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4PDJBM4FDVSJUZ"ENJOJTUSBUJPO 'BDU4IFFU +BOVBSZ t 'JFME(VJEFUP&TUBUF1MBOOJOH %POBME$BE )FBMUI"ĊBJST ЅF1PMJDZ+PVSOBMPGUIF)FBMUI4QIFSF 'FCSVBSZ .BSLFU8BUDI*MMOFTTBOE*OKVSZBT$POUSJCVUPSTUP#BOLSVQUDZ )FBMUI"ĊBJST8FC&YDMVTJWF 'FCSVBSZ "%*4("#"3 Photo by Howard Baker, senior member of the firm, and former chief of staff to the president, Senate majority leader and ambassador to Japan.
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GBJ Legals 42 14 The Fellows Program of the 18 The Georgia Security and Lawyers Foundation of Georgia Immigration Compliance Act: by Lauren Larmer Barrett Comprehensive Immigration 46 Reform in Georgia– Georgia Bar Foundation Awards “Think Globally….Act Locally” $6.6 Million by Mark J. Newman and Hon-Vinh by Len Horton Duong 52 18 Fueling the Pipeline: State Bar U.S. Immigration Alternatives of Georgia Diversity Program’s 34 for International 15th Annual CLE and Luncheon Businesspersons, Employees and by Marian Cover Dockery Investors Who Wish to Enter the United States Departments by Robert E. Banta 66 6 From the Editor-in-Chief 26 8 From the President No Second Chances: 10 From the Executive Director Immigration Consequences of From the YLD President Criminal Charges 12 by Christina Hendrix and Olivia Orza 60 Bench & Bar 66 Office of the General 34 Counsel Understanding the Effects Lawyer Discipline of Consular Relations on the 68 Representation of Foreign 72 Law Practice Management Nationals 76 South Georgia Office by Carine L. Rosalia-Marion 78 Pro Bono 72 80 Section News GBJ Features 82 Casemaker 38 84 Writing Matters Immigration Policy and the 84 88 In Memoriam Local Housing Ordinance Explosion: Are Local 90 Book Review Communities Running Afoul 92 CLE Calendar of the Preemption Doctrine? 94 Notices by Anne E. Andrews 98 Classified Resources 100 Advertisers Index Cover photo by Lori Greig “And Justice for All” 20072 State Bar Campaign for the Georgia Legal Services Program, Inc.
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Significant gifts will be included in the £ä{Ê >ÀiÌÌ>Ê-ÌÀiiÌ]Ê-ÕÌiÊÓxäÊÊUÊÊÌ>Ì>]ÊÊÎäÎäÎ Honor Roll of Contributors in the Georgia Bar Journal. Editorial Board Quick Dial Donald P. Boyle Jr. Attorney Discipline 800-334-6865 Editor-in-Chief ext. 720 404-527-8720 Robert Henry Beer Felipe Manuel Nunez Consumer Assistance Program 404-527-8759 Erika Clarke Birg Olivia Orza Conference Room Reservations 404-527-8712 Clayton Owen Carmack Jason Pedigo Fee Arbitration 404-527-8750 Linda Gail Carpenter Susan Lee Rutherford CLE Transcripts 404-527-8710 Diversity Program 404-527-8754 Charles Madden Cork III Paul Gregory Sherman ETHICS Hotline 800-682-9806 Bridgette Eckerson Robert R. Stubbs 404-527-8741 John Michael Gross Martin Enrique Valbuena Georgia Bar Foundation/IOLTA 404-588-2240 Georgia Bar Journal 404-527-8736 Ann A. Hammenecker Kristin H. West Lawyer Assistance Program 800-327-9631 Jennifer Carpenter Kane Pamela Y. 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Gaulden Jr., 85-86 OF CITATION (18th ed. 2005). Please address unsolicited William Wall Sapp, 99-00 Jerry B. Blackstock, 84-85 articles to: Donald P. Boyle Jr., State Bar of Georgia, Communications Department, 104 Marietta St. NW, Suite Theodore H. Davis Jr., 97-99 Steven M. Collins, 82-84 100, Atlanta, GA 30303. Authors will be notified of the L. Brett Lockwood, 95-97 Walter M. Grant, 79-82 Editorial Board’s decision regarding publication. Stephanie B. Manis, 93-95 Stephen E. Raville, 77-79 The Georgia Bar Journal welcomes the submission of news about local and circuit bar association happenings, Bar William L. Bost Jr., 91-93 members, law firms and topics of interest to attorneys in Georgia. Please send news releases and other information to: Sarah I. Coole, Director of Communications, 104 Officers of the State Bar of Georgia Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: Gerald M. Edenfield President 404-527-8791; [email protected]. Jeffrey O. Bramlett President-Elect Disabilities Jay Cook Immediate Past President If you have a disability which requires printed S. Lester Tate III Treasurer materials in alternate formats, please contact the ADA coordinator at 404-527-8700 or 800-334-6865. Bryan M. Cavan Secretary Elena Kaplan YLD President Headquarters Josh Bell YLD President-Elect 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 800-334-6865, 404-527-8700, FAX 404-527-8717 Jonathan A. Pope YLD Past President Visit us on the Internet at www.gabar.org. South Georgia Office Communications Committee 244 E. Second St. (31794) P.O. Box 1390 Nancy Jean Whaley Chairperson Tifton, GA 31793-1390 800-330-0446, 229-387-0446, FAX 229-382-7435 Communications Staff Publisher’s Statement Sarah I. Coole Director The Georgia Bar Journal (ISSN-1085-1437) is published six Jennifer R. Mason Assistant Director times per year (February, April, June, August, October, Johanna B. Merrill Section Liaison December) with a special issue in November by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Stephanie J. Wilson Administrative Assistant Georgia 30303. ©State Bar of Georgia 2007. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in Atlanta, Georgia and addi- tional mailing offices. Opinions and conclusions expressed The opinions expressed in the Georgia Bar Journal in articles herein are those of the authors and not necessar- ily those of the Editorial Board, Communications are those of the authors. The views expressed herein Committee, Officers or Board of Governors of the State Bar are not necessarily those of the State Bar of Georgia, of Georgia. Advertising rate card will be furnished upon request. Publishing of an advertisement does not imply its Board of Governors or its Executive Committee. endorsement of any product or service offered. POSTMAS- TER: Send address changes to same address. From the Editor-in-Chief
Introduction to Special Immigration Issue
ack Paar, the former host of the Tonight Show, misconduct can be “convictions” under immigration law that result in deportation. once quipped, “Immigration is the sincerest Carnie L. Rosalia-Marion writes about “Under- standing the Effects of Consular Relations on the form of flattery.” America’s many strengths, Representation of Foreign Nationals.” The Vienna J Convention on Consular Relations provides foreign both natural and economic, attract people from all over nationals in criminal and guardianship/trusteeship proceedings with certain rights to communication with the world. Part of the attraction of the United States is its consular officials of their native country. Attorneys representing foreign nationals need to know their Constitution and legal system. How our great country clients’ rights in this regard. At the local level, a housing ordinance passed by responds to the millions of immigrants who want to Cherokee County in 2006 is the subject of a feature by Anne Andrews, “Immigration Policy and the Local become part of American society depends on the hard Housing Ordinance Explosion: Are Local Communities Running Afoul of the Preemption Doctrine?” The work of judges, legislators and practicing lawyers. Cherokee County ordinance made it unlawful for any landlord in the county to “let, lease, or rent a dwelling The focus of this special issue of the Georgia Bar unit to an illegal alien, knowing or in reckless disregard Journal is immigration law. You will find six immigra- of the fact that an alien has come to, entered, or remains tion-related articles and features. in the United States in violation of law.” The article The effect of state immigration law is the subject of describes how the ordinance was immediately “The Georgia Security and Immigration Compliance embroiled in litigation and discusses other, similar ordi- Act: Comprehensive Immigration Reform in Georgia,” nances (and litigation) in other states. by Mark J. Newman and Hon-Vinh Duong. The The last immigration-related item in this issue is a Georgia Security and Immigration Compliance Act, book review by Bob Beer of Deportation Nation: which took effect on July 1, 2007, places new require- Outsiders in American History, by Daniel Kanstroom of ments on public employers, immigration assistance Boston College Law School. Deportation Nation services and public contractors to verify the immigra- describes the history of immigration law and policy tion status of persons whom they employ or to whom and the cautious welcome that immigrants have they provide counseling services. encountered here since 1776. Robert Banta’s article, “U.S. Immigration We hope that you will find this special issue of the Alternatives for International Businesspersons, Georgia Bar Journal interesting as well as useful in your Employees and Investors Who Wish to Enter the practice. Many thanks to all Georgia Bar Journal United States,” provides a detailed analysis of the Editorial Board members, especially Bob Beer and numerous visa formats and alternatives under current Olivia Orza, as well as Sarah Coole and the rest of the law. Different visas are available depending on the Georgia Bar Journal staff, for their hard work in helping immigrant’s skills and education. Banta also details the to put together this immigration-themed issue. various non-immigrant visas for businesspersons, pro- fessionals and investors. Donald P. Boyle Jr. is the editor-in-chief In “No Second Chances: Immigration Consequences of the Georgia Bar Journal. He can be of Criminal Charges,” Christina Hendrix and Olivia reached at [email protected]. Orza highlight the traps in criminal proceedings involving foreign nationals. The article details how cer- tain state-law violations and even domestic relations
6 Georgia Bar Journal Our Members Say It Best— “AILA is i very active, i effective, ff i and d an indispensable i di bl organization”ii” “....an invaluable resource....” “I love being an AILA member. It’s worth every penny!”
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American Immigration Lawyers Association • Founded in 1946 From the President
by Gerald M. Edenfield photo by www.lorigrice.com
Lawyers Should Be a Resource for Lawmakers
he first several months of my term as president expensive and demanding re-election campaigns just for the privilege of doing it all over again. of the State Bar have been filled with meetings Next month our state senators and representatives will gather at the Capitol for the 2008 legislative ses- in all parts of the state, speeches to local bar sion. Their responsibilities are greater than ever. T Establishing the priorities for more than $20 billion in associations, civic clubs and other groups, and plenty of annual state expenditures is just the beginning. The public policy issues related to conversations with my fellow education, health care, trans- “I am suggesting that, at the portation and public safety Georgia lawyers on any num- have become more complicat- local level, each of us contact ed by the year as our state’s ber of Bar issues. In my “spare population continues to grow our legislators and offer our by leaps and bounds. time,” I am usually on the road Writing laws and balancing services as a resource when budgets that meet the diverse traveling from one meeting to needs of a state like ours has they are drafting or never been easy, and it is so another, and almost never in much more challenging today. We should all appreciate the my law office in Statesboro. considering legislation.” sacrifices our “citizen legisla- tors” make, not only during Some have suggested that I am getting a taste of what the official 40-day legislative session but, these days, it’s like to be an elected official. If that’s the case, then my year-round. We should be glad there are admiration for those who devote so much time to public leaders—including more than 30 Georgia lawyers—who service has increased exponentially. Members of the are willing to take the time away from their families, Georgia General Assembly, for example, not only carry their professional careers and their would-be leisure out a schedule like mine, every two years they run time to serve in this capacity.
8 Georgia Bar Journal As the legislative session nears, I levels for more than 200 years. just those with an impact on the jus- want to discuss the special relation- They formed a governmental struc- tice system or practice of law. We ship the State Bar has with the ture whereby the functions of should not only continue to provide General Assembly and what we can establishing, enforcing and inter- this type of assistance; I am suggest- do to strengthen that relationship preting laws would be conducted ing that, at the local level, each of us for the benefit of all Georgians. from three distinct branches. contact our legislators and offer our This year, State Bar leadership As Justice Benjamin N. Cardozo services as a resource when they are has been proactive in a renewed noted some time ago, “The doc- drafting or considering legislation. effort to cultivate stronger relation- trine of the separation of powers The same is true for our relation- ships with our legislators and with was adopted by the Convention of ship with the executive branch. Our Gov. Sonny Perdue. At each of our 1787, not to promote efficiency but experience in working with the Executive Committee meetings to preclude the exercise of arbitrary governor’s office on various policy being held in locations around the power. The purpose was not to initiatives through the years has state, lawmakers from that region avoid friction, but, by means of the been very good. For example, Gov. have been invited, and many have inevitable friction incident to the Perdue has been helpful to the Bar attended and participated in a dia- distribution of the governmental programs related to assisting vic- logue with Bar members. powers among three departments, tims of domestic violence and the At every opportunity, I thank to save the people from autocracy.” creation of the Business Court pilot our elected officials for their public Through the authority of the project in Fulton County. service and ask what the State Bar Supreme Court of Georgia, the State Whether we are associated with can do to help them. Members of Bar has official regulatory responsi- the legislative, judicial or executive the Executive Committee, local bilities over the practice of law in branch of state government, we all judges and lawyers, Board of our state. Therefore, as an organiza- have one thing in common: we Governors representatives and tion, we are very much a part of the have taken an oath to uphold the local news media attend, and this judicial branch of state government. constitutions of both our nation helps build firm relationships with While the State Legislature and and our state. In other words, we our friends in the legislative and the State Bar represent separate are all in this together. executive branches of government. branches of government, and there Let’s take this opportunity to This is a healthy beginning, but I will be policy issues on which we salute those who have given up encourage you to extend the grass- disagree with the views of some their time to represent our commu- roots element of this effort by get- legislators, I believe it is in the best nities at the state Capitol. At the ting to know your representatives interests of lawyers and lawmakers same time, let’s remember to lend and senators and letting them know alike to build and sustain strong our talents and expertise to the you appreciate their service and are working relationships—with mutu- process when we can. The end willing to work with them when al respect for each other’s view- result will be a better understand- they need help with legal issues. point. I believe the State Bar should ing among branches of govern- Sometimes lawyers tell me they commit to be a working partner in ment—and better laws for our need to meet with their legislators the effort to find common ground state. but don’t know how to go about it. to help shape public policy that From my experience over the past continues to reflect the principles of Gerald M. Edenfield is the 30 years, I don’t understand how our U.S. and Georgia Constitutions. president of the State Bar of that is possible. Each campaign This does not mean we will abdi- Georgia and can be reached season, candidates show up in my cate our responsibility to form a at [email protected]. office seeking contributions, and I legislative agenda on specific generally try to help each one. The issues that address people’s rights A-A-A common story is I have to do this in to access to justice. We will strong- ATTORNEY REFERRAL SERVICE order to “buy back” my waiting ly advocate or oppose proposed room chair for a paying client! legislation on these issues and let Attention - New Attorneys! However, the truth is candidates our legislators know why the State Just went out on your own? New do this out of necessity and not by Bar has taken a certain position. to Georgia? Let us jump start your choice. I understand this and do But I want us to go beyond leg- practice. We have helped many. my best to support them. islative advocacy when it comes to And they will tell you. The divine wisdom of our communicating with our legisla- References available. Founding Fathers—in establishing tors. Through the years, Georgia (800) 733-5342 a system of checks and balances lawyers have been asked for and 24-hour paging: among the legislative, executive offered their assistance on legal (888) 669-4345 and judicial branches—has served questions related to a variety of pro- [email protected] us well both at the federal and state posed legislative measures—not
December 2007 9 From the Executive Director
by Cliff Brashier
An Invitation to Your Community’s Students
aw-related education (LRE) for our youth is the President Donna Barwick. As proof of Georgia’s suc- cess with the mock trial program, teams from South legacy that our generation of lawyers can leave Gwinnett, Clarke Central and Jonesboro high schools have won the national championships. Apart from for the future of America’s system of justice. It Iowa—who also boasts three national champions—no L other state has produced more winning teams than is the beacon of light shining on Georgia. Law-related civic education the hope of all citizens for their “With the purchase of the helps to develop young citizens who can sustain and build our children’s freedoms and liberties. Bar Center came a new nation by making a reasoned and informed commitment to At the Jan. 15, 2005, dedication opportunity to help children democracy. Law-related civic of the Bar Center, Supreme education has demonstrated Court of the United States Justice in elementary, middle and promise in preventing delin- Anthony M. Kennedy said, “One quency by fostering social of the greatest duties of any gen- responsibility, personal commit- eration, and particularly of its high schools to better ment for the public good and bar, is to transmit the idea of effective participation among freedom and the rule of law to understand and appreciate our nation’s youth. Maintaining the next generation.” our democracy is not an easy For 20 years the State Bar of the justice system.” task, for each succeeding genera- Georgia, with the assistance of tion must commit itself to the lawyer coaches and school teach- ideals and institutions that com- ers, has made our high school mock trial program one prise our democratic foundations. Our democracy is a of the best in the United States. There are currently 123 living, constantly evolving set of principles that must high school teams registered in Georgia, and at least be nurtured and guarded by all its citizens. Mock trials two teachers and three attorneys coach each team. The are designed to give students an inside perspective of program was founded as a YLD initiative under 1987- the legal system, providing them with an understand- 88 YLD President John Sammon, and was given full ing of the mechanism through which society chooses to committee status the following Bar year by then YLD resolve many of its disputes. Students involved with a
10 Georgia Bar Journal competitive mock trial team benefit from improved critical thinking and communication skills and they learn the importance of quality preparation, team- Journey Through Justice work and following rules. Additionally, the experi- ence they gain, through oral advocacy and network- Inviting Young People to Come ing with other students, teachers, attorneys and Inside the Law Through an Interactive judges will stand them in good stead throughout LRE Learning Experience. their lives, regardless of their chosen career path. In 2009, Georgia will host the High School Mock Trial’s annual championship. Hosting the national mock trial competition is an exceptional way to high- light what the Bar and the legal community in Georgia are doing to promote LRE in the state and nationwide. With the purchase of the Bar Center came a new opportunity to help children in elementary, middle and high schools to better understand and appreciate the justice system. At the 2005 dedication, Justice Kennedy urged Bar leaders to use the Bar Center to Tour Highlights “invite young people to come inside the law.” Listen as “Mrs. Woodrow Wilson” brings The Bar’s Journey Through Justice program does just that. From the moment students enter the Bar history alive Center, they are greeted by local, legal history in the See the Atlanta law office of President form of a replica of President Woodrow Wilson’s Woodrow Wilson 19th century Atlanta law office. The students are then Expand your legal knowledge at the law taken to the third-floor conference center where they school attend a mini law school and then take a “bar exam.” After passing their bar exam, students don robes and Take a special bar exam fill the jury box in the Bar’s mock courtroom as they Try a case in the mock courtroom participate in age-appropriate cases, where they play Learn about America’s legal past in the the roles of judge, lawyers, witnesses and juries. Museum of Law Whether they are defending the Big, Bad Wolf in the Enjoy movie clips of Hollywood and the law Three Little Pigs trial or cross-examining Little Red Riding Hood, students are engaging in our justice in “Reel Justice” system in a relevant, tangible way. To finish off the For more information or to schedule your field afternoon, the students tour the Museum of Law and trip, contact Marlene Melvin at 770-267-3309 or view Reel Justice, a 12-minute compilation of movies [email protected]. depicting a variety of law-related courtroom scenes and cases. I am asking you to share the State Bar’s LRE oppor- tunities with your local school teachers, principals, administrators and school boards. The Journey Through Justice tour is a free, educational field trip like no other in the state and every school that has come once has elected to return. The Bar has pro- duced an LRE brochure which you can obtain by con- tacting the Communications Department at 404-527- 8792—that you can use to share with them, or you can simply share this column or direct them to the Bar’s website at www.gabar.org. As always, your thoughts and suggestions are wel- come. My telephone numbers are 800-334-6865 (toll free), 404-527-8755 (direct dial), 404-527-8717 (fax) and 770-988-8080 (home).
Cliff Brashier is the executive director of the State Bar of Georgia and can be reached at [email protected].
December 2007 11 From the YLD President
by Elena Kaplan
Leveraging Your Mind
n Shakespeare’s Hamlet, Lord Polonious advises people from middle and lower income backgrounds. These people might otherwise have felt that law school his son “neither a borrower nor a lender be.” (and even college) was closed to them, but because of the availability of loans, they are now able to leverage Lord Polonious was speaking of borrowing their minds in order to build a better future. I The ease of getting a loan also impacts how one ana- between friends and how it could cause the destruction lyzes the cost of law school. Instead of looking at the total cost, one might treat it like buying a house and of the friendship; however, prudence is also important only look at the future monthly payment. However, because they are future monthly payments and are con- when borrowing from a financial institution. templated before one knows one’s other cost of living variables, their impact is the- Young lawyers are apt to “I feel extraordinarily lucky oretical and distant and, have a variety of debt: stu- thus, might not have what dent loans, a car note, a mort- should be the appropriate gage, credit card debt, and, that, after a few stumbles, I impact on one’s decision for some, business start-up about where to attend. debt. In some respects, this have found a niche that I find I am a part of the group debt is good because it pro- that was only able to attend motes upward mobility and, intellectually stimulating and law school because of easy in a broader sense, keeps our credit. My parents were able economy moving. However, personally fulfilling. However, to support me through col- there are downsides to the lege. When I began law debt, including the impact it there have been points along school, however, my brother may have on our profession, was in his second year of col- as well as the borrower’s the way where I have consid- lege. My parents were in no mental state. position to fund both of us, so Over the past several I had to find a way to pay for decades, college and law ered ditching it all and going law school on my own. I school tuition has increased at turned to readily available a rate that has outpaced infla- to the business world.” federal and private student tion. Scholarships and grants loans and borrowed more have not kept up. Instead, borrowing, both through fed- than $30,000 each year to attend American University’s eral student loans and private loans, has filled the gap. law school in Washington, D.C. In retrospect, I am also Because of the ease of getting a loan, the demographics guilty of not appropriately taking cost into consideration of law school students have expanded to include more when choosing where to attend; although, I did deter-
12 Georgia Bar Journal mine at the time that I would have cle with leather seats and a sunroof. that would otherwise be satisfying to earn at least $50,000 per year after A lot of fun—yes; a great invest- without the shadow of the debt. law school in order to service the ment—no. Some such splurges are, So, why is the golden handcuffs debt and maintain my then current of course, okay. The trouble comes issue relevant to the profession? standard of living in my 600 square when every purchase must be the After all, isn’t it a great thing for a foot efficiency apartment. nicest of that particular item with firm when an associate buys a car On the positive side, the avail- the justification being, “I work hard and a house because then they’ve ability of loans has resulted in the and I deserve it.” settled in and have to keep work- profession becoming more diverse. Another type of debt that young ing? Yes. (Although, it is just as However, it has also resulted in lawyers might have is business start likely that the associate will switch lawyers who must for the first 10-20 up debt. This could take the form of firms a few times.) However, there years of practice make choices sur- a formal loan or line of credit or just is a problem if we are losing smart, rounding their career in a manner living off your credit cards until you capable lawyers in the middle of that ensures they can service that settle a case. Business debt can be their career because they never debt. This decision making affects particularly vicious if you get found fulfillment in practicing law. where they practice geographically, caught in a cycle of borrowing to Additionally, there is a problem if what practice area they pursue, for live and just using settlements and lawyers do not fulfill their obliga- whom they can work, and how client fees to pay down debt. This is tion to serve those less fortunate much time they can allocate to pub- because you never get ahead; you through pro bono service. Further, lic and pro bono service. are just constantly living off of your there is a problem when the num- Of course, student loan debt is not financial expectations. ber of lawyers serving in the legis- the only type of debt under which So, why is all this debt a prob- lature is at an all time low. young lawyers may be burdened. lem? If the young lawyer can serv- I feel extraordinarily lucky that, Shortly after graduating from law ice the debt, is it really a big deal? after a few stumbles, I have found a school and starting that first job, Absolutely, for a number of rea- niche that I find intellectually stim- many young lawyers buy a new car sons. First, the debt and spending ulating and personally fulfilling. to replace the model they’ve been choices are a problem if they result However, there have been points driving since high school. There’s in a young lawyer not maximizing along the way where I have consid- also the new apartment that must be their retirement savings. While it ered ditching it all and going to the furnished. And a few years down seems like there are many years business world. I have friends who the road, many young lawyers buy between the beginning of practice have done exactly that—practiced their first house or condominium, and retirement, the fact is that for a period of time, paid off their requiring additional cash infusions before long, marriage and kids and student loans, and left for seeming- for decorating and more furniture. career changes can result in it ly greener pastures. Still others are Chances are good that some of these becoming harder, not easier, to laboring away, resigned to their lot acquisitions will be financed save. Furthermore, if tragedy and assuaging their unhappiness in through loans. Add to that any lin- strikes, a nest egg (along with various excesses. gering credit card debt from college proper insurance) will provide an I don’t mean to suggest that I and law school and you find that a excellent safety net. think that debt is the only reason young lawyer may have more than Second, and perhaps more rele- for these issues facing the profes- $40,000 in consumer debt. vant to our profession, the debt is sion. However, I do think they are Unfortunately, the decisions that similar to golden handcuffs and part of the equation; a part that we young lawyers make with their narrows the career choices one can can and should address by educat- finances are not always instructed make. This has a number of reper- ing young lawyers about the by their long-term interests. For cussions. It may mean that the impact of the choices they make example, my anecdotal experience young lawyer is not pursuing a and helping them make choices has been that most young lawyers practice that best meshes with their that are best for their long-term are not maxing out their contribu- skills. It may mean that the young goals. After all, leveraging your tions to their 401(k) plan—some are lawyer is not able to spend time mind does not lead to building a not contributing at all. In many doing pro bono or public service better future if that future does not instances it seems that the choices work. It may mean that the young provide satisfaction and fulfill- young lawyers make are impacted lawyer is prevented from follow- ment. more by a common view of what ing their destiny. It may even mean lawyers should be and what they that the unhappiness the young Elena Kaplan is the president of should have. Take, for example, the lawyer feels because of the burden the Young Lawyers Division of the car bought shortly after law school. of their debt affects other areas of State Bar of Georgia and can be When I bought mine—a Jeep Grand life and causes the young lawyer to reached at [email protected] or Cherokee—I insisted on a new vehi- dislike things (such as that first job) 404-880-4741.
December 2007 13 A Look at the Law
The Georgia Security and Immigration Compliance Act: Comprehensive Immigration Reform in Georgia– “Think Globally….Act Locally”
by Mark J. Newman and Hon-Vinh Duong
gainst a backdrop of a globalizing econo-
my, heightened awareness of terrorism and A security issues, and growing numbers of undocumented immigrants, immigration reform has
become a hot topic. With Congress’s failed immigration
reform efforts, state legislatures have passed a raft of
bills addressing varied immigration-related topics from
eligibility for employment and public benefits to human
trafficking and law-enforcement guidelines. Thirty-two
states now have immigration laws of their own.
In an effort to cope with the void left by the federal government and the surfeit of immigrants into the state, Georgia’s state legislature has enacted one of the strictest and most comprehensive bills, the Georgia Security and Immigration Compliance Act (GSICA).1 Signed into law by Gov. Sonny Perdue in April 2006,
14 Georgia Bar Journal GSICA has been both a benchmark exempt from compliance with fed- benefits. Section 6, referred to as the for other states’ legislation and a eral employment verification proce- Registration of Immigration Assis- focal point for political debate. dures, any person not directly com- tance Act, establishes ethical stan- GSICA, which took effect on July 1, pensated or employed by the tax- dards for immigration assistance 2007,2 will have far-reaching effects paying employer, and any individual provided by private individuals because it requires all public who presents a valid Georgia driver’s who are not licensed attorneys, not- employers, their contractors and license or identification card issued by for-profit organizations recognized subcontractors to participate in a the Georgia Department of Driver by the Board of Immigration Federal Work Authorization Services. Although federal work Appeals and other organizations Program to verify the employment authorization requires an I-9 providing assistance without com- eligibility of all new employees.3 Employment Eligibility Verification pensation.15 GSICA also limits the Traditionally a federal responsi- Form, this driver’s license “loop- services that these organizations bility, immigration has recently hole” may allow a single fraudulent may provide and requires a license become an important topic for the identification form to circumvent from the Secretary of State. states because of their continuing the tax deduction requirement. Concerning public benefits, Section responsibility for educating, caring Second, Section 8 requires employers 9 of GSICA requires that state agen- for, punishing, and integrating the to withhold a 6 percent state income cies and local governments verify growing numbers of immigrants, tax from the amount reported on the legal status of all applicants 18 particularly in light of the federal IRS Form 1099 for compensation or older before providing any state government’s failure to provide paid to workers who are unable to and local benefits.16 The bill does any substantial immigration reform. provide a valid taxpayer identifica- provide certain exemptions for Immigration legislation has raised tion number or who have provided emergency medical care and disas- some important issues of federal- an incorrect taxpayer identification ter relief, immunizations, prenatal ism as the states have begun to number or one issued to a nonresi- care, treatment of communicable assert substantial authority in this dent alien.8 This provision took diseases and other assistance speci- area of law by introducing more effect on July 1, 2007. Failure to fied by the U.S. Attorney General as than 1,150 immigration-related bills withhold taxes in these circum- necessary for life and safety.17 in 2007, doubling the number intro- stances renders an employer liable GSICA excludes, however, organ duced in 2006.4 In a further twist, for the taxes unless exempt from transplants from emergency med- state laws such as GSICA mandate federal withholding relative to that ical care. Consequently, immigra- participation in and compliance employee pursuant to a properly tion status verification will become with federal programs. filed IRS Form 8233.9 a prerequisite for an organ trans- As one of the most comprehen- With regard to public safety and plant.18 To receive these public ben- sive immigration reform laws, law enforcement, GSICA Section 3 efits, applicants must submit an GSICA covers many disparate establishes penalties for human traf- affidavit that they are either a U.S. issues—some connected only by the ficking for labor and sexual servi- citizen or a legal alien; and eligibili- overarching heading of immigra- tude.10 Section 4 allows for appro- ty of benefits for legal aliens must tion. Section 2 of GSICA mandates priately trained Georgia peace offi- be confirmed through the that all public employers, their con- cers to enforce immigration and cus- Systematic Alien Verification of tractors and subcontractors with toms laws.11 For the requisite train- Entitlement (SAVE) program of the 500 or more employees register and ing, GSICA provides that the state of Department of Homeland Security participate in the Federal Work Georgia and the U.S. Department of (DHS).19 Authorization Program by July 1, Justice or Department of Homeland Aside from the tax provisions 2007.5 Smaller employers are Security coordinate through a previously mentioned, GSICA’s phased in over the next two years.6 Memorandum of Understanding.12 requirements for public employers GSICA also has two tax provisions In a similar vein, Section 5 requires and government contractors’ par- that are applicable to all employers. that all county, municipal, and ticipation in a Federal Work First, GSICA prohibits employers regional jails determine the national- Authorization Program will have from deducting annual wages or ity of prisoners charged with a felony the greatest impact on employers remuneration of $600 or more paid or DUI.13 Jail officials must then in Georgia. Pursuant to GSICA, the for labor services as allowable busi- make a reasonable effort to verify Georgia Department of Labor ness expenses for state income tax the lawful presence of foreign (GADOL) has issued a set of rules purposes unless the employee is nationals and shall report to the requiring participation in the E- authorized to work under federal Department of Homeland Security VERIFY program.20 This require- law.7 This tax provision applies those who have not been lawfully ment will additionally burden a only to employees hired on or after admitted into the United States.14 government verification system Jan. 1, 2008. Notably, the law does GSICA also addresses immigra- already known to have a high rate not apply to any Georgia business tion assistance services and public of verification errors.
December 2007 15 First, GSICA specifically such employers regardless of size status for any contracts in connec- requires all public employers to on July 1, 2009. It is unclear from tion with the primary contract; and participate in the E-VERIFY pro- the text of the law, however, (3) a provision stating that compli- gram. GSICA defines a public whether a smaller contractor or ance with GSICA will be attested to employer inclusively as “every subcontractor would be subject to by an affidavit, a sample of which department, agency or instrumen- the earlier dates by virtue of a con- is provided.24 Further, the GADOL tality of the state or a political sub- tract with a larger public employer rules state that the contractor “will division of the state.”21 or contractor. For example, if ABC secure from such subcontractor(s) Additionally, GSICA requires that Co., with 600 employees, contracts attestation of the subcontractor’s contractors enroll in the E-VERIFY to perform services for a public compliance with O.C.G.A. 13-10-91 program before a public employer employer, and XYZ Co., with 200 [GSICA] and Rule 300-10-1-.02 by may enter into a contract with that employees, contracts with ABC to the subcontractor’s execution of the contractor for the physical perform- work on that public employer con- subcontractor affidavit” provided ance of services within Georgia: tract, it is uncertain whether XYZ in the rules.25 Co. must comply by 2007 or 2008. The GADOL’s rules have not No contractor or subcontractor Similarly, it is unclear to which clarified uncertainties about the who enters a contract with a pub- date a subcontractor with more extent of an original contractor’s lic employer shall enter into such than 500 employees would be sub- responsibility to oversee its subcon- a contract or subcontract in con- ject if that company contracted to tractors’ compliance with GSICA. nection with the physical perform- perform services for a contractor Because the original contractor only ance of services within this state with only 200 employees that was has to secure an affidavit from the unless the contractor or subcon- not yet subject to GSICA. Also, the subcontractor attesting to compli- tractor registers and participates law does not provide any guidance ance, it is unclear whether the con- in the federal work authorization for determining who counts as an tractor would have to take further program to verify information of employee or whether employees steps to ensure the subcontractor’s all new employees.22 outside of Georgia count towards compliance with GSICA. the total figure. To participate in the E-VERIFY It is important to note that this E- To satisfy the requirements of program, an employer must enter VERIFY program requirement also GSICA and the GADOL’s rules, into a Memorandum of Under- applies to any subsequent contrac- public employers and their con- standing (MOU) with the SSA and tor’s or subcontractor’s entering tractors and subcontractors must DHS stating that the employer will into contracts related to an original participate in the E-VERIFY pro- comply with all of the rules and contract with a public employer. gram. Operated by the U.S. requirements of the E-VERIFY pro- For example, if ABC Co. contracts Citizenship and Immigration gram. As an alternative to actively with the Department of Aviation, a Services Bureau of DHS and the participating in the registration and public employer, to provide servic- Social Security Administration verification process, employers es at Hartsfield-Jackson Airport (SSA), the E-VERIFY program was may also utilize a third party or and also contracts with SUBK Co. established under the Illegal designated agent to conduct the E- to provide services related to that Immigration Reform and VERIFY program on the employer’s contract, then SUBK Co. will be Immigrant Responsibility Act of behalf. The DHS maintains a list of required to participate in the E- 1996 and is an electronic verifica- authorized designated agents, but VERIFY program. This requirement tion system that compares does not endorse any of these would also extend to any addition- Employment Eligibility I-9 forms agents. When using a designated al contracts related to the original with SSA and DHS databases to agent, the employer signs a com- contract that ABC or SUBK enter verify employment eligibility. The bined MOU with both the govern- into with other subcontractors. GADOL rules require the inclusion ment and the designated agent, and The timing of registration and of certain provisions in the con- the designated agent executes the participation in the E-VERIFY pro- tracts between public employers E-VERIFY program registration gram is scheduled under GSICA and contractors, including the fol- and verification process. Two according to a phased calendar that lowing: (1) provisions stating that important considerations about the affects employers depending on compliance with GSICA and the E-VERIFY program are that regis- their overall size.23 Public employ- rules are conditions of the contract tration in the E-VERIFY program is ers and their contractors of 500 or and a provision outlining the done on a state-by-state basis and that more employees are subject to the phased employee number cate- registration is worksite-specific. law as of July 1, 2007, while those gories of GSICA for the contractor Consequently, employers required employers of 100 or more employ- to indicate its applicable status; (2) to participate in the E-VERIFY pro- ees will be subject on July 1, 2008. a provision stating that the contrac- gram in Georgia will not be Finally, the law will apply to all tor will secure a subcontractor’s required to participate in other
16 Georgia Bar Journal states merely because of their par- gration bandwagon. In addition, Endnotes ticipation in Georgia. Further, E- municipalities are joining the 1. Georgia Security and Immigration VERIFY program worksite speci- parade. In metro Atlanta, Gwinnett Compliance Act, 2006 Ga. Laws ficity allows an employer to “opt County has passed a far-reaching 105 (codified as amended in scat- out” of particular work sites that immigration ordinance covering all tered sections of O.C.G.A.). are not subject to GSICA’s require- those who contract with the coun- 2. Id. ments. For example, ABC Co. has ty—it covers goods and services 3. O.C.G.A. §§ 13-10-90, 13-10-91 two worksites in Georgia: one site and requires E-VERIFY compliance (Supp. 2006). involves a contract with a GSICA for all employees. Because E-VERI- 4. See http://www.ncsl.org/ “public employer,” while the other FY is only available for new hires, programs/press/2007/pr070517 site is covered by a contract with a employers are in a catch-22. This santos.htm. private company. ABC Co. may opt ordinance also contains serious 5. O.C.G.A. § 13-10-91(b) (Supp. 2006). out of participating at the private financial sanctions, including dam- 6. Id. § 13-10-91(b)(3). worksite while submitting to the ages for breach of contract. Between 7. Id. § 48-7-21.1 (Supp. 2007). employment verification process DHS heightened enforcement and 8. Id. § 48-7-101(i) (Supp. 2007). only at the public employer site. the one-two punch of new state and 9. Id. § 48-7-101(i)(2). The deduction GSICA only requires employers to local immigration laws, employers and withholding provisions in verify the status of “new employ- are faced with a daunting compli- SB529 are similarly codified in the ees.”26 Therefore, employers with ance task and some difficult busi- recently enacted O.C.G.A. § 48-7- multiple worksites may be able to ness decisions. 21.1 (Supp. 2007), amending the shift existing employees to a work state’s tax laws. site subject to GSICA and hire new Mark J. Newman 10. Id. § 16-5-46 (2007). employees for sites not subject to heads the immigration 11. Id. § 35-2-14 (2006). GSICA. The E-VERIFY program is law team at Troutman 12. Id. only available to verify the status of Sanders LLP and serves 13. Id. § 42-4-14 (Supp. 2006). new employees. on the firm’s Diversity 14. Id. According to its published rules, Committee. Newman’s 15. Id. §§ 43-20A-1 to -20A-4 (Supp. the GADOL intends to implement practice ranges from the transfers 2006). a Random Audit Program to of international business execu- 16. Id. § 50-36-1 (2006). enforce compliance with GSICA.27 tives to the defense of corpora- 17. Id. § 50-36-1(c). Although the plan allows the tions charged with employer sanc- 18. Id. § 50-36-1(c)(2). GADOL to conduct investigations tion violations. Newman received 19. Id. § 50-36-1(d), (e). and inspections to determine an his undergraduate degree from 20. GA. COMP. R. & REGS. § 300-10-1 employer’s compliance, the pro- Princeton University and his law (2007). The Georgia Department of gram lacks the force of substantial degree from the University of Transportation has also posted a penalties and it awaits funding Miami School of Law. notice on its website requiring con- from the General Assembly.28 tractor compliance with the DHS Employers also need to remain Hon-Vinh Duong is an Image Program. See Special Notice alert to the federal government’s attorney in the immi- to Contractors (Apr. 20, 2007) at N- increased enforcement efforts. As gration practice group 7, available at http://tomcat2.dot. part of its Secure Border Initiative, at Troutman Sanders state.ga.us/ContractsAdministration ICE has begun conducting work- LLP. He serves as a /uploads/07May_NTC.pdf. site raids that focus not only on legal advisor in all 21. O.C.G.A. § 13-10-90(3) (Supp. 2006). identifying illegal immigrants but facets of business immigration law 22. Id. § 13-10-91(b)(2) (Supp. 2006). also on employers who knowingly including analysis and processing GSICA does not appear to apply to continue to hire them. These raids of U.S. visas and immigration poli- contractors who only provide and inspections could substantially cy and guidance. Duong received goods. affect labor supplies at worksites his undergraduate degree with Phi 23. Id. § 13-10-91(b)(3). subject to the new Georgia law. Beta Kappa honors from Penn 24. GA. COMP. R. & REGS. § 300-10-1- The full impact of GSICA State University. He is a graduate .03(1) (2007). remains uncertain. Several states of the American University, 25. Id. § 300-10-1-.03(2). have similar laws, including Washington College of Law. 26. O.C.G.A. § 13-10-91(b)(1) (Supp. Colorado, where participation in 2006). the E-VERIFY program became The authors wish to acknowledge the 27. GA. COMP. R. & REGS. § 300-10-1-.09 mandatory at the beginning of this assistance of John DeGenova, a second- (2007). year; substantial data is not yet year law student at the University of 28. Id. § 300-10-1-.09(1). available. Arizona and Arkansas Georgia School of Law, in the preparation are the latest states to join the immi- of this article.
December 2007 17 A Look at the Law
U.S. Immigration Alternatives for International Businesspersons, Employees and Investors Who Wish to Enter the United States
by Robert E. Banta
his article provides general information establish that they are entitled to non-immigrant visas.3 It is generally faster for a person to obtain a non- about U.S. immigration alternatives for per- immigrant visa than an immigrant visa.
sons who wish to enter the United States for Entry Into the United States T A person seeking initial entry into the United States business, investment or employment, on a temporary generally must first obtain a visa from a U.S. con- sulate. Certain persons entering the United States as or permanent basis. tourists or business visitors can enter without visas under the Visa Waiver Program described on page 18. General Information About Moreover, Canadian citizens are exempt from this visa requirement.4 the U.S. Immigration Laws Obtaining a visa from a U.S. consulate does not Several branches of the U.S. federal government, guarantee a person’s admission into the United States. including the Departments of Homeland Security,1 When a person with a visa arrives at a U.S. port of State and Labor, administer U.S. immigration laws and entry, a DHS officer must decide that the person is policies. Normally, U.S. immigration laws are adminis- admissible before he or she will be allowed to enter the tered by the Department of Homeland Security (DHS), United States. These officers have the authority to acting through three separate divisions.2 exclude from the United States persons whom they U.S. immigration laws classify persons who want to deem ineligible for entry. (DHS officers at U.S. ports of come to the United States either as immigrants or non- entry also determine the admissibility of applicants for immigrants. A person who, at the time of entering the entry under the Visa Waiver Program and Canadians United States, intends to remain permanently in the applying for entry without visas.) United States, is classified as an immigrant, while a A DHS officer who admits a person with a non- person who, at the time of entering the United States, immigrant visa annotates the person’s Arrival- intends to remain in the United States only for a tem- Departure Record (Form 1-94) with the date of arrival porary period of time, is classified as a non-immigrant. and the date of required departure. Persons admitted Persons who want to come to the United States are gen- as non-immigrants must leave the United States by the erally presumed to be immigrants unless they can date of required departure noted on the I-94 card
18 Georgia Bar Journal unless they are able to extend the authorized stay, change to another non-immigrant status or obtain permanent resident status through the adjustment of status procedure described on page 17. Lawful Permanent Residence in the United States
General Information About Lawful Permanent Residence Except for “immediate rela- tives,” i.e., spouses, parents or unmarried children under 21 years of age, of U.S. citizens and certain other exemptions, persons who wish to become lawful permanent residents of the United States are subject to a quota system.5 A per- son who is a lawful permanent res- ident is referred to in this article as a “permanent resident.” A perma- nent resident is given a Permanent Resident Card, commonly known as a “green card,” to evidence his ed to that category, the persons for employers in the United States or her lawful permanent residence. whom green cards are not avail- must first complete the “labor cer- The U.S. immigration laws able are placed on a waiting list. tification” process, sponsored administer the annual quota for Those on the waiting list must wait through the U.S. Department of lawful permanent residents by until additional visa numbers are Labor (DOL) by their employers.12 making available each year several allocated to their preference cate- The DOL issues a labor certifica- hundred thousand green cards gory in subsequent years before tion after it has determined that a (exclusive of certain exempt cate- they can obtain visa numbers. qualified, available U.S. worker in gories). The number of green cards Family reunification is a priority the relevant location of the United available in a given year is calculat- of the U.S. immigration laws. As States is not available to perform ed according to a mathematical for- stated earlier, “immediate relatives” the particular job and that the mula.6 A maximum of 25,620 green of U.S. citizens are exempted from offered wages and working condi- cards can be allocated to natives of the annual quota. Persons who do tions will not adversely affect simi- any one independent country in a not qualify as “immediate rela- larly employed U.S. workers. given year,7 while a maximum of tives,” but who are close relatives of The spouse and unmarried chil- 7,320 green cards can be allocated U.S. citizens or permanent resi- dren under 21 years of age of a per- to natives of any dependent area in dents, may qualify under one of son who obtains a green card auto- a given year.8 four family-based quota categories.9 matically obtain green cards as Before persons subject to the In addition to the four family- well, based on their relationship to quota can apply for green cards, based quota categories, five quota the principal applicant. Spouses they must first qualify for one of categories10 are available to per- and children who obtain green the family-based or employment- sons coming to the United States cards on this “derivative” basis can based quota categories, and a green for employment, to investors who enjoy all rights available to any card must be available through the create employment through their permanent resident, including the applicable quota category. Green investments, and to persons who right to work. cards are granted through the qualify as “special immigrants.” At quota categories on a first-come, least 140,000 immigrant visa num- Overview of the first-served basis. If in any year the bers are allocated among these five Employment-Based number of persons who qualify for categories annually.11 Quota Categories a particular quota category exceeds Most persons seeking green The first employment-based cat- the number of green cards allocat- cards based on job offers from U.S. egory is available to “priority
December 2007 19 workers.”13 A labor certification is workers, professionals with bache- approval of such evidence, an not required for “priority work- lor’s degrees and unskilled work- investor is then granted permanent ers.” A person can qualify as a “pri- ers.16 A labor certification is a pre- residence. ority worker” through one of three requisite for eligibility for this cate- subcategories. To qualify for the gory. Skilled workers must be Obtaining a Labor first subcategory (persons with offered employment requiring at Certification “extraordinary ability” in arts, sci- least two years of education, train- Individual Labor Certifications ences, education, business or ath- ing or experience. Workers offered letics), the applicant must show employment requiring less than Employers sponsoring appli- sustained national or international two years of education, training or cants who fall into the second or acclaim. The second subcategory is experience are deemed “unskilled third employment-based quota cat- available to outstanding professors workers” and are placed in a spe- egories are generally required to and researchers who can establish cial subcategory in which the obtain a labor certification before international recognition or delays may be substantially longer filing a petition to have an appli- acclaim. The third subcategory is than the delays for other applicants cant classified in one of those cate- available to certain multinational in the third preference category. gories.19 Obtaining a labor certifi- executives and managers who have The fourth employment-based cation can be a cumbersome worked as executives or managers category is set aside for certain process. The applicant’s U.S. for at least one of the three years “special immigrants,” a category employer must sponsor an applica- preceding their admission to the that includes certain ministers and tion for a labor certification. The United States and who will work in religious workers, certain employ- prospective employer must docu- the United States as an executive or ees of the U. S. government abroad, ment that it has made the job in manager with the same employer family members of employees of question available to U.S. workers or an affiliate or subsidiary thereof. international organizations and by advertising the job opening in a The second employment-based retired employees of such organi- newspaper, by posting a notice of category is available to persons zations.17 A labor certification is the job’s availability at the worksite who are members of the profes- not required for applicants qualify- and by announcing the job’s avail- sions holding advanced degrees (or ing under this category. ability in the job bank for the state the equivalent) or persons with The fifth employment-based cat- in which the job is located. exceptional ability.14 Employers egory is available to investors who Professional and other higher level sponsoring employees for this sec- create employment for U.S. work- positions require additional ond preference category are gener- ers (otherwise referred to as recruitment efforts by the sponsor- ally required to obtain a labor certi- “employment-creation immi- ing employer. The prospective fication. “Exceptional ability” can grants”).18 Investors qualifying employer must interview qualified be in the sciences, the arts or in under this category are not applicants for the job in question. business and requires proof that required to obtain a labor certifica- In case of a DOL audit, the employ- the applicant will substantially tion. Eligibility for this category er must be prepared to document benefit the U.S. economy, culture, generally requires an investment of its reasons for rejecting applicants educational interests or welfare. at least $1,000,000 in a new busi- for the job, its job requirements and Professionals with bachelor’s ness that will create employment its recruitment efforts. degrees and at least five years of for at least ten U.S. workers. At The goal of the labor certification progressive experience in the pro- least 3,000 of the 10,000 immigrant process is to require an employer fession are deemed to hold the visas available under this category sponsoring a green card applicant equivalent of an advanced degree. are reserved for investors investing to make a good-faith effort to fill To sponsor an advanced degree in rural areas or areas of high the offered position with an avail- professional under this category, unemployment. The amount of able U.S. worker. an employer must show that the investment required for these areas “Precertified” Labor Certifications position requires an advanced is $500,000. An investor seeking degree (or the equivalent). permanent residence under this The DOL has promulgated a list Individuals who qualify for this category initially obtains a condi- of several “precertified” occupa- quota category can obtain an tional grant of residence, which is tions. These are occupations for exemption from the labor certifica- valid for two years. Prior to the which the DOL has determined tion requirement by showing the expiration of the two-year grant of that qualified, available U.S. work- DHS that their proposed services conditional residence, investors ers are in short supply. A green will benefit the “national interest” must submit evidence to the DHS, card applicant in a precertified of the United States.15 proving that they sustained the occupation qualifies automatically The third employment-based investment in question throughout for a labor certification. The list of category is available to skilled the two-year period. Upon DHS’s precertified applicants is limited to
20 Georgia Bar Journal physical therapists, professional ed annually to the first, second and Annual Diversity Visa Lottery nurses and certain persons of third employment-based cate- An annual lottery makes avail- exceptional ability in the sciences gories is approximately 40,000 for able 50,000 green cards to individ- and arts.20 each category. No more than 10,000 uals selected from among several green cards can go to unskilled million applicants.24 Only persons Qualifying for a Quota workers under the third category. born in certain designated coun- Category with the DHS The number of green cards allocat- tries are eligible for this lottery. Once an applicant’s prospective ed to the fourth and fifth employ- Furthermore, applicants must have employer in the United States has ment-based categories is approxi- completed the educational equiva- obtained a labor certification, the mately 10,000 for each category. lent of a U.S. high school degree or employer must then qualify the have at least two years of qualify- applicant for a quota category. The Application for a Green Card ing work experience to be eligible. employer must file a petition with Once an applicant’s prospective Those selected in the lottery are the DHS, which decides whether U.S. employer has obtained a labor exempt from the labor certification an applicant qualifies for a desired certification (if necessary), the appli- and employer sponsorship require- category. If employment sponsor- cant has qualified for a preference ments, which makes this lottery a ship is not required, which is the classification and a green card is relatively easy way to obtain a case under the fourth and fifth available, the applicant can then green card, assuming that one is employment-based categories, and apply for a green card. The appli- fortunate enough to be selected. for persons of extraordinary ability cant has two options in applying for under the first employment-based a green card: (1) applying at a U.S. Adjustment of category, the applicant may file a Consulate in the country of citizen- Status to Permanent petition on his or her own behalf. ship or last country of residence After qualifying for a quota cate- abroad;22 or (2) if the applicant is in Residence gory, an applicant must wait until the United States and can satisfy the Persons entering the United a green card is available through necessary requirements, applying States on one of the non-immigrant the quota category before complet- for a green card through the adjust- visas discussed below and who ing the green card application.21 ment of status procedure (discussed later decide to obtain a green card The number of green cards allocat- below).23 may apply to the DHS in the
December 2007 21 United States for adjustment of erally not authorized to work in The Visa Waiver Program for their non-immigrant status to per- the United States. Visitors from Certain manent residence. Adjustment of Countries29 status is a special procedure made Temporary Visitor Visas: B-1 Citizens of certain countries30 available to persons lawfully and B-2 (Visitor for Business coming to the United States for admitted into the United States and Visitor for Pleasure) temporary business or pleasure and who wish to become perma- To obtain a temporary visitor visits are eligible to enter under the nent residents. The advantage of visa from a U.S. Consulate or to Visa Waiver Program (the “VWP”). the adjustment procedure is that a enter the United States on a tempo- The VWP allows visitors to enter non-immigrant who is employed rary visitor visa or under the Visa the United States for business or in the United States may be able to Waiver Program, persons must pleasure visits of up to 90 days apply for and obtain a green card prove that they have a residence without first obtaining a B-1 visa. without having to leave the United abroad that they do not intend to To qualify for the VWP, a visitor States. A non-immigrant who does abandon. U.S. Consulates are must satisfy several requirements, not qualify for the adjustment pro- authorized to issue to citizens of including possessing a specific type cedure is required to apply at a some countries B-1 and B-2 visitor of round-trip transportation ticket, U.S. Consulate in the country of visas that are valid for up to ten possessing a passport valid for a citizenship or last country of resi- years and for an unlimited number specified minimum amount of time dence abroad. of entries. Although B-1 and B-2 and signing a form that waives cer- visas may be valid for up to ten tain procedural rights. The advan- Non-Immigrant years, DHS officers at U.S. ports of tage of the VWP is that it allows a Visas Available to entry usually restrict temporary visitor to avoid having to obtain a visitors to stays of six months or B-1 visa or a B-2 visa (or a combined Businesspersons, less. After entering the United B-1/B-2 visa, which may be issued Professionals and States, a visitor may be able to to citizens of some countries) for Investors obtain from the DHS one or more purposes of visiting the United extensions of authorized stay. States. Visiting the United States General Information About under the VWP, however, has dis- The B-1 Visa (Temporary Visitor Non-immigrant Visas advantages as well. For example, a for Business)27 U.S. Consulates issue non- visitor who enters under the VWP immigrant visas.25 As a general The B-1 “temporary visitor for is generally limited to a maximum rule, the law does not limit the business” visa is appropriate for stay of 90 days and cannot change number of non-immigrant visas persons coming temporarily to the to another non-immigrant status. that U.S. Consulates can issue to United States for “business.” Another significant disadvantage persons each year. Obtaining a Examples of appropriate B-1 of the VWP is that it requires visi- non-immigrant visa is generally a “business” activities include nego- tors to give up certain procedural faster procedure than obtaining a tiating contracts, consulting with rights, which can be important in green card, but a non-immigrant business associates, participating case a person encounters difficul- visa only permits its holder to in business conferences and inves- ties with the DHS. remain in the United States for a tigating the marketing possibili- temporary stay.26 Persons who ties for products, provided that Treaty Visas: E-1 and E-2 enter the United States on a non- the person does not receive com- (Treaty Trader and Treaty immigrant visa must leave the pensation from a U.S. source. A B- Investor); E-3 Specialty United States at the end of the 1 visa holder generally cannot per- Occupation Visas for authorized stay, unless they are form gainful employment in the Australians able to extend their stay, change to United States. For a person to obtain a treaty another non-immigrant status or visa, the United States must have a The B-2 Visa (Temporary Visitor obtain a green card. treaty authorizing the issuance of for Pleasure)28 The spouse and unmarried chil- such visas with the person’s coun- dren under 21 years of age of a The B-2 “temporary visitor for try of nationality. The United States person who obtains a non-immi- pleasure” visa is appropriate for a has entered into treaties allowing grant visa generally obtain “deriv- person coming temporarily to the the nationals of certain countries to ative” non-immigrant status from United States for vacation or obtain E-1 “treaty trader” visas and the principal applicant’s visa. pleasure travel. A B-2 visa holder E-2 “treaty investor” visas.31 The Except for spouses of E-1, E-2, E-3, cannot perform gainful employ- United States has entered into a J-1 and L-1 visa holders, described ment in the United States, even if treaty with Australia to allow below, a spouse having “deriva- paid by an employer outside the Australian citizens to enter the tive” non-immigrant status is gen- United States. United States on E-3 visas to per-
22 Georgia Bar Journal form services in a “specialty occu- employer has made, or is in the purpose of a labor condition appli- pation” (as that term is defined for process of making, a substantial cation is to confirm that an H-1B H-1B visa purposes). investment. The investor must employee will be offered a salary Applicants for an E-1 or E-2 make a commitment of funds to an and working conditions at least as treaty visa may be self-employed actual, active investment. favorable as those offered to simi- or may be employed by another The term “substantial invest- larly situated U.S. workers. Unlike person or organization. E-1 and E-2 ment” is not clearly defined. a labor certification application for treaty visas are very popular Whether an investment qualifies as permanent residence, a labor con- because they generally allow a per- “substantial” depends to a large dition application does not require son to remain in the United States degree on the type of business in an employer to prove the unavail- longer than any other type of non- which the investment is made. The ability of qualified U.S. workers for immigrant visa. The U.S. immigra- larger a person’s investment is, the job in question. After obtaining tion laws do not set a limit on the however, the better his or her a labor condition approval from number of years that an E-1 or E-2 chances of qualifying for an E-2 the DOL, employers then must file treaty visa holder can remain in the visa generally will be. a petition with the DHS. United States. Instead, an E-1 or E- Once the petition filed with the The E-3 Visa (Specialty 2 treaty visa holder may maintain DHS has been approved, the Occupation Visa for Australian such a visa as long as the holder prospective employee must gener- Citizens)34 can establish an intent to leave the ally obtain an H-1B visa from the United States when the E-1 or E-2 E-3 visas are issued only to appropriate U.S. Consulate. An H- activities cease. Some persons have Australian citizens and are usually 1B non-immigrant may be granted been able to remain in the United issued in two-year increments. An an initial stay in the United States States for more than 20 years on E- E-3 visa applicant must intend to of up to three years, which can be 1 or E-2 treaty visas. A person work in the United States in a “spe- extended for a total stay of six should not, however, rely on an E- cialty occupation.” The accompa- years. (Certain H-1B visa holders in 1 or E-2 treaty visa to remain per- nying spouse and unmarried chil- the process of applying for green manently in the United States. dren under age 21 of an E-3 visa cards and who have experienced holder need not be Australian citi- lengthy delays in the processing of The E-1 Visa (Treaty Trader)32 zens to receive derivative visas, their permanent residence applica- An E-1 “treaty trader” visa is for known as E-3D visas. Spouses tions, or for whom green cards are persons coming to the United holding E-3D visas are authorized States solely to carry on substantial to apply for work authorization in trade, principally between the the United States. United States and the foreign coun- try of which the person is a nation- The H-1B Non-immigrant al. For an applicant to qualify for Visa (Temporary Worker in a an E-1 visa, more than fifty percent Specialty Occupation)35 of the total volume of trade con- An H-1B non-immigrant visa is ducted by the person or the U.S. granted to employees in “specialty employer must be between the occupations.” A “specialty occupa- United States and the person’s tion” is one that normally requires country of nationality. “Trade” at least a U.S. bachelor’s degree (or means the exchange, purchase or its equivalent in experience or edu- sale of goods or services and cation) as an entry-level require- includes, among other things, ment. (H-1B visas are also granted import and export of goods, inter- to fashion models of “distinguished national banking, insurance, trans- merit and ability.”) Unlike most portation, tourism and communi- non-immigrant categories, the H- cation activities, data processing, 1B category has an annual cap of accounting, technology transfers, 85,000 visas; 20,000 of the 85,000 and design and engineering. annual H-1B visas are reserved for candidates who have obtained a The E-2 Visa (Treaty Investor)33 master’s degree or higher degree An E-2 “treaty investor” visa is from a U.S. educational institution. for persons coming to the United Employers seeking H-1B visas States solely to develop and direct for employees are first required to the operations of an enterprise in obtain approval of a labor condi- which the applicant or his or her tion application from the DOL. The
December 2007 23 not immediately available, may be the United States may not exceed Trade NAFTA or TN, exists for able to extend their H-1B stays two years. Canadians and Mexicans coming beyond the six-year limit.) to the United States to engage in The J-1 Non-immigrant Visa business activities at a professional The H-2B Non-immigrant (Business Trainee)38 level. Only Canadians and Visa (Other Temporary The J-1 exchange visitor visa Mexicans who will work in one of a Worker Who Will Not may be used by persons coming specified list of occupations can Displace U.S. Workers)36 temporarily to the United States to qualify for TN classification. In An H-2B non-immigrant visa is receive training through an author- general, applicants for TN classifi- granted to a person who is coming ized J program sponsor. Obtaining cation must have at least a univer- temporarily to the United States to a J-1 visa for a trainee is often a less sity degree. TN classification may perform temporary, non-agricul- complicated procedure than be obtained in increments of one tural services or labor. The H-2B obtaining an H-3 visa. A J-1 busi- year, and there is no limit on the visa is the only non-immigrant visa ness trainee is limited to a maxi- number of years that a qualifying that requires both that the person mum stay in the United States of candidate can hold this classifica- be coming temporarily to the eighteen months. tion. A TN non-immigrant’s United States and that the employ- Citizens of certain countries spouse and unmarried children er’s need for the person’s services who obtain J-1 visas for training under age 21 may qualify as in the United States be temporary. purposes may be subject to a two- dependents under TD classification Before a person can obtain an H-2B year foreign residence require- and may receive extensions of their visa from a U.S. Consulate, a U.S. ment; that is, the trainee may be stay as long as the TN non-immi- employer must obtain a labor certi- required to return to the home grant is maintaining status. fication from the Department of country for two years before Labor as well as obtain approval of applying for a green card or cer- The O Non-immigrant Visa a petition from the DHS. Because a tain types of temporary visas. For (Person of Extraordinary labor certification is required for H- this reason, a person considering a Ability)41 2B visa applicants, and because of J-1 visa should first determine O non-immigrant visas are an annual quota of 66,000 for H-2B whether this foreign residence available to individuals with visas, H-2B visas are cumbersome requirement would apply. extraordinary ability in the sci- to obtain. An H-2B non-immigrant ences, arts, education, business or is generally granted an initial stay The L-1 Non-immigrant Visa athletics. Extraordinary ability for in the United States of one year. An (Intracompany Transferee)39 artists and entertainers (the arts) H-2B non-immigrant may not, L-1 “intracompany transferee” requires distinction supported by however, be granted extensions visas are for persons who have been extensive documentation. Extra- that would permit him or her to continuously employed abroad for ordinary ability for the other fields remain in the United States for a one of the three years immediately requires proof of sustained nation- total stay of more than three years. preceding their entry into the United al or international acclaim. O-2 States by a company in an executive visas are available to individuals The H-3 Non-immigrant Visa or managerial capacity, or in a entering for the sole purpose of (Temporary Trainee)37 capacity that involves specialized assisting in the artistic or athletic H-3 non-immigrant visas are for knowledge, and who seek to enter performance of an O-1 non-immi- persons coming temporarily to the the United States to work in a simi- grant. O visas are valid for an ini- United States to receive training. lar position for the same employer, a tial stay of up to three years and Before a person can obtain an H-3 subsidiary or an affiliated company. may be extended thereafter in one- visa from a U.S. Consulate, the For L-1 visa eligibility, a U.S. year increments. individual or organization that will employer must first obtain DHS’s provide the training in question approval of a petition. L-1 managers The P Non-immigrant Visa must obtain approval of a petition and executives can remain in the (Artists and Entertainers)42 from the DHS. An H-3 trainee can- United States up to seven years; L-1 The P non-immigrant visa cate- not perform productive employ- specialized knowledge employees gory is available to artists, athletes ment that would displace a U.S. are limited to stays of five years. and entertainers. It includes ath- worker. The training offered to an letes and entertainers recognized at H-3 trainee must be unavailable in The TN Non-immigrant an international level; artists and the trainee’s home country, and it Classification (Business entertainers entering under a recip- must be contemplated that the Professional for Canadians rocal exchange program; and trainee will use the benefits of the and Mexicans)40 artists and entertainers entering to training outside of the United The NAFTA-created non-immi- perform under a program that is States. An H-3 trainee’s total stay in grant classification, known as culturally unique.
24 Georgia Bar Journal The Q Non-immigrant Visa He is listed in The Best Lawyers in tion for them and who are eligible (Cultural Exchange America, The International Who’s for the adjustment of status proce- 43 Who of Business Lawyers, Atlanta dure may file their adjustment of Participant) status applications concurrently The Q non-immigrant visa classi- magazine’s list of “The Best Lawyers in Atlanta,” and Georgia with the employer’s petition. Such fication permits individuals to come concurrent filing generally reduces Super Lawyers for his immigra- to the United States for up to fifteen processing delays. months to participate in designated tion expertise. 22. 8 U.S.C. § 1202(a). international cultural exchange pro- 23. See 8 C.F.R. pt. 245 (2007). grams. Such programs must be for Endnotes 24. 8 U.S.C. § 1153(c). the purpose of providing practical 1. Effective March 1, 2003, the 25. Id. § 1201(a)(1). training, employment and sharing enforcement and services functions 26. Id. § 1201(c). of culture. To obtain this visa, a for- previously exercised by the 27. Id. § 1101(a)(15)(B). 28. Id. eign national must receive the same Immigration and Naturalization 29. Id. § 1187. wages and the same work condi- Service were transferred to the Department of Homeland Security. 30. Citizens of the following countries tions as U.S. workers. 2. Customs and Border Protection are eligible for the visa waiver pro- polices the U.S. borders and inspects gram: Andorra; Australia; Austria; Penalties for individuals applying for entry into Belgium; Brunei; Denmark; Employers of this country. Immigration and Finland; France; Germany; Iceland; Customs Enforcement is responsible Ireland; Italy; Japan; Liechtenstein; Unauthorized Workers for enforcing the federal immigra- Luxembourg; Monaco; Since 1987, the federal immigra- tion laws, including deporting indi- Netherlands; New Zealand; tion law has imposed penalties on viduals deemed “removable” under Norway; Portugal; San Marino; employers in the United States that the law and imposing sanctions on Singapore; Slovenia; Spain; Sweden; Switzerland; United knowingly hire, or continue to employers that violate the law by Kingdom. employ, individuals who are not knowingly hiring undocumented workers. Citizenship and 31. A table of the countries whose citi- authorized to accept employment.44 Immigration Services processes zens are eligible for E-1 or E-2 In recent years, a number of states, applications for immigration bene- visas is located online at http:// 45 including Georgia, have enacted fits, including applications and peti- www.travel.state.gov/visa/frvi/re state laws sanctioning employers of tions for temporary visas and per- ciprocity/reciprocity_3726.html#. undocumented workers. Employers manent residence. 32. 8 U.S.C. § 1101(a)(15)(E)(i). must be certain that they comply 3. 8 U.S.C. § 1184(b). 33. Id. § 1101(a)(15)(E)(ii). with all federal, state and local laws 4. 8 C.F.R. § 212.1(a) (2007). 34. Id. § 1101(a)(15)(E)(iii). regarding the verification and docu- 5. 8 U.S.C. § 1151. 35. Id. § 1101(a)(15)(H)(i)(b)(1). mentation of their employees. 6. Id. 36. Id. § 1101(a)(15)(H)(ii)(b)(1). 7. Id. § 1152(a)(2). 37. Id. § 1101(a)(15)(H)(iii). U.S. Tax Planning 8. Id. 38. Id. § 1101(a)(15)(J). 9. Id. § 1153(a). The first category is 39. Id. § 1101(a)(15)(L). Considerations available to unmarried children 21 40. Id. § 1184(e). years of age or older of U.S. citi- 41. Id. § 1101(a)(15)(O). Because of pitfalls such as possi- zens. The second category is avail- 42. Id. § 1101(a)(15)(P). ble increased or double taxation, able to spouses and unmarried 43. Id. § 1101(a)(15)(Q). immigration planning for a person children of permanent residents. 44. Id. § 1324A. should be coupled with planning The third category is for married 45. Georgia Security and Immigration under the tax laws of both the children of U.S. citizens, and the Compliance Act of 2006, 2006 Ga. United States and the person’s fourth category is for brothers and Laws 105. home country. sisters of U.S. citizens 21 years of age or older. Earn up to 6 CLE credits for Robert E. Banta is the 10. Id. § 1153(b). 11. Id. § 1151(d). authoring legal articles and managing partner of 12. Id. § 1182(a)(5)(A)(i); 20 C.F.R. pt. having them published. Banta Immigration 656 (2007). Submit articles to: Law Limited, Atlanta’s 13. 8 U.S.C. § 1153(b)(1). largest law firm exclu- 14. Id. § 1153(b)(2). Donald P. Boyle Jr. sively practicing busi- 15. Id. § 1153(b)(2)(B)(i). Georgia Bar Journal ness immigration law. He received 16. Id. § 1153(b)(3). 104 Marietta St. NW, Suite 100 his B.A. degree from Davidson 17. Id. § 1153(b)(4). Atlanta, GA 30303 18. Id. § 1153(b)(5). College, his M.A. degree in Contact [email protected] for Romance Languages (French) 19. Id. § 1182(n). 20. 20 C.F.R. § 656.15(d) (2007). more information or visit the Bar’s from Duke University and his J.D. website, www.gabar.org. degree from Vanderbilt University. 21. Individuals for whom green cards are available when employers peti-
December 2007 25 A Look at the Law
No Second Chances: Immigration Consequences of Criminal Charges by Christina Hendrix and Olivia Orza
any practitioners do not realize how harsh and drastic the immigra- tion consequences of criminal convictions are, nor how limited the M relief is from those consequences. Immigration consequences of crim- inal charges “may seem unbelievable to lawyers and judges accustomed to dealing with U.S. citizens, who have greater protection under the U.S. Constitution.”1
Criminal defense attorneys should always ascertain counsel and may even lead to a malpractice claim.3 the immigration status of their clients at the beginning Although there is no constitutional requirement that of a case. This is important because every client who is the defendant be advised of all possible consequences not a U.S. citizen may be subject to removal/deporta- of a guilty plea, the Georgia courts do distinguish tion if he or she is convicted of a criminal offense. between a failure to inform the client of the possible Criminal defense attorneys must know the immigra- immigration consequences and affirmative misrepre- tion status of their clients to determine: (1) the strategy sentations. It is essential that an attorney carefully in handling the case; (2) whether they have an ethical investigate the impact of the plea on the non-citizen duty to inform the client of the immigration conse- defendant and perhaps seek the advice of an immigra- quences of a criminal conviction; and/or (3) the poten- tion attorney with in-depth knowledge of deportation tial legal liability for failure to inform the client of those issues.4 It is also important that clients with existing consequences. criminal records be advised to consult with an experi- In 2004, the Georgia legislature recognized the enced immigration attorney before applying for any importance of informing defendants of the conse- immigration benefit. quences of guilty pleas and amended the Georgia Code, instructing courts to “determine whether the What Consequences Can Criminal defendant is freely entering the plea with an under- Convictions Have? standing that if he or she is not a citizen of the United States, then the plea may have an impact on his or her Once a guilty plea has been entered, a non-citizen immigration status.”2 Failure to assess the defendant’s defendant faces significant consequences due to his knowledge of the possible immigration consequences immigration status. Under the Immigration and of a guilty plea may open the door for the defendant to Nationality Act (INA),5 a non-citizen could be deport- set aside the plea at a later date through a habeas cor- ed after being convicted of crimes involving “moral pus petition on the ground that the plea was not turpitude,” e.g., drug or firearm violations, aggravat- entered freely and voluntarily. ed felonies, crimes of domestic violence, stalking, vio- Georgia precedent establishes that the affirmative lating a protective order, high-speed flight from an misrepresentation by counsel of immigration conse- immigration checkpoint, and a few other miscella- quences can support a claim of ineffective assistance of neous crimes.6
December 2007 27 Deportability the United States is subject to the order to give the defendant time to The grounds of deportation grounds of inadmissibility, as is complete a series of requirements. include criminal and non-criminal someone entering the country for Those requirements generally reasons.7 The criminal grounds of the first time.16 Therefore, it is include probation, community deportation apply to a person who important that a non-citizen defen- service and a fine. Adjudication is has been admitted to the United dant be informed of this possible deferred until the defendant finish- States and is physically present in consequence of a criminal convic- es the requirements ordered by the the United States. A person charged tion before being allowed to enter a court. If the defendant completes with deportability is placed in guilty plea. the requirements, the charges are removal proceedings before an dismissed. Should the defendant immigration judge or even placed fail to complete the requirements, in expedited removal proceedings.8 When a Criminal the defendant will be adjudicated Expedited removal applies to cer- Charge is a Conviction “guilty,” and the state will enforce tain individuals who have been the sentence. The only instance convicted of aggravated felonies for Immigration when a deferred adjudication is not and are not eligible for an immigra- Purposes considered a conviction is when tion hearing in front of a judge.9 In most instances, only those the sentencing court merely orders Once an alien convicted of an criminal charges that result in con- the defendant to pay court costs.20 aggravated felony has been physi- victions trigger immigration conse- An adjudication is considered a cally removed, he or she becomes quences. The INA broadly defines conviction for immigration purpos- permanently inadmissible.10 convictions for immigration pur- es if it meets a three-prong test: (1) An alien is also deportable if he poses. The INA defines a convic- there has been a judicial finding of or she is convicted of two or more tion as: guilt; (2) the court takes action that crimes involving moral turpitude removes the case from those which (not arising out of a single scheme [A] formal judgment of guilt of are pending for consideration by of criminal misconduct) at any time the alien entered by a court or, if the court, orders the defendant after admission to the United adjudication of guilt has been fined or incarcerated, or suspends States.11 The phrase, “single withheld, where— the imposition of the sentence; and scheme of criminal misconduct,” a judge or jury has found the (3) the action of the court is consid- usually means that the crimes are alien guilty or the alien has ered a conviction by the state for at performed in furtherance of a “sin- entered a plea of guilty or nolo least some purpose.21 Therefore, if gle criminal episode” or that the contendre or has admitted suffi- the court merely orders the defen- two crimes flow from and are the cient facts to warrant a finding of dant to pay court costs, the convic- natural consequences of a single act guilt and, tion is not a conviction for immi- of criminal misconduct.12 The the judge has ordered some gration purposes.22 Georgia’s First grounds of deportability do not form of punishment, penalty, or Offender Statute is a deferred adju- apply to persons adjusting status, restraint on the alien’s liberty to dication program.23 Thus, the INA whereas the grounds for inadmissi- be imposed.17 considers a “guilty” plea entered bility do.13 under the First Offender Program In determining whether the to be a conviction. Inadmissibility judge sentenced the immigrant to a Criminal charges that are In addition to possible deporta- specific term of imprisonment, the resolved through pre-trial diver- tion, a non-citizen who has been INA considers the entire time sion programs, however, are not convicted of a crime can be subject ordered in confinement and does considered convictions.24 In pre- to inadmissibility into the United not subtract any probated or sus- trial diversion programs, criminal States. Section 212(a)(2) of the INA pended time or consider whether charges are not formally instituted covers the criminal grounds of the immigrant actually spent any until and unless the defendant fails inadmissibility.14 The concept of time incarcerated.18 The INA to complete the recommended pro- inadmissibility generally refers to defines even those convictions grams. These programs typically non-citizens who are not in the entered under state rehabilitative include classes and some sort of United States but seek to come in, programs, such as deferred adjudi- probation. In contrast to a diver- but it may also refer to persons cations, as “convictions” for immi- sion program, where the defendant who are already physically within gration purposes.19 Adjudication is admits sufficient facts to find him the United States but seek to deferred when a judge allows a or her guilty, pre-trial intervention improve their status, by, for exam- criminal defendant to enter a plea programs allow the defendant to ple, adjusting to permanent resi- of nolo contendere or guilty. The avoid any formal declaration of dent status.15 In addition, a non-cit- immigrant is sentenced at that time guilt. Thus, by completing a pre- izen returning from a trip outside but the sentence is not enforced, in trial diversion program, the defen-
28 Georgia Bar Journal dant is not making an admission of guilt, the first prong of the test will not be met, and the completion of the pre- trial diversion program will not be considered a “con- viction” for immigration purposes. A crime committed by a juvenile that is adjudicated in juvenile court is not a “conviction” for immigration purposes.25 If, however, a juvenile commits a crime that, if committed by an adult, would be considered a felony with a possible 10-year sentence of incarceration, life in prison or the death penalty, then the conviction is also considered a “conviction” for immigration purposes.26 Criminal Charges That Have Immigration Consequences Crimes of Moral Turpitude The INA provides that an alien is deportable if he “(1) is convicted of a crime involving moral turpitude com- mitted within five years (or 10 years in the case of an alien provided lawful permanent status under [8 U.S.C. § 1255(j)]) after the date of admission, and (2) is convict- ed of a crime for which a sentence of one year or longer may be imposed.”27 Although the INA does not define the term “moral turpitude,” courts interpret it to involve “an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and cus- tomary rule of right and duty between man and man.”28 The Board of Immigration Appeals held that moral turpi- tude refers to acts that are inherently vile, base, or depraved and go against accepted rules of morality.29 Whether a crime contains the requisite depravity or fraud necessary to be one of moral turpitude depends on the inherent nature of the offense, as defined in the rele- vant statute, rather than the circumstances surrounding a defendant’s particular conduct.30 When analyzing each statute, it is important to look at the elements necessary to obtain a conviction and determine whether those ele- ments render the offense a crime of moral turpitude.31 It is also important to look at whether the offense includes the elements of specific intent or knowledge. A crime of moral turpitude will usually include specific intent to do harm or knowledge of the act’s illegality.32 Crimes of moral turpitude include both felonies and misdemeanors. The seriousness of the criminal offense and the severity of the sentence imposed are not factors that determine whether the crime involves moral turpi- tude.33 Generally, for a crime to be considered to involve moral turpitude, it must involve dishonesty or false statement.34 Theft & Burglary Offenses Offenses involving theft are considered crimes of moral turpitude only when a permanent taking is intended. Therefore, when the offense involves a taking with the intent to permanently deprive the owner of the property, that offense is a crime of moral turpitude. Attention should be paid to the language of the theft
December 2007 29 statute at hand. Theft statutes may agents; (xvii) fraud or deceit where or requires a specific intent to encompass both temporary takings the loss to victim exceeds $10,000; cause harm.45 That is, for a crime and permanent takings. In situa- (xviii) tax fraud where the amount to be considered an aggravated tions when something less than the of tax fraud exceeds $10,000; (xix) felony, the predicate felony must intent to permanently deprive is alien smuggling (unless it is a first require intentional, not accidental, involved, the court may or may not offense and the alien did it to assist behavior.46 For example, Georgia’s find that moral turpitude exists.35 the alien’s child, spouse, or parent DUI statute47 does not require a Robbery, knowingly receiving and no other individual); (xx) specific mens rea of recklessness stolen property, or possession of counterfeiting or forging a pass- nor a specific intent to cause harm property with the belief that it was port where the term of imprison- and is therefore not considered a stolen, all involve moral turpi- ment is at least 12 months; (xxi) crime of violence for immigration tude.36 Theft by deception has also failure to appear by a defendant purposes. been found to be a crime involving for service of a sentence if the Firearm Offenses moral turpitude.37 Shoplifting is underlying offense is punishable considered a crime involving moral by a two-year or more prison sen- State firearm offenses that have a turpitude regardless of whether the tence; (xxii) bribery, counterfeiting federal criminal law code counter- offense is a misdemeanor or a or trafficking in vehicles the identi- part are aggravated felonies.48 felony.38 fication numbers of which have Even Georgia’s misdemeanor been altered when the term of firearm statute, “Possession of a Fraud imprisonment is at least a year; Concealed Weapon,”49 is an aggra- Fraud generally involves moral and (xxiii) an attempt of conspira- vated felony for immigration pur- turpitude, especially where a spe- cy to commit any of the above.41 poses.50 cific intent to defraud is an element Although aggravated felonies In Adefemi v. Ashcroft, Albert of the fraud charge.39 Criminal are defined in terms of federal Adefemi, a Nigerian national and a charges involving fraud should be crimes, state crimes may also be U.S. legal permanent resident, was negotiated to or substituted with considered aggravated felonies for pulled over by a City of Atlanta another offense that does not immigration purposes. A violation police officer for running a red involve specific intent to defraud. of state law is an aggravated felony light. The officer asked Adefemi if it meets the same statutory bur- whether he had a gun in the car, Aggravated Felonies den of proof required by the feder- and Adefemi replied that he did. An aggravated felony convic- al crimes listed above and if “the The officer cited Adefemi for run- tion results in the most serious of term of imprisonment was com- ning a red light and for possessing immigration consequences, which pleted within the last 15 years.”42 a concealed weapon.51 Without include deportation and a ban This article limits its discussion being represented by counsel, from ever entering the United of aggravated felonies to those that Adefemi pled guilty to the charges States.40 The following federal are most frequently committed, and paid a $330 fine.52 Because crimes are considered aggravated those whose requirements are like- Adefemi pled guilty to carrying a felonies: (i) murder; (ii) rape; (iii) ly to cause confusion, and those concealed weapon, the Department sexual abuse of a minor; (iv) drug that are less likely to be thought of of Homeland Security removed trafficking; (v) trafficking in as aggravated felonies. Adefemi to Nigeria. Adefemi is firearms or destructive devices; now forever banned from entering Crimes of Violence (vi) money laundering; (vii) engag- the United States.53 ing in unlawful monetary transac- Crimes of violence, punishable Controlled Substance Violations tions in property derived from by a year or more in prison, are unlawful activity if the funds considered aggravated felonies.43 Convictions for simple posses- exceed $10,000; (viii) firearm Crimes of violence are defined as sion of a controlled substance (with offenses; (ix) crimes of violence or (1) those crimes that require the the exception of simple possession theft offenses where the term of use of violence, attempted use of of marijuana) are considered imprisonment is at least one year; violence, or threatened use of vio- felonies in Georgia but are not (x) demands for ransom; (xi) RICO lence against the person or proper- always considered aggravated violations; (xii) involvement with ty of another; or (2) any felony that felonies under federal immigration child pornography; (xiii) run- “by its nature, involves a substan- law.54 Georgia’s controlled sub- ning/ownership of a prostitution tial risk of physical force against” a stance offenses that have a federal business; (xiv) transporting prosti- person or against the property of counterpart in the Controlled tutes across state lines; (xv) sabo- another.44 A crime of violence is an Substances Act (CSA)55 are consid- tage or disclosing confidential aggravated felony only if the ered aggravated felonies.56 A crime information; (xvi) revealing the required mens rea of the underly- is a “felony” under federal law if identity of foreign undercover ing felony is at least recklessness, the conviction is punishable by
30 Georgia Bar Journal more than one year in prison.57 The Minimizing the sure that the sentence sheet only CSA defines all convictions for Consequences of a uses the term “confinement” in ref- possession of a controlled sub- erence to the actual time to be served stance as felonies, with one excep- Criminal Conviction in confinement, if at all. tion. First-time convictions for pos- By negotiating specific pleas, it is In some instances, whether a sessing a controlled substance possible at least to lessen the immi- crime is considered an aggravated (other than simple possession of gration consequences of criminal felony depends on the amount of “crack” or fluntitrazepam) are con- charges. Sentence sheets from con- loss to the victim. For example, in sidered misdemeanors.58 Under victions, if worded correctly, often order for the crime of fraud to be the CSA, the first conviction for can ensure that the criminal convic- considered an aggravated felony, possessing a controlled substance tion will not result in negative immi- the loss to the victim must exceed (other than “crack” or flunti- gration consequences. Practitioners $10,000. A way to minimize the trazepam) is punishable by “not should be sure, however, that the immigration consequences in such more than one year in prison.”59 final sentence is one allowed by a case is to negotiate a plea where- Therefore, a state conviction for a law.67 By far, the best way to avoid by the client pleads guilty to a loss first-time possession of a con- immigration consequences of crimi- of less than $10,000. trolled substance (other than nal charges is to negotiate a pre-trial “crack” or fluntitrazepam) is not diversion program and dispose of When Immigration considered an aggravated felony. the charges. As discussed previous- Advice Comes Too Late; The CSA defines all other convic- ly, charges resolved through pre- tions for controlled substances as trial diversion programs are not con- Post-Conviction Relief felonies. Thus, all state convictions sidered criminal convictions for from Immigration are considered aggravated felonies immigration purposes. Also, protect Consequences for immigration purposes, with the your client’s immigration status by exception of most first-time offens- limiting, as much as possible, any In most instances, little may be es. A first-time offense for posses- multiple counts. Because being con- done to lessen the immigration sion of “crack” or fluntitrazepam, victed of two or more crimes of consequences of a conviction. however, is considered an aggra- moral turpitude renders a defendant Convictions discharged under vated felony.60 deportable, counsel should negoti- Georgia’s First Offender Act, Convictions for drug trafficking ate a plea agreement whereby the where the intent is to render the are aggravated felonies.61 Violations client only pleads to one crime. defendant without a criminal of Georgia drug laws that involve Convictions for crimes of violence, record, are still considered “convic- any element of trafficking are drug theft offenses, forging documents, tions” for immigration purposes, trafficking crimes and are therefore and obstruction of justice, will not be and will not help the defendant considered aggravated felonies.62 considered aggravated felonies if avoid immigration conse- the defendant is sentenced to less quences.70 Any post-conviction Domestic Violence/Stalking/ than a year of confinement.68 In relief that is given in an effort to Violating a Protective Order these types of cases, creatively prevent immigration consequences Crimes of domestic violence are wording the sentence sheet to read will be ineffective, and the convic- considered aggravated felonies for the time to serve as anything less tion will stand for immigration immigration purposes.63 Certain than a year precludes an aggravated purposes.71 federal crimes and Georgia misde- felony definition.69 In these Any post-conviction relief grant- meanors that involve crimes com- instances counsel needs to make ed on the merits, however, and not mitted by a spouse, partner, former spouse or former partner against the other or against a child are consid- Executive Collection Services, LLC 64 ered aggravated felonies. Stalking, Providing Credit and Collection Services for three generations child abuse, child neglect and child abandonment are crimes of domes- Collections, Credit Services, Asset Searches, Research tic violence and are deportable Skip Trace, FIFA Monitoring and Process Service offenses.65 In addition, the violation of a protective order issued by a The Best in the State of Georgia judge for “protection against credi- Contact Porter D. Deal for free consultation ble threats of violence, repeated Toll Free 1-888-422-6508 Atlanta 404-422-6586 harassment, or bodily injury” is a deportable offense.66 These crimes Fax 770-381-2412 or [email protected] are deportable offenses without Ecsga.com regard to the sentence imposed.
December 2007 31 for the purpose of avoiding immi- withholding must be granted.77 of suspension of deportation, can- gration consequences, will not be Even though an individual who cellation of removal, or a waiver considered a conviction for immi- has been convicted of a “particular- under §212(c).81 gration purposes and will thus save ly serious crime” cannot receive the client from immigration prob- withholding, the “particularly seri- Conclusion lems later on. When appealing a ous crime” prohibition is different The immigration consequences of conviction, counsel should ensure in this case, and an aggravated conviction of a crime are harsh, def- that the reason given by the court felony offense is not a per se bar to inite and guaranteed. Defendants for vacating or overturning the con- withholding.78 convicted of certain crimes face pos- viction is based on either the uncon- If both asylum and withholding sible removal and, in some cases, stitutionality of the conviction, inef- of removal are denied, an individ- complete banishment from the fective assistance of counsel, or ual with a serious criminal convic- United States. Upon removal, these another merit-based ground.72 tion who fears harm upon return to defendants are separated from their his or her country may still remain families and may face persecution Relief from Removal in the United States by seeking upon return to their countries. Non- There are various possible forms deferral or withholding of removal citizen defendants facing criminal of relief available to persons con- under the CAT. CAT (1) provides charges in the United States are victed of criminal activity, such as protection to persons who face tor- guaranteed certain constitutional asylum and withholding of ture by their government or by a rights, such as the right to enter a removal, cancellation of removal, government actor in the proposed knowing and voluntary guilty plea withholding and deferral under the country of removal; (2) requires and the right to effective assistance Convention Against Torture that the applicant establish that he of counsel. To a non-citizen, a (CAT),73 adjustment of status, INA or she would be tortured if knowing and voluntary plea should §212(h) waivers, voluntary depar- returned to the country of removal; encompass the knowledge that, by ture, and others. Only asylum, and (3) is mandatory, regardless of entering a guilty plea, he or she may withholding of removal, withhold- the person’s criminal record.79 be accepting life-altering immigra- ing and deferral under the CAT tion consequences. Attorneys have and cancellation of removal are Cancellation of Removal an ethical duty to inform their non- discussed below. Cancellation of removal is a citizen clients of these consequences waiver for lawful permanent resi- prior to allowing them to plead Asylum/Withholding dents facing removal proceedings guilty. The failure to advise a client of Removal for a criminal conviction or convic- of such severe results is neither eth- An individual who has been con- tions. It is only available to individ- ical nor effective assistance. victed of a crime and fears returning uals lawfully admitted for perma- to a country because of persecution nent residence. It states that Christina Hendrix, the on account of race, religion, nation- removal may be canceled in the case principal at The ality, membership in a particular of an alien who is inadmissible to or Hendrix Law Firm, P.C., social group, or political opinion, deportable from the United States, is a former prosecutor may seek asylum, thereby defeating as long as the alien (1) has been law- who now practices removal if he or she is in removal fully admitted for permanent resi- immigration and crim- proceedings.74 However, the INA dence for not less than five years; (2) inal defense law. She is a 2003 states that if an individual has been has resided in the United States con- graduate of Rutgers Law School convicted of a “particularly serious tinuously for seven years after hav- where she served on the Rutgers crime” and “constitutes a danger to ing been admitted in any status; and Conflict Resolution Law Journal the community of the United (3) has not been convicted of any editorial board. States” as a result of that crime, that aggravated felony.80 Certain indi- individual is barred from claiming viduals, however, are not eligible Olivia Orza is In- asylum.75 An aggravated felony for cancellation of removal, even if House Counsel at JA offense is considered to be a partic- they meet the above-mentioned Immigration, Inc., ularly serious offense under the requirements. These include: (1) handling business INA. For a non-aggravated felony individuals who are inadmissible or immigration matters. offense, case precedent will deter- deportable on security grounds, Prior to joining JA mine whether relief is barred.76 including export violations; (2) indi- Immigration, Orza focused her Withholding of removal is an viduals who have ordered, incited, practice on family and business option in cases where asylum is or assisted in the persecution of oth- immigration law as well as crimi- denied. Withholding of removal is ers; and (3) individuals who have nal defense. She is a member of not discretionary. As long as an previously received relief from American Immigration Lawyers individual establishes persecution, deportation or removal in the form Association and a former
32 Georgia Bar Journal Assistant District Attorney for 23. O.C.G.A. § 42-8-60 (2007); see Ali v. 51. Id. at 1025 n.6. Orleans Parish, Louisiana. Orza Attorney General, 443 F.3d 804, 52. Id. 809-10 (11th Cir. 2006). 53. 8 U.S.C. § 1227(a)(2)(C). earned a B.S. degree from the 24. Matter of Grullon, 20 I. & N. Dec. 54. Lopez v. Gonzales, 127 S. Ct. 625, University of Georgia and a J.D. 12 (B.I.A. 1989). 633 (2006). from Tulane University School of 25. Matter of De La Nues, 18 I. & N. 55. 21 U.S.C. §§ 801-904. Law. She can be reached at 770- Dec. 140 (B.I.A. 1981). 56. See Lopez, 127 S. Ct. at 630 n.6. 416-1883 or [email protected]. 26. Id. 57. Id. at 634. 27. 8 U.S.C. § 1227(a)(2)(A)(i). 58. 21 U.S.C. § 844. Endnotes 28. Itani v. Ashcroft, 298 F.3d 1213, 59. Id. 1. Maria Baldini Potermin & Mary M. 1215 (11th Cir. 2002). 60. Id. O’Leary, Five Things Every Lawyer 29. Matter of L-V-C, 22 I. & N. Dec. 61. 8 U.S.C. § 1101(a)(43)(B). Should Know About Immigration 594 (B.I.A. 1999). 62. KRAMER, supra note 8, at 147; see Law, 17 CHICAGO B. ASS’N REC., 30. Itani, 298 F.3d at 1213; see De Leon- United States v. Madera-Madera, Nov. 2003, at 42. Reynoso v. Ashcroft, 293 F.3d 633, 333 F.3d 1228, 1230 (11th Cir. 2. O.C.G.A. § 17-7-93(c) (2004). 635 (3d Cir. 2002); Rodriguez- 2003). 3. Rollins v. State, 277 Ga. 488, 492, Herrera v. INS, 52 F.3d 238, 239-40 63. 8 U.S.C. § 1227(a)(2)(E). 591 S.E.2d 796, 799-800 (2004). (9th Cir. 1995). 64. Id. 4. Grace A. Sease & Socheat Chea, 31. Matter of Short, 20 I. & N. Dec. 136 65. Id. The Consequences of Pleas in (B.I.A. 1989). 66. Id. § 1227(a)(2)(E)(ii). Immigration Law, 6 GA. B.J., Oct. 32. Matter of Franklin, 20 I. & N. Dec. 67. See State v. Lin, 268 Ga. App. 702, 2000, at 24. 867 (B.I.A. 1994). 703-04, 603 S.E.2d 315, 316 (2004). 5. 8 U.S.C. §§ 1101-1537. 33. Matter of Serna, 20 I. & N. Dec. 68. Matter of Song, 23 I. & N. Dec. 173 6. Id. § 1227(a)(2)(A)(i). 579, 581 (B.I.A. 1992). (B.I.A. 2001). 7. See id. § 1227. 34. United States v. Gloria, 494 F.2d 69. KRAMER, supra note 8, at 288. 8. MARY E. KRAMER, IMMIGRATION 477, 481 (5th Cir. 1974). 70. Resendiz-Alcaraz v. Ashcroft, 383 CONSEQUENCES OF CRIMINAL 35. KRAMER, supra note 8, at 139. F.3d 1262, 1272 (11th Cir. 2004); ACTIVITY 77 (2d ed. 2005). 36. Matter of Gordon, 20 I. & N. Dec. Matter of Roldan, 22 I. & N. Dec. 9. 8 U.S.C. § 1228. 52 (B.I.A. 1989). 512 (B.I.A. 1999). 10. Id. § 1182(a)(9)(A). 37. Nugent v. Ashcroft, 367 F.3d 162 71. Ali v. U.S. Attorney General, 443 11. IRA. J. KURZBAN, IMMIGRATION LAW (3d Cir. 2004). F.3d 804, 809-10 (11th Cir. 2006). SOURCEBOOK 133 (10th ed. 2006). 38. Smriko v. Ashcroft, 387 F.3d 279 72. See id; Rollins v. State, 277 Ga. 488, 12. Matter of Adetiba, 20 I. & N. Dec. (3d Cir. 2004). 591 S.E.2d 796 (2004). 506 (B.I.A. 1992). 39. Jordan v. De George, 341 U.S. 223, 73. United Nations Convention against 13. KRAMER, supra note 8, at 77. 232 (1951). Torture and Other Cruel, Inhuman or 14. 8 U.S.C. § 1182(a)(2). 40. 8 U.S.C. § 1227(a)(2)(A)(iii). Degrading Treatment or Punishment, 15. KRAMER, supra note 8, at 72. 41. Id. § 1101(43). adopted Dec. 10, 1984, S. Treaty 16. Id. at 71. 42. Id. Doc. No. 100-20 (1988), 1465 17. 8 U.S.C. § 1101(a)(48). 43. Id. § 1101(43)(F). U.N.T.S. 113 (entered into force 18. Id. § 1101(a)(48)(B). 44. 18 U.S.C. § 16. June 26, 1987). 19. Matter of Ozkok, 19 I. & N. Dec. 45. Leocal v. Ashcroft, 543 U.S. 1, 10 74. 8 U.S.C. § 1158. 546 (B.I.A. 1988). (2004). 75. Id. § 1158(b)(2)(A)(ii). 20. KRAMER, supra note 8, at 47 (citing 46. Id. 76. KRAMER, supra note 8, at 231. Matter of Ozkok, 19 I. & N. Dec. 47. O.C.G.A. § 40-6-391 (2007). 77. Id. 546 (B.I.A. 1988)). 48. In re Vasquez-Muniz, 23 I. & N. 78. 8 U.S.C. § 1231(b)(3)(B)(ii). 21. Matter of L___ R___, 8 I. & N. Dec. Dec. 207 (B.I.A. 2002). 79. 8 C.F.R. §§ 208.16 to 208.18 (2007). 269 (B.I.A. 1959), at 3. 49. O.C.G.A. § 16-11-126 (2007). 80. 8 U.S.C. § 1229b(a). 22. KRAMER, supra note 8, at 47. 50. Adefemi v. Ashcroft, 386 F.3d 1022 81. Id. § 1229b(c). (11th Cir. 2004). The Lawyer Assistance Program of the State Bar of Georgia Stress? The Lawyer Assistance Program is a free program providing confidential assistance to Bar members Chemical dependency? whose personal problems may be interfering with Family Problems? their ability to practice law. Mental or Emotional For more information, please call the confidential Impairment? hotline number at 800-327-9631.
December 2007 33 A Look at the Law
Understanding the Effects of Consular Relations on the Representation of Foreign Nationals
by Carine L. Rosalia-Marion
ecent debate regarding immigration reform of “Consular Immunity: Guidance for Law Enforcement and Judicial Authorities” is available serves as a reminder that many foreign from the State Department upon request.3 The first part of this article presents an overview of the role of con- nationals are now in the United States, sular officials in the trial of a foreign national, and the R second part offers recommendations for the attorney whether permanently or temporarily, legally or not. representing a foreign national.
Regardless of their immigration status, however, most Recognizing the Interest of Consular Officials in a Foreign foreign nationals who find their way into a courtroom National’s Trial are affected by the Vienna Convention on Consular Under the Vienna Convention, a consular officer is entitled to protect the interests of the nationals of his state. Relations (“Vienna Convention”)1 or a bilateral con- The Vienna Convention specifically provides that “con- sular functions consist in . . . representing or arranging sular convention between their country of nationality representation for nationals of the sending State before the tribunals and other authority of the receiving State”4 and the United States. The rights granted under these and sets out the right of a consular officer to communicate with and visit the nationals of the sending state. Hence, conventions are of significant importance, but few consular functions are not merely limited to legalizing documents and assisting the estate of a citizen who dies attorneys and courts fully understand the implications abroad. Representation of the detained foreign national or the foreign minor is an integral part of the consular of the Vienna Convention and other similar agreements functions expressly protected by the Vienna Convention. Accordingly, a consular officer’s involvement in the trial for their foreign clients and for their representation. of a foreign national should not be interpreted as interfer- ing with the jurisdiction of an American court. The U.S. Department of State’s website2 provides The Vienna Convention was the result of immense comments to the provisions of the Vienna Convention efforts to codify international common-law consular and offers guidance on consular relations. A free copy relationships.5 It was largely intended to “contribute to
34 Georgia Bar Journal the development of friendly rela- designed to protect individuals in officials according to the tions among nations.”6 The Vienna dire circumstances by providing Supremacy Clause of Article VI of Convention defines the obligations them with consular assistance. The the U.S. Constitution.16 Thus, a of signatory States with respect to language barrier, the difference in consular officer may exercise his the treatment of foreign nationals, culture and an unfamiliar judicial consular prerogatives without and lays out the rights and func- system may expose the foreign interfering with the jurisdiction of tions of consular officials, as well as national to higher risks than his American courts. the privileges and immunities American counterpart and lead Although the Vienna attached to their posts. The United him to make decisions based on Convention only expressly impos- States Senate approved the Vienna fear and manipulation from es obligations on law enforcement Convention in October 1969,7 and authorities. The foreign national’s authorities, in a case in which a for- it came into force on Dec. 24, 1969.8 lack of knowledge of his funda- eign national is a party, attorneys The Vienna Convention has been mental constitutional rights and a and judges should be prepared to almost universally adopted: As of lack of familiarity with certain work with consular officials to June 1997, 165 countries are party common legal concepts, such as the ensure that the United States com- to the agreement.9 In addition, right to counsel or the right to plies with consular agreements. bilateral consular conventions pre- remain silent, may render dating the Vienna Convention are Miranda13 warnings alone ineffec- What This Means for still in effect between the United tive or insufficient.14 The consular the Attorney of a States and several countries that officer of the foreign national’s are not party to the Vienna country is in a unique position to Foreign National Convention.10 Zambia, for exam- explain how the American judicial Although courts have estab- ple, is not a party to the Vienna system works in relation to the for- lished that the right to consular Convention, but consular relations eign national’s judicial system15 notification is not considered a between Zambia and the United and to minimize interpretation fundamental right,17 attorneys States are governed by a consular problems and cultural differences, representing foreign nationals convention signed by the two which should help the foreign should ensure that state authori- countries in Washington, D.C., in national to gain awareness of his ties comply with the Vienna 1951.11 situation and rights. Convention. The attorney should Provisions relating to the notifi- The provisions of the Vienna inquire whether the client has been cation of consular officials12 are Convention are binding on state made aware of his right to contact
December 2007 35 the nearest consul of the client’s ments between the foreign national’s Ensuring the Opportunity country of nationality and seek country and the United States may For Consular Officials To consular assistance.18 If the client impose a mandatory notification.23 Provide Assistance To the has not been properly informed, In that case, state authorities Foreign National the attorney should then advise should immediately notify the for- Once consular officials have him of the benefits of seeking con- eign national’s consular officials been notified, the attorney for the sular assistance.19 nearest to the place of the arrest or foreign national should verify that detention.24 The Department of the consul is given access to the Ensuring That Consular State suggests that the following judicial and extra-judicial docu- Officials are Notified statement accompany the offer to ments pertaining to the foreign notify the foreign national’s con- national.29 The attorney should Arrest/Detention sular officials: also make sure that consular offi- If the foreign client is arrested or cials are able to communicate detained, consular officials should Because of your nationality, we freely with the foreign national.30 be notified.20 Notification may be are required to notify your coun- In the event that state authorities optional or mandatory, depending try’s consular representatives are interfering with consular func- on circumstances. here in the United States that you tions and are therefore in violation of Under the Vienna Convention, have been arrested/detained. the Vienna Convention, the attorney the foreign national may request After your consular officials are for the foreign national may file a that consular officials be notified. notified, they may call or visit motion for relief.31 The availability of Notification is made optional on you. You are not required to any remedy for violation of an indi- the part of the foreign national. accept their assistance, but they vidual’s right to consular notification The foreign national should be may be able to help you obtain is very limited, however, because the offered, without delay, an opportu- legal counsel and may contact foreign national must demonstrate nity to notify consular officials. The your family and visit you in that he has suffered prejudice as a Department of State suggests that detention, among other things. result of the violation of his right. the following statement accompa- We will be notifying your coun- The foreign national bears the bur- ny the offer to notify the foreign try’s consular officials as soon as den of proof and must produce evi- national’s consular officials: possible.25 dence that (1) the foreign national did not know of his right; (2) the for- As a non-U.S. citizen who is State authorities are then obligat- eign national would have availed being arrested or detained, you ed to forward any communication himself of the right had he known of are entitled to have us notify that is addressed to the consular it; and (3) there was a likelihood that your country’s consular repre- post from the foreign national who contact with the consul would have sentatives here in the United is arrested or is in prison, custody resulted in assistance to the foreign States. A consular official from or detention.26 The consular officer national.32 Moreover, courts have your country may be able to help shall also have the right to meet, not recognized the right to consular you obtain legal counsel, and converse or correspond with the notification as a fundamental consti- may contact your family and foreign national who is in prison, tutional right33 and have rejected the visit you in detention, among custody or detention, and arrange arguments that the failure to inform other things. If you want us to for his legal representation.27 a foreign national of his right to con- notify your country’s consular sular notification should amount to a Guardianship/Trusteeship officials, you can request this jurisdictional defect.34 Nevertheless, notification now, or at any time In the case of a minor or an scholars have suggested that the vio- in the future. After your consular incompetent adult, and where a lation of the right to consular notifi- officials are notified, they may guardianship or trusteeship is con- cation may be effectively used to call or visit you. Do you want us sidered, state officials must notify achieve executive clemency.35 to notify your country’s consular consular officials.28 Hence, attor- Because it is so difficult to satisfy officials?21 neys representing children in dep- the burden of proving that the for- rivation cases should verify that eign national suffered prejudice as If the foreign national chooses to the consul of the minor’s country of a result of the violation of consular notify consular officials, state nationality is aware of the status of relations, attorneys must learn authorities must notify the nearest that child so that the child can ben- about the rights granted by the consular post of the sending state efit from consular assistance. Vienna Convention and other bilat- without delay.22 Where a child is in proceedings, a eral consular conventions and aim Although optional notification is guardian ad litem should be made at preventing any potential violation sufficient to comply with the Vienna aware of the availability of con- of their clients’ rights to consular Convention, some bilateral agree- sular assistance. assistance.
36 Georgia Bar Journal Carine L. Rosalia- 10. A list of states party to a bilateral 28. Id. art. 37(b). Marion is an associate consular convention with the 29. Id. art. 5(j). attorney with Steffas & United States is available at 30. Id. art. 36(1)(a). Associates, P.C., where http://travel.state.gov/law/ 31. Leading Cases, Enforceability of she practices in the consular/consular_744.html. Treaties in Domestic Courts – Vienna 11. Consular Convention between the Convention on Consular Relations, areas of adoption, United States of America and the 120 HARV. L. REV. 303 (2006). immigration and assisted repro- United Kingdom of Great Britain 32. See United States v. Briscoe, 69 F. duction technologies. She earned and Northern Ireland, signed June Supp. 2d 738 (D.V.I. 1999), rev’d her J.D. from Tulane University Law 6, 1951, U.S.-U.K., 3 U.S.T 3426. without opinion, 234 F.3d 1266 (3d School and obtained a Maîtrise de 12. E.g., Vienna Convention on Cir. 2000). Droit Privé from the Université of Consular Relations, supra note 1, 33. See Murphy v. Netherland, 116 Grenoble Law School, France, as arts. 5, 36 & 37. F.3d 97 (4th Cir. 1997); United well as a Diploma in English Law 13. See Miranda v. Arizona, 384 U.S. States v. Bin Laden, 132 F. Supp. from the University of Kent Law 436 (1966). 2d 168 (S.D.N.Y. 2001); Polanco v. School, U.K. 14. Mark J. Kadish & Charles C. United States, No. 99 Civ. 5739, Olson, Sanchez-Llamas v. Oregon 2000 WL 1072303 (S.D.N.Y. Aug. 3, and Article 36 of the Vienna 2000) (“[A] violation of the Vienna Endnotes Convention on Consular Relations: Convention’s consular notice pro- 1. Vienna Convention on Consular The Supreme Court, the Right to vision does not constitute a consti- Relations, art. 5(a), Apr. 24, 1963, Consul and Remediation, 27 MICH. J. tutional violation or a fundamental 21 U.S.T. 77, 596 U.N.T.S. 261, INT’L L. 1185, 1188 (2006). defect in the conduct of [defen- available at 15. Linda Jane Springrose, Strangers in dant’s] trial.”); United States v. http://untreaty.un.org/ilc/texts/ a Strange Land: The Rights of Non- Rodrigues, 68 F. Supp. 2d 178 instruments/english/conventions/ Citizens Under Article 36 of the (E.D.N.Y. 1999). 9_2_1963.pdf. Vienna Convention on Consular 34. See United States v. Flores-Garcia, 2. U.S. DEPARTMENT OF STATE, Relations, 14 GEO. IMMIGR. L.J. 185, 230 F.3d 1364 (8th Cir. 2000) CONSULAR NOTIFICATION AND 195 (1999). (unpublished Table disposition); ACCESS, available at 16. United States v. County of United States v. Guzman- http://travel.state.gov/law/ Arlington, 669 F.2d 925, 931-32 Landeros, 207 F.3d 1034 (8th Cir. consular/consular_753.html. (4th Cir. 1982). 2000). See also Ex parte Medellin, 3. A copy of the pamphlet CONSULAR 17. Ann K. Wooster, Annotation, 223 S.W.3d 315 (Tex. Crim. App. IMMUNITY: GUIDANCE FOR LAW Construction and Application of 2006), cert. granted sub nom. ENFORCEMENT AND JUDICIAL Vienna Convention on Consular Medellin v. Texas, 127 S. Ct. 2129 AUTHORITIES may be obtained by Relations (VCCR), Requiring that (2007), in which the Texas Court of writing to the following address: Foreign Consulate be Notified When Criminal Appeals rejected Protective Liaison Division - One of its Nationals is Arrested, 175 Medellin’s argument that it should Bureau of Diplomatic Security - A.L.R. FED. 243 § 3 (2007). enforce an International Court of U.S. Department of State - SA-33 - 18. Springrose, supra note 15, at 188- Justice’s ruling (and President Washington, DC 20522. 89. Bush’s subsequent memo asking 4. Vienna Convention on Consular 19. Id. state courts to enforce the ICJ’s rul- Relations, supra note 1, 21 U.S.T. 20. U.S. DEPARTMENT OF STATE, ing) that nationals of signatory 77. The term “sending State” is CONSULAR NOTIFICATION AND states must be given notice of the used to refer to the state that the ACCESS, PART 1: BASIC right of consular notice. The Texas consular post represents. The term INSTRUCTIONS, available at court ruled, among other things, “receiving State” is used to refer to http://travel.state.gov/law/ that allowing Medellin to raise the the state where the consular post is consular/consular_737.html. Vienna Convention issue after his located. 21. Id. trial would violate state procedur- 5. Emily Deck Harrill, Exorcising the 22. Vienna Convention on Consular al rules, and that those rules were Ghost: Finding a Right and a Remedy Relations, supra note 1, art. 36. not supplanted by the Vienna in Article 36 of the Vienna 23. A list of states requiring mandato- Convention. The Supreme Court Convention on Consular Relations, 55 ry notification is available at granted certiorari and heard argu- S.C. L. Rev. 569, 569 (2004). http://travel.state.gov/law/ ments in October 2007, but as of 6. Vienna Convention on Consular consular/consular_744.html. the date that this article goes to Relations, supra note 1, Preamble. 24. U.S. DEPARTMENT OF STATE, press, has not issued its opinion on 7. Harrill, supra note 5, at 569. CONSULAR NOTIFICATION AND the matter. 8. Vienna Convention on Consular ACCESS, PART 1: BASIC 35. Michael Candela, Case Note, Relations, supra note 1. INSTRUCTIONS, available at Judicial Notification: A Simple 9. U.S. DEPARTMENT OF STATE, http://travel.state.gov/law/ Solution to Ensure Compliance with CONSULAR NOTIFICATION AND consular/consular_737.html. the Vienna Convention on Consular ACCESS, PART 5: LEGAL MATERIAL, 25. Id. Relations, 18 PACE INT’L L. REV. 343, available at 26. Vienna Convention on Consular 361 (2006). http://travel.state.gov/law/ Relations, supra note 1, art. 36. consular/consular_744.html. 27. Id. art. 36(1)(c).
December 2007 37 GBJ Feature
Immigration Policy and the Local Housing Ordinance Explosion: Are Local Communities Running Afoul of the Preemption Doctrine?
by Anne E. Andrews
s comprehensive immigration reform fal- Ordinance”), made it unlawful for any landlord in the county to “let, lease, or rent a dwelling unit to an ille- tered in 2006 and again in 2007, local com- gal alien, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the munities took immigration policy into United States in violation of law,” or to “suffer or per- A mit the occupancy” of such a person.3 A landlord rent- their own hands by enacting housing ordinances ing to an alien who is “not lawfully present in the United States” is deemed under the Cherokee aimed at excluding undocumented aliens from their Ordinance to be harboring an illegal alien, and is sub- ject to having his business license suspended.4 The communities. In courts across the United States, parties Cherokee Ordinance also directs Cherokee County to pass on identifying information about such tenant(s) are fighting over whether these communities over- alleged to be the subject of the landlord’s violation “to the appropriate state or federal enforcement agency.”5 stepped their constitutional boundaries by enacting The consequences of the Cherokee Ordinance were short lived. Although the Cherokee Ordinance took these ordinances. By way of comparison, this article effect on Jan. 1, 2007,6 Cherokee County agreed to sus- pend it three days later, after the ACLU filed suit in the discusses one such Georgia community’s attempt to U.S. District Court for the Northern District of Georgia, alleging that the law represented an impermissible exclude undocumented aliens.1 attempt by a local government to legislate in an area of law reserved solely to the federal government.7 By When Cherokee County commissioners approved agreeing to suspend the ordinance, at least temporari- an ordinance in December 2006, requiring landlords to ly, Cherokee County seemed to indicate that it would verify their tenants’ citizenship status, Georgia became prefer to allow other communities with similar ordi- the most recent in a rash of states to have governments nances to test the constitutional issues presented and enact measures aimed at preventing undocumented bear the cost of such litigation.8 At the same time as the aliens from living in their communities.2 Cherokee Cherokee County controversy, communities in County Ordinance No. 2006-003 (“Cherokee Pennsylvania, Missouri, California, Texas and New
38 Georgia Bar Journal Jersey were embroiled in litigation that underlie national debates the United States, and the authori- involving similar controversies.9 involving immigration reform. In ty to prescribe the conditions One such community was addition to those underlying atti- under which foreigners will be Hazleton, Penn., which was among tudes, however, these lawsuits also allowed to enter, rests with the fed- the first to enact an immigrant promise to expose the underlying eral government.17 The states may housing ordinance.10 The Hazleton constitutional issues that arise not prescribe the conditions under ordinance (“Hazleton Ordinance”) when a local government legislates which foreigners may immigrate to required tenants of residential on a matter explicitly reserved to the United States; of course, no properties to provide proof of citi- the federal government. local community has attempted to zenship or legal residency status in Despite local governments’ go that far.18 Since 1892, Congress order to be granted a mandatory attempts to legislate in areas has enacted a comprehensive body “occupancy permit.”11 A landlord involving immigrants, such legisla- of laws governing immigration, the found in violation of this require- tion is often deemed ineffective as Immigration and Nationality Act ment would be deemed to be hous- preempted by federal law. Under (INA).19 The enactment of the INA ing an illegal alien and sanctioned the Supremacy Clause of the U.S. seems to underscore the federal accordingly. Constitution, state laws that inter- government’s primacy in this area. Shortly after Hazleton Not every local law, passed its ordinance, oppo- however, that refers to a nents thereof sued Hazleton person’s citizenship status in response.12 The plaintiffs is preempted by federal in the action were com- law. For example, in 1976, posed of a group of docu- the Supreme Court upheld mented and undocumented a California statute that aliens and several nonprofit prohibited employers in organizations.13 Opponents that state from hiring “an of the Hazelton Ordinance alien who is not entitled to argued that it would cause lawful residence in the landlords to discriminate United States” when doing against potential tenants on so would harm local work- the basis of ethnicity or ers.20 As the Court national origin, something explained, “standing specifically prohibited by alone, the fact that aliens the Fair Housing Act.14 are the subject of a state Proponents of the Hazelton statute does not render it a Ordinance responded that it regulation of immigra- made good sense, because tion.”21 Such a conclusion, their community was over- however, only begs the burdened with “illegals,” question: When will feder- who, they believed, were al immigration law pre- disproportionately respon- empt state or local regula- sible for drugs and violent tions governing the treat- crime in the area. They con- ment of noncitizens, and tended that the Hazelton what, if anything, can local Ordinance would stem the communities do to flow of “illegals” to their Photo by Sarah I. Coole respond to what they see town, thus curbing the as a growing immigration influx of drugs and occurrence of fere with, or are contrary to, federal crisis when Congress fails to do so? violent crime.15 law may be deemed invalid under As housing ordinances targeting Both locally and nationally, the doctrine of preemption.16 immigrants continue to face consti- debates involving immigration Under that doctrine, certain areas tutional challenges, federal courts policy and legislation are highly of law are specifically reserved to continue to explore this question. polarized. Lawsuits challenging the federal government. On July 26, 2007, Judge Munley of local housing ordinances affecting The power to admit or exclude the U.S. District Court for the immigrants, like the litigation foreigners from the United States Middle District of Pennsylvania against Hazleton, appear fueled by has always belonged to the federal issued the first major decision on the same deeply-felt attitudes government. As early as 1892, the the constitutionality of immigrant toward immigration, immigrants Supreme Court held that the power housing ordinances in Lozano v. and their impact on the economy to admit or exclude foreigners from City of Hazleton.22 After examining
December 2007 39 the Hazleton Ordinance and relat- ordinances that specifically exclude judges are the only individuals authorized to determine whether ed ordinances, Judge Munley held certain individuals from inhabiting an alien is lawfully present, this that local governments may not dwellings or sanctioning landlords article uses the term “undocument- prohibit an individual from living for providing housing to such indi- ed alien” when not discussing 29 in a community on the basis of citi- viduals. individual ordinances that use zenship status. In that case, the Although Lozano suggests that other terms. court concluded that such ordi- preemption might prevent local 2. Alex Kotlowitz, Our Town, N.Y. nances directly conflict with the communities from restricting TIMES, Aug. 5, 2007, at § 6 (stating “carefully drawn federal statutory undocumented aliens’ access to that over 40 communities have scheme” governing federal immi- housing, local communities appear enacted similar housing ordi- gration law, and were thus pre- to be forging ahead in their nances in the past two years). empted.23 In reaching its decision, attempts to keep out undocument- 3. CHEROKEE COUNTY, GA., ORDINANCE 2006-03, § 18-503(a) (Dec. 5, 2006). the court reasoned that ordinances ed aliens. This persistence may 4. Id. § 18-504(d). requiring officials to classify a resi- indicate that local communities are 5. Id. § 18-504(g). dent’s citizenship status as “legal” frustrated with the national gov- 6. Id. § 18-505. or “illegal” were invalid, because ernment’s failure to address what 7. Order granting TRO, Stewart v. under federal law this determina- many see as a broken system. Cherokee County, No. l:07-CV- tion can be made only after formal 0015 (N.D. Ga. Jan. 4, 2007). removal proceedings before an Anne E. Andrews is 8. Christopher Quinn, Illegal immigration judge.24 Judge currently serving as a Immigration: Cherokee to Learn from Munley pointed out that even law clerk in the U.S. Fate of Laws Elsewhere, ATLANTA J. when an individual is determined District Court for the CONST., Jan. 13, 2007, at B3. to be present in the United States in Northern District of 9. The town of Valley Park, Mo., enacted a law imposing a $500 fine violation of U.S. immigration laws, Georgia. She attended upon a landlord who “knowingly Tufts University where she earned that individual may be eligible to allow[ed] an illegal alien to use, adjust immigration status to a B.A. in International Relations rent or lease their property.” 25 remain in the country legally. and German. After college, she VALLEY PARK, MO., ORDINANCE Judge Munley concluded his opin- earned a J.D. from Washington 1708, § 3(A) (July 17, 2006); see also ion by stating that “Hazleton, in its University in St. Louis, Mo., where Janet Shamlian, Town’s Mayor zeal to control the presence of a she served as an editor on the Tackles Illegal Immigration, MSNBC group deemed undesirable, violat- Washington University Law Interactive, Aug. 23, 2006, available ed the rights of such people, as well Review. She can be reached at at http://www.msnbc.msn.com/ as others within the community,” [email protected]. id/14487620. In response, a group and admonished the city for of local landlords filed suit, argu- ing that the ordinance encouraged attempting to circumvent the Endnotes racial profiling and was not based 1. Although most ordinances dis- Constitution, emphasizing that on evidence indicating that immi- cussed in this article refer to “ille- “the United States Constitution grants were a threat or burden to 26 gal aliens,” that term is not specifi- protects even the disfavored.” the community. See Reynolds v. cally defined under the Despite the Lozano decision and City of Valley Park, No. 06-CC- Immigration and Nationality Act the attention it received, local gov- 3802 (St. Louis County Cir. Ct.) (INA). The INA defines the term ernments continue their attempts (filed July 17, 2006). “alien” as “any person not a citi- The city of Escondido, Calif., to exclude undocumented aliens zen or national of the United adopted a similar ordinance, enti- from their communities. The States.” 8 U.S.C. § 1101(3) (2006). tled, “An Ordinance of the City of mayor of Hazleton vowed to Aliens may be present in the Escondido, California Establishing appeal the case to the Supreme United States lawfully as immi- Penalties for the Harboring of Court.27 Moreover, other commu- grants or non-immigrants, or may Illegal Aliens in the City of be undocumented or present nities with plans to enact similar Escondido,” requiring landlords to unlawfully (e.g., remaining beyond housing ordinances have indicated verify their tenants’ lawful citizen- a permissible date or not entering that they plan to “reword” their ship status and affirmatively prove the United States at a designated legislation before introducing it in that none of their tenants are port of entry). Even if an alien is the hopes of withstanding constitu- unlawfully present in the United present in the United States in vio- tional challenges.28 Yet other com- States. ESCONDIDO, CAL., ORDINANCE lation of applicable law, such alien 2006-38R (Oct. 18, 2006). One munities across the United States, may be declared lawfully present month later, the city was sued in including several in Georgia, by an immigration judge and the United States District Court for appear to be attempting to circum- allowed to remain in the United the Southern District of California vent court rulings altogether by States. Thus, since the term “illegal by plaintiffs, alleging that the ordi- drafting legislation that indirectly alien” means different things to nance infringed upon their consti- achieves the same result as housing different people, and immigration
40 Georgia Bar Journal tutional rights. See Garrett v. Fund have been involved in chal- Escondido, 06-CV-2434 (S.D. Cal.) lenging housing ordinances across (filed Nov. 3, 2006). the United States. In Texas, the city of Farmers 14. See 42 U.S.C. § 3604(a) (2000) Branch enacted an ordinance sanc- (wherein it is declared unlawful to tioning apartment owners with make housing unavailable “to any fines of up to $500 per day for fail- person because of race, color, reli- ure to obtain proof of legal United gion, sex, familial status, or nation- States residency from all tenants al origin”). prior to either entering into a new 15. See Pennsylvania Town, supra note lease or renewing an existing 11; see also Mem. filed with TRO at lease. FARMERS BRANCH, TEX., 7, Lozano v. City of Hazleton, 496 ORDINANCE 2892 (Nov. 11, 2006); F. Supp. 2d 477 (M.D. Pa. 2007) see also Stephanie Sandoval, (wherein the court responded to Apartments Sue Over FB Ordinance, supporters’ arguments while grant- DALLAS MORNING NEWS, Dec. 23, ing a TRO to the plaintiffs, noting 2006, at 1B. Residents and land- that the city had “offered no evi- Save lords sued the city over the law, dence to connect this increase to which they argued imposed the presence of illegal immi- Valuable “severe burdens” on both land- grants”); see also id. (citing Ellen lords and tenants. See Vasquez v. Barry, City Vents Anger at Illegal Research City of Farmers Branch, No. 3:06- Immigrants, LOS ANGELES TIMES, CV-2376 (N.D. Tex.) (filed Dec. 26, July 14, 2006, at A1 (noting that the 2006). number violent crimes committed Time Likewise, an ordinance passed in in Hazleton had actually decreased the town of Riverside, N.J., prohib- commensurate with the surge in Casemaker is a Web-based ited “illegal aliens” from “leasing or immigrant population)). legal research library and renting property.” RIVERSIDE, N.J. 16. See U.S. CONST. art. VI, § 2. search engine that allows you ORDINANCE 2006-16 (July 26, 2006). 17. See Ekiu v. United States, 142 U.S. Riverside repealed its ordinance 651, 659 (1892). to search and browse a vari- after a group of plaintiffs filed suit 18. See, e.g., id. ety of legal information such to have the law declared unconsti- 19. See 8 U.S.C. §§ 1101-1537 (2006). as codes, rules and case law tutional. See Riverside Coalition of 20. See DeCanas v. Bica, 424 U.S. 351, Business Persons & Landlords v. 353-55 (1976). through the Internet. It is an Township of Riverside, No. BURL- 21. Id. at 355. easily searchable, continually L-2965-06 (N.J. Super. Ct.) (filed 22. See Lozano v. City of Hazleton, 496 updated database of case Oct. 18, 2006). F. Supp. 2d 477 (M.D. Pa. 2007). 10. See HAZLETON, PA., ORDINANCE 23. Id. at 555. law, statutes and regulations. 2006-13 (Aug. 15, 2006). Ordinance 24. Id. at 532. 2006-13 was later replaced by 25. Id. at 531-32. Each State Bar of Georgia Ordinance 2006-18, which was 26. Id. at 555. member may log in to ultimately amended by Ordinance 27. Jane Roh, After Hazleton Ruling, Casemaker by going to the 2007-6, both of which incorporated What Would SCOTUS Do?, NAT’L State Bar’s website at the tenant registration require- J., July 27, 2007, available at ment. See HAZLETON, PA., http://thegate.nationaljournal.com/ www.gabar.org. ORDINANCE 2006-18 (Sept. 21, 2007/07/after_hazleton_ruling_ 2006); HAZLETON, PA., ORDINANCE what_wou.php. The Casemaker help line is 2007-6 (Mar. 21, 2007). 28. See Kotlowitz, supra note 2. operational Monday thru 11. HAZLETON, PA. ORDINANCES 2006- 29. In August 2007, Georgia’s Cobb, Friday, 8:30 a.m. to 5 p.m. 13, 2006-18, 2007-6; see also Gwinnett and Forsyth counties pro- Pennsylvania Town Passes Illegal posed occupancy ordinances that locally at 404-527-8777 Immigration Law, Online would restrict the number of people or toll free at 877-CASE-509 NewsHour, Sept. 1, 2006, available living in one household, a provision or 877-227-3509. at http://www.pbs.org/newshour/ that critics say strikes at undocu- bb/social_issues/july-ec06/ mented immigrants sharing housing, Send e-mail to: immigration_09-01.html [here- because they cannot afford to do [email protected]. All inafter Pennsylvania Town]. otherwise. See Nancy Badertscher, 12. See Lozano v. City of Hazelton, 496 FORSYTH CONSIDERS OCCUPANCY e-mail received will receive a F. Supp. 2d 477 (M.D. Pa. 2007). RULES, ATLANTA J. CONST., Aug. 15, response within 24 hours. 13. Nonprofit organizations such as the 2007, at B3; George Chidi & Mary American Civil Liberties Union, the Lou Pickel, GWINNETT COMMISSIONER Mexican American Legal Defense LOOKS TO LIMIT RESIDENTS IN and Education Fund and the Puerto HOUSEHOLD, ATLANTA J. CONST., Aug. Rican Legal Defense and Education 8, 2007, at D3.
December 2007 41 GBJ Feature
The Fellows Program of the Lawyers Foundation of Georgia
by Lauren Larmer Barrett
n 1982, two friends sat down to lunch and by the ideas die a quick death, buried in someone’s to do pile. That wasn’t the case this time. They spoke with other time they had paid their tab, the Fellows Bar leaders, McAlpin agreed to chair a committee, and together they recruited the first group of Fellows. At Program was born. Those two friends, Frank that time, the Fellows Program was part of the Georgia I Bar Foundation. As the 25th anniversary of the pro- Love Jr. and Kirk McAlpin, were both active in the gram nears, it is a good time to reflect on whom the Fellows are and what their dedication and contribu- State Bar of Georgia, and were both Fellows of the tions have accomplished. Attorneys and judges are handpicked every year to American Bar Foundation. The American Bar join the program. Every individual who receives an invi- tation does so because of their outstanding contributions Foundation is affiliated with the American Bar to the community and the profession, as well as their professional accomplishments. According to Love, State Association, and the American Bar Fellows is an hon- Bar of Georgia past president, 1982-83, one of the origi- nal intents behind the Fellows Program was “to honor orary organization made up of lawyers, judges and law the best of our profession and provide a forum for social and professional dialog among those so honored.” professors whose public and private careers have The Fellows Program grew steadily for the first few years. The donations pledged by the Fellows were used demonstrated outstanding dedication to the welfare of to fund a variety of projects and programs that could not be funded by the State Bar of Georgia. The State Bar their community and the highest principles of their is often approached for funding for many different projects, but it is not a charitable organization and has profession. They support and encourage the programs no funds which it can use to support even the most worthy of these causes. The donations from the of the American Bar Foundation. Fellows allowed the leaders of the profession to assist with a number of worthwhile projects. When IOLTA Over lunch that day, Love and McAlpin realized that (Interest On Lawyers Trust Accounts) came along, the Georgia’s lawyers and the legal profession in Georgia program languished, as funds were readily available would benefit from the dedication and vision that such from that source to fund the projects selected by the a group would bring. Quite often, these wonderful Georgia Bar Foundation.
42 Georgia Bar Journal “Being part of the Fellows makes you proud of your profession. You are part of a group of lawyers who are dedicated to all that makes America strong: the rule of law, the independence of the judiciary and the importance of access to justice for all.” –Linda Klein
In 1998, the Lawyers Foundation are dedicated to all that makes Supreme Court justice all at one of Georgia (LFG) was created with America strong: the rule of law, table at the annual Fellows Dinner. the vision of outstanding legal pro- the independence of the judiciary “The Lawyers Foundation was fessionals administering a fund to and the importance of access to created to fund programs and proj- enhance the system of justice, sup- justice for all.” ects that the State Bar cannot fund porting the lawyers who serve it, Fellows are given opportunities with its mandatory dues. The and assisting the community it to serve the profession through Foundation does two very impor- serves. The Fellows Program was LFG in at least two ways. First, tant things: first, it carefully exam- transferred to LFG, and became its their charitable contributions are ines requests for financial assis- premier program, providing a vari- used to help our community and tance from bar associations and ety of resources: time, expertise, our profession by funding impor- other organizations that ask for talent, and of course, funds. Since tant projects that impact attorneys funding. Then, if the Foundation, 1998, the Fellows Program has and the community around the after investigation, determines that more than doubled in size. When state. Second, their efforts on the proposal is sound and that it the program was first established, behalf of the LFG through commit- has a nexus with the legal profes- there was a cap of 3 percent of the tee service, contribution facilitation sion, the Foundation can serve as a active membership of the State Bar. and project participation enhance vehicle for funding the project with This ensured that each application everything the LFG accomplishes. donations from its fellows, grants for Fellowship would be treated “Being a Fellow allows you to and other sources,” said Hal with all due respect and considera- work with a select group of other Daniel, 1994-95 State Bar president. tion. That cap was reached several lawyers from across the state who One of the ways the LFG funds years ago, and the cap has now are committed to improving the programs is through the Challenge increased to 4 percent, with other justice system and the community Grant program. Established in factors taken into consideration at large. Programs like Service Juris 2000, the Challenge Grant when calculating the total number help to show that lawyers do care Program serves two purposes: one, of active Fellows. There are now about and give back to their com- as a method to encourage new ini- 1,062 Fellows, and there is room in munities in a variety of ways. tiatives by law-related organiza- the program for about 300 more. Programs like the Challenge Grant tions, and two, to support public Fellows come from throughout help to provide needed funding to service by bar associations. The the state. There are judges, law a wide variety of law-related jus- program offers small grants, most professors, solo practitioners, in tice initiatives, including necessary of which have been less than house counsel, and partners and but sometimes unpopular legal $10,000, which must be matched associates from every size firm. work,” said Board of Governors within a certain period of time. Please visit the website at member Karlise Y. Grier. The grants offer an opportunity to www.gabar.org/related_organiza The events and meetings of the tions/lawyers_foundation, and Fellows Program give every Fellow you will find a complete list of all an opportunity they may not other- GEORGIA DOMESTIC Fellows. The list is incredibly wise have to meet, and talk with, a SOLUTIONS impressive. If you looked at the tremendous variety of lawyers from resume of any of those individuals, around the state. There are few Asset Research & Discovery you would find a very accom- other opportunities for such a cross plished and dedicated lawyer. section of lawyers to talk with about FREE TRIAL OFFER FOR These are all lawyers who stand the profession, the community, ATTORNEYS for what is best about the profes- their golf game or their children. It’s Doug Hill Louise Stefani sion of law. As Linda Klein, State not unusual to see attorneys from Bar past president, 1997-98, said, big Atlanta firms, small towns in Office: 770-5514-44203 “Being part of the Fellows makes Southwest Georgia and a corporate www.gdsinvestigations.com License PDC002283 you proud of your profession. You counsel from a Fortune 500 compa- are part of a group of lawyers who ny with a retired State of Georgia
December 2007 43 the local and voluntary bar associ- ■ A Business Commitment Com- ■ BASICS (Bar Association ations as well as other law related mittee to train business attor- Support to Improve organizations to engage the legal neys to provide assistance to Correctional Services)— community in public service, out- non-profits with their start-up BASICS assists program partic- reach and philanthropy. issues. ipants in being able to stay out While many challenge grant pro- ■ The Georgia Innocence Project of jail, by legitimate means, grams exist, the Lawyers for their pro bono initiative. once they are released by pro- Foundation of Georgia Challenge viding effective instruction, Grant Program is the only one in Thirty-nine other grants were guidance and employability Georgia that focuses funds and awarded to equally strong and counseling. efforts on the legal community. worthwhile programs. The pro- In the seven years the program gram will be repeated again this Of course, it is not only through has been in place, it has awarded 43 year, and the awards will be contributions and other assistance grants. These grants totaled more announced shortly. to LFG that the Fellows enhance the than $217,000. The grants were Since 1998, LFG has supported community and the profession. It matched, dollar-for-dollar or more, many other efforts. Other pro- would not be possible to measure by fundraising efforts by the grant grams funded by LFG include: the impact of the collective hours recipients, thus generating more put into the community and the than $434,000 in charitable contribu- ■ Service Juris—For the past six profession by the Fellows. The tions for the benefit of the communi- years, LFG worked with Hands members of the program have been ty by and through bar associations, On Atlanta and Atlanta area able to leverage their hours and bar foundations and attorneys. attorneys to put together funds through the relationships The grants went to associations Service Juris, a service day for they have developed as a result of and organizations around the state Atlanta area lawyers. More their involvement in the LFG and of Georgia and benefited many dif- than 700 attorneys participated the Fellows program. They have ferent communities. Some of the this year and the program will seen the programs supported by the grants went to statewide programs be repeated next year. Fellows in one community, and such as the Georgia Legal Services ■ Wills Project—The Wills Project duplicated it in other communities. Program and High School Mock of Atlanta Volunteer Lawyers The Fellows have, individually and Trial and some went to community Foundation provided the collectively, exemplified the ideals and minority bar associations such expertise and materials to and mission of the Lawyers as the Western Circuit Bar and allow firefighters in the Atlanta Foundation of Georgia: to enhance Georgia Association of Black area to obtain a will. the system of justice, to assist the Women Attorneys. The grants have ■ Restricted Gifts—Through a community served by it, and to sup- touched countless lives in different number of restricted gifts, the port the lawyers who serve it. ways. Attorneys were pulled into Foundation has been able to public service to complete the proj- provide the funding to build a Lauren Larmer ects and raise the funds, communi- mock trial courtroom in the Barrett is the execu- ty volunteers worked with attor- new Bar Center building, as tive director of the neys on projects and community well as establish a legal history Lawyers Foundation of members benefited from the proj- museum and a re-creation of Georgia and can be ects. Some examples of recipients Woodrow Wilson’s law office. reached at lfg_lauren of these grants included: @bellsouth.net.
■ The High School Mock Trial Program to fund a training SAVE TIME AT video for coaches, allowing dozens of teachers and attor- neys to volunteer at their local www.gabar.org high schools. You can find the services you need for ■ Georgia Association of Black Women Attorneys for a Civil your practice on the Online Vendor Pro Bono Project to provide Directory. Be sure to look for special direct legal services to incar- cerated women with family discounts offered to State Bar Members issues that effect the relation- on the Vendor Directory. ship between a mother and her children.
44 Georgia Bar Journal Annual Fiction Writing Competition Deadline January 18, 2008 The editorial board of the Georgia Bar Journal is pleased to announce that it will spon- sor its Annual Fiction Writing Contest in accordance with the rules set forth below. The purposes of this competition are to enhance interest in the Journal, to encourage excel- lence in writing by members of the Bar, and to provide an innovative vehicle for the illus- tration of the life and work of lawyers. For further information, contact Sarah I. Coole, Director of Communications, State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303; (404) 527-8791.
Rules for Annual Fiction Writing Competition The following rules will govern the Annual Fiction 4. Articles should not be more than 7,500 words in Writing Competition sponsored by the Editorial length and should be submitted electronically. Board of the Georgia Bar Journal: 5. Articles will be judged without knowledge of the 1. The competition is open to any member in good author’s identity. The author’s name and State standing of the State Bar of Georgia, except Bar ID number should be placed on a separate current members of the Editorial Board. Authors cover sheet with the name of the story. may collaborate, but only one submission from 6. All submissions must be received at State Bar each member will be considered. headquarters in proper form prior to the close 2. Subject to the following criteria, the article may of business on a date specified by the Board. be on any fictional topic and may be in any form Submissions received after that date and time (humorous, anecdotal, mystery, science fiction, will not be considered. Please direct all sub- etc.). Among the criteria the Board will consider missions to: Fiction Writing Competition, Sarah in judging the articles submitted are: quality of I. Coole, Director of Communications, State writing; creativity; degree of interest to lawyers Bar of Georgia, 104 Marietta St. NW, Suite and relevance to their life and work; extent to 100, Atlanta, GA 30303. The author assumes which the article comports with the established all risks of delivery by mail. Or submit by e-mail reputation of the Journal; and adherence to to [email protected] specified limitations on length and other compe- 7. Depending on the number of submissions, the tition requirements. The Board will not consider Board may elect to solicit outside assistance in any article that, in the sole judgement of the reviewing the articles. The final decision, howev- Board, contains matter that is libelous or that er, will be made by majority vote of the Board. violates accepted community standards of good Contestants will be advised of the results of the taste and decency. competition by letter. Honorable mentions may 3. All articles submitted to the competition be announced. become the property of the State Bar of 8. The winning article, if any, will be published. Georgia and, by submitting the article, the The Board reserves the right to edit articles author warrants that all persons and events and to select no winner and to publish no arti- contained in the article are fictitious, that any cle from among those submitted if the submis- similarity to actual persons or events is purely sions are deemed by the Board not to be of coincidental and that the article has not been notable quality. previously published. GBJ Feature
Georgia Bar Foundation Awards $6.6 Million by Len Horton
he Georgia Bar Foundation awarded 69
organizations $6.6 million in grants at its T annual grant decisions meeting at the Bar Center in September. Records were set in both the number of organizations receiving awards and the total amount of the grants awarded.
“The near doubling of applications and the more than doubling last year’s total amount requested made this meeting challenging,” said Joe Brannen, president Also, the North- of the Georgia Bar Foundation. “We met the challenge east Georgia Council on and funded a large number of vital organizations Domestic Violence, which supports working to help solve many of Georgia’s most pressing five different domestic shelters in northeast problems.” Georgia, received $45,000. Additional grantees provid- Seventeen organizations received grant awards ing domestic violence assistance included the totaling $3,882,300 to provide civil legal assistance to Columbus Alliance for Battered Women ($15,000), the poor. Atlanta Legal Aid Society and Georgia Legal Savannah Family Emergency Shelter ($30,000), the Services Program together received $3 million. This Liberty House of Albany ($22,000), Halcyon Home in was 100 percent of their request and the largest amount Thomasville ($10,000), Safe Haven in Statesboro ever awarded by the Georgia Bar Foundation. ($10,000) and Flint Circuit Council on Family Violence A number of other organizations that benefit from ($15,000). grants focus on civil legal assistance to women and To increase the number of lawyers volunteering to children in domestic shelters throughout the state. The provide assistance, the Pro Bono Project co-sponsored Georgia Coalition Against Domestic Violence received by the Georgia Legal Services Program and the State $150,000 to handle divorce, custody, visitation, sup- Bar of Georgia received $100,000. The Georgia Law port, and some temporary protective orders not han- Center for the Homeless, which has become a major dled by Atlanta Legal Aid and Georgia Legal Services. force dealing with a statewide problem, received
46 Georgia Bar Journal $60,000. The Law and Public Georgia Banking Executive Elected President Service Program of Mercer University School of Law received of the Georgia Bar Foundation $38,300 to fund a practitioner in by Len Horton residence to work with law stu- J. Joseph Brannen, president and dents assisting clients. Under the able supervision of Professor Tim CEO of the Georgia Bankers Floyd, this new program has Association (GBA), was elected presi- already created a fine reputation dent of the Georgia Bar Foundation at for itself. the annual grants meeting Sept. 28. Diakonia Christian Legal Ser- Brannen became only the second bank- vices received $10,000 to support non-litigation civil legal services to ing industry executive to lead the foun- low-income Georgians near dation in its history. Athens. “I am humbled by the trust of the GreenLaw, the new name of the many lawyers who asked me to lead Georgia Center for Law in the the Georgia Bar Foundation,” said Public Interest, received $75,000 for operating support of their legal Brannen. “This foundation is having a services to low-income, minority significant impact on thousands of citizens needing protection from Georgia’s disadvantaged families. We inequitable and often illegal siting plan to spend the next two years letting more people know and operating industrial facilities. This organization is spearheaded about the diversity of the organizations the Georgia Bar by Justine Thompson. Foundation supports and their work to help Georgia’s most Several organizations received vulnerable individuals.” awards for their civil legal work to Steve Melton, president and CEO of Columbus Bank & assist immigrants, some of whom Trust, was the first full-time banker to be president of the are seeking asylum in the United States. The Refugee Resettlement Georgia Bar Foundation and of any bar foundation in the and Immigration Services of nation. Atlanta received $50,000 to sup- Commenting on Brannen’s election, Melton said, “Joe has port two positions to handle immi- proven himself to be a great leader of Georgia’s banking gration and asylum cases but also industry. He will provide the same leadership to the Georgia to train volunteer attorneys to be able to handle immigrant cases. Bar Foundation.” The Latin American Association GBA, which Brannen has led since 1980, is the trade and received $50,000 to provide civil professional association representing Georgia’s 375 banks and legal assistance to low-income thrift institutions. In 2004 GBA was recognized as the most Latino immigrants. The Detention Project of Catholic Social Services politically influential business association in the state of received $45,000 to assist Latino Georgia. Before coming to GBA, Brannen worked eight years detainees and to train volunteer for Sen. Sam Nunn. lawyers. Caminar Latino received Brannen is also on the Boards of Directors of the Georgia $5,000. Chamber of Commerce and the State YMCA. He is past presi- The Cherokee County Sheriff’s Foundation received $5,000 to dent of the Georgia Society of Association Executives. He fund an advocate for Latinos chairs the Board of the Graduate School of Banking at detained and incarcerated for non- Louisiana State University and is the former chairman of the violent offenses. American Bankers Association’s State Association Division. The Southern Center for Human Rights under the leadership of He is the recipient of the Golden Pigeon Award, the top Steve Bright and Lisa Kung has recognition bestowed upon a lobbyist at the state Capitol by had a major impact on Georgia’s his colleagues in the lobbying community. He has been a prison system and the meaning of member of the Committee of 100 of Emory University’s justice. SCHR received $40,000. Candler School of Theology. Inspired by the leadership of then President Rudolph Patterson, Brannen is a native of Statesboro and a graduate of the University of Georgia. He and his wife Vilda live in Atlanta. December 2007 47 2007-2008 Grant Awards Georgia Bar Foundation
Adopt-A-Role Model Program ...... 25,000 Ga. LRE Consortium, Inst. of Govt., U. Ga...... 90,600 Ash Tree Organization, Inc...... 35,000 Ga. Office of Dispute Resolution ...... 250,000 Athens Justice Project ...... 58,000 GF&C Mentoring ...... 15,000 Atlanta Bar Asylum Project Golden Isles Children’s Center ...... 15,000 (Ga. Asylum & Immig. Net.) ...... 10,000 GreenLaw ...... 75,000 Atlanta Legal Aid Society ...... 840,000 Halcyon Home for Battered Women, Inc...... 10,000 Atlanta Volunteer Lawyers Foundation (AVLF) . .162,400 Hall County Family Treatment Court ...... 18,000 BASICS Program of State Bar of Ga...... 175,000 Hall County Mental Health Court ...... 22,200 Big Brothers Big Sisters NW GA Mountains, Jefferson County SHIPS FOR YOUTH— Forsyth Office ...... 31,800 PROS Project ...... 50,000 Boys & Girls Clubs of Middle Ga. Region ...... 36,000 Justice Served, Inc...... 35,000 Caminar Latino ...... 5,000 Latin American Association, Inc...... 50,000 Catholic Social Services, Detention Project . . . . .45,000 Liberty House of Albany ...... 22,000 Chatham Co. Family Dependency Treatment Ct. . .10,000 Liberty House of Albany ...... 11,200 Chatham County Domestic Relations Initiative . .40,000 Mercer School of Law—Law and Public Cherokee County Sheriff’s Foundation ...... 5,000 Service Program ...... 38,300 Children’s Tree House ...... 20,000 Metro Savannah Baptist Church ...... 8,000 Citizens Against Violence, Inc., dba Safe Haven . .10,000 Muscogee County Juvenile Drug Court ...... 50,000 Civil Pro Bono Family Law Project ...... 100,000 NE Ga. Council on Domestic Violence ...... 45,000 Columbus Alliance for Battered Women ...... 15,000 Nsoromma School, Inc...... 37,800 Columbus Truancy Intervention Project ...... 20,000 Odyssey Family Counseling Center ...... 50,000 Com. Court/Restorative Justice Center ...... 5,000 Our House (Methodist Home Computer Aided Instruction Institute ...... 10,000 for Children campus) ...... 15,000 Diakonia Christian Legal Services ...... 10,000 Paulding County Juvenile Court ...... 8,500 Disability Law and Policy Center of Ga...... 50,000 Pro Bono Project of SBG and GLSP ...... 100,000 Emory Law School—Barton Child Recording for the Blind & Dyslexic Ga. Unit . . . .20,000 Law & Policy Clinic ...... 30,000 Refugee Resettlement and Immigration Exchange Club Family Resource Services of Atlanta ...... 50,000 Center of Rome ...... 22,500 Savannah Family Emergency Shelter (S.A.F.E) . .30,000 Flint Circuit Council on Family Violence ...... 15,000 Southern Center for Human Rights ...... 40,000 Ga. Advocacy Office, Inc...... 25,000 State Bar of Ga. Communications Dept...... 125,000 Ga. App. Practice & Ed. Resource Center . . . . .572,700 State YMCA of Ga., Inc...... 20,000 Ga. Appleseed Center for Law and Justice . . . . .50,000 Supreme Court of Ga. Committee Ga. Association of Black Women Attorneys . . . . .20,000 on Civil Justice ...... 150,000 Ga. Coalition Against Domestic Violence . . . . .150,000 The Extension, Inc...... 20,000 Ga. First Amendment Foundation, Inc...... 12,000 Truancy Intervention Project Georgia ...... 100,000 Ga. Innocence Project ...... 38,000 YLD High School Mock Trial ...... 70,000 Ga. Justice Project ...... 45,000 YLD Juvenile Law Committee ...... 40,000 Ga. Law Center for the Homeless ...... 60,000 TOTALS $6,600,000 Ga. Legal Services Program ...... 2,160,000
48 Georgia Bar Journal the Georgia Bar Foundation in fiscal risk received funding. Jefferson preneurial concept from the chil- year 2006-07 expanded its efforts to County SHIPS for Youth in dren at risk symposia and create an help children who are at risk of get- Louisville received $50,000, and online Internet business via eBay to ting in trouble with the legal sys- Odyssey Family Counseling Center teach finance, entrepreneurial tem. A total of 25 different organi- in the Atlanta area received $50,000. skills, computers and digital pho- zations received $2,591,700. Many A number of programs associat- tography to disadvantaged youth. of these grantees are first time appli- ed with family and drug courts Big Brothers Big Sisters cants who were responding to the received funding including Mus- Northwest Georgia Mountains will Georgia Bar Foundation’s initiative. cogee County Juvenile Drug Court. be using its $31,800 grant award to The Atlanta Volunteer Lawyers They received $50,000 for sub- expand its mentoring program into Foundation (AVLF) under the stance abuse treatment, anger man- Hall and Dawson counties. The dynamic leadership of Marty Ellin agement counseling, individual/ Liberty House of Albany received is well known for its guardian ad family counseling and crisis inter- $11,200 to fund summer camps for litem program, which at the vention. It amounts to a significant children of Liberty House clients. Georgia Bar Foundation’s request rehabilitation program for juve- GF&C Mentoring requested and has now sprouted wings and flown niles with a drug problem. received $15,000 to implement an to several other places in the state. Hall County Family Treatment Ed Menifee-type, children-at-risk Focusing on disputed custody Court was awarded $18,000 to pro- program in the city of Forsyth. cases, this program has become too vide legal representation and coun- This will serve as a model program important and too effective to be in sel to parents eligible for Family to prove the value of involving only a few jurisdictions, and it has Treatment Court. The Paulding children in entrepreneurship. become one of the foundation’s sig- County Juvenile Court received Another implementation of this nature programs. $8,500 to provide emergency assis- idea was funded in Savannah Recently, AVLF expanded its tance to families involved in the through the Metro Savannah efforts to include several programs juvenile justice/family reunifica- Baptist Church. They received to assist children at risk. Managed tion process. Chatham County $8,000 to combine the entrepre- by Dawn Smith, AVLF’s efforts in Family Dependency Treatment neurial teachings of Ed Menifee this new area also received signifi- Court received $10,000 to provide with the leadership of Morris cant support from the Georgia Bar assistance to the children of drug- Brown, one of the most respected Foundation. All together, AVLF addicted parents. public servants in Savannah. received $162,400. Directly responsive to the Savannah’s guardian ad litem Georgia Bar Foundation’s three program, which was inspired by children at risk symposia, several AVLF’s program, received $40,000. organizations applied for and It was begun under the encourage- received grant awards. The ment of Hon. Louisa Abbot, Computer Aided Instruction Superior Court judge in Chatham Institute, based in LaGrange and County and former president of also serving Columbus, received the Georgia Bar Foundation. $10,000 to assist children in foster The Truancy Intervention homes as a result of parental incar- Project guided by Terry Walsh con- ceration. The Nsoromma School is tinues to grow beyond metro using the same model that the Atlanta. Supported by an industri- Georgia Bar Foundation intro- ous right arm named Jessica duced to scores of people in these Pennington and a fresh new grant symposia. In the Atlanta area it of $100,000, Walsh is an undeniable teaches entrepreneurship, motiva- force that opens doors, convinces tion, and job readiness as exempli- doubters and rescues children. fied in the SouthWest Atlanta Judging from the interest the Youth Business Organization creat- Truancy Intervention Project is cre- ed by Ed Menifee. Menifee was the ating statewide, it might not be too moderator at all three symposia, long before people realize that it and he is the director of the belongs everywhere and needs BASICS program, which prepares greater funding than even the prisoners for a responsible life once largest legal foundation in Georgia released from prison. can muster. The Boys and Girls Clubs of Several programs providing Middle Georgia, based in Eastman, counseling and more to children at received $36,000 to take the entre-
December 2007 49 Additional programs designed to support activities for at-risk girls freed prisoners in their adjustment to assist children at risk also were in several places in Georgia. to life after exoneration. funded. The Barton Child Law Ultimately the program is designed The BASICS program has and Policy Clinic at Emory Law to increase self-esteem and encour- become famous for its success in School was awarded a grant of age participation in events incom- preparing prisoners for their return $30,000 to develop a manual for patible with getting into trouble to civilian life. The Georgia Bar judges, attorneys and others try- with the law. Foundation awarded $175,000 to ing to promote and protect the The Georgia Bar Foundation also this award-winning program, well-being of neglected, abused funded several programs seeking which boasts a recidivism rate of and court-involved children. to provide legal assistance to peo- only 16 percent. Under the leader- The Georgia Advocacy Office ple charged with crimes. The ship of Ed Menifee, BASICS is received $25,000 to assist parents Georgia Appellate Practice and offered in 16 of the Georgia and community advocates to Educational Resource Center Department of Corrections diver- obtain educational opportunities received $572,700 to provide sion and transition centers. for children with disabilities. staffing for post-conviction, death The Extension, covering Cobb Several organizations, which in penalty representation for inmates County, received $20,000 to sup- previous years received awards to who have received death sen- port its addiction services in a resi- assist children at risk, continued to tences. This represented a signifi- dential setting for adults. $2,500 receive support: Adopt-A-Role cant increase in support versus last was earmarked for drug testing. Model in Macon ($25,000); Ash Tree year’s $300,400. Hall County Mental Health in Savannah ($35,000); the Exchange The Athens Justice Project Court was awarded $22,200 to pro- Club for the Prevention of Family received $58,000, embracing the vide treatment rather than just pun- Violence in Rome ($22,500); holistic model of Atlanta’s Georgia ishment to defendants whose men- Children’s Tree House in Columbus Justice Project, which also received tal health problems contributed to ($20,000); the Columbus Truancy $45,000. The Georgia Innocence the offenses they committed. Intervention Project ($20,000); Our Project received $38,000 to support Educational programs have House in Columbus ($15,000); and DNA testing of convicted felons always received support from the Golden Isles Children Center in where eyewitness or other mis- Georgia Bar Foundation. The Brunswick ($15,000). takes may have led to a wrongful Georgia Law-Related Education The Georgia Association of Black conviction. A total of $6,000 of Consortium received $90,600 to Women Attorneys received $20,000 those funds will be used to assist continue its programs supporting
Hardest Working Site on the Web. www.gabar.org
50 Georgia Bar Journal legal education programs at the indefatigable leadership of former new leader, Debra Joyner. She will local level. Since 1987 this impor- juvenile judge Sharon Hill, is work- be working under the capable tant program has received more ing with the YLD Juvenile Law direction of Pat Puckett, who has than $1.4 million in IOLTA funds. Committee to rewrite the entire guided DLPC to become a major Is there a more popular program juvenile code of Georgia. force in representing the interests funded by the Georgia Bar Appleseed received $50,000 and of people with disabilities in Foundation than high school mock the committee $40,000. Georgia. DLPC received $50,000 to trial? Once again, this worthy pro- The Georgia Office of Dispute support its Access Project. gram received full funding ($70,000) Resolution received an urgent, The State Bar of Georgia as it prepares to host the National one-time infusion of $250,000 to Communications Department Tournament in 2009 under the capa- lessen the impact of lost state fund- received $125,000 to fund radio ble leadership of Stacy Rieke. ing. Under the talented leadership and television spots to educate citi- The Recording for the Blind and of its new executive director, Shinji zens about the vital role of lawyers Dyslexic Georgia Unit received Morokuma, this organization is and judges in our society. This $20,000 to sponsor the recording of focused on avoiding litigation ongoing effort is a part of the 10 law books for students with while promoting justice for all par- Foundations of Freedom program print disabilities. This program is ties. Established under the creative and has been recognized for the under the steady and effective leadership of former Supreme high quality of its production and leadership of Lenora Martin. Court of Georgia Chief Justice the effectiveness of its message. The State YMCA youth judicial Harold Clarke and Ansley Barton, The Georgia Asylum and program ($20,000) is another popu- the Georgia Office of Dispute Immigration Network received lar program funded by the Georgia Resolution is a vital part of $10,000 to create a website to help Bar Foundation. Participants in this Georgia’s justice system. provide pro bono services to asy- program write briefs and deliver Justice Served received $35,000 lum seekers. oral argument as they learn about to promote the importance of an In the history of the Georgia Bar the judicial system. While this pro- independent judiciary, and the Foundation, never have so many gram demands a great deal of its Restorative Justice Center received worthy organizations received so participants, the rewards to the $5,000 to support developing an much support. Once again, the youth and to our state greatly alternative sentencing program for partnership of bankers and exceed the money awarded. the Municipal Court of Atlanta. lawyers under the direction of the Being Georgia’s expert on any Several organizations that Supreme Court of Georgia has pro- subject is not a trivial accomplish- received support are sometimes duced this record grants meeting to ment. Being that expert at this difficult to categorize. The Civil Pro assist needy citizens throughout point in the history of our state and Bono Family Law Project ($100,000) the state. our nation is demanding and works with several partners to pro- explains why Hollie Manheimer’s vide legal and other assistance to Len Horton is the Georgia First Amendment incarcerated mothers. This year executive director of Foundation again received full they are expanding their support to the Georgia Bar funding at $12,000. Guardian Watch, which seeks to Foundation. He can be A number of organizations prevent domestic violence. Beverly reached at hortonl@ received funding to improve the Iseghohi manages these efforts. bellsouth.net. justice system. One of the most The Disability Law and Policy important initiatives undertaken to Center (DLPC) of Georgia has a improve our civil justice system is spearheaded by the Supreme Court of Georgia’s Committee on Civil Justice. This group received The $150,000 to fund a large portion of a legal needs study for the state of winning edge NLRG Georgia. In addition to the obvious National Legal Research Group support of the Supreme Court of for Georgia CHARLOTTESVILLE, VIRGINIA Georgia, many law firms are Put us to work helping you win today. donating support to make this attorneys 1-800-727-6574 or [email protected] project a success. Coordinating this Fast, Affordable, Specialized law firm support is Charlie Lester since Research, Writing and Analysis of Sutherland Asbill & Brennan. For more information, and to see what your The Georgia Appleseed Center 1969 peers are saying about us: www.nlrg.com for Law and Justice, under the
December 2007 51 GBJ Feature
Fueling the Pipeline: State Bar of Georgia Diversity Program’s 15th Annual CLE and Luncheon by Marian Cover Dockery
aw professors, general counsels, attorneys
and educators who are working to diversify Lthe profession and enhance educational opportunities for at-risk youth convened at the Bar
Center in September to discuss the importance of fuel- ing the pipeline in law schools, firms and corporations with minorities and women and how communications may negatively impact employees in the workplace. Photos by Don Morgan Law School Deans Panel Marian Dockery, Charles Huddleston, vice-chair and partner, Arnall Golden Gregory, present Justice Robert Benham with an appreciation Robin Rone, director of the American Bar gift following his keynote luncheon address compliments of Macy’s, Inc. Association Office of Diversity Initiatives, moderated the first panel, which included Dean Daisy Hurst Floyd Mercer’s BALSA chapter has won national awards for of Mercer University School of Law, Dean Rebecca sponsoring mentoring programs and UGA’s BALSA White of the University of Georgia School of Law, chapter is, according to White, “…the most effective Assistant Dean Katherine Brokaw of Emory Law recruiting device for the school.” These law schools dig School, Dean Richardson Lynn of John Marshall Law deep into the pipeline by whetting the appetites of high School and Dean Steven Kaminshine of Georgia State school students for a career in law. University College of Law. Mercer has a modest pipeline effort where high Despite the national statistics reporting more than a school students meet faculty and law students. GSU 10 percent decline in minorities (African-Americans has joined other organizations to present a new and Hispanics) enrolled in law schools, according to pipeline project, “Justice Benham’s Boot Camp,” a White, Georgia’s law schools have one of the largest three-week program that offers instruction to minor- concentrations of African-American law students in ity high school students who are taught by GSU’s law the country. professors. The objective is to get students excited Mercer, UGA and GSU all rely heavily on their about the law and encourage them to pursue law Black American Law Student Association (BALSA) school in the future. (A full description of the pro- chapters to attract future students. Floyd reported that gram is detailed later in this article.)
52 Georgia Bar Journal Percentages of Minorities and Women scores of applicants. Admitting students with low LSAT scores, at Georgia Law Schools For the Year 2007-08 e.g. the low 140s, hurts the accredi- tation chances of law schools. Law School Percent Percent Percent When the ABA inspects law Minorities African-American Women schools every seven years, num- Emory 40 13 50 bers of minority students in many cases decline. John Marshall, a pro- GSU 25 n/a 50 visional law school and now ABA John Marshall 29.9 18.9 50.8 accredited, has traditionally recruited minorities with lower Mercer+ 17 11 48 scores because the first tier schools UGA+ 22 14.1 46 successfully recruit from the same +Mercer is located in Macon and UGA is located in Athens. limited pool of minorities with the higher LSAT scores. Lynn also stat- ed that law schools must walk a In law schools where early exits Among the challenges the law fine line between satisfying the are not an exception, retaining stu- schools face despite their success in ABA and recruiting a diverse pop- dents is of paramount importance. recruiting diverse student popula- ulation of students. Minority orientation programs, tions are: early mentoring, summer academic Decline of Women Applicants enrichment programs for any stu- ■ Recruiting more minority and Despite the schools’ success dent who may be “at risk,” diversity women faculty recruiting minority students and training for all students and ongoing ■ Creating a more inviting envi- their past success recruiting academic support programs are ronment for minority and women, the majority of the deans among the programs offered by women students on the panel reported an alarming these schools to lower attrition rates ■ Securing funds to create valu- trend—the decline of female appli- of students. To promote retention of able academic assistance pro- cants. Although the percentage of all students, including minorities, grams women at Georgia’s law schools is UGA offers an “Early Start ■ Changing a widely publicized almost half of the total law student Program” to expose students to the ranking system that does not population, these numbers still law school experience and to pro- take into account diversity in reflect a slight decline from previ- vide instruction on writing, briefing the student body (U.S. News & ous years. cases and Constitutional Law. World Report) Mercer took a novel approach by ■ Addressing issues of accredita- Continued Push for Diversity recruiting and enrolling a critical tion by the American Bar Emory will continue to push for mass of five talented Hampton Association (ABA) which pres- diversity through its recruitment University minority graduates. The sure law schools to select stu- fairs, diverse admissions staff and relationship with the school goes dents with higher LSAT scores its Office of Diversity and beyond recruiting Hampton stu- that adversely impact the num- Community Initiatives. dents. Mercer annually funds the ber of minority students An effective diversity program Hampton Deans Scholarship, a full enrolled requires money, and a recent $1 scholarship for one graduate of this million gift to Emory University historically black college. Lynn, who has in the past served School of Law will fund scholar- According to Brokaw, Emory on accreditation teams, reported ships aimed at increasing and sus- Law School has long enjoyed a how the ABA accreditation rules taining diversity at the law school. high percentage of minority enroll- impacted John Marshall’s minority In response to the declining ment. Students come from all over enrollment. According to Lynn, numbers of women applicants, the United States because Atlanta although the number of minority Emory’s Spring 2007 conference is a huge draw. Brokaw also students at his law school “No More Early Exits” created a reported that the percentage of increased, the percentage of forum for female law students, minority enrollment has increased minorities actually declined from practicing attorneys and Emory from 18 percent in 1995 to 40 per- 52 percent (44 percent African- law professors to address the exo- cent in 2007. The traditional 90 per- American) to 46.5 percent (18.9 dus of women from the profession cent bar exam passage rate of percent African-American) since and strategies to preserve the tal- Emory students has actually 2000 because the ABA accredita- ent pool. increased to 96 percent with the tion process includes reviewing the Georgia law schools’ commit- rise in minority enrollment. admission figures, namely LSAT ment to fueling the pipeline pro-
December 2007 53 vides the state’s law firms of the Gate City Bar, with a diverse recruitment reported that less than 7 pool from which to draw percent of law degrees first year associates. The law conferred are to African- school deans emphasized Americans. Further, the that the next step is for the percentage of African- law firms to recruit, hire, Americans enrolled in law develop and retain their tal- school has reached a 13- ent in order to successfully year low. diversify the workforce. Justice Benham, who has worked with law The Solution school students for many Starts Here years, launched this three- week program in coopera- The second panel at the tion with the Gate City Bar, annual diversity CLE pro- Clark Atlanta University gram consisted of State Bar and Georgia State Uni- of Georgia members in pri- versity School of Law, vate practice and an Atlanta Dean Steven Kaminshine, Robin Rone, Dean Daisy Hurst Floyd, Marian which provided space for middle school principal. Cover Dockery, Dean Rebecca White, Dean Richardson Lynn and the camp’s program as These panelists generously Assistant Dean Katherine Brokaw pose after the dean’s roundtable. well as instructors. volunteer their time, talent The program’s curricu- and resources to support the aca- led his students to achieve the lum was intense. Daily classes demic preparation of middle, high highest scores in school history, included “Lawyer for the Day;” school and college students. Glen including two students who critical thinking taught by law Fagan, associate with Constangy, achieved the highest score possi- instructors and trial attorneys; the Brooks & Smith, LLC, and a volun- ble. Socratic method; trial technique; teer with the Truancy Intervention The school’s teaching philoso- and legal research. Every after- Project, moderated. phy is to: noon, students attended more classes, visited courts and law South Atlanta School for ■ Teach students to solve com- firms and spoke with judges, part- Law and Social Justice plex, multi-step problems that ners and public defenders. The Peter McKnight, principal of the require students to draw from third week of the program, law South Atlanta School for Law and multiple disciplines firms hosted paid internships for Social Justice, began his career ■ Use research-based engaging further exposure to a career in law. with Teach for America. McKnight instructional strategies According to Franklin, students said that the mission of his school ■ Hire a dynamic faculty and who completed the program want is to prepare students for college staff to return next year and are excited and to develop leaders for positive ■ Offer themed elective courses about becoming lawyers. change. Students have a core cur- supported by partnerships riculum of math, English, science with local law schools and The Boys & Girls Club and social studies and are instruct- social justice organizations of Metro Atlanta ed in critical reading, logical rea- The Boys & Girls Club College soning, persuasive writing and In the future, McKnight hopes Bound Program of Metro Atlanta is public speaking. Each neighbor- that these theme schools will designed to help participants grad- hood school has at least 100 stu- increase academic performance uate from high school and pursue dents and any student can apply. for all students, promote greater college. Seventy percent of these Although many of these students community involvement and pro- children are “at risk” and more are behind academically, through vide more authentic experiences than 80 percent are minorities. quality instruction, high expecta- for students. According to Brent Wilson, partner tions and relationships with com- at Elarbee, Thompson, Sapp & munity organizations, committed Justice Benham’s Law Camp Wilson and member of the Metro teachers work to accomplish the Justice Robert Benham’s Law Atlanta Board of Directors, the key school’s mission. Before becoming Camp was created in 2007 to to the program’s success is parental principal, McKnight taught geom- address the low percentage of law involvement. The program requires etry, calculus and advanced place- degrees conferred to minority stu- parents to sign a contract where ment (AP) calculus. In his first year dents. Harold Franklin Jr., partner they agree to get their children to teaching AP calculus, McKnight at King & Spalding and president the program on time and bring
54 Georgia Bar Journal them to scheduled interviews. The Members of the State Bar of For example, Macy’s general cus- program also offers mentoring and Georgia who are not committed to a tomer base is located in the most assistance for parents by connecting mentoring program are encouraged diverse major cities in the United them to other resources to help to volunteer and support these pro- States according to Hawthorne. improve their quality of life and grams in any way they can. Likewise, Gaston reported that providing advice on securing finan- Comcast’s operations are located in cial aid for their college-bound stu- Corporate General 20 of the biggest urban areas and its dents. The more than 80 percent Counsel customer base is diversified; and high school graduation rate of par- Lewis of Coca-Cola, the largest dis- ticipants underscores the success of A diverse panel of general coun- tributor of nonalcoholic beverages, this program. sels spoke about their companies’ and a company where 70 percent of commitment to diversity. The its revenues are derived outside of Programs for Future panel included Teri Plummer the United States, said that its cus- Law Students McClure, senior vice president of tomers represent every ethnicity, College students who aspire to compliance, general counsel and nationality and race. Given the attend law school may require extra secretary, UPS; Robin Sangston, diversity of the customers they help to reach that goal. Law school vice-president and general counsel, serve, these companies must be boot camps popping up all over the Cox Communications; Meredith concerned about diversity. country satisfy that need. St. John’s Mays, vice-president and general Policies to hire and retain Pipeline Project in Jamaica, N.Y., counsel, AT&T-Georgia; Douglas diverse employees by tying com- serves college minority and majori- Gaston, senior vice-president, pensation directly to a manager’s ty students of the City University of Comcast Cable; and John Lewis Jr., diversity efforts have proven suc- New York system who are first gen- senior managing counsel-litigation cessful for Coke. According to eration college attendees, financial- of Coca-Cola’s Global Legal Lewis, 20 percent of management ly challenged and have at least a 3.0 Center. William Hawthorne, vice- compensation is impacted by GPA. Professors from St. John’s president of diversity strategies diversity efforts. Lewis quipped, Law School teach students writing, and legal affairs, Macy’s, Inc., mod- “That which gets measured, gets critical thinking, test-taking tech- erated the panel. done.” The results of such policies niques, LSAT preparation and oral Why is diversity critical for these are impressive. In 2003, 18 percent advocacy to prepare them for the corporations? One factor is that the of Coke employees were people of rigors of law school. companies serve diverse customers. color but today, 34 percent are
(Top left) Glenn Fagan, Constangy, Brooks & Smith, moderator of the panel, “The Solution Starts Here” and panelists Harold E. Franklin Jr., partner, King & Spalding, and Peter McKnight, principal of The South Atlanta School for Law & Social Justice listen to Brent Wilson, partner at Elarbee, Thompson Hines & Sapp. (Top right) Charles Forlidas, Bryan Cavan, Katherine Drolett, David Eldridge, Tamika Nordstrom and Luke Curtis are from the firm of Miller & Martin PLLC, which continually supports the Georgia Diversity Program. (Bottom left) John Lewis Jr., Meredith Mays, Robin Sangston, Teri Plummer McClure, Douglas Gaston and William Hawthorne pose after the presentation of the Corporate Initiatives Panel. (Bottom right) John Latham (far right) responds to an audience question as (left to right) Kwame Benjamin, Allegra Lawrence-Hardy and Gerry Williams looks on.
56 Georgia Bar Journal minorities. The company’s minori- ty representation in the manage- N D L ment ranks has also increased from Norwitch Document Laboratory 8.3 percent in 2003 to 21 percent in Forgeries - Handwriting - Alterations - Typewriting 2007. And although a discrimina- Ink Exams - Medical Record Examinations - “Xerox” Forgeries tion lawsuit filed years ago against the company served as a catalyst F. Harley Norwitch - Government Examiner, Retired for change, the continued commit- Court Qualified Scientist - 27 years. Expert testimony given in ment from top management fuels a excess of three hundred times including Federal and Off-shore diverse culture. Pipeline recruitment efforts at 1 17026 Hamlin Boulevard, Loxahatchee, Florida 33470 Cox Communications include the www.questioneddocuments.com hiring of 11 minority summer Telephone: (561) 333-7804 Facsimile: (561) 795-3692 interns in its law department. Sangston reported that three interns secured permanent posi- tions with the company’s outside counsel as a result of Cox’s refer- ral calls and recommendations. During their internships, students met the chief executive officer, vice presidents and human resources; found role models and received valuable mentoring that will benefit them in the future. Companies in the last 10 years have encouraged their outside counsel to diversify. According to Hawthorne, a mere 4 percent of partners working at major law firms are minorities. But the com- panies still expect firms to make the effort and Mays said AT&T-GA will give firms a stern talk if diverse attorneys are not given these opportunities. McClure reported that she sees a lot of “win- dow dressing” but Gaston said the bottom-line is: “Who shows up to handle the lawsuit?” Another important component for corporations’ diversity initia- tives includes working with minor- ity-owned businesses. According to Gaston, Comcast committed a 70 percent increase in spending with these entities, but McClure added that women and minority firms should not expect to automatically get work because they are minority and woman owned, but need to learn the company’s business and build a relationship with in-house counsel. According to Mays, AT&T- GA looks for specific skill sets and expertise from its outside firms. She advised small minority and women owned firms to consider partnering
December 2007 57 with big firms to break into the busi- is a critical component to retaining attorneys. Williams explained that ness. When asked how do minori- new diverse attorneys because the many of their women and minori- ties and women-owned firms get success of those diverse partners ty partners succeed because they work, Mays responded, “It’s a encourages future success for new had pre-existing relationships marathon not a sprint!” associates. with clients when they joined the Initiatives in place to help retain firm, a formula for success. Also, Law Firm Partners minorities at Sutherland include Hunton is not experiencing a high Although Georgia law schools diversity training for the firm’s attrition rate of minorities and are successfully graduating diverse partners, a four-person diversity women, another testament to a lawyers, not all of those attorneys staff and a firm-wide diversity supportive work environment for necessarily wish to stay in Georgia. committee. More importantly, a diverse attorneys. Allegra Lawrence-Hardy, partner partner’s performance regarding In the case of Sutherland, fueling at Sutherland Asbill & Brennan, diversity is a key part of the com- the pipeline has become a major John Latham, partner at Alston & pensation process according to firm initiative. Bird, and Gerry Williams, partner Lawrence-Hardy. To help retain The Sutherland Boot Camp, at Hunton & Williams, were mem- attorneys, every Sutherland lawyer founded by Lawrence-Hardy, pro- bers of this panel. Moderator Kwame Benjamin, senior associate of Seyfarth Shaw opened the panel with the question, “What is the business case for diver- sity?” Lawrence-Hardy responded that Sutherland’s clients are asking for diversity, but that is not the biggest reason. The goal of having the best talent, the best brain power and maximizing the firm’s business development opportunities are among Sutherland’s reasons for diversifying its firm. Latham said his firm is commit- ted to diversity because “it’s sim- ply the right thing to do.” Since the issue of diversity is with the white males and not the diverse partners, Latham stated that it makes good sense for a white male to be in charge of the diversity program. The commitment for diversity Anita Wallace Thomas, Debra Schwartz, Judge Janis Gordon, Julie Seaman, Lisa Chang and Jay must start from the top in any firm Cook pose after their participation on the Communications in the Workplace panel. or company and at all the firms represented at the Diversity has a career plan advisor, a diversi- vides scholarships and instruction Program’s CLE seminar, diversity ty committee mentor and a mentor for students who seek legal educa- is promoted by the managing part- from his/her affinity group. tion. Partners volunteer to teach ner and the executive committee. Recruitment efforts start early at oral advocacy skills, writing skills Components of Alston’s diversi- Sutherland where first-year law and other subjects to prepare stu- ty initiatives include a steering students are targeted for intern- dents for law school. committee comprised of senior ships and, this past summer 28 attorneys and staff, a coordinator, a associates were hired, 10 of whom The Imus Factor: newsletter and a substantial budg- were women or minorities. Communications in et for diversity. Alston’s diverse Historically Hunton & Williams partners are “home grown,” that is hired female lawyers when no the Workplace the firm has successfully recruited other firm in Richmond, Va., The final panel, moderated by and retained women and minori- would do so, and the firm has a Anita Wallace Thomas, member, ties who have advanced to partner- reputation in the legal community Nelson Mullins Riley Scarborough, ship, which is a major achievement. for creating a culture that is con- addressed the issue of communica- Having role models in a major firm ducive to the success of diverse tions in the workplace: what is con-
58 Georgia Bar Journal sidered appropriate and why the the job and anything that causes law still has not changed behavior at embarrassment is off limits. SOUTH work. Answering these questions Through powerful images from were panelists Lisa Chang, employ- the media, our society is bombard- GEORGIA ADR ment discrimination expert and solo ed with racism and sexism, and all practitioner; Judge Janis Gordon, of these “isms” are institutional- SERVICE, LLC DeKalb County Court; Debra ized, powerfully affecting our Schwartz, partner, Thompson, thought patterns. We subcon- MEDIATION and Rollins & Schwartz; Julie Seaman, sciously, or consciously, buy into ARBITRATION of personal assistant professor, Emory School of opinions, ideas and beliefs, no mat- injury, wrongful death, Law; and Jay Cook, partner, Cook, ter how discriminatory or inappro- Noell, Tolley & Bates. priate. Seaman, who teaches a sem- commercial, real estate and Speech is not always illegal, and inar on hate speech, explained how other complex litigation Chang, an expert in employment an “implicit bias test” confirmed cases. Visit our website for discrimination, presented several that regardless of one’s race or sex, fee schedules and unreported court cases where we all unconsciously make certain biographies of our panel, judges ruled on whether a violation biased conclusions. Further, brain comprised of experienced of the law had occurred. Chang research proves that biased speech outlined that courts consider the and inappropriate communica- Middle and South Georgia context, the tone and the historical tions does affect the performance trial lawyers. context in which the defendant’s and behavior of people. comments are made. Chang report- Thomas did not take lightly to a CHARLES R. ADAMS, III – Fort Valley ed that in one 11th Circuit court partner calling her “girlfriend.” THOMAS C. ALEXANDER – Macon case, the plaintiff’s supervisor told Her question for the panel was, MANLEY F. BROWN – Macon her she looked like Dolly and “she “What does one do to discourage JERRY A. BUCHANAN – Columbus would bust out of her blouse.” employees from communicating JOHN D. CAREY – Macon (Henderson v. Waffle House) this way?” An attorney in the audi- WADE H. COLEMAN – Valdosta Although the court did not find sex ence had an even tougher question: JOHN A. DRAUGHON, SR. – Macon discrimination, this was certainly “How do you address inappropri- JAMES L. ELLIOTT – Valdosta offensive and inappropriate speech. ate comments with a colleague BENJAMIN M. GARLAND – Macon And where African-Americans without jeopardizing your career?” ROBERT R. GUNN, II – Macon were called “boy” by their supervi- Cook, immediate past president of JANE M. JORDAN – Macon sors in another case, no violation of the State Bar of Georgia, empha- JEROME L. KAPLAN – Macon the law was found. Thus, offensive sized that although some incidents STANLEY M. KARSMAN – Savannah speech is not always considered are too egregious to overlook and BERT KING – Gray illegal speech, no matter how out- must be litigated, others are not. HUBERT C. LOVEIN, JR. – Macon rageous. However, employees do Cook attributed many insensitive MICHAEL S. MEYER VON BREMEN – Albany often deal with subtle unconscious comments to ignorance. Cook said S. E. (TREY) MOODY, III – Perry comments that are equally offen- the solution is direct communica- PHILIP R. TAYLOR – St. Simons Island sive. Schwartz added that employ- tions with the individual. Consider RONALD C. THOMASON – Macon ees also often contend with subtle who the person is and take steps to CRAIG A. WEBSTER – Tifton nonverbal communications. Giving teach them. Education, training, HON. TOMMY DAY WILCOX, JR. – Macon the Asian associate a back office job patience and learning to be gra- F. BRADFORD WILSON, JR. – Macon “number crunching” or simply cious with others are critical if we being condescending to a peer who are to get beyond this problem. ROBERT R. GUNN, II, is a woman or minority can be just as devastating. Marian Cover MANAGING PARTNER What steps should a manager Dockery is an attorney Rachel D. McDaniel, take when an employee engages in with a background in Scheduling Coordinator inappropriate behavior or uses employment discrimi- 240 THIRD STREET inappropriate speech? Gordan nation and the execu- MACON, GEORGIA 31201 advised not to embarrass the tive director of the (800) 863-9873 or employee, but first to educate them State Bar of Georgia Diversity and give a warning. If an employee Program. For more information on (478) 746-4524 continues the behavior, more seri- the Diversity Program, go to FAX (478) 745-2026 ous disciplinary action should fol- www.gabar.org/programs/ www.southgeorgiaADR.com low. Behavior outside the work- georgia_diversity_program/. place is not always acceptable on
December 2007 59 Bench & Bar
Kudos University of Georgia College of Public Health Board of Advisors. > Michael A. Buda was appointed executive director Stan Blackburn, Susan Cahoon and Mark Levy of human resources and legal affairs at Clayton were named to the Lawdragon 3000 Leading Lawyers State University. He was formerly the executive in America. Blackburn is a partner in the firm’s cor- vice president of human resources, corporate porate department. Cahoon is a partner and Levy is ombuds and corporate counsel at Jackson counsel in the firm’s litigation department. Healthcare Solutions in Alpharetta. As executive The firm also announced that it was ranked 12th director, Buda will serve on the president’s cabinet among the nation’s top law firms for pro bono in the as a senior-level administrator and will provide quality of life category according to Vault, Inc., a leadership and oversight in all functions of the leading media company for career information. department of human resources and legal affairs. In addition, the firm announced it collected more He will also serve as counsel to the president and than 1,200 backpacks filled with school supplies as university administration. a part of their 2007 Backpack Challenge. The back- packs were donated to local schools and non-profit > Douglas D. Selph, a partner with Morris, Manning organizations. & Martin, LLP, was elected to the American College of Real Estate Lawyers. Selph, a former chair of the > Fisher & Phillips LLP Atlanta attor- State Bar’s Real Property Law Section, is a member of ney Rhonda Wilcox was named a Morris, Manning & Martin’s commercial lending, Super Lawyer—Georgia Rising Stars real estate development and finance, and real estate 2007 by Law & Politics magazine. An capital markets groups. associate with the firm, Wilcox prac- tices labor and employment law repre- > Arnall Golden Gregory partner Glenn senting employers. Hendrix is the new vicechair of the sec- The firm also announced the formation of a glob- tion of international law of the al immigration practice, an expansion of the firm’s American Bar Association. Next year he long-standing business immigration practice. The will become chair-elect and will serve as new specialized practice handles immigration and chair of the section in 2009-10. emigration needs for clients ranging from large Hendrix Bob Rothman, a partner in the firm’s multinational corporations to small businesses and Atlanta office, was installed as chair-elect of the individuals. The practice also handles transfers American Bar Association’s section of litigation between countries outside the United States. during the ABA’s annual meeting in San Francisco. He is the first Georgian to hold the position, and > Valdosta trial attorney Roger J. Dodd will automatically become chair of the 75,000-mem- was the featured speaker at the ber section in August 2008. International Academy of Matrimonial In addition, partner Frank N. White helped client Lawyers’ annual meeting in St. ScreamFree Living negotiate a major publishing Petersburg, Russia. Dodd lectured on deal for its innovative new book on parenting— the topic of cross-examining expert wit- ScreamFree Parenting: The Revolutionary Approach to nesses. Audience members hailed from Europe and Raising Your Kids by Keeping Your Cool. 15 other countries, including China, Australia, England, New Zealand, South Africa, and 14 > Kilpatrick Stockton LLP American states. announced that intellectual property partner Ted Davis > Irene Steffas, principal with Steffas & Associates, was elected to serve a one- P.C., was nominated as an Angel in Adoption™ by year term as financial offi- Congressman Tom Price and Sen. Johnny Isakson in cer of the American Bar recognition of her exceptional contributions to Davis Reddy Association’s section of international adoption and children issues. Each intellectual property law. Davis previously served year, the Congressional Coalition on Adoption as a member of the governing council of the section Institute honors the work of people who have and is a fellow of the American Bar Foundation. enriched the lives of foster children and orphans. Shyam Reddy, an attorney in the firm’s corpo- Steffas received the award in October at the annual rate department, was named to the prestigious gala in Washington, D.C.
60 Georgia Bar Journal Bench & Bar
> Morris Hardwick Schneider, one of the largest real securities and regulatory litigation, corporate estate closing law firms in the nation, now offers serv- investigations and corporate governance counsel- ices specifically to assist homebuyers and sellers who ing and disputes. speak Spanish. The firm provides clients with useful information written in Spanish, including closing > Fish & Richardson P.C. was named the top intel- checklists for buyers and sellers, and a Spanish lectual property law firm in the country in brochure that answers frequently asked questions. Corporate Counsel Magazine’s sixth annual survey of “Who Represents America’s Biggest Companies.” > Lance J. LoRusso was designated a Fish & Richardson took the top spot for IP litigation lodge attorney by the Fraternal Order and patent prosecution. of Police (FOP) Kermit Sanders Lodge 13, which covers Cobb County and the > Atlanta sole practitioner Bruce L. Whitmer was surrounding areas. As a lodge attorney, elected chairman of the board and president of the LoRusso will respond to the needs of Atlanta Track Club in September. The Atlanta law enforcement officers, including response to the Track Club may be best known for its conduct of the scene of officer-involved shootings. This new role is Atlanta Journal & Constitution Peachtree Road Race, in addition to his longstanding position as general the world’s largest 10K road race. counsel for the Georgia State Lodge FOP. LoRusso is a partner with the Atlanta law firm of Green, > The Kiwanis Club of Atlanta announced the addi- Johnson and Landers, LLP. tion of Mary Paige Adams to its board of directors. Adams is an attorney with the law firm of Green, > Macon attorney Christopher N. Smith Johnson & Landers, LLP, where she specializes in was awarded the 2007 Governor’s healthcare risk management and medical malprac- International Award for Individual tice defense. Contribution. Georgia Secretary of State Karen Handel presented Smith > Dale Akins, of the Akins Law Firm, LLC, was with a commendation signed by Gov. recently elected to the South Carolina Bar House Sonny Perdue at the Governor’s International of Delegates. He has also been certified as a circuit Awards Black Tie Gala in Atlanta in September. court mediator by the South Carolina Bar following an extensive training program in Columbia, S.C. > Powell Goldstein LLP announced that Henry S. Rogers was named Title Person of the Year by > Baker Donelson responded to the subprime mort- Dixie Land Association, an association made up of gage crisis with the creation of its subprime mort- real estate title insurance professionals from gage task force, a multi-disciplinary practice group Alabama, Georgia and Mississippi. Rogers of attorneys from across Baker Donelson’s five-state received this honor at the Dixie Land Association southeastern U.S. and Washington, D.C., geograph- annual convention in September. ic footprint. Linda S. Finley, a shareholder in the Partner David S. Baker was appointed chairman Atlanta office, is helping to lead the firm-wide effort. of the ABA Standing Committee on Professional Discipline. He has served on this committee since > Hunter Maclean employees lent a helping hand at 2003. Baker’s broad area of practice with Powell the Oatland Island Medieval Festival to help raise Goldstein includes counseling of clients in the areas funds for medical supplies and site improvements of mergers and acquisitions, leveraged buy-outs, for the animal refuge. More than 40 Hunter Maclean joint ventures, asset-based financing, distributor- employees and family members participated. ship arrangements, environmental matters, health Nearly 3,000 visitors attended the event, which will care law and the formation and operation of coop- help the Friends of Oatland Island pay veterinarian eratives. bills, improve animal enclosures, buy medical Thomas R. McNeill was appointed to the com- equipment and build an on-site animal hospital. mittee on corporate laws of the business law section of the ABA. McNeill chairs Powell Goldstein’s busi- > The Prosecuting Attorneys’ Council of Georgia ness & finance practice group and logistics practice. (PAC) was recognized with a 2007 Best of Web and In addition, partner Scott Sorrels was named Digital Government Achievement Award in the national vice-chair for the Venturing Program of digital government achievement category, winning the Boy Scouts of America. Sorrels concentrates in the Government to Government Award for their
December 2007 61 Bench & Bar
work on the Cordele Data Exchange Project. The > Marisa Ugalde Sugarman awards are sponsored by the Center for Digital and Mark Y. Thacker joined Government. Fisher & Phillips LLP as Also, PAC received a grant from Gov. Sonny associates. Both attorneys Perdue’s Office of Highway Safety that will provide focus their practices on the Council with the opportunity to conduct two labor and employment law Sugarman Thacker training courses developed by the American representing management. Prosecutors Research Institute. The firm’s Atlanta office is located at 1500 Resurgens Plaza, 945 E. Paces Ferry Road, Atlanta, > The Augusta regional office of the Georgia Legal GA 30326; 404-231-1400; Fax 404-240-4249; Services Program(GLSP) honored its pro bono www.laborlawyers.com. lawyers and donors during its annual “You Make a Difference” awards luncheon held in October. > Krevolin Horst LLC welcomed three new attorneys Among those honored at the event was local attor- to their firm. Daniel J. Hoppe Jr. engages in com- ney Alice W. Padgett, who was awarded Pro Bono mercial litigation, insurance coverage disputes, Attorney of the Year. Judge Pamela Doumar was intellectual property matters, employment and recognized for her outstanding work as a former labor disputes, real estate litigation, civil matters, board member and past president of GLSP. appellate work and entertainment practice. Hoppe was most recently an associate with Greenberg Traurig, LLP. Hemant M. Piduru joined as an asso- On the Move ciate practicing in the areas of mergers and acquisi- tions, general corporate matters and commercial In Atlanta real estate. Prior to joining Krevolin & Horst, > Gary R. Sheehan Jr. joined Kilpatrick Hemant was an associate at Lord, Bissell & Brook Stockton LLP as counsel. Sheehan is a LLP. Orlando P. Ojeda Jr. is a litigator whose prac- member of the firm’s environmental tice includes a variety of business and commercial team in the litigation department. The litigation. Ojeda previously worked as an associate firm also elected five new members to its with Morris, Manning & Martin, LLP. The firm is Atlanta partnership effective January located at Suite 2150, 100 Colony Square, 1175 2008: John Alden, labor and employment; Candice Peachtree St. NE, Atlanta, GA 30361; 404-888-9700; Decaire, litigation; David Eaton, corporate; and Alex Fax 404-888-9577; www.khlawfirm.com. Fonoroff and Geoffrey Gavin, intellectual property. The firm’s Atlanta office is located at Suite 2800, 1100 > Daniel M. Formby joined Arnall Golden Gregory Peachtree St., Atlanta, GA 30309; 404-815-6500; Fax LLP as of counsel in their health care and life sci- 404-815-6555; www.kilpatrickstockton.com. ences practice. Formby brings over 30 years of legal experience with the Georgia attorney general’s > Powell Goldstein LLP announced that Henry S. office. The firm is located at 171 17th St. NW, Suite Rogers joined its commercial real estate practice as 2100, Atlanta, GA 30363; 404-873-8500; 404-873- a senior title attorney. Rogers’ responsibilities will 8501; www.agg.com. include coordinating and handling title and survey closing matters for the firm’s commercial syndicat- > Harvey R. Linder joined Chaiken ed loan practice. The firm’s Atlanta office is located Klorfein, LLC, as of counsel. Linder, at One Atlantic Center, Fourteenth Floor, 1201 W. previously the general counsel and Peachtree St. NW, Atlanta, GA 30309; 404-572-6600; human resources director of the Marcus Fax 404-572-6999; www.pogolaw.com. Jewish Community Center of Atlanta, and the former vice president, general > Tammi L. Doss joined The Keenan Law counsel and secretary of both SED International, Inc., Firm as an associate. The Keenan Law and LaRoche Industries Inc., will represent clients in Firm represents the needs of catastroph- all business, corporate, transactional, finance and ically injured and deceased children and commercial matters, and employment and labor their families. The firm is located at 148 matters. He will also continue his practice as an arbi- Nassau St., Atlanta, GA 30303; 404-523- trator and certified mediator. The firm is located at 2200; Fax 404-524-1662; www.keenanlawfirm.com. 1140 Hightower Trial, Atlanta, GA 30350; 770-668- 5454; Fax 770-668-1677; www.chaikenklorfein.com.
62 Georgia Bar Journal Bench & Bar
> Locke Lord Bissell & Liddell LLP is the new name In Brunswick of the combination of Texas-based Locke Liddell & > Hunter Maclean announced that Janet Sapp PLLC and Lord Bissell & Brook LLP, a nation- A. Shirley has been named partner in al firm headquartered in Chicago. Locke Lord the firm’s Brunswick office. Shirley con- Bissell & Liddell is a full-service, national law firm centrates her practice in the areas of of approximately 700 attorneys with offices in estate planning and fiduciary law. The Atlanta, Austin, Chicago, Dallas, Houston, London, firm’s Brunswick office is located at Los Angeles, New Orleans, New York, Sacramento Bank of America Plaza, 777 Gloucester St., Suite and Washington, D.C. The firm’s Atlanta office is 305, Brunswick, GA 31520; 912-262-5996; Fax 912- located at The Proscenium, Suite 1900, 1170 279-0586; www.huntermaclean.com. Peachtree St. NE, Atlanta, GA 30309; 404-870-4600; Fax 404-872-5547; www.lockelord.com. In Marietta > Joe Murphey, recently a partner with Crim & > O.V. Brantley joined Henning Bassler, LLP, has formed Murphey’s Law Firm, Mediation and Arbitration Service as a LLC. Though Murphey continues to represent busi- neutral. Brantley recently retired from nesses and individuals in tort and contract litiga- Fulton County after serving two four- tion, the primary focus of his practice is now alter- year terms as county attorney. Henning native dispute resolution. Murphey is a registered Mediation is located at 3350 Riverwood Georgia neutral and is available as a mediator/arbi- Parkway, Suite 75, Atlanta, GA 30339; 770-955-2252; trator through Miles Mediation & Arbitration Fax 770-955-2494; www.henningmediation.com. Services, LLC. The firm is located at 1650 Bill Murdock Road, Marietta, GA 30062; 770-579-2992. > Parker, Hudson, Rainer & Dobbs LLP announced that G. Wayne Hillis Jr. has In Milledgeville been named managing partner of the > Cansino & Petty, LLC, formerly The Cansino Law firm effective January 2008. Hillis is a Firm, LLC, announced the addition of Amanda S. partner on the firm’s litigation team. Petty as a member of the firm. The firm will contin- The firm’s Atlanta office is located at ue to focus in the areas of criminal defense and 285 Peachtree Center Ave., 1500 Marquis Two domestic relations. The firm is located at 203 E. Tower, Atlanta, GA 30303; 404-523-5300; Fax 404- Hancock St., Milledgeville, GA 31061; 478-451-3060; 522-8409; www.phrd.com. Fax 478-451-3073.
> Kilpatrick Stockton LLP and Abrams, Davis, In Savannah Mason & Long LLC announced the formation of a > Hunter Mac- new law firm specializing in the areas of wills, lean announced trusts, estates, family business and tax planning, that Timothy R. charitable giving, and tax-exempt entities. Initially, Walmsley and Abrams, Davis, Mason & Long will consist of the Jennifer Dick existing trusts and estates group at Kilpatrick Sawyer were Walmsley Sawyer Calvert Stockton’s Atlanta office. The four principals in the named partners new firm, Harold Abrams, Kim Davis, Suzanne in the firm’s Savannah office and Liz Calvert Mason, and Mary Balent Long, will be joined by joined the firm’s corporate and tax team. Walmsley their experienced associates, Paige Baker and Laura works primarily in commercial real estate develop- Traylor. The firm is located at Suite 2860, 1100 ment and litigation. He also assists clients on envi- Peachtree St., Atlanta, GA 30309; 404-815-6060; Fax ronmental issues as well as matters associated with 404-815-6090; www.abramsdavis.com. the ad valorem taxation of real and personal prop- erty. Before joining Hunter Maclean, Walmsley In Augusta acted as a sole practitioner in the Walmsley Law > Kilpatrick Stockton LLP elected Brian Epps as a Firm, P.C. Sawyer concentrates her practice in the partner in the litigation department effective areas of commercial real estate, shopping center January 2008. The firm’s Augusta office is located at law, timber law, and business law. An accom- Suite 1400 Wachovia Bank Building, 699 Broad St., plished tax and employee benefits attorney, Augusta, GA 30901; 706-724-2622; Fax 706-722- Calvert has 20 years of corporate law experience. 0219; www.kilpatrickstockton.com. The firm’s Savannah office is located at 200 E. Saint
December 2007 63 Bench & Bar
Julian St., Savannah, GA 31401; 912-236-0261; Fax The Best Lawyers in 912-236-4936; www.huntermaclean.com. America® 2008 > Portman & Raley, LLC, announced that Best Lawyers is the oldest and most respected peer-review Erin Brownfield Raley joined the firm publication in the legal profession. It compiles lists of outstand- as special counsel for the firm’s busi- ing attorneys by conducting exhaustive peer-review surveys in ness litigation practice. Raley is an which thousands of leading lawyers confidentially evaluate their accomplished trial lawyer with over 10 professional peers. In the United States, Best Lawyers publish- years experience in the areas of business es an annual referral guide, The Best Lawyers in America, litigation, transportation law, professional malprac- which includes 29,575 attorneys in 78 specialties, covering all tice defense and pharmaceutical and medical device 50 states and the District of Columbia. The current, 14th edition litigation. Prior to joining Portman & Raley, she was of The Best Lawyers in America (2008), is based on more than a partner at Hunter Maclean. The firm is located at two million detailed evaluations of lawyers by other lawyers.* 31 Montgomery St., Savannah, GA 31401; 912-233- Constangy, Brooks & Smith, LLC Richard R. Cheatham, Atlanta 4175; Fax 912-234-6430; www.ship-law.com. W. Melvin Haas III, Macon Richard Cicchillo Jr., Atlanta In Toccoa Frank B. Schuster, Atlanta A. Stephens Clay IV, Atlanta James H. Coil III, Atlanta > Brian C. Ranck joined Sanders & Smith, P.C., as a Fisher & Phillips LLP A Kimbrough Davis, Atlanta partner. His practice areas include land use, real Donald B. Harden, Atlanta Theodore H. Davis Jr., Atlanta estate, litigation, collections, creditor bankruptcy, C.L. “Tex” McIver, Atlanta Scott M. Dayan, Atlanta probate and local government law. Ranck also Ann Margaret Pointer, Atlanta William E. Dorris, Atlanta serves as the county attorney for Stephens County. Roger K. Quillen, Atlanta James L. Ewing IV, Atlanta The firm is located at 311 S. Big A Road, Toccoa, John E. Thompson, Atlanta Candace L. Fowler, Atlanta GA 30577; 706-886-7533; Fax 706-886-0617; Peter B. Glass, Atlanta www.sanderssmith.com. Hunton & Williams LLP Jamie L. Greene, Atlanta In Chattanooga, Tenn. L. Traywick Duffie, Atlanta Randall F. Hafer, Atlanta James A. Harvey, Atlanta Richard A. Horder, Atlanta > Joseph G. DeGaetano joined the Law Robert E. Hogfoss, Atlanta Hilary P. Jordan, Atlanta Offices of Morgan Adams, a multi- Catherine D. Little, Atlanta M. Andrew Kauss, Atlanta lawyer firm that concentrates its prac- James E. Meadows, Atlanta Wycliffe A. Knox Jr., Augusta tice on cases involving wrongful death William M. Ragland Jr., Atlanta Larry D. Ledbetter, Atlanta and serious personal injuries, as well as Caryl Greenberg Smith, Atlanta Colvin T. Leonard III, Atlanta dangerous premises, defective prod- C. L. Wagner Jr., Atlanta Alfred S. Lurey, Atlanta ucts, and egregious instances of medical malprac- Dennis S. Meir, Atlanta tice. Before joining the Adams firm, DeGaetano Kilpatrick Stockton LLP Matthew H. Patton, Atlanta worked as a personal injury and commercial litiga- Harold E. Abrams, Atlanta John S. Pratt, Atlanta tor with Boult, Cummings, Conners & Berry in Miles J. Alexander, Atlanta Diane L. Prucino, Atlanta Nashville and Chattanooga. The firm is located at Rupert M. Barkoff, Atlanta Susan H. Richardson, Atlanta The Adams Building, 1419 Market St., Chattanooga, Joseph M. Beck, Atlanta Dean W. Russell, Atlanta TN 37402; 423-933-1060; Fax 423-265-2025; Thomas J. Biafore, Atlanta George Anthony Smith, Atlanta www.chattanoogainjurylaw.com. W. Stanley Blackburn, Atlanta James D. Steinberg, Atlanta In Munich, Germany William H. Boice, Atlanta David A. Stockton, Atlanta Richard R. Boisseau, Atlanta Mitchell G. Stockwell, Atlanta > Fish & Richardson P.C. opened its first office out- R. Alexander Bransford Jr., Atlanta Phillip H. Street, Atlanta side of the United States in Munich in October. The William H. Brewster, Atlanta Jerre B. Swann, Atlanta office opened with five professionals, including two Christopher P. Bussert, Atlanta G. Kimbrough Taylor Jr., Atlanta partners from the Bardehle Pagenberg firm, with Susan A. Cahoon, Atlanta Virginia S. Taylor, Atlanta plans to grow to 12 professionals by the end of 2008. Tim Carssow, Atlanta Rex R. Veal, Atlanta The firm’s Munich office is located at Regus Raymond G. Chadwick Jr., Augusta David M. Zacks, Atlanta Business Center, Landsberger Straße 155, Munich 80687 Germany; +49 (89) 57959 105; Fax +49 (89) *This is not a complete list of all State Bar of Georgia members included 57959 200; www.fr.com. in the publication. The information was complied from Bench & Bar sub- missions from the law firms above for the December Georgia Bar Journal.
64 Georgia Bar Journal Which is the best choice? We’ll give you a hint. It’s A.
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Attorneys Are More Than Witnesses in Real Estate Transactions
by Paula Fredrick
“ ey Boss,” your paralegal calls as she enters “That depends,” you respond. “I’ve heard some inexperienced lawyers say that all they do is notarize your office. “I won’t need Thursday after- the signatures. They don’t even check the documents to be sure the numbers add up!” noon off after all. My lender called and The Supreme Court of Georgia has confirmed that H the execution of a deed of conveyance is the practice of says they can do the paperwork on the refinance law, as is the preparation of a document that serves to secure a legal right. (UPL Advisory Opinion 2003-2, Saturday. They are sending someone to my house!” 277 Ga. 472 (2003)). The ethical obligations for a lawyer who handles real estate transactions in Georgia don’t “Whoa!” you exclaim. “You’d better be sure you’re change whether the transaction takes place in a board- dealing with a real lawyer. That sounds like one of room or in a minivan. those ‘witness only’ setups, and you know that non- At a minimum, the Bar Rules require that the lawyer lawyers can’t close real estate transactions in Georgia.” be competent to handle the matter. That means the “I got the name of the lawyer, and I’ve already lawyer should have a basic understanding of the area checked him out with the Bar,” your paralegal replies. of law and should review the documents to ensure that “He’s licensed and in good standing, so I ought to be they were properly drawn. okay, right?” The lawyer must control the conveyance by being physically present during the transaction, and may not delegate responsibility for the closing to a nonlawyer. The obligations outlined in Part IV of the Bar Rules also mean that the lawyer owes a duty of fairness to all of the parties to a transaction. The lawyer must be able to exercise independent professional judgment and render candid advice when warranted. Of course, when something goes wrong with a real estate transaction the lawyer may be accused of ethical misconduct or malpractice. A lawyer cannot escape lia- bility simply by claiming that he acted only as a wit- ness, not as an attorney in the transaction.
Paula Fredrick is the deputy general counsel for the State Bar of Georgia and can be reached at [email protected].
66 Georgia Bar Journal Running a law fi rm is diffi cult enough without having to explain it to your banker. We know how complicated running a law fi rm can be. In fact, our Legal Specialty Group has spent nearly two decades specializing in the fi nancial needs of legal professionals and fi rms. Your personal and professional fi nances are unique, and we understand that. That’s why we offer insightful, custom-tailored solutions so you can focus on what matters most to you. To schedule a consultation, contact a Client Advisor below.
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Discipline Summaries (Aug. 23 through Oct. 19, 2007)
by Connie P. Henry
Disbarments ry of the affected properties. Turner did not, however, Curtis Glen Shoemaker make restitution to his clients. In aggravation of disci- Danielsville, Ga. pline the Court found that Turner had multiple offenses Admitted to Bar in 1987 and showed indifference to making restitution. On Sept. 24, 2007, the Supreme Court of Georgia dis- barred Attorney Curtis Glen Shoemaker (State Bar No. Andrew James McKenna 643755). The following facts are deemed admitted by Averill Park, N.Y. his default: In Febraury 2006, Shoemaker issued four Admitted to Bar in 1998 checks from his escrow account that were returned for On Sept. 24, 2007, the Supreme Court of Georgia dis- insufficient funds. He refused to respond to the State barred Attorney Andrew James McKenna (State Bar Bar’s inquiry regarding the insufficient funds notices. No. 494425). The following facts are deemed admitted Additionally, in March 2006, Shoemaker was retained by his default: In September 2002, while employed by to represent a client in civil litigation and was paid a the U.S. Department of Justice, McKenna assisted the retainer fee of $1,750. Shoemaker failed to do any work Drug Enforcement Administration (DEA) in a narcotics on the matter, closed his office, failed to communicate investigation. Numerous search and arrest warrants with the client, failed to return the client’s file, and were executed at several private residences and busi- failed to refund any of the retainer fee. Shoemaker has nesses throughout Houston, Texas. Among the items a prior disciplinary record, including a two-year sus- seized by law enforcement was a Rolex watch and pension and a public reprimand. approximately $35,300. McKenna left the DEA office with a Rolex watch and $3,500 of seized currency. After Terrill Andrew Turner meeting with a DEA special agent regarding the miss- Atlanta, Ga. ing watch and currency, McKenna gave the watch to Admitted to Bar in 1980 the agent but did not produce the currency. McKenna On Sept. 24, 2007, the Supreme Court of Georgia dis- also submitted numerous travel vouchers with false barred Attorney Terrill Andrew Turner (State Bar No. statements and information to the U.S. government 719867). The following facts are deemed admitted by his between January and August 2002, made unauthorized default: Three individuals and three companies hired charges totaling at least $1,715 with a government Turner to represent them in their business of purchasing issued credit card, and made numerous false state- tax liens. Turner received redemption payments from ments to government agents who were investigating parties with an interest in the properties but failed to his conduct. In aggravation of discipline the Court notify his clients and failed to remit the funds to his found that McKenna demonstrated a selfish motive in clients or deposit them in his attorney trust account. converting property of the U.S. government for his per- Instead, he diverted over $700,000 of redemption pay- sonal use and that he engaged in a pattern of miscon- ments to himself and at times issued quitclaim deeds to duct in so doing. the property owners, signing them as vice president of one of his corporate clients even though he was not an Stevens J. White officer of the company. He also occasionally forged the Baton Rouge, La. signature of a corporate officer of his corporate clients Admitted to Bar in 1973 on the deeds. When his clients confronted him Turner On Oct. 9, 2007, the Supreme Court of Georgia dis- admitted his misconduct and later provided an invento- barred Attorney Stevens J. White (State Bar No.
68 Georgia Bar Journal 754850). The Supreme Court of fee. Thomas rarely responded to unbefitting of any member of the Louisiana accepted White’s peti- the client’s inquiries. After learning Bar. On numerous occasions, the tion for “Voluntary Permanent that Thomas had not filed the peti- Court personally witnessed Resignation from the Practice of tion, the client fired Thomas and Rolleston’s recalcitrant behavior, Law” in March 2004. In the peti- asked him to return her file and fee, including his open disrespect tion, White stated that he recog- both of which he failed to do. towards the judiciary and the laws nized that there existed grounds Thomas did not respond to the of Georgia and disregard for the for discipline against him for viola- notice of investigation. ethical standards imposed upon tions of several rules of the In another matter a client hired members of the Bar. Louisiana Rules of Professional Thomas to represent him in an Conduct and he agreed to never attempt to modify the conditions of Coatsey Ellison again practice law in Louisiana or a bond. Thomas met the client in a Jonesboro, Ga. in any other jurisdiction. The Court restaurant and took $1,000 toward Admitted to Bar in 1988 found that White did not meet the his $2,500 fee. The client never On Oct. 9, 2007, the Supreme requirements for the imposition of heard from Thomas again. Court of Georgia disbarred a lesser discipline in Georgia. The court found in aggravation Attorney Coatsey Ellison (State of discipline Thomas’ failure to Bar No. 246120). A client hired D. Daniel Kleckley respond to disciplinary authorities, Ellison to represent her in a modi- Duluth, Ga. his indifference to making restitu- fication of child custody action in Admitted to Bar in 1967 tion to his clients; a pattern of mis- February 2002. Ellison received On Oct. 9, 2007, the Supreme conduct; and that Thomas was not discovery requests but failed to tell Court of Georgia disbarred in good standing with the Bar for the client. On Sept. 26, 2002, the Attorney D. Daniel Kleckley (State failure to pay his Bar dues and fail- client received a letter from Ellison Bar No. 425000). Kleckley failed to ure to complete his continuing stating that it was his third request respond to notices of discipline. legal education requirement. for her to complete discovery and The following facts are deemed that he would withdraw if she did admitted by default: Three sepa- Moreton Rolleston Jr. not respond that day. The client rate clients retained Kleckley to Atlanta, Ga. completed discovery, but Ellison represent them in civil matters. Admitted to Bar in 1941 did not serve it until Oct. 31, 2002. Kleckley received retainer fees; On Oct. 9, 2007, the Supreme The case was tried in April 2003. however, he failed to file the Court of Georgia disbarred Ellison told his client that he filed a actions (although in one instance Attorney Moreton Rolleston Jr. brief, although he did not do so. he represented to the client that he (State Bar No. 613700). Over the The court ruled against the client. had) and failed to return the past 10 years Rolleston continuous- Ellison said he told her he filed a clients’ papers and fees. One client ly filed on his behalf and on behalf notice of appeal in June 2003, but obtained a judgment against of the Morton Rolleston, Jr., Living his client said she did not know the Kleckley and he failed to pay the Trust, actions arising out of a judg- court ruled against her until she judgment. In two of the cases ment entered against him in a legal went to the courthouse in October Kleckley failed to respond to the malpractice and fraud action in 2003. Ellison did not return his notices of investigation. The Court 1995 and the judgment creditors’ client’s calls and she fired him in found that Kleckley’s actions efforts to collect on that judgment. October 2003. The client believed demonstrated a pattern of miscon- The Superior Courts in Fulton and Ellison had perfected her appeal as duct and disregard for the discipli- Cobb County entered Bills of Peace she paid the costs of transmitting nary process. and Perpetual Injunctions restrain- the record but he had taken no ing Rolleston from asserting fur- action. The Court of Appeals dis- Franklin Whitaker Thomas ther claims in this matter and the missed her appeal in January 2004. Atlanta, Ga. Supreme Court imposed frivolous In another case Ellison filed a Admitted to Bar in 1999 appeal penalties against him. Chapter 7 bankruptcy case on On Oct. 9, 2007, the Supreme Although Rolleston was person- behalf of his clients on May 30, Court of Georgia disbarred ally served with a Notice of 2003. When the U.S. Trustee moved Attorney Franklin Whitaker Discipline, he did not provide a to dismiss the case, Ellison filed a Thomas (State Bar No. 704899). The properly sworn response, nor did motion to convert it to a Chapter 13 following facts are deemed admit- he provide an explanation of his and forged his clients’ names on ted by default: A client hired conduct. The Court found that the verification, notarized the Thomas to represent her in a child Rolleston showed no remorse for forged signatures and attested to support modification case. Thomas his actions and continuously their authenticity. Ellison filed a met the client in a restaurant and plagued the judicial system with Chapter 13 but the U.S. Trustee accepted $750 toward his $1,500 untenable claims for purposes objected and Ellison moved to re-
December 2007 69 convert the case back to a Chapter conduct and the vulnerability of tions for reinstatement. Morales 7, again forging the clients’ names his victims. was the plaintiff in a personal without authorization. The clients injury action and was represented became so frustrated by their Paul Walter David by counsel. After judgment was inability to reach Ellison that they Augusta, Ga. entered, Morales’s lawyer moved informed the U.S. Trustee that Admitted to Bar in 1993 to enforce the attorney’s lien Ellison had forged their signatures. On Oct. 9, 2007, the Supreme against the damages awarded. The clients retained other counsel. Court of Georgia disbarred Morales disputed the lien and The Bankruptcy Court suspended Attorney Paul Walter David (State moved to disqualify the trial judge, Ellison from filing any new cases Bar No. 206501). This disciplinary which motion was denied. The for 180 days. matter encompasses 15 separate Court of Appeals denied his appli- In a third case, a client hired disciplinary offenses. In 10 of the cation for interlocutory appeal, and Ellison on Sept. 14, 1999, to repre- cases David accepted the appoint- both the Supreme Court of Georgia sent her son in a medical malprac- ments to represent criminal and the Supreme Court of the tice case. The client moved several defense clients but did little or no United States denied certiorari. times, but always advised Ellison work on their cases. In many of the Morales filed a civil rights action in of her current address. He did not cases, he missed filing deadlines. In the United States District Court for contact her during 2000 and others, he filed notices of appeal the Northern District of Georgia, although she traveled from Florida but failed to notify the client of the naming as defendants his former to meet with him, Ellison did not resolution of their appeal. In some, lawyers, the trial judge, a member keep the appointment. In June he refused or failed to respond to of the judge’s staff, the clerk, 2001, Ellison filed the action inquiries from the client or their deputy clerk and assistant clerk of against the hospital and the doctor families and in others he failed to the Court of Appeals, and the but in August dismissed against even notify the client of his judges on the panel that ruled on the hospital without permission. appointment. David abandoned his application for appeal. Morales Ellison did not serve the doctor three clients in civil matters as well. alleged a conspiracy to deprive until Dec. 20, 2002. In January On Aug. 26, 2004, David entered him of his property. After a griev- 2003, Ellison discovered that the a guilty plea in the Superior Court ance was filed with the State Bar, doctor’s insurance carrier became of Richmond County to felony tax Morales voluntarily dismissed the insolvent and sent a Proof of Claim evasion and the Court sentenced federal action. to the liquidator without inform- him as a first offender to five years The Court concluded that the ing the client and which Ellison probation, plus fees, community federal action was unwarranted apparently forged. The liquidator service and restitution of $6,248. and was without a good faith denied coverage but Ellison did The court found in aggravation exception because Morales should not inform his client. Ellison dis- of discipline multiple offenses know that judges acting within missed her lawsuit without preju- showing an extensive pattern of their judicial capacity are immune dice. The insurance carrier valued misconduct and neglect over a from suit for money damages. His the client’s claim at $0 based on the course of years, and a prior discipli- claims of conspiracy by the Court dismissal of the lawsuit and the nary record. In further aggravation of Appeals judges amount to false third party claims administrator the Court noted that most of the statements that the judges did not wrote Ellison and told him that underlying grievances involved tell the truth simply because they coverage was denied because the indigent criminal defendants who ruled against him. statute of limitations had expired. suffered needless worry and con- Morales is suspended for a peri- Ellison did not inform his client cern. In mitigation of discipline the od of not less than one year. He about the denial of her claim but in court found that David lacked a must submit to physical and men- April 2005 he told her she could selfish motive, that his conduct may tal examinations by licensed and not recover any damages. Ellison have been caused in part by psy- board-certified physicians, the failed to provide the client with a chological and personal problems, results of which must be submitted copy of her file and did not and that he expressed remorse. to the Office of the General Counsel respond to her telephone calls. and the Lawyer Assistance The Court noted in aggravation Suspensions Program (LAP). Morales must of discipline that Ellison had a Juan Lopez Morales begin any recommended treatment prior disciplinary record; that he Lilburn, Ga. and agree that, after resuming the had a pattern of misconduct; that Admitted to Bar in 2003 practice of law, he will continue he submitted false statements dur- On Sept. 24, 2007, the Supreme treatment with a mental health pro- ing the disciplinary proceedings; Court of Georgia suspended Juan fessional, who will report his con- and that he refused to acknowl- Lopez Morales (State Bar No. dition to the LAP until the profes- edge the wrongful nature of his 521531) indefinitely with condi- sional and the LAP agree that he no
70 Georgia Bar Journal longer needs professional consulta- was given first offender treatment dent until the Fall of 2003 when tion. Upon obtaining certification and sentenced to five years on pro- she began suffering from health that he has submitted to the exam- bation. The Court found that Lewis issues leading to laser surgery on inations and has begun treatment if has been a member of the Bar in both eyes, various hospitalizations necessary, Morales may petition good standing for over 20 years; and the ultimate amputation of her the Review Panel for review and that he had no prior discipline and right foot and lower leg in the fall recommendation as to whether the no criminal record; that his con- of 2004. It appears that her failure Court should lift the suspension. duct did not relate directly to his to communicate with (and appar- work for his clients; and that it did ent abandonment of) her clients Shannon Camille Johnson not involve dishonesty. Lewis has directly coincided with her health Orlando, Fla. been suspended from practicing problems. In mitigation of disci- Admitted to Bar in 2001 law since Jan. 5, 2007, as a result of pline the Court found that Evans On Sept. 24, 2007, the Supreme a condition of his guilty plea. had no prior discipline record; she Court of Georgia suspended Prior to reinstatement Lewis was cooperative the State Bar; was Shannon Camille Johnson (State must obtain certification from the remorseful about the frustration Bar No. 395440) for a period of two director of the LAP that he success- and inconvenience she caused her years. In an amended petition for fully completed the program. clients; that she did not intention- voluntary discipline, Johnson Upon such certification, Lewis may ally mean to cause her clients admitted that she violated Rules petition the Review Panel for harm; and that she agreed to reim- 1.3 and 1.4 in her handling of legal review and recommendation as to burse the fees paid to her in one matters undertaken for three dif- whether the Court should lift the case at a rate of $150 per month ferent clients and requested a two- suspension. Justices Hunstein and until paid in full. year suspension. Between August Thompson dissented from the 2003 and December 2005 Johnson order. Interim Suspensions agreed to represent three separate Under State Bar Disciplinary clients. She either failed to do any Review Panel Rule 4-204.3(d), a lawyer who substantive work on their legal Reprimand receives a Notice of Investigation matters or failed to complete the and fails to file an adequate work. She also failed to adequately Arleen Evans response with the Investigative communicate with the clients and Warrenton, Ga. Panel may be suspended from the as a result, each of the clients suf- Admitted to Bar in 1985 practice of law until an adequate fered some form of harm, ranging On Sept. 25, 2007, the Supreme response is filed. Since Aug. 23, from needless worry to a lost cause Court of Georgia accepted the peti- 2007, one lawyer has been sus- of action. Johnson has subsequent- tion for voluntary discipline of pended for violating this Rule, and ly closed her practice and relocated Arleen Evans (State Bar No. none have been reinstated. to Florida. In aggravation of disci- 283960) and ordered that she be pline the Court found that Johnson administered a Review Panel rep- Connie P. Henry is has a prior history of discipline, a rimand. Evans admitted that she the clerk of the State pattern of misconduct, and multi- violated Rules 1.3 and 1.4 in three Disciplinary Board and ple offenses. In mitigation, Johnson matters and that she violated Rule can be reached at cooperated with the State Bar, had 1.16 in one matter. Evans repre- [email protected]. no dishonest or selfish motive, and sented three separate clients in is remorseful for inconvenience she civil matters without major inci- may have caused her clients. Justices Hunstein and Melton dis- sented from the order.
John M.B. Lewis IV Augusta, Ga. Admitted to Bar in 1986 On Oct. 9, 2007, the Supreme Court of Georgia suspended Attorney John M.B. Lewis IV (State Bar No. 450890) for 24 months with conditions for reinstatement. Lewis pled guilty to one count of posses- sion of cocaine in the Superior Court of Richmond County. Lewis
December 2007 71 Law Practice Management
Five Steps to Effectively Coach and Manage Your Support Team
by Natalie Kelly
fficient associates and a productive support
staff are cornerstones of a successful law E practice. Firms that lag behind in focusing on associate and staff development or allow problems to persist without any meaningful form of intervention or solution often find that their businesses are not thriv- ing. All indicators suggest that there is a direct correla- tion between staff development and firm success.
To ensure success in your firm, follow these five basic steps for coaching and managing staff and associates. Start With Yourself Begin by looking in the mirror. It all starts with you—the firm. Your firm’s mission statement should be the focus of what you wish to attain with associates and staff. Keep a copy of the mission statement readily visible and make sure your staff and associates under- stand it and, where applicable, follow it. A copy of the mission statement should be included in the policies area and developing a substantial client base in that area, and procedures manual. it will be important to share this vision with associates Integrating support staff into the firm can be difficult. coming into the practice. It is equally important that you It is important to have incoming and existing support share this vision with your paralegals, legal assistants personnel understand your firm’s needs and goals. For and even the receptionist, as they will likely have fre- instance, if the firm’s focus is marketing to a new practice quent contact with the client base and potential clients.
72 Georgia Bar Journal Ultimately, your staff’s integration Develop written objectives and These steps are very basic, but into your practice begins with their measurable requirements for your their implementation can lead to understanding of your practice. staff. Where deficiencies exist, more successful and productive remember that staff training can use of support resources. Our Follow Up First directly benefit the firm’s bottom department provides the following Many firms perform evaluations line. You can also develop loyalty additional resources for you, your of varying sorts for their staff and as you equip staff with the skills associates and support staff. associates. For instance, annual per- they need to do their jobs. formance reviews for associates and Books/CDs/Videos staff are highly recommended. Train Your Trainers ■ ABA Guide to Professional While this practice is a critical step Adequately training the folks Managers in the Law Office— in the training and development who will impact the direction of ABA exposition on the need for process, ensuring that you follow up those being trained, is another way and emergence of professional on these sessions is equally critical. to successfully coach your support managers in the modern law Always schedule meetings to team. You should make sure the office follow up on evaluations. Staff can information presented is consis- ■ Altman Weil Pensa Archive on learn that they need to improve in tently and in line with the firm’s Human Resources Management certain areas, and associates are needs and wants. for Law Firms and Corporate Law introduced to appropriate tools For staff development, make Departments, The—collection of and methodology for dealing with sure that you provide manage- articles focusing on human firm business. Pay attention to ment-level staff, such as adminis- resources and personnel man- what works, what does not work trators, with what they need to agement in the law firm and why. Use this information for evaluate and follow up on your ■ Complete Do-It-Yourself effective management and staff training program goals and Personnel Department, The—a development. requirements. You should also personnel kit for establishing have the managing partner or the basic personnel function in Create a Realistic training partners working from the a business through model Training Program same playbook as it relates to train- forms, checklists and sample ing associates. manuals When you create a training pro- ■ Complete Personnel Administration gram, you do not need to start from Mentor and Counsel Handbook for Law Firms—pro- scratch; sample resources available Beyond the Training vides the resources for keeping from our department are listed at up-to-date with changing laws the end of this article. Program and emerging trends in person- Using your existing policies and Often the only feedback that is nel administration procedures manual as a frame- given to support teams is negative. ■ From Law School to Law Practice: work, draft a program that keeps When certain things go wrong or The New Associate’s Guide (2nd your current needs in mind and results are unexpected, you can Edition)—includes coverage of that can transition into the future. learn from these experiences. Work what the expectations are for a Some areas to consider are technol- with support staff and associates to new attorney in a corporate ogy usage, practice area support gain direction from what did not legal department (associate performance and staffing work and also share what did work ■ Handling Personnel Issues in the needs), revenue generation, client as you deal with client matters and Law Office: Your Legal development and client retention. other office experiences. Responsibilities as an Employer— For training associates, you Formal mentoring programs, guide book for law firm man- should develop a checklist that like the State Bar’s Transition into agement with an overview of serves as a roadmap for their initial Law Practice Program, will out- laws governing employment experiences with your firm. While line steps for working on relation- relationships and tips for carry- one way to discern if an associate is ships between firm leadership ing out an employer’s legal a good fit may be how well he or and support staff. It is important responsibilities she navigates your practice, a gen- that a continuing dialogue and ■ Keeping Good Lawyers: Best eral roadmap ensures that the asso- action plan are in place going for- Practices to Create Career ciate’s journey does not create a ward with developing associates Satisfaction—how to maximize serious disaster for the firm. A use- and staff. You can refer to your your top legal talent, includ- ful associate training program ben- firm’s strategic and long range ing how to approach retrain- efits associates by helping them plans for guidance with any men- ing your experienced attor- reach the goal of becoming senior toring or counseling you will neys and an associate devel- associates or partners. need to do. opment plan
December 2007 73
■ Law Firm Associate’s Guide to hands-on workbook is an invalu- Sample Forms Personal Marketing and Selling able tool for lawyers at all stages ■ Associate Employment Skills, The—the first volume in of their professional life, from Agreement ABA’s new groundbreaking law students to high-level profes- ■ Buy-Sell Agreement Law Firm Associates sionals transitioning careers ■ Employment Agreement— Development Series, created to ■ Leveraging with Legal Assistants Employee and Partnership teach important skills that —learn how to use your para- Employer associates and other lawyers professionals to the firm’s ■ Associate Feedback: Assignments need to succeed at their firms, financial advantage ■ Associate Marketing but that they may have not ■ Managing Partner 101, A Guide Evaluation Form learned in law school to Successful Law Firm ■ Manager’s Self Audit ■ Law Office Policy & Procedures Leadership, 2nd Edition—a vol- ■ New Employee Checklist Manual—complete, customized ume that articulates a series of ■ Staff Feedback Regarding staff manual that can serve as a concepts and philosophies for a Assigned Tasks training tool for new employ- successful law firm ■ Staff Management Self-Audit ees, associate lawyers and staff, ■ On Training Associates—how to to advise them of procedures, develop in-house associate If you need any other assistance that explains how a law office training and professional with this very important area of operates development programs for practice management, please give ■ Law Office Procedures Manual for your firm us a call. Solos and Small Firms, 2nd ■ Your New Lawyer—a guide to Edition—a resource for firm recruitment, development, and Natalie Thornwell lawyers and staff, to advise management of attorneys; con- Kelly is the director of them of procedures, expecta- siders ways to maximize their the State Bar of tions, protocols and other performance after hire Georgia’s Law Practice information that explains how ■ Are You Listening? (CD) Management Program a law office operates ■ Evaluating Associates for Growth and can be reached at ■ Lawyer’s Guide to Networking— and Profit (Video/CD) [email protected]. Professional Receptionist Services and On-Demand Officing
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December 2007 75 South Georgia Office
Successful and Thriving Programs in Tifton
by Bonne Cella
he Transition Into Law Practice Program
(TILPP), which replaced “Bridge the Gap,” is T a resounding success! Other bar associations in the United States, Canada and even China are making inquiries on how to replicate this mentoring program to benefit their new bar members. Douglas Ashworth, director of the program, recently shared this good news
with the Tifton Judicial Circuit Bar while presenting a Photos by Bonne Cella The YLD High School Mock Trial Committee met in Atlanta as their South and Central Georgia committee members convened at the one-hour professionalism CLE on mentoring. State Bar Office in Tifton. Committee members enjoyed time together as they waited for the video conference to begin. Jennifer Dorminey, the youngest member of the Tifton Judicial Circuit Bar, recently completed the men- the close of the program, seasoned bar member toring program and acknowledged how valuable it Tommy Pittman quipped, “Now all we need is a had been for her. Bar members then enjoyed hearing Transition Out of Law Practice Program!” about how it was in the “old days” before CCLC, from Ashworth is available to speak to your local bar their oldest bar member, Gerald (Gerry) Kunes. association about TILPP. If needed, the South Georgia Admitted in 1949, Kunes reminisced about his days office can facilitate the event and contact your local bar conferring with Anthony Alaimo, Gus Cleveland and association members. Please contact the office for more other notables as they mentored one another. information. Ashworth said that experienced attorneys all over the state have volunteered to be mentors and that there Mock Trial Training has not been a shortage of these counselors even with After the excitement of winning the 2007 National approximately 900 new Georgia lawyers each year. At Mock Trial Championship, the YLD High School
76 Georgia Bar Journal Peggy Caldwell, Assistant Mock Trial coordinator, who addressed “Understanding the Power-Match System.” Additionally, the High School Mock Trial Committee now offers an original video, “May It Please the Court,” featuring interviews with students, teachers and attor- ney coaches. This video, along with a valuable resource booklet, is available to help your local High School Mock Trial team and may be ordered from the State Bar of Georgia for $25. Visit www.geor giamocktrial.org for more infor- mation. The South Georgia office is avail- Douglas Ashworth, director of TILPP; Jennifer Dorminey, Tifton Judicial Bar’s youngest member able to facilitate your meetings and and newly elected president; Gerry Kunes, Tifton Judicial Bar’s oldest member; and Bryce Johnson, immediate past president of the Tifton Judicial Bar. programs, and will work with you to create a positive and profession- al experience. For more informa- Mock Trial Committee is hard at tion. Other presenters on the pro- tion, contact Bonne Cella at 229- work planning for the upcoming gram were: Charlton Norah, 387-0446. season. The committee met in teacher, North Clayton High Atlanta as their South and Central School, who spoke about the role Bonne Cella is the Georgia committee members con- of teacher coach; Carl Gebo, attor- office administrator at vened at the State Bar Office in ney, Powell Goldstein, LLP, who the State Bar of Tifton to participate through video reviewed the role of attorney Georgia’s South conferencing. Stacy Rieke, high coach; Robert Smith, Georgia State Georgia Office in school mock trial coordinator, pre- Department of Law, talked about Tifton and can be sented an overview of the competi- “A View from the Jury Box;” and reached at [email protected].
Update Your Member Information Keep your information up to date with the Bar’s membership department. Please check your information using the Bar’s Online Membership Directory. Member information can be updated 24 hours a day by visiting www.gabar.org/mem- ber_essentials/address_change/.
December 2007 77 Pro Bono
Enhancing Pro Bono and Civil Legal Services Delivery
by Mike Monahan
he State Bar of Georgia Pro Bono Project, a
joint effort of the State Bar of Georgia and T Georgia Legal Services Program (GLSP), has piloted new technology to enhance pro bono and civil legal services delivery. These new tools are housed in the Georgia Online Justice Community at www.GeorgiaAdvocates.org/GOJC—our statewide volunteer lawyer and advocate support website.
With special funding from the federal Legal Services Corporation, the State Bar Pro Bono Project has piloted and implemented our new web-based video project (“webcasting”) with technical support from necessary. Training materials can accompany these live Probono.net. The online video project is designed to and archived video presentations. The online video deliver training and support to volunteer lawyers and project has many potential uses, including video advocates across the state. resources for low-income clients in languages other The online video project provides Georgia’s pro bono than English, distance learning potential, program staff and legal aid community with the capacity to broadcast training, and brief website messaging. live trainings over the Internet that can be viewed from In addition to the webcasting project, the State Bar your office desktop PC or from anywhere you have an Pro Bono Project is set to launch LiveHelp. LiveHelp is Internet connection. These trainings are also archived in an instant messaging tool that allows advocates look- our online library so that advocates can view them as ing for legal information and resources on
78 Georgia Bar Journal GeorgiaAdvocates.org to ask a have created and posted on the who have research or case assis- remotely located website operator statewide advocate site. Through tance needs with law students for help in finding that information Really Simple Syndication (RSS) looking for hands-on work. Law- or resource. The Georgia Advocate and Extensible Markup Language Match will allow law students to is home to more than 6,000 (XML) specific county and case- create accounts and post profiles resources, including manuals, type coded content found on and resumes. Georgia volunteer forms, calendar events and more, GLSP’s case management system lawyers and GLSP staff advocates so lawyers who are new to the site and the Advocate website will flow will have the opportunity as well need extra support in navigating back and forth, putting content at to create accounts and post avail- through the website. In addition to the advocate’s fingertips. The con- able projects for law students. The navigation assistance, trained pro tent integration project will web-based module allows a law bono coordinator “operators” will increase productivity and help school clinical program director or be able to provide potential volun- ensure that advocates easily find staff person to review and teers with referrals to legal aid and all available content for a specific approve student accounts and to pro bono organizations, highlight client matter. review the student’s work as it is available cases, and “co-browse” The State Bar of Georgia Pro uploaded to the web module. with the advocate to demonstrate Bono Project and GLSP, in partner- Lawyers posting projects will be how to use various tools on the ship with the Legal Services able to provide online feedback to website. Corporation, are also reaching out students and to the clinical pro- The State Bar Pro Bono Project is to law schools by adding a new gram. also managing a “one-web” technology tool to assist law school approach to integrate the web con- clinical programs in increasing Michael Monahan tent found on GeorgiaAdvocates.org clinical involvement of students in is the director of the with the case management system pro bono publico service. Pro Bono Project for of Georgia Legal Services Program. In 2007, GLSP and the Pro Bono the State Bar of By Spring 2008, GLSP advocates Project will launch the LawMatch Georgia and can will no longer need to leave their Project—an interactive web-based be reached at Internet-based case management software package that will match [email protected]. system to find the content they volunteer and GLSP attorneys
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December 2007 79 Section News
Sections Begin Bar Year with CLE Luncheons, Seminars by Johanna B. Merrill
he Technology Law Section, chaired by John The Litigation Committee, chaired by Brad Groff, of the Intellectual Property Law Section, chaired by Hutchins, held its first quarterly CLE lunch- Todd McClelland, presented “Underwater Devices Dries Up? Life After In re Seagate,” a panel discussion with eon of the 2007-08 Bar year on Sept. 25 at the speakers James Ewing IV, Kilpatrick Stockton LLP; T Steve Wigmore, King & Spalding LLP; Bernie Zidar, The Buckhead Club in Buckhead. Aaron Danzing, McKesson Technology Solutions; and Daniel Kent, Fish & Richardson, PC. assistant U.S. attorney and Larry Kunin of Morris, On Oct. 5 the Creditors’ Rights Section, co-chaired by Jan Rosser and Harriett Isenberg, hosted its annu- Manning and Martin spoke on the topic “Your al CLE luncheon at Maggiano’s Little Italy restaurant in Buckhead. This year’s topic was “The Real Scoop Computer Has Been Hacked: What Are Your on Garnishments and Levies During 2007,” with speaker John Swann of Freisem, Macon, Swann & Remedies?” The pair discussed a review of the Malone PC. More than 55 attorneys and their guests were in attendance. Computer Fraud and Abuse Act, the Stored On Nov. 14, the Entertainment & Sports Law Section, chaired by Lisa Moore, hosted a quarterly CLE luncheon Communications Act and the Georgia Computer at Shout! restaurant. The program, titled “In Your Home, At Your Desk & On Your Phone: Filmed Content Deals Systems Protection Act. for TV, Internet and Mobile,” featured speakers Michael
J. Martin Lett, Kim Morrise, Gina Henschen, Scott Moran, Michael Miles Alexander, Sandy Evans and Truett Cathy were the first Quigley and Lisa Moore at the Entertainment & Sports Law CLE luncheon. recipients of the Intellectual Property Legends Awards.
80 Georgia Bar Journal Quigley and Scott Moran, both of Robinson College of Business hosted “In the U.S. and around the Turner Broadcasting, and Gina the Inaugural Intellectual Property world, our rapidly evolving, Henschen and Kim Morrise, both of (IP) Legends Awards Luncheon on knowledge-based economy is The Weather Channel. Oct. 17 at the Four Seasons Hotel in dependent on intellectual capital At the November meeting of the Atlanta, with approximately 225 in and driven by ideas and innova- Board of Governers, the Bar’s 40th attendance. The State Bar of tion,” explained Scott Frank, presi- section was approved—Franchise Georgia’s IP Law Section was a co- dent of AT&T Intellectual Property and Distribution Law Section. sponsor of this year’s event. The first and a founding member and chair The purpose of the section is to recipients of the IP Legends Awards of the Georgia State College of Law promote the education and best were Miles Alexander, partner at Intellectual Property Advisory practices of franchise and distribu- Kilpatrick Stockton LLP; S. Truett Board and past chair of the Bar’s IP tion law among Bar members. Cathy, founder and chief executive Law Section. “Intellectual property Perry McGuire of Douglasville officer of Chick-fil-A; and Sandy is one of the primary components will serve as the acting chair for Evans, former chief IP counsel for of the intangible, conceptual assets the remainder of the 2007-08 Bar BellSouth. The IP Legends Award in business, which today account year. To join the section, please will be given yearly, recognizing for approximately 75 percent of the contact Section Liaison Johanna individuals who have made signifi- value of most publicly traded com- Merrill at [email protected]. cant contributions in the area of panies. So naturally, there is a intellectual property, both in the strong connection between IP law Update From business and legal arenas. In addi- and success in business.” the Sections tion, IP Legends Award recipients are individuals who have served Johanna B. Merrill is Georgia State’s College of Law as role models for their peers, sub- the section liaison for and College of Business Presented ordinates, and future members of the State Bar of First Intellectual Property Legends the intellectual property communi- Georgia and can be Awards Oct. 17, submitted by ty, have displayed the highest level reached at Kathryn Wade of ethics in their careers, and have [email protected]. The Georgia State University had a positive impact on their College of Law and J. Mack communities.
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December 2007 81 Casemaker Casemaker: Using the Federal Libraries by Jodi McKenzie
n the last Casemaker article, we asked our mem- years for different circuits. It is also important to note here that the complete 11th Circuit dataset is available bers to take a look at the test version of through the Georgia Library in Casemaker. The second column will indicate how current each of Casemaker 2.0 and provide feedback for the final the datasets are (see fig. 5) Again, this is typically indi- I cated by the most current reporter volume for that development stage. Casemaker has completed its test- dataset. When Slip Opinions are available, an exact date will be provided. ing phase, and based on the feedback they received, are Casemaker 2.0 will include expanded Federal con- tent including all Circuit Court Opinions going back to in the final stages of developing Casemaker 2.0. The 1950, and all U.S. Supreme Court Opinions going back to 1790. When this change takes place, it will be indi- new features and expanded datasets are scheduled to cated on the Current Contents page. Searching in the Federal Library works the same become effective December 2007. way as searching in the state libraries. Here, we are in the U.S. Circuit Opinions search mode. Just as in the One of the most significant benefits to 2.0 will be the Georgia Caselaw dataset, there is a basic search option, expansion of the Federal Library content. Let’s take a which allows you to search for keywords within the look at what’s available now in the Federal Library and content of an opinion. There is also an advanced search what we can look forward to in 2.0. You can access the option, which allows you to do searches by citation Federal Library from the main Casemaker content number, case name, attorney or judges’ names or spe- page. Simply put your curser over the Federal Library cific time frames. By clicking on the pull-down button link and click on it to open the library (see fig. 1). of the “Group to Search” field, you can select to search The Federal Library content page (see fig. 2) will open all circuits at once, or an individual circuit (see fig. 6). to give you access to its contents. The Federal Library You will notice on the content pages of all libraries in gives you access to the U.S. Circuit Courts, the U.S. Casemaker that you will have some datasets that offer Supreme Courts, U.S. District Courts and U.S. Bankruptcy both a “Search” option and a “Browse” option. Here we Opinions. There is also access to the U.S. Code, Federal have chosen the “Browse” option of the U.S. Code. The Court Rules, the Federal Code of Regulations, the USC “Browse” option takes you to a table of contents format Bankruptcy Reform Act, the Federal Code of Regulations, for that particular dataset. Here we can see that the the U.S. Constitution, and Federal Court Forms. “Browse” option gives us a table of contents for the U.S. Whenever you are on content page for either an indi- Code with chapter titles and subsection titles (see fig. 7). vidual state or for the Federal Library, you will find a The “Browse” mode for the Federal Forms link will link for “Current Contents Information” at the bottom take you to a list of forms available for the various cir- of the page (see fig. 3). This is an important link cuits. You must scroll almost to the bottom of the because it will take you to a page that will tell you the screen to get to the 11th Circuit forms (see fig. 8). Here timeframe for the contents of each dataset in library in you will find U.S. Bankruptcy and U.S. District Court which you are currently searching. forms for the 11th Circuit. The first column of the current contents page will tell Casemaker is continually adding new content and you how far back in time each of the datasets extends. features to make it one of the most valuable benefits the The beginning of the dataset will be indicated either by Bar offers its members. a specific year or the reporter book being used for that dataset. For example, it is indicated that the U.S Jodi McKenzie is the member benefits Supreme Court currently begins with cases from 1893. coordinator for the State Bar of Georgia In contrast, the U.S. Circuit courts indicates that it and can be reached at [email protected]. begins with Federal Circuit Reporter 1 F. 3d (see fig. 4). This is an important distinction because the Federal Circuit Reporter 1 F. 3d could include different starting
82 Georgia Bar Journal 1 5
2 6
3 7
4 8 Writing Matters
Writing Myth Busters by Karen J. Sneddon and David Hricik
his installment examines six popular writing
myths, often expressed as “rules” or marked as T “errors” in writing. In fact, although these prin- ciples often serve important purposes, treating them as unbreakable rules can hinder effective communication. Myth 1: Never Split an Infinitive
An infinitive is split when a word is placed between the word “to” and the verb stem. Thus, Captain Kirk split an infinitive when he said “to boldly go” rather than “to go boldly.” The “rule” to not split infinitives probably originated from a desire to emulate Latin. In Latin, infinitives are not split because they are one word. For example, legere means to read. But English is not Latin. Whether this rule serves any purpose is sub- just learning the rudiments of the English language ject to debate, but it is ingrained in many readers, so might write: Santa brought me a bike. And a soccer ball. care should be taken to avoid splitting infinitives, but And a book. A “rule” that a sentence cannot start with they can be split and should be split when necessary to “and,” “but,” “or,” or “because” helps to prevent sen- avoid awkward or strained constructions. tence fragments. Although a good general rule, rigid- ly adhering to it could hinder communication. For Myth 2: Never End a Sentence With example, beginning a sentence with “because” can be a Preposition particularly useful to express cause and effect relation- ships. On the other hand, even though it is permissible Following this supposed rule results in awkward to start a sentence with “and,” “but,” or “or,” doing so constructions: “This is the type of arrant pedantry up can be jolting to some readers. Instead, a stronger tran- with which I shall not put.”1 Although this “rule” is sition (like the conjunctive adverbs “however” or widely recognized, it is generally less rigidly followed “therefore”) often may be better used to help the read- than Myth 1. Since the days of Chaucer, writers have er understand how the sentences relate to each other. ended sentences with prepositions, and effective writ- But, there is no rule against it, and sometimes it is ers can do so when otherwise the construction is awk- effective to do so. ward or unnatural. You should, too. Myth 4: A Paragraph Must Be Myth 3: Never Start a Sentence Longer Than One Sentence With “And,” “But,” “Or,” or Many of us were taught in elementary school that a “Because” paragraph has three to five sentences. No more, no less. Unlike the first two myths, this one serves the valu- This “rule” probably arose to encourage writers to fully able purpose of avoiding sentence fragments. Students develop an idea. Although the presence of multiple one-
84 Georgia Bar Journal sentence paragraphs can be distract- Examples Mercer’s Legal Writing Program is ing, a one-sentence paragraph in the What do you think of the follow- consistently rated as one of the midst of a swarm of lengthy para- ing? top two legal writing programs in graphs can: (1) emphasize a key ■ The law professor permitted the country by U.S. News & World point; (2) function as a transition; or the student to briefly consult Report. (3) provide the reader with a visual her notes before answering the break to absorb the information. question. Endnotes ■ Which department does the 1. This pithy statement is one version Myth 5: The Serial client work in? of the statement popularly attrib- Comma is Not Needed ■ Because of the impending fil- uted to Winston Churchill, ing deadline, the attorney although it is unclear whether the The New York Times no longer worked through lunch. attribution is correct. See Churchill on Prepositions, http://www.wsu.edu uses the serial comma. So, in a list ■ The client contacted the attor- /~brians/errors/churchill.html. of three or more items, there need ney immediately. 2. We consulted the following not be a comma between the penul- resources to assist in formulating timate item and the conjunction Karen J. Sneddon is and debunking these myths. The (“A, B and C” rather than “A, B, an assistant professor Chicago Manual of Style: The and C”). With all due respect to the at Mercer Law School Essential Guide for Writers, Editors, Times, in legal writing, omitting the and teaches in the and Publishers 153-54, 175, 188-89, 193-94, 242-45 (15th ed. 2003); A serial comma can create ambiguity. Legal Writing Program. For example, if Dumbledore gives Dictionary of Modern Legal Usage 13, his property “to Harry, Ron and 101, 420, 856-57 (2d ed. 1995); David Hricik is an Hermione,” should his property be Anne Enquist & Laurel Currie associate professor at Oates, Just Writing: Grammar, divided into two shares or three Punctuation, and Style for the Legal shares? Omit the serial comma Mercer Law School who has written sever- Writer 21-24 (2005); and Suzanne E. only when doing so does not Rowe, The Legal Writer: Six to Nix, change the meaning you intend or al books and more 67 Or. St. B. Bull. 37 (Nov. 2006). create unintended ambiguity. than a dozen articles. Myth 6: “Impact” is a A Smart Read for Smart Readers Noun Not a Verb Th e metro Atlanta legal community relies on the Daily Report for award-winning coverage of the business Language is always changing. of law, courts and legal aff airs. Nouns turn into verbs. Some read- ers strongly disprove of such lin- Th e Daily Report serves its highly educated and affl uent guistic transformations. For exam- lawyer-readers with content relevant to their lives both ple, some readers strongly object to inside and outside the offi ce. the use of “impact” as a verb when For advertising information please contact: “affect” and “influence” could eas- Mischelle Grant • (404) 419.2820 • [email protected] ily be used instead. (There is even a To subscribe call 1.877.ALM.CIRC website called www.impactisno- check us out taverb.com.) “Contact,” “access,” www.dailyreportonline.com and “mainstream” are nouns that have been accepted as and are often used as verbs. So, while Business Valuations “impact” may not be a verb to many now, in 15 years, readers ! ! ! ! may not even notice that “impact” Divorces Estate/Gifts ESOPs Disputes Fairness Opinions Family Limited Partnerships ! Intangible Assets can be a noun and a verb. Mitchell Kaye, CFA, ASA Conclusion (770) 998-4642 Recognizing and avoiding the e-mail: [email protected] mythical rules of writing can be lib- erating. However, remember the American Society of Appraisers ! Past President, Atlanta Chapter audience. It is better to follow the Chartered Financial Analyst myth than to distract the reader serving appraisal clients since 1981 with an awkward or unexpected Court Testimony / IRS Experience construction.2
December 2007 85 Professionalism Page
Take Your Adversary To Lunch: “An Order of Professionalism, Please, With a Side of Civility…” by Donald R. Donovan
arrying a large stack of paper and a large would work—if I called and ask my learned opposing counsel to have lunch?” brown envelope, one of the firm’s senior part- One of the most successful local bar activities in recent years has been the Atlanta Bar Association’s “Take Your ners walked back into his secretary’s office. Adversary to Lunch” program. Adversaries who have C never met, as well as lawyers with years of experience “Did you see this?” he asked her. His secretary shrugged with each other, have all benefited from the idea that it’s difficult to be hard-headed and contrary over a good and nodded. “This is styled ‘Defendants’ Fifth Continuing steak or pulled-pork sandwich. “Take Your Adversary to Lunch” is a program that Interrogatories’ and there’s the State Bar’s Professionalism Committee—with the consent another Request for Production,” and permission of the Atlanta Bar Association, crediting the the partner said. “And I think idea to the Atlanta Bar Association’s Litigation Com- that’s their third one! I looked mittee—would like to take statewide because it promotes over some of the interrogatories, professionalism and civility in our everyday endeavors. and a lot of them are just A local lawyer with whom I dealt very little, but who I rephrasings of questions he knew, saw in court many times, and with whom I asked at our client’s deposition. shared a common back- ground, was opposing coun- There’s got to be a way to put a sel in a tawdry domestic case. It was our second case togeth- stop to this.” er in about a year. It was obvi- ous soon after we exchanged “Maybe,” his secretary said, “if he were a local discovery that he was reacting in an aggressive manner lawyer that we knew and saw more of in the court- and was apparently not in a cooperative and friendly room, he’d know we’re more than willing to be coop- “pick-up-the-phone-and-let’s-talk” mode. I called him, erative and he wouldn’t be inundating us with paper. and, knowing of the success of the Atlanta Bar’s pro- That file is about eight inches thick now.” gram, asked if he would like to have lunch. He some- The partner laid the file on her desk. “You know, my what reluctantly agreed and we met later that week. dad used to say, ‘There are darn few problems that After some small talk, I put it to him right over the bur- can’t be settled over the dinner table.’ I wonder if that rito, enchilada and chalupa-with-beans-and-salsa:
86 Georgia Bar Journal “We’re friends. What’s the prob- legal services to the public.”1These sage or maybe an e-mail. Or just lem?” His answer was simple: he goals are accomplished when walk across the street. Take your saw himself on the losing side in lawyers work together toward a adversary to lunch. Enjoy lawyer- both of our recent cases, or, as he common goal: the prompt resolu- ing the way you know it should be put it, “In the last two cases, you’ve tion of their clients’ legal matters done and encourage your adversary been the windshield and I’ve been by lawyers who are civil and act to join you in being professional. the bug.” I couldn’t exactly dis- professionally toward one another “How was lunch with opposing agree, but I did point out that as well as toward the legal tri- counsel?” regardless of our respective situa- bunals in which they appear. “Very nice, actually. It was obvi- tions, I stood ready—as counsel for Now, that language in the last ous pretty quick that he just didn’t the winner or the loser—to cooper- paragraph sounds stiff and stilted, know me and felt like he was at a ate in discovery and scheduling so let’s put it another way: when disadvantage since he’s never prac- court dates, and that I was more you and opposing counsel are con- ticed in this court before. And than willing to accommodate him stantly at each other’s throats, and guess what? It turns out we’re fra- in any way that wouldn’t compro- slamming each other with tons of ternity brothers!” mise my commitment to my client. paper when a simple telephone call “I’m guessing, then, this case He acknowledged that he was would do, you aren’t providing the will be a little easier now?” equally ready to do likewise, and “competent legal services” to “Easier? Maybe, maybe not. But we parted, still friends, but—even which the mission statement refers. it will certainly be more pleasant. better—with a solid understanding It stands to reason that lawyers Taking my adversary to lunch was that we weren’t going to let clients who smile and talk together calmly a really good idea.” spoil our good relationship. without being antagonistic are “So, where did you go to eat?” Similarly, about a year ago, a going to get better results for their “That was where we really had lawyer from a downtown Atlanta clients. Lawyers who respond to to work out our differences. I want- firm (one with a laundry-list of unnecessary discovery or abusive ed to go to Chez Henri, but he want- names on the letterhead, as pleadings by drafting something in ed to go to Big Momma’s Q ‘n’ opposed to a small-town law firm like spirit are not serving their Stew.” such as mine, with only three clients’ best interests, and they do “Where’d you wind up?” names) filed an answer in a civil nothing to promote professional- “We compromised and went to action involving real property. I ism in the practice of law. the Krystal.” had never heard of either the attor- You can get to that stage—the ney or his firm, but—based again “less-antagonistic, let’s see what a Donald (Dick) R. on my experience and the success friendly approach can do” Donovan practices of the Atlanta Bar’s program—my stage—just by meeting your with Donovan immediate response on receiving adversary and having a pleasant Chambers, P.C. in his answer was to call and suggest lunch. The place doesn’t matter, Hiram and proudly lunch in Atlanta. First of all, that and—unless opposing counsel is a chairs the State Bar would give me a chance to get a gourmand—neither does the Committee on Professionalism. downtown-lawyer-restaurant menu. The point is to meet, talk, lunch, but, more importantly, it discuss, and get to know your Endnotes would also give us a chance to adversary, and, maybe, incidental- 1. Excerpted from the Mission meet, talk and get to know each ly, talk about the case and how Statement of the State Bar other, as well. You can tell a lot you can cooperate better to Committee on Professionalism. about a person by his or her lunch resolve it or get it ready for trial. It choices, both the choice of venue doesn’t mean he or she is going to and choices from the menu. be nicer, that he or she will take Civility in our profession has in your children to raise, or even cut recent times been less obvious than you any slack in the case you have in the past. Both the Chief Justice’s together. But, it makes the chances Commission on Professionalism for civility in the ongoing litiga- and the State Bar’s Professionalism tion much more likely, and it Committee have as their joint mis- shows your positive attitude and sion, promoting the “various facets that your mind-set is one of being of professionalism including willing to make it easier to do knowledge, technical skill, com- what lawyers should most want to mitment to clients, dedication to do: serve their clients. the law and public good, and ulti- So pick up that phone. Or mately the providing of competent BlackBerry. Call. Send a text mes-
December 2007 87 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.
John D. Atchison Jennifer P. Guthas J. Cleve Miller Pensacola, Fla. Hiram, Ga. Elberton, Ga. Admitted 1985 Admitted 2004 Admitted 1965 Died October 2007 Died July 2007 Died September 2007
Robert H. Cofer II Laura Turea Hanson Joseph Cleon Nalley Thomson, Ga. Atlanta, Ga. Gainesville, Ga. Admitted 1970 Admitted 1988 Admitted 1983 Died February 2007 Died March 2007 Died July 2007
Ronald J. Davis Gresham Hughel Harrison John L. O’Dell Stone Mountain, Ga. Lawrenceville, Ga. LaFayette, Ga. Admitted 1975 Admitted 1955 Admitted 1985 Died June 2007 Died August 2007 Died July 2007
William T. Dean Jr. Craig Jackson Huffaker Paul C. Parker Atlanta, Ga. Nashville, Tenn. Decatur, Ga. Admitted 1965 Admitted 1981 Admitted 1978 Died September 2007 Died May 2007 Died September 2007
Richard J. Ennis Marion P. Jackson S. J. Robertson Smyrna, Ga. Atlanta, Ga. Savannah, Ga. Admitted 1971 Admitted 1976 Admitted 1948 Died September 2007 Died May 2007 Died April 2007
Joseph J. Gaines Rebecca J. Jakubcin Mark Norman Stephen Athens, Ga. Atlanta, Ga. Savannah, Ga. Admitted 1952 Admitted 2000 Admitted 1948 Died September 2007 Died October 2007 Died August 2007
Donald J. Goodman John Perry Lilly John C. Stophel Atlanta, Ga. Dallas, Texas Chattanooga, Tenn. Admitted 1973 Admitted 1972 Admitted 1953 Died August 2007 Died December 2006 Died October 2007
Doye E. Green J. Dudley McClain Jr. George Edward Swanson Jr. Macon, Ga. Roswell, Ga. New Orleans, La. Admitted 1964 Admitted 1965 Admitted 1960 Died August 2007 Died December 2006 Died May 2007
W. Dan Greer Duard R. McDonald Ronald Wayne Wells Covington, Ga. Marietta, Ga. Atlanta, Ga. Admitted 1951 Admitted 1965 Admitted 1981 Died September 2007 Died May 2007 Died April 2007
88 Georgia Bar Journal Hon. Robert H. Cofer Oconee counties worked in the II of Thomson, Ga., most fair and equitable manner passed away February possible. The Elbert County native 2007. Cofer was born in served as a private and city attor- Wilkes County, but ney in Athens for 23 years before lived in Thomson since Gov. George Busbee appointed him 1946. He was the son of the late to serve as a Superior Court judge Consumer Toggie Cofer and the late Elsie for the Western Judicial Circuit in Baker Crowe Cofer. Cofer was an 1976. After 26 years as a Superior attorney in private practice. He Court judge and then as chief judge Pamphlet served as the chief magistrate judge of the Western Judicial Circuit, in McDuffie County for the last 14 Gaines entered semi-retirement in years. He was also a member of the 2002. However, he retained the role Series First Baptist Church. Survivors of a senior judge for the circuit and include: daughters, Jennifer Cofer was called to try cases when his Marx and her husband, William expertise was needed. The State Bar of Georgia’s Marx, and their son, Daniel, of Among attorneys and judges in Consumer Pamphlet Series Huntsville, Ala.; Kimberly Cofer Athens, Gaines was known as a is available at cost to Bar Harris and her daughter, Ava mentor whose impeccable knowl- Grace Harris, of Savannah. edge of the law and integrity members, non-Bar mem- Additional survivors include: embodied the way the judicial sys- bers and organizations. brother, Dr. Tom Cofer of Aiken, tem was meant to operate. S.C.; aunt, Jeanelle Cofer Newsome He oversaw many cases through Pamphlets are priced cost of Washington, Ga.; Stephanie and the years, from sensational murder plus tax and shipping. Anthony Meyer of Greenville, S.C.; trials to tense civil lawsuits. He Questions? and Dr. Benton and Michelle Cofer treated each case with the same of Greenville, S.C. attention and scrutiny, but his skill Call 404-527-8792. as a judge was clearly defined dur- Senior Judge Joseph J. Gaines ing those most difficult cases. It passed away September 2007. For was that persistence and skill that The following pamphlets more than half a century, Gaines earned Gaines the admiration of worked to make sure the judicial those who came up after him in the are available: system in Athens, and Clarke and legal community. Auto Accidents Bankruptcy Buying a Home Divorce Memorial Gifts How to Be a Good Witness The Lawyers Foundation of Georgia furnishes the How to Choose a Lawyer Georgia Bar Journal with memorials to honor deceased members of the State Bar of Georgia. Juror’s Manual Lawyers and A meaningful way to honor a loved one or to Legal Fees Legal Careers commemorate a special occasion is through a Legal Rights of Nursing Home Lawyers Foundation tribute and memorial gift to the Lawyers Residents Living Wills Foundation of Georgia. An expression of sym- of Georgia Inc. Patents, Trademarks and 104 Marietta St. NW pathy or a celebration of a family event that takes the form of a gift to the Lawyers Copyrights Selecting a Suite 630 Foundation of Georgia provides a lasting Atlanta, GA 30303 Nursing Home Selecting a remembrance. Once a gift is received, a written P: (404) 659-6867 acknowledgement is sent to the contributor, the Personal Care Home Wills F: (404) 225-5041 surviving spouse or other family member, and the Georgia Bar Journal. Visit www.gabar.org for an Information order form and more For information regarding the placement of a information memorial, please contact the Lawyers Foundation or e-mail of Georgia at (404) 659-6867 or 104 Marietta St. NW, Suite 630, Atlanta, GA 30303. [email protected].
December 2007 89 Book Review
Deportation Nation: Outsiders in American History by Daniel Kanstroom, Harvard University Press, 352 pages
reviewed by Bob Beer
he thesis of the author Daniel Kanstroom, a
professor and the director of the Human T Rights Program at Boston College Law School, is simple: This country’s immigration system is and has been a means of both governmental border control and post-entry social control. As the author says in the preface, this book purports to answer a mother’s question as to how the United States could impose on her son a lifetime ban from being admitted to this country for violating a minor criminal law.
A secondary purpose of the book is to demonstrate just how much unbridled discretion the American government has had and continues to have over the expulsion of non-citizens from this “nation of immi- grants.” The author also makes analogies between America’s deportation (now called removal) policies and this country’s treatment of Native Americans, African-Americans and, now, alleged terrorists. In addition, Kanstroom’s book clearly shows how today’s debates over immigration are no different Kanstroom’s analysis starts with pre-colonial British from 100 or 200 years ago. policies that existed before the United States became an Indeed, the more things change, the more they stay independent country in 1776. Even after the United the same. States became a country, debates arose over whether
90 Georgia Bar Journal the federal government or the indi- alone broad and sweeping sover- try for the past 231 years, especial- vidual states should control immi- eign authority to regulate all ly during periods of war and gration policy. Even after our aspects of American immigration. national emergencies. Constitution stated in Article I, Congress’s plenary power has been Finally, Kanstroom candidly Section 8, that Congress had the used to justify federal government assesses due process and other power to establish a uniform rule action from the Chinese exclusion legal rights that have and, more of naturalization, the debate con- cases to the recent decisions regard- importantly, have not been given tinued. Indeed, Kanstroom tells us ing “enemy combatants” and their to America’s immigrants over the what the views of our founding incarceration at Guantanamo Bay. last two centuries. For example, fathers were when it came to immi- From the Palmer Raids conduct- immigrants are not entitled to gration. James Madison said that ed by the United States Miranda warnings and some other “it cannot be a true inference, that Department of Justice and protections given to American citi- because the admission of an alien is Attorney General Mitchell Palmer zens through our criminal laws, a favor, the favor may be revoked against alleged left-wing radical such as the right to appointed at pleasure.” Kanstroom takes us subversives in the 1920s to the counsel or the Eighth Amendment back to the pro and con arguments deportation of self-proclaimed protection against cruel and that eventually resulted in anarchist Emma Goldman to the unusual punishment. Congress’s creation of the Alien use of immigration laws in the In conclusion, this book is a and Sedition Act of 1798. fight against organized crime and timely read, and I highly recom- Kanstroom spends a great deal of communism and the internment of mend it. time focusing on how American the Japanese during World War II, immigration policy was, in no this book weaves a fascinating tale Bob Beer practices small part, formed by the United of the good, the bad and the ugly of immigration law in States Supreme Court’s decisions American immigration law. The Marietta, Ga. He is under the “plenary power” doc- author illustrates the resulting also a member of the trine. The plenary power doctrine double standard that immigrants Georgia Bar Journal gives the United States Congress have had to deal with in this coun- editorial board.
The 20th Anniversary Season is Underway! Presiding Judges and Scoring Evaluators Needed for Regional Competitions 2008 Regional Competition Cities (all scheduled for late February): Albany, Athens, Atlanta, Brunswick, Canton, Cartersville, Dalton, Decatur, Douglasville, Jonesboro, Lawrenceville, Macon, Marietta, McDonough and Savannah Presiding Judges and Scoring Evaluators with Prior High School Mock Trial Experience Needed for State Finals (Gwinnett Justice Center, Lawrenceville, March 15 & 16) Volunteer Forms are Available Online in the “Attorney Volunteer” Section of our Website. Contact the Mock Trial office at the State Bar of Georgia at 404-527-8779/800-334-6865 ext. 779 or [email protected].
December 2007 91 CLE Calendar December-January
DEC 6 ICLE DEC 13 ICLE Mastering Medical Records Selected Video Replay Atlanta, Ga. Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for locations 6 CLE Hours 6 CLE Hours
DEC 6 ICLE DEC 14 ICLE Trial Advocacy Selected Video Replay Atlanta, Ga. – Satellite Rebroadcast Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for locations 6 CLE Hours 6 CLE Hours
DEC 6-7 ICLE DEC 14 ICLE Defense of Drinking Drivers Institute Professional & Ethical Dilemmas in Atlanta, Ga. Litigation Video Replay See www.iclega.org for locations Macon, Ga. 13.5 CLE Hours See www.iclega.org for locations 3 CLE Hours DEC 6-7 ICLE Corporate Counsel Institute DEC 14 ICLE Atlanta, Ga. Jury Trial See www.iclega.org for locations Atlanta, Ga. 12 CLE Hours See www.iclega.org for locations 6 CLE Hours DEC 7 ICLE Building the Million-Dollar Practice DEC 14 ICLE Atlanta, Ga. Matrimonial Law TP Workshop See www.iclega.org for locations Atlanta, Ga. 6 CLE Hours See www.iclega.org for locations 6 CLE Hours DEC 7 ICLE Product Liability DEC 14 ICLE Atlanta, Ga. Labor & Employment Law See www.iclega.org for locations Atlanta, Ga. 6 CLE Hours See www.iclega.org for locations 6 CLE Hours DEC 13 ICLE Section 1983 Litigation DEC 14 ICLE Atlanta, Ga. Recent Developments See www.iclega.org for locations Atlanta, Ga. 6 CLE Hours See www.iclega.org for locations 6 CLE Hours DEC 13 ICLE Dealing with the IRS Atlanta, Ga. See www.iclega.org for locations 6 CLE Hours
Note: To verify a course that you do not see listed, please call the CLE Department at 404-527-8710. Also, ICLE seminars only list total CLE hours. For a breakdown, call 800-422-0893.
92 Georgia Bar Journal CLE Calendar
JAN 10 ICLE JAN 18 ICLE Women in the Profession Heart of the Case – Live Satellite Atlanta, Ga. Broadcast See www.iclega.org for locations Atlanta, Ga. 3 CLE Hours See www.iclega.org for locations 6 CLE Hours JAN 10 ICLE So Little Time, So Much Paper JAN 24 ICLE Atlanta, Ga. Trial Evidence – Satellite Rebroadcast See www.iclega.org for locations Atlanta, Ga. 3 CLE Hours See www.iclega.org for locations 6 CLE Hours JAN 10 ICLE Negotiated Corporate Acquisitions JAN 24 ICLE Atlanta, Ga. Family Law Convocation on See www.iclega.org for locations Professionalism 6 CLE Hours Atlanta, Ga. See www.iclega.org for locations JAN 11 ICLE 3 CLE Hours Collaborative Law Atlanta, Ga. JAN 24 ICLE See www.iclega.org for locations White Collar Crime 3 CLE Hours Atlanta, Ga. See www.iclega.org for locations JAN 11 ICLE 6 CLE Hours Trial Advocacy (2nd Video Replay) Satellite Rebroadcast JAN 25 ICLE See www.iclega.org for locations Art of Effective Speaking for Lawyers 6 CLE Hours Atlanta, Ga. See www.iclega.org for locations JAN 17 ICLE 6 CLE Hours Eminent Domain Atlanta, Ga. JAN 25 ICLE See www.iclega.org for locations Writing to Persuade 6 CLE Hours Atlanta, Ga. See www.iclega.org for locations JAN 18 ICLE 6 CLE Hours Plaintiff’s Personal Injury Atlanta, Ga. JAN 31 ICLE See www.iclega.org for locations Recent Developments – Satellite 6 CLE Hours Rebroadcast Atlanta, Ga. JAN 18 ICLE See www.iclega.org for locations Advanced Patent Law 6 CLE Hours Atlanta, Ga. See www.iclega.org for locations 6 CLE Hours
December 2007 93 Notices Notice of Motion to Amend the Rules and Regulations of the State Bar of Georgia
No earlier than thirty days after the publication of I. this Notice, the State Bar of Georgia will file a Motion to Amend the Rules and Regulations for the Organization It is proposed that Rule 1-501 of Chapter 5 of Part I and Government of the State Bar of Georgia pursuant to of the Rules of the State Bar of Georgia regarding Part V, Chapter 1 of said Rules, 2006-2007 State Bar of license fees be amended by deleting the struck-through Georgia Directory and Handbook, p. H-6 to H-7 (here- portions of the rule and inserting those portions in inafter referred to as “Handbook”). Pursuant to Rule 5- boldface italics as follows: 104, Handbook, p. 6-7, notice of the consideration of this proposed amendment by the Board of Governors at its Rule 1-502. Amount of License Fees November 2, 2007 meeting was provided to the mem- The amount of such license fees for active members bership on page 109 of the August issue of the Georgia shall not exceed $250.00 $350.00, and shall annually Bar Journal, Volume 13, No. 1. be fixed by the Board of Governors for the ensuing I hereby certify that the following is the verbatim year; provided, however, that except in the case of text of the proposed amendments as approved by the an emergency, such annual dues shall not be Board of Governors of the State Bar of Georgia. Any increased in any one year by more than $25.00 over member of the State Bar of Georgia who desires to those set for the next preceding year. The annual object to these proposed amendments to the Rules is license fees for inactive members shall be in an reminded that he or she may only do so in the manner amount not to exceed one-half (1/2) of those set for provided by Rule 5-102, Handbook, p. H-6. active members. Subject to the above limitations, This Statement and the following verbatim text are license fees may be fixed in differing amounts for intended to comply with the notice requirements of different classifications of active and inactive mem- Rule 5-101, Handbook, p. H-6. bership, as may be established in the bylaws.
Cliff Brashier Pursuant to Rule 5-104, 2006-2007 State Bar of Georgia Executive Director Directory and Handbook, p. 6-7, notice of the considera- State Bar of Georgia tion of this proposed amendment by the Board of Governors at its November 2, 2007 meeting was pro- IN THE SUPREME COURT vided to the membership on page 109 of the August STATE OF GEORGIA issue of the Georgia Bar Journal, Volume 13, No. 1.
IN RE: STATE BAR OF GEORGIA SO MOVED, this ___ day of ______, 2007. Rules and Regulations for its Organization and Government Counsel for the State Bar of Georgia
MOTION TO AMEND 2008-1 ______William P. Smith, III MOTION TO AMEND THE RULES AND REGU- General Counsel LATIONS OF THE STATE BAR OF GEORGIA State Bar No. 665000
COMES NOW, the State Bar of Georgia, pursuant to ______the authorization and direction of its Board of Robert E. McCormack Governors in a regular meeting held on November 2, Deputy General Counsel 2007, and upon the concurrence of its Executive State Bar No. 485375 Committee, and presents to this Court its Motion to Amend the Rules and Regulations of the State Bar of Georgia as set forth in an Order of this Court dated OFFICE OF THE GENERAL COUNSEL December 6, 1963 (219 Ga. 873), as amended by subse- State Bar of Georgia quent Orders, 2006-2007 State Bar of Georgia Directory 104 Marietta Street, NW – Suite 100 and Handbook, pp. 1-H, et seq., and respectfully moves Atlanta, Georgia 30303 that the Rules and Regulations of the State Bar of (404) 527-8720 Georgia be amended in the following respects:
94 Georgia Bar Journal Formal Advisory Opinion Issued Pursuant to Rule 4-403(d)
The second publication of this opinion appeared in the Rule 1.6: Confidentiality of Information applies not August 2007 issue of the Georgia Bar Journal, which was merely to matters communicated in confidence by mailed to the members of the State Bar of Georgia on or the client but also to all information relating to the about August 7, 2007. The opinion was filed with the representation, whatever its source. A lawyer may Supreme Court of Georgia on August 15, 2007. No review not disclose such information except as authorized or was requested within the 20-day review period, and the required by the Rules of Professional Conduct or Supreme Court of Georgia has not ordered review on its other law. own motion. On September 5, 2007, the Formal Advisory Opinion Board issued Formal Advisory Opinion No. 07- Former Standard 28 limited confidentiality to “confi- 1 pursuant to Rule 4-403(d). Following is the full text of dences and secrets of a client.” However, Rule 1.6 the opinion issued by the Board. expands the obligations by requiring a lawyer to “maintain in confidence all information gained in the STATE BAR OF GEORGIA professional relationship” including the client’s secrets ISSUED BY THE FORMAL ADVISORY and confidences. OPINION BOARD PURSUANT TO RULE 4-403 ON SEPT. 5, 2007 An attorney’s ethical duty to maintain confidentiali- FORMAL ADVISORY OPINION NO. 07-1 ty of client information is distinguishable from the attorney-client evidentiary privilege of O.C.G.A. §§24- QUESTION PRESENTED: 9-21, 24-9-24 and 24-9-25. Tenet Healthcare Corp. v. Louisiana Forum Corp., 273 Ga. 206, 209-10 (2000). May a lawyer ethically disclose information concern- Thus, Rule 1.6 applies not only to matters governed by ing the financial relationship between the lawyer and the attorney-client privilege, but also to non-privileged his client to a third party in an effort to collect a fee from information arising from the course of representation. the client? Information concerning the financial relationship between the lawyer and client, including the amount of SUMMARY ANSWER: fees that the lawyer contends the client owes, may not be disclosed, except as permitted by the Georgia Rules A lawyer may ethically disclose information con- of Professional Conduct, other law, order of the court or cerning the financial relationship between himself and if the client consents. his client in direct efforts to collect a fee, such as bring- ing suit or using a collection agency. Otherwise, a Rule 1.6 authorizes disclosure in the following cir- lawyer may not report the failure of a client to pay the cumstances: lawyer’s bill to third parties, including major credit reporting services, in an effort to collect a fee. (b)(1) A lawyer may reveal information covered by paragraph (a) which the lawyer reasonably believes OPINION: necessary: . . . This issue is governed primarily by Rule 1.6 of the (iii) to establish a claim or defense on behalf of the Georgia Rules of Professional Conduct. Rule 1.6 pro- lawyer in a controversy between the lawyer and the vides, in pertinent part: client, to establish a defense to a criminal charge or civil action against the lawyer based upon conduct in (a) A lawyer shall maintain in confidence all infor- which the client was involved, or to respond to alle- mation gained in the professional relationship with a gations in any proceeding concerning the lawyer’s client, including information which the client has representation of the client. requested to be held inviolate or the disclosure of which would be embarrassing or would likely be The comments to Rule 1.6 clarify that such disclo- detrimental to the client, unless the client consents sures should be made only in limited circumstances. after consultation, except for disclosures that are While Comment 17 to Rule 1.6 provides that a lawyer impliedly authorized in order to carry out the repre- entitled to a fee is permitted to prove the services ren- sentation, or are required by these rules or other law, dered in an action to collect that fee, it cautions that a or by order of the Court. lawyer must make every effort practicable to avoid unnecessary disclosure of information related to a rep- Comment 5 to Rule 1.6 provides further guidance: resentation, to limit disclosure to those having the need
December 2007 95 to know it, and to obtain protective orders or make unpaid fees to a credit bureau because such reporting other arrangements minimizing the risk of disclosure. “is not necessary to collect a fee because a delinquent Further caution is found in Comment 12, which pro- fee can be collected without it.” Mont. Ethics Op. vides that “[i]n any case, a disclosure adverse to the 001027 (2000). The Montana Opinion further conclud- client’s interest should be no greater than a lawyer rea- ed, “The effect of a negative report is primarily puni- sonably believes necessary to the purpose.” tive [and] it risks disclosure of confidential informa- tion about the former client which the lawyer is not In Georgia, it is ethically permissible for a lawyer to permitted to reveal under Rule 1.6.” See also New retain a collection agency as a measure of last resort in York State Ethics Opinion 684 (1996) (reporting order to collect a fee that has been properly earned. client’s delinquent account to credit bureau does not Advisory Opinion No. 49 issued by the State qualify as an action “to establish or collect the Disciplinary Board. Advisory Opinion 49, however, lawyer’s fee” within the meaning of the exception to only applies to a referral to a “reputable collection the prohibition on disclosure of client information). agency”. Advisory Opinion 49 further states that a But see Florida Ethics Opinion 90-2 (1991) (it is ethi- lawyer should exercise the option of revealing confi- cally permissible for an attorney to report a delin- dences and secrets necessary to establish or collect a fee quent former client to a credit reporting service, pro- with considerable caution. Thus, while use of a rep- vided that confidential information unrelated to the utable collection agency to collect a fee is ethically prop- collection of the debt was not disclosed and the debt er, disclosures to other third parties may not be ethical- was not in dispute). ly permissible. Formal Advisory Opinion 95-1 provides that limitations exist on a lawyer’s efforts to collect a fee While recognizing that in collecting a fee a lawyer from his client even through a fee collection program. may use collection agencies or retain counsel, the Restatement (Third) of the Law Governing Lawyers con- Other jurisdictions that have considered similar cludes that a lawyer may not disclose or threaten to issues have distinguished between direct efforts to col- disclose information to non-clients not involved in lect an unpaid fee, such as bringing suit or using a col- the suit in order to coerce the client into settling and lection agency, from indirect methods in which infor- may not use or threaten tactics, such as personal mation is disclosed to third parties in an effort to collect harassment or asserting frivolous claims, in an effort unpaid fees. In these cases, the direct methods have to collect fees. Restatement (Third) of the Law Governing generally been found to be ethical, while more indirect Lawyers § 41, comment d (2000). The Restatement has methods, such as reporting non-paying clients to credit determined that collection methods must preserve the bureaus, have been found to be unethical. South client’s right to contest the lawyer’s position on the Carolina Bar Advisory Opinion 94-11 concluded that a merits. Id. The direct methods that have been found lawyer may ethically use a collection agency to collect to be ethical in other jurisdictions, such as bringing past due accounts for legal services rendered but can- suit or using a collection agency, allow the client to not report past due accounts to a credit bureau. The contest the lawyer’s position on the merits. Indirect Opinion advises against reporting non-paying clients to efforts, such as reporting a client to a credit bureau or credit bureaus because (1) it is not necessary for estab- disclosing client financial information to other credi- lishing the lawyer’s claim for compensation, (2) it risks tors of a client or to individuals or entities with whom disclosure of confidential information, and (3) it smacks the client may do business, are in the nature of per- of punishment in trying to lower the client’s credit rat- sonal harassment and are not ethically permissible. ing. S.C. Ethics Op. 94-11 (1994). See also South Dakota Accordingly, a lawyer may not disclose information Ethics Op. 95-3 (1995) and Mass. Ethics Op. 00-3 (2000) concerning the financial relationship between himself and his client to third parties, other than through The Alaska Bar Association reached a similar conclusion direct efforts to collect a fee, such as bringing suit or when it determined that “an attorney who lists a client using a collection agency. with a credit agency has revealed confidential information about the client for a purpose not permitted by ARPC 1.6 The second publication of this opinion appeared in the (b) (2) since such a referral is at most an indirect attempt to August 2007 issue of the Georgia Bar Journal, which was pressure the client to pay the fee.” Alaska Ethics Op. No. mailed to the members of the State Bar of Georgia on or about 2000-3 (2000). The Alaska Bar Ethics Opinion is based on August 7, 2007. The opinion was filed with the Supreme the notion that listing an unpaid fee with a credit bureau is Court of Georgia on August 15, 2007. No review was likely to create pressure on the client to pay the unpaid fee requested within the 20-day review period, and the Supreme more from an in terrorem effect of a bad credit rating than Court of Georgia has not ordered review on its own motion. from any merit to the claim. In accordance with Rule 4-403(d), this opinion is binding only on the State Bar of Georgia and the person who request- The State Bar of Montana Ethics Committee con- ed the opinion, and not on the Supreme Court of Georgia, cluded that an attorney may not report and disclose which shall treat the opinion as persuasive authority only.
96 Georgia Bar Journal Let CAP Lend a Helping Hand!
What is the Consumer Assistance Program? What doesn’t CAP do? The State Bar s Consumer Assistance Program (CAP) helps CAP deals with problems that can be solved without resort- people with questions or problems with Georgia lawyers. When ing to the disciplinary procedures of the State Bar, that is, filing someone contacts the State Bar with a a grievance. CAP does not get involved when someone alleges problem or complaint, a member of the Consumer Assistance serious unethical conduct. CAP cannot give legal advice, but Program staff responds to the inquiry and attempts to identify the can provide referrals that meet the consumer s need utilizing its problem. Most problems can be resolved by providing informa- extensive lists of government agencies, referral services and tion or referrals, calling the lawyer, or suggesting various ways nonprofit organizations. of dealing with the dispute. 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: Yes. CAP helps lawyers by providing courtesy calls, faxes 1. Where the information clearly shows that the lawyer has or letters when dissatisfied clients contact the misappropriated funds, engaged in criminal conduct, or program. intends to engage in criminal conduct in the future; Most problems with clients can be prevented by returning 2. Where the caller files a grievance and the lawyer calls promptly, keeping clients informed about the status of involved wants CAP to share some information with the their 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.
Call the State Bar’s Consumer Assistance Program at (404) 527-8759 or (800) 334-6865 or visit www.gabar.org/programs/consumer_assistance_program. Classified Resources
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98 Georgia Bar Journal Classified Resources
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Sign up for the Women & Minorities in the Unlock Profession Committee’s Speaker Clearinghouse your Potential About the Clearinghouse The Women and Minorities in the Profession Committee is committed to promoting equal par- ticipation 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.
December 2007 99 Classified Resources
Positions required. Additional training is available. Qualified Personal Injury or Workers’ Compensation Attorney. applicants should e-mail a resume to [email protected] Well-established, successful Atlanta Plaintiff’s firm or fax to Marcia Kouns at 770-507-2501. seeking motivated Personal Injury or Workers’ Compensation Attorney. Great Support, excellent WE URGENTLY NEED ATTORNEYS! Our attorney financial opportunity including benefits. Fax resume to directory has thousands of clients urgently looking for OC at 800-529-3477. attorneys. Join now! Go to: FindAttorneyOrLaywer.com or call 1-800-585-0949. Trial Counsel Wanted, South Georgia Atlanta plain- tiff personal injury firm seeks experienced trial attor- Small but busy law office in Albany needs an associ- ney to associate as lead counsel on an ongoing basis. ate attorney. Salary DOE. Fax resume to 229-446-1454. Please send curriculum vitae/resume to P.O. Box www.jeanietupper.com. 95902, Atlanta, 39347-0902. Advertisers Index Trial Counsel Wanted, Atlanta Metro Area Atlanta AAA Attorney Referral Service...... 9 plaintiff personal injury firm seeks experienced trial American Immigration Lawyers Association ...... 7 attorney to associate as lead counsel on an ongoing basis. Please send curriculum vitae/resume to P.O. Box Arthur T. Anthony...... 57 95902, Atlanta, 39347-0902. Baker, Donelson, Bearman, Caldwell & Berkowitz, PC ...... 2 Bull Darity Hopson & Worley Court Reporters ...... 87 AV rated Canton law firm seeks both a litigation asso- Christopher H. Dunagan, Mediator ...... 57 ciate and a corporate/real estate associate, each with a Daily Report ...... 85 minimum of five years experience. Excellent work Executive Collection Services, LLC ...... 31 environment. Please e-mail resume to dmt@dmtlaw Gallery 63...... 49 firm.com. Georgia Domestic Solutions ...... 43 Georgia Lawyers Insurance Co...... IFC Litigation Attorney, Savannah, Georgia. Established, Gilsbar, Inc...... 21 AV-rated Savannah law firm seeking attorney with 8-15 Guaranteed Subpoena ...... 55 years experience to join civil litigation group. Partial Imbordino Polygraph Examinations...... 57 book of business required. Please send curriculum vitae/resume in confidence to [email protected] Insurance Specialists, Inc...... 1 Intelligent Office...... 75 Law Firm: Savannah. Tax, Estate and Business Keenan’s Kids Foundation...... 74 Planning. Prominent law firm in Savannah, GA is Lawyers Direct ...... 81 looking for a practicing lawyer and member of the Minnesota Lawyers Mutual...... 79 Georgia Bar with a LLM in Tax, experience as a CPA Mitchell Kaye Valuation ...... 85 and/or 2-5 years experience in taxation, estate plan- National Legal Research Group, Inc...... 51 ning, health and business law. Outstanding benefits, Norwitch Document Laboratory ...... 57 competitive compensation and excellent growth poten- Pre-Settlement Finance ...... IBC tial. Submit resumes and inquiries to P.O. Box 10190, Professionals Choice Insurance ...... 65 Savannah, GA 31412. SoftPro Corporation ...... 29 South Georgia ADR ...... 59 Estate Planning and Elder Law Firm seeks an attorney with income tax experience. This individual will handle Southern Lending Solutions ...... 23 estate planning and estate administration work, in addi- Suntrust ...... 67 tion to preparing estate tax (Form 706), gift tax (Form Warren R. Hinds ...... 71 709), 1040 and 1041 tax returns and some corporate West Group ...... BC returns. An LLM and/or CPA is preferred, but not
100 Georgia Bar Journal
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