The Admissibility of Scientific Evidence: a Primer on Federal Law How Does Your Firm Face Risk?

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LTN Free to members of the State Bar of Georgia. #1 2010 Customer Satisfaction Survey Members of the State Bar of Georgia now have access to Fastcase for free. Unlimited search using Fastcase’s smarter legal research tools, unlimited printing, and unlimited reference support, all free to active members of the State Bar of Georgia. Log in at www.gabar.org and click the Fastcase logo. And don’t forget that Fastcase’s free apps for iPhone, Android and iPad connect to your bar account automatically by Mobile Sync. All free as a bene t of membership in the State Bar of Georgia. Quick Dial Editorial Board Attorney Discipline 800-334-6865 Editor-in-Chief ext. 720 404-527-8720 Bridgette E. Eckerson Consumer Assistance Program 404-527-8759 Members Conference Room Reservations 404-419-0155 Julia Anderson Michelle J. Hirsch Fee Arbitration 404-527-8750 Robert Henry Beer Michael Eric Hooper CLE Transcripts 404-527-8710 Diversity Program 404-527-8754 Donald P. Boyle Jr. Hollie G. Manheimer ETHICS Helpline 800-682-9806 John Clay Bush Edward Alexander Marshall 404-527-8741 Clayton Owen Carmack Olivia Orza Georgia Bar Foundation/IOLTA 404-588-2240 Georgia Bar Journal 404-527-8791 Catherine Nemetz Clutter Matthew James Pociask Lawyer Assistance Program 800-327-9631 James William Cobb Addison Johnson Schreck Lawyers Foundation of Georgia 404-659-6867 Timothy Jerome Colletti Jack P. Smith III Law Practice Management 404-527-8773 Law-Related Education 404-527-8785 Lynn Gavin Robert R. Stubbs Membership Records 404-527-8777 Adina Greiner Pamela Y. White-Colbert Meetings Information 404-527-8790 Christina Virginia Hendrix Pro Bono Project 404-527-8763

Professionalism 404-225-5040 Sections 404-527-8774 Editors Emeritus Unlicensed Practice of Law 404-527-8743 Robert R. Stubbs, 10-12 William L. Bost Jr., 91-93 Young Lawyers Division 404-527-8778 Donald P. Boyle Jr., 07-10 Charles R. Adams III, 89-91 Manuscript Submissions Marcus D. Liner, 04-07 L. Dale Owens, 87-89 The Georgia Bar Journal welcomes the submission of unsolic- Rebecca Ann Hoelting, 02-04 Donna G. Barwick, 86-87 ited legal manuscripts on topics of interest to the State Bar of Georgia or written by members of the State Bar of Georgia. Marisa Anne Pagnattaro, 01-02 James C. Gaulden Jr., 85-86 Submissions should be 10 to 12 pages, double-spaced (including endnotes) and on letter-size paper. Citations should con- D. Scott Murray, 00-01 Jerry B. Blackstock, 84-85 form to A UNIFORM SYSTEM OF CITATION (19th ed. 2010). William Wall Sapp, 99-00 Steven M. Collins, 82-84 Please address unsolicited articles to: Bridgette Eckerson, State Bar of Georgia, Communications Department, 104 Marietta Theodore H. Davis Jr., 97-99 Walter M. Grant, 79-82 St. NW, Suite 100, Atlanta, GA 30303. Authors will be notified L. Brett Lockwood, 95-97 Stephen E. Raville, 77-79 of the Editorial Board’s decision regarding publication. Stephanie B. Manis, 93-95 The Georgia Bar Journal welcomes the submission of news about local and circuit bar association happenings, Bar members, law firms and topics of interest to attorneys in Officers of the State Bar of Georgia Georgia. Please send news releases and other information to: Sarah I. Coole, Director of Communications, 104 Robin Frazer Clark President Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: Charles L. Ruffin President-Elect 404-527-8791; [email protected]. Kenneth L. Shigley Immediate Past President Disabilities Patrise M. Perkins-Hooker Treasurer If you have a disability which requires printed Robert J. Kauffman Secretary materials in alternate formats, please contact the ADA coordinator at 404-527-8700 or 800-334-6865. Jon Pannell YLD President Headquarters Darrell L. Sutton YLD President-Elect 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 Stephanie Joy Kirijan YLD Past President 800-334-6865, 404-527-8700, FAX 404-527-8717 Visit us on the Web at www.gabar.org. Communications Committee South Georgia Office 244 E. Second St. (31794) P.O. Box 1390 Jay Cook Co-Chair Tifton, GA 31793-1390 Robert Ingram Co-Chair 800-330-0446, 229-387-0446, FAX 229-382-7435 Coastal Georgia Office Communications Staff 18 E. Bay St. Sarah I. Coole Director Savannah, GA 31401-1225 877-239-9910, 912-239-9910, FAX 912-239-9970 Jennifer R. Mason Assistant Director Publisher’s Statement Derrick W. Stanley Section Liaison The Georgia Bar Journal (ISSN-1085-1437) is published six times Stephanie J. Wilson Administrative Assistant per year (February, April, June, August, October, December) with a special issue in November by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303. Copyright State Bar of Georgia 2013. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in Atlanta, Georgia and additional The opinions expressed in the Georgia Bar Journal mailing offices. Opinions and conclusions expressed in articles herein are those of the authors and not necessarily those of the are those of the authors. The views expressed herein Editorial Board, Communications Committee, Officers or Board are not necessarily those of the State Bar of Georgia, of Governors of the State Bar of Georgia. Advertising rate card will be furnished upon request. Publishing of an advertisement its Board of Governors or its Executive Committee. does not imply endorsement of any product or service offered. POSTMASTER: Send address changes to same address. 10

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GBJ Legals Departments 24 10 4 From the President The Admissibility 8 From the YLD President of Scientific Evidence: 42 Bench & Bar A Primer on Federal Law Office of the General by Hon. William S. Duffey Jr. 48 Counsel 18 50 Lawyer Discipline Recent Advances in 54 Law Practice Management International Arbitration: 56 Pro Bono 32 Winning the Race to the Top by Stephen L. Wright 62 Member Benefits and Shelby S. Guilbert Jr. 64 Writing Matters 66 Professionalism Page GBJ Features 68 In Memoriam 24 70 Book Review A Thousand Military Cases CLE Calendar for Georgia Lawyers 74 by Norman E. Zoller 76 Notices 87 Classified Resources 30 Advertisers Index 48 2013 Legislative Review 88 by Russell N. “Rusty” Sewell

Buy One, Get One GBJ Fiction 32 Whitecliffe by Mark Roy Henowitz 64 From the President

by Robin Frazer Clark Photo by Zach Porter Photography Realizing the Dream of Equality for All

t is hard to believe that this is my final article I would like to comment on one of the year’s more recent highlights. for the 2012-13 Bar year. How did it go by so Prior to May 1 of each year, our Committee on Professionalism reaches out to the bar associations quickly? It has been a busy and rewarding year, across the state to encourage active participation in Law I Day by hosting an event which which we will reflect upon engages the public on the rule “When the leadership of of law and the importance and celebrate later this month of a strong judicial branch of an organization is truly government. In all corners of during the Annual Meeting Georgia, our local and spe- representative of the cialty bars rise to the occasion on Hilton Head Island. I hope with well-planned, successful observances that typically you will join us there, so that I membership, the members feature recognition of local citizens who have helped pro- can personally thank you for more readily support the mote a better understanding of and encouraged greater the honor of serving as your organization and are much respect for the law. The national Law Day president and all you have more committed to it.” theme for 2013, “Realizing the Dream: Equality for All,” done to make this year a suc- acknowledges this year’s being the 150th anniversary of the issuance of the cess. Being your president has been the single greatest Emancipation Proclamation by President Abraham Lincoln and the 50th anniversary of Dr. Martin Luther honor of my legal career. King Jr.’s “I Have A Dream” speech in front of the Lincoln Memorial. We will review at the Annual Meeting, and the A special celebration of Law Day took place April Georgia Bar Journal will include, a comprehensive look 22 as the State Bar partnered with a number of local back at the past year in its August edition. This month, and specialty bar associations and the National Center

4 Georgia Bar Journal for Civil and Human Rights to host a day-long public educational event at the Bar Center. Hundreds of school children were in attendance. Spearheading the event on behalf of the State Bar were Treasurer Patrise Perkins-Hooker and Executive Committee member Rita Sheffey. Working closely with leaders from the National Center for Civil and Human Rights, Patrise and Rita did a stellar job of helping line up the program and these other co-sponsoring organizations: the Atlanta Bar Association, the Chief Justice’s Commission on Professionalism, the Gate City Bar Association, the Georgia Asian Pacific American Bar Association, the Georgia Association of Black Women Attorneys, the Georgia Association for Women Lawyers, the Georgia Hispanic Bar Association, the Multi-Bar Leadership Council, the South Asian Bar Association of Georgia and the Stonewall Bar Association of Georgia. Featured panelists included Ambassador Andrew Young, U.S. Attorney Sally Quillian Yates and many other civil rights leaders, state legislators and legal experts. The program was aimed specifically at making the connection between the American civil rights movement and the principles of human rights while providing an in-depth look at human rights violations that still exist at home and abroad, including juvenile justice violations, the use of torture, environmental abuses and the trafficking of an estimated 1 million people worldwide each year into involuntary servitude and sexual slavery. We can end such injustices only after acknowl- edging they exist. Law Day reminds us that in America, the promise of equal treatment under the law is not supposed to be some lofty objective that we hope to achieve one day. Equality was declared some 236 years ago to be a self- evident truth and one of the basic founding principles of a new nation—despite the existence of slavery and decidedly unequal rights for women at the time. Over the years, of course, significant strides have been made against discrimination based on race, gender, eth- nicity, national origin, religion, age, disability and sexual orientation. Yet today, when it comes to equal justice, the question must be asked: are we there yet? While we have made much progress, there are con- stant reminders that we have to do better. For example, during a school’s recent visit to the “Journey through Justice” program at the Bar Center, a member of the Bar staff saw a young African-American student looking at the photographs of the past presidents on the wall of the third floor, along with his father who was there on the tour. The employee heard the young child say, “There isn’t anyone who looks like us, Dad.” That hurts. We have more than 10,000 Georgia students walking down that third floor hall every year. They observe. They notice, and I don’t want any one of them to go home thinking the State Bar of Georgia isn’t an organization that they could also one day lead. That’s why we have to work harder. When the leadership of an organization is truly representative of the

June 2013 5 membership, the members more impact that it has had in promoting some people still believe they have readily support the organization the idea of equality under the law. a monopoly on morality and the and are much more committed We should also reflect on the work right to be married to the one they to it. I believe diversity in and of that remains to be done in rectify- love merely because they were itself is a positive desired thing ing injustice, eliminating all forms accidentally born heterosexual. because it allows all points of view of discrimination and putting an As lawyers, we must always to be heard and considered. It end to human trafficking and other have a keen sense of justice, in makes one stop and reconsider violations of basic human rights. all aspects of our lives. As former the framework through which you As Dr. King pointed out in his Justice Fletcher eloquently wrote: view all issues and makes you Letter from a Birmingham Jail, “[N]owhere is that notion of equal- actually take a minute and put “Injustice anywhere is a threat to ity more carefully scrutinized than yourself in someone else’s shoes justice everywhere.” in our court system. We should not before reaching any decision. I often wonder whether I would take lightly the image of justice. To In the legal profession and this have had the same courage as Dr. signify our notion of equality we nation, we still have work to do. King, U.S. Rep. John Lewis and have as a symbol of justice a woman Hopefully, it is the generation of other progressive Americans who blindfolded, with evenly-balanced students now taking the “Journey stood up against racial inequal- scales, holding a sword. The sword through Justice” tours that ity had I been an adult during the symbolizes our willingness to fight will close the gap and will say Civil Rights Movement. I like to for the rights of all our citizens. “Enough.” Enough discrimination, think I would have been right there The scales symbolize the equality enough hypocrisy, enough subju- alongside the Freedom Riders, or of treatment before the courts. And gation of one group by another, walking across the Edmund Pettus the blindfold symbolizes that the enough hatred . . . simply enough. Bridge, but admittedly it is daunt- law is not a respecter of person or This is the generation that will ing to consider risking one’s life for position.” Livingston v. State, 264 Ga. say “enough” of that and replace something you believe in. I like to 402, 420, 444 S.E.2d 748, 761 (1994), it with love. Love of your fellow think I would have done that. Fletcher, J., dissenting. man, love of the rule of law, love One of the most important The promise of equality under of equality, love of justice. But like human rights issues that presents the law is what has made America all worthy things, we must work itself to me now in my career is a beacon to other nations. Fulfilling for it. Dr. King said, “Human that of equality regardless of sexual that promise—by promoting the progress is neither automatic nor orientation, and I will continue to cause of justice, upholding the inevitable. . . . Every step toward fight for human rights, dignity and rule of law and protecting the the goal of justice requires sacri- justice for all until that dream is rights of all citizens—remains a fice, suffering, and struggle; the realized. As Dr. King said, “the work in progress. tireless exertions and passionate Arc of the moral universe is long, concern of dedicated individuals.” but it bends toward justice.” This Robin Frazer Clark is the We should use every annual is comforting to keep in mind, but president of the State Bar of Law Day as an opportunity to we must remain vigilant, espe- Georgia and can be reached at explore the movement for civil and cially when there are still “whites [email protected]. human rights in America and the only” proms in Georgia and when

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6 Georgia Bar Journal

From the YLD President

by Jon Pannell

The State of the YLD is Great

ver the past 12 months, I have had Ridge to Bainbridge to Brunswick.” As stated in that original column, “[f]rom Blue Ridge to Bainbridge to the incredible opportunity to serve Brunswick, I want to increase the efforts of the YLD in areas of the state where there are younger lawyers not the State Bar of Georgia as the presi- currently active with the Bar.” O Since the beginning of my career practicing law, dent of the Young Lawyers I have heard too often from “Finally, thank you to the other attorneys that the State Division. I am humbled by Bar was too concentrated in members of the State Bar of Atlanta and lawyers from the trust you have bestowed outside metro-Atlanta had no role in the Bar leadership. upon me to lead this great Georgia and the members of I am happy to report that your State Bar is as diverse as organization and thank you the Young Lawyers Division ever and the YLD is helping lead the way in debunking for all the words of encour- for giving me the greatest this misconception. Did you know that the agement and support you experience of my career to serve majority of the elected YLD officers are from outside met- have given me throughout you as your YLD president.” ro-Atlanta? Sharri Edenfield, the current treasurer of the this year. YLD, practices in Statesboro; Jack Long, secretary of the YLD, lives in Augusta; When I was sworn in by Justice Carley as the 66th and I live and practice in Savannah. Nine members president of the YLD in June 2012, my main goal for of the Board of Directors of the YLD are from outside the year was to increase the geographical diversity metro-Atlanta and 14 of the YLD’s committee chairs of the YLD. In fact, my first column published in the reside someplace other than Atlanta. Not that those Bar Journal in August 2012 was titled “From Blue of you who practice in metro-Atlanta are not impor-

8 Georgia Bar Journal tant members of the YLD! In fact, 60 percent of our YLD membership practices in the five-county area of metro-Atlanta. I want to thank the members of the Board of Governors for the support they have given me this year to encourage new lawyers to get involved with the YLD. We have had a record number of first-time attendees at our YLD meetings this year, and I have had numerous young lawyers tell me that they got involved with the YLD because an older lawyer in their law firm or community encouraged them to become who were once not involved with best Bar staff around and they time engaged. the YLD. and time again amaze me at what Another concern I heard before I am also excited to report that they do. Thank you to my wife and becoming president of the YLD one of the YLD’s projects, the children for managing the home- was that the State Bar had too rewrite of the Juvenile Justice Code, front while I frequently traveled to many meetings outside the state was signed into law by the gover- and from Bar meetings over the last of Georgia. I am proud to boast nor on May 2. In 2004, the YLD year. Thank you to the Executive that this year we held all of our was able to secure funding to cre- Committee of the State Bar and the YLD meetings inside our great ate a model juvenile code through Board of Governors for continuing state. Our YLD officer’s retreat the Georgia Bar Foundation. Since to support the YLD. Finally, thank and Summer Meeting was held 2006, a statewide coalition of stake- you to the members of the State Bar at Lake Oconee in August. In holders have advocated for a com- of Georgia and the members of the October, we held our Fall Meeting prehensive update to the 42-year- Young Lawyers Division for giving in Athens in conjunction with the old Juvenile Justice Code. This me the greatest experience of my Georgia-Tennessee football week- past year, the governor’s Criminal career to serve you as your YLD end. The Winter Meeting was held Justice Reform Council focused on president. I look forward to seeing in January in conjunction with reforms to Georgia’s juvenile law all of you at the Annual Meeting on the State Bar Midyear Meeting and legislation was passed unani- Hilton Head Island in June! in Atlanta and the YLD Spring mously by the Georgia General Meeting was held in April on Assembly during the recently Jon Pannell is the president of beautiful St. Simons Island. completed 2013 legislative term to the Young Lawyers Division of I am happy to report that at the rewrite and reorganize Georgia’s the State Bar of Georgia and end of my term as YLD president, juvenile law. And to think it all can be reached at jonpannell@ the state of the YLD is not only began as a project of the YLD! gpwlawfirm.com. good, it is great! Attendance at I would love to take credit for all YLD meetings is at an all-time high; of the great accomplishments of the the YLD Leadership Academy, the YLD over the last 12 months, but I Correction crowning jewel of our organization know that the only reason this year (in my humble opinion), has one has been successful is because I On page 8 of the April 2013, of its most diverse and strongest have stood on the backs of so many Volume 18, No. 6, issue of classes to date; the YLD Signature of you. Thank you to my officers the Georgia Bar Journal, the Fundraiser donated more than who have worked hand-in-hand $45,000 to Georgia CASA; Gov. with me and have been there to percentage of an appliciant’s Deal was the keynote speaker for encourage me throughout the year. gross income for eligilibity for the second year in a row for our Thank you to the YLD committee federal food nutrition programs annual YLD Legislative Luncheon; chairs, all 54 of them, who are the was incorrectly listed as “at the 2nd annual Legal Food Frenzy real reason the YLD is successful had 249 law firms and organiza- and is coined as “the service arm or below 18.5 percent. . . .” It tions register for this year’s com- of the State Bar.” Thank you to should have read “at or below petition, a 15 percent increase from our director, Mary McAfee, and 185 percent. . . .” We apologize last year; and our membership and the Bar staff who have helped me for this error. committees are full of new lawyers throughout the year. We have the

June 2013 9

A Look at the Law

The Admissibility of Scientific Evidence: A Primer on Federal Law by Hon. William S. Duffey Jr.

cientific evidence is common in judicial of expert testimony and minimize the dangers of permitting unsound science to enter the courtroom, the Federal proceedings. Expert testimony is the most Rules of Evidence and the U.S. Supreme Court’s decision in Daubert v. Merrell Dow Pharmaceuticals guide federal common vehicle through which parties can judges in ensuring that only reliable evidence is admitted S at trial to assist the jury in reaching a just outcome.5 offer technical and scientific evidence because it aids The Legal Framework for Evaluating the trier of fact in understanding the evidence or deter- the Admissibility of Expert Testimony mining an issue in the case.1 Most judges and juries The admission of expert testimony in federal courts is governed by Rule 702 of the Federal Rules of Evidence, lack the scientific training that would permit them to which states: evaluate thoroughly claims that turn on scientific ques- A witness who is qualified as an expert by knowledge, skill, experience, training, or education may tions.2 Admitting expert testimony facilitates the evalu- testify in the form of an opinion or otherwise if: ation of scientific and technical claims and evidence, (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to and helps ensure that decisions are based on scientifi- understand the evidence or to determine a fact in issue; cally sound knowledge.3 (b) the testimony is based upon sufficient facts or data; Expert testimony plays a key role in arriving at sci- (c) the testimony is the product of reliable prin- entifically sound determinations. Determining what ciples and methods; and evidence and expert testimony to admit requires care- (d) the witness has applied the principles and ful, deliberate consideration by the court to ensure the methods reliably to the facts of the case. evidence admitted is reliable and trustworthy. Not all scientific evidence is equally reliable, and Daubert sets forth the analysis courts must use to admitting scientifically unsound evidence risks confus- determine whether proffered evidence is sufficiently ing or misleading the jury, or may ultimately allow the reliable to be admissible under Rule 702. After the jury to reach an unjust conclusion.4 To obtain the benefits adoption of the Federal Rules of Evidence (FRE) in 1975,

June 2013 11 but prior to Daubert being decided under Daubert thus is process-ori- court has determined it is reliable. in 1993, courts applied the Frye test, ented.17 Judges focus on the meth- The extent to which the trial court which originated from a 1923 court odology the expert used to reach may inquire into the sufficiency of of appeals case, when assessing the his conclusions, rather than on the evidence after making the reliabil- admissibility of expert testimony.6 conclusions themselves.18 ity determination is viewed differ- Under Frye, expert testimony only ently in different appellate courts.23 was admissible when it was based Applying the Daubert Some courts exclude expert testi- on a technique or theory that was Standard mony as lacking relevance where “generally accepted” as reliable in When evaluating whether to it is insufficient to prove the matter the scientific community.7 admit expert testimony, a court for which the party seeks its intro- In Daubert, the Supreme Court considers whether: (1) the expert duction. In others, judges only are held that the Frye admissibility stan- is qualified to testify regarding the required to find that the evidence dard was inconsistent with the more matters he intends to address; (2) meets a minimal relevance thresh- liberal standard for the evaluation the expert’s methodology is suffi- old to be admissible. of evidence under the FRE.8 The ciently reliable; and (3) the expert’s After determining that evidence Supreme Court articulated a new testimony assists the trier of fact is reliable, the trial judge may con- standard in Daubert, holding that the to understand the evidence or to sider whether the evidence is “suf- Frye test had been superseded by the determine a fact in issue.19 Daubert ficiently tied to the facts of the case FRE.9 In 1999, the Supreme Court sets forth a non-exclusive checklist so that the evidence will aid the decided in Kumho Tire Company v. to use in evaluating the reliability trier of fact in resolving the dis- Carmichael that Daubert applies not of scientific expert testimony. The pute.”24 This inquiry is sometimes only to expert testimony based on factors include: described as a “fit test.” Rule 702’s scientific evidence, but also to tes- requirement that the evidence be timony based on technical or other (1) whether the expert’s tech- helpful to the trier of fact requires a specialized knowledge.10 nique or theory can be or has valid scientific connection—a fit— Under Daubert, for an expert’s been tested—that is, whether to the pertinent inquiry as a pre- testimony to be based on “sci- the expert’s theory can be chal- condition to admissibility.25 entific knowledge,” the opinion lenged in some objective sense, After a judge finds that the must be “derived by the scien- or whether it is instead simply a expert testimony is reliable and tific method.”11 At Daubert’s core subjective, conclusory approach that it sufficiently “fits” the evi- is the requirement that courts focus that cannot reasonably be dence, the judge also may evaluate “solely on principles and method- assessed for reliability; whether the evidence is nonethe- ology, not on the conclusions that (2) whether the technique or less inadmissible under FRE 403. they generate.”12 Each step of the theory has been subject to peer Under FRE 403, a court: expert’s analysis must be demon- review and publication; strated to be reliable; if any step (3) the known or potential rate May exclude relevant evidence fails the Daubert test, then the entire of error of the technique or the- if its probative value is substan- testimony is inadmissible.13 ory when applied; tially outweighed by a danger The judge serves a “gatekeeper” (4) the existence and mainte- of one or more of the follow- function in determining the admis- nance of standards and con- ing: unfair prejudice, confusing sibility of proffered expert testi- trols; and the issues, misleading the jury, mony, excluding unreliable and (5) whether the technique or the- undue delay, wasting time or irrelevant testimony. The court ory has been generally accepted needlessly presenting cumula- exercises broad discretion in deter- in the scientific community.20 tive evidence. mining whether evidence, including expert testimony, is admissible. The inquiry is flexible, and the Part of the judge’s role as gate- Courts of appeal defer substan- criteria the judge applies may vary keeper is to preclude the introduc- tially to a trial judge’s admissibility based on the facts of the case and tion of evidence that, although rele- decision.14 The critical gatekeeper the nature of the proffered testimo- vant on an issue in the case, is likely inquiry is into the scientific validity ny.21 The court is not required to to be so prejudicial, misleading or of the expert’s underlying reason- consider each of these factors, and confusing that it risks causing the ing or methodology.15 The court the court should consider any addi- jury to reach an unjust result.26 determines not only whether the tional factors that may advance its principles and methods used by Rule 702 analysis.22 Considering and Applying the expert are reliable, but also The second prong of Rule 702— the Daubert Criteria whether those principles and meth- that the expert testimony “assist Applying the Daubert criteria ods have been properly applied to the trier of fact”—addresses the is not a rigid process resulting the facts of the case.16 The inquiry relevance of the evidence after the in a uniform template to evalu-

12 Georgia Bar Journal ate whether evidence is or is not allowed to be introduced. A short N D L survey of cases analyzing each Norwitch Document Laboratory Daubert factor illustrates this point, Forgeries - Handwriting - Alterations - Typewriting although certain general themes Ink Exams - Medical Record Examinations - “Xerox” Forgeries emerge from these evaluations, as illustrated below. F. Harley Norwitch - Government Examiner, Retired Factor 1: Whether the expert’s Court Qualified Scientist - 30+ years. Expert testimony given in technique or theory can be or has excess of four hundred times including Federal and Offshore been tested—whether the expert’s 1 17026 Hamlin Boulevard, Loxahatchee, Florida 33470 theory can be challenged in some www.questioneddocuments.com objective sense, or whether it is Telephone: (561) 333-7804 Facsimile: (561) 795-3692 instead simply a subjective, conclusory approach that cannot reasonably be assessed for reliability dispositive on the issue of admis- Factor 4: The existence and Whether a theory or method can sibility. In Daubert, the Supreme maintenance of standards and or has been tested is one of the Court stated that “publication controls most important indicators of its (which is but one element of An expert’s failure to maintain reliability.27 That a theory can be peer review) is not a sine qua non proper standards and controls empirically challenged, has been of admissibility; it does not nec- weighs heavily against admissibil- tested in controlled circumstances, essarily correlate with reliability. This is especially true when and is reproducible weighs in favor ity.”31 That a theory has not been the relevant scientific community of admissibility. Epidemiological peer reviewed or published, or has established generally accepted studies are good examples of evi- that it has not been developed or professional standards governing dence that satisfies the testability tested in a context other than in the methodology the expert should criterion. These studies are car- preparation for litigation, weighs apply. The Supreme Court stated ried out with controls and ran- against admissibility. Peer review in Kumho Tire Company that the domization, generally have mea- is significant because “scrutiny objective of Daubert is to ensure the surable error rates and undergo of the scientific community is a expert “employs in the courtroom peer review. These characteristics component of ‘good science,’ in the same level of intellectual rigor ensure their reliability.28 part because it increases the like- that characterizes the practice of an The lack of epidemiological lihood that substantive flaws in expert in the relevant field.”36 This research to support a proffered methodology will be detected.”32 requirement goes to the heart of theory of causation may bear on If peer review alone was disposi- the reliability inquiry by focusing whether the theory is consid- tive, then the Frye standard of on the methodology employed and ered testable. When such stud- general acceptability in the sci- not on the conclusion reached. ies are not available, an expert’s entific community would have The reasons for requiring experts methodology may fall short of remained adequate.33 to follow objective, professionally Daubert’s reliability standard.29 accepted standards and controls are Factor 3: The known or potential An expert’s testimony may well manifest. When an expert follows rate of error of the technique or be excluded if the expert does accepted standards, his methodolo- theory when applied not test the proffered theory or gies and hypotheses may be repli- fails to identify any studies doc- A finding that there is no basis to cated, objectively challenged and umenting or testing the theory. establish a reliable error rate for a peer reviewed, all of which support If the theory cannot be tested particular methodology can weigh a finding of reliability. When an empirically, or if the expert elects against expert testimony admis- expert’s assessment is not based on not to test a theory that can be sibility when the expert applies an accepted methodology, or was tested empirically, then the court that methodology. Methodologies not conducted with any methodol- may not admit the testimony.30 should be objectively testable and ogy at all, it cannot be challenged include control groups to mini- according to these standards and Factor 2: Whether the technique mize rates of unknowable error.34 the evaluation would be reduced or theory has been subject to Expert testimony based on a tech- to an ipse dixit assessment—if an peer review and publication nique with an error rate that is not expert states it, then it must be Courts consider the peer precisely quantified may still be so. Courts do not accept ipse dixit review of a theory or technique admissible if the technique’s error assessments because they do not helpful in determining that it is rate has been demonstrated to be ensure reliability.37 When the meth- reliable, but peer review is not very low.35 odology underlying the conclusion

June 2013 13 simply is not sound, it calls into n Is the expert testifying using nosis to attribute the plaintiff’s question the validity of the expert’s anecdotal evidence, or basing disease to the defendant’s drug. conclusion. It is not sufficient for his opinion solely on a small Differential diagnosis, when prop- an expert simply to tell a trial court number of case studies? erly conducted, can be a reliable that he followed a methodology; n Has the expert engaged in methodology under Daubert. The the court must investigate whether improper extrapolation, by draw- defendant challenged the expert’s the methodology produced reliable ing an unsupported conclusion testimony because she failed to results and was applied correctly.38 from an accepted premise?39 conduct the standard diagnos- Below are examples of questions tic techniques that she normally a court might ask when evaluat- Illustrative Examples would have used to rule out poten- ing whether the characteristics of of Court Evaluation tial alternative causes for the plain- the expert’s methodology weigh tiff’s diseases when she attributed in favor of or against admissibility: of the Admissibility of them to the defendant’s drug. Expert Opinions Under The court concluded that the n Is the expert a member in good Daubert and FRE 702 expert’s testimony was not reli- standing of the relevant profes- able because she deviated from sional accrediting organization? Gibbs Patrick Farms, Inc. v. the standard protocol for differen- Has the examiner completed Syngenta Seeds, Inc., No. 7:06- tial diagnosis in several significant trainings and certifications cv-48 (HL), 2008 U.S. Dist. ways, indicating that she had not required by the organization? LEXIS 23923 (M.D. Ga. 2008) thoroughly investigated potential n Has the examination been con- alternate causes of the plaintiff’s ducted in the facilities and in The plaintiff, a farmer, sought to disease. The court considered that the manner outlined by the admit an expert’s opinion that a dis- the expert did not conduct an inter- guidelines? Is there evidence of ease that caused significant damage view as she would have in her compliance with or violation of to his crops was caused by bacteria normal practice, had only reviewed the guidelines? that originated in the defendant’s bell selections from the plaintiff’s medi- n Did the expert document his pepper seeds. Due to the low profit- cal records that were prepared by methodology and procedures? ability of bell peppers, little research her attorneys and relied without An expert’s failure to record the had been conducted on diseases that justification on the temporal rela- methodology he applied weighs affected them, and no industry stan- tionship between the plaintiff’s against finding admissibility. dard existed for testing whether the consumption of the drug and the n If the generally accepted stan- seeds were infected by the bacteria. onset of the disease.40 The court dards are followed, then does The expert applied to the bell pep- did not admit the testimony. this guarantee (or significantly per seeds a widely accepted protocol improve the likelihood of) an used to test other vegetable seeds for Rembrandt Vision accurate result? bacteria and disease. Technologies, L.P. v. n If the expert deviated from The court considered that Johnson & Johnson Vision the standards, how significant although the expert did not apply a Care, Inc., 282 F.R.D. 655 was the deviation? What effect generally accepted methodology for (M.D. Fla. 2012) did the deviation have on the testing the pepper seeds, this was not accuracy of the results? Did a case in which the expert applied The plaintiff argued that the the deviation from the stan- a “rogue methodology instead of a defendant’s contact lens design dards make it so the method- widely accepted . . . standard pro- infringed on its patent, and retained ology could not be replicated cedure,” but rather one in which a an expert to evaluate certain char- or objectively tested? Did the methodology did not exist for the acteristics of the lenses that pur- deviation from the methodol- inquiry at hand. The expert applied portedly violated the patents. The ogy introduce bias or substan- an established procedure for a simi- defendant argued that the testimo- tially increase the error rate? lar inquiry. The court found that the ny was inadmissible because the n If the expert deviated from the expert diligently applied the proce- expert’s testing procedures did not standard, was there any justifi- dure, and thoroughly documented conform to the generally accepted cation for doing so? the steps in conducting his analysis standards in the profession and n Has the methodology been and so it admitted his testimony. the expert should have applied a applied outside of a litigation different methodology. context? Is there evidence that Guinn v. AstraZeneca The court did not admit the testi- the expert applied the method- Pharmaceuticals L.P., 602 mony because of two main concerns: ology differently in preparation F.3d 1245 (11th Cir. 2010) that the expert departed significant- for litigation than he would have The plaintiff’s expert applied the ly from the standard protocols and in his regular professional work? methodology of differential diag- that the expert did not document

14 Georgia Bar Journal his testing procedures. On cross- as “reproducible testing is a hall- Conclusion examination, the expert could not mark of reliable science.”41 Whether scientific evidence recall which professional standard and, specifically, expert opin- Factor 5: Whether the technique or he used, noting that he applied one ions are admissible under FRE theory has been generally accepted of two generally accepted standards. 702 and Daubert depends on the in the scientific community He stated that he did not read the facts of a case and the applica- criteria for the standards he used. The last of the Daubert criteria tion of the Rule 702 and Daubert He had difficulty explaining how reflects the traditional Frye test. standards by the judge presid- his procedures met the standards, General acceptance of a theory or ing over the litigation. Although and at one point admitted that he technique underlying the testimony there are standards that guide the had not complied with them. He among the scientific community judge and substantial uniformity also offered no justification for his weighs in favor of its admission, in the evaluation the process, by deviation from the applicable stan- although it is not a prerequisite its nature, is case and fact specif- dards after his cross-examination. for admission.42 General acceptance ic. The feature common to each He had difficulty articulating how also is not dispositive on the court’s Daubert analysis is the judge’s he designed his test, and his account inquiry into the reliability of expert focus on the soundness of the of his testing protocol changed testimony. An accepted methodol- methodologies and processes throughout the trial. ogy may in some cases be used to experts use to reach their conclu- The expert admitted that a scien- extrapolate to those cases where sions. Diligent application of the tist reviewing his work would not none exists. The Supreme Court Daubert criteria ensures that the be able to reproduce his methodol- noted in General Electric Co. v. Joiner expert testimony that is admitted ogy because he kept no record of it, that experts often used existing data into courts is reliable and will and would realize his procedures to extrapolate and form conclu- aid the trier of fact in reaching a were inconsistent with the appli- sions.43 This practice is acceptable just decision. cable standard. Declining to admit as long as the gap between the data Judge Duffey is grateful for the the expert’s testimony, the court and the opinion is not “too great,” capable assistance that Jennifer noted its serious concern that the and connected by something other C. Bellis provided in preparing expert’s test was not reproducible, than just the opinion of the expert.44 this article.

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61058 GA Bar Ad.indd 1 12/5/12 4:50 PM Hon. William S. Rembrandt Vision Techs., L.P. v. the best statistical evidence of Duffey Jr. serves as a Johnson & Johnson Vision Care, causation.”). U.S. District Judge for Inc., 282 F.R.D. 655, 666 (M.D. 29. Kilpatrick v. Breg, Inc., No. Fla. 2012) (“Daubert does not ask 08-10052-CIV-MOORE/ the Northern District courts to evaluate whether an SIMONTON, 2009 U.S. Dist. of Georgia. Duffey expert’s opinion is correct; instead, LEXIS 76128, at *25-*26 (S.D. previously served as it requires courts to determine Fla. June 25, 2009) (The expert the U.S. attorney for the Northern whether the expert has used a offered no epidemiological District of Georgia. Before his reliable methodology.”). studies on human populations to 19. Quiet Tech. DC-8, Inc. v. Hurel- support its theory of causation, appointment as U.S. attorney, Dubois UK Ltd., 326 F.3d 1333, and simply extrapolated from Duffey was a partner at King & 1340-41 (11th Cir. 2003). small observational studies on Spalding in Atlanta. From 1994 to 20. Daubert, 509 U.S. at 593-94. humans and from studies on 1995, Duffey left private practice 21. Id. at 594. animal population to large human to serve as deputy independent 22. Quiet Tech. DC-8, Inc., 326 F.3d at populations. The court found that counsel in charge of the Arkansas 1341. this methodology was unreliable 23. Manual for Complex Litigation because the expert did not support phase of the Whitewater 481 (Federal Judicial Center, 4th the validity of his extrapolation investigation. He rejoined King & ed. 2004). from small to large populations, Spalding as a partner and his 24. Daubert, U.S. 509 at 591-592. or from animal to human practice included complex civil 25. Id. populations.). and criminal litigation, focusing 26. Baldonado v. Wyeth, No. 04 30. Sumner v. Biomet, Inc., 434 Fed. C 4312, 2012 U.S. Dist. LEXIS Appx. 834, 842 (11th Cir. 2011) on trade secret, corporate 124287, at *16 (N.D. Ill. Aug. 31, (The expert could not explain the espionage and fraud matters. 2012); United States v. Pavlenko, mechanism behind his theory 845 F. Supp. 2d 1321, 1327-1328 with certainty “without doing Endnotes (S.D. Fla. 2012) (In weighing the experiments or … calculations, 1. Daubert v. Merrell Dow Pharms., relevant considerations under which would be incredibly 509 U.S. 579, 591 (U.S. 1993). Rule 403, the court determined difficult to do,” so the court found 2. Reference Manual on Scientific there was a danger that the jury his theory virtually incapable Evidence 4 (Federal Judicial might accord undue weight to of being tested.); Zwillinger v. Center, 2nd ed. 2000). expert’s polygraph evidence Garfield Slope Hous. Corp., No. 3. Id. offered to validate the defendant’s CV 94-4009 (SMG), 1998 U.S. Dist. 4. Id. testimony); United States v. LEXIS 21107, at *11-*12 (E.D.N.Y. 5. Daubert, 509 U.S. at 589. Arthur, No. 10-20753-CR-SEITZ, Aug. 17, 1998) (The expert based 6. Daubert, 509 U.S. at 587; Frye v. 2011 U.S. Dist. LEXIS 96314, at his opinions on research that he United States, 293 F. 1013 (D.C. *9 (S.D. Fla. Aug. 29, 2011) (The had not empirically tested, even Cir. 1923). court determined that the expert’s though this underlying research 7. Id. at 584. polygraph evidence, if admitted, was the kind of scientific inquiry 8. Id. at 589. would constitute impermissible that lent itself to empirical testing, 9. Id. at 588. bolstering of another witness’s and so the court found his 10. Kumho Tire Co. v. Carmichael, 526 testimony.); United States v. Evans, testimony inadmissible.). U.S. 137 (U.S. 1999). 469 F. Supp. 2d 1112, 1115 (M.D. 31. Daubert, 509 U.S. at 593. 11. Daubert, 509 U.S. at 590 (“In short, Fla. 2006) (The court determined 32. Id. the requirement that an expert’s that the jury could easily conclude 33. Allison v. McGhan Med. Corp., testimony pertain to ‘scientific that ‘passing’ the polygraph 184 F.3d 1300, 1313 (11th Cir. knowledge’ establishes a standard test had more significance than 1999); Gibbs Patrick Farms, Inc. of evidentiary reliability.”). justified.). v. Syngenta Seeds, Inc., No. 7:06- 12. Id. at 595. 27. Daubert, 509 U.S. at 593 (“Scientific cv-48 (HL), 2008 U.S. Dist. LEXIS 13. McClain v. Metabolife Intern., Inc., methodology today is based on 23923, at *47-*48 (M.D. Ga. 2008) 401 F.3d 1233, 1245 (11th Cir. 2005). generating hypotheses and testing (The expert’s methodology had 14. Id. at 1238. them to see if they can be falsified; not been subject to publication 15. Manual for Complex Litigation indeed, this methodology is or peer review, so the court 476 (Federal Judicial Center, 4th what distinguishes science from considered the lack of published ed. 2004). other fields of human inquiry.”); data but weighed this factor less 16. Id. at 473. Haggerty v. Upjohn Co., 950 F. heavily because no alternate 17. Id. Supp. 1160, 1163-1164 (S.D. Fla. methodology had been subject to 18. Smelser v. Norfolk Southern 1996) (“Whether the theory or peer review.); Bickel v. Pfizer, Inc., Railway Co., 105 F.3d 229, 303 methodology has been subjected 431 F. Supp. 2d 918, 924 (N.D. Ind. (6th Cir. 1997) (“When evaluating to the scientific method is the most 2006) (The expert’s theory was reliability, the trial court must significant of the Daubert factors.”). not peer reviewed, and the court focus on the soundness of the 28. Rider v. Sandoz Pharms. Corp., rejected the plaintiff’s argument expert’s methodology and not the 295 F.3d 1194, 1198 (11th Cir. 2002) that expert testimony should be correctness of his conclusions.”); (“Epidemiology is considered admissible despite its novelty,

16 Georgia Bar Journal because there was no evidence reliable methods of estimating the Care, Inc., 282 F.R.D. 655 (M.D. that any literature supporting error rate suggested it was very Fla. 2012); Smelser v. Norfolk S. the theory was forthcoming. The low. The court determined that Ry., 105 F.3d 299, 303 (6th Cir. court noted that it was not the the absence of significant numbers 1997) (The expert’s testimony novelty of the expert’s theory that of false positives in practice, the was improperly admitted where called for its exclusion; it was absence of false positives in an the expert failed to document the lack of a reliable scientific FBI survey, and the results from adequately testing conditions methodology, and application of an FBI statistical experiment all and the rate of error so the that methodology, that warranted showed an extremely low error test could be repeated and its exclusion.). rate that weighed in favor of results verified and critiqued.); 34. Zwillinger v. Garfield Slope Hous. admissibility.). Morehouse v. Louisville Ladder Corp., No. CV 94-4009 (SMG), 36. Kumho Tire Co., 526 U.S. at 152. Group LLC, No. Civ. A 3:03- 1998 U.S. Dist. LEXIS 21107, at 37. General Electric Co. v. Joiner, 522 887-22, 2004 U.S. Dist. LEXIS *18 (E.D.N.Y. Aug. 17, 1998) (The U.S. 136, 146 (1997). 21766, 2004 WL 2431796, at *7 court found the expert’s work was 38. McClain v. Metabolife Intern., Inc., (D. S.C. June 28, 2004) (The likely to suffer from a high rate of 401 F.3d 1233, 1253 (11th Cir. 2005). court excluded the expert’s error because he failed to develop 39. Moore v. Ashland Chem., Inc., testimony in part because the an objective test for determining 151 F.3d 269, 279 (5th Cir.1998) expert failed to record his the cause of the plaintiff’s alleged (The court excluded the expert hypothesis testing or include disease and failed to employ testimony because it was based on relevant details in his report.); a control group as part of his unsupported extrapolations.). Black v. Rhone-Poulenc, Inc., 19 study.); Kilpatrick v. Breg, Inc., 40. Westberry v. Gislaved Gummi F. Supp.2d 592, 598 (S.D.W. Va. No. 08-10052-CIV-MOORE/ AB, 178 F.3d 257, 265 (4th Cir. 1998 ) (The court determined SIMONTON, 2009 U.S. Dist. LEXIS 1999) (“Differential diagnosis that an expert’s failure to 76128, at *25-*26 (S.D. Fla. June 25, that fails to take serious account document his study weighed 2009) (The court determined that of other potential causes may be against admissibility because the expert’s extrapolation from a so lacking that it cannot provide “independent reconstruction small sample to a large population a reliable basis for an opinion would be exceedingly difficult if would leave an unexplained 40% on causation.”); In re Paoli R.R. not impossible.”). error rate that weighed strongly Yard PCB Litig., 35 F.3d 717, 42. Daubert, 509 U.S. at 594. against admissibility.). 759 (3d Cir.1994) (“[A]t the core 43. General Electric Co. v. Joiner, 522 35. United States v. Mitchell, 365 of differential diagnosis is a U.S. 136, 146 (1997). F.3d 215, 241 (3d Cir. 2004) requirement that experts at least 44. Id.; Gibbs Patrick Farms, Inc. v. (The error rate for fingerprint consider alternative causes.”). Syngenta Seeds, Inc., No. 7:06- identification had not been 41. Rembrandt Vision Techs., L.P. cv-48 (HL), 2008 U.S. Dist. LEXIS precisely quantified, but several v. Johnson & Johnson Vision 23923, at *47-*48 (M.D. Ga. 2008).

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June 2013 17 A Look at the Law

Recent Advances in International Arbitration in Georgia: Winning the Race to the Top by Stephen L. Wright and Shelby S. Guilbert Jr.

ey recent developments propel Georgia of judicial aid to enable successful arbitration while nonetheless leaving parties free to structure the dispute forward as a desirable jurisdiction for resolution process that works best for them. Complementing the statutory innovation are recent international arbitration proceedings and pro-arbitration decisions from the 11th Circuit and K state courts in Georgia confirming the local judiciary’s promise to increase international trade and investment strong support for international arbitration, setting Georgia apart from other U.S. jurisdictions where judi- in the state. Although Georgia is already an arbitration- cial support for international arbitration is less clear. Finally, amendments to the State Bar Rules pave the friendly jurisdiction, these developments create an even way for easier appearance by foreign counsel in international arbitral hearings in the state and otherwise to more hospitable environment for international arbitral provide services on a temporary and limited basis. proceedings. Together with the state’s well-known rep- Georgia’s New International Arbitration Code: A Strong utation as a transportation hub and place of hospitality, Legal Framework to Support the advances in rules for international arbitration pro- International Arbitration in Georgia Last year, Gov. Deal signed into law the new SB ceedings redound positively for the economy at large 383, replacing Part 2 of the Georgia Arbitration Code pertaining to international transactions with a new and increase opportunities for all Bar members.1 Georgia International Commercial Arbitration Code. Although the pre-existing international arbitration This article examines the recent confluence of code was pioneering when first adopted some 25 years developments promoting international arbitration in ago, countries around the world have been updating Georgia. Perhaps the single most important develop- their own law to keep pace with changes in practice ment in this regard is the passage and signing into stemming from the increased use of arbitration in law by Gov. Nathan Deal in 2012 of a new Georgia increasingly globalized commercial trade and transac- International Commercial Arbitration Code (the ICA tions.3 When former senator now Judge Bill Hamrick Code).2 With enhancements to the widely adopted was a member of the Georgia Senate and introduced United Nations Commission on International Trade SB 383 last year, he declared, “Amending Georgia’s Law (UNCITRAL) international model arbitration current code to incorporate internationally recognized code, the new ICA Code targets an optimal balance law is a step in the right direction towards becoming a

18 Georgia Bar Journal prominent venue for international International Commercial Greater Uniformity and commercial arbitration.”4 Arbitration (the Panama Predictability The new ICA Code went into Convention),9 was in its time pro- In basing the new ICA Code effect on July 1, 2012, and applies gressive and continues to provide on the Model Law, the Georgia to all international commercial a firm foundation for the enforce- Legislature directed that “regard arbitrations in Georgia.5 The ICA ability of international arbitration shall be given to its international Code itself is based primarily agreements and international arbi- origin and to the need to promote upon the 1985 UNCITRAL Model tral awards in the United States. uniformity in its application.”11 Law on International Commercial Yet with 90 years in service and The Model Law has been the sub- Arbitration (the Model Law), as little updating, the FAA and ancil- ject of extensive, well-publicized amended in 2006.6 In basing its lary laws do not reflect changes commentary and case law that new ICA Code on the Model Law, in the global commercial envi- will aid Georgia courts and prac- Georgia now joins more than 50 ronment and provide only lim- titioners in applying the new ICA civil and common law jurisdic- ited guidance on potentially critical Code.12 At the same time, foreign tions around the world that have issues that often arise in interna- parties and their counsel will find adopted some version of the tional arbitrations today, such as greater predictability in the use Model Law.7 whether an international arbitral of the new ICA Code and have Many may ask about the Federal tribunal has the authority to award greater comfort with Georgia as a Arbitration Act (FAA), which equitable relief, or standards for suitable venue for arbitration. is already applicable, and pro- judicial assistance to assist par- vides the rules for international ties in the taking of evidence for Clarification on the Role of arbitration proceedings. The FAA, use in an arbitral hearing. As the Georgia Courts in Facilitating along with the Convention on FAA does not exclude state rules International Arbitration the Recognition and Enforcement on international arbitration,10 the One highly prized advantage of of Foreign Arbitral Awards of Georgia state legislature stepped arbitration, both in domestic and June 10, 1958 (the New York in to provide a modern legal international settings, is the ability Convention),8 and the Inter- framework for the promotion of of parties to structure the dispute American Convention on international arbitration. resolution process as they see best,

June 2013 19 free from excessive judicial interfer- important respects that give the The 11th Circuit strongly declared ence. Yet because arbitrators lack ICA Code a definite Georgia fla- its support for international arbitra- the coercive powers of the state, vor. For example, in a state blessed tion, holding that an international occasions arise where courts must with 159 counties, the Model Law’s arbitration award issued in a U.S. be relied upon to enforce arbitration provision for centralized judicial proceeding is subject to vacatur only agreements and arbitral awards. supervision22 would have required on the grounds set forth in Article Georgia’s new ICA Code attempts an amendment to the Georgia V of the New York Convention,27 in numerous ways to tread the fine Constitution. Georgia’s new ICA thereby being one of few federal line between providing for judi- Code instead provides by default circuits to expressly reject “manifest cial assistance where needed while that supervisory functions be per- disregard of the law” as a permis- avoiding excessive interference. formed by the Superior Court in sible ground.28 The 11th Circuit is Independence of the parties is any county where any portion of the only federal circuit to elimi- preserved as the ICA Code limits the hearing has been conducted, nate domestic arbitration law as judicial intervention in arbitral pro- although parties remain free to a basis for vacating international ceedings to those instances called jointly select the court for the exer- arbitration awards and to find out in the ICA Code.13 Courts cise of these functions.23 domestic law exclusions trumped must refer disputes to arbitra- In another Georgia enhance- by the New York Convention.29 In tion where so provided in a writ- ment, the ICA Code provides that 2012, the 11th Circuit became the ing unless the provision is found arbitrators may issue subpoenas only circuit where federal judicial void or unenforceable for one of a for attendance of witnesses and enforcement of discovery measures limited number of reasons.14 The for the production of records and under 28 U.S.C. § 1782 extends to new ICA Code expressly incor- other evidence.24 By contrast, the foreign private arbitral proceed- porates the “competence-compe- generic provisions in the Model ings.30 In short, federal courts in the tence” and separability principles, Law give little guidance on how 11th Circuit follow the fundamental which affirm arbitrators’ author- courts should assist an arbitral tri- principle that the judiciary must ity to rule on questions relating to bunal in the taking of evidence.25 “ensure arbitration is an alternative their own jurisdiction, including Fear of protracted and expen- to litigation, not an additional layer those on the validity and scope of sive discovery often discourages in a protracted contest.”31 an arbitration agreement.15 parties and counsel in civil law Georgia state courts have likewise While assuring the indepen- countries from arbitration in the made exceedingly clear their sup- dence of the arbitral process, the U.S. This fear is addressed under port for arbitration, and refrain from new ICA Code also brings Georgia the ICA Code in the discretion- undue interference with arbitral law current with international prac- ary aspect of subpoena issuance, proceedings. Grounds for vacatur of tice16 by allowing judicial enforce- whereby the arbitrator has an abil- an arbitration award are “among the ment of interim measures ordered ity to limit discovery from becom- narrowest known to the law.”32 The in the arbitration proceedings.17 ing overly burdensome and time- Supreme Court of Georgia declared Interim measures may, for exam- consuming. The parties are in any the grounds for vacating an award ple, protect property and preserve event assured of obtaining a list expressly enumerated in Georgia’s it from dissipation for the eventual of witnesses for the hearing and domestic arbitration code as the enforcement of an arbitral award.18 being allowed to examine and sole grounds for such action,33 a Resort to Superior Court enforce- copy relevant documents.26 rule which should apply under the ment of interim measure orders is new ICA Code as well. Where “no expressly permitted.19 As a corol- The Georgia Judiciary’s ground exists for vacating or modi- lary, provision in the arbitration Strong Support for fying the award, it is the duty of the agreement for interim measures court to confirm it.”34 and their judicial enforcement does International Arbitration The strong support of the local not alone undermine enforceability Having a progressive interna- state and federal judiciary in Georgia of the arbitration agreement.20 In a tional arbitration code is critical for for arbitration will encourage con- similar manner, interim awards are efforts to raise Georgia’s stature as fidence that international arbitra- likewise judicially enforceable.21 a center for international arbitral tion agreements and awards will be activity. A great code is worth- upheld under the new ICA Code. Georgia Enhancements to less, however, without a judiciary the Model Law ready to enforce it. Fortunately, New Georgia Bar Rules Although the Georgia Legislature state and federal courts in Georgia Welcome International used the Model Law as its starting have repeatedly affirmed Georgia point when drafting the interna- as one of the most pro-arbitration Business tional arbitration code, it departed jurisdictions in the United States, Georgia boasts an expanded from the Model Law in several if not the world. port in Savannah and the world’s

20 Georgia Bar Journal busiest airport, with direct flight 3. Permanent Practice as a well-poised to further grow inter- connections to more than 90 Foreign Legal Consultant, where national business in the state. To international destinations in 55 a foreign lawyer practices in promote the state’s stature as a hub countries. Hotel and conference Georgia on matters governed by of international arbitration, a new facilities in the state are top- non-U.S. law, but does not hold organization has been formed: the rated and benefit from world- himself or herself out as a fully Atlanta International Arbitration renowned southern hospitality licensed member of the State Bar Society (AtlAS). Its first annual con- and provide a much better value of Georgia. ference in April 2012 was a huge proposition than many interna- 4. Pro Hac Vice Admission, success and featured some of the tional locations. With the global- where a foreign lawyer associates most prominent names in interna- ization of business comes the glo- with a member of the State Bar of tional arbitration. Attendees came balization of the practice of law, Georgia in a particular matter. from more than 23 countries, and as lawyers increasingly follow 5. Full Licensure as a Georgia the proceedings won notice in sev- their clients around the world to Lawyer, whereby a foreign- eral international publications.41 support commercial transactions trained lawyer actually sits for AtlAS held the 2013 conference or to represent their clients in the Georgia bar examination and in Atlanta on April 21-23. The con- cross-border disputes. becomes licensed to practice law ference theme was “Convergence Rules that address this real- in the state of Georgia.36 and Divergence in International ity directly and thoughtfully tend to Arbitration Practice” and featured make a jurisdiction a more attractive Georgia is now the only Bar in leading practitioners and scholars place not only for international arbi- the United States that has adopted from around the world. Panels tration, but also for global businesses specific rules and policies govern- focused on experiences “in the to invest, and also reduce the risk ing all five of these categories of trenches” in proceedings around that foreign lawyers inadvertently activity,37 which are often referred the world, issues with enforcement engage in the unauthorized practice to as the “foreign lawyer clus- of interim and final measures and of law. After changes adopted by the ter.”38 Indeed, recently amended awards, matters involving sover- Supreme Court of Georgia on Dec. 1, commentary to Georgia Rule of eign actors, drafting arbitration 2012, Rule 5.5(e) of the Georgia Rules Professional Conduct 5.5(e)(3), agreements and developments of Professional Conduct stands which governs the temporary in discovery availability under revised to encourage a greater role practice of law by international 28 U.S.C. § 1782. More details for international counsel alongside practitioners in Georgia, goes are available at AtlAS’s website domestic attorneys representing cli- beyond the ABA commentary at www.arbitrateatlanta.org. ents in the state. The rule contin- to ABA Model Rule 5.5, further ues to prohibit international counsel confirming Georgia’s openness to Stephen L. Wright is from a “systematic and continuous international practitioners.39 an arbitrator, mediator presence” in the state, but permits Georgia’s new rules provide and attorney who 35 temporary practice. for a more hospitable locale for practices with Taylor The change reflects the five involvement of foreign attorneys English Duma LLP in clusters of activities identified in arbitration seated in the state Atlanta. He focuses on by the American Bar Association than other states. For example, complex commercial, construction Task Force on International Trade California Rule of Court No. 9.43,40 in Legal Services as ways in which which governs the ability of attor- and securities litigation and international lawyers might want neys who are not members of the arbitration domestically and to practice in a U.S. jurisdiction State Bar of California to act as internationally. His experience in the like Georgia: counsel in international arbitra- international realm stretches back to tions seated in California, allows the 1980s when he edited the 1. Temporary Transactional attorneys admitted to the bars of Boston University International Law Practice, or “fly in-fly out” prac- other states to participate in inter- Journal and studied European Union tice, where a foreign lawyer flies national arbitrations, but does not law in Germany under a Fulbright into Georgia for negotiations or permit foreign attorneys who are Fellowship. He can be reached at a transaction with a company not otherwise admitted in another [email protected]. with Georgia operations. U.S. jurisdiction to participate. 2. Foreign-licensed In-House With the new ICA Code, a fed- Shelby S. Guilbert Jr. Counsel, such as where a foreign eral and state judiciary strongly multinational client with opera- disposed in favor of arbitration, is a counsel in King & tions in Georgia may want one and the liberalized rules for par- Spalding’s business of its in-house lawyers to work in ticipation of international attorneys litigation group who Georgia for a limited time. and parties, Georgia now stands specializes in cross

June 2013 21 border commercial disputes and With the world’s busiest airport to occupy the entire field of the representation of policyholders in Atlanta, two deep water ports, arbitration.” Volt Info. Scis. v. in insurance coverage recovery one of the top three distribution Bd. of Trustees, 489 U.S. 468, 477 cities in the country and the third- (1989). matters. Guilbert has represented highest concentration of Fortune 11. O.C.G.A. § 9-9-23 (2012). clients in international arbitrations 500 companies in the United States, 12. The legislative history of the under the rules of the International global trade is one of Georgia’s UNCITRAL Model Law and Chamber of Commerce, the AIDA greatest competitive strengths. the 2006 Amendments is Reinsurance and Arbitration Metro Atlanta Chamber, http:// available at www.uncitral.org. www.metroatlantachamber. To promote greater uniformity Society (U.K.), the United Nations com/why-metro-atlanta (last in the application of model law Commission on International Trade visited Apr. 2, 2013); Georgia provision, UNCITRAL also Law and the Singapore Ports Authority, http://www. has begun collecting case law International Arbitration Centre, gaports.com (last visited Apr. 2, from UNCITRAL Model Law and also has represented clients in 2013). In Atlanta alone, there are jurisdictions. See, e.g., UNCITRAL domestic arbitrations under the 67 consulates and government- 2012 Digest of Case Law on the sponsored trade organizations, 48 Model Law on International AAA, JAMS, ARIAS and CPR Rules, bi-national chambers of commerce Commercial Arbitration, available as well as litigation in state and and approximately 2,800 at http://www.uncitral.org/pdf/ federal courts. Guilbert is the vice international businesses from some english/clout/MAL-digest-2012-e. chair of the Legislative Working 65 countries that have established pdf. Group of the Atlanta International their U.S. headquarters. Metro 13. O.C.G.A. § 9-9-26 (2012). Atlanta Chamber, http://www. 14. Id. § 9-9-29(a). Such agreements Arbitration Society (AtlAS), a metroatlantachamber.com/ may be challenged as with other member of the International/ economic-development/global- contractual agreements for fraud, London subcommittee of the ABA commerce (last visited Apr. duress or unconscionability. Triad Insurance Coverage Litigation 2, 2013). In 2010, $28.7 billion Health Mgmt. of Ga., III, LLC v. Committee and was named a in exports and $60.2 billion in Johnson, 298 Ga. App. 204, 209, 679 rising star by Georgia Super imports passed through Georgia’s S.E.2d 785, 790 (2009). A finding ports. Jacques Couret, Ex-Im Bank that the balance of a contract Lawyers in 2012 and 2013. Opens Atlanta Center, Atlanta is void will not, without more, Bus. Chron., Aug. 15, 2012, http:// render the arbitration agreement Endnotes www.bizjournals.com/atlanta/ void. O.C.G.A.§ 9-9-37(1) (2012). 1. A recent study shows that news/2012/08/15/ex-im-bank- The Code also broadly defines arbitration proceedings have a opens-atlanta-center.html. “arbitration agreement” to mean significant and positive impact on 4. Bill Hamrick, Sen. Bill Hamrick “an agreement by the parties to regional economies. See Charles Files Legislation to Revise submit to arbitration all or certain River Associates, Arbitration in Georgia’s International disputes that have arisen or may Toronto: An Economic Study Commercial Arbitration Laws, arise between them in respect of a (2012), available at http:// Times-Georgian, Feb. 7, 2012, defined legal relationship, whether www.crai.com/uploadedFiles/ http://www.times-georgian.com/ contractual or not,” and confirms Publications/Arbitration%20 pages/full_story/push?blog-entry- that arbitration agreements “may in%20Toronto%202012-09-06.pdf. Sen-+Bill+Hamrick+Files+Legislati be in the form of an arbitration This private study, conducted on+to+Revise+Georgia%E2%80%9 clause in a contract or in the form for Arbitration Place in Toronto, 9s+International+Commercial+Arb of a separate agreement.” Id. § 9-9- found that arbitration activity in itration+Laws%20&id=17443624. 22(a)(2). that region would generate $256 5. O.C.G.A. § 9-9-21(a) (2012). 15. A party challenging an million in economic activity in 2012 6. UNCITRAL Model Law on international arbitration tribunal’s and an estimated $273 million for International Commercial decision that it has jurisdiction 2013. Id. at 4. International arbitral Arbitration [hereinafter may appeal that decision to a proceedings typically require UNCITRAL Model Law], available court within 30 days, but the the use of local counsel, expert at http://www.uncitral.org/ filing of an appeal will not stay witnesses, translation services, pdf/english/texts/arbitration/ the arbitral proceedings, thus court reporters and arbitrators, ml-arb/07-86998_Ebook.pdf. reducing the opportunity for thereby benefiting the local bar, 7. See list of Model Law jurisdictions posing meritless procedural without burdening the local courts. at http://www.uncitral.org/ hurdles. Id. § 9-9-37(1)(3). International arbitration also brings uncitral/en/uncitral_texts/ 16. See, e.g., Int’l Chamber Com. revenues to the local hospitality arbitration/1985Model_ R., Art. 28, available at http:// industry when foreign parties and arbitration_status.html. www.iccwbo.org/products- their lawyers attend arbitration 8. See 9 U.S.C. §§ 201-208. and-services/arbitration-and- hearings in Georgia. 9. Id. §§ 301-307. adr/arbitration/icc-rules-of- 2. O.C.G.A. §§ 9-9-20 to 9-9-59 (2012). 10. The “FAA contains no express arbitration/; London Ct. Int’l Arb. 3. Georgians have a huge interest in pre-emptive provision, nor does R., Art. 25, available at http:// promoting international commerce. it reflect a congressional intent www.lcia.org/Dispute_Resolution_

22 Georgia Bar Journal Services/LCIA_Arbitration_Rules. 26. O.C.G.A. § 9-9-49(c) (2012). 36. Feb. 4, 2012, Memorandum aspx; Int’l Arb. R., Art. 21, available Other Georgia enhancements from ABA Task Force on at www.adr.org. to the UNCITRAL Model Law International Trade in Legal 17. See generally O.C.G.A. § 9-9- include streamlined provisions Services to State Supreme 27 (2012). Judicial assistance on the procedures for applying Courts and State and Local Bar is also available where parties for interim relief, id. § 9-9-38; a Associations, International Trade have failed to agree upon the provision allowing non-Georgia in Legal Services and Professional procedure for appointing an parties to opt out of certain Regulation: A Framework for arbitrator or arbitrators, id. grounds for judicial review of an State Bars Based on the Georgia § 9-9-32(c); where an agreed- arbitration award, id. § 9-9-56(e); Experience, available at http:// upon method for appointing and a provision permitting the arbitrateatlanta.org/wp-content/ arbitrators fails due to actions consolidation of multiple arbitral uploads/2011/08/FINAL-ITILS- by any party, party-appointed proceedings upon the agreement toolkit-2-4-12.pdf [hereinafter Feb. arbitrator or third party such as of the parties, id. § 9-9-46(d). 4, 2012, ABA Memo]. an arbitral institution, id. § 9-9- 27. Indus. Risk Insurers v. M.A.N. 37. See Ga. Rules of Prof’l Conduct R. 32(d); where a party challenges Gutehoffnungshutte GmbH, 141 5.5(e) (temporary practice of law), the appointment of a particular F.3d 1434, 1445 (11th Cir. 1998). 5.5(f) (foreign licensed in-house arbitrator, id. § 9-9-34; where 28. Frazier v. CitiFin. Corp., 604 F.3d counsel); Sup. Ct. of Ga. Rules an arbitrator becomes unable 1313, 1323-24 (11th Cir. 2010). In Governing Admission to the to perform his or her functions other leading arbitral centers in Practice of Law, Part E (Foreign or otherwise refuses to do so the United States, such as New Legal Consultants); Ga. Unif. without undue delay, id. § 9-9- York, “manifest disregard [of the Super. Ct. R. 4.4 (pro hac vice 35; where a party challenges law] remains a valid ground for admission of foreign lawyers); a tribunal’s interim award on vacating arbitration awards.” T.Co State of Georgia Board of Bar jurisdiction, id. § 9-9-37(3); where Metals, LLC v. Dempsey Pipe & Examiners, Waiver Process and a tribunal needs court assistance Supply, Inc., 592 F.3d 329, 339-40 Policy Admission to Practice, in the issuance of subpoenas for (2d Cir. 2010). available at https://www. witnesses or other evidence, id. 29. See Bautista v. Star Cruises, 396 gabaradmissions.org/waiver- § 9-9-49; and where a party seeks F.3d 1289, 1302 (11th Cir. 2005). process (Georgia Bar admission to set aside an arbitration award 30. See In re Consorcio Ecuatoriano de process for foreign-educated for one of the limited enumerated Telecomunicaciones S.A., v. JAS lawyers). grounds in the code, id. § 9-9-56. Forwarding (USA), Inc., 685 F.3d 38. Feb. 4, 2012, ABA Memo, supra 18. Examples of interim measures can 987, 996-97 (11th Cir. 2012). note 36, at 6. be found in Fed. R. Civ. P. 64(b). 31. B.L. Harbert Int’l, LLC v. Hercules 39. Compare Ga. Rules of Prof’l 19. O.C.G.A. § 9-9-38(f) (2012). Judicial Steel Co., 441 F.3d 905, 907 (11th Conduct R. 5.5 cmts. with Model refusal to recognize or enforce Cir. 2006), overruled on other Rules of Prof’l Conduct R. 5.5 such interim measures may be grounds by Hall Street Assocs., cmts. based solely on those factors L.L.C. v. Mattel, Inc., 552 U.S. 576 40. Cal. R. Ct. R. 9.43, available enumerated in O.C.G.A. § 9-9-39. (2008). at http://www.courts. 20. Id. § 9-9-30. 32. Malice v. Coloplast Corp., 278 Ga. ca.gov/cms/rules/index. 21. Id. § 9-9-22(a)(3). App. 395, 397, 629 S.E.2d 95, 98 cfm?title=nine&linkid=rule9_43. 22. See Explanatory Note by the (2006). 41. See, e.g., Stephen L. Wright, UNCITRAL secretariat on the 33. Greene v. Hundley, 266 Ga. 592, “The United States and Its Place 1985 Model Law on International 595, 468 S.E.2d 350, 353 (1996) in the International Arbitration Commercial Arbitration as (reversing Court of Appeals’ System of the 21st Century: amended in 2006, cmt. 22, in decision that an arbitration Trendsetter, Outlier of One in a UNCITRAL Model Law, supra award may be vacated if Crowd?”— Inaugural Conference note 6, at 29. court determines there was no of the Atlanta International 23. O.C.G.A. § 9-9-27 (2012). evidence supporting it); accord Arbitration Society—Atlanta, 24. Id. § 9-9-49(a). The ICA Code here Johnson Real Estate Invs., LLC v. 15-17 April 2012, 2012 Paris again makes judicial aid available, Aqua Indus., 282 Ga. App. 638, J. Int’l Arb. 741, available at this time for enforcement of 642, 639 S.E.2d 589, 594 (2006); http://arbitrateatlanta.org/ subpoenas with treatment equal to Ralston v. City of Dahlonega, 236 wp-content/uploads/2012/11/ that in civil actions. Ga. App. 386, 387, 512 S.E.2d 300, Cahiers-de-lArbitrage-2012- 25. UNCITRAL Model Law Article 301 (1999). n%C2%B03-Br%C3%A8ves- 27 states: “The arbitral tribunal or 34. Lanier Worldwide, Inc. v. comptes-rendus-de-colloques-e.... a party with the approval of the Bridgecenters at Park Meadows, pdf (summary of proceedings); arbitral tribunal may request from LLC, 279 Ga. App. 879, 880, 633 see also Reports of the Conference a competent court of this State S.E.2d 49, 51 (2006) (quoting Rapporteurs, available at http:// assistance in taking evidence. The Universal Mgmt. Concepts, Inc. v. arbitrateatlanta.org/wp-content/ court may execute the request Noferi, 270 Ga. App. 212, 214, 605 uploads/2011/11/AtlAS- within its competence and S.E.2d 899, 901 (2004)). Conference-Report1.pdf (full according to its rules on taking 35. Ga. Rules of Prof’l Conduct R. report of proceedings). evidence.” 5.5(e).

June 2013 23 GBJ Feature

A Thousand Military Cases for Georgia Lawyers by Norman E. Zoller

“As a veteran and lawyer, I have found that participation in the Military Legal Assistance Program (MLAP) is both rewarding and helpful in my law practice. My firm is geared toward estate and long term care planning, where I may assist many older veterans, but there is a great need to help currently serving active duty military members as well. Because of MLAP and the support and training I acquired through them, I have confidence to accept referrals and cases that I may not have otherwise received. These cases permit me to provide a rewarding public service while at the same time increase my business and revenues.”—Victoria L. Collier, Decatur attorney

t’s been slightly more than three years since “Showing our appreciation to America’s active duty military personnel, veterans and their families has the State Bar of Georgia launched its Military become a national priority in recent years, through programs like the Obama Administration’s ‘Joining Forces’ Legal Assistance Program (MLAP), and the employment and education initiatives, spearheaded I by First Lady Michelle Obama and Dr. Jill Biden,” said program has connected more than a thousand military State Bar President Robin Frazer Clark. “I am proud that the State Bar of Georgia has taken the lead in repaying service members and veterans with lawyers who have those who have made so many sacrifices on our behalf with the successful start of our Military Legal Assistance agreed to provide legal service. These are men and Program. I am grateful to the hundreds of Georgia lawyers who have answered the call to attend to the various women who are serving or have served our state and legal needs of the men and women who are wearing or have worn the uniform in service to our nation.” nation as soldiers, sailors, airmen and marines in our The program accepts most civil law cases (but not criminal matters), and to date, more than half of those armed forces both in war and peacetime. As increased have concerned family law matters. Multiple deployments and the mental and physical demands of service dedication and commitment has been demanded of in combat have increased the strain upon military families, and regrettably more than half of the family our service members stationed here in Georgia and law matters received by MLAP have been divorces and child custody matters. throughout the world, the legal assistance provided Statistically, about 10 percent of the cases have been consumer law matters, another 8 percent have by Georgia lawyers helps offset the sacrifices they and been real property matters (landlord-tenant issues and foreclosures) and about 10 percent involve VA their families make. benefit awards. When the MLAP program formally began in 2009, only 160 lawyers were accredited to

24 Georgia Bar Journal practice before the Department of Veterans Affairs. As a result of three CLE programs sponsored jointly by the MLAP Committee and the Military and Veterans Law Section, 505 lawyers have now been accredited. This has increased the pool of attorneys capable of assisting veterans and their dependents with obtaining federal entitlements. Commenting about this program and the economic value to their practice and to the Bar, lawyers have said: Photo by Stephanie J. Wilson (Left to right) Steve Redmon, special assistant to VA general counsel; John Camp, chair, Military n “The intent of the Georgia Bar’s and Veterans Law Section; Victoria L. Collier, CELA, VA and Elder Law instructor; Patricia Hooks, MLAP program is to expand regional VA general counsel; Will Gunn, VA general counsel; Patty Shewmaker, CLE committee the availability of legal services chair; and Norman Zoller, coordinating attorney, MLAP. to Georgia’s deserving military and veteran communities. In that regard, it should be considered as a success, through the quantitative provision of legal services in response to nearly a thousand queries for assistance. It should also be considered a success through the qualita- tive performance of those services, either on a pro bono or reduced fee basis. The panoply of these services covers nearly all aspects of civil and domestic cases and has greatly supported the legal needs of Georgia’s “Challenge coins commemorate significant advancement in the section’s activities, carry military, veteran and associ- special meaning and are valued far more than cuff links, personalized pens or a (coffee) gift card. They carry a message about our section’s and MLAP’s purpose and what is our mission. ated family members.”— Drew We ‘honor the military’ and we ‘serve those who have served’ by raising the quality of the Early, Decatur practice of military and veterans law and delivering legal assistance to our service members n “As a retired Air Force judge and veterans who would otherwise be unable to find legal assistance.”—John Camp, chair, advocate and veteran of the First Military and Veterans Law Section Gulf War (Operations Desert attorney who can really help chair, Military and Veterans Law Shield and Desert Storm), I wit- them. And best of all, seeing our Section, Warner Robins nessed firsthand the enormous volunteer lawyers reaching out n “There are several reasons for anguish, anxiety and frustra- and really helping our nation’s the Military Legal Assistance tions of our service members finest sons and daughters with Program, which was designed trying to deal with their person- their divorce and custody prob- to assist our military sector. al legal problems during their lems, veterans’ entitlements First, since the program con- deployments. It has been even and a host of other legal issues sists of diverse lawyers who more dramatic during United is just inspiring. For our folks may be veterans themselves, States’ operations in Iraq and in uniform, it is like seeing a we understand the never-end- Afghanistan as there have been tank column come over the hill ing challenges of our military many more service members after they are pinned down in members who struggle daily assigned to multiple deploy- a fire fight. I am indeed proud with the challenges presented ments. It is such a relief to now of those who serve our country, by performing their jobs while be able to place our Georgia ser- but today I am equally proud of their families are separated vice members in touch, through my fellow lawyers in Georgia from them for long periods of the Military Legal Assistance who are ‘standing tall’ with our time, often without any word Program, with a competent local service members!”—John Camp, of their status. These warriors

June 2013 25 ATTORNEY VOLUNTEER FORM

2013 Law School Orientations on Professionalism

Demonstrating that profession- Full Name alism is the hallmark of the prac- (Mr./Ms./Judge)______tice of law, the Law School Ori- entations have become a central Nickname______feature of the orientation pro- Address: (where we will send your group leader materials via USPS) cess for entering students at ______each of the state’s law schools over the past 20 years. ______Email:______The Professionalism Committee Phone:______Fax: ______is now seeking lawyers and judges to volunteer to return to your Area(s) of Practice:______alma maters or to any of the Year admitted to Georgia Bar: ______Bar #:______schools to help give back part of Please pair me with: (optional)______what the profession has given Note: phone, fax numbers & email addresses may be shared with group leaders and law schools. you by dedicating a half day of your time this August. Return form to: State Bar Committee on Professionalism: Attn: Nneka Harris-Daniel • Suite

You will be paired with a co- 620 • 104 Marietta Street NW • Atlanta, GA 30303 • ph: (404) 225-5040 • fax: (404) 225- leader and will lead students in a 5041 • email: [email protected] discussion of hypothetical professionalism and ethics issues. Atlanta’s John Marshall Law School Minimal preparation is necessary Saturday, August 17 for the leaders. Review the pro- 9 - 11:30 a.m. (tentative) vided hypos, which include anno- tations and suggested questions, and arrive at the school 20 Georgia State University College of Law minutes prior to the program. Tuesday, August 13 Pair up with a friend or class- 3 - 5:45 p.m. (tentative) mate to co-lead a group Mercer University School of Law Please consider participation in Friday, August 16 this project and encourage your 1:30 - 3:30 p.m. (tentative) colleagues to volunteer.

Savannah Law School Saturday, August 24 10:45 a.m. - 12:45 p.m. (tentative) Committee on Professionalism

Chief Justice’s University of Georgia School of Law Commission on Friday, August 16 Professionalism 2 - 4:30 p.m. (tentative) who constantly place themselves in harm’s way for this nation deserve the very best assistance after giving so much unselfish and nonyielding skill and time without question. We stand as a beacon to help these steadfast centurions with professionals who can understand and defend their cause. We also realize that many may be bat- tling PTSD or any number of maladies contemporaneously with their duties to the nation and their families. It is with honor that the Military Legal Assistance Program continually assists veterans with defense of issues often developed during the service to their country. Our

mission is to assist those who Photo by Norman Zoller tirelessly defend us and are so (Left to right) For their exemplary work in providing direct legal assistance to service members deserving of our care. And these and veterans, Drew Early, Lane Dennard and Cary King, the first recipients of the Marshall- very special clients have brought Tuttle Award, were also the recipients of the inaugural issue of “challenge coins,” which will be presented from time-to-time to lawyers and others who merit special recognition for service on new business to our office, even behalf of the Military Legal Assistance Program and of the Military and Veterans Law Section. on a reduced-fee basis.”—Fred Jones, McDonough our military personnel and their rights of service members during n “As the chair of the Pro Bono unmet needs. Bar members’ their deployments. With Camp’s Committee of the Real Property participation is a great way to advice and the help of several key Law Section, I have had the priv- express our appreciation to the members of the Georgia General ilege of assisting with matching troops and returning veterans Assembly, including Sen. Josh attorneys with service members for their service on our behalf. McKoon, the Georgia Military in need of real estate-related The success of this program is Parents Rights Act (SB 112) was legal assistance. It is inspiring profoundly gratifying to the enacted in 2011.1 The act helped fill to have a list of so many law- Bar leaders whose vision jump- a critical gap in Georgia law that yers who are eager to assist the started the program several shields military parents by protect- service members on a pro bono years ago, and to the hundreds ing their custody and visitation or reduced-fee basis as a way to of Georgia lawyers who have rights with their children. say thank you for their service contributed to its success by Since passage of that law, the to our country. Through MLAP making themselves available to issue has been more broadly con- we have been able to assist give back to our military per- sidered on a national basis, and active and retired service mem- sonnel in this way. It is defi- new legislation has been proposed bers in matters such as defend- nitely a win-win situation for that would be included under the ing their rights in foreclosure our service people and the par- Uniform Deployed Parents Custody actions and landlord-tenant ticipating members of the State and Visitation Act (UDPCVA). This disputes. MLAP is providing Bar.”—Cliff Brashier, State Bar proposal has been assembled by the a tremendous service to both executive director Drafting Committee of the national the members of the military as Commission on Uniform Laws, and well as the attorneys who are Additional Military was endorsed in principle by the able give back by assisting those Legal Assistance Family Law Section of the State who volunteer to protect us.”— Bar of Georgia and by the State Bar Missy Robinson, Atlanta Developments Board of Governors on Jan. 12, 2013. n “Clearly, the Military Legal Special Help for Military Among other provisions, as Assistance Program is fulfilling Families During Deployments noted by Kelly Miles, chair of the its original purpose, which is The Military and Veterans Law Family Law Section,2 this addition- to encourage Georgia lawyers Section, under leadership of John al proposed legislation would (1) to stand in the gap between Camp, has been active in other clarify that the jurisdictional rules the legal services available to ways with respect to protecting the limit the ability of the parties to

June 2013 27 Observations by Service Members and Vets What do the service members and veterans themselves say about the legal assistance they have received? Here is a sampling of comments made on the evaluations returned to the State Bar. National Guard soldier, Fulton County: “Attorney ___ was very professional and assisted me in my case. He is a very kind man with values, and worked in my best interest. Thanks for the recommendation and supporting our military.” McIntosh County veteran: “Thanks, you guys are great. . . . I just found out I am getting out 21 Oct. . . I also found out that I am going to be disabled for a few years. . . you kind of guys are the reason we serve.” Cherokee County veteran: “Mr. ___ and his staff have been helpful and I am very pleased with the representation.” Henry County veteran: “I was very satisfied with my attorney. I felt that . . . his passion and deep concern for my problem enabled him to serve my needs more than adequately. He was very timely with his response and always returned my calls. I would recommend him to future veterans as well as retain him for myself in future services.” Active duty soldier in Afghanistan (case in DeKalb County): “I am very satisfied with this program. They helped me find my lawyer while I was deployed. (I am still [in] Afghanistan.) Thank you so much! Quick, very professional and very friendly!”

seek modifications in states other on child custody, child support and King and the other lawyers on his than the issuing state; (2) specify child visitation issues. team either provide the legal ser- how a controlling order is to be vice personally or refer the matter determined and reconciled in the Legal Assistance at VA to another attorney who special- event multiple orders are issued; (3) Medical Centers izes in that particular legal area. clarify that the jurisdictional basis In addition to the help provided Annually, about 500 veterans who for the issuance of support orders through MLAP, veterans at the VA served in WWII, Korea, Vietnam, and child custody jurisdiction are Medical Center in Decatur can also and more recently, the Middle separate; and (4) establish uniform receive legal assistance through a East, receive this legal assistance. procedures for the processing of program established 15 years ago For his work, King was recently international child support cases, by the late Melburne D. “Mac” recognized by Will Gunn, general pursuant to the Hague Convention. McLendon. McLendon recognized counsel of the U.S. Department of Since the Board of Governors for- that many of the veterans who Veterans Affairs, and in January mally endorsed this uniform legisla- came to the hospital for medical 2013, he received the Marshall- tion, HB 685 was introduced, referred attention also had a variety of spe- Tuttle Award, presented annually to the House Judiciary Committee cial legal needs that only an attor- by the State Bar of Georgia Board and will be considered in the 2014 ney could meet and sought a way of Governors. session. Camp and the Military and to provide assistance. He was per- Because of its success, expansion Veterans Law Section have vowed mitted to set up a small office at the of this legal assistance program to maintain the contacts and empha- hospital where he offered pro bono is being considered for the other sis necessary to get this legislation services to veterans. two major VA Medical Centers in enacted as early as possible. Following Mac McLendon, Cary Augusta and Dublin, respectively. It appears clear that such uni- King assumed the clinic’s coordi- formity is needed across the nating leadership role. For the past Emory Law School Clinic country. Because of this pressing 12 years, he has maintained the Begins Operations need, its adoption in some form Atlanta VA Legal Clinic, and along Another effort to assist vet- appears to be only a matter of time. with Greg Studdard and other erans has been the creation of a Moreover, eventual enactment of recruited attorneys, continues to law school clinic which began the UDPCVA will aid in providing provide pro bono legal services on receiving and processing veter- significant relief for many active family law, consumer law, wills ans as clients in February 2013 at duty service members who have and estates, powers of attorney the Emory Law Volunteer Clinic sought assistance through MLAP and other civil issues to veterans. for Veterans.

28 Georgia Bar Journal Following the suggestion by Richard Menson, retired partner of McGuire Woods, Emory Law School Professor Charles Shanor agreed this past winter to start a program to which about 20 law students were initially recruited, along with 25 attorney-mentors who will work with the students one-on-one. Lane Dennard, retired King & Spalding partner, was appointed adjunct professor and co-director in January, and the clinic has already processed 16 cases, including post- traumatic stress disorder; traumatic brain injury; pension for a service- connected death; a need-based pension; VA claim for physical injuries; a requested upgrade to a military discharge; and two cases before the U.S. Court of Appeals for Veterans Claims. Dennard says, “The mis- Hinson, Emory Law School Photo by Katherine Emory Law School Clinic faculty and student leadership (left to right) Rachel Erdman 2L, Prof. sion of our clinic is to assist those Charles Shanor, Adjunct Prof. Lane Dennard and Martin Bunt 2L. who have served our country with legal issues that they face, especially At this time in our nation’s his- Court of Appeals for the 11th claims for service-related disabili- tory, with an all-volunteer military Judicial Circuit from 1981 to 1983, ties. We are off to a good start with force, multiple deployments and when he was named circuit our case load and very enthusias- an aging veteran population, the executive, a post he held until his tic student leaders and volunteers. military and the states are learn- retirement in 2008. Previously, he Frankly, I am amazed at the work ing that much needs to be done managed the Hamilton County, that the students have done. Also to assist our service members and Ohio, courts for nearly a decade. we have been fortunate to have veterans with personal legal issues. Zoller holds bachelor’s and master’s the full support of the Military and Lawyers in Georgia can take spe- degrees in public administration Veterans Law Section of the State cial pride in knowing that more Bar and the MLAP.” than 700 of them have stepped for- from the University of Cincinnati This initiative at Emory repre- ward to help. Being associated with and a law degree from Northern sents a significant beginning, and programs like these is enormously Kentucky University. He is admitted the program is being considered satisfying and gratifying. Special to practice in Georgia and Ohio. An for expansion to the four other law thanks go to those attorneys who Army veteran, Zoller served almost schools in Georgia as well. are already helping or who have seven years on active duty as a field Charles L. “Buck” Ruffin, helped. And to those who have artillery officer, including two tours president-elect of the State Bar of thought about participating, please of duty in Vietnam, first with Georgia and former chair of MLAP contact me for details at 404-527- Special Forces and then with the Committee: “The need first iden- 8765 or at [email protected]. 82nd Airborne Division in response tified by Jay Elmore and then a Join in. Doing so is good for our to the Tet Offensive in 1968. He concept conceived and developed service members and vets, and it also served 15 years in the national by his partner Jeff Bramlett dur- can be personally enriching and ing his State Bar presidency, this economically beneficial for you Guard and Army Reserves as a program is eminently achieving its and your practice. judge advocate officer. intended objectives. Not only are service members and vets receiv- Norman Zoller has Endnotes 1. O.C.G.A. Sections 19-9-1; 19-9-3; ing the legal help they seek, but devoted the majority of and 19-9-6. also these are cases for our Georgia his legal career to 2. Memorandum from Kelly Miles, lawyers that might not have other- public service. He chair, Family Law Section, to the wise come to them. Clearly, this is served as the first clerk State Bar of Georgia’s Board of economically beneficial and poten- of court for the U.S. Governors for its meeting on Jan. tially new business for them.” 12, 2013.

June 2013 29 GBJ Feature

2013 Legislative Review

by Russell N. “Rusty” Sewell

he 2013 session of the Georgia General ent of this payment has no current connection to the property or the transaction. The Real Property Law Assembly adjourned sine die on March 28. Section proposed the bill, which had been previously submitted to the General Assembly during the 2011 During this year’s session, a number of bills legislative session but failed to pass because of addi- T tional amendments that had been added. Rep. Mike supported by the State Bar passed through the House Jacobs (R-Brookhaven), vice-chairman of the House Judiciary Committee, sponsored the bill in the House, and Senate and now await signature from the governor. and Sen. Jesse Stone (R-Waynesboro), chairman of the Senate Judiciary Non-Civil Committee, sponsored the Perhaps most notably, this year saw reform of the bill in the Senate. Georgia Juvenile Code. Spearheaded by the efforts Another key initiative of the Bar was in response to of the Young Lawyers Division, the Juvenile Justice the Supreme Court of Georgia finding that malpractice bill, HB 242, completely rewrites the Juvenile Code. claims are assignable (Villanueva v. First American Title). Among numerous other changes, the new code sepa- HB 160, the transfer fee covenant bill, and Rep. Chad rates violent and non-violent juvenile crimes, offering Nimmer’s (R-Blackshear) HB 359, dealing with the community-based, social service programs instead of unclaimed property, were both amended to include lan- lock-up for the lesser offenses. This reform, sponsored guage prohibiting the assignment of legal malpractice by House Judiciary Committee Chair Wendell Willard claims. Both of these bills ended up passing the House (R-Sandy Springs), could save taxpayers approximate- and Senate and are awaiting the governor’s signature. ly $90 million over five years and was a product of the The Bar also supported several other bills passed Special Council on Criminal Justice Reform. The State by the Legislature. The Bench & Bar Committee’s Bar’s Board of Governors voted to support the rec- proposal to update the language used in the Oath ommendations of the Council. It was the work of the for Bailiffs passed the General Assembly in HB 161. Council which led to revisions in last year’s criminal It was sponsored in the House by Rep. Alex Atwood justice reform providing for more judicial discretion (R-Brunswick) and in the Senate by Sen. William Ligon in sentencing. HB 349, which dealt with the addi- (R-Brunswick). Georgia’s version of Article 9 of the tional changes to the adult system, was also part of the Uniform Commercial Code (UCC) received an update Council’s report. via SB 185, sponsored in the Senate by Sen. Stone and in In addition to the Juvenile Code Reform, the General the House by Rep. Jacobs. The changes amend Article Assembly passed HB 160, which prohibits most trans- 9 to conform to the 2010 Amendments to Article 9 of fer fee covenants on property. These transfer fees usu- the UCC as drafted by the American Law Institute and ally require a percentage of the sale price (typically 1 the National Conference of Commissioners on Uniform percent) to be paid to the original land developer or its State Laws. Additionally, the amendments conform trustee and can stay in effect for 99 years. The recipi- O.C.G.A. §§ 11-9-502 and 9-515 (non-uniform provi-

30 Georgia Bar Journal sions of the UCC) to the law in other states and now permit mortgages to be effective as fixture filings. Two other important pieces of legislation include the amendments to the Uniform Interstate Family Support Act (UIFSA) and the amendment of the interlocu- tory appeal procedure in child custody cases. The Family Law Section proposed the changes to UIFSA in an effort to bring the statute into conformance with the 2008 amendments to the uniform law. The amendments passed in SB 193, sponsored by Sen. Bill Cowsert (R-Athens) and Rep. Regina Quick (R-Athens). The updates incorporate the United States’ adoption of the Hague Convention on the International Recovery of Child Support and other forms of family maintenance. These changes allow for better enforcement of American child support orders abroad and ensure that children in the United States receive financial support owed from parents, regardless of where the parents live. The Appellate Practice Section supported the amendment of the inter- locutory appeal procedure in child custody cases. The amendment adjusts the appellate procedure for fies the Uniform Statutory Rule State Bar President Robin Frazer orders in child custody cases and against perpetuities by increasing Clark did a fine job representing the passed the General Assembly in SB the vesting period from 90 to 360 Bar on its legislative concerns and 204. Sen. Cowsert and Rep. Matt years. This change would make the entire Executive Committee is Ramsey (R-Peachtree City) spon- Georgia consistent with the laws in to be commended for its legisla- sored the bill. surrounding states. The language tive efforts. This was a produc- The State Bar’s Advisory can be found in SB 159, which tive and successful session for the Committee on Legislation recom- has been assigned to the Senate State Bar’s newly formed lobby- mended continuing funding in the Judiciary Committee. Second, the ing team which includes lobbyists State’s budget for the Appellate Family Law Section proposed add- Meredith Weaver, Roy Robinson, Resource Center—which pro- ing a subsection to the law gov- Jim Collins and Charlie Tanksley. vides legal services to indigent erning testamentary guardianships The State Bar increased its endeav- Georgians who have received a requiring that notice be given to or to expand its grassroots abilities death-sentence, as well as work- relatives of a minor child prior to and legislative education efforts by ing on other cases—and adequate the issuance of letters of guardian- hosting several “lobby days” at the funding for victims of domestic ship to the testamentary guardian. state capitol, led by Zach Johnson. violence. The General Assembly This bill, HB 654, is in the House These were well-attended, success- voted to include both proposals in Judiciary Committee. Also in the ful events and I encourage you to the FY 2014 appropriations bill. House Judiciary Committee is HB try to attend one of these lobby Three initiatives proposed by the 685, proposed by the Military and days next year. State Bar have been introduced Veterans Law Section, which would and will be worked on during update the two-year-old Uniform Russell N. “Rusty” Sewell is the the interim and considered next Deployed Parents Custody and president of Capitol Partners Public session. The first, supported by Visitation Act to make it consistent Affairs Group and team leader for the Fiduciary Law Section, modi- with the uniform law. the State Bar’s lobbying team.

June 2013 31 GBJ Fiction

Whitecliffe by Mark Roy Henowitz

22nd Annual Fiction he undertaker had the first motorcar in town. Writing Competition Actually it was a hearse. He thought it gave The Editorial Board of the Georgia Bar T his funerals some real cachet. It did. Journal is proud to present “Whitecliffe,” by In those days I didn’t own a motorcar. For trans- Mark Roy Henowitz of Buford, Ga., as the port, I preferred my old bay. I didn’t use a type- winner of the Journal’s 22nd annual Fiction writer either. I wrote my pleadings out in longhand. Writing Competition. In a nod to modernity, I had recently tossed out my loyal crow feather quill in favor of a new-fangled The purposes of the competition are to fountain pen. enhance interest in the Journal, to encourage It didn’t take a horse or a horseless carriage to tra- excellence in writing by members of the Bar verse the two blocks from my home to my law office. and to provide an innovative vehicle for the My office was a run down, one room affair above the illustration of the life and work of lawyers. pharmacy and a straight shot across the red clay street from the Courthouse Square. As in years past, this year’s entries reflected The windows of my office were open. It didn’t help. a wide range of topics and literary styles. In It was as hot as lava. My shirt was glued to my back. accordance with the competition’s rules, the The marbled glass paned door to my office on which Editorial Board selected the winning story I had stenciled my name and profession slid silently through a process of reading each story open. A man I did not know entered. He wore a black suit that had been in fashion 20 years earlier. without knowledge of the author’s identity “I’m Moses Johnson,” he said. and then ranking each entry. The story with “Please have a seat,” I said, motioning him to a beat the highest cumulative ranking was selected as up wooden chair. the winner. The Editorial Board congratulates Gently, he removed his cap and lowered himself into Henowitz and all of the other entrants for their the seat. “John McHugh is dead,” he announced in his deep participation and excellent writing. baritone. It was a soothing voice that enveloped me.

32 Georgia Bar Journal I nodded. Everyone in town “No.” old wooden structure, which had knew that John McHugh, the only “Have you seen Jimmy’s suit?” burned to the ground. This version son of the late Lachlan McHugh, in “No. I want you to do all that.” was red brick, with dramatic roof- his day the master of Whitecliffe I leaned back in my scuffed and lines and towers, making it appear Plantation, had recently died. ancient chair. Since Whitecliffe, taller than its two stories. “My mother told me repeat- prior to the late unfortunate war, The single courtroom was on the edly,” Moses Johnson continued, had been the grandest plantation second floor. At ground level were “that when John McHugh breathed in the county, housing both the the clerk’s vault, the sheriff’s office his last, that under the terms of McHugh clan and their more than and the Ordinary Court. the will of his father, Lachlan 200 slaves, it seemed to me doubt- “I need to see Lachlan McHugh’s McHugh, that I was the owner of ful that Moses Johnson, a black will, please,” I said to Selma, the Whitecliffe.” man, was the true and actual owner perpetual clerk of the Court of “Whitecliffe Plantation? That of the place. Having no pressing Ordinary. land has all been sold off years business, in fact very little busi- “Between you and me and the ago,” I said. ness at all, pressing or otherwise, I bedpost, that’s quite a popular “Not all of it. The house decided to take the case. item,” she said. remains.” “I’ll take your case,” I said. “I’ll “Is that so?” “That old place? It’s falling investigate it. Look into it. Check “O’Kelley pulled it a few days down. No one has lived there for back with me later today around ago. He’s representing Jimmy 50 years I bet.” sundown.” McHugh, the grandson. Did you “Nevertheless,” that voice like Moses Johnson nodded. He rose know that?” She said, pleased with syrup flowed on, “it’s mine. It has and as silently as he had entered. her command of the topic. come to my attention that Jimmy He slipped out of the office. “No I didn’t,” I said, adding to McHugh, John’s son, Lachlan’s The seat of justice was directly her pleasure. “Who else looked at grandson, has filed papers with the across the red clay street from my it?” court to establish his ownership of office. I tramped down the stairs “A fellow that came all the way Whitecliffe. I want you, Mr. Jakes, and then bounced across the lawn from Atlanta.” to prove to the court that I, in fact, to the new courthouse. It was new “Who does he represent?” I said, am the true owner.” in the sense that it had been built 40 adding even more to her superior “Have you seen the will?” years earlier, in 1870, to replace the feeling.

June 2013 33 Selma smiled. She still had dim- “But, if any of them contest the or two about what went on in his ples in her ancient cheeks. “Keep validity of this Will or any provi- town. He knew and he wanted me this under your hat, Marcus, but I sion thereof, whether or not in good to know he knew. “A lot of people understand that he represents some faith and with good cause, then all are interested in the case, son,” he long lost Yankee cousins from the benefits provided for such ben- said. “Even a fellow that came all Massachusetts. Now, who do you eficiary are revoked and annulled. the way from Atlanta.” represent, Marcus?” “Next, I make the following con- Grinning, he held out another set I shrugged and said nothing. tingent bequest and devise. I take of quad folded papers. I thanked Selma frowned. Then she note of my faithful servant Mary, him, leaned against a wall and read. changed the subject. “Do you who has cared for me in my declin- The handwritten complaint, want to know how the will sur- ing years. If the above bequest fails drafted by O’Kelley, whose office vived the 1870 courthouse fire?” for any reason whatsoever, then in was next door to mine, was sweet Selma was not about to surrender that event only, I give, bequeath and and to the point. Jimmy McHugh the document before displaying devise all of my property to the child was the only son of the Lachlan’s still more extensive knowledge of or children of said servant Mary, in only son, John, and the only grand- the situation. fee simple forever. However, since child of the deceased. Jimmy had no “Tell me,” I said. I have been advised by counsel children and being a lifelong bach- “All the court papers burned that Georgia law makes a nullity elor was unlikely to have any. There at that time. All the deeds. All of any gift to one held in bondage were no other parties with any the wills. All reduced to ashes. and since the ultimate result of the interest. The will had been probated Mere ashes,” she said dramati- present war being uncertain and 45 years earlier. Vesting should not cally. “The Ordinary Court judge unknown, this provision is to take be postponed any longer. Jimmy in those days was a bit scattered. effect only if such child or children was the sole and only heir and devi- In the head, you understand.” of Mary are at the time of their birth see. The court should declare Jimmy She tapped her skull. “The court free persons. the owner of the deceased’s only papers were in complete disarray. “If all of the above bequests fail remaining asset, Whitecliffe. Of course, I fixed all that when I for any reason, then all is to go to I refolded the instrument. I took over.” the persons nearest related to me handed it back to the Old Clerk, “Of course. But how did the by blood.” who had been looking at me cross- papers being in disarray save the I refolded the will and handed it eyed the entire time. McHugh will?” back to Selma. I strolled onto the courthouse “The will wasn’t even in the court- “Now who do you represent?” lawn. A couple of geezers were house. The judge had it and several she repeated. “I ask because Moses playing checkers on a bench. They other stacks of documents at home, Johnson came out of your office not ignored me. I didn’t return to on his kitchen table. The will was on long ago. Of course, he is the child my office. I swung right, brisk- his kitchen table.” She was very sat- of Mary named in the will.” She ly covered the two blocks to isfied with this revelation. Then to had me nailed. She smiled those my house, slapped a saddle on punctuate the tale, she slapped the dimples at me. my old bay, and journeyed to will of Lachlan McHugh, the master I left the Ordinary office and Whitecliffe Plantation. of Whitecliffe, into my palm. took three steps across the dusty b a a b The will was folded and folded hallway to the Clerk of Superior Lachlan McHugh got his for- again. To one quarter its size. I Court. The Old Clerk greeted me tune the old fashioned way. He smoothed it out. I plopped into a at the door. He had worked at married it. His father was an wooden chair at a small table in the old, burned down courthouse impoverished school teacher from the corner. and 40 years later was still on Massachusetts, who had drifted Following the clauses about the job. into Augusta as the 18th century being of sound and disposing mind, “Help you, son?” faded. Lachlan had the good for- the paragraph about a Christian “Yes, sir, I’d like to see the tune and the good sense to woo burial, the directions to pay just McHugh will case.” and win the hand of Katherine debts, the will came to the meat of “Why’s that?” he said wrinkling Fitzpatrick, the daughter of the the matter. his brow clear through his bald head. master of Silver Hill, the largest “I give bequeath and devise all “It is public record, sir. I don’t plantation on the South Carolina of my property to my son John, need a reason.” side of the Savannah River. for Life, then to John’s child or “I just thought maybe, just After the marriage and the children for their lives, and upon maybe, it’s got something to do dowry, Lachlan carved his own the death of the last of John’s chil- with Moses Johnson being in your plantation out of a thousand acres dren to my bodily heirs in fee office today.” Like Selma across the on the river’s Georgia side a few simple, forever. hall, the Old Clerk knew a thing miles north of Beech Island. Soon

34 Georgia Bar Journal Lachlan’s Whitecliffe was every bit crops unplanted and bank loans decades of dust. The walls were as large and successful as its par- and taxes owed. He never lived at lined with leather bound books. ent plantation. Lachlan’s success Whitecliffe again. He began to sell I examined the spines. Plutarch. began with his marriage to money, off the hundreds of acres in order Rousseau. Goethe. Plato. Cicero. but was augmented by his study to pay the debts. In the end all that Livey. Tacitius. Then I saw a spine of and practice of scientific agricul- remained were the house and a col- with no marking; a thin volume. ture and was based on the labor of lection of out buildings on barely I blew on it. The dust clogged his hundreds of slaves. three acres. my throat. I slipped it from the Whitecliffe’s cotton was floated My bay enjoyed the ride. She shelf. The book was the farm log of down the Savannah River, which trotted up to Whitecliffe. It looked Whitecliffe; the handwritten jour- practically ran by Lachlan’s front more like an oversized farmhouse nal of Lachlan McHugh, scientific door. In Savannah the crop was than a grand plantation manor. I farmer. It detailed the plantings, the cleaned, ginned, pressed and baled dismounted and tied the bay to a number of acres sown in cotton and in the brick warehouses on the hitching post. Completed in 1849, other crops, the date of planting, river’s edge. the house was a white two story. the yield per acre and the yield in In time, Lachlan acquired inter- At least it had been. The white had dollars, livestock bought, sold and ests in more than one of those peeled off and faded long ago. The bred. Everything itemized, enu- warehouses, in which nearly all of green shutters were speckled with merated, listed and even graphed the cotton produced in the South the work of mud dauber wasps. and charted. was first processed and then The double deck porch was falling I tucked the volume under my shipped to Liverpool, England. off the house. The tin roof rusted arm; locked the front door. Swung If cotton was king—and it was— through. Windows were broken. onto my old bay and rode back then the men who ran the ware- The old mansion was going to rack to town. houses were the merchant princ- and ruin. After watering the bay, putting es. They and they alone, from To the side of the house were a her out to graze and leaving the their thrones above River Street, kitchen house and a stable; both farm journal in my house, I walked set the worldwide price of cot- falling down. Close by the manor back to the center of town. ton. Lachlan McHugh was one of were four log slave cabins, which My office was above the phar- these princes. in the days of bondage would have macy. Next to the pharmacy was Then came the War. And the held eight families serving out the hardware store. Above it was blockade. And no cotton left the port their life sentences. Possibly even the law office of O’Kelley. I bound- of Savannah. And no prices were the father of Moses Johnson. ed up the creaking and groaning set. And the Cotton Kingdom was Stepping warily on the broken stairs. O’Kelley sat behind his desk no more. Lachlan and the others porch, dodging the wasps, I gin- in the one room office, whose win- were neither merchants nor princes. gerly crept to the front door. I dow framed the courthouse. He Lachlan McHugh retired to twisted the glass knob. Locked. was fat as a hog, wheezed like a Whitecliffe. Closeted and cocooned I slipped a thin metal strip I’d jackass and was as slick as a fox. there. He withdrew into his own brought for the occasion out of my “Marcus,” he said, struggling to world awaiting the inevitable end. pocket and picked the lock. The his feet and offering me his hand. I’ve heard it said that he willed door creaked as I pushed it inward. I shook it. He motioned to a chair. himself to die before the defeat of No one had lived here since “What can I do for you?” he said the Cause, remarking that he did shortly after Lachlan had died. The grinning as he collapsed back into not care to “Look behind that veil.” son, John, lived in the fashion- his seat. Sherman’s march to the sea began able district of Augusta. So did the on Nov. 16, 1864. Lachlan had died grandson Jimmy. Only the spiders three days previously. and their insect prey seemed to Who’s Watching His only son, John McHugh, inhabit the place. Them and maybe Your Firm’s 401(k)? enlisted as a captain. He was in the a mouse family or two. Commissary Corps in Gen. David The ground floor contained a Rumph Jones’s brigade. Later he central hallway with two rooms (866) 812-1510 was promoted to colonel and was on each side. I pushed through www.abaretirement.com in the Quartermaster Corps of the the webs, as thick as pea soup. Army of Northern Virginia. He The room to the right was a sitting was in that position when Lee sur- room. The dust covered furniture rendered at Appomattox on April arranged for a tea party that never 9, 1865. came to pass. The room to the left John returned home to find his was the old man’s study. The desk father dead, the slaves freed, the still had papers on it; covered with

June 2013 35 “I read your Complaint in the The manuscript dealer, a mem- the street to tell me that the case McHugh will case,” I said. ber of a notoriously fallible profes- would be heard on Wednesday “What’s your interest in that?” sion, had represented the book as morning. I tossed the kid two bits he said, screwing up his face. a diary, stolen like so many other for his trouble. “I represent Moses Johnson. He’s items, by the Union forces of occu- At the appointed time, I walked the son of Mary. He’s named in the pation during their 10-year sojourn across the red clay road to the will as the contingent beneficiary.” in our town and then spirited to Courthouse Square. I climbed the “That provision, Marcus, only Ohio. My glass showed the pages steps to the second floor court- comes into play if the initial bequest in fact to be of the correct age. Now, room. It was a high ceilinged affair fails. It does not fail. My client, thanks to my purchase, the volume and wainscoted all around. There Jimmy McHugh, is the grandson of had made the complete circle, back were no spectators in the pews. the testator. All we are asking for is home. The diary would fit snuggly Even the checkers-playing geezers earlier vesting.” into my growing collection, which on the courthouse lawn agreed “You’re asking for more than that.” included soldiers’ letters, deeds of that this action was not worth a “Maybe. Maybe. But the court slaves, war photos, as well as the look. Simply put, the grandson isn’t going to award Whitecliffe farm journal I had purloined from of Lachlan McHugh was seeking Plantation to Moses Johnson. Come Whitecliffe that very day. his rightful patronage, the crum- back down to earth, Marcus.” I flopped into my chair, put my bling Whitecliffe Plantation manor “I hear that some Massachusetts feet on the desk and paged through house. Opposing him were a black heirs of McHugh are also making the diary. man and some distant Yankee rela- a claim.” I was lost in space and time tives. The result, in the geezers’ “Yes. Yes indeed. I’ve talked to when my door slid silently open. opinion, was clearly cut and dried. their Atlanta lawyer, a Mr. Sparks. Moses Johnson glided through. I O’Kelley, attired in his rumpled He also should be pragmatic. looked up and motioned him to the seersucker suit, was seated behind He’s got no claim. Besides, the chair. I took my feet off the desk. the plaintiff’s table. court is not awarding Whitecliffe “The hearing will be in a few Behind the other table was a Plantation to Yankees. I mean, days,” I said. “When Judge Pitts gets city lawyer with slicked back hair, Marcus, consider the intent of the to town. Do you want to attend?” pince-nez glasses, a walrus mus- old man, for God’s sake.” “No. I think not. I’ll leave that to tache and a prodigious belly. He “When is the hearing?” you. I’d rather stay away from the was decked out in a three piece “Judge Pitts will be here in two courthouse.” suit, some kind of flying collar and days time.” The judge rode the “I understand. That’s not a was weighted down by a solid gold four-county circuit. He came to problem.” watch chain. our county at least once a month. “What are the chances?” O’Kelley commenced with the “We’ll be heard at that time.” “I’d have to say slim. However, introductions. “This is Mr. Sparks,” I shook O’Kelley’s hand and left. not zero. I’ve got a card or two up he said about the walrus-mustached Down his stairs. Up my stairs. my sleeves.” apparition. “He’s from Atlanta. He The postman had crammed a “Aces?” represents some alleged heirs from parcel through my slot. I tore off “Maybe not aces. But, they still Massachusetts.” His words were the string and the brown wrap- may trump our foes. It’s a dicey spit out with a contemptuous fla- ping. Inside was a book, if it could situation, considering who the vor. O’Kelley next nodded in my be called a book, the pages being players are. We are talking about direction. “This is Marcus Jakes. He crudely hand sewn together. Whitecliffe Plantation after all.” represents the colored fellow.” I whipped out my magnifying “Of course.” The introductions complete, glass and gave the manuscript I leaned forward. “How old are I started to offer my hand to the the Sherlockian treatment. The you?” I said. Atlanta walrus. He gazed at me with glass revealed the paper to be “Forty-five. Possibly 44 or 43.” hooded eyes, like a falcon study- ribbed and fraying. Clearly the “Have you got any proof of your ing a mole scampering below him. pages were of cotton composi- birth?” Fearing he might strike, I withdrew tion, not the wood pulp paper in “I’m here. That proves I was my hand and smiled at him instead. current use. born.” I couldn’t tell if he smiled back The glass further showed the “Anything that proves the date beneath his prodigious mustache. brown ink, not the blue of current of your birth? Any writing?” There was no third station, so I vogue, to be iron gall. The iron in He shook his head. tossed my satchel, uninvited, onto the ink was in fact oxidizing; lit- b a a b the walrus’s table. “I guess we’re erally rusting. The magnification Judge Pitts arrived in town bunking together,” I joked. revealed the rust to be in fact eating on Tuesday. The Old Clerk sent Before the walrus had a chance the paper upon which it lay. his 10-year-old grandson across to respond, the bailiff bellowed,

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Products sold and serviced by the State Bar of Georgia’s recommended broker, Member Benefits. The State Bar of Georgia is not a licensed insurance entity and does not sell insurance. “All rise.” his nose and waved it about as he “I see,” said the judge. “Mr. Judge Pitts entered from the side spoke. “No interest is good unless Jakes, have you nothing to contrib- door. He was balder than an eagle, it must vest, if at all, not later than ute?” The old man just didn’t want older than the hills, and ran a no 21 years after some life in being at me left out. He sought to pull me nonsense court. He took his place the creation of the interest. The will into the fracas. behind the raised bench. here, grants a life estate to the son, “Clearly, Mr. Sparks is cor- “Be seated. I know Mr. O’Kelley John, followed by a life estate to the rect,” I said. “The Rule Against and Mr. Jakes. Who are you?” the child or children of John, followed Perpetuities voids the bequest. The judge grunted at the pince-nez by vesting. The grandson, Jimmy In Torrorem clause, forbidding any wearing walrus to my right. McHugh, was not a life in being challenge to the will, cuts off the “I. C. Sparks,” the walrus said, at the time the will was written grandson with nothing. I would rising. nor when the will was probated. add that the will is clear and pre- “You see what?” the judge said. Therefore, the provision fails.” cise that if that provision fails for “I. C. Sparks, your honor. That’s “Very succinct, Mr. Sparks. Mr. any reason, then the property goes my name. I represent certain rela- Jakes,” the judge addressed me, to the child of Mary, my client.” tives of the deceased Mr. McHugh.” “any thoughts?” My tablemate added a caveat, “It “I see.” Judge Pitts peered at the “No,” I said. Why speak, I fig- goes to your client, if and only if, he walrus over his outsized glasses. ured, when someone else was was born a free man. Otherwise, it Perhaps the judge was familiar doing my job for me? And doing it goes by the next paragraph of the with Sparks’ reputation among the better than I could. will to the relatives nearest related Atlanta legal establishment as simi- “Mr. O’Kelley?” by blood to McHugh. These rela- lar to that of a famished lion among “It doesn’t matter, judge,” tives are my clients, the grandchil- herbivorous wildebeests. O’Kelley, warrior of a thousand dren of McHugh’s father’s brother.” Then the old judge turned to me. battles, responded dismissively. “Interesting,” the judge said. “I “Who do you represent, Mr. Jakes?” His scorn was undisguised. The will rule presently on the matter of “Moses Johnson, your honor, the old fox clearly intended to slip the the Rule Against Perpetuities and true owner of Whitecliffe,” I said, hangman’s noose. “If the provision on the matter of the In Torrorem putting my cards on the table. is invalid, then the property goes Clause. Before I do, let us address “Indeed,” the judge responded to the last party qualified to take. the issue of the contingent gift to prior to taking my cards as well That party is McHugh’s son, John. the child of Mary. The will claims as my whole pile of chips. “Mr. My client is the sole heir of John. If, to state the law of our state that a O’Kelley, what have we got here?” however, it does not go to the last gift to a slave is null and void. Is “The will of Lachlan McHugh. party qualified to take under the this a correct statement of the law He died in 1865. The will, written will, because the entire gift is void, Mr. O’Kelley?” in 1864, calls for several life estates than it passes by intestacy to the “Judge,” said O’Kelley, ”it does followed by vesting in his great- heir of the Lachlan McHugh. My not matter what the Law of Slavery grandchildren. The public policy client is his sole heir.” All roads, it is or was. My client takes, either of this state favors early vesting. appeared, led to O’Kelley’s client. under the will or as the sole heir The will was probated 45 years “It doesn’t matter. It simply does at law. Period.” O’Kelley was in ago. We subscribe to the position not matter.” no mood for a theoretical debate that the time has come to vest The old judge glanced over at about the merits or demerits of gifts the corpus in Lachlan McHugh’s the table I shared with the walrus. to slaves. only devisee and only grandchild, The Atlanta advocate was on his “Mr. Jakes?” The judge cast his Jimmy McHugh.” feet in an instant. “Mr. O’Kelley’s gaze on me. “I’ve read the will, Mr. O’Kelley. client has brought this action in I didn’t know the answer, so Do you see anything wrong with order to object to a term of the will. I threw a smoke grenade. “Your the bequest to your client?” He has asked the court to modify honor, this is the 20th century. The “No, your honor.” the will as to the time of vesting. Law of Slavery has been in disuse “If it please the court,” my table- He has challenged the will. The in our state for nearly 50 years. mate was chomping at the bit to will clearly states that if anyone It is archaic. It has no bearing on get into the action. “The clause in entitled to take under that para- this case or any other case. The question violates the Rule Against graph objects to any term of the court should carry out the intent of Perpetuities.” will, even in good faith, than that the testator with no regard for the “Perhaps,” the judge said slyly, person takes nothing.” Law of Slavery. In equity, my cli- “Mr. Sparks, you could explain to O’Kelley wasn’t about to concede ent is entitled to take, as McHugh Mr. O’Kelley that rule of law.” that point. “My client did not chal- intended and directed.” The walrus assumed a professo- lenge any term of the will at all. He My tablemate regarded me as a rial air. He took his pince-nez off merely requested earlier vesting.” horned owl might regard a chicka-

38 Georgia Bar Journal dee that had landed on his branch. do we determine if someone is born arate from the Union. Lincoln’s “Judge,” the Atlanta advocate spit, a free man? Do you, Mr. Sparks, decree was of no legal effect. “you did not ask Mr. Jakes to opine accept that Lincoln’s Emancipation Sherman never came to Whitecliffe. on what century we inhabit. You Proclamation of Jan. 1, 1863, freed The slaves of Whitecliffe were asked him if a gift to a slave was the slaves of Georgia?” not free until the ratification of valid or void.” “No, I do not.” the Georgia Constitution on Nov. “I know what my question was,” “Explain.” 7, 1865. the judge said, his voice as frigid as “Lincoln had no jurisdiction in “Mr. Sparks, you’ve addressed an arctic gale. Georgia at that time.” the issue of a gift to a slave being a Undeterred, the walrus continued, “Then what is the correct date nullity,” the judge continued. “But, “Under the 1818 Anti-Manumission when the slaves were at liberty?” Mr. Jake’s client is not a slave today. Act, a gift to a slave was invalid and “The Georgia Convention of Does it really matter at all whether void. All actions to free slaves in 1865 created the new post-war or not he was born a slave?” Georgia were null and void.” Georgia Constitution which recog- The walrus held up Volume 46 “Is a gift of property in a will nized the abolition of slavery. The of the Georgia Reports, as if he an endeavor to free a slave?” the Constitution was approved by the were Moses on Sinai displaying judge said. Convention on Nov. 7, 1865.” the Commandments. “The case of “The 1818 Act went on to prohibit The judge looked at me for Bennett v. Williams, judge, answers not only direct manumission, but my opinion. your question. The case is at 46 freedom granted indirectly or virtu- I blew more smoke. “Lincoln Georgia 399. It was decided by the ally. The Act specifically prohibited effectively freed the slaves. As Supreme Court of Georgia in 1872, allowing a slave to benefit from his the Union army moved through seven years after slavery ceased to labor or skill. By implication, a gift Georgia, the slaves in its path were exist. The facts are uncomplicated. for the benefit of a slave clearly fell liberated,” I said. John Cotton died in 1859, with a under the prohibition and was void.” “Were the slaves of Whitecliffe will dated in 1850. He devised two “The will seeks to avoid this prob- in that path?” the judge asked. lots of land in Monroe County, in lem,” the judge observed, “by mak- “Ultimately,” I lied. trust, the profits to be applied to ing the gift contingent on Mr. Jake’s “I think not,” the judge declared the benefit of three slaves.” Here, client being born a free man. How with finality. “Georgia was sep- Sparks dramatically flipped open

June 2013 39 nothing. This case is directly on point. This decision controls here. In our case, McHugh died before the 1865 Convention and the freedom of the slaves. In order to take, the child of Mary must have been born a free man.” The judge peered over his Brobdingnagian glasses at me. “The Laws of Slavery are of no effect today. Period. But, those laws were in full force and effect at the time this will was probated. Now, Mr. Jakes,” he said with the air of a Doubting Thomas, “was your client born a free man?” I froze. I had not expected to get this far. I thought the case surely would have been resolved against me well before this point. My mouth was as dry as the Sahara. I stared straight ahead. The courtroom was silent. The inter- val stretched and stretched until it could be calculated in geologic time. “Mr. Jakes,” the judge broke the silence, “was your client born a free man?” Aroused from my inertness, I pulled from my satchel two volumes. One was the farm journal that I had purloined from the Volume 46 and read, “Old Perry, the former slaves, the Court held, Whitecliffe manor house. The other his wife Silvey and their grand- took nothing.” was the sewn together diary that I daughter, Elizabeth, a mulatto The judge shook his bald head. had received from the manuscript girl.” He looked up from the book. “Mr. Jakes? Any thoughts?” dealer in the post. “Years after the end of slavery, the I cranked up my smoke machine. I held aloft the thin leather- three former slaves sued Cotton’s “The Court could have and should bound farm journal. “I offer into executor to enforce the bequest. have ruled the other way. The con- evidence the farm records of “The opinion of the Court was dition of the three persons was so Whitecliffe Plantation.” unanimous. Clearly, the enjoy- changed, their status under the law O’Kelley, who had been forced ment and control of the profits was so different, the intent of the into silence during the walrus’s of the land by the three persons testator was so clearly manifested, peroration, struggled to his feet. would have been entirely inconsis- that under the law as it existed in “Objection. What evidence is there tent with their condition as slaves. 1872, the bequest should have been of the authenticity of this book?” But, they were no longer slaves. declared valid not void.” “I state, on my honor, as an The question was, when did the The walrus’s eyeballs bored into officer of the court, that I stole will speak? This, your honor, is me like drills. “Absolutely not,” he this book, myself, from Whitecliffe, the point, the crucial point, the thundered. “Under the mandatory three days ago,” I said. indispensible point.” He waved requirements of the statutes, in the “On your honor, as an officer of Volume 46 about. “The will is con- case of Cotton’s will, the control of this court, you state that you are a strued under the law as it existed the land by slaves would have been thief?” the judge said. at the time the will took effect, contrary to, incongruous with and I handed the book to the judge. that is, at the death of the testator irreconcilable with their status at “On my honor, I am a thief. I took in 1859, prior to the abolition of the time the will took effect. Any it right off of the shelf where it sat slavery. It is not construed under change in their status after that for 45 years; right off of the shelf the law of 1872, subsequent to date is irrelevant. The Court was in the study. The book is written the abolition. Because of this rule, correct that the former slaves took in Lachlan McHugh’s own hand.

40 Georgia Bar Journal Mr. McHugh was a student of and I turned to O’Kelley. “Are you “Please turn to the next page proponent of scientific farming. acquainted with a Miss Evelyn I’ve marked, Jan. 17, 1866,” I said. This volume contains the record Collins?” I asked him. “The entry shows the birth to Mary of every seed planted, every plant O’Kelley appealed to the judge. Johnson of a baby boy, Moses. harvested, the yield per acre, the “I’m not a witness for Mr. Jakes in This was several months after the profit or loss. It contains the record this case, your Honor.” Georgia Convention recognized of every cow and horse purchased, “Mr. Jakes?” the judge said. the abolition of slavery. Moses sold or bred.” “If you’ll please indulge me,” I Johnson was born a free man.” “Where is a scintilla of proof to said. b a a b substantiate any of this?” O’Kelley “Answer the question, Mr. On a crisp autumn day, I rode said dismissively. O’Kelley.” my old bay out to Whitecliffe. The judge thumbed through the “I knew Evelyn Collins. She was The rusted through roof had been book. “I’ll accept it.” my wife’s aunt.” replaced by shiny new tin. The sun- “In addition to cows and horses, “What was the vocation or avo- light’s reflection off of the bright the journal also contains a record of cation of Miss Collins?” silver blinded me. The sad peel- another plantation chattel,” I said. “She was a midwife.” ing and insect infested walls had “In Lachlan McHugh’s own hand “For how long did she midwife been scrubbed and whitewashed is a complete record of every slave in this county?” until they gleamed. The shutters bought, every slave sold, every slave “Forty years. Maybe longer.” were a pleasing forest green shade. born. Under Georgia law, and in dero- “I hold in my hand the Midwife’s A spanking new first floor porch gation of the Common Law, the child Diary of Evelyn Collins,” I said, wrapped the ground floor. followed the condition of the mother. raising the sewn together book I Way up on the skeleton of the Every slave born on Whitecliffe was had received in the mail from the partly completed second story the property of McHugh. As a mat- manuscript dealer. porch stood Moses Johnson, ham- ter of property law, it was incum- “I knew Miss Collins,” O’Kelley mer in hand. He slammed a nail bent upon him to substantiate own- said disgustedly, “but I don’t into a new floorboard. Then he ership. Every birth was noted in vouch for any diary.” waved his hammer at me. his journal. The walrus joined in. “Are “Looks great; I wouldn’t have “I call the court’s attention to the we to now have yet a second recognized the place. What are your years of 1863, 1864 and 1865. The unsubstantiated volume placed plans?” I said, remaining in the saddle. births of many slaves are noted. Each into evidence?” He leaned against a vertical entry shows the name of the mother, “Mr. Jakes,” the judge said, “we beam. “I’m going to live in it,” he the date of birth, the gender of the reluctantly allowed the farm jour- said. “I’ve got the outside about baby and the name of the baby. There nal. But, now this? What proof is fixed up. Next I’ll begin on the is no baby born to Mary noted in the there of its provenance?” interior. By the way, I still haven’t journal. Moses Johnson is not in the “When were you born, your settled your fee.” book. He is not shown as a slave born honor?” “Fee? I don’t think so. I would on Whitecliffe.” “It’s not enough that Mr. like to keep the plantation journal “This proves nothing,” exclaimed O’Kelley is your witness. Now I’m I stole from you. Other than that, my tablemate. “Nothing. McHugh to be brought to the stand as well?” there is no fee. In fact, I should be may have been too ill or too dis- “If it please the court.” paying you. That was the most fun tracted to make the entry. The war “It does not please the court, not I’ve had in years.” and the ending of the war may at all. I was born Aug. 10, 1845.” Moses Johnson smiled. He have caused such confusion that I handed the sewn together book leaned over and banged another normal record keeping had ceased. to the judge. “Please turn to the nail into the porch. The absence of the birth in the page I’ve marked. The entry is for journal proves nothing about when Aug. 10, 1845. Miss Collins assisted Mark Roy Henowitz Moses Johnson was born.” in the birth to Sarah Byrd Pitts. A graduated from the The judge leaned back in his healthy baby boy, one Hiram Byrd University of Florida chair. “You’re trying to prove a Pitts was delivered. It shows your with Phi Beta Kappa negative, Mr. Jakes?” birth, your honor. I ask you to honors. He received his “I have proven it. The detailed authenticate this book.” law degree from and precise scientific journal The judge studied the page. Did Columbia Southern. With more than of Mr. McHugh is clear. Moses his eyes mist slightly at the men- Johnson was not born a slave tion of his sainted mother? If so, he 30 years of experience, he specializes on Whitecliffe.” quickly blinked it away. Then he in the area of real property title law. “Have you got anything else,” the looked up and growled, “The book He may be reached at mhenowitz@ judge said before he ruled against me. is authenticated. Proceed.” comcast.net.

June 2013 41 Bench & Bar

Kudos This award honors judges and lawyers in Georgia > Burr & Forman LLP announced that who have made significant contributions to their Scott Hitch was appointed to the Board communities and demonstrate the positive contri- of Directors for the Green Chamber of butions of members of the Bar beyond their official the South. The Green Chamber con- or legal work. nects sustainable businesses, clean tech- Partners C. Allen Garrett Jr. and Dean W. Russell nology companies, corporations with were selected as winners in the International Law sustainability programs, nonprofits and govern- Office and Lexology’s 2013 Client Choice Awards. ment organizations throughout the Southeast so This year’s winners were chosen from a pool of more that they may create enduring business connec- than 2,000 individual client assessments. The awards tions, share best green practices, learn from one recognize both individual partners and firms that another and grow both their own bottom lines as excel across the full spectrum of client service. well as create new green jobs. In addition, Hitch Partner Joe Beck was named a Power 100 was selected for the Institute for Georgia Advocate by the organization On Being a Black Environmental Leadership’s Class of 2013. The Lawyer (OBABL). Beck was recognized as a non- program focuses on leadership development with black attorney strongly committed to diversity in regard to current and emerging environmental the legal profession. OBABL selected their Power issues, environmental problem solving, communi- 100 Advocates after carefully considering the rec- cation skills and conflict management. ommendations of their Power 100 Honorees, some of the most influential black attorneys in the United > Baker, Donelson, Bearman, Caldwell States, who were asked to nominate non-black & Berkowitz, PC, announced that attorneys that have been strong advocates for diver- shareholder Charles L. Ruffin was sity in the law. appointed to serve on the Board of Partner Greg Cinnamon was chosen by the Directors of the Owners’ Counsel of Association for Corporate Growth (ACG) as a America (OCA). OCA is a nationwide recipient of the 2013 Meritorious Service Award. network of experienced eminent domain attorneys A member of ACG since 2004, he has served on the dedicated to protecting the rights of private prop- ACG Atlanta Board of Directors since 2008 and has erty owners large and small, locally and nationally, served as ACG Atlanta chapter president since 2011. and to advancing the cause of property rights. In During Cinnamon’s presidency, the Atlanta chapter addition, Ruffin will be sworn in as the 51st presi- has grown by 10 percent to more than 530 members. dent of the State Bar of Georgia on June 22 at the Annual Meeting on Hilton Head Island, S.C. > Hon. Ben J. Miller Jr., who received his undergraduate degree from the > Womble Carlyle Sandridge & Rice, University of North Georgia in 1992, was LLP, announced that William M. recognized as the university’s 2013 Young Ragland Jr. received the Leadership Alumnus. This honor is presented to an Award—the Atlanta Bar Association’s alumnus within 25 years of graduation highest honor. Ragland served as presi- who has distinguished themselves through outstand- dent of the Atlanta Bar from 2004 to ing professional careers and/or outstanding contribu- 2005, and recently completed a two-year term as tion to public service. Miller began serving as a juve- president of the Atlanta Bar Foundation, the chari- nile court judge in the Griffin Circuit in 2004, and has table arm of the Atlanta Bar Association. been chief judge since 2008. He also remains active in his hometown of Thomaston, Ga. > > HunterMaclean partner Kirby Mason was honored at Savannah Technical College Foundation’s annual 2013 Tribute to Dial Garrett Russell Beck Community STARs. Every Mason Keene Kilpatrick Townsend & Stockton LLP announced year, the foundation publicly that partner Audra Dial received the Justice Robert recognizes individuals who have made significant Benham Award for Community Service from the contributions through leadership and community Chief Justice’s Commission on Professionalism. involvement. Founded in 1984, the Savannah

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Technical College Foundation has diligently worked > Nelson Mullins Riley & Scarborough to enhance adult literacy, learning, workforce train- LLP announced that partner Richard B. ing and economic development in Bryan, Chatham, Herzog Jr. was elected chairman of the Effingham and Liberty Counties. Board of Directors of Atlanta’s John Partner Dennis Keene was named chair of the Marshall Law School, an independent ALFA International Product Liability Practice law school founded in 1933 and accred- Group. The ALFA International Product Liability ited by the American Bar Association. Herzog, a Practice Group provides legal counsel to product business bankruptcy and lending lawyer, has manufacturers, distributors, wholesalers and retail- served on the board of John Marshall since 2009. ers. Membership in this practice group includes ALFA International law firms from around the > Sutherland announced that Judith A. O’Brien was world. As chair, Keene is responsible for the overall the 2013 recipient of the Ben F. Johnson Jr. Public direction and business development initiatives of Service Award presented by the Georgia State the practice group. University College of Law. A partner at Sutherland for more than 20 years, O’Brien served as the head > Hunton & Williams LLP announced that corpo- of the firm’s pro bono and public service commit- rate partner Christopher C. Green was selected tee, and most recently served as the firm’s pro bono as a winner in the International Law Office and partner. She retired from practice in January and is Lexology’s 2013 Client Choice Awards. now of counsel with the firm. > Carlock, Copeland & Stair, LLP, On the Move announced that Megan E. Boyd was rec- In Atlanta ognized by the American Bar Association > Thomas Richelo announced the reloca- (ABA) and legalproductivity.com for tion of his practice, Richelo Law Group, her personal legal writing blog, “Lady LLC. Richelo continues to focus his prac- (Legal) Writer.” The blog, which offers tice on construction law and commercial grammar, style and humor to readers, was added to litigation. Since 1991, the firm has served the ABA Journal’s Blawg Directory and was also large and small businesses and individu- recognized as one of the “Top 10 Legal Writing Blogs” als in litigation, arbitration, mediation and other by legalproductivity.com. forms of dispute resolution, as well as providing business advice. Richelo also serves as an arbitrator > Justice Harold G. Clarke was posthu- or mediator on business disputes. The firm is located mously presented with the Southern at 951 Glenwood Ave., Unit 1003, Atlanta, GA 30316; Center for Human Rights’ Lifetime 404-983-1617; www.richelolaw.com. Achievement Award. Justice Clarke served on the Supreme Court of Georgia > Balch & Bingham LLP announced that Dean from 1979-90 and as chief justice from Calloway and Michael Wing joined the firm as 1990-94. He received the award for his courageous partners. Calloway is a member of the firm’s busi- work shedding a light on the woeful state of indi- ness litigation practice group. Wing is a member of gent defense in Georgia. Justice Clarke died in the firm’s creditors rights and bankruptcy practice February 2013. group. The firm is located at 30 Ivan Allen Jr. Blvd. NW, Suite 700, Atlanta, GA 30308; 404-261-6020; > Miller & Martin PLLC announced that Fax 404-261-3656l; www.balch.com. member Shelby R. Grubbs was appointed to the Board of Visitors of > Ford Harrison LLP announced that Geetha Adinata the Georgia State University College and Raanon Gal were named partners with the of Law. The board plays an important firm. Adinata concentrates her practice on all fac- role in helping the dean of the law ets of business immigration and I-9 and E-Verify school respond to particular challenges facing legal compliance. Gal focuses his practice on defending education. Members of the board are appointed by employers in employment discrimination, FMLA, the dean and are selected for their distinction as wage and hour, harassment and wrongful termina- leaders in law, business and service to the public, tion litigation. The firm is located at 271 17th St. and demonstrated commitment to the school. NW, Suite 1900, Atlanta, GA 30363; 404-888-3800; Fax 404-888-3863; www.fordharrison.com.

June 2013 43 Bench & Bar

> Chamberlain Hrdlicka named David Dreyer, Karen ment relations team and has worked in the Georgia Kurtz and Robert Jeffrey Waddell as shareholders. State Capitol for more than a decade, including five Dreyer is a commercial litigator who handles a wide years drafting legislation as legislative counsel and variety of business disputes for clients ranging from nearly two years as executive director of the Georgia large multi-national companies to start-up business- Legislative and Congressional Reapportionment es. Kurtz focuses her practice on income, estate and Office. The firm is located at 201 17th St. NW, Suite gift tax planning for businesses and high net worth 1700, Atlanta, GA 30363; 404-322-6000; Fax 404-322- individuals. Waddell maintains a multi-faceted prac- 6050; www.nelsonmullins.com. tice focused on the issues and concerns of business owners, including contracts, mergers, lending, acqui- > Rohan Law, PC, announced the relocation of their sition of real estate, corporate succession and wealth office. The firm will continue to practice in the areas preservation. The firm is located at 191 Peachtree of workers’ compensation claims, personal injury St. NE, 34th Floor, Atlanta, GA 30303; 404-659-1410; claims and criminal defense. The firm is located Fax 404-659-1852; www.chamberlainlaw.com. at 4360 Chamblee Dunwoody Road, Suite 208, Atlanta, GA 30341; 404-923-0446; Fax 404-923-7580; > Stites & Harbison, PLLC, welcomed www.rohanlawpc.com. Robert Schroeder to the firm’s Atlanta office as a partner. Schroeder joined the > Kilpatrick Townsend & Stockton LLP firm’s business litigation and healthcare announced the addition of David A. service groups. His practice focuses on Reed to the patent litigation team of the white collar criminal defense, business firm’s intellectual property department. litigation and health care litigation. The firm is Reed joined Kilpatrick Townsend as an located at 303 Peachtree St. NE, 2800 SunTrust associate in the firm’s Atlanta office. Plaza, Atlanta, GA 30308; 404-739-8800; Fax 404- The firm is located at 1100 Peachtree St. NE, Suite 739-8870; www.stites.com. 2800, Atlanta, GA 30309; 404-815-6500; Fax 404-815- 6555; www.kilpatricktownsend.com. > > Sherman & Howard LLC announced that Bryan Stillwagon joined the firm’s Atlanta office as an associate in the labor and employment group. The firm is located at 3399 Peachtree Road NE, Brock Gupta Callaway Jiles Suite 470, Atlanta, GA 30326; 404-567- 4415; Fax 404-567-4416; www.shermanhoward.com. > Carlock, Copeland & Stair, LLP, welcomed Lashley Ams Moulard McDonald Jefferson M. Nelson Mullins Riley & Scarborough LLP Starr, Carrie Starr Stiefel Wetzel announced that a team of attorneys who prac- L. Stiefel and tice education law joined its Atlanta office. Led Tyler J. Wetzel to the firm’s Atlanta office as associ- by partner D. Glenn Brock, the team of seven ates. Starr joined the general liability practice group. represents public school districts and education Stiefel joined the workers’ compensation team. professionals in matters ranging from drafting and Wetzel joined the commercial litigation practice oversight of legislation and policy to accreditation group. The firm is located at 191 Peachtree St. NE, issues and litigation on constitutional matters and Suite 3600, Atlanta, GA 30303; 404-522-8220; Fax other education-related disputes. Others joining the 404-523-2345; www.carlockcopeland.com. team are: Nina Gupta, partner; Carol Callaway, of counsel; Suzann Wilcox Jiles, of counsel; Laura > Taylor English Duma LLP announced the addi- Lashley, senior counsel; Kathryn Ams, associate, tion of 11 new attorneys to the firm’s Atlanta and Brandon Moulard, associate. office. Amy K. Bridwell joined the firm as a mem- Jimmy McDonald joined the firm as of counsel ber of the real estate, lending and finance, and in the Atlanta office. He is a member of the govern- lending, workout and foreclosure practice groups.

44 Georgia Bar Journal Bench & Bar

Stephanie Ford Capezzuto joined the firm as a member of the litigation and dispute resolution practice group. Sonnet C. Edmonds joined the firm LAWYER ASSISTANCE as counsel with the corporate and business practice group, where her practice focuses primarily on PROGRAM energy transactional matters. Mark E. Florak joined the firm as a member of the real estate, lending and finance practice group. Emily Stuart Horn joined the firm as a member of the corporate and business practice group. Hon. Michael D. Johnson joined the firm as a member of the litigation and dispute resolution practice group. Prior to joining Taylor Stress, life challenges English, Johnson served as a superior court judge in Fulton County. W. Randy King joined the firm as a member of the intellectual property practice group, or substance abuse? where he specializes in protecting patent rights in the computer arts. Eric A. Tanenbaum joined the firm as a member of the corporate and business and resort, hotel and hospitality practice groups. L. Kent Webb joined the firm as a member of the cor- We can porate and business practice group, where he represents technology clients and institutional clients in technology transactions. Allen S. Willingham joined the firm as a member of the litigation help. and dispute resolution practice group, where his practice focuses on products liability, toxic torts, professional liability, fraud, RICO and Qui Tam The Lawyer Assistance Program is a Actions, and insurance and reinsurance matters. free program providing confidential Jeff D. Woodward joined the firm as a member in the corporate and business practice group, where assistance to Bar members whose he represents start-up and second-stage entrepre- personal problems may be interfering neurs, privately-held companies and investors in a variety of corporate transactional matters. The with their ability to practice law. firm is located at 1600 Parkwood Circle, Suite 400, Atlanta, GA 30339; 770-434-6868; Fax 770-434-7376; www.taylorenglish.com. > The Hilbert Law Firm, LLC, announced two additions to the firm’s litigation department: Matthew J. Lee joined as of counsel and Steven Alan Herman joined as an Lee Herman associate. Lee is experienced in the areas of litigation, commercial and consumer collections, bankruptcy and creditors’ rights, with experience representing both creditors and debtors. Herman’s areas of practice include transportation law, insurance litigation, business litigation, franchise law, personal injury defense and contract disputes. The firm is located at 400 Perimeter Center Terrace NE, Suite 900, Atlanta, GA 30346; 770-551- Confidential Hotline 9310; Fax 770-551-9311; www.hilbertlaw.com. 800-327-9631

June 2013 45 Bench & Bar

> Hunton & Williams LLP announced that > Jonathan R. Levine, Alvah O. Smith, Rachel A. Robert L. Green joined the firm’s Atlanta Snider and John P. Wilson III announced their new office as a senior attorney and will lead firm name, Levine Smith Snider & Wilson, LLC. the firm’s transaction processing industry The firm has represented clients since 2001 and will initiative. The firm is located at 600 continue to practice exclusively in the area of family Peachtree St. NE, Suite 4100, Atlanta, GA law. The firm remains at its same location at One 30308; 404-888-4000; 404-888-4190; www.hunton.com. Securities Centre, 3490 Piedmont Road NE, Suite 1150, Atlanta, GA 30305; 404-237-5700; Fax 404-237- > Brian A. Becker announced the open- 5757; www.lsswlaw.com. ing of The Becker Law Firm, LLC, a solo practice dedicated to trusts and In Albany estates, business transactions and medi- > Watson Spence LLP announced that ation. Becker, a certified financial plan- Charles K. “Chuck” Wainright II ner candidate, is fluent in Spanish. The returned to the firm as a partner. firm is located at Horizon, Suite 1513, 3300 Windy Wainright was previously with the firm Ridge Parkway, Atlanta, GA 30339; 404-590-7578; from 1999 to 2008, having been named www.thebeckerfirm.com. partner in 2004. He handles a full array of complex litigation matters, specializing in medi- > MendenFreiman LLP announced that cal malpractice defense. The firm is located at 320 Paige P. Baker was promoted to part- Residence Ave., Albany, GA 31701; 229-436-1545; ner. A former tax accountant, Baker Fax 229-436-6358; watsonspence.com. practices in the firm’s business, estates and trusts practice groups, where she In Athens focuses on the areas of business succes- > W. H. “Kim” Kimbrough Jr. announced the open- sion planning, business transactions and gover- ing of The Kimbrough Law Firm, concentrating nance, with a particular emphasis on McDonald’s in asset protection, business, tax and estate plan- franchises, estate and trust planning, and estate ning, elder law and VA planning. Kimbrough was administration. The firm is located at 2 Ravinia previously a partner of Fortson, Bentley & Griffin, Drive, Suite 1200, Atlanta, GA 30346; 770-379-1450; P.A. The firm is located at 1480 Baxter St., Suite B, www.mendenfreiman.com. Athens, GA 30606; 706-850-6919; Fax 706-850-7115; www.kimbroughlawfirm.com. > Morris, Manning & Martin, LLP, announced that Edmund Emerson III In Columbus joined the firm as a partner in the > Hatcher, Stubbs, Land, Hollis & Rothschild, LLP, Atlanta office. Emerson works in the announced that D. Nicholas Stutzman became a employee benefits, compensation, cor- partner of the firm. Stutzman practices with the porate M&A and tax practices. The firm firm’s real estate group with a focus on both resi- is located at 3343 Peachtree Road NE, 1600 Atlanta dential and commercial real estate, as well as wills, Financial Center, Atlanta, GA 30326; 404-233-7000; probate, contracts, small corporate entities and land Fax 404-365-9532; www.mmmlaw.com. disputes. The firm is located at 233 12th St., Suite 500, Columbus, GA 31901; 706-324-0201; Fax 706- > Littler Mendelson, P.C., announced the addition of 322-7747; www.hatcherstubbs.com. Jeffrey Mintz to its Atlanta office as a shareholder. Mintz was previously a partner with Jackson Lewis In Cumming LLP and formerly Jackson Lewis’ managing part- > Atlanta-based law firm Bovis, Kyle & Burch, LLC, ner for its Atlanta office. He is experienced in all changed its name to Bovis, Kyle, Burch & Medlin, aspects of traditional labor, including preventive LLC, to reflect the strategic growth of the firm and labor relations and representation elections, col- expansion of their Forsyth County office. While the lective bargaining, as well as operational planning firm’s name changed to reflect its expanding fam- and strike preparation, contract administration and ily law practice under the leadership of Charles labor arbitrations, and injunction proceedings. The Medlin, their commitment to representing clients firm is located at 3344 Peachtree Road NE, Suite in litigation, corporate, labor and employment, 1500, Atlanta, GA 30326; 404-233-0330; Fax 404-233- workers’ compensation, insurance, surety fidelity, 2361; www.littler.com. self-insured and construction law matters endures. Along with the firm’s expanded Cumming office

46 Georgia Bar Journal Bench & Bar

and name change, Adam C. Grafton was elevated In Nashville, Tenn. to partner in the firm’s workers’ compensation > Andrew C. Beasley announced the formation of the practice group. The firm is located at 327 Dahlonega Law Office of Andrew C. Beasley. Beasley, a former St., Suite 1703-A, Cumming, GA 30040; 770-391- Florida state prosecutor, focuses his practice on DUI 9100; Fax 770-668-0878; www.boviskyle.com. and criminal defense. The firm is located at 144 Second Ave. N, Suite 100, Nashville, TN 37201; 615-620-5803; In Macon Fax 615-369-8754; www.andrewcbeasley.com. > Wallace Miller III, LLC, announced that J. Kevin Walters joined the firm. In Philadelphia, Pa. Walters’ practice areas include insur- > Gordon & Rees LLP announced that Ann Thornton ance law, tort and contract litigation, Field joined the Philadelphia office as a partner in local government law, corporate law the firm’s commercial litigation, aviation and insur- and governance, contracts, health care ance groups. Her practice focuses on commercial law, aviation law, appellate law and general corpo- litigation, aviation and products liability matters. rate transactions. Walters previously served as in- The firm is located at One Commerce Square, 2005 house counsel for an Atlanta-based aerospace engi- Market St., Suite 2900, Philadelphia, PA 19103; 215- neering group and as general counsel for health and 561-2300; Fax 215-693-6650; www.gordonrees.com. information technology corporations. He is a regis- tered mediator for both general civil and domestic In Tamarac, Fla. cases. The firm is located at 509 Forest Hill Road, > Michael R. Brodarick joined PuroSystems, Inc., Macon, GA 31210; 478-474-4145; Fax 478-474-4719. as its in-house general counsel. Founded in 1990, PuroSystems, Inc. is a leader in the franchise resto- > James Bates Brannan Groover LLP ration industry, having launched PuroClean, which announced that Kathryn S. Willis joined has become one of the fastest growing property the firm as an associate. Her practice damage remediation franchise organizations in areas include insurance, general liability North America. PuroSystems, Inc., is located at defense, business and commercial litiga- 6001 Hiatus Road, Suite 13, Tamarac, FL 33321; 800- tion and eminent domain. The firm is 775-7876; Fax 800-995-8527; www.puroclean.com. located at 231 Riverside Drive, Macon, GA 31201; 478-742-4280; Fax 478-742-8720; jamesbatesllp.com.

How to Place an Announcement in the Bench & Bar column If you are a member of the State Bar of Georgia and WANT TO you have moved, been promoted, hired an associate, taken on a partner or received a promotion or award, we would like to hear from you. Talks, speeches (unless they are of national stature), CLE presentations SEE YOUR and political announcements are not accepted. In addition, the Georgia Bar Journal will not print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers, Chambers USA, Who’s NAME IN Who, etc.). Notices are printed at no cost, must be submitted in writing and are subject to editing. Items are printed as space is available. News releases regarding lawyers who are not members in good standing of the State Bar of Georgia will not be printed. For more information, please contact Stephanie Wilson, PRINT? 404-527-8792 or [email protected].

June 2013 47 Office of the General Counsel

What a Bargain! by Paula Frederick

“ mmmm . . . boss?” your assistant hovers

in the doorway looking nervous. “I know U you were skeptical about that two-for-one coupon, but look at all the responses we’ve gotten!”

Shocked, you scan the printouts she drops on your desk. “I didn’t realize there were that many people out there needing a will. . .” you marvel. “You mean two wills,” your assistant reminds you. Buy One, “We got a total of 858 responses. The phones are Get One already going crazy with people wanting an appointment before the coupons expire next month.” “Eight hundred and fifty-eight times two—that’s more than 1,700 wills! You know, they say that lots of folks don’t ever get around to using their coupons,” you say hopefully. “Even if most of them forfeit, we’re looking at One concern is whether the payment arrangement doing hundreds of wills in the next 45 days,” your with a “deal of the day” site constitutes fee splitting. assistant reminds you. “Want me to look into hiring Some opinions interpret the lawyer’s payment to the some assistants?” site owner as paying for marketing or advertising, not “I’ll have to check the budget and let you know,” as a legal fee. Others find that the amount paid for the you reply. “We don’t have any profit margin on this coupon is payment of a legal fee, so that the lawyer deal; it’s a two-for-one so we’re making half our usual may not pay the site owner a percentage of each sale. rate! I just thought it was a good way to get my name False advertising is another concern for the states out there. . . . I had no idea we’d go from famine to feast that prohibit use of “deal of the day” sites. A lawyer so quickly!” may advertise a flat rate for a “garden variety” service, Now what? but find that nine times out of 10 the buyer’s situation Offering an internet-based discount deal for legal is more complex, requiring extra time and money. services might seem like a good idea for a lawyer in In addition to these concerns, the lawyer must be need of business, but be careful what you wish for. prepared to conduct a conflicts check for each poten- Stories abound of sellers being overwhelmed by more tial client who has bought a coupon and to refund the business than they reasonably can handle. Lawyers run buyer’s money if conflicts prevent the representation. afoul of the ethics rules if they do not provide compe- Georgia has not weighed in on the propriety of using tent representation to every client. “deal of the day” sites, but stay tuned. Several states have issued ethics opinions on the propriety of using a “deal of the day” model to promote Paula Frederick is the general counsel for and provide legal services. Some find the situation so the State Bar of Georgia and can be fraught with potential ethics problems that they pro- reached at [email protected]. hibit it altogether. Even the opinions that do not find it unethical advise that a lawyer use extreme caution before offering to provide services in this way.

48 Georgia Bar Journal Jackson Lewis llp, one of the nation’s largest and fastest-growing workplace law firms, is pleased to announce its Atlanta office was named the

Law Firm Litigation D e pa r t m e n t o F t h e Y e a r

for labor and employment in a survey conducted by the American Lawyer publication, the “Daily Report.”

With 750 attorneys practicing in 52 locations nationwide, Jackson Lewis provides creative and strategic solutions to employers in every aspect of employment, labor, benefits and immigration law. Recognized as a firm that “corporate counsel would most like to have by their side in head- to-head competition” in the BTI Litigation Outlook Report 2013, our firm has one of the most active employment litigation practices in the U.S. To learn more about our services, please visit us at www.jacksonlewis.com.

a member of

All we do is work® LEGAL ADVERTISEMENT JACKSON LEWIS LLP • 1155 Peachtree Street N.E. Suite 1000 • Atlanta, GA 30309 • 404.525.8200 Workplace Law www.gabar.org the Hardest Working Site on the Web Pay Your Dues  Online Directories  State Bar of Georgia Handbook  Join a Section  Young Lawyers Division  Information and Events  Consumer Pamphlet Series  Check CLE  Vendor Directory  Related Organizations  Fastcase  Cornerstones of Freedom  Conference Center  Public Information  Address Change  Letter of Good Standing  Ethics Make it your Homepage!

June 2013 49 Lawyer Discipline

Discipline Summaries (February 14, 2013 through April 30, 2013)

by Connie P. Henry

Voluntary Surrender/Disbarments but thereafter stopped responding to his calls, can- Zondra Taylor Hutto celled his telephone service and closed his office. Tuscaloosa, Ala. Admitted to Bar in 1996 Charles Bailey Mullins II On March 4, 2013, the Supreme Court of Georgia Princeton, W.Va. disbarred attorney Zondra Taylor Hutto (State Bar No. Admitted to Bar in 1988 023157). Hutto pled guilty in the U.S. District Court for On March 18, 2013, the Supreme Court of Georgia the Northern District of Alabama, Western Division, to accepted the Petition for Voluntary Surrender of one felony count of withholding information on a crime License of attorney Charles Bailey Mullins II (State Bar (misprision of felony). Hutto was sentenced to three No. 005220). Mullins entered a guilty plea in the U.S. months in prison followed by 12 months on supervised District Court for the Southern District of West Virginia release, plus the payment of fines and restitution. to a felony count of attempting to evade or defeat tax.

Scott Patrick Archer Thomas W. Dickson Duluth, Ga. Atlanta, Ga. Admitted to Bar in 1997 Admitted to Bar in 2002 On March 4, 2013, the Supreme Court of Georgia On March 25, 2013, the Supreme Court of Georgia disbarred attorney Scott Patrick Archer (State Bar No. accepted the Petition for Voluntary Surrender of 021317). The following facts are deemed admitted by License of attorney Thomas W. Dickson (State Bar No. default: A client retained Archer to represent him in 482888). While Dickson was employed by a law firm post-trial motions and an appeal in a criminal case. from December 2008 through February 2012, he repeat- Archer filed a motion for new trial and stated that he edly directed the accounting department to transfer would submit a supplemental motion and brief after he funds from the firm’s trust account to his personal reviewed the trial transcripts. Over several months, the account. He did not have authority from the firm or the client paid Archer $2,500 to pursue the motion for new clients to direct such transfers, and he did not properly trial. After filing the motion, Archer did nothing else account for the transfers. in the case and has not contacted his client or refunded any part of the fee. Marion Jeanne Browning-Baker In another matter, a client retained Archer to repre- Saint Thomas, V.I. sent him in efforts to obtain money owed to the client Admitted to Bar in 1992 by another individual in a lawsuit the client had filed On April 15, 2013, the Supreme Court of Georgia in magistrate court. The client gave Archer the paper- disbarred attorney Marion Jeanne Browning-Baker work and $500. The court entered a judgment in favor (State Bar No. 090120). The following facts are deemed of the client for $10,500. Thereafter, the client paid admitted by default: Archer a retainer of $300 to represent him against Respondent at one time lived in Germany, and another party who owed the client money. They her practice included assisting members of the armed agreed that the client would pay the balance of the forces with legal issues. In 2007, a retired Army offi- fee when Archer had prepared the necessary papers cer retained her to represent him in his contested for the case. The client contacted Archer a few months divorce case. Respondent associated counsel in North later and Archer told him everything was going well, Carolina to file the divorce there. She told counsel that

50 Georgia Bar Journal the divorce would be uncontested and unsworn affidavit. Hooks did and that the parties would consent not respond to telephone calls and to jurisdiction. The North Carolina emails from the client. Summary court dismissed the complaint for judgment was granted the oppos- lack of service and questioned why ing party but Hooks did not inform the complaint was filed there since his client. Hooks failed to supply the couple had lived in Germany the client file to replacement coun- for more than 10 years. The North sel upon request. Carolina attorney also learned that In another case, despite having the wife had retained Respondent been placed on interim suspen- in 2003 with regard to her marriage sion on Dec. 2, 2010, Hooks com- and potential divorce. Respondent municated with opposing counsel did not withdraw from the case discussing discovery responses and she did not advise her client and an upcoming status confer- of the developments in the North ence, represented his client at the Carolina case. Instead, she associat- Dec. 13 status conference, and with ed South Carolina counsel to file the opposing counsel filed a joint sta- divorce action there. Respondent tus report on Dec. 15. Hooks did told counsel that her client would not inform the court of his suspen- meet the residency requirements sion until Jan. 18, 2011, and he did and that his wife would not contest not inform his client or opposing jurisdiction, although neither state- counsel of his suspension. ment was true. In her written agree- A grievance was filed by an attor- ment with her client, Respondent ney who reported that Hooks, after stated that he could not directly being suspended from the practice contact any local counsel that she of law, continued settlement nego- retained on his behalf and told him tiations with the attorney, reaching that “it [was] required by [her] an agreement on Dec. 14, 2010, and Hooks received $5,556.92 in fidu- state bar.” Although the client paid sending settlement paperwork to ciary funds to be used to pay 2007 Respondent more than $12,000, she the attorney on Jan. 6, 2011. county taxes. Despite having told failed to complete his divorce and A client hired Hooks in 2009 the title insurance companies that when he terminated her services, to represent her as a plaintiff in a he was researching the issue of the she failed to return his complete file civil matter. Hooks responded to fiduciary funds, Hooks did not pay until after this disciplinary proceed- the defendant’s requests for dis- the county taxes, and he did not ing was filed. Respondent did not covery, but he did not respond to return the funds to the lender or participate in good faith in the dis- a request to depose the client and the borrower. The lender paid the ciplinary process and she willfully did not inform the client of the taxes and delinquency fees to the ignored discovery obligations. request. Hooks did not respond to county tax commissioner. a good-faith letter sent by coun- Kevin Eugene Hooks sel and did not inform his client Charles W. Field Peachtree City, Ga. of the letter. After a hearing, the Lawrenceville, Ga. Admitted to Bar in 1993 court dismissed the complaint with Admitted to Bar in 1973 On April 15, 2013, the Supreme prejudice for violation of the dis- On April 29, 2013, the Supreme Court of Georgia disbarred attor- covery rules. The client was unable Court of Georgia accepted the ney Kevin Eugene Hooks (State Bar to communicate with Hooks. Petition for Voluntary Surrender No. 365201). The following facts Two former clients jointly hired of License of attorney Charles are deemed admitted by default: Hooks in 2010 to pursue a civil W. Field (State Bar No. 259350). A client hired Hooks to assist him lawsuit alleging employment dis- A client retained Field to repre- in a claim of employment discrimi- crimination. They paid Hooks sent her in matters resulting from nation. Hooks did not respond to $2,000 but he failed to keep them her daughter’s death, including discovery requests, the motion to informed about the case. When guardianship of her grandson, compel, or the motion for sanc- the clients learned of his suspen- a conservatorship to settle her tions. Hooks filed a response to the sion, they requested their files but daughter’s estate for her grand- motion for summary judgment but, received no reply. son and a child support arrear- when directed by the court to sub- In 2009 an attorney reported age owed by the child’s father. mit further information, Hooks did that Hooks had served as a settle- Field advised the client that she not file a response and attempted ment agent for a real estate transac- could pay his fee from the estate to submit an unsigned, undated, tion in March 2008, during which but failed to tell her that she first

June 2013 51 needed court permission. The cli- ditions for reinstatement. From Because his IOLTA bank held large ent paid fees in excess of $12,000 2008 through 2011 Proctor accepted settlement drafts for up to 30 days to Field, but he failed to perform money to represent clients and then or longer, Howard had decided the work expected. The client was failed to adequately communicate to deposit his own personal funds forced to resign as conservator with or represent them. He also into his IOLTA, so that when set- due to her use of estate funds to failed to appear at several court tlements were finalized, he could pay Field’s fees. Eventually, the hearings and trials. Moreover, immediately distribute the client probate court entered a judgment Proctor initially failed to respond proceeds without waiting for the against the client for $14,579.46, to the State Bar’s complaints. When drafts to clear. When the settle- representing fees paid to Field, the Court suspended Proctor on ments did not occur as planned, with interest. The client filed a fee an interim basis in 2011, however, Howard began withdrawing the arbitration petition with the State he ceased his practice of law and personal funds deposited earlier Bar and was awarded $11,000, but referred his clients to other attor- as day-to-day operations required. Field has been unable to make neys. He then submitted documents There were no other IOLTA viola- any payments. indicating that during the relevant tions, and without waiting for the Field expressed remorse for his time he was suffering from various State Bar to ask, Howard immedi- misconduct and regret that he is psychological, emotional and medi- ately changed his firm’s accounting unable to pay the fee arbitration cal issues that rendered him inca- practices to ensure that no other award. Field had no prior disci- pable of practicing law or respond- violations would occur. pline and in recent years has suf- ing to the disciplinary authorities. fered extraordinary personal losses While his incapacitation continues Kenneth A. Glenn and medical impairments that have today, experts indicate that with McDonough, Ga. rendered him incapable of return- proper medication and treatment Admitted to Bar in 1988 ing to the practice of law. Proctor can redevelop the capacity On April 15, 2013, the Supreme to perform his duties responsibly. Court of Georgia accepted the Suspensions Prior to reinstatement, Proctor must Petition for Voluntary Discipline of Carol Chandler provide proof of restitution along attorney Kenneth A. Glenn (State Princeton, N.J. with other provisions. Bar. No. 001170) and imposed Admitted to Bar in 1981 a Public Reprimand. Glenn was On March 4, 2013, the Supreme Public Reprimand retained to pursue a partition Court of Georgia suspended attor- Neal Henry Howard action. He filed the action and took ney Carol Chandler (State Bar No. Columbus, Ga. other actions, but failed to complete 120525) for 18 months with condi- Admitted to Bar in 1991 the matter, and failed to promptly tions for reinstatement. The follow- On Feb. 4, 2013, the Supreme provide a fee refund. He did finally ing facts are admitted by default: Court of Georgia accepted the provide the refund (the Court had A client paid Chandler $1,710 to Petition for Voluntary Discipline of rejected his previous Petition for represent him in an immigration attorney Neal Henry Howard (State Voluntary Discipline because he matter. Chandler did not return Bar. No. 371089) and imposed a had not paid the refund). the client’s calls or otherwise com- Public Reprimand. Howard mis- municate with him. Chandler did takenly provided the wrong depos- Interim Suspensions not file documents as she agreed it slip for a litigation funding check Under State Bar Disciplinary to do and has not returned the fee to one of his clients, so the check Rule 4-204.3(d), a lawyer who paid by the client. In aggravation of was incorrectly deposited into receives a Notice of Investigation discipline the special master noted Howard’s firm operating account and fails to file an adequate that Chandler is currently under rather than his IOLTA account. response with the Investigative suspension in Pennsylvania. Prior Howard then issued the client a Panel may be suspended from the to reinstatement, Chandler must check drawn on his IOLTA for practice of law until an adequate refund $1,170 to her client. the amount mistakenly deposited response is filed. Since Feb. 14, into the operating account ($3,552) 2013, five lawyers have been sus- Michael Rory Proctor and a check to himself for $10,000. pended for violating this Rule and Gainesville, Ga. The check to the client cleared, two have been reinstated. Admitted to Bar in 2004 but the check Howard issued to On March 18, 2013, the Supreme himself did not, thus causing the Connie P. Henry is the Court of Georgia accepted the IOLTA to become overdrawn. The clerk of the State Petition for Voluntary Discipline $10,000 check was for personal Disciplinary Board and of attorney Michael Rory Proctor funds remaining from an earlier can be reached at (State Bar No. 588428) and imposed deposit Howard made in anticipa- [email protected]. an indefinite suspension with con- tion of two large client settlements.

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www.stateBT.com MEMBER FDIC Equal Housing Lender Law Practice Management Ten Steps to Squeezing More Time Out of Your Day by Natalie R. Kelly

’m always amazed at how much a person can do

in a day. I am also totally aware of how much I time one can waste in a day. If you are in need of help with time management, here are some tips and tricks to help you get a little more time out of your next 24 hours. The tips and tricks are followed by a list of time management resources you can obtain from the Law Practice Management Program’s Resource

Library—when you have time! Plan Your Day

It goes without saying that you need to know what you have on your plate. Sometimes, however, it may seem as if you’ve ordered way too much, and can’t figure out where to start with planning how to tackle accomplish certain tasks, and include a review of it all. First, take a deep breath, and begin by writing your personal routines of getting up and going each down every possible thing you can think of that you day in this process. When you plan your day, include need to accomplish. Barring having to run to the calendar times for your personal routine items, too. courthouse for a hearing or some other “must-do- Routines help keep items that suck up your time from right-now” activity, you should take the time to create creeping into space in your day that was intended to a written list of what you need to do. Visualizing your be time for something else. workload can help you plan what needs to happen each day. A good trick is to use a calendaring program Stop Trying to Multitask to record not only deadlines, but the actual times you I think society has helped us love the term “multi- will do certain items. The Plan Your Day exercise alone tasking,” but it’s now come back to haunt us in many can help you get your days organized and will likely respects; think texting and driving! Instead of trying save you some time in the long run. to work on multiple items at once, learn to create clear outlines for when you will accomplish individual Set Daily Routines tasks. Concentrate on finishing tasks one at a time, but By now it should be clear that there are certain efficiently instead. This focused approach to getting things you do each day. But, they may be the very things done will help save you time. Plus, the blissful things that are robbing you of that extra time. Review feeling of accomplishment alone can help you feel as your day to see if you can streamline or eliminate if you’ve gotten more done, and perhaps, with some time-wasting activities. Create “blocks of time” to time to spare.

54 Georgia Bar Journal Organize Your extra minutes just learning to navi- training those around you is not a Workspace gate the inbox quickly with search- waste of time either. ing, sorting and coding features in You should strive to have a well- email programs. Master Your Mobile organized workspace. Not fum- Devices bling around for items on your Manage Phone Calls desk or digging through files try- Set up specific times to return Learning shortcuts for using the ing to find information can be eye- phone calls and listen to voice mail. devices you use on a daily basis can opening in terms of time manage- Try to complete returning calls also save you time. Texting (not ment. Make sure you are comfort- across certain blocks of time, from while driving) quick replies where able, have furniture placed so that 8 – 8:30 a.m. and 2 – 2:30 p.m. daily. appropriate and taking notes on it is ergonomically correct and pos- You might find it easier to return mobile units can save you time. sess the tools you need to get your calls as soon as you come into the Use productivity apps and pro- job done. Wasting time just getting office and just before you leave each grams to assist with keeping you to what you need to do a job takes day, with a quick check of voice mail on task. You can even use mobile away from the time you would be and messages in the middle of the devices to help you plan your day. using to do the work. This orga- day. Hint: Redirect or silence the phone Time management tools and nization should extend from your when you don’t want to be disturbed. A resources abound. Plan to check physical workspace to any com- ringing phone always draws one’s out these resources from the Law puter systems you use, too. attention and can cause you to lose Practice Management Program focus and waste time. Resource Library: Manage Interruptions Interruptions are unavoidable. Use Reminder Systems Books They will happen, but it’s how Now that you’ve learned to cre- n The Time Trap they are managed that affects how ate a plan for your day, you will n Practical Systems: Tips for much time you spend on the diver- likely need reminders for the items Organizing Your Law Office sions. Determine if the interruption in your plan. Use people (assis- n Time Management for Attorneys: requires your immediate atten- tant, paralegals, family, etc.) and A Lawyer’s Guide to Decreasing tion. If not, then work to include electronics (smartphones, tablets, Stress, Eliminating Interruptions it on your daily plan for another computers, etc.) to remind you of & Getting Home on Time day/week/month. Interruptions upcoming events and don’t spend n Legal Productivity: How Project include the folks who pop their time worrying about them. The Management, GTD, & Tomatoes heads in your office to ask a quick reminder system will save you time Can Transform the Way You question or give you an update. So by helping you to stop wasting Practice Law use a system of assessing the inter- time going back over what you’ve n Eat That Frog! ruption, dealing with it quickly planned. Be confident in your plan- n Leave the Office Earlier (only if it’s a must-do-now item) or ning. As you plan your day, take putting the interruption in its own the time to include everything you CDs/DVDs “time out” until it fits in your daily need. Plan to pick up or get the n “Live Your Best”—Audio Series plan for another time. supplies you need to do a particular n “Professional Communications task or plan your time to prepare for in the Law Office: Telephones, Tackle Your Email an upcoming event. Reminders can Voicemail and Beyond” Overflowing inboxes and con- help save time by eliminating extra n “Successful Time Management stantly checking on messages after time you might have to use to deal Strategies for Support Staff” getting “the ding” that a new mes- with something you forgot. n “Telephone Answering Strategies” sage has arrived are common time- wasters. Learn systems to organize Take Training Seriously All of these resources are avail- messages, and use a system for Spending 20 minutes reviewing a able for checkout. Call 404-527- when and how you will respond. help menu on a feature of a program 8772 for more information. Archive and store messages so you can save you hours in the future. can easily access them when you Don’t waste time because you Natalie R. Kelly is the need to. Hint: Just because you have didn’t know that you could have director of the State to do something based on an email pushed “that button” to accomplish Bar of Georgia’s Law doesn’t mean it should just sit in your what you needed. Training teaches Practice Management inbox to remind you. You can either the correct way to utilize tools, and Program and can be deal with the message immediate- frees up time you might have oth- reached at nataliek@ ly, or move it for you to deal with erwise wasted trying to figure out gabar.org. at a later time. You can gain a few things on your own. Remember that

June 2013 55 Pro Bono Honor Roll

The Pro Bono Project of the State Bar of Georgia salutes the following attorneys who demonstrated their commitment to equal access to justice by volunteering their time to represent the indigent in civil pro bono programs during 2012. * denotes attorneys who have accepted three or more cases

GEORGIA LEGAL Jackson R. Langdale Carol Dew Karen M. Early Alan F. Rothschild Jr. SERVICES PROGRAM J. Allen Lawson* Stephen Noel Michael Eddings Richard Thomas Tebeau* Marnie H. Watson John V. Hogan* Gregory Spencer Ellington Shevon Sutcliffe Thomas* ALBANY REGION William O. Woodall Jr.* Willie Woodruff Richard Flowers Raymond Tillery* Walter H. Burt III* Jessica R. Young* Steven Campbell* Larry Gordon William Tucker Gregory A. Clark* Laura Gower Robert Pate Turner III Cawthon H. Custer* ATHENS REGION AUGUSTA REGION Maxine Hardy Jorge Vega Gail D. Drake* Arthur Archibald Edward J. Coleman III Sherry Goodrum* Alfonza Whitaker Michael Hall Jason Braswell Adam King Maxine Hardy Alonza Whitaker J. D. Honeycutt Adam Cain David S. Klein Tricia Hargrove Joseph Wiley Jr.* John R. Ledford* Donarell Green* Sam Nicholson Russell Hinds Dorothy Williams* Thomas G. Ledford* Ernest Harris Richard T. Pacheco II Michelle Huiett Robert Wilson* William E. Mitchell IV Benjamin Johnson Carl S. Schluter Ronald Iddins* Ketonga L. Wright* John M. Moorhead* Adrian Pritchett Benjamin Land Kimberly Harris* Hugh O. Morris Jr. Kent Silver COLUMBUS REGION Thomas Lakes Tina Dufresne* Amy L. Purvis* Eugene Novy Walter Fortson* James Lamb G. Leonard Liggin Heather B. Taylor* Robbie Colwell Weaver Gary Abell Lori Leonardo Donald Snow* Judy H. Varnell* Marion Ellington Jr. Tom Affleck III Cynthia Maisano Cheryle T. Bryan* Douglas L. Henry* William Arey* Christopher L. Meacham DALTON REGION Bruce W. Kirbo Jr. Raymond L. Crowell* Jacob Beil Lauren Mescon Rodney Quarles Danny C. Griffin* Irene Serlis Gary Bruce Elizabeth McBride Todd Johnson Edward R. Collier* David Wallace William A. Buchanan Joshua McKoon Jennifer Baxter W. T. Gamble Nancy Maddox James E. Butler Jr. William Dallas NeSmith III William Bell Jr. K. Joy Webster Thomas Calkins* Richard Childs M. Linda Pierce Fred Steven Bolding Hayden L. Willis* Joshua Welch Catherine Coppedge John Christopher Rabon Nancy Burnett Shelba D. Sellers Torin Togut Tracy Courville Steven W. Ray Jessica Oliva Calderin Joseph I. Carter Lynn Perkins-Brown Marc D’Antonio David Rayfield Robert Cowan Christina L. Folsom* Roderick Martin Peter J. Daughtery Kathryn Rhodes* James T. Fordham Jeffrey Granillo Susanna Patterson Christy E. Draper Dean C. Bucci Harold Cronk Michael D. Hurtt Kristen Quinton* Robert J. Kauffman Jana L. Evans Brian Daly* Robert Jenkins John D. Reeves* Corey B. Martin Chad D. Plumley David Dickey David Johnson Jenny Martin Stansfield* Shirleen F. Matlock Ana M. Rountree W. Lamar Fields Curtis Kleem George Boone Smith IV* Philip S. Coe Brad J. McFall Elisa Frasier* Jerry Moncus Ken Smith* Ginny F. Duhon Michael D. McRae Doug Georgio Marcus Morris Kim Holland Stroup* Anne S. Myers* Robert T. Monroe Blake Greco Katherine O’Gwin Stuart Walker John W. Mrosek George E. Mundy Jeffrey Hanna James Setters Martin Wilson Sharon I. Pierce William G. Hammonds Stephen Harris* Matthew Thames James M. Wootan Shelia L. Rambeck* John J. Martin John Hewson Joye Thomas Wills Brenda Youmas* Dinah L. Rainey Albert A. Myers III Lindsey Hobbs Philip Woodward Laura Burns Timothy J. Crouch Michael T. Nations W. Thomas Hudson Keith Edwards Richard Buttimer Floyd H. Farless John A. Nix Patrick Jarrett Thomas Lindsay Hoganne Harrison-Wilson James R. McKay Paul J. Oeland IV Daniel Jenkins* Charles Wright Robert Mock Jr. Julius W. Peek Jr. Maureen E. Wood Francis Kearney Marshall Bandy Claire Chapman* David M. Bessho G. Alan Dodson Amanda Love Horace Kimbrell Sawyer Bridgette Cooper Emory L. Clark* Lisa D. Loftin Jon Maire* Robert Stultz Jocelyn Daniell* Mark D. Euster Wesley T. Leonard Jerold Murray* Archibald Farrar Jr. Rodney Davis Karen D. Fultz Kimberly C. Harris James Nadeau* Melissa Gifford Hise Terry Everett* Richard B. Herzog Jr. Dean Phillips* Anna M. Johnson Danielle D’eor-Hynes* Jennifer A. SAVANNAH REGION Janice Powell Carrie Trotter Gail C. Robinson* Kennedy-Coggins Charles H. Andrew Francesca A. Rehal* Steven Bennett Jimmy Frank Kirkland Elisabeth Branch R. Krannert Riddle* Floyd H. Farless PIEDMONT REGION Dorethea McCleon Marc Bruce Christopher Rouse Terry Haygood Tami M. Conner Alycen A. Moss Melissa Calhoun Mark Schaefer Robert S. Toomey Leslie V. Simmons Shalamar J. Parham DuAnn Davis Michael Schiavone Keith J. Williams Mary Faye McCord Dara D. Paulsen* Bruce Daniel Dubberly Bryan Schivera Stephen Woodward Anthony N. Perrotta Laquetta S. Pearson Sharri Edenfield Channell Singh* Claudia Burgess William E. Brewer Timothy B. Phillips Matt Hube Chris Smith Cortney Stuart Rita D. Carroll Carlos M. Polanco III Lorenzo Merritt* Elizabeth Thompson Jennifer A. Certonio Anthony B. Sandberg* Donald Wakeford Adam Cerbone MACON REGION T. Michael Flinn Andrew M. Stevens David W. Adams Verna L. Smith* Anita M. Lamar Sharon V. Blake-Palmer Kathleen Aderhold* BRUNSWICK REGION Daniel King Thomas E. Parmer Madge R. Buckle Solomon Amusan Hon. William J. Edgars* Donna Culpepper Nathaniel L. Smith Lisa J. Sowers Randy Bart Mary Beth Boone Keri Foster Thompson Reagan Bush Torin Togut Tom Bateski* Robert Cunningham* James E. Turk Carl H. Hodges Stacey Lynn Butler Cietus Bergen* Carlton Gibson* David F. Addleton Delisa A. Williams Michele R. Clark Nicole Bergeron* Paul A. Schofield* Jonathan Alderman Murble A. Wright Katherine E. Fagan John Paul Berlon Susan Thornton* G. Morris Carr Andrea T. Bell-Pitt Pandora E. Palmer Keith Berry* Verna Smith Christy Childers* Delia T. Crouch Laura L. McCook Vincent Bick* Samantha F. Jacobs Ashley Deadwyler* G. Alan Dodson Thomas J. Browning Jay Blackburn Brenda Carver* John P. Fox* Emily Gross Jeffrey D. Bunch Thomas Bordeaux Doree R. Avera* Emmett Goodman Walter S. Haugen Cam S. Head Rob Brannen* Paul T. Kawas Kathleen Hall Doris C. Orleck Dawn R. Levine Brian Campbell Karen Jenkins Young* Selinda Handsford* Lisa R. Reeves Robert S. Toomey Tony Center Willis Blacknall III* Jeffrey B. Hanson Shiriki L. Cavitt Larry J. White Kristin Cerbone* Mary Jane Cardwell* Jennifer Haskins Donald S. Horace Tina Stephens Dufresne Will Claiborne Jeffrey D. Garmon* Jane M. Jordan Caroline Roney Reed Edmondson Jamie Clark* Kristi L. Lowrey Kyle Krejci Derick C. Villanueva John L. Strauss Michael Conner Huey W. Spearman* Walter E. Leggett Jr. Robert A. Chambers* Mario S. Ninfo Denise Cooper Talethia R. Weekley Laura McCook* Karmel S. Davis William M. Waters Dorothy Courington ATLANTA LEGAL Sydney Jakes Taylor Tribble Dara Paulsen H. Durance Lowendick AID SOCIETY Heather Karrh Kristy Weathers Joe Matthew Queen Seth C. Martin Downtown Office Family Isabella Lee Laura Zshach Katherine Knudsen Patricia Annaleece Law Project Cheryl Legare UPS Guardianship Project James Ausenbaugh McKenzie Courtney Dixon Marlena Middlebrook Tammy Caldwell Roderick Martin Albert F. Nasuti Tiffanie Kendricks Hon. Nora Polk* Jennifer Liotta Dawn Levine Patricia O’Kelley Elizabeth Raskin* Tiffanie Purvis Wes McCart Elizabeth Raskin Robert Matthew Reeves Laura Whitman Aisha Slade Tejas Patel Thomas J. Reichard* The Georgia Association Deborah Stewart Jil Termini GWINNETT OFFICE Summer E. Riddick II of Black Women Attorneys Troutman Sanders Travis D. Andres Dorothy B. Rosenberger Section Conflicts Panel Wills Project CLAYTON COUNTY Ethel D. Anderson Jodie E. Rosser Disability Rights Project Tom Bosch PRO BONO PROJECT Steven R. Ashby S. Carlton Rouse Claire Moynihan* Jeremy Burnette Valrie Y. Abraham Cha’Ron A. Ballard Adam M. Stein Georgia Senior Veira Fitzgerald Allan Alberga Wallace M. Berry Jr. Samuel Johl Stern Legal Hotline Holly Hill Glen Ashman Clarissa Farrier Burnett Laura J. Stewart Shelia Connors Jihan Jenkins Emmett J. Arnold IV Louis Thomas Cain Jr. Jammie Taire Elsie Draper* Judy Miller Joseph Chad Brannen Richard A. Campbell Charles A. Tingle Jr. Jay Fox* Hannah Morris Hugh G. Cooper Emory L. Clark* John Andrew Tomlinson Gordon Hamlin* Jeff Nix Daise Constance Glenn E. Cooper John E. Tomlinson Randall Hughes* Evan Pontz* Monroe Ferguson Charles Vincent Crowe Nelson H. Turner Norman Slawsky Kidea Ray Yvonne Hawks Norman H. Cuadra Caspar S. Whitner* Hispanic Outreach Frank Riggs Susan Kirby Michael A. Dailey Joseph A. Zdrilich Law Project Michael Schuman Robert Mack Jerry A. Daniels Andrea Coleman* Baker Donalson Shonterria Martin Dougles R. Daum EVICTION DEFENSE Will L. Miller* Collaborative Pandora E. Palmer Brook A. Davidson PROJECT Unemployment Project David Adams Shalamar J. Parham Amy R. Duncan Alan Bakowski John Allen* Mark Carlson Elizabeth M. Pool Regina I. Edwards Walter Bibbins Laurene Cullivier Carl Davis Darrell B. Reynolds Marion E. Ellington Jr. Ailis Burpee Gordon David* Emily Early Arlene Sanders William E. Fields Terry Carroll Eve Erdogan Jennifer Ervin Jewell Scott Douglas N. Fox Alex Drummond Drew Lunt Katy Furr Keisha A. Steed Kathryn Raylor Franklin Ben Easterlin James Matthew* John Greene William H. Turner Laura J. Friedman Jason Edgecombe* AnnaLise Peters Nedom Haley West William Nelle M. Funderburk Elizabeth Fox Laurice Rutledge Wendy Hart Betty Williams-Kirby Tiana Garner Larry Gramlich Tara Stuart* John Hinton Fred Zimmerman Kedra M. Gotel Heather Havette Matthew Weiss Charles Huddleston Lance W. Gowens Heather Howard Matthew Wilson Jessica Ryan COBB JUSTICE David B. Groff Katy Lucas* Cancer Legal Initiative Kevin Stine FOUNDATION B. Thassanee Sam Matchett Georgia Association of Ashley Thompson James Hogan Gutter-Parker* Cory Menees Black Women Attorneys Altanta Bar Section Jennifer Johnson Charlie Mark Hamby Bob Neufield Estate Planning Women in the Profession Dennis O’Brien Raluca L. Hanea Jeff Sand* Valentia Alleyne Mary Anthony Merchant Tammy Caldwell Bruce R Hawkins Jr.* Natalie Sacha Jessica Cooke Scarborough Jessica Jay Wood Ryan Swift John H. Hollingsworth Jr. Sara Statz* Denise Davis* Cheryl Legare Brian Green Tracey D. Jean-Charles David Tetrick Pavielle Dortch Rebecca McFadyen Laura Anderson Charles David Joyner Trinity Townsend Gary Flack Adriana Midence John Gunn N. Wallace Kelleman* Andrew Weiner Paula Frederick Heather Miller Scott Halperin Vanessa I. Kosky Jennifer Wheeler Alexandra Gaines Beth Mullican Ken Crosson Kelsea Lila Sonne Laun* Johanna Wise Raanon Gal Melissa Reading Lesia Miller Schnur Matthew A. Lettich Treaves Williams* Tiana Garner Shannon Shipley-Hinson Alexandra Manning B. Adam Lilly Mary Williamson* Kasmyene Hayes Liz Skola Adam Sutton Claire D. Lim Randy Hughes Susanne Tarter Luke Lantta David S. Lipscomb GRANDPARENT HEALTH LAW PROJECT Matthew Bennett Crystal Cook Christina Forte RELATIVE CAREGIVER F. Xavier Balderas John Benson Edwin Cook Rachel Fox PROJECT Martha Bucaram Jeremy Berry William Cooper Kenneth Franklin* Renae Bailey Wainwright Craig Carmean* Suzanne Bertolett Joey Costyn Michael Frankson Stephanie Banks Jim Ewing Robin Besaw Matthew T. Covell Delia Frazier Michael Bertelson Christopher Freeman Elissa Blache Clark Cunningham Michael Freed Paul Black Kwende Jones Julia Black* Joshua Curry Anna Fretwell Kimberly Blackwell Ashby Kent* Paul Black* Robert Curylo David Frist* Vanessa Blake Ed Kirkland Kimberly Bourroughs Lula Dawit Eugene Fuller Kellie Brendie Bill McKenzie Rebeccah Bower Jeffifer Deal* Jeff Fuller Christina Campbell Jennifer Malinovsky* Holen Brady Tom DeFreytas Tammi Fuller Tuneen Chisolm Patrick Norris Emily Brannen* Clara DeLay Mary Galardi Wendy Choi Tara Ramansthan Christopher Brannon Joseph Delgado Tiana Garner Nichole Chollet Katie Salinas Acree* Mike Breslin Scott D. Delius Adam R. Gaslowitz Kelly Christian Renee Smith Katharine Brimmer* Margaret DeLockery Bruce H. Gaynes* Debbie Connelly Monika Vyas Karl Broder Carmen Dergan Sarah Geraghty Clara DeLay Randy Hughes* Letoyia Charmain Brooks Stephen F. Dermer David Giannantonio Kristin Doyle Dawn Jones John Patterson Anuj Desai John Gibson Christopher Durkee Amber Pride Brumbaugh Tom DeSimone Derek Gilliam James Ewing Howard Rothbloom Damian Brychcy Brain Deutsch David Gluck Walter Gabriel Courtney Bumpers Stephen Devereaux James A. Gober* Alicia Grahn Jones ATLANTA VOLUNTEER Jacqueline Bunn Tim Dewberry* Katrenia Goode Jennifer Greenfield LAWYERS FOUNDATION Michael Burnett Andrew R. Diamond* Edwin Gorsuch Larlise Grier Valerie G. Adams Torris Butterfield Courtney Dixon Milton Green Sandra Hardee Julie Adkins Ian Byrnside Nick Djuric Michael Greenberg Hoganne Harrison-Walton Jennifer Adler Jessica Cabral Odom Nadine Dominique Rich Greenstein Heather Heindel Valentia Alleyne Roxanne Cahn Alexander de Souza Ginny Grigsby Charles Henn Danielle Allison Harry Camp* Drummond Alison Grounds Brenda Holmes Ross Andre Elizabeth Campbell C. Angelia Duncan Joshua Gunnemann Eugene E. J. Joswick Christopher Armor Steve Carley John Patton Dycus Kaleema Haidera Al-Nur Monica Kinene Brandon Arnold* Misty Carlson Ben Easterlin Ashley Halfman Russell Korn Tyler Arnold Stacey Carroll Kathryn Ederle Walter Hamberg* Daniel Murdock Laura Ashby Jeffery Cavender Jason Edgecombe John Harbin Sherry Neal Heather Byrd Asher Shiriki Cavitt Regina Edwards Aliste Harris Mindy Pillow Dana Ashford Steven N. Cayton* Nicole Elder Samantha Hayes Nancy Pridgen Sarah Austin* Henry Chalmers Erin Elliot Andrew Head Hilary Rightler Sarah Babcock* Alexandra Chanin Daniel Englander Preston Heard David Robinson Alan Bakowski* Katherin Chapman* Brianne Erwin Christopher Henderson Dean Russell David Ballard Julie Childs Yoon Jae Ettinger Andre Hendrick Debbie Segal Shama Barday Sean D. Christy* Elizabeth Anne Faist* Phillip Henry Jacklyn Shanks Shakara Barnes Anthony Cianciotti Peter Farley Joseph Hession Lisa Skinner Christy Barnes Emory Clark Richard Farnsworth* Wesley Kent Hill Lauren Sturisky Justin Barry Matthew Clarke Jaliya Faulkner Megan Hinkle Lynnae Thandiwe Eric Barton* Morgan Clemons Tamara Feliciano Adam Hoipkemier James Trigg Kathleen Barton James Clifton George Ference Gwen Holland Ester Vayman Sarah Basiliere Mark Cohen Brian Fielden William James Holley Laura Whitman Randy Bassett Caryl Cohen Michael Fischer Andrew Hopkins Terriea Williams Michael Bauer Kent William Collier Lowell Fitts Matt Howell Kathleen Womack Nancy Baughan Katrenia Collins Sabrina Fitze Robert Howell Millie Baumbusch Jennifer Collins John Fleming Jennifer Hubbard Lauren Bellamy Noshay Collins Cancelo Jonathon A. Fligg Lorie Hutchins Jonathan Benator Elizabeth Compa Seth Ford Amy Jenson Mark Johanson Niki McDonald Michael Rafi* Jesse Steele William Wildman Gwen Johnson Montoya McGee Robbin S. Rahman Alisa Steinberg Connell Chad Williams Waizeru Johnson Carroll Wade McGuffey Kristen Rajagopal Courtney Stewart Reggie Williamson Yoshana Jones Tiffany McKenzie Raman Rajagopal Laura Stipanovich Yvonne Williams-Wass Candis Jones Latanya McPherson Michelle Rappoport Matt Stoddard Angela Wilson Rohan Kale Laurin M. McSwain Elizabeth Raskin Deidre Stokes Kirkland* Koox Withers Uttara Kale Justin Meeks Brenda Raspberry Kevin Strachan Sandi Witherspoon Tate Keenan Leila Mahmoodi Mehrizi Kimberli Reagin Sherilyn Streicker Diane Wizig Jeffrey Kelley Gabriel Mendel Cameil Reddick Jordan Stringer Bobby Woo Priti Khanna Katie Merrell Brittany Reese Andrew Sumner Kristen Woodrum Daniel Kingsley* Thomas Mew IV Elna Lee Reese Brain J. Sutherland Kandice Woods Tal Kitron* Robert Meyring Lindsay Reese* Elizabeth Swartz Dan Wright David Kleber Benjamin Middendorf Jason Paul Reeves Eric Swartz Christopher Yarbrough Katie Klimko* Jared Miller Thomas E. Reilly Karli Ayana Swift Sarah Zampell Ami Manik Koldhekar Kevin Mitchell Jody Rhodes Nilufar Tabari* Haley Elizabeth Zapal Esha Krishnaswamy Lynita Mitchell-Blackwell Steven Richman James Angel Tabb Anne Kuhns Matthew Montaigne Nicole Roberts Isaac Tekie* John Lamberski Daniel Murdock John Robinson Mark Thacker Reggie Lampkin Austen Na April Robinson John P. Thielman Tia Lance Johnquel Neal Jonathan Ross Elizabeth Thomas* Allen Lang Charles Newton Janis L. Rosser* Ashley Thompson Scott Lange Kerry Nicholson* Jessica Sabbath Maria Todorova John Larkins III Chris Nikitas Douglas Salyers Trinity Townsend Julia Latimer Jeffrey J. Nix Bruce Sarkisian Franklin Trapp* Kim Lsayton Patrick R. Norris Ben Sawyer William M. Traylor Sara LeClere* Stephanie Oginsky Kristen Scalzitti Trishanda L. Treadwell Tracey Ledbetter Dimeji Ogunsola Jacquelyn Schell Jonielle Turner Kathy Lehman Jackson Oliver Ellen Schiller Renata Turner Kurt Lentz Tia Osterbur Emory Schwall Julie Upshaw Jonathan Letzring Warren Ott John Seay* Jeanette van der Linden Angela Levin Suzanne Palms Jared Seff Mark S. VanderBrook Stacey Lewis Shalamar Parham Debra A. Segal Elizabeth Vaughn Kevin Linder* Viraj Parmar* Kristy Seidenberg* Melanie Velez Jarrod Loadholt Matt Parrish Raj Shah Frank W. Virgin Jade A. Logan Natasha Patel Neeli Shah Srikant Viswanadham Monica Logan Puja Patel Lidsey Siegel Laura Vogel James Johnston Long Danielle Paul Matthew Simmons James Henry Walker III Jennifer Lowndes Dara Paulsen* Seans D. Simmons Robert Walling Elizabeth Loyd Andrea Pearson Sidney Simms Bryasn Ward Daniel Ludlam Matthew Pechous Aisha Slade Meka Ward Alfred Lurey Ashley Pecora Clay Smith Keri P. Ware Jennifer Lyle Lee Peifer David Smith Jane Warring* David Mackenzie Adria Perez Ian Smith Mark David Wasserman Tyler Mann Jamie Perez Robbie Smith Sarah Watchko James Martin* Nick Phillips Rylan Smith Brain Watt Joshua Mayes Tracey Pickett Shuman Shorn* Leigh Ann Webster Thomas J. Mazziotti Megan Poitevint* Maria Souder Joshua Weeks Lasuren McAuley Carlos Polanco Avi Stadler Andrew Weiner Kacy McCaffrey Sonny Poloche April Stancliff* Matt Weiss Chanda J. McClure Evan Pontz William H. Stanhope* Elizabeth Whipple Angela McCord Tiffanie Purvis Tamara Starks Alan White Petrina McDaniel LaChandra Pye Daiquiri Steele Christopher Wiech …“and justice for all”

GLSP Gave Mr. Jones a Life Off the Streets Mr. Joe Jones had worked for a large bakery for 22 years when his health problems – bi-polar disorder, diabetes, depression, and thyroid problems caused by a reaction to medication – became so severe they made it difficult for him to work. He got behind on his rent and had to leave his apartment. He was living in his car and was out of most of his medications when he came to Georgia Legal Services Program (GLSP) for help. GLSP attorney Cole Thaler helped Mr. Jones complete all the paperwork to qualify for his employer’s disability pension, untangle the red tape tying up his food stamp application, and locate resources to help pay for his medications. Thaler referred Mr. Jones to local housing resources for a decent place to live. Only with GLSP’s help was Mr. Jones able to work through all of it and finda home, some income, and better health. “And Justice for All” 2013 State Bar Campaign for the Georgia Legal Services Program, Inc. Supporting GLSP is not about charity. Supporting GLSP is about justice for all.

State Bar of Georgia Georgia Legal Services Program® ®

Scan the QR code with your smart phone, or go to www.glsp.org (click on Donate Now). Thank you for your generosity and support.

The Georgia Legal Services Program (GLSP) is a 501(c)(3) nonprofit law firm. Gifts to GLSP are tax-deductible to the fullest extent allowed by law. (The client story is used with permission. The photograph and name do not necessarily represent the actual client.)

GLSP May 2013 Bar Journal Ad_Final.indd 1 4/25/13 12:55 PM Member Benefits Fastcase’s Newest Addition: Bad Law Bot by Sheila Baldwin

n May 1, Fastcase announced a new or KeyCite, with the addition of Bad Law Bot, Authority Check becomes more valuable by pointing out negative addition to their set of visually oriented history associated with a case. When a case in the search results is found to be negative the bot identifies it as bad tools that make online research smarter law by tagging the case with a red flag. The flag will also O display in the document view when you view the full and faster. Bad Law Bot, yes, it’s really called Bad Law case. If you run Authority Check, the report will identify the case in which the negative treatment appeared. Bot, is an enhancement to the Authority Check feature On a side note, Bad Law Bot comes complete with an avatar; I assume the only cartoon character associated to show you where courts have noted that a case has with legal research after a quick google search produced this correction, “cartoon mascot legal research been treated negatively (i.e., reversed or overruled on software.” Bot—can we just call him Bot?—brings to mind the mascot of the 1996 Atlanta Olympics, any grounds). The Bluebook requires that courts indi- Whatisit, better known as Izzy. Although the name sounds a bit nerdy, the new feature will be welcome. cate negative history of cases cited within opinions. Doing a practice search with Georgia as my jurisdiction and using the terms, (extension w/3 lease) and invalid This new feature uses algorithms to find negative cita- w/5 terms, six cases result, one of which is marked with a red flag denoting negative treatment (see fig. 1). When tion history. Bad Law Bot then flags those cases so that the case with negative history is opened to document view, the notice of negative treatment is once again seen you can easily spot those that have negative citation at the top of the page marked with a red flag (see fig. 2). Finally, when the case is opened in Authority Check, all history and provides you with the links to those cases. cases with negative history in the list of citing cases are seen at the top of the list and highlighted in a red back- Fastcase differentiates itself from other search ground with the warning “Negative treatment indicated engines by designing innovative features such as the in this case” (see fig. 3). Interactive Timeline, Authority Check and now Bad Keep in mind that Fastcase searches cases by com- Law Bot to visually display results and highlight puter analytics and not by using editors to analyze important cases quickly and easily. cases. A red flag means that there’s likely negative Fastcase’s Interactive Timeline view shows all of the treatment, since a court has said as much by their use search results on a single map, illustrating how the results of a negative citation, but no red flag does not neces- occur over time, how relevant each case is based on your sarily mean that a case is still good law. search terms and how many times each case has been cited Fastcase continues to find ways to improve their ser- providing more information than any list of search results. vice for the members of the State Bar of Georgia. Please Fastcase’s citator function, Authority Check, dis- call or contact me at [email protected] or 404-526-1136 plays all later citing cases visually in the form of a with any questions or for help with your research. report which shows which jurisdictions have cited the case, the number of times it’s been cited and when it Sheila Baldwin is the member benefits was last cited. This is a great research tool for finding coordinator of the State Bar of Georgia related precedents, or helping to determine the con- and can be reached at [email protected]. tinuing value of a case as a precedent. Although Fastcase does not hold Authority Check out as a complete replacement for services such as Shepard’s

62 Georgia Bar Journal 1

Fastcase training classes are offered four times a month at the State Bar of Georgia in Atlanta for Bar members and their staff. Training is available at other locations and in various formats and will be listed on the calendar at www.gabar.org. Please call 404-526-8618 to request onsite classes for local and specialty bar associations. Writing Matters Sometimes You Need to Blame Zombies by David Hricik and Karen J. Sneddon

assive voice. These two words send shiv-

ers down the spines of writers. This issue P of “Writing Matters” returns to the topic of passive voice and draws inspiration from one of the new darlings of grammar instruction: zombies.

After some simple tricks you can use to detect passive voice—and normally then edit to eliminate it— we’ll share some pointers as to when passive voice may be your best choice. Usually, it’s when you need to let blame fall on zombies, and not your client or yourself. “The deadline was not met” is a classic example of passive voice. The object of the sentence (the deadline) has been presented as the subject of the sentence to create use of the passive voice. There are benefits to hiding the subject of a sentence, especially if the truth was, “I did not meet the deadline.” Writers generally believe active voice produces stronger and clearer sentence constructions, but passive voice has its place. Tricks and Tips to Spot Passive Voice Sometimes passive voice can wait in ambush, hard Even if Mr. Grimes should remain in hiding and so to spot. You can spot some forms of passive voice the passive voice is the best choice, the sentence could through an easy trick using just the “find” command be made shorter with, “Then it was determined to in word processing programs. Other forms of passive fire the supervisor on Christmas Eve.” (Note that the voice are harder to spot, but they can be found through sentence still has other problems: foremost, was the using a little bit of brains, so to speak. decision to fire the supervisor made on Christmas Eve, The trick is to use “find” in your word proces- or was the supervisor’s firing effective as of Christmas sor program to search for words ending in “ion.” Eve? But we’ll stay focused on passive writing for now.) Usually, an “ion” word is a nominalization, meaning A second tip requires some real brains. To dig up that the word is a noun created from a verb or adjec- all passive structures, you could search for forms of tive. Thus, a simple scan can locate patterns that the verb to be (e.g., am, is, are, was, were, be, been). often accompany passive voice, and at the same time Usually that will be asking too much of anyone. An help eliminate wordiness. alternative is to focus on these constructions: there is, For example, searching for “ion” would find this it is, this is, there was, it was and this was. These bland sentence: “Then the determination was made to fire the phrases attract wordiness and delayed or hidden sub- supervisor on Christmas Eve.” This sentence is passive: jects—in other words, the problems of passive voice who decided to fire the supervisor? In the active voice, constructions. “There is no doubt that ‘Night of the it would be, “Mr. Grimes decided to fire the supervi- Living Dead’ is the best zombie movie of all time.” sor.” The use of “ion” is a tell that the sentence is pas- This sentence could be re-animated to the following: sive. Should it be active? Is Mr. Grimes being hidden “‘Night of the Living Dead’ remains one of the best for a reason? zombie movies of all time.”

64 Georgia Bar Journal A third trick to find passive In the following examples, see if you can shorten them even voice is more fun: after reading assume that there is no dispute while leaving them in passive voice. the sentence, ask whether you can over who did the act. Nonetheless, insert “by zombies” into the sen- think about the circumstances— n It was the discussion of his tence to identify who undertook and it is the circumstances that replacement that followed the action. So, for example: “Then dictate what is most effective, not the determination to fire the the determination was made by some rule—in which the passive supervisor. zombies to fire the supervisor on voice would be the better choice: n The exploration of whether to Christmas Eve.” If you can blame fire the supervisor commenced. zombies, it is a dead giveaway that n “Mistakes were made,” com- n The duplication of the copy- you are using passive voice. pared to, “I made mistakes.” righted article occurred. n The criminal complaint made Sometimes You Want n “The instructions were poor,” mention of him. to Let the Reader compared to, “Hershel instruct- n She was placed under sedation. ed us poorly.” n There was a violation of Blame the Zombies required procedures. Sometimes deliberate use of pas- n “The car window was broken,” sive voice is the best choice in compared to, “Maggie broke David Hricik is writing, especially in legal writ- the car window.” currently on leave from ing. It might be best to leave the Mercer University reader wondering who it was who Our point is that no bright School of Law, serving was so inattentive to have missed line rule requires active voice. as law clerk to Chief the deadline, or so callous to have Sometimes you need to blame zom- Judge Randall R. Rader fired the supervisor on Christmas bies, or at least let the reader blame of the U.S. Court of Appeals for Eve. Sometimes it is best to let the them. But what a writer must do is reader blame zombies! know when to use passive voice, the Federal Circuit during 2012-13. Examples of when passive and to do that, a writer must be able He will return to Mercer in 2013. voice is better abound. Whenever to spot it. The legal writing program at you do not want an actor to take Mercer University continues to be responsibility for an action, let Some Problems for You recognized as one of the nation’s the reader be able to blame the Here are some simple examples top legal writing programs. zombies. This can happen when for you to convert to the active voice. your client (or you) made a mis- In doing so, think about when cir- Karen J. Sneddon is an take or committed a wrongful cumstances might be such that you associate professor of act. Sometimes it is best to write, would want to allow the reader to law at Mercer University “The deadline was missed,” rath- blame the zombies, and not you or School of Law. er than “I missed the deadline” or your client. In addition to rewriting “The firm missed the deadline.” these sentences in the active voice,

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June 2013 65 Professionalism Page

Access to Justice: Is the Right to Counsel Still “An Obvious Truth”?

by Claudia S. Saari

his year we celebrate the 50th anniversary the few with established indigent defense delivery systems, now has a public defender office staffed with dedi- of Gideon v. Wainwright,1 the case in which cated criminal defense attorneys and support staff. The system also provides statewide and regional training, the U.S. Supreme Court unanimously held additional resources to conduct effective defenses and T conflict counsel for felony, juvenile and appellate cases. that states have the constitutional obligation to pro- Approximately 80 percent of all persons charged with crimes are indigent and require appointed coun- vide counsel to indigent defendants, reaffirming the sel. The structures and policies of Georgia’s indigent defense system make possible the most important com- principle that justice should never be determined by a ponent of effective indigent defense: representation by attorneys who are dedicated to criminal defense as a person’s wealth. In 1961, Clarence Gideon was charged career and a calling. Every day, in every court in this state, attorneys in public defender offices are fighting with the felony offense of breaking and entering. After to ensure quality representation for their clients and to fulfill the promise of Gideon. The need for representa- being denied his request for an attorney to represent tion is great and we, the public defenders, understand and embrace our professional responsibility of ensur- him at trial, he was convicted and sentenced to prison. ing fairness in the justice system. Public defender offices are equal partners with the While serving his sentence, he hand-wrote an appeal courts, prosecutors and law enforcement in managing and improving the criminal justice system. As Justice to the U.S. Supreme Court, claiming that his conviction Black wrote in the Gideon opinion, “lawyers in criminal cases are necessities, not luxuries.” Thus, establishment violated his rights under the 14th Amendment. of a statewide defender system serves all aspects of justice in Georgia. Efficient and effective criminal justice In reversing Gideon’s conviction, Justice Hugo Black systems require that all parties—the prosecutors, the wrote that “. . . in our adversary system of criminal courts, the sheriff’s departments, the police departments justice, any person haled into court, who is too poor to and the public defender’s offices—have the necessary hire a lawyer, cannot be assured a fair trial unless coun- resources to fulfill their roles separately from and in sel is provided to him. This seems to us to be an obvi- concert with one another. If any one of these offices can- ous truth.” Gideon was re-tried and with the assistance not effectively function because of a lack of support, the of an attorney he was acquitted of all charges. entire system grinds slowly to a halt. Gideon set into motion changes in indigent defense Georgia’s indigent defense system has many sup- that continue today. One of the more recent and impor- porters, including the Chief Justice’s Commission on tant developments for Georgia was the creation of Professionalism (the Commission.) One aspect of the a statewide indigent defense system in 2005. By this Commission’s mission is to ensure access to justice in action, Georgia made great progress in fulfilling the both civil and criminal courts. The Commission has promise of Gideon. Prior to 2005, not every judicial provided the Georgia Legal Services Program with a circuit had an established public defender office. The grant to establish the Gateway to Justice, an online tri- statewide system ensures that every circuit, except for age and intake system that allows low-income house-

66 Georgia Bar Journal Image from www.thedocumentarygroup.com holds to apply for legal help and learn the role of the public defend- The 50th anniversary of Gideon is information, making civil attorneys er, ethics, professionalism, client- a reminder that the law is a service more accessible to people through centered representation, case man- profession. I am honored to have the use of Internet-based services. agement and trial skills. We are served as a public defender for In addition, the Commission sup- also fortunate to have based in almost 26 years. In my daily work, I ports Atlanta Legal Aid Society’s Georgia Gideon’s Promise (former- have the opportunity to give life to Georgia Senior Legal Hotline, ly The Southern Public Training the guiding principle of Gideon: no serving senior citizens through- Center), an organization dedicated matter how rich or poor, a person is out Georgia by offering brief legal to inspiring, teaching and support- entitled to quality legal representa- assistance over the phone. ing public defenders and leaders in tion when charged with a crime. All The Commission is consider- public defender offices and raising Georgians can be proud to know ing other ways to promote access the standard of representation in that across the state, there are attor- to justice, including a referral courthouses across the South. neys, administrative staff, investi- program for persons of modest With continued and expanding gators and social workers in public means: those who do not quali- support for indigent defense, the defender offices who are dedicated fy for appointed counsel, cannot future for access to justice is prom- to providing excellent, ethical and afford a private attorney and who ising. We are better off today, professional representation to those need affordable counsel, and mak- although more can be done to who face a criminal charge. That is ing a request to the Supreme Court honor the legacy of Gideon. There an “obvious truth.” to change the rules that permit are challenges inherent with high law students to practice under caseloads. Staffing levels in public Claudia S. Saari is the supervision. Expansion of the stu- defender offices across the state interim circuit public dent practice rules would provide are extremely lean and additional defender of the Stone additional opportunities for law personnel are needed. To ensure Mountain Judicial students to be involved with pros- fairness and equity in the jus- Circuit in Decatur, and ecutor, public defender and legal tice system, there should be equal a member of the Chief aid offices. resources and pay parity with Justice’s Commission Another way the state works prosecutors. To attract and main- to support access to justice comes tain good attorneys, investigators, on Professionalism. through the State Bar’s Transition social workers and other staff who Into Law Practice Program. New are passionate about defending Endnote public defenders are required to the rights of the indigent, these 1. Gideon v. Wainwright, 372 U.S. attend a two-week program to issues need to be addressed. 335 (1963).

June 2013 67 In Memoriam

n Memoriam honors those members of the State Bar of Georgia who have passed away. As we reflect upon the memory of these members, we are mindful of the contributions they I made to the Bar. Each generation of lawyers is indebted to the one that precedes it. Each of us is the recipient of the benefits of the learning, dedication, zeal and standard of professional responsibility that those who have gone before us have contributed to the practice of law. We are saddened that they are no longer in our midst, but privileged to have known them and to have shared their friendship over the years.

Susan J. Aramony John William Kilgo E. Randolph Parrish Fort Lauderdale, Fla. Tallapoosa, Ga. Atlanta, Ga. Emory University (1981) University of Georgia School University of Georgia School Admitted 1981 of Law (1976) of Law (1968) Died April 2013 Admitted 1976 Admitted 1968 Died February 2013 Died April 2013 Robert Leon Burrell Decatur, Ala. Whitfield M. Landrum Jr. Donald F. Ruzicka Samford University Cumberland Evans, Ga. Atlanta, Ga. School of Law (1977) Augusta Law School Atlanta’s John Marshall Law Admitted 1977 Admitted 1951 School (1975) Died March 2013 Died March 2013 Admitted 1975 Died March 2013 Orville L. Chapin Jack N. Lincoln Gulf Breeze, Fla. Atlanta, Ga. Jesse W. Shaddix Woodrow Wilson College of Law Atlanta’s John Marshall Law Tyrone, Ga. (1977) School (1969) Atlanta Law School (1966) Admitted 1977 Admitted 1970 Admitted 1976 Died February 2013 Died April 2013 Died April 2013

Thomas Scott Fisher John L. Merritt Darrell P. Smithwick Decatur, Ga. Cumming, Ga. Lawrenceville, Ga. University of Georgia School Mercer University Walter F. Woodrow Wilson College of Law of Law (1980) George School of Law (1971) (1977) Admitted 1980 Admitted 1972 Admitted 1977 Died February 2013 Died March 2013 Died February 2013

Dean C. Houk Jr. Gary Michael Newberry John W. Stokes Jr. Atlanta, Ga. Savannah, Ga. Lawrenceville, Ga. University of Florida Levin Mercer University Walter F. Emory University School of Law College of Law (1962) George School of Law (1985) Admitted 1949 Admitted 1967 Admitted 1986 Died February 2013 Died May 2013 Died April 2013 L. Jack Swertfeger Jr. Fred E. Johnston Jr. Kenneth O. Nix Atlanta, Ga. Lilburn, Ga. Smyrna, Ga. Emory University School of Law Atlanta Law School (1976) Emory University School of Law (1953) Admitted 1976 (1964) Admitted 1954 Died April 2013 Admitted 1965 Died April 2013 Died October 2012

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June 2013 69 Book Review

Declining Prospects by Michael H. Trotter, 258 pages, CreateSpace Independent Publishing Platform reviewed by Donald P. Boyle Jr.

hange in the practice of law since 1962

and change in the future are the subject of C Declining Prospects by Michael H. Trotter, a business attorney and veteran of several of Atlanta’s best known law firms.

Trotter expects significant changes in law firms in the next 20 years, though he admits that he has been forecasting such changes for some time, having authored an earlier book about the legal profession, Profit and the Practice of Law, in 1997. The focus of the book is on what Trotter calls “major business practice firms,” i.e., those law firms representing leading U.S. businesses. The Transformation of the Major Business Practice Law Firms in the U.S. The Transformation 1950 to 1990 In the 1950s, major law firms were generally much smaller than today. A chart at the beginning of the book shows that 19 of the best known firms have greatly increased in size, most at least twenty-fold. There were few in-house legal departments, since corporations’ general counsel were almost always at an outside law firm. Liability concerns kept the size ethical discipline. Hourly rates led to greater focus on of law firms low because you had to know who your numbers in law firm budgeting and management. partners were, before liability insurance was wide- In Trotter’s view, inflation during this period made spread. For the same reason, there was little lateral hourly rate increases seem “normal.” When infla- movement of lawyers. tion eased after the 1970s, the annual rate increases Change began with a shortage of lawyers resulting remained. Profitability became a matter for public from the Great Depression and World War II. During discussion when the American Lawyer in 1986 began the 1950s and 1960s, hourly rates came into favor publishing lists of profit per partner (PPP). The focus through client pressure to see what was behind their on profitability led to greater leverage (associate-to- lawyers’ bills. With the increased use of hourly billing, partner ratio). This had the effect of increasing client bar associations published minimum fee schedules— contact for younger lawyers, who could then move on lawyers were expected to bill a certain rate or face and take clients with them because they often had a

70 Georgia Bar Journal better relationship than the senior complain that their profession has correlation shown between PPP and lawyers did. This period also saw become a business. Most lawyers leverage. He concludes that firm the widespread use of nonlawyer have little time left for activities strategy is far more important than assistants as timekeepers, adding outside of work or for pro bono. size or leverage. “Greater size and to law firm profits. Further, with increased specializa- leverage do not guarantee financial tion, lawyers often find less satis- success, and can undermine much The Transformation faction in the legal work itself. that makes the practice of law attrac- Continued 1990-2010 In Trotter’s view, many of the tive in the first place,” Trotter writes. After 1990, the average PPP gen- factors contributing to dissatisfac- Surveys have found that most erally increased over the next 15 tion are beyond law firms’ control; associates would trade a reduction years. This period saw a new phe- but size and leverage are within in compensation for improvement nomenon—the creation of “classes” their control. The stress on profits in quality of life through lower of law firm partners such as noneq- (and resulting personal stress) has billable hours. Trotter believes uity partners and counsel. Lateral led to decreased loyalty of young- that hard work is not the same as movement increased further, result- er lawyers to the law firm and long hours, which can often lead ing in breakup and failure of some less investment of the law firm in to exhaustion and so is counter- firms. The reporting of PPP, which younger lawyers as a whole, who productive for clients. At the same often was based on the income of are seen as a commodity, except for time, he admits that it is hard to see equity partners alone, was mislead- the perceived rising stars. how existing big firms can make a ing as a result—if all classes of part- Concerns about liability from mis- change without sacrifice in com- ners were considered, PPP would takes by “rogue” lawyers, increased pensation by partners and associ- be significantly lower. time supervising support staff, and ates, or an increase in rates (and Trotter observes that the “finan- other issues make lawyers spend clients don’t seem willing to pay cialization” of the U.S. economy more time running a business than more for legal work). increased the need for special- they ever expected or wanted when ized legal work related to com- they decided to practice law. Trotter Inside Counsel’s Frustrations plex financial transactions and writes, “Simply put, a lot more time, with Outside Counsel instruments (e.g., collateralized effort and money is required to run Corporate counsel know how debt obligations and credit-default a ‘large’ firm than a ‘small’ one.” law firms operate, and this gives swaps). The total cost of legal ser- Adding to lawyers’ stress, increased them concern. Their biggest con- vices continued to grow. specialization makes lawyers more cern is cost—mostly from firms’ vulnerable to downturns in particu- use of younger associates, who Why Working Conditions lar areas of business. take longer to get to an answer, Have Declined which often is then filtered through The drive for greater profits and Can Working Conditions Be more senior lawyers, thus driving production had an inevitable effect Improved? up the bill further. on professional satisfaction. It has Using an AmLaw 200 chart, In-house counsel want to rely become common for lawyers to Trotter points out that there is no on lawyers they know and not

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June 2013 71 be referred to other lawyers, the best law graduates, though not specialized concerns into large, often in other offices, who are all can afford it. Few firms are multistate businesses. unknown personally to both the willing to sacrifice PPP in order to In a related development, cor- referring attorney and in-house address client dissatisfaction over porate counsel no longer want to counsel. Trotter believes that mid- high costs. pay for full detail on most matters; level partners often are the best The high compensation of part- “good enough,” in their view, often economic choice for the in-house ners disadvantages them against suffices. This has led to corporate lawyer, because the most senior their major competitors—corporate counsel doing more of the work lawyers cannot justify their higher law departments. Corporate coun- themselves, which they can do with billing rates. sel often got their start at major the help of electronic legal research law firms, and so have often acqui- and publications on all areas of the Five Developments esced in these high costs and inef- law (e.g., Practical Law Company Driving Change ficiencies because they think that subscription service and Legal it’s the way that things are done. Zoom) without leaving their office. Competition Now, however, corporate counsel Continuing legal education and More new lawyers are being have access to reports on what law firm marketing programs pumped out of law schools than firms are billing other clients for have allowed lawyers to benefit there is work for them to do. the same work. Corporate counsel from the ideas and even forms Clients have become more sophis- are being ordered by management from other lawyers. This has made ticated about the legal services that to cut costs. Only the major firms it easier for lawyers to become they purchase. Lawyers in other with the highest levels of expertise “expert” in a subject (and this states or foreign countries now will be able to continue the current includes corporate counsel). are able to compete where it was model, Trotter believes. In this area as in others under previously impossible or impracti- discussion in the book, the law cal. Highly qualified students con- The Rise of Corporate Counsel firms have become their own tinue to apply to law schools. The There were very few in-house worst enemy. In marketing them- long hours required for a success- lawyers in 1960. In the 1970s and selves through CLE and less for- ful legal practice tend to filter out 1980s, in-house legal staffs grew mal presentations to clients, they would-be lawyers who don’t want and became more specialized. enable corporate counsel to use that kind of life. Despite all this General counsel were almost all the information to do future work competition, Trotter says, clients outside lawyers in 1960; now, the themselves, without involving out- continue to pay a “higher than reverse is true. side counsel. High leverage in law necessary price for their outside By the 1990s, corporate legal firms, while good for the equity legal services.” departments were doing most of partners’ immediate bottom line, the companies’ legal work, except has further encouraged standard- Costs for the most specialized work and ization, as have lateral moves by Compensation increased in the litigation. Corporate lawyers now lawyers, who take knowledge and 1960s when firms outside New are looking for the lowest cost in best practices with them to the York City (such as Atlanta) began outside lawyers for most work next firm. recruiting at Harvard and other that is given to them, and the top law schools and had to com- highest skill in “bet the compa- Technology pete with New York firms for the ny” cases. Corporate legal depart- Trotter has been practicing long best students. If starting salaries ments are demanding the use of enough that he recalls the days in Atlanta had increased only with contract lawyers, non-lawyer per- when he could send a letter to a cli- inflation after 1960, the starting sonnel, and outsourcing to other ent and move on to attend to other salary would have been $26,500 countries. Fewer outside counsel matters for several days before his in 2010; actually, it was $145,000 sit on boards of companies than in client would get back to him. Now, at several of the major firms. the past, so that the relationship communications generally go by Compensation of the top senior between attorney and client has email, and the time until the client’s partners also increased over the become less aligned. response may be measured in min- period, but “only” to a multiple of utes. Clients increasingly demand seven times associate compensa- Commoditization quick answers and quick results tion; in 1960, it was 12.5-16.7 times Legal services have become through the use of technology. as much as associate pay. standardized. Through the wide- This can lead to ethical issues. All firms seem to be pursuing the spread adoption of uniform laws, Knowledge management systems same strategy—increasing associ- regional differences have been enable lawyers to reuse and adapt ate compensation in order to be greatly reduced. As a result, law work product in multiple cases, but perceived as top tier and to attract firms have changed from small, ethical rules prevent lawyers from

72 Georgia Bar Journal charging each client the full price questions whether law firms will venturing into alternative ways of as if the work had been done for invest the time to look at new ways practicing law, these NMFs and that client alone. This further cuts of doing business beyond the bill- virtual firms probably will never into the law firms’ profits, Trotter able hour. In his view, businesses replace the traditional firms. observes, but there is no way to want a one-stop service for their avoid it, because other firms are business and legal issues, and law The Future of Lawyers? using such systems, and clients firms will not be able to continue to The practice of law will con- demand it. resist this transformation. Trotter tinue to attract ambitious, intel- Trotter forecasts that the “com- believes that law firms and the ligent people, but the opportuni- puter associate” may not be too far bar need to look harder at solu- ties for high compensation will be away. It may soon be possible to tions. The balkanization of the bar lower than in the past. Pressure get legal answers (legal memos and into separate jurisdictions makes a from clients on fees and continued opinions, not just forms and case comprehensive solution difficult. improvements in technology will printouts) reliably from intelligent cut into profits if firms continue to database search. “New Model” Law Firms practice in the old ways. One way forward is using a Trotter believes that corporate Looking Toward the “new model” for law firms. New counsel hold the future for law Future Practice of Law Model firms (NMFs) are char- firms. He expects major business acterized generally by (1) lower practice firms to see further reduc- Lawyers Sick of the Practice leverage; (2) smaller size; (3) lower tions in profitability, and NMFs of Law overhead; (4) lower hourly rates to increase. Ultimately, law firms Much of this is not news to prac- and commitment to alternative fee are subject to the same economic ticing lawyers, and dissatisfaction arrangements; and (5) a less hierar- pressures as other concerns, and with law practice is on the increase. chical structure than the traditional our identity as a profession cannot The American Bar Association held major business practice firms. change the laws of economics. its first “Raise the Bar” Colloquium Trotter sees greater opportuni- In an epilogue, Trotter advocates in 2005, where proposals included ties for NMFs as traditional big that banks and law firms require (1) changing compensation struc- firms “move upmarket” to more personal guarantees by all partners tures to include pro bono, prac- profitable areas of practice in on leases and debts, at least in pro- tice development, mentoring and response to client pressures. NMFs portion to each partner’s economic training; (2) mandatory CLE on can be more responsive to client participation in the firm, as a way work-life balance; and (3) giving demands because of fewer fixed of preventing further dissolution of credit for efficient results. Trotter, costs, less overhead, and a will- firms due to partners’ moving to who describes himself as one of ingness to depart from traditional greener pastures. He admits, howev- the “pessimists” at the colloquium, ways of practicing law. er, that it is doubtful that many part- recalls that corporate counsel were NMFs face the obstacle that they ners would agree to these measures. reluctant to get involved in sug- still have to convince many corpo- Trotter also predicts that some gesting how firms should address rate law departments that they can traditional firms will survive by work-life balance. In fact, corpo- do the work at the same skill levels operating with one class of part- rate counsel had further bad news as the major firms. Corporate law ner; no lateral hiring; emphasiz- for their outside lawyers—greater departments are using law firm ing quality service rather than vol- commoditization is likely to lead “alliances” as a screening method ume; and staying at a small size— to further downward pressure on before assigning work to NMFs. in other words, operating like the rates and even selection of law Other alternatives to traditional few elite firms that existed in firms by procurement departments big firms include: (1) solo prac- 1960. Trotter does not believe that rather than legal departments. titioners, often “refugees” from many firms will be able to make big firms, who can offer excel- this transformation. Turning the Clock Back? lent service to corporate clients Trotter describes the literal deci- through the use of technology; and Donald P. Boyle Jr., a mation of law firms in the recent (2) “virtual” law firms, which use member of the recession, resulting in unemploy- technology to band together with- Georgia Bar Journal ment for many recent law graduates out the need for a common office Editorial Board and and reduction in starting salaries space. NMFs and other alternative past Editor-in-Chief, is for those who are lucky enough to ways of practicing are in a “sym- a litigator at Taylor find jobs. Partners have been “de- biotic relationship” with major English Duma LLP. He posts equitized” or laid off. He predicts business practice firms. Because a “bruising battle” among major young lawyers have to get training occasional reviews and essays at law firms to stay in the “elite” and in sophisticated legal work before georgiarambler.wordpress.com.

June 2013 73 CLE Calendar

June-August JUN 6 ICLE JUL 11-13 ICLE International Business Crimes: Fiduciary Law Institute Foreign Corrupt Practice Act St. Simons Island, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 12 CLE 6 CLE JUL 26-27 ICLE JUN 7 ICLE Environmental Law Summer Seminar Complexities of Article 9 Simplified Amelia Island, Fla. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 8 CLE 6 CLE JUL 31-AUG 1 ICLE JUN 27 ICLE Real Property Law Institute (Video Replay) Internet Legal Research (Rebroadcast) Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 12 CLE 6 CLE AUG 9 ICLE JUN 27-30 Gary Christy Memorial Trial Skills Clinic Arbitration Institute Athens, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 24 CLE 6 CLE

JUN 27 ICLE Earn up to 6 CLE credits for Elder Law (Rebroadcast) authoring legal articles and Atlanta, Savannah and Tifton, Ga. See www.iclega.org for location having them published. 6 CLE

JUN 28 ICLE Trial Advocacy (Rebroadcast) Atlanta, Ga. See www.iclega.org for location 6 CLE

JUN 28 ICLE Professionalism, Ethics & Malpractice (Rebroadcast) Submit articles to: Atlanta, Savannah and Tifton, Ga. Bridgette Eckerson See www.iclega.org for location Georgia Bar Journal 3 CLE 104 Marietta St. NW, Suite 100 Atlanta, GA 30303 JUN 28-29 Southeastern Admiralty Law Institute Contact [email protected] Savannah, Ga. for more information or visit the Bar’s website, See www.iclega.org for location www.gabar.org. 9 CLE

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.

74 Georgia Bar Journal CLE Calendar

AUG 15 ICLE AUG 23 ICLE Solo and Small Firm School and College Law Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

AUG 20 ICLE AUG 23 ICLE Group Mentoring Contract Litigation Atlanta, Savannah and Tifton, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 6 CLE

AUG 23 ICLE AUG 30-31 ICLE Nuts & Bolts of Family Law Urgent Legal Matters Savannah, Ga. St. Simons Island, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE 12 CLE

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June 2013 75 Notices

Formal Advisory Opinion Issued Pursuant to Rule 4-403

STATE BAR OF GEORGIA FAO 10-1 was published in the June 2010 issue of the FORMAL ADVISORY OPINION NO. 10-1 Georgia Bar Journal and was filed in this Court on June Approved and Issued On April 15, 2013 15, 2010. On July 5, 2010, the GPDSC filed a petition Pursuant to Bar Rule 4-403 for discretionary review which this Court granted on By Order Of The Supreme Court of Georgia January 18, 2011. This Court posed the following ques- With Comments tion to the parties for briefing: Supreme Court Docket No. S10U1679 May lawyers employed in the circuit public defend- The second publication of this opinion appeared in er office in the same judicial circuit represent co- the June 2010 issue of the Georgia Bar Journal, which defendants when a single lawyer would have an was mailed to the members of the State Bar of Georgia impermissible conflict of interest in doing so? on or about June 10, 2010. The opinion was filed with the Supreme Court of Georgia on June 15, 2010. On The Court heard oral argument on January 10, 2012. April 15, 2013, the Supreme Court of Georgia issued an For reasons set forth below, we answer the question in Order approving Formal Advisory Opinion No. 10-1. the negative and hereby approve FAO 10-1 pursuant to Because of the extensive discussion contained in the State Bar Rule 4-403(d). Order, the full text of the Order has been made part of the opinion. Following is the full text of the opinion 1. At the heart of FAO 10-1 is the constitutional right issued by the Supreme Court. In accordance with Bar to conflict-free counsel and the construction of Rule Rule 4-403(e), this opinion is binding upon all members 1.10 (a) of the Georgia Rules of Professional Conduct. of the State Bar of Georgia, and the Supreme Court “Where a constitutional right to counsel exists, our shall accord this opinion the same precedential author- Sixth Amendment cases hold that there is a correla- ity given to the regularly published judicial opinions tive right to representation that is free from conflicts of of the Court. interest.” Wood v. Georgia, 450 U.S. 261, 271 (101 SC 1097, 67 LE2d 220). Indeed, this Court has stated in no COMPLETE TEXT FROM THE ORDER uncertain terms that, “Effective counsel is counsel free OF THE SUPREME COURT OF GEORGIA from conflicts of interest.” Garland v. State, 283 Ga. 201 (657 SE2d 842) (2008). In keeping with this unequivo- Responding to a letter from the Georgia Public cal right to conflict-free representation, Rule 1.10 (a) Defender Standards Council (GPDSC), the State Bar provides as follows: Formal Advisory Opinion Board (Board) issued Formal Advisory Opinion 10-1 (FAO 10-1), answering the fol- While lawyers are associated in a firm, none of them lowing question in the negative: shall knowingly represent a client when any one of them practicing alone would be prohibited from May different lawyers employed in the circuit public doing so by Rule 1.7: Conflict of Interest: General Rule, defender office in the same judicial circuit represent 1.8(c): Conflict of Interest: Prohibited Transactions, 1.9: co-defendants when a single lawyer would have an Former Client or 2.2: Intermediary. impermissible conflict of interest in doing so?

76 Georgia Bar Journal (Emphasis in original.) Comment [1] concerning Rule 1.10 defines “firm” to include “lawyers …in a legal services organization.” Comment [3] further provides “Lawyers employed in the same unit of a legal service organization constitute a firm,….”

Under a plain reading of Rule 1.10 (a) and the comments thereto, circuit public defenders working in the Congratulations to circuit public defender office of the same judicial circuit are akin to lawyers working in the same unit of a legal the 2013 State Mock services organization and each judicial circuit’s public defender’s office1 is a “firm” as the term is used in Trial Team from the rule. This construction is in keeping with our past jurisprudence. Cf. Hung v. State, 282 Ga. 684 (2) (653 Middle Georgia SE2d 48) (2007) (attorney who filed motion for new trial was not considered to be “new” counsel for the Christian Homeschool purpose of an ineffective assistance of counsel claim Association in Macon! where he and trial counsel were from the same public defender’s office); Kennebrew v. State, 267 Ga. 400 (480 SE2d 1) (1996) (appellate counsel who was from the This was the team’s first trip same public defender office as appellant’s trial lawyer to the National High School could not represent appellant on appeal where appellant had an ineffective assistance of counsel claim); Mock Trial Championships, Ryan v. Thomas, 261 Ga. 661 (409 SE2d 507) (1991) (for where they placed 35th the purpose of raising a claim of ineffective assistance of counsel, “attorneys in a public defender’s office are to during the tournament in be treated as members of a law firm. . .”); Love v. State, Indianapolis in May. 293 Ga. App. 499, 501 at fn. 1 (667 SE2d 656) (2008). See also Reynolds v. Chapman, 253 F3d 1337, 1343-1344 A special thanks to all of our (11th Cir. 2001) (“While public defenders’ offices have certain characteristics that distinguish them from typi- financial donors for the 2013 cal law firms, our cases have not drawn a distinction season, including the between the two.”). Accordingly, FAO 10-1 is correct inasmuch is it concludes that public defenders working in the same judicial circuit are “firms” subject to State Bar of Georgia the prohibition set forth in Rule 1.10(a) when a conflict exists pursuant to the conflict of interest rules listed Young Lawyers Division therein, including in particular Rule 1.7.2 That is, if it is determined that a single public defender in the circuit A full list of 2013 season donors public defender’s office of a particular judicial circuit will be published on our website by has an impermissible conflict of interest concerning the representation of co-defendants, then that conflict of the end of August. interest is imputed to all of the public defenders working in the circuit public defender office of that particu- Visit our website, lar judicial circuit. See Restatement (Third) of the Law www.georgiamocktrial.org, for more Governing Lawyers §123 (d)(iv) (“The rules on imputed information about the program and conflicts . . . apply to a public-defender organization as opportunities to volunteer with a team they do to a law firm in private practice…”). or with the program itself. 2. Despite the unambiguous application of Rule 1.10 (a) to circuit public defenders, GPDSC complains that FAO 10-1 creates a per se or automatic rule of disqualification of a circuit public defender office. We disagree. This Court has stated that “[g]iven that multiple representation alone does not amount to a conflict of interest when one attorney is involved, it follows that counsel from the same [public defender office] are not automatically disqualified from repre-

June 2013 77

MT_jun13.indd 1 5/20/2013 4:57:27 PM senting multiple defendants charged with offenses another client, a former client, or a third person will arising from the same conduct.” Burns v. State, 281 materially and adversely affect the representation Ga. 338, 340 (638 SE2d 299) (2006) (emphasis in the of the client, except as permitted in (b). original). Here, Rule 1.10 does not become relevant (b) If client informed consent is permissible a or applicable until after an impermissible conflict of lawyer may represent a client notwithstanding interest has been found to exist. It is only when it is a significant risk of material and adverse effect if decided that a public defender has an impermissible each affected client or former client gives informed conflict in representing multiple defendants that the consent confirmed in writing to the representation conflict is imputed to the other attorneys in that public after: (1) consultation with the lawyer pursuant to defender’s office. Thus, FAO 10-1 does not create a per Rule 1.0(c); (2) having received in writing reasonable se rule of disqualification of a circuit public defender’s and adequate information about the material risks of office prior to the determination that an impermissible and reasonable available alternatives to the repre- conflict of interest exists. sentation; and (3) having been given the opportunity to consult with independent counsel. Although a lawyer (and by imputation his law firm, (c) Client informed consent is not permissible if including his circuit public defender office) may not the representation: (1) is prohibited by law or these always have an impermissible conflict of interest in Rules; (2) includes the assertion of a claim by one representing multiple defendants in a criminal case, client against another client represented by the this should not be read as suggesting that such mul- lawyer in the same or a substantially related pro- tiple representation can routinely occur. The Georgia ceeding; or (3) involves circumstances rendering Rules of Professional Conduct explain that multiple it reasonably unlikely that the lawyer will be able representation of criminal defendants is ethically to provide adequate representation to one or more permissible only in the unusual case. See Rule 1.7, of the affected clients. The maximum penalty for a Comment [7] (“The potential for conflict of interest in violation of this Rule is disbarment. representing multiple defendants in a criminal case is so grave that ordinarily a lawyer should decline 3. Our opinion cites several precedents that concern to represent more than one co-defendant.”). We real- the constitutional guarantee of the assistance of ize that the professional responsibility of lawyers to counsel, and it is only fitting that we think about avoid even imputed conflicts of interest in criminal the constitutional values that Rule 1.10 promotes as cases pursuant to Rule 1.10 (a) imposes real costs on we consider the meaning of Rule 1.10. We do not Georgia’s indigent defense system, which continu- hold that the imputation of conflicts required by ally struggles to obtain the resources needed to pro- Rule 1.10 is compelled by the Constitution, nor do vide effective representation of poor defendants as we express any opinion about the constitutionality the Constitution requires. See Gideon v. Wainwright, of any other standard for imputation. Rule 1.10 is 373 U.S. 335 (83 SC 792, 9 LE2d 799) (1963). But the the rule that we have adopted in Georgia, FAO 10-1 problem of adequately funding indigent defense correctly interprets it, and we decide nothing more. cannot be solved by compromising the promise of Gideon. See Garland v. State, 283 Ga. 201, 204 (657 FORMAL ADVISORY OPINION NO. 10-1 SE2d 842) (2008). QUESTION PRESENTED: Since FAO 10-1 accurately interprets Rule 1.10 (a) as it is to be applied to public defenders working in circuit May different lawyers employed in the circuit public public defender offices in the various judicial circuits of defender office in the same judicial circuit represent this State, it is approved.3 co-defendants when a single lawyer would have an impermissible conflict of interest in doing so? Formal Advisory Opinion 10-1 approved. All the Justices concur. SUMMARY ANSWER:

Endnotes Lawyers employed in the circuit public defender 1. There are 43 circuit public defender offices in office in the same judicial circuit may not represent Georgia. co-defendants when a single lawyer would have an impermissible conflict of interest in doing so. 2. Rule 1.7 of the Georgia Rules of Professional Conduct provides: OPINION:

(a) A lawyer shall not represent or continue to In Georgia, a substantial majority of criminal defen- represent a client if there is a significant risk that dants are indigent. Many of these defendants receive the lawyer’s own interests or the lawyer’s duties to representation through the offices of the circuit public

78 Georgia Bar Journal defenders. More than 40 judicial circuit public defender That is the extent of the guidance in the Georgia Rules offices operate across the State. of Professional Conduct and the comments thereto. In the terms used in this Comment, the answer to the Issues concerning conflicts of interest often arise question presented is determined by whether lawyers in the area of criminal defense. For example, a single in a circuit public defender’s office are in the same lawyer may be asked to represent co-defendants who “unit” of a legal services organization. have antagonistic or otherwise conflicting interests. The lawyer’s obligation to one such client would materially The Supreme Court of Georgia has not answered the and adversely affect the lawyer’s ability to represent question presented. The closest it has come to doing the other co-defendant, and therefore there would be a so was in the case of Burns v. State, 281 Ga. 338 (2006). conflict of interest under Georgia Rule of Professional In that case, two lawyers from the same circuit public Conduct 1.7(a). See also Comment [7] to Georgia Rule of defender’s office represented separate defendants who Professional Conduct 1.7 (“…The potential for conflict of were tried together for burglary and other crimes. The interest in representing multiple defendants in a criminal Court held that such representation was permissible case is so grave that ordinarily a lawyer should decline to because there was no conflict between the two defen- represent more than one codefendant”). Each such client dants. Presumably, therefore, the same assistant public would also be entitled to the protection of Rule 1.6, which defender could have represented both defendants. The requires a lawyer to maintain the confidentiality of infor- Court recognized that its conclusion left open “the mation gained in the professional relationship with the issue whether public defenders should be automati- client. One lawyer representing co-defendants with con- cally disqualified or be treated differently from private flicting interests certainly could not effectively represent law firm lawyers when actual or possible conflicts arise both while keeping one client’s information confidential in multiple defendant representation cases.” Id. at 341. from the other. See Georgia Rule of Professional Conduct 1.4 (“A lawyer shall explain a matter to the extent rea- Other states, in case law and ethics opinions, have sonably necessary to permit the client to make informed decided the question presented in disparate ways. Some decisions regarding the representation . . .”). impute conflicts within particular local defender offices. See Commonwealth v. Westbrook, 400 A2d 160, 162 (Pa. Some conflicts of interest are imputed from one law- 1979); Turner v. State, 340 So.2d 132, 133 (Fla. App. 2nd yer to another within an organization. Under Georgia Dist. 1976); Tex. Ethics Op. 579 (November 2007); Va. Rule of Professional Conduct 1.10(a), “[w]hile lawyers Legal Ethics Op. No. 1776 (May 2003); Ct. Informal Op. are associated in a firm, none of them shall knowingly 92-23 (July 1992); S.C. Bar Advisory Op. 92-21 (July 1992). represent a client when any one of them practicing alone Some courts and committees have allowed for the pos- would be prohibited from doing so….” Therefore, the sibility that there can be sufficient separation of lawyers answer to the question presented depends in part upon even within the same office that imputation should not whether a circuit public defender office constitutes a be automatic. Graves v. State, 619 A.2d 123, 133-134 (Md. “firm” within the meaning of Rule 1.10. Ct. of Special Appeals 1993); Cal. Formal Op. No. 2002- 158 (Sept. 2002); Montana Ethics Op. 960924. Others have Neither the text nor the comments of the Georgia decided more generally against a per se rule of impu- Rules of Professional Conduct explicitly answers the tation of conflicts. See Bolin v. State, 137 P.3d 136, 145 question. The terminology section of the Georgia Rules (Wyo. 2006); State v. Bell, 447 A.2d 525, 529 (N.J. 1982); of Professional Conduct defines “firm” as a “law- People v. Robinson, 402 N.E.2d 157, 162 (Ill. 1979); State yer or lawyers in a private firm, lawyers employed v. Cook, 171 P.3d 1282, 1292 (Idaho App. 2007). in the legal department of a corporation or other organization and lawyers employed in a legal ser- The Eleventh Circuit Court of Appeals looked at an vices organization. See Comment, Rule 1.10: Imputed imputed conflict situation in a Georgia public defender Disqualification.” Comment [1] to Rule 1.10 states that office. The Court noted that “[t]he current disciplinary the term “firm” includes lawyers “in a legal services rules of the State Bar in Georgia preclude an attorney organization,” without defining a legal services organi- from representing a client if one of his or her law part- zation. Comment [3], however, provides that: ners cannot represent that client due to a conflict of interest.” Reynolds v. Chapman, 253 F.3d 1337, 1344 Similar questions can also arise with respect to law- (2001). The Court further stated that “[w]hile public yers in legal aid. Lawyers employed in the same unit defender’s offices have certain characteristics that dis- of a legal service organization constitute a firm, but tinguish them from typical law firms, our cases have not necessarily those employed in separate units. As not drawn a distinction between the two.” Reynolds, in the case of independent practitioners, whether supra, p. 1343. the lawyers should be treated as associated with each other can depend on the particular rule that is The general rule on imputing conflicts within a law involved, and on the specific facts of the situation. firm reflects two concerns. One is the common eco-

June 2013 79 nomic interest among lawyers in a firm. All lawyers in Other concerns include the independence of the a firm might benefit if one lawyer sacrifices the interests assistant public defender and the allocation of office of one client to serve the interests of a different, more resources. If one supervisor oversees the representation lucrative client. The firm, as a unified economic entity, by two assistants of two clients whose interests conflict, might be tempted to serve this common interest, just the potential exists for an assistant to feel pressured to as a single lawyer representing both clients would be represent his or her client in a particular way, one that tempted. Second, it is routine for lawyers in a firm to might not be in the client’s best interest. Furthermore, have access to confidential information of clients. A conflicts could arise within the office over the allocation lawyer could access the confidential information of one of investigatory or other resources between clients with of the firm’s clients to benefit a different client. For at conflicting interests. least these two reasons, a conflict of one lawyer in a private firm is routinely imputed to all the lawyers in the The ethical rules of the State Bar of Georgia should firm. See RESTATEMENT OF THE LAW GOVERNING not be relaxed because clients in criminal cases are indi- LAWYERS Third, Sec. 123, Comment b. gent. Lawyers must maintain the same level of ethical responsibilities whether their clients are poor or rich. The first of these concerns is not relevant to a circuit public defender office. “The salaried government Lawyers employed in the circuit public defender employee does not have the financial interest in the office are members of the same “unit” of a legal ser- success of departmental representation that is inherent vices organization and therefore constitute a “firm” in private practice.” Frazier v. State, 257 Ga. 690, 695 within the meaning of Rule 1.10. Lawyers employed in (1987) citing ABA Formal Opinion 342. the circuit public defender office in the same judicial circuit may not represent co-defendants when a single The concerns about confidentiality, however, are lawyer would have an impermissible conflict of interest another matter. The chance that a lawyer for one in doing so. Conversely, lawyers employed in circuit defendant might learn the confidential information public defender offices in different judicial circuits are of another defendant, even inadvertently, is too great not considered members of the same “unit” or “firm” to overlook. within the meaning of Rule 1.10.

The State Bar of Georgia Handbook is always available online at ETHICS DILEMMA? www.gabar.org/ Lawyers who would like to discuss an ethics dilemma with a member of the Office of the General Counsel staff should contact the Ethics Helpline at 404-527-8741, 800-682-9806 barrules/. or log in to www.gabar.org and submit your question by email.

80 Georgia Bar Journal First Publication of Revised Proposed Formal Advisory Opinion No. 10-R2

Pursuant to Rule 4-403 (c) of the Rules and Regulations 2. Can a lawyer who is closing a real estate transaction of the State Bar of Georgia, on June 1, 2012, the Formal meet his/her obligations under the law and the Georgia Advisory Opinion Board made a preliminary determi- Rules of Professional Conduct by reviewing, revising nation that Proposed Formal Advisory Opinion No. as necessary, and adopting documents sent from the 10-R2 should be issued. Proposed Formal Advisory lender or from other sources? Opinion No. 10-R2 appeared in the August 2012 issue of the Georgia Bar Journal for 1st publication. State Bar 3. May a lawyer deliver funds from a real estate closing members were invited to file comments to the proposed directly to the seller or lender, without depositing them opinion with the Formal Advisory Opinion Board. into his/her IOLTA account? Several comments regarding the proposed opinion were received from members of the Bar. SUMMARY ANSWER:

Upon further review of the proposed opinion, the A Georgia lawyer may not ethically conduct a “wit- Formal Advisory Opinion Board has revised the pro- ness only” closing. Unless parties to a transaction are posed opinion and determined that the revised proposed handling it pursuant to Georgia’s pro se exemption, opinion should be issued. State Bar members are invited Georgia law requires that a lawyer handle a real estate to file comments to the revised proposed opinion with the closing (see O.C.G.A § 15-19-50, UPL Advisory Opinion Formal Advisory Opinion Board at the following address: No. 2003-2 and Formal Advisory Opinion No. 86-5), which means that the lawyer must review all docu- State Bar of Georgia ments to be used in the transaction, resolve any errors 104 Marietta Street NW in the paperwork, detect and resolve ambiguities in Suite 100 title or title defects, and otherwise act with competence. Atlanta, Georgia 30303 When handling a real estate closing in Georgia a law- Attention: John J. Shiptenko yer does not absolve himself/herself from liability for either malpractice or violations of the Georgia Rules An original and one (1) copy of any comment of Professional Conduct by claiming that he/she has regarding the revised proposed opinion must be filed acted only as a witness and not as a lawyer. (See UPL with the Formal Advisory Opinion Board by July Advisory Opinion No. 2003-2 and Formal Advisory 15, 2013, in order for the comment to be considered Opinion No. 04-1). A lawyer conducting a closing may by the Board. Any comment to a proposed opinion use documents prepared by others after ensuring their should make reference to the number of the proposed accuracy, making necessary revisions, and adopting opinion. Any comment submitted to the Board pursu- the work. A lawyer who takes funds from a real estate ant to Rule 4-403(c) is for the Board’s internal use in transaction must deposit them into his/her IOLTA assessing proposed opinions and shall not be released account or into the IOLTA account of another Georgia unless the comment has been submitted to the Supreme lawyer. (See Georgia Rule of Professional Conduct Court of Georgia in compliance with Bar Rule 4-403(d). 1.15(II) and Formal Advisory Opinion No. 04-1). After consideration of comments, the Formal Advisory Opinion Board will make a final determination of OPINION: whether the opinion should be issued. If the Formal Advisory Opinion Board determines that an opinion A “witness only” closing occurs when an individual should be issued, final drafts of the opinion will be pub- presides over the execution of deeds of conveyance and lished, and the opinion will be filed with the Supreme other closing documents but purports to do so merely Court of Georgia. as a witness and notary, not as someone who is practicing law. (UPL Advisory Opinion No. 2003-2). In order to protect the public from those not properly trained or REVISED PROPOSED FORMAL ADVISORY qualified to render these services, lawyers are required OPINION NO. 10-R2 to “be in control of the closing process from beginning to end.” (Formal Advisory Opinion No. 00-3). A lawyer who QUESTIONS PRESENTED: purports to handle a closing in the limited role of a witness violates the Georgia Rules of Professional Conduct. 1. Does a lawyer violate the Georgia Rules of Professional Conduct when he/she conducts a “wit- In recent years many out-of-state lenders, including ness only” closing for real estate? some of the largest banking institutions in the country,

June 2013 81 have changed the way they manage the real estate lawyers who are not in their employ; but, a lawyer may transactions they are funding. These national lenders review and adopt work completed by a nonlawyer who hire lawyers who agree to serve the limited role of pre- is not an employee of the lawyer’s firm. Georgia law siding over the execution of the documents (i.e., witness allows a title insurance company or other nonlawyer only closings). In advance of a witness only closing a to examine records of title to real property, prepare lawyer typically receives “signing instructions” and a abstracts of title, and issue related insurance. (O.C.G.A packet of documents prepared by the lender or at the § 15-19-53). Nonlawyers may provide attorneys with lender’s direction. The instructions specifically warn paralegal and clerical services, so long as “at all times the lawyer NOT to review the documents or give legal the attorney receiving the information or services shall advice to any of the parties to the transaction. The “wit- maintain full professional and direct responsibility to ness only” lawyer obtains the appropriate signatures his clients for the information and services received.” on the documents, notarizes them, and returns them to (O.C.G.A § 15-19-54; also see UPL Advisory Opinion the lender or to a third party entity by mail. No. 2003-2 and Rules 5.3 and 5.5, Georgia Rules of Professional Conduct). Proponents of these arrangements claim that they offer convenience to consumers who do not want to While a lawyer does not violate the Georgia Rules of travel to a lawyer’s office to conduct their closing, and Professional Conduct by using work product of non- that they are usually less expensive than traditional lawyers who he/she does not employ, the lawyer has closings conducted by lawyers. Detractors point out an affirmative obligation to review the work product that the lawyer’s failure to review closing documents and may not use it unless he/she revises it if neces- can facilitate foreclosure fraud, problems with title, and sary, approves it, and adopts it as his/her own. The other errors that may not be detected until years later lawyer is responsible for the entire closing transaction when the owner of a property attempts to resell it. and each document used in the transaction, whether he/she completes the documents himself/herself, has A Georgia lawyer must provide competent rep- employees complete them, or employs documents sent resentation and must exercise independent profes- from elsewhere. A Georgia lawyer must avoid facilitat- sional judgment in rendering advice. (Rules 1.1 and 2.1, ing activity that would result in aiding others in the Georgia Rules of Professional Conduct). When a lawyer unlicensed practice of law. (Rule 5.5, Georgia Rules of agrees to serve as a mere figurehead, so that it appears Professional Conduct)” there is a lawyer “handling” a closing, the lawyer violates his/her obligations under the Georgia Rules of The obligation to review, revise, approve and adopt Professional Conduct. The lawyer’s signature on the documents used in a real estate closing applies to closing statement is the imprimatur of a successful the entire series of events that comprise a closing. transaction. Because UPL Advisory Opinion No. 2003- (Formal Advisory Opinions No. 86-5 and 00-3, and 2 and the Supreme Court Order adopting it require UPL Advisory Opinion No. 2003-2). While the Supreme (subject to the pro se exception) that only a lawyer can Court has not explicitly enumerated what all of those close a real estate transaction, the lawyer signing the events are, they may include, but not be limited to: (i) closing statement would be found to be doing so in his rendering an opinion as to title and the resolution of or her capacity as a lawyer. Therefore, when a closing any defects in marketable title; (ii) preparation of deeds lawyer purports to act merely as a witness, this is a mis- of conveyance, including warranty deeds, quitclaim representation of the lawyer’s role in the transaction. deeds, deeds to secure debt, and mortgage deeds; (iii) Georgia Rule of Professional Conduct 8.4 provides that overseeing and participating in the execution of instru- it is professional misconduct for an attorney to engage ments conveying title; (iv) supervising the recordation in “conduct involving . . . misrepresentation.” of documents conveying title; and (v) in those situations where the lawyer takes physical possession of The Georgia Rules of Professional Conduct allow funds, collecting and disbursing funds exchanged in lawyers to outsource both legal and nonlegal work. (See accordance with Rule 1.15(II). Since the Georgia Rules ABA Formal Advisory Opinion 08-451.) A lawyer does of Professional Conduct allow a lawyer to provide not violate the Georgia Rules of Professional Conduct “unbundled” services to a client, it is not necessary by receiving documents from the client or elsewhere for that all of these events take place in the lawyer’s office, use in a closing transaction, even though the lawyer has or even in the State of Georgia. Rule 1.2(c) specifically not supervised the nonlawyers who have prepared the allows a lawyer to limit the scope and objectives of documents. The lawyer is responsible for utilizing these representation if the limitation is reasonable under the documents in compliance with the Georgia Rules of circumstances and if the client gives informed consent. Professional Conduct and remains responsible for any Yet, the lawyer’s ability to limit the scope and objec- matters arising from using documents provided by oth- tives of his/her representation is not unconstrained. ers. (Rule 5.5, Georgia Rules of Professional Conduct) Even if these steps are performed elsewhere, the lawyer Lawyers do not have an obligation to supervise non- maintains full professional and direct responsibility for

82 Georgia Bar Journal the entire transaction and for the services rendered to of a client or in any other fiduciary capacity he/she must the client. In Georgia, “those who conduct witness only deposit the funds into, and administer them from, an closings…are engaged in the practice of law.” (UPL IOLTA account. (Formal Advisory Opinion No. 04-1). It Advisory Opinion No. 2003-2). Given the irreducible should be noted that Georgia law also allows the lender nature of this principle, it would not be reasonable for a to disburse funds. (O.C.G.A. § 44-14-13(a)(10)). A lawyer lawyer to attempt to further delimit his/her role in the violates the Georgia Rules of Professional Conduct when delivery of legal services. he/she delivers closing proceeds to a title company or to a third party settlement company without depositing them Finally, as in any transaction in which a lawyer han- into an attorney escrow account. Pursuant to O.C.G.A. dles client funds, a lawyer must comply with Georgia § 44-14-13, it is a misdemeanor for a third party closing Rule of Professional Conduct 1.15(II) when handling a agent to receive or disburse loan proceeds because only real estate closing. If the lawyer handles funds on behalf lawyers and lenders can serve as settlement agents. Notice of Motion to Amend the Rules and Regulations of the State Bar of Georgia No earlier than thirty days after the publication of tion of its Executive Committee, and presents to this this Notice, the State Bar of Georgia will file a Motion to Court its Motion to Amend the Rules and Regulations Amend the Rules and Regulations for the Organization of the State Bar of Georgia as set forth in an Order of and Governance of the State Bar of Georgia pursuant this Court dated December 6, 1963 (219 Ga. 873), as to Part V, Chapter 1 of said Rules, 2012-2013 State Bar amended by subsequent Orders, and published at 2012- of Georgia Directory and Handbook, p. H-6-7 (hereinafter 2013 State Bar of Georgia Directory and Handbook, pp. 1-H, referred to as “Handbook”). et seq., The State Bar respectfully moves that Rule 1-208 I hereby certify that the following is the verbatim text regarding resignation from membership be amended as of the proposed amendments as approved by the Board set out below. of Governors of the State Bar of Georgia. Any member of the State Bar of Georgia who desires to object to these I. proposed amendments to the Rules is reminded that he or she may only do so in the manner provided by Rule Proposed Amendments to Part I, Creation and 5-102, Handbook, p. H-6. Organization, Chapter 2, Membership, Rule 1-208, This Statement and the following verbatim text are Resignation from Membership, of the Rules of the intended to comply with the notice requirements of State Bar of Georgia Rule 5-101, Handbook, p. H-6. It is proposed that Rule 1-208 regarding Resignation Cliff Brashier from Membership in Part I, Chapter 2, of the Rules Executive Director of the State Bar of Georgia be amended by deleting State Bar of Georgia the struck-through sections and inserting the sections underlined as follows: IN THE SUPREME COURT STATE OF GEORGIA Rule 1-208. Resignation from Membership

IN RE: STATE BAR OF GEORGIA a. Resignation while in good standing: A member Rules and Regulations for its of the State Bar in good standing may under oath, peti- Organization and Government tion the Executive Committee for leave to resign from the State Bar. Upon acceptance of such petition by the MOTION TO AMEND 2013-2 Executive Committee by majority vote, such person shall not practice law in this state nor be entitled to any MOTION TO AMEND THE RULES AND privileges and benefits accorded to active members REGULATIONS OF THE of the State Bar in good standing unless such person STATE BAR OF GEORGIA complies with part (b) (f) or (c) (g) of this Rule.

COMES NOW, the State Bar of Georgia, pursuant 1. The petition for leave to resign while in good to the authorization of its Board of Governors at its standing shall be filed, under oath, with the meeting on March 9, 2013, and upon the recommenda- Executive Director of the State Bar and shall

June 2013 83 contain a statement that there are no disciplinary b. f. Readmission within five years after resignation: actions or criminal proceedings pending against for a period of five years after the effective date of a the petitioner and that petitioner is a member in voluntary resignation, the member of the State Bar who good standing. A copy of the petition shall be has resigned while in good standing pursuant to this served upon the General Counsel of the State Bar. Rule may apply for readmission to the State Bar upon completion of the following terms and conditions: 2. No petition for leave to resign while in good standing shall be accepted if there are disciplinary 1. payment in full of any delinquent dues, late proceedings or criminal charges pending against fees and penalties owing at the time the petition the member or if the member is not a member in for leave to resign was accepted, and payment in good standing. full of the current dues for the year in which readmission is sought; 3. A petition filed under this paragraph shall constitute a waiver of the confidentiality provisions 2. payment of a readmission fee to the State Bar of Rule 4-221(d) as to any pending disciplinary equal to the amount the member seeking readmis- proceedings. sion would have paid during the period of resignation if he or she had instead elected inactive b. Resignation while delinquent or suspended status; and, for failure to pay dues or for failure to comply with continuing legal education requirements: 3. for resignations while suspended for failure to A member of the State Bar who is delinquent or comply with continuing legal education require- suspended (but not terminated) for failure to pay ments under part (b) of this Rule, submission of dues or failure to comply with continuing legal a certificate from the Commission on Continuing education requirements may under oath, petition Lawyer Competency declaring that the suspended the Executive Committee for leave to resign from member is current on all requirements for continu- the State Bar. Upon acceptance of such petition by ing legal education; and, the Executive Committee by majority vote, such person shall not practice law in this state nor be 4. 3. submission to the membership section of entitled to any privileges and benefits accorded to the State Bar of a determination of fitness from active members of the State Bar unless such per- the Board to Determine Fitness of Bar Applicants. son complies with part (f) or (g) of this Rule. Provided the former member seeking readmission has applied to the Board to Determine Fitness of c. A petition for leave to resign from membership Bar Applicants before the expiration of the five with the State Bar shall comply with the following: year period after his or her resignation, the former member shall be readmitted upon submitting a 1. the petition shall be filed under oath with determination of fitness even if the five year peri- the Executive Director of the State Bar and shall od has expired. This provision shall be applicable contain a statement that there are no disciplinary to all former members who applied to the Board actions or criminal proceedings pending against to Determine Fitness of Bar Applicants on or after the petitioner; and, January 1, 2008.

2. the petition shall contain a statement as to (c) g. Readmission after five years: after the expira- whether the petition is being filed under part (a) tion of five years from the effective date of a volun- or part (b) of this Rule. If the petition is being filed tary resignation, the former member must comply under part (b), the petition shall state the term of with the Rules governing admission to the practice the delinquency and/or suspension for failure to of law in Georgia as adopted by the Supreme Court pay dues or to comply with continuing legal edu- of Georgia. cation requirements. If the proposed amendments to Rule 1-208 of the d. No petition for leave to resign shall be accepted Rules of the State Bar of Georgia are adopted, the new if there are disciplinary proceedings or criminal Rule 1-208 would read as follows: charges pending against the member, or if the member is not in good standing for failure to pay child Rule 1-208. Resignation from Membership support obligations under Bar Rule 1-209. a. Resignation while in good standing: A member e. A petition filed under this Rule shall constitute of the State Bar in good standing may under oath, a waiver of the confidentiality provisions of Rule petition the Executive Committee for leave to resign 4-221(d) as to any pending disciplinary proceedings. from the State Bar. Upon acceptance of such petition

84 Georgia Bar Journal by the Executive Committee by majority vote, such full of the current dues for the year in which read- person shall not practice law in this state nor be enti- mission is sought; tled to any privileges and benefits accorded to active members of the State Bar in good standing unless 2. payment of a readmission fee to the State Bar such person complies with part (f) or (g) of this Rule. equal to the amount the member seeking readmission would have paid during the period of resigna- b. Resignation while delinquent or suspended for tion if he or she had instead elected inactive status; failure to pay dues or for failure to comply with continuing legal education requirements: A member of 3. for resignations while suspended for failure to the State Bar who is delinquent or suspended (but comply with continuing legal education require- not terminated) for failure to pay dues or failure to ments under part (b) of this Rule, submission of comply with continuing legal education requirements a certificate from the Commission on Continuing may under oath, petition the Executive Committee for Lawyer Competency declaring that the suspended leave to resign from the State Bar. Upon acceptance of member is current on all requirements for continu- such petition by the Executive Committee by majority ing legal education; and, vote, such person shall not practice law in this state nor be entitled to any privileges and benefits accorded 4. submission to the membership section of the to active members of the State Bar unless such person State Bar of a determination of fitness from the complies with part (f) or (g) of this Rule. Board to Determine Fitness of Bar Applicants. Provided the former member seeking readmission c. A petition for leave to resign from membership with has applied to the Board to Determine Fitness of the State Bar shall comply with the following: Bar Applicants before the expiration of the five year period after his or her resignation, the former 1. the petition shall be filed under oath with member shall be readmitted upon submitting the Executive Director of the State Bar and shall a determination of fitness even if the five year contain a statement that there are no disciplinary period has expired. actions or criminal proceedings pending against the petitioner; and, g. Readmission after five years: after the expiration of five years from the effective date of a volun- 2. the petition shall contain a statement as to tary resignation, the former member must comply whether the petition is being filed under part (a) with the Rules governing admission to the practice or part (b) of this Rule. If the petition is being filed of law in Georgia as adopted by the Supreme Court under part (b), the petition shall state the term of of Georgia. the delinquency and/or suspension for failure to pay dues or to comply with continuing legal edu- SO MOVED, this ______day of ______, 2013. cation requirements. Counsel for the State Bar of Georgia d. No petition for leave to resign shall be accepted Robert E. McCormack if there are disciplinary proceedings or criminal Deputy General Counsel charges pending against the member, or if the mem- State Bar No. 485375 ber is not in good standing for failure to pay child support obligations under Bar Rule 1-209. OFFICE OF THE GENERAL COUNSEL e. A petition filed under this Rule shall constitute State Bar of Georgia a waiver of the confidentiality provisions of Rule 104 Marietta Street, NW, Suite 100 4-221(d) as to any pending disciplinary proceed- Atlanta, Georgia 30303 ings. 404-527-8720

f. Readmission within five years after resignation: for a period of five years after the effective date of a voluntary resignation, the member of the State Bar who has resigned pursuant to this Rule may apply for readmission to the State Bar upon completion of the following terms and conditions:

1. payment in full of any delinquent dues, late fees and penalties owing at the time the petition for leave to resign was accepted, and payment in

June 2013 85 State Bar of Georgia We’re here for you! Law Practice Management Program The Law Practice Management Program is a member service to help all Georgia lawyers and their employees put together the pieces of the office management puzzle. Whether you need advice on new computers or copiers, personnel issues, compensation, workflow, file organization, tickler systems, library materials or software, we have the resources and training to assist you. Feel free to browse our online forms and article collections, check out a book or videotape from our library, or learn more about our on-site management consultations and training sessions, 404-527-8772. Consumer Assistance Program The purpose of the Consumer Assistance Program (CAP) is to serve the public and members of the Bar. Individuals contact CAP with questions or issues about legal situations, seeking information and referrals, complaints about attorneys and com- munication problems between clients and their attorneys. Most situation can be resolved informally by CAP’s providing information and referrals to is the public or, as a courtesy, contacting the attorney. CAP’s actions foster better communications help only a between clients and attorneys in a non-disciplinary and confidential manner, 404-527-8759. Lawyer Assistance Program This free program provides confidential assistance to Bar members whose personal problems may be call, interfering with their ability to practice law. Such problems include stress, chemical dependency, family problems and mental or emotional impairment, or 800-327-9631. click Fee Arbitration The Fee Arbitration program is a service to the general public and lawyers of Georgia. It provides a convenient mechanism for the resolution of fee disputes between attorneys and clients. The actual email arbitration is a hearing conducted by two experienced attorneys and one non-lawyer citizen. Like judges, they hear the arguments on both sides and decide the outcome of the dispute. Arbitration is away. impartial and usually less expensive than going to court, 404-527-8750.

404-527-8700 n 800-327-9631 n www.gabar.org Classified Resources

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June 2013 87 Classified Resources

Forensic Accounting & Litigation Support. CPA since 1982. Analysis of financial information for commercial insurance claims, owner disputes, business litigation, fraud examinations, bankruptcy and nonprofits. Greg ADVERTISE DeFoor, CPA, CFE—Cobb County—678-644-5983— [email protected]. Are you attracting the right audience for Security Expert Witness—Premises Liability/ Negligent Security Expert. Plantiff and Defense. your services? Advertisers are discovering Former Secret Service agent with over 40 years a fact well known to Georgia lawyers. If experience covering apartment complexes, condos, restaurants, bars, shopping centers, parking lots/ you have something to communicate to garages, buildings, etc. Howard B. Wood, 850-906-0516; www.securecorpinc.com. the lawyers in the state, be sure that it is Position Wanted published in the Georgia Bar Journal. Personal Injury and Worker’s Compensation—Well- Contact Jennifer Mason established, highly successful Atlanta plaintiff’s law firm has openings for both experienced Personal Injury at 404-527-8761 and Worker’s Compensation attorneys. Excellent or [email protected]. financial opportunity with meaningful responsibility. Seasoned, professional environment. Quality support. Good benefits. Congenial atmosphere. Central location. Send resume to: GBJ at [email protected]. Advertisers Index 100 Peachtree...... 69 ABA Retirement Funds...... 35 ARAG North America, Inc...... 65 Arthur T. Anthony...... 9 Georgia Lawyers Insurance Program...... IFC Georgia Trend Magazine...... 15 Gilsbar, Inc...... 39 Investors Title Insurance Company...... 71 Jackson Lewis LLP...... 49 Marsh...... 15 Member Benefits, Inc...... 37 Norwitch Document Laboratory...... 13 PNC Financial Services Group...... 7 SoftPro Corporation...... 5 State Bank & Trust Company...... 53 Stetson University College of Law...... 69 Thomson Reuters...... BC Warren R. Hinds, P.C...... 51

88 Georgia Bar Journal

Trial By Jury: What’s the Big Deal?

“Trial By Jury: What’s the Big Deal?” is an animated presentation for high school civics classes in Georgia to increase court literacy among young people. This presentation was created to be used by high school civics teachers as a tool in fulﬁ lling four speciﬁ c requirements of the Social Studies Civics and Government performance standards.

This animated presentation reviews the history and importance of trial by jury through a discussion of the Magna Carta, the Star Chamber, the trial of William Penn, the Constitutional Convention in 1787, the Constitution and the Bill of Rights. Also covered in the presentation are how citizens are selected for jury duty, the role of a juror, and the importance of an impartial and diverse jury.

The State Bar of Georgia’s Law-Related Education Program offers several other opportunities for students and teachers to explore the law. Students can participate in Journey Through Justice, a free class tour program at the Bar Center, during which they learn a law lesson and then participate in a mock trial. Teachers can attend free workshops correlated to the Georgia Performance Standards on such topics as the juvenile and criminal justice systems, federal and state courts, and the Bill of Rights. The LRE program also produces the textbook An Introduction to Law in Georgia for use in middle and high school classrooms.

You may view “Trial By Jury: What’s the Big Deal?” at www.gabar.org/ forthepublic/forteachersstudents/lre/ teacherresources/index.cfm. For a free DVD copy, email stephaniew@gabar. org or call 404-527-8792. For more information on the LRE Program, contact Deborah Craytor at deborahcc@gabar. org or 404-527-8785.

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