April 2021 Volume 26, Number 5
From the Executive GEORGIA BAR Director: Built to Last
Usufructs vs. Estates for Years: Why the Difference Matters in JOURNAL the Era of COVID-19 30th Annual Georgia Bar Media & Judiciary Conference
The Amazing (and Amazingly Misused) Apostrophe
2021 ANNUAL MEETING Isle of Palms, South Carolina | June 10-13 CorpCare
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EDITORIAL BOARD OFFICERS OF THE QUICK DIAL MANUSCRIPT SUBMISSION STATE BAR OF GEORGIA EDITOR-IN-CHIEF ATTORNEY DISCIPLINE The Georgia Bar Journal welcomes the submission of Kristin Poland PRESIDENT 800-334-6865 ext. 720 unsolicited legal manuscripts on topics of interest to Dawn M. Jones 404-527-8720 the State Bar of Georgia or written by members of MEMBERS the State Bar of Georgia. Submissions should be 10 Donald P. Boyle Jr. PRESIDENT-ELECT CLIENT ASSISTANCE PROGRAM to 12 pages, double-spaced (including endnotes) and J. Kyle Brooks Elizabeth L. Fite 404-527-8759 on letter-size paper. Citations should conform to A John Clay Bush TREASURER CONFERENCE ROOM RESERVATIONS UNIFORM SYSTEM OF CITATION (19th ed. 2010). Timothy J. Colletti Sarah B. “Sally” Akins 404-419-0155 Please address unsolicited articles to: Kristin Poland, Angela Ellen Cusimano State Bar of Georgia, Communications Department, Jacob E. Daly SECRETARY FEE ARBITRATION 104 Marietta St. NW, Suite 100, Atlanta, GA 30303. Bridgette E. Eckerson Hon. J. Antonio “Tony” DelCampo 404-527-8750 Authors will be notified of the Editorial Board’s Jake Evans IMMEDIATE PAST PRESIDENT CLE TRANSCRIPTS decision regarding publication. Catherine Fitch Darrell Sutton 404-527-8710 Lynn Gavin The Georgia Bar Journal welcomes the submission Mary Elizabeth Gilchrist YLD PRESIDENT DIVERSITY PROGRAM of news about local and voluntary bar association Megan Turley Hodgkiss Bert Hummel 404-527-8754 happenings, Bar members, law firms and topics of interest to attorneys in Georgia. Please send news Eric Hooper YLD PRESIDENT-ELECT ETHICS HELPLINE releases and other information to: Jennifer Mason, Abbey Beth Morrow Elissa B. Haynes 800-682-9806 Assistant Director of Communications, 104 Marietta Amber L. Nickell 404-527-8741 Kevin Patrick YLD IMMEDIATE PAST PRESIDENT St. NW, Suite 100, Atlanta, GA 30303; 404-527-8761; Derrick Alexander Pope Will Davis GEORGIA BAR FOUNDATION/IOLTA [email protected]. Roxann Sherri Smithers 404-588-2240 DISABILITIES Michael Steven Webb COMMUNICATIONS GEORGIA BAR JOURNAL If you have a disability which requires printed Pamela Y. White-Colbert COMMITTEE 404-527-8791 Mark W. Wortham materials in alternate formats, please call 404-526- CHAIRPERSON GOVERNMENTAL AFFAIRS 8627 for assistance. EXECUTIVE COMMITTEE LIAISON Leslie L. Cadle 404-526-8608 Martin Valbuena PUBLISHER’S STATEMENT VICE CHAIRPERSON ICLE Derrick Alexander Pope 678-529-6688 The Georgia Bar Journal (ISSN-1085-1437) is EDITORS EMERITUS LAWYER ASSISTANCE PROGRAM published six times per year (February, April, June, August, October, December) by the State Bar of Bridgette E. Eckerson (2017-19) COMMUNICATIONS 800-327-9631 Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Timothy J. Colletti (2015-17) DEPARTMENT LAW PRACTICE MANAGEMENT GA 30303. Copyright State Bar of Georgia 2021. One Bridgette E. Eckerson (2012-15) DIRECTOR 404-527-8773 copy of each issue is furnished to members as part Robert R. Stubbs (2010-12) Lauren Kane of their State Bar license fees. Subscriptions: $36 to Donald P. Boyle Jr. (2007-10) LAW-RELATED EDUCATION non-members. Single copies: $6. Periodicals postage Marcus D. Liner (2004-07) ASSISTANT DIRECTOR 404-527-8785 paid in Atlanta, Georgia, and additional mailing Rebecca Ann Hoelting (2002-04) Jennifer R. Mason MEMBERSHIP offices. Advertising rate card will be furnished Marisa Anne Pagnattaro (2001-02) COMMUNICATIONS COORDINATOR 404-527-8777 upon request. Publishing of an advertisement does D. Scott Murray (2000-01) Ashley G. Stollar not imply endorsement of any product or service William Wall Sapp (1999-00) MEETINGS INFORMATION offered. POSTMASTER: Send address changes to Theodore H. Davis Jr. (1997-99) ADMINISTRATIVE ASSISTANT 404-527-8790 same address. L. Brett Lockwood (1995-97) Amber Rikard PRO BONO RESOURCE CENTER Stephanie B. Manis (1993-95) 404-527-8763 William L. Bost Jr. (1991-93) Charles R. Adams III (1989-91) PROFESSIONALISM L. Dale Owens (1987-89) 404-225-5040 Donna G. Barwick (1986-87) SECTIONS James C. Gaulden Jr. (1985-86) 404-527-8782 Jerry B. Blackstock (1984-85) The opinions expressed in the Georgia Bar TRANSITION INTO LAW PRACTICE Steven M. Collins (1982-84) Journal are those of the authors. The views 404-527-8704 Walter M. Grant (1979-82) expressed herein are not necessarily those of the Stephen E. Raville (1977-79) UNLICENSED PRACTICE OF LAW State Bar of Georgia, its Board of Governors or 404-527-8743 its Executive Committee. YOUNG LAWYERS DIVISION 404-527-8778
2 GEORGIA BAR JOURNAL GEORGIA BAR JOURNAL April 2021 | Volume 26 | Number 5
GBJ | The Features
26 30th Annual Bar Media & Judiciary Conference ASHLEY G. STOLLAR
32 Georgia Diversity Program Hosts Fall Learning Lab REBECCA CHRISTIAN SMITH
36 Honor Roll of Contributors: 2020 “And Justice for All” State Bar Campaign for Georgia Legal Services Program GETTYIMAGES.COM/KAMELEON007
USUFRUCTS VS. ESTATES FOR YEARS: WHY THE DIFFERENCE MATTERS IN THE The ERA OF COVID-19 | 18 Joseph B. Foltz and Legal Seth Pierce Johnson
2021 APRIL 3 62 GETTYIMAGES.COM/MAREKULIASZ
GBJ | In Every Issue 44 Office of the General Counsel 56 Attorney Wellness Working Through Adversity Sober Curious 5 Editor’s Letter Paula Frederick Megan Murren Rittle 6 From the President 58 Writing Matters 10 From the YLD President 50 Law Practice Management Managing Common The Amazing (and Amazingly 14 From the Executive Misused) Apostrophe Director Technology Mishaps: How to Avoid Announcing, “Your David Hricik and Karen J. Sneddon 38 Bench & Bar Honor, I’m NOT a Cat!” 46 Attorney Discipline Natalie R. Kelly 62 Professionalism Page 48 Legal Tech Tips Honestly 64 In Memoriam 52 Pro Bono Karlise Y. Grier 66 Book Review Make 2021 the Year of the 68 ICLE Unseen Veteran Mike Monahan 70 Notice 72 Classified Resources 54 Member Benefits 72 Advertisers Index Fastcase and Casemaker: The Peanut Butter & Jelly of Legal Research Sheila Baldwin
4 GEORGIA BAR JOURNAL EDITOR’S LETTER
The April Issue April 2021 Volume 26, Number 5
From the Executive GEORGIA BAR Director: Built to Last
Usufructs vs. Estates for Years: Why the Difference Matters in JOURNAL the Era of COVID-19 30th Annual Georgia Bar Media & Judiciary Conference
The Amazing (and Amazingly Misused) I was reflecting on the last few years of milestones that all build upon each other. Apostrophe my life recently when it struck me that I have I hope that everyone who has experienced been in my current job for five years this the kind of self-doubt that I experienced gets month. I love my job. I mean, really love it. I to land somewhere he or she feels a sense of don’t just say that because I know my super- belonging and fulfillment. And I hope those 2021 visor will read this. I am constantly learning of us who have found that can help encour- ANNUAL new things. I often feel like I actually get to age those doubters not to give up too quickly. MEETING help people. My coworkers are some of my So, enough about me for now. Let me Isle of Palms, South Carolina | June 10-13 favorite people on the planet. But before I tell you about some of the great content 421GBJ_cover.indd 1 4/13/2021 6:30:47 PM ON THE COVER began this job, I had begun to doubt there in this edition of the Georgia Bar Journal. PHOTO PROVIDED BY WILD DUNES RESORT would ever be a time where I would find my Our legal article, “Usufructs vs. Estates for place in the legal world. I started to second Years” by Joseph B. Foltz and Seth Pierce guess my decision to ever go to law school Johnson, explores the differences between in the first place. Based on the large number the two types of interest and why it matters, of former lawyers and law school graduates perhaps now more than ever. Our own Edi- working in other fields, and some lawyers I torial Board member—Roxann Smithers— know whose job satisfaction is not what I’d has a review of Lori B. Duff’s “If You Did gabar.org call good, I have to think this kind of doubt What I Asked in the First Place,” which is is a pretty common feeling. It took a number definitely being added to my summer read- VIEW ONLINE of things lining up perfectly for me to land ing list. Our YLD president speaks on the www.gabar.org/journal where I am: a run-in with my law school importance of living our lives honestly and professor, Mary Radford (also high on the authentically. Executive Director Damon FOLLOW list of my favorite people on the planet, by Elmore recognizes the legacy of Thomas Twitter @StateBarofGA the way), who happened to know of a job Kennedy Sampson & Tompkins LLP. And @GeorgiaYLD opening with Judge Wolk, who just gets me, Megan Rittle writes to remind us all of @iclega in all of my goofy, oversharing awkwardness. the importance of social well-being to our Facebook @statebarofgeorgia Finding my happy place career-wise inspired overall health and happiness. @GeorgiaYLD in me the confidence to open many other As always, I appreciate all of you, our @iclega doors as well, including this role as Editor- readers, and I wish you all much happiness YouTube in-Chief of the Georgia Bar Journal. It really and career fulfillment! l /StateBarofGeorgia has been a kind of catalyst for more career Flickr /statebarofgeorgia /yld Instagram @statebarofga @georgiayld KRISTIN POLAND LinkedIn Editor-in-Chief, Georgia Bar Journal /state-bar-of-georgia [email protected]
2021 APRIL 5 GBJ | From the President
Full Transparency: Let’s Start With the Basics
I began writing this article after we govern the practice of law in this state watching the live stream of the last five and require every lawyer who wants to hours of Sine Die in the Georgia Legisla- practice law in Georgia be a member. We ture last month. That was an experience! I are an arm of the Supreme Court of Geor- have always understood the importance of gia; the Supreme Court ultimately has the Legislature and its direct and powerful final say as to the rules promulgated by impact on my life as a citizen. However, the State Bar and the disciplinary actions after following along with the process as it taken against members of the Bar. The unfolded and watching the inner workings leadership of the Bar includes the Board over the 2021-22 regular session while serv- of Governors, which essentially serves as ing as president of the State Bar of Georgia, the “congress” of the State Bar. It is com- I now have a greater appreciation for the prised of members representing 50 spe- work that it does and how it not only im- cific judicial circuits, some of which have pacts me as a citizen, but our profession as multiple representatives dependent upon a whole. That’s the benefit of transparency. the total number of active Bar members DAWN M. JONES In that vein, I endeavor to give you, my in a particular circuit. The post number fellow Bar members, some insight on the associated with each post in any given cir- inner workings of our State Bar for greater cuit only serves to identify that particular President transparency. I will answer the questions I position. It has no purpose other than to State Bar of Georgia am often asked about the State Bar when identify the number of representatives in [email protected] speaking with local bar associations and the circuit. Board members serve two- working with fellow Bar members, judges year terms, with about half of the Board and members of the public. It dawned on me being up for election or re-election each then, watching these public servants handle election cycle, usually even-numbered the business of our state on behalf of our citi- posts one year and the odd-numbered zens, that many of our members, despite our posts the following year. efforts, don’t have a clear understanding of the organization and functions of the State Bar, why it is important to the practice of Board Meetings law in our state, and what its duties and re- Rule 1-303 states that “the Board of Gover- sponsibilities are to both the members of the nors shall hold at least three regular meet- organization as well as the public we serve. ings in each year ...” The Board currently gathers four times a year, with meetings in the fall, winter, spring and two in the Organizational Structure summer. The Fall and Spring Meetings The State Bar of Georgia is a mandatory are smaller and less likely to have associ- bar and a self-governing body, meaning ated CLE components or larger functions.
6 GEORGIA BAR JOURNAL The Midyear Meeting, held in January, is OFFICERS’ BLOCK the second largest meeting of the Bar. The largest meeting of the Bar is referred to as In this issue of the Georgia Bar Journal, we asked our State Bar of the Annual Meeting, and its format allows Georgia officers, “What fun fact have you discovered about yourself, for two Board meetings to be held over your family and/or your pet(s) that you were not aware of prior to the the course of two days, Friday and Satur- COVID-19 pandemic?” day. The Friday meeting is chaired by the outgoing president and includes a general members’ meeting where all Bar members DAWN M. JONES may participate; reports and updates on President work that has occurred throughout the What I have learned: My family’s virtual gatherings year; awards presentations; and end-of- are chaotic yet entertaining; my dog sleeps all day the-year addresses. The Saturday meeting and snores like a bear; grieving virtually is extremely is chaired by the president-elect who will difficult; my dishwasher is very important; in- be formally installed as president, along person State Bar meetings are a critical component with the other new officers, that evening. of my social life; and my ALEXA skills ROCK! This is the unofficial start of the new Bar year, which is officially defined as July 1 ELIZABETH L. FITE through June 30. The president-elect will President-Elect address the body prior to conducting the business of the Bar, including the election My dog, Betty White, does not like virtual mediations. of Executive Committee members, ad- For reasons known only to her, they are the only dressing any rule or bylaw changes, and virtual proceedings where she routinely barks. other items of note. Over the course of the 12 years that I have served in leadership of the State Bar—as a Board member, an Executive Committee member and as an officer— SARAH B. “SALLY” AKINS the question of why the Board meetings Treasurer are sometimes held out-of-state is often As much as I miss the non-stop travel and gatherings posed. I’d like to share that reasoning with of 2019 and before, I appreciate more deeply how you now, for additional transparency. much I treasure the one-on-one company of my In addition to Board of Governors husband Dale Akins. meetings, there are a significant number of other meetings and events put on by Bar committees, Bar sections, ICLE, and Bar- related organizations including the Geor- HON. J. ANTONIO TONY DELCAMPO gia Legal Services Program, the Chief Jus- “ ” Secretary tice’s Commission on Professionalism, the Institute for Continuing Judicial Education The funniest (most annoying?!) fact that I have and the like, that occur around and lead up discovered during the COVID-19 pandemic is that to each scheduled Board meeting. The to- my dog has a keen awareness of when I turn off my tal number of meetings that often occur at mute button during a Zoom call. She starts barking and makes those Zoom calls very lively! the same time, especially during the An- nual Meeting, requires several large meet- ing rooms in addition to sufficient space to accommodate the Board members, past DARRELL SUTTON presidents, Supreme Court justices, Court Immediate Past President of Appeals judges and guests who attend Board meetings, as well as associated din- That my children are remarkably and admirably ners and events. Atlanta, Savannah and Je- resilient. They encountered the upheaval of life as they knew it with a determination to adapt and kyll Island are currently the only locations overcome. This time, it was me who learned from able to provide enough space for four full them, not the other way around. days of multiple, simultaneous activities, including necessary ballrooms and hotel
2021 APRIL 7 rooms, while also offering attractive, high secretary, as it is the first officer position mittee description; contact committee quality venues to attendees and their fami- in line. Once an individual is elected as an members to find out more information, lies. Put simply, it comes down to the issue officer of the Bar, the usual progression is including how often the committee of space. In order to accommodate all of treasurer, president-elect and president. It meets and what duties and responsibili- our attendees and guests and their meet- is rare that someone comes in and chal- ties are involved; and then indicate your ing needs, we periodically host meetings lenges a seated officer position, but it does interest to President-Elect Fite. Keep in in neighboring states, which are within happen from time to time. And to clarify, mind that committee terms differ, so be driving distance for most people. We have once someone is elected president-elect, clear of the commitment you are mak- posted information regarding hosting they will be the next president, so their ing when offering to serve. It may also meetings outside the state, along with a name is not on the ballot. Most presidents help you to know that all committees are schedule of upcoming Board meetings and of the Bar were first elected to the Execu- supported by an Executive Committee minutes from previous meetings, on the tive Committee, and then to the secretary, liaison and one or more State Bar staff website at www.gabar.org/bog. treasurer and president-elect positions, in liaisons to provide assistance, support that order. After their year as president, and guidance. they serve as immediate past president, Many of you actively participate in one Bar Leadership with special duties and responsibilities, too. or more Bar Sections. Membership in and Pursuant to our bylaws, which are avail- Executive Committee meetings occur funding of section activities come from sec- able for review on our website at www. more frequently than Board meetings, tion dues that you pay separately and apart gabar.org/rules, when the Board is not usually every other month or more of- from your State Bar of Georgia license fees. in session, its powers to govern our Bar ten when needed and, like Board meet- Each of the 52 sections of the Bar has a par- lies with the Executive Committee of the ings, are scheduled by the president. ticular legal focus or practice area, elects its State Bar of Georgia. The Executive Com- Sometimes special called meetings are own leadership, and determines how often mittee consists of 14 members, including scheduled to address a particular issue or it meets and what work it will accomplish the president, immediate past president, concern that may come up in between the during the year. Many sections routinely president-elect, treasurer and secretary scheduled meetings. For example, during hold robust CLE events, like the General of the State Bar; the Young Lawyers Di- the 2020-21 Bar year, we have met as of- Practice & Trial Law Institute, the Family vision (YLD) president, immediate past ten as three times in one month due to Law Institute and the Real Property Law president and president-elect; and six special called meetings, in addition to Institute, all with multi-day educational members who also hold Board posts and more scheduled meetings than usual over offerings. These institutes, and all section essentially serve as members-at-large. the past Bar year. Executive Committee programs and events, are a great way to Officers of the State Bar, who run via meeting schedules and posted minutes connect and network with fellow practitio- statewide election, and the YLD officers can be found at www.gabar.org/ec. ners and judges while earning CLE credit. who are elected by the YLD member- The Bar offers a number of programs ship, all serve one-year terms on the Ex- that benefit you as a member, as well as ecutive Committee. The six non-officer State Bar Committees, the general public. A few examples in- members of the Executive Committee all Programs and Sections clude the Fee Arbitration program, which serve two-year terms and are elected by Your Bar is made up of approximately provides a convenient mechanism for the the Board during the Annual Meeting as 50 standing, special and program com- resolution of fee disputes between at- I referenced earlier. Nominations for of- mittees, with many of those appointing torneys and clients; the Clients’ Security ficer positions of the State Bar occur dur- subcommittees as well. Bar committees Fund, which fulfills, in part, the duty of ing the Midyear Meeting, and those who conduct much of the work of our Bar. the legal profession to keep faith with the are nominated and approved are included The make-up and membership of each public and serves to maintain the profes- in the annual State Bar of Georgia Elec- committee, including the number and sion’s collective reputation for honesty tion, managed by the Elections Commit- type of committee members who serve, and trustworthiness; the Client Assistance tee, that begins in late March and ends in is also outlined in our bylaws. The Program, which serves both the public late April. For more specific information president-elect of the State Bar, several and members of the Bar by providing in- about the process of State Bar elections, months before the presidential term be- formation and communication assistance; you can access the rules governing the gins, starts the detailed process of assign- and the Military Legal Assistance Pro- process at www.gabar.org/election_rules. ing committee membership. President- gram, a joint program between the State Most officer positions are uncontested Elect Elizabeth L. Fite has completed Bar and the Georgia Legal Services Pro- due to the nature and responsibilities re- the process, but there is always room to gram, which assists service members and quired of the positions and the time com- add more if you are interested in serv- veterans by connecting them to State Bar mitment required to serve in this more ing on a particular committee. If so, you members who are willing to provide free specialized, elected volunteer role. The are strongly encouraged to go to www. or reduced-fee legal services. There are position that is usually contested is that of gabar.org/committees; read the com- many other Bar programs offering a wide
8 GEORGIA BAR JOURNAL DID YOU KNOW?
One of the largest circuits in the Board of Governors is the Out-of- State Circuit, weighing in at more Board Meetings aren’t just for than 6,000 members who reside Board of Governors members. outside Georgia. Bar members are welcomed and encouraged to attend any Board Meeting; voting privileges are only available for the general member- The Board of Governors is made up ship at the General Members’ Meet- of approximately 150 circuits with ing held during the Annual Meeting. approximately 152 members rep- A list of upcoming meetings can be resenting every Bar member in our found at www.gabar.org/bog. state and beyond.
variety of services geared toward support- Executive Director Damon Elmore effec- back and input, so please take the time ing you in your practice and the profes- tively serves as CEO of Bar staff. The Of- to review the notices, offer comments sion as a whole, all of which are managed fice of the General Counsel, led by Gen- and share those notices with your work by Bar staff. You can find a full list of Bar eral Counsel Paula Frederick, handles all colleagues and local bar members to en- programs at www.gabar.org/programs. Bar grievances and disciplinary actions, courage them to do the same. and regularly provides legal advice to the During the Spring Meeting every Executive Committee and Board, as well year, the Board determines the license fee The Bar Center, Bar Staff as providing ethics advice to members amount for the next Bar year along with and Satellite Offices who reach out for guidance. For a listing any related Bar assessments that may also The Bar Center, located in downtown of the departments and a staff directory, need to be established, like the Clients’ Atlanta, houses Bar operations and serves visit www.gabar.org/staff. Security Fund assessment, just in time as headquarters for the organization. The for your Bar license fee notice to be sent building was purchased in 1997 and paid to you. At the Annual Meeting, the final off in 2011. Owning the building outright The Bar’s Relevance budget for the next Bar year is voted on eliminates the high cost of leasing space to Now that we have talked about Bar lead- by the Board, which includes funding for conduct Bar business. We also maintain ership, committees, sections, programs of various Bar programs, committees and satellite offices in Tifton and Savannah to the Bar, and staff, let us briefly talk about other work of our Bar. serve our members in those areas. Each how the Bar impacts you and your practice. I hope this information and increased of the three Bar offices offer meeting and The Supreme Court of Georgia pro- transparency have provided you with a conference space, and audio-visual sup- mulgates the rules for the organization broader insight as to the important work port for those members of the Bar who and governance of the State Bar of Geor- we do as a Bar and its relevance to you, may not have the capacity or technology to gia, but did you know the State Bar of- your practice and your clients. I hope to meet or conduct business virtually, an offer ten plays a role before the Court changes have motivated you to take advantage of particularly helpful to members pre-pan- those rules? the opportunities to serve on Bar commit- demic. Although COVID-19 has caused us Typically, the Office of the General tees, in Bar sections and with Bar programs. to close all three offices and required our Counsel drafts the proposed rules and I hope to have encouraged you, my fellow staff to work remotely, we look forward to amendments and shares them with rele- Bar members, to seek elected leadership moving back into our offices and opening vant committees. The proposed changes positions within our Bar on the Board of them up when it is safe to do so and under are presented to the Executive Commit- Governors or on the Executive Commit- the appropriate safety protocols, so that we tee for input and then to the Board of tee. Your input and leadership are neces- can once again offer the numerous ameni- Governors. If the Board of Governors sary for our Bar to more forward. We ties that provide opportunities for learning approves the rule or amendment, the Bar must work together to make our Bar and and conducting business. posts a notice regarding the proposal on our profession even better. With more Currently, there are 106 Bar staff the State Bar of Georgia website. The volunteers like you, we can continue to working to serve you in our three offices. State Bar welcomes all comments, feed- #SustainASoundBar well into the future. l
2021 APRIL 9 GBJ | From the YLD President
The Veracity of Our Pursuits: “Reality” Should Be Authentic, Our Voices Matter and the Public is Listening
We find ourselves in an interesting profession and ruining our own reputa- time in our history when nearly a quar- tions. In a sense, this is why the present, ter of the population lives in the physical physical world is known as “reality.” world, a second exists almost exclusively Truth, or striving for facts, is what our in the virtual world, a third lives in the entire evidentiary system is based upon. past and most of the remaining reside As such, truthfulness should be at the somewhere in the future. That leaves very forefront of how we as attorneys conduct few who are living in the now or, in other ourselves in everything we do, because words, very few Americans find them- our actions reflect our profession and the selves in “reality.” For lawyers, however, institutions we represent. In fact, our As- living in the moment and being mindful pirational Statement on Professionalism is something we strive for, or it is at least calls on us as lawyers: something we implore jurors to do as the trier of fact at trials. “(g) To preserve the dignity and the BERT HUMMEL Almost any attorney, when addressing integrity of our profession by my con- a jury in opening and closing statements, duct. The dignity and the integrity of will ask jurors to be mindful of the facts our profession is an inheritance that YLD President presented, to listen to the witnesses’ tes- must be maintained by each successive State Bar of Georgia timony and, when deciding guilt or liabil- generation of lawyers.” [email protected] ity, to ensure that external facts, precon- ceived notions and bias do not factor into Without truth and veracity—or in the their decision. I always like to ask that absence of a pursuit of same—we create an they not leave their common sense at the opening for stones to be cast against the courtroom door when they step into the rule of law, our system of justice and our jury box. The point is that, in trial, we ask profession by those who take notice of our jurors to live in the now and be mindful shortcomings. The importance of the “rule of the space they are in. Why then would of law” is explored masterfully by President our profession not take the same advice? Dawn M. Jones in the February 2021 edi- The answer is complex and, to a de- tion of the Georgia Bar Journal, so I will not gree, irrelevant. What is relevant is that spend time dissecting its importance here. in order to be mindful of the now and cre- Numerous Georgia Rules of Profession- ate an authentic “reality,” we must respect al Conduct address dishonest statements or and honor the veracity of the statements arguments to the Court, but so too is it im- we make, the positions we take and the portant to maintain honesty in dishonesty arguments we construct. Otherwise, we or fraud in any professional capacity. As are misleading the public, damaging the Rule 8.4 provides:
10 GEORGIA BAR JOURNAL OFFICERS’ BLOCK In this issue of the Georgia Bar Journal, we asked our YLD officers, “What fun fact have you discovered about yourself, your family and/or your pet(s) that you were not aware of prior to the COVID-19 pandemic?” “RULE 8.4 MISCONDUCT (a) It shall be a violation of the Geor- gia Rules of Professional Conduct for a lawyer to: ... BERT HUMMEL | YLD President (4) engage in professional conduct My eldest daughter, Mo, has shown us that she is not only involving dishonesty, fraud, deceit smart and strong, but also very brave during this pandemic. or misrepresentation;” She’ll be three in June, but she wakes up with such a pur- pose and thirst for life that it has been a joy to watch her develop over the past year. She’s a great big sister to Harper, “It is important for lawyers to be hon- who already has a great sense of wonder, just like Mo. est and behave lawfully,” writes Christine ELISSA B. HAYNES | YLD President-Elect A. Rodriguez, for the Above the Law blog. “We cannot do our jobs effectively if While admittedly not what most people would describe as we lie, cheat, and steal while also fighting “fun,” I would say I am much savvier at internet marketing and virtual business development than I ever anticipated. for clients, whether victims or accused. This “new normal” has allowed me to connect more with cli- The people that lawyers represent often ents that I would have struggled to find time to meet with. entrust us with sensitive information and life-altering circumstances, usually during RON DANIELS | YLD Treasurer the worst times of their lives. If we are not honest and lawful in all our dealings, No one warns you about the joys of parenting in a pan- demic, including (without limitation) the deadly nature both personal and professional, we betray of small plastic balls when they meet the fifth metatar- their trust in us. It makes sense that the sal of a full-grown man. character and fitness review that you must go through to get admitted to practice in most states is rigorous and examines ev- BRITTANIE D. BROWNING | YLD Secretary ery aspect of both your personal and pro- Like everyone, I learned how adaptable we can be using fessional life. I recently went through this a remote platform for work. That same resiliency trans- process to get admitted in North Carolina. lated to spending time with friends and family. While … They wanted to be sure that I was hon- I discovered new and creative recipes, socially distant est, that I would not break the law, and potlucks allowed for connection and recipe sharing. that I would represent their people hon- estly and zealously. That’s what we sign WILL DAVIS | YLD Immediate Past President on for when we take the oath of office as I’ve learned that DoorDash and InstaCart can be very lawyers.” expensive when you use quarantine as an excuse to have During the 1950s, a U.S. senator from all of your food delivered. I’m working to get better on Wisconsin, Joseph McCarthy, began ac- masking up and actually going to the grocery store. cusing various leaders in federal govern- ment and the military of being commu- nists, or at least communist sympathizers. ASHLEY AKINS | YLD Newsletter Co-Editor His accusations were sometimes rooted I’ve learned that I do not like working from home. I in fact; however, the entire country was actually enjoy going to my office each day. Having a clear gripped by a period of finger pointing division between work and home works best for me. known as “the Red Scare” and generally referred to as McCarthyism. Sen. McCar- thy was an attorney, and his attempts to expose individuals as being communist LAKEISHA R. RANDALL | YLD Newsletter Co-Editor were motivated by political ambition, My nerdy secret is that I really enjoy listening to through which he gained national atten- audiobooks of classic authors reading them. For tion as a leader in America’s global chess example, “The Bluest Eye”" is my favorite book. Hearing match against the Soviet Union during the late Toni Morrison read it was wondrous! Also, my the Cold War. zombie apocalypse list includes Ben & Jerry’s almond milk ice cream and ingredients to bake cookies.
2021 APRIL 11 I challenge each of you to hold our fellow attorneys accountable when they do not seek truthfulness in their pursuits. Use your own voice to drown out the few attorneys who choose not to honor our professional oaths and aspirational goals, and who jeopardize our systems of justice for future generations.
The problem with Sen. McCarthy’s The McCarthy hearings are only one fairly the lawyer’s (and in certain circum- investigations and accusations was that example of lawyers abandoning the truth stances the client’s) intentions. Even if the they were not entirely truthful and, in for personal and professional gain or na- lawyer can argue that statements were ac- some instances, downright devoid of tional notoriety. However, it highlights curate in the terms described above, the legitimacy. Despite a lack of evidence the power of an attorney’s statements, lawyer has a further obligation to ensure and proof to sustain his indictments, his especially from one who has risen to the that the representation of the client is fair theatrics took advantage of Americans’ level of the U.S. Senate. The public will both to the client and to others, including fears of the Soviet Union by creating a trust us as long as we prove trustworthy courts and opponents.” boogeyman that brought communism to in our pursuits. When we fail or come While these definitions are almost ex- America’s doorstep. The hysteria grew, up short, then the public ought not trust pected in our representations of clients and so with it a general distrust of every us, and when the public does not trust and the arguments we make on their be- man and every woman. It reached a fever us, then our rule of law and system of half, so too should we maintain this au- pitch when McCarthy turned his sights justice suffers. We are a country built thenticity, truthfulness and professional- on the Army and insinuated that com- on laws, and as officers of the courts, ism in all of our pursuits. When we, as munists had infiltrated a branch of the we must realize that all of our pursuits attorneys, lend our voices, our platforms U.S. military. reflect on the profession as a whole. We and our expertise to a cause, our audi- During a Senate Government Opera- must not fail in our pursuit of truthful- ence expects that our words are truth- tions Committee hearing, which McCar- ness, justice and professionalism, be- ful, our goals are earnest, our pursuits thy chaired, Army Special Counsel Joseph cause otherwise we are compromising honest. When we, as attorneys, betray Welch was questioned about whether the our entire justice system. that trust to our audience and communi- Army was “soft” on communism. Dur- Wayne State University Law School ties, the profession as a whole suffers as ing the weeklong hearing, McCarthy, on Professor Peter J. Henning, in his article we are seen as less truthful in the eyes of live television, lambasted the Army and “Lawyers, Truth and Honesty in Repre- our future clients, jurors and peers. Nat- questioned Welch about a young associ- senting Clients” for the Notre Dame Journal urally, if our profession is questioned, ate in Welch’s office possibly working as of Law, Ethics & Public Policy, contends, “An the inquisition then turns to the rule of an extension of the Communist Party. honest lawyer is one who can be trusted. law itself. Welch had enough of the insincerity, For the purposes of analyzing the rules I challenge each of you to hold our fel- empty rhetoric and baseless accusations, that govern a lawyer’s conduct, I define low attorneys accountable when they do inquiring, “Until this moment, Senator, I honesty to mean that an attorney’s expres- not seek truthfulness in their pursuits. think I never really gauged your cruelty or sions and conduct are both accurate and au- Use your own voice to drown out the few your recklessness. Have you no sense of thentic. An accurate statement is one that is attorneys who choose not to honor our decency, sir, at long last?” Finally, the end truthful and does not intentionally deceive professional oaths and aspirational goals, of McCarthyism and an attack on decency or mislead another person. … An authen- and who jeopardize our systems of justice had arrived. tic expression is one that comprehends for future generations. l
12 GEORGIA BAR JOURNAL Ethics dilemma?
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Built to Last
The Georgia Bar Journal is remarkable the findings here from time to time. for so many reasons. During my time in This edition recognizes the enduring Indiana serving as general counsel for an legacy of Thomas Kennedy Sampson & international industrial parts manufac- Tompkins LLP. turer, it provided for me the same ben- During my career, I have become fa- efits it does for most of our members. miliar with those firms in continual ex- It highlights the evolution or change in istence since the late 1800s. Many friends certain legal theories and procedure. It are part of firms that have been built allows us to keep up to date with our around generations of family members colleagues on the move. It provides a admitted to practice and working side- DAMON ELMORE recap of important Board of Gover- by-side with grandfathers, parents, sons, nors, section and committee meetings. daughters or other relatives. Places like Executive Director On top of all that, standing features on Summerville, Rome, Statesboro and Sa- State Bar of Georgia technology, professionalism, wellness, vannah serve as the base of those legacy [email protected] law practice management and even the firms. Putting those notable conditions disciplinary summaries are essential to together, with overcoming challenge the enhancement and refinement of our and adversity makes the story of Thomas practice. It remains a solid way to stay Kennedy all the more remarkable. Thanks connected and understand the value of to Shyril Beck for her contributions to our membership. this highlight. She shared the following. I will also admit that during that time In 1971, John L. Kennedy, a More- I became fond of the “Hidden Legal Fig- house College and Harvard Law grad, ures” feature that has appeared in more departed Alston Miller & Gaines (now than a dozen editions of the Journal. Same Alston & Bird) after two years as the first as with the feature on the old Georgia Black associate hired at a major Georgia courthouses, it always provides an op- law firm. Kennedy recruited Reuben T. portunity to learn and appreciate how Bussey Jr. and Thomas G. Sampson Sr., the organization, its membership and the who had graduated from the University profession have grown. of North Carolina law school that June, So, as promised, and in keeping with and with great vision and incorrigible that spirit, I have taken the chance to optimism, they built a preeminent and research similar stories and will share highly respected law firm. Launching
14 GEORGIA BAR JOURNAL PHOTO PROVIDED BY THOMAS KENNEDY SAMPSON & TOMPKINS LLP BY THOMAS KENNEDY PHOTO PROVIDED a law firm is one thing. Longevity is (Left to right) Jeffrey E. Tompkins, Thomas G. Sampson and Thomas G. “Woody” Sampson II quite another, especially at a time when there were only a handful of African American law firms around to emu- late. This year, the firm now known as Thomas Kennedy Sampson & Tompkins LLP (Thomas Kennedy) celebrates its 50th anniversary. Thomas Kennedy has a culture that espouses the highest level of excellence and professionalism and empowers its attorneys to be warriors within their community. Today, the firm continues to build upon its legacy of excellence, community service and mentorship. The firm is immensely proud of the Thomas Kennedy has a culture that many former lawyers who have graced espouses the highest level of excellence and its halls throughout the years. Notably, 10 former Thomas Kennedy lawyers professionalism and empowers its attorneys have ascended to the Superior, State and to be warriors within their community. Today, Magistrate Courts within the state of Georgia. Also among the firm’s alumni the firm continues to build upon its legacy of are Patrise M. Perkins-Hooker, the first excellence, community service and mentorship. African American president of the State Bar of Georgia, and Paul L. Howard Jr., the first African American district attor- ney in Georgia. Thomas Kennedy has a lot to celebrate these days as the year 2021 marks a major milestone of 50 years of excellence, in- tegrity and significant accomplishments. Today, the firm represents several For-
2021 APRIL 15 A retrospective look at Thomas Kennedy’s undertakings for the past 50 years reflects nothing less than a laudatory legacy of excellence.
tune 100 and Fortune 500 companies, I would get to do so fairly quickly. I also including the Metro Atlanta Rapid Tran- knew I would have great mentors, like sit Authority, which the firm has repre- Tom Sampson, the best trial lawyer any- sented since the early 1970s. Addition- one will ever see, and our former partners, ally, the firm represents individual clients Donald P. Edwards and Judge Myra Hud- who seek justice for catastrophic injury, son Dixon, who would help me learn to try wrongful death and medical malpractice. cases,” said Tompkins. “They showed great Since 1994, Thomas Kennedy has been confidence in me early on. I argued a case under the leadership of Managing Partner before the Court of Appeals of Georgia Thomas “Tom” G. Sampson Sr., a Dur- less than a year out of law school. My cli- Always stay ham, North Carolina, native. With a solid ent was General Motors. I could not have family foundation that is steeped in law, it asked for more,” said Tompkins, who ob- connected. was inevitable for him to follow suit. His viously learned well. He received the Gate father, the late Daniel George Sampson, City Bar Association’s A.T. Walden Out- was a law professor and former dean at standing Lawyer Award in 2011. @statebarofgeorgia North Carolina Central University. His Thomas G. “Woody” Sampson II has cousin, R.E. Thomas Jr. (the “Thomas” in embraced and expanded the legacy of his @GeorgiaYLD the firm’s name), practiced law in Atlanta grandfather and father. With 25 years of @iclega for more than 50 years and was a charter experience, carving a niche for himself member of the Gate City Bar Association. representing plaintiffs in the area of civil “My family has always taken note of rights in nearly 2,000 cases, his passion the many injustices in the world, espe- lies in assisting those whose civil rights cially as they relate to people of African have been violated. In addition to his trial descent,” states Sampson Sr. “It was—and experience, he has served as general coun- remains—paramount to build a firm that sel to the Fulton County Board of Ethics would serve the needs of the people with for the past 20 years. equity, fairness and excellence. As we cel- A University of Georgia Law grad, ebrate and reflect upon 50 years in this Woody Sampson ensures the firm re- profession, it is rewarding to see that we mains committed to mentoring the next have been able to remain true to the ini- generation of African American lawyers. tial vision, and I am particularly proud During his tenure as president of the Gate that Jeff Tompkins and my son, Woody City Bar Association, he started a summer Sampson, will continue the legacy.” intern program for law students, which is A Phi Beta Kappa graduate of More- now in its 13th year and growing. house, Jeff Tompkins received his law A retrospective look at Thomas Ken- degree from Emory University, where he nedy’s undertakings for the past 50 years served as director-in-chief of the Moot reflects nothing less than a laudatory Court Society. Tompkins became the legacy of excellence. The firm looks for- firm’s first summer associate in 1986 and ward to the continued pursuit of justice was offered a job at the end of that sum- for its clients. mer. Thomas Kennedy is the only place Is your firm celebrating a milestone he has ever worked. “After having such 50 years or greater or designated as a a wonderful experience as a summer as- family firm? I would love to hear your sociate, I knew this was the place for me,” story. Share the details with me at he said. “I wanted to try cases and I knew [email protected]. l
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GBJ | The Legal
Usufructs vs. Estates for Years: Why the Difference Matters in the Era of COVID-19 The differences between usufructs and estates for years carry inherent significance for the parties to the agreements, as well as third parties. This article explores why, even after the coronavirus threat has receded, practitioners should pay attention to the differences between a usufruct and an estate for years. BY JOSEPH B. FOLTZ AND SETH PIERCE JOHNSON
In Georgia, the leasing of property referring to the parties to an agreement creates either a “usufruct” or an “estate conveying an estate for years. for years.” The differences between the two sig- nificantly affect the rights and duties Understanding the Usufruct of the parties to the agreement. As the and the Estate for Years coronavirus pandemic enters its second According to O.C.G.A. § 44-7-1(a), a year, many workers still do not know landlord-tenant relationship is created when they will return to their offices, “when the owner of real estate grants to and many struggling businesses do not another person ... the right simply to pos- know whether they will survive. In these sess and enjoy the use of such real estate uncertain times, one thing that does seem either for a fixed time or at the will of predictable is that many real estate leases the grantor.”1 This conveyance is known entered into before the pandemic began as a usufruct, and no estate passes from will be broken before it ends. the landlord to the tenant.2 A usufruct “is Parties seeking to terminate an estate not insurable, is not subject to levy and for years, due to COVID-19 hardships, sale, and ... may not be conveyed without will probably not fare well in court. In the landlord’s consent.”3 As referenced in the case of usufructs, breaking a lease due Georgia case law, a “usufruct is sometimes to the virus is more likely justifiable. This referred to as a license to use” because the article explores why, even after the coro- conveyance does not pass a real property navirus threat has receded, practitioners interest to the tenant.4 should pay attention to the differences In contrast, an estate for years passes as between a usufruct and an estate for years. realty under O.C.G.A. § 44-6-100(b). It is For clarity, this article will use the limited to a fixed period or one that may terms “landlord” and “tenant” to refer to be “fixed and certain,” and may convey any the parties to an agreement conveying a number of years “within the rule against usufruct. The terms “grantor,” “grantee,” perpetuities.”5 Due to Georgia’s Uniform 6 GETTYIMAGES.COM/KAMELEON007 “lessor” and “lessee” will be used when Statutory Rule Against Perpetuities, an
2021 APRIL 19 In simpler terms, Georgia law treats the lessee of an estate for years as the owner, whereas the usufruct’s tenant is not. With this ownership distinction comes several consequences. First, con- Aside from the statutory differences, sider the duty to repair. When a usufruct is conveyed, the landlord must repair the there are several key distinctions to the premises and is liable for all substantial characterizations of usufructs and estates improvements thereon.11 If the lease con- veys an estate for years, the roles shift and for years. the grantee must make repairs and pay the expenses necessary for the “preservation and protection of the property.”12 The key expenses, for many grantees, are taxes and liens levied on the property. Generally, all real property in Georgia, including the leasehold, is subject to taxa- tion.13 A mere license to operate or use estate for years can be any number of a designated space is not considered a “fixed and certain” periods under the law. taxable interest.14 Due to the distinctions As explained by the Court of Appeals discussed above, an estate for years is a of Georgia: taxable estate.15 A usufruct, however, is a mere license to use. As a result, because “[A]n estate for years is essentially a the fee estate in the property remains lease by which one person acquires a with the landlord and is undisturbed right to use real estate for a finite period when a usufruct is conveyed, the tenant ‘in as absolute a manner as may be done is not taxed for the use and enjoyment of with a greater estate,’ so long as neither the usufruct.16 Similar to taxes, a materi- the property nor the person entitled to alman’s lien does not attach to usufructs, the reversionary interest in it is injured but does attach to property interests in by that use. A usufruct, by contrast, is realty, like estates for years.17 created when the owner of real estate grants to another person the right to use and enjoy the property for a fixed Does My Agreement Convey a time or at the will of the grantor, as in Usufruct or an Estate for Years? a landlord-tenant relationship, but no When determining whether an agree- property interest arises in the grantee.”7 ment conveys a usufruct or an estate for years, Georgia courts evaluate each Aside from the statutory differences, case by its own facts and circumstanc- there are several key distinctions to the es.18 Courts administer a balancing test, characterizations of usufructs and estates weighing several factors to determine the for years. Chief among these is the level parties’ intent. This balancing test can of rights and privileges conveyed to the be complicated because agreements may tenant or grantee. Usufructs maintain the have provisions indicative of an estate landlord-tenant relationship, “with privi- for years, while other provisions impose leges granted to tenants holding less in- restrictions that are more typical of the terest in real estate than estate for years.”8 grant of a usufruct.19 In many leases, there In other words, the usufruct grants the is language that is “in some respects in- tenant the right to use and enjoy the dicative of a usufruct but in other ways property, but prevents alterations to the characteristic of an estate for years.”20 substance of the property conveyed.9 Georgia courts first assess the parties’ The estate for years, however, places the intent by looking at the agreement as a grantee or lessee in “absolute control” of whole and considering its general charac- the estate, with “unqualified possession of teristics.21 They then analyze the specific the premises.”10 provisions of the lease, focusing on key
20 GEORGIA BAR JOURNAL factors such as: (1) the express intent of stipulation to that effect.27 As discussed by Length of the Term Conveyed the parties; (2) the length of the term con- the Court of Appeals of Georgia in 2012, One such remaining provision is the veyed; and (3) the right to control under any decision made by the courts “may be length of the term conveyed. The statu- the agreement.22 mooted by the parties’ agreements.”28 tory tipping point to distinguish between Nevertheless, the parties’ intent has its an estate for years and a usufruct is five Express Intent of the Parties limitations. The Supreme Court of Geor- years. If the conveyance is for less time, In Georgia, the intent of the instrument gia has held that third persons who are O.C.G.A. § 44-7-1(b) presumes only the itself is often considered the cardinal not parties to an agreement may not be right to possess and enjoy is conveyed, rule.23 When the parties stipulate to a bound by the stipulation that the agree- “and to give only the usufruct unless particular conveyance, that language is ment conveys a usufruct or an estate for the contrary is agreed upon by the par- usually indicative of whether a usufruct years.29 In addition, the courts may treat ties to the contract and is so stated in the or an estate for years is conveyed.24 When the parties’ intent differently for private contract.”34 As a result, under Georgia clauses such as “Tenant’s interest in the and public agreements.30 law, there is a rebuttable presumption Leased Premises is a usufruct, not subject In Macon-Bibb County Board of Tax As- that an agreement for less than five years to levy and sale, and not assignable by sessors v. Atlantic Southeast Airlines, Inc., conveys a usufruct, while an agreement Tenant except as expressly set forth here- the Supreme Court of Georgia had to for more than five years conveys an estate in,” or “This Lease creates only the rela- decide whether ad valorem taxes were for years.35 tionship of landlord and tenant between due from the defendant.31 The sublease Georgia courts have grappled with this Landlord and Tenant, and no estate in at issue between Atlantic Southeast Air- rebuttable presumption on numerous oc- land shall pass out of Landlord,” the char- lines and the Macon-Bibb County Indus- casions. In Warehouses, Inc. v. Wetherbee, acterization of the agreement seems clear. trial Authority was for a 30-year term, the Supreme Court of Georgia noted that The Supreme Court of Georgia has but it expressly stated the interest was though the five-year presumption exists, emphasized the role intention plays in its “a usufruct and not an estate for years.” “there is nothing to prevent a lease for balancing. If parties intend to convey only The Court stated that “[i]f the pres- five years or more from being narrowed a usufruct, then they can make that in- ent case were between private parties, by the terms of the contract itself so as tent clear.25 For example, in Allright Park- such express statements of intent would to convey a usufruct only.”36 Rather than ing of Georgia v. Joint City-County Board of control.”32 However, because the case in- serve as a bright-line rule, the Court not- Tax Assessors, the agreement conveying a volved the subleasing of land between a ed the five-year mark merely necessitates parking lot was for a fixed, 35-year term private party and a municipal authority, the balancing act to determine whether and contained several provisions consis- the Court acknowledged that intention the agreement, as a whole, demonstrates tent with an estate for years.26 Yet, the alone was not enough. Heavier scrutiny the intent “to negative either by express Court concluded that the conveyance was of the remaining provisions of the sub- terms or by necessary implication” the a mere usufruct, due in part to the parties’ lease was required.33 five-year presumption.37 In other words,
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2021 APRIL 21 courts view the five-year presumption in Among other things, Diversified could the following scenarios may be illustrative light of the rest of the agreement, such not sell the property, nor permit a lien or of potential pitfalls. that “[t]he key inquiry” remains whether security interest thereon.51 Likewise, the the other restrictions in an agreement ne- city recreation authority alone retained Tax Consequences gate the presumption.38 the right to impose easements, licenses The different tax consequences that re- More recent cases have been more ex- and “other rights or privileges in the na- sult from creating either a usufruct or plicit in limiting the five-year presump- ture of easements” on the property, while an estate for years cannot be overstated. tion. In 2004, the Court of Appeals of Diversified was required to act as the au- Consider the 2015 decision of the Supe- Georgia, in Diversified Golf, LLC v. Hart thority’s agent for the development of the rior Court of Fulton County in In re Air- County Board of Tax Assessors, explained proposed golf course.52 port Rental Car Facility Tax Appeals.59 The that whether a conveyance is character- In Southern Airways Co. v. DeKalb Coun- city of Atlanta, which owns and operates ized as a usufruct or an estate for years ty, the Supreme Court of Georgia recog- Hartsfield-Jackson Atlanta International depends more on the intention of the nized that if the parties intended for the Airport, built a consolidated rental car parties, and “this is true without regard tenant to enjoy only the right to posses- facility on land located in the city of to the length of the term.”39 The appellate sion and use of the leased premises, rather College Park.60 When Fulton County court came to the same conclusion eight than any interest in the leased premises, discovered that the city was exempt years later, in Pinnacle Properties V, LLC v. then the lease should be construed as from taxation on the airport facilities, it Mainline Supply of Atlanta, LLC,40 and again a usufruct with a landlord-tenant re- created seven separate real estate parcels in 2018, in City of College Park v. Paradies- lationship, despite a term longer than purporting to represent different rental Atlanta, LLC.41 Consequently, Georgia’s five years.53 Of particular note, DeKalb car company operators’ interests within appellate courts have made clear the five- County, as lessor, reserved its rights to the facility.61 As a result, the operators year presumption remains rebuttable and “control, improvement, inspection, and were assessed taxes for each parcel from the intent of the parties controls. supervision of the premises, with the 2010 through 2015. right of others to use the facilities,” when In challenging the tax assessment im- Right to Control it conveyed land for an airport in a 15- posed upon the individual parcels, the The other major factor to consider is the year lease.54 The Court concluded the rental car company operators pleaded with right to control the use of the premises. prima facie case for an estate for years the Court to consider they were granted a Georgia’s appellate courts have noted was negated by this strong reservation usufruct, rather than an estate for years.62 that control is one factor that may rebut of control in the landlord.55 As has been Using the analysis set forth in the preced- the five-year presumption.42 It is impor- demonstrated in the years since Southern ing sections, the Superior Court of Fulton tant to remember that even if an agree- Airways, Georgia courts often analyze the County agreed that the operators were ment would ordinarily create an estate level “of dominion or control” in distin- granted only a statutory usufruct.63 for years, it is not immediately “reduced guishing one case from another.”56 The upshot for the operators was to a mere usufruct because certain limita- Yet, the reservation of some control significant. Because their interests were tions are put upon its use.”43 To the con- by the landlord-grantor does not auto- merely usufructs, the Court ruled the trary, the interest may be limited without matically overcome the presumption of operators’ interests to be non-taxable, necessarily changing the character of the an estate for years. For instance, in State and granted the recovery of litigation estate,44 such that an estate for years may v. Davison, even though a 99-year lease costs and reasonable attorneys’ fees.64 be encumbered without being reduced to contained certain covenants preventing Accordingly, the operators avoided ap- a usufruct.45 the tenant-lessee from having absolute proximately $3.8 million in tax liability To distill the role of control as a factor, control over the premises, the convey- and recovered approximately $120,000 in the Georgia courts evaluate whether the ance was not reduced to a mere usufruct.57 attorneys’ fees.65 tenant-lessee takes a “circumscribed and Utilizing the full force of the balancing Last year, in Chatham County Board of limited use” of the property,46 the restric- test, the Supreme Court of Georgia de- Assessors v. Jay Lalaji, Inc., Airport Hotels, tions are “so pervasive as to be fundamen- termined that “such restrictions do not ... the Court of Appeals of Georgia reached tally inconsistent with ownership”47 or outweigh the other features of the con- a similar decision.66 In 2006, the Savan- the owner retains “dominion and control” tract, so as to reduce the character of the nah Airport Commission entered into a over the property.48 right acquired ... from that of a grantee of 50-year lease agreement with Jay Lalaji, Take, for example, Diversified Golf, an estate for years to a mere usufruct.”58 to construct and operate a hotel on land LLC v. Hart County Board of Tax Assessors.49 owned by the Commission.67 At the time, There, the Georgia Court of Appeals rec- the Chatham County Board of Assessors ognized that the lease provisions “circum- Why Concern Myself or My “assigned the property an identification scribed and limited” Diversified’s use of Clients with the Distinction? number and attempted to assess ad va- the conveyed real estate to the point only For practitioners who intend to create a lorem taxes against Jay Lalaji.” It argued a usufruct could have been conveyed.50 usufruct or to convey an estate for years, the lease created a taxable estate for years.
22 GEORGIA BAR JOURNAL If the Board was correct, Jay Lalaji would pecially if it is being foreclosed upon. For be assessed property taxes for the entire example, a lender may want to reconsider Joseph B. Foltz is a partner 50-year term of the lease. whether certain collateral value in a lease in the Atlanta office of Womble Bond Dickinson Jay Lalaji pled that it was granted a is appropriate if the rights to the collateral (US) LLP. He received his B.A. non-taxable usufruct in the property, convey only a “mere usufruct.” degree from Yale University rather than a taxable estate for years, Although this distinction may matter in 1975 and his J.D. degree from and therefore should not be assessed less if the lease covers an office or other Vanderbilt Law School in 1980. taxes during the lease term.68 The result? “space,” the distinction could be signifi- The Court of Appeals of Georgia agreed, cant if a lender has ground lease or lease Seth Pierce Johnson is an holding that “[b]ecause Jay Lalaji has collateral on an outparcel that the lender associate in the Atlanta only a circumscribed interest and lim- believes conveys a leasehold estate main- office of Womble Bond ited use of the premises, the Agreement taining certain foreclosure rights. As stat- Dickinson (US) LLP. He received his B.A. degree from amounts to a usufruct.”69 This saved Jay ed above, stipulations between the parties Duke University in 2016 and his J.D. Lalaji from paying 50 years of ad valorem in the lease document may not be bind- degree from the University of Georgia tax assessments. ing upon a third party, and Georgia courts School of Law in 2019. will view the lease holistically. As an un- Ground Leasing derwriting matter, lenders and borrowers Practitioners typically assume that ground should pay close attention to the value of leases in Georgia convey an estate for the collateral described in the lease and Endnotes years. The length of the term is usually whether foreclosure rights cover a usu- 1. O.C.G.A. § 44-7-1(a). more than five years, and ground lessees fruct or an estate for years. 2. Id. often possess ample dominion and con- 3. John Taylor, A Loss for the Tax trol over the property to construct cer- Pandemics Man: Usufructs in Georgia, Making Real tain improvements thereon. However, Because a usufruct grants a mere right to Estate Work Blog (Aug. 14, 2018)
2021 APRIL 23 taxes on the land, whereas a tenant is 26. Allright Parking, 244 Ga. at 385-86, 260 45. Jekyll Dev. Assocs., L.P. v. Glynn Cty. not, where there is a mere tenancy”). S.E.2d at 320. Bd. of Tax Assessors, 240 Ga. App. 273, 16. Allright Parking, 244 Ga. at 385, 260 27. Id. at 385-87, 260 S.E.2d at 320-21. 275, 523 S.E.2d 370, 372 (1999). S.E.2d at 320 (citing Whitehead v. 28. Pinnacle Props. V, 319 Ga. App. at 100, 46. Camp, 232 Ga. at 40, 205 S.E.2d at 196. Kennedy, 206 Ga. 760, 761, 58 S.E.2d 735 S.E.2d at 172. 47. Allright Parking of Ga., Inc. v. Joint 832, 833 (1950)); see also Macon-Bibb 29. Allright Parking, 244 Ga. at 381, 386, 260 City-Cty. Bd. of Tax Assessors, 244 Ga. Cty. Bd. of Tax Assessors v. Atl. Se. S.E.2d at 318, 320 (finding that although 378, 387, 260 S.E.2d 315, 321 (1979). Airlines, 262 Ga. 119, 414 S.E.2d 635 Section 4a of a parking lot conveyance 48. Buoy v. Chatham Cty. Bd. of Tax (1992) (supporting the proposition that a stated “it is acknowledged and agreed Assessors, 142 Ga. App. 172, 173, 235 usufruct is not considered an interest in that, upon execution of this Agreement, S.E.2d 556, 558 (1977). land and therefore it is not subject to ad Tenant’s interest in the Premises shall 49. 267 Ga. App. 8, 598 S.E.2d 791 (2004). valorem taxation). be only a usufruct,” third persons not 50. Id. at 14, 598 S.E.2d at 796. 17. Pinnacle Props. V, LLC v. Mainline parties to the agreement are not bound 51. Id. at 13, 598 S.E.2d at 795. Supply of Atlanta, LLC, 319 Ga. App. 94, by that stipulation). 52. Id., 598 S.E.2d at 795-96. 96, 735 S.E.2d 166, 169 (2012). 30. Id. at 386, 260 S.E.2d at 320. 53. S. Airways Co. v. DeKalb Cty., 216 Ga. 18. Evans Theatre Corp., 79 Ga. App. at 69, 52 31. Macon-Bibb Cty. Bd. of Tax Assessors v. 358, 360, 116 S.E.2d 602, 604 (1960). S.E.2d at 660. Atl. Se. Airlines, 262 Ga. 119, 119, 414 54. Id. at 365, 116 S.E.2d at 607. 19. Jekyll Dev. Assocs., L.P. v. Glynn Cty. S.E.2d 635, 636 (1992). 55. Id.; see also Midtown Chain Hotels Co. v. Bd. of Tax Assessors, 240 Ga. App. 273, 32. Id. at 120, 414 S.E.2d at 636. Bender, 77 Ga. App. 723, 728, 49 S.E.2d 274, 523 S.E.2d 370, 372 (1999). 33. Id. 779, 783 (1948) (finding a five-year hotel 20. Id. at 276, 523 S.E.2d at 373; Allright 34. O.C.G.A. § 44-7-1(b). lease was deemed a usufruct because Parking, 244 Ga. at 386, 260 S.E.2d 35. Diversified Golf, LLC v. Hart Cty. Bd. of the landlord maintained the right to at 320-21 (describing the difficulty Tax Assessors, 267 Ga. App. 8, 11, 598 enter and retake the premises, limit associated with administering the S.E.2d 791, 794 (2004) (citing Macon-Bibb the premises to hotel use only, prevent Court’s balancing test due to “the fact Cty. Bd. of Tax Assessors, 262 Ga. at 119, assignment or sublease, and prevent any that various sections of the lease are 414 S.E.2d at 636); see also Ginsberg v. structural repairs by the tenant). indicative of the grant of an estate for Wade, 95 Ga. App. 475, 478, 97 S.E.2d 56. Buoy v. Chatham Cty. Bd. of Tax years, whereas other sections of the 915, 917 (1957) (stating that “it is also Assessors, 142 Ga. App. 172, 173, lease are characteristic of the grant of a true that all leases for five years do not 235 S.E.2d 556, 558 (1977) (“This usufruct only”). necessarily create an estate for years but lack of dominion or control is what 21. Diversified Golf, LLC v. Hart Cty. Bd. of that there is a presumption that a lease distinguishes this case from Southern Tax Assessors, 267 Ga. App. 8, 11, 598 for five years does convey an estate for Airways Co. v. DeKalb Cty.”). S.E.2d 791, 794 (2004). years”); Camp v. Delta Airlines, Inc., 232 57. State v. Davison, 198 Ga. 27, 42, 31 22. See, e.g., Camp v. Delta Airlines, Inc., 232 Ga. 37, 39, 205 S.E.2d 194, 196 (1974) S.E.2d 225, 233 (1944). Ga. 37, 40, 205 S.E.2d 194, 196 (1974) (discussing the rebuttable presumption 58. Id. (“The key inquiry turns upon whether that an agreement to lease for more than 59. In re Airport Rental Car Facility Tax various restrictions in the agreement … five years conveys an estate for years). Appeals, No. 2016-CV-283425 (Super. sufficiently negate the presumption that 36. Warehouses, Inc. v. Wetherbee, 203 Ga. Ct. of Fulton Cty. Apr. 19, 2017) (Order this is an estate for years”); Ginsberg 483, 484, 46 S.E.2d 894, 896 (1948). Granting the Operators’ Motion for v. Wade, 95 Ga. App. 475, 478, 97 37. Id. at 485, 46 S.E.2d at 896. Summary Judgment). S.E.2d 915, 917 (1957) (demonstrating 38. Camp, 232 Ga. at 40, 205 S.E.2d at 196. 60. Id. at 3. that a jury is authorized to find that a 39. Diversified Golf, 267 Ga. App. at 10, 598 61. Id. at 6. landlord-tenant relationship exists after S.E.2d at 794. 62. Id. at 7. considering “the intention of the parties 40. 319 Ga. App. 94, 99, 735 S.E.2d 166, 171 63. Id. at 12. and the severability of the amount of (2012). 64. Id. at 16. rent to be paid for different years”). 41. 346 Ga. App. 63, 66, 815 S.E.2d 246, 65. In re Airport Rental Car Facility Tax 23. Allright Parking, 244 Ga. at 385, 260 249 (2018) (“To resolve whether the Appeals, No. 2016-CV-283425 (Super. S.E.2d at 320; Pinnacle Props. V, LLC presumption has been overcome in Ct. of Fulton Cty. May 30, 2017) v. Mainline Supply of Atlanta, LLC, 319 this case, we must examine the terms (Stipulation of All Parties and Final Ga. App. 94, 99, 735 S.E.2d 166, 171 of the lease agreements and determine Consent Order as to Attorneys’ Fees). (2012). what interests the parties intended to 66. Chatham Cty. Bd. of Assessors v. Jay 24. John Taylor, A Loss for the Tax convey.”) (citations and punctuation Lalaji, Inc., Airport Hotels, 357 Ga. App. Man: Usufructs in Georgia, Making Real omitted). 34, 849 S.E.2d 768, 771 (2020). The Estate Work Blog (Aug. 14, 2018), 42. Camp, 232 Ga. at 40, 205 S.E.2d at 196; authors thank W. Brooks Stillwell, of
24 GEORGIA BAR JOURNAL SOUTHERNA Virtual CENTER Benefit FOR to SuppotHUMAN theRIGHTS
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Celebating the th SARA20 Anniversary J. TOTONCHI of EXECUTIVE DIRECTOR, SCHR
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WWW.SCHR.ORGRSV P /JUSTICETAKINGROOT GBJ | Feature
Normally, the Georgia Bar Media & Judiciary Conference fills one very full 30th Annual Georgia Friday in February. As you might imag- ine, this year, things weren’t normal. The Bar Media & Judiciary 2021 conference was spread out over three days in February and featured discussions Conference covering COVID-19, social justice issues, elections and election law, and reporting. Each day, registered participants were sent The 30th anniversary of the Bar Media & Judiciary Conference, held links to view the scheduled panels from the virtually over three days in February, brought together judges, comfort of their home or office. lawyers, and print and television journalists to explore current issues The conference opened on Wednes- amid the COVID-19 pandemic. day, Feb. 24, with a panel discussion on BY ASHLEY G. STOLLAR how to apply lessons learned in 2020 to today—and tomorrow. PHOTOS BY ASHLEY G. STOLLAR Members of the Judicial Council of Georgia COVID-19 Task Force discuss the work the courts have done during the pandemic and how that work will continue to be affected as we move forward. (Top row, left to right) Hon. Susan Edlein, judge, State Court of Fulton County; Hon. Brian Amero, judge, Superior Court, Flint Judicial Circuit; (bottom row, left to right) Hon. Harold D. Melton, chief justice, Supreme Court of Georgia; Hon. Shawn LaGrua, justice, Supreme Court of Georgia.
26 GEORGIA BAR JOURNAL Coping with COVID-19: The Science & Our Society
Moderator l Andy Miller, Georgia Health News
Panelists l James Curran, Chair, Georgia Board of Public Health; Dean, Rollins School of Public Health at Emory University l Carlos del Rio, Professor of Global Health, Rollins School of Public Health at Emory University While a departure from the usual, this l Patrice Harris, President-Emeritus, American Medical Association, Atlanta year’s iteration of the Bar Media & l Amber Schmidtke, Microbiologist Judiciary Conference was one that will and Author, Georgia COVID-19 be remembered for its unique interactive Updates Newsletter l Scott Steiner, President & CEO, opportunities and powerful subject Phoebe Putney Health System, Albany matter, which will hopefully guide all The first panel of the conference participants as they move forward in their looked at how COVID-19 has affected so- ciety, and the science behind the shifting, respective professions. and often contradictory, health guidelines that the United States has been wrangling with since the beginning of the pandemic. Discussion included issues such as the un- derestimation of the severity of the pan- demic, health inequities across the coun- try, mental health strain, safely reopening schools and vaccine hesitancy among racial groups based on historical issues (e.g., Tuskegee Syphilis Study).1 Beyond the immediate grief of those who have lost loved ones and the disruption of routines, Dr. Patrice Harris expressed concern about the long-term impact of the pandemic, especially on mental health, say- ing, “Historically, mental health infrastruc- ture has been ignored and underfunded.” Scott Steiner related his experience as the hospital administrator who dealt with
2021 APRIL 27 (Left to right) Georgia First Amendment Foundation President Emeritus Richard T. Griffiths interviews Georgia Secretary of State Brad Raffensperger during the “Elections in Modern Day America: Georgia Style” panel.
being Georgia’s COVID-19 ground zero. ulations vaccinated so that they aren’t in- Panelists By March 24, 2020, Albany was the fourth advertently spreading COVID-19. l Alexis Madrigal, COVID-19 Tracking hottest spot in the world for COVID-19 Project, The Atlantic, Oakland, California issues. At one point, 70% of their patients l New York had COVID-19. Day Two | Feb. 25 Al-Amyn Sumar, Counsel, Times James Curran evaluated the Centers for The second day of the conference featured , Washington, D.C. Disease Control’s (CDC) performance and a panel that addressed access to data and l Carrie Teegardin, Investigative explained that no one thought a respira- reporting information about the pan- Reporter, Atlanta Journal-Constitution tory disease would kill 500,000 people in demic, followed by a panel that reviewed l Sam Whitehead, Reporter, WABE, one year. The CDC slowed down testing Georgia’s election process, both topics that Atlanta when, rather than buying tests used over- will be relevant for some time to come. Getting good information from the seas, the United States chose to make its Georgia Department of Public Health own. Curran felt that the CDC’s role was has never been easy, according to Car- politicized, and that it was unable to work Reporting on the Pandemic: rie Teegardin, AJC reporter. Last year, without oversight by the former adminis- Access to the Data That Counts Teegardin spoke to the Bar Media & tration. But, Curran noted, he is optimistic The COVID-19 pandemic has exposed Judiciary Conference about her work because “we’ve learned from the perils of dangerous gaps in the public’s civic infor- on nursing homes that led to action by the pandemic.” mation safety net. Data about coronavirus the Georgia General Assembly. This With vaccination numbers increasing, infections at schools, nursing homes and year, she addressed reporting on the is this the beginning of controlling CO- workplaces has been released inconsis- state’s response to COVID-19 data. The VID-19? Dr. Carlos del Rio remarked that tently at times because of confusing fed- amount of information varied from loca- though the numbers look good, it is too eral privacy laws. Panelists discussed the tion to location. As the pandemic pro- early to tell: “We’re coming down from challenges of obtaining reliable data about gressed, metro-Atlanta hospitals were Everest. We’re just at the first base camp.” the pandemic and what the law says about not forthcoming about the number of Amber Schmidtke related that, at this the government’s duty to provide health- cases, while hospitals outside the metro point, the younger cohort is the group related information. area were more likely to share infor- that is transmitting COVID-19 at a mation. Teegardin noted that the state higher rate. Variants are 40-80% more Moderator government stymied requests for public transmissible, so the risk of spreading l Frank LoMonte, Director, Brechner information by delaying responses for will increase. Schmidtke stated that it’s a Center for Freedom of Information, record requests and quoting thousands race against time to get the younger pop- Gainesville, Florida of dollars needed to fulfill requests.
28 GEORGIA BAR JOURNAL Participants on the “Meeting the Moment: Racial Justice, Law Enforcement and the Right to Protest” panel included (top row, left to right) Lisa Cupid, chair, Cobb County Commission; Flynn D. Broady Jr., district attorney, Cobb Judicial Circuit; Jasmina Alston, reporter, CBS46; (bottom row, left to right) John Melvin, assistant director, Georgia Bureau of Investigation; and Tiffany Williams Roberts, Southern Center for Human Rights.
Sam Whitehead discussed the daunt- Keynote Interview tary of State’s office took heat for sending ing task of getting information from l Brad Raffensperger, Georgia Secretary out absentee ballot forms, Raffensperger state and federal levels, especially during of State stood by his decision to get ahead of other a time when public meetings are not be- groups that send out forms. “At the end ing held. Other states are being specific, Panelists of the day,” he said, “all Georgians want is he explained, whereas Georgia claimed l Sen. Jen Jordan (D-Atlanta), Senate honest and free elections. They’d like to sharing information would be violating Committee on Special Judiciary see the appropriate balance between ac- HIPAA. He predicted a flood of retro- cessibility and security, and I’ll fight hard l spective COVID-19 stories. Rep. Barry Fleming (R-Harlem), for that.” Alexis Madrigal explained the advent Special Committee on Election Integrity Griffiths then spoke with Rep. Barry of the COVID-19 Tracking Project and its l Andra Gillespie, Associate Professor Fleming and Sen. Jen Jordan about the procedures for procuring and interpolat- of Political Science, Emory University ongoing session of the Georgia General ing data from individual states. Al-Amyn Moderated by Richard T. Griffiths, Assembly, in which several bills were in- Sumar began researching HIPAA when this panel focused on Georgia’s 2020 gen- troduced that make changes to Georgia’s journalists were met by health officials eral election and the ongoing work of the election process. who cited it when not sharing data, and Georgia General Assembly as it tackles a Fleming talked about Georgia’s last noted that HIPAA cannot stop journalists slew of voting legislation. two general elections, 2018 and 2020, from reporting public information. First, Griffiths interviewed Georgia’s both of which were extremely close Secretary of State Brad Raffensperger, when the final votes were tallied. In his who began by saying, “Our office worked estimation, there seems to be a lack of Elections in Modern Day hard to ensure we had an open and hon- confidence in the election system—there America: Georgia Style est election in 2020.” Georgia had five were significant perceived problems in A review by interview of the Georgia million absentee voters, 16 early voting the 2020 general election. The challenge election process—successes, challenges days and an average wait time of under for the Legislature is to see what changes and lessons learned for the future. three minutes on election day. When can be made to increase confidence in asked about the new voting technology elections. The best way to fix perception Moderator used this year, Raffensperger noted that of problems is to instill confidence in l Richard T. Griffiths, President the state was ready during the primary, the process. Emeritus, Georgia First Amendment and there were some hiccups because of Jordan shared her thoughts on the Foundation, Atlanta the inability to do hands-on training in 2020 general election, saying, “In Novem- light of the pandemic. While the Secre- ber and January, Georgia had some of the
2021 APRIL 29 Thank you to the sponsors of along partisan and racial lines. We need to duced that would prove valuable. Once the the 30th Annual Georgia Bar look at the intent, timing and their poten- COVID-19 situation arose, the courts were Media & Judiciary Conference tial effectiveness.” In her opinion, the chal- able to react using the plan that was estab- lenge of the 2020 general election is that lished years before. “It provided a source a lot of rumors and misinformation was of comfort, to know that we had plan,” spread, and policy shouldn’t change be- Melton said. ACLU of Georgia cause people doubled-down on a lie. She At the beginning of the pandemic, noted that the American election system is Melton explained, there was a sense of American Constitution Society, largely fraud-free. panic. Courts were handling things on a Georgia Chapter local level, using the model order from Atlanta Journal-Constitution the bench book. When the governor Day 3 | Feb. 26 declared a statewide emergency order, Atlanta Press Club The final day of the conference included the judiciary was able to declare a judi- Bryan Cave Leighton Paisner LLP panels on racial justice, media and poli- cial emergency. The Supreme Court and Caplan Cobb LLP tics, and a conversation about the pan- Judicial Council created the COVID-19 demic and Georgia courts, featuring the Task Force intended to provide guidance CNN chief justice of the Supreme Court of for courts during the pandemic. Council of Probate Court Judges Georgia, the COVID-19 Task Force chair Justice Shawn LaGrua, then a Superior Council of State Court Judges and the president of the Council of Supe- Court judge on the Fulton County bench, rior Court Judges. was named chair of the COVID-19 Task Council of Superior Court Judges Force, which included judges from all Daily Report classes of court, lawyers and health ex- The Pandemic and Georgia perts. The task force was divided into civil, Fisher Broyles Courts: Where We Are and criminal and juvenile sections, since each Georgia First Amendment Where We’re Headed one has different requirements. LaGrua Foundation noted that while everyone has had chal- Greenberg Traurig, LLP Moderator lenges during the pandemic, using video- conferencing for court procedures has put Jones Day l Hon. Susan Edlein, Chief Judge, State Court of Fulton County the state of Georgia a decade ahead. Judicial Council of Georgia/ Hon. Brian Amero compared his pre- Administrative Office of the Courts Panelists pandemic court to what courts look like right now. On a typical day, his court Kilpatrick Townsend l Hon. Harold D. Melton, Chief & Stockton LLP Justice, Supreme Court of Georgia; calendar would have 40 cases. Now the COVID-19 Task Force member courts will have more targeted calendar- State Bar of Georgia ing to have fewer people in court and be- l Hon. Shawn Ellen LaGrua, Justice, ing vigilant about health concerns—masks, Supreme Court of Georgia; sanitizer and proper distancing. Amero best run elections we’ve ever had. It was COVID-19 Task Force chair said that the courts will need to enlist aca- in large part because of the massive efforts l Hon. Brian Amero, Chief Judge, demics to study what new aspects of courts by the Secretary of State, local county elec- Superior Court, Flint Judicial Circuit; should stay and what can return to normal. tion boards [and] by private corporations COVID-19 Task Force member Over the next 5-10 years, courts will need and individuals that did everything they Hon. Susan Edlein moderated a discussion to think through how to use these efficien- could to make the elections as safe and with members of the Judicial Council of cies and not lose the truth-seeking process. transparent as possible.” She noted that Georgia’s COVID-19 Task Force, focused Melton noted that the Supreme Court’s our election laws are already uniform and on the work the courts have done during move to virtual arguments during the are working better than ever. the pandemic. pandemic has not created any drop-off Andra Gillespie closed out the panel by Chief Justice Harold Melton was in in the quality of arguments, despite some giving her thoughts on the current voting charge of creating a pandemic plan 10 technical glitches. legislation. When Griffiths asked what years ago when then-Chief Justice Leah When asked about the resumption of these bills represent to her in historic Ward Sears asked him to put together a jury trials, Melton admitted that process- terms, Gillespie replied, “It represents the committee within the judiciary to focus on ing the backlog of cases is the most over- ongoing struggle to make sure everyone how courts would operate during a pan- whelming issue the courts face. LaGrua gets the right to cast a vote. It represents demic situation. A bench book was pro- said, “Everyone needs to be mindful that the fault lines that exist in our society today
30 GEORGIA BAR JOURNAL there’s a long road ahead with many chal- George Floyd’s killing was played so often media during political campaigns has led lenges.” Jury trials won’t look the same, that people decided enough was enough.” to a lot of negativity. Robin Kemp said and the courts will need to address the She cited the pandemic as a factor sup- that covering local politics was hampered criminal backlog before civil cases. Amero porting the significant participation in by courts being closed. Nicole Carr and discussed his concerns about speedy trial the protest—because a majority of people Jim Galloway both noted the battle with demands that may overwhelm the system were quarantined at home, they had time disinformation as the greatest hurdle of from newly indicted cases. to sit, watch, think and organize. Alston the past year. Carr, discussing her vac- also spoke about the incident where she cine and pandemic coverage, said she is witnessed two college students being tased looking at the overall distribution and Meeting the Moment: Racial by police, and reported the situation live. allocation of vaccines, and at the time of Justice, Law Enforcement and John Melvin noted that systemic rac- the conference, there had been 4,000 un- the Right to Protest ism and government involvement is not used doses that were thrown away. She The tragic deaths of Ahmaud Arbery and a thing of the past: “At the age of 56, and also produced a piece focusing on schools other Black Americans in 2020 brought being raised in Atlanta, we still had segre- during the pandemic, finding that Rock- increased attention to racial justice issues gated water fountains.” He added, “When dale County “lost” 3,000 students during and spurred largely peaceful demonstra- you allow silence, you allow the perpetra- distance learning; statewide, 36,000 stu- tions. This panel addressed the question tors of that hate to keep on going. It was dents were unaccounted for, not having of how elected officials, law enforcement time for people for people to speak out.” the technology available in their homes and communities can meet this moment Tiffany Williams Roberts spoke of to enable distance learning. and move toward equity and justice for all. the very clear message from communi- Galloway wrapped up the panel by say- ties that continue to organize and resist, ing the AJC staff is half the size it was 20 Moderator: saying, “Things don’t change because we years ago; it doesn’t have the bodies to cov- l Lisa Cupid, Chair, Cobb County wish them to change. We have to act.” er specialized beats, and those are not likely Commission Cupid noted that regardless of one’s to return. The good thing, he said, is that profession, these events impacted every- we have cell phone cameras and video. In Panelists one personally. It is important to keep that his view, reporting’s saving grace is more l Jasmina Alston, Reporter, CBS46, in context as these issues are addressed. activated individual citizens, like panel- Atlanta ist Robin Kemp, and he believes more of those are needed. We have citizenry who l Flynn D. Broady Jr., District Attor- 2021: The Media & Our Politics knows what’s right and wrong, he stated, ney, Cobb Judicial Circuit A discussion of how media coverage of and they can spot things, put it out on so- l John Melvin, Assistant Director, government and politics is evolving. cial media or give reporters a call. Georgia Bureau of Investigation While a departure from the usual, this l Tiffany Williams Roberts, Southern Moderator year’s iteration of the Bar Media & Ju- Center for Human Rights l Richard Belcher, WSB-TV, Atlanta diciary Conference was one that will be remembered for its unique interactive op- Led by moderator Lisa Cupid, panelists Panelists portunities and powerful subject matter, discussed the racial justice issues and events which will hopefully guide all participants of 2020. District Attorney Flynn D. Broady l Jim Galloway, Atlanta Journal- as they move forward in their respective Jr. spoke of the history of minorities in the Constitution (retired) professions. l United States. He believes the criminal jus- l Nicole Carr, Investigative Reporter, tice system has been used to stop minorities WSB-TV, Atlanta or hold them down, and they continue to l Robin Kemp, The Clayton Crescent Ashley G. Stollar be oppressed and see things in a different l Matthew Osborne, The Northeast Communications Coordinator light than most Americans. He sees this as State Bar of Georgia a time to step up to protest, because people Georgian [email protected] are tired of the hate, intolerance and divi- Veteran Atlanta newcaster Richard siveness that pervade society. “Going for- Belcher guided the discussion with Atlan- ward, I think our country is ready to go ta-area TV and print reporters. The panel Endnote forward and make things better,” he said. addressed issues such as COVID-19, elec- 1. Centers for Disease Control and Jasmina Alston was on the ground tion coverage and school openings. Prevention, U.S. Public Health Service during the Atlanta protests, reporting for What has stood out to the reporters Syphilis Study at Tuskegee
2021 APRIL 31 GBJ | Feature
Georgia Diversity Program Hosts Fall Learning Lab
Advancing diverse talent requires consistent commitment to each firm’s respective goals and a willingness to continue to evolve as the issues involved in diversity, equity and inclusion evolve. BY REBECCA CHRISTIAN SMITH
The State Bar of Georgia Diversity sponses of law firms and legal in-house gender, but includes other factors such Program (GDP) held its Fall Learning Lab departments to what we all experienced as religion, age, disability and sexual ori- on Dec. 20, 2020. The virtual event, “Ad- in 2020. Kathleen O. Currey, partner, entation. However, Anderson cautioned vancing Diversity, Equity, Inclusion and Parker Hudson Rainer & Dobbs, LLP, that creating a diverse bench is not eas- Social Justice in 2021,” sought to capture led the discussion among panelists that ily accomplished and is achieved through 2020 through the lens of the judiciary, law included: Yendelela Neely Holston, part- intentionality and affirmative steps. The firms and in-house legal departments with ner and chief diversity officer, Kilpatrick work necessary to create a diverse bench a specific focus on what it means to have Townsend & Stockton LLP; Tara Jack- is never done, but the result of a diverse a diverse judiciary and the need for legal son, associate, Akerman LLP; D’Andrea bench is increased public confidence in organizations to become social justice war- J. Morning, vice president, corporate the judiciary. riors. The two-part CLE began with an in- compliance, Grady Health Systems; and One of the biggest obstacles to cre- sightful discussion moderated by Hon. Dax J.C. Roper, partner, Drew Eckl & Farn- ating a diverse bench is finances. The E. Lopez, judge, State Court of DeKalb ham. Here are the highlights of what was election process is expensive and may County. The judicial panelists included discussed in each session. involve a candidate having to halt his or Chief Justice Harold D. Melton, Supreme her respective practice in order to run. Court of Georgia; Hon. Berryl A. Ander- As a public servant, talented lawyers may son, chief magistrate judge, Magistrate Diversity, Equity & Inclusion not be willing or cannot afford the de- Court of DeKalb County; and Hon. Sher- and the Bench: Perspectives creased salary. The financial toll is a real mela Williams, judge, Fulton County Su- from Jurists and Advocates factor, and often the process and posi- perior Court. The panelists tackled issues When asked what judicial diversity means tion is not feasible. Another obstacle is including the meaning of judicial diver- and what forms are important, the pan- simple math. Are there enough diverse sity, the challenges in achieving a diverse elists agreed that all forms of diversity lawyers in the selection pool? Is there an bench, the relationship between diversity on the bench are important. Just as the active pipeline working to ensure indi- and public trust in the judicial system and law requires a jury of peers, the bench viduals move from high school, through whether diversity impacts their own work. should reflect the community. The pan- college and law school into the work In the wake of racial unrest and pro- elists also agreed that it is in the best in- force, and are then identified as a poten- tests, and the disparate impact of CO- terest of the litigant for the judiciary to tial candidate? Lastly, in the appointment VID-19 on communities of color, the reflect the community. Judicial diversity process, there must be a concerted effort second half of the CLE examined re- is broad and includes not only race and to make sure that the judicial qualifying
32 GEORGIA BAR JOURNAL GETTYIMAGES.COM/WILDPIXEL commissions are diverse and tapped into able communities. Law firms, in-house Concerned about what message they diverse candidate pools and communi- legal departments, legal organizations wanted to send and how it would be per- ties. Working to create a diverse and and agencies took note. The intersection ceived, Kilpatrick Townsend decided that inclusive bench never ends. of social justice and diversity, equity and to do nothing or act superficially would The obstacles to diversifying the bench inclusion presented the opportunity for send the wrong message. In response, and inclusion are not insurmountable. All all legal organizations to respond by con- the firm partnered with Law Firm An- of the judges expressed action-oriented ducting internal organizational scans and tiracism Alliance to further its mission solutions to keep in mind. First, recognize reaching out to the communities where of dismantling barriers by using law as a that diversifying the judiciary involves legal firms, departments and organiza- vehicle for change, benefitting vulnerable long-term commitment. Second, identify- tions have a footprint. communities through increased pro bono ing and mentoring talent is crucial. Third, Born out of the desire to do more work and advocacy with organizations on ensure that training programs are avail- than offer statements of solidarity, both legal issues, including crime and access to able for those who want to run for judi- Akerman LLP and Kilpatrick Townsend justice, immigration and education. In- cial office. These programs are crucial to & Stockton LLP took thoughtful and ternally, Kilpatrick Townsend engaged learning about the political and appoint- decisive action. in the 2020 election by staffing voter call ment process. Fourth, judges must create Akerman created the Akerman Ra- centers and providing transportation to inclusive courtrooms and be intentional cial Justice Initiative (ARJI) with full the polls. The firm’s overarching goal is about creating a diverse and inclusive staff support from the top of the firm down. to ensure that individuals both within and that reflects the community. ARJI’s goal is to form partnerships with outside of the firm are treated as people, national and local organizations to ad- and they are using their connections, re- dress systemic causes of racism and racial sources and talents to accomplish this. Law Firms & In-House: Where inequities by increasing pro bono work, Grady Hospital approached the ra- Diversity, Equity and Inclusion education and community outreach led cial protests, civil unrest and COVID-19 Intersect with Social Justice by firm lawyers and staff. As a result of through the lens of mental health and In 2020, the spotlight was brightly and the initiative, Akerman realized internal wellness. The hospital provided avenues directly placed on unjust policies, racial firm benefits, including the sharing of for all employees to process the issues, and social unrest, a pandemic and the experiences between all employees, com- and offered care, options like peer sup- disparate impact of COVID-19 on Black municating thoughts and the creation of port programs, mindfulness training and people, people of color and all vulner- an internal think tank. peer check-ins.
2021 APRIL 33 As a result of the protests and civil and quires recognition that everyone is not on social unrest, Drew Eckl & Farnham, LLP, the same footing and that each hire may doubled down on their diversity efforts by have different needs in order to advance engaging in several initiatives, including in their firm. Advancing diverse talent seeking Mansfield certification for mid- requires consistent commitment to each sized law firms. Based on the concept of firm’s respective goals and a willingness to the NFL’s Rooney Rule, the Mansfield continue to evolve as the issues involved in Rule seeks to boost the representation of diversity, equity and inclusion evolve. diverse lawyers in law firm leadership by GDP would like to recognize and thank broadening the pool of candidates consid- all of the sponsors that not only helped to ered for these opportunities. Law firms make this program possible, but have pro- that seek certification are committed to vided continuous support over the years raising the numbers of diverse lawyers to ensure that GDP continues to produce The Georgia Diversity Program within their firms to 30%. Intended ben- relevant and quality programming. l would like to thank outgoing efits include engaging with a collective Executive Director Rebecca knowledge base, cross pollination of ideas Christian Smith for her work and and resource sharing. Meeting the goals Rebecca Christian Smith service over the past three years. of the Mansfield Rule serves as a tool for Executive Director We appreciate her dedication and recruiting diverse lawyers. State Bar of Georgia Diversity Program commitment to the program, and All of the panelists agreed that equality [email protected] wish her well in her new position. and equity are not the same. Equity re-
Fall Learning Lab Sponsors
GOLD
SILVER
BRONZE
PROGRAM SUPPORTER Rick Goerrs, Esq.
34 GEORGIA BAR JOURNAL Find your people.
Georgia Lawyers Helping Lawyers (LHL) is a confidential peer-to-peer program that provides colleagues who are suffering from stress, depression, addiction or other personal issues in their lives, with a fellow Bar member to be there, listen and help.
If you are looking for a peer or are interested in being a peer volunteer, visit www.GeorgiaLHL.org for more information.
When the unthinkable happens.
The SOLACE program is designed to assist any member of the legal community (lawyers, judges, law office and court staff, law students and their families) in Georgia who suffer serious loss due to a sudden catastrophic event, injury or illness. Visit www.gabar.org for more information on SOLACE, or email [email protected].
2021 APRIL 35
2021 APRIL 35 2020 “And Justice for All” State Bar Campaign for Georgia Legal Services Program
The 2020 Campaign kicked off on April 1, 2020, and ended on March 31, 2021.
GLSP is delighted to recognize our 2020 campaign donors in each issue of the Georgia Bar Journal. Or, feel free to give anonymously. Give today and help close the justice gap in Georgia. Thank you for your generosity!
The following donors contributed to GLSP on Line D of their State Bar License Fee Notices, mailed in their donations to GLSP or donated at www.glsp.org from Jan. 1 - Feb. 28.
Anonymous (2) Jenna F. Herr Stefanie Pous Nikita Ali Tona M. Hitson Dr. Anthony R. Prosser Richard O. Allen Phyllis J. Holmen and M. Barton Rice Jr. L. Patricia Arias Jonathan W. Hewett Michael B. Rice DeKeely H. Atkins Charles T. Huddleston Mary B. Robbins Arthur Bailin Rob T. Irvin Sacred Heart Ronald L. Barabas Simmie Johnson Catholic Church James F. Barger Jr. Wanda G. Johnson Hon. E. Clayton Scofield III William J. Black III Derek C. Johnston Arnold B. Sidman Stuart L. Brown E’bria M. Karega Alfred L. Singer Joseph H. Cissell Jeff S. Klein Ashley C. Stanley Terrell B. Cook Jr. William M. Lanier Charles W. Surasky Emma H. Cramer Robert Latimer Amanda M. Taylor Oliveira Elizabeth B. Daniel Brian M. Leepson Hon. Coy H. Temples Connor W. Dooley Dr. Seth N. Leibler Carter A. Thomas Stephanie Driggers Joyce and James Lewis Christopher D. Wages Anush A. Emelianova Lauren A. Linder Patrick and Sally A. Farrar Rhani M. Lott RoseMarie Walsh Stephen B. Farrow Aqsa Mahmud Lt. Col. Charles G. Warren Terrica Redfield Ganzy Leonard T. Marcinko Nancy J. Whaley Catherine L. Gaylord John H. McNeill III Rhonda R. Wilcox Bruce and Shelley Gaynes Daryl R. Moody S. Jacob Witty Jack M. Genberg James H. Morawetz Real Property Law Section Francis L. Morris III of the State Bar of Georgia Hon. Margaret H. Murphy Thank you! Steven Gottlieb Corinne E. Nabors Visit www.glsp.org and click Mark P. Grant James J. Netter on Get Involved to donate Thomas S. Gray Jr. Steven B. Nickerson Hon. Tommy R. Hankinson Danielle K. Park online. Or mail your check to Isabelle M. Hanna Carl S. Pedigo Jr. and GLSP, 104 Marietta St. NW, Andrew M. Heaton Kathleen Horne Suite 250, Atlanta, GA 30303. Lillian K. Henry Lisa J. Plank-Schwartz “And Justice for All” State Bar Campaign for the Georgia Legal Services Program® Will You Help Close the Justice Gap in Georgia? Tsunami of Evictions Coming
This client story is used with permission. The name and photo do not necessarily represent the actual client. Mary was doing well until COVID hit. As a server in a local restaurant, she was able to pay the rent on the home she shared with her two children. But when COVID hit, she was laid off from her job. She filed for unemployment but has yet to receive her benefits. With the help of GLSP, Mary was able to assert her protection from eviction provided by the CARES Act and later by the Order from the Centers from Disease Control and Prevention. While she remained in the unit, GLSP helped Mary reach an agreement with her landlord for her to make partial payments until her
The COVID-19 pandemic has wreaked havoc across the state of Georgia. unemployment benefits started. GLSP’s assistance People continue to lose their jobs and the backlog in processing allowed Mary to keep her home and avoid eviction. unemployment claims continues. Thus, many tenants are unable to pay their rents and the tsunami of evictions filings is starting to hit. Unfortunately, we are seeing some frustrated landlords using illegal means and methods to remove tenants from rental properties. Georgia law prohibits Since March 2020, GLSP has self-help evictions and requires that landlords go opened more than 330 new cases through court to remove tenants from rental property. for tenants facing a housing crisis! This is true even if there is not a written lease between the landlord and tenant.
Give to the Georgia Legal Service Program at www.glsp.org. Your donations go to help close the justice gap in Georgia. Thank you for your generosity and support! The Georgia Legal Services Program (GLSP) is a 501(c)(3) nonprofit law firm. Gifts to GSLP are tax-deductible to the fullest extent allowed by law. TO PLACE AN ANNOUNCEMENT Bench Contact Amber Rikard | [email protected] | 404-527-8736 &Bar
Kudos Carlton Fields announced that attorney Roben S. tional organization that provides opportunities for women and West was named a 2021 Leadership Council on minority in-house counsel to connect with women and minor- Legal Diversity (LCLD) Pathfinder. The LCLD ity law firm partners and senior associates through its Fellows Pathfinder Program is designed for diverse, and Pathfinder programs. high-potential, early-career attorneys at LCLD member organizations. The goal is to provide Pathfinders with practical tools for developing and leveraging On the Move internal professional networks through relationship-building skills, foundational leadership skills and an understanding of IN ATLANTA career development strategies applicable to both in-house and Hall Booth Smith, P.C., announced law firm practice. LCLD is a premier national organization that the addition of Paul E. Petersen III, provides opportunities for women and minority in-house coun- Ryland S. Avery, E. Wylly Killorin sel to connect with women and minority law firm partners and III, William B. Podres III and Samia senior associates through its Fellows and Pathfinder programs. Marino Taufiq as associates. Peters-
PETERSEN AVERY en’s practice focuses on a wide range Parker Poe Adams & Bernstein of transportation-related litigation. LLP announced that Ellen W. Avery focuses his practice on insur- Smith and Christian Torgrimson ance coverage disputes and general were chosen for leadership posi- liability matters. Killorin’s practice tions with Commercial Real Es- focuses on defending clients in tate Women (CREW) Atlanta. medical malpractice, transportation, SMITH TORGRIMSON Smith was voted president-elect of KILLORIN PODRES premises liability, negligent security CREW Atlanta, which serves to transform the commercial real and insurance coverage lawsuits. Podres focuses estate industry by advancing women. Torgrimson was appoint- his practice on defending hospitals, correctional ed co-chair of CREW Leadership, which provides an opportu- facilities, physicians and other health care provid- nity for a smaller group of CREW Atlanta members to shape ers in medical malpractice and negligence lawsuits. strategies for their development as professionals and leaders. Taufiq’s practice focuses on medical malpractice. TAUFIQ The firm is located at 191 Peachtree St. NE, Gerber & Holder Workers’ Compensation Attor- Suite 2900, Atlanta, GA 30303; 404-954-5000; neys announced that Thomas Holder was awarded Fax 404-954-5020; www.hallboothsmith.com. the Comp Laude Award from WorkCompCentral for being the National Claimants’ Attorney of the Weinberg, Wheeler, Hudgins, Gunn & Dial, Year in 2020. The Comp Laude Awards encom- LLC, announced the election of George Green pass the entirety of the workers’ compensation and Anna Idelevich to partner. Green’s practice industry and recognize individuals and companies who strive to focuses on commercial litigation, consumer litiga- make a difference in the world of workers’ compensation. tion, construction litigation, medical malpractice,
GREEN catastrophic injury, premises liability and trans- Nelson Mullins Riley & Scarborough LLP select- portation litigation. Idelevich focuses her practice ed Jenaé Moxie as a member of the Leadership on catastrophic injury, mass tort, environmental Council on Legal Diversity’s (LCLD) 2021 class law and toxic tort, transportation, product liabil- of Pathfinders. The LCDC Pathfinder Program is ity, premises liability, nursing home and long-term designed for diverse, high-potential, early-career care litigation. The firm is located at 3344 Peachtree attorneys at LCLD member organizations. The Road NE, Suite 2400, Atlanta, GA 30326; 404-876- goal is to provide Pathfinders with practical tools for devel- IDELEVICH 2700; Fax 404-875-9433; www.wwhgd.com. oping and leveraging internal professional networks through relationship-building skills, foundational leadership skills and an understanding of career development strategies applicable to both in-house and law firm practice. LCLD is a premier na-
38 GEORGIA BAR JOURNAL James-Bates-Brannan-Groover- Troutman Pepper Hamilton Sand- LLP announced the election of Sara ers LLP announced the election Kate Rumsey, Bryson M. Smith of Constance Brewster, Timothy and Doroteya N. Wozniak to part- A. Butler, Alan Poole and Karlie ner. Rumsey’s practice focuses on Clemons Webb to partner. Brews-
RUMSEY SMITH all aspects of commercial real es- BREWSTER BUTLER ter’s practice focuses on all aspects tate, including acquisition, devel- of employee benefits and executive opment, disposition, financing and leasing of a compensation matters. Butler fo- wide array of commercial projects. Smith focuses cuses his practice on data privacy her practice on commercial real estate, includ- and technology matters. Poole’s ing acquisition, financing, and sale and leasing of practice focuses on communication commercial property. Wozniak’s practice focuses and electric infrastructure. Webb WOZNIAK on creditor’s rights and bankruptcy issues, as well POOLE WEBB focuses her practice on advising as non-bankruptcy commercial litigation, regulatory compli- clients on environmental components of both asset and stock ance and contract matters. The firm is located at 3399 Peachtree transactions, including advising on Brownfields and other clean- Road NE, Suite 1700, Atlanta, GA 30326; 404-997-6020; Fax up programs. The firm is located at 600 Peachtree St. NE, Suite 404-997-6021; www.jamesbatesllp.com. 3000, Atlanta, GA 30308; 404-885-3000; www.troutman.com.
FordHarrison LLP announced the election of Baker, Donelson, Bearman, Caldwell & Berkow- Jeffrey D. Mokotoff to managing partner and itz, PC, announced the election of David Ge- Loren C. Locke to partner. Mokotoff’s practice vertz to the firm’s board of directors. Gevertz’s focuses on broad employment law issues, includ- practice focuses on employment discrimination, ing drafting and litigating executive, arbitration wage and hour, non-compete, whistleblowing MOKOTOFF and non-compete agreements, as well as litigat- and trade secrets. The firm is located at 3414 ing wage/hour collective and class actions in Peachtree Road NE, Suite 1500, Atlanta, GA 30326; 404-577- state and federal courts. Locke focuses her prac- 6000; Fax 404-221-6501; www.bakerdonelson.com. tice on employment-based immigration, helping individual foreign nationals and their employers Kilpatrick Townsend & Stockton obtain a variety of nonimmigrant and immigrant LLP announced the election of visas and achieve lawful permanent residence in Kimberlynn Davis and Richard LOCKE the United States. The firm is located at 271 17th Goldstucker to partner and the St. NW, Suite 1900, Atlanta, GA 30363; 404-888-3800; Fax elevation of Crystal Genteman to
404-888-3863; www.fordharrison.com. DAVIS GOLDSTUCKER counsel. Davis’ practice focuses on prosecuting foreign and domes- Bovis, Kyle, Burch & Medlin, LLC, announced tic patent applications in pharmaceuticals, the the election of Rahul Sheth and Michael D. Stacy chemical arts and metallurgy; due diligence and to partner. Sheth’s practice focuses on workers’ freedom to operate analysis; and client counseling compensation, representing employers and in- and portfolio strategy for companies, universities surers in a wide variety of matters, including pro- and research institutions. Goldstucker focuses GENTEMAN SHETH tecting insurers’ subrogation liens in third-party his practice on counseling and patent litigation fault situations. Stacy focuses his practice on cor- covering a broad range of technologies. Genteman’s practice porate law and civil and commercial litigation, focuses on trademark and copyright law. The firm is located including contract preparation and disputes, at 1100 Peachtree St. NE, Suite 2800, Atlanta, GA 30309; 404- business torts, commercial real estate, sharehold- 815-6500; Fax 404-815-6555; www.kilpatricktownsend.com. er disputes and employment matters. The firm is located at 200 Ashford Center N, Suite 500, Davis, Matthews & Quigley, P.C., announced the STACY Atlanta, GA 30338; 770-391-9100; Fax 770-668 addition of Miranda E. Siegel as an associate. Sie- 0878; www.boviskyle.com. gel’s practice focuses on family law. The firm is located at 3400 Peachtree Road NE, Suite 1400, Cordell & Cordell P.C. announced the election of Atlanta, GA 30326; 404-261-3900; Fax 678-904- Jill Massey to litigation partner. Massey’s prac- 3169; www.dmqlaw.com. tice focuses on family law. The firm is located at 1 Glenlake Parkway NE, Suite 975, Atlanta, GA 30328; 404-793-0000; www.cordellcordell.com.
2021 APRIL 39 Chamberlain, Hrdlicka, White, Swift, Currie, McGhee & Hiers, Williams & Aughtry announced the LLP, announced the addition of elevation of Jeffrey S. Luechtefeld Justin Averett, Rebecca Beane, to shareholder and the addition of Lauren Byrne, Danielle Doctor, James Fielding as an associate. Lu- Margaret “Ames” Filippini, Charles
LUECHTEFELD FIELDING echtefeld’s practice focuses on repre- AVERETT BEANE “Graham” Foster, G. Scott “Scotty” senting clients in IRS examinations, Hoffman, Jessica Hubbartt, Benja- appeals and litigation. Fielding’s practice focuses on labor and min D. McClure, Stephen “Kyle” employment, counseling employers on a variety of legal issues McDonald, Marissa Merrill, Tara and litigating complex matters before federal courts. The firm is Schlairet, Michael “Brandon” located at 191 Peachtree St. NE, 46th Floor, Atlanta, GA 30303; Rosenstein, Logan Stone and Ben 404-659-1410; Fax 404-659-1852; www.chamberlainlaw.com. Yancey as attorneys. Averett’s BYRNE DOCTOR practice focuses on defending Jackson Lewis P.C. announced the elevation of clients in civil matters related to Melanie L. Paul to principal and the addition of premises, products and auto liabil- M. Travis DeHaven as a principal. Paul’s prac- ity litigation in state and federal tice focuses on occupational safety and health, courts. Beane focuses her practice and wage and hour issues. DeHaven focuses on products liability, construction
PAUL his practice on employee benefits and executive FILIPPINI FOSTER law, commercial litigation and compensation. The firm is located at 171 17th St. general liability defense. Byrne’s NW, Suite 1200, Atlanta, GA 30363; 404-525-8200; 404-525- practice focuses on representing 1173; www.jacksonlewis.com. clients in matters related to auto- mobile, bad faith and trucking liti- Parker Poe Adams & Bernstein LLP announced gation, as well as insurance cover- the addition of Diane Lidz as counsel. Lidz focus- age and premises liability. Doctor HOFFMAN HUBBARTT es her practice on real estate and commercial de- focuses her practice on counseling velopment. The firm is located at 1075 Peachtree clients in cases related to arson and St. NE, Suite 1500, Atlanta, GA 30309; 678-690- fraud, bad faith litigation and in- 5750; Fax 404-869-6972; www.parkerpoe.com. surance coverage. Filippini’s prac- tice focuses on defending clients in Taylor English Duma LLP announced the addi- commercial litigation, catastrophic tion of Edward M. Newsom as a partner. New- MCCLURE MCDONALD injury and wrongful death claims, som’s practice focuses on product liability, toxic insurance coverage, premises li- torts and defense of personal injury claims, in- ability and products liability. Fos- cluding in-court litigation and out-of-court ne- ter focuses his practice on workers’ gotiations. The firm is located at 1600 Parkwood compensation, providing defense Circle, Suite 200, Atlanta, GA 30339; 770-434-6868; Fax 770- representation to employers and 434-7376; www.taylorenglish.com. MERRILL SCHLAIRET insurers. Hoffman’s practice fo- cuses on workers’ compensation. MendenFreiman LLP announced the addition of Hubbartt focuses her practice on James A. “Jim” Tramonte as of counsel. Tramon- defending insurers, motor carriers te’s practice focuses on estate planning, estate ad- and their drivers in matters related ministration, and tax and business law. The firm to trucking and transportation liti- is located at 5565 Glenridge Connector NE, Suite gation. McClure’s practice focuses ROSENSTEIN STONE 850, Atlanta, GA 30342; 770-379-1450; Fax on workers’ compensation, repre- 770-379-1455; www.mendenfreiman.com. senting insurance companies, self-insured com- panies and servicing agents. McDonald focuses Autry, Hall & Cook, LLP, announced the elec- his practice on representing clients in claims tion of Antonio E. Veal to partner. Veal’s practice related to automobile litigation, premises liabil- focuses on business and construction litigation. ity, and trucking and transportation litigation. The firm is located at 3330 Cumberland Blvd., YANCEY Merrill’s practice focuses on defending national Suite 325, Atlanta, GA 30339; 770-270-6974; insurance carriers and business entities in claims related to www.ahclaw.com. automobile litigation, catastrophic injury and wrongful death, medical malpractice and premises liability. Schlairet focuses her practice on workers’ compensation, counseling employers
40 GEORGIA BAR JOURNAL and insurers through sensitive issues, claims and employment- Smith, Gambrell & Russell, LLP, announced the related matters. Rosenstein’s practice focuses on workers’ com- addition of Alex Khoury as a partner. Khoury’s pensation. Stone focuses his practice on representing insurers practice focuses on electronic discovery for busi- and trucking and transportation companies in trucking litiga- ness and government bodies involved in complex tion matters. Yancey’s practice focuses on representing insur- litigation and counseling clients on information ers, businesses and individuals in matters related to automobile governance issues such as data retention, de- litigation, construction law, premises liability, products liability struction and privacy. The firm is located at 1230 Peachtree St. and trucking litigation. The firm is located at 1355 Peachtree NE, Suite 3100, Atlanta, GA 30309; 404-815-3500; Fax 404- St. NE, Suite 300, Atlanta, GA 30309; 404-874-8800; Fax 404- 815-3509; www.sgrlaw.com. 888-6199; www.swiftcurrie.com. IN ATHENS Shareholders Joseph Henner and Kimbrough Law announced the addition of Tyler Scarbrough announced the Hailey Brock as an attorney. Brock’s practice fo- establishment of Henner & Scar- cuses on estate planning and VA and Medicaid brough LLP, and the addition of planning. The firm is located at 1077 Baxter St., James Artzer, Karen Bain and Suite 700, Athens, GA 30606; 706-850-6910;
HENNER SCARBROUGH Kathleen Kapetanovic as attorneys. www.kimbroughlaw.net. All attorneys focus their practice on litigation and alternative dis- IN COLUMBUS pute resolution for cases involving Page, Scrantom, Sprouse, Tucker & Ford, P.C., all aspects of the construction in- announced the addition of Jack P. Schley. Schley’s dustry, representing both domes- practice focuses on civil litigation and business tic and international clients in the and corporate law. The firm is located at 1111 Bay ARTZER BAIN construction industry, including Ave., Third Floor, Columbus, GA 31901; 706- owners, general contractors and suppliers, on 324-0251; Fax 706-243-0417; www.psstf.com. projects ranging from multibillion-dollar stadium and infrastructure projects to alternative energy Hall Booth Smith, P.C., announced the election of production and greenfield industrial installations. Mariel E. Smith to partner. Smith’s practice focuses The firm is located at 3379 Peachtree Road NE, on defending companies in labor and employment KAPETANOVIC Suite 555, Atlanta, GA 30326; 404-260-3206; Fax lawsuits and pre-litigation investigations involving 404-260-3205; www.henscarlaw.com. various state and federal agencies. The firm is locat- ed at 1301 1st Ave., Suite 100, Columbus, GA 31901; Freeman Mathis & Gary, LLP, announced the 706-494-3818; Fax 706-494-3828; www.hallboothsmith.com. addition of John S. Ghose as a partner. Ghose’s practice focuses on advising clients on data secu- Butler Wooten & Peak LLP announced the addi- rity and privacy legal issues, including regulatory tion of Ramsey B. Prather as a partner. Prather’s compliance with federal and state data security practice focuses on representing whistleblowers and privacy laws. The firm is located at 100 Gal- in False Claims Act cases, plaintiffs in business leria Parkway, Suite 1600, Atlanta, GA 30339; 770-818-0000; tort litigation and victims in serious personal in- www.fmglaw.com. jury matters, such as tractor trailer wrecks. The firm is located at 105 13th St., Columbus, GA 31901; 706-322- Butler Wooten & Peak LLP announced the addi- 1990; Fax 706-323-2962; www.butlerwootenpeak.com. tion of L’Zandra V. Jones as an associate. Jones fo- cuses her practice on business torts, product liability IN MACON and personal injury. The firm is located at 2719 Bu- Anderson, Walker & Reichert, LLP, announced ford Highway, Atlanta, GA 30324; 404-321-1700; the addition of Robert A. B. Reichert as of coun- Fax 404-321-1713; www.butlerwootenpeak.com. sel. Reichert’s practice focuses on business law, economic and community development, and McArthur Law Firm announced the addition of government relations. The firm is located at 577 Michael L. Thompson as an associate. Thomp- Mulberry St., Suite 1410, Macon, GA 31201; son’s practice focuses on plaintiff’s personal injury, 478-743-8651; www.awrlaw.com. including medical malpractice. The firm is located at 1201 Peachtree St. NE, Suite 2000, Atlanta, GA 30361; 404-565-1621; www.mcarthurlawfirm.com.
2021 APRIL 41 James-Bates-Brannan-Groover- IN SAINT SIMONS ISLAND LLP announced the addition of Whelchel & McQuigg, LLC, an- Edgeley A. Myers as counsel and nounced the election of Britton John Dustin “JD” Hawkins and A. Smith to partner and the addi- Spencer D. Woody as associates. tion of Brian D. Corry as a partner.
MYERS HAWKINS Myers’ practice focuses on general Smith’s practice focuses on residen- civil litigation, employment law, SMITH CORRY tial real estate, property tax sales, premises liability, eminent domain, business the representation of homeowner law, insurance litigation and appellate litigation. and condominium associations, and general business matters. Hawkins focuses his practice on all areas of tax Corry focuses his practice on local government representation, and estate planning matters. Woody’s practice civil litigation and personal injury. The firm is located at 504 focuses on general litigation, including business Beachview Drive, Suite 3D, Saint Simons Island, GA 31522; WOODY litigation, tort litigation and insurance defense. 912-638-1174; Fax 912-638-6595; www.wandmattorneys.com. The firm is located at 231 Riverside Drive, Macon, GA 31201; 478-742-4280; Fax 478-742-8720; www.jamesbatesllp.com. IN HARTFORD, CONNECTICUT Freeman Mathis & Gary, LLP, announced the addition of an office IN SAVANNAH in Hartford, Connecticut. The firm is located at 185 Asylum St., Bouhan Falligant LLP announced 6th Floor, Hartford, CT 06103; 959-202-5150; www.fmglaw.com. the addition of Logan Lineberry, Chase Lyndale and John Parker as associates. Lineberry focuses his practice on corporate defense, trans-
LINEBERRY LYNDALE portation and logistics, education law, medical malpractice and prod- uct liability. Lyndale’s practice focuses on maritime, malpractice and professional liability, transporta- tion and logistics, and health care. Parker focuses his practice on commercial and residential real estate. Announcement The firm is located at 1 W. Park Ave., Savannah, PARKER GA 31401; 912-232-7000; www.bouhan.com. Submissions
HunterMacLean announced the addition of Hannah L. Krasny he Georgia Bar Journal welcomes the and Charles E. Hicks as associ- submission of news about local and ates. Krasny’s practice focuses on Tvoluntary bar association happenings, Bar litigation. Hicks focuses his prac- members, law firms and topics of interest
KRASNY HICKS tice on real estate law. The firm to attorneys in Georgia. is located at 200 E. Saint Julian St., Savannah, GA 31412; 912-236-0261; Fax 912-236-4936; Notices are printed at no cost, must be www.huntermaclean.com. submitted in writing and are subject to editing. Some restrictions apply, and items Savage, Turner, Pinckney & Savage are printed as space is available. News announced the addition of Elizabeth releases regarding lawyers who are not McKee and Sophia Karnegis as as- members in good standing of the State Bar sociates. McKee’s practice focuses of Georgia will not be printed. Learn more on complex civil litigation, serious at www.gabar.org/newsandpublications.
MCKEE KARNEGIS personal injury, civil rights viola- tions, malpractice and other high- For more information or to submit an stakes cases. Karnegis focuses her practice on serious personal announcement, please contact Amber injury, wrongful death and civil rights violations. The firm is Rikard, [email protected] or 404-527-8736. located at 102 E. Liberty St., 8th Floor, Savannah, GA 31401; 912-231-1140; Fax 912-232-4212; www.savageandturner.com.
42 GEORGIA BAR JOURNAL Serve the Bar. Earn CLE credit.
2 3 6
Volunteer and complete online Coach a team or judge a trial Earn up to six CLE credits for training to be a peer in the for the High School Mock Trial having your legal article published Georgia Lawyers Helping Lawyers program and receive up to three in the Georgia Bar Journal. Contact program and earn up to two CLE hours of CLE credit. Contact [email protected] to learn more. hours during your training. Visit [email protected] for more www.georgiaLHL.org to learn more. information and to volunteer. GBJ | Office of the General Counsel
Working Through Adversity
BY PAULA FREDERICK
Your assistant forwards a call from a about contamination from underground of the property on the basis of environ- potential client. tanks. When we thought about getting mental considerations …”. “You probably don’t remember me, a lawyer to help us oppose it, we all So how do you tell whether matters but I live in Castleville, near the new thought about you.” are materially adverse? Is it possible for recycling center,” the potential client be- “I’m flattered,” you admit, “but I’m go- a new representation to be materially ad- gins. “We met a couple of years ago when ing to have to think about whether I can verse to representation of a former client you helped Re-Use get its environmental do it. The folks at Re-Use probably won’t if the former client won’t even be a party permits, remember?” like it, but it really doesn’t have anything to the new matter? “I remember meeting a lot of people to do with them.” A new opinion from the American Bar at those neighborhood association meet- Or does it? Association provides some guidance. ings,” you reply vaguely. Georgia Rule of Professional Conduct Formal Opinion 497 (Feb. 10, 2021) “We appreciated you coming out to 1.9 prohibits a lawyer from representing includes examples of situations that in- explain things to us. I really liked how a new client whose interests are materially volve “material adverseness.” Most obvi- you handled all the neighbors’ concerns. adverse to those of a former client if the ous is suing a former client, but negotiat- We thought the recycling center might matters are substantially related and if the ing against or cross-examining a former bring a lot of traffic into the neighbor- former client objects. client also create problems if the lawyer hood, but it hasn’t been a problem at all.” Some readers will disagree that the will use confidential information from “I’m glad to hear things are going well,” scenario above involves matters that the prior representation. you respond. “How can I help you?” are substantially related, but it comes The opinion provides three examples “We just got word that a developer directly from Comment 3 to the Rule: where a lawyer either directly attacks or wants to build a gas station and con- “… a lawyer who has previously repre- undermines work that the lawyer has venience store across from the Re-Use sented a client in securing environmen- done for another client. The examples Center. The city wants to change the tal permits to build a shopping center are from actual cases in which courts zoning to allow it. The neighborhood would be precluded from representing have discussed “material adverseness.” association is against it; we’re worried neighbors seeking to oppose rezoning They reach different conclusions based
44 GEORGIA BAR JOURNAL GETTYIMAGES.COM/YUOAK upon the economic or reputational harm to the former client, confidentiality con- cerns and what seems to be a general concern about the appearance of a law- yer “switching sides.” Ultimately the examples illustrate that there is no bright line test for Rule 1.9 and that courts must determine whether matters are substantially re- The safest course of action for a lawyer lated and materially adverse. The safest undertaking representation that could course of action for a lawyer undertak- ing representation that could impact a impact a former client is to seek the former client is to seek the consent of consent of the former client. Without that the former client. Without that con- sent, the new representation can be a consent, the new representation can be a risky undertaking that might end with risky undertaking that might end with the the lawyer’s disqualification. l lawyer’s disqualification.
Paula Frederick General Counsel State Bar of Georgia
2021 APRIL 45 GBJ | Attorney Discipline
Attorney Discipline Summaries
December 22, 2020 – March 18, 2021 BY JESSICA OGLESBY
Disbarment Patrick A. Powell attempted to contact him and failed to ap- Jeffrey Bull Grable P.O. Box 576 pear at a show cause hearing. A grievance 2677 Chriswell Drive Dacula, GA 30019 was filed in December 2018, and Powell Marietta, GA 30068 Admitted to the Bar 1998 failed to respond to the resulting Notice Admitted to the Bar 1997 On Feb. 15, 2021, the Supreme Court of Investigation. On Feb. 15, 2021, the Supreme Court of Georgia disbarred attorney Patrick A. The Special Master determined that of Georgia accepted the petition for vol- Powell (State Bar No. 586289) from the Powell violated Rules 1.2, 1.3, 1.4 (a), untary surrender of license for attorney practice of law in Georgia. In June 2020, 1.5 (a), 3.2 and 9.3 of the Georgia Rules Jeffrey Bull Grable (State Bar No. 303870). the State Bar filed and served a formal of Professional Conduct. The maximum Grable admitted that he represented an complaint by email, and served it by mail sanction for a violation of Rules 1.2 and individual client in a dispute with her and by publication in August 2020. Pow- 1.3 is disbarment, and the maximum business co-owner and agreed to prepare ell failed to answer the formal complaint, sanction for a violation of the remain- and file a lawsuit on the client’s behalf, and the Special Master granted the State ing rules is a public reprimand. The which he did not complete. When the co- Bar’s motion for default. The Special Special Master found that Powell’s ac- owner sued the client instead, he agreed Master found that in May 2018, Powell tions were intentional and caused injury to file a counterclaim, which he did not was retained by a third party to represent that affected his client significantly. The complete and file, and a sizable judgment a client in connection with federal crimi- Special Master found numerous aggra- was eventually entered against the client. nal charges pending in the U.S. District vating factors and no mitigating factors, Grable became aware of the judgment but Court for the Northern District of Geor- and concluded that disbarment was an failed to advise the client. Grable admit- gia. The third party paid Powell a $4,000 appropriate sanction. ted that his conduct violated Rules 1.2 (a), retainer and made one additional $1,000 1.3 and 1.4 (a) (3) of the Georgia Rules payment toward the $12,000 fee Powell David R. Sicay-Perrow of Professional Conduct. The maximum quoted. Although Powell entered an ap- P.O. Box 2108 sanction for a violation of Rules 1.2 (a) pearance on the client’s behalf in May Atlanta, GA 30301 and 1.3 is disbarment and the maximum 2018, he failed to respond to requests for Admitted to the Bar 1990 sanction for a violation of Rule 1.4 (a) (3) an update on the case, failed to perform On Feb. 15, 2021, the Supreme Court is a public reprimand. Grable also admit- any work on the case, failed to appear of Georgia disbarred attorney David R. ted that he was suspended from the prac- at pretrial and status conferences held Sicay-Perrow (State Bar No. 645285) tice of law for six months in 2005, based in August 2018, failed to respond to the from the practice of law in Georgia. The on similar conduct. district court and prosecutor when they disciplinary matter came before the Court
46 GEORGIA BAR JOURNAL on the State Bar’s Notice of Discipline, cay-Perrow was entitled to $7,950 based “He who is his own lawyer filed at the direction of the State Disci- on a contingency fee agreement); how- has a fool for a client.” plinary Board, seeking disbarment for ever, in September 2013, Sicay-Perrow violations of Rules 1.15 (I) (a), (c), 1.15 sent the clients an email stating that, “an (II) (a)-(b) and 8.4 (a) (4) of the Geor- exceptionally large amount of money was gia Rules of Professional Conduct. The stolen by a former office manager” and “I Warren R. Hinds, P.C. maximum sanction for a single violation expect that we will be able to remit the “An Attorney’s Attorney” of each rule is disbarment. The State Bar lump sum amount to you within 30 days.” • Bar Complaints attempted to serve Sicay-Perrow at his Sicay-Perrow did not communicate with • Malpractice Defense official address, but he failed to acknowl- the clients within the promised 30 days; • Ethics Consultation edge service. Since personal service could instead, he sent an email to the clients in not be perfected, he was also served by January 2014, confirming that he collect- publication but failed to file a Notice of ed a total of $31,800 (the initial $30,000 Rejection and therefore waived his right and three payments of $600) of which he to an evidentiary hearing. still owed the clients $23,850. The clients The Board’s investigation revealed then sent him a demand letter in March that in January 2013, pursuant to a 2014, and he responded that he needed a contingency fee agreement, a husband little more time or he would need to file and wife (the “clients”) retained Sicay- for bankruptcy. Unbeknownst to the cli- Perrow’s law firm to represent their in- ents, his firm had been placed into receiv- terests in a civil collections case. Sicay- ership in March 2014. Sicay-Perrow then Perrow received $805 at the time he was told the clients he would be unable to re- retained. In April 2013, the clients were pay them until the receivership ended in notified that a settlement agreement had March 2017. been negotiated on the couple’s behalf; In February 2017, the clients emailed 1303 Macy Drive in May 2013, a consent judgment was him to confirm that the payments Roswell, Georgia 30076 signed awarding $100,000 to the clients would resume in March 2017, and he Call (770) 993-1414 in Hall County Superior Court, and the responded by email, confirming that the www.warrenhindslaw.com judgment was then filed with the clerk monthly payments of $1,200 would re- of court in August 2013. The judgment sume. The clients received a check for IOLTA account to the clients. An inves- ordered the defendant to pay an initial $1,200 in March, but did not receive a tigation of Sicay-Perrow’s bank records lump sum of $30,000 to the firm on be- check in April 2017, as promised. After also revealed that his IOLTA account did half of the clients—to be deposited in several unsuccessful attempts to con- not have sufficient funds to repay the and administered from Sicay-Perrow’s tact Sicay-Perrow, the clients learned balance owed to clients. IOLTA account—and the remaining he was no longer practicing law and The State Bar stated that the Board $70,000 was to be remitted by the de- his whereabouts were unknown. As determined that the appropriate sanction fendant to the firm in monthly payments of Sept. 8, 2020 (the date of the Notice to be imposed was disbarment, and in ag- of $600, which were to be deposited and of Discipline), the clients had received gravation the Board considered that Sicay- administered from the IOLTA account seven checks from Sicay-Perrow to- Perrow had a prior disciplinary history that to the clients in monthly payments of taling $6,400, with the last disburse- included the suspension of his law license $600. Sicay-Perrow received the initial ment remitted from the firm’s business in 2017, his dishonest conduct and his 30 lump sum of $30,000 in May 2013, but checking account and received in March years practicing law. The Board found no he failed to deposit it into his IOLTA ac- 2017. Although Sicay-Perrow provided mitigating factors to be present. l count; instead, he deposited it into his the State Bar with three checks remitted business checking account. Similarly, to the clients from his IOLTA account, money orders representing the defen- an investigation revealed that the funds Jessica Oglesby dant’s June and July payments of $600 disbursed to the clients from his IOLTA were both deposited in August 2013 in account belonged to different clients Clerk, State Disciplinary Boards the firm’s business checking account. represented by his firm, such that he had State Bar of Georgia The clients expected to received also misappropriated those client funds [email protected] $23,850 from the initial lump sum (as Si- when he made disbursements from his
2021 APRIL 47 GBJ | Legal Tech Tips
Legal Tech TIPS
BY NATALIE R. KELLY AND MIKE MONAHAN
PCMag’s Best Computer like www.GeorgiaAdvocates.org/Library. 1Monitors for 2021 And don’t forget www.Georgia.FreeLegal www.pcmag.com/picks/the-best- Answers.org, a great website that allows computer-monitors you to do pro bono from your kitchen Considering we’ve been working from table or while hanging out at the airport. home since last March, you might be miss- ing the luxury of dual monitors in your home office. Check out PCMag’s list of the Windows 10 Snap best monitors for 2021, which features 4If you are a Windows user, and the multiple reviews and editors’ rankings. lack of dual monitors is really bother- ing you while working remotely, use the Windows 10 Snap feature to create the Georgia Legal Aid feeling of dual monitors by setting up 2www.georgialegalaid.org two windows docked next to each other. Check out Georgia Legal Aid’s website, Simply drag open windows to the far left our public interest community’s portal or far right of your monitor screen un- for legal information for low-income til Windows 10 snaps the window to the and marginalized communities across the selected border. state. You’ll be surprised by the amount of information you can share with your cli- ents—and family members and friends— C by GE Full Color Smart Bulb who press you for legal information! 5Another issue with the new COVID- 19-impacted workplace is that almost ev- eryone needs to participate in videocon- Pro Bono Volunteer Resources ferences. Using the proper lighting while 3And speaking of Georgia-grown digi- on screen enhances your viewers’ experi- tal resources, volunteer lawyers can ben- ence. The C by GE Full Color Smart Bulb efit from a variety of support websites, in- simulates daylight, and using the associ- cluding www.GeorgiaAdvocates.org and ated app, you can change the bulb’s light www.LegalAidProbono.org. Your favor- color to virtually any color with a simple ite public interest program may also have swipe. This product is available at Ama- an online library for its volunteer lawyers, zon, Walmart, Target and other retailers.
48 GEORGIA BAR JOURNAL mmHmm 6www.mmhmm.app Give mmhmm a try. Mmhmm allows you to customize video calls and presen- tations with custom slides, effects, back- grounds, etc. The basic version, sans Pre- mium Tools, is free.
Prezi 7www.prezi.com Similar to mmhmm, but a little more professional and easy to work with is Prezi. Prezi requires a paid subscription, but if you’re interested in adding more to your tool chest than just PowerPoint, Prezi might fit your needs.
Practice Management 2021 8Buyers Guide bit.ly/3lKOIis Using reliable practice management soft- ware is always recommended. While the Law Practice Management Program PHOTO BY WWW.ABOVETHELAW.COM can assist members with selecting the appropriate system, the 2021 “Practice out the free Cheetah COVID-19 State fulfill their wishes, set preferences and Management Buyers Guide” produced by & Federal Compare Smart Chart, pro- change their habits. The app guides you Above the Law and LegalTech Publish- vided by Wolters Kluwer. For instance, through the four steps of WOOP (Wish, ing is a great resource to determine what view each of the governor’s orders Outcome, Obstacle, Plan) and allows you you need. To check out the guide, contact since the pandemic began by selecting to save your WOOPs. the Law Practice Management Program “Executive Orders and Proclamations” at 404-527-8772, or download it at the and “Georgia.” link above.
WOOP Cheetah COVID-19 State & 10www.woopmylife.org 9Federal Compare Smart Chart Here’s a new #LawyersLivingWell, #Well- bit.ly/3tP3oQM Being app—WOOP—that is free and For a great listing of all of COVID- available in iOS and Android. The app 19-related regulations and information describes itself as a science-based mental from state and federal sources, check strategy that people can use to find and
GETTYIMAGES.COM/NICOELNINO
2021 APRIL 49 GBJ | Law Practice Management
Managing Common Technology Mishaps: How to Avoid Announcing, “Your Honor, I’m NOT a Cat!”
When used incorrectly or without the requisite knowledge or adequate training, technology can create chaos and wreak havoc on work product. To help you avoid some of these common tech missteps, consider these tips. BY NATALIE R. KELLY GETTYIMAGES.COM/ERANICLE
Technology can be a godsend, helping instead of applying redactions; they did ture be turned off. It’s also very important legal professionals do their jobs more ef- not remove confidential notes or back- to understand how to mute and unmute ficiently and productively. But when used ground metadata in final drafts. To help your microphone and turn your video on incorrectly or without the requisite knowl- you avoid some of these common tech and off during the session if need be. You edge or adequate training, technology can missteps, consider these tips. should also review the procedure for us- create chaos and wreak havoc on work ing a phone instead of your computer’s productivity. The viral cat lawyer video audio to cure connection issues you might is a prime example of how a lack of un- Zoom Missteps encounter. Finally, go over how to record derstanding of used technology can cause Zoom is arguably the most-widely used your sessions, including capturing the in- an entire process to run off the rails. This videoconferencing platform since the formation placed in the chat area. It’s also display playing out publicly underscores start of the pandemic. If you are a legal a good idea to practice going online and the importance of knowing how to use professional using the service, it’s easy inviting others into your videoconfer- the products and platforms that are essen- enough to join a session. However, if ence prior to your meeting to work out tial to doing business. While the cat seen you are hosting the meeting, you need any kinks before the actual session begins. in the video was not a Zoom feature, the to be able to set up secure sessions and hilarious video emphasizes that lawyers manage profiles and connections during and judges not only need to know it is a your meetings. There are a number of Metadata filter, but how and why it can be disabled. training tutorials available to guide you An easy definition of metadata is the The bottom line is that lawyers must know through both basic and more advanced file information behind any file. Meta- how to use the tools they employ. Kudos features to help you secure and enhance data tracks the properties and identifying to the judge for allowing the video to be your sessions going forward. Check all fields and tags defining a document. If you posted to demonstrate professionalism and the devices you will be using beforehand fail to adequately manage—and in some to allow for this learning opportunity. and become familiar with how basic fea- cases “scrub”—the metadata from files, Headlines often share stories of law- tures work on each item. Quick YouTube you may inadvertently disclose confiden- yers or their staff who have improperly videos are available alongside the actual tial information. This can lead to being used technology. They did not turn off Zoom tutorials, covering basic features mentioned in embarrassing headlines (at a filter; they did not password protect a like adding your name and professional a minimum), and more seriously, dealing device or program; they clicked on a sus- photo to your profile and uploading a with disciplinary proceedings resulting picious email from someone from whom background to help minimize potential from revealing sensitive information. they did not expect to receive a message; distractions—remembering some pro- Invest time in learning how to properly they used a black box image to cover text ceedings will require the background fea- protect and share data residing behind
50 GEORGIA BAR JOURNAL The State Bar of Georgia would like to thank outgoing Law Practice Management Program Director Natalie R. Kelly for her more than 25 years of service to the profession. We appreciate her dedication and commitment to the program, and wish her well in her new position as director of legal management for the Southern Poverty Law Center. files. Password protect documents and Phishing Schemes The missteps with technology are use the Windows Inspect function to Data loss and security breaches result often surprisingly simple to resolve. If strip out information you do not want to from lawyers taking the bait when it you are not sure of a particular technol- travel with any particular file. comes to online scams. With appropriate ogy you are currently using or are con- phishing prevention training combined sidering implementing, then get help. with common sense and some DIY de- Use tech support, product knowledge Redaction tective work, users can learn to identify bases, Google searches, vendor forums For some reason, redaction is still hard whether emails are legitimate or should and even YouTube videos to learn more for some to get right. Use proper redac- be blacklisted and avoided. Prevention about a particular technology. Check tion tools to protect against inadvertent training coupled with clear firm policies regularly to make sure your systems are disclosure of confidential information; on how to handle phishing emails goes a properly updated. Secure devices and highlighting sensitive information with long way toward keeping data protected. platforms with passwords and two-fac- a dark blue or black highlight is not ap- tor authentication. Participate in train- propriate and will fail. True redaction is ing on processes and procedures. Prac- available in many PDF management tools, Lost or Stolen Devices tice data backup and restore routines so like Adobe Acrobat DC. The application While the pandemic has resulted in so- you are protected beyond any breach. of redaction will extract data and image cial distancing rules that should eliminate If you approach your use of technology layers in files and create an impenetrable the possibility that people will be look- focused on using these tips, you won’t feel image in its place. ing directly over your shoulder, it is still as if you have to announce to the world good practice to make sure screens are not that you are not a cat. available to prying eyes. Likewise, protect- For assistance with any legal technol- Ransomware ing items with location tracking and data ogy scheme, please reach out to the Law Lawyers continue to be victimized by swiping features can help eliminate some Practice Management Program at 404- hackers seeking a ransom, or worse, of the possible loss of data, which could 527-8772 or email [email protected]. l your confidential data. Ensuring you occur easily with a lost or stolen device. have proper backups, using secure con- Password protection remains a simple, nections and implementing two-factor straightforward solution to unauthorized Natalie R. Kelly authentication for logging onto systems access. And random-word pass phrases, Director, Law Practice Management can help. Likewise, implementing Virtual where accepted, are harder to crack than State Bar of Georgia Private Network connections may pro- random characters, i.e., skytoothfavorite- [email protected] vide additional security. caselaw vs. myvoiceismypassword123!
2021 APRIL 51 GBJ | Pro Bono
The Pew Research Center reports Make 2021 the Year that U.S. military veterans have consis- tently had higher standards of living than non-veterans over the past 40 years. The of the Unseen Veteran Pew Research Center study also indicates more good news—that “households head- ed by veterans have higher incomes and This year, MLAP and its volunteer lawyers will delve more deeply into legal are less likely to be in poverty, on average, issues affecting our low-income rural veterans. No one left behind, no and this is especially the case for veterans veteran left unseen. in racial or ethnic minority groups and 1 BY MIKE MONAHAN those with less education.” GETTYIMAGES.COM/NATBASIL
52 GEORGIA BAR JOURNAL Despite the overall good economic popular virtual legal clinics and serving health of veterans, the U.S. Census re- no-income to working veteran house- veals 1.5 million veterans live at or under holds. The volunteer lawyers who par- the federal poverty level in the United ticipate in our virtual clinics provide brief States.2 In Georgia, more than 52,000 vet- services and advice. Our model includes erans are receiving SNAP (food stamps) using large firm lawyers in Atlanta to benefits—that’s about 8% of the state’s serve in rural areas where we have few 625,000 veteran population. It’s a popu- lawyers to deliver legal help to unseen and lation small enough to be politically weak, isolated rural veterans living in poverty. unseen and ignored. The clinic approach is funded by a mini What would a “New Legal Deal” look grant from the American Bar Association like for these unseen 52,000 low- or no- Military and Veterans Legal Center. income Georgia veterans? With more than This year, MLAP and its volunteer 33,000 in-state, active lawyers in Georgia, lawyers will delve more deeply into le- we could make significant strides in using gal issues affecting our low-income rural the law to breach or reduce barriers veter- veterans. Our online training videos are ans face to housing and veterans’ benefits available to help lawyers understand the and improve their access to education, job legal issues and the veteran client. You training and health care. Legal interven- can find our first set of training videos tion can also prevent descent into poverty. at www.GeorgiaAdvocates.org/Library. For the veteran, the transition from active- You can also sign up to volunteer on the duty payroll is a critical moment for legal site. Our virtual clinic model allows you help on issues of employment, family sta- to volunteer and serve from your home bility and homelessness. or office while helping us reach a veteran Let us help Veterans and non-veterans with a dis- in the far corners of our state. ability are more likely to be among the No one left behind, no veteran you do working-poor than those who are non- left unseen. disabled. The Veterans Administration For more information or to volunteer pro bono. recognizes the fastest-growing contin- to make a difference, contact MLAP Di- gent of economically insecure veterans is rector Christopher Pitts at christopherp Go to the Pro Bono Resource the single parent, a majority of whom are @gabar.org or [email protected]. l Center for all your pro bono needs: 3 women veterans. l Law practice management Our Military Legal Assistance Program support on pro bono issues Mike Monahan (MLAP) has been serving the legal needs l Professional liability of Georgia’s veteran and military ac- Director, Pro Bono Resource Center insurance coverage tive duty for more than a decade. MLAP State Bar of Georgia l Free or reduced-cost CLE identifies pro bono opportunities for [email protected] programs and webinars members of our Bar that are in line with l Web-based training and support our aspirational Bar Rule 6.1 that urges for pro bono cases lawyers to dedicate at least 50 hours per Endnotes l Honor roll and pro bono incentives year of pro bono service. Volunteer at- 1.
2021 APRIL 53 GBJ | Member Benefits
Fastcase and Casemaker: The Peanut Butter & Jelly of Legal Research
Fastcase and Casemaker have joined forces and will work together to provide a superior research experience. BY SHEILA BALDWIN
The State Bar of Georgia first offered speed and ease of use, the Board of Gov- legal research as a member benefit in Jan- ernors voted to change providers, and uary 2005. This relationship was initiated Fastcase was introduced to State Bar of due to our members’ desire to have access Georgia members in January 2011. Since to quality legal research at an affordable that time, State Bar members’ use of their price. Electronic legal research was de- Fastcase Legal Research benefit has in- veloped in the late 70s, with LexisNexis creased to the point that Georgia is the and Westlaw dominating the market with most active state bar partner. At the same At no extra cost, their expensive and somewhat complex time, Casemaker has continued to repre- online services and CDs. Eventually, oth- sent the bar community while adding ad- our members er internet-based search engines entered ditional content and features that Fastcase will now have the the legal technology market with soft- doesn’t have. ware that helped attorneys keep up with As the State Bar’s member benefits ability to take case law, statutes and research resources. coordinator, I can confirm that there are advantage of Legal professionals were forced to move loyal Casemaker devotees who will be beyond their firm libraries to the cloud to especially happy to learn that these two the best of both keep current and access expanding con- companies have joined forces and will of these legal tent. Two such providers that came on work together to provide a superior re- the scene were Casemaker and Fastcase, search experience. Like peanut butter and research platforms with Casemaker being the first to exclu- jelly, one will be better with the other. At as part of their sively market to bar associations, giving no extra cost, our members will now have them the edge to become our members’ the ability to take advantage of the best of member benefit. most popular and valuable member ben- both of these legal research platforms as efit 15 years ago. part of their member benefit. Five years later, Fastcase was mov- At a recent meeting with the Mem- ing into the bar association market and ber Benefits Committee, Ed Walters, offered the State Bar of Georgia an op- CEO of Fastcase, announced the year- portunity to vet their service. Due to its long process to successfully merge Fast-
54 GEORGIA BAR JOURNAL PHOTO PROVIDED BY FASTCASE case with Casemaker, assuring all that both companies look forward to offer- SPENCER INVESTIGATIONS, Inc. ing members a superior service. The company name will remain Fastcase, with Casemaker being a subsidiary. The transition will be a gradual incor- “A” and “C” Licensed Investigators - A2500162 poration of the best features of both companies: Casemaker’s editorial and Over 30 years of high quality work product production excellence combining with Background Checks - Bank Searches Fastcase’s superior technology platform Due Diligence - Asset Location and one of the most powerful search en- Bankruptcy Investigations - Family Law gines. New content will be added from the Casemaker appendices, including 954.744.6085 • [email protected] the Pacific Reporter and the Southern www.spencerinvestigations.com • www.assetlocationrecovery.com Reporter, extending back to the 1800s; Federal Rules of Decisions; and a grow- Fastcasespencer ad.indd and 1 Casemaker experience throughout the transition from12/2/20 the 2:40Fast PM- ing Tribal Court library. The companies will remain seamless, that both teams case reference attorneys, instructional we- will still function as they do now, with are combining to bring you the best re- binars, videos and FAQs located at www. members logging in to either the Fast- sources and the merger was not due to fastcase.com/support. As always, feel free case or Casemaker portal, depending on any economic pressure. The companies to contact me at [email protected] or 404- which service they have. Users will no- began discussions in the fall of 2019, 526-8618 for Fastcase assistance. l tice added content and improvements in with the singular focus of combining to technology over time. provide bar members the best research Fastcase addressed possible concerns and workflow solutions. Sheila Baldwin about the merger in a list of frequently As a Fastcase state, you will continue Member Benefits Coordinator asked questions, stating that there will accessing your account through your State Bar of Georgia not be an increase in cost to Bar mem- State Bar member account login portal. If [email protected] bers. The FAQs emphasize that the you have any questions, you can get help
2021 APRIL 55 GBJ | Wellness
Sober Curious
Sober Curious began as a movement for individuals looking to give their minds and bodies a break from alcohol. For readers who might be considering sober curiosity, or even cutting back on your alcohol intake just one day a week ... take it one day at a time. BY MEGAN MURREN RITTLE
In keeping with this year’s wellness beers a night. Once the days got shorter theme of designing an integrated life1 and the temperature dropped, we traded and taking a closer look at the six dimen- our brewery run for splitting a bottle of sions of lawyer well-being, we are spot- wine at home and watching whatever lighting a lawyer’s social well-being. The newest binge-worthy show just hit Netflix American Bar Association (ABA) defines (“The Queen’s Gambit” really is worth the thriving social well-being as “developing hype.) It became a way for us to unwind a sense of connection, belonging and a and spend time together without having well-developed support network while to use our over-videoconferenced brains. also contributing to our groups and As the pandemic wore on, and our communities.”2 While one’s social well- need for social interaction overcame our being encompasses many arenas and re- fear, we began to meet up with friends in lationships, this article will focus on one parks or backyards, always with a tum- aspect of this dimension. bler of wine or cooler of beer. By the time Around this time one year ago, we were January rolled around, which is tradition- all in quarantine. After about two weeks ally “Dry January” in our house, we were of lockdown, my husband and I started so entrenched in our nightly habit, and to get restless. We live within walking still so exhausted with COVID-19, that distance of several breweries that were we did not even consider taking our an- open for to-go drinks and food, so, feel- nual break from alcohol. ing deprived of exercise and social inter- However, with February came our action, we decided we should walk there yearly physicals. It turns out that drink- to get some fresh air, get out of the house ing three glasses of wine daily (at about and support our local businesses. After a 120 calories per five-ounce glass) does not few months, our “support” was starting to come without consequences. Many extra look more like micro-investing as we took pounds and several looks of concern from a daily evening walk—after a workday of our primary care physicians later, we de- non-stop Zooming—to grab a few beers, cided it was time for us to consider be- chat with the servers and bartenders, and coming “Sober Curious.” head back home. Before we knew it, we Sober Curious began as a movement
were in the habit of drinking two to three for individuals looking to give their GETTYIMAGES.COM/XTOKIMAGES
56 GEORGIA BAR JOURNAL minds and bodies a break from alcohol.3 we still end up on the couch because of if today did not work out the way you had A search of #sobercurious on Instagram rain, wind, freezing temperatures or hoped—tomorrow is another day to try reveals more than 176,000 posts, many simple laziness, we would enforce a “no again. Finally, remember that it’s always of which include recipes for “mocktails,” booze on school nights” rule. We’ve also okay to reach out for guidance, whatever fancy drinks with no alcohol, and ads or been trying out some alcohol-free dis- your circumstances. The State Bar’s Law- endorsements for non-alcoholic distilled tilled spirits, wine and beer. Although the yer Assistance Program provides a broad spirits, wines and beers. Doing some re- beer we tried is not great, Grüvi’s non- range of services, including a 24-hour hot- search on the Sober Curious movement, I alcoholic Dry Secco is actually quite good line (800-327-9631) and six prepaid coun- found that, according to a piece published (and only 50 calories per serving)! seling sessions (#UseYour6). You may call by NPR in 2019, a British study showed Within our community, we also real- anytime to schedule a session or simply that adults who abstained from alcohol ized that we could, in fact, support our ask questions. l for a month lost weight. In a similar 2016 local businesses by having a meal without study, in addition to weight loss, other alcohol. We also joined monthly neigh- benefits of taking a break included better borhood trash clean-up efforts on Satur- Megan Murren Rittle is a sleep and a sense of achievement.4 day mornings. We’ve met several of our partner at the law firm of April is Alcohol Awareness Month, a neighbors that we would not have known Smith, Welch, Webb and public health program organized by the otherwise, filled our need to socialize and White, LLC, practicing in the education and general National Council on Alcoholism and feel present, and connected to the com- civil litigation groups. She is an avid Drug Dependence, created to increase munity we live in. runner and swimmer, and her favorite outreach and education regarding the Finally, we worked on a plan for inter- food is sushi or ice cream. Rittle lives dangers of alcoholism and issues related acting with our friends. We started invit- in Atlanta with her husband, Tom, and to alcohol.5 To spread awareness to the ing our friends to engage in appropriate- their fur babies. legal community, the 2016 ABA Commis- ly-distanced activities instead of saying, sion on Lawyer Assistance Programs and “Hey, let’s meet up and day drink!” My Hazelden Betty Ford Foundation study of husband started playing frisbee golf with Endnotes nearly 13,000 currently practicing lawyers a group of guys every weekend. I started 1. “Designing and Living an Integrated Life,” found that between 21 and 36% of lawyers inviting friends to dog park playdates and Plamen Russev, Georgia Bar Journal, 6 qualify as “problem drinkers.” long, leisurely bike rides. Much to our re- Feb. 2021, p. 50. While my husband’s and my nightly lief, our friends have been receptive and 2. “The Path to Lawyer Well-Being,” habit has not resulted in social or profes- have even confessed that they had found National Task Force on Lawyer sional consequences yet, our scales have themselves in a similar pattern of overin- Well-Being (2017), p. 9
2021 APRIL 57 GBJ | Writing Matters
The Amazing (and Amazingly Misused) Apostrophe
An apostrophe is a critical form of punctuation. To reduce mistakes in usage, keep their purposes and these common mistakes in mind. BY DAVID HRICIK AND KAREN J. SNEDDON
Punctuation helps writers convey writers compose drafts exclusively on their intended meaning. Used incor- digital devices. In that sentence, the word rectly, punctuation can create ambiguity “writers” is both plural, referring to more and erode the writer’s credibility with than one writer, and possessive, indicat- the reader. This installment of “Writ- ing their ownership of the word “habits.” ing Matters” focuses on the apostrophe, To indicate possession by a plural noun, a valuable form of punctuation that is the apostrophe is most often followed by sometimes overlooked and misused. We the letter “s”: The motion will focus on first summarize the three key purposes of the children’s best interests. Or an apos- the apostrophe and then share three com- trophe follows a plural noun ending in “s,” mon apostrophe mistakes made even by as in “writers’ habits.” experienced writers. To Show Omitted Letter(s) Apostrophes can be used to indicate The Apostrophe’s Three Key omission of a letter or letters, including Purposes what are known as “contractions.” Con- tractions are shortened forms of a word To Show Possession or group of words from which one or Apostrophes are used to create possessives, more letters have been omitted, such as to convey ownership. Usually, this means “aren’t” and “don’t.” The apostrophe takes the apostrophe indicates ownership by a the place of omitted letters. noun. A statute’s purpose will inform a Contractions are more commonly used court’s interpretation. An apostrophe and in informal writing, so legal writers typi- the letter “s” follow both the singular noun cally limit their use to emails. But, when “statute” and the singular noun “court” to a contraction is used, the apostrophe indicate ownership of the following word, must be placed properly. Consider this “purpose” and “interpretation.” sentence: I’ve often said that I don’t like Plural nouns are no different: Writers’ legal writing; I love legal writing! The
habits have changed as more and more word “I’ve” is the shortened form of the GETTYIMAGES.COM/JEANGILL
58 GEORGIA BAR JOURNAL The speed of typing and the pace of handwriting can sometimes cause misplacement of an apostrophe in an initial draft. Proper proofreading is the solution ...
words “I have.” The word “don’t” is the Legal writers are often told to mind their shortened form of the group of words Ps and Qs. “do not.” (Interestingly, and with many contractions, not only is a letter omit- ted, but so is a space, and so that con- Three Common Apostrophe traction converts two words into one Mistakes shortened word with an apostrophe.) This purpose for apostrophes should be Proofreading Glitches familiar to y’all, the properly punctu- The speed of typing and the pace of hand- ated form of “you all.” (We’ll leave it to writing can sometimes cause misplace- you to decide if “all y’all” is the proper ment of an apostrophe in an initial draft. plural form!) Proper proofreading is the solution, but proofreading for apostrophes can be dif- To Clarify Meaning ficult for three reasons. In addition to the two more common First, unlike commas, apostrophes purposes described above, apostrophes create in a reader no noticeable sound— can be used to make certain text easier to or pause. So, the common proofreading understand. Consider this sentence: Legal strategy of reading a text out loud is un- writers are often told to mind their p’s likely to reveal the incorrect placement and q’s. The apostrophes do not indicate of an apostrophe: The word “parents” possession or a contraction. Instead, they sounds just like the word “parent’s.” Sec- increase the readability of the sentence. ond, apostrophes hang at the top of the Look at the sentence without the apostro- line of text. When reading, our eyes not phes: Legal writers are often told to mind only do not necessarily read every char- their ps and qs. Did you have to re-read acter on the page, but our eyes often stay the sentence? The apostrophes help. in the middle of the line of text. Apos- For this purpose, an alternative tool to trophes (and quotation marks) are thus apostrophes is capitalization. So, instead outside of our typical line of sight when of apostrophes, the sentence could read: proofreading. Third, grammar check,
2021 APRIL 59 which is a helpful proofreading tool, can with the letter “s.” You see both uses in sometimes misread the presence or ab- these two sentences: sence of apostrophes or share incorrect l Chris’s neighbors think the world Find your suggested “corrections.” of him. l Common Apostrophe Problems Chris’ neighbors think the world people. There are some common problems. One is of him. mistaking “its” for “it’s.” The word “its” re- Where the conventions diverge or are fers to the possessive pronoun. Legal writ- changing, you have a choice. The key, ing has its challenges. In this sentence, “its” however, to clear writing that does not is possessive. The word “its” is just one of distract a reader is to be consistent within several possessive pronouns that don’t use each document. an apostrophe. Other examples include ours, yours, his, hers and theirs. In contrast to the possessive conveyed Conclusion with use of the word “its,” the word “it’s” An apostrophe is a critical form of punc- refers to the contractions of the words “it tuation. Mistakes in usage can be hard to is” or “it has.” It’s challenging to proof- detect but, at the same time, glaring to read a document late at night. “It’s” is a a careful reader. To reduce them, keep contraction that always means “it is” or “it their purposes and these common mis- has,” as in “it’s been a long year.”1 takes in mind. l A similar mistake involves “whose” and “who’s.” But the same rule for “its” ver- sus “it’s” applies to the words “whose” and David Hricik is a professor “who’s.” The word “whose” refers to posses- of law at Mercer University sion; the word “who’s” refers to the contrac- School of Law who has tion of the words “who is” or “who has.” written several books and more than a dozen articles. Georgia Lawyers Helping Lawyers Another common mistake arises from The Legal Writing Program at Mercer (LHL) is a confidential peer-to-peer the fact that hundreds of common English continues to be recognized as one of 2 program that provides colleagues plural nouns do not end in the letter “s.” the nation’s top legal writing programs. who are suffering from stress, So it’s “the children’s best interests,” not depression, addiction or other “the childrens’ best interests.” Karen J. Sneddon is a personal issues in their lives, with a professor of law at Mercer fellow Bar member Changing Conventions University School of Law. to be there, listen and help. Different conventions about the use of If you are looking for a peer or are apostrophes have developed over time. interested in being a peer volunteer, Some remain in style guides and manuals. Endnotes visit www.GeorgiaLHL.org for more Some have been abandoned or updated. information. For example, apostrophes are generally 1. Related to this use of contractions not used for decades: The 1990s had the is the mistaken use of the phrase best music of the twentieth century. In “would of” for “would’ve” or “would the sentence, 1990 is neither possessive have” as in “I would have busted a nor missing letters. Yet, some publica- vein if the students keep writing tions, like The New York Times, still use ‘would of.’” an apostrophe, and so would use “1990’s.” 2.
60 GEORGIA BAR JOURNAL Award of Merit • Law Day Award Best New Entry Award • Newsletter Award • Website Award Thomas R. Burnside Jr. Excellence in Bar Leadership Award The President’s Cup
For more information and guidelines, visit www.gabar.org/localbarawards. GBJ | Professionalism Page
Honestly
Join with me in reflecting on and considering how the promises we made in the Attorney Oath of Admission should guide our professional and personal conduct as Georgia lawyers who act with professionalism and—honestly. BY KARLISE Y. GRIER
It did not occur to me to think much ney oath of admission, Bell said: “[W]hen will support and defend the Constitution about my attorney oath of admission un- we were admitted to the bar, we all made of the United States and the Constitution til recently, after I read an article in the certain promises through the oath we of the State of Georgia. So help me God.”5 Daily Report that talked about a Texas took. We would do well, I think, to recall This is the attorney oath of admission judge who led attorneys in retaking their the original oath for attorneys and solici- that I would have taken in July 1992. Ten oath of office.1 It prompted me to look for tors in the State of Georgia. That oath, tak- years later, in 2002, the oath was again and more carefully consider the wording en from an English statute dated 1729 and revised to make the wording more rele- of the oath of admission I took when I used in our state until 1823, required that vant to the current practice of law, while became a Georgia lawyer. In doing some both attorneys and solicitors swear ‘to tru- retaining the original language calling for research on the attorney oath of admis- ly and honestly demean themselves.’ Many lawyers to “truly and honestly” conduct sion, I learned that the oath I took, and years later the wording of the oath was themselves.6 The current oath, which was the oath that is currently in use, were cre- changed to require that lawyers ‘justly and approved by the Supreme Court of Geor- ated as part of Georgia’s professionalism uprightly demean themselves.’ Perhaps we gia on April 22, 2002, and which remains movement. should have stayed with the old oath. The in place today reads: “I,______, On March 31, 1988, Chief Justice words ‘truly and honestly’ just seem to be swear that I will truly and honestly, Thomas O. Marshall, along with State stronger. And therefore, it might be a good justly and uprightly conduct myself as a Bar of Georgia President A. James El- idea to readopt the old oath as a part of our member of this learned profession and liott, gathered 120 prominent judges and new emphasis on professionalism.”4 The in accordance with the Georgia Rules of lawyers from around the state to attend a Supreme Court of Georgia did readopt Professional Conduct, as an attorney and “Consultation on Professionalism and The some of the wording of the 1729 oath, and counselor, and that I will support and de- Practice of Law” hosted by Emory Univer- in particular, the words “that I will truly fend the Constitution of the United States sity’s President James T. Laney at Emory’s and honestly demean myself. ...” and the Constitution of the State of Geor- Houston Mill House. At the conclusion of The oath used after the consulta- gia. So help me God.”7 the consultation, Hon. Griffin B. Bell, who tion until 2002 read as follows: “I, In 1988, why did Griffin Bell believe had served as the 72nd attorney general of ______, swear that I will truly and that it might be a good idea to readopt the the United States,2 made closing remarks honestly, justly, and uprightly demean oath dating back to 1729, which contained that were captured in a transcript of the myself, according to the laws, as an attor- the words “truly and honestly” as a part of consultation.3 In speaking about the attor- ney, counselor, and solicitor, and that I Georgia’s new emphasis on professional-
62 GEORGIA BAR JOURNAL GETTYIMAGES.COM/MAREKULIASZ ism? I believe because he understood that Endnotes also Art Hinshaw and Jess K. Alberts, people can be dishonest, unprincipled, un- 1. Angela Morris, Judge Renews Vow to Doing the Right Thing: An Empirical trustworthy, unfair and uncaring with- Uphold Law After Capitol Hill Riots, Asks Study of Attorney Negotiation Ethics, 16 out breaking the law or the code.8 Truly Lawyers to Do the Same, Law.com, Texas Harv. Negotiation L. Rev. 95 (2011) professional people measure their conduct Lawyer,
2021 APRIL 63 GBJ | In Memoriam
In Memoriam honors those ROBERT E. BRIZENDINE GARTH KLEBER DUNKLIN SPARTICUS D. HEYWARD members of the State Bar of Smyrna, Georgia Charlotte, North Carolina Marietta, Georgia Georgia who have passed Vanderbilt University Law University of North Thurgood Marshall away. As we reflect upon the School (1971) Carolina School of Law School of Law, Texas memory of these members, we Admitted 1971 (1988) Southern University are mindful of the contribu- Died November 2020 Admitted 2006 (2002) Died January 2021 Admitted 2002 tions they made to the Bar. LAURA KIM BUFORD Died February 2021 Each generation of lawyers is Hazlehurst, Georgia STANLEY R. DURDEN indebted to the one that Nova Southeastern Athens, Georgia GLOWER W. JONES precedes it. Each of us is the University Shepard Broad University of Georgia Atlanta, Georgia recipient of the benefits of the College of Law (1999) School of Law (1972) Emory University School learning, dedication, zeal and Admitted 2002 Admitted 1972 of Law (1963) standard of professional Died January 2021 Died February 2021 Admitted 1962 responsibility that those who Died January 2021 have gone before us have JAMES C. CARR WILLIAM JEFFERSON EAST contributed to the practice of Atlanta, Georgia Meridian, Mississippi PATRICIA K. KEESLER law. We are saddened that they Emory University School University of Mississippi Atlanta, Georgia are no longer in our midst, but of Law (1966) School of Law (1968) Emory University School Admitted 1966 Admitted 1989 privileged to have known them of Law (1980) Died January 2021 Died January 2021 Admitted 1980 and to have shared their Died January 2021 friendship over the years. SIDNEY J. CHERRY WAYNE T. ELLIOTT Marietta, Georgia Blue Ridge, Georgia JAMES P. KELLY University of North Carolina University of Georgia Atlanta, Georgia ROBERT W. ASHMORE School of Law (1970) School of Law (1968) Harvard Law School (1975) Atlanta, Georgia Admitted 1971 Admitted 1968 Admitted 1975 University of Virginia Died October 2020 Died December 2020 Died February 2021 School of Law (1969) Admitted 1971 GEORGE L. COHEN ROBERT W. GALLOWAY HERBERT S. KOLODKIN Died January 2021 Hilton Head Island, Pooler, Georgia Atlanta, Georgia South Carolina Atlanta’s John Marshall Woodrow Wilson College NICHOLAS E. BAKATSAS University of Virginia Law School (1973) of Law (1966) Marietta, Georgia School of Law (1956) Admitted 1978 Admitted 1966 Atlanta’s John Marshall Admitted 1957 Died March 2021 Died January 2021 Law School (1962) Died February 2021 Admitted 1969 JAMES F. GINGREY JR. MARK EARLE LAYNG Died February 2021 BOBBY LEE COOK Atlanta, Georgia Lawrenceville, Georgia Summerville, Georgia Emory University School Atlanta Law School (1980) JILES MCNATT BARFIELD Vanderbilt University of Law (1971) Admitted 1980 Vidalia, Georgia Law School (1948) Admitted 1972 Died December 2020 Mercer University Walter Admitted 1949 Died March 2021 F. George School of Law Died February 2021 JAMES E. MCALEER JR. (1980) HARRY P. HALL JR. Savannah, Georgia Admitted 1980 JAMES MONROE DONLEY Canton, Georgia Gilbert Johnson Law Died January 2021 Macon, Georgia Emory University School School (1953) Pepperdine University of Law (1956) Admitted 1953 TERRELL W. BENTON JR. School of Law (1995) Admitted 1956 Died February 2021 Athens, Georgia Admitted 1997 Died January 2021 University of Georgia Died January 2021 WILLIAM ROSS School of Law (1963) FRED THURMAN HAMLET MCCONNELL Admitted 1962 JAMES B. DREW JR. Greensboro, North Cornelia, Georgia Died January 2021 Chamblee, Georgia Carolina Atlanta Law School (1982) Emory University School Harvard Law School Admitted 1982 MARK ERICH BIERNATH of Law (1959) (1973) Died January 2021 Atlanta, Georgia Admitted 1964 Admitted 1973 Georgia State University Died December 2020 Died February 2021 College of Law (2001) Admitted 2001 Died January 2021
64 GEORGIA BAR JOURNAL 2021 APRIL 65 OBITUARY
THOMAS J. MORSE ROBIN MELISSA SMITH of Cook & Connelly LLC Thomasville, Georgia Saint Simons Island, Bobby Lee Cook Atlanta’s John Marshall Georgia in Summerville, one of America’s best- Law School (1971) University of Georgia known trial lawyers, died at his mountain Admitted 1971 School of Law (1985) home in Cloudland, Georgia, on Feb. 19, Died January 2021 Admitted 1986 2021, at the age of 94. Died November 2020 Born in Chattoogaville, a community out- MARC L. PETERZELL Atlanta, Georgia TERRANCE C. SULLIVAN side the town of Lyerly, Georgia, in 1927, Cook graduated Tulane University School Atlanta, Georgia from the University of Alabama and earned his law degree of Law (1966) University of Virginia from Vanderbilt University Law School. He was admitted Admitted 1970 School of Law (1975) to the State Bar of Georgia in 1949. For more than seven Died January 2021 Admitted 1975 decades, Cook focused the law practice he started in Sum- Died January 2021 LEE R. REDMOND JR. merville, Cook & Connelly LLC, in the areas of criminal Columbus, Georgia ROBERT L. THOMPSON law, civil litigation and municipal law. Washington and Lee Atlanta, Georgia His record of success in the courtroom attracted clients University School of Law University of North from throughout Georgia and high-profile out-of-state (1949) Carolina School of Law and international cases as well. Achieving more than 150 Admitted 1951 (1966) Died February 2021 Admitted 1968 acquittals for his clients accused of murder, his career is be- Died January 2021 lieved to have inspired the television show “Matlock,” and PHILLIP BOND SARTAIN one of his more colorful cases in Savannah is chronicled in Gainesville, Georgia WILLIAM PAUL WALKER the book and motion picture “Midnight in the Garden of University of Georgia Roswell, Georgia Good and Evil.” School of Law (1986) Woodrow Wilson College Admitted 1986 of Law (1952) A professional leader, Cook chaired the Georgia Crimi- Died December 2020 Admitted 1952 nal Justice Committee of the State Bar of Georgia in 1979- Died February 2021 80, served as vice president of the Georgia Association of R. PERRY SENTELL JR. Criminal Defense Lawyers since 1979 and was a professor Athens, Georgia WILLIAM R. WHITEHURST of criminal law with the National College of Criminal De- Harvard Law School Winston-Salem, North (1958) Carolina fense in 1979-80. Admitted 1957 University of North He was recognized with lifetime achievement awards Died January 2021 Carolina School of Law by both the National and Georgia Associations of Criminal (1982) Defense Lawyers; received the Georgia State University CHARLES M. SHAFFER JR. Admitted 1982 College of Law’s 2017 Ben F. Johnson Jr. Public Service Atlanta, Georgia Died February 2021 University of North Award, GreenLaw’s Lifetime Achievement Award and Carolina School of Law JOSEPH WILEY JR. the Small Town Lawyer Made Good Award (presented by (1967) Columbus, Georgia the State Bar of Washington); and was inducted into the Admitted 1968 Cumberland School of American Trial Lawyers Hall of Fame, among numerous Died March 2021 Law, Samford University other honors. (1989) JEROME ROBERT SMITH Admitted 1990 Outside the practice of law, Cook served in the Wilmington, North Died January 2021 Georgia General Assembly and was a Navy veteran of Carolina World War II. l Emory University School of Law (1977) Admitted 1977 Died January 2021
64 GEORGIA BAR JOURNAL 2021 APRIL 65 GBJ | Book Review
If You Did What I Asked in the First Place
By Lori B. Duff 222 pages, Deeds Publishing REVIEWED BY ROXANN SHERRI SMITHERS
Remember the good old days of March ously honest and vulnerable about her 2020? The prospect of a few weeks to quirks and insecurities—which is the first a month of respite from the rat race of sign of a self-acceptance and confidence “normal” life was the begrudging silver that is well worked for. She writes about lining in the cloud of a pandemic-induced how her recent obsession with all things shutdown. Many of us movers and shak- Wonder Woman, a curious-fitting onesie ers mused about the hobbies we would and her teenage son taught her a lesson take up and the skills we would acquire. about shame and self-confidence. I am Soon the reality of the pandemic, politics sure every parent can relate to Duff’s run- and social unrest tarnished that silver down of the Top 10 types of parents you lining. This was the climate in which I will encounter at any PTO (parent teach- started reading Lori B. Duff’s “If You Did er organization) meeting. Duff does not What I Asked in the First Place” in the exempt herself the analysis. She dubs her- fall of 2020. Duff’s breezy missive arrived self Last-Minute Lisa. What woman will “If You Did …” is a just in the nick of time. “If You Did …” not sympathize with Duff’s diatribe about collection of essays, is a collection of essays, comical confes- the utter lack of utility of the pockets in sions and a few poems about her life as women’s clothing? From mini pockets to comical confessions a woman of a certain age, Georgia attor- faux pockets, it can be enough to break and a few poems ney and judge, mother, wife and author. you on a bad day. Duff’s essays about the The vignettes are grouped together in six last poignant moments with her growing about Duff’s life as a sections: If You Did What I Asked in the teenagers will definitely speak to parents woman of a certain First Place; Out of My Element; This Is who are cherishing the extra time to con- What I’m Asking For; First World Prob- nect with their own teenagers and young age, attorney, mother, lems; Time for a Snack; and Sometimes adults finishing high school or starting wife and author. You Do What I Ask. college in a COVID-19 lockdown—the Duff, an attorney at Jones and Duff in lockdown that had them at home for fam- Monroe and presiding judge in the Mu- ily Tik Tok challenges, Netflix binging nicipal Court of Loganville, is simultane- and bake-offs with their parents.
66 GEORGIA BAR JOURNAL Although the title is outwardly focused, “If You Did …” is primarily an inward sur- vey of Duff’s acceptance and celebration of the collection of quirks, physical ailments and foibles that make her, her. There is a certain calm in the eye of the storm that comes with knowing the good, bad and Expand your ugly of yourself, and being just fine with it. That includes a penchant for making up words, avoiding the doctor at all costs, an network. Join a unredeemable taste for grits and Vegemite, and a pre-planned funeral. Duff is her full State Bar Section. self in the uniquely odd glory for which we should all strive. We get a panoramic view of how Duff sees herself, her place in her family and her place in the world. In turn, The State Bar of Georgia’s 52 sections this approach leaves her free to appreciate provide newsletters, programs and the the sweet ridiculousness of life. chance to exchange ideas with other With a run time of more than two practitioners. Section dues are very hundred pages, “If You Did ...” teeters on affordable, from $10-35. Join one (or more) the verge of too much navel gazing. How- today by visiting www.gabar.org > Our ever, the good natured tone and relatable Programs > Sections. Questions? Contact observations pull it back from the ledge. Sections Director Mary Jo Sullivan at It provided a delightful mental break from [email protected]. the heavy realities of the concerns with which we have all grappled during lock- down. Plus, if there was ever a time for a story about a grown-up in a Wonder Woman onesie, now is the time! l
Roxann Sherri Smithers is a founder and managing member of Smithers + Ume- Nwagbo, LLC. Smithers’ practice includes commercial litigation, premise liability, construction, contract review/negotiation and general counsel services in various state/ federal jurisdictions. She is also a registered mediator, focusing on business disputes.
2021 APRIL 67 GBJ | ICLE
Spring Into ICLE Livestreams
The pandemic grounded ICLE livestreams temporarily. But just like spring, ICLE livestreams have returned with fresh content for your learning and viewing pleasure. BY MICHELLE E. WEST
There is nothing like spring ... being that May is here, remember two impor- If you were admitted during the spring, enamored by the crisp morning air, the tant causes: Mental Health Awareness and please look for your $25 Bar anniversary trees and flowers bringing forth new Well-being Week in Law (WWIL) for- discount email. You can take advantage of blooms, and the varying shades of natu- merly known as Lawyer Well-Being Week. this promotion when you register for an ral color everywhere. Spring signals new WWIL promotes inclusivity, awareness ICLE webcast during your Bar anniver- beginnings, renewal and rebirth. The and engagement in well-being across the sary month. As outlined in the Supreme pandemic grounded us temporarily. But profession. WWIL occurs annually dur- Court of Georgia’s order dated Dec. 3, just like spring, ICLE livestreams have re- ing the first week of May, which this year 2020, Bar members may continue to fulfill turned with fresh content for your learn- was May 3-7. However, I encourage you their CLE requirements online through ing and viewing pleasure. to incorporate wellness throughout the the extended grace period of May 31, Livestream programming resumed in year. It is important to align your life with 2021. Remember, ICLE’s full library of April, so refresh this spring with engag- your values. webcast programs can be found by visit- ing real-time content from the comfort If you are looking for content that ing www.gabar.org/webcasts. of your home or office. Use this oppor- coincides with the occasion and sup- Please continue to be safe. We will con- tunity to correspond directly with the ports your wellness journey, then check tinue to reassess the evolving health situa- presenters and pose your burning ques- out our on-demand webcast options, tion and provide future updates regarding tions that I am sure you will have given Living Well to Practice Well, www. new programming. ICLE values the vol- our new content, including: gabar.org/practice-well, and Attor- unteer efforts of all chairs and speakers, l Real Property Law Institute | May 13 | ney First Aid Kit, www.gabar.org/ and appreciates your continued under- www.gabar.org/real-property-institute attorneyfirstaidkit. For further informa- standing as we work through our current tion and an array of resources on well- reality. Protecting the health and safety l Workers’ Compensation for the being, visit the State Bar’s wellness page of our speakers, employees and members General Practitioner | May 21 | www. at www.lawyerslivingwell.org, and the continues to be our paramount concern. gabar.org/workers-comp-gp Institute for Well-Being in Law at www. Questions? Please contact ICLE at l Restrictive Covenants and Trade lawyerwellbeing.net. [email protected]. l Secrets | June 17 | www.gabar.org/ As you look for ways to fulfill CLE re- restrictivecovenants quirements while continuing to practice Michelle E. West l Social Security Law Institute | July 23 | social distancing, visit the State Bar’s web- www.gabar.org/socialsecurity site for a complete list of ICLE livestreams Director, Institute of Continuing and webcasts. Fresh and timely webcast Legal Education Stay tuned for additional livestreams State Bar of Georgia content is also periodically added to throughout the spring and summer. Now ICLE’s online program offerings. [email protected]
68 GEORGIA BAR JOURNAL ICLE WEBCASTS Below is a list of webcasts that correspond with programs ICLE typically administers in April and May. You can view these titles online now, along with all available webcasts, at www.gabar.org/webcasts.
Administrative Law and Georgia DUI Update State Government Law Handling Big Cases for Attorneys Jury Trials in Divorce ADR In The Workers’ Compensation Arena Not Your Everyday Custody Case ADR Institute and 2019 Neutrals’ Conference Nuts and Bolts of Family Law Building Winning Appeal Personal Injury Law Clinics Issues Into Social Security Professionalism, Ethics Disability Cases and Malpractice Civil Prosecutions of DUI Real Property Foreclosure & Dram Shop in Georgia Residential Real Estate Commercial Real Estate Secrets to a Successful Construction Law For Plaintiff’s Personal The General Practitioner Injury Practice Defense of a Personal Social Security Law Institute Injury Case Title Standards Family Law Seminar VA Accreditation Georgia Auto Insurance Claims Law
#STAYWELL GBJ | Notices
Proposed Amendment to the Uniform Rules for Superior Court
At its business meeting on Jan. 21, 2021, the Council of Should you have any comments on the proposed amend- Superior Court Judges approved a proposed amendment ment, please submit them in writing to the Council of Superior to Uniform Superior Court Rule 39. A copy of the pro- Court Judges at 18 Capitol Square, Suite 104, Atlanta, Georgia posed amendment may be found at the Council’s website at 30334, or email them to [email protected]. To be con- http://georgiasuperiorcourts.org. sidered, comments must be received by Friday, July 16, 2021.
Wherever you are, stay updated at gabar.org.
Visit gabar.org for the most up-to-date information on committees, members, courts and rules.
70 GEORGIA BAR JOURNAL RESOURCE CENTER
The State Bar of Georgia can help you do pro bono! • Law practice management support on pro bono issues • Professional liability insurance coverage • Free or reduced-cost CLE programs and webinars • Web-based training and support for pro bono cases • Honor roll and pro bono incentives
Visit www.gabar.org / www.GeorgiaAdvocates.org.
Get published. Earn CLE credit.
The Editorial Board of the Georgia Bar Journal is in regular need of scholarly legal articles to print in the Journal. Earn CLE credit, see your name in print and help the legal community by submitting an article today.
Submit articles to Jennifer R. Mason: Assistant Director of Communications [email protected] | 404-527-8761 104 Marietta St. NW, Suite 100, Atlanta 30303
2021 APRIL 71 GBJ | Classified Resources
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PRACTICE FOR SALE Are you attracting A well-established business immigration law practice (20+ years) in metro-Atlanta area offered for sale. Prospec- tive buyer is either a larger firm seeking to add immigration the right audience practice or a business immigration practice expanding its client base. Serious inquiries only and no brokers. Please send contact for your services? details [email protected].
POSITION WANTED Hull Barrett, PC is hiring an associate attorney to assist with our litigation practice in our Augusta and Evans offices. Geor- gia Bar required. Those with experience in depositions and in the courtroom are preferred. The ideal candidate will be Advertisers are discovering a fact well known highly organized, detail-oriented and work well without direct to Georgia lawyers. If you have something to communicate to the lawyers in the state, be sure supervision. Please submit a cover letter and resume to Richard that it is published in the Georgia Bar Journal. Whitlock at [email protected]. Contact Ashley Stollar at 404-527-8792 or [email protected].
72 GEORGIA BAR JOURNAL The time to act is now.
Suicide Awareness & Prevention If you or someone you know are The State Bar of Georgia’s suicide awareness campaign has a dual contemplating suicide, call purpose, directed toward lawyers and judges who are suffering from 800-327-9631 today. anxiety and depression and may be at risk for suicide, as well as all Bar members, who need to recognize the severity of the problem Learn more at gabar.org/ and be able to identify warning signs among our colleagues. suicideawareness. 2021 State Bar of Georgia ANNUAL MEETING
ISLE OF PALMS, SOUTH CAROLINA
June 10-13 | Isle of Palms, South Carolina HYBRID MEETING Registration details will be available online at www.gabar.org.