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For more information about Fastcase and smarter legal research, visit us at fastcase.com. Quick Dial Editorial Board Attorney Discipline 800-334-6865 Editor-in-Chief ext. 720 404-527-8720 Timothy Jerome Colletti Consumer Assistance Program 404-527-8759 Members Conference Room Reservations 404-419-0155 Julia Anderson Lynn Gavin Fee Arbitration 404-527-8750 Donald P. Boyle Jr. Chad Henderson CLE Transcripts 404-527-8710 Diversity Program 404-527-8754 Jacqueline F. Bunn Michelle J. Hirsch ETHICS Helpline 800-682-9806 John Clay Bush Eric Hooper 404-527-8741 David Gan-wing Cheng Kristin M.S. Poland Georgia Bar Foundation/IOLTA 404-588-2240 Georgia Bar Journal 404-527-8791 James William Cobb Addison Johnson Schreck Governmental Affairs 404-526-8608 Jacob Edward Daly Mark W. Wortham Lawyer Assistance Program 800-327-9631 Bridgette E. Eckerson Pamela Y. White-Colbert Law Practice Management 404-527-8773 Law-Related Education 404-527-8785 James Evans Membership Records 404-527-8777 Meetings Information 404-527-8790 Editors Emeritus Pro Bono Project 404-527-8763 Professionalism 404-225-5040 Bridgette E. Eckerson, 12-15 Stephanie B. Manis, 93-95 Sections 404-527-8774 Robert R. Stubbs, 10-12 William L. Bost Jr., 91-93 Transition Into Law Practice 404-527-8704 Donald P. Boyle Jr., 07-10 Charles R. Adams III, 89-91 Unlicensed Practice of Law 404-527-8743 Young Lawyers Division 404-527-8778 Marcus D. Liner, 04-07 L. Dale Owens, 87-89 Rebecca Ann Hoelting, 02-04 Donna G. Barwick, 86-87 Manuscript Submissions The Georgia Bar Journal welcomes the submission of unsolic- Marisa Anne Pagnattaro, 01-02 James C. Gaulden Jr., 85-86 ited legal manuscripts on topics of interest to the State Bar of D. Scott Murray, 00-01 Jerry B. Blackstock, 84-85 Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 pages, double-spaced (includ- William Wall Sapp, 99-00 Steven M. Collins, 82-84 ing endnotes) and on letter-size paper. Citations should con- Theodore H. Davis Jr., 97-99 Walter M. Grant, 79-82 form to A UNIFORM SYSTEM OF CITATION (19th ed. 2010). Please address unsolicited articles to: Tim Colletti, State Bar of L. Brett Lockwood, 95-97 Stephen E. Raville, 77-79 Georgia, Communications Department, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303. Authors will be notified of the Editorial Board’s decision regarding publication. Officers of the State Bar of Georgia The Georgia Bar Journal welcomes the submission of news Robert J. “Bob” Kauffman President about local and circuit bar association happenings, Bar Patrick T. O’Connor President-Elect/Treasurer members, law firms and topics of interest to attorneys in Georgia. Please send news releases and other informa- Patrise M. Perkins-Hooker Immediate Past President tion to: Sarah I. Coole, Director of Communications, 104 Brian D.“Buck” Rogers Secretary Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: 404-527-8791; [email protected]. John R. B. Long YLD President Disabilities Jennifer Campbell Mock YLD President-Elect If you have a disability which requires printed Sharri Edenfield YLD Immediate Past President materials in alternate formats, please contact the ADA coordinator at 404-527-8700 or 800-334-6865. Communications Committee Headquarters Peter C. Canfield Co-Chair 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 Sonjui L. Kumar Co-Chair 800-334-6865, 404-527-8700, FAX 404-527-8717 Visit us on the Web at www.gabar.org. Communications Staff Coastal Georgia Office 18 E. Bay St., Savannah, GA 31401-1225 Sarah I. Coole Director 877-239-9910, 912-239-9910, FAX 912-239-9970 Jennifer R. Mason Assistant Director South Georgia Office Stephanie J. Wilson Communications Coordinator 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Lauren M. Foster Administrative Assistant 800-330-0446, 229-387-0446, FAX 229-382-7435 Publisher’s Statement The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (February, April, June, August, October, December) with a special issue in November by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303. Copyright State Bar of Georgia 2015. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in Atlanta, Georgia and additional The opinions expressed in the Georgia Bar Journal mailing offices. Opinions and conclusions expressed in articles herein are those of the authors and not necessarily those of the are those of the authors. The views expressed herein Editorial Board, Communications Committee, Officers or Board are not necessarily those of the State Bar of Georgia, of Governors of the State Bar of Georgia. 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GBJ Legal Departments 12 4 From the President Reducing Cyber-Anxiety: 8 From the YLD President Insurance Coverage for 44 Bench & Bar Cyber Risks Office of the General 24 by John L. Watkins 50 Counsel GBJ Features 52 Lawyer Discipline 24 56 Law Practice Management The 25th Annual Georgia Bar 58 South Georgia Office Media & Judiciary Conference 60 Pro Bono by Stephanie J. Wilson 62 Section News 56 30 64 Member Benefits 2015 Georgia Corporation 66 Writing Matters and Business Organization 68 Professionalism Page Case Law Developments In Memoriam by Michael P. Carey 72 74 CLE Calendar 38 76 Notices Georgia Legal Services Program 87 Classified Resources ”And Justice for All“ Advertisers Index 60 Honor Roll of Contributors 88

66 See details on the 2016 Annual Meeting on the back cover of this issue. From the President

by Robert J. “Bob” Kauffman Photo by Zach Porter Photography Strategic Plan Focuses on Bar’s Present and Future Priorities

t our Midyear Meeting in January, the After the Executive Committee decided during the 2014-15 Bar year that we needed to engage in strategic Board of Governors of the State Bar of planning, we enlisted the assistance of all Bar members by asking you to complete an online survey related to Georgia voted to the priorities you believe are A most important for the State Bar give final approval to what is “The resulting strategic plan to continue effective service to the legal profession, the justice believed to be the first strate- for 2016-2018 is focused on system and the public. Your responses were vital to steer- gic plan since the unified State five major areas identified as ing our planning team toward those priorities at the outset of Bar was created in 1964. As I our positioning statements, the process. The plan was then developed reported early in the process, by countless hours of effort on which describe how the Bar the part of the Bar’s leader- the development of a strategic ship, staff and Long Range will respond to key trends Planning Committee mem- plan is largely a recognition bers—along with our outside impacting our success as consulting firm, Leadership that, like the rest of the world, Strategies. It was shaped into an organization.” final form with valuable contri- our profession has seen many butions from a diverse collection of stakeholder groups, including members of the changes over the past 52 years, necessitating a compre- judiciary, providers of legal services, lawyer-members of the General Assembly, representatives of the news hensive review of where we are today and a vision of media and Bar members from throughout the state. As one of our top initiatives for the Bar’s current fiscal how the State Bar should operate in the future. year, the strategic planning process went into high gear

4 Georgia Bar Journal last August with an initial brief- strive to improve and promote Access to Justice ing to the Executive Committee, our system of professional dis- We have an obligation to pro- Board of Governors, Long Range cipline and provide the funding vide and promote access to justice Planning Committee and key support and other resources need- throughout Georgia for those with staff members. In September and ed to make those improvements. unmet legal service needs. We will October, those groups reconvened Additionally, we will develop a explore private and public funding to assess the current situation relat- non-disciplinary system for inter- options and encourage Bar mem- ed to the Bar’s programs and ser- vention with respect to mentally bers to provide criminal and civil vices, discuss specific strategies to impaired lawyers. pro bono services and contribute to be included in the plan and review Specific objectives for this strate- legal services organizations. the plan with input from the Board gy include shortening the time peri- Our plan seeks, over a three- of Governors. od between the filing of a grievance year period, a 10 percent increase In November, the Executive and the resolution of that grievance, in public funding for access pro- Committee met once more to make decreasing the overall number of grams, a 20 percent increase in final adjustments to the strategic grievances filed each year and lim- member funding for those pro- plan, resulting in the version pre- iting the unlicensed practice of law grams and doubling the percent- sented to the Board of Governors (UPL) as measured by the number age of members who contribute to for adoption in January. of UPL cases filed annually. Priority access programs from the current The resulting strategic plan for strategies include: 8 percent to 16 percent. Priority 2016-2018 is focused on five major strategies include: areas identified as our position- n Supporting the Disciplinary ing statements, which describe Rules Committee in its efforts to n Promoting increased state and how the Bar will respond to key revise rules in order to stream- federal funding for criminal and trends impacting our success as line the process and address civil legal access programs. an organization. transparency and implement n Encouraging the incorporation appropriate recommendations. of access to justice as part of Regulation of Practice n Publicizing the outcome of suc- CLE in general. An effective disciplinary process cessful UPL cases to inform n Promoting and developing is important to both the legal pro- the public and increase public additional access to justice ini- fession and the public. We will awareness of UPL. tiatives in addition to the rec-

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April 2016 5 ommendations of the Civil n Recommending an approach service to the public; to improve Legal Services Task Force. for adapting to changes in the the administration of justice; and delivery of legal services. to advance the science of law. Lawyer Wellness n Working with the Bar sections I invite you to review the plan on Too many lawyers are experi- to increase awareness, visibility the Bar’s website and send me your encing high levels of stress and are and value of Section CLEs. feedback on any ideas you have to unhealthy and unhappy, adverse- help address these priority areas ly affecting their professional and The Importance of and meet our goals. The plan can be personal lives. We will expand our Our Role found at www.gabar.org/upload/ promotion of health and wellness StateBarStrategicPlan_final.pdf. among our members and staff, We need to promote the impor- including the development of tance of a unified Bar and its Robert J. “Bob” Kauffman is work/life balance CLE programs, programs to the public and our president of the State Bar of and increase awareness of exist- members. We will make the public Georgia and can be reached at ing Bar programs that deal with aware of the State Bar and what [email protected]. such issues. we do. We will also review all of A key objective for the lawyer our programs to make sure we are wellness strategy will be an overall providing services that are appro- increase in the percentage of mem- priate and relevant to meeting our Earn up to 6 CLE bers who, in survey responses, indi- members’ needs, while eliminating cate that State Bar resources have those that are not. credits for authoring enhanced their professional and/ We will conduct surveys to legal articles and or personal lives. We also want this measure and seek increases in the effort to result in a higher number percentage of the public having having them of Bar members who participate a positive view of the legal sys- published. in the Law Practice Management tem and the percentage of Georgia program, CLEs, Lawyer Assistance lawyers who have a positive Submit articles to: Program and the new wellness ini- view of the State Bar. The prior- Timothy Colletti tiative over the next three years. ity strategy here is to improve Georgia Bar Journal Priority strategies include: communications with the public 104 Marietta St. NW about the disciplinary system and Suite 100 n Developing recommended pro- its outcomes. grams and services to better Those of us in Bar leadership Atlanta, GA 30303 enhance members’ professional are looking forward to focusing Contact [email protected] and personal lives. on each of the priorities set forth for more information n Educating members about ser- in the plan. Each priority strategy vices and resources that can task has been assigned to one or visit the Bar’s website, enhance their law practice. or more specified Bar officers, www.gabar.org. committee members, staff depart- Integrating New ment or Bar section to oversee Delivery Methods and conduct. We will be monitoring the suc- The delivery of legal services cess of the plan at each Executive is changing, and more people are Committee meeting to determine if relying on self-help services. We we are indeed doing what we said will inform the public of the ben- we would do. On a quarterly basis, efits of using lawyers and the risks we will review whether we are get- of some alternatives, while embrac- ting the results we want to get. At ing and integrating the effective each Annual Meeting, the plan will use of technology. be updated and possibly adjusted Improving and awarding CLE to ensure that we reach our targets credit for technology training is in each priority area, and an annual a key part of a comprehensive report will be presented. goal to provide effective practice This plan shows that Georgia tools and educational resources to lawyers are committed to the pur- enhance lawyer competency and poses of the Bar: to foster among ensure continued competence. the members of the Bar of this Priority strategies include: state the principles of duty and

6 Georgia Bar Journal WWW. GABAR. ORG

visit www.gabar.org for the most up-to-date information on committees, members, courts and rules. From the YLD President

by John R. B. “Jack” Long Thoughts on Civility and Professionalism Amongst Lawyers

few weeks ago, at the end of several Perhaps this is just the standard way of practice in smaller legal communities like Augusta. I’d like to think long days in court, a lawyer and I shook it is the case more often than not in a state which has many of the best and brightest lawyers in the country. hands and congratulated each other on So what exactly is civility and professionalism? We A teach it in all of Georgia’s law schools. My alma mater a case well tried. It was the has been at the forefront of conveying the subject; all end of much contested litiga- “It’s time for us as a Mercer students have been required to take a course ded- tion, where both sides brought profession to re-examine what icated to promoting the principles of professionalism and complex, well thought and com- professionalism and civility rules of ethics since before I started my 1L year. The sub- pelling legal arguments to the really mean, and how we can ject of ethics in the practice of law in Georgia is, to a large court. One party left disappoint- better instill their fundamental extent, guided by our rules of professional conduct. But ed; the other reveling in victory. professionalism and civility principles in our membership.” have always been something But at the end of the day, two folks have a hard time specifically defining—it’s more or lawyers stood in a courtroom, less a basic application of the proverbial Golden Rule. We have our Lawyer’s Creed which gives an overview both exhausted from that week’s fight, packing up boxes of how we should act. “Just Be Nice” is probably too unsophisticated; I suppose you just have to know of now disorganized case files, and each perfectly ready to civility when you see it. Some states like our neighbors in South Carolina have gone so far as to develop still acknowledge the other as a friend and colleague before standards of professionalism, articulating basic tenets of civility such as “[a] lawyer should accede to all rea- heading home for the weekend for a much needed break. sonable requests for scheduling, rescheduling, cancel-

8 Georgia Bar Journal lations, extensions and postpone- ments that do not prejudice the client’s opportunity for full and fair consideration and adjudication of the client’s claim or defense.”1 When I passed the bar exam nearly a decade ago and decided to dive head first into solo prac- The Georgia High School Mock Trial tice, my father and other local Program would like to express our lawyers who had given me advice and counsel gave stern warnings sincerest gratitude to the Georgia legal about what they grimly referred to as “The ’Lanta Lawyer.” The community for their support during the grave, Southern drawl with which 2016 season. the phrase rolled off the tongue automatically gave a negative More than 500 Georgia attorneys and judges gave a connotation. The loosely defined tremendous amount of their time serving local schools as term for opposing counsel gener- attorney coaches for one of the 134 teams who registered ally meant someone who would for the season. be a nightmare to work with: the lawyer who would send reams Nineteen attorneys and judges (and their staffs) spent of letters to your office without numerous hours preparing for and conducting the regional the basic courtesy of a phone call, and district competitions this past spring. We thank not only engage in petty disputes over dis- them for their time, but their firms (and families) as well, for covery or administrative matters; in summary, someone who simply giving them this time to make these competitions happen. could not be trusted. More often Lastly, we thank the hundreds of attorneys and judges than not, these folks hailed from across the state that served as evaluators or presiding the direction west of Augusta up Interstate 20. judges for our competitions. During the season, we had Now, I realize that probably 60 to find enough volunteers from the legal community to fill percent of those of you reading 334 courtrooms for all levels of the competition. this column are from the metro- The result is that more than 1,770 high school students had the Atlanta area, and by no means am I suggesting that members of our opportunity to compete in one of the most public programs of the Bar who live in the big city dem- State Bar of Georgia. Without your support, they would not have onstrate the principles of civility had this opportunity. and professionalism any less as a whole than those who practice The 2016 State Champion Team is from elsewhere. But basic math tells you that if most Georgia lawyers live Jonesboro High School in Jonesboro. in or around Atlanta and a certain percentage of all lawyers are “bad The State Champion Team will represent Georgia at the apples” so to speak, that a far great- National High School Mock Trial Championship er concentration of uncivil lawyers in Bosie, ID, May 13-14. will be in the metro area than elsewhere. Hence, the phrase “’Lanta For more information about the program or to make a donation to the state Lawyers” has stuck here locally champion team to support their participation at nationals, for lawyers who aren’t civil to each please contact the mock trial office: other; it’s a phrase which those of 404-527-8779 or toll free 800-334-6865 ext. 779; us in Augusta (and probably also Email: [email protected] Macon, Savannah, Valdosta and other smaller communities) know all too well. Not long after starting my practice I encountered my first one. I was representing a woman in an employment dispute, the defense

MT_Apr16.indd 1 3/21/2016 12:34:53 PM April 2016 9 of which found its way to a large disproportionately targets young at lunch. In the larger geographic Atlanta firm, which I will not name lawyers who are perceived as a scope of practice, however, I recog- here. Almost immediately, I was threat to an older, less technologi- nize that this is not always the case. sent no less than a dozen letters cally savvy generation. The impor- To my friends and colleagues griping about petty issues which tant lesson is that our responses not who have been patient with me could have been easily resolved engage on the bully’s level. this year as I have been inundated over the phone, and even threat- It still happens from time to with Bar-related travel to Atlanta ened with a baseless motion for time. Most recently, an obnoxious and elsewhere, I thank you for sanctions. Though it was a mere liti- “’Lanta Lawyer” objected to a being so accommodating. To the gation tactic for opposing counsel leave of court I filed. I had sought few who haven’t and have played to put pressure on early settlement the leave not for some great family the part of the bully or “’Lanta of a case, as a young lawyer, it was vacation I have yet found the time Lawyer,” you’re missing out on extremely stressful for me. The les- to take, but primarily to ensure cultivating the relationships that son I learned from the experience I didn’t have a conflict with the are so meaningful in this profes- was a valuable one although not many upcoming State Bar Board sion. However, I thank you both new or complicated: simply put, of Governors, YLD or Executive for inspiring me to write this col- some lawyers are just bullies. The Committee events I was sched- umn on this important subject. It’s bully lawyer is just like the kid on uled to be at over the past year. time for us as a profession to re- the grammar school playground— Fortunately, the leave was granted examine what professionalism and they only listen to one thing and by a judge who was supportive of civility really mean, and how we that is the people who will stand my work with the Bar, but only can better instill their fundamen- up to them. Sometimes, you have to after demanding opposing coun- tal principles in our membership. draw a line in the sand and be pre- sel appear in person at a hear- Here’s food for thought: is it now pared to deliver the consequences ing to articulate his objections. A time that Georgia consider adopt- promised if and when it is crossed. certain judicial assistant has since ing formal standards of civility I’m not sure why some lawyers explained to me that such matters and professionalism like those of feel the need to play the part of are best scheduled for 8 a.m. or 5 our neighbors in South Carolina the bully. Perhaps it is a combina- p.m., when the sun is unbearable and elsewhere? tion of personal insecurity, lack of during the two hour drive on I-20. an understanding of the law on a For the most part here locally Endnote particular matter and a reluctance our lawyers are civil and conge- 1. S.C. Bar Standards of to do the job in a manner our pro- nial with one another. We police Professionalism 7.5. fession commands. Maybe it’s just bad conduct amongst ourselves, a total failure on the intimidating and generally have amicable rela- John R. B. “Jack” Long is the lawyer’s part to have the maturity tionships. I find myself excited to president of the Young Lawyers to develop civil relationships with receive a notice of appearance from Division of the State Bar of opposing counsel which ultimately some lawyers, who I know I can Georgia and can be reached at result in better, cost efficient reso- trust and will probably be able to [email protected]. lutions for clients. This conduct resolve a matter over the phone or

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10 Georgia Bar Journal The 2016 LOCAL & VOLUNTARY BAR ACTIVITIES AWARDS

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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, please visit www.gabar.org

A Look at the Law

Reducing Cyber-Anxiety: Insurance Coverage for Cyber Risks

by John L. Watkins

n Nov. 10, 2015, prosecutors in or interesting enough for cyber threats, or that they do not possess the type of information New York and Atlanta unsealed sought by cyber criminals. However, an insurance industry expert recently reported that 50 indictments accusing three men percent of businesses reported being the victim O of a cyber attack, and that 60 percent of recent and hundreds of accomplices of stealing data attacks struck small and medium-sized businesses.4 Although the specific statistics may be on more than 100 million people from a national debatable, it is beyond dispute that small and medium-sized businesses also face cyber risks. bank and other companies and a host of related Typical Cyber Risks crimes.1 Unfortunately, such announcements Although a comprehensive catalog of cyber risks is beyond the scope of this article, the most have become routine, with a national retailer common ones include the following: reporting in 2013 that 40 million debit and credit n theft or exposure of personally identifiable information (PII) of customers, users or cards were compromised in a breach.2 Even the employees;5 n denial of, or limiting access to, computer federal government cannot keep the most sensi- resources; n exposure of a business’ own confidential tive data secure, and it recently announced a information or trade secrets; n exposure of a third party’s confidential breach affecting the information of 21.5 million information or trade secrets; n risks posed by viruses, Trojans or malware; persons contained in security clearance files main- and n ransomware.6 tained by the Office of Personnel Management.3 Resulting Losses and Claims As huge cyber breaches become routine, Cyber risks can result in substantial loss- many businesses and organizations believe— es directly to a business (first-party loss) as with a false sense of security—they are not big well as liability claims by others (third-par-

April 2016 13 ty claims). Some of the poten- on that system to operate, lack of Whether a cyber-related claim tial losses and claims include access may result in a claim for will be covered under a traditional the following. lost income or profit. A customer’s business policy depends on many own customers may be affected and factors, including the basis of the First-Party Losses demand refunds or compensation, claim and the policy language. As A data breach or other cyber all of which may in turn be passed a general matter, however, it may event likely will cause a business on as additional claims. Statutes be difficult to find coverage under to incur substantial costs. These may provide separate or overlap- traditional policies. The insurance costs may include fees of computer ping statutory remedies. industry is moving quickly to adopt forensic experts to determine the The scope of the risk of third- new policy endorsements aiming to extent and source of the breach; party claims depends in large curtail or eliminate such coverage. fees of computer experts to restore part on the nature of the busi- data and electronic files; legal fees ness and the number of poten- Coverage Under CGL for determining legal obligations tially affected persons. Businesses Policies and strategies; costs of notify- handling large amounts of con- ing potentially affected persons sumer or health information are Traditional CGL policies are (required by many statutory pro- naturally at greater risk. Large usually written on forms prepared visions); costs of establishing and businesses with PII for many per- by the Insurance Services Office maintaining call centers to answer sons can expect a plethora of indi- (ISO), an organization that pre- inquiries from affected persons; vidual claims as well as potential pares form policy language used costs of third-party credit monitor- class action litigation by affected by the insurance industry. CGL ing and related services; costs of users7 and other affected parties.8 policies have two primary grants hiring media and public relations Publicly traded companies face of coverage: Coverage A and consultants; costs of repairing or additional risks, as a data breach Coverage B. Coverage A provides replacing computers, drives and not only exposes a company to coverage for damages the insured other hardware; and costs of ran- the aforementioned liabilities, but is legally obligated to pay “because som payments. may also expose the company to of ‘bodily injury’ or ‘property In addition to these potentially shareholder lawsuits. damage.’”10 Coverage B provides significant costs, a cyber event may coverage for damages the insured well put a company out of business Other Potential Liabilities is legally obligated to pay for “perfor a significant period of time. The Breaches often attract the inter- sonal and advertising injury.”11 resulting loss of business income est of regulators and other govern- These coverages are discussed in may be substantial. Further, a mental authorities. At a minimum, more detail below. company may incur unplanned a business may need to respond to extra expenses in attempting to subpoenas and other requests for Coverage A resume business. information, which can be costly. Damages Because of “Bodily Injury” Governmental actors may seek to Third-Party Claims require the business to undertake “Bodily injury” is defined to Many potential third-party claims responsive action and may also mean “bodily injury, sickness or may result from cyber events. For impose fines and penalties. disease sustained by a person, example, if a cyber attack results in including death resulting from any unauthorized access to a person’s Coverage Under of these at any time.”12 Most cyber bank account or credit card, there Traditional Business claims to date have not involved may be direct monetary loss. If a physical injury, but it is certainly virus damages a customer’s com- Policies possible that a plaintiff could allege puter or server, there may be a claim A business facing a cyber-based suffering severe emotional distress for replacing tangible property. If a first-party loss or a third-party claim as a result of disclosure of sensi- third party’s confidential informa- should immediately evaluate possi- tive PII. However, Georgia case tion and trade secrets are disclosed ble coverage under all of its existing law indicates that purely emotional as a result of a cyber event, the third business policies. These will gener- harm does not constitute “bodily party has a potentially substantial ally include a commercial general injury” under a CGL policy.13 claim for the resulting damages. liability (CGL) policy and a com- There is growing concern, how- Such a claim might be based on mercial property insurance policy. ever, about cyber attacks affecting breach of a non-disclosure agree- Businesses and their counsel should not only information, but the oper- ment, negligence or trade secret stat- remember that insurers frequently ation of machinery, equipment and utes. If a customer relies on access attempt to deny claims—particular- vehicles. Wired magazine recently to the affected party’s computer ly in Georgia—for late notice, and reported that hackers were able to system or information maintained should thus act diligently.9 gain remote control of a late-model

14 Georgia Bar Journal Jeep Cherokee, even to the point losses appear to be economic. In “publication” requires disclosure of disabling the car’s transmission other contexts, the Georgia courts to a third party. Some courts have and brakes.14 There are also con- have ruled that purely economic found no such requirement, rul- cerns about cyber attacks affect- loss is not property damage.19 As ing, in essence, that “publication” ing, for example, utilities and the noted, however, there are growing can reasonably mean transmit- power grid. If such incidents occur, concerns about cyber attacks caus- tal, such as the transmission of an they will likely lead to claims for ing physical damage, so it is cer- unwanted message to the claimant, bodily injury. In such instances, tainly possible there will be more and that no third-party disclosure coverage for damages because of cyber claims involving damages to is required.26 Other courts have bodily injury, subject to possible tangible property. found the publication requirement exclusions, would come into play. not satisfied in other contexts.27 Coverage B One of the most closely watched Damages Because of “Property Coverage B typically provides recent cases finding no publication Damage” that the insurer “will pay those is Recall Total Info. Mgmt. v. Fed. Ins. “Property damage” is generally sums that the insured becomes Co.,28 in which IBM had contracted defined in CGL policies to mean legally obligated to pay because of with Recall to store computer tapes (a) “Physical injury to tangible ‘personal and advertising injury’ containing PII of IBM employees. property, including all resulting to which this insurance applies.”20 Recall subcontracted with a trans- loss of use of that property,” or “Personal and advertising injury” portation company to transport (b) “Loss of use of tangible proper- is then defined to mean injury, the tapes to its facility. As further ty that is not physically injured.”15 including consequential bodi- explained by the court, “During Further, “for the purposes of this ly injury, arising out of certain transport, a cart containing the insurance, electronic data is not enumerated “offenses.” In the tapes fell out of the back of the van tangible property,” with electronic cyber context, the most important near a highway exit ramp. The par- data including “information, facts “offense” has been: “e. Oral or ties agree that approximately 130 or programs stored as or on, creat- written publication, in any manner, of the tapes were removed from ed or used on, or transmitted to or of material that violates a person’s the roadside by an unknown per- from computer software, including right of privacy.”21 son and never recovered. The lost systems and applications software, Insureds have sometimes tapes contained employment-relat- hard and floppy disks, CD-ROMs, obtained coverage under Coverage ed data for some 500,000 past and tapes, drives . . . or any other media B for the violation of a “right of present IBM employees including which are used with electronically privacy” offense for data breach- social security numbers, birthdates controlled equipment.”16 es22 and for claims involving the and contact information.29 Despite the “electronic data” unwanted receipt of electronic IBM immediately took steps to limitation in the definition of communications, including unso- notify the affected employees. IBM “property damage,” insureds have licited faxes, telephone calls and also established a call center, and had some success in seeking cover- spam email.23 Some courts have provided credit monitoring ser- age. The Eighth Circuit recently distinguished between violations vices for those affected. IBM spent found coverage in a case alleging of privacy involving the disclo- more than $6 million on these the defendant’s web-based adver- sure of private information, or efforts, and charged the amount tising services had caused the secrecy, such as in a data breach, back to Recall. Recall settled with claimant’s computer to be “taken and violations involving intrusion the transportation company, which over and could not operate,” to upon seclusion (or the right to be assigned its rights under its insur- freeze up and to “stop running or left alone), such as claims involv- ance policies to Recall.30 Recall operate so slowly” that it would, ing unsolicited communications. then sought to recover under the in essence, become inoperable.17 Some courts have accepted that the policies, specifically seeking cover- The court found that there was no “right of privacy” offense is limited age for personal and advertising damage to the computer itself, but to violations involving secrecy and injury based on the “right of pri- that there was coverage under the not seclusion.24 Other courts have vacy” offense.31 However, because second part of the policy definition rejected this distinction, in part there was no evidence that the for “loss of use of tangible property because “privacy” has at least these information on the tapes had been that is not physically injured.”18 two meanings and is not defined in accessed or disseminated, the court There is, however, little indica- CGL policy forms.25 denied coverage because of fail- tion in the case law that many Insurers have tried to avoid cov- ure to establish “publication.”32 As cyber-related claims are being erage by arguing that there was no the court explained, “The plaintiffs covered under CGL policies as “publication” of material violating contend that the mere loss of the property damage. Currently, most a person’s right of privacy. Courts tapes constitutes a publication, and damages regarding reported cyber have been divided on whether has alleged that the information

April 2016 15 was published to a thief. The plain- Summary Regarding was, however, rejected by another tiffs have failed to cite any evidence Potential CGL Coverage district court in a different con- that the information was published text and there is other authority to and thereby failed to take their alle- CGL policies may provide cover- the contrary.42 gation beyond the realm of specu- age for certain types of cyber-relat- lation. . . . As the complaint and ed claims although the result is far Other Potential Coverages affidavits are entirely devoid of from certain and may depend upon Insureds facing cyber-related facts suggesting that the personal whether the insurer has adopted claims will also want to consid- information actually was accessed, one of the newer endorsements er possible coverage under other there has been no publication.”33 specifically designed to restrict or policies they may have purchased. The opinion was recently affirmed eliminate CGL coverage for cyber Again, coverage will vary depend- and adopted by the Supreme Court risks. If there is potential CGL ing upon the nature of the claim of Connecticut.34 Whether this coverage, it is well worth pursu- and the policy language. Insureds analysis—which could be disputed ing, if only for the defense obli- may, however, find coverage under based on other case law—will be gation, meaning that the insurer professional liability (E&O) poli- accepted in Georgia or other states is obligated to appoint and pay cies,43 directors and officers liabil- remains to be seen. for counsel to defend any claim ity (D&O) policies,44 or crime and that may be covered.39 Under most fidelity policies.45 ISO Acts to Restrict CGL policies (as opposed to many CGL Coverage other policies), defense costs do Specific Cyber Coverage not reduce policy limits available Having previously issued more to pay judgments or settlements.40 Background limited endorsements, ISO began Thus, potential CGL coverage can There is no doubt that the insur- in 2012 to publish endorsements be very valuable in responding to ance industry is trying to restrict seeking to limit drastically or com- a cyber-related claim. There is little coverage for cyber losses under pletely eliminate any cyber cov- doubt, however, that the industry traditional business insurance erage under CGL policies. An is acting to restrict CGL coverage. policies and to require insureds endorsement is an amendment to to purchase separate cyber cover- the policy that can either expand, Coverage Under Other age. Although the additional cost or, as in this case, restrict or elimi- Traditional Policies of purchasing cyber coverage is nate coverage.35 Insurance compa- bad news for insureds, the good nies may or may not choose to add Insureds facing a cyber-related news is that this separate cover- endorsements to their policies. claim may find coverage under age is currently widely available A form endorsement issued in other traditional types of commer- for most businesses. A leading 2012 simply eliminated the “priva- cial coverage. The results, however, industry consultant reporting as cy” offense from the personal and are not uniform, and businesses of mid-2015 surveyed more than advertising definition.36 In 2013, ISO should not assume that such cover- 30 insurers offering cyber cover- issued an endorsement form elimi- age will necessarily respond. age, including well-known carri- nating coverage under Coverage A ers such as Zurich, ACE, Chubb, and Coverage B for damages arising Property Insurance AIG, Hartford and Travelers.46 The from “any access to or disclosure Insureds have had some suc- consultant reported that, although of any person’s or organization’s cess seeking coverage for first- rates are rising for larger insureds, confidential information or personal party cyber-related losses under particularly retail and health care information, including . . . [specific commercial property insurance. companies, the market is attractive examples] or any other type of non- Under a policy insuring against for small and medium-sized com- public information,” or the “loss of “[a]ll Risks of direct physical loss panies, with policies available at use of, damage to, corruption of, or damage from any cause,” an competitive rates.47 inability to access, or inability to Arizona federal district court con- There is no standard cyber pol- manipulate electronic data,” with a cluded that the temporary loss of icy. Many cyber offerings are sold limited exception for “bodily inju- functionality of computers result- as a package combining first-party ry.”37 An alternative form eliminates ing from a loss of custom settings and third-party coverages, which even the bodily injury exception.38 It due to a power outage was cov- may be attractive to many insureds. is unclear whether these provisions ered. The court found that “physi- Cyber coverage may also be sold would exclude coverage for dam- cal damage” “is not restricted to in conjunction with other coverages for bodily injury or property the physical destruction or harm ages, such as professional liability damage caused by attacks on life of computer circuitry but includes coverage, media tech coverage or safety systems or vehicle controls, loss of access, loss of use, and loss D&O coverage. The policy word- but they certainly raise concerns. of functionality.”41 This reasoning ing differs among carriers, which

16 Georgia Bar Journal can make it difficult to compare es. Conducting the analysis may limits. Again, although listed as a coverage and make purchasing expose vulnerabilities that can be third step, the application process cyber insurance difficult. There are, reduced or eliminated. The anal- may also be viewed as part of the however, some general guidelines ysis should also assist in deter- company’s risk assessment. The that can be helpful. mining what coverages are “must application process can itself be First, as a prospective purchas- have,” “nice to have” or optional. helpful in identifying risks and er of cyber insurance, a business Second, the business needs to reducing them.48 needs to analyze its potential risks engage an agent or broker with thoroughly. At a minimum, this experience in its industry and with Example of a Specific Cyber will entail a detailed review of the experience in placing cyber cover- Policy company’s IT systems (or those age. Although this need is stated as Although cyber policy forms vary maintained by third parties such a second step, in practice the agent in their wording and scope, analysis as cloud providers), use of por- may be engaged before the risk of an offering by a prominent insurer table devices and media and secu- analysis or while the risk analysis helps illustrate with greater specifici- rity procedures. The company will is being performed. Experienced ty what is available in the market. The also need to conduct an analysis of agents may have resources that can ACE DigiTech® Digital Technology the particular cyber threats most be brought to the table during the & Professional Liability Insurance likely to affect its particular line risk analysis. Policy (the “ACE Specimen Policy”) of business, which may require a Third, the business needs to provides a package of cyber-relat- review of other systems that are follow the application process. ed coverages, some for third-party electronically controlled, such as Agents advise that the application liabilities and others for first-party payment, security, HVAC, manu- process can range from a relative- losses.49 As is the case with some facturing, etc. ly short questionnaire for a small other cyber insurance forms, the To this end, a business may use or medium-sized business seek- insuring agreements are facially its internal personnel or engage ing to place a cyber policy with simple and fairly broad but require counsel or consultants. Engaging low policy limits ($1 million to $2 referring back to defined terms, with counsel to coordinate the analy- million) to an extensive, intrusive some defined terms relying on other sis (and, if necessary, to engage and detailed process for compa- defined terms. Reviewing the cover- consulting experts) may help nies in high-risk industries seek- age thus can become a somewhat preserve potential legal privileg- ing to place coverage with large complicated exercise. You Try Cases – We Appeal Them State and Federal Criminal Appellate and Post-Conviction Representation Over thirty years combined experience in Successful State and Federal: • Motions for New Trial • Appeals • Habeas Corpus • Parole Petitions • Responsible and Respectful Ineffective Assistance of Counsel Claims ~ ~ ~ When It’s Time for a Change, Contact Law Firm oF Shein & BrandenBurg 2392 N. Decatur Road, Decatur, Georgia 30033 404-633-3797 April 2016www.federalcriminallawcenter.com 17 The ACE Specimen Policy has Another important coverage protected under a non-disclosure two cyber-related third-party lia- in the ACE Specimen Policy is agreement is of great potential bility coverages of particular inter- Coverage D, which provides: value to many businesses. est. First, Coverage C provides: In addition, the ACE policy D. Privacy Liability includes additional coverages for C. Network Security Liability errors and omissions in provid- The Insurer will pay Damages ing technology services or tech- The Insurer will pay Damages and Claims Expenses by reason nology products to others,63 for and Claims Expenses by reason of a Claim first made against media liability for certain claims of a Claim first made against the Insured during the Policy arising from the insured’s elec- the Insured during the Policy Period and reported to the tronic content (such as product Period and reported to the Insurer pursuant to Section disparagement, trade libel, plagia- Insurer pursuant to Section VIII, Notice, for any Wrongful rism, piracy and certain intellec- VII, Notice, for any Wrongful Acts taking place after the tual property violations),64 and for Acts taking place after the Retroactive Date and prior to extortion threat.65 The policy also Retroactive Date and prior to the end of the Policy Period.58 provides first-party coverage for the end of the Policy Period.50 “Data Breach Expenses,” includ- For this coverage, a “Wrongful ing computer forensics, consumer The bolded terms are defined in Act” is defined to mean the fail- notification expenses, the cost of the Definitions section. That secure of the insured, or an inde- engaging a public relations or cri- tion takes up six of the 18 pages pendent contractor for whom the sis management firm, and credit of the policy form and contains 42 insured is legally responsible to monitoring services,66 as well as defined terms.51 To break down properly “handle, manage, store, other coverage. this coverage, “Damages” include destroy, or otherwise control Other carriers offer similar poli- compensatory damages, but gen- . . . Personal Information.”59 A cies, although the specific provi- erally do not include taxes, fines, “Wrongful Act” for this coverage sions and wording vary, includ- penalties, sanctions, disgorgement also includes an “unintentional ing Zurich,67 AIG68 and Chubb.69 of profits, costs of complying with violation of the Insured’s privacy As in the ACE Specimen Policy, injunctive relief and liquidated policy” that results in a violation of cyber coverage is often provided in damages, along with other limita- a “Privacy Regulation.” “Personal various “coverage parts.” The par- tions.52 “Claims Expenses” gener- Information” includes information ticular coverage parts purchased ally include reasonable attorney’s that would identify an individual, will affect the scope of coverage. fees and expert witness fees.53 A health care data, credit or debit card Further, products may be with- “Claim” generally means a written information, and other informa- drawn or amended, or may be mar- demand for monetary or non-mon- tion, including non-public personal keted only to companies of a par- etary damages, a civil proceeding information defined in “Privacy ticular size. Some carriers may not or an arbitration proceeding.54 Regulations,” but not including write coverage for all industries. “Wrongful Acts” are defined sep- information lawfully available arately for different coverages pro- to the general public.60 “Privacy Potential Problems and vided in the policy. For Coverage Regulations” include a number Pitfalls in Cyber Policies C, they include any error, misstate- of specifically identified statutes, Insureds should be aware of ment, misleading statement, act, including HIPPA, Gramm-Leach- potential problems and pitfalls in omission or breach of duty resulting Bliley, other acts and “other similar cyber policies. This section will pro- in a “failure of ‘Network Security.’”55 state, federal, and foreign identity vide a non-exhaustive list of key “Network Security” means activities theft and privacy protection legis- issues to consider carefully. In con- performed by the insured, or oth- lation. . . .”61 Wrongful Acts also sidering these pitfalls, it is impor- ers on its behalf “to protect against include improper handling or man- tant to remember that cyber cover- unauthorized access to, unauthor- agement of third-party corporate age is largely negotiable and that a ized use of, a denial of service attack information specifically identified good broker or agent may be able to directed against, or transmission as confidential and protected under secure more favorable terms. of unauthorized software code to, a non-disclosure agreement.62 “Claims Made” Coverage the Insured’s Computer System.”56 As can be seen from this sum- Limitations The “Insured’s Computer System” mary, the ACE Specimen Policy includes those owned, leased or should provide broad protection Cyber coverage tends to be writ- operated by the insured, or oper- for third-party liability claims for ten on “claims made” policy forms. ated for the benefit of the insured by a wide variety of breaches and pri- “Occurrence” based policies, such a third-party service provider under vacy violations. The protection for as most CGL policies, provide cov- written contract.57 disclosure of business information erage based on events happening

18 Georgia Bar Journal during the policy period regard- n Claims for “bodily injury” or find its way into cyber poli- less of when the claim is asserted, “property damage.” Most cyber cies.79 If a cyber attack resulted even if years later. “Claims made” policies exclude coverage for in the failure of manufactur- policies generally cover only claims “bodily injury” or “property ing, HVAC or other systems first made during the policy peri- damage,”73 probably on the that resulted in the discharge od (or, if applicable, the extended assumption that such claims of “pollutants,” a carrier could reporting period). Claims made will be covered by the CGL use the pollution exclusion to policies also typically have a “ret- policy. Although the CGL try to avoid coverage. This pos- roactive date,” or “retro date,” and policy should respond, it may sibility is particularly troubling provide that, if a claim is based on have been endorsed to elimi- for Georgia and other states acts or omissions occurring before nate cyber-related coverage which have applied the pollu- the retro date, there is no cover- for bodily injury or property tion exclusion to bar coverage age even if the claim is made dur- damage.74 The potential gap is for accidents that have nothing ing the policy period. Accordingly, significant, as there is growing to do with environmental pol- the retro date limits coverage for concern about cyber attacks on lution, such as injuries result- liabilities arising from acts occur- automobiles, medical devices, ing from the discharge of caring before that date, and the gen- generators or other devices that bon monoxide from furnaces.80 eral nature of claims made policies may result in bodily injury or Other Issues Potentially Limiting limit coverage for claims made property damage.75 Coverage after the policy period or extended n Claims resulting from acts of war reporting period. or terrorism by governmental or There are many other issues that If a claims made policy is renewed, non-governmental entities. Some insureds, their agents and brokers typically the new renewal policy cyber policies have adopted should consider in purchasing will cover claims going forward, exclusions from general liability cyber coverage. but gaps can arise if the policy is not policies seeking to avoid cover- renewed or if the insured changes age for claims or losses resulting n Limitations on “damages.” carriers. Accordingly, securing the from acts of war or terrorism.76 Although not stated to be an most generous retro date possible Given that certain well-known exclusion, cyber policies may is important. It is also important to cyber attacks were allegedly define the “damages” they cover manage liability for claims going perpetrated by government in a manner that limits coverage. forward either through a renewal or actors,77 businesses should seek For example, the ACE Specimen the purchase of an extended report- cyber coverage without such Policy defines “Damages” to ing period (sometimes referred to as exclusions. mean “compensatory damages” “tail” coverage).70 n Claims resulting from the (presumably not covering puni- insured’s criminal or fraudu- tive damages), and provides Exclusions lent acts. Most policies have that “Damages” do not include All insurance policies have an exclusion for claims result- most taxes or fines, or “penal- exclusions, and it is important to ing from criminal or fraudu- ties of any nature . . . arising consider exclusions that may dras- lent acts.78 Fortunately, many by contract.”81 Such a definition tically limit the scope of cyber cov- policies require an actual con- may limit coverage, for example, erage. Here is a non-exhaustive list viction or guilty plea before for private fines assessed after of exclusions of concern: the exclusion applies. Policies a breach pursuant to Payment may also contain “separation of Card Industry (PCI) standards.82 n Claims resulting from failure insureds” provisions or other n Sublimits. It is increasingly com- to follow “minimum practices.” language protecting innocent mon for insurers to write poli- Some, but not all, cyber policies insureds from losing coverage cies providing “additional cov- contain exclusions for failure due to the bad acts of oth- erages” for particular types of to follow “minimum practices” ers. Businesses should seek the claims with low sublimits. Not listed in the insured’s applica- most generous provisions. only may low sublimits under- tion, or for failure to apply soft- n Other exclusions. There are mine the value of the “addition- ware patches or other security other exclusions that may be al coverage,” carriers may argue measures. One insurer recently significant. Exclusions should that the “additional coverage” filed suit against an insured be evaluated based on the demonstrates that the claim is based on such exclusions seek- insured’s particular business not covered under other more ing to recoup payments the risks. For example, one of the general grants of coverage in insurer had advanced to settle insurance industry’s favorite the same policy with higher lim- a breach.71 This case is being exclusions is the “absolute pol- its, even though such logic may closely watched.72 lution exclusion,” which may be questionable.83

April 2016 19 n Coverage for contractors and cloud sions begin to come—which policy provisions need to be care- providers. Many businesses out- they will shortly—uncertainty fully considered and negotiated. source their information tech- will continue for an extended Although there are unknowns nology to contractors, includ- period of time because of dif- regarding how carriers will treat ing cloud providers. Ensuring ferences in policy language. cyber coverage claims and how that the cyber policy extends courts will react, the high level of coverage to breaches caused Conclusion risk makes cyber coverage a must by such parties when act- Despite the seemingly unceas- for many businesses. ing on behalf of the insured ing reports of cyber breaches and is important. attacks, most businesses—par- John L. Watkins is a n Unknowns. In addition to con- ticularly small and medium-sized partner in the Atlanta cerns raised by policy language, businesses—are only beginning office of Thompson there are many unknowns to assess cyber risk management, Hine LLP. He practices about cyber coverage. Because including their insurance resources. in the areas of there have been relatively few The insurance industry is generally commercial litigation claims under the new coverage acting to limit coverage for cyber with a focus on insurance forms, it is largely unknown risks under traditional policies. At how insurance company claims the same time, insurers have made coverage and business law, departments will, as a practical cyber coverage available for sev- including helping clients evaluate matter, handle cyber-related eral years in non-standard policies. insurance coverage and manage claims. Similarly, there has been Although such coverage is well risk. He also teaches the Insurance almost no litigation involving worth considering, most business- Law course as an adjunct professor the new policy forms, so it es have little experience in the area. at the University of Georgia School is uncertain how courts will It is important to engage an experi- of Law, where he graduated respond to claims under these enced agent or broker and counsel summa cum laude in 1982. policies. Even when the deci- if necessary. Exclusions and other

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20 Georgia Bar Journal Endnotes Agent in Charge of the Cyber and includes software, even though 1. See, e.g., Nicole Hong, Massive Counterintelligence Program in the many lay persons would likely FBI’s Boston office). draw a distinction between data Cybertheft Scheme Is Alleged, Wall 7. See, e.g., Michael Fainberg et and software. See id. at 16. St. J., Nov. 11, 2015, at A1. 2. See, e.g., Kelly Clay, Forty Million al., Arent Fox LLP, Federal judge 17. Eyeblaster, Inc. v. Fed. Ins. Co., 613 Target Customers Affected By Data approves target’s $10 million F.3d 797, 802 (8th Cir. 2010). settlement for consumer class action 18. Id. at 801-02. The court concluded, Breach, Forbes (Dec. 18, 2013, 5:57 PM), http://www.forbes.com/ lawsuit over 2013 data breach, “The plain meaning of tangible sites/kellyclay/2013/12/18/ Lexology (Mar. 30, 2015), http:// property includes computers, millions-of-target-customers-likely- www.lexology.com/library/ and the Sefton complaint alleges affected-by-data-breach. detail.aspx?g=fe17fdba-d883-4208- repeatedly the ‘loss of use’ of his 3. See, e.g., Ellen Nakashima, Hacks 87ce-0fa10c50f3b2 (discussing computer. We conclude that the of OPM databases compromised 22.1 preliminary approval of consumer allegations are within the scope of million people, federal authorities say, class action settlement with the General Liability policy.” Id. at national retailer regarding large 802 (citing Am. Online, Inc. v. St. Wash. Post (July 9, 2015), https:// www.washingtonpost.com/news/ credit card breach). Paul Mercury Ins. Co., 207 F. Supp. federal-eye/wp/2015/07/09/ 8. See, e.g., Joseph Ax, U.S. judge 2d 459, 470 (E.D. Va. 2002) (finding hack-of-security-clearance-system- certifies class action over Target loss of use of tangible property affected-21-5-million-people- Corp data breach, Reuters (Sept. when complaint alleged that AOL federal-authorities-say/. 15, 2015, 5:27 PM), http://www. caused loss of use of computers 4. Patricia L. Harman, 50% of small reuters.com/article/2015/09/15/ and computer functionality, but businesses have been the target of a us-target-lawsuit-databreach-idU concluding no coverage existed SKCN0RF2GG20150915#K0PM because allegations were otherwise cyber attack, Property Casualty 360° (Oct. 7, 2015), http:// yBeHcxcfWL8O.97 (reporting excluded), aff’d, 347 F.3d 89 (4th www.propertycasualty360. on certification of class action by Cir. 2003); State Auto Prop. & Cas. com/2015/10/07/50-of-small- banks against national retailer Ins. Co. v. Midwest Computers businesses-have-been-the-target- related to large credit card breach). & More, 147 F. Supp. 2d 1113, of-a-c?page=4&page_all=1 9. John L. Watkins, Insurance Law, in 1116 (W.D. Okla. 2001) (“Because (quoting Tim Francis, Enterprise Georgia Business Litigation 2016, a computer clearly is tangible Leader for Cyber Insurance at 533, 537-538 (ALM 2015) (Robert property, an alleged loss of use of Travelers Insurance). C. Port ed.) (hereinafter cited as computers constitutes ‘property 5. PII (used in the generic sense Georgia Business Litigation). damage’ within the meaning of and not in reference to particular 10. ISO Policy Form CG 00 01 04 13 at 1 plaintiff’s policy.”)). legislation or regulations) broadly (2012) (reprinted in K. Abraham and 19. E.g., Se. Color Lithographers v. includes information that can be D. Schwarcz, Insurance Law and Graphic Arts Mut. Ins. Co., 164 Ga. used to identify or communicate Regulation 439 (2015)) (hereinafter App. 70, 71, 296 S.E.2d 378, 380 with an individual, including (but cited by the form number). (1982) (no coverage for damages not limited to) the following: full 11. ISO Form CG 01 04 13 at 6. resulting from alleged breach of name, home address, passport 12. Id. at 13. employment contract); see also number, email address, telephone 13. E.g., Presidential Hotel v. Canal Georgia Business Litigation at number, driver’s license number, Ins. Co., 188 Ga. App. 609, 611, 373 547-48. social security number, credit S.E.2d 671, 672 (1988) (“Used in an 20. ISO Form CG 00 01 04 13 at 6. card number, date of birth and insurance policy, the term ‘bodily 21. ISO Form CG 00 01 04 13 at 15. birthplace. injury’ means just that—‘bodily 22. E.g., Travelers Indem. Co. of Am. 6. “Ransomware” infects a computer injury.’ It pertains to physical v. Portal Healthcare Solutions, and encrypts files so that they injury to the body. It does not LLC, 35 F. Supp. 3d 765, 771- cannot be accessed unless the include non-physical, emotional 72 (E.D. Va. 2014) (finding victim pays a fee (a ransom) for or mental harm.”); Bates v. Guar. duty to defend under policies a decryption code. Ransomware Nat’l Ins. Co., 223 Ga. App. 11, 13, providing coverage for “electronic appears to be a growing problem. 476 S.E.2d 797, 799 (1996); Transp. publication of material that ... One FBI agent recently made Ins. Co. v. Selective Way Ins. Co., gives unreasonable publicity to a headlines after saying that the No. 1:11-cv-01383-RWS, 2012 U.S. person’s private life” or “electronic FBI often simply advises paying Dist. LEXIS 163007, at *27 n.5, *28- publication of material that ... the ransom. See John Zorabedian, 29, 2012 WL 5605002, at *10 n.5 discloses information about Did the FBI really say “pay up” for (N.D. Ga. Nov. 13, 2012). a person’s private life” when ransomware? Here’s what to do…, 14. Andy Greenberg, Hackers Remotely defendant allegedly provided Kill a Jeep on the Highway—With access to underlying plaintiffs’ Naked Security by Sophos (Oct. 28, 2015), https://nakedsecurity. Me In It, Wired (July 21, 2015, medical records on the Internet; sophos.com/2015/10/28/ 6:00 AM), http://www.wired. finding “publication” requirement did-the-fbi-really-say-pay- com/2015/07/hackers-remotely- satisfied by making records up-for-ransomware-heres- kill-jeep-highway/. available to public); Tamm v. what-to-do/ (quoting Joseph 15. ISO Form CG 00 01 04 13 at 15. Hartford Fire Ins. Co., No. 02-0541- Bonavolonta, Assistant Special 16. Id. at 15-16. Notably, the policy BLS2, 2003 Mass. Super. LEXIS definition of “electronic data” 214, at *11, 2003 WL 21960374, at

April 2016 21 *3, 4, 16 Mass. L. Rep. 535 (Mass. ambiguous and to be construed business interruption coverage Super. Ct. July 9, 2003) (allegations against insurer). under property insurance when that insured consultant accessed 27. E.g., Creative Hospitality Ventures, disgruntled employee installed email accounts of former customer Inc. v. U.S. Liab. Ins. Co., 444 Fed. hacking programs that allowed and its executives and sent them to App’x 370, 376 (11th Cir. 2011) him to destroy the insured’s former customer’s outside counsel (providing a receipt to credit card data; stating there “is no question “satisfies both prongs under the customer with impermissible that NMS suffered damage to its invasion of privacy clause of the personal information is not property, specifically, damage to policy”; finding that transmission “publication”; “[t]he receipt is the computers it owned”). to former customer’s own a contemporaneous record of a 42. See Am. Online, Inc. v. St. Paul counsel satisfied “publication” private transaction between ETL Mercury Ins. Co., 207 F. Supp. 2d requirement). and the customer, and ETL neither 459, 469-70 (E.D. Va. 2002) (CGL 23. E.g., Hooters of Augusta, Inc. v. broadcasted nor disseminated policy); Ward Gen. Ins. Servs., Inc. Am. Global Ins. Co., 272 F. Supp. the receipt or the credit card v. Employers Fire Ins. Co., 114 Cal. 2d 1365, 1372-73 (S.D. Ga. 2003) information to the general App. 4th 548, 556-57, 7 Cal. Rptr. (finding, in Telephone Consumer public”); Ticknor v. Rouse’s 3d 844, 851 (2003), as modified on Protection Act (“TCPA”) case, that Enters., LLC, 2 F. Supp. 3d 882, denial of reh’g (Jan. 7, 2004) (“We right to privacy encompasses right 896 (E.D. La. 2014) (following conclude the loss of the database, to be left alone, including “being Creative Hospitality Ventures, no with its consequent economic loss, left alone at work by advertisers “publication” for printing credit but with no loss of or damage to sending unsolicited faxes,” and card receipt to customer); see tangible property, was not a ‘direct finding “that a TCPA violation Travelers Prop. Cas. Co. of Am. physical loss of or damage to’ may constitute an invasion of v. Kan. City Landsmen, L.L.C., covered property under the terms privacy within the meaning of 592 Fed. App’x 876, 884-85 (11th of the subject insurance policy, and, [the] policy”), aff’d, 157 Fed. App’x Cir. 2015) (parties agreed “that the therefore, the loss is not covered.”). 201 (11th Cir. 2005); Valley Forge term ‘publication’ contemplates 43. Eyeblaster, Inc. v. Fed. Ins. Co., Ins. Co. v. Swiderski Elecs., Inc., dissemination to at least someone 613 F.3d 797, 804 (8th Cir. 2010) 223 Ill. 2d 352, 369, 370-79, 860 other than the person who (finding duty to defend under N.E.2d 307, 312 (2006) (holding, provided the card information”). technology errors and omissions in case involving unsolicited 28. Recall Total Info. Mgmt. v. Fed. policy); St. Paul Fire & Marine Ins. faxes under TCPA, that “[t] Ins. Co., 147 Conn. App. 450, 463- Co. v. Compaq Comput. Corp., 539 he language of the ‘advertising 64, 83 A.3d 664, 672-73 (2014). F.3d 809, 816 (8th Cir. 2008) (same). injury’ provision is sufficiently 29. Id. at 453-54, 83 A.3d at 667-68. 44. First Bank of Del., Inc. v. Fid. & broad to encompass the conduct 30. Id. at 454, 83 A.3d at 668. Deposit Co. of Md., No. N11C- alleged in the complaint”; opinion 31. Id. at 461, 83 A.3d at 670. 08-221, 2013 Del. Super. LEXIS includes extensive collection of 32. Id. at 462, 83 A.3d at 672. 465, at *15, 2013 WL 5858794, at cases); Valley Forge Ins. Co. v. 33. Id. *6 (Del. Super. Ct. Oct. 30, 2013) Swiderski Elecs., Inc., 259 Ill. 34. See Recall Total Info. Mgmt. v. Fed. (finding coverage for losses from App. 3d, 872, 880-883, 886-87, 834 Ins. Co., 317 Conn. 46, 115 A.3d data breach under “Electronic Risk N.E.2d 562, 569-572, 574-75 (2005) 458 (2015). Liability” coverage part under (intermediate appellate court 35. Ross v. Stephens, 269 Ga. 266, 269, D&O policy). decision in Valley Forge; collecting 496 S.E.2d 705, 708 (1998). 45. E.g., Retail Ventures, Inc. v. cases and noting that the majority 36. ISO Form CG 24 13 04 13 (2012). Nat’l Union Fire Ins. Co., 691 of federal cases have found 37. ISO Form CG 21 06 05 14 (2013). F.3d 821, 831-32, (6th Cir. 2012) claims involving both secrecy and 38. ISO Form CG 21 07 05 14 (finding coverage for $6.8 million seclusion fall within definition of (2013). Another endorsement in damages caused by a hacking “privacy”; construing “privacy” applies only to Coverage B and incident under a computer fraud to include violations of seclusion); excludes coverage for disclosure rider to a crime policy). Sawyer v. West Bend Mut. Ins. of a person’s or organization’s 46. See Richard S. Betterley, The Co., 343 Wis. 2d. 714, 729, 821 confidential or personal Betterley Report: Cyber/Privacy N.W.2d 250, 258 (2012) (right of information. See ISO Form CG 21 Insurance Market Survey 2015 privacy includes both seclusion 08 05 14 (2013). (hereinafter cited as “Betterley”). and secrecy interests). 39. For a more detailed discussion of This report, which contains 24. E.g., Auto-Owners Ins. Co. v. the defense obligation, see Georgia summary information regarding Websolv Computing, Inc., 580 F.3d Business Litigation at 538-39, 564-70. policy provisions, is available for 543, 550 (7th Cir. 2009) (Iowa law). 40. Georgia Business Litigation at 539. purchase at www.irmi.com). 25. See supra cases cited in note 20. 41. Am. Guar. & Liab. Ins. Co. 47. Id. at 8. 26. Valley Forge, 259 Ill. App. at 885-86, v. Ingram Micro, Inc., No. 48. See Angela Stelmakowich, Demand 834 N.E.2d at 573-74 (collecting 99–185-TUC-ACM, 2000 U.S. for cyber insurance on the rise, going cases; “Thus, contrary to Insurers’ Dist. LEXIS 7299, at *6, 2000 through the due diligence process has assertion, there is no requirement WL 726789, at *2 (D. Ariz. Apr. great value, Canadian Underwriter that the scope of ‘publication’ be 18, 2000); accord NMS Servs. v. (Sept. 30, 2015, 10:19 AM), http:// limited to material sent to a third Hartford, 62 Fed. App’x 511, www.canadianunderwriter.ca/ party”; alternatively, finding term 514 (4th Cir. 2003) (claim for news/demand-for-cyber-insurance-

22 Georgia Bar Journal on-the-rise-going-through-the- at http://www.chubb.com/ 77. Devlin Barrett, FBI Says North due-diligence-process-has-great- businesses/csi/chubb13765.pdf Korea Behind Sony Hack, Wall St. value/1003825184/?&er=NA (last visited Mar. 9, 2016). J. (Dec. 19, 2014, 1:03 PM), http:// (“‘You absolutely have to go 70. Professional liability (malpractice) www.wsj.com/articles/fbi-says- through the due diligence process coverage is almost always north-korea-behind-sony-hack- for your firm,’ [AIG Canada written on a claims made basis. 1419008924?alg=y. President and CEO Lynn] Oldfield Accordingly, professional liability 78. See ACE Specimen Policy at 8 emphasized, suggesting that coverage is also subject to these (Exclusion A). just completing the evaluation general concerns. 79. See ACE Specimen Policy at 9 process brings with it value and 71. See Complaint for Declaratory (Exclusion N). information.”). Judgment & Reimbursement of 80. See, e.g., Reed v. Auto-Owners 49. The ACE Specimen Policy is Defense & Settlement Payments, Ins. Co., 284 Ga. 286, 667 S.E.2d 90 available at http://www.acegroup. Columbia Cas. Co. v. Cottage (2008). com/us-en/assets/ace-digitech- Health Sys., No. 2:15-cv-03432- 81. ACE Specimen Policy at 2-3 declaration-policy-specimen.pdf DDP-AGR (C.D. Ca. May 7, 2015), (Definition I). (last visited Mar. 9, 2016). ECF No. 1. 82. See PCI Noncompliant Consequences, 50. ACE Specimen Policy at 1 72. The ACE Specimen Policy has Focus On PCI, http://www. (emphasis in original). an exclusion based on the “lack focusonpci.com/site/index. 51. See id. at 1-7. of performance” of software php/pci-101/pci-noncompliant- 52. Id. at 2-3. programs “due to the expiration consequences.html (last visited 53. Id. at 2. or withdrawal of technical Mar. 9, 2016). 54. Id. support by the software vendor.” 83. E.g., CIMCO Commc’ns, Inc. v. 55. Id. at 7. Ace Specimen Policy at 10 Nat’l Fire Ins. of Hartford, 407 56. Id. at 4. (Exclusion T). Although the Ill. App. 3d 32, 37, 943 N.E.2d 276, 57. Id. scope of this particular exclusion 281 (2011) (additional coverage for 58. Id. at 1. is debatable, it is potentially “extended business income” read 59. Id. at 7. significant. As of April 2015, to limit coverage for more general 60. Id. at 4-5. one publication reported that coverage for “business income,” 61. Id. at 5. as many as 250 million users even though court conceded 62. Id. at 7. were using the Windows the insured’s interpretation 63. See id. at 1, 6 (Coverage A and XP operating system, which of business income insuring definition of “Wrongful Act” for Microsoft ceased supporting in agreement was reasonable). Coverage A). 2014. See Scott Bekker, Windows 64. See id. at 1, 6-7 (Coverage B and XP Usage Still Strong at 250 Million definition of “Wrongful Act” for Users, Redmond Mag. (Apr. 8, Coverage B). 2015) https://redmondmag. 65. See id. at 1, 3, 7 (Coverage F, com/articles/2015/04/08/ definitions of “Extortion Expenses” windows-xp-usage.aspx. and “Network Extortion Threat, Microsoft has warned that XP and definition of “Wrongful Act” users are vulnerable and has for Coverage F). urged them to switch to newer, 66. See id. at 1, 3 (Coverage E and supported systems. See Support definition of “Data Breach for Windows XP ended April Expenses”). 8th, 2014, Microsoft, https:// 67. A specimen Zurich Security www.microsoft.com/en-us/ and Privacy Protection Policy WindowsForBusiness/end-of-xp- is available at https://www. support (last visited Mar. 9, 2016). zurichna.com/_/media/ 73. E.g., ACE Specimen Policy at 8 dbe/zna/docs/kh/sp/ (Exclusion B). securityandprivacypolicysample. 74. See ISO Form CG 21 07 05 14 For the most up-to-date pdf (last visited Mar. 9, 2016). (2013). 68. A specimen AIG Cyberedge 75. See supra note 13 regarding information on lawyer Security and Privacy Liability hack of Jeep Cherokee; see also discipline, visit Insurance Policy is available at Alexandra Ossola, Hacked Medical http://www.aig.com/Chartis/ Devices May Be the Biggest Cyber www.gabar.org/forthepublic/ recent-discipline.cfm internet/US/en/SECURITY%20 Security Threat in 2016, Popular AND%20PRIVACY%20 Sci. (Nov. 23, 2015) http://www. COVERAGE%20SECTION%20 popsci.com/hackers-could- 101024%20(12-13)%20SRP%20 soon-hold-your-life-ransom-by- Coverage%20Parts_tcm3171-661710. hijacking-your-medical-devices. pdf (last visited Mar. 9, 2016) 76. E.g., ACE Specimen Policy at 69. A specimen Chubb Forefront 9 (Exclusion S) (“arising or Portfolio 3.0 CyberSecurity attributable to acts of war”; “acts Coverage Part is available of foreign enemies”).

April 2016 23 GBJ Feature

The 25th Annual Georgia Bar Media & Judiciary Conference

by Stephanie J. Wilson

n Friday, Feb. 26, attorneys, media

professionals and judges met at the O State Bar of Georgia for the 25th annual Georgia Bar Media & Judiciary Conference. Just as in years past, the 2016 conference proved to be an exciting day full of sessions covering timely topics impacting the First Amendment. Many thanks to CNN and all the sponsors for their support of this annual symposium.

For a complete list of sponsors, see page 27. Uncovering and Covering Georgia Photo by Stephanie J. Wilson Police Shootings “The Story of a College Football Fix” moderator (and Alabama fan) Hank Klibanoff displays a commemorative Bear Bryant Coca-Cola Moderator bottle while sporting his Crimson Tide hat. n Ken Foskett, Senior Editor for Investigations, Atlanta The conference kicked off with a look behind the Journal-Constitution scenes with the investigative team that reported “Over the Line.” Last year, the team—made up of Panelists data specialists and journalists from the Atlanta n Jeff Ernsthausen, Data Specialist, Atlanta Journal- Journal-Constitution and WSB-TV—built an online Constitution database of the 184 police shootings that have n Jodie Fleischer, Investigative Reporter, WSB-TV occurred in Georgia since 2010. This comprehensive n Jennifer Peebles, Data Specialist, Atlanta Journal- compilation is the first of its kind, and the resulting Constitution data provides an alarming glimpse into the ever- n Brad Schrade, Investigative Reporter, Atlanta rising tension between police and the public they are Journal-Constitution sworn to serve and protect.

24 Georgia Bar Journal The most compelling images the audience witnessed were from dash cam footage of the police shooting of Caroline Small. In June 2010, the Brunswick mother of two was shot by Glynn County Police Sgt. Robert C. Sasser and Officer Michael T. Simpson after her car was pinned between a Georgia State Patrol car, a Glynn County Police car and a utility pole following a four-mile, low-speed chase. The officers, who claimed to fear for their lives, fired seven shots through the windshield of Small’s Buick. Small was unarmed. She never regained consciousness and died one week later. A grand jury cleared the officers of any wrongdoing. Neither officer Crime Scene Photo was ever disciplined. Caroline Small’s Buick was pinned between a Georgia State Patrol car, a Glynn County Police car and a utility pole. Glynn County Police Sgt. Robert C. Sasser and Officer Michael T. Simpson Atlanta Journal-Constitution fired seven shots through the windshield. Small died one week later, having never regained investigative reporter Brad consciousness. Neither officer was ever disciplined. Schrade and WSB-TV investigative reporter Jodie Fleischer Gray. Sandra Bland. These are just as well as citizen review panels. reviewed “thousands of pages a few names of those whose deaths Unfortunately, most citizens lack of court records, police files and came at the hands of law enforce- an understanding of the specific GBI documents associated with ment or while in police custody. aspects of law enforcement work. the shooting death of Caroline Police morale is at an all-time low, The panel agreed that citizen Small” and conducted multiple and tension between peace offi- review panels should be complete- interviews. To read more about cers and citizens is rising steadily. ly independent of police depart- Caroline Small’s story and the 183 The second panel of the conference ments. They should be made up of other Georgia police shootings, focused on how that tension is professionals who understand how please visit http://investigations. changing the way police approach policing is done—trained people myajc.com/overtheline. and views their jobs. with expertise. There are approximately 800,000 The View from the Street sworn police officers in the United 21st Century Public of the Cop on the Beat States. They work to protect citizens Housing?: Covering the against the violence that terrorizes Moderator some communities. Some are armed Continuing Construction n Ed Bean, Senior Vice with body cameras. Atlanta Police of Atlanta’s Sports President and Editor, Poston detective Ken Allen believes that Stadiums Communications peace officers should have body cams. Fulton County Sheriff Ted Moderators Panelists Jackson is in agreement. He stated n Jonathan Ringel, Managing n Ken Allen, President, Local 623, that roughly one-third of Fulton Editor, Daily Report International Brotherhood of County deputies have body cam- n Ron Thomas, Director, Journalism Police Officers eras—the funds for which come and Sports Program, Morehouse n Steve Gaynor, President, Lodge not from citizens, but from inmates. College #13, Fraternal Order of Police He said that body cams can “de- n Dan Grossman, Law Office of escalate an incident and lead to Panelists Daniel J. Grossman increased professionalism.” n Lisa Cupid, Commissioner, n Ted Jackson, Sheriff, Fulton When asked how officers feel Cobb County County about members of the public pho- n Dan Klepal, Reporter, Atlanta n Lance J. LoRusso, LoRusso Law tographing or filming them, the Journal-Constitution Firm panelists said it all depends on n Bruce Seaman, Associate how they have been trained to Professor of Economics, Andrew Eric Garner. Michael Brown. react. Pictures and videos can be Young School of Policy Studies, Tamir Rice. Walter Scott. Freddie important tools for accountability, Georgia State University

April 2016 25 County and the Braves. Cupid, one of the panelists, said, “I don’t make my decisions on whether or not they will be controversial.” Unbeknownst to the rest of the commission, Chairman Tim Lee had Seyfarth Shaw partner Dan McRae working and negotiating with the Braves on behalf of the county. This fact was news to County Attorney Deborah Dance as well. In her role as county attorney, Dance has the responsibility for hiring outside legal counsel. Following these rev- elations, a pall was cast over all the stadium dealings. Soon after Atlanta Journal-Constitution reporter Dan Klepal began covering the SunTrust Park stadium deal, Chairman Lee Photo by Stephanie J. Wilson Frog County Superior Court Judge “Lawless Stevens” (played by Western Circuit Superior Court quickly stopped returning his Judge Lawton Stephens) puts an empty chair on trial when the defendant failed to appear phone calls. during the “Judging the Judges” session. The Story of a College Football Fix: A Look Back at Georgia’s Contribution to the Law of Libel in the World of Bear Bryant

Moderator n Hank Klibanoff, Professor of Journalism, Emory University Panelists n Emmet Bondurant, Partner, Bondurant, Mixon & Elmore LLP n David Sumner, Professor Emeritus of Journalism, Ball State University Photo by Stephanie J. Wilson Bill Nigut (wearing headphones), host of Georgia Public Broadcasting’s radio show “Political Rewind,” gestures to panelists (left to right) DuBose Porter, Todd Rehm and Jim Galloway Following his (forced) resigna- during their live broadcast. tion in 1960 as University of Georgia head football coach, Wally Butts n Han Choi, Managing Partner, Falcons and Atlanta United. The was allowed to stay on as the uni- Ballard Spahr, LLP Atlanta Braves will be moving to versity’s athletic director. Several Cobb County when SunTrust Park years later, dissatisfied with his lot Every sports team needs a home, is completed. in life and bitter toward his suc- and plenty of jurisdictions want to SunTrust Park has brought the cessor, Butts called the coaches of attract a sports team. What better most public scrutiny. The plan for several football teams that Georgia way than with a brand new stadi- the new stadium was made public would be facing that season. He um? Two state-of-the-art stadiums a mere two weeks prior to the vote shared critical information about are currently under construction by the Cobb Commission. District 4 the Bulldogs’ team strategy and in metro-Atlanta. Mercedes-Benz Commissioner Lisa Cupid was the their plays. The most notable of Stadium, scheduled to open in 2017, only member to vote against a pre- those coaches contacted by Butts will be the home of the Atlanta liminary agreement between Cobb was Bear Bryant of the University

26 Georgia Bar Journal of Alabama. Due to a “technical duct. In three different situations opportunity to serve as the audi- glitch” the phone call between posed by Griffiths, Frog County ence for a live broadcast of Georgia Butts and Bryant was overheard Superior Court Judge “Lawless Public Broadcasting’s radio show by an Atlanta insurance salesman, Stevens”—played by Western “Political Rewind.” Nigut hosts the who then told university officials Circuit Superior Court Judge twice weekly program with a cast what he heard. When approached Lawton Stephens—is accused of of regulars and guests. about the phone call, Butts escalating degrees of transgres- The panel tackled topics cov- resigned as athletic director. Soon sions. Attorney Josh Belinfante, ering the presidential election, after, The Saturday Evening Post ran reporter Robin McDonald and including the Republican debate “The Story of a College Football current Judicial Qualifications that had just aired on CNN the Fix.” Butts subsequently sued for Commission Chairman Lester night before, and pending legis- libel. Curtis Publishing Co. v. Butts, Tate each played their respective lation in the Georgia House and a landmark case heard by the U.S. roles with great skill. As the drama Senate. Go to http://gpbnews. Supreme Court, established the unfolded, Belinfante, McDonald org/programs/political-rewind to standard of First Amendment pro- and Tate all responded to Griffiths’ listen to past episodes. tection against defamation claims questions as they would in real life. brought by private individuals. This Fred Friendly-style panel Georgia and the Death In 1963, Emmet Bondurant was is a highlight of the conference Penalty: Changing a young associate in the firm that each year. defended the Post. Bondurant was Perspectives? present at the conference to share Countdown to SEC his memories about this notorious Tuesday Moderator event. On the panel with Bondurant, n Jason Cater, Partner, Bondurant, was Ball State University Professor Host Mixon & Elmore, LLP Emeritus David Sumner. Sumner n Bill Nigut, “Political Rewind,” is completing his book “Million Georgia Public Broadcasting Panelists Dollar Fumble: The Untold Story n Hon. Norman Fletcher, Chief of the Bear Bryant–Wally Butts Panelists Justice (retired), Supreme Court Football Scandal.” In May 2015, n Jackie Gingrich Cushman, of Georgia Sumner traveled to Atlanta to Columnist, Creators Syndicate n Danny Porter, District Attorney, interview Bondurant for his book. n Tharon Johnson, Director, Gwinnett County “Million Dollar Fumble” is due to Greenburg Traurig be published this fall. n DuBose Porter, Chairman, In the final panel of the day, Democratic Party of Georgia former Georgia senator and 2014 Judging the Judges n Todd Rehm, Editor, GaPundit.com Democratic gubernatorial candidate Jason Carter sat down with Organizer/Interlocutor Just prior to SEC Tuesday, Supreme Court of Georgia Chief n Richard T. Griffiths, Editorial Atlanta media icon Bill Nigut Justice (retired) Norman Fletcher Director, CNN treated conference attendees to the and Gwinnett County District Panelists The 2016 Georgia Bar Media & Judiciary n Josh Belinfante, Partner, Robbins Ross Alloy Belinfante Conference was graciously sponsored by Littlefield, LLC n Robin McDonald, Reporter, n CNN n Institute of Continuing Judicial Daily Report n ACLU of Georgia Education of Georgia n Hon. Lawton Stephens, n Atlanta Journal-Constitution n Jones Day Superior Court Judge, Western n Bryan Cave LLP n Judicial Council of Georgia/ Judicial Circuit n Council of State Court Judges Administrative Office of the n S. Lester Tate III, Chair, Judicial n Council of Superior Court Courts Qualifications Commission; Judges n Kennesaw State University Partner, Akin & Tate, P.C. n Daily Report School of Communication n Duane Morris LLP & Media CNN Editorial Director Richard n Georgia First Amendment n Kilpatrick Townsend Griffiths led the panelists and the Foundation & Stockton LLP audience into fictional Frog County n Georgia State University n Morehouse College for three different hypothetical sce- Department of Communication n State Bar of Georgia narios involving judicial miscon-

April 2016 27 Attorney Danny Porter to discuss trict attorney, has sought and secured After the conclusion of the 2016 Bar their views on the death penalty. the death penalty in six cases. He Media & Judiciary Conference, attor- Prior to his time on the Supreme has also witnessed three executions, neys, judges and journalists gathered Court of Georgia, Justice Fletcher including that of Kelly Gissendaner for a reception outside the audito- hadn’t given his opinion on the by lethal injection on Sept. 30, 2015. rium. Conversations among attend- death penalty much thought. Porter quoted “American Sniper” ees and panelists flowed abundant- During his tenure on the Court, Chris Kyle by saying, “I’m ready ly. Once again, this annual Institute that all began to change, and by the to meet my maker and account for of Continuing Legal Education in time he retired in 2005 his oppo- every shot I’ve taken.” Georgia event was a great success. sition to the death penalty was Attendees listened with rapt secure. Fletcher cites his Christian attention as Carter, Fletcher and Stephanie J. Wilson is beliefs as being the catalyst for his Porter discussed this very polar- the communications change of heart. izing subject. A few people may coordinator in the Gwinnett County District have even walked away from the Bar’s communications Attorney Danny Porter’s opinion lies conference having their personal department and a on the opposite end of the spectrum. views on the death penalty swayed contributing writer for Porter, Georgia’s longest serving dis- in a new direction. the Georgia Bar Journal.

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

28 Georgia Bar Journal DON’T ROLL THE DICE ...

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2015 Georgia Corporation and Business Organization Case Law Developments

by Michael P. Carey

This article presents an overview from a survey of Georgia corporate and business organization case law developments in 2015. The full version of the survey, which can be downloaded or printed at https://ruby.bryancave.com/preview/images/content/8/2/ v2/82173/2015-Georgia-Corporation-and-Business-Organization-Case-Law-Deve.pdf, contains a more in-depth discussion and analysis of each case. This article is not intended as legal advice for any specific person or circumstance, but rather a general treatment of the topics discussed. The views and opinions expressed in this article are those of the author only and not Bryan Cave LLP.

his article catalogs decisions handed down the corporation—one dealing with liability issues, the other an insurance coverage dispute. Elsewhere, the during 2015 by Georgia state and federal Supreme Court of Georgia issued an important opinion reaffirming the duty to read transactional documents courts addressing questions of Georgia cor- and clarifying the circumstances under which that duty T can be excused. The Supreme Court also addressed the porate and business organization law. It includes both availability of prejudgment interest in an action for specific performance of a stock purchase agreement, decisions with significant presidential value and others and the remedy of equitable partition in the context of a joint venture agreement. The Court of Appeals dealing with less momentous questions of law as to of Georgia addressed two issues of first impression: the first dealing with a judgment creditor’s right to a which there is little settled authority. Even those cases charging order against an LLC member, the other dealing with an LLC’s right to recover for discomfort and in which the courts applied well-settled principles annoyance in a nuisance action. The courts also dealt with interesting questions of jurisdiction and venue serve as a useful indication of the types of claims and over corporate entities, including whether a foreign corporation or LLC with its corporate headquarters issues that are currently being litigated in corporate outside of Georgia can remove a tort action from the county in which it is filed to the county where its larg- and business organization disputes and how the courts est Georgia office is located. The decisions are organized first by entity type— are dealing with them. those specific to business corporations, limited liability companies and partnerships. The remaining sections of The year saw a number of noteworthy decisions the survey deal with (1) transactional issues potentially spanning a wide variety of corporate and business law applicable to all forms of business organizations, and issues. There were two significant decisions involving (2) litigation issues that are common to all business directors of corporations who simultaneously serve forms, including secondary liability, jurisdiction and as trustees for trusts who hold a minority interest in venue, evidence questions and insurance issues.

30 Georgia Bar Journal Duties and Liabilities deciding any ultimate question of the same hospital served by the of Corporate Directors, liability, that the capacity in which previous corporation. Evaluating the defendants acted was ascer- a motion for summary judgment Officers and Employees tainable from the trial court’s sum- by the defendants, the Court of One of the most significant and mary judgment record and could Appeals held that no usurpation of interesting Georgia corporate law be determined as a matter of law. a corporate opportunity or fraud cases in recent years, Rollins v. Rollins v. Rollins, 298 Ga. 161, 780 occurred as a matter of law. Two Rollins, returned to the Supreme S.E.2d 328 (2015). In so holding, facts weighed heavily in the court’s Court of Georgia in 2015. In a pre- the Court explained that when a decision. First, the dissolution of vious appeal, the Supreme Court particular action can only have the initial corporation was brought held that corporate directors who been performed in one capacity— about by factors beyond its control; simultaneously serve as trustees such as voting a trust’s shares of namely, the hospital’s unilateral of trusts holding minority inter- stock, which can only be done by decision to terminate its contract ests in the corporation are subject a trustee—there can be no confu- with the previous corporation to the corporate standard of care, sion as to what standard of care to and restructure its anesthesiology and not a more stringent trust apply, and therefore, no need for a department. Second, the dissolu- standard, when acting in a corpo- jury to determine that issue. tion was unanimously approved, rate capacity. The case returned to There were two noteworthy including by the plaintiffs, who the Supreme Court after the Court decisions involving claims of mis- showed no evidence that they were of Appeals of Georgia ruled that appropriation of corporate oppor- defrauded into voting in favor. In it was unable to determine as a tunities. In Sewell v. Cancel, 331 Ga. the second case, BST AG Solutions matter of law whether the defen- App. 687, 771 S.E.2d 388 (2015), the Inc. v. PWB AG Consulting LLC, No. dants were acting in a corporate shareholders of an anesthesiology 1:15-cv-88(LJA), 2015 WL 4067569 capacity or a trust capacity when group structured as a profession- (M.D. Ga. July 2, 2015), the Middle they voted their trusts’ interests in al corporation voted to dissolve District of Georgia held that the favor of amending a partnership the corporation and later, certain evidence was insufficient to show agreement to make themselves director/shareholders formed a that an exclusive distribution managing partners, and also when new corporation, excluding other right was a corporate opportunity they modified the partnership’s directors and shareholders of the belonging to the plaintiff. While distribution scheme. A unanimous previous corporation. The new cor- the defendant, a former director Supreme Court held, without poration obtained a contract with of the corporation, had previously

April 2016 31 assigned the distribution right to “[a]ll liquidated demands, where that an executor of a deceased LLC the corporation, it was clear to the by agreement or otherwise the sum member’s estate became a mem- court that the assignment was for a to be paid is fixed or certain.” In ber of the LLC by operation of limited time period which expired Hall v. Prosero, Inc., 333 Ga. App. O.C.G.A. § 14-11-506, but that this before the defendant left. 454, 774 S.E.2d 216 (2015), the Court fact did not give the executor an Two other cases addressed ques- of Appeals affirmed a trial court unfettered right to continue man- tions of individual liability of cor- decision holding that there was aging the LLC as a going concern. porate directors, officers and share- no failure of consideration, either Instead, the executor was bound holders. In Houston v. Elan Financial partial or full, when a corporation’s by the terms of the LLC operating Services, ___ F. Supp. 3d ___, 2015 chief executive officer executed a agreement, which expressly lim- WL 5634626 (S.D. Ga. Sept. 24, promissory note to exercise stock ited his powers to bringing about 2015), the Southern District of options. The court explained that the dissolution of the LLC. Georgia held that the owner of a because even stock valued at the There were two decisions, both corporation bound himself person- nominal sum of $0.01 per share, as issued by the same panel of the ally to the terms of the corpora- argued by the defendant, has some Court of Appeals, which appear to tion’s credit card agreement, and positive value, there cannot have be the first Georgia appellate deci- therefore was liable for charges been a complete failure of consid- sions interpreting the LLC Act’s made to the account. The court eration. The court also found that provisions regarding charging found that the agreement plainly the defendant’s partial failure of orders, O.C.G.A. § 14-11-504(a). In bound the owner through terms consideration defense amounted to Mahalo Investments III, LLC v. First such as “the business owner is indi- a claim that the stock’s value was Citizens Bank & Trust Co., 330 Ga. vidually liable and jointly liable inadequate, which does not support App. 737, 769 S.E.2d 154 (2015), the with the business for all charges a defense absent a showing of fraud. Court held that a judgment credi- made to the account.” In Caplan tor seeking a charging order was v. Weis, No. 1:14-cv-01321-RWS, Limited Liability not required to bring an indepen- 2015 WL 630441 (N.D. Ga. Feb. Company Developments dent action against the LLC. The 11, 2015), the Northern District of Court further held that a trial court Georgia held that a landlord’s prin- There were a number of inter- may enter a charging order with- cipal could be individually liable esting cases from 2015 involving out first establishing that jurisdic- under the federal Lead-Based Paint limited liability companies. Two tion and venue are proper against Hazard Reduction Act of 1992 and cases involved the construction the LLC. It reasoned that because for negligence under Georgia law, of operating agreement language a judgment creditor is not entitled on the basis of allegations that the dealing with the death of members. to interfere in the internal affairs of principal dealt personally with the In Davis v. VCP South, 297 Ga. 616, the LLC, but instead holds only the plaintiff tenants but did not warn 774 S.E.2d 606 (2015), the Supreme rights of an assignee of the mem- them about the dangers of lead- Court of Georgia held that a spe- ber’s interest, the LLC has no right based paint on the premises. cial master properly construed the or interest in need of protection in provisions of an LLC operating proceedings to obtain a charging Corporate Stock and agreement regarding the purchase order. This was further illustrated Debt—Contracts and of a deceased member’s interest in the second case, Gaslowitz v. when it established a cutoff date Stabilis JE-102 Fund I, LP, 331 Ga. Valuation for the estate of the deceased mem- App. 152, 770 S.E.2d 245 (2015). In In Estate of Callaway v. Garner, ber’s right to receive distributions Gaslowitz, the court affirmed the 297 Ga. 52, 772 S.E.2d 668 (2015), that preceded the actual sale of trial court’s entry of a charging the Supreme Court of Georgia the interest by over two years. The order and rejected arguments that held that a seller obtaining spe- Court reasoned that the operat- the order was too unspecific as to cific performance of a stock pur- ing agreement had provided for a the amount due and the method chase agreement was not entitled streamlined valuation and sale pro- by which distributions should be to prejudgment interest under cess, and that once the valuation made to the judgment creditor. O.C.G.A. § 13-6-13, holding that occurred shortly after the litiga- At the same time, however, the the award of prejudgment inter- tion commenced, it was reasonable Court of Appeals reversed the trial est was inconsistent with the for the trial court to cut off any court’s order insofar as it ordered nature of specific performance as future right to distributions so as an accounting of the LLC. an equitable remedy. The Court to prevent the estate from unfairly In Evanston Insurance Company v. nonetheless noted that an award benefiting from dragging out the Mellors, ___ F. Supp. 3d ___, 2015 of interest might be available under process through litigation. In Myers WL 5786745 (S.D. Ga. Sep. 28, 2015), O.C.G.A. § 7-4-15, which pro- v. Myers, 297 Ga. 490, 775 S.E.2d the Southern District of Georgia vides for an award of interest on 145 (2015), the Supreme Court held addressed the definition of a man-

32 Georgia Bar Journal ager under O.C.G.A. § 14-11-304 in an LLC through a registered agent determining whether an individual who had resigned was effective, was an insured person under the the agent’s statement of registra- Tax Court Accepts LLC’s insurance policy. Despite the tion was stamped as received by Kaye Valuation fact that the individual was not a the Secretary of State’s office in member of the LLC and held no February 2013, then stamped again Affirmed by formal title, he was deemed to be with the Secretary’s name in May a manager because the LLC’s sole 2013. The Court, unable to discern US Court of Appeals owner, who was the individual’s any reason for the later stamp, con- wife, designated him in writing to cluded that the resignation was “handle all business matters” for effective 31 days after it was ini- Mitchell Kaye, CFA, ASA the LLC. A similar question was tially stamped as received by the (770) 998-4642 addressed in In re Reynolds, No. Secretary’s office. It relied heavily 11-87131-BEM, 2015 WL 6520157 on O.C.G.A. § 14-11-206, which it (Bankr. N.D. Ga. Sept. 18, 2015), in interpreted as giving the Secretary’s Business Valuations which a bankruptcy trustee sought office a purely ministerial role in fil- revocation of a debtor’s discharge ing documents, and also analogized Divorces ! Estates ! Gifts on the grounds that she failed to dis- the situation to the filing of plead- ESOPs ! FLPs close her involvement in an LLC on ings with the clerk of court. Intangible Assets ! Disputes whose behalf she routinely executed Court Testimony and IRS Experience leases, contracts and other docu- Partnership Law ments. The bankruptcy court held Developments that disclosure was not required, serving appraisal clients since 1981 citing the fact that the debtor was One of the most interesting deci- www.MitchellKaye.com not a member and had no appar- sions of 2015 dealt with an equitable ent financial interest in the LLC, as partition of joint venture property. well as evidence showing that all of In Bagwell v. Trammel, 297 Ga. 873, to by the parties, noting that in a her acts performed on behalf of the 778 S.E.2d 173 (2015), the parties set equitable proceeding, trial courts LLC were done at the direction of its up a joint venture to hold certain have broad discretion to consider sole member and under his control. real estate which was intended to facts and circumstances beyond the In Crumpton v. Vick’s Mobile Homes, be sold. The operative agreement terms of the parties’ agreement. LLC, 335 Ga. App. 155, 779 S.E.2d provided for a 70/30 distribution Another case dealing with a 136 (2015), the Court of Appeals held of sale proceeds in favor of the real estate venture was Abdulla that a member’s petition for dissolu- plaintiff. After most of the property v. Chaudhary, No. CV 114-008, tion of an LLC does not cause the had been sold and the proceeds 2015 WL 4477824 (S.D. Ga. July petitioner’s membership to cease. from those sales completed, the 21, 2015), in which the Southern Interpreting O.C.G.A. § 14-11-601(b) plaintiff sued for specific perfor- District of Georgia held that no (4)(D), which lists “dissolution” as mance of the distribution formula claim could be brought for breach one of several conditions that can for future sales, and alternatively of a partnership agreement, or for cause one’s membership in an LLC for equitable partition of the joint breach of fiduciary duties aris- to cease, the court explained that venture property consistent with ing from a partnership, where the this provision refers to dissolution the 70/30 formula. The trial court parties abandoned the partnership of the member and not dissolution denied the request for specific per- by failing to purchase properties of the LLC. formance and granted the request through an LLC they had agreed Finally, in STL Management for equitable partition, but divided to create for that purpose, and Consultants v. Manhattan Leasing the property 50/50 instead. The purchasing the properties in their Enters. Ltd., 333 Ga. App. 309, 775 Supreme Court affirmed the deci- own names instead. In McElvaney S.E.2d 758 (2015), the Court of sion in all respects. It found that v. Roumelco, 331 Ga. App. 729, 771 Appeals addressed a novel ques- the request for specific perfor- S.E.2d 419 (2015), the Court of tion regarding the time at which the mance was not ripe (even though Appeals held that a joint venturer resignation of an LLC’s registered the trial court had ruled on differ- produced sufficient evidence of agent becomes effective. Under ent grounds), because at the time an oral stock transfer agreement O.C.G.A. § 14-11-209(a)(2), a regis- of the action, the property had giving him a 47 percent interest tered agent’s resignation becomes not been sold and there were no in an LLC to entitle him to a jury effective 31 days after its statement proceeds to distribute. It further trial of his claims against the LLC of registration is “filed” with the upheld the trial court’s decision and its majority owner. Reversing Secretary of State. Here, in a dis- to partition the property using a the trial court’s grant of summary pute concerning whether service on different formula from that agreed judgment to the defendants, the

April 2016 33 Court pointed to evidence that the er clause that contradicted their held that the lack of any record defendants held the plaintiff out fraud claim, the Supreme Court of transfer of the original lender’s to be a 47 percent owner in com- held that a directed verdict should interest in the county deed records munications with the defendant have been entered in favor of provides no basis for enjoining a and a third party. Finally, in Smith the defendants. foreclosure sale, because its inter- v. Williams, 333 Ga. App. 167, 775 Another investor’s fraud in the est was transferred by operation S.E.2d 639 (2015), the Court of inducement claim was permitted of law. And in McDonald-Forte Appeals held that a question of to go forward, however, in Stafford v. Merrill Lynch Mortgage Investors fact existed as to when a law firm v. Gareleck, 330 Ga. App. 757, 769 Trust, Series MLCC 2004-D, partnership terminated, thus pre- S.E.2d 169 (2015). Here, the Court No. 1:14-cv-1660-WSD, 2015 WL cluding summary judgment in a of Appeals held that the trial court 4928715 (N.D. Ga. Aug. 18, 2015), dispute over the disposition of should not have dismissed fraud the Northern District dismissed a certain fees. While the plaintiff claims alleging that the plaintiff wrongful foreclosure claim against contended that the partnership agreed to sell his interest in reli- a securitized trust which had trans- terminated the moment her part- ance on the defendant’s misrep- ferred the plaintiffs’ mortgage, ner packed up and left the office, resentations about its fair value, holding that the trust owed no the Court found evidence that the combined with allegations that the duty to the plaintiffs. parties continued to split fees for defendant owed him a fiduciary some time thereafter, and noted duty. The court also found that Litigation Issues that dissolution does not imme- the plaintiff was not required to diately terminate a partnership; make a tender of the shares in Standing and Capacity to Sue instead, its existence continues order to obtain rescission, because In Oglethorpe Power Corp. v. until the winding up of its affairs he alleged that the defendant had Estate of Forrister, 332 Ga. App. 693, is completed. already acknowledged his demand 774 S.E.2d 755 (2015), the Court of to rescind the transaction and Appeals addressed what it con- Transactional Cases agreed to pay him more money. sidered to be a question of first The Supreme Court of Georgia In Kreiger v. Bonds, 333 Ga. App. impression regarding the right of rendered a noteworthy decision 19, 775 S.E.2d 264 (2015), the Court an LLC to recover nuisance damag- on the duty to read transaction of Appeals held that issues of fact es for “discomfort and annoyance,” documents in Legacy Academy, precluded summary judgment in holding that an LLC is entitled Inc. v. Mamilove, LLC, 297 Ga. 15, an action for specific performance to recover such damages, even if 771 S.E.2d 868 (2015). Reversing of a buy-sell agreement, noting that it did not reside in Georgia. The a 4-3 en banc Court of Appeals there were numerous questions as Court found support from an 1883 ruling from 2014, a unanimous to whether various conditions in U.S. Supreme Court case which Court held that the fact that a the buy-sell agreement and the cor- recognized a religious corpora- party was rushed into signing a poration’s bylaws had been satis- tion’s right to sue for annoyance document, without more, does fied by either party. and discomfort suffered by its not excuse a party from the well- Finally, there were multiple members in their use of the corpo- established duty to read and be decisions involving the transfer of ration’s property. In In re Mohr, 538 familiar with the document’s con- assets, rights and liabilities as a B.R. 882 (Bankr. S.D. Ga. Sept. 24, tents. Instead, for a signatory to result of bank mergers, none of 2015), the bankruptcy court held set up a fraud claim that is con- which established any new legal that a creditor that was a foreign tradicted by the plain terms of the principles. In Stoudemire v. HSBC LLC was not transacting business document being signed, the sig- Bank USA, 333 Ga. App. 374, 776 in Georgia by seeking relief in natory must show that he or she S.E.2d 483 (2015), the Court of court, and therefore did not need was prevented from reading the Appeals affirmed the dismissal of a to obtain a certificate of authority document. The implications of wrongful foreclosure action which from the Secretary of State. And in this rule can be quite significant, was premised in part on allega- AAA Restoration Co, Inc. v. Peek, 333 as evidenced by the case before tions that the assignment of the Ga. App. 152, 775 S.E.2d 627 (2015), the Court. The plaintiffs had plaintiffs’ security deed was inval- the Court of Appeals addressed the prevailed at trial and obtained id under O.C.G.A. § 14-5-7 because remedies available when an arbi- a verdict of more than $1 mil- it was not signed by a secretary, tration agreement contains a mis- lion, which the Court of Appeals assistant secretary, cashier or assis- nomer as to the identity of the arbi- narrowly affirmed. But because tant cashier of the transferor bank. tration provider. The court held they were not actually prevent- In Shibley v. JPMorgan Chase Bank, that absent evidence of mutual ed from reading the transaction N.A., No. 1:14-cv-1728-WSD, 2015 mistake, there was no basis for documents, which contained non- WL 576592 (N.D. Ga. Feb. 11, 2015), reformation of the agreement to reliance provisions and a merg- the Northern District of Georgia change the name.

34 Georgia Bar Journal Secondary Liability There were a number of fed- N D L eral decisions, all involving related Norwitch Document Laboratory facts, in which the courts rejected Forgeries - Handwriting - Alterations - Typewriting attempts to hold individual own- Ink Exams - Medical Record Examinations - “Xerox” Forgeries ers and managers of a developer and building manager individually F. Harley Norwitch - Government Examiner, Retired liable for torts allegedly committed Court Qualified Scientist - 35+ years. Expert testimony given in by the companies under an alter excess of five hundred times including Federal and Offshore ego theory. Lokey v. FDIC, 608 Fed. Appx. 736 (11th Cir. 2015); Harris 1 Offices in West Palm Beach and Augusta Baking Company v. Drayprop LLC, www.QuestionedDocuments.com No. CV411-171, 2015 WL 5786743 Telephone: (561) 333-7804 Facsimile: (561) 795-3692 (S.D. Ga. Sept. 30, 2015); Hunt v. Drayprop, LLC, No. CV411-172, 2015 WL 5786744 (S.D. Ga. Sept. 30, insufficiently pled. The plaintiff quarters was in Maryland was per- 2015); Reinke v. Drayprop, LLC, No. alleged that the various compa- mitted to remove an action brought CV411-144, 2015 WL 5786742 (S.D. nies shared common officers and in Thomas County, where it has no Ga. Sept. 30, 2015). The Eleventh directors, shared office space, com- office, to Gwinnett County, where Circuit and the Southern District mingled financial resources, and it maintains its registered office. of Georgia held that the plaintiffs’ used common intellectual proper- The Court of Appeals reversed, evidence, which largely consisted ty. The court acknowledged that holding that the operative statu- of allegations that the individual allegations of this type can support tory language—”where the defen- defendants drafted and signed par- an alter ego theory, but nonethe- dant maintains its principal place ticular documents, and/or guaran- less held that the complaint failed of business,” was intended to refer teed certain loans, fell short of the to state a claim, noting that the to a single place in the world, not showing needed to invoke the alter Supreme Court of Georgia has not to the corporation’s main office ego doctrine. recognized veil-piercing in the within Georgia. This would seem In Dezauche v. Bryce, No. CV311- parent-subsidiary context without to suggest that corporations whose 71, 2015 WL 5923581 (S.D. Ga. a showing that the subsidiary is main office is outside of Georgia Oct. 9, 2015), the Southern District insolvent or undercapitalized. will be treated differently from addressed—and ultimately found those whose main office is within inapplicable—several theories of Jurisdiction, Venue and Georgia. Because one of the three secondary liability: alter ego, part- Service of Process justices on the panel concurred in nership, joint venture and successor In Kingdom Retail Group, LLP v. the judgment only, this decision liability. The plaintiff had alleged Pandora Franchising, LLC, 334 Ga. stands as physical precedent only. that the defendants actually con- App. 812, 780 S.E.2d 459 (2015), However, a petition for writ of cer- trolled a company that was one the Court of Appeals addressed an tiorari has been filed in the Supreme of its customers. The court found interesting and potentially signifi- Court of Georgia. In another inter- no evidence that the defendants cant question concerning the venue esting decision involving the cor- ever failed to respect the customer’s for tort suits against a foreign corporate venue statute, Ross v. Waters, separate identity. It further found poration or LLC: can a corporation 332 Ga. App. 623, 774 S.E.2d 195 that claims that the defendants (or LLC) whose primary corporate (2015), the Court of Appeals held and its customers had formed a headquarters is somewhere outside that venue in a tort action against partnership, or that the defendants of Georgia avail itself of the remov- a dissolved corporation lies in the had acquired the customer, were al remedy provided in O.C.G.A. § county where it maintained its last rebutted by testimony from the cus- 14-2-510(b)(4)? In a tort action in registered office, not its last prin- tomer’s principals that they did not which venue is only proper in the cipal office. Notably, the opinion desire such a relationship. forum county because the cause of preceded Kingdom Retail by sev- Finally, in CHIS LLC v. Liberty action originated there, the corpo- eral months and did not address Mutual Holding Co Inc., No. 5:14- ration has the right under § 14-2- the potential impact of O.C.G.A. cv-277, 2015 WL 4249358 (M.D. Ga. 510(b)(4) to remove the action to § 14-2-510(b)(4). July 13, 2015), the Middle District the county in which it maintains its There were also the usual cases of Georgia held that a policyhold- principal place of business. Because discussing personal jurisdiction of er’s claims against its insurer’s par- the parallel statute in the LLC Act directors, officers and parent com- ent company and two affiliates, simply refers to § 14-2-510, the rule panies of corporations doing busi- which relied on alter ego, agency is equally applicable to LLCs. In ness in Georgia. In Stubblefield v. and joint venture principles, were this case, a defendant whose head- Stubblefield, 296 Ga. 481, 769 S.E.2d

April 2016 35 78 (2015), the Supreme Court of within the state. In Blocker Farms of time affirming the trial court) that Georgia held that two sharehold- Florida Inc v. Buurma Properties LLC, business records were properly ers and directors of a Georgia cor- Nos. CV 613-068, 613-067, 2015 WL authenticated by a representative poration and two Mississippi cor- 2409031 (S.D. Ga. May 19, 2015), of a successor company. porations were subject to personal the Southern District of Georgia jurisdiction under the Long Arm applied the rule that a limited lia- Director and Officer Liability Statute, O.C.G.A. § 9-10-91(1), bility company is a citizen of any Insurance Decisions based on their personal participa- state in which one of its members There were two noteworthy tion in removing corporate funds is a citizen. decisions involving D&O insur- from banks located in Georgia ance policies issued to Georgia cor- and terminating the companies’ Evidence, Business Records Act porations. In Langdale Co v National Georgia-based accounting firm. In In 2015, Georgia state courts Union Fire Ins. Co. of Pittsburgh, 609 Williamson v. Walmart Stores Inc., continued to address evidentiary Fed. Appx. 578 (11th Cir. 2015), No. 3:14-cv-97, 2015 WL 1565474 challenges to business records the Eleventh Circuit, applying (M.D. Ga. Apr. 8, 2015), the obtained as a result of mergers and Georgia law, held that coverage Middle District of Georgia held acquisitions. This year’s decisions was excluded for claims arising that a products liability plaintiff illustrate the impact of Georgia’s from the alleged conduct of two sufficiently alleged a basis for the revised evidence code, which directors of a closely held corpora- exercise of long arm jurisdiction largely conforms to the Federal tion who simultaneously served over a foreign parent company Rules of Evidence. In Ciras, LLC v. as trustees of family trusts that and its affiliates under an alter Hydrajet Technology, LLC, 333 Ga. were shareholders of the corpora- ego theory. The court’s ruling App. 498, 773 S.E.2d 800 (2015), tion. The court held that the poli- was based on allegations that the the Court of Appeals of Georgia cy’s “insured capacity” exclusion, parent and affiliates rendered the reversed a trial court decision which generally excluded coverage seller of the defective product to excluding bank records of a pre- for claims relating to acts commit- be undercapitalized, controlled its decessor bank, which the successor ted outside of a director or officer’s board of directors, and otherwise bank sought to introduce through corporate capacity, applied to bar sought to insulate the subsidiary the testimony of one of its own offi- coverage in connection with litiga- from liability. cers. The Court cited and followed tion brought by the trust’s ben- Finally, there were two cases federal decisions applying Federal eficiaries, holding that the claims addressing the citizenship of busi- Rule of Evidence 803 which hold would not have existed but for ness entities for purposes of feder- that employees of successor enti- allegations of wrongdoing com- al diversity jurisdiction. In Lawson ties can authenticate business mitted by the individuals in their v. Ocwen Loan Servicing LLC, records of their predecessor enti- uninsured capacity as trustees. No. 1:14-cv-1301-WSD, 2015 WL ties that pass to them by virtue of In OneBeacon Midwest Ins Co 881252 (N.D. Ga. Mar. 2, 2015), the merger, which had been the case v Ariail, No. 2:14-cv—00007-RWS, Northern District of Georgia held here. Similarly, in Triple T-Bar, LLC 2015 WL 1412661 (N.D. Ga. Mar. that a foreign corporation does not v. DDR Southeast Springfield, 330 27, 2015), the Northern District become a citizen of Georgia merely Ga. App. 847, 769 S.E.2d 586 (2015), of Georgia held that an insur- by maintaining a registered office the Court of Appeals held (this er’s declaratory judgment action

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36 Georgia Bar Journal against the FDIC as receiver for vacated the Court of Appeals’ In Ordan v. Keen, No. 2014-cv- a failed bank that was a policy- opinion because it rested on a dif- 240975 (Jan. 8, 2015) (Order on holder was barred by the insur- ferent ground, official immunity, Defendants’ Motion for Summary er’s failure to initiate the FDIC’s that the Court found it was with- Judgment), the court denied the administrative claims process in a out jurisdiction to consider under defendants’ summary judgment timely fashion. The court held that the Barton doctrine. motion as to claims for breach of instead of filing a lawsuit seeking an oral agreement to transfer a 25 a declaration that coverage for Fulton County percent LLC interest to the plain- claims against the bank’s former Business Court tiff, holding that there was suf- directors and officers was exclud- ficient evidence of the existence of ed, the insurer should have filed Decisions the oral contract to create a genuine a proof of claim upon receiving In a case styled Rollins v. Rollins issue for the jury. In Robinson v. notice of the FDIC’s appointment that is related to the litigation that Wellshire Fin. Svcs., LLC, No. 2015- as receiver. was before the Supreme Court cv-259408 (June 1, 2015) (Order on of Georgia in 2015, the Business Application for Protective Order), Professional Liability Court held that the trustees of a the court had the opportunity to In Befekadu v. Addis International marital trust which held a minor- consider the “apex doctrine,” a rule Money Transfer, 332 Ga. App. 103, ity interest in one of the Rollins employed by some jurisdictions 772 S.E.2d 785 (2015), the Court of family corporations could assert that imposes certain requirements Appeals held that the trial erred mismanagement and breach of on parties that seek to take the in disqualifying an attorney repre- fiduciary duty claims against deposition of C-level executives. senting an LLC member in litiga- two directors in a direct share- Noting that no Georgia appellate tion brought by the LLC, without holder action. Rollins v. Rollins, opinion has recognized the apex first considering whether the con- No. 2014-cv-249480 (Feb. 04, 2015) doctrine, the court declined to flict had been waived by the LLC’s (Order on Defendants’ Motion to recognize it as a basis for enter- failure to promptly raise the issue, Dismiss and for Judgment on the ing a protective order in favor of and without determining whether Pleadings). Following a long line the applicant, a former officer of a the attorney’s prior work in set- of Georgia appellate decisions, the Texas company who was subpoe- ting up the LLC was substantially court found that the rule normal- naed to give testimony in a Texas related to the litigation. In Hays ly requiring breach of fiduciary lawsuit. Finally, in Drummond v Page Perry LLC, 92 F. Supp. 3d duty claims to be brought deriva- Financial Services, LLC v. TMX 1315 (N.D. Ga. 2015), the Northern tively on behalf of the corpora- Finance Holdings, Inc., No. 2014- District of Georgia, on a motion tion did not apply, because the cv-253677 (Feb. 26, 2015) (Order for reconsideration, reaffirmed its reasons for requiring a derivative on Motion to Strike Affidavit and prior holding that an LLC’s out- suit were not present—there were to Disqualify Counsel), the court side counsel had no duty to report no interested creditors, and all disqualified counsel for the defen- potential securities violations to of the corporation’s shareholders dants in a commercial dispute the SEC. were either parties to the suit or between competitors, finding that had acquiesced in the defendants’ the firm was conflicted due to its Corporate Receiverships conduct. In Bronner v. Hardy, No. representation of affiliates of the In Considine v Murphy, 297 Ga. 2014-cv-248023 (Apr. 14, 2015) plaintiffs in other matters. 164, 773 S.E.2d 176 (2015), the (Order on Defendants’ Motion to Supreme Court of Georgia held Dismiss and For Judgment on the Michael P. Carey that a lawsuit brought against a Pleadings), the court dismissed practices corporate, receiver for a corporation should a minority shareholder’s oppres- securities and other have been dismissed because the sion claim, holding that Georgia complex litigation at plaintiff failed to obtain leave of law recognizes no cause of action Bryan Cave LLP, with a court from the court appointing for oppression outside of the stat- focus on director and the receiver. The Court applied utory close corporation context, the Barton doctrine, named after and this case did not involve a officer liability issues. Carey is an 1881 U.S. Supreme Court deci- statutory close corporation. In the co-author of a chapter on Director sion, which it interpreted to oper- same order, the court permitted and Officer Liability in a book ate as a jurisdictional bar to suits fraud and breach of fiduciary duty published annually by the Daily against receivers brought without claims to go forward, holding that Report, ”Georgia Business leave from the appointing court. they were adequately pled and did Litigation“ (Daily Report 2013). He While the Court’s decision had not need to be brought derivative- can be reached at michael.carey@ the effect of affirming an earlier ly because they involved alleged bryancave.com. Court of Appeals ruling, the Court rights unique to the plaintiff.

April 2016 37 Honor Roll of Contributors 2015 “And Justice for All” State Bar Campaign for the Georgia Legal Services Program®

A Salute to our Supprters! The following donors contributed $150 or more to the campaign from 4/1/2015 – 2/12/2016. Thank you for your generosity and support.

VISIONARIES CIRCLE Nordson Corporation Anderson, Walker M. Ayres Gardner Jack and Ruth Raisner ($10,000 & Up) Foundation & Reichert, LLP and William J. Cobb Reynolds, Horne & Survant The Coca-Cola Company Benet O’Reilly W. David Arnold Karen Geiger Teresa W. Roseborough The Legal Division of The Savannah Bar Association Joel S. Arogeti Hon. Hardy Gregory Jr. Savannah Law School Coca-Cola Company Nancy Terrill Patricia T. Barmeyer and Toni Gregory Savannah Technical College Cy Pres Award, Immucor and Camp Bacon Ansley B. Barton Harris Penn Lowry LLP Sell & Melton, L.L.P. Securities Litigation (N.D.Ga.) Bibb County District Rachael Henderson Tonia C. Sellers and Georgia Bar Foundation, Inc. PRESIDENT’S CIRCLE Attorney’s Office Hodac, Inc. Seth G. Weissman Philip C. Henry ($1,500 - $2,499) Elizabeth B. and Camille L. Hope and Ethelyn N. Simpson Sutherland Georgia Association James W. Boswell III Hon. James C. Marshall William A. Trotter III Tift County Law Library for Women Lawyers Bouhan Falligant LLP Hon. and Mrs. Willis B. Hunt Jr. Hon. Charles H. Weigle The Wilson Family Foundation (GAWL) Phillip A. Bradley HunterMaclean Westmoreland, Patterson, Foundation Hatcher, Stubbs, Land, Hollis Jamie M. Brownlee James-Bates-Brannan- Moseley & Hinson, LLP & Rothschild, LLP and David G. Russell Groover-LLP Carl J. Wilson Jr. PATRON’S CIRCLE Stanley S. Jones Jr. and Robert D. Brussack Hon. Sallie R. Jocoy Norman E. Zoller (5,000 - $9,999) Barbara T. (Bobbi) Cleveland Leslie L. Cadle Mark P. Jones John T. Batson Michael N. Loebl and Ivy N. Cadle Paul Kilpatrick Jr. LEADERSHIP CIRCLE Patrick J. Flinn Richard C. Mitchell Central GA Council Linda A. Klein and ($500 - $749) Marguerite Salinas Trust and Susan Kupferberg on Family Violence Michael S. Neuren Brian P. Adams Weissman, Nowack, Andrew M. Scherffius III Chambless Higdon Lisa J. Krisher and Adams, Jordan Curry & Wilco, P.C. Strickland Brockington Richardson Katz John P. Batson & Herrington, P.C. Lewis LLP & Griggs LLP Hon. John T. Laney III Hon. William P. Adams BENEFACTOR’S CIRCLE David F. Walbert James A. “Jock” Clark Lawler Green Prinz, LLC Addleton Ltd. Co. ($2,500 - $4,999) Weiner, Shearouse, Weitz, and Mary Jane Robertson Macon Bar Association Akin, Webster & Matson, P.C. Anonymous Greenberg & Shawe, LLP Clark & Smith Law Firm, LLC Martin Snow, LLP Alpha Georgia Peyton Anderson Foundation Hon. Susan S. Cole McArthur Law Firm Education Foundation Walter E. Jospin and EXECUTIVE CIRCLE Community Foundation Randy and Jane Merrill Paul H. Anderson Jr. Hon. Wendy L. Shoob ($750 - $1,499) of Central Georgia, Inc. Jenny K. Mittelman and Stephen Andrews and Long County Anonymous Charles M. Cork III William C. Thompson Hon. Doris L. Downs Law Library Fund AT&T Harold T. Daniel Jr. Hon. Margaret H. Murphy Anthony B. Askew Middle District of Georgia Hon. Lanier and Richard H. Deane Jr. Oliver Maner LLP The Augusta National Golf Club Bankruptcy Law Institute, Inc. Nancy Anderson Dellacona Law Firm Kimberly J. Prior Employee Giving Program Willis L. Miller III David H. Gambrell Annette T. Quinn Ryan W. Babcock

38 The Barnes Law Group, LLC Alan F. Rothschild Jr. Kevin E. Belle Isle Thomas W. Curvin Charles C. Grile Lamont A. Belk Sacred Heart Catholic Church Frank J. Beltran Neal K. Daniel Rebecca H. Grist Hon. Joshua C. Bell Ryan A. Schneider Mary T. Benton Tomieka R. Daniel Divida Gude Beth Boone J. Ben Shapiro Jr. Yahn William Bernier Peter S. Dardi John T. Gunn Eric S. Broome Kenneth L. Shigley Joseph J. Berrigan Hugh M. Davenport Stephen H. Hagler Sheryl L. Burke Fiame M. Simpson Hon. James G. Blanchard Jr. Melissa J. Davey Stacey A. Haire Maureen A. Cahill John I. Spangler III Charles and Lisa Bliss A. Kimbrough Davis Andrew C. Hall John A. Chandler Charles W. Surasky Phil Bond Cedric B. Davis Wilbur G. Hamlin Jr. Cohen & Caproni, LLC Thomas W. Talbot Thomas A. Bowman Randall H. Davis Ernest V. Harris K. David Cooke Jr. Evelyn Y. Teague Hon. William T. Boyett Ryan C. Davis Matthew G. Hawk Tom Crites & Associates Kathryn Ann Terrill-Torrez Noble L. Boykin Jr. Peter H. Dean Franklin D. Hayes International, Inc. United Way of Toombs/ David G. Brackett William D. DeGolian Kathryn N. Hedden Christine M. Cruse Montgomery/Wheeler Counties Joshua W. Branch Scott D. Delius Carlton M. Henson Gregory J. Digel The Wade Law Firm Mark D. Brandenburg Foy R. Devine Kenneth M. Henson Jr. R. Jeffrey Field Patrick F. Walsh Sam L. Brannen Jr. William D. Dillon Robert E. Herndon Thomas M. Finn Claudia N. Whitmire James J. Breen Carolyn B. Dobbins Caroline Whitehead Herrington Daisy H. and Leigh M. Wilco Brent M. Bremer Sally Ann Dorn Jonathan W. Hewett Timothy W. Floyd L. Matt Wilson Deborah A. Brian Sharon E. Dougherty Hon. Sharon N. Hill Joseph B. Foltz Timothy W. Wolfe John M. Briski Dozier Law Firm, LLC Megan J. Hilley Fort Valley State University Tamera M. Woodard Alex M. Brown William M. Dreyer Thomas H. Hinson II Franzen & Salzano, P.C. Jerome A. Zivan Kristine E. Orr Brown Diane Durgin Daniel M. Hirsh Robert L. Goldstucker Callie D. Bryan Willis A. Duvall Frederick S. Hitchcock Emmett L. Goodman Jr. SUSTAINER’S CIRCLE Robert C. Buck W. Randy Eaddy Kenneth B. Hodges III William S. Goodman ($250 - $499) Christine P. Bump R. M. Edmonds Rebecca A. Hoelting Patricia A. Gorham Anonymous (5) Sandra S. Burgess William A. Edmundson David L. Hoffman Kristi Graunke Warren K. Abel Thomas R. Burnside III Edwards & Bullard, LLP John V. Hogan V Earline L. Ham Alfred B. and Bryon S. Burton Margaret P. Eisenhauer L. Lynn Hogue Jack Hardin Joanna M. Adams Katharine S. Butler Susan S. Elder Richard B. Holcomb Sally Haskins Hon. Gregory A. Adams Susan A. Cahoon A. James Elliott Philip E. Holladay Jr. Hogue & Hogue, LLP Tara L. Adyanthaya Elizabeth C. Calhoun Damon E. Elmore Keith W. Holman Phyllis J. Holmen James E. Albertelli Margaret Ann and Anne S. Emanuel Catherine A. Hora Anderson Paul A. Howell Jr. Douglas W. Alexander George Carswell Dale S. Erickson Melissa R. Hourihan R. William Ide III Robert L. Allgood Robert P. Catlin III Benjamin P. Erlitz Charles T. Huddleston Kimberly Jager Janet M. Ansorge Fred L. Cavalli Hon. Philip F. Etheridge William H. Hughes Jr. Forrest B. Johnson Thomas J. Anthony Lisa E. Chang and Stacey G. Evans Howard O. Hunter III John G. Kennedy Arthur S. Archibald William W. Buzbee Eric R. Fenichel Charles D. Hurt Jr. Foundation, Inc. Margaret L. Argent Socheat Chea Michael E. Fincher James W. Hurt Hon. Patricia M. Killingsworth William H. Arroyo John P. Cheeley Ira L. Foster Jennifer N. Ide King & Spalding LLP Richard J. Azar John D. Christy Benjamin E. Fox Terry D. Jackson Edward B. Krugman Bacon County Law Library Thomas H. Clarke Jr. Peter A. Fozzard J. Scott and Tanya Jacobson Allegra J. Lawrence-Hardy Board of Trustees John L. Coalson Jr. Murray A. Galin Mary B. James Charlie Lester Jr. Bridget B. Bagley David H. Cofrin Timothy J. Gardner Christopher B. Jarrard Tennell Lockett Hon. Jeffrey S. Bagley Katherine M. Cohen E. Reid Garrett Frederick W. Johnson Ellen K. Lundergan-Linker Emily C. Bagwell Peter M. Cohen Jarome E. Gautreaux Todd M. Johnson Macon Housing Authorty Jennifer Baker Robert Cohen William C. Gentry Theodore C. Jonas Macon Younger David Balser Arlene L. Coleman Michael G. Geoffroy Dawn M. Jones Lawyers Division W. Leon Barfield Thomas M. Cook Cynthia Gibson Pamela M. Jones Jennifer R. Mason Sharon Chester Barnes Steven A. Cornelison James B. Gilbert Jr. Donald J. Jordan Marie E. Massey Steven M. Barnett Arturo Corso John R. Gilliland William H. Jordan Lesly G. Murray Hubert J. Barnhardt III Jason L. Crawford Neil J. Ginn Robert N. Katz Gretchen E. Nagy William D. Barwick George C. Creal Jr. Richard G. Goerss Marcus G. Keegan Melissa K. Orme Hon. James F. Bass Jr. Dick and Elise Creswell Bruce D. Goldstein Kirk W. Keene Harry A. Osborne Rhonda L. Bass Crisis Line & Safe House The Gordon Law Firm Michael B. Keene Parker MacIntyre Tina G. Battle of Central Georgia, Inc. Ronda K. Graham Carol B. Kiersky Patrise M. Perkins-Hooker Henry R. Bauer Jr. Terrence L. Croft Christine B. Green Daniel M. King Jr. Timothy S. Pollock Sandra M. Baumwald Delia T. Crouch Gina G. Greenwood Jason M. King Tera L. Reese-Beisbier Hon. Dorothy Toth Beasley Lynda M. Crouse John W. Greer III Karen A. King John D. Reeves David H. Bedingfield Raymond L. Crowell Karlise Yvette Grier Kevin W. King Hon. Robert A. B. Reichert Jacob Beil Hon. and Mrs. Daniel P. Griffin William R. King Robert B. Remar Richard W. Bell Marion Cummings Richard S. Griffin Dow N. Kirkpatrick II

39 Mr. and Mrs. John A. Nix S. Andrew Shuping Jr. Robert G. Wellon David M. Burns Jr. Lawrence P. Klamon Elizabeth J. Norman Arnold B. Sidman Ellene Welsh Jeffrey W. Burris Rhonda L. Klein Shirley F. Norris Hon. Howard and Anna McDanal Wetzel Jeanette Burroughs Paul M. Knott David C. Nutter Dee Simms Benjamin T. White Joel R. Callaway Stanley E. Kreimer Jr. Mark D. Oldenburg Donald W. Singleton Sarah E. White Callaway, Braun, Riddle Sonjui L. Kumar Bernadette Olmos Claude M. Sitton Mary J. Wilkes & Hughes, P.C. Mr. and Ms. Outten & Golden LLP Ellen Wansley Smith David S. Wilkin Jefferson C. Callier Steven J. Labovitz Paul W. Painter III Fred O. Smith Jr. George W. Williams Jr. Fern D. Carty Kipler S. Lamar Jon and Kimberly Pannell Margaret R. Smith Connie L. Williford Bryan M. Cavan Eleanor A. Lane Susan Papadopulos Matthew T. Smith John T. Wilson Adam P. Cerbone Lanford, Smith & Kapiloff Dianne P. Parker Putnam C. Smith Deborah J. Winegard Zebulon K. Chandler Allen R. Lang W. Henry Parkman Brian G. Smooke Reginald C. Wisenbaker Jr. Julie Childs Eleanor C. Lanier John P. Partin Edyth and Cubbedge Snow Jr. Bruce A. Wobeck Thomas H. Clarke Sr. Neil Larson Sonya Y. Pass Edward B. Sobel Carol M. Wood Elouise Clinch John L. Latham Lars-Uwe Pera Kevin S. Sobel Christopher A. Wray Marissa G. Connors David N. Lefkowitz W. Ray Persons Roy M. Sobelson W. Scott Wright Robert P. Constantine Jr. Michael E. Lemon, LLC Milton L. Petersen Lawrence S. Sorgen Jeff Z. Xie Leslie F. Corbitt Guy E. Lescault Jerry G. Peterson Rita C. Spalding Helen G. Zalik Stacey W. Cotton Keith D. Leshine Hon. Guy D. Pfeiffer Steven L. Sparger Hon. Gordon R. Zeese Daniel M. Covino Ralph B. Levy Charles E. Phillips Jr. John H. Spillman Jr. Kathryn M. Zickert Susan W. Cox Keith L. Lindsay Therese C. Piazza John T. Stamps III Alex L. Zipperer J. Michael Cranford Stephanie R. Lindsey Steven L. Polk E. Dunn Stapleton Kenneth B. Crawford David S. Lipscomb Elizabeth A. Price John D. Steel DONOR’S CIRCLE Deryl D. Dantzler Lipscomb, Johnson, Sleister, Alison B. Prout David J. Stewart ($150 - $249) Caleb Davies IV Dailey & Smith, LLP Hon. Jill A. Pryor J. Douglas Stewart Anonymous (6) Michael T. DeHaven Jack Long Diane Pye-Tucker Daniel D. Stier Thomas Affleck III Amy Griffith Dever Mary B. Long Mary F. Radford A. Thomas Stubbs Gary M. Alembik Bertis E. Downs IV Sarajane N. Love J. Lynn Rainey P.C. Terrance C. Sullivan Benjamin Allen Maria P. Drinkard John R. Lovell Marie T. Ransley Hon. David R. Sweat James G. Anderson Mitchell D. Durham Charles W. Lykins Kimberly A. Reddy Mike Tafelski Wanda Andrews Julie I. Edelson Jonathan R. Macey Joan S. Redmond Elizabeth V. Tanis Lash S. Askew Donald P. Edwards Leonard T. Marcinko Michael S. Reeves John A. Tanner Jr. Larry A. Auerbach David O. Eldridge Hon. Beverly B. Martin Michael G. Regas II Gilbert M. Taylor Joseph R. Bankoff J. Daniel Falligant Hope L. Martin Mr. and Mrs. Albert P. John E. Taylor E. Noreen Banks-Ware Thomas L. Fitzgerald Yolvondra Martin-Brown Reichert Jr. Harry R. Tear III Robin N. Bargeron Bill and Sandy Flatau Hon. Johnny W. Mason Jr. Stephen A. Reichert Timothy P. Terrell Hon. Patricia D. Barron James C. Fleming Suzanne G. Mason Jaimi A. Reisz Elizabeth F. Thompson Hon. William and Richard L. Ford Jr. Jackson R. Massey Melody Z. Richardson Laura B. Traylor Emily Bartles Joseph H. Fowler James B. Matthews III Joycia C. Ricks Thomas W. Tucker Marshall B. Barton Douglas N. Fox James L. McDaniel Timothy D. Roberts John T. Van Gessel Thomas A. Bauer J. Randall Frost Julian B. McDonnell Jr. Richard B. Roesel Carl R. Varnedoe Hon. Thomas H. Baxley Fulcher Hagler LLP Brad J. McFall Gail E. Ronan Nicki N. Vaughan William G. Bell Jr. Brenda L. Gardner James R. McGibbon Michael Rosenbloum Rex R. Veal John C. Bennett J. Michael and Anne Gray McGlamry Robert G. Rubin Willard R. Via Jr. Richard H. Bennett D. Anne Garner McGoff Law Firm, LLC Charles L. Ruffin Hon. Robert L. Vining Jr. Peter M. Birnbaum Stephen E. Garner Barry B. McGough Charles W. Ruffin Rose Marie Wade Richard H. Bishoff Jerry L. Gentry Marci W. McKenna M. Shayla Rumely Homer J. Walker III Evan J. Black Jodi Brenner Ginsberg Rod G. Meadows Michael J. Rust Hon. Ronit Z. Walker Peter M. Blackford Wendy Glasbrenner C. Robert Melton Hon. W. Louis Sands Walker, Hulbert, Gray Sheri L. Bocher Shona B. Glink Sandra L. Michaels Robert A. Schapiro & Moore, LLP Leslie F. Bond Alan B. Gordon Terry L. Miller Steven R. Schefstad Phillip J. Walsh John P. Booth Lawrence R. Gordon James H. Morawetz Robert W. Scholz Bryan M. Ward Sandra K. Bowen John L. Gornall Jr. Kristin W. Murnahan David M. Schwartz Thomas H. Warren Belinda A. Brady Joan C. Grafstein Roger E. Murray Haley A. Schwartz Janet G. Watts Nancy F. Bramlett Stephanie P. Graham Mari Myer Hon. William J. Self II Joseph D. Weathers Wendy C. Breinig James M. Griffin Jeffrey D. Nakrin Neeli Gandhi Shah Jack M. Webb Walter A. Brill Keith C. Groen Gwyn P. Newsom Shapiro Pendergast John P. Webb Eugene C. Brooks IV Elizabeth L. Guerra Todd C. Newsom & Hasty, LLP David A. Webster Stuart L. Brown Hon. Carolyn Coberly Hall Matthew W. Nichols H. Burke Sherwood Sr. Neal Weinberg William E. Bubsey Rebecca A. Haltzel-Haas Nicholson Revell LLP Edward M. Shoemaker Steven K. Weiner Burnette Law, P.C. Tanisha Latrice Harding

40 Robert K. Harris John T. Mitchell Jr. Robert H. Snyder Jr. V. Sharon Edenfield Hon. Melvin K. Westmoreland Stanley E. Harris Jr. Rivka D. Monheit Susan V. Sommers A. James Elliott in honor of John Cromartie Walter B. Harvey Green B. Moore III John D. Sours Damon E. Elmore Bob and Lynda Wilsonin Dewey N. Hayes Jr. Carol E. Morgan Robert M. Souther Michael G. Geoffroy honor of Roy Barnes William C. Head Lee P. Morgan LeRoy P. Spell Jr. Amy V. Howell Jeffrey F. Hetsko Mr. and Mrs. M. Lane Morrison Charles T. Staples R. William Ide III MEMORIAL GIFTS Hon. P. Harris Hines Neil S. Morrisroe Don E. Stephens Andrew W. Jones John Larry and Brenda D. Battu Donna Stanaland Hix Elizabeth E. Neely Mary J. Stewart Elena Kaplan in memory of Kenny Williams Eva Holland Scott P. Newland Hon. Michael B. Stoddard Charlie Lester Jr. C. Walker Beeson II in David S. Hollingsworth Christopher G. Nicholson Stone & Driggers, LLC Jonathan B. Pannell memory of Kenny Williams David L. Hudgins Mary Ann B. Oakley Anne V. Summerlin Darrell L. Sutton Bourdage family in memory Mr. and Mrs. David E. Hudson Patrick T. O’Connor Jonathan E. Sureck J. Henry Walker IV of Lydia Lee Callender Gary S. Hulsey Michael O’Leary Erica T. Taylor Fern D. Carty in memory Jimmy Hwang Marnique Oliver, LLC Michael B. Terry HONORARIUM GIFTS of Malcolm and Jewel Carty John M. Hyatt Leonard J. Panzitta Torin D. Togut Hon. William P. Adams Victoria M. Collins in memory William R. Jenkins Shalamar J. Parham David R. Toraya in honor of Phil Bond of John W. Collins Thomas E. Jerrell Linda Parker Hon. Amy Mil Totenberg Jennifer Baker in honor of “all Hon. and Mrs. Marion George M. Johnson W. Russell Patterson Jr. William L. Tucker of those who haven’t been Cummings in memory Ken Jones Rita L. Payne Stanley J. Turner able to afford the legal help of John Strain D. Wesley Jordan Debbie C. Pelerose Michael S. Wakefield that they need” David W. Dawson Jr. Sarah O’Beirne Jorgensen Hon. Michael A. Penn J. Henry Walker IV John T. Batson in honor in memory of Kenny Williams Edward W. Kallal Jr. Nicholas J. Pieschel John R. Walker IV of Lisa Krisher Natalie Deriso in memory Lise S. Kaplan W. Warren Plowden Jr. Susan M. Walls Robert Cohen in honor of Linda of Kenny Williams Daniel S. Karen Keri Nicholas Powell W. Frank Ward Warren and Kate Hausmann Damon E. Elmore in memory Mary and Rick Katz Amy M. Power Jeffrey S. Warncke Kristine DeJoseph in honor of Norman B. Elmore Robert J. Kauffman Nancy Prager Dan Wehrenberg of Steven J. DeJoseph Gainesville Northeastern Gary M. Kazin Gail S. Pursel Rachel I. Weiss Hon. Edgar W. Ennis Jr. Georgia Bar Association William W. Keith III David A. Rabin Jonathan E. Wells in honor of Phil Bond in memory of Joe Sartain F. Carlton King Jr. Norman J. Radow Richard A. White Barbara A. Fischer Mary A. Gephart in memory Seth D. Kirschenbaum Vance O. Rankin III Robert J. Wilder in honor of Phil Bond of Kenny Williams Jonathan I. Klein Michelle B. Rapoport Frank B. Wilensky Peter Followill in honor of Thomas S. Gray Jr. in Nancy Mahan Klembus Thomas E. Ray Chandra Wilson Hon. Kenneth B. Followill memory of Kenny Williams Lynn S. Koch Steven M. Reilly Carla E. Young Earline L. Ham in honor Kimberly Jager in memory Sid M. Kresses Reynolds & Reynolds Leslie Zacks of Nancy Terrill of Lydia Lee Callender Jennifer A. Kurle Financial Partners L. Lynn Hogue in honor Mr. and Mrs. Wolfgang Jager in Hon. Jean Miller Kutner Jeffrey P. Richards PAST STATE BAR of Atticus Finch/GSU memory of Lydia Lee Callender Patricia W. Lamar Robert E. Ridgway Jr. PRESIDENT’S CIRCLE Dallas P. Jankowski in honor Paul Kilpatrick Jr. in memory John Lamberski Brian D. Rogers William D. Barwick of David Patterson of Hon. Harold Clarke Gregory G. Lawton Walter P. Rowe Richard Y. Bradley Ann R. Johnson in honor Linda S. Lowe in memory J. Alvin Leaphart Cornelia S. Russell Bryan M. Cavan of Albert J. Reichert Jr. of Kay Young David M. Leonard Carmel W. Sanders Harold T. Daniel Jr. Katherine McAulay Kalish Caren Lynch in memory Harold S. Lewis Jr. Kimberly K. Saunders Benjamin F. Easterlin IV in honor of Phil Bond of Lydia Lee Callender Risa L. Lieberwitz C. Murray Saylor A. James Elliott Lanford, Smith & Kapiloff Michael S. and Peggy Meyer Joel I. Liss Jacquelyn H. Saylor David H. Gambrell in honor of Phil Bond Von Bremen in memory George W. Little III Claude F. Scott Jr. W. Stell Huie Marcia F. McCune in of Rusty Gunn Robert K. Long Leslie A. Shad Paul Kilpatrick Jr. honor of Dina’s marriage Mr. and Mrs. M. Lane Rebecca Mullin Lough Stanton J. Shapiro Linda A. Klein Felix A. Montanez Morrison in memory of Hubert C. Lovein Jr. Lois D. Shingler Charlie Lester Jr. in honor of Heidi Behnke Hon. B. Avant Edenfield L. Joseph Loveland Jr. Ann A. Shuler Patrise M. Perkins-Hooker Susan Papadopulos in honor A. M. Christina Petrig in Peter C. Lown Dennis E. Siegel Charles L. Ruffin of Michael Lascala memory of Lydia Lee Callender John F. Lyndon Beverlee E. Silva Kenneth L. Shigley Rachael B. Schell Robert and Donna Pollet in Hon. James E. Massey Janice Singer-Capek Cubbedge Snow Jr. in honor of Phil Bond memory of Andrew Duncan Lee Todd K. Maziar Patience R. Singleton J. Douglas Stewart Ryan A. Schneider Lois M. Schmidt and C. James McCallar Jr. Hon. Lamar W. Sizemore Jr. in honor of Bob Webb John W. Schmidt in memory Susan G. McCathran Edward K. Smith PAST YLD E. Dunn Stapleton in honor of Lydia Lee Callender M. Faye McCord George B. Smith III PRESIDENT’S CIRCLE of Norman Spence Kenneth L. Shigley in Angus N. McFadden George B. Smith IV William D. Barwick Susan Pearce Tate in honor memory of Cliff Brasher Angela K. McGowan John H. Smith Hon. Joshua C. Bell of Phyllis Holmen John D. Sours in memory Hon. T. Penn McWhorter Jon P. Smith Thomas E. Dennard Jr. Neal Weinberg in honor of Rep. Harry Geisinger Lester M. Miller Robert B. Smith Joseph W. Dent of Nancy Terrill

41 Isabelle Thacker in memory Georgia Legal Services John P. Fry R. William Ide III Marcia W. Borowski of Lydia Lee Callender Foundation David H. Gambrell Forrest B. Johnson Edward E. Boshears Ashlee Harrison Vaught in The Georgia Legal Services Ben and Michele Garren Jr. Mary and Rick Katz Rosemary M. Bowen memory of Peter Johnson Foundation is an independent Jack Hardin Paul S. Kish Thomas A. Bowman 501(c)(3) nonprofit Harris & Liken, LLP William H. Kitchens Barbara S. Boyer IN-KIND GIFTS organization with a mission to Phyllis J. Holmen Leslie and Judy Klemperer John H. Bradley Rachael Henderson build an endowment to sustain Hunter, Maclean, Exley Rita J. Kummer Daryl Braham Joshua M. Peltier the work of the Georgia & Dunn, P.C. John F. Lyndon Thomas B. Branch III Legal Services Program for Inglesby, Falligant, Horne, Celeste McCollough Dianne Brannen 2015 ASSOCIATES’ generations to come. Courington & Chisholm, P.C. Jane and Randy Merrill Bill Broker CAMPAIGN FOR LEGAL Mary B. James Caitlin Miller Brooks Law Firm SERVICES Building a Foundation D. Wesley Jordan Jenny K. Mittelman and The Brown Firm, LLC Ryan W. Babcock for Justice Paul Kilpatrick Jr. William C. Thompson George E. Butler II Robert Beard The following individuals and Mr. and Mrs. Lawrence P. The Oldenburg Law Firm John D. Carey Elizabeth Helmer law firms are contributors to Klamon Carl S. Pedigo Jr. John R. Carlisle King & Spalding LLP the “Building a Foundation for Linda A. Klein and Hon. George and Thomas D. Carr Ben Alan McJunkin Justice Campaign” launched Michael S. Neuren Anne Peagler Hon. Edward E. Carriere Jr. in 2001 by the Georgia Legal Catherine E. Long J. Robert Persons Nickolas P. Chilivis VENDORS Services Foundation. Willis L. Miller III Steven L. Pottle Edward B. Claxton III Barracuda Networks Roger E. Murray Jill A. Pryor James H. Coil III ACC Business JUSTICE BUILDERS Gretchen E. Nagy Robert B. Remar Arlene L. Coleman CDW ($1,000 & Up) Charles L. Newton II Udai V. Singh Mary C. Cooney Cisco Networks Anonymous (4) Kenneth S. Nugent, P.C. Lynn Smith Hon. Lawrence A. Cooper Colotraq Robert L. Allgood Lynne R. O’Brien J. Lindsay Stradley Jr. Philip B. Cordes Digital Concierge Joel S. Arogeti Patrick T. O’Connor UNUM Group Hon. John D. Crosby at She’s Wired Mr. and Mrs. R. Lawrence Thomas E. Prior Patrick F. Walsh Robert M. Cunningham FastNeuron Inc. Ashe Jr. Hon. Mae C. Reeves David D. and John D. Dalbey Frazier Marketing & Design Alice H. Ball Robbins Geller Rudman Melody Wilder Wilson Dalton Regional Office of the Hewlett Packard Joseph R. Bankoff & Dowd LLP Georgia Legal Services Program InfoExpress Patricia T. Barmeyer Mr. Alan F. Rothschild Jr. OTHER DONORS Hugh M. Davenport Microsoft The Barnes Law Group, LLC Sanford Salzinger Anonymous (9) Thomas C. Dempsey PSTI Ansley B. Barton J. Ben Shapiro Jr. Anthony H. Abbott Joseph W. Dent Peachtree Benefits Group James L. Bentley III Silver & Archibald, LLP Bettye E. Ackerman Mary Irene Dickerson PrintTime Jean Bergmark Ethelyn N. Simpson Aaron I. and Gregory J. Digel RGI Lynne Borsuk and Hon. Philip C. Smith Judith M. Alembik Robert N. Dokson StormWood Robert Smulian Charles W. Surasky Evan M. Altman John L. Douglas Techbridge James W. Boswell III Darrell L. Sutton Peter J. Anderson J. Michael Dover Unidesk Bouhan Falligant LLP Sutton Law Group, LLC Wanda Andrews Lester Z. Dozier Jr. Vmware Bouhan, Williams & Levy, LLP Michael H. Terry Janet M. Ansorge Dozier Law Firm, LLC Phil Bradley and Randolph W. Thrower Anthony B. Askew DuBose Law Group LLC 2015 CAMPAIGN Cathy Harper William A. Trotter III Cathy and Bucky Askew Terri H. Duda COMMITTEE Jeffrey and Nancy Bramlett Thomas W. Tucker Bruce and Lisa Aydt Kathryn Durham, J.D., P.C. Robert J. “Bob” Kauffman James J. Breen Weissman, Nowack, Curry S. C. Baird Randy J. Ebersbach President, State Bar of Georgia William A. Brown & Wilco, P.C. Michelle R. Barclay Robert G. Edge Patrise M. Perkins-Hooker Mr. and Mrs. Aaron L. William F. Welch Robert A. Barnes William A. Erwin Immediate Past President Buchsbaum Derek J. White Charles H. Battle Jr. Roslyn S. Falk State Bar of Georgia Sheryl L. Burke Diane S. White Henry R. Bauer Jr. William H. Ferguson Jeff Davis Business Law Section of the Timothy W. Wolfe Hon. T. Jackson Bedford Jr. Karen J. Fillipp Executive Director State Bar of Georgia Lamont A. Belk Thomas M. Finn State Bar of Georgia Thalia and Michael C. Carlos JUSTICE PARTNERS Hubert J. Bell Jr. Daisy H. Floyd Brinda Lovvorn Foundation, Inc. ($500 - $999) William G. Bell Jr. Ira L. Foster Director of Membership John A. Chandler Anonymous (2) Kevin E. Belle Isle Samuel A. Fowler Jr. State Bar of Georgia James A. “Jock” Clark Renee C. Atkinson William T. Bennett III Paula J. Frederick Judy Hill and Mary Jane Robertson JWP Barnes Bentley, Bentley & Bentley Christine A. Freeman Assistant Director David H. Cofrin Paul R. Bennett Harvey G. Berss Gregory L. Fullerton of Membership Steven M. Collins Wendy C. Breinig Paula L. Bevington Peter B. Glass State Bar of Georgia Harold T. Daniel Jr. Mary Jane Cardwell Terry C. Bird Susan H. Glatt Georgia Legal Services Benjamin S. Eichholz, P.C. Randall A. Constantine Martin J. Blank Hon. Martha K. Glaze Board of Directors J. Melvin England John H. Fleming David J. Blevins Judy Glenn State Bar of Georgia James C. Fleming Kevin B. Getzendanner Mr. and Mrs. Charles R. Bliss Yvonne K. Gloster

42 Morton J. Gold Jr. L. Robert Lake A. Sidney Parker Frederick D. Underwood Mary Mendel Katz Alan B. Gordon Kipler S. Lamar Mr. and Mrs. Dianne P. Parker Joseph M. Ventrone Allegra J. Lawrence-Hardy Kevin R. Gough Clifford S. Lancey John P. Partin and Jeanne Broyhill John R. B. Long Mark P. Grant Eleanor C. Lanier G. Cleveland Payne III, PC Jennifer B. Victor Evelyn Y. Teague Thomas S. Gray Jr. Joseph Lannucci Cathy Peterson Rose Marie Wade Thomas W. “Tommy” Tucker Gary G. Grindler Allegra J. Lawrence-Hardy Hon. Albert M. Pickett Christopher A. Wagner Divida Gude Gregory G. Lawton Loretta L. Pinkston Hon. Ronit Z. Walker We appreciate our donors and Cheryl L. Haas Hon. Kelly A. Lee John L. Plotkin Walker Wilcox Matousek LLP take great care in compiling Stephen H. Hagler Stanley M. Lefco Linda L. Holmen Polka Ellene Welsh the Honor Roll of Contributors. Nedom A. Haley Esther and Kristian Leibfarth Jeffrey N. Powers Brian W. Wertheim If we have inadvertently J. Edward Hall Zane P. Leiden Thompson T. Rawls II Brian K. Wilcox omitted your name, or if Warren R. Hall Jr. R. O. Lerer Michael S. Reeves Mark Wilcox your name is incorrect in the Christopher Harrigan Lightmas & Delk Clinton D. Richardson Robert J. Wilder records, we apologize and Deborah H. Harris Jack N. Lincoln Ritter Law Firm, LLC Frank B. Wilensky encourage you to contact Kirk E. Harris, Esq. J. Rodgers Lunsford III Timothy D. Roberts Paul C. Wilgus the Development Office at Jeanne D. Harrison Herman O. Lyle Richard B. Roesel Kathryn B. Wilson 404-206-5175, so that we Alexsander H. Hart Dennis J. Manganiello Carmen Rojas Rafter Norman D. Wilson can correct our records and James A. Hatcher Edwin Marger James H. Rollins Bob and Lynda Wilson acknowledge you properly in Karen G. Hazzah Andrew H. Marshall Charles L. Ruffin William N. Withrow Jr. the future. Some donors have Gregory K. Hecht H. Fielder Martin David A. Runnion Leigh M. Wilco and requested anonymity. Philip C. Henry Raymond S. Martin Dorothy W. Russell Carolyn C. Wood Kenneth M. Henson Jr. F. P. Maxson Phillip B. Sartain Hugh M. Worsham Jr. The Georgia Legal Services Mr. and Mrs. Andrew M. James McBee Christopher G. Sawyer Brian D. Wright Program is a non-profit Hepburn Jr. Elizabeth L. McBrearty Otis L. Scarbary Hon. Lawrence D. Young law firm recognized as a Sharon B. Hermann Mary F. McCord Cathy L. Scarver Daniel D. Zegura 501(c)(3) organization by Chris Hester Robert L. McCorkle III S. Alan Schlact Norman E. Zoller the IRS. Gifts to GLSP are Jeffrey F. Hetsko James T. McDonald Jr. Bryan D. Scott tax-deductible to the fullest Charles F. Hicks Jane S. McElreath Claude F. Scott Jr. 2015 HONORARIUM GIFTS extent allowed by law. Jon E. Holmen Christopher J. McFadden Janet C. Scott DuBose Law Group LLC Matthew A. Horvath James B. McGinnis Martin J. Sendek in honor of R. William Ide The Georgia Legal Services Edward M. Hughes McKenney & Jordan Mark A. Shaffer Bob and Lynda Wilson in honor (GLS) Foundation is Hon. Carol W. Hunstein Hon. Jack M. McLaughlin Hon. Marvin H. Shoob of Michael J. Bowers, Esq. recognized as a 501(c)(3) Cindy Ingram Merrill & Stone, LLC Ann A. Shuler Brian D. Wright in honor nonprofit organization by Initial Public Offering Metropolitan Regional Viveca Sibley of Richard Wright the IRS. Gifts to the GLS Securities Litigation Information Sysytem Inc. Silvis, Ambrose Foundation are tax-deductible Hon. James T. Irvin Michael S. and & Lindquist, P.C. 2015 MEMORIAL GIFTS to the fullest extent allowed Hon. Phillip Jackson Peggy Meyer Von Bremen Douglas K. Silvis Judith M. Alembik in memory by law. Cathy Jacobson Garna D. Miller John E. Simpson of Aaron I. Alembik J. Scott and Tanya Jacobson Martha A. Miller George B. Smith James C. Fleming in memory To make a contribution Jackson & Schiavone Simon A. Miller Jay I. Solomon of Gov. Carl E. Sanders Go online at www.glsp.org, or Jaurene K. Janik Terry L. Miller David N. Soloway Hon. Jack M. McLaughlin mail your gift to Georgia Legal W. Jan Jankowski C. Wingate Mims John D. Sours in memory of Hon. Ralph Services, Development Office, Weyman T. Johnson Jr. John T. Minor III Thomas A. Spillman Ewell Carlisle 104 Marietta St., Suite 250, Howard H. Johnston R. Carlisle Minter State Bar of Georgia Lynn Smith in memory Atlanta, GA 30303. Jones & Swanson Mitchell & Shapiro, LLP Mason W. Stephenson of Lydia Lee Callender Jane M. Jordan Jay D. Mitchell Michael P. Stevens Lise S. Kaplan Ann Moceyunas Hon. Michael B. Stoddard Georgia Legal Services Melinda M. Katz H. Bradford Morris Jr. Joseph F. Strength Foundation Robert N. Katz William A. Morrison C. Deen Strickland Board of Directors Lisa Kennedy Diane M. Mosley Jay L. Strongwater Joseph R. Bankoff Robbman S. Kiker James B. Muhlbach David R. Sweat Patricia T. Barmeyer Vicky Kimbrell Jerold L. Murray Robert E. Talley Lynn Y. Borsuk Jeff S. Klein The National Association Jeffrey D. Talmadge James W. Boswell III Jonathan I. Klein of Realtors Susan C. Tarnower Phillip A. Bradley Thank you for your support. Simone V. Kraus NAR Legal Affairs Jackie Taylor Paul T. Carroll III Hon. Phyllis A. Kravitch James A. Neuberger William M. Tetrick Jr. James A. “Jock” Clark Alex Kritz Amber L. Nickell G. William Thackston Harold T. “Hal” Daniel Jr. Edward B. Krugman William S. Ortwein Daniel R. Tompkins III C. Ben Garren Jr. Harry S. Kuniansky Linda Ann Pace William L. Tucker Jack Hardin Steven J. Labovitz Rakesh N. Parekh, PC Leslie W. Uddin Kathleen Horne

43 Bench & Bar

Kudos > Berman Fink Van Horn Ranks > Duane Morris LLP announced that announced that shareholder Jeffrey N. partner Rebecca Lamberth was elected Berman received the 2016 Chair’s co-head of the commercial, securities Award in recognition for his leadership and antitrust litigation division. and contributions to The William Lamberth practices in the area of securi- Breman Jewish Home. The William ties and complex commercial litigation, Breman Jewish Home provides high quality health representing public and private companies, includ- care and wellness services to older adults through- ing REITs, and has extensive experience in complex out all stages of aging as well as education and business and securities litigation, securities disclo- support to their families and the community, in an sure and corporate governance. engaging, caring and dignified manner consistent with Jewish heritage and values. > McKenney and Froelich announced that Jerome J. Froelich Jr. was elected > Chaiken Klorfein LLC announced that president of the American Board of attorney Stephen R. Klorfein was select- Criminal Lawyers. The American Board ed to serve on the board of directors for of Criminal Lawyers was founded as an the Georgia Chapter of the Exit Planning exclusive national legal honorary soci- Institute. The institute is a national orga- ety for outstanding criminal trial lawyers. nization for professionals who specialize in estate planning for individuals and their businesses. > Moore Ingram Johnson & Steele, LLP, announced that associate Christopher > Mills Paskert Divers P.C. announced that P. Keith D. Troutman was co-awarded the 2015 Lichtman has become a registered mediator and Attorney of the Year by Georgia arbitrator through the Georgia Commission on Lawyers for the Arts for providing the Dispute Resolution. In addition to continuing to most pro bono services to artists and represent clients in litigation, he has begun serving arts organizations during the year. Georgia Lawyers as a mediator and arbitrator in select cases, focused for the Arts is a nonprofit organization that pro- largely on the construction, surety, fidelity and vides legal assistance and educational program- insurance coverage practice areas. ming to artists and arts organizations. > Burgoon Law Firm, LLC, announced On the Move that attorney Brian D. Burgoon was re- elected as an out-of-state representa- In Atlanta tive on The Florida Bar Board of > FordHarrison Governors. The board sets policy for LLP announced the more than 102,000 member bar and the addition of oversees lawyer regulation, discipline and ethics. Joy White as counsel and David The Van Dora Law Firm announced R. Anderson and > White Anderson Lewis that attorney Jeremiah T. Van Dora Chelsey M. Lewis was installed as president of the as associates. White’s practice focuses on employ- Northern Judicial Circuit Bar ment law, complex commercial litigation and class Association. The Northern Circuit action defense. Anderson’s practice focuses on the includes Elbert, Franklin, Hart, Madison representation of clients in disputes related to labor and Oglethorpe counties. and employment law. Lewis represents employers in claims relating to labor and employment law. > The Council of Superior Court Judges The firm is located at 271 17th St. NW, Suite 1900, named Hon. A. Wallace Cato as the Atlanta, GA 30363; 404-888-3800; Fax 404-888-3863; recipient of the Emory Findley Award www.fordharrison.com. during the 2016 annual meeting for his outstanding judicial service. The award > Stanton Law LLC announced the addition of Alex is given to honor a judge who exempli- Barfield as an associate. Barfield’s practice includes fies Judge Findley’s virtues of visionary leadership, litigation related to employment contracts and the resolve and dedication. Fair Credit Reporting Act, as well as FLSA collec-

44 Georgia Bar Journal Bench & Bar

tive actions at the pre-certification and de-certifica- Parkway, Suite 2300, Atlanta, GA 30339; 770-951- tion stage. The firm is located at 410 Plasters Ave. 2700; Fax 770-951-2200; www.wbmfamilylaw.com. NE, Suite 200, Atlanta, GA 30324; 404-881-1288; www.stantonlawllc.com. > Jones Day announced the > Parker Poe election of Adams & Casey F. Bernstein LLP Bradford, Jason

announced the Bradford Burnette Drew T. Burnette and opening of its Kendel Drew to . Bradford’s practice focuses on critical envi- Florence Carroll Binns Atlanta office partner along with the ronmental matters across the United States. Burnette’s addition of Robert Florence as partner and Karen practice focuses on state and federal appeals and Carroll and Micheal Binns as counsel. Florence complex trial litigation. Drew’s practice focuses on represents the pharmaceutical industry. Carroll advising clients in connection with a wide range of focuses her practice on complex intellectual prop- commercial finance transactions, including syndi- erty litigation and counseling with a specific empha- cated and single bank credit facilities, consisting of sis on pharmaceutical and biotechnology-related cash flow loans, asset-based loans, acquisition financ- patent matters, including Hatch-Waxman litigation. ings, real estate based loans and cross-border trans- Binns practices primarily in the area of intellectual actions. The firm is located at 1420 Peachtree St. NE, property patent litigation. The firm is located at Suite 800, Atlanta, GA 30309; 404-521-3939; Fax 404- 3355 Lenox Road, Suite 750, Atlanta, GA 30326; 678- 581-8330; www.jonesday.com. 690-5750; Fax 404-869-6972; www.parkerpoe.com. > Balch & Bingham LLP > Smith, announced the addition of Gambrell & Hugh B. McNatt and Hugh Russell, LLP, Peterson III as partners. announced McNatt concentrates his

the addition McNatt Peterson practice on trucking litiga- of Eugene D. tion, products litigation, Bryant Sebastian Weeks Bryant, Julie electrical utility litigation and aircraft litigation. Sebastian and John F. Weeks IV as partners. Bryant’s Peterson specializes in litigation relating to person- practice focuses on transactional real estate, repre- al injury, banking and business issues. The firm is senting lenders and developers in commercial real located at 30 Ivan Allen Jr. Blvd. NW, Suite 700, estate transactions, general real estate and special Atlanta, GA 30308; 404-261-6020; Fax 404-261-3656; assets. Sebastian focuses on corporate law, including www.balch.com. mergers and acquisitions and corporate finance with publicly and privately held companies. Weeks focus- > Dentons announced the addition of es on commercial litigation. The firm is located at Jennifer R. Williams as partner. 1230 Peachtree St. NE, Suite 3100, Atlanta, GA 30309; Williams joins the firm’s corporate 404-815-3500; Fax 404-815-3509; www.sgrlaw.com. group, providing a comprehensive package of legal services to private > Hunton & Williams LLP announced equity portfolio companies and similar the addition of Andrew Koelz as an companies. The firm is located at 303 Peachtree St. associate. Koelz joins the retail and con- NE, Suite 5300, Atlanta, GA 30308; 404-527-4000; sumer products litigation practice. The Fax 404-527-4198; www.dentons.com. firm is located at 600 Peachtree St. NE, Suite 4100, Atlanta, GA 30328; 404-888- > Greenberg Traurig, LLP, announced the addition 4000; Fax 404-888-4190; www.hunton.com. of Mark E. Grantham as commercial litigation practice co-chair and Ann M. Byrd as of counsel. > Warner, Bates, McGough, McGinnis & Grantham’s practice experience focuses on trial and Portnoy announced the election of appellate work, in both state and federal courts, and Kynna Garner to partner. Garner’s prac- complex arbitration matters in domestic and inter- tice focuses on domestic and family law. national arbitration forums. Byrd’s practice focuses The firm is located at 3350 Riverwood on complex commercial litigation and product

April 2016 45 Bench & Bar

liability. The firm is located at 3333 Piedmont Road > BakerHostetler announced NE, Suite 2500, Atlanta, GA 30305; 678-553-2100; the election of Lisa N. Fax 678-553-2212; www.gtlaw.com. Collins and Kristen Woodrum to partner. > Collins is a member of the Collins Woodrum intellectual property group, supervisor of the firm’s IP indemnification recovery team and a seasoned litigator who helps companies defend their products and

Baltich Frist Giles Harvel intellectual property. Woodrum is a member of the business group who concentrates her practice in the area of health care law, advising health care systems, providers and companies in regulatory and compliance matters. The firm is located at 1170 Peachtree St. NE, Suite 2400, Atlanta, GA 30309; 404-459-0050; Fax 404-459-5734; www.bakerlaw.com.

Helmer Houser Kitchens Stanford > Alston & Bird has announced the election of Dane A. Baltich, David S. Frist, Lauren P. Giles, Brian D. Harvel, Elizabeth Helmer, Donald Houser, W. Scott Kitchens and Clifford S. Stanford to partner. Baltich concentrates his practice on patent solicitation in Ganz Jett Kesler Wainwright electrical and computer-related technologies, in addition to counseling clients on patent portfolio management, intellectual property licensing and patent infringement, validity and enforceability. Frist focuses on patent litigation and enforcement. Giles advises payments industry clients on transaction, regulatory and strategic matters, including negotiating card Williams Dabbiere Flemming Spivey issuance and acceptance programs, developing new payment products and establishing joint ventures. Kilpatrick Townsend & Harvel focuses his practice on complex tax structur- Stockton announced the ing and planning for domestic and international election of Josh Ganz, John businesses, assisting clients with investments and Jett, Thomas Kesler, Renae operations. Helmer represents plaintiffs and defen- Wainwright and Tiffany

dants in complex commercial litigation, including Huff Guebert Williams to partner. The unfair competition, antitrust, intellectual property firm also announced the and trade secrets and contractual disputes, in such addition of Anil Patel as counsel and Courtney industries as technology, insurance, manufacturing, Dabbiere, Forrest Flemming, Elizabeth Spivey, Jason consumer products and media. Houser represents Huff and Anthony Guebert as associates. Ganz clients in federal and state courts in privacy and anti- focuses his practice on outsourcing, strategic alliances, trust litigation in such industries as health care, tech- technology licensing, IT procurement projects and nology and consumer products. Kitchens represents other complex commercial transactions. Jett repre- public and private companies in a variety of corpo- sents retail and technology clients in litigation and rate transactions, including mergers and acquisi- arbitration. Kesler focuses his practice on mergers and tions, outsourcing and technology transactions, pri- acquisitions, joint ventures and general corporate rep- vacy matters, joint ventures and corporate gover- resentations. Wainwright concentrates her practice on nance. Stanford counsels U.S. and foreign banks and counseling clients on intellectual property strategy, nonbank financial services companies on a broad including worldwide patent portfolio prosecution and range of regulatory concerns affecting the banking, management. Williams focuses her practice on coun- financial services and payments industries. The firm seling public and private companies in areas of is located at 1201 W. Peachtree St., Suite 4900, domestic and foreign patent portfolio management, Atlanta, GA 30309; 404-881-7000; Fax 404-881-7777; intellectual property evaluation and licensing, and www.alston.com. patent litigation. Patel joins the intellectual property

46 Georgia Bar Journal Bench & Bar

department and patent litigation team. Dabbiere joins > Baker, Donelson, Bearman, the patent litigation team in the intellectual property Caldwell & Berkowitz, PC, department. Flemming joins the firm’s trademark and announced the addition of copyright team in the intellectual property depart- Bryan Busch and Matthew ment. Spivey focuses her practice on the representa- Norton as shareholders, tion of national cellular companies in the leasing of Brian D. Pierce as of coun- Parham Stewart ground, tower, rooftop and in-building space for com- sel and Phil Parham III, munications facilities. Huff joins the firm’s chemistry David Stewart and Laura Mirmelli as associates. and life sciences team in the intellectual property Busch represents corporate clients in all types of department. Guebert joins the mechanical and medi- business disputes, including breach of contract, cal device team in the intellectual property depart- fraud, breach of fiduciary duties, securities litigation ment. The firm is located at 1100 Peachtree St. NE, and business torts. Norton focuses his practice on Suite 2800, Atlanta, GA 30309; 404-815-6500; Fax 404- real estate-related matters and secured transactions 815-6555; www.kilpatricktownsend.com. collateralized by both real estate and other property. Pierce concentrates his practice in transactional law, > which includes both commercial and residential real estate. Parham and Stewart both join the new litigator group. Mirmelli’s practice is primarily concen- trated on the representation of financial institutions in connection with distressed real estate and com-

Bain Lowndes Scarbrough Henner mercial loans. The firm is located at 3414 Peachtree Road NE, Suite 1600, Atlanta, GA 30326; 404-577- Jones Walker LLP 6000; Fax 404-221-6501; www.bakerdonelson.com. announced the addition of Karen E. Bain, Jennifer S. > Lowndes and Tyler P. Scarbrough as special

Sweeney Theriot counsel and Joseph P. Henner, Neal J. Sweeney and Chad V. Theriot as partners. Bain focuses her Baltich Christopherson Garavaglia Lewis practice on construction and infrastructure projects and construction litigation. Lowndes focuses her practice on complex commercial construction projects in various industries, working closely with construction managers, general contractors, sub- contractors and developers as well as owners in the public and private sectors. Scarbrough focuses on Westby Akers Case Giesen construction and infrastructure projects, construction litigation, government contracting and alterna- Nelson Mullins Riley & tive dispute resolution. Henner represents clients in Scarborough LLP announced the construction industry working closely with the election of Branden public and private owners, developers, large gen- W. Baltich, Yasamine eral contractors, specialty government subcontrac- J. Christopherson, Anne tors and sureties. Sweeney focuses exclusively on Jones Ray Marie Garavaglia, Katherine construction law and government contracts for M. Lewis, and Lucas A. major infrastructure projects such as transit, air- Westby to partner. The firm also announced the ports, highways, wastewater treatment and tun- addition of George F. Akers, Jennifer G. Case, nels. Theriot focuses his practice on major public Jonathan G. Giesen, Christina M. Jones and George and commercial construction and infrastructure S. Ray as associates. Baltich’s practice focuses in the projects representing both domestic and interna- areas of corporate governance, financial institutions, tional clients across a broad spectrum of construc- corporate law, mergers and acquisitions, private tion, contracting and procurement activities. The equity and venture capital, and securities. firm is located at 1360 Peachtree St. NE, Suite 1030, Christopherson focuses her practice on commercial Atlanta, GA 30309; 404-870-7500; Fax 404-870-7501; real estate finance matters including master repur- www.joneswalker.com. chase agreements and CMBS lending. Garavaglia

April 2016 47 Bench & Bar

focuses her practice on commercial transactions, > Durham Law Firm, P.C., commercial real estate, leasing and structured announced the addition of finance, corporate law and real estate financial ser- Grant K. Usry and Melissa vices. Lewis focuses her practice on commercial real C. Bray as associates. Both estate, representing investors and sponsors on pur- Usry and Bray are trial

chases, sales and development of commercial prop- Usry Bray attorneys who focus on per- erties while also working with both lenders and sonal injury, specifically borrowers on a variety of real estate finance matters. truck and auto collision as well as criminal defense. Westby focuses on commercial litigation, products The firm is located at 2350 Washington Road, liability litigation and false advertising litigation. Augusta, GA 30904; 706-738-7111; Fax 706-738-8010; Akers focuses his practice in the areas of corporate www.durhamlawfirm.net. law, emerging growth and venture capital, and mergers and acquisitions. Case focuses her practice In Columbus on employment law and business litigation. Giesen > focuses his practice on corporate law, assisting clients in the drafting of merger/purchase agreements and related ancillary agreements, resolutions and due diligence documents. Jones focuses her practice

in the areas of mergers and acquisitions, securities Mize Pound Rothschild Moore and corporate law. Ray focuses his practice on litigation. The firm is located at 201 17th St. NW, Suite Page, Scrantom, Sprouse, Tucker and Ford, P.C., 1700, Atlanta, GA 30363; 404-322-6000; Fax 404-322- announced the addition of George W. Mize Jr., 6050; www.nelsonmullins.com. William C. Pound and Alan F. Rothschild Jr. as shareholders and LaRae D. Moore as an attorney. > Thompson Hine LLP Pound’s practice areas include commercial loan trans- announced the addition of actions, commercial and residential real estate transac- Fareed Kaisani and Jake tions, property tax appeals, and business and corpo- Evans as associates. Kaisani rate law. Mize’s areas of concentration include real joins the business restruc- estate, commercial lending, business, corporate and

Kaisani Evans turing, creditors’ rights and franchise law. Rothschild’s practice focuses on estate bankruptcy practice group. planning, taxation and general business law. Moore Evans joins the business litigation practice group. concentrates her practice in the area of general civil The firm is located at 3560 Lenox Road, Suite 1600, litigation. The firm is located at 1111 Bay Ave., Third Atlanta, GA 30326; 404-541-2900; Fax 404-541-2905; Floor, Columbus, GA 31901; 706-324-0251; Fax 706- www.thompsonhine.com. 243-0417; www.columbusgalaw.com. > Scroggins & Williamson, P.C., has relocated. The In Cordele firm continues to focus on business bankruptcy, out > Rainwater, Gibbs and Wright LLP of court workouts, restructuring debtors’ and credi- announced the addition of Benjamin tors’ rights and commercial litigation. The firm is L. Wright Jr. as a partner. Wright’s now located at 440 Northside Parkway, Suite 450, practice focuses on all aspects of civil Atlanta, GA 30327; 404-893-3880; Fax 404-893-3886; litigation with an emphasis on domes- www.swlawfirm.com. tic practice, personal injury litigation and real estate. The firm is located at 109 E. 14th In Augusta Ave., Cordele, GA 31015; 229-273-5202; Fax 229- > Kilpatrick Townsend & Stockton 273-1175; www.swgalaw.com. announced the election of Mark Reeves to partner. Reeves focuses his practice In Decatur on litigation, devoting a majority of his > Michael S. Webb announced the return time to the representation of Indian of Webb & Webb Attorneys at Law as tribes. The firm is located at 1450 Greene a general trial practice firm. Webb St., Suite 230, Augusta, GA 30901; 706-724-2622; Fax focuses on criminal defense and per- 706-823-4204; www.kilpatricktownsend.com. sonal injury law with plans to expand the practice to include communication law and regulation. The firm is located at 160

48 Georgia Bar Journal Bench & Bar

Clairemont Ave., Suite 340, Decatur, GA 30030; 404- > Bouhan Falligant announced the elec- 458-3119; Fax 404-377-0106. tion of Benjamin Karpf to partner. Karpf’s practice focuses on intellectual In Macon property law and commercial transac- > WatsonMcCallum changed its name to Watson tions, including drafting and negotiat- Legal Group. Watson Legal Group continues to ing commercial contracts, corporate focus on providing business, transaction law, liti- matters and intellectual property litigation. The gation and bankruptcy expertise to its clients. The firm is located at 447 Bull St., Savannah, GA 31401; firm is located at 111 Arkwright Landing, Suite D, 912-232-7000; Fax 912-233-0811; www.bouhan.com. Macon, GA 31210; 478-254-6033; Fax 478-254-6031; www.mswatsonlegal.com. In Valdosta > Langdale Vallotton, LLP, announced the addi- In Marietta tion of James R. Miller as partner and Christina > The Crosson Law Group announced the L. Folsom and Katherine A. Gonos as of counsel. addition of Ali J. Awad as an associate. Miller handles a variety of civil litigation matters Awad’s practice areas include personal and also maintains a general transactional prac- injury and business litigation, with par- tice. Folsom focuses on civil litigation, including ticular focus on non-English speaking the representation of creditors in bankruptcy and clients. The firm is located at 3417 Canton educators in disciplinary and employment actions. Road, Suite 502, Marietta, GA 30066; 678-909-0770; Gonos primarily handles criminal and domestic Fax 678-439-1825; www.crossonlawgroup.com. matters. The firm is located at 1007 N. Patterson St., Valdosta, GA 31601; 229-244-5400; Fax 229-244- In Norcross 0453; www.langdalevallotton.com. > Thompson, O’Brien, Kemp & Nasuti, P.C., announced the addition of for- In Whigham mer Superior Court Judge Michael C. > The Law Office of Joshua C. Bell, LLC, Clark as of counsel. Clark’s practice announced the addition of Tabitha Payne focuses in the areas of trial practice, as an associate. Payne will concentrate in personal injury and wrongful death, all areas of general practice law. The firm constitutional rights, business litigation and alter- is located at 102 W. Broad Ave., Whigham, native dispute resolution. The firm is located at GA 39897; 229-762-4000; Fax 229-762- 40 Technology Parkway S, Suite 300, Norcross, 4010; www.joshuabell.net. GA 30092; 770-925-0111; Fax 770-925-8597; www. tokn.com. In Birmingham, Ala. > Balch & Bingham LLP announced the In Savannah election of M. Stanford ”Stan“ Blanton > Hall, Arbery, Gilligan, to managing partner and chair of the Roberts & Shanlever LLP executive committee. Blanton’s practice announced the addition of focuses on representation of the own- Kristen Goodman and ers, operators and purchasers of electric Maury Bowen as partners. generating facilities with special emphasis on com-

Goodman Bowen Goodman handles a vari- mercial nuclear development, regulation and poli- ety of business and litiga- cy. The firm is located at 1901 Sixth Ave. N, Suite tion matters with a special emphasis on employ- 1500, Birmingham, AL 35203; 205-251-8100; Fax ment law, formation of and risk allocation for 205-226-8799; www.balch.com. businesses, trade secrets and health care law. Bowen advises and defends corporate clients on a In Washington, D.C. wide variety of issues including lawsuits, arbitra- > Covington & Burling LLP announced tions, administrative charges, employment deci- the election of Jason Fowler to partner. sions of all types, collective bargaining issues and Fowler focuses his practice on high- multi-employer benefit plan management. The stakes patent litigation in both the high- firm is located at 100 Commercial Court, Suite D, tech and pharmaceutical spaces. The Savannah, GA 31406; 912-777-6636; Fax 912-417- firm is located at 850 Tenth St. NW, 2031; www.hagllp.com. Washington, DC 20001; 202-662-6000; Fax 202-662- 6291; www.cov.com.

April 2016 49 Office of the General Counsel

Who’s Calling?

by Paula Frederick

“ wanted to see how my appeal is going,” your

client announces as you pick up the phone. “Has Ithe court set a hearing yet?” You update your client on the case, promise to send him a copy of the appellate brief when it is filed, and let him know that you expect the court to set oral argument for the fall. “Keep me posted, and call as soon as you hear something about that oral argument,” your client instructs. “Let me give you my cell number.” You are jotting down the number when it hits you. “Cell number?” you ask, astonished. “You’re in prison! It’s illegal for you to even have a cell phone! How did you get it?” “It cost me a pretty penny,” your client admits, “but it’s easier than you might think. There’s a guy here who takes orders and his girlfriend brings them in when she comes to visit. You got a problem with that?” “Actually, I do,” you respond. Does a lawyer violate the ethics rules when she speaks with a client who is calling from prison using a contraband cell phone? Maybe. Georgia allege that inmates used contraband cellphones It is clearly illegal for an inmate to possess a cell to threaten witnesses, commit credit card fraud and phone, and it would be a felony for a lawyer to “obtain coordinate drug trafficking enterprises on the outside. It for, procure for, or to give to an inmate” a telecom- is not hard to imagine that a lawyer who remains silent munications device (O.C.G.A. § 42-5-18(b)). But what about her prisoner client’s use of a cell phone could be about just taking a call from a client who has obtained accused of “assisting” in the resulting criminal conduct. the phone on his own? So the safest course of action is not to take calls from While the law of other jurisdictions may differ, in a contraband telephone. It seems reasonable to counsel Georgia the answer depends upon whether by doing the client at the earliest opportunity—let him know so the lawyer “knowingly assists a client in criminal that merely possessing the phone is a crime, advise him or fraudulent conduct.” Georgia Rule of Professional to turn it in, and warn him that you and your staff will Conduct 1.2 (d) prohibits a lawyer from counseling not take calls from the phone in the future. a client about how to commit a crime or “suggesting how . . . wrongdoing might be concealed.” (Rule 1.2 Paula Frederick is the general counsel for Comment 10). Opinions vary on whether simply taking the State Bar of Georgia and can be the call amounts to assisting in the client’s crime. reached at [email protected]. While the act of answering the call may not be a crime, lawyers should understand the danger posed by inmates’ use of cell phones. Recent indictments in

50 Georgia Bar Journal STATE BAR OF GEORGIA Member Benefits

HARDEST LAW PRACTICE MANAGEMENT WORKING PROGRAM The State Bar of Georgia provides all of its members with business management SITE ON assistance; technical and general consultations; software advice and training; sample forms; start up THE WEB. resources and solo small firm discussion board and video resources.

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WWW.GABAR.ORG Learn more at www. gabar.org or contact Natalie Kellly at 404-527-8770 or [email protected]

April 2016 51 Lawyer Discipline

Attorney Discipline Summaries (Dec. 10, 2015 through Feb. 12, 2016)

by Connie P. Henry

Disbarments/Voluntary Surrenders gency basis, but without formal retainer agreements Dianne Cook or any writing describing his fees or expenses to his Rocky Face, Ga. clients, and without maintaining adequate records. In Admitted to Bar 1977 addition, Morrey appeared in multiple cases in court On Jan. 19, 2016, the Supreme Court of Georgia as the attorney for a party in a garnishment action, and accepted the petition for voluntary surrender of license although he had strong suspicions that the individual of attorney Dianne Cook (State Bar No. 183600). A cli- he represented was not the actual party to the case, he ent paid Cook $2,232 for representation in a domestic undertook no investigation to dispel his suspicions. relations matter. Cook filed for an uncontested divorce Morrey asserted that opposing counsel brought the for the client, but the parties ended up in media- identity issues to the court’s attention prior to the hear- tion. Cook attended the initial session, but thereafter ings and that no funds were ever released improperly. neglected the case. Cook admitted she suffers from Morrey was on administrative suspension for failure health and personal problems. Cook had no prior disci- to pay Bar dues and failure to meet continuing legal pline, displayed a cooperative attitude in the disciplin- education requirements. He asserted that the lapses ary proceedings and expressed remorse. resulted from his health and personal issues. Morrey had a prior disciplinary history. Donald Carlton Gibson Brunswick, Ga. TaShawna Lacher Griffieth Admitted to Bar 1999 Monroe, Ga. On Feb. 1, 2016, the Supreme Court of Georgia Admitted to Bar 2006 accepted the petition for voluntary surrender of license On Feb. 1, 2016, the Supreme Court of Georgia of attorney Donald Carlton Gibson (State Bar No. accepted the petition for voluntary surrender of license 292819). On Dec. 15, 2015, Gibson pled guilty to bank of attorney TaShawna Lacher Griffieth (State Bar No. fraud in the U.S. District Court for the Southern District 207806). In March 2015, Griffieth pled guilty to first- of Georgia. degree forgery in the Superior Court of Newton County.

Jay Harvey Morrey Stephen B. Taylor Tucker, Ga. Augusta, Ga. Admitted to Bar 2002 Admitted to Bar 1972 On Feb. 1, 2016, the Supreme Court of Georgia On Feb. 8, 2016, the Supreme Court of Georgia accepted the petition for voluntary surrender of license disbarred attorney Stephen B. Taylor (State Bar No. of attorney Jay Harvey Morrey (State Bar No. 523494). 701200). The following facts are deemed admitted Morrey represented various individuals on a contin- by default. Taylor agreed to represent a client in

52 Georgia Bar Journal a criminal sentencing matter and Prior to reinstatement Smith he receive a Public Reprimand. was paid $750 by the client’s fam- Fitch must prove that she has Eddleman represented his secre- ily. Taylor failed to do any work completed all outstanding con- tary’s now-ex-husband in several on the client’s behalf and failed tinuing legal education require- credit card collection cases and to communicate with the client or ments and within six months of did not charge a fee due to the the client’s family. In another case, reinstatement implement the rec- client’s financial circumstances. Taylor agreed to represent a client ommendations of the Law Practice Later, Eddleman insisted on being in a criminal matter and was paid Management Program. paid but could not agree with the $2,650 by the client’s family. Taylor client, so he considered himself failed to do any work on the mat- Public Reprimands discharged. He did not obtain an ter, failed to communicate with Michael Anthony Eddings order allowing withdrawal from the client or the client’s family and Atlanta, Ga. the last case until February 2013. failed to return the fee. Admitted to Bar 2002 Thus, Eddleman was attorney of In aggravation of discipline, On Feb. 1, 2016, the Supreme record in 2012 when he represent- the Investigative Panel found that Court of Georgia accepted the peti- ed his secretary in a divorce in Taylor acted willfully in collecting tion for voluntary discipline of which the parties’ finances were a fee from these clients and aban- Michael Anthony Eddings (State relevant to the divorce action. He doning the legal matters entrusted Bar No. 238751) and ordered that did not obtain written consent to to him, that he acted with a selfish he receive a Public Reprimand. the divorce representation from his motive and that these two matters Eddings was held in contempt secretary or her now ex-husband. taken together show a pattern of of court by the Superior Court of In addition, Eddleman had an inti- client neglect. Taylor was suspend- Muscogee County for communi- mate relationship with his secre- ed in 2013 for failing to respond cating with persons represented tary, now wife, while the divorce to a Notice of Investigation, and by legal counsel without the prior action was pending. In addition, he received an Investigative Panel consent of said counsel. during his original representation reprimand in 2012. In mitigation of discipline, of his former client, there were Eddings asserted that he had no documents that appeared to bear Suspensions selfish or dishonest motive and the client’s signature; however, Nakata S. Smith Fitch engaged in the communications during the disciplinary proceed- Atlanta, Ga. on the eve of trial when an answer ings Eddleman’s secretary stated Admitted to Bar 1998 for a plea recommendation dead- that she had signed the documents On Jan. 19, 2016, the Supreme line was imminent, and only after Court of Georgia accepted the peti- unsuccessful attempts to contact “He who is his own lawyer tion for voluntary discipline of the counsel of the represented has a fool for a client.” Nakata S. Smith Fitch (State Bar No. individuals. He also stated that 262068) for a six-month suspension he had no prior discipline; that with conditions for reinstatement. during this period he was under Warren R. Hinds, P.C. This matter was previously before prolonged stress from his efforts “An Attorney’s Attorney” the Court on Smith Fitch’s petition to clear his name in another dis- for voluntary discipline in 2014, ciplinary case; that he cooperated • Bar Complaints • Malpractice Defense but the Court rejected that petition fully with the disciplinary authori- • Ethics Consultation because she had failed to comply ties; that he submitted letters of with the conditions for reinstatement reference; and that he is remorse- in a previously-imposed suspension ful. In aggravation, the special in 2011, including making payments master noted a pattern of miscon- ordered by a probate court. duct, as Eddings had been held In mitigation, the special master in contempt for the same type of noted the financial and emotional misconduct in a different case the strain caused by the illness and previous year. death of Smith Fitch’s husband, that she was cooperative in the dis- Robert Benjamin Eddleman ciplinary proceedings and that she Carrollton, Ga. was remorseful. Smith Fitch even- Admitted to Bar 2005 tually paid the amounts ordered On Feb. 8, 2016, the Supreme 1303 Macy Drive by the probate court and com- Court of Georgia accepted the peti- Roswell, Georgia 30076 plied with the other requirements tion for voluntary discipline of Call (770) 993-1414 for reinstatement imposed in the Robert Benjamin Eddleman (State www.warrenhindslaw.com Supreme Court’s 2011 opinion. Bar No. 142230) and ordered that

April 2016 53 “And Justice for All” State Bar Campaign for the Georgia Legal Services Program® (GLSP)

On Your 2016 Bar Dues Notice, Give to GLSP and Change Lives!

James is 18 years old and has a severe disability from a progressive disease. He relies on a breathing tube and a feeding tube, which make it impossible for him to communicate. GLSP ‘s legal assistance changed his life. James is monitored constantly so that his breathing tube does not come out or clog. His mother cares for him at home, often monitoring him all night. She also works to support herself and two other children. She received notice that the state planned to reduce the hours of nursing care that James receives through the Medicaid program. She contacted GLSP for help. We took action to keep the services going while we gathered more medical evidence. After months of negotiation, the Medicaid agency nally agreed to maintain the hours of nursing care that James needs, enabling him to stay at home with his family. — Phyllis J. Holmen, GLSP Executive Director

Please complete your Bar Dues Notice with a gift or pledge to GLSP!

Thank you for your generosity and support!

“And Justice for All” State Bar Campaign for the Georgia Legal Services Program® ®

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

Ten (10) GLSP o ces outside metro Atlanta serve 154 of Georgia’s 159 counties. Your gift makes a di erence! “And Justice for All” with her now-ex-husband’s per- Reinstatements State Bar Campaign for the Georgia Legal Services Program® (GLSP) mission, and one of the documents Granted was a release of liability in favor of Eddleman. In mitigation of disci- Hugh O. Nowell pline, Eddleman stated that he had Marietta, Ga. no dishonest or selfish motive, and Admitted to Bar 1979 that his intimate relationship with On Dec. 10, 2015, the Supreme his secretary did not begin until Court of Georgia determined that after her divorce was filed; that attorney Hugh O. Nowell (State he suffered personal problems and Bar No. 547375) had complied with was on prescription pain medica- all of the conditions for reinstate- tion that may have caused him not ment following his suspension, to think clearly; that he cooperated and reinstated him to the practice with the proceedings; and that he of law. JOIN is remorseful. JOIN US! The State Bar offered in aggrava- Clifford E. Hardwick IV On Your 2016 Bar Dues Notice, tion that Eddleman has received McDonough, Ga. a Formal Letter of Admonition; Admitted to Bar 1976 that this matter involved multiple On Dec. 15, 2015, the Supreme Give to GLSP and Change Lives! offenses; that his denial of the affair Court of Georgia determined that extended the proceedings; and the attorney Clifford E. Hardwick IV inherently selfish nature of some of (State Bar No. 325662) had com- @ Eddleman’s conduct. plied with all of the conditions for gabar.org James is 18 years old and has a severe disability from a progressive disease. reinstatement following his sus- He relies on a breathing tube and a feeding tube, which make it impossible for Review Panel pension, and reinstated him to the him to communicate. GLSP ‘s legal assistance changed his life. Reprimand practice of law. Nicholas Pagano Tony Curtis Jones James is monitored constantly so that his breathing tube does not come out or clog. His mother Savannah, Ga. Albany, Ga. cares for him at home, often monitoring him all night. She also works to support herself and Admitted to Bar 1986 Admitted to Bar 1984 two other children. She received notice that the state planned to reduce the hours of nursing On Jan. 19, 2016, the Supreme On Jan. 19, 2016, the Supreme Court of Georgia accepted the Court of Georgia determined that US! care that James receives through the Medicaid program. She contacted GLSP for help. We took petition for voluntary disci- attorney Tony Curtis Jones (State action to keep the services going while we gathered more medical evidence. After months of pline of Nicholas Pagano (State Bar No. 403935) had complied with & negotiation, the Medicaid agency nally agreed to maintain the hours of nursing care that James Bar No. 558935) and ordered all of the conditions for reinstate- needs, enabling him to stay at home with his family. that he receive a Review Panel ment following his suspension, @StateBarofGA Reprimand. In 2008 a client hired and reinstated him to the practice @GeorgiaYLD — Phyllis J. Holmen, GLSP Executive Director Pagano to represent her in a per- of law. sonal injury action. Although Pagano filed suit and did some Interim Suspensions /statebarofgeorgia Please complete your Bar Dues Notice with a gift or pledge to GLSP! initial work on the case, he Under State Bar Disciplinary stopped communicating with his Rule 4-204.3 (d), a lawyer who /GeorgiaYLD Thank you for your generosity and support! client and failed to appear at two receives a Notice of Investigation calendar calls. At the second cal- and fails to file an adequate endar call the judge dismissed the response with the Investigative /statebarofgeorgia case for want of prosecution. Panel may be suspended from the /yld In mitigation, the Court noted practice of law until an adequate that Pagano is remorseful; that he response is filed. Since Dec. 10, did not act with a dishonest or 2015, three lawyers have been sus- /StateBarofGeorgia “And Justice for All” selfish motive; that he has been pended for violating this Rule and State Bar Campaign for the Georgia Legal Services Program® hampered by health problems; none have been reinstated. ® and that he displayed a cooperative attitude. In aggravation, the Connie P. Henry is the Court noted that Pagano received clerk of the State an Investigative Panel repri- Disciplinary Board and mand in 1992, a Formal Letter of can be reached at Admonition in 2002 and that he [email protected]. The Georgia Legal Services Program (GLSP) is a 501(c)(3) nonprofit law firm. Gifts to GLSP are tax-deductible to the fullest extent allowed by law. had no excuse for his conduct. The client story is used with permission. The name does not necessarily represent the actual client.

April 2016 55 Ten (10) GLSP o ces outside metro Atlanta serve 154 of Georgia’s 159 counties. Your gift makes a di erence! Law Practice Management

Law Practice Management Program Launches ”Lunchbox Basics“ by Natalie R. Kelly

anna go to lunch? How about an session will review the proper procedures for setting up and managing a lawyer’s trust account. They will hour of learning something new learn what funds are required to be in the account and how to properly account for all trust transactions. The instead of your standard fare? The use of credit and debit cards with the trust account W has also been an area of confusion for some lawyers, Law Practice Management Program has created a new and this session will help clarify what can and must be done when accepting card payments. Compliance series of programs to take place over the lunch hour— with the Bar rules for specific trust activity will be addressed. Register for this session if you need to learn noon to 1 p.m.—to help lawyers with some basic and more about trust accounting. often cutting-edge practice management and technol- Online Practice Management Practice management systems allow users to keep ogy topics. Staff from the program will conduct the track of client matter files and all of the information related to those files in one place. These powerful sessions on various dates in the upcoming months. database programs have been helping lawyers keep their acts together for years. Today’s cloud comput- The sessions will be free of charge and open to all ing environment has grown ripe for putting this Georgia lawyers and their staff. With a limit of 10 reg- information online. With so many options to choose istrants per session, it is hopeful the attendees will find from when it comes to practice management software the programs brief and meaningful so as to provide service, simply knowing what to look for in products an instant impact on their skills and knowledge of the is important. Attendees in this session will tour mul- many topics being presented. tiple options and learn about the features they need to One general hour of CLE credit will be provided be looking for in any system they may be interested on a self-reporting basis for the training, and all in implementing. Register for this session if you need attendees must pre-register. The registration is lim- to learn more about online practice management soft- ited, and therefore, is first come, first served. Lunch ware solutions. orders may be placed at the time of session registration with the State Bar staff. Read on for a description Building a Website of session topics. To practice law today you must have a web presence, and a basic website is where you start. Attendees at Trust Accounting this session will learn how to build one using free web Lawyers often struggle with the proper set up and development tools. The session will cover key topics for maintenance of trust accounts and sometimes find online marketing campaigns for today’s lawyers includ- themselves in trouble because of it. Attendees in this ing information on the ethical concerns with websites.

56 Georgia Bar Journal You can build a basic website in leaves the session with a comfort- This session is similar to the regu- one hour, so bring your credit card able handle on basic computing. If larly scheduled Fastcase training and leave with a basic firm website. the class is a group of fast learners, sessions, but with a twist. Come Register for this session if you need the session will be expanded to learn the tips and tricks for using to learn more about building your include more advanced topics like Fastcase that you might be missing own website. indexed searching and basic encryp- out on. Register for this session if tion. All sessions will be conducted you need to learn more about using How to Go Paperless on PCs. Fastcase in your practice. Is your office drowning in paper? This session will help attendees cre- Apps for Lawyers Registration ate a plan to help get rid of unnec- Apps are everywhere and it Information essary paper and define workflows really seems like there is an app that eliminate the volume of paper for everything. This session will Registration is free. Once the 10 that comes from practices which feature the latest in useful apps classroom slots are filled, lawyers don’t adhere to paperless princi- for lawyers. Come learn which and staff may opt to be placed on ples. Attendees can learn which tools are available and easy to try the waiting list for the next sched- tools they will need to get rid of out. Also, look to make the busi- uled session. One hour of gen- most (maybe all in some cases) of ness case for having apps that go eral CLE is available via self-report. their paper, and learn about the beyond just the business and pro- Finally, make sure you sign up for proper means of saving the neces- ductivity app categories. Come a lunch offering when you register. sary material for their practices. prepared to both learn and share Contact the Law Practice Register for this session if you need in this session featuring the very Management Program at 404-527- to learn more about going paper- latest in apps for lawyers. Register 8772 for more details on attend- less in your practice. for this session if you need to learn ing a upcoming lunchbox session, more about the apps lawyers can or view upcoming sessions on the Basic Computer Skills use in their practice. State Bar Calendar at www.gabar. Still not sure you know your org. We’ll see you at lunch! way around the computer and basic Online Legal Research applications? Register for this ses- with Fastcase Natalie R. Kelly is the sion if you need to learn more about director of the State how to complete the basics when Fastcase is one of the best ben- Bar of Georgia’s Law using the computer. It features a efits of your State Bar membership. Practice Management basic review of how to navigate Come learn how to effectively con- Program and can be documents, files and folders on the duct research using this invaluable reached at nataliek@ computer. The pace for this session practice tool provided for free to gabar.org. will be slower so that everyone members of the State Bar of Georgia.

April 2016 57 South Georgia Office

South Georgia Lawyer Makes Unexpected Career Shift by Bonne Davis Cella

atrick Millsaps still shakes his head in

disbelief when asked about the course his P career has taken—it reads like a Hollywood story—literally.

The Marietta native received his J.D. from the University of Georgia School of Law and enjoyed a successful career in Atlanta and Marietta as a litigator and business transaction lawyer. In 2004, he and his wife Elizabeth moved to her hometown of Camilla to raise their daughters, Morgan (11) and twins Kendall and Allison (10). Patrick enjoyed the slower pace and the unique challenges and perks of practicing in a small town. In 2011 his firm merged with Hall Booth Smith (HBS) and the family moved to Albany, 25 miles away. On the day after Christmas in 2011, Patrick received a phone call from attorney Randy Evans who was acting as general counsel to then presidential candidate, Newt Gingrich. Evans, a longtime advisor to the Republican Party, invited Patrick to come to the Iowa Caucus as deputy general counsel—a voluntary position. Thinking it was short term, Patrick packed two suits

and flew to Iowa where he worked on ballot access Photos by Chris Cella issues. During his down time, Patrick sat with national Patrick recaps the events that led to his career shift. news correspondents such as Savannah Guthrie and enjoyed “just normal conversations.” Friendly and to Georgia, Patrick attended a strategy meeting with engaging, Patrick soon had a pocketful of business Newt and the campaign staff. When someone made a cards from all the major television networks. He easily suggestion for the next move in the campaign, Patrick related to people and established relationships while accidently blurted out, “That’s the dumbest thing I’ve learning how the relatively new social media outlets ever heard!” were impacting national behaviors. Newt looked up and said, “Who the heck are you? After the loss in Iowa, Patrick was planning on Get on the bus, you are going with me!” Patrick went going home—he really didn’t know Newt well, hav- shopping for more underwear and got on the bus. ing met him just one time. However, before returning After orchestrating Newt’s primary win in South

58 Georgia Bar Journal Carolina, Patrick was promoted to chief of staff. Patrick wrote scripts for the campaign and used his con- tacts in the news media to Newt’s advantage, saving the campaign advertising dollars. Newt suspended his campaign on May 2, 2012, and Patrick returned to his law practice but kept up with the presidential campaign. When he heard that African- American actress Stacey Dash publicly endorsed Mitt Romney and suffered a form of blacklisting in Hollywood, he decided to write her a letter. Patrick told her that if she ever wanted to get more involved in politics to let him know. Surprisingly, Stacey answered his Patrick enjoys living in Southwest Georgia. “It keeps me grounded.” letter which led to a meeting of the two. She decided not to pursue pol- abysmal. As a father of three girls, if you find something you love itics but asked Patrick to become he just didn’t think that was right. to do, you’ll never work a day in her manager. One of the driving forces of his new your life was exactly right.” “I had to Google what a ‘man- company was to develop the next ager’ was,” he said. He promised generation of female filmmakers, Bonne Davis Cella is Stacey that he would accomplish thus the name of the new company, the office three things in 12 months and if he Londonderry. He had read about administrator at the didn’t he would fire himself. He Annie Kopchovsky Londonderry, a State Bar of Georgia’s would 1) get her paid for her opin- 19th century adventurer and jour- South Georgia Office ion; 2) figure out how to get her a nalist who circumnavigated the in Tifton and can be book deal; and 3) get her back into globe (on her bicycle) in order to reached at [email protected]. action. Patrick first orchestrated a prove that women were as capable deal for Stacey to be a contributor as men. on the Fox News Channel to offer “I want to empower my daugh- Earn up to 6 cultural analysis and commentary. ters,” he said. He then reached out to one of the Following through with his CLE credits most successful ghost writers in intentions, Patrick was the execu- America on Twitter and hired her tive producer of the female pro- for authoring legal to work on the book with Stacey duced Sundance Film Festival articles and having and himself. “There Goes My Social favorite: “I’ll See You in My them published. Life” will be released later this Dreams,” staring Blythe Danner, year. And as for the last promise— Rhea Perlman, June Squibb, Mary Submit articles to: Patrick convinced a director to hire Kay Place and Malin Akerman. Timothy Colletti Stacey for an upcoming movie by He is now working with several Georgia Bar Journal sending him a direct message on prominent actresses to form their 104 Marietta St. NW what Patrick calls, “the Twitter.” own production companies. Suite 100 The successes he accomplished Patrick now splits his time Atlanta, GA 30303 for Stacey Dash catapulted Patrick between his offices in Beverly into the talent management busi- Hills and New York but is gener- ness and got him noticed. He seam- ally on the road about one week lessly took his legal and business out of the month. The rest of his skills from one trade to another. work is done on his cell phone In 2015, Patrick left HBS to part- with a Beverly Hills area code and ner with former Hollywood agent his computer from his home in Sheila Wenzel-Ganny to form Southwest Georgia. Contact [email protected] Londonderry Entertainment. “I have more time with my girls Learn more at Patrick noted that the number of and I enjoy every minute of time www. gabar.org women hired to direct movies was that I am working. Whoever said

April 2016 59 Pro Bono

Get Your Pro Bono Ducks in a Row

by Michael Monahan

ro bono service is a law practice manage-

ment issue, not so much for “Big Law” as it P is for the solo or small firm lawyer. I have been participating in many of the continuing legal education seminars of the State Bar of Georgia Transition into Law Practice Program. The Transition into Law Practice Program is a mandatory mentoring program for all newly admitted lawyers in Georgia. My presentations to the newly admitted lawyers extol the benefits of pro bono service, including sub- stantive law and client-interviewing skills development. However, the main point I address to new lawyers is this: To be successful as a new lawyer, you must actively manage your pro bono service. You must think strategically about pro bono. The message to manage your pro bono practice is the same for all lawyers, not just those fresh out of law school. So let’s get your pro bono ducks in a row. Solo and small-firm lawyers, new and experienced alike, must preserve the financial health of their law practice. So many pro bono cases that might otherwise be accepted by small-town lawyers are turned away because solo and small-firm lawyers have limited resources. Lawyers don’t relish turning away pro bono and low bono clients on a regular basis. We are, after all, a service profession. The best solution is to increase support for lawyers from the local legal aid or pro bono program. Every

60 Georgia Bar Journal small-town lawyer ought to be able to say to a potential pro bono client, “I do all my pro bono through legal aid. Go to legal aid, get screened, and if you meet the guidelines, they will send you back to my office.” Adopt this method to manage the pro bono requests. This approach achieves some economies and helps to eliminate many frustrations. You or your paralegal do not have to be the bad guy and say no; instead, Join the your message to the local community is that you indeed provide pro bono services and you have part- Pro Bono All Stars nered with a program to make your service more effective. Using this method, you do not have to spend a large amount of time on client intake because that is Become a done by the legal aid or pro bono program; the local legal aid or pro bono program may be able to resolve the client’s issue without pro bono intervention; and volunteer lawyer! the local legal aid program or pro bono program can provide other support to you as a volunteer lawyer should you ultimately be referred the case. Importantly, you maintain more control over your workload because you set the number and type of pro bono cases you will accept through a managed pro bono program in a calendar year. That connection to legal aid gives you some insula- tion from the large number of pro bono requests you receives on a daily basis, and allows you and your pro bono program to address the most critical legal needs in your community. Law practice pro bono management means you should think strategically about pro bono service. Decide how many cases you can effectively manage and fund—because you do “fund” the case, especially so in a small firm or solo environment. Be specific about the kinds of pro bono cases you would like to www.gabar.org/publicservice/volunteer.cfm handle. Communicate your specific plan to your staff, your clients, the court and the local legal aid or pro for more information bono program. Ask what the local legal aid or pro bono program can do for you. For example, many offer free and to sign up! or reduced-cost CLE, CLE vouchers and professional liability insurance for the pro bono cases as well as other incentives. I invite lawyers in Georgia to look at their business plan for 2016 to make sure that you have included pro bono in your planning. Calculate how many hours you can afford to provide free legal help to the poor on issues or case types that interest you and drive you. Communicate your pro bono plan with your local legal aid program. I am available to answer questions you might have about pro bono in Georgia. Contact me at [email protected].

Michael Monahan is the director of the Questions? Email Mike Monahan Pro Bono Resource Center for the State [email protected]. Bar of Georgia and can be reached at [email protected].

April 2016 61 Section News

Wanna Join a Section but Don’t Know How?

by Derrick W. Stanley

n any given day during the year, I get n Enter your credit card information and click the brown “Submit Order” button at the bottom of the a call or email asking: “How do I join page. This will generate a confirmation and place you in the section (see fig. 5). O a Section?” The process is simple; how- n Enjoy your section membership. ever, there are a couple of things you will need to know This is the time of the year when the membership department begins preparing the dues statements to up front. The first is the website for the Bar, www. be mailed to members. You should receive your statement the first part of May. The printed statement will gabar.org. The second is your username and password, be pre-filled with any sections you may be currently a member of to make it easier for sections renewal. You which you will use to log in to the members’ only sec- can add or delete sections by indicating your choice on the statement. The important thing to remember is tion of the website. that even though the sections are pre-selected on the statement, they have not been added into the total at Hint: If you have not changed your information, the the bottom of the page. You will need to include the default username is your six-digit Bar number and the amount of section dues on Line C in the Summary Box. password is your last name (all lowercase) and your This will ensure your section membership is renewed. four digit birth year (e.g. smith1999). This information It is important to double-check your math. If there is can be changed after you log in. If you forgot your a variance in the amount, it may delay your sections password, you can reset it on the website. renewal. If you join a new section when you renew Once you have logged in to your account at www. your dues, your section membership will start on July gabar.org, only a few steps remain before you are 1, the first day of the Bar year. member of the section(s) of your choice. If you are in a medium to large firm and your dues are paid through an accounting department, please n On the left side of the webpage, click the button make sure they submit your section dues as well as labeled “Section Membership” (see fig. 1). your Bar dues. Many times, people are removed from m A list will show your current section and sections due to this reason. committee memberships (see fig. 2). Hopefully these tips will assist you in joining a sec- n Click on the “Join Sections” link to see a list of the tion. If you have issues, please feel free to send an email sections and dues amount (see fig. 2). to [email protected]. m Sections you already belong to will have a grayed out checkmark (see fig. 3). Derrick W. Stanley is the section liaison n Select the sections that you want to join by clicking for the State Bar of Georgia and can be on the box next to the name (see fig. 3). reached at [email protected]. n Once completed, click the brown “Add to Cart” button at the bottom of the page (see fig. 3). n You will be taken to a review page (see fig. 4).

62 Georgia Bar Journal 1 2

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April 2016 63 Member Benefits

Fastcase: Creative Searching in Case Law

by Sheila Baldwin

ince 2009, the State Bar of Georgia has “citation lookup” as the search type. This will bring 129 cases with Randstad as a party. Use the jurisdiction fil- provided Fastcase as a member benefit. ter on the top left side of the screen to show each court that contains a case with Randstad as a party; narrow This nationwide legal research system has to 11th Circuit to find three cases (see fig. 1). S Case law searching is useful when looking for become a valuable tool for attorneys in their research. an expert witness or investigating the opposition’s expert witness. Find out what cases the expert witness Case law and statutes are most frequently searched testified in and see if it has been challenged. Use the expert’s name as the keyword and possibly the area of by attorneys for relevant cases and laws that provide expertise in the search engine and select a jurisdiction. If the name is common you may want to enter other precedent. In this article we’ll look at creative ways qualifying terms. Perhaps a small firm is considering hiring a support to get other useful information within case law and person in a “job-sharing” arrangement with another firm. They might search case law to investigate poten- some of the other libraries in Fastcase. Cases are nar- tial conflicts in using a non-traditional hiring process. In the advanced case law search field, enter the query ratives with sometimes valuable facts about people, job / 3 share*, and filter the jurisdiction to Fed. 11th Cir., M.D. Ga., N.D. Ga., S.D. Ga., GA to find 36 results. Use companies, products and situations other than legal the jurisdiction filter at the top left corner to view only Georgia and find seven cases (see fig. 2). precedent. Fastcase’s electronic full-text search engine To learn about what types of cases certain judges have heard and how they ruled, enter the last name can be helpful in finding information when conducting in the search box and select Citation Lookup for type. Searching in Georgia with the name Nahmias by background and fact-finding research. Citation Lookup, you will find 551 cases; add the word murder and find 245 cases. This is a case that might In preforming due diligence, consider searching be interesting to view within the interactive timeline a company name, products and principal parties by (see fig. 3). This approach can be used to learn about name in case law. This can be useful when hiring a attorneys or parties. company or person to perform a service or if you are You may want to know how successful the opposing considering entering into partnerships or business counsel is or if a particular party is litigious. Using a ventures. Using the example Randstad, enter the word family law attorney’s name for a search query in Georgia into the search box using “all jurisdictions” and choose while choosing Keyword Boolean or Citation Lookup

64 Georgia Bar Journal will yield five cases. If you conduct the same search but choose Natural 1 Language you will find 2,012 cases. This illustrates the lack of precision with that type of search. Natural Language brings no relevance to the terms and brings too many results to be helpful other than giving general information on the topic of law or terminology. When searching names of businesses or people in cases you will most likely need to visit the Secretary of State’s website first and do a business or corporate search to find precise information about a company. Enter the name of a business to find the full name and address of regis- 2 tered parties, or enter a name to find out what companies with which the person may be associated. Georgia law requires business corporations to submit the Articles of Incorporation, including the name of the corporation, the number of shares the corporation is authorized to issue, the street address and county of the corporation’s registered office, the name of the registered agent at that office, the name and address of each incorporator and the mailing address of the initial principal office of the corporation. These ideas may not be new, but they may help users consider other 3 ways they can utilize Fastcase’s innovative design to gain information. If you are not getting the maximum advantage from this member benefit, consider signing up for a Fastcase webinar or live training. Visit the calendar on the top right side of the State Bar’s website for information about both options; CLE credit is available for either. Please feel free to contact me at [email protected] or 404- 526-8618 with any questions.

Sheila Baldwin is the Fastcase training classes are offered three times a month at the member benefits State Bar of Georgia in Atlanta for Bar members and their staff. coordinator of the State Bar of Georgia Training is available at other locations and in various formats and can be reached at and will be listed on the calendar at www.gabar.org. Please call [email protected]. 404-526-8618 to request on site classes for local and specialty bar associations.

April 2016 65 Writing Matters The Power of Paragraphs

by Karen J. Sneddon and David Hricik

hen one of us was in high school,

a good friend complained that her W grade was low because, among other things, the teacher said that having one long paragraph as a three-page essay was not good writing. “I thought,” the friend said, “paragraphs were optional.”

They most assuredly are not. This installment of “Writing Matters” reminds you of the function of paragraphs, highlights the characteristics of a well-written paragraph, and shares some strategies to help you craft powerful paragraphs. Function of Paragraphs Paragraphs are visually segmented units of written text. Yet that intuitive definition doesn’t capture the power of paragraphs to enhance communication. Besides the known effect that having white space cre- ates for comprehension, this segmentation aids both the job of the writer and the reader. Paragraphs help the writer to logically group thoughts to develop sub-points relevant to the larger Keeping these functions in mind should help you purpose of the writing and to break those points down to use and develop paragraphs that advance the into visually appealing and logically driven segments goals of the communication. that enhance comprehension of the substance of the text. To that end, paragraphs afford the writer the Characteristics of Well-Written opportunity to present the substance in a way that Paragraphs ensures the reader more willingly engages with the substance, comprehends it without undue difficulty Paragraphs vary. But all well-written paragraphs and retains relevant information. If the writer does share two characteristics. Those characteristics are his or her job, the reader perceives visually manage- unity and coherence. able segments that efficiently and effectively move Paragraph unity refers to a paragraph’s content. the reader from the beginning to the end of a writing, Every paragraph must have a focus, or subject, and both literally and, more importantly, with respect to its every sentence in that paragraph needs to relate to that substance. Paragraphs should move the reader from subject. Cohesion relates to how the sentences within a one logical point to the next. Writers should also avoid paragraph relate to each other and how paragraphs are overdeveloped paragraphs that undermine communi- connected to each other. cation by bogging the reader down—again both visu- A paragraph’s focus is typically stated in its first sen- ally and with respect to the substance. tence, the “thesis sentence.” (The first sentence is some-

66 Georgia Bar Journal times called a “topic sentence.” We both goals, they should be revised Look at the Length of Each prefer “thesis” because that label until they do. Paragraph is more descriptive, we believe, Count the number of sentences of what the first sentence should Dovetail Each Paragraph in each of your paragraphs. Length accomplish—not just give the topic, Just as a jumble of sentences should be dictated foremost by the but explain the point of the para- does not make a well-written para- concept of unity. As a general rule, graph.) A thesis sentence defines graph, a string of paragraphs don’t however, most paragraphs should what content should and must be form a well-written text. To ensure have between four and eight sen- presented in the paragraph. The paragraphs flow, review the con- tences. Even so, a well-developed thesis sentence sets out the bound- nections between paragraphs. The 12 sentence paragraph may visu- aries of the paragraph’s unity. A connections between paragraphs ally call the reader’s attention to writer uses details and examples to are commonly called dovetails. (A its importance and also allow deep illustrate the thesis sentence. Unity reference to the woodworking term development of a key point and requires the sentences within the of joining.) A weak dovetail will analysis of critical nuances. paragraph relate to and support cause fractures, both in furniture the thesis sentence. For example, and in legal writing. A Well-Placed One-Sentence a paragraph with a thesis sentence To check the strength of your Paragraph May Underscore defining the meaning of “valuable dovetails, consider how the last a Key Point consideration” should not include sentence of a paragraph leads the Above all, varying and balanc- text relating to the reasonableness reader to the first sentence of the ing the length of the paragraphs of a contract’s terms. Thus, a para- next paragraph. In reviewing these is critical. Too many short paragraph must have a sense of unity. sections, the connection should be graphs may lead the writer to pro- But a jumble of even related clear. A key phrase may be repeat- vide only a cursory, superficial details and examples can quickly ed in both sentences. Or, a transi- analysis. Too many lengthy para- overwhelm the reader: unity and tional word or phrase in the first graphs can bog the reader down cohesiveness are required. Even if sentence of one paragraph may with unnecessary details or com- each sentence provides a detail or refer a point in the last sentence of bine ideas that deserve separate example related to the thesis sen- the prior paragraph. paragraphs. Varying paragraph tence, the writer must order those length also avoids a monotonous sentences in logical manner, and Examine the Amount looking text. link the sentences within the para- of White Space graph to produce a cohesive para- Look at the white space on each Conclusion graph. This can be done by using page. One inch margins create a Paragraphs are far more than transitions, introductory phrases, visual frame of white space for a double space and an indent. repetition of key terms and use of each page of text, but the reader Paragraphs provide structure and parallel constructions. likely needs a lot more. That’s the convey meaning to the reader. visual appeal of paragraph breaks. Harness the power of paragraphs Drafting Powerful The white space gives the reader’s to produce a more effective text. Paragraphs eye a fleeting break from the text and the reader’s mind a moment Karen J. Sneddon is a These four strategies will help to process meaning. professor of law at you draft powerful paragraphs. To create sufficient visual and Mercer University mental space, examine the amount School of Law. Review Each Thesis Sentence of white space. You should avoid To check the effectiveness of page-long paragraphs but instead each thesis sentence, review the have at least—at least—one para- David Hricik is a text just reading the thesis sentence graph break per page. Although for each paragraph. Highlight less often a problem with legal professor at Mercer each thesis sentence, and read writing—because the text is gener- University School of only those highlighted sentenc- ally dense and so space is a helpful Law who has written es in order, alone. Each sentence tool—too many paragraph breaks several books and should be clear and achieve its can also be a problem. Consider more than a dozen purpose and then each sentence carefully any page that has more articles. The Legal Writing viewed within the whole docu- than five paragraph breaks. Is the Program at Mercer continues to ment should demonstrate a logical white space a distraction because it be recognized as one of the movement from start to finish. If gives the reader too many oppor- nation’s top legal writing the thesis sentences individually tunities to visually and mentally programs. and collectively do not achieve disengage from the text?

April 2016 67 Professionalism Page

Outstanding Community Servants Honored: 17th Annual Justice Robert Benham Awards for Community Service

by Avarita L. Hanson

t was a typical cold and rainy February evening

in Georgia, but that did not deter the more than I 200 individuals who gathered at the Bar Center on Feb. 23 to support the 12 Georgia lawyers who comprised the 2016 class of recipients of the Justice Robert

Benham Awards for Community Service. One might say that each of the lawyers and judges honored that evening brought sunshine to those whose lives have been too long without.

Supreme Court of Georgia Chief Justice Hugh P. Thompson lead off the event stating that Robert Benham is the poster child for this service award, as he has “served wisely in the public service of his home, in the public service of his state, in the public service of his country and the public service of his profession. I don’t think you’d find a better example of someone to emulate than Bob Benham.” State Bar President Robert J. “Bob” Kauffman added, “There is no better way to get the word out to the citizens of the state of Georgia about what lawyers are all about and Photos by Don Morgan Photography Chief Justice Hugh P. Thompson welcomes the attendees and the good that lawyers do than by community service.” honorees to the program. YLD President John R. B. “Jack” Long said that the

68 Georgia Bar Journal honorees provide “inspiration to the YLD and are certainly folks that we as young lawyers want to emulate.” WXIA-TV Business Editor and Help Desk Manager William J. “Bill” Liss introduced Justice Benham with an interview where Benham provided colorful, genuine, thought-provoking and inspiring stories from his life experi- ences showing his commitment to and legacy of service. Avarita L. Hanson, executive director of the Chief Justice’s Commission on Professionalism, served as emcee. After each honoree was introduced, the audience was treated to a short (Left to right) Damon E. Elmore, Edward J. “Jack” Hardin, Justice Robert Benham and Camille video summarizing their service Hope. before the award was presented. Honorees selected are members in good standing with the State Bar of Georgia, have a record of outstanding community service and continuous service over a period of time to one or more causes, organizations or activities. Judges and lawyers meet the criteria if they have combined a professional career with service to their communities through voluntary participation in community organizations, government-sponsored activities, or humanitar- ian work outside of their profes- (Front row, left to right) Juanita Powell Baranco, Chief Justice Hugh P. Thompson, Justice Robert sional practice or official duties. Benham, Avarita L. Hanson and Edward J. “Jack” Hardin. (Middle row, left to right) Thua G. Contributions may be made in Barlay, Harold E. Franklin Jr., Thomas David Lyles, Damon E. Elmore and Michael L. Thurmond. any field, including but not lim- (Back row, left to right) Presiding Judge John J. Ellington, Hon. A.J. “Buddy” Welch, Camille ited to: social service, education, Hope, T. Mills Fleming and Hon. Dax E. Lopez. faith-based efforts, sports, recre- ation, the arts, public service and youth activities. The Lifetime Achievement Awards were presented to: Juanita Powell Baranco, attorney, executive vice president and chief operating officer, Mercedes Benz of Buckhead, Atlanta; and Edward J. “Jack” Harding, founding partner, Rogers & Hardin LLP, Atlanta. The Community Service Awards were presented to: Thua G. Barlay, managing attorney, Barlay Law Group, LLC, Conyers; Hon. John J. Ellington, presiding judge, Court of Appeals of Georgia, Soperton; Damon E. Elmore, part- (Left to right) Chief Justice Hugh P. Thompson, Presiding Judge John. J. Ellingtion, Justice Robert ner, Nowell Sparks LLC, Lithia Benham and Avarita L. Hanson.

April 2016 69 Springs; T. Mills Fleming, partner, Elizabeth L. Fite; Laverne Lewis HunterMcLean, Savannah; Harold Gaskins; Michael D. Hobbs Jr.; W. E. Franklin Jr., partner, King & Seaborn Jones; C. Joy Lampley- Spalding LLP, Atlanta; Camille Fortson; Hon. Chung Hun Lee; Hope, Chapter 13 Trustee, U.S. William J. “Bill” Liss; and Brenda Bankruptcy Court, M.D. of GA, Carol Youmas. Macon; Hon. Dax E. Lopez, judge, Why not start thinking about a State Court of DeKalb County, colleague or two to nominate for Decatur; Thomas David Lyles, next year’s award? While law- senior assistant district attorney, yers who serve are not doing Paulding Judicial Circuit, Dallas; so to get recognized, receipt of Michael L. Thurmond, attorney, the Justice Benham Award for Juanita Powell Baranco Butler Wooten Cheeley & Peak Community Service is always a DeKalb County Education Task Force and Georgia LLP, Stone Mountain; and Hon. highlight of their careers. Anyone Board of Regents, past chair; Cities in Schools, Georgia State Board of Education, Scottsdale A.J. “Buddy” Welch, chief judge, can submit a nomination. In the Child Development Center, Project Impact DeKalb Henry County Juvenile Court, fall of 2016, look for the Call for County, past board member; Clark Atlanta senior manager, Smith Welch Nominations for the 18th annual University Board of Trustees, chair; Southern Webb & White LLC. Justice Benham Awards in the Company, Woodruff Arts Center, Buckhead Coalition and Commerce Club, board member. Georgia Bar Journal, on the State Thank You Bar of Georgia website, or con- This event was made possible tact Nneka Harris-Daniel at the by the assistance of so many. Chief Justice’s Commission on We’d like to thank the YLD mem- Professionalism at nneka@cjcpga. bers and their friends who served org or 404-225-5040. as volunteer hosts for the event: The Justice Benham Awards for Shiriki L. Cavitt, Kasey C. Chow, Community Service were created Miguel A. Dominguez, Waverley to meet four objectives: 1) To rec- A. Eubanks, Tiffany A. Roman, ognize that volunteerism remains Erica T. Taylor and Beza Tadessa. strong among Georgia’s lawyers; Also a big thank you goes out to 2) To encourage all lawyers to the Bar Conference Center staff, become involved in serving their Joyce Jarvis and Mark Brayfield, communities; 3) To improve the T. Mills Fleming who were so helpful in providing quality of life of lawyers through Bethesda Academy, former board member and past chair; Lucas Theatre for the Arts, former board assistance. We could not achieve satisfaction they receive from member and president; Telfair Museum, former such an excellent presentation helping others; and 4) To raise board member and past chair; Savannah Music without our technicians and the public image of lawyers. All Festival, Rape Crisis Center, Memorial Health caterers, and extend our appre- of the ingredients of the Benham University Medical Center Foundation and CASA, past board member; Savannah Country Day School ciation to: Vince Bailey, videog- Awards Program—the court and and Jewish Educational Alliance, fundraising chair. rapher, Vince Bailey Productions, bar leaders, selection commit- Inc.; Don Morgan, photographer, tee members, staff and volun- Don Morgan Photography; Eric teers—were well-served at this Thomas, musician; Affairs to year’s presentation program. So Remember, event caterer. Finally, I leave you with this thought: the excellent service provided by Ultimately, what counts is not the staff of the Chief Justice’s what we do for a living; it’s what Commission on Professionalism: we do for the living. Terie Latala, assistant director; and Nneka Harris-Daniel, admin- Avarita L. Hanson, istrative assistant. Atlanta attorney, has Each year members of the selec- served as the executive tion committee for the Justice director of the Chief Benham Community Service Hon. Dax E. Lopez Justice’s Commission Awards convene to review policy, Georgia Hispanic Bar Association, past president; on Professionalism Caminar Latino, CEPTA and GALEO, board; Emory nominations and select the recipi- since May of 2006. She can be Board of Visitors and Vanderbilt University Law ents. Many thanks to the com- School National Council, past board member; Anti- mittee for honoring their com- reached at professionalism@ Defamation League Glass Leadership Institute, mitment to serve: Janet C. Watts, cjcpga.org or 404-225-5040. alumnus; Athena's Warehouse and the Hispanic Organization Promoting Education (HoPe), chair; Mawuli M. Malcolm Davis; speaker; frequent guest reader at DeKalb County elementary schools. 70 Georgia Bar Journal Thua G. Barlay Hon. John J. Ellington Damon E. Elmore Board of Governors of Conyers-Rockdale Chamber Vidalia Rotary Club, Soperton Lion’s Club and Young Lawyers Division, past president; Georgia of Commerce, past chair; Rotary Club of Conyers, Treutlen County Sportman’s Club, past president; Legal Services Program, past chair; #BikeGACounties president; Children’s Museum of Atlanta, Conyers Four Rivers Ducks Unlimited, past chairman; fundraiser; State Bar of Georgia Board of Governors, Rockdale Economic Development Council and Swainsboro Technical College, former director; member; Willie Dean Ministries Community Center; Family Promise of New Rock, Inc., board member; Colony Bank of Truetlen County and ABAC Most Blessed Sacrament Catholic Church in Atlanta Leadership Rockdale, State Bar YLD Leadership Foundation, director; 2001 Class of Leadership Food Pantry Ministry; initiated #CyclingForGood to Academy, ARC’s Regional Leadership Institute and Georgia alumnus; Atlanta Lawyer's Club, member; feed and assist homeless Atlantans; Lawyers for Leadership Georgia alumnus. Lawyers Foundation of Georgia, fellow. Equal Justice, board member.

Harold E. Franklin Jr. Edward. J “Jack” Hardin Camille Hope Atlanta Bar Association, president; Gate City Gateway, LLC, co-founder and current chair; Community Foundation of Central Georgia, Intown Bar Association, past president; established Georgia Works!, founder and supporter; Regional Macon, Macon Heritage Foundation, Middle the Justice Robert Benham Law Camp pipeline Commission on Homelessness, co chair; Georgia Georgia Food Bank and Miller-Lanier Central program; Lawyers’ Committee for Civil Rights Legal Services Program, president; Board of Foundation Fund, board member; Georgia Legal Under Law, executive board member; Election Directors of the United Way of Metropolitan Services Program, League of Women Voters, Protection, regional vice chair and spokesman; Atlanta, past chair; Governor’s Education Reform Career Women’s Network, Macon Heritage in 2015, established the Equal Justice in Law Study Commission; Board of Visitors of Grady Foundation, former board member; Central High Enforcement Initiative. Hospital, member. School Mock Trial coach.

Thomas David Lyles Michael L. Thurmond Hon. A.J. “Buddy” Welch Teaches courtroom demeanor and report writing to Former Georgia state legislator from Clarke Council of Juvenile Court Judges, past president; law enforcement officers in Paulding and Forsyth County; Georgia Division of Family and Children’s Board of Trustees for Gordon College, member; County, Hiram and Atlanta; Paulding County Boys Services, former director; three-term Georgia State Bar of Georgia Board of Governors, former & Girls Club, Public Safety Appreciation, Fellowship Labor Commissioner and superintendent of member; Board of Henry County Chamber of of Christian Athletes and Family Alliance, board DeKalb County School System; Georgia Historical Commerce, former chair; active with Cubihatcha member; Paulding County Chamber of Commerce Society, Board of Curators; lecturer at UGA’s Carl Outdoor Learning Center; volunteer reader to Leadership Program, member. Vinson Institute of Government. Henry County public school students.

*Partial list of honoree accomplishments. In Memoriam

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

Walter H. Bolling Jr. Kevin Blair Garrison William Kevin Kincheloe Ringgold, Ga. Athens, Ga. Norcross, Ga. University of Tennessee College University of Mississippi School Emory University School of Law of Law (1975) of Law (2009) (1990) Admitted 1976 Admitted 2009 Admitted 1990 Died August 2015 Died February 2016 Died February 2016

Mary Jane Cardwell Claudia Edwards Gordon Rhett Herschel Laurens Waycross, Ga. Alexandria, Va. Atlanta, Ga. Mercer University Walter F. Mercer University Walter F. Harvard Law School (2001) George School of Law (1987) George School of Law (1982) Admitted 2002 Admitted 1987 Admitted 1982 Died February 2016 Died January 2016 Died February 2016 Nancy Jayne Malcom Harry L. Cashin Jr. Benjamin Gratz Jr. Monroe, Ga. Atlanta, Ga. Saint Augustine, Fla. Atlanta’s John Marshall Law University of Georgia School of Woodrow Wilson College of Law School (1993) Law (1959) (1976) Admitted 1994 Admitted 1959 Admitted 1976 Died November 2015 Died December 2015 Died February 2016 Walter C. McMillan Jr. Charles E. Clark Kenneth M. Henson Sandersville, Ga. Marietta, Ga. Sea Island, Ga. Woodrow Wilson College of Law Mercer University Walter F. University of Georgia School of (1950) George School of Law (1972) Law (1947) Admitted 1951 Admitted 1973 Admitted 1947 Died January 2016 Died January 2016 Died February 2016 G. Robert Oliver Charles A. Evans J. Joseph Kennedy Forest Park, Ga. Marietta, Ga. Duluth, Ga. Emory University School of Law Emory University School of Law Emory University School of Law (1959) (1967) (1974) Admitted 1959 Admitted 1966 Admitted 1975 Died February 2016 Died November 2015 Died January 2016 Rudolph N. Patterson Joel M. Feldman Kenneth Kilpatrick Macon, Ga. Roswell, Ga. Suches, Ga. Mercer University Walter F. Emory University School of Law University of Georgia School of George School of Law (1963) (1964) Law (1956) Admitted 1962 Admitted 1963 Admitted 1956 Died February 2016 Died February 2016 Died January 2016

72 Georgia Bar Journal John M. Strain Harry L. Cashin Jr. in recognition of his extensive ser- Rome, Ga. passed away December vice and loyalty to his profession. University of Georgia School of 2015. Cashin was born Cashin was a member of the Law (1974) and raised in Augusta, State Bar of Georgia for more Admitted 1974 Ga., and graduated than 50 years and served as chair- Died December 2015 with high honors from man of several of its committees Boys’ Catholic High School. and the Senior Lawyers Section. Harold A. Sturdivant He attended the University of He received the State Bar’s Griffin, Ga. Georgia, receiving his B.B.A. in Distinguished Service Award and Woodrow Wilson College of Law 1955 and his J.D. in 1959. Between the Tradition of Excellence Award (1978) college and law school, Cashin from the General Practice & Trial Admitted 1978 served on active duty in the U.S. Law Section. He was a member Died February 2016 Navy as a courier officer in Taipei, of the Georgia Bar Foundation, Taiwan, as well as a communica- and a member and chairman Daniel A. Summer tions officer on a destroyer escort of the Judicial Qualifications Gainesville, Ga. in the North Atlantic. He was Commission. Cashin was an emer- Emory University School of Law admitted to the Bar in 1959 and itus member of the International (1985) became a successful and highly Academy of Trial Lawyers and the Admitted 1985 respected trial lawyer. International Society of Barristers. Died January 2016 Cashin served as president of He was also a member and presi- the Lawyers Club of Atlanta (1972), dent of the Georgia Trial Lawyers Albert B. Wallace the Atlanta Bar Association (1975), Association (1979). Jonesboro, Ga. the Old Warhorse Lawyers Club University of Georgia School of (1988), the Advocates Club (1997) Law (1950) and the Atlanta Bar Foundation. Admitted 1950 He received the Atlanta Bar’s pres- Died February 2016 tigious Leadership Award in 1995

Rudolph N. Patterson Patterson was also chair of the General Practice of Macon, 1999-2000 & Trial Law Section (1985-87), president of the president of the State Bar National Organization of Social Security Claimants’ of Georgia, died Feb. 27, Representatives (1981-83), chair of the Benefits 2016. He was 77. Committee of the Administrative Law Section of the American Bar Association, chair of the State Patterson earned his law Bar General Counsel’s Office Overview Committee, degree from the Walter a trustee and Fellow of the Georgia Bar Foundation F. George School of Law and a trustee of the Institute of Continuing Legal at Mercer University Education in Georgia. in 1963, the same year he joined the Macon A native of Poulan, Ga., Patterson is survived by firm now known as his wife, Margaret M. Patterson of Macon; sons, Rudolph N. Patterson Westmoreland, Patterson, James E. “Jay” Patterson and his wife Pam of 1939-2016 Moseley & Hinson LLP. He Forsyth, Rudolph N. “Pat” Patterson and his wife represented numerous Donna of Milledgeville; grandchildren, John Eliotte clients in the areas of Social Security disability law, Patterson, Kathryn Elizabeth Patterson, James Andrew personal injury and workers’ compensation law and in Patterson, Isabella Jayne Patterson, all of Forsyth, 1995 was presented with the Tradition of Excellence Maria Blair Weaver and her husband Brandon of Award by the General Practice & Trial Law Section of Milledgeville; two great-grandchildren; a brother, the State Bar of Georgia. Richard Patterson, and his wife Fonda of Augusta; sister, Gail Patterson Lucich of Cocolalla, Idaho; and A longtime leader in the legal profession, Patterson several nieces and nephews. served as president of the Macon Bar Association in 1967 and as a Georgia delegate to the American Bar Memorial contributions may be made to the Alzheimer’s Association from 2000 through 2014, in addition to his Association, 886 Mulberry St., Macon, GA 31201; service as the 37th president of the State Bar of Georgia. or www.alz.org.

April 2016 73 CLE Calendar

April-July APR 12 ICLE MAY 3 ICLE Webinar: Child Support Worksheets Webinar: Cyber Liability 1 CLE 1 CLE

APR 14 ICLE MAY 5 ICLE Construction Law for the General Entertainment Law Basics Boot Camp Practitioner Atlanta, Ga. Atlanta, Savannah and Tifton, Ga. (Available via web stream) See www.iclega.org for location See www.iclega.org for location 6 CLE 3 CLE

APR 22 ICLE MAY 6 ICLE Aviation Law 7th Annual Dispute Resolution Atlanta, Ga. for Trial and Non-Trial Lawyers See www.iclega.org for location Augusta, Ga. 6 CLE See www.iclega.org for location 6 CLE APR 22 ICLE Solo Small Firm Spring Seminar MAY 10 ICLE Atlanta, Savannah and Tifton, Ga. May Group Mentoring See www.iclega.org for location Atlanta, Ga. 6 CLE See www.iclega.org for location No CLE APR 26 ICLE Webinar: Winding Down a Practice MAY 10 ICLE 1 CLE Webinar: Opening Statements 1 CLE APR 28 ICLE Building Professional Presence MAY 12-14 ICLE Atlanta, Ga. 38th Annual Real Property Law Institute See www.iclega.org for location Amelia Island, Fla. 6 CLE See www.iclega.org for location 12 CLE APR 29 ICLE Animal Law Atlanta, Ga. MAY 13 ICLE See www.iclega.org for location Georgia DUI Update 6 CLE Atlanta, Ga. See www.iclega.org for location APR 29 ICLE 6 CLE Fulton County Family Division: Changes in the Court! MAY 13 ICLE Atlanta, Ga. Atlanta Public Schools Case See www.iclega.org for location Atlanta, Ga. 6 CLE See www.iclega.org for location 3 CLE

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

74 Georgia Bar Journal CLE Calendar

MAY 19-21 ICLE JUL 12 ICLE 34th Annual Family Law Institute Webinar: Georgia’s Hottest Evidentiary Jekyll Island, Ga. Issues See www.iclega.org for location 1 CLE 14 CLE JUL 14-16 ICLE JUN 2-3 ICLE Fiduciary Law Institute Chapter 12 Bankruptcy Institute St. Simons Island, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 12 CLE 10 CLE JUL 15-16 ICLE JUN 7 ICLE Solo Small Firm Institute Webinar: Tax Sale Atlanta, Ga. 1 CLE See www.iclega.org for location 12 CLE JUN 14 ICLE Webinar: Trial Practice JUL 26 ICLE 1 CLE Webinar: Damages 1 CLE JUN 23-26 ICLE Gary Christy Memorial Georgia Trial Skills JUL 29-30 ICLE Athens, Ga. Environmental Law Section Summer See www.iclega.org for location Seminar 24 CLE St. Simons Island, Ga. See www.iclega.org for location JUN 24 ICLE 8 CLE Powerful Witness Preparation Atlanta, Ga. See www.iclega.org for location 6 CLE Memorial Gifts Memorial Gifts are a meaningful way to honor whose memory they are made. The Foundation a loved one. The Georgia Bar Foundation will notify the family of the deceased of the gift furnishes the Georgia Bar Journal with memorials and the name of the donor. Contributions are to honor deceased members of the State Bar of tax deductible. Unless otherwise directed by Georgia. Memorial Contributions may be sent the donor, In Memoriam Contributions will be to the Georgia Bar Foundation, 104 Marietta St. used for Fellows programs of the Georgia Bar NW, Suite 610, Atlanta, GA 30303, stating in Foundation.

April 2016 75 Notices

First Publication of Proposed Formal Advisory Opinion No. 15-R1

Pursuant to Rule 4-403 (c) of the Rules and Advisory Opinion Board by May 31, 2016, in order for Regulations of the State Bar of Georgia, the Formal the comment to be considered by the Board. Any com- Advisory Opinion Board has made a preliminary ment to a proposed opinion should make reference to determination that the following proposed opinion the request number of the proposed opinion. Any com- should be issued. State Bar members are invited to file ment submitted to the Board pursuant to Rule 4-403 (c) comments to this proposed opinion with the Formal is for the Board’s internal use in assessing proposed Advisory Opinion Board at the following address: opinions and shall not be released unless the comment has been submitted to the Supreme Court of Georgia State Bar of Georgia in compliance with Bar Rule 4-403 (d). After consid- 104 Marietta St. NW eration of comments, the Formal Advisory Opinion Suite 100 Board will make a final determination of whether Atlanta, Georgia 30303 the opinion should be issued. If the Formal Advisory Attention: John J. Shiptenko Opinion Board determines that an opinion should be issued, final drafts of the opinion will be published, An original and one (1) copy of any comment to and the opinion will be filed with the Supreme Court the proposed opinion must be filed with the Formal of Georgia. Proposed Formal Advisory Opinion No. 15-R1

Question Presented: state or imply that a lawyer “practice[s] in a partnership or other organization only when that is the fact.” May a sole practitioner1 use a firm name that includes “group,” “firm,” “& Associates”? In applying these rules to the question presented, the Board is mindful that lawyer advertising is commercial Summary Answer: speech that is entitled to some protection by the First Amendment to the United States Constitution. Bates v. A sole practitioner may not use a firm name that State Bar of Ariz., 433 U.S. 350 (1977); In re Robbins, 266 includes “group” or “& Associates” because both terms Ga. 681 (1996) (per curiam). Commercial speech is not would incorrectly imply that the sole practitioner prac- entitled to absolute protection, and false, fraudulent, tices with other lawyers. However, a sole practitioner deceptive, or misleading commercial speech may be may use a firm name that includes “firm.” freely regulated or even prohibited entirely. Florida Bar v. Went For It, Inc., 515 U.S. 618, 623-24 (1995); Zauderer Opinion: v. Office of Disciplinary Counsel of Sup. Ct. of Ohio, 471 U.S. 626, 638 (1985); In re Robbins, 266 Ga. at 683. Thus, The question presented is governed by Rules 7.1 and there is no constitutional impediment to prohibiting 7.5 of the Georgia Rules of Professional Conduct. Rule names of law firms that are false, fraudulent, decep- 7.5 (a) provides that “[a] lawyer shall not use a firm tive, or misleading. name, letterhead or other professional designation that violates Rule 7.1.” Rule 7.1 (a), in turn, provides that The question, of course, is whether a particular firm advertisements about a lawyer’s services may not be name is false, fraudulent, deceptive, or misleading. “false, fraudulent, deceptive or misleading.” A firm The requestor has asked only about whether the use of name is a form of advertising about a lawyer’s services, “group” in a sole practitioner’s firm name, such as Doe and so a firm name may not be false, fraudulent, decep- Law Group,2 is false, fraudulent, deceptive, or mis- tive, or misleading either. Rule 7.5 Comment [1]. In leading. Because the use of “firm” and “& Associates” addition, Rule 7.5 (d) provides that a firm name may in a sole practitioner’s firm name, such as Doe Law

76 Georgia Bar Journal Firm and Doe & Associates, is so similar to the use “firm” as “the name or title under which a company of “group,” this opinion considers all three. Indeed, transacts business.” Merriam-Webster’s Collegiate the Office of the General Counsel regularly receives Dictionary at 472. Even Black’s Law Dictionary is requests for ethical guidance regarding the use of all of ambiguous about whether “firm” signifies more than these terms in firm names, not just the use of “group” one person. It defines “firm” both as “[t]he title under as the requestor has asked, and so it is appropriate to which one or more persons conduct business jointly” expand the scope of the requestor’s request. and as “[t]he association by which persons are united for business purposes.” Black’s Law Dictionary 751 In determining whether it is false, fraudulent, decep- (10th ed. 2014). Thus, unlike “group,” “firm” is not tive, or misleading for a sole practitioner to use “group” necessarily pluralistic. in his firm name, this opinion first considers the common dictionary definitions of this term. According The definition of “firm” in the Rules means that it is to the New Oxford American Dictionary, a “group” not false or untruthful for a sole practitioner to use a in the business context is “a number of people who firm name that includes “firm.” But because an accu- work together or share certain beliefs.” New Oxford rate firm name still may be deceptive or misleading, American Dictionary 768 (3d ed. 2010). Merriam- this opinion must consider whether a firm name such Webster similarly defines “group” as “a number of as Doe Law Firm is deceptive or misleading when individuals assembled together or having some uni- Doe is a sole practitioner. This name is not inherently fying relationship.” Merriam-Webster’s Collegiate deceptive or misleading because it would not cause a Dictionary 552 (11th ed. 2011). These common diction- reasonable member of the public to believe that Doe ary definitions of “group,” as well as the absence of a necessarily practices with other lawyers.4 However, specialized definition of “group” in the context of the the use of “firm” in a sole practitioner’s firm name legal profession, lead to the conclusion that a sole prac- could be deceptive or misleading in certain contexts, titioner may not use “group” in his firm name because and so a sole practitioner who uses “firm” in his firm this term would incorrectly imply that the firm consists name must be mindful of his obligations under Rules of multiple lawyers. This conclusion is consistent with 7.1 and 7.5. ethics opinions in other jurisdictions,3 and it is also consistent with the position taken by the Office of the The use of “& Associates” in a sole practitioner’s firm General Counsel when it has been presented with infor- name, such as Doe & Associates, is a much more com- mal inquiries regarding the use of “group” in a sole mon issue. Whether this is proper depends on the mean- practitioner’s firm name. ing of “associate.” Generally, an associate is “a partner or colleague in business or at work” or “a person with limit- A different result is required with respect to the use ed or subordinate membership in an organization.” New of “firm” in a sole practitioner’s firm name. Although Oxford American Dictionary at 97; see also Merriam- there is some similarity between the meanings of “firm” Webster’s Collegiate Dictionary at 75 (defining “asso- and “group” in denoting the name of a business, a ciate” as “an entry-level member (as of a learned society, different result is required because the Rules define professional organization, or profession)”); Black’s Law a “firm” as “a lawyer or lawyers in a private firm, Dictionary at 147 (defining “associate” as “[a] colleague law partnership, professional corporation, sole pro- or companion”). But “associate” has acquired a specific prietorship or other association authorized to practice meaning in the context of the legal profession: law.” Rule 1.0 (e). “This specific definition is, at least implicitly, a recognition that firms may consist of many An associate is a … lawyer-employee who is not lawyers or only a single practitioner.” D.C. Bar, Legal a partner of the firm. All other non-lawyer employ- Ethics Comm., Ethics Op. 332 (2005). ees are to be considered simply employees and not associates. This category of employees includes Nevertheless, it should be noted that the common paralegals, secretaries, non-lawyer clerks, officer [sic] dictionary definitions of “firm” are not as clear as the managers and the like. When the word associates is common dictionary definitions of “group.” The New employed on firm letterhead or in commercial adver- Oxford American Dictionary defines “firm” as “a busi- tisement such term refers to lawyers working in the ness concern, esp. one involving a partnership of two firm who are employees of the firm and not partners. or more people; a law firm.” New Oxford American Dictionary at 651. Although this definition assumes Florida Bar v. Fetterman, 439 So. 2d 835, 838-39 (1983) that most firms will be comprised of more than one (per curiam); see also Black’s Law Dictionary at 147 person, it allows for the possibility that a firm will (defining “associate” as “[a] junior member of an orga- have only one person. Similarly, Merriam-Webster nization or profession; esp., a lawyer in a law firm, defines “firm” as “a partnership of two or more per- usu. with fewer than a certain number of years in prac- sons that is not recognized as a legal person distinct tice, who may, upon achieving the requisite seniority, from the members composing it,” but it also defines receive an offer to become a partner or shareholder”).5

April 2016 77 This opinion adopts this definition. This means of Gen. Couns., Formal Op. 1993-11 (1993). Similarly, in that a sole practitioner may not use a firm name that the District of Columbia, the factors considered include includes “& Associates” because, by definition, a the frequency and duration of the firm’s time with- sole practitioner does not have any associates. A sole out the requisite number of associates and the extent practitioner also may not use “& Associates” in his of the efforts made to hire more associates. D.C. Bar, firm name to refer to partners or non-lawyer employ- Legal Ethics Comm., Ethics Op. 189 (1988). Ultimately, ees, such as paralegals, investigators, nurse consul- though, a law firm will have to change its name if it no tants, etc., because they are not associates. For the longer employs at least two associates. This opinion same reason, a sole practitioner also may not use “& agrees with the flexibility used in Minnesota, Alabama, Associates” in his firm name to refer to lawyers with and the District of Columbia, but determining whether whom he has an office-sharing arrangement. Thus, a firm name violates Rules 7.1 or 7.5 because of hiring for a firm name that includes “& Associates” to be and firing decisions will have to be made on a case-by- proper, there must be at least one lawyer who employs case basis. two or more associates.6 For example, a firm name such as Doe & Associates is proper only if Doe is the Although this opinion does not consider all of the only partner in the firm and the firm employs at least possible terminology that could be used in the name of two associates. Otherwise, the name would be false, a sole practitioner’s firm, it does establish the principle fraudulent, deceptive, or misleading because it would that any name implying that a firm is larger than it incorrectly identify the number of lawyers in the truly is will be considered false, fraudulent, deceptive, firm and misrepresent the status of the firm’s lawyers or misleading and, therefore, a violation of Rules 7.1 and employees. and 7.5.

This conclusion raises additional questions, and Endnotes although it is not possible to foresee all questions 1. For purposes of this opinion, a sole practitioner is a that may arise, a couple of the more obvious ones are lawyer who does not have any partners and does not addressed here. First, is it proper to use “& Associates” employ any other lawyers. in a firm name to refer to part-time associates, lawyers 2. This opinion uses Doe Law Group, Doe Law Firm, and Doe & Associates as examples of firm names implicated designated as “of counsel,”7 and lawyers hired on a by the question presented. These sample names are contract basis? The answer depends on the degree to fictitious and are not intended to refer to actual law firms which the lawyer practices with the firm. For example, or lawyers. a part-time associate who works one day every month 3. It appears that there are opinions on this issue from might not qualify, but a part-time associate who works only four other jurisdictions, and all four concluded twenty-five hours every week probably would qualify. that a firm name may include “group” only if there are The key is not the lawyer’s title but rather whether the two or more lawyers practicing together. Wash. State lawyer actively and regularly practices with the firm.8 Bar Ass’n, Advisory Op. 2163 (2007); Wash. State Bar If the lawyer does so, he falls within the definition of Ass’n, Advisory Op. 2121 (2006); Sup. Ct. of Ohio, Bd. of “associate” quoted above, even though he may not Comm’rs on Grievances & Discipline, Op. 2006-2 (2006); work full-time hours and may actually be a contractor N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. 732 (2000); Mo. Bar, Informal Advisory Op. 20000142 (2000). rather than an employee. 4. Again, it appears that there are very few opinions on this issue from other jurisdictions. All of them agree that Second, must a lawyer whose firm name includes a sole practitioner may use the term “firm” in his firm “& Associates” change the name of the firm when the name. N.Y. State Bar Ass’n, Comm. on Prof’l Ethics, Op. number of associates employed by the firm falls below 869 (2011); D.C. Bar, Legal Ethics Comm., Ethics Op. two? At that time, the name of the firm has become 332 (2005); Ala. State Bar, Off. of Gen. Couns., Formal inaccurate, but this opinion recognizes the practical Op. 1993-11 (1993); Iowa Sup. Ct., Bd. of Prof’l Ethics & difficulties associated with changing a firm’s name. Conduct, Op. 79-68 (1979). When confronted with this issue, other jurisdictions 5. In the analogous context of interpreting a statute, have taken a flexible approach. In Minnesota, the con- “the ordinary signification shall be applied to all tinued use of “& Associates” in a firm name will not words, except words of art or words connected with a particular trade or subject matter, which shall have the subject the lawyer to discipline if the requisite number signification attached to them by experts in such trade of associates are hired within a reasonable amount of or with reference to such subject matter.” O.C.G.A. time or if the lawyer reasonably and objectively antici- § 1-3-1(b). This principle warrants reliance on the pates hiring the requisite number of associates within a specific definition that “associate” has acquired in reasonable amount of time. Minn. Lawyers Prof’l Resp. the context of the legal profession rather than on its Bd., Op. 20 (2009). In Alabama, a disciplinary decision general definition. may depend on how long the firm has been without the 6. Almost all other state bar associations that have requisite number of associates and what efforts have considered this issue, as well as the American Bar been made to hire more associates. Ala. State Bar, Off. Association, agree with this conclusion. N.Y. State Bar

78 Georgia Bar Journal Ass’n, Comm. on Prof’l Ethics, Op. 931 (2012); Minn. when there is only one associate employed by the Lawyers Prof’l Resp. Bd., Op. 20 (2009); State Bar of firm. Ala. State Bar, Off. of Gen. Couns., Formal Op. N.M., Ethics Advisory Comm., Formal Ethics Advisory 1993-11 (1993); State Bar of Ariz., Comm. on Rules of Op. 2006-1 (2006); S.C. Bar Ethics Advisory Comm., Prof’l Conduct, Op. 90-01 (1990). This opinion rejects Ethics Advisory Op. 05-19 (2005); D.C. Bar, Legal Ethics this view because “& Associates,” as a plural term, Comm., Ethics Op. 332 (2005); Sup. Ct. of Ohio, Bd. of obviously refers to more than one associate. Thus, Comm’rs on Grievances & Discipline, Op. 95-1 (1995); the use of “& Associates” in a firm name to refer to Utah State Bar, Ethics Advisory Op. Comm., Op. 138 only one associate is false, fraudulent, deceptive, or (1994); Va. State Bar, Legal Ethics Op. 1532 (1993); D.C. misleading. However, the use of “& Associate” would Bar, Legal Ethics Comm., Ethics Op. 189 (1988); Wash. present a different question. State Bar Ass’n, Advisory Op. 1086 (1987); Fla. Bar, 7. See State Bar of Ga., Formal Advisory Op. 98-4 (1998) Ethics Op. 86-1 (1986); Wash. State Bar Ass’n, Advisory (defining what constitutes an “of counsel” relationship Op. 919 (1985); Miss. Bar Ethics Comm., Op. 93 (1984); between a lawyer and a law firm). Wash. State Bar Ass’n, Advisory Op. 178 (1984); Ky. 8. In Utah, a lawyer qualifies as an “associate” only if Bar Ass’n, Ethics Op. E-246 (1981); Okla. Bar Ass’n, he “regularly spends a majority of [his] time working Ethics Op. 288 (1975); N.Y. State Bar Ass’n, Comm. on on legal matters for the firm.” Utah State Bar, Ethics Prof’l Ethics, Op. 286 (1973); Colo. Bar Ass’n Ethics Advisory Op. Comm., Op. 04-03 (2004). This standard Comm., Formal Op. 50 (1972); ABA Comm. on Prof’l is too stringent, especially in light of the fact that a Ethics, Formal Op. 318 (1967); ABA Comm. on Prof’l lawyer in Georgia is permitted to practice in multiple Ethics, Formal Op. 310 (1963). Two states, Alabama law firms. State Bar of Ga., Formal Advisory Op. 97-2 and Arizona, appear to allow the use of “& Associates” (1997). Second Publication of Proposed Redrafted Formal Advisory Opinion No. 03-2

NOTICE OF FILING OF FORMAL Rule 4-403 (d) states that within 20 days of the filing ADVISORY OPINION IN SUPREME COURT of the Formal Advisory Opinion or the date the publi- OF GEORGIA cation is mailed to the members of the Bar, whichever is later, only the State Bar of Georgia or the per- Second Publication of Proposed Redrafted son who requested the opinion may file a petition Formal Advisory Opinion No. 03-2 for discretionary review thereof with the Supreme Hereinafter known as “Formal Advisory Opinion No. 03-2 Court of Georgia. The petition shall designate the Formal Advisory Opinion sought to be reviewed and FAO No. 03-2 was originally issued by the Formal shall concisely state the manner in which the peti- Advisory Opinion Board on September 11, 2003, pur- tioner is aggrieved. If the Supreme Court grants the suant to Bar Rule 4-403 (d). On November 3, 2011, the petition for discretionary review or decides to review Georgia Rules of Professional Conduct were amended the opinion on its own motion, the record shall consist by order of the Supreme Court of Georgia. To determine of the comments received by the Formal Advisory what impact, if any, the amendments to the rules had Opinion Board from members of the Bar. The State on FAO No. 03-2, the Formal Advisory Opinion Board Bar of Georgia and the person requesting the opinion reviewed the opinion. Upon review, the Formal Advisory shall follow the briefing schedule set forth in Supreme Opinion Board determined that the substance and/or the Court Rule 10, counting from the date of the order conclusion reached in the opinion has changed as a result granting review. A copy of the petition filed with the of the amendment to the rules. Accordingly, the Formal Supreme Court of Georgia pursuant to Rule 4-403 Advisory Opinion Board has redrafted FAO No. 03-2. The (d) must be simultaneously served upon the Board proposed redrafted opinion interprets the amended rules through the Office of the General Counsel of the in addressing the same issues presented in the State Bar or Georgia. The final determination may be original opinion. either by written opinion or by order of the Supreme Court and shall state whether the Formal Advisory Members of the State Bar of Georgia are here- Opinion is approved, modified, or disapproved, or by NOTIFIED that the Formal Advisory Opinion shall provide for such other final disposition as Board has issued the redrafted version of Formal is appropriate. Advisory Opinion No. 03-2, pursuant to the provisions of Rule 4-403 (d) of Chapter 4 of the Rules and In accordance with Rule 4-223 (a) of the Rules and Regulations of the State Bar of Georgia approved Regulations of the State Bar of Georgia, any Formal by order of the Supreme Court of Georgia on May Advisory Opinion issued pursuant to Rule 4-403 1, 2002. This opinion will be filed with the Supreme which is not thereafter disapproved by the Supreme Court of Georgia on or after April 30, 2016. Court of Georgia shall be binding on the State Bar of

April 2016 79 Georgia, the State Disciplinary Board, and the person opinion as persuasive authority only. If the Supreme who requested the opinion, in any subsequent disci- Court grants review and disapproves the opinion, it shall plinary proceeding involving that person. have absolutely no effect and shall not constitute either persuasive or binding authority. If the Supreme Court Pursuant to Rule 4-403 (e) of Chapter 4 of the Rules approves or modifies the opinion, it shall be binding on and Regulations of the State Bar of Georgia, if the all members of the State Bar and shall be published in Supreme Court of Georgia declines to review the Formal the official Georgia Court and Bar Rules manual. The Advisory Opinion, it shall be binding only on the State Supreme Court shall accord such approved or modified Bar of Georgia and the person who requested the opin- opinion the same precedential authority given to the ion, and not on the Supreme Court, which shall treat the regularly published judicial opinions of the Court. Proposed Redrafted Formal Advisory Opinion No. 03-2

STATE BAR OF GEORGIA honor the request and then determine if continuing with ISSUED BY THE FORMAL ADVISORY OPINION the representation while honoring the request will: a) be BOARD inconsistent with the lawyer’s obligations to keep the other PURSUANT TO RULE 4-403 ON JANUARY 26, 2016 client informed under Rule 1.4. Communication; b) mate- FORMAL ADVISORY OPINION NO. 03-2 rially and adversely affect the representation of the other (Redrafted In Light of the November 3, 2011 client under Rule 1.7. Conflict of Interest: General Rule; Amendments to the Georgia Rules of Professional or c) both. Conduct) The lawyer has discretion to continue with the joint Question Presented: representation while not revealing the confidential information to the other client only to the extent that Does the obligation of confidentiality described he or she can do so consistent with these rules. If main- in Rule 1.6. Confidentiality of Information, apply as taining the confidence will constitute a violation of between two jointly represented clients? Rule 1.4 or Rule 1.7, as it almost certainly will, the lawyer should maintain the confidence and discontinue Summary Answer: the joint representation.1

The obligation of confidentiality described in Rule Consent to conflicting representations, of course, is 1.6. Confidentiality of Information, applies as between permitted under Rule 1.7. Consent to continued joint two jointly represented clients. An attorney must honor representation in these circumstances, however, ordi- one client’s request that information be kept confidential narily would not be available either because it would from the other jointly represented client. Honoring the be impossible to obtain the required informed consent client’s request will, in almost all circumstances, require without disclosing the confidential information in ques- the attorney to withdraw from the joint representation. tion2 or because consent is not permitted under Rule 1.7 in that the continued joint representation would “involve Opinion: circumstances rendering it reasonably unlikely that the lawyer will be able to provide adequate representation Unlike the attorney-client privilege, jointly rep- to one or more of the affected clients.” Rule 1.7 (c) (3). resented clients do not lose the protection of confidentiality described in Rule 1.6. Confidentiality of The potential problems that confidentiality can cre- Information, as to each other by entering into the ate between jointly represented clients make it espe- joint representation. See, e.g., D.C. Bar Legal Ethics cially important that clients understand the require- Committee, Opinion No. 296 (2000) and Committee on ments of a joint representation prior to entering into Professional Ethics, New York State Bar Association, one. When an attorney is considering a joint represen- Opinion No. 555 (1984). Nor do jointly represented tation, informed consent of the clients, confirmed in clients impliedly consent to a sharing of confidences writing, is required prior to the representation “if there with each other. is a significant risk that the lawyer’s . . . duties to [either of the jointly represented clients] . . . will materially When one client in a joint representation requests and adversely affect the representation of [the other] that some information relevant to the representation be client.” Rule 1.7. Whether or not informed consent is kept confidential from the other client, the attorney must required, however, a prudent attorney will always

80 Georgia Bar Journal discuss with clients wishing to be jointly represented regarding the joint representation.”) A large number of the need for sharing confidences between them, obtain highly varied recommendations have been made about their consent to such sharing, and inform them of the how to deal with these specific concerns in this specific consequences of either client’s nevertheless insisting practice setting. See, e.g., Pearce, Family Values and Legal on confidentiality as to the other client and, in effect, Ethics: Competing Approaches to Conflicts in Representing revoking the consent.3 If it appears to the attorney that Spouses, 62 Fordham L. Rev. 1253 (1994); and, Collett, either client is uncomfortable with the required sharing And The Two Shall Become As One . . . Until The Lawyers of confidential information that joint representation Are Done, 7 Notre Dame J. L. Ethics & Public Policy 101 requires, the attorney should reconsider whether joint (1993) for discussion of these recommendations. Which representation is appropriate in the circumstances. If recommendations are followed, we believe, is best left a putative jointly represented client indicates a need to the practical wisdom of the good lawyers practicing for confidentiality from another putative jointly repre- in this field so long as the general ethical requirements sented client, then it is very likely that joint represen- of the Rules of Professional Conduct as described in this tation is inappropriate and the putative clients need Opinion are met. individual representation by separate attorneys. Endnotes The above guidelines, derived from the requirements 1. See ABA Model Rules of Prof’l Conduct, R. 1.7, cmt. 31 of the Georgia Rules of Professional Conduct and con- (“As to the duty of confidentiality, continued common sistent with the primary advisory opinions from other representation will almost certainly be inadequate if one jurisdictions, are general in nature. There is no doubt client asks the lawyer not to disclose to the other client information relevant to the common representation.”) that their application in some specific contexts will create 2. See Georgia Rules of Prof’l Conduct, R. 1.0 (h) (defining additional specific concerns seemingly unaddressed in “informed consent” as “the agreement by a person the general ethical requirements. We are, however, with- to a proposed course of conduct after the lawyer has out authority to depart from the Rules of Professional communicated adequate information and explanation Conduct that are intended to be generally applicable about the material risks of and reasonably available to the profession. For example, there is no doubt that alternatives to the proposed course of conduct”); see also the application of these requirements to the joint repre- id., cmt. 6 (“The lawyer must make reasonable efforts sentation of spouses in estate planning will sometimes to ensure that the client or other person possesses place attorneys in the awkward position of having to information reasonably adequate to make an informed withdraw from a joint representation of spouses because decision. Ordinarily, this will require communication that of a request by one spouse to keep relevant informa- includes a disclosure of the facts and circumstances giving rise to the situation, any explanation reasonably necessary tion confidential from the other and, by withdrawing, to inform the client or other person of the material not only ending trusted lawyer-client relationships but advantages and disadvantages of the proposed course of also essentially notifying the other client that an issue conduct and a discussion of the client’s or other person’s of confidentiality has arisen. See, e.g., Florida State options and alternatives.”) Bar Opinion 95-4 (1997) (“The attorney may not reveal 3. See ABA Model Rules of Prof’l Conduct, R. 1.7, cmt. confidential information to the wife when the husband 31 (advising that “[a] lawyer should, at the outset of the tells the attorney that he wishes to provide for a ben- common representation and as part of the process of eficiary that is unknown to the wife. The attorney must obtaining each client’s informed consent, advise each withdraw from the representation of both husband and client that information will be shared and that the lawyer wife because of the conflict presented when the attor- will have to withdraw if one client decides that some ney must maintain the husband’s separate confidences matter material to the representation should be kept from the other).

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April 2016 81 Supreme Court of Georgia Approves Amendment to the Rules and Regulations for the Organization and Governance of the State Bar of Georgia

The Supreme Court of Georgia, having considered legal services for another to direct or regulate the Motion 2015-1 to Amend the Rules and Regulations for lawyer’s professional judgment in rendering such the Organization and Government of the State Bar of legal services. Georgia, issued an order approving an amendment to the following rule effective February 4, 2016. (d) A lawyer shall not practice with or in the form of a professional corporation or association authorized RULE 5.4. PROFESSIONAL INDEPENDENCE OF A to practice law for a profit, if: LAWYER (1) a nonlawyer owns any interest therein, except (a) A lawyer or law firm shall not share legal fees that a fiduciary representative of the estate of a with a nonlawyer, except that: lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; (1) an agreement by a lawyer with the lawyer’s firm, partner, or associate may provide for the (2) a nonlawyer is a corporate director or officer payment of money, over a reasonable period of thereof; or time after the lawyer’s death, to the lawyer’s estate or to one or more specified persons; (3) a nonlawyer has the right to direct or control the professional judgment of a lawyer. (2) a lawyer or law firm who purchases the practice of a deceased, disabled, or disappeared lawyer (e) A lawyer may: may, pursuant to the provisions of Rule 1.17, pay to the estate or other representative of that lawyer (1) Provide legal services to clients while work- the agreed-upon purchase price; and ing with other lawyers or law firms practicing in, and organized under the rules of, other (3) a lawyer or law firm may include nonlawyer jurisdictions, whether domestic or foreign, that employees in a compensation or retirement plan, permit non-lawyers to participate in the man- even though the plan is based in whole or in part agement of such firms, have equity ownership on a profit-sharing arrangement; and in such firms, or share in legal fees generated by such firms; and (4) a lawyer who undertakes to complete unfin- ished business of a deceased lawyer may pay to (2) Share legal fees arising from such legal services the estate of the deceased lawyer that proportion with such other lawyers or law firms to the same of the total compensation which fairly represents extent as the sharing of legal fees is permitted the services rendered by the deceased lawyer. under applicable Georgia Rules of Professional Conduct. (5) a lawyer may pay a referral fee to a bar- operated non-profit lawyer referral service where (3) The activities permitted under the preceding such fee is calculated as a percentage of legal portion of this paragraph (e) are subject to the fol- fees earned by the lawyer to whom the service lowing: has referred a matter pursuant to Rule 7.3. Direct Contact with Prospective Clients. (i) The association shall not compromise or interfere with the lawyer’s independence of profes- (b) A lawyer shall not form a partnership with a sional judgment, the client-lawyer relationship nonlawyer if any of the activities of the partnership between the client and the lawyer, or the law- consist of the practice of law. yer’s compliance with these Rules; and

(c) A lawyer shall not permit a person who (ii) Nothing in this paragraph (e) is intended recommends, employs, or pays the lawyer to render to affect the lawyer’s obligation to comply with

82 Georgia Bar Journal other applicable Rules of Professional Conduct, yer, that arrangement does not modify the lawyer’s or to alter the forms in which a lawyer is permit- obligation to the client. As stated in paragraph (c), such ted to practice, including but not limited to the arrangements should not interfere with the lawyer’s creation of an alternative business structure in professional judgment. Georgia. [2] The provisions of paragraph (e) of this Rule are The maximum penalty for a violation of this Rule not intended to allow a Georgia lawyer or law firm to is disbarment. create or participate in alternative business structures (ABS) in Georgia. An alternative business structure Comment is a law firm where a non-lawyer is a manager of the firm, or has an ownership-type interest in the firm. A [1] The provisions of this Rule express traditional limi- law firm may also be an ABS where another body is a tations on sharing fees. These limitations are to protect manager of the firm, or has an ownership-type interest the lawyer’s professional independence of judgment. in the firm. This Rule only allows a Georgia lawyer to Where someone other than the client pays the lawyer’s work with an ABS outside of the state of Georgia and fee or salary, or recommends employment of the law- to share fees for that work. Supreme Court of Georgia Approves Amendments to the Rules and Regulations for the Organization and Governance of the State Bar of Georgia

The Supreme Court of Georgia having considered (2) are in or reasonably related to a pending or Motion 2015-2 to Amend the Rules and Regulations for potential proceeding before a tribunal in this or the Organization and Government of the State Bar of another jurisdiction, if the Domestic Lawyer, or a Georgia, issued an order amending the following rules person the Domestic Lawyer is assisting, is autho- effective March 3, 2016: rized by law or order to appear in such proceeding or reasonably expects to be so authorized; Rule 5.5. UNAUTHORIZED PRACTICE OF LAW; MULTIJURISDICTIONAL PRACTICE OF LAW (3) are in or reasonably related to a pending or potential arbitration, mediation, or other alter- (a) A lawyer shall not practice law in a jurisdiction native dispute resolution proceeding in this or in violation of the regulation of the legal profession in another jurisdiction, if the services arise out of or that jurisdiction, or assist another in doing so. are reasonably related to the Domestic Lawyer’s practice in a jurisdiction in which the Domestic (b) A Domestic Lawyer shall not: Lawyer is admitted to practice and are not services for which the forum requires pro hac vice admis- (1) except as authorized by these Rules or other sion; or law, establish an office or other systematic and continuous presence in this jurisdiction for the (4) are not within paragraphs (c) (2) or (c) (3) practice of law; or and arise out of or are reasonably related to the Domestic Lawyer’s practice in a jurisdiction in (2) hold out to the public or otherwise represent which the Domestic Lawyer is admitted to practice. that the Domestic Lawyer is admitted to practice law in this jurisdiction. (d) A Domestic Lawyer, who is not disbarred or suspended from practice in any jurisdiction, may pro- (c) A Domestic Lawyer, who is not disbarred or vide legal services in this jurisdiction that: suspended from practice in any jurisdiction, may provide legal services on a temporary basis in this jurisdiction that: (1) are provided to the Domestic Lawyer’s employer or its organizational affiliates and are not ser- (1) are undertaken in association with a lawyer vices for which the forum requires pro hac vice who is admitted to practice in this jurisdiction and admission; or who actively participates in the matter;

April 2016 83 (2) are services that the Domestic Lawyer is autho- (2) The Foreign Lawyer is and remains in this rized to provide by federal law or other law of this country in lawful immigration status and complies jurisdiction. with all relevant provisions of United States immigration laws. (e) A Foreign Lawyer shall not, except as authorized by this Rule or other law, establish an office or (g) For purposes of the grants of authority found other systematic and continuous presence in this juris- in (e) and (f) above, the Foreign Lawyer must be a diction for the practice of law, or hold out to the public member in good standing of a recognized legal profes- or otherwise represent that the lawyer is admitted to sion in a foreign jurisdiction, the members of which are practice law in this jurisdiction. Such a Foreign Lawyer admitted to practice as lawyers or counselors at law or does not engage in the unauthorized practice of law in the equivalent and subject to effective regulation and this jurisdiction when on a temporary basis the Foreign discipline by a duly constituted professional body or a Lawyer performs services in this jurisdiction that: public authority.

(1) are undertaken in association with a lawyer (h) A person who is not a member of the State who is admitted to practice in this jurisdiction and Bar of Georgia, but who is allowed to practice law in who actively participates in the matter; Georgia on a limited basis pursuant to Supreme Court of Georgia Rules Part XXI, Rule 121, Provision Of Legal (2) are in or reasonably related to a pending or Services Following Determination Of Major Disaster, potential proceeding before a tribunal held or to may provide legal services in this state to the extent be held in a jurisdiction outside the United States allowed by said Rule. if the Foreign Lawyer, or a person the Foreign Lawyer is assisting, is authorized by law or by (i) A person who is not a member of the State order of the tribunal to appear in such proceeding Bar of Georgia, but who is allowed to practice law in or reasonably expects to be so authorized; Georgia on a limited basis pursuant to Supreme Court of Georgia Rules Part XV, Rules 91-95, Student Practice (3) are in or reasonably related to a pending or Rule, may provide legal services in this state to the potential arbitration, mediation, or other alterna- extent allowed by said Rule. tive dispute resolution proceedings held or to be held in this or another jurisdiction, if the services (j) A person who is not a member of the State arise out of or are reasonably related to the Foreign Bar of Georgia, but who is allowed to practice law in Lawyer’s practice in a jurisdiction in which the Georgia on a limited basis pursuant to Supreme Court Foreign Lawyer is admitted to practice; of Georgia Rules Part XVI, Rules 97-103, Law School Graduates, may provide legal services in this state to (4) are not within paragraphs (2) or (3) and the extent allowed by said Rule.

(i) are performed for a client who resides or has (k) A person who is not a member of the State an office in a jurisdiction in which the Foreign Bar of Georgia, but who is allowed to practice law in Lawyer is authorized to practice to the extent of Georgia on a limited basis pursuant to Supreme Court that authorization; or of Georgia Rules Part XX, Rules 114-120, Extended Public Service Program, may provide legal services in (ii) arise out of or are reasonably related to a this state to the extent allowed by said Rule. matter that has a substantial connection to a jurisdiction in which the lawyer is authorized The maximum penalty for a violation of this Rule is to practice to the extent of that authorization; or disbarment.

(iii) are governed primarily by international law Rule 7-303. Confidentiality. or the law of a non-United States jurisdiction. Except as provided in this Rule and in Rule 4-104 (f) A Foreign Lawyer, who is not disbarred or (b), Rule 4-104 (c), Rule 7-203 and Rule 7-305, all pro- suspended from practice in any jurisdiction, may ceedings and records of the Committee, its members, provide legal services in this jurisdiction subject to staff, consultants (including without limitation its the following conditions: contractor for clinical services) and other designees, including any information provided to any of them, (1) The services are provided to the Foreign shall be confidential unless the attorney who has Lawyer’s employer or its organizational affiliates provided the information or caused the record to be and are not services for which the forum requires created otherwise elects, except that any such person pro hac vice admission; and may reveal (i) to police or emergency responders, or

84 Georgia Bar Journal any person in imminent danger, information needed State Disciplinary Board of the State Bar of Georgia. to avoid or prevent death or substantial bodily harm, Information from a designee of the Committee act- and (ii) information: ing as a member of a volunteer network established pursuant to Rule 7-202 shall not constitute “evidence” (a) which is mandated by statute to be reported; within the meaning of the Rule.

(b) to respond in any proceeding to allegations of Rule 10-103. Funding. misfeasance concerning the assistance he or she has provided to an impaired attorney as part of a volunteer (a) The State Bar of Georgia shall provide funding network established pursuant to Rule 7-202; and for the payment of claims and the costs of administer- ing the Fund. In any year following a year in which (c) to secure legal advice about his or her compli- the gross aggregate balance of the Fund falls below ance with these Rules. $1,000,000, the State Bar of Georgia shall assess and collect from each dues-paying member a pro rata Rule 7-305. Emergency Suspension. share of the difference between the actual Fund balance and $1 million, provided that such assessments Upon receipt of sufficient evidence demonstrating shall not exceed $25 in any single year. The aggregate that an impaired attorney’s conduct poses a sub- amount paid to claimants from the Fund in any year stantial threat of immediate or irreparable harm to shall not exceed $500,000. The Board of Governors the attorney’s clients or the public, or if an impaired may from time to time adjust the Fund’s minimum attorney refuses to cooperate with the Committee aggregate balance, maximum annual payout, or after an authorized intervention or referral, or refuses maximum annual assessment to advance the pur- to take action recommended by the Committee, and poses of the Fund or to preserve the fiscal integrity said impaired attorney poses a substantial threat to of the Fund. the attorney, the attorney’s clients, or the public, the Committee may request that the Office of the General (b) All monies or other assets of the Fund shall con- Counsel petition the Supreme Court of Georgia for the stitute a trust and shall be held in the name of the Fund, suspension of the attorney pursuant to Rule 4-108. All subject to the direction of the Board. proceedings under this part which occur prior to the filing of a petition in the Supreme Court of Georgia (c) No disbursements shall be made from the Fund pursuant to this Rule shall remain confidential and except by the Board of Trustees. shall not be admissible against the attorney before the

How to Place an Announcement in the Bench & Bar column If you are a member of the State Bar of Georgia and you have moved, been promoted, hired WANT TO an associate, taken on a partner or received a promotion or award, we would like to hear from you. Talks, speeches (unless they are of national stature), CLE presentations and political SEE YOUR announcements are not accepted. In addition, the Georgia Bar Journal will not print notices of honors determined by other publications (e.g., Super Lawyers, Best Lawyers, Chambers USA, Who’s NAME IN Who, etc.). Notices are printed at no cost, must be submitted in writing and are subject to editing. Items are printed as space is available. News releases regarding lawyers who are not members in good standing of the State Bar of Georgia will not PRINT? be printed. For more information, please contact Lauren Foster, 404-527-8736 or [email protected].

April 2016 85 Notice of and Opportunity for Comment on Amendments to the Rules of the U.S. Court of Appeals for the Eleventh Circuit

Pursuant to 28 U.S.C. § 2071(b), notice and opportu- www.ca11.uscourts.gov. A copy may also be obtained nity for comment is hereby given of proposed amend- without charge from the Office of the Clerk, U.S. Court ments to the Rules of the U.S. Court of Appeals for the of Appeals for the Eleventh Circuit, 56 Forsyth St. Eleventh Circuit. NW, Atlanta, Georgia 30303 [phone: 404-335-6100]. Comments on the proposed amendments may be sub- A copy of the proposed amendments may be obtained mitted in writing to the Clerk at the above address by on and after April 6, 2016, from the court’s website at May 6, 2016. Proposed Amendments to the Uniform Rules of Superior Court At its business meeting on January 21, 2016, the Should you have any comments on the proposed Council of Superior Court Judges approved proposed changes, please submit them in writing to the Council amendments to Uniform Superior Court Rules 22 and of Superior Court Judges at 18 Capitol Square, Suite 36. A copy of the proposed amendments may be 104, Atlanta, Georgia 30334 or fax them to 404-651- found at the Council’s website at http://georgia 8626. To be considered, comments must be received by superiorcourts.org. Monday, July 11, 2016.

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Your Member Bene t Includes: U.S. Supreme Court All Federal Circuit Courts U.S. District Courts Appellate Decisions for all 50 States Nationwide Statutes

86 Georgia Bar Journal Classified Resources

Property/Rentals/Office Space Sandy Springs Law Building for Sale. Beautifully furnished 6579 square foot law building for sale LAWYER ASSISTANCE including: two beautiful and spacious conference rooms; law library; two private entrances and recep- PROGRAM tion areas; abundant free parking; two file/work rooms; storage room; break room adjacent to kitchen; security system. This brick law building overlooks a pond and is in a great location directly across the street from the North Springs MARTA Station; easy access to I-285 and GA 400; and close to Perimeter Mall, hotels, restaurants, hospitals, etc. Call 770-396- 3200 x24 for more information. Stress, life challenges Prime Buckhead Peachtree Offices for Rent—Brand or substance abuse? new, award-winning, high tech Class A offices on glass in new Peachtree Tower. Client wow factor Peachtree views. Concierge service, valet parking, three restaurants, across from Phipps Plaza. Support staff. Share with other former big firm lawyers. Referral work opportunities. Contact: [email protected]. We can From the law office of Guy Davis, deceased: Kimball Pres. Series walnut exec. desk 86x42 and credenza 78x19 in excellent condition, CWC sells new $8,000, asking help. $2,500, photos avail. Also FREE law books for decorat- ing. Martha Davis, 770-395-0030. The Lawyer Assistance Program is a Georgia Mountain Family Retreat—less than 2 hours free program providing confidential from downtown Atlanta; 4 BR, 3 B main house with assistance to Bar members whose 2 1/1 car garage and work room; fireplace; Franklin Stoves; central air and heat; high ceilings; remodeled personal problems may be interfering baths; 2 living rooms; big kitchen with new applianc- with their ability to practice law. es; 3.2 acres secluded but less than 3 miles from town; great decks with tons of birds; 1 mile to huge marina on Lake Notley; creek; great hiking nearby as well as golf, tennis and lots of other recreational facilities; IN ADDITION rental cabin with monthly income of $450 per month, Blairsville, Georgia. Price reduced to $249,990. Call Reynolds Allen @ 813 334 9321. Practice Assistance Information Technology Services. Specializing in custom databases, advanced spreadsheets & data forensics. Confidential Hotline Contact me first for your computer/data needs. 20 years’ experience. Local. Please review my client list at 800-327-9631 www.atlantaaccessandexcel.com. Contact me at 404- 377-4462 or [email protected].

April 2016 87 Classified Resources

Position Wanted PI Junior Associate Attorney (Jacksonville, FL) Law firm of military veterans is seeking veterans for their growing law firm. PI Jr associate attorneys (0-3 years’ experience and recent grads). Salary commensurate with experience. Please send cover letter and resume with references to [email protected].

Nationally recognized boutique law firm, headquartered in Tallahassee, FL, is searching for an associate to assist in handling large mergers and acquisitions. Minimum experience of 2 years. Competitive salary and benefits package. Email resume to [email protected].

Personal Injury Attorney—Atlanta plaintiff’s firm seeking an experienced (8+ years) PI attorney for a flexible, part-time position. Must be in good standing with the Bar association, have excellent writing skills and have experience in plaintiff or defense PI representation. Great financial opportunity. Send resume and cover letter: [email protected]. Marketing/Advertising Tell Your Story. Grow Your Firm. The legal profession is filled with great stories, unfortunately many are left untold. At Brandwater Media we specialize in growing sustainable marketing results for firms with genuine ADVERTISE purpose and vision. Let us help tell your story. Contact Are you attracting the right audience for your services? us at www.brandwatermedia.com, 813-777-9412, or Advertisers are discovering a fact well known to Georgia email [email protected]. lawyers. If you have something to communicate to the lawyers in the state, be sure that it is published in the Personal Development/Coaching Georgia Bar Journal. Contact Jennifer Mason at Bar exam anxiety? Trouble with marketing your prac- 404-527-8761 or [email protected]. tice? Legal career at a standstill? The answer doesn’t lie in working harder—your outcomes are being affected by energy blocks which prevent you from being Advertisers Index the best legal professional you can be. Confidential, Gilsbar, LLC...... 5 cutting-edge self-development coaching by Idara E. Bassey, J.D., LL.M., Mc.D. Make your appointment Law Firm of Shein & Brandenburg...... 17 with Dr. Idara today! 678-837-6567. Member Benefits, Inc...... 29

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88 Georgia Bar Journal Trial By Jury: What’s the Big Deal?

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

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

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

You may view “Trial By Jury: What’s the Big Deal?” at www.gabar.org/ forthepublic/forteachersstudents/lre/ teacherresources. For a free DVD copy, email [email protected] or call 404-527- 8736. For more information on the LRE Program, contact Deborah Craytor at [email protected] or 404-527-8785.

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