Vol. XXI Fall 2016 No. 1

(L-R) Chairman, William F. “Trey” Underwood, III presents the 2016 Tradition of Excellence Awards at the Section Breakfast June 17th at the Omni Amelia Island Plantation Resort to Judge Michael L. Murphy, Buchanan (judicial); John W. Timmons, Athens (general practice); John A. Dickerson, Toccoa (defense); and William S. Stone, Blakey (plaintiff) MARK YOUR CALENDAR NOW

for the 17th Annual GENERAL PRACTICE and TRIAL SECTION INSTITUTE MARCH 16, 17, 18, 2017 to be held at King and Prince Hotel St. Simons Island Chairman: William F. “Trey” Underwood, III General Practice and Trial Section State Bar of Georgia Vol. XXI Fall 2016 No. 1 “Georgia’s Largest Law Firm”

Editor David A. Sleppy Articles Executive Director n Letter to the Membership from Incoming Chairman Betty Simms Kristine Orr Brown 2 2016/2017 Officers Kristine Orr Brown n Remarks from Outgoing Chair Chairman William F. Trey Underwood, III. 4 Paul W. Painter, III Chairman-Elect Robert S. Register n 2016 Tradition of Excellence Awards Secretary/Treasurer William F. “Trey” Underwood, III John A. Dickerson Immediate Past Chair Introduced by Dennis Cathy 5

2016/2017 Board Members John W. Timmons Carl R. Varendoe Introduced by Jennifer Riley 8 Amy Purvis Holbrook Ivy Cadle Judge Michael L. Murphy Jennifer Riley Introduced by Bill Lundy & Karen Wilkes 13 Dawn M. Jones Judge Chris Edwards William S. Stone Thomas E. Cauthorn Introduced by Jim Butler 18 Senator Blake Tillery Judge Chan Caudell Ray J. Doumar n 2015 Tradition of Excellence Breakfast and Reception 22 Chandler Bridges Danny Griffin n Tortious Misconduct: James “Wick” Cauthorn A narrow exception to the general rule of corporate Kenneth L. Shigley Robert O. Bozeman immunity from liability for slander committed William Parker Sanders by employees Zahra Karinshak Christopher C. Edwards and Erich Schultheiss 24

Trustees n Providing Business Advice to a Albert Fendig, Jr. William F. Underwood, Jr. Healthcare Client can be the Good Deed that Paul M. Hawkins Joe A. Weeks will not go Unpunished John C. Bell, Jr. Mark Dehler John T. Laney, III John W. Timmons J.D. “Randy” Dalbey 34 Robert P. Wilson Sally Akins Thomas Wm. Malone Cathy Harris Helms Paul D. Hermann Jefferson “Cal” Callier Rudolph Patterson S. Lester Tate, III James B. Pilcher Wright Gammon John E. James Myles Eastwood Verlyn C. Baker Mary A. Prebula Calendar Call is the official publication of the General Practice and Trial Section Paul W. Painter, Jr. Adam Malone of the State Bar of Georgia. Statements and opinions expressed in the editorials Joel O. Wooten, Jr. William P. Langdale,III and articles are not necessarily those of the Section of the Bar. Calendar J. Sherrod Taylor Joseph A. Roseborough John M. Hyatt Darren W. Penn Call welcomes the submission of articles on topics of interest to the Section. James H. Webb, Jr. Laura Austin Submissions should be doublespaced, typewritten on letter-size paper, with the Judge Bonnie Oliver Nicholas J. Pieschel article on disk or sent via e-mail together with a bio and picture of the author William L. Lundy, Jr. and forwarded to Editor: David A. Sleppy, 649 Irvin St., P.O. Box #689, Cornelia, GA 30531, [email protected]. Published by Appleby & Associates, Winston, Georgia.

1 Letter to the Membership From Incoming Chairperson: Kristine Orr Brown

Gainesville law practice in 1995, assist individuals who Georgia it was truly a “general” practice. Legal Services (“GLS”) is unable Over the years, he had handled to assist due to the legal matter cases from divorce to zoning involved or the lack of avail- to employment law to person- able resources. Many people al injury, and the list goes on. throughout the State who other- While my practice is now large- wise would not have the oppor- ly specialized in employment tunity to receive legal advice are law, membership in the Gen- helped by the volunteers. This eral Practice and Trial Section is year, Ask-A-Lawyer Day will beneficial for multiple reasons. be held on October 27, 2016 in The Section offers a very strong each of the cities in which GLS seminar schedule concerning has an office, as well as Young trying cases and a variety of Harris and Valdosta. The areas seminars concerning specific of law being covered this year areas of the law. The Section are: records restrictions, family, also offers an annual seminar consumer, and landlord tenant. for those new to the practice During the course of the year, of law. Section membership is I hope to increase membership I am honored to serve as Chair- diverse as to areas of law prac- use of the Section listserv. Like man of the State Bar of Georgia’s ticed and location in the state. me, many members may not General Practice and Trial Sec- Getting to know attorneys from have known that we have a list- tion this year. It has been a true around the state who one might serv because it has not been uti- privilege to serve on this board not otherwise meet through lized. However, I believe such since 2009. I have learned much specialized groups or list-serves a listserv could be helpful to from past Chairmen, fellow provides a great resource when many section members. Joining board members, and Executive one needs to refer a potential cli- this section is very affordable Director Betty Simms, and hope ent or is faced with a situation and the listserv would economi- to continue the Section’s good in one of his or her cases that cally provide access to a wide- works during the current year. is outside that attorney’s nor- ranging group of attorneys for Thank you to Trey Underwood mal practice area(s). The Sec- purposes of advice or referrals. for his excellent leadership last tion provides a great vehicle for Access to attorneys experienced year. The Section membership presenting legislative proposals in so many areas of the law appreciates all the time and en- to the State Bar seeking its sup- is likely not possible through ergy Trey dedicated to ensuring port for legislation. The Section practice specific listserves. The the Sections continued success. also provides an opportunity Board is beginning the process I have benefited greatly for pro bono work through its of creating listserv guidelines from membership in this Sec- yearly Ask-A-Lawyer Day event and updating membership ac- tion. When I joined my father’s in which attorneys volunteer to cess. I look forward to reintro-

2 ducing the listserv upon com- fies the membership’s needs. gentleman. One can learn much pletion of those tasks. I would like to conclude by from such accomplished law- The Board also plans to sub- congratulating this year’s Tradi- yers. I encourage all members mit a survey to the membership tions in Excellence winners, John to attend this event in the future. concerning preferences for the Dickerson, The Honorable Mi- I am looking forward to the annual Trial Institute, includ- chael Murphy, John Timmons, year ahead. Please contact me ing questions regarding location and Bill Stone. It was such a at kbrown@orrbrownandbillips. and the factors considered in pleasure attending the Tradition com or 404.492.8686 if you have any deciding upon attendance. We of Excellence Breakfast at the suggestions or questions regarding hope that the results will better State Bar Annual Convention the Section. enable the Section to plan the In- and getting to hear the wonder- stitute in the way that best satis- ful personal stories about these

EVENTS TO WATCH FOR

January 6, 2017 The General Practice and Trial Section Mid year Luncheon to be held at the Ritz Carlton Hotel in Buckhead

January 13, 2017 Jury Trials Co-Chairs Rob Register and Nick Pieschel

March 16-18, 2017 The 17th General Practice and Trial Section Institute to be held at the King and Prince Hotel, St. Simons Island. Chair Trey Underwood

3 William F. Trey Underwood, III Section Chair

Remarks from Outgoing Chair

Tempus Fugit: The English trans- it can be, and, if you haven’t Excellence Awards to this year’s lation for this Latin phrase is “time participated previously, I would recipients, Judge Michael Murphy, flies.” There is a clock in my house encourage you to participate in this John Timmons, Bill Stone, and which my grandfather built, and worthwhile pro bono project. John Dickerson. The Tradition the clock bears this Latin phrase. Like clockwork, our Section once of Excellence Breakfast is always Tempus fugit aptly describes my again this year sponsored and an inspiring morning. The “war time as the Chair of the General co-sponsored a number of well stories” told by the recipients and Practice and Trial Section. The past attended continuing legal education their introducers always give the year has passed quickly. When seminars. Immediate Past Chair, audience a refreshing stimulation I first became Chair of the Sec- Nick Pieschel put together a great to go back out and continue the tion at last year’s annual meeting, lineup of speakers at this year’s fight for our clients. This year’s I was honored but felt a bit over- General Practice and Trial Section breakfast proved no different. whelmed. Fortunately, our Execu- Institute at Amelia Island. Rob Lastly, I would like to thank my tive Director, Betty Sims, and my Register, our new Secretary/ fellow Board members, Immediate- fellow Board members made the Treasurer, served as Chair of our Past Chair Nick Pieschel, and, of job of chairing the section one of popular Jury Trial seminar once course, Betty Sims, without whom relative ease. again, and the attendance at that our Section could not thrive. It has Through the efforts of Paul seminar was better than ever. truly been an honor and privilege Painter and Georgia Legal Services, Rather than returning to Amelia to serve as the Chair of this the Section’s annual Ask a Lawyer for 2017, I have opted to return the Section. I was humbled to be able day was again a success and put Institute to the King and Prince at to lead a great group of attorneys. Georgia lawyers in touch with St. Simons. It is scheduled to take Fortunately, I know our Section many citizens unable to otherwise place March 16-18, 2017. I hope to is in good hands going forward. afford legal services and in need be able to continue the tradition Kris Orr Brown has already taken of legal help. Originally founded of excellence for the seminar set over the reins and is settling in as by former Chair, Pope Langdale, by Nick and other past Chairs. If the current Chair. Paul Painter the Section’s Ask a Lawyer day has you have previously attended the and Rob Register will follow Kris become a staple event that proves Institute, you are familiar with and, without question, continue to be ever more successful each the excellent presentations and the tradition of excellence of our year. Our current Chair, Kris Orr speakers. If you haven’t attended section. Brown, Paul Painter, and the rest of previously, or if you have, I hope our Section’s members, as well as you will join us in St. Simons for Georgia Legal Services, are already 2017. The Institute allows for 12 working toward making this year’s CLE hours just prior to the deadline event even better. This year’s Ask for submitting CLE hours for the a Lawyer Day is scheduled to take year. place on October 27, 2016. If you Undoubtedly, the highlight have participated in the past, you of my time as Chair was being know what a rewarding experience able to present our Tradition of 4 DEFENSE John A. Dickerson

Introduced by Dennis Cathy

Good morning, everyone. I am here Today, my friend from Toccoa, to introduce a titan of the Northeast Georgia, will join that pantheon of le- Georgia Mountain Circuit Bar - my gal legends. He has already received friend John Dickerson. I was going many honors, about as many as one to commence this talk by recogniz- man can have, but I hope this one will ing the eminence and prestige of the be a little special to him. august luminaries who are present When John received this award he here but there are so many of them if called and asked me if I would pres- I referenced all of them I would not ent the award to him. I said to him have time for my talk and if I didn’t “John, for the last 30 years you have reference all of them someone’s ego made me your lackey in courtrooms would be bruised. As a matter of throughout North Georgia so how fact, this room has never before seen can I say no?” John and I started this infusion of ego with the pos- practice at about the same time and sible exception of the one time when we are about the same age and both Steve Spurrier was in this room and of us practice in the Mountain Judi- ate alone. But I do look around and cial Circuit. There is a physical bar- recognize so many people who have rier between our two counties known been so instrumental delivering civil as Currahee Mountain. For some of and criminal justice to the citizens you who might not know that was of the State of Georgia. Among the the training ground of the revered people here who are to be given the and historical Band of Brothers of highest accolades are those who have World War II. There was also the gulf heretofore received the Tradition of of philosophies between a plaintiff’s Excellence Award. It is truly the cast lawyer - the good guys of which I rep- of a hall of fame of the State Bar. The resent - and the defense lawyers - the General Practice and Trial Section of black hats, who John has made a ca- the State Bar is to be commended for reer of representing. Now don’t get creating this recognition and it brings me wrong, John has done lots of work together friends and colleagues who other than insurance defense work. can say on this one day at this unholy He has been renowned for his work in hour “thank you, we honor you and municipal law representing a wide as- we respect you.” continued on next page

5 Introduction for John A. Dickerson continued from previous page sortment of cities and towns in North In 1972, he became an associate at him here now and not at the Acree- Georgia including my home town the law firm of McClure, Ramsay & Davis Funeral Home in Toccoa. Mountain City for which I am eter- Struble and has been a named part- He and Paula have three children. nally grateful. However, we saw each ner at McClure, Ramsay, Dickerson Allen and his wife Kim live in Mari- other mostly in the world of plaintiff & Escoe for the last 44 years. I real- etta. Allen works for the Georgia versus defendant. I often introduced ize that by just looking at him you do Municipal Association and they have John to my children as “Kids, here is not think that it is possible that he has a daughter Merat - named after her a man who is trying to keep you from been at it that long! In this day and mom’s family and son Johnny named going to college.” time with the fluid movement of law- after his old grandpa. They call John- Let me tell you a little about John as yers in the eternal quest for a bigger ny the “Tornado” also like his old a man and as a person who is unsur- and better deal it is quite unusual for grandpa. The second son, Corey, passed in character. A little history: someone to stay with a practice, dem- and his wife, Jennifer, live in Jeffer- John was born in Hartwell, Georgia, onstrate their loyalty and become a son where Corey coaches football and and he is the son of the late Fay and solid part of the community like John Jennifer teaches. Corey and Jennifer Laura Elizabeth Dickerson. Fay was has done. John’s contribution to the have two children as well. Another the John Deere dealer in Hart County civic and professional world is hard boy and a girl - Will and Madison. and there are still stories out there of to grasp, especially when we consider Of course, there is the third son that I a young Dickerson boy - probably too the eclectic nature of it. He has been know the best of all and that’s his son young to drive - delivering one of the instrumental in the Mountain Circuit David who practices with the firm of John Deere tractors out to the farms Bar and he has been the past chair of Whelchel Dunlap in Gainesville fol- of the tractor customers. No low boy the administrative board of the First lowing in his daddy’s footsteps by trailer here. John Dickerson would United Methodist Church of Toccoa. doing a lot of medical malpractice simply jump on the John Deere tractor That’s another common denominator defense work. He and his wife Misty and drive it on the public roads out to between me and John - we are both have two daughters, Emily and Ans- the farms. The rumor is that is how he Methodists. John was president of the ley Grace. In talking to David about got his unparalleled knowledge of the City Attorneys’ section of the Georgia his dad he said: “Now that all us boys Rules of the Road which he trots out Municipal Association and served a have children, we can fully appreciate to his client’s advantage oftentimes. hitch as a member of the disciplinary how our daddy never missed a ten- Also, it was in the hard scrabble ter- board of the State Bar. He has been nis match, a track meet or a baseball rain of Hart County that he fell in a director of the Georgia Chamber of game. Now I know how daddy did love with Paula Merat. They became Commerce; he has been a past chair- it. He would go to that office at 5:00 in sweethearts in junior high and high man of the parents’ council at Pres- the morning and stay as late it took in school and eventually because of some byterian College; he has been on the order to be there for us and our events. unremembered coercion he convinced statewide Judicial Evaluation Com- I know now how he did it. We all had Paula to become his wife. It’s often mittee; and he has received the Chief sports heroes when we came up and said that behind every successful man Justice Thomas O. Marshal profes- we realized early on - the three boys there is an astonished mother-in-law sionalism award as well as the Robert - that we’d never be sports figures and Paula’s mother, Mrs. Merat, was B. Struble professional award. He is a so our hero vision changed from the no exception – that’s a joke; she loved member of the Old War Horse Club; Bobby Hurleys and the other Duke him. Johnny went off to Clemson Uni- he is recognized as a Georgia Super basketball players to our own dad versity across the river in South Caro- Lawyer; he is an Eagle Scout; he served who was right there in our house.” lina and there he achieved everything as past president of the Toccoa Little For the past 28 years John has been that an undergraduate could possibly League; and he has been elected into working with his main paralegal Dar- achieve. He was president of the stu- membership of the American College lene Cordell who is indispensable to dent senate, he was president of Blue of Trial Lawyers – pretty heady stuff John. What does that say - 28 years in Key, he was president of his fraternity for an old tractor delivery boy. We up the pressure cooker of litigation prac- - but let’s face it - it was just Clemson. here in the Mountain Circuit are very tice? Darlene’s only comment was, He overcame the impediment of hav- proud of him. “We know how to take care of each ing attended Clemson and sought I’ve never heard anybody say a bad other, but he tells me he’s way too de- redemption at the Lumpkin School word about John Dickerson and I’ve pendent on me.” of Law at the University of Georgia never heard one person utter a word I solicited some comments from our where miraculously his achievements of envy or jealousy about him. What two Superior Court judges who are continued. But, alas, he remained a a thing that can be said about a man active right now by saying, “Look I’m Clemson Tiger who bleeds orange. in this day and time. I can say this to gonna talk about John, how about giv-

6 ing me a comment or two?” Of course, blame opposing counsel no matter a really good man. From a personal knowing my irreverence, they both how difficult they may be. With John standpoint, when I thought about that figured they’d better say something there are no contentious discovery or which impresses me most about John pretty nice. Judge Chan Caudell: scheduling disputes; I’ve never seen Dickerson, over and above the things “Every encounter I’ve had with John him become angry; he is courteous I’ve already told you about him, one Dickerson in the almost 25 years I’ve and kind to everyone. He also takes character trait came to mind and that known him have been memorable. every opportunity to contribute to the is the respect and deference he gives The experience is memorable because profession and to our community.” the other litigants in the case and not of John’s remarkable command of the According to Robert Struble, John’s just the lawyers. John projects the facts and law that apply to the dis- former partner who later became a feeling that while there may be dif- pute. That talent combined with his Superior Court Judge in 1982, when ferences of opinion about the facts of ability to recognize the strengths and he told John he was going to accept the case, he is ever mindful that he willingness to concede the weakness- the appointment to the Superior is often dealing with a human being es of his case make him an example I Court bench John expressed concern who has suffered great tragedy and wish all young lawyers could model in his own abilities, worried that he loss. Even though he never compro- themselves after.” These are the com- was too young and too inexperienced, mises his client’s position, he treats ments from Superior Court Judge and was afraid he couldn’t handle all other people with such courtesy and Rusty Smith: “John is the consum- the litigation on his own. The Judge dignity that the process is more toler- mate professional. He is one of the replied “John, if you weren’t ready, I able for everyone involved. And, some lawyers that you think of if you read wouldn’t be leaving this firm.” Boy, of you lawyers know what I am talk- the State Bar’s aspirational statement was he ready! ing about - it makes my job a lot easier on professionalism. From a judge’s I leave you with this: as an observer dealing with my own clients and for standpoint, John is a problem-solver. of the State Bar of Georgia for all these that, John, I am eternally grateful. In every conference we have ever many years, I could name no person He is a man who has a heart and un- had he always says ‘Judge, let’s make who has such a combination of en- derstands that you can use that heart this easy’ and he proposes an immi- ergy, dignity, grace, professionalism without compromising your position nently fair solution that everyone else and competence as John Dickerson. in any way. I am proud to be a friend has overlooked. I’ve never seen him He’s a good citizen, a good husband, of John Dickerson. waste one second of time looking to a good father, a good colleague and

Remarks by John A. Dickerson

Thank you, Dennis. I am humbled and honored in-law, and six grandchildren. My wife and espe- to be the recipient of this award. I know and/or cially the children as they were growing up were have worked with the vast majority of lawyers tolerant and understanding of the demands of the who are past recipients of this award. To be on trial practice. Time and time again my wife has the same page with these extraordinary members had to put up with me waking up in the middle of of the Bar is mind-numbing. the morning during a trial week struggling to find Deputy Attorney General Sally Yates recently out how to deal with a particular piece of evidence. reminded us of our responsibility at a recent com- She knew when to be circumspect when I lost a big mencement address when she said, “Whether it’s case. She knew that the end of a long trial didn’t resolving a civil dispute, or ensuring that an indi- mean a night on the town, but rather meant falling vidual criminally accused is afforded his rights or asleep in the chair during the evening news. is fairly prosecuted citizens of our country can’t Even though my name will be on the list and obtain justice without lawyers.” my name is engraved on this plaque, none of this Justice in our world requires lawyers. would have been possible without Paula’s support I would be remiss if I did not recognize my wife win or lose. Thank you, Paula. Thank you, Alan, and my family. I have three sons, three daughters- Cory, and David, and thank all of you.

7 GENERAL PRACTICE John W. Timmons

Introduced by Jennifer Riley

The County Seat Lawyer:

“He resolved problems by what he called ‘first principles.’ He did not specialize, nor did he pick and choose clients. He rarely declined service to worthy ones because of inability to pay…He never quit. He could think of motions for every purpose under the sun, and he made them all. He moved for new trials, he appealed; and if he lost out in the end, he joined the client at the tavern in damning the judge – which is the last rite in closing an unsuccessful case... The law to him was like a religion, and its practice was more than a means of support; it was a mission.” The Honorable Robert H. Jackson, 36 A.B.A. J. 497 (1950).

I am so pleased to be here with of every recipient from 2001 to the you this morning and to have the present, and what I learned is this: honor and the privilege to intro- The awards that are being given out duce, my step-father and a man this morning are a very big deal. who truly personifies Justice Jack- They require: son’s County Seat Lawyer: John • a minimum of 20 years of out- Timmons, this year’s recipient of standing achievement as a lawyer, the Tradition of Excellence Award • a significant contribution to con- in General Practice. tinuing legal education and the In preparation for this speech, Georgia Bar, I realized I needed to learn some- • a record of community service, thing about the award John is re- and ceiving. I read every introduction

8 • a personal commitment to excel- tary School patrolman responsible quite busy…). lence. for controlling the traffic light at the John has been lead counsel in over The past recipients are a who’s who intersection of Peachtree and Pied- 200 jury trials and has tried cases in of Georgia lawyers: Judge Griffin mont. This made him a very impor- more than twenty counties in Geor- Bell, Chief Justice Norman Fletcher, tant person – even back in those, qui- gia and the Middle and Northern Justice George Carley, Frank Jones, eter days. Federal Districts. He has been the John Marshall, Buddy Darden, Cathy John relocated up North - to Char- recipient of many awards and acco- Cox. The list is long. lottesville - to attend undergrad at the lades. In addition to this prestigious There are currently 45,000 mem- University of Virginia on a full aca- award, John was selected by his peers bers of the Georgia State Bar – give demic scholarship. He came home to as one of Georgia’s Top Lawyers for or take a few. There were four people Georgia in 1967 to attend law school criminal law in 2014. selected for the Tradition of Excel- at the University of Georgia. John has also served in a number lence award in 2016. I am a lawyer, While he had many scholarly of leadership positions in the legal not a mathematician, but that puts achievements at the University of community: • this year’s recipients in a very elite Georgia, John seems to be most He is the past chairman and trustee for the General Practice and Trial group. proud of the organization he found- Section of the State Bar of Georgia, In 2004, during an introduction of ed while at UGA: The University of his brother (John C. Bell, Jr.) for the Georgia Rugby Football Club. He • A trustee for the Institute of Tradition in Excellence Award for the was its first president and is an hon- Continuing Legal Education in Plaintiff’s Bar, David Bell said that orary life member. Also, for years, Georgia, there are three questions you should he got free beer at the Landsdowne • A fellow of the Lawyers Founda- ask in assessing a recipient for the Road Pub. John has always understood tion of Georgia, Tradition in Excellence award: the importance of finding the fun in the • The past president of the Western serious. Circuit Bar Association, and “Is the profession better?” John graduated from Law School • The past president of the Marine “Have you helped people?” in 1970 and after taking the Bar Corps Association of Georgia Exam, John went on active duty. He “Does the community benefit from what Lawyers. earned a commission in the United you did?” States Marine Corps as a Captain, at- I could go on and on. Considering these questions, no tending the Basic School at Quantico In 1998, I got to experience, first- one is more deserving than John: and then the Naval Justice School hand, John’s passion, commitment • He has bettered the profession at Newport, where he qualified as a to his clients and unflagging integ- through his unflagging commit- judge advocate. He was assigned to ment to integrity and passionate rity when I clerked for him during the Third Marine Division on Oki- advocacy on behalf of his clients, the summer between my first and nawa, where he served as prosecutor irrespective of their circumstances second years of law school. John al- and defense counsel trying numer- or place in the world, lowed me to tag along when he went ous general and special courts-mar- to court and met with his clients, and • He has not turned away clients be- tial. I observed as he worked through the cause they cannot pay or because John returned to civilian life in details of a case and spent endless their causes – or they – are not pop- 1973, locating in Athens where he hours in preparation for a hearing or ular, and continued his role in public service as an important meeting. the assistant director of the Legal Aid • The community as a whole has That summer, I learned an incred- and Defender Society at the Univer- been the beneficiary of his tireless ible amount about the ins and outs sity of Georgia School of Law (which, dedication to public service – from of what it takes to be a successful, at that time, he tells me, served as the his service in the Marines to his practicing lawyer. But, I also learned public defender’s office). service to the Bar. something perhaps more important In 1976, John entered private prac- - a lesson that I think is universal John grew up in Atlanta on East tice in Athens – and he has been an whether you are a solo practitioner, Andrews - a formerly sleepy street inspiring member of the legal profes- a lawyer in a big firm, or are working whose homes, which once housed sion and Athens Bar for the past 40 as in-house counsel, like me. The law families, today house shops and res- years. Over those years, he has rep- is hard work. It’s a commitment. It is taurants. resented every type of client, in ev- not always going to be fun, and it is He played in the fields that now ery type of case from capital murder rarely – very rarely – ever glamorous. lay beneath Lenox Mall and in the7th to underage possession (which you grade, was the RL Hope Elemen- can imagine, in Athens, can keep you continued on next page

9 Introduction for John Timmons continued from previous page

It’s often late nights, a slog of details There are few accomplishments • his son, Cullen, who lives in and deadlines, and demanding cli- greater than inspiring others and Nashville, Tennessee and is in a ents. And, if you want to succeed helping them grow. surgery residency at Vanderbilt and still be standing - and smiling - But, of course, as the rugby story University. 40 years into your career, you have to foreshadowed, there is more to John At the beginning of this introduc- approach it with passion, continuous than just a luminous legal career, tion, I quoted David Bell and repeat- curiosity, and the enthusiasm of a an ability to inspire and a beautiful ed the questions he posed twelve first-year law student. That, I think, wife. He is truly a Renaissance man. years ago: is why John is here today – he has a • He is an aspiring artist. The UGA “Is the profession better?” John has passion, curiosity and enthusiasm Museum of Art displayed his led and inspired others through his for his work and his clients that is hand-painted toy soldier collection example - enthusiasm for the law, in- truly remarkable and inspiring. in 2014 – a collection that brings tegrity, and passionate advocacy. Watching him inspired me and together his love of history and his may very well be why I am here to- latent artistic streak. “Have you helped people?” John has day. And, I am not the only one. In • He is a voracious reader and a refused to turn people away – no preparing for this speech, my mom tremendous history buff . matter their cause or their personal circumstances. told me about an email John received • He is an avid gardener. He is from an attendee at a professional- currently experimenting with “Does the community benefit from ism CLE at which John spoke. The growing arugula, little gem, and what you did?” John has been a tire- lawyer wrote: mesclun. He clearly recognized less public servant -- from his early “I have felt somewhat before the rest of us that kale is service in the Marine Corps to his disconnected from the profession going out of style… work as a public defender before en- lately given my hours, • He is also a hunter and a sportsman, tering private practice. and until 2009, he was still playing commute, personal life, etc. I “The law to him was like a religion, rugby from time-to-time with the just wanted to say thank you for and its practice was more than a your talk on professionalism. It UGA Old Boys side of The Blind Pigs Rugby Sporting Club. means of support; it was a mission.” has inspired me and reminded Ladies & Gentlemen, I am sure you me why I chose to become an He is also devoted to his wife of will agree that, while the world of attorney in the first place. I twenty-one years (my mother) and rugby may have lost a star, the world plan to take a more active role in his children and grandchildren who of law gained a great legal mind and the profession and to get more could not be here today: dedicated public servant. involved again as I was when • Courtney, her husband, Tim, their It is with great pride that I give you I first became an attorney. I daughters, Olivia & Delancy who John Timmons. did not get a chance to talk to live in Oklahoma City, you after the presentation, but • his daughter, Cate, her husband, I wanted to let you know that Ben, their son Mylan & daughter your words helped reinvigorate Reyn, who live in Rome, Georgia, my passion for our profession.” and

10 Remarks by John W. Timmons

I am really humbled beyond words to be here cases. Aren’t the relationships with other lawyers accepting this award this morning. I am awed to the true treasure we amass in our professional be in the company of the fellow recipients. John lives? I have had so many mentors who became Dickerson and I have practiced in overlapping good friends, and all of whom lifted me up and geographic areas most of our careers, but pulled me along. unfortunately have not had much personal Dean Cowan had convinced the big Atlanta interaction, but I have known his reputation for firms to hire Georgia students, at least as summer decades I knew Bill Stone when he was a law interns. So I spent the summer of ’69 at Kilpatrick, student, and could tell he was going to be an Cody, Rogers, McClatchey & Regenstein, with all outstanding lawyer from the beginning. They of the then named partners still practicing. There still talk about his exploits as a student lawyer I was exposed to outstanding attorneys: Gus working with the Solicitor’s Office in the State Cleveland, the real Father of Continuing Legal Court, Judge Murphy, we never had the pleasure, Education in Georgia, as well as ICLE, was a but I know your reputation from Bill Lundy, partner, and a true gentleman. I also got to know Wright Gammon, and the West Georgia lawyers and learn from the examples of Emmet Bondurant who have practiced with you for years. and Matt Patton, two Tradition of Excellence From my side, I have no log cabin story. I recipients. Another mentor there, Phil Heiner, enjoyed a somewhat sheltered life growing up in would have been one had we not lost him way post-war Atlanta. It did not take courage to direct too soon. traffic, even as a th7 grader in 1958. We had good My first real job as a lawyer involved strictly schools, excellent teachers, and an innocence criminal law, but with a portfolio of about 45 which probably does not exist anymore. cases split between prosecution and defense. By sheer luck I was able to attend UVA, and This experience reinforced the importance of that experience opened the world for me. When Relationships, as I was able to build them within I was a senior in college, I had to make a choice. the law enforcement community while working Law school was enticing, but there was still the for the government, and use the relationships to military to take into account. John Greenfield, a clients’ advantage while on the defense. distinguished Atlanta lawyer now, but a combat Upon discharge from active duty, I took a job Marine then, put me onto the USMC Platoon with my most influential mentor, Colonel Robert Leaders Course-Law, where I might become a Peckham. The Legal Aid & Defender Society was JAG officer. So the summer before I started law a teaching clinic at UGA School of Law, and Bob school, I spent 6 weeks at OCS at Quantico. My Peckham was simply outstanding. A female juror law school photo ( mugshot? why did they take once opined, “If Bob Peckham told me the moon those?) shows Candidate Timmons, with almost was made of green cheese, I’d believe him.” I was shaved head. at his side for three and a half years, and he became When I began at UGA Law, it was a time of an uncle figure to me. We had fun defending the excitement. I recall it as a time when “Giants poor and downtrodden. Legal Aid also provided walked the Earth” The faculty included Perry the beginning of decades or relationships with Sentell, Dean Lindsey Cowan, Verner Chaffin, law students who worked with me during their Col. Jack Murray, Bob Leavell, and Kirby time in law school during those years and during Turnage—to name a few. As I reflect on a theme private practice. The enthusiasm of youth all of of RELATIONSHIPS and building them, let me these years has been a great inspiration. I am sure mention Kirby particularly who I knew as a I learned more from them than they did from me. professor first, colleague and worthy opponent, The Legal Aid clientele was not always and valued friend. We can all reflect on how agreeable, but it was always colorful. And, since many of our friends we first met as opponent in continued on next page

11 Remarks by John W. Timmons continued from previous page

some of them had lifetimes of experience in the Gaines was the mentor who emphasized the criminal justice system, they had strong opinions adage that there is dignity in every form of work. regarding legal tactics and strategy. On more Colonel Peckham made it a point to attend the than a few occasions, I heard the Colonel hold State Bar’s Annual Meeting, and I got into the forth with one of his famous “Peckhamisms”: habit. One thing leads to another, and, through “Why don’t we play a game for a few minutes, opportunity given me by Congressman John Mr. Foote? Let’s pretend I’m the lawyer and Barrow (Judge Barrow’s son), I landed a spot on you’re the client.” the General Practice and Trial Section Board in After seven years of Marine Corps and Legal the middle 90’s. I was exposed to outstanding Aid, it was time to try my hand at private practice. lawyers from throughout the state, who just give Denny Galis, demonstrating exceptional patience so much back to the profession. I had not really and forbearance, gave me the opportunity, and participated in a Section before, and observing he and Peggy have been life-long friends. This the GPTS operate, with a steady succession of was the first time I actually had to discuss fees outstanding lawyers from all over the state, with clients. Of course I wanted to do everything, and with Betty Simms providing excellent although I was best experienced for trial work. administrative continuity, I began developing But, I just had to do some real estate, I thought. So a loyalty to the Section and to these colleagues, I handled a closing for the XO (Executive Officer) many of whom have become dear friends. By of the Navy Supply Corps School in Athens. mentioning any I will omit others who also The closing went well, and I was a star. Until, deserve credit, so indulge me if I give a moment upon closer examination, after the closing when to remember Rudolph Patterson, who was an everyone important had gone home, I realized I absolute mainstay of the GPTS Board. After he had failed to compute any attorney fees into the became President of the State Bar, and had some settlement equations. I quickly confronted the “patronage” power, he asked us if there were cold hard fact that I could not make a living as a other places where we would like to serve the real estate attorney. Fortunately, I have been gifted Bar. Rudy linked me with the ICLE Board at my with colleagues and partners who are outstanding request, and that has become my favorite bar in that area. If anyone should be up here today activity since 2002. for General Practice, it would be my partner Jim If anything, being around the GPTS Board Warnes, who has literally done everything, and and the ICLE Board has been humbling. Yet done it well. both activities have been inspirations in that I’ve Practicing in Athens and Northeast Georgia enjoyed relationships with some of Georgia’s has been another great blessing. I “grew up” finest lawyers. practicing before two outstanding judges, Jim Finally, and not the least, what can I say about Barrow and Joe Gaines. They set a high standard, my life’s true love and inspiration, Barbara. She but also set such a tone of civility that we proudly is my absolute touchstone without whom I would say the legal culture in the Western Circuit is very not function or thrive. Anyone who knows me collegial and fair minded. Lawyers from outside and Barbara says I married way above my pay the circuit often make that observation. Whether grade. I can never dispute that. She has made trying a case or just presenting a motion to Judge my last twenty-three years absolutely wonderful. Barrow, you just wanted to do your best and be She has been patient and tolerant beyond on your toes. If I could find some obscure English understanding, and I had better leave it at that. statute in the basement of the Law School, and She is thinking “It’s time to get the hook!” so I weave it into a constitutional argument, that was had better sit down. Thank you all, so very much. icing on the cake. Everyone in those courtrooms I am truly honored to receive this award, and was treated with tact and dignity. Indeed, Joe totally humbled.

12 JUDICIAL Judge Michael L. Murphy

Introduced by Bill Lundy & Karen Wilkes

Bill Lundy It is both my privilege and honor years in private practice in Bremen, to introduce as the General Practice Georgia, representing regular people and Trial Section’s Judge of the year every day in court and helping peo- our very own judge Michael Mur- ple through difficult times. phy of the Tallapoosa judicial circuit. Perhaps very importantly before Judge Murphy has lived in our taking the bench, he understands circuit his entire life. He is a proud what it means to make a payroll and Haralson county man from way operate a law practice. Before taking back. He is from a family that has the bench he experienced the high always believed in serving the com- highs and low lows of winning and munity. His father was the longest losing cases. That is no small thing serving speaker of the house of rep- and it has always informed him resentatives, speaker Tom Murphy. when deciding cases. It was from him that judge Murphy Judge Murphy inspires confi- learned so many valuable lessons of dence in the judiciary with his rul- life and applied them to his tenure ings and patience. He has always as our judge. understood that a superior court Judge Murphy possesses every judge is a “rubber meets the road” quality a judge should possess. Pa- position and represents the only di- tience, honesty, a strong sense of rect contact some people ever have justice and right and wrong, intel- with the judicial system. He wants it lect, thoughtfulness and a presence always to be an experience that in- that commands respect from both spires confidence and fairness, and attorneys and those that appear in he is a very fair judge to all that ap- his court. pear in his court. Judge Murphy has always under- Judge Murphy has presided over stood the tremendous responsibility many jury trials with every pressure he faces daily to sit in judgment over it brings to the parties and attorneys our citizens. He perhaps is better and juries. He is always a steady suited than many, as he came to the hand of assurance and we all look to position of superior court judge later in life. Judge Murphy spent many continued on next page

13 Judge Murphy Introduction by Bill Lundy continued from previous page

him for leadership in the courtroom and now our judge. ily. It is not easy to be the judge and and he delivers it, always. We bestow this honor on those that be a good father and husband, but he Judge Murphy loves the Geor- have maintained a tradition of excel- has always worn every hat well. He gia bulldogs, and he tried to be one lence. Judge Murphy has served us has a terrific sense of humor as well many years ago on the football field. so well. I recognize we are in a small as justice. Judge was a very talented athlete in circuit and that many may not know I am privileged to introduce him. high school, but discovered pretty him or have appeared in his court, It is one of the honors I will always quickly how difficult the college but if you ever do, you will know ex- count highest in my life. I present to football world can be for a 5’9” walk actly what I am talking about. you our 2016 tradition of excellence on player! Thank God he stayed and Judge Murphy has always kept a honoree, the Honorable Michael L. graduated and became an attorney balance in his life and with his fam- Murphy.

Karen Wilkes I am Karen Wilkes and I am the won this.” He has certainly met these defense. Then when the state wide Chief Assistant Public Defender for high standards of excellence. Many public defender agency was created, the Tallapoosa Judicial Circuit. And, times over. I guess they must have I joined them. I have been a public for those of you who may not know been waiting for him to turn 50. defender in Rome and in Hartwell, what that is, the Tallapoosa Circuit When I found out that Judge Mur- and I have been a conflict defender consists of two counties, Polk and phy wanted me to introduce him at going to various counties across Haralson. And, for those of you who the awards presentation here today, northwest and west central Georgia may not know where that is, we are I felt like I had won an award. And handling cases where the public de- due West of Atlanta as far as you can the more I thought about it, the more fender had a conflict. And now I am go before you get to Alabama. it became apparent to me that I have with the Tallapoosa Circuit. I am here this morning to introduce indeed won an award. So, I have been to lots of counties this year’s judicial recipient of the Not just because I get to be here at and tried lots of cases in lots of court- Tradition of Excellence award, given this lovely resort, at the beach, on a rooms in front of lots of judges. And by the General Practice section of the work day. Not just because I get to I have seen the differences between State Bar of Georgia. The Honorable stand here and talk, which anyone them. I have seen judges who worry Michael L. Murphy, Chief Judge of who knows me knows I love to do. more about their dockets than the the Tallapoosa Circuit. And not just because I get to be part people on them. Who, whether inten- The Tradition of Excellence Award of and bear witness to this honor be- tionally or not, intimidate the parties, is given each year to four outstand- ing bestowed on Judge Murphy and the lawyers, the witnesses, the court ing members of the Bar – one Plain- to see him receive this well deserved staff, and even the jurors. Who seem tiff lawyer, one Defense lawyer, one recognition and the commendation to have forgotten that these are real General Practice lawyer, and one of his peers, colleagues and other people in front of them, with every- Judge. They are nominated and cho- members of the Bar. thing on the line – their families, their sen on the grounds of outstanding All of that is wonderful. But, I have jobs, their homes, their children, their legal and personal characteristics. an even greater prize. I get to try cas- education, their incomes, their fu- They must have 20 years of out- es in Judge Murphy’s court. And let tures, their freedom. And it may be ef- standing achievement as a lawyer or me tell you why that’s so special. ficient to forget these things. Scaring judge. They must be over 50 years I’ve tried LOTS of cases. I have people may make cases go away. That old. They must have made a signifi- been practicing law for 25 years now, may shorten the hours the judge has cant contribution to CLE or Bar ac- the first half in private practice and to spend on the bench or after hours tivities. They must have a record of the second half as a public defender working on jury charges for the next community service. And they must in one form or another. And in all day. But, that is not justice. And that have a personal commitment to ex- those years I have tried almost 100 most certainly is not Judge Murphy. cellence. Judge Murphy is all these criminal cases, most of which have Don’t get me wrong. I’m not say- things. And more. been as a public defender. I started in ing Judge Murphy is a push over. He About a month ago, when I found Rome and took appointed cases from will put you in jail if you are late one out that Judge Murphy was chosen the court. Then we went to a contract more time to his court. Don’t ask me for this award, my first thought was system, and I was under contract how I know this. But, trust me, it’s “I can’t believe he hasn’t already with the county to provide indigent true. He will also call you at home at

14 6 o’clock in the morning to make sure law professor, who is now retired, couldn’t really do anything about it. you’re up so he doesn’t have to put but who taught criminal law and Not that he didn’t try. Judge Murphy you in jail again. Once again, don’t criminal procedure and legal his- coached the boy, talked to the boy, ask me how I know this. But, trust tory at UGA for 42 years. No doubt counseled the boy, counseled his par- me, it’s true. he taught many of you here, includ- ents, and worked with them as best I say all this, and maybe I’ve said ing Judge Murphy. And no doubt his he could. But, sadly, back then we too much, because it is just one of the passion for the law has had a lasting just didn’t have the resources or the thousands of ways that Judge Mur- effect on you, as it always has and access to information that we have phy has shown that you can follow continues to have on me. now. And, so, that young boy with the letter of the law and at the same From our fathers, we both learned “issues” grew up to be a young man honor the spirit of the law. You can of the majesty of the law and we both with “issues.” He had run-ins with be tough and at the same time you revere it and have dedicated our pro- the law. And he is now in a state men- can inspire. And Judge Murphy does fessional lives to it. We also learned tal hospital in Alabama. But, through this. Because to him, the people mat- the immense power of the law and its it all, Judge Murphy was there trying ter as much as the law. ability to change people’s lives forev- to help. And, to this day, that young When you appear in Judge Mur- er. And we were taught to never lose man still calls Judge Murphy to tell phy’s courtroom, you will be treated sight of that, of the people who are him how he’s doing, and to seek with dignity, whether you are a de- governed and affected by it. What comfort, guidance and hope for the fendant, a plaintiff, a lawyer, a wit- happens in court matters. Not only future. And Judge Murphy gives this ness, a family member, a juror, or a because our laws matter, but because to him. pro se party trying to navigate your the people matter. This young man had such an im- way through the process. You will get Judge Murphy has dedicated his pact on Judge Murphy that the judge to explain yourself, tell your side of life to these principles. I won’t list was determined to do something that the story, argue your case, argue the every example, every time he has would make a difference for all the law, and express your concerns, your stayed late at the office waiting for young men like this with “issues.” hopes and your fears. And when you lawyers to bring him orders to sign, So, Judge Murphy decided to start a leave, no matter what the outcome, making sure that nobody sits in jail Mental Health Court in our Circuit. you will know that Judge Murphy one minute longer than they should, He contacted the appropriate state heard you. And considered you. And hearing cases after hours to accom- officials, sought and obtained fund- included you. You will know that modate out of town parties, going ing, and put together a team to ac- you mattered. And that is justice. to the high school on weekends and complish this. And now, in our little I suspect that Judge Murphy after long days in court to coach their Circuit next to the Alabama line, our learned much of this growing up mock trial team. But, I will tell you little, 2 county, rural, under-served surrounded by great legal minds and about Judge Murphy’s most recent Circuit, we are taking in our first great citizens, in particular his father, achievement. And I think he consid- Mental Health Court participants. who was larger than life, the late ers it one of his best. Their lives will change, and they will great Tom Murphy, the longest serv- It started many years ago with have a chance for a better life because ing Speaker of the House of the Geor- a young boy who Judge Murphy Judge Murphy cared enough to make gia legislature, and indeed of any coached in little league. This young it happen. Just another example of state legislature. From what Judge boy had “issues.” Of course, back the excellence of Judge Murphy. Murphy has told me, his father loved then, 30 or 40 years ago, we didn’t And with that, let me now intro- the law, loved its rich history, and know what we know now about duce you to the Honorable Michael loved its ability to help the people he mental illness, the warning signs, L. Murphy, Chief Judge of the Tal- served. the symptoms, the causes or the lapoosa Circuit, and this year’s re- This is something Judge Murphy treatment. So, we just said that boys cipient of the Tradition of Excellence and I have in common, as I too was like him had “issues.” This both- Award. raised by great legal minds, in par- ered Judge Murphy because he rec- ticular my father, Eugene Wilkes, the ognized something was wrong, but

15 Remarks by Judge Michael L. Murphy

Wow, with that introduction, I am compelled I try… every day…to be the same kind of profes- to revise my remarks… “I am here today to an- sional & family man he was, I know I will never nounce my candidacy for Governor of the State have the positive impact on the lives of my fam- of Georgia…if I can only find my hair piece & ily, my colleagues, or the people of this state that lose a hundred pounds….” my father did…though our personalities were I thank Bill Lundy & Karen Wilkes for their in- different & he was shrewder & smarter than me, credibly generous & kind remarks… truth is, like I share & hold sacred the same fundamental val- Ulysses Grant, there is no apparent good reason ues about life & how to treat people he did. And that I should receive any recognition… in law my wonderful wife, Carol Meadows Murphy , a school, I adhered more to the notions of Twain 1966 graduate of Druid Hills High School…a “city & Louis Lamour: “Don’t let schooling interfere girl”, who chose to marry this “country boy” & with your education” & “all education ain’t aca- endured a lot after she became a “Murphy”…for demic”… 46 years she has been my “rock” and “my stead- I accept the “Tradition of Excellence Award” fast ally” …she is the greatest and most profound with a profound sense of “deep humility” and blessing the Good Lord has bestowed upon me … “awe”….”deep humility” in the weight of those and my precious, daughter, Lauren Ray, who was past-recipients who have stood here before me; supposed to be a boy, but think-goodness, was a “awe” that you have concluded me worthy to be girl, but not just any girl…an athlete, scholar, and included among the “noble ranks of previous re- very successful professional, she is, more impor- cipients”…Ranks which include my father, Tom tantly, a wonderful mother in her own right…. Murphy, & many judges he & I knew personally, Carol & Lauren have “hearts of gold” and would each one of whom was possessed of above-average give you the shirt off their backs …both are en- “intelligence”, “experience”, and “know-how”… dowed with compassion and understanding of more importantly, each was blessed & endowed their fellow man and are blessed with fabulous by their Creator with a “well-developed-and-way- interpersonal skills that allowed them to make above-average-and-indefinable-sense of humor” something “good” maybe, out of a hard-head like …they were judges who understood how hard it me…I love the both of you so much…and, finally, was, & is, to “practice” law the right way… judges she and my wonderful son-in-law, Todd Ray, a whose sensibilities, abilities, & knowledge of life very capable person who is not only a very fine & the law prompted them to make the practice of man & wonderful father, have given Carol & I an law “fun”, & not mere “drudgery”… judges who exceptional grandson & grand-daughter, Thomas were not tyrants or bullies, who understood that & Murphy Ray who are the lights of our life. good lawyers don’t have to be goaded, pushed, When Ms Sims notified me of my selection insulted, harassed, or even prompted into taking to receive this award, I thought, “oh my good- care of their business… judges who were smart ness” because I don’t believe in mistakes...rather, & capable, yet possessed of a magical sense of I believe that “life is what it is” & all you need humor which set them apart from their contem- do is to look into the mirror to understand why poraries & drew them to your attention… I pay things turn out like they do… “choices” and tribute especially to my beloved father, Thomas “consequences”…that’s all it is… nothing more, B. Murphy, who, though he might have served nothing less …and then I ruminated on another on the Supreme Court, chose to spend his career, of Twain’s observations… ”It is better to deserve instead, in the Ga General Assembly as a “light- honors, & not have them, than to have them & ning rod” …helping protect the citizenry of our not deserve them“… so “thank you” for giving state for 42 years and who was my mentor in life, me the benefit of the doubt. and always will be, my role model….and though This recognition means “a lot” to me, more

16 than you can imagine…I will spend the remainder one you meet as if they were going to be dead by of my career trying to “justify” or “live-up-to” this midnight. Extend to them all the care, kindness recognition … I grew up in the shadows of my and understanding you can muster, and do it with wonderful father, a giant in Georgia history. “Try- no thought of any reward. Your life will never be ing to live up to his expectations for me” made the same again.” me a far better person than I would have been And I offer this prayer for all of us… otherwise…so I pledge to you, henceforth, that “God of grace & God of glory, Fears & I will never, willfully, dishonor your confidence doubts too long have bound us; shame our in me nor embarrass nor bring shame upon you wanton, selfish gladness, rich in things & for your selection of me to receive this recogni- poor in soul; On Thy people pour Thy power; tion… henceforth, with God’s blessing, I will do Free our hearts to faith and praise, That we fail my utmost to insure that no-one will ever be able neither man nor thee!” to mock “your” decision or criticize me as unde- Thank each of you for whatever role you played serving… in the honor you have bestowed on me and my In closing, I urge you to take to heart the advice family here today… God Speed and God Bless of Og Mandino… ”Beginning today, treat every- each of you in all that you do…

Help our Section grow... sign up a new member today!

17 PLAINTIFF William S. Stone

Introduced by Jim Butler

When I was a younger man one we got divorced together. of my early mentors taught me a Bill is 5 for 5 in the kids depart- valuable lesson. He had more close ment: that is very difficult to do friends that anyone I’d ever known. under any circumstances. Count- Guys who’d take a bullet for him. I ing his childrens’ excellent choices was intrigued. for spouses, he is 9 for 9. Remark- I learned why: if you were a able. He has been a superb father, friend of this man and said to him “I and now has his first grandchild, a need you to do something for me,” grandson, Jack – a gift from Lauren his response was always the same: & Ryals. “I’ll do it; what is it?” Not the other I have seen close-up and first-hand way around. what he has done for his family, his Such men are rare. community, his friends, his clients, It took me 20 years to figure out for all the lawyers who asked him the corollary to his policy: he knew for help or insights, for the bar, for that no friend of his would ask him the judiciary, and for the Civil Jus- to do something that he could not or tice System. should not do. But that realization Bill’s service to the organized bar did not diminish the impressiveness has been immense and spans de- of his habitual response. cades. He is a past President of the Bill Stone is that kind of man. Georgia Trial Lawyers’ Association For 35 years – starting in 1981 in – but that does not do justice to his the Jones v. State Farm appellate service to that organization. He has wars – Bill and I have worked shoul- been a leader of “GTLA” for more der to shoulder. In law cases, in pol- than three decades, making contri- itics, in raising children. We liter- butions to a degree of which most ally had our children together – our are unaware. firstborns, both boys, were born 3 For decades now Bill has been a months apart; his daughter and my leader in a group that has fought the first daughter the same month; his court-packing schemes of the tort twin boys and my youngest daugh- deformers. He has had a hand in ter 3 months apart. He kept going, writing many Georgia statutes. and added a fifth. Our kids grew Most of what he has done for the up together; we travelled together; Civil Justice System is known to but

18 a handful, because he did not do it for Adam Malone has called Bill “a ge- ber of the Board of Governors of “credit,” for commendation, for pub- nius for the cause of justice.” Amen. the American Association for Jus- lic adulation, or for personal gain. In Bill Stone is that kind of man. tice (AAJ) and serves as Co-Chair of fact those mammoth efforts over de- Paul Painter, Jr. truly a Great Amer- the AAJ Ethics Committee. Bill has cades cost Bill a lot, in time, distrac- ican, first got to know Bill when they served on a variety of committees tion from law practice and family, served as the first Co-Chairs of the for the State Bar of Georgia. He is an and in money. State Bar’s Professionalism Commit- active member of the Board of Gov- He did those those things because tee. Paul wrote: ernors of the Attorneys Information they were the right things to do. That “He quickly gained my respect Exchange Group (AIEG). Bill has is the true mark of character. It is the for his professional approach to, and served on the Georgia Judicial Nomi- stuff upon which nations are built, love of, the practice of law. nating Commission. and the Civil Justice System depends. “We later were litigation For literally decades Bill has been C.S. Lewis said “Integrity is doing adversaries, and I can attest he’s a frequent lecturer at legal continu- the right thing even when no one is a helluva trial lawyer—smart, ing education seminars, and has pub- watching.” Bill Stone is that kind of creative, well-prepared, solid in lished many articles. man. every respect. In all of my dealings Despite all that, I have it on good There are not enough such men – with him, he has been a fine authority that Bill is still a young as Mark Twain attested when he said gentleman.” man – he has not yet reached that “do the right thing – it will gratify stage of life when he’d “rather have some people and astonish the rest.” Bill can be a tough adversary. a talking frog.” That it took this long for this award Many years ago Bill’s client was be- Humans’ perceptions are an odd to be bestowed on Bill is astounding, ing deposed in Bill’s Blakely office thing. Oftentimes what we think we and a bit embarrassing. But then, too by a lawyer from Albany. The de- ‘see’ is determined as much by what’s few really knew his body of work. position was contentious. During a behind the eyes as by what’s in front I have said for decades that Bill was break, said lawyer followed Bill from of them. Bill Stone sees things clearly, the best law-man I knew. By that I the conference room to Bill’s office. and objectively. He is a man of wise meant and mean that he has superb Said he “Bill, it’s obvious you don’t observations, such as: like me, and I’d like to ask why,” Said insights into what the law is, and “No man is entirely worthless; he Bill, “that’s an honest question that should be. He is an indefatigable re- can always serve as a bad example.” searcher, ponderer, and thinker. He deserves an honest answer. The rea- “If you’re gonna ride the train talks to himself – debating fine points son I don’t like you is because you’re & drink whiskey, you gotta have of law. And answers himself. That an [expletive deleted].” money.” does get a little spooky at times. But When the deposition resumed, the answers are usually well-framed that lawyer said “first I’d like to put “Be patient with the Young, and sensible. on the Record that during the break compassionate with the Old, and As Bill’s long-time law partner Da- Mr. Stone called me an [expletive de- tolerant of the Weak & the Wrong; vid Boone put it, “his recall, including leted], and if he does that again we’ll at some point in your life you case law decisions and dicta from 100 have to step outside and settle this will be all of these things.” like men.” To which Bill responded, plus years is not only authoritative but I present to you my friend Bill “is that a fact, [expletive deleted].” fun to hear.”” Stone, winner this year 2016 of the Not surprisingly, the lawyer did not For all these years he has worn me Tradition of Excellence Award. out. On beach trips every year when want to step outside. the kids were small and on quail That’s Bill. Don’t mess with him hunting and fishing trips, many was and you’ll get along great. the time I’d have to do this – [make Bill is a fourth generation lawyer sign] – which was my signal to him to from Blakely GA. Now his sons Ry- stop: I’d had enough law. He never als and James have joined him – the has too much law. fifth generation. Bill’s father, Low- Bill is a walking encyclopedia of rey, was Chief Superior Court Judge the law. Among plaintiffs’ lawyers in of the Pataula Circuit. Georgia, no one I know or have heard Bill is a member of the Bar of Geor- of comes close to having provided as gia and Alabama, and has handled much help and assistance, freely and cases in many states and all across voluntarily, to so many other plain- Georgia. tiffs’ lawyers. He has long been an active mem-

19 Remarks by William S. Stone Good morning. Thank you for honoring me home with an A- on our report card. We got re- with this year’s Tradition of Excellence Award. warded for A’s. Back then the price of an A was a This is both a high privilege and a humbling expe- dime. That was a lot of money then. My mother rience. Recognition by your peers is the supreme used to say “Whatever the job, great or small, do a professional person can receive. It’s like being it well or not at all”. given the Super Bowl ring. The lessons I learned about ethics were taught It is special to have this award presented by by my parents. You don’t need a course in law Trey Underwood. Many of you don’t know this, school, a continuing legal education seminar, or a but Trey’s family is originally from Blakely, and code of professional responsibility to instruct you his grandfather, Pete Underwood, taught me to on excellence. If you did not learn ethics at your fly airplanes beginning on my fifteenth birthday. Mama’s knee, there are no law school courses, Mr. Pete was quite a character and we all miss CLE programs, or rule books that will teach you. him, Trey. There is one very simple test: Whenever you are It is a privilege to share this moment with John thinking about doing something, if you wouldn’t Dickerson, John Timmons, and Judge Murphy. I want to tell your Mama about it, don’t do it. have to confess this is something I never sought, When I was a boy about 9 or 10 years old, one and never dreamed I would receive. I was abso- of my heroes was Vince Lombardi, the legend- lutely astounded when Betty Simms called to tell ary coach of the Green Bay Packers – the man for me I had been selected to receive this award. whom the Super Bowl trophy is named. Most of I especially want to thank Jim Butler, Joel Woo- my friends’ favorite NFL team was the Baltimore ten, Ed Tolley, Hugh McNatt, Mark Dehler, and Colts led by the great quarterback Johnny Unitas. the many others who supported my selection. But the Packers usually won the championship, I have been truly blessed by the opportunity to and ultimately the first 2 Super Bowls. They did be a lawyer. I have enjoyed it so much I can truly not have exceptional players, just mostly a bunch say I have never worked a day in my life. of sound journeymen players. How did they When you receive this award, it makes you step achieve excellence? Lombardi made them func- back and reflect. What is excellence? It is a word tion together as an excellent, cohesive team in we often use casually in our everyday lives. But which every player, though not individually ex- what exactly does it mean? traordinary, gave an extraordinary performance The dictionary defines excellence as “exception- on every play by doing his job and carrying out ally high merit, quality, or ability; superlative.” his assignment flawlessly as a part of a team ef- That is a lot to live up to. How do we achieve fort to reach excellence. Vince Lombardi often excellence? told the team: Throughout our lives most of us have role mod- “Gentlemen, we will chase perfection, and we els, mentors, and examples to follow. I start with will chase it relentlessly every day, knowing all my parents. My father was truly the best man I the while we can never attain it because nothing have ever known. He served as a superior court is perfect. But along the way, we will catch excel- judge for about 18 years, retiring as a chief judge lence. I’m not remotely interested in just being of the Pataula Judicial Circuit. One of his great good.” lessons that he taught me comes from the prophet Lombardi believed if you won’t settle for any- Isaiah: What does the Lord require of you but to thing less than your best, you will be amazed at do justice, to love mercy, and to walk humbly with what you can accomplish in your lives. He often your God. My mother was involved in the every- said, day teaching of right and wrong. The quality of a person’s life is in direct propor- Both my parents insisted on excellence. My tion to his commitment to excellence in his chosen brother and sister and I got in trouble if we came field of endeavor.

20 The result was a team of ordinary individuals cause courts, lawyers, and juries have held manu- executing every play on offense or defense with facturers to a proper standard of caring for their excellence that was virtually unstoppable – The customers and other people who are affected by stuff that championship teams are made of. their products. We saw a recent example in South- I want to talk to you a few minutes about what west Georgia last year. A jury in Bainbridge heard we all do as judges and lawyers, and how much the evidence that an automobile manufacturer and you as judges and lawyers mean to our society. its executives failed to use accepted safeguards to We have a Constitution that is the greatest social prevent post-crash fuel-fed fires in its Jeep Chero- compact ever devised by mankind. But it does not kee automobiles with deadly consequences. In work without you in our judicial system. a very conservative jurisdiction, a jury educated Think about it. Nearly all the great problems our Chrysler that the life of a 4-year old little boy who nation has faced were not solved by legislative or was burned to death in one of its Jeep vehicles was executive branches of government. It is the judicial worth $120 million, and the price of inflicting his system that has to roll up its sleeves and go to it. pain and suffering from such a horrible death was In 1964, when I was about 10 years old. there was $30 million. a CBS TV series called “Slattery’s People” starring Courts, lawyers, and juries exposed the tobacco Richard Crenna. It was about the struggles of a companies’ fraudulent marketing schemes and state legislator. I was always impressed by the in- imposed huge punitive damage awards when they tro voice-over played at the first of every episode: learned that the tobacco companies had been lac- Democracy is a very bad form of government, ing their products with chemicals purposely to ad- but I ask you never to forget, all the others are so dict young people to their deadly product. much worse! It is courts, lawyers, and juries who constrain the Democracy simply does not work without courts biggest of our corporate and individual citizens and lawyers. We are the safety valve of society. from taking advantage of the smallest and weakest We give people recourse to make the inequities of our citizens. So, to paraphrase the intro from and injustices that flow inevitably from our free- “Slattery’s People”, I tell you that the American dom right and fair again. And so we preserve our court and jury system may be a very bad way to democratic society by not letting it destroy itself. administer justice, but I ask you never to forget, It is the courts and courageous lawyers who step all the others are so much worse. It is that system in when legislators and executives fail to live up to that fulfills the promised right to life, liberty, and our need for equality and justice. Let me give you pursuit of happiness, and the safety and welfare a few examples: of us all. Consider the full implementation of civil rights. We must constantly be vigilant to avoid the po- Courts and lawyers did that, not legislators or liticization of our judiciary. We are blessed in this presidents. While President Kennedy is credited state to have a court system in which maybe not with proposing the Civil Rights Bill, it is no secret all, but by far and away most of our judges, are that he was lukewarm on civil rights for minori- right and fair thinking people who try their best to ties because he, like most politicians, was afraid follow the law and administer justice as God gives of a backlash that would divide the electorate and them the right to see it. There are constant stresses cost him votes. Courageous lawyers brought civil to pack courts with people who are guided by ide- rights lawsuits, and courageous judges like Frank ology, and not by justice and legal principles. That Johnson in Birmingham, Alabama, brought the must be avoided at all costs. Georgia needs to re- hard cases and made the hard rulings that ush- main Georgia, not Alabama, Texas or Mississippi. ered in a new era of civil rights for everybody, not You in this room are what makes our system just the majority. Judge Johnson had to have great of justice work. It may not be perfect, but it is courage, because Alabama was a dangerous place excellent. Through your efforts every day to make to disagree with powerful segregationists – even it more perfect, you keep it excellent, and bring it for a U.S. district judge. closer to perfection. Take automobiles and other products for ex- So, I am humbled and grateful for being added ample. They are much safer today than ever be- continued on page 38

21 2016 Tradition of Excellence Breakfast June 17, 2016 Omni Amelia Island Plantation Resort

Incoming Chair Kristine Orr Brown presents outgoing Chair Sell out crowd for the breakfast Trey Underwood with the Chairman’s Plaque

The Murphy family Jennifer Riley, John & Barbara Timmons

The Stone family Paula & John Dickerson

22 Tradition of Excellence Reception Everyone had a Great Time!

23 23 You Better Rip this Out and Put it in Your Torts Notebook

Tortious Misconduct: A narrow exception to the general rule of corporate immunity from liability for slander committed by employees Christopher C. Edwards and Erich Schultheiss

This article is an update of an earlier opprobrious language or conduct be understood as dealing with article authored solely by Christopher perpetrated by business employees. the present action as though C. Edwards and published in The The tort is not premised upon respon- it were an attempt to sue the Verdict, April 1989, republished with deat superior,6 but upon the omission company for slander committed the express permission of The Verdict. of the business/owner to protect in- by its agents. On the contrary, Christopher C. Edwards is Chief vitees from “abusive language which we merely mean to hold that a Superior Court Judge of the Griffin amounts to slander” committed by carrier is liable in damages for Judicial Circuit Superior Court. Erich the business employees.7 failure to protect a passenger Schultheiss graduated from Georgia …(T)he plaintiff’s cause rests from abusive language which State University College of Law and not on slander but on the theory amounts to slander – not as to was a 2013 Summer Law Intern with that a business invitor owes a perpetrator of the outrage itself.12 Chief Judge Edwards. He is now a public duty to protect its invitees The rule of common carrier liability member of the Georgia Bar. from abusive language and was extended by the Supreme So you think you know Georgia conduct…the misconduct may Court of Georgia to protect business tort? How about a tort called “tortious involve elements of slander but invitees of merchants. misconduct”? never heard of it? the gist of the right of recovery… It appears that the rule was That’s because tortuous misconduct is based on the right of the formulated by the Supreme is not taught in law school1 and is not invitee to be protected from any Court and followed and codified. You will not find tortuous tortious misconduct on the part extended with alacrity … in order misconduct indexed in Georgia’s of the corporation from its agents to except business invitees from leading treatise on torts.2 and employees acting within the the seemingly harsh rule that scope of their duties about their “a corporation is not liable for HISTORY AND DEFINITION master’s business.8 damages resulting from speaking OF THE TORT The words spoken need be false, malicious and defamatory Tortious misconduct is a virtually neither slanderous nor intentional words by one of its agents, even unknown narrow exception to the infliction of emotional distress, but where in uttering such words the general rule of corporate immunity may be merely “opprobrious and speaker was acting for the benefit from liability for words or conduct frightening.” 9 Unlike slander, the of the corporation and within committed by business employees words spoken need not be published the scope of his agency, unless against business invitees and even and heard by a third party, but need it affirmatively appears that the 3 customers on the phone. Georgia’s only be spoken from the employee agent was directed or authorized appellate courts have “inelegantly directly to the customer.10 by the corporation to speak the 4 5 and inexactly” or “blithely” termed The duty of extraordinary care words in question.”13 the tort “tortious misconduct” (herein owed by common carriers to protect Words amounting to slander are but “the tort”). passengers is the historic precursor one element of the tort. The action also Business invitors, including cor- of the current standard of mere requires proof of the business invitor- porations, have a public duty of or- ordinary care owed by business invitee relationship14, and proof that dinary care to protect their business invitors to business invitees. 11 the offending words were uttered by invitees from abusive, insulting, or We do not, of course, wish to a servant or employee in the course of

24 business. Acts constituting intentional in shoplifting cases. 18 In such cases, listed below, should be pleaded infliction of emotional distress,the merchant or employee need only with supporting factual allegations. assault, battery, false arrest and false prove that he “reasonably believed” Likewise, proof at trial of all the tort’s imprisonment are often involved. the person was engaged in shoplifting elements is required. Through this exception (to to avoid liability for the tort. The allegations of a complaint for the general rule of corporate Although the statute mentions only tortious misconduct should include immunity from slander claims) false arrests and false imprisonment the following: business invitees by virtue of claims, the case law extends the 1. Description of status of parties their relationship are accorded statutory defense to tortuous as business invitor and invitee. a remedy against the invitor for misconduct claims.19 However, this 2. Defendant’s public duty to the latter’s breach of its duty extension is only applicable when protect plaintiff from offensive, in failing to accord the invitee the conduct that is the basis for the insulting, opprobrious, abusive, on its premises immunity from tortious misconduct claim arises false, malicious, defamatory, opprobrious, insulting and out of a reasonable belief that the humiliating, mortifying, or abusive words from its agents customer is shoplifting. In other threatening (as appropriate) and servants employed to deal words, the statute cannot be applied words or conduct of its agent/ with the customer-invitees. if the belief is unreasonable or the employee. The breach of this duty occurs defendant’s conduct is a reaction to 3. Defendant’s employment or the instant those types of something other than shoplifting. To agency relationship to perpetrator words expressing slanderous apply the bar in these circumstances of wrongful conduct. statements which tend to would be “an overbroad reading of 4. Employee/perpetrator’s pur- humiliate, mortify, or wound the statute as well as the cases which suit of defendant’s business pur- 20 the feelings of the customer are have construed it.” The “reasonable poses within the scope of employ- uttered by the company’s agents belief” may be premised solely upon ment at time and place of acts. or servants and the liability arises the activation of an anti-shoplifting 5. Breach of public duty owed by the company’s act of omission devise.21 A police officer’s opinion, to plaintiff by defendant business to fulfill its duty.15 based on hearsay, that probable invitor to protect plaintiff from The invitor’s omission to protect cause existed to accuse or detain the said tortious misconduct. the customer need not occur on plaintiff is not admissible as evidence 6. Specific description of the business premises.16 The tort’s of the employee’s “reasonable belief,” employee/perpetrator’s acts, application has also been extended to nor may such an opinion by a police including a) time and place; b) allow liability for tortuous misconduct officer authorize a directed verdict.22 acts were willful and malicious; without the invitee’s physical presence c) intention to injure, shock, at the place of business if a reasonable PLEADING AND PRACTICE frighten and to inflict emotional relationship to the business exists Despite the advent of notice distress upon plaintiff; d) list the in the transaction. For example, pleading, tortious misconduct torts thereby committed25 (e.g., repeated, threatening, profane and should be pleaded with great care slander, assault, battery, false abusive telephone calls from a finance and specificity due to the bench and arrest, false imprisonment.) company to its customer have been bar’s unfamiliarity with the tort. 7. Cause of action is for tortious held to create an actionable claim for A cause of action is alleged misconduct under Zayre v. tortious misconduct.17 by a petition which asserts that Sharpton, 110 Ga. App. 587, 589, the plaintiff while an invitee on “The business invitor’s public 139 S.E. 2d 339 (1964) (cert. den.) the premises of another for the duty of ordinary care to protect and Fountain v. World Finance purpose of transacting business the invitee, and not respondeat Corp., 144 GA. App. 10, 240 S.E. was subjected to opprobrious, superior, is the basis of the 2d 558 (1977) (cert. den.) Cite insulting, and abusive words business invitor liability.” cases in pleadings to preclude amounting to slander by a assertion of corporate immunity clerk employed to deal with the THE STATUTORY “REASONABLE for slander. BELIEF” DEFENSE IN business invitee.23 8. Allege that breach of public SHOPLIFTING CASES Inadequate pleading of all the tort’s duty proximately caused certain Claims for accusatory slanderous elements may cause the claim to be damages to Plaintiff. statements alleging shoplifting have summarily adjudicated based on the 9. Describe damage to plaintiff. been held to be restricted by a statute general rule of corporate immunity 24 If there is no special damage, at a enacted to create a defense to false for slander. All the elements of arrest and false imprisonment claims tortious misconduct, as continued on next page

25 Tortious Misconduct: continued from previous page

minimum, allege injury to peace, b) Negligent hiring allegations. and opprobrious words or conduct happiness, injured feelings and “Thus where an invitor’s servant committed by the employee or agent humiliation. See 10 below. is the actual wrongdoer, the of the business invitor while such an 10. Review of the opinions invitor cannot escape liability employee or agent is acting within cited herein shows that general by having delegated its duty to the context of a business relationship and punitive damages are a servant proving unworthy of between the business invitor and the typically claimed. If punitive the trust, for then the company invitee or customer, whether such damages are claimed, an is liable for the act of omission in words or conduct occur on or off O.C.G.A. §51-12-5.1 basis for properly performing its duty.”27 the business premises. Whether or punitive damages must be not the plaintiff has proved tortious alleged and proved. See 6(b) and SUGGESTED JURY CHARGE misconduct by a preponderance of (c) above. Special damages may A suggested jury charge is below: the evidence is a matter solely for also be pleaded. Alternatively, you, the jury, to decide. Zayre of if general, special, or punitive The plaintiff asserts a claim for Atlanta v. Sharpton, 110 Ga. App. are unavailable, damages may money damages against defendant 587, 590, 139 S.E. 2d 339 (1964); be asserted under O.C.G.A. §51- for “tortious misconduct.” Tortious Fountain v. World Finance Corp., 144 12-6 which provides for injuries misconduct is defined as follows: I Ga. App. 10, 240 S.E. 2d 588 (1977). that are solely attributable to the charge you that a business owner [In addition, pattern jury charges on “peace, happiness or feelings” of owes a public legal duty of ordinary ordinary care, proximate cause, and the plaintiff. care which may not be delegated, to other alleged torts should be given. 11. Optional allegations include: protect and immunize his invitees, or Remember, not only words but a) Conspiracy allegations.26 customers, from abusive, insulting, conduct can be tortious misconduct.]

FOOTNOTES 1 Six of Georgia’s 1L tort professors graciously responded to Mr. 2d 403 (1964). Despite the court’s unfavorable ruling for the plaintiff Schultheiss’s July 2014 inquiry and relayed that “tortious misconduct” because the actions occurred off of the merchant’s premises, more is not taught in their torts classes. recent case law shows the dissent’s opinion is correct. Where the 2 Charles R. Adams III, Georgia Law of Torts §28:9, 28:6, 4:5(d)(3)(2013). tortious actions arise out of a business transaction and the employees are acting within the scope of their employment, the merchant 3 Swift, supra; Behre v. National Cash Register, 100 Ga, 213, 27 S.E. 986 can still be held liable even though the actions occurred off of the (1896). premises. 4 Swift, supra, at 572.11 5 Zayre of Atlanta v. Sharpton, 110 Ga. App. 17 Fountain, supra. See also Colonial Stores v. Sasser, 79 Ga. App. 604, 587, 589, 139 S.E. 2d 339 (1964) 54 S.E. 2d 719 (1949). 6 Ibid. at 590. 18 O.C.G.A. §51-7-60. 7 Cole v. Atlanta and West Point R. Co., 102 Ga. 474, 31 S.E. 107 (1897). 19 Swift, supra. 8 Swift v. S.S. Kresge Company, Inc., 159 Ga. App. 571, 572, 284 S.E. 20 Simmons v. Kroger Co., 218 Ga. App. 721, 723, 463 S.E. 2d 159 2d 74 (1981), citing Southern Grocery Stores, Inc. v. Keys, 70 Ga. App. (1995) 473, 477, 28 S.E. 2d 581 (1944). 21 O.C.G.A. §51-7-61. 9 Fountain v. World Finance Corp., 144 Ga. App. 10, 240 S.E. 2d 558 22 Tomblin v. S.S. Kresge Co.., 132 Ga. App. 212, 207 S.E. 2d 693 (1977) (1974). 10 Ibid. at 12. See also Davis v. Rich’s Department Store, Inc.,, 248 Ga. 23 Zayre, supra at 587. App. 116, 119, 545 S.E. 2d 661 (2001)(holding that only “personal” contact between a customer and merchant can support the claim 24 See, e.g., Gerald v. Ameron Automotive Centers, 145 Ga. App. 200, and where a third party commits the conduct that is the basis for the 243 S.E. 2d 565 (1978) (cert. den.) tort, even if it was at the request of the merchant, the plaintiff cannot 25 The safer practice is to plead and prove all elements of the succeed). underlying torts. Some cases such as Fountain, supra, at 12, clearly 11 Ibid at 588-90, citing Cole v. Atlanta and West Point R. Co., 102 Ga. state that the offensive conduct need not have all the elements of an 474, 31 S.E. 107, and Moore v. Smith, 6 Ga. App. 649, 65 S.E. 712 (1909). underlying tort (i.e., no publication required for a slander-type claim). Other cases, such as Jordan v. J.C. Penny Co., 114 Ga. App. 822, 152 12 Ibid. at 479. S.E. 2d 786 (1966), and Sowell v. Douglas County Electric Membership 13 Zayre supra, at 590, citing Behre, supra. Corp., 150 Ga. App. 520, 258 S.E. 2d 149 (1979) require pleading and 14 The relationship must be one which “inures to the benefit” to both proof of a definite underlying tort. The distinction in such rulings is the plaintiff and defendant. Todd v. Byrd, 283 Ga. App. 37, 640 S.E. 2d that tortious misconduct claims are more liberally allowed when the 652 (2006). See also Carter v. Willowrun Condominium Ass’n, Inc., 179 perpetrator/employee acted maliciously as shown by “…threatening, Ga. App. 257, 345 S.E. 2d 924 (1986) (holding that a landlord/tenant profane, abusive and disrespectful language” Sowell, supra, at 521 relationship is not one that satisfies the business invitor/invitee citing Fountain, supra. relationship). 26 Lanham v. Keys, 31 Ga. App. 635, 121 S.E. 856 (1935) 15 Ibid. at 590. 27 Zayre, supra at 590. Zayre at 590, affords “immunity” from tortious 16 But see Greenfield v. Colonial Stores, Inc., 110 Ga. App. 572, 139 S.E. misconduct to business invitees. ~ 6 ~

26 Tortious Misconduct Under Georgia Law Cases constituting tortious misconduct

CASE LOCATION FACTS HOLDING AND COMMENTS

The plaintiff passenger Cole v. Atlanta & West Trial court’s dismissal of the On the was “publicly denounced Point R. Co., 102 Ga. petition was reversed. The defendant’s in coarse and brutal 474, 31 S.E. 107 petition stated a cause of train language” by the (1897) action authorizing jury trial. defendant’s employees

In a loud and angry voice which could be heard by other customers, Trial court’s dismissal of the Lemaster v. Millers, Defendant’s defendant’s employee petition was reversed. The 33 Ga. App. 451, 126 department falsely accused the petition stated a cause of S.E. 875 (1925) store plaintiff of having an item action authorizing jury trial. belonging to the store in her handbag.

Plaintiff had a bag from another store with purchases in it that were Southern Grocery Trial court’s dismissal of the also sold at the store she Stores v. Keys, 70 Ga. Defendant’s petition was reversed. The was currently in. When App. 473, 28 S.E. 2d grocery store petition stated a cause of checking out, the cashier 581 (1944) action authorizing jury trial. falsely accused her of stealing the item in front of a line of customers

The court held that despite Plaintiff suspected of the fact that the conduct shoplifting was patted occurred outside of the Colonial Stores v. down after exiting store Outside defendant’s premises, the Sasser, 79 Ga. App. by store manager. defendant’s employee was still acting 604, 54 S.E. 2d 719 Manager refused store on street within the scope of his (1949) demand for apology employment and therefore, stating a pat down was facts still sustain a claim for store policy. tortious misconduct.

Plaintiff exited dressing room, wearing her own Trial court affirmed in Zayre of Atlanta, Inc. Defendant’s dress, when a store denying dismissal of the v. Sharpton, 110 Ga. department employee very loudly petition. The petition App. 587, 139 S.E. 2d store accused plaintiff of stated a cause of action 339 (1964) stealing the dress she authorizing jury trial. was wearing

continued on next page

27 Tortious Misconduct Under Georgia Law Cases constituting tortious misconduct (continued from previous page)

CASE LOCATION FACTS HOLDING AND COMMENTS

Statutory shoplifting defense case. Court reverses and remands Employee of the store to determine whether Tomblin v. SS. accused the plaintiff defendant had reasonable Defendant’s Kresge Co., 132 Ga. of stealing a pin and belief plaintiff was department App. 212, 207 S.E. had her arrested for shoplifting. Opinion store 2d 693 (1974) shoplifting. She was implies that these facts tried and acquitted. may constitute tortious misconduct if claim was not barred by statutory shoplifting defense.

Fountain v. World On the Finance company Trial court’s summary judgment Finance Corp., 144 Ga. telephone employee on debt for defendant was reversed. App. 10, 240 S.E. 2d 588 collection call threatened The petition stated a cause (1977) to take her child’s social of action authorizing jury trial security payments, used provided the required element profanity and called plaintiff of a business invitor-invitee “vile” names. relationship was proved

Adams v. Trust Co. Bank, At defendant’s The plaintiff’s bank account Trial court’s summary judgment 145 Ga. App. 702, 244 bank was wrongly frozen by in favor of defendant was S.E. 2d 651 (1978) defendant. Upon inquiring reversed. The complaint stated within the bank, a security a cause of action authorizing guard “abused him verbally jury trial. and assaulted him.”

Revco Discount Drug At the Defendant’s employee Jury verdict for plaintiff Center of Georgia, Inc. defendant’s loudly and angrily accused affirmed. v. Famble, 173 Ga. App. drugstore the plaintiff of stealing 330, 326 S.E. 2d 532 batteries within earshot (1985) of two customers, the pharmacist and the cashier.

Simmons v. Kroger Co., At defendant’s Plaintiff falsely accused Trial court’s summary judgment 218 Ga. App. 721, 463 grocery store of shoplifting by eating in favor of defendant was S.E. 2d 159 (1995) candy without paying for reversed. The complaint stated it, threatened with arrest, a cause of action authorizing escorted to manager’s jury trial. office but not prosecuted.

28 Tortious Misconduct Under Georgia Law Cases not constituting tortious misconduct

CASE LOCATION FACTS HOLDING AND COMMENTS

Greenfield v. At a Plaintiff purchased The majority held that this Colonial Stores, Inc., completely items from Defendant’s did not support a claim 110 Ga. App. 572, different store and then left for tortious misconduct 139 S.E. 2d 403 store near and went to another because the acts (1964) defendant’s store to continue occurred on premises store his shopping. Upon that were not owned by arriving at the other defendant. However, the store, two agents dissent asserted that of defendant’s this should be enough arrived behind him, to support a claim for pulling both his arms tortious misconduct behind his back and because the act was exclaiming loudly “so integrally a part of for other customers the transaction of the to hear that he stole company’s business meat from them and as to grow logically demanded he give it and inescapably out back. of it.” Recent case law suggests that the dissent was correct – if they are acting in their capacity as employees, it shouldn’t matter if it occurred off the premises. See Colonial Stores, infra and Fountain, infra

Jordan v. J.C. Penny At Defendant demanded, The Court held that Co., 114 Ga. App. defendant’s in presence of a this does not amount 822, 152 S.E. 2d department number of other to tortious misconduct 786 (1966) store customers, that because there was plaintiff surrender nothing in the record her credit card indicating that the words because she had filed spoken by defendant’s bankruptcy. It was employees were abusive later discovered that or opprobrious. The a woman with the defendant could deny same name that lived credit to anyone at any near to plaintiff was time. Note this is a 1966 actually the one that case. filed bankruptcy. The defendant eventually mailed plaintiff a letter of apology.

continued on next page

29 Tortious Misconduct Under Georgia Law Cases not constituting tortious misconduct (continued from previous page)

CASE LOCATION FACTS HOLDING AND COMMENTS

City Stores Co. v. At When plaintiff tried to The court held that Henderson, 116 Ga. defendant’s use her credit card, this evidence does not App. 114, 156 S.E. retail store the cashier demanded support a claim for 2d 818 (1967) surrender of the card tortious misconduct for due to an overdue two reasons: First, plaintiff account. A number of did have an overdue other customers heard account, hence the the accusation. cashier was authorized to take the credit card. Second, there is nothing alleged in the complaint about the clerk telling her this in a loud, boisterous, angry, or otherwise hurtful manner.

Gerald v. Ameron At Plaintiff worked at “No pleadings or action Automotive Centers, defendant’s defendant’s store below by the plaintiff gave 145 Ga. App. 200, retail store and on his day off, even the faintest notice 243 S.E. 2d 565 bought hubcaps from that he was relying in (1978) the store. Later, the any way on any cause of regional manager action other than slander.” claimed that he never Plaintiff may have had paid for them and stole an actionable claim for them from the store. tortious misconduct, but since there was no pleading alleging the elements of tortious misconduct, Behre barred the stated cause of action for slander against the corporation.

Sowell v. Douglas At plaintiff’s After defendant The court held that the County Electric house electrical company defendant merely acted Membership discovered that within the contract Corporation, 150 plaintiff tampered between the two parties Ga. App. 520, 258 with his meter on two and that these actions S.E. 2d 149 (1979) occasions, they shut were acceptable. off his electricity and told him to pay the charges associated with tampering or go without electricity.

30 Tortious Misconduct Under Georgia Law Cases not constituting tortious misconduct

CASE LOCATION FACTS HOLDING AND COMMENTS

Hav Swift v. S.S. At Plaintiff was called Court held that Kresge Co., Inc., defendant’s a “thief” and was defendant’s words and 159 Ga. App. 571, retail store arrested for shoplifting. action were immunized by 284 S.E. 2d 74 Shoplifting charge was the statutory shoplifting (1981) dismissed. defense.

Carter v. Willowrun In a letter Defendant landlord The Court held that Condominium wrote a letter to the plaintiffs were not Ass’n, Inc., 179 Ga. plaintiff accusing business invitees of the App. 257, 345 S.E. plaintiffs of breaking defendant named in the 2d 924 (1986) rules of their lease suit. The landlord-tenant relationship does not qualify as a business invitor-invitee relationship.

Doe v. Village of St. At Parents of 13-year-old The Court held that Joseph, Inc., 202 defendant’s girl attending boarding the theory of tortious Ga. App. 614, 415 boarding school sue boarding misconduct requires S.E. 2d 56 (1992) school school for teacher’s two elements absent alleged sexual conduct here: First, the public with girl. duty to protect invitees from tortious misconduct applies only in context of “mercantile establishments [that exist] for the purpose of selling goods;” and second, that the offending employee of the defendant was acting in the scope of employment duties. Therefore, even if the allegations were true, the plaintiff cannot recover under the theory of tortious misconduct.

continued on next page

31 Tortious Misconduct Under Georgia Law Cases not constituting tortious misconduct (continued from previous page)

CASE LOCATION FACTS HOLDING AND COMMENTS

Fly v. Kroger Co., At Plaintiff purchased The mixed factual status 209 Ga. App. 75, defendant’s meat that was on of plaintiff in her conduct 432 S.E. 2d 664 grocery sale from the store as employee alleged (1993) store where she worked. marking down the meat The next day she was and as invitee in buying called into a grievance the meat contributed to meeting where the court holding that the employer accused her employer’s conduct in of improperly reducing meeting behind closed the price of the meat doors did not constitute she had purchased. opprobrious or abusive conduct of an invitee.

Taylor v. Super At The cashier, believing Since the store employee Discount Market, defendant’s that plaintiff was immediately turned over 212 Ga. App. 155, grocery attempting to use the money to the proper 441 S.E. 2d 483 store counterfeit money, authority and there were (1994) seized plaintiff’s money no abusive words or and subsequently conduct, the court held gave it to a security no tortious misconduct guard who then called occurred. the police. The police quickly determined the money was authentic legal tender.

Mitchell v. Lowe’s At Defendant’s Defendant’s conduct held Home Centers, Inc., defendant’s employees to be reasonable under 234 Ga. App. 339, retail store accused plaintiff of the circumstance, hence 506 S.E. 2d 381 unauthorized use of a no tortious misconduct (1998) credit card and called occurred. her identification “bogus.” Plaintiff was using her mother’s account with authority, but plaintiff was mistaken about credit account number, thus arousing suspicion.

32 Tortious Misconduct Under Georgia Law Cases not constituting tortious misconduct

CASE LOCATION FACTS HOLDING AND COMMENTS

Davis v. Rich’s Dept. Over the Plaintiff’s identity Plaintiff never truly had Store, Inc., 248 Ga. telephone was stolen. Fraudster any business invitor- App. 116, 545 S.E. obtains Rich’s credit invitee relationship with card in Plaintiff’s 2d 661 (2001) name. Rich’s takes Rich’s. Therefore, an collection action. essential element of Plaintiff explains that tortious misconduct is identity was stolen absent. but plaintiff takes no action as requested by Rich’s to demonstrate that identity was stolen. Rich’s persists in collection through collection agency

Wolter v. Wal-Mart At Plaintiff has more than Court affirms summary Stores, Inc., 253 Ga. defendant’s one credit card and judgment for defendant App. 524, 559 S.E. department reports one stolen. holding that defendant Bank mistakenly 2d 483 (2002) store reports another of had a legitimate reason plaintiff’s cards to also for believing the card be stolen. Plaintiff was stolen and the attempts to use the defendant’s conduct card that should not was not abusive or have been reported stolen at Walmart. opprobrious. Walmart supervisor said “take that card. He’s using a stolen card” and took the card.

Todd v. Byrd, 283 At The plaintiff was Defendant wins because Ga. App. 37, 640 defendant’s accused of stealing plaintiff was in the store S.E. 2d 652 (2006) retail store and was arrested. merely to go to the bathroom. Therefore, she does not qualify for business invitee-invitor relationship.

Kirkland v. Earth Fare, At defendant’s An employee of the Since the accusations were not 289 Ga. App. 819, 658 grocery store defendant accused in front of any customers and S.E. 2d 433 (2008) the plaintiff of sexually since he was able to continue harassing female with his business “unmolested” employees of the store after the incident, the court ruled that the conduct was not abusive and stimulating himself in or opprobrious. However, earlier the men’s restroom. cases hold no publication of the words amounting to slander are required. See, Fountain v. World Finance Corp., 144 Ga. App. 10, 240 S.E. 2d 588 (1977)

33 Providing Business Advice to a Healthcare Client can be the Good Deed that will not go Unpunished J.D. “Randy” Dalbey

As lawyers, virtually all of us and the payment therefor.1 Thus, a have been asked many times for our lawyer’s effort to do a good turn can opinion about some form of legal be like pushing someone into quick- document or arrangement. A family sand – and then diving in after him. member, friend or neighbor wanting The primary sources of payment to know “is this lease alright?” or by the federal government for health- “does this employment agreement care services fall under the umbrellas look ok?” is simply an occupational of “Medicare” and “Medicaid,” and hazard, and most of us usually will each contains multiple programs oblige. With healthcare comprising under which payments are made. almost 20% of our economy, many An explanation of the organization of these leases, employment agree- and operation of these programs is ments, or other contracts or arrange- well-beyond the scope of this article; ments increasingly can involve some however, some basic understanding type of healthcare business. of these programs is helpful. J.D. “Randy” Dalbey graduated from What many lawyers may not Medicare and Medicaid both are the University of Georgia School of know, however, is that businesses government-funded insurance pro- Law cum laude in 1988, and has been in any healthcare-related field must grams which pay certain amounts a partner at Chilivis, Cochran, Larkins operate very differently from those of the cost of covered medical care and Bever for over 15 years. Randy fo- in most other fields. In fact, many provided to certain groups of per- cuses his practice on representing indi- common, every-day business prac- sons. Generally, Medicare provides viduals and small businesses, particu- tices employed by persons in a non- payment of a percentage of the cost larly healthcare providers, in complex healthcare business, are potentially of medical care provided to persons litigation and dispute resolution, and illegal in a healthcare business. The age 65 and older or who are dis- government investigations. reason for this is, simply put, “the abled. Medicare is administered by Golden Rule.” In healthcare, it is the federal government through the the federal government which has Centers for Medicare and Medicaid “the gold” - in 2013, the federal gov- Services (“CMS”), which contracts ernment paid over one trillion dol- with various private contractors to lars ($1,000,000,000,000) towards administer the program in different healthcare services. See, https://www. areas of the country. Medicaid, on cms.gov/research-statistics-data-and- the other hand, is funded largely by systems/statistics-trends-and-reports/ the federal government but is admin- nationalhealthexpenddata/nhe-fact- istered by the individual states. Both sheet.html. And make no mistake, the Medicare and Medicaid payments federal government loves to make may be made under a variety of dif- rules for the providing of healthcare ferent programs, either directly to

34 healthcare providers as direct reim- in return for a referral. 42 U.S.C. “remuneration” to the physician in bursement for the cost of a service §1320a-7b (b). AKS, however, is the form of lease payments, an AKS (such as a doctor’s exam or a pre- in many respects broader in scope violation also may have occurred. scription), or as a per diem payment than Stark. First, AKS applies to any If the physician is an employee or a (such as to a hospital or nursing referral, not just referrals by a physi- contract physician to a group prac- home). Healthcare providers who cian. In addition, AKS is not limited tice which owns the lab and X-ray wish to receive payment for treating only to referrals for a “designated equipment and bills for those tests,2. Medicare or Medicaid patients must health service,” instead applying the physician has “referred” the complete the proper forms, sign the to any referral for any “item or ser- patient to the group practice for a proper agreements, and obtain the vice” where payment will be made designated health service and a Stark proper approvals. Both these forms by Medicare or Medicaid. AKS is a violation may have occurred. If the and the claim forms which are sub- criminal statute, and thus requires a pharmacy pays a courier service to mitted for receiving payment, certify showing of intent. home-deliver its patients’ prescrip- that the provider is in compliance The terms “referral,” “financial tions and the physician owns any with all laws, rules and regulations relationship” and “remuneration” interest in the courier company, vio- for healthcare providers. See, CMS are broadly defined. Thus, a referral lations of both Stark and AKS may Form 855 and Form 1500, available at is more than your family doctor have occurred. https://www.cms.gov/Medicare/CMS- directing you to a particular spe- Fortunately, both Stark and AKS Forms/CMS-Forms/index.html. cialist, and includes any prescrip- provide “exceptions” or “safe har- The two statutes, and accompa- tion, order for a medical test or a bors” for many common business nying regulations, which can cause certification or recertification for a practices, including various leases, the most problem for non-healthcare health service. 42 C.F.R. § 411.351 employment agreements, service lawyers are the federal Stark law (Stark); U.S. v. Patel, 778 F.3d 607 (7th agreements and sales of a healthcare (“Stark”), 42 U.S.C. §1395nn, and the Cir. 2015)(adopting Stark definition business. It is extremely important Anti-Kickback Statute (“AKS”), 42 for AKS). A “financial relationship” to keep in mind, however, that such U.S.C. §1320a-7b (b). These statutes includes any payment arrangement, exceptions and safe harbors protect are the focus of this article. including salary, lease, commission, an arrangement or transaction that Stark is sometimes referred to as etc., as well as any kind of owner- otherwise is a violation of the stat- the “anti self-referral law.” Gener- ship or investment, whether direct utes. Each exception or safe harbor ally speaking, it bars a physician or indirect. 42 U.S.C. § 1395nn(a) has multiple requirements which a from referring patients for certain (2). Finally, “remuneration” includes party claiming its protection must types of medical services, labeled anything of value, from direct pay- satisfy to avoid violating the statute. “designated health services,” to any ment to free use of space or equip- Thus, for example, both Stark and entity with which the physician has ment. Thus, Stark and/or AKS AKS protect lease arrangements - but a “financial relationship.” 42 U.S.C. potentially reach(es) virtually every only if the lease is in writing, signed §1395nn (a). “Designated health business relationship or transaction by the parties, specifies the leased services” include laboratory, phys- involving a physician and any other space, is for an amount of space not ical therapy, occupational therapy, healthcare provider. more than is reasonably necessary, radiology and imaging, radiation How might these apply in the real is for at least one year in length, sets therapy, durable medical equipment, world? Consider the simple act of the lease payment in advance and for prescription drugs, hospital, home a physician ordering a blood test an amount that is commercially rea- health, and a number of other ser- or X-ray, or writing a prescription, sonable and fair market value, AND vices. 42 U.S.C. §1395nn (h)(6). Stark each of which is a “referral.” Each meets a number of other require- is a strict liability statute, and thus, of these services is a “designated ments. See 42 C.F.R. §§ 411.357(a) intent or knowledge is irrelevant – a health service.” And lease agree- (Stark), 1001.952(b)(AKS). Agree- physician who “self-refers” a patient ments, employment agreements and ments for management or other per- for a designated health service paid independent contractor status are sonal services (excluding employ- for by Medicare or Medicaid has vio- “financial relationships.” Therefore, ment) must be in writing, specify lated the law. if the lab or X-ray company leases all services to be performed, be for a AKS also prohibits certain conduct space in a building owned, directly term of at least one year, not exceed in connection with the “referral” of or indirectly, in whole or in part, by the services reasonably required to a patient, prohibiting the offering, the physician, a Stark violation may meet the commercially reasonable paying, soliciting or receiving of have occurred. In addition, because purposes of the arrangement, pay “any remuneration” (i.e., a kickback) the lab or X-ray company is paying continued on next page

35 Providing Business Advice continued from previous page compensation that is set in advance, of Stark must be “disgorged,” and where he sends his patients, or that be for fair market value, and not take if the healthcare provider knew or the lab to which the doctor sends his into account the volume or value should have known of the violation, patients pays the doctor an annual of referrals, AND meet a number the provider can be subject to pen- “consulting fee,” is financially of other requirements, in order to alties of up to $15,000 per service encouraged to hire an attorney and satisfy Stark and AKS. 42 C.F.R. §§ provided in violation of the statute, file False Claims Act lawsuits against 411.357 (d), 1001.952 (d). $100,000 for each transaction entered all of these entities. Relators also are A detailed analysis of the many into which should be expected to encouraged to file quickly, as only exceptions and safe harbors for these lead to violations of the statute, and the “first to file” the whistleblower statutes is well-beyond the scope of $10,000 per day for each day a viola- lawsuit can share in the recovery. 31 this article. Note, however, two terms tion should be reported but is not. 42 U.S.C. § 3730 (b)(5). mentioned above which appear U.S.C. §1395nn (g). AKS is a criminal When the whistleblower com- repeatedly throughout the excep- statute, whose violation can lead to plaint is filed, it remains under seal tions and safe harbors – “volume or five years’ imprisonment. 42 U.S.C. with the court for a period of time value of referrals,” and “fair market §1320a-7b (b). that is within the court’s discretion value.” Fair market value is the Moreover, Stark and AKS viola- – which can run years. 31 U.S.C. § amount a willing buyer and seller tions can form the basis of claims 3730 (b). During this time, the gov- would agree upon NOT TAKING under a federal statute known as ernment can investigate the allega- INTO ACCOUNT the value of any the “False Claims Act.”4 Generally tions of the complaint using every referrals.3 The phrase “volume or speaking, the False Claims Act pro- tool available to a litigant in dis- value of referrals”3 is, much as it hibits filing or causing to be filed a covery, and then some. See 31 U.S.C. sounds, essentially a ban on pay- “false claim” to get money from the § 3733. (Notably, potential damages ments that increase or decrease based federal government, or making a false continue to accrue.) Thus, the mere on the amount of business between statement material to getting a claim filing of a whistleblower complaint the parties – i.e., the incentive pay- paid by the government. In order to can lead to tens of thousands of dol- ment process routinely used to com- be paid by Medicare and Medicaid lars of attorney fees, in addition to pensate persons in virtually every healthcare providers are required significant business disruption. industry, is problematic in health- to certify on their claims, inter alia, If the government so chooses, it care. For this reason, the number of that they are in compliance with all can after investigation “take over” consultants who can and do provide healthcare statutes, including Stark the whistleblower complaint. 31 fair market value opinions and anal- and AKS. Therefore, if a healthcare USC 3730 (b)(4). Even if the govern- ysis is growing exponentially. provider has violated Stark or AKS, ment does not take over the whis- Put simply, every employment but continues to submit claims for tleblower complaint, however, the agreement, sales agreement, man- payment to Medicare or Medicaid, whistleblower and his/her attorney agement contract or lease, if between the provider may have made a false can litigate the case just like any healthcare providers, could lead to statement material to getting his/ other. 31 U.S.C. § 3730 (c)(3). The a potential Stark or AKS violation. her/its Medicare or Medicaid claims False Claims Act provides for treble And normal business practices (such paid. damages, 31 U.S.C. § 3729 (a)(1), in as free samples, volume discounts, The False Claims Act also allows a addition to fines and penalties of up even entertainment) often violate whistleblower, called a “relator,” to to $11,000 per Medicare and Med- AKS, since the intent of such normal file a complaint alleging violations icaid claim submitted. “Damages” business practices is to generate a of the False Claims Act. 31 U.S.C. in this context arguably have been corresponding referral. It is easy to § 3730 (b). In fact, the False Claims interpreted to equal the provider’s see, therefore, how any business or Act contains considerable incentives total Medicare and Medicaid pay- financial transaction or arrangement for relators to file such complaints. ments received during the limita- involving a healthcare provider must These include, in addition to being tions period. United States v. Rogan, be carefully scrutinized for compli- paid a portion of any recovery, statu- 517 F.3d 449, 453 (7th Cir. 2008); ance with Stark and AKS. tory attorneys’ fees, 31 U.S.C. § 3730 United States ex rel. Freedman v. The consequences for failing to (d) and protection from retaliation, Suarez-Hoyos, 781 F. Supp. 2d 1270 comply with these complicated 31 U.S.C. § 3730 (h). Thus, the office (M.D. Fla. Mar. 18, 2011). With a rules can be staggering. First, each manager who knows that the doctor limitations period of at least six years statute has its own penalties. Thus, pays no rent on his office which is – and up to ten years under some any moneys received in violation in a building owned by the hospital circumstances – a False Claims Act

36 complaint can destroy a healthcare Ltd. v. Millenium Laboratories, Inc., provider. If the provider is a profes- business, regardless of who pursues 803 F.3d 518 (11th Cir. 2015). Thus, sional who is required to be licensed, the complaint, which is a very steep a provider who pays a clinic “per such as a doctor, the licensing board price indeed for a speaking fee or head” based on referrals, or who may attempt to limit – including some free rent. gives rebates based on the number suspension or revocation – the pro- Contracts which violate Stark or of tests or dollar volume generated, vider’s professional license. So if the AKS can have other implications may be on the receiving end of a law- regulatory violation does not put the as well. A contract which violates suit from a competitor. provider out of business, the profes- Stark or AKS may be unenforceable Finally, a healthcare provider sional licensing board may. as illegal. Polk County v. Peters, may face various “collateral” conse- When a non-healthcare lawyer 800 F. Supp.2d 1451 (E.D. Tex. 1992). quences for violating Stark or AKS, does a favor for someone in a health- Thus, e.g., a physician who signs an or for paying a settlement to the care-related field by providing free employment contract which violates government in response to a False advice on some type of business Stark or AKS may be unable to collect Claims Act complaint. First, the gov- issue, the lawyer must make sure amounts which the contract requires ernment has the power to exclude that his/her good intentions do not to be paid. In addition, at least one or suspend a provider from partici- start both lawyer and client down court has allowed to go forward pation in Medicare and Medicaid. the proverbial road to ruin – because claims of tortious interference and Moreover, many commercial insur- in today’s world of regulation and unfair competition based on viola- ance companies require providers to enforcement, any mis-step in pro- tions of Stark and/or AKS. Ameritox, notify the insurer if the provider is viding this good deed likely will not Ltd. v. Millenium Laboratories, Inc., suspended or excluded from Medi- go unpunished. 20 F.Supp.3d 1348 (M.D. Fla. 2014), care or Medicaid, and likely will rev’d on other grounds Ameritox, take some similar action against the

FOOTNOTES 1. Anyone who doubts this need merely look at Chapters IV and V of Title 42 of the Code of Federal Regulations, and realize that you only have scratched the surface of government regulation of this industry. 2. It is common to bill separately for the “cost” of providing such a separate and distinct service; this is known as the “technical fee,” which is in addition to the bill submitted for the physician’s “professional fee” for treating the patient. 3. Thus, a hospital hiring a physician cannot base the physician’s employment on the number of patients the physician will refer to the hospital, even though such a method of calculating compensation seems reasonable and “fair market value” in a non-healthcare business. 4. Many states, including Georgia, have their own False Claims Act statutes also. These statutes are modeled on the federal statute.

37 Remarks by William S. Stone continued from page 21

to this list of Georgia’s elite lawyers. When you But I really want to take this opportunity to thank look at the list of past recipients of the Tradition you all for all the good work all of you do every day of Excellence Award, you are overwhelmed to be in making and keeping our country, our democra- added to it. These folks are the giants of the profes- cy, and our people, the greatest nation the world sion, and I have been privileged to know most of has ever seen. Without you, it would not be so. It is them and be influenced positively by them. This is really all of you who deserve this honor and credit, like being inducted into the lawyers’ Hall of Fame. because you have created and maintained the tra- I have to keep pinching myself to remind myself dition of excellence to which we all aspire. this is really happening.

Nominate a candidate for the 2017 Tradition of Excellence Awards.

Visit our webpage at gabar.org, click on Sections, then Section Webpages, pick General Practice and Trial Print the Tradition of Excellence Letter, Nomination Form and Past Recipients

38 NOTES

39 NOTES

40 INSIDE BACK COVER (BLANK) Editor: David A. Sleppy, 649 Irvin St., P.O. Box #689, PRESORTED Cornelia, GA 30531 STANDARD U.S. POSTAGE PAID Atlanta, Georgia Permit No. 1447

GENERAL PRACTICE & TRIAL SECTION

General Practice and Trial Section State Bar of Georgia “Georgia’s Largest Law Firm” APPLICATION FOR MEMBERSHIP IN THE GENERAL PRACTICE & TRIAL SECTION OF THE STATE BAR OF GEORGIA For members of the State Bar of Georgia:

Name:______

State Bar #:______

Address:______

City, State & Zip:______

E-Mail:______

Application date:______

Cost: $35, payable by check to the State Bar of Georgia, and send to: The General Practice & Trial Section, 104 Marietta Street, NW, Suite #650, Atlanta, GA 30303

______Signature