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Quick Dial Editorial Board Attorney Discipline 800-334-6865 Editor-in-Chief ext. 720 404-527-8720 Robert R. Stubbs Consumer Assistance Program 404-527-8759 Members Conference Room Reservations 404-419-0155 Robert Henry Beer Christina Virginia Hendrix Fee Arbitration 404-527-8750 Erika Clarke Birg Michelle J. Hirsch CLE Transcripts 404-527-8710 Diversity Program 404-527-8754 Donald P. Boyle Jr. Michael Eric Hooper ETHICS Helpline 800-682-9806 John Clay Bush Hollie G. Manheimer 404-527-8741 Clayton Owen Carmack Edward Alexander Marshall Georgia Bar Foundation/IOLTA 404-588-2240 Georgia Bar Journal 404-527-8791 Catherine Nemetz Clutter Olivia Orza Lawyer Assistance Program 800-327-9631 James William Cobb Matthew James Pociask Lawyers Foundation of Georgia 404-659-6867 Timothy Jerome Colletti Susan Lee Rutherford Law Practice Management 404-527-8773 Law-Related Education 404-527-8785 Bridgette Eckerson Paul Gregory Sherman Membership Records 404-527-8777 Lynn Gavin Jack P. Smith III Meetings Information 404-527-8790 Robert Frederick Glass Pamela Y. White-Colbert Pro Bono Project 404-527-8763 Adina Greiner Professionalism 404-225-5040 Sections 404-527-8774 Unlicensed Practice of Law 404-527-8743 Editors Emeritus Young Lawyers Division 404-527-8778 Donald P. Boyle Jr., 07-10 William L. Bost Jr., 91-93 Manuscript Submissions Marcus D. Liner, 04-07 Charles R. Adams III, 89-91 The Georgia Bar Journal welcomes the submission of unsolic- Rebecca Ann Hoelting, 02-04 L. Dale Owens, 87-89 ited legal manuscripts on topics of interest to the State Bar of Georgia or written by members of the State Bar of Georgia. Marisa Anne Pagnattaro, 01-02 Donna G. Barwick, 86-87 Submissions should be 10 to 12 pages, double-spaced (includ- D. Scott Murray, 00-01 James C. Gaulden Jr., 85-86 ing endnotes) and on letter-size paper. Citations should con- form to A UNIFORM SYSTEM OF CITATION (19th ed. 2010). William Wall Sapp, 99-00 Jerry B. Blackstock, 84-85 Please address unsolicited articles to: Robert R. Stubbs, State Bar of Georgia, Communications Department, 104 Marietta Theodore H. Davis Jr., 97-99 Steven M. Collins, 82-84 St. NW, Suite 100, Atlanta, GA 30303. Authors will be notified L. Brett Lockwood, 95-97 Walter M. Grant, 79-82 of the Editorial Board’s decision regarding publication. Stephanie B. Manis, 93-95 Stephen E. Raville, 77-79 The Georgia Bar Journal welcomes the submission of news about local and circuit bar association happenings, Bar members, law firms and topics of interest to attorneys in Officers of the State Bar of Georgia Georgia. Please send news releases and other informa- Kenneth L. Shigley President tion to: Sarah I. Coole, Director of Communications, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: Robin Frazer Clark President-Elect 404-527-8791; [email protected]. S. Lester Tate III Immediate Past President Disabilities Charles L. Ruffin Treasurer If you have a disability which requires printed Patrise M. Perkins-Hooker Secretary materials in alternate formats, please contact the ADA coordinator at 404-527-8700 or 800-334-6865. Stephanie Joy Kirijan YLD President Headquarters Jonathan B. Pannell YLD President-Elect 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 Michael G. Geoffroy YLD Past President 800-334-6865, 404-527-8700, FAX 404-527-8717 Visit us on the Web at www.gabar.org. Communications Committee South Georgia Office Jay Cook Co-Chair 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Robert Ingram Co-Chair 800-330-0446, 229-387-0446, FAX 229-382-7435 Coastal Georgia Office Communications Staff 18 E. Bay St. Sarah I. Coole Director Savannah, GA 31401-1225 877-239-9910, 912-239-9910, FAX 912-239-9970 Jennifer R. Mason Assistant Director Publisher’s Statement Derrick W. Stanley Section Liaison The Georgia Bar Journal (ISSN-1085-1437) is published six times Stephanie J. Wilson Administrative Assistant per year (February, April, June, August, October, December) with a special issue in November by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303. Copyright State Bar of Georgia 2011. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in Atlanta, Georgia and additional The opinions expressed in the Georgia Bar Journal mailing offices. Opinions and conclusions expressed in articles herein are those of the authors and not necessarily those of the are those of the authors. The views expressed herein Editorial Board, Communications Committee, Officers or Board are not necessarily those of the State Bar of Georgia, of Governors of the State Bar of Georgia. Advertising rate card will be furnished upon request. Publishing of an advertisement its Board of Governors or its Executive Committee. does not imply endorsement of any product or service offered. POSTMASTER: Send address changes to same address. 18

February 2012 Volume 17 Number 5

GBJ Legal Departments 26 12 4 From the President The Sophisticated User 10 From the YLD President Defense: It’s Not Just for Drug 38 Bench & Bar Companies Anymore by Andrew M. Thompson 42 Office of the General Counsel 18 44 Lawyer Discipline The Confirmation 48 Law Practice Management Resale Conundrum by Justin Lischak Early 50 Section News and James B. Jordan 52 Member Benefits 54 Writing Matters 42 GBJ Features 56 Professionalism Page 26 58 In Memoriam 2012 State of the 60 CLE Calendar Judiciary Address by Chief Justice Carol Hunstein 66 Notice 71 Classified Resources 32 72 Advertisers Index Military Legal Assistance Program Aid Tops 500 in Two Years by Norman E. Zoller

Cover Photo: State Bar President Kenneth L. Shigley pictured 48 with lawyer-legislators in the Georgia General Assembly. (Left to right, bottom row) Rep. Larry O’Neal; Rep. Rich Golick, chairman, House Judiciary (Non-Civil); Speaker of the House David Ralston; Rep. Wendell Willard, chairman, House Judiciary; Rep. Edward Lindsey; Rep. Roger B. Lane, chairman, Legislative & Congressional Reapportionment. (Second row) 56 Sen. Jesse Stone; Sen. Ronald B. Ramsey Sr., chairman, Urban Affairs; Sen. Bill Hamrick, chairman, Senate Judiciary; Kenneth L. Shigley, president, State Bar of Georgia; Sen. Curt Thompson, chairman, Special Judiciary; Sen. Joshua McKoon. (Third row) Sen. John Crosby, chairman, Ethics; Sen. Jason Carter; Sen. Bill Cowsert; Sen. William T. Ligon Jr.; Sen. Charlie Bethel, chairman, Reapportionment and Redistricting. (Fourth row) Rep. Mike Jacobs, chairman, MARTOC; Rep. Mary Margaret Oliver; Rep. Mark Hatfield; Rep. Dar’shun Kendrick; Rep. Doug McKillip; Rep. Elly Dobbs. (Fifth row) Rep. B. J. Pak; Rep. Matt Ramsey; Rep. Dustin Hightower; Rep. Elena Parent; Rep. Stacey Evans; Rep. Andrew J. Welch. (Sixth row) Rep. Alex Atwood; Rep. Doug Collins; Rep. Scott Holcomb; Rep. Jay Powell; Rep. Billy Maddox, chairman, Code Revision; Rep. Christian Coomer. Not pictured: Rep. Stacey Abrams; Rep. Stephen Allison; Rep. Stephanie Stuckey Benfield; Rep. Rick Crawford; Rep. Pam Stephenson; Rep. Tom Weldon; Sen. Judson Hill, chairman, Government Oversight. Cover photo by Peter Stokes Media From the President

by Kenneth L. Shigley Independent Courts as Economic Infrastructure

third of a century trekking between The centrality of courts in American life is obvious when you drive down a two-lane blacktop into the typi- Georgia courts, first in a single rural cir- cal county seat town. On a square near the intersection of main roads stands a Neoclassical/Greek Revival/ cuit and then more or less statewide, has Colonial/Victorian/Romanesque/Beaux-Arts/Classical A structure built in the 19th or early 20th century. A few made me a minor connoisseur of courthouses, the most burned and were replaced by structures for which surely no architect would claim credit, visible physical infrastructure of the but many old courthouses have “Economic theory been beautifully renovated. In a judicial system. I have tried cases in number of growing counties the generally supports the historic courthouse on the square a courthouse across the street from a has become a museum, replaced by a larger and more efficient “jus- railroad track where cross-examina- idea that high-quality tice center” several blocks away. However, the centrality of the tion was frequently interrupted by courts and judicial courthouse is still marked by the historic placeholder. passing freight trains. In courthous- independence facilitate Before the American Revolution, when power resided with distant es where birds flew through open economic growth.” officials in London, the functions of local bailiffs (who sometimes windows and found perches near acted as judges then rather than security guards), magistrates and justices of the peace— the high courtroom ceiling and in courthouses that would often illiterate and lacking even rudimentary legal train- ing—were carried out in the informal settings of homes, have been a great movie set for “To Kill a Mockingbird.” taverns, churches or meeting halls. In the older colonies to the north small brick county courthouses began to I have tried cases in courthouses that resembled a poorly appear in the early 18th century. In the younger colony of Georgia, where both lawyers and rum were initially designed 1950s motel; in a “law mall” resembling an prohibited, a year after the 1733 founding of Savannah a one room “Tabernacle and Court House” was included enclosed shopping center and in an architectural gem that in the town plan. By the time of the Revolution a brick courthouse was built at Wright Square, while our other could be a post-modern capitol of a small state. 11 colonial parishes apparently had no more than a crude

4 Georgia Bar Journal log court building. In 1777, the first Georgia constitution created eight counties and provided for erection of a “court-house and jail” in each of them, symbolic of the transfer of political sovereignty from a distant king to the local people.1 Over the next several generations of rapid growth, settlers and surveyors spread westward, filling the land they took from the native inhabitants and dividing it into a multitude of counties. In Georgia, the idea was that every farmer with a horse and wagon should be able to get to the county seat and back in a day. New counties proliferated until we hit a maximum of 161 before the merger of Fulton, Campbell and Milton in 1931, after At the end of the day... which the constitution was amended to limit us to a mere 159 counties. Who’s Really Wherever a new county was formed, construction of a courthouse was one of the first public acts, along with Watching Your the basic “hard infrastructure” improvements of mule- scraped dirt roads, wooden bridges, and eventually rail- Firm’s 401(k)? roads, telephones, rural electrification and paved roads. Scattered across rural Georgia today are a few century- And, what is it costing you? old courthouses that stand almost alone among the fields and pastures, monuments to the aspirations of the • Does your firm’s 401(k) founders of a newly formed county that was bypassed include professional investment by railroads and major highways. In the years after Alexis de Tocqueville described fiduciary services? lawyers as America’s “natural aristocracy” that served • Is your firm’s 401(k) subject as a conservative restraint on the excesses of temporary majorities,2 the increased professionalization of law and to quarterly reviews by an architecture led to construction across the country of independent board of directors? hundreds of courthouses, proud structural symbols of democracy, law, aspiration, free enterprise and prosper- • Does your firm’s 401(k) feature ity.3 Courthouses were the core of infrastructure around no out-of-pocket fees? which were built train depots, cotton gins, factories, warehouses, schools, churches, libraries and eventually If you answered no to any of these questions, hospitals. Upon such foundations many Georgia com- munities were built. contact the ABA Retirement Funds Program to Political discussions of public infrastructure usually learn how to keep a close watch over your 401(k). focus on “hard infrastructure” required to support com- merce and quality of modern life—highways, bridges, Phone: (800) 826-8901 seaports, airports, rails, dams, reservoirs, water and email: [email protected] sewer systems, the electric power grid, natural gas and Web: www.abaretirement.com petroleum pipelines, telecommunications, waste man- agement systems and so forth. However, “soft infrastructure” is just as important. The services of education, health care and financial systems are key components of the “soft infrastruc- ture.” For example, without a world-class system of education for all our youth, our nation cannot preserve its pre-eminent role in the global economy of the 21st Who’s Watching Your century. It is imperative that our state and local com- Firm’s 401(k)? munities place priority on making our public schools The American Bar Association Members/Northern Trust Collective Trust (the “Collective Trust”) has filed a registration statement (including the prospectus therein (the “Prospectus”)) with the Securities and Exchange Commission for the offering of Units representing pro rata beneficial competitive with the best in Shanghai, Singapore and interests in the collective investment funds established under the Collective Trust. The Collective Trust is a retirement program sponsored by the ABA Retirement Funds in which lawyers and law firms who are members or associates of the American Bar Association, most state and local bar associations and their employees and employees of certain organizations related to the practice of law are eligible to participate. Copies of Helsinki, equipping our children and grandchildren the Prospectus may be obtained by calling (800) 826-8901, by visiting the Web site of the ABA Retirement Funds Program at www.abaretirement.com or by writing to ABA Retirement Funds, P.O. Box 5142, Boston, MA 02206-5142. This communication shall not constitute with competencies in math, science and creativity to an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, Units of the Collective Trust, and is not a recommendation with respect to any of the collective investment funds established under the Collective Trust. Nor shall there be any sale of be able to excel in the “flat world” of a global economy the Units of the Collective Trust in any state or other jurisdiction in which such offer, solicitation or sale would be unlawful prior to the registration or qualification under the securities laws of any such state or other jurisdiction. The Program is available through the State Bar of Georgia as a knit together through technology.4 Losing our edge member benefit. However, this does not constitute an offer to purchase, and is in no way a recommendation with respect to, any security that is available through the Program. in education, we are vulnerable to economic decline

February 2012 5 Investments in high quality, independent courts can promote a “virtuous cycle” where relatively modest expenditures on court improvements enhance economic growth.6 and all that implies. A young els of investment in machinery dent judiciary serves to fragment lawyer seeking a path for public and human capital. This empow- governmental power and thus service could do worse than to ers higher degrees of specializa- restrain the power of the state to serve as a volunteer tutor, become tion, which in turn promote eco- run roughshod over the personal, active in PTA leadership or run nomic growth. Independent judi- property and economic rights of for the local school board with a ciaries, therefore, are conducive individuals. That is a key distinc- clear focus on making their local to high- ncome levels and growth tion between the constitutional sys- schools competitive with the best and facilitate higher tax revenues tems of the United States and other in the world. for the state.7 countries, such as the old Soviet A strong, independent judi- Some economists have suggested Union, where constitutions may cial branch of government is also that countries with legal systems look great on paper but are not an essential component of “soft based on the common law have enforced to restrain the power of infrastructure.” Judicial indepen- more highly developed financial authoritarian political systems. It is dence is periodically attacked from markets than civil law countries only an independent judiciary that both right and left, depending because the common law provides can assure that the powerful can- upon whose ox was most recently more secure protection of property not crush the weak with impunity gored. Any of us may passion- and contract rights, creditors and and that political winners do not ately disagree with and bitterly minority shareholders, all of which annihilate anyone who unsuccess- criticize particular court decisions. are keys to the cost of capital. The fully opposes them. However, attacks on judicial inde- root of such a distinction may not Judicial independence faces many pendence often come from folks be in substantive differences in challenges, but perhaps the greatest who place their own agendas legal rules, but because of differing threat is the erosion of judicial pay ahead of the common good or who assumptions about the roles of the to the extent that Chief Justice John slept through civics class. individual and the state. The com- Roberts has said approaches a “con- Economic theory generally sup- mon law has been associated with stitutional crisis.” If the courts are ports the idea that high-quality fewer government restrictions on to maintain their position of respect, courts and judicial independence economic and other liberties. The strength and independence, judge- facilitate economic growth. Our bottom-up nature of the common ships should be attractive to suc- courts uphold both public order law tradition, built upon human cessful lawyers in the prime of life. and the rights of citizens, enforce experiences in thousands of cases, No good lawyer should be forced to contracts and protect property, pro- as distinguished from a top-down choose between accepting a judge- vide an orderly manner to obtain approach in a predominantly auto- ship and sending his or her children compensation for wrongs done, cratic or regulatory state, may be to college. promote stability, and by doing so seen as a proxy for the intent to Chief Justice Roberts has point- encourage the investment necessary limit rather than strengthen the ed out that from 1969 to 2006, for economic development.5 state, and to preserve rather than inflation-adjusted federal judicial Investments in high-quality, erode the rights of individuals. pay declined 23.9 percent while independent courts can promote Some also suggest that the com- the average U.S. worker’s wage, a “virtuous cycle” where relative- mon law’s adversarial adjudication adjusted for inflation, rose 17.8 ly modest expenditures on court process tends to result in the sur- percent, for a net gap of 41.7 per- improvements enhance economic vival of efficient and the demise of cent. This left judicial compensa- growth.6 Judicial independence is inefficient rules.8 tion below that of typical mid-level economically important because In countries such as ours with (and a few first-year) associates in it serves as a mechanism for the systems based upon the common many large law firms.9 Moreover, government to turn its simple law tradition, judges are indepen- in 1969, a federal district judge promise of equal justice for all dent officials occupying a high- earned 21 percent more than deans into a credible commitment. It status office, whereas in systems at top law schools and 43 per- increases predictability for busi- outside the common law tradition cent more than senior professors at nesses and individuals so they judges are often civil servants of those schools, but by 2006 earned may have a broader planning relatively low-status without inde- about half as much as top profes- horizon necessary for higher lev- pendent authority. An indepen- sors at such law schools. The judi-

6 Georgia Bar Journal ciary, according to Chief Justice Roberts, will soon be restricted to ON THE COVER: A Special Thank “(1) persons so wealthy that they can afford to be indifferent to the You to Georgia’s Lawyer-Legislators level of judicial compensation, or Georgia’s lawyer-legislators earn our appreciation and respect every day (2) people for whom the judicial they take from their law practices and other responsibilities to serve in the 10 salary represents a pay increase.” General Assembly. The more I see of the reality of legislative service, the The comparative numbers in this more I recognize the sacrifices they make for public service. All of them analysis have surely changed dur- deserve our thanks. ing the severe recession of the past few years but the core fact of ero- Over the years, the number of lawyers in the General Assembly has sion of judicial pay remains true. dwindled. Today we are at risk of having too few seasoned lawyers in the Much the same diminution of pur- ranks of the legislature to skillfully parse the words of legislation so as to chasing power of judicial power avoid the “law of unintended consequences.” Too few to explain to their has occurred in Georgia’s judicial non-lawyer colleagues how the court system really works. Too few to keep system, though the wide variations in focus the importance of an adequately funded, independent third branch among local supplements for supe- of government. rior court judges and the mix of Georgia lawyers who find public service appealing should consider running full-time and part-time state court for the legislature when a seat comes open in their district. While the judges make a precise comparison satisfaction of service may be its own reward, experience in the legislature quite complex. can be a great step in a lawyer’s career. We have a long tradition of Georgia While surprisingly few judg- lawyers who serve in the legislature and go on to higher office in Congress or es leave office before retirement in the state executive and judicial branches. Two of our last three Governors, explicitly because of the pay gap and four out of eight in the past half century, have been lawyers who started between judicial salaries and what their public careers in the legislature. Others have found legislative experience they would expect to earn in private invaluable in building successful careers in law practice or business. practice, the lagging compensation Please take the time to reach out to your Senator and Representative to does affect both judicial morale and thank them for their service. And if a seat comes open in your district, urge the talent pool from which judges one of your colleagues to consider legislative service. are drawn. In the 1950s, two-thirds – State Bar President Kenneth L. Shigley of federal judicial appointees came from the private sector. Today House of Representatives Rep. Larry O’Neal (R-Bonaire) that is nearly reversed, with more Rep. Stacey Abrams (D-Atlanta) Rep. Jay Powell (R-Camilla) than 60 percent coming from the Rep. Stephen Allison (R-Blairsville) Speaker David Ralston (R-Blue Ridge) public sector.11 Rep. Alex Atwood (R-Brunswick) Rep. Matt Ramsey Certainly there are many superb Rep. Stephanie Stuckey Benfield (R-Peachtree City) judges whose prior careers had (D-Alanta) Rep. Pam Stephenson (D-Atlanta) been primarily in the public sec- Rep. Doug Collins (R-Gainesville) Rep. Andrew J. Welch tor. In vetoing a judicial pay raise, Rep. Christian Coomer (R-McDonough) a former governor said he was (R-Cartersville) Rep. Tom Weldon (R-Ringgold) impressed by the “quality and Rep. Rick Crawford (D-Cedartown) Rep. Wendell Willard character of those who offer them- Rep. Elly Dobbs (D-Atlanta) (R-Sandy Springs) selves for public service in the state Rep. Stacey Evans (D-Smyrna) judiciary.”12 However, that did Rep. Rich Golick (R-Smyrna) Senate not take into account the trend, Rep. Mark Hatfield (R-Waycross) Sen. Charlie Bethel (R-Dalton) especially in metropolitan areas, to Rep. Dustin Hightower Sen. Jason Carter (D-Decatur) draw judges primarily from public (R-Carrollton) Sen. Bill Cowsert (R-Athens) sector jobs because judicial office Rep. Scott Holcomb (D-Atlanta) Sen. John Crosby (R-Tifton) requires too great a financial sacri- Rep. Mike Jacobs (R-Atlanta) Sen. Bill Hamrick (R-Carrollton) fice for lawyers in their prime who Rep. Dar’shun Kendrick (D-Litonia) Sen. Judson Hill (R-Marietta) have been successful in private Rep. Roger B. Lane (R-Darien) Sen. William T. Ligon Jr. practice. I have heard judges com- Rep. Edward Lindsey (R-Atlanta) (R-Brunswick) Rep. Billy Maddox (R-Zebulon) ment that public service is much Sen. Joshua McKoon (R-Columbus) Rep. Doug McKillip (R-Athens) more palatable when one has a Sen. Ronald B. Ramsey Sr. Rep. Mary Margaret Oliver (D-Decatur) very highly compensated spouse (D-Decatur) Sen. Jesse Stone (R-Waynesboro) or a strong base of family wealth. Rep. B. J. Pak (R-Lilburn) Sen. Curt Thompson (D-Tucker) One wag even suggested that the Rep. Elena Parent (D-Chamblee) solution for lagging judicial sala-

February 2012 7 ries is to require that judicial aspi- Beyond the core issue of fund- ly funded and compensated and rants “marry rich.”13 In any event, ing, there are many other issues equipped for efficiency is essential life experience in the trenches of that a 21st century judicial system infrastructure for both the liberty of private law practice—taking entre- must address regarding organiza- our citizens and the growth of our preneurial risks, representing pay- tion, structure, case flow manage- economy. Money allocated to sup- ing clients and making payroll— ment and court technology. Last port a strong and independent judi- is a different and valuable form spring I had a conversation with cial branch is money well invest- of preparation for judging than a Hon. David Emerson in Douglas ed. As Alexander Hamilton put it, career spent primarily in the public County, currently president-elect “[t]he independence of the judges sector. of the Council of Superior Court once destroyed, the constitution is A more subtle impact may be Judges, about electronic court fil- gone, it is a dead letter; it is a vapor that, at least in the federal system in ing. He commented that we ought which the breath of faction in a major metropolitan areas, lawyers to step back and ask what we want moment may dissipate.”17 who are willing to accept huge pay the court system to look like in 20 cuts from lucrative partnerships at years. Following up on that sug- Kenneth L. Shigley is the major law firms in order to become gestion when I became president president of the State Bar of judges may be ideologically moti- of the State Bar, I appointed a Next Georgia and can be reached at vated. There must be a strong moti- Generation Courts Commission,16 [email protected]. vation for an equity partner at a top chaired by Hon. Lawton Stephens law firm to take a staggering pay of Athens. It includes judges, clerks Endnotes 14 cut in order to become a judge. and administrators representative 1. Chatham County Courthouse, Some contend that, at least for those of every class of courts in the state, Georgia Info, http://georgiainfo. for whom judicial office would legislators and practicing lawyers. galileo.usg.edu/courthouses/ involve the greatest lost opportu- The commission is divided into five chathamCH.thm (viewed Jan. 25, nity cost due to disparity with fairly hard working subcommittees, each 2012). secure private practice income in of which has a meaty agenda of 2. 1 ALEXIS DE TOCQUEVILLE, a large firm, such motivation may issues to address: business process DEMOCRACY IN AMERICA 278 (Phillips be, at least in part, driven by the improvement, technology, educa- Bradley ed., Alfred A. Knopf, Inc. 1963) (1835) (“[In America, lawyers] opportunity to indoctrinate. Judges tion & outreach, program improve- form the highest political class ought not be “minor league politi- ments & expansion and funding. I and the most cultivated portion of cians” seeking to make law rather expect that they will help determine society.... If I were asked where I than apply the law. While this does the path to improve the judicial place the American aristocracy, I not appear to be a major problem infrastructure for Georgia’s future. should reply without hesitation that in Georgia today, it is a potential A judicial branch of government ... it occupies the judicial bench and concern to be addressed.15 that is independent, adequate- the bar.”). Consumer Pamphlet Series

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8 Georgia Bar Journal 3. Wilber W. Caldwell, THE ABOVE THE LAW (August 22, 2007, Dorsey, judge, Wilcox County COURTHOUSE AND DEPOT IN GEORGIA, 4:30 pm), http://abovethelaw. Magistrate Court; Hon. John 1833-1910: THE ARCHITECTURE OF com/2007/08/a-solution-to-the- Ellington, judge, Court of Appeals HOPE IN AN AGE OF DESPAIR (Mercer federal-judicial-pay-crisis-marry- of Georgia; Hon. Kathy Gosselin, 2001). into-money/. judge, Northeastern Judicial 4. THOMAS L. FRIEDMAN & MICHAEL 14. See, e.g., Meredith Hobbs, Equity Circuit; Kevin Weimer, Fellows MANDELBAUM, THAT USED TO BE US: partners reap benefits of firms’ 2010 LaBriola LLP; Linda Pierce, clerk, HOW AMERICA FELL BEHIND IN THE revenue growth, FULTON COUNTY Muscogee County Superior Court; WORLD IT INVENTED AND HOW WE DAILY REPORT, APRIL 4, 2011, Melanie Wilson, clerk, DeKalb CAN COME BACK (Farrar, Straus and http://www.dailyreportonline. County Magistrate Court; Rhonda Giroux 2011). com/Editorial/News/singleEdit. Payne, clerk, Douglas County 5. Daniel Klerman, Legal Infrastructure, asp?l=100327816132. Clerk of Court; Hon. Robert Judicial Independence, and Economic 15. See Christopher Zorn et al., Working V. Rodatus, judge, Gwinnett Development, UNIVERSITY OF SOUTHERN Class Judges, 88 B.U. L. REV. 829, 837 County Juvenile Court; Hon. Ron CALIFORNIA LAW SCHOOL LAW AND fig. 1 (2008) (showing that between Ginsberg, senior judge, Chatham ECONOMICS WORKING PAPER SERIES, 1983 and 2003 average profits County State Court; Sandy Lee, PAPER NO. 43 (2006). per partner at the fifty highest- executive director, CSCJ; Rep. 6. Richard A. Posner, Creating a Legal grossing American law firms more Stephanie Benfield, District 85, Framework for Economic Development, than tripled); Comment, Want Less Atlanta; Hon. Brenda S. Weaver, 13 WORLD BANK RES. OBSERVER 1 Ideology On The Federal Bench? Pay chief judge, Appalachian Judicial (1998). Judges More, 158 U. PA. LAW REV. Circuit; Carter Brown, clerk, 7. Lars Feld and Stefan Voigt, Economic 859 (2010). Walker County Superior Court; Growth and Judicial Independence: 16. The State Bar of Georgia Next Hon. Charles Auslander, judge, Cross Country Evidence Using a New Generation Courts Commission Clarke County State Court; Cindy Set of Indicators, 19 EUROPEAN J. OF includes: Kenneth L. Shigley, Mason, clerk, Columbia County POL.ECON. 497 (2003). president, State Bar of Georgia; Superior Court; Daniel W. Massey, 8. Paul G. Mahoney, The Common Law Sharon L. Bryant, chief operating clerk, Chatham County Superior And Economic Growth: Hayek Might officer, State Bar of Georgia; Tracy Court; Eric Joseph John, executive Be Right, 30 J. LEGAL STUD. 503 J. BeMent, court administrator, director, CJCJ; Hon. Robin Shearer, (2001); Richard A. Posner, A Reply to Tenth JAD; Bart W. Jackson, clerk, judge, Athens-Clarke County Some Recent Criticisms of the Efficiency Jones County Superior Court; Sen. Juvenile Court; Hon. Sara Doyle, Theory of the Common Law, 9 HOFSTRA Curt Thompson, District 5, Tucker; judge, Court of Appeals of Georgia; L. REV. 775 (1981). Hon. Grant Brantley, Senior Judge, Hon. Susan Tate, judge, Clarke 9. See CHIEF JUSTICE JOHN G. ROBERTS, JR., Superior Courts; Greg G. Allen, County Probate Court; Sen. Bill 2006 Year-End Report on the Federal Clerk, Forsyth County Superior Hamrick, District 30, Carrollton; Judiciary 1, 1-2,[hereinafter Roberts, Court; Sen. Jason Carter, District Daniel Hauck, Bryan Cave LLP; 2006 Year-End Report], available at 42, Decatur; Hon. Louisa Abbot, Hon. David Emerson, judge, http://www.uscourts.gov/ttb/ 2007- judge, Eastern Judicial Circuit; Douglas Judicial Circuit; David 01/2006/index.html (noting that the Margaret Washburn, Margaret Wall, clerk, Habersham County real value of a federal district judge’s Gettle Washburn, P.C.; Marla Superior Court; Hon. Diane Bessen, salary has dropped 23.9% since 1969). Moore, director, Administrative judge, Fulton County State Court; Cf. RICHARD A. POSNER, HOW JUDGES Office of the Courts; Patty Baker, Rep. Edward Lindsey, District THINK, at 171-72 (Harvard 2008) clerk, Cherokee County Clerk of 54, Atlanta; Hon. Harold Melton, (arguing that cost-of-living increases Court; Hon. Walter (Jim) Clarke, justice, Supreme Court of Georgia; will do more to retain top talent in judge, Gwinnett County Probate Hon. J. Stephen Schuster, judge, the judiciary than intermittent large Court; Hon. Lawton E. Stephens, Cobb Judicial Circuit; Jeffrey Ray raises). chair, chief judge, Western Judicial Kuester, Taylor English Duma LLP; 10. See ROBERTS, 2006 YEAR-END REPORT, Circuit; Hon. Ben Studdard, chief Hon. Lynwood D. Jordan Jr., judge, supra note 8, at 1. judge, Henry County State Court; Forsyth County Probate Court; 11. Id., at 2 (warning that the decline Carolyn Sullivan, clerk, Houston Hon. Nelly Withers, judge, DeKalb in the percentage of judges drawn County Superior Court; Dena County Recorders Court; Prof. from private practice will change the M. Adams, clerk, White County Sarah Shalf, Emory University nature of the federal judiciary). See Superior Court; Hon. Greg Poole, School of Law; Sheila Studdard, also, Jonathan L. Entin, Getting What judge, Cobb County Juvenile clerk, Fayette County Clerk of You Pay For: Judicial Compensation Court; Hon. Harold Benefield, Court; Hon. Steve Schuster, judge, And Judicial Independence, 2011 UTAH chief judge, Clayton County Cobb Circuit Superior Court; Tee L. REV. 25 (2011) State Court; Julius A. Powell Jr., Barnes, clerk, Supreme Court of 12. Gov. Sonny Perdue, Statement on Lindley, Powell & Rumph, PA; Georgia; William. M. Ragland Jr., Veto of House Bill 119, May 14, 2008, Hon. Michael Cielinski, chief Womble Carlyle Innovators at Law http://gov.georgia.gov/00/press/ judge, City of Columbus Municipal 17. Alexander Hamilton, THE EXAMINATION, detal/0,2668,78006749_78013037_113 Court; Peter Canfield, Dow Lohnes COM. ADVERTISER (New York), Feb. 26, 513787,00.html. Attorneys at Law; Hon. Robert E. 1802, as reprinted in XXV THE PAPERS OF 13. David Lat, A Solution to the Federal Turner, judge, Houston County ALEXANDER HAMILTON 525 (Harold C. Judicial Pay Crisis: Marry Into Money, Magistrate Court; Hon. Alec Glenn Syrett ed., 1977).

February 2012 9 From the YLD President

by Stephanie Joy Kirijan

Help Nourish Your Community

s the community service arm of the State The Georgia Food Bank Association is comprised of seven regional Feeding America food banks serving all Bar, the Young Lawyers Division (YLD) 159 counties with the help of more than 2,500 agency partners. Its members share food, resources and best is excited to be a partner in the inau- practices to maximize the fight against hunger through- A out the state. Information about local food banks can be gural Georgia Legal Food Frenzy, taking place April found at georgiafoodbankassociation.org. Georgia’s food banks rely on volunteers to fulfill 23 – May 4, 2012. Georgia their mission. Currently, more than 1.6 million Georgians are Attorney General Sam Olens “The Legal Food Frenzy will in need of food assistance. A large number of those in need is leading the initiative. Both provide food assistance to are children, senior citizens and working families. The Bill Bolling, founder and CEO low-income Georgians at the high unemployment rate in this state continues to drive a of the Atlanta Community record high demand for food most critical time of year.” assistance as those who have Food Bank and chairman lost their jobs struggle to put food on the table. Last year, of the Georgia Food Bank Georgia’s seven regional food banks distributed more than 77 million pounds of food through a network Association, and Danah Craft, executive director of of partner agencies and pantries. But more work is needed; there is a 35 to 40 percent increase in demand the Georgia Food Bank Association, are support- for food each year. Due to demand, the need for food donations is impor- ing the initiative. The program allows Georgia’s tant throughout the year, but food donations traditionally slow in late spring and early summer as families focus legal community to team up with food banks across on end-of-school activities and summer vacations. At the same time, food banks and partner agencies see an Georgia to provide food and other critical resources increased demand for food during this time because more than 702,000 children who depend on access to breakfast for low-income Georgians who suffer from hunger. and lunch at school are home for the summer months. The

10 Georgia Bar Journal Legal Food Frenzy will provide food under the leadership of event co- food bank and the results tabulated assistance to low-income Georgians chairs Kristi Wilson and Deepa in pounds with one point given for at the most critical time of year. Subramanian, and the Georgia each pound of food donated. Each The Legal Food Frenzy is mod- Food Bank Association. More than dollar contributed will count as four eled after a similar program in 30 young lawyers around the state pounds of food or four points. Virginia started by the Norfolk & are serving as city representatives to The YLD is honored to be a Portsmouth Bar Association in 1991. help make this event a success—and part of Georgia’s inaugural Legal Virginia held its first statewide the YLD is still recruiting volun- Food Frenzy. Olens has encour- event in 2007 and raised 600,000 teers. This two week food and fund aged the legal community to rise pounds of food for the Federation of drive is a competition among all to the challenge and help reduce Virginia Food Banks. Over the next Georgia law firms and legal orga- hunger in Georgia. It is as simple as four years, the event raised a total of nizations. In this friendly competi- picking up extra items while food 5.4 million pounds of food through tion, the law firm or legal organiza- shopping. The most needed items more than 180 participating firms tion that raises the most food will are: peanut butter, canned tuna, across the state. Georgia has the be awarded the Attorney General’s beans, fruits, vegetables and soups, potential to exceed these totals with Cup. Other awards will be given pastas, macaroni and cheese, low nearly 250 law firms in major cit- in small, medium and large size sugar cereals and 100 percent fruit ies across the state. To reach our firm categories. juice. Please consider donating goal, the YLD encourages each and The contest begins April 23 and these items and becoming a part of every law firm, legal department, ends May 4. Firms can register for the Legal Food Frenzy. law office, law school and court in and find the rules of the compe- Georgia to participate. tition online at georgialegalfood Stephanie Joy Kirijan is the The Georgia Legal Food Frenzy is frenzy.org. Awards are based on president of the Young Lawyers a partnership between the Office of pounds collected per employee, so Division of the State Bar of the Attorney General, the State Bar firms of all sizes are competitive. Georgia and can be reached at of Georgia Young Lawyers Division, Food items will be weighed at the [email protected].

City Representatives*

Albany Macon Kevin Armstrong Amanda Morris Atlanta Marietta / Cobb County Elizabeth Fite Darrell Sutton Nicole Leet McDonough Augusta Zach North Alex Brown Milledgeville Blackshear Hoganne Harrison-Walton Adam Ferrell Rome Brunswick Andrew Garner Ashley Browning Savannah Columbus Andrew Gorman Amy Walters T. Buckley Levins Conyers / Covington John Manly Michael Geoffroy St. Mary’s Decatur Kevin Yackel Yari Lawson Thomasville Eastman Raleigh Rollins Stephanie Burton Tifton Gainesville Hillary Sauls Dustin Marlowe Valdosta Hinesville Hansell Watt Carl Varnedoe Warner Robins Jonesboro Bo Sammons Andrea Alabi Waycross Lawrenceville Kristi Lowery Holly Hance *City representative volunteers are still needed.

February 2012 11 A Look at the Law

The Sophisticated User Defense: It’s Not Just for Drug Companies Anymore

by Andrew M. Thompson

he sophisticated user defense, also known

as the learned intermediary doctrine, has T been widely used by drug manufacturers in defending against failure to warn claims in products liability lawsuits.1 Although less well known, Georgia courts have also applied the sophisticated user defense outside the pharmaceutical drug context. Recently, in

Parker v. Schmiede Machine & Tool Corp.,2 the U.S. Court of Appeals for the 11th Circuit relied on the sophisti- cated user defense in affirming a district court’s grant of summary judgment to the defendants in a case in which employees at Lockheed Martin’s Marietta, Ga., facility alleged that they developed illnesses as a result of exposure to beryllium.

This article will discuss the origins of the sophisti- cated user defense in Georgia cases outside the phar- maceutical drug context, the application of the defense claims against manufacturers and suppliers of alleg- by the federal district court and 11th Circuit in the edly hazardous products. Parker case and the use of the defense in future toxic tort cases. Based upon the decisions of the district court The Origins of the Sophisticated and the 11th Circuit in Parker and the well-recognized User Defense Under Georgia Law basis for the sophisticated user defense in Georgia law, it is expected that practitioners will increasingly use In products liability and toxic tort lawsuits, plaintiffs the sophisticated user defense in defending toxic tort frequently allege that the manufacturer of a product

12 Georgia Bar Journal failed to properly warn the end user of the product’s risks or hazards. For a plaintiff to prevail on a claim for failure to warn under Georgia law, a plaintiff must show that the defen- dant had a duty to warn, that the defendant breached that duty and that the breach proximately caused the plaintiff’s injury.3 The “sophis- ticated user” or “learned interme- diary” defense relieves a product supplier of the duty to warn an ulti- mate consumer or user of a known hazard if there is an intermediary with knowledge of the hazard. In the pharmaceutical drug context, the rationale for the defense is that a 1'/ patient’s treating physician is in a 1RUZLWFK'RFXPHQW/DERUDWRU\ better position than the manufac- Forgeries - Handwriting - Alterations - Typewriting turer to warn the patient of a drug’s Ink Exams - Medical Record Examinations - “Xerox” Forgeries risks.4 Similarly, in the toxic tort context, the rationale for the defense )+DUOH\1RUZLWFK*RYHUQPHQW([DPLQHU5HWLUHG is that a sophisticated employer Court Qualified Scientist - 30+ years. Expert testimony given in with a history of using a particular excess of four hundred times including Federal and Offshore product or substance and specific knowledge of how the particular 1 17026 Hamlin Boulevard, Loxahatchee, Florida 33470 product or substance will be used ZZZTXHVWLRQHGGRFXPHQWVFRP in the employer’s production pro- Telephone: (561) 333-7804 Facsimile: (561) 795-3692 cess, is likewise in a better position than the product manufacturer to warn its employees of the product’s dangers. If a learned intermediary has actual knowledge of the dan- gers of a product or substance, yet would have taken the same course of action even with the information INVESTIGATIONS BUSINESS NEEDS PERSONAL NEEDS the plaintiff contends the manufac- turer should have provided, then courts typically conclude that the sophisticated user or learned inter- mediary defense applies and the plaintiff cannot recover.5

The defense appears to have been REAL ESTATE TECHNOLOGY INSURANCE first recognized in Georgia outside the pharmaceutical drug context in Eyster v. Borg-Warner Corporation,6 in which residents who were injured in a house fire brought a lawsuit against the manufacturer of an HVAC unit, alleging that the manufacturer failed to warn the installer/distributor of TRIAL NEEDS OFFICE NEEDS FINANCIAL NEEDS the HVAC unit of the risks asso- Locate vendors by name or the service they ciated with an aluminum-copper provide. The directory is your one-stop-shop connection in the unit. In affirming listing for companies that support the attorneys of the State Bar of Georgia.

the trial court’s grant of a directed Online Vendor ',5(&725< If you have any questions regarding the Vendor Directory, verdict in favor of the manufacturer please contact Natalie Kelly at [email protected] because the danger of an alumi- or 404-527-8770. num-copper connection was com-

February 2012 13 mon knowledge to those engaged in intermediary doctrine applies or supplier need not communicate the the installation of HVAC units, the that the causal link has been broken warning to the consumer or user, Court of Appeals of Georgia held and the plaintiff cannot recover.”11 can rely on the learned intermedi- that “[w]here the product is vended Since Eyster and Stuckey, feder- ary and any failure to warn claim to a particular group or profession, al courts in Georgia have granted against the supplier is barred by the the manufacturer is not required to summary judgment to manufactur- sophisticated user defense.16 warn against risks generally known ers based on the sophisticated user to such group or profession.”7 defense and those decisions have The Lengthy Saga of Twenty years ago, in Stuckey v. been affirmed by the 11th Circuit. the Parker and Berube Northern Propane Gas Company,8 For example, in Argo v. Perfection the U.S. Court of Appeals for the Products Company,12 the district Beryllium Cases 11th Circuit issued its first decision court applied the sophisticated user In 2004, a number of current and addressing the scope of Georgia’s defense in a lawsuit by the inter- former employees of Lockheed sophisticated user/learned interme- mediary’s employees who were Martin’s Marietta, Ga., facility filed diary defense outside the pharma- injured in an explosion relating to a putative class action against eight ceutical drug context. In Stuckey, an industrial heater. In granting defendants alleging that the plain- a plaintiff who was burned in a summary judgment to the heater tiffs and members of the putative propane gas explosion at a house manufacturer and a component- class had developed beryllium sen- owned by his parents sued a sup- part manufacturer, the court found sitization and/or “sub-clinical, cel- plier that had distributed propane that the plaintiffs’ employer was a lular and sub-cellular damage” from to a company that then sold and sophisticated industrial user that exposure to beryllium-containing delivered the propane to the house. knew or should have known how products utilized at the Lockheed The plaintiff alleged that the sup- to operate and maintain the product facility for more than 40 years.17 In plier failed to warn him about the it purchased and, “[u]nder Georgia two orders issued in March 2005 and tendency of the odorant added to law, when a product is sold to a March 2006, the federal district court propane gas to fade over time. In particular group or profession, a dismissed the plaintiffs’ claims for appealing the trial court’s denial of manufacturer has no duty to warn alleged sub-clinical, cellular and sub- its motion for directed verdict, the against the risks generally known to cellular damage, dismissed plain- propane supplier argued that the that group or profession.”13 tiffs’ claims for emotional distress seller’s actual knowledge of odor In addition, although the sophis- and for medical monitoring costs, fade satisfied the supplier’s duty ticated user defense is usually and concluded that the plaintiffs’ to warn. Although the 11th Circuit based upon an intermediary’s actual claims for beryllium sensitization affirmed the trial court’s denial knowledge, the defense can also did not constitute an actionable inju- of the supplier’s directed verdict be applied to protect a supplier or ry under Georgia law.18 The plain- motion because the propane sup- manufacturer from liability for fail- tiffs appealed the district court’s rul- plier was unable to establish that ure to warn if the intermediary is ings to the U.S. Court of Appeals for the seller of the propane had actual charged by law with knowledge of the 11th Circuit and in an April 2007 knowledge of odor fade, the court the hazards of a particular substance opinion, the 11th Circuit affirmed in Stuckey explained the scope of the or product. For example, in Stiltjes v. the district court’s dismissal of the learned intermediary defense under Ridco Exterminating Company,14 the plaintiffs’ claims for “sub-clinical, Georgia law.9 Relying on comment resident of an apartment complex cellular and sub-cellular damage” n to the Restatement (Second) of sued the manufacturer of a pesticide and for emotional distress and medi- Torts § 388 (1965), the 11th Circuit that had been supplied to a licensed cal monitoring costs, but reversed held that “a supplier’s duty to warn pest control operator for application the district court’s grant of summary a consumer does not turn on whether at the plaintiff’s apartment complex. judgment on the claims of the plain- a warning was actually given to an The Court of Appeals of Georgia tiffs who alleged beryllium sensitiza- intermediary, but on whether the held that the pesticide manufac- tion.19 Based on the 11th Circuit’s intermediary’s knowledge was suf- turer had no duty to warn the plain- 2007 opinion, the plaintiffs’ class ficient to protect the ultimate con- tiff because the manufacturer was allegations were defeated and the sumer.”10 In other words, and as entitled to rely on the laws charg- Parker case was limited to four plain- explained by subsequent courts, if ing licensed commercial applicators tiffs alleging beryllium sensitization a learned intermediary “has actual with knowledge of pesticide toxicity and/or chronic beryllium disease. knowledge of the substance of the alleged and safe methods of application.15 In 2008, the Parker case was consoli- warning and would have taken the Thus, in Georgia, if an intermediary dated for discovery purposes with same course of action even with the is charged by law with knowledge Timothy Berube v. Brush Wellman, Inc., information the plaintiff contends that a supplier would otherwise a very similar case involving eight should have been provided, courts have a duty to communicate to the additional plaintiffs alleging beryl- typically conclude that the learned eventual consumer or user, then the lium sensitization and/or chronic

14 Georgia Bar Journal beryllium disease from exposure to and without expert causation tes- if the plaintiffs here adduce beryllium-containing products at timony, the plaintiffs’ claims failed evidence from which the jury Lockheed’s Marietta facility. as a matter of law.21 could conclude that (1) the defen- After the close of over a year- dants possessed information, and-a-half of extensive discovery The 11th Circuit’s which Lockheed did not possess, in the Parker and Berube cases, the October 2011 Decision regarding a particular danger claims of the 12 remaining plain- associated with beryllium, and tiffs were limited to failure to warn In an Oct. 21, 2011, opinion, the (2) the defendants failed to warn claims against four remaining 11th Circuit affirmed the grant of Lockheed of that danger, then defendants20 who were alleged to summary judgment to the defen- summary judgment based on have supplied beryllium-contain- dants, discussed its prior decision the sophisticated user or learned ing products used at the Lockheed in Stuckey and the Georgia law intermediary doctrine would be Martin facility. In September 2010, applying the sophisticated user and inappropriate.23 the district court granted summa- learned intermediary defense and ry judgment to the four remain- explained that “the ‘sophisticated The 11th Circuit concluded that ing defendants based upon (1) the user’ or ‘learned intermediary’ the plaintiffs “fail to adduce any record evidence that the plaintiffs’ doctrine relieves a product manu- evidence to satisfy this standard” employer Lockheed Martin was a facturer or supplier of this duty to and that “the defendants have sophisticated user of copper-beryl- warn the ultimate user where there established that Lockheed is a lium and aluminum-beryllium is an intermediary with knowledge sophisticated user of beryllium and alloys and thus the plaintiffs’ fail- of the hazard.”22 The 11th Circuit a learned intermediary between ure to warn claims were barred declined to decide the specific stan- its employees and the manufac- under Georgia law; and (2) exclu- dard to apply in evaluating the turers of beryllium products.”24 sion of the plaintiffs’ causation record evidence on sophisticated Specifically, the court explained expert because the expert’s opin- user, but rather assumed arguendo that the Lockheed facility had pro- ions were scientifically unreliable that the following standard pro- duced aircraft containing beryllium under the prevailing standard for posed by the plaintiffs was a cor- parts for almost 60 years, had uti- admissibility of expert testimony rect statement of the law: lized a 1966 Department of Defense

February 2012 15 publication as a standard reference the sophisticated user defense in the plaintiff’s failure to warn claim guide regarding the dangers inher- toxic tort cases in Georgia in which against the suppliers of the prod- ent in the use of beryllium, had plaintiffs allege that the supplier or uct. In such a scenario, it will be issued its own “Safety & Industrial manufacturer of a product failed to important for courts to compare the Hygiene Standard” in 1983 that sufficiently warn the end user of the respective knowledge of the indus- addressed actions that could lead hazards of the product. Although try and the intermediary at compa- to the generation of beryllium dust, the applicability of the defense is fre- rable time periods and not fall into and employed a team of industrial quently very fact- and case-specific, an “apples to oranges” comparison hygienists and toxicologists who Georgia courts have made it clear of the current state of the art regard- had studied beryllium and its health that it is an issue that is appropri- ing a product’s hazards to what was effects and developed Lockheed’s ately resolved at the summary judg- known about the product during own internal warnings regarding ment stage based upon the record earlier time periods. the hazards of beryllium.25 evidence.30 In addition, by (1) reaf- Parties seeking to avoid applica- In addition, the 11th Circuit firming the principle that an inter- tion of the sophisticated user defense expressly declined the plaintiffs’ mediary need possess only general may also attempt to limit the impact invitation to rely on the decision knowledge of the hazards associ- of the Parker decision by arguing that in Genereux v. American Beryllia ated with a product, and (2) making the learned intermediary at issue Corp.,26 in which the 1st Circuit it clear that the relevant inquiry is in the case was Lockheed Martin, relied on Massachusetts law in con- focused on the intermediary’s actual one of the world’s largest defense cluding that a court considering a knowledge and not on the adequacy contractors who employed a team sophisticated user defense “must of the supplier’s warnings or on of toxicologists, industrial hygienists analyze ‘the particular dangers to the intermediary’s failure to act on and PhDs. However, the Georgia be guarded against’” and engage its knowledge, the decisions by the sophisticated user cases relied on by in a detailed fact-specific analy- 11th Circuit and the district court the 11th Circuit and the district court sis of whether the intermediary in Parker foreclose two relatively in the Parker decisions involved had sufficient knowledge of each common means by which plaintiffs significantly smaller intermediar- and every particular danger of the may seek to create disputed factual ies with substantially less obvious allegedly hazardous substance.27 In issues and avoid applicability of the sophistication, including the install- contrast, Georgia law regarding the sophisticated user defense. er/distributor of an HVAC unit in sophisticated user defense requires Although not expressly addressed Eyster and the installer of residential that an intermediary possess only by the courts in the Parker decisions, kitchen tiles in Whirlpool. Thus, the general knowledge of the dangers the case also demonstrates how the sophisticated user defense is by no associated with a product’s use.28 timing of when an intermediary means limited to cases involving In another important aspect of obtained its knowledge can impact large intermediaries. its decision, the 11th Circuit con- the application of the sophisticated cluded that a plaintiff cannot avoid user defense in a case involving a Conclusion application of the sophisticated user lengthy alleged exposure period. In In light of the fact that employ- defense simply by showing that the Parker, the plaintiffs alleged that they ees allegedly exposed to toxic sub- intermediary failed to take measures were exposed to beryllium for more stances or hazardous products in to protect adequately against a cer- than a 40-year period and the state the workplace are barred by the tain hazard; rather, plaintiffs must of the art of knowledge of beryllium Georgia’s Workers’ Compensation show that the intermediary lacked and its health risks had evolved Act from recovering damages from actual knowledge of the hazard.29 over that time, but the record evi- their employers, it is commonplace Thus, the inquiry is focused on the dence was clear that Lockheed was for such employees to name manu- intermediary’s knowledge; not on always at the forefront of possess- facturers, suppliers and distributors the adequacy of the intermediary’s ing knowledge regarding beryllium of allegedly hazardous products as implementation of its knowledge or and its health risks. Nevertheless, it defendants in toxic tort and prod- the intermediary’s failure to act on is not difficult to imagine a scenario ucts liability lawsuits. However, as its knowledge. in which a plaintiff could attempt to demonstrated by the 11th Circuit’s create a fact issue in regard to the decision in Parker and the Georgia The Future of the sophisticated user defense by argu- cases cited therein, summary judg- Sophisticated User ing that a particular intermediary ment is available to manufactur- was not a sophisticated user of a ers and suppliers based upon the Defense in Toxic hazardous product during the early sophisticated user defense when the Tort Cases portion of the plaintiff’s alleged plaintiffs’ employer possessed gen- The decisions by the district court period of exposure to the product eral knowledge of the hazards asso- and 11th Circuit in Parker demon- and thus the intermediary’s subse- ciated with the substance or product strate the continuing viability of quent sophistication should not bar at issue and thus any alleged failure

16 Georgia Bar Journal to warn by the manufacturer/sup- 4. McCombs v. Synthes, 277 Ga. 252, dismissed by the plaintiffs and 587 S.E.2d 594 (2003). Brush Wellman entered into a plier would not constitute the proxi- 5. Wheat, at 1363. confidential settlement. Lockheed mate cause of the plaintiff’s injury. It 6. 131 Ga. App. 702, 206 S.E.2d 668 (1974). Martin was one of the original is reasonable to expect that the use of 7. Id. at 670 (citing a New York case defendants, but once the plaintiffs’ the sophisticated user defense will and two treatises on products class claims were defeated and the increase as society becomes more liability and tort law). only plaintiffs were employees of regulated, which imputes knowl- 8. 874 F.2d 1563 (11th Cir. 1989). Lockheed Martin, the plaintiffs edge to the regulated community 9. Id. at 1568-1569. voluntarily dismissed Lockheed and creates more “learned interme- 10. Id. at 1568 (emphasis added). Martin because their claims against diaries,” and information regarding 11. Wheat v. Sofamor, S.N.C., 46 F. Lockheed were barred under the hazardous substances and products Supp. 2d 1351, 1363 (N.D. Ga. Georgia Workers’ Compensation becomes more readily available lead- 1999) (emphasis added). Act, O.C.G.A. § 34-9-11. 12. 730 F. Supp. 1109 (N.D. Ga. 1989), 21. Parker, et al. v. Brush Wellman, ing to more sophisticated users of aff’d, 935 F.2d 1295 (11th Cir. 1991). Inc., et al., 2010 WL 3730924 (N.D. hazardous products. 13. Id. at 1118-1119 (emphasis added) Ga. Sept. 17, 2010). (citing Eyster); see also Powell 22. Parker, et al. v. Schmiede Machine Andrew M. Duffryn Terminals, Inc. v. Calgon & Tool Corp., et al., 2011 WL Thompson is a partner Carbon Corp., 4 F. Supp. 2d 1198, 5025135 at *2 (11th Cir. October in the environmental 1203 (S.D. Ga. 1998) (“There is . . . 21, 2011) (citing Dozier v. Crane & and sustainability no duty to warn when the person Mach., Inc. v. Gibson, 644 S.E.2d using the product ‘should know 333, 335-36 (Ga. Ct. App. 2007)). practice group of of the danger, or should in using 23. Id. at *3. Smith, Gambrell & the product discover the danger’ 24. Id. Russell, LLP, in Atlanta. Thompson . . . . ‘Ordinarily, there is no duty 25. Id. also serves as an adjunct professor to give warning to the members 26. 577 F.3d 350 (1st Cir. 2009). at Emory University School of Law of a profession against generally 27. Parker, et al. v. Schmiede Machine & Tool Corp., et al., 2011 WL teaching a class in water law and known risks.’”) (citations omitted), aff’d, 176 F.3d 494 (11th Cir. 1999). 5025135 n.11 (11th Cir. October 21, environmental litigation. A large 14. 178 Ga. App. 438, 343 S.E.2d 715 2011); Genereux, 577 F.3d at 366. part of his practice involves (1986), aff’d, 256 Ga. 255, 347 S.E.2d 28. See Powell Duffryn Terminals, Inc. environmental and toxic tort 568 (1986). v. Calgon Carbon Corp., 4 F. Supp. litigation, and he represented one 15. 343 S.E.2d at 719. 2d 1198, 1203-04 (S.D. Ga. 1998) of the defendants in the Parker 16. Stuckey v. Northern Propane Gas (holding that, if a user knows or Co., 874 F.2d 1563, 1569 (11th Cir. should know of a general danger, and Berube cases. He may be 1989) (citing Stiltjes, 343 S.E.2d at then it is incumbent upon that contacted at athompson@sgrlaw. 719). user to investigate more particular com. Thompson would like to 17. Beryllium is a light metal with dangers); Whirlpool Corp. v. thank Steve O’Day of Smith, extreme hardness and a high Hurlbut, 166 Ga. App. 95, 101, Gambrell & Russell for his melting point that makes it very 303 S.E.2d 284, 288 (1983) (“It is not important whether he knew contributions to this article. desirable for use in a number of industries, particularly the the precise, physical nature of the aerospace industry and in the hazard presented by his ‘use’ of Endnotes production of nuclear energy and the product; it is sufficient if he 1. See Dietz v. Smithkline Beecham weapons. In certain individuals, is aware generally that the ‘use’ Corp., 598 F.3d 812, 816 n.2 (11th exposure to beryllium can result being made of the product is Cir. 2010) (affirming summary in beryllium sensitization, which dangerous.”) (emphasis added). judgment in products liability case is similar to an allergy and can be 29. Parker, 2011 WL 5025135 at *5 n.8 against pharmaceutical company a precursor to the development (“Even if the Plaintiffs could prove based on “Georgia’s long- of chronic beryllium disease, a that Lockheed did not employ the recognized, unwavering use of the respiratory illness. proper [beryllium] control devices, learned intermediary doctrine”). 18. See Parker v. Brush Wellman, Inc., that proof would not be enough to 2. The 11th Circuit’s decision was et al., 377 F. Supp. 2d 1290, 1296-97 rebut the evidence that Lockheed issued in two cases consolidated (N.D. Ga. 2005); and Parker v. Brush had actual knowledge of the need on appeal – Neal Parker, et al. v. Wellman, Inc., et al., 420 F. Supp. 2d for such controls.”). Schmiede Machine & Tool Corp., et 1355, 1361-62 (N.D. Ga. 2006). 30. See Parker, 2011 WL 5025135 at al., and Timothy Berube, et al. v. 19. See Parker v. Brush Wellman, Inc., *5; Powell Duffryn Terminals, 4 Schmiede Machine & Tool Corp., et al., 230 Fed. Appx. 878 (11th Cir. F. Supp. 2d at 1203-1204; Argo v. et al., Nos. 10-14703 & 10-14741, 2007) (concluding that an issue Perfection Products Co., 730 F. 2011 WL 5025135 (11th Cir. of fact existed regarding whether Supp. 1109, 1118-1119 (N.D. Ga. October 21, 2011). beryllium sensitization constituted 1989); Stiltjes v. Ridco Exterminating 3. Wheat v. Sofamor, S.N.C., 46 F. a current physical impairment). Co., 178 Ga. App. 438, 442, 343 Supp. 2d 1351, 1362 (N.D.Ga. 20. Out of the eight original S.E.2d 715, 719-20 (1986), aff’d, 256 1999). defendants, three were voluntarily Ga. 255, 347 S.E.2d 568 (1986).

February 2012 17 A Look at the Law

The Confirmation Resale Conundrum by Justin Lischak Earley and James B. Jordan

he hangover from the Great Recession contin-

ues to drag more and more Georgia properties T into foreclosure. As it does so, it has also worn away the veneer covering numerous rifts in the law that have long been buried just beneath the surface—some of them in existence since the Great Depression of the

1930s. One of those rifts, deriving from the so-called

“confirmation statute” of 1935,1 has become of increasing importance to legal practitioners and real estate investors

(both commercial and residential alike) as the markets seek to clear away their distressed inventories. It involves the most basic question of all property transactions: Is title marketable? Unfortunately, when it comes to fore- closures, the answer (unlike the question) is not so simple. recognized, we also propose that the problem has solu- tions. The basic premise of this article is that the law This article challenges the existing assumptions about should encourage the acquisition of distressed property what it means to have marketable title to a foreclosed so as to normalize the real estate markets and promote property in Georgia. Although we propose that the the transition of distressed properties back into healthy, problem is more pervasive than most have heretofore productive properties.

18 Georgia Bar Journal The (Title) Standard ues, it stands to reason that most od in which the foreclosing lender Answer recent foreclosures in Georgia have may file for confirmation has not involved properties that are not passed, there is no reason that the In 1935, with the nation mired in worth the amount of the debt that lender cannot file for confirmation, the midst of the Great Depression, encumbers them; that is, they are and thereby change the hypotheti- the general assembly passed what “underwater” and therefore pos- cal into the real. Further, because is now codified at O.C.G.A. § 44- sible candidates for a deficiency the caselaw indicates that “good 14-161. The statute provides, in judgment to the extent that the cause shown” for ordering a resale relevant part: debt encumbering the property is is almost entirely at the discretion recourse (whether with regard to of the superior court,10 from the When any real estate is sold the borrower or to a guarantor, perspective of the attorney certify- on foreclosure, without legal and whether fully, partially or con- ing title there is no way of ratio- process, and under powers con- tingently).6 Therefore, in the ordi- nally weighing this risk, and the tained in security deeds, mort- nary Georgia foreclosure (whether possibility of a confirmation resale gages or other lien contracts commercial or residential), there therefore seems to merit an excep- and at the sale the real estate exists the possibility that the lender tion to marketability as long as the does not bring the amount of may file a confirmation action, and 30-day statutory period for filing a the debt secured by the deed, upon doing so, the court could “for confirmation action has not passed. mortgage, or contract, no action good cause shown” order the prop- It is not clear why the authors of may be taken to obtain a defi- erty to be reforeclosed upon. the title standards chose to draw ciency judgment unless the per- Thus, whoever is holding title to the line where they did.11 Yet the son instituting the foreclosure the property while reforeclosure most likely reason is a practical one: proceedings shall, within 30 remains a possibility is holding If the title standard declared title to days after the sale, report the title that is unmarketable, because be unmarketable during any such sale to the judge of the superior there is no way to know that such time that a confirmation action was court of the county in which the person will not be divested of such even possible (and not just pending land is located for confirmation title by a superior court’s refore- or on appeal), then the title stan- and approval and shall obtain closure order if the lender seeks dards would be holding that no an order of confirmation and confirmation. Georgia title practi- title acquired by foreclosure at the approval thereon.2 tioners have long recognized this courthouse steps would be market- possibility. Accordingly, as stated able, because such a buyer would In determining whether to con- in Georgia Title Standard 17.3, “if be assuming the risk of divestiture firm a sale and permit a deficiency a confirmation is pending or sub- should there be a later confirmation judgment action against the debtor, ject to appeal, title is considered to action in which the judge orders “[t]he court . . . shall not confirm be unmarketable.”7 reforeclosure. Adopting such a pol- the sale unless it is satisfied that the The purpose of the title stan- icy statement would depress prop- property so sold brought its true dards is to serve as a set of guide- erty prices even further, as buyers market value on such foreclosure posts for assisting the title exam- on the courthouse steps would have sale,”3 and further, “the court shall iner in exercising legal judgment.8 to price the reforeclosure risk into also pass upon the legality of the Insofar as a marketable title is not their bids. notice, advertisement and regular- a perfect title, the examination From the perspective of the third- ity of the sale.”4 and certification of titles is very party buyer on the courthouse steps, The statute provides the judge much a risk-weighing art,9 and this risk is presumably catastrophic. faced with a confirmation action it is not fair to expect the title Such a person would pay cash (or three possible choices: he/she may standards to be perfect, any more cash equivalent) to the lender,12 (1) confirm the foreclosure and per- than it is fair to expect a title to only to have the entire value of mit the lender to pursue a defi- be perfect. Yet the title standard’s his or her investment (the prop- ciency judgment; (2) deny the con- choice to limit the unmarketabil- erty) stripped away by a court. In firmation and thereby preclude a ity of title in this realm only addition to being catastrophic, the deficiency judgment; or (3) ”order a to situations where a confirma- risk would be nearly impossible to resale of the property for good cause tion action is pending or on appeal underwrite. How could any buyer shown.”5 It is this last choice—the seems quite underinclusive, both at a public auction ever realisti- ability to order the property to be in light of logic and caselaw. cally determine whether the fore- reforeclosed—that creates the issue Logically, it does not make sense closing lender will thereafter file for that this piece explores. to limit the marketability problem confirmation against the foreclosed Because the pronounced eco- only to situations where there is borrower when both lender and nomic downturn that began in an ongoing confirmation action or borrower are likely total strangers 2007 has clobbered property val- appeal. As long as the 30-day peri- to the buyer? Further, even if such

February 2012 19 a person could weigh the risk of a person, bids at the sale with full the law permits a foreclosing lend- filing, how is it possible to deter- knowledge of the enactment of er to “undo” its foreclosure within mine ahead of time whether a (to [O.C.G.A. § 44-14-161(c)], which 30 days of the auction in certain be determined) judge would there- clearly contains the language enumerated circumstances, as long after order resale? The discount that “The court may, for good as the lender returns the purchase that third-party buyers at foreclo- cause shown, order a resale of price to the auction winner, with sure auctions would demand for the property.” And he is bound interest.19 With appropriate interest assuming such risks would be very by this language in the statute.15 representing the lost time value of steep indeed, and would risk driv- the third-party purchaser’s money ing down prices even further in a The language cited above from and non-economic costs (time, ener- negative feedback loop. Davie is undoubtedly dicta, but it is gy, etc.), there is no forfeiture of the In addition to being what seems dicta that is squarely on point. It is purchaser’s investment. like the underpinning of the title also dicta that fits within accepted Unfortunately, in this age of standard’s choice to limit unmar- legal understandings about notice. financialism, the fact patterns are ketability to situations where a It is hornbook common law that rarely so simple. What happens confirmation action is currently ignorance of the law is no excuse when (as is common with large- pending or subject to appeal, this for escaping its legal effect,16 and it scale commercial foreclosures) the unacceptable policy result has is black letter property law that all “lender” is a single-asset shell entity led many to conclude that a court persons are deemed to have notice that immediately funnels the fore- lacks the authority to order a resale of matters that are on the public closure sale proceeds up through where a third party (other than the records.17 Therefore, notwithstand- an entity chain where numerous foreclosing lender) has taken title ing nearly 80 years of sweeping parties (including perhaps govern- to the property at the foreclosure the problem under the legal rug, ment entities such as the FDIC) may auction.13 The basis of this theory the law as written provides that a have interests, rendering the funds seems to be a sort of mootness reforeclosure—with the attendant difficult (or perhaps impossible) to argument; the notion being that divestiture of title from an innocent recoup or trace? Further, it seems the court cannot grant effective third-party purchaser—is possible that there is now a small cottage relief because the lender (and not whenever a confirmation action is industry of confirmation-claim buy- the property) is what is before the possible, and no policy parade of ers who acquire loan documents at court in a confirmation action, and horribles can alter that language— a discount from lenders and then because the lender no longer has only the general assembly can. pursue confirmation and deficiency title to the property, there is no Accordingly, absent an amend- claims against debtors and guaran- way to conduct a reforeclosure. ment to the statute by the lawmak- tors. In such cases, both the proper- There are theoretical problems ing body, it is long past time that ty and the loan documents can end with this mootness argument,14 but Georgia real estate law faced up to up in the hands of third parties who they are not worth exploring fully this question and decided what to had no part in the original transac- here because there is an even bigger do about it. tion giving rise to the debt! In light problem with the mootness notion: of such fact patterns, how can any- it is not supported by the caselaw. The Guiding Principle: one justifiably take title to property In Davie v. Sheffield, the Court of Avoid Forfeiture at a foreclosure auction? Appeals of Georgia stated in lan- There are at least two analogical guage worth setting forth in full: In considering how courts, lend- hooks in the law that should protect ers, borrowers, guarantors and third party buyers from this cata- It might be argued that a title insurers should approach the strophic forfeiture risk. First is the third person may become the problem, it is worth bearing in ancient principle of subrogation. purchaser of the property where mind that courts should seek to The idea that a third-party buyer it is knocked off to the high bid- do equity, and what equity abhors can be subrogated to the rights of der at public auction, and that is not necessarily a divestiture, but the foreclosing lender dates back at the 1935 statute seems to con- rather a forfeiture.18 With that in least 100 years, before the security cern only the creditor and the mind, what happens when a court deed and the nonjudicial power of debtor (the maker and holder orders a reforeclosure after prop- sale became enshrined as the uni- of the deed to secure debt), and erty has come into the hands of a versal method of real estate lend- does not contemplate a re-sale third party? The simplest solution, ing in Georgia, and the idea in fact where such third person has of course, is that the court should remains a part of the Georgia code. become the purchaser. We can simply order the lender to return According to O.C.G.A. § 44-14-189, only say in reply that the pur- the sales proceeds to the third-party “A purchaser at a void or irregular chaser at public outcry, whether purchaser. There is some statutory judicial sale under the mortgage a party to the debt, or a third analogy for this approach in that shall succeed to all of the inter-

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Products sold and serviced by the State Bar of Georgia’s recommended broker, BPC Financial. The State Bar of Georgia is not a licensed insurance entity and does not sell insurance. ests of the mortgagee.” This statute all of its costs and expenses in Where a third party buys proper- simply codifies the application of conducting the reforeclosure. If no ty, and a bankruptcy or insolvency the equitable subrogation doctrine one outbids the original third-party court later concludes that the trans- from the late 19th century.20 purchaser at the reforeclosure auc- action was “constructively fraudu- It is worth pointing out, of course, tion, then there is no forfeiture lent” as regards the seller/debtor, that the statute expressly deals with as regards the original third-party such a sale can be unwound, but the judicial sales under mortgages, while purchaser, because it still acquires third-party purchaser is protected by the universal modern practice is the property, this time as the “de a lien on the property to the extent that foreclosure is conducted nonju- facto lender.” In the unlikely event that the third-party purchaser gave dicially under a security deed. On the that another third party chooses to value in good faith for the prop- one hand, the distinction between outbid the original third party at erty. Both federal law24 and Georgia the security instrument (mortgage the reforeclosure auction, there is law25 recognize this principle. vs. deed to secure debt) does not no forfeiture as regards the original Logically, third-party purchasers make a difference. Even the musty third party because it is entitled to should be protected under this prin- old authorities recognize that the collect the proceeds from the auc- ciple by means of a lien (superior principle (and thus the statute) tion up to its original price together to the lender’s security deed) to the should apply equally to security with its costs of conducting the extent of the third-party purchaser’s deeds and to mortgages.21 But with reforeclosure, with the excess acquisition price for the foreclosed respect to the form of foreclosure going to the original lender (which property. Because the lien primes (judicial vs. nonjudicial), the dis- accordingly reduces the borrower’s the security deed being refore- tinction does matter. The subroga- potential deficiency judgment). closed, this effectively converts the tion statute was written before the Although subrogation is a fine security deed being reforeclosed confirmation statute was written, tool for protecting third-party pur- into a second mortgage at which and therefore does not deal with the chasers against the forfeiture risk of bidders are bidding (if at all) for any added wrinkle of who (if anyone) is acquiring foreclosed property, it is equity that may exist in the proper- entitled to the deficiency judgment not perfect. First, the costs of con- ty above the amount of the original if confirmation is granted. If the ducting the reforeclosure become third-party purchaser’s bid at the third-party buyer was subrogated “baked in” to the remedy and can- original foreclosure auction. In what to all the rights of the lender in the not be recovered unless someone is likely to be the common outcome, event of a reforeclosure, then the outbids the original third-party the lender will be the only bidder at third-party purchaser is not only purchaser at the reforeclosure auc- the reforeclosure auction (at which entitled to conduct the reforeclo- tion.22 Further, the reforeclosure it is essentially bidding against itself sure, but is also entitled to the defi- remedy does not protect a third- to reduce its deficiency to a palat- ciency judgment if confirmation is party purchaser against the risk that able number to the confirmation granted. This is an unfair windfall the borrower goes into bankruptcy court).26 Assuming that the lender to the third-party purchaser and (whether voluntarily or involun- “wins” the reforeclosure auction, would essentially mean that every tarily) after the original foreclosure, equity should thereafter compel the foreclosure auction in which the but before the reforeclosure. In such lender to convey the property back court subsequently orders a resale an instance, it could be a signifi- to the original third-party purchas- was actually a public sale of the cant period of time before the third- er in satisfaction of the third-party loan documents, not simply the col- party purchaser can obtain relief purchaser’s lien.27 To the extent that lateral property. from the automatic stay. Indeed, a new third-party purchaser is the The equitable solution to this it is possible that in some circum- winner at the reforeclosure auction, should be that the third-party pur- stances the bankruptcy court will the original third party purchaser chaser is partially subrogated to the approve a plan of reorganization should be entitled to judicially fore- rights of the foreclosing lender, that reinstates the debt,23 thereby close its lien to acquire the property. up to the amount of money that trapping the third-party purchaser Accordingly, the original third-par- the third-party purchaser paid for in its position as “de facto lender” ty purchaser is protected once more the property. The result is that, if and tying up the third-party pur- from forfeiture of its investment. the court orders a reforeclosure chaser’s investment for what could Yet here too, the remedy is at confirmation, the third party be a significant period of time. not perfect. The original third-party who acquired the property should Bankruptcy/insolvency law con- purchaser faces the prospect of hav- be the one entitled to conduct tains its own method of protecting ing to judicially foreclose upon its and hold the reforeclosure auc- third-party purchasers, however, lien unless the lender is the winner tion. Such third-party purchaser which is the second analogical hook at the reforeclosure. Exercising such should be entitled to “credit bid” to which third-party purchasers of a remedy may have considerable the amount that it has previously foreclosed property can look for pro- costs. Further, in the unlikely sce- paid for the property, along with tection against the forfeiture risk. nario where a new third party is the

22 Georgia Bar Journal winner at the reforeclosure auction, What About Sales properties sell for their “true market the court may be faced with an of REO After the value.” But if third-party purchasers uncomfortable factual scenario in cannot show up at the courthouse that permitting foreclosure on the Foreclosure? steps with a reasonable degree of original third-party purchaser’s lien Thus far we have only consid- confidence that any investment they would wipe out the investment of ered the question of third parties make there will not be wiped out the new third-party purchaser made who buy on the courthouse steps. by acts wholly beyond their control, at the reforeclosure auction!28 Yet many sales of distressed prop- such persons will either not bid at all Accordingly, neither the subro- erty occur as “real estate owned” or will greatly discount their bids to gation method nor the equitable (REO) by the lender after it has account for the risk. Without com- lien method is inherently superior taken title to the property at fore- petitive bidding at the foreclosure to the other. Rather, they are prob- closure. In such a situation, there auction, it becomes impossible to ably best viewed as alternatives to seems less need for the protective obtain the “true market value” of be invoked, depending upon the methods set forth above, for at the property, and the confirmation facts at hand. Since subrogation is least two reasons: First, here it is statute becomes entirely self-defeat- probably the closest statutory rem- possible for the potential buyer to ing. But no such issues are found edy on this state-law issue, it stands underwrite the risk of a confirma- in the sale of REO—the lender has to reason that when a court orders tion resale. The buyer can wait already acquired the property, and reforeclosure at a confirmation for the 30-day confirmation filing its potential deficiency amount is hearing wherein the property was period to expire. The buyer can set. Although it is doubtless true sold on the courthouse steps to a also obtain a representation and that the law should encourage the third party, the court should order warranty in its contract that the sale of REO property to foster a that such third party is subrogated lender has not filed for confirma- return to healthy markets, it seems to the rights of the lender to the tion, and can obtain a contractual a bridge too far to try to apply the extent of the third-party purchaser’s covenant that the lender will not protective methods set forth above price paid at foreclosure, or, in the do so.30 to parties who are in a position alternative, is entitled to an equi- Second, the public policy ramifi- to protect themselves, and this is table lien priming the lender’s secu- cations here are less severe. The con- therefore a policy choice best left to rity title in the same amount.29 firmation statute exists to ensure that the legislature.

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February 2012 23 Conclusion James B. Jordan not all) of the debt, regardless of the circumstances in which the loan The confirmation statute, practice group leader for Sutherland’s real default occurred. Debt can also be untouched since 1935, deserves either fully- or partially-recourse attention from the legislature. There estate practice group, to a borrower or guarantor only is considerable anecdotal evidence has diverse and in certain circumstances, such as (to go along with the economic logic) extensive experience in when the borrower commits “bad that the cloud on title represented by all aspects of commercial real boy” acts enumerated in the loan a possible confirmation resale order estate and regularly represents documents. See Alfred G. Adams, Jr. & Jason C. Kirkham, The Real continues to derail or delay sales clients in purchase and sale, of distressed property in Georgia. Estate Lender’s Guide to Single lending, development, leasing and With respect to sales of REO this is Asset Bankruptcy Reorganizations, joint venture transactions for office, a pure public policy problem, but 8 DEPAUL BUS. & COM. L.J. 1, 7 (2009). A full treatment of the with respect to foreclosures at the industrial, retail, multifamily and subject is beyond the scope of this courthouse steps, it is a legal prob- mixed-use real estate projects located throughout the United article, though for purposes here lem whose existence is belied by it is important to bear in mind nearly 80 years of substantial silence States. He is regularly involved in that a deficiency judgment (and (save for some distressing dicta). Yet transactions involving partnerships, therefore a confirmation action as there are common-law solutions that limited liability companies, real a condition precedent to such a should give courts, title companies estate investment trusts and deficiency judgment) can only arise and foreclosure sale buyers comfort corporations. Jordan also serves as in circumstances where some form of recourse exists on the debt. in the interim. As long as a third chair of Sutherland’s retail team 7. Georgia Title Standard 17.3, party acquires the property at the and devotes a substantial portion courthouse steps in good faith and available at http://www.gabar. of his time to retail development org/public/pdf/SECTIONS/ for value, the law should respect and and leasing matters. He has realproplaw/TitleStandards.pdf. protect the valuable market-clearing 8. See Georgia Title Standard 1.1 cmt. function that such buyers serve by experience representing developers and retailers in retail product types (“Title Standards are primarily means of subrogation to the lender’s intended to eliminate technical rights and/or an equitable lien on ranging from freestanding facilities objections which do not impair the collateral property. to neighborhood and power-center marketability and some common developments to enclosed regional objections which are based on Justin Lischak Earley malls. Jordan also has experience in misapprehension of the law.”). is an associate in real estate transactions in foreign 9. See, e.g., Chicago Title Ins. Co. v. Investguard, Ltd., 215 Ga. App. Sutherland’s real jurisdictions, most notably Mexico. 121, 122, 449 S.E.2d 681, 682 (1994) estate practice group. (noting that a marketable title is not Many colleagues graciously contrib- He maintains a diverse a flawless title, but rather one that practice involving uted to this article, and special thanks “can again be sold to a reasonable are due to Leon Adams Jr., Danny C. nearly all of the real estate purchaser or mortgaged to a person Bailey and William H. Dodson II. group’s practice areas, of reasonable prudence”). 10. E.g., RTC v. Morrow Auto Ctr., Ltd., particularly those involving Endnotes 216 Ga. App. 226, 228–29, 454 S.E.2d Georgia law. His representative 1. 1935 Ga. Laws 381-82. 138, 140–41 (1995) (“[T]he statute experience includes counseling 2. O.C.G.A. § 44-14-161(a) (2002). does not define what constitutes clients in timber acquisitions and 3. Id. § 44-14-161(b). ‘good cause’ . . . . Discretion to grant dispositions, office and 4. Id. § 44-14-161(c). a resale is discretion to deny a resale. 5. Id. commercial leasing and real There are special reasons that the 6. Debt is fully-recourse to a borrower issues of ‘good cause’ and resale are estate finance and secured or guarantor when the borrower left to the ‘considerable discretion’ lending. Earley also works in the or guarantor must repay the debt . . . of the trial court . . . . [A]ppellate area of distressed real estate. His regardless of the circumstances in courts do not disturb that exercise representative experience which the loan default occurred. of discretion unless it is clearly, BLACK’S LAW DICTIONARY 955 (8th includes commercial foreclosures, patently, and manifestly abused.”) ed. 2004) (defining “recourse loan” (citation omitted). foreclosure-related litigation, as “[a] loan that allows the lender, 11. The authors have been unable to loan workouts and entity if the borrower defaults, not only to locate any legislative history or other restructuring. Before joining the attach the collateral but also to seek codified knowledge of the drafters’ firm, Earley clerked for Hon. judgment against the borrower’s debates. The authors have consulted James C. Dever III of the U.S. (or guarantor’s) personal assets.” with several prior members of the Debt can also be partially recourse, District Court for the Eastern title standards committee (including in that the borrower or guarantor at least one prior chair thereof), and District of North Carolina. must repay some portion (though in their experience, this question has

24 Georgia Bar Journal not heretofore been addressed by rights as the original mortgagee its potential $4,000,000 deficiency. the committee. himself.”); see also Ashley v. Cook, If it bids too high, it reduces its 12. O.C.G.A. § 9-13-166 (2006). 109 Ga. 653, 658, 35 S.E. 89, 91 (1900) deficiency, perhaps all the way to 13. See, e.g., Craig Pendergrast & (noting that the statute is based on zero. But if it bids too low, it risks Sara LeClec, Georgia Foreclosure and is a codification of the reasoning having its confirmation denied Confirmation Proceedings in Today’s of Dutcher). again—most likely for good this Recessionary Real Estate World: Back 21. See Ashley, 109 Ga. At 658, 35 S.E. time—because the property did to the Future, 16 GA. BAR J., Dec. at 91 (“The [code] section just cited not bring “true market value” at 2010, at 12-13 (“If . . . the property . . . is sufficiently broad to include the aggregated foreclosure sales. is sold to a third party prior to the judicial sales had in pursuance of 27. See, e.g., Westmoreland v. confirmation hearing . . . then the a judgment rendered setting up a Westmoreland, 280 Ga. 33, 35, 622 option of asking the court to allow special lien under the provisions of S.E.2d 328, 330 (2005) (Carley, J., a new foreclosure sale at a higher a security deed.”). concurring) (invoking the familiar price is obviously lost . . . .”) 22. For example, suppose the original maxim that “equity regards as done (endnote omitted). third-party purchaser paid $100,000 that which ought to be done”). 14. For example, given the obvious for a property on the courthouse 28. Indeed, this speaks to how unlikely cloud on title created by the steps. When reforeclosure is it is that any new third party reforeclosure possibility, it seems ordered, the original third- would show up to bid. It is worth a bit aspirational to conclude that party purchaser steps into the questioning whether equity should the land itself is not under the shoes of the lender (up to this compel the original third-party court’s jurisdiction in some respect $100,000 amount) and conducts purchaser to allow the new third in a confirmation action. Indeed, the reforeclosure, but in so doing party purchaser to pay off the the confirmation action is sui it spends $5,000 in advertising original third-party purchaser’s generis in Georgia law and “do[es] costs and attorneys’ fees. While lien and take the property. Such not fit neatly into the customary the original third-party purchaser a balance of harms is best left to classification of actions in personam should be entitled to “credit bid” individual fact patterns as they arise. or actions in rem.” Henry v. up to $105,000 at the reforeclosure 29. It is also worth questioning whether Hiwassee Land Co., 246 Ga. 87, 89, auction, unless someone actually the dicta in Davie v. Sheffield, 123 269 S.E.2d 2, 4 (1980); accord Wall v. bids greater than that amount, the Ga. App. 228, 180 S.E.2d 263 (1971), Fed. Land Bank, 240 Ga. 236, 237, $5,000 spent by the original third should be disavowed. If so, then 240 S.E.2d 76, 77 (1977). party purchaser is a cost that will the traditional protections given 15. 123 Ga. App. 228, 230, 180 S.E.2d never be recouped. to bona-fide purchasers may well 263, 265 (1971). 23. See 11 U.S.C.A. § 1124(2) (West be sufficient to give comfort to 16. Cf. O.C.G.A. § 13-1-13 (2010) 2004 & Supp. 2011). third-party purchasers, unless (“Payments of claims made 24. Id. § 548(c) (West 2004) (“[A] they had notice of the possible through ignorance of the law or transferee or obligee of [a consequences (whether by some where all the facts are known and fraudulent] transfer or obligation instrument affecting title or by there is no misplaced confidence that takes for value and in good actual notice that the lender and no artifice, deception, or faith has a lien on . . . [the asset] intends to file for confirmation). fraudulent practice used by the transferred . . . to the extent that It is also worth questioning other party are deemed voluntary such transferee or obligee gave whether, notwithstanding Davie, and cannot be recovered . . . .”). value to the debtor in exchange for a court should ever find “good 17. E.g., Gallagher v. Buckhead Cmty. such transfer . . . .”). cause shown” where a third-party Bank, 299 Ga. App. 622, 625, 683 25. O.C.G.A. § 18-2-78(d) (2004) purchaser may be harmed. Of S.E.2d 50, 53 (2009) (“A purchaser (“Notwithstanding voidability of course, Davie says what it says until of land is charged with constructive a transfer or an obligation under another court says otherwise. notice of the contents of a recorded this article, a good faith transferee 30. To the extent that the lender instrument within its chain of title.”) or obligee is entitled, to the extent breaches these contractual (quoting Va. Highland Civic Ass’n, of the value given the debtor for promises, this seems an example of Inc. v. Paces Properties, Inc., 250 the transfer or obligation to . . . the sort of “bad faith” that should Ga. App. 72, 74, 550 S.E.2d 128, 130 [inter alia] [a] lien on . . . the asset result in a denial of confirmation (2001)), cert. denied (Ga. Jan. 12, 2010). transferred . . . .”). without a resale. Cf., e.g., McDowell 18. E.g., Kiser v. Warner Robins Air Park 26. That is, suppose that the balance v. Regions Bank, 716 S.E.2d 638, Estates, Inc., 237 Ga. 385, 387, 228 due on the loan resulting in the ___, No. A11A1480, 2011 Ga. App. S.E.2d 795, 798 (1976) (“Equity seeks original foreclosure is $10,000,000. LEXIS 795, at *2 (Sept. 7, 2011) to relieve against forfeitures where If the original third-party (“Because the record plainly shows the rules of construction will allow.”) purchaser buys the property that Regions did not act in bad faith 19. See O.C.G.A. § 9-13-172.1 (2006). at foreclosure for $6,000,000, and that the property failed to sell 20. See Dutcher v. Hobby, 86 Ga. and holds a lien in this amount for its true market value, the trial 198, 200-01, 12 S.E. 356, 356–57 priming the original security court did not abuse its discretion (1890) (“We think the authorities deed, the lender at reforeclosure in ordering a resale.”). In the sufficiently answer this question is essentially playing a game of alternative, the protective methods . . . . [A] purchaser at a void judicial “I’m thinking of a number” with set forth above should be available sale, under foreclosure, has the same the confirmation court as regards to the third-party purchaser.

February 2012 25 GBJ Feature

2012 State of the Judiciary Address by Chief Justice Carol Hunstein

The State of the Judiciary address was originally given by Chief Justice Carol Hunstein on Thursday, Jan. 25, in the House Chambers at the State Capitol. The following is reprinted with her permission.

Lt. Gov. Cagle, Speaker Ralston, President Pro Tem Williams, Speaker Pro Tem Jones, friends in the legislative and executive branches, my fellow judges, ladies and gentlemen:

hank you for the opportunity once again to

present to this distinguished body the annual T State of the Judiciary address. This yearly tra- dition underscores our commitment to work together as co-equal branches of government in our common mis- sion of serving the citizens of this great state. Together we can achieve far more than we can alone.

I am privileged to report to you today our accom- plishments of the last year, the challenges we face and our plans for the future. I am honored that joining me are my friends and colleagues on the Supreme Court of Georgia—Presiding Justice George Carley, Justices Robert Benham, Hugh Thompson, Harris Hines, Harold Melton and David Nahmias. I want to pay spe- cial tribute today to my dear friend, George Carley—

now presiding justice but soon to be chief justice before Photo by Ashley G. Stollar he retires later this year after 32 distinguished years on Chief Justice Carol Hunstein speaks to special guests and members of the bench. We in the judiciary are going to miss this the Legislature during the State of the Judiciary address.

26 Georgia Bar Journal brilliant jurist and wonderful col- league. Also here are my friends and colleagues on the Court of Appeals of Georgia—including Chief Judge John Ellington, former Chief Judge Charles Mikell and the newly appointed Judge Michael Boggs. And we are honored to have in the gallery many judges from around the state. On behalf of all these judges and the judiciary, I want to sincerely thank you for the work that you do. We are deeply appreciative to you in the Legislature and to Gov. Deal for your interest in—and ongoing our work this past year on criminal try to pass a “two strikes, you’re support of—the judicial branch. justice reform. Nearly a year ago, I out” law. As a government, we Above the bench of the Supreme joined Gov. Deal, Speaker Ralston, must continue in our zeal to pro- Court of Georgia is a Latin phrase Lt. Gov. Cagle, Rep. Jay Neal and tect our citizens from violent and etched in stone. It says: “Fiat others in an unprecedented news repeat offenders. Murderers, rap- Justicia, Ruat Caelum.” conference where all three branch- ists, armed robbers and other vio- It means: “Let justice be done, es of government stood as one lent felons deserve stiff prison sen- though the heavens may fall.” in our pledge to reform Georgia’s tences. No one suggests otherwise. This pronouncement is the criminal justice system. But if we truly want to be tough essence of an independent judi- Through legislation introduced on crime, we must figure out how ciary. It stands for the notion that by Rep. Neal, the Special Council to reduce it. We now know that above all else, the rule of law is on Criminal Justice Reform being tough on crime is not enough. the foundation of our nation, and embarked upon a detailed analysis We must also be smart about crime regardless of anything else, we of Georgia’s sentencing and cor- and criminal justice policy. If we must protect it. That is our duty rections system. Our primary goal simply throw low-risk offenders as judges. It is our job to uphold was—and remains—the public into prison, rather than holding the law regardless of the out- safety of our citizens. them accountable for their wrong- come, regardless of public opinion, We began this process united in doing while addressing the source regardless of political favor. Our our conviction that our state can of their criminal behavior, they forefathers understood this prin- no longer afford to spend more merely become hardened criminals ciple through their embodiment in than $1 billion a year to maintain who are more likely to reoffend the United States Constitution of the nation’s fourth highest incar- when they are released. The bot- the three branches of government ceration rate and the nation’s No. 1 tom line is that all those mandatory and the separation of their powers. highest rate of people under some minimum sentences and get-tough “In order to form a more perfect kind of correctional restraint. prison measures did little to reduce union,” our United States and state We began united in our belief our three-year reconviction rate, constitutions creatively check each that warehousing non-violent which has held steady for the last branch’s authority and balance offenders who are addicted to drugs decade at nearly 30 percent. its limitations by guaranteeing its or are mentally ill does nothing to Two months ago, the Special independence while at the same improve the public safety. Indeed, Council on Criminal Justice Reform time ensuring the interdependence in the long run, it threatens it. published a report of its findings. of all three branches. And we began united in our com- The Council found that non-violent You write the laws; the governor mitment to come up with alterna- drug and property offenders repre- executes them; we interpret them. tives to incarceration for non-vio- sent 60 percent of all admissions to Simple but brilliant. In Georgia, at lent offenders that protect the pub- Georgia prisons. Between 1990 and this time in our history, our three lic safety by addressing the roots of 2010, their average time in prison branches of government share a crime and reducing recidivism. tripled. In 2010, we who are judges symbiotic relationship. Together as Georgia has a rich history of sent thousands of low-risk drug a whole, we can be stronger than being tough on crime. This state and property offenders to pris- our individual parts. did not just settle for a “three on—people who never before had Never has this relationship come strikes, you’re out” law. In 1994, been locked up. For those low-risk to greater fruition than through we became the first in the coun- offenders, the taxpayers spent $49 a

February 2012 27 day to house them in prison, versus ing their likelihood of reoffending. Wilson said: “If you want to make $16 a day for community treatment A national report issued just last enemies, try to change something.” at a Day Reporting Center or $1.50 a month by the U.S. Government But, as Dr. Martin Luther King Jr. day for probation supervision. Accountability Office found that said: “A genuine leader is not a The Special Council found that re-arrest rates for drug court grad- searcher for consensus but a mold- at least one in four who entered uates were 26 percent lower than er of consensus.” There are many Georgia’s prisons had mental health the rate of recidivism among com- consensus builders in this room, problems. In a special newspaper parison groups. The goal is to turn and I am confident in your ability series this past fall, The Atlanta lawbreakers from tax burdens into to bring about significant reforms. Journal-Constitution reported that taxpayers, and these courts have Gov. Deal urged the Special Georgia’s “jails have become the already proven their effectiveness Council to limit its focus to changes new asylums” with more mentally in doing that. that affect the adult prison popula- ill people locked behind bars than Yes, they may be more com- tion. I agree. We must take this one all those being treated in state psy- partmentalized, but they are more step at a time. But today, I would chiatric hospitals combined. As I efficient. Not only are they spe- like to plant a seed for your future speak to you today, up to a quar- cialized, but they free up judges consideration. In the last year, I ter of the thousands sitting in our whose dockets have been clogged have heard from many of our state’s county jails are mentally ill. That with drug crimes to deal with juvenile judges, who have the best is costing our taxpayers millions of other important criminal and civil interests of our young people and dollars, from which they get little cases, including the very impor- their families at heart. With state return on their investment. tant business disputes. cuts in mental health services, child The Special Council has looked The Council recommends welfare services, group homes and to other states and their suc- other crime-fighting measures for alternatives for children who do cesses—notably Texas and South your consideration. One involves not need to be behind bars, juve- Carolina—in recommending a offenders who are about to max out nile judges are too often faced with series of policy options that are of prison—many of whom have sending young people to locked now before you for your consider- spent the majority of their lives facilities to get some kind of treat- ation. Texas, for instance, invested locked behind bars. Rather than ment, or sending them home to get a sizable amount in diversion and push them out the prison gate with nothing at all. So today I offer you treatment centers, even though it a bus ticket, a travel kit and $25 in a postscript: The same reforms we faced a shortfall in prison beds. As cash, the Council recommends that are recommending to you for adults a result, that state estimates it has six months before their discharge must begin with children. avoided the need for two billion date, they be released to parole Perhaps you have heard the par- dollars in new prison construction, supervision to oversee their transi- able about the group of people who and for the first time in its his- tion back into society. were standing at a river bank when tory, Texas is actually closing a Minor traffic offenses also clog they watched an infant floating by prison. But most significantly, in our Georgia courts. Many of our and drowning in the river. One per- 2010, Texas posted its lowest crime citizens don’t realize that Georgia son promptly dove in and rescued rate since 1973. criminalizes minor traffic offenses, the child. But then another baby Following the examples of Texas entitling the offender to a trial by came floating by. And then anoth- and other states, Georgia’s Special jury if requested. Most states treat er, and another! Frantic, everyone Council recommends giving judges these minor traffic offenses as vio- jumped in to try to save the babies. more sentencing options by creat- lations penalized by a fine. The But they noticed one person was ing a statewide system of account- Council recommends in its report walking away. Accusingly, they ability courts, which include drug creating a new class of violations shouted, “Where are you going?” courts, mental health courts and for less serious traffic offenses so He answered: “I’m going upstream veterans courts. Our veterans have they are no longer treated as mis- to stop whoever is throwing babies been overseas sacrificing their lives demeanor crimes. This recommen- into the river.” and protecting our country. Many dation specifically excludes DUIs In Georgia, we are throwing come back changed by traumatic and other serious traffic offenses. children into youth prisons. They brain injury, chemical dependency There are many more recommen- are technically known as Youth and mental health conditions that dations, and I urge you to read the Development Campuses, but many can lead to erratic behavior and entire report. I join Gov. Deal in YDCs look, feel and sound just possible involvement in the crimi- saying this is an important first step. like adult prisons. Some of our nal justice system. But this is like steering a ship. children are serious, violent, repeat These accountability courts have Changing our course will take time. offenders, and we must protect a proven track record of holding And it will not come without cour- our citizens from them. But many offenders accountable while reduc- age and controversy. As Woodrow are behind bars because juvenile

28 Georgia Bar Journal judges have nowhere else to send 72 percent are convicted of a new spending 90 days here, another them; because no one intervened offense, depending on the state. few months there—often for minor before it was too late. Children who drop out of infractions. By the time she was 16, According to the Georgia school, get involved in drugs, Tasha had been in trouble so many Department of Juvenile Justice, develop mental health problems, times that she was committed to during the last three years, nearly are unruly, disrespectful and out the state. And this time, they sent two-thirds of the more than 10,000 of control without ever getting any her away for nearly a year. youths locked behind bars have kind of intervention are strong Tasha describes the YDC as a some kind of substance abuse candidates for becoming adult “miserable” place full of “miser- problem; more than one-third have criminals. We must face the real- able people wanting to do harm.” been diagnosed with mental health ity that for many of these children, Tasha says youth prison “doesn’t conditions. As with adults, we Georgia’s youth prisons are mere bring out the good in anybody.” have learned that our get-tough incubators for adult crime. In her own words, she says: “You tactics have failed to scare juvenile Tasha Hamilton was well on take away a little bit of bad with offenders straight. her way down that path to adult you. You come out knowing worse A recent study by The Annie E. prison. Tasha was 8-years-old when people than when you went in, and Casey Foundation found evidence her mother abandoned the family, you build relationships with them.” that our reliance on incarceration leaving her behind along with her But something happened to for young people provides no ben- baby sisters. Although their father Tasha that made all the differ- efit to public safety, does not reduce worked, they had little money and at ence. She had a probation officer, their future offending, wastes tax- times they slept in a car. Tasha grew Jennifer King, who genuinely cared payer dollars and perhaps worst up angry and defiant. By 11-years- and refused to give up on her. of all, exposes children to high old, she was smoking marijuana. Jennifer worked in the Douglas levels of violence and abuse. In By 12, she was hanging out with an County Juvenile Court under Jenny other words, our youth prisons are older crowd and drinking. By 13, she McDade, director of juvenile pro- a pipeline to adult prison. Consider was hooked on methamphetamine. grams. Together, they made sure this: Within three years of juveniles’ Tasha bounced in and out of Tasha got the help she needed. release from youth prison, up to Georgia’s YDCs and boot camps— Tasha got her G.E.D., she got drug

February 2012 29 treatment and ultimately she got Together, we can move this ship in State budget cuts, exacerbated a job. Without Jennifer, she says, a new direction. You have a challenge by county cuts, have resulted in it would have been easy for her ahead, and I recognize you have dif- court backlogs across Georgia. to graduate into adult prison. She ficult choices to make. I do not envy DeKalb County has five pending sadly wonders how many are in you. This year, as in the previous death penalty cases that it can- adult prison today who never had few years, you face what we hope is not move forward due to a lack a Jennifer in their lives—someone the end of a recession that has cost of resources. In some counties, who said to them when they were citizens their jobs, their homes and including DeKalb, domestic vio- teenagers: You can do it, when they their hope in the American dream. lence cases have been delayed at had no hope that they could. This year, as always, you are charged the very time Georgia inches clos- With the help of the Douglas with parsing out limited state funds er to the top in the rate of domestic County Juvenile Court system, to many worthy causes. violence homicides. According to under the able leadership of Judge The judicial branch provides a the most recent FBI data, Georgia Peggy Walker, Tasha was accept- core government function by pro- has gone from having the tenth- ed into West Central Technical tecting the public safety. We in the highest rate of domestic violence College. Today, she works full time judiciary are grateful to you for homicides to now having the sixth- in insurance, taking care of her two understanding that we are bound highest rate. One metro Atlanta daughters—as a taxpayer, not a by the Constitutions of our state and judge told me he worries about tax burden. Today, Tasha has that nation to uphold the rule of law and what could happen if a young hope in her life she once lacked. mete out justice in a fair and impar- mother found a locked courthouse And today, it’s still important to tial way to all who come before us. door on the day she needed a tem- Tasha that she continues to make As I have said before, our courts porary restraining order to protect her probation officer proud. are the emergency rooms of soci- her family from an abuser. Ladies and Gentlemen, it is ety: We must respond to all who Civil trials in particular are my honor to introduce to you come in front of us. being delayed in a number of Tasha Hamilton, Probation Officer Yet in Georgia, our courts con- jurisdictions. That is because our Jennifer King, Jenny McDade and tinue to struggle, putting justice Constitution guarantees the right Judge Peggy Walker. in jeopardy. to a speedy trial in criminal cases. www.gabar.org the Hardest Working Site on the Web Pay Your Dues Online Directories State Bar of Georgia Handbook z Join a Section z Young Lawyers Division z Information and Events z Consumer Pamphlet Series z Check CLE z Vendor Directory z Related Organizations z Casemaker z Cornerstones of Freedom z Conference Center z Public Information z Address Change z Letter of Good Standing z Ethics Make it your Homepage!

30 Georgia Bar Journal In Georgia, we are committed to making we are now close to 100 percent participation among attorneys in our courts as open and as accessible to the electronically filing their motions, briefs and applications to appeal. public as possible. Georgia’s judiciary has a nation- wide influence. Juvenile Judge Peggy Walker of Douglas County As a result, some judges have been heard; civil disputes must be is now in line to become president forced to delay civil matters. resolved. Courts are critical to pub- of the National Council of Juvenile We are all proud that Georgia lic safety. But in recent years, the and Family Court Judges in 2014; was recently ranked the fourth erosion of budgets in the face of Juvenile Judge Michael Kay of most business-friendly state in the growing caseloads has put us peril- Coweta County is the immedi- nation. We in the judiciary want ously close to being unable to fulfill ate past national president. This to do everything we can to protect our constitutional mandates. past summer, I was honored to that ranking by guaranteeing that The good news is we have never co-host the annual conference of businesses can resolve their dis- idly sat by. I report to you today the nation’s Supreme Court jus- putes in a timely fashion. that even in the face of a mighty tices, as well as the nation’s court In addition, divorce cases and struggle, your court system remains administrators. Fully 75 percent of dispossessory cases—in which sound, strong and stable. We are this country’s chief justices came to people have been evicted from holding the line, doing more with Atlanta where Gov. Nathan Deal their homes—have been affect- less and moving forward. graciously welcomed them. The ed by court delays from Jackson Georgia’s courts and our 1,500 theme of the conference was “A County to Houston County. In one judges are problem solvers. It was a World of Change: Courts and the Northeast Georgia court, people judge who first identified the need Media in 2011.” are now waiting up to four months for a drug court back in 1994, when In Georgia, we are committed to just to get a temporary hearing Bibb County created Georgia’s making our courts as open and as in a divorce—a situation that can first. Since then, the number of accessible to the public as possible. grow volatile when children are accountability courts has grown As someone once said, “One of involved. For a landlord, court to 100. We are greatly appreciative our greatest freedoms is the right delays can mean an additional two- to you for your support of these to know what our government is to-three weeks before a non-paying courts in the past. The need now doing.” I believe that openness and tenant is evicted and replaced with is to expand them statewide, along accessibility are critical to winning a paying tenant. For creditors, it with the necessary treatment facili- our citizens’ faith and confidence can mean an additional three-to- ties, staff and security required to in their justice system. four weeks before any collection make them effective. Our open-door policy extends efforts can be started. This year, we became one of to you. All of us who are judges As a superior court judge told the first states to move forward would be honored to have you me: “We are just one case away and create a new rule for the recu- visit our courts. Especially as you from a serious logjam if a major sal of judges, following the U.S. consider the options now before case is tried or defense attorneys Supreme Court’s landmark ruling you for reforming this state’s start filing speedy trial demands.” in the 2009 case, Caperton v. A.T. criminal justice system, a half- Today, Georgia’s entire judicial Massey Coal Company. Thanks to day visit to your local courthouse branch is funded with less than 1 the leadership of Rep. Ed Lindsey could help enlighten you about percent of the state budget. Georgia’s and my colleague Justice Harold the types of cases our judges face judiciary has never resisted sharing Melton, we have amended by order each day. About the challenges the burden of difficult economic of the Supreme Court of Georgia before them. And about the need times. The fact is we were lean the Code of Judicial Conduct to they have for sentencing options before they struck. At the Supreme ensure that judges disqualify them- other than prison alone. Also, you Court of Georgia—the state’s high- selves in any proceeding in which might consider attending a drug est court—until this year, we did their impartiality could be ques- court graduation. not even have a paid employee to tioned. Georgia’s rule has become Thank you for standing with us greet visitors or answer our phones a model rule and was recently as partners as we stand with you in the main office. Our small staff adopted, with minor changes, by in moving Georgia into a new age. of 51 is still fewer than we had a the American Bar Association. Thank you for your support of the decade ago, yet our caseload—like We also continue to make strides judicial branch. And thank you for that of other courts—has grown. in our efforts to switch from paper your service to this great state. Justice is not a privilege; it is to the electronic filing of court docu- God bless you. And God bless a right. Criminal cases must be ments. At the state Supreme Court, the state of Georgia.

February 2012 31 GBJ Feature

Military Legal Assistance Program Aid Tops 500 in Two Years by Norman E. Zoller

hen the State Bar of Georgia began its

Military Legal Assistance Program W (MLAP) in December 2009, former State Bar President Jeff Bramlett (2008-09) noted suc- cess would be measurable when one soldier had been helped. The program was designed to connect a cadre of 700 volunteer lawyers throughout the state with military service members and veterans seeking help with a variety of legal problems.

Over the past two years, more than 500 connec- tions have been made, a remarkable achievement and a testament to Georgia lawyers who not only devote their expertise and energy to their private clients, but who also work for the public good. And as increased Photo by Sarah I. Coole dedication and commitment has been demanded of our service members stationed here in Georgia and leaders with deployed service members inspired the throughout the world, this legal assistance helps offset State Bar’s program. DoD invited a contingent of civil- the sacrifices they and their families make. ians, including Georgia attorney and Navy veteran A 2007 Department of Defense (DoD) fact-finding Jay Elmore, to meet face-to-face with service members mission connecting American private-sector opinion and commanders deployed across the Middle East

32 Georgia Bar Journal “A program that was two years in the making and now two years in operation, MLAP is achieving precisely the goals and objectives its founders had in mind. All Georgia lawyers should be proud of it and what it does for our vets and service members. Their service and sacrifice is great.” — Kenneth L. Shigley, president, State Bar of Georgia

and the Horn of Africa. At the end to translate Jeff Bramlett’s vision cases have been family law mat- of the mission, DoD challenged into operational reality.” ters (and regrettably about half each civilian participant to return of those have been divorces) and to their private-sector lives and How does MLAP help? about a quarter of all legal help ponder the question: “What can be What kinds of services are pro- has been provided to veterans. done to support those serving in vided and who is eligible to receive (Approximately 774,000 veterans harm’s way?” them? Basically, help is furnished reside in Georgia.1) Elmore shared this challenge on any civil matter according to the Phone calls and email messages with his law partner, Jeff Bramlett, following eligibility criteria: are received every day, mostly who was about to become presi- from active-duty service mem- dent of the State Bar of Georgia. „ Active duty service members bers stationed at one of the 10 In response, Bramlett appointed a having pre- or post-deployment military installations located in committee of lawyers chaired by related legal matters. Georgia.2 Additionally, phone Charles Ruffin to study the need „ Veterans separated from the calls and messages have been and to develop a blueprint for service with a service-connect- received from service members on recruiting, training and coordinat- ed disability who seek legal active duty in Afghanistan, Iraq, ing Georgia volunteer lawyers to assistance directly related to Kuwait, United Arab Emirates, meet the legal needs of service that disability. Japan, Italy, Germany and the members and veterans. „ Representation for the spouse Azores, to cite a few. Service “Enthusiasm for the concept of an active duty service mem- members calling from abroad among Georgia lawyers was infec- ber where the legal issue affects have reportedly heard about tious,” recalls Bramlett. “The spe- the well-being of the family as the program by word-of-mouth cial committee looked at how other a whole and the interests of the from their colleagues serving in bar associations across the U.S. spouse and service member are Georgia. The word has gotten were—or were not—addressing the aligned. around and continues to spread. legal needs of service members and „ Eligible clients who physically Although two recent cases are their families. We realized early on reside in Georgia and require both unusual in their complexity that Georgia was well-positioned legal assistance where jurisdic- and the challenges they presented, to pioneer a unique and compre- tion lies in the state or federal the outcomes have proven particu- hensive program to deliver excel- courts of Georgia. larly satisfying for the volunteer lence to clients who had earned „ Legal assistance to National lawyers and their clients. our gratitude and who needed our Guard members, Reservists and In the first, grandparents from help.” In June 2009, after months military retirees, as attorney Fayette County sought MLAP’s help of thorough investigation, the State resources allow. in June 2010, following the sudden Bar’s Board of Governors approved death in Tennessee of their son-in- the creation and funding of the Although the program does not law, a retired Army combat medic. Military Legal Assistance Program. provide direct assistance to indi- Their daughter had died two years Norman Zoller was retained as the viduals accused of a crime, it does earlier and the eldest of her four coordinating attorney, and the for- help direct them to public defend- children had been living with them mal program was launched in late ers, legal assistance offices or to in Georgia since her death. At the 2009. Upon establishment of the local bar associations. time the grandfather made contact program, MLAP Chair Ruffin said, The results so far have been grat- with the MLAP office, he and his “The Bar has been considering the ifying. As noted above, through wife had been granted guardianship mechanism for an effective pro- the end of 2011, more than 500 ser- of all four children and were then gram to address unmet legal needs vice members and veterans—our living with them. As they began to for many months, and we now look “clients”—have been connected look into what VA and other ben- forward to this program being able with lawyers. About half of those efits the children might be entitled,

February 2012 33 and the State Bar of Georgia’s Board of Governors approved last year a special award to be presented annually to one outstanding law- yer. This recognition, called the Marshall-Tuttle Award, is named in honor and memory of both Army Corporal Evan Andrew Marshall, a soldier from Athens, Ga., who was killed in action in Iraq in 2008, and U.S. Circuit Judge Elbert Parr Tuttle, who served in the Army for 30 years, was a founding partner of a major Atlanta law firm and served as a federal judge for 43 years. Tuttle also provided pro bono legal servic- es to many people, including John

Photo by Stephanie J. Wilson Johnson, a young Marine. In 1938, (Left to right) Will A. Gunn, general counsel, U.S. Dept. of Veterans Affairs, Washington, D.C.; the U.S. Supreme Court held in the Patricia A. Hooks, regional general counsel, U.S. Dept. of Veterans Affairs, Atlanta; Hon. William landmark and fundamental rights P. Greene Jr., U.S. Court of Appeals for Veterans Claims, Washington, DC; and Norman E. Zoller, coordinating attorney, Military Legal Assistance Program, State Bar of Georgia. case, Johnson v. Zerbst, that counsel must be provided for all defendants they promptly realized they needed ber of continuing legal education in federal criminal trials who cannot an attorney whose expertise includ- programs with Georgia Institute of afford to hire their own attorneys. ed military, veterans’ and Social Continuing Legal Eduation and with The first recipient of this award was Security benefits. the Bar’s Military/Veterans Law Drew N. Early, Lynch & Shewmaker MLAP helped find them that Section. Some have focused on the LLC, Atlanta. During 2010, Early attorney,3 and to the grandparents’ “Nuts and Bolts of Military Law” and provided legal assistance without great relief, the children are now with the accreditation process that charge to several service members eligible to receive future education- qualifies a lawyer to practice before and veterans, in addition to teach- al assistance, as well as monthly the U.S. Department of Veterans ing and mentoring other Georgia and other VA benefits. Issues still Affairs. Last year more than 200 law- lawyers about military law to com- unresolved continue to be shep- yers attended the VA accreditation plement their civilian practices. herded through the system by their program and this past November Early is a 21-year active duty Army volunteer lawyer. nearly 200 more attended. Speakers veteran and a graduate of the U.S. In the second case, through at that symposium included Will Military Academy at West Point the efforts of an MLAP volunteer A. Gunn, general counsel of the and the Georgia State University attorney,4 a Vietnam veteran from Veterans Administration and (for- College of Law, cum laude. Fannin County suffering from post mer Chief) Hon. William P. Greene “Drew Early has been an exem- traumatic stress disorder (PTSD) Jr. of the U.S. Court of Appeals for plar of what the State Bar hoped and a traumatic brain injury has Veterans Claims. this program would become,” says received a long overdue award of Immediate Past President Lester Ruffin. “He not only has provided $25,000 in back pay for an Agent Tate has observed, “Members of expert advice to our state’s service Orange claim, as well as monthly the armed services stand ready to members, but he has also been an disability benefits for his PTSD, protect the rights and liberties of important adviser to our commit- which had been denied many Americans whenever and wherever tee and to other lawyers through- times before. Still being addressed needed. Wouldn’t it be ironic—and out Georgia on the technicalities of is his claim for relief from the gov- wrong—if we, as lawyers, were military law to help ensure that the ernment’s attempts to recover an unwilling protect the rights and lib- rights of service members and veter- alleged overpayment of $124,000 in erties of soldiers, sailors, marines ans are protected. His commitment Social Security benefits, which he and airmen in American court- to the program and to his fellow ser- received after his VA benefits were rooms? I think “returning the favor” vice members has been exceptional.” terminated. His inability to have to those who have given so much is that demand reversed on his own what MLAP is all about.” A Significant Statistic had left him distraught.5 In recognition of the important So what kind of measurable Besides receiving and processing service provided by the lawyers success is the program achiev- cases every day, MLAP has also participating in this program, the ing? It has obviously exceeded sponsored or co-sponsored a num- MLAP Committee recommended Jeff Bramlett’s early requirement

34 Georgia Bar Journal 7KH0XUS K\+RXVH3URMHFW brought to you by the: <ĞĞŶĂŶ͛Ɛ.LGV Foundation

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However, the work is far from done. The Keenan's Kids Foundation has also taken on a substantial mort- gage and is counting on your future support to help retire that debt. At the Keenan’s Kids Foundation, we HOW YOU CAN HELP: believe that a strong, loving and secure family is easily the most important thing in shaping a child's sense of Big or small, every little the world and the most influential factor in developing bit goes a long way in helping the Murphy family them into adults they will become. John and Jeanette continue to nurture and care for their children in have devoted their lives to the care of their children the way every child deserves.

and the well being of their family. Now we are asking x $10 can help the Murphy's buy school sup- our extended family to help us finish what John and plies for their 23 special needs children Jeanette started over 20 years ago. x $25 can help buy seeds to grow the produce central to growing children's dietary needs x $50 will help maintain the family pool and yard used for physical therapy x $100 will help with manage the cost of vita- mins, prescriptions and medical attention for the family. To Donate, Volunteer, or for More Information: x ǁǁǁ͘ŵƵƌƉŚLJŚŽƵĞƐƉƌŽũĞĐƚ͘ĐŽŵͻǁǁǁ͘ŬĞĞŶĂŶƐŬŝĚƐĨŽƵŶĚĂƚŝŽŶ͘ĐŽŵͻ x 404-223-ŬŝĚƐ;ϱϰϯϳͿͻŽĨĨŝĐĞΛŬĞĞŶĂŶƐŬŝĚƐĨŽƵŶĚĂƚŝŽŶ͘ĐŽŵͻ ͻDĞŵďĞƌƐƐŽĐ͘ŽĨ^ŵĂůů&ŽƵŶĚĂƚŝŽŶƐͻ to help at least one service mem- Forts Benning, Gillem, Gordon, children might be entitled and Stewart; Hunter Army to continuing dependent ber. More precisely, slightly more Airfield; Air Force Bases: Dobbins, compensation; than one affirmative connection Moody, and Warner Robins; Naval „ The children might be eligible between lawyer and military/vet- Submarine Base at Kings Bay; to receive some survivor eran client is being made each day. and the Marine Corps Logistics benefits from the father’s For those who know a service Base, Albany. On September 15, military retirement income; member or veteran who needs legal 2011, Army Forts Gillem and „ The children might be eligible assistance, or if, as an attorney, you McPherson formally closed as a to educational benefits would like to participate in this result of decisions in 2005 by the currently and in the future; program, please contact us at either Base Realignment Alignment and „ The children might be eligible 404-527-8765 or normanz@gabar. Closure Commission (BRAC). to receive tri-care medical and org. Many attorneys who have 3. H. Lane Dennard Jr., retired partner dental insurance; at King & Spalding, Atlanta, already stepped forward know the „ The children might be eligible Georgia, along with other lawyers satisfaction that comes from helping to receive continued Social and staff at King & Spalding, who Security benefits; a service member or veteran. To all helped with this case. „ Help is needed with the those who have volunteered, we are 4. M. Scott Holcomb, State completion and processing grateful and we say thank you. To Representative and General of significant quantity of the rest of you, we say, “join us.” Counsel for J.P. Turner & documents and paperwork Company, LLC, Atlanta, Georgia. received from the VA; 5. As noted in the main text Norman Zoller has „ Other benefits from the state above, one case involved devoted the majority and federal agencies; what are the grandparents of four those and what are the sources? of his 36-year legal grandchildren, who were the At the time this case was received career to public children of their late daughter and in June 2010, the representation service. He served as his late son-in-law, a retired Army was in three main areas: Sergeant First Class. the first clerk of court (a) Claim before the VA for In early 2008, the children’s mother for the U.S. Court of Appeals for survivorship rights and other (the grandparent’s daughter), the 11th Judicial Circuit from rights for the children. The died as a result of cancer. Her attorney assisted the client in 1981-83, when he was named oldest daughter had been with preparing the VA claim which circuit executive, a post he held the grandparents since then. The was filed in October 2010. The until his retirement in 2008. remaining three children lived claim included a Dependency with the father in Tennessee. He Previously, he managed the and Indemnity Compensation was a career soldier (hereafter the Hamilton County, Ohio, courts for (DIC) claim and a significant “father”) and had retired. In late issue with this part of the claim nearly a decade. Zoller holds April 2010, the children returned is whether the father’s death bachelor’s and master’s degrees home to find their father had was service-connected. To (in public administration) from the passed away in his bed. support this claim, the attorney The grandparents then had a University of Cincinnati and a law requested the VA file and guardianship of the four children degree from Northern Kentucky medical records from the VA granted by the probate court in a University. He is admitted to Regional Office in Nashville, Georgia county. The daughter and the VA Regional Hospital in practice in Georgia and Ohio. An the children’s father were divorced Nashville, and the VA Records Army veteran, Zoller served almost at the time of both their deaths. Management Center in St. Louis. seven years on active duty as a The father left no will. (b) Survivorship rights to The grandparents sought help field artillery officer, including two retirement pay. As noted, the from an attorney experienced with tours of duty in Vietnam, first with father was a retired sergeant military and veterans benefits, first class and was receiving Special Forces and then with the including the following matters: retirement pay at the time 82nd Airborne Division in response „ Understanding as to what of his death. The attorney to the Tet Offensive in 1968. He benefits the children were assisted the client in filing a entitled; also served 15 years in the claim for survivorship rights National Guard and Army Reserves „ Guidance as to how to claim with the Defense, Finance and as a judge advocate officer. these benefits and secure them Accounting Service (DFAS). for the future. The veteran Soon thereafter, the client Endnotes father was maintaining life received an initial check for insurance benefits for the 1. Table 520, Veterans by Selected each of the children. children; Period of Service and State: 2010, (c) Servicemember’s Group Life „ The father was 95 percent U.S. Census Bureau Statistical Insurance (SGLI). The father’s disabled as a result of his Abstract. discharge record indicated service, and as a result, the 2. The military bases include Army that he had $400,000 of SGLI

36 Georgia Bar Journal coverage, and the grandparents these matters are still being Regional Office. Although such believed that the father addressed by the attorney with claims may ultimately not have had made the children the SGLI officials. much monetary value per se, a beneficiaries of this insurance ruling in the family’s favor, for policy. However, when the In July 2011, a favorable decision example, could be presented to grandparents contacted SGLI, was received from the VA OSGLI as substantial support for they were advised that the Philadelphia Regional Office on the the life insurance claim. father had not converted this DIC claim. As was subsequently As a result of this work by the insurance to coverage under confirmed, the deceased veteran attorney and others in his firm, the Veterans Group Life was a combat medic who fought the grandparents have written to Insurance Program (VGLI). in Iraq and the Balkans. He the State Bar saying, in part, . . . Through contacts with the subsequently died of an overdose of “This (VA award) was the most Office of Servicemember’s medications. The attorney argued important issue for the children Group Life Insurance and and the VA agreed that the death because among other things, it research, the attorney was service-connected because provides educational assistance determined that issues the medications were being taken . . . . This was a major win for remained that might yet enable for pain associated with service- Dennard and his group and the grandparents to secure connected physical injuries, as provided (my wife) and I with a the proceeds of this policy. well as the anxiety associated with big sigh of relief regarding college The attorney has argued that service-connected Post Traumatic expenses . . . . On behalf of (the a Disability Extension of two Stress Disorder (PTSD). Based on grandchildren, [we], want to thank years should apply because the the determination that the death was you, the State Bar of Georgia veteran was totally disabled service-connected, the VA granted Veterans group and Dennard for at the time of his discharge. the four children Dependency and the untold hours that went into Although the OSGLI agency Indemnification Compensation securing this decision by the VA. rarely grants a disability (DIC) (a monthly benefit), as well as The services provided by the extension, the attorney Dependents’ Education Assistance Military Services Program are vital believes there is a fairly strong (GI Bill) for the four children. in assuring that U.S. veterans and argument that it should apply Other aspects of this claim remain their families receive benefits due in this case. Consequently, before the VA Philadelphia them under law.”

Judging Panel Volunteers Still Needed for 2012 State Finals Tournament Saturday, March 17 Gwinnett Justice Center, Lawrenceville At least two rounds of HSMT judging panel experience or one year of coaching experience required to serve at state. Volunteer forms at www.georgiamocktrial.org under the “Volunteers” section

Contact the Mock Trial Office with questions: 404-527-8779 or toll free 800-334-6865 ext. 779 Email: [email protected]

February 2012 37 Bench & Bar

Kudos > Parker, Hudson, Rainer & Dobbs > announced that Eric W. Anderson was elected for induction as a fellow of the American College of Bankruptcy. The college is an honorary professional and educational association of bankruptcy and insolvency professionals and plays an impor- Prucino Powell Russell Segal tant role in sustaining professional excellence. Kilpatrick Townsend & Stockton LLP announced > The Supreme Court of Georgia named that Co-Managing Partner W. Scott Henwood of Hall, Booth, Diane Prucino was named Smith & Slover to the Board to a 2011 “Most Powerful and Determine Fitness of Bar Applicants. Influential Woman” by the Henwood is serving a five-year term. Ridenour Blackburn National Diversity Council. The board is composed of seven attorney Prucino, one of only 15 women honored, was members and three non-attorney members and is praised for being a “professional cream of the crop” responsible for evaluating the character and fitness and for her ability to gracefully balance work and of applicants to practice law in the state of Georgia. life demands. Partner Judy Powell was presented with the > The American Intellectual Property Association “Excellence in Intellectual Property Award” by elected Elizabeth Ann “Betty” Morgan as secre- the Association of Corporate Counsel (ACC) tary. Morgan is the managing shareholder of The Intellectual Property Committee. Moving forward Morgan Law Firm P.C., a trial boutique in Atlanta. the award will be known as the “Judith Powell The firm concentrates on intellectual property liti- Excellence in Intellectual Property Award” and gation and business torts. Additionally, Morgan is will be presented each year to the individual who experienced in alternative dispute resolution and is brings excellence to the IP community through the a registered mediator in Georgia. ACC IP Committee. Partners Dean Russell and Debbie Segal, > The American Bar Association and Sally Ridenour, counsel, were recognized announced the second edition of RICO by the Atlanta Bar Association at the annual State by State: A Guide to Litigation Celebrating Service Luncheon. The luncheon under the State Racketeering Statutes honored lawyers in the legal community who by John E. Floyd, a partner at Bondurant have preformed extraordinary pro bono represen- Mixon & Elmore LLP. This fully updat- tation and service. Atlanta Legal Aid recognized ed edition is a comprehensive new collection and Russell with its Pro Bono Volunteer of the Year analysis of state RICO statutes and caselaw current Award for his decade of providing representa- through at least Sept. 30, 2010. It also sets forth the tion to low-income grandparents who adopt the statutes and caselaw in each of the 33 states, as well grandchildren in their care. Atlanta Volunteer as the Commonwealth of Puerto Rico and the Lawyers Foundation recognized Ridenour and Territory of the Virgin Islands, which have enacted Segal for five and 20 years of participation, statutes based upon the federal Racketeering respectively, in its Saturday Lawyers Program. Influenced and Corrupt Organizations statute. Stan Blackburn, a partner in the firm’s Atlanta office, received the Boys & Girls Clubs of America On the Move National Service to Youth Award for his volun- teer service as a board member and officer of Boys In Atlanta & Girls Clubs of Metro Atlanta, Inc. During his > Locke Lord LLP announced the addition 30-year tenure on the board, Blackburn has been a of Kenneth B. Franklin as an associate champion of the Boys and Girls Club movement. in the litigation department of its Atlanta He has served on various board committees of Boys office. Franklin is a member of both & Girls Clubs of Metro Atlanta and as its corporate Locke Lord’s business litigation and secretary and played an integral role in fostering arbitration and construction practice the merger of Boys Clubs of Metro Atlanta, Inc., groups. The firm is located at Terminus 200, Suite and Metro Atlanta Girls Clubs, Inc., that created the 1200, 3333 Piedmont Road NE, Atlanta, GA 30305; current organization. 404-870-4600; Fax 404-872-5547; www.lockelord.com.

38 Georgia Bar Journal Bench & Bar

> ber of the bankruptcy and financial restructuring team. The firm is located at 1100 Peachtree St., Suite 2800, Atlanta, GA 30309; 404-815-6500; Fax 404-815- 6555; www.kilpatricktownsend.com.

Laura R. Anthony joined Elarbee, Wedge Kent Crouch Cooper > Thompson, Sapp & Wilson, LLP, as an Smith Moore Leatherwood LLP added associate. Anthony’s practice focuses five new attorneys to its Atlanta office. on representing private employers in Robert B. Wedge, G. Marshall Kent labor and employment law litigation Jr., R. Milton Crouch, J. Allen Cooper and on providing preventive training and Tracy A. Marion joined the firm. and other counseling services to employers facing All were most recently with Shapiro labor and employment issues. She is also a member Marion Fussell Wedge & Martin, LLP, in of the complex litigation group. The firm is located Atlanta. Wedge and Kent joined as partners, at 800 International Tower, 229 Peachtree St. NE, Crouch and Cooper joined as of counsel and Atlanta, GA 30303; 404-659-6700; Fax 404-222-9718; Marion joined as an associate. The firm is located www.elarbeethompson.com. at Atlantic Center Plaza, 1180 W. Peachtree St. NW, Suite 2300, Atlanta, GA 30309; 404-962-1000; > Ford & Harrison LLP announced the Fax 404-962-1200; www.smithmoorelaw.com. addition of Adam C. Keating as an asso- ciate in the firm’s Atlanta office. Keating’s > practice is focused on the representation of employers in labor and employment disputes. The firm is located at 271 17th St. NW, Suite 1900, Atlanta, GA 30363; 404-888-3800; Fax 404-888-3863; www.fordharrison.com.

Lasky Stevens Thompson Wolf

Burr & Forman LLP announced that intellectual Proliability Lawyer Malpractice Program: property attorney Michael Lasky joined the firm as Administered by Marsh U.S. Consumer, a service of Seabury & Smith, Inc. of counsel in the Atlanta office. Prior to joining the firm, Lasky was a partner at the national IP firm of Merchant and Gould for 22 years and then the Your practice doesn’t face founder of Altera Law Group, an IP boutique, the same risks as a big law firm where he remains principal owner. with hundreds of attorneys. In addition, three new associates joined the firm in the business and litigation practice areas. So why pay for a malpractice plan Tyler P. Stevens practices in the firm’s corporate that’s focusing on those big firms? section where he is a member of the banking and According to statistics, 78% of with off-the-shelf plans that simply real estate practice group. Ryan D. Thompson attorneys are in a solo practice or a don’t fit their real-world risk. firm with just two to five lawyers.* practices in the firm’s creditors’ rights and bank- Now you can set up reliable ruptcy practice group. Katie E. Wolf is a member Yet many malpractice insurance protection that’s tailored to your of the firm’s commercial litigation practice group. companies would rather focus firm with the Proliability Lawyer on bigger firms with hundreds of Malpractice Program. The firm is located at 171 17th St. NW, Suite 1100, attorneys … leaving smaller firms

Atlanta, GA 30363; 404-815-3000; Fax 404-817- ’ Ready to see how economical your 3244; www.burr.com. coverage from Proliability could be? Underwritten by Liberty Insurance Underwriters Inc. (a member company of Liberty Mutual Group) > Kilpatrick Townsend & Stockton LLP announced 1-800-365-7335, ext. 6444 that Frank L. Bigelis was Sharon Ecker, Vice President ’ elected partner. Bigelis is a www.proliability.com/lawyer member of the infrastruc- *“What Percent of the Population Do Lawyers Comprise?” Wisegeek, www.wisegeek.com, viewed 1/3/12. AR Ins. Lic. #245544 CA Ins. Lic. #0633005 ture and construction team d/b/a in CA Seabury & Smith Insurance Bigelis Levin Program Management in the Atlanta office. 56497 ©Seabury & Smith, Inc. 2012 Matthew Levin joined as a partner. Levin is a mem-

February 2012 39 Bench & Bar

> Nelson Mullins Riley business litigation and privacy law. Hardy practices & Scarborough LLP in the areas of commercial real estate, business announced that Erika Birg transactions, tax planning and controversies. joined the firm as a partner. Brooking’s practice concentrates in the areas of Birg focuses her practice on labor and employment, insurance and personal commercial litigation, alter- injury. The firm is located at 260 Peachtree St. NW, Birg Shin native dispute resolution, Suite 2700, Atlanta, GA 30303; 404-688-6800; business torts, contract disputes, trade secrets, com- Fax 404-688-6840; www.swtlaw.com. puter fraud and non-compete matters. Tai Hyun “Alex” Shin joined the Atlanta office as an associate. > James, Bates, Pope & Spivey, LLP, announced the He practices in the areas of debt finance and restruc- addition of Alec N. Sedki and Michael A. Dunn turing. Shin also focuses on Korean companies in the as of counsel joining the firm’s litigation practice. automotive industry. The firm is located at 201 17th The firm is located at The Lenox Building, 3399 St. NW, Suite 1700, Atlanta, GA 30363; 404-322-6000; Peachtree Road NE, Suite 1700, Atlanta, GA 30326; Fax 404-322-6050; www.nelsonmullins.com. 404-997-6020; Fax 404-997-6021; jamesbatesllp.com.

> Davis, Matthews & Quigley, P.C., > Parks IP Law LLC announced the relocation of their announced that Mindy Pillow joined the offices. The firm is located at 730 Peachtree St. NE, firm as an associate in the domestic rela- Suite 600, Atlanta, GA 30308; 678-365-4444; Fax 678- tions and family law group. She repre- 365-4450; www.parksiplaw.com. sents clients in all aspects of family law, including divorce, legal separation, pater- In Columbus nity, legitimization, child custody, adoption and pre- > Whitney C. Johnson joined Page, Scrantom, nuptial agreements. The firm is located at 3400 Sprouse, Tucker & Ford, P.C., as an associate. She Peachtree Road NE, Suite 1400, Atlanta, GA 30326; represents individuals and corporations in the areas 404-261-3900; Fax 404-261-0159; www.dmqlaw.com. of general corporate matters, taxation, acquisitions and dispositions of businesses, and estate planning > Baker, Donelson, Bearman, and administration. The firm is located at 1111 Bay Caldwell & Berkowitz, PC, Ave., Third Floor, Columbus, GA 31901; 706-324- announced that H. Fielder 0251; Fax 706-243-0417; www.columbusgalaw.com. Martin and J. Ben Shapiro joined the firm’s Atlanta In Macon office. Martin and Shapiro, James, Bates, Martin Shapiro > both of whom joined Baker Pope & Spivey, Donelson as senior counsel, were previously LLP, announc- named partners at Shapiro Fussell Wedge & ed the addition Martin, LLP, in Atlanta. The firm is located at of associates Monarch Plaza, Suite 1600, 3414 Peachtree Road Doroteya N. Wozniak Holton Gilmore NE, Atlanta, GA 30326; 404-577-6000; Fax 404-221- Wozniak and 6501; www.bakerdonelson.com. Corrie E. Holton to the firm’s litigation practice and Christopher E. Gilmore to the commercial real > estate and transactional practice. The firm is located at 231 Riverside Drive, Macon, GA 31201; 478-742- 4280; Fax 478-742-8720; jamesbatesllp.com.

In Nashville, Tenn. Burr & Forman LLP announced that Joseph Cutter Hardy Brooking > James M. McCarten joined the firm as a Schulten Ward & Turner, LLP, announced that partner in the Nashville office. McCarten William M. Joseph joined the firm as a partner. brings more than 27 years of experience Turner’s practice focuses on domestic and interna- as a tax attorney, with particular focus on tional taxation, mergers and acquisitions and joint business succession planning and trusts ventures. Corey N. Cutter, Brandon C. Hardy and and estates. The firm is located at 700 Two American Leslie A. Brooking joined the firm as associates. Center, 3102 W. End Ave., Nashville, TN 37203; 615- Cutter’s practice areas include commercial and 724-3200; Fax 615-724-3290; www.burr.com.

40 Georgia Bar Journal Bench & Bar

In Overland Park, Kansas located at 500 E St. SW, Washington, DC 20436; 202- > Lathrop & Gage LLP announced the 205-2000; www.usitc.gov. promotion of A. Justin Poplin to part- ner status. Poplin’s practice focuses on In Mexico City, Mexico transactional and litigated intellectual > Littler Mendelson, P.C., joined with a prominent property matters, with emphasis on group of Mexican attorneys to open two offices in patent issues in a wide range of tech- Mexico establishing the leading labor and employ- nologies. The office is located at 10851 Mastin Blvd., ment specialty firm in the country, Littler, De la Suite 1000, Overland Park, KS; 913-451-5100; Fax Vega y Conde, S.C. The office is located at Mario 913-451-0875; www.lathropgage.com. Pani 150, Col. Lomas de Santa Fe, Del. Cuajimalpa de Morelos, México D.F., C.P., 05300; +52 55 4738 In Washington, D.C. 4258; Fax +52 55 8000 7191; www.littler.com. > The U.S. International Trade Commission (USITC) announced that Hon. Thomas Bernard Pender In Monterrey, Mexico became an administrative law judge. Pender man- > Littler Mendelson, P.C., joined with a prominent ages litigation, presides over evidentiary hearings group of Mexican attorneys to open two offices in and makes initial determinations in the agency’s Mexico establishing the leading labor and employ- investigations involving unfair practices in import ment specialty firm in the country, Littler, De la trade. Prior to joining the USITC, Pender served as an Vega y Conde, S.C. The office is located at Blvd. administrative law judge in the Office of Disability Díaz Ordaz 140, Torre II, Piso 20, Col. Santa María, Adjudication and Review with the Social Security Monterrey, C.P., 64650; +52 81 8865 4340; Fax +52 81 Administration in Richmond, Va. The USITC is 8865 4839; www.littler.com.

How to Place an Announcement in the Bench & Bar column

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

February 2012 41 Office of the General Counsel

Partial Retainer

by Paula Frederick

“ r. Sparks, I have already told you

that I’m not going to take any action M on your behalf until you pay the bal- ance of my retainer,” your associate says into the tele- phone. “Your Answer is due next week. If you want me to file it, I’m going to need that last $500 before then.

Otherwise, you’re on your own,” he finishes, hanging up with a satisfied smirk.

“What was that all about?” you ask. “Just another one of those clients who thought he could get away with paying a partial retainer,” your associate responds. “He put his divorce on layaway, just like a Christmas present at Sears. He’s been pay- ing me $500 every few weeks, trying to work up to my $5,000 retainer. Meanwhile, his wife filed first! He’s got an answer due Friday and he still owes me $500.” “So what are you going to do if he doesn’t come up with the last $500? Let the case go into default?” harm as a result. One common example is the client who “I explained from the get-go that I don’t work for appears at his preliminary hearing and tells the judge free,” your associate announces. “If he can’t afford me he has a lawyer. In reality, the lawyer has refused to I don’t want to take the case.” enter an appearance until he collects the balance of the “Some would say you already have,” you respond. retainer. The client might miss a deadline while accu- Nothing in the Georgia Rules of Professional mulating the fee, or might assume that the lawyer will Conduct prohibits a lawyer from accepting partial protect the client’s interests before the retainer is paid in payment of a fee. That practice can actually be helpful full. A “layaway” situation can also drag on indefinitely for people who cannot afford to pay all at once, or who and the delay might be harmful to the client’s interests. cannot manage to save the full retainer on their own. For your own protection, if you are holding a poten- But taking the position that representation does not tial client’s money you need to monitor their legal situ- start until the retainer is paid in full is another matter— ation. If you are monitoring the situation you may as one that can be risky. well admit that you are representing the client. At the very least, a person who makes a partial pay- It might be easier to let the client save the retainer ment of a fee is a potential client to whom a lawyer on his own. owes certain obligations. Clearly the lawyer has an ongoing obligation to avoid conflicts with other poten- Paula Frederick is the general counsel for tial clients. Since the partial payment is an unearned the State Bar of Georgia and can be fee, the lawyer also has an obligation to promptly reached at [email protected]. refund the money at the potential client’s request. The potential risk comes when the client claims he has relied on the lawyer to take action and has suffered

42 Georgia Bar Journal

Lawyer Discipline

Discipline Summaries (Oct. 15, 2011 - Dec. 14, 2011)

by Connie P. Henry

Voluntary Surrender/Disbarments 25, 2011, Fuller pled guilty in the Superior Court of Cobb County to four counts of forgery. Keesha Marie Brown Atlanta, Ga. Paul T. Robinson Admitted to Bar in 2005 Atlanta, Ga. On Oct. 17, 2011, the Supreme Court of Georgia dis- Admitted to Bar in 1974 barred Keesha Marie Brown (State Bar No. 088440). The On Nov. 7, 2011, the Supreme Court of Georgia dis- Court addressed seven matters involving Brown. In the barred Paul T. Robinson (State Bar No. 610675). The fol- matter involving her conviction, while working as a pub- lowing facts are deemed admitted by default: Robinson lic defender in 2008 Brown agreed with an inmate, who became ineligible to practice law on Sept. 1, 2008, because was not her client, to accept calls from him with the costs of his failure to pay his State Bar dues. He was placed of the calls being routed to another number. In regard on suspension for not complying with continuing legal to the other matters, while working in private practice education requirements effective May 21, 2009, and was Brown abandoned six clients from whom she had accept- also placed on administrative suspension for a period of ed fees, accepted representations that required travel one year, effective July 29, 2009. Robinson represented a when she did not have reliable transportation, accepted client in a real estate matter during the time he one representation in which she had no competence or was suspended. experience, moved out of state and did not withdraw from cases pending in court, failed to return the clients’ Douglas Liddell Kirkland files and failed to return unearned fees. Ocala, Fla. The special master considered in mitigation Brown’s Admitted to Bar in 1993 statements that she did not have adequate financial On Nov. 7, 2011, the Supreme Court of Georgia resources, she had traveled to Wisconsin to care for her disbarred Douglas Liddell Kirkland (State Bar No. ailing father and she experienced her own health issues. 423655). Kirkland was disbarred in Florida for making The special master also considered that Brown had no improper withdrawals from his attorney trust account, prior discipline and seemed remorseful. In aggravation with the largest shortage amounting to approximately of discipline, the special master noted the pattern of mis- $93,000. He also inappropriately filed trust accounting conduct and the existence of multiple offenses. certificates showing compliance with the rules. The Court accepted the special master’s findings but also found that Brown failed to take responsibility for Karen P. Cleaver-Bascombe her actions and blamed others for her errors in judg- Baltimore, Md. ment. Considering the record as a whole, the multiple Admitted to Bar in 1995 offenses, the seriousness of the offenses, the importance On Nov. 7, 2011, the Supreme Court of Georgia of protecting the public from attorneys who are not disbarred Karen P. Cleaver-Bascombe (State Bar No. qualified to practice law due to incompetence and the 129760). Cleaver-Bascombe was disbarred in the need for public confidence in the profession, the Court District of Columbia for submitting a fraudulent determined disbarment to be the appropriate sanction. voucher seeking compensation for service she knew she had not rendered. David Michael Fuller Kennesaw, Ga. Antonio L. Toliver Admitted to Bar in 1980 Decatur, Ga. On Nov. 7, 2011, the Supreme Court of Georgia Admitted to Bar in 2001 accepted the petition for voluntary surrender of license On Nov. 30, 2011, the Supreme Court of Georgia of David Michael Fuller (State Bar No. 280100). On May accepted the petition for voluntary surrender of license

44 Georgia Bar Journal of Antonio L. Toliver (State Bar No. 714222). On Sept. 12, 2011, Toliver pled guilty in the Superior Court of Fulton County to one count of homicide by vehicle in the first degree and two counts of serious injury by vehicle, all of which are felony counts.

Suzanne Marie Himes Ocala, Fla. Admitted to Bar in 1990 On Nov. 30, 2011, the Supreme Court of Georgia disbarred Suzanne Marie Himes (State Bar No. 355601). The State Bar of Georgia filed a Notice of Reciprocal Discipline after Himes was disbarred in Florida for failure to cease the practice of law after her indefinite suspension from practice in Florida.

Steven F. Freedman Atlanta, Ga. Admitted to Bar in 1973

Thomas C. Sinowski Atlanta, Ga. Admitted to Bar in 1982 On Nov. 30, 2011, the Supreme Court of Georgia disbarred law partners Thomas C. Sinowski (State Bar No. 649126) and Steven F. Freedman (State Bar No. 275350). In approving a special master’s report and a Review Panel’s report in the consolidated case, the Supreme Court found the lawyers violated Standards 13 (paying others to secure clients) and 26 (sharing fees with non-lawyers) of Bar Rule 4-102 (d). The Supreme Court concluded the lawyers did not violate Standard 12 (soliciting clients through direct personal contact) because the lawyers did not person- ally solicit the clients, though the runners who they paid did. The Supreme Court concluded the lawyers should be disbarred because their scheme, which the court observed was highly organized and very lucrative, involved paying runners at least $276,000 to solicit more than 1,300 clients. The Supreme Court also observed that the lawyers were motivated by greed and were not remorseful. Justice Nahmias was disqualified. Judge Kathlene F. Gosselin sat in for Justice Nahmias and concurred. Justice Hines and Justice Melton dissented. Suspensions Michael Boyd Seshul Jr. Atlanta, Ga. Admitted to Bar in 2002 On Oct. 17, 2011, the Supreme Court of Georgia accepted the petition for voluntary discipline of Michael Boyd Seshul Jr. (State Bar No. 617061) and suspended him until March 31, 2013, with conditions for reinstatement. On March 31, 2009, Seshul entered a guilty plea in the Superior Court of Fulton County to one felony count of aggravated assault and one misde- meanor count of battery.

February 2012 45 Lawyer Assistance need Program %QPſFGPVKCN help *QVNKPG ? 800-327-9631 Lawyers Recovery Meetings:6JG.CY[GT#UUKUVCPEG2TQITCO JQNFUOGGVKPIUGXGT[6WGUFC[PKIJVHTQOROVQRO(QTHWTVJGT KPHQTOCVKQPCDQWVVJG.CY[GTU4GEQXGT[/GGVKPIRNGCUGECNNVJG %QPſFGPVKCN*QVNKPGCV

he Lawyer Assistance Program (LAP) 2011-12 RTQXKFGUHTGGEQPſFGPVKCNCUUKUVCPEG Lawyer Assistance VQ$CTOGODGTUYJQUGRGTUQPCN Committee RTQDNGOUOC[DGKPVGTHGTKPIYKVJ VJGKTCDKNKV[VQRTCEVKEGNCY5WEJ Chairperson 4QDGTV66JQORUQP,T#VNCPVC TRTQDNGOUKPENWFGUVTGUUEJGOKECNFGRGPFGPE[ Vice Chairperson HCOKN[RTQDNGOUCPFOGPVCNQTGOQVKQPCN %JCTNGU$2GMQT,T#VNCPVC KORCKTOGPV6JTQWIJVJG.#2ŏUJQWT Members FC[CYGGMEQPſFGPVKCNJQVNKPGPWODGT (TGFGTKEM8KEVQT$CWGTNGKP/CTKGVVC $CTOGODGTUCTGQHHGTGFWRVQVJTGGENKPKECN 4QDGTV#$GTNKP/CEQP #4WUUGNN$NCPM5PGNNXKNNG CUUGUUOGPVCPFUWRRQTVUGUUKQPURGT[GCT 5VGXG$TQYP#VNCPVC YKVJCEQWPUGNQTFWTKPICOQPVJRGTKQF#NN 'FYCTF'%CTTKGTG,T&GECVWT #NNCP.GII)CNDTCKVJ#VNCPVC RTQHGUUKQPCNUCTGEGTVKſGFCPFNKEGPUGFOGPVCN *QYCTF-KTM*GPUQP&QTCXKNNG JGCNVJRTQXKFGTUCPFCTGCDNGVQTGURQPFVQC ,QJP6C[NQT*QRMKPU+8#VNCPVC 4KEJCTF*WPVGT5O[TPC YKFGTCPIGQHKUUWGU%NKPKECNCUUGUUOGPVCPF 5CO.QWKU.GXKPG#VNCPVC UWRRQTVUGUUKQPUKPENWFGVJGHQNNQYKPI ,QCPPG/CZ#VNCPVC 4QDGTV'/WNJQNNCPF#VNCPVC Ŗ6JQTQWIJKPRGTUQPKPVGTXKGYYKVJVJG *QOGT5/WNNKPU2TKPEGVQP 9KNNKCO92QTVGT/CTKGVVC CVVQTPG[HCOKN[OGODGT U QTQVJGT ,COGU42WJIGT,CURGT SWCNKſGFRGTUQP #6JQOCU5VWDDU&GECVWT Ŗ%QORNGVGCUUGUUOGPVQHRTQDNGOUCTGCU .GOWGN*GTDGTV9CTF#VNCPVC Ŗ%QNNGEVKQPQHUWRRQTVKPIKPHQTOCVKQPHTQO Executive Committee Liaison ,QPCVJCP$2CPPGNN5CXCPPCJ HCOKN[OGODGTUHTKGPFUCPFVJG.#2 Advisor %QOOKVVGGYJGPPGEGUUCT[CPF )GQTIG9/CTVKP,T#VNCPVC Ŗ8GTDCNCPFYTKVVGPTGEQOOGPFCVKQPU Staff Liaison TGICTFKPIEQWPUGNKPIVTGCVOGPVVQVJG 5JCTQP.$T[CPV#VNCPVC

RGTUQPTGEGKXKPIVTGCVOGPV *denotes non-attorney Seshul, angry with his then- Review Panel he receive a Review Panel repri- girlfriend who had thrown a Reprimands mand. A client paid Elrod $4,500 brick that struck him on the arm, to represent him in a divorce case. picked up the brick and threw Benjamin Christopher Free Elrod performed some work in it at her, striking the woman’s Winder, Ga. the case but later became inac- feet. He was given first offender Admitted to Bar in 1995 cessible. Elrod received a letter treatment and received a five- On Nov. 7, 2011, the Supreme from another attorney advising year sentence, with one year Court of Georgia accepted the peti- that the client had retained her to commuted to time served and tion for voluntary discipline of represent him in the divorce, but the balance to be served on Benjamin Christopher Free (State she was unable to reach Elrod to probation. He was required to Bar No. 275160) and ordered that he arrange for substitution of coun- enter a specified program in receive a Review Panel reprimand. sel and he did not provide her Tennessee on June 1, 2009, and In 2008 a client paid Free $2,500 to with the client’s file. participate in the program for represent him in a prosecution for Elrod was cooperative with the 90 consecutive days; to complete driving under the influence of alco- State Bar and agreed to consult a family violence intervention hol, drugs or other intoxicating sub- with the State Bar’s Law Practice program; and to pay $827.20 in stances. Thereafter, he would not Management Program before Dec. restitution. While enrolled in the return the client’s phone calls and 1, 2011, and to implement the rec- Tennessee program, he received appeared two hours late for calen- ommended changes in his practice. clinical and therapeutic treat- dar call. The client terminated him ment for chronic post-traumatic and requested a refund of the fee Interim Suspensions stress disorder, panic disorder and his file. He did not do so until Under State Bar Disciplinary and alcohol abuse. after the client filed a grievance Rule 4-204.3(d), a lawyer who In mitigation of discipline, the with the State Bar. In September receives a Notice of Investigation Court found that Seshul had no 2011, he paid the client the $1,250 and fails to file an adequate prior discipline; he experienced awarded to him in a fee arbitration response with the Investigative personal and emotional problems proceeding. Free stated that he was Panel may be suspended from the during the relevant time period; going through a divorce at the time, practice of law until an adequate and he has taken rehabilitative which negatively affected his han- response is filed. Since Oct. 15, steps. Prior to reinstatement, he dling of the case. 2011, five lawyers have been sus- must, between Dec. 31, 2012, and pended for violating this Rule and March 31, 2013, present certifica- Christopher David Elrod three have been reinstated. tion from a psychiatrist or psy- Gainesville, Ga. chologist licensed to practice in Admitted to Bar in 1996 Connie P. Henry is Georgia that he has no mental or On Nov. 7, 2011, the Supreme the clerk of the State emotional health condition that Court of Georgia accepted the Disciplinary Board and would adversely affect his ability petition for voluntary discipline can be reached at to practice law and provide the of Christopher David Elrod (State [email protected]. record of his discharge and exon- Bar No. 246640) and ordered that eration to the March 31, 2009, plea or other proof of his completion of his probationary period.

John R. Thompson Swainsboro, Ga. Admitted to Bar in 1966 On Nov. 7, 2011, the Supreme Court of Georgia accepted the petition for voluntary discipline of John R. Thompson (State Bar No. 708600) and suspended him pending an appeal of his crimi- nal convictions. On July 14, 2011, Thompson was found guilty in the U.S. District Court for the Southern District to four felony counts of conspiracy, bank fraud, wire fraud and mail fraud.

February 2012 47 Law Practice Management

Helpful Reminder Tips and Apps

by Natalie R. Kelly

ith ever-busy schedules and the con-

tinual quest for work-life balance, W today’s legal professionals often need special reminder tools and techniques to help keep organized. From writing down everything you need to utilizing tickler systems with automated pop- ups, below are some cool and useful tips and apps just to help you remember.

„ Siri—You can add reminders to your iPhone 4s Reminder app just by simply asking Siri, the iPhone 4s voice-activated digital assistant, to remind you of something. The program confirms your reminder and when the reminder date and time arrives, your phone vibrates and displays a screen for you to either view or close the reminder. „ Remember the Milk—The online task system provides a free account to set up reminders for everything and easily makes sorting of tasks by priority settings, with breakout tabs for personal, study and work items. Remember the Milk is available in a free version or a $25/ year Pro version. The Pro account provides apps Blackberry; and MilkSync for Microsoft Outlook. for Android, iPhone, iPad, via MilkSync for (www.rememberthemilk.com)

48 Georgia Bar Journal „ Need a reminder to help things. The service has built-in to send an email reminder to find where you parked? Try calendars and project and sub- yourself or “CC” to schedule apps like: Where Did I Park? project areas for task reminders. a reminder for you and anoth- (Android; free and a Premium The service also features mobile er recipient. The service uses version for $1.85); VQ Car Finder apps, browser plug-ins and desk- smart tags for date formatting (Blackberry, $4.99, requires in- top widgets. (www.todoist.com) for you to send an email that car Bluetooth charger for auto- „ Toodledo is another online to will prompt a reminder to be matic location using Blackberry do list. The service features a emailed to you later at the speci- GPS); and G-Park and Where Hotlist of important items that fied date and time. For example, Did I Park My Car? (iPhone/ it automatically figures out from if you send an email to 3weeks@ iPad/iPod Touch; $0.99 and your input; filters for system followupthen.com, the service $1.99 respectively). Another lists; a scheduler that focuses on will send you an email in 3 practice is if you are in a smaller using available time; and alarms weeks to cover whatever subject parking deck with only a few that come to you by email, text you put in the subject line and levels up, you can make it a rule or tweet. The app is available for body of the email. The system to drive all the way to the top iOS, Android and Blackberry. only requires you to verify your level. No more going from floor (www.toodledo.com) email address and time zone to to floor to look for your vehicle; „ Use the advanced reminders get started. The Premium ver- just go directly to the top floor. and to dos in practice manage- sion is $24/year and allows you You can also jot down a quick ment software to be reminded to include attachments, custom- note on your phone or note- of tracking time for work you’ve ize company logos and receive pad—or better yet, snap a quick completed; stay in touch with reminders via text message. picture of the location of your key clients; pull files for review; „ Going to trial or out to make a vehicle with your mobile device. or to alert you of upcoming presentation? Create a packing If you think that’s just too “low- events and to dos. Because list or “punch list” for the items tech,” you can use Google Maps practice management software that are necessary for you to “Star” system to mark your exact programs are designed to man- have. This checklist will ensure location as a favorite. age matter/case files in their that you don’t forget anything. „ Still lost, but now just lost inside entirety, the reminder function- a big building? Google’s latest ality allows for master reminder There are, of course, many locator app for Android devic- lists as well as event-specific other reminder systems out there es is the Indoor Maps feature. reminders just minutes be- for you to review and add to your You can actually mark locations fore their occurrence. Outlook productivity toolbox. Now, if only from indoor floor plans of select Calendar and Task list integra- you can remember. buildings and airports. In the tion is also usually featured. Atlanta area, indoor maps are Outlook has reminder function- Natalie R. Kelly is the available for Atlanta Hartsfield- ality as well. director of the State Jackson International Airport „ BugMe! is one of the top Bar of Georgia’s Law and may be coming for select iPhone/iPad reminder apps. Practice Management major retail stores like IKEA, This system creates a board of Program and can be Macy’s and Home Depot. stickies that can be placed on reached at „ If you are in a location where your device home screen, Safari [email protected]. you need to remember to take browser window or be sent to something with you at the end your wallpaper as a constant of the day, like leftovers from reminder. You can even pick lunch or a coat or sweater, you ink and paper colors for the can use your car keys as the reminders. The app costs $0.99. reminder. You can’t go any- „ Most time billing and account- where without those. Just put ing packages can display keys in the refrigerator with the reminders as soon as you enter leftovers or the pocket of the the programs for items that are sweater or coat to force their currently due or even overdue. retrieval. You won’t have to trust your „ Todoist and Wedoist are online memory for making sure you project and task managers that track time or pay bills on time. can be used individually or in „ For reminders via email, give groups as the names suggest to www.followupthen.com a try. make to-dos that remind you of You simply use “To” or “BCC”

February 2012 49 Section News

What is an Institute? by Derrick W. Stanley

here are many answers to the question.

Merriam-Webster.com defines the first T usage of institute as a noun: a (1): an elemen- tary principle recognized as authoritative (2)plural: a collection of such principles and precepts; especially: a legal compendium. In the world of ICLE (the Institute of Continuing Legal Education) and Sections, we define an institute as a way to earn up to one year’s worth of Continuing Legal Education credit with a means to network with peers.

Section program chairs spend many months plan- ning institutes. They work with ICLE to develop an agenda and secure top speakers to deliver the programming. A variety of formats are used during the course of an institute. For instance, there may be panel discussions followed by keynote speakers fol- lowed by a video replay. Some sections even tie all the sessions together with a common theme for illus- tration. For many sections, this is the flagship pro-

50 Georgia Bar Journal gram of the year, providing cut- Section Typical Month ting edge information on current Estate Planning (Fiduciary Law) February topics as well as specific infor- mation on trends in the field. In Real Property Law May addition to spending time learn- Family Law May ing about the profession, the insti- General Practice and Trial Law March tutes also offer social events that facilitate peer networking. From Fiduciary Law July cocktail welcome receptions to City and County Attorneys September awards ceremonies and tennis to (Local Government Law) golf tournaments, there is always Insurance Law Institute September time to enjoy the destination loca- (Tort and Insurance Practice) tion. The programs are usually Business Law October held in cities that provide a host of entertainment options such as Workers’ Compensation Law October St. Simons, Amelia Island, Destin Entertainment and Sports Law/IP November and Savannah. There are even Corporate Counsel Law December opportunities to leave the county or take a cruise. Or you may stay close to home and experience a ly, while developing relationships vide members an opportunity program at the Bar Center. with other practitioners. to gain large amounts of topical As a member of a particular sec- Institutes are planned through- information about the practice tion, you will receive a notification out the year. The table above lists of law in a short period of time. of the institute before it is mar- the sections that currently host The quality of the programming keted to the general membership institutes and the months they are is some of the best around, and of the Bar. This ensures you will be scheduled. ICLE does have other with ICLE’s assistance, the insti- able to secure a hotel room at the institutes that are not sponsored tutes have developed quite a fol- venue as many properties sell out. by the sections. They can be locat- lowing as participants know they Attendance is not limited to section ed by going to iclega.org/pro- are the premier educational pro- members and is offered on a first grams/institute.html. Here you grams to attend. come, first served basis. Many attor- will find brochures for the avail- neys who practice across several able institutes and an opportunity Derrick W. Stanley is areas will attend multiple institutes to register. Be sure to download the section liaison for to stay abreast of changes. The insti- the PDF versions of the brochures the State Bar of tutes also offer attorneys who are as they outline any extracurricular Georgia and can be looking to expand or change their activities that may be taking place. reached at area of practice a way to learn a The institutes that are co-spon- [email protected]. good bit of information very quick- sored by ICLE and sections pro-

February 2012 51 Member Benefits Fastcase: Thinking Outside of the Box by Sheila Baldwin

s we approach our first anniversary with to the 10 most recent searches. If this is a search you intend to run later you may want to copy the link into a Fastcase Legal Research, those who have Word document or an email for later retrieval as it will “disappear” from the list in time. taken advantage of this member benefit Create an annotated list using the Code in “searching A cases.” To pull a list of cases that refer to a Code section, will testify that the smart design makes research faster enter the Code number in the case search field using Georgia as the jurisdiction. In searching 19-9-3, a list of and simpler. Fastcase has developed unique research 111 cases show up in the results (see fig. 2). It is not nec- essary to enter the O.C.G.A portion of the statute. You tools that make your work simpler, smarter and more can enter the Code in quick caselaw search, Boolean (keyword) or Citation to pull all 111 cases. effective. Many users become familiar with basic case- Search names of parties in preparation for trial. You may enter the name of an attorney or a judge in the caselaw law searching, but may not be taking full advantage of search field to find cases to which they were party. Perhaps you have an upcoming case and want to see how a judge the features of Fastcase. This article will discuss ways has ruled on issues or you want to get an idea of how many times an attorney has tried cases in a particular that researchers can think outside of the box to make jurisdiction. Enter the full name in the search field in either Boolean (keyword) or citation mode using the parameter better use of Fastcase. filter of w/3 or enclosing the name in quotation marks. Example: enter the following query, Judge /3 Phipps and Use the Interactive Timeline to best advantage. The pow- fourth /3 amendment and reversed with GA as the jurisdiction erful sorting algorithms bring many pieces of informa- in Boolean (keyword) to find 29 cases (See fig. 3). tion to your attention in one or two clicks, displaying the Each month our members have access to CLE-approved best results to the top of the list. The interactive timeline training on Fastcase. We offer Fastcase overview classes gives users the advantage of “stepping back” to see at the State Bar offices in Atlanta, Tifton or Savannah, at the big picture and then hone in on the most relevant local bar association meetings or law firms. Many attor- information. One can see legal topics in their histori- neys have expressed interest in training geared specifi- cal context while at the same time see the most highly cally to Boolean (keyword) searching in Fastcase. Natural cited cases that are both recent and relevant. Searching language searching may seem easier but it is not usu- evidence and (roadblock* or sobriety checkpoint*) in Georgia, ally the best approach. Fastcase has developed a webi- one can see the majority of cases are from 1990 through nar written by one of their leading attorneys, Christine the present. The most highly cited recent and relevant Steinbrecker Jack, to provide this option. It’s a free one case is clearly seen; it is the largest gold circle on the hour CLE-approved training that can be taken from vertical axis (set to show relevancy) and toward the home or office. For information on upcoming training right side of the screen, Baker v. State, a 2001 case (see opportunities, please check the website under “Bar News fig. 1). Using the drop down tool under “show” you are & Events” or contact Sheila Baldwin at [email protected] able to narrow to the top five, ten or 25 cases sorted by or 404-526-8618. “cited in these results” to focus on the cases that will be of most help. Sheila Baldwin is the member benefits Dynamic link saves time. Later, if you want to recreate coordinator of the State Bar of Georgia this search, go to Search>My Research Home and click and can be reached at [email protected]. on the search in the center column. The dynamic link will present the results from the original search as well as any new results. Keep in mind that the list holds up

52 Georgia Bar Journal 1

2

3

Fastcase training classes are offered four times a month at the State Bar of Georgia in Atlanta. Training is available at other locations and in various formats and will be listed at www.gabar.org under the “Bar News & Events” section. Please call 404-526-8618 to request onsite classes for local and specialty bar associations. Writing Matters

To Fee For Services Rendered by Karen J. Sneddon

h, the old days when, we’ve heard, a law-

yer would send a piece of paper to the cli- A ent with the five words “to fee for services rendered” and a dollar amount. Just a few days later, the lawyer would receive a check. No questions asked.

How times have changed. Today, clients pore over fee statements closely, checking for duplication, waste and other inefficiencies. Likewise, in determining attorneys’ fees awards in litigation, courts are more frequently rejecting “block billing,” non-contempora- neous time entries and amorphous descriptions. A fee statement is more likely to be challenged and reduced if it does not easily convey to the reader that the work performed furthered the client’s goals and was effi- ciently performed. As a result of these factors and general bad economic times, the content and phrasing of fee statements has become much more important. This “Writing Matters” shows how persuasive writing techniques can be used to make time entries more informative, producing fee statements more likely to please a client or a court. Tell the Client How Your Work Furthered the Client’s Goals representation? Transform the entry to the follow- ing: “researched whether statute of limitations barred A client who understands not just what was done, plaintiff’s claim, for potential summary judgment but why, is more likely to grasp the reasonableness of motion.” This more completely explains not just what the fee. The client will recognize that the lawyers were research was done, but how the research actually ben- focused on the client’s needs. efited the client. Likewise, “telephone conference with A time entry that states, “researched summary judg- opposing counsel” is much less informative (and hence ment motion” may be accurate, but it is not persuasive. much less persuasive) than “consulted with opposing The client might wonder why this was necessary. So counsel to avoid preparation and filing of motion for tell the client. Why did this further the goals of the summary judgment on limitations.”

54 Georgia Bar Journal Avoid Phrasing That state, “Argued motion to dismiss 6 hurs. Researched statute of Creates the Impression for lack of personal jurisdiction, limitations, personal jurisdic- including presentation of docu- tion, pleading requirements of Inefficiency ments and witnesses.” under Rule 9(b) and applica- In these days of multitasking A special risk for perceived bility of Pennsylvania law to and economic pressures, everyone duplication arises when one law- the contract-in-dispute. favors efficiency. Avoiding even yer “talks to” another lawyer in the impression of inefficiency is the same firm. An entry that one Being more specific can show therefore important. Several prac- lawyer talked to another lawyer the block of time was well spent tices can lead clients to suspect that reeks of duplication. In our experi- on the law that is critical to the a lawyer was inefficient. ence, clients are particularly suspi- particular representation. One arises in drafting docu- cious of intra-firm consultations. ments. Often, of course, it is effi- An entry that demonstrates that, Use Strong, Active cient for an inexperienced lawyer to rather than being inefficient or a Verbs draft the first version of a document justification of water cooler conver- and then for a more experienced sation, the consultation benefited Which would you rather pay for, lawyer to revise and improve it. the client would likely be more a lawyer who gave “attention” to a The time entries that correspond welcomed. Hence, if a younger brief or a lawyer who “drafted” or to this work may bear duplicate lawyer had an office conference “revised” the brief? Verbs that indi- entries for two attorneys with the with another lawyer in the firm, cate activity are more persuasive. cryptic phrasing “drafted docu- the entry might state, “Consulted Active verbs help the client visual- ment,” or, worse, “worked on docu- with Ms. Smith of our appellate ize the action. Avoid non-descrip- ment.” Those time entries do not practice group regarding strategy tive verbs, such as “reviewed,” inform the reader that the lawyers for ordering arguments in appel- “attention to,” “worked on” and worked efficiently, dividing the late brief.” the like. Use the active voice, and work among an inexperienced law- A final form of this perceived words such as “analyzed,” “draft- yer (who brings a potentially fresh inefficiency is more substantive, ed,” “edited” and other concrete, perspective and a lower billing rate) but it is important to discuss it active verbs. and an experienced lawyer (who here because its use increases the brings the seasoned perspective, but likelihood of client suspicion. The Conclusion a higher billing rate). So, convert appearance of inefficiency can arise An informed client is usually the seemingly duplicated cryptic when a lawyer bills short amounts a happy client. We hope that this entries to a sequence of entries. A of time spread out over several installment of “Writing Matters” time entry from the young lawyer days on a single task. For example, will allow you to better explain to could read, “prepared first draft a lawyer may bill “researched stat- your client why you should be paid of the complaint” coupled with a ute of limitations” for a tenth of for the excellent work that you per- time entry from the senior lawyer an hour Monday, two-tenths on form for your client. stating “revised and completed the Tuesday, a half hour on Thursday. complaint for filing.” Both entries Lawyers should do their best to Karen J. Sneddon is are truthful and avoid creating the avoid this practice for two reasons: an associate professor wrong impression. first, working in such short blocks at Mercer Law School Likewise, at times it’s neces- of time on a single task may actu- and teaches in the sary for more than one lawyer to ally be inefficient and, second, even Legal Writing Program. attend a deposition, a closing or a if efficient, it may lead many clients hearing. A description from both to more closely examine all other Endnote lawyers simply stating “attended time entries. 1. In disputes to recover attorney hearing” or “attention to clos- fees, courts often reduce fee ing” is likely to be perceived as Avoid Block Entries, requests that include block duplicative. So, for example, each or at Least Be billing or discourage it in other lawyer should include descriptive ways. E.g., Farfaras v. Citizens terms explaining why she was Detailed About Them Bank & Trust of Chicago, 433 F.3d present. For example, one lawyer Some clients may not question 558, 569 (7th Cir. 2006) (affirming might enter the following descrip- an entry of six hours for “research a reduction of 15% of fees, tion: “attended hearing on motion regarding summary judgment stating that “[a]lthough block billing does not provide the best to dismiss for lack of personal motion.”1 Nevertheless, very few possible description of attorneys’ jurisdiction to assist Ms. Smith will challenge a time entry that fees, it is not a prohibited with documents and witnesses.” breaks out the issues further, stat- practice.”). The other lawyer’s entry might ing for example:

February 2012 55 Professionalism Page

Today’s Committee on Professionalism by Avarita L. Hanson

o maintain the highest levels of profession-

alism, the State Bar of Georgia maintains T a committee on professionalism in addi- tion to supporting the Chief Justice’s Commission on Professionalism (CJCP). The Committee on

Professionalism’s charge, as posted on the State Bar’s website, www.gabar.org, is as follows:

This program committee shall consider and make recommendations to the Executive Committee and Board of Governors necessary to advance profes- sionalism in the practice of law. It shall concern itself with the various facets of professionalism including knowledge, technical skill, integrity in relations with both clients and the courts, dedica- tion to the law and public good, and ultimately the providing of competent legal services to the public.

The committee has developed several programs including: 1) Annual Law School Professionalism Orientation Programs; 2) Law Day activities for local, circuit and specialty bar associations; 3) Take Hon. Donald R. Donovan, Paulding County district attorney, serves as Your Adversary to Lunch Program; and 4) Creative chair of the Committee on Professionalism. Connections. The committee works with CJCP staff to achieve their goals. Subcommittee that reviews the program materials for The Annual Law School Orientations on relevance and currency. As necessary, the subcom- Professionalism program has a Hypothetical mittee proposes new hypothetical information and

56 Georgia Bar Journal U.S. Department of Homeland liaison. Advisors to the committee Security Attorney C. Joy Lampley represent lay persons, Georgia law Fortson currently serves as vice- schools and other related entities. chair of the committee. She has These include State Rep. Kathy Ashe; been managing and disseminat- Associate Dean A. James Elliott ing information to bar associa- (Emory University School of Law); tions across the state to support Dean Sheryl E. Harrison (Atlanta’s Law Day activities. Local bars pro- John Marshall Law School); Prof. vide their information to the Law Patrick E. Longan (Walter F. George Day Subcommittee that in turn School of Law at Mercer University); is posted on the Georgia map on Associate Dean Roy Sobelson the American Bar Association’s (Georgia State University College website, www.lawday.org, bring- of Law); Doug Ashworth (Associate ing attention to the projects and Director of ICLE); and Charles activities Georgia attorneys do to C. Olson (Prosecuting Attorneys’ commemorate Law Day. Council of Georgia). “Serving on the Committee on The Committee on Pro- Professionalism,” says Fortson, fessionalism welcomes suggestions U.S. Department of Homeland Security “ranks as one of the most impor- from the bench and bar for activi- Attorney C. Joy Lampley Fortson currently tant ways that I serve within the ties and programs. Please feel free serves as vice-chair of the Committee on legal community because the com- to contact them at professionalism@ Professionalism. mittee has the unique opportu- cjcpga.org or 404-225-5040. modifies the program utilizing nity to help shape perceptions of feedback from students and group lawyers amongst law students, Avarita L. Hanson is leaders. Committee members wel- practicing attorneys and the pub- the executive director come suggestions for new profes- lic. We take our work seriously of the Chief Justice’s sionalism hypothetical problems. because we know that if we con- Commission on Hon. Donald R. Donovan, sistently and conscientiously uti- Professionalism and Paulding County district attor- lize various methods of encourag- can be reached at ney, has committed himself to ing professionalism and integrity, [email protected]. the leadership of this committee then we can truly effect change in for many years, including serving our profession.” six years as chair. He encourages Currently, committee mem- its members to develop program bers are from all parts of Georgia, ideas and recruits volunteers to representing the diversity of the serve as group leaders and speak- State Bar. They include: David ers for the orientation programs. W. Adams (Atlanta); Fred V. He attends related meetings Bauerlein (Marietta); Jennifer where he learns about new pro- Blackburn (Atlanta); Joshua I. Bosin fessionalism initiatives and shares (Atlanta); Dean C. Bucci (Dallas), his experiences. “I am involved David Scott Crawford (Atlanta); in nothing so rewarding—or as Elizabeth L. Fite (Atlanta); Amanda important—as the professional- J. Hanson (Alpharetta); Nicole ism movement begun nearly 20 G. Iannarone (Atlanta); Steven J. years ago by our Bar’s leaders. Messinger (Dallas); Denise A. Our society has grown more and Miller (Atlanta); William H. Pinson more litigious and unfortunately Jr. (Savannah); Prof. Alex Reed our Bar members have grown less (Athens); Leah Fallin Sumner willing to recall what it means to (Newnan); Gwendolyn S. Fortson be a professional. I’m dedicated Waring (Savannah); Erica L. to and willing to put forth what- Woodford (Macon); and Ruth W. ever effort necessary to promote Woodling (Atlanta). professionalism in the State Bar of The committee is also support- Georgia,” Donovan said. He also ed by Steven A. Moulds (Atlanta), stated he hopes the programs and who represents the YLD Ethics & ideas the committee has fostered Professionalism Committee and over the years will continue to Jonathan A. Pannell (Savannah), have an impact on the Bar. the State Bar Executive Committee’s

February 2012 57 In Memoriam

he Lawyers Foundation of Georgia Inc. sponsors activities to promote charitable, scientific and educational purposes for the public, law students and lawyers. Memorial contribu- T tions may be sent to the Lawyers Foundation of Georgia Inc., 104 Marietta St. NW, Suite 630, Atlanta, GA 30303, stating in whose memory they are made. The Foundation will notify the family of the deceased of the gift and the name of the donor. Contributions are tax deductible.

William A. Alexander Ellis Ray Brown John Henry Land Chattanooga, Tenn. Hartwell, Ga. Columbus, Ga. Atlanta Law School (1975) Atlanta’s John Marshall Law University of Georgia School Admitted 1977 School (1957) of Law (1939) Died October 2011 Admitted 1959 Admitted 1939 Died December 2011 Died November 2011 Theodore E. Barner Roswell, Ga. Charles A. Coffin Preston B. Lewis Jr. Atlanta Law School (1975) Columbus, Ga. Waynesboro, Ga. Admitted 1975 Cumberland School of Law University of Georgia School Died January 2012 at Samford University (1970) of Law (1958) Admitted 1974 Admitted 1958 David Jeremy Bederman Died December 2011 Died December 2011 Atlanta, Ga. University of Virginia School George Christopher Gleason Jack F. Peace of Law (1987) Albany, N.Y. Marietta, Ga. Admitted 1987 Seton Hall University Law School Cumberland School of Law Died December 2011 (2000) at Samford University (1951) Admitted 2005 Admitted 1974 Meshell Anne Bell Died November 2011 Died December 2011 Saint Louis, Mo. University of Texas School of Law William D. Healan Jr. Barry Phillips (1997) Winder, Ga. Atlanta, Ga. Admitted 2009 University of Georgia School University of Georgia School Died December 2011 of Law (1975) of Law (1954) Admitted 1975 Admitted 1951 Robert H. Brinson Jr. Died December 2011 Died January 2012 Atlanta, Ga. Emory University School of Law Richard D. Heller Glenda Faye Purham-Brown (1949) Fort Lauderdale, Fla. Bellaire, Texas Admitted 1946 Indiana University Maurer School Atlanta Law School (1991) Died December 2011 of Law (1975) Admitted 1991 Admitted 1983 Died April 2011 Thomas Garrett Brooks Died July 2011 Tallahassee, Fla. Alfred A. Quillian Atlanta Law School (1951) John D. Jones Winder, Ga. Admitted 1951 Atlanta, Ga. University of Georgia School Died December 2011 Emory University School of Law of Law (1951) (1957) Admitted 1951 Barbara Shapiro Brown Admitted 1957 Died December 2011 Atlanta, Ga. Died August 2011 Emory University School of Law Dean Edwin Rice (1988) Atlanta, Ga. Admitted 1990 University of Kentucky College Died September 2011 of Law (1969) Admitted 1974 Died December 2011

58 Georgia Bar Journal Richard A. Rominger tion, customary law, international before the U.S. Supreme Court. His Savannah, Ga. environmental law and foreign first case before the U.S. Supreme Emory University School of Law relations power. He served as advi- Court involved torts liability stan- (1971) sor to the Emory International Law dards in the Antarctic. Admitted 1971 Review and was director of interna- Died December 2011 tional legal studies. He established Major ( Ret. ) Charles the Supreme Court Advocacy Alston Coffin died in Annie Ruth Simmons Project at the law school, and was December 2011. Born Atlanta, Ga. also an associated faculty member on June 7, 1945, Coffin Woodrow Wilson College of Law of the Center for the Study of Law was the son of Charles (1979) and Religion. Alston Coffin and Alice Admitted 1980 Recognizing his extraordinary Walker Coffin of Richland, Ga. Died December 2011 breadth as a scholar, author, legal Coffin attended the University of historian, beloved teacher and expert Georgia where he was a member of W. Woodrow Stewart litigator, Emory University School the Sigma Nu fraternity and earned Gainesville, Ga. of Law established the David J. his J.D. degree from Cumberland Tulane University Law School Bederman Distinguished Lecture, School of Law at Samford University (1966) along with a summer fellowship at in Birmingham, Ala. At the time Admitted 1967 The Hague Academy of International of his graduation, he was the young- Died January 2012 Law, in honor of Bederman’s career est graduate in the history of the and accomplishments. law school. John R. Trapnell Bederman’s mind was a store- After practicing law in Alabama Atlanta, Ga. house of knowledge on legal history, and Georgia for a number of years, Emory University School of Law constitutional law, admiralty and he entered the Judge Advocate (1965) international law. He coupled that General’s Corps of the U.S. Army. Admitted 1966 knowledge with a distinct capacity A highly successful criminal trial Died December 2011 and passion to explore challenging lawyer and prosecutor, his work legal questions ranging from how resulted in many felony convic- G. Stuart Watson custom provides the basis for mod- tions, including murder. Albany, Ga. ern law to who owns the personal Coffin was a devoted husband Emory University School of Law artifacts of the H.M.S. Titanic. and father who served as a deacon (1947) Bederman’s defense of Premier in the First Presbyterian Church Admitted 1947 Exhibitions, an Atlanta company of Columbus. With a passion for Died December 2011 that held the salvage rights to the history, he developed a detailed Titanic, helped him become one of knowledge of his own Coffin fam- David J. Bederman, K. a handful of lawyers in the world ily who left England in the 17th H. Gyr Professor of who could navigate the arcane century to become one of the origi- Private International legal realm surrounding ship- nal families to settle Nantucket Law at Emory wrecks. While he turned down the Island, Mass. This family helped University School of chance to see the Titanic wreckage initiate the whaling industry Law, died in December in person, he was honored for his and played a major role in early 2011. Born and raised in Atlanta, work on this and related admiralty American maritime commerce. Bederman was a true son of the cases by receiving a Mel Fisher new South. After graduating from Lifetime Achievement Award in The Paideia School, he attended Key West. Princeton University, the London In 2006, Bederman joined Earn up to 6 CLE credits for School of Economics, University of the board of Odyssey Marine authoring legal articles and Virginia School of Law and The Exploration Inc., which conducts having them published. Hague Academy of International extensive search and archaeological Submit articles to: Law. Bederman returned home to recovery operations on deep-ocean Robert R. Stubbs Atlanta in 1991 to teach at Emory shipwrecks around the world. Georgia Bar Journal until his death in 2011. During his Last year he became its chairman. 104 Marietta St. NW, Suite 100 20 years at Emory, Bederman Bederman had a passion for the Atlanta, GA 30303 taught courses and seminars on company’s mission: to discover and international law, torts, admiralty, share the riches of the ocean. Contact [email protected] for international institutions, law of Bederman was counsel of record more information or visit the Bar’s international common spaces, legal in 52 cases in the U.S. Courts of website, www.gabar.org. methods, legislation and regula- Appeals, and he argued four cases

February 2012 59 CLE Calendar

February-April FEB 10 ICLE FEB 16 ICLE Employers’ Duties and Problems Elder Law Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours

FEB 10 ICLE FEB 16 ICLE Problems Solved Residential Real Estate Atlanta, Ga. Statewide Satellite Rebroadcast See www.iclega.org for location See www.iclega.org for locations 6 CLE Hours 6 CLE Hours

FEB 10 ICLE FEB 16-18 ICLE Residential Real Estate Winter Tropical Seminar Statewide Satellite Broadcast Grand Cayman Island See www.iclega.org for locations See www.iclega.org for location 6 CLE Hours 12 CLE Hours

FEB 10 ICLE FEB 16-17 ICLE Family Law Social Security Law Columbus, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 10 CLE Hours

FEB 10 Atlanta Bar Association FEB 17 ICLE Family Law Banking and Finance Law 6 CLE Hours Statewide Satellite Broadcast See www.iclega.org for locations FEB 10-11 ICLE 6 CLE Hours Estate Planning Institute Athens, Ga. FEB 22 ICLE See www.iclega.org for location Negotiated Corporate Acquisitions 9 CLE Hours Atlanta, Ga. See www.iclega.org for location FEB 13 Atlanta Bar Association 6 CLE Hours Managing Wage & Hour Risks Live webcast FEB 22 Atlanta Bar Association 6 CLE Hours Ethics for Corporate Counsel Live webcast FEB 16 ICLE 3 CLE Hours Health Law and the CDC Atlanta, Ga. FEB 23 ICLE See www.iclega.org for location Advanced Debt Collection 3 CLE Hours Atlanta, Ga. See www.iclega.org for location 6 CLE Hours

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

60 Georgia Bar Journal CLE Calendar

FEB 23 ICLE FEB 25 ICLE Technology Show and Tell Bar Media & Judiciary Conference Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours

FEB 23 ICLE FEB 27 ICLE Banking and Finance Law Beginning Lawyers Statewide Satellite Rebroadcast Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for location 6 CLE Hours 6 CLE Hours

FEB 24 ICLE FEB 28 ICLE American Constitution Society Franchise Law Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 2 CLE Hours 6 CLE Hours

FEB 24 ICLE FEB 29 ICLE Criminal Practice Eminent Domain Kennessaw, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours

FEB 24 ICLE FEB 29 ICLE Georgia Auto Insurance Handling Fall Cases Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours

FEB 24 ICLE MAR 1 ICLE Georgia Appellate Practice Integrity Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 4 CLE Hours

FEB 24 ICLE MAR 1 ICLE Thurgood Marshall’s Coming (Replay) Lawyers as Great Leaders Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 3 CLE Hours

FEB 24 Atlanta Bar Association MAR 1 ICLE Advanced Workers’ Compensation Proving Damages 6 CLE Hours Atlanta, Ga. See www.iclega.org for location 6 CLE Hours

February 2012 61 CLE Calendar

February-April MAR 1 Atlanta Bar Association MAR 7 Atlanta Bar Association Basic Immigration Law Grandparent/Relative Caregiver Project Live webcast Part of Pro Bono March Madness 6 CLE Hours 3 CLE Hours

MAR 2 ICLE MAR 8 ICLE Product Liability Nuts & Bolts of Local Government Law Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours

MAR 2 ICLE MAR 8 ICLE Fundamentals of Health Care Law Entertainment Law Boot Camp Atlanta, Ga. (Tentative) See www.iclega.org for location Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 3 CLE Hours MAR 2 ICLE Clarence Darrow—Crimes, Causes MAR 8 ICLE and the Courtroom (Replay) Theory to Verdict Atlanta, Ga. Statewide Satellite Rebroadcast See www.iclega.org for location See www.iclega.org for locations 6 CLE Hours 6 CLE Hours

MAR 2 ICLE MAR 9 ICLE Theory to Verdict Inside the Courtroom Statewide Satellite Broadcast Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for location 6 CLE Hours 6 CLE Hours

MAR 5 Atlanta Bar Association MAR 9 ICLE Representing Immigrant Victims Workouts, Turnarounds of Human Trafficking and Restructurings Part of Pro Bono March Madness Atlanta, Ga. 3 CLE Hours See www.iclega.org for location 6 CLE Hours MAR 5 Atlanta Bar Association Remedies for Undocumented Children MAR 9 ICLE & Families Professionalism and Ethics Update Part of Pro Bono March Madness Statewide Satellite Broadcast 4 CLE Hours See www.iclega.org for locations 2 CLE Hours MAR 7 ICLE Family Law Convocation MAR 12 ICLE of Professionalism Selected Video Replays Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 3 CLE Hours 6 CLE Hours Note: To verify a course that you do not see listed, please call the CLE Department at 404-527-8710. Also, ICLE seminars only list total CLE hours. For a breakdown, call 800-422-0893.

62 Georgia Bar Journal CLE Calendar

MAR 12 Atlanta Bar Association MAR 15 ICLE Wills & Advance Directives Project Workers’ Compensation for the General Part of Pro Bono March Madness Practitioner 3.5 CLE Hours Atlanta, Ga. See www.iclega.org for location MAR 12 Atlanta Bar Association 6 CLE Hours Pro Bono for Transactional Attorneys Part of Pro Bono March Madness MAR 15 ICLE 3 CLE Hours Employee Benefits Atlanta, Ga. MAR 12 Atlanta Bar Association See www.iclega.org for location Education Advocacy for Children 6 CLE Hours With Special Needs Part of Pro Bono March Madness MAR 15 ICLE 3 CLE Hours Professionalism & Ethics Update Statewide Satellite Rebroadcast MAR 13 ICLE See www.iclega.org for locations Selected Video Replays 2 CLE Hours Atlanta, Ga. See www.iclega.org for location MAR 15 Atlanta Bar Association 6 CLE Hours Advanced Employment Law 6 CLE Hours MAR 13 ICLE Group Mentoring MAR 15 Atlanta Bar Association Atlanta, Ga. Advocating for the Truant Child See www.iclega.org for location Part of Pro Bono March Madness 3 CLE Hours 4 CLE Hours

MAR 13 ICLE MAR 15-17 ICLE Electronic Discovery General Practice & Trial Institute Atlanta, Ga. Amelia Island, Fla. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 12 CLE Hours

MAR 14 ICLE MAR 16 ICLE Animal Law Complex Personal Injury Cases Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours

MAR 14 ICLE MAR 16 ICLE Post Judgment Collection Trial and Error Atlanta, Ga. Statewide Satellite Broadcast See www.iclega.org for location See www.iclega.org for locations 6 CLE Hours 6 CLE Hours

February 2012 63 CLE Calendar

February-April MAR 16 ICLE MAR 21 Atlanta Bar Association MBA Concepts for Lawyers Les Misérables Meets Collateral Atlanta, Ga. Consequences See www.iclega.org for location Part of Pro Bono March Madness 6 CLE Hours 1 CLE Hours hour

MAR 19 Atlanta Bar Association MAR 22 ICLE The Saturday Lawyer Program Trial and Error Part of Pro Bono March Madness Statewide Satellite Rebroadcast 7 CLE Hours See www.iclega.org for locations 6 CLE Hours MAR 19 Atlanta Bar Association Guardian ad Litem MAR 22 ICLE Part of Pro Bono March Madness Georgia Law of Torts 7 CLE Hours Atlanta, Ga. See www.iclega.org for location MAR 19 Atlanta Bar Association 6 CLE Hours One Child, One Lawyer Part of Pro Bono March Madness MAR 23 ICLE 6 CLE Hours Jury Trial (from 1/20/12) Statewide Satellite Rebroadcast MAR 19 ICLE See www.iclega.org for location Internet Legal Research 6 CLE Hours Atlanta, Ga. See www.iclega.org for location MAR 23 ICLE 6 CLE Hours Nonprofit Law Atlanta, Ga. MAR 20 ICLE See www.iclega.org for location Beginning Lawyers—Video Replay 6 CLE Hours Atlanta, Ga. See www.iclega.org for location MAR 23 ICLE 6 CLE Hours Basic Securities Law Atlanta, Ga. MAR 21 ICLE See www.iclega.org for location Basic Fiduciary Practice 6 CLE Hours Atlanta, Ga. See www.iclega.org for location MAR 23 ICLE 6 CLE Hours Update on Georgia Law Columbus, Ga. MAR 21 Atlanta Bar Association See www.iclega.org for location Heir Property in Georgia 6 CLE Hours Part of Pro Bono March Madness 3 CLE Hours MAR 26 Atlanta Bar Association Part of Pro Bono March Madness The Asylum Project 4 CLE Hours

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

64 Georgia Bar Journal CLE Calendar

MAR 26 Atlanta Bar Association MAR 30 ICLE Employment Law for Pro Bono Plaintiff’s Personal Injury Organizations Atlanta, Ga. Part of Pro Bono March Madness See www.iclega.org for location 3 CLE Hours 6 CLE Hours

MAR 27 Atlanta Bar Association MAR 30 ICLE Representing Survivors of Intimate Trials of the Century Partner Violence Atlanta, Ga. Part of Pro Bono March Madness See www.iclega.org for location 3.5 CLE Hours 6 CLE Hours

MAR 27 Atlanta Bar Association MAR 30 ICLE Bankruptcy Reaffirmation Project Keep It Short and Simple . . . and Other Part of Pro Bono March Madness Trial Tips 2 CLE Hours Statewide Satellite Rebroadcast See www.iclega.org for locations MAR 28 ICLE 6 CLE Hours Professional and Ethical Dilemmas Atlanta, Ga. APR 4 ICLE See www.iclega.org for location Hot Topics in Public Interest 6 CLE Hours Atlanta, Ga. See www.iclega.org for location MAR 28 ICLE 3 CLE Hours Gay Marriage/Same Sex Issues Atlanta, Ga. APR 5 ICLE See www.iclega.org for location School and College Law 6 CLE Hours Atlanta, Ga. See www.iclega.org for location MAR 29 ICLE 6 CLE Hours Enhancing Your People Skills (Tentative) Atlanta, Ga. APR 12 ICLE See www.iclega.org for location Meet the Judges 6 CLE Hours Atlanta, Ga. See www.iclega.org for location MAR 29 ICLE 6 CLE Hours Mediation Advocacy Atlanta, Ga. APR 12-13 ICLE See www.iclega.org for location Trial Evidence 6 CLE Hours Atlanta, Ga. See www.iclega.org for location MAR 29 Atlanta Bar Association 12 CLE Hours Environmental Regulation Live webcast APR 13 ICLE 6 CLE Hours Child Welfare Atlanta, Ga. See www.iclega.org for location 6 CLE Hours

February 2012 65 Notice

Formal Advisory Opinion Issued Pursuant to Rule 4-403(d)

The second publication of this opinion appeared OPINION: in the December 2010 issue of the Georgia Bar Journal, which was mailed to the members of the State Bar of Relevant Rules Georgia on or about Dec. 14, 2010. The opinion was filed with the Supreme Court of Georgia on Jan. 18, This question squarely implicates several of 2011. The State Bar of Georgia and the requestor each Georgia’s Rules of Professional Conduct, particularly, filed a Petition for Discretionary Review with the Rule 1.14. Rule 1.14, dealing with an attorney’s ethical Supreme Court of Georgia pursuant to Rule 4-403(d), duties towards a child or other client with a disability, which the Supreme Court granted on March 3, 2011. provides that “the lawyer shall, as far as reasonably On January 9, 2012, the Supreme Court of Georgia possible, maintain a normal client-lawyer relation- issued an Order approving Formal Advisory Opinion ship with the client.” Comment 1 to Rule 1.14 goes on No. 10-2. Following is the full text of the opinion. In to note that “children as young as five or six years of accordance with Bar Rule 4-403(e), this opinion is bind- age, and certainly those of ten or twelve, are regarded ing upon all members of the State Bar of Georgia, and as having opinions that are entitled to weight in legal the Supreme Court shall accord this opinion the same proceedings concerning their custody.”1 precedential authority given to the regularly published judicial opinions of the Court. This question also involves Rule 1.2, Scope of Representation, and Rule 1.7, governing conflicts of FORMAL ADVISORY OPINION NO. 10-2 interest.2 Comment 4 to Rule 1.7 indicates that “[l]oyalty Approved And Issued On January 9, 2012 to a client is also impaired when a lawyer cannot con- Pursuant to Bar Rule 4-403 sider, recommend or carry out an appropriate course of By Order of The Supreme Court of Georgia action for the client because of the lawyer’s other com- Supreme Court Docket No. S11U0730 peting responsibilities or interests. The conflict in effect forecloses alternatives that would otherwise be available QUESTION PRESENTED: to the client.”3

May an attorney who has been appointed to serve Finally, this situation implicates Rule 3.7, the lawyer both as legal counsel and as guardian ad litem for a as a witness, to the extent that the guardian ad litem child in a termination of parental rights case advocate must testify and may need to advise the court of the termination over the child’s objection? conflict between the child’s expressed wishes and what he deems the best interests of the child. Similarly, Rule SUMMARY ANSWER: 1.6, Confidentiality of Information, may also be violated if the attorney presents the disagreement to the Court. When it becomes clear that there is an irreconcilable conflict between the child’s wishes and the attorney’s Statutory Background considered opinion of the child’s best interests, the attorney must withdraw from his or her role as the Georgia law requires the appointment of an attorney child’s guardian ad litem. for a child as the child’s counsel in a termination of

66 Georgia Bar Journal parental rights proceeding.4 The statute also provides that the court may additionally appoint a guardian ad litem for the child, and that the child’s counsel is eligible to serve as the guardian ad litem.5 In addition to the child’s statutory right to counsel, a child in a termination of parental rights proceedings also has a federal constitutional right to counsel.6

In Georgia, a guardian ad litem’s role is “to protect HEADQUARTERS the interests of the child and to investigate and present evidence to the court on the child’s behalf.”7 The best 104 Marietta St. NW interests of the child standard is paramount in con- Suite 100 sidering changes or termination of parental custody. See, e.g., Scott v. Scott, 276 Ga. 372, 377 (2003) (“[t]he Atlanta, GA 30303 paramount concern in any change of custody must 404-527-8700 be the best interests and welfare of the minor child”). 800-334-6865 The Georgia Court of Appeals held in In re A.P. based on the facts of that case that the attorney-guardian ad Fax 404-527-8717 litem dual representation provided for under O.C.G.A. § 15-11-98(a) does not result in an inherent conflict of interest, given that “the fundamental duty of both a guardian ad litem and an attorney is to act in the best interests of the [child].”8

This advisory opinion is necessarily limited to the ethical obligations of an attorney once a conflict of inter- est in the representation has already arisen. Therefore, we need not address whether or not the dual represen- tation provided for under O.C.G.A. § 15-11-98(a) results in an inherent conflict of interest.9 SOUTH GEORGIA OFFICE Discussion 244 E. 2nd St. The child’s attorney’s first responsibility is to his or Tifton, GA 31794 her client.10 Rule 1.2 makes clear that an attorney in a 229-387-0446 normal attorney-client relationship is bound to defer 800-330-0446 to a client’s wishes regarding the ultimate objectives of the representation.11 Rule 1.14 requires the attorney to Fax 229-382-7435 maintain, “as far as reasonably possible…a normal client- lawyer relationship with the [child].”12 An attorney who “reasonably believes that the client cannot adequately act in the client’s own interest” may seek the appoint- ment of a guardian or take other protective action.13 Importantly, the Rule does not simply direct the attorney to act in the client’s best interests, as determined solely by the attorney. At the point that the attorney concludes that the child’s wishes and best interests are in conflict, the attorney should petition the court for removal as the child’s guardian ad litem, disclosing only that there is a COASTAL GEORGIA conflict which requires such removal. OFFICE The attorney should not reveal the basis of the 18 E. Bay St. request for the appointment of a guardian ad litem to Savannah, GA 31401 preserve confidentiality and so as not to compromise the child’s position.14 An exception to the duty of con- 912-239-9910 fidentiality may arise “[w]here honoring the duty of 877-239-9910, confidentiality would result in the children’s exposure to a high risk of probable harm.”15 The State Bar has three offices to serve you. Fax 912-239-9970

February 2012 67 GET PUBLISHED

EARN CLE CREDIT The Editorial Board of the Georgia Bar Journal is in regular need of scholarly legal articles to print in the Journal. Earn CLE credit, see your name in print and help the legal community by submitting an article today!*

Submit articles to Sarah I. Coole, Director of Communications, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 or [email protected]. If you have additional questions, you may call 404-527-8791.

*Not all submitted articles are deemed appropriate for the Journal. The Editorial Board will review all submissions and decide on publication. The attorney should not reveal from the guardian ad litem role Although acknowledging that further information received dur- once it conflicts with the role as this approach has practical ben- ing the representation, nor should counsel) is in accord with an attor- efits, we conclude that strict adher- the attorney otherwise use the ney’s duty to the client.25 ence to the Rules of Professional information received from the Conduct is the sounder approach. child in confidence to advocate a Connecticut’s Bar Association position not desired by the child.16 provided similar advice to its Conclusion This contrasts with the attorney’s attorneys, and Connecticut’s legis- ability to disclose such informa- lature subsequently codified that At the point that the attorney tion to the court in service of the position into law.26 Similarly, in concludes that the child’s wishes child’s wishes.17 Massachusetts, an attorney rep- and best interests are in conflict, resenting a child must represent the attorney should petition the The attorney is under an affir- the child’s expressed preferences, court for removal as the child’s mative ethical obligation to seek assuming that the child is reason- guardian ad litem, disclosing to have a new guardian ad litem ably able to make “an adequately only that there is a conflict which appointed following his withdraw- considered decision…even if the requires such removal. The attor- al as guardian, as Comment 3 to attorney believes the child’s posi- ney should not reveal the basis of Rule 1.14 explains that “the lawyer tion to be unwise or not in the the request for the appointment should see to [the appointment of a child’s best interest.”27 Even if a of a guardian ad litem to preserve legal representative] where it would child is unable to make an adequate- confidentiality and so as not to serve the client’s best interests.” If ly considered decision, the attorney compromise the child’s position. the conflict between the attorney’s still has the duty to represent the The attorney should not reveal fur- view of the child’s best interests and child’s expressed preferences unless ther information received during the child’s view of his or her own doing so would “place the child at the representation, nor should the interests is severe, the attorney may risk of substantial harm.”28 In New attorney otherwise use the infor- seek to withdraw entirely following Jersey, a court-appointed attorney mation received from the child Rule 1.16 or seek to have a separate needs to be “a zealous advocate for in confidence to advocate a posi- guardian appointed.18 the wishes of the client . . . unless tion not desired by the child. The the decisions are patently absurd attorney is under an affirmative The attorney may not withdraw or pose an undue risk of harm.”29 ethical obligation to seek to have as the child’s counsel and then seek New Jersey’s Supreme Court was a new guardian ad litem appoint- appointment as the child’s guard- skeptical that an attorney’s duty of ed following his withdrawal as ian ad litem, as the child would advocacy could be successfully rec- guardian. If the conflict between then be a former client to whom the onciled with concern for the client’s the attorney’s view of the child’s former attorney/guardian ad litem best interests.30 best interests and the child’s view would be adverse.19 of his or her own interests is In contrast, other states have severe, the attorney may seek to This conclusion is in accord developed a “hybrid” model for withdraw entirely following Rule with many other states.20 For attorneys in child custody cases 1.16 or seek to have a separate instance, Ohio permits an attor- serving simultaneously as counsel guardian appointed. ney to be appointed both as a for the child and as their guardian child’s counsel and as the child’s ad litem.31 This “hybrid” approach Endnotes guardian ad litem.21 Ohio ethics “necessitates a modified applica- 1. Georgia Rules of Professional rules prohibit continued service tion of the Rules of Professional Conduct, Rule 1.14, Comment 1. in the dual roles when there is Conduct.”32 That is, the states fol- 2. Georgia Rules of Professional a conflict between the attorney’s lowing the hybrid model, acknowl- Conduct, Rules 1.2, 1.7. 3. Georgia Rules of Professional determination of best interests edge the “‘hybrid’ nature of the 22 Conduct, Rule 1.7, Comment 4. and the child’s express wishes. role of attorney/guardian ad litem 4. O.C.G.A. § 15-11-98(a) (“In any Court rules and applicable stat- which necessitates a modified appli- proceeding for terminating utes require the court to appoint cation of the Rules of Professional parental rights or any rehearing another person as guardian ad Conduct,” excusing strict adherence or appeal thereon, the court shall litem for the child.23 An attorney to those rules.33 The attorney under appoint an attorney to represent who perceives a conflict between this approach is bound by the cli- the child as the child’s counsel and his role as counsel and as guardian ent’s best interests, not the client’s may appoint a separate guardian ad litem is expressly instructed to expressed interests.34 The attorney ad litem or a guardian ad litem notify the court of the conflict and must present the child’s wishes and who may be the same person as seek withdrawal as guardian ad the reasons the attorney disagrees the child’s counsel”) (emphasis added). litem.24 This solution (withdrawal to the court.35

February 2012 69 5. Id. guardian ad litem is permitted panel_standards.pdf; 6. Kenny A. v. Perdue, 356 F. Supp. until conflict between the roles See also In re Georgette, 785 2d 1353, 1359-61 (N.D. Ga. 2005), occurs, and then the attorney N.E.2d 356, 368 (Mass. 2003). rev’d on other grounds, 2010 WL must petition the court for a new 28. Mass Comm. For Public Counsel 1558980 (U.S. Apr. 21, 2010). guardian ad litem); Ariz. Ethics Servs., Performance Standards, 7. See Padilla v. Melendez, 228 Ga. Op. 86-13, Juvenile Proceedings; Standard 1.6(d) at 11. App. 460, 462 (1997). Guardians (1986) (providing that 29. In re Mason, 701 A.2d 979, 982 8. In re A.P., 291 Ga. App. 690, 691 a “lawyer may serve as counsel (N.J. Super. Ct. Ch. Div. 1997) (2008). and guardian ad litem for a (internal citations omitted). 9. See, e.g., Wis. Ethics Op. E-89- minor child in a dependency 30. See In re M.R., 638 A.2d 1274, 1285 13 (finding no inherent conflict proceeding so long as there is (N.J. 1994). of interest with the dual no conflict between the child’s 31. See Clark v. Alexander, 953 P.2d representation of an attorney and wishes and the best interests of 145, 153-54 (Wyo. 1998); In re guardian but concluding that the child”). Marriage of Rolfe, 216 Mont. 39, if a conflict does arise based on 21. Ohio Board of Comm’rs. on Griev. 51-53, 699 P.2d 79, 86-87 (Mont. specific facts, the attorney’s ethical and Discipline, Op. 2006-5, 2006 1985); In re Christina W., 639 S.E.2d responsibility is to resign as the WL 2000108, at*1 (2006). at 777 (requiring the guardian guardian). 22. Id. at *2. to give the child’s opinions 10. Georgia Rules of Professional 23. Id. consideration “where the child Conduct, Rule 1.2. 24. Id., quoting In re Baby Girl Baxter, has demonstrated an adequate 11. Georgia Rules of Professional 17 Ohio St. 3d 229, 479 N.E.2d 257 level of competency [but] there Conduct, Rule 1.2, Comment 1. (1985) (superseded by statute on is no requirement that the child’s 12. Georgia Rules of Professional other grounds). wishes govern.”); see also Veazey Conduct, Rule 1.14. 25. Id. See also Baxter, 17 Ohio St. v. Veazey, 560 P.2d 382, 390 (Alaska 13. Id. 3d at 232 (“[w]hen an attorney is 1977) (“[I]t is equally plain that 14. See In re Georgette, 785 N.E.2d appointed to represent a person the guardian is not required to 356, 367 (Mass. 2003). and is also appointed guardian advocate whatever placement 15. In re Christina W., 639 S.E.2d 770, ad litem for that person, his first might seem preferable to a client 778 (W. Va. 2006). and highest duty is to zealously of tender years.”) (superseded by 16. See Georgia Rules of Professional represent his client within statute on other grounds); Alaska Conduct, Rule 1.6, specifically the bounds of the law and to Bar Assn Ethics Committee Op. subsection (e). champion his client’s cause”). 85-4 (November 8, 1985)(concluding 17. See Georgia Rules of Professional 26. See Conn. Bar Ass’n Comm. on Prof. that duty of confidentiality is Conduct, Rule 1.6(a) (permitting Ethics, CT Eth. Op. 94-29, 1994 WL modified in order to effectuate disclosure of confidential 780846, at *3 (1994); In re Tayquon, the child’s best interests); Utah information “impliedly authorized 821 A.2d 796, 803-04 (Conn. App. State Bar Ethics Advisory Opinion to carry out the representation”). 2003) (discussing revisions to Conn. Committee Op. No. 07-02 (June 18. See Rules 1.14 (b), 1.16 (b) of the Gen. Stat. § 46b-129a). 7, 2007) (noting that Utah statute Georgia Rules of Professional 27. See Mass Comm. For Public requires a guardian ad litem to Conduct. Counsel Servs., Performance notify the Court if the minor’s 19. See Rule 1.9 of the Georgia Rules Standards, Standard 1.6(b), wishes differ from the attorney’s of Professional Conduct. at 8-10, available at http:// determination of best interests). 20. See, e.g., Wis. Ethics Op. E-89-13, www.publiccounsel.net/ 32. Clark, 953 P.2d at 153. Conflicts of Interests; Guardians private_counsel_manual/private_ 33. Id. (1989) (providing that dual counsel_manual_pdf/chapters/ 34. Id. representation as counsel and chapter_4_sections/civil/trial_ 35. Id. at 153-54; Rolfe, 699 P.2d at 87.

For the most current information on rules and policies, visit the Bar’s website at www.gabar.org/handbook/.

70 Georgia Bar Journal Classified Resources

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February 2012 71 Classified Resources

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