Georgia Gets Competitive

December 2009 Volume 15 Number 4

GBJ Legals Departments 12 12 4 Editor’s Note Georgia Gets Competitive 6 From the President by Erika Birg, Michael Elkon 8 From the Executive Director and Erin Wetty 10 From the YLD President 20 42 Bench & Bar The New Special Master Rule— 48 Office of the General Counsel Uniform Superior Court Rule 46: Life Jackets for the Courts 50 Lawyer Discipline in the Perfect Storm 54 Law Practice Management 28 by Cary Ichter 56 South Georgia Office 58 Section News GBJ Features 60 Casemaker 28 64 Writing Matters 36 State Bar Seeks Continued 68 Professionalism Page Legislative Success in 2010 by Mark Middleton 72 In Memoriam 74 Book Review 30 76 CLE Calendar Cultural Competence in the Notices Courtroom: A Judge's Insight 82 by Hon. Gail S. Tusan 83 Classified Resources and Sharon Obialo 84 Advertisers Index 36 Conversation and a Scorecard: The Impact of the Economy on Diversity in the Profession 54 by Marian C. Dockery

74 Lawyer nneedeed Assistance Program Con dential hhelpelp? Hotline 800-327-9631

Lawyers Recovery Meetings: The Lawyer Assistance Program holds meetings every Tuesday night from 7 p.m. to 9 p.m. at Families First Main Of ce (1105 West Peachtree Street, Atlanta, GA 30357-0948). For further information about the Lawyers Recovery Meeting please contact Steve Brown at 404-853-2850.

he Lawyer Assistance Program 2009-10 (LAP) provides free, con dential Lawyer Assistance assistance to Bar members whose personal problems may be Committee T interfering with their ability to Chairperson practice law. Such problems include stress, Robert T. Thompson Jr., Atlanta chemical dependency, family problems, Vice Chairperson and mental or emotional impairment. Charles B. Pekor Jr., Atlanta Through the LAP’s 24-hour, 7-day-a-week Members con dential hotline number, Bar members *Michael D. Banov, Marietta Henry R. Bauer Jr., Atlanta are offered up to three clinical assessment Frederick Victor Bauerlein, Marietta and support sessions, per issue, with a Robert A. Berlin, Macon counselor during a 12-month period. All Allan Legg Galbraith, Atlanta N. Wallace Kelleman, Stone Mountain professionals are certi ed and licensed Dorothy Y. Kirkley, Atlanta mental health providers and are able to *Joanne Max, Atlanta respond to a wide range of issues. Clinical Robert E. Mulholland, Atlanta Homer S. Mullins, Princeton assessment and support sessions include *William W. Porter, Marietta the following: Darrell P. Smithwick, Lawrenceville A. Thomas Stubbs, Decatur • Thorough in-person interview with the Jeffrey David Talmadge, Roswell attorney, family member(s) or other Lemuel Herbert Ward, Atlanta quali ed person; Executive Committee Liaison • Complete assessment of problems Michael G. Geoffroy, Covington areas; Advisors *Steve Brown, Atlanta • Collection of supporting information Mary S. Donovan, Macon from family members, friends and the Calvin S. Graves, Atlanta LAP Committee, when necessary; and Staff Liaison • Verbal and written recommendations *Sharon L. Bryant, Atlanta regarding counseling/treatment to the *denotes non-attorney person receiving treatment. Editorial Board Quick Dial Donald P. Boyle Jr. Attorney Discipline 800-334-6865 ext. 720 Editor-in-Chief 404-527-8720 Robert Henry Beer Patricia Irene Lee Consumer Assistance Program 404-527-8759 Erika Clarke Birg Hollie G. Manheimer Conference Room Reservations 404-419-0155 Fee Arbitration 404-527-8750 John Clay Bush Olivia Orza CLE Transcripts 404-527-8710 Clayton Owen Carmack Susan Lee Rutherford Diversity Program 404-527-8754 Charles Madden Cork III Hale Elijah Sheppard ETHICS Helpline 800-682-9806 Bridgette Eckerson Paul Gregory Sherman 404-527-8741 Georgia Bar Foundation/IOLTA 404-588-2240 Lynn Gavin Jack P. Smith III Georgia Bar Journal 404-527-8791 Robert Frederick Glass Robert R. Stubbs Lawyer Assistance Program 800-327-9631 Michelle J. Hirsch Kristin H. West Lawyers Foundation of Georgia 404-659-6867 Law Practice Management 404-527-8773 Rajesh Kini Pamela Y. White-Colbert Law-Related Education 404-527-8785 Membership Records 404-527-8777 Editors Emeritus Meetings Information 404-527-8790 Pro Bono Project 404-527-8763 Marcus D. Liner, 04-07 Charles R. Adams III, 89-91 Professionalism 404-225-5040 Rebecca Ann Hoelting, 02-04 L. Dale Owens, 87-89 Sections 404-527-8774 Unlicensed Practice of Law 404-527-8743 Marisa Anne Pagnattaro, 01-02 Donna G. Barwick, 86-87 Young Lawyers Division 404-527-8778 D. Scott Murray, 00-01 James C. Gaulden Jr., 85-86 William Wall Sapp, 99-00 Jerry B. Blackstock, 84-85 Manuscript Submissions The Georgia Bar Journal welcomes the submission of unso- Theodore H. Davis Jr., 97-99 Steven M. Collins, 82-84 licited legal manuscripts on topics of interest to the State Bar L. Brett Lockwood, 95-97 Walter M. Grant, 79-82 of Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 pages, double-spaced (includ- Stephanie B. Manis, 93-95 Stephen E. Raville, 77-79 ing endnotes) and on letter-size paper. Citations should con- form to A UNIFORM SYSTEM OF CITATION (18th ed. 2005). William L. Bost Jr., 91-93 Please address unsolicited articles to: Donald P. Boyle Jr., State Bar of Georgia, Communications Department, 104 Marietta Officers of the State Bar of Georgia St. NW, Suite 100, Atlanta, GA 30303. Authors will be notified of the Editorial Board’s decision regarding publication. Bryan M. Cavan President The Georgia Bar Journal welcomes the submission of news S. Lester Tate III President-Elect about local and circuit bar association happenings, Bar Jeffrey O. Bramlett Immediate Past President members, law firms and topics of interest to attorneys in Georgia. Please send news releases and other information Kenneth J. Shigley Treasurer to: Sarah I. Coole, Director of Communications, 104 C. Wilson DuBose Secretary Marietta St. NW, Suite 100, Atlanta, GA 30303; phone: Amy V. Howell YLD President 404-527-8791; [email protected]. Michael G. Geffroy YLD President-Elect Disabilities Joshua C. Bell YLD Past President If you have a disability which requires printed materials in alternate formats, please contact the ADA coordinator at 404-527-8700 or 800-334-6865. Communications Committee Headquarters Robert J. Kauffman Chair 104 Marietta St. NW, Suite 100, Atlanta, GA 30303 800-334-6865, 404-527-8700, FAX 404-527-8717 Communications Staff Visit us on the Internet at www.gabar.org. Sarah I. Coole Director South Georgia Office Jennifer R. Mason Assistant Director 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Derrick W. Stanley Section Liaison 800-330-0446, 229-387-0446, FAX 229-382-7435 Stephanie J. Wilson Administrative Assistant Coastal Georgia Office 18 E. Bay St. Savannah, GA 31401-1225 877-239-9910, 912-239-9910, FAX 912-239-9970 Publisher’s Statement The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (February, April, June, August, October, December) with a special issue in November by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303. ©State Bar of Georgia 2009. 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 The opinions expressed in the Georgia Bar Journal Atlanta, Georgia and additional mailing offices. Opinions and conclusions expressed in articles herein are those of the authors are those of the authors. The views expressed herein and not necessarily those of the Editorial Board, Communications Committee, Officers or Board of Governors of are not necessarily those of the State Bar of Georgia, the State Bar of Georgia. Advertising rate card will be furnished its Board of Governors or its Executive Committee. upon request. Publishing of an advertisement does not imply endorsement of any product or service offered. POSTMASTER: Send address changes to same address. Editor’s Note

Clarification for Enforcing Commercial Real Estate Loan Guaranties

he authors of Enforcing Commercial Real Estate Under O.C.G.A. § 44-14-161(c) (2002), “[t]he court shall direct that a notice of the [confirmation] hearing shall be Loan Guaranties, published in the October given to the debtor at least five days prior thereto ....” That written notice, generally in the form of a Rule Nisi, is 2009 issue of the Journal, have requested the not required to be issued within the same 30-day period T required for reporting the foreclosure sale, which is refer- following clarification to endnote 28 and the related enced in O.C.G.A. § 44-14-161(a). A Rule Nisi can be obtained at the same time that the report of foreclosure sale text of the article: is filed, but there is no statutory requirement to do so.

State Bar of Georgia’s Annual Fiction Writing Competition Deadline: Jan. 22, 2010 See page 34 for more details.

4 Georgia Bar Journal 730-(

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by Bryan M. Cavan Your Legislator Needs to Hear from You

n the October edition of the Georgia Bar Journal, I dis- to find solutions that will keep the doors of our courtrooms open and the Rule of Law maintained. cussed the extremely difficult budget situation per- In late October, Chief Justice Carol W. Hunstein hosted a meeting of judges, prosecutors, public defenders, meating our state government and the dire conse- private practice lawyers and others representing every I level of our judicial system and the public safety com- quences resulting from continued funding cuts to our judi- munity from every geographic area of the state. Participants reported on the impact of judicial budget cial branch. As anticipated, the cuts and the problems caused by “Now more than ever, it is staff reductions and furloughs, news this month is no better and, as well as less money for train- important that the three ing, technology and basic sup- in fact, is unfortunately much plies. Here is a sampling of what we heard at that meeting: worse. Through the first four branches of our state ■ Our courts began fiscal year months of the current fiscal year, government work together 2010 more than $1 million in debt. Because of a 25 percent state revenues had decreased by to find solutions that will budget cut in June, the Supreme Court was unable to pay bills 15.1 percent—a decline of more keep the doors of our totaling $221,000, and our Superior Courts could not pay than $831 million from last year courtrooms open and the $827,000 worth of bills. ■ District attorneys and public for July through October alone. Rule of Law maintained.” defenders have been required to terminate staff and impose fur- Our courts across the state are loughs on their attorneys. The continuing to struggle to meet their constitutionally immediate impact of furloughs is the delay in the pros- mandated duties in the face of these significant funding ecution of 500 criminal cases each of those days. Fulton cuts. Our judges understand the dilemma facing the County alone has a backlog of 160 murder trials. governor and our legislators in this economic environ- ■ Some courts are placing people charged with crimes ment. However, we cannot allow criminal prosecutions under house arrest because there is no room in the to be halted, child support and child custody issues to county jail. “Higher risk” accused criminals are be left undecided, nor business disputes left unre- being released on bond in increasing numbers. solved. Now more than ever, it is important that the ■ A lawsuit has been filed on behalf of dozens of indi- three branches of our state government work together gent defendants who have been without legal coun-

6 Georgia Bar Journal sel for more than six months Sen. Smith was particularly participation in the effort to main- due to cuts in our public frank in his assessment of the situ- tain judicial funding at an adequate defenders’ budgets. ation, declaring neither the judicia- level. I urge that you join the State ■ Hearing dates for domestic ry’s status as an independent Bar’s Legislative Action Network so cases—including divorce, child branch of government, nor its rela- that you will be kept abreast of support, visitation and cus- tively small budget compared to developments at the Capitol and be tody—are being delayed by 60 other state programs, nor the fact provided with tools for instant con- to 120 days in some circuits. the courts have constitutionally tact with your legislators. ■ Business filings are being han- mandated functions is sufficient to In addition, please take every dled only after the criminal cal- exempt it from additional funding opportunity you have at your endar in many courts, and one reductions. The Legislature is also disposal to help spread the mes- judge said, “We may not get to constitutionally required to have a sage to the public of the impor- them at all.” balanced budget and is not author- tance of sufficiently funded ■ Court-generated revenues that ized to “print money,” he said. courts, whether through a civic go to fund state and local gov- While the legislators’ response club presentation, letter to the ernments have declined by might not have been what we editor or op-ed column in your about $51 million due to the wanted to hear, it is an important local newspaper or one-on-one slowdown in handling cases. reminder to us that legislators have conversations with your friends ■ Budget cuts at the local level are constitutional responsibilities as and neighbors. Up-to-date statis- also taking their toll on the jus- well and they are facing extremely tical and anecdotal information is tice system. Gwinnett County difficult and unprecedented budg- available on the State Bar website District Attorney Danny Porter et decisions. Clearly, as we make at www.gabar.org. recently said a 9 percent cut the case for adequate funding to Finally, make sure both your ordered by the county commis- keep our courthouse doors open, state Senator and Representative sion may force his office to stop we need to focus on the conse- have heard directly from you prosecuting cases for five weeks quences that are occurring and will before they return to the Capitol next year. continue to occur in the lives of next month—not in a confronta- Georgia’s citizens when the wheels tional or threatening manner, Also in attendance were two key of justice slow down or, in some which most likely will have a neg- leaders in the Georgia General cases, grind to a halt. ative effect. We cannot and must Assembly, Sen. Preston Smith (R- Last month, the State Bar not engage in comparisons of our Rome), chairman of the Senate released a new public awareness courts’ funding problems to those Judiciary Committee, and Rep. message on television that I hope of other vital state services like Rich Golick (R-Smyrna), chairman you have already seen. With dra- education, health care and trans- of the House Judiciary Non-Civil matic effect, the message conveys portation, all of which are in budg- Committee—both of whom are to our fellow Georgians real-life et crises of their own influential and integral in examples of what happens in our The case for keeping our court- the budget-writing process as communities when trials and house doors open stands on its members of their respective other critical court services are own merits. This is a public safety Appropriations Committees. halted due to a lack of funding. issue in our communities and an Sen. Smith and Rep. Golick lis- Closing the courthouse doors is economic issue for our state, and tened carefully and patiently to the not an option. the various services of the courts reports of the dire circumstances I have joined our legislative directly impact our citizens. facing our court system and then, advocacy team in meetings with As I noted above, now more when it was their turn to speak, Gov. Sonny Perdue, Lt. Gov. Casey than ever, it is important that the delivered the bad news: Georgia Cagle, House Speaker Glenn three branches of our state govern- lawmakers are now anticipating Richardson and other leaders at the ment work together to find solu- additional substantial revenue Capitol to keep them informed of tions that will keep the doors of our shortfalls through the remainder of the worsening impact that budget courtrooms open and the Rule of this year. While, as lawyers, they cuts are having on keeping law and Law maintained. Let your lawmak- recognize the problems caused by order and delivering justice in our ers know that Georgia’s lawyers an underfunded judiciary, as leg- state. While the strain of the budg- and judges stand ready to work islative budget writers, they simply et crisis is apparent, they have been with them to find solutions. have fewer dollars to appropriate very receptive of the information. than they had two years ago. And We will maintain the dialogue. Bryan M. Cavan is the president of if further budget cuts are required, As the opening of the 2010 leg- the State Bar of Georgia and can be the judicial branch will be expected islative session on Jan. 11 draws reached at [email protected]. to participate. nearer, we need to enlist your active

December 2009 7 From the Executive Director

by Cliff Brashier

Henry Troutman’s Legacy: Helping People in Need

ollowing his death on Oct. 22, Henry B. to the program, personally handling interventions and counseling sessions. Troutman Jr. of Atlanta was remembered for The LAP has been adopted by several other state bars across the nation. The State Bar recognized more than just his three decades of distinguished Troutman’s work in 1998 by presenting him with F the Lifetime Achievement Award for community serv- service in the practice of law. For example, his longtime ice. While designed to assist lawyers, the program’s overriding purpose is to help the public. partner, former Georgia Gov. Carl Sanders, was quoted Whenever a lawyer is experiencing any sort of personal problem, it will eventually impair his or her ability by the Atlanta Journal- to represent clients—often leading to complaints and, Constitution as saying, “I in some cases, disciplinary “One mission of the LAP is to procedures against the Bar think he enjoyed law, but he member. One mission of the prevent clients from being LAP is to prevent clients didn’t feel like it was his des- from being harmed in such harmed in such situations, thus situations, thus serving the tiny. He used it to create a interests of both the public serving the interests of both the and the legal profession. program that could help The impact of the public and the legal profession.” national economic crisis of lawyers and other profes- the past year and a half on the legal profession is well sionals. He was a good man.” documented. Thousands of lawyers across the nation, including several hundred Indeed, the Lawyers Assistance Program (LAP)— here in Georgia, have lost their jobs. They, along with originated by Troutman under the auspices of the State newly admitted Bar members, are finding the employ- Bar of Georgia—has helped countless attorneys ment market tighter than ever. As a result, the LAP has through the years in their struggles with alcohol or seen an uptick in demand for services. drug addictions, as well as battles with depression and “It’s really stressful out there,” says Steve Brown, other mental health issues. As a certified addiction clinical director of the LAP, who is employed by counselor, Troutman devoted his own time and efforts Families First Employee Assistance Program, a

8 Georgia Bar Journal Georgia-based counseling agency ■ Up to three clinical assessment providing peer assistance to their that has been providing these serv- and support sessions per issue colleagues. If you have personal ices for 125 years. “We have seen ■ A half-hour of legal counseling experience or training with recov- an increase in the demand and ■ Continuing care service for up ery from substance use disorders requests for clinical services for to two years after initial contact or mental health issues or simply stress and depression, as well as ■ Referral to a wide range of pub- desire to help your colleagues the financial counseling services lic and private resources and and give something back to the and even legal counseling offered community programs profession, then you are invited under the program.” ■ Peer contact and support to become a volunteer with Along with the Law Practice ■ Confidentiality under State Bar the LAP. Send an e-mail to Management Program, the LAP has rules [email protected] to played a significant role in the State ■ Weekly recovery meetings express your interest. Bar’s efforts to assist unemployed I want to close by emphasizing attorneys with their job searches, State Bar members also have that a vital component of the pro- career development, networking unlimited use of the Families gram is its strict confidentiality. and generally navigating the cur- First Work/Life program, a time- The telephone hotline does not rent legal employment landscape, saving resource that helps them ring at State Bar headquarters. No including the monthly “lunch and stay productive on the job. one on our staff or in Bar leader- learn” programs at the Bar Center Work/Life helps find the best ship knows who is receiving that started in April of this year. options in caring for children, assistance from the LAP. As “This has been a very worthy elderly family members and pets. Henry Troutman urged attorneys effort on the part of the Bar,” The program also gives knowl- thousands of times, please do not Brown said. “Tom Stubbs, who edgeable professional help for hesitate to use this service if you was our Executive Committee liai- financial concerns. Callers receive need it or one of your colleagues son at the time, was instrumental advice, referrals and materials needs it. in bringing that together and link- customized to take into account ing these services.” their individual concerns, finan- Cliff Brashier is the executive The Bar’s Lawyer Assistance cial and geographic needs. director of the State Bar of Committee, chaired by Robert T. The LAP also stands ready to Georgia and can be reached at Thompson Jr., oversees the pro- assist and counsel Bar members [email protected]. gram. The committee helps with the during times of crisis. In October ongoing development and imple- 2008, an act of violence caused an mentation of LAP policies and pro- explosion at a Dalton law firm, cedures and the resolution of specif- resulting in multiple injuries and ic issues and concerns. Committee major damage to the building. members also act as key contacts in “We were in touch immediately their specific geographic location or and had counselors up there areas of interest. “Our committee through our Chattanooga affiliate, members deserve recognition for responding to their needs,” Brown the extraordinary effort they are said. “I personally followed up, putting out, reaching out to assist and we provided direct individual their fellow lawyers,” Brown said. services to those who needed it. We The LAP maintains a 24-hour, continued to follow up for months seven-day hotline (800-327-9631), afterward, with all services provid- which is always answered by a live ed under the Bar program.” operator. During regular business Brown said that while the LAP’s hours, callers are likely to reach scope of services has broadened Brown or his assistant. A statewide over the years, its success has been network of 190 counselors, includ- an outgrowth of the vision of and ing 90 in metropolitan Atlanta, is work started by Henry Troutman on call to handle referrals any Jr. “Henry was a pioneer in this time, day or night. A call to the field and set the precedent for the hotline opens the door to a “one- quality of care, personal involve- stop shop” of services for the ment and follow-up—making sure entire legal profession—Bar mem- people get the help they need.” bers and their families, support The program also relies on vol- staff and law students—including unteer lawyers, judges and law the following: students who are committed to

December 2009 9 From the YLD President

by Amy V. Howell

Making Time for What’s Important

s the year draws to a close, it is hard not to I am participating in an Executive Leadership Program for state leaders and recently had the opportunity to dis- notice how quickly the time has gone by. cuss time management with my mentor. As we discussed how I spent my “free” time, I found myself offering rea- Just yesterday, it was summer, followed by son after reason (excuses) for my failed resolution to A spend more time exercising. My mentor thoughtfully Halloween, and now everywhere you look there are reminded me that “we make time for the things that are important to us.” While this statement may seem ele- holiday decorations. Did you mentary, in that moment the concept was revolutionary. I accomplish everything you often think about spending my “It is hard to be in the time efficiently, and I pride wanted to accomplish in 2009? myself on my organization presence of lawyers and not skills. I had not, however, given At times it feels as though it is serious consideration to the activities that consume my time the fate of every lawyer to be engage in conversations about and how the activities I’ve chosen to engage in reflect on me. consumed with time. Often, it billing hours, busy calendars, Since that conversation, I’ve thought about that principle a is the yardstick by which we conflicting schedules and the lot—that is, I now affirmatively think about each activity that is measure our success and, too challenge of balancing it all.” taking my time, and I acknowl- edge that the activity is one that often, our worth as lawyers. It I’ve chosen to prioritize over others. In doing so, I find myself is hard to be in the presence of lawyers and not engage being more selfish with time, but in a good way. I’m fully engaged in that which I’ve chosen to participate, and I in conversations about billing hours, busy calendars, don’t spend inefficient hours (or even minutes!) worrying about that which I’ve scheduled for later and/or have conflicting schedules and the challenge of balancing it chosen not to schedule at all. Simply put, I think critically about exactly what I do with my time, and I take all. responsibility for the decisions that I’ve made.

10 Georgia Bar Journal Even though it may sound with family, too often we limit our- communities. This is a priority for lofty, that is not really the intent. I selves to these predetermined me, and I will make time to help have no plans to write a self-help days. There will always be an youth achieve in 2010. book or start a blog about opportunity to complete one more my newfound time-management assignment or bill one more hour, Growth and Community skills. I share my discovery with but time with family is both pre- Commitment you, as lawyers and as peers who cious and fleeting. During the may be feeling the pressure of the upcoming holidays and through- Although I am only halfway impending close of 2009. While I out 2010, I will prioritize family. through my term as YLD president, reflected about using my time it has already been an experience efficiently and strategically, it Service to Others of incredible personal growth and became clear to me that how I This value has shaped not only professional development. I choose to spend my time reflects my professional path, but it is also belong to many communities, and, my priorities. And, as I looked at important personally. Although whether as a parent, a government my priorities, as reflected by the many profess a hope to leave their lawyer, a child advocate or as YLD time they take, I realized that I environment and community bet- president, I am committed to invest- was not giving enough time that I ter than they found it, I intend to ing my time to these communities should to those that I thought prioritize this value in 2010. that give so much to me. I feel I do were my priorities—those things not have the luxury of just being that I want to be my priorities. So, At-Risk Youth present, I am obligated to engage, as I prepare to think about this My work involves a commit- to give back and to say “thank year’s New Year’s resolutions, I ment to seeing youth develop into you.” As such, the YLD and its mis- am thinking not about what I productive members of society. sion remains one of my top priori- want to do differently. I’m This commitment is born from ties. I look forward to the coming focused on my priorities and both an obligation to hold youth year, and I am committed to engag- ensuring that I give them the time accountable for the harms they ing in new opportunities for growth that they deserve. may cause in communities, but and development. The quest for a The following are my list of pri- also from a belief in the opportu- new challenge is never ending. orities for 2010. nity that each of us has to change Among the many communities of the direction of a young life. I which I am honored to be a part, I Family believe in a child’s ability to grow will continue to make time for all However you define family, and develop. I understand that they bring in 2010. whether by biology or otherwise, children are subject to their envi- these are the folks who love us, ronment and caretakers. I know Amy V. Howell is the president of truly know us, ground us and who with nurturing and guidance the Young Lawyers Division of the give our world perspective. While young people can achieve great State Bar of Georgia and can be the holiday season promises time things and help to create strong reached at [email protected].

Consumer Pamphlet Series The State Bar of Georgia’s Consumer Pamphlet Series is available at cost to Bar members, non-Bar members and organizations. Pamphlets are priced cost plus tax and shipping. Questions? Call 404-527-8792. The following pamphlets are available: Advance Directive for Health Care Auto Accidents Bankruptcy Buying a Home Divorce How to Be a Good Witness How to Choose a Lawyer Juror’s Manual Lawyers and Legal Fees Legal Careers Legal Rights of Nursing Home Residents Patents, Trademarks and Copyrights Selecting a Nursing Home Selecting a Personal Care Home Wills

Visit www.gabar.org for an order form and more information or e-mail [email protected].

December 2009 11

A Look at the Law

Georgia Gets Competitive

by Erika Birg, Michael Elkon and Erin McPhail Wetty

magine yourself sitting in your office one to these sorts of restrictive covenants, certainly employment agreements of this nature cannot be afternoon and a new, prospective client that difficult. To survey the field, you first look for a statute on point. You find O.C.G.A. § 13-8-2.1 named Spectre Consulting calls. Spectre is covering restrictive covenants, but you determine I quickly that the Supreme Court of Georgia struck relocating its headquarters to Georgia from Las the statute down shortly after it was passed.1 So, you then decide to review applicable case Vegas, which means relocating the entire execu- law by using computer research. The results you find are daunting. Your search for the term tive team, as well as all of the company’s “non-compet!” yields 250 results; “non-solicit! /p customer” yields 36; and “‘confidential infor- researchers and sales representatives. Because mation’ /p disclos!” yields 86. Your search further reveals that Georgia does not reform or Spectre zealously guards its confidential infor- blue-pencil agreements, so any flaw in a provision will render that provision unenforceable. mation and its business relationships, it asks you To draft proper covenants for this demanding client, you will need to wade through a thicket to prepare employment agreements for its of cases to glean the applicable rules. You real- ize that Georgia’s current legal regime govern- employees moving to Georgia. Spectre wants the ing restrictive covenants can best be described as death by a thousand paper cuts. agreements to be enforceable in Georgia and to The Georgia Legislature Acts include non-compete, non-solicitation and non- Your dilemma illustrates a primary rationale for the Georgia Legislature’s passing of HB 173 to disclosure covenants. govern enforcement and interpretation of restrictive covenants in the commercial arena.2 The task seems simple enough at first. Currently, there are no clear rules governing Although you have heard that Georgia is hostile restrictive covenants; this leaves employees,

December 2009 13 employers and most practitioners The statute does not apply highly confidential and trade in the dark as to what is permissi- retroactively, so the existing law on secret information” belonging to ble. The new statute sets forth restrictive covenants will remain the company.7 In connection with ground rules for restrictive relevant for agreements entered his employment, the executive covenants. It addresses the classes into prior to that date. Because HB signed a non-competition agree- of employees who can sign restric- 173 is intended to and does change ment forbidding him from provid- tive covenants, the types of agree- the law to overcome certain judi- ing services in competition with ments that are covered and, most cially developed anomalies, how- BellSouth or its affiliated entities to significantly, the standards for eval- ever, many employers may wish to any “entity which provides prod- uating such covenants. It empow- plan prospectively for the new law. ucts or services identical or similar ers courts to modify covenants, so to those provided by BellSouth” that employers can enforce provi- How Does HB 173 within the territory where the sions that protect their legitimate Change the Law? employee had provided services interests, but no more. for an 18-month period after termi- Gov. Sonny Perdue signed HB Below are seven particular nation.8 After announcing his res- 173 after the House and Senate had instances in which the current ignation from BellSouth, the exec- passed it by large margins. By its common law creates difficulties utive accepted a position as chair- own terms, however, the law will for unwary businesses and how man of the board of directors and not go into effect until Georgia’s vot- the new statute will lead to a chief executive officer of Sprint ers ratify a proposed constitutional different result. Corporation, a primary competitor amendment in November 2010. The of BellSouth.9 Legislature conditioned HB 173’s Problem 1: Should We Treat The Court of Appeals held that effectiveness upon the constitutional All Employees the Same? BellSouth could not prevent the amendment because of the Supreme Georgia courts apply strict executive from working for Sprint Court of Georgia’s previous rejec- scrutiny to restrictive covenants in because the non-compete provi- tion of O.C.G.A. § 13-8-2.1. Shortly employment agreements, which sion was unenforceable. In particu- after that statute became law, the means that the court will not lar, the Court held that, as the Supreme Court ruled that the uphold the covenant unless it is agreement was drafted, the geo- Legislature had exceeded its consti- unassailable in every way.4 It also graphic reach of the non-compete tutional authority by “authoriz[ing] means that a trial court may not provision could not be known contracts and agreements which consider the level of an employee until the last date of the executive’s may have the effect of or which are within an organization in deciding employment.10 As a result, the intended to have the effect of defeat- whether a particular covenant is agreement violated Georgia law. ing or lessening competition or reasonable—all employees must be The Court’s decision seems encouraging monopoly.”3 treated alike. For example, if a CEO inequitable because the Court Because HB 173 contains lan- leaves her company and heads applied rules designed to protect guage authorizing modification or straight to a competitor, armed employees who have significantly partial enforcement of restrictive with all of the confidential and pro- less bargaining power than the covenants, rather than subject HB prietary business information that employer. That same policy ration- 173 to constitutional uncertainty, makes the company tick, then ale does not translate well to a case the Legislature chose to condition Georgia courts will apply the same in which a top executive negotiates its effectiveness upon clarifying the analysis and scrutiny to her non- a lucrative employment contract to Legislature’s authority in this competition agreement as they lead a major corporation. arena. Accordingly, the Legislature would to a non-competition agree- To avoid situations similar to will consider a resolution in the ment for a sales associate straight those that occurred with BellSouth’s 2010 session that would put a out of college with no experience in senior executive, the new legislation constitutional amendment on the the field.5 allows employers to identify specif- November 2010 ballot. The resolu- Such an approach often yields ic competitors as prohibited tion and amendment, which are inequitable outcomes, as was aptly employers during the period of the still under consideration, would, in illustrated in a recent case from the non-compete.11 Under the statute, effect, authorize the Legislature to Court of Appeals, BellSouth Corp. v. BellSouth could have listed Sprint enact legislation in this arena and Forsee.6 The former employee was as a prohibited employer, and a authorize courts to enforce a cov- BellSouth’s vice chairman of oper- court should have enforced this rea- ered agreement only to the extent ations; he served as the chairman sonable restriction. This provision that it is reasonable. If the amend- of the board of directors for also gives employers added flexibil- ment passes the Legislature and is Cingular Wireless; and there was ity for employees who move offices ratified by the voters, then HB 173 no doubt that given his role, he but are consistently competing will become effective. was “intimately familiar with against a few, known companies.

14 Georgia Bar Journal More significant, the statute during his employment,” because types of security systems in a allows courts to adjust overly Smith and the employer do not seven-county area for a two-year broad covenants to make them rea- know the office(s) at which Smith period after termination: “burglar sonable and enforceable.12 Thus, ultimately will work during the & fire alarms, Closed Circuit the courts will be able to account course of his employment. Georgia TV, Intercoms, Telephone & TV for the factual differences in each law also requires that an employer Hook ups, Central Vacs and situation. For example, judges can define with precision the scope of Medical Alert, or other security sys- take into account whether they are activity covered by a non-compete. tems ....”16 When the employee dealing with a senior executive or An employer cannot prevent an resigned and immediately started a mid-level programmer when employee from working for a com- competing in the restricted area, his determining what restriction is petitor “in any capacity.”14 former employer sued.17 The Court appropriate in a particular situa- Instead, the employer has to define of Appeals held that the non-com- tion. Georgia can dispense with its what tasks the employee is going pete was unenforceable under one-size-fits-all approach to non- to perform and then prohibit the Georgia law. Its reasoning was that, compete analysis. employee from performing those although the employer had shown same tasks for a new employer that the employee had worked in Problem 2: Must an after employment. the seven-county area and that he Employer be a Fortune The rub is that the employer not had sold, leased or serviced the Teller? only has to have a precise job various types of security systems As noted above, under Georgia description prepared, but that offered by the employer, the employ- law, the exact geographic scope of description has to be 100 percent er had not shown that the employee had a non-compete provision has to be accurate. Quite simply, there are no sold, leased and serviced each type determinable at the time that the silver medals for coming close; wit- of security system in each of the agreement is signed.13 An employ- ness Beacon Security Technology, Inc. seven counties.18 er cannot use a provision along the v. Beasley.15 In Beacon, the employee New Atlanta Ear, Nose & Throat lines of “employee Smith will not entered into a non-compete provi- Associates, P.C. v. Pratt19 is another compete within a ten-mile radius sion that forbade him from selling, example. In New Atlanta, five of any office at which he is based leasing or servicing the following physicians entered into non-com-

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December 2009 15 pete provisions with a medical by providing that a post-employ- competitive acts during the course practice that prevented them from ment restriction is enforceable if it of employment. practicing medicine for an 18- gives “fair notice of the maximum This past summer, in Atlanta month period after termination reasonable scope of the restraint Bread Co. v. Lupton-Smith,26 the within an eight-mile radius of the . . . even if the description is gen- Supreme Court of Georgia held practice’s offices in certain cities.20 eralized or could possibly be stat- that in-term covenants are subject The Court of Appeals held the pro- ed more narrowly to exclude to the same strict scrutiny as post- vision unenforceable because the extraneous matters.”23 The statute term covenants.27 The Court’s practice’s offices could move with- also creates a safe harbor for “any decision effectively invalidated a in the towns, and therefore, the good faith estimate of the activi- host of existing agreements that geographic scope of the non-com- ties, products, and services, or contain such provisions, as most pete could shift, if ever so slight- geographic areas, that may be employers and attorneys do not ly.21 For instance, the practice’s applicable at the time of termina- think to add precise limits on geog- Marietta office twice moved a half- tion.”24 This language changes the raphy and scope of activity when mile over the course of the physi- approach that an employer may drafting paragraphs that forbid in- cians’ employment.22 Because the take when preparing a non-com- term competition. The presence of medical practice used the term pete provision. The use of “fair an unenforceable in-term covenant “Marietta [office]” as opposed to, notice” and “good faith” put the also will invalidate any other for example, “123 Main Street, onus on the employer to do its non-compete or non-solicitation Marietta, Georgia,” it lost the bene- best in estimating the employee’s covenants contained in the same fit of its bargain with its physicians. duties in the coming months and agreement.28 Thus, an unwary Beacon and New Atlanta demon- years, but the employer will not employer could pay great attention strate that an employer sometimes be penalized if it did not predict to drafting non-compete and non- has to be a fortune teller to enforce the future perfectly. solicitation covenants that comply a non-compete provision in The new statute also defines the with the various requirements Georgia. An employer has to out- legitimate business interests that under Georgia law, only to have all line the exact geographic bound- an employer can use to support the of its careful work undone by a aries to be encompassed before the enforcement of a restrictive simple “you will not compete dur- employee ever starts. Moreover, it covenant to include trade secrets ing the term of employment” para- is not enough to define the counties and other confidential information, graph. This rule appears to be in which an employee will work “[s]ubstantial relationships with unique to Georgia and presents a and the tasks that an employee will specific prospective or existing cus- special danger to practitioners who perform; the employer also has to tomers,” goodwill and “[e]xtraor- are not familiar with Georgia com- ensure that the employee will per- dinary or specialized training.”25 mon law on restrictive covenants. form each act in each specified Thus, courts will be able to pay HB 173 removes this element of county during his employment. more attention to whether a restric- surprise by explicitly eliminating This is not a concern for employees tion goes too far in protecting an the trap embodied by Atlanta Bread who perform one task in one area, employer’s actual interests and less Co. HB 173 provides that a restric- such as an accountant whose clients to the question of whether the geo- tion on competition that operates are all in Bibb County. It is a con- graphic scope of a non-compete during the term of a contract “shall cern for an employee who will be shifted slightly. not be considered unreasonable performing multiple tasks in a larg- because it lacks any specific limita- er area, such as an accountant who Problem 3: The Pitfalls of tion upon scope of activity, dura- will be performing accounting, tax Restricting Employees During tion, or geographic area as long as and audit services for clients in Their Term of Employment it promotes or protects the purpose Bibb, Monroe, Houston and Jones Most Georgia employers and or subject matter of the agreement counties. With every change in an attorneys have a general under- or relationship or deters any employee’s activities or assigned standing that the courts of this potential conflict of interest.”29 area of responsibility, the employer state will apply strict scrutiny to Accordingly, under HB 173, must update its agreements. For restrictive covenants that cover an employers can ensure by contract example, if the home office moves a employee’s activities after the end that their employees are not serv- half-mile down the street, then of the employment relation- ing two masters. those employees may have to sign ship. They do not, however, pay new non-compete agreements, similar attention to common in- Problem 4: What Do You increasing the business’s adminis- term covenants. Such covenants Mean by Contact? trative burdens. include basic provisions that set Given the challenges in drafting The new statute addresses the forth that an employee may not and enforcing a restrictive Beacon and New Atlanta problems work for a competitor or perform covenant based on a geographic

16 Georgia Bar Journal area, many lawyers advise clients tact” now expressly includes Problem 6: Confidential to choose instead a client-based knowledge of confidential infor- Information Has an restriction to prevent the former mation as a valid basis for a cus- Expiration Date employees from soliciting customer non-solicitation provision.35 For many classes of employees, tomers. Georgia law currently The statute also expands the defini- non-disclosure of confidential requires that employers limit their tion of “material contact” to information provisions are the customer non-solicitation provi- include customers: (1) whose deal- most important means for an sions to customers with whom the ings with the employer were employer to protect its business. signing employee had actual con- supervised by the signing employ- For instance, technical employees tact or a relationship (unless the ee; or (2) who received products or such as computer programmers or provision is limited in territory).30 services, upon whose sale the sign- laboratory researchers are impor- The problem arises in the courts’ ing employee received compensa- tant to employers because of their judicially created definition of tion.36 As a result, employers can knowledge of ongoing projects. “contact,” which often does not better protect the business relation- High-level executives may bring sufficiently protect an employer’s ships to which they expose their value to the company because of customer relationships. employees. their ability to prepare and execute For example, an employer lost a long-term business plans. Under case when the Court of Appeals Problem 5: What if There is existing law, non-compete provi- applied the bright-line rule that a a Mistake? sions do not work for these customer non-solicitation covenant Under current case law, employees because they can do is invalid if it does not contain a Georgia courts have adopted a their work anywhere in the world geographic limitation and it peculiar and unforgiving rule: if and because there is often no geo- includes any customers with whom one part of a non-competition or graphic limit to their jobs. Non- the employee did not have actual a customer non-solicitation of solicitation of customers provisions and direct contact.31 A prohibition employees covenant is unenforce- do not work because these employ- against “contacting any customers able, then not only does that ees’ roles frequently do not involve about whom [the former employee] covenant become unenforceable management of specific customer at any point had confidential or in its entirety, but all other non- relationships. Thus, an employer proprietary information” was competition and customer non- can best protect itself with a non- deemed overbroad because the for- solicitation covenants in that disclosure provision that states that mer employee had not necessarily agreement become unenforceable, the employee will not use or dis- had actual and direct contact with even if they would have been inde- close the employer’s confidential each customer about whom she pendently reasonable.37 information, as that term is defined had learned such confidential infor- This creates special risks for in the employment agreement. mation.32 The Court reached this employers in drafting non-com- There is one quirk of Georgia holding even though the former pete provisions. On the one hand, a law that creates difficulty in using employee received on-the-job train- non-compete often makes sense in non-disclosure covenants. Under ing from the employer’s president, light of an employee’s duties, train- current law, a non-disclosure worked with lists of the employer’s ing and exposure to relationships. covenant has to contain a time limit customers, and was introduced to On the other hand, non-compete (except as to trade secrets).39 many of the company’s customers provisions are hard to enforce Georgia is one of only two states and suppliers.33 The opinion does because they require a leap of faith with such a requirement.40 Most not reveal that either side alleged by employers that the employee’s other states permit non-disclosure that there were customers about job is going to play out as predict- provisions that prevent the use or whom the employee learned confi- ed. If events do not occur as disclosure of confidential informa- dential information, but with planned, then not only is the non- tion for as long as the information whom she did not have actual con- compete provision going to be remains confidential. tact; the mere fact that such cus- unenforceable, but the customer This requirement creates two tomers could exist was enough to non-solicitation provision will go issues. First, the fact that the invalidate the provision. In the end, with it. Thus, employers take major requirement is so uncommon the former employee was allowed risks by even attempting to include is problematic for out-of-state to compete against her former non-compete provisions in their employers and attorneys. Second, employer immediately after resign- agreements with Georgia employ- and more important, the require- ing, despite her prior promise not ees. The statute removes this ment leaves employers unable to to do so.34 unusual disincentive by permitting protect their confidential informa- The new statute cures this prob- courts to enforce otherwise prob- tion even when they retain a legit- lem by defining “material contact.” lematic restrictions to the extent imate interest in doing so. The definition of “material con- that the agreement is reasonable.38 Consider, for instance, a high-level

December 2009 17 executive for a major corporation has stated, “The ‘blue pencil’ center-point of the restricted terri- who prepared and implemented a marks, but it does not write.”44 tory could hypothetically move detailed, highly confidential, five- In the end, Georgia law ends up 2,600 feet. Non-solicitation clauses year business plan. The plan lays reaching some harsh results when fail because an employer did not out the direction of the company, applied to agreements involving the want its former employee soliciting new markets and products to be sale of businesses for large sums. customers about whom she learned developed and potential targets For instance, in Harmrick v. Kelley, sensitive information. Multiple for strategic acquisitions. The cor- the Court of Appeals deemed a non- clauses fail because an employer poration might not be able to pro- compete provision executed in required an employee not to com- tect the executive’s knowledge of connection with the sale of a busi- pete during the term of employ- the company’s plan as a trade ness unenforceable because it ment. Non-disclosure covenants secret,41 so a non-disclosure agree- sought to prevent competitive acts fail because they do not contain ment provision would be critical. “in a seventy-five (75) mile radius time limits, even when the infor- If, however, the executive has a of the Metro Atlanta, Georgia mation that they seek to protect two-to-three year time limit in her area.”45 The Court concluded that may be confidential for years. non-disclosure provision (as is cus- “Metro Atlanta” was impermissibly The new regime shifts the focus tomary in Georgia), then the vague.46 Rather than use any one of of non-compete litigation from organization cannot protect its a number of specific definitions for legal issues to factual ones. In confidential business plan for the “Metro Atlanta,” such as the this respect, litigating restrictive life of the plan. The company’s Standard Metropolitan Statistical covenant matters has the possibili- only alternative would be to Area designated by the U.S. Census ty of becoming more expensive, include a five-year time limit in its Bureau or the counties included in but courts and the parties will be non-disclosure provision and then the Atlanta Regional Commission more likely to reach a just result hope that Georgia courts would (both of which were referenced in based on the circumstances. More uphold it in the absence of case law the opinion), the Court found that it important, attorneys who are not sustaining anything longer than a could not save the provision specialists in this area will be able two-year time limit. because it could not add terms; it to learn and apply the rules that The new statute addresses this could only strike them.47 govern a dispute, as they are laid dilemma by stating that “[n]othing The new statute permits courts out in the statute. So, when Spectre in this article shall be construed to to enforce restrictive covenants in calls, you will be able to draft the limit the period of time for which a commercial and employment requested employment agreements party may agree to maintain infor- agreements to the extent that they without having to take a machete mation as confidential . . . for so are reasonable, thus preventing to the underbrush shaped by a for- long as the information or material odd results from Georgia’s present, est of hundreds of cases and with- remains confidential ....”42 In limited version of blue-penciling.48 out worrying that you missed a other words, Georgia employers, like Moreover, the new statute specifi- rule in one of them. employers in 48 other states, will be cally instructs courts to give effect able to protect their confidential to the intent of the parties when Erika C. Birg is a information “for so long as that enforcing a restrictive covenant.49 partner with Seyfarth information remains confidential.” This is an especially useful man- Shaw, LLP, in its The relevant question will be date for instances such as the one Atlanta office, where whether the information is truly con- discussed above, where the intent her practice focuses fidential, not whether the agreement of the parties was clear when they on commercial litiga- contains an oft-arbitrary time limit. used the term “Metro Atlanta.” tion, including contract, busi- Thus, the court can give effect to ness tort and trade secret mat- Problem 7: Is it Really All the parties’ intent, as is the cardinal ters. Birg received her under- or Nothing? rule of contractual interpretation.50 graduate degree with distinction Although Georgia courts review from the University of North employment agreements under Conclusion Carolina at Chapel Hill and her an all-or-nothing approach, courts Georgia’s new restrictive covenant J.D. from Emory University may “blue-pencil” restrictive statute updates how non-compete, School of Law. Following law covenants contained in sale-of- non-solicitation and non-disclosure school, Birg clerked for the Hon. business agreements.43 In other covenants will be interpreted. At Stanley F. Birch Jr. on the U.S. words, courts are authorized to present, restrictive covenant cases Court of Appeals for the 11th mark through certain provisions in rise and fall on common law rules Circuit and then for the Hon. a sale-of-business agreement, but that, upon closer examination, are Willis B. Hunt Jr. on the U.S. they may not otherwise reform the often unusual and arbitrary. Non- District Court for the Northern provisions. As the Supreme Court compete clauses fail because the District of Georgia.

18 Georgia Bar Journal Michael Elkon is an barred by GA. CONST. art. III, § 6, 359 S.E.2d 148, 155 (1987), would associate with Seyfarth ¶ V(c) (1983), which states, “The itself be unenforceable as an imper- Shaw LLP’s litigation General Assembly shall not have missible restraint on trade. the power to authorize any con- 28. Atlanta Bread Co. v. Lupton- department in Atlanta tract or agreement which may Smith, 292 Ga. App. 14, 19-20, 663 and is a member of have the effect of defeating or less- S.E.2d 743, 748 (2008), aff’d, 285 Ga. the firm’s Trade ening competition, or encouraging 587, 679 S.E.2d 722 (2009). Secrets, Computer Fraud & Non- a monopoly, which are hereby 29. O.C.G.A. § 13-8-56(4) (Supp. 2009). Competes practice group. His declared to be unlawful and void.” 30. Dougherty, McKinnon & Luby, HB 173 keeps the language in P.C. v. Greenwald, Denzik & practice focuses on advising § 13-8-2.1(g)(1) that the Supreme Davis, P.C., 213 Ga. App. 891, 894, clients and litigating issues regard- Court found unconstitutional in 447 S.E.2d 94, 96 (1994). ing restrictive covenants, trade Jackson & Coker. 31. Trujillo v. Great S. Equip. Sales, secrets and the duty of loyalty. 4. White v. Fletcher Mayo Assocs., LLC, 289 Ga. App. 474, 477-78, 657 Inc., 251 Ga. 203, 204, 303 S.E.2d S.E.2d 581, 583-84 (2008). Erin McPhail Wetty is 746, 748 (1983). 32. Id. at 477-78, 657 S.E.2d at 584. 5. But see Malice v. Coloplast Corp., 33. Id. at 475, 657 S.E.2d at 582. an associate in the 278 Ga. App. 395, 400, 629 S.E.2d 34. Id. at 478-79, 657 S.E.2d at 584-85. Labor & Employment 95, 99-100 (2006) (referencing bar- 35. O.C.G.A. § 13-8-51(10)(C) (Supp. Department of gaining power of high-level execu- 2009). Seyfarth Shaw, LLP. tive when upholding arbitration 36. Id. § 13-8-51(10)(B), (D). She has experience in decision enforcing nationwide 37. Advance Tech. Consultants, Inc. v. non-compete provision). Roadtrac, 250 Ga. App. 317, 320, assisting clients in protecting their 6. 265 Ga. App. 589, 595 S.E.2d 99 551 S.E.2d 735, 737 (2001). valuable proprietary information, (2004). 38. O.C.G.A. § 13-8-53(d) (Supp. 2009). including investigation of poten- 7. Id. at 589, 595 S.E.2d at 101. 39. Pregler v. C&Z, Inc., 259 Ga. App. tial theft or misuse of client trade 8. Id. at 594, 595 S.E.2d at 104. 149, 152, 575 S.E.2d 915, 917 (2003). secrets and confidential informa- 9. Id. at 589, 595 S.E.2d at 101. 40. Wisconsin is the other state with tion, as well as experience in 10. Id. at 596, 595 S.E.2d at 105. such a requirement. See Gary 11. O.C.G.A. § 13-8-56(2)(B) (Supp. Van Zeeland Talent, Inc. v. interpreting, enforcing and litigat- 2009). Sandas, 267 N.W.2d 242, 250 ing non-competition agreements 12. Id. §§ 13-8-53(d), 13-8-54. (Wis. 1978). and defending against claims of 13. AGA, LLC v. Rubin, 243 Ga. App. 41. Compare Stone v. Williams Gen. deceptive trade practices. McPhail 772, 774, 533 S.E.2d 804, 806 (2000). Corp., 266 Ga. App. 608, 611-12, 597 Wetty also has experience in a 14. Stultz v. Safety & Compliance S.E.2d 456, 459-60 (2004) (holding Mgmt., Inc., 285 Ga. App. 799, 802, that a trial court properly instruct- variety of legal areas relating to 648 S.E.2d 129, 132 (2007). ed a jury by stating that a trade employment, including discrimi- 15. 286 Ga. App. 11, 648 S.E.2d 440 secret must be in tangible form), nation, harassment and retalia- (2007). rev’d on other grounds, 279 Ga. 428, tion actions, as well as wage and 16. Id. at 11-12, 648 S.E.2d at 441. 614 S.E.2d 758 (2005), with Essex hour matters, under both federal 17. Id. at 12, 648 S.E.2d at 441. Group, Inc. v. Southwire Co., 269 and state law. 18. Id. at 13, 648 S.E.2d at 441. Ga. 553, 556-57, 501 S.E.2d 501, 504 19. 253 Ga. App. 681, 560 S.E.2d 268 (1998) (holding that former employ- (2002). ee’s knowledge of a logistics system Endnotes 20. Id. at 682-83, 560 S.E.2d at 270. constituted a trade secret and there- 1. Jackson & Coker, Inc. v. Hart, 261 21. Id. at 686, 560 S.E.2d at 272. fore upholding an injunction Ga. 371, 405 S.E.2d 253 (1991). 22. Id. at 686, 560 S.E.2d at 272. against the former employee pre- 2. Codified at O.C.G.A. §§ 13-8-2, 13- 23. O.C.G.A. § 13-8-53(c)(1) (Supp. 2009). venting him from working on such 8-2.1, 13-8-50 to -59 (Supp. 2009). 24. Id. a system for competitor). 3. Jackson & Coker, 261 Ga. at 372, 405 25. Id. § 13-8-51(9). This definition is 42. O.C.G.A. § 13-8-53(e) (Supp. 2009). S.E.2d at 254. Specifically, the virtually identical to the definition 43. Hudgins v. Amerimax Fabricated Supreme Court took issue with of legitimate business interests Prods., Inc., 250 Ga. App. 283, 285, O.C.G.A. § 13-8-2.1(g)(1) (Supp. found in Florida’s restrictive 551 S.E.2d 393, 395-96 (2001). 1990). That section provided that covenant statute. FLA. STAT. 44. Hamrick v. Kelley, 260 Ga. 307, 308, “[e]very court of competent juris- § 542.335(1)(b) (2009). 392 S.E.2d 518, 519 (1990). diction shall enforce through any 26. 285 Ga. 587, 679 S.E.2d 722 (2009). 45. Id. at 307, 392 S.E.2d at 518. appropriate remedy every contract 27. A strange effect of Atlanta Bread Co. 46. Id. at 308, 392 S.E.2d at 519. in partial restraint of trade that is is that a contractual recitation of the 47. Id. at 308, 392 S.E.2d at 519. not against the policy of the law or common law duty of loyalty, which 48. O.C.G.A. § 13-8-53(d) (Supp. 2009). otherwise unlawful.” The Court requires that an agent not solicit 49. Id. § 13-8-54(b). rejected this effort as one to customers or perform other similar 50. Rushing v. Gold Kist, Inc., 256 Ga. “breathe life into contracts other- acts, see, e.g., E. D. Lacey Mills, Inc. App. 115, 117, 567 S.E.2d 384, 387 wise plainly void,” 261 Ga. at 372, v. Keith, 183 Ga. App. 357, 362-63, (2002). 405 S.E.2d at 255, and therefore

December 2009 19 A Look at the Law

The New Special Master Rule—Uniform Superior Court Rule 46: Life Jackets for the Courts in the Perfect Storm

by Cary Ichter

eorgia courts, like those in so many other

jurisdictions, are facing a perfect storm: G resources are dwindling, budgets are drying up, dockets are burgeoning and litigation is becoming increasingly complex and demanding. As most participants in the Georgia judicial system are painfully aware, the courts, judges, judicial assistants, court administrators and everyone else who works with the court system are going to have to learn to do more with less.

Georgia’s court budget was cut by $12 million in the 2009 fiscal year (more than 8 percent) and by $7 million (less than 8 percent) in the 2010 fiscal year.1 Pay has been frozen; benefits have been cut; hiring has been stopped; furloughs have been commenced; and the move towards an electronic case management system with electronic filing and the centralized processing of cases has been put on hold. To multiply and magnify the difficulties that the courts face with fewer resources and more demands,

20 Georgia Bar Journal the courts must now also deal with “The regime established by U.S.C.R. 46 the seemingly inscrutable myster- ies of electronic discovery. In allows the courts to refer matters to masters short, the courts are navigating through a perfect storm—or at for pre-trial, trial and post-trial activities, least a nasty downpour. The New Uniform assisting in everything from investigating Superior Court Rule 46 and reporting on matters identified by the Recognizing the strain that this confluence of events will place court to supervising implementation of on the effective workings of the courts, the Supreme Court court orders and overseeing depositions of Georgia recently approved Uniform Superior Court Rule 46 taken outside of the court’s jurisdiction.” (U.S.C.R. 46), clarifying when, why and how trial courts can appoint special masters to assist in terms and procedure for fixing the measures after the court determined the supervision of the litigation master’s compensation.8 liability.12 By appointing the master, process.2 The new rule, which par- Through the use of special mas- the court avoided a long, costly rots to a significant extent the lan- ters, the courts can delegate round of hearings to fashion a reme- guage of Rule 53 of the Federal resource-consuming aspects of case dy. The master’s specialized knowl- Rules of Civil Procedure, implicit- oversight and management. In so edge of the issues underlying the ly recognizes that “[p]articularly doing, the courts can and do pro- case allowed for a more appropriate in state court litigation, . . . there mote the efficient, effective, remedy in a shorter amount of time. are both opportunities and needs thoughtful and prompt resolution Likewise, in Berne Corp. v. for the litigation benefits masters of issues and cases. The enhance- Government of the Virgin Islands,13 can provide.”3 ment of the speed and quality of jus- following nearly a decade of intri- U.S.C.R. 46 details a litany of sit- tice realized by the use of special cate litigation, the district court uations in which the courts are masters is not restricted to the par- appointed a special master to mon- empowered to appoint a special ticular case to which the master is itor governmental compliance with master, upon motion of any party appointed. By freeing the courts a settlement agreement that or upon the court’s own motion. from the daily supervision of cases reformed the territorial real prop- The regime established by U.S.C.R. that are metastasizing motions erty tax assessment system.14 The 46 allows the courts to refer mat- machines, judges are better able to use of the master allowed the court ters to masters for pre-trial, trial give due consideration to other, less to ensure compliance without hav- and post-trial activities, assisting in controversial and less resource-con- ing to act as an enforcement everything from investigating and suming matters on their dockets. gatekeeper or to entertain further reporting on matters identified by The use and effectiveness of spe- enforcement litigation. Both the court4 to supervising imple- cial masters in the federal courts Conservation Chemical and Berne mentation of court orders5 and are well-documented.9 Masters illustrate but a slice of the benefits overseeing depositions taken out- serve vital pre-trial and post-trial that masters bring to complex liti- side of the court’s jurisdiction.6 functions in navigating complex gation, acting as proxies for the Under U.S.C.R. 46, the order litigation, allowing the parties to court to help the parties navigate appointing a special master must present and articulate their posi- lawsuits and reach fair outcomes. describe (1) the master’s duties tions more fully and allowing the Currently in Georgia, special and limits on his or her authority; courts to make reasoned adjudica- masters assist the courts in han- (2) the circumstances, if any, tions. Put simply, “[s]pecial mas- dling everything from complex under which the master may com- ters serve critically important func- commercial cases to mass tort municate with the parties on an ex tions in our civil justice system.”10 cases, and there are many situa- parte basis;7 (3) the materials that A number of cases illustrate the tions in which the appointment of a the master is to maintain and file effectiveness of masters. special master is legislatively man- with the court reflecting the mas- In United States v. Conservation dated. For example, Title 22 of the ter’s activities; (4) time limits and Chemical Co.,11 for example, the dis- Georgia Code provides for the procedures for reviewing the mas- trict court appointed a master with appointment of special masters to ter’s orders, findings and recom- expertise in land use and environ- oversee and adjudicate condemna- mendations; and (5) the basis, mental law to recommend remedial tion actions.15 The Legislature

December 2009 21 approved the use of special masters seconds with mere keystrokes. ESI. The court gave the special mas- in such cases, “intend[ing] to pro- Instead of letters transmitted to a ter specific instructions to investi- vide a simpler and more effective single recipient, correspondence is gate allegations of the defendant’s method of condemnation[.]”16 The instantaneously transmitted world- non-compliance with ESI preserva- Court of Appeals of Georgia wide to unlimited addressees by tion requirements. The special mas- described the statute as represent- the push of a button. ter researched the allegations and ing an “attempt[] at the outset to As technology develops at a relevant legal theories in depth and achieve a more perfect conciliation breakneck pace, the courts can prepared a comprehensive report between the parties by providing scarcely keep abreast of each new to the court.23 The court used its for the use of experienced, compe- development while struggling to referral order to target the special tent attorneys as special mas- manage their burgeoning dockets. master’s attention to the specific ters.”17 Similarly, O.C.G.A. § 23-3- Judge Shira Scheindlin of the U.S. areas that concerned the court and 43 provides for the appointment of District Court for the Southern to ensure that each was handled a special master in actions for District of New York explained, appropriately, in accordance with removing a cloud upon title.18 “Generalist judges are not and can- the requirements of the Federal Until the passage of U.S.C.R. 46, not be experts on electronic hard- Rules of Civil Procedure. however, trial courts were flying ware and software that enable peo- Research by Judge Scheindlin blind when it came to appointing ple to create, store, retrieve, and and Jonathan Redgrave found that masters to assist them in dealing search ESI.”20 Experienced special special masters generally play four with large, resource-consuming masters Mark Fellows and Richard roles in e-discovery: (1) facilitating matters. The new rule confirms the Haydock have concluded that the electronic discovery process; existence of the courts’ powers to “[w]ith the emergence of ever more (2) monitoring discovery compli- make such appointments and pro- complex civil litigation and ever ance related to ESI; (3) adjudicating vides the courts with a clearly more congested dockets, the need legal disputes related to ESI; and defined process and framework for for discovery masters has simply (4) adjudicating technical disputes using special masters. become accepted[.]”21 and assisting with compliance on To be sure, disputes over matters technical matters.24 Some masters The Use of Special such as the programming routines overseeing e-discovery may be Masters in E-Discovery of computer software, the owner- selected for their expertise in rele- ship of a unique internet address, vant case law and the development One area where the use of special the mapping of a network that of e-discovery trends, while others masters is particularly appropriate exists on a global scale or the spoli- are selected because of technical is in the exploding area of electron- ation of electronic data present expertise to help companies face ic discovery, which has become a unfamiliar terrain and difficult daunting record retention tasks.25 standard feature of complex com- questions even to the wisest jurist. Regardless of specialty, these mas- mercial litigation. Now that the Technological questions increas- ters work to fill in the gaps where courts have just rounded the corner ingly plague discovery, where doc- traditional court functions fall short. into the computer age, already the uments are often paperless and With a limited amount of time to ubiquity of electronic data is communication is entirely digital. handle a deluge of cases, Georgia breathtaking. Today, over 99 per- Although the Georgia Civil courts can scarcely afford the time cent of all information is created Practice Act, unlike the Federal that e-discovery disputes are sure and stored electronically. Nearly 10 Rules of Civil Procedure, has not to demand. Instead of effectuating billion e-mails are sent every year, yet been amended to address the fair dispositions of cases on the but fewer than one-third of all e- special challenges of e-discovery, merits, courts will struggle to deal mails are ever printed. Electronic the absence of rules does not trans- with bickering over access to soft- documents come in a wide variety late into an absence of issues; ware algorithms. Instead of resolv- of file formats. Hard drives in indeed, in Georgia there may be ing pressing motions and moving stand-alone personal computers more issues, and those issues may toward the merits of disputes, account for less than 55 percent of be more complicated and more courts will entertain rounds of the total data stored each year.19 In confounding, because of the objections regarding the mere right short, the volume of Electronically absence of legislative guidance. to discover ESI. With the new Stored Information (ESI) is massive Federal courts use special mas- U.S.C.R. 46, it need not be so. beyond imagination, and it is often ters to handle e-discovery issues The Georgia special master rule difficult to locate and access and with some regularity. In Hohider v. specifically provides that the court expensive to produce. The nature of United Parcel Service, Inc.,22 for may appoint a master “to provide ESI necessitates a new approach to example, the court appointed a spe- guidance, advice and information discovery. Rather than being shred- cial master to deal with allegations to the court on complex or special- ded, documents are destroyed in that the defendant had destroyed ized subjects, including, but not

22 Georgia Bar Journal limited to technology issues related to thought that, on the whole, the bear costs in ESI discovery are the discovery process[.]”26 Where the benefits of the appointments out- particularly well-suited for a Georgia Civil Practice Act lags weighed any drawbacks.”27 One special master.31 behind the Federal Rules of Civil judge even lamented that he Procedure, the Uniform Superior “wished he had appointed a dis- Objections and Court Rules do not, and the inclu- covery master earlier.”28 Responses sion of this provision of U.S.C.R. 46 This pattern of successes will provides an invaluable resource to undoubtedly continue in the e-dis- Those critical of the use of a spe- Georgia courts going forward. covery realm, where clients, attor- cial master typically raise the issue Special masters have the ability to neys and judges can expect special of cost first. There is no doubt that give e-discovery disputes the time, masters to approach ESI disputes the use of a special master intro- attention and expertise that they with care and expertise, giving each duces a layer of cost to any litigation require, particularly in the absence appropriate focus. Anything less in which a special master is appoint- of a statutory regime. Special mas- risks upsetting the expectation that ed. An examination of cost without ters, as they do in numerous other the process will proceed fairly and the consideration of value, howev- phases of litigation, can focus on without purposeful disruption. er, offers a distorted picture. The creating fair and customized solu- Various critical analyses support Federal Judicial Center’s study tions to e-discovery issues that take the notion that special masters found that, while some respondents into account the challenges of tech- remain an underused resource in believed that the appointment of nological innovation as well as the ESI discovery. Lynn Jokela and special masters in their cases raised unique needs of the parties in the David F. Herr argue for the use of the cost of the litigation, many of the case. Special masters have the abili- special masters in resolving techni- respondents believed that the ty to dedicate considerable time to cal disputes, stating, “A special appointment of a special master problem-solving and e-discovery master who possesses the right shortened the litigation by resolving dispute resolution, taking into qualifications is in a better position issues more expeditiously and account the development of state to resolve the dispute as compared through agreements, assisting in the and federal case law, without the to a judge with little or no technical settlement of cases and reducing the burdens of an unwieldy docket of expertise.”29 Another author has likelihood of appeal.32 cases clamoring for attention. written that such special masters Another objection to appointment Empirical data show that both can “provide substantial assistance of special masters is that appeals of judges and attorneys are generally to the court where electronic data the master’s decisions to the trial pleased with the results of special discovery raises difficult questions court will slow down the process. master proceedings. A study con- related to the quantity or format of Research has not borne out this ducted by the Federal Judicial information[.]”30 This is especially objection either. The Federal Judicial Center concluded that “[a]ll of the important as the costs of discovery Center study referenced above judges appointing . . . masters or continue to rise and parties dis- found that all surveyed judges and experts, almost all of the special pute responsibility for various almost all surveyed attorneys masters or experts they appointed, costs of maintaining and produc- involved in litigation in which mas- and almost all of the attorneys ing ESI. Disputes as to who should ters had been appointed agreed that EXCELLENT QUALITY not EXCESSIVE COST

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December 2009 23 the masters “effectively met the pur- clients include national franchise ry judgment or dismissal and to make recommendations with poses and goals of the appoint- companies which he represents respect thereto.” Id. at 105. ment,” and most surveyed judges both regionally and nationally. Ichter earned a B.S. from West 12. See 106 F.R.D. at 224. “described the level of effectiveness 13. 570 F.3d 130 (3d Cir. 2009). 33 Georgia College in 1981 and his as ‘extremely’ or ‘very’ effective.” 14. See id. at 134. J.D., magna cum laude, from the In short, the experience of those 15. See O.C.G.A. § 22-2-103 (Supp. 2009). who have used special masters, in University of Georgia in 1984. 16. Id. § 22-2-101 (1982). the types of cases for which U.S.C.R. Endnotes 17. Wiggins v. City of Macon, 120 Ga. 46 was written, has been that special App. 197, 199, 169 S.E.2d 667, 669 1. National Center for State Courts, masters expedite the litigation (1969). Budget Resource Center, 18. Other statutes that permit or man- process, assist the parties in elimi- http://www.ncsconline.org/wc/ nating and narrowing issues, date the appointment of special budget/activities/georgia.asp (last masters include O.C.G.A. § 28-5- reduce the likelihood of trial and visited Oct. 6, 2009). 100(a) (2007) (permits appointment appeal, and, often, reduce the cost 2. See GA. UNIF. SUPER. CT. R. 46. of a special master by the Claims of litigation and the delay that 3. Lynn Jokela & David F. Herr, Special Advisory Board to make recom- appear otherwise to be inherent in Masters in State Court Complex mendations as to compensation the system. Litigation: An Available and Underused claims), id. § 36-67A-5 (2006) (pro- Case Management Tool, 31 WM. viding for appointment of special Conclusion MITCHELL L. REV. 1299, 1300 (2005). masters in certain rezoning cases) 4. GA. UNIF. SUPER. CT. R. 46(a)(1)(E). The increased use of special mas- and id. § 45-19-37 (2002) (appoint- 5. Id. R. 46(a)(1)(D). ters in many jurisdictions points to ment by governor of a special mas- 6. Id. R. 46(a)(1)(G). ter in disputes involving allega- their utility to the judicial process, 7. The issue of ex parte communication and the introduction of U.S.C.R. 46 tions of unlawful practices). involves not only communication 19. Virginia Llewellyn, Applied highlights the recognition of an between the parties and the special Discovery, Developing an Effective emerging need for the more regu- master but also between the special Electronic Discovery Response Plan lar use of special masters in the master and the court. The referral (Mar. 18, 2002), http://www. courts of Georgia. In a world where order should address when ex parte nchelp.org/elibrary/Presentations courts are increasingly strained by communication is permissible. /2002/2002LegalMidYearMeeting their workload and litigation 8. GA. UNIF. SUPER. CT. R. 46(b)(2). /llewellyn-bw.ppt#256,1, simultaneously becomes increas- 9. See THOMAS E. WILLGING ET AL., ELECTRONIC DISCOVERY. FED. JUD. CTR., SPECIAL MASTERS’ ingly complex, special masters pro- 20. Shira A. Scheindlin & Jonathan M. INCIDENCE AND ACTIVITY 1 (2000), Redgrave, Special Masters and E- vide an outlet. Nowhere is this http://www.fjc.gov/public/ more true than in discovery. Discovery: The Intersection of Two pdf.nsf/lookup/SpecMast.pdf/ Recent Revisions to The Federal Rules The Georgia courts stand at a cross- $file/SpecMast.pdf. of Civil Procedure, 30 CARDOZO L. roads. The courts have, through the 10. Mark A. Fellows & Roger S. REV. 347, 387-88 (2008) (emphasis introduction of U.S.C.R. 46, recog- Haydock, Federal Court Special added). nized and embraced the usefulness of Masters: A Vital Resource in the Era 21. Fellows & Haydock, supra note 10, special masters, even specifically of Complex Litigation, 31 WM. at 1277. highlighting their use in technical MITCHELL L. REV. 1270, 1270 (2005) 22. 257 F.R.D. 80 (W.D. Pa. 2009). electronic discovery disputes. At the (emphasis added). 23. Id. at 81. same time, Georgia lacks a compre- 11. 106 F.R.D. 210 (W.D. Mo.), aff’d in 24. Scheindlin & Redgrave, supra note part, rev’d in part sub nom. In re hensive set of rules to govern e-dis- 20, at 374. Armco, Inc., 770 F.2d 103 (8th Cir. 25. See id. covery, breeding uncertainty among 1985). Following the district court’s lawyers and judges. The courts, 26. GA. UNIF. SUPER. CT. R. 46(a)(1)(C) decision, certain parties in this case (emphasis added). drowning in flooded dockets, sought a writ of mandamus from 27. See WILLGING ET AL., supra note 9, at stripped of resources with which to the court of appeals to compel the 61. stay afloat, faced with future waves of district court to revoke the special 28. Id. at 59. new technologies and the complexi- master’s authority. See 770 F.2d 29. Jokela & Herr, supra note 3, at 1314. ties that attend them, can stay afloat 103. Although the court of appeals 30. Richard H. Agins, An Argument for with the use of special masters—life found that the district court should Expanding the Application of Rule jackets in the perfect storm. not have vested the special master 53(b) to Facilitate Reference of the with power to conduct the trial of Special Master in Electronic Data the action, it endorsed the special Cary Ichter is a Discovery, 23 PACE L. REV. 689, 694 master’s “broad authority to super- founding partner of (2003). vise and conduct pretrial matters, 32. Id. at 723. Ichter Thompson LLP. including discovery activity, the 32. See WILLGING ET AL., supra note 9, at A trial lawyer who pri- production and arrangement of marily handles com- 58. exhibits and stipulations of fact, the 33. Id. mercial disputes, his power to hear motions for summa-

24 Georgia Bar Journal December 2009 25 26 Georgia Bar Journal Sign up for the Women & Minorities in the Unlockyour Profession Committee’s Speaker Clearinghouse Potential About the Clearinghouse The Women and Minorities in the Profession Committee is committed to promoting equal participation of minorities and women in the legal profession. The Speaker Clearinghouse is designed specifically for, and contains detailed information about, minority and women lawyers who would like to be considered as faculty members in continuing legal education programs and provided with other speaking opportunities. For more information and to sign up, visit www.gabar.org. To search the Speaker Clearinghouse, which provides contact information and information on the legal experience of minority and women lawyers participating in the program, visit www.gabar.org.

December 2009 27 GBJ Feature

State Bar Seeks Continued Legislative Success in 2010

by Mark Middleton

s a busy 2009 comes to an end, the State

Bar’s legislative efforts have begun for the A 2010 Georgia General Assembly. The year began with a productive 2009 legislative session that brought passage of bills relating to LLC code revisions, bar exam fees, uniform electronic transfer, as well as state funding of several key budget items.

After the 2009 regular session, the State Bar’s legislative efforts continued as Bar members and the professional staff supported Section activities and advanced carry-over legislation. “We are working hard so we can enjoy another productive year at the General Assembly,” affirmed State Bar lobbyist Rusty Sewell. The State Bar is also actively engaged in the debate over the state budget. Last year, the judicial budget was cut by 13.3 percent, and continuing deteriorating revenues have caused the governor to call for even further cuts. State Bar leadership is actively engaged with the legislative advocacy team to educate policymakers on the critical need to adequately support the third branch of government. “We need lawyers to make the Photo by Johanna Price case to their fellow citizens, business leaders and their ing initiatives developed by the State Bar Sections since elected officials that the judicial branch needs to be the 2009 session. funded in order for the basic functions of public safety and dispute resolution to function,” said State Bar Carry-Over Bills President Bryan Cavan. The following State Bar bills will be taken up again in the 2010 session. 2010 State Bar Legislative Agenda Trust Code Revision (SB 208): SB 208 is a major The 2010 State Bar agenda consists of bills filed last effort to modernize the trust code. The bill, sponsored year that have not passed as well as new bills and fund- by Sen. Bill Hamrick (R-Carrollton), passed the Senate

28 Georgia Bar Journal last year and is currently in the The following proposals were House Judiciary Committee. That approved by the BOG at its SOUTH committee has conducted two September meeting: major reviews of the bill at sessions GEORGIA ADR this fall. Fiduciary Section leaders ■ Support for Legal Services Nick Djuric, Bill Linkous and many Corporation: The State Bar SERVICE, LLC others, along with reporter Mary endorsed a federal resolution Radford, have given sacrificially of supporting the Legal Services their time in this effort. Corporation. MEDIATION and ■ Evidence Code Revision (HB Funding for Victims of ARBITRATION of personal 24): HB 24 is the result of a major Domestic Violence: The effort by the State Bar’s Evidence Women and Minorities in the injury, wrongful death, Code Study Committee that pro- Profession Committee presented commercial, real estate and posed a move toward the federal their funding request of $2.5 mil- other complex litigation rules of evidence. In the summer of lion for the 2011 fiscal year for cases. Visit our website for 2008, a joint legislative committee victims of domestic violence. fee schedules and heard testimony and produced a biographies of our panel, draft bill that became HB 24. That Other issues undoubtedly will comprised of experienced legislative committee determined be added to the State Bar’s legisla- that the bill would not revise tive agenda at the Midyear Middle and South Georgia recently adopted state policy (i.e. Meeting in January. “The trial lawyers and judges. tort reform) and would simply Legislature is impressed with the retain the current law on any par- expertise that our Sections and ticular provision if broad consensus ACL members bring to the delib- CHARLES R. ADAMS, III – Fort Valley could not be reached on the move eration of these important issues,” THOMAS C. ALEXANDER – Macon to the federal language. In 2009, the said ACL Chairman Dwight MANLEY F. BROWN – Macon bill stalled after points of opposi- Davis. “Whether it’s the depth of JERRY A. BUCHANAN – Columbus tion were raised on two major the Fiduciary Section’s knowledge JOHN D. CAREY – Macon issues (bent of mind and treatment on trust code revisions or the pas- WADE H. COLEMAN – Valdosta of co-conspirators in respect to the sion of our budget advocates, the JOHN A. DRAUGHON, SR. – Macon furtherance of a conspiracy). The participation of lawyers in their JAMES L. ELLIOTT – Valdosta State Bar is continuing its attempt Sections is a strength for the State BENJAMIN M. GARLAND – Macon to work through the hurdles by the Bar legislative program.” HON. LORING A. GRAY, JR. – Albany beginning of the session in January. ROBERT R. GUNN, II – Macon Revisions to the Georgia Public Summary JEROME L. KAPLAN – Macon Defender Standards Council (SB Just as 2009 was a busy year for STANLEY M. KARSMAN – Savannah 42): SB 42, which passed the Senate the State Bar, 2010 promises more BERT KING – Gray in 2009, was initially opposed by of the same. As the State Bar con- T. KYLE KING – Jonesboro the State Bar because it removed tinues its efforts in the 2010 General HUBERT C. LOVEIN, JR. – Macon policy-making authority from the Assembly, do not hesitate to con- MICHAEL S. MEYER VON BREMEN – Albany Council. Subsequently, the State tact your legislative representatives S. E. (TREY) MOODY, III – Perry Bar has worked with the author and Section chairs regarding issues PHILIP R. TAYLOR – St. Simons Island and House leaders on a compro- of importance to you. RONALD C. THOMASON – Macon mise that would address the con- CRAIG A. WEBSTER – Tifton cerns of all interested parties. Rusty Sewell, Tom Boller, HON. TOMMY DAY WILCOX, JR. - Macon Hunter Towns, Charlie Tanksley F. BRADFORD WILSON, JR. – Macon New Agenda Items and Mark Middleton are the This year, the various State Bar State Bar’s professional legislative Sections are again preparing leg- representatives. They can be islative proposals on issues of 240 THIRD STREET reached at 404-872-1007, via fax importance to the State Bar. The MACON, GEORGIA 31201 at 404-872-7113 or e-mail at State Bar’s Advisory Committee on (800) 863-9873 or Legislation (ACL) considered two [email protected]. (478) 746-4524 The legislative agenda and infor- proposals at its August meeting FAX (478) 745-2026 mation on the State Bar’s legisla- and forwarded recommendations www.southgeorgiaadr.com for approval to the State Bar Board tive program can be found online of Governors (BOG), which at www.gabar.org/programs/ approved them in September. legislative_program/.

December 2009 29 GBJ Feature

Cultural Competence in the Courtroom: A Judge’s Insight

by Hon. Gail S. Tusan and Sharon Obialo

n the wake of the confirmation of Justice Sonia

Sotomayor as the first Hispanic and only the I third female to serve on the U.S. Supreme Court since its founding in 1789, many questions have arisen as to how important cultural sensitivity is in adjudicating justly and fairly. For example, what can a “wise

Latina” bring to the bench in terms of cultural background, life experience and global understanding? Are

American courts adequately serving their diverse communities? Is justice truly achieved when cultural differences are ignored or misunderstood during legal proceedings? A Global Courtroom

Certain fundamental practices followed in courtrooms throughout America may prove problematic for individuals who did not grow up in this country. For during examination, many cultures find it rude to example, our longstanding practice of requiring a wit- point at others. In East Asia and certain Muslim coun- ness to raise his or her hand while swearing to tell the tries, lack of eye contact toward an authority figure sig- truth prior to testifying is a Judeo-Christian tradition, nifies respect and deference. Thus, a prosecutor’s argu- which inadvertently may be at odds with certain cul- ment that a defendant’s failure to make eye contact tural norms adhered to by foreign-born persons. While with law enforcement signifies guilt might in truth it is not unusual for a lawyer to point a finger or shake indicate something very different if the defendant is a fist during an argument or lock eyes with a witness foreign-born.

30 Georgia Bar Journal The diverse landscape of did not say you were. Did I sug- Framing the American culture necessitates an gest you were a kidnapper?” Discussion on Culture expanded framework of under- Mr. Sayed: “No, no. Because standing within the legal commu- of my language, people always To begin a discussion on cultur- nity. Lawyers, judges and court treat me like a terrorist.” al competence, it is important to personnel alike must ensure that The Court: “Have I treated establish definitional clarity. we have our global antenna up. you like a terrorist?” Culture is “a dynamic value sys- We must be tuned in to Mr. Sayed: “No, you treat me tem of learned elements, with the increasing cultural nuances nothing but the best. I appreciate assumptions, conventions, beliefs underlying today’s court filings. that. I really do.” and rules permitting members of a Consider the following excerpt The Court: “In our court, we group to relate to each other and to from a custody hearing. The do our best to treat everyone the world, to communicate and to Algerian father1 is reacting to the equally and with respect.” develop their creative potential.”2 American mother’s request that Language, food, customs, religion, the court permit her to withhold The foregoing colloquy high- clothing and other outward expres- the children’s passports from him lights the court’s need for sensitivi- sions make up a group’s culture, because she fears that the father ty when interacting with individu- in addition to unspoken values will take the kids back to his native als who perceive themselves to be and beliefs. There are four key country, without her knowledge: members of targeted religious or components involved in cultural ethnic groups. In particular, a judge competence: (1) awareness of one’s Mr. Sayed: “OK, but please, must not inadvertently reward a own cultural worldview; (2) atti- your honor, please. Make sure parent’s goal of culturally alienat- tude towards cultural differences; you consider the passport. I’m ing a child from the other parent. (3) knowledge of different cultural not a kidnapper, ma’am.” Most important, the court itself practices and worldviews; and The Court: “I understand.” must work hard to ensure that (4) cross-cultural communication. Mr. Sayed: “I’m not a kid- there is no appearance of personal Take, for instance, a divorce and napper.” hostility or cultural bias emanating child custody case involving an The Court: “Sir, I heard you. I from the bench. Indian couple who appeared in the

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December 2009 31 sons without financial means will not have influence with the judge.5 Further, if such individuals do decide to seek legal redress, resid- ual feelings of distrust of the court system can lead parties to falter in providing information in advance, frustrating the goals of discovery and due process. The goal should be to cultivate greater confidence in our legal system. Targeting certain underserved groups through community out- reach by judges and court personnel in order to provide direct communication about court rules, procedures and available resources is

Icons by http://dryicons.com the most effective approach to edu- cating and preparing these persons Fulton County Superior Court has witnessed remarkable changes for navigating Georgia’s halls Family Division. The facts exem- in its social demographics over the of justice. There are several organi- plify how a judge’s lack of knowl- last several years, which directly zations in Georgia that serve edge of certain cultural practices illustrate this necessary shift in as links to our legal system, includ- could result in an erroneous con- perspective. According to the 2000 ing Catholic Charities of the clusion. In this case, the husband census, approximately 11.7 percent Archdiocese of Atlanta; Raksha, testified that his wife was hysteri- of the Atlanta population is for- which serves a primarily South cal, claiming that she worshiped eign-born, with the largest com- Asian clientele; and the Latin blocks of blood and practiced munities hailing (in descending American Association. voodoo. Casting commonplace order) from Mexico, India, Hindu practices in a seemingly Vietnam, Korea, China, Jamaica, Language Barriers negative light was the husband’s Colombia, Nigeria, Guatemala and Perhaps some of the greatest tactic to persuade the court that his El Salvador.4 As a result of this handicaps for foreign and minori- wife was emotionally unstable and growing diversity, courthouses ty litigants are the language barri- unfit to parent the child. It would, throughout Georgia may find that ers that they often face, in attempt- however, be a grave error to rely they are not as user-friendly as ing to communicate with court on him as the authority on the sig- they need to be. Specifically, personnel and during a court nificance of the alleged religious there is a lack of community edu- proceeding. We must practice practices of his wife. We must be cation about court processes; lan- patience, offer a discerning ear aware of our own cultural assump- guage barriers exist for many court and keep an open mind while tions and stereotypes, and avoid users; and divergent religious cus- interacting with those who have letting these beliefs influence toms on occasion conflict with limited English proficiency. our judgment about others. court protocol. Additionally, we must educate Bilingual Documents/Signs ourselves about others’ cultural Lack of Community There are also concrete measures differences and practices when Education About Court that a court can implement to facili- they surface in cases in order to tate greater access for non-English maximize our preparedness for Processes speakers. In many states, Georgia in assessing testimony and facilitat- Many foreign-born litigants, par- particular, the international diversi- ing communication. Indeed, this ticularly non-English speakers, ty of our communities necessitates situation shows how cultural com- have limited access to information the expansion of bilingual personnel petence can be pertinent in render- about our court system. In many and resources in the court. Bilingual ing fair decisions in the court. foreign countries, the rule of law directional signs are underutilized With the changing faces of cities, and the court systems are more in many of our courthouses even communities and courtrooms all closely associated with corruption though such tools are critical naviga- over the country, we must recog- than with fairness and justice. tional aids for non-English speakers. nize and strive towards a greater Thus, diverse litigants might Moreover, bilingual written materi- depth of perspective. The Atlanta regard seeking legal relief as futile, als and forms are not helpful if the metropolitan region,3 for example, particularly if they believe that per- persons for whom they are intended

32 Georgia Bar Journal cannot find them. Making one’s way interpreter. If the litigant presents To illustrate, consider the tradition through a courthouse is difficult a valid pauper’s affidavit, the among Muslim women of wearing a enough for the average English- court is required to provide an headscarf or hijab. In December 2008, speaking person. The added hurdle interpreter at no cost as long as a woman in Douglasville was held in of language difficulties makes the there is a bona fide need.7 To be contempt and arrested for refusal to process of entering the courthouse sure, a judicial decision based on remove her headscarf in the court. In burdensome and frightening for an evidentiary hearing involving this instance, the tradition of pro- those who are non-English speakers. a non-English speaker that is con- hibiting head coverings in the court- Thus, it is important to consider ducted without a certified or room directly conflicted with this how much more daunting commu- court-registered interpreter is not woman’s religious obligations and nicating is for someone whose cul- only subject to legal challenges, it beliefs, and the judicial decision to tural background or nationality is also compromises our deeply arrest her created a huge uproar from foreign to the court personnel rooted principle of providing the Muslim community and advo- encountered in the search for justice. equal access and fairness to all cates, such as the Anti-Defamation To address this issue of communi- who appear before us. League, the Council on American- ty education, the Superior Court of Islamic Relations and the American Fulton County has implemented the Conflicts Between Civil Liberties Union. As a result of Court Ambassador Academy. This Religious Practices and the press and attention surrounding program trains citizens (of all ethnic this incident, in July 2009, the Judicial backgrounds and ages) interested in Court Protocol Council of Georgia made a determi- volunteering in the court to act as Although the American legal nation to permit religious attire such ambassadors and liaisons to their system was established based on as the hijab in courtrooms.8 own communities and throughout Judeo-Christian values, customs The personal decision to appear the courthouse. These volunteers and traditions, with the increasing in court wearing other religious speak a variety of different lan- diversity of religions practiced in clothing items such as the burka (an guages and have been successful in this country, we must acknowl- outer cloth worn in the Islamic tra- raising awareness about the county edge that our Constitution protects dition, which covers the entire body judicial system and its processes. an individual’s religious freedom. with the exception of the eyes), Therefore, a rigid adherence to cer- however, fuels debate among Certified Court Interpreters tain historical practices makes a judges and lawyers as to whether a Additionally, the value of hav- collision of cultures inevitable. At witness’s choice of clothing might ing qualified interpreters in the present, various individuals whose violate a party’s right to confronta- courtroom cannot be overstated. traditions espouse divergent prac- tion or whether a trier of fact can For court interpreters, bilingual- tices are increasingly challenged on assess the credibility of a witness if ism is not sufficient. Many an explicit level. she is entirely cloaked. While it litigants attempt to use family and friends as interpreters for financial reasons, but an interpreter must be certified, or, in certain instances, court-registered. Register Now Certified interpreters must under- go training and pass examinations that equip them with the skills to State Bar of Georgia 2010 “transfer all of the meaning heard from the source language into a Midyear Meeting target language [without] . . . editing, summarizing, adding Jan. 7-9 meaning, or omitting,” in just a W Hotel–Midtown few seconds.6 It is a common misconception Registration deadline that the court is only required to provide interpreters in criminal Friday, Dec. 25, 2009 cases, yet according to the Supreme Court of Georgia’s Uniform Rule for Interpreter Visit www.gabar.org for more Programs, all non-English speak- information and to register online. ers must be provided with various resources to secure an appropriate

December 2009 33 Annual Fiction Writing Competition Deadline January 22, 2010 The editorial board of the Georgia Bar Journal is pleased to announce that it will sponsor its Annual Fiction Writing Contest in accordance with the rules set forth below. The purposes of this competition are to enhance interest in the Journal, to encourage excellence in writing by members of the Bar and to provide an innovative vehicle for the illus- tration of the life and work of lawyers. For further information, contact Sarah I. Coole, Director of Communications, State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303; 404-527-8791.

Rules for Annual Fiction Writing Competition The following rules will govern the Annual Fiction 4. Articles should not be more than 7,500 words in Writing Competition sponsored by the Editorial length and should be submitted electronically. Board of the Georgia Bar Journal: 5. Articles will be judged without knowledge of the 1. The competition is open to any member in good author’s identity. The author’s name and State standing of the State Bar of Georgia, except Bar ID number should be placed on a separate current members of the Editorial Board. Authors cover sheet with the name of the story. may collaborate, but only one submission from 6. All submissions must be received at State Bar each member will be considered. headquarters in proper form prior to the close 2. Subject to the following criteria, the article may of business on a date specified by the Board. be on any fictional topic and may be in any form Submissions received after that date and time (humorous, anecdotal, mystery, science fiction, will not be considered. Please direct all sub- etc.). Among the criteria the Board will consider missions to: Fiction Writing Competition, Sarah in judging the articles submitted are: quality of I. Coole, Director of Communications, State writing; creativity; degree of interest to lawyers Bar of Georgia, 104 Marietta St. NW, Suite and relevance to their life and work; extent to 100, Atlanta, GA 30303. The author assumes which the article comports with the established all risks of delivery by mail. Or submit by e-mail reputation of the Journal; and adherence to to [email protected] specified limitations on length and other compe- 7. Depending on the number of submissions, the tition requirements. The Board will not consider Board may elect to solicit outside assistance in any article that, in the sole judgment of the reviewing the articles. The final decision, howev- Board, contains matter that is libelous or that er, will be made by majority vote of the Board. violates accepted community standards of good Contestants will be advised of the results of the taste and decency. competition by letter. Honorable mentions may 3. All articles submitted to the competition be announced. become the property of the State Bar of 8. The winning article, if any, will be published. Georgia and, by submitting the article, the The Board reserves the right to edit articles author warrants that all persons and events and to select no winner and to publish no arti- contained in the article are fictitious, that any cle from among those submitted if the submis- similarity to actual persons or events is purely sions are deemed by the Board not to be of coincidental and that the article has not been notable quality. previously published. remains to be determined how For judges, court officials and Endnotes these legal issues will be resolved, at the legal community at large, fol- 1. Name and country of origin have present each judge has a responsi- lowing these steps will collectively been changed to protect the liti- bility to determine how best to run contribute to making the experi- gant’s privacy. his or her courtroom in a fair and ence of foreign-born and diverse 2. CANADIAN COMMISSION FOR UNESCO, A Working Definition of unbiased manner. In doing so, the litigants in the court equitable. And “Culture,” in CULTURES 78-83 (1977). judge should proceed thoughtfully while becoming aware of and 3. The Atlanta region includes 10 in light of the considerations raised countering the latent biases is no counties: Cherokee, Cobb, in this article. easy task, the evolving nature of Gwinnett, DeKalb, Fulton, our global community demands Douglas, Fayette, Clayton, Henry Serving as a Gatekeeper that our courtrooms become more and Rockdale counties. Statistics to Minimize Cultural primed to cultural cues through available at http://www.atlanta education and communication. regional.com/html/196.aspx. Bias and Achieve My tenure as a judge presiding 4. 2000 Census: Foreign Born by Place Fairness in the Family Division of the of Birth, available at An important part of combating Superior Court of Fulton County http://www.atlantaregional.com/ html/196.aspx. Other large for- communication challenges is identi- has provided me with first-hand eign-born populations include fying cultural biases and stereo- experience in adjudicating cases individuals from the United types, which might be sources of where a battle of culture has been Kingdom, Canada and Germany. perceived hostility. Often, these at the forefront, and my perspec- 5. Interview with Aparna biases and assumptions exist at tive as an American judge has Bhattacharyya, Director of Raksha, unconscious levels, but they still been enriched by exposure to and Inc. (Aug. 26, 2009). affect our everyday verbal and non- education about cultures different 6. Roxana Cardenas, “You Don’t Have verbal communication in the work- from my own. Regardless of the to Hear, Just Interpret!”: How place. Interestingly, 91 percent of cultural background of the parties Ethnocentrism in the California minority attorneys believe that before me, however, my judicial Courts Impedes Equal Access to the racial bias exists, whereas 54 percent responsibility remains absolute— Courts for Spanish Speakers, 38 CT. REV. 24-31 (2001). of non-minority attorneys do not to listen to and understand both 9 7. GA. SUP. CT. R. APP. A, Uniform believe that such a problem exists. sides of a case, apply the law and Rule for Interpreter Programs. Behavioral psychologists will attest make a fair decision in the end. 8. Jim Galloway, Muslim Headscarves to the power of cultural stereotypes to be Allowed in Georgia Courtrooms, on the human mind—stereotypes Hon. Gail S. Tusan has ATLANTA J.-CONST., July 24, 2009. that are fueled and reinforced by served on the Superior 9. Ga. Sup. Ct. Comm’n, Report on long-held beliefs, messages from the Court of Fulton County Racial and Ethnic Bias in the Court media and selective information in since her appointment System (1995), available at our environments. in 1995. Currently she http://www.ncsconline.org/ Awareness and acknowledg- is chair of the Access Projects_Initiatives/REFI/ ment of others’ cultural differences to Justice and Fairness in the GA1REB.htm#Culture. 10. Jack Glaser, The Social Psychology of as well as our own assumptions are Courts Committee, the Council of Intergroup Bias (2007), available at Superior Court Judges and the the critical components in ensuring http://calswec.berkeley.edu/ competence and impartiality while Judicial Section of the Atlanta Bar CalSWEC/2007_FE_SocialPsych interacting with diverse litigants. Association. Tusan also serves as a Prejudice.pdf Jack Glaser, a professor at the faculty member of the National Goldman School of Public Policy, Judicial College. has created several strategies for A-A-A maximizing objectivity.10 Sharon Obialo gradu- ATTORNEY REFERRAL SERVICE ated from Duke Is your phone ringing like it used to? ■ Engage in an intentional University in 2008. We refer over 17,000 callers to our thought process Post-graduation she attorneys monthly. Are you ready to ■ Use specific communication spent four months in start getting referrals? Call us today! strategies Berlin, Germany, 1-800-733-5342 or 1-800-260-1546. Or e-mail us at ■ Be conscious of diversity and studying minority and human [email protected] the differences in people rights issues, as a fellow with the ■ Increase accountability Humanity in Action Foundation. (800) 733-5342 ■ Allow ample time for judgments She currently serves as a judicial 24-hour paging: ■ Confront stereotypes intern in the Fulton County (888) 669-4345 ■ Renew the drive to be fair and Superior Court and will be attend- [email protected] accurate. ing law school in the fall of 2010.

December 2009 35 GBJ Feature

Conversation and a Scorecard: The Impact of the Economy on Diversity in the Profession

by Marian C. Dockery

wo leaders in the profession shared their life

stories with conference attendees at the 17th T Annual State Bar of Georgia Diversity Luncheon on Sept. 30. Chief Justice Carol Hunstein and

Thomas G. Sampson, founder and member of Thomas,

Kennedy, Sampson & Patterson, Atlanta’s oldest minority law firm, answered questions posed by

Valerie Jackson, former first lady of Atlanta and host of

NPR’s “Between the Lines,” much to the delight of the attorneys and luncheon guests.

Justice Hunstein responded to Jackson’s questions about her life journey. She recalled with ease the painful experiences of her childhood: a diagnosis of polio, the death of her mother when she was only 11 and the almost immediate remarriage of her father and the addition of three siblings to the family. The Chief, which is how Jackson addressed her, recalled that she Photos by Don Morgan married very young and had a son. The road did not (Left to right) Chief Justice Carol Hunstein and Thomas G. Sampson get easier for Justice Hunstein, who faced a diagnosis at the State Bar of Georgia Diversity Program’s 2009 Luncheon. of cancer that eventually resulted in a leg amputation. But Justice Hunstein, a young, divorced single mother, ticed law. Although his father’s profession would logi- was not to be deterred. She pursued a law degree cally lead one to believe that Sampson would seek to despite her father’s words of discouragement—”a follow in his footsteps, his motivation to pursue the woman’s place is in the home.” The rest of Justice law was in fact the injustices of the civil rights era. The Hunstein’s story is recent history and her life reads like murder of Emitt Till, the bombing of a Birmingham a movie script. church where three young girls were killed and the Sampson told the audience that he grew up in North many tragedies suffered by minorities during the 1960s Carolina where his father was an attorney and dean of shaped his goals and aspirations. Sampson decided to North Carolina State. Five days a week, his dad pursue a law degree because he thought he could be a worked at the college and on the weekends he prac- catalyst for change. He became an extremely successful

36 Georgia Bar Journal attorney and founding partner of one of the most notable minority law firms in Atlanta. Jackson continued the conversation, commenting on her husband’s, the late Maynard Jackson, unwavering commitment to diversity, his support of the two speakers and how under his leadership minority business partnerships with the city increased from less than one percent to a stunning 28 percent. This conversation was an important teaching moment for many of the attorneys in attendance. Prior to the luncheon, three panels presented on the theme of the conference: “A Scorecard: How the Economy is Impacting Diversity in the Profession.” ! " Bar Association Leaders Panel P $ Q& State and national specialty bar association leaders '! engaged in a roundtable discussion moderated by Avarita Hanson, executive director of the Chief Justice’s ((() *+, ) Commission on Professionalism. The panelists included Rodney Moore, partner, Adorno & Yoss, immediate past - president, the National Bar Association (NBA); Sonjui Kumar, partner, Kumar Pathak, LLC, president of the North American South Asian Bar Association (NASA- BA); Jeremy Burnett, partner, Troutman Sanders LLP, ! "# president, Stonewall Bar Association; Linda Klein, managing partner, Baker, Donelson, Bearman, Caldwell & $ "# % Berkowitz, PC, past president of the State Bar of Georgia; % % & and Erik Rodriguez, associate, Seyfarth Shaw LLP, ' "# ( regional president of the Hispanic National Bar Association (HNBA). The panel agreed that the current I r rvvrs wqtvthry economy has taught attorneys in private practice an r vprhur rtvhyyrry important lesson: to build a book of business to avoid ( losing your job. Bigger books of business equal higher retention rates regardless of an attorney’s race, national origin, gender or sexual orientation. Klein shared how her participation in the Bar helped $%)* her develop a book of business because it made her 6yrh! qsCTHUwqtvt more visible, created future opportunities and served as a great networking tool with other attorneys. She hryrr vrpr rh sCTHU also explained how her involvement and willingness phpuvtrr vrpr rv rq to volunteer as chair for the more unpopular commit- r rhurhryrry tees helped her practice. Klein also recommended that firms educate themselves about diverse attorneys’ 8hpurHpxU vhyPssvpr experiences by reading such publications as Visible vurv) Invisibility, Visibly Successful and Fair Measure, all available on the ABA website. ##$!&'&&( The national bar associations have established dif- '""#%'%$r&&( ferent strategies to oversee how the economy has @hvy)px vhy5thih t impacted the layoffs of minorities. Moore reported that the NBA Diversity Task Force is examining large law firms in Washington, D.C., Seattle and New York. The task force studied the diversity efforts of these firms, comparing the minority population with the majority population of their attorneys. The study showed that some firms are doing a good job by providing scholarships for minority law students, appointing diversity counsel to focus on the firm’s diversity efforts and having good representation of

December 2009 37 Turner hired a small women- owned law firm instead of a larger firm because their rates were more competitive. Lewis said recession, inflation and political unrest are always factors in a global economy and from this perspective there is no “one size fits all” answer to how one responds to an economic downturn and maintain a diverse workforce. Compass Group North America is growing its business but not adding staff, reported Richburg. She added that their attorneys are doing more with less and managing their resources. All the panelists agreed that regardless of the economy, their companies contin- (Left to right) Avarita L. Hanson, Rodney Moore, Linda Klein, Sonjui Kumar, Jeremy Burnette ue to: contract out work to minori- and Erik Rodriguez, members of the Bar Association Leaders panel. ty- and women-owned law firms; diversity in their firms. The NBA ing need to reach out to all bar support pipeline programs and in- Diversity Task Force will host sev- associations on both the local and house affinity groups; and recruit eral roundtable discussions in the national level and by forming diverse legal associates. future. Moore then noted that the these alliances, minority attorneys All the panelists reported that economic downturn has negative- can have a tremendous impact to there are challenges in a slow ly impacted the representation of ensure they remain in the pipeline economy and more work must the African-American population and employed with law firms even remain in-house, a trend that of attorneys nationwide. during down economic times. should continue. They also agreed Kumar shared that within the 27 if something new is tried, such as chapters of NASABA, national Corporate In-House working with small firms instead mentoring circles were instituted to Counsel Roundtable of large ones to perform outside provide support to Southeast Asian work, companies will continue to women who drop out of firms at a Rick Goerss, chief privacy offi- use these models in the post- rate higher than anyone else, a cer, Equifax, moderated the panel recession era. trend seen before the recession. of in-house attorneys that consist- Burnette stated that many gay ed of Paul Weisbecker, manager Law Firm Partners lesbian bisexual and transgender of litigation, AT&T Wireless; Roundtable (GLBT) attorneys are successfully Sonya Richburg, in-house counsel, forming their own firms, some of Compass Group USA; Rick Michael Tyler, partner, Kil- which are hiring and thriving in McMurtry, assistant general coun- patrick Stockton LLP, was the this poor economic climate. He has sel, Turner Broadcasting System, moderator for the law firm panel. not heard that more gay attorneys Inc. (Turner); and John Lewis, sen- He was joined by Lovita Tandy, are necessarily losing their posi- ior managing counsel—litigation, diversity partner, King & Spalding, tions. His observation is that firms the Coca-Cola Company. Each LLP; Kenneth Southall, partner, are laying off attorneys, not panelist emphasized corporations Adorno & Yoss LLP; June Towery, because of their sexual orientation, are changing the way they do partner, Nelson Mullins Riley & but because business for a specialty business because of the current Scarborough, LLP; and Sam Choy, has slowed down. state of the economy. Weisbecker partner, Seyfarth Shaw LLP. Rodriguez commented on the said, “We are doing more in-house Tyler asked how the economic appointment of Sonia Sotomayor, and farming out less hourly work downturn and resulting firm lay- the first Hispanic and third female for law firms.” Flat fees are replac- offs impacted diversity in the pan- justice to the U.S. Supreme Court. ing billable hours. Companies are elists’ law firms. Tandy reported He reported that HNBA’s presi- also seeking more reasonable bill- that no efforts were made to main- dent, Carlos Ortiz, participated in able hours from smaller firms tain a certain percentage of minor- talks with the White House to instead of using the larger firms ity attorneys. Instead, objective push Sotomayor’s appointment. to perform the same work. criteria were applied in determin- Rodriguez emphasized the ongo- McMurtry gave an example where ing who would be laid off at the

38 Georgia Bar Journal 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. firm. Southall reported that his in 2009, it was reported that their a free workshop presenting tips on firm has been diverse since its diversity strategy was no longer starting your own law firm. inception. He added that the working. Towery reiterated the firm did not see a reduction in importance of corporate clients Marian Cover its workforce due to the recession. demanding that law firms step up Dockery is an attorney Towery discussed the plan her and fix the problem. She also with a background in firm implemented in 2007 to advised minority attorneys to employment discrimi- provide training, including a become more visible during the nation and she is also three-day training weekend, business development process. the executive director consultants, a mentoring pro- Choy reported that the economic of the State Bar of Georgia gram and an alliance with downturn did not cause a decline Diversity Program. For more infor- Kumar Pathek, LLC, to promote in his firm’s diversity. mation on the Diversity Program, and improve diversity. The plan After the Diversity CLE, atten- go to www.gabar.org/programs/ yielded positive results. However, dees were invited to participate in georgia_diversity_program.

2009 State Bar of Georgia Diversity CLE Sponsors Executive Sponsor Constangy, Brooks & Smith, LLC

Platinum King & Spalding LLP—Luncheon Sponsor

Gold Alston & Bird LLP Kilpatrick Stockton LLP Troutman Sanders LLP (Left to right) Law Firm Panel members Sam Choy, June Towery, Lovita Tandy, moderator Michael Tyler and Kenneth Southall. Silver Baker, Donelson, Bearman, Caldwell & Berkowitz, PC Equifax Georgia Power Jones Day Miller & Martin PLLC

Bronze Adorno & Yoss LLP Arnall Golden Gregory LLP Nelson Mullins & Scarborough LLP Sutherland Swift Currie Mcghee & Hiers, LLP

In-Kind Alston & Bird, LLP—Official Program Sponsor Cox Communications, Inc.— Official Printing Sponsor Fulton County Daily Report— Members of the Corporate Panel included (left to right) moderator Richard Goerss, John Official Marketing Sponsor Lewis, Paul Weisbecker, Rick McMurty and Sonya Richburg.

40 Georgia Bar Journal 5IF(FPSHJB"DBEFNZPG.FEJBUPST"SCJUSBUPST WWW'EORGIA-EDIATORSORGWWW'EORGIA-EDIATORSORG

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Kudos other lawyers in the same and related specialties. > Ford & Harrison LLP announced that 17 attorneys The following attorneys were recognized by their were named to the 2010 edition of The Best Lawyers peers: William Hale Barrett, corporate law; in America®. Jeffrey W. Bell, D. Gerald Coker, Douglas D. Batchelor Jr., health care law; Mark S. Patricia G. Griffith, David C. Hagaman, C. Lash Burgreen, tax law; James B. Ellington, first Harrison, James C. Hoover, Thomas J. Kassin, amendment law, labor and employment law; Ronald R. Kimzey, Michael L. Lowry, Jeffrey D. George R. Hall, legal malpractice law, personal Mokotoff, John L. Monroe Jr., Norman A. Quandt, injury litigation, professional malpractice law; Chad A. Shultz, Claude T. Sullivan and Frederick William F. Hammond, tax law; R.E. Hanna III, L. Warren (labor and employment); Joycelyn L. real estate law; David E. Hudson, bet-the-compa- Fleming (immigration law); and John F. Allgood ny litigation, commercial litigation, first amend- (alternative dispute resolution). ment law, personal injury litigation; James V. Painter, medical malpractice law; Patrick J. Rice, > bet-the-company litigation, commercial litigation, personal injury litigation; F. Michael Taylor, personal injury litigation; and James S.V. Weston, medical malpractice law.

> Womble Carlyle announced that Sentell Pillow Simms Estrin Nisbet (Ken) Kendrick III was named Kilpatrick Stockton announced that partner Perry to the 2009 Super Lawyers—Corporate Sentell was selected to serve as the chair of the Counsel Edition. Kendrick was recog- Augusta Leadership Council of the American nized in the alternative dispute resolu- Cancer Society. The Leadership Council of Augusta tion category. The list recognizes the is responsible for moving the mission of the nation’s top attorneys in business-related practices, American Cancer Society forward in the areas of such as alternative dispute resolution, antitrust liti- mission delivery and income development. It is gation, appellate, civil litigation defense, white col- composed of prominent members of the Augusta lar criminal defense, professional liability defense business and medical community. and personal injury defense. Associate Mindy Pillow was elected to the 2009- Womble Carlyle was named the 2009 winner of 10 board of directors of the Junior League of the Law Firm Diversity Award by DRI (formerly DeKalb County. Pillow serves as the vice president the Defense Research Institute), the Voice of the community. Her law practice is primarily concen- Defense Bar. The DRI Awards are national in scope trated on commercial litigation and the representa- and only one law firm in the country is honored tion of victims in catastrophic injury cases. annually for its commitment to diversity. The firm Associate Sidney Simms was appointed to serve received the award in October at DRI’s Annual on the advisory board of the First Book-Metro Meeting in Chicago. Atlanta, an organization that provides new books to children in need. He focuses his practice on real > Cantor Colburn partner Elizabeth Ann “Betty” estate finance and capital markets. Morgan was appointed to the Board of Directors Associate Lauren Estrin was inducted into the of the American Intellectual Property Law Class of 2009 of Outstanding Atlanta at its 41st Association (AIPLA) through 2011. AIPLA is a pre- Awards Ceremony in November. Each year, mier intellectual property national bar association, Outstanding Atlanta, formed in 1968, recognizes constituted primarily of lawyers in private practice, young professionals between the ages of 21 and 36 corporate practice, government service and the aca- for distinguishing themselves in their careers and demic community involved in the practice of for making a difference for the betterment of the patent, trademark, copyright, trade secret and community of Atlanta. unfair competition law, as well as other fields of law affecting intellectual property. > Twelve Hull, Towill, Norman, Barrett & Salley Morgan was also appointed to the Courts & lawyers were recognized in Best Lawyers in Tribunals Subcommittee of The International America®. Best Lawyers is based on an annual peer- Trademark Association Enforcement Committee review survey in which leading attorneys cast for the 2010-11 committee term. more than 2.8 million votes on the legal abilities of

42 Georgia Bar Journal Bench & Bar

> Fisher & Phillips LLP announced that > DeKalb County District Attorney Gwendolyn Tex McIver, a partner in the Atlanta Keyes Fleming was selected as a member of the office, is listed in Who’s Who Legal Atlanta Business Chronicle’s Who’s Who in 2009, which recognizes attorneys inter- Atlanta’s legal and accounting professions. She is nationally for their practices in labor among a select group of 100 metro Atlanta profes- and employment law. Who’s Who Legal sionals selected for this honor. identifies the foremost legal practitioners in 31 areas of business law. The publication features > King & Spalding announced that senior litigation more than 10,000 of the world’s leading private partner Dwight J. Davis was appointed by Gov. practice lawyers in more than 100 countries. Sonny Perdue as representative to the state’s Board of Natural Resources. Davis is one of 18 citizens > Homer Deakins, a founding sharehold- appointed by the governor and confirmed by the er of Ogletree, Deakins, Nash, Smoak Georgia Senate. The board is responsible for setting & Stewart, P.C., was honored with the rules and regulations ranging from air and water “Entrepreneur of the Year” award quality to hunting seasons and provides input into presented by the Greenville Tech issues such as the agency’s budget recommenda- Foundation’s Entrepreneur Forum, in tions and legislative initiatives. The board is expect- Greenville, S.C., at its annual gala in September. ed to play an important role in resolution of Through its “Entrepreneur of the Year” award, the Georgia’s current water crisis and in addressing Entrepreneur Forum annually recognizes individu- sustainability issues associated with the states als who have contributed significantly to the pros- growing need for energy. perity of upstate South Carolina through their entrepreneurial activities, business leadership and > Smith Moore Leatherwood LLP announced that involvement in the community. Elizabeth J. Bondurant and H. Sanders Carter Jr. were recognized for insurance law in the 2010 Best > Augusta trial lawyer Joseph R. Neal Jr. was inducted Lawyers in America® listing. into the Melvin M. Belli Society in July at the Legion of Honor in San Francisco, Calif. The Belli Society is > United Way of Metropolitan Atlanta an international society of trial lawyers dedicated to announced that Horace Sibley, retired excellence in advocacy and furthering the study of partner, King & Spalding, stepped law through charitable and educational means. down from his position as chair of the United Way Regional Commission on > Attorney, activist and community leader Judith A. Homelessness (the Commission) after O’Brien received the Kathleen Carlin Justice seven years of service. Under Sibley’s leadership, Seekers Award at the 2009 Men Stopping Violence the community has made great strides in its goal Annual Awards Dinner in October. The awards to end homelessness by 2013. Together, the dinner recognizes individuals who have dedicated Commission and its community partners created time and energy to fostering safety and justice for more than 2,000 supportive housing units for the women. O’Brien is a partner at Sutherland. chronically homeless and another 600 specifically for homeless women and children. More than 1,500 > Chambers and Partners, a leading legal directory homeless people have found employment, and and research organization, ranked the Atlanta office more than 10,000 people have been reunited with of Hunton & Williams LLP among the top firms in loved ones and other support networks. Georgia for banking and finance; environment; labor & employment; and general commercial liti- > Owen, Gleaton, Egan, Jones & Sweeney, LLP, gation. The firm received national rankings in cli- announced that Amy Kolczak was inducted into mate change, environment and privacy & data the Class of 2009 of Outstanding Atlanta at its 41st security. Attorneys who received individual rank- Awards Ceremony in November. ings are: Kurt Powell and Chris Arbery, labor & employment law; John Schneider and Greta > Jones Day announced that the following attorneys Griffith, banking and finance law; Robert Hogfoss were ranked in the 2009 Chambers USA: Cindy A. and Catherine Little, environmental law; and Brazell, Aldo L. LaFiandra and Ralph F. (Chip) Lawrence Bracken and Matthew Calvert, general MacDonald, banking & finance; Richard H. Deane commercial litigation. Jr., G. Lee Garrett Jr., Stephanie E. Parker and E.

December 2009 43 Bench & Bar

Kendrick Smith, litigation; Jeffrey Ellman, bank- than 30 years, is the first female to hold the position ruptcy/restructuring; H. Stephen Harris Jr. and L. since the firm was founded in 1976. The firm is locat- Trammell Newton Jr., antitrust; G. Graham ed at 1600 Atlanta Financial Center, 3343 Peachtree Holden, Christine M. Morgan and Charles A. Road NE, Atlanta, GA 30326; 404-233-7000; Fax 404- Perry, environment; A. Michael Lee and Scott A. 365-9532; www.mmmlaw.com. Specht, real estate; Timothy Mann Jr., William B. Rowland, Lizanne Thomas and John E. Zamer > Terrence Lee Croft, a trial lawyer corporate/mergers & acquisitions; and Deborah A. with more than 40 years of courtroom Sudbury, labor & employment. experience and more than 25 years of experience as a neutral, announced On the Move that he has joined JAMS, The Resolution Experts, the nation’s In Atlanta largest private provider of mediation and arbitra- > Kilpatrick Stockton announced that Colin tion services. Throughout his career Croft has Bernardino, Mike Bertelson and Chad Theriot successfully resolved more than 2,500 disputes. were elected into the partnership as of Jan. 1, 2010. He will be based in the JAMS Atlanta Resolution Bernardino focuses his practice on representing Center which is located at 1100 Peachtree St. NE, both debtors and creditors in bankruptcy; Theriot Suite 640, Atlanta, GA 30309; 404-588-0900; Fax focuses his practice almost exclusively on construc- 404-588-0905; www.jamsadr.com. tion & government contracting law; and Bertelson focuses his practice on patent law. The firm’s office > Nall & Miller, LLP, is located at 1100 Peachtree St., Suite 2800, Atlanta, announced that Clinton F. GA 30309; 404-815-6500; Fax 404-815-6555; Fletcher joined the firm as www.kilpatrickstockton.com. a senior associate and Matthew B. Stoddard joined > Fellows LaBriola LLP announced that the firm as an associate. Fletcher Stoddard Kevin P. Weimer became a partner of Fletcher’s practice concen- the firm. Weimer represents business- trates in the areas of aviation litigation, business law, es and corporations of all sizes and motor carrier litigation, premises liability, products individuals in a wide spectrum of liability and warranty rights and lemon law. legal matters, including business and Stoddard’s practice concentrates in the areas of busi- commercial litigation, employment litigation and ness law, health care law, motor carrier litigation, counseling, insurance coverage, serious personal product liability, and professional liability. The firm injury and wrongful death matters and False is located at 235 Peachtree St. NE, Suite 1500, Claims Act litigation. The firm is located at Atlanta, GA 30303; 404-522-2200; Fax 404-522-2208; Suite 2300, South Tower, 225 Peachtree St. NE, www.nallmiller.com. Atlanta, GA 30303; 404-586-9200; Fax 404-586- 9201; www.fellab.com. > Hunton & Willliams LLP announced the addition of > Locke Lord Bissell & Liddell, LLP, Mark I. Duedall as counsel announced that Randall W. Johnson in the bankruptcy, financial joined the firm as of counsel in its restructuring and creditors’ Atlanta office. Johnson has more than 22 rights practice group. Duedall Collins years of experience in corporate transac- Duedall was previously tions and has significant experience in with international investment bank Houlihan the areas of securities, trade credit and finance, ven- Lokey Howard & Zukin, where he headed its south- ture capital transactions, and mergers and acquisi- eastern restructuring and distressed mergers and tions. The office is located at 1170 Peachtree St. NE, acquisitions practice. Suite 1900, Atlanta, GA 30309; 404-870-4600; Fax Aisha Blanchard Collins joined the firm as the 404-872-5547; www.lockelord.com. 2009-11 Pro Bono Fellow. This unique position is entirely committed to pro bono work for a two-year > Morris, Manning & Martin, LLP, announced the term in the firm’s Atlanta office. Collins will be election of its new managing partner, Louise M. working with the firm’s Southside Legal Center on Wells. Wells, who has been with the firm for more matters regarding adoptions, business law, uncon-

44 Georgia Bar Journal Bench & Bar

tested guardianships, private landlord/tenant dis- Serving the Bench & Bar: putes and other juvenile and public interest law matters. The office is located at Bank of America Georgia’s Court Interpreters Plaza, Suite 4100, 600 Peachtree St. NE, by Linda P. Smith Atlanta, GA 30308; 404-888-4000; Fax 404-888-4190; Professionally-trained foreign language interpreters now www.hunton.com. assist non-English speakers in courtrooms around the state In Macon thanks to the Supreme Court of Georgia Commission on > Daisy Hurst Floyd, dean of Mercer University’s Interpreters (the Commission), the Administrative Office Walter F. George School of Law since 2004, of the Courts (AOC) and the Georgia Bar Foundation. The announced that she will step down as dean at the Commission conducts quarterly workshops for prospective end of this academic year to become University interpreters preparing them for certification exams in des- Professor of Law and Ethical Formation. In her new ignated foreign languages as well as court procedures, legal role, Floyd will lead the University in collaborations terminology, etc. Scholarships funded by the Georgia Bar between undergraduate and professional education to prepare students for lives of purpose and respon- Foundation have made these classes available to a number sibility. She will build upon her work with the of prospective court interpreters who otherwise lack the Carnegie Foundation for the Advancement of resources to enroll. The fee for the workshop is $250; a Teaching, which has focused on the formation of separate charge for the certification exam is also $250. ethical identity in law students and the relationship In 2003, the Supreme Court formally created the between liberal arts and professional education. The Commission on Interpreters to safeguard the rights of non- Walter F. George School of Law is located at 1021 English speaking court users. Since that time the AOC has Georgia Ave., Macon, GA 31207; 478-301-2605; www.law.mercer.edu. provided staff support to the Commission and maintained an online registry of licensed foreign language interpreters > James, Bates, Pope & (www.georgiacourts.gov.) Chief Justice Carol Hunstein Spivey, LLP, announced serves as commission chair. that George S. Greer was Additional information on the Commission’s activities named partner. Greer prac- and services can be found on the website or by contacting tices in the areas of commercial real estate and develop- Stephanie Chambliss Hines, 404-463-1906, or Linda Smith, Greer Quinlan ment, corporate law, public 404-656-6478, at the AOC. and affordable housing and estate planning. Also, Patricia M. Quinlan and Kort D. L. Peterson joined the firm as associates. Quinlan focuses her Correction practice on estate planning and business. Peterson practices in the area of wealth management. The On page 79 of the August issue of the Georgia Bar firm is located at 231 Riverside Drive, Suite 100, Journal, Judge Philip C. Smith was incorrectly listed Macon, GA 31201; 478-742-4280; Fax 478-742-8720; as Stephen K. Leibel in a photo with LFG Executive www.jbpslaw.com. Director Lauren Larmer Barrett. We do apologize for this error. In Savannah > Hunter Maclean announced that Lorianne Denslow was named partner in the firm’s Savannah office. Her practice specializes in corporate tax and If you have information you want to employee benefits. The firm’s Savannah office is located 200 E. Saint Julian St., share in the Bench & Bar Section of the Savannah, GA 31412; 912-236-0261; Fax 912-236- 4936; www.huntermaclean.com. Georgia Bar Journal, contact Stephanie > Tiffany E. Caron joined McCallar Law Firm as Wilson at [email protected]. an associate. Caron, formerly with the U.S. Trustee’s Office in Chattanooga, Tenn., repre-

December 2009 45 46 Georgia Bar Journal Bench & Bar

sents individuals and corporations in the areas of commercial litigation, bankruptcy and insol- vency, focusing on corporate reorganization. The firm is located at 115 W. Oglethorpe Ave., NEW Servicefor Bar Savannah, GA 31401; 912-234-1215; Fax 912- Members! 236-7549; www.mccallarlawfirm.com. > Ellis, Painter, Ratterree & Adams LLP announced that Robert S. Glenn Jr. joined the firm as a partner and Benjamin D. Ellis joined Need Help Finding the firm as of counsel. Glenn Ellis Glenn concentrates his Health Insurance? practice on admiralty and maritime law, construction litigation and alternative dispute resolution. Contact BPC Financial, Ellis practices in the areas of corporate and securities law, trusts and estates, and banking and the State Bar of Georgia’s finance. The firm is located at 2 E. Bryan St., 10th recommended broker for Floor, Savannah, GA 31401; 912-233-9700; Fax 912- 233-2281; www.epra-law.com. members’ health, dental In Thomasville and vision plans. > Whitehurst, Blackburn and Warren announced the arrival of their newest associates Peter A. “Trey” DeSantis III and Malia Phillips-Lee. DeSantis’ prac- DeSantis Phillips-Lee tice concentrates in the areas of real estate transactions and general litigation. Phillips-Lee speaks intermediate and conversational Spanish, which aids the firm in communicating with Spanish-speaking clients. The firm is located at 809 S. Broad St., Thomasville, GA 31792; 229-226-2161; Fax 229-228-9014; www.wbwattorneys.com. In New Smyrna Beach, Fla. > Sandra M. Sovinski, former managing partner of Atlanta-based Kaplan Ward & Patel’s Florida office, announced the opening of Innovative IP, LLC, a law firm focusing on domestic and international patent and trademark prosecution and other related intellectual property mat- FOR MORE INFORMATION: ters. The firm can be reached at P.O. Box 217, New Smyrna Beach, FL 32170; 800-729-5541; Fax 800-932- 800-282-8626 1751; www.innovative-ip.net. www.memberbenefits.com/SBOG

Products and services are administered, 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 products.

December 2009 47 Office of the General Counsel

Warning. . . . Warning. . . .

by Paula Frederick

“ hat’s odd,” you say, hanging up the telephone.

“Joe’s outgoing voice mail says his mailbox is T full and can’t accept more messages.” “I noticed that too! I figured he was on vacation,” your assistant responds. “He ignored my e-mails all last week, but I finally caught up with him yesterday. Apparently he’s been in the office but he’s swamped.” Worried, you head down the hall to check on your newest partner. You find his assistant Jane at her usual cubicle outside Joe’s office. “Don’t interrupt Joe,” she warns. “He’s working on a deadline, and we can’t get another extension in the Luger case. If he doesn’t get that brief to me by noon, there’s no way I’m going to be able to get it out today!” You ignore her and, stepping around a stack of bankers’ boxes, enter Joe’s office. He’s on the phone. “I know it’s my second extension,” he says, “but I’ve got an overdue brief in a really big case and I need the rest of the day to get that done. I’m in court tomorrow and Friday, but first thing Monday I promise I’ll finish the responses to discovery. I’ll e-mail them Monday night.” Joe puts his hand over the telephone receiver and “Help!” Joe cries, dropping his head into his hands. waves you into the office. “I’ll just be a minute,” he Believe it or not, too much business can cause as whispers, motioning you towards a chair. many problems for a lawyer as not enough. The Office As you look for a chair that isn’t piled high with of the General Counsel regularly sees grievances paper Jane rushes into the office, waving wildly to get against lawyers who are simply overwhelmed by the Joe’s attention. “Did you ever find the McNike file?” she demands of their professional and personal lives. asks. “He’s on the phone again.” Watch for the warning signs that indicate you are over- “Tell him I’m out of the office,” Joe instructs. He worked and over-stressed, and take steps to get help. finally hangs up the phone. “What a week!” If you have an e-mail inbox over its size limit, if your “What’s going on?” you demand. “If I didn’t know bet- voice mail is full of messages that you are afraid to ter I’d think you were the sorriest lawyer in town! You’re delete or if there are piles of files occupying every sur- too busy to delete old voice mail, it looks like a bomb face in your office, it’s time to stop, take a deep breath, went off in your office and you’re driving your assistant get organized and ask for help! Contact the State Bar’s crazy! Get a grip, before something bad happens!” Law Practice Management Program at 404-527-8773 or “Business is booming! I thought I was lucky to be so [email protected] for practice management tips. busy in this economy. Somehow it’s all gotten out of hand,” Joe admits. Paula Frederick is the general counsel for “There’s a tipping point, and you’re on the other the State Bar of Georgia and can be side of it! You’re already losing business! I gave reached at [email protected]. BigClient your name—he’s looking for someone to handle his divorce, but he says you haven’t even returned his telephone calls!”

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December 2009 49 Lawyer Discipline

Discipline Summaries (Sept. 16, 2009 through Oct. 16, 2009)

by Connie P. Henry

Voluntary Surrender/Disbarments The Moore 2 Closing This matter arose from Anderson’s practice of cre- Marsha Gay Boniface ating a paper trail by writing a check drawn on the Asheville, N.C. trust account for deposit directly back into the same Admitted to Bar in 2000 trust account showing the funds from the closing. On Sept. 28, 2009, the Supreme Court of Georgia dis- Instead of putting the check for the Moore 2 closing barred Attorney Marsha Gay Boniface (State Bar No. in the trust account, Whatley added it to the funds 067299). This reciprocal disciplinary action arose out of for deposit to the operating account and the funds Boniface’s disbarment in the State of North Carolina. were spent before the mistake was noticed. As Boniface misappropriated approximately $23,780 from Anderson was unable to satisfy obligations due to her attorney trust account. his trust account being overdrawn, FATIC satisfied some of the debts and has a judgment against Wade Gunnar Anderson Anderson for $301,128.14. Macon, Ga. SDB Docket No. 5081 Admitted to Bar in 1987 On Sept. 28, 2009, the Supreme Court of Georgia dis- Here, Anderson conducted a closing for a client and barred Attorney Wade Gunnar Anderson (State Bar No. received more in certified funds than was required to 018390) in State Disciplinary Board Docket Nos. 5081, conduct the closing, so he gave the client an escrow 5084, 5085, 5141 and 5181, plus an additional matter account check for the difference of $6,289.60. The check known as the “Moore 2” closing. The cases arose out of was returned for insufficient funds. The client received Anderson’s handling of his real estate trust account. a full refund after the receiver was appointed. Anderson was a real estate closing attorney approved SDB Docket No. 5084 by First American Title Insurance Company (FATIC). In 2005 several of his employees quit and he assigned to his In this case a client entered into a contract to buy remaining employee the task of sending wire transfers of a condominium and paid earnest money that went funds from closings. That employee mistakenly double- into Anderson’s escrow account. The contract fell wired funds from a single closing, and then the employ- through and the parties agreed the earnest money ee quit. As Anderson had no employees left to assist him, should be returned to the client. By then Anderson FATIC recommended Whatley as a “qualified closing had transferred all escrowed funds he held to a new assistant.” Within a two-week period Whatley double law firm. The client received her refund from the wired funds on nine separate closings and then Whatley new firm. quit. As a consequence of the double wires, Anderson’s SDB Docket Nos. 5181 and 5085 trust account became overdrawn by approximately $2,300,000 and the recipients did not immediately return These matters were based on reports from the Trust the funds, so numerous other trust account checks Account Notification Program that approximately 63 bounced. A temporary restraining order was issued and checks totaling over $76,000 drawn on Anderson’s a receiver was appointed to take over the law practice. account were presented against insufficient funds.

50 Georgia Bar Journal The checks were made good by The Court found that the double of license of Christopher M. the receiver. wiring of funds took place without Kunkel (State Bar No. 430329). Anderson’s direction or knowledge, Kunkel pled guilty on July 31, SDB Docket No. 5141 but although Anderson took steps to 2009, to violating 18 § USC 371, This matter concerns Bradbary, remedy the situation, he failed to Conspiracy to Commit Wire who owned a penthouse condo- adequately supervise his staff and Fraud, in the U.S. District Court minium that a buyer Anderson the operation of his practice. The for the Northern District of was assisting wanted to purchase. double wiring did not benefit Georgia, Atlanta Division. It was alleged that the hot tub in Anderson and he did not receive any the condo had leaked and caused proceeds from the double wiring. Joyce A. Wilson damage to the building and other The Court was more troubled by the Washington, D.C. units in the building. Bradbary Bradbary case. The Court found that Admitted to Bar in 1984 arrived at the closing expecting to Anderson acted in bad faith by uni- On Oct. 5, 2009, the Supreme receive the full amount of the laterally paying himself from the Court of Georgia disbarred funds due without deduction for Bradbary funds without consent. Attorney Joyce A. Wilson (State the potential damage as he had a In aggravation of discipline the Bar No. 768710). This reciprocal letter from the condo’s law firm Court noted Anderson’s two prior disciplinary action arose out of stating there was no damage claim. Formal Letters of Admonition Wilson’s disbarment in the District Anderson and the buyer had a let- which allows for disbarment for a of Columbia. The D.C. Court ter from the same firm stating that subsequent disciplinary infrac- found that while Wilson was act- the potential damage claim was tion. Before Anderson may peti- ing as a court-appointed guardian $75,052.27. With FATIC’s advice tion for reinstatement, he must for a ward of the state, she misap- and consent, the parties agreed that (1) satisfy the judgment in favor propriated approximately $10,000 Anderson would act as an escrow of FATIC in the amount of from her ward’s assets for her own agent and withhold funds from $301,128.14; (2) to the extent not personal use. Wilson failed to Bradbary’s proceeds to satisfy the covered by the FATIC judgment, respond to the D.C. Bar Counsel possible damage claim. Anderson make restitution to Bradbary of investigating the allegations and drafted an escrow agreement that $55,599.98 plus interest at the legal failed to participate in the discipli- the parties executed, and the clos- rate applicable to liquidated dam- nary proceedings. Wilson was per- ing was completed. Anderson felt ages from April 11, 2005, through sonally served with the notice of that Bradbary was being dishonest the date of repayment; (3) success- reciprocal discipline in this case in attempting to close without set- fully complete the Law Practice but failed to respond. ting aside funds for the damage Management Program of the State claim and he testified that he per- Bar; and (4) complete the first Wendell S. Henry sonally was subject to risk as any Ethics School administered by the Stone Mountain, Ga. damages paid by FATIC could be State Bar after reinstatement. Admitted to Bar in 1991 the source of an action by FATIC On Oct. 5, 2009, the Supreme against Anderson. Anderson Christopher M. Kunkel Court of Georgia disbarred worked to resolve the clouds on Norcross, Ga. Attorney Wendell S. Henry (State the title and reduce the amount of Admitted to Bar in 1983 Bar No. 348066). The State Bar filed the damage claims, and then paid On Oct. 5, 2009, the Supreme Formal Complaints on four disci- himself $30,000 from the escrowed Court of Georgia accepted the plinary matters but Henry failed to funds without Bradbary’s knowl- petition for voluntary surrender file an Answer to two of the Formal edge. The damage claim ultimately was determined to be $19,452.39, which FATIC paid. It is unclear what happened to the rest of the escrowed funds. There still should have been $45,052.27 in the account for Bradbary even after Anderson paid himself. Anderson states the funds were there when the receiver took over. Bradbary requests return of $55,599.88. Anderson was not entitled to any of the escrowed funds as fees and it was his duty to safeguard those funds for Bradbary.

December 2009 51 Complaints, and his Answers in issuance of policies to the compa- ple offenses and multiple clients; the remaining two matters were ny, collect premiums for those that Henry’s behavior exemplifies stricken as a sanction for his abuse policies, remit the premiums and a pattern and practice of miscon- of the discovery process. The State necessary paperwork, return duct; and that Henry either failed Bar was granted a default judg- unused forms and submit to the to participate in the disciplinary ment in each matter, such that the company’s examination of his process or submitted false state- allegations of each complaint were escrow account. During 2007, ments during that process, thereby deemed admitted. Henry began failing to meet his obstructing it. With regard to the first matter, a responsibilities to the company client discharged Henry, hired new and refused to submit to an exam- Suspensions counsel and both the client and ination of his escrow account. George E. Powell Jr. new counsel requested the client’s Effective Oct. 11, 2007, the compa- Dahlonega, Ga. file from Henry. Henry failed to ny terminated him as a member Admitted to Bar in 1986 surrender the file. New counsel agent. Henry continued to refuse On Sept. 28, 2009, the Supreme then served Henry with a court to submit to an audit of his escrow Court of Georgia accepted the peti- order requiring surrender of the account or to otherwise account to tion for voluntary discipline of file, but Henry ignored the order. the company for premiums, com- George E. Powell Jr. (State Bar No. The client then filed a grievance mitments, forms and other prop- 585943) and ordered that he be against Henry with the State Bar. erty that belong to the company. suspended from the practice of law The State Bar twice wrote Henry in Henry acknowledged service of for a period of three years. In con- an effort to obtain his response to the Notice of Investigation, but in nection with six related real estate the allegations set out in the griev- this case he submitted an closings, Powell prepared HUD-1 ance, but he failed to respond to untimely written response to the settlement statements that did not either letter. Henry finally provid- Notice in which he knowingly accurately represent the transac- ed new counsel with a copy of part made false statements. tions. Specifically, he indicated of the file, and improperly billed Finally, with regard to the fourth that funds not paid to the seller her $250 for copying. Henry did matter, between Oct. 31, 2007, and were to be paid to one lender as not respond to inquiries from the Feb. 22, 2008, Henry actively repre- the seller’s lender, but failed to Investigative Panel, although he sented a client in a workers’ com- indicate that those net funds were acknowledged service of the pensation matter despite being on actually being held on behalf of the Notice of Investigation. interim suspension during that seller for ultimate payment to a In the second matter, Henry time. Henry acknowledged service different lender. Subsequent HUD- undertook to represent a client in a of the Notice of Investigation, but 1 statements for the same closings workers’ compensation matter in submitted an untimely response indicated that the funds were June 2001. In March 2005, Henry that contained false statements. being attributed either to the seller advised the client that the employ- In addition to the above, the or to payment of the mortgage er wanted to settle the matter and Court noted that the the first two without specifying a particular that he would be working on a set- grievances filed against Henry lender. After three civil actions tlement package. In December proceeded to Formal Complaint were filed related to the properties 2005, after repeated attempts to only after Henry failed or refused at issue, the parties resolved reach Henry by phone were to accept delivery of certified the matter through mediation. unsuccessful, the client filed a letters advising him of the Powell’s clients were placed in the grievance with the State Bar and Investigative Panel’s decision to first lien position on the properties mailed Henry a letter discharging issue him Investigative Panel rep- as intended, and all funds were him. Despite the client’s requests, rimands with regard to those mat- distributed according to the terms Henry failed to return her file. ters. Further, the State Bar and the of the mediation agreement. In Henry failed to respond to special master gave Henry more mitigation of discipline the Court inquiries from the Investigative than sufficient opportunity to found the following mitigating fac- Panel and failed to timely respond explain his behavior and to assert tors: the absence of a prior discipli- to the Notice of Investigation his defenses to the various nary record, the absence of a self- despite having acknowledged charges, but Henry failed or ish motive, a cooperative attitude service thereof. refused to participate meaningful- towards the proceedings, good With regard to the third matter, ly in the disciplinary proceedings. character and remorse. Henry was a member agent of a The Court noted the absence of title insurance company. In such factors in mitigation of discipline, Suspension Lifted capacity he had the authority to but found in aggravation that Anthony Gus Caroway issue title insurance policies and Henry has a prior disciplinary his- Tallahassee, Fla. the responsibility to report the tory; that this case involves multi- Admitted to Bar in 1996

52 Georgia Bar Journal On Sept. 28, 2009, the Supreme A Smart Read for Smart Readers Court of Georgia accepted the Th e metro Atlanta legal community relies on the petition of Anthony Gus Caroway Daily Report (State Bar No. 111079) to lift his for award-winning coverage of the business 24-month suspension. Caroway of law, courts and legal aff airs. satisfied the condition for lifting Th e Daily Report serves its highly educated and affl uent the suspension set forth in the lawyer-readers with content relevant to their lives both Court’s opinion suspending him inside and outside the offi ce. from the practice of law. For advertising information please contact: Public Reprimand Mischelle Grant • (404) 419.2820 • [email protected] In the Matter of R.A.H. To subscribe call 1.877.ALM.CIRC On Oct. 5, 2009, the Supreme check us out Court of Georgia issued a Public www.dailyreportonline.com Reprimand In the Matter of R.A.H. The following facts FORENSIC ACCOUNTING EXPERT are deemed admitted by Respondent’s default: A client M. Martin Mercer, JD, CPA, FCPA, CFE, CFF retained Respondent to represent him in an aggravated assault case, (404) 326-8958 which later was dead docketed. CV at: www.MMartinMercer.com Two years later Respondent rep- [email protected] resented the same client in an • Over 25 years of experience in fi nance, accounting and fi nancial fraud aggravated stalking case in which • Licensed Attorney and CPA the client was convicted. The • Forensic CPA with the Society of Forensic CPAs client wrote to Respondent sever- • Certifi ed Fraud Examiner (CFE), Association of Certifi ed Fraud Examiners al times asking him to file a motion to dismiss the aggravated • Certifi ed in Financial Forensics with the American Institute of CPAs assault case or to send him the indictment number so he could file the motion himself, but Respondent never responded to the client’s requests. In aggravation of discipline, the Court took into consideration Respondent’s prior discipline, which included an interim suspension and two Formal Letters of Admonition. Interim Suspensions Under State Bar Disciplinary Rule 4-204.3(d), a lawyer who receives a Notice of Investigation and fails to file an adequate response with the Investigative Business Valuations Panel may be suspended from the practice of law until an adequate Divorces ! Estate/Gifts ! ESOPs ! Disputes ! Fairness Opinions response is filed. Since Sept. 16, Family Limited Partnerships ! Intangible Assets 2009, four lawyers have been suspended for violating this Rule and Mitchell Kaye, CFA, ASA two have been reinstated. (770) 998-4642 e-mail: [email protected] Connie P. Henry is the clerk of the State American Society of Appraisers ! Past President, Atlanta Chapter Disciplinary Board and Chartered Financial Analyst can be reached at serving appraisal clients since 1981 [email protected]. Court Testimony / IRS Experience

December 2009 53 Law Practice Management

Five Quick “To Dos” for Your Practice in the New Year by Natalie R. Kelly

f you are a list person like I am, you are probably

already working on creating a “to do” list for the I new year. I believe you will find that adding these five office management “to dos” to the top of that list will create a seamless transition from this year to the next. These suggested “to dos” can help you and your firm become more efficient, and maybe even more profitable, in the year to come. Get Practice Management Software

You’ve heard time and time again that this software is a must for efficient practice management. In fact, it’s difficult to understand how you are practicing effectively without it. So, take a moment to review the list below for a system suitable for your practice and make an appointment with the Law Practice Management program to learn more or to go ahead with a purchase of this important software. Top Applications for Practice Management by Firm Size Small Firm Mid-Sized Firm ■ Amicus Attorney by Gavel & Gown Software ■ Client Profiles—www.clientprofiles.com Inc.—www.amicusattorney.com ■ Perfect Practice by ADC Legal Systems Inc.— ■ AbacusLaw by Abacus Data Systems Inc.— www.perfectpractice.com www.abacuslaw.com ■ ProLaw by Thomson Elite—www.prolaw.com ■ Practice Master by Software Technology Inc.— ■ Omega Legal by Omega Legal Systems Inc.— www.practicemaster.com www.omegalegal.com ■ Time Matters by LexisNexis— ■ TrialWorks by Lawex Corp.—www.trialworks.com www.timematters.com

54 Georgia Bar Journal Large Firm with generating documents in your of everyone who owes (A/R report) ■ Aderant—www.aderant.com law office in the new year. so that you can determine an appro- ■ Thomson Elite’s 3E and priate plan for collection. Enterprise—www.elite.com Keep Better Books ■ RealLegal Practice Manager— This is not just about having a Bonus www.reallegal.com checkbook that you balance for ■ CaseManagerPro by Solutions every account that you have. It’s Plan/Take a Vacation In Software Inc.—www. taking more responsibility in the Once you’ve got your brand new casemanagerpro.com process and making sure you are shiny 2010 practice humming away, ■ Legal Files by Legal being prudent when it comes to you need to take some time for Files Software Inc.—www. managing client money (trust yourself. Plan a full vacation. If you legalfiles.com accounting) and your operating stop long enough to decide what account (income and expense you’ll wear to the beach or for that Do Daily Backups and tracking and planning). With mountain hike, you are still getting Bi-Monthly Restores tighter economic times comes the some well-deserved relaxation and need to do a better job of keeping down time. Even if you are not able This is the other thing you’ve up with the money in your prac- to take the trip, a mental break from heard preached over and over; and tice. Call us for help with options the flurry of office activity can mean if by chance you have had the if you are still doing things by the difference between a hurried unfortunate pleasure of dealing hand, or just sending it all off to office management decision and one with an office disaster, you know your accountant. of the wisest things you’ve done yet first-hand how important it is to for your practice! have a good backup of your firm’s Stay On Top of Client data. Check out www. Billing Natalie R. Kelly is the backupreview.info for a director of the State list of top products and services; One of the top requested areas for Bar of Georgia’s Law and pay close attention to advice in 2009 was client billing. Practice Management these top contenders when “How do we get paid?” was the Program and can be looking for an online ven- theme of many conversations held in reached at nataliek@ dor: Mozy (www.mozy.com), our offices and our educational pro- gabar.org. Carbonite (www.carbonite.com), grams this past year. Beyond raising Iron Mountain (www.iron hourly billing rates, moving to flat fee mountain.com) and EVault billing and other alternatives, we (www.evault.com). I also like urged many firms to take a look at the portable backup FreeAgent their entire billing and collections Go and Replica units from process. Do your clients get your bills Seagate (www.seagate.com). Thumb in a timely manner and at a time drives, tape drives (high-end), CDs when they are most likely to pay? and DVDs work fine too, as long as How do the bills look and do you you can restore files from them. make it easy for them to be paid? Credit cards? Debit cards? Staff con- Use PDFs tact for past due bills? The list of You’ve resigned to go all the questions you could ask about your way paperless in your office, but bills may seem endless, but you can you were paying attention at that ensure a very stable system for last CLE where you were warned client billing by investing time of the dangers of sending out Word into the systems you use and documents with their metadata or the procedures you follow in e-mails that have not been encrypt- your practice each month. I ed. Using PDF files—most often like ABACUS Law Gold or ABACUS generated by Adobe Acrobat Accounting (www.abacuslaw.com), Standard or Professional Edition Amicus Accounting (www.amicus (or online at www.adobe.com) — accounting.com), PCLaw (www. can help deliver more secured doc- pclaw.com) and TABS3 (www. uments. With options available tabs3.com); or for billing and trust such as securing the document so accounting only, no general ledger that only you can print or down- accounting, Timeslips (www.times- load it, this format is the way to go lips.com). Also, do a monthly review

December 2009 55 South Georgia Office

The Art of Economy: Council of State Court Judges Create an Economical Conference by Bonne D. Cella

he challenge to protect the court’s core function

of maintaining the Rule of Law amid today’s T budget restrictions requires innovative thinking in and out of the courtroom according to Judge

Ronald Ginsberg, president of the Council of State Court

Judges (the Council). Considering this, the Council sought a more economical venue for their 39th Annual

Fall Conference, which is usually held at a resort location.

Judge Larry Mims invited and encouraged the 108 active members to come to his hometown of Tifton for the conference—although some of the members had to be convinced to break with tradition and try something new. Bob Bray, executive director of the Council, worked with Mims, the Tift County Commissioners, Tifton Tourism and the State Bar of Georgia’s South Georgia Office1 to plan the three-day event. The University of Georgia Conference Center in Tifton offered state of the art meeting facilities and the new and pristine Hilton Garden Inn skillfully accommodated the distin-

guished guests, including Chief Justice Carol Photos by Bonne D. Cella Huntstein and Court of Appeals Judges Anne Julie Hunt, Tifton businesswoman, entertained members of the Elizabeth Barnes, Sara Doyle and Harris Adams. Council of State Court Judges at her lakeside home. “Welcome to Tifton” baskets brimming with peanuts, pecans, candy, jams, grits, fresh produce and be missed destinations were placed in each guest’s sundry items along with maps and lists of local not-to- room, compliments of Tifton merchants and businesses.

56 Georgia Bar Journal Extracurricular activities includ- The tour was followed by tea your own unique and economical ed a luncheon for spouses at the his- and an elegant dinner with conference while seeing more of toric Three Graces at The Lankford live musical entertainment at the what Georgia has to offer! Manor, a private tour of the Georgia beautiful home of local business- Agrirama with dinner, guided fish- woman Julie Hunt. Bonne Cella is the ing on a private lake with the local Judge Maurice Hilliard Jr. of office administrator at Bass Busters Club, golf at beautiful Roswell sent a gracious thank you the State Bar of Sunsweet Hills, and a tour of a note to his hosts stating, “It was an Georgia’s South charming cottage and garden incredible experience, and my vote Georgia Office in restored to its original beauty by will go to Tifton for any other Tifton and can be Tifton interior designer Mary Glynn meetings in the future!” reached at [email protected]. Hendricks and her husband, Larry. Many other locations in Georgia A community leader, Hendricks (not usually thought of as meeting Endnote works hard to promote her home- destinations) have much to offer 1. The South Georgia Office will be town and was glad to help host the visitors, and their local citizens are glad to help plan and facilitate judges’ conference. generous and hospitable. Create your law-related events.

2009 Council of State Court Judges Annual Fall Conference

(Left to right) Hon. Larry Mims, judge, State Court of Tift County; Hon. Ronald Ginsberg, president, Council of State Court Judges; Marla Moore, director, Administrative Office of the Courts; and Bob Bray, executive director, Council of State Court Judges, arrive at the Hilton Garden Inn.

Judges and their guests tour the Agrirama, Georgia's Museum of Agriculture and Historic Village, located in Tifton.

(Back row, left to right) Bass Buster guides Gary Courtoy, James Kushmer and Historic Three Graces at the Lankford Manor. David Pettis; Hon. Ronald Ginsberg and Hon. Neal Dettmering. (Front row, left to right) Hon. Anne Barnes, Hon. Patricia Booker and Hon. David Watkins.

December 2009 57 Section News

Section News and Updates by Derrick W. Stanley

ver the past several months, varying sec-

tions of the Bar have held events that O have provided networking and educational opportunities as well as fulfilling meetings required in their bylaws.

Specific Problems in Franchising–Drafting and Practice was a networking lunch program held at Maggiano’s Little Italy in Buckhead by the Franchise and Distribution Section. This discussion was moderated by Tom Branch, Mallernee & Branch, and Melissa Rothring, Nexcen Brands. Topics that were discussed included: transfers, renewals, expiration vs. termination and conversions. The Entertainment and Sports Law Section ended the season with their Summer Mixer on Aug. 27. Hosted by Stephen Weizenecker, Adorno & Yoss LLC, section members gathered at the law firm to network after a long day at the office. Stanley Photo by Derrick W. IDS Ideas—Practice Pointers for Complying with the Duty Members of the Appellate Practice Section meet to discuss the strategic direction of the section. of Disclosure was presented to the Intellectual Property Law Section on Sept. 21. Robert E. Stachler II, Gardner After Burlington Northern—A Technical Perspective at Groff Greenwald & Villanueva, PC; Rebecca C.E. Arnall Golden Gregory LLP. Brooke Dickerson and McFadyen, Ballard Spahr Andrews & Ingersoll, LLP; John Spinrad, Arnall Golden Gregory LLP, and Jay and Michael R. Asam, Fish and Richardson, P.C., dis- Vandeven, ENVIRON, led this discussion that provid- cussed best practices for complying with the duty of dis- ed one hour of general CLE credit. closure. The panel discussed Dayco, McKesson and Larson At 7:30 a.m. on Oct. 7, the Labor and Employment and led a roundtable discussion on the gray areas of the Law Section held the first in a series of breakfast semi- topic and gave practice pointers to the attendees. nars. What’s Going on at the U.S. Department of Labor? Court of Appeals of Georgia Judge Sara L. Doyle brought many attorneys to the Bar Center to hear spoke at the Appellate Practice Section luncheon and Regional Solicitor Stanley E. Keen provide an overview annual meeting on Sept. 24, at the law offices of of the department including recent changes and trends Holland & Knight LLP. New officers were elected and in some of the agencies. The section plans to have sev- section members had the opportunity to network with eral more of these events throughout the Bar year. Doyle and other judges in attendance. During the month of October, the Intellectual On Sept. 30, the Environmental Law Section present- Property Law Section sponsored the CLE program In Re ed a brown bag luncheon titled Superfund Allocation Bose with the help of the section’s Trademark

58 Georgia Bar Journal Committee. Charles Heiken, princi- keynote speaker at the Creditors’ and volunteers stepped up to pal at the Boston office of Fish and Rights Section luncheon and annu- chair programs that will con- Richardson P.C., outlined his strat- al meeting on Oct. 15, at the tribute to the continued success of egy and the implications of the Wildfire restaurant in Atlanta. the section. decisions made. Panelists Virginia Biggins discussed the rules of the It is also necessary to mention Taylor and Jim Johnson asked court and effective practices for the importance of ICLE to the suc- questions and guided the discus- attorneys. He also amused the cess of the section events. ICLE co- sion for the participants. The fol- attendees with anecdotes from his sponsors events that offer CLE lowing day, Oct. 13, the patent past and how they have influenced credit. Due to the strength of the committee of the section assisted in his practice on the bench. long-standing relationship, ICLE delivering The Bilski Case at the The newly formed Employee works to ensure section events are Supreme Court. This CLE event Benefits Section held an afternoon tracked and maintain the highest drew a large crowd of interested tea on Oct. 22, at the Four Seasons level of education. attorneys who had been following in midtown Atlanta. Prospective To enjoy the benefits of section this case through different CLE members came to join the section membership, please visit www. programs. Associate Erika Arner, and discuss ways to get up and gabar.org/sections and complete from the Reston, Va., office of going as well as assigning volun- the application, selecting as many Finnegan, Henderson, Farabow, teers to committees. This new sec- sections as you would like to Garrett & Dunner, LLP, reviewed tion has been working very hard join. You may also contact the positions taken by Bilski, the and should have their first CLE Derrick Stanley at 404-524-8774 or U.S. Patent and Trademark Office program in the near future. [email protected]. director and dozens of expected The Appellate Practice Section amicus parties. This program was held an organizational meeting on Derrick W. Stanley is underwritten by Finnegan who Nov. 4, at the Bar Center. The pur- the section liaison for provided the lunch and all costs pose of this meeting was to charge the State Bar of associated with this program. volunteers with objectives to Georgia and can be Hon. Franklin N. Biggins, Fulton move the section into the future. reached at derricks County Magistrate Court, was the Upcoming events were discussed @gabar.org. When will you find out how good your malpractice insurance really is? Not all malpractice plans are created equal. When the gavel falls Our team of lawyers professional liability the outcome may depend on the quality of your team. specialists will work to provide a comprehensive policy at a competitive price with Liberty Insurance Underwriters, Inc., a With nearly three decades of experience in the court room, Decosimo’s litigation and forensic services member company of Liberty Mutual Group. professionals are an invaluable part of any litigation Liberty is rated A (Excellent), Financial Size Category team. XV ($2 billion or greater) by A.M. Best Company. From damage calculations to fraud investigation, business valuation to expert witness testimony, Turn to the team of professionals who know Decosimo plays a critical role in the litigation process and in helping you make the case. the industry and will recommend the right coverage for you. The verdict is in - Decosimo. Call or visit our Web site for a quote or for DECOSIMO more information on this quality coverage. 1-800-365-7335 (ext. 6435) Sharon Ecker Marsh ConsumerConnexions +*0 0ŏ %'!ŏ+/0!((+ČŏŏđŏČŏŏŏ+.ŏ%((ŏ 1ûČŏČŏŏ 3475 Piedmont Rd, Ste. 1200 at 800.782.8382 or visit decosimo.com. Atlanta, GA 30305 Administered by: Atlanta | Chattanooga | Cincinnati | Dalton www.proliability.com/lawyer Grand Cayman | Knoxville | Memphis | Nashville CA#0633005 42945, 42947, d/b/a in CA Seabury & Smith Insurance Program Management 42949, 42951, ©Seabury & Smith, Inc. 2009 42953

December 2009 59 Casemaker

Boolean and Natural Language Searching in Casemaker 2.1 by Sheila M. Baldwin

ull Document Searching in Casemaker is context when searching a topic. Boolean searches require careful selection of keywords and the use of no doubt the area where most research logical connectors between keywords. The following are the four basic elements. takes place and therefore the area where F And training and practice should be concentrated. This By separating words with just a space, documents with all search terms will appear, yielding docu- issue we will explore the language used when search- ments containing both search terms. For example, divorce alimony. ing within the Full Document Search area. The Or Casemaker search engine employs intuitive technolo- By putting parentheses around two terms separated by a comma (no spaces allowed), the user will find doc- gy which includes both Boolean and Natural uments with either term in the text or both, such as (alimony,support). Language protocols. It is important to understand the Not (exclusion) basic logic behind each one to gain the most relevant By placing a hyphen in front of a term (no spaces allowed), the unwanted term is eliminated from the and abundant results. search. For example, property –residential will yield documents with the term “property” but excludes doc- Four Basic Search Functions uments with “property” and “residential.”

Boolean logic, named after the British mathemati- Phrase cian George Boole who pioneered this system in the By surrounding a phrase with quotation marks, mid 19th century, enables precise queries by specifying documents with that exact phrase appear, such as the relationships between words to give meaning and “statute of limitations.”

60 Georgia Bar Journal ANY STATE . ANY NATION . ANYWHERE . ANY STATE . ANY NATION . ANYWHERE. ANY STATE

. WE SERVE ANYTHING,

ANY NATION ANY NATION

. ANYWHERE STATEWIDE . NATIONWIDE . WORLDWIDE

ANY STATE ANY STATE ANYWHERE

. 1-800

. ANYWHERE

ANY STATE . PROCESS .

ANY NATION ANY NATION

. "If we don't serve it, ®

. ANY STATE ANY STATE

ANYWHERE . you don't pay" Only in the U.S.A. .

ANY STATE ANY WHERE

(800) 672-1952 Fax: (800) 236-2092 www.served.com/email:[email protected] .

ANY NATION ANY NATION

. INTERNATIONAL Call for cost 1-800-PROCESS

. . .

ANY STATE ANY NATION ANYWHERE ANY STATE ANY STATE

. ANY STATE . ANY NATION . ANYWHERE . ANY STATE . ANY NATION . ANYWHERE Advanced Tools include the term such as Document Search area. The The Advanced Tools are logic “+custody” which yields docu- search engine uses its own intelli- connectors that formulate searches ments that must include the gence to find the results that based on the relationship between word custody. match your query based on the the terms such as proximity, fre- data contained in the selected quency or similarity. Thesaurus Search library. Be aware that too many By placing a tilde (~) immediate- terms will result in an error mes- Intersection Tools ly in front of a term, documents sage, phrases without quotation Advance Boolean searches include with that term and/or any marks work better than complete the use of Intersection Tools. By put- synonyms of the word appear. sentences and correct spelling is ting the “@” symbol in front of a num- Using “~parole” yields docu- necessary. Try using this method ber, the user can return documents ments containing: “parole,” “pro- initially to locate documents that with multiple terms present. This tool bation,” “release,” “free, “dis- suggest concepts, word choices is helpful in harvesting the most rele- charge,” etc. (see figs. 3 and 4). and legal terminology to help vant documents. Examples include: you formulate a comprehensive Suffix Expansion Search Boolean search. Well-constructed ■ “support alimony divorce @1” By placing an asterisk (*) Boolean searches occasionally yields results with at least 2 of directly behind a root word, miss relevant documents or pro- the terms—similar to an “or” all forms (plurals, past tense, duce an overabundance of extra- ■ “support alimony divorce @0” etc.) will be found. In this exam- neous results. It may be worth- yields any of the 3 terms ple, “stalk*” will yield documents while to perform a Natural ■ “support alimony divorce @2” containing: stalk, stalks, stalker, Language search even after using yields all terms—similar to stalking, etc. the Boolean approach. “and” To conduct successful research Multiple Function Search on Casemaker, experiment with Proximity Searching with these terms, the features mentioned in this arti- Defining the proximity of key- “modification counterclaim child cle. There is no substitute for prac- words also adds to the relevance of a custody 19-9-*,” 29 cases are found. tice; the more you use Casemaker, search. All proximity parameters can Narrow the search by adding the better researcher you will be entered into any search devices such as the tilde and the become. Please feel free to e-mail field by using “w/.” The proximity asterisk and you produce this [email protected] or call 404-526- parameter can be placed anywhere query, “modification ~counter- 8618 if you have any questions within the search string. “w/3” claim child +custody –support 19- about Casemaker. means within three words, “w/sent” 9-*,” which results in six cases. (see within a sentence and “w/para” figs. 5 and 6). Sheila Baldwin is the within a paragraph. (see figs. 1 and 2). member benefits coor- Natural Language dinator of the State Inclusion Search Natural Language searches are Bar of Georgia and can Place a plus sign (+) before a accomplished by typing words or be reached at word to find results that must a phrase into the Casemaker Full [email protected].

Hardestwww.gab Working Site ar.orgon the Web.

62 Georgia Bar Journal 1 2

3 4

5 6

We offer Casemaker training classes four times a month. Upcoming training classes can always be found on the State Bar of Georgia’s website, www.gabar.org, under the News and Events section. Onsite Casemaker training can also be requested by local and specialty bar associations. Writing Matters

Fifteen Frequent Flaws

by Karen J. Sneddon and David Hricik

e all have been humbled to see the

occasional gaff crop up in our writ- W ing. The occasional gaff becomes a problem when the gaffs litter every sentence. This installment of “Writing Matters” describes 15 things that readers may view as sloppy writing, slipshod thinking and bad lawyering. So, as you are polishing a letter to a client, a memo for a senior partner or a filing for a court, consider these 15 frequent flaws. When It’s a Problem

With the speed of typing, apostrophes are starting to float around the page and be attracted to unsus- pecting letters. It’s remarkable that we see “it’s” used for the possessive. “It’s” always means “it is.” So check that quick typing fingers don’t inject wayward apostrophes. “I.e.,” When You Mean “e.g.” Even assuming it to be proper use in the first instance (that is, should you ever use “i.e.” or “e.g.” rather than actual English), these two abbreviations for

64 Georgia Bar Journal Latin words are often misused. “I.e.” means “that is;” “e.g.” means “for example.” SHOUTING AT THE READER

It may be helpful for lawyers to capitalize the initial letter of defined terms in agreements, such as real estate closing documents or settlement agreements. Doing so avoids ambiguity and brings clarity. BUT USING CAPI- TALIZATION TO EMPHASIZE IS ANNOYING.1 N D L The Awkward S/he Norwitch Document Laboratory Using gender neutral language Forgeries - Handwriting - Alterations - Typewriting is a good thing. But sensitivity Ink Exams - Medical Record Examinations - “Xerox” Forgeries to the use of gender neutral F. Harley Norwitch - Government Examiner, Retired language has spawned the awkward s/he. How do you Court Qualified Scientist - 27 years. Expert testimony given in pronounce “s/he”? Alternatives excess of three hundred times including Federal and Off-shore include using “she” in some paragraphs, and “he” in another. 1 17026 Hamlin Boulevard, Loxahatchee, Florida 33470 Another option is to rewrite the www.questioneddocuments.com sentence using plural. So, an attor- Telephone: (561) 333-7804 Facsimile: (561) 795-3692 ney filing for CLE must file his application becomes attorneys filing for CLE must file applications. Except in Unusual Circumstances,

“Cannot” Should be INVESTIGATIONS BUSINESS NEEDS PERSONAL NEEDS One Word “Cannot” means that something is impossible. Due to the storm, the jurors cannot deliberate. In contrast, “can not” indicates a choice. Due to the storm, the jurors can not deliberate. This indicates that they can, if they REAL ESTATE TECHNOLOGY INSURANCE want to. In most cases, you cannot use two words to say what you likely intend. “Impact” as a Verb Over time the meaning and use of words can change. One such change is when a word that TRIAL NEEDS OFFICE NEEDS FINANCIAL NEEDS was a noun becomes a verb, such LLocateocate vvendorsendors bbyy nnameame oorr tthehe sserviceervice ttheyhey as the word “access.” The one pprovide.rovide. TThehe ddirectoryirectory iiss yyourour oone-stop-shopne-stop-shop change from noun to verb that llistingisting fforor ccompaniesompanies tthathat ssupportupport tthehe aattorneysttorneys ooff catches most readers’ eyes is the tthehe SStatetate BBarar ooff GGeorgia.eorgia. Online Vendor DIRECTORY word “impact.”2 Whether it has If you have any questions regarding the Vendor Directory, please contact Natalie Kelly at [email protected] an impact on readers or not, or 404-527-8770. many lawyers use “impact” as a

December 2009 65 “And Justice for All” 2009 State Bar Campaign for the Georgia Legal Services Program, Inc.

If they can’t afford an attorney, where do they go for legal assistance?

Fighting Foreclosure Mr. Samuel Jones, a veteran who has lived in his home for over 30 years, paid off his original mortgage loan in 2006. In 2007 he took out a $55,000 equity loan. In 2008, his mortgage company informed him of a payment increase which would include taxes and insurance, unless he paid those costs separately. Mr. Jones wrote to the mortgage company that he would continue paying these costs separately, and he did so. Mr. Jones never missed a mortgage payment, but he began receiving delinquency notices from the mortgage company, which he disputed. In July, he received a notice that his home had been sold in a foreclosure sale. Mr. Jones contacted GLSP to help him keep his home. A GLSP lawyer contacted the attorney for the mortgage company, and provided the letters that Mr. Jones had written and his payment history. As a result the mortgage company rescinded the foreclosure sale. Working together we can fulfill the promise of Justice for All. Georgia Legal Services Program® GLSP is a non-profit law firm recognized as a 501(c)(3) by the IRS.

This client story is used with permission. The photograph and name do not necessarily represent the actual client.

Give easily online at www.glsp.org (click Donate Now) or return this card with your check. Individual Firm Gift Mr. Ms. Mrs. Judge Name: 4PIHKIW PLEASE WRITE YOUR FULL NAME AS IT SHOULD APPEAR IN OUR DATABASE or HONOR ROLL Firm: I will pledge a gift. Please bill me on ______for a pledge of ______Address: (Final payments are due December 31st of this year.) I UNDERSTAND MY TAX-DEDUCTIBLE GIFT WILL PROVIDE LEGAL ASSISTANCE TO LOW-INCOME GEORGIANS. I am interested in learning more about the Yes! I support the Georgia Legal Services Program (GLSP). Georgia Legal Services Foundation. You may give by credit card at Enclosed is my check in the amount of $______www.glsp.org! Substantial gifts of $150 or more will be included in the Honor Roll of Contributors in the Georgia Bar Journal. Make checks payable to: Please keep my gift anonymous. Georgia Legal Services Program verb, as in “the law impacted The attorney advised her client to con- writers to quote the source material, society.” Its use has grown over sider her advice. so readers can see for themselves the the years, but to many readers, it exact words behind the paraphrase has a negative impact. For that Torturous Issues or characterization. Too many legal reason, avoid it unless you Automatic spell check can create writing instructors discourage quo- know it will not impact your problems. Consider the often tation of source materials. That only reader’s reaction. used word “tortious” that be- makes more work for those readers comes“tortuous” or, even worse, who may not necessarily want to “Must” Instead of becomes “torturous.” take the writer’s word for it.3 “Should” or “May” Sprawling Sentences But too many quotes, especially To a lawyer, the use of “may” Deftly used punctuation can a series of quotes in close proximi- instead of “must” is a critical dis- infuse writing with a sense of ty, can be difficult for the reader to tinction. One indicates choice; the sophistication. It can also encourage absorb. The reader may be so over- other, obligation. Yet, often we see sentence sprawl. Each sentence in a whelmed at the number of quotes legal writers casually use these paragraph becomes longer than the to process that he or she is left to words interchangeably. preceding sentence until even wonder whether the writer could Marcel Proust would be impressed. actually discern the relevant infor- Irregardless Reading a text out loud can help mation. Thus, judicious use of Based on the increased use of check for sprawling sentences. If quotes highlights the relevant lan- this “word” in our every day con- you run out of breath before the end guage, without inundating the versations, “irregardless” may of the sentence, you’ve probably reader with quotation marks. become an actual word. However, identified a sprawling sentence. at this point, it’s not an actual Karen J. Sneddon is word. “Regardless” means “with- “Alright” Isn’t an assistant professor out regard to.” What does “irre- “All right” is all right; alright at Mercer Law School gardless” mean? Regardless, is not. and teaches in the lawyers use “irregardless” when Legal Writing Program. they should not. Clichés Vivid writing keeps the reader David Hricik is an asso- The Principal is Your Pal, engaged in the material. To ciate professor at but the Principle is Not increase the vivaciousness of the Mercer Law School material, we often sprinkle who has written sever- We learned in grade school in metaphors. These metaphors al books and more that “the principal is your pal.” project an image. An overused than a dozen articles. Yet, this catchy phrase doesn’t metaphor becomes a cliché, The Legal Writing Program at eliminate the inadvertent slip of such as “sell like hotcakes.” So Mercer Law School has consistently these homophones. “Principal” rather than suggesting a novel, been ranked as one of the Nation’s can be either a noun or an adjec- engaging image, a cliché projects Top Legal Writing Programs by U.S. tive. It refers to a person or a stale, generic image that doesn’t News & World Report. thing that is highest in rank or keep the reader engaged. To importance. So, proper use of check whether your phrase is a Endnotes “principal” isn’t limited to the cliché, use http://www.westegg. 1. For an examination of formatting individual in charge of a school. com/cliche/. issues, including “Stop screaming For example: As of December 1, at me in rectangles: Why all capital the balance of the principal on Overuse of Quotes letters just don’t work,” see Ruth Anne Robbins, Painting with Print: Gwen’s home mortgage is $85,000. The number of quotations to Incorporating Concepts of “Principle” is an adjective that include can be difficult to deter- Typographic and Layout Design into relates to an ideal, standard, doc- mine. Quotes can be valuable, and the Text of Legal Writing Documents, trine or law. For example: The the absence of quoted language can 2 J. ALWD 108, 115 (2004). principles of economics suggested be problematic. As one California 2. One freelance writer and editor even that the housing bubble had to burst. court recently noted, has a webpage tapping into this debate. His webpage is Advising Advice Brevity may be the soul of wit, but http://www.impactisnotaverb.com/. Similar in meaning, the differ- it is sometimes not conducive to legal 3. Griffin Dewatering Corp. v. N. Ins. ence between these words is the proof. . . . If readers want to know Co. of N.Y., 97 Cal. Rptr. 3d 568, n. part of speech. “Advise” is a verb; whether a paraphrase or characteri- 7 (Cal. Ct. App. 2009) (emphasis in original). “advice” is a noun. For example: zation is accurate, the best way is for

December 2009 67 Professionalism Page

The National Institute for Teaching Ethics and Professionalism

by Clark D. Cunningham and Charlotte S. Alexander

n 2005, the Chief Justice’s Commission on

Professionalism (the Commission) authorized I seed funding through a three-year grant that made possible an entirely new professionalism initiative: national workshops that bring together leaders from both legal education and the profession to share effective and innovative methods for teaching ethics and professionalism to both law students and practitioners. To operate these workshops, a consortium of nationally-recognized centers on ethics and professionalism came together to form the National Institute for

Teaching Ethics and Professionalism (NIFTEP).

Each consortium member provides funds to match the grant from the Commission. The Georgia State University College of Law, as one of the consortium members, provides administrative support with funding Photos provided by NIFTEP Prof. Patrick E. Longan, William Augustus Bootle Chair in Ethics at from the W. Lee Burge Endowment for Law & Ethics. Mercer University School of Law, presents on professionalism during a NIFTEP workshops are also officially sponsored by the NIFTEP workshop. American Bar Association Standing Committee on Professionalism, which participates in workshop plan- NIFTEP Fellows and receive full funding to cover their ning and sends representatives to each workshop. expenses to attend the workshop, for which no regis- Workshop participants, who are selected through a tration fee is charged. The Fellows are joined at each national application process, are designated as workshop by prominent speakers from the fields of

68 Georgia Bar Journal law, education, journalism, medi- allows all who value the inculca- cine and psychology. tion of professional identity to As explained by NIFTEP Fellow come together in a way to have Prof. Paul Paton, director of the the greatest impact for construc- Ethics Across the Professions tive change.” Initiative at the University of the Orrin “Skip” Ames, partner at Pacific McGeorge School of Law, Hand Arendall LLC in Mobile, “The fellowship is a critical part of Ala., program chair of the endeavor and builds communi- the Defense Research Institute ty that lasts.” In his view, NIFTEP is Lawyers’ Professionalism and “something unique and important Ethics Committee and adjunct law for the bar and the academy that professor (ethics), attended the offers an extraordinary opportunity spring 2009 workshop and report- to those participating in it. Its ed that, “Everything that I learned impact is felt nationally was relevant and helpful to my and internationally.” law practice and to my teaching. John Berry, director of the During my years as an attorney Jim O. Stuckey II, past chair, ABA Standing Florida Bar’s Legal Division, was and as a teacher, this workshop Committee on Professionalism and current chair of the ABA’s Standing was clearly one of the best experi- associate general counsel, SCANA Corporation Committee on Professionalism ences that I have had.” speaks during a NIFTEP workshop. when NIFTEP was founded and Prof. Cynthia Batt, director of has participated in most of its Clinical Programs at Temple feeling inspired and affirmed in workshops. According to Berry, University Beasley School of Law, my work.” “The strength of NIFTEP is that it also agreed that the NIFTEP Since NIFTEP’s inception in gives help and encouragement to workshop in which she participat- 2005, more than 80 law professors the individual schools and profes- ed “was one of the best confer- and practitioners from around sors making differences in their ences I have ever attended,” fur- the country have taken part in schools and just as importantly, it ther saying that she “came away these stimulating and highly par-

December 2009 69 In June 2009, NIFTEP requested to teach professional responsibility that each of the 80 prior workshop in the law school classroom. participants complete a detailed In 2008, the Commission not online evaluation form. Out of all only renewed its grant to NIFTEP possible responses, the evaluation for another three years, but received a response rate of 81 per- increased the amount to enable cent, nearly one-third of which NIFTEP to offer two workshops were State Bar of Georgia mem- per year. The university members bers. More than half of the responded by doubling their con- responses indicated that the tributions and Georgia State workshop was “one of the best University College of Law allocat- I’ve ever attended” in comparison ed funds to employ the first deputy to other ethics and professional- director for NIFTEP. ism workshops, and more than Members of the State Bar can one-third indicated that the work- participate in NIFTEP workshops shop was “one of the best I’ve in three different ways. You may ever attended” in comparison to apply through the national applica- all other professional development tion process for selection as or academic workshops. Douglas Fellows; you may be chosen as one Ashworth, director of the State of three representatives by the Bar’s Transition into Law Practice Commission; and you may partici- Program and past NIFTEP Fellow, pate as invited speakers. described the insights he gained For more information about from the NIFTEP workshop on NIFTEP, please visit http:// “how to tailor programs on prolaw.gsu.edu/niftep/. To be placed fessionalism” as causing “a light on the mailing list to be notified bulb to come on.” when applications are available Through the evaluation, many for the 2010 NIFTEP workshops former fellows shared ways that scheduled for March 19-21 and they have used their NIFTEP Nov. 13-15, and to receive other workshop experience in their NIFTEP news, please e-mail teaching or practice. For example, NIFTEP Deputy Director among the practitioners, two Charlotte Alexander at calexan- lawyers from other states report- [email protected] and put NIFTEP ed that they had used the example Mailing List in the subject line. of the State Bar’s mentoring pro- The 2010 workshops are sched- gram to develop mentoring pro- uled to be held at Red Top grams at their law firms and in Mountain State Park Lodge in (Top to bottom) Representatives of the Chief their own state bar associations; a Cartersville, which has been the Justice's Commission on Professionalism to teacher of ethics CLEs stated that venue for NIFTEP workshops the NIFTEP workshop: Donald R. Donovan, he learned from the NIFTEP since 2006. chair, State Bar of Georgia Committee on workshop how to draw a reluc- Professionalism; Ian E. Smith, King & Spalding LLP; and Avarita L. Hanson, execu- tant audience into a discussion by Clark D. Cunningham tive director, Chief Justice’s Commission on using video clips, photos and is the director of Professionalism. hypotheticals creatively; and a NIFTEP and the W. Lee member of the ABA’s Law Burge Professor of Law ticipatory workshops which have Practice Management Section and Ethics at Georgia addressed topics ranging from reported that discussions at the State University performance-based assessments NIFTEP workshop influenced the currently in use in law schools and section’s formation of their own College of Law. He can be reached in practice, the basic competencies objectives and goals around ethics at [email protected]. of a lawyer in the first year of and professionalism instruction. practice, professional identity for- Law professors’ responses were Charlotte Alexander mation among law students, the similarly positive, including is the deputy director practice of law as a business, and reports that the NIFTEP work- of NIFTEP and can be the development of moral deci- shops had influenced curricular reached at sion-making in law students and reform and the development of [email protected]. new lawyers. new, creative and interactive ways

70 Georgia Bar Journal The Murphy clan of 22 are officially moved in to their brand new, state-of-the-art home in McDonough, Ga.!

BUT MORE HELP AND SUPPORT IS NEEDED! Donations today will help pay off the house tomorrow, and provide support for the family long into the future—protecting the kids and the new house! There is also a long list of items still needed for the new house online.

The Murphys are made up of 4 biological and 18 adopted children, most with Down syndrome and other special needs. On Aug. 19, they arrived at their brand new home, complete with adaptive therapy and safety features.

The house was donated thanks to fundraising by the Keenan’s Kids Foundation. More donations are needed to pay the home loan and keep the project going!

Want to learn more about the Murphys and how you can help this special family? Visit www.murphyhouseproject.com today!

December 2009 71 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.

John Bryan Achord Elizabeth White Calvert Milton H. Hutcheson Jr. Savannah, Ga. Savannah, Ga. Loganville, Ga. Admitted 1973 University of Georgia School Woodrow Wilson College of Law Died October 2009 of Law (1987) (1968) Admitted 1987 Admitted 1969 Richard Adam Bacon Died October 2009 Died September 2009 Peachtree City, Ga. University of Georgia School Kenneth L. Chalker Sr. Robert E. Lanyon of Law (1980) Kennesaw, Ga. Fort Valley, Ga. Admitted 1980 John Marshall Law School (1966) Mercer University Walter F. Died June 2009 Admitted 1966 George School of Law (1950) Died September 2009 Admitted 1949 Joseph R. Baker Died January 2009 Stockbridge, Ga. Joseph Quentin Davidson Jr. John Marshall Law School (1970) Panama City Beach, Fla. Thomas Edward Magill Admitted 1970 Mercer University Walter F. Atlanta, Ga. Died September 2009 George School of Law (1966) Tulane University Law School Admitted 1967 (1978) Charles F. Barnwell Sr. Died August 2009 Admitted 1978 Atlanta, Ga. Died October 2009 Emory University School of Law Brian F. Dorsey (1955) Marietta, Ga. Robert C. Montgomery Admitted 1954 Emory University School of Law Jonesboro, Ga. Died September 2009 (1977) John Marshall Law School (1966) Admitted 1977 Admitted 1966 Kenneth R. Brown Died May 2009 Died September 2009 Jonesboro, Ga. Woodrow Wilson College of Law Thurman E. Duncan John P. Nixon (1969) LaGrange, Ga. Warner Robins, Ga. Admitted 1970 Columbia University School Mercer University Walter F. Died August 2009 of Law (1949) George School of Law Admitted 1951 Admitted 1958 Althea Lorraine Buafo Died October 2009 Died October 2009 Macon, Ga. Mercer University Walter F. Clyde W. Eberhardt Dewey H. Prince George School of Law (1987) Roswell, Ga. San Rafael, Calif. Admitted 1987 John Marshall Law School (1947) University of Georgia School Died October 2009 Admitted 1947 of Law (1954) Died August 2009 Admitted 1955 Maureen Therese Buletti Died August 2009 Atlanta, Ga. Elliott Goldstein University of Georgia School Atlanta, Ga. Robert L. Sweezey of Law (2006) Yale Law School (1939) Ellicott City, Md. Admitted 2006 Admitted 1938 Georgia State University College Died November 2008 Died September 2009 of Law (1992) Admitted 1992 Died October 2009

72 Georgia Bar Journal Henry B. Troutman Jr. man. He was born and raised in his work with the State Bar of Hilton Head Island, S.C. Atlanta. Troutman graduated Boys Georgia, founding the Lawyers University of Georgia School High and attended the University Assistance Program which has of Law (1949) of Georgia, where he was the pres- been adopted by many states Admitted 1950 ident of Chi Phi fraternity. During across the nation. He had a dis- Died October 2009 his time at college, he enlisted in tinct zest for life and many pas- the Army, serving during World sions, primarily his love for peo- Hon. David J. Turner Jr. War II. After his service, he ple. He always made a point to Manchester, Ga. returned to the University of put others before himself. His Mercer University Walter F. Georgia School of Law, where he family and friends were especial- George School of Law (1967) met and married Mary Pringle. ly important to him and he never Admitted 1967 Troutman spent 30 years met a stranger. Troutman had a Died August 2009 working at the family law quick wit and wonderful sense of firm, Troutman-Sams, Schroder, humor, a love for fishing, crab- William Alford Wall Lockerman, which is known today bing and the water; and if he Athens, Ga. as Troutman Sanders LLP. After wasn’t at home resting with the University of Georgia School trying his hand at law for 30 years, dogs, he was off at the beach with of Law (1950) he and his wife opened the first sea his family. Admitted 1950 shell shop in Atlanta, which quick- Died September 2009 ly expanded into three retail stores RETRACTION and two wholesale outlets. From Henry B. Troutman Jr. there, he furthered his education In the October 2009 issue of was born in to become a chemical addictions the Georgia Bar Journal, attorney July 1923, the son counselor, working in many hospi- Richard Melvin Jones Jr. was of Henry Battey tals across the state of Georgia. erroneously reported as being Troutman Sr. and Troutman was a recipient of a deceased. The Journal apolo- Maggie Foote Trout- Lifetime Achievement Award for gizes for this mistake.

Memorial Gifts The Lawyers Foundation of Georgia furnishes the Georgia Bar Journal with memorials to honor deceased members of the State Bar of Georgia. A meaningful way to honor a loved one or to com- memorate a special occasion is through a tribute and memorial gift to the Lawyers Foundation of Georgia. An expression of sympathy or a celebra- Lawyers Foundation tion of a family event that takes the form of a gift to the Lawyers Foundation of Georgia provides a last- of Georgia Inc. ing remembrance. Once a gift is received, a written 104 Marietta St. NW acknowledgement is sent to the contributor, the sur- Suite 630 viving spouse or other family member, and the Georgia Bar Journal. Atlanta, GA 30303 Information P: 404-659-6867 For information regarding the placement of a memo- F: 404-225-5041 rial, please contact the Lawyers Foundation of Georgia at 404-659-6867 or 104 Marietta St. NW, Suite 630, Atlanta, GA 30303.

December 2009 73 Book Review

D-Day Japan: The Truth About the Invasion of Japan, Its War Crimes, and the Atomic Bomb by Senior Judge Dan Winn and General Raymond Davis Acclaim Press, 224 pages

reviewed by William L. Lundy

-Day Japan is a unique and factual book

written by the Hon. Dan Winn, senior D superior court judge of the Tallapoosa Judicial Circuit, and Gen. Raymond Davis. Both men fought in World War II, Winn as a fighter pilot in the

U.S. Marine Corps, and Davis, a Medal of Honor recipient, as assistant commandant, U.S. Marine Corps.

This book focuses on two aspects of the war against Japan in World War II that are either little known, misunderstood or misrepresented: (1) the high Allied and American cost in human life of a planned mainland Japan invasion and its relationship to the decision to drop the atomic bomb; and (2) the atrocities committed by Japan against the Chinese in the years leading up to and during World War II. We are now almost 65 years removed from the decision by President Harry Truman to use the atomic bomb against Japan, and revisionists/apologists in articles and speeches seek to rewrite history criticizing the United States and Truman for the decision to use the bomb. This book precisely dispels revisionist blam- ing of the United States. Winn and Davis, in painstaking detail and factual remarkable career as a fighter pilot certainly enhances support, recount the evidence as it truly existed from the reader’s interest. 1931 to 1945. Georgia attorney and judge Dan Winn Astoundingly, the Japanese killed some 30 million adds much flavor to this remarkable book by sharing Chinese and Southeast Asians from 1931 until his first-hand perspective of World War II. He is an the Japanese surrender in 1945. The facts pre- outstanding judge for our state, and learning of his sented demonstrated that the numbers are

74 Georgia Bar Journal accurate and details of atrocities during the island-hopping cam- end to the war with preservation of are true. Photographs and eye- paign through Iwo Jima, lives was a right and noble goal of witness accounts, as well as cen- Guadalcanal, Philippines, Gilbert President Truman. sored documents uncovered from Islands and Okinawa are grim the Japanese Imperial Army, reminders of the cost of taking William L. Lundy Jr. is reflect an investigation into the small islands occupied by the the senior partner in facts that would make any trial Japanese Imperial Army. The the law firm of Parker lawyer proud. Japanese fought to the death over and Lundy in The book discusses in detail the every inch of soil. A mainland Cedartown. He is a high cost of an invasion of mainland invasion would have been almost 1985 graduate of the Japan, set for Nov. 1, 1945. The unfathomable in human loss. United States actually had a This book is a must-read for any Cumberland School of Law of detailed invasion plan and date set World War II veteran (or relative of Samford University. Lundy has before the dropping of the atomic one) and for all Americans interest- served as chair of the bombs on Hiroshima and Nagasaki. ed in the atomic bomb issue and Investigative Panel for lawyer dis- The invasion plans are set out in the the truth about the end of World cipline and as chair of the General book along with casualty estimates, War II in the Pacific. It has been Practice and Trial Section of the which are quite chilling. endorsed by many groups: the State Bar. He is an executive com- Casualties would have been in Global Alliance to Preserve the mittee member of the Georgia the many hundreds of thousands History of World War II in Trial Lawyers Association and for Americans and in the hundreds Asia, the U.S. Marine Corps Workers’ Compensation of thousands for the Japanese, Coordinating Council of Greater Claimants’ Lawyers. Lundy is a including civilian and army per- Atlanta and many others. past president of the Tallapoosa sonnel. The book makes the case The factual presentation clearly that Truman’s decision actually makes the case for our use of the Judicial Circuit Bar Association. He saved lives and ended the war atomic bomb. As a country, we can has spoken at many seminars on with the preservation of life. This have a clear conscience in its strate- trial and mediation topics and is much is clear. American losses gic and humanitarian use. A swift licensed in Georgia and Alabama.

December 2009 75 CLE Calendar December-March

DEC 11 ICLE DEC 17 ICLE Section 1983 Litigation Collaborative Law Institute of Georgia Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours

DEC 11 ICLE DEC 17 ICLE ADR Institute and Neutrals’ Conference Health Care Fraud Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours DEC 17 ICLE DEC 11 ICLE Recent Developments New Lawyers Skills Training Atlanta, Ga. Statewide Broadcast—Live See www.iclega.org for location See www.iclega.org for locations 6 CLE Hours 6 CLE Hours DEC 18 ICLE DEC 11 ICLE Second Amendment Professional & Ethical Dilemmas Atlanta, Ga. Macon, Ga. See www.iclega.org for location See www.iclega.org for location 4 CLE Hours 3 CLE Hours DEC 18 ICLE DEC 14 NBI, Inc. Clarence Darrow Nuts and Bolts of Bankruptcy Law Atlanta, Ga. Savannah, Ga. See www.iclega.org for location 6 CLE Hours 6 CLE Hours

DEC 15 ICLE DEC 18 NBI, Inc. Selected Video Replay Complex Consumer Bankruptcy Issues Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location 6 CLE Hours 6 CLE Hours JAN 7 ICLE DEC 16 ICLE So Little Time, So Much Paper Selected Video Replay Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 3 CLE Hours 6 CLE Hours JAN 8 ICLE DEC 17 ICLE Trial Advocacy New Lawyers Skills Training Statewide Satellite Rebroadcast Statewide Broadcast—Replay See www.iclega.org for locations See www.iclega.org for location 6 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.

76 Georgia Bar Journal CLE Calendar

JAN 13 ICLE State Bar of Georgia Family Law Convocation of Professionalism 2010 Midyear Meeting Atlanta, Ga. CLE Opportunities See www.iclega.org for location 3 CLE Hours

JAN 14 ICLE JAN 7 Nuts and Bolts of Military Landlord and Tenant and Veterans Law Atlanta, Ga. 9 a.m. - 12 p.m. See www.iclega.org for location 3 CLE Hours 6 CLE Hours JAN 7 Casemaker Training JAN 14 ICLE 10 - 11 a.m. or 3 - 4 p.m. Art of Legal Reasoning 1 CLE Hour Atlanta, Ga. See www.iclega.org for location JAN 7 Risk Prevention in a Competitive 6 CLE Hours Legal Market 2 - 5 p.m. JAN 15 ICLE 3 CLE Hours with 1 Negotiated Corporate Acquisition Professionalism Hour* and 1 Ethics Atlanta, Ga. Hour See www.iclega.org for location 6 CLE Hours JAN 8 The Trial of Leo Frank (Video Replay) JAN 15 ICLE 9 a.m. - 12 p.m. Advanced Adoption Law 3 CLE Hours with 1 Statewide Satellite Broadcast—Live Professionalism Hour* and 2 Trial See www.iclega.org for locations Practice Hours 6 CLE Hours

JAN 15 ICLE JAN 9 Get a Job! Tips for the Unemployed Musante: Attacking the Experts and Underemployed Lawyer Atlanta, Ga. 1 - 4 p.m. See www.iclega.org for location 3 CLE Hours with 1 6 CLE Hours Professionalism Hour*

JAN 20-22 Prosecuting Attorneys’ Council Register online now for the of Georgia 2010 Fundamentals of Prosecution 2010 Midyear Meeting at Pine Mountain, Ga. 15 CLE Hours www.gabar.org.

JAN 21 Lorman Education Services Economic Development Financing *Professionalism credit is self-reporting, Atlanta, Ga. using the optional self-report form. 6 CLE Hours

December 2009 77 CLE Calendar December-March

JAN 21 ICLE JAN 31-FEB 3 ICLE Advanced Adoption Law Update on Georgia Law Statewide Satellite Rebroadcast Steamboat, Co. See www.iclega.org for locations See www.iclega.org for location 6 CLE Hours 12 CLE Hours

JAN 22 ICLE FEB 4 ICLE Winning Settlement Demand Packages Electronic Discovery Statewide Satellite Broadcast—Live Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for location 6 CLE Hours 6 CLE Hours

JAN 22 ICLE FEB 4 ICLE White Collar Crime Complete Legal Negotiator Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours

JAN 28 ICLE FEB 4 NBI, Inc. Winning Settlement Demand Packages Drafting LLC Agreements Statewide Satellite Rebroadcast Atlanta, Ga. See www.iclega.org for locations 6 CLE Hours 6 CLE Hours FEB 5 ICLE JAN 28 ICLE Abusive Litigation Start Ups and Early Stage Companies Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours FEB 5 ICLE JAN 29 ICLE Secured Lending Georgia Foundations & Objections Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours FEB 5 ICLE JAN 29 ICLE License Revocation & Suspension Recent Developments Statewide Satellite Broadcast—Live Statewide Satellite Rebroadcast See www.iclega.org for locations See www.iclega.org for locations 6 CLE Hours 6 CLE Hours FEB 5 ICLE Georgia Auto Insurance Savannah, 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.

78 Georgia Bar Journal CLE Calendar

FEB 10 The Seminar Group FEB 13 The Seminar Group Construction Defects and Distressed Wetlands and Water Law Properties Atlanta, Ga. Atlanta, Ga. 10.3 CLE Hours 6 CLE Hours FEB 17 The Seminar Group FEB 10 NBI, Inc. Solar Power—Projects and Permitting Real Property Foreclosure— Atlanta, Ga. A Step-by-Step Workshop 6.5 CLE Hours Atlanta, Ga. 6 CLE Hours FEB 18 ICLE Residential Real Estate FEB 11-12 ICLE Statewide Satellite Rebroadcast Social Security Law See www.iclega.org for locations Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 9 CLE Hours FEB 18 ICLE Soft Tissue Injury FEB 11 ICLE Atlanta, Ga. License Revocation & Suspension See www.iclega.org for location Statewide Satellite Rebroadcast 6 CLE Hours See www.iclega.org for locations 6 CLE Hours FEB 18 ICLE Elder Law FEB 11 ICLE Atlanta, Ga. Jury Trial See www.iclega.org for location Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 6 CLE Hours FEB 19 ICLE Banking Law FEB 12 ICLE Atlanta, Ga. Residential Real Estate See www.iclega.org for location Statewide Satellite Broadcast—Live 6 CLE Hours See www.iclega.org for location 6 CLE Hours FEB 19 ICLE Advanced Debt Collection FEB 12 ICLE Statewide Satellite Broadcast—Live Georgia Auto Insurance See www.iclega.org for locations Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 6 CLE Hours FEB 19 ICLE Criminal Practice FEB 12-13 ICLE Kennesaw, Ga. Estate Planning Institute See www.iclega.org for location Athens, Ga. 6 CLE Hours See www.iclega.org for location 9 CLE Hours

December 2009 79 CLE Calendar December-March

FEB 22 ICLE FEB 27 ICLE Beginning Lawyers Bar Media Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours

FEB 23-24 ICLE MAR 4 ICLE Collaborative Law Institute Fundamentals of Health Care of Georgia (CLIG) Training Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 12 CLE Hours MAR 4 ICLE FEB 25 ICLE Product Liability Institute Advanced Debt Collection Atlanta, Ga. Statewide Satellite Rebroadcast See www.iclega.org for location See www.iclega.org for locations 6 CLE Hours 6 CLE Hours MAR 5 ICLE FEB 25 ICLE Premises Liability Advanced Patent Cooperation Treaty Statewide Satellite Broadcast—Live (PCT) Law See www.iclega.org for location Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 6 CLE Hours MAR 5 ICLE Effective Jury Selection FEB 25 ICLE Atlanta, Ga. Legal Technology Show & Tell See www.iclega.org for location Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 6 CLE Hours MAR 5 ICLE Proving Damages FEB 26 ICLE Atlanta, Ga. Employers’ Duties & Problems See www.iclega.org for location Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 6 CLE Hours MAR 9 ICLE Workouts, Turnarounds FEB 26 ICLE & Restructurings Georgia Appellate Practice Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 4 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.

80 Georgia Bar Journal CLE Calendar

MAR 11 ICLE MAR 16 ICLE Premises Liability Selected Video Replay Statewide Satellite Rebroadcast Atlanta, Ga. See www.iclega.org for locations See www.iclega.org for location 6 CLE Hours 6 CLE Hours

MAR 11 ICLE MAR 16 ICLE Metro City & County Attorneys Traumatic Brain Injury Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours

MAR 11 ICLE MAR 17 ICLE Mediation Advocacy Aviation Law Atlanta, Ga. Atlanta, Ga. See www.iclega.org for location See www.iclega.org for location 6 CLE Hours 6 CLE Hours

MAR 11-13 ICLE MAR 18 ICLE General Practice & Trial Institute Workers’ Comp. for the General Amelia Island, Fla. Practitioner See www.iclega.org for location Atlanta, Ga. 12 CLE Hours See www.iclega.org for location 6 CLE Hours MAR 12 ICLE Trial and Error MAR 18 ICLE Atlanta, Ga. Employment Law See www.iclega.org for location Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 6 CLE Hours MAR 12 ICLE Post Judgment Collection MAR 18 ICLE Atlanta, Ga. Professionalism & Ethics Update See www.iclega.org for location Statewide Satellite Rebroadcast 6 CLE Hours See www.iclega.org for locations 2 CLE Hours MAR 12 ICLE Professionalism & Ethics Update MAR 19 ICLE Statewide Satellite Broadcast—Live Basic Fiduciary Practice See www.iclega.org for locations Statewide Satellite Broadcast—Live 2 CLE Hours See www.iclega.org for locations 6 CLE Hours MAR 15 ICLE Selected Video Replay MAR 19 ICLE Atlanta, Ga. Entertainment Law Boot Camp See www.iclega.org for location Atlanta, Ga. 6 CLE Hours See www.iclega.org for location 6 CLE Hours

December 2009 81 Notices

Notice of Withdrawl of Proposed Formal Advisory Opinion Withdrawal of Proposed the June 2009 issue of the Georgia Bar Journal for 2nd Formal Advisory Opinion Request No. 06-R1 publication. The Notice, published along with the proposed opinion, indicated the proposed opinion would Members of the State Bar of Georgia are hereby be filed with the Supreme Court of Georgia on or after NOTIFIED that the Formal Advisory Opinion Board June 15, 2009. has WITHDRAWN Proposed Formal Advisory Opinion Request No. 06-R1 effective Sept. 17, 2009. Following its publication, but prior to it being This proposed opinion (also referred to as Formal filed with the Supreme Court, the Formal Advisory Advisory Opinion No. 09-1), originally scheduled to be Opinion Board reconsidered Proposed Formal filed with the Supreme Court of Georgia on or after Advisory Opinion No. 06-R1. Upon further review, June 15, 2009, will not be filed. the Formal Advisory Opinion Board has decided to withdraw the proposed opinion. No formal adviso- Pursuant to Rule 4-403(d) of the Rules and ry opinion addressing the issues raised in the Regulations of the State Bar of Georgia, Proposed request will be drafted by the Formal Advisory Formal Advisory Opinion No. 06-R1 was published in Opinion Board.

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

Pursuant to 28 U.S.C. §§ 2071(b), notice and oppor- website at www.ca11.uscourts.gov. A copy may also be tunity for comment is hereby given of proposed obtained without charge from the Office of the Clerk, amendments to the Rules of the U.S. Court of Appeals U.S. Court of Appeals for the Eleventh Circuit, 56 for the Eleventh Circuit. Forsyth St., NW, Atlanta, GA 30303 (phone: 404-335- 6100). Comments on the proposed amendments may A copy of the proposed amendments may be be submitted in writing to the Clerk at the above obtained on and after Dec. 1, 2009, from the court’s address by Dec. 31, 2009.

Proposed Experimental Superior Court Rule for Cobb Judicial Circuit The Superior Court Judges of the Cobb Judicial have any comments on the proposed experimental Circuit have approved a proposed experimental supe- rule, please submit them in writing to the Council of rior court rule regarding limited scope of representa- Superior Court Judges at 18 Capitol Square, Suite 104, tion in civil cases. A copy of the proposed experimen- Atlanta, GA 30334 or fax them to 404-651-8626. To be tal rule may be found at the website of the Council of considered, comments must be received by Monday, Superior Court Judges at www.cscj.org. Should you Jan. 18, 2010.

82 Georgia Bar Journal Classified Resources

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December 2009 83 Classified Resources

Deposition Consulting: I consult with attorneys case load. Trial experience a must. Need associate regarding depositions of CPAs and provide general immediately. Excellent growth potential. Contact itigation support regarding financial and [email protected]. accounting information. Greg DeFoor, CPA, CFE. [email protected]. 770-579-9558. An AV rated, national collections law firm is seeking www.winslettdefoorcpas.com. an experienced collections lawyer to assist the firm as it expands its practice into Georgia. The attorney must RUNNING FOR JUDGE? Professional campaign assis- have collection litigation experience and must be self- tance can help put you on the bench. Judicial Campaign sufficient, organized and motivated. Please send all Consultants provides strategic planning, media consult- resumes to [email protected]. ing and graphic design. We have decades of experience winning elections. Call us today at 586-764-9783 or visit CLE Seminars us at www.JudicialCampaignConsultants.com. Immigration Law Seminar. Basic. Intensive. Practical. Competent. Serve your clients and make money. Position Wanted Practice/procedure, regular/contested cases, case Law firm seeking associate with 2-3 years of litigation management, billing, client generation/retention. experience. Candidate must be capable of handling a Growth area of law—especially if immigration law case from start to finish with minimal oversight, pre- reform passes! April 5 - 9, 2010, in Des Moines, pare for trial, try cases and generally manage his or her Iowa. Website MidWestLegalimmigrationProject.com; e-mail: [email protected]; phone 515-271-5730. Advertisers Index AAA Attorney Referral Service...... 35 Arthur T. Anthony...... 53 Atlanta Age Management ...... 75 B2B CFO...... 53 BPC ...... 15, 47 Buddenhagen and Associates ...... 65 Cartridge World ...... 23 Daily Report ...... 53 Daniels-Head Insurance ...... 69 Decosimo ...... 59 Gallery 63...... 55 Georgia Lawyers Insurance Program...... IFC Georgia Mediators ...... 41 Gilsbar ...... 31 Guaranteed Subpeona ...... 61 Imbordino Polygraph Examinations...... 9 Intelligent Office...... 49 YLD Annual Fundraiser Keenan’s Kids Foundation...... 71 Marsh...... 59 Saturday, Jan. 9 Mitchell Kaye Valuation ...... 53 Norwitch Document Laboratory ...... 65 8 p.m. – 12 a.m. PS Finance...... IBC SoftPro Corporation ...... 49 Visit www.gabar.org South Georgia ADR ...... 29 for registration information. Suntrust ...... 5 Warren R. Hinds ...... 51 West, A Thomson Business ...... BC

84 Georgia Bar Journal

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