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AA SliceSlice ofof LifeLife For English, press 1.

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For a real live person, call Georgia Lawyers.

A heartbeat and a pulse. Isn’t that the least you should require of your professional liability insurance provider? Aubrey Smith, president of Georgia Lawyers Insurance Company, thinks so. But then again, he remembers a time when it would have been absurd to think that a lawyer could work with someone he’d never met face to face. Yet today, it happens all the time. Well, not at Georgia Lawyers. You see, we believe that if you ever have a problem, question or concern, you should be able to call a person and not a switchboard. “Please leave a message at the sound of the beep,” is no way for you to get to know the person who may one day hold your career in his hands. Currently, we have personally met over 90% of our policy holders. Our promise is to provide a level of personal service you can’t receive anywhere else, especially during the quote process. But don’t take our word for it, call our office, we’ll be happy to provide references. If you’re ready for a different kind of insurance experience and a free policy review, or a “Quick Quote,” call Aubrey Smith or any member of the Georgia Lawyers team at: 770-486-3435 or toll-free, 866-372-3435. Visit us online at: www.GaLawIC.com. State Bar of Georgia We’re here for you!

Law Practice Management Program The Law Practice Management Program is a member service to help all Georgia lawyers and their employees put together the pieces of the office management puzzle. Whether you need advice on new computers or copiers, personnel issues, compensation, work- flow, file organization, tickler systems, library materials or software, we have the resources and training to assist you. Feel free to browse our online forms and article collections, check out a book or videotape from our library, or learn more about our on-site management consultations and training sessions. Consumer Assistance Program The Consumer Assistance Program has a dual purpose: assistance to the public and attorneys. CAP responds to inquiries from the public regarding State Bar members and assists the public through informal methods to resolve inquiries which may involve minor violations of disciplinary standards is by attorneys. Assistance to attorneys is of equal importance. CAP assists attorneys as much as possible with referrals, educational materials, sugges- help onlya tions, solutions, advice and preventive information to help the attorney with consumer matters. The program pledges its best efforts to assist attorneys in making the practice of law more efficient, ethical and professional in nature. call, Lawyer Assistance Program This free program provides confidential assistance to Bar members whose personal problems may be or interfering with their ability to practice law. Such problems include stress, chemical dependency, fam- click ily problems and mental or emotional impairment. Fee Arbitration The Fee Arbitration program is a service to the general public and lawyers of Georgia. It provides a e-mail convenient mechanism for the resolution of fee disputes between attorneys and clients. The actual arbitration is a hearing conducted by two experienced attorneys and one non-lawyer citizen. Like judges, they hear the arguments on both sides and decide away. the outcome of the dispute. Arbitration is impartial and usually less expensive than going to court.

404.527.8700  800.334.6865  www.gabar.org AAuguggustust 22000004 mmbmberer 2

Legals 10 Timber! — Falling Tree Liability in Georgia By David J. Burge On the Cover Take a look into the lives of 11 18 Considering the Consideration Approach to Classifying Georgia lawyers practicing in Georgia Contracts In Partial Restraint of Trade different areas, page 33. By John K. Larkins Jr. Pictured on cover, left to right, Bettina Wing-Che Yip, Features Stanley A. Seymour, Laquetta S. Pearson and Bertis Downs. 26 The 2003 Amendment to the Georgia Class Action Statute: Background photo, Michael A New Day for Georgia Class Actions? Landau. By Corliss Lawson and Paul Kim 33 A Slice of Life: The Daily Practice of 11 Georgia Lawyers Departments By Johanna B. Merrill and Sarah I. Bartleson 4 From the President 42 Standing Up for the Legal Profession 6 From the Executive Director By Judge Toby Prodgers 8 From the YLD President 47 Ode to The First Georgia Colonel By Arthur A. Morrison 56 Bench & Bar 50 Notice of Expiring BOG Terms 60 Office of the General Counsel 52 The Thomas County Courthouse at Thomasville: 61 Lawyer Discipline The Grand Old Courthouses of Georgia 63 Law Practice Management By Wilber W. Caldwell 68 Pro Bono 54 Project “Legal Lives” 2004: Fulton DA Schools Elementary 70 Section News Students on Law and Order 71 Professionalism Page By Lyn Vaughn Vann 73 In Memoriam 75 Book Review 77 Anecdotal Evidence 79 CLE Calendar 83 Notices 87 Advertisers Index 88 Classified Resources Editorial Board Marcus David Liner Quick Dial Editor-in-Chief Attorney Discipline (800) 334-6865 Scott Fain Bertschi Sarah Howard Lamar ext. 720 Bill Bost E. Peyton Nunez (404) 527-8720 Consumer Assistance Program (404) 527-8759 Donald Paul Boyle Jr. Stephanie Ann Paulk Conference Room Reservations (404) 527-8712 Erin Reynolds Chance Cynthia B. Smith Fee Arbitration (404) 527-8750 Charles Madden Cork III Robert R. Stubbs CLE Transcripts (404) 527-8710 Lynda Carney Crum Kristin H. West Diversity Program (404) 527-8754 ETHICS Hotline (800) 682-9806 Bridgette Elizabeth Eckerson Pamela Y. White-Colbert (404) 527-8741 John Michael Gross Scott Wright Georgia Bar Foundation/IOLTA (404) 588-2240 Jennifer Carpenter Kane Georgia Bar Journal (404) 527-8736 Lawyer Assistance Program (800) 327-9631 Advisors Lawyers Foundation of Georgia (404) 659-6867 Law Practice Management (404) 527-8772 Theodore Harris Davis Jr. Membership Records (404) 527-8777 Rebecca Ann Hoelting Meetings Information (404) 527-8790 D. Scott Murray Pro Bono Project (404) 527-8763 Marisa Anne Pagnattaro Professionalism (404) 225-5040 Sections (404) 527-8774 Editors Emeritus Unauthorized Practice of Law (404) 526-8603 Young Lawyers Division (404) 527-8778 Rebecca Ann Hoelting, 02-04 Charles R. Adams III, 89-91 Marisa Anne Pagnattaro, 01-02 L. Dale Owens, 87-89 Manuscript Submissions D. Scott Murray, 00-01 Donna G. Barwick, 86-87 The Georgia Bar Journal welcomes the submission of William Wall Sapp, 99-00 James C. Gaulden Jr., 85-86 unsolicited legal manuscripts on topics of interest to the Theodore H. Davis Jr., 97-99 Jerry B. Blackstock, 84-85 State Bar of Georgia or written by members of the State L. Brett Lockwood, 95-97 Steven M. Collins, 82-84 Bar of Georgia. Submissions should be 10 to 12 pages, double-spaced (including endnotes) and on letter-size Stephanie B. Manis, 93-95 Walter M. Grant, 79-82 paper. Citations should conform to A UNIFORM SYSTEM William L. Bost Jr., 91-93 Stephen E. Raville, 77-79 OF CITATION (17th ed. 2000). Please address unsolicited articles to: Marcus David Liner, State Bar of Georgia, Officers of the State Bar of Georgia Communications Department, 104 Marietta St. NW, Rob Reinhardt President Suite 100, Atlanta, Ga., 30303. Authors will be notified Robert D. Ingram President-elect of the Editorial Board’s decision regarding publication. Gerald M. Edenfield Secretary The Georgia Bar Journal welcomes the submission of J. Vincent Cook Treasurer news about local and circuit bar association happen- ings, Bar members, law firms and topics of interest to William D. Barwick Immediate Past President attorneys in Georgia. Please send news releases and Laurel Payne Landon YLD President other information to: C. Tyler Jones, Director of Damon E. Elmore YLD President-elect Communications, 104 Marietta St. NW, Suite 100, Andrew W. Jones YLD Past President Atlanta, Georgia 30303; phone: (404) 527-8736; [email protected]. Communications Committee S. Kendall Butterworth Chairperson Disabilities Aasia Mustakeem Vice-Chairperson If you have a disability which requires printed materials in alternate formats, please contact the ADA Communications Staff coordinator at (404) 527-8700 or (800) 334-6865. C. Tyler Jones Director Sarah I. Bartleson Assistant Director Headquarters Daniel L. Maguire Administrative Assistant 104 Marietta St. NW, Suite 100 Atlanta, GA 30303 Publisher’s Statement (800) 334-6865 (404) 527-8700 FAX (404) 527-8717 Visit us on the Internet at www.gabar.org. The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (bi-monthly) by the State Bar of Georgia, 104 Marietta St. NW, Suite 100, South Georgia Office Atlanta, Georgia 30303. © State Bar of Georgia 2004. One copy of each 244 E. Second St. (31794) P.O. Box 1390 issue is furnished to members as part of their State Bar dues. Tifton, GA 31793-1390 Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage (800) 330-0446 (229) 387-0446 paid in Atlanta, Georgia and additional mailing offices. Opinions and con- FAX (229) 382-7435 clusions expressed in articles herein are those of the authors and not necessarily those of the Editorial Board, Communications Committee, Officers or Board of Governors of the State Bar of Georgia. Advertising rate card will be furnished upon request. Publishing of an advertisement does not imply endorsement of any product or service offered. POSTMASTER: Send address changes to same address. Mentoring: Georgia Lawyers Must Meet the Challenge By Rob Reinhardt initiative from the outset. n Aug. 19, your Professional conduct has many President dimensions: civil communication, By Rob Reinhardt Board of Governors truthful and full disclosure and fair made an investment dealing. The Committee wrestled O with many formidable threshold in the improvement of the profes- issues—one of the most challenging being crafting a program that would sion. It adopted, and agreed to fund work. Some lawyers and educators and recommend to the Supreme advocated a clinical program involving mandatory internships. from the Court of Georgia, a mandatory Others suggested that professional mentoring program that was devel- conduct, like personal character, cannot be taught—you were either oped by the State Bar’s “Standards born with it or you were not, and our Bar should commit to handling of the Profession” Committee. The unprofessional lawyers through our program presents great promise as disciplinary system. “The ‘Standards’ The result of eight years of work a vehicle for focusing attention on came before your Board in Atlanta. program will ensure The plan for implementation has professionalism at the outset of a that an inexperienced been painstakingly designed. In lawyer’s career. But the initiative broad brush, the program is lawyer need not anchored in the dual concept of spe- carries an element of risk; and the cialized training reinforced by indi- negotiate the briar vidual mentoring. During the initial risk troubles me. patch that challenges 12 months of practice, beginning The genesis of the program can be lawyers will be matched with expe- professional behavior traced to 1996 and a concern among rienced lawyers while they attend the leaders of our Bench and Bar as 12 hours of CLE programming that without the counsel to the deterioration of professional introduce basic aspects of law prac- conduct in the practice of law. At the tice. Moreover, the training antici- of an experienced request of then-President Ben pated by the program is not limited veteran.” Easterlin, John Marshall undertook to mentees. An ambitious education to quarterback a talented team of program has also been designed for lawyers assembled to engineer a mentors to aid them in counseling program to effectively preserve and professionalism in the context of the promote professional conduct practice of law. among members of the Bar. Sally We face no risk attributable to Lockwood and the Chief Justice’s the design of the program. The risk Commission on Professionalism is that we as Georgia lawyers may- have been an important part of this fail to realize the promise of the

4 Georgia Bar Journal program by uneven and insuffi- ulation of the system. The truth is account or promoting their busi- cient commitment. the pressures of modern law prac- ness. My prediction is your efforts The “Standards” project has been tice have fogged our focus on pro- will ratchet up your professional- fascinating to me from the outset. fessional conduct. Most lawyers ism alert level. How do you teach an intangible want to do what is right. But we all The synergy of all of us march- like professional conduct? The operate under such intense pres- ing in the same direction will fulfill truth that our “Standards” archi- sure that it is hard to find time to the promise of the program. Your tects recognized is that professional devote adequate attention to legal determination to make our conduct is not taught by lecture but issues—much less professionalism “Standards” program successful by example. Lawyers learn the issues. Ask yourself how much will communicate to lawyers enter- expectation of professional conduct time you spend discussing profes- ing the profession our commitment by facing that expectation from sional conduct with lawyers in to conduct worthy of a noble pro- practicing lawyers. Lawyers learn your firm or bar association fession. By endorsing professional- to practice professional conduct by (younger and older). Is it apparent ism, we preserve for our successors watching practicing lawyers exhib- that professional conduct is impor- the great heritage of Georgia it professional conduct. And it is a tant in your law practice, or do con- lawyers. Without our unstinting situational and anecdotal pilgrim- temporaries or associates working support, “Standards” could sunset age. The “Standards” program will with you have the impression that in three years (the penalty for inef- ensure that an inexperienced you are out to win at all costs? fective operation built into the pro- lawyer need not negotiate the briar Would you be comfortable explain- posal). That result will diminish patch that challenges professional ing your professional tactics to the profession and all of us who are behavior without the counsel of an your parents or your children? proud of it. experienced veteran. The easiest response to our The resolution adopted by the My challenge to you is to make “Standards” program—and one I Board of Governors, as well as the the program work. Professionalism fear too many of us at the Bar will anticipated rule changes, will be is on the problem list of bar associ- take—is that the problem does not published in the December issue ations across the country. Georgia affect us and we don’t have time to of the Bar Journal. Following a 30 is characteristically in the forefront participate in the solution. But our day comment period, the rule of those bar associations that have profession will be enhanced and all changes will be proposed for determined to mount an aggressive of us will enjoy the reflected bene- adoption by the Court. The reso- response. But for the “Standards” fit of a professional bar if we lution and plan of implementa- program to work, we as Georgia engage and support this program. tion also appears on the Bar’s lawyers have to fall in behind it. The groundwork has been done for Web site. I invite your close atten- We all lament the conduct of us, and it has been done well. But tion directed through the commu- lawyers observed to conduct the the problem is endemic and the nication medium of your choice. practice in a manner that brings no cure demanding. So our crossroads Your Board of Governors invest- honor to any of us. But I notice that at the beginning of 2005 will be to ed in this program with the confi- we also tend to think unprofession- decide we are determined this pro- dence that Georgia lawyers al conduct is conduct practiced by gram will succeed and to collateral- would greet the challenge with someone else. Experienced lawyers ize that decision with a commit- resolve. It endorsed the direction complain that young lawyers con- ment to insist on professional con- charted for us by our “Standards” sider effective law practice to be a duct from ourselves and all that are committee; and I share the confi- “scorched earth” approach to liti- admitted before the Bar. Serve as a dence of your board that this pro- gation and reminisce about the col- mentor. Share your experience on gram will inspire us to improve legiality of the Bar in years gone how difficult situations should be the profession. I encourage you to by. Young lawyers complain that resolved. Help lawyers understand keep professionalism high on experienced lawyers take advan- as they spin up into the practice your list of priorities—and I need tage of that experience by unfair that professional conduct is as your encouragement to keep it delay, ex parte contact and manip- important as setting up a trust high on mine.

October 2004 5 Be Sure to Take Advantage of New Member Benefits By Cliff Brashier

For after-hours and weekend isiting the Bar Center, event parking, when the deck is open, members need to show their the home of all State Bar of Georgia membership Georgia lawyers, card upon arrival at the deck. V Parking is on a first-come, first- Executive Director recently became a lot easier. After served basis. Keep in mind that all the unexpected hurdles, the 500- the public will also be parking on a fee basis. Members should call space Bar Center parking deck is the Bar to find out if the parking deck will be open after hours for now available for use. specific events. Although there is still some work It is important to note that Bar to be done on the Spring Street members cannot transfer their park- entrance and exit, Bar members are ing privileges to friends, family from the welcome to utilize the parking deck, members or employees. With the with few exceptions. The major exception of Bar members, Bar staff, exception is space availability, tenants and layperson committee because there are more than 35,000 members, all visitors to the parking “It is important to members and only 500 available deck must pay upon leaving. Subject note that Bar spaces, the Board of Governors has to availability, non-member guests outlined ground rules for its use. are offered parking at market rates. members cannot During business hours (6:30 a.m. Now that the parking deck is to 8 p.m.) all Bar members visiting complete, I want to remind you transfer their or using the Bar Center or visiting about another exciting member downtown for other business or benefit that is slated to be avail- parking privileges social purposes may park free of able Jan. 1, 2005—Georgia charge. The Bar’s receptionists on Casemaker. For those of you not to friends, family either the first or third floor will be familiar with Casemaker, it is an happy to validate your ticket. online law library that provides members or Because there are a limited number Bar members with free access to of parking spaces, free parking can- the legal research materials need- employees.” not be provided for lawyers who ed to serve your clients. With a work in other downtown buildings. powerful combination of state Other than availability, this is the and federal materials, the State only exception to free parking. Bar’s Casemaker library puts the

6 Georgia Bar Journal When Casemaker is made available to mem- for the successful practice of law. When Casemaker is made bers, there will be a full-time Casemaker available to members, there will be a full-time Casemaker expert expert on staff to answer any questions on staff to answer any questions members may have about using members may have about using or accessing or accessing this unique member benefit. This staff member will this unique member benefit. conduct CLE training seminars information you need at your (Alabama, Colorado, Connecticut, on using Casemaker, as well as, fingertips. As a State Bar of Idaho, Indiana, Maine, Mass- upon request, travel to local bars Georgia member, your use of achusetts, Michigan, Mississippi, to offer onsite training. Casemaker is unlimited, 24 Nebraska, New Hampshire, North Your thoughts and suggestions hours a day. The cost is included Carolina, Ohio, Oregon, Rhode are always welcome. My telephone in your annual dues, so there Island, South Carolina, Texas, Utah numbers are (800) 334-6865 (toll will be no other fees. and Vermont), the State Bar of free), (404) 527-8755 (direct dial), Like the other state bars, which Georgia seeks to provide members (404) 527-8717 (fax) and (770) 988- make up the Casemaker Consortium with the best tools and advantages 8080 (home). Georgia Casemaker: An Overview on What Georgia Lawyers Can Expect

Although you’ve heard a lot Massachusetts, Mississippi, Neb- cent of lawyers’ research needs 90 about Georgia Casemaker, which raska, New Hampshire, North percent of the time. In my opinion, will be available Jan. 1, 2005, the Carolina, Ohio, Oregon, Rhode no association—bar or otherwise— Board of Governors thought it Island, South Carolina, Texas, Utah has provided members with a bet- would be a good idea to provide and Vermont. A host of other states ter benefit than Casemaker.” some background and an overview are currently considering member- Online legal research tools are of what you can expect. ship in the Casemaker Consortium. not new. Several companies—like Casemaker, which was launched According to Denny Ramey, West and Lexis—offer online legal by the Ohio State Bar Association in executive director of the Ohio State research products. The problem is 1998, is a unique online legal Bar Association, founding member that those services are expensive, research tool with a powerful search of the Casemaker Consortium, “The whereas Casemaker can meet engine providing access to a combi- Consortium is a win-win concept, many of our members’ research nation of state and federal materials. because each member bar shares its requirements. And where lawyers Casemaker includes historic to cur- library with all the other member need more than what Casemaker rent cases, statutes, and regulations. bars. It levels the playing field for offers, they can start out in In Ohio, for example, it also the 60 to 70 percent of lawyers who Casemaker—at no additional includes a comprehensive set of jury are sole practitioners or who prac- charge because it is included in instructions. Review the list of cases tice in firms of five or fewer their bar association member- to be included in Georgia’s library at lawyers—many of whom cannot ship—then move to pay-per-use http://www.gabar.org/pdf/Case afford to subscribe to other online services to expand their search. maker_Library.pdf. legal research services. Large firms For additional information The Casemaker Consortium repre- also benefit, realizing a cost savings about Georgia Casemaker, contact sents nearly 350,000 lawyers who are when they ask their lawyers to use State Bar of Georgia Executive state bar association members in 19 Casemaker before turning to more Director Cliff Brashier at (404) 527- states: Alabama, Colorado, Connect- expensive tools. The goal of 8755 or (800) 334-6865 or e-mail icut, Georgia, Idaho, Indiana, Maine, Casemaker is to take care of 90 per- [email protected].

October 2004 7 The YLD — Serving Young Lawyers from Around the State By Laurel Payne Landon

an opportunity for service to young President hat a wonder- lawyers from Ringgold to Bainbridge, from Toccoa to fully diverse Brunswick, from Atlanta to Twin state we live in. City. This year, we are making a W concerted effort to include those I grew up in Ringgold, Ga., located young lawyers outside of Atlanta in YLD YLD committees, business meetings in the foothills of northwest and other activities. Almost all YLD committee meetings will be accessi- Georgia between Dalton and ble by conference call so that those Chattanooga. I lived there until I who cannot attend the meeting in person can participate without los- moved to Athens to attend college ing an entire day of work. Business meetings are being held at different and law school. locations around the state so that from the Athens is such a vibrant place, most young lawyers can easily combining a small-town feel with drive to the meetings. We are also world-class culture. I lived in planning other activities to take “The YLD is com- Savannah for two years while clerk- place outside of metro Atlanta. prised of lawyers ing. Is there any city more beautiful In making these efforts, howev- than Savannah in the springtime? er, we cannot forget that the major- from all over the Augusta is now my home, a city full ity of young lawyers in the state of wonderful people and a special live and practice in metro Atlanta. state and beyond. golf tournament that brings the world We must continue to provide qual- We are here to pro- to our home every year. ity programs and opportunities for I have never lived in Atlanta, but service to Atlanta’s young lawyers, vide services to and I have always considered it my who comprise a large percentage of an opportunity for home as well. When I was young, the active membership of the YLD. we would go to Atlanta for a Braves We have all heard of the “two service to young game or a shopping weekend. Georgias”—Atlanta and everywhere Many of my college and law school else. I don’t like that term. We live in lawyers from friends grew up in Atlanta and have one Georgia, and we have great citi- Ringgold to returned there. I go there often now zens and great lawyers all around for work and other professional our state. Whether you live and Bainbridge, from activities. When you enter the city practice in metro Atlanta or in some limits, you can feel the energy and other city or small town, the YLD is Toccoa to Brunswick, history of this great city. relevant to you and your practice. from Atlanta to The YLD is comprised of lawyers Join a committee and attend a busi- from all over the state and beyond. ness meeting and find out how you Twin City.” We are here to provide services and can become involved.

8 Georgia Bar Journal

Timber! – Falling Tree Liability in Georgia

orests have always played a very important role in the history, econo-

my and environment of Georgia. Forestry is and will remain an import By David J. Burge Findustry in rural Georgia. Trees also play an important role in Georgia’s cities: Savannah streets are framed by great live oaks and Atlanta is known as a

city within a forest. Given the adage that “what goes up must come down”

inevitably applies to trees, Georgia courts have increasingly had to address liabil-

ity for casualties caused by falling trees. Under Georgia law, tort liability for falling

trees depends upon the location of the tree and whether the landowner has, or

should have, noticed that the tree was unsafe. An important distinction is drawn

based on the location of the tree. A higher standard of care is required of a

landowner in an urban area than is required of a rural landowner. Most Georgia

property owners are probably unaware of the liability risks that are literally grow-

ing on their property. Georgia lawyers would be doing a valuable service to their

clients by advising them of this potential area of liability.

TREES LOCATED ON RURAL LAND Georgia trespass law has long respected the sanctity of property boundary lines.1 For example, trespass can occur if any artificial object crosses a boundary line without the permission of the landowner.2 The person responsible for the tres- passing artificial object can be held liable for all property damage and personal injury caused by the wayward object, even if that person does not cross the property boundary himself.3 Trees, however, are naturally occurring objects and are considered part of the realty itself.4 As such, trees that fall over property lines are treated under very different rules of liability. Georgia law regarding liability for falling trees from privately owned property was first articulated in Cornett v. Agee.5 The Cornett court explained that, traditionally, liability for falling trees in rural areas was governed by the common-law principle that a rural landowner is “under no affirmative duty to remedy conditions of purely natural origin,” even if the conditions “may be highly dangerous or inconvenient” to adjoining landowners.6 This rule regarding owner liability for natural conditions on rural land was articulated by the Georgia Supreme Court in Roberts v. Harrison,7 in which a landowner was sued in nuisance for accumulations of water on his land that were claimed to have emitted “noxious and deleterious

10 Georgia Bar Journal gases injurious to the public landowner has actual notice of a and not the normal usual latent health” of adjacent landowners. hazardous condition on the land, micro-non-visible accumulative The Roberts court held that if the the landowner can become liable decay.”15 In essence, the landown- landowner had not contributed to for damages arising from the con- er is not burdened with a “duty to the nuisance by his own act, the dition.12 Under current law, a rural consistently and constantly check owner could not be held liable.8 landowner is not required to all trees for non-visible rot,” Regardless of the ease with which inspect the land to make sure that because “the manifestation of the owner could have cured the every tree is safe.13 However, if a decay must be visible, apparent, nuisance, in comparison with the rural landowner has actual notice and patent so that one could be harm the ongoing nuisance caused, that a particular tree poses a dan- aware that high winds might com- the owner was not liable for the ger to a neighbor or to the public, bine with visible rot and cause nuisance because it arose from nat- the owner must take affirmative damage.”16 The urban landowner ural causes.9 According to the steps to remedy that hazard.14 is liable for injuries caused by a Cornett court, this “rule of nonlia- falling tree only if the landowner bility for natural conditions” was, TREES LOCATED knew or reasonably should have historically, a practical necessity in IN AN URBAN known that the tree was diseased, rural areas.10 The court noted that decayed, or in an otherwise dan- the rule was not applicable in AREA gerous condition.17 The only duty urban situations, however, because General Liability of imposed upon an urban landowner of the heightened danger and con- Urban Landowner with regard to knowledge of the sequences of such a nonliability health or condition of trees is that policy in an urban setting.11 An urban landowner is held to a of a reasonable person. The Even for trees located in rural standard of reasonable care in landowner is not charged with the locations, the Cornett court recog- inspecting trees that could fall over knowledge or understanding of an nized a growing trend away from a property line to ensure the safety expert trained in the inspection, blanket nonliability since Roberts of others. This duty is limited to care, and maintenance of trees.18 was decided. Instead, if a rural trees having “patent visible decay Two cases illustrate this point. A landowner that knows that a tree is decayed was or should have been aware that the tree was hazardous, and and may fall and damage the property of an therefore the defendant could not be held liable for the plaintiff’s adjoining landowner has a duty to eliminate injury. The Willis court did not address the danger, even if the tree grew on and whether the defendant had an implied easement to cross the became part of the land by natural condition. property line and render the jointly In Cornett, a tree located in a held that adjoining landowners of a owned tree safe by the exercise of Fulton County residential neigh- tree growing on a property bound- self help if the other owner failed to borhood fell due to an apparent ary do not own the tree as tenants acknowledge their joint duty of combination of high winds and the in common, but “each owns in sev- maintenance. Similarly, a nervous tree’s visible rot.19 Before the tree eralty the part thereof which rests neighbor is not entitled to enter fell, the owner had been notified of upon his side of the line, with an adjoining property to remove an the tree’s diseased condition and easement of support from the unsafe tree growing near the that the tree was visibly leaning other.”24 As in the case of a party boundary that threatens to fall over toward the neighboring yard.20 wall, the adjoining landowners the property line onto that neigh- The court explained that when a have a joint duty to maintain the bor’s property.30 Although Georgia tree is in an urban area and falls tree and take reasonable steps to will allow a neighbor to trim into the neighboring property, guard against any hazardous con- branches that actually cross over there “is no dispute as to the dition the tree may pose. Next, the the property line,31 a self-help landowner’s duty of reasonable court determined whether the foray onto the adjoining property care, including inspection to make defendant had breached any duty would likely be trespass. The nerv- sure that the tree is safe.”21 A to maintain the tree. The plaintiff’s ous neighbor’s sole right is to point landowner that knows that a tree is expert, who inspected the fallen out the threatening tree and the decayed and may fall and damage tree, testified that several visible associated potential liability to the the property of an adjoining conditions on the tree indicated to tree owner and, perhaps, to any landowner has a duty to eliminate him that the tree was diseased and applicable property owners associ- the danger, even if the tree grew on posed a hazard.25 However, the ation or municipal authority. and became part of the land by nat- court held that the expert’s testimo- A related question is whether a ural condition. Because the defen- ny failed to establish that a non- property owner whose tree has dant in Cornett had notice of the expert should have reasonably fallen across a property line has the hazardous condition of the tree known the tree was diseased.26 The right or duty to enter a neighbor’s that fell, and because the tree was court explained that the defendant property to remove the fallen tree. located in an urban neighborhood, was not charged with the knowl- Although cases in other states sug- the defendant had breached his edge of the expert witness with gest the fallen tree remains the duty of reasonable care. regard to the health of trees.27 property of the original owner with Similarly, in Willis v. Maloof,22 Supporting the conclusion that a an implied right of retrieval,32 the plaintiff was severely injured layperson would not have the Georgia law has not yet addressed when struck by a falling tree. The expertise to recognize the diseased this issue, and the Willis case sug- tree was located on the boundary nature of the tree was the plaintiff’s gests Georgia courts may be reluc- dividing the land owned by the own testimony that he did not real- tant to imply such an easement or plaintiff and the defendant in a res- ize before the accident that the tree license due to Georgia’s long- idential area in DeKalb County.23 was dangerous or defective.28 standing respect for the sanctity of Because the tree was not solely Other witnesses testified that the property lines.33 Absent an agree- located upon the defendant’s prop- tree was bearing green leaves at the ment between the two neighbors, erty, the court first confronted the time it fell and did not appear to be the right and responsibility to actu- question of who was responsible diseased.29 The plaintiff did not ally remove the fallen tree appears for maintaining the tree. The court demonstrate that the defendant to stop at the common property

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800-817-6333800-817-6333 ext.ext. #502#502 MAINSTREETMAINSTREET INSURANCEINSURANCE PURCHASINGPURCHASING GROUPGROUP 14021402 ThirdThird Avenue,Avenue, SuiteSuite 520,520, SeattleSeattle WAWA 98101-2118 98101-2118 www.EZlawquote.comwww.EZlawquote.com line, with the liability for the cost of of falling limbs from the tree.41 received actual notice of a problem that removal likely to be resolved Relying on Cornett and Willis, the with the tree that fell, and the tree between the owners as provided in court explained that “[j]ust as the evidenced no signs of disease, so Cornett and its progeny. owner of a tree has no duty to the landowner was not deemed to Liability of check it constantly for nonvisible have constructive notice of a haz- rot, a city has no duty to check ardous condition.50 Consequently, Municipalities limbs overhanging a public road the Wade court relied on the “three Municipalities, like individual for nonvisible rot.”42 The fact that a leading cases” of Cornett, Willis and urban landowners, are under a tree or limb may be leaning or Carter, to hold for the defendant duty to inspect and remove dan- overhanging in one direction is not landowner because the plaintiff gerous trees growing on public alone sufficient as a basis for notice failed to prove that the defendant land if the municipality has, or that the tree or limb is in a danger- was, or should have been, on notice should have, notice of the dis- ous condition. The limb that fell on of the hazardous tree.51 eased nature of the tree. In two the plaintiff in Carter was actually The application of Cornett to cases from the 1950s, City of decayed, but because undisputed uninhabited and undeveloped land Bainbridge v. Cox34 and City eyewitness testimony established in urban areas is also demonstrated Council of Augusta v. Hammock,35 that the limb appeared normal, the by Wesleyan College v. Weber.52 In the Georgia Court of Appeals court held the city free of liability.43 Wesleyan College, a motorist was upheld jury verdicts against Liability for killed when a tree fell onto her car municipalities for injuries caused while she was driving on a Macon Undeveloped or street next to land owned by the when visibly decayed trees grow- Uninhabited Urban Land ing in the public right of way fell defendant, Wesleyan College.53 on citizens using adjacent streets The duty of care established in The college owned a narrow strip and sidewalks, citing the failure Cornett applies to undeveloped of undeveloped land, containing a of both municipalities to exercise land in its natural state that is locat- large number of trees, located due care in inspecting its respec- ed within an urban area such as across a highway from the college tive streets.36 The Court of metropolitan Atlanta, even if the president’s home.54 The court reit- Appeals most clearly explained land is located in an unincorporat- erated the rule, established by the theory of such municipal lia- ed section of a metropolitan coun- Cornett, that a landowner has no bility in Carter v. Ga. Power Co.37 ty.44 Without expressly so ruling, duty to check all trees for non-visi- In Carter, the plaintiff was injured Georgia courts have also assumed ble rot. However, despite the fact by a falling tree limb as he walked that the Cornett duty applies to that the land was undeveloped, a along a Macon city street.38 The urban land on which the owner landowner does have a duty to plaintiff sued the city of Macon does not reside, and have assumed inspect trees for the presence of for negligence, based on the the duty applies even if the owner “visible, apparent, and patent” assertion that the fallen limb had is physically unable to exercise rea- decay.55 Thus, a landowner is pre- been dead for so long that it had sonable care in tree inspection.45 sumed to have constructive notice detached from the tree and was In Wade v. Howard,46 the plain- of what a reasonable inspection resting on other limbs in the tiffs’ children were killed when a would reveal as to the condition of tree.39 The plaintiff argued that tree fell across a road during a trees on his or her land. The trees in the city, pursuant to the duty of a thunderstorm.47 The tree was the general area where the tree fell municipality to maintain the pub- located on a parcel of land in unin- were “blighted,” and many were lic roads free from defects, should corporated DeKalb County owned “dead, diseased, dying, or had fall- have discovered the defect and by an elderly woman who was en,” and the court reasoned that a danger posed by the tree through very ill and had not lived on the drive-by inspection of the trees an exercise of reasonable care.40 property for 10 years.48 Due to her would reveal to a reasonable The court explained that the poor physical condition, the landowner the hazardous condi- determination of the city’s liability landowner was unable to personal- tion of this stand of trees.56 Such an hinged on whether the municipali- ly inspect the trees with reasonable obvious hazard would give notice ty had actual notice of the danger care.49 The landowner had never to the landowner that an individ-

14 Georgia Bar Journal ual inspection of each tree within condition.60 An invitee that has accident.67 Although the risk was the blighted stand was warranted. knowledge equal to that of the obvious in Byrd, if there is a dispute Based on this constructive notice of landowner with regard to the haz- about the safety of a particular inte- the hazard, and the defendant’s ardous condition may not recover rior tree, presumably Georgia failure to attempt to remedy the from the landowner if injured courts will look at the factors cited dangerous situation, the court held while on the land. If an invitee in Cornett and Willis to determine that Wesleyan College was liable enters upon land while “as fully the standard of knowledge for both for the death of the motorist, even aware of the dangers and defects of owners and visitors regarding though the college had no notice the premises” as the landowner, unsafe interior trees. that this particular tree was dis- the invitee has assumed the risk of The most recent case on falling eased and unsafe.57 injury, and the landowner will not tree liability, Klein v. Weaver,68 also Liability for Injuries to be held liable upon injury to the involved injuries suffered by an invitee.61 Therefore, a landowner invitee who was struck by a dis- Invitees has no obligation to protect an invi- eased tree limb that fell from a tree The previous cases all addressed tee from dangers “which are located within the landowner’s situations in which the falling tree known to [the invitee] or which are property.69 The Klein court upheld crossed over a property boundary so obvious and apparent [that the summary judgment for the and struck someone in either an invitee] may be reasonably expect- landowner, citing an absence of evi- adjoining tract of land or in the ed to discover them.”62 dence in the record that the tree public right of way. In these cases, the courts focused exclusively on Georgia courts have long held that the mere the actual and constructive knowledge of the tree owner and did not ownership of land will not cause one party consider the knowledge of the person struck by the tree. Georgia to be liable for injuries sustained by another courts use a different analysis if the plaintiff has entered upon the party while upon the land. property on which the tree is located and is struck by a tree growing The law regarding landowner lia- limb had any outward appearance in the interior of the property, one bility for injuries to invitees caused of disease or decay.70 The court also that considers the knowledge of the by falling trees is demonstrated in held that the fact another limb had risk by both the landowner and the Byrd v. Rivenbark.63 In Byrd, the fallen from the same tree two weeks person struck. plaintiff’s decedent was fatally previously did not constitute notice Georgia courts have long held struck on the head by a tree limb of a dangerous condition in the that the mere ownership of land located on the defendant’s proper- absence of any evidence that the will not cause one party to be liable ty.64 The deceased was on the land prior limb also was diseased or for injuries sustained by another as a business invitee, specifically for decayed.71 Finally, the court found party while upon the land.58 A the purpose of removing the tree the landowner’s efforts to have landowner is not considered to be limb, which had detached during a limbs trimmed from the tree that an insurer of those persons who storm.65 The court explained that were near a power line did not enter upon the land, even when the hazardous condition of the establish notice of a dangerous con- those persons are invitees.59 Under branch was obviously known to the dition because the landowner was well-established Georgia law, a deceased,66 because he had been motivated by a different concern— landowner will only be liable to invited onto the property for the fear of a power line accident.72 invitees, or other persons who express purpose of removing the enter upon the land, if the branch. Therefore, the defendant’s CONCLUSION landowner has superior knowl- knowledge regarding the haz- Landowners in a rural area are edge of a hazardous condition ardous limb was not superior to the subject to a less stringent standard upon the land, while the invitee knowledge of the deceased, and the of care than landowners in an has no knowledge of the perilous defendant was not liable for the urban area. A rural landowner is

16 Georgia Bar Journal not required to inspect the land to 2. See, e.g., Hall v. Browning, 195 Ga. 34. City of Bainbridge v. Cox, 83 Ga. make sure that every tree is safe. 423, 24 S.E.2d 392 (1943) (firing a App. 453, 64 S.E.2d 192 (1951). When put on notice, however, that bullet across boundary line consti- 35. City Council of Augusta v. tutes trespass); Ledbetter Bros. Inc. Hammock, 85 Ga. App. 554, 69 a particular tree is dangerous to a v. Holcomb, 108 Ga. App. 282, 132 S.E.2d 834 (1952). neighbor or to the public, a rural S.E.2d 805 (1963) (a quarry opera- 36. City of Bainbridge, 83 Ga. App. at landowner must then take affirma- tion that throws rocks, smoke and 458, 64 S.E.2d at 195; City Council of tive steps to remedy the hazard. An other debris across property line Augusta, 85 Ga. App. at 561, 69 liable for trespass); Belt v. Western urban landowner, by contrast, S.E.2d at 839. Union Tel. Co., 63 Ga. App. 469, 11 37. Carter v. Georgia Power Co., 204 must satisfy a standard of reason- S.E.2d 509 (1940) (telephone line Ga. App. 77, 418 S.E.2d 379 (1992). able care in inspecting trees to crossing property line without con- 38. Id. at 77, 418 S.E.2d at 379. ensure the safety of others. sent constitutes trespass). 39. Id. at 77, 418 S.E.2d at 380. 3. Id. See also Reinertsen v. Porter, 242 However, liability for urban 40. Id. Ga. 624, 250 S.E.2d 475 (1978) 41. Id. at 77-78, 418 S.E.2d at 380. landowners is limited to trees hav- (owner of personalty that inadver- 42. Id. at 78, 418 S.E.2d at 380. ing “patent visible decay and not tently lands on the property of 43. Id. the normal usual latent micro-non- another has no implied license to 44. Wade v. Howard, 232 Ga. App. 55, retrieve that property without the visible accumulative decay.”73 499 S.E.2d 652 (1998). landowner’s permission, whereas Finally, a landowner is liable to 45. Id. the land owner has the right to 46. Id. invitees for injuries from trees remove the wayward object with- 47. Id. at 56, 499 S.E.2d at 653. growing in the interior of the land out fear of liability for conversion 48. Id. if the landowner had superior as long as it exercises reasonable 49. Id. care in removing the object). knowledge to that of the invitee 50. Id. 4. O.C.G.A. § 44-1-2 (1991 & Supp. 51. Id. at 59, 499 S.E.2d at 655. regarding the hazardous nature of 2003). 52. Wesleyan Collge v. Weber, 238 Ga. those interior trees. 5. Cornett v. Agee, 143 Ga. App. 55, App. 90, 517 S.E.2d 813 (1999). 237 S.E.2d 522 (1977). 53. Id. at 90, 517 S.E.2d at 815. David J. Burge is a 6. Id. at 55, 237 S.E.2d at 523. 54. Id. 7. Roberts v. Harrison, 101 Ga. 773, 28 partner in the Real 55. Id. at 92, 517 S.E.2d at 816. S.E. 995 (1897). Estate Section of 56. Id. at 94, 517 S.E.2d at 817-818. 8. Id. at 775, 28 S.E. at 996. 57. Id. at 95, 517 S.E.2d at 818. Smith, Gambrell & 9. Id. 58. See, e.g., Harris v. Star Servs., Co., Russell, LLP, in Atlanta. 10. Cornett, 143 Ga. App. at 55, 237 170 Ga. App. 816, 318 S.E.2d 239 He served as chairman of the Real S.E.2d at 523. (1984); Amear v. Hall, 164 Ga. App. Estate Section of the Atlanta Bar 11. Id. at 56, 237 S.E.2d at 523. 163(2), 296 S.E.2d 611 (1982). 12. Id. Association from 1999-2000 and 59. Id. 13. Id. at 55, 237 S.E.2d at 523. 60. Id. currently serves on the executive 14. Id. at 56, 237 S.E.2d at 523. 61. Harris, 170 Ga. App. at 817, 318 committee of the Real Property 15. Id. at 57, 237 S.E.2d at 524. S.E.2d at 240. Law Section of the State Bar of 16. Id. 62. Amear, 164 Ga. App. at 169, 296 Georgia. Burge earned his B.A., 17. Id. S.E.2d at 616. 18. Id. See also infra note 27. magna cum laude, from Vanderbilt 63. Byrd v. Rivenbark, 183 Ga. App. 19. Id. at 55, 237 S.E.2d at 523. University and received his J.D., 564, 359 S.E.2d 433 (1987). 20. Id. 64. Id. at 564, 359 S.E.2d at 434. with first honors, from the 21. Id. at 56, 237 S.E.2d at 523. 65. Id. University of North Carolina. He 22. Willis v. Maloof, 184 Ga. App. 349, 66. Id. at 565, 359 S.E.2d at 434. wishes to acknowledge the assis- 361 S.E.2d 512 (1987). 67. Id. at 566, 359 S.E.2d at 435. tance of Ryan Stinnett, an associ- 23. Id. at 349, 361 S.E.2d at 512. 68. Klein v. Weaver, 265 Ga. App. 390, 24. Id. at 349, 361 S.E.2d at 513. ate at Smith, Gambrell & Russell, 593 S.E.2d 913 (2004). 25. Id. at 350, 361 S.E.2d at 513. 69. Id. at 391, 593 S.E.2d at 914. LLP, in researching this article. 26. Id. at 350-51, 361 S.E.2d at 513-14. 70. Id. at 392, 593 S.E.2d at 914. Endnotes 27. Id. at 350-51, 361 S.E.2d at 514. 71. Id. at 392, 593 S.E.2d at 915. 28. Id. at 350, 361 S.E.2d at 513. 72. Id. 1. “The right of enjoyment of private 29. Id. at 351, 361 S.E.2d at 514. 73. See also Barnes v. St. Stephen’s property being an absolute right of 30. See DANIEL F. HINKEL, PINDAR’S GA. Missionary Baptist Church, 260 Ga. th every citizen, every act of another REAL ESTATE LAW § 9-21 (6 ed. App. 765, 580 S.E.2d 587 (2003) which unlawfully interferes with 2004). (recent reiteration of Cornett and such enjoyment is a tort for which 31. Id. Wade holdings). an action shall lie.” O.C.G.A. § 51- 32. Id. 9-1 (2000 & Supp. 2003). 33. See supra note 1.

October 2004 17 Considering the Consideration Approach to Classifying Georgia By John K. Larkins Jr. Contracts In Partial Restraint of Trade

In Rakestraw v. Lanier,1 decided in 1898, the Georgia Supreme Court complained about the law governing contracts made in restraint of trade: We cannot, within reasonable limits, undertake to reconcile conflicting opinions in treating of contracts in restraint of trade, nor cite the authorities which bear upon the different constituent elements which render such contracts valid, or the want of which make them void, for the reason that the first are irreconcilable, and the latter inharmonious.2 If only they could see us now. Over a century later, Georgia law governing covenants in partial restraint of trade (including non-competition, non-disclosure, non-solicitation, and non-piracy covenants—collectively referred to herein as “Covenants”)3 is an ever-changing labyrinth from which few agreements escape.4 Even a sophisticated commercial agreement, negotiated at arm’s length by parties represented by counsel, may be deemed by a court to be “analogous” to an employment contract and thereby subjected to the strictest of scrutiny. But the stage has perhaps been set for a modest but important change. Two recent decisions of the Georgia Court of Appeals have discarded the traditional “type of contract” method of categorizing Covenants for review, relying instead on an analysis based on the relative bargaining power of the parties and the existence of consideration for the Covenant. This article suggests that the “consideration” prong of this new test should be jettisoned,

18 Georgia Bar Journal and that “bargaining power” Traditionally, Covenants ancillary to employ- should be the sole criterion for determining which level of scruti- ment contracts receive strict scrutiny, those ny a court uses to analyze a Covenant. ancillary to professional partnership agree- THE TRADITIONAL ments receive mid-level scrutiny, and those CLASSIFICATIONS ancillary to the sale of a business receive OF AGREEMENTS CONTAINING lower scrutiny. Although strict scrutiny is typi- ogy to arrive at strict scrutiny, hold- COVENANTS cally and nominally associated ing that an agreement was like a Under current Georgia law, the with employment contracts, as a franchise agreement and therefore threshold task for a court consider- practical matter it is the default cat- like an employment agreement.13 ing the enforceability of a Covenant egory; if the contract is not a pro- is to examine the nature of the fessional partnership agreement or A GLIMMER OF agreement containing the Covenant. a contract for the sale of a business, REFORM Based on the type of contract, the it will be deemed “analogous” to court then determines whether the an employment contract and thus There are indications that the Covenant receives strict, mid-level subject to strict scrutiny.9 Indeed, Georgia Court of Appeals is seeking or low-level judicial scrutiny.5 Richard P. Rita Personnel Services a new paradigm. Decided in 2001, Traditionally, Covenants ancillary to International, Inc. v. Kot10—the case Swartz Investments, LLC v. Vion 14 employment contracts receive strict in which the Georgia Supreme Pharmaceuticals, Inc. involved an scrutiny, those ancillary to profes- Court adopted the “no blue-pencil” agreement by Swartz to raise financ- sional partnership agreements rule on the basis of the “in terrorem ing for Vion. Vion agreed to a “non- receive mid-level scrutiny, and effect on employees … and on com- circumvention provision” prohibit- those ancillary to the sale of a busi- petitors who fear legal complica- ing it for a period of five years from ness receive lower scrutiny.6 tions if they employ a covenan- contacting or negotiating with Significant distinctions exist tor”—involved a franchise agree- named investors regarding an among the levels of scrutiny that ment, not an employment contract. investment in Vion or another com- dramatically affect the survival of Consequently, even commercial pany without Swartz’s permission. the Covenant at issue. Although transactions between sophisticated The covenant called for the pay- Covenants of all types are theoret- parties bargaining at arm’s length ment of a commission to Swartz if ically evaluated under a “rule of have been deemed to be analogous investments were obtained in viola- 15 reason,”7 a Covenant subject to to employment contracts and have tion of the covenant. strict review is subject to numer- fallen prey to the strict scrutiny rules. Finding that the provision was a ous sub-rules defining reasonable- For example, in Amstell, Inc. v. Bunge covenant in partial restraint of ness, and the violation of any one Corp.,11 a non-competition covenant trade, the Swartz court proceeded of these sub-rules will toll the contained within an agreement to determine the proper category of death knell for the Covenant (and between two corporations regarding scrutiny. After identifying the tra- possibly others associated with it). the distribution of a product was ditional categories, the court made Perhaps most importantly, a considered under strict scrutiny/no- an extraordinary statement: Covenant receiving strict review blue-pencil principles, because the Of course, not every contract cannot be “blue-penciled” and covenant was “ancillary to an inde- falls directly into one of these will fail for even the most minor pendent contractor manufacturing three categories. Nor do we transgression, whereas a Covenant and distributorship, which is treated believe that the type of contract receiving low-level review can be as an employment rather than a sales should automatically determine the 16 judicially modified to make it contract.”12 In some cases, the court applicable level of scrutiny. enforceable, if necessary.8 has even engaged in a two-step anal- Examining the purposes under-

October 2004 19 In Swartz and West Coast Cambridge, the Court of Appeals took a step in the right direction by eschewing the “type of contract”approach to analyzing Covenants. lying the varying levels of scrutiny, power as a rationale to justify the tor’s relinquishment of his the court then found that the analy- level of scrutiny applicable to a interest in the business to the sis is governed by the “relative bar- Covenant.24 Covenants in contracts buyer, and not solely in return gaining power of the parties” and for the sale of a business have been for the covenantor’s continued “whether there is independent con- distinguished from those in employ- employment, the judge must sideration for the restrictive ment contracts, in part, on the determine the covenantor’s sta- covenant itself.”17 The court ruled grounds that the seller of a business tus. If it appears that his bar- that the two corporations had receives consideration for the gaining capacity was not signif- equal bargaining power (the par- Covenant in the form of the good icantly greater than that of a ties were sophisticated corpora- will portion of the purchase price, mere employee, then the tions and advised by counsel), but while the terminated employee sup- covenant should be treated like that there was “no consideration posedly receives no additional remu- a covenant ancillary to an for the covenant at issue,” and neration for post-termination restric- employment contract….28 therefore applied strict scrutiny.18 tions.25 Additionally, Covenants in Likewise, in Watson v. Waffle Thus, the absence of independent professional partnership agreements House, Inc.,29 which involved a consideration for the covenant was have been scrutinized less closely non-competition covenant con- sufficient to trigger strict scrutiny, than those in employment agree- tained in a lease, the Georgia despite the parties’ equal bargain- ments on the basis that each of the Supreme Court identified bargaining power.19 partners in the partnership is recip- ing power as the determining fac- In 2003, the Court of Appeals fol- rocally bound by the Covenant, thus tor in analyzing the covenant. In lowed the Swartz approach in West demonstrating a common considera- ruling that the covenant should Coast Cambridge, Inc. v. Rice,20 in tion flowing to all.26 receive strict scrutiny, the court which the court considered a non- In White v. Fletcher/Mayo/Associates, posited that the lease arrangement competition provision in a convo- Inc.,27 the Georgia Supreme Court was most closely analogous to an luted agreement involving a physi- focused on relative bargaining power employment agreement because of cian, a corporation and a partner- as the primary factor in determining the imbalance of bargaining power ship. Citing Swartz, the court noted, the appropriate level of scrutiny for between the parties.30 The Watson “Recently, we found that the level analyzing covenants. The issue in court did not even consider of scrutiny is not directly tied to the White was how to treat non-competi- whether there was independent type of contract under consideration covenants that were simultane- consideration for the covenant. tion.”21 After applying the Swartz ously ancillary to both an employ- The Supreme Court clearly indi- bargaining power/consideration ment contract and the sale of a busi- cated in White and Watson that bar- analysis, the court announced that ness. The court could not determine gaining power is the primary factor it was “unpersuaded” that the whether the consideration for the in the determination or rationale for physician lacked bargaining power covenants flowed from the profit the appropriate level of scrutiny.31 and concluded that he had received from the sale or from White’s contin- But should it be the sole criterion? “significant monetary considera- ued employment, so it turned its tion” as a passive investor.22 Based attention to the parties’ relative bar- BARGAINING on these findings, the court held gaining power: POWER AS THE that the transaction at issue was [W]e hold today that where a comparable to the sale of a business judge is asked to determine the SOLE DISPOSITIVE and applied low-level scrutiny.23 enforceability of a noncompeti- Swartz and West Coast Cambridge tion covenant which the buyer CRITERION are certainly not unique in their use of a business contends was In Swartz and West Coast of consideration and/or bargaining given ancillary to the covenan- Cambridge, the Court of Appeals took

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MK-04-1413 a step in the right direction by of a business), for then the analysis windfall for one party, perhaps a eschewing the “type of contract” is circular (i.e., consideration, not disaster for the other, and certainly approach to analyzing Covenants. the type of contract, is dispositive, a frustration of their contractual As evidenced by the Supreme but consideration is determined by intent.36 Adoption of the bargain- Court’s focus on bargaining power the type of contract). ing power approach would change in White and Watson, however, per- Finally, using the absence of a largely unpredictable commer- haps the “consideration” prong of identifiable “independent consid- cial environment to one in which the analysis should be abandoned, eration” as a criterion for determin- the parties to a negotiated agree- leaving only an examination of the ing the level of scrutiny is poor pol- ment could be assured that if their balance of bargaining power icy, for it frustrates reasonable com- contract were found to be unrea- between the contracting parties as mercial expectations of parties who sonable because it tripped one of determinative of the level of scrutiny. engage in true arm’s-length negoti- Georgia’s technical rules, or sim- The idea, expressed in Swartz ations to arrive at a mutually agree- ply because a court considered it and adopted in West Coast Cambridge, that an analysis of the Adopting bargaining power as the sole criterion ultimate legality of a covenant in restraint of trade may depend on for determining the level of scrutiny would effect the existence of “independent con- a small but important reform in Georgia law. sideration” for the promise has no mooring in the law.32 Only slight able contract.35 This can be seen in unreasonable in some respect, it consideration is required to sup- Swartz, where two sophisticated could be judicially modified and port a valid contract, and a corporations with equal bargaining the parties’ general contractual Covenant ancillary to a valid agree- power negotiated for a contract in intention enforced. ment is supported by the same con- an investment transaction with Under a pure bargaining power sideration that necessarily must enormous financial consequences, approach, even some employment exist in the underlying agree- only to have a significant part of it contracts may be subject to low- ment.33 As a practical matter, die under a strict scrutiny analysis level scrutiny. And why not? If a unless separate, “independent” merely because there was no dis- public company enters into an consideration is identified in the cernable “independent considera- agreement with its new CEO that is contract itself, it is impossible for a tion” for the Covenant. the product of negotiation, where court to truly parcel out and accu- Adopting bargaining power as both sides are represented by coun- rately weigh the consideration of the sole criterion for determining sel, that contract should not be sub- an agreement to find out what por- the level of scrutiny would effect a ject to the same strict scrutiny tion is associated with the small but important reform in applied to the typical adhesion Covenant, much less to determine Georgia law. Primarily, where the employment contract.37 whether that part is “substantial.” contract is in fact the product of There also would be no use for As stated in Rakestraw v. Lanier, true bargaining by parties on equal the mysterious “mid-level” scruti- “The exact value of consideration footing—and thus not an adhesion ny. This concept was the product of the court ought not, and, in the contract—the parties’ contractual the “type of contract” approach, nature of things cannot undertake expectations would not be frustrat- where a professional partnership to measure.”34 For example, who ed by the unforgiving technicali- did not seem analogous to either an knows if the investment company ties of strict scrutiny. Under cur- employment contract or a sale of in Swartz would have created a dif- rent Georgia law, if two sophisti- business. Thus, its raison d’être ferent financial arrangement, or not cated parties freely negotiate a would vanish under a method of done the deal at all, without the business agreement containing a analysis focusing only on bargain- client’s promise not to circumvent Covenant that is subject to strict ing power.38 Any characteristics their efforts? And it is no answer to scrutiny, the Covenant will fail unique to professionals or partner- say that consideration is presumed utterly if a court finds it to be ships would simply be accounted from the nature of the contract (for unreasonable even in one minor for by the court in its basic “reason- example, in a contract for the sale detail, probably resulting in a ableness” analysis.

22 Georgia Bar Journal Determining the level of scruti- Adopting bargaining power as unequal bargaining power, where- ny solely based on bargaining the sole criterion for classifying as contracts for the sale of business power is also perfectly consistent covenants would result in more and agreements among persons with the policy underlying the agreements being analyzed under forming a business association are “no-blue-pencil” doctrine. The low-level scrutiny, but it would not usually made by parties having doctrine was adopted to intimi- involve any disruption in the basic relatively equal bargaining date or punish employers who principles of current law. Indeed, power.40 Agreements not plainly might be tempted to fashion oner- as shown above, the “bargaining falling into these categories, how- ous Covenants, knowing that the power” analysis was largely the ever, would no longer be “analo- few Covenants that made it to approach adopted by the Supreme gized” based on a resemblance court would simply be pared Court in White. As the Court of derived from an analysis of consid- down and enforced.39 But this Appeals has already held in eration or other factors. rationale obviously does not apply Swartz, the mere type of contract Adoption of a bargaining power where the parties have relatively would no longer be determinative test would not mean that parties equal bargaining power and thus of the level of scrutiny. The courts are free to craft a Covenant negotiate the terms of the restric- could reasonably adopt a rebut- beyond judicial review—once the tion in a commercial agreement. table presumption that employ- appropriate level of scrutiny is Moreover, even where blue-pen- ment contracts are not the product determined, the customary rules ciling is allowed, Georgia law of bargaining, and the opposite of “reasonableness,” informed by establishes that the court strictly presumption for contracts for the public policy, would apply in limits the covenant to what has sale of a business and contracts assessing the enforceability of the been shown by clear and convinc- between persons entering into Covenant. Under this model, the ing evidence to be necessary, business associations. Such rebut- nature of the consideration reflect- instead of what is merely reason- table presumptions would recog- ed in the agreement would, at able, thus imposing a brake on a nize that employment contracts best, merely be evidence of the party’s overreaching.40 typically involve parties of parties’ bargaining power.

October 2004 23 of Ga., Inc., 230 Ga. 558, 198 S.E.2d sideration would seem to be a mis- CONCLUSION 145 (1973). take, since the covenant would 8. Whether a covenant under mid- have been entirely unenforceable if The recent decisions of the Court level scrutiny can be blue-penciled it was not supported by any con- of Appeals in essence go halfway is undecided. Habif, Arogeti & sideration. Evidently, what the towards a small but potentially Wynne, P.C., 231 Ga. App. at 291, court was referring to was the meaningful reform in Georgia’s 498 S.E.2d at 350; but see Physician absence of independent considera- Specialists in Anesthesia, P.C. v. tion for the covenant. Covenant law. Determining the MacNeill, 246 Ga. App. 398, 539 19. See also Herndon v. Waller, 241 Ga. level of scrutiny under which S.E.2d 216 (2000) (striking App. 494, 525 S.E.2d 159 (1999); Covenants are analyzed by exam- covenant subject to mid-level Northside Hosp. Inc. v. McCord, ining only the parties’ bargaining scrutiny without addressing blue 245 Ga. App. 245, 537 S.E.2d 697 pencil issue). There seems to be a (2000). power would cure some complica- tendency to conflate the level of 20. 262 Ga. App. 106, 584 S.E.2d 696 tions and uncertainties in current scrutiny with the blue pencil rules. (2003). law, as well as strike an appropriate See Hicks v. Doors By Mike, Inc., 21. Id. at 108, 584 S.E.2d at 698 (citing 260 Ga. App. 407, 579 S.E.2d 833 Swartz, 252 Ga. App. at 368-69, 556 balance between the freedom of (2003) (quoting blue pencil rule S.E.2d at 463). parties to freely negotiate their con- during scrutiny phase of review). 22. West Coast Cambridge, Inc., 262 Ga. tracts and the public policy against 9. See generally Jenkins v. Jenkins App. at 109-10, 584 S.E.2d at 699. covenants unreasonably restrain- Irrigation, Inc., 244 Ga. 95, 259 Note that the term “comparable” is S.E.2d 47 (1979). indicative of the “analogy” ing trade. 10. 229 Ga. 314, 317, 191 S.E.2d 79, 81 methodology. (1972). 23. Id. at 110, 584 S.E.2d at 699. John K. Larkins Jr. is a partner in 11. 213 Ga. App. 115, 443 S.E.2d 706 24. Rash v. Toccoa Clinic Med. Ass’n, the Atlanta firm of Chilivis, Cochran, (1994); see also Advance 253 Ga. 322, 320 S.E.2d 170 (1984); Larkins & Bever LLP. He is a graduate Technology Consultants, Inc. v. White v. Fletcher/Mayo/Assoc., Roadtrac, LLC, 250 Ga. App. 317, Inc., 251 Ga. 203, 303 S.E.2d 746 of the University of Georgia School 551 S.E.2d 735 (2001) (agreement (1983). Note, however, that White of Law (1976), and is the author of between manufacturer and distrib- went on to hold that bargaining Georgia Contracts: Law & Litigation, utor); Northside Hospital, Inc. v. power was dispositive. published by Thomson West. McCord, 245 Ga. App. 245, 537 25. See, e.g., Rakestraw v. Lanier, 104 S.E.2d 697 (2000) (covenant in sub- Ga. 188, 30 S.E. 735 (1898). The Endnotes lease); PCS Jt. Venture Ltd. v. effect on the person restrained Davis, 219 Ga. App. 519, 465 S.E.2d appears to be the primary “public 1. 104 Ga. 188, 30 S.E. 735 (1898). 713 (1995) (exclusive distributor policy” concern. 2. Id. at 192, 30 S.E. at 737. agreement between fertilizer man- 26. Rash v. Toccoa Clinic Med. Ass’n, 253 3. See J. Larkins, GEORGIA CONTRACTS: ufacturer and customer). Ga. at 325, 320 S.E.2d at 173. LAW & LITIGATION, Ch. 8 (Thomson 12. Amstell, 213 Ga. App. at 116, 443 27. 251 Ga. 203, 303 S.E.2d 746 (1983). West 2002) (hereinafter, Georgia S.E.2d at 707. 28. Id. at 208, 303 S.E.2d at 751; but cf. Contracts). 13. Watson v. Waffle House, Inc., 253 Lyle v, Memar, 259 Ga. 209, 378 4. “There is no area of Georgia law of Ga. 671, 324 S.E.2d 175 (1985); S.E.2d 465 (1989) (possibly citing more intricate subtlety than the Owens v. RMA Sales, Inc., 183 Ga. different rule, but not overruling law governing covenants not to App. 340, 358 S.E.2d 897 (1987). or citing White). compete…. Despite decades of 14. 252 Ga. App. 365, 556 S.E.2d 460 29. 253 Ga. 671, 324 S.E.2d 175 (1985). appellate decisions, covenants not (2001). 30. Id. at 672, 324 S.E.2d at 177 (“The to compete continue to be struck 15. Id. at 366, 556 S.E.2d at 461. rationale behind the distinction in down with great frequency, and 16. Id. at 369, 556 S.E.2d at 463 analyzing covenants not to com- the rules continue to develop.” (emphasis added). pete is that a contract of employ- Georgia Contracts, supra note 2, at § 17. Id. The Swartz court cited W.R. ment inherently involves parties of 8-2. Grace & Co. v. Mouyal, 262 Ga. 484, unequal bargaining power to the 5. White v. Fletcher/Mayo/Assoc., 422 S.E.2d 529 (1992), for its extent that the result is often a con- Inc., 251 Ga. 203, 303 S.E.2d 746 reliance on the consideration fac- tract of adhesion. On the other (1983); Advance Technology tor. An examination of W.R. Grace hand, a contract for the sale of a Consultants, Inc. v. Roadtrac, LLC, reveals, however, that the Supreme business interest is far more likely 250 Ga. App. 317, 551 S.E.2d 735 Court merely quoted Rakestraw v. to have been entered into by par- (2001). Lanier, 104 Ga. 188, 30 S.E. 735 ties on equal footing.”). 6. For a general discussion of the cat- (1898), for the proposition that a 31. See also Johnstone v. Tom’s egories, see, e.g., Habif, Arogeti & valid covenant must be supported Amusement Co., 228 Ga. App. 296, Wynne, P.C. v. Baggett, 231 Ga. by consideration, not that the 491 S.E.2d 394 (1997) (“The focus App. 289, 498 S.E.2d 346 (1998); covenant had to be supported by in such cases is on the relative bar- Georgia Contracts, supra note 2, at § independent consideration. gaining power of the parties.”); 8.3. 18. The Court of Appeals’ reference Kem Mfg. Corp. v. Sant, 182 Ga. 7. See, e.g., Durham v. Stand-By Labor here and in other places to no con- App. 135, 355 S.E.2d 437 (1987)

24 Georgia Bar Journal (“In order to classify an agreement expressly rejected in Rider v. Orkin 79, 81 (1972). containing a non-competition Exterminating Co., 224 Ga. 145, 160 40. Jenkins v. Jenkins Irrigation, Inc., covenant, we consider certain fac- S.E.2d 381 (1968). 244 Ga. 95, 259 S.E.2d 47 (1979). tors to be determinative. Of these 34. Rakestraw v. Lanier, 104 Ga. 188, 41. Such a presumption may be factors, we give primary impor- 196, 30 S.E. 735, 739 (1898). important because so many tance to the relative bargaining 35. Arguably, the concept of consider- Covenants are the subject of TRO power of the parties.”). ation underlying Swartz and simi- proceedings. Another practical 32. See S. Harbour, “Restrictions on lar cases is flawed, for it seems to consideration is the fact that many Post-Employment Competition by contemplate the discarded “injury contracts will be drafted to include an Executive Under Georgia Law,” or benefit” formula. In 1981, statements regarding bargaining 54 Mercer L. Rev. 1133, 1176 (2003). Georgia adopted the “bargain” power. Of course, under the bar- This article severely criticizes theory of consideration. O.C.G.A. gaining power/consideration test, Swartz, Northside Hospital, and §§ 13-3-42; 13-3-43; see also Georgia contracts may contain recitations Herndon v. Waller: “In these three Contracts, supra note 2, at § 4-1. concerning independent consider- cases, the court could not have 36. This is true notwithstanding that ation as well. In either case, the meant that the noncompete the parties also agreed on a sever- rule seems to be that such recita- covenant was not supported by ability clause. See, e.g., McNease v. tions are not necessarily disposi- consideration. Lack of considera- Nat’l Motor Club of Am., Inc., 238 tive. See Griffin v. Vandegriff, 205 tion means the covenant is not Ga. 53, 231 S.E.2d 58 (1976). Ga. 288, 53 S.E.2d 345 (1949) enforceable at all, not that it is sub- 37. See Harbour, supra note 33 (sug- (recitals must be supported by evi- ject to a higher level of scrutiny.” gesting that such agreements could dence); ALW Mktg. Corp. v. Hill, As indicated, supra note 18, the “no be subject to mid-level scrutiny). 205 Ga. App. 194, 422 S.E.2d 9 consideration” language in Swartz 38. “Middle scrutiny,” as a term, origi- (1991) (recital that covenant is rea- in fact seems to refer to the nated with the Court of Appeals in sonable not binding); but see Rash absence of separate consideration Habif, Arogeti & Wynn as an explana- v. Toccoa Clinic Med. Ass’n, 253 for the covenant. tion for the Supreme Court’s hold- Ga. 322, 320 S.E.2d 170 (1984) (not- 33. See, e.g., Mike Bajalia, Inc. v. Pike, ing in Rash. It is now a settled, if ing that parties agreed covenant 226 Ga. 131, 172 S.E.2d 676 (1970). somewhat vague, principle in Court was reasonable and its breach Indeed, the contention that a valid of Appeals precedent, however. would cause harm). covenant must be supported by 39. Richard P. Rita Pers. Svcs. Int’l, Inc. independent consideration was v. Kot, 229 Ga. 314, 317, 191 S.E.2d

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October 2004 25 GBJ feature

The 2003 Amendment to the Georgia Class Action Statute: A New Day for Georgia Class Actions? By Corliss Lawson and Paul Kim The Curious n 2003, the Georgia General Development of the Assembly substantially revised Pre-2003 Georgia Class Action Statute the Georgia class action statute I Until its recent amendment for the first time since its enactment in in 2003, the Georgia class action statute was based, 1966.1 As a result of that amendment, in large part, on the O.C.G.A. § 9-11-23, which applies to federal class action statute in effect all Georgia class actions filed on or between 1938 and 1966. after July 1, 2003, is now nearly iden- Under that tical to the federal class action statute, federal class action 2 Fed. R. Civ. P. 23 (2004). statute, as By its amendment of the statute, a threshold the Georgia General Assembly matter, a resolved an important issue con- class action cerning the scope of Georgia class had to involve a actions, and opened the door to the class of persons possibility of national class action too numerous to lawsuits being filed in Georgia make it practica- state courts. The amendment, as ble to bring them all well as other Georgia law, howev- incorporate many of the same diffi- before the court.3 er, contains significant constraints culties litigants currently face in Assuming such “numerosity,” the that may limit the class actions that the federal courts. Thus, while the 1938 federal class action rule recog- are actually brought in Georgia revision of O.C.G.A. § 9-11-23 con- nized three types of class actions state courts. Moreover, while the stitutes a significant change to the depending upon the “abstract amendment to the statute may lead Georgia class action landscape, the nature of the rights involved:” to greater judicial efficiency, over- ultimate effects and results remain (1) “true” class actions involving sight and predictability, it may also to be seen. joint/common/undivided

26 Georgia Bar Journal rights or secondary rights where adequate notice would be consid- Despite the resolution of this the owner of a primary right ered part of the class and bound by issue, however, the Norman deci- refused to enforce that right; the resolution of that action. In sion left open the question of (2) “hybrid” class actions involv- 1998, the federal class action statute whether this new type of class ing “several” rights relating to was further amended to provide action under Georgia law consti- specific property, and discretionary interlocutory appeals tuted a “spurious” class action, (3) “spurious” class actions shortly after a trial court’s certifica- thereby requiring a party to inter- involving “several” rights but tion order.9 vene in order to be bound, or con- common question(s) and com- During the same year (1966) that stituted the more modern “common remed(ies).4 Congress revised the federal class mon question of law or fact” class As “spurious” class actions do action statute, the Georgia General action which, assuming proper not involve joint rights or rights Assembly enacted the Georgia and sufficient notice, could bind relating to a specific property, the Civil Practice Act and adopted absent class members if they failed former Georgia class action statute much of the Federal Rules of Civil to act upon receipt of that notice. presumed that potential members Procedure as they existed at the Subsequent Georgia cases failed of a “spurious” class lacked any time.10 Notably, however, the to clearly answer this important “jural relationship” with one General Assembly did not adopt question. On the one hand, some another, thereby requiring that a the 1966 version of the federal class lower Georgia courts construed person intervene or “opt-in” to a action statute. Instead, the Georgia the Norman decision as creating a class action and become an actual General Assembly chose both: (a) class action, analogous to a Fed. R. party in order for that person to be to reach back in time and adopt the Civ. P. 23 action, that was binding bound.5 Thus, for “spurious” class federal class action statute that had on all class members without actions, the judgment would be been in effect between 1938 and requiring them to formally inter- “conclusive only upon the appear- 1966; and (b) to exclude “spurious” vene.13 On the other hand, a num- ing parties.”6 class actions altogether. ber of Georgia appellate courts, Because of the limited scope and As one commentator opined, the including the Georgia Supreme effect of “spurious” class actions, Georgia General Assembly, appar- Court, suggested that the Norman the 1938 federal class action statute ently “desiring to limit class decision created a “spurious” class was frequently criticized for failing actions” in Georgia, adopted a ver- action, thereby requiring a party to to achieve the hoped-for efficiency sion of the 1938 federal class action intervene in order to be bound by goals of the class action form. statute which “excis[ed] the . . . any judgment.14 Further, an unexpected result of most commonly used class from the “spurious” class action was the the statute, the class based on The Amendment to creation of a “one-way” system ‘common questions of law o[r] the Georgia Class that permitted absent members of a fact.’”11 In so doing, however, the Action Statute and plaintiff class to enter an action Georgia General Assembly opened its Implications after a determination of liability if the door to many of the same prob- favorable, yet remain outside the lems with which the federal courts Through its adoption of the action if the determination was had previously struggled between text of the federal class action adverse.7 As a result of these and 1938 and 1966. statute of 2003, the new Georgia other criticisms, Congress amend- In 1972, the Georgia Supreme class action statute definitively ed Fed. R. Civ. P. 23 in 1966 to Court in Georgia Investment Co. v. resolved the issue of the nature expressly permit class actions Norman12 corrected one of the and the scope of class actions where “common questions of law “oversights” of the Georgia class under Georgia law. In the new or fact predominate.”8 Moreover, action statute by holding that the Georgia statute, both the modern through the creation of a notice and statute included class actions “common question of law or fact” opt-out procedure, the 1966 federal involving common questions of class action and the notice and rule made clear that absent class law or fact, notwithstanding the “opt-out” procedure are express- members who failed to affirmative- apparent absence of “spurious” ly adopted, thereby implicitly ly act upon receiving sufficient and class actions in the statutory text. rejecting the “spurious” class

October 2004 27 In addition to its potential effects on nation- interpretation of Fed. R. Civ. P. 23 for guidance in interpreting wide class actions being filed in Georgia state Georgia’s class action rule, following the amendment of the Georgia courts, the amendment may also have salu- statute, both parties and courts may be more certain in their appli- tary effects in increasing judicial efficiency, cation of federal authority, which may result in increased predictabil- consistency and predictability. ity and certainty on various issues. action and its attendant limita- action procedure for certain causes Notably, however, this increased tions. Thus, the new Georgia of action. O.C.G.A. § 7-3-29(e) pro- reliance on federal case law may statute has clarified that, where hibits class actions against a “duly also result in incorporating into sufficient and proper notice has licensed lender” for alleged viola- Georgia law some of the same diffi- been provided, all absent class tions of the Georgia Industrial Loan culties that currently plague feder- members may be bound upon cer- Act; O.C.G.A. § 7-4-21 prohibits al class action jurisprudence, tification of the class unless they class actions for alleged violations including, for example, the timely opt-out. of loans secured by interests in real arguably disparate results of feder- At first blush, this clarification of estate; O.C.G.A. § 10-1-36.1 pro- al trial courts in determining the Georgia class action statute hibits class actions for alleged viola- whether common issues predomi- appears to permit the filing of tions of loans or contracts secured nate over individual ones. nationwide class actions in Georgia by interests in motor vehicles; and Finally, in addition to the afore- state courts.15 Moreover, given the O.C.G.A. § 10-1-255 prohibits class mentioned effects, the amendment absence of any minimum jurisdic- actions for violations of the Below of the Georgia class action statute tional amount requirement to Cost Sales Act. These exclusions may also be of significance even in assert claims in Georgia’s State and may make Georgia a potentially the event of ultimate passage of the Superior courts, plaintiffs may less palatable venue than other federal Class Action Fairness Act. view those courts as highly attrac- states as well as set a “precedent” Under the proposed act, federal tive venues in which to assert their for further statutory exclusions. courts would be granted original class action claims. The possibility In addition to its potential effects jurisdiction over class actions of such actions, however, may be on nationwide class actions being where, among other things, the tempered by several factors. First, filed in Georgia state courts, the matter in controversy exceeds $5 unlike the prior Georgia class amendment may also have salu- million and any member of the action statute, the new Georgia tary effects in increasing judicial plaintiff class is a citizen of a state statute expressly requires a court to efficiency, consistency and pre- different from any defendant.18 consider the “superiority” of the dictability. With the statute Although the act failed to pass in forum and the “desirability or expressly providing that a party Congress this year, its enactment undesirability of concentrating the may now seek immediate (albeit would greatly hinder any nation- litigation of the claims in the partic- discretionary) interlocutory appeal wide, multi-state class action from ular forum.”16 As a result, it is like- of a class certification decision, a being brought in any state court, ly a Georgia court will turn a deaf party has a greater opportunity to including Georgia state courts. To ear to the argument, previously challenge a trial court’s decision to the extent that a class action may asserted under the prior Georgia certify a class action prior to the still be asserted under the new statute, that it should consider only taking of extensive discovery and Georgia class action statute, how- the efficiency of a class action ver- trial. This right to challenge a class ever, the increase in the scope of sus individual actions, rather than certification decision may also covered absent plaintiffs under the the efficiency of litigation in result in greater judicial oversight new statute may actually prove to Georgia versus other fora.17 of class certification decisions. be beneficial to defendants by Furthermore, the Georgia Additionally, while Georgia allowing them to resolve issues on General Assembly has expressly courts after Norman have histori- a broad scale in a single class action prohibited the use of the class cally looked to the federal courts’ before a Georgia state court.

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Lawyers Direct is underwritten by Professionals Direct Insurance Company, a licensed and admitted carrier rated A- (Excellent) by A.M. Best. Conclusion lor’s degree, magna cum laude, or compromised without the from Yale University in 1991, and approval of the court. If the right In analyzing the pre-2003 his J.D. from New York University sought to be enforced is one Georgia class action statute and its defined in paragraph (1) of subsec- School of Law in 1995. tion (a) of this Code section, notice accompanying case law, one com- Endnotes of the proposed dismissal or commentator for this Journal noted that, promise shall be given to all mem- as a result of its tortured legislative 1. The Georgia class action statute in bers of the class in such manner as and judicial history, the pre-2003 effect between 1996 and June 30, the court directs. If the right is one 2003, O.C.G.A. § 9-11-23 (1966), defined in paragraph (2) of subsec- Georgia class action rule had states as follows: tion (a) of this Code section, notice become “so confused and uncer- (a) Representation. If persons con- shall be given only if the court tain . . . [that] Georgians have not stituting a class are so numerous as requires it. been able to realize the potential of to make it impracticable to bring The Georgia class action statute them all before the court, such of effective July 1, 2003, O.C.G.A. § 9- the [Georgia] class action them, one or more, as will fairly 11-23 (2003), states as follows: 19 device.” With its recent amend- ensure the adequate representation (a) One or more members of a class ment, the Georgia General of all may, on behalf of all, bring or may sue or be sued as representa- Assembly has substantially clari- defend an action when the charac- tive parties on behalf of all only if: ter of the right sought to be (1) The class is so numerous that fied the nature of the Georgia class enforced for or against the class is: joinder of all members is impracti- action statute and potentially (1) Joint, or common, or secondary cable; (2) There are questions of expanded its reach. It remains to be in the sense that the owner of a law or fact common to the class; seen whether and to what extent its primary right refuses to enforce (3) The claims or defenses of the that right and a member of the representative parties are typical of potential may be realized. class thereby becomes entitled to the claims or defenses of the class; enforce it; or and (4) The representative parties Corliss Lawson is the (2) Several, and the object of the will fairly and adequately protect partner-in-charge of action is the adjudication of claims the interests of the class. the Atlanta office of which do or may affect specific (b) An action may be maintained Lord, Bissell & Brook property involved in the action. as a class action if the prerequisites (b) Secondary action by sharehold- of subsection (a) of this Code sec- LLP. She is a general ers. In an action brought to enforce tion are satisfied, and, in addition: litigator with expertise in com- a secondary right on the part of (1) The prosecution of separate plex insurance coverage litiga- one or more shareholders in an actions by or against individual tion, environmental liability, association, incorporated or unin- members of the class would create premises liability, products liabili- corporated, because the association a risk of: (A) Inconsistent or vary- ty, construction/design defect, refuses to enforce rights which ing adjudications with respect to may properly be asserted by it, the individual members of the class credit fraud, Title VII and general complaint shall be verified by oath which would establish incompati- contracts. Lawson received her and shall aver that the plaintiff ble standards of conduct for the J.D. from Vanderbilt University was a shareholder at the time of party opposing the class; or School of Law. the transaction of which he or she (B) Adjudications with respect to complains or that his or her share individual members of the class thereafter devolved on him or her which would as a practical matter Paul Kim represents by operation of law. The complaint be dispositive of the interests of publicly traded and pri- shall also set forth with particulari- the other members not parties to vately held businesses ty the efforts of the plaintiff to the adjudications or substantially throughout the United secure from the managing direc- impair or impede their ability to States and internation- tors or trustees such actions as the protect their interests; ally in trial and arbitrations con- plaintiff desires and the reasons for (2) The party opposing the class his or her failure to obtain such has acted or refused to act on cerning complex business litigation action or the reasons why irrepara- grounds generally applicable to matters. Kim has represented ble injury to the association, incor- the class, thereby making appro- clients in matters relating to merg- porated or unincorporated, would priate final injunctive relief or cor- ers and acquisitions, securities, result by waiting for 90 days from responding declaratory relief with banking, financial products, the date of the demand upon the respect to the class as a whole; or (3) The court finds that the ques- finance transactions, joint ventures, managing directors or trustees. This Code section is cumulative of tions of law or fact common to the cross-border transactions, insur- Code Section 14-2-831. members of the class predominate ance and reinsurance and intellec- (c) Dismissal or compromise. A over any questions affecting only tual property. He earned his bache- class action shall not be dismissed individual members, and that a

30 Georgia Bar Journal class action is superior to other Code section was directed, and 2. As of its effective date of July 1, available methods for the fair and who have not requested exclusion, 2003, the new O.C.G.A. § 9-11-23 efficient adjudication of the contro- and whom the court finds to be was practically identical to the versy. The matters pertinent to the members of the class. (4) When Fed. R. Civ. P. 23 then in existence. findings include: (A) The interest appropriate: (A) An action may be Effective December 1, 2003, Fed. R. of members of the class in individ- brought or maintained as a class Civ. P. 23 was amended by ually controlling the prosecution or action with respect to particular Congress to require, among other defense of separate actions; (B) The issues; or (B) A class may be divid- things, certification “at an early extent and nature of any litigation ed into subclasses and each sub- practicable time,” rather than “as concerning the controversy already class treated as a class, and the soon as practicable,” and clearer commenced by or against mem- provisions of this rule shall then be guidelines for what a judge must bers of the class; (C) The desirabili- construed and applied accordingly. include in a certification order. The ty or undesirability of concentrat- (d) In the conduct of actions to new federal statute left unchanged ing the litigation of the claims in which this rule applies, the court the standards by which a court is the particular forum; and (D) The may make appropriate orders: (1) to make its determination of class difficulties likely to be encountered Determining the course of proceed- certification or the basic procedure in the management of a class ings or prescribing measures to for notice to absent class members. action. prevent undue repetition or com- Given this article’s focus on those (c)(1) As soon as practicable after plication in the presentation of evi- factors as well as the Georgia the commencement of an action dence or argument; (2) Requiring, General Assembly’s non-adoption brought as a class action, the court for the protection of the members of the recent federal changes, this shall determine by order whether of the class or otherwise for the fair article does not address in further it is to be so maintained. An order conduct of the action, that notice be detail the December 2003 amend- under this subsection may be con- given in such manner as the court ment to the federal class action ditional, and may be altered or may direct to some or all of the statute. amended before the decision on members of any step in the action, 3. Fed. R. Civ. P. 23 (1938). the merits. (2) In any class action or of the proposed extent of the 4. Id.; see also, Advisory Committee maintained under paragraph (3) of judgment, or of the opportunity of Notes to the 1966 Amendment of subsection (b) of this Code section, members to signify whether they Fed. R. Civ. P. 23. the court shall direct to the mem- consider the representation fair and 5. Herring v. Ferrell, 233 Ga. 1, 4-5, bers of the class the best notice adequate, to intervene and present 209 S.E.2d 599, 601 (Ga. 1974) practicable under the circum- claims or defenses, or otherwise to (Hall, J. dissenting) (quoting 3B W. stances, including individual come into the action; (3) Imposing MOORE, FEDERAL PRACTICE §§ notice to all members who can be conditions on the representative 23.10, 23.601 (2d ed.)). identified through reasonable parties or on intervenors; and (4) 6. Benjamin Kaplan, Continuing effort. The notice shall advise each Requiring that the pleadings be Work of the Civil Committee: 1966 member that: (A) The court will amended to eliminate therefrom Amendments of the Federal Rules exclude the member from the class allegations as to representation of of Civil Procedure, 81 Harvard L. if the member so requests by a absent persons, and that the action Rev. 356, 378 (1967). specified date; (B) The judgment, proceed accordingly. The orders 7. Id. at 385. whether favorable or not, will may be combined with other 8. Fed. R. Civ. P. 23 (1966). include all members who do not orders, and may be altered or 9. Fed. R. Civ. P. 23 (1998). request exclusion; and (C) Any amended by the court as may be 10. 1 GEORGIA PROCEDURE COURT member who does not request desirable from time to time. SYSTEM AND TYPES OF exclusion may, if the member (e) A class action shall not be dis- ACTION, § 6-1 (2004). desires, enter an appearance missed or compromised without 11. Id. through counsel. (3) The judgment the approval of the court, and 12. 229 Ga. 160, 190 S.E.2d 48 (1972). In in an action maintained as a class notice of the proposed dismissal or Norman, the court acknowledged action under paragraph (1) or (2) compromise shall be given to all that the rights in question were: (a) of subsection (b) of this Code sec- members of the class in such man- not joint because each depended on tion, whether or not favorable to ner as the court directs. separate contracts with the defen- the class, shall include and (f) The appropriate appellate court dants; (b) not derivative as the par- describe those whom the court may in its discretion permit an ties themselves directly owned the finds to be members of the class. appeal from an order of a trial rights, not others who refused to The judgment in an action main- court granting or denying class enforce them; and (c) not several, tained as a class action under para- action certification under this Code but relating to or affecting specific graph (3) of subsection (b) of this section if application is made to it property. Despite having apparent- Code section, whether or not within ten days after entry of the ly ruled out all of the statutorily favorable to the class, shall include order. An appeal does not stay pro- specified bases for class certifica- and specify or describe those to ceedings in the trial court unless tion under O.C.G.A. § 9-11-23 whom the notice provided in para- the trial judge or the appellate (1966), the Norman court turned to graph (2) of subsection (b) of this court so orders. an interpretation of the word “com-

October 2004 31 mon” which was set forth in the “clouded the issue by discussing a 15. Cf., Cheminova America Corp. v. definition of a “true” class action. possible requirement that class Corker, 779 So.2d 1175 (Al. 2000) While it was generally accepted in members intervene in class suits in (applying practically identical federal jurisprudence that the defi- contravention of the opt-out proce- Alabama state class action statute nition of “common” rights in the dure provided in [Rule 23](b)(3) to affirm certification of nation- 1938 Fed. R. Civ. P. 23 referred to cases.”); Sta-Power Industries v. wide class asserting claims of rights that were undivided, as Avant, 134 Ga. App. 952, 959, 216 defective skin care product opposed to individual, the Georgia S.E.2d 897, 959 (Ga. App. 1975) against, among others, Spain- Supreme Court in Norman (permitting plaintiffs to intervene based manufacturer and Florida abstracted the word “common” after imposition of default judg- based distributor). from its text and provided it with ment against defendant); Herring 16. O.C.G.A. § 9-11-23(b)(3)(C) (2003). new meaning: according to the v. Ferrell, 233 Ga. 1, 4-5, 209 S.E.2d 17. See, e.g., McGarry v. Cingular Norman court, class certification 599, 601 (Ga. 1974) (Hall, J. dissent- Wireless, LLC, 2004 WL 574864 for “common” rights may be ing); See, also, Jeffrey G. Casurella (Ga. App., Mar. 24, 2004). appropriate where there exist and John A. Bevis, Class Action 18. See, S. Res. 2062, 108th Cong. “common” questions of law or fact Law in Georgia: Emerging Trends (2004). and common relief is sought. 229 in Litigation, Certification and 19. Dean S. Daskal and S. Ross Ga. at 161, 190 S.E.2d at 50. Settlement, 49 Mercer L. Rev., 39, Mansbach, Class Struggle: The 13. See, e.g., Ford Motor Credit Co. v. 54-58 (Fall 1997) (noting that “there Troubled History of the Class London, 175 Ga. App. 33, 36, 332 is an argument that Georgia’s rules Action in Georgia, Ga. Bar Journal, S.E.2d 345, 347 (Ga. App. 1985). on class actions, unlike their feder- 34, 38 (April 1998). 14. See, e.g., Tanner v. Brasher, 254 Ga. al counterparts, do not allow 41, 45, fn. 4, 326 S.E.2d 218, 221(Ga. absent members to be bound by 1985) (noting that subsequent rul- settlements about which they ings by the Georgia courts had know nothing.”).

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32 Georgia Bar Journal GBJ feature

A Slice of Life The Daily Practice of 11 Georgia Lawyers By Johanna B. Merrill and Sarah I. Bartleson In order to find out, the Georgia Michael Landau realized that e live in a culture Bar Journal glimpsed into the work both his personality and “body lives of real attorneys. We followed clock” were better suited to teach- where Law & a day in the life of 11 Georgia ing. “I love everything about Order is a brand lawyers during the week of July 19- teaching, with the exception of W 23. Here are their stories. one thing—grading exams,” unto itself and daytime television is Michael Landau Landau said. “I love the inde- pendence, autonomy and free- filled with sassy judges on the bench. Professor, Georgia State dom. I enjoy meeting new stu- Even with the surging popularity of University School of Law dents year after year. I enjoy speaking at conferences, literally, CourtTV, and real-life defendants all over the world. I feel very like Scott Peterson and Kobe Bryant lucky to have a job that does not feel like work—except for grad- standing trial on our televisions, the ing exams.” On July 19, Landau didn’t have day-to-day practice of law remains, any exams to grade, due to sum- to some, a mystery. mer break, so he arrived at his office on campus around 10 a.m. And perhaps not just to the “My days, in general, begin on public, but to other attorneys as the late side,” he said. “I tend to be well. Can those attorneys in small a bit of a night owl.” Around 11 or solo practice connect to the a.m. he spoke with an attorney in first-year associate in an Atlanta Florida regarding the possibility of mega-firm? Can in-house counsel being an expert witness in a “right relate to the daily work life of a of publicity” case. public defender? Or perhaps After several years in private Monday was “a good day” for across practice areas, employers practice in New York with the Landau. He finished a manuscript and geography, the daily lives of firms of Cravath, Swain & Moore for a new edition of Lindey on lawyers aren’t so different from and Skadden Arps, Professor Entertainment, Publishing and the each other after all.

October 2004 33 Arts: Agreements and the Law, and Mirtha Estrada At 11:30 a.m., Estrada realized overnighted it to his publisher. He Assistant Public Defender, that the only way she would finish also finished editing an article Office of the DeKalb Public the jail list (the list her office sends regarding copyrights, trademarks Defender to Recorder’s Court of people being and artistic attribution for an held in jail on tickets for county English journal, The International ordinance violations) was to skip Review of Law, Computers, and lunch and come back to the office Technology. The article will be pub- after court that afternoon. lished in November. Later in the After a lunch of pizza at her desk, day, Landau had a discussion with she began updating the jail list. At 3 his editor at a publishing company p.m., a woman came to her office to regarding the possibility of market- discuss one of the men on the list. ing certain U.S. books to European The woman’s boyfriend had been in lawyers. “I have spoken at several jail for more than a month, charged conferences in Europe in which with loitering for drugs. Estrada ran U.S. intellectual property law was his Recorder’s Court tickets and his discussed at length, yet the legal criminal record and added him to publishers did not seem to be con- her client list for the next day. centrating on that market,” he said. Estrada left at 4:15 p.m. for Because it was summer, Recorder’s Court, where officers Landau said this wasn’t a typical Every day when Mirtha Estrada prosecute their own tickets. While day. Not only were there no class- arrives at the DeKalb County there she picked up six new affi- es to teach, but he was also Public Defender’s office, she stops davits requesting an assistant public preparing to leave for vacation, so to read a line from the Sixth defender and left her requests for he was busy finishing projects. Amendment that is posted in the pretrials with the clerk for each However, he said many things lobby. It reads “In all criminal pros- courtroom. Before leaving, she about the day were typical. “On ecutions, the accused shall. . .have noticed a young Hispanic man who any given day I spend a good deal the assistance of counsel….” didn’t speak English. She didn’t of time working on articles and Estrada said, “The work is have too many clients that night, and books and preparing for confer- always stressful, the clients are since he’d been in jail for 30 days and ence presentations,” he said. He often difficult, and the hours are qualified for assistance, she added left the office around 4:30 p.m. erratic, but that quote is the reason him to her list of pretrial requests. Landau has taught at Georgia we all keep coming back.” She then met with each of her clients State since 1993 and is currently the On July 20 she arrived a little later to review their facts and go over pos- head of the Intellectual Property, than usual, at 10:15 a.m., as she stayed sible scenarios while they waited for Technology, and Media Law home that morning to work without the judge to call the cases. Curriculum Group. He has also interruption on a felony appeal that At 6:30 p.m. Estrada was excused been a visiting professor or scholar has been pending since 2001. Once at from court, as all her cases had been at the University of Georgia, her desk, she reviewed e-mail, printed resolved. Two were dismissed for University of Amsterdam, Louisiana out jail list requests and answered her want of prosecution because the offi- State University and Pennsylvania messages. She also conducted client cers did not show up. The last case State University. Landau earned a interviews that included: an 18-year- was the high point of Estrada’s day - bachelor’s degree in economics from old single mother trying to finish the resolution of the young Hispanic Pennsylvania State University in school whose speeding ticket could man’s case. He is a day laborer and a 1975 and a juris doctorate from the cost her her license; a Cuban refugee three-year U.S. resident, and had University of Pennsylvania in 1988. ticketed for public intoxication who is already been held in jail for 30 days He was admitted to the New York worried that the charge might prevent on a ticket. He and his family were Bar in 1989 and has been an affiliate him from becoming a resident; and a unable to pay his bond, which is usu- member of the State Bar of Georgia father regarding his teenage son who ally set approximately 30 percent since 1994. was ticketed and arrested for loitering. higher than the cost of paying the

34 Georgia Bar Journal ticket. To further complicate matters, Patricia Barmeyer started her and regulatory compliance and liti- his ticket was missing. The officer day at 6 a.m. by participating in an gation, representing a broad range finally agreed to release him, since aerobics class. She arrived at her of public and private entities. She they couldn’t prosecute without the downtown office before 8:30 a.m., graduated from Harvard Law absent ticket. Estrada said, “I felt where she spent the first 15 min- School cum laude in 1971 and good about that, because if I had not utes reviewing e-mails, reading the earned a bachelor’s degree from been there to follow up on his case, Fulton County Daily Report and Hollins College in 1968. She was there is a good chance he would have daily environmental reports. admitted to the State Bar of just been taken back to jail and held Barmeyer said that while she likes Georgia in 1972. there until his ticket was found.” the fact that her practice involves a Laquetta S. Pearson Estrada returned to her office wide variety of matters and cases, Associate, Lisa R. Roberts after court to finish the jail list. She it is sometimes challenging to jug- added eight new requests for a gle multiple clients. On July 20, and Associates P.C. court date or bond, recorded six Barmeyer assisted six separate duplicate requests, and checked on clients with environmental matters each of the previous 35 requests. At throughout the course of the day. 8:30 p.m. she faxed the list to the At 11 a.m. she spoke with a coastal court and headed home. property owner regarding permit- “I believe my work matters ting issues, and at 2 p.m. she par- because, every once in a while, I truly ticipated in a conference call with a make a difference,” Estrada said. government agency official con- Estrada earned her law degree cerning recent groundwater sam- from the University of Miami and pling results. She also participated her undergraduate degree from in an internal meeting to distribute the University of Michigan. She the firm’s charitable contributions. joined the public defender’s office The high point of her day was a in November 2003 after three call from a former client, now gen- years as an associate with King & eral counsel of a major transporta- Spalding LLP. She was admitted tion company, asking the firm to to the Bar in 2000. assist her company on environ- As a child, Laquetta Pearson Patricia Thrower mental issues nationwide. The low knew she wanted to be an attorney. point was hearing news that her In her first job out of law school, Barmeyer good friend, Lonice Barrett, would her wish has come true. Her first Partner, King & Spalding soon be leaving his position as undertaking upon arriving at the LLP—Tort Litigation and commissioner of the Georgia office at 8:30 a.m. was to work on Environmental Practice Group Department of Natural Resources responses to a corporate client’s to take on an important new answer to a cross-claim. However, assignment for Gov. Sonny Perdue her primary area of practice is civil as head of the Commission for a law. On July 20 she worked on sev- New Georgia. Barmeyer said, “This eral custody cases, a worker’s com- was a pretty typical day for me. I pensation claim and a divorce. deal with multiple clients and mat- Pearson said one of the things she ters in any given day, and I stay on enjoys most about her job is “the the telephone much of the day.” ability to actually help clients by Barmeyer joined King & doing something so simple as mak- Spalding in 1990 after serving for ing a phone call or writing a letter, 17 years as an assistant attorney and they tell you that you made a general for Georgia. Her practice is difference.” A real-life example of exclusively in environmental law this feeling put into practice was the and includes both environmental highlight of Pearson’s day:

October 2004 35 “A woman called seeking Bettina Wing-Che Yip high point of her day was finding advice about recovering arrearage Labor and Human favorable precedent for an upcom- child support and discussed how Resources Counsel, ing arbitration, while the low point difficult her ex-husband was Cingular Wireless LLC was not finding favorable witness- being in regards to payment. I es for an upcoming arbitration. advised her that she could proba- Yip said July 21 was a typical bly handle her own motion for day. “My days are pretty frenetic contempt, since she has filed sev- and fast-paced, with questions eral in the past, and the same pat- coming in from clients about differ- tern of non-payment is recurring,” ent areas of labor and employment Pearson said. “The conversation law.” She left the office at 6 p.m. ended with her telling me I was an and went to the gym before going angel for helping her.” home. Her day ended in much the On the flip side, Pearson said same way that it began—with her that it is often difficult when she BlackBerry. has clients who are emotionally Yip has been with Cingular since volatile, especially in family law March 2003. Her previous employ- matters, and they call and take it ers were Meadows, Ichter and out on their attorney. Sometimes Bowers (now Balch & Bingham she has to deal with difficult mat- LLP) and King & Spalding LLP. ters, such as the phone call that She graduated from Columbia was the day’s low point: she Bettina Yip starts and ends her University School of Law in 1999 spoke with a client who was day with a constant companion— after completing her bachelor’s “concerned that her ex-husband her BlackBerry handheld. Before degree at Wellesley College. She may be doing something inap- arriving at headquarters on the was admitted to the State Bar of propriate to their child and he Glenridge Connector at 8 a.m., her Georgia in 1999. first task was to check her refuses to allow her visitation Christine M. Morgan with the child. She began to cry BlackBerry for e-mails sent during Senior Associate, Jones Day in my office and it made my heart the night. The bulk of her workload go out to her.” is communicating with clients both Pearson said July 20 was char- over the phone and e-mail as well acteristic of her normal work- as in person. One of her morning days. “I usually take several calls client conversations regarded a from clients, provide legal coun- complaint of alleged religious dis- seling, talk with opposing coun- crimination. Her day went on to sel and try to resolve preliminary include conversations on the topics issues.” Before leaving her of upcoming mediation, concur- Newnan office at 5:30 p.m., she ring with terminations of employ- and her boss, Lisa R. Roberts, ees and meeting with staff concern- met for their daily discussion of ing paid and unpaid interns. the matters and events of the At noon, Yip ate a quick lunch day. Later she met with her per- she brought from home before con- sonal trainer before going home tinued conference calls and in-per- for the night. son meetings with clients. “I nor- Pearson earned her juris doctor- mally no longer go to court, as we ate from the Walter F. George usually just manage litigation per- Chris Morgan may be on a School of Law at Mercer University formed by outside counsel,” Yip reduced-time schedule, but she and her undergraduate degree said. “However, we do take part in isn’t a reduced-time attorney. She from Clemson University. She was mediations, labor arbitrations and arrived at the firm’s new midtown admitted to the Bar in 2004. magistrate court hearings.” The offices around 6:45 a.m., but one or

36 Georgia Bar Journal two days a week she comes in a lit- Sandra L. Brown music, with making a living—and I tle before 8 a.m. so she can eat Of Counsel, Medley & accomplished that goal. My current breakfast with her boys, ages 3 and Kosakoski, LLC position has not only allowed me 1. For most of the morning and after to work for an entertainment lunch, Morgan worked on strategy group, but has also positioned me analyses, drafted correspondence, to handle matters for some of the reviewed reports and spoke with most amazing musical talent in the clients. At 11 a.m. she met with industry, including hit producers Charles Perry, a partner with Jones and recording artists.” Day, about a client matter. Morgan On this Thursday in July she says that her unconventional sched- arrived at the office at 10 a.m., after ule is possible due to the legal team checking her BlackBerry and partic- she works with, which includes ipating in a conference call with a Perry, Of Counsel John H. Grady, client from her home. At 11 a.m. she and her legal assistant, Janie Allen. drafted a letter to a director at a “This teamwork and administra- record label and sent him a demo tive support have been key factors CD of an unsigned artist at his to a successful reduced hours request. The rest of the morning arrangement,” she said. “Our was spent in telephone conferences group works very well as a team and drafting correspondence. After and we cover for each other if need- Sandra Brown never planned on a sandwich from her favorite shop, ed when urgent matters arise.” being anything other than an attor- My Friend’s Place, Brown spent the While Morgan said July 21 was ney, but it wasn’t until her first year afternoon and evening participating an average day without any major of law school that she realized she in several telephone conferences highs or lows, she and her team wanted to focus on entertainment with clients and opposing counsel. did resolve a case strategy issue law. She believed that the substan- She left the office at 8:30 p.m. that had been challenging them for tive business of bringing music to Brown’s day was typical, as her several months. Morgan is in the the masses had to be interesting, workdays revolve around contracts office five days a week to ensure and her career has proved her right. that need to be either reviewed or continuity in her cases, but she A visit to Brown’s office leaves drafted on behalf of a client. She typically leaves the office between little doubt as to who some of her said that agreements are very often 1 and 3 p.m. However, she checks clients are, as the walls are covered negotiated at the last minute in in several times an afternoon from with gold records and artist order to meet deadlines for promo- home to address and put out any plaques. tional or commercial release. On a “fires.” For example, on July 21 she “I love music,” Brown said. “I not-so-typical day, one might find left the office at 1:30 p.m., but par- simply set out to combine a her jetting to Los Angeles or New ticipated in a client conference call favorite pastime, listening to York for awards shows or client from 2:30 to 4:30 p.m. before pick- ing up her children. Morgan completed her undergraduate studies at Davidson College, where she became attract- ed to environmental law. She attended Vermont Law School, one of the top schools for those interested in a career in environmental law. Before moving to Jones Day in 2003, she was an associate with Hunton & Williams in Atlanta. Morgan was admitted to the Bar in 1995.

October 2004 37 appearances. On June 28 she spent Rowden said she enjoys her practice with the a day in Los Angeles to attend the American Society of Composers, Army Corps because “environmental law Authors and Publishers (ASCAP) Urban Music Awards. On August brings me into contact with the full spectrum 27, she was in Miami for the Broadcast Music, Inc. (BMI) Urban of individuals, groups, agencies, universities Music Awards. After law school, Brown was and governmental departments that seek to hired as the associate director of business affairs for So So Def address matters of environmental concern.” Recordings Inc., a joint venture company with Sony Music, Inc., On July 22 Rebecca Rowden Rowden said she enjoys her prac- owned by Jermaine Dupri. In 2000, arrived at the Office of Counsel for tice with the Army Corps because she joined the entertainment group the U.S. Army Corps of Engineers “environmental law brings me into of Greenberg Traurig, LLP, as Of in the Savannah District at 7 a.m. contact with the full spectrum of Counsel, where she spent four “I am on a compressed work individuals, groups, agencies, uni- years as primary legal counsel for schedule, which means I work nine versities and governmental depart- various entertainers, entertainment hours a day for nine weekdays and ments that seek to address matters companies and joint ventures have every other Friday off,” she of environmental concern. It also before moving to Medley & said. Her first daily tasks were to provides me with the opportunity Kosakoski, LLC. Brown earned her read and answer e-mails, check her to visit diverse aquatic and wildlife undergraduate degree from Nova inbox for mail and review her habitat sites across the state.” Southeastern University in 1991 schedule for the day. At 2 p.m., Rowden traveled with and her juris doctorate from Her morning was filled with a several regulatory branch project Florida State University’s College review of a drafted letter to U.S. managers to a site near Savannah to of Law in 1994. She was admitted Congressman Jack Kingston view wetlands that may or may not to the Bar in 1995. regarding a constituent inquiry to a be isolated. “The determination as Rebecca A. Rowden wetland permit; a document to isolated wetlands is important review for the Regulatory Branch; a because it determines whether the Assistant District Counsel, meeting with staff from the Army Corps has jurisdiction over U.S. Army Corps of Regulatory Branch, Environmental the wetlands or not,” Rowden said. Engineers, Savannah Protection Agency, U.S. Fish and She wore hiking clothes and boots District Wildlife and the Georgia to work that day in preparation for Department of Natural Resources the site visit. Trips like this occur (this group makes up the about once a month, and she also Mitigation Banking Review Team travels to branch offices approxi- in Georgia). mately every two months and For lunch she grabbed food at works out of those offices for sever- the snack bar and came back to her al days. Otherwise, July 22 was a office, where she reviewed a settle- typical day for Rowden. She arrived ment agreement on an enforcement back at the Corps offices around action whereby a landowner filled 4:30 p.m. before heading home. wetlands without a permit in viola- Rowden attended Samford tion of the Clean Water Act. After a University in Birmingham, Ala., for discussion with a project manager, her undergraduate degree and they determined that the agree- earned her juris doctorate from the ment was ready to be sent to the University of Richmond. She was property owner for signature. admitted to the Bar in 1991.

38 Georgia Bar Journal Bertis Downs for the music group R.E.M. and year to emerge from law school in General Counsel for teaching at the University of those areas. Luckily, the band was R.E.M./Adjunct Professor, Georgia School of Law. July 23 was starting up and the law school University of Georgia no different. offered me a teaching job. I have School of Law Since the mid-1990s, Downs only been fortunate to combine those teaches based on his availability. two jobs ever since.” When he does teach, it is a four- R.E.M. is preparing to release a minute walk between the R.E.M. new record and go on tour to sup- office in downtown Athens and the port it. “There is a lot of planning law school. He likes to teach 8:30 and coordination that goes on in a.m. classes, because then he making sure all goes well,” Downs knows the students want to take said. “Some of that involves band his class, not just fill a convenient work, dealing with record label per- slot in their schedule. While teach- sonnel and dealing with other things ing, his days aren’t that different— at the office. My job is to know all he just starts the R.E.M. portion of that is going on and make sure that his day a little later. He says teach- it gets done in a timely fashion— ing is important to him because it which can be a challenge.” keeps him around younger, more When asked about the favorite nimble minds in a fast-changing part of his job, Downs answered, world and business. “All of it is intellectually challeng- “After college, I wanted to go ing, and I know I am fortunate to Since 1981, Professor Bertis into legal services or poverty law,” have had such a good relationship Downs has split his time working Downs said. “1981 was not a good with the band over the years.” His

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October 2004 39 least favorite aspect? He doesn’t associate at the Black Arts Festival William H. “Beau” like all of the travel now that he has at Underground Atlanta to watch McClain young children. the performance of an entertain- Chief Assistant District Downs said a typical day is spent ment client. Upon his return to the Attorney, Douglas Judicial talking on the phone and e-mailing office, he conferred with another Circuit clients. July 23 was no different, partner to discuss a substantive with the exception of having lunch brief, which he filed later that day. with his good friend Dan Coenen, a Unfortunately, after the brief was fellow UGA law professor. Then it filed, he lost his keys somewhere was back to the phone and his iMac near the Fulton County for more calls and e-mails. Courthouse! (He later found them.) Downs earned his juris doctorate After leaving the office at 6:30 from the University of Georgia p.m., Seymour met a client for din- School of Law in 1981 and his ner. Following their meal, he met undergraduate degree from David- with a different client at the son College in 1978. He was admit- Atlantis Music Conference to dis- ted to the Bar in 1981. cuss and watch the client’s per- Stanley A. Seymour formance. Following the show, Seymour spoke with the artist and Associate, Kilpatrick repertoire representatives from a Stockton LLP – Commercial major record label about a possible Litigation Practice Group deal for the client. Seymour said, “It is not every day that an enter- Beau McClain arrived at the tainment client performs in Douglas County Courthouse, where Atlanta, as most of them are out- the DA’s offices are located, at 7:30 side Georgia, so it was a treat.” a.m. on July 23. On days when he Seymour said he spends his days isn’t scheduled to appear in court, working on briefs, meeting with McClain spends his time on the clients, preparing for depositions, phone, working files and visiting collaborating with partners and local law enforcement agencies, so preparing for hearings, so July 23 this Friday was a “very typical” day. was a typical day for him. “What I Around 8 a.m. he met with a love about practicing at a large law woman whose daughter is in jail on firm is how each matter always pres- a methamphetamine trafficking ents some legal issue or involves charge. McClain said this meeting subject matter that is different and was the low point of his day, as the unique from case to case. There is woman cried in his office and he always something different going had to “tell her the truth about the Stan Seymour arrived at on, or at least there is the potential situation instead of telling her Kilpatrick Stockton’s downtown for such,” he said. “Plus, I really something to make her feel better.” offices on Peachtree Street at 7:30 enjoy the people I work with.” Later in the morning he spoke with a.m., and his first task was to work Seymour attended Howard a detective regarding an ongoing on questions for upcoming deposi- University School of Law and mortgage fraud case and another tions in Louisiana. Later in the earned his law degree in 2001. His assistant district attorney about a morning, he met with a partner to undergraduate years were spent at home invasion and robbery case, discuss additional attorney Northwestern University, where and he put in a call regarding a involvement in charitable, commu- he completed a bachelor’s degree drug case and worked out a plea. nity activities, which are strongly in Speech Pathology in 1997. He Around 12 p.m., McClain went to encouraged at the firm. After was admitted to the State Bar of lunch with a friend who is a juve- lunch, Seymour joined a summer Georgia in 2002. nile court prosecutor.

40 Georgia Bar Journal In the afternoon, McClain had several conversations with law enforcement officers and investiga- tors concerning pending cases. He met with a detective regarding a murder case, followed by two tele- conferences with other officers Unlockyour regarding an assault case and a drug investigation. The day ended with a meeting with the DA’s investigator regarding a fraud case. Before departing the office at 6:55 p.m., he reviewed Potential documents related to the fraud case. Sign up for the Women & Minorities in the McClain said the thing he enjoys Profession Committee’s Speaker Clearinghouse most about his job is being able to help people in difficult—and often tragic—situations. “A few years ago I prosecuted a group of defendants who were involved in the home invasion of a man they believed to be a drug dealer. This man was brutally beat- en and his family and small children were terrorized. Because of his race and the belief he was a criminal, he did not think the system would do anything. When the jury convicted the perpetrators, the victim started crying and gave me a big hug and said ‘Thank you for About the Clearinghouse fighting for my family,’” McClain The Women and Minorities in the said. “Those sort of moments make Profession Committee is committed to the job worthwhile.” McClain attended the Emory promoting equal participation of minori- University School of Law where he ties and women in the legal profession. completed his juris doctorate in The Speaker Clearinghouse is designed 1981. He also earned a bachelor’s specifically for, and contains detailed infor- degree from Emory in 1978. mation about, minority and women lawyers McClain was admitted to the Bar in who would like to be considered as faculty 1981. members in continuing legal education pro- Johanna B. Merrill is the section grams and provided with other speaking opportu- liaison for the State Bar of nities. For more information and to sign up, visit Georgia. www.gabar.org/speakerbarcheck.asp. To search the Speaker Clearinghouse, which provides contact infor- Sarah I. Bartleson is the assistant director of communications for mation and information on the legal experience of the State Bar of Georgia. minority and women lawyers participating in the program, visit www.gabar.org/speakersearch.asp.

October 2004 41 GBJ feature

Standing Up for the Legal Profession By Judge Toby Prodgers

“noblest of profes- here are many within sions.”1 Everyone who is engaged within it the legal profession should be proud of it who agonize over the and stand up for it. The T lawyer’s duty is to act as public’s perception, or mispercep- professionally as possi- tion, of lawyers. They tend to ble, and the public’s image of the profession attribute negative perceptions to will take care of itself. The word “profes- lawyer misconduct and believe sionalism” does not simply that lawyers should just appear in Black’s Law Dictionary because it is learn how to act. They feel the need not a legal term. Instead, it is a generic term to apologize for the profession and which refers to the “sta- their role in it. They are timid about tus, methods, character or standards” of a pro- their status as lawyers. For those fession.2 In order to under- who feel that way—get over it! The stand what we mean by public will never fully understand the term “professionalism,” we need to under- or appreciate this profession. We stand the particular profession we and its standards are unique. So are talking about. The “status, what exactly is the essential nature should not expect them to. There methods, character or standards” of of the legal profession? are limits on our ability to affect the the legal profession differ greatly The American legal profession is from those of such other professions the only profession outside of the public’s opinion. as wrestling, medicine, fortune press or the military that is includ- However, the legal profession telling, accounting, acting and horse ed in the federal constitution. It is remains without a doubt the trading. Each profession is unique, constitutionalized in the form of the

42 Georgia Bar Journal Sixth Amendment’s guarantee of it, a baby boomer or generation Xer, flicts and passions without destroy- the right to counsel. We must there- wealthy or poor, healthy or not. ing ourselves or the primacy of the fore look at lawyering in its consti- The number of groups, causes individual. At the national level, our tutional context, especially in the and issues is immense, especially collective passions either in favor of context of one of the great themes of in a society whose constitution or against the incumbent govern- the Constitution, that is, the man- places its primary value upon the ment grow as time goes on. The agement and resolution of conflict. interests of the individual as framers decided that we should The framers recognized that con- opposed to those of the state. In the engage these conflicts and vent flict is inherent in the nature of American system, the propensity these passions by way of a process humankind. The proclivity of toward conflict is exacerbated by called elections. Every four years we humans to engage in conflict is infi- the fact that individuals are fight mightily for the hearts and nite. We encounter conflict involv- encouraged to compete in pursu- minds of similar thinkers and have ing intimate personal relationships ing their opportunities. We com- a resolution in the form of an elec- among family, friends and neigh- pete for the same resources, includ- tion. We do the same as the impact bors. We encounter conflict at the ing money, space, time and things. of government gets closer and clos- local, state, regional, national and The framers also recognized that, er to home, and we engage in state international levels. We encounter in addition to our propensity for and local elections to resolve dis- conflict among groups. Humans are conflict, we humans possess anoth- putes as to the composition and notorious group joiners and group er great characteristic—passion. We policies of local government. identifiers. Depending on what is pursue our opportunities passion- But most conflicts among important to a person, he or she can ately. We protect and promote our humans are resolved by other be a member of a race, a gender, a families, community and country processes. Historically, these dis- generation, an ethnic group, a reli- passionately. We love the Braves putes have been resolved by force. gion, a family, a neighborhood, a and hate the Mets (or vice versa). They have been resolved in the OK city, a county, a state, a region and a For most of us, there is great pas- Corral, in the back alley, and nation. He or she may also be a sion behind every one of our rela- according to which side had the Democrat or a Republican, a tionships, ideas, groups or issues. most power or men under arms. Bulldog or a Yellow Jacket, a football The framers understood that We no longer do it this way. In our fan or a soccer fan, an English speak- these passions cannot, and should system the battlefields have been er or a Spanish speaker, a business not, be controlled by the state. replaced with courthouses. It is in owner or an employee, from here or Instead, they created an extraordi- the courthouses where serious not. He or she may be a liberal or a nary process, at several levels, human conflicts are resolved. The conservative, for the war or against where we can fully engage our con- rest of the landscape is safe ground. SOUTH GEORGIA ADR SERVICE, LLC

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October 2004 43 Several years ago, former Chief Judge Watson L. White of the Superior Court of Cobb County offered his observation at a Cobb Bar Association meeting that, largely because of the nature of the adversary system and of the scrutiny to which they are subject, lawyers are more honest, more diligent and more reliable than members of any other profession or group.

There was a movie a few years powerful nation in the history of actors in the general population ago called Braveheart starring Mel earth! With lawyers, not warriors. and some of them do find their way Gibson. The story was set in the How far civilization has come! Yet into the legal profession, just as 14th century and involved a huge some in the public and in the media they do all other professions. But battle to determine who would criticized these magnificent that should certainly not be an govern Scotland. The two opposing lawyers. There was criticism that indictment of the profession itself. forces, adorned in war paint, over $13 million was spent in legal On the contrary, there is no more hurled themselves at each other in fees as though the price of this reliable group of people than those a savage encounter on the field of great process was too much. But lawyers who labor within the adver- battle. They slashed and killed each nobody criticized the Texas sary system. This is due to the great other. The victors rampaged Rangers that same month when scrutiny to which they are subjected. through the countryside raping, they agreed to pay a quarter of a A lawyer is subject to the intense pillaging and burning. billion dollars to sign a shortstop.3 scrutiny of the client, of the adverse We fast forward some 600 years to There exists a vast amount of party, of the adverse lawyer, of the another great battle, this one for con- both substantive and procedural judge, and of the disciplinary trol of the government of the United law that has been developed over authority of the State Bar, not to States, the most powerful nation in generations by thoughtful men and mention his or her malpractice carri- the history of the world. This battle women to resolve the criminal and er. Several years ago, former Chief took place not on a bloody battle- civil disputes we find ourselves Judge Watson L. White of the field, but in Tallahassee, Fla., in a involved in. Lawyers provide us Superior Court of Cobb County small courtroom where the air condi- with access to these laws so that we offered his observation at a Cobb tioning was not working. Instead of can engage on a level playing field. Bar Association meeting that, large- generals and soldiers with spears Lawyers also plug us into opportu- ly because of the nature of the adver- and arrows, this battle was fought by nity. This is a land of opportunity. sary system and of the scrutiny to lawyers with briefcases. Court was We are not dependent upon a dis- which they are subject, lawyers are called to order promptly at 9 a.m. All passionate and disinterested more honest, more diligent and the lawyers stood when the judge bureaucracy to advise us regarding more reliable than members of any entered the room. When one lawyer the laws which govern our under- other profession or group. That is stood to speak the opposing lawyer takings as we pursue opportunities because they have to be. would sit silently. When finished in the free enterprise system. Lawyers must understand that speaking the lawyer would sit down, All lawyers cringe when news the public will not necessarily and it would be the other lawyer’s emerges of dishonest or criminal appreciate their value or how criti- turn to stand and speak. When the conduct by another lawyer. It does cal they are to the proper function- arguments were finished, the happen, but such conduct is ing of our society. This is largely lawyers rose, the judge left the extremely rare. The problem with because, as indicated above, the bench, and the world peacefully the legal profession in this regard is lawyer’s milieu is human conflict. awaited the decision. that lawyers are drawn from the People understandably associate What a way to fight a battle for general population of human lawyers with conflict. Although control of the greatest and most beings as a whole. There are bad people are constantly involved in

44 Georgia Bar Journal conflict, they generally do not like The Lawyer’s mation is often the client, and that it. It is essential, therefore, that Relationship with the the client is not always reliable. The lawyers assist in the management prosecutor should know that the of conflict without creating it or Other Lawyer lawyer is, in most cases, working making it worse. In this regard, The lawyer’s relationship with the with limited resources. The prose- perception is frequently more adversary is critical and seems to be cutor should understand that court important than reality. the crux of professionalism within appearance conflicts are real and Professional conduct is therefore the legal profession. A lawyer is so are an expected part of any busy an indispensable element of the much more appealing and persua- trial practice. The prosecutor gets profession. And, just as important, sive when he or she treats the adver- to go to the same courthouse and professional conduct enhances sary lawyer with dignity and park in the same place every day. advocacy and frequently has an respect. Trial judges can usually tell, The defense lawyer does not. The impact on the outcome of a case. or at least guess, when there have prosecutor is generally assigned to The lawyer’s conduct and been difficult encounters between demeanor can evoke a visceral reac- the lawyers. But the good lawyers do tion on the part of the decision- not bring personal animosity with maker either for or against the them into the courtroom. The effec- advocate and the cause. The follow- tive lawyers are able to sit there and ing are some thoughts on profes- take the scorn and abuse from the sionalism in the adversary system other lawyer without responding in from the perspective of the bench. kind. Of course, there is nothing The Lawyer’s worse to a lawyer’s case than to act scornfully toward the other lawyer. Relationship with This goes for civil litigators as well as the Client for defense counsel and prosecutors. One aspect of any proceeding The practice of law, especially that the decision-maker tends to criminal law, is all about relation- notice is how the lawyer relates to ships. Most lawyers know that they the client, or, in the case of a prose- must deal with each other another cutor, with the prosecuting wit- day. However, this is not always ness. Most good lawyers seem to be the case. Some lawyers might be able to develop reasonably good tempted to engage in abusive relationships with their clients, behavior if they believe they will although certainly this is not never see the adversary again. But always possible. Many clients end lawyers and people talk. Such up being a punishment to the behavior almost invariably catches lawyer based on some misdeed in up with the culprit sooner or later. one of the lawyer’s previous lives. A good relationship with the other But it always evokes a positive lawyer is indispensable to the abil- response to see the lawyer relating ity to obtain a good outcome. in a considerate, respectful manner Part of establishing a good rela- toward the client and doing small tionship is recognizing the adver- things like making sure the client is sary’s problems. For example, the comfortable. Of course, this can be prosecutor should understand that overdone as well. But judges and the defense lawyer is not the juries are usually taken aback accused and that the lawyer is ful- when they see a lawyer ignore the filling an essential constitutional client or treat the client rudely. It function. The prosecutor should does not happen often, but when it understand that the defense does, it is noticeable. lawyer’s primary source of infor-

October 2004 45 one judge. The defense lawyer has The Lawyer’s right around the corner. Also, you to placate them all. The defense Relationship with do not need to thank the judge for a lawyer must anticipate which ruling either way. Understand that judge will claim priority and must the Court the lawyers and the judge are all mollify clients and witnesses in I tried my first case almost 30 involved in a common enterprise to several venues all at the same time. years ago, and I still remember resolve the dispute fairly and consis- The defense lawyer must under- some of the adverse rulings I got. tently with the rules. stand that the prosecutor is usually Of course, those rulings were There is another phenomenon that working under a crushing caseload wrong. Or were they? Since I have I did not know existed until I got on and is accountable to numerous been on the bench, I have seen how the bench. It is called being rude to victims and public authorities. And the world turns from an entirely the staff. It does not happen often and not all prosecutors get the assis- new perspective—one I wish I had when it does happen, it is usually by tance that they need. been privy to way back then. pro se individuals. However, some The better relationships that the The trial lawyer needs to under- lawyers have called and spoken with lawyers can develop among them- stand a bit about the perspective staff in a way they would never, ever selves, the better they are able to from the bench. The judge simply speak with the judge. Guess what serve their clients and constituencies. does not know the case as well as the happens as soon as the conversation The Lawyer’s Conduct trial lawyer does. The lawyer has ends? When you speak with staff, do been living with it for months or so just as you would speak with the toward the Adverse years. The judge is probably being judge. Also, make sure that your staff Party or Witnesses exposed to the case for the first time. understands the importance of being courteous and civil with everyone, As indicated above, it is all Also, the judge has to use both sides including the other lawyer, the par- about passion and conflict. But of the brain during an evidentiary ties, the witnesses, the judge and the lawyers need to have it under con- hearing. One side of the brain listens judge’s staff. trol. Judges and juries do not like to the content and quality of the tes- The bottom line is courtesy, dig- to see lawyers bashing the day- timony insofar as it relates to the nity and respect to all participants lights out of each other, the par- merits. The other side of the brain is in the adversary process. Be proud ties or the witnesses. listening procedurally for possible of what you do. Be proud of your Subconsciously they hold it objections. And, unlike the advo- profession. against the basher. Remember cate, the judge is not necessarily pre- that it is, after all, a civilized pared to anticipate a particular Judge Toby Prodgers process. Your adversary gets to bomb blast or nuance in the evi- is a 1974 graduate of ask questions and you get to ask dence. So do not be surprised or the University of questions. Develop your cross- alarmed if the judge does not have the same appreciation or grasp of Georgia School of Law. examination techniques through He clerked for a year the evidence or its context as you do. training and practice. You are not with Justice Hiram Undercofler of When you get an adverse ruling, allowed to smite the hostile wit- the Supreme Court of Georgia. He do what you need to do to preserve ness. The most professional and then practiced law for 20 years possible error for appeal. But it is effective cross-examiners are peo- with the Marietta firm of Awtrey unprofessional and counterproduc- ple like Hylton Dupree and the & Parker doing primarily civil liti- late Bobby Cleveland who never tive to show your pique to the judge. gation and business law. He has once raised their voices, used sar- The judge knows in a close case that served on the Cobb State Court casm or showed their own person- he or she might be wrong. You do bench since 1995. not need to let the judge know by al angst over the perfidy of that Endnotes lie-bag on the other side. We have body language, eye rolls or other- all seen cases where lawyers have wise your personal feelings on the 1. Berry v. State, 10 Ga. 511, 522 matter. The lawyer does not need to (1851)(per Lumpkin, J.) lost simply because they were 2. The American Heritage College unable to control themselves emo- evoke adverse visceral feelings on Dictionary, p.1092 (3d ed. 1993). tionally in the face of a difficult the part of the judge. Besides, there 3. $25,000,000 per year for ten years to Alex “A-Rod” Rodriguez. cross-examination. might be another ruling coming

46 Georgia Bar Journal GBJ feature

Ode to The First Georgia Colonel* By Arthur A. Morrison Who was he, this man called “Colonel,” He fought a fierce fight for his clients With no uniform in sight? But salved raw wounds when through. Some wondered why this simple man Was ranked as one of might. His ethics were pure and simple— Learned at his mother’s knee. He never made a lot of money. They were the Ten Commandments— He never wore a robe. Plus another two or three. He never was a senator. He never shook the globe. His practice grew through “word of mouth.” He did not advertise. But who he was, this barrister, ‘Ads,’ they then deemed “barratry,” This worthy brother of mine, — He’d still find most unwise. Was a fair and honest advocate— With a superb legal mind. He took his duties seriously As an officer of the court. He gave his clients full measure fare Worked hard on matters pending— (Whether rich or poor or broke). Whether real estate or tort. He gave a truthful full accounting Of every dime he held for folk. He made a difference for good downtown, When his sage advice was sought. He bravely kept each confidence He gave it very freely But was loyal to the truth. With humor, wit, and thought. Gave wise and candid counseling. Knew all other would be uncouth. His life, summed up for all to see For all who really care, He treated all others fairly— Was plain but satisfying Brother at law or “Yank.” From a trade of stress and wear. His word was “bonded debt,” Which was honored at the bank. So, who was this man called “Colonel”— This beacon light of law? A cordial friend to lawyers all, — He was just a good Georgia lawyer A mentor to the new. Who earned our respect and awe.

hen I began the practice of law in l960, I was pleasantly surprised, when addressed by the judges and most court related persons (as well as by many elder citizens) as W “Colonel.” I even received a good bit of my mail from members of the older generation who prefixed my name with the title, “Colonel.” This respected “title” never became per- manently attached to me or to anyone whom I knew of my generation, as it had been to some of the older lawyers. Nevertheless, this unsolicited, sometimes-used name rang when heard, with a nice sound to even this loyal Navy man.

October 2004 47 When I inquired as to why this From reading history and letters name, well fitting the description form of address was often given to written in the South during the contained in my short poetic essay. lawyers, I was told that it probably post-Civil War era, we can glean And thirdly, under our fairly bal- became popular after the “War the fact that those were times when anced legal system, the closest thing Between the States,” when many manners and consideration for oth- to a warm and fuzzy feeling a militia units had been formed by ers were highly valued. And lawyer could ever have (at least for a local communities from untrained because the lawyers by then would nanosecond) is when the judge said, civilians. Because lawyers then, have been back in civilian clothes in a friendly voice in front of the generally, had a bit more leader- at court, often their ranks would be client, “Colonel, what is your posi- ship experience and problem-solv- unknown. Hence, “Colonel” was tion on this matter?” For the judge to ing training than most of their the highest rank probable (for the address a lawyer in this flattering enlisting companions, they were generals were mostly career mili- manner was not only a beneficial usually among those who were tary officers and relatively few in sanction for good, but it was always elected as officers of the new army; number, and their names and ranks sure to make the client feel that his and a large number of them were, for the most part, well own lawyer’s legal mind was returned home after the war as known). respected by the judge, if only for colonels. Hence, this honorary title If I ever hear a better explanation that one short moment before the began to be used liberally in for this former widespread use of client’s lawyer was ruled against! addressing any lawyer (and still the term “Colonel” in the post-war This pleasant sanction is now missed. I am convinced that the vast majority of our So, although the use of that illus- trious title, “Colonel,” which was present day younger siblings at the Bar still once so often used, may now henceforth be relegated to the his- appreciate, and would hope to emulate, the tory books, it does seem that the ideals of that “First Georgia Colonel.” time has finally arrived for all of us to remember, with fair reasoning, was often so used, in the early 60s South, I will willingly accept it. the customs which followed the in the “Old South” community of Until then, this logical answer will 1860s war. And yes, to discard for Jonesboro, where I was then first suit me just fine. all time those errant customs which admitted to the Bar). However, it appears that the use are now known as having been This historical view and rea- of this most honorable, honorary wrong, while retaining those which soning is strictly based on legend term, “Colonel,” has waned in we still perceive to have been good. and hearsay as far as I know, for recent years (seemingly being And it seems we have good rea- I have seen nothing before on this replaced by another honorable but son to believe that the lessons of point in writing. However, this more modern-sounding term, decency and civility which were explanation seems particularly “Counselor”). But regardless of the exhibited by that same respected plausible to me when I recall that, real reasons for how the use actually gentleman, who first shined a light during indoctrination taught in came about, I believe our culture for us down the emerging legal our military services, we were told suffers when we forget typical Old trails toward our own ‘Halls of that one should address an officer South manners, and I rather regret Justice,’ were very good, indeed. by the highest rank probable, the loss of use of this form of Furthermore, I am convinced whenever one is uncertain of the address, particularly in the case of that the vast majority of our pres- other’s actual rank, which often future lawyers; for the word ent day younger siblings at the Bar occurs when the parties are in “Colonel,” as so used, implied a cer- still appreciate, and would hope to civilian clothes. And if, by so tain level of personal achievement, emulate, the ideals of that “First doing, an error is made, the error which had been fairly earned. Georgia Colonel.” Indeed, most try would merely result in harmless Secondly, I have known many to do so, through his or her own flattery, rather than a more seri- learned brothers who gave the hon- unique gifts of manner. For the ous, personal slight. orary title “Colonel” a very good “First Colonel’s” values were also

48 Georgia Bar Journal the much admired standards of the *To paraphrase from several diction- -AA-AA ‘role models’ who brought us all to aries, the term “Colonel” has been var- R S the Bar. iously described as: 1. An army com- mander (principally of a regiment), 2. y p r l i Arthur A. Morrison is An honorary title used in the Southern t L m w a Navy veteran, and a states in connection with prominent o 1 c t graduate of the businesspersons or other leaders, and a A y r t g r University of Georgia 3. Earlier in the South, a title of respect and Emory Law u t given to certain noted elderly men; the School. A Savannah term originally probably meant a 7 -55 native, he practiced law in Clayton leader of a column of men. In my poem, -hh p County. He is a past president of 6 -44 the Clayton County Bar and the the “First Colonel” represented a com- Rotary Club. Now in retirement in posite personification of some virtuous South Fulton County, his hobbies qualities, which I often observed, early include playing trombone with on, in many former, older members of NEW HOME “The Southernaires” Big Band. the bar. CONSTRUCTION COMPLAINTS Residential Construction & Development Expert • Code & Inspection Compliance • Cost/Quality Analysis • Materials & Labor Evaluation 770-922-4411 www.danielturnerbuilders.com

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October 2004 49 GBJ feature

Notice of Expiring BOG Terms

isted below are the members of the State Bar of Georgia Board of Governors whose terms will expire in June L 2005. These incumbants and those interested in running for a specific post, should refer to the election schedule (posted below) for important dates. Alapaha Post 1 ...... Hon. Carson Dane Perkins, Nashville Dougherty Post 2 ...... Hon. Gordon R. Zeese, Albany Alcovy Post 1 ...... Steven A. Hathorn, Covington Dublin ...... Daniel M. King, Jr., Dublin Applalachian ...... Edwin Marger, Jasper Eastern Post 2 ...... William K. Broker, Savannah Atlanta Post 1 ...... Dow N. Kirkpatrick, II, Atlanta Eastern Post 4 ...... N. Harvey Weitz, Savannah Atlanta Post 3 ...... H. Fielder Martin, Atlanta Flint Post 1 ...... Gregory A. Futch, Stockbridge Atlanta Post 5 ...... Thomas G. Sampson, Atlanta Griffin Post 2...... Roy B. Huff, Peachtree City Atlanta Post 7 ...... Aasia Mustakeem, Atlanta Gwinnett Post 1 ...... David S. Lipscomb, Duluth Atlanta Post 9 ...... Charles Scott Greene, Atlanta Gwinnett Post 3 ...... Hon. Robert V. Rodatus, Lawrenceville Atlanta Post 11 ...... Roger Eugene Murray, Atlanta Lookout Mountain Post 2...... Christopher A. Townley, Rossville Atlanta Post 13 ...... Pat F. McMahon, Atlanta Macon Post 1 ...... Hon. Lamar W. Sizemore, Jr., Macon Atlanta Post 15...... Letitia A. McDonald, Atlanta Macon Post 3 ...... Robert R. Gunn, II, Macon Atlanta Post 17 ...... Kenneth L. Shigley., East Point Middle Post 2...... William Steven Askew, Swainsboro Atlanta Post 19 ...... Robert L. Shannon, Jr., Atlanta Mountain ...... James T. Irvin, Toccoa Atlanta Post 21...... Patricia Anne Gorham, Atlanta Northeastern Post 2 ...... Hon. Robert W. Chambers, III, Gainesville Atlanta Post 23...... Donna G. Barwick, Atlanta Northern Post 1...... C. Patrick Milford, Carnesville Atlanta Post 25 ...... Phyllis J. Holmen, Atlanta Ocmulgee Post 2 ...... Wilson B. Mitcham, Jr., Greensboro Atlanta Post 27 ...... Nancy J. Whaley, Atlanta Oconee Post 2 ...... John P. Harrington, Eastman Atlanta Post 29 ...... Tina Shadix Roddenberry, Atlanta Ogeechee Post 2 ...... Susan Warren Cox, Statesboro Atlanta Post 30 ...... Karlise Y. Grier, Atlanta Pataula...... C. Truitt Martin, Jr., Dawson Atlanta Post 32 ...... Seth David Kirschenbaum,Atlanta Piedmont ...... John E. Stell, Jr., Winder Atlanta Post 34 ...... Allegra J. Lawrence, Atlanta Rome Post 1 ...... Paul T. Carroll, III, Rome Atlanta Post 36 ...... Robin Frazer Clark, Atlanta South Georgia Post 2 ...... Gary O. Allen, Pelham Atlantic Post 2...... Joseph D. McGovern, Glennville Southern Post 2 ...... Robert Daniel Jewell, Moultrie Augusta Post 1 ...... J. Benjamin Kay, III, Augusta Southwestern ...... Hon. R. Rucker Smith, Americus Augusta Post 3 ...... Thomas R. Burnside, Jr., Augusta Stone Mountain Post 2 ...... Hon. Johnny W. Mason, Jr., Atlanta/Decatur Blue Ridge Post 2 ...... Gregory A. Hicks, Woodstock Stone Mountain Post 4 ...... M.T. Simmons, Jr., Decatur Brunswick Post 1 ...... J. Alvin Leaphart, Jesup Stone Mountain Post 6...... A. Thomas Stubbs, Decatur Chattahoochee Post 2 ...... William C. Rumer, Columbus Stone Mountain Post 8...... Hon. Robert P. Mallis, Decatur Chattahoochee Post 4...... Earle F. Lasseter, Columbus Tallapoosa Post 1...... Michael Douglas McRae, Cedartown Cherokee Post 2...... J. Lane Bearden, Calhoun Toombs ...... Dennis C. Sanders, Thomson Clayton Post 1...... H. Emily George, Forest Park Towaliga...... W. Ashley Hawkins, Forsyth Clayton Post 3 ...... Charles J. Driebe, Jonesboro Waycross Post 2 ...... Huey W. Spearman, Waycross Cobb Post 2 ...... Hon. Adele L. Grubbs, Marietta Western Post 1...... Hon. Lawton E. Stephens, Athens Cobb Post 4 ...... Patrick H. Head, Marietta Out-of-State...... Michael V. Elsberry, Orlando, Fla. Cobb Post 6 ...... John Kevin Moore, Marietta Member at Large Post 1* ...... Althea L. Buafo, Macon Conasauga Post 2 ...... Henry C. Tharpe, J., Dalton Member at Large Post 2* ...... Bettina Wing-Che Yip, Atlanta Cordele ...... John N. Davis, Vienna Coweta Post 2 ...... Delia T. Crouch, Newnan * Post to be appointed by president-elect.

State Bar of Georgia 2005 Proposed Election Schedule October Official election notice, October Georgia Bar Journal Feb. 25 Deadline for receipt of nominating petitions by new BOG Dec. 15 Mail Nominating Petition Package to BOG Incumbents and Candidates any other member requesting package March 7 Deadline for write-in candidates for officer to file a written 2005 statement (not less than 10 days prior to mailing of bal- Jan. 13-15 Nomination of officers, Midyear Board of Governors lots–Article VII, Section 1 (c)) Meeting, Omni Hotel, CNN Center, Atlanta March 16 Ballots mailed Jan. 25 Deadline for receipt of nominating petitions for incumbent April 16 12 p.m. deadline for ballots to be cast in order to be valid BOG Members (Article VII, Section 2) April 18 Election results available

50 Georgia Bar Journal “And Justice for All” 2004 State Bar Campaign for the Georgia Legal Services Program, Inc. (GLSP) DidYo u know that… …the Georgia Legal Services Program helps kids in crisis.

Your campaign gift helps low-income families and children find hope for a better life. GLSP provides critical legal assistance to low-income Georgians in 154 counties outside the metro Atlanta area. The State Bar of Georgia and GLSP are partners in this campaign to achieve “Justice for All.” Give because you care! Contribute on your State Bar Dues Notice, or use this coupon to mail your gift today!

YES, I would like to support the State Bar of Georgia Campaign for the Georgia Legal Services Program. I understand my tax–deductible gift will provide legal assistance to low-income Georgians. Please include me in the following giving circle: ■ Benefactor’s Circle $2,500 or more ■ Sustainer's Circle $ 250 - $ 499 ■ President’s Circle $1,500 - $2,499 ■ Donor’s Circle $ 150 - $ 249 ■ Executive’s Circle $ 750 - $1,499 ■ or, I’d like to be billed on (date): ■ Leadership Circle $ 500 - $ 749 for a pledge of $ Pledge payments are due by December 31. Pledges of $500 or more may be paid in installments with the final installment fulfilling the pledge to be paid by December 31. Gifts of $125 or more will be included in the Honor Role of Contributors in the Georgia Bar Journal. Donor Information: NAME: BUSINESS ADDRESS: Thank you for your CITY/STATE/ZIP: generosity! Please check one: ■ Personal Gift ■ Firm Gift GLSP is a non-profit law firm recognized as a 501(c) (3) by the IRS.

Please mail your check to: State Bar of Georgia Campaign for Georgia Legal Services • PO Box 999 • Atlanta, GA 30301 GBJ feature

The Thomas County Courthouse at Thomasville: The Grand Old Courthouses of Georgia By Wilber W. Caldwell

es of pine, rom its early beginnings Thomasville in 1825, Thomasville sought to develop its own quickly became the gate- brand of culture F and refinement way to western Florida and the in what still dominant trading center for the must have been a rather remote southernmost tip of the Cotton Belt outpost of the vanishing in Georgia. The county’s first court- American fron- house was built in 1827 of “split tier. In his Statistics of the pine logs covered with pine State of Georgia, boards.” In 1830, the entire county, George White reported which at that time included large Thomasville’s population at portions of present-day Brooks, around 500 in Colquitt and Grady counties, had 1849. By some

accounts, the Caldwell Photo by Wilber W. only about 3000 residents. town experi- Built in 1858. John Wind, architect. Remodeled in 1885. In 1846-47, a brick courthouse enced considerable growth in the with the seeds of sophistication replaced this first crude structure but 1850s, reaching 2500 residents by germinating in Thomas County’s was badly damaged by a storm in 1860 when the Atlantic and Gulf crude garden of pioneer pragma- 1853 and declared unsafe in 1855. By Railroad was completed to tism, symbolic architectural mes- the early 1850s, the county’s popula- Thomasville from Savannah. sages elevated this structure above tion had exceeded 10,000. As new This 1858 courthouse, designed mere practical considerations. To settlers, eager to exploit the com- by the transplanted Englishman discover this building’s soul, we pelling promise of cotton, began to John Wind, was an enormous today must mentally peel away an clear Thomas County’s great expans- building for its place and time, and extensive 1885 remodeling to find

52 Georgia Bar Journal the building’s original form a sim- theretofore had been a rather stark arched fenestration, the effect of ple example of the early American old red brick pile. After a few the 1885 remodeling created a brick vernacular style. This ele- years, it became natural for greater likeness to Asher mentary style, which often devel- Thomasvillians to simply assume Benjamin’s original 1827 oped along the edges of the that the building had always radi- “Elevation for a Courthouse.” American frontier, was usually ated this refined neoclassical aura. Perhaps this historical focus was inspired by details and elevations As in so many Southern towns, an more in tune with the mood in presented in various practical almost unavoidable inference Thomasville in 1885 than any mod- builders’ guides, like the ones pub- occurred. Late 19th century archi- ern messages. lished in the early 19th century by tectural sophistication came to doc- .Just as Thomasville’s 1885 Asher Benjamin. Benjamin’s simple ument a rose-colored vision of soci- courthouse remodeling was com- classical forms were used through- ety in the earlier period, implying pleted, two magnificent resort out America to convey lofty images an antebellum cultural enlighten- hotels were erected, marking the of purity, justice, democracy, rea- ment similar to the one detailed in period of the town’s fullest flower. son and so on. the then emerging myths of the Old Mild winters and soft Southern airs Despite such imagery, the result South. had made Thomasville a popular of Wind’s manipulations of Asher The 1885 remodeling of the old winter resort with wealthy Benjamin’s much copied form was vernacular building lifted the Northern vacationers, and these probably more reflective of structure out of the frontier and enormous facilities, the Mithchell Thomasville’s economic success into a more sophisticated, if not up- House and the Piney Woods, and commercial growth than any- to-date, American architectural era. added substantial elegance to the thing else. This building distin- Here we find Renaissance themes, attractive natural scene. Both were guished Thomasville more by its but details generally recall the designed by New York architect J. size and quality of construction older Italianate style popular in the A. Wood, who would later go on to than by its artistic qualities of pre-war period rather than the design the Oglethorpe Hotel in design. This distinction is made modern clothing of the blossoming Brunswick and Henry B. Plant’s even more radiant when the build- American Renaissance Revival, fabulous 511-room Tampa Bay ing is compared to many of its which, in the 1880s, was just begin- Hotel completed in 1891. neighbors. Thomasville had ning to gain momentum in the Through it all, Thomasville’s undoubtedly managed some North. Distinctly Italianate is the population remained rather static degree of cultural refinement by fenestration, featuring both round- reporting about 5500 residents in 1860, as wealthy planters achieved ed and segmental arches with bold 1890 and just above 6500 20 years enough success in the fields to hoodmolds supported by orna- later. move their residences to town. mental braces. The enclosure of the Nonetheless, Thomas County sure- portico and the addition of the ped- Excerpted by Wilber W. Caldwell, ly had its rough edges on the eve of iment and its three massive sup- author of The Courthouse and the the Civil War, and this building, in porting arches create an entrance Depot, The Architecture of Hope its original form, perhaps spoke true to the vision of the original in an Age of Despair, A Narrative Guide to Railroad Expansion and better for that practical frontier cul- Asher Benjamin design. Likewise, its Impact on Public Architecture ture than it did for a fabled the remodeled octagonal tower is in Georgia, 1833-1910, (Macon: “planter aristocracy.” similar in effect, although more Mercer University Press, 2001). The 1885 remodeling of the grand than Benjamin’s plan. Hardback, 624 pages, 300 photos, Thomas County Courthouse Unlike Bruce and Morgan’s 1892 33 maps, 3 appendices, complete undoubtedly did much to affirm Brooks County remodeling of John index. This book is available for Thomasville’s belief in such aristo- Wind’s almost identical 1860 court- $50 from book sellers or for $40 cratic Old South mythology. The house at nearby Quitman, this is from the Mercer University Press Italian Renaissance details, pre- not a step forward into the archi- at www.mupress.org or call the sumably the design of local con- tectural future, but rather a decid- Mercer Press at (800) 342-0841 tractors Eaves and Chase, added ed step backward into the past. In inside Georgia or (800) 637-2378. considerable charm to what fact, if we disregard the delicate

October 2004 53 GBJ feature

Project “Legal Lives” 2004 Fulton DA Schools Elementary Students on Law and Order By Lyn Vaughn Vann

rom reality TV police

and court dramas to Flearning about the real thing—this is the journey Atlanta

elementary school students who

participate in “Project Legal Lives”

take, courtesy of Fulton County

District Attorney Paul Howard. Fulton County District Attorney Paul Howard sends Legal Lives students off to Washington, D.C. Each year since 1993, when law by assistant district attorneys downtown Atlanta. Members of Howard initiated the program in as part of their social studies class- the Fulton County District es. They are taught the principles Attorney’s staff judged the compe- Georgia, fifth graders from and values that underlie our crim- tition, as in years past. For Dean Arkwright, Dean Rusk, Mary inal justice system—a basic Rusk Elementary School student respect for individual rights and Malik Caldwell, who won a trophy McLeod Bethune, Peyton Forest, respect for the common good. for his mock trial work, that part of They also learn, as any good the program was “totally awe- Venetian Hills and, this year, lawyer must, how to think critical- some.” Benteen Elementary Schools are ly, analyze facts and speak before The reward for the students’ an audience. Then, they’re ready enthusiasm, hard work and perse- introduced to the workings of the for the mock trial. The District verance is an all expense paid trip Attorney’s Community Affairs to the nation’s capital. Judging by criminal justice system. They Director Jada Dawkins says, as the the comments of those who trav- become the actors in a mock trial weeks pass, you can see the eled to Washington this year, that remarkable growth in the stu- alone is incentive to do well. “The competition, and the youngsters dents. “It is as rewarding for us,” trip to Washington was fun,” says Dawkins says, “as it is for them.” Ngoc Vu of Dean Rusk Elem- who give their all to the project are On trial day, the students serve entary. “I learned about Frederick taken on a whirlwind trip to as prosecutors, defense attorneys, Douglass and how he learned to defendants, witnesses, victims, read all by himself and how he Washington, D.C. jurors and the judge. This year’s fought for what he believed in.” Once a week for 10 weeks, the competition took place in May at Peyton Forest student Katari youngsters are immersed in the the Fulton County Courthouse in Fannin says, “It was fun visiting

54 Georgia Bar Journal Once a week for 10 weeks, the youngsters are immersed in the law by assistant district attorneys as part of their social studies classes. They are taught the principles and values that underlie our criminal justice system - a basic respect for individual rights and respect for the common good. They also learn, as any good lawyer must, how to think critically, analyze facts and speak before an audience. the National Zoo and seeing all the different animals.” The competition is tough. The students who are selected to make the trip aren’t judged solely on their mock trial performance. They must demonstrate commitment to Project Legal Lives by consistent participation in the classes, completing homework assignments and exhibiting exemplary behavior in and out of class. Five students from each school are chosen to make the trip. Some of the fifth- grade teachers accompany the students to Washington as chaper- ones. Most of the money for the Legal Lives Students sit on the steps of the U.S. Capitol with Congressman program comes from a Local Law John Lewis. Enforcement Block Grant through young people with the law and how for me. I really appreciate the hos- the U. S. Justice Department. The the legal system works in order to pitality. I have really had a good Fulton County District Attorney’s keep them from winding up on the time. You have set a new goal for office provides the balance. wrong side of the system. As me to reach.” And who wouldn’t be excited Howard puts it, “I truly believe that And that, says Howard, is what about a four-day excursion to the one of the Legal Lives students will it’s all about. nation’s capital? someday sit on our nation’s Supreme The young people will tell you it Court. I believe they will all become Lyn Vaughn is acting was exhausting, yet exhilarating better citizens. It is important for my director of public rela- and exciting. This year from June 3- office to continue to play an impor- tions in the office of 6, they toured the renowned tant role in this process.” Fulton County District Attorney Paul Howard. Smithsonian Museum and the Air The students may be too young She hosts the news and Space Museum and visited the to realize the full importance of magazine show Inside Dekalb on home of writer and orator Frederick their participation in such a pro- Dekalb County TV channel 23 and Douglass on the African-American gram, but they do know the experi- writes feature articles for the new Heritage tour. On Capitol Hill, they ence is meaningful and fun. For home décor magazine, Living were greeted by Georgia Congress Takeria Michelle Nash of Space. Lyn has worked as a members John Lewis, a civil rights Arkwright Elementary, Project broadcast journalist in the Atlanta hero, and David Scott. Legal Lives was life changing. In a market since 1983, most notably The goal of Project Legal Lives is letter of gratitude, she wrote, at CNN Headline News from 1984 simple. It is to familiarize these “Thank you for all you have done to 1998.

October 2004 55 Kilpatrick Stockton LLP announced that Shyam KUDOS Reddy, an attorney in the firm’s corporate practice K. Martin Worthy, a retired partner of Foley & group, was selected for the prestigious L.E.A.D. Lardner in Washington, D.C., received the 2004 Atlanta Class of 2005. L.E.A.D Atlanta is a leader-

Bar Distinguished Service Award from the American ship initiative for young professionals. Only 36 indi- Bar Association’s taxation section. Worthy has held viduals were chosen out of nearly 100 applicants. a number of leadership roles in the ABA’s tax sec-

& tion and in the American College of Tax Counsel. Tyrone C. Means, of Thomas, The award is the highest given by the section. Means, Gillis & Seay, P.C., was named a member of the Fellows The American Health Lawyers Association, the Program of the Alabama Law nation’s largest educational organization devoted Foundation. The program honors to legal issues in the health care field, listed lawyers who have been members of McGuireWoods LLP as seventh in the number of the Alabama State Bar Association for more than lawyers in the firm (36) who belong to the AHLA. 10 years and who have demonstrated outstanding McGuireWoods’ health care department repre-

Bench dedication to their profession and their communi- sents three of the largest health care systems in the United States, two of the 10 largest surgery center ty. Fellows must be nominated by a colleague, and companies in the country, and two of the six they are limited to one percent of the total bar largest dialysis facility companies in the nation. membership.

Earnhart A. Spencer Jr. of Powell, Goldstein, Janet E. Hill, of Hill & Beasley, LLP, became pres- Frazer & Murphy LLP led a group of nine ident of the National Employment Lawyers Roanoke College students on a three-week educa- Association at its annual convention. NELA is tional trip to Ghana. In addition to attending lec- exclusively comprised of lawyers who represent tures at the University of Ghana at Legon, the stu- individual employees in employment-related mat- dents learned Ghanaian history and government ters. It has more than 3,000 members, including firsthand by visiting various historical, cultural state and local affiliates. and political sites. The group also had the opportunity to participate in an International Habitat for Brent Wilson, a partner with Elarbee, Thompson, Humanity project in the township of Assin Fossu. Sapp & Wilson, was inducted into the College of Spencer served as the instructor for a course on Labor & Employment Lawyers during the ABA Ghanaian political history and comparative con- Annual Meeting in Atlanta. The college consists of stitutional law, a mentor for the students and a nearly 600 of the top labor and employment chaperone on various educational excursions. lawyers from across the country with at least 20 years of distinguished experience in the labor and Lenny Panzitta of Hunter Maclean and his wife, employment field. There are 14 current members Karen, a physician with Radiology Associates of from Georgia. Savannah, recently won the $5 million Lotto South jackpot. The Panzittas are strong supporters of the Ogletree, Deakins, Nash, Smoak & Stewart, P.C., HOPE Scholarship program; they purchase a $50 announced that Margaret H. Campbell was Lotto South ticket every five weeks. They rarely selected as a fellow of the College of Labor and broke even until this win, which netted them $1.7 Employment Lawyers. Election as a fellow is the million after taxes. They intend to put most of the highest recognition of sustained outstanding per- money into the bank and use the rest to fund busi- formance in the profession. Ogletree Deakins now ness ventures. has 18 fellows in the college—the most of any labor and employment law firm. The Executive Awards Committee of the National Republican Congress- Jim Messer, a partner with Fonvielle ional Committee designated Richard Lewis Foote & Messer in W. Wolfe as the 2003 Georgia Tallahassee, Fla., was elected to the Businessman of the Year. Wolfe was Board of Directors of the Academy presented with the award at a ceremo- of Florida Trial Lawyers and ny in Washington, D.C. in April. Wolfe is a member received the Silver Eagle Award for of the NRCC Business Advisory Council and was his service to the academy. nominated to serve as one of Georgia’s voting dele- gates at the 2004 NRCC Tax Summit.

56 Georgia Bar Journal Arnall Golden Gregory LLP attorney Bryan The Newman Law Firm announced that David W. Bench Bockhop was named vice chair of the American Adams joined the firm. He will continue to prac- Intellectual Property Law Association’s tice in the area of catastrophic injury and wrongful Emerging Technologies Committee. He will death. The office is located in the Park Plaza build- assume this role during the annual AIPLA meeting, Suite 150, 178 South Main St., Alpharetta, GA ing in October. The committee is charged with 30004; (678) 205-8000; Fax (678) 205-8002. investigating new technologies and providing the AIPLA with input and educational programs Ford & Harrison announced that Christopher relating to new legal issues arising from emerg- Butler, Jeffrey Hackney and Jermaine Walker & ing technologies. In addition, Marva Jones joined the firm as associates in the Atlanta office, Brooks was selected as chair-elect of the located at 1275 Peachtree St. NE, Suite 600, Atlanta, National Conference of Bar Examiners board. GA 30309; (404) 888-3800; Fax (404) 888-3863. Bar She will become chair in August of 2005. The NCBE works with various state supreme courts, Powell, Goldstein, Frazer & Murphy LLP state bar examiners organizations and American announced that Charles L. Warner joined the Bar Association committees to develop, maintain firm’s Atlanta office as of counsel in its intellectual and apply reasonable and uniform standards of property development and protection practice. education and character for eligibility for admis- Warner is an electrical engineer and has served in sion to the practice of law. positions at Texas Instruments and with the U.S. Air Force Civil Service. The firm is located at 191 Jessica J. Harper, a shareholder with Bodker, Peachtree St. NE, 16th Floor, Atlanta, GA 30303; Ramsey, Andrews, Winograd & Wildstein, P.C., (404) 572-6600; Fax (404) 572-6999. was named “Volunteer of the Year” by the Georgia Association for Women Lawyers. This is Nations, Toman & Nutter LLP the first time GAWL has recognized one of its own announced that Charles K. McKnight members for the award. Harper was selected from Jr. joined the firm as a partner, and the more than 7,000 members for the honor. She firm will now be known as Nations, serves on the organization’s board as vice presi- Toman, Nutter & McKnight LLP. dent of special events. McKnight was a partner at King & Spalding. He will continue to represent plaintiffs The State Bar of Georgia’s Young Lawyers Division received special recognition during and defendants in contract, fraud, business tort and the ABA’s annual meeting earlier this year in real estate disputes. The firm is located at Suite 1550, Atlanta. The YLD received first place in the Tower Place, 3340 Peachtree Road NE, Atlanta, GA newsletter category and second place in the 30326; (404) 266-2366; Fax (404) 266-2323. comprehensive category. Additionally, the YLD received special recognition for its Women in Troutman Sanders LLP announced that Lara B. the Profession Pro Bono Fair and for its Women Robinson joined the firm’s compensation and in the Profession Lunch & Learn Programs. The employee benefits group as a partner and practice YLD also received a certificate of performance group leader. The group handles all aspects of com- for the Minorities in the Profession Summer pensation and benefits law, design, consulting and Picnic. application. Troutman Sanders’ Atlanta office is located at 600 Peachtree St. NE, Suite 5200, Atlanta, GA 30308-2216; (404) 885-3000; Fax (404) 885-3900. ON THE MOVE George W. Jordan III joined Merchant & Gould as an associate in its Atlanta office. He practices intel- In Alpharetta lectual property litigation with a focus on patent Randolph H. Houchins was recently named vice and computer/electronics disputes. The firm is president and general counsel of Cellnet located at 133 Peachtree St. NE, Suite 4900, Atlanta, Technology, Inc., and its affiliated companies. GA 30303; (404) 954-5100; Fax (404) 954-5099. Cellnet is a provider of wireless automated meter reading and distribution automation products Jamilia N. Smith joined Banta Immigration Law and services for the utility industry. Their head- Ltd. as an associate specializing in business immi- quarters are located at 30000 Mill Creek Ave., gration law. The firm is located at 1175 Peachtree Suite 100, Alpharetta, GA 30022; (678) 258 1500; St. NE, 100 Colony Square, Suite 700, Atlanta, GA Fax (678) 258 1686; www.cellnet.com. 30361; (404) 249-9300; Fax (404) 249-9291.

October 2004 57 Carlton Fields, PA, opened a new office in Harrison, LLP. Chamberlain Hrdlicka’s Atlanta office Atlanta, their seventh nationwide. Wayne is located at 191 Peachtree St. NE, 9th Floor, Atlanta, Shortridge joined the firm and will serve as the GA 30303-1747; (404) 659-1410; Fax (404) 659-1852. Atlanta office’s managing shareholder; he was a

Bar managing partner at Powell Goldstein. The new Ronald T. Coleman Jr. joined the office is located at One Atlantic Center, 1201 West firm of Parker Hudson Rainer & Peachtree St., Suite 2500, Atlanta, GA 30309; (404) Dobbs LLP as a partner in its litiga- & 815-3400; Fax (404) 815-3415. tion group. His practice will continue to focus on complex business litiga- The Atlanta office of tion, particularly in the areas of intel- McGuireWoods LLP lectual property, franchise and trade regulation lit- announced two addi- igation. The office is located at 1500 Marquis Two tions to the firm’s labor Tower, 285 Peachtree Center Ave. NE, Atlanta, GA and employment depart- 30303; (404) 523-5300; Fax (404) 522-8409. Barnum Horton ment: Eric L. Barnum as

Bench a partner and Halima Horton as an associate. The Chitwood & Harley LLP announced that David firm is located at The Proscenium, 1170 Peachtree St. Worley joined the firm as a partner; David Bain NE, Suite 2100, Atlanta, GA 30309-7649; (404) 443- and Nikole Davenport became partners; Robert 5500; Fax (404) 443-5599. Kahn joined the firm as of counsel; James Evangelista joined the firm as counsel; and James Schiff Hardin LLP added Michael Wolensky and Wilson, Joseph Helm and Leslie Toran joined the Ethan H. Cohen as partners in their Atlanta office. firm as associates. The firm is located at 2300 Both will be members of the firm’s market regula- Promenade II, 1230 Peachtree St. NE, Atlanta, GA tion and general litigation groups. Schiff Hardin’s 30309; (404) 873-3900; Fax (404) 876-4476. Atlanta office is located at 1230 Peachtree St., 18th Floor, Atlanta, GA 30309-3574; (404) 806-3800; Fax Corliss Scroggins Lawson, a partner (404) 806-3801. with Lord, Bissell & Brook LLP, was named partner-in-charge of the firm’s Needle & Rosenberg Atlanta office. Lawson’s practice announced that Anthony focuses on insurance coverage litiga- J. DoVale Jr. and Brian tion, environmental liability, premis- Giles joined the firm, es liability, products liability, construction/design DoVale as an associate in defects, credit fraud, employment and general con- DoVale Giles the mechanical patent tracts. The office is located at 1900 The Proscenium, practice group and Giles as a science advisor in the 1170 Peachtree St. NE, Atlanta, GA 30309; (404) biotechnology practice group. The firm is located at 870-4600; Fax (404) 872-5547. Suite 1000, 999 Peachtree St., Atlanta, GA 30309-3915; (678) 420-9300; Fax (678) 420-9301. In Decatur John E. Connerat and Tim L. Fallaw recently Fredric Chaiken and Stephen R. Klorfein opened the law firm of Connerat & Fallaw LLP in announced the opening of their new firm, Chaiken Decatur. The firm focuses on real estate law with a Klorfein, LLC. Their practice areas include business particular emphasis on residential real estate trans- litigation, corporate governance, non-compete and actions and closings. The firm is located in the confidentiality agreements, trademark and patent Commerce Plaza building, 755 Commerce Drive, infringement, estate litigation, domestic relations, Suite 802; Decatur, GA 30030; (404) 638-5240; Fax personal injury, tax planning, estate planning, merg- (404) 638-5241; www.lawcf.com. ers and acquisitions, probate, and general business representation. The firm is located at 7000 Peachtree In Duluth Dunwoody Road, Building 9, Suite 300, Atlanta, Mandy L. Miller has become an associate with Georgia 30328; (770) 668-5454; Fax (770) 668-1677. Prebula & Associates LLC, a law firm in Duluth that focuses primarily on civil litigation. Her services Jefferson D. Blandford joined Chamberlain include assisting clients in the areas of family law, Hrdlicka as a shareholder in the firm’s litigation prac- employment law, personal injury, business law and tice. He focuses on labor and employment law, commercial litigation. The firm is located at 3483 including ERISA, and commercial litigation. Satellite Blvd., The Crescent Building, Suite 200, Blandford was formerly a partner with Ford & Duluth, GA 30096; (770) 495-9090; Fax (770) 497-2363.

58 Georgia Bar Journal Thompson & Slagle, P.C., announced that Bench Michael J. Hannan III has joined the firm as of The new chair of the Formal Advisory counsel, where he will continue his trial and Opinion Board is James W. Friedewald of appellate practice in the areas of catastrophic torts Edwards, Friedewald & Grayson in Marietta. and personal injury, first party insurance, ERISA, He has been a member of the board since 2000. professional liability, commercial, class action and Professor Jack L. Sammons Jr. of Mercer employment litigation. The firm is located at University’s Walter F. George School of Law 12000 Findley Road, Suite 250, Duluth, GA 30097- was re-elected as vice chair. He has served in 1483; (770) 662-5999; Fax (770) 447-6063. that capacity for the past 3 years. Sammons has been a member of the board since 1996. & In Jacksonville, Fla. Michael Bagley, of Drew, Eckl & Farnham in Atlanta, served as chair for the last three years.

Christopher L. Casey, formerly of J. Hue Henry, Bar He will continue to serve on the board. The P.C., in Athens, Ga., joined the Jacksonville office of State Bar of Georgia would like to thank all the Hinshaw & Culbertson, LLP. Casey remains an members of the Formal Advisory Opinion active member of the State Bar of Georgia. The firm Board for their service and dedication. is located at 50 N. Laura St., Suite 1800, Jacksonville, FL 32202; (904) 359-9620; Fax (904) 359-9640. From the South Georgia Office Working for you

South Georgia representatives of the Membership Services Committee met in the Tifton office to join other committee members around the state by conference call. The purpose of the meeting was to identify strategies that encourage members to (Left to right) Michael Turner, Tifton; Gary Allen, Pelham; Greg take advantage of Sowell, Tifton; Norman Crow, Sylvester; Lester Castleberry, various State Bar Moultrie; Judge Gordon Zeese, Albany; and Walter Elliott, Valdosta. member resources. To help generate ideas, the committee is seeking feedback from all members. Please visit www.gabar.org/Survey_member_benefits.asp to take the member benefits survey. In Other News Dougherty County District Attorney Ken Hodges and his chief assistant Greg Edwards were both seriously injured when their SUV hydroplaned on Interstate 75 in August. With time, both are expected to make a full recovery. To help speed up the healing, you may send a card to: P.O. Box 1827, Albany, GA 31702.

October 2004 59 Know the Rules About Providing Additional Law- Related Services to Clients By Paula Frederick

“ One of your law partners raises concern e’ve had a bit of luck,” about this encounter when you describe it to your clients Jan and Joey him later. “Are you sure you haven’t created a conflict of interest with the Kravitzes?” he Kravitz announce as they asks. “I sure would hate to lose their legal W business because you were trying to steer enter your office. “A relative who Jan never them to your financial planning company.” even met left her a bundle. As soon as his “It’s all aboveboard and perfectly ethical,” you assure your partner. “There’s estate settled and the money came through, even a Bar rule that deals with it. Rule General Counsel we figured we’d better have you revise those 5.7—Responsibilities Regarding Law- Related Services.” wills you did for us a few years ago.” You are right! Rule 5.7 allows a lawyer to A quick update on the Kravitzes’ situation provide law-related services to a client. The leaves you shaking your head. “Jan and Joey, lawyer is subject to the Georgia Rules of I’m surprised that you haven’t hired a pro- Professional Conduct with respect to the fessional to advise you how best to invest additional services unless they are offered your inheritance,” you say. “I’ve only in a way that is clearly separate from the glanced at the information you brought me, legal services. and already I can tell that you’re not taking As with many other ethics rules, Rule 5.7 full advantage of a number of tax credits and its comments demonstrate a preference available to you.” for disclosing information and allowing the

Office of the “We’re wary of trusting anyone with our nest client to make an informed decision. The con- egg,” Jan explains. “Remember that unfortunate cern with this particular rule is that, unless experience we had with the phony ‘investment informed otherwise, clients may assume adviser’ who turned out to be wanted in five ancillary services carry all of the usual pro- states? Joey lost half his retirement savings tections of the client/lawyer relationship. through that fraudster’s shenanigans.” Providing law-related services can benefit “Since then we’ve been managing our own your clients by providing them with con- financial affairs,” Joey adds. “I never thought I venient, reliable help in a variety of areas. would turn over control of my finances to any- Before you develop a plan to offer law-relat- one again, but I’ll admit I’m in over my head ed services, remember to contact the Ethics with this inheritance. Maybe you could help Helpline at (404) 527-8720 to discuss your us! Is there anyone you could recommend?” situation with a lawyer in the Office of the “As a matter of fact there is,” you announce. General Counsel. “I’m now a Certified Financial Planner—I’ve been working on getting certified for ages, and Paula Frederick is the deputy finally completed all the requirements. I’m general counsel of the State Bar of Georgia. part owner of a company that would be delighted to provide you with professional, ethical advice on managing your assets.”

60 Georgia Bar Journal Discipline Notices (June 15, 2004 through Aug. 10, 2004) By Connie P. Henry

DISBARMENTS/VOLUNTARY consent. He deposited the funds into his bank SURRENDER account and told the client the case had been Discipline settled for $18,000. Ross has not accounted for Richard Kenneth Capps the funds nor delivered them to his client. Douglasville, Ga. On June 28, 2004, the Supreme Court of Joseph Mitchell Williams Georgia accepted the Petition for Voluntary Macon, Ga. Surrender of License of Richard Kenneth Joseph Mitchell Williams (State Bar No. Capps (State Bar No. 108858). Capps con- 762969) has been disbarred from the practice ducted two real estate closings in October of law in Georgia by Supreme Court order Lawyer 2003 but failed to pay taxes or insurance, dated July 12, 2004. In June 2002 a client paid causing the properties to be subject to fore- Williams $350 to file a petition for a name closure. The client had to pay additional fees change. Although Williams reassured the to bring his taxes and insurance up to date. client that he was handling the matter, he did In another matter Capps represented a not do any work on the client’s behalf. In client in the purchase of a home. The client September 2002 the client demanded her was due a refund. Capps wrote a check from money back, but Williams failed to return the his operating account, which was returned money or paperwork. for insufficient funds, and then wrote a check In October 2000 Williams was paid $1,000 from his trust account, which was not hon- to handle a civil matter. In February 2001 ored. Capps never refunded the money. He Williams filed a statement of claim in magis- claimed he paid the title insurance, but trate court but failed to serve the defendant Capps’ agency had been suspended, thus, or perform any additional work. Williams the title company had no obligation for the failed to return the fees or file. insurance. Capps subsequently reimbursed In a third matter Williams was paid $4,000 the client for the amount on the settlement to represent a client in a criminal matter. statement. Additionally, four more checks Williams negotiated a guilty plea without the issued in March 2003 were trust account client’s permission. Williams failed to appear overdrafts. in court on the client’s behalf on three sepa- Finally, Capps closed the sale of a third rate occasions. client’s house but failed to send the payoff funds of over $93,000 to the bank. SUSPENSIONS John H. Armwood Eric Vann Ross Marietta, Ga. Atlanta, Ga. John H. Armwood (State Bar No. 022545) Eric Vann Ross (State Bar No. 615128) has has been suspended from practicing law in been disbarred from the practice of law in Georgia by Supreme Court order dated July Georgia by Supreme Court order dated July 12, 2004, for a period of two years with con- 12, 2004. Ross settled a case for $20,000 and dis- ditions for reinstatement. Armwood was missed it with prejudice without his client’s paid $1,500 in September 2002 to represent a

October 2004 61 client against misdemeanor charges. Armwood did not file an Consumer entry of appearance, did not request a preliminary hearing, and did not respond to repeated Pamphlet requests for information about the case. In December 2002, at the request of the incarcerated client, the county public defender filed an Series entry of appearance on his behalf. As a prerequisite to reinstatement, Armwood is required to reimburse any unrefunded portion How to be a Legal Lawyers and Juror’s of the $1,500 and to complete 12 Good Witness Careers Legal Fees Manual hours of Law Office Management in an ICLE-approved program. Patents, Selecting a Auto Buying Trademarks & Nursing Home Accidents a Home Copyrights Jeffrey N. Schwartz Marietta, Ga. BankruptcyState Bar How to Choose Jeffrey N. Schwartz (State Bar of Georgia A Lawyer No. 631020) has been suspended Consumer from practicing law in Georgia by

State Bar State Bar Supreme Court order dated July 12, Legal Rights of Selecting a Nursing Home ofDivorce Georgia Personal Willsof Georgia 2004, for a period of 18 months Residents Care Home Consumer 62 nunc pro tunc May 9, 2003. Between the fall of 2001 and March 2003 Schwartz accessed and deleted voice mail messages left on the voice mail of his former employer,

State Bar State Bar State Bar State Bar an Atlanta law firm that discharged of Georgia of Georgia of Georgia of Georgia Consumer Consumer Consumer Consumer him in August 2001. Schwartz Pamphlet Pamphlet Pamphlet Pamphlet Series Series Series 62 Series 62 resigned his position at his current law firm and voluntarily ceased practicing law on May 9, 2003. The State Bar of Georgia’s Consumer Pamphlet Series is INTERIM SUSPENSIONS available at cost to Bar members, non-Bar members and organizations. Pamphlets are individually priced at 25 and 75 Under State Bar Disciplinary cents each plus shipping. Questions? Call (404) 527-8761. Rule 4-204.3(d), a lawyer who receives a Notice of Investigation The following pamphlets are available: and fails to file an adequate Auto Accidents  Bankruptcy  Buying a Home  Divorce  response with the Investigative How to Be a Good Witness  How to Choose a Lawyer  Juror's Panel may be suspended from the Manual  Lawyers and Legal Fees  Legal Careers  Legal Rights practice of law until an adequate of Nursing Home Residents  Patents, Trademarks and response is filed. Since June 15, Copyrights  Selecting a Nursing Home  Selecting a Personal 2004, four lawyers have been sus- Care Home  Wills pended for violating this Rule.

Connie P. Henry is the clerk of the Visit www.gabar.org/cps.htm for an order form State Disciplinary Board. and more information or e-mmail [email protected].

62 Georgia Bar Journal The Small Firm Paperless Office By David L. Masters

computer in much the same way that you he paperless office exists today, work with pieces of paper. Management not as an abstract goal but as a real The physical transition to a paperless office requires hardware and software, some possibility for virtually all small of which you may already have and some T you may need to purchase. The amount of firm attorneys. Your office can be paperless, money you will have to spend to move to a or nearly so. You won’t need a degree in paperless office depends in part on what you already have and how elaborate you want computer science. If you can’t afford a con- your paperless office to be. sultant or live in an area without consultants, A Shift In Thinking don’t worry. The ideas here come from a Lawyers and law firms process information, little more and little else. We receive rural small firm practice and can be imple- information from clients and other sources, mented by anyone (they may or may not be we add information gained from research Law Practice and experience, and we deliver information. extrapolated to larger firms). The information that lawyers deliver takes So what’s the catch? Making the transition many forms; it may be a pleading, an oral to a paperless office requires a shift in think- presentation to a court, an opinion letter, or a ing about how you, the lawyer, handle infor- contract, but in the end lawyers receive, mation. This is not a project to pass off to process and deliver information. your staff; you, the lawyer, will be working Most of the information that comes into with paperless documents. There will still be the law office arrives in the form of paper plenty of paper passing through your office; documents. For that matter, most of the until your clients and the lawyers outside information output from law offices, your your firm go paperless, they will continue to work product, goes out as some form of doc- deliver information to you on sheets of paper ument. Taking a very simple and abstract (lots of paper). But, once you go paperless view of the typical law office, there are three and need to see a document that’s more than primary systems involved in processing doc- a few days old, it will exist in your office dig- uments: itally to be viewed on your computer. That’s n A document generation system; the catch and the shift in thinking. You need n A document copying or replication sys- to become comfortable with working with tem; and information on your computer rather than on n A document retention or filing system. pieces of paper. That’s where Adobe Figures 1 and 2 on page 64 illustrate, with AcrobatTM comes in. Acrobat makes it possi- rough diagrams, how these systems work in ble for you to work with information on your the typical law office. Notice that all docu-

October 2004 63 ments (whether incom- electronic format, ing or outgoing) pass readily available if through the copying or Incoming Document needed, and then clos- replication system. In ing files by dragging the typical office, a pho- them from an active tocopier acts as the work directory to an copying or replication archive directory. This system. In the paperless Photo Copier is the reality of the office, a scanner re- paperless law office. places the photocopier. The Physical Incoming documents pass through the scan- Transition Copy to Client Copy to File ner, rather than a pho- Once you’ve decided tocopier, producing to think paperless, the digital copies that are physical half of the stored electronically. Figure 1 paperless office be- Outgoing documents, comes manageable. The rather than being physical half consists of scanned or photo- the hardware and soft- Outgoing Document copied, are retained in ware needed to convert their original digital paper documents to dig- format and printed ital documents and (converted) to Portable store, retrieve, work Document Format Photo Copier with, and back up those (PDF) just like the digital documents. scanned documents. The first item on the Any paperless office list will be the scanner. will depend on some There are many scan- type of electronic filing Copy to Client Copy to File ners on the market, but systems and a commit- not all are suitable for ment to capture digital the paperless law office. images of all incoming Inexpensive flat bed paper. The file room in scanners generally lack the paperless law office Original to Recipient an automatic document consists of electronic fil- feeder (ADF). As a ing cabinets filled with result this type of scan- folders that contain Figure 2 ner cannot process everything found in paper quickly enough to traditional paper files. Think of a it will be like to have all documents be useful. Desktop, egg-carton style, shared hard disk drive as the file at your desk without rummaging sheet fed scanners likewise are too room: the cabinets within the room through file cabinets or boxes. slow to provide much benefit. These are large divisions on the disk, and Think of all the paper you put in devices are convenient for individual within those cabinet-sized divisions files, because someday you may users to occasionally acquire images are folders for each client matter. need it, only to never see it again. of documents without a trip to the Most client matter folders are fur- Consider the unpleasant process of main scanner. High speed sheet fed ther divided into subfolders to aid closing those files and moving scanners are attractive, but lack the in organization and navigation. them to storage. Recall the times ability to handle odd size docu- Working with documents in dig- you’ve gone to storage to retrieve a ments, books and magazines. ital format requires a significant single piece of paper. Now consid- What you need is a scanner that shift in thinking. But consider what er keeping all those documents in combines the benefits of flatbed

64 Georgia Bar Journal and sheet-fed models and has the interface card. Both USB and SCSI filed electronically are converted to ability to acquire images at a rate of come in varying standards that PDF files (if not already in that for- at least 10 pages per minute (ppm). transmit data at different rates. mat). Current versions of Word and Scanners in this category start at There are advantages and disad- WordPerfect contain drivers to pub- around $800 and the prices go up vantages to both connection sys- lish word processing files to PDF. from there. Whether you realize it tems. Do some research, talk to a The federal courts are moving to an or not, two key pieces of your office consultant or a geek friend to see electronic filing system, again using infrastructure are rated on a page what will work best for you. Some the PDF format. With courts using per minute basis—your printer and scanners can be connected directly PDF, it is the perfect standard for photocopier. Because the scanner to a local area network (LAN) by use in your law office. in combination with a printer will way of a builtin network interface In addition to using Acrobat for replace the photocopier, the page card (NIC). These scanners, some- acquiring images, this program per minute rating is a prime factor times referred to as “walk-up” makes working with digital docu- to consider. When shopping on the models (because anyone can walk ments easier than shuffling paper. basis of pages per minute, be sure up and scan a document, much like Acrobat should not be confused with to consider the capacity of the auto- using a photocopier), are usually Adobe Reader; the latter being a free matic document feeder (ADF). A more expensive. program that anyone with an scanner that runs at 20 ppm with a Next, you will need an imaging Internet connection can obtain and 25-page ADF will need constant application (you’re going to capture that you can distribute freely with attention. Next, consider your need images of all incoming documents). your PDF document collections. For to acquire color images. Also, con- Once upon a time, the choice of example, you can add bookmarks sider the frequency at which you imaging applications was difficult and sticky notes to image only files. receive and may need to image and complex. Today, Acrobat has If the files have a text background, documents printed on both sides of become the standard for document you can highlight (pick your color, the page. Some higher-priced scan- exchange and provides an easy way any color), underline and strike- ners come with a manual duplex- to convert paper documents to digi- through. PDF files with background ing feature; some of the lower tal files. Acrobat provides good text can be searched; image only files priced high speed scanners can image acquisition capabilities, the cannot be searched, but information handle two sided documents ability to perform optical character contained in the document summary through software (feed the docu- recognition (OCR) on the images or in attached notes will be included ments through, acquire images of while retaining an exact replica of in indexes of document collections. side one, then turn the stack over the scanned pages, a variety of easy As your new scanner begins to and acquire images of side two, the to use annotation or commenting capture digital images of all incom- software then collates the pages). tools, and easy sharing with other ing paper, you will need a new set Scanners, unlike photocopiers, users. Many state courts have of filing cabinets to store all those are not stand-alone devices; scan- implemented systems for filing doc- documents. These filing cabinets ners, like printers, must be connect- uments with the courts; documents will, of course, be electronic com- ed to a computer or local area network (LAN). The method of connection will have an impact on the D. Jeff DeLancey, CPA, PC speed at which documents can be Certified Public Accountant/Certified Fraud Examimer scanned and saved. There are basi- cally two options for connecting Forensic Accounting, Financial Investigations the scanner to the computer: & Universal Serial Bus (USB) and Litigation Support Small Computer System Interface (SCSI). USB connections are gener- Suite 250, 9 Lumpkin Street, Lawrenceville, GA 30045 ally plug-and-play, while the SCSI 770-339-9556, 404-358-1060 connection will likely require open- www.jeffdelanceycpa.com [email protected] ing the computer to insert an SCSI

October 2004 65 ponents—typically hard disk The available space for digital backups are actually being drives. Your filing cabinets should document storage continues to made and that you can in fact exist on a hard disk drive shared grow while prices continue to restore files. across a LAN. drop. Contrast that with the fixed The Digital Filing How many filing cabinets will physical space for storing paper you need? It depends, but as a gen- files and the continual increasing System eral rule, when scanned at 300 dpi costs of that storage, and you’ll To complete your paperless (dots per inch, a measure of resolu- have even more reason to move to office, we return to a mostly mental tion), a single scanned page (8.5” by a paperless office. A standard fil- aspect of the process: designing 11”) requires storage space of ing cabinet is 18” wide by 24” and implementing a document approximately 50KB (kilobytes). deep. Allowing 18” to open the management system. You have a This is an average and assumes the drawers and another 18” of document management system image was acquired and stored as human space increases the depth now—you use it to file and retrieve “black and white” or “line draw- to 60”. In other words, a standard paper documents. Your current ing,” not color or gray scale. A sin- filing cabinet has a footprint of system probably sounds something gle drawer in a filing cabinet will 1.5’ x 5’ or 7.5 square feet. To like this: every client matter has a hold approximately 10,000 pages. build that square footage, at $150 file, and somewhere you have an To store the same 10,000 pages elec- per square foot, will cost $1,125 index of all those files (so if you tronically requires 500MB (then you have to heat it, insure it, want to find the Smith file and (megabytes) of storage space. A sin- pay taxes on it, etc.). Renting the can’t remember where in the filing gle compact disc (CD-ROM, CD-R, same footprint at $15 per square system it resides, you go to the or CD-RW), will hold 700MB, or the foot will cost you $112.50 per year index, find the file identifier [i.e., a equivalent of 1.4 file cabinet draw- (plus utilities, insurance, etc.). file number] and then locate the ers. An entire four-drawer filing Would you rather pay the cost for file). Now you knew the document cabinet (40,000 pages), then digital storage or continue ware- you wanted was in the Smith file, requires only 2GB (gigabytes). housing paper files? great, but what if the Smith file Although there are standards If you commit your files to the contains 5,000 or 10,000 or more issues yet to be resolved, prices for digital realm, you can and must pages? At this point, the paper fil- single layer DVD writers have back them up. Think of this as a ing system starts to break down. approached the reasonable range benefit, not a drawback. If your How many sub-folders are you with many under $200. A single paper-based office was severely willing to create, and how do you layer DVD will hold 4.7GB, or the damaged or destroyed you would keep track of them? Unless you equivalent of two four-drawer fil- have not backup copies of your have an absolutely huge number of ing cabinets. 100GB hard disk documents. But with paperless files files, or medium number of really drives currently sell for less than you can have as many copies as huge files, then the paper file sys- $100; that’s the capacity of 50 four- you want in as many separate loca- tem can be replicated, refined and drawer filing cabinets. If you think tions as you want. The choices for expanded in the digital world. in terms of boxes, instead of filing backup systems are beyond the As high tech as scanning and print- cabinets, one box (15.5” x 12” x 10”) scope of this article. However, ing to PDF may sound, the document holds approximately 2,500 pages. regardless of the system you chose, management system adheres to an Those same 2,500 pages require there are three rules to follow. old-fashioned filing cabinet metaphor. only 125MB of digital storage space. n Backup rule number one: The filing cabinet exists in virtual Five boxes of documents will fit on Perform full backups daily; do space (on a computer hard disk drive a single CD-ROM with room to not rely on differential or incre- shared over a local area network). The spare. Even if the space required for mental backups. filing cabinet has a name, “Work” a single page, scanned at 300 dpi, n Backup rule number two: Keep (you may want separate digital filing was doubled to 100KB, 10,000 one or more fairly current full cabinets for Closed Files, pages (one full file cabinet drawer back ups off site. Administrative Files, etc.). Each com- or four boxes), would require only n Backup rule number three: Test puter on the network links to the filing 1GB of electronic storage capacity. the process to make sure that cabinets by mapping one or more net-

66 Georgia Bar Journal work drives, e.g., X:\Work. Now each documents in a given folder are only file through an optical charac- desktop has access to the filing cabinet sorted in year-month-day order. ter recognition (OCR) application. “Work.” Within the filing cabinet are As simple as this may sound, Acrobat document summaries and folders, one for each client, e.g. using the document date as the notes are included in the informa- X:\Work\Smith. If a client has several first part of the file name is tion searched by Explorer. matters then that client folder has a hugely important. Conclusion subfolder for each distinct matter, e.g., n Rule 2: After the date, use a let- X:\Work\Smith\Corporation and ter or letters to identify the Any office can become a paper- X:\Work\Smith\Wills. Within each author or party that generated less office. Just keep in mind that client matter folder are folders for var- the document. For pleadings use setting up and operating a paper- ious types of documents, such as one or more letter to identify the less office requires a shift in think- correspondence, pleadings, expense party that served the document. ing. Anyone can make the shift; receipts, research, privilege, etc. For correspondence use the what are you waiting for? A simple system for electronic author’s initials followed by the filing can be implemented and initials of the recipient. That way David L. Masters is a solo practi- standardized by creating sets of when you look in the correspon- tioner from Montrose in rural west- predefined subfolders for various dence folder you will see all of ern Colorado. He practiced in a small firm setting for 13 years prior types of matters. For example, cre- the correspondence arranged to moving to solo practice in ate one set of empty folders for liti- chronologically with an indica- February 2000. His practice focuses gation matters and another for tion of who wrote the letter and on real estate and business matters, transactions. When you open a to whom each was written (e.g., transactions and litigation, and new matter, simply highlight the X:\Work\Smith\040819 DLM includes personal injury, civil rights, desired folder set, then select all NGT). and employment law matters, for (Control-A), copy, then paste this n Rule 3: After the initials that iden- both plaintiffs and defendants. file structure onto the folder creat- tify the author or party (and in the ed for the new matter. Now, all case of correspondence the recipi- matters of a given type have the ent) add a few descriptive terms same folder structure. You will find that describe the document (e.g. that this filing system can provide X:\Work\Smith\Corres\040819 far more categorization than what DLM NGT ContractEnclosed). you have been using in the paper If you want a system that index- world. You can add as many sub- es all of your files so that you can folders you want, then simply run a computer search to find the drag-and-drop the contents from Smith lease, or that motion to com- one folder to another. File reorgani- pel a psychiatric examination, you zation can’t be much easier. already have it—it’s called The final piece of the document Windows Explorer. You can use management system has to do with Windows Explorer to find files how you name the files within the containing specific words. Keep in folders. Follow three simple rules mind that image-only PDFs are just and your document management that; images only, just digital pho- system will be complete and beau- tocopies of paper documents. tifully organized. Image-only files contain no text n Rule 1: Begin the file name with characters and as a result cannot be the date of the document in indexed or searched. Image-on-text reverse year-month-day order files have an exact image of the (yymmdd). By inserting the date hard-copy with text behind the at the beginning of the file name image and can be searched. Image- (after the path, e.g., on-text files are created by printing X:\Work\Smith\040819) all to PDF or by running a PDF image

October 2004 67 Bono Celebrating the Role of Rural Lawyers in Pro Delivering Civil Justice By Mike Monahan

ity of the state’s lawyers shoulder the work of nto the office walks a young lady with providing access to justice in the other Georgia, the remaining 154 counties. Year two small children in tow. The secretary after year, individual lawyers in the other smiles and acknowledges her by her Georgia demonstrate a surprising commit- I ment to providing legal services to the poor. first name before asking about the reason for The work of rural lawyers is challenging in the visit. The two children wander off to a cor- ways that are different from those of the big city lawyer, different even from solo practi- ner and spread out with some toys. The young tioners in a large urban environment. Over 70 percent of Georgia’s poor live outside the mother nervously proceeds to give the secre- five-county metro Atlanta area. Small town tary some facts as the lawyer walks out to lawyers are far, far outnumbered by the approximately three-quarters of a million greet the young woman. They know each poor who desperately need their services. Additionally, in areas around Dalton, other—she was in school with the lawyer’s Columbus and elsewhere, solo and small- younger sister. He ushers her into his office. firm practitioners are interfacing with ever- growing numbers of special populations. This is pro bono client number one for the day. Latino and Asian-Pacific clients with new and complex issues are joining the home- Several more people will likely walk in the grown population in the long line at the door or phone for free advice before the busi- lawyer’s door. “The many and well-chronicled problems ness day ends. Each of that day’s new legal of the urban poor shouldn’t blind us to the problems can be tracked to a few minutes’ desperate conditions of the many poor people living in rural areas,” says William G. drive from the lawyer’s home, office, church Paul, former president of the American Bar Association.1 The poverty rate for the five or his children’s school. It’s a small town. core counties of Atlanta ranges from 5.6 per- This year the State Bar boasts a member- cent in Gwinnett to 13.8 percent in Fulton.2 ship of 34,897 lawyers, 27,900 of whom are Outside Atlanta, the poverty population per- actively practicing law. Two-thirds of centage climbs significantly, ranging from 3.8 Georgia’s lawyers now work in the five- percent for close-in Fayette County all the county metro Atlanta area, but only a minor- way up to 28.6 percent in Clay County in

68 Georgia Bar Journal With three times as many poor outside Atlanta as in Atlanta, the need for free or reduced-fee civil legal services beyond the perimeter is reaching a critical level. southwest Georgia. Eighty-eight of Georgia’s counties have poverty populations exceeding 15 percent of the local population. Forty-one of these counties have poverty populations exceeding 20 percent! These numbers and numerous anecdotal lawyer stories indicate that the practice of many rural lawyers consists of a steady diet of pro bono (criminal and civil), reduced fee and a constant flow of free advice. Rural lawyers serve on the front lines in their own unique Rural lawyers participate in Be it Tifton, Brunswick, Ellijay or war on poverty. coordinated pro bono programs Perry, lawyers face a tremendous With three times as many poor operated by Georgia Legal Services demand for their services. Pro outside Atlanta as in Atlanta, the Program. On average, volunteer bono is an integral part of their need for free or reduced-fee civil lawyers step up to the plate to han- daily practice for which they legal services beyond the dle about 1,100 cases each year, the should receive more praise. It’s perimeter is reaching a critical majority of which are resolved in high time to celebrate the role of level. Some would say that court or in administrative forums. Georgia’s rural lawyers in provid- when, as now, only 20 percent of Small-town lawyers also help with ing access to justice. the poor who have a legal need CLE programs covering poverty ever obtain a lawyer, the critical law issues. And, as if they weren’t Mike Monahan is the pro bono level has already been reached. focused enough on all the reduced director for the State Bar of That’s probably true. And while fee and pro bono work they do, Georgia. the 20 percent ceiling for legal rural lawyers contribute financially Endnotes services applies to Atlanta as to the rural legal services program 1. Contributions of Public Spirited well, an increasing network of in a participation rate that matches Lawyers, quality social service providers the Atlanta Legal Aid’s million- http://www.abanet.org/pub- and large law firm pro bono proj- dollar campaign. While solo and liced/lawday/talking/contributions.html, August 10, 2004. ects provides a safety valve that small firm lawyers outside Atlanta 2. U.S. Census estimates for 2000, simply does not exist in desper- can’t match the big league firm http://www.census.gov/cgi- ately and persistently poor areas contributions in pure dollars, rural bin/saipe/saipe.cgi. of rural Georgia. lawyers do what they can.

October 2004 69 News Sections’ Bar Year off to Successful Beginning By Johanna B. Merrill

create and store documents and the impact n July 30-31, the Environmental Section on costs in discovery. More than 20 attorneys met for lunch and participated in the pro- Law Section met at the King & gram led by Larry Kunin of Morris, Manning Prince Resort and Spa on St. & Martin and John Hutchins of McKenna O Long & Aldridge. The section’s Litigation Simons Island for the annual Environmental Committee sponsored the meeting, of which Law Institute. This annual seminar offers sec- Hutchins is the new chair. Section chairs and officers gathered at the tion members an opportunity to catch up on Bar Center in Atlanta on Sept. 23 for a brain- storming session. Topics such as meeting recent developments in environmental law and planning, member recruitment and retention to reacquaint themselves with environmental and publications were covered. Represent- atives from ICLE and the Women and attorneys throughout the state. Minorities in the Profession Committee spon- The American Bar Association descended sored a luncheon following the meeting to upon Atlanta in early August for their 2004 promote and discuss the newly formed and Annual Meeting. While the city was filled implemented Speakers’ Clearinghouse. with attorneys from across the country, some Reminder: The sections encourage you to of the State Bar’s sections welcomed them submit your e-mail address to the Bar’s with events. On Aug. 6, the Administrative Membership Department (membership- Law Section, along with the Georgia @gabar.org) as sections are increasingly rely- Association of Administrative Law Judges ing on electronic communication to alert their and Hearing Officers, sponsored a luncheon members about CLE events, social meetings honoring John W. Hardwicke, the executive and pertinent legislative and administrative director of the National Association of information. Administrative Law Judges. Also on Aug. 6, If you are interested in joining one of the the Eminent Domain Section hosted a cock- Bar’s 37 sections, including the newly formed tail reception for real property, land use and Immigration Law or Judicial sections, you may condemnation practitioners attending the remit the appropriate dues payment, along ABA convention at the offices of Pursley with your name, Bar number, address and Lowery Meeks, LLP. name of the section you would like to join to: The Technology Law Section hosted a Membership Department, State Bar of Georgia, quarterly CLE luncheon on Aug. 12 at the 104 Marietta St. NW, Atlanta, GA 30303. Buckhead Club in Atlanta titled “Who Told Johanna B. Merrill is the section liaison of You to Do That?” The discussion covered the State Bar of Georgia. emerging issues regarding the way clients

70 Georgia Bar Journal Law Students Exposed to

Page Ethics, Professionalism Issues By Daniel L. Maguire

ustice Sandra Day O’Connor once

said, “The essence of professional- Jism is a commitment to develop one’s skills to the fullest and to apply that

responsibly to the problems at hand.

Professionalism requires adherence to the

highest ethical standards of conduct and a

willingness to subordinate narrow self-inter- Professionalism est in pursuit of the more fundamental goal

of public service. Because of the tremendous

power they wield in our system, lawyers Photos by Daniel L. Maguire

must never forget that their duty to serve Chilton Varner, a partner with King & Spalding in Atlanta, addresses first-year their clients fairly and skillfully takes priori- Emory law students.

ty over the personal accumulation of wealth. alism. Chilton Varner, a partner with King & Spalding in Atlanta, addressed the group At the same time, lawyers must temper bold gathered in Tull Auditorium on the Emory campus. advocacy for their clients with a sense of Why does the Commission go to such responsibility to the larger legal system lengths to inform new law students about the importance of professionalism and ethics? which strives, however imperfectly, to pro- According to Varner, it is “because we are vide justice for all.” The Chief Justice’s the problem-solvers…there is no profession that spends so much time and energy exam- Commission on Professionalism aims to ining not just what we do, but how we do it.” “There is no reason to be a lawyer if you don’t instill this sense of duty in Georgia’s lawyers. want to make things better, and you can’t make In August, Emory University School of things better if you don’t care about standing for Law held an orientation on professionalism something ... if you don’t stand for the right for its new class of law students. Other law things,” she said. “Lawyers, in a very funda- schools in Georgia held similar orientations, mental way, invest themselves as the personal coordinated by the Commission as part of its guarantee of their work. If we stand for some- efforts to educate lawyers (and lawyers-to- thing, and are recognized for it, it enhances enor- be) on the concepts of ethics and profession- mously what we can accomplish as lawyers.”

October 2004 71 The oath taken by Emory students reads: “I, as a student entering Emory University School of Law, understand that I am joining an academic community and embarking on a professional career. The Law School community and the legal profession share important values that are expressed in the Emory University School of Law Professional Conduct Code. I have read the Code and will conduct my academic, professional and personal life to honor those shared values.”

First-year Emory law students take the oath of professional conduct. (Right) Judge Brenda Cole of the State Court of Fulton County adminis- ters the oath.

Following, Varner’s speech, In addition to the oath, students Other students agreed that the lack Judge Brenda Cole of the State are asked to sign a pledge of pro- of professionalism is a problem in the Court of Fulton County adminis- fessional conduct, which is kept on practice of law today, particularly in tered the oath, students participat- file in the registrar’s office. Similar the public’s perception of lawyers, ed in discussion groups where they oaths are taken at Georgia’s other and they appreciate the attempt to get analyzed hypothetical situations law schools. a head start on the proper mindset. (as students and as lawyers) in The Commission’s efforts are not “Professionalism is a very impor- which they would have to make lost on the students. Slobodan tant part of being a lawyer, and I’m decisions based on ethics and pro- Stupar, a transfer student at glad that Emory stresses this aspect fessionalism. Emory, said he was surprised to as well as the substantive aspects,” The oath taken by Emory stu- find so much time and emphasis said Lindsey Anderson of Palo dents reads: dedicated to professionalism for Alto, Calif., a first-year student. “I, as a student entering Emory incoming students. “I am a transfer “Some lawyers will sacrifice their University School of Law, under- student from a California law sense of professionalism in order to stand that I am joining an academic school and do not recall having get ahead—to the detriment of community and embarking on a professionalism as a part of my themselves, their clients, the profes- professional career. The Law School first-year orientation,” he said. “I sion and our society. I think it is community and the legal profes- think it is a great idea to present the important that we hold ourselves to sion share important values that are entering students with the basic these standards.” expressed in the Emory University tenets of legal professionalism. It School of Law Professional will hopefully create a more coop- Daniel L. Maguire is the adminis- Conduct Code. I have read the erative and civil environment dur- trative assistant for the Bar’s com- Code and will conduct my academ- ing the demanding—and some- munications department and a ic, professional and personal life to times overly competitive—first contributing writer for the Georgia Bar Journal. honor those shared values.” year of law school.”

72 Georgia Bar Journal he Lawyers Foundation Inc. of Georgia sponsors activities to promote charitable, scientific and educational purposes for the public, law students and lawyers. Memorial contributions T 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. Memoriam Gwynn M. Adcock Michael Shane Davis Henry A. Keever Rossville, Ga. Atlanta, Ga. Cartersville, Ga. Admitted 1977 Admitted 1996 Admitted 1951 In Died September 2004 Died August 2004 Died May 2004

Larry E. Blount Wilborn E. Gheesling Jack Knight Athens, Ga. Wichita, Kan. Nashville, Ga. Admitted 1980 Admitted 1973 Admitted 1940 Died May 2004 Died August 2004 Died August 2004

Russell A. Boyd Jr. James B. Gilbert Benjamin R. Lancaster Folkston, Ga. Brunswick, Ga. Centre, Ala. Admitted 1951 Admitted 1941 Admitted 1953 Died July 2003 Died June 2004 Died January 2004

Joseph D. Buccellato George C. Grant Robert N. Leavell Decatur, Ga. Macon, Ga. Athens, Ga. Admitted 1981 Admitted 1938 Admitted 1965 Died July 2004 Died May 2004 Died July 2004

Charles L. Burris Charles G. Hicks Jay E. Loeb Canton, N.C. Decatur, Ga. Atlanta, Ga. Admitted 1949 Admitted 1987 Admitted 1969 Died November 2003 Died August 2004 Died August 2004

George Busbee Syle Paul Hunt James A. Mackay Duluth, Ga. Cornelia, Ga. Atlanta, Ga. Admitted 1951 Admitted 1991 Admitted 1947 Died July 2004 Died March 2004 Died July 2004

John R. Calhoun Robert W. Hurst Robert M. McCartney Savannah, Ga. Atlanta, Ga. St. Simons Island, Ga. Admitted 1957 Admitted 1960 Admitted 1948 Died October 2003 Died July 2004 Died June 2004

David C. Carnahan Justin L. Johnson Robert L. McHan Eatonton, Ga. Atlanta, Ga. Winston, Ga. Admitted 1969 Admitted 1990 Admitted 1950 Died August 2004 Died August 2004 Died August 2004

Wayman E. Cobb Jr. Carroll Payne Jones George E. Oliver Decatur, Ga. Atlanta, Ga. Savannah, Ga. Admitted 1952 Admitted 1934 Admitted 1939 Died July 2004 Died July 2004 Died July 2004

October 2004 73 Bernard K. Rapkin before running for governor. After the Georgia Conservancy. A 1940 Atlanta, Ga. retiring from politics, Busbee graduate of Emory University, he Admitted 1956 became a partner in the Atlanta also earned a law degree from Died March 2004 firm of King & Spalding; he served Emory in 1947 and later served as on several corporate boards and on president of the alumni associa- Robert William Routh the Export Council during the tion and as a university trustee. New Smyrna Beach, Fla. administrations of Jimmy Carter Mackay served in the Coast Admitted 1977 Died May 2004 and Ronald Reagan. He is survived Guard during World War II and by his wife, Mary Beth Busbee; four received the Bronze Star for devo- Nancy L. Rumble children, George D. Busbee Jr. of tion to duty. He established a law Atlanta, Ga. Albany, Beth Kindt of Champaign, practice in Decatur in 1946. Admitted 1979 Ill., Jan Curtis of Atlanta, and Jeff Mackay served in the Georgia Died August 2004 Busbee of Suwanee; two sisters, legislature for six terms. Active in Mrs. Wesley Turton of Cordele and the civil rights struggle, he Richard S. Scott Mrs. Madison Coley of Vienna; a worked to keep Georgia’s public Athens, Ga. brother, Dr. Perry Busbee of schools open during the heated Admitted 1955 Cordele; and 13 grandchildren. debates over desegregation, and Died April 2004 he also organized Georgia Veterans for Majority Rule. In Edward H. Shannon Jay Elliott Loeb, 59, of Gainesville, Ga. Atlanta, died August 1964, Mackay was elected to the Admitted 1969 24. He was a graduate U.S. Congress from Georgia’s 4th Died March 2004 of Washington Univer- District. He helped to pass the sity and Vanderbilt Voting Rights Act and was instru- Charles H. Siegel University Law School, mental in procuring federal aid Atlanta, Ga. and was a partner in the firm of for the Fernbank Science Center Admitted 1966 Olim & Loeb, LLP. Loeb was a for- and Planetarium. The son of a Died July 2004 mer chair of the Bankruptcy Law Methodist minister, Mackay was Section of the Atlanta Bar active throughout his life in the William P. Trotter Association as well as a member of United Methodist Church. At LaGrange, Ga. the Atlanta Bar’s board of direc- Glenn Memorial United Admitted 1947 tors. He was also co-chair of the Methodist Church, he served as Died August 2004 Creditors’ Rights Section in 2003- chair of the Administrative Board Maxine H. Wraggs 04. In May 2004, he was honored and as a Sunday school teacher, Brunswick, Ga. with the Morris W. Macey Lifetime and he represented the church at Admitted 1966 Achievement Award from the State Annual, Jurisdictional and Died June 2004 Bar of Georgia’s Creditor’s Rights General Conferences. He was pre- Section. He was preceded in death ceded in death by his first wife, George D. Busbee, 76, by his parents, Sam and Irene Mary Caroline Lee Mackay, and of Duluth, died July 16. Cohen Loeb of Decatur, Ill., and his his son, James Edward Mackay. He was governor of sister, Linda Loeb. He is survived He is survived by his wife, Sara Georgia from 1975-83, by his wife, Nancy Loeb; two Lee Jackson Mackay of Signal and was the first daughters, Deborah Loeb and Mountain, Tenn.; a daughter, Georgia governor to Kimberly Loeb, and a son, Andrew Kathleen Mackay of Rising Fawn, serve two consecutive four-year Loeb, all of Atlanta; cousins, Fred Ga.; siblings, Donald M. Mackay terms. Busbee was born in Vienna Loeb and Larry Adelman; mother- of Lakeland, Fla.; John Leland and attended Georgia Military in-law, Frances Wasserman; and Mackay of Matthews, N.C.; College and Abraham Baldwin sister-in-law and brother-in-law, Edward H. Mackay of Decatur, College before joining the Navy. Lanie and Jerry Rose. Ga. and Betty Mackay Asbury of After his discharge, he enrolled at Atlanta, Ga.; and many nieces the University of Georgia, earning a James A. Mackay, 85, and nephews. bachelor’s degree in 1949 and a law of Atlanta, died July 2. degree in 1952. He won a seat in the He was a former Georgia House of Representatives Congressman and a in 1956 and served for 18 years founding chairman of

74 Georgia Bar Journal Joseph Henry Lumpkin, Georgia’s First Chief Justice By Paul DeForest Hicks, The University of Georgia Press (2002), 183 pages Reviewed by Erin Chance Review oseph Henry Lumpkin, Georgia’s First

Chief Justice, by Paul DeForest Hicks, Jis an interesting portrayal of one of Book Georgia’s premier judicial statesmen. Hicks, a

descendant of Lumpkin, provides a glimpse

into the justice’s professional and personal

lives and illuminates some of the compelling

issues of the early-to mid-19th century. The

book is a welcome addition to the sparse col-

lection of literature regarding Southern appel-

late judges who made a mark on the judicial

development of the country in what has been

called the “golden age of American law.” Hicks’s narration of Lumpkin’s life logical- ly begins with a history of the Lumpkin fami- W. Cobb, a successful local attorney from a ly and their settlement in Lexington, Ga. noted Georgia family. In 1820, Lumpkin Hicks then outlines Lumpkin’s early life, from passed the bar examination after less than a his birth in 1799 through his early exposure to year of preparation, married his childhood local politics through his family’s many civic sweetheart, and established a legal practice and political connections. The financial suc- with his brother-in-law. Lumpkin’s bound- cess of his father’s farming and real estate less energy and intellect enabled him to adventures allowed Lumpkin to pursue his quickly build a successful legal practice strong intellectual curiosity by attending a while becoming involved in many civic and newly formed private school in Lexington and professional organizations. This civic then matriculating at Princeton University. involvement remained a strong theme Hicks draws the connection between throughout Lumpkin’s life, as did his devo- Lumpkin’s intellectual development and the tion to the law and his family. Lumpkin then growth of his strong Presbyterian values and followed in his father and brother’s footsteps morals, which would subsequently guide by serving in the state Legislature for two many of his legal and social convictions. terms, enjoying the fruits of his familial and Lumpkin returned to Lexington after collegiate connections. graduating from Princeton and prepared for Due to his political visibility and his reputa- the bar examination through the apprentice- tion for unsurpassed intelligence and elocution, ship system by studying law with Thomas Lumpkin’s law practice quickly thrived,

October 2004 75 expanding far beyond Oglethorpe Georgia, with its constitution of every case brought before them, County. He was soon “riding the cir- 1798 prohibiting appellate review not just points of law. cuit” with other lawyers, representing or correction of errors by any court Lumpkin’s judicial persona was clients in all parts of the state, and other than the superior court in characterized by his belief, as an gaining the requisite knowledge of the county where the case was evangelical Christian, that “an the bench and bar of each judicial cir- originally tried. In 1845, after important aspect of his judicial cuit. Circuit riding was required decades of debate regarding role was to aid the advance of civ- because, at this time, Georgia had not appellate review, the Legislature ilization through reform.” He yet created a supreme court, a defi- created the Supreme Court of incorporated into his jurispru- ciency that left no opportunity for Georgia, and Lumpkin was select- dence what legal historians call superior court decisions to be ed as one of the three original “legal instrumentalism,” a practi- appealed or for conflicting superior judges. Although it was 20 years cal concept of the law that com- court decisions to be reconciled. To before the position of chief justice peted with the traditional view of further complicate matters, there was officially established under the law as being based on prece- were no digests of the Georgia Georgia law, Lumpkin was recog- dent. In his decisions, Lumpkin statutes or published rules of proce- nized from the outset as the pre- underscored his belief that eco- dure to assist practitioners. siding judge, due to his 25 years of nomic progress resulting from Unsurprisingly, given these experience as a practicing lawyer free trade and unfettered competi- demands of legal practice, Lumpkin’s and legal scholar. tion was the only way to serve the intellect and eloquence greatly distin- Hicks depicts a young Supreme public interest; to this end he guished him. Court that initially faced such oner- repeatedly ruled in favor of man- During the years that his practice ous difficulties that it is almost ufacturing and commercial enter- was growing, Lumpkin was a dedi- hard to believe it was successful. prises to support economic devel- cated family man to his wife, The Court had no central head- opment in Georgia. Lumpkin’s Callender, and their 10 children. quarters from which to conduct economic jurisprudence was also Lumpkin’s civic, religious, and business; rather, it was required to applied in the cases he decided benevolent involvement also attend sessions in selected cities involving slaves, whom he increased dramatically during this each year. This was a physical viewed as “a portion of the vested period. Lumpkin believed that endurance test in which the partic- wealth and taxable property of “merit is the sure road to fame and ipants had to travel hundreds of the state.” Hicks navigates the fortune” and to achieve the goal of a miles per year—by stagecoach—to evolution of Lumpkin’s thoughts meritocracy, Lumpkin devoted nine different points throughout concerning slavery, colonization, much of his energy throughout his the state. To make matters worse, and secession through the many life to the improvement of education the justices were responsible for all opinions Lumpkin wrote regard- in Georgia at all levels. Among his costs associated with such supreme ing these issues. many activities, he championed pub- “circuit riding,” including food In sum, Hicks does a wonder- lic education for the poor in Georgia, and lodging, out of their relatively ful job of educating the reader was instrumental in the establish- low salaries. The Court had no about Joseph Henry Lumpkin ment of Oglethorpe University, library from which to gain knowl- and the life of the lawyer in the founded Phi Kappa at the University edge of previous decisions or legal early-to mid-19th century. of Georgia, and was one of three theory. Decisions, which were Although the book is sometimes founders of the University of required to be made before the difficult to follow because of its Georgia School of Law. With his son- commencement of the next session loose chronological organization, in-law, T. R.R. Cobb, he provided the of the Court, were written in long- this problem does not overshad- law library for the fledgling law hand without the assistance of a ow the intriguing subject matter. school and found time to lecture stenographer or law clerk. These Joseph Henry Lumpkin, Georgia’s there once a week. decisions were made even more First Chief Justice is an enjoyable From its inception, opposition difficult by the Court’s charge to depiction of a man who shaped to a supreme court had been a review “any error in any decision, much of the current judicial expe- powerful political force in sentence, judgment or decree” in rience in this state.

76 Georgia Bar Journal If I’m Such a Great Lawyer,

Evidence Why Can’t I Win an Argument With My Wife? By Michael R. Hirsh

chance! That would be like Bill Clinton selling his is my official suggestion for a highly sensitive, top secret, military technology to Red China in exchange for a measly few mil- CLE on how husbands can win lion dollars in campaign contributions. Okay,

Anecdotal an argument with their wives. bad example, but you get my point. T So the class would have to be taught by a Such a seminar would be a welcome addition man. But who? And is he going to tell his wife what he’s doing? Yeah, right! Can’t you to “Fascinating Nuances of Debt Collection.” just see it: about halfway through his lecture It really makes perfect sense. Sure, some his cell phone rings. “Yes, dear. I know, dear. naysayers argue that a class like this couldn’t You’re absolutely right, dear. I am clearly be taught because it is virtually impossible— wrong, dear.” except for token acquiescence by the wife— The idea for this CLE struck me during a for a husband to win any argument. remodeling project on my home. Sure, I call it Notice that I have set my sights low. I didn’t say for husbands to win arguments; just that we win one. And I’m not talking about when our wives let us think we’ve won, when all we’ve done is agree with them and do what they wanted all along. I’m talking about real vic- tory here: I don’t know, maybe something like getting to leave the toilet seat in the upright and locked position. Now that would be something! But I’m a realist. There are some difficulties in having such a course offering. Not the least of which is whom would you get to teach it. Would a woman come forward to lead such a discussion? Not a

October 2004 77 a remodeling project now. Back that whatever I decided would be “No, really,” I continue, “what’s then it was trial by ordeal. Every fine. What was I thinking? the matter?” marriage should have this experi- Think of it this way: every deci- “If I tell you, you’ll just get ence. I had completed a major por- sion that we are called upon to mad.” She says. tion of the project when I sum- make can be classified as either “Go ahead, I’m already mad.” moned my wife to the room. I use white shoes or blue shoes. Your So after some thorough explain- the word “summon” only in the wife asks you which you like best. ing and airtight reasoning on my nicest sense of the word. The dictates of reason and logic part, the virtues of the current When she appeared in the door- inescapably lead you to conclude lighting arrangement are extolled. I way, I asked the question that thou- that blue is the superior choice. address the expense of changing sands of husbands have asked Hint: white is clearly the correct the lights and the difficulty of re- before me: “Honey, what do you answer. My wife really didn’t mean doing the ceiling. Any jury on the think?” Now, for you ladies reading that what I decided would be fine. continent would be convinced this, the last thing any husband real- She meant that the opposite of what beyond any doubt. The men of the ly wants to know is what you think. I decided would be fine. It is clearly panel would be in awe of my com- In the husband profession, we call my fault for not knowing this. pelling logic, the women wooed by this fishing for a compliment. Several hours later my choice of my impassioned eloquence. So I ask and immediately start lighting fixture was installed and the My wife of over two decades, my thinking what her response might ceiling was finished. (I did not make friend, my companion, the mother be: “Dear, this is so amazing, you the ‘honey-what-do-you-think’ mis- of my children, friend to the friend- are incredible . . . no, you are as a take.) As I was under the bathroom less, and repository of all that has god. Your construction prowess is cabinet installing a new sink, I sud- virtue, was not, however, on the second to none. I can’t wait to show denly felt an exposed high-voltage jury. So I resorted to an authoritari- you how much I appreciate your wire enter the room. After banging an style. The face was red, the veins work. In fact, let’s not wait!” My my head a couple of times on my way bulging. It was truly impressive. fantasy continues for the better part to investigate this hazard, I discov- You should have seen her. of a nanosecond when my wife asks ered my wife standing there. Instead My final words were, “I am not flatly, “Isn’t this hallway just a little of her usual angelic countenance, she going to replace those lights, peri- too narrow?” Oh, that ought to be had a look of grave concern. od!” That, as they say, was that. easy to fix! “What’s wrong?” I ask. All in all, replacing the lights did Shortly after the hallway had “Nothing,” she replies, half an not take me that long. And I have to been widened 6.325 inches, my octave higher than usual. admit (and I do mean have to) that bride and I were discussing what Being an astute observer of evi- the new lights look better. I know kind of light fixtures to install. My dence, I know that something is that my wife likes the new lights too. wife told me she didn’t care and indeed wrong. Maybe the name of the CLE should be “Give in early—it Submissions Wanted saves time.” Michael Hirsh is the managing for New Humor Column partner of the Atlanta, Georgia The Bar Journal would like to see this new column find a perma- office of Hirsh & Heuser, P.C., with nent home in each issue. To achieve this, we will need contribu- offices in Georgia and Kentucky. tions from you! If you have humorous anecdotes that you would The firm practices in the areas of like to share from your practice, from the courtroom, or just business, business litigation, criminal defense and selected personal from your day-to-day lawyer life, we want to hear about it. injury matters. Hirsh is also avail- Please limit submissions to 500 words. able for consultation on home Send your submissions to: remodeling projects (especially Humor Column, Georgia Bar Journal, 104 Marietta St. NW, Suite lighting questions) and may be reached at [email protected]. 100, Atlanta, GA 30303; [email protected]

78 Georgia Bar Journal CLE

Note: To verify a course that you do not see listed, please call the CLE Department at (404) 527-8710. Also, ICLE seminars only list total CLE hours. For a breakdown, call (800) 422-0893. Calendar ICLE Securities Litigation October 2004 Atlanta, Ga. 6 CLE Sept. 29—Oct. 1 14 ICLE Insurance Law Institute ICLE Atlanta, Ga. Class Actions 12 CLE Atlanta, Ga. 6 CLE 1 ICLE ICLE Effective Legal Negotiations and Settlements Automobile Insurance Law Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE ICLE ICLE Construction Law for the GP Winning Before Trial Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE 15 ICLE Advanced Health Care Law ICLE Atlanta, Ga. Advanced Slip and Fall Cases 6 CLE Atlanta, Ga. 6 CLE 6 ICLE ICLE Employers’ Duties and Problems Technology Law Institute Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE 7 ICLE Professional and Ethical Dilemmas ICLE Atlanta, Ga. Title Standards 3 CLE Atlanta, Ga. 6 CLE 21 7-9 ICLE Criminal Law ICLE Atlanta, Ga. Workers’ Compensation Law Institute 6 CLE St. Simons Island, Ga. 13 CLE 21-22 ICLE ICLE Business Law Institute Solo & Small Firm Institute Atlanta, Ga. Savannah, Ga. 12 CLE 12 CLE 22 8 ICLE ICLE Zoning Tax with George Schain Atlanta, Ga. Atlanta, Ga. 6 CLE 7 CLE

October 2004 79 ICLE ICLE Mercer Professionalism Symposium Professionalism, Ethics Macon, Ga. and Malpractice 6 CLE Atlanta, Ga. and GPTV Statewide 3 CLE 27

ICLE LORMAN BUSINESS CENTER, INC. Selected Issues in Estate Planning Construction Law: From Bidding to Final Payment Atlanta, Ga. Atlanta, Ga. 4 CLE 6.7 CLE 28 11

Calendar ICLE ICLE MBA for Lawyers Commercial Real Estate Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE

ICLE LORMAN BUSINESS CENTER, INC. Loan Officer: An A to Z Approach

CLE American Justice System Marietta, Ga. Atlanta, Ga. 3 CLE 6 CLE 29 11-13

ICLE ICLE Health Care Fraud Medical Malpractice Institute Atlanta, Ga. Amelia Island, Fla. 6 CLE 12 CLE 12 ICLE Georgia Personal Injury Practice ICLE Atlanta, Ga. Nuts & Bolts of Family Law 6 CLE Atlanta, Ga. 6 CLE

ICLE November 2004 Buying and Selling Private Businesses Atlanta, Ga. 4 6 CLE ICLE LORMAN BUSINESS CENTER, INC. Premises Liability Zoning and land Use in Georgia Atlanta, Ga. Athens, Ga. 6 CLE 6 CLE ICLE 12-16 Handling Administrative License Matters Atlanta, Ga. ICLE 6 CLE Entertainment & Sports Law Institute Cabo San Lucas, Mexico 5 12 CLE ICLE ICLE Adoption Law Intellectual Property Law Institute Atlanta, Ga. Cabo San Lucas, Mexico 6 CLE 12 CLE ICLE 15 Advocacy & Evidence Atlanta, Ga. NBI, INC. 6 CLE Find It Free & Fast on the Net: Advanced Internet Strategies for Ga. Atlanta, Ga. 6 CLE

80 Georgia Bar Journal 17 2-3 CLE

NBI, INC. ICLE Keys to Successful Pre-Trial Preparation in Georgia Corporate Counsel Institute Atlanta, Ga. Atlanta, Ga. 6 CLE including 0.5 Ethics and 6 Trial 12 CLE

18-29 3 Calendar

ICLE ICLE ADR Institute Landlord and Tenant Law Lake Lanier, Ga. Atlanta, Ga. 12 CLE 6 CLE

18 ICLE ICLE Trial Advocacy Economic Development in Georgia Atlanta, Ga. and GPTV Statewide Atlanta, Ga. 6 CLE 6 CLE ICLE ICLE Section 1983 Litigation Secured Lending Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE NBI, Inc. 19 Handling Medical Negligence Cases in Georgia Atlanta, Ga. ICLE 6 CLE with 0.5 Ethics Corporate Litigation Atlanta, Ga. 6 6 CLE NBI, Inc. ICLE Georgia Land Use: Current Issues in Subdivision Winning Case Settlements Annexation and Zoning Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE 9 ICLE Recent Developments ICLE Atlanta, Ga. and GPTV Statewide Laying Evidentiary Foundations 6 CLE Atlanta, Ga. 6 CLE 21

PROFESSIONAL EDUCATION SYSTEMS, INC. ICLE How to Evaluate Orthopedic Injury Cases for Trial or Taxation and the Georgia DOR Settlement Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE with 6 Trial NBI, Inc. Handling Divorce Cases form Start to Finish Atlanta, Ga. December 2004 6 CLE with 0.5 Ethics

2 10 ICLE ICLE Georgia Tort law White Collar Crime Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE ICLE NBI, INC. Taking Expert Depositions Basic Bankruptcy Litigation in Georgia Atlanta, Ga. Atlanta, Ga. 6 CLE 6 CLE including 0.5 Ethics and 6 Trial

October 2004 81 ICLE Basic Fiduciary Practice Did Atlanta, Ga. and GPTV Statewide 6 CLE you 13 Know? NBI, Inc. An Advanced Look At Georgia Real Estate Law  The State Bar of Georgia is the Atlanta, Ga. ninth largest bar in the United 6.7 CLE with 0.5 Ethics States. 14-15  There are 8,350 out-of-state

Calendar ICLE members. Selected Video Replays Atlanta, Ga.  26% of the Bar is under age CLE 35. 14  32% of the Bar is female.

CLE NBI, Inc.  More than 18,650 members Georgia Estate Planning and Drafting Fundamentals Atlanta, Ga. reside in metro Atlanta. 6 CLE with 0.5 Ethics  Anticipated growth of 1,300 15 new members each year. NBI, Inc.  There are 23,380 section Insurance Coverage Law in Georgia members with 17,070 Atlanta, Ga. individual members who belong 6 CLE with 0.5 Ethics to one or more sections. 16  62% overall growth from 1990 ICLE to 2004. A Day on Trial Atlanta, Ga.  35,438 members in good 6 CLE standing. ICLE  Bar members cover a wide age Matrimonial Law Practice Workshop range from those born in 1902 Atlanta, Ga. 6 CLE and admitted in 1925 to those born in 1979 and admitted in NBI, Inc. 2002. Admissibility of Evidence and Expert Testimony in Georgia  66% of our members list an e- Atlanta, Ga. mail address. 6 CLE including 0.5 Ethics and 6 Trial  113 members reside outside 16-17 the United States in 26 foreign ICLE countries. Defense of Drinking Drivers Institute Atlanta, Ga.  789 members have been 12 CLE admitted to practice for 50 17 years or more.

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82 Georgia Bar Journal Notices NOTICE OF FILING OF FORMAL ADVISORY OPINIONS IN SUPREME COURT

Second Publication of Supreme Court Rule 10, counting from the date of the order granting review. The final Proposed Formal Advisory determination may be either by written opin- Opinion Request No. 02-R1 ion or by order of the Supreme Court and Hereinafter known as shall state whether the Formal Advisory Opinion is approved, modified, or disap- “Formal Advisory Opinion proved, or shall provide for such other final No. 04-1” disposition as is appropriate.

Members of the State Bar of Georgia are In accordance with Rule 4-223(a) of the hereby NOTIFIED that the Formal Advisory Rules and Regulations of the State Bar of Opinion Board has issued the following Georgia, any Formal Advisory Opinion Formal Advisory Opinion, pursuant to the issued pursuant to Rule 4-403 which is not provisions of Rule 4-403(d) of Chapter 4 of the thereafter disapproved by the Supreme Rules and Regulations of the State Bar of Court of Georgia shall be binding on the State Georgia approved by order of the Supreme Bar of Georgia, the State Disciplinary Board, Court of Georgia on May 1, 2002. This opin- and the person who requested the opinion, in ion will be filed with the Supreme Court of any subsequent disciplinary proceeding Georgia on or after October 15, 2004. involving that person.

Rule 4-403(d) states that within 20 days of Pursuant to Rule 4-403(e) of Chapter 4 of the filing of the Formal Advisory Opinion or the Rules and Regulations of the State Bar of the date the publication is mailed to the Georgia, if the Supreme Court of Georgia members of the Bar, whichever is later, the declines to review the Formal Advisory State Bar of Georgia or the person who Opinion, it shall be binding only on the State requested the opinion may file a petition for Bar of Georgia and the person who requested discretionary review thereof with the the opinion, and not on the Supreme Court, Supreme Court of Georgia. The petition shall which shall treat the opinion as persuasive designate the Formal Advisory Opinion authority only. If the Supreme Court grants sought to be reviewed and shall concisely review and disapproves the opinion, it shall state the manner in which the petitioner is have absolutely no effect and shall not con- aggrieved. If the Supreme Court grants the stitute either persuasive or binding authority. petition for discretionary review or decides If the Supreme Court approves or modifies to review the opinion on its own motion, the the opinion, it shall be binding on all mem- record shall consist of the comments received bers of the State Bar and shall be published in by the Formal Advisory Opinion Board from the official Georgia Court and Bar Rules man- members of the Bar. The State Bar of Georgia ual. The Supreme Court shall accord such and the person requesting the opinion shall approved or modified opinion the same follow the briefing schedule set forth in precedential authority given to the regularly published judicial opinions of the Court.

October 2004 83 STATE BAR OF GEORGIA SAFEKEEPING PROPERTY - GENERAL ISSUED BY THE FORMAL ADVISORY OPINION BOARD (a) Every lawyer who practices law in Georgia, PURSUANT TO RULE 4-403 whether said lawyer practices as a sole practitioner, or as a member of a firm, association, or professional ON AUGUST 6, 2004 corporation, and who receives money or property on FORMAL ADVISORY OPINION NO. 04-1 behalf of a client or in any other fiduciary capacity, (Proposed Formal Advisory Opinion shall maintain or have available a trust account as Request No. 02-R1) required by these Rules. All funds held by a lawyer for a client and all funds held by a lawyer in any Question Presented: other fiduciary capacity shall be deposited in and administered from such account. May a lawyer participate in a non-lawyer entity cre- * * * * * ated by the lawyer for the purpose of conducting resi- (c) All client’s funds shall be placed in either an dential real estate closings where the closing proceeds interest-bearing account with the interest being paid received by the entity are deposited in a non-IOLTA to the client or an interest-bearing (IOLTA) account interest bearing bank trust account rather than an with the interest being paid to the Georgia Bar IOLTA account? Foundation as hereinafter provided.

Summary Answer: (1) With respect to funds which are not nominal in amount, or are not to be held for a short The closing of a real estate transaction constitutes the period of time, a lawyer shall, with notice to the practice of law. If an attorney supervises the closing clients, create and maintain an interest-bearing conducted by the non-lawyer entity, then the attorney trust account in an approved institution as is a fiduciary with respect to the closing proceeds and defined by Rule 1.15(III)(c)(1), with the interest closing proceeds must be handled in accordance with to be paid to the client. No earnings from such Rule 1.15 (II). If the attorney does not supervise the an account shall be made available to a lawyer closings, then, under the facts set forth above, the or law firm. lawyer is assisting a non-lawyer in the unauthorized (2) With respect to funds which are nominal in practice of law. amount or are to be held for a short period of time, a lawyer shall, with or without notice to the Opinion: client, create and maintain an interest-bearing, government insured trust account (IOLTA) in The closing of a real estate transaction in the state of compliance with the following provisions: Georgia constitutes the practice of law. See, In re UPL * * * * * Advisory Opinion 2003-2, 277 Ga. 472, 588 S.E. 2d 741 As set out in Subsection (c)(2) above, this Rule applies (Nov. 10, 2003), O.C.G.A. §15-19-50 and Formal to all client funds which are nominal or are to be held for Advisory Opinions Nos. 86-5 and 00-3. Thus, to the a short period of time. As closing proceeds are not nom- extent that a non-lawyer entity is conducting residential inal in amount, but are to be held for only a short peri- real estate closings not under the supervision of a od of time, they are subject to the IOLTA provisions. lawyer, the non-lawyer entity is engaged in the practice Therefore, the funds received in connection with the real of law. If an attorney supervises the residential closing1, estate closing conducted by the lawyer or the non- then that attorney is a fiduciary with respects to the clos- lawyer entity in the circumstances described above ing proceeds. If the attorney participates in but does not must be deposited into an IOLTA compliant account. supervise the closings, then the non-lawyer entity is engaged in the unauthorized practice of law. In such Endnotes event, the attorney assisting the non-lawyer entity would be doing so in violation of Rule 5.5 of the Georgia 1. Adequate supervision would require the lawyer to Rules of Professional Conduct.2 be present at the closing. See FAO . . . .etc. 2. Rule 5.5 states in relevant part that: UNAUTHORIZED When a lawyer is supervising a real estate closing, the PRACTICE OF LAW lawyer is professionally responsible for such closings. Any A lawyer shall not: closing funds received by the lawyer or by persons or entities supervised by the lawyer are held by the lawyer as a * * * * * * (b) assist a person who is not a member of the bar fiduciary. The lawyer’s responsibility with regard to such in the performance of activity that constitutes the funds is addressed by Rule 1.15 (II) of the Georgia Rules of unauthorized practice of law. Professional Conduct which states in relevant part: The maximum penalty for a violation of this Rule is disbarment.

84 Georgia Bar Journal NOTICE OF MOTION TO AMEND THE RULES AND REGULATIONS OF THE STATE BAR OF GEORGIA

No earlier than thirty days after the publication of It is proposed that certain provisions of Part VI this Notice, the State Bar of Georgia will file a Motion to of the Rules of the State Bar of Georgia regarding the Amend the Rules and Regulations for the Organization arbitration of fee disputes be amended as follows: and Government of the State Bar of Georgia pursuant to Part V, Chapter 1 of said Rules, 2003-2004 State Bar of Preamble Georgia Directory and Handbook, p. H-6 to H-7 (hereinafter referred to as “Handbook”). [second paragraph] I hereby certify that the following is the verbatim text A unique feature of this program provides that of the proposed amendments as approved by the Board where the petitioner is a client whose claim after of Governors of the State Bar of Georgia. Any member investigation appears to warrant a hearing, and the of the State Bar of Georgia who desires to object to the respondent lawyer refuses to be bound by any proposed amendments to the Rules is reminded that he resulting award, the matter will not be dismissed, or she may only do so in the manner provided by Rule but an ex parte arbitration hearing will may be held. 5-102, Handbook, p. H-6. If the outcome of this hearing is in the client’s favor, This Statement, and the following verbatim text, are the State Bar will provide a lawyer at no cost, other intended to comply with the notice requirements of Rule than actual litigation expenses, to the client to rep- 5-101, Handbook, p. H-6. resent the client in subsequent litigation to adjust Cliff Brashier the fee in accordance with the arbitration award. Executive Director State Bar of Georgia Rule 6-102. Membership.

IN THE SUPREME COURT The Committee shall consist of three six lawyer STATE OF GEORGIA members and two three public members who are not lawyers. The three six lawyer members shall be IN RE: STATE BAR OF GEORGIA appointed by the President of the State Bar, and the Rules and Regulations for its two three public members shall be appointed by the Organization and Government Supreme Court of Georgia.

MOTION TO AMEND 2004-3 Rule 6-201. Jurisdiction.

MOTION TO AMEND THE RULES AND The Committee may accept jurisdiction over a fee REGULATIONS OF THE dispute only if all of the following requirements are STATE BAR OF GEORGIA satisfied: ….. COMES NOW, the State Bar of Georgia, pursuant to the authorization and direction of its Board of (d) The disputed fee: Governors in regular meetings held on June 19, 2004, and upon the concurrence of its Executive Committee, (1) exceeds ($750) seven hundred and fifty presents to this Court its Motion to Amend the Rules dollars. and Regulations of the State Bar of Georgia as set forth in an Order of this Court dated December 6, 1963 (219 (2) is not one the amount of which is gov- Ga. 873), as amended by subsequent Orders, 2003-2004 erned by statute or other law, nor one the full State Bar of Georgia Directory and Handbook, pp. 1-H, et amount or all terms of which have already seq., and respectfully moves that the Rules and been fixed or approved by order of a court. Regulations of the State Bar of Georgia be amended in ….. the following respects: (g) The fee dispute is not the subject of litigation I. in a court of record at the time the Petition for Proposed Amendments to Part VI, Arbitration of Fee arbitration is filed. Disputes, of the Rules of the State Bar of Georgia

October 2004 85 Rule 6-601. Special Case Procedure. Counsel for the State Bar of Georgia …..

(b) The arbitrator panel shall be selected by the ______Committee or its staff, and William P. Smith, III General Counsel (1) in cases involving amounts in dispute State Bar No. 665000 over $2,500 shall consist of two (2) attorneys who have practiced law actively for at least five (5) years and one (1) non-lawyer public ______member. Robert E. McCormack (2) in cases involving amounts in dispute of Deputy General Counsel $2,500 or less, the arbitration panel may con- State Bar No. 485375 sist of one arbitrator who shall be a lawyer who has practiced law actively for at least OFFICE OF THE GENERAL COUNSEL five (5) years. State Bar of Georgia ….. 104 Marietta Street, NW – Suite 100 Atlanta, Georgia 30303 SO MOVED, this ______day of ______, 2004 (404) 527-8720

UPL Advisory Opinion No. 2004-1

Issued by the Standing Committee on the Unlicensed As far as the preparation of a lien, the Committee Practice of Law on August 6, 2004. looks in part to O.C.G.A. §15-19-50(3), which states that the practice of law includes “[t]he preparation of legal Note: This opinion is only an interpretation of the instruments of all kinds whereby a legal right is law, and does not constitute final action by the secured.” The Supreme Court of Georgia has recently Supreme Court of Georgia. Unless the Court grants indicated that O.C.G.A. §15-19-50(3) continues to aid review under Bar Rule 14-9.1(g), this opinion shall be the judiciary in the performance of its functions with binding only on the Standing Committee on the regard to defining the practice of law in this state. In re Unlicensed Practice of Law, the State Bar of Georgia, UPL Advisory Opinion 2003-2, 277 Ga. 472, 474 (2003). and the petitioner, and not on the Supreme Court of See also In re UPL Advisory Opinion 2002-1, 277 Ga. Georgia, which shall treat the opinion as persuasive 521, 522 (2004). authority only. A lien is “‘a hold or claim which one person has on QUESTION PRESENTED the property of another as a security for some debt or charge.’” Waldroup v. State, 198 Ga. 144, 149 (1944). See Is the preparation or filing of a lien considered the also Miller v. New Amsterdam Cas. Co., 105 Ga. App. unlicensed practice of law if it is done by someone other 174, 176 (1961). With regard to real estate, a lien encum- than the lienholder or a licensed Georgia attorney? bers title. Lincoln Log Homes Mktg., Inc., v. Holbrook, 163 Ga. App. 592, 594 (1982). There are a variety of liens SUMMARY ANSWER available under Georgia law. See, e.g., O.C.G.A. §44-14- 320. They may vary as to the particulars of their opera- A nonlawyer’s preparation of a lien for another in tion, but all assert the perceived rights of the lienholder. exchange for a fee is the unlicensed practice of law. The A lien affects the status of title as to the relevant proper- ministerial act of physically filing a lien with a court is ty, and is an instrument designed to secure a legal right. not the practice of law. It follows that under O.C.G.A. §15-19-50(3) the preparation of a lien constitutes the practice of law. OPINION During the public hearing regarding this matter, the There are two components to the question presented Committee heard a presentation made by a nonlawyer above, viz., the preparation of a lien and the filing of a business entity that prepares mechanics’ and material- lien. With regard to the latter, the Committee is of the men’s liens for others. The customer provides the com- opinion that the mere ministerial act of physically filing pany with relevant background information, and the a lien with a court does not in itself constitute the prac- company performs a title search, prepares a legal tice of law. description of the property, and inserts the description

86 Georgia Bar Journal into the lien document. The com- it is not itself a lien. Moreover, an the transaction would effectively pany then prints the lien, files it abstract, being a history of the title eviscerate O.C.G.A. §15-19-50(3), with the appropriate court, and to land, is at its core a neutral, because the nonlawyer preparer of provides notice to the property informational document. A lien, a legal document could always owner. According to the company, on the other hand, asserts a legal claim to be charging the fee for its employees do not provide legal claim. Given the foregoing, it something other than the prepara- advice to the customer. The com- would be unreasonable to read tion of the instrument. An inter- pany claims that this activity is not O.C.G.A. §15-19-53 as extending pretation of O.C.G.A. §15-19-50(3) the practice of law, notwithstand- to the preparation of liens. that leads to such a result cannot be ing the existence of O.C.G.A. §15- a correct one. Rather, it seems 19-50(3). In the alternative, the company more sensible to examine the rea- states that its activity is allowed son the customer contacted the The company first asserts that under O.C.G.A. §15-19-52, which nonlawyer document preparer, the its activity is essentially tanta- does not prohibit drafting a legal expectations of the customer, and mount to performing a title search instrument for another “provided the ultimate product of the transac- and preparing an abstract of title, it is done without fee and solely at tion. In the situation described an activity allowed by O.C.G.A. solicitation and the request and above, the goal of the customer is §15-19-53. An abstract of title under the direction of the person, to procure a lien, not a mere “should be a complete showing in firm, or corporation desiring to abstract of title or legal description more or less abbreviated form of execute the instrument.” The com- of property. The customer in fact all instruments appearing of pany claims that it collects a fee obtains the lien, and pays the com- record in any way affecting the from its customer solely for prepar- pany for its services in this regard. title, either adversely or beneficial- ing an abstract of title or providing Under the circumstances, the trans- ly….” 3 Hinkel, Pindar’s Georgia a legal description of the property, action involves the practice of law Real Estate Law and Procedure, and that it then prepares the lien as set out in O.C.G.A. §15-19-50(3), §26-7, p. 44 (6th ed. 2004). In the free of charge. and the consequent furnishing of Committee’s view, it is not proper legal services within the meaning to equate a title search or abstract The Committee views the latter of O.C.G.A. §15-19-51(a)(4). of title with a lien. As noted contention as being disingenuous. above, an abstract identifies a lien; Accepting such a deconstruction of

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