June 2003 Q Volume 8 Q Number 6 TaxTax ApportionmentApportionment ProblemsProblems UnderUnder thethe GeorgiaGeorgia ProbateProbate CodeCode Quick Dial Attorney Discipline (800) 334-6865 ext. 720 (404) 527-8720 Consumer Assistance Program (404) 527-8759 Conference Room Reservations (404) 527-8712 Fee Arbitration (404) 527-8750 June 2003 Volume 8 Number 6 CLE Transcripts (404) 527-8710 Diversity Program (404) 527-8754 ETHICS Hotline (800) 682-9806 (404) 527-8741 Editorial Board Georgia Bar Foundation/IOLTA (404) 588-2240 Rebecca Ann Hoelting Georgia Bar Journal (404) 527-8736 Editor-in-Chief Lawyer Assistance Program (770) 612-1122 (800) 327-9631 Scott Fain Bertschi W. Fray McCormick Lawyers Foundation of Georgia (404) 659-6867 Elizabeth Lee Branch E. Peyton Nunez Law Practice Management (404) 527-8772 Erin Reynolds Chance Erick H. Rock Membership Records (404) 527-8777 Charles Madden Cork III Cynthia B. Smith Meetings Information (404) 527-8790 Lynda Carney Crum John I. Spangler III Pro Bono Project (404) 527-8763 Professionalism (404) 225-5040 John Michael Gross Robert R. Stubbs Sections (404) 527-8774 Michelle Wilkins Johnson Jerre Bailey Swann Jr. Unauthorized Practice of Law (404) 527-8743 Sarah Howard Lamar Kristin H. West Young Lawyers Division (404) 527-8778 Marcus D. Liner Pamela Y. White-Colbert Manuscript Submissions Advisors The Georgia Bar Journal welcomes the submission of Theodore Harris Davis Jr. unsolicited legal manuscripts on topics of interest to D. Scott Murray the State Bar of Georgia or written by members of the State Bar of Georgia. Submissions should be 10 to 12 Marisa Anne Pagnattaro pages, double-spaced (including endnotes) and on let- ter-size paper. Citations should conform to A UNIFORM Editors Emeritus SYSTEM OF CITATION (17th ed. 2000). Please address unsolicited articles to: Rebecca Ann Hoelting, State Bar Marisa Anne Pagnattaro, 01-02 L. Dale Owens, 87-89 of Georgia, Communications Department, 104 D. Scott Murray, 00-01 Donna G. Barwick, 86-87 Marietta St. NW, Suite 100, Atlanta, GA 30303. William Wall Sapp, 99-00 James C. Gaulden Jr., 85-86 Authors will be notified of the Editorial Board’s deci- Theodore H. Davis Jr., 97-99 Jarry B. Blackstock, 84-85 sion regarding publication. L. Brett Lockwood, 95-97 Steven M. Collins, 82-84 The Georgia Bar Journal welcomes the submission of Stephanie B. Manis, 93-95 Walter M. Grant, 79-82 news about local and circuit bar association happen- William L. Bost Jr., 91-93 Stephen E. Raville, 77-79 ings, Bar members, law firms and topics of interest to Charles R. Adams III, 89-91 Robert H. Walling, 75-77 attorneys in Georgia. Please send news releases and other information to: Joe Conte, Director of Communications, 104 Marietta St. NW, Suite 100, Officers of the State Bar of Georgia Atlanta, GA 30303; phone: (404) 527-8736; James B. Durham President [email protected]. William D. Barwick President-Elect Robert D. Ingram Secretary Disabilities George Robert Reinhardt Jr. Treasurer If you have a disability which requires printed materi- James B. Franklin Immediate Past President als in alternate formats, please contact the ADA coor- Derek J. White YLD President dinator at (404) 527-8700 or (800) 334-6865. Andrew W. Jones YLD President-Elect Headquarters Peter J. Daughtery YLD Past President 104 Marietta St. NW, Suite 100 Atlanta, GA 30303 Communications Committee (800) 334-6865 (404) 527-8700 FAX (404) 527-8717 William H. Dodson II Chairperson www.gabar.org Aasia Mustakeem Vice-Chairperson South Georgia Office 244 E. Second St. (31794) P.O. Box 1390 Tifton, GA 31793-1390 Communications Staff (800) 330-0446 (912) 387-0446 FAX (912) 382-7435 Joe Conte Director Sarah I. Bartleson Assistant Director Daniel L. Maguire Administrative Assistant June 2003 Volume 8 Number 6 Legal 16 Tax Apportionment Problems under the Georgia Probate Code By James R. Robinson Features On the Cover 24 Professionalism in the Principle-CCentered Law Practice By Chief Judge G. Alan Blackburn The Georgia Probate Code as 30 Lawyers: Guardians of Freedom it relates to tax apportionment 4is discussed at length in an By Anthony Lewis article by James R. Robinson. 37 State Bar Navigates Legislature’s ‘Perfect Storm’ See page 16. By Mark Middleton 41 BOG Meets in Masters Territory for Spring Meeting By Daniel L. Maguire 44 Diversity CLE and Luncheon Bring Issues to Light By Sarah I. Bartleson 47 IOLTA Wins Monumental Victory By Len Horton 50 Lawyers Foundation to Award Challenge Grants Departments By Lauren Larmer Barrett 56 Volunteerism in the Profession 4 Letter to the Editor By Sarah I. Bartleson 60 Pro Bono Honor Roll 6 From the President 9 From the Executive Director Annual Fiction Writing Competition 64 The Devil Came Down 12 From the YLD President By Brad Elbein 70 Bench & Bar Publisher’s Statement The Georgia Bar Journal (ISSN-1085-1437) is published six times per year (bi-monthly) by the State Bar of 73 Office of the General Counsel Georgia, 104 Marietta St. NW, Suite 100, Atlanta, GA 30303. © State Bar of Georgia 2003. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postage paid in Atlanta, GA. Opinions and conclusions expressed in articles 75 Lawyer Discipline 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 fur- 78 Law Practice Management nished upon request. Publishing of an advertisement does not imply endorsement of any product or serv- ice offered. POSTMASTER: Send address changes to same address. 80 Voluntary Bar 83 Professionalism Page Advertisers Index 88 In Memoriam AAA Attorney Referral Service. 19 LawDocsXpress . 7 ABA Members Retirement Program . 33 Lawyers Direct. 35 89 CLE Calendar Arthur Anthony. 49 LexisNexis . IFC Baker, Donelson . 1 Mainstreet . 13 91 Notices Butterfield Reimer & Associates. 19 Mitchell Kaye Valuation . 14 Daniel Turner Builders, Inc.. 19 Netronics . 19 94 Classified Resources Daniels-Head Insurance . 96 Nextel . IBC Elizabeth Mehlman, J.D., Ph.D.. 11 Prolegia . 39 Florida Detox. 67 Real Estate Exchange Service . 46 Georgia Juris . 79 SoftPro . 21 Georgia Lawyers Insurance Co. 5 South Georgia ADR . 53 Gilsbar . 45 The Georgia Fund . 15 Golden Lantern . 49 West. 33, 43, BC Spoliation Article Omits Critical Issue Dear Editor: plaint, so that all documents, electronically Editor stored or otherwise, would be preserved. We I read with interest the spoliation article by followed with a request for production of Ms. Wallace. However, the article omits a documents. If a defendant — in our case, a critical issue in spoliation: what happens corporation — is reasonably on notice that when a defendant (or a third party) has the litigation has begun or is imminent, it would evidence that the plaintiff must obtain to be a profound tactical mistake to destroy prove his or her case? documents.” The sole possible remedy is an ex parte While the issue in Linnen — and the issue spoliation order. While such orders are not in each of the three cases before the Georgia uncommon in other states, they are rare to judges above — involved proposed ex parte unheard of in Georgia. In three recent spoliation orders against defendants or their attempts to obtain one (using a form pub- counsel, there is no reason why an ex parte lished in the Texas Bar Journal), Superior spoliation order should be (a) limited to par- Letter to the Court Judge Jefferson Davis granted such ties or their counsel, or (b) be considered an motion ex parte (defendant had plaintiff’s onerous order or an unethical effort. I would computer and internal records), Superior hope that in this era of electronically stored Court Judge Doris Downs denied the motion (and erased) documents, that ex parte spolia- ex parte in another case (defendant had pho- tion orders should be no more unusual than tographs of the construction development for requests for in camera inspections of sensi- which plaintiff had not been paid), and Judge tive documents. Cindy Morris granted the motion ex parte in a third case (defendant’s counsel’s computer John T. Longino, MBA/JD records could confirm by date of document [email protected] creation the manual back-dating by defen- Ellijay, GA dant of critical documents), then vacated the Licensed GA FL TX AK order on a claim by opposing counsel that it was “unethical.” I then sought an opinion from the Formal LETTERS TO THE EDITOR Advisory Opinion Board of the State Bar of The Georgia Bar Journal encourages letters to Georgia on the ethics of seeking an ex parte the Editor from its readers on any substantive spoliation order at the commencement of a topic of general interest or concern to the mem- case; they declined to issue an opinion on the bers of the State Bar of Georgia, however, first issue. consideration will be given to letters written in On Nov. 7, 2001, The American Corporate response to material appearing in the Journal. Counsel Association sponsored a roundtable The Board reserves the right to edit letters for content or clarity and to limit the number of discussion (published by law.com) dis- letters on a given topic, as well as the number cussing this issue and the case of Linnen, et al. of letters from any individual correspondent. v. A.H. Robins Company, Inc., et al., No. 97- Letters also may not be published if space does 2307 (Middlesex Super. Ct. June 15, 1999). not permit. Counsel for Linnen was Alex H. All letters should be e-mailed to MacDonald who stated, in that roundtable [email protected] or addressed to: Editor, Georgia Bar Journal, 104 Marietta St.