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A Slice of Life

A Slice of Life

For English, press1.

For Spanish, press 2.

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 GeorgiaLaw PPractice MManagement PProgramThe Law Practice Management Program is a memberservice to help all Georgia lawyers and their employ-ees put together the pieces of the office managementpuzzle. Whether you need advice on new computersor copiers, personnel issues, compensation, work-flow, file organization, tickler systems, library materi-als or software, we have the resources and training toassist you. Feel free to browse our online forms andarticle collections, check out a book or videotape fromour library, or learn more about our on-site manage-ment consultations and training sessions.

Consumer AAssistance PProgramThe Consumer Assistance Program has a dual pur-pose: assistance to the public and attorneys. CAPresponds to inquiries from the public regardingState Bar members and assists the public throughinformal methods to resolve inquiries which mayinvolve minor violations of disciplinary standardsby attorneys. Assistance to attorneys is of equalimportance. CAP assists attorneys as much as possi-ble with referrals, educational materials, sugges-tions, solutions, advice and preventive informationto help the attorney with consumer matters. Theprogram pledges its best efforts to assist attorneys inmaking the practice of law more efficient, ethicaland professional in nature.

Lawyer AAssistance PProgramThis free program provides confidential assistanceto Bar members whose personal problems may beinterfering with their ability to practice law. Suchproblems include stress, chemical dependency, fam-ily problems and mental or emotional impairment.

Fee AArbitrationThe Fee Arbitration program is a service to the gen-eral public and lawyers of Georgia. It provides aconvenient mechanism for the resolution of fee dis-putes between attorneys and clients. The actual arbi-tration is a hearing conducted by two experiencedattorneys and one non-lawyer citizen. Like judges,they hear the arguments on both sides and decidethe outcome of the dispute. Arbitration is impartialand usually less expensive than going to court.

help

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call,onlyais

away.

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Departments4 From the President

6 From the Executive Director

8 From the YLD President

56 Bench & Bar

60 Office of the General Counsel

61 Lawyer Discipline

63 Law Practice Management

68 Pro Bono

70 Section News

71 Professionalism Page

73 In Memoriam

75 Book Review

77 Anecdotal Evidence

79 CLE Calendar

83 Notices

87 Advertisers Index

88 Classified Resources

Legals10 Timber! —— Falling TTree LLiability iin GGeorgia

By David J. Burge

18 Considering tthe CConsideration AApproach tto CClassifyingGeorgia CContracts IIn PPartial RRestraint oof TTradeBy John K. Larkins Jr.

Features26 The 22003 AAmendment tto tthe GGeorgia CClass AAction SStatute:

A NNew DDay ffor GGeorgia CClass AActions?By Corliss Lawson and Paul Kim

33 A SSlice oof LLife:The DDaily PPractice oof 111 GGeorgia LLawyersBy Johanna B. Merrill and Sarah I. Bartleson

42 Standing UUp ffor tthe LLegal PProfessionBy Judge Toby Prodgers

47 Ode tto TThe FFirst GGeorgia CColonelBy Arthur A. Morrison

50 Notice oof EExpiring BBOG TTerms

52 The TThomas CCounty CCourthouse aat TThomasville:The GGrand OOld CCourthouses oof GGeorgiaBy Wilber W. Caldwell

54 Project ““Legal LLives” 22004: FFulton DDA SSchools EElementaryStudents oon LLaw aand OOrderBy Lyn Vaughn Vann

On the CoverTake a look into the lives of 11Georgia lawyers practicing indifferent areas, page 33.

Pictured on cover, left toright, Bettina Wing-Che Yip,Stanley A. Seymour, LaquettaS. Pearson and Bertis Downs.Background photo, MichaelLandau.

Quick DialAttorney Discipline (800) 334-6865

ext. 720 (404) 527-8720

Consumer Assistance Program (404) 527-8759Conference Room Reservations (404) 527-8712

Fee Arbitration (404) 527-8750CLE Transcripts (404) 527-8710

Diversity Program (404) 527-8754ETHICS Hotline (800) 682-9806

(404) 527-8741Georgia Bar Foundation/IOLTA (404) 588-2240

Georgia Bar Journal (404) 527-8736Lawyer Assistance Program (800) 327-9631

Lawyers Foundation of Georgia (404) 659-6867Law Practice Management (404) 527-8772

Membership Records (404) 527-8777Meetings Information (404) 527-8790

Pro Bono Project (404) 527-8763Professionalism (404) 225-5040

Sections (404) 527-8774Unauthorized Practice of Law (404) 526-8603

Young Lawyers Division (404) 527-8778

Manuscript SubmissionsThe Georgia Bar Journal welcomes the submission ofunsolicited legal manuscripts on topics of interest to theState Bar of Georgia or written by members of the StateBar of Georgia. Submissions should be 10 to 12 pages,double-spaced (including endnotes) and on letter-sizepaper. Citations should conform to A UNIFORM SYSTEMOF CITATION (17th ed. 2000). Please address unsolicitedarticles to: Marcus David Liner, State Bar of Georgia,Communications Department, 104 Marietta St. NW,Suite 100, Atlanta, Ga., 30303. Authors will be notifiedof the Editorial Board’s decision regarding publication.

The Georgia Bar Journal welcomes the submission ofnews about local and circuit bar association happen-ings, Bar members, law firms and topics of interest toattorneys in Georgia. Please send news releases andother information to: C. Tyler Jones, Director ofCommunications, 104 Marietta St. NW, Suite 100,Atlanta, Georgia 30303; phone: (404) 527-8736;[email protected].

DisabilitiesIf you have a disability which requires printed materials in alternate formats, please contact the ADAcoordinator at (404) 527-8700 or (800) 334-6865.

Headquarters104 Marietta St. NW, Suite 100

Atlanta, GA 30303(800) 334-6865 (404) 527-8700 FAX (404) 527-8717

Visit us on the Internet at www.gabar.org.

South Georgia Office 244 E. Second St. (31794) P.O. Box 1390

Tifton, GA 31793-1390(800) 330-0446 (229) 387-0446

FAX (229) 382-7435

Editorial BoardMarcus David Liner

Editor-in-ChiefScott Fain Bertschi Sarah Howard Lamar

Bill Bost E. Peyton Nunez Donald Paul Boyle Jr. Stephanie Ann Paulk

Erin Reynolds Chance Cynthia B. Smith Charles Madden Cork III Robert R. Stubbs

Lynda Carney Crum Kristin H. WestBridgette Elizabeth Eckerson Pamela Y. White-Colbert

John Michael Gross Scott WrightJennifer Carpenter Kane

AdvisorsTheodore Harris Davis Jr.Rebecca Ann Hoelting

D. Scott MurrayMarisa Anne Pagnattaro

Editors Emeritus Rebecca Ann Hoelting, 02-04 Charles R. Adams III, 89-91Marisa Anne Pagnattaro, 01-02 L. Dale Owens, 87-89

D. Scott Murray, 00-01 Donna G. Barwick, 86-87

William Wall Sapp, 99-00 James C. Gaulden Jr., 85-86

Theodore H. Davis Jr., 97-99 Jerry B. Blackstock, 84-85

L. Brett Lockwood, 95-97 Steven M. Collins, 82-84

Stephanie B. Manis, 93-95 Walter M. Grant, 79-82

William L. Bost Jr., 91-93 Stephen E. Raville, 77-79

Officers of the State Bar of GeorgiaRob Reinhardt President

Robert D. Ingram President-electGerald M. Edenfield Secretary

J. Vincent Cook Treasurer William D. Barwick Immediate Past President

Laurel Payne Landon YLD PresidentDamon E. Elmore YLD President-electAndrew W. Jones YLD Past President

Communications CommitteeS. Kendall Butterworth Chairperson

Aasia Mustakeem Vice-Chairperson

Communications StaffC. Tyler Jones Director

Sarah I. Bartleson Assistant Director Daniel L. Maguire Administrative Assistant

Publisher’s StatementThe 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,Atlanta, Georgia 30303. © State Bar of Georgia 2004. One copy of eachissue is furnished to members as part of their State Bar dues.Subscriptions: $36 to non-members. Single copies: $6. Periodicals postagepaid in Atlanta, Georgia and additional mailing offices. Opinions and con-clusions expressed in articles herein are those of the authors and not nec-essarily those of the Editorial Board, Communications Committee, Officersor Board of Governors of the State Bar of Georgia. Advertising rate cardwill be furnished upon request. Publishing of an advertisement does notimply endorsement of any product or service offered. POSTMASTER: Sendaddress changes to same address.

Mentoring: GeorgiaLawyers Must Meetthe ChallengeBy Rob Reinhardt

On Aug. 19, your

Board of Governors

made an investment

in the improvement of the profes-

sion. It adopted, and agreed to fund

and recommend to the Supreme

Court of Georgia, a mandatory

mentoring program that was devel-

oped by the State Bar’s “Standards

of the Profession” Committee. The

program presents great promise as

a vehicle for focusing attention on

professionalism at the outset of a

lawyer’s career. But the initiative

carries an element of risk; and the

risk troubles me.

The genesis of the program can betraced to 1996 and a concern amongthe leaders of our Bench and Bar asto the deterioration of professionalconduct in the practice of law. At therequest of then-President BenEasterlin, John Marshall undertookto quarterback a talented team oflawyers assembled to engineer aprogram to effectively preserve andpromote professional conductamong members of the Bar. SallyLockwood and the Chief Justice’sCommission on Professionalismhave been an important part of this

initiative from the outset.Professional conduct has manydimensions: civil communication,truthful and full disclosure and fairdealing. The Committee wrestledwith many formidable thresholdissues—one of the most challengingbeing crafting a program that wouldwork. Some lawyers and educatorsadvocated a clinical programinvolving mandatory internships.Others suggested that professionalconduct, like personal character,cannot be taught—you were eitherborn with it or you were not, andour Bar should commit to handlingunprofessional lawyers through ourdisciplinary system.

The result of eight years of workcame before your Board in Atlanta.The plan for implementation hasbeen painstakingly designed. Inbroad brush, the program isanchored in the dual concept of spe-cialized training reinforced by indi-vidual mentoring. During the initial12 months of practice, beginninglawyers will be matched with expe-rienced lawyers while they attend12 hours of CLE programming thatintroduce basic aspects of law prac-tice. Moreover, the training antici-pated by the program is not limitedto mentees. An ambitious educationprogram has also been designed formentors to aid them in counselingprofessionalism in the context of thepractice of law.

We face no risk attributable tothe design of the program. The riskis that we as Georgia lawyers may-fail to realize the promise of the

4 Georgia Bar Journal

“The ‘Standards’ program will ensure

that an inexperiencedlawyer need not

negotiate the briarpatch that challengesprofessional behaviorwithout the counsel

of an experiencedveteran.”

from

theP

resi

dent

By Rob Reinhardt

program by uneven and insuffi-cient commitment.

The “Standards” project has beenfascinating to me from the outset.How do you teach an intangiblelike professional conduct? Thetruth that our “Standards” archi-tects recognized is that professionalconduct is not taught by lecture butby example. Lawyers learn theexpectation of professional conductby facing that expectation frompracticing lawyers. Lawyers learnto practice professional conduct bywatching practicing lawyers exhib-it professional conduct. And it is asituational and anecdotal pilgrim-age. The “Standards” program willensure that an inexperiencedlawyer need not negotiate the briarpatch that challenges professionalbehavior without the counsel of anexperienced veteran.

My challenge to you is to makethe program work. Professionalismis on the problem list of bar associ-ations across the country. Georgiais characteristically in the forefrontof those bar associations that havedetermined to mount an aggressiveresponse. But for the “Standards”program to work, we as Georgialawyers have to fall in behind it.

We all lament the conduct oflawyers observed to conduct thepractice in a manner that brings nohonor to any of us. But I notice thatwe also tend to think unprofession-al conduct is conduct practiced bysomeone else. Experienced lawyerscomplain that young lawyers con-sider effective law practice to be a“scorched earth” approach to liti-gation and reminisce about the col-legiality of the Bar in years goneby. Young lawyers complain thatexperienced lawyers take advan-tage of that experience by unfairdelay, ex parte contact and manip-

ulation of the system. The truth isthe pressures of modern law prac-tice have fogged our focus on pro-fessional conduct. Most lawyerswant to do what is right. But we alloperate under such intense pres-sure that it is hard to find time todevote adequate attention to legalissues—much less professionalismissues. Ask yourself how muchtime you spend discussing profes-sional conduct with lawyers inyour firm or bar association(younger and older). Is it apparentthat professional conduct is impor-tant in your law practice, or do con-temporaries or associates workingwith you have the impression thatyou are out to win at all costs?Would you be comfortable explain-ing your professional tactics toyour parents or your children?

The easiest response to our“Standards” program—and one Ifear too many of us at the Bar willtake—is that the problem does notaffect us and we don’t have time toparticipate in the solution. But ourprofession will be enhanced and allof us will enjoy the reflected bene-fit of a professional bar if weengage and support this program.The groundwork has been done forus, and it has been done well. Butthe problem is endemic and thecure demanding. So our crossroadsat the beginning of 2005 will be todecide we are determined this pro-gram will succeed and to collateral-ize that decision with a commit-ment to insist on professional con-duct from ourselves and all that areadmitted before the Bar. Serve as amentor. Share your experience onhow difficult situations should beresolved. Help lawyers understandas they spin up into the practicethat professional conduct is asimportant as setting up a trust

account or promoting their busi-ness. My prediction is your effortswill ratchet up your professional-ism alert level.

The synergy of all of us march-ing in the same direction will fulfillthe promise of the program. Yourdetermination to make our“Standards” program successfulwill communicate to lawyers enter-ing the profession our commitmentto conduct worthy of a noble pro-fession. By endorsing professional-ism, we preserve for our successorsthe great heritage of Georgialawyers. Without our unstintingsupport, “Standards” could sunsetin three years (the penalty for inef-fective operation built into the pro-posal). That result will diminishthe profession and all of us who areproud of it.

The resolution adopted by theBoard of Governors, as well as theanticipated rule changes, will bepublished in the December issueof the Bar Journal. Following a 30day comment period, the rulechanges will be proposed foradoption by the Court. The reso-lution and plan of implementa-tion also appears on the Bar’sWeb site. I invite your close atten-tion directed through the commu-nication medium of your choice.Your Board of Governors invest-ed in this program with the confi-dence that Georgia lawyerswould greet the challenge withresolve. It endorsed the directioncharted for us by our “Standards”committee; and I share the confi-dence of your board that this pro-gram will inspire us to improvethe profession. I encourage you tokeep professionalism high onyour list of priorities—and I needyour encouragement to keep ithigh on mine.

October 2004 5

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

V isiting the Bar Center,

the home of all

Georgia lawyers,

recently became a lot easier. After

all the unexpected hurdles, the 500-

space Bar Center parking deck is

now available for use.

Although there is still some workto be done on the Spring Streetentrance and exit, Bar members arewelcome to utilize the parking deck,with few exceptions. The majorexception is space availability,because there are more than 35,000members and only 500 availablespaces, the Board of Governors hasoutlined ground rules for its use.

During business hours (6:30 a.m.to 8 p.m.) all Bar members visitingor using the Bar Center or visitingdowntown for other business orsocial purposes may park free ofcharge. The Bar’s receptionists oneither the first or third floor will behappy to validate your ticket.Because there are a limited numberof parking spaces, free parking can-not be provided for lawyers whowork in other downtown buildings.Other than availability, this is theonly exception to free parking.

For after-hours and weekendevent parking, when the deck isopen, members need to show theirState Bar of Georgia membershipcard upon arrival at the deck.Parking is on a first-come, first-served basis. Keep in mind thatthe public will also be parking ona fee basis. Members should callthe Bar to find out if the parkingdeck will be open after hours forspecific events.

It is important to note that Barmembers cannot transfer their park-ing privileges to friends, familymembers or employees. With theexception of Bar members, Bar staff,tenants and layperson committeemembers, all visitors to the parkingdeck must pay upon leaving. Subjectto availability, non-member guestsare offered parking at market rates.

Now that the parking deck iscomplete, I want to remind youabout another exciting memberbenefit that is slated to be avail-able Jan. 1, 2005—GeorgiaCasemaker. For those of you notfamiliar with Casemaker, it is anonline law library that providesBar members with free access tothe legal research materials need-ed to serve your clients. With apowerful combination of stateand federal materials, the StateBar’s Casemaker library puts the


“It is important to

note that Bar

members cannot

transfer their

parking privileges

to friends, family

members or

employees.”

from

theE

xecu

tive

Dir

ecto

r

information you need at yourfingertips. As a State Bar ofGeorgia member, your use ofCasemaker is unlimited, 24hours a day. The cost is includedin your annual dues, so therewill be no other fees.

Like the other state bars, whichmake up the Casemaker Consortium

(Alabama, Colorado, Connecticut,Idaho, Indiana, Maine, Mass-achusetts, Michigan, Mississippi,Nebraska, New Hampshire, NorthCarolina, Ohio, Oregon, RhodeIsland, South Carolina, Texas, Utahand Vermont), the State Bar ofGeorgia seeks to provide memberswith the best tools and advantages

for the successful practice of law. When Casemaker is made

available to members, there willbe a full-time Casemaker experton staff to answer any questionsmembers may have about usingor accessing this unique memberbenefit. This staff member willconduct CLE training seminarson using Casemaker, as well as,upon request, travel to local barsto offer onsite training.

Your thoughts and suggestionsare always welcome. My telephonenumbers are (800) 334-6865 (tollfree), (404) 527-8755 (direct dial),(404) 527-8717 (fax) and (770) 988-8080 (home).

October 2004 7

Georgia Casemaker:An Overview on What Georgia Lawyers Can Expect

Although you’ve heard a lotabout Georgia Casemaker, whichwill be available Jan. 1, 2005, theBoard of Governors thought itwould be a good idea to providesome background and an overviewof what you can expect.

Casemaker, which was launchedby the Ohio State Bar Association in1998, is a unique online legalresearch tool with a powerful searchengine providing access to a combi-nation of state and federal materials.Casemaker includes historic to cur-rent cases, statutes, and regulations.In Ohio, for example, it alsoincludes a comprehensive set of juryinstructions. Review the list of casesto be included in Georgia’s library athttp://www.gabar.org/pdf/Casemaker_Library.pdf.

The Casemaker Consortium repre-sents nearly 350,000 lawyers who arestate bar association members in 19states: Alabama, Colorado, Connect-icut, Georgia, Idaho, Indiana, Maine,

Massachusetts, Mississippi, Neb-raska, New Hampshire, NorthCarolina, Ohio, Oregon, RhodeIsland, South Carolina, Texas, Utahand Vermont. A host of other statesare currently considering member-ship in the Casemaker Consortium.

According to Denny Ramey,executive director of the Ohio StateBar Association, founding memberof the Casemaker Consortium, “TheConsortium is a win-win concept,because each member bar shares itslibrary with all the other memberbars. It levels the playing field forthe 60 to 70 percent of lawyers whoare sole practitioners or who prac-tice in firms of five or fewerlawyers—many of whom cannotafford to subscribe to other onlinelegal research services. Large firmsalso benefit, realizing a cost savingswhen they ask their lawyers to useCasemaker before turning to moreexpensive tools. The goal ofCasemaker is to take care of 90 per-

cent of lawyers’ research needs 90percent of the time. In my opinion,no association—bar or otherwise—has provided members with a bet-ter benefit than Casemaker.”

Online legal research tools arenot new. Several companies—likeWest and Lexis—offer online legalresearch products. The problem isthat those services are expensive,whereas Casemaker can meetmany of our members’ researchrequirements. And where lawyersneed more than what Casemakeroffers, they can start out inCasemaker—at no additionalcharge because it is included intheir bar association member-ship—then move to pay-per-useservices to expand their search.

For additional informationabout Georgia Casemaker, contactState Bar of Georgia ExecutiveDirector Cliff Brashier at (404) 527-8755 or (800) 334-6865 or [email protected].

When Casemaker is made available to mem-

bers, there will be a full-time Casemaker

expert on staff to answer any questions

members may have about using or accessing

this unique member benefit.

The YLD — ServingYoung Lawyers fromAround the StateBy Laurel Payne Landon

W hat a wonder-

fully diverse

state we live in.

I grew up in Ringgold, Ga., located

in the foothills of northwest

Georgia between Dalton and

Chattanooga. I lived there until I

moved to Athens to attend college

and law school.

Athens is such a vibrant place,combining a small-town feel withworld-class culture. I lived inSavannah for two years while clerk-ing. Is there any city more beautifulthan Savannah in the springtime?Augusta is now my home, a city fullof wonderful people and a specialgolf tournament that brings the worldto our home every year.

I have never lived in Atlanta, butI have always considered it myhome as well. When I was young,we would go to Atlanta for a Bravesgame or a shopping weekend.Many of my college and law schoolfriends grew up in Atlanta and havereturned there. I go there often nowfor work and other professionalactivities. When you enter the citylimits, you can feel the energy andhistory of this great city.

The YLD is comprised of lawyersfrom all over the state and beyond.We are here to provide services and

an opportunity for service to younglawyers from Ringgold toBainbridge, from Toccoa toBrunswick, from Atlanta to TwinCity. This year, we are making aconcerted effort to include thoseyoung lawyers outside of Atlanta inYLD committees, business meetingsand other activities. Almost all YLDcommittee meetings will be accessi-ble by conference call so that thosewho cannot attend the meeting inperson can participate without los-ing an entire day of work. Businessmeetings are being held at differentlocations around the state so thatmost young lawyers can easilydrive to the meetings. We are alsoplanning other activities to takeplace outside of metro Atlanta.

In making these efforts, howev-er, we cannot forget that the major-ity of young lawyers in the statelive and practice in metro Atlanta.We must continue to provide qual-ity programs and opportunities forservice to Atlanta’s young lawyers,who comprise a large percentage ofthe active membership of the YLD.

We have all heard of the “twoGeorgias”—Atlanta and everywhereelse. I don’t like that term. We live inone Georgia, and we have great citi-zens and great lawyers all aroundour state. Whether you live andpractice in metro Atlanta or in someother city or small town, the YLD isrelevant to you and your practice.Join a committee and attend a busi-ness meeting and find out how youcan become involved.


“The YLD is com-prised of lawyersfrom all over the

state and beyond.We are here to pro-vide services to andan opportunity for

service to younglawyers fromRinggold to

Bainbridge, fromToccoa to Brunswick,

from Atlanta to Twin City.”

from

theY

LDPr

esid

ent


By David J. Burge Forests have always played a very important role in the history, econo-

my and environment of Georgia. Forestry is and will remain an import

industry 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 LANDGeorgia trespass law has long respected the sanctity of property boundary

lines.1 For example, trespass can occur if any artificial object crosses a boundaryline 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 personalinjury caused by the wayward object, even if that person does not cross the prop-erty boundary himself.3 Trees, however, are naturally occurring objects and areconsidered part of the realty itself.4 As such, trees that fall over property lines aretreated under very different rules of liability.

Georgia law regarding liability for falling trees from privately owned propertywas first articulated in Cornett v. Agee.5 The Cornett court explained that, tradi-tionally, liability for falling trees in rural areas was governed by the common-lawprinciple that a rural landowner is “under no affirmative duty to remedy condi-tions of purely natural origin,” even if the conditions “may be highly dangerous orinconvenient” to adjoining landowners.6 This rule regarding owner liability fornatural conditions on rural land was articulated by the Georgia Supreme Court inRoberts v. Harrison,7 in which a landowner was sued in nuisance for accumulationsof water on his land that were claimed to have emitted “noxious and deleterious

Timber! – Falling TreeLiability in Georgia

gases injurious to the publichealth” of adjacent landowners.The Roberts court held that if thelandowner had not contributed tothe nuisance by his own act, theowner could not be held liable.8Regardless of the ease with whichthe owner could have cured thenuisance, in comparison with theharm the ongoing nuisance caused,the owner was not liable for thenuisance because it arose from nat-ural causes.9 According to theCornett court, this “rule of nonlia-bility for natural conditions” was,historically, a practical necessity inrural areas.10 The court noted thatthe rule was not applicable inurban situations, however, becauseof the heightened danger and con-sequences of such a nonliabilitypolicy in an urban setting.11

Even for trees located in rurallocations, the Cornett court recog-nized a growing trend away fromblanket nonliability since Robertswas decided. Instead, if a rural

landowner has actual notice of ahazardous condition on the land,the landowner can become liablefor damages arising from the con-dition.12 Under current law, a rurallandowner is not required toinspect the land to make sure thatevery tree is safe.13 However, if arural landowner has actual noticethat a particular tree poses a dan-ger to a neighbor or to the public,the owner must take affirmativesteps to remedy that hazard.14

TREES LOCATEDIN AN URBANAREAGeneral Liability ofUrban Landowner

An urban landowner is held to astandard of reasonable care ininspecting trees that could fall overa property line to ensure the safetyof others. This duty is limited totrees having “patent visible decay

and not the normal usual latentmicro-non-visible accumulativedecay.”15 In essence, the landown-er is not burdened with a “duty toconsistently and constantly checkall trees for non-visible rot,”because “the manifestation ofdecay must be visible, apparent,and patent so that one could beaware that high winds might com-bine with visible rot and causedamage.”16 The urban landowneris liable for injuries caused by afalling tree only if the landownerknew or reasonably should haveknown that the tree was diseased,decayed, or in an otherwise dan-gerous condition.17 The only dutyimposed upon an urban landownerwith regard to knowledge of thehealth or condition of trees is thatof a reasonable person. Thelandowner is not charged with theknowledge or understanding of anexpert trained in the inspection,care, and maintenance of trees.18

Two cases illustrate this point.

In Cornett, a tree located in aFulton County residential neigh-borhood fell due to an apparentcombination of high winds and thetree’s visible rot.19 Before the treefell, the owner had been notified ofthe tree’s diseased condition andthat the tree was visibly leaningtoward the neighboring yard.20

The court explained that when atree is in an urban area and fallsinto the neighboring property,there “is no dispute as to thelandowner’s duty of reasonablecare, including inspection to makesure that the tree is safe.”21 Alandowner that knows that a tree isdecayed and may fall and damagethe property of an adjoininglandowner has a duty to eliminatethe danger, even if the tree grew onand became part of the land by nat-ural condition. Because the defen-dant in Cornett had notice of thehazardous condition of the treethat fell, and because the tree waslocated in an urban neighborhood,the defendant had breached hisduty of reasonable care.

Similarly, in Willis v. Maloof,22

the plaintiff was severely injuredwhen struck by a falling tree. Thetree was located on the boundarydividing the land owned by theplaintiff and the defendant in a res-idential area in DeKalb County.23

Because the tree was not solelylocated upon the defendant’s prop-erty, the court first confronted thequestion of who was responsiblefor maintaining the tree. The court

held that adjoining landowners of atree growing on a property bound-ary do not own the tree as tenantsin common, but “each owns in sev-eralty the part thereof which restsupon his side of the line, with aneasement of support from theother.”24 As in the case of a partywall, the adjoining landownershave a joint duty to maintain thetree and take reasonable steps toguard against any hazardous con-dition the tree may pose. Next, thecourt determined whether thedefendant had breached any dutyto maintain the tree. The plaintiff’sexpert, who inspected the fallentree, testified that several visibleconditions on the tree indicated tohim that the tree was diseased andposed a hazard.25 However, thecourt held that the expert’s testimo-ny failed to establish that a non-expert should have reasonablyknown the tree was diseased.26 Thecourt explained that the defendantwas not charged with the knowl-edge of the expert witness withregard to the health of trees.27

Supporting the conclusion that alayperson would not have theexpertise to recognize the diseasednature of the tree was the plaintiff’sown testimony that he did not real-ize before the accident that the treewas dangerous or defective.28

Other witnesses testified that thetree was bearing green leaves at thetime it fell and did not appear to bediseased.29 The plaintiff did notdemonstrate that the defendant

was or should have been awarethat the tree was hazardous, andtherefore the defendant could notbe held liable for the plaintiff’sinjury.

The Willis court did not addresswhether the defendant had animplied easement to cross theproperty line and render the jointlyowned tree safe by the exercise ofself help if the other owner failed toacknowledge their joint duty ofmaintenance. Similarly, a nervousneighbor is not entitled to enteradjoining property to remove anunsafe tree growing near theboundary that threatens to fall overthe property line onto that neigh-bor’s property.30 Although Georgiawill allow a neighbor to trimbranches that actually cross overthe property line,31 a self-helpforay onto the adjoining propertywould likely be trespass. The nerv-ous neighbor’s sole right is to pointout the threatening tree and theassociated potential liability to thetree owner and, perhaps, to anyapplicable property owners associ-ation or municipal authority.

A related question is whether aproperty owner whose tree hasfallen across a property line has theright or duty to enter a neighbor’sproperty to remove the fallen tree.Although cases in other states sug-gest the fallen tree remains theproperty of the original owner withan implied right of retrieval,32

Georgia law has not yet addressedthis issue, and the Willis case sug-gests Georgia courts may be reluc-tant to imply such an easement orlicense due to Georgia’s long-standing respect for the sanctity ofproperty lines.33 Absent an agree-ment between the two neighbors,the right and responsibility to actu-ally remove the fallen tree appearsto stop at the common property


A landowner that knows that a tree is decayed

and may fall and damage the property of an

adjoining landowner has a duty to eliminate

the danger, even if the tree grew on and

became part of the land by natural condition.

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line, with the liability for the cost ofthat removal likely to be resolvedbetween the owners as provided inCornett and its progeny.

Liability ofMunicipalities

Municipalities, like individualurban landowners, are under aduty to inspect and remove dan-gerous trees growing on publicland if the municipality has, orshould have, notice of the dis-eased nature of the tree. In twocases from the 1950s, City ofBainbridge v. Cox34 and CityCouncil of Augusta v. Hammock,35

the Georgia Court of Appealsupheld jury verdicts againstmunicipalities for injuries causedwhen visibly decayed trees grow-ing in the public right of way fellon citizens using adjacent streetsand sidewalks, citing the failureof both municipalities to exercisedue care in inspecting its respec-tive streets.36 The Court ofAppeals most clearly explainedthe theory of such municipal lia-bility in Carter v. Ga. Power Co.37

In Carter, the plaintiff was injuredby a falling tree limb as he walkedalong a Macon city street.38 Theplaintiff sued the city of Maconfor negligence, based on theassertion that the fallen limb hadbeen dead for so long that it haddetached from the tree and wasresting on other limbs in thetree.39 The plaintiff argued thatthe city, pursuant to the duty of amunicipality to maintain the pub-lic roads free from defects, shouldhave discovered the defect anddanger posed by the tree throughan exercise of reasonable care.40

The court explained that thedetermination of the city’s liabilityhinged on whether the municipali-ty had actual notice of the danger

of falling limbs from the tree.41

Relying on Cornett and Willis, thecourt explained that “[j]ust as theowner of a tree has no duty tocheck it constantly for nonvisiblerot, a city has no duty to checklimbs overhanging a public roadfor nonvisible rot.”42 The fact that atree or limb may be leaning oroverhanging in one direction is notalone sufficient as a basis for noticethat the tree or limb is in a danger-ous condition. The limb that fell onthe plaintiff in Carter was actuallydecayed, but because undisputedeyewitness testimony establishedthat the limb appeared normal, thecourt held the city free of liability.43

Liability forUndeveloped orUninhabited Urban Land

The duty of care established inCornett applies to undevelopedland in its natural state that is locat-ed within an urban area such asmetropolitan Atlanta, even if theland is located in an unincorporat-ed section of a metropolitan coun-ty.44 Without expressly so ruling,Georgia courts have also assumedthat the Cornett duty applies tourban land on which the ownerdoes not reside, and have assumedthe duty applies even if the owneris physically unable to exercise rea-sonable care in tree inspection.45

In Wade v. Howard,46 the plain-tiffs’ children were killed when atree fell across a road during athunderstorm.47 The tree waslocated on a parcel of land in unin-corporated DeKalb County ownedby an elderly woman who wasvery ill and had not lived on theproperty for 10 years.48 Due to herpoor physical condition, thelandowner was unable to personal-ly inspect the trees with reasonablecare.49 The landowner had never

received actual notice of a problemwith the tree that fell, and the treeevidenced no signs of disease, sothe landowner was not deemed tohave constructive notice of a haz-ardous condition.50 Consequently,the Wade court relied on the “threeleading cases” of Cornett, Willis andCarter, to hold for the defendantlandowner because the plaintifffailed to prove that the defendantwas, or should have been, on noticeof the hazardous tree.51

The application of Cornett touninhabited and undeveloped landin urban areas is also demonstratedby Wesleyan College v. Weber.52 InWesleyan College, a motorist waskilled when a tree fell onto her carwhile she was driving on a Maconstreet next to land owned by thedefendant, Wesleyan College.53

The college owned a narrow stripof undeveloped land, containing alarge number of trees, locatedacross a highway from the collegepresident’s home.54 The court reit-erated the rule, established byCornett, that a landowner has noduty to check all trees for non-visi-ble rot. However, despite the factthat the land was undeveloped, alandowner does have a duty toinspect trees for the presence of“visible, apparent, and patent”decay.55 Thus, a landowner is pre-sumed to have constructive noticeof what a reasonable inspectionwould reveal as to the condition oftrees on his or her land. The trees inthe general area where the tree fellwere “blighted,” and many were“dead, diseased, dying, or had fall-en,” and the court reasoned that adrive-by inspection of the treeswould reveal to a reasonablelandowner the hazardous condi-tion of this stand of trees.56 Such anobvious hazard would give noticeto the landowner that an individ-


ual inspection of each tree withinthe blighted stand was warranted.Based on this constructive notice ofthe hazard, and the defendant’sfailure to attempt to remedy thedangerous situation, the court heldthat Wesleyan College was liablefor the death of the motorist, eventhough the college had no noticethat this particular tree was dis-eased and unsafe.57

Liability for Injuries toInvitees

The previous cases all addressedsituations in which the falling treecrossed over a property boundaryand struck someone in either anadjoining tract of land or in thepublic right of way. In these cases,the courts focused exclusively onthe actual and constructive knowl-edge of the tree owner and did notconsider the knowledge of the per-son struck by the tree. Georgiacourts use a different analysis if theplaintiff has entered upon theproperty on which the tree is locat-ed and is struck by a tree growingin the interior of the property, onethat considers the knowledge of therisk by both the landowner and theperson struck.

Georgia courts have long heldthat the mere ownership of landwill not cause one party to be liablefor injuries sustained by anotherparty while upon the land.58 Alandowner is not considered to bean insurer of those persons whoenter upon the land, even whenthose persons are invitees.59 Underwell-established Georgia law, alandowner will only be liable toinvitees, or other persons whoenter upon the land, if thelandowner has superior knowl-edge of a hazardous conditionupon the land, while the inviteehas no knowledge of the perilous

condition.60 An invitee that hasknowledge equal to that of thelandowner with regard to the haz-ardous condition may not recoverfrom the landowner if injuredwhile on the land. If an inviteeenters upon land while “as fullyaware of the dangers and defects ofthe premises” as the landowner,the invitee has assumed the risk ofinjury, and the landowner will notbe held liable upon injury to theinvitee.61 Therefore, a landownerhas no obligation to protect an invi-tee from dangers “which areknown to [the invitee] or which areso obvious and apparent [that theinvitee] may be reasonably expect-ed to discover them.”62

The law regarding landowner lia-bility for injuries to invitees causedby falling trees is demonstrated inByrd v. Rivenbark.63 In Byrd, theplaintiff’s decedent was fatallystruck on the head by a tree limblocated on the defendant’s proper-ty.64 The deceased was on the landas a business invitee, specifically forthe purpose of removing the treelimb, which had detached during astorm.65 The court explained thatthe hazardous condition of thebranch was obviously known to thedeceased,66 because he had beeninvited onto the property for theexpress purpose of removing thebranch. Therefore, the defendant’sknowledge regarding the haz-ardous limb was not superior to theknowledge of the deceased, and thedefendant was not liable for the

accident.67 Although the risk wasobvious in Byrd, if there is a disputeabout the safety of a particular inte-rior tree, presumably Georgiacourts will look at the factors citedin Cornett and Willis to determinethe standard of knowledge for bothowners and visitors regardingunsafe interior trees.

The most recent case on fallingtree liability, Klein v. Weaver,68 alsoinvolved injuries suffered by aninvitee who was struck by a dis-eased tree limb that fell from a treelocated within the landowner’sproperty.69 The Klein court upheldsummary judgment for thelandowner, citing an absence of evi-dence in the record that the tree

limb had any outward appearanceof disease or decay.70 The court alsoheld that the fact another limb hadfallen from the same tree two weekspreviously did not constitute noticeof a dangerous condition in theabsence of any evidence that theprior limb also was diseased ordecayed.71 Finally, the court foundthe landowner’s efforts to havelimbs trimmed from the tree thatwere near a power line did notestablish notice of a dangerous con-dition because the landowner wasmotivated by a different concern—fear of a power line accident.72

CONCLUSIONLandowners in a rural area are

subject to a less stringent standardof care than landowners in anurban area. A rural landowner is


Georgia courts have long held that the mere

ownership of land will not cause one party

to be liable for injuries sustained by another

party while upon the land.

not required to inspect the land tomake sure that every tree is safe.When put on notice, however, thata particular tree is dangerous to aneighbor or to the public, a rurallandowner must then take affirma-tive steps to remedy the hazard. Anurban landowner, by contrast,must satisfy a standard of reason-able care in inspecting trees toensure the safety of others.However, liability for urbanlandowners is limited to trees hav-ing “patent visible decay and notthe normal usual latent micro-non-visible accumulative decay.”73

Finally, a landowner is liable toinvitees for injuries from treesgrowing in the interior of the landif the landowner had superiorknowledge to that of the inviteeregarding the hazardous nature ofthose interior trees.

David J. Burge is apartner in the RealEstate Section ofSmith, Gambrell &Russell, LLP, in Atlanta.

He served as chairman of the RealEstate Section of the Atlanta BarAssociation from 1999-2000 andcurrently serves on the executivecommittee of the Real PropertyLaw Section of the State Bar ofGeorgia. Burge earned his B.A.,magna cum laude, from VanderbiltUniversity and received his J.D.,with first honors, from theUniversity of North Carolina. Hewishes to acknowledge the assis-tance of Ryan Stinnett, an associ-ate at Smith, Gambrell & Russell,LLP, in researching this article.

Endnotes1. “The right of enjoyment of private

property being an absolute right ofevery citizen, every act of anotherwhich unlawfully interferes withsuch enjoyment is a tort for whichan action shall lie.” O.C.G.A. § 51-9-1 (2000 & Supp. 2003).

2. See, e.g., Hall v. Browning, 195 Ga.423, 24 S.E.2d 392 (1943) (firing abullet across boundary line consti-tutes trespass); Ledbetter Bros. Inc.v. Holcomb, 108 Ga. App. 282, 132S.E.2d 805 (1963) (a quarry opera-tion that throws rocks, smoke andother debris across property lineliable for trespass); Belt v. WesternUnion Tel. Co., 63 Ga. App. 469, 11S.E.2d 509 (1940) (telephone linecrossing property line without con-sent constitutes trespass).

3. Id. See also Reinertsen v. Porter, 242Ga. 624, 250 S.E.2d 475 (1978)(owner of personalty that inadver-tently lands on the property ofanother has no implied license toretrieve that property without thelandowner’s permission, whereasthe land owner has the right toremove the wayward object with-out fear of liability for conversionas long as it exercises reasonablecare in removing the object).

4. O.C.G.A. § 44-1-2 (1991 & Supp.2003).

5. Cornett v. Agee, 143 Ga. App. 55,237 S.E.2d 522 (1977).

6. Id. at 55, 237 S.E.2d at 523.7. Roberts v. Harrison, 101 Ga. 773, 28

S.E. 995 (1897).8. Id. at 775, 28 S.E. at 996.9. Id.10. Cornett, 143 Ga. App. at 55, 237

S.E.2d at 523.11. Id. at 56, 237 S.E.2d at 523.12. Id.13. Id. at 55, 237 S.E.2d at 523.14. Id. at 56, 237 S.E.2d at 523.15. Id. at 57, 237 S.E.2d at 524.16. Id.17. Id.18. Id. See also infra note 27.19. Id. at 55, 237 S.E.2d at 523.20. Id.21. Id. at 56, 237 S.E.2d at 523.22. Willis v. Maloof, 184 Ga. App. 349,

361 S.E.2d 512 (1987).23. Id. at 349, 361 S.E.2d at 512.24. Id. at 349, 361 S.E.2d at 513.25. Id. at 350, 361 S.E.2d at 513.26. Id. at 350-51, 361 S.E.2d at 513-14.27. Id. at 350-51, 361 S.E.2d at 514.28. Id. at 350, 361 S.E.2d at 513.29. Id. at 351, 361 S.E.2d at 514.30. See DANIEL F. HINKEL, PINDAR’S GA.

REAL ESTATE LAW § 9-21 (6th ed.2004).

31. Id.32. Id.33. See supra note 1.

34. City of Bainbridge v. Cox, 83 Ga.App. 453, 64 S.E.2d 192 (1951).

35. City Council of Augusta v.Hammock, 85 Ga. App. 554, 69S.E.2d 834 (1952).

36. City of Bainbridge, 83 Ga. App. at458, 64 S.E.2d at 195; City Council ofAugusta, 85 Ga. App. at 561, 69S.E.2d at 839.

37. Carter v. Georgia Power Co., 204Ga. App. 77, 418 S.E.2d 379 (1992).

38. Id. at 77, 418 S.E.2d at 379.39. Id. at 77, 418 S.E.2d at 380.40. Id.41. Id. at 77-78, 418 S.E.2d at 380.42. Id. at 78, 418 S.E.2d at 380.43. Id.44. Wade v. Howard, 232 Ga. App. 55,

499 S.E.2d 652 (1998).45. Id.46. Id.47. Id. at 56, 499 S.E.2d at 653.48. Id.49. Id.50. Id.51. Id. at 59, 499 S.E.2d at 655.52. Wesleyan Collge v. Weber, 238 Ga.

App. 90, 517 S.E.2d 813 (1999).53. Id. at 90, 517 S.E.2d at 815.54. Id.55. Id. at 92, 517 S.E.2d at 816.56. Id. at 94, 517 S.E.2d at 817-818.57. Id. at 95, 517 S.E.2d at 818.58. See, e.g., Harris v. Star Servs., Co.,

170 Ga. App. 816, 318 S.E.2d 239(1984); Amear v. Hall, 164 Ga. App.163(2), 296 S.E.2d 611 (1982).

59. Id.60. Id.61. Harris, 170 Ga. App. at 817, 318

S.E.2d at 240.62. Amear, 164 Ga. App. at 169, 296

S.E.2d at 616.63. Byrd v. Rivenbark, 183 Ga. App.

564, 359 S.E.2d 433 (1987).64. Id. at 564, 359 S.E.2d at 434.65. Id.66. Id. at 565, 359 S.E.2d at 434.67. Id. at 566, 359 S.E.2d at 435.68. Klein v. Weaver, 265 Ga. App. 390,

593 S.E.2d 913 (2004).69. Id. at 391, 593 S.E.2d at 914.70. Id. at 392, 593 S.E.2d at 914.71. Id. at 392, 593 S.E.2d at 915.72. Id.73. See also Barnes v. St. Stephen’s

Missionary Baptist Church, 260 Ga.App. 765, 580 S.E.2d 587 (2003)(recent reiteration of Cornett andWade holdings).

October 2004 17


By John K. Larkins Jr.

In Rakestraw v. Lanier,1 decided in 1898, the Georgia Supreme Court complainedabout the law governing contracts made in restraint of trade:

We cannot, within reasonable limits, undertake to reconcile conflicting opinionsin treating of contracts in restraint of trade, nor cite the authorities which bearupon the different constituent elements which render such contracts valid, or thewant of which make them void, for the reason that the first are irreconcilable, andthe latter inharmonious.2

If only they could see us now. Over a century later, Georgia law governingcovenants 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-chang-ing labyrinth from which fewagreements escape.4 Even asophisticated commercial agree-ment, negotiated at arm’s lengthby parties represented by coun-sel, may be deemed by a court tobe “analogous” to an employ-ment contract and thereby sub-jected to the strictest of scrutiny.

But the stage has perhapsbeen set for a modest but impor-tant change. Two recent deci-sions of the Georgia Court ofAppeals have discarded the tra-ditional “type of contract”method of categorizingCovenants for review, relyinginstead on an analysis based onthe relative bargaining power ofthe parties and the existence ofconsideration for the Covenant.This article suggests that the“consideration” prong of thisnew test should be jettisoned,

Considering theConsiderationApproach toClassifying GeorgiaContracts In PartialRestraint of Trade

and that “bargaining power”should be the sole criterion fordetermining which level of scruti-ny a court uses to analyze aCovenant.

THE TRADITIONALCLASSIFICATIONSOF AGREEMENTSCONTAININGCOVENANTS

Under current Georgia law, thethreshold task for a court consider-ing the enforceability of a Covenantis to examine the nature of theagreement containing the Covenant.Based on the type of contract, thecourt then determines whether theCovenant receives strict, mid-levelor low-level judicial scrutiny.5

Traditionally, Covenants ancillary toemployment contracts receive strictscrutiny, those ancillary to profes-sional partnership agreementsreceive mid-level scrutiny, andthose ancillary to the sale of a busi-ness receive lower scrutiny.6

Significant distinctions existamong the levels of scrutiny thatdramatically affect the survival ofthe Covenant at issue. AlthoughCovenants of all types are theoret-ically evaluated under a “rule ofreason,”7 a Covenant subject tostrict review is subject to numer-ous sub-rules defining reasonable-ness, and the violation of any oneof these sub-rules will toll thedeath knell for the Covenant (andpossibly others associated with it).Perhaps most importantly, aCovenant receiving strict reviewcannot be “blue-penciled” andwill fail for even the most minortransgression, whereas a Covenantreceiving low-level review can bejudicially modified to make itenforceable, if necessary.8

Although strict scrutiny is typi-cally and nominally associatedwith employment contracts, as apractical matter it is the default cat-egory; if the contract is not a pro-fessional partnership agreement ora contract for the sale of a business,it will be deemed “analogous” toan employment contract and thussubject to strict scrutiny.9 Indeed,Richard P. Rita Personnel ServicesInternational, Inc. v. Kot10—the casein which the Georgia SupremeCourt adopted the “no blue-pencil”rule on the basis of the “in terroremeffect on employees … and on com-petitors who fear legal complica-tions if they employ a covenan-tor”—involved a franchise agree-ment, not an employment contract.

Consequently, even commercialtransactions between sophisticatedparties bargaining at arm’s lengthhave been deemed to be analogousto employment contracts and havefallen prey to the strict scrutiny rules.For example, in Amstell, Inc. v. BungeCorp.,11 a non-competition covenantcontained within an agreementbetween two corporations regardingthe distribution of a product wasconsidered under strict scrutiny/no-blue-pencil principles, because thecovenant was “ancillary to an inde-pendent contractor manufacturingand distributorship, which is treatedas an employment rather than a salescontract.”12 In some cases, the courthas even engaged in a two-step anal-

ogy to arrive at strict scrutiny, hold-ing that an agreement was like afranchise agreement and thereforelike an employment agreement.13

A GLIMMER OFREFORM

There are indications that theGeorgia Court of Appeals is seekinga new paradigm. Decided in 2001,Swartz Investments, LLC v. VionPharmaceuticals, Inc.14 involved anagreement by Swartz to raise financ-ing for Vion. Vion agreed to a “non-circumvention provision” prohibit-ing it for a period of five years fromcontacting or negotiating withnamed investors regarding aninvestment in Vion or another com-pany without Swartz’s permission.The covenant called for the pay-ment of a commission to Swartz ifinvestments were obtained in viola-tion of the covenant.15

Finding that the provision was acovenant in partial restraint oftrade, the Swartz court proceededto determine the proper category ofscrutiny. After identifying the tra-ditional categories, the court madean extraordinary statement:

Of course, not every contractfalls directly into one of thesethree categories. Nor do webelieve that the type of contractshould automatically determine theapplicable level of scrutiny.16

Examining the purposes under-

October 2004 19

Traditionally, Covenants ancillary to employ-

ment contracts receive strict scrutiny, those

ancillary to professional partnership agree-

ments receive mid-level scrutiny, and those

ancillary to the sale of a business receive

lower scrutiny.

lying the varying levels of scrutiny,the court then found that the analy-sis is governed by the “relative bar-gaining power of the parties” and“whether there is independent con-sideration for the restrictivecovenant itself.”17 The court ruledthat the two corporations hadequal bargaining power (the par-ties were sophisticated corpora-tions and advised by counsel), butthat there was “no considerationfor the covenant at issue,” andtherefore applied strict scrutiny.18

Thus, the absence of independentconsideration for the covenant wassufficient to trigger strict scrutiny,despite the parties’ equal bargain-ing power.19

In 2003, the Court of Appeals fol-lowed the Swartz approach in WestCoast Cambridge, Inc. v. Rice,20 inwhich the court considered a non-competition provision in a convo-luted agreement involving a physi-cian, a corporation and a partner-ship. Citing Swartz, the court noted,“Recently, we found that the levelof scrutiny is not directly tied to thetype of contract under considera-tion.”21 After applying the Swartzbargaining power/considerationanalysis, the court announced thatit was “unpersuaded” that thephysician lacked bargaining powerand concluded that he had received“significant monetary considera-tion” as a passive investor.22 Basedon these findings, the court heldthat the transaction at issue wascomparable to the sale of a businessand applied low-level scrutiny.23

Swartz and West Coast Cambridgeare certainly not unique in their useof consideration and/or bargaining

power as a rationale to justify thelevel of scrutiny applicable to aCovenant.24 Covenants in contractsfor the sale of a business have beendistinguished from those in employ-ment contracts, in part, on thegrounds that the seller of a businessreceives consideration for theCovenant in the form of the goodwill portion of the purchase price,while the terminated employee sup-posedly receives no additional remu-neration for post-termination restric-tions.25 Additionally, Covenants inprofessional partnership agreementshave been scrutinized less closelythan those in employment agree-ments on the basis that each of thepartners in the partnership is recip-rocally bound by the Covenant, thusdemonstrating a common considera-tion flowing to all.26

In White v. Fletcher/Mayo/Associates,Inc.,27 the Georgia Supreme Courtfocused on relative bargaining poweras the primary factor in determiningthe appropriate level of scrutiny foranalyzing covenants. The issue inWhite was how to treat non-competi-tion covenants that were simultane-ously ancillary to both an employ-ment contract and the sale of a busi-ness. The court could not determinewhether the consideration for thecovenants flowed from the profitfrom the sale or from White’s contin-ued employment, so it turned itsattention to the parties’ relative bar-gaining power:

[W]e hold today that where ajudge is asked to determine theenforceability of a noncompeti-tion covenant which the buyerof a business contends wasgiven ancillary to the covenan-

tor’s relinquishment of hisinterest in the business to thebuyer, and not solely in returnfor the covenantor’s continuedemployment, the judge mustdetermine the covenantor’s sta-tus. If it appears that his bar-gaining capacity was not signif-icantly greater than that of amere employee, then thecovenant should be treated likea covenant ancillary to anemployment contract….28

Likewise, in Watson v. WaffleHouse, Inc.,29 which involved anon-competition covenant con-tained in a lease, the GeorgiaSupreme Court identified bargain-ing power as the determining fac-tor in analyzing the covenant. Inruling that the covenant shouldreceive strict scrutiny, the courtposited that the lease arrangementwas most closely analogous to anemployment agreement because ofthe imbalance of bargaining powerbetween the parties.30 The Watsoncourt did not even considerwhether there was independentconsideration for the covenant.

The Supreme Court clearly indi-cated in White and Watson that bar-gaining power is the primary factorin the determination or rationale forthe appropriate level of scrutiny.31

But should it be the sole criterion?

BARGAININGPOWER AS THESOLE DISPOSITIVECRITERION

In Swartz and West CoastCambridge, the Court of Appeals took


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.

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a step in the right direction byeschewing the “type of contract”approach to analyzing Covenants.As evidenced by the SupremeCourt’s focus on bargaining powerin White and Watson, however, per-haps the “consideration” prong ofthe analysis should be abandoned,leaving only an examination of thebalance of bargaining powerbetween the contracting parties asdeterminative of the level of scrutiny.

The idea, expressed in Swartzand adopted in West CoastCambridge, that an analysis of theultimate legality of a covenant inrestraint of trade may depend onthe existence of “independent con-sideration” for the promise has nomooring in the law.32 Only slightconsideration is required to sup-port a valid contract, and aCovenant ancillary to a valid agree-ment is supported by the same con-sideration that necessarily mustexist in the underlying agree-ment.33 As a practical matter,unless separate, “independent”consideration is identified in thecontract itself, it is impossible for acourt to truly parcel out and accu-rately weigh the consideration ofan agreement to find out what por-tion is associated with theCovenant, much less to determinewhether that part is “substantial.”As stated in Rakestraw v. Lanier,“The exact value of considerationthe court ought not, and, in thenature of things cannot undertaketo measure.”34 For example, whoknows if the investment companyin Swartz would have created a dif-ferent financial arrangement, or notdone the deal at all, without theclient’s promise not to circumventtheir efforts? And it is no answer tosay that consideration is presumedfrom the nature of the contract (forexample, in a contract for the sale

of a business), for then the analysisis circular (i.e., consideration, notthe type of contract, is dispositive,but consideration is determined bythe type of contract).

Finally, using the absence ofidentifiable “independent consid-eration” as a criterion for determin-ing the level of scrutiny is poor pol-icy, for it frustrates reasonable com-mercial expectations of parties whoengage in true arm’s-length negoti-ations to arrive at a mutually agree-

able contract.35 This can be seen inSwartz, where two sophisticatedcorporations with equal bargainingpower negotiated for a contract inan investment transaction withenormous financial consequences,only to have a significant part of itdie under a strict scrutiny analysismerely because there was no dis-cernable “independent considera-tion” for the Covenant.

Adopting bargaining power asthe sole criterion for determiningthe level of scrutiny would effect asmall but important reform inGeorgia law. Primarily, where thecontract is in fact the product oftrue bargaining by parties on equalfooting—and thus not an adhesioncontract—the parties’ contractualexpectations would not be frustrat-ed by the unforgiving technicali-ties of strict scrutiny. Under cur-rent Georgia law, if two sophisti-cated parties freely negotiate abusiness agreement containing aCovenant that is subject to strictscrutiny, the Covenant will failutterly if a court finds it to beunreasonable even in one minordetail, probably resulting in a

windfall for one party, perhaps adisaster for the other, and certainlya frustration of their contractualintent.36 Adoption of the bargain-ing power approach would changea largely unpredictable commer-cial environment to one in whichthe parties to a negotiated agree-ment could be assured that if theircontract were found to be unrea-sonable because it tripped one ofGeorgia’s technical rules, or sim-ply because a court considered it

unreasonable in some respect, itcould be judicially modified andthe parties’ general contractualintention enforced.

Under a pure bargaining powerapproach, even some employmentcontracts may be subject to low-level scrutiny. And why not? If apublic company enters into anagreement with its new CEO that isthe product of negotiation, whereboth sides are represented by coun-sel, that contract should not be sub-ject to the same strict scrutinyapplied to the typical adhesionemployment contract.37

There also would be no use forthe mysterious “mid-level” scruti-ny. This concept was the product ofthe “type of contract” approach,where a professional partnershipdid not seem analogous to either anemployment contract or a sale ofbusiness. Thus, its raison d’êtrewould vanish under a method ofanalysis focusing only on bargain-ing power.38 Any characteristicsunique to professionals or partner-ships would simply be accountedfor by the court in its basic “reason-ableness” analysis.


Adopting bargaining power as the sole criterion

for determining the level of scrutiny would effect

a small but important reform in Georgia law.

Determining the level of scruti-ny solely based on bargainingpower is also perfectly consistentwith the policy underlying the“no-blue-pencil” doctrine. Thedoctrine was adopted to intimi-date or punish employers whomight be tempted to fashion oner-ous Covenants, knowing that thefew Covenants that made it tocourt would simply be pareddown and enforced.39 But thisrationale obviously does not applywhere the parties have relativelyequal bargaining power and thusnegotiate the terms of the restric-tion in a commercial agreement.Moreover, even where blue-pen-ciling is allowed, Georgia lawestablishes that the court strictlylimits the covenant to what hasbeen shown by clear and convinc-ing evidence to be necessary,instead of what is merely reason-able, thus imposing a brake on aparty’s overreaching.40

Adopting bargaining power asthe sole criterion for classifyingcovenants would result in moreagreements being analyzed underlow-level scrutiny, but it would notinvolve any disruption in the basicprinciples of current law. Indeed,as shown above, the “bargainingpower” analysis was largely theapproach adopted by the SupremeCourt in White. As the Court ofAppeals has already held inSwartz, the mere type of contractwould no longer be determinativeof the level of scrutiny. The courtscould reasonably adopt a rebut-table presumption that employ-ment contracts are not the productof bargaining, and the oppositepresumption for contracts for thesale of a business and contractsbetween persons entering intobusiness associations. Such rebut-table presumptions would recog-nize that employment contractstypically involve parties of

unequal bargaining power, where-as contracts for the sale of businessand agreements among personsforming a business association areusually made by parties havingrelatively equal bargainingpower.40 Agreements not plainlyfalling into these categories, how-ever, would no longer be “analo-gized” based on a resemblancederived from an analysis of consid-eration or other factors.

Adoption of a bargaining powertest would not mean that partiesare free to craft a Covenantbeyond judicial review—once theappropriate level of scrutiny isdetermined, the customary rulesof “reasonableness,” informed bypublic policy, would apply inassessing the enforceability of theCovenant. Under this model, thenature of the consideration reflect-ed in the agreement would, atbest, merely be evidence of theparties’ bargaining power.

October 2004 23

CONCLUSIONThe recent decisions of the Court

of Appeals in essence go halfwaytowards a small but potentiallymeaningful reform in Georgia’sCovenant law. Determining thelevel of scrutiny under whichCovenants are analyzed by exam-ining only the parties’ bargainingpower would cure some complica-tions and uncertainties in currentlaw, as well as strike an appropriatebalance between the freedom ofparties to freely negotiate their con-tracts and the public policy againstcovenants unreasonably restrain-ing trade.

John K. Larkins Jr. is a partner inthe Atlanta firm of Chilivis, Cochran,Larkins & Bever LLP. He is a graduateof the University of Georgia Schoolof Law (1976), and is the author ofGeorgia Contracts: Law & Litigation,published by Thomson West.

Endnotes1. 104 Ga. 188, 30 S.E. 735 (1898).2. Id. at 192, 30 S.E. at 737.3. See J. Larkins, GEORGIA CONTRACTS:

LAW & LITIGATION, Ch. 8 (ThomsonWest 2002) (hereinafter, GeorgiaContracts).

4. “There is no area of Georgia law ofmore intricate subtlety than thelaw governing covenants not tocompete…. Despite decades ofappellate decisions, covenants notto compete continue to be struckdown with great frequency, andthe rules continue to develop.”Georgia Contracts, supra note 2, at §8-2.

5. White v. Fletcher/Mayo/Assoc.,Inc., 251 Ga. 203, 303 S.E.2d 746(1983); Advance TechnologyConsultants, Inc. v. Roadtrac, LLC,250 Ga. App. 317, 551 S.E.2d 735(2001).

6. For a general discussion of the cat-egories, see, e.g., Habif, Arogeti &Wynne, P.C. v. Baggett, 231 Ga.App. 289, 498 S.E.2d 346 (1998);Georgia Contracts, supra note 2, at §8.3.

7. See, e.g., Durham v. Stand-By Labor

of Ga., Inc., 230 Ga. 558, 198 S.E.2d145 (1973).

8. Whether a covenant under mid-level scrutiny can be blue-penciledis undecided. Habif, Arogeti &Wynne, P.C., 231 Ga. App. at 291,498 S.E.2d at 350; but see PhysicianSpecialists in Anesthesia, P.C. v.MacNeill, 246 Ga. App. 398, 539S.E.2d 216 (2000) (strikingcovenant subject to mid-levelscrutiny without addressing bluepencil issue). There seems to be atendency to conflate the level ofscrutiny with the blue pencil rules.See Hicks v. Doors By Mike, Inc.,260 Ga. App. 407, 579 S.E.2d 833(2003) (quoting blue pencil ruleduring scrutiny phase of review).

9. See generally Jenkins v. JenkinsIrrigation, Inc., 244 Ga. 95, 259S.E.2d 47 (1979).

10. 229 Ga. 314, 317, 191 S.E.2d 79, 81(1972).

11. 213 Ga. App. 115, 443 S.E.2d 706(1994); see also AdvanceTechnology Consultants, Inc. v.Roadtrac, LLC, 250 Ga. App. 317,551 S.E.2d 735 (2001) (agreementbetween manufacturer and distrib-utor); Northside Hospital, Inc. v.McCord, 245 Ga. App. 245, 537S.E.2d 697 (2000) (covenant in sub-lease); PCS Jt. Venture Ltd. v.Davis, 219 Ga. App. 519, 465 S.E.2d713 (1995) (exclusive distributoragreement between fertilizer man-ufacturer and customer).

12. Amstell, 213 Ga. App. at 116, 443S.E.2d at 707.

13. Watson v. Waffle House, Inc., 253Ga. 671, 324 S.E.2d 175 (1985);Owens v. RMA Sales, Inc., 183 Ga.App. 340, 358 S.E.2d 897 (1987).

14. 252 Ga. App. 365, 556 S.E.2d 460(2001).

15. Id. at 366, 556 S.E.2d at 461.16. Id. at 369, 556 S.E.2d at 463

(emphasis added). 17. Id. The Swartz court cited W.R.

Grace & Co. v. Mouyal, 262 Ga. 484,422 S.E.2d 529 (1992), for itsreliance on the consideration fac-tor. An examination of W.R. Gracereveals, however, that the SupremeCourt merely quoted Rakestraw v.Lanier, 104 Ga. 188, 30 S.E. 735(1898), for the proposition that avalid covenant must be supportedby consideration, not that thecovenant had to be supported byindependent consideration.

18. The Court of Appeals’ referencehere and in other places to no con-

sideration would seem to be a mis-take, since the covenant wouldhave been entirely unenforceable ifit was not supported by any con-sideration. Evidently, what thecourt was referring to was theabsence of independent considera-tion for the covenant.

19. See also Herndon v. Waller, 241 Ga.App. 494, 525 S.E.2d 159 (1999);Northside Hosp. Inc. v. McCord,245 Ga. App. 245, 537 S.E.2d 697(2000).

20. 262 Ga. App. 106, 584 S.E.2d 696(2003).

21. Id. at 108, 584 S.E.2d at 698 (citingSwartz, 252 Ga. App. at 368-69, 556S.E.2d at 463).

22. West Coast Cambridge, Inc., 262 Ga.App. at 109-10, 584 S.E.2d at 699.Note that the term “comparable” isindicative of the “analogy”methodology.

23. Id. at 110, 584 S.E.2d at 699.24. Rash v. Toccoa Clinic Med. Ass’n,

253 Ga. 322, 320 S.E.2d 170 (1984);White v. Fletcher/Mayo/Assoc.,Inc., 251 Ga. 203, 303 S.E.2d 746(1983). Note, however, that Whitewent on to hold that bargainingpower was dispositive.

25. See, e.g., Rakestraw v. Lanier, 104Ga. 188, 30 S.E. 735 (1898). Theeffect on the person restrainedappears to be the primary “publicpolicy” concern.

26. Rash v. Toccoa Clinic Med. Ass’n, 253Ga. at 325, 320 S.E.2d at 173.

27. 251 Ga. 203, 303 S.E.2d 746 (1983).28. Id. at 208, 303 S.E.2d at 751; but cf.

Lyle v, Memar, 259 Ga. 209, 378S.E.2d 465 (1989) (possibly citingdifferent rule, but not overrulingor citing White).

29. 253 Ga. 671, 324 S.E.2d 175 (1985).30. Id. at 672, 324 S.E.2d at 177 (“The

rationale behind the distinction inanalyzing covenants not to com-pete is that a contract of employ-ment inherently involves parties ofunequal bargaining power to theextent that the result is often a con-tract of adhesion. On the otherhand, a contract for the sale of abusiness interest is far more likelyto have been entered into by par-ties on equal footing.”).

31. See also Johnstone v. Tom’sAmusement Co., 228 Ga. App. 296,491 S.E.2d 394 (1997) (“The focusin such cases is on the relative bar-gaining power of the parties.”);Kem Mfg. Corp. v. Sant, 182 Ga.App. 135, 355 S.E.2d 437 (1987)


(“In order to classify an agreementcontaining a non-competitioncovenant, we consider certain fac-tors to be determinative. Of thesefactors, we give primary impor-tance to the relative bargainingpower of the parties.”).

32. See S. Harbour, “Restrictions onPost-Employment Competition byan Executive Under Georgia Law,”54 Mercer L. Rev. 1133, 1176 (2003).This article severely criticizesSwartz, Northside Hospital, andHerndon v. Waller: “In these threecases, the court could not havemeant that the noncompetecovenant was not supported byconsideration. Lack of considera-tion means the covenant is notenforceable at all, not that it is sub-ject to a higher level of scrutiny.”As indicated, supra note 18, the “noconsideration” language in Swartzin fact seems to refer to theabsence of separate considerationfor the covenant.

33. See, e.g., Mike Bajalia, Inc. v. Pike,226 Ga. 131, 172 S.E.2d 676 (1970).Indeed, the contention that a validcovenant must be supported byindependent consideration was

expressly rejected in Rider v. OrkinExterminating Co., 224 Ga. 145, 160S.E.2d 381 (1968).

34. Rakestraw v. Lanier, 104 Ga. 188,196, 30 S.E. 735, 739 (1898).

35. Arguably, the concept of consider-ation underlying Swartz and simi-lar cases is flawed, for it seems tocontemplate the discarded “injuryor benefit” formula. In 1981,Georgia adopted the “bargain”theory of consideration. O.C.G.A.§§ 13-3-42; 13-3-43; see also GeorgiaContracts, supra note 2, at § 4-1.

36. This is true notwithstanding thatthe parties also agreed on a sever-ability clause. See, e.g., McNease v.Nat’l Motor Club of Am., Inc., 238Ga. 53, 231 S.E.2d 58 (1976).

37. See Harbour, supra note 33 (sug-gesting that such agreements couldbe subject to mid-level scrutiny).

38. “Middle scrutiny,” as a term, origi-nated with the Court of Appeals inHabif, Arogeti & Wynn as an explana-tion for the Supreme Court’s hold-ing in Rash. It is now a settled, ifsomewhat vague, principle in Courtof Appeals precedent, however.

39. Richard P. Rita Pers. Svcs. Int’l, Inc.v. Kot, 229 Ga. 314, 317, 191 S.E.2d

79, 81 (1972).40. Jenkins v. Jenkins Irrigation, Inc.,

244 Ga. 95, 259 S.E.2d 47 (1979).41. Such a presumption may be

important because so manyCovenants are the subject of TROproceedings. Another practicalconsideration is the fact that manycontracts will be drafted to includestatements regarding bargainingpower. Of course, under the bar-gaining power/consideration test,contracts may contain recitationsconcerning independent consider-ation as well. In either case, therule seems to be that such recita-tions are not necessarily disposi-tive. See Griffin v. Vandegriff, 205Ga. 288, 53 S.E.2d 345 (1949)(recitals must be supported by evi-dence); ALW Mktg. Corp. v. Hill,205 Ga. App. 194, 422 S.E.2d 9(1991) (recital that covenant is rea-sonable not binding); but see Rashv. Toccoa Clinic Med. Ass’n, 253Ga. 322, 320 S.E.2d 170 (1984) (not-ing that parties agreed covenantwas reasonable and its breachwould cause harm).

October 2004 25

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In 2003, the Georgia General

Assembly substantially revised

the Georgia class action statute

for the first time since its enactment in

1966.1 As a result of that amendment,

O.C.G.A. § 9-11-23, which applies to

all Georgia class actions filed on or

after July 1, 2003, is now nearly iden-

tical to the federal class action statute,

Fed. R. Civ. P. 23 (2004).2

By its amendment of the statute,the Georgia General Assemblyresolved an important issue con-cerning the scope of Georgia classactions, and opened the door to thepossibility of national class actionlawsuits being filed in Georgiastate courts. The amendment, aswell as other Georgia law, howev-er, contains significant constraintsthat may limit the class actions thatare actually brought in Georgiastate courts. Moreover, while theamendment to the statute may leadto greater judicial efficiency, over-sight and predictability, it may also

incorporate many of the same diffi-culties litigants currently face inthe federal courts. Thus, while therevision of O.C.G.A. § 9-11-23 con-stitutes a significant change to theGeorgia class action landscape, theultimate effects and results remainto be seen.

The CuriousDevelopment of thePre-2003 Georgia ClassAction Statute

Until its recent amendmentin 2003, the Georgia class

action statute was based,in large part, on the

federal class actionstatute in effectbetween 1938

and 1966.Under thatfederal class

a c t i o nstatute, as

a thresholdmatter, a

class actionhad to involve aclass of personstoo numerous to

make it practica-ble to bring them all

before the court.3Assuming such “numerosity,” the1938 federal class action rule recog-nized three types of class actionsdepending upon the “abstractnature of the rights involved:”

(1) “true” class actions involvingjo int/common/undivided


The 2003 Amendment to theGeorgia Class Action Statute: A New Day for Georgia ClassActions?By Corliss Lawson and Paul Kim

GBJ feature

rights or secondary rights wherethe owner of a primary rightrefused to enforce that right; (2) “hybrid” class actions involv-ing “several” rights relating tospecific property, and (3) “spurious” class actionsinvolving “several” rights butcommon question(s) and com-mon remed(ies).4

As “spurious” class actions donot involve joint rights or rightsrelating to a specific property, theformer Georgia class action statutepresumed that potential membersof a “spurious” class lacked any“jural relationship” with oneanother, thereby requiring that aperson intervene or “opt-in” to aclass action and become an actualparty in order for that person to bebound.5 Thus, for “spurious” classactions, the judgment would be“conclusive only upon the appear-ing parties.”6

Because of the limited scope andeffect of “spurious” class actions,the 1938 federal class action statutewas frequently criticized for failingto achieve the hoped-for efficiencygoals of the class action form.Further, an unexpected result ofthe “spurious” class action was thecreation of a “one-way” systemthat permitted absent members of aplaintiff class to enter an actionafter a determination of liability iffavorable, yet remain outside theaction if the determination wasadverse.7 As a result of these andother criticisms, Congress amend-ed Fed. R. Civ. P. 23 in 1966 toexpressly permit class actionswhere “common questions of lawor fact predominate.”8 Moreover,through the creation of a notice andopt-out procedure, the 1966 federalrule made clear that absent classmembers who failed to affirmative-ly act upon receiving sufficient and

adequate notice would be consid-ered part of the class and bound bythe resolution of that action. In1998, the federal class action statutewas further amended to providediscretionary interlocutory appealsshortly after a trial court’s certifica-tion order.9

During the same year (1966) thatCongress revised the federal classaction statute, the Georgia GeneralAssembly enacted the GeorgiaCivil Practice Act and adoptedmuch of the Federal Rules of CivilProcedure as they existed at thetime.10 Notably, however, theGeneral Assembly did not adoptthe 1966 version of the federal classaction statute. Instead, the GeorgiaGeneral Assembly chose both: (a)to reach back in time and adopt thefederal class action statute that hadbeen in effect between 1938 and1966; and (b) to exclude “spurious”class actions altogether.

As one commentator opined, theGeorgia General Assembly, appar-ently “desiring to limit classactions” in Georgia, adopted a ver-sion of the 1938 federal class actionstatute which “excis[ed] the . . .most commonly used class fromthe statute, the class based on‘common questions of law o[r]fact.’”11 In so doing, however, theGeorgia General Assembly openedthe door to many of the same prob-lems with which the federal courtshad previously struggled between1938 and 1966.

In 1972, the Georgia SupremeCourt in Georgia Investment Co. v.Norman12 corrected one of the“oversights” of the Georgia classaction statute by holding that thestatute included class actionsinvolving common questions oflaw or fact, notwithstanding theapparent absence of “spurious”class actions in the statutory text.

Despite the resolution of thisissue, however, the Norman deci-sion left open the question ofwhether this new type of classaction under Georgia law consti-tuted a “spurious” class action,thereby requiring a party to inter-vene in order to be bound, or con-stituted the more modern “com-mon question of law or fact” classaction which, assuming properand sufficient notice, could bindabsent class members if they failedto act upon receipt of that notice.

Subsequent Georgia cases failedto clearly answer this importantquestion. On the one hand, somelower Georgia courts construedthe Norman decision as creating aclass action, analogous to a Fed. R.Civ. P. 23 action, that was bindingon all class members withoutrequiring them to formally inter-vene.13 On the other hand, a num-ber of Georgia appellate courts,including the Georgia SupremeCourt, suggested that the Normandecision created a “spurious” classaction, thereby requiring a party tointervene in order to be bound byany judgment.14

The Amendment tothe Georgia ClassAction Statute and its Implications

Through its adoption of thetext of the federal class actionstatute of 2003, the new Georgiaclass action statute definitivelyresolved the issue of the natureand the scope of class actionsunder Georgia law. In the newGeorgia statute, both the modern“common question of law or fact”class action and the notice and“opt-out” procedure are express-ly adopted, thereby implicitlyrejecting the “spurious” class

October 2004 27

action and its attendant limita-tions. Thus, the new Georgiastatute has clarified that, wheresufficient and proper notice hasbeen provided, all absent classmembers may be bound upon cer-tification of the class unless theytimely opt-out.

At first blush, this clarification ofthe Georgia class action statuteappears to permit the filing ofnationwide class actions in Georgiastate courts.15 Moreover, given theabsence of any minimum jurisdic-tional amount requirement toassert claims in Georgia’s State andSuperior courts, plaintiffs mayview those courts as highly attrac-tive venues in which to assert theirclass action claims. The possibilityof such actions, however, may betempered by several factors. First,unlike the prior Georgia classaction statute, the new Georgiastatute expressly requires a court toconsider the “superiority” of theforum and the “desirability orundesirability of concentrating thelitigation of the claims in the partic-ular forum.”16 As a result, it is like-ly a Georgia court will turn a deafear to the argument, previouslyasserted under the prior Georgiastatute, that it should consider onlythe efficiency of a class action ver-sus individual actions, rather thanthe efficiency of litigation inGeorgia versus other fora.17

Furthermore, the GeorgiaGeneral Assembly has expresslyprohibited the use of the class

action procedure for certain causesof action. O.C.G.A. § 7-3-29(e) pro-hibits class actions against a “dulylicensed lender” for alleged viola-tions of the Georgia Industrial LoanAct; O.C.G.A. § 7-4-21 prohibitsclass actions for alleged violationsof loans secured by interests in realestate; O.C.G.A. § 10-1-36.1 pro-hibits class actions for alleged viola-tions of loans or contracts securedby interests in motor vehicles; andO.C.G.A. § 10-1-255 prohibits classactions for violations of the BelowCost Sales Act. These exclusionsmay make Georgia a potentiallyless palatable venue than otherstates as well as set a “precedent”for further statutory exclusions.

In addition to its potential effectson nationwide class actions beingfiled in Georgia state courts, theamendment may also have salu-tary effects in increasing judicialefficiency, consistency and pre-dictability. With the statuteexpressly providing that a partymay now seek immediate (albeitdiscretionary) interlocutory appealof a class certification decision, aparty has a greater opportunity tochallenge a trial court’s decision tocertify a class action prior to thetaking of extensive discovery andtrial. This right to challenge a classcertification decision may alsoresult in greater judicial oversightof class certification decisions.

Additionally, while Georgiacourts after Norman have histori-cally looked to the federal courts’

interpretation of Fed. R. Civ. P. 23for guidance in interpretingGeorgia’s class action rule, follow-ing the amendment of the Georgiastatute, both parties and courtsmay be more certain in their appli-cation of federal authority, whichmay result in increased predictabil-ity and certainty on various issues.Notably, however, this increasedreliance on federal case law mayalso result in incorporating intoGeorgia law some of the same diffi-culties that currently plague feder-al class action jurisprudence,including, for example, thearguably disparate results of feder-al trial courts in determiningwhether common issues predomi-nate over individual ones.

Finally, in addition to the afore-mentioned effects, the amendmentof the Georgia class action statutemay also be of significance even inthe event of ultimate passage of thefederal Class Action Fairness Act.Under the proposed act, federalcourts would be granted originaljurisdiction over class actionswhere, among other things, thematter in controversy exceeds $5million and any member of theplaintiff class is a citizen of a statedifferent from any defendant.18

Although the act failed to pass inCongress this year, its enactmentwould greatly hinder any nation-wide, multi-state class action frombeing brought in any state court,including Georgia state courts. Tothe extent that a class action maystill be asserted under the newGeorgia class action statute, how-ever, the increase in the scope ofcovered absent plaintiffs under thenew statute may actually prove tobe beneficial to defendants byallowing them to resolve issues ona broad scale in a single class actionbefore a Georgia state court.


In addition to its potential effects on nation-

wide class actions being filed in Georgia state

courts, the amendment may also have salu-

tary effects in increasing judicial efficiency,

consistency and predictability.

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ConclusionIn analyzing the pre-2003

Georgia class action statute and itsaccompanying case law, one com-mentator for this Journal noted that,as a result of its tortured legislativeand judicial history, the pre-2003Georgia class action rule hadbecome “so confused and uncer-tain . . . [that] Georgians have notbeen able to realize the potential ofthe [Georgia] class actiondevice.”19 With its recent amend-ment, the Georgia GeneralAssembly has substantially clari-fied the nature of the Georgia classaction statute and potentiallyexpanded its reach. It remains to beseen whether and to what extent itspotential may be realized.

Corliss Lawson is thepartner-in-charge ofthe Atlanta office ofLord, Bissell & BrookLLP. She is a general

litigator with expertise in com-plex insurance coverage litiga-tion, environmental liability,premises liability, products liabili-ty, construction/design defect,credit fraud, Title VII and generalcontracts. Lawson received herJ.D. from Vanderbilt UniversitySchool of Law.

Paul Kim representspublicly traded and pri-vately held businessesthroughout the UnitedStates and internation-

ally in trial and arbitrations con-cerning complex business litigationmatters. Kim has representedclients in matters relating to merg-ers and acquisitions, securities,banking, financial products,finance transactions, joint ventures,cross-border transactions, insur-ance and reinsurance and intellec-tual property. He earned his bache-

lor’s degree, magna cum laude,from Yale University in 1991, andhis J.D. from New York UniversitySchool of Law in 1995.

Endnotes1. The Georgia class action statute in

effect between 1996 and June 30,2003, O.C.G.A. § 9-11-23 (1966),states as follows:(a) Representation. If persons con-stituting a class are so numerous asto make it impracticable to bringthem all before the court, such ofthem, one or more, as will fairlyensure the adequate representationof all may, on behalf of all, bring ordefend an action when the charac-ter of the right sought to beenforced for or against the class is: (1) Joint, or common, or secondaryin the sense that the owner of aprimary right refuses to enforcethat right and a member of theclass thereby becomes entitled toenforce it; or (2) Several, and the object of theaction is the adjudication of claimswhich do or may affect specificproperty involved in the action.(b) Secondary action by sharehold-ers. In an action brought to enforcea secondary right on the part ofone or more shareholders in anassociation, incorporated or unin-corporated, because the associationrefuses to enforce rights whichmay properly be asserted by it, thecomplaint shall be verified by oathand shall aver that the plaintiffwas a shareholder at the time ofthe transaction of which he or shecomplains or that his or her sharethereafter devolved on him or herby operation of law. The complaintshall also set forth with particulari-ty the efforts of the plaintiff tosecure from the managing direc-tors or trustees such actions as theplaintiff desires and the reasons forhis or her failure to obtain suchaction or the reasons why irrepara-ble injury to the association, incor-porated or unincorporated, wouldresult by waiting for 90 days fromthe date of the demand upon themanaging directors or trustees.This Code section is cumulative ofCode Section 14-2-831. (c) Dismissal or compromise. Aclass action shall not be dismissed

or compromised without theapproval of the court. If the rightsought to be enforced is onedefined in paragraph (1) of subsec-tion (a) of this Code section, noticeof the proposed dismissal or com-promise shall be given to all mem-bers of the class in such manner asthe court directs. If the right is onedefined in paragraph (2) of subsec-tion (a) of this Code section, noticeshall be given only if the courtrequires it.The Georgia class action statuteeffective July 1, 2003, O.C.G.A. § 9-11-23 (2003), states as follows:(a) One or more members of a classmay sue or be sued as representa-tive parties on behalf of all only if:(1) The class is so numerous thatjoinder of all members is impracti-cable; (2) There are questions oflaw or fact common to the class;(3) The claims or defenses of therepresentative parties are typical ofthe claims or defenses of the class;and (4) The representative partieswill fairly and adequately protectthe interests of the class.(b) An action may be maintainedas a class action if the prerequisitesof subsection (a) of this Code sec-tion are satisfied, and, in addition:(1) The prosecution of separateactions by or against individualmembers of the class would createa risk of: (A) Inconsistent or vary-ing adjudications with respect toindividual members of the classwhich would establish incompati-ble standards of conduct for theparty opposing the class; or(B) Adjudications with respect toindividual members of the classwhich would as a practical matterbe dispositive of the interests ofthe other members not parties tothe adjudications or substantiallyimpair or impede their ability toprotect their interests;(2) The party opposing the classhas acted or refused to act ongrounds generally applicable tothe class, thereby making appro-priate final injunctive relief or cor-responding declaratory relief withrespect to the class as a whole; or(3) The court finds that the ques-tions of law or fact common to themembers of the class predominateover any questions affecting onlyindividual members, and that a


class action is superior to otheravailable methods for the fair andefficient adjudication of the contro-versy. The matters pertinent to thefindings include: (A) The interestof members of the class in individ-ually controlling the prosecution ordefense of separate actions; (B) Theextent and nature of any litigationconcerning the controversy alreadycommenced by or against mem-bers of the class; (C) The desirabili-ty or undesirability of concentrat-ing the litigation of the claims inthe particular forum; and (D) Thedifficulties likely to be encounteredin the management of a classaction.(c)(1) As soon as practicable afterthe commencement of an actionbrought as a class action, the courtshall determine by order whetherit is to be so maintained. An orderunder this subsection may be con-ditional, and may be altered oramended before the decision onthe merits. (2) In any class actionmaintained under paragraph (3) ofsubsection (b) of this Code section,the court shall direct to the mem-bers of the class the best noticepracticable under the circum-stances, including individualnotice to all members who can beidentified through reasonableeffort. The notice shall advise eachmember that: (A) The court willexclude the member from the classif the member so requests by aspecified date; (B) The judgment,whether favorable or not, willinclude all members who do notrequest exclusion; and (C) Anymember who does not requestexclusion may, if the memberdesires, enter an appearancethrough counsel. (3) The judgmentin an action maintained as a classaction under paragraph (1) or (2)of subsection (b) of this Code sec-tion, whether or not favorable tothe class, shall include anddescribe those whom the courtfinds to be members of the class.The judgment in an action main-tained as a class action under para-graph (3) of subsection (b) of thisCode section, whether or notfavorable to the class, shall includeand specify or describe those towhom the notice provided in para-graph (2) of subsection (b) of this

Code section was directed, andwho have not requested exclusion,and whom the court finds to bemembers of the class. (4) Whenappropriate: (A) An action may bebrought or maintained as a classaction with respect to particularissues; or (B) A class may be divid-ed into subclasses and each sub-class treated as a class, and theprovisions of this rule shall then beconstrued and applied accordingly. (d) In the conduct of actions towhich this rule applies, the courtmay make appropriate orders: (1)Determining the course of proceed-ings or prescribing measures toprevent undue repetition or com-plication in the presentation of evi-dence or argument; (2) Requiring,for the protection of the membersof the class or otherwise for the fairconduct of the action, that notice begiven in such manner as the courtmay direct to some or all of themembers of any step in the action,or of the proposed extent of thejudgment, or of the opportunity ofmembers to signify whether theyconsider the representation fair andadequate, to intervene and presentclaims or defenses, or otherwise tocome into the action; (3) Imposingconditions on the representativeparties or on intervenors; and (4)Requiring that the pleadings beamended to eliminate therefromallegations as to representation ofabsent persons, and that the actionproceed accordingly. The ordersmay be combined with otherorders, and may be altered oramended by the court as may bedesirable from time to time. (e) A class action shall not be dis-missed or compromised withoutthe approval of the court, andnotice of the proposed dismissal orcompromise shall be given to allmembers of the class in such man-ner as the court directs.(f) The appropriate appellate courtmay in its discretion permit anappeal from an order of a trialcourt granting or denying classaction certification under this Codesection if application is made to itwithin ten days after entry of theorder. An appeal does not stay pro-ceedings in the trial court unlessthe trial judge or the appellatecourt so orders.

2. As of its effective date of July 1,2003, the new O.C.G.A. § 9-11-23was practically identical to theFed. R. Civ. P. 23 then in existence.Effective December 1, 2003, Fed. R.Civ. P. 23 was amended byCongress to require, among otherthings, certification “at an earlypracticable time,” rather than “assoon as practicable,” and clearerguidelines for what a judge mustinclude in a certification order. Thenew federal statute left unchangedthe standards by which a court isto make its determination of classcertification or the basic procedurefor notice to absent class members.Given this article’s focus on thosefactors as well as the GeorgiaGeneral Assembly’s non-adoptionof the recent federal changes, thisarticle does not address in furtherdetail the December 2003 amend-ment to the federal class actionstatute.

3. Fed. R. Civ. P. 23 (1938).4. Id.; see also, Advisory Committee

Notes to the 1966 Amendment ofFed. R. Civ. P. 23.

5. Herring v. Ferrell, 233 Ga. 1, 4-5,209 S.E.2d 599, 601 (Ga. 1974)(Hall, J. dissenting) (quoting 3B W.MOORE, FEDERAL PRACTICE §§23.10, 23.601 (2d ed.)).

6. Benjamin Kaplan, ContinuingWork of the Civil Committee: 1966Amendments of the Federal Rulesof Civil Procedure, 81 Harvard L.Rev. 356, 378 (1967).

7. Id. at 385.8. Fed. R. Civ. P. 23 (1966).9. Fed. R. Civ. P. 23 (1998).10. 1 GEORGIA PROCEDURE COURT

SYSTEM AND TYPES OFACTION, § 6-1 (2004).

11. Id.12. 229 Ga. 160, 190 S.E.2d 48 (1972). In

Norman, the court acknowledgedthat the rights in question were: (a)not joint because each depended onseparate contracts with the defen-dants; (b) not derivative as the par-ties themselves directly owned therights, not others who refused toenforce them; and (c) not several,but relating to or affecting specificproperty. Despite having apparent-ly ruled out all of the statutorilyspecified bases for class certifica-tion under O.C.G.A. § 9-11-23(1966), the Norman court turned toan interpretation of the word “com-

October 2004 31

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mon” which was set forth in thedefinition of a “true” class action.While it was generally accepted infederal jurisprudence that the defi-nition of “common” rights in the1938 Fed. R. Civ. P. 23 referred torights that were undivided, asopposed to individual, the GeorgiaSupreme Court in Normanabstracted the word “common”from its text and provided it withnew meaning: according to theNorman court, class certificationfor “common” rights may beappropriate where there exist“common” questions of law or factand common relief is sought. 229Ga. at 161, 190 S.E.2d at 50.

13. See, e.g., Ford Motor Credit Co. v.London, 175 Ga. App. 33, 36, 332S.E.2d 345, 347 (Ga. App. 1985).

14. See, e.g., Tanner v. Brasher, 254 Ga.41, 45, fn. 4, 326 S.E.2d 218, 221(Ga.1985) (noting that subsequent rul-ings by the Georgia courts had

“clouded the issue by discussing apossible requirement that classmembers intervene in class suits incontravention of the opt-out proce-dure provided in [Rule 23](b)(3)cases.”); Sta-Power Industries v.Avant, 134 Ga. App. 952, 959, 216S.E.2d 897, 959 (Ga. App. 1975)(permitting plaintiffs to interveneafter imposition of default judg-ment against defendant); Herringv. Ferrell, 233 Ga. 1, 4-5, 209 S.E.2d599, 601 (Ga. 1974) (Hall, J. dissent-ing); See, also, Jeffrey G. Casurellaand John A. Bevis, Class ActionLaw in Georgia: Emerging Trendsin Litigation, Certification andSettlement, 49 Mercer L. Rev., 39,54-58 (Fall 1997) (noting that “thereis an argument that Georgia’s ruleson class actions, unlike their feder-al counterparts, do not allowabsent members to be bound bysettlements about which theyknow nothing.”).

15. Cf., Cheminova America Corp. v.Corker, 779 So.2d 1175 (Al. 2000)(applying practically identicalAlabama state class action statuteto affirm certification of nation-wide class asserting claims ofdefective skin care productagainst, among others, Spain-based manufacturer and Floridabased distributor).

16. O.C.G.A. § 9-11-23(b)(3)(C) (2003).17. See, e.g., McGarry v. Cingular

Wireless, LLC, 2004 WL 574864(Ga. App., Mar. 24, 2004).

18. See, S. Res. 2062, 108th Cong.(2004).

19. Dean S. Daskal and S. RossMansbach, Class Struggle: TheTroubled History of the ClassAction in Georgia, Ga. Bar Journal,34, 38 (April 1998).


GBJ feature

A Slice of LifeThe Daily Practice of 11 Georgia LawyersBy Johanna B. Merrill and Sarah I. Bartleson

W e live in a culture

where Law &

Order is a brand

unto itself and daytime television is

filled with sassy judges on the bench.

Even with the surging popularity of

CourtTV, and real-life defendants

like Scott Peterson and Kobe Bryant

standing trial on our televisions, the

day-to-day practice of law remains,

to some, a mystery.

And perhaps not just to thepublic, but to other attorneys aswell. Can those attorneys in smallor solo practice connect to thefirst-year associate in an Atlantamega-firm? Can in-house counselrelate to the daily work life of apublic defender? Or perhapsacross practice areas, employersand geography, the daily lives oflawyers aren’t so different fromeach other after all.

In order to find out, the GeorgiaBar Journal glimpsed into the worklives of real attorneys. We followeda day in the life of 11 Georgialawyers during the week of July 19-23. Here are their stories.

Michael LandauProfessor, Georgia StateUniversity School of Law

After several years in privatepractice in New York with thefirms of Cravath, Swain & Mooreand Skadden Arps, Professor

Michael Landau realized thatboth his personality and “bodyclock” were better suited to teach-ing. “I love everything aboutteaching, with the exception ofone thing—grading exams,”Landau said. “I love the inde-pendence, autonomy and free-dom. I enjoy meeting new stu-dents year after year. I enjoyspeaking at conferences, literally,all over the world. I feel verylucky to have a job that does notfeel like work—except for grad-ing exams.”

On July 19, Landau didn’t haveany exams to grade, due to sum-mer break, so he arrived at hisoffice on campus around 10 a.m.

“My days, in general, begin onthe late side,” he said. “I tend to bea bit of a night owl.” Around 11a.m. he spoke with an attorney inFlorida regarding the possibility ofbeing an expert witness in a “rightof publicity” case.

Monday was “a good day” forLandau. He finished a manuscriptfor a new edition of Lindey onEntertainment, Publishing and the

October 2004 33

Arts: Agreements and the Law, andovernighted it to his publisher. Healso finished editing an articleregarding copyrights, trademarksand artistic attribution for anEnglish journal, The InternationalReview of Law, Computers, andTechnology. The article will be pub-lished in November. Later in theday, Landau had a discussion withhis editor at a publishing companyregarding the possibility of market-ing certain U.S. books to Europeanlawyers. “I have spoken at severalconferences in Europe in whichU.S. intellectual property law wasdiscussed at length, yet the legalpublishers did not seem to be con-centrating on that market,” he said.

Because it was summer,Landau said this wasn’t a typicalday. Not only were there no class-es to teach, but he was alsopreparing to leave for vacation, sohe was busy finishing projects.However, he said many thingsabout the day were typical. “Onany given day I spend a good dealof time working on articles andbooks and preparing for confer-ence presentations,” he said. Heleft the office around 4:30 p.m.

Landau has taught at GeorgiaState since 1993 and is currently thehead of the Intellectual Property,Technology, and Media LawCurriculum Group. He has alsobeen a visiting professor or scholarat the University of Georgia,University of Amsterdam, LouisianaState University and PennsylvaniaState University. Landau earned abachelor’s degree in economics fromPennsylvania State University in1975 and a juris doctorate from theUniversity of Pennsylvania in 1988.He was admitted to the New YorkBar in 1989 and has been an affiliatemember of the State Bar of Georgiasince 1994.

Mirtha EstradaAssistant Public Defender,Office of the DeKalb PublicDefender

Every day when Mirtha Estradaarrives at the DeKalb CountyPublic Defender’s office, she stopsto read a line from the SixthAmendment that is posted in thelobby. It reads “In all criminal pros-ecutions, the accused shall. . .havethe assistance of counsel….”

Estrada said, “The work isalways stressful, the clients areoften difficult, and the hours areerratic, but that quote is the reasonwe all keep coming back.”

On July 20 she arrived a little laterthan usual, at 10:15 a.m., as she stayedhome that morning to work withoutinterruption on a felony appeal thathas been pending since 2001. Once ather desk, she reviewed e-mail, printedout jail list requests and answered hermessages. She also conducted clientinterviews that included: an 18-year-old single mother trying to finishschool whose speeding ticket couldcost her her license; a Cuban refugeeticketed for public intoxication who isworried that the charge might preventhim from becoming a resident; and afather regarding his teenage son whowas ticketed and arrested for loitering.

At 11:30 a.m., Estrada realizedthat the only way she would finishthe jail list (the list her office sendsto Recorder’s Court of people beingheld in jail on tickets for countyordinance violations) was to skiplunch and come back to the officeafter court that afternoon.

After a lunch of pizza at her desk,she began updating the jail list. At 3p.m., a woman came to her office todiscuss one of the men on the list.The woman’s boyfriend had been injail for more than a month, chargedwith loitering for drugs. Estrada ranhis Recorder’s Court tickets and hiscriminal record and added him toher client list for the next day.

Estrada left at 4:15 p.m. forRecorder’s Court, where officersprosecute their own tickets. Whilethere she picked up six new affi-davits requesting an assistant publicdefender and left her requests forpretrials with the clerk for eachcourtroom. Before leaving, shenoticed a young Hispanic man whodidn’t speak English. She didn’thave too many clients that night, andsince he’d been in jail for 30 days andqualified for assistance, she addedhim to her list of pretrial requests.She then met with each of her clientsto review their facts and go over pos-sible scenarios while they waited forthe judge to call the cases.

At 6:30 p.m. Estrada was excusedfrom court, as all her cases had beenresolved. Two were dismissed forwant of prosecution because the offi-cers did not show up. The last casewas the high point of Estrada’s day -the resolution of the young Hispanicman’s case. He is a day laborer and athree-year U.S. resident, and hadalready been held in jail for 30 dayson a ticket. He and his family wereunable to pay his bond, which is usu-ally set approximately 30 percenthigher than the cost of paying the


ticket. To further complicate matters,his ticket was missing. The officerfinally agreed to release him, sincethey couldn’t prosecute without theabsent ticket. Estrada said, “I feltgood about that, because if I had notbeen there to follow up on his case,there is a good chance he would havejust been taken back to jail and heldthere until his ticket was found.”

Estrada returned to her officeafter court to finish the jail list. Sheadded eight new requests for acourt date or bond, recorded sixduplicate requests, and checked oneach of the previous 35 requests. At8:30 p.m. she faxed the list to thecourt and headed home.

“I believe my work mattersbecause, every once in a while, I trulymake a difference,” Estrada said.

Estrada earned her law degreefrom the University of Miami andher undergraduate degree fromthe University of Michigan. Shejoined the public defender’s officein November 2003 after threeyears as an associate with King &Spalding LLP. She was admittedto the Bar in 2000.

Patricia ThrowerBarmeyerPartner, King & SpaldingLLP—Tort Litigation andEnvironmental Practice Group

Patricia Barmeyer started herday at 6 a.m. by participating in anaerobics class. She arrived at herdowntown office before 8:30 a.m.,where she spent the first 15 min-utes reviewing e-mails, reading theFulton County Daily Report anddaily environmental reports.Barmeyer said that while she likesthe fact that her practice involves awide variety of matters and cases,it is sometimes challenging to jug-gle multiple clients. On July 20,Barmeyer assisted six separateclients with environmental mattersthroughout the course of the day.At 11 a.m. she spoke with a coastalproperty owner regarding permit-ting issues, and at 2 p.m. she par-ticipated in a conference call with agovernment agency official con-cerning recent groundwater sam-pling results. She also participatedin an internal meeting to distributethe firm’s charitable contributions.

The high point of her day was acall from a former client, now gen-eral counsel of a major transporta-tion company, asking the firm toassist her company on environ-mental issues nationwide. The lowpoint was hearing news that hergood friend, Lonice Barrett, wouldsoon be leaving his position ascommissioner of the GeorgiaDepartment of Natural Resourcesto take on an important newassignment for Gov. Sonny Perdueas head of the Commission for aNew Georgia. Barmeyer said, “Thiswas a pretty typical day for me. Ideal with multiple clients and mat-ters in any given day, and I stay onthe telephone much of the day.”

Barmeyer joined King &Spalding in 1990 after serving for17 years as an assistant attorneygeneral for Georgia. Her practice isexclusively in environmental lawand includes both environmental

and regulatory compliance and liti-gation, representing a broad rangeof public and private entities. Shegraduated from Harvard LawSchool cum laude in 1971 andearned a bachelor’s degree fromHollins College in 1968. She wasadmitted to the State Bar ofGeorgia in 1972.

Laquetta S. PearsonAssociate, Lisa R. Robertsand Associates P.C.

As a child, Laquetta Pearsonknew she wanted to be an attorney.In her first job out of law school,her wish has come true. Her firstundertaking upon arriving at theoffice at 8:30 a.m. was to work onresponses to a corporate client’sanswer to a cross-claim. However,her primary area of practice is civillaw. On July 20 she worked on sev-eral custody cases, a worker’s com-pensation claim and a divorce.

Pearson said one of the things sheenjoys most about her job is “theability to actually help clients bydoing something so simple as mak-ing a phone call or writing a letter,and they tell you that you made adifference.” A real-life example ofthis feeling put into practice was thehighlight of Pearson’s day:

October 2004 35

“A woman called seekingadvice about recovering arrearagechild support and discussed howdifficult her ex-husband wasbeing in regards to payment. Iadvised her that she could proba-bly handle her own motion forcontempt, since she has filed sev-eral in the past, and the same pat-tern of non-payment is recurring,”Pearson said. “The conversationended with her telling me I was anangel for helping her.”

On the flip side, Pearson saidthat it is often difficult when shehas clients who are emotionallyvolatile, especially in family lawmatters, and they call and take itout on their attorney. Sometimesshe has to deal with difficult mat-ters, such as the phone call thatwas the day’s low point: shespoke with a client who was“concerned that her ex-husbandmay be doing something inap-propriate to their child and herefuses to allow her visitationwith the child. She began to cryin my office and it made my heartgo out to her.”

Pearson said July 20 was char-acteristic of her normal work-days. “I usually take several callsfrom clients, provide legal coun-seling, talk with opposing coun-sel and try to resolve preliminaryissues.” Before leaving herNewnan office at 5:30 p.m., sheand her boss, Lisa R. Roberts,met for their daily discussion ofthe matters and events of theday. Later she met with her per-sonal trainer before going homefor the night.

Pearson earned her juris doctor-ate from the Walter F. GeorgeSchool of Law at Mercer Universityand her undergraduate degreefrom Clemson University. She wasadmitted to the Bar in 2004.

Bettina Wing-Che YipLabor and Human Resources Counsel, Cingular Wireless LLC

Bettina Yip starts and ends herday with a constant companion—her BlackBerry handheld. Beforearriving at headquarters on theGlenridge Connector at 8 a.m., herfirst task was to check herBlackBerry for e-mails sent duringthe night. The bulk of her workloadis communicating with clients bothover the phone and e-mail as wellas in person. One of her morningclient conversations regarded acomplaint of alleged religious dis-crimination. Her day went on toinclude conversations on the topicsof upcoming mediation, concur-ring with terminations of employ-ees and meeting with staff concern-ing paid and unpaid interns.

At noon, Yip ate a quick lunchshe brought from home before con-tinued conference calls and in-per-son meetings with clients. “I nor-mally no longer go to court, as weusually just manage litigation per-formed by outside counsel,” Yipsaid. “However, we do take part inmediations, labor arbitrations andmagistrate court hearings.” The

high point of her day was findingfavorable precedent for an upcom-ing arbitration, while the low pointwas not finding favorable witness-es for an upcoming arbitration.

Yip said July 21 was a typicalday. “My days are pretty freneticand fast-paced, with questionscoming in from clients about differ-ent areas of labor and employmentlaw.” She left the office at 6 p.m.and went to the gym before goinghome. Her day ended in much thesame way that it began—with herBlackBerry.

Yip has been with Cingular sinceMarch 2003. Her previous employ-ers were Meadows, Ichter andBowers (now Balch & BinghamLLP) and King & Spalding LLP.She graduated from ColumbiaUniversity School of Law in 1999after completing her bachelor’sdegree at Wellesley College. Shewas admitted to the State Bar ofGeorgia in 1999.

Christine M. MorganSenior Associate, Jones Day

Chris Morgan may be on areduced-time schedule, but sheisn’t a reduced-time attorney. Shearrived at the firm’s new midtownoffices around 6:45 a.m., but one or


two days a week she comes in a lit-tle before 8 a.m. so she can eatbreakfast with her boys, ages 3 and1. For most of the morning and afterlunch, Morgan worked on strategyanalyses, drafted correspondence,reviewed reports and spoke withclients. At 11 a.m. she met withCharles Perry, a partner with JonesDay, about a client matter. Morgansays that her unconventional sched-ule is possible due to the legal teamshe works with, which includesPerry, Of Counsel John H. Grady,and her legal assistant, Janie Allen.

“This teamwork and administra-tive support have been key factorsto a successful reduced hoursarrangement,” she said. “Ourgroup works very well as a teamand we cover for each other if need-ed when urgent matters arise.”

While Morgan said July 21 wasan average day without any majorhighs or lows, she and her teamdid resolve a case strategy issuethat had been challenging them forseveral months. Morgan is in theoffice five days a week to ensurecontinuity in her cases, but shetypically leaves the office between1 and 3 p.m. However, she checksin several times an afternoon fromhome to address and put out any“fires.” For example, on July 21 sheleft the office at 1:30 p.m., but par-ticipated in a client conference callfrom 2:30 to 4:30 p.m. before pick-ing up her children.

Morgan completed her under-graduate studies at DavidsonCollege, where she became attract-ed to environmental law. Sheattended Vermont Law School, oneof the top schools for those interest-ed in a career in environmental law.Before moving to Jones Day in 2003,she was an associate with Hunton& Williams in Atlanta. Morgan wasadmitted to the Bar in 1995.

Sandra L. BrownOf Counsel, Medley &Kosakoski, LLC

Sandra Brown never planned onbeing anything other than an attor-ney, but it wasn’t until her first yearof law school that she realized shewanted to focus on entertainmentlaw. She believed that the substan-tive business of bringing music tothe masses had to be interesting,and her career has proved her right.

A visit to Brown’s office leaveslittle doubt as to who some of herclients are, as the walls are coveredwith gold records and artistplaques.

“I love music,” Brown said. “Isimply set out to combine afavorite pastime, listening to

music, with making a living—and Iaccomplished that goal. My currentposition has not only allowed meto work for an entertainmentgroup, but has also positioned meto handle matters for some of themost amazing musical talent in theindustry, including hit producersand recording artists.”

On this Thursday in July shearrived at the office at 10 a.m., afterchecking her BlackBerry and partic-ipating in a conference call with aclient from her home. At 11 a.m. shedrafted a letter to a director at arecord label and sent him a demoCD of an unsigned artist at hisrequest. The rest of the morningwas spent in telephone conferencesand drafting correspondence. Aftera sandwich from her favorite shop,My Friend’s Place, Brown spent theafternoon and evening participatingin several telephone conferenceswith clients and opposing counsel.She left the office at 8:30 p.m.

Brown’s day was typical, as herworkdays revolve around contractsthat need to be either reviewed ordrafted on behalf of a client. Shesaid that agreements are very oftennegotiated at the last minute inorder to meet deadlines for promo-tional or commercial release. On anot-so-typical day, one might findher jetting to Los Angeles or NewYork for awards shows or client

October 2004 37

appearances. On June 28 she spenta day in Los Angeles to attend theAmerican Society of Composers,Authors and Publishers (ASCAP)Urban Music Awards. On August27, she was in Miami for theBroadcast Music, Inc. (BMI) UrbanMusic Awards.

After law school, Brown washired as the associate director ofbusiness affairs for So So DefRecordings Inc., a joint venturecompany with Sony Music, Inc.,owned by Jermaine Dupri. In 2000,she joined the entertainment groupof Greenberg Traurig, LLP, as OfCounsel, where she spent fouryears as primary legal counsel forvarious entertainers, entertainmentcompanies and joint venturesbefore moving to Medley &Kosakoski, LLC. Brown earned herundergraduate degree from NovaSoutheastern University in 1991and her juris doctorate fromFlorida State University’s Collegeof Law in 1994. She was admittedto the Bar in 1995.

Rebecca A. RowdenAssistant District Counsel,U.S. Army Corps ofEngineers, SavannahDistrict

On July 22 Rebecca Rowdenarrived at the Office of Counsel forthe U.S. Army Corps of Engineersin the Savannah District at 7 a.m.

“I am on a compressed workschedule, which means I work ninehours a day for nine weekdays andhave every other Friday off,” shesaid. Her first daily tasks were toread and answer e-mails, check herinbox for mail and review herschedule for the day.

Her morning was filled with areview of a drafted letter to U.S.Congressman Jack Kingstonregarding a constituent inquiry to awetland permit; a documentreview for the Regulatory Branch; ameeting with staff from theRegulatory Branch, EnvironmentalProtection Agency, U.S. Fish andWildlife and the GeorgiaDepartment of Natural Resources(this group makes up theMitigation Banking Review Teamin Georgia).

For lunch she grabbed food atthe snack bar and came back to heroffice, where she reviewed a settle-ment agreement on an enforcementaction whereby a landowner filledwetlands without a permit in viola-tion of the Clean Water Act. After adiscussion with a project manager,they determined that the agree-ment was ready to be sent to theproperty owner for signature.

Rowden said she enjoys her prac-tice with the Army Corps because“environmental law brings me intocontact with the full spectrum ofindividuals, groups, agencies, uni-versities and governmental depart-ments that seek to address mattersof environmental concern. It alsoprovides me with the opportunityto visit diverse aquatic and wildlifehabitat sites across the state.”

At 2 p.m., Rowden traveled withseveral regulatory branch projectmanagers to a site near Savannah toview wetlands that may or may notbe isolated. “The determination asto isolated wetlands is importantbecause it determines whether theArmy Corps has jurisdiction overthe wetlands or not,” Rowden said.She wore hiking clothes and bootsto work that day in preparation forthe site visit. Trips like this occurabout once a month, and she alsotravels to branch offices approxi-mately every two months andworks out of those offices for sever-al days. Otherwise, July 22 was atypical day for Rowden. She arrivedback at the Corps offices around4:30 p.m. before heading home.

Rowden attended SamfordUniversity in Birmingham, Ala., forher undergraduate degree andearned her juris doctorate from theUniversity of Richmond. She wasadmitted to the Bar in 1991.


Rowden said she enjoys her practice with the

Army Corps because “environmental law

brings me into contact with the full spectrum

of individuals, groups, agencies, universities

and governmental departments that seek to

address matters of environmental concern.”

Bertis DownsGeneral Counsel forR.E.M./Adjunct Professor,University of GeorgiaSchool of Law

Since 1981, Professor BertisDowns has split his time working

for the music group R.E.M. andteaching at the University ofGeorgia School of Law. July 23 wasno different.

Since the mid-1990s, Downs onlyteaches based on his availability.When he does teach, it is a four-minute walk between the R.E.M.office in downtown Athens and thelaw school. He likes to teach 8:30a.m. classes, because then heknows the students want to takehis class, not just fill a convenientslot in their schedule. While teach-ing, his days aren’t that different—he just starts the R.E.M. portion ofhis day a little later. He says teach-ing is important to him because itkeeps him around younger, morenimble minds in a fast-changingworld and business.

“After college, I wanted to gointo legal services or poverty law,”Downs said. “1981 was not a good

year to emerge from law school inthose areas. Luckily, the band wasstarting up and the law schooloffered me a teaching job. I havebeen fortunate to combine thosetwo jobs ever since.”

R.E.M. is preparing to release anew record and go on tour to sup-port it. “There is a lot of planningand coordination that goes on inmaking sure all goes well,” Downssaid. “Some of that involves bandwork, dealing with record label per-sonnel and dealing with other thingsat the office. My job is to know allthat is going on and make sure thatit gets done in a timely fashion—which can be a challenge.”

When asked about the favoritepart of his job, Downs answered,“All of it is intellectually challeng-ing, and I know I am fortunate tohave had such a good relationshipwith the band over the years.” His

October 2004 39

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least favorite aspect? He doesn’tlike all of the travel now that he hasyoung children.

Downs said a typical day is spenttalking on the phone and e-mailingclients. July 23 was no different,with the exception of having lunchwith his good friend Dan Coenen, afellow UGA law professor. Then itwas back to the phone and his iMacfor more calls and e-mails.

Downs earned his juris doctoratefrom the University of GeorgiaSchool of Law in 1981 and hisundergraduate degree from David-son College in 1978. He was admit-ted to the Bar in 1981.

Stanley A. SeymourAssociate, KilpatrickStockton LLP – CommercialLitigation Practice Group

Stan Seymour arrived atKilpatrick Stockton’s downtownoffices on Peachtree Street at 7:30a.m., and his first task was to workon questions for upcoming deposi-tions in Louisiana. Later in themorning, he met with a partner todiscuss additional attorneyinvolvement in charitable, commu-nity activities, which are stronglyencouraged at the firm. Afterlunch, Seymour joined a summer

associate at the Black Arts Festivalat Underground Atlanta to watchthe performance of an entertain-ment client. Upon his return to theoffice, he conferred with anotherpartner to discuss a substantivebrief, which he filed later that day.Unfortunately, after the brief wasfiled, he lost his keys somewherenear the Fulton CountyCourthouse! (He later found them.)

After leaving the office at 6:30p.m., Seymour met a client for din-ner. Following their meal, he metwith a different client at theAtlantis Music Conference to dis-cuss and watch the client’s per-formance. Following the show,Seymour spoke with the artist andrepertoire representatives from amajor record label about a possibledeal for the client. Seymour said,“It is not every day that an enter-tainment client performs inAtlanta, as most of them are out-side Georgia, so it was a treat.”

Seymour said he spends his daysworking on briefs, meeting withclients, preparing for depositions,collaborating with partners andpreparing for hearings, so July 23was a typical day for him. “What Ilove about practicing at a large lawfirm is how each matter always pres-ents some legal issue or involvessubject matter that is different andunique from case to case. There isalways something different goingon, or at least there is the potentialfor such,” he said. “Plus, I reallyenjoy the people I work with.”

Seymour attended HowardUniversity School of Law andearned his law degree in 2001. Hisundergraduate years were spent atNorthwestern University, wherehe completed a bachelor’s degreein Speech Pathology in 1997. Hewas admitted to the State Bar ofGeorgia in 2002.

William H. “Beau”McClainChief Assistant DistrictAttorney, Douglas JudicialCircuit

Beau McClain arrived at theDouglas County Courthouse, wherethe DA’s offices are located, at 7:30a.m. on July 23. On days when heisn’t scheduled to appear in court,McClain spends his time on thephone, working files and visitinglocal law enforcement agencies, sothis Friday was a “very typical” day.

Around 8 a.m. he met with awoman whose daughter is in jail ona methamphetamine traffickingcharge. McClain said this meetingwas the low point of his day, as thewoman cried in his office and hehad to “tell her the truth about thesituation instead of telling hersomething to make her feel better.”Later in the morning he spoke witha detective regarding an ongoingmortgage fraud case and anotherassistant district attorney about ahome invasion and robbery case,and he put in a call regarding adrug case and worked out a plea.Around 12 p.m., McClain went tolunch with a friend who is a juve-nile court prosecutor.


In the afternoon, McClain hadseveral conversations with lawenforcement officers and investiga-tors concerning pending cases. Hemet with a detective regarding amurder case, followed by two tele-conferences with other officersregarding an assault case and adrug investigation.

The day ended with a meetingwith the DA’s investigator regard-ing a fraud case. Before departingthe office at 6:55 p.m., he revieweddocuments related to the fraud case.

McClain said the thing he enjoysmost about his job is being able tohelp people in difficult—and oftentragic—situations.

“A few years ago I prosecuted agroup of defendants who wereinvolved in the home invasion of aman they believed to be a drugdealer. This man was brutally beat-en and his family and small chil-dren were terrorized. Because ofhis race and the belief he was acriminal, he did not think the sys-tem would do anything. When thejury convicted the perpetrators, thevictim started crying and gave mea big hug and said ‘Thank you forfighting for my family,’” McClainsaid. “Those sort of moments makethe job worthwhile.”

McClain attended the EmoryUniversity School of Law where hecompleted his juris doctorate in1981. He also earned a bachelor’sdegree from Emory in 1978.McClain was admitted to the Bar in1981.

Johanna B. Merrill is the sectionliaison for the State Bar ofGeorgia.

Sarah I. Bartleson is the assistantdirector of communications forthe State Bar of Georgia.

October 2004 41

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yourPotential

T here are many within

the legal profession

who agonize over the

public’s perception, or mispercep-

tion, of lawyers. They tend to

attribute negative perceptions to

lawyer misconduct and believe

simply that lawyers should just

learn how to act. They feel the need

to apologize for the profession and

their role in it. They are timid about

their status as lawyers. For those

who feel that way—get over it! The

public will never fully understand

or appreciate this profession. We

should not expect them to. There

are limits on our ability to affect the

public’s opinion.

However, the legal professionremains without a doubt the

“noblest of profes-sions.”1 Everyone whois engaged within itshould be proud of itand stand up for it. Thelawyer’s duty is to act asprofessionally as possi-ble, and the public’simage of the professionwill take care of itself.

The word “profes-sionalism” does notappear in Black’s LawDictionary because it isnot a legal term. Instead,it is a generic termwhich refers to the “sta-tus, methods, characteror standards” of a pro-fession.2

In order to under-stand what we mean bythe term “professional-ism,” we need to under-stand the particular profession weare talking about. The “status,methods, character or standards” ofthe legal profession differ greatlyfrom those of such other professionsas wrestling, medicine, fortunetelling, accounting, acting and horsetrading. Each profession is unique,

and its standards are unique. Sowhat exactly is the essential natureof the legal profession?

The American legal profession isthe only profession outside of thepress or the military that is includ-ed in the federal constitution. It isconstitutionalized in the form of the


Standing Up for the Legal ProfessionBy Judge Toby Prodgers

GBJ feature

Sixth Amendment’s guarantee ofthe right to counsel. We must there-fore look at lawyering in its consti-tutional context, especially in thecontext of one of the great themes ofthe Constitution, that is, the man-agement and resolution of conflict.

The framers recognized that con-flict is inherent in the nature ofhumankind. The proclivity ofhumans to engage in conflict is infi-nite. We encounter conflict involv-ing intimate personal relationshipsamong family, friends and neigh-bors. We encounter conflict at thelocal, state, regional, national andinternational levels. We encounterconflict among groups. Humans arenotorious group joiners and groupidentifiers. Depending on what isimportant to a person, he or she canbe a member of a race, a gender, ageneration, an ethnic group, a reli-gion, a family, a neighborhood, acity, a county, a state, a region and anation. He or she may also be aDemocrat or a Republican, aBulldog or a Yellow Jacket, a footballfan or a soccer fan, an English speak-er or a Spanish speaker, a businessowner or an employee, from here ornot. He or she may be a liberal or aconservative, for the war or against

it, a baby boomer or generation Xer,wealthy or poor, healthy or not.

The number of groups, causesand issues is immense, especiallyin a society whose constitutionplaces its primary value upon theinterests of the individual asopposed to those of the state. In theAmerican system, the propensitytoward conflict is exacerbated bythe fact that individuals areencouraged to compete in pursu-ing their opportunities. We com-pete for the same resources, includ-ing money, space, time and things.

The framers also recognized that,in addition to our propensity forconflict, we humans possess anoth-er great characteristic—passion. Wepursue our opportunities passion-ately. We protect and promote ourfamilies, community and countrypassionately. We love the Bravesand hate the Mets (or vice versa).For most of us, there is great pas-sion behind every one of our rela-tionships, ideas, groups or issues.

The framers understood thatthese passions cannot, and shouldnot, be controlled by the state.Instead, they created an extraordi-nary process, at several levels,where we can fully engage our con-

flicts and passions without destroy-ing ourselves or the primacy of theindividual. At the national level, ourcollective passions either in favor ofor against the incumbent govern-ment grow as time goes on. Theframers decided that we shouldengage these conflicts and ventthese passions by way of a processcalled elections. Every four years wefight mightily for the hearts andminds of similar thinkers and havea resolution in the form of an elec-tion. We do the same as the impactof government gets closer and clos-er to home, and we engage in stateand local elections to resolve dis-putes as to the composition andpolicies of local government.

But most conflicts amonghumans are resolved by otherprocesses. Historically, these dis-putes have been resolved by force.They have been resolved in the OKCorral, in the back alley, andaccording to which side had themost power or men under arms.We no longer do it this way. In oursystem the battlefields have beenreplaced with courthouses. It is inthe courthouses where serioushuman conflicts are resolved. Therest of the landscape is safe ground.

October 2004 43

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There was a movie a few yearsago called Braveheart starring MelGibson. The story was set in the14th century and involved a hugebattle to determine who wouldgovern Scotland. The two opposingforces, adorned in war paint,hurled themselves at each other ina savage encounter on the field ofbattle. They slashed and killed eachother. The victors rampagedthrough the countryside raping,pillaging and burning.

We fast forward some 600 years toanother great battle, this one for con-trol of the government of the UnitedStates, the most powerful nation inthe history of the world. This battletook place not on a bloody battle-field, but in Tallahassee, Fla., in asmall courtroom where the air condi-tioning was not working. Instead ofgenerals and soldiers with spearsand arrows, this battle was fought bylawyers with briefcases. Court wascalled to order promptly at 9 a.m. Allthe lawyers stood when the judgeentered the room. When one lawyerstood to speak the opposing lawyerwould sit silently. When finishedspeaking the lawyer would sit down,and it would be the other lawyer’sturn to stand and speak. When thearguments were finished, thelawyers rose, the judge left thebench, and the world peacefullyawaited the decision.

What a way to fight a battle forcontrol of the greatest and most

powerful nation in the history ofearth! With lawyers, not warriors.How far civilization has come! Yetsome in the public and in the mediacriticized these magnificentlawyers. There was criticism thatover $13 million was spent in legalfees as though the price of thisgreat process was too much. Butnobody criticized the TexasRangers that same month whenthey agreed to pay a quarter of abillion dollars to sign a shortstop.3

There exists a vast amount ofboth substantive and procedurallaw that has been developed overgenerations by thoughtful men andwomen to resolve the criminal andcivil disputes we find ourselvesinvolved in. Lawyers provide uswith access to these laws so that wecan engage on a level playing field.Lawyers also plug us into opportu-nity. This is a land of opportunity.We are not dependent upon a dis-passionate and disinterestedbureaucracy to advise us regardingthe laws which govern our under-takings as we pursue opportunitiesin the free enterprise system.

All lawyers cringe when newsemerges of dishonest or criminalconduct by another lawyer. It doeshappen, but such conduct isextremely rare. The problem withthe legal profession in this regard isthat lawyers are drawn from thegeneral population of humanbeings as a whole. There are bad

actors in the general populationand some of them do find their wayinto the legal profession, just asthey do all other professions. Butthat should certainly not be anindictment of the profession itself.

On the contrary, there is no morereliable group of people than thoselawyers who labor within the adver-sary system. This is due to the greatscrutiny to which they are subjected.A lawyer is subject to the intensescrutiny of the client, of the adverseparty, of the adverse lawyer, of thejudge, and of the disciplinaryauthority of the State Bar, not tomention his or her malpractice carri-er. Several years ago, former ChiefJudge Watson L. White of theSuperior Court of Cobb Countyoffered his observation at a CobbBar Association meeting that, large-ly because of the nature of the adver-sary system and of the scrutiny towhich they are subject, lawyers aremore honest, more diligent andmore reliable than members of anyother profession or group. That isbecause they have to be.

Lawyers must understand thatthe public will not necessarilyappreciate their value or how criti-cal they are to the proper function-ing of our society. This is largelybecause, as indicated above, thelawyer’s milieu is human conflict.People understandably associatelawyers with conflict. Althoughpeople are constantly involved in


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 adver-

sary 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.

conflict, they generally do not likeit. It is essential, therefore, thatlawyers assist in the managementof conflict without creating it ormaking it worse. In this regard,perception is frequently moreimportant than reality.

Professional conduct is thereforean indispensable element of theprofession. And, just as important,professional conduct enhancesadvocacy and frequently has animpact on the outcome of a case.The lawyer’s conduct anddemeanor can evoke a visceral reac-tion on the part of the decision-maker either for or against theadvocate and the cause. The follow-ing are some thoughts on profes-sionalism in the adversary systemfrom the perspective of the bench.

The Lawyer’sRelationship with the Client

One aspect of any proceedingthat the decision-maker tends tonotice is how the lawyer relates tothe client, or, in the case of a prose-cutor, with the prosecuting wit-ness. Most good lawyers seem to beable to develop reasonably goodrelationships with their clients,although certainly this is notalways possible. Many clients endup being a punishment to thelawyer based on some misdeed inone of the lawyer’s previous lives.But it always evokes a positiveresponse to see the lawyer relatingin a considerate, respectful mannertoward the client and doing smallthings like making sure the client iscomfortable. Of course, this can beoverdone as well. But judges andjuries are usually taken abackwhen they see a lawyer ignore theclient or treat the client rudely. Itdoes not happen often, but when itdoes, it is noticeable.

The Lawyer’sRelationship with theOther Lawyer

The lawyer’s relationship with theadversary is critical and seems to bethe crux of professionalism withinthe legal profession. A lawyer is somuch more appealing and persua-sive when he or she treats the adver-sary lawyer with dignity andrespect. Trial judges can usually tell,or at least guess, when there havebeen difficult encounters betweenthe lawyers. But the good lawyers donot bring personal animosity withthem into the courtroom. The effec-tive lawyers are able to sit there andtake the scorn and abuse from theother lawyer without responding inkind. Of course, there is nothingworse to a lawyer’s case than to actscornfully toward the other lawyer.This goes for civil litigators as well asfor defense counsel and prosecutors.

The practice of law, especiallycriminal law, is all about relation-ships. Most lawyers know that theymust deal with each other anotherday. However, this is not alwaysthe case. Some lawyers might betempted to engage in abusivebehavior if they believe they willnever see the adversary again. Butlawyers and people talk. Suchbehavior almost invariably catchesup with the culprit sooner or later.A good relationship with the otherlawyer is indispensable to the abil-ity to obtain a good outcome.

Part of establishing a good rela-tionship is recognizing the adver-sary’s problems. For example, theprosecutor should understand thatthe defense lawyer is not theaccused and that the lawyer is ful-filling an essential constitutionalfunction. The prosecutor shouldunderstand that the defenselawyer’s primary source of infor-

mation is often the client, and thatthe client is not always reliable. Theprosecutor should know that thelawyer is, in most cases, workingwith limited resources. The prose-cutor should understand that courtappearance conflicts are real andare an expected part of any busytrial practice. The prosecutor getsto go to the same courthouse andpark in the same place every day.The defense lawyer does not. Theprosecutor is generally assigned to

October 2004 45

one judge. The defense lawyer hasto placate them all. The defenselawyer must anticipate whichjudge will claim priority and mustmollify clients and witnesses inseveral venues all at the same time.

The defense lawyer must under-stand that the prosecutor is usuallyworking under a crushing caseloadand is accountable to numerousvictims and public authorities. Andnot all prosecutors get the assis-tance that they need.

The better relationships that thelawyers can develop among them-selves, the better they are able toserve their clients and constituencies.

The Lawyer’s Conducttoward the AdverseParty or Witnesses

As indicated above, it is allabout passion and conflict. Butlawyers need to have it under con-trol. Judges and juries do not liketo see lawyers bashing the day-lights out of each other, the par-ties or the witnesses.Subconsciously they hold itagainst the basher. Rememberthat it is, after all, a civilizedprocess. Your adversary gets toask questions and you get to askquestions. Develop your cross-examination techniques throughtraining and practice. You are notallowed to smite the hostile wit-ness. The most professional andeffective cross-examiners are peo-ple like Hylton Dupree and thelate Bobby Cleveland who neveronce raised their voices, used sar-casm or showed their own person-al angst over the perfidy of thatlie-bag on the other side. We haveall seen cases where lawyers havelost simply because they wereunable to control themselves emo-tionally in the face of a difficultcross-examination.

The Lawyer’sRelationship with the Court

I tried my first case almost 30years ago, and I still remembersome of the adverse rulings I got.Of course, those rulings werewrong. Or were they? Since I havebeen on the bench, I have seen howthe world turns from an entirelynew perspective—one I wish I hadbeen privy to way back then.

The trial lawyer needs to under-stand a bit about the perspectivefrom the bench. The judge simplydoes not know the case as well as thetrial lawyer does. The lawyer hasbeen living with it for months oryears. The judge is probably beingexposed to the case for the first time.Also, the judge has to use both sidesof the brain during an evidentiaryhearing. One side of the brain listensto the content and quality of the tes-timony insofar as it relates to themerits. The other side of the brain islistening procedurally for possibleobjections. And, unlike the advo-cate, the judge is not necessarily pre-pared to anticipate a particularbomb blast or nuance in the evi-dence. So do not be surprised oralarmed if the judge does not havethe same appreciation or grasp ofthe evidence or its context as you do.

When you get an adverse ruling,do what you need to do to preservepossible error for appeal. But it isunprofessional and counterproduc-tive to show your pique to the judge.The judge knows in a close case thathe or she might be wrong. You donot need to let the judge know bybody language, eye rolls or other-wise your personal feelings on thematter. The lawyer does not need toevoke adverse visceral feelings onthe part of the judge. Besides, theremight be another ruling coming

right around the corner. Also, youdo not need to thank the judge for aruling either way. Understand thatthe lawyers and the judge are allinvolved in a common enterprise toresolve the dispute fairly and consis-tently with the rules.

There is another phenomenon thatI did not know existed until I got onthe bench. It is called being rude tothe staff. It does not happen often andwhen it does happen, it is usually bypro se individuals. However, somelawyers have called and spoken withstaff in a way they would never, everspeak with the judge. Guess whathappens as soon as the conversationends? When you speak with staff, doso just as you would speak with thejudge. Also, make sure that your staffunderstands the importance of beingcourteous and civil with everyone,including the other lawyer, the par-ties, the witnesses, the judge and thejudge’s staff.

The bottom line is courtesy, dig-nity and respect to all participantsin the adversary process. Be proudof what you do. Be proud of yourprofession.

Judge Toby Prodgersis a 1974 graduate ofthe University ofGeorgia School of Law.He clerked for a year

with Justice Hiram Undercofler ofthe Supreme Court of Georgia. Hethen practiced law for 20 yearswith the Marietta firm of Awtrey& Parker doing primarily civil liti-gation and business law. He hasserved on the Cobb State Courtbench since 1995.

Endnotes1. Berry v. State, 10 Ga. 511, 522

(1851)(per Lumpkin, J.)2. The American Heritage College

Dictionary, p.1092 (3d ed. 1993).3. $25,000,000 per year for ten years

to Alex “A-Rod” Rodriguez.


October 2004 47

Who was he, this man called “Colonel,” With no uniform in sight? Some wondered why this simple man Was ranked as one of might.

He never made a lot of money. He never wore a robe. He never was a senator. He never shook the globe.

But who he was, this barrister, This worthy brother of mine, — Was a fair and honest advocate—With a superb legal mind.

He gave his clients full measure fare (Whether rich or poor or broke).He gave a truthful full accountingOf every dime he held for folk.

He bravely kept each confidence But was loyal to the truth.Gave wise and candid counseling.Knew all other would be uncouth.

He treated all others fairly—Brother at law or “Yank.”His word was “bonded debt,” Which was honored at the bank.

A cordial friend to lawyers all, —A mentor to the new.

He fought a fierce fight for his clientsBut salved raw wounds when through.

His ethics were pure and simple—Learned at his mother’s knee.They were the Ten Commandments—Plus another two or three.

His practice grew through “word of mouth.”He did not advertise.‘Ads,’ they then deemed “barratry,”He’d still find most unwise.

He took his duties seriouslyAs an officer of the court.Worked hard on matters pending—Whether real estate or tort.

He made a difference for good downtown,When his sage advice was sought.He gave it very freelyWith humor, wit, and thought.

His life, summed up for all to seeFor all who really care,Was plain but satisfyingFrom a trade of stress and wear.

So, who was this man called “Colonel”—This beacon light of law?He was just a good Georgia lawyerWho earned our respect and awe.

Ode to The First Georgia Colonel* By Arthur A. Morrison

GBJ feature

W 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

“Colonel.” I even received a good bit of my mail from members of the older gen-

eration 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.

When I inquired as to why thisform of address was often given tolawyers, I was told that it probablybecame popular after the “WarBetween the States,” when manymilitia units had been formed bylocal communities from untrainedcivilians. Because lawyers then,generally, had a bit more leader-ship experience and problem-solv-ing training than most of theirenlisting companions, they wereusually among those who wereelected as officers of the new army;and a large number of themreturned home after the war ascolonels. Hence, this honorary titlebegan to be used liberally inaddressing any lawyer (and still

was often so used, in the early 60sin the “Old South” community ofJonesboro, where I was then firstadmitted to the Bar).

This historical view and rea-soning is strictly based on legendand hearsay as far as I know, forI have seen nothing before on thispoint in writing. However, thisexplanation seems particularlyplausible to me when I recall that,during indoctrination taught inour military services, we were toldthat one should address an officerby the highest rank probable,whenever one is uncertain of theother’s actual rank, which oftenoccurs when the parties are incivilian clothes. And if, by sodoing, an error is made, the errorwould merely result in harmlessflattery, rather than a more seri-ous, personal slight.

From reading history and letterswritten in the South during thepost-Civil War era, we can gleanthe fact that those were times whenmanners and consideration for oth-ers were highly valued. Andbecause the lawyers by then wouldhave been back in civilian clothesat court, often their ranks would beunknown. Hence, “Colonel” wasthe highest rank probable (for thegenerals were mostly career mili-tary officers and relatively few innumber, and their names and rankswere, for the most part, wellknown).

If I ever hear a better explanationfor this former widespread use ofthe term “Colonel” in the post-war

South, I will willingly accept it.Until then, this logical answer willsuit me just fine.

However, it appears that the useof this most honorable, honoraryterm, “Colonel,” has waned inrecent years (seemingly beingreplaced by another honorable butmore modern-sounding term,“Counselor”). But regardless of thereal reasons for how the use actuallycame about, I believe our culturesuffers when we forget typical OldSouth manners, and I rather regretthe loss of use of this form ofaddress, particularly in the case offuture lawyers; for the word“Colonel,” as so used, implied a cer-tain level of personal achievement,which had been fairly earned.Secondly, I have known manylearned brothers who gave the hon-orary title “Colonel” a very good

name, well fitting the descriptioncontained in my short poetic essay.And thirdly, under our fairly bal-anced legal system, the closest thingto a warm and fuzzy feeling alawyer could ever have (at least for ananosecond) is when the judge said,in a friendly voice in front of theclient, “Colonel, what is your posi-tion on this matter?” For the judge toaddress a lawyer in this flatteringmanner was not only a beneficialsanction for good, but it was alwayssure to make the client feel that hisown lawyer’s legal mind wasrespected by the judge, if only forthat one short moment before theclient’s lawyer was ruled against!This pleasant sanction is nowmissed.

So, although the use of that illus-trious title, “Colonel,” which wasonce so often used, may nowhenceforth be relegated to the his-tory books, it does seem that thetime has finally arrived for all of usto remember, with fair reasoning,the customs which followed the1860s war. And yes, to discard forall time those errant customs whichare now known as having beenwrong, while retaining those whichwe still perceive to have been good.

And it seems we have good rea-son to believe that the lessons ofdecency and civility which wereexhibited by that same respectedgentleman, who first shined a lightfor us down the emerging legaltrails toward our own ‘Halls ofJustice,’ were very good, indeed.

Furthermore, I am convincedthat the vast majority of our pres-ent day younger siblings at the Barstill appreciate, and would hope toemulate, the ideals of that “FirstGeorgia Colonel.” Indeed, most tryto do so, through his or her ownunique gifts of manner. For the“First Colonel’s” values were also


I am convinced that the vast majority of our

present day younger siblings at the Bar still

appreciate, and would hope to emulate, the

ideals of that “First Georgia Colonel.”

the much admired standards of the‘role models’ who brought us all tothe Bar.

Arthur A. Morrison isa Navy veteran, and agraduate of theUniversity of Georgiaand Emory LawSchool. A Savannah

native, he practiced law in ClaytonCounty. He is a past president ofthe Clayton County Bar and theRotary Club. Now in retirement inSouth Fulton County, his hobbiesinclude playing trombone with“The Southernaires” Big Band.

*To paraphrase from several diction-aries, the term “Colonel” has been var-iously described as: 1. An army com-mander (principally of a regiment), 2.An honorary title used in the Southernstates in connection with prominentbusinesspersons or other leaders, and3. Earlier in the South, a title of respectgiven to certain noted elderly men; theterm originally probably meant aleader of a column of men. In my poem,the “First Colonel” represented a com-posite personification of some virtuousqualities, which I often observed, earlyon, in many former, older members ofthe bar.

October 2004 49

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Contact [email protected] formore information or visit the Bar’s Web site,

Key your way to www.gabar.org.The one site you need for top-notch

legal information and State Bar resources.


GBJ feature

Notice of Expiring BOG TermsL isted below are the members of the State Bar of Georgia Board of Governors whose terms will expire in June

2005. These incumbants and those interested in running for a specific post, should refer to the election sched-ule (posted below) for important dates.

Alapaha Post 1 ..........................Hon. Carson Dane Perkins, NashvilleAlcovy Post 1 ..........................................Steven A. Hathorn, CovingtonApplalachian ........................................................Edwin Marger, JasperAtlanta Post 1 ..........................................Dow N. Kirkpatrick, II, AtlantaAtlanta Post 3 ..................................................H. Fielder Martin, AtlantaAtlanta Post 5 ..........................................Thomas G. Sampson, AtlantaAtlanta Post 7 ................................................Aasia Mustakeem, AtlantaAtlanta Post 9 ..........................................Charles Scott Greene, AtlantaAtlanta Post 11 ........................................Roger Eugene Murray, AtlantaAtlanta Post 13 ................................................Pat F. McMahon, AtlantaAtlanta Post 15 ............................................Letitia A. McDonald, AtlantaAtlanta Post 17 ......................................Kenneth L. Shigley., East PointAtlanta Post 19 ......................................Robert L. Shannon, Jr., AtlantaAtlanta Post 21........................................Patricia Anne Gorham, AtlantaAtlanta Post 23 ..............................................Donna G. Barwick, AtlantaAtlanta Post 25 ..............................................Phyllis J. Holmen, AtlantaAtlanta Post 27 ................................................Nancy J. Whaley, AtlantaAtlanta Post 29 ..................................Tina Shadix Roddenberry, AtlantaAtlanta Post 30 ..................................................Karlise Y. Grier, AtlantaAtlanta Post 32 ..................................Seth David Kirschenbaum,AtlantaAtlanta Post 34 ..........................................Allegra J. Lawrence, AtlantaAtlanta Post 36 ............................................Robin Frazer Clark, AtlantaAtlantic Post 2......................................Joseph D. McGovern, GlennvilleAugusta Post 1 ..........................................J. Benjamin Kay, III, AugustaAugusta Post 3 ..................................Thomas R. Burnside, Jr., AugustaBlue Ridge Post 2 ....................................Gregory A. Hicks, WoodstockBrunswick Post 1 ..............................................J. Alvin Leaphart, JesupChattahoochee Post 2 ..............................William C. Rumer, ColumbusChattahoochee Post 4................................Earle F. Lasseter, ColumbusCherokee Post 2............................................J. Lane Bearden, CalhounClayton Post 1..........................................H. Emily George, Forest ParkClayton Post 3 ..........................................Charles J. Driebe, JonesboroCobb Post 2 ..........................................Hon. Adele L. Grubbs, MariettaCobb Post 4 ....................................................Patrick H. Head, MariettaCobb Post 6 ................................................John Kevin Moore, MariettaConasauga Post 2 ......................................Henry C. Tharpe, J., DaltonCordele ................................................................John N. Davis, ViennaCoweta Post 2 ................................................Delia T. Crouch, Newnan

Dougherty Post 2 ..................................Hon. Gordon R. Zeese, AlbanyDublin ............................................................Daniel M. King, Jr., DublinEastern Post 2 ..........................................William K. Broker, SavannahEastern Post 4 ............................................N. Harvey Weitz, Savannah Flint Post 1 ..............................................Gregory A. Futch, StockbridgeGriffin Post 2................................................Roy B. Huff, Peachtree CityGwinnett Post 1 ............................................David S. Lipscomb, DuluthGwinnett Post 3 ........................Hon. Robert V. Rodatus, Lawrenceville Lookout Mountain Post 2....................Christopher A. Townley, RossvilleMacon Post 1 ..............................Hon. Lamar W. Sizemore, Jr., MaconMacon Post 3 ................................................Robert R. Gunn, II, MaconMiddle Post 2..................................William Steven Askew, SwainsboroMountain ..............................................................James T. Irvin, ToccoaNortheastern Post 2 ............Hon. Robert W. Chambers, III, GainesvilleNorthern Post 1 ........................................C. Patrick Milford, CarnesvilleOcmulgee Post 2 ............................Wilson B. Mitcham, Jr., GreensboroOconee Post 2 ..........................................John P. Harrington, EastmanOgeechee Post 2 ..................................Susan Warren Cox, StatesboroPataula........................................................C. Truitt Martin, Jr., DawsonPiedmont ........................................................John E. Stell, Jr., WinderRome Post 1 ....................................................Paul T. Carroll, III, RomeSouth Georgia Post 2 ..........................................Gary O. Allen, PelhamSouthern Post 2 ......................................Robert Daniel Jewell, MoultrieSouthwestern ......................................Hon. R. Rucker Smith, AmericusStone Mountain Post 2 ......Hon. Johnny W. Mason, Jr., Atlanta/DecaturStone Mountain Post 4 ................................M.T. Simmons, Jr., DecaturStone Mountain Post 6................................A. Thomas Stubbs, DecaturStone Mountain Post 8............................Hon. Robert P. Mallis, DecaturTallapoosa Post 1..........................Michael Douglas McRae, CedartownToombs ....................................................Dennis C. Sanders, ThomsonTowaliga ......................................................W. Ashley Hawkins, ForsythWaycross Post 2 ....................................Huey W. Spearman, WaycrossWestern Post 1 ..................................Hon. Lawton E. Stephens, AthensOut-of-State........................................Michael V. Elsberry, Orlando, Fla.Member at Large Post 1* ..................................Althea L. Buafo, MaconMember at Large Post 2* ........................Bettina Wing-Che Yip, Atlanta

* Post to be appointed by president-elect.

State Bar of Georgia 2005 Proposed Election ScheduleOctober Official election notice, October Georgia Bar JournalDec. 15 Mail Nominating Petition Package to BOG Incumbents and

any other member requesting package2005Jan. 13-15 Nomination of officers, Midyear Board of Governors

Meeting, Omni Hotel, CNN Center, AtlantaJan. 25 Deadline for receipt of nominating petitions for incumbent

BOG Members (Article VII, Section 2)

Feb. 25 Deadline for receipt of nominating petitions by new BOGCandidates

March 7 Deadline for write-in candidates for officer to file a writtenstatement (not less than 10 days prior to mailing of bal-lots–Article VII, Section 1 (c))

March 16 Ballots mailedApril 16 12 p.m. deadline for ballots to be cast in order to be validApril 18 Election results available

“And Justice for All” 2004 State Bar Campaign for the Georgia Legal Services Program, Inc. (GLSP)

DidYou 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 pro-vides 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.” Givebecause you care! Contribute on your State Bar Dues Notice, or use this coupon to mail your gifttoday!

YES, I would like to support the State Bar of Georgia Campaign for the Georgia Legal ServicesProgram. 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

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■ Leadership Circle $ 500 - $ 749 for a pledge of $Pledge payments are due by December 31. Pledges of $500 or more may be paid in installmentswith the final installment fulfilling the pledge to be paid by December 31. Gifts of $125 or more willbe included in the Honor Role of Contributors in the Georgia Bar Journal.

Donor Information:

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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

Thank you for yourgenerosity!

From its early beginnings

in 1825, Thomasville

quickly became the gate-

way to western Florida and the

dominant trading center for the

southernmost tip of the Cotton Belt

in Georgia. The county’s first court-

house was built in 1827 of “split

pine logs covered with pine

boards.” In 1830, the entire county,

which at that time included large

portions of present-day Brooks,

Colquitt and Grady counties, had

only about 3000 residents.

In 1846-47, a brick courthousereplaced this first crude structure butwas badly damaged by a storm in1853 and declared unsafe in 1855. Bythe early 1850s, the county’s popula-tion had exceeded 10,000. As newsettlers, eager to exploit the com-pelling promise of cotton, began toclear Thomas County’s great expans-

es of pine,T h o m a s v i l l esought to devel-op its ownbrand of cultureand refinementin what stillmust have beena rather remoteoutpost of thev a n i s h i n gAmerican fron-tier. In hisStatistics of theState of Georgia,George Whiter e p o r t e dThomasville’spopulation ataround 500 in1849. By someaccounts, thetown experi-enced considerable growth in the1850s, reaching 2500 residents by1860 when the Atlantic and GulfRailroad was completed toThomasville from Savannah.

This 1858 courthouse, designedby the transplanted EnglishmanJohn Wind, was an enormousbuilding for its place and time, and

with the seeds of sophisticationgerminating in Thomas County’scrude garden of pioneer pragma-tism, symbolic architectural mes-sages elevated this structure abovemere practical considerations. Todiscover this building’s soul, wetoday must mentally peel away anextensive 1885 remodeling to find


The Thomas County Courthouseat Thomasville:The Grand Old Courthouses of GeorgiaBy Wilber W. Caldwell

GBJ feature

Built in 1858. John Wind, architect. Remodeled in 1885.

Phot

o by

Wilb

er W

. Cal

dwel

l

October 2004 53

the building’s original form a sim-ple example of the early Americanbrick vernacular style. This ele-mentary style, which often devel-oped along the edges of theAmerican frontier, was usuallyinspired by details and elevationspresented in various practicalbuilders’ guides, like the ones pub-lished in the early 19th century byAsher Benjamin. Benjamin’s simpleclassical forms were used through-out America to convey lofty imagesof purity, justice, democracy, rea-son and so on.

Despite such imagery, the resultof Wind’s manipulations of AsherBenjamin’s much copied form wasprobably more reflective ofThomasville’s economic successand commercial growth than any-thing else. This building distin-guished Thomasville more by itssize and quality of constructionthan by its artistic qualities ofdesign. This distinction is madeeven more radiant when the build-ing is compared to many of itsneighbors. Thomasville hadundoubtedly managed somedegree of cultural refinement by1860, as wealthy planters achievedenough success in the fields tomove their residences to town.Nonetheless, Thomas County sure-ly had its rough edges on the eve ofthe Civil War, and this building, inits original form, perhaps spokebetter for that practical frontier cul-ture than it did for a fabled“planter aristocracy.”

The 1885 remodeling of theThomas County Courthouseundoubtedly did much to affirmThomasville’s belief in such aristo-cratic Old South mythology. TheItalian Renaissance details, pre-sumably the design of local con-tractors Eaves and Chase, addedconsiderable charm to what

theretofore had been a rather starkold red brick pile. After a fewyears, it became natural forThomasvillians to simply assumethat the building had always radi-ated this refined neoclassical aura.As in so many Southern towns, analmost unavoidable inferenceoccurred. Late 19th century archi-tectural sophistication came to doc-ument a rose-colored vision of soci-ety in the earlier period, implyingan antebellum cultural enlighten-ment similar to the one detailed inthe then emerging myths of the OldSouth.

The 1885 remodeling of the oldvernacular building lifted thestructure out of the frontier andinto a more sophisticated, if not up-to-date, American architectural era.Here we find Renaissance themes,but details generally recall theolder Italianate style popular in thepre-war period rather than themodern clothing of the blossomingAmerican Renaissance Revival,which, in the 1880s, was just begin-ning to gain momentum in theNorth. Distinctly Italianate is thefenestration, featuring both round-ed and segmental arches with boldhoodmolds supported by orna-mental braces. The enclosure of theportico and the addition of the ped-iment and its three massive sup-porting arches create an entrancetrue to the vision of the originalAsher Benjamin design. Likewise,the remodeled octagonal tower issimilar in effect, although moregrand than Benjamin’s plan.

Unlike Bruce and Morgan’s 1892Brooks County remodeling of JohnWind’s almost identical 1860 court-house at nearby Quitman, this isnot a step forward into the archi-tectural future, but rather a decid-ed step backward into the past. Infact, if we disregard the delicate

arched fenestration, the effect ofthe 1885 remodeling created agreater likeness to AsherBenjamin’s original 1827“Elevation for a Courthouse.”Perhaps this historical focus wasmore in tune with the mood inThomasville in 1885 than any mod-ern messages.

.Just as Thomasville’s 1885courthouse remodeling was com-pleted, two magnificent resorthotels were erected, marking theperiod of the town’s fullest flower.Mild winters and soft Southern airshad made Thomasville a popularwinter resort with wealthyNorthern vacationers, and theseenormous facilities, the MithchellHouse and the Piney Woods,added substantial elegance to theattractive natural scene. Both weredesigned by New York architect J.A. Wood, who would later go on todesign the Oglethorpe Hotel inBrunswick and Henry B. Plant’sfabulous 511-room Tampa BayHotel completed in 1891.

Through it all, Thomasville’spopulation remained rather staticreporting about 5500 residents in1890 and just above 6500 20 yearslater.

Excerpted by Wilber W. Caldwell,author of The Courthouse and theDepot, The Architecture of Hopein an Age of Despair, A NarrativeGuide to Railroad Expansion andits Impact on Public Architecturein Georgia, 1833-1910, (Macon:Mercer University Press, 2001).Hardback, 624 pages, 300 photos,33 maps, 3 appendices, completeindex. This book is available for$50 from book sellers or for $40from the Mercer University Pressat www.mupress.org or call theMercer Press at (800) 342-0841inside Georgia or (800) 637-2378.

From reality TV police

and court dramas to

learning 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.

Each year since 1993, when

Howard initiated the program in

Georgia, fifth graders from

Arkwright, Dean Rusk, Mary

McLeod Bethune, Peyton Forest,

Venetian Hills and, this year,

Benteen Elementary Schools are

introduced to the workings of the

criminal justice system. They

become the actors in a mock trial

competition, and the youngsters

who give their all to the project are

taken on a whirlwind trip to

Washington, D.C.

Once a week for 10 weeks, theyoungsters are immersed in the

law by assistant district attorneysas part of their social studies class-es. They are taught the principlesand values that underlie our crim-inal justice system—a basicrespect for individual rights andrespect for the common good.They also learn, as any goodlawyer must, how to think critical-ly, analyze facts and speak beforean audience. Then, they’re readyfor the mock trial. The DistrictAttorney’s Community AffairsDirector Jada Dawkins says, as theweeks pass, you can see theremarkable growth in the stu-dents. “It is as rewarding for us,”Dawkins says, “as it is for them.”

On trial day, the students serveas prosecutors, defense attorneys,defendants, witnesses, victims,jurors and the judge. This year’scompetition took place in May atthe Fulton County Courthouse in

downtown Atlanta. Members ofthe Fulton County DistrictAttorney’s staff judged the compe-tition, as in years past. For DeanRusk Elementary School studentMalik Caldwell, who won a trophyfor his mock trial work, that part ofthe program was “totally awe-some.”

The reward for the students’enthusiasm, hard work and perse-verance is an all expense paid tripto the nation’s capital. Judging bythe comments of those who trav-eled to Washington this year, thatalone is incentive to do well. “Thetrip to Washington was fun,” saysNgoc Vu of Dean Rusk Elem-entary. “I learned about FrederickDouglass and how he learned toread all by himself and how hefought for what he believed in.”Peyton Forest student KatariFannin says, “It was fun visiting


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

GBJ feature

Fulton County District Attorney Paul Howard sends Legal Lives studentsoff to Washington, D.C.

the National Zoo and seeing all thedifferent animals.”

The competition is tough. Thestudents who are selected to makethe trip aren’t judged solely ontheir mock trial performance. Theymust demonstrate commitment toProject Legal Lives by consistentparticipation in the classes, com-pleting homework assignmentsand exhibiting exemplary behaviorin and out of class. Five studentsfrom each school are chosen tomake the trip. Some of the fifth-grade teachers accompany the stu-dents to Washington as chaper-ones. Most of the money for theprogram comes from a Local LawEnforcement Block Grant throughthe U. S. Justice Department. TheFulton County District Attorney’soffice provides the balance.

And who wouldn’t be excitedabout a four-day excursion to thenation’s capital?

The young people will tell you itwas exhausting, yet exhilaratingand exciting. This year from June 3-6, they toured the renownedSmithsonian Museum and the Airand Space Museum and visited thehome of writer and orator FrederickDouglass on the African-AmericanHeritage tour. On Capitol Hill, theywere greeted by Georgia Congressmembers John Lewis, a civil rightshero, and David Scott.

The goal of Project Legal Lives issimple. It is to familiarize these

young people with the law and howthe legal system works in order tokeep them from winding up on thewrong side of the system. AsHoward puts it, “I truly believe thatone of the Legal Lives students willsomeday sit on our nation’s SupremeCourt. I believe they will all becomebetter citizens. It is important for myoffice to continue to play an impor-tant role in this process.”

The students may be too youngto realize the full importance oftheir participation in such a pro-gram, but they do know the experi-ence is meaningful and fun. ForTakeria Michelle Nash ofArkwright Elementary, ProjectLegal Lives was life changing. In aletter of gratitude, she wrote,“Thank you for all you have done

for me. I really appreciate the hos-pitality. I have really had a goodtime. You have set a new goal forme to reach.”

And that, says Howard, is whatit’s all about.

Lyn Vaughn is actingdirector of public rela-tions in the office ofFulton County DistrictAttorney Paul Howard.She hosts the news

magazine show Inside Dekalb onDekalb County TV channel 23 andwrites feature articles for the newhome décor magazine, LivingSpace. Lyn has worked as abroadcast journalist in the Atlantamarket since 1983, most notablyat CNN Headline News from 1984to 1998.

October 2004 55

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.

Legal Lives Students sit on the steps of the U.S. Capitol with CongressmanJohn Lewis.

KUDOSK. Martin Worthy, a retired partner of Foley &Lardner in Washington, D.C., received the 2004Distinguished Service Award from the AmericanBar Association’s taxation section. Worthy has helda number of leadership roles in the ABA’s tax sec-tion and in the American College of Tax Counsel.The award is the highest given by the section.

The American Health Lawyers Association, thenation’s largest educational organization devotedto legal issues in the health care field, listedMcGuireWoods LLP as seventh in the number oflawyers in the firm (36) who belong to the AHLA.McGuireWoods’ health care department repre-sents three of the largest health care systems in theUnited States, two of the 10 largest surgery centercompanies in the country, and two of the sixlargest dialysis facility companies in the nation.

Earnhart A. Spencer Jr. of Powell, Goldstein,Frazer & Murphy LLP led a group of nineRoanoke College students on a three-week educa-tional trip to Ghana. In addition to attending lec-tures at the University of Ghana at Legon, the stu-dents learned Ghanaian history and governmentfirsthand by visiting various historical, culturaland political sites. The group also had the oppor-tunity to participate in an International Habitat forHumanity project in the township of Assin Fossu.Spencer served as the instructor for a course onGhanaian political history and comparative con-stitutional law, a mentor for the students and achaperone on various educational excursions.

Lenny Panzitta of Hunter Maclean and his wife,Karen, a physician with Radiology Associates ofSavannah, recently won the $5 million Lotto Southjackpot. The Panzittas are strong supporters of theHOPE Scholarship program; they purchase a $50Lotto South ticket every five weeks. They rarelybroke even until this win, which netted them $1.7million after taxes. They intend to put most of themoney into the bank and use the rest to fund busi-ness ventures.

The Executive Awards Committee ofthe National Republican Congress-ional Committee designated RichardW. Wolfe as the 2003 GeorgiaBusinessman of the Year. Wolfe waspresented with the award at a ceremo-

ny in Washington, D.C. in April. Wolfe is a memberof the NRCC Business Advisory Council and wasnominated to serve as one of Georgia’s voting dele-gates at the 2004 NRCC Tax Summit.

Kilpatrick Stockton LLP announced that ShyamReddy, an attorney in the firm’s corporate practicegroup, was selected for the prestigious L.E.A.D.Atlanta Class of 2005. L.E.A.D Atlanta is a leader-ship initiative for young professionals. Only 36 indi-viduals were chosen out of nearly 100 applicants.

Tyrone C. Means, of Thomas,Means, Gillis & Seay, P.C., wasnamed a member of the FellowsProgram of the Alabama LawFoundation. The program honorslawyers who have been members of

the Alabama State Bar Association for more than10 years and who have demonstrated outstandingdedication to their profession and their communi-ty. Fellows must be nominated by a colleague, andthey are limited to one percent of the total barmembership.

Janet E. Hill, of Hill & Beasley, LLP, became pres-ident of the National Employment LawyersAssociation at its annual convention. NELA isexclusively comprised of lawyers who representindividual employees in employment-related mat-ters. It has more than 3,000 members, includingstate and local affiliates.

Brent Wilson, a partner with Elarbee, Thompson,Sapp & Wilson, was inducted into the College ofLabor & Employment Lawyers during the ABAAnnual Meeting in Atlanta. The college consists ofnearly 600 of the top labor and employmentlawyers from across the country with at least 20years of distinguished experience in the labor andemployment field. There are 14 current membersfrom Georgia.

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,announced that Margaret H. Campbell wasselected as a fellow of the College of Labor andEmployment Lawyers. Election as a fellow is thehighest recognition of sustained outstanding per-formance in the profession. Ogletree Deakins nowhas 18 fellows in the college—the most of anylabor and employment law firm.

Jim Messer, a partner with FonvielleLewis Foote & Messer inTallahassee, Fla., was elected to theBoard of Directors of the Academyof Florida Trial Lawyers andreceived the Silver Eagle Award for

his service to the academy.


Benc

h&

Bar

Arnall Golden Gregory LLP attorney BryanBockhop was named vice chair of the AmericanIntellectual Property Law Association’sEmerging Technologies Committee. He willassume this role during the annual AIPLA meet-ing in October. The committee is charged withinvestigating new technologies and providingthe AIPLA with input and educational programsrelating to new legal issues arising from emerg-ing technologies. In addition, Marva JonesBrooks was selected as chair-elect of theNational Conference of Bar Examiners board.She will become chair in August of 2005. TheNCBE works with various state supreme courts,state bar examiners organizations and AmericanBar Association committees to develop, maintainand apply reasonable and uniform standards ofeducation and character for eligibility for admis-sion to the practice of law.

Jessica J. Harper, a shareholder with Bodker,Ramsey, Andrews, Winograd & Wildstein, P.C.,was named “Volunteer of the Year” by theGeorgia Association for Women Lawyers. This isthe first time GAWL has recognized one of its ownmembers for the award. Harper was selected frommore than 7,000 members for the honor. Sheserves on the organization’s board as vice presi-dent of special events.

The State Bar of Georgia’s Young LawyersDivision received special recognition duringthe ABA’s annual meeting earlier this year inAtlanta. The YLD received first place in thenewsletter category and second place in thecomprehensive category. Additionally, the YLDreceived special recognition for its Women inthe Profession Pro Bono Fair and for its Womenin the Profession Lunch & Learn Programs. TheYLD also received a certificate of performancefor the Minorities in the Profession SummerPicnic.

ON THE MOVE

In AlpharettaRandolph H. Houchins was recently named vicepresident and general counsel of CellnetTechnology, Inc., and its affiliated companies.Cellnet is a provider of wireless automated meterreading and distribution automation productsand services for the utility industry. Their head-quarters are located at 30000 Mill Creek Ave.,Suite 100, Alpharetta, GA 30022; (678) 258 1500;Fax (678) 258 1686; www.cellnet.com.

The Newman Law Firm announced that David W.Adams joined the firm. He will continue to prac-tice in the area of catastrophic injury and wrongfuldeath. The office is located in the Park Plaza build-ing, Suite 150, 178 South Main St., Alpharetta, GA30004; (678) 205-8000; Fax (678) 205-8002.

Ford & Harrison announced that ChristopherButler, Jeffrey Hackney and Jermaine Walkerjoined the firm as associates in the Atlanta office,located at 1275 Peachtree St. NE, Suite 600, Atlanta,GA 30309; (404) 888-3800; Fax (404) 888-3863.

Powell, Goldstein, Frazer & Murphy LLPannounced that Charles L. Warner joined thefirm’s Atlanta office as of counsel in its intellectualproperty development and protection practice.Warner is an electrical engineer and has served inpositions at Texas Instruments and with the U.S.Air Force Civil Service. The firm is located at 191Peachtree St. NE, 16th Floor, Atlanta, GA 30303;(404) 572-6600; Fax (404) 572-6999.

Nations, Toman & Nutter LLPannounced that Charles K. McKnightJr. joined the firm as a partner, and thefirm will now be known as Nations,Toman, Nutter & McKnight LLP.McKnight was a partner at King &

Spalding. He will continue to represent plaintiffsand defendants in contract, fraud, business tort andreal estate disputes. The firm is located at Suite 1550,Tower Place, 3340 Peachtree Road NE, Atlanta, GA30326; (404) 266-2366; Fax (404) 266-2323.

Troutman Sanders LLP announced that Lara B.Robinson joined the firm’s compensation andemployee benefits group as a partner and practicegroup leader. The group handles all aspects of com-pensation and benefits law, design, consulting andapplication. Troutman Sanders’ Atlanta office islocated at 600 Peachtree St. NE, Suite 5200, Atlanta,GA 30308-2216; (404) 885-3000; Fax (404) 885-3900.

George W. Jordan III joined Merchant & Gould asan associate in its Atlanta office. He practices intel-lectual property litigation with a focus on patentand computer/electronics disputes. The firm islocated at 133 Peachtree St. NE, Suite 4900, Atlanta,GA 30303; (404) 954-5100; Fax (404) 954-5099.

Jamilia N. Smith joined Banta Immigration LawLtd. as an associate specializing in business immi-gration law. The firm is located at 1175 PeachtreeSt. NE, 100 Colony Square, Suite 700, Atlanta, GA30361; (404) 249-9300; Fax (404) 249-9291.

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Carlton Fields, PA, opened a new office inAtlanta, their seventh nationwide. WayneShortridge joined the firm and will serve as theAtlanta office’s managing shareholder; he was amanaging partner at Powell Goldstein. The newoffice is located at One Atlantic Center, 1201 WestPeachtree St., Suite 2500, Atlanta, GA 30309; (404)815-3400; Fax (404) 815-3415.

The Atlanta office ofMcGuireWoods LLPannounced two addi-tions to the firm’s laborand employment depart-ment: Eric L. Barnum as

a partner and Halima Horton as an associate. Thefirm is located at The Proscenium, 1170 Peachtree St.NE, Suite 2100, Atlanta, GA 30309-7649; (404) 443-5500; Fax (404) 443-5599.

Schiff Hardin LLP added Michael Wolensky andEthan H. Cohen as partners in their Atlanta office.Both will be members of the firm’s market regula-tion and general litigation groups. Schiff Hardin’sAtlanta office is located at 1230 Peachtree St., 18thFloor, Atlanta, GA 30309-3574; (404) 806-3800; Fax(404) 806-3801.

Needle & Rosenbergannounced that AnthonyJ. DoVale Jr. and BrianGiles joined the firm,DoVale as an associate inthe mechanical patent

practice group and Giles as a science advisor in thebiotechnology practice group. The firm is located atSuite 1000, 999 Peachtree St., Atlanta, GA 30309-3915;(678) 420-9300; Fax (678) 420-9301.

Fredric Chaiken and Stephen R. Klorfeinannounced the opening of their new firm, ChaikenKlorfein, LLC. Their practice areas include businesslitigation, corporate governance, non-compete andconfidentiality agreements, trademark and patentinfringement, estate litigation, domestic relations,personal injury, tax planning, estate planning, merg-ers and acquisitions, probate, and general businessrepresentation. The firm is located at 7000 PeachtreeDunwoody Road, Building 9, Suite 300, Atlanta,Georgia 30328; (770) 668-5454; Fax (770) 668-1677.

Jefferson D. Blandford joined ChamberlainHrdlicka as a shareholder in the firm’s litigation prac-tice. He focuses on labor and employment law,including ERISA, and commercial litigation.Blandford was formerly a partner with Ford &

Harrison, LLP. Chamberlain Hrdlicka’s Atlanta officeis located at 191 Peachtree St. NE, 9th Floor, Atlanta,GA 30303-1747; (404) 659-1410; Fax (404) 659-1852.

Ronald T. Coleman Jr. joined thefirm of Parker Hudson Rainer &Dobbs LLP as a partner in its litiga-tion group. His practice will continueto focus on complex business litiga-tion, particularly in the areas of intel-

lectual property, franchise and trade regulation lit-igation. The office is located at 1500 Marquis TwoTower, 285 Peachtree Center Ave. NE, Atlanta, GA30303; (404) 523-5300; Fax (404) 522-8409.

Chitwood & Harley LLP announced that DavidWorley joined the firm as a partner; David Bainand Nikole Davenport became partners; RobertKahn joined the firm as of counsel; JamesEvangelista joined the firm as counsel; and JamesWilson, Joseph Helm and Leslie Toran joined thefirm as associates. The firm is located at 2300Promenade II, 1230 Peachtree St. NE, Atlanta, GA30309; (404) 873-3900; Fax (404) 876-4476.

Corliss Scroggins Lawson, a partnerwith Lord, Bissell & Brook LLP, wasnamed partner-in-charge of the firm’sAtlanta office. Lawson’s practicefocuses on insurance coverage litiga-tion, environmental liability, premis-

es liability, products liability, construction/designdefects, credit fraud, employment and general con-tracts. The office is located at 1900 The Proscenium,1170 Peachtree St. NE, Atlanta, GA 30309; (404)870-4600; Fax (404) 872-5547.

In DecaturJohn E. Connerat and Tim L. Fallaw recentlyopened the law firm of Connerat & Fallaw LLP inDecatur. The firm focuses on real estate law with aparticular emphasis on residential real estate trans-actions and closings. The firm is located in theCommerce Plaza building, 755 Commerce Drive,Suite 802; Decatur, GA 30030; (404) 638-5240; Fax(404) 638-5241; www.lawcf.com.

In DuluthMandy L. Miller has become an associate withPrebula & Associates LLC, a law firm in Duluth thatfocuses primarily on civil litigation. Her servicesinclude assisting clients in the areas of family law,employment law, personal injury, business law andcommercial litigation. The firm is located at 3483Satellite Blvd., The Crescent Building, Suite 200,Duluth, GA 30096; (770) 495-9090; Fax (770) 497-2363.


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DoVale Giles

Barnum Horton

Thompson & Slagle, P.C., announced thatMichael J. Hannan III has joined the firm as ofcounsel, where he will continue his trial andappellate practice in the areas of catastrophic tortsand personal injury, first party insurance, ERISA,professional liability, commercial, class action andemployment litigation. The firm is located at12000 Findley Road, Suite 250, Duluth, GA 30097-1483; (770) 662-5999; Fax (770) 447-6063.

In Jacksonville, Fla.Christopher L. Casey, formerly of J. Hue Henry,P.C., in Athens, Ga., joined the Jacksonville office ofHinshaw & Culbertson, LLP. Casey remains anactive member of the State Bar of Georgia. The firmis located at 50 N. Laura St., Suite 1800, Jacksonville,FL 32202; (904) 359-9620; Fax (904) 359-9640.

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BarThe new chair of the Formal AdvisoryOpinion Board is James W. Friedewald ofEdwards, Friedewald & Grayson in Marietta.He has been a member of the board since 2000.Professor Jack L. Sammons Jr. of MercerUniversity’s Walter F. George School of Lawwas re-elected as vice chair. He has served inthat capacity for the past 3 years. Sammonshas been a member of the board since 1996.Michael Bagley, of Drew, Eckl & Farnham inAtlanta, served as chair for the last three years.He will continue to serve on the board. TheState Bar of Georgia would like to thank all themembers of the Formal Advisory OpinionBoard for their service and dedication.

From the South Georgia OfficeWorking for you

South Georgiarepresentatives ofthe MembershipServices Committeemet in the Tiftonoffice to join othercommittee membersaround the state byconference call. Thepurpose of the meet-ing was to identifystrategies that en-courage members totake advantage ofvarious State Barmember resources.

To help generate ideas, the committee is seeking feedback from all members. Pleasevisit www.gabar.org/Survey_member_benefits.asp to take the member benefits survey.

In Other NewsDougherty 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, youmay send a card to: P.O. Box 1827, Albany, GA 31702.

(Left to right) Michael Turner, Tifton; Gary Allen, Pelham; GregSowell, Tifton; Norman Crow, Sylvester; Lester Castleberry,Moultrie; Judge Gordon Zeese, Albany; and Walter Elliott, Valdosta.

Know the Rules AboutProviding Additional Law-Related Services to ClientsBy Paula Frederick

W e’ve had a bit of luck,”

your clients Jan and Joey

Kravitz announce as they

enter your office. “A relative who Jan never

even met left her a bundle. As soon as his

estate settled and the money came through,

we figured we’d better have you revise those

wills you did for us a few years ago.”

A quick update on the Kravitzes’ situationleaves you shaking your head. “Jan and Joey,I’m surprised that you haven’t hired a pro-fessional to advise you how best to investyour inheritance,” you say. “I’ve onlyglanced at the information you brought me,and already I can tell that you’re not takingfull advantage of a number of tax creditsavailable to you.”

“We’re wary of trusting anyone with our nestegg,” Jan explains. “Remember that unfortunateexperience we had with the phony ‘investmentadviser’ who turned out to be wanted in fivestates? Joey lost half his retirement savingsthrough that fraudster’s shenanigans.”

“Since then we’ve been managing our ownfinancial affairs,” Joey adds. “I never thought Iwould turn over control of my finances to any-one again, but I’ll admit I’m in over my headwith this inheritance. Maybe you could helpus! Is there anyone you could recommend?”

“As a matter of fact there is,” you announce.“I’m now a Certified Financial Planner—I’vebeen working on getting certified for ages, andfinally completed all the requirements. I’mpart owner of a company that would bedelighted to provide you with professional,ethical advice on managing your assets.”

One of your law partners raises concernabout this encounter when you describe it tohim later. “Are you sure you haven’t createda conflict of interest with the Kravitzes?” heasks. “I sure would hate to lose their legalbusiness because you were trying to steerthem to your financial planning company.”

“It’s all aboveboard and perfectly ethi-cal,” you assure your partner. “There’seven a Bar rule that deals with it. Rule5.7—Responsibilities Regarding Law-Related Services.”

You are right! Rule 5.7 allows a lawyer toprovide law-related services to a client. Thelawyer is subject to the Georgia Rules ofProfessional Conduct with respect to theadditional services unless they are offeredin a way that is clearly separate from thelegal services.

As with many other ethics rules, Rule 5.7and its comments demonstrate a preferencefor disclosing information and allowing theclient to make an informed decision. The con-cern with this particular rule is that, unlessinformed otherwise, clients may assumeancillary services carry all of the usual pro-tections of the client/lawyer relationship.

Providing law-related services can benefityour clients by providing them with con-venient, reliable help in a variety of areas.Before you develop a plan to offer law-relat-ed services, remember to contact the EthicsHelpline at (404) 527-8720 to discuss yoursituation with a lawyer in the Office of theGeneral Counsel.

Paula Frederick is the deputygeneral counsel of the State Barof Georgia.


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

DISBARMENTS/VOLUNTARYSURRENDERRichard Kenneth CappsDouglasville, Ga.

On June 28, 2004, the Supreme Court ofGeorgia accepted the Petition for VoluntarySurrender of License of Richard KennethCapps (State Bar No. 108858). Capps con-ducted two real estate closings in October2003 but failed to pay taxes or insurance,causing the properties to be subject to fore-closure. The client had to pay additional feesto bring his taxes and insurance up to date.

In another matter Capps represented aclient in the purchase of a home. The clientwas due a refund. Capps wrote a check fromhis operating account, which was returnedfor insufficient funds, and then wrote a checkfrom his trust account, which was not hon-ored. Capps never refunded the money. Heclaimed he paid the title insurance, butCapps’ agency had been suspended, thus,the title company had no obligation for theinsurance. Capps subsequently reimbursedthe client for the amount on the settlementstatement. Additionally, four more checksissued in March 2003 were trust accountoverdrafts.

Finally, Capps closed the sale of a thirdclient’s house but failed to send the payofffunds of over $93,000 to the bank.

Eric Vann RossAtlanta, Ga.

Eric Vann Ross (State Bar No. 615128) hasbeen disbarred from the practice of law inGeorgia by Supreme Court order dated July12, 2004. Ross settled a case for $20,000 and dis-missed it with prejudice without his client’s

consent. He deposited the funds into his bankaccount and told the client the case had beensettled for $18,000. Ross has not accounted forthe funds nor delivered them to his client.

Joseph Mitchell WilliamsMacon, Ga.

Joseph Mitchell Williams (State Bar No.762969) has been disbarred from the practiceof law in Georgia by Supreme Court orderdated July 12, 2004. In June 2002 a client paidWilliams $350 to file a petition for a namechange. Although Williams reassured theclient that he was handling the matter, he didnot do any work on the client’s behalf. InSeptember 2002 the client demanded hermoney back, but Williams failed to return themoney or paperwork.

In October 2000 Williams was paid $1,000to handle a civil matter. In February 2001Williams filed a statement of claim in magis-trate court but failed to serve the defendantor perform any additional work. Williamsfailed to return the fees or file.

In a third matter Williams was paid $4,000to represent a client in a criminal matter.Williams negotiated a guilty plea without theclient’s permission. Williams failed to appearin court on the client’s behalf on three sepa-rate occasions.

SUSPENSIONSJohn H. ArmwoodMarietta, Ga.

John H. Armwood (State Bar No. 022545)has been suspended from practicing law inGeorgia by Supreme Court order dated July12, 2004, for a period of two years with con-ditions for reinstatement. Armwood waspaid $1,500 in September 2002 to represent a

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client against misdemeanorcharges. Armwood did not file anentry of appearance, did notrequest a preliminary hearing, anddid not respond to repeatedrequests for information about thecase. In December 2002, at therequest of the incarcerated client,the county public defender filed anentry of appearance on his behalf.

As a prerequisite to reinstate-ment, Armwood is required toreimburse any unrefunded portionof the $1,500 and to complete 12hours of Law Office Managementin an ICLE-approved program.

Jeffrey N. SchwartzMarietta, Ga.

Jeffrey N. Schwartz (State BarNo. 631020) has been suspendedfrom practicing law in Georgia bySupreme Court order dated July 12,2004, for a period of 18 monthsnunc pro tunc May 9, 2003. Betweenthe fall of 2001 and March 2003Schwartz accessed and deletedvoice mail messages left on thevoice mail of his former employer,an Atlanta law firm that dischargedhim in August 2001. Schwartzresigned his position at his currentlaw firm and voluntarily ceasedpracticing law on May 9, 2003.

INTERIM SUSPENSIONSUnder State Bar Disciplinary

Rule 4-204.3(d), a lawyer whoreceives a Notice of Investigationand fails to file an adequateresponse with the InvestigativePanel may be suspended from thepractice of law until an adequateresponse is filed. Since June 15,2004, four lawyers have been sus-pended for violating this Rule.

Connie P. Henry is the clerk of theState Disciplinary Board.


Lawyers and Legal Fees

State Bar

of Georgia

Consumer

LegalCareers

How to be aGood Witness

Juror’sManual

Patents,Trademarks &Copyrights

State Bar

of Georgia

Buyinga Home

AutoAccidents

Bankruptcy How to ChooseA Lawyer

State Bar of Georgia

ConsumerPamphletSeries

Divorce

62



Legal Rights of Nursing HomeResidents

62

State Bar

of Georgia

Consumer

Selecting a Nursing Home

62



Selecting aPersonalCare Home



Wills

The State Bar of Georgia’s Consumer Pamphlet Series is available at cost to Bar members, non-Bar members and

organizations. Pamphlets are individually priced at 25 and 75cents each plus shipping. Questions? Call (404) 527-8761.

Visit wwww.gabar.org/cps.htm ffor aan oorder fformand mmore iinformation oor ee-mmail [email protected].

The ffollowing ppamphlets aare aavailable:

Auto Accidents Â Bankruptcy Â Buying a Home Â Divorce Â

How to Be a Good Witness Â How to Choose a Lawyer Â Juror's

Manual Â Lawyers and Legal Fees Â Legal Careers Â Legal Rights

of Nursing Home Residents Â Patents, Trademarks and

Copyrights Â Selecting a Nursing Home Â Selecting a Personal

Care Home Â Wills

ConsumerPamphlet

Series

The Small FirmPaperless OfficeBy David L. Masters

T he paperless office exists today,

not as an abstract goal but as a real

possibility for virtually all small

firm attorneys. Your office can be paperless,

or nearly so. You won’t need a degree in

computer science. If you can’t afford a con-

sultant or live in an area without consultants,

don’t worry. The ideas here come from a

rural small firm practice and can be imple-

mented by anyone (they may or may not be

extrapolated to larger firms).

So what’s the catch? Making the transitionto a paperless office requires a shift in think-ing about how you, the lawyer, handle infor-mation. This is not a project to pass off toyour staff; you, the lawyer, will be workingwith paperless documents. There will still beplenty of paper passing through your office;until your clients and the lawyers outsideyour firm go paperless, they will continue todeliver information to you on sheets of paper(lots of paper). But, once you go paperlessand need to see a document that’s more thana few days old, it will exist in your office dig-itally to be viewed on your computer. That’sthe catch and the shift in thinking. You needto become comfortable with working withinformation on your computer rather than onpieces of paper. That’s where AdobeAcrobatTM comes in. Acrobat makes it possi-ble for you to work with information on your

computer in much the same way that youwork with pieces of paper.

The physical transition to a paperlessoffice requires hardware and software, someof which you may already have and someyou may need to purchase. The amount ofmoney you will have to spend to move to apaperless office depends in part on what youalready have and how elaborate you wantyour paperless office to be.

A Shift In ThinkingLawyers and law firms process informa-

tion, little more and little else. We receiveinformation from clients and other sources,we add information gained from researchand experience, and we deliver information.The information that lawyers deliver takesmany forms; it may be a pleading, an oralpresentation to a court, an opinion letter, or acontract, but in the end lawyers receive,process and deliver information.

Most of the information that comes intothe law office arrives in the form of paperdocuments. For that matter, most of theinformation output from law offices, yourwork product, goes out as some form of doc-ument. Taking a very simple and abstractview of the typical law office, there are threeprimary systems involved in processing doc-uments:n A document generation system;n A document copying or replication sys-

tem; and n A document retention or filing system.

Figures 1 and 2 on page 64 illustrate, withrough diagrams, how these systems work inthe typical law office. Notice that all docu-

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ments (whether incom-ing or outgoing) passthrough the copying orreplication system. Inthe typical office, a pho-tocopier acts as thecopying or replicationsystem. In the paperlessoffice, a scanner re-places the photocopier.Incoming documentspass through the scan-ner, rather than a pho-tocopier, producingdigital copies that arestored electronically.Outgoing documents,rather than beingscanned or photo-copied, are retained intheir original digitalformat and printed(converted) to PortableDocument Format(PDF) just like thescanned documents. Any paperless officewill depend on sometype of electronic filingsystems and a commit-ment to capture digitalimages of all incomingpaper. The file room inthe paperless law officeconsists of electronic fil-ing cabinets filled withfolders that containeverything found intraditional paper files. Think of ashared hard disk drive as the fileroom: the cabinets within the roomare large divisions on the disk, andwithin those cabinet-sized divisionsare folders for each client matter.Most client matter folders are fur-ther divided into subfolders to aidin organization and navigation.

Working with documents in dig-ital format requires a significantshift in thinking. But consider what

it will be like to have all documentsat your desk without rummagingthrough file cabinets or boxes.Think of all the paper you put infiles, because someday you mayneed it, only to never see it again.Consider the unpleasant process ofclosing those files and movingthem to storage. Recall the timesyou’ve gone to storage to retrieve asingle piece of paper. Now consid-er keeping all those documents in

electronic format,readily available ifneeded, and then clos-ing files by draggingthem from an activework directory to anarchive directory. Thisis the reality of thepaperless law office.

The PhysicalTransition

Once you’ve decidedto think paperless, thephysical half of thepaperless office be-comes manageable. Thephysical half consists ofthe hardware and soft-ware needed to convertpaper documents to dig-ital documents andstore, retrieve, workwith, and back up thosedigital documents.

The first item on thelist will be the scanner.There are many scan-ners on the market, butnot all are suitable forthe paperless law office.Inexpensive flat bedscanners generally lackan automatic documentfeeder (ADF). As aresult this type of scan-ner cannot processpaper quickly enough to

be useful. Desktop, egg-carton style,sheet fed scanners likewise are tooslow to provide much benefit. Thesedevices are convenient for individualusers to occasionally acquire imagesof documents without a trip to themain scanner. High speed sheet fedscanners are attractive, but lack theability to handle odd size docu-ments, books and magazines.

What you need is a scanner thatcombines the benefits of flatbed


Incoming Document

Photo Copier

Copy to Client Copy to File

Outgoing Document

Photo Copier

Copy to Client Copy to File

Original to Recipient

Figure 1

Figure 2

and sheet-fed models and has theability to acquire images at a rate ofat least 10 pages per minute (ppm).Scanners in this category start ataround $800 and the prices go upfrom there. Whether you realize itor not, two key pieces of your officeinfrastructure are rated on a pageper minute basis—your printer andphotocopier. Because the scannerin combination with a printer willreplace the photocopier, the pageper minute rating is a prime factorto consider. When shopping on thebasis of pages per minute, be sureto consider the capacity of the auto-matic document feeder (ADF). Ascanner that runs at 20 ppm with a25-page ADF will need constantattention. Next, consider your needto acquire color images. Also, con-sider the frequency at which youreceive and may need to imagedocuments printed on both sides ofthe page. Some higher-priced scan-ners come with a manual duplex-ing feature; some of the lowerpriced high speed scanners canhandle two sided documentsthrough software (feed the docu-ments through, acquire images ofside one, then turn the stack overand acquire images of side two, thesoftware then collates the pages).

Scanners, unlike photocopiers,are not stand-alone devices; scan-ners, like printers, must be connect-ed to a computer or local area net-work (LAN). The method of con-nection will have an impact on thespeed at which documents can bescanned and saved. There are basi-cally two options for connectingthe scanner to the computer:Universal Serial Bus (USB) andSmall Computer System Interface(SCSI). USB connections are gener-ally plug-and-play, while the SCSIconnection will likely require open-ing the computer to insert an SCSI

interface card. Both USB and SCSIcome in varying standards thattransmit data at different rates.There are advantages and disad-vantages to both connection sys-tems. Do some research, talk to aconsultant or a geek friend to seewhat will work best for you. Somescanners can be connected directlyto a local area network (LAN) byway of a builtin network interfacecard (NIC). These scanners, some-times referred to as “walk-up”models (because anyone can walkup and scan a document, much likeusing a photocopier), are usuallymore expensive.

Next, you will need an imagingapplication (you’re going to captureimages of all incoming documents).Once upon a time, the choice ofimaging applications was difficultand complex. Today, Acrobat hasbecome the standard for documentexchange and provides an easy wayto convert paper documents to digi-tal files. Acrobat provides goodimage acquisition capabilities, theability to perform optical characterrecognition (OCR) on the imageswhile retaining an exact replica ofthe scanned pages, a variety of easyto use annotation or commentingtools, and easy sharing with otherusers. Many state courts haveimplemented systems for filing doc-uments with the courts; documents

filed electronically are converted toPDF files (if not already in that for-mat). Current versions of Word andWordPerfect contain drivers to pub-lish word processing files to PDF.The federal courts are moving to anelectronic filing system, again usingthe PDF format. With courts usingPDF, it is the perfect standard foruse in your law office.

In addition to using Acrobat foracquiring images, this programmakes working with digital docu-ments easier than shuffling paper.Acrobat should not be confused withAdobe Reader; the latter being a freeprogram that anyone with anInternet connection can obtain andthat you can distribute freely withyour PDF document collections. Forexample, you can add bookmarksand sticky notes to image only files.If the files have a text background,you can highlight (pick your color,any color), underline and strike-through. PDF files with backgroundtext can be searched; image only filescannot be searched, but informationcontained in the document summaryor in attached notes will be includedin indexes of document collections.

As your new scanner begins tocapture digital images of all incom-ing paper, you will need a new setof filing cabinets to store all thosedocuments. These filing cabinetswill, of course, be electronic com-

October 2004 65

D. Jeff DeLancey, CPA, PCCertified Public Accountant/Certified Fraud Examimer

Forensic Accounting, Financial Investigations&

Litigation Support

Suite 250, 9 Lumpkin Street, Lawrenceville, GA 30045770-339-9556, 404-358-1060

www.jeffdelanceycpa.com [email protected]

ponents—typically hard diskdrives. Your filing cabinets shouldexist on a hard disk drive sharedacross a LAN.

How many filing cabinets willyou need? It depends, but as a gen-eral rule, when scanned at 300 dpi(dots per inch, a measure of resolu-tion), a single scanned page (8.5” by11”) requires storage space ofapproximately 50KB (kilobytes).This is an average and assumes theimage was acquired and stored as“black and white” or “line draw-ing,” not color or gray scale. A sin-gle drawer in a filing cabinet willhold approximately 10,000 pages.To store the same 10,000 pages elec-tronically requires 500MB(megabytes) of storage space. A sin-gle compact disc (CD-ROM, CD-R,or CD-RW), will hold 700MB, or theequivalent of 1.4 file cabinet draw-ers. An entire four-drawer filingcabinet (40,000 pages), thenrequires only 2GB (gigabytes).Although there are standardsissues yet to be resolved, prices forsingle layer DVD writers haveapproached the reasonable rangewith many under $200. A singlelayer DVD will hold 4.7GB, or theequivalent of two four-drawer fil-ing cabinets. 100GB hard diskdrives currently sell for less than$100; that’s the capacity of 50 four-drawer filing cabinets. If you thinkin terms of boxes, instead of filingcabinets, one box (15.5” x 12” x 10”)holds approximately 2,500 pages.Those same 2,500 pages requireonly 125MB of digital storage space.Five boxes of documents will fit ona single CD-ROM with room tospare. Even if the space required fora single page, scanned at 300 dpi,was doubled to 100KB, 10,000pages (one full file cabinet draweror four boxes), would require only1GB of electronic storage capacity.

The available space for digitaldocument storage continues togrow while prices continue todrop. Contrast that with the fixedphysical space for storing paperfiles and the continual increasingcosts of that storage, and you’llhave even more reason to move toa paperless office. A standard fil-ing cabinet is 18” wide by 24”deep. Allowing 18” to open thedrawers and another 18” ofhuman space increases the depthto 60”. In other words, a standardfiling cabinet has a footprint of1.5’ x 5’ or 7.5 square feet. Tobuild that square footage, at $150per square foot, will cost $1,125(then you have to heat it, insure it,pay taxes on it, etc.). Renting thesame footprint at $15 per squarefoot will cost you $112.50 per year(plus utilities, insurance, etc.).Would you rather pay the cost fordigital storage or continue ware-housing paper files?

If you commit your files to thedigital realm, you can and mustback them up. Think of this as abenefit, not a drawback. If yourpaper-based office was severelydamaged or destroyed you wouldhave not backup copies of yourdocuments. But with paperless filesyou can have as many copies asyou want in as many separate loca-tions as you want. The choices forbackup systems are beyond thescope of this article. However,regardless of the system you chose,there are three rules to follow. n Backup rule number one:

Perform full backups daily; donot rely on differential or incre-mental backups.

n Backup rule number two: Keepone or more fairly current fullback ups off site.

n Backup rule number three: Testthe process to make sure that

backups are actually beingmade and that you can in factrestore files.

The Digital FilingSystem

To complete your paperlessoffice, we return to a mostly mentalaspect of the process: designingand implementing a documentmanagement system. You have adocument management systemnow—you use it to file and retrievepaper documents. Your currentsystem probably sounds somethinglike this: every client matter has afile, and somewhere you have anindex of all those files (so if youwant to find the Smith file andcan’t remember where in the filingsystem it resides, you go to theindex, find the file identifier [i.e., afile number] and then locate thefile). Now you knew the documentyou wanted was in the Smith file,great, but what if the Smith filecontains 5,000 or 10,000 or morepages? At this point, the paper fil-ing system starts to break down.How many sub-folders are youwilling to create, and how do youkeep track of them? Unless youhave an absolutely huge number offiles, or medium number of reallyhuge files, then the paper file sys-tem can be replicated, refined andexpanded in the digital world.

As high tech as scanning and print-ing to PDF may sound, the documentmanagement system adheres to anold-fashioned filing cabinet metaphor.The filing cabinet exists in virtualspace (on a computer hard disk driveshared over a local area network). Thefiling cabinet has a name, “Work”(you may want separate digital filingcabinets for Closed Files,Administrative Files, etc.). Each com-puter on the network links to the filingcabinets by mapping one or more net-


work drives, e.g., X:\Work. Now eachdesktop has access to the filing cabinet“Work.” Within the filing cabinet arefolders, one for each client, e.g.X:\Work\Smith. If a client has severalmatters then that client folder has asubfolder for each distinct matter, e.g.,X:\Work\Smith\Corporation andX:\Work\Smith\Wills. Within eachclient matter folder are folders for var-ious types of documents, such ascorrespondence, pleadings, expensereceipts, research, privilege, etc.

A simple system for electronicfiling can be implemented andstandardized by creating sets ofpredefined subfolders for varioustypes of matters. For example, cre-ate one set of empty folders for liti-gation matters and another fortransactions. When you open anew matter, simply highlight thedesired folder set, then select all(Control-A), copy, then paste thisfile structure onto the folder creat-ed for the new matter. Now, allmatters of a given type have thesame folder structure. You will findthat this filing system can providefar more categorization than whatyou have been using in the paperworld. You can add as many sub-folders you want, then simplydrag-and-drop the contents fromone folder to another. File reorgani-zation can’t be much easier.

The final piece of the documentmanagement system has to do withhow you name the files within thefolders. Follow three simple rulesand your document managementsystem will be complete and beau-tifully organized. n Rule 1: Begin the file name with

the date of the document inreverse year-month-day order(yymmdd). By inserting the dateat the beginning of the file name(after the path, e.g.,X:\Work\Smith\040819) all

documents in a given folder aresorted in year-month-day order.As simple as this may sound,using the document date as thefirst part of the file name ishugely important.

n Rule 2: After the date, use a let-ter or letters to identify theauthor or party that generatedthe document. For pleadings useone or more letter to identify theparty that served the document.For correspondence use theauthor’s initials followed by theinitials of the recipient. That waywhen you look in the correspon-dence folder you will see all ofthe correspondence arrangedchronologically with an indica-tion of who wrote the letter andto whom each was written (e.g.,X:\Work\Smith\040819 DLMNGT).

n Rule 3: After the initials that iden-tify the author or party (and in thecase of correspondence the recipi-ent) add a few descriptive termsthat describe the document (e.g.X:\Work\Smith\Corres\040819DLM NGT ContractEnclosed).If you want a system that index-

es all of your files so that you canrun a computer search to find theSmith lease, or that motion to com-pel a psychiatric examination, youalready have it—it’s calledWindows Explorer. You can useWindows Explorer to find filescontaining specific words. Keep inmind that image-only PDFs are justthat; images only, just digital pho-tocopies of paper documents.Image-only files contain no textcharacters and as a result cannot beindexed or searched. Image-on-textfiles have an exact image of thehard-copy with text behind theimage and can be searched. Image-on-text files are created by printingto PDF or by running a PDF image

only file through an optical charac-ter recognition (OCR) application.Acrobat document summaries andnotes are included in the informa-tion searched by Explorer.

ConclusionAny office can become a paper-

less office. Just keep in mind thatsetting up and operating a paper-less office requires a shift in think-ing. Anyone can make the shift;what are you waiting for?

David L. Masters is a solo practi-tioner from Montrose in rural west-ern Colorado. He practiced in asmall firm setting for 13 years priorto moving to solo practice inFebruary 2000. His practice focuseson real estate and business matters,transactions and litigation, andincludes personal injury, civil rights,and employment law matters, forboth plaintiffs and defendants.

October 2004 67

Celebrating the Role ofRural Lawyers inDelivering Civil JusticeBy Mike Monahan

Into the office walks a young lady with

two small children in tow. The secretary

smiles and acknowledges her by her

first name before asking about the reason for

the visit. The two children wander off to a cor-

ner and spread out with some toys. The young

mother nervously proceeds to give the secre-

tary some facts as the lawyer walks out to

greet the young woman. They know each

other—she was in school with the lawyer’s

younger sister. He ushers her into his office.

This is pro bono client number one for the day.

Several more people will likely walk in the

door or phone for free advice before the busi-

ness day ends. Each of that day’s new legal

problems can be tracked to a few minutes’

drive from the lawyer’s home, office, church

or his children’s school. It’s a small town.

This year the State Bar boasts a member-ship of 34,897 lawyers, 27,900 of whom areactively practicing law. Two-thirds ofGeorgia’s lawyers now work in the five-county metro Atlanta area, but only a minor-

ity of the state’s lawyers shoulder the work ofproviding access to justice in the otherGeorgia, the remaining 154 counties. Yearafter year, individual lawyers in the otherGeorgia demonstrate a surprising commit-ment to providing legal services to the poor.

The work of rural lawyers is challenging inways that are different from those of the bigcity lawyer, different even from solo practi-tioners in a large urban environment. Over 70percent of Georgia’s poor live outside thefive-county metro Atlanta area. Small townlawyers are far, far outnumbered by theapproximately three-quarters of a millionpoor who desperately need their services.Additionally, in areas around Dalton,Columbus and elsewhere, solo and small-firm practitioners are interfacing with ever-growing numbers of special populations.Latino and Asian-Pacific clients with newand complex issues are joining the home-grown population in the long line at thelawyer’s door.

“The many and well-chronicled problemsof the urban poor shouldn’t blind us to thedesperate conditions of the many poor peo-ple living in rural areas,” says William G.Paul, former president of the American BarAssociation.1 The poverty rate for the fivecore counties of Atlanta ranges from 5.6 per-cent in Gwinnett to 13.8 percent in Fulton.2Outside Atlanta, the poverty population per-centage climbs significantly, ranging from 3.8percent for close-in Fayette County all theway up to 28.6 percent in Clay County in


Pro

Bono

southwest Georgia. Eighty-eight ofGeorgia’s counties have povertypopulations exceeding 15 percentof the local population. Forty-oneof these counties have povertypopulations exceeding 20 percent!These numbers and numerousanecdotal lawyer stories indicatethat the practice of many rurallawyers consists of a steady diet ofpro bono (criminal and civil),reduced fee and a constant flow offree advice. Rural lawyers serve onthe front lines in their own uniquewar on poverty.

With three times as many pooroutside Atlanta as in Atlanta, theneed for free or reduced-fee civillegal services beyond theperimeter is reaching a criticallevel. Some would say thatwhen, as now, only 20 percent ofthe poor who have a legal needever obtain a lawyer, the criticallevel has already been reached.That’s probably true. And whilethe 20 percent ceiling for legalservices applies to Atlanta aswell, an increasing network ofquality social service providersand large law firm pro bono proj-ects provides a safety valve thatsimply does not exist in desper-ately and persistently poor areasof rural Georgia.

Rural lawyers participate incoordinated pro bono programsoperated by Georgia Legal ServicesProgram. On average, volunteerlawyers step up to the plate to han-dle about 1,100 cases each year, themajority of which are resolved incourt or in administrative forums.Small-town lawyers also help withCLE programs covering povertylaw issues. And, as if they weren’tfocused enough on all the reducedfee and pro bono work they do,rural lawyers contribute financiallyto the rural legal services programin a participation rate that matchesthe Atlanta Legal Aid’s million-dollar campaign. While solo andsmall firm lawyers outside Atlantacan’t match the big league firmcontributions in pure dollars, rurallawyers do what they can.

Be it Tifton, Brunswick, Ellijay orPerry, lawyers face a tremendousdemand for their services. Probono is an integral part of theirdaily practice for which theyshould receive more praise. It’shigh time to celebrate the role ofGeorgia’s rural lawyers in provid-ing access to justice.

Mike Monahan is the pro bonodirector for the State Bar ofGeorgia.

Endnotes1. Contributions of Public Spirited

Lawyers,http://www.abanet.org/pub-liced/lawday/talking/contribu-tions.html, August 10, 2004.

2. U.S. Census estimates for 2000,http://www.census.gov/cgi-bin/saipe/saipe.cgi.

October 2004 69

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.

Sections’ Bar Year off toSuccessful BeginningBy Johanna B. Merrill

On July 30-31, the Environmental

Law Section met at the King &

Prince Resort and Spa on St.

Simons Island for the annual Environmental

Law Institute. This annual seminar offers sec-

tion members an opportunity to catch up on

recent developments in environmental law and

to reacquaint themselves with environmental

attorneys throughout the state.

The American Bar Association descendedupon Atlanta in early August for their 2004Annual Meeting. While the city was filledwith attorneys from across the country, someof the State Bar’s sections welcomed themwith events. On Aug. 6, the AdministrativeLaw Section, along with the GeorgiaAssociation of Administrative Law Judgesand Hearing Officers, sponsored a luncheonhonoring John W. Hardwicke, the executivedirector of the National Association ofAdministrative Law Judges. Also on Aug. 6,the Eminent Domain Section hosted a cock-tail reception for real property, land use andcondemnation practitioners attending theABA convention at the offices of PursleyLowery Meeks, LLP.

The Technology Law Section hosted aquarterly CLE luncheon on Aug. 12 at theBuckhead Club in Atlanta titled “Who ToldYou to Do That?” The discussion coveredemerging issues regarding the way clients

create and store documents and the impacton costs in discovery. More than 20 attorneysmet for lunch and participated in the pro-gram led by Larry Kunin of Morris, Manning& Martin and John Hutchins of McKennaLong & Aldridge. The section’s LitigationCommittee sponsored the meeting, of whichHutchins is the new chair.

Section chairs and officers gathered at theBar Center in Atlanta on Sept. 23 for a brain-storming session. Topics such as meetingplanning, member recruitment and retentionand publications were covered. Represent-atives from ICLE and the Women andMinorities in the Profession Committee spon-sored a luncheon following the meeting topromote and discuss the newly formed andimplemented Speakers’ Clearinghouse.

Reminder: The sections encourage you tosubmit your e-mail address to the Bar’sMembership Department ([email protected]) as sections are increasingly rely-ing on electronic communication to alert theirmembers about CLE events, social meetingsand pertinent legislative and administrativeinformation.

If you are interested in joining one of theBar’s 37 sections, including the newly formedImmigration Law or Judicial sections, you mayremit the appropriate dues payment, alongwith your name, Bar number, address andname of the section you would like to join to:Membership Department, State Bar of Georgia,104 Marietta St. NW, Atlanta, GA 30303.

Johanna B. Merrill is the section liaison ofthe State Bar of Georgia.


Sect

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Law Students Exposed toEthics, Professionalism Issues By Daniel L. Maguire

Justice Sandra Day O’Connor once

said, “The essence of professional-

ism 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-

est in pursuit of the more fundamental goal

of public service. Because of the tremendous

power they wield in our system, lawyers

must never forget that their duty to serve

their clients fairly and skillfully takes priori-

ty over the personal accumulation of wealth.

At the same time, lawyers must temper bold

advocacy for their clients with a sense of

responsibility to the larger legal system

which strives, however imperfectly, to pro-

vide justice for all.” The Chief Justice’s

Commission on Professionalism aims to

instill this sense of duty in Georgia’s lawyers.

In August, Emory University School ofLaw held an orientation on professionalismfor its new class of law students. Other lawschools in Georgia held similar orientations,coordinated by the Commission as part of itsefforts to educate lawyers (and lawyers-to-be) on the concepts of ethics and profession-

alism. Chilton Varner, a partner with King &Spalding in Atlanta, addressed the groupgathered in Tull Auditorium on the Emorycampus.

Why does the Commission go to suchlengths to inform new law students about theimportance of professionalism and ethics?According to Varner, it is “because we arethe problem-solvers…there is no professionthat spends so much time and energy exam-ining not just what we do, but how we do it.”

“There is no reason to be a lawyer if you don’twant to make things better, and you can’t makethings better if you don’t care about standing forsomething ... if you don’t stand for the rightthings,” she said. “Lawyers, in a very funda-mental way, invest themselves as the personalguarantee of their work. If we stand for some-thing, and are recognized for it, it enhances enor-mously what we can accomplish as lawyers.”

October 2004 71

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Chilton Varner, a partner with King &Spalding in Atlanta, addresses first-yearEmory law students.

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

Following, Varner’s speech,Judge Brenda Cole of the StateCourt of Fulton County adminis-tered the oath, students participat-ed in discussion groups where theyanalyzed hypothetical situations(as students and as lawyers) inwhich they would have to makedecisions based on ethics and pro-fessionalism.

The oath taken by Emory stu-dents reads:

“I, as a student entering EmoryUniversity School of Law, under-stand that I am joining an academiccommunity and embarking on aprofessional career. The Law Schoolcommunity and the legal profes-sion share important values that areexpressed in the Emory UniversitySchool of Law ProfessionalConduct Code. I have read theCode and will conduct my academ-ic, professional and personal life tohonor those shared values.”

In addition to the oath, studentsare asked to sign a pledge of pro-fessional conduct, which is kept onfile in the registrar’s office. Similaroaths are taken at Georgia’s otherlaw schools.

The Commission’s efforts are notlost on the students. SlobodanStupar, a transfer student atEmory, said he was surprised tofind so much time and emphasisdedicated to professionalism forincoming students. “I am a transferstudent from a California lawschool and do not recall havingprofessionalism as a part of myfirst-year orientation,” he said. “Ithink it is a great idea to present theentering students with the basictenets of legal professionalism. Itwill hopefully create a more coop-erative and civil environment dur-ing the demanding—and some-times overly competitive—firstyear of law school.”

Other students agreed that the lackof professionalism is a problem in thepractice of law today, particularly inthe public’s perception of lawyers,and they appreciate the attempt to geta head start on the proper mindset.

“Professionalism is a very impor-tant part of being a lawyer, and I’mglad that Emory stresses this aspectas well as the substantive aspects,”said Lindsey Anderson of PaloAlto, Calif., a first-year student.“Some lawyers will sacrifice theirsense of professionalism in order toget ahead—to the detriment ofthemselves, their clients, the profes-sion and our society. I think it isimportant that we hold ourselves tothese standards.”

Daniel L. Maguire is the adminis-trative assistant for the Bar’s com-munications department and acontributing writer for theGeorgia Bar Journal.


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.

The Lawyers Foundation Inc. of Georgia sponsors activities to promote charitable, scientificand educational purposes for the public, law students and lawyers. Memorial contributionsmay 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 fam-ily of the deceased of the gift and the name of the donor. Contributions are tax deductible.

Gwynn M. AdcockRossville, Ga.Admitted 1977Died September 2004

Larry E. BlountAthens, Ga.Admitted 1980Died May 2004

Russell A. Boyd Jr.Folkston, Ga.Admitted 1951Died July 2003

Joseph D. BuccellatoDecatur, Ga.Admitted 1981Died July 2004

Charles L. BurrisCanton, N.C.Admitted 1949Died November 2003

George BusbeeDuluth, Ga.Admitted 1951Died July 2004

John R. CalhounSavannah, Ga.Admitted 1957Died October 2003

David C. CarnahanEatonton, Ga.Admitted 1969Died August 2004

Wayman E. Cobb Jr.Decatur, Ga.Admitted 1952Died July 2004

Michael Shane DavisAtlanta, Ga.Admitted 1996Died August 2004

Wilborn E. GheeslingWichita, Kan.Admitted 1973Died August 2004

James B. GilbertBrunswick, Ga.Admitted 1941Died June 2004

George C. GrantMacon, Ga.Admitted 1938Died May 2004

Charles G. HicksDecatur, Ga.Admitted 1987Died August 2004

Syle Paul HuntCornelia, Ga.Admitted 1991Died March 2004

Robert W. HurstAtlanta, Ga.Admitted 1960Died July 2004

Justin L. JohnsonAtlanta, Ga.Admitted 1990Died August 2004

Carroll Payne JonesAtlanta, Ga.Admitted 1934Died July 2004

Henry A. KeeverCartersville, Ga.Admitted 1951Died May 2004

Jack KnightNashville, Ga.Admitted 1940Died August 2004

Benjamin R. LancasterCentre, Ala.Admitted 1953Died January 2004

Robert N. LeavellAthens, Ga.Admitted 1965Died July 2004

Jay E. LoebAtlanta, Ga.Admitted 1969Died August 2004

James A. MackayAtlanta, Ga.Admitted 1947Died July 2004

Robert M. McCartneySt. Simons Island, Ga.Admitted 1948Died June 2004

Robert L. McHanWinston, Ga.Admitted 1950Died August 2004

George E. OliverSavannah, Ga.Admitted 1939Died July 2004

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Bernard K. RapkinAtlanta, Ga.Admitted 1956Died March 2004

Robert William RouthNew Smyrna Beach, Fla.Admitted 1977Died May 2004

Nancy L. RumbleAtlanta, Ga.Admitted 1979Died August 2004

Richard S. ScottAthens, Ga.Admitted 1955Died April 2004

Edward H. ShannonGainesville, Ga.Admitted 1969Died March 2004

Charles H. SiegelAtlanta, Ga.Admitted 1966Died July 2004

William P. TrotterLaGrange, Ga.Admitted 1947Died August 2004

Maxine H. WraggsBrunswick, Ga.Admitted 1966Died June 2004

George D. Busbee, 76,of Duluth, died July 16.He was governor ofGeorgia from 1975-83,and was the firstGeorgia governor to

serve two consecutive four-yearterms. Busbee was born in Viennaand attended Georgia MilitaryCollege and Abraham BaldwinCollege before joining the Navy.After his discharge, he enrolled atthe University of Georgia, earning abachelor’s degree in 1949 and a lawdegree in 1952. He won a seat in theGeorgia House of Representativesin 1956 and served for 18 years

before running for governor. Afterretiring from politics, Busbeebecame a partner in the Atlantafirm of King & Spalding; he servedon several corporate boards and onthe Export Council during theadministrations of Jimmy Carterand Ronald Reagan. He is survivedby his wife, Mary Beth Busbee; fourchildren, George D. Busbee Jr. ofAlbany, Beth Kindt of Champaign,Ill., Jan Curtis of Atlanta, and JeffBusbee of Suwanee; two sisters,Mrs. Wesley Turton of Cordele andMrs. Madison Coley of Vienna; abrother, Dr. Perry Busbee ofCordele; and 13 grandchildren.

Jay Elliott Loeb, 59, ofAtlanta, died August24. He was a graduateof Washington Univer-sity and VanderbiltUniversity Law School,

and was a partner in the firm ofOlim & Loeb, LLP. Loeb was a for-mer chair of the Bankruptcy LawSection of the Atlanta BarAssociation as well as a member ofthe Atlanta Bar’s board of direc-tors. He was also co-chair of theCreditors’ Rights Section in 2003-04. In May 2004, he was honoredwith the Morris W. Macey LifetimeAchievement Award from the StateBar of Georgia’s Creditor’s RightsSection. He was preceded in deathby his parents, Sam and IreneCohen Loeb of Decatur, Ill., and hissister, Linda Loeb. He is survivedby his wife, Nancy Loeb; twodaughters, Deborah Loeb andKimberly Loeb, and a son, AndrewLoeb, all of Atlanta; cousins, FredLoeb and Larry Adelman; mother-in-law, Frances Wasserman; andsister-in-law and brother-in-law,Lanie and Jerry Rose.

James A. Mackay, 85,of Atlanta, died July 2.He was a formerCongressman and afounding chairman of

the Georgia Conservancy. A 1940graduate of Emory University, healso earned a law degree fromEmory in 1947 and later served aspresident of the alumni associa-tion and as a university trustee.Mackay served in the CoastGuard during World War II andreceived the Bronze Star for devo-tion to duty. He established a lawpractice in Decatur in 1946.Mackay served in the Georgialegislature for six terms. Active inthe civil rights struggle, heworked to keep Georgia’s publicschools open during the heateddebates over desegregation, andhe also organized GeorgiaVeterans for Majority Rule. In1964, Mackay was elected to theU.S. Congress from Georgia’s 4thDistrict. He helped to pass theVoting Rights Act and was instru-mental in procuring federal aidfor the Fernbank Science Centerand Planetarium. The son of aMethodist minister, Mackay wasactive throughout his life in theUnited Methodist Church. AtGlenn Memorial UnitedMethodist Church, he served aschair of the Administrative Boardand as a Sunday school teacher,and he represented the church atAnnual, Jurisdictional andGeneral Conferences. He was pre-ceded in death by his first wife,Mary Caroline Lee Mackay, andhis son, James Edward Mackay.He is survived by his wife, SaraLee Jackson Mackay of SignalMountain, Tenn.; a daughter,Kathleen Mackay of Rising Fawn,Ga.; siblings, Donald M. Mackayof Lakeland, Fla.; John LelandMackay of Matthews, N.C.;Edward H. Mackay of Decatur,Ga. and Betty Mackay Asbury ofAtlanta, Ga.; and many niecesand nephews.


Joseph Henry Lumpkin,Georgia’s First Chief JusticeBy Paul DeForest Hicks, The University of Georgia Press (2002), 183 pagesReviewed by Erin Chance

Joseph Henry Lumpkin, Georgia’s First

Chief Justice, by Paul DeForest Hicks,

is an interesting portrayal of one of

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-ly and their settlement in Lexington, Ga.Hicks then outlines Lumpkin’s early life, fromhis birth in 1799 through his early exposure tolocal politics through his family’s many civicand political connections. The financial suc-cess of his father’s farming and real estateadventures allowed Lumpkin to pursue hisstrong intellectual curiosity by attending anewly formed private school in Lexington andthen matriculating at Princeton University.Hicks draws the connection betweenLumpkin’s intellectual development and thegrowth of his strong Presbyterian values andmorals, which would subsequently guidemany of his legal and social convictions.

Lumpkin returned to Lexington aftergraduating from Princeton and prepared forthe bar examination through the apprentice-ship system by studying law with Thomas

W. Cobb, a successful local attorney from anoted Georgia family. In 1820, Lumpkinpassed the bar examination after less than ayear of preparation, married his childhoodsweetheart, and established a legal practicewith his brother-in-law. Lumpkin’s bound-less energy and intellect enabled him toquickly build a successful legal practicewhile becoming involved in many civic andprofessional organizations. This civicinvolvement remained a strong themethroughout Lumpkin’s life, as did his devo-tion to the law and his family. Lumpkin thenfollowed in his father and brother’s footstepsby serving in the state Legislature for twoterms, enjoying the fruits of his familial andcollegiate connections.

Due to his political visibility and his reputa-tion for unsurpassed intelligence and elocution,Lumpkin’s law practice quickly thrived,

October 2004 75

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expanding far beyond OglethorpeCounty. He was soon “riding the cir-cuit” with other lawyers, representingclients in all parts of the state, andgaining the requisite knowledge ofthe bench and bar of each judicial cir-cuit. Circuit riding was requiredbecause, at this time, Georgia had notyet created a supreme court, a defi-ciency that left no opportunity forsuperior court decisions to beappealed or for conflicting superiorcourt decisions to be reconciled. Tofurther complicate matters, therewere no digests of the Georgiastatutes or published rules of proce-dure to assist practitioners.Unsurprisingly, given thesedemands of legal practice, Lumpkin’sintellect and eloquence greatly distin-guished him.

During the years that his practicewas growing, Lumpkin was a dedi-cated family man to his wife,Callender, and their 10 children.Lumpkin’s civic, religious, andbenevolent involvement alsoincreased dramatically during thisperiod. Lumpkin believed that“merit is the sure road to fame andfortune” and to achieve the goal of ameritocracy, Lumpkin devotedmuch of his energy throughout hislife to the improvement of educationin Georgia at all levels. Among hismany activities, he championed pub-lic education for the poor in Georgia,was instrumental in the establish-ment of Oglethorpe University,founded Phi Kappa at the Universityof Georgia, and was one of threefounders of the University ofGeorgia School of Law. With his son-in-law, T. R.R. Cobb, he provided thelaw library for the fledgling lawschool and found time to lecturethere once a week.

From its inception, oppositionto a supreme court had been apowerful political force in

Georgia, with its constitution of1798 prohibiting appellate reviewor correction of errors by any courtother than the superior court inthe county where the case wasoriginally tried. In 1845, afterdecades of debate regardingappellate review, the Legislaturecreated the Supreme Court ofGeorgia, and Lumpkin was select-ed as one of the three originaljudges. Although it was 20 yearsbefore the position of chief justicewas officially established underGeorgia law, Lumpkin was recog-nized from the outset as the pre-siding judge, due to his 25 years ofexperience as a practicing lawyerand legal scholar.

Hicks depicts a young SupremeCourt that initially faced such oner-ous difficulties that it is almosthard to believe it was successful.The Court had no central head-quarters from which to conductbusiness; rather, it was required toattend sessions in selected citieseach year. This was a physicalendurance test in which the partic-ipants had to travel hundreds ofmiles per year—by stagecoach—tonine different points throughoutthe state. To make matters worse,the justices were responsible for allcosts associated with such supreme“circuit riding,” including foodand lodging, out of their relativelylow salaries. The Court had nolibrary from which to gain knowl-edge of previous decisions or legaltheory. Decisions, which wererequired to be made before thecommencement of the next sessionof the Court, were written in long-hand without the assistance of astenographer or law clerk. Thesedecisions were made even moredifficult by the Court’s charge toreview “any error in any decision,sentence, judgment or decree” in

every case brought before them,not just points of law.

Lumpkin’s judicial persona wascharacterized by his belief, as anevangelical Christian, that “animportant aspect of his judicialrole was to aid the advance of civ-ilization through reform.” Heincorporated into his jurispru-dence what legal historians call“legal instrumentalism,” a practi-cal concept of the law that com-peted with the traditional view ofthe law as being based on prece-dent. In his decisions, Lumpkinunderscored his belief that eco-nomic progress resulting fromfree trade and unfettered competi-tion was the only way to serve thepublic interest; to this end herepeatedly ruled in favor of man-ufacturing and commercial enter-prises to support economic devel-opment in Georgia. Lumpkin’seconomic jurisprudence was alsoapplied in the cases he decidedinvolving slaves, whom heviewed as “a portion of the vestedwealth and taxable property ofthe state.” Hicks navigates theevolution of Lumpkin’s thoughtsconcerning slavery, colonization,and secession through the manyopinions Lumpkin wrote regard-ing these issues.

In sum, Hicks does a wonder-ful job of educating the readerabout Joseph Henry Lumpkinand the life of the lawyer in theearly-to mid-19th century.Although the book is sometimesdifficult to follow because of itsloose chronological organization,this problem does not overshad-ow the intriguing subject matter.Joseph Henry Lumpkin, Georgia’sFirst Chief Justice is an enjoyabledepiction of a man who shapedmuch of the current judicial expe-rience in this state.


If I’m Such a Great Lawyer,Why Can’t I Win anArgument With My Wife?By Michael R. Hirsh

T his is my official suggestion for a

CLE on how husbands can win

an argument with their wives.

Such a seminar would be a welcome addition

to “Fascinating Nuances of Debt Collection.”

It really makes perfect sense. Sure, somenaysayers argue that a class like this couldn’tbe taught because it is virtually impossible—except for token acquiescence by the wife—for a husband to win any argument.

Notice that I have set mysights low. I didn’t say for hus-bands to win arguments; justthat we win one. And I’m nottalking about when our wives letus think we’ve won, when allwe’ve done is agree with themand do what they wanted allalong. I’m talking about real vic-tory here: I don’t know, maybesomething like getting to leavethe toilet seat in the upright andlocked position. Now that wouldbe something!

But I’m a realist. There are somedifficulties in having such a courseoffering. Not the least of which iswhom would you get to teach it.Would a woman come forward tolead such a discussion? Not a

chance! That would be like Bill Clinton sellinghighly sensitive, top secret, military technologyto Red China in exchange for a measly few mil-lion dollars in campaign contributions. Okay,bad example, but you get my point.

So the class would have to be taught by aman. But who? And is he going to tell hiswife what he’s doing? Yeah, right! Can’t youjust see it: about halfway through his lecturehis cell phone rings. “Yes, dear. I know, dear.You’re absolutely right, dear. I am clearlywrong, dear.”

The idea for this CLE struck me during aremodeling project on my home. Sure, I call it

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a remodeling project now. Backthen it was trial by ordeal. Everymarriage should have this experi-ence. I had completed a major por-tion of the project when I sum-moned my wife to the room. I usethe word “summon” only in thenicest sense of the word.

When she appeared in the door-way, I asked the question that thou-sands of husbands have askedbefore me: “Honey, what do youthink?” Now, for you ladies readingthis, the last thing any husband real-ly wants to know is what you think.In the husband profession, we callthis fishing for a compliment.

So I ask and immediately startthinking what her response mightbe: “Dear, this is so amazing, youare incredible . . . no, you are as agod. Your construction prowess issecond to none. I can’t wait to showyou how much I appreciate yourwork. In fact, let’s not wait!” Myfantasy continues for the better partof a nanosecond when my wife asksflatly, “Isn’t this hallway just a littletoo narrow?” Oh, that ought to beeasy to fix!

Shortly after the hallway hadbeen widened 6.325 inches, mybride and I were discussing whatkind of light fixtures to install. Mywife told me she didn’t care and

that whatever I decided would befine. What was I thinking?

Think of it this way: every deci-sion that we are called upon tomake can be classified as eitherwhite shoes or blue shoes. Yourwife asks you which you like best.The dictates of reason and logicinescapably lead you to concludethat blue is the superior choice.Hint: white is clearly the correctanswer. My wife really didn’t meanthat what I decided would be fine.She meant that the opposite of whatI decided would be fine. It is clearlymy fault for not knowing this.

Several hours later my choice oflighting fixture was installed and theceiling was finished. (I did not makethe ‘honey-what-do-you-think’ mis-take.) As I was under the bathroomcabinet installing a new sink, I sud-denly felt an exposed high-voltagewire enter the room. After bangingmy head a couple of times on my wayto investigate this hazard, I discov-ered my wife standing there. Insteadof her usual angelic countenance, shehad a look of grave concern.

“What’s wrong?” I ask. “Nothing,” she replies, half an

octave higher than usual. Being an astute observer of evi-

dence, I know that something isindeed wrong.

“No, really,” I continue, “what’sthe matter?”

“If I tell you, you’ll just getmad.” She says.

“Go ahead, I’m already mad.”So after some thorough explain-

ing and airtight reasoning on mypart, the virtues of the currentlighting arrangement are extolled. Iaddress the expense of changingthe lights and the difficulty of re-doing the ceiling. Any jury on thecontinent would be convincedbeyond any doubt. The men of thepanel would be in awe of my com-pelling logic, the women wooed bymy impassioned eloquence.

My wife of over two decades, myfriend, my companion, the motherof my children, friend to the friend-less, and repository of all that hasvirtue, was not, however, on thejury. So I resorted to an authoritari-an style. The face was red, the veinsbulging. It was truly impressive.You should have seen her.

My final words were, “I am notgoing to replace those lights, peri-od!” That, as they say, was that.

All in all, replacing the lights didnot take me that long. And I have toadmit (and I do mean have to) thatthe new lights look better. I knowthat my wife likes the new lights too.

Maybe the name of the CLEshould be “Give in early—itsaves time.”

Michael Hirsh is the managingpartner of the Atlanta, Georgiaoffice of Hirsh & Heuser, P.C., withoffices in Georgia and Kentucky.The firm practices in the areas ofbusiness, business litigation, crimi-nal defense and selected personalinjury matters. Hirsh is also avail-able for consultation on homeremodeling projects (especiallylighting questions) and may bereached at [email protected].


Submissions Wanted for New Humor ColumnThe Bar Journal would like to see this new column find a perma-nent home in each issue. To achieve this, we will need contribu-tions from you! If you have humorous anecdotes that you wouldlike to share from your practice, from the courtroom, or justfrom your day-to-day lawyer life, we want to hear about it.Please limit submissions to 500 words.

Send your submissions to:Humor Column, Georgia Bar Journal, 104 Marietta St. NW, Suite100, Atlanta, GA 30303; [email protected]

October 2004Sept. 29—Oct. 1

ICLEInsurance Law InstituteAtlanta, Ga.12 CLE

1

ICLEAutomobile Insurance LawAtlanta, Ga.6 CLE

ICLEWinning Before TrialAtlanta, Ga.6 CLE

ICLEAdvanced Health Care LawAtlanta, Ga.6 CLE

6

ICLETechnology Law InstituteAtlanta, Ga.6 CLE

7

ICLETitle StandardsAtlanta, Ga.6 CLE

7-9

ICLEWorkers’ Compensation Law InstituteSt. Simons Island, Ga.13 CLE

ICLESolo & Small Firm InstituteSavannah, Ga.12 CLE

8

ICLETax with George SchainAtlanta, Ga.7 CLE

ICLESecurities LitigationAtlanta, Ga.6 CLE

14

ICLEClass ActionsAtlanta, Ga.6 CLE

ICLEEffective Legal Negotiations and SettlementsAtlanta, Ga.6 CLE

ICLEConstruction Law for the GPAtlanta, Ga.6 CLE

15

ICLEAdvanced Slip and Fall CasesAtlanta, Ga.6 CLE

ICLEEmployers’ Duties and ProblemsAtlanta, Ga.6 CLE

ICLEProfessional and Ethical DilemmasAtlanta, Ga.3 CLE

21

ICLECriminal LawAtlanta, Ga.6 CLE

21-22

ICLEBusiness Law InstituteAtlanta, Ga.12 CLE

22

ICLEZoningAtlanta, Ga.6 CLE

October 2004 79

CLEC

alendarNote: To verify a course that you do not see listed, please call the

CLE Department at (404) 527-8710. Also, ICLE seminars only list totalCLE hours. For a breakdown, call (800) 422-0893.


ICLEMercer Professionalism SymposiumMacon, Ga.6 CLE

27

ICLESelected Issues in Estate PlanningAtlanta, Ga.4 CLE

28

ICLEMBA for LawyersAtlanta, Ga.6 CLE

ICLEAmerican Justice SystemMarietta, Ga.3 CLE

29

ICLEHealth Care FraudAtlanta, Ga.6 CLE

ICLEGeorgia Personal Injury PracticeAtlanta, Ga.6 CLE

November 20044

ICLEPremises LiabilityAtlanta, Ga.6 CLE

ICLEHandling Administrative License MattersAtlanta, Ga.6 CLE

5

ICLEAdoption LawAtlanta, Ga.6 CLE

ICLEAdvocacy & EvidenceAtlanta, Ga.6 CLE

ICLEProfessionalism, Ethicsand MalpracticeAtlanta, Ga. and GPTV Statewide3 CLE

LORMAN BUSINESS CENTER, INC.Construction Law: From Bidding to Final PaymentAtlanta, Ga.6.7 CLE

11

ICLECommercial Real EstateAtlanta, Ga.6 CLE

LORMAN BUSINESS CENTER, INC.Loan Officer: An A to Z ApproachAtlanta, Ga.6 CLE

11-13

ICLEMedical Malpractice InstituteAmelia Island, Fla.12 CLE

12

ICLENuts & Bolts of Family LawAtlanta, Ga.6 CLE

ICLEBuying and Selling Private BusinessesAtlanta, Ga.6 CLE

LORMAN BUSINESS CENTER, INC.Zoning and land Use in GeorgiaAthens, Ga.6 CLE

12-16

ICLEEntertainment & Sports Law InstituteCabo San Lucas, Mexico12 CLE

ICLEIntellectual Property Law InstituteCabo San Lucas, Mexico12 CLE

15

NBI, INC.Find It Free & Fast on the Net: Advanced InternetStrategies for Ga.Atlanta, Ga.6 CLE

CLE

Cal

enda

r

17

NBI, INC.Keys to Successful Pre-Trial Preparation in GeorgiaAtlanta, Ga. 6 CLE including 0.5 Ethics and 6 Trial

18-29

ICLEADR InstituteLake Lanier, Ga.12 CLE

18

ICLEEconomic Development in GeorgiaAtlanta, Ga.6 CLE

ICLESecured LendingAtlanta, Ga.6 CLE

19

ICLECorporate LitigationAtlanta, Ga.6 CLE

ICLEWinning Case SettlementsAtlanta, Ga.6 CLE

ICLERecent DevelopmentsAtlanta, Ga. and GPTV Statewide6 CLE

21

PROFESSIONAL EDUCATION SYSTEMS, INC.How to Evaluate Orthopedic Injury Cases for Trial orSettlementAtlanta, Ga. 6 CLE with 6 Trial

December 20042

ICLEWhite Collar CrimeAtlanta, Ga.6 CLE

NBI, INC.Basic Bankruptcy Litigation in GeorgiaAtlanta, Ga. 6 CLE including 0.5 Ethics and 6 Trial

2-3

ICLECorporate Counsel InstituteAtlanta, Ga.12 CLE

3

ICLELandlord and Tenant LawAtlanta, Ga.6 CLE

ICLETrial AdvocacyAtlanta, Ga. and GPTV Statewide6 CLE

ICLESection 1983 LitigationAtlanta, Ga.6 CLE

NBI, Inc.Handling Medical Negligence Cases in GeorgiaAtlanta, Ga. 6 CLE with 0.5 Ethics

6

NBI, Inc.Georgia Land Use: Current Issues in SubdivisionAnnexation and ZoningAtlanta, Ga.6 CLE

9

ICLELaying Evidentiary FoundationsAtlanta, Ga.6 CLE

ICLETaxation and the Georgia DORAtlanta, Ga.6 CLE

NBI, Inc.Handling Divorce Cases form Start to FinishAtlanta, Ga.6 CLE with 0.5 Ethics

10

ICLEGeorgia Tort lawAtlanta, Ga.6 CLE

ICLETaking Expert DepositionsAtlanta, Ga.6 CLE

October 2004 81

CLEC

alendar


ICLEBasic Fiduciary PracticeAtlanta, Ga. and GPTV Statewide6 CLE

13

NBI, Inc.An Advanced Look At Georgia Real Estate LawAtlanta, Ga.6.7 CLE with 0.5 Ethics

14-15

ICLESelected Video ReplaysAtlanta, Ga.CLE

14

NBI, Inc.Georgia Estate Planning and Drafting FundamentalsAtlanta, Ga.6 CLE with 0.5 Ethics

15

NBI, Inc.Insurance Coverage Law in GeorgiaAtlanta, Ga.6 CLE with 0.5 Ethics

16

ICLEA Day on TrialAtlanta, Ga.6 CLE

ICLEMatrimonial Law Practice WorkshopAtlanta, Ga.6 CLE

NBI, Inc.Admissibility of Evidence and Expert Testimony inGeorgiaAtlanta, Ga. 6 CLE including 0.5 Ethics and 6 Trial

16-17

ICLEDefense of Drinking Drivers InstituteAtlanta, Ga.12 CLE

17

ICLERecent DevelopmentsAtlanta, Ga.6 CLE

ICLELabor and Employment LawAtlanta, Ga.6 CLE

CLE

Cal

enda

r youDidKnow?4 The State Bar of Georgia is the

ninth largest bar in the UnitedStates.

4 There are 8,350 out-of-statemembers.

4 26% of the Bar is under age35.

4 32% of the Bar is female.

4 More than 18,650 membersreside in metro Atlanta.

4 Anticipated growth of 1,300new members each year.

4 There are 23,380 sectionmembers with 17,070individual members who belongto one or more sections.

4 62% overall growth from 1990to 2004.

4 35,438 members in goodstanding.

4 Bar members cover a wide agerange from those born in 1902and admitted in 1925 to thoseborn in 1979 and admitted in2002.

4 66% of our members list an e-mail address.

4 113 members reside outsidethe United States in 26 foreigncountries.

4 789 members have beenadmitted to practice for 50years or more.

4 The State Bar has membersresident in all 50 states.

4 2004-05 State Bar

budget: $7.2 million

4 Full-time employees: 60

4 Part-time employees: 1

October 2004 83

Not

ices

NOTICE OF FILING OF FORMAL ADVISORY OPINIONS IN SUPREME COURTSecond Publication ofProposed Formal AdvisoryOpinion Request No. 02-R1Hereinafter known as“Formal Advisory OpinionNo. 04-1”

Members of the State Bar of Georgia arehereby NOTIFIED that the Formal AdvisoryOpinion Board has issued the followingFormal Advisory Opinion, pursuant to theprovisions of Rule 4-403(d) of Chapter 4 of theRules and Regulations of the State Bar ofGeorgia approved by order of the SupremeCourt of Georgia on May 1, 2002. This opin-ion will be filed with the Supreme Court ofGeorgia on or after October 15, 2004.

Rule 4-403(d) states that within 20 days ofthe filing of the Formal Advisory Opinion orthe date the publication is mailed to themembers of the Bar, whichever is later, theState Bar of Georgia or the person whorequested the opinion may file a petition fordiscretionary review thereof with theSupreme Court of Georgia. The petition shalldesignate the Formal Advisory Opinionsought to be reviewed and shall conciselystate the manner in which the petitioner isaggrieved. If the Supreme Court grants thepetition for discretionary review or decidesto review the opinion on its own motion, therecord shall consist of the comments receivedby the Formal Advisory Opinion Board frommembers of the Bar. The State Bar of Georgiaand the person requesting the opinion shallfollow the briefing schedule set forth in

Supreme Court Rule 10, counting from thedate of the order granting review. The finaldetermination may be either by written opin-ion or by order of the Supreme Court andshall state whether the Formal AdvisoryOpinion is approved, modified, or disap-proved, or shall provide for such other finaldisposition as is appropriate.

In accordance with Rule 4-223(a) of theRules and Regulations of the State Bar ofGeorgia, any Formal Advisory Opinionissued pursuant to Rule 4-403 which is notthereafter disapproved by the SupremeCourt of Georgia shall be binding on the StateBar of Georgia, the State Disciplinary Board,and the person who requested the opinion, inany subsequent disciplinary proceedinginvolving that person.

Pursuant to Rule 4-403(e) of Chapter 4 ofthe Rules and Regulations of the State Bar ofGeorgia, if the Supreme Court of Georgiadeclines to review the Formal AdvisoryOpinion, it shall be binding only on the StateBar of Georgia and the person who requestedthe opinion, and not on the Supreme Court,which shall treat the opinion as persuasiveauthority only. If the Supreme Court grantsreview and disapproves the opinion, it shallhave absolutely no effect and shall not con-stitute either persuasive or binding authority.If the Supreme Court approves or modifiesthe opinion, it shall be binding on all mem-bers of the State Bar and shall be published inthe official Georgia Court and Bar Rules man-ual. The Supreme Court shall accord suchapproved or modified opinion the sameprecedential authority given to the regularlypublished judicial opinions of the Court.


STATE BAR OF GEORGIAISSUED BY THE FORMAL ADVISORYOPINION BOARDPURSUANT TO RULE 4-403 ON AUGUST 6, 2004FORMAL ADVISORY OPINION NO. 04-1(Proposed Formal Advisory OpinionRequest No. 02-R1)

Question Presented:

May a lawyer participate in a non-lawyer entity cre-ated by the lawyer for the purpose of conducting resi-dential real estate closings where the closing proceedsreceived by the entity are deposited in a non-IOLTAinterest bearing bank trust account rather than anIOLTA account?

Summary Answer:

The closing of a real estate transaction constitutes thepractice of law. If an attorney supervises the closingconducted by the non-lawyer entity, then the attorneyis a fiduciary with respect to the closing proceeds andclosing proceeds must be handled in accordance withRule 1.15 (II). If the attorney does not supervise theclosings, then, under the facts set forth above, thelawyer is assisting a non-lawyer in the unauthorizedpractice of law.

Opinion:

The closing of a real estate transaction in the state ofGeorgia constitutes the practice of law. See, In re UPLAdvisory Opinion 2003-2, 277 Ga. 472, 588 S.E. 2d 741(Nov. 10, 2003), O.C.G.A. §15-19-50 and FormalAdvisory Opinions Nos. 86-5 and 00-3. Thus, to theextent that a non-lawyer entity is conducting residentialreal estate closings not under the supervision of alawyer, the non-lawyer entity is engaged in the practiceof law. If an attorney supervises the residential closing1,then that attorney is a fiduciary with respects to the clos-ing proceeds. If the attorney participates in but does notsupervise the closings, then the non-lawyer entity isengaged in the unauthorized practice of law. In suchevent, the attorney assisting the non-lawyer entitywould be doing so in violation of Rule 5.5 of the GeorgiaRules of Professional Conduct.2

When a lawyer is supervising a real estate closing, thelawyer is professionally responsible for such closings. Anyclosing funds received by the lawyer or by persons or enti-ties supervised by the lawyer are held by the lawyer as afiduciary. The lawyer’s responsibility with regard to suchfunds is addressed by Rule 1.15 (II) of the Georgia Rules ofProfessional Conduct which states in relevant part:

SAFEKEEPING PROPERTY - GENERAL

(a) Every lawyer who practices law in Georgia,whether said lawyer practices as a sole practitioner,or as a member of a firm, association, or professionalcorporation, and who receives money or property onbehalf of a client or in any other fiduciary capacity,shall maintain or have available a trust account asrequired by these Rules. All funds held by a lawyerfor a client and all funds held by a lawyer in anyother fiduciary capacity shall be deposited in andadministered from such account.* * * * *(c) All client’s funds shall be placed in either aninterest-bearing account with the interest being paidto the client or an interest-bearing (IOLTA) accountwith the interest being paid to the Georgia BarFoundation as hereinafter provided.

(1) With respect to funds which are not nomi-nal in amount, or are not to be held for a shortperiod of time, a lawyer shall, with notice to theclients, create and maintain an interest-bearingtrust account in an approved institution asdefined by Rule 1.15(III)(c)(1), with the interestto be paid to the client. No earnings from suchan account shall be made available to a lawyeror law firm.(2) With respect to funds which are nominal inamount or are to be held for a short period oftime, a lawyer shall, with or without notice to theclient, create and maintain an interest-bearing,government insured trust account (IOLTA) incompliance with the following provisions:

* * * * *As set out in Subsection (c)(2) above, this Rule applies

to all client funds which are nominal or are to be held fora short period of time. As closing proceeds are not nom-inal in amount, but are to be held for only a short peri-od of time, they are subject to the IOLTA provisions.Therefore, the funds received in connection with the realestate closing conducted by the lawyer or the non-lawyer entity in the circumstances described abovemust be deposited into an IOLTA compliant account.

Endnotes1. Adequate supervision would require the lawyer to

be present at the closing. See FAO . . . .etc.2. Rule 5.5 states in relevant part that:

UNAUTHORIZEDPRACTICE OF LAWA lawyer shall not:

* * * * * *(b) assist a person who is not a member of the barin the performance of activity that constitutes theunauthorized practice of law.

The maximum penalty for a violation of this Rule isdisbarment.

No earlier than thirty days after the publication ofthis Notice, the State Bar of Georgia will file a Motion toAmend the Rules and Regulations for the Organizationand Government of the State Bar of Georgia pursuant toPart V, Chapter 1 of said Rules, 2003-2004 State Bar ofGeorgia Directory and Handbook, p. H-6 to H-7 (here-inafter referred to as “Handbook”).

I hereby certify that the following is the verbatim textof the proposed amendments as approved by the Boardof Governors of the State Bar of Georgia. Any memberof the State Bar of Georgia who desires to object to theproposed amendments to the Rules is reminded that heor she may only do so in the manner provided by Rule5-102, Handbook, p. H-6.

This Statement, and the following verbatim text, areintended to comply with the notice requirements of Rule5-101, Handbook, p. H-6.

Cliff BrashierExecutive Director


IN THE SUPREME COURTSTATE OF GEORGIA

IN RE: STATE BAR OF GEORGIARules and Regulations for its Organization and Government

MOTION TO AMEND 2004-3

MOTION TO AMEND THE RULES AND REGULATIONS OF THE

STATE BAR OF GEORGIA

COMES NOW, the State Bar of Georgia, pursuant tothe authorization and direction of its Board ofGovernors in regular meetings held on June 19, 2004,and upon the concurrence of its Executive Committee,presents to this Court its Motion to Amend the Rulesand Regulations of the State Bar of Georgia as set forthin an Order of this Court dated December 6, 1963 (219Ga. 873), as amended by subsequent Orders, 2003-2004State Bar of Georgia Directory and Handbook, pp. 1-H, etseq., and respectfully moves that the Rules andRegulations of the State Bar of Georgia be amended inthe following respects:

I.Proposed Amendments to Part VI, Arbitration of Fee

Disputes, of the Rules of the State Bar of Georgia

It is proposed that certain provisions of Part VIof the Rules of the State Bar of Georgia regarding thearbitration of fee disputes be amended as follows:

Preamble

[second paragraph]A unique feature of this program provides thatwhere the petitioner is a client whose claim afterinvestigation appears to warrant a hearing, and therespondent lawyer refuses to be bound by anyresulting award, the matter will not be dismissed,but an ex parte arbitration hearing will may be held.If the outcome of this hearing is in the client’s favor,the State Bar will provide a lawyer at no cost, otherthan actual litigation expenses, to the client to rep-resent the client in subsequent litigation to adjustthe fee in accordance with the arbitration award.

Rule 6-102. Membership.

The Committee shall consist of three six lawyermembers and two three public members who arenot lawyers. The three six lawyer members shall beappointed by the President of the State Bar, and thetwo three public members shall be appointed by theSupreme Court of Georgia.

Rule 6-201. Jurisdiction.

The Committee may accept jurisdiction over a feedispute only if all of the following requirements aresatisfied:

…..

(d) The disputed fee:

(1) exceeds ($750) seven hundred and fiftydollars.

(2) is not one the amount of which is gov-erned by statute or other law, nor one the fullamount or all terms of which have alreadybeen fixed or approved by order of a court.

…..

(g) The fee dispute is not the subject of litigationin a court of record at the time the Petition forarbitration is filed.

October 2004 85

NOTICE OF MOTION TOAMEND THE RULES AND REGULATIONSOF THE STATE BAR OF GEORGIA

Rule 6-601. Special Case Procedure.…..

(b) The arbitrator panel shall be selected by theCommittee or its staff, and

(1) in cases involving amounts in disputeover $2,500 shall consist of two (2) attorneyswho have practiced law actively for at leastfive (5) years and one (1) non-lawyer publicmember.(2) in cases involving amounts in dispute of$2,500 or less, the arbitration panel may con-sist of one arbitrator who shall be a lawyerwho has practiced law actively for at leastfive (5) years.

…..

SO MOVED, this ______ day of ____________, 2004

Counsel for the State Bar of Georgia

______________________________William P. Smith, III

General CounselState Bar No. 665000

______________________________Robert E. McCormack

Deputy General CounselState Bar No. 485375

OFFICE OF THE GENERAL COUNSELState Bar of Georgia104 Marietta Street, NW – Suite 100Atlanta, Georgia 30303(404) 527-8720


UPL Advisory Opinion No. 2004-1Issued by the Standing Committee on the Unlicensed

Practice of Law on August 6, 2004.

Note: This opinion is only an interpretation of thelaw, and does not constitute final action by theSupreme Court of Georgia. Unless the Court grantsreview under Bar Rule 14-9.1(g), this opinion shall bebinding only on the Standing Committee on theUnlicensed Practice of Law, the State Bar of Georgia,and the petitioner, and not on the Supreme Court ofGeorgia, which shall treat the opinion as persuasiveauthority only.

QUESTION PRESENTED

Is the preparation or filing of a lien considered theunlicensed practice of law if it is done by someone otherthan the lienholder or a licensed Georgia attorney?

SUMMARY ANSWER

A nonlawyer’s preparation of a lien for another inexchange for a fee is the unlicensed practice of law. Theministerial act of physically filing a lien with a court isnot the practice of law.

OPINION

There are two components to the question presentedabove, viz., the preparation of a lien and the filing of alien. With regard to the latter, the Committee is of theopinion that the mere ministerial act of physically filinga lien with a court does not in itself constitute the prac-tice of law.

As far as the preparation of a lien, the Committeelooks in part to O.C.G.A. §15-19-50(3), which states thatthe practice of law includes “[t]he preparation of legalinstruments of all kinds whereby a legal right issecured.” The Supreme Court of Georgia has recentlyindicated that O.C.G.A. §15-19-50(3) continues to aidthe judiciary in the performance of its functions withregard to defining the practice of law in this state. In reUPL Advisory Opinion 2003-2, 277 Ga. 472, 474 (2003).See also In re UPL Advisory Opinion 2002-1, 277 Ga.521, 522 (2004).

A lien is “‘a hold or claim which one person has onthe property of another as a security for some debt orcharge.’” Waldroup v. State, 198 Ga. 144, 149 (1944). Seealso Miller v. New Amsterdam Cas. Co., 105 Ga. App.174, 176 (1961). With regard to real estate, a lien encum-bers title. Lincoln Log Homes Mktg., Inc., v. Holbrook,163 Ga. App. 592, 594 (1982). There are a variety of liensavailable under Georgia law. See, e.g., O.C.G.A. §44-14-320. They may vary as to the particulars of their opera-tion, but all assert the perceived rights of the lienholder.A lien affects the status of title as to the relevant proper-ty, and is an instrument designed to secure a legal right.It follows that under O.C.G.A. §15-19-50(3) the prepara-tion of a lien constitutes the practice of law.

During the public hearing regarding this matter, theCommittee heard a presentation made by a nonlawyerbusiness entity that prepares mechanics’ and material-men’s liens for others. The customer provides the com-pany with relevant background information, and thecompany performs a title search, prepares a legaldescription of the property, and inserts the description

into the lien document. The com-pany then prints the lien, files itwith the appropriate court, andprovides notice to the propertyowner. According to the company,its employees do not provide legaladvice to the customer. The com-pany claims that this activity is notthe practice of law, notwithstand-ing the existence of O.C.G.A. §15-19-50(3).

The company first asserts thatits activity is essentially tanta-mount to performing a title searchand preparing an abstract of title,an activity allowed by O.C.G.A.§15-19-53. An abstract of title“should be a complete showing inmore or less abbreviated form ofall instruments appearing ofrecord in any way affecting thetitle, either adversely or beneficial-ly….” 3 Hinkel, Pindar’s GeorgiaReal Estate Law and Procedure,§26-7, p. 44 (6th ed. 2004). In theCommittee’s view, it is not properto equate a title search or abstractof title with a lien. As notedabove, an abstract identifies a lien;

it is not itself a lien. Moreover, anabstract, being a history of the titleto land, is at its core a neutral,informational document. A lien,on the other hand, asserts a legalclaim. Given the foregoing, itwould be unreasonable to readO.C.G.A. §15-19-53 as extendingto the preparation of liens.

In the alternative, the companystates that its activity is allowedunder O.C.G.A. §15-19-52, whichdoes not prohibit drafting a legalinstrument for another “providedit is done without fee and solely atsolicitation and the request andunder the direction of the person,firm, or corporation desiring toexecute the instrument.” The com-pany claims that it collects a feefrom its customer solely for prepar-ing an abstract of title or providinga legal description of the property,and that it then prepares the lienfree of charge.

The Committee views the lattercontention as being disingenuous.Accepting such a deconstruction of

the transaction would effectivelyeviscerate O.C.G.A. §15-19-50(3),because the nonlawyer preparer ofa legal document could alwaysclaim to be charging the fee forsomething other than the prepara-tion of the instrument. An inter-pretation of O.C.G.A. §15-19-50(3)that leads to such a result cannot bea correct one. Rather, it seemsmore sensible to examine the rea-son the customer contacted thenonlawyer document preparer, theexpectations of the customer, andthe ultimate product of the transac-tion. In the situation describedabove, the goal of the customer isto procure a lien, not a mereabstract of title or legal descriptionof property. The customer in factobtains the lien, and pays the com-pany for its services in this regard.Under the circumstances, the trans-action involves the practice of lawas set out in O.C.G.A. §15-19-50(3),and the consequent furnishing oflegal services within the meaningof O.C.G.A. §15-19-51(a)(4).

October 2004 87

AAA Attorney Referral Service ..............49

ABA Members Retirement Program ........9

Arthur Anthony ....................................37

D. Jeff DeLancey, CPA, PC......................65

Daniel Turner Builders, Inc. ....................49

Daniels-Head Insurance ........................32

Garvin & Milles......................................39

Georgia Lawyers Insurance Co. ............IFC

Gilsbar, Inc. ..........................................21

Insurance Specialists, Inc. ....................IBC

Keenan’s Kids Foundation ....................15

Lawyers Direct ......................................29

Mainstreet ............................................13

Marcia G. Shein ....................................49

Minnesota Lawyers Mutual ..................23

Mitchell Kaye Valuation ........................67

Patterson, Thuente, Skaar & Christensen ..39

RMT......................................................45

South Georgia ADR ..............................43

West ..............................................25, BC

Earn up to 6 CLE credits for authoring legalarticles and

having them published.

Submit articles to:Marcus David LinerGeorgia Bar Journal

104 Marietta St. NW, Suite 100Atlanta, GA 30303

Contact [email protected] for more information

or visit the Bar’s Web site, www.gabar.org/gbjsub.asp.

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2,000 medical malpractice expert witnesses, allspecialties. Flat rate referrals. We’ll send you toan expert you’re happy with, or we’ll send yourmoney back—GUARANTEED. Or choose apowerful in-house case analysis by veteran MDspecialists, for a low flat rate. Med-malEXPERTS, Inc.; www.medmalEXPERTS.com;(888) 521-3601.

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New York and New Jersey Actions. GeorgiaBar member practicing in Manhattan, also withNew Jersey office, can help you with your cor-porate transactions and litigation in both stateand federal courts. Contact E. David Smith, 551Fifth Avenue, Suite 1601, New York, NewYork 10176; (212) 697-9500, ext. 150.

Insurance Expert Witness. Specialists in pro-viding insurance litigation services to plain-tiffs, defendants and liquidators. Expertiseincludes vanishing premiums, unfair tradepractices, bad faith, damages, antitrust, actu-arial malpractice and the evaluation ofindustry practices against prevailing stan-dards. Former Insurance Commissioner andCEO, NCCI. Insurance Metrics Corp, 561-995-7429. Full background at www.expertin-surancewitness.com.

PositionsNational insurance company seeks local sub-rogation attorneys. Respond to: UnitedSubrogation Services, 980 N. Michigan Ave.,#1400, Chicago, IL 60611.

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