Administrative Law Judges “Ride the Circuit” to Provide

Administrative Law Judges“Ride the Circuit” to ProvideGeorgians with a Day in Court

Administrative Law Judges“Ride the Circuit” to ProvideGeorgians with a Day in Court

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AL6291

Departments4 From the President

6 From the Executive Director

8 From the YLD President

48 Bench & Bar

50 Office of the General Counsel

52 Lawyer Discipline

53 Law Practice Management

56 South Georgia Office

57 Section News

61 Professionalism Page

64 In Memoriam

65 CLE Calendar

70 Notices

82 Classified Resources

Legal10 Georgia General Assembly Adopts

“Manifest Disregard” as a Ground for Vacating Arbitration Awards: How Will Georgia Courts Treat the New Standard?By John W. Hinchey and Thomas V. Burch

Features19 Administrative Law Judges “Ride the Circuit”

to Provide Georgians with a Day in CourtBy Judge Lois F. Oakley

24 Alleviating the Pain of Electronic Discovery:Prospective Consideration of the Zubulake FactorsBy John Livingstone

28 Standing Orders: Filling the Gap Between the Civil Practice Act and the PracticeBy Cary Ichter

35 Fall 2003 Board of Governors Meeting Summary

38 Society, Participants Benefit from BASICSSubmitted By the Lawyers Foundation of Georgia

41 Lawyers Foundation of Georgia’s Fourth Annual Challenge GrantsBy Lauren Larmer Barrett

43 A Few Tricks You Should KnowManaging Your IOLTA AccountBy Len Horton

Publisher’s StatementThe Georgia Bar Journal (ISSN-1085-1437) is published six times per year (bi-monthly) bythe State Bar of Georgia, 104 Marietta St. NW, Suite 100, Atlanta, Georgia 30303. © StateBar of Georgia 2004. One copy of each issue is furnished to members as part of theirState Bar dues. Subscriptions: $36 to non-members. Single copies: $6. Periodicals postagepaid in Atlanta, Georgia and additional mailing offices. Opinions and conclusionsexpressed in articles herein are those of the authors and not necessarily those of theEditorial Board, Communications Committee, Officers or Board of Governors of the StateBar of Georgia. Advertising rate card will be furnished upon request. Publishing of anadvertisement does not imply endorsement of any product or service offered. POSTMAS-TER: Send address changes to same address.

On the CoverWhether the courtroom is aliving room or a nursinghome bedside, administrativelaw judges travel the stateproviding Georgians with animpartial and efficient forumto resolve disputes involvingstate government.See page 19.

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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].

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Editorial BoardRebecca Ann Hoelting

Editor-in-Chief

Scott Fain Bertschi W. Fray McCormick

Bill Bost E. Peyton Nunez

Elizabeth Lee Branch Erick H. Rock

Erin Reynolds Chance Cynthia B. Smith

Charles Madden Cork III Robert R. Stubbs

Lynda Carney Crum Kristin H. West

John Michael Gross Pamela Y. White-Colbert

Sarah Howard Lamar W. Scott Wright

Marcus David Liner

AdvisorsTheodore Harris Davis Jr.

D. Scott Murray

Marisa Anne Pagnattaro

Editors Emeritus Marisa 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

Charles R. Adams III, 89-91 Robert H. Walling, 75-77

Officers of the State Bar of GeorgiaWilliam D. Barwick President

George Robert Reinhardt Jr. President-elect

Robert D. Ingram Secretary

J. Vincent Cook Treasurer

James B. Durham Immediate Past President

Andrew W. Jones YLD President

Laurel P. Landon YLD President-elect

Derek J. White 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

By William D. Barwick

Court Futures

Over the last six

months, many friends

and colleagues have

asked me if there were any specific

problems that I had encountered to

date as president of the State Bar.

These inquiries were not, however,

just polite conversation, as I could

often see looks of true concern in the

questioner’s eyes. In response, I have

been telling anyone who will listen

that I am more concerned with a

problem that has not yet developed,

but which many of us feel will be

upon our profession sooner than we

might wish.

During the historic state electionof 2002, we saw a changing of the

guard and an organizationalupheaval in both the executive andlegislative branches of our govern-ment. What went undetected at thetime, however, was the fact that wemay also be witnessing a majorchange in the way we select andretain judges at every level in thisstate. Part of this change will resultfrom the 2002 elections, but federalcourt decisions at the 11th Circuitlevel and in the U.S. Supreme Courtwill also have a marked effect uponthe way Georgians pick theirjudges in the future.

For years, Georgia has had analmost de facto selection and reten-tion system, notwithstanding thefact that we are constitutionallyempowered to elect our state, supe-rior and appellate court judges. In atraditional one-party state, judicialcandidates would often be selectedfor open seats by the governor, aftervetting by the Judicial NominatingCommission, and often that judgecould serve his or her entire careeron the bench without election oropposition. Judges would intention-

4 Georgia Bar Journal

“At the beginningof the Bar year, I

requested that ourCourt Futures

Committee under-take a thoroughexamination of

the way Georgiaand other states

select/elect judges,with a view

towards recommending

possible changesfor the better.”

from

theP

resi

dent

ally retire several months before theend of their term, again permittingthe governor to appoint their suc-cessor, who would then be listed ona ballot (if challenged) as the incum-bent. In other words, the electoralsystem was traditionally and inten-tionally bypassed, with a number ofnotable exceptions who successfullycampaigned for the bench. Withinthe last 18 months, however, wehave seen a “triple witching hour,”in which an election ended one-party domination in the state ofGeorgia, the 11th Circuit eliminatedthe more stringent campaign con-duct rules enforced by the JudicialQualifications Commission, and theU.S. Supreme Court opened thedoor for judicial campaign financebattles that would ordinarily beassociated with California recallelections.

If you haven’t noticed thedecline and fall of the republic justyet, there is a reason: we haven’thad a judicial election since theconfluence of these three events.Instead of waiting to see whetherwe have a problem, or the extent towhich solutions may be proposedby the State Bar, efforts are alreadyunder way to have in place somemechanism for reform if problemsoccur in the upcoming electionsand beyond.

The Bar has responded in the past.When judicial appointment prob-lems developed during the LesterMaddox administration, the StateBar assisted then-Governor JimmyCarter in the establishment of aJudicial Nominating Commission tohelp a governor review and evaluatethe qualifications of judicial candi-dates. In 1972, after a number of judi-cial candidates ran successfully asRepublicans against Democraticincumbents as part of the Nixonlandslide over George McGovern,

the State Bar assisted in recommend-ing a change to nonpartisan judicialelections (McGovern apparently didvery little that year to beef up thecampaigns of local judicial runningmates).

At the beginning of the Bar year,I requested that our Court FuturesCommittee undertake a thoroughexamination of the way Georgiaand other states select/electjudges, with a view towards rec-ommending possible changes forthe better. Under the chairmanshipof Judge Ben Studdard, the com-mittee has devoted this year to anexamination of various method-ologies, not with an eye towardwhat could be realistically accom-plished in Georgia, but what mighthypothetically be the best systemfor any state to adopt. If problemsdevelop, the pragmatics can comelater. Aided by an extremely hard-working group of committeemembers, the Court FuturesCommittee has done a thoroughsurvey of the states, as well as areview of proposed ABA modelselection systems.

Change will not come easy. Fewstates with an elected judiciaryhave successfully changed to amerit selection system in moderntimes. Although journalists areloath to cover judicial electionsbecause they are (thankfully) lowon political rhetoric, the same jour-nalists would opine long and loudthat control of the judiciary shouldnever be taken away from thedirect mandate of the voters.

This project and the work of theCourt Futures Committee is one ofthose tasks that I knew would notbe completed during my term, butwhich has received enthusiasticsupport from the executive officersof the State Bar who will likely fol-low. Admittedly, we cannot say for

certain that the procedure is broken,but the stakes are too high to waituntil we have a full-blown predica-ment upon our hands before webegin the process of fixin’.

So far, Governor Perdue hasworked well with his new JudicialNominating Commission in theappointment of good men andwomen for judgeships recently cre-ated by the general assembly, orwhich became open because of thedeath or resignation of sittingjudges. The State Bar stands readyto help both Governor Perdue andJNC Chairman Mike Bowers in anyway we can. Further, a newlyreconstituted set of rules from theJudicial Qualifications Commissionshould also help.

In the future, we must realistical-ly investigate campaign financereform, and the return of judicialevaluation polls with the activeparticipation of lawyers through-out the state. There are things thatcan be done today to ensure thatthe elections in 2004 are both fairand high-minded, and there arethings that we can think about forthe future. In either event, the con-sequences are too great for our pro-fession to use anything less than itsbest due diligence.

February 2004 5

DepressionAnxiety/StressLife TransitionsCareer ConcernsDivorce/SeparationRelationship Conflicts

Counseling for Attorneys

Elizabeth Mehlman, J.D., Ph.D.Clinical Psychologist(404) 874-0937

Midtown Atlanta

By Cliff Brashier

The Bar Wants You ToHelp Make Better LawsFor Georgia

W ith the legisla-

tive session in

full swing, I

thought it would be appropriate to

mention an initiative by State Bar

President Bill Barwick encouraging

more lawyers to run for public office

— specifically the state legislature.

Young Lawyers DivisionPresident Andrew Jones haspledged his support to this causeand will be offering seminars tointerested YLD members on how torun for state office.

I think there is a public miscon-ception that the General Assemblyconsists mostly of lawyers. In reali-ty fewer than 17 percent of thestate’s 236 legislators are attorneys.Most people would be surprised bythat fact. With 34,880 Georgia Barmembers, we should be better rep-resented.

Lawyers have a proud tradition ofmaking a difference in our society:

24 of the 56 signers of theDeclaration of Independencewere lawyers.

31 of the 55 signers of the UnitedStates Constitution were lawyers.28 of our 43 Presidents have beenlawyers.Bill Barwick firmly believes that

the public would be well served bythe overall education, legal trainingand experience with the law thatonly Georgia lawyers can provide.

Although legislators from otherprofessions bring much neededdiversity to the General Assembly,their ideas must be transferred intolaws that are clear, unambiguousand constitutional. With fewer andfewer attorneys participating inGeorgia’s law-making process, theirimportant contributions and servic-es to their non-lawyer colleaguesare diminishing. For example, theGeorgia General Assembly does nothave a sufficient number of lawyersto fill the seats on the judicial com-mittee of the House and Senate.

So, my wish for the new year isfor more Georgia lawyers with aninterest in public service to getinvolved. The December 2003 issueof the Bar Journal profiled nineGeorgia lawyers who have chosento make this demanding butrewarding contribution. I com-mend their commitment.


“So, my wish for

the new year is

for more Georgia

lawyers with an

interest in public

service to get

involved.”

from

theE

xecu

tive

Dir

ecto

r

If you do have an interest, thereare many mentors available to you.Any of our 39 lawyer legislatorswould be happy to help. BillBarwick and Andrew Jones wouldwelcome your attendance at anupcoming YLD seminar on thistopic. I would be happy to put youin touch with the Bar’s legislativerepresentatives: Tom Boller, Rusty

Sewell, Wanda Segars and MarkMiddleton. They have a wealth ofknowledge and would be mostwilling to share it.

Aristotle said, “Law is order,and good law is good order.” I amconvinced that no one in this stateis better able to make good law andgood order than members of theState Bar of Georgia.

I hope you will thank our finegroup of current Georgia lawyerlegislators, give them your supportand consider joining them.

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).

February 2004 7

Judges and Evaluators With Prior High SchoolMock Trial Experience Needed for State Finals

Gwinnett Justice Center, Lawrenceville, March 13-14

Contact the mock trial office to volunteer!(404) 527-8779 or toll free (800) 334-6865 ext. 779

or e-mail: [email protected]

By Andrew W. Jones

Young Lawyers Give Something Back

T he holiday season has

come and gone. I hope

Santa was good to

everyone. Unfortunately, in the

state of Georgia, many families

and children don’t wake up

Christmas morning to a tree lit-

tered with shiny new bikes and

holiday goodies.

This year, many of the YLDcommittees did something tomake the holiday season morespecial for some of Georgia’s lessfortunate families. The YLDCommunity Service ProjectsCommittee partnered with FultonCounty DFACS to organize a giftdrive. The YLD volunteers helpedorganize, sort and wrap gifts thathad been donated to DFACS forthe foster children in their care.There is a special feeling thatcomes from knowing that some-thing you did will put a smile on achild’s face on Christmas morn-ing. I’m sure the volunteers of theCommunity Service Committeehad that feeling.

The YLD Community ServiceCommittee also hosted a suitdrive during the State Bar’sMidyear Meeting in Atlanta. Oldsuits and business clothing were

donated by lawyers around thestate, and then given to area shel-ters and used by homeless orneedy job seekers for job inter-views. If you didn’t get a chanceto donate your clothing this year,please save it for next year’sMidyear Meeting.

Another YLD committee,which was hard at work over theholidays, was the Women in theProfession Committee. Theysponsored a family from AtlantaLegal Aid. The sponsor familywas a grandparent who was theprimary care giver for twoteenage girls. Thanks to the gen-erosity of the volunteers on thecommittee, the family receivedeverything on their wish listsand more!

In addition to the good workdone by the YLD committees, I’msure that lawyers of all agesaround this state did things intheir community to make the hol-iday season more enjoyable forthe less fortunate. Even thoughlawyers suffer through bad jokes,negative rhetoric and poor pub-licity, we continue to give some-thing back to our communities.Very few professions do as muchas lawyers do when it comes tohelping the underprivileged.

If you would like to becomeactive in the Young LawyersDivision, now is a great time to


“This year, many

of the YLD

committees did

something to make

the holiday season

more special for

some of Georgia's

less fortunate

families.”

from

theY

LD P

resi

dent

February 2004 9

start. The YLD Spring Meetingwill be a three-day cruise to theBahamas April 16-19. Thanks tohelp from our sponsors, the cruiseonly costs $350 per person, whichincludes food and beverages.Space is limited to the first 100people to sign up and only a fewspots remain. If you are interestedin signing up for the cruise, pleasecontact Deidra Sanderson at theState Bar office.

If you cannot make it to one ofthe YLD meetings, please consid-er becoming involved in one ofthe YLD committees. The YLD hasseveral committees that do greatwork around the state.

With the help of more energeticlawyers, hopefully we can makenext year’s holiday season a littlebrighter for Georgia’s underprivi-leged families and children.

All active members will be mailed a ballot with a returnenvelope enclosed on March 5. The ballot must be returnedin that envelope to count. Only one ballot per envelope maybe enclosed, or all ballots included in the envelope will beconsidered invalid.

Online voting will open March 5, the same date that theprinted ballots will be mailed. The deadline to vote online orfor ballots to be received by mail in order to count is April 6(envelopes must be postmarked by April 6). Results will bevalidated by the election committee and will be available onApril 8.

Additionally, Feb. 23 is the last day that petitions can bereceived for non-incumbent Board of Governors posts.

If you have questions about the election or electionprocess, contact Gayle Baker, staff election liaison, at (404)527-8700.

It’s That Time Again. Don’t Forget to Vote!


Georgia GeneralAssembly Adopts“Manifest Disregard” asa Ground for VacatingArbitration Awards:

Georgia GeneralAssembly Adopts“Manifest Disregard” asa Ground for VacatingArbitration Awards: How Will Georgia Courts Treat the New Standard?

February 2004 11

By John W. Hinchey andThomas V. Burch

A rbitration offers attractive alternatives to litigation in terms of speed,

lower costs, flexibility of process and business-oriented decisions.

However, these advantages can come at the price of a legally incor-

rect decision — a result that is significantly at odds with the judicial process. Over

the last decade, state and federal courts have struggled to find an acceptable bal-

ance between these competing interests of arbitration and litigation, and their

efforts have raised an important question: To what extent should courts respect the

decisions of arbitrators?

Generally, courts may only set aside arbitration awards on the grounds listed inthe Federal Arbitration Act1 or the applicable state arbitration code. However, allfederal circuit courts2 and a few state courts3 have adopted a non-statutory excep-tion that allows a court to overturn an arbitrator’s decision if the arbitrator hasexemplified a “manifest disregard” of the law.4

The manifest disregard standard for vacating arbitration awards originated fromthe U.S. Supreme Court’s decision in Wilko v. Swan,5 and one court has sincedefined it as an arbitrator’s “willful inattentiveness to the governing law.”6

However, in the fifty years following Wilko, only two federal courts have vacatedan arbitration award based on the manifest disregard standard.7 This may be attrib-uted to problems associated with distinguishing “manifest disregard” from “ordi-nary legal error.”8 The Wilko Court was the first to make this distinction, but it didnot give explicit guidelines for when or how lower courts should do the same. As aresult, most courts have taken different approaches to, and have reached differentresults after, implementing the manifest disregard standard.9

In 2002, after several years of tentative lower court decisions, the GeorgiaSupreme Court, in Progressive Data Systems v. Jefferson Holding Corporation, heldthat manifest disregard is not a proper ground for vacatur in Georgia.10 The courtemphasized that Georgia’s Arbitration Code does not implicitly contain the mani-fest disregard standard, and that Georgia courts should not liberally interpret theCode in a vain attempt to find it.11 In 2003, however, the Georgia GeneralAssembly amended the Georgia Arbitration Code to specifically include manifestdisregard as a ground for vacating arbitration awards.12 Governor Sonny Perduesigned the act in June of 2003, effectively nullifying the Georgia Supreme Court’sdecision in Progressive Data Systems, and thereby making Georgia the first state inthe country to statutorily adopt the manifest disregard standard.13 Nevertheless,because the new act does not instruct courts regarding how to apply manifest dis-regard, it is uncertain whether Georgia courts will adopt a broad or narrow inter-pretation of the doctrine.

ARBITRAL DISCRETION AND THE DOCTRINEOF “MANIFEST DISREGARD”

As the time and expenses involved in litigating a case have risen in recent years,public policy has dictated an increasing emphasis on more efficient alternatives,including arbitration. Arbitration agreements commit parties to accept the deci-sions of a neutral arbitrator on questions of fact, contract, and law that may arise

during the course of a businessrelationship.14 Win or lose, an arbi-tration agreement is an enforceablecontractual commitment specifical-ly entered into, among other rea-sons, to avoid the more expensiveoption of litigation.15

In the interest of speed and eco-nomic efficiency, courts have his-torically given broad deference toarbitrators’ decisions. Arbitratorsare not required to provide arecord of their rationale,16 andcourts may not review an arbitra-tor’s award solely on its merits.17

This arbitral discretion is notentirely unfettered, however; arbi-trators are still bound to follow thelaw.18 Accordingly, judicial reviewof arbitration awards must bestringent enough to enforce arbi-trators’ compliance with the appli-cable laws, while respecting thestrong federal policy in favor ofdeference to arbitration.19

Courts that allow application ofthe manifest disregard standardgenerally follow a two-part test indetermining whether to vacate anaward under this standard. First, acourt must look to whether the arbi-trator knew the applicable law andrefused to apply it. Second, the courtattempts to determine whether thelaw was explicit and clearly applica-ble to the case.20 Thus, this standardrequires more than a mere error ormisunderstanding of the law.Instead, the arbitrator must havemade a conscious decision to ignoreknown and applicable legal princi-ples.21 As one court explained,“‘[A]s long as the arbitrator is evenarguably construing or applying thecontract and acting within the scopeof his authority,’ a court’s convictionthat the arbitrator made a seriousmistake or committed grievouserror will not furnish a satisfactorybasis for undoing the decision.”22

Further, determining whether anarbitrator manifestly disregardedthe law can be a very difficult taskbecause arbitrators do not have todisclose the reasons behind theirawards. When an arbitrator fails toexplain an award, a reviewingcourt can only infer from the recordwhether the arbitrator knew aboutthe governing legal principle butdecided to ignore it.23 In such acase, the court must confirm thearbitration award even if theground for the decision is based onerror of fact or law.24

As one can see, courts that allowfor the vacatur of an award basedon an arbitrator’s manifest disre-gard of the law have set an extreme-ly high standard for review.Because of the strong public policythat exists in favor of arbitration,courts give great deference to arbi-trators’ decisions, and the judicialinquiry under the manifest disre-gard standard is quite limited.25

RATIONALE FOR APPLYING,OR REFUSING TO APPLY, THE MANIFESTDISREGARDSTANDARD

Courts evaluating whether toadopt the manifest disregard stan-dard often reach different out-comes because of conflictingphilosophies regarding two pri-mary issues. First, courts disagreeover the amount of deference theyshould grant to arbitrators’ deci-sions.26 Giving greater deference tothe arbitrator will result in a moreefficient judicial system. However,subjecting the arbitrators’ decisionsto higher scrutiny will encourage

arbitrators to comply with therequirements of the law.

Second, courts hold differingopinions on their ability to vacatearbitration awards on grounds thatare not specifically listed in theapplicable arbitration acts. Somestate courts have refused to adoptthe manifest disregard standardbecause it is not mentioned in theirrespective state laws on arbitra-tion.27 All of the federal circuits,however, have adopted the stan-dard as a ground for vacating arbi-tration awards,28 either acceptingthat manifest disregard is an offi-cial creation of the judiciary,29 orfinding that manifest disregard isimplicit in the language of theFederal Arbitration Act.30

THE 11THCIRCUIT’SAPPLICATION OFTHE MANIFESTDISREGARDSTANDARD

The 11th Circuit adopted twoother non-statutory grounds forvacating arbitration awards before itaccepted manifest disregard, and itonly accepted manifest disregardwhen faced with a case where oneparty “explicitly urged [the arbitra-tor] to disregard the law.”31 InMontes v. Shearson Lehman Brothers,the court vacated an arbitrationaward because Shearson’s attorneyconvinced the arbitrator to rule infavor of his client by saying: “Iknow, as I have served many timesas an arbitrator, that you as an arbi-trator are not ... strictly bound bycase law and precedent. You havethe ability to do what is right, whatis fair and proper, and that’s whatShearson is asking you to do.”32 The


11th Circuit analyzed the appropri-ateness of overturning an arbitrationaward under such circumstancesand “conclude[d] that a manifestdisregard for the law ... can consti-tute grounds to vacate an arbitrationdecision.”33 Nevertheless, the 11thCircuit emphasized the narrowscope of the manifest disregard stan-dard and noted that it would notreverse arbitrators’ decisions formere errors or misinterpretations ofapplicable legal principles.34 Thecourt only applied the standard inMontes because “the arbitrators rec-ognized that they were told to disre-gard the law.”35

The most interesting aspect ofMontes, however, is that in order tofind that the arbitrators manifestlydisregarded the law, the 11thCircuit had to presume that thearbitrators actually followed theadvice of Shearson’s counsel.36

Thus, the court found “manifestdisregard” without any type ofadmission by the arbitrators thatthey consciously ignored the law.37

Once the court determined that thearbitration decision was legallyincorrect, the statements ofShearson’s counsel created a pre-sumption that the arbitratorsknowingly disregarded applicablelegal principles. Because there wasno evidence in the record to refutethis presumption, the court vacatedthe arbitration award.38

A potential problem with the11th Circuit’s presumption is that,if construed broadly, it could beabused by the courts.39 Under such

a standard, courts could find thatvirtually any improper evidencecreates a presumption of arbitralwrongdoing. If there is no evidencein the record to refute the presump-tion once it arises (which will usual-ly be the case because arbitratorsnormally do not provide writtenopinions), the court could freelyvacate the award. However, theMontes court emphasized that man-ifest disregard is a narrow groundfor vacatur and only adopted thestandard where the record showedevidence that one party explicitlyurged the arbitrator to ignore thelaw.40 Therefore, because such fac-tual circumstances are rare, the like-lihood of abuse in the 11th Circuit(i.e., applying Montes without legit-imate evidence of arbitral wrong-doing) should be minimal.41

GEORGIA’STREATMENT OFTHE MANIFESTDISREGARD STANDARD

For nearly 10 years, the GeorgiaSupreme Court and the GeorgiaCourt of Appeals have reached dif-fering opinions regarding theapplicability of the manifest disre-gard standard. In 1994, the GeorgiaCourt of Appeals accepted theprinciple that “an arbitrator’s deci-sion must be upheld unless it iscompletely irrational or it consti-tutes a manifest disregard of thelaw.”42 Two years later, however,

the Georgia Supreme Court statedthat courts should strictly construethe Georgia Arbitration Code43

and that the four statutorygrounds listed under Section 9-9-13(b) of the Code were the exclu-sive grounds for vacating an arbi-tration award.44 Accordingly, theCourt announced that a court mayonly vacate an arbitration award ifthe rights of a party were preju-diced by: (1) corruption, fraud, ormisconduct, (2) a partial arbitrator,(3) an arbitrator’s overstepping hisauthority, or (4) a court’s failure tofollow procedure.45

In 2002, the Georgia SupremeCourt issued another opinion onthe validity of manifest disregardas a ground for vacatur. ProgressiveData Systems v. Jefferson RandolphCorp. involved an arbitrator’s deci-sion to award future licensing feesas damages for a breach of contract.Even though the arbitrator recog-nized that future licensing feeswere an unenforceable penalty, heawarded them anyway.46 TheGeorgia Court of Appeals vacatedthe award by saying that the arbi-trator manifestly disregarded thelaw, and it held that Section 9-9-13(b)(3) of the Georgia ArbitrationCode implicitly contained manifestdisregard as a ground forvacatur.47 However, the GeorgiaSupreme Court reversed the Courtof Appeals’ decision, emphasizingthat manifest disregard is notimplicit within Section 9-9-13(b)(3),which section only allows courts tooverturn arbitration awards whenarbitrators overstep their authori-ty.48 The Georgia Supreme Courtnoted that “[o]verstepping thearbitrator’s authority ... only comesinto play when an arbitrator deter-mines matters beyond the scope ofthe case,” and does not include theconcept of manifest disregard.49


For nearly 10 years, the Georgia Supreme

Court and the Georgia Court of Appeals have

reached differing opinions regarding the appli-

cability of the manifest disregard standard.

Despite the Georgia SupremeCourt’s efforts to exclude manifestdisregard as a ground for vacatingarbitration awards, the standardnow exists in the state because ofrecent actions taken by theGeorgia General Assembly. InJanuary 2003, a bill was intro-duced in the Georgia House ofRepresentatives to specificallyinclude manifest disregard as oneof the grounds for vacatur con-tained in Section 9-9-13(b).Although that bill later died in theSenate,50 a second version success-fully passed through both housesin April 2003. The governor thensigned the bill into law on June 4,2003,51 making Georgia the firststate to legislatively adopt themanifest disregard standard.Therefore, effective July 1, 2003,“manifest disregard” is a validground for vacating arbitrationawards in Georgia.

Because the General Assemblyhas enacted manifest disregard aspart of Georgia’s ArbitrationCode, Georgia courts must nowdecide how to apply the standardto the vacatur of arbitrationawards. The language of theamendment to the GeorgiaArbitration Code does not givecourts any instruction on how todo so. The Code simply statesthat courts should overturn arbi-tration awards if the rights of aparty were prejudiced by “[t]hearbitrator’s manifest disregard ofthe law.”52 Therefore, Georgiacourts are free to interpret thebreadth of the new manifest dis-regard standard.

WHAT TO EXPECTConsidering the issues raised in

state and federal courts over howto apply manifest disregard as aground for vacatur, no clear

guidelines exist for how Georgiacourts should treat the GeneralAssembly’s recent amendment tothe Arbitration Code. One mightargue that if the GeneralAssembly had wanted to con-strain arbitrators to be strictlybound by applicable law, theamendment could have beenmuch more intentional. For exam-ple, the General Assembly couldhave enacted a specific ground forvacatur that the arbitrators “failedor refused to follow applicablelaw.” Instead, the legislatureincorporated into the GeneralArbitration Code a checkeredjudicial doctrine most often inter-preted by other state and federalcourts to have a limited reach.53

Indeed, previous 11th Circuit andGeorgia Court of Appeals deci-sions dealing with the issue ofmanifest disregard have attempt-ed to place severe limitations on acourt’s authority to review themerits of an arbitrator’s decision,and these limitations may well beinstructive as to how Georgiacourts will treat the standard.

If Georgia courts continue withthis trend and treat the manifestdisregard standard as they have inthe past, the scope of the manifestdisregard doctrine in Georgia willbe very limited.

John W. Hinchey is apartner at King &Spalding LLP and leadsthe firm’s Constructionand ProcurementPractice Group. His

experience includes four years inpublic law, having served asAssistant Attorney General inGeorgia, and as a special counselto two governors’ commissions tostudy and propose reforms to thejudicial system.

Thomas Burch is anassociate at King &Spalding LLP. Heearned his J.D. fromFlorida State University.

Endnotes1. See Federal Arbitration Act, 9

U.S.C. §10 (2000). The FAA onlyincludes the following as groundsfor vacatur: fraud or corruption,partiality of the arbitrator, failureto follow applicable procedures,and overstepping the arbitrator’sauthority. 9 U.S.C. § 10(a) (2000).The federal circuits are split onwhether parties may contractuallyexpand judicial review under theFAA. See generally Victoria L. C.Holstein, Co-opting the FederalJudiciary: Contractual Expansion ofJudicial Review of Arbitral Awards,12 WORLD ARB. & MEDIATIONREP. 276 (2001).

2. See Advest, Inc. v. McCarthy, 914F.2d 6, 9 n5 (1st Cir. 1990);Halligan v. Piper Jaffray, Inc., 148F.3d 197, 204 (2d Cir. 1998); UnitedTransp. Union Local 1589 v.Suburban Transit Corp., 51 F.3d376, 380 (3d Cir. 1995); Remmey v.Paine Webber, Inc. 32 F.3d 143, 149(4th Cir. 1994); Williams v. CignaFinancial Advisors, 197 F.3d 752,758-59 (5th Cir. 1999); M & C Corp.v. Erwin Behr GmbH & Co., KG,87 F.3d 844, 850-51 (6th Cir. 1996);Health Servs. Mgmt. Corp. v.Hughes, 975 F.2d 1253, 1267 (7thCir. 1992); Lee v. Chica, 983 F.2d883 (8th Cir. 1993); Michigan Mut.Ins. v. Unigard Sec. Ins., 44 F.3d826, 832 (9th Cir. 1995); ARWExploration Corp. v. Aguirre, 45F.3d 1455, 1463 (10th Cir. 1995);Montes v. Shearson LehmanBrothers, 128 F.3d 1456, 1461-62(11th Cir. 1997); Sargent v. PaineWebber Jackson & Curtis, Inc. 882F.2d 529, 532-33 (D.C. Cir. 1989).

3. See Swentor v. Swentor, 520 S.E.2d330, 338 (S.C. Ct. App. 1999) (“Thecourt may vacate the award onlyupon the establishment of one ofthe grounds set forth in section 15-48-130, or the rarely applied non-statutory ground of ‘manifest dis-regard or perverse misconstructionof the law.’”); Geissler v. Sanem,949 P.2d 234, 237-38 (Mont. 1997)(accepting manifest disregard as awell reasoned approach to vacat-


ing arbitration awards); Wichinskyv. Mosa, 847 P.2d 727, 731 (Nev.1993) (“When an arbitrator mani-festly disregards the law, a review-ing court may vacate an arbitrationaward”); Garrity v. McCaskey, 612A.2d 742, 746-47 (Conn. 1992)(accepting manifest disregard as aground for vacatur); Board ofEduc. v. Prince George’s CountyEducator’s Ass’n, 522 A.2d 931,938-41 (Md. 1987) (passing on thequestion of whether manifest dis-regard is a standard for vacaturunder statutory law but statingthat “[u]nder Maryland commonlaw standards for reviewing arbi-tration awards, however, we holdthat an award is subject to beingvacated for a ‘palpable mistake oflaw or fact ... apparent on the faceof the award’ or for a ‘mistake sogross as to work manifest injus-tice.’”).

4. 1 DOMKE ON COMMERCIALARBITRATION § 33.08 (2003)[hereinafter DOMKE].

5. 346 U.S. 427, 436 (1953) overruled onother grounds by Rodriguez deQuijas v. Shearson/AmericanExpress, Inc., 490 U.S. 477 (1989);see also First Options of Chicago,Inc. v. Kaplan, 514 U.S. 938, 942(1995) (approving of the manifestdisregard standard in Wilko).

6. ARW Exploration Corp. v.Aguirre, 45 F.3d 1455, 1463 (10thCir. 1995).

7. DOMKE, supra note 4, at § 33.08;see also 4 IAN R. MACNEIL, ETAL., FEDERAL ARBITRATIONLAW §40.7.1 (Supp. 1999) [here-inafter MACNEIL ET AL.] (“It isnearly impossible to find FAAarbitration decisions where appli-cation of the doctrine has resultedin upsetting of an award.”).

8. See Michael P. O’Mullan, Note,Seeking Consistency in JudicialReview of Securities Arbitration: AnAnalysis of the Manifest Disregard ofthe Law Standard, 64 FORDHAM L.REV. 1121, 1127 (1995).

9. Compare Advest Inc. v. McCarthy,914 F. 2d 6, 8-9 (1st Cir. 1990) (stat-ing that the First Circuit willenforce the manifest disregardstandard where it is clear that thearbitrator knew the applicable lawand ignored it) with Halligan v.Piper Jaffray, Inc., 148 F.3d 197,204 (2d Cir. 1998) (vacating anarbitration award based on the

arbitrator’s manifest disregard ofthe law and facts).

10. 568 S.E.2d 474, 475 (Ga. 2002).11. Id. at 475.12. See GA. HB 792 (2003).13. GEORGIA GENERAL ASSEMBLY:

SIGNED BY THE GOVERNORLIST, available athttp://www.legis.state.ga.us/legis/2003_04/leg/govsign.html (lastvisited June 23, 2003).

14. Stephen L. Hayford, Law inDisarray: Judicial Standards forVacatur of Commercial ArbitrationAwards, 30 GA. L. REV. 731, 740(1996).

15. Id. at 741.16. See Sobel v. Hertz, Warner & Co.,

469 F.2d 1211, 1215 (2d Cir. 1972)(stating that forcing arbitrators toexplain their award even whengrounds for it can be gleaned fromthe record will unjustifiably dimin-ish whatever efficiency the processachieves).

17. See Montes v. Shearson LehmanBros., 128 F.3d 1456, 1461 (11th Cir.1997) (“An arbitration board thatincorrectly interprets the law hasnot manifestly disregarded it. Ithas simply made a legal mistake.To manifestly disregard the law,one must be conscious of the lawand deliberately ignore it.”).

18. See id. at 1459-60 (“By agreeing toarbitrate a statutory claim, a partydoes not forego the substantiverights afforded by the statute; itonly submits to their resolution inan arbitral, rather than a judicial,forum.”).

19. See Williams v. Cigna FinancialAdvisors, 197 F.3d 752, 761 (5thCir. 1999); MACNEIL ET AL., supranote 7, at § 40.7.2.1.

20. DOMKE, supra note 4, at § 33.08. 21. Id. at § 33.08; see also MACNEIL ET

AL., supra note 7, at § 40.7.2.1(expounding on the principles ofthe manifest disregard standard).

22. Advest, Inc. v. McCarthy, 914 F.2d6, 9 (1st Cir. 1990) (quoting UnitedPaper Workers Int’l Union v.Misco, Inc., 484 U.S. 29, 38 (1987)).

23. See DOMKE, supra note 4, at §33.08.

24. Id.; but see Halligan v. PiperJaffray, Inc., 148 F.3d 197, 204 (2dCir. 1998) (vacating an arbitrationaward where the arbitrator mani-festly disregarded the evidence).

25. See MACNEIL ET AL., supra note7, at § 40.7.2.1.

26. See id. at § 40.7.2.5 (discussing thedegree to which courts shouldallow arbitrators to supersedeapplicable law with their ownideas of justice).

27. See, e.g., Warbington Const., Inc. v.Franklin Landmark LLC, 66S.W.3d 853, 859 (Tenn. Ct. App.2001) (refusing to adopt manifestdisregard as a basis for vacatingarbitration awards).

28. See Williams v. Cigna FinancialAdvisors, 197 F.3d 752, 759 (5thCir. 1999) (“Accordingly, each ofthe other numbered federal circuitcourts and the D.C. Circuit haverecognized manifest disregard ofthe law as either an implicit ornonstatutory ground for vacaturunder the FAA.”). See also casescited supra note 2.

29. See, e.g., Advest, Inc. v. McCarthy,914 F.2d 6, 9 n5 (1st Cir. 1990)(“The lane of review that hasopened out of this [manifest disre-gard] language is a judicially creat-ed one, not to be found in 9 U.S.C.§ 10.”).

30. See, e.g., M & C Corp. v. ErwinBehr GmbH & Co., KG, 87 F.3d844, 850-51 (6th Cir. 1996)(“Although not mentioned in thestatute itself, an award may bevacated under the FederalArbitration Act if the arbitratorexhibits a manifest disregard of thelaw.”); Progressive Data Systemsv. Jefferson Randolph Corp., 568S.E.2d 474, 475 (Ga. 2002) (Carley,J., dissenting) (“I strongly believethat the grounds set forth in thatstatute implicitly incorporate theconcept of ‘manifest disregard ofthe law.’ ”).

31. Montes v. Shearson LehmanBrothers, 128 F.3d 1456, 1458 (11thCir. 1997) (recognizing that the11th Circuit previously adopted“arbitrary and capricious,” and“contrary to public policy” asgrounds for vacating an arbitrationaward before accepting the mani-fest disregard standard).

32. Id. at 1459.33. Id. at 1461-62.34. Id. at 1460-62.35. Id. at 1462.36. Stephen L. Hayford, Reining in the

“Manifest Disregard” of the LawStandard: The Key to Restoring Orderto the Law of Vacatur, 1998 J. DISP.RESOL. 117, 129 (1998) [hereinafterHayford II].

February 2004 17

37. Id. 38. See Montes, 128 F.3d at 1461-64. 39. See Hayford II, supra note 36, at

129-31 (discussing a court’s abilityto “bootstrap” its way to findingmanifest disregard of the law).

40. See Montes, 128 F.3d at 1460-62. 41. But see Hayford II, supra note 36, at

128-32 (arguing that the 11thCircuit’s decision in Montes is abroad application of the manifestdisregard standard and that it willgive courts too much discretion inreviewing arbitration awards).

42. Amerispec Franchise v. Cross, 452S.E.2d 188, 190 (Ga. Ct. App. 1994)(citation omitted).

43. GA. CODE ANN. § 9-9-1 et seq.(2002).

44. Greene v. Hundley, 468 S.E.2d 350,352 (Ga. 1996); see also ProgressiveData Systems, Inc. v. JeffersonRandolph Corp., 568 S.E.2d 474,475 (Ga. 2002) (holding thatGeorgia courts cannot vacate anarbitrator’s award based on mani-fest disregard of the law).

45. See Greene, 468 S.E.2d at 352 (citingGA. CODE ANN. § 9-9-13(b)(1)-(4)(2002)).

46. See Progressive Data Systems, 568S.E.2d at 474.

47. Jefferson Randolph Corp. v.Progressive Data Systems, 553S.E.2d 304, 309 (Ga. Ct. App. 2001)rev’d by Progressive Data Systems,Inc. v. Jefferson Randolph Corp.,568 S.E.2d 474 (Ga. 2002).

48. Progressive Data Systems, 568 S.E.2dat 475.

49. Id.50. See GA. HB 91 (2003).51. See GA. HB 792 (2003); GEORGIA

GENERAL ASSEMBLY: SIGNEDBY THE GOVERNOR LIST, avail-able athttp://www.legis.state.ga.us/legis/2003_04/leg/govsign.html (lastvisited June 23, 2003).

52. See GA. HB 792 (2003).53. Most courts admit that manifest

disregard is a limited ground forvacatur. Some, however, haveadopted a very broad interpreta-tion.


Lawyer Assistance ProgramThis free program provides confidential assistance to Bar mem-bers whose personal problems may be interfering with their abil-ity to practice law. Such problems include stress, chemicaldependency, family problems and mental or emotional impair-ment. The program also serves the families of Bar members,law firm personnel and law students.

If you have a personal problem that is causing you significantconcern, the Lawyer Assistance Program can help. Please feelfree to call one of the volunteer lawyers listed below. All callsare confidential. We simply want to help you.

Hotline: (800) 327-9631. All Calls are Confidential.

Area Committee Contact PhoneAlbany H. Stewart Brown (229) 420-4144Athens Ross McConnell (706) 369-7760Atlanta Melissa McMorries (404) 688-5000Atlanta Brad Marsh (404) 874-8800Atlanta/Decatur Ed Furr (404) 284-7110Atlanta/Jonesboro Charles Driebe (770) 478-8894Cornelia Steve Adams (770) 778-8600Fayetteville Wiley Glen Howell (770) 460-5250Hazelhurst Luman Earle (478) 275-1518Macon Bob Berlin (478) 477-3317Macon Bob Daniel (912) 741-0072Norcross Phil McCurdy (770) 662-0760Savannah Tom Edenfield (912) 234-1568Valdosta John Bennett (229) 333-0860Waycross Judge Ben Smith (912) 449-3911Waynesboro Jerry Daniel (706) 554-5522

February 2004 19

Imagine, if you will, the situa-

tion of the mother of a venti-

lator-dependent child. This

mother is in disagreement with a

proposal to reduce the skilled nurs-

ing care authorized for her child by

a state agency. As is her right, and in

the interest of her child’s health, the

mother files an administrative

appeal of the agency’s decision.

Unfortunately, the child’s health is

precarious, and the mother is

uncomfortable leaving the bedside

to voice her concerns at the adminis-

trative hearing.

In special circumstances such asthese, administrative law judges,employed by the Georgia Office ofState Administrative Hearings,bring a forum to the litigants. At

Administrative Law Judges“Ride the Circuit” to ProvideGeorgians with a Day in CourtBy Judge Lois F. Oakley

GBJ feature

times, an unconventional locationis required to provide Georgianswith a “day in court.” Whether thecourtroom is a living room or anursing home bedside, OSAHjudges go the distance to provideGeorgians with an impartial andefficient forum to resolve disputesinvolving state government.

ORIGIN OF OSAHOSAH judges travel throughout

the state to preside over adminis-trative hearings. This practice isreminiscent of those judges who“rode the circuit” in days past.Interestingly, OSAH and its cadreof administrative law judges is arelatively modern creation.

In 1994, OSAH was created by thelegislature as a quasi-judicial bodywithin the executive branch ofstate government. Prior to thisinnovative legislation, manystate agencies provided dueprocess internally. Agencyemployees were charged withreviewing the decisions of theircoworkers.

With the establishment ofOSAH, the legislature provid-ed Georgians with an inde-pendent entity for the reviewof disputed agency decisions.This central panel of adminis-trative adjudicators was creat-ed to provide a structural andphysical separation betweenagency decision makers andthe review of those decisions.

Widely perceived as foster-ing impartiality, accountabili-ty and efficiency, the “centralpanel” model of administra-tive adjudication has beenadopted by 26 states. Enablinglegislation is pending in twoadditional states. SteveGottlieb, the executive direc-tor of the Atlanta Legal Aid

Society, has remarked, “Many ofour clients appeal actions of stateagencies. Atlanta Legal Aid feelsthat it is far preferable for theadministrative law judges atOSAH to conduct hearings onthese appeals rather than employ-ees of the very agency whoseaction is being contested.”

OSAH CASESThroughout the state, OSAH

judges adjudicate disputed agencydecisions. The provision of accessi-ble, neutral hearing sites in thestate’s 159 counties is a dauntingchallenge. OSAH continues to ben-efit from the use of generouslydonated courtrooms throughoutGeorgia in which its travelingjudges conduct hearings.

Efficiency, as well as impartiali-ty, is a hallmark of administrativeadjudication in Georgia. At anyone time, only a fraction of OSAH’spending cases have been awaitingdisposition for more than 90 days.Moreover, the average case is adju-dicated in less than six weeks.

Much of OSAH’s case loadinvolves pro se litigants. Thesecases challenge OSAH judges withthe dual tasks of active listeningand full development of the record.OSAH judges are vested with animportant responsibility — that is,the creation and maintenance of ahearing environment in which thesmallest, most inarticulate voice isrespectfully heard.

Each OSAH judge is responsiblefor a vast array of cases. At last


Office of State Administrative Hearing Geographic Distribution of fiscal year 2003 Cases

count, OSAH was referred over300 types of cases. Much of thecase load consists of administra-tive appeals of license suspensions,public assistance determinations,and child support commitments.

OSAH judges routinely adjudi-cate contentious matters involvingcomplex and sensitive issues. Thesecases include resolution of environ-mental issues, professional licens-ing complaints, special educationmatters, labor and employmentconcerns, and election disputes, aswell as real estate, tax and con-sumer fraud matters. These casestypically involve extensive prehear-ing practice, extended hearings andlengthy written decisions.

MEDIATION ANDALTERNATIVE DISPUTERESOLUTION

Parties appearing before OSAHare encouraged to participate inalternative dispute resolution.Mediations and other alternativedispute resolution techniques areless formal and are imbued withthe flexibility to produce meaning-ful resolution of disputes. OSAHemploys several administrativelaw judges who are certified asmediators by the Georgia Office ofDispute Resolution.

OSAH JUDGESOSAH judges bring many talents

to the task of administrative adju-dication.

The diversity of professionalexperiences shared by OSAHadministrative law judges is avaluable resource. As you mayimagine, the analytical approachof a former prosecutor is, at times,quite different from the perspec-tive of a former defense attorney.The dialogue between a formerlegal aid attorney and a retiredprivate practitioner can proveinsightful to both. Provocativeexchanges among OSAH judgesstrengthen the thoughtfulness ofthe administrative adjudicationprocess in Georgia.

OSAH judges mirror the culturaland ethnic diversity of the state. Thediversity among the OSAH judgesis an important facilitator of empa-thetic listening. The relational skillsthat develop from this diversitybenefit those Georgians who voicegrievances about their state govern-ment to OSAH judges. OSAHemploys both judges and staff whoare competent Spanish speakers.

While administrative law judgesare sometimes referred to as the“hidden judiciary,” OSAH judgeshave implemented nationally rec-ognized programs to improveadministrative adjudication inGeorgia. In 2002, OSAH piloted a

program to expedite the establish-ment of paternity and child sup-port orders. The program has metwith enormous success and hasbeen recognized in the local pressas an innovative process benefitinghundreds of children without plac-ing a burden on the judicial system.

Judicial outreach to communitiesacross the state is an expectation ofeach OSAH judge. Recently, OSAHlaunched a collaborative effort withthe assistance of the Governor’sOffice of Highway Safety to combatthe destructiveness of drinking anddriving. Georgia middle school stu-dents will benefit from an entertain-ing program about the dangerousconsequences of destructive driv-ing decisions.

PRACTICE TIPSHearings held by OSAH judges

are governed by the GeorgiaAdministrative Procedures Actand OSAH rules. OSAH rulesprovide for a practice similar tothat provided by the CivilPractice Act, and are available forreview at OSAH’s Web site,www.ganet.org/osah. These rulesare designed to provide unifor-mity, flexibility and ease of usefor litigants. Model forms arealso available at the OSAH Website, and answers to frequentlyasked questions appear in bothEnglish and Spanish.

Complex cases may produceextensive prehearing motions. Incertain circumstances, OSAH judgesrequire the exchange of documentsand witness lists prior to an eviden-tiary hearing. Subpoenas are avail-


OSAH provides a structure for ensuring that

state agencies operate in accordance with

established laws, rules and procedures.

While administrative law judges are some-

times referred to as the “hidden judiciary,”

OSAH judges have implemented nationally

recognized programs to improve administra-

tive adjudication in Georgia.

able to compel attendance at OSAHhearings. The rules of evidenceapplied in OSAH hearings are simi-lar to those in non-jury civil trials.

NATIONAL RECOGNITION

The Office of State Administra-tive Hearings has attracted nation-al recognition. Its novel approachesto case management were the topicof a continuing judicial educationseminar at the Seattle UniversitySchool of Law in July 2003. InSeptember 2003, OSAH hosted anational conference for chief stateadministrative judges to share itsinnovative case management prac-tices. Plans are under way for thepresentation of a workshop at the

2004 annual meeting of theAmerican Bar Association inAtlanta next August.

FULFILLING ITS MISSION

In 1994, the Georgia GeneralAssembly created a mechanism toprovide Georgia citizens with con-fidence in the integrity of state gov-ernment. OSAH provides a struc-ture for ensuring that state agen-cies operate in accordance withestablished laws, rules and proce-dures. Also, OSAH provides animpartial forum in which partiesmay contest actions taken by stateagencies in a fair, respectful, timelyand professional manner.

Judge Lois Oakleyhas served as the chiefstate administrativelaw judge for theGeorgia Office of

State Administrative Hearingssince 2000. Under her direction,this state agency has become ahigh-performing organizationproviding excellence in customerservice to Georgia. She has 30years of practical legal experiencein the private and public sectors— 20 years of which have been inthe field of administrative adjudi-cation. She has served as both anattorney in private practice aswell as an assistant attorney gen-eral for the state.

February 2004 23

T he use of computers has

created a new universe of

discoverable documents.

Businesses now use computers to cre-

ate and store documents, send e-

mails, and make business deals. Not

surprisingly, litigants are becoming

increasingly aware of the information

hiding in these electronic files and the

treasures to be found there. But

because of the potential amount of

data, responding to a request for elec-

tronic data can be costly, time-con-

suming, and difficult for the respond-

ing party, begging the question,

“Who should pay for all of this?”

With the advent of electronic datadiscovery, the answer to this ques-tion dwells in an evolving body oflaw, which tries to identify instanceswhere the costs of electronic discov-ery requests should be shifted fromthe responder to the requestor.Arguably, nowhere has this issueattracted more attention than in astring of recent cases in the UnitedStates District Court for the SouthernDistrict of New York, captioned


Alleviating the Pain of Electronic Discovery:Prospective Consideration of the Zubulake FactorsBy John Livingstone

GBJ feature

Zubulake v. UBS Warburg LLC, 217F.R.D. 309 (S.D.N.Y. May 13, 2003)(Zubulake I), Zubulake v. UBSWarburg LLC, 2003 WL 21087136(S.D.N.Y. May 13, 2003) (ZubulakeII),1 Zubulake v. UBS Warburg LLC,216 F.R.D. 280 (S.D.N.Y. July 24,2003) (Zubulake III), and Zubulakev. UBS Warburg LLC, 2003 WL22410619 (S.D.N.Y. Oct. 22, 2003)(Zubulake IV).

Zubulake sued UBS for genderdiscrimination, failure to promote,and retaliation, all under federal,state and city law. To support herclaim, she sought discovery of elec-tronic data only accessible throughdata retrieval of UBS’s backuptapes. UBS argued that Zubulakeshould pay for the costs of restor-ing and producing these tapes.Using the facts in Zubulake as a“textbook example of the difficultyin balancing the competing needsof broad discovery and manage-able costs,”2 the court created aframework that identifies (1) whena court should consider cost-shift-ing and (2) when the allocation ofelectronic discovery costs shouldshift from the respondent to therequesting party.

WHEN TO CONSIDERCOST-SHIFTING?

Under the traditional presump-tion, the responding party bears theexpense of complying with discov-ery requests. Fed. R. Civ. P. 26(c),however, provides that a respondingparty may request a protective orderfor discovery requests that run afoulof rule 26(b)(2), which places limita-tions on the scope of discovery. Aprotective order may condition dis-covery on the requesting party’spaying some or all of the discoverycosts. Thus, the first question in anycost-shifting analysis is whether toconsider cost-shifting at all, that is, is

the discovery request unduly bur-densome or cost prohibitive?

Whether responding to therequested electronic discovery isunduly burdensome or prohibi-tively expensive turns primarily onwhether the electronic data is keptin an accessible or inaccessible for-mat. To decide this, “it is necessaryto thoroughly understand theresponding party’s computer sys-tem, with respect to both activeand stored data.”3 This allows thecourt to classify the electronic datainto five categories: (1) active,online data, (2) near-line data, (3)offline storage/archives, (4) back-up tapes, and (5) erased, fragment-ed, or damaged data.4 The firstthree categories of data are typical-ly considered accessible, while cat-egories (4) and (5) are typicallyconsidered inaccessible.5 Becauseelectronic data in categories (4) and(5) is not readily useable, produc-tion of the data is potentially bur-densome and expensive. Thus, thecourt found that cost-shifting maybe considered only when inaccessi-ble data, such as back-up tapes anderased, fragmented, or damageddata, is sought.6

WHEN IS COST-SHIFTINGAPPROPRIATE?

After deciding that cost-shiftingmay be considered, the court thencreated a seven-factor test to deter-mine whether cost-shifting isappropriate. This seven-factor testis “designed to simplify applica-

tion of the Rule 26(b)(2) propor-tionality test in the context of elec-tronic data and to reinforce the tra-ditional presumptive allocation ofcosts.”7 The following seven fac-tors should be considered,“weighted more or less in the fol-lowing order:”

The extent to which the request isspecifically tailored to discover rel-evant information; The availability of such informa-tion from other sources; The total cost of production,compared with the amount incontroversy;

February 2004 25

Whether responding to the requested elec-

tronic discovery is unduly burdensome or

prohibitively expensive turns primarily on

whether the electronic data is kept in an

accessible or inaccessible format.

The total cost of production, com-pared with the resources availableto each party; The relative ability of each partyto control costs and its incentiveto do so; The importance of the issues atstake in the litigation; and The relative benefits to the partiesof obtaining the information.8The first two factors together

constitute the “marginal utilitytest” and indicate how useful thediscovery will be to deciding theissues in the case. These two fac-tors are weighted the most heavilyin the cost-shifting analysis,because they address the relevanceof the requested discovery.9 Themore likely it is that the requestedinformation contains informationrelevant to a claim or defense, themore fair it is that the respondingparty search at its own expense,and vice versa.

The second group of factorsincludes factors (3), (4) and (5) andaddresses cost issues. The secondgroup of factors asks the questions:“How expensive will this produc-tion be?” and, “Who can handlethat expense?”10 Factor (6)addresses the importance of theissues and “will only rarely comeinto play,”11 while factor (7) is theleast important, as “it is fair to pre-sume that the response to a discov-ery request generally benefits therequesting party.”12

While these factors may be tal-lied mathematically, they are mere-ly a guide to allocating discoverycosts. The “precise allocation is amatter of judgment and fairnessrather than a mathematical conse-quence of the seven factors dis-cussed above. Nonetheless, theanalysis of those factors doesinform the exercise of discretion.”13

PRACTICE GUIDELINESNeither Georgia state courts nor

federal courts in the 11th Circuithave addressed the issue of alloca-tion of electronic discovery costs,making it an issue of first impressionin Georgia. While Zubulake is notcontrolling in the 11th Circuit or inGeorgia state courts, its seven-factortest appears well reasoned, and, atthe very least, will be persuasive inany such analysis, even in statecourt.14 In particular, factors onethrough five of the Zubulake test,which address the marginal utilitytest and expense issues, are likely toweigh heavily in any cost shiftinganalysis. Accordingly, practitionersshould consider the guidelines pro-vided by Zubulake in requesting andresponding to discovery requests forelectronic data.

If you are the requesting party,some strategies may help you reduceyour chances of picking up part ofthe discovery tab (the court requiredZubulake to pay 25 percent of the dis-covery tab, totaling over $40,000).15

For example, narrowly tailor yourdiscovery request to target only rele-vant information. Initially, requestonly forms of accessible data, forwhich cost-shifting is inappropriate.Use this data to demonstrate the rele-vance and importance of obtaininginaccessible data. Make an effort tokeep the costs of responding to yourproduction request low as comparedwith the amount in controversy. Donot waste your time requesting costsassociated with reviewing the dataonce it is in accessible form, becauseonce the data has been restored to anaccessible format and responsivedocuments located, cost-shifting is nolonger appropriate.

The responding party is not with-out strategies either.16 For example,as the respondent, argue that the

requested electronic data lacks rele-vance and the information is avail-able from accessible sources.Demonstrate that you have notunnecessarily run up productioncosts. If the amount of the requesteddata is large, request that a smallsample be restored.17 Then try todemonstrate, from within the sam-ple, the lack of relevant information,the high costs associated with restor-ing the electronic data, and the avail-ability of the data from other, acces-sible sources. Lastly, argue that ifany of the seven factors weighstowards cost-shifting, at least 25 per-cent of the costs should be shifted tothe requesting party, as in Zubulake.

Consideration of the Zubulake fac-tors before initiating discoveryrequests for electronic data can alle-viate the headache of potential dis-covery disputes and reduce the costsof discovery for both parties.

John Livingstone prac-tices intellectual prop-erty law, focusing onpatent and trademarklitigation, in theAtlanta office of

Finnegan, Henderson, Farabow,Garrett & Dunner LLP. Livingstonegraduated from Florida StateUniversity (B.S. 1994, M.S. 1997)and earned his law degree fromEmory Law (J.D., with honors,2001). Livingstone may bereached at 404-653-6400 or [email protected].

Endnotes1. This case does not discuss electronic

discovery. 2. Zubulake I, 217 F.R.D. at 311.3. Id. at 324.4. Id. at 318-19. The court provides a

definition for each category of data,which is helpful to the uninitiated.Id.

5. Id. at 319-20.6. Zubulake III, 216 F.R.D. at 284.7. Id. The Court modified an 8-factor

test articulated in Rowe


Entertainment, Inc. v. WilliamMorris Agency, Inc., 205 F.R.D. 421(S.D.N.Y. 2002), to comport with theFRCP presumption that theresponding party bear the costs ofresponding to a discovery request.The Court felt, as had commenta-tors, that the Rowe test improperlyfavored the responding party,resulting in an allocation of costs tothe requesting party. Zubulake III,216 F.R.D. at 284.

8. Zubulake I, 217 F.R.D. at 322.9. Id. at 323.10. Id.11. Id.12. Id.13. Zubulake III, 216 F.R.D. at 289. In

fact, in Zubulake, factors onethrough four weighed against cost-shifting, factors five and six wereneutral, and factor seven favoredcost-shifting. Despite the majority offactors weighing against cost shift-ing, Zubulake was required to payfor a portion of UBS’s discovery

costs. The Court found that, becausethe seven factor test indicated thatUBS should pay the lions share, thepercentage assigned to Zubulakemust be less than fifty percent.However, because the success of thediscovery request is somewhatspeculative, any cost that can fairlybe assigned to Zubulake is appro-priate and ensures that UBS’sexpenses will not be unduly bur-densome. The Court found that atwenty-five percent assignment ofelectronic discovery related costs toZubulake was appropriate in thesecircumstances. Id.

14. In Georgia, if discovery provisionsare literally and in substance thesame as the rules of the FederalRules of Civil Procedure, “the deci-sions of the federal courts applyingand interpreting those rules, whilenot absolutely binding on Georgiacourts, must of necessity be lookedto as highly respectable and persua-sive authority.” Atlantic Coast Line

R.R. Co. v. Gause, 156 S.E.2d 476,479-80 (Ga. App. 1967). GeorgiaCode Annotated § 9-11-26(c) (2003),prescribing limitations on discov-ery, is virtually identical to and, insubstance, the same as FRCP 26(c).

15. Id. at 289-90.16. While the this article addresses cost

allocation in electronic discoverydisputes, Zubulake IV alsodescribes the duty of a party tomaintain electronic data once litiga-tion commences and the penaltiesfor violations thereof. Thus,prospectively, if electronic discov-ery will be an issue in a case,Zubulake IV provides guidelinesfor the protection of electronic data,which may help your clients avoiddiscovery sanctions.

17. In Zubulake, UBS identified 94 backup tapes to be restored. The Courtordered 5 of the 94 tapes restoredand then performed the seven-fac-tor test based on this smaller sam-ple. Zubulake I, 217 F.R.D. at 324.

February 2004 27

If we desire respect for the

law, we must first make the

law respectable.” — Judge

Louis Brandeis

Even as lawyers, we tend to takefor granted the manner in whichthis country has largely privatizedthe enforcement of civil andadministrative law. In the UnitedStates, much of what is accom-plished in other industrializednations through governmentalbureaucracies in the areas ofantitrust, trade regulation, con-sumer protection, civil rights, secu-rities regulation and intellectualproperty is accomplished privatelythrough litigation and discovery.1

The American system of civiljustice provides private litigantswith the power to enforce and vin-dicate not only their own rights,but also constitutional, civil andstatutory rights of others. Thispower would be largely meaning-less in the absence of some proxyfor the investigative powers of thestate. That power is delivered toprivate litigants through the dis-covery process, but it is only effec-tive when the laws governing dis-covery are enforced by the courts.

DISCOVERY ABUSEIn 1966, the Georgia legislature

passed the Georgia Civil PracticeAct. The purpose of the act was tofacilitate the “just, speedy andinexpensive determination of everyaction.”2 In the years thathavepassed since the CPA’s enact-ment, civil litigators, an admittedlyclever and wily bunch, have mademuch mischief with the CPA.

The effect of this mischief onGeorgia’s civil justice system

inevitably leads to a number ofquestions: Has the CPA achievedits stated goals? Is civil litigationhandled in a speedy and inexpen-sive manner today? And how dothe CPA’s failures frustrate the abil-ity of private litigants to successful-ly vindicate the larger social goal ofenforcing laws that are neither self-executing nor enforced by the state?

Few would dispute that the civiljustice system and the CPA do not cur-rently deliver swift and inexpensive


Standing Orders:Filling the Gap Between the Civil Practice Act and the Practice

By Cary Ichter

GBJ feature

“

justice in many — perhaps most —cases, and most informed observersagree that the primary source of delayand expense is the discovery process.3Study after study has confirmed thatpractitioners and jurists agree on atleast this much: discovery abuse is amajor cause of delay and expense inlitigation.4

Indeed, those who operate in thelitigation trenches overwhelminglyagree that discovery abuse existsand that the courts are not doingenough about it. According toProfessor Wayne Brazil, 77 percentof attorneys interviewed usedoverly broad discovery as a tacticalweapon in litigation — and thoseare just the folks who fessed up.5

On the flip side of onerous dis-covery requests is the litigant who,absent a holy war, refuses to pro-vide meaningful information orwho asserts every known objectionto every discovery request in anexercise that appears to be morefocused on employing the block andcopy function of their computerthan on responding to the propo-nent’s requests in any meaningfulway. Anyone unfamiliar with thesetactics need only serve a set of inter-rogatories in virtually any commer-cial case; as a general proposition,you could derive more facts fromthe interrogation of a mannequin.

While it is easy to find statisti-cal support for the notion thatmore is made of discovery abusethan is justified, those statistics —just like those that your adversaryalways confuses and misuses —are taken out of context. If youwant to find discovery abuse, fol-low the money. Studies have con-sistently found that behavior com-monly described as “discoveryabuse” is prevalent — as in epi-demic — in cases involving largesums of money. In short, the high-

er the stakes, the more likely oneis to encounter discovery hijinks.6

WHO IS TO BLAME?So, who is to blame? That’s easy:

the lawyers. Of course, virtuallyeveryone involved in the process isa lawyer: the legislators who wrotethe laws; the litigators who manip-ulate the rules; and the judges whoare supposed to enforce the rulesare lawyers. But the purpose of thisarticle is to suggest that we fix theproblem rather than fix the blame.

Discovery abuse is in the eye ofthe beholder. Ask any litigatorabout the problem, and they willgenerally tell you that discoveryabuse is something their opponentsengage in, and it is just awful.Many have suggested that bettercase management is the silver bul-let that will reduce costs and delayin litigation, but more rules are nota substitute for enforcement of therules already in place.

Case management only workswhen judges are willing to do themanaging. More reporting, morepaper and more deadlines do notreduce cost or increase judicialinvolvement in the process; atbest, they simply increase thecourts’ access to information.Pointless access to informationaccomplishes nothing, other thanto keep the courts awash in paper,

which makes the process no morefair or efficient.

In tort law, the last clear chancedoctrine holds that the party whohad the last reasonable opportunityto avoid an accident or injury andwho fails to do so can be held sole-ly responsible for the occurrence,notwithstanding the victim’s owncontributory negligence. In the caseof the administration of the civiljustice system, the last clear chanceto stop discovery abuse resideswith the courts. Legislators haveprovided a template for administra-tion of the civil justice system.Litigators, being client-dedicatedactors within the system, are incen-tivized to do all they can to pervertthe system when doing so benefitstheir clients. It therefore is left to thejudges to ensure that the systemdelivers on the promise of the CPA:a “just, speedy and efficient” sys-tem.

Unfortunately, under the lastclear chance doctrine, the courtswould be found liable. The PublicLaw Research Institute reported thefollowing on the opinions of thosemost schooled in the process — thelawyers:

The judiciary also plays a rolein facilitating discovery abusethrough its failure to enforce therules and impose sanctions.Study after study has confirmed

February 2004 29

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that judges are reluctant toimpose meaningful sanctionson errant lawyers and, evenwhen they are so disposed, thesanction is often untimely andamounts to little more than aslap on the wrist. ProfessorBrazil reports that, dependingon the kind of case, 50 to 90 per-cent of all lawyers interviewedreported dissatisfaction withthe courts regarding the assis-tance received in resolving dis-covery problems and favoredgreater court involvement,while 70 to 90 percent favoredmore frequent use of sanctions.7

Why is this kind of court inter-vention necessary? Why mustjudges force lawyers to play niceand recognize their duty to theprocess? Why can’t we all just beprofessional and let the systemoperate the way it was designed?Can’t we all just get along? Theanswer is no.

“[D]iscovery has been engraftedonto a thoroughly adversarialprocess…[and a] system that pro-motes adversarial resolution of dis-putes through the efforts of clientdedicated legal representativescannot be expected to easily accom-modate the process that mandatesdisclosure of vital case-relatedinformation through the simpleexpediency of one party making arequest to another.”8

Absent eliminating discoveryaltogether or changing the natureof lawyers’ duties, client-centricadvocates are dutybound — bothat trial and in the discoveryprocess — to zealously representtheir clients’ interests.

It is the courts that must protectthe public’s interest in the processand ensure that the public hasaccess to a just, efficient and inex-pensive justice system. If the courts

are not willing to become proactivein the litigation process and tomonitor strict compliance with therules, client-dedicated advocateswill zealously find and exploitevery weakness in the system thatminimizes the damage done totheir client’s case through the dis-covery process. Many advocatesview that to be their job.

How does a judge struggling todo justice — for the parties andadvocates — navigate the narrowpassage created by these compet-ing interests? I would suggest thathe or she do so by announcing thatthere is a new marshal in town, andthe marshal has a supplemental setof rules that will be obeyed, or else.

STANDING ORDERSStanding orders are generally

issued at the beginning of a caseand set forth not only rules for theparties to live by, but also expec-tations of the court as to the con-duct of the parties. A standingorder governing the discoveryprocess should be issued andserved on all parties once discov-ery is ready to commence.

It is true that there are no silverbullets that will cure all the ills ofthe adversarial discovery process,but a judicially issued standingorder that addresses the most com-mon sources of dispute, delay, anddiscontent would go a long way tosmooth the bumps in the process.

The proposed standing orderthat follows is designed to addressthe most common issues beforethey arise. This approach accom-plishes two goals that should pro-mote fairness and deter abuse:First, by issuing a standing order atthe beginning of a case, the courtplaces all parties on notice of itsexpectations regarding the mannerin which discovery will proceed. If

the court is required to come downhard on one of the parties or theircounsel, it can do so having issueda fair warning. Second, by havingan order in place, any violations ofthe order by the parties will beimmediately sanctionable pursuantto OCGA § 9-11-37(b)(2).

An additional advantage ofstanding orders is that they arehighly flexible and adaptable. If anissue tends to arise in personalinjury cases more than in othercases, for example, the court canmake modifications to its standardstanding order to address thatissue in those cases. The courts donot have to wait for Uniform Rulesto be adopted or for the CPA to beamended to deal with those issuesregularly arise.

For the purpose of starting a dia-logue regarding this much-neededreform, I have put together a pro-posed standing order that addressesissues I have consistently seen overthe course of nearly 20 years in com-mercial litigation. Certainly, thisproposed order is not the universalsolvent that will wash way all dis-covery abuse. Rather, it is offered asan adaptable template that address-es issues that tend to consistentlycause delay and undue expense inthe discovery process. Seasonedjurists will have a clear idea of whatissues present their greatest chal-lenges in the process, and they canadapt their standing orders basedupon that wealth of experience.

PROPOSED STANDING ORDER

1. Purpose: The purpose of thisOrder is to promote an efficient,speedy, and just disposition ofmatters and to eliminate games-manship, abuse, and expense in thediscovery process. Every party tothis action has a duty to cooperate


with the Court and with other par-ties to facilitate the discovery ofevidence bearing on facts in dis-pute with the least possibleexpense and inconvenience to theparties given the matters at issue.The Court will vigorously enforcethis Order pursuant to OCGA §9-11-37(b)(2).

2. Timing: All discovery requestsmust be timely served and mustcomply with the requirements of theGeorgia Civil Practice Act. The par-ties shall meet within twenty days ofthe commencement of discovery toprepare a Consolidated DiscoveryPlan. Any disagreements regardingdiscovery between the partiesshould, to the extent possible, beidentified in the CDP. Upon therequest of either party, the Courtwill schedule an Early SchedulingConference and shall resolve anydisputes regarding the CDP andassist the parties in mapping out adiscovery plan for the case.

The CDP shall include the fol-lowing:

(A) a list of the persons possi-bly having information relevantto the subject matter of the pend-ing action, who are to be inter-viewed or deposed, with a tenta-tive schedule of depositions;

(B) a description by categoryand location of all documents,data, compilations, and tangiblethings to be examined to deter-mine their bearing on the dis-puted facts, with a tentativeschedule for their examination;

(C) a tentative identification ofany issues on which any partywill present scientific or technicalopinion evidence and a tentativeschedule for the disclosure of thesubstance of such testimony;

(D) a schedule fixing the timeframe within which discoverywill be completed and a date for

a further conference to considersettlement in light of informationacquired through discovery; and

(E) a list of any issues regard-ing the plan on which the par-ties are unable to agree andwhich therefore require a rulingby the Court, and the con-tention of each party withrespect to all such issues.

Upon motion of the parties anda showing of good cause, theplan or order shall be modifiedby the Court to allow additionaldiscovery:

(A) to accommodate theinterests of parties joined andserved after the initial plan isprepared;

(B) to investigate previouslyunrecognized issues of factrevealed in the course of discov-ery conducted in accordancewith the initial plan;

(C) to allow for the examina-tion of documents or the depo-sition of witnesses not recog-nized at the time of the initialplanning as possible sources ofprobative evidence bearing onthe disputed issues; or

(D) when justice so requires.A proposed modification of the

plan shall be signed by counsel foreach party and filed with the court.To the extent that the parties areunable to agree on a proposedmodification of a current tentativeplan, they shall file a statement oftheir disagreement reciting anycontentions of any party on whichthey are unable to agree and thecourt shall forthwith order anyappropriate modifications.

If there is a disagreement amongthe parties regarding any aspect ofdiscovery:

(A) The Court shall hear anddecide the matter forthwith. Unlessthe Court otherwise orders and

except as otherwise provided forherein, submissions with respect todiscovery shall be oral and on therecord. The Court will make everyeffort to expeditiously schedulehearings, either in person or byconference call, when discoveryissues arise.

(B) A party prevailing on anysuch issue shall be awardedcosts of bringing the motion,

including reasonable attorney’sfees, as just reimbursement for

the cost of the presentationmade to the court.

(C) If the parties have recur-ring disagreements in the

February 2004 31

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administration of a CDP, thecourt shall appoint a specialmaster to hear and decide theissues. The rulings of the specialmaster shall be reviewed only tocorrect errors of law. The partiesshall bear the costs of such a spe-cial master in a manner deemedequitable by the Court. In mak-ing such a decision, the Courtwill give great weight to thequestion of which party appearsto be culpable in creating theissues presented to the Court.

(D) The fees and expenses ofthe special master appointed bythe Court shall also be empow-ered to make awards of costs ofmotions, including reasonableattorneys’ fees.

(E) The Court reserves theright to require counsel to payany such sanctions.

3. Presumptions as to reason-ableness of discovery requestsand objections thereto: All discov-ery requests must be contextuallylimited. For example, a request forall documents that contain aparty’s name or a particular wordwill be regarded as prima facieoverbroad. Such requests mustprovide contextual informationthat is related to one or more mat-ters at issue in the case.

Similarly, general objections willbe rejected out of hand by theCourt. The only objections theCourt will consider are those thatare narrowly and precisely drawnto address particular discoveryrequests. The rote use of the same

set of standard objections will cre-ate a rebuttable presumption thatthe objections are without merit.

Any objection as to the burdenimposed by complying with agiven discovery request must beaccompanied by a specific descrip-tion of the burden that would beimposed upon the party in com-plying with the request. Thedescription shall be calculated toenable the party seeking discoveryto, where appropriate, narrow itsrequest in a manner that will rea-sonably reduce the burden.Counsel’s signature on the discov-ery responses shall constitutecounsel’s certification that counselhas investigated the issue of bur-den with his or her client and thatsuch representations are, to thebest of counsel’s understandingand belief, true.

The parties must use their bestefforts to confer on any discoveryissue before bringing an issue tothe Court. If a party fails to proper-ly confer on an issue before bring-ing the matter before the Court, theCourt will, upon proper motion,and without prejudice to later con-sideration of the substance of theissue, strike the discovery motion.In such an instance, the Court willaward costs of the motion to striketo the prevailing party.

If a party objects to any discov-ery request based upon claims oftrade secret protection or the needto limit the disclosure of confiden-tial business information, then nolater than ten days prior to the

date on which responses to dis-covery are due, the objectingparty shall alert the party seekingdiscovery and shall prepare andpropose a Consent ProtectiveOrder. The Court shall, upon therequest of the parties, provide theparties with a form for theProtective Order. The Court willnot grant protection to informa-tion that is not a genuine tradesecret or that is not confidentialbusiness information, the disclo-sure of which would injure aparty in its business. If a partyclassifies information as beingconfidential under the terms of aProtective Order that is not confi-dential or is not a trade secret, theCourt will consider eliminatingthe protection afforded all suchinformation or may sanction theparty misclassifying information.

4. Privileged documents: To theextent that a party objects to the pro-duction of documents based upon aclaim of privilege, the party mustproduce a privilege log no later thanthe date on which documents areproduced. The privilege log shallidentify the author of the document,all recipients of the document,including all persons who receivedcopies, a brief description of whoeach recipient is, the date of the doc-ument, the subject of the document,the number of pages of the docu-ment, and why the party contendsthe document is privileged. If onlypart of a document is privileged, thenon-privileged portions must beproduced in a timely fashion. Abuse


If a party fails to properly confer on an issue before bringing the mat-

ter before the Court, the Court will, upon proper motion, and with-

out prejudice to later consideration of the substance of the issue,

strike the discovery motion.

of a privilege may be considered bythe Court as a basis for a finding ofwaiver of the privilege.

5. Production of documents:Absent consent of the opposing partyor leave of Court, requested docu-ments must be available for inspec-tion and copying within ten days ofthe date on which written responsesto document requests are due.

If the Court determines that adocument or other evidence hasbeen willfully and improperlywithheld during discovery, theCourt may, at its option, excludethe document from evidence orsanction the withholding party anamount equal to the opposingparty’s costs of litigation from thedate the document or evidenceshould have been disclosedthrough the date on which the doc-uments or evidence were disclosed.

6. Requests for Admission: Theuniverse of proper responses toRequests for Admission are:Admitted; Denied; or WithoutKnowledge Sufficient to Form aBelief as to the Truth or Falsity ofthe Request. To be sufficient, aresponse indicating a lack ofknowledge must be accompaniedby a detailed description of thesteps taken by the party or its coun-sel to investigate the substance ofthe request. Any other responses,including objections, are presump-tively improper, and additionalverbiage shall be struck uponproper motion with costs awardedto the movant.

7. Deposition conduct: Counselshall not instruct a witness not toanswer a question during thecourse of a deposition, unlessanswering the question would

reveal some matter that is in someway legally privileged. An instruc-tion to a witness to refuse to answera deposition question, absent theassertion of some privilege or tradesecret protection, is always improp-er and will not be tolerated by theCourt. In the event that counsel forthe deponent believes that an areaof inquiry is improper or that thedeposition is being conducted inbad faith, counsel’s proper remedyis to suspend the deposition and tofile a motion for protective order.

The Court does not favor speakingobjections and will not tolerate coun-sel’s interference with the depositionprocess. Argumentative objections orobjections that appear to obstruct thetaking of the witness’ deposition willsubject counsel to sanctions.

Depositions to preserve testimo-ny may be taken of any witness

February 2004 33

who meets the standard of beingunavailable for trial, regardless ofwhether the witness has been pre-viously deposed in the case.

Any deposition may be video-taped, provided that the party tak-ing the deposition provides writtennotice of its intention to videotapethe deposition no less than five busi-ness days prior to the deposition.

8. Depositions of corporateand other designees: A partymay notice the deposition of anentity by serving a notice of dep-osition upon the entity with adetailed description of the mat-ters upon which the deponent isto testify. The entity shall identifythe designee(s) to testify on theenumerated subjects. The partynoticing the deposition may notchoose the entity’s designee. Thenotice defines only the scope ofthe subjects upon which thedeponent must be prepared totestify. The deponent, like anyother witness, may be questionedabout any subject relevant to thesubject matter of the pendingaction. The designee must becapable of testifying knowl-edgably regarding all matters setforth in the notice. Failure to pro-vide a designee who can testify asto all matters identified in thenotice shall constitute an admis-sion in judico that the entity hasno knowledge with respect to thesubjects for which a designee isnot provided.

9. Expert Witnesses: Expertswho are to testify at trial shall pre-pare a written report no later thanninety (90) days prior to trial. Suchexperts may be deposed any timeafter submission of their report.Rebuttal experts who are to testifyat trial shall prepare a writtenreport no later than forty-five (45)days prior to trial. Rebuttal

experts may be deposed any timeafter the submission of theirreport. No other experts may bedesignated after thirty (30) daysprior to trial.

10. Expert Reports: Counselshall preserve all drafts of expertreports (partial or complete) andevidence of communications withexperts (or with any intermedi-aries between counsel and experts)on the subject of actual or potentialtestimony or any opinions relevantto the subject matter of the action,and shall instruct their experts andintermediaries to do likewise. Allsuch material shall be producedupon expert designation and sup-plemented no less than two busi-ness days prior to the deposition ofthe expert (unless the parties oth-erwise agree in writing). Thisrequirement shall not apply todrafts prepared solely by the testi-fying expert not provided to or dis-cussed with anyone else. Counsel’sprivate notes of conversations willbe treated as work product andneed not be produced absent ashowing required under OCGA§9-11-26(3)(b).

Cary Ichter, a part-ner with Balch andBingham LLC, prima-rily handles commer-cial disputes. Hisclients include

national franchise companies,which he represents bothregionally and nationally. Ichterhas litigated disputes betweenmanufacturers and distributorsthroughout the country, withcases in New York, New Jersey,California, Minnesota,Wisconsin and Puerto Rico.Ichter is a Fellow in the LawyersFoundation of Georgia and islisted in The Best Lawyers inAmerica, 2002-2003.

Endnotes1. See Paul D. Carrington, A New

Confederacy? Disunionism in theFederal Courts, 45 Duke L.J. 929,933, n. 44 (1996).

2. See OCGA §9-11-1.3. While the time and delay associat-

ed with discovery is a focal pointof scholarly interest, in both thestate and the federal system, many,if the not the majority of cases,have no discovery at all. A FederalJudicial Center study of over 3,000civil cases in six federal districtsshowed that in a slight majority ofthose cases, there was no formaldiscovery pursued, and that onlyfive percent of the cases had morethan ten discovery requests. SeeConnolly, Hooleman & Kuhlman,1978, Judicial Control and the CivilLitigation Process: Discovery 28.Nonetheless, in a 1988 survey offederal district judges and attor-neys who practice in federal court,a majority of the respondentsexpressed the belief that lawyers’abuse of the discovery process isthe single greatest contributor tothe high cost of litigation. SeeLouis Harris & Associates, 1989,Procedural Reform of the Civil JusticeSystem.

4. Charles W. Sorenson, Jr., DisclosureUnder Federal Rule of Civil Procedure26(a)—“Much Ado about Nothing?,”46 Hasting L.J. 679, 697 n.57 (1995).

5. Wayne D. Brazil, Views From theFront Lines: Observations fromChicago Lawyers About the System ofCivil Discovery, 1980 Am. B. Found.Res. J. 217 .

6. Earl C. Dudley Jr., Discovery Abuse:Some Specific Proposals to Amend theFederal Rules of Civil Procedure, 26U.S.F. L. Rev. 189, 195-97 (1992).See also Sorenson, supra note 6, at708.

7. Peggy E. Bruggman, Reducing theCosts of Civil Litigation, PLRI (citingMichael E. Wolfson, Addressing theAdversarial Dilemma of CivilDiscovery, 36 Clev. St. L. Rev. 17,46-48 (1988)).

8. Wolfson, supra note 7.


February 2004 35

State Bar President

William D. Barwick

presided over the 193rd

meeting of the Board of Governors

at Brasstown Valley Resort in

Young Harris, Ga., Nov. 8.

Barwick began the meeting byrecognizing past presidents of theBar, new Board members, mem-bers of the judiciary and other spe-cial guests.

The first item of business was theapproval of the 191st and 192ndmeeting minutes from the June 13and 14 BOG meetings at AmeliaIsland Plantation in Amelia Island,Fla. Following the approval of theminutes, the Board, by unanimousvoice vote, approved the reappoint-ment of Gary C. Christy, for a four-year term, to the JudicialQualifications Commission. By aunanimous voice vote, the Boardalso approved the reappointmentsof Harold T. Daniel Jr. and RudolphN. Patterson for three-year terms tothe CCLC Board of Trustees.

Following a report by JohnMarshall, the Board, by majorityvoice vote, approved in concept the

proposed mentor program of theStandards of the ProfessionCommittee. The committee willseek the approval of the SupremeCourt for the program in concept,and will present a proposed budg-et and detailed program to theBoard in June.

Following a report by Barwickthat the rules and bylaws amend-ments to be considered at the meet-

ing are not in conflict with anyother rules, regulations or bylawsof the State Bar, the Board took thefollowing action:

ProposedAmendments

Clients’ Security Fund — Rule10-104 (Trustees) — Approved,as revised

Fall 2003 Board of GovernorsMeeting Summary

GBJ feature

Bar President William D. Barwick opens the 193rd meeting of the Boardof Governors by recognizing past presidents of the Bar, new Board mem-bers, members of the judiciary and other special guests.

Formal Advisory Opinion BoardRules 4-404 (Immunity) —Approved Bar Rules Relating to LawyerReferral Services (AuthorizedFee Sharing) — Tabled until theJanuary meetingState Bar Rule 8-104(D) — CCLCTrial Experience — Approved Multijurisdictional Practice —Approved, as revised. The Boardapproved, forwarding the rec-ommendation that Part E be soamended to the Office of BarAdmissions. The Board also for-warded the recommendationthat Uniform Superior Court 4.4be so amended to the Council ofSuperior Court Judges.Following a report by Bob

McCormack, the Board, by unani-mous voice vote, approved pro-posed bylaws amendments for theAdministrative Law, Elder Lawand Criminal Law sections. Byunanimous voice vote, the Boardalso approved the 2004 BOG elec-tion schedule.

Following a report by John A.Chandler, the Board took the follow-ing action on proposed legislation:

Legislative ProposalAccess to Justice and Womenand Minorities in the ProfessionCommittees (a) Funding for

Civil Legal Services for DomesticViolence at $2,300,000 for fiscalyear 2004-2005 — Passed Appellate Practice SectionOCGA §5-6-4(b) and OCGA §9-11-23(f) — Passed Court Futures Committee (a)Dismissed Juror in Civil CasesProposed New Code Section (15-12-44) — Failed Georgia CASA Funding for fiscalyear 2004-05 at $390,000 —Passed Georgia Public DefenderStandards Funding for fiscalyear 2004-05 — PassedBarwick reported on the activi-

ties of the Court Futures andEvidence Study Committees.

Bar Treasurer J. Vincent Cookprovided the income statements bydepartment for the year endedJune 30, 2003, and the three monthsended Sept. 30, 2003.

Laurel Payne Landon reportedon the various activities of theYLD, including its recent fall meet-ing in Athens, the orientation forcommittee chairs, the spring meet-ing/cruise scheduled for theBahamas in April, and upcomingcommittee projects.

Barwick reported on the actionsof the Executive Committee fromthe Aug. 22-23 and Sept. 25 meet-ings, and the Board, by unanimous

voice vote, approved the actions ofthe Executive Committee.

Sally A. Lockwood and Barwickreported on the Chief Justice’sCommission on Professionalism’sFifth Annual Justice RobertBenham Awards for CommunityService and the 2003 Law SchoolOrientations on Professionalism.

Barwick updated the Board onState Bar Building issues andinformed them the parking deckshould be completed by June 2004.

Barwick reported that theSupreme Court of Georgiaapproved UPL Advisory Opinion2003-2 regarding real estate closings.

Phyllis Holmen reported on theactivities of the Georgia LegalServices Program.

The Board received a copy of thefuture meetings schedule. Thereafter,Michael Elsberry provided an updateon activities being planned in con-junction with the 2004 AnnualMeeting scheduled for Orlando, Fla.

The Board received a copy of theReport on Matters HandledAdministratively by the Office ofthe General Counsel for the monthof September 2003, and a Year-to-Date Report on Lawyer Regulationfor the period of May 1, 2003through Sept. 30, 2003.

Robert Ingram announced thatthe Bench and Bar Professionalism


Members attend the 193rd meeting of the State Bar of Georgia Board of Governors meeting.

Awards have been renamed theChief Justice Thomas O. MarshallProfessionalism Awards and thatthe past presidents will select theaward recipients annually at the

spring Board meeting. The awardswill continue to be presented at theannual meeting.

Wilson DuBose thanked theBoard for its continued support onindigent defense and requestedthat Board members nominate

potential appointees for theGeorgia Circuit Public DefenderSelection Panels.

After opening the floor andaddressing some Board member’squestions and concerns, Barwickadjourned the meeting.

February 2004 37

(Above) Judge Wayne Purdom, State Court of DeKalb County, discussesCourt Futures Committee issues.(Left) Bar Treasurer J. Vincent Cook updated Board members on theBar’s finances.

A t a time when most

mothers of 15-year-

old daughters are

helping them recover from their

first serious high school crushes,

cope with the tumultuous high

school years and understand the

responsibilities of being young

women, 36-year-old Sherida

Ragland was tearfully saying good-

bye to her daughter and her hus-

band to begin a term of at least two

years in the Georgia prison system.

At a time when most youngwomen are finishing college, look-ing for their first full time jobs,deciding which dates to accept forthe upcoming weekend, or evenplanning their marriages, 21-year-old Tommi Dinkins was preparingto spend the next five years of herlife in jail.

Neither of these women claims tobe a victim of the “system.” Eachwoman readily acknowledges her

conviction for serious felonycrimes in Georgia. Raglandwas convicted of, among otherthings, theft by deception andforgery in the first degree. Shewrote bad checks andengaged in transaction fraud.Ragland received a sentence of10 years, to serve at least twoyears. Dinkins was convictedof robbery by intimidation.She drove the get-away car forher boyfriend who actuallycommitted the robbery.Dinkins received a sentence of15 years, to serve at least fiveyears. Both women are sched-uled for parole some time inthe early part of 2004.


Society, Participants Benefit from BASICSSubmitted by the Lawyers Foundation of Georgia

GBJ feature

BASICS graduate Tommi Dinkins andPhilip Jackson, chair of BASICS.

BASICS graduate Sherida Ragland and Philip Jackson, chair of BASICS.

Both women have another thingin common — they are two of the52 graduates of the BASICS class ofDec. 12, 2003, from the MetroWomen’s Transitional Center inAtlanta. Upon receiving their cer-tificates, Ragland, Dinkins and theother 50 graduates becameinductees into an alumni group ofover 7,000 former inmates of theGeorgia Prison system who haveattended and successfully complet-ed the “World of Work” programoffered by BASICS, one of the old-est continuous programs of theState Bar of Georgia.

BASICS is an acronym for “BarAssociation Support to ImproveCorrectional Services.” It was start-ed in 1976 as a project of theAmerican Bar Association inresponse to a challenge by then-Chief Justice Warren Burger thatattorneys take a more active role inthe criminal reform system. TheState Bar of Georgia rose to thechallenge and created its BASICSprogram. Some 27 years later, theprogram is still in operation.

The BASICS program is offeredat 26 transitional and diversioncenters across the state. The centersare operated by the GeorgiaDepartment of Corrections.Transitional centers serve as go-between facilities for inmates whoare completing their prison con-finement and are nearing releaseback into the community.Diversion centers serve as alterna-tive places of confinement for per-sons who have committed seriouscrimes, which ordinarily would

dictate prison time; however, forsome extenuating reasons, the per-son is sentenced to serve his or herconfinement in an institution lessrestrictive than a prison. Both insti-tutions strive to return to societypersons who are less likely to vic-timize society in the future.

The primary goal of BASICS is toreduce recidivism. The recidivismrate for the general inmate popula-tion in Georgia ranges from 37 per-cent upwards. BASICS strives toreduce recidivism by training,motivating and encouraginginmates to be productive, law-abiding, contributing members ofsociety. Additionally, the programencourages participants to explorethe possibility of owning and oper-ating their own businesses. Theten-week program focuses ontraining participants in life-skillstechniques such as balancing acheckbook, dressing for job inter-views and meeting the expecta-tions of employers. The BASICScurriculum requires all participantsto attend weekly classes, partici-

pate in class work, complete home-work and pass regular examina-tions. BASICS operates on thepremise that society benefits whenan inmate leaves prison with skillsthat enable them to find and keep ajob. Society benefits when formerinmates can find and keep honestand lawful means of support forthemselves and their dependents.Such measures reduce recidivism.

The BASICS program has beenand is very successful in Georgia.Available figures from the GeorgiaDepartment of Corrections showthat, for centers where graduates ofthe BASICS program have beentracked, the recidivism rate amonggraduates is only 16 percent. Tokeep an inmate incarcerated, itcosts Georgia an estimated $18,937per inmate, per year. By compari-son, it costs just $390 per partici-pant, per year, to operate theBASICS program. Many graduatesfrom the BASICS program have ledhighly successful lives subsequentto their release from prison. Forexample, one graduate owns aninsurance agency, another gradu-ate founded a printing business,another graduate is founder andCEO of a development companyand still another graduate hasearned her Ph.D.

Both Ragland and Dinkins seempoised to follow the path set by

February 2004 39

BASICS strives to reduce recidivism by train-

ing, motivating and encouraging inmates to

be productive, law-abiding, contributing

members of society.

many previous BASICS’s gradu-ates. Ragland, now 38, has been rec-ognized for her leadership abilitiesby, among other people, her fellowBASICS classmates, who electedher president of the class. Dinkins,now 26, has also been recognizedfor her leadership abilities. She waselected by her peers as class admin-istrator and served as Mistress ofCeremonies for the graduation pro-gram on Dec. 12, 2003.

After release from prison,Ragland will return to her husbandand her 17-year-old daughter andresume her parental duties. Shealso plans to resume her day job asa mortgage loan processor and goto school at night. Ragland credits

the BASICS program with changingher motivation from greed topreparation. Her focus will nolonger be on the quick money, buton preparing herself for the job oropportunity that brings her success.

Dinkins has earned an associ-ate’s degree while in prison, andplans to pursue a bachelor’s degreein graphic design once she isreleased. Dinkins credits BASICSwith motivating her to succeed andteaching her to believe in herself.

While the BASICS program worksto change the lives of its participants,it is society that is the ultimate bene-ficiary of the program. Society bene-fits from a reduced crime rate.Society benefits from the savings to

taxpayer dollars when fewer peopleare incarcerated. Society benefitswhen more people are gainfullyemployed and paying their share oftaxes. Society benefits when morepeople leave prison ready and eagerto become part of the solution, ratherthan more of the problem.

As Ragland, Dinkins and theother 50 graduates reenter this com-munity, all eyes will be on them tosee if they continue the grand tradi-tion set by some 7,000 BASICS grad-uates before them. And, as for theBASICS program, it will enter its28th year of answering the challengeof Chief Justice Warren Burger forlawyers to assist in improving thecriminal reform system.


Quantities are limited! Order your extra copies of the

2003-2004 State Bar of Georgia Directory & HandbookPrice per copy (includes tax and shipping): Member of the Bar$36 per copy. Nonmember $46 per copy.

Number of Directories ordered ___ x $____ per copy: $ _______

(Orders may be picked up at a reduced cost.)

TOTAL AMOUNT ENCLOSED $ _______

Ship to:

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Please complete and return this form. Orders must be submitted in writing and advance payment isrequired. Mail check and request to: State Bar of Georgia Directory, 104 Marietta Street NW, Suite

100, Atlanta, GA 30303. Please allow 2 - 4 weeks for delivery.

February 2004 41

For the fourth year in a row,

the Lawyers Foundation

of Georgia, the philan-

thropic arm of the State Bar of

Georgia, awarded challenge grants.

Local and voluntary bar associations,

sections and committees of the state,

local and voluntary bars and other

law-related organizations are eligible

for the grants.

Awarding grants is one of themost rewarding aspects of workingwith a foundation, whether you area board member, a committeemember, a donor or an employee.It can also be one of the most frus-trating parts of the job, as therenever seems to be enough moneyto go around.

Each grant application is careful-ly reviewed. We make sure that thegrants awarded enhance the systemof justice and support and assist thelawyers of Georgia and the commu-nities they serve. A total of sevengrants were made in November.The recipients will each match thefunds provided by the LFG withdonations from other sources.

TeamChild is a program of theAtlanta Legal Aid Society whichmatches pro bono attorneys withchildren who are in the court sys-tem. The attorneys assist the chil-dren in obtaining the educationaland mental health services thatthey need. Their challenge grant isin the amount of $2,000.

The Atlanta Volunteer LawyersFoundation’s Domestic ViolenceProject provides civil legal assis-tance, safety planning and referralservices through pro bono repre-sentation. This project creates avehicle for members of the Bar toserve the community. The grant isin the amount of $4,500.

The BASICS program is a 27-year-old program of the State Bar ofGeorgia. Its mission is to assistinmates of the state correctional sys-tem by providing

training and developing skills toprevent a return to the prison sys-tem by inmates. The grant is $4,500.

The Georgia Innocence ProjectPro Bono Initiative works with theGeorgia Association of CriminalDefense Lawyers to create a uniquepro bono opportunity. TheInnocence Project reviews post-con-viction criminal cases to determineif DNA evidence will establish theinnocence of the convicted individ-ual. The grant will be used to hire apart-time attorney to assist the probono attorneys in their efforts. Thegrant is in the amount of $4,500.

Georgia Legal Services hasestablished a program atthe Georgia CentralState Hospital incentral Georgia.This program,

Lawyers Foundation ofGeorgia’s Fourth AnnualChallenge GrantsBy Lauren Larmer Barrett

GBJ feature

the Olmstead vs. LC Project, willassist individuals who are in thatfacility, but capable of living andfunctioning in the community. Itprovides assistance in handling thepaperwork for leaving the facility— Medicaid benefits, communityplacement applications and more.The grant will be used to provide aparalegal to work with an attorneyin the Macon office of GeorgiaLegal Services. The grant is in theamount of $4,500.

The Georgia Jury CompositionProject seeks to develop an auto-mated, statistically valid prototypefor a statewide jury box fromwhich local jurisdictions can pullrepresentative jury pools. TheGeorgia Supreme Court has begunwork on this project. The grantawarded is $2,000.

The Juvenile Justice Fund hasestablished a Special EducationAdvocacy Program. The purpose ofthis program is to provide FultonCounty juvenile court judges withexpertise in the area of special edu-cation. It gives the judges thedetailed information they need tomake appropriate decisions aboutthe educational needs of juvenileoffenders, particularly those whosespecial needs are not being met bythe school system. The grantawarded is $2,000.

The mission of the LawyersFoundation of Georgia is toenhance the system of justice, tosupport the lawyers who serve itand to assist the community servedby it. The foundation seeks to fur-

ther these principles throughfinancial support of the charitableactivities of local, state and volun-tary bars of Georgia, including barsections and other law-relatedorganizations; by supporting edu-cation designed to enhance thepublic’s understanding of the legalsystem; and by supporting accessto justice. Educating the publicabout the law and lawyers, attract-ing high caliber individualsthrough the mock trial programand scholarships, and encouragingpro bono representation and com-munity service by attorneys is justpart of what the LawyersFoundation of Georgia can do.

Members of the legal professiontake great pride in the services andfunds we provide to the public asresponsible citizens and true pro-fessionals. Through the LawyersFoundation, we can build our col-lective capacity to do good.

Congratulations to all involvedwith the challenge grants for yourhard work and dedication, andgood luck with your projects! Thesegrants are made possible throughthe generous support of gifts to theLawyers Foundation of Georgia.

For more information, please con-tact Lauren Larmer Barrett, 104Marietta Street NW, Suite 630,Atlanta, GA 30303; (404) 659-6867; e-mail: [email protected].

Lauren LarmerBarrett is the execu-tive director of theLawyers Foundation ofGeorgia.

Looking for anew position?

Looking for a qualified professional?

Look no furtherthan the State Barof Georgia’sOnline CareerCenterwww.gabar.org

Post jobsPost resumesSearch jobsSearch resumes

Powered by the LegalCareer Center Network

The mission of the Lawyers Foundation of

Georgia is to enhance the system of justice,

to support the lawyers who serve it and

assist the community served by it.


February 2004 43

Even though IOLTA

(Interest On Lawyer

Trust Accounts) has

been in existence in Georgia since

1983, many lawyers and bankers

continue to have questions about it

and especially about how to set up

IOLTA accounts. This article will

try to answer the most common

questions and provide tips that can

make having an IOLTA account “a

totally painless way to give.” That

phrase was the slogan promoting

IOLTA by State Bar President Bob

Brinson and by then Chief Justice

Thomas O. Marshall during the

beginning phase of the program in

Georgia during the mid to late

1980s.

A Few Tricks You Should KnowManaging Your IOLTA Account

By Len Horton

GBJ feature

By following some of these tips,it will become apparent thatIOLTA really can be a totally pain-less way to give.

THE BASIC CONCEPT OF IOLTA

To make sure everyone under-stands the concept, a brief reviewof IOLTA may be useful. Mostlawyers at some time must holdclient funds in trust. If your prac-tice requires you to do that, thenyou will require a trust account.Regarding the money you holdthat belongs to any one of yourclients, you must make a decisionabout whether to put it in yourIOLTA account or whether toinvest the money for the benefit ofyour client.

If the amount of money youmust hold from one client is “nom-inal in amount” or is expected to beheld for an insignificant period oftime, then you put the money inyour IOLTA account. In general,you put monies from more thanone client in your IOLTA accountat the same time. The basic idea isthat, if you could invest the moneyfor an individual client so that netinterest could be generated for thatclient, then you should do so. Theonly client money going into yourIOLTA account is typically toosmall to generate net interest forthe client. When combined withother small or short-term amountsfrom many clients, however, thetotal becomes large enough to paythe account service charge and stillhave money left over.

You would be violating ethicsrules if you pocketed the interestearned. And you have already con-cluded that it would cost more toinvest the money for the client thanthe client would get, so it doesn’tmake sense to invest the money for

the client. You should put themoney in your IOLTA account andhave the interest in excess ofcharges go to a charity named bythe Supreme Court of Georgia toreceive that interest. The SupremeCourt of Georgia has ordered thatthe Georgia Bar Foundation shouldbe that recipient.

How do you know whether toinvest the money for the client or toput the money in your IOLTAaccount? The Supreme Court ofGeorgia lets each Georgia lawyerdecide. No matter where the Courtdrew the line, it would havechanged the way some firms prac-tice law. Instead, by deciding not todraw the line, it permitted eachlawyer to make the decision basedon his firm’s cost structure andoverhead. What does that freedommean? If you can invest a client’sfunds so that the interest generatedexceeds the cost of setting up theaccount and paying the costs asso-ciated with that account, then youshould invest it for the client.Otherwise, put the money in yourIOLTA account.

SETTING UP YOURIOLTA ACCOUNT

You need one piece of paper, theNotice To Financial Institution form.It is available from the Georgia BarFoundation office or from the StateBar of Georgia’s Web site athttp://www.gabar.org/gbf.asp. Or,if you prefer, the Bar Foundation willbe happy to mail or fax the form toyou. Sign the form and give one copyto your banker and send another tothe Georgia Bar Foundation at theaddress on the form. That’s it.

The most common concern ishow to get an IOLTA account freeof charges. The Supreme Court ofGeorgia has never told banks whatthey must do. It created IOLTA

through its right to discipline attor-neys. Any influence the Court mayhave on banks results only fromthe requirements it makes oflawyers and from competitionfrom other banks.

FACTS YOU NEED TO KNOW

Banks can make charges againstIOLTA accounts.

You cannot have your IOLTAaccount at a bank that refuses toparticipate in the OverdraftNotification program of the Officeof the General Counsel of the StateBar of Georgia. To be a financialinstitution approved by the Officeof the General Counsel of the StateBar of Georgia, a bank must sign anagreement supplied by ReginaKelley, overdraft coordinator of theOffice of the General Counsel. Youcan contact her at (404) 527-8737 orat [email protected] for the list ofapproved banks, or to discuss thespecifics of any overdraft of yourtrust account.

You cannot have your IOLTAaccount at a bank that makes thefollowing charges against the grossinterest generated by your account:account reconciliation charges,NSF charges, overdraft interestcharges, check printing charges,courier fees or wire transfer fees.That does not mean that the bankcannot charge you or your accountfor those charges, but merely thatthey cannot reduce the amountremitted to the Georgia BarFoundation.

NEGOTIATION WITH BANKS

In dealing with your banker, Isuggest the following strategy insetting up your IOLTA account ormodifying the one you already


have. First, ask to see your branchmanager or even the president ifyour bank does not have branches.Second, ask the branch manager orpresident for a free IOLTA account.Explain that the money is not yoursand that you are merely holdingmonies in trust for your clients,pending the resolution of legalmatters. If the bank charges theaccount and reduces the balance inthe account, then you, as thelawyer with fiduciary responsibili-ty for those funds, must put themoney back that was lost to thecharges. That constitutes a lot ofwork over the lifetime of a practice.Often merely asking your accountmanager for a free account will beall that is required for you to get anaccount free of charges.

If your banker refuses, you havethe option of finding a more sup-portive bank. If changing banks isnot an option, ask what minimumamount of money could you keepin your IOLTA account to warranthaving no charges. You might hear$1,500 or $2,000, sometimes more.Then ask whether you can keep theminimum balance in your operat-ing account instead of your IOLTA

account and get your IOLTAaccount free of charges. Even ifyour banker denies an account freeof charges, you should be able toget your banker to agree to applyany charges incurred against yourIOLTA account to your operatingaccount. This will save you thetrouble each month of having toreplace client money lost to thebank’s charges.

ASSISTING LAWYERSTO AVOID THE IOLTAREQUIREMENT

The Supreme Court of Georgiawas exquisitely sensitive to theneeds of lawyers when it issuedthe mandatory IOLTA order in1989. If your IOLTA account hasan average monthly balance of$5,000 or less, then you qualify tobe exempt from having to have anIOLTA account. By applying forand receiving an exemption, youcan have a non-interest-bearingchecking account for your pooledtrust account just as if IOLTA hadnever existed. One possible advan-tage is the increased likelihoodthat the bank will provide theaccount free of charges.

The Court even provided forthe possibility that you wouldthink of a reason to be exemptthat the Court had not consid-ered. You can write a letter to meand make your best argument asto why you should not have tohave an IOLTA account. If theIOLTA board agrees, you will getyour exemption.

FIXING MISTAKES INYOUR IOLTA ACCOUNT

Suppose you have to hold in trust$1 million from one client for severalmonths, and you mistakenly put it inyour IOLTA account for threemonths? Your client has justdemanded the interest on thosefunds. The Georgia Bar Foundationhas a policy in place to make arefund in that case. You will need toprovide bank statements and anexplanation about what happened,but you will be refunded the interestthat came to the Bar Foundation.

As pleasing as this policy is,some lawyers have been disap-pointed with it. Sometimes thelawyer and his client calculatewhat would have been earned forthe client if the lawyer had not

February 2004 45

SOUTH GEORGIA ADR SERVICE, LLCJERRY A. BUCHANAN - ColumbusJOHN A. DRAUGHON - Macon JAMES L. ELLIOTT - ValdostaBENJAMIN M. GARLAND - MaconROBERT R. GUNN, II - MaconJANE M. JORDAN - MaconJEROME L. KAPLAN - MaconSTANLEY KARSMAN - SavannahWALTER E. (BERT) KING, III - GrayMICHAEL S. MEYER VON BREMEN - Albany PHILIP R. TAYLOR - St. Simons IslandF. BRADFORD WILSON, JR. - Macon

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Your campaign gift helps low-income families and children find hope for a better life. GLSP provides criti-cal 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! Check-off the GLSP donation box on your State Bar Association Dues Notice, or usethe campaign coupon below to mail your gift today!

State Bar Campaign for the Georgia Legal Services Program

Yes, I would like to support the State Bar of Georgia Campaign for the Georgia Legal Services Program. I under-stand my tax-deductible gift will provide legal assistance to low-income Georgians.

Please include me in the following giving circle:

Pledge payments are due by December 31. Pledges of $500 or more may be paid in installments with the finalinstallment fulfilling the pledge to be paid by December 31. Gifts of $125 or more will be included in the Honor Rollof Contributors in the Georgia Bar Journal.

Donor Information:

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Please check one:Personal gift Firm gift

GLSP is a nonprofit law firm recognized as a 501(c) (3) by the IRS.Please mail your check to:

State Bar of Georgia Campaign for Georgia Legal ServicesP.O. Box 999 Atlanta, Georgia 30301

Benefactor’s Circle . . . . . . . . . . . . .$2,500 or morePresident’s Circle . . . . . . . . . . . . . . . . .$1,500-$2,499Executive’s Circle . . . . . . . . . . . . . . . . . .$750-$1,499Leadership Circle . . . . . . . . . . . . . . . . . . .$500-$749

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"And Justice for All"

made the mistake of putting it inhis IOLTA account. Investing itseparately for the client oftentimeswill generate more interest thanwas remitted to the BarFoundation from the IOLTAaccount. The official policy of theGeorgia Bar Foundation is torefund only what was actuallyreceived from the bank for theclient money held in an IOLTAaccount by mistake. The reducedamount can be explained by thefact that many banks chargeIOLTA accounts more than theycharge individual trust accountsset up to benefit just one client.

The Georgia Bar Foundation alsorefunds interest mistakenly remit-ted by banks. If the bank mistaken-ly remits more money to the BarFoundation than it should have,the Bar Foundation will issue arefund directly to the bank once avalid explanation with documenta-tion has been provided.

Sometimes a bank will send a1099 to a law firm. Because anIOLTA account may not havebeen set up by the bank as anIOLTA account, the interest sentto the Georgia Bar Foundation isreported on a 1099 form to theI.R.S. as income to the law firm. Inthat situation the bank should beasked to issue a corrected 1099 toshow that the interest generated isincome to the Georgia BarFoundation. Since the BarFoundation is exempt fromincome taxation because of its501(c)(3) status, banks are notrequired to send the 1099 to theBar Foundation. Whenever a bankdoes send the 1099 to the BarFoundation, it is placed in thatbank’s file.

One other common misunder-standing about IOLTA accountsinvolves the tax identification

number on the IOLTA account.You might think that the tax IDnumber would be that of the lawfirm. That is incorrect. The propertax identification number onevery IOLTA account in Georgiais 580552594, which is the ID forthe Georgia Bar Foundation. Ifyour law firm’s tax identificationnumber is on your IOLTAaccount, please ask your banker tocorrect the mistake. If your bankerrefuses, please call me, and I shallhelp your banker. Some bankersare troubled by the fact that thename on an account and the taxidentification number mustalways agree. The banker is cor-rect in every case except forIOLTA accounts.

We should all be grateful for theservice rendered by bankers tomake IOLTA work in Georgia. Inrecognition of this support,Georgia is the only state ever tohave had its Bar Foundation presi-dent be a full-time banker.

You may have heard that thereare questions about the legality ofIOLTA. Last March the SupremeCourt of the United States decidedthat IOLTA was not an unconstitu-tional taking of client property. Thatdecision ended the biggest threat toIOLTA’s existence. If any new legalattacks are launched againstIOLTA, I shall let you know imme-diately.

If you encounter any IOLTAaccount problem not mentioned,please call me. Usually I can pro-vide immediate assistance, but ifyour problem is unique or new, Iwill get an answer for you. Inmost cases, following these sug-gestions should make IOLTA apainless way to help your com-munity and to solve some ofGeorgia’s most pressing law-related problems.

The Georgia Bar Foundation isworking to ensure that yourIOLTA contributions have thebiggest impact possible. Its over-head as a percentage of IOLTA rev-enues is one of the best figures inthe nation, typically less than sixpercent. It has a rich history ofworking closely with the State Bar,never having declined to fund anyrequest from the State Bar ofGeorgia. Your Georgia BarFoundation is the largest and mostinclusive legal charity in Georgia.On behalf of its Board of Trustees,we thank you for your support ofIOLTA and the Bar Foundation.

Len Horton is theexecutive director ofthe Georgia BarFoundation.

February 2004 47

KUDOSShayna M. Steinfeld, of Steinfeld &Steinfeld, P.C., received a joint certifica-tion in business bankruptcy law and con-sumer bankruptcy law from theAmerican Board of Certification. Shealso spoke on “Hot Topics of Consumer

Bankrutpcy Cases” at the National Conference ofBankruptcy Judges in San Diego.

Managing Intellectual Property Magazine has rankedKilpatrick Stockton’s trademark litigation practice as thefourth leading practice in the country. Kilpatrick Stocktonis the highest-ranked general practice firm on the list.

The Lawyers Foundation of Georgia, the philanthrop-ic arm of the State Bar of Georgia, elected N. HarveyWeitz to its Board of Trustees. Weitz is a partner withthe Savannah firm of Weiner, Shearouse, Weitz,Greenberg & Shawe, LLC.

Jesse G. Bowles III became a Fellow of the AmericanCollege of Trial Lawyers in a ceremony at the organi-zation’s annual meeting. The college includes some5,200 lawyers from all branches of trial practice in theUnited States and Canada. Its members must have atleast 15 years of trial experience and exhibit the higheststandards of ethical conduct, professionalism, civilityand collegiality.

Laurin M. McSwain, of Lekoff, Duncan, Grimes,Miller and McSwain, was appointed vice chairpersonof the board of directors of the southeast affiliate of theAmerican Heart Association. She has volunteered forthe AHA for three years and recently served as a mem-ber of the board of directors, Georgia Affiliate; chair ofthe Georgia Planned Giving Committee; member of theSoutheast Affiliate Executive Committee; and pro bonolegal counsel for the Southeast Affiliate.

The National Association of Criminal DefenseLawyers presented Gary Parker with the prestigiousChampion of Indigent Defense Award. The annualaward recognizes a group or individual for outstandingefforts in making positive changes to a local, county,state or national indigent defense system, through legis-lation, litigation or other methods.

For the fifth year in a row, Kilpatrick Stockton partnerPhillip Street was named to the Atlanta BusinessChronicle’s annual “Who’s Who in Health Care” list,which represents leaders of Georgia’s health care indus-try. Street is chair of Kilpatrick Stockton’s health care andlife sciences practice group. His primary area of practiceis health care and life sciences transactions, includingbusiness mergers, acquisitions and joint ventures and thecommercialization of life sciences research.

Atlanta attorneys JudsonGraves and Richard A.Horder have received aSpecial Recognition forOutstanding Pro BonoService by the Florida Bar’sOut-of-State Practitioners

Division. Graves and Horder were two of six out-of-stateFlorida attorneys to receive this award, which recognizestheir contribution of pro bono legal services both this yearand throughout their career. Graves is a partner with Alston& Bird, and concentrates his practice in general litigationwith an emphasis on medical malpractice and products lia-bility defense. He chairs Alston & Bird’s pro bono com-mittee. Horder is the head of the environmental practicegroup of Kilpatrick Stockton in Atlanta, and he also chairshis firm’s pro bono committee.

ON THE MOVEIn AlpharettaAlan L. Newman announced that he has relocated hislaw firm to Alpharetta and will continue to practice in theareas of construction litigation, plaintiff’s personal injuryand wrongful death litigation, including products liabili-ty, professional negligence and trucking accident cases.The firm, Alan L. Newman, P.C., is located at ParkPlaza, Suite 150, 178 South Main St., Alpharetta, GA30004; (678) 205-8000; Fax (678) 205-8002.

In AtlantaRhett Laurens recently announced the opening of TheLaurens Firm, LLC. Rhett is both an attorney and CPA,and his practice will concentrate on income taxes, wills,trusts and estate planning. A native of Atlanta, he complet-ed his undergraduate work at Oglethorpe, earned his MBAat Yale, and his juris doctorate at Harvard. His office islocated near Ansley Mall at 1518 Monroe Drive NEAtlanta, GA 30324; (404) 228-4228; Fax (404) 881-0801.

Freed & Berman, P.C. announced that it has changedits name to Berman Fink Van Horn P.C. The firm willcontinue to represent clients in all types of commercial,employment and real estate litigation and transactions,dispute resolution, asset protection and succession plan-ning. The firm is located at 3423 Piedmont Road NE,Suite 200, Atlanta, GA 30305-4802; (404) 261-7711;Fax (404) 233-1943.

Powell, Goldstein, Frazer & Murphy LLPannounced that Daniel C. Deckbar has joined thefirm’s product liability, environmental and personalinjury practice. He focuses his practice in litigation,arbitrations, and mediations before administrative andregulatory boards. Deckbar earned a bachelor’s degreein communication at Vanderbilt University and his juris


Benc

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Bar

Graves Horder

doctorate at the University of Memphis. The firm islocated at 191 Peachtree St. NE, 16th Floor, Atlanta,GA 30303; (404) 572-6600; Fax (404) 572-6999.

Smith Moore LLP moved to a new, 14,250-square-footoffice location on the 37th floor of the prestigious OneAtlantic Center at 1201 West Peachtree Street, consideredone of Atlanta’s most prominent and desirable businessaddresses. The move signals Smith Moore’s increasingpresence in the Atlanta market and the SoutheasternUnited States. The new address is One Atlantic Center,1201 W. Peachtree St., Suite 3700, Atlanta, GA 30309;(404) 962-1000; Fax (404) 962-1200.

Jim Woodward joined the law firm of Miller &Martin as an associate in their Atlanta office. He willcontinue to build his practice in the areas of publicfinance and corporate and securities law. Woodwardreceived a bachelor’s degree in English from Stanfordand earned his juris doctorate from the University ofVirginia. Miller & Martin’s Atlanta office is located at1275 Peachtree St. NW, 7th Floor, Atlanta, GA 30309;(404) 962-6100; Fax (404) 962-6300.

K. James Sangston joined McGuireWoods’ Atlantaoffice as an associate in the corporate services depart-ment. His practice will focus on emerging growth andtechnology, intellectual property, and mergers and acqui-sitions. Sangston earned his law degree summa cumlaude from Georgia State University and his bachelor’sdegree from the University of Pennsylvania. He alsoholds a master’s degree in electrical engineering fromThe George Washington University. McGuireWoods’Atlanta office is located at The Proscenium, 1170Peachtree St. NE, Suite 2100, Atlanta, GA 30309-7649;(404) 443-5500; Fax (404) 443-5599.

Needle & Rosenberg announced that Miles Hall hasjoined the firm as an associate in the biotechnologypractice group. Hall is a doctor of veterinary medicine;he earned his juris doctorate in 2003. The firm is locat-ed at Suite 1000, 999 Peachtree St., Atlanta, GA30309; (678) 420-9300; Fax (678) 420-9301.

Bridget Christian has joined the law firm of Hoffman &Associates, Attorneys-at-Law, L.L.C. in the area of estateplanning. Christian’s former practice included estate plan-ning, probate and business law, and corporate matters. Thefirm is located at 6075 Lake Forrest Drive, Suite 200,Atlanta, GA 30328; (404) 255-7400; Fax (404) 255-7480.

McGuireWoods LLP announced that John A. LockettIII has joined their Atlanta office as an associate in thecommercial litigation department. His practice willfocus on fiduciary litigation, partnerships and joint ven-tures, and intellectual property litigation. Lockett earnedhis bachelor’s degree magna cum laude from theUniversity of Alabama, his master’s degree with merit

from the London School of Economics and PoliticalScience, and his law degree from the University ofTexas. McGuireWoods’ Atlanta office is located at TheProscenium, 1170 Peachtree St. NE, Suite 2100, Atlanta,GA 30309-7649; (404) 443-5500; Fax (404) 443-5599.

Glenn Loewenthal, Gordon M. Berger and ShannanS. Collier announced the formation of a new law firm,Berger, Collier & Loewenthal, LLC. Loewenthal wasformerly a founding partner with the Buckhead lawfirm of Loewenthal, Fleming & Fried, P.C.; Berger wasa partner in Berger Posner, LLC, and Collier was a soleproprietor. The new office is located at One OvertonPark, 3625 Cumberland Blvd., Suite 380, Atlanta, GA30339; (678) 990-4910; Fax (678) 990-4919.

In ColumbusPage, Scrantom, Sprouse, Tucker & Ford, P.C.announced that Bobby L. Scott and Linda T. Damhave become associates in the firm. The office is locat-ed at 1043 Third Ave., Columbus, GA 31901; (706)324-0251; Fax (706) 323-7519.

In MaconJohn P. Cole was recently named vice president forcharitable and estate planning at Mercer University. Hewill work with alumni, donors and their consultants tosupport Mercer’s fund-raising efforts. Cole was previ-ously vice president for university admissions atMercer. He also serves as a major of in the ArmyReserve, and was the headquarters commandant of theNational Guard’s 48th Infantry Brigade in Macon in2000 and 2001. Mercer University is located at 1400Coleman Ave., Macon, GA 31207-0001; (478) 301-2715; Fax (478) 301-4124.

In ValdostaYoung, Thagard, Hoffman, Smith & Lawrence, LLPannounced that Charles A. Shenton IV has becomeassociated with the firm. The office is located at 801Northwood Park Drive, Valdosta, GA 31602; (229)242-2520; Fax (229) 242-5040.

In Cincinnati, OHUlmer & Berne LLP announced the addi-tion of Jennifer L. Snyder to its Cincinnatioffice as an associate in the firm’s liabilitydefense group. She will concentrate onproduct liability defense and pharmaceuti-cal and medical device litigation. Snyder is

a graduate of Kenyon College and Emory UniversitySchool of Law, as well as a member of the American,Georgia and Ohio Bar Associations. The firm’s office islocated at 600 Vine St., Suite 2800, Cincinnati, OH45202-2409; (513) 762-6200; Fax (513) 762-6245.

February 2004 49

Bench &Bar

H a!” your associate hoots as he

enters your office. “You won’t

believe this one! We just got

an e-mail from some guy who wants us to

sue BigCo for him!”

“Does he realize that BigCo is ourbiggest client?” you wonder.

“I guess not; looks like he sent this samerequest for help to at least 20 other lawfirms. Look at this! He used to work forBigCo, and got fired for alleged miscon-duct. He’s claiming he has a bunch of evi-dence that BigCo has violated environmen-tal laws. He has even attached some of it tothe e-mail.”

A quick look at the e-mail confirms thatthis potential client has sent the same letterto two dozen lawyers. “This guy must benuts,” your associate exclaims. “I can’t waitto send his e-mail to Big Guy over at BigCo!”

“Hold on,” you caution. “Let’s think thisthrough. Don’t the ethics rules require usto keep the confidences and secrets of evenpotential clients? It’s possible that just byreceiving this e-mail, we’re going to be

conflicted out of work for BigCo. This guycould be crazy like a fox.”

What are the obligations of a lawyerwho receives unsolicited e-mail frompotential clients? Does the sender have anyright to the protection of the confidencesand secrets rule, which normally doesapply to consultations with potentialclients? Can the sender rightfully expectthat a lawyer who receives an unsolicitede-mail won’t use information contained inthe e-mail to the detriment of the sender orfor the benefit of someone else?

Georgia Rule of Professional Conduct1.6, Confidentiality of Information,requires a lawyer to maintain as confiden-tial “all information gained in the profes-sional relationship with a client.”1 Itapplies to information a lawyer learns in aconsultation, even when that consultationdoes not lead to actual representation.

But what about unsolicited e-mails? Arethey the same as a “consultation” for pur-poses of the ethics rules?

Georgia has not issued a formal advisoryopinion on point; however, the American BarAssociation and several states have rules oropinions addressing the topic. Uniformly, theABA and other states have found that “a per-


Offi

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f the

Gen

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Cou

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Do Ethics Rules RequireLawyers to Keep theConfidences and Secretsof Potential Clients?By Paula Frederick

“

son who communicatesinformation unilaterallyto a lawyer, without anyreasonable expectationthat the lawyer is willingto discuss the possibilityof forming a client-lawyer relationship, isnot a ‘prospectiveclient’” who deserves theprotection of the confi-dentiality and conflictsrules.2

One state makes a dis-tinction for lawyers whoreceive e-mails inresponse to a Web solici-tation. The Committeeon Rules of ProfessionalConduct of the State Barof Arizona cautionslawyers who advertisetheir services on theInternet that by doing sothey implicitly agree toconsider forming anattorney/client relation-ship with anyone whoresponds to the adver-tisement. A potentialclient responding tosuch a solicitation couldexpect that informationwould be held in confi-dence. To avoid prob-lems, the Arizona opin-ion suggests that theWeb site must containdisclaimers notifyingpotential clients whether

their inquiries will betreated as confidential.

No state has issued anopinion prohibiting therecipient of an unsolicit-ed e-mail from usinginformation containedin the e-mail, even to thedisadvantage of thesender. Thus, in thehypothetical above,your associate is free toforward the e-mail towhomever he chooses.

For help with allyour ethics dilemmas,don’t forget to call theOffice of GeneralCounsel on the EthicsHotline, (404) 527-8720or (800) 334-6865.

Paula Frederick is thedeputy general counselof the State Bar ofGeorgia.

Endnotes1. The limited exceptions

to the requirement ofconfidentiality can befound at Rule 1.6(a)and (b).

2. In 2002 the ABAamended the ModelRules of ProfessionalConduct to add a newRule 1.18, Duties toProspective Client. Thequote above is fromComment 2 to Rule1.18.

February 2004 51

Uniformly, the ABA and other states have found that “a person who

communicates information unilaterally to a lawyer, without any rea-

sonable expectation that the lawyer is willing to discuss the possibility

of forming a client-lawyer relationship, is not a ‘prospective client’”

who deserves the protection of the confidentiality and conflicts rules.

Discipline Notices(Oct. 17, 2003 through Dec. 11, 2003)By Connie P. Henry

DISBARMENTS/VOLUNTARYSURRENDEREdward James BrantleyAtlanta, Ga.

By order dated Oct. 20, 2003, the SupremeCourt of Georgia accepted the Petition forVoluntary Surrender of License of EdwardJames Brantley (State Bar No. 078225). Amortgage company asked Brantley to close areal estate transaction for a borrower andwire transferred $238,902.14 to Brantley’strust account. After the loan transaction failedto close, Brantley would not return themoney. The funds are no longer in Brantley’strust account and he is unable to return thefunds to the mortgage company.

George Thomas CoumarisWashington, D.C.

By order dated Nov. 10, 2003, the SupremeCourt of Georgia disbarred George ThomasCoumaris (State Bar No. 190250) from thepractice of law in Georgia. Coumaris was con-victed of conspiracy to commit crimes againstthe United States in the United States DistrictCourt for the District of Columbia.

SUSPENSIONSR. Dale PerryGainesville, Ga.

By Supreme Court of Georgia order datedNov. 10, 2003, R. Dale Perry (State Bar No.572785) has been suspended from the practiceof law in Georgia for a period of six months.Perry received $3,000 in fiduciary funds andcommingled those funds with his own. When agrievance was filed, Perry forwarded a cashier’scheck to the Probate Court of Athens-ClarkeCounty in the amount of $5,495.27, includingthe principal amount plus interest.

Leonard H. Queen Sr.Sparta, Ga.

By Supreme Court of Georgia order datedNov. 10, 2003, Leonard H. Queen Sr. (State

Bar No. 590815) has been suspended from thepractice of law in Georgia for a period of thir-ty months. In December 1997 Queen repre-sented a client on a DUI charge. The clienttold Queen that she had received a notice offoreclosure on her home and that she couldnot pay the taxes. Queen and his clientagreed that the client would transfer theproperty to Queen who would pay the taxeswhile the client continued to live on the prop-erty. In July 1998 Queen presented his clientwith a two-year lease/purchase documentsetting rent at $500 per month and providingthat title to the property would be recon-veyed to the client at the end of the lease.When the client failed to perform under thelease, Queen dispossessed her. Queen did notinform the client of his possible conflict ofinterest in the transaction.

Stephen T. MaplesDecatur, Ga.

By Supreme Court of Georgia order datedNov. 10, 2003, Stephen T. Maples (State BarNo. 469950) has been suspended from thepractice of law in Georgia for a period of 24months with conditions under reinstatement.Maples received $10,000 in 1995 from the sis-ters of a convicted criminal defendant to rep-resent their brother on motion for new trialand appeal. He filed the motion for new trial,met with the client and previous counsel,reviewed the transcript and forwarded it tothe client asking him to call to discuss theappeal. The client did not call and Maplesnever contacted him again. The sistersattempted but failed to reach Maples onnumerous occasions. Maples did not speakwith them again until November 1997.Maples has been the subject of five prior dis-ciplinary actions.

Connie P. Henry is the clerk of the StateDisciplinary Board.


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What a Wonderful Web Site!By Natalie R. Thornwell

W ith over nine million Web

sites on the Internet, who

doesn’t love discovering a

useful Web site? We certainly do, and since we

come across some great sites that a lot of attor-

neys say they have never heard of, we decided

to share the sites we know about with you —

every week! By visiting the LPM Department’s

Web page at www.gabar.org/lpm.asp, you

can now not only access a listing of practice

management resources, information on con-

sultations, articles, sample forms, and a Tip of

the Week, but also a brand new section: Web

Site of the Week.

Under the new Web Site of the Week area,you will find sites that are useful, interesting,and even fun. From topics on practice man-agement, legal research, technology to sub-stantive law, you are bound to find a site thatinterests you. And, to whet your appetite a

bit more, here are a few of the sites you arelikely to see in the weeks to come:

www.google.com — This is the ultimatesearch engine site on the Internet. You canfind anything on the Internet, in group dis-cussion boards, etc. You can search forimages and even check out the news andstock quotes. Also, you can download theGoogle toolbar which can be added as a tool-bar on your browser for faster searching. Thetoolbar also boasts some pretty cool popup-blocking functionality.

www.llrx.com — One of the greatest legalresearch sites ever! LLRX.com is a unique,free Web journal dedicated to providing legaland library professionals with the most up-to-date information on a wide range ofInternet research and technology-relatedissues, applications, resources and tools,since 1996. The site has columns, feature arti-cles, topical research guides, and legal-techand library related news resources.

www.point.com — Need a new cellphone? Don’t know what service plans cost?Want to know if your phone has coverage inthat part of the state? This site is a good start-ing place for shopping for a new cell phoneor new service. Enter your zip code to findout what phone vendors service your areaand what phones and coverage areas are

February 2004 53

Law

Pra

ctic

eMan

agem

ent

included in certainplans. You can com-

pare plans and phones too.www.tinyurl.com — Ever get

those super-long URLs in an e-mailand attempt to copy and pastethem into your browser? You cannow eliminate the old “copy andpaste; copy the remainder andpaste” routine at this site. You canload in the long URL and the siteconverts it to a short URL that willwork every time you need to getback to that site. You can even sendthe little guy back to the personwho tagged you with the long URLin the first place.

www.solosez.net — Solosez is aListserv that generates hundreds

of e-mails a day. Some of thewonderful nuggets of infor-

mation you need can easilybe buried in that 135thmessage, but now thegroup has a Web site thathelps getting to the mean-ingful stuff a little easier.The ABA’s Standing

Committee on Solo andSmall Firm Practitioners has

developed this site of resourcesfor solo and small firm practition-ers. Learn about upcoming CLEevents, find a consultant or ven-dor, access links for small businessand a lot more.

www.vitalrec.com — You cansearch for and even order vital

records from anywhere in thecountry on this incrediblesite. With a full listing of all

vital records offices across theUnited States you are sure to findthe vital records information youneed. There are also links to otherpublic record searching directoriesand sites.

www.protonic.com — Ever hadcomputer problems that you thinkwould be easy to solve? Howabout some good, free tech sup-port? That’s right, the support here

is free. This site allows you to entera brief description of your comput-er problem, and the tech expert vol-unteers working for the site willsend you a solution via e-mail. It’sa good site for nagging problemsfor which you don’t need an imme-diate fix. Also, don’t forget to runthe solution by your IT folks if youhave them.

www.gabar.org — The State Barof Georgia’s Web site is a wonder-ful resource for any Georgia Barmember. The site has a listing ofresources for attorneys and thepublic. Learn about important Barissues, visit departments and pro-grams like Law PracticeManagement for resources, reviewBar rules, check your CLE credits,browse the Bar Journal archives oreven look up another Georgialawyer in the online directory. Ifyou are a Georgia Bar member, thissite is a must for your favorites.

Visit our Web site today for evenmore great sites or call us withsome that you know about at (404)527-8770 or (404) 527-8772.

Natalie R. Thornwell is the director of the Law PracticeManagement Program of theState Bar of Georgia.

February 2004 55

More than 25 clinical staff in behavioral healthfrom around South Georgia attended a trainingseminar on how to be more effective in court andhow to handle privacy issues while in court. Thisin-service program, held at the Tift County court-house, was given by attorney Rob Reinhardt. Afterthe training, the participants toured the State BarSatellite Office where they enjoyed viewing localart work.

Bonne Cella is the administrator of the StateBar’s South Georgia Office.


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(Left to right) Bruce Taylor, Greg Corman(Fireman’s Fund), Tom Tobin (Henning Mediation)and Byron Hays (Structured Financial Assoc.).

CASA (CourtAppointed SpecialAdvocate) is a pro-gram to see thatabused children areplaced in safe, lovinghomes as soon aspossible. As afundraiser for theprogram, civic groupsand individuals builtminiature houses anddisplayed them onthe lawn of the TiftCounty CourtHouse. Tickets weresold and drawingswere held in threecounties for the play-houses.

The Valdosta Office of Georgia LegalServices meets monthly at the State BarSatellite Office. Children who accompanytheir parents are encouraged to enjoybooks provided by the local ReadingCapitol of the World committee.

South Georgia Office Stays BusyBy Bonne Cella

T he locals say, “Come back to

Jamaica,” and it’s an easy request

to fulfill. Things tend to stay the

same in Jamaica — every morning the sun

comes up in amazing brightness and curtains

of white clouds pull back to expose an

expanse of blue. The sea, in its swirling

greens and blues, beckons to you as it laps

the white sandy shore.

So come back they did. Sixteen years afterthe first Entertainment and Sports LawConference was held in Negril with an atten-dance of only fifteen people (including guests),the Southern Regional Entertainment, Sports

Law and Intellectual Property Conference metat the Ritz-Carlton Hotel and Resort in RoseHall, Jamaica, for a successful three-day semi-nar that gave attending attorneys a full year ofCLE credit.

The conference began in 1987 with just afew entertainment and sports attorneys andhas continued to grow each year. The grouphas always met “off shore” in locations suchas Puerto Vallerta, Curaçao and Costa Rica. In2000, Greg Kirsh, then-chair of the Bar’sIntellectual Property Law Section, along withDarryl Cohen, one of the conference’sfounders, decided to join forces and the con-ference expanded to include the IntellectualProperty Law Section.

This year the Entertainment and Sports Lawand Intellectual Property Law sections of theState Bar of Georgia were joined by the enter-tainment, arts and sports sections from the

February 2004 57

Sect

ion

New

sICLE Conference DrawsHundreds to JamaicaBy Johanna B. Merrill

Sally Papacharalambous of MGM in Los Angeles; Entertainment and Sports Law Section ChairAlan S. Clarke and Craig J. Muench, CPA, Director of Business Management with GurseySchneider & Co., LLP in Los Angeles share a coconut drink during the conference.

Florida Bar and the Tennessee BarAssociation to bring the total confer-ence attendance to almost 300.

The long weekend kicked off onThursday, Nov. 13, with a cocktailhour and dinner at the Rose HallGreat House, which was once hometo the legendary “white witch”Annie Palmer. Attendees were ableto tour the 223-year-old great housebefore dinner, and learned the storyof its cruel mistress who, as legendhas, murdered three husbands onthe property before she was killedduring a slave uprising in 1831.After the tours everyone made theirway down a sloping, green hill tofind a splendid Jamaican-style buf-fet and local musicians. DarrylCohen, chair of the Florida Bar’sEntertainment, Arts and Sports LawSection, welcomed everyone toJamaica and officially kicked off theconference and festivities.

Sessions started bright and earlyafter registration on Friday withtopics ranging from New Media


The Ritz-Carlton in Rose Hall, Jamaica hosted the 16th Annual Southern Regional Entertainment, Sports Law andIntellectual Property Conference.

YLD Director Deidra Sanderson; Lisa Furjanic and Maria Baratta, both asso-ciates with Kilpatrick Stockton LLP; and Section Liaison Johanna Merrillattend a social gathering during the conference.

Licensing to Litigating in the DigitalAge. The conference was structuredto give attendees their afternoonsfree so they could spend time enjoy-ing the sandy beaches and thegreens of the world-renownedWhite Witch Golf Course.

On Friday night a cocktail partywas held on the west lawn of thehotel’s grounds. The reggae musicand rum drinks were constantreminders of the tropical location.

Sessions on Saturday andSunday mornings covered topicssuch as updates on patent, copy-right and trademark case law,music contracts, technology trendsin IP law, the state of the musicindustry, book deals, advanced IPlitigation and sports and the lottery.

The farewell dinner on Sundaynight took place on the beach. Thepalm trees were lit in an array oftropical colors, and attendees dinedon Jamaican fare for a final time.

If you have any suggestions forfuture locations or events, contactDarryl Cohen at [email protected] more information on past confer-ences, or to stay abreast of futureplanning, visit www.selaw.org.

NEWS FROM THE SECTIONSAppellate Practice Section

By Christopher McFaddenCase Law Update - Dec. 15, 2003.Canoeside Props. v. Livsey,

S03A0966, 2003 Fulton County D.Rep. 3496, 2003 WL 22794704, 2003Ga. LEXIS 1020 (Ga., November 26,2003).

The Supreme Court has liberal-ized one aspect of appellate prac-tice, authorizing trial courts to savelitigants who miss crucial dead-lines in the interlocutory appeal

procedure. The Supreme Courtheld that trial courts may give liti-gants who miss crucial deadlines inthe interlocutory appeal process asecond chance. In so holding, how-ever, the Supreme Court drew afine distinction between dismissalsbecause of procedural defaults ofinterlocutory appeals pursuant toO.C.G.A. § 5-6-34 (b) and dis-missals because of proceduraldefaults of direct appeals, includ-ing direct appeals from partialgrants of summary judgment pur-suant to O.C.G.A. § 9-11-56 (h).

The interlocutory appeal processhas three crucial deadlines. First, acertificate of immediate reviewmust be secured from the trialcourt and filed with the clerk ofthat court within 10 days of entryof the order to be appealed.Second, an application to appealmust be filed with the appellatecourt within 10 days after the cer-tificate is granted. Finally, after theapplication is granted, a notice ofappeal must be filed within 10days. O.C.G.A. § 5-6-34 (b).

In Canoeside, Ferdinand, a partyseeking to appeal the denial of hismotion for partial summary judg-ment timely secured and filed acertificate of immediate review.But he failed to properly file hisapplication for interlocutoryappeal in a timely fashion. The trialcourt vacated and re-entered thecertificate of immediate review, butthe Court of Appeals dismissedthis second application because thesecond certificate of immediatereview was filed more than 10 daysafter the summary-judgment order.On remand the trial court madeanother effort to rescue Ferdinand.This time the trial court vacatedand reentered both the summary-judgment order and the certificateof immediate review. This time

Ferdinand filed his application inthe Supreme Court, which was theproper court. The Supreme Courtheld that there was “no impedi-ment to the trial court’s action” anddecided the appeal on its merits.

In holding that the merits couldbe decided, the Supreme Courtoverruled an earlier decision of theCourt of Appeals, InternationalIndem. Co. v. Robinson, 231 Ga. App.236, 498 S.E.2d 795 (1998). TheRobinson court had held “that adismissal of an interlocutory appealfor a procedural fault carries with itres judicata effect which foreclosesthe issue from further appellatereview.” Overturning Robinson, theSupreme Court held, “A defectiveattempt to seek interlocutoryreview pursuant to O.C.G.A. § 5-6-34 (b) does not have the effect ofmaking the judgment appealedfrom res judicata of the issue.”

In overruling Robinson, theSupreme Court distinguishedinterlocutory appeals pursuant toO.C.G.A. § 5-6-34 (b) from directappeals of partial grants of summa-ry judgment pursuant to O.C.G.A.§ 9-11-56 (h). As to appeals frompartial grants of summary judg-ment, the Supreme Court adheredto an earlier holding that “if the los-ing party suffers dismissal of his §9-11-56 (h) appeal for failure to ful-fill procedural requirements, thelosing party should, in return forhis privilege of direct appeal, sufferthe same sanction of res judicatawhich attaches to a final judgmentfrom which a procedurally defec-tive appeal is taken.”

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

February 2004 59


Administrative LawHon. John B. Gatto, Atlanta404-818-373 Fax: [email protected]

Agriculture LawDouglas A. Henderson, Atlanta404-885-3479 Fax: [email protected]

Alternative Dispute Resolution LawR. Wayne Thorpe, Atlanta404-88-0900 Fax: [email protected]

Antitrust LawRandall L. Allen, Atlanta404-881-7196 Fax: [email protected]

Appellate Practice Dorothy Y. Kirkley, Atlanta404-892-8781 Fax: [email protected]

Aviation LawE. Alan Armstrong, Atlanta770-451-0313 Fax: [email protected]

Bankruptcy LawLaura E. Woodson, [email protected]

Business Law Charles R. Beaudrot Jr., Atlanta404-233-7000 Fax: [email protected]

Corporate Counsel LawPaul R. Shlanta, Atlanta404-584-3430 Fax: [email protected]

Creditor's Rights LawJay E. Loeb, Co-Chair, Atlanta678-686-6630 Fax: [email protected] B. Wilensky, Co-Chair, Atlanta404-584-1200 Fax: [email protected]

Criminal LawJ. Michael Cranford478-746-0704 Fax: [email protected]

Elder Law Ruthann P. Lacey, Atlanta770-939-4616 Fax: [email protected]

Eminent Domain Charles L. Ruffin, Macon478-750-0777 Fax: [email protected]

Entertainment & Sports Alan Stuckey Clarke, Atlanta404-816-9800 Fax: [email protected]

Environmental LawSusan H. Richardson, Atlanta404-815-6330 Fax: [email protected]

Family Law Thomas F. Allgood Jr., Augusta706-724-6526 Fax: [email protected]

Fiduciary Law Neil A. Creasy, Savannah912-925-7200 Fax: [email protected]

General Practice & TrialW. Wright Gammon Jr., Cedartown770-748-2815 Fax: [email protected]

Government AttorneysSharon T. Ratley, Macon478-621-2627 Fax: [email protected]

Health LawRod G. Meadows, Stockbridge770-957-1199 Fax: 770-954-1199

Individual Rights LawMichael Monahan, Atlanta404-527-8762 Fax: [email protected]

Intellectual Property Law Scott M. Frank, Atlanta404-249-3345 Fax: [email protected]

International LawJames Y. Rayis, Atlanta404-261-6020 Fax: [email protected]

Labor & Employment Law Georgia Kay Lord, Decatur404-601-4132 Fax: [email protected]

Legal Economics Law Robert G. Brazier, Atlanta404-221-6506 Fax: [email protected]

Local Government LawLaurel E. Henderson, Decatur404-378-7417 Fax: [email protected]

Military-Veterans AffiarsStephen Scot Sikes, Richmond [email protected]

Product Liability Law Albert M. Pearson III, Atlanta404-261-0016 Fax: [email protected]

Real Property Law Rachel K. Iverson, Alpharetta770-781-3000 Fax: [email protected]

School & College LawPatrick W. McKee, Newnan404-683-8900 Fax: [email protected]

Senior Lawyers Law Harry L. Cashin Jr., Atlanta404-853-5050 Fax: [email protected]

Taxation Law Douglas R. Thompson, Atlanta404-365-5682 Fax: [email protected]

Technology Law Ann Moceyunas, [email protected]

Tort & Insurance Practice James F. Taylor III, Atlanta404-874-8800 Fax: [email protected]

Workers' Compensation Law Douglas A. Bennett, Atlanta404-888-6106 Fax: [email protected]

Updated Section Chair ListingOn page A-15 of the 2003-04 Directory and Handbook, the 2002-03 section chairs were listed instead of the 2003-04

chairs. Following is an updated listing. As a reminder, you can always find the most up-to-date information on theBar’s Web site at www.gabar.org.

Views From a ProsecutorBy Dennis Sanders

Ethics. Professionalism. Nothing

seems to chase lawyers from a

room more quickly than when

those two words are spoken. While those

standards are assigned to maintain the digni-

ty of our profession, modern attorneys sim-

ply view those concepts as hurdles

to overcome in order for us to

become victorious. And victory in

the mind of many attorneys has

become synonymous with justice.

To regress in my personal life, Irecall how I made up my mind as afreshman in high school that notonly did I want to become a lawyer,but decided at the age of 15 that Iwanted to attend Mercer Universityand Mercer Law School. The attrac-tion to me even at that early agewas that the practice of law was oneof the most honorable professionsto which an individual could dedi-cate his life. The profession of lawwas mentioned in the same breathas doctors and ministers. Todayhowever, the practice of law is fre-quently mentioned with the samerespect given to used car salesmenand sports agents.

The biggest problem that our Bar is facingis not if we should have the new Bar Center,nor is it whether Bar dues should be raised.Rather, the largest challenge facing our Barand each of us as attorneys is that our profes-sion is self-destructing. The saddest part isthat we, the attorneys, are the ones destroy-ing the profession that we all were so eager toenter. The enemy is not the media, or thepublic; the enemy is us.

February 2004 61

Prof

essio

nalis

mPa

ge

Chief Justice Clark used to say,“Ethics is what is required, andprofessionalism is that which isexpected.” But how many of usagree with Justice Clark? I suspectthat a large number of us viewethics as those things that areunfortunately required, and pro-fessionalism as that which is onlysuggested but thankfully notrequired. The Justices of our high-est court are concerned over whatthey see as a general decline in val-ues by our Bar members. JusticeBenham has addressed this issueon many occasions. Justice Hun-stein, addressing the prosecutors ofGeorgia a few years ago, expressedher concern over where our Barwas headed and how the publicperception of our profession hasdiminished dramatically. ChiefJustice Fletcher is sending out thismessage routinely as he chairs thecommission on professionalism.Justice Carley will quickly tell youthat he is genuinely concerned overthe lack of professionalism thatseems to be the trend in our profes-sion. These leaders are in a positionto see daily how our profession isceasing to be the honorable profes-sion it once was, and they are con-cerned over the direction that weare headed. Meanwhile, we attor-neys are becoming much more con-cerned with the outcome of ourcases rather than how we accom-plish that outcome.

During my career of over 30years as a prosecutor, I have hadthe pleasure of facing many out-standing attorneys. There are sev-eral within my own circuit that I

face on a regular basis and appre-ciate their friendship and skills. Ihave also had the pleasure ofworking with a number of out-standing attorneys outside of mycircuit. Many come to mind, butmost notably are Denmark Groverof Macon, Roosevelt Warren ofSparta, Ed Tolley of Athens, andJudges Jack Ruffin and JimBlanchard of Augusta. Each ofthese attorneys had something incommon in addition to their out-standing trial abilities. I have neverknown any of them to conductthemselves in anything but thehighest manner as demanded byour honorable profession. Theirword was their bond. If they toldyou something as a member of theBar, you could write it down astrue and factual. Their conductwas always more than ethical; itwas professional under JusticeClark’s definition.

When we were young attorneys,we were not lacking in enthusiasm,but sometimes we were lacking invision. Frequently our vision is stillclouded as we find ourselves con-sumed only with the outcome of thecase we are working on. Now,50,000 cases later, it is very clear tome that there will always be anothercase. When we are young, we wantour peers to appreciate our abilitiesand to recognize us for our victories.There is nothing wrong with tryingto win every case and giving greateffort with each challenge. Beingcompetitive is a positive trait that isimportant in every trial attorney.However, as we get older, we beginto realize it is not the result of a case

that is everlastingly important, butrather it is the means by which ourgoals are achieved that creates theimage by which we are judged andeven remembered.

It is important that we retain thecivility that is required for our pro-fession to maintain its standards. AsJustice Benham said, “Profession-alism’s main building block is civili-ty and it sets the truly accomplishedlawyer apart from the ordinarylawyer.” And as Justice Benhamwarns, “If we lose our civility, ourjustice system will be out of control.”How can we reasonably expect thepublic to respect our justice systemand us when we show little, if any,respect toward each other?

We seem to have forgotten theoath that we took to become attor-neys. As we stood side by sidewithout a specialty, we were onlyyoung bright-eyed individualswho were anxious to embark inthis great profession not knowingwhere the winds of fate would takeus. Now we entrench ourselvesamong our immediate peers in ourchosen specialties, and cast thosewho represent other legal interestsoutside of our own as the enemy.

Prosecutors love to point tomembers of the defense bar asunprofessional. The defense barjust as eagerly makes the sameaccusation toward the prosecutors.Civil attorneys seem to enjoy point-ing the finger of unethical conductand unprofessionalism toward boththe defense counsels and prosecu-tors, while viewing themselves assomehow above the others. Toomany of us spend our time explain-ing to ourselves why the ends justi-fy the means and searching forloopholes in the rules of ethics tosupport the reasons for the conductthat others perceive as unprofes-sional or perhaps even unethical.


It is important that we retain the civility that

is required for our profession to maintain

its standards.

And meanwhile, our professionsuffers. The oath that each of ustook has conveniently beenassigned to the files of the unimpor-tant and insignificant. Was our oathjust a formality? Does our oathhave implied exceptions that can beinvoked whenever we feel thenecessity to do so in order for us toachieve justice, which is measuredby the results that we desire?

Our oath of admission to the Baris remarkably silent on winningand losing. The oath,our oath, only address-es our conduct and themanner in which wepractice. We havesworn “I will truly andhonestly, justly anduprightly conductmyself as a member ofthis learned professionand in accordance withthe Georgia Rules ofProfessional Conduct,as an attorney andcounselor and that I will supportand defend the Constitution of theUnited States and the Constitutionof the State of Georgia.” TheAtlanta Bar Association has a sepa-rate oath by which members havepledged to conduct themselves in amanner that will reflect honorupon the legal profession; that theywill treat all participants in thelegal process with civility and willconduct themselves honestly, cour-teously and fairly. A number ofyears have passed for many of ussince we raised our hands to ourrespective God and swore our alle-giance to the standards of our pro-fession. Perhaps it is an oath thatwe should renew each year. Youwould think that a renewal of ouroath would certainly be as impor-tant as a renewal of our annual Bardues. Unfortunately, the emphasis

is only to insure that we pay ourdues in a timely manner to retainour membership in our professionfor yet another year.

Recently in an office meeting, Ihanded out to each of my assistantsthe canon of ethics that apply toprosecutors as a reminder of ourduties. I am fortunate that thosewho work with me feel passionate-ly about our duties as prosecutors.But it never hurts to review thosestandards of expected conduct. The

special duty of a prosecutor is morethan simply trying to obtain theconviction; it is to seek justice aswell. Because of the power that iswithin our office, we cannot just beadvocates, but we have to insurethat our decisions are fair to all,including the defendant. In oursystem of justice, the accused is tobe given the benefit of all reason-able doubt, and we must refrainfrom prosecuting any case in whichwe feel there is a lack of merit.Before my fellow prosecutors lineup to debate or to distinguish thoseconcepts, let me first remind themthat those are not my words, butrather the words of the canon ofethics as outlined in EC 7-13, EC 7-14, and DR 7-104.

Prosecutors cannot allow them-selves to be controlled by lawenforcement officers who do not

understand our duties in makingdecisions. We must have thecourage and strength to stand talland make the tough decisions,even if that decision is unpopularwith law enforcement officers oreven the victim on occasions. Andlikewise we cannot cave in to thedefense attorney who challengesour position and threatens to makeour job tougher. The question forsomeone considering enteringprosecution is, “Do you have the

strength to do whatyou think is right?” Ithas been said thatwhat is right is notalways popular andwhat is popular is notalways right. It takes aspecial person tobecome a prosecutor.It is not always easy,not always popular,but it is indeedrewarding if you vig-orously perform your

duties in a professional and ethicalmanner.

I am proud of being a prosecu-tor over the last 30 years, but I ammore proud of the fact that I aman attorney. We are members of agreat profession. For many of us,we are living the dreams of ouryouth. However, we have aresponsibility to the professionthat we have joined. If weremember our oaths and ourduty, our profession will contin-ue to be the dreams of the youthof today and tomorrow, and wecan continue taking pride inbeing members of the greatestprofession known to man — thehonorable profession of law.

Dennis Sanders is a district attor-ney in the Toombs Judicial Circuit.

February 2004 63

If we remember our oaths and our

duty, our profession will continue to

be the dreams of the youth of today

and tomorrow, and we can continue

taking pride in being members of the

greatest profession known to man —

the honorable profession of law.

The Lawyers Foundation Inc. of Georgia sponsors activities to promote charitable, scien-tific and educational purposes for the public, law students and lawyers. Memorial con-tributions may be sent to the Lawyers Foundation of Georgia Inc., 104 Marietta St. NW,

Suite 630, Atlanta, GA 30303, stating in whose memory they are made. The Foundation willnotify the family of the deceased of the gift and the name of the donor. Contributions are taxdeductible.

Ronald F. AdamsBrunswick, Ga.Admitted 1941Died September 2003

William R. AlfordAthens, Ga.Admitted 1976Died May 2003

Herbert L. BuffingtonCanton, Ga.Admitted 1942Died December 2003

Jack N. GunterCornelia, Ga.Admitted 1960Died November 2003

Damien S. TurnerAtlanta, Ga.Admitted 1997Died November 2003

Richard D. HallLilburn, Ga.Admitted 1981Died December 2003

Stephen D. HiseDecatur, Ga.Admitted 1950Died November 2003

John Michael JohnsonWest De Moines, Ia.Admitted 1975Died August 2003

C. Stanley LoweryAugusta, Ga.Admitted 1980Died October 2003

James H. McClureAtlanta, Ga.Admitted 1941Died December 2003

L. Ray PattersonAthens, Ga.Admitted 1956Died November 2003

Mark J. SangerAtlanta, Ga.Admitted 1986Died November 2003

J. Clinton Smith Buford, Ga.Admitted 1978Died December 2003

L. Ray Patterson,74, of Athens,Ga., died Nov. 5.Since 1986, he

had been the Pope F. BrockProfessor of ProfessionalResponsibility at theUniversity of Georgia Schoolof Law. Over a 45-year career,he taught at the law schools ofMercer, Vanderbilt andEmory, where he served asdean for seven years.Patterson earned his under-graduate and law degrees atMercer, as well as a master’sdegree in English fromNorthwestern and the equiva-lent of a Ph.D. in law fromHarvard. He is survived byhis wife, the former LauraAdelyn Davis; two daughters,Dorvee and Adelyn PattersonHilado; two sons-in-law; fourgrandchildren; two sisters; abrother; and numerous nieces,nephews and cousins.


InM

emor

iam

Memorial GiftsThe Lawyers Foundation of Georgia furnishes the Georgia Bar Journal withmemorials to honor deceased members of the State Bar of Georgia.

A meaningful way to honor a loved one or to commemorate a special occa-sion is through a tribute and memorial gift to the Lawyers Foundation of

Georgia. An expression of sympathy or a celebration of a family event that takes the form of a gift tothe Lawyers Foundation of Georgia provides a lasting remembrance. Once a gift is received, a writtenacknowledgement is sent to the contributor, the surviving spouse or other family member, and theGeorgia Bar Journal.

InformationFor information regarding the placement of a memorial, please contact the Lawyers Foundation ofGeorgia at (404) 659-6867 or 104 Marietta St. NW, Suite 630, Atlanta, GA 30303.

February 20043

NATIONAL BUSINESS INSTITUTEThe Probate Process From Start to Finish in GeorgiaAtlanta, Ga.6.7 CLE with 0.5 Ethics

5

ICLEMeet the JudgesAtlanta, Ga.3 CLE

6

ICLEReal Estate Practice and ProcedureAtlanta, Ga.6 CLE

ICLE Emerging Issues in Debt CollectionAtlanta, Ga.6 CLE

ICLEGeorgia Foundations and ObjectionsAtlanta, Ga.6 CLE

10

NATIONAL BUSINESS INSTITUTEResidential and Commercial Evictions in GeorgiaAtlanta, Ga.6 CLE with 0.5 Ethics

LORMAN BUSINESS CENTERRevised Article 9 of the Uniform Commercial CodeAtlanta, Ga.6.7 CLE

12

ICLEAbusive LitigationAtlanta, Ga.6 CLE

ICLEZoningSavannah, Ga.6 CLE

AMERICAN ARBITRATION ASSOCIATION A.C.E. Award WritingAtlanta, Ga.2.5 CLE with 1 Ethics

13-14

ICLECaribbean SeminarMexico8 CLE

ICLEEstate Planning InstituteAthens, Ga.12 CLE

13

ICLEGeorgia Automobile LawSavannah, Ga.6 CLE

ICLEPlaintiff’s Medical MalpracticeAtlanta, Ga.6 CLE

16

ICLEBridge the GapAtlanta, Ga.

18

LORMAN BUSINESS CENTER, INC.BankruptcyAtlanta, Ga.6 CLE

February 2004 65

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 total CLE hours.For a breakdown, call (800) 422-0893.


19

ICLEElder LawAtlanta, Ga.6 CLE

ICLETaking Control of the Internet6 CLE

20

ICLELicense Revocation and SuspensionAtlanta, Ga.6 CLE

ICLEGeorgia Auto InsuranceAtlanta, Ga.6 CLE

ICLESuccessful Trial PracticeAtlanta, Ga.6 CLE

ICLEADR in Workers’ Comp Cases Before the BoardAtlanta, Ga.6 CLE

LORMAN BUSINESS CENTER, INC.AIA ContractsAtlanta, Ga.6.7 CLE

23

ICLEBridge the GapAtlanta, Ga.

25

ICLEAdvanced Criminal PracticeKennesaw, Ga.6 CLE

LORMAN BUSINESS CENTER, INC.Use of ForceSavannah, Ga.6 CLE with 0.8 Ethics

26

ICLEExecutive Branch Adjudication in GeorgiaAtlanta, Ga.6 CLE

27

ICLEFundamentals of Health Care LawAtlanta, Ga.6 CLE

ICLEDealing with the IRSAtlanta, Ga.6 CLE

ICLE Technology Show and TellAtlanta, Ga.6 CLE

LORMAN BUSINESS CENTER, INC.Introduction to Workers’ CompensationAlbany, Ga.6 CLE

March 20042

LORMAN BUSINESS CENTER, INC.ADA, FMLA and Workers’ CompensationAlbany, Ga. 6 CLE

4

ICLEHot Topics for the Estate Planning AttorneyAtlanta, Ga.3 CLE

ICLE Current Issues in ArbitrationAtlanta, Ga.6 CLE

LORMAN BUSINESS CENTER, INC.Community Association LawAtlanta, Ga. 6.7 CLE with 1.0 ethics

5

ICLEInternet Legal ResearchAtlanta, Ga.6 CLE

ICLESoft Tissue Injury CasesAtlanta, Ga.6 CLE

CLE

Cal

enda

r

ICLEGeorgia Appellate PracticeAtlanta, Ga.6 CLE

ICLEEmployment LawAtlanta, Ga.6 CLE

10

ICLEGovernment Attorneys SeminarAtlanta, Ga.6 CLE

LORMAN BUSINESS CENTER, INC.Finance: The BasicsAtlanta, Ga. 6.7 CLE

11

ICLE Women in the ProfessionAtlanta, Ga.6 CLE

ICLEGeorgia Appellate PracticeAtlanta, Ga.6 CLE

ICLEProduct LiabilityAtlanta, Ga.6 CLE

12

ICLETrial Evidence with Professor Paul MilichAtlanta, Ga.6 CLE

16

LORMAN BUSINESS CENTER, INC.Section 125 Cafeteria PlansAugust, Ga.6.7 CLE

17

NATIONAL BUSINESS INSTITUTEAn Advanced Look at Georgia Real Estate LawAtlanta, Ga.6 CLE with 0.5 Ethics

18

ICLEPost Judgment CollectionAtlanta, Ga.6 CLE

ICLEProving DamagesAtlanta, Ga.6 CLE

19

ICLE Business Research on the InternetAtlanta, Ga.3 CLE

ICLE Internet Marketing and Online EthicsAtlanta, Ga.3 CLE

ICLENuts & Bolts of Local Government LawAtlanta, Ga.6 CLE

ICLEProfessionalism and Ethics UpdateAtlanta, Ga.2 CLE

24

LORMAN BUSINESS CENTERForeclosure and RepossessionMacon, Ga.6 CLE

25-26

ICLESelected Video ReplaysAtlanta, Ga.

25

ICLE Long Term DisabilityAtlanta, Ga.6 CLE

ICLECutting Edge in Courtroom PersuasionAtlanta, Ga.6 CLE

February 2004 67

CLEC

alendar


ICLE LLCs and Other Flow-Through EntitiesAtlanta, Ga.6 CLE

NATIONAL BUSINESS INSTITUTESkip Tracing Tools in GeorgiaAtlanta, Ga.6 CLE

LORMAN BUSINESS CENTERPractical Issues in Real Estate Title and TitleInsuranceAtlanta, Ga.6 CLE with 0.5 Ethics

26

ICLEWorkers’ Comp for the GPAtlanta, Ga.6 CLE

ICLEBasic Securities LawAtlanta, Ga.6 CLE

NATIONAL BUSINESS INSTITUTEPractical Guide to Zoning and Land Use Law in Georgia

29

NATIONAL BUSINESS INSTITUTEGeorgia DUI Cases: Analyzing Cases for TrialAtlanta, Ga.6 CLE

31

ICLE McElhaney on Litigation (video replay)Atlanta, Ga.6 CLE

April 20041-3

ICLEGeneral Practice InstituteSt. Simons, Ga.12 CLE

2

LORMAN BUSINESS CENTER, INC.Understanding Transportation & Logistics LawAtlanta, Ga.6 CLE

7

NATIONAL BUSINESS INSTITUTEUsing a Real Estate Appraiser in GeorgiaAtlanta, Ga.6 CLE with 0.5 Ethics

8

ICLEAdvanced Elder LawAtlanta, Ga.6 CLE

15

ICLEFederal Appellate PracticeAtlanta, Ga.

16

ICLE ForeclosuresAtlanta, Ga.6 CLE

ICLETrials of the CenturyAtlanta, Ga.6 CLE

23

ICLEInternational Law Section SeminarAtlanta, Ga.6 CLE

ICLEYLD Successful Trial PracticeAtlanta, Ga.2 CLE

27

NATIONAL BUSINESS INSTITUTELimited Liability Companies in GeorgiaMultiple Sites6.7 CLE with 0.5 Ethics

29

ICLESelected Video ReplaysAtlanta, Ga.

NATIONAL BUSINESS INSTITUTEFundamentals of Bankruptcy Law andProcedure in GeorgiaMultiple Sites6 CLE with 0.5 Ethics

CLE

Cal

enda

r

ICLEPowerpoint in the CourtroomAtlanta, Ga.6 CLE

30

ICLEWriting to PersuadeAtlanta, Ga.6 CLE

May 20046-8

ICLEReal Property Law InstituteAmelia Island, Fla.12 CLE

13

ICLEWinning at MediationAtlanta, Ga.6 CLE

14

ICLE Defense of Drinking DriversAtlanta, Ga.6 CLE

ICLENuts and Bolts of Immigration LawAtlanta, Ga.6 CLE

20

ICLEConstruction, Materialmen and Mechanics’LiensAtlanta, Ga.6 CLE

21

ICLE Jury TrialAtlanta, Ga.6 CLE

27-29

ICLEFamily Law InstituteDestin, Fla.12 CLE

June 200424-27

ICLEGeorgia Trial Skills ClinicUGA Law School, Athens24 CLE

25-26

ICLE Southeastern Admiralty Law Institute (SEALI) Ponte Vedra Beach, Fla.12 CLE

February 2004 69

CLEC

alendar

Earn up to 6 CLE credits for authoring legal articles and having them published.

Submit articles to:Rebecca A. HoeltingGeorgia 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.


Not

ices

IN THE SUPREME COURT STATE OF GEORGIA

IN RE: STATE BAR OF GEORGIA Rules and Regulations for its Organization andGovernment

MOTION TO AMEND 2004-1

MOTION TO AMEND THE RULES AND REGU-LATIONS OF THE STATE BAR OF GEORGIA

COMES NOW, the State Bar of Georgia, pursuantto the authorization and direction of its Board ofGovernors in a regular meeting held on November8, 2003, and upon the concurrence of its ExecutiveCommittee, presents to this Court its Motion toAmend the Rules and Regulations of the State Barof Georgia as set forth in an Order of this Courtdated December 6, 1963 (219 Ga. 873), as amendedby subsequent Orders, 2001-2002 State Bar ofGeorgia Directory and Handbook, pp. 1-H, et seq., andrespectfully moves that the Rules and Regulationsof the State Bar of Georgia be amended in the fol-lowing respects:

I.Proposed Amendments to the Georgia Rules of

Professional Conduct relating toMultijurisdictional Practice

It is proposed that certain provisions of theGeorgia Rules of Professional Conduct be amendedas shown below to expressly permit multijurisdic-tional practice in certain specific circumstances.

a.) Proposed Amendments to the Terminology Section of the Georgia Rules of Professional Conduct

The State Bar of Georgia proposes amendingthe “Terminology” section of the Georgia Rules ofProfessional Conduct by inserting the phrases initalicized and underlined typeface as follows:

TERMINOLOGY

“Belief” or “believes” denotes that the personinvolved actually thought the fact in question to betrue. A person’s belief may be inferred from circum-stances.

“Consult” or “consultation” denotes communi-cation of information reasonably sufficient to per-mit the client to appreciate the significance of thematter in question.

“Domestic Lawyer” denotes a person authorized topractice law by the duly constituted and authorized gov-ernmental body of any State or Territory of the UnitedStates or the District of Columbia but not authorized bythe Supreme Court of Georgia or its rules to practice lawin the State of Georgia.

“Firm” or “law firm” denotes a lawyer or lawyersin a private firm, lawyers employed in the legaldepartment of a corporation or other organizationand lawyers employed in a legal services organiza-tion. See Comment, Rule 1.10: Imputed Disqualification.

“Foreign Lawyer” denotes a person authorized topractice law by the duly constituted and authorized gov-ernmental body of any foreign nation but not authorizedby the Supreme Court of Georgia or its Rules to practicelaw in the State of Georgia.

“Fraud” or “fraudulent” denotes conduct hav-ing a purpose to deceive and not merely negligentmisrepresentation or failure to apprise another ofrelevant information.

“Knowingly,” “known,” or “knows” denotesactual knowledge of the fact in question. A person’sknowledge may be inferred from circumstances.

“Lawyer” denotes a person authorized by theSupreme Court of Georgia or its Rules to practice law inthe State of Georgia including persons admitted to prac-tice in this state pro hac vice.

No earlier than thirty days after the publication of this Notice, the State Bar of Georgia will file a Motionto Amend the Rules and Regulations for the Organization and Government of the State Bar of Georgia pur-suant to Part V, Chapter 1 of said Rules, 2003-2004 State Bar of Georgia Directory and Handbook, p. H-6 to H-7(hereinafter referred to as “Handbook”).

I hereby certify that the following is the verbatim text of the proposed amendments as approved by theBoard of Governors of the State Bar of Georgia. Any member of the State Bar of Georgia who desires to objectto the proposed amendments to the Rules is reminded that he or she may only do so in the manner provid-ed by Rule 5-102, Handbook, p. H-6.

This Statement, and the following verbatim text, are intended to comply with the notice requirementsof Rule 5-101, Handbook, p. H-6.

Cliff BrashierExecutive DirectorState Bar of Georgia

NOTICE OF MOTION TO AMENDTHE RULES AND REGULATIONS OFTHE STATE BAR OF GEORGIA

“Nonlawyer” denotes a person not authorized to practicelaw by either the:

(a) Supreme Court of Georgia or its Rules(including pro hac vice admission), or

(b) duly constituted and authorized governmen-tal body of any other State or Territory of the UnitedStates, or the District of Columbia or

(c) duly constituted and authorized governmen-tal body of any foreign nation.

“Partner” denotes a member of a partnership and a share-holder in a law firm organized as a professional corporation.

“Reasonable” or “reasonably” when used in relation toconduct by a lawyer denotes the conduct of a reasonably pru-dent and competent lawyer.

“Reasonable belief” or “reasonably believes” when usedin reference to a lawyer denotes that the lawyer believes thematter in question and that the circumstances are such thatthe belief is reasonable.

“Reasonably should know” when used in reference to alawyer denotes that a lawyer of reasonable prudence andcompetence would ascertain the matter in question.

“Substantial” when used in reference to degree or extentdenotes a material matter of clear and weighty importance, ormay refer to things of more than trifling value.

“Tribunal” denotes a court, an arbitrator in an arbitration pro-ceeding or a legislative body, administrative agency or other bodyacting in an adjudicative capacity. A legislative body, administra-tive agency or other body acts in an adjudicative capacity when aneutral official, after the presentation of evidence or legal argumentby a party or parties, will render a legal judgment directly affectinga party’s interests in a particular matter.

Should the proposed amendment be adopted, the“Terminology” section of the Georgia Rules of ProfessionalConduct would read as follows:

TERMINOLOGY

“Belief” or “believes” denotes that the person involvedactually thought the fact in question to be true. A person’sbelief may be inferred from circumstances.

“Consult” or “consultation” denotes communication ofinformation reasonably sufficient to permit the client toappreciate the significance of the matter in question.

“Domestic Lawyer” denotes a person authorized to prac-tice law by the duly constituted and authorized governmen-tal body of any State or Territory of the United States or theDistrict of Columbia but not authorized by the SupremeCourt of Georgia or its rules to practice law in the State ofGeorgia.

“Firm” or “law firm” denotes a lawyer or lawyers in a pri-vate firm, lawyers employed in the legal department of a cor-poration or other organization and lawyers employed in a

legal services organization. See Comment, Rule 1.10: ImputedDisqualification.

“Foreign Lawyer” denotes a person authorized to practicelaw by the duly constituted and authorized governmentalbody of any foreign nation but not authorized by the SupremeCourt of Georgia or its Rules to practice law in the State ofGeorgia.

“Fraud” or “fraudulent” denotes conduct having a pur-pose to deceive and not merely negligent misrepresentationor failure to apprise another of relevant information.

“Knowingly,” “known,” or “knows” denotes actualknowledge of the fact in question. A person’s knowledgemay be inferred from circumstances.

“Lawyer,” denotes a person authorized by the SupremeCourt of Georgia or its Rules to practice law in the State ofGeorgia including persons admitted to practice in this statepro hac vice.

“Nonlawyer” denotes a person not authorized to practicelaw by either the:

(a) Supreme Court of Georgia or its Rules (includingpro hac vice admission), or(b) duly constituted and authorized governmentalbody of any other State or Territory of the UnitedStates, or the District of Columbia, or(c) duly constituted and authorized governmentalbody of any foreign nation.

“Partner” denotes a member of a partnership and a share-holder in a law firm organized as a professional corporation.

“Reasonable” or “reasonably” when used in relation toconduct by a lawyer denotes the conduct of a reasonably pru-dent and competent lawyer.

“Reasonable belief” or “reasonably believes” when usedin reference to a lawyer denotes that the lawyer believes thematter in question and that the circumstances are such thatthe belief is reasonable.

“Reasonably should know” when used in reference to alawyer denotes that a lawyer of reasonable prudence andcompetence would ascertain the matter in question.

“Substantial” when used in reference to degree or extentdenotes a material matter of clear and weighty importance, ormay refer to things of more than trifling value.

“Tribunal” denotes a court, an arbitrator in an arbitrationproceeding or a legislative body, administrative agency orother body acting in an adjudicative capacity. A legislativebody, administrative agency or other body acts in an adju-dicative capacity when a neutral official, after the presenta-tion of evidence or legal argument by a party or parties, willrender a legal judgment directly affecting a party’s interests ina particular matter.

February 2004 71

b.) Proposed Amendments to Rule 5.5 of the Georgia Rules of Professional Conduct

The State Bar proposes that Rule 5.5 of the Georgia Rulesof Professional Conduct be amended as shown below bydeleting the stricken portions of the Rule, and inserting thephrases shown below in italicized and underlined typeface.

RULE 5.5: UNAUTHORIZED PRACTICE OF LAW;MULTIJURISDICTIONAL PRACTICE OF LAW

(a) A lawyer shall not: (a) practice law in a jurisdic-tion where doing so violates in violation of the regula-tion of the legal profession in that jurisdiction;, or (b)assist a person who is not a member of the bar anotherin the performance of activity that constitutes the unau-thorized practice of law doing so.

(b) A Domestic Lawyer shall not:(1) except as authorized by these Rules or other

law, establish an office or other systematic and con-tinuous presence in this jurisdiction for the practiceof law; or

(2) hold out to the public or otherwise representthat the Domestic Lawyer is admitted to practicelaw in this jurisdiction. (c) A Domestic Lawyer, who is not disbarred or sus-

pended from practice in any jurisdiction, may providelegal services on a temporary basis in this jurisdictionthat:

(1) are undertaken in association with a lawyerwho is admitted to practice in this jurisdiction andwho actively participates in the matter;

(2) are in or reasonably related to a pending orpotential proceeding before a tribunal in this oranother jurisdiction, if the Domestic Lawyer, or aperson the Domestic Lawyer is assisting, is author-ized by law or order to appear in such proceeding orreasonably expects to be so authorized;

(3) are in or reasonably related to a pending orpotential arbitration, mediation, or other alterna-tive dispute resolution proceeding in this or anotherjurisdiction, if the services arise out of or are rea-sonably related to the Domestic Lawyer’s practicein a jurisdiction in which the Domestic Lawyer isadmitted to practice and are not services for whichthe forum requires pro hac vice admission; or

(4) are not within paragraphs (c)(2) or (c)(3) andarise out of or are reasonably related to theDomestic Lawyer’s practice in a jurisdiction inwhich the Domestic Lawyer is admitted to practice.(d) A Domestic Lawyer, who is not disbarred or sus-

pended from practice in any jurisdiction, may providelegal services in this jurisdiction that:

(1) are provided to the Domestic Lawyer’semployer or its organizational affiliates and are notservices for which the forum requires pro hac viceadmission; or

(2) are services that the Domestic Lawyer isauthorized to provide by federal law or other law ofthis jurisdiction. (e) A Foreign Lawyer shall not, except as authorized

by this Rule or other law, establish an office or other sys-

tematic and continuous presence in this jurisdiction forthe practice of law, or hold out to the public or otherwiserepresent that the lawyer is admitted to practice law inthis jurisdiction. Such a Foreign Lawyer does not engagein the unauthorized practice of law in this jurisdictionwhen on a temporary basis the Foreign Lawyer performsservices in this jurisdiction that:


(2) are in or reasonably related to a pending orpotential proceeding before a tribunal held or to beheld in a jurisdiction outside the United States if theForeign Lawyer, or a person the Foreign Lawyer isassisting, is authorized by law or by order of the tri-bunal to appear in such proceeding or reasonablyexpects to be so authorized;

(3) are in or reasonably related to a pending orpotential arbitration, mediation, or other alterna-tive dispute resolution proceedings held or to be heldin this or another jurisdiction, if the services ariseout of or are reasonably related to the ForeignLawyer’s practice in a jurisdiction in which theForeign Lawyer is admitted to practice;

(4) are not within paragraphs (2) or (3) and(i) are performed for a client who resides or

has an office in a jurisdiction in which theForeign Lawyer is authorized to practice to theextent of that authorization; or

(ii) arise out of or are reasonably related toa matter that has a substantial connection to ajurisdiction in which the lawyer is authorizedto practice to the extent of that authorization;or(5) are governed primarily by international law

or the law of a non-United States jurisdiction.(f) For purposes of this grant of authority, the

Foreign Lawyer must be a member in good standing of arecognized legal profession in a foreign jurisdiction, themembers of which are admitted to practice as lawyers orcounselors at law or the equivalent and subject to effec-tive regulation and discipline by a duly constituted pro-fessional body or a public authority.

Comment

[1] A lawyer may practice law only in a jurisdiction in which thelawyer is authorized to practice. A lawyer may be admitted to prac-tice law in a jurisdiction on a regular basis or may be authorized bycourt rule or order or by law to practice for a limited purpose or ona restricted basis. Paragraph (a) applies to unauthorized practice oflaw by a lawyer, whether through the lawyer’s direct action or bythe lawyer assisting another person.

[1] [2] The definition of the practice of law is establishedby law and varies from one jurisdiction to another. Whateverthe definition, limiting the practice of law to members of thebar protects the public against rendition of legal services byunqualified persons. Paragraph (b) This Rule does not prohib-it a lawyer from employing the services of paraprofessionalsand delegating functions to them, so long as the lawyer super-vises the delegated work and retains responsibility for theirwork. See Rule 5.3; Responsibilities Regarding NonlawyerAssistants.


[3] Likewise, it does not prohibit lawyers from providingA lawyer may provide professional advice and instruction tononlawyers whose employment requires knowledge of thelaw; for example, claims adjusters, employees of financial orcommercial institutions, social workers, accountants and per-sons employed in government agencies. Lawyers also mayassist independent nonlawyers, such as paraprofessionals, who areauthorized by the law of a jurisdiction to provide particular law-related services. In addition, a lawyer may counsel nonlawyerswho wish to proceed pro se.

[4] Other than as authorized by law or this Rule, a DomesticLawyer violates paragraph (b) and a Foreign Lawyer violates para-graph (e) if the Domestic or Foreign Lawyer establishes an office orother systematic and continuous presence in this jurisdiction for thepractice of law. Presence may be systematic and continuous even ifthe Domestic or Foreign Lawyer is not physically present here.Such Domestic or Foreign Lawyer must not hold out to the publicor otherwise represent that the Domestic or Foreign Lawyer isadmitted to practice law in this jurisdiction. See also Rules 7.1(a)and 7.5(b).

[5] There are occasions in which a Domestic or Foreign Lawyer,who is not disbarred or suspended from practice in any jurisdiction,may provide legal services on a temporary basis in this jurisdictionunder circumstances that do not create an unreasonable risk to theinterests of their clients, the public or the courts. Paragraph (c)identifies four such circumstances for the Domestic Lawyer.Paragraph (e) identifies five such circumstances for the ForeignLawyer. The fact that conduct is not so identified does not implythat the conduct is or is not authorized. With the exception of para-graphs (d)(1) and (d)(2), this Rule does not authorize a DomesticLawyer to establish an office or other systematic and continuouspresence in this jurisdiction without being admitted to practice gen-erally here.

[6] There is no single test to determine whether a Foreign orDomestic Lawyer’s services are provided on a “temporary basis” inthis jurisdiction, and may therefore be permissible under paragraph(c) or paragraph (e). Services may be “temporary” even though theForeign or Domestic Lawyer provides services in this jurisdictionon a recurring basis, or for an extended period of time, as when theDomestic Lawyer is representing a client in a single lengthy nego-tiation or litigation.

[7] Paragraphs (c) and (d) apply to Domestic Lawyers.Paragraphs (e) and (f) apply to Foreign Lawyers. Paragraphs (c)and (e) contemplate that the Domestic or Foreign Lawyer is author-ized to practice in the jurisdiction in which the Domestic or ForeignLawyer is admitted and excludes a Domestic or Foreign Lawyer whowhile technically admitted is not authorized to practice, because, forexample, the Domestic or Foreign Lawyer is on inactive status.

[8] Paragraph (c)(1) recognizes that the interests of clients andthe public are protected if a Domestic Lawyer associates with alawyer licensed to practice in this jurisdiction. Paragraph (e)(1) rec-ognizes that the interests of clients and the public are protected if aForeign Lawyer associates with a lawyer licensed to practice in thisjurisdiction. For these paragraphs to apply, however, the lawyeradmitted to practice in this jurisdiction must actively participate inand share responsibility for the representation of the client.

[9] Domestic Lawyers not admitted to practice generally in ajurisdiction may be authorized by law or order of a tribunal or anadministrative agency to appear before the tribunal or agency. Thisauthority may be granted pursuant to formal rules governingadmission pro hac vice or pursuant to informal practice of the tri-bunal or agency. Under paragraph (c)(2), a Domestic Lawyer doesnot violate this Rule when the Domestic Lawyer appears before a tri-

bunal or agency pursuant to such authority. To the extent that acourt rule or other law of this jurisdiction requires a DomesticLawyer to obtain admission pro hac vice before appearing before atribunal or administrative agency, this Rule requires the DomesticLawyer to obtain that authority.

[10] Paragraph (c)(2) also provides that a Domestic Lawyer ren-dering services in this jurisdiction on a temporary basis does notviolate this Rule when the Domestic Lawyer engages in conduct inanticipation of a proceeding or hearing in a jurisdiction in which theDomestic Lawyer is authorized to practice law or in which theDomestic Lawyer reasonably expects to be admitted pro hac vice.Examples of such conduct include meetings with the client, inter-views of potential witnesses, and the review of documents.Similarly, a Domestic Lawyer may engage in conduct temporarilyin this jurisdiction in connection with pending litigation in anoth-er jurisdiction in which the Domestic Lawyer is or reasonablyexpects to be authorized to appear, including taking depositions inthis jurisdiction.

[11] When a Domestic Lawyer has been or reasonably expects tobe admitted to appear before a court or administrative agency, para-graph (c)(2) also permits conduct by lawyers who are associatedwith that lawyer in the matter, but who do not expect to appearbefore the court or administrative agency. For example, subordinateDomestic Lawyers may conduct research, review documents, andattend meetings with witnesses in support of the Domestic Lawyerresponsible for the litigation.

[12] Paragraph (c)(3) permits a Domestic Lawyer, andParagraph (e)(3) permits a Foreign Lawyer, to perform services ona temporary basis in this jurisdiction if those services are in or rea-sonably related to a pending or potential arbitration, mediation, orother alternative dispute resolution proceeding in this or anotherjurisdiction, if the services arise out of or are reasonably related tothe Domestic or Foreign Lawyer’s practice in a jurisdiction in whichthe Domestic or Foreign Lawyer is admitted to practice. TheDomestic Lawyer, however, must obtain admission pro hac vice inthe case of a court-annexed arbitration or mediation or otherwise ifcourt rules or law so require.

[13] Paragraph (c)(4) permits a Domestic Lawyer to provide cer-tain legal services on a temporary basis in this jurisdiction that ariseout of or are reasonably related to the Domestic Lawyer’s practice ina jurisdiction in which the Domestic Lawyer is admitted but are notwithin paragraphs (c)(2) or (c)(3). These services include both legalservices and services that nonlawyers may perform but that are con-sidered the practice of law when performed by lawyers. Paragraph(e)(4)(i) permits a Foreign Lawyer to provide certain legal servicesin this jurisdiction on behalf of a client who resides or has an officein the jurisdiction in which the Foreign Lawyer is authorized topractice. Paragraph (e)(4)(ii) permits a Foreign Lawyer to providecertain legal services on a temporary basis in this jurisdiction thatarise out of or are reasonably related to a matter that has a substan-tial connection to the jurisdiction in which the Foreign Lawyer isauthorized to practice. These services include both legal servicesand services that nonlawyers may perform but that are consideredthe practice of law when performed by lawyers.

[14] Paragraphs (c)(3) and (c)(4) require that the services ariseout of or be reasonably related to the Domestic Lawyer’s practice ina jurisdiction in which the Domestic Lawyer is admitted.Paragraphs (e)(3) and (e)(4)(ii) require that the services arise out ofor be reasonably related to the Foreign Lawyer’s practice in a juris-diction in which the Foreign Lawyer is admitted to practice. A vari-ety of factors evidence such a relationship. The Domestic or ForeignLawyer’s client may have been previously represented by theDomestic or Foreign Lawyer, or may be resident in or have sub-

February 2004 73

stantial contacts with the jurisdiction in which the Domestic orForeign Lawyer is admitted. The matter, although involving otherjurisdictions, may have a significant connection with that jurisdic-tion. In other cases, significant aspects of the Domestic or ForeignLawyer’s work might be conducted in that jurisdiction or a signifi-cant aspect of the matter may involve the law of that jurisdiction.The necessary relationship might arise when the client’s activities orthe legal issues involve multiple jurisdictions, such as when the offi-cers of a multinational corporation survey potential business sitesand seek the services of their Domestic or Foreign Lawyer in assess-ing the relative merits of each. In addition, the services may drawon the Domestic or Foreign Lawyer’s recognized expertise developedthrough the regular practice of law on behalf of clients in mattersinvolving a particular body of federal, nationally-uniform, foreign,or international law.

[15] Paragraph (d) identifies two circumstances in which aDomestic Lawyer, who is not disbarred or suspended from practicein any jurisdiction, may establish an office or other systematic andcontinuous presence in this jurisdiction for the practice of law aswell as provide legal services on a temporary basis. Except as pro-vided in paragraphs (d)(1) and (d)(2), a Domestic Lawyer whoestablishes an office or other systematic or continuous presence inthis jurisdiction must become admitted to practice law generally inthis jurisdiction.

[16] Paragraph (d)(1) applies to a Domestic Lawyer who isemployed by a client to provide legal services to the client or its orga-nizational affiliates, i.e., entities that control, are controlled by, orare under common control with the employer. This paragraph doesnot authorize the provision of personal legal services to the employ-er’s officers or employees. The paragraph applies to in-house corpo-rate lawyers, government lawyers and others who are employed torender legal services to the employer. The Domestic Lawyer’s abil-ity to represent the employer outside the jurisdiction in which theDomestic Lawyer is licensed generally serves the interests of theemployer and does not create an unreasonable risk to the client andothers because the employer is well situated to assess the DomesticLawyer’s qualifications and the quality of the Domestic Lawyer’swork.

[17] If an employed Domestic Lawyer establishes an office orother systematic presence in this jurisdiction for the purpose of ren-dering legal services to the employer, the Domestic Lawyer may besubject to registration or other requirements, including assessmentsfor client protection funds and mandatory continuing legal educa-tion.

[18] Paragraph (d)(2) recognizes that a Domestic Lawyer mayprovide legal services in a jurisdiction in which the DomesticLawyer is not licensed when authorized to do so by federal or otherlaw, which includes statute, court rule, executive regulation or judi-cial precedent. Paragraph (e)(5) recognizes that a Foreign Lawyermay provide legal services when the services provided are governedby international law or the law of a foreign jurisdiction.

[19] A Domestic or Foreign Lawyer who practices law in thisjurisdiction pursuant to paragraphs (c), (d) or (e) or otherwise issubject to the disciplinary authority of this jurisdiction. See Rule8.5(a).

[20] In some circumstances, a Domestic Lawyer who practiceslaw in this jurisdiction pursuant to paragraphs (c) or (d) may haveto inform the client that the Domestic Lawyer is not licensed to prac-tice law in this jurisdiction. For example, that may be required whenthe representation occurs primarily in this jurisdiction and requiresknowledge of the law of this jurisdiction. See Rule 1.4.

[21] Paragraphs (c), (d) and (e) do not authorize communica-tions advertising legal services to prospective clients in this

jurisdiction by Domestic or Foreign Lawyers who are admitted topractice in other jurisdictions. Whether and how Domestic orForeign Lawyers may communicate the availability of their serv-ices to prospective clients in this jurisdiction is governed byRules 7.1 to 7.5.

If adopted, the amended Rule 5.5 of the Georgia Rules ofProfessional Conduct would read as follows:

RULE 5.5: UNAUTHORIZED PRACTICE OF LAW;MULTIJURISDICTIONAL PRACTICE OF LAW

(a) A lawyer shall not practice law in a jurisdictionin violation of the regulation of the legal profession inthat jurisdiction, or assist another in doing so.

(b) A Domestic Lawyer shall not:(1) except as authorized by these Rules or other

law, establish an office or other systematic andcontinuous presence in this jurisdiction for thepractice of law; or

(2) hold out to the public or otherwise repre-sent that the Domestic Lawyer is admitted to prac-tice law in this jurisdiction. (c) A Domestic Lawyer, who is not disbarred or

suspended from practice in any jurisdiction, may pro-vide legal services on a temporary basis in this juris-diction that:


(2) are in or reasonably related to a pending orpotential proceeding before a tribunal in this oranother jurisdiction, if the Domestic Lawyer, or aperson the Domestic Lawyer is assisting, is author-ized by law or order to appear in such proceedingor reasonably expects to be so authorized;

(3) are in or reasonably related to a pending orpotential arbitration, mediation, or other alterna-tive dispute resolution proceeding in this or anoth-er jurisdiction, if the services arise out of or are rea-sonably related to the Domestic Lawyer’s practicein a jurisdiction in which the Domestic Lawyer isadmitted to practice and are not services for whichthe forum requires pro hac vice admission; or

(4) are not within paragraphs (c)(2) or (c)(3) andarise out of or are reasonably related to theDomestic Lawyer’s practice in a jurisdiction inwhich the Domestic Lawyer is admitted to practice.(d) A Domestic Lawyer, who is not disbarred or

suspended from practice in any jurisdiction, may pro-vide legal services in this jurisdiction that:

(1) are provided to the Domestic Lawyer’semployer or its organizational affiliates and are notservices for which the forum requires pro hac viceadmission; or

(2) are services that the Domestic Lawyer isauthorized to provide by federal law or other lawof this jurisdiction. (e) A Foreign Lawyer shall not, except as author-

ized by this Rule or other law, establish an office orother systematic and continuous presence in this juris-diction for the practice of law, or hold out to the publicor otherwise represent that the lawyer is admitted to


practice law in this jurisdiction. Such a Foreign Lawyerdoes not engage in the unauthorized practice of law inthis jurisdiction when on a temporary basis the ForeignLawyer performs services in this jurisdiction that:


(2) are in or reasonably related to a pending orpotential proceeding before a tribunal held or to beheld in a jurisdiction outside the United States ifthe Foreign Lawyer, or a person the Foreign Lawyeris assisting, is authorized by law or by order of thetribunal to appear in such proceeding or reason-ably expects to be so authorized;

(3) are in or reasonably related to a pending orpotential arbitration, mediation, or other alterna-tive dispute resolution proceedings held or to beheld in this or another jurisdiction, if the servicesarise out of or are reasonably related to the ForeignLawyer’s practice in a jurisdiction in which theForeign Lawyer is admitted to practice;

(4) are not within paragraphs (2) or (3) and(i) are performed for a client who resides

or has an office in a jurisdiction in which theForeign Lawyer is authorized to practice to theextent of that authorization; or

(ii) arise out of or are reasonably related toa matter that has a substantial connection to ajurisdiction in which the lawyer is authorizedto practice to the extent of that authorization; or(5) are governed primarily by international

law or the law of a non-United States jurisdiction.(f) For purposes of this grant of authority, the

Foreign Lawyer must be a member in good standing ofa recognized legal profession in a foreign jurisdiction,the members of which are admitted to practice aslawyers or counselors at law or the equivalent and sub-ject to effective regulation and discipline by a duly con-stituted professional body or a public authority.

Comment

[1] A lawyer may practice law only in a jurisdiction inwhich the lawyer is authorized to practice. A lawyer may beadmitted to practice law in a jurisdiction on a regular basis ormay be authorized by court rule or order or by law to practicefor a limited purpose or on a restricted basis. Paragraph (a)applies to unauthorized practice of law by a lawyer, whetherthrough the lawyer’s direct action or by the lawyer assistinganother person.

[2] The definition of the practice of law is established bylaw and varies from one jurisdiction to another. Whatever thedefinition, limiting the practice of law to members of the barprotects the public against rendition of legal services byunqualified persons. This Rule does not prohibit a lawyerfrom employing the services of paraprofessionals and dele-gating functions to them, so long as the lawyer supervises thedelegated work and retains responsibility for their work. SeeRule 5.3; Responsibilities Regarding Nonlawyer Assistants.

[3] A lawyer may provide professional advice and instruc-tion to nonlawyers whose employment requires knowledgeof the law; for example, claims adjusters, employees of finan-cial or commercial institutions, social workers, accountants

and persons employed in government agencies. Lawyers alsomay assist independent nonlawyers, such as paraprofession-als, who are authorized by the law of a jurisdiction to provideparticular law-related services. In addition, a lawyer maycounsel nonlawyers who wish to proceed pro se.

[4] Other than as authorized by law or this Rule, a DomesticLawyer violates paragraph (b) and a Foreign Lawyer violatesparagraph (e) if the Domestic or Foreign Lawyer establishes anoffice or other systematic and continuous presence in this juris-diction for the practice of law. Presence may be systematic andcontinuous even if the Domestic or Foreign Lawyer is not phys-ically present here. Such Domestic or Foreign Lawyer must nothold out to the public or otherwise represent that the Domesticor Foreign Lawyer is admitted to practice law in this jurisdic-tion. See also Rules 7.1(a) and 7.5(b).

[5] There are occasions in which a Domestic or ForeignLawyer, who is not disbarred or suspended from practice inany jurisdiction, may provide legal services on a temporarybasis in this jurisdiction under circumstances that do not createan unreasonable risk to the interests of their clients, the publicor the courts. Paragraph (c) identifies four such circumstancesfor the Domestic Lawyer. Paragraph (e) identifies five such cir-cumstances for the Foreign Lawyer. The fact that conduct isnot so identified does not imply that the conduct is or is notauthorized. With the exception of paragraphs (d)(1) and (d)(2),this Rule does not authorize a Domestic Lawyer to establish anoffice or other systematic and continuous presence in this juris-diction without being admitted to practice generally here.

[6] There is no single test to determine whether a Foreignor Domestic Lawyer’s services are provided on a “temporarybasis” in this jurisdiction, and may therefore be permissibleunder paragraph (c) or paragraph (e). Services may be “tem-porary” even though the Foreign or Domestic Lawyer pro-vides services in this jurisdiction on a recurring basis, or for anextended period of time, as when the Domestic Lawyer is rep-resenting a client in a single lengthy negotiation or litigation.

[7] Paragraphs (c) and (d) apply to Domestic Lawyers.Paragraphs (e) and (f) apply to Foreign Lawyers. Paragraphs(c) and (e) contemplate that the Domestic or Foreign Lawyeris authorized to practice in the jurisdiction in which theDomestic or Foreign Lawyer is admitted and excludes aDomestic or Foreign Lawyer who while technically admittedis not authorized to practice, because, for example, theDomestic or Foreign Lawyer is on inactive status.

[8] Paragraph (c)(1) recognizes that the interests of clientsand the public are protected if a Domestic Lawyer associateswith a lawyer licensed to practice in this jurisdiction.Paragraph (e)(1) recognizes that the interests of clients andthe public are protected if a Foreign Lawyer associates with alawyer licensed to practice in this jurisdiction. For these para-graphs to apply, however, the lawyer admitted to practice inthis jurisdiction must actively participate in and share respon-sibility for the representation of the client.

[9] Domestic Lawyers not admitted to practice generally ina jurisdiction may be authorized by law or order of a tribunalor an administrative agency to appear before the tribunal oragency. This authority may be granted pursuant to formalrules governing admission pro hac vice or pursuant to infor-mal practice of the tribunal or agency. Under paragraph(c)(2), a Domestic Lawyer does not violate this Rule when theDomestic Lawyer appears before a tribunal or agency pur-suant to such authority. To the extent that a court rule orother law of this jurisdiction requires a Domestic Lawyer to

February 2004 75

obtain admission pro hac vice before appearing before a tri-bunal or administrative agency, this Rule requires theDomestic Lawyer to obtain that authority.

[10] Paragraph (c)(2) also provides that a DomesticLawyer rendering services in this jurisdiction on a temporarybasis does not violate this Rule when the Domestic Lawyerengages in conduct in anticipation of a proceeding or hearingin a jurisdiction in which the Domestic Lawyer is authorizedto practice law or in which the Domestic Lawyer reasonablyexpects to be admitted pro hac vice. Examples of such con-duct include meetings with the client, interviews of potentialwitnesses, and the review of documents. Similarly, aDomestic Lawyer may engage in conduct temporarily in thisjurisdiction in connection with pending litigation in anotherjurisdiction in which the Domestic Lawyer is or reasonablyexpects to be authorized to appear, including taking deposi-tions in this jurisdiction.

[11] When a Domestic Lawyer has been or reasonablyexpects to be admitted to appear before a court or adminis-trative agency, paragraph (c)(2) also permits conduct bylawyers who are associated with that lawyer in the matter,but who do not expect to appear before the court or adminis-trative agency. For example, subordinate Domestic Lawyersmay conduct research, review documents, and attend meet-ings with witnesses in support of the Domestic Lawyerresponsible for the litigation.

[12] Paragraph (c)(3) permits a Domestic Lawyer, andParagraph (e)(3) permits a Foreign Lawyer, to perform serviceson a temporary basis in this jurisdiction if those services are in orreasonably related to a pending or potential arbitration, media-tion, or other alternative dispute resolution proceeding in this oranother jurisdiction, if the services arise out of or are reasonablyrelated to the Domestic or Foreign Lawyer’s practice in a juris-diction in which the Domestic or Foreign Lawyer is admitted topractice. The Domestic Lawyer, however, must obtain admis-sion pro hac vice in the case of a court-annexed arbitration ormediation or otherwise if court rules or law so require.

[13] Paragraph (c)(4) permits a Domestic Lawyer to pro-vide certain legal services on a temporary basis in this juris-diction that arise out of or are reasonably related to theDomestic Lawyer’s practice in a jurisdiction in which theDomestic Lawyer is admitted but are not within paragraphs(c)(2) or (c)(3). These services include both legal services andservices that nonlawyers may perform but that are consideredthe practice of law when performed by lawyers. Paragraph(e)(4)(i) permits a Foreign Lawyer to provide certain legalservices in this jurisdiction on behalf of a client who resides orhas an office in the jurisdiction in which the Foreign Lawyeris authorized to practice. Paragraph (e)(4)(ii) permits aForeign Lawyer to provide certain legal services on a tempo-rary basis in this jurisdiction that arise out of or are reason-ably related to a matter that has a substantial connection tothe jurisdiction in which the Foreign Lawyer is authorized topractice. These services include both legal services and serv-ices that nonlawyers may perform but that are considered thepractice of law when performed by lawyers.

[14] Paragraphs (c)(3) and (c)(4) require that the servicesarise out of or be reasonably related to the Domestic Lawyer’spractice in a jurisdiction in which the Domestic Lawyer isadmitted. Paragraphs (e)(3) and (e)(4)(ii) require that theservices arise out of or be reasonably related to the ForeignLawyer’s practice in a jurisdiction in which the ForeignLawyer is admitted to practice. A variety of factors evidence

such a relationship. The Domestic or Foreign Lawyer’s clientmay have been previously represented by the Domestic orForeign Lawyer, or may be resident in or have substantialcontacts with the jurisdiction in which the Domestic orForeign Lawyer is admitted. The matter, although involvingother jurisdictions, may have a significant connection withthat jurisdiction. In other cases, significant aspects of theDomestic or Foreign Lawyer’s work might be conducted inthat jurisdiction or a significant aspect of the matter mayinvolve the law of that jurisdiction. The necessary relation-ship might arise when the client’s activities or the legal issuesinvolve multiple jurisdictions, such as when the officers of amultinational corporation survey potential business sites andseek the services of their Domestic or Foreign Lawyer inassessing the relative merits of each. In addition, the servicesmay draw on the Domestic or Foreign Lawyer’s recognizedexpertise developed through the regular practice of law onbehalf of clients in matters involving a particular body of fed-eral, nationally-uniform, foreign, or international law.

[15] Paragraph (d) identifies two circumstances in which aDomestic Lawyer, who is not disbarred or suspended frompractice in any jurisdiction, may establish an office or othersystematic and continuous presence in this jurisdiction for thepractice of law as well as provide legal services on a tempo-rary basis. Except as provided in paragraphs (d)(1) and (d)(2),a Domestic Lawyer who establishes an office or other system-atic or continuous presence in this jurisdiction must becomeadmitted to practice law generally in this jurisdiction.

[16] Paragraph (d)(1) applies to a Domestic Lawyer who isemployed by a client to provide legal services to the client orits organizational affiliates, i.e., entities that control, are con-trolled by, or are under common control with the employer.This paragraph does not authorize the provision of personallegal services to the employer’s officers or employees. Theparagraph applies to in-house corporate lawyers, governmentlawyers and others who are employed to render legal servic-es to the employer. The Domestic Lawyer’s ability to repre-sent the employer outside the jurisdiction in which theDomestic Lawyer is licensed generally serves the interests ofthe employer and does not create an unreasonable risk to theclient and others because the employer is well situated toassess the Domestic Lawyer’s qualifications and the quality ofthe Domestic Lawyer’s work.

[17] If an employed Domestic Lawyer establishes an officeor other systematic presence in this jurisdiction for the pur-pose of rendering legal services to the employer, the DomesticLawyer may be subject to registration or other requirements,including assessments for client protection funds and manda-tory continuing legal education.

[18] Paragraph (d)(2) recognizes that a Domestic Lawyermay provide legal services in a jurisdiction in which theDomestic Lawyer is not licensed when authorized to do so byfederal or other law, which includes statute, court rule, exec-utive regulation or judicial precedent. Paragraph (e)(5) rec-ognizes that a Foreign Lawyer may provide legal serviceswhen the services provided are governed by international lawor the law of a foreign jurisdiction.

[19] A Domestic or Foreign Lawyer who practices law inthis jurisdiction pursuant to paragraphs (c), (d) or (e) or oth-erwise is subject to the disciplinary authority of this jurisdic-tion. See Rule 8.5(a).

[20] In some circumstances, a Domestic Lawyer who prac-tices law in this jurisdiction pursuant to paragraphs (c) or (d)


may have to inform the client that the Domestic Lawyer is notlicensed to practice law in this jurisdiction. For example, thatmay be required when the representation occurs primarily inthis jurisdiction and requires knowledge of the law of thisjurisdiction. See Rule 1.4.

[21] Paragraphs (c), (d) and (e) do not authorize commu-nications advertising legal services to prospective clients inthis jurisdiction by Domestic or Foreign Lawyers who areadmitted to practice in other jurisdictions. Whether and howDomestic or Foreign Lawyers may communicate the avail-ability of their services to prospective clients in this jurisdic-tion is governed by Rules 7.1 to 7.5.

c.) Proposed Amendmentsto Rule 8.5 of the GeorgiaRules of Professional Conduct

The State Bar proposes that Rule 8.5 of the Georgia Rulesof Professional Conduct be amended as shown below bydeleting the stricken portions of the Rule, and inserting thephrases shown below in italicized and underlined typeface.

RULE 8.5: DISCIPLINARY AUTHORITY; CHOICE OF LAW

(a) Disciplinary Authority. A lawyer admitted topractice in this jurisdiction is subject to the disciplinaryauthority of this jurisdiction, regardless of where thelawyer’s conduct occurs. A Domestic or Foreign Lawyeris also subject to the disciplinary authority of this juris-diction if the Domestic or Foreign Lawyer provides oroffers to provide any legal services in this jurisdiction. Alawyer or Domestic or Foreign Lawyer may be subject tothe disciplinary authority of both this jurisdiction andanother jurisdiction where the lawyer is admitted forthe same conduct.

(b) Choice of Law. In any exercise of the discipli-nary authority of this jurisdiction, the rules of profes-sional conduct to be applied shall be as follows:

(1) for conduct in connection with a proceedingin matter pending before a court before which alawyer has been admitted to practice (either gener-ally or for purposes of that proceeding) tribunal, therules to be applied shall be the rules of the juris-diction in which the court tribunal sits, unless therules of the court tribunal provide otherwise; and

(2) for any other conduct, the rules of the juris-diction in which the lawyer or Domestic or ForeignLawyer’s conduct occurred, or, if the predominanteffect of the conduct is in a different jurisdiction, therules of that jurisdiction shall be applied to the con-duct. A lawyer or Domestic or Foreign Lawyer shallnot be subject to discipline if the lawyer’s orDomestic or Foreign Lawyer’s conduct conforms tothe rules of a jurisdiction in which the lawyer orDomestic or Foreign Lawyer reasonably believes thepredominant effect of the lawyer or Domestic orForeign Lawyer’s conduct will occur.

(i) if the lawyer is licensed to practice onlyin this jurisdiction, the rules to be appliedshall be the rules of this jurisdiction, and

(ii) if the lawyer is licensed to practice inthis and another jurisdiction, the rules to be

applied shall be the rules of the admittingjurisdiction in which the lawyer principallypractices; provided, however, that if particularconduct clearly has its predominant effect inanother jurisdiction in which the lawyer islicensed to practice, the rules of that jurisdic-tion shall be applied to that conduct.

Comment

Disciplinary Authority

[1] Paragraph (a) restates It is longstanding law that theconduct of a lawyer admitted to practice in this jurisdiction is sub-ject to the disciplinary authority of this jurisdiction. Extension ofthe disciplinary authority of this jurisdiction to Domestic orForeign Lawyers who provide or offer to provide legal services inthis jurisdiction is for the protection of the citizens of this jurisdic-tion. Reciprocal enforcement of a jurisdiction’s disciplinary find-ings and sanctions will further advance the purposes of this Rule.See, Rule 9.4: Jurisdiction and Reciprocal Discipline. A Domesticor Foreign Lawyer who is subject to the disciplinary authority ofthis jurisdiction under Rule 8.5(a) appoints an official to be desig-nated by this Court to receive service of process in this jurisdic-tion. The fact that the Domestic or Foreign Lawyer is subject to thedisciplinary authority of this jurisdiction may be a factor in deter-mining whether personal jurisdiction may be asserted over thelawyer for civil matters.

Choice of Law

[2] A lawyer or Domestic or Foreign Lawyer may be poten-tially subject to more than one set of rules of professional con-duct which impose different obligations. The lawyer orDomestic or Foreign Lawyer may be licensed to practice in morethan one jurisdiction with differing rules, or may be admittedto practice before a particular court with rules that differ fromthose of the jurisdiction or jurisdictions in which the lawyer orDomestic or Foreign Lawyer is licensed to practice. In the past,decisions have not developed clear or consistent guidance asto which rules apply in such circumstances. Additionally, thelawyer or Domestic or Foreign Lawyer’s conduct may involve sig-nificant contacts with more than one jurisdiction.

[3] Paragraph (b) seeks to resolve such potential conflicts.Its premise is that minimizing conflicts between rules, as wellas uncertainty about which rules are applicable, is in the bestinterest of both clients and the profession (as well as the bodieshaving authority to regulate the profession). Accordingly, ittakes the approach of (i) providing that any particular conductof a lawyer or Domestic or Foreign Lawyer shall be subject to onlyone set of rules of professional conduct, and (ii) making thedetermination of which set of rules applies to particular con-duct as straightforward as possible, consistent with recognitionof appropriate regulatory interests of relevant jurisdictions, and(iii) providing protection from discipline for lawyers or Domestic orForeign Lawyers who act reasonably in the face of uncertainty.

[4] Paragraph (b)(1) provides that as to a lawyer orDomestic or Foreign Lawyer conduct relating to a proceeding inpending before a court before which the lawyer is admitted topractice (either generally or pro hac vice) tribunal, the lawyeror Domestic or Foreign Lawyer shall be subject only to the rulesof professional conduct of that court the jurisdiction in whichthe tribunal sits unless the rules of the tribunal, including its choice

February 2004 77

of law rule, provide otherwise. As to all other conduct, includingconduct in anticipation of a proceeding not yet pending before a tri-bunal, paragraph (b)(2) provides that a lawyer or Domestic orForeign Lawyer licensed to practice only in this jurisdictionshall be subject to the rules of professional conduct of thisjurisdiction, and that a lawyer licensed in multiple jurisdic-tions shall be subject only to the rules of the jurisdiction wherehe or she (as an individual, not his or her firm) principallypractices, but with one exception: if particular conduct clear-ly has its predominant effect in another admitting jurisdic-tion, then only the rules of that jurisdiction shall apply. Theintention is for the latter exception to be a narrow one. Itwould be appropriately applied, for example, to a situation inwhich a lawyer admitted in, and principally practicing in,State A, but also admitted in State B, handled an acquisitionby a company whose headquarters and operations were inState B of another, similar such company. The exceptionwould not appropriately be applied, on the other hand, if thelawyer handled an acquisition by a company whose head-quarters and operations were in State A of a company whoseheadquarters and main operations were in State A, but whichalso had some operations in State B shall be subject to the rulesof the jurisdiction in which the lawyer or Domestic or ForeignLawyer’s conduct occurred, or, if the predominant effect of the con-duct is in another jurisdiction, the rules of that jurisdiction shall beapplied to the conduct. In the case of conduct in anticipation of aproceeding that is likely to be before a tribunal, the predominanteffect of such conduct could be where the conduct occurred, wherethe tribunal sits or in another jurisdiction.

[5] When a lawyer or Domestic or Foreign Lawyer’s conductinvolves significant contacts with more than one jurisdiction, it maynot be clear whether the predominant effect of the lawyer orDomestic or Foreign Lawyer’s conduct will occur in a jurisdictionother than the one in which the conduct occurred. So long as thelawyer or Domestic or Foreign Lawyer’s conduct conforms to therules of a jurisdiction in which the lawyer or Domestic or ForeignLawyer reasonably believes the predominant effect will occur, thelawyer or Domestic or Foreign Lawyer shall not be subject to disci-pline under this Rule.

[5] [6] If two admitting jurisdictions were to proceed againsta lawyer or Domestic or Foreign Lawyer for the same conduct,they should, applying this rule, identify the same governingethics rules. They should take all appropriate steps to see thatthey do apply the same rule to the same conduct, and in allevents should avoid proceeding against a lawyer or Domestic orForeign Lawyer on the basis of two inconsistent rules.

[6] [7] The choice of law provision is not intended to applyto applies to lawyers or Domestic or Foreign Lawyer engaged intransnational practice, unless international law, treaties or otheragreements between competent regulatory authorities in the affect-ed jurisdictions provide otherwise. Choice of law in this contextshould be the subject of agreements between jurisdictions orof appropriate international law.

If adopted, the amended Rule 8.5 of the Georgia Rules ofProfessional Conduct would read as follows:

RULE 8.5: DISCIPLINARY AUTHORITY;CHOICE OF LAW

(a) Disciplinary Authority. A lawyer admitted topractice in this jurisdiction is subject to the disciplinaryauthority of this jurisdiction, regardless of where the

lawyer’s conduct occurs. A Domestic or Foreign Lawyeris also subject to the disciplinary authority of this juris-diction if the Domestic or Foreign Lawyer provides oroffers to provide any legal services in this jurisdiction.A lawyer or Domestic or Foreign Lawyer may be sub-ject to the disciplinary authority of both this jurisdic-tion and another jurisdiction for the same conduct.

(b) Choice of Law. In any exercise of thedisciplinary authority of this jurisdiction, therules of professional conduct to be appliedshall be as follows:

(1) for conduct in connection with a matterpending before a tribunal, the rules of the jurisdic-tion in which the tribunal sits, unless the rules ofthe tribunal provide otherwise; and

(2) for any other conduct, the rules of the juris-diction in which the lawyer or Domestic or ForeignLawyer’s conduct occurred, or, if the predominanteffect of the conduct is in a different jurisdiction,the rules of that jurisdiction shall be applied to theconduct. A lawyer or Domestic or Foreign Lawyershall not be subject to discipline if the lawyer’s orDomestic or Foreign Lawyer’s conduct conforms tothe rules of a jurisdiction in which the lawyer orDomestic or Foreign Lawyer reasonably believesthe predominant effect of the lawyer or Domesticor Foreign Lawyer’s conduct will occur.

Comment

Disciplinary Authority

[1] It is longstanding law that the conduct of a lawyeradmitted to practice in this jurisdiction is subject to the disci-plinary authority of this jurisdiction. Extension of the discipli-nary authority of this jurisdiction to Domestic or ForeignLawyers who provide or offer to provide legal services in thisjurisdiction is for the protection of the citizens of this jurisdic-tion. Reciprocal enforcement of a jurisdiction’s disciplinaryfindings and sanctions will further advance the purposes ofthis Rule. See, Rule 9.4: Jurisdiction and Reciprocal Discipline.A Domestic or Foreign Lawyer who is subject to the discipli-nary authority of this jurisdiction under Rule 8.5(a) appointsan official to be designated by this Court to receive service ofprocess in this jurisdiction. The fact that the Domestic orForeign Lawyer is subject to the disciplinary authority of thisjurisdiction may be a factor in determining whether personaljurisdiction may be asserted over the lawyer for civil matters.

Choice of Law

[2] A lawyer or Domestic or Foreign Lawyer may bepotentially subject to more than one set of rules of profes-sional conduct which impose different obligations. Thelawyer or Domestic or Foreign Lawyer may be licensed topractice in more than one jurisdiction with differing rules, ormay be admitted to practice before a particular court withrules that differ from those of the jurisdiction or jurisdictionsin which the lawyer or Domestic or Foreign Lawyer islicensed to practice. Additionally, the lawyer or Domestic orForeign Lawyer’s conduct may involve significant contactswith more than one jurisdiction.

[3] Paragraph (b) seeks to resolve such potential conflicts.Its premise is that minimizing conflicts between rules, as wellas uncertainty about which rules are applicable, is in the best


interest of both clients and the profession (as well as the bod-ies having authority to regulate the profession). Accordingly,it takes the approach of (i) providing that any particular con-duct of a lawyer or Domestic or Foreign Lawyer shall be sub-ject to only one set of rules of professional conduct, (ii) mak-ing the determination of which set of rules applies to particu-lar conduct as straightforward as possible, consistent withrecognition of appropriate regulatory interests of relevantjurisdictions, and (iii) providing protection from discipline forlawyers or Domestic or Foreign Lawyers who act reasonablyin the face of uncertainty.

[4] Paragraph (b)(1) provides that as to a lawyer orDomestic or Foreign Lawyer conduct relating to a proceed-ing pending before a tribunal, the lawyer or Domestic orForeign Lawyer shall be subject only to the rules of thejurisdiction in which the tribunal sits unless the rules of thetribunal, including its choice of law rule, provide other-wise. As to all other conduct, including conduct in antici-pation of a proceeding not yet pending before a tribunal,paragraph (b)(2) provides that a lawyer or Domestic orForeign Lawyer shall be subject to the rules of the jurisdic-tion in which the lawyer or Domestic or Foreign Lawyer’sconduct occurred, or, if the predominant effect of the con-duct is in another jurisdiction, the rules of that jurisdictionshall be applied to the conduct. In the case of conduct inanticipation of a proceeding that is likely to be before a tri-bunal, the predominant effect of such conduct could bewhere the conduct occurred, where the tribunal sits or inanother jurisdiction.

[5] When a lawyer or Domestic or Foreign Lawyer’s con-duct involves significant contacts with more than one juris-diction, it may not be clear whether the predominant effect ofthe lawyer or Domestic or Foreign Lawyer’s conduct willoccur in a jurisdiction other than the one in which the conductoccurred. So long as the lawyer or Domestic or ForeignLawyer’s conduct conforms to the rules of a jurisdiction inwhich the lawyer or Domestic or Foreign Lawyer reasonablybelieves the predominant effect will occur, the lawyer orDomestic or Foreign Lawyer shall not be subject to disciplineunder this Rule.

[6] If two admitting jurisdictions were to proceedagainst a lawyer or Domestic or Foreign Lawyer for thesame conduct, they should, applying this rule, identify thesame governing ethics rules. They should take all appropri-ate steps to see that they do apply the same rule to the sameconduct, and in all events should avoid proceeding againsta lawyer or Domestic or Foreign Lawyer on the basis of twoinconsistent rules.

[7] The choice of law provision applies to lawyers orDomestic or Foreign Lawyer engaged in transnational prac-tice, unless international law, treaties or other agreementsbetween competent regulatory authorities in the affectedjurisdictions provide otherwise.

d.) Proposed Amendmentsto Rule 9.4 of the GeorgiaRules of Professional ConductThe State Bar proposes that the current Rule 9.4 of the

Georgia Rules of Professional Conduct be deleted in its entire-ty, and the following Rule be substituted in its place.

RULE 9.4: JURISDICTION AND RECIPROCAL DISCIPLINE

(a) Jurisdiction. Any lawyer admitted to practicelaw in this jurisdiction, including any formerly admit-ted lawyer with respect to acts committed prior to res-ignation, suspension, disbarment, or removal frompractice on any of the grounds provided in Rule 4-105of the State Bar, or with respect to acts subsequentthereto which amount to the practice of law or consti-tute a violation of the Georgia Rules of ProfessionalConduct or any Rules or Code subsequently adoptedby the court in lieu thereof, and any Domestic orForeign Lawyer specially admitted by a court of thisjurisdiction for a particular proceeding and anyDomestic or Foreign Lawyer who practices law or ren-ders or offers to render any legal services in this juris-diction, is subject to the disciplinary jurisdiction of theState Bar of Georgia State Disciplinary Board.

(b) Reciprocal Discipline. Upon being disciplinedin another jurisdiction, a lawyer admitted to practice inGeorgia shall promptly inform the Office of GeneralCounsel of the State Bar of Georgia of the discipline.Upon notification from any source that a lawyer withinthe jurisdiction of the State Bar of Georgia has beendisciplined in another jurisdiction, the Office ofGeneral Counsel shall obtain a certified copy of the dis-ciplinary order and file it with the Investigative Panelof the State Disciplinary Board.

(1) Upon receipt of a certified copy of an orderdemonstrating that a lawyer admitted to practice inGeorgia has been disciplined in another jurisdic-tion, the Investigative Panel of the StateDisciplinary Board shall forthwith issue a noticedirected to the lawyer containing:

(i) A copy of the order from theother jurisdiction; and

(ii) An order directing that the lawyerinform the Office of General Counsel and theReview Panel, within thirty days from serviceof the notice, of any claim by the lawyer pred-icated upon the grounds set forth in paragraph(b)(3) below, that the imposition of the identi-cal discipline in this jurisdiction would beunwarranted and the reasons for that claim.(2) In the event the discipline imposed in the

other jurisdiction has been stayed there, any recip-rocal discipline imposed in this jurisdiction shallbe deferred until the stay expires.

(3) Upon the expiration of thirty days fromservice of the notice pursuant to the provisions ofparagraph (b)(1), the Review Panel shall recom-mend to the Georgia Supreme Court the identicaldiscipline, or removal from practice on the groundsprovided in Rule 4-104, unless the Office ofGeneral Counsel or the lawyer demonstrates, or theReview Panel finds that it clearly appears upon theface of the record from which the discipline ispredicated, that:

(i) The procedure was so lacking innotice or opportunity to be heard as to consti-tute a deprivation of due process; or

February 2004 79

(ii) There was such infirmity ofproof establishing the misconduct asto give rise to the clear conviction thatthe court could not, consistent with itsduty, accept as final the conclusion onthat subject; or

(iii) The discipline imposed would resultin grave injustice or be offensive to the publicpolicy of the jurisdiction; or

(iv) The reason for the originaldisciplinary status no longer exists; or

(v) (a) the conduct did not occur within

the state of Georgia; and,(b) the discipline imposed by the for-

eign jurisdiction exceeds the level of dis-cipline allowed under these Rules.

If the Review Panel determines that any of those ele-ments exists, the Review Panel shall make such other rec-ommendation to the Georgia Supreme Court as it deemsappropriate. The burden is on the party seeking differentdiscipline in this jurisdiction to demonstrate that the impo-sition of the same discipline is not appropriate.

(4) In all other aspects, a final adjudication inanother jurisdiction that a lawyer, whether or notadmitted in that jurisdiction, has been guilty ofmisconduct, or has been removed from practice onany of the grounds provided in Rule 4-104 of theState Bar, shall establish conclusively the miscon-duct or the removal from practice for purposes of adisciplinary proceeding in this state.

The maximum penalty for a violation of this Rule isdisbarment.

Comment

[1] If a lawyer suspended or disbarred in one jurisdic-tion is also admitted in another jurisdiction and no actioncan be taken against the lawyer until a new disciplinaryproceeding is instituted, tried, and concluded, the public inthe second jurisdiction is left unprotected against a lawyerwho has been judicially determined to be unfit. Any proce-dure which so exposes innocent clients to harm cannot bejustified. The spectacle of a lawyer disbarred in one juris-diction yet permitted to practice elsewhere exposes the pro-fession to criticism and undermines public confidence in theadministration of justice.

[2] The Office of the General Counsel of the State Bar ofGeorgia should be notified by disciplinary counsel of thejurisdiction where the original discipline was imposed. Uponreceipt of such information, the Office of General Counselshould promptly notify the Investigative Panel. The Panelshould promptly obtain and serve upon the lawyer an orderto show cause why identical discipline should not be imposedin Georgia. The certified copy of the order in the original juris-diction should be incorporated into the order to show cause.

[3] The imposition of discipline in one jurisdiction doesnot mean that Georgia and every other jurisdiction in whichthe lawyer is admitted must necessarily impose discipline.The Review Panel has jurisdiction to recommend reciprocaldiscipline on the basis of public discipline imposed by a juris-diction in which the respondent is licensed.

[4] A judicial determination of misconduct by the respon-dent in another jurisdiction is conclusive, and not subject torelitigation in the forum jurisdiction. The Review Panelshould recommend identical discipline unless it determines,after review limited to the record of the proceedings in theforeign jurisdiction, that one of the grounds specified in para-graph (b)(3) exists. This Rule applies whether or not therespondent is admitted to practice in the foreign jurisdiction.See also, Rule 8.5: Disciplinary Authority; Choice of Law,Comment [1].

[5] For purposes of this Rule, the suspension or placementof a lawyer on inactive status in another jurisdiction becauseof want of sound mind, senility, habitual intoxication or drugaddiction, to the extent of impairment of competency as anattorney shall be considered a disciplinary suspension underthe Rules of the State Bar of Georgia.

II.Proposed Amendment to Part IV, Chapter 4, Advisory Opinions,

of the Rules of the State Bar of Georgia

It is proposed that a new Rule 4-404 be added to Part IV,Chapter 4, of the Rules of the State Bar of Georgia. The pro-posed Rule would provide immunity to the members andstaff of the Formal Advisory Opinion Board. The text of theproposed new Rule is as follows:

Rule 4-404. ImmunityThe members of the Formal Advisory Opinion Board, as

well as staff persons and counsel assisting the Board and its mem-bers, including, but not limited to staff counsel, advisors and theState Bar of Georgia, its officers and employees, members of theExecutive Committee, and members of the Board of Governors, shallhave absolute immunity from civil liability for all acts performed inthe course of their official duties.

III.Proposed Amendment to Part X, Rule 10-104,

of the Rules of the State Bar of Georgia

It is proposed that Part X, Rule 10-104, Board of Trustees,be amended by deleting the stricken portions of the rule, andinserting the phrases shown below in italicized and under-lined typeface.

Rule 10-104. Board of Trustees(a) The Board of Trustees shall consist of four (4) six

(6) lawyers and one (1) non-lawyer appointed by thePresident of the State Bar. of Georgia, for terms as fol-lows: one for one year, one for two years, one for threeyears, and one for five years. After the initial appoint-ments, subsequent The initial appointments to the Boardshall be of such terms as to result in the staggered expiration ofthe terms of all members of the Board. Thereafter, the appoint-ments shall be for a term of five (5) years.

(b) Vacancies shall be filled by appointment of thePresident of the State Bar of Georgia for any unexpiredterm.

(c) The Board members shall select a chairperson,and such other officers as the Board members deemappropriate.

(d) A quorum for the transaction of business at any meetingof the Board shall consist of three current members in attendance.


(d) (e) The Board may adopt a regulation to terminateTrustees who fail to regularly attend meetings and may adoptadditional regulations for the administration of the Fundwhich are not otherwise inconsistent with these rules.

If adopted, the amended Rule 10-104 would read as fol-lows:

Rule 10-104. Board of Trustees(a) The Board of Trustees shall consist of six (6)

lawyers and one (1) non-lawyer appointed by thePresident of the State Bar. The initial appointments to theBoard shall be of such terms as to result in the staggeredexpiration of the terms of all members of the Board.Thereafter, the appointments shall be for a term of five (5)years.

(b) Vacancies shall be filled by appointment of thePresident of the State Bar of Georgia for any unexpiredterm.

(c) The Board members shall select a chairperson,and such other officers as the Board members deemappropriate.

(d) A quorum for the transaction of business at anymeeting of the Board shall consist of three current mem-bers in attendance.

(e) The Board may adopt a regulation to terminateTrustees who fail to regularly attend meetings and mayadopt additional regulations for the administration of theFund which are not otherwise inconsistent with theserules.

SO MOVED, this _______ day of _________________, 2004

Counsel for the State Bar of Georgia

______________________________

William P. Smith, IIIGeneral Counsel

State Bar No. 665000

______________________________

Robert E. McCormackDeputy General Counsel

State Bar No. 485375

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

February 2004 81

NoticeNotice of Public Meeting

Pursuant to Bar Rule 14-9.1, the Standing Committee on the Unlicensed Practice of Law has received a request foran advisory opinion as to whether a certain activity constitutes the unlicensed practice of law. The particular situa-tion presented is as follows:

Is the preparation or filing of a lien considered the unlicensed practice of law if it is done by someone other than thelienholder or a licensed Georgia attorney?

In accordance with Bar Rule 14-9.1(f), notice is hereby given that a public meeting concerning this matter will beheld at 10 a.m. on March 19, 2004, at the Macon Holiday Inn and Conference Center, 3590 Riverside Drive, Macon,Georgia. Prior to the meeting, individuals are invited to submit any written comments regarding this issue to UPLAdvisory Opinions, State Bar of Georgia, Suite 100, 104 Marietta Street NW, Atlanta, Georgia 30303.


Amy Lynn [email protected]

Richard O. Allen , St. MarysPhone (912) 882-7648

Donna G. BarwickMellon Private WealthManagement3290 Northside Parkway,Suite 950Atlanta GA 30327Phone (678) 538-2000Fax (678) 538-2010

James C. Bonner Jr., AtlantaPhone (404) 232-8900

Charles W. Brannon Jr.(912) [email protected]

Jay Daniel Brownstein(770) 458-9060

Neal [email protected]

C. Wilson Dubose(Incorrectly listed atMadison office)BOG-Atlanta Circuit, Post 12Winkler, DuBose & Davis,L.L.C.303 Peachtree St., Suite 4540 Atlanta, GA 30308Phone (404) [email protected]

Lucia Duncan-Harrison4061 Shawnee Lane NE,Atlanta, GA 30319-1538(770) 452-0447

C. Darrell GossettNo email address

James Sheridan GrimesAthensPhone (706) 208-0043

Michael L. HubbardSuite 3023133 Golf Ridge BlvdDouglasville, GA 30134

Robert W. Hughes Jr.Hughes & Associates, P. C.Suite B 2415 West Park Place Blvd.Stone Mountain, GA 30087Phone (770) 469-8887Fax (770) [email protected]

Gregory John LohmeierDecaturIncorrectly listed as Fellow ofLawyers Foundation of Ga.

Laurie J. Mintz3Com Corporation5400 Bayfront PlazaM/S 1308Santa Clara, CA [email protected]

Bryan Yale Monroe, AtlantaPhone (404) 525-2080Fax (404) 522-2034

Darrin L. Parker, [email protected]

T. Eric Ponder2706 Winding LaneAtlanta, GA 30319(678) 530-9900

Leon RiceMurrells Inlet, SC

Billy M. Shivers, Lilburn(770) 925-8463

Judge R. Rucker SmithAmericus(229) 928-4555Fax: (229) 928-4552

Jay I. SolomonLaw Offices of Jay I. SolomonSuite 1350 900 Circle 75 ParkwayAtlanta, GA 30339Phone (770) 955-1055Fax (770) [email protected]

Lester ChristopherSolomonSolomon & Associates PCP. O. Box 1542 Moultrie, GA 31776Phone (229) 616-4269fax(229) [email protected]

Donna Fondry StevensDuluthIncorrectly listed as a judge

Douglas R. ThompsonNot listed on page A-15 asChair of Taxation Section3151 Maple Dr., NEAtlanta, GA 30305(404) 365-5682(404) [email protected]

Audrey McFarlin TolsonAtlanta [email protected]

Reinhard von HennigsByrne Davis & Hicks PCSuite 1460 Tower Place 100 3340 Peachtree Road NEAtlanta, GA 30326phone (404) 364-1460fax (404) [email protected]

Deborah SchwindWilbanksDistrict Attorney's Office205 N. Alexander St., Suite 208Toccoa, GA 30577

Amanda F. WilliamsFax: (912) 264-8281

AAA Attorney Referral Service . . . . . . 31Arthur Anthony . . . . . . . . . . . . . . . . . 39AXIA . . . . . . . . . . . . . . . . . . . . . . . . . 25Baker, Donelson . . . . . . . . . . . . . . . . . . 1Daniel Turner Builders, Inc. . . . . . . . . . 31Daniels-Head Insurance . . . . . . . . . . . 23Elizabeth Mehlman, J.D., Ph.D. . . . . . . 5Florida Detox . . . . . . . . . . . . . . . . . . . 33Georgia Lawyers Insurance Co.. . . . . . 13Gilsbar, Inc. . . . . . . . . . . . . . . . . . . . . 37Golden Lantern . . . . . . . . . . . . . . . . . 55Imbordino Polygraph Examinations. . . 29

Insurance Specialists, Inc. . . . . . . . . . IBCLawyers Direct. . . . . . . . . . . . . . . . . . 21LexisNexis . . . . . . . . . . . . . . . . . . . . . IFCMainstreet . . . . . . . . . . . . . . . . . . . . 15Marcia G. Shein . . . . . . . . . . . . . . . . 31Mitchell Kaye Valuation. . . . . . . . . . . 47Prolegia . . . . . . . . . . . . . . . . . . . . . . . 9SoftPro . . . . . . . . . . . . . . . . . . . . . . . . 7South Georgia ADR. . . . . . . . . . . . . . 45The Georgia Fund . . . . . . . . . . . . . . . 51West. . . . . . . . . . . . . . . . . . . 27, 33, BC

Advertisers Index

Submitted Changes/Corrections to the 2003-04 State Bar Directory.

classifiedR

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February 2004 83

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Judges and Evaluators needed forRegional Competitions

2004 Regional Competition Cities and Dates:Macon (2/28), Canton (2/28), Brunswick (2/21),Marietta (2/28), Decatur (2/28), Atlanta (2/21 &2/28), Lawrenceville (2/27-8), Dalton (2/27-8),

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