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F E B R U A R Y 1 9 9 9 1EXPLORING PRODUCE LAW • CHILD SUPPORT CENTER • MIDYEAR MEETING

Get it in WritingGet it in Writing

G E O R G I A B A R J O U R N A L2

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F E B R U A R Y 1 9 9 9 3

Editorial Board

THEODORE H. DAVIS JR., Editor-in-Chief

JENNIFER M. DAVIS, Managing Editor

LYN ARMSTRONGGARY C. CHRISTY

O. WAYNE ELLERBEEGEORGE W. FRYHOFER III

MICHAEL JABLONSKIANNE R. JACOBS

MICHELLE W. JOHNSONSARAJANE N. LOVE

Officers of the State Bar of Georgia(ex officio members)

WILLIAM E. CANNON JR., ALBANYPresident

RUDOLPH N. PATTERSON, MACONPresident-elect

JAMES B. FRANKLIN , STATESBOROSecretary

GEORGE E. MUNDY, CEDARTOWNTreasurer

LINDA A. KLEIN, ATLANTAImmediate Past President

ROSS J. ADAMS, ATLANTAYLD President

JOSEPH W. DENT, ALBANYYLD President-elect

JAMES D. HYDER JR., AUGUSTAYLD Immediate Past President

Editors Emeritus • (ex officio members)

L. BRETT LOCKWOOD, 1995-1997STEPHANIE B. MANIS, 1993-1995WILLIAM L. BOST JR., 1991-1993

CHARLES R. ADAMS III, 1989-1991L. DALE OWENS, 1987-1989

DONNA G. BARWICK, 1986-1987JAMES C. GAULDEN JR., 1985-1986JERRY B. BLACKSTOCK, 1984-1985STEVEN M. COLLINS, 1982-1984WALTER M. GRANT, 1979-1982STEPHEN E. RAVILLE , 1977-1979ROBERT H. WALLING , 1975-1977

Communications Committee

DENNIS C. O’BRIEN, MARIETTAChairperson

LAMAR W. SIZEMORE JR., MACONVice-Chairperson

Staff

JENNIFER M. DAVISDirector of Communications

AMY E. WILLIAMSCommunications Coordinator

ERIN E. MILESInternet Coordinator

DENISE PUCKETTAdministrative Assistant

D. SCOTT MURRAYMARISA ANNE PAGNATTARO

EARNEST REDWINEAMELIA TOY RUDOLPH

WILLIAM W. SAPPJOHN SPANGLER III

PAMELA WHITE-COLBERTJ. MICHAEL WIGGINS

On the Cover: U.S. District Judge William T. Moore Jr. and Timothy M. O’Brienaddress the ethical issues surrounding a criminal defense attorney’s agreementwith his or her client. (Photo by Richard T. Bryant)

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Manuscript SubmissionsThe Georgia Bar Journal welcomes the submission of unsolicited legal manuscripts on topics of

interest to the State Bar of Georgia or written by members of the State Bar of Georgia. Submissions should be10 to 12 pages, double-spaced (including endnotes) and on letter-size paper. Citations should conform to AUNIFORM SYSTEM OF CITATION (16th ed. 1996). Please address unsolicited manuscripts to: Theodore H.Davis Jr., Editor-in-Chief, Kilpatrick Stockton LLP, 1100 Peachtree St., Suite 2800, Atlanta, GA 30309-4530.Authors will be notified of the Editorial Board’s decision following its next meeting.

The Georgia Bar Journal welcomes the submission of news about local and circuit bar associationhappenings, Bar members, law firms and topics of interest to attorneys in Georgia. Please send news releasesand other information to: Jennifer M. Davis, Managing Editor, 800 The Hurt Building, 50 Hurt Plaza, At-lanta, Georgia 30303; phone: (404) 527-8736.

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Publisher’s StatementThe Georgia Bar Journal (SSN-0016-8416) is published six times per year (bi-monthly) by the State

Bar of Georgia, 800 The Hurt Building, 50 Hurt Plaza, Atlanta, Georgia 30303-2934. © State Bar of Georgia1996. One copy of each issue is furnished to members as part of their State Bar dues. Subscriptions: $36 tonon-members. Single copies: $6. Periodicals postage paid in Atlanta, Georgia and additional offices. Opin-ions and conclusions expressed in articles herein are those of the authors and not necessarily those of theEditorial Board, Communications Committee, Officers or Board of Governors of the State Bar of Georgia.Advertising rate card will be furnished upon request. Publishing of an advertisement does not imply endorse-ment of any product or service offered. POSTMASTER: Send address changes to same address.

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February 1999 • Vol. 4 No. 4


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F E B R U A R Y 1 9 9 9 5

T a b l e o f C o n t e n t s

FEBRUARY 1999 • VOL. 4 NO. 4

Legal ArticlesOf Clients & Fees: Ethical Issuesfor Criminal Defense AttorneysBy The Hon. William T. Moore Jr.

and Timothy M. O’Brien10

Perishable Agricultural Commodities Act:A Produce Debtor’s Nightmare;

A Produce Creditor’s DreamBy D. Richard Jones III and Greg B. Walling

20Is There a National Child Support

Center in Your Future?By Robert Swain

26

FeaturesGovernor Barnes Keynotes

Midyear MeetingBy Jennifer M. Davis

30Board of Governors Outlines 1999

Legislative AgendaBy Thomas M. Bollerand Mark Middleton

34Georgia Justice Project Gets Boost with a

$100,000 UPS GrantBy Andy Bowen

36Clayton County Restoring Courthouse,

Building Justice Complex37

Fulton County’s Child AdvocacyCenter in Planning Stage

37President-Elect Seeks Committee

Participation for 1999-200038

DepartmentsFrom The PresidentA Lesson From Annie

By William E. Cannon Jr.6

From The DirectorAn Invitation to Young Lawyers

to Get InvolvedBy Cliff Brashier

7From the YLD President

Seen Up Close, The Bar’s Workis Very ImpressiveBy Ross J. Adams

40Section News

Record Attendance at Midyear Meeting43

Law Practice ManagementMaking 1999 Gossip-Free in Your Firm

By Terri Olson44

Practice TipsDrafting Divorce Settlement Agreements

By Doug Hill46

ProfessionalismForsyth County Bar Goes to School

By Lisa C. McCranie50

Book ReviewA Litigation Resource Worth Its Weight

By John A. Chandler52

From the Attorney General53

Who’s Where54

South Georgia NewsTifton Bar Hosts Chamber Event

55Client Relations

Involving the Client in Decision-Making56

In Memoriam58

Lawyer Discipline58

Georgia Trial Reporter59

Bench & Bar60

NoticesFirst Publication: FAO 94-R11Notice of Filing: FAO 94-R6

Proposed Changes to Disciplinary Rules62

CLE Calendar68

Ad Index69

Classifieds70

20

10


A LESSON FROM ANNIE

By William E. Cannon Jr.

When Annie first came tomy office she was intears. Her husband had

died unexpectedly and she wastotally unprepared to cope with theyears ahead of her. He had taken careof every detail of her life. She didnot know where bank accounts werelocated, what bills were paid everymonth or what taxes were due. Shehad been a loving wife and motherbut was now alone. Her two childrenwere grown and had left home. Shehad no job and no real skills to offera prospective employer. Behind hertears her eyes had the fearful look ofa child separated from a parent forthe first time.

Nothing had prepared me for thisexperience. Sure, I had taken trustand estates in law school and hadprobated a fair number of wills. I haddeveloped some comforting words toutter to the survivors and a smoothway of letting them know thateverything would be all right. Butthis was different. This client neededmore than words — she neededsomeone to lean on.

Over the next few months wemet several times. At first ourmeetings began with fearful ques-tions and words of encouragement.Annie was experiencing difficultylearning the basic activities of

independent living. I thought it wasjust a matter of time until she movedin with one of her children.

As a few months passed I beganto see a change. She learned how tobalance a checkbook and take care ofthe household budget. She found ajob with an understanding employer.The questions became less desperate.As Annie talked about the changes inher life I saw new confidence in her

eyes. She was no longer the fragilewidow that I first met.

Each visit became somethingthat I warmly anticipated. She wouldhave some small problem or ques-tion. I would answer the question orgive some advice and then we wouldtalk about her children. She leftfeeling assured that her problem washandled and I was left with the warmfeeling of accomplishment. Hervisits brought a sense of satisfactionthat I did not always receive from therest of my practice.

The visits are not as frequentnow. She has become much moreconfident and can handle most of thesmall problems that formerly re-

quired a visit with me. I occasionallyreceive a nice note asking a questionand containing some small bit ofnews about her children. SometimesI feel like a parent whose child hasgrown up and left the nest.

Neither of my children haveexpressed a desire to enter thepractice of law. My daughter appearsheaded for a career as a Methodistminister, and my son is likely to dothe same. When I began to realizethat they were not interested inbecoming lawyers, I was a littledisappointed. I would not have theopportunity to dispense sage adviceon the practice of law to childreneager to follow in their father’sfootsteps.

However, I now realize that mylaw practice has left some imprint onmy children. Although they won’tbecome lawyers, they will take themost important element of lawyeringwith them. They will possess a desireto help people like Annie.

For many of us the most fulfill-ing aspect of our practice is minister-ing to the needs of our clients. Theywant our counsel, they want our ear,they want someone to care aboutthem. Maybe that explains why somany ministers began their collegeyears interested in law and why somany lawyers have consideredentering the ministry.

The practice of law can be suchfun when we spend more time listen-ing and counseling with our clients.How I wish that I could disciplinemyself so that I would only take on asmuch work as I enjoy doing.

So many of us are looking forgreater satisfaction in our practice.We think that relocation, financialsuccess or prestige can provide it. Iam beginning to believe that the keyto satisfaction is held in our ownhands. We just need to spend moretime practicing the kind of law weenjoy and less time becoming“successful.” U

For many of us themost fulfilling aspect ofour practice isministering to theneeds of our clients.They want someone tocare about them.

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AN INVITATION TO YOUNG

LAWYERS TO GET INVOLVED

By Cliff Brashier

One of the best programs theState Bar of Georgia offersto lawyers and the public is

its Young Lawyers Division. Itwould take more than every page inthis issue of the Georgia Bar Jour-nal to list the many accomplish-ments and good deeds of the YLDsince its creation on May 31, 1947 atthe State Bar’s Annual Meeting.While my space is limited, I do wantto provide the following briefsummary for your information. Also,I cannot think of a better way fornew lawyers to serve our profession,to help the public, and to enhancethe quality of their own legal ca-reers. We welcome the participationof all young lawyers, and I hope youwill accept this invitation to becomeinvolved.

A Long TraditionThroughout the years, many

YLD leaders have gone on to servetheir profession and the public inother leadership roles. For example,Griffin Bell served as YLD Presidentfrom 1949-50, and later became theAttorney General of the UnitedStates during Jimmy Carter’sadministration.

William Ide of Atlanta served asYLD President from 1974-75, and

later served as President of theAmerican Bar Association from1993-94.

Many YLD Presidents havecontinued their leadership roles bylater serving as State Bar of GeorgiaPresidents (e.g. Robert Brinson,James Elliott, Charles Lester Jr.,Kirk McAlpin, Frank Jones and JohnSammon).

Public ServiceThe YLD has long been consid-

ered the “working arm of the Bar.”Through its committees, YLDmembers participate in variouscommunity service and pro bonoprojects.

Sponsored by the YLD, the“Great Day of Service” is a state-wide effort by Bar members to giveback to their communities by com-pleting much-needed public serviceprojects in communities across thestate.

The Aspiring Youth Committeeworks with middle school students

during the “latch-key” hours of theday, a time when many children areleft unsupervised and often get intotrouble. Committee members helpstudents understand the importanceof a good education. They providetutoring, play out conflict-resolutionscenarios, and in general act asmentors and positive role models.

Five YLD committees sponsorannual mock trial and moot courtcompetitions for high school and lawschool students. The committees relyon hundreds of volunteer attorneys tohelp implement the competitions,giving many students their first tasteof a trial procedure and an overviewof the judicial system. The commit-tees are: High School Mock Trial,Intrastate Moot Court Competition,National Moot Court Competition,William W. Daniel National Invita-tional Mock Trial Competition, andYouth Judicial Program Committee.

Service to New LawyersFor newly-admitted lawyers, the

YLD twice a year sponsors a massswearing-in ceremony to the Courtof Appeals, Supreme Court and theU.S. District Court of the NorthernDistrict of Georgia.

A newly-formed committeecalled the MCLE/Trial CreditAssistance Committee assists newbar admittees with finding courtswhere which they can obtain theirrequired trial experiences.

The YLD has 15 additionalcommittees that focus on substantiveareas of law, while helping newattorneys gain practical knowledgeand develop professional relation-ships with fellow colleagues.

Each committee takes on variousprojects. Some produce publicservice brochures and guidebooks.For example, the Corporate andBanking Committee publishes a

Continued on Page 8

The YLD offers lead-ership opportunities,professionalrelationships, as wellas a fun, friendlyenvironment in whichto get to know otherswith common interests.


Continued from Page 7

brochure entitled “Which LegalEntity is Right for Your Business;”and the Elder Law Committee haspublished a Senior Citizens Hand-book and written two brochures:“Legal Rights of Nursing HomeResidents” and “Selecting a Personal

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South Ga. Mediation Service-new - use border

Care Home.” Other committeessponsor annual events and seminars,like the Legislative AffairsCommittee’s Annual LegislativeBreakfast where lawyer-legislatorsare invited to hear esteemed mem-bers of the executive, judiciary andlegislative branches discuss hot-button topics.

Getting Involved Can BeFun for Young Members

Getting involved with the YoungLawyers Division is a great way foryoung attorneys to participate intheir State Bar organization and theirnew profession. The YLD offersleadership opportunities and profes-sional relationships, as well as a fun,friendly environment in which to getto know others with common inter-ests.

The YLD holds five meetings ayear at various resorts and locationsin the southeast. All young lawyersare invited to attend. Attending onemeeting is a great first step towardgetting involved.

For more information on how toget involved with YLD committees,or for future meeting information,call the YLD office at the State Barof Georgia at (404) 527-8778 or(800) 334-6865. U

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L E G A L A R T I C L E S

OF CLIENTS AND FEES:

Ethical Issues forCriminal Defense

AttorneysBy The Hon. William T. Moore Jr. and Timothy M. O’Brien

Introduction

Just as in any other area of law, the criminaldefense practice contains an infinite number ofethical issues which can emerge without warning.Like angry little bumble bees, these issues cansting you on the posterior when you think you’re

doing nothing wrong by simply bending over to smell apatch of daisies. For this reason, we have decided againstgiving you all a general survey on ethical issues. Were weto do so, we would be doing little else but reciting anever-ending laundry list of items and would have littletime to go into any substantive discussion of any of thoseissues. So, instead of doing that, we will concentrate ourattention on a finite set of ethical issues which can appearwhen a criminal defense attorney first assumes the

responsibility for representing a client in a criminalinvestigation or prosecution.

Issues concerning fee arrangements will be discussed.First, we will discuss one common sense practice ignoredby an alarming number of criminal defense attorneys:reducing the fee arrangement to writing. Secondly, wewill focus upon ethical considerations to be taken intoaccount when establishing a fee for a case.

Reducing the Fee Agreement to WritingThrough his experiences as United States Attorney,

criminal defense attorney, and District Judge, one of thethings that has never ceased to amaze the senior author ofthis article is how many defense attorneys fail to put onpaper the fee agreement reached with their clients. The

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State Bar of Georgia has adopted Canons of Ethics andEthical Considerations (which state the principles thatattorneys are to follow), Directory Rules (which followthe Canons with imperatives to attorney), and has alsoadopted the more simplified Standards of Conduct.Nowhere in these three sets of rules is it stated that acriminal defense attorney must reduce his fee arrange-ment to writing. However, let us review at length EthicalConsideration 2-19. Bear with us, as this is the only timewe will quote any rule or canon for longer than a fewphrases. Ethical Consideration 2-19 states:

As soon as feasible after a lawyer has been employed,it is desirable that he reach a clear agreement withhis client as to the basis of the fee charges to be made.Such a course will not only prevent later misunder-

standing but will also work for good relations be-tween the lawyer and the client. It is usually benefi-cial to reduce to writing the understanding of the par-ties regarding the fee, particularly when it is contin-gent. A lawyer should be mindful that many personswho desire to employ him may have had little or noexperience with fee charges of lawyers, and for thisreason he should explain fully to such persons thereasons for the particular fee arrangement he pro-poses.

As we will briefly discuss later, the phrase pertainingto contingent fees does not apply here as attorneys areprecluded from using them in criminal cases. The Ameri-can Bar Association’s Model Rule of Professional Con-duct 1.5(b), meanwhile, refers to the need for documenta-


tion as follows: “When the lawyer has not regularlyrepresented the client, the basis or rate of the fee shall becommunicated to the client, preferably in writing, beforeor within a reasonable time after commencing the repre-sentation.”

You may be asking yourself: “Why, if there is noexplicit command to memorialize the fee arrangement, isJudge Moore talking about the need to do so in thecontext of a discussion of ethics?” Well, we’ll tell you.There’s an old saying which goes: “Physician, healthyself.” That sayingapplies to all those over-weight, two-pack-a-day,scotch-guzzling doctorswho, because of theirabilities to conquer others’physical problems, believethemselves to be invincibleto medical afflictions. wepropose a new saying whichall lawyers should follow:“Attorney, counsel thyself.”Judges, as well as juries andethical panels, consider itstrange that attorneysroutinely counsel theirclients to document agreements with other parties andthen fail to take their own advice and do the same.Remember, what you are doing with a client is creating acontract. How many times have you, in your private civilpractice or even in a law school contracts class, scratchedyour head and said: “Why didn’t this fool put the agree-ment in writing?” Our simple advice to you is: don’t beone of those fools.

The purpose of this discussion is to give you sometips on how to avoid problems with the Bar or the manytrial and appellate judges throughout this state. There isperhaps nothing more simple and easy to do than put onpaper the fee agreement, have both parties (the attorneyand client) sign the agreement, give a copy to the client,place a copy in the file, and secure the original.

There is no need to draw up some 20-page retainercontract that most criminal defendants would be inca-pable of understanding. We submit that such an agreementis not much better than no agreement at all. Rather, aplain-English engagement letter should be written, signedby the attorney, and then agreed to by the client (asindicated by his signature). This letter should be draftedonly after the terms are discussed between attorney andclient.

Keep in mind that attorneys and clients are adults,with the abilities to consult and consent. You should

discuss frankly with the client the basis of and terms forthe fee. After you have discussed the following items withthe client and are satisfied that the client understands andconsents to the terms, you should incorporate the termsinto the letter. The understanding should include:

1. Identification of the client.2. Identification of the attorney.3. Description of the matter of representation.

Give a simple description as to the criminal case againsthim. If there has been an indictment or case number

already assigned, put that inthere. If the fee for yourrepresentation covers thegrand jury investigation butdoes not include any trial,specifically put that inthere. Also, if your fee doesnot include an appeal, putthat in there. It is importantto err on the side of speci-ficity.

4. Fee charged. Bespecific as to whether thefee covers non-attorney feematters such as investiga-tion, travel, etc. If the fee

does not cover these types of incidental costs, indicatethat the client will be responsible for those costs inaddition to the attorney fee.

5. Billing and payment arrangement. It is, ofcourse, preferable to have the entire retainer paid up front.You should indicate that your duties of representation donot commence until the fee has been paid. If you are inthe unfortunate position of having a client with whom youhave agreed to institute an installment plan, spell out theterms of the plan. Also, spell out the terms for payment ofincidental costs. To cover these costs, you may want torequire that a separate general retainer be put in trust fromwhich you can withdraw as expenses accrue.

6. Provisions on withdrawal from representation.In this regard, refer to Standards of Conduct 22 and 23and Directory Rule 2-110 pertaining to illegal/unethicalcourses of conduct desired by client. You may wish toinclude those terms in the letter in order to put the clienton notice what events would require you to withdraw.This serves the purpose of eliminating surprises as well asgiving your client a primer on what not to expect from hisattorney.

7. Refundable/nonrefundable nature of retainer.State understanding as to whether retainer is refundable oris not. If it is a nonrefundable retainer, state the reasonswhy it is so—namely, that representation may prevent

How many times have you, in yourprivate civil practice or even in alaw school contracts class,scratched your head and said: “Whydidn’t this fool put the agreement inwriting?” Our simple advice to you is:don’t be one of those fools.

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you from taking on other clients in the case or relatedcases.

The engagement letter is a simple thing to draft andexecute and will not only help prevent problems with theclient (and potentially the Bar), it also might help shoulda panel from the Eleventh Circuit see fit to impose theTjoflat Rule1 upon you.

Fee ConsiderationsIn deciding what fee you will charge your client,

there are several considerations which must be taken intoaccount. Among these are the bans on contingency feearrangements and media rights acquisition as well as thegeneral requirement that the fee charged be “reasonable.”

Contingent fee banIt should be known by all who practice criminal law

that attorneys are precluded from charging a criminaldefense client a contingent fee. Throughout the UnitedStates, the varying ethics rules uniformly prohibit thecharging of a contingent fee in a criminal case.2 Thepublic policy reasons behind this ban include the idea thata defense attorney who lives under the fear of not gettingpaid is more likely to commit acts against the interests ofthe administration of justice—for example, suborningperjury—as well as against the interest of the client—forexample, counseling the client to go to trial rather thansign on to a negotiated plea agreement. Essentially, theban has been uniformly enacted in order to preclude anattorney from having any pecuniary interest in the out-come of a criminal case.

Looking quickly at the relevant rules, the ABAStandards for Criminal Justice, Defense Function Stan-dard 4-3.3(f), as well as ABA Model Rule of ProfessionalConduct 1.5(d)(2), prohibit the contingent fee in a crimi-nal case. These are the standards that federal courts oftenfollow, although there is no written policy on this subjectand, doctrinally, the federal courts are adrift as to whatconsolidated rules of conduct they should follow.3 Thejudges in the Southern District of Georgia, and manyothers, often look to the ABA Model Rules, but will alsolook to the state rules. If the truth be known, most federaljudges simply employ something of a “smell test” whilerelying upon the ABA Model Rules, as well as the canonsand rules of the State Bar as guiding authority. This is notunusual or even questionable as no codification of ethicscan preemptively cover every set of ethical questionswhich arise.

In any event, referring back to the ABA consider-ations, you should know that certain fees—though theymay be appear to be contingent on a certain series of

events—are not contingent fees for the purposes of theprohibition. In the commentary section of the ABAStandards for Criminal Justice, Defense Function Stan-dard 4-3.3, the drafters illustrate the difference betweenthat type of contingent fee which is prohibited and thatwhich is not: “An agreement for payment of an additionalfee contingent on acquittal is prohibited. However, anagreement for payment of one amount if the case isdisposed of without trial and a larger amount if it pro-ceeds to trial is not a contingent fee but merely an attemptto relate the fee to the time and service involved.”

Looking now to the rules adopted and promulgatedby the Georgia Bar, Ethical Consideration 2-20 states thatcontingent fees are prohibited largely on the public policygrounds that there is no res (or body of money, as in acivil personal injury suit) from which the fee can bededucted. Reading that provision literally, one wouldassume that the contingent fee prohibition is written forthe lawyer’s protection but, clearly, the underlyingconcerns are geared toward the protection of the public aswell as the client. Directory Rule 2-106(C), meanwhile,follows that statement with a flat prohibition againstcriminal contingent fees.

Despite the simplicity of this prohibition, some trialattorneys could be confused. Indeed, if one were to readThe American Trial Lawyers Code of Conduct publishedby the American Trial Lawyers Association in 1982, oneconceivably could be led astray. Rule 5.6(d) of that Codeexplicitly permits contingent fees in criminal cases. Insupport of that rule, the Association argues that contin-gent fees are needed more in a criminal case than in acivil case for the simple reason that the criminal defen-dant goes to prison if he loses and therefore is obviouslyless able to pay than he would were he acquitted. Further-more, the contingent fee would not impact negatively onthe cause of justice because criminal defense attorneyswould take on a contingent fee in only those cases wherethe defense appears to be particularly strong. Whether ornot you agree with the ATLA arguments as opposed to theABA arguments, keep in mind that, in contrast to theABA Code, the ATLA Code has not been adopted by anyjurisdiction.4 Also, you should take note that ATLA is, inlarge respect, a practice-advocacy organization and,consequently, is more likely to advance positions whichhave not been accepted by those outside of its organiza-tion. If you have read the ATLA Code, our frank advice toyou is consider it as an academic curiosity and positionstatement rather than as a viable ethics code in which youcan take refuge.

We think that this prohibition is an easy one tounderstand. Quite simply, do not draft a contingent feearrangement in a criminal case. As mentioned earlier, you


may create an escalating fee scale which sets varying feesconditioned upon the final stage of litigation withoutviolating the prohibition. But do not do such things asgiving yourself some sort of springboard bonus planbased upon the results youachieve for your client. (Inother words, do not estab-lish a $10,000 fee and theninclude a provision whichgives you a $5,000 reward ifyou get your client off thehook.) The public and theBar are wary of theseagreements and, in nouncertain terms, haveprohibited them as againstpublic policy.

If you will, allow us todigress for a moment tomention briefly how someaspects of federal forfeiturelaws have actually con-verted much of the criminalpractice into a contingencyfee practice. In 1984,Congress enacted theComprehensive Forfeiture Act, which amended the RICOstatute as well as the Continuing Criminal Enterpriseprovisions of the Comprehensive Drug Abuse Preventionand Control Act of 1970. The 1984 changes empoweredthe Government to seize and seek forfeiture of adefendant’s assets that were either derived from profitsfrom the criminal enterprise or were used in furtheranceof the enterprise.

As those of you who practice in federal courts areaware, in 1989, the United States Supreme Court, in thetwin cases of United States v. Monsanto,5 and Caplin &Drysdale, Chartered v. United States,6 declared that theamendments apply to those assets which were used to payattorneys fees. Just think about this for a minute. Inessence, the Court has stated that, when a criminaldefendant’s entire assets are subject to forfeiture, thepayment of his attorney’s fee is contingent upon hisacquittal or, in the event of a guilty verdict, the juryfinding the subject assets not forfeitable. Certainly, this isa contingent fee situation. Consider the following lan-guage from the pen of Justice White, the author of themajority opinion in Caplin & Drysdale: “The forfeiturestatute does not prevent a defendant who has nonforfeit-able assets from retaining any attorney of his choosing.Nor is it necessarily the case that a defendant who pos-sesses nothing but assets the Government seeks to have

forfeited will be prevented from retaining counsel ofchoice. Defendants ... may be able to find lawyers willing torepresent them, hoping that their fees will be paid in theevent of acquittal.”7 If this does not smack of a contingent

fee situation, then we do notknow what does.

Through these twodecisions, the SupremeCourt has stated to allattorneys concerned: “Sureyou might get paid, butonly if you spring yourclient.” This has turned alarge class of criminalforfeiture cases into defacto contingent fee cases.Indeed, the four dissentingjustices in Caplin &Drysdale agreed that themajority opinion mighthave unwittingly created anew class of criminalcontingent fee cases.8 Onecommentator has argued:“In the face of the Court’spronouncements implying

the legitimacy of criminal contingent fees, state ethicscodes and contracts case law seem puny indeed.”9

One can easily see how a client and his attorneymight develop conflicting interests in a situation wherethe Government agrees to drop a few substantive countsin return for the defendant pleading guilty to the forfeiturecount. The client may get a reduced sentence or nosentence at all while his attorney does not get paid. Whatmay be good for the client may not be good for theattorney and the chief concerns behind most major ethicalcanons come into play. If you need further elaboration onthis topic, ask F. Lee Bailey and those North Floridajurists whom he referred to as “backwater judges” and weare sure they will be happy to paint for you a moretextured picture than we could ever hope to.10

Let us move on to something else and conclude bysimply stating that we have mentioned the irony createdby the Supreme Court for your amusement and consider-ation. Despite the Supreme Court’s decisions, de jurecontingency fees are still banned even while de factocontingency fees may have been created.

Media Rights BanThis will not take much space nor should it. It is easy

enough to see that the Ethical Considerations, Directory

One can easily see how a client andhis attorney might developconflicting interests in a situationwhere the Government agrees todrop a few substantive counts inreturn for the defendant pleadingguilty to the forfeiture count. Theclient may get a reduced sentence orno sentence at all while his attorneydoes not get paid.

F E B R U A R Y 1 9 9 9 15

Rules, and Standards of Conduct preclude attorneys fromacquiring interests in the media rights of their clients’stories. Directory Rule 5-104(B) unequivocally prohibitsa defense attorney from acquiring any media rightsinterest in his client’s case prior to the conclusion of “allaspects of the matter.” This prohibition is particularlyimportant in the criminal defense field where, becauseclients are often poor but may have a bestseller story totell, the temptation to bargain for the rights to the story isstrongest.

The media rights ban has been promulgated to keep alawyer’s attention where it should be—on the interests ofthe client. Ethical Consideration 5-4 explains that theacquisition of media rights by the attorney might temptthe attorney “to subordinate the interests of his client tohis own anticipated pecuniary gain. For example, alawyer in a criminal case who obtains from his clienttelevision, radio, motion picture, newspaper, magazine,book, or other publication rights with respect to the casemay be influenced, consciously or unconsciously, to acourse of conduct that will enhance the value of hispublication rights to the prejudice of his clients.”

The prohibition is clear and unambiguous; unless anyof you need to make a quick cellular phone call to yourliterary agent, nothing more needs to be said on thatmatter.

Reasonable Fee RequirementABA Model Code Rule 1.5(a) sets forth the require-

ment that an attorney’s fee must be “reasonable.” Thisrequirement is worded somewhat differently in theGeorgia Bar rules in that Directory Rule 2-106(A) doesnot mandate a “reasonable” fee but, rather, prohibits a“clearly excessive fee.” This different language is essen-tially followed in the ABA Standards for Criminal Justice;Defense Function Standard 4-3.3(c) states that it is“unprofessional conduct for a lawyer to enter into anagreement for, charge, or collect an illegal or clearlyunreasonable fee.” Whether there is any practical differ-ence between the differing language is an issue for thelaw professors to hash out during their coffee breaks.There are some factors, however, which appear to beuniversal when determining the propriety of the feecharged to the client by the attorney. These factors will bediscussed below.

As one commentator has noted:

Setting the fee in a criminal cases that the client canafford to pay, as a practical matter, greatly differsfrom setting the fee in other cases because criminaldefense lawyers often must charge flat fees and get it

in advance. Therefore, in apparently “routine” crimi-nal cases, experience will dictate to the lawyer whatthe reasonable fee will be even at the initial clientinterview. In more complex cases, however, the at-torney must do some preliminary investigation intowhat the case is all about before a reasonable flat feecan be quoted.11

One authority gives the following checklist for anattorney to consider when determining the size of the feeto be charged:1. The time and effort to be required in the case for

effective representation;2. The responsibility assumed by counsel considering the

nature of the case;3. The novelty and difficulty of the questions involved;4. The skill requisite to the proper representation in that

case;5. The likelihood that other employment will be pre-

cluded;6. The fee customarily charged in the locality for similar

services;7. The gravity of the criminal charge;8. The experience, reputation, and ability of the lawyer;9. The capacity of the client to pay the fee.12

All of these factors are important and they are essen-tially reflected in the ABA Model Code, as well as in theGeorgia Bar Directory Rules and the ABA Standards forCriminal Justice. When discussing the fee with the client,it is important for you to identify which of these factorsnecessitate (or justify) your fee; clearly state to yourclient the reasons for the level of your fee. Once thesefactors have been explained and your client understandsthem, it would be to your benefit to include in yourengagement letter the reasons for the fee.

Looking first to factor one. When discussing thisfactor, remember that in many instances, particularly infederal court, criminal defense attorneys are operatingunder the pressure of time. Therefore, if you anticipate adrawn-out case which will drag on for several months oreven years, then the reason for a higher fee will beobvious given the high number of attorney hours likely toresult. If, however, you are in federal court (for example)and have to prepare and try your case within two-and-a-half months from the date of indictment or initial appear-ance, then the time pressures are immense, therebyincreasing the premium charged for the hours to beworked. Explain to your client that his case inevitablywill cut into your own time with family and friends andthat a higher fee must be charged due to the urgency ofhis situation and your 24-hour on-call status. Also, if youare in federal court with a criminal case, then you may


have to juggle or cancel personal plans (such as familyvacations, etc.) due to the long arm of the local federaljudge. While this may not solicit any sympathy from aclient who is facing 20 years to life in the penitentiary,your purpose is not to make him feel sorry for you but tounderstand why he is forking over the money you areasking for.

Factor two simply refers to the magnitude of the caseand the attorney’s responsibility in that case. If your clientis facing a stiff sentence, then a higher fee may be neces-sary due simply to the fact that the stakes are high andyour resulting involvement (to the detriment of the rest ofyour practice) will be that much higher. This sameanalysis applies to factors three and four pertaining to thenovelty/difficulty of the questions involved and the levelof skills required to meet the challenge of the law andfacts. In this instance, you are simply predicting that youwill have to perform more legal research and leg workand, as a consequence, more time will be spent by youthan if this were a simple one-count possession withintent to distribute indictment. Also, you are asserting thatyou possess or will obtain the skill necessary to meet yourclient’s needs and that level of expertise justifies the ratescharged.

In our experience, we have found factor five to be themost pertinent in setting the level of fees. When anattorney agrees to represent a client in a criminal matter,he essentially agrees to not represent anyone else whomight have an adverse interest to his client—in practice,every other person, charged or uncharged, involved in thetransaction at issue. This is simply a business decisionwhich must be made by you as an attorney. Explain toyour client the possibility of other fees in the case andthat, because you are now precluded from accepting thoseother fees, he is the sole source of income you willachieve from the case. Explain how this makes necessarythe charging of fees higher than the normal hourly rate.

Factor six is probably the least important of all thefactors but is still a factor important enough to be consid-ered and explained. Factor seven, meanwhile, is closelyrelated to factor two.

Factor eight essentially repeats the reasons for thepremium fee when you are one of those attorneys with animmense level of expertise in a matter. Also, consider thefact that, if you are a well-respected defense attorney whocasts fear into the hearts of the prosecutor, then you maybe more likely to get a better negotiated plea agreementfor your client simply because the prosecutor does notwant to risk losing a conviction. Be careful, however,when discussing this factor. Do not make any claims thatyou cannot back up because they may come back to hauntyou in either an ethics complaint or malpractice action. If

you are an attorney who is just now getting into thepractice of criminal defense, remember that you are wetbehind the ears and that there are many, many things outin the practice that you learn about only through experi-ence. No one becomes an expert in criminal defense bytaking a seminar in law school or by reading the latestbook by Professor Alan Dershowitz. Remember that and,if you take nothing else away from this portion of thediscussion, remember this: make no false claims as toyour reputation or level of expertise. Err on the side ofhumility.

Finally, factor nine is simple common sense. Do notmake your client rip the gold teeth out of his mother’smouth to pay your fee. While the fee need not be comfort-ably assumable by your client, it should take into consid-eration his worldly circumstances. “If paying the fee takesall the client’s money, then a lower fee might be appropri-ate. If the client is well off, a higher fee would be justi-fied. In addition, this overlaps with the seventh factor onthe gravity of the charge and the second factor on respon-sibility assumed because the wealthy first offender facingsubstantial jail time has a greater financial risk involvedin the case than a habitual offender accustomed to goingto jail with not much to lose even by imprisonment.”13

Of course, these factors are not all-inclusive. Thereare a multitude of other factors which you feel mayrequire a higher fee. Our point is simply this: explain therelevant factors and, where possible, put them into theengagement letter.

Nonrefundable retainer feesMany, if not most, criminal defense attorneys charge

nonrefundable retainer fees in their cases. Recently, thispractice has generated some controversy due in large partto the rabble-rousing of two professors from CardozoLaw School in New York: Lester Brickman and LawrenceA. Cunningham.14

“Ethical rules do not specifically address non-refundable fee agreements. Most ethics committees tohave passed on the question permit this distinction in feeagreements that nonrefundable retainers are permissible ifproperly handled.”15 Georgia is one of these states. If youlook at the State Bar of Georgia Formal Advisory OpinionNo. 91-2 (which can be found in the back of your StateBar of Georgia Directory and Handbook), you can seethat the Bar considers it “okay” to charge nonrefundablefees in criminal cases: “A ‘flat’ or ‘fixed’ fee is onecharged by an attorney to perform a task to completion,for example, to draw a contract, prepare a will, or repre-sent the client in court, as in an uncontested divorce or acriminal case. Such a fee may be paid before or after the

F E B R U A R Y 1 9 9 9 17

task is completed.”16 The Bar contrasts this with aprepaid fee arrangement: “A ‘prepaid fee’ is a fee paid bythe client with the understanding that the attorney willearn the fee as he or she performs the task agreedupon.”17 The Bar advises that “flat fees” may be placedin a practice’s general operating account when paidwhereas “prepaid fees” should be placed in a trustaccount until earned, hour by hour, by the attorney.18

This Advisory Opinion indicates that the GeorgiaBar has no problem with the assessment and immediaterealization of the flat fee incriminal cases. This isgood for the Georgiacriminal law practitioner.The question, however, isnot thoroughly resolvedand there are wolves outthere of which you shouldbe aware.

We want to discussbriefly the contentions ofProfessors Brickman andCunningham. The mainproblem Brickman andCunningham have with the nonrefundable retainer fee isthat it deprives a client of his right to choose an alternatecourse of legal action. Essentially, the imposition of anonrefundable retainer fee deprives a client of his rightto discharge his lawyer, with or without cause, at anytime, without penalty. Brickman and Cunninghampropose that the American Bar Association incorporate anew rule into its Model Rules of Professional Conduct.Specifically, the new rule would state:

Nonrefundable Retainers Prohibited; Advance FeesDeposited to Client Trust Account. When a client(or any other person on behalf of a client) pays alawyer or law firm any sum of money or deliversany other property as payment in advance for speci-fied services to be rendered in a specified matter, nosuch money or property shall be or become the prop-erty of the lawyer or law firm until such time, if any,as it shall have been earned through the renderingof such services. All such money and property shallbe deposited by the lawyer or law firm promptlyupon receipt into a separate trust account mandatedin this jurisdiction for the receipt of client property,and shall be withdrawn only when such portions ofit shall have been earned through the rendering ofsuch services. The lawyer or law firm shall promptlyrefund any unearned money or property to the clientupon the conclusion of the representation. Any ef-

fort, by contract or otherwise, to contravene this Ruleshall be null, void, and unenforceable, and lawyersor law firms involved in making any such effort shallhave violated this Rule.19

In support of their proposition, the professors arguethat “the attorney-client relationship is not an arm’s-length one involving parties bargaining in parity; rather itis a relationship between a fiduciary and a beneficiary inwhich . . . the client reposes trust and confidence in the

lawyer. Accordingly, thelawyer has a built-in advan-tage over his client simplybecause of his professionalstatus.”20

In their North CarolinaLaw Review article,Brickman and Cunninghamcelebrate the fact that theNew York Appellate Divi-sion (and, as it would turnout later, the New YorkCourt of Appeals) adoptedtheir position pertaining to

the ethics of nonrefundable fee agreements. The casediscussed is In re Cooperman.21 Let us give you a quickoverview of the highlights of the Cooperman decisionand then we will discuss how—and if—it applies to youas a Georgia lawyer.

A New York Bar disciplinary proceeding was broughtagainst the attorney, Edward Cooperman: the proceedingwas focused upon the issue of whether “nonrefundablefee” and “minimum fee” retainer agreements were validin criminal cases (or in any case for that matter).22 Theattorney was a general practitioner who also claimed tospecialize in criminal law; the disciplinary committee ofthe New York Bar sent him a letter in September 1985warning him not to charge or accept nonrefundableretainers because those retainers were unethical.23 De-spite this warning, the attorney subsequently entered intoseveral nonrefundable fee agreements.24

The agreements contained the following provision(although the fees varied): “‘My minimum fee for appear-ing for you in this matter is fifteen thousand ($15,000)dollars. This fee is not refundable for any reason whatso-ever once we file a notice of appearance on your be-half.”25 This matter was brought to the Bar’s attentionwhen one of the clients fired the attorney at a very earlystage in the proceedings and the attorney refused torefund any portion of the fee to the client.26

The New York Appellate Division held that thenonrefundable fee violated the rules of ethics: “The words

Do not make your client rip the goldteeth out of his mother’s mouth topay your fee. While the fee need notbe comfortably assumable by yourclient, it should take into consid-eration his worldly circumstances.


‘nonrefundable fee’ are imbued with an absolutenesswhich conflicts with DR 2-110(A)(3), which provides thata lawyer who withdraws from employment shall refundpromptly any part of a fee paid in advance that has notbeen earned. We find the use of these retainer agreementsto be unethical and unconscionable in spite of the inherentright of attorneys to enter into contracts for their ser-vices.”27 In so ruling, the court seemed primarily con-cerned with the fact that such an agreement impermissi-bly fettered a client’s ability to seek alternate legalrepresentation withoutpenalty. The court stated,“Since an attorney’s fee isnever truly nonrefundableuntil it is earned, the use ofthis term, which by defini-tion allows an attorney tokeep an advance paymentirrespective of whether theservices contemplated arerendered, is misleading,interferes with a client’sright to discharge anattorney, and attempts tolimit an attorney’s duty torefund promptly, on dis-charge, all those fees notyet earned.”28

You might say: “Well, Judge Moore, you just told usthat flat fee arrangements are fine in Georgia so what isthe purpose of discussing Cooperman and the academicarguments?” The answer is this: the ground has beenshaken and to prevent it from opening into an abyss inGeorgia the burden is upon you to act ethically when itcomes to these nonrefundable fees, particularly when aclient fires you.

In our opinion, it is pretty clear that, though you maytell the client the fee is nonrefundable and though theclient may agree to that facet of the engagement letter,public policy is strongly leaning towards requiringattorneys who are fired to refund those portions of the“unearned” fees. This may never apply to you. You maysurvive your whole legal career without having a clientfire you. But, considering that it might happen to anyGeorgia defense lawyer at any time for any reason, wesuggest that you take simple steps to protect yourselffrom the client and the ethics panel.

Once you have written the engagement letter, youshould record your hours with the same exacting scrutinyas if you were handling a civil case for a bank. Mostcriminal defense attorneys do not do this. They take theattitude that they charge a simple flat fee which renders

unnecessary the recording of billable hours. As will beborne out below, the recording of hours is, for yourpurposes, a safety measure and is easy enough to do.

Despite the Advisory Opinion mentioned previously,State Bar of Georgia Standard of Conduct 23 still appliesto criminal attorneys. That standard states: “A lawyer whowithdraws from employment shall refund promptly anypart of a fee paid in advance that has not been earned.”Standard of Conduct 21 shows that the term “withdrawsfrom employment” not only refers to the voluntary act of

the attorney, but also to theinvoluntary withdrawalafter his discharge by theclient.29 Therefore, if youare fired by a client, youmight anticipate that he willcome back to you lookingfor some refund of his fee.This is the purpose that therecording of hours serves.In the event that a clientpersists in seeking a refundafter firing you during apreliminary stage of therepresentation, the advis-able thing would be to holdon to a quantum meruit feeand return the remainder to

the client.Just as in a civil case, record every minute of time

you work on the case and describe what work was doneon the case. This way, if a client comes back to youseeking a refund after firing you, you can figure out whathourly fee you charged and for how many hours. Keep inmind that you might be justified in charging a premiumhourly fee due to the nine factors discussed earlier. Thenyou tender a refund to your client. If he complains,explain to him the work performed, show him the billingrecords and the method of computing the hourly rate, and,hopefully, that will be the end of it. Should he complainto the Bar, then at the very least you will have documen-tation of your work and, with the engagement letter,documentation of the reasons for the higher than normalhourly fee (particularly when it comes to the inability torepresent other individuals in the case).

ConclusionWe all have to keep in mind that, in this day and age,

attorneys, as a profession, are subject to constant criticismand public reprobation. It is our impression that criminaldefense attorneys are particularly singled out as targets of

Do not do such things as givingyourself some sort of springboardbonus plan based upon the resultsyou achieve for your client. In otherwords, do not establish a $10,000fee and then include a provisionwhich gives you a $5,000 reward ifyou get your client off the hook.

F E B R U A R Y 1 9 9 9 19

blame for what’s wrong with America and are describedas destroyers of the national community. As criminaldefense attorneys, we know that these criticisms areunfounded. We know that criminal defense attorneys arethe shield between the accused citizen and a Governmentwhich is capable of abuses of powers as well as innocentmistakes. We know that criminal defense attorneys are theessential fibers which hold together our constitutionalfabric. But the majority of most Americans do not see usthis way. Therefore, criminal defense attorneys have to beparticularly careful when it comes to ethical matters orelse they will simply contribute to the unfavorableimpression held by the public.

Simple measures can prevent complicated problems.Talk with your potential client, not just at him, andcounsel him as to the reason for your proposed fee. Oncehe agrees to the fee, put the agreement in writing andhave the client sign on to it. Keep in mind that you cannotcharge a fee which gives you an extraordinary pecuniaryinterest in the outcome of your client’s case; contingentfees and fees comprised of the assignment of media rightsare prohibited. Remember that the nonrefundable retainerfee is completely legal and ethical in Georgia in criminalcases but that you, as attorneys, should take steps to notabuse that privilege. Perhaps the easiest step to take is tokeep time records of your criminal cases; show yourclient and the Bar that you have “earned” your fee andyou will keep your fee as well as your reputation. U

This article is taken from written materials and a speech delivered by the

Hon. William T. Moore Jr. to the Georgia Association of Criminal Defense

Lawyers. Judge Moore was sworn-in as U.S. District

Judge, Southern District of Georgia, on October 31, 1994.

He is a graduate of Georgia Military College and the

University of Georgia School of Law. Prior to his ap-

pointment to the bench, Judge Moore was a partner in

the Savannah law firm of Oliver Maner & Gray LLP

where he concentrated in federal criminal defense and federal and state

trial practice. From 1977 through 1981, he served as the U.S. Attorney for

the Southern District of Georgia.

Timothy M. O’Brien is an associate with the Savannah law firm of Oliver

Maner & Gray LLP. He is an honors graduate of the

University of Virginia and the University of Florida

College of Law, and is a member of the State Bars of

Georgia and Florida. From 1995 to 1997, Mr. O’Brien

served as law clerk to Judge Moore. Currently, he prac-

tices in the firm’s litigation section handling federal

criminal defense and federal civil litigation.

Endnotes1. The Tjoflat Rule is that rule, passed during the Chief Judge-

ship of Gerald Tjoflat, through which the United States Courtof Appeals for the Eleventh Circuit has essentially stated thatretained counsel are presumptively required to represent theirclients during any appeal from the final judgment of convic-tion and/or sentence imposed. The Tjoflat Rule presumes thata flat fee charged by a criminal defense lawyer is sufficient toensure that lawyer’s representation of his client on appeal.

2. See JOHN WESLEY HALL , PROFESSIONAL RESPONSIBILITY OF THE

CRIMINAL DEFENSE LAWYER 166 (2nd ed. 1996).3. Bruce A. Green, Whose Rules of Professional Conduct

Should Govern Lawyers in Federal Court and How Shouldthe Rules Be Created?, 64 GEO. WASH. L. REV. 461, 463-64(1996).

4. Peter Lushing, The Fall and Rise of the Criminal ContingentFee, 82 J. CRIM. L. & CRIMINOLOGY 498, 513 (1991).

5. 491 U.S. 600 (1989).6. 491 U.S. 617 (1989).7. Id. at 625 (emphasis added).8. Id. at 649 (Blackmun, J., dissenting.)9. Lushing, supra note 4, at 539.10. For a well-written article discussing how to avoid being cast

into such an undesirable position, see Mark C. Hansen, Tak-ing Fees: A Primer on Attorneys’ Fee Forfeitures, 19 No. 2LITIGATION 17 (1993).

11. Hall, supra note 2, at 153.12. Id. at 155-56.13. Id. at 156 n.20.14. See Lester A. Brickman & Lawrence A. Cunningham, Nonre-

fundable Retainers Revisited, 72 N.C. L. REV. 1 (1993); Lest-er A. Brickman, The Advance Fee Payment Dilemma: ShouldPayments Be Deposited to the Client Trust Account or to theGeneral Office Account?, 10 CARDOZO L. REV. 647 (1988);Lester A. Brickman & Lawrence A. Cunningham, Non-re-fundable Retainers: Impermissible under Fiduciary, Statutoryand Contract Law, 57 FORDHAM L. REV. 149 (1988).

15. Hall, supra note 2, at 163.16. State Bar of Ga. Formal Advisory Op. No. 91-2.17. Id.18. Id.19. Brickman & Cunningham, Nonrefundable Retainers Revisit-

ed, supra note 14, at 39-40.20. Id. at 10-11.21. 591 N.Y.S.2d 855 (N.Y. App. Div. 1993), aff ’d, 611 N.Y.S.2d

465 (N.Y. 1994).22. Id. at 856.23. Id. at 859.24. Id.25. Id. at 856.26. See In re Cooperman, 611 N.Y.S.2d at 470-71.27. In re Cooperman, 591 N.Y.S.2d at 857.28. Id.29. See In re Collins, 246 Ga. 325, 326 (1980).


A PRODUCE DEBTOR’S NIGHTMARE;A PRODUCE CREDITOR’S DREAM

PerishableAgricultural

Commodities ActBy D. Richard Jones III and Greg B. Walling


I. Overview

If a Produce Debtor does not promptly pay theProduce Creditor, there are powerful weaponsavailable to the unpaid Produce Creditor: Thefederal Perishable Agricultural Commodities Act(PACA)1 and its state counterpart, Georgia’s “mini-

PACA.”2 PACA establishes a floating trust over theProduce Debtor’s inventories, receivables, and cash forthe benefit of unpaid creditors who sold produce to theProduce Debtor.3 If the requirements of PACA are met bythe unpaid seller of produce, PACA is a powerful weaponto collect the sums due from the Produce Debtor. SincePACA establishes a trust, the assets of the trust are not

property of the bankruptcy estate. The claims of PACACreditors are superior to claims of secured lenders.4 If aPACA Debtor makes payment from the trust assets toother creditors who have notice of a breach of the PACAtrust, then the PACA Creditor may trace the trust proceedsand collect it from third parties.5 The interest of PACAbeneficiaries trumps that of nearly every other creditor.6

II. PACA: The Federal ActCongress, in passing the 1984 Amendments to PACA

that established the floating trust, recognized the uniqueflow of commerce of agricultural products and its impor-tance to the survival of the nation’s food distribution

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F E B R U A R Y 1 9 9 9 21

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system.7 If a seller’s invoice for perishable agriculturalcommodities is not promptly paid, the seller in turncannot make payment to the persons from whom itpurchased the produce - either another broker or dealer inagricultural commodities or the farmer himself. If it werenot for the special non-segregated trust created by the1984 Amendments to PACA, these unpaid dealers andfarmers would have only an unsecured claim against thePACA Debtor and would not have any pre-judgmentrecourse against the PACA Debtor’s remaining perish-able agricultural commodities, cash and receivables.

It must be remembered that PACA was not enactedto protect those in the Debtor’s shoes, but rather toprevent the chaos and disruption in the flow of per-ishable agricultural commodities sure to result froman industry-wide proliferation of unpaid obligations.While in isolation this may seem a harsh course tofollow, in the macroeconomic sense PACA serves toensure continuity of payment and therefore survivalof the industry. Congress has plainly decided that itwould be less disastrous to risk the liquidation of asingle purchaser than to threaten the entire produc-tion chain with insolvency.8

PACA is concerned with “perishable agriculturalcommodities,” defined in the Act to be fresh fruits andfresh vegetables of every kind and character, whether ornot frozen or packed in ice.9 PACA protects unpaidsuppliers and sellers who sell perishable agriculturalcommodities in interstate or foreign commerce to com-mission merchants,10 dealers11 or brokers. 12 A transactionis considered to be in interstate commerce if the com-modity is part of that current of commerce usual in thetrade in that commodity whereby such commodity and/orthe products of such commodity are sent from one statewith the expectation that they will end their transit, afterpurchase, in another.13

The heart of PACA is the provision that perishableagricultural commodities received by a commissionmerchant, dealer or broker in all transactions, and allinventories of food or the products derived from perish-able agricultural commodities, and any receivables orproceeds from the sale of such commodities or products,shall be held by the commission merchant, dealer orbroker in trust for the benefit of all unpaid suppliers orsellers of such commodities or agents involved in thetransaction until full payment has been received by theunpaid suppliers, sellers or agents.14

Trust assets are to be preserved by the ProduceDebtor as a nonsegregated “floating” trust. This unusual“floating” characteristic applies to all of the Produce

Debtor’s produce-related inventory and proceeds thereof,regardless of which produce seller is the source of theinventory.15 The burden is on the Produce Debtor todetermine which assets, if any, are not subject to thetrust.16 Commingling of trust assets is contemplated.17

A. Technical RequirementsThe Act specifies several technical requirements that

must be carefully satisfied by the unpaid seller whodesires to obtain the benefits of the statutory trust. Theunpaid supplier, seller or agent will lose the benefits ofthe trust unless such person has given written notice ofintent to preserve the benefits of the trust to the commis-sion merchant, dealer or broker within thirty days (i) afterexpiration of time prescribed by which payment must bemade, as set in regulations issued by the Secretary ofAgriculture, or (ii) after expiration of such other time bywhich payment must be made, as the parties have ex-pressly agreed to in writing before entering into thetransaction.18 The regulations define prompt payment tobe ten days after the day on which the produce is acceptedby the PACA Debtor.19 Accordingly, the unpaid sellerordinarily will lose the benefits of the trust unless hegives written notice of intent to preserve trust assetswithin thirty days following the expiration of ten daysafter the produce is accepted.

The parties may agree in writing for prompt paymentto be longer than ten days, but the seller cannot qualifyfor coverage under the trust if the agreement allowspayment more than thirty days after the buyer’s receiptand acceptance of the produce.20 When the parties ex-pressly agree to a payment time different from thatestablished by the regulations, a copy of the agreementmust be filed in the records of each party in the transac-tion and the terms of payment must be disclosed oninvoices, accounting and other documents relating to thetransaction.21

The written notice of intent to preserve trust benefitsshould set forth information in sufficient detail to identifythe transaction subject to the trust.22 The regulationsspecify that the notice must be in writing, and mustinclude the statement that it is a notice of intent to pre-serve trust benefits, and must include information whichestablishes for each shipment: (i) the name and address ofthe trust beneficiary, seller-supplier, commission mer-chant, or agent and the debtor, as applicable; (ii) the dateof the transaction, commodity, contract terms, invoice,price and the date payment was due; (iii) the date ofreceipt of notice that a payment instrument has beendishonored (if appropriate); and (iv) the amount past dueand unpaid.23

F E B R U A R Y 1 9 9 9 23

Courts tend to construe strictly the technical require-ments of PACA. If the written notice of intent to preservebenefits is not sent to the Produce Debtor, the ProduceCreditor will lose the benefits of the trust.24 Invoices ornotices addressed to the individual principal of thecorporate debtor without identifying the corporate debtor,have been held to be insufficient under PACA.25

In 1995, Congress amended PACA to provide for anadditional method forunpaid PACA Creditors topreserve their trust claimswithout having to file awritten notice of intent topreserve trust assets.However, the 1995 PACAamendment only applies toPACA Creditors who arelicensed under PACA.26 Anunpaid PACA licensee mayuse ordinary and usualbilling or invoice statementsto provide notice of thelicensee’s intent to preservethe trust. The bill or invoicemust include (i) the pay-ment time period if it isdifferent from that estab-lished by the regulations,(ii) the terms of payment,and (iii) the followingstatement:

The perishable agricultural commodities listed on thisinvoice are sold subject to statutory trust authorizedby Section 5(c) of the Perishable Agricultural Com-modities Act, 1930 (7 U.S.C. Sec. 499e(c)). The sellerof these commodities retains a trust claim over thesecommodities, all inventories of food or other prod-ucts derived from these commodities, and any receiv-ables or proceeds from the sale of these commodi-ties until full payment is received.27

B. RemediesThe Federal district courts are vested with jurisdiction

specifically to entertain actions by trust beneficiaries toenforce payment from the trust.28 The district courts havejurisdiction to entertain injunctive actions by unpaidbeneficiaries.29 An unpaid PACA Creditor has severalweapons at his disposal in enforcing the remedies inPACA.

Upon showing that the trust is being dissipated orthreatened with dissipation,30 the court should require the

PACA Debtor to escrow its proceeds from produce sales,identify its receivables, inventory and assets, and thenseparate and maintain produce-related assets as the PACAtrust for the benefit of all unpaid suppliers having a bonafide claim.31 The court may prevent further dissipation oftrust assets and set up mechanisms to conserve the assetsneeded to satisfy the trust creditors.32

Often, an unpaid seller of perishable agriculturalcommodities will find thatfew others have satisfiedthe technical requirementsof the Act. Therefore, aPACA Creditor who hassatisfied the technicalrequirements and whopromptly files suit infederal district court will bein a better position to bepaid in full out of the trustassets, prior to payments tosecured creditors, unse-cured creditors or bank-ruptcy creditors. If, how-ever, there are multiplePACA creditors and thePACA trust assets areinsufficient to satisfy all oftheir claims, the PACAtrust assets are distributedon a pro rata basis to all

beneficiaries who protect their rights to trust benefits.33

If the PACA Debtor files bankruptcy to stay a suit infederal district court, some bankruptcy courts havegranted the creditor’s motion for withdrawal, deferring tothe action in the federal district court.34 The automaticstay in bankruptcy may be lifted to allow claims againstthe PACA trust assets to continue in federal district court,since the trust assets are not property of the bankruptcyestate.35 Other courts prefer for the bankruptcy courts tohave jurisdiction over the collection of PACA assets andadministration of payments to PACA Creditors.36 In eithercase, the trust proceeds are separate from a PACADebtor’s bankruptcy estate.37 A PACA trust beneficiary isentitled to claim trust property even ahead of creditorsholding security interests in the property.38

A PACA Debtor may have transferred trust assets tothird parties. If that is the case, another weapon availableto the unpaid PACA Creditor is the tracing of trust assetsinto the hands of third parties. Transferee liability forreceiving assets subject to the PACA trust rests on tradi-tional trust law and depends upon whether the transfereereceived the trust assets for value and without notice of

Congress recognized the unique flowof commerce of agriculturalproducts and its importance to thesurvival of the nation’s fooddistribution system. If a seller’sinvoice for perishable agriculturalcommodities is not promptly paid,the seller cannot make payment tothe persons from whom it purchasedthe produce.


breach of trust.39 Lenders with actual or constructiveknowledge of a PACA trust must refund any monies theyreceive in violation of the trust.40 Accordingly, if anunpaid PACA Creditor learns, in discovery or otherwise,that trust assets have been conveyed to a third party inviolation of the trust, the third party may also be subjectto suit brought by the unpaid PACA Creditor to recoverthe trust assets.

A final weapon of the PACA Creditor is the imposi-tion of personal liability onthe managing agents,officers and directors of acorporate PACA Debtor. Thecourts that have imposedpersonal liability on acorporate officer rely on thetrust principal that anindividual who is in aposition to control the assetsof the PACA statutory trustmay be personally liable forbreach of fiduciary duty. The PACA trust imposes liabilityon the trustee, whether a corporation or a controllingperson of the corporation, who uses trust assets for anypurpose other than repayment of the supplier.41 Theimposition of personal liability of the corporation’sofficers or directors is a powerful weapon even if thecorporate officer or director files a Chapter 7 bankruptcy,seeking a discharge of liability. The Bankruptcy Codeprovides an exception to discharge for fraud or defalca-tion while acting in a fiduciary capacity, embezzlement orlarceny.42

II. Georgia’s “Mini-PACA”Georgia’s “mini-PACA”43 may apply to intrastate

transactions.Mini-PACA protects sellers of fruits, vegetables, eggs

and pecans, but it does not apply to dairy products,cotton, tobacco, grains and other basic farm crops.44 Therequirements of the mini-PACA apply to dealers in theseagricultural products covered by the Act.45

The Georgia Act makes it unlawful for a dealer inagricultural products to engage in business in Georgiawithout a state license issued by the Commissioner ofAgriculture.46 Before a license is issued, the Commis-sioner is required to receive a surety bond of at least$1,000; the Commissioner may require a greater amount,not exceeding the maximum amount of business done orestimated to be done in any month by the applicant. Thebond is conditioned to secure the faithful accounting forand payment to producers of all proceeds of all agricul-

tural commodities handled by the dealer.47

The Georgia Act provides that the dealer in agricul-tural products must make prompt payment for agriculturalproducts purchased in Georgia. Prompt payment isdefined to be payment twenty days following delivery,unless explicitly stated otherwise in a written contractagreed to by the producer and dealer.48

Mini-PACA attempts to prevent disputes as to iden-tity, quantity, quality or condition of produce delivered by

the producer to the dealer.The Georgia Act providesthat, at the time of deliveryof the agricultural productsto the dealer, the dealer andproducer shall jointly issuea Certificate of Receipt andQuality to the producer orthe producer’s agent unlessexplicitly stated otherwisein the written contract. TheCertificate should at the

least contain information regarding the: (1) name andaddress of the dealer in agricultural products; (2) nameand address of the producer; (3) delivery date and time ofreceipt; (4) description of the product as to identity,quantity, quality and condition and grade of the products;(5) price per unit; and (6) terms of the transaction.49

Information contained in the Certificate of Receipt andQuality pertaining to quality, quantity and price is presumedto be satisfied unless the agricultural product is inspectedand a certificate stating the product is in a different conditionis issued by an inspector within 48 hours of delivery of theagricultural product to the dealer.50

When a dealer to whom produce has been shippedfinds the produce to be in a spoiled, damaged, unmarket-able or unsatisfactory condition, the dealer must have theproduce examined by an inspector assigned by theCommissioner. The inspector executes and delivers acertificate to the applicant, with a copy to the shipper,stating the day, the time, the place of inspection and thecondition of the produce.51

If the dealer of agricultural products fails to makeprompt payment within 20 days of receipt of the agriculturalproducts, fails to have the Certificate of Receipt and Qualityissued where products are delivered to the dealer, or fails tohave an inspection conducted if the produce is spoiled,damaged or unmarketable where products are shipped to thedealer, the dealer is in violation of mini-PACA.52 Any personclaiming damage from a breach of the conditions of adealer’s bond may enter a complaint to the Commissionerfor investigation and hearing and, ultimately, for action onthe bond.53 The Commissioner also has the power to

Counsel for an unpaid seller ofperishable agricultural commoditieswho has satisfied the requirementsof PACA has powerful weapons toensure prompt and full payment.

F E B R U A R Y 1 9 9 9 25

Endnotessuspend or revoke the license of the dealer on certaingrounds, such as failure to account promptly and properly orto make settlements with the producer.54

The Georgia Act does not apply to farmers or groupsof farmers in the sale of agricultural products grown bythemselves, persons who paid cash at the time of thepurchase of agricultural products, or holders of food saleestablishment licenses issued pursuant to the GeorgiaFood Act.55

III. SummaryCounsel for buyers and sellers of produce should be

aware of the federal PACA56 and Georgia’s mini-PACA.Counsel for an unpaid seller of perishable agriculturalcommodities in interstate or foreign commerce who hassatisfied the technical requirements of PACA has powerfulweapons to ensure prompt and full payment. The primaryweapon is suit in federal district court to implement thePACA trust for the benefit of unpaid PACA sellers. Further,if a third party receives PACA trust assets in breach of andwith notice of the trust, the unpaid PACA seller can file suitagainst the third party to trace the PACA trust assets. If thePACA Debtor files bankruptcy, the PACA trust assets,whether administered in federal district court or in bank-ruptcy court, are not property of the bankruptcy estate.Courts impose personal liability on the managing officersfor breach of their corporate fiduciary duty, which may notbe dischargeable in bankruptcy.

Georgia’s mini-PACA provides a powerful remedy inintrastate transactions in agricultural products if the dealerfails to meet its obligation under the Act. Upon complaintof the unpaid seller, the Commissioner of Agriculture,after investigation and hearing, may pursue action on thebond or, in certain cases, the Commissioner may revokethe license of the dealer in agricultural products. U

D. Richard Jones III is a trial lawyer. He was born and

raised, and lives and works in Atlanta. He received his

Bachelor of Arts degree from the University of Virginia

in 1974 and his law degree, Order of the Coif, from

Emory University Law School in 1978. His diverse trial

practice includes wrongful injury and death, malprac-

tice, employment law, contract and PACA cases.

Greg B. Walling is a partner of Jones & Walling P.C.

in Sandy Springs, concentrating in commercial real

estate, wills and estates, and litigation. He received

his B.A. from Mercer University in 1982 and his J.D.,

cum laude, from the Walter F. George School of Law at

Mercer University in 1985.

1. 7 U.S.C. § 499a et seq (1994).

2. Dealers in Agricultural Products Act, O.C.G.A. § 2-9-1, etseq.

3. 7 U.S.C. § 499e(c)(2).

4. C.H. Robinson Co. v. B.H. Produce Co., 723 F. Supp. 785,791 (N.D. Ga. 1989), aff ’d on other grounds, 952 F.2d 1311(11th Cir. 1992).

5. A creditor receiving payment of PACA assets must show thatany trust property received was transferred “for value” and“without notice of breach of trust.” C.H. Robinson Co., 952F.2d at 1314.

6. Continental Fruit Co. v. Thomas J. Gatziolis & Co., 774 F.Supp. 449, 453-454 (N.D. Ill. 1991).

7. Congress intended to eliminate the burden of commerce andto create the special PACA non-segregated floating trust,which would be enforced over the interests of lenders, se-cured creditors, and unsecured creditors in bankruptcy. See InRe Fresh Approach, Inc., 51 B.R. 412, 422 (Bankr. N.D. Tex.1985); see also 7 U.S.C. § 499e(c)(1).

8. In Re Fresh Approach, 51 B.R. at 420.

9. 7 U.S.C. § 499a(b)(4).

10. Defined in id. § 499a(b)(5).



13. Id. § 499a(b)(8).

14. Id. § 499e(c)(2).

15. In re Fresh Approach, 51 B.R. at 422.

16. Id at 421.

17. 7 C.F.R. § 46.46(b).

18. 7 U.S.C. § 499e(c)(3).

19. 7 C.F.R. §§ 46.46(e) & 46.2(aa)(5).

20. Id. § 46.46(f)(2)(ii), (e)(2).

21. 7 U.S.C. § 499e(c)(3).

22. Id.

23. 7 C.F.R. § 46.46(f)(1).

24. In re Milton Poulos, Inc., 947 F.2d 1351 (9th Cir. 1991).

25. In re John De Francesco & Sons, 114 B.R. 335 (Bankr. D.Mass. 1990).

26. Licenses, in any event, are required for commission mer-chants, dealers and brokers. 7 U.S.C. § 499c(a).

27. Id. § 499e(c)(4).

28. Id. § 499e(c)(5).

29. Frio Ice, S.A. v. Sunfruit, Inc., 918 F.2d 154 (11th Cir. 1990).

30. “Dissipation” means any act or failure to act which couldresult in the diversion of trust assets or which could prejudiceor impair the ability of unpaid sellers to recover money owedin connection with produce transactions. 7 C.F.R. §46.46(a)(2).

31. Frio Ice, 918 F.2d at 159.

Continued on Page 61


You have never been on welfare? No oneyou know receives welfare? Welfarereform means little or nothing to you. Butdo you pay child support? Or receive childsupport? Or represent someone in a legal

action involving child support? Are you an employer? Doyou do business with a bank? insurance company? creditcompany or a utility company in America? If you dobusiness or own property or have a bank account inAmerica, then welfare reform touches you. It reachesdeep into every business and into many employee’spocketbooks. Half of all marriages end in divorce. Mostdivorces involve children and child support.

The Personal Responsibility and Work OpportunityReconciliation Act of 1996 (PRWORA)1 reformedwelfare. Welfare ended as an entitlement. States createdwith block grant money new temporary assistanceprograms to replace welfare. Now, many welfare recipi-


Is There a NationalChild Support Center

In Your Future?By Robert Swain

ents must work or lose benefits. But the law which freedwelfare reform from federal red tape, created new federalmandates for child support enforcement programs.

All states, including Puerto Rico, the Virgin Islands,Guam, and the District of Columbia operate child supportenforcement programs under federal law, title IVD of theSocial Security Act. PRWORA made changes to the U.S.Code that affect businesses and workers in America. The1996 federal law among other things requires:w the creation of a national registry of new hires;w the enactment by states of nation-wide wage withhold-

ing laws;w new state laws for bank account matching of delin-

quent payors;w the creation of a national registry of support orders;

andw the creation of “state disbursement units” for wage

withholding.

F E B R U A R Y 1 9 9 9 27

National New Hire Reporting2

All employers, as defined by IRS must report newhires or re-hires to each state’s child support registry.3 InGeorgia these reports are sent to the Department ofAdministrate Services. DOAS collects the data andcreates a state “new hire” data base. All states mustprovide copies of these data bases to thefederal Office of Child SupportEnforcement. The composite of all theemployer “new hire” reports from allthe states is the “national new hiredata base.4 State child support agen-cies use the state and national “newhire” data bases to find peoplewho owe or may owechild support.Once an absentparent is found,the state agencyhas two businessdays to send awage withholdingorder to theemployer5 orinitiate otheradministrative or legalactions to obtain an orderfor support or enforce an existingorder.

National Wage WithholdingAll states have enacted the Uniform Interstate Family

Support Act (UIFSA).6 One part of this Act requires theinterstate enforcement of child support orders by wagewithholding. Georgia did this during the 1997 legislativesession, effective January 1, 1998.7 The enactment ofUIFSA effectively repeals the venerable Uniform Recip-rocal Enforcement Act (URESA).8 One part of UIFSArequires the interstate enforcement of child support ordersby wage withholding.9 Under this provision a state childsupport agent or private attorney can send a wage with-holding order to an employer in Omaha, Nebraska. TheNebraska employer must honor the Georgia order bydeducting the amount stated in the order from theemployee’s pay check. The employer must send themoney to the state issuing the order, Georgia in thisexample, where the State Disbursement Unit will process(beginning April 1, 1999) the money for distribution tothe family. The employee can fight the wage withholdingbut the employer cannot.10 The federal consumer protec-

tion law limits the amount that can be withheld; generally,the limit is set at 50% of the employee’s net pay aftertaxes.11 The employer must send the child supportdeduction to Georgia which distributes the money inaccordance with federal law to the family.

Bank Account MatchingStates must enact laws that allow for the

state child support agency to matchdelinquent accounts with bankaccounts - savings, checking andbrokerage accounts.12 This law alsoapplies to accounts and funds heldby credit unions, stock brokers, andinsurance policy issuers.13 Once an

account is found belongingto a delinquentobligor, the CSEagency can admin-istratively seize theaccount.14 Theaccount holder canappeal the seizureand receive ahearing. But whilewaiting for ahearing, the money

in the account is frozen.If there is no appeal, the state

agency takes up to the amount of the child support owedfrom the account.15 The same process works to find andseize the cash value of an insurance policy or the moneyin a credit bureau or money market account.

A 1998 amendment to PRWORA authorizes thefederal parent locator service (FPLS) to establish or assiststates in establishing a clearinghouse for multi-statefinancial institutions.16 Multi-state financial institutionswill be able to submit “account” data to a clearinghouserather than to each state in which it does business. Com-puter matches, (hits) obtained from the financial institu-tions then will be sent to each state for enforcementactions including the seizure of accounts. This clearing-house operation will enable states to search for accountswithout regard to state boundaries. Financial institutionswill benefit by the reduction of the costs in terms of timeand money associated with requests from multiple statesfor the data matching of accounts. Logically, this couldlead to a computer matching program of national finan-cial data against a national registry of all support orders.The federal law anticipates this by requiring the creationof a national case registry.


National Case RegistryYou should not be surprised to learn that states are

required to create a registry of all support orders.17 If youget a divorce and child support is ordered after October 1,1998, this order must be included in the state registry.Any order that is modified after October 1, 1998 also willbe added to the registry of orders. This registry willrecord all payments and legal actions taken for eachregistered order. All of this information will be sent byeach state to a National Case Registry.18 To make thisdream (or nightmare to some) a reality, eventually allchild support payments must be matched to this nationalcase registry. This means that there must be a centralpoint of accountability for all child support payments.

The State Disbursement UnitStates must establish a single collection point in each

state for all wage withholding payments from employ-ers.19 Since January 1, 1994, federal and state law requireswage withholding as part of virtually all orders for childsupport.20 Collectively these state collection centers willprocess all of the employer deducted child supportpayments in the nation. To further centralize the collec-tions in each state, the federal government wants to endthe local payment of support to CSE agencies and thecourts. The centralization and re-direction of paymentsstarted in many states October 1, 1998. By October 1,1999, courts and child support receivers, assuming statelaw is enacted pursuant to the federal mandate, will nolonger process income deduction payments. Even incomededuction payments between private parties paid by theemployer directly to a family must be re-directed to theSDU. This mandate ostensibly will make the processingof wage withheld support easier for employers. Onecheck, one list, sent to one place in each state for process-ing. This payment information will eventually becomepart of the National Case Registry.

ConclusionMost of the money needed to pay child support is in

the hands of employers and financial institutions. Peoplegrudgingly accept payroll deductions. Employers areefficient tax collectors. Employers collect a lot of childsupport. In Georgia, 70% of the more than $335 millionin child support collected by the state in State Fiscal Year1998 came from employer deductions. The remaindercame from tax offset programs and direct payments fromobligors as the result of court or administrate actions. Theamount of support collected by employers will continue

to grow as long as it is relatively easy for employers tocomply with the mandates. And computers make compli-ance by employers relatively painless.

In the soon-to-be twenty-first century world, stateenforcement agencies and private attorneys will stillperform the front-end work; i.e., establish paternity andorders for support and perform reviews and modificationsof existing orders. The rest, from locating the absentparent to the collection of the last dollar owed, will bedone through the evolving automated federal/state childsupport enforcement system. Without most peopleknowing it, we may discover that we have created aNational Child Support Enforcement Center based on alinking of all states and employers, perhaps via theInternet21 and the Eastern Regional Interstate ChildSupport Enforcement Association—http://www.ericsa.org.

The non-payment of child support is a nationalproblem, indeed a disgrace. If parents cared financiallyfor their children, there would be no need for welfare orstate child support enforcement programs. But there aretoo many irresponsible parents. The 1996 congressionalresponse to the non-payment of support moves the nationstep-by-step toward a federal solution. It is a solution thattakes the choice of paying support away from responsibleand irresponsible parents alike. U

Robert Swain is the Deputy Director of the Child Sup-

port Enforcement Section of the Division of Family and

Children Services. He currently is assigned as the man-

ager of the State Disbursement Unit project. He earned

a B.A. and a J.D. from Mercer University.

1. The Personal Responsibility and Work Opportunity Reconcil-iation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105(1996).

2. 42 U.S.C. § 653(i) (Supp. III 1997).3. O.C.G.A. § 19-11-9.2. Duty of employers to report hiring or

rehiring of persons.

4. 42 U.S.C. § 653(A)5. Id. § 653(A)(g) (transmission of wage withholding notice to

employers).

6. Id. § 666(a)(19)(f) (Uniform Interstate Family Support Act(UIFSA)).

7. O.C.G.A. § 19-11-100 et seq. (effective January 1, 1998).8. Id. § 19-11-40.1.

Endnotes


F E B R U A R Y 1 9 9 9 29

Imagine This (West) Pickup8/98 p60


F E A T U R E S

Governor Barnes KeynotesMidyear Meeting

By Jennifer M. Davis

THE BOARD OF GOVERNORSof the State Bar of Georgia returnedto Atlanta for the Midyear Meetingwhich was held January 21-23 at theSwissôtel in Buckhead. In additionto the Board meeting on Saturday,there were the usual array of eventsfor sections, alumni groups, commit-tees, and foundations.

Learning to LeadLawyers from across the state

gathered on Thursday to begin theconvention with a training workshop.The Bar Leadership Institute (BLI)attracted a variety of leaders who areinvolved with the State Bar, localbars, voluntary bars, and sections orcommittees within these groups. Theintensive three-hour workshop letattendees choose from breakoutsessions on topics including: plan-ning a successful Law Day celebra-tion; coping with the media; commu-nicating with your members; recruit-ing and retaining members; top 10secrets of successful bars; anddealing with access to justice.

Following three workshopsessions, attendees reconvened tolearn ideas for revitalizing theirassociation from Dianne Dailey, whoworks with the ABA Section OfficersConference Committee on Commu-nity Outreach to State and Local

Bars. Perhaps even more helpfulthan the BLI program itself was theextensive manual of resourcespresented to every attendee to sharewith their respective groups.

Gathering with ColleaguesLater Thursday evening, the

Lawyers Foundation of Georgiahosted a reception and introduced itsnew director, Lauren Larmer Barrett.She brings her experience as alawyer who formerly worked in thefundraising division of Georgia Techto this position which will run thecharitable arm of the State Bar ofGeorgia.

Friday began early with lawschool alumni breakfasts held byEmory, Georgia State, Mercer andthe University of Georgia. Also thatday the State Bar Executive Meetinghosted a luncheon gathering with theCouncil of State Court Judges.Lunch proved to be a popular time tomeet with a total of 14 sectionstaking the opportunity to learn,network and visit. Later that evening,two more sections held businessmeetings and receptions, as did theYoung Lawyers Division.

Governor RemindsLawyers to be Proud

The highlight of the MidyearMeeting was a keynote address by

Governor Roy E. Barnes during theannual Board of Governors dinner.He discussed the pride he had in hischosen profession and vowed tostand up for lawyers during thecourse of his administration. Heexplained that given the adversarialnature of the legal system, “we can’texpect everyone to love us, we justexpect them to respect us.” He askedeveryone in the room to promise“whenever a lawyer is disparaged —even if it’s your worst adversary —you’ll speak up. The day and time tolet lawyers be trashed for no reasonis gone.” Gov. Barnes said, “I’llspeak up for the profession. Whenthe Bar is attacked wrongly, I’ll say,‘Wait, what if we didn’t have thissystem?’” He added, “Lawyers arewhat separates us from other systemsof government where disputes aresettled with the butt of a gun or theforce of arms.”

Gov. Barnes reminded everyonethat another value of our democracyis the right to counsel. “When I wasfirst practicing, we all had to takeappointed criminal cases. Now,lawyers disdain those who defendcriminals as much as the public. Weall have the obligation to representcriminals. It is our duty as lawyer totell the public that those who defendliberty are entitled to as muchrespect as other lawyers.”

He next explained the early dayswhen he developed his propensity to

F E B R U A R Y 1 9 9 9 31

pursue a legal career. In fact, theGovernor was the first in his familyto go to college and ultimately lawschool. His father owned a generalmercantile in Mableton where hespent his after school days working.Across the railroad tracks lived theman who would change theGovernor’s life. His name wasHarold Glower and he was theprofessional law assistant to Su-preme Court Justice Harrill Dawkins.When the young Roy Barnes tired ofhoisting Purina feed sacks, he wouldslip over to Mr. Glower’s and readone of the many books that stockedhis neighbor’s shelves. Mr. Glowershared books along with his dailyexperience as a laborer in the justicesystem. “By senior high school, Iwas already Shepardizing cases,”recalled the Governor. “Mr. Glowerinstilled not only a love but alsorespect for the law. He showed methat the law protected us and madeus what we are [as Americans]. Thelove of law gives us order.”

Gov. Barnes went on to say thatthe most rewarding cases he hashandled over the years as those that

did not earn him a lot of money. Hetold the story of Jake Sterling, asharecropper who lived for yearswith his father. Jake worked for 30years for the railroad laying track.One day, the Governor’s father askedhim to investigate whether Jake wasentitled to any Social Security. Jakeput on a starched white shirt andoveralls to accompany his lawyerdowntown. Once there, officialsasked Jake for his middle name. Theelder gentleman explained he didn’thave one officially but had adopted amiddle name when filling outpaperwork when he first went towork for the railroad. He chose ashis new middle name the last nameof his crew foreman, John Bell. Fromthat day on, he was known as JohnBell Sterling. Officials next askedwhen Jake was born. He innocentlyreplied, “I don’t rightly know. Mamasaid it was cold.” As it turns out hislawyer, the future Governor of ourstate, had an affidavit stating Jakehad been a railroad laborer duringthe presidency of Woodrow Wilsonfrom 1912-1920. They checked thecensus, found “John Bell Sterling”

listed and he got his pension. Gov.Barnes concluded, “It took a lawyerto demand that Jake get what he wasentitled to. That’s what it means topractice law.”

Mentoring New LawyersAt the 165th meeting Board of

Governors on Saturday morning,members heard an update on aprogram which will ensure the valuesthat drew the Governor to the profes-sion are instilled in new lawyers.John T. Marshall reported the Stan-dards of the Profession Committee hechairs is implementing a pilot studyto test the program which wasapproved by the Board in June of1997, and authorized by SupremeCourt order in October of that year.The proposed program was initiatedduring the term of then-Bar PresidentBen F. Easterlin IV.

The program will explorewhether law school graduatesbecome better lawyers if guidedduring their first two years of prac-tice by an experienced lawyer. Thepilot is a four-year program: 1998

1. Gov. Roy Barnes (third from left) pauses with the Cobb delega-tion of the Board of Governors: (from left) Dennis O’Brien, JudgeAdele Grubbs, Robert Ingram, Bob Beard and YLD President RossAdams. 2. President Bill Cannon presents Georgia Legal ServicesExecutive Director Phyllis Holmen with a $250,000 check repre-senting lawyers’ donations to the annual fundraising campaign.3. Visiting at the Mercer alumni breakfast are: (l-r) Lamar Sizemore,President-elect Rudolph Patterson and Anton Mertens.

1 2

3


was spent planning and obtainingfunding; 1999 will mark the selec-tion of 150 lawyer mentors andbeginning lawyers; 2000 would seethe actual implementation of thementorship program which wouldlast two years.

Ron Ellington, former dean ofthe University of Georgia School ofLaw, is developingthe curriculum whichwill take place inCLEs and outside theclassroom. Thelawyer mentor andstudent will berequired to meet aminimum of once amonth. Three six-hour continuing legaleducation seminarswill apply a series ofpractical problems tothe practice of law.The first year willconcentrate on skillslike setting fees,resolving legaldisputes, dealingwith other lawyer,etc. In the secondyear, participants canchoose two of fourcourses on specificareas of law.

John Marshall explained in hisreport to the goal of the pilot pro-gram is to find out whether it willwork. And if the answer is yes, thencan it be sustained? But the mostimportant question he said is, “Doesit make a difference in the levelcompetence and professional val-ues?” Mr. Marshall pointed out thepotential added value of remindingthose who volunteer as mentors ofthe same core values that lead themto the practice.

The State Bar had allocated$50,000 to test the program. Sincethen, the Open Society Institute(OSI) donated $25,000 to the pilot

so the Bar was refunded half itsinitial contribution. The Standards ofthe Profession Committee is continu-ing to explore other funding sources.

Dues to Remain SameThis Committee and over 80

others continuously strive to offer

the highest quality programs at aminimal cost. Because the leadersand staff of the Bar watch expensescarefully, we are able to maintain thelowest bar dues in the country. Forthe fifth year in a row, the Board ofGovernors voted to set the State Barlicense fees at $150 for activemembers. The chart on this pageshows how Georgia compares toother bars within the SouthernConference of Bar Associations.

While Georgia may boast thelowest dues, there is no shortage ofprograms and services offered by theBar and related organizations.Following are just three which werereported on during the Board of

Governors meeting:w Judicial District Profes-

sionalism Program (JDPP): RobertD. Ingram, Co-chair of the Benchand Bar Committee, updated theBoard on this program which usespeer intervention to address profes-sional problems at the local level.The Committee is drafting Bar rules

to govern the pro-gram which willeventually be submit-ted to the Board forconsideration. Indeveloping the rules,the Committee isexploringhypotheticals todetermine exactlyhow possible prob-lems — such as ajudge who is ignor-ing the uniform rules— will be addressed.Implementationefforts will continueover the next severalmonths.w Georgia Bar

Foundation: Execu-tive Director LenHorton reported that1998 was the bestyear thus far for the

program. He discussed the Phillipscase in Texas which challenged theconstitutionality of IOLTA at theU.S. Supreme Court. He also an-nounced that Board of Governorsmembers John Chandler and CharlesT. Lester Jr. affirmed that their firm,Sutherland, Asbill & Bennan, woulddefend the IOLTA program inGeorgia if such a case was ever filed.He also reported on the uniqueaction of the Georgia Supreme Courtfollowing the Phillips decision.Unlike other states where the highcourt was either remained silent ormerely suggested its support forIOLTA, Georgia’s Supreme Courtissued an order instructing the

Southern Conference Statistics: Budget per MemberNumber of Number of Total Budget

Rank State Staff Members Budget per Member1 Georgia (97-98) 55 29,630 $4,474,000 $151.002 Louisiana 21 18,000 $3,000,000 $166.673 Maryland 25 18,300 $3,200,000 $174.864 Missouri 40 23,100 $4,500,000 $194.815 Virginia* 78 34,200 $7,275,000 $212.726 Oklahoma 34 14,224 $3,500,000 $246.067 Kentucky 35 12,536 $3,200,000 $255.268 Arkansas 10 4,145 $1,100,000 $265.389 Alabama 35 12,409 $3,460,000 $278.8310 West Virginia* 12 4,835 $1,390,000 $287.4911 North Carolina* 86 27,532 $8,000,000 $290.5712 Tennessee 12 6,800 $2,000,000 $294.1213 Mississippi 20 6,000 $1,900,000 $316.6714 Texas 300 62,144 $23,304,000 $375.0015 Florida 265 57,500 $23,000,000 $400.0016 South Carolina 37 9,500 $4,100,000 $431.5817 Kansas 27 6,000 $2,600,000 $433.33

*Voluntary and Unified figures combined

F E B R U A R Y 1 9 9 9 33

Trustees of the Georgia Bar Founda-tion to conduct business as usual.w Foundations of Freedom:

The many public service programswhich benefit from IOLTA moniesdistributed by the Georgia BarFoundation are just one example ofthe good work that lawyers do.

1

7

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1. The General Practice & Trial Section, led by Chair John Timmons (left) andoutgoing Chair Bill Lundy (right) honored lawyer legislators during their an-nual luncheon. Pictured (l-r) are Rep. Jim Martin, Rep. Stephanie Stuckey,Secretary of State Cathy Cox, Rep. Rich Golick and Sen. Billy Ray. 2. (l-r)During the Lawyers Foundation reception, President Bill Cannon visits withJohn Chandler and Earle Lasseter, who serves as ABA Treasurer-elect. 3. (l-r) Udai Vikram Singh and Albert Bolet visit during the Women and Minoritiesin the Profession Committee luncheon. 4. During the Bar Leadership Insti-tute, speaker Dianne Dailey shares ideas with Jesse Lael of the Georgia AsianPacific American Bar Association. 5. During the annual American Law Insti-tute breakfast, Judge Dorothy Beasley introduces Lance Liebman, the newDirector of ALI. 6. At the Board meeting Saturday, David Lipscomb leads abreakout group discussion of proposed revisions to the disciplinary rules. 7.Paul Kilpatrick presents the Court Filings Committee report at the AdvisoryCommittee on Legislation meeting. 8. On behalf of the Council of JuvenileCourt Judges, Judge A.J. Welch presents their legislative proposal to theBoard of Governors. 9. Standards of the Profession Committee Chair JohnMarshall updates the Board on the mentoring pilot project for law students.10. Stonewall Bar Association members Melinda Agee and James Tarletondiscuss topics presented at the Bar Leadership Institute.

President William E. Cannon Jr.hopes to spread the message of thesegood deeds across the state in aneffort to improve the public’s percep-tion of lawyers. He instituted theFoundations of Freedom programwhich was discussed in detail in thelast issue (Dec. 1998, page 50).

Dennis C. O’Brien, who chairs theeffort, updated the Board on thegroup’s work. All lawyers are invitedto be part of the speaker’s bureau totake the message to civic, commu-nity and school groups. Volunteers

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F E A T U R E S

Board of Governors Outlines1999 Legislative Agenda

By Thomas M. Boller

and Mark Middleton

THE 1999 GEORGIA GENERALAssembly convened on Monday,January 11. Thirty-eight attorneyswere sworn in to serve in the 180-member House and eight attorneyswere elected to serve in the 56-member Senate. And for the firsttime in 16 years, a lawyer, Roy E.Barnes, was inaugurated as Governorof Georgia.

While the 1999 legislativesession is expected to be dominatedby initiatives addressing urbansprawl, regional transportationplanning, health care reform, andproperty tax relief, the legislaturewill address a number of key issuesaffecting the operation of the courtsand the practice of law. The StateBar’s 1999 legislative agenda,adopted and approved by the Boardof Governors at its November andMidyear meetings, is summarizedbelow:

Expansion of the Court ofAppeals: This proposal expands theGeorgia Court of Appeals by addinga new panel of three judges and onejudge to serve as administrative andchief judge.

State Funding of JuvenileCourts: Currently, county revenuesare the primary source for juvenilecourt judgeships. This proposalentitles each circuit to state funding

at a rate of 90 percent of the statebase salary for superior court judges.House Judiciary Chair, Rep. JimMartin, is the author of the bill.

Amending Service Statute toConform to Federal Rule: Theproposal would require payment ofservice costs by certain defendants,such as corporations or competentadults, that choose to not acknowl-edge service. The acknowledgmentof service would not waive defensesrelating to venue and jurisdiction.

Appellate Judge Retirement:This proposal conforms appellateretirement criteria to the SuperiorCourt standard by lowering the agefrom 65 to 60 years of age. Underlegislative rules, this bill would becarried over to the next session aftera mandatory actuarial study.

Choice of Law in CommercialTransactions: This bill allows non-resident parties to choose Georgialaw in commercial transactions. Thebill also provides for venue in casesinvolving this choice, but the billdoes not affect other venue provi-sions currently provided for underGeorgia law.

Sanctions for Failure to CancelSecurity Deeds: The bill providesfor a $500.00 penalty when lendersfail to cancel satisfied loan instru-ments.

Requirement for SuperiorCourt Clerks to Maintain PrintedIndices and Books: This proposal

would require the clerks to maintainprinted copies of indexes even if thefiling system is computerized. Thisprotects against computer systemfailures and addresses questions overaccuracy and availability of records.

Urge Congress to Reject theRepeal of McDade Amendment:Congress has passed legislationknown as the McDade Amendmentwhich reversed efforts by the JusticeDepartment to exempt their prosecu-tors from state ethics rules. The StateBar’s position is consistent withrequiring all attorneys to abide bystate ethics rules.

Endorsement of State CourtFilings Committee Report: Thisreport by the State Bar’s CourtsFilings Committee contains recom-mendations for a plan and procedurefor collecting civil and criminal casefiling data on a statewide basis. TheState Bar has not adopted specificlegislation, but all interested partiesare in the process of working on abill that would resolve data owner-ship issues. The State Bar recognizesthat the data is public informationand will insist that the public haveaccess to this data.

Appropriation for DomesticViolence Program: This positionendorses the Chief Justice’s budget-ary request of $2.5 million for use inproviding legal services to thevictims of domestic violence. Therequest represents an increase of

F E B R U A R Y 1 9 9 9 35

$500,000 from the $2million appropriated forthe first time last year.

Appropriation forCASA Program: Thisitem endorses additionalfunding of $219,541 for atotal allocation of$839,541 for the CASA(Court Appointed SpecialAdvocates) program.

Revisions to Corpo-rate Code: The followingproposal contains fiverevisions to the corporatecode.1. Amendment of unused

classes of blank pre-ferred stock: AmendO.C.G.A. Section 14-2-602 to allow a board ofdirectors to amend therights of series ofpreferred stock withoutshareholder approval ifno such shares wereoutstanding.

2. Electronic proxyvoting: AmendO.C.G.A. Sections 14-2-722 and 14-2-140 toadd a new definition for“electronic transmis-sion” or transmittedelectronically.” It isbelieved that thisamendment wouldallow Georgia to joinseveral states in bringing signifi-cant cost savings to corporationswith large numbers of sharehold-ers.

3. Mergers of parent corporationsinto subsidiary corporations:Amend O.C.G.A. Sections 14-2-1104 and 14-2-1302 to allow aparent corporation owning at least90 percent of a subsidiary corpora-tion to merge into the subsidiary.

4. Definition of beneficial owner:Amend O.C.G.A. Section 14-2-1110(4) and 14-2-1131(1) harmo-

nize the definition of “BeneficialOwner” to be consistent with themost recent definition adopted bythe General Assembly.

5. Exceptions to transacting businessin Georgia: Amend O.C.G.A.Section 14-2-1501 to clarifyinstances when a certificate ofauthority is not necessary toconduct business in Georgia.

Revisions to Limited Partner-ship and Limited Company Act:This proposal amends the GeorgiaLLC Act and Limited Partnership

Act to implement changesappropriate in light ofrecently adopted regula-tions by the InternalRevenue Code.

The State Bar’sAdvisory Committee onLegislation agreed tosupport the IndigentDefense Council’s fundingrequest, which includes anincrease of $2 million forFY 2000, and to supportthe Appellate ResourceCenter’s funding request,which includes an additionof $200,000.

In addition to advocat-ing the State Bar’sadopted agenda, weprovide legislative track-ing services to eachsection of the State Bar. Ifyou become aware oflegislation that impactsyour area of practice,please contact the legisla-tive contact person foryour section or MarkMiddleton at (770)825-0808.

For full texts of theBar’s legislative propos-als, weekly legislativeupdates, addresses/phonenumbers for House andSenate members, or otherimportant information

regarding legislative activities andthe Bar’s legislative program, visitour Web site at www.gabar.org, orcall our office at (404) 872-0335;fax (404) 872-7113. U

Thomas M. Boller and Mark Middleton are leg-

islative representatives for the State Bar of

Georgia.

On January 11, two lawyers were sworn-in to the state’shighest public offices—Governor and Lieutenant Governor.Above, former Gov. Zell Miller hands over the seal of Geor-gia to Gov. Roy Barnes. Below, Lt. Gov. Mark Taylor is swornin by Judge Cindy Wright as his son, Fletcher, looks on.


F E A T U R E S

By Andy Bowen

THE GEORGIA JUSTICEProject (GJP), a unique non-profitgroup that provides legal defense,counseling andsupport for indigentclients to help themlead crime-freelives, is the 1998recipient of a$100,000 Corpo-rate Office Region/District Grant fromthe United ParcelService Founda-tion.

“They’re doingso much good inthe community, andthey’ve been doingit without signifi-cant financialresources for solong, that thechoice was not adifficult one for usto make,” commented Evern Cooper,UPS Foundation Executive Director.“The employees who nominated GJPand the UPS Foundation’s Board ofTrustees felt strongly that the Geor-gia Justice Project truly was meetingan urgent human welfare need,which was one of the selectioncriteria.”

GJP Executive Director DougAmmar said the grant will be used tohelp them acquire more building

Jerry Collins (left), employee relations manager for United Parcel Service,receives a thank-you plaque from David Rocchio of the Georgia JusticeProject (right). Behind are Doug Ammar (left), Executive Director of GJP,and Marcus Cook, a team member of New Horizon Landscaping Service.

Georgia Justice Project Gets Boostwith a $100,000 UPS Grant

space for their client/offender jobtraining program, New HorizonLandscaping (NHL). The serviceemploys indigent clients who are justout of prison, awaiting trial or are

trying to get back on their feetfinancially, physically or emotion-ally. NHL provides landscapingservices for residential and commer-cial customers in the metro-Atlantaarea.

“Now we’re going to be able totouch the lives of so many morepeople,” commented Mr. Ammar.“On their behalf, and on behalf of thecommunity it will benefit, we can’tsay thanks enough to UPS.”

Founded in 1986 by John APickens, a top Atlanta lawyer wholeft a promising corporate career toprovide free legal help for the poor,the Georgia Justice Project uses a

holistic approachcombining advo-cacy and rehabili-tative services thathas helped morethan 1,100 indi-gent men andwomen getthrough their legalproblems andreach the potentialto go on to leadcrime-free, drug-free lives.

GJP’s lawyersprovide aggressivelegal defense forclients who sign acontract agreeingto take part inrehabilitativeprogramming,

addiction counseling, job training,GED classes and other activities andtreatment. And, they must staycrime-free. It is unique in the nationand will soon be joined in its workby a sister organization, the AthensJustice Project. U

Andy Bowen is a former daily newspaper edi-

tor in Georgia who is a freelance writer and

media relations practitioner.

F E B R U A R Y 1 9 9 9 37

MORE THAN 100years later, the 1898Clayton CountyCourthouse willundergo a renovationto restore the buildingto its original charm.The renovation is partof a $119 millionproject that includesthe creation of the newClayton County JusticeComplex. Beginning in2000, the historicClayton County Courthouse will berestored for use in county operations,to include administrative functions.

The courthouse, one ofJonesboro’s most enduring andfamiliar landmarks, was transformedin the 1960s when the originalfacade was covered by a brick andcement annex, and again in the1980s. Today, the larger, more

Clayton County Restoring Courthouse,Building Justice Complex

modern structure houses propertydeeds, wills and judge’s courtrooms.Current renovation plans includeraising the annex, restoring theoriginal, Early Southern stylearchitecture facade and remodelingthe interior for office space.

The ground-breaking of thestate-of-the-art justice complex, tookplace in October. To be completed in

2000, the complex wasdesigned to alleviateovercrowding at both thepresent courthouse andthe current detentionfacility in Lovejoy. Bothexisting facilities will berenovated for govern-mental use by the projectteam as part of theoverall plan by 2001.

Due to extensivepopulation growth inClayton County, the

county’s justice system has under-gone great changes. The currentLovejoy detention center was built in1986 and was at capacity within twoyears. A one-percent special purpose,local option sales tax is funding the726,855-square-foot facility, whichis expected to meet the county’sneeds through 2015 and beyond. U

The new Clayton County Justice Complex will be completed in2000, and the Courthouse restoration will begin. (Art courtesyof Hellmuth, Obata & Kassabaum, Inc.)

FULTON COUNTY DISTRICTAttorney Paul L. Howard announcedthat his office will spearhead effortsto establish metro-Atlanta’s firstChildren Advocacy Center, a multi-disciplinary approach to assistingvictims of child abuse and non-offending family members. Inaddition to the Fulton CountyDistrict Attorney’s Office, theChildren’s Advocacy Center will bea collaborative project involving lawenforcement, child protectiveservices, medical professionals,educators, victim’s rights advocates,civic and business leaders, as well asrepresentatives from the judicialsystem. U

During a recent trip to Texas, representatives of the Fulton County DistrictAttorney’s Office and the Georgia Center for Children gathered on the stepsof the Children’s Advocacy Center in Dallas. Back row (l-r): Cynthia Williamson,Suzie Ockleberry, LaVann Weaver and Leslie Miller-Terry. Front row (l-r)Jacquelyn Drake, Paul Howard, Cynthia Roberts-Emory and Deborah Espy.

Fulton County’s Child Advocacy Center In Planning


F E A T U R E S

State Bar of Georgia Committee Preference Form 1999-2000Name: _________________________________________________________ Bar No.: ______________________________

Firm, Employer, Agency: ________________________________________________________________________________

Address: _____________________________________________________________________________________________

Phone: ________________________________________________________ Year Admitted to Practice: ________________

Fields in which you practice: _____________________________________________________________________________

How many attorneys practice in your office: __________________________________________________________________

Have you ever served on a State Bar Committee? If so, which one(s)? ____________________________________________

Are you presently serving on a Committee? If so, which one? ___________________________________________________

Do you wish to continue serving on that Committee? If not, please list a new Committee ______________________________

Please list a maximum of three committees you are interested in working with in 1999-2000:

1. __________________________________________________________________________________________________

2. __________________________________________________________________________________________________

3. __________________________________________________________________________________________________

Return by mail to the State Bar, Attn: Committees, or fax to (404) 527-8717

EACH YEAR THE STATE BARoffers Georgia attorneys an opportu-nity to contribute to the legal profes-sion and the public by volunteeringto serve on one of the State Bar’smany standing and special commit-tees. President-elect Rudolph N.Patterson, who will take office inJune, encourages Bar members totake advantage of this opportunity.

If you presently serve on a

President-elect Seeks CommitteeParticipation for 1999-2000

committee and wish to continue,please indicate on the form below.Prior service does not ensure auto-matic reappointment. Also, you canlet us know if you wish to change toanother committee.

A listing of committees appears onpage 53 of your Directory & Hand-book. Members are encouraged toexpress committee preferences usingthe form below. There is also a form

on the Web site where you can e-mailyour preferences. To find it, go towww.gabar.org/ga_bar/bar/index.htm.

The Bar strives to make appoint-ments that will achieve diversity andbroad representation of Georgia’s legalcommunity. While we would like toappoint everyone to their preferredcommittees, the number of requestsoften exceeds the number of vacan-cies. Thank you for your interest. U

F E B R U A R Y 1 9 9 9 39

Rave Reviews (West) -New


SEEN UP CLOSE, THE BAR’SWORK IS VERY IMPRESSIVE

By Ross J. Adams

The President of the YoungLawyers Division has amultitude of responsibilities in

addition to presiding over an almost9,000-member section of the StateBar of Georgia. While my duties arenot nearly as extensive as those ofthe State Bar President, the YLDPresident has many other responsi-bilities, which are assigned by theState Bar’s bylaws, the YLD bylawsand the President of the State Bar.

Most importantly, of course, theYLD President is the chief executiveofficer of the Division, responsiblefor carrying out the purposes of theDivision. Those purposes includefostering among the members of theBar the principles of duty andservice to the public; improving theadministration of justice; furtheringthe aims, purposes and ideals of theState Bar of Georgia; fosteringdiscussion and interchange of ideasrelating to the duties, responsibilitiesand problems of the younger mem-bers of the State Bar; and encourag-ing the interest and participation ofthe younger members of the StateBar in the activities of the Bar. Tofulfill those responsibilities, the YLDhas about 30 committees devoted toservice to the bar, service to thepublic and substantive legal issues.The President is an ex-officio

member of each of those commit-tees, and with the assistance of theYLD Executive Committee, usesthose committees to fulfill thepurposes of the Division.

However, in addition to thoseduties, the YLD president also sits onthe Executive Committee and theBoard of Governors of the State Bar,which adds more responsibilities.Among those duties is to be a liaisonto several State Bar committees. This

year, I am liaison to the UniformRules Committee and the FamilyCourts Committee. I also serve onthe Program Committee and theStandards of the Profession Commit-tee. In addition, the YLD Presidentsits on the Chief Justice’s Commis-sion on Professionalism, the GeorgiaBar Foundation and the LawyersFoundation of Georgia.

As a result of my participation inso many parts of the Bar, I have seenso many good things our Bar isaccomplishing that I am trulyamazed. The problem with beingaware of so much good work isdeciding how to write about thatwork. Writing these columns can bestressful, but that stress stems

primarily from there being too muchabout which to write. Nevertheless, itis such great work that is beingaccomplished that I am going to try.But I must warn you that thiscolumn may turn into a work to becontinued.

Just focusing on the YoungLawyers Division, there are dozensof topics. For example, we recentlyhosted the 10th Annual LegislativeBreakfast. The panel consisted ofChief Justice Robert Benham,Attorney General Thurbert Baker,Judge J. D. Smith of the Court ofAppeals, Sen. Rene Kemp, Chair ofthe Senate Judiciary Committee andRep. Jim Martin, Chair of the HouseJudiciary Committee. In attendancewere several lawyer-legislators,many members of the SupremeCourt and Court of Appeals andrepresentatives of the executivebranch, including Secretary of StateCathy Cox. Also present weredozens of lawyers gathered to speakwith our guests and to hear the panelspeak. This was a fantastic opportu-nity for young lawyers to meet ourlawmakers and find out what isplanned for the upcoming legislativesession.

Another major YLD projectjust completed is the AspiringYouth Program. Over 50 younglawyers donated their time assist-ing 6th, 7th and 8th graders atWalden Middle School in Atlanta,helping them with their schoolwork and teaching them sports-manship. BellSouth Telecommuni-cations sponsored the program andthe honorary chair was ChiefJustice Benham. This is an ongoingprogram, and will take place againin the spring, and also will beexpanding to other parts of thestate.

The Corporate and BankingCommittee has also done some greatwork. In addition to sponsoring aseminar entitled “Nuts and Bolts of

As a result of myparticipation in the Bar,I have seen so manygood things that ourBar is accomplishingthat I am truly amazed.

F E B R U A R Y 1 9 9 9 41

It’s not too late to volunteer to serveas a judge/evaluator

Saturday, March 13 at theState Finals in LawrencevilleFor more information contact

the mock trial office at:800/334-6865 (ext. 779), 404/527-8779

or [email protected]

Corporate and Banking Law” theCommittee has also worked onprojects benefiting youth and smallbusiness owners. With the assistanceof Equifax, the Committee estab-lished the YES program to teach highschool age children about budgetingand credit. The Committee alsopublished a pamphlet, sponsored byCT Corporate System, entitled“Which Legal Entity is Right foryour Business,” describing each typeof business entity available inGeorgia. This pamphlet was so welldone that the Secretary of State’soffice began including it in everycorporation formation packet that theoffice distributed.

As I feared, I have reached theend of my allotted space withouteven scratching the surface of thegood work accomplished by theYoung Lawyers Division and theState Bar of Georgia. As such, I amforced to end this column with thosedreaded words, to be continued. ... U

MARCH 18-21 AT CALLAWAY GARDENS

YLD Planning Spring MeetingJOIN THE YOUNG LAWYERSDivision and State Bar of GeorgiaExecutive Committee for the YLDSpring Meeting the weekend ofMarch 18-21, 1999 at CallawayGardens in Pine Mountain, Georgia.

The weekend convenes Fridaywith the YLD Executive Committeemeeting at 4:00 p.m. Then the YLDinvites everyone to join them for agroup dinner at 7:00 p.m. at the OakTree Victorian Restaurant nearCallaway.

Saturday morning, the YLDExecutive Council will meet at 10:00a.m. Once the meeting wraps up, therest of the day is free to enjoy themany activities available at Callaway

Gardens. The YLD has reserved teetimes on Callaway’s famous Moun-tain View Course,which is amoung thenation’s top-ratedcourses, and is home tothe PGA TOUR’SBuick Classic. Otherleisure activitiesinclude tennis, raquetball, fishing,boating and hiking. And don’t forgetabout the Horticultural and ButterflyCenters!

The meeting will concludeSaturday evening with a wine-tastingreception and group dinner. Winelovers will not want to miss thisreception, which will feature Anita

LaRaia, wine connoisseur and teacherfrom the The Wine School in Atlanta.The demonstration will continuethrough dinner, as Anita explains thetechniques of proper wine tasting. Theevening will not be complete though,without first playing a few games ofthe YLD’s famous Bingo! We’ve gotgreat prizes lined up, so we hope tosee you there!

To register for the meeting,please call the YLD Office at (404)527-8778 or (800) 334-6865. Theroom rate for Callaway Gardens is$96 per night. To reserve your room,please call the hotel directly at 1-800-CALLAWAY. U


Wallace Law registrypickup 12/98 p37

F E B R U A R Y 1 9 9 9 43

STATE BAR SECTIONS MEM-bers turned out in record numbers toattend sponsored events in conjunc-tion with the Midyear Meeting. OnJanuary 22, seventeen sections heldmeetings at either the Swissôtel orRitz-Carlton Buckhead. Thosegroups who held events were:Aviation, Bankruptcy, Computer,Environmental, Family, Fiduciary,General Practice & Trial, Health,Intellectual Property, International,Labor & Employment, School &College, Senior Lawyers, Taxation,Tort & Insurance Practice, andWorkers’ Compensation. At right aresome photo highlights of the variousevents.

Computer and IntellectualProperty Law combined theirmeetings. Pictured (photo 1) isLarry K. Nodine of Atlanta, Chairof Intellectual Property. TheComputer Law Section is chairedby Jeffrey R. Kuester of Atlanta(not pictured).

Taxation, chaired by LyonnetteM. Davis of Atlanta, announcedupcoming plans for their section.(Pictured l-r, photo 2, are Ms.Davisand Gregory L. Fullerton ofAlbany, Past Chair of the Section).

Secretary of State Cathy Coxaddressed the General Practice &Trial Section (photo 3).

Workers’ Compensation,chaired by Larry Neal Hollington ofAugusta, held their (renowned)midyear reception. (photo 4, l-r,Larry Hollington and H. MichaelBagley, Immediate Past Chair).

E. Alan Armstrong, Atlanta,Chair of the Aviation Law Sec-

Record Attendance at Midyear Meeting

tion, speaks to members at theirluncheon meeting (photo 5).

Labor & Employment brokeattendance records as outgoing ChairJames M. Walters of Atlanta, con-

ducted elections and turned the gavelover to Jean S. Marx of Atlanta(photo 6). U

—Lesley T. Smith, Section Liaison

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By Terri Olson

GOSSIP IS PARTICULARLYdamaging in law firms, because notonly does it contribute to the sameproblems it does elsewhere—paranoia, tension, bad relationshipsand wasted time—but it’s possiblethat client confidences will be part ofthis gossip. It’s hard to controlbecause, like bad driving, everyonedeplores it yet most people are guiltyof it at one time or another.

Therefore, the first rule fordiminishing gossip is to recognize

Making 1999 Gossip-Free in Your Firmthat everyone can fall under its spell.No one is exempt, although of coursesome people are by nature chattier,

less kind, or less concerned over thevalidity of rumors than others. Butgossip is a universal human weak-ness, not something limited towomen, secretaries, or those with toomuch free time. So when you say, “Inever gossip” (which everyone says),admit “except when I think it’s arelevant issue; except when it’s trueand everyone knows it anyway;except when it’s too good to waste;except when I’m telling someonewho won’t pass it on” or whateverapplies to you.

Since everyone admits officegossip is bad, yet most peoplespread rumors at one time oranother, simply telling your em-ployees “no gossiping” is rarelyeffective: everyone will agree andunfortunately continue as before.Hold a meeting or circulate a

memo that provides concreteexamples of what constitutesunacceptable gossip, such as:w Discussing anything related to a

client matter within the firm toanyone who does not have aspecific business need to know, orto anyone outside of the firm forany reason;

w Talking about other employees’personal problems, includinghealth, reasons for absences ormarital difficulties;

w Talking about other employees’work habits, work hours orabilities;

w Talking about employee relationships,whether romantic, good or bad;

w Speculating about personnelissues, including hiring or firingplans, salaries, bonus distributionsand evaluations.

When you tell employees that theyshouldn’t gossip about others, makesure that you have not removed theironly outlet for complaints about co-workers. All staff should have asupervisor who can listen to and dealwith personnel problems; the trick is toensure that complaints are deliveredonly to that person and not to othersympathetic ears.

Because gossip is an outlet instressful situations, it is frequently asymptom of other problems in thefirm. It is rampant, for example, inorganizations where little realinformation is shared with staff orassociates. It is also very common insituations where employees feel thatthey are fundamentally powerlessconcerning major issues like salary,distribution of work and feedback on

Gossip is rampant inorganizations wherelittle real informationis shared with staff orassociates. It is alsocommon whenemployees feelpowerless.

HealthCareAudi-tors pickup12/98p75

F E B R U A R Y 1 9 9 9 45

performance; gossip makes them feelinvolved and important. In addition,gossip is frequently a symptom ofpoor management. If tardiness, poorperformance, or even worse isallowed to continue unchecked,resentful employees will gossipabout the offender, and theoffender’s friends will spread rumorsin return. So provide your staff withless material for gossip by providingthem with firm management and asuitable level of information aboutfirm business. Involved and re-spected employees typically havefewer gossip problems because theyalready know what the facts are, andthey are too busy to listen to anyoneelse’s version.

Rumors and tales cannot spreadwithout two participants: the onetalking and the one listening. Mostemployees will attempt to defendthemselves by indicating that theyare only guilty of hearing gossip;they weren’t spreading it. Nip thisjustification in the bud. If everyonein an office walks away the secondsomeone else begins gossiping, therumor dies right there. Make it clearto staff that, although it may seemharsh, someone who is known towhile away the hours listening tosomeone else’s chatter will besubject to the same discipline as the

one who started the rumor. Refusingto listen to gossip need not comeacross as rudeness: the best response(albeit one that comes surprisinglyslowly to most employees) is “I’msorry, but I’ve got work to do.”

As your mother probably toldyou long ago, the only way to makesure that nobody else finds out aboutsomething is to tell nobody elseabout it. Nobody, not even yoursecretary. Sometimes those withlong-term secretaries feel that a sortof spousal privilege extends to allconversations held with that person.Bear in mind that your secretary maynot feel the same way; althoughmany are extraordinarily discreet,some are not. I once worked with afirm where partners were mystifiedabout why confidential hiringinformation kept filtering down tothe associates even though thepartners had not said a word to them.It turned out that the associates weregood friends with most of thepartners’ secretaries.

The anecdote also illustratesanother one of the problems men-tioned earlier: if the associates hadbeen provided with a discreetlyedited version of the facts up front,they would not have been houndingthe secretaries for tidbits from therumor mill.

Garret new

MedicalExpertTesti-monypickup12/98p74

In summary, remember thefollowing tips to avoid gossipproblems in your office:w Admit that at one time or another,

we are all part of the problem andall need to be part of the solution;

w Agree with your employees aboutwhat constitutes gossip, and whyit is harmful;

w Keep confidential informationabsolutely confidential, not sharedwith one or two “trustworthy”people;

w The truth or falseness of the rumorbeing spread is irrelevant;

w Whether you are spreading gossipor soaking it in is irrelevant;

w Provide as much information andfeedback to employees as pos-sible; gossip does not flourishunder these circumstances. U

Terri Olson is the Director of the State Bar’s

Law Practice Management Program.


By Doug Hill

THE KEY TO DRAFTING Adivorce settlement agreement, aswith drafting any contract, is toanticipate and provide for all contin-gencies while avoiding the use ofvague generalities or ambiguousterms. This article will discuss someof the more common pitfalls and tipsfor avoiding them.

Probably a majority of disputesbetween former spouses involveissues relating to custody andvisitation. It is impossible to foreseeand forestall all of the potentialissues that can arise in relation tochild-rearing; however, a lot ofrecurring problems can be avoidedwith a little foresight.

Child CustodyIncreasingly, parties are agreeing

to exercise “joint custody” of theirchildren. Unfortunately, that phrasecan mean entirely different things todifferent people. In drafting anagreement it is a good idea toaddress physical and legal custodyseparately.

Legal custody governs the rightto make decisions which affect theeducation, health and welfare of thechild. In addition to providing forconsultation between the parties andaccess to school and health records,any agreement should provide thatone parent has the ultimate decisionmaking authority over particulardecisions (or a practical means ofresolving any “tie”). Remember, it ispossible to divide this responsibility,

Drafting Divorce Settlement Agreementsfor instance by allowing one parentto make medical decisions and theother to decide educational matters.

In providing for visitation or“secondary physical custody,” inaddition to granting the noncustodialparent the right to see the child “atall such times and under suchreasonable conditions as the partiesmay agree upon,” always provide fora schedule to take effect in the eventthe parties are unable to agree. In theabsence of a schedule, even theslightest disagreement can spawnlitigation.

Make the visitation schedule asspecific as possible. Define what ismeant by the “first and third week-end,” i.e., “the weekend commenc-ing on the first and third Friday ofeach month.” If the parties intend toalternate weekends, identify the firstweekend in the cycle, which parentwill have the child, and how thepattern will be affected by holidaysthat interrupt the normal cycle. Theremust be some way of determining whois entitled to a particular weekend,often months or even years in thefuture, if the court is to enforce eitherparty’s rights in a contempt hearing.

Speaking of holidays, avoid amere reference to “alternate holi-days.” At least identify them byreference to “school holidays” or“federal holidays” or the specificevents, e.g., Memorial Day, LaborDay, etc. Remember, Spring Breakand Easter are not synonymous.Some years Easter falls during theschool Spring Break, but not always.If it is intended for one party to haveEaster (does that include the preced-

ing Saturday? Good Friday?) and theother party to have Spring Break in agiven year, define both holidays in away that is mutually exclusive.Better yet, give the same party bothSpring Break and Easter in the sameyear to avoid a conflict. Anothersolution is not to award specificholidays to either party, but toprovide that “in the event a school orfederally recognized holiday falls onthe Friday preceding or the Mondayfollowing the noncustodial parent’sweekend to have the child with himor her, visitation shall be extended 24hours to include such holiday.”Under this arrangement, each parentwill get one-half of the holidays overtime. If the agreement does provide forvisitation by the noncustodial parentduring specific holidays, don’t forgetto supersede the normal weekendschedule by providing that the custo-dial parent will have the child atreciprocal times, e.g., “during allholidays as defined above which arenot expressly granted to the noncusto-dial parent.”

When providing for time withthe child during the summer, con-sider using the same dates each year,e.g., July 1 through July 31, or aspecific trigger date, e.g., “com-mencing at 6:00 p.m. on the seventhday following the last day of schoolfor the school year.” If the dates aregoing to change each year, be sure toprovide that whoever has the author-ity to select the dates for that yeardoes so by a certain date, such asMay 1, or require sufficient advancenotice that the other party can planhis or her summer vacation with the

F E B R U A R Y 1 9 9 9 47

child. Be sure to provide specificallythat the custodial parent is alloweduninterrupted time with the child forthat purpose and that he or she hasthe same right to telephone contactwith the child, and even weekendvisits, if the child is with the otherparent for an extended length oftime. The agreement should alsospecify whether the summer visita-tion will be exercised in one continu-ous block of time or, if not, aminimum increment of time.(Otherwise, “30 days” can bespread out to include 15 two-day weekends!)

Defining “Christmas”presents its own set ofproblems. Christmas Daydoes not always fall at themidpoint of the winter schoolholiday. Thus, giving eachparent “one-half” of theholiday or “one week atChristmas” could result inone parent having the childon Christmas Day duringsuccessive years. If the parents livein the same area, they may choose todivide the school break at 12:00noon on Christmas Day, but that mayresult in one parent getting more thanhalf of the school holiday. If oneparent lives out of state, forcing achild to travel on Christmas Daymay be impractical, as well as unfairto the child. Giving each parent oneweek commencing on December 25or 26 in alternate years assures anapproximately equal division of theschool holiday, but, by dividing theremaining time into two shortsegments, it may not give the otherparty sufficient uninterrupted time totravel with the child to visit out-of-state family. In short, there is nomagic language for dealing with thisholiday; family traditions varygreatly and what works for onefamily may not work for another.The emphasis should be on what willwork in each situation and then make

it clear what the parties intend.Birthdays, Mother’s Day,

Father’s Day, and other specialfamily occasions need to be identi-fied and specific times establishedfor their observance, if the partiesdesire. The same holds true for weeknight visits. Often the parties want tokeep the schedule flexible to accom-modate changes in the child’sactivities or the parents’ employ-

ment; however, language should beincluded that designates a specificnight and time in the event theparties cannot agree or designateswhich party will choose the nightand how and when notice is to begiven to the other party.

Finally, there is the issue oftelephone communication. Thisremains a problem in some cases inspite of, or perhaps because of,improved communication technol-ogy. The solution to this problemwill vary with the age of the childand the parties’ circumstances.Setting a definite day and time foreach call is just one possibility.Getting a separate telephone line andanswering machine for the child(even a cellular phone or a pager sothe child is accessible at all times) isanother, if the parties can afford it.Stipulating that the child who is oldenough to do so can call wheneverhe or she wishes is a third option.

Just be sure the agreement specifieswho will pay for these expenses andhow long the calls will last.

Dividing PersonalProperty

The division of property can bethe most complex issue in a divorceagreement, particularly if the assetsare substantial. Provisions relating to

Qualified Domestic RelationsOrders and tax and bank-ruptcy considerations arebeyond the scope of thisarticle. Instead, this articlewill focus on commonoversights involving the saleor transfer of the maritalresidence and common formsof personal property.

In dividing personalproperty, including bankaccounts, vehicles, stocks andbonds, and household goodsand furnishings, alwaysprovide for the payment of

any debts secured by such property.(Even bank accounts may serve ascollateral for certain loans.) If theproperty has not been physicallydivided already, specify the date bywhich the property will be picked upor delivered and by whom. Remem-ber, if any property is not addressedin the agreement, the parties’ owner-ship rights in that property, whetherindividual or joint, remain as theywere before the divorce.

If one party is awarded theownership of the marital residence,be sure to include the requirementthat the other party execute a quit-claim deed as well as language toeffectuate the transfer of title in theevent they fail to do so. The agree-ment should also specify what debtsare secured by the real property andwho is responsible for satisfyingeach loan. While the parties cannot,between themselves, alter theirrespective obligations to a lender,

divorce photofrom 12/96issue


each can and should agree to indem-nify and hold the other harmlessfrom any indebtedness assumed bythat party.

If one party is to receive a futurelump sum payment in exchange forhis or her interest in the home, besure to specify the date or thecircumstances under which thepayment will become due, e.g., “atthe earlier of such time as theyoungest child attains the age of 18years or ceases to reside in the homeor the former spouse sells or refi-nances the residence.” Particularly ifyou represent the recipient, makesure the various contingenciesestablish an outer time limit withinwhich the payment must be made,otherwise both parties may be deadbefore any money changes hands.

If the agreement requires themarital residence to be sold, now orin the future, you must clearly defineeach party’s rights and responsibili-ties in connection with the sale.Establish a method for selecting thereal estate agent and determining notonly the listing price but, moreimportantly, the ultimate sellingprice. Keep in mind that the propertymay not sell immediately. Includeprovisions to govern which partywill have the use of the homepending the sale, who will pay themonthly mortgage payment and thetaxes and insurance premiums (if thelatter are not included in the monthlypayment), who will pay for routinemaintenance as well as repairs thatmay be necessary to make the homemore marketable, and specifywhether the payor will be reimbursedfor any of these expenses from theproceeds of the sale. Don’t overlookthe possibility that neither party willchoose to reside in the home pendingthe sale. In that event, specialprovision may need to be made forpayment of the mortgage and utilitiesand the right to rent the home.

Alimony & Child SupportThe issues associated with

alimony and child support are oftenrelatively simple compared tocustody and property matters;however, there are a few areas in

which special care needs to be taken.Even the most basic agreement

should specify the amount of thepayments, when they are due, e.g.,“on or before the first and fifteenthdays of each month,” and when orunder what circumstances they willterminate. Remember, if the agree-ment does not specifically provide tothe contrary, alimony paymentsterminate upon the death of eitherparty or the remarriage of the partyreceiving the payments and childsupport terminates when the young-est child attains 18 years of age orotherwise becomes emancipated.

(Unless the agreement providesotherwise, child support is notreduced pro rata as each of severalchildren attains the age of majority.)

Be careful drafting an agreementwhich provides for an automaticmodification based upon a change inthe payor’s income. A minimumpayment should be specified to avoidthe possibility that the amount coulddecrease to zero. Also specify whattype of compensation is being or willbe considered as income. Salary,commissions, bonuses, a vehicleallowance or reimbursement forexpenses, and contributions to aretirement plan may all constitute“income,” and the parties may intendto include or exclude any or all ofthese. Don’t forget to provide for ameans of verifying changes inincome, such as requiring the partiesto exchange income tax returns, andto specify the date on which theautomatic change will take effect,preferably annually or on the effec-tive date of an increase in salary.

Another area involving supportwhich can trap the unwary practitio-ner arises when one or both partiesagree to pay for a child’s collegeeducation. The agreement shouldfirst specify the particular expensesto be covered, e.g., tuition, room andboard, books, student activity fees,transportation, etc. The agreementshould also provide for the manner inwhich any scholarship moniesreceived (or monies contributed bythe child or from other sources) willbe credited against the amountotherwise due.

Be careful that the obligation topay is not conditioned upon theapproval or input of the payor intothe decision of which college thechild will attend. Such a provisionmay permit a party to avoid his orher obligation merely by voicing anobjection to the school selected.

However, most agreementsshould contain some parameters on

If the agreement doesnot specifically provideto the contrary,alimony paymentsterminate upon thedeath of either party orthe remarriage of theparty receiving thepayments and childsupport terminateswhen the youngestchild attains 18 yearsof age or otherwisebecomes emancipated.

F E B R U A R Y 1 9 9 9 49

Hill International -4C pick up 12/98

the parties’ obligation. Generally, theparties will want to limit the amountthey may be required to pay to “thecost of attending the University ofGeorgia for an in-state residentstudent.” Consider also restrictingthe length of time payments will bemade, e.g., a maximum of four yearsor until the child reaches a specifiedage (typically age 22 or 23, by whichtime the child is expected to gradu-ate), and requiring that the childattend school as a full-time studentwhile maintaining a specifiedminimum grade point average. Insetting these parameters, be awarethat, in the absence of language tothe contrary, once the obligation topay post-minority expenses termi-nates, such as if the child does notattend school one quarter, theobligation may not be revived if thechild subsequently reenrolls. Also,since the child could be held to be athird-party beneficiary of such anagreement, it is a good idea toinclude a clause that permits theparents to avoid their obligation, orto impose additional conditions onthe child, if both parents consent to amodification.

In conclusion, there is no suchthing as a failsafe divorce agreement.People intent on antagonizing theirformer spouses can be fiendishlyclever. Even so, clear and compre-hensive language can go a long waytoward avoiding future litigation. Byfollowing these suggestions, theparties’ rights and obligations shouldbe clear enough to avoid fruitlessdisputes over petty matters, therebylimiting counsels’ future involve-ment to those more serious issues forwhich he or she can expect to becompensated. U

Doug Hill is an attorney at Custer & Hill PC

in Marietta. This article is reprinted with per-

mission from the Cobb Bar News.


Forsyth County Bar Goes to SchoolBy Lisa C. McCranie

LAW-RELATED EDUCATION ISmaking a difference in ForsythCounty. According to Superior CourtJudge Richard S. Gault of the Bell-Forsyth circuit inCumming, “Itteaches students theimportance of beinglaw-abiding citizensand the conse-quences of theirconduct. With law-related education,there is a betterchance of keepingthem from being incourt as adults.”

The ForsythCounty SchoolSystem has inte-grated law-relatededucation (LRE) intoits classrooms thanksto a cooperative effort between theteachers and the local bar associa-tion. Last year, members of theForsyth County Bar Associationpurchased LRE materials from theCarl Vinson Institute for everyschool in Forsyth County. Thesematerials have become part of thecurriculum in classes like govern-ment, social studies and history, aswell as a part of extracurricularactivities such as the Mock Trialcompetition.

Judge Gault became involvedwith the Forsyth County schools fiveyears ago as a Partner in Educationby working with a second gradeclass, visiting a couple times a year

and planning a field trip to thecourthouse. For the past two years hehas been involved with a mock trialteam in Jane Grebe’s fifth gradeclass at Sawnee Elementary. JudgeGault feels it is important for stu-

dents to gain knowledge as early aspossible not only of the legal profes-sion, but also other professions toexpose students to possibilities fortheir future. Getting involved withthe students is personally rewardingbecause of the positive feedback hereceives from them. “It’s fun for meto see them get excited; but it’sdifficult to disabuse them of howthey see lawyers portrayed on t.v.,”he said.

Ms. Grebe’s fifth graders lovedoing the mock trial. The first yearthe case was based on “Goldilocksand the Three Bears,” and the secondyear on “The Three Little Pigs.”Even though the students were

familiar with these stories, they hadto look at each story from a differentperspective and come up with averdict. Participating in the mocktrial helps the students see both theprosecuting attorney’s and the

defendant’s points ofview, and learn thatthere are two sidesto every story.

At OtwellMiddle School,Connie Lenich andChristine Hartley’seighth grade Georgiahistory classes puton a mock trial aswell. Each studentreceived part of ascenario involving amurder case and hadto come up withtheir own testimonybased on the infor-mation they were

given. The students were responsiblefor all aspects of the trial frommaking a stage look like a court-room, to costumes, to testimony andquestions. All of the court officialswere represented from the bailiff tothe judge with even the other eighthgrade classes making up the courtaudience. The mock trial is a greatway for students to learn about courtprocedures. To help the studentsprepare for the trial, Ms. Lenich andMs. Hartley relied upon An Introduc-tion to Law in Georgia, written bythe State Bar Young Lawyers Divi-sion and published by the LREConsortium at the Carl VinsonInstitute.

North Forsyth High School’s 1998 Mock Trial team.

F E B R U A R Y 1 9 9 9 51

Ms. Lenich feels LRE is impor-tant for students to realize that in afew years they could be on a jury,making decisions for their peers;they are citizensand in just a fewyears will belegal adults,voting andmaking deci-sions for them-selves and thepeople aroundthem. Mock trialhelps them tothink thingsthrough andmake an in-formed decisionbased on thefacts at hand.

While mock trials in the elemen-tary and middle schools are inte-grated into the curriculum, at thehigh school it is an extracurricularactivity. Teacher Kathy Vail has beenthe mock trial team coach at NorthForsyth High School for the past 10years and has enjoyed every minuteof it. In fact, she is a former GeorgiaLRE Teacher of the Year. The mocktrial team is made up of 14 membersfrom grades 9-12 who activelycompete for their position on theteam. Some of the students areinterested in a legal career whileothers just wish to refine their verbaland analytical skills. Most studentslike the mental challenge of neverknowing what will happen next. It’sdifferent from drama where youfollow a script. High school juniorLauren Ducharme recognizes theskills she has developed as a memberof the team: “From this program notonly do you obtain a better under-standing of the law, but you are givenan opportunity to improve yourspeaking style and to learn to thinklogically on your feet, which are skillstransferred into everyday life.”

Working with Ms. Vail, attorneys

Everything that mock trial has to offer I amdirectly rewarded by. ... College admissionsespecially like seeing ‘mock trial team member’ onapplications because it shows determination,aggressiveness, public speaking, getting along wellwith others and a host of other characteristics.”

—Taylor Howard, Sophomore

in the community help the studentson the defense and prosecuting teamsrefine their case. Judge Gault holds adress rehearsal for each team,

usually in his courtroom, givingfeedback to each attorney andwitness regarding his or her perfor-mance. Experience has proven JudgeGault to be a good teacher; NorthForsyth High School has come insecond place at the state Mock TrialCompetition for the last four years.

According to Ms. Vail, “Oncestudents become involved they wantto do it over and over again. Kids gethooked on this.” Some students

enjoy it so muchthat they returnas practicingattorneys to helpthe teamsprepare for thecompetition.

If you areinterested inlaw-relatededucation, pleasecontact theGeorgia LREConsortium atthe Carl VinsonInstitute of

Government of the University ofGeorgia; 201 North Milledge Av-enue; Athens, Georgia 30602-5482;(706) 542-2736. U

Lisa C. McCranie works with the Chief Justice

Commission on Professionalism.

Second Annual Awards BanquetSaturday, April 24, 1999

North Central Marriott, Clairmont Road, Atlantaw w w

Among the honorees:Georgia Bar Foundation

Gwinnett Judicial Circuit and Court Administration Staffand the 1999 Georgia Champion Mock Trial Team

w w w

For tickets and sponsorship information contact Carol Brantley at404/874-9300 or [email protected]


Robert L. Haig, ed. Business and Commercial Litiga-tion in Federal Courts, American Bar AssociationLitigation Section and West Group. 6 vols., 6690 pagesand 2 diskettes of forms/jury charges $480

Reviewed by John A. Chandler

The American Bar Association’s Section of Litiga-tion has published a massive, six-volume workentitled Business and Commercial Litigation in

Federal Courts, which arrived on my desk complete witha WordPerfect disc of forms. Edited by Robert L. Haig, apartner in Kelley Drye and Warren LLP in New York, thiswork was written by 152 lawyers and judges. This seriesfills the void between treatises that focus on the FederalRules of Civil Procedure and Evidence and those that areoriented toward single subjects or state lawclaims. By focusing on the substance,strategy and tactics for handling businesslitigation in federal court, the treatise isworth its hefty $450 price (15 percentdiscount to ABA members).

The thought of reading nearly 7,000pages seemed somewhat daunting. Itherefore first looked at the authors—wasthis written by lawyers trying to makenames for themselves or by seasonedveterans? The latter is the gratifyinganswer. I turned to the chapterdevoted to the area in which I mostoften find myself—the representationof accounting firms and law firms—todiscover that the authors are the best in ourarea of concentration: Dan Kolb and JerrySnider at Davis Polk & Wardwell. Representing account-ing firms, Dan tried the Butcher Bank cases in Tennessee(settled after months of trial) and tried and won (after an18-week jury trial) the combined FDIC/class actiongrowing out of the failure of Continental Illinois Bank.These are not rookies and are not lawyers who are afraidto try cases. The same can be said for Charlie Shaffer andDan King from King & Spalding (“Sanctions”), and anumber of the chapters are written by highly respectedfederal judges such as Chief Judge Roger Vinson of theNorthern District of Florida (“Removal”). The authorsknow what they are talking about.

The most striking features of this work are its subjectmatter orientation and its emphasis on strategy andpractical issues. Litigating an ERISA case? Go to Chapter68 on ERISA. Are you troubled by a pesky RICO orSecurities Fraud issue? The experts will tell you how. Inaddition to substantive areas, there are informativechapters on subjects such as jury selection and closingarguments. Moreover, the Shaffer/King chapter on Sanc-tions (Rule 11, discovery abuses) provides wise counsel:“Even well-founded sanctions motions entail costs that maynot be worth the fight” (Vol. 3, Ch. 48.2, p. 853).

This work gives you more than the law. The Profes-sional Liability chapter provides common law andstatutory theories of liability for professional negligence,

common pleading and discovery issues, achecklist of “essential allegations and de-fenses,” illustrative pleadings (includingthose you can easily lift from the accompa-nying disc) and jury instructions.

I kept the books around for a fewweeks to see how they met the needs ofa trial practice. A colleague asked foran “example of a petition for writ ofmandamus filed in federal courtagainst an officer or employee of theUnited States.” I could find no suchform, though there is a petition formandamus to the Court of Appeals.

Several other more mundane requests,however, were easily satisfied.The law cited is illustrative, not exhaustive.

In several instances, key Eleventh Circuit deci-sions are not cited, although shepardizing the cases

that are cited gets the reader to Eleventh Circuit prece-dent.

After using the books, I highly recommend them.They are an extraordinary effort and an extraordinarilyuseful work by knowledgeable practitioners. Any lawyerwho regularly handles business litigation in federal courtneeds access to these works. U

John A. Chandler is a partner in Sutherland Asbill & Brennan LLP who

has represented plaintiffs and defendants in business litigation in fed-

eral courts for more than 25 years.

A LITIGATION RESOURCE

WORTH ITS WEIGHT

F E B R U A R Y 1 9 9 9 53

Attorney GeneralThurbert Baker

Official OpinionsEducation;

Governor’sHonors Program.Official Code ofGeorgia Annotated§ 20-2-306(a) doesnot authorize theState Board ofEducation toinclude home-schooled students in theGovernor’s Honors Program.(11/12/98 No. 98-18)

Taxation; Real estate transfertax. Georgia’s real estate transfer taxapplies to easements acquired bypublic utilities through condemna-tion. (11/12/98 No. 98-19)

Fingerprinting; misdemeanorcriminal offenses. Updating ofcrimes and offenses for which theGeorgia Crime Information Center isauthorized to collect and file finger-prints. (12/14/98 No. 98-20)

Taxation; County ad valoremtax digest. O.C.G.A. § 48-5-304permits the Department of Revenueto accept an ad valorem tax digestsubmitted for review by a county in arevaluation year of either (a) thedisputed assessed value of propertyinvolved in arbitration or appeals is5% or less of the total assessed valueof all property reflected on thetaxable tangible digest, or (b) thenumber of parcels of propertyinvolved in arbitration or appeals is5% or less of the total number ofparcels shown on the digest. (12/21/98 No. 98-21)

University System employees;tuition benefits. ROTC facultymembers are not eligible to receivebenefits pursuant to the Board of

Regents’ Tuition Remission andReimbursement Program, as theBoard of Regents does not employthem as “full-time employees.”(12/21/98 No. 98-22)

Unofficial OpinionsJudges, Superior Court;

retirement system benefits. Asuperior court judge who was amember of the Superior CourtJudges Retirement System and whopaid the requisite contribution toobtain spousal benefits under thatsystem may not recoup those spousalcontributions if she subsequentlychooses to reject spousal benefitsunder the new Georgia JudicialRetirement System. (11/2/98 No.U98-13)

Officers and Employees,Public; gratuities. Local schoolsystem employee suggestion pro-grams do not violate the constitu-tional prohibition against gratuities.(11/12/98 No. U98-14)

Public funds; incentive grantsto private entities. Under currentprecedent the Georgia Constitutiondoes not permit direct grants to

private persons solely to induceeconomic activity for the generalwelfare. (12/14/98 No. U98-15)

Regents; Board of; appropria-tions for. The General Assembly iswithin its power to require informa-tion of the Board of Regents underCode Section 45-12-88 so long as itsexercise of the power does notinfringe upon the constitutionalpower of the Board to govern theUniversity System, particularly itspower to receive and allocate as alump sum “[a]ll appropriations madefor the use of any of all institutionsin the university system.” (12/14/98No. U98-16) U

Arthur Anthonypickup 12/98p68

AAA -pickup12/98p66


In AtlantaRobert E. Banta has opened

the Atlanta office of Fragomen,Del Rey, Bernsen & Loewy, animmigration firm headquartered inNew York. Mr. Banta is managingpartner of the Atlanta office. Theoffice is located at 1175 PeachtreeSt. NE, 100 Colony Square, Suite700, Atlanta, GA 30361; (404)249-9300.

Elrod & Thompson announcesthat J. Vance Burgess III, David A.Dismuke, and Thomas C. Granthave become associates with thefirm. The office is located at 1500Peachtree Center-South Tower, 225Peachtree St. NE, Atlanta, GA30303; (404) 659-1500.

Williams & Henry LLP an-nounces that Joseph A. Fried hasbecome a partner in the firm and willcontinue to practice in the areas ofmedical malpractice, trucking andcatastrophic personal injury. Theoffice is located at 1100 PeachtreeSt., Suite 2020, Atlanta, GA 30309;(404) 873-3000.

Steven A. Nelson and LeonardR. Gray Jr. have joined First Ameri-can Title Insurance Company,National Accounts Division, Mr.Nelson as Manager and Counsel, andMr. Gray as Underwriting Counsel.Their office is located at 5775Glenridge Dr., Suite A-240, Atlanta,GA 30328; (404) 836-6303.

Womble Carlyle Sandridge &Rice announces that James H.Thompson, a resident of the firm’sAtlanta office, has been named anew member of the Banking, Fi-nance and Property Practice Group.The office is located at 1201 WPeachtree St., 31st Floor, Atlanta,GA 30309; (404) 888-7463.

Jones & Askew LLP announcesthat Holmes J. Hawkins III, MaryAnthony Merchant Ph.D, andWilliam L. Warren have beenelevated to partner. The office islocated at 191 Peachtree St., NE,37th Floor, Atlanta, GA 30303-1769;(404) 818-3700.

In CalhounThe law firm of Howard W.

Jones PC, in Calhoun, announcesthat Brent Erwin has joined the firmas an associate. The office is locatedat 109 North Wall St., P.O. Box1147, Calhoun, GA 30703-1147;(706) 625-2233.

In ConyersJeremy A. Moulton has joined

the firm of Moulton & Massey as anassociate. The office is located at904 Center St., Conyers, GA 30012;(770) 483-4406.

In DecaturGwendolyn R. Keyes, the

youngest and first African-Americanfemale to be elected to DeKalbCounty’s Office of Solicitor General,was sworn-in on Jan. 15, 1999. Shereplaces Ralph Bowden who servedas Solicitor General for 16 years.

David Paul Pollan announcesthat the Law Office of David PaulPollan, Attorney and Counselor hasrelocated. He will continue topractice in the areas of elder anddisability law from his new locationat 309 Sycamore St., Decatur, GA30030; (404) 373-4562.

In DuluthLana L. Layton has joined the

firm of Mary A. Prebula PC as anassociate. The office is located at3483 Satellite Blvd. NW, Suite 200,The Crescent Building, Duluth,Georgia; (770) 495-9090.

In ElbertonPhelps & Campbell LLP

announces that James W. Webb hasjoined the firm. The office is locatedat 313 Heard St., P.O. Box 1056,Elberton, Georgia 30635; (706) 283-5000.

In MaconShaffer, Raymond & Dalton, a

firm practicing in the areas ofdomestic relations, personal injuryand wrongful death, announces theirrelocation. The new office is locatedat 3618 Vineville Ave., Macon,Georgia 31202; (912) 471-1112.

In Washington DCSecurities and Exchange

Commission Chairman ArthurLevitt has named Michael R.McAlevey Deputy Director of theDivision of Corporation Finance.Mike McAlevey will leave hispartnership at the law firm ofAlston & Bird LLP next month tojoin the Commission. As DeputyDirector, Mr. McAlevey will be asenior advisor to the Director andwill play a key role in the manage-ment of the Division of Corpora-tion Finance.

F E B R U A R Y 1 9 9 9 55

Tifton Bar Association and Chamber members (l-r): Ken Hiyler, Larry Mims,Benton Allen, Bob Richbourg, Lisa Gibbs, Joe Kunes, Melanie Cross, JosephCarter and Buck Rigdon.

SUNSET TIFTON, A CHAMBERof Commerce sponsored “businessafter hours” event, was hosted byTifton attorneys Joseph Carter andBob Richbourg at their beautiful newoffice suite in the historic Leebuilding next to the State Bar ofGeorgia’s Satellite Office. TheSatellite Office assisted Carter andRichbourg with preparations for theevent. Several Tifton Circuit BarAssociation members who are alsoChamber members attended theevening of fellowship and networking.

Chamber Director Carla Willetexpressed her appreciation to Carterand Richbourg for their support ofthe Chamber of Commerce. U

Tifton Bar Members Host Chamber of Commerce Event

Mainstreet pick up 12/98 p.61


Client Relations

By Henry W. Ewalt

The Initial Meeting:The Foundation of theRelationshipA COUPLE OF THINGS SHOULDnever be done in an initial meeting,or ever, with a client. We willdiscuss them before we explore whatshould be done.

First, it does no good to guilt-trip the client by saying that if he orshe had come to you before, theclient would not be in all thistrouble. Most lawyers who use thisapproach are trying to obtain asuperior-inferior relationship withthe client and also to positionthemselves in case the matterbecomes worse. No matter howrewarding or protective to the lawyerit might be to guilt-trip the client,this paternalistic, judgmental ap-proach obviously is not the way tobuild a good working relationshipbetween adults, which includes mostlawyers and clients.

Second, telling the client howbusy you are and how many othermatters you have to handle will notbuild the confidence of the client.The initial meeting with the clientprovides the lawyer with the perfectaudience for boasting; however, toboast about how busy one is willonly worry the client about whetheryou will devote sufficient time and

Involving the Client in theDecision-Making Process

effort to the client’s business torender effective representation.

Now let’s examine some thingsthat should occur between lawyerand client early in the relationship.

The initial meeting with theclient is critical to setting the tone forthe entire relationship. Permit the

client to tell every detail, evenirrelevant ones, and to expressfeelings. Ask questions to gainrelevant information and to showyou are interested. Take notes toassure that what the client is sayingis important to you and to rememberwhat the client said about thisparticular situation. Discuss some ofthe general aspects of the law so the

client is reassured that he or she hasretained a competent lawyer.

Ask what goals the client wishesyou, as his or her lawyer, to accom-plish. What does the client want outof this case? Make a list. Read itback to the client. Ask the clientwhether any other items should beincluded on the list.

Some clients need assistance inthinking through what their goalsreally are. They also may need helpclarifying what they expect fromtheir lawyer. You should use theinformation you acquired from theclient about what is to be accom-plished to assist in goal setting andlawyer expectations.

The success and strength of alawyer’s relationship is largelygoverned by acquiring this informa-tion and using it effectively to buildthe relationship. So, if the client doesnot articulate the expectations, thelawyer, in the interest of developinga fruitful relationship, must politelyprobe to marshal the materialsnecessary to construct the advanta-geous relationship.

In addition to goals, the lawyershould learn at least enough informa-tion from the client to answer thefollowing questions by the end of theinitial meeting with the client:

If you feel the goals aretotally unrealistic andthat you won’t be ableto convince the clientover time to modifythem, you will probablybe better off decliningto undertake therepresentation.

F E B R U A R Y 1 9 9 9 57

What Does the ClientExpect From the Lawyer?

Each client brings uniqueexpectations based on prior experi-ences or no experience with lawyers.If lawyers are going to meet thoseexpectations, they must be known.

How Much Time, Effort,and Money is the ClientWilling to Commit to thisMatter?

Some clients will invest largesums of money in a legal pursuit butnot the time required. Others havelimited funds to expend or think amatter is only worth a limitedinvestment of money. The lawyerneeds to know this because it willdetermine what course-of-actionoptions are available.

Being judgmental about thegoals will accomplish nothing at thisstage. For instance, saying that noone has ever won a case like this isnot a confidence builder. If you feelthe goals are totally unrealistic andthat you won’t be able to convincethe client over time to modify them,you will probably be better offdeclining to undertake the represen-tation. The reason for this is thatunder these circumstances, it ishighly unlikely that you will able todevelop a satisfactory relationshipwith the client.

Failure to develop a satisfactoryclient relationship would, in the longrun, do your practice more harm thangood. It will cause harm because youwill not be building toward repeatbusiness and the client is very likelyto “bad-mouth” you to others. U

Reprinted by Permission of the ABA from

Through the Client’s Eyes, by Henry W. Ewalt,

published by the ABA Law Practice Manage-

ment Section. © 1994 American Bar Associa-

tion. All rights reserved.

will be provided with patternspeeches and a seven minute videothat depicts three lawyers in theireveryday lives. The video is beingproduced by Dan Sperling Video Inc.and should be ready by mid-March.Also Adsmith, an advertising agencyin Athens, has been hired to developfour camera-ready ads for use bylawyers, firms, or local bars withintheir communities — whether in alocal paper, high school footballprogram, theater playbill, etc. TheBar is also putting the finishingtouches on the “Client Care Kit”which lawyers can disseminate toevery client. It will contain importantforms designed to open the lines ofcommunication between lawyer andclient. Finally the Bar is publishing abrochure to dispel 10 myths aboutlawyers, including, “How can alawyer represent someone who’sguilty?” This will be available as partof the Bar’s consumer pamphletseries and for lawyers to display intheir reception areas.

Improving the DisciplinaryProcess

One of the greatest services theState Bar offers the public is protectingthem through the disciplinary process.During this meeting the Board againbroke into small group discussions toreview the draft of proposed changesto Georgia’s current disciplinary rulesto be more in line with the ABAModel Rules of Professional Conduct.President Cannon has called a specialmeeting of the Board on March 5 inMacon to solely discuss these revi-sions. The proposed disciplinary rulesare posted on the Bar’s Web site atwww. gabar.org. Members are encour-aged to review the rules and pass theircomments on to their Board ofGovernors representative before theMarch 5 vote. If the Board approves


DanTurnerBuilderspickup 8/98 p50

the proposed rules, they will bepublished in the Georgia Bar Journalfor member comment.

ConclusionWith improvements to the

disciplinary process and new pro-grams like Foundations of Freedom,there is much to look forward to asthe State Bar of Georgia approachesthe new millennium. This is yourchance to get involved by signing upfor the speakers bureau on page 69or joining a committee using theform on page 38. By workingtogether, lawyers can make this anew dawn for the profession andrediscover, as Gov. Barnes said,“what it means to practice law.” U


Name City Discipline Date of Supreme Court Order

Keith W. Benning ................ Augusta ..................... indefinite suspension with conditions .............................Nov. 9, 1998

Reginia Rogers Jackson ....... Washington DC ........ voluntary surrender of license .........................................Nov. 9, 1998

Donnie E. Perry ................... Woodstock ................36-month suspension with conditions ............................. Dec. 4, 1998

Frank B. Perry ..................... Ringold .....................public reprimand ...........................................................Nov. 20, 1998

William S. Sumner............... Atlanta ...................... reinstated .......................................................................Nov. 19, 1998

E. Herman Warnock............. McRae ......................public reprimand ............................................................. Dec. 4, 1998

Christopher Lyle Weems...... Molena ......................18-month suspension.......................................................Nov. 9, 1998

CAUTION! Over 30,000 attorneys are eligible to practice law in Georgia. Many attorneys share the same name.You may call the State Bar at (404) 527-8700 or (800) 334-6865 to verify a disciplined lawyer’s identity.

Also note the city listed is the last known address of the disciplined attorney.

The Georgia Bar Foundation Inc. sponsors activities to promote charitable, scientific and educational purposes forthe public, law students and lawyers. Memorial contributions may be sent to the Georgia Bar Foundation Inc.,800 The Hurt Building, 50 Hurt Plaza, Atlanta, Georgia 30303, stating in whose memory they are made. The

Foundation will notify the family of the deceased of the gift and the name of the donor. Contributions are tax deductible.

Benbensity, Lewis M. Admitted 1973Atlanta Died November 1998

Davis Jr., I. Burl Admitted 1969Macon Died December 1998

Foss, Tony James Admitted 1973Augusta Died August 1998

Harmon, Nolan Bailey Admitted 1952Myrtle Beach, SC Died December 1998

Henderson Jr., Devaul L. Admitted 1970Richmond Hill Died October 1998

Hishon, Elizabeth Anderson Admitted 1972Atlanta Died January 1999

Johns, Alan Gordon Admitted 1988Conyers Died November 1998

Mims, Gary Gene Admitted 1984Atlanta Died December 1998

Neisler Jr., Hugh Mitchell Admitted July 1939San Antonio, TX Died January 1999

Phillips, Erle Admitted 1948Atlanta Died January 1999

Suddath, Ronald Newton Admitted 1990Hogansville Died November 1998

F E B R U A R Y 1 9 9 9 59

Summary of Recently Published Trials

Bibb Superior Ct. ............. Collection - Infliction of Emotional Distress ................... Defense VerdictChatham Superior Ct. ..... Artificial Stucco - Termite Damage - Bond ............................... $12,000Clarke State Ct. ............... Institutional Care - Transporting Youth Offender - Falldown ...... $95,000Clayton State Ct. ............. Auto Accident - Turning - Right-of-Way ................................. $125,000Clayton State Ct. ............. Auto/Van Accident - Intersection - Red Traffic Light ................ $330,000Clayton Superior Ct. ........ Auto/Truck Accident - Intersection - Right-of-Way .................... $25,000Cobb State Ct. ................ Contract - Sale of Travel Agency - Collection ........................... $96,054Cobb State Ct. ................ Auto Accident - Intersection - Veering Off Road ....................... $65,000Cobb Superior Ct. ........... Auto Accident - Intersection - Right-of-Way ............................. $30,000Cobb Superior Ct. ........... Auto Accident - Intersection - Minor Passengers Injured .......... $65,500Coweta State Ct. ............. Single Vehicle Accident - Emergency - Deer in Road .............. Defense

VerdictDeKalb State Ct. ............. Multi-Car Accident - Rear-End - Liability Admitted ................... $18,000DeKalb State Ct. ............. Auto Accident - Exiting Parking Lot - Right-of-Way .................. $25,500DeKalb State Ct. ............. Dental Malpractice - Crowns - Preexisting Periodontitis Defense VerdictDeKalb Superior Ct. ........ Auto Accident - Removal of Road Shoulders - Warnings ......... $62,459DeKalb Superior Ct. ........ Falldown - Apartment Balcony - Railing Maintenance ... Defense VerdictFulton State Ct. ............... Auto Accident - Rear-End - Sudden Stop ................................ $45,500Fulton State Ct. ............... Auto Accident - Read-End - Epileptic Seizure ....................... $150,000Fulton State Ct. ............... Auto/Cement Truck Accident - Lane Change - Settlement ....... $50,000Fulton State Ct. ............... Collection - Advertising Services - Quantum Meruit .............. $125,500Fulton State Ct. ............... Multi-Vehicle Collision - Speeding - Loss of Control ............. $2,900,000Fulton State Ct. ............... Dog Bite - Minor - Dog with Known Propensity to Jump Fence ...... $30,000Fulton State Ct. ............... Auto/Taxicab Accident - Rear-End - Stopped on Highway ....... $40,000Fulton Superior Ct. .......... Conversion - Shareholder Profits - Derivative Suit ................. $259,071Fulton U.S. Superior Ct. ... Employment - Sexual Harassment - Constructive Discharge ......... $23,932Fulton U.S. District Ct. ..... Auto/Truck Accident - Rear-End - Braking Violations ........... $5,800,000Gwinnett State Ct. ........... Dental Malpractice - Placement of Crown - TMJ ........... Defense VerdictGwinnett Superior Ct. ...... Auto Accident - Rear-End - Following Too Closely ................... $14,000Hall U.S. District Ct. ......... Employment - Sexual Harassment - Juvenile ............... Defense VerdictMuscogee State Ct. ........ Auto Accident - Rear-End - Following Too Closely ..................... $1,115

Let us help you settle your caseThe Georgia Trial Reporter is the litigator's best source for impartial verdict

and settlement information from State, Superior and U.S. District courts.

For 10 years GTR case evaluations have assisted the Georgia legalcommunity in evaluating and settling difficult cases. Our servicesinclude customized research with same-day delivery, a fully searchableCD-ROM with 10 years of data and a monthly periodical of recent casesummaries. Call 1-888-843-8334.

Wade Copeland, of Webb, Carlock, Copeland, Semler & Stair of Atlanta, says,“Our firm uses The Georgia Trial Reporter's verdict research on a regular basis to assist usin evaluating personal injury cases. We have been extremely pleased with both the resultsand service and would recommend them to both the plaintiff's and defense bar.”

Defendant Employer Settles for $275,000When Employee Sexually AssaultsPlaintiff During Job InterviewPlaintiff was being offered a job atdefendant’s retail shoe store when she waslured into a private room and sexuallyassaulted by Defendant’s employee who hada prior record of sexual assault. (Solomon v.Family Dollar Stores; Fulton County StateCourt)

w w w

Shopper Obtains $390,000 Verdict inFalldown at Wal-MartPlaintiff, a middle-aged female, wasshopping at Wal-Mart when she slipped andfell in auto cleaner residue resulting in afractured sacrum. (Vining v. Wal-Mart;Muscogee County U.S. District Court)

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Failure to Remove Sponge From ChestAfter Heart Surgery Leads to $554,000Settlement in Wrongful Death CaseThe very active 83-year-old plaintiff diedfrom circulatory problems created by asurgical sponge that was left in the chestupon completion of aortic valve replacementsurgery. (Girardot v. Levy; Fulton County —settled prior to filing)

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Retail Store Found Liable in the Amountof $355,308 for Malicious Prosecution ofShoplifting ChargePlaintiff, a middle-aged female, wasshopping at Defendant KMart with friendswhen she was arrested and ultimatelyincarcerated for 24 days on shopliftingcharges which were subsequently dismissed.(Lovett v. KMart; Cobb County State Court)

w w w

Tenant Recovers $500,000 AgainstApartment Complex for Sexual AssaultResulting from Inadequate SecurityWhile a tenant at defendant’s apartmentcomplex, plaintiff was sexually assaulted,battered and robbed by an intruder whoentered the premises due to the inadequatesecurity provided by defendant landlord.(Zinn v. Tempo Vista Apartments; FultonCounty State Court)


Honorable Edward H. Johnsonwas installed as Chief Judge of theCourt of Appeals of Georgia on Dec.16, 1998. In a separate ceremony onJan. 6, 1999, Hon. Anne ElizabethBarnes was sworn-in as Judge of theCourt of Appeals following herelection this past November.

Beau Hays, of Hays & Potter PCin Atlanta, was appointed Chair ofthe Commercial Practice and Proce-dures Committee of the CommercialLaw League of America. TheCommercial Law League, founded in1895, is North America’s premierorganization of bankruptcy andcommercial law professionals. Mr.Hays is active in the practice ofcreditors’ rights and business bank-ruptcy law.

The National Board of TrialAdvocacy announces that Alaric A.Henry has successfully achievedBoard Certification as a civil trialadvocate through the NBTA.

The Carolina Patent Trademarkand Copyright Law Associationannounces that J. Bennet Mullinaxhas been elected Second Vice

President of the association. Also,Mark C. Dukes has been appointedto the Board of Managers. Mr.Mullinax and Mr. Dukes are mem-bers of Dority and Manning PA, aSouth Carolina intellectual propertylaw firm.

Cheryl Rivera Smith, share-holder of Smith & Jouette PC, wasrecently appointed President ofWeststar Title Company. The lawfirm and Weststar Title Company arelocated at 17736 Preston Road, Suite200, Dallas, TX 75252; (972) 931-7445.

George S. Stern, a seniorpartner with Stern & Edlin PC inAtlanta, has been elected Presidentof the American Academy of Matri-monial lawyers. Stern previouslyserved in a number of officialpositions with the Academy, includ-ing President-elect, First VicePresident, Treasurer and Governor.He also served as Governor andTreasurer of the International Acad-emy of Matrimonial Lawyers andwas a founder of the US chapter ofthe international organization. U

Justice BenhamHonored byLaw StudentsThe Quinnipiac College School ofLaw in Connecticut and the BlackLaw Students Association (BLSA)there, held a dinner in honor of ChiefJustice Robert Benham in October1998. The Chief Justice spoke to anassembly of students, professors,colleagues and friends and shared hispassion for the law. Chief JusticeBenham was presented a framedpicture of the Supreme Court ofConnecticut by Justice Norcott.

According to The QuinnipiacLegal Times, “Mr. Sekou Gary,President of BLSA and a third-yearstudent at QCSL, introduced ChiefJustice Benham as an extraordinaryjudge who is among the 100 mostinfluential Black Americans todayand whose court is noted as one ofthe most progressive.” U

9. Id. § 19-11-150 (issuance of incomededuction order); see also id. § 19-11-151 (obligation of employer uponreceipt of income deduction order).

10. Id. § 19-6-33(c) (grounds by whichthe obligor can contest the incomededuction order).

11. Id. § 19-6-33(e)(1) (statutory refer-ence to section 303b of the federalConsumer Protection Act, 15 U.S.C. §1673(b)).

12. Id. § 19-11-30.1 (computer based reg-istry); see also 42 U.S.C. § 666(a)(17)(financial institution matches).

13. O.C.G.A. § 19-11-30.2 (definitions;information from financial institu-tions).

Continued from Page 28 14. Id. § 19-11-32 et seq. (process to col-lect delinquent support accounts; lim-itations).

15. Id. § 19-11-37 (challenges to levy,mistakes, procedures; reimburse-ment); 42 U.S.C. §666(a)(19)(c)(1)(g) (securing assets).

16. 42 U.S.C. § 666(a)(14) (high volume,automated administrative enforce-ment in interstate cases).

17. Id. § 654(A)(e) (state case registry);O.C.G.A. § 19-11-39 (computerizedcentral registry for support).

18. 42 U.S.C. § 654(A)(F)(1) (federalcase registry of child support orders).

19. Id. § 654(27) (state disbursementunit); Id. § 654(B)(a) state disburse-ment unit.

20. O.C.G.A. § 19-6-32(a)(3)(a.1)(1) (en-tering income deduction order foraware of child support; when ordereffective; hearing on order).

21. Internet sites of interest for thosewishing more information include:Federal Office of Child Support En-forcement—http://www.acf.dhhs.gov/programs/cse; National Child SupportEnforcement Association—http://www. ncsea.org; American Bar Asso-ciation Family Law Section—http://www.abanet.org/family/home.html;and the Eastern Regional InterstateChild Support Enforcement Associa-tion—http://www.ericsa.org.

F E B R U A R Y 1 9 9 9 61


32. DeBruyn Produce Co. v. OlympiaProduce Co., 734 F. Supp. 483, 485(N.D. Ga. 1989), where the court or-dered the escrow of $567,519.03 forthe benefit of trust creditors.

33. J. R. Brooks & Sons v. Norman’sCountry Market, Inc., 98 B.R. 47(Bankr. N.D. Fla. 1989).

34. In re Anthony Tammaro, Inc., 56 B.R.999 (D.N.J. 1986).

35. In re Ron’s Produce Co., Case No.A90- 10975-ADK (Bankr. N.D. Ga.Oct. 29, 1990).

36. In re United Fruit & Produce Co., 86B.R. 14 (Bankr. D. Conn. 1988).

37. In re San Joaquin Food Serv., Inc.,958 F.2d 939, 939 (9th Cir. 1992).

38. In re Kornblum, 81 F.3d 284 (2d Cir.1996).

39. C.H. Robinson Co. v. B.H. ProduceCo., 952 F.2d 1311 (11th Cir. 1992).

40. In Re Richmond Produce Co., 112B.R. 364, 377 (Bankr. N.D. Cal.1990).

41. Morris Okun, Inc. v. Harry Zimmer-man, Inc., 814 F. Supp. 346, 348(S.D.N.Y. 1993).

42. 11 U.S.C. § 523(a)(4); In re JesseRussell Nix, 1992 WL 11943 (M.D.Ga. 1992).

43. Dealers in Agricultural Products Act,O.C.G.A. § 2-9-1 et seq.

44. O.C.G.A. § 2-9-1(1)(Supp. 1998).

45. A dealer in agricultural products isdefined as any person, association,itinerant dealer, partnership or corpo-ration engaged in the business of buy-ing, receiving, selling, exchanging,negotiating or soliciting for sale, re-sale, exchange or transfer of any agri-cultural products purchased from theproducer or his agent or his represen-tative or received on consignmentfrom the producer or his agent or rep-

West (Unlock thePower) - new 4C

resentative or received to be handledon a net return basis from the produc-er. Id. § 2-9-1(2).

46. O.C.G.A. § 2-9-2 (1990).

47. O.C.G.A. § 2-9-5 (Supp. 1998).

48. Id. § 2-9-11.1(b).

49. Id. § 2-9-11.1(c).

50. Id. § 2-9-11.1(c).

51. O.C.G.A. § 2-9-11 (1990).

52. See supra notes 48, 49 & 51.

53. O.C.G.A. § 2-9-6 (Supp. 1998).

54. O.C.G.A. § 2-9-7 (1990).

55. O.C.G.A. § 2-9-15 (Supp. 1998).

56. A similar arrangement exists in thesale of livestock to packers, namelythe Packers and Stockyards Act, codi-fied at 7 U.S.C. § 196 (1994).


N O T I C E S

First Publication of Proposed FormalAdvisory Opinion No. 94-R11

Pursuant to Rule 4-403 (c) of theRules and Regulations of the StateBar of Georgia, the Formal AdvisoryOpinion Board has made a prelimi-nary determination that the followingproposed opinion should be issued.State Bar members are invited to filecomments to this proposed opinionwith the Office of General Counsel ofthe State Bar of Georgia at thefollowing address:

Office of General CounselState Bar of Georgia800 The Hurt Building50 Hurt PlazaAtlanta, Georgia 30303Attention: John J. Shiptenko

Fifteen copies of any comment tothe proposed opinion must be filedwith the Office of General Counsel byApril 1, 1999 in order for the com-ment to be considered by the FormalAdvisory Opinion Board. Anycomment to a proposed opinionshould make reference to the requestnumber of the proposed opinion.After consideration of comments, theFormal Advisory Opinion Board willmake a final determination of whether

the opinion should be issued. If theFormal Advisory Opinion Boarddetermines that an opinion should beissued, final drafts of the opinion willbe published, and the opinion will befiled with the Supreme Court ofGeorgia for formal approval.

Proposed Formal AdvisoryOpinion No. 94-R11QUESTION PRESENTED:

In a transaction involving a realestate lending institution and itscustomer, may the in-house counselfor the institution provide legalservices to the customer relative to thetransaction? May the real estatelending institution charge the cus-tomer a fee for any legal servicesrendered relative to the transaction?

SUMMARY ANSWER:The answer to both questions is

“no”. An in-house counsel for a realestate lending institution assists thatentity in the unauthorized practice oflaw in violation of Standard 24, if heor she provides legal services to itscustomers which are in any wayrelated to the existing relationship

between the institution and its cus-tomer. Such conduct would alsoconstitute an impermissible conflict ofinterest under Standards 35 and 36.This prohibition does not, however,prevent in-house counsel fromattending closings as attorney for theinstitution and preparing the docu-ments necessary to effectuate theclosing including those documentsthat must be signed by the customerand that may benefit both the institu-tion and the customer. Nor does theprohibition prevent the institutionfrom seeking reimbursement for thelegal expenses incurred in the transac-tion by including them in the cost ofdoing business when determining itscharge to its customer. The charge,however, may not be denominated asa legal or attorney fee but must beincluded in the charge being made bythe institution. There is inherent riskof confusion on the part of thecustomer regarding the role of in-house counsel. Prudent lawyers willact on the assumption that courts willhonor the customer’s reasonableexpectation of in-house counsel’sduties created by the closingattorney’s conduct at the closing.

OPINION:Standard 24, proscribing assis-

tance in the unauthorized practice oflaw, prohibits in-house counsel for areal estate lending institution fromproviding legal services to its custom-ers. See also, Georgia Code ofProfessional Responsibility, Canon 3;Georgia Code of Professional Respon-sibility, Ethical Considerations 3-1 &3-8; Georgia Code of ProfessionalResponsibility, Directory Rule 3-101,and ABA Model Rules of ProfessionalConduct, Model Rule 5.4(d). Stan-

Notice Regarding Disciplinary RulesAt a special meeting on March 5, the Board of

Governors will consider changes to the disciplinaryrules. The proposed rules are posted on the Web atwww.gabar.org. Every lawyer is encouraged toreview them and contact their Board representativewith comments prior to March 5.

F E B R U A R Y 1 9 9 9 63

dards 35 and 36 prohibit such conductif the ability to exercise independentprofessional judgment on behalf ofone client will be or is likely to beadversely affected by the obligation toanother client. See also, Georgia Codeof Professional Responsibility, Canon5; Georgia Code of ProfessionalResponsibility, Ethical Consideration5-14 - 5-20; Georgia Code of Profes-sional Responsibility, Directory Rule5-105, and ABA Model Rules ofProfessional Conduct, Model Rule1.7. Specifically, in-house counselmay not provide legal services at aclosing or elsewhere to a customerborrowing from the lending institutionand arising out of the existing rela-tionship between the customer and theinstitution. This is true whether or notthe customer is charged for theseservices. The role of employeerenders the actions of in-housecounsel the action of the employer.The employer, not being a lawyer, isthus being assisted in and is engagingin the unauthorized practice of law.The in-house counsel by virtue of theexisting employer/employee relation-ship and its accompanying obligationof loyalty to the employer cannotexercise independent professionaljudgment on behalf of the customer.

This prohibition does not, how-ever, prevent in-house counsel fromattending the closing as theinstitution’s legal representative andpreparing those documents necessaryto effectuate the closing. This includesthose documents that must be signedby the customer. In such a situation,in-house counsel is providing legalservices directly to the institutioneven though others, including thecustomer, may benefit from them.

The prohibition on assisting in theunauthorized practice of law does notprevent the lending institution fromincluding the expense of in-housecounsel in the cost of doing businesswhen determining the fee to charge itscustomer. The lending institution may,in other words, recoup the expenses ofthe transaction including the cost oflegal services. This conduct does notin and of itself, create a duty to thecustomer on the part of the in-housecounsel nor does it constitute aviolation of the prohibition against thesharing of legal fees with a non-lawyer. On the other hand, chargingthe cost of legal services to the

customer (1) is likely to create anunintended expectation in the mind ofthe customer, (2) constitutes a non-lawyer receiving the fee for legalservices rather than an attorney, (3)constitutes a lawyer splitting a feewith a non-lawyer, or (4) directlyinvites the unauthorized practice oflaw. It is accordingly prohibited evenif limited to actual costs. The cus-tomer cannot be made a part of theattorney/client, employer/employeerelationship.

The situation in which in-housecounsel attends closings as attorneyfor the lending institution and pre-pares the documents necessary toeffectuate the closing is fraught withboth legal and ethical risks beyondassistance in the unauthorized practiceof law and conflict of interests. Eventhough the above analysis (1) requiresthat in-house counsel’s lawyer-clientrelationship be restricted to thelending institution, and (2) prohibitsthe direct billing for legal services bythe institution, the fact remains thatthe customer may benefit from theactions of in-house counsel. Thus the

risk of confusion about the role of in-house counsel at the closing will behigh. Prudent in-house counsel shouldanticipate that courts may treat thereasonable customer expectationsregarding these legal services ascreating duties even in the absence ofa lawyer-client relationship. TheRestatement (Second) of Torts reportsthat an attorney who represents onlythe lender may still be held liable innegligence to a borrower. See, e.g.,Seigle v. Jasper, 867 S.W. 2d 476 (Ky.Ct. App. 1973). A similar result mayobtain under traditional contract oragency principles regarding thirdparty beneficiaries. This position issupported by the Restatement of theLaw of Lawyering. While declaringthe current state of Georgia law onthis issue would be inappropriate andbeyond the scope of this FormalAdvisory Opinion, it is clear thatprudent in-house counsel will notignore these risks both in advising thelending institution and in his or herconduct toward the customer as amatter of good lawyering. U

Golden Lantern -pick up 12/98 - use“advertisement” attop


N O T I C E S

Notice of Filing of Proposed FormalAdvisory Opinions in Supreme CourtSecond Publication ofProposed Formal AdvisoryOpinion Request No. 94-R6

Members of the State Bar ofGeorgia are hereby NOTIFIED thatthe Formal Advisory Opinion Boardhas made a final determination thatthe following Proposed FormalAdvisory Opinion should be issued.Pursuant to the provisions of Rule 4-403(d) of Chapter 4 of the Rules andRegulations of the State Bar ofGeorgia, this proposed opinion willbe filed with the Supreme Court ofGeorgia on or after March 1, 1999.Any objection or comment to thisProposed Formal Advisory Opinionmust be filed with the Supreme Courtwithin twenty (20) days of the filingof the Proposed Formal AdvisoryOpinion and should make referenceto the request number of the pro-posed opinions.

Proposed Formal AdvisoryOpinion No. 94-R6

QUESTION PRESENTED:What are the ethical consider-

ations of an attorney defending aninsured client under an insurancepolicy while simultaneously repre-senting, on unrelated matters, aseparate insurance company thatclaims a subrogation right in anyrecovery against the insured client?

SUMMARY ANSWER:Under Standard 35 and Standard

36, an attorney may not simulta-neously represent clients that havedirectly adverse interests in litigationthat is the subject matter of eitherone of the representations. Whetheror not this is the case in the QuestionPresented here, depends upon thenature of the representation of theinsurance company.

If it is, in fact, the insurancecompany that is the true client in theunrelated matter, then the interests ofthe simultaneously representedclients in the litigation against theinsured client are directly adverseeven though the insurance companyis not a party to the litigation and therepresentations are unrelated. Theconsent by the clients provided for inStandard 37 is not available in thesecircumstances because it is notobvious that the attorney can ad-equately represent the interests ofeach client. This is true becauseadequate representation includes arequirement of an appearance oftrustworthiness that is inconsistentwith the conflict of interests betweenthese simultaneously representedclients.

If, however, as is far moretypically the case, it is not theinsurance company that is the trueclient in the unrelated matter, but aninsured of the insurance company,then there is no simultaneous repre-sentation of directly adverse interestsin litigation and these Standards donot apply. Instead, the attorney mayhave a personal interest conflictunder Standard 30 in that the attor-ney has a financial interest in main-

taining a good business relationshipwith the insurance company. Thispersonal interest conflict may beconsented to by the insured clientafter full disclosure of the potentialconflict and careful consultation. TheStandard 37 limitation on consent toconflicts does not apply to Standard30 conflicts. Such consent, however,should not be sought by an attorneywhen the attorney believes that therepresentation of the insured will beadversely affected by his or herpersonal interest in maintaining agood business relationship with theinsurance company for to do sowould be to violate the attorney’sgeneral obligation of zealous repre-sentation to the insured client.

OPINION:Correspondent asks whether an

attorney may defend an insuredclient when the attorney also repre-sents, in unrelated litigation, aninsurance company that claims asubrogation right in any recoveragainst the insured client. If therepresentation of the insurancecompany is, in fact, representation ofthe insurance company and notrepresentation of an insured of thecompany, then the analysis of thissituation is governed by Standards ofConduct 35 and 36 which prohibitaccepting or continuing representa-tion if the exercise of the lawyer’sindependent professional judgmenton behalf of a client will be or islikely to be adversely affected by hisrepresentation of another client. Ininterpreting these Standards, we

F E B R U A R Y 1 9 9 9 65

are guided by Ethical Consider-ation 5-14:

Maintaining the independentprofessional judgment requiredof a lawyer precludes his accep-tance or continuation of em-ployment that will adverselyaffect his judgment on behalf ofor dilute his loyalty to a client.This problem arises whenevera lawyer is asked to representtwo or more clients who mayhave differing interests, whethersuch interests be conflicting,inconsistent, diverse, or other-wise discordant.

Unlike the more familiar stan-dard applied in subsequent represen-tation conflicts, the prohibition insimultaneous representation conflictsis not dependent upon a showing thatthe matters involved are substantiallyrelated. This is so because theprohibition against simultaneousrepresentation of adverse interests isbased, primarily, on concerns withloyalty to clients, the appearance oftrustworthiness, and the preservationof a lawyer’s independent profes-sional judgment for each client. See,generally, ABA/BNA L AWYERS

MANUAL ON PROFESSIONAL CONDUCT

51:104-105 and cases and advisoryopinions cited therein. See, also,ABA Comm. on Ethics and Profes-sional Responsibility, Informal Op.1495 (1982) (lawyer may not acceptemployment adverse to existingclient even in unrelated matter;prohibition applies even whenpresent client employs most lawyersin immediate geographical area,thereby making it difficult foradversary to retain equivalentcounsel). See, also, ABA ModelRules of Professional Conduct,Comments, Rule 1.7 (“Thus, alawyer ordinarily may not act as anadvocate against a person the lawyerrepresents on some other matter,

even if it is wholly unrelated.”)1

Of course, some simultaneousrepresentation conflicts can beconsented to by the simultaneouslyrepresented clients. Consent, underthe Standards of Conduct is limitedby two requirements. The first is thatconsent can only be obtained inthose circumstances in which the fulldisclosure necessary to adequatelyinform the clients’ consents can beprovided without breach of confiden-tiality. The second is that consent islimited, by Standard of Conduct 37,to those circumstances in which it is“obvious that [the lawyer] canadequately represent the interests ofeach [client]. . . .” In interpreting the“obvious and adequate” test forconsent, we are guided by theprovisions of Ethical Consideration5-15. Ethical Consideration 5-15advises that all doubts about dividedloyalties should be resolved againstthe propriety of therepresentation andthat, generally,consent should not beobtained when clientshave differinginterests in litigationand rarely obtainedwhen they have onlypotentially differinginterests in litigation.

In the circum-stances presentedhere, it would bereasonable for anattorney to beconcerned that theadverse interests ofthe simultaneouslyrepresented clientscould adverselyaffect the quality ofthe representation byjeopardizing thequality of the rela-tionship with theclient. It is, therefore,not obvious that

adequate representation will beprovided. This is not because Geor-gia lawyers are not sufficientlytrustworthy to act professionally inthese circumstances by providingindependent professional judgmentfor each client unfettered by theinterests of the other client. It is,instead, a reflection of the reality thatreasonable client concerns with theappearance created by such directlyadverse interests could, by them-selves, adversely affect the quality ofthe representation.

If however, as is more typicallythe case, what is referred to in theQuestion Presented as representationof the insurance company is, in fact,representation of an insured of thatcompany, then the above analysisdoes not apply. In such a situation,the attorney’s primary ethicalobligation is to the insured and not tothe company, thus the fact that the

NationalLegal Re-searchGroup -pickup 12/98 p69


company may have interests directlyadverse to the other insured client isnot the issue. Instead, the attorneymay have a personal interest conflictunder Standard 30 which provides:“Except with the written consent orwritten notice to his [sic] client afterfull disclosure a lawyer shall notaccept or continue employment if theexercise of his professional judgmenton behalf of the client will be orreasonably may be affected by hisown financial, business, property orother personal interests.” Such aconflict arises because of theattorney’s need to maintain, forfinancial reasons, a good businessrelationship with the insurancecompany.

Personal interests conflicts arenot subject to the limitation onconsent found in Standard 37. Here,the insured client may consent, inwriting, to the conflict after full

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disclosure of the potential adverseeffect of the personal interestconflict and careful consultationwith the attorney. No attorney,however, should seek such consent ifhe or she believes that his or herbusiness interest will, in fact,adversely affect the quality of therepresentation with the insuredclient. To seek consent in suchcircumstances would be in violationof an attorney’s general obligation ofzealous representation of all clients.

We conclude, therefore, that ifthe representation in the situationdescribed in the Question Presentedis a true representation of an insur-ance company, then anunconsentable conflict of interestsexists and that entering into orcontinuing with such simultaneousrepresentations would be in violationof the Standards of Conduct. If,however, the representation is not a

true representation of an insurancecompany, but a representation of aninsured of that company, then apersonal interest conflict existswhich ordinarily may be consentedto by the insured client. U

Endnote1. The Supreme Court of Georgia has

not, of course, adopted the ABA Mod-el Rules. This citation is as persuasiveauthority only. The adoption of theABA Model Rules by other jurisdic-tions did not change the analysis ofsimultaneous representation conflictsapplied in this Opinion as an interpre-tation of Georgia Standards of Con-duct. The point is that this analysis iswell established.

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