27714 GA Bar April 00.p65

1A P R I L 2 0 0 0SLIP & FALL• UNDUE INFLUENCE IN GIFT MAKING • FAMILY VIOLENCE

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hutchInson islandjune 14-18, 2000

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2 G E O R G I A B A R J O U R N A L

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3A P R I L 2 0 0 0

Editorial Board

WILLIAM WALL SAPP, Editor-in-Chief

JENNIFER M. DAVIS, Managing Editor

LYN K. ARMSTRONGERIKA C. BIRG

CHARLES M. CORK IIIO. WAYNE ELLERBEE

GEORGE W. FRYHOFER IIIMICHAEL JABLONSKI

ANNE R. JACOBSMICHELLE W. JOHNSON

SARAJANE N. LOVEW. FRAY MCCORMICK

CHARLES R. ADAMS III, A DVISORTHEODORE H. DAVIS JR., ADVISOR

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

RUDOLPH N. PATTERSON, MACONPresident

GEORGE E. MUNDY, CEDARTOWNPresident-elect

JAMES B. FRANKLIN , STATESBOROSecretary

JAMES B. DURHAM, BRUNSWICKTreasurer

WILLIAM E. CANNON JR., ALBANYImmediate Past President

JOSEPH W. DENT, ALBANYYLD President

KENDALL S. BUTTERWORTH, ATLANTAYLD President-elect

ROSS J. ADAMS, ATLANTAYLD Immediate Past President

Editors Emeritus • (ex officio members)

THEODORE H. DAVIS JR., 1997-1999L. 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

WILLIAM E. CANNON JR., ALBANYChairperson

DENNIS C. O’BRIEN, MARIETTAVice-Chairperson

Staff

JENNIFER M. DAVISDirector of Communications

NIKKI HETTINGERCommunications Coordinator

D. SCOTT MURRAYMARISA ANNE PAGNATTARO

AMELIA TOY RUDOLPHJOHN M. SIKES JR.JOHN SPANGLER IIIJERRE B. SWANN JR.

DIANE BETH WEINBERGPAMELA Y. WHITE-COLBERT

J. MICHAEL WIGGINS

On the Cover: Don’t miss the first Annual Meeting of the new millen-nium, as the State Bar returns to Savannah, June 14-18. The conventionwill be held at the brand new Westin on Hutchinson Island.

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Bar of Georgia, 800 The Hurt Building, 50 Hurt Plaza, Atlanta, Georgia 30303-2934. © State Bar of Georgia2000. 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. Opinions and conclusionsexpressed in articles herein are those of the authors and not necessarily those of the Editorial Board, Commu-nications Committee, Officers or Board of Governors of the State Bar of Georgia. Advertising rate card willbe furnished upon request. Publishing of an advertisement does not imply endorsement of any product orservice offered. POSTMASTER: Send address changes to same address.

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CAROLINE SIRMONInternet Coordinator

April 2000 • Vol. 5 No. 5


lexis nexis pickup 2/00 p85,fullpage 4-color

5A P R I L 2 0 0 0

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

APRIL 2000 VOL. 5 NO. 5

Legal ArticlesPicking Up the

Slip and Fall PlaintiffBy Michael Goldberg

8

Georgia’s Law of UndueInfluence in Gift-Making

By Bertram L. Levy and Robert P. Bartlett III12

Features2000 State Bar of GeorgiaAnnual Meeting Program

17Family Violence in Georgia:

The Protective Order Registry Pilot ProjectBy The Hon. Clarence Seeliger

and The Hon. Cliff Jolliff32

Celebrate Your FreedomBy William E. Cannon Jr.

36Be a Drum Major for Justice

By Judge William Wilson40

Georgia Legal ServicesPro Bono Honor Roll

60

DepartmentsFrom the President

If We Don’t Defend Ourselves, Who Will?By Rudolph N. Patterson

6From the Director

Lawyers Foundation Offers a Lasting TributeBy Cliff Brashier

7

From the YLD PresidentRemember, Family Matters

By Joseph W. Dent43

YLD NewsGrady High Wins State Mock Trial Title

Celebrating Foster Kids’ Accomplishments44

ProfessionalismSign Up for Orientation on Professionalism

46South Georgia News

47Who’s Where

48From the Attorney General

49Book Review

Dead Run: The Untold Story of DennisStockton and America’s Only Mass Escape

from Death RowReviewed by Joe D. Whitley

50Lawyer Discipline

52In Memoriam

57Bench & Bar

ALI: Restitution, Unjust Enrichment Revisited58

NoticesProposed FAO No. 99-R2Membership Cards for All

Board of Governors Attendance1999-2000 Election Results

Directory Errata Sheet62

Classifieds/Ad Index74

8

12

17


By Rudolph N. Patterson

IF WE DON’T DEFENDOURSELVES, WHO WILL?

Recently, while attending ameeting of the Chief Justice’sCommission on Professional-

ism, I realized there is a differencebetween professionalism and being aprofessional. Professionalism is thehigh voluntary standard of conductwe expect from all lawyers. Cer-tainly, every lawyer must act withinthe mandatory ethical standards ofthe profession as promulgated by theSupreme Court. But beyond that, wehave an obligation to the professionto exceed this level of conduct andstrive to a higher standard. We mustfocus our efforts on the positive.

But this has its challenges, for Ifear we have fallen into a trap. Alook at the daily headlines or theevening news shows we havebecome conditioned to absorb onlythe negative news we hear. Do werespond the same way when we heargood news? Does it get our attentionwhen we hear someone say, “I knowsome lawyers who did good thing”?Or do we pay more attention whenwe hear stories about a lawyer introuble? Do we find ourselvesbelieving that all lawyers are bad?Are we being trained — or have webeen trained — to be a negativesociety?

Could it be that lawyers are toogood for their own good? I find that

the great majority are honest to afault. Does it therefore surprise usthat when one lawyer does some-thing wrong, it stands out like a sorethumb? It becomes a news story thatis repeated over and over for severaldays. We continue to hear it saidtime after time directly or by innu-endo that professionalism — and theprofession — are going to “the wellin a bucket.”

Instead of repeating the nega-tives, we need to make a concertedeffort to spread the good news aboutwhat lawyers are doing. There are somany who are making a differencenot just in the profession as part oftheir daily practices, but in theirprofessionalism, as true leaders oftheir bars and in their communities.

Professionalism includes alllawyers like those in south Georgia,led by YLD President Joe Dent andthe Young Lawyers Division, whoresponded to the recent tornadotragedy in that region by providinglegal assistance to the victims and byphysically helping with the clean up.There were many younger and olderlawyers, including entire law firms,involved in this aid. Yes, these werelawyers at work showing theirprofessionalism by helping others indesperate need, and no legal feeswere collected.

Professionalism includes mem-bers of the Western Circuit BarAssociation in Athens who recentlybought reading books for over 300kids and then spent time helpingthem learn to read. Professionalismincludes lawyers and judges volun-teering during our annual Law Dayactivities and the YLD Great Day ofService to complete a variety of

service projects in their hometowns.Professionalism includes Millard

Fuller, who founded and runs Habitatfor Humanity. This is a wonderfulproject he started in his law office inAmericus, Ga. They will build their100,000th home this summer. What acredit he is to our ranks as a symbolof what we all aspire to be.

Professionalism includes great,caring lawyers and judges. The listof those who have done for othersand performed their legal duties in aprofessional manner would fill manypages of this magazine. If theircontributions were printed, it wouldtake volumes. They all have dedi-cated a great part of their profes-sional life to using their legal skillsin a very positive manner.

Professionalism includes lawyerswho have actively served in variouspositions and committees of the StateBar. It includes those who haveserved their communities, cities,counties, the State of Georgia and thefederal government as volunteers, aselected and/or appointed officials.Their personal goal has been and isto improve our bar and help makethis a greater state and nation.

But as in life, there will alwaysbe a few bad apples. However, wecan not let them taint the good workthat the greater majority of you areaccomplishing.

Perhaps we feel that not standingup for our profession makes uspopular in the public eye. But whatwe’re doing in reality is unjustlycondemning ourselves. Instead ofbowing to our “educated negativeattitude,” please, support our profes-sion and share the reality that we areprofessional, ethical, concernedcitizens, caring neighbors andprotective allies. Help us share withothers our active concern and goodimage in every community. Let’s beproud of our profession and speak upfor it. For if we don’t, who will? U

7A P R I L 2 0 0 0

LAWYERS FOUNDATION

OFFERS A LASTING TRIBUTE

By Cliff Brashier

Being at an age when I amfrequently asked to be apallbearer at a friend’s

funeral but never asked to be in afriend’s wedding, the memorialsprogram of the Lawyers Foundation

of Georgia is very helpful to me. Agift in memory of a deceased attor-ney or deceased family member ofan attorney is a very meaningful wayto honor colleagues through theprofession that was such a major partof their life.

When the Lawyers Foundationreceives a memorial gift, a writtenacknowledgment is sent to the surviv-ing spouse, family members or otherdesignated persons to let them knowof the tribute. An expression of thanksis also sent to the person making thegift. The funds are then used for law-related charitable purposes.

I have found that the survivingfamily members especially appreciatethis form of lasting remembrance. Ifyou decide to honor your colleague’smemory in this manner, please let meknow if your experience is the same.

For more information on thememorials program, or the fellowsprogram and other services of theLawyers Foundation of Georgia,please call its Director, LaurenLarmer Barrett, at (404) 526-8617.

Your comments regarding mycolumn are welcome. If you havesuggestions or information to share,please call me. Also, the State Bar ofGeorgia serves you and the public.Your ideas about how we can enhancethat service are always appreciated.My telephone numbers are (800) 334-6865 (toll free), (404) 527-8755 (directdial), (404) 527-8717 (fax), and (770)988-8080 (home). U

So. Ga. Mediation new


Picking Up the Slip and Fall

PlaintiffBy Michael Goldberg

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

To the average person, the mention of aslip and fall case conjures up visionsof a malingerer pouring a Coke on thefloor and then lying next to it pretend-ing to be in pain. For some reason,people associate slip and fall caseswith the “classic insurance scam.” It

could be that most people cannot believe that claimantsare so unwary of their surroundings that they cannot seewhat is in plain view in front of them. Perhaps thesecynics have difficulty accepting that claimants could slipon such a wide variety of items as a grape,1 a partiallythawed frozen vegetable,2 a french fry,3 and liquiddetergent4 (although, ironically, there has never been areported decision in Georgia of a slip and fall on a bananapeel).

Whatever the reason for the skepticism, these claim-ants do not have the respect and sympathy that otherpersonal injury plaintiffs enjoy. Given this pervasiveattitude towards slip and fall plaintiffs, the recent decisionof Robinson v. Kroger Co.,5 in which the Georgia Su-preme Court finally decided to pick up the slip and fallplaintiff and treat him with the same dignity as any otherplaintiff, is all the more unusual.

The Law Prior to Robinson v. Kroger Co.Prior to Robinson, slip and fall law was dominated by

the burdensome test delineated in the 1980 decision ofAlterman Foods, Inc. v. Ligon.6 Under the precedent ofAlterman Foods, in order to state a cause of action, a slipand fall plaintiff had to show (1) that the defendant had

9A P R I L 2 0 0 0


actual or constructive knowledge of the foreign substanceand (2) that the plaintiff was without knowledge of thesubstance or, for some reason attributable to the defen-dant, was prevented from discovering it.7 The end resultof this test was that a slip and fall plaintiff, unlike anyother plaintiff, essentially had to prove his own lack ofcomparative negligence in order to reach a jury.8

Defendant business owners frequently used theAlterman Foods test to obtain summary judgment bydemonstrating that the plaintiff could have seen andavoided the hazardous condition but failed to do so.9

Counsel for the defendant business owner would typicallyask the plaintiff at his deposition if he could have seen thesubstance if he had looked down prior to his fall. Anunwary plaintiff would usually respond, as one wouldexpect, that he could have seen the grape, water or otherforeign substance if he had closely examined the floorbefore his fall since nothing actually obstructed his viewof the floor. Although it was almost always the situationthat the plaintiff, in hindsight, could have seen the hazard-ous substance, the business owner was still entitled tosummary judgment because the plaintiff could have seenthe substance and avoided the hazard if he had paid moreattention to where he was walking.10 In this manner, theslip and fall plaintiff was kept from presenting his case toa jury, and most cases were adjudicated on a motion forsummary judgment.

The Effect of Robinson v. Kroger Co.As this trend continued for several years, slip and fall

cases became so difficult to prosecute that attorneyswould turn them away because of the risky proposition ofmaneuvering through the difficult test of Alterman Foods.Then, in 1997, Henrietta Robinson came before theGeorgia Supreme Court, and the court had a change ofheart.

Mrs. Robinson had been shopping in a grocery storewhen she injured her knee as a result of slipping on asubstance on the floor. She admitted that she did not lookat the site where she placed her foot prior to her fall andthat she could have seen the hazardous condition if shehad examined the floor. After the trial court grantedsummary judgment to the store and the Court of Appealsaffirmed, ruling that the proximate cause of her fall washer failure to exercise ordinary care for her own safety,Mrs. Robinson sought certiorari claiming that a juryshould decide if she had been at fault in failing to see andavoid the hazard.11

The Georgia Supreme Court agreed with Mrs.Robinson and confirmed that the Alterman Foods testunfairly forced the slip and fall plaintiff to prove his own

lack of negligence.12 According to the court, recentappellate decisions had placed in the limelight aninvitee’s duty to exercise reasonable care for personalsafety and, in so doing, relegated to the shadows the dutyowed by an owner/occupier to an invitee.13

While the Robinson court acknowledged that anowner/occupier was not an insurer of an invitee’s safety,the court also recognized that an invitee who responds toan invitation and enters the premises does so pursuant toan implied assurance that the premises have been madeready and safe for the invitee’s reception, and the enteringinvitee is entitled to expect that the owner/occupier hasexercised and will continue to exercise reasonable care tomake the premises safe.14

In balancing these competing duties, the court heldthat the established standard is whether, taking intoaccount all the circumstances existing at the time andplace of the fall, the invitee exercised the prudence anordinarily careful person would use in a like situation.15

Given this standard, a plaintiff’s admission that he did notlook at the site on which he placed his foot prior to hisfall does not establish as a matter of law that he failed toexercise ordinary care.16 Furthermore, a defendant is notentitled to summary judgment simply because a plaintifftestifies that he could have seen the hazard had he visu-ally examined the floor before taking the step that led tohis accident.17

Under the precedent of Robinson, a slip and fallplaintiff must now prove (1) that the defendant had actualor constructive knowledge of the hazard; and (2) that theplaintiff lacked knowledge of the hazard despite theexercise of ordinary care due to actions or conditionswithin the control of the owner/occupier. However, theplaintiff’s evidentiary proof concerning the second prongis not shouldered until the defendant establishes negli-gence on the part of the plaintiff, i.e., that the plaintiffintentionally and unreasonably exposed himself to ahazard which he knew or, in the exercise of ordinary care,should have known existed.18 The court cautioned that“routine” issues of premises liability, including thenegligence of the defendant and the plaintiff, and theplaintiff’s lack of ordinary care for personal safety,generally are not susceptible to summary adjudication,and that summary judgment should only be granted whenthe evidence is “plain, palpable, and undisputed.”19

Post-Robinson Decision s Con cern in gCon structive Kn owledge

Armed with this new decision, slip and fall claimantsfought off summary judgment motions with the mereincantation of the words “Robinson v. Kroger Co.” The

11A P R I L 2 0 0 0

Court of Appeals dutifully followed the Supreme Court’smandate and repeatedly held that summary judgmentcould not be based on the plaintiff’s failure to see thecondition that caused his fall.20 Although the situationappeared grim for business owners, they would not bediscouraged. Since the plaintiff’s conduct no longerprovided a basis for summary judgment, defendantssearched for an alternate method of escaping liability andeventually focused on the defendant’s lack of knowledgeof the hazardous condition. Presumably even underRobinson, the plaintiff had to demonstrate that the defen-dant had actual or constructive knowledge of the foreignsubstance that causedplaintiff’s fall.21 Since fewdefendants admitted thatthey knew of the hazardouscondition, this issue usuallyfocused on the plaintiff’sability to prove constructiveknowledge.22

A plaintiff could showthe defendant’s constructiveknowledge by presenting(1) evidence that employees were in the immediatevicinity and easily could have noticed and removed thehazard, or (2) evidence that the substance had been on thefloor for such a long time that (a) it would have beendiscovered had the proprietor exercised reasonable care ininspecting the premises, and (b) upon being discovered, itwould have been cleaned up had the proprietor exercisedreasonable care in its method of cleaning the premises.23

In regard to employees in the vicinity of the foreignsubstance, the plaintiff had to show that the substancewas visible and capable of being discerned by the em-ployee.24 In regard to liability for failure to inspect thepremises properly, the central issue was the plaintiff’sproof of the actual amount of time the substance had beenon the floor.25

Although the Robinson court was explicit in thetreatment of the issue of plaintiff’s exercise of ordinarycare for his own safety, the court’s decision was silent inregard to the requirement that the plaintiff must demon-strate that the defendant had actual or constructiveknowledge of the foreign substance that caused plaintiff’sfall. Left with no guidelines from the Supreme Court, theCourt of Appeals held in the decision of Sharfuddin v.Drug Emporium, Inc. that the first prong of the oldAlterman Foods test regarding the defendant’s knowledgeof the hazard was not altered by the Robinson decision.26

In Sharfuddin, the plaintiff slipped and fell in wateron the floor of defendant’s store. The plaintiff admittedthat there were no employees of the defendant in the

vicinity and further admitted that she did not know howlong the water had been present on the floor. Despite thefact that the defendant offered no evidence of its inspec-tion procedures, the court affirmed the grant of summaryjudgment to the defendant on the ground that the plaintiffhad failed to point to specific evidence giving rise to atriable issue on the question of the defendant’s knowledgeof the water.27 According to the court, the plaintiff had toprove the amount of time the water had been present onthe floor or else there would be no evidence by which ajury could determine that a reasonable inspection wouldhave revealed the foreign substance.28

The Sharfuddin deci-sion created a new point ofattack for defendants, andthis basis for summaryjudgment was as onerouson the slip and fall plaintiffas the Alterman Foods test.Under the precedent ofSharfuddin, the plaintiff,who had not seen thesubstance prior to his fall,

was required to produce evidence as to the amount oftime it had been on the floor. In order to prove thiselement, the plaintiff was forced to rely on the testimonyof the defendant’s employees since the plaintiff could notrely on his own knowledge. However, the employeesrarely saw the substance before the accident and usuallycould not be of any assistance. The plaintiff was left withno evidence to support his claim and again faced aninevitable dismissal on a motion for summary judgment.Robinson had given the slip and fall plaintiff a newchance to reach a jury, only to have that opportunitycrushed by Sharfuddin.

Realizing that it had created a pitfall similar to theAlterman Foods test, the Court of Appeals refined thedoctrine of Sharfuddin in the decision of Straughter v. J.H. Harvey Co.29 In Straughter, the plaintiff slipped andfell on a green, leafy object in the produce section ofdefendant’s grocery. The plaintiff admitted that there wereno employees in the vicinity of her fall and that she didnot know how long the object had been on the floor. Thedefendant offered no evidence as to the reasonableness ofits inspection procedure except for the affidavit of themanager who stated that the store had a policy of sweep-ing the floor every two to three hours.

The defendant moved for summary judgment sincethe plaintiff could not testify as to the amount of time theobject was on the floor. The court refused to grant sum-

Continued on Page 73

The plain tiff, who had n ot seen thesubstan ce prior to his fall, wasrequired to produce eviden ce as to theamoun t of time it had been on the floor.


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

Contradictory case law and ambiguousstatutory authority make Georgia’slaw of undue influence in gift-makinga relatively unsettled doctrine. TheGeorgia Supreme Court has definedundue influence as “‘the exercise ofsufficient control over the person, the

validity of whose act is brought in question, to destroy hisfree agency and constrain him to do what he would nothave done if such control had not been exercised.’”1 As inthe context of wills, translating this standard into aworkable rule for invalidating inter vivos gifts has led to avariety of legal presumptions and evidentiary rules thatoften are uncertain in their application and in their effect.2

Although the Georgia code has codified the common lawdefinition of undue influence in wills, as discussed later,

Georgia’s Lawof Undue Influence

in Gift-MakingBy Bertram L. Levy and Robert P. Bartlett III

the statutory provision governing undue influence in gift-making conflicts with the majority of cases that haveaddressed the issue.3 Drawing on judicial and statutorymaterials, this article seeks to provide an integratedunderstanding of Georgia’s law of undue influence in gift-making.

In general, a party seeking to set aside a gift under aclaim of undue influence must prove by a preponderanceof the evidence that the beneficiary coerced the grantorinto making the gift at the time of the grant.4 In thisregard, the legal standard governing undue influence ingift-making is the equivalent to the standard governingwills and contracts.5 Nevertheless, three different — andnot always consistent — standards may apply when thebeneficiary of a gift stands in a “confidential relationship”to the grantor. First, a court might simply require a

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showing of “undue influence” — that is, a showing thatthe beneficiary coerced the grantor into making the gift.6

Second, a court might apply a rebuttable presumption ofundue influence,requiring thebeneficiary toshow that thetransaction inquestion tookplace in theabsence of duressor excessivecoercion.7 Lastly, acourt might rely onO.C.G.A. § 44-5-86, the provisiongoverning undueinfluence in gift-making, andrequire only aminimal showingof “influence” toset the gift aside.8

Although courtshave relied oneach of theseapproaches, thefollowing articleargues that therebuttable pre-sumption providesthe most sensibleand authoritativeapproach foranalyzing allega-tions of undueinfluence in gift-giving.

Presumption of Un due In fluen ce inCertain Con fiden tial Relation ships

A. Presumption of Undue Influence in GeneralMost Georgia courts raise a presumption of undue

influence in gifts where the beneficiary stands in aconfidential or fiduciary relationship with the donor, thedonor is of weak mentality, and the beneficiary occupies adominant position.9 The Georgia Supreme Court elabo-rated on this presumption in Trustees of Jesse ParkerWilliams Hospital v. Nisbet .10 There, the widow of JohnNisbet sued to enforce a written contract entered into byCora Williams (then deceased) which promised to pay

Nisbet $210,000 upon the sale of Williams’ stock in theGeorgia, Florida & Alabama Railroad Company.11

After an adverse judgment, the administrators of theWilliams’ estatealleged error forfailure to instructon the presump-tion of undueinfluence inconfidentialrelations. Theyasserted that Mrs.Williams hadbeen in an inti-mate relationshipwith Mr. Nisbet,had trusted himentirely, and hadbecome depen-dent on hisfinancial advice.12

Moreover, theypresented evi-dence indicatingthat her mentalcondition was“subnormal”because of herillness andmedications.13 Asa consequence,they argued, thecontract should bepresumed to havebeen procured byundue influence

absent proof by the plaintiff that the transaction was fairand honest.

The Court agreed with the administrators and re-quired a new trial that would include a jury chargeinstructing the jury that it could presume undue influenceif it found that a confidential relationship existed betweenMrs. Williams and Mr. Nisbet and that Mrs. Williams’mind was “weak.” The Court cited numerous cases fromother jurisdictions applying this presumption to invalidatecontracts, wills, and gifts. It also noted the use of asimilar presumption used in Georgia for determiningwhether a gift made in a confidential relationship wasobtained by fraud.14 According to the Court, the underly-ing rationale of the presumption in the fraud context wasto “‘protect, effectually, weak men from the machinationsof artful men of superior mind . . . .’”15


This protection, the Court opined, was particularlyimportant in confidential relations because “whenever afiduciary or confidential relation exists between theparties to a deed, gift, contract or the like, the law impliesa condition of superiority held by one of the parties overthe other . . . .”16 Thus, the Court rejected the lowercourt’s instructions that the jury had to find that Mr.Nisbet specifically exercised great influence over Mrs.Williams “about this matter.” Rather, the jury should havebeen permitted to infer hisundue influence from theoverall nature of the parties’relationship and Mrs. Will-iams’ debilitated mentalcapacity.17 The burden wouldthen be on the plaintiff to rebutthis inference by showing thatthe transaction was “‘fair,honest and free from fraud orall undue or improper influ-ence of the master-mind. . . .’”18

Despite most Georgiacourts’ acceptance of this formof the presumption of undue influence in confidentialrelationships, a handful of courts have applied one of twovariations of the presumption.

Under the first variation, a challenging party needs toshow only two elements before shifting the burden to thebeneficiary of a gift: that the beneficiary stood in aconfidential relationship with the grantor and that thebeneficiary was the “dominant” party between the two. InMathis v. Hammond,19 for instance, the Georgia SupremeCourt rejected the contention that a grantor of propertymust suffer from “feeble-mindedness” to receive thebenefit of the presumption.20 There, a widower sought tovoid a deed granted by his wife to her daughter. Thedaughter had obtained the deed when her mother wasterminally ill and was residing in the daughter’s home.Although no evidence indicated that the mother sufferedfrom “weakened mentality,” the trial court applied thepresumption. Citing Trustees II, the Supreme Courtupheld the lower court, stating that “‘weakened mentality’covers not only feeble-mindedness but also, in the case ofan elderly grantor, the domination of the grantor by thegrantee, exemplified by the grantee’s provision of shelterand care.”21

Such a strong form of the presumption, however, goesagainst the substantial body of case law requiring ashowing of diminished mental ability for the presumptionto apply.22 Moreover, given that confidential relationsimply a relation of dominance by one of the parties,23 the

reasoning of Mathis would require using the presumptionin every confidential relationship.24 Yet Georgia caseshave repeatedly held that a confidential relationshipbetween the donor and the beneficiary is insufficient byitself to raise the presumption.25 On the contrary, Georgiacourts permit individuals involved in confidential rela-tions to lobby for self-gain.26 Lastly, as a matter of policy,defining the issue as whether a jury sees a “position ofdominance” risks making the vague doctrine of undue

influence even more arbitraryin its application.

In contrast, a secondvariant of the presumptionasserts that the party seekingto invalidate a grant mustshow, in addition to a confi-dential relationship andweakened mental capacity,actual undue influence. Forinstance, in Scurry v. Cook27

the Georgia Supreme Courtstated that undue influence:

may be inferred in all casesof a confidential or quasi-confidential relationshipwhere the power of the person receiving a gift or otherbenefit has been so exerted upon the mind of the do-nor as, by improper acts or circumvention, to haveinduced him to confer the benefits contrary to hisdeliberate judgement, reason, and discretion. In or-der to render a transaction void, it must operate todeprive the donor of his free agency by substitutingfor his will that of another.28

This definition, however, merges the presumptionwith the ordinary proof of undue influence, therebysubstantially increasing the proof necessary to shift theburden to the grantee. As such, it virtually eliminates thepresumption and the administrative benefits it provides:under this alternative standard, juries and judges mustdivine the subjective “will” of the grantor.

Thus, we believe that the presumption of undueinfluence as articulated in Trustees II possesses thestrongest doctrinal pedigree while avoiding the adminis-trative pitfalls of the Scurry variation. Admittedly, underthe Trustees II formulation — in which a party mustestablish a “confidential relationship,” a “position ofdominance,” and “weakened mentality” to receive thebenefit of the presumption — courts must still make thedifficult determination of whether all three factors aresatisfied, but they are not without judicial guidance. Asdiscussed later in the section on evidentiary rules, Geor-

A challen gin g party n eeds toshow that the ben eficiary stoodin a con fiden tial relation ship withthe gran tor an d that theben eficiary was the “domin an t”party between the two.

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gia precedents suggest several evidentiary principles thatcourts may use in determining whether each of thesefactors is satisfied in a particular case.

B. Effect of the PresumptionOnce raised, the presumption of undue influence

throws upon the grantee the burden of establishing thefairness of the transaction.29 Should a grantee fail toproduce evidence of the gift’s fairness, the presumptionmust lead to a judgment against the grantee.30 Nonethe-less, the burden of persuasion remains on the partyseeking to invalidate the instrument.31

Thus, in a case involving the challenge of a gift ofstock on the ground of undue influence, the burdens ofproof applied as follows: The challenger bore the initialburden of establishing a prima facie case indicating thegrantor was of “weak mentality,” that the grantee occu-pied a position of dominance over the grantor at the timeof the transaction, and that the beneficiary stood in aposition of confidential relationship with the grantor.Such a showing raised a presumption of undue influence.Upon this showing, the beneficiary had to present evi-dence to rebut the presumption. The challenger at alltimes bore the ultimate burden of proving by a preponder-ance of the evidence that the transaction was, as a resultof the grantor’s mental incompetence, the result of thebeneficiary’s exercise of undue influence.32

C. Relation of the Presumption of Undue Influence toO.C.G.A. § 44-5-86In addition to case law, the Georgia Code also pro-

vides for the avoidance of gifts due to the presence ofundue influence. O.C.G.A. § 44-5-86 states:

[a] gift by a person who is just over the age of major-ity or who is particularly susceptible to be undulyinfluenced by his parent, guardian, trustee, attorney,or other person standing in a similar confidential re-lationship to one of such persons shall be closely scru-tinized. Upon the slightest evidence of persuasion orinfluence, such gift shall be declared void at the in-stance of the donor or his legal representative and atany time within five years after the making of suchgift.33

Although this statutory language dates back to the1866 Georgia Code, only a few courts have attempted tointerpret the language, with the courts differing signifi-cantly over how the language affects the legal standard ofundue influence. The first two 19th century cases thatanalyzed the statutory language appeared to interpret it asestablishing a presumption against the validity of gifts

made in confidential relationships. In Sasser v. Sasser,34

for instance, the Georgia Supreme Court affirmed a lowercourt’s ruling that voided a gift from a wife to her hus-band. Relying on the predecessor to O.C.G.A. § 44-5-86,the Supreme Court stated that the conveyance was validonly if the jury affirmatively found that it “was a free andvoluntary gift by the wife to the husband . . . .”35 Simi-larly, in Ralston v. Turpin36 the United States SupremeCourt interpreted the statutory language to require thatgifts made by a ward to his guardian may be upheld onlyif it “appear[s] that they were freely and voluntarilymade, upon full knowledge of the facts, without misrepre-sentation or suppression of material facts by the guard-ian.”37

Two years later, however, the Georgia Supreme Courtrejected this interpretation in Hadden v. Larned,38 al-though it made no reference to either Ralston or Sasser. InHadden, the Court noted that many jurisdictions “treat the[confidential] relation alone as generating a presumptionof undue influence.”39 However, the Court found signifi-cant the statutory requirement that there must be “slightevidence” of undue influence before a gift made in aconfidential relationship will be set aside. When con-trasted with the legal rule in other jurisdictions, thisstatutory requirement made “clear that the code throwsthe weight of the legal presumption in favor of the giftand not against it.”40 Despite the significant conflictbetween Sasser, Ralston, and Hadden, subsequent Geor-gia decisions that considered the statutory language havefailed to address this conflict.41

Georgia cases have further confused the meaning ofO.C.G.A. § 44-5-86 through their uniform silence on therelationship of the statute to Trustees II. 42 Of the eightdecisions that addressed the statute after Trustees II, onlyone decision considered the relationship of Section 44-5-86 to the judicially-crafted presumption of undue influ-ence.

In Armour v. Lunsford,43 two daughters and a grand-son sought to cancel deeds made by their mother andgrandmother. The plaintiffs alleged mental weakness orincapacity on the part of the grantors due to “extreme oldage.” They also alleged that the defendant grantee, wholived with the grantors and was the widow of a deceasedson, exerted undue influence.44 Using a jury instructionthat relied on the statute, the trial court permitted theplaintiffs to prevail on only “slight evidence.”45 TheGeorgia Supreme Court later reversed on differentgrounds;46 however, in the process, the Court contrastedthe instruction with Trustees II, noting vaguely that “[t]hecharge is not construed as an instruction as to what would

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By The Hon. Clarence Seeliger

and The Hon. Cliff Jolliff

IN JANUARY, A LOCAL NEWS-paper reported an incident in which aClayton County man went to hisestranged wife’s apartment carryinga loaded gun. When police arrived atthe scene, the man fired several shotsat the officers. As they took coverbehind a car parked in front of theapartment, the man ran around to theback of the apartment and forced hisway in through the back door. Withhis two children watching, the manshot and killed his wife. Then, hetook the same gun and shot himselfin the head, while the two children,still in shock from the death of theirmother, watched their father die. Theincident ironically occurred the sameday as the couple’s scheduledhearing on the wife’s temporaryrestraining order.1

This recent incident of domesticviolence was especially gruesome.Attention to victims of domesticviolence and issues relating to familyviolence typically heightens on theaftermath of an event like the onedescribed above that happened tocatch the media’s attention becauseof the particularly appalling facts ofthe incident. Sometimes acts offamily violence get coverage be-cause they involve a high profilepublic figure or a celebrity.

The vast majority of incidents,however, do not receive any public-ity. Literally thousands of spousesand children suffer from violence

F E A T U R E S

FAMILY VIOLENCE IN GEORGIA

The Protective Order Registry Pilot Projecteach day in Georgia. They know toowell the effect these crimes have onthem and their families.

In 1998, there were 54,418reported cases of family violence inthis state. Children were involved inalmost 22 percent (11,877) of thetotal incidents. Additionally, 46percent (24,847) of the incidents ofviolence were committed in thepresence of children.2 In the sameyear in Georgia, approximately50,000 calls were made to domesticviolence crisis lines and familyviolence programs served approxi-mately 18,000 adults and 10,000children.3

Nationally, a woman is physi-cally abused every nine seconds, orabout two to four million womenannually. Studies show that batteringis the leading cause of injury towomen in this country, and between15 and 25 percent of pregnantwomen are battered. Studies alsoindicate that child abuse is 15 timesmore likely to occur in familieswhere a parent is battered.4 Whilethe statistics are staggering, it islikely they are incomplete sincemany victims will not talk about,much less report to the police, acts ofviolence against them for fear ofwhat might happen the next timethey are victimized.

The Georgia Commissionon Family Violen ce

Recognizing the growingnumbers of reported and suspected

unreported incidents relating todomestic violence, the GeorgiaGeneral Assembly during the 1992legislative session passed legislationcreating the Georgia Commission onFamily Violence (“Commission”).The General Assembly stated itsintent in the statute, in pertinent part,as follows:

The General Assembly has en-acted comprehensive legislationaddressing family violence, in-cluding provision for the issuanceof temporary protective orders toprotect individuals from violence.It has become evident that en-forcement of these laws is incon-sistent and an effective responseto family violence will require acomprehensive community effortas well as coordination among thecourts, prosecutors, law enforce-ment agencies, the correctionalsystem, and public assistance andother service providers.5

The 1992 statute created a 37-member Commission composed oflawyers, advocates, legislators,prosecutors, judges, sheriffs andothers with specific interest in theseissues.6 Since 1992, the Commissionhas been responsible for a variety oftasks including conducting compre-hensive studies, coordinating com-munity task forces on the local level,creating various protocols to dealappropriately with incidents ofdomestic violence, and trainingvictim’s advocates, law enforcement

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personnel and others involved inissues relating to family violence.

The Commission also hasworked with judges, lawyers,advocates and law enforcementpersonnel in making certain victimsare receiving all of the protectioncontemplated under Georgia’sFamily Violence Act.7 Perhaps themost effective mechanisms in theAct are the provisions in the law thatgive the victim the ability to have atemporary protective order issuedagainst the abuser.8

To obtain such an order, a victimmust file a petition with the courtthat alleges specific facts thatprobable cause exists to establishthat family violence has occurred inthe past and may occur in the future.The court is authorized to grant anorder providing such temporaryrelief ex parte as “it deems necessaryto protect the petitioner or a minor ofthe household from violence.”9

Within 10 days of the filing of thepetition or “as soon as practicalthereafter, but in no case later than30 days after the filing of the peti-tion,” a hearing must be held atwhich the petitioner must prove theallegations contained in the petitionby a preponderance of the evidenceas in other civil cases.10 At the firsthearing, the court may grant a six-month protective order.11

Protection to the victim in theform of a temporary order or a six-month protective order is vital to thesafety of the victim and the victim’schildren. When the court grants an exparte or a six-month order, the victimand the respondent get a copy of theorder and the court retains a copy.

Why a Protective OrderRegistry is Needed

While the availability of protec-tive orders under the Act has im-proved, enforcement is still a signifi-cant problem. What happens when

the victim misplaces an order, mustflee for safety to another jurisdictionand leaves the order behind? Or,what if a law enforcement officer iscalled to a residence in which aprotective order is issued, but thevictim cannot find her order and it isduring the night or on a weekendwhen law enforcement officers maynot have access to court files?

Approximately 36 states acrossthe country have protective orderregistries in place and another 11states are developing protectiveorder registries.12 Currently, Georgiadoes not have a centralized system inplace for tracking active protectiveorders issued in this state. Thisinability to track orders during thenight and on weekends and to allowother states access to active ordersissued by Georgia courts puts thevictim and law enforcement officersat a distinct disadvantage.

In Georgia and other states withno centralized database for protec-tive orders, when a victim is grantedprotection from the court, she mustbe responsible for possessing a copyof her protective order at all times

during the period of protection.Many victims of domestic violenceare placed in threatening situationseven after a protective order isissued, and oftentimes, the victimflees from the jurisdiction in whichthe order was issued. If, in her hasteto flee, she leaves behind the order,she is in an unfortunate situation inthe new jurisdiction because lawenforcement officers and judgeswould have no way to quickly verifythe existence and validity of herorder.

Quite often, the woman’s safetyis placed in peril during the weekendor in the evening when court person-nel in the issuing jurisdiction are notavailable for questions about theexistence or content of a protectiveorder. Even in situations in which thevictim has a copy of the order, butmust flee to another state for safety,she must notify the court in the newjurisdiction that she has a protectiveorder and ask that court to enforcethe order in that state.

Federal LegislationThe United States Congress in

1994 recognized that a centralizeddatabase for tracking protectiveorders is a necessary component toensure a victim’s safety. With theenactment of the federal ViolenceAgainst Women’s Act (“VAWA”),Congress gave states an opportunityto apply for federal grant money todevelop registries that would belinked to the National Crime Infor-mation Center (“NCIC”) so that lawenforcement officers and judgescould easily and expediently deter-mine the existence and validity of aprotective order.13 Under VAWA,states are required to extend full faithand credit to protective orders issuedin states from which battered womenhave fled.14 Additionally, underVAWA, once a hearing is held on thetemporary protective order, of which

Georgia does n ot havea cen tralized systemfor trackin g activeprotective ordersissued in this state.This in ability to trackorders puts the victiman d law en forcemen tofficers at a distin ctdisadvan tage.


the respondent received notice andan opportunity to be heard, therespondent is prohibited frompossessing, receiving or transportinga firearm or ammunition.15

In early 1999, the GeorgiaBureau of Investigation (“GBI”)applied for a grant under the Depart-ment of Justice and received federalfunding to begin the development ofa registry in Georgia. The GeorgiaCommission on Family Violence isserving as the pass-through for thesefunds and is spearheading the pilotphase of the Protective Order Regis-try Project.

Georgia’s ProtectiveOrder Registry Project

Last year, the Georgia Commis-sion on Family Violence created aSteering Committee (“Committee”)to assist in the establishment of aProtective Order Registry PilotProject (“Project”) in Georgia.16 TheCommittee, composed of lawyers,judges, victim advocates and otherinterested parties, drew from otherstates that have operational regis-tries, studied the various proceduresfor getting orders to the registries inthese states and developed a modelfor the Georgia Registry. Severalstates, including Louisiana, Ken-tucky and New York, are distin-guished as having registries withexcellent track records in terms of:(1) expediency — i.e., the time ittakes to get orders into the registryonce the judge issues the orders; (2)accuracy — i.e., the percentage oforders in the registry having correctinformation; (3) inclusiveness — i.e.,the number of active orders in theregistry closely matches the numberof active orders issued by the courts;and (4) the ability to accurately linkinformation from the registry to theNCIC Protective Order File (“POF”)— the national data base that givesjudges and law enforcement person-

nel in every state access to informa-tion about protective orders inforeign jurisdictions.17

The Committee decided to usethe Louisiana registry as the primarymodel for a registry in this state. TheLouisiana registry is located in thestate’s office of the courts. Full-timestate employees oversee the registryin the development of technology,modification of the registry andrevisions to standardized protectiveorder forms. In developing theLouisiana registry, court personnelfound that the only way to managethe flow of information into theregistry was to develop standardizedprotective order forms for all judgesin the state. Additionally, courtpersonnel developing the registryfound that the simplest way to getinformation from the court to theregistry was to ask the clerks of courtto fax the orders to the registry.Scanning orders directly into theregistry proved unsuccessful becausemany judges wrote in margins, onthe back of orders or the handwritingdid not scan properly. Louisiananow has enabling legislation thatrequires judges to use the standard-ized forms and requires the clerks ofcourt to fax orders to the registry.18

Georgia’s Pilot PhaseIn the first phase of Georgia’s

Pilot Project, four counties agreed toserve as pilot sites: Cherokee, Hall,Douglas and Wheeler Counties.Other counties are expressinginterest and may be added as pilotsites during this phase. Protectiveorders issued by judges in these siteswill be faxed to the Commission forentry into the Registry. Data entryclerks will enter the data and proof-read for accuracy. During the pilotphase, only Commission personneland persons contracted to work withthe Project will be privy to informa-tion in the Registry. To fully imple-

ment the Registry, county clerks ofcourt would be required to sendprotective orders for entry into theRegistry. When all phases of theProject are complete, informationcollected in the Registry will be sentto the Georgia Crime InformationCenter (“GCIC”) and the NCIC. Lawenforcement agencies and judges inGeorgia and across the countryeventually will have access toinformation about active protectiveorders issued by Georgia courts.

During the pilot phase of thisProject, which is expected to culmi-nate July 31, 2000, the Project’sSteering Committee will closelymonitor the pilot sites’ experiencesand continue to fine-tune the Regis-try and the standardized protectiveorder forms. The Committee alsowill be working with members of thebench, bar and law enforcementcommunity, victims’ advocates, andclerks of court to gather input fromthese interested professions.

Use of Stan dardizedProtective Order Forms

States like Louisiana that alreadyhave developed registries report theuse of standardized forms is criticalto the success of a registry. From apractical standpoint, standardizedforms are essential because datafrom these forms will be manuallyentered into a centralized data base.Without a standardized protectiveorder form, more than 159 differentversions of the orders would be sentin for entry into the Registry. Thiswould mean that every order wouldneed careful screening to determinethe relief granted. Moreover, withoutstandard terms in the orders, legalinterpretation of some of the condi-tions undoubtedly would be required.

Beyond practical implications,the Committee found that usage ofstandardized forms also achieves theprovision of a full spectrum of relief

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available under Georgia law, makingit more likely that victims willreceive the types of relief theyrequire. Additionally, standardizedforms can be written so that theterms and conditions are clear andunambiguous, which is crucial to lawenforcement’s ability to enforce aprotective order.

The Committee examinedvarious forms from different courtsand other statewide protective orderregistries to develop the initial forms,which were first sent to the superiorcourt judges for their review andcomments. Additionally, the Com-mittee sought input from variousorganizations that represent or workwith victims of domestic violence.Based on these preliminary com-ments, the revised forms were re-submitted to superior court judges,private attorneys and the chair of theFamily Law Section of the State Barof Georgia. After several moremonths of revisions based on theselawyers’ and judges’ comments, a setof standardized forms was draftedfor use in the pilot sites.

In an effort to provide confor-mity in the pilot sites, the Committeeasked the Supreme Court for anexperimental rule which requiresjudges to use the standardized formsin the pilot sites. In September 1999,the Supreme Court granted theCommittee’s request and judges inthe pilot sites are currently using thestandardized forms for protectiveorders granted under the state’sFamily Violence Act. The rule,which is effective for one year, alsorequires the clerks of court in pilotsites to fax these orders to theCommission within 24 hours of theclose of business on the filing day.

The new standardized protectiveorder forms can be used now by anyjudge and in any court in this stateon a voluntary basis. The Committeeis encouraging judges and lawyersthroughout the state to begin utiliz-

ing them in anticipation of statewideimplementation in 2001. Copies ofthe standardized forms may beobtained from the Commission bycalling (404) 657-3412.

Con clusionIn developing this Project, the

Georgia Commission on FamilyViolence recognizes that improve-ments in the existing system must gobeyond the mere creation of a Regis-try. While promoting the Registry, theCommission will continue to coordi-nate efforts of judges, lawyers, lawenforcement and to offer educationand training to them on the use andenforcement of protective orders forthe protection of victims of familyviolence throughout this state. Theproposed Registry is just one elementof the Commission’s plan to providevictims of family violence in this stateprotection they so desperately need. U

Hon. Clarence Seeliger is a DeKalb County

Superior Court Judge and chair of the Geor-

gia Commission on Family Violence. Hon. Cliff

Joliff is a Hall County Juvenile Court Judge

and chair of the Georgia Protective Order Reg-

istry Pilot Project Steering Committee. The

authors acknowledge the assistance of both

Sheila Chrzan, an attorney with Georgia Le-

gal Services, and Joy Hawkins, an attorney and

project coordinator for the Georgia Protective

Order Registry Pilot Project.

En dn otes1. Bill Montgomery, Man Shoots at

Clayton Cop, Kills Wife, Himself, AT-LANTA J.-CONST., Jan. 21, 2000, at C-4.

2. “1998 Summary Report: UniformCrime Reporting (UCR) Program,Georgia Crime Information Center.”

3. “Domestic Violence in Georgia,”Georgia Department of Human Re-sources, Office of Communications,August 1999.

4. Id.5. O.C.G.A. § 19-13-30(b) (1999).6. Id. § 19-13-32.

7. Id. §§ 19-13-1 to –34.8. Id. §§ 19-13-3, -4.9. Id. § 19-13-3(b).10. Id. § 19-13-3(c).11. Id. § 19-13-4.12. “Protection Order Registry Survey,

Summary Information,” prepared bythe National Center for State Courtsand the Full Faith and Credit Projectof the Pennsylvania Coalition AgainstDomestic Violence, February 1, 2000.

13. 42 U.S.C.A. § 14031 (1995).14. 18 U.S.C.A. § 2265 (Supp. 1999).15. 18 U.S.C. § 922(g) (Supp. 1999).16. The Steering Committee is composed

of the following: Judge Cliff Jolliff,Chair; Rachel Ferencik, Director, Ga.Family Violence Commission; AnneJarrett, Esquire; Sheila Chrzan, Es-quire; Vicky Kimbrell, Esquire; DanBloom, Esquire; Shirley Andrews andRhonda Neal, GBI; Belinda Bingam-an and Major David Bores, CherokeeCo. Sheriff’s Office; Senator GloriaButler; Carol Campbell, GatewayHouse, Hall County; Michael Cucca-ro, Council of Superior Court Judges;Don Forbes, Ga. Courts AutomationCommission; Gail Giles and LisaSills, Ga. Tech Research Institute; Dr.William Holland, GBI; William E.Holland, III, Clerk of Court in HartCounty; Carla Hungate, DouglasCo.’s S.H.A.R.E. House, Inc.;Michelle Johnson and Joe Hood, Ga.Criminal Justice Coordinating Coun-cil; Marla Moore and Holly Sparrow,Administrative Office of the Courts;Alisa Porter, Ga. Coalition on FamilyViolence; Meg Rogers, Director,Cherokee Family Violence Center;Sheriff Scott Chitwood, Whitfield Co.Sheriff’s Office; Senator Steve Th-ompson; and Joy Hawkins, ProtectiveOrder Registry Pilot Project Coordi-nator.

17. Interview with Mary Malefyt, StaffAttorney, Full Faith and CreditProject of the Pennsylvania CoalitionAgainst Domestic Violence (Feb. 17,2000).

18. La. Rev. Stat. Ann. § 44:2136.2(1999).


F E A T U R E S

By William E. Cannon Jr.

The theme of Law Day 1999 is“Celebrate Your Freedom”and I want to focus my

remarks on that theme.When most of us hear the phrase

“Celebrate Your Freedom,” weimmediately begin making a mentallist of the freedoms that are mostimportant to us. I want to interruptyou as you are making your list and

LAW DAY MAY 1, 2000

Celebrate Your Freedomask you to think about the other partof that phrase — Celebration.

We are all familiar with thesacrifices made over the years byAmericans who believed that free-dom was a precious commodity —so valuable that they were willing tosurrender their own lives in defenseof liberty. As we become comfort-able with our freedom there is thedanger that we will forget that thefreedom which was so difficult toobtain can be easily lost. We canbecome so caught up in enjoying ourliberty that we begin to assume thatwe will always be a free people.

If today we but politely acknowl-edge the liberty that has been en-trusted to us, we risk becomingcomplacent about that of whichcitizens of other countries onlydream. Unless we consciouslycelebrate, that is, remember, rejoiceand remind ourselves of the free-doms we now enjoy, we run the riskof forgetting the price that was paidfor them and the importance theyhave in our daily lives. We havecome too far to let that happen.

Do you remember how you feltas school let out for the summer? Wehad smiles on our faces and so muchunbridled joy that we were burstingwith energy. I want us to feel thatsame way today. Freedom is some-thing to shout about! To revel in.Let’s loosen up and celebrate today!

Now it may have been so longsince some of us have really cut

loose that we have forgotten how toconduct a proper celebration. A cakemight be nice but just about everyoccasion is celebrated with a cake.We might go to a restaurant and havethe servers gather around us andloudly sing a song about Law Day.But even those once unique celebra-tions are seen every day. Law Day isspecial and I would like to share withyou some special ways we cancelebrate our freedom.

The first is by practicing toler-ance. Too often we think of freedomfrom a selfish standpoint. That is, weview freedom as our right to dosomething that we want to do. Wemay, of course, talk grandly ofrespecting other persons’ rights to dowhat they want to do, but it is humannature to think of ourselves first.Consciously practicing tolerancetoward other people as they exercisetheir freedom is a needed method ofhonoring Law Day. Instead ofreacting cautiously or suspiciouslywhen we hear something we don’tagree with or see something we don’tlike, let’s resolve today that we willrelish the differences of opinion andvariety of human experiences thatmake this country such a wonderfulexample of what human freedom canaccomplish.

It was only a few years ago that Ifirst had the opportunity to visit thecities of New York and Chicago. Icannot adequately describe the thrillthat I had in seeing such a variety of

The American Bar Association(ABA) Standing Committee onPublic Education presentedWilliam E. Cannon Jr. of Albanywith a Judge Edward R. FinchLaw Day Speech Award duringthe ABA Midyear Meeting.Cannon, the immediate pastpresident of the State Bar, deliv-ered the following speech to theBlue Ridge Circuit Bar Associa-tion as part of their 1999 LawDay festivities. The Finch SpeechAward was created in 1968 byAmbassador Edward R. Finch Jr.in honor of his father, who hadserved as a justice of the SupremeCourt of New York. Law Day wasestablished by President DwightD. Eisenhower in 1958 as anannual observance to strengthenthe American heritage of liberty,justice and equality under thelaw. Law Day is celebratedannually on May 1.

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people. I spent hours just walking thestreets drinking in the smells, thesounds and the sights of so manythings that were so different fromSouthwest Georgia. I will neverforget the absolute joy of thatexperience.

That same sense of joy can befound by understanding ourneighbors and celebrating thevariety of our nation. Wehave Kiwanians and Lions.We have Rotarians who valuevariety so highly that mem-bership rules require diver-sity. In this very state and citywe have eccentrics and plainold-fashioned nuts. We haveDemocrats, Republicans andothers who are running awayfrom both parties. We havepeople who irritate us, makeus angry and scare us. Wehave people who make us cryand people who make uslaugh. Isn’t it just great? Weare not all just alike — wouldn’t thatbe incredibly dull and boring? Andwe have this delightful collection ofpeople because this is one countrywhere everyone has the freedom tojust be themselves. Isn’t that worthcelebrating?

Another way in which we cancelebrate our freedom is to encour-age dissent. That’s right — I saidencourage dissent, not just tolerate it.What is popular or correct today mayhave been unpopular or incorrectyesterday. At some point in timepeople thought the world was flatand that only birds could fly. Wherewould we be if some hard headednon-conformist had not dared todisagree with the conventionalwisdom?

It is easy to speak of freedomwhen everyone agrees with ourpersonal definition of it. It is easy tospeak of tolerance when there are nodiffering viewpoints to challenge ourway of thinking. Freedom thrives on

dissent. Liberty draws strength fromdifferences in opinion exchanged inan unfettered marketplace of ideas.There could be no better celebrationof our freedom than encouraging, notjust allowing, differing points ofview on all issues.

We all revere the First Amend-

ment and lively proclaim our alle-giance to the right to free speech.However, we often forget that theFirst Amendment protects not onlyour right to express our own ideas, italso protects our right to listen toother people’s ideas — especiallythose who disagree with the majoritypoint of view. Dissent and discussioncan invigorate our system of govern-ment and our citizens.

I confess that I am a fan of talkradio, and for some inexplicablereason I enjoy listening to peoplewith whom I disagree. Even thoughmy blood pressure climbs, I some-times talk back to the radio. I seemto be unable to kick the habit. Just asschool children run to a playgroundfight, I cannot resist the sound ofintellectual combat.

However, I’m generally disap-pointed in talk radio because there isso little dissent. A radio host intro-duces a topic of the day and inviteslisteners to call with their comments.

The remainder of the show consistsof callers echoing the same thoughtsexpressed by the host and ridiculinganybody who would dare thinkdifferently. Rarely am I treated to acaller who disagrees. Even more rareis the host who admits that someonewith a different point of view may be

correct on the same issue.What a wasted opportunity.

I yearn for the day whentalk radio will be alive withdiffering ideas — when thehost will be hard pressed todefend ideas and callers willdisagree with each other.Defending our own intellec-tual choices requires that welisten to those who disagreeand that is the element miss-ing from the airwaves today.

Lawyers have a wonderfultradition of lively debate andprincipled dissent coupledwith careful listening. Werecognize and respect the

freedom to disagree. As we celebrateLaw Day annually on May 1, it is myfervent wish that our fondness fordiffering points of view and ourdesire to hear all sides of an issuewill spread throughout our societyand that we will vigorously celebrateour freedom by encouraging dissent.

The third thing we can do tocelebrate our freedom is to acceptthe uncertainty that comes with it. Somuch of the freedom we enjoy todaywas paid for with the lives of count-less patriots who unselfishly foughtto protect us in times of crisis. Thosebrave sacrifices must not and willnot be forgotten. However, we mustalso remember another less wellknown cost of freedom that we allincur every day — the willingness toaccept the accompanying risk thatwe may suffer at the hands of otherswho do not respect the freedom wehave given them.

It is difficult to speak of the risksof freedom at a time when school-

Bill Cannon received the Finch Law Day SpeechAward during the ABA Midyear Meeting. Above are(l-r) President-elect George Mundy; Dawn Cannon;Bill Cannon; Margaret Bush Wilson, ABA Law Daychair; President Rudolph Patterson; and Past Presi-dent Linda Klein.


children lie victim to a senseless act.And yet that terrible tragedy inColorado reminds us that our libertydoes not come without a price. Inenabling our citizens to enjoy a levelof freedom unrivaled by those of anyother nation, we must also realizethat not every one of us will actresponsibly. We will have those whoabuse freedom of speech to spewhatred and bigotry. We will havethose persons who will incorrectlyinterpret due process as a license tocommit crimes of violence. Theymust not be allowed to compoundtheir crimes by taking from us ourfreedom as well.

At a civic club meeting lastweek, I overheard a member discuss-ing conditions in an Asian countrynot known for its devotion to per-sonal freedom. He remarked that thestreets were clean, there was nograffiti on buildings, and even those

who committed simple misdemean-ors were treated severely. Thisperson concluded his remarks bystating his admiration for such asociety and suggesting that theUnited States should become morelike that as a solution to headline-grabbing acts of violence.

We must not succumb to thesiren song of easy solutions, whichgradually erodes our basic freedoms.Instead, we must remember that eachcitizen pays a daily price for theliberties we enjoy. At times we maybe in fear, at times we may encounterothers who do not respect our rights,and in such times we may wish thatlife were simpler. However, ourcherished freedom should not be soeasily abandoned.

The events at Columbine HighSchool remind us that freedom is notall pleasure and happiness. This wasone of those occasions when we see

the stark reminder of its real cost.While we grieve for those who havepaid the ultimate price, we alsohonor their memories by reaffirmingour commitment to maintaining thelight of freedom even in this periodof darkness.

In closing, I ask lawyers andjudges everywhere to celebrate ourfreedom by becoming better at whatwe do. We can work harder atoffering better services to our clientsand to the public to increase under-standing of our system of justice andfoster a willingness to vigorouslydefend it. We can joyfully representunpopular people and unpopularcauses in the knowledge that we aresecuring the full protection of libertyfor everyone else. We can remind thepublic at every opportunity that therights we speak of today are not justancient words of the 18th centurythat no longer have force today, butare an integral part of our daily lives.

Recently I was discussing theconflict in Kosovo with a judge andit prompted an interesting commentfrom him. The judge had excludedcertain evidence that was obtained ina search which he considered toviolate protections guaranteed by theConstitution and he explained thathis ruling on a routine motion in atypical criminal case was directlyrelated to our conversation. As thejudge so correctly pointed out, ourcountry’s reverence for personalfreedom in even insignificant, smallcriminal cases marks the differencebetween the freedom in this countryand that which is missing in coun-tries such as Yugoslavia.

That judge recognized andcelebrated the freedom we all enjoyevery day and often take for granted.Let us resolve this Law Day that wewill not forget. Celebrate, rejoice,remember! Our freedom was wonwith great sacrifice but can be lostwith ease. U

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west new fullpage, b & w“differnece of opinion


F E A T U R E S

I have known Judge BillWilson since he was President ofthe Arkansas Bar and I wasPresident of the State Bar ofGeorgia 15 years ago. We haveremained friends since then.Before President Clinton madeJudge Wilson his first appoint-ment to the district court bench in1993, Judge Wilson was anArkansas trial lawyer whoselegendary rapport with juries andpassion for his clients took him toalmost every courthouse inArkansas. Besides having a finelegal mind, Bill Wilson is blessedwith both a first-rate sense ofhumor and a great deal ofcommon sense — qualities thatare essential if a judge is tosurvive for the long haul, andqualities that are apparent in hiscommencement address thatfollows.

— Judge Duross Fitzpatrick

University of Arkansas atFayetteville, 1999 Law School

Commencement

By Judge William Wilson

Chancellor White, DeanStrickman, fellow platformsitters, graduates, their

families, friends of the University —I relate an old, old chestnut. Iwould apologize for telling thisthrice-told tale, but I feel compelledbecause it is so appropriate to my

‘Be a Drum Major for Justice’appearance here today.

The gates were about to open atthe Kentucky Derby when a mulejumped out of the mule pen andjoined the race. He came in dead last,of course. When he jumped back inthe mule pen, the other mulesscolded him for his audacity. Hereplied, “I thought the associationwith thoroughbreds would do me aworld of good.”

When you read the list ofluminaries who have stood at thislectern for previous graduations, youcan see why this little story is so apt.

As many of you know, the lateVincent Foster Jr. was a graduate ofthis law school — number one in hisclass. He then made the highestgrade on the bar examination thatyear. Six years ago — not longbefore his untimely death — he gavethe commencement address. In myjudgment, it is the high watermark ofcommencement addresses. I wassorely tempted, for my part, simplyto make copies of his address andhand it out to you to read at yourleisure. Ultimately I decided that itwould be considered a little unto-ward — unusual at least — if I didn’taddress you at all. Still, I want toshare a small portion of Vince’s greattalk. I think the part I quote willserve to encourage those of you whowere not at or near the top of theclass, and it may serve a word to thewise for those of you who have madetop marks. Please listen to Vince:

Some of you have earned spe-cial recognition this afternoon,

and we all congratulate you…But, tomorrow, my friends, theslate is wiped clean again. Pro-spective clients don’t inquireabout class rank. The local barassociation you will join doesnot have a special class of mem-bership for law review staffs.Judges and jurors will not askto see your resume.You will be evaluated instead byyour product, your energy, yourtemperament and your back-bone. The reputation you de-velop for intellectual and ethi-cal integrity will be your great-est asset or your worst enemy.You will be judged by yourjudgment.

Let me put this last thought in amore roughhewn way: Strive to bethat type of lawyer about whomother lawyers will say, “I wouldshoot craps with her over the tele-phone.”

Dean Strickman, I feel electricityin the air today. It may partially bebecause I know there may be oneamong these graduates who will riseto the top of the legal profession andone day sit on the Supreme Court ofthe United States — a latter dayJustice Oliver Wendell Holmes Jr.There may be one or more of theseyoung people who will becomegreat, nationally known lawyers orlaw professors. There may be a greatelected official sitting before us — a21st Century Daniel Webster.

There may be some who willleave this profession and rise to the

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heights in other callings. There mightbe one with us today who willbecome a great religious leader,persuading the nations of the earth tobeat their swords into plowshares.

All of these are exciting possi-bilities, but I feel the electricityprimarily because I know there aremany in this class who will leavehere and go to county seat townsacross Arkansas and across America.They will become top-of-the-linecounty seat lawyers. And theselawyers are, in my opinion, thebackbone of our beloved profession,and they are the backbone of ourunequaled justice system.

I believe it was PresidentTruman who said there is nothing allthat mysterious about the qualifica-tions for the Supreme Court of theUnited States. He opined that everycounty seat town in America with apopulation of over 10,000 had apotential great Supreme Court justicepracticing within its corporate limits.I would disagree with this postula-tion only in the size of the countyseat town. I would at least cut it inhalf to 5,000.

My hat is off to those lawyerswho practice in the county seattowns and represent the citizens bydrafting their deeds, drawing theirwills, representing them in SocialSecurity cases and in personal injurycases. These lawyers will draw thearticles of incorporation for a grow-ing new business in that county, andthis business, along with others, willmake the community more prosper-ous. From time to time, these law-yers will represent the son or daugh-ter who has been raised with lovingcare, but who has run afoul of thelaw.

The citizens of this country puttheir property, their livelihood, theirhopes, their dreams and sometimestheir freedom and even their lives inthe hands of these stalwart lawyers.

I do not believe it is farfetched to

say that these lawyers are, indeed,the trustees of liberty. But this is soonly if we look beyond the mechan-ics of drafting a will, drawing acomplaint, putting the witness on thestand, and the like. We must, amongother things, steep ourselves in thehistory of our Constitution, espe-cially the Bill of Rights and most of

the other amendments. I believe thatit was Learned Hand, the great juristof two generations ago, who wrotesomething to the effect that we willnot have our rights and privileges inAmerica because our Constitution iswritten on a certain type of parch-ment, and preserved carefully at ournation’s capital. We will have theserights and liberties only as long asthey exist in the hearts and minds ofthe people.

And, I submit that you — brandnew lawyers now — must take thetorch and preach the gospel ofindividual liberty and individualrights — and, lest we forget, indi-

vidual responsibility.I am one of those who believes

that there truly was a miracle inPhiladelphia during that dreadfullyhot summer of 1787 — not a perfectmiracle to be sure, but a miracleimproved upon by most of theamendments which are, in myjudgment, also part and parcel of thismiracle.

In the words of the saintedAbraham Lincoln, the miracle of thisgovernment “sprung forth upon thiscontinent.”

What are you to do to be es-teemed as a lawyer? Listen to thewords written by Chief JusticeCharles Evans Hughes many, manyyears ago:

The highest reward that cancome to a lawyer is the esteemof his professional brethren.That esteem is won in uniqueconditions and proceeds froman impartial judgment of profes-sional rivals. It cannot be pur-chased. It cannot be artificiallycreated. It cannot be gained byartifice on contrivance to attractpublic attention. It is not mea-sured by pecuniary gains. It isan esteem which is born in sharpcontests and thrives despite con-flicting interests. It is an esteemcommanded solely by integrityof character and by brains andskill in the honorable perfor-mance of professional duty. . . .In a world of imperfect humans,the faults of human clay are al-ways manifest. The specialtemptations and tests of lawyersare obvious enough. But, con-sidering trial and error, successand defeat, the bar slowlymakes its estimate and thememory of the careers which itapproves are at once its mostprecious heritage and an impor-tant safeguard of the interests ofsociety so largely in the keep-

My hat is off to thoselawyers who practicein the coun ty seattown s . . . The citizen sof this coun try puttheir property, theirlivelihood, their hopes,their dreams an dsometimes theirfreedom an d even theirlives in the han ds ofthese stalwart lawyers.


Morningstar new

ing of the profession of the lawin its manifold services. . . .

I can testify, here and now, basedupon my 35 years at the bar: Youwill enjoy the money you will earnas a lawyer; you will enjoy anyfavorable publicity you get (keep inmind, however, that publicity iscotton candy). But what you willcherish most is the esteem of yoursister and brother lawyers andjudges. I give you my solemn wordon this.

Not long before his death,

Martin Luther King Jr. talked to anaudience about his own funeral. Notin a morbid way, but in a realisticway. He said that first of all, hewanted a short funeral. He said thathe did not want his eulogist tomention his Nobel Peace Prize, norhis many honorary degrees — hecontended that these were nowiseimportant.

He said he hoped his eulogistcould say that Martin Luther King Jr.tried to feed the hungry; that MartinLuther King Jr. tried to care for thesick; that Martin Luther King Jr.

tried to visit those who were inprison. And, finally, he hoped thathis eulogist could say that MartinLuther King Jr. was a drum major forjustice!

Ladies and gentlemen of thisgraduating class, when you have runyour course — when the shadow ofyour professional career is falling farto the east — and your final reportcard is about to be issued, wouldn’tyou like to have it entered that youwere a drum major for justice!

Thank you for having me. U

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REMEMBER,FAMILY MATTERS

By Joseph W. Dent

The title of my column maysuggest that it deals withfamily law issues. However,

this article is written to give myperspective of, and remind everyoneabout, the importance of a strongfamily.

I consider myself fortunate,because I had the benefit of growingup in the old-fashioned Americanfamily unit. I guess you could saymy family life was reminiscent of“Leave It to Beaver.” During myelementary school days, I rememberthe entire family gathering aroundthe dinner table each night. We alsohad big lunches on Sundays, usuallywith relatives, following a morningof church services.

When my oldest brother enteredcollege, things around the housebecame more hectic. In the late ‘70s,the fast-paced world that we knownow was just getting underway. Asthe tuition for my brother’s collegebegan to mount, my mother wentback to work full-time. She hadworked part-time while I was inelementary school and was alwayshome when the bus dropped me off.The nightly meals began to slow, butI remember we still continued withour big Sunday lunches.

My brother going to college wasnot the only reason the Leave-It-to-

Beaver-style weekly meals began toslow. My other brother and I were inhigh school and junior high, respec-tively, and we were involved in allsorts of extracurricular activities.

Our family was living, in theearly 80s, what was considered ahigh-speed life. I look back, and Icherish the early years when wegathered for dinner each night. Whenwe became fast-paced, we did not

forget those values, and we contin-ued with our Sunday lunches.Basically, Sunday became familyday.

My point is that, although myfamily began to move rapidly andmy brothers and I went to collegeand began our endeavors in ourrespective careers, we still remem-bered our core value of the familyunit from which we began. Mymother has always reminded us ofthe importance of our family, and wecontinue to gather two to three timesa year even though we all have ourown Y2K lifestyles.

Both my brothers are marriedand each has a boy and a girl — bytoday’s standards, the perfect family.One of my favorite joys is visitingand spending time with my nieces

and nephews. I cannot tell you thejoy I feel when I arrive to excitedcheers of “Uncle Joe is here! UncleJoe is here!”

As I reflect on my year asPresident of the YLD, I have a vividmemory of the brunch which fol-lowed my swearing-in ceremony.That memory is my mother and twobrothers being present with smiles ontheir faces and words of support andcongratulations. It certainly made mefeel proud.

I guess what I am trying to stressis that, in today’s fast-paced world,we (myself included) may findourselves missing the importance ofa strong family. There is a lot to besaid about the good old days and the“Ozzie and Harriet” family lifestyle.

Whether you are married withchildren, married with no children orjust plain old single like me, do notforget to keep your calendar clear forold-fashioned quality time with yourfamily. If you have children, take anafternoon off and go to the park, orbring the kids down to the office oneday so they can see what mommy ordaddy does. And as spring andsummer arrive, do not forget toattend those baseball, softball orsoccer games. Why, you may evenconsider coaching!

If you do not have children,remember your nieces and nephews.Go to that kindergarten graduation orthat championship little-leaguefootball game. Also, take a longweekend to go back home. I think ifyou dedicate just a little bit of time toyour family, you will find your qualityof life will improve immensely.

As I close this article, I amreminded of a couple of old adages:

“Blood is thicker than water”and “your family is all you’vegot.”

So please, do not forget —family matters. U

If you dedicate just alittle bit of time to yourfamily, you will fin dyour quality of life willimprove immen sely.


DONATIONS AND VOLUNTEERS NEEDED

Celebrating Foster Kids’ AccomplishmentsCELEBRATION OF EXCELLENCEis an event acknowledging the accom-plishments of youth in foster care whohave graduated from high school,vocational school, college or obtainedtheir GED. The Celebration recognizesyouth who were removed from theirparents’ custody, were never adoptedand against the odds, accomplishedtheir educational goals.

We will honor over 165 gradu-ates from across the state on June 22,

2000, at the Fulton County Govern-ment Building. We want to give ouryouth a special event in Atlanta.Since we recognize that many of thefoster parents would be unable tohelp their children attend the celebra-tion, we want to provide for ouryouth without imposing a financialburden on the foster families.

We have begun our fundraisingefforts and need your donations. Thisyear we have instituted a scholarship

program for eligiblestudents going tocollege. If you knowof foster kids whomay be eligible for acollege scholarship,pass this informationon to them. We willmake ten $1,000scholarship awards.

The Celebrationof Excellence issponsored by theGeorgia Associationof Homes andServices for Children(GAHSC), a non-profit organizationthat advocates forchildren and isorganized by aplanning committee.The committeeconsists of volunteerswho are attorneysfrom the YLDJuvenile Law Com-mittee of the State

Bar, caseworkers of the Division ofFamily and Children Services, childadvocates, and community activistswho work in the juvenile law field.To make a tax-deductible contributionto the scholarship program or to findout more about the scholarshipprogram, contact Annette VanDevere,Director, Celebration of ExcellenceGAHSC, 34 Peachtree Street, NW,Suite 710, Atlanta, Georgia, 30303;(404) 572-6170;www.excellencega.org.

The Celebration of Excellencehas expanded its program into theadvocacy arena. Through our re-search, we have learned that theCalifornia Youth Connection (CYC)is a design model for implementingprograms yielding empowered fosteryouth. CYC is an advocacy/youthleadership organization for currentand former foster youth. The mem-bers, because of their experienceswith the child welfare system, workto improve foster care, to educate thepublic and policy makers aboutpertinent issues, and to change thenegative stereotypes many peopleassociate with foster youth. TheCelebration has been in communica-tion with them and has developed aprogram model. We need interestedvolunteers who would be willing towork with this new youth initiative.Areas in need include giving presen-tations on advocacy, the legislativeprocess, etc. All interested shouldcall Annette VanDevere at (404)572-6170; www.gahsc.org/clac.Thank you for your assistance. U

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The Grady Knights Mock Trial team is the 2000 Georgia State Champion. In a finalist re-match from the 1999 competition, the team fromHenry W. Grady High School in Atlanta met the team from Clarke Central High School in Athens, a school that held the state title for twoyears and won the national championship in 1999. This time, Grady walked away the victor and will represent Georgia at the National HighSchool Mock Trial Championship to be held May 11-14, 2000, in Columbia, South Carolina.

The Georgia Mock Trial Competition reported gains in its 13th season in several categories. More schools participated than ever before,and over 100 new attorneys and judges participated in judging panels across the state. The following teams were named regional champions:

For information on how your bar association, firm or legal organization can help the new Georgia champion defray competition expenses,contact the Mock Trial office at (404) 527-8779, (800) 334-6865 (ext. 779), or [email protected].

Judges and evaluators are needed in Columbia, S.C., on Friday and Saturday, May 12th and 13th, to serve on the judging panels scoringthe 42 state teams participating in the tournament. If you are able to serve, please volunteer by contacting the Mock Trial office. Judges andattorneys from South Carolina were very helpful to Georgia when it hosted the 1993 tournament, and we would like to reciprocate in 2000.Information on the national tournament may be found online at: http://www.scbar.org/LRE/National_Mock_Trials/National_Mock_Trials_home.htm

SCHOOL/CITY REGION ATTORNEY COACHES

Central High School, MaconMary Anne Richardson, Teacher

Central GeorgiaJay Dell, Coordinator

John Makowski, Thomas F. Richardson, Michelle Schieber

Chattahoochee High School, AlpharettaGerri Hilliard, Mary Reeves, Teachers

Fulton CountyPatrick Moore, Coordinator

Sandra Bourbon, Fred Burkey, Sheila Chrzan,Jeffrey M. Fishman, Bob Kirby

Clarke Central High School, Athens GeorgeHarwood, Joyce Harrison, Phyllis Field, Teachers

Northeast GeorgiaSteve Curtis, Coordinator

Todd Brooks, Rich Connelly, Tom Eaton, Kevin Gonzales,Marcy Gonzales, Elizabeth Grant, Jason B. Green, PhillipGriffeth, Allison Mauldin, Kenneth Mauldin, Ralph Powell,Cindy Wang, Maria Waters

Clinch County High School, HomervilleGloria Peagler, Teacher

Coastal GeorgiaDonna Crossland, Coordinator

Cathy Helms, Jeff Helms

Duluth High School, DuluthMary Anne Meeks, Mary Lester, Geri Flanary,Teachers

Gwinnett CountyShawn Story, Coordinator

Edwin Hamilton, Hillary Krepistman, Evan Mermelstein,David Miller, John Salter, Dawn Taylor, James Taylor

Henry W. Grady High School, Atlanta Metro AtlantaFaison Middleton, Coordinator

Michelle Appelrouth, Carl Gebo, DeAnn Gibson, CarrieHanlon, Jennifer Murphy, Adam Princenthal, AndrewSheldon, Steffanie Walke

Lee County High School, LeesburgKathy Thurman, Teacher

Southwest GeorgiaSusan Huff, Coordinator

Craig Mathis, Edward Meeks, Ralph Scoccimaro

North Forsyth High School, CummingKathy Vail, Jeremy Hamm, Teachers

Cherokee CountyMeredith Ditchen, Coordinator

William Finch, Frank Hamilton, Amy Hillman

Northwest Whitfield County High School,Tunnel HillEva Hendrix, Mandy Smith, Teachers

Northern GeorgiaJeff Denny, George Govignon, Chris Twyman,Coordinators

Rick Brown, Todd M. Johnson, Matthew Thames

Redan High School, Stone MountainKim Chandler, Karyn Williams, Teachers

DeKalb CountyStacy Levy, Coordinator

Lawrence Delan, Letitia Delan, Sheryl McCalla,James Michael

Riverdale High School, RiverdaleStacy Niedermeyer, Mary Roberts, Teachers

Clayton CountyDonna Sims, Coordinator

Judge Clara Bucci, Cheryl Champion, Suellen Fleming,Rolf Jones, Steve Smith

The Walker School, MariettaFred McCaleb, Teacher

Douglas CountyJeff Richards, Coordinator

Jay Bennett, Judge Michael Bozeman, Judge MelodieClayton, Stephen Goldner, Judge Michael Stoddard

Windsor Forest High School, SavannahRichard Clifton, Teacher

Southeast GeorgiaChristy Barker, Coordinator

Larry Chisolm, Lisa Gray, Dennis Keene, Mike Schiavone,Mark Smith

Grady HighWins State Title


2000 Law School Orien tation son Profession alismAttorn ey Volun teer Form

Full Name (Mr./Ms.) ______________________________

Nickname: _____________________________________

Address: ______________________________________

_____________________________________________

_____________________________________________

Telephone: _________________ Fax: _______________

Area(s) of Practice: ______________________________

Year Admitted to the Georgia Bar: ___________________

Bar#: _________________________________________

Reason for Volunteering: __________________________

_____________________________________________

_____________________________________________

Law schools Date Time Reception/Lunch

Emory I* August, 2000 TBAEmory II* October, 2000 TBAEmory III* February, 2001 TBAGeorgia State August 15, 2000 TBAMercer August 18, 2000 2-4 p.m. 4- 5 p.m.UGA August 14, 2000 2-4 p.m. 4 -5 p.m.

*Emory has expanded its Orientation to three sessions.

Please return to:State Bar Committee on Professionalism

Attn.: Terie Latala800 The Hurt Building

50 Hurt PlazaAtlanta, Georgia 30303

phone (404) 527-8768; fax (404) 527-8711

Sign Up For Orientationson ProfessionalismTHE ORIENTATIONS ON PROFESSIONALISMconducted by the State Bar Committee on Professional-ism and the Chief Justice’s Commission on Professional-ism at each of the state’s law schools have become apermanent part of the orientation process for entering lawstudents. The Committee is now seeking lawyers andjudges to volunteer from across the state to return to youralma maters or to any of the schools to help give backpart of what the profession has given you by dedicating ahalf-day of your time this August to introduce the conceptof professionalism to first-year students. U

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Legal ClinicAids TornadoVictimsON SATURDAY, FEBRUARY 26,2000, a free legal clinic was held from10 a.m. to 1 p.m. in Omega, Georgiafor victims of the recent tornado. TheFirst Baptist Church in Omega wasdesignated as the disaster reliefheadquarters, and storm victimsgathered there to receive hot meals andassistance in restructuring their lives.

Photo 1: Tifton Judicial CircuitBar Association volunteers gatheredat the church headquarters to answerquestions about: landlord/tenantissues; repair contracts; insurancesettlements; unemployment insur-ance; and lost documents. Amongthe group of volunteers were twoSpanish interpreters. Photo 2: (l-r)Herby Benson, David Bryan andBrent Hyde of the Tifton Bar volun-teered their services. Photo 3: Tiftonattorney David Bryan and GeorgiaLegal Services Program (GLSP)attorney Debra Jenkins go throughfiles. Photo 4: Supplies were gener-ously donated to assist storm vic-tims. Photo 5: The GLSP staffincluding (l-r) Nancy Anderson(attorney for the Valdosta branch),Sylvia Camargo (paralegal for theTifton branch), Debra Jenkins(attorney for the Valdosta branch)and Marc D’Antonio (SupervisingAttorney for the Columbus branch)also came to the rescue. Photo 6:Storm victims, volunteers and FEMArepresentatives all shared lunch atthe church. U

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In Atlan taSmith, Gambrell & Russell

LLP has elected David J. Burge andRobert H.G. Lockwood partners inthe firm, which is located at Suite3100, Promenade II, 1230 PeachtreeStreet, NE, Atlanta, GA 30309-3592;(404) 815-3500.

Foltz, Martin LLC has namedthree partner-level members: PamelaR. Masters and Louis E. BridgesIII , currently associates, and Jeff D.Woodward, who has been ofcounsel to the firm since joining itlast year. The office is located at 5Piedmont Center, Suite 750, Atlanta,GA 30305; (404) 231-9397.

The Atlanta law firm of Elrod &Thompson has combined withParker, Hudson, Rainer & DobbsLLP . The joint firms will practiceunder the name of Parker, Hudson,Rainer & Dobbs LLP, with officesin Atlanta and Tallahassee.

Two Atlanta law firms, CohenPollock Merlin Axelrod &Tanenbaum and Small, White &Marani , have combined practicesand will operate under the name ofCohen Pollock Merlin Axelrod &Tanenbaum. The three namepartners of Small, White & Marani— Gus Small, Karen White andMark Marani — have joined CohenPollock as partners. The office islocated at 2100 Riveredge Parkway,Suite 300, Atlanta, GA 30328-4656;(770) 858-1288.

Kilpatrick Stockton LLPannounces that Randy Edwards,Carol R. Geiger, Mark Palmer andMitchell G. Stockwell have beenelected to partnership in the firm’sAtlanta office. Also, Laura J. Fenn

and James Leonard have joined thefirm’s litigation practice in theAtlanta office, the former as anassociate and the latter as counsel.Lastly, the firm welcomes 17 newassociates to the Atlanta office:Christina J. Adams (real estate),Adrienne P. Ashby (real estate),Richard G. Boswinkle (securitiesand franchise), Michael TadCarithers (litigation), Samuel S.Choy (employee benefits), Adam E.Crall (intellectual property-patents),Shawn Dansky (litigation), AntonioF. Doganiero III (litigation),Zachary M. Eastman (businesstransactions), Kyle M. Globerman(intellectual property-patents),Kristin D. Mallatt (intellectualproperty-patents), Christine M.Cason (intellectual property-trade-marks), Chad I. Michaelson (litiga-tion), Catherine F. Munson (litiga-tion), Sherry V. Neal (litigation), R.Joseph Parkey Jr. (securities andfranchise) and Carolyn A. Sawyer(labor). Visit the firm’s Web site atwww.kilstock.com.

In response to its continuedgrowth, Powell, Goldstein, Frazer& Murphy LLP has hired Robert S.Crowell to serve as the firm’s chiefoperating officer. Powell Goldstein isa national law firm with offices inAtlanta and Washington, D.C. Visitthe firm’s Web site atwww.pgfm.com.

Nelson Mullins Riley &Scarborough LLP announces thatHan C. Choi has joined the Atlantaoffice as of counsel and Lance P.McMillian has joined the firm as anassociate. Choi will practice in theareas of municipal and corporatefinance, while McMillian’s practice

will focus in the areas of businessand employment litigation. TheAtlanta office is located at 999Peachtree Street, NE, First UnionPlaza, Suite 1400, Atlanta, GA30309; (404) 817-6000.

Gardner G. Courson has beennamed to the McGuire, Woods,Battle & Boothe LLP board ofpartners. He will be replaced asmanaging partner of the firm’s officeby George H. Heberton. TheAtlanta office is located at 285Peachtree Center Avenue, NE,Marquis Tower Two, Suite 2200,Atlanta, GA 30303; ww.mwbb.com.

Paul, Hastings, Janofsky &Walker LLP has elected Nancy E.Rafuse, of the firm’s Atlanta office,to partnership. Visit the firm’s Website at www.phjw.com.

Hunter, Maclean, Exley, andDunn PC continues to expand itsstatewide practice with the additionof James E. Blanchard as partnerand head of the firm’s Atlanta office.Hunter Maclean is the largestGeorgia law firm outside of Atlanta,with offices in Savannah, Atlanta andAugusta.

Arnall Golden & Gregory,LLP is pleased to announce thatTodd M. Campbell and Stefan C.Passantino have been namedpartners. Also joining the firm aspartner is Darryl S. Laddin , for-merly of Smith, Gambrell &Russell. The Atlanta office is located2800 One Atlantic Center, 1201 WestPeachtree Street, Atlanta, GA 30309-3450; (404) 873-8500.

Law Offices of Stanley M.Lefco PC announces that Michael J.Walker has become associated withthe firm, which is located at 4657

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Roswell Road, Suite G-602, Atlanta,GA 30342; (404) 843-9666.

In AugustaKilpatrick Stockton LLP

announces that Samantha Steffenhas joined the litigation group as anassociate in the firm’s Augustaoffice. Also, David Anderson of theAugusta office has been electedpartner. Visit the firm’s Web site atwww.kilstock.com.

In DecaturThe law office of Morris L.

Richman has relocated to Suite 310,Executive Building, 125 East TrinityPlace, Decatur, GA 30030-3360;(404) 377-3317, FAX (404) 377-3006.

In MaconAnderson, Walker & Reichert

is pleased to announce that two newassociates, James M. Freeman andJohn B. Critchfield, have joined thefirm, which is located at Suite 404,SunTrust Bank Building, Macon, GA31208-6497; (912) 743-8651.

In Savan n ahJames R. Gardner and D.

Campbell Bowman Jr. have formedthe law firm of Gardner & Bow-man LLC. The offices are located at236 East Oglethorpe Avenue, Savan-nah, GA 31401; (912) 234-3155 andThree Executive Court, RichmondHill, GA 31324; (912) 756-3688.

In ThomasvilleFlowers Bakeries Inc., the fresh

baked foods unit of Flowers Indus-tries Inc., has promoted StephanieB. Tillman to the position of associ-ate general counsel. Headquarteredin Thomasville, Flowers Industries

produces and markets a full line offresh and frozen baked foods to retailand foodservice customers nation-wide through its business units –Flowers Bakeries, Mrs. Smith’sBakeries and Keebler Foods. (912)226-9110.

In Chattan ooga, TNHorton, Maddox & Anderson,

PLLC announces that D. BrianNorthcutt and James A. Hurst Jr.have joined the firm as associates.The offices are located at OneCentral Plaza, Suite 600, 835 Geor-gia Avenue, Chattanooga, TN 37402;(423) 265-2560. U

Attorney GeneralThurbert Baker

Official Opin ion sFirst Of-

fender Act. TheFirst Offender Act,O.C.G.A. § 42-8-60 et seq., isapplicable tomisdemeanoroffenses.(1/3/2000 No.2000-1)

TeachersRetirement System. Under theprovisions of O.C.G.A. § 47-3-92,only days of sick leave accruedwhile a member of the TeachersRetirement System may be creditedtowards retirement under the Teach-ers Retirement System. (1/7/2000No. 2000-2)

Elected officials; tenure. Alocal law cannot extend the tenure inoffice of an elected official who

would otherwise immediately vacatethat office, as required by the Geor-gia Constitution, when qualifying torun for another elected position.(1/14/2000 No. 2000-3)

Un official Opin ion sElectronic records and signa-

tures. Under the “Georgia ElectronicRecords and Signatures Act,”departments, agencies, authorities,and instrumentalities of the State ofGeorgia and its political subdivisionshave the legal authority to determinehow and the extent to which theywill create, send, receive, store,recognize, accept, be bound by, orotherwise use “electronic records”and “electronic signatures,” insituations where there is no othercontrolling law specifying a differenttype of record or signature. (1/28/2000 No. U2000-1) U

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A COMPELLING INSIDELOOK AT DEATH ROW

Joe Jackson and William F. Burke Jr. Dead Run:The Untold Story of Dennis Stockton and America’sOnly Mass Escape from Death Row. Times Books.229 pp. $25.00

Reviewed by Joe D. Whitley

DEAD RUN IS THE STORY OF DENNIS STOCKTON,a convicted murderer sentenced to Virginia’s Death Row in1983, and put to death by lethal injection in 1995. Stocktonwas not your typical Death Row inmate. He chronicled hislife in prison by keeping a diary, and later by writing articlesand columns for Virginia newspapers. Because of hiswriting skills and his credibility in recounting in minutedetail the mass escape of Death Row inmates from asouthern Virginia prison, Stockton came to the attention oftwo newspaper reporters, Joe Jackson and William F. BurkeJr., both then with the Virginian-Pilot. Jackson and Burkeare the authors of Dead Run, but the story is all DennisStockton’s as developed from his diary and in face-to-faceinterviews with Jackson and Burke.

The great irony of Stockton’s extended stay in prisonwas his refusal to participate in the escape of six DeathRow prisoners in 1984. Stockton, a seasoned veteran ofprison life, likely would have avoided recapture, unlikehis colleagues who were later apprehended. But Stocktonchose to stay and fight for his life through his lawyers,hoping for a new trial and ultimate freedom. He betwrong. But as he remained on Death Row, he recorded in

his diary and journals a story of the triumph of humaningenuity and determination in the escape of his DeathRow colleagues, who became known as the“Mecklenburg Six.” Their remarkable and frighteningefforts resulted in an asterisk in the heretofore unblem-ished record of the supposedly inescapable MecklenburgCorrectional Center.

The book also provides graphic and brutal detail ofprison life — with the realism of Saving Private Ryan,but without the heroics of GI’s facing a common enemy.Life with the prisoners on Death Row is a caged animalexistence as described by Stockton. The full range ofhuman personality strengths and weaknesses are reflectedin the group of prisoners assembled on Virginia’s DeathRow during Stockton’s long stay there. There are strongpersonalities, recluses, and “punks,” (who are the prop-erty of the dominant for homosexual activity). The guardsand prison personnel also reflect a divergence of charac-ter traits and attitudes toward the inmates. Some of themare sympathetic toward prisoners, while others aresadistic in their treatment of them.

Dead Run also examines the death penalty and itssometimes random and disparate application. The authorssuggest from their review that Stockton’s prosecution waspartially politically motivated by prosecutors and lawenforcement authorities in rural southern Virginia. The chieftrial witness against Stockton later recanted his testimony.Numerous others supported this recantation in swornaffidavits. In addition, other facts uncovered by investigative

reporters looking into the casesuggested that Stockton’s version ofthe facts was correct and that he hadnot been in the vicinity of the murderat the time it was committed. Yearslater, information was discoveredsupporting the “deal” that thegovernment’s key witness received. Insubsequent hearings, however, boththe government and the chief witnessdenied the existence of any deal orconcession.

Throughout his tenure in prison,Stockton was a beneficiary of enthusi-astic and talented lawyers, none ofwhom were successful in obtaining a

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reversal of his conviction. Despite their efforts to obtainleniency for him, Stockton refused an offer made byVirginia’s Governor to receive a modified sentence of lifewithout parole because of his belief in his own innocence.

The book provides a thoughtful examination of theapplication of the death penalty in the years followingFurman v. Georgia. It will cause any reader, whether pro-death penalty or anti-death penalty, to ponder if the deathpenalty isn’t sometimes applied to the innocent andsometimes not applied soon enough to those who arewithout redemption. As a result, it seems the public andpolitical desire for a definitive end to death penaltyappeals should be balanced against the occasional cir-cumstance where there might be a potential wrongfulapplication of the death penalty.

Victims and the general public would agree thatprison conditions should not rival those of a Motel 6, butthey certainly should not be at a level that is sub-humanand cause health and safety concerns for both the inmatesand correctional officers. Stockton’s recounting of thehealth and safety problems he experienced and observedwhile in prison resulted in substantial reforms and im-provements. A better than “third world” standard for theinmates in the Virginia prison system was accomplishedas a result of Stockton’s newspaper accounts.

Stockton’s account of his experience in the Virginiaprison system also sheds light on the potential inhumanityof the utilization of the electric chair. For example, basedon his information from prison sources, he described anindividual who had to be electrocuted twice before hisfull execution was achieved. Fortunately for Stockton, bythe time of his execution, he had the option of choosinglethal injection. Certainly, the imposition of the deathpenalty in and of itself is enough, and it need not becompounded by the application of torture. Stockton’s taleof the electrocution of numerous other inmates suggeststhat, at least in Virginia in the late-1980s and early-1990s,the electric chair approached a form of torture.

There are numerous other themes and issues explored inthis very interesting book. It should be recommendedreading for those who vocally oppose or support the deathpenalty, as well as for those attorneys who wish to pursueprosecution and criminal defense work. It is a good read. U

Joe D. Whitley is Chair of the white collar criminal defense practice

group at Alston & Bird LLP, based in Atlanta, and is the former United

States Attorney for the Northern and Middle Districts of Georgia. He

also served as Deputy Assistant Attorney General for the United States

Department of Justice in the Reagan administration, and as Acting As-

sociate Attorney General during the Bush administration.

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DISCIPLINE NOTICES (As of March 6, 2000)

DisbarredJames A. NolanMadison, GAJames A. Nolan (State Bar No.545450) has been disbarred from thepractice of law in the State ofGeorgia by Supreme Court orderdated January 18, 2000. Nolan failedto respond to charges. Accordingly,the Court found that in three casesNolan abandoned legal mattersentrusted to him. In one case Nolanfailed to return the client’s phonecalls, failed to appear in court, andfailed to return the file. In a secondmatter, Nolan appeared as counselsubsequent to his suspension forfailing to respond to the State Bar’sNotice of Investigation in an unre-lated disciplinary proceeding. Nolanfailed to inform the Court that hislicense was suspended and thecriminal case ended in a mistrial. Inthe third matter Nolan was paid$250. He was to copy and return theclient’s documents. Nolan failed toreturn calls and subsequently deniedhaving the file. Later, the client wentto Nolan’s office and was told byNolan to come back later that day,but Nolan was not there.

Marc W. MendelsonAtlanta, GAMarc W. Mendelson (State Bar No.502041) voluntarily surrendered hislicense to practice law in the State ofGeorgia. The Supreme Court ac-cepted Mendelson’s surrender byorder dated January 18, 2000.Another attorney associated

Mendelson to assist in representingtwo clients in automobile and slipand fall claims. Mendelson negoti-ated an insurance settlement in thecollision claim and received a check,but failed to disburse the funds andmake an accounting to the client. Inthe slip and fall claim, Mendelsonreceived an insurance check for$95,000 but did not tell the client orthe other attorney.

Willis Nelson MarshallKennesaw, GAWillis Nelson Marshall (State Bar No.471950) voluntarily surrendered hislicense to practice law in the State ofGeorgia. The Supreme Court acceptedMarshall’s surrender by order datedJanuary 18, 2000. On May 7, 1999,Marshall was indicted for the felonyoffense of criminal solicitation tocommit a crime in violation of theGeorgia Controlled Substances Act.On September 4, 1999, Marshall pledguilty to the charge.

John Earl DuncanLexington, SCJohn Earl Duncan (State Bar No.233455) voluntarily surrendered hislicense to practice law in the State ofGeorgia. The Supreme Court acceptedDuncan’s surrender by order datedFebruary 14, 2000. Duncan pled guiltyto the charge of making a falsematerial declaration to a grand jury.

Meredith Anne BatesAtlanta, GAMeredith Anne Bates (State Bar No.049732) voluntarily surrendered her

license to practice law in the State ofGeorgia. The Supreme Court ac-cepted Bates’ surrender by orderdated February 14, 2000. Batesrepresented a client in a divorceaction, including child support, andin a contempt action to obtain childsupport. She filed the contemptaction but, after learning that theopposing party had filed for bank-ruptcy, failed to take further action toobtain child support. Bates also filedthe divorce action, but did not seek atemporary order to obtain childsupport. She failed to return calls andclosed her practice without inform-ing her client and without filing amotion to withdraw from the divorceaction. Bates failed to file a timelyresponse to the client’s grievance.

James L. AdamsAtlanta, GAJames L. Adams (State Bar No.003500) voluntarily surrendered hislicense to practice law in the State ofGeorgia. The Supreme Court ac-cepted Adams’ surrender by orderdated March 6, 2000. Adams vio-lated Standard 66 (conviction of afelony or misdemeanor) in connec-tion with his guilty plea in a felonymatter.

Suspen dedHarvey C. Brown Jr.Lindale, GAHarvey C. Brown Jr., (State Bar No.087850) petitioned the SupremeCourt for voluntary discipline. OnJanuary 18, 2000, the Court sus-

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pended Brown for two years runningfrom September 1, 1998, with acondition for reinstatement beingthat he provide a certification fromthe Lawyer Assistance Program thathe is fit to practice and that he posesno threat of harm to his clients orpublic. Brown was to handle aprobate matter and the sale ofproperty, for which he was paid aretainer of $950. After the sale, hereceived a $2,500 check from thebuyer as a down payment. Brownfailed to deliver the proceeds to hisclient and converted the funds to hisown use. Brown did not respond tothe State Bar’s Notice of Investiga-tion. He closed his practice onSeptember 1, 1998, and was sus-pended by the Court on October 19.Since that time, he has made restitu-tion.

W. Bennett GaffFitzgerald, GAOn January 18, 2000, the SupremeCourt suspended W. Bennett Gaff(State Bar No. 281875) from thepractice of law for one year with acondition of reinstatement being thathe refund a client $500. Gaff, wholived and had a law office in Canton,Georgia, opened another law officein Fitzgerald in 1996. Despitewarnings from the State Bar, Gaffallowed a disbarred lawyer to workunsupervised as a paralegal in theFitzgerald office. Gaff failed to takeany action to insure that the parale-gal had no contact with his clientsand failed to inform his clients thatthe paralegal was a disbarred lawyer.Also, while working for Gaff, thedisbarred lawyer engaged in criminalmisconduct, including forgery andtheft. Further, Gaff failed to deliversettlement proceeds to clients andfailed to complete work.

Richard W. VossMedford, WIRichard W. Voss (State Bar No.

728992) petitioned the SupremeCourt for voluntary discipline. OnJanuary 18, 2000, the Court sus-pended Voss for 18 months inconnection with his representation ofthree clients in separate matters. Vossfailed to follow through on theexecution and filing of loan assump-tion documents and when thepurchaser was delinquent in makingmortgage payments, the mortgagecompany demanded payment fromVoss client. In a bankruptcy matter,Voss failed to communicate with aclient regarding her case, did notwithdraw from the case, and the casewas eventually dismissed by thebankruptcy court. In the third case,Voss’ failed to file a child supportmodification on behalf of his clientuntil the client filed a grievanceagainst him. Voss failed to file asworn written response to the threeState Bar Notices of Investigation.

James J. ClintonSylacauga, ALJames J. Clinton (State Bar No.170575) petitioned the SupremeCourt for voluntary discipline. OnJanuary 18, 2000, the Court sus-pended Clinton indefinitely, nunc protunc to December 23, 1998, with thecondition that he be reinstated topractice law in Alabama or bereinstated to practice in Georgiapursuant to Bar Rule 4-301 through4-306. Clinton was disbarred inAlabama effective February 12, 1991.The State Bar of Georgia learned ofhis Alabama disbarment on December23, 1998, from which date Clinton hasnot practiced law in Georgia.

E. Herman WarnockMcRae, GAE. Herman Warnock (State Bar No.738100) has been suspended fromthe practice of law in the State ofGeorgia by Supreme Court orderdated January 18, 2000. A client fileda grievance alleging that Warnock

received money from him whilesuspended and then refused to returnit. The Bar filed a Notice of Investi-gation to which he failed to respond.In another case, a client filed agrievance alleging that Warnock hadagreed to represent him and twoother joint owners of real propertydestroyed by a fire. After the insur-ance company refused to pay for theloss, Warnock filed a proof of lossstatement but failed to communicatewith the clients in spite of theirrepeated attempts to talk to him.Warnock finally filed suit on behalfof his clients after they filed agrievance. Warnock acknowledgedservice of the Notice of Investigationbut neglected to file an answer untilseven months later. These twodisciplinary cases follow priordiscipline in 1987, 1989, January1998, and December 1998, as well asan interim suspension in January andFebruary 1998.

Wayne P. ThigpenAugusta, GAWayne P. Thigpen (State Bar No.704525) petitioned the SupremeCourt for voluntary discipline. OnJanuary 31, 2000, the Court sus-pended Thigpen indefinitely with thefollowing conditions to be satisfiedprior to seeking reinstatement:Thigpen must return all files to theclients who want them, reimburse allclients for unearned fees, obtain areport from his psychiatrist that he isable to responsibly resume his lawpractice, and obtain a favorableevaluation by the Lawyer AssistanceProgram. In one case Thigpen waspaid a $750 retainer to recover a feeowed for real estate appraisal andconsulting services. Thigpen told theclient that he would send a demandletter and file suit. After the clientlearned that Thigpen had not takenany action, he demanded the returnof the retainer and file. Thigpenreturned the retainer after the client


filed a grievance but failed to returnthe file. In another matter Thigpenfiled pleadings and entered anappearance before the Superior Courtof Richmond County while he wassuspended from the practice of law.

P. Russell TarverBirmingham, ALP. Russell Tarver (State Bar No.698425) petitioned the SupremeCourt of Georgia for voluntarydiscipline. On February 14, 2000, theSupreme Court of Georgia sus-pended Tarver for 45 days. Tarver,who is a resident of Alabama and amember of the Alabama Bar, pledguilty in Alabama to conduct whichwould constitute a violation ofStandard 12 (a lawyer shall notsolicit professional employment as aprivate practitioner for himself, hispartner or associate through directpersonal contact with a non-lawyerwho has not sought his adviceregarding employment of a lawyer),and received a 45-day suspension inAlabama on November 16, 1999.

Julius W. WilliamsGainesville, GAJulius W. Williams (State Bar No.762965) has been suspended from thepractice of law in the State of Georgiaby Supreme Court order dated Febru-ary 29, 2000, for a period of threeyears. Williams agreed to represent aclient in a workers’ compensationmatter. He told her that her formeremployer was prepared to settle and hewas waiting to hear back from theemployer. Eventually Williams told hisclient he was too ill to pursue her case,but that he had referred it to anotherlawyer. Williams did not update theclient on the status of her case and didnot return her file despite her request.He never referred her case to anotherlawyer, and failed to file a complainton her behalf. As a result, the status oflimitations expired on the client’sclaim.

Douglas Harry PikeAtlanta, GADouglas Harry Pike (State Bar No.002960) petitioned the SupremeCourt for voluntary discipline. OnMarch 6, 2000, the Court suspendedPike from the practice of law in theState of Georgia for a period of oneyear effective January 1, 2000, withconditions for reinstatement. Pikefiled his petition in response to twoformal complaints. Pike agreed torepresent a client in litigation involv-ing alleged construction defects tothe client’s home. Pike failed tocommunicate with the client aboutdevelopments in the litigation anddid not properly and timely answerdiscovery. The trial court judgedismissed the client’s case. Pike alsofailed to answer a Notice of Investi-gation in this matter, despite ac-knowledging service. In anothermatter, Pike agreed to represent acouple in a case arising out of anautomobile accident in which thehusband suffered serious injuries. Hefailed to communicate with hisclients and did not file suit, orcomplete other work required. Theclients discharged Pike and de-manded their file. Pike did notsurrender the file until two monthslater.

Public Repriman dMatthew John ReubensDecatur, GAMatthew John Reubens (State BarNo. 601231) petitioned the SupremeCourt for voluntary discipline. TheCourt accepted Reuben’s petition onJanuary 18, 2000, and ordered him toreceive a public reprimand. Reubensloaned a client money on threeoccasions during his representationof the client in a workers’ compensa-tion and personal injury case. Theloans were to be repaid in part fromany proceeds from the case.

Charles E. Bagley Jr.Douglas, GACharles E. Bagley Jr. (State Bar No.005440) petitioned the SupremeCourt for voluntary discipline. TheCourt accepted Bagley’s petition onJanuary 19, 2000, and ordered him toreceive a public reprimand. Bagleyfailed to respond to disciplinaryauthorities during the investigationof a grievance (Standard 68) allegingthat he willfully abandoned ordisregarded a legal matter entrustedto him (Standard 44). In his timelyresponse to the formal complaint, headmitted he violated Standard 68 butdenied a violation of Standard 44.The maximum sanction for a viola-tion of Standard 68 is a publicreprimand.

Review Pan el Repriman dIyabo Onipede JohnsonFitzgerald, GAIyabo O. Johnson (State Bar No.553825) petitioned the SupremeCourt for voluntary discipline. TheCourt accepted Johnson’s petition onJanuary 18, 2000, and ordered her toreceive a Review Panel reprimand.Johnson closed a real estate transac-tion on uncollected funds underpressure from a client. Johnson’sescrow account was in a deficit for a12-day period until the client gaveher sufficient funds to cover theentire amount of the purchase priceand closing costs. When the InternalRevenue Service later interviewedJohnson in connection with aninvestigation of her client, Johnsonwas untruthful on two occasions,stating that she had received all themoney from her client on the date ofthe closing. Later she admitted shewas not truthful with the IRS be-cause she wanted to avoid disclosurethat her escrow account had been ina deficit because of this transaction.

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Janice L. HughesDecatur, GAJanice L. Hughes (State Bar No.376050) petitioned the Supreme Courtfor voluntary discipline. The Courtaccepted Hughes’ petition on January18, 2000, and ordered her to receive aReview Panel reprimand. Hughesviolated Standard 44 by accepting feesfrom two clients, but not performingtheir work, not responding to theircalls or letters, and not returningrecords upon request.

Kevin F. ForierAtlanta, GAKevin F. Forier (State Bar No.269180) petitioned the Supreme Courtfor voluntary discipline. The Courtaccepted Forier’s petition on January19, 2000, and ordered him to receive aReview Panel reprimand. Forier failedto meet the Mandatory ContinuingLegal Education requirements for1996, and although he attended twoseminars to remedy the deficiency, hefailed to pay the registration feesdespite notification that certification ofattendance would be withdrawn if hedid not. He was suspended frompractice due to the deficiency butentered an appearance for a client.When the Court found out he was notauthorized to practice, the client had toproceed pro se. Forier took a leave ofabsence from his employment andattended seminars to comply with therequirements.Robert A. WilkinsonChamblee, GARobert A. Wilkinson (State Bar No.760050) petitioned the SupremeCourt for voluntary discipline. TheCourt accepted Wilkinson’s petitionon February 11, 2000, and orderedhim to receive a Review Panelreprimand. After being hired by threedifferent clients to represent thembefore the United States Immigrationand Naturalization Service, he failedto do the work or file petitions ontheir behalf. He repeatedly assured

the clients that their proceedingswith the INS were progressing.Subsequently, each client terminatedhis employment and were forced tohire new counsel. In one instance,Wilkinson failed to forward theclient’s files to the new attorney.

Harry L. TraufferMarietta, GAHarry L. Trauffer (State Bar No.715750) petitioned the SupremeCourt for voluntary discipline. TheCourt accepted Wilkinson’s petitionon March 3, 2000, and ordered himto receive a Review Panel repri-mand. Trauffer violated the standardsby not reducing to writing a contin-gency fee agreement with a client, bypaying the client from his attorneytrust account out of his personalfunds on deposit in the trust account,and by designating the trust accountas a “Deposit Account.”

Rein statemen tDavid Edward BettsAtlanta, GADavid Edward Betts (State Bar No.055850) filed a petition for reinstate-ment to the practice of law. TheSupreme Court approved his petitionby order dated February 14, 2000,conditioned upon his satisfaction ofall the requirements of the RulesGoverning Admission of the Practiceof Law including taking and passingthe Georgia Bar Examination andachieving a scale score of 75 on theMulti-state Professional Responsibil-ity Examination.

In terim Suspen sion sUnder State Bar Disciplinary Rule 4-204.3(d), a lawyer who receives aNotice of Investigation and fails to filean adequate response with the Investi-gative Panel may be suspended fromthe practice of law until an adequateresponse is filed. Since January 2000,five lawyers have been suspended forviolating this Rule. U

Cre-ativeLegalRe-sourcenew


west full BW pickup 2/00 “redefin-ing citation research

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The Lawyers Foundation of Georgia Inc. sponsors activities to promote charitable, scientific and educational purposesfor the public, law students and lawyers. Memorial contributions may be sent to the Lawyers Foundation of GeorgiaInc., 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.

Allen, Jr., Roy B. Admitted 1964Tifton Died February 2000

Blackburn, Jr., Oris D. Admitted 1955Valdosta Died January 2000

Bruton, Charles C. Admitted 1983Carlsbad, NM Died January 1999

Bullock, Darrion Pam Monroe Admitted 1986Marietta Died December 1999

Daniel, Peter K. Admitted 1987Atlanta Died January 2000

Edwards, R. J. Admitted 1949Atlanta Died February 2000

Endicott, Mary C. Admitted 1953Brunswick Died December 1994

Finkel, Jane Ellen Admitted 1995Atlanta Died February 2000

Holton, Elie L. Admitted 1949Douglas Died August 1999

Ladson Jr., William F. Admitted 1974Macon Died November 1999

Lange, Robert H. Admitted 1959Savannah Died November 1999

Llop, Joseph L. Admitted 1952Atlanta Died January 2000

Matthews, John P. Admitted 1938Smyrna Died January 2000

Miller, Henry J. Admitted 1929Atlanta Died February 2000

Ranitz Jr., John F. M. Admitted 1948Savannah Died December 1999

Smith, Frank G. Admitted 1971Smyrna Died September 1999

Thompson, Robert T. Admitted 1951Greenville, SC Died January 2000

Twyman-Williams, Yvonne Angela Admitted 1990Avondale Estates Died February 2000

Vaughn, Ralph D. Admitted 1969Mableton Died December 1999

Vickrey, Jack Admitted 1963Houston, TX Died October 1997

Wardlow, Jr., Floyd H. Admitted 1961Ashburn Died 2000

Wilkerson, John P. Admitted 1948Leesburg, FL Died December 1998

Yancey Jr., Howard E. Admitted 1971Adel Died December 1999

A meaningful way to honor a loved one or to commemorate a special occasion isthrough a tribute and memorial gift to the Lawyers Foundation of Georgia. Anexpression of sympathy or a celebration of a family event that takes the form of a giftto the Lawyers Foundation of Georgia provides a lasting remembrance. Once a gift isreceived, a written acknowledgement is sent to the contributor, the surviving spouseor other family member, and the Georgia Bar Journal. A gift to the Lawyers Founda-tion of Georgia will endure beyond an individual’s lifetime. It can serve to extend ahelping hand to the community and those in need for years to come. Please contact theLawyers Foundation of Georgia for more information. 800 The Hurt Building, 50Hurt Plaza, Atlanta, GA 30303. 404-526-8617 or [email protected].

Memorials and Tributes


NRA Foundation new

THE AMERICAN LAW INSTITUTE(ALI) and the State Bar JudicialProcedure and AdministrationCommittee presented their 18thAnnual ALI Breakfast in Atlanta.

Senior Judge Dorothy TothBeasley, Executive Director/Interna-tional Program at the NationalCenter for State Courts and formerGeorgia Court of Appeals Judge,welcomed the group of approxi-

ALI: Restitution, Unjust Enrichment Revisitedmately 35 attendees representingcities from around the state.

State Bar Judicial Procedure &Administration Committee ChairThomas William Malone introducedthe morning’s keynote speaker, EmoryLaw School Professor Andrew Kull,who has returned to Georgia afterserving as Visiting Professor of Law atthe University of Texas. Kull teachescontracts, restitution, sales and

negotiable instruments, and hisaccomplishments include an AmericanBar Association Silver Gavel Award,which he earned for his principal workin legal history, The Color-BlindConstitution (Harvard U.P. 1991).

Kull’s presentation was titled,“Where Do Restatements ComeFrom? The New Restatement ofRestitution (and Unjust Enrich-ment).” U

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Legal Services HonorRoll-2pp film provided

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N O T I C E S

Notice of Filing of Proposed FormalAdvisory Opinion in Supreme CourtSecon d Publication ofProposed Formal AdvisoryOpin ion Request No. 99-R2

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 April 15, 2000.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 proposedopinions.

Proposed Formal AdvisoryOpin ion Request No. 99-R2

QUESTIONS PRESENTED:I. Disclosure of Billing Statements

to Non-Clients.May a lawyer whose professional

services are paid by a person otherthan the client disclose to the personpaying the bill, or to third-parties suchas an insurer’s outside audit service,client confidences or secrets con-tained in detailed, narrative billingstatements which describe the profes-sional services rendered?

II. Request by Non-Client toObtain Client’s Consent toDisclose Billing Statements.

May a lawyer ethically complywith a request by a person who paysthe lawyer’s billings, other than theclient, to seek or obtain the client’sconsent for the lawyer to discloseclient confidences or secrets con-tained in billing statements to besubmitted to an outside audit service?III. Guidelines for Professional

Services Imposed by Non-Client.May a lawyer whose professional

services are paid by a person otherthan the client ethically comply withdetailed guidelines regarding billingsor services rendered as imposed by aperson other than the client who ispaying the bill for legal services?

SUMMARY ANSWERS:I. Disclosure of Billing Statements

to Non-Clients.A lawyer may not disclose to a

person who pays the lawyer’s billingsother than the client, or to third-parties such as an insurer’s outsideaudit service, confidential informationconcerning the client without theclient’s consent, except for disclo-sures that are impliedly authorized tocarry out the representation.

II. Non-Client Request to ObtainClient’s Consent to DiscloseBilling Statements.A lawyer should not comply with

the requirement of a person who paysthe lawyer’s billings, other than theclient, that the lawyer seek or obtainthe client’s consent to disclosure ofclient confidences or secrets in billing

statements to be submitted to anoutside audit service.III. Guidelines for Professional

Services Imposed by Non-Client.A lawyer whose professional

services are paid for by a person otherthan the client can ethically complywith guidelines of the person payingthe bill, provided the guidelines donot require disclosure of confidentialor secret information of the client,without the client’s consent, orinterfere with the attorney’s indepen-dent professional judgment in render-ing legal services to the client or withthe attorney-client relationship.

OPINION:I. Disclosure of Billing Statements

to Non-Clients.“Both the fiduciary relationshipexisting between lawyer and cli-ent and the proper functioning ofthe legal system require the pres-ervation by the lawyer of confi-dences and secrets of one whohas employed or sought to em-ploy him.”1

It is the duty of every lawyer tomaintain inviolate the confidencesand, at every peril to themselves, topreserve the secrets of their clients.Standards 28 and 29; O.C.G.A. §15-19-14(3); see also, Rule 1.6, ABAModel Rules of Professional Conduct.The attorney/client privilege is for thebenefit of the client, not the lawyer.Marriott Corp. v. American, Academyof Psychotherapists Inc., 157 Ga.App. 497, 277 S.E.2d 785 (1981).Therefore, a lawyer cannot disclose toa person who pays the lawyer’s

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billing, such as an insurer, or to third-parties such as an insurer’s outsideaudit service, confidential informationconcerning the client without theclient’s consent, except for disclo-sures that are impliedly authorized tocarry out the representation. Standard28(b); EC 4-2. The exception fordisclosures that are impliedly autho-rized is to be narrowly construed anddoes not allow the attorney’s disclo-sure, without specific client consent,of confidential client information to athird-party hired by the person orentity paying the fee other than theclient.

An insurance carrier that hasundertaken a contractual obligation tofurnish legal services on behalf of aninsured would have implied authori-zation to receive and review thebilling statements for professionalservices in order to satisfy thosecontractual obligations. However, ifcounsel discloses client confidencesand secrets to a third party, such as afee auditor, this can result in a waiverof the attorney-client privilege orcontravene the lawyer’s professionalethics, or both. Griffin v. Williams,179 Ga. 175, 175 S.E. 449 (1934).

The very nature of detailednarrative billing statements for theservices rendered by a lawyer willnormally contain client confidencesand secrets. Ethical considerationswhich define client confidences andsecrets are broader than the attorney-client privilege. EC 4-4 provides:

The attorney-client privilege ismore limited than the ethical ob-ligation of a lawyer to guard theconfidences and secrets of hisclient. This ethical precept, un-like the evidentiary privilege,exists without regard to the na-ture or source of information orthe fact that others share theknowledge. A lawyer should en-deavor to act in a manner whichpreserves the evidentiary privi-lege; for example, he shouldavoid professional discussions in

the presence of persons to whomthe privilege does not extend. Alawyer owes an obligation toadvise the client of the attorney-client privilege and timely to as-sert the privilege unless it iswaived by the client.

The definition of client “confi-dence” or “secret” is expansive andwould include much of the kind ofinformation that might normally befound in detailed narrative billingstatements. Rule 3-104, DR 4-101.2 Aclient’s secret is not only anythingthat might be embarrassing to theclient but also anything that relates tothe representation. See, In the Matterof T. Edward Tante, 264 Ga. 692, 453S.E.2d 688 (1994). This body hasrecognized that the mere identifica-tion or location of a client may be aconfidence or secret. See, StateDisciplinary Board Advisory OpinionNos. 17 and 42.3

Must a lawyer consult with theclient to determine what is a confi-dence or secret (and therefore not tobe disclosed to the auditors) or canthe decision be made unilaterally? Inthe absence of actual full disclosureand consultation with the client,prudence dictates that counsel shouldassume that any information about theclient and the representation isconfidential.

What obligation does a lawyerhave upon discovering that a state-ment for legal services has beenproduced to an unauthorized thirdparty without his client’s consent? Alawyer should object upon learningthat a payer of his fee other than hisclient is forwarding bills for legalservices to an outside auditor. See,Standard 29; see also, Maryland StateBar Association, Ethics AdvisoryOpinion 99-7 (December 18, 1998).No additional detailed bills may besent by the lawyer to the non-clientpayer without the client’s consentafter the lawyer learns that the billsare being forwarded to an outsideauditor. Vermont Bar Association,

Opinion 98-7.II. Request by Non-Client toObtain Client’s Consent toDisclose Billing Statements.A lawyer may not ethically

comply with the requirement of aperson other than the client who paysthe lawyer’s billings that the lawyerseek or obtain the client’s consent topotential disclosure of client confi-dences or secrets contained in billingstatements to be submitted to anoutside audit service. Such a require-ment would put the attorney in anethical dilemma, precluding theattorney from representing the client.

It is fundamental that a lawyershould exercise independent judg-ment on behalf of a client. Standard41; Rule 3-105. This requires that theprofessional judgment of a lawyershould be exercised, within thebounds of the law, solely for thebenefit of the lawyer’s client, free ofthe compromising influences of eitherhis personal interests, the interests ofother clients, or the desires of thirdpersons. EC 5-1. The Ethical Consid-erations under Rule 3-105 related tothe “Desires of Third Persons” aredirectly on point:

EC 5-21 The obligation of alawyer to exercise professionaljudgment solely on behalf of hisclient requires that he disregardthe desires of others that mightimpair his free judgment. The de-sires of a third person will seldomadversely affect a lawyer unlessthat person is in a position to ex-ert strong economic, political, orsocial pressures upon the lawyer.These influences are often subtle,and a lawyer must be alert to theirexistence. A lawyer subjected tooutside pressures should make fulldisclosure of them to his client, andif he or his client believes that theeffectiveness of his representationhas been or will be impairedthereby, the lawyer should takeproper steps to withdraw from rep-resentation of his client.


EC 5-22 Economic, politi-cal, or social pressures by thirdpersons are less likely to im-pinge upon the independentjudgment of a lawyer in a mat-ter in which he is compensateddirectly by his client. On theother hand, if a lawyer is com-pensated from a source otherthan his client, he may feel asense of responsibility to some-one other than his client.EC 5-23 A person or orga-nization that pays or furnisheslawyers to represent others pos-sesses a potential power to ex-ert strong pressures against theindependent judgment of thoselawyers. Some employers maybe interested in furthering theirown economic, political, or so-cial goals without regard to theprofessional responsibility of

the lawyer to his individual cli-ent. Others may be far moreconcerned with establishmentor extension of legal principlesthan in the immediate protectionof the rights of the lawyer’s in-dividual client. On some occa-sion, decisions on priority ofwork may be made by the em-ployer rather than by the law-yer with the result that prosecu-tion of work already undertakenfor the clients is postponed totheir detriment. Similarly, anemployer may seek, consciouslyor unconsciously, to further itsown economic interests throughthe actions of the lawyers em-ployed by it. Since a lawyermust always be free to exercisehis professional judgment with-out regard to the interests ormotives of a third person, the

l a w y e rwho is em-ployed byone to rep-resent an-other mustconstantlyg u a r da g a i n s terosion ofhis profes-sional free-dom.

Anunacceptableethical di-lemma wouldbe created insituationswhere aperson otherthan the clientpays thelawyer’sbillings andrequests thatthe attorneyseek or obtainthe client’sconsent to

potential disclosure to third parties ofclient confidences or secrets con-tained in billing statements. A lawyercannot disclose client confidenceswithout the informed consent of theclient, and in this scenario, fully andfairly informing the client is fraughtwith danger in the form of subtleinfluences on the manner andmethod used by the lawyer to informthe client. A benign written disclo-sure is not likely to “fully inform”the client, since the client’s consentto release of confidential informationmust be completely informed, basedupon more than the mere fact that hisor her billing records will be releasedto the auditors. See, Vermont Opin-ion 98-7. The more prudent approachwould arguably require that theclient be informed that releasing thebilling statement to an outside partycould lead to a waiver of the attor-ney-client privilege, as well as anyother adverse impact that the lawyerknew or should have known. Thedilemma for the lawyer in providingthe client with the veritable “list ofhorrors” lies in the potential chillingeffect that might result from even asubconscious desire to avoid offend-ing the person responsible forpayment of the lawyer’s services.

However, the most troublingdilemma in this situation can occurwhen the client asks the lawyer foradvice on whether or not to consentto disclosure, and this request foradvice would be a normal andautomatic reaction to any efforts tofully inform. In order to avoid boththe subtle and obvious influenceswhich may come into play in situa-tions where a person other than theclient pays the lawyer’s billings andrequests that the attorney seek orobtain the client’s consent to poten-tial disclosure of client confidencesor secrets contained in billingstatements, the situation must beanalyzed from the perspective of anyother independent lawyer whose feesare not being paid by a person other

Insurance Special-ists new pickup 2/00 p46

65A P R I L 2 0 0 0

MembershipCards for AllTHIS PAST WINTER, FOR THEfirst time in a number of years, theState Bar of Georgia distributed newmembership cards to all 31,500 of itsmembers. The project was initiatedby Bar President Rudolph N.Patterson and implemented by theBar’s Membership Department.

Each member received an easy-to-read, laminated card featuring anarchitectural rendering of what willbe the Bar’s new headquarters in2002, as well as a handy, quick-dialreference Rolodex® insert.

According to Bar MembershipDirector Gayle Baker, the entireoperation went very smoothly, fromproduction to distribution. A supple-mental mailing of an additional 300cards was sent out in March to newlyadmitted attorneys or others that, forwhatever reason, had a problem withtheir original card.

Members are asked that theykeep their new cards handy and referto their Bar number in all communi-cations with the Bar. Photo identifi-cation cards are still available forpurchase from the MembershipDepartment at a cost of $10 each. U

Bar President Rudolph Patterson pre-sents a new membership ID card toPatrise Perkins-Hooker.

than the client. Where disclosure ofthe billing statements interjects theslightest risk that the client could beprejudiced by agreeing to disclosure,and the client gains nothing in return,a truly disinterested lawyer wouldnot conclude that the client shouldagree and would advise the clientaccordingly. See, e.g., 98 FormalEthics Opinion 10, North CarolinaState Bar Association; WashingtonState Bar Association, FormalOpinion 195 (January 12, 1999).

Prudence dictates that a lawyeravoid situations which create asubstantial potential for underminingthe attorney/client relationship. OurRules of Ethics require that a lawyershall not permit a person whorecommends, employs or pays himto render legal services for another todirect or regulate his professionaljudgment. Standard 4l; Rule 3-105and DR5-107. Therefore, a lawyermay not ethically comply with therequirement of a person other thanthe client who pays the lawyer’sbillings that the lawyer seek orobtain the client’s consent to poten-tial disclosure of client confidencesor secrets contained in billingstatements to be submitted to anoutside audit service.

III. Guidelines for ProfessionalServices Imposed by Non-Client.

Standard 41 A lawyer shallnot permit a person who recom-mends, employs, or pays him torender legal services for anotherto direct or regulate his profes-sional judgment in renderingsuch legal services. A violationof this standard may be pun-ished by disbarment.

A lawyer whose professionalservices are paid by a person otherthan the client can ethically complywith guidelines of the person payingthe bill, provided the guidelines do notrequire disclosure of confidential orsecret information of the client,without the client’s consent, orinterfere with the attorney’s indepen-

dent professional judgment in render-ing legal services to the client or withthe attorney-client relationship. See,Rule 3-105, DR 5-107; see also, Rule1.8(f), 2.1 and 2.3, ABA Model Rulesof Professional Conduct.

Guidelines cannot be followed ifthey interfere with the lawyer’sexercise of the lawyer’s professionaljudgment, and the lawyer mustinform the client about any guide-lines. Any guideline which arbitrarilyand unreasonably limits or restrictscompensation for the reasonabletime spent on task necessary to therepresentation is to be avoided.Billing guidelines that impose a defacto or arbitrary rate for certainservices, such as compensating alawyer at paralegal rates, are also tobe avoided. See Washington StateBar Association, Formal Opinion195 (January 12, 1999).

A lawyer must obtain the in-formed consent of the client beforecomplying with any restrictions onrepresentation of the client that areimposed by a party other than theclient, such as the payer of theattorney’s legal services. VermontBar Association, Opinion 98-7. Seealso Alabama State Bar,RO-98-02. U

En dn otes1. EC 4-12. Rule 3-104, DR 4-101

Preservation of Confidences and Se-crets of a Client(a) “Confidence” refers to informa-tion protected by the attorney-clientprivilege under applicable law, and“secret” refers to other informationgained in the professional relationshipthat the client has requested be heldinviolate or the disclosure of whichwould be embarrassing or would like-ly be detrimental to the client.

3. Ethics bodies have recognized in-stances where the mere fact that aclient has sought legal assistance maybe a confidence or secret. See, Ver-mont Opinion 98-7; Maryland EthicsAdvisory Opinion 99-7; WashingtonFormal Opinion 195.


4-99 6-99(Fri) 6-99(Sat) 8/99 11-99 1-00Lanier Savannah Savannah Amelia Brasstown Atlanta• • • • • Ross Adams• • • • • • Anthony B. Askew• • • • • William Steven Askew

• • Thurbert E. Baker• • • • • Donna Barwick

• • • • William D. Barwick• • • • • Robert L. Beard, Jr.n/a n/a • • J. Lane Bearden

• • • James D. Benefield III• • • • • Barbara B. Bishop

• • Joseph A. Boone• • • • • Wayne B. Bradley• • • • • • Jeffrey O. Bramlett

• • • Sam L. Brannen• • • e James C. Brim, Jr.n/a n/a • • • • William K. Brokern/a n/a n/a • • • James Michael Brown• • • • Thomas R. Burnside, Jr.n/a n/a • • • S. Kendall Butterworth• • • • • • William E. Cannon, Jr.• • • • • • Edward E. Carriere, Jr.

• • • • • Paul Todd Carroll, III• • • • • • Bryan M. Cavan• • • • • • Thomas C. Chambers, III

• • • F. L. Champion, Jr.• • • • • John A. Chandler

• • • • • Joseph D. Cooley, III• • • • • Delia T. Crouch• • • • • William D. Cunningham• • • • • • William V. Custer, IV• • • • • David P. Darden• • • • • • Dwight J. Davis• • • • • • Joseph W. Dent• • • • • • Ernest De Pascale, Jr.• • • • Foy R. Devine• • • • • • Charles J. Driebe• • • • • C. Wilson DuBose• • • • • • James B. Durham• • • • • • Myles E. Eastwood• • • • • Gerald M. Edenfield

• • J. Franklin Edenfield• • • • • • O. Wayne Ellerbee• • • • Michael V. Elsberry• • • • • J. Daniel Falligant• • • • • e B. Lawrence Fowler• • • • • • James B. Franklin• • • • • Gregory L. Fullerton

• • • • Gregory A. Futch• • • • H. Emily George• • • • • • Adele P. Grubbsn/a n/a • • • • Robert R. Gunn, II

• • • • • John P. Harrington• • • • • Walter C. Hartridgen/a n/a • • • Steven A. Hathorn• • • • • • James A. Hawkins• • • • • • Joseph J. Hennesy, Jr.• • • • • • Phyllis J. Holmen

• • • Roy B. Huff• • • • Donald W. Huskins

• • • • • • Robert D. Ingram• • • • • James Irvin

• • • • • Rachel K. Iverson• • • • Michael R. Jones, Sr.• • • • • William Alan Jordan

n/a n/a • • • • J. Benjamin Kay, IIIn/a n/a • • Dow (Kip) N. Kirkpatrick• • • • • William P. Langdale, Jr.e e • • e Earle F. Lasseter• • • • J. Alvin Leaphart• • • • Francis Marion Lewis• • • • • • David S. Lipscomb

Board of Governors Meeting Attendance4-99 6-99(Fri) 6-99(Sat) 8/99 11-99 1-00Lanier Savannah Savannah Amelia Brasstown Atlanta

• • • • • Hubert C. Lovein• • • • • • Leland M. Malchown/a n/a • • • • Edwin Marger• • • • • • H. Fielder Martin• • • • • • C. Truitt Martin, Jr.n/a n/a • • • • Johnny W. Mason, Jr.• • • William C. McCalley• • • • • • William C. McCracken• • • • • Ellen McElyea• • • • Joseph Dennis McGovern• • • • Larry M. Melnick• • • • C. Patrick Milford• • • • J. Brown Moseley

• • • • A. L. Mullins• • • • • • George E. Mundy• • • • • • Aasia Mustakeem

• • John A. Nix• • • • • • Dennis C. O’Brien• • • • • Bonnie C. Oliver• • • • • • Rudolph N. Patterson• • • Matthew H. Patton• • • • Carson Dane Perkins• • • Patrise Perkins-Hooker• • • • • • J. Robert Persons• • • • • R. Chris Phelps• • • • John C. Pridgen• • • • • Thomas J. Ratcliffe, Jr.• • • • • • George Robert Reinhardt• • • • Jeffrey P. Richardsn/a n/a • • • • Robert V. Rodatus• • • • • Tina Shadix Roddenbery

• • • • Joseph Roseborough• • • • William C. Rumer

n/a n/a • • • • Dennis C. Sanders• • • • • Thomas G. Sampsonn/a n/a • • • • Robert L. Shannon, Jr.• • • • • • Michael M. Sheffieldn/a n/a • • • • Kenneth L. Shigley• • • • • • M.T. Simmons, Jr.• • • • • • Lamar W. Sizemore, Jr.• • • • • William L. Skinnern/a n/a • • • • Philip C. Smith• • • • R. Rucker Smith• • • • • S. David Smithn/a n/a n/a • • • Hugh D. Sosebeee • • • • • Huey Spearman• • • • • Lawrence A. Stagg• • • • John Stell• • e Frank B. Strickland

• • • Richard C. Sutton• • • • Jeffrey B. Talley

• • • • • • John J. Tarleton• • • • • S. Lester Tate, III• • • • • Henry C. Tharpe, Jr.

• • • • • • Dwight L. Thomas• • Edward D. Tolley

• • • • • • Christopher A. Townley• • • • Carl A. Veline, Jr.

• • • Joseph L. Waldrep• • • • • J. Henry Walker

J. Tracy WardGeorge W. Weaver

• • • • • • N. Harvey Weitz• • • A. J. Welch

• • • Andrew J. Whalen, III• • • • James L. Wiggins

• • • Wiliam N. Withrow, Jr.• • • • Gerald P. Word• • • • • • Anne Workman• • • • Gordon R. Zeese• • • Marvin H. Zion

• - attended; e - excused; blank- did not attend; n/a - not on Board; For a list of the Board of Governors by circuit, see the Directory pg. 9.

N O T I C E S

67A P R I L 2 0 0 0

1999-2000 Election ResultsState Bar of GeorState Bar of GeorState Bar of GeorState Bar of GeorState Bar of Georgia Officersgia Officersgia Officersgia Officersgia Officers

President-Elect James B. Franklin, StatesboroSecretary William D. Barwick, AtlantaTreasurer James B. Durham, Brunswick

YYYYYounger Lounger Lounger Lounger Lounger Lawyers Division Officersawyers Division Officersawyers Division Officersawyers Division Officersawyers Division OfficersPresident-Elect Peter J. Daughtery, ColumbusSecretary Andrew W. Jones, MariettaTreasurer Derek J. White, Savannah

ABABABABABA Delegates frA Delegates frA Delegates frA Delegates frA Delegates from Georom Georom Georom Georom GeorgiagiagiagiagiaPost 1 Allan Jay Tanenbaum, AtlantaPost 3 Cubbedge Snow Jr., MaconPost 5 S. Kendall Butterworth, AtlantaPost 7 Linda A. Klein, Atlanta

New BoarNew BoarNew BoarNew BoarNew Board of Governors Membersd of Governors Membersd of Governors Membersd of Governors Membersd of Governors MembersChattahoochee Post 3 Richard A. Childs, ColumbusCobb Post 5 J. Stephen Schuster, MariettaDouglas Barry R. Price, DouglasvilleSouth Georgia Post 1 George C. Floyd, BainbridgeSouthern Post 1 James E. Hardy, ThomasvilleSouthern Post 3 William E. Moore Jr., ValdostaStone Mountain Post 3 Lynne F. Borsuk, Decatur

CurrCurrCurrCurrCurrent Boarent Boarent Boarent Boarent Board of Governors Members who will not serve after Juned of Governors Members who will not serve after Juned of Governors Members who will not serve after Juned of Governors Members who will not serve after Juned of Governors Members who will not serve after June20002000200020002000

Chattahoochee, Post 3 F. L. Champion Jr., ColumbusCobb, Post 5 Robert L. Beard Jr., MariettaDouglas Jeffrey P. Richards, DouglasvilleSouth Georgia Post 1 J. Brown Moseley, CairoSouthern Post 1 O. Wayne Ellerbee, ValdostaSouthern Post 3 William P. Langdale, ValdostaStone Mountain 3 Marvin H. Zion, Decatur

All newly-elected BoarAll newly-elected BoarAll newly-elected BoarAll newly-elected BoarAll newly-elected Board of Governors members and officersd of Governors members and officersd of Governors members and officersd of Governors members and officersd of Governors members and officerswill begin their term at the June 2000 Annual Meeting.will begin their term at the June 2000 Annual Meeting.will begin their term at the June 2000 Annual Meeting.will begin their term at the June 2000 Annual Meeting.will begin their term at the June 2000 Annual Meeting.

Board ApprovesDues Increase

The State Bar’s Board of Gover-nors approved a dues increase attheir Spring Meeting on March 25,2000. The $25 increase to the licensefees will be effective for the 2000-2001 Bar year, and appears on thedues notice which were mailed inApril.

The new fee structure is $175 foractive and $87 for inactive members.This is the first increaseto the membership dues in five years.

Payment is due July 1 and mustbe postmarked by the U.S. PostalService on or before August 1, 2000.After August 1, a $75 late fee willbe assessed. After September 1,members are no longer in goodstanding and will not appear in theBar Directory. After January 1, a$175 late fee will be assessed.

Members will receive only onedues notice. If you have not receivedyours, please call the membershipdepartment at (404) 527-8777 or(800) 334-6865 ext. 777.

Arthur Anthony pickup2/00 p84 AAA - new


constitute a prima facie case, shiftingthe burden of evidence.”47 Whencombined with the judicial silence onthe relationship of Trustees II toSection 44-5-86, the Armour opinionconfirms that, in the eyes of thejudiciary, the statutory provision andthe presumption of undue influenceare simply two separate issues.

Although in theory a challengerto a gift may attempt to proceedunder either the rule of Trustees II orSection 44-5-86, the case law hastended to limit the statute’s utility —or at least make its applicationunclear. Regarding the evidentiaryburden imposed by the statute,Georgia courts have held contradic-tory opinions. Use of the term “slightevidence” suggests that the statutereduces the burden of evidencerequired to prevail on a claim ofundue influence in a confidentialrelationship. Such an interpretationcomports with the treatment of“slight evidence” in other judicialcontexts.48 Moreover, the Armourcourt seemed to interpret the statuteas reducing the burden of proof froma preponderance of the evidence to“slight evidence.”49 Yet in a differentopinion, the Georgia Supreme Courtcast doubt on the validity of thisinterpretation. Despite a showing ofa confidential relationship betweenthe grantee and grantor, the Court inDaniel v. Etheredge50 approved ajury instruction requiring it to findevidence of undue influence by apreponderance of the evidence.51

Similarly, one Georgia decisionhas limited the expanse of the statuteby defining the quality of evidencerequired by the statute. In Jones v.Hogans52 the Supreme Court signifi-cantly limited the phrase “persuasionor influence.” There, the plaintiffsought to invalidate two deeds shegave to her nephew. The plaintiff hadgranted the first deed to her nephew

after he promised to take care of herin exchange for leaving him in herwill. Prior to an operation she washaving, he presented her with a deedthat she believed to be a will andasked her to sign it. She signed thesecond deed some time after theoperation when she was “in a weakand enfeebled condition incapable ofunderstanding the nature of anytransaction.”53 The lower courtinstructed the jury on O.C.G.A. § 44-5-86.54 Ignoring the literal languageof the statute, the Georgia SupremeCourt upheld the trial court’s limita-tion on the instruction which statedthat “‘a person standing in a confi-dential relation to another is notprohibited from exercising anyinfluence whatever to obtain benefitto himself. The influence must bewhat the law regards as undueinfluence.’”55 Hence, the Courteffectively placed on the plaintiff theneed to demonstrate the presence of“undue influence” rather than simply“influence.”

Thus, while the statute remains“on the books,” the courts’ contradic-tory and restrictive interpretations ofit caution against its application.

Eviden tiary RulesRegardin g Un dueIn fluen ce in Georgia

As the foregoing analysissuggests, Georgia law indicates thatthe presumption of undue influence,as articulated in Trustees II, repre-sents the most coherent approach toresolving claims of undue influencein the context of gift-making.Determining how the presumptionwill apply, however, necessarilyraises a number of difficult eviden-tiary questions. For instance, thechallenger to a gift must demonstratea “confidential relationship,” a“position of dominance,” and

“weakened mentality” to receive thebenefit of the presumption. Whilesuch inquiries are fact-based, Geor-gia courts have articulated certainprinciples that affect the treatment ofevidence. The following section setsforth the most prominent evidentiaryprinciples regarding undue influencein Georgia.

A. Establishing the Presumption ofUndue Influence1. Confidential RelationIn litigating an undue influence

case, counsel may wish to turn firstto the statutory definition of “confi-dential relation” to determinewhether the challenging party mightreceive the benefit of the presump-tion of undue influence. O.C.G.A.§ 23-2-58 states:

[a]ny relationship shall bedeemed confidential, whetherarising from nature, created bylaw, or resulting from contracts,where one party is so situatedas to exercise a controlling in-fluence over the will, conduct,and interest of another or where,from a similar relationship ofmutual confidence, the law re-quires the utmost good faith,such as the relationship betweenpartners, principal and agent,etc.56

Despite the significant body ofcase law interpreting this statute,however, courts addressing undueinfluence claims have frequentlydeparted from this statutory definition.For instance, several courts have foundthat a gift between relatives — arelationship “arising from nature” —did not necessarily imply a confiden-tial relationship.57 More relevant forpurposes of undue influence in gift-making and wills appears to be thegrantor’s placement of trust or specialconfidence in the beneficiary. Thus,Georgia courts and juries have found

Con tin ued from Page 15

69A P R I L 2 0 0 0

confidential relationships where thebeneficiary was the friend and care-taker of the grantor;58 the drafter andexecutrix of the grantor’s will;59 or thegrantor’s pastor.60

2. A Position of DominanceCounsel also will need to

consider the connection between theparties’ disparity of power and thetransaction in question. Early Geor-gia cases suggested that there was noneed for a challenger to establish thatthe beneficiary used his or herposition of dominance to effectuatethe transaction. As noted above, inTrustees II, the Georgia SupremeCourt rejected the rule that the juryhad to find that Mr. Nisbet exercisedinfluence over Mrs. Williams “aboutthis matter”; the existence of ageneral confidential relationshipbetween the parties, and Mrs.Williams’ weakened mentality, wassufficient to warrant a presumptionof undue influence.61 Recent cases,however, indicate that a challengermust demonstrate a more substantialnexus between the beneficiary’sposition of dominance and thedisputed gift. In particular, Georgiacourts would most likely require thata challenger show that a beneficiaryused his or her dominant position inprocuring the gift.62

3. Weakened MentalityAs noted above, a party seeking

to receive the presumption of undueinfluence also must establish by apreponderance of the evidence thatthe grantor suffered from a “weak-ened mentality.”63 Traditionally, achallenging party need not showimbecility; rather, the requisitemental deficiency to receive thepresumption must be such “as wouldprevent the grantor from understand-ing the nature of her act at the timethe [gift] was executed . . . .”64 Manycases have suggested that signifi-cantly less than actual imbecilitymay satisfy this legal standard. Inparticular, courts have upheld a

finding of weakened mentality in avariety of cases involving both oldage and associated infirmities.65 Yet,as in the case of proving a “positionof dominance,” it appears thatGeorgia courts are imposing aheightened standard for receiving thepresumption of undue influence.Indeed, in a recent case the GeorgiaSupreme Court approved a juryinstruction that required a showingof virtual imbecility to satisfy the“weakness of mind” requirement.66

B. Establishing Undue InfluenceShould the challenger to a gift

receive the presumption, the benefi-ciary may rebut it by demonstratingthat the gifts were free from anyundue influence. As noted above, thebeneficiary is not prohibited fromexercising any influence.67 Rather, hemust show that the gifts were freefrom influence amounting to duressor coercion.68 In the context of undueinfluence in wills, this showing hasturned on factors including: theexistence of a confidential relation-ship; the grantor’s dealings andassociations with the beneficiary; thegrantor’s habits, motives, or feelingsand her strength or weakness ofcharacter; the grantor’s family, socialand business relations; and themanner and conduct of the grantor.69

On the other hand, should thechallenger fail to raise the presump-tion or should the beneficiaryproduce evidence rebutting thepresumption, the challenger wouldhave the burden of proving undueinfluence. Generally, courts havebeen lenient in admitting circumstan-tial evidence.70 Nonetheless, provingundue influence by a preponderanceof the evidence will likely be diffi-cult for the challenger. Despitepermitting circumstantial evidence,courts have required a specificshowing of undue influence; themere opportunity to influence isinsufficient.71 Courts also have

upheld gifts where evidence indi-cates a rational purpose for them. InDaniel v. Etheredge,72 for instance,the Georgia Supreme Court upheld ajury instruction stating the followingregarding mental capacity:

If one should have mind andreason sufficient to have a de-cided and rational desire as towhat disposition he wishes tomake of his property and toclearly understand and appreci-ate the nature and consequencesof his act in making a deed ofgift, and he should make such adeed of conveyance of his prop-erty, having at the time suchdecided and rational desire to doso, and mind and reason toclearly understand that the na-ture of his act was to execute adeed to his property and that theconsequences of his act was todivest him or deprive him of histitle and convey it or invest it inanother, he would be capable ofmaking a deed of gift under thelaws of this State though hemight not have had greater men-tal capacity than that.73

Thus, if evidence indicates that thegrantor made the gifts for a specificpurpose — however peculiar orunnecessary — there would appear tobe a sufficient rational basis for thegifts to withstand challenge.

Con clusionChallenging gifts because of

undue influence poses a difficultendeavor. The law of undue influ-ence appears in many ways to favorupholding gifts absent a showing thatthe grantor lacked all free agency inthe transaction. As a matter of publicpolicy, Georgia courts have at-tempted to regulate gifts made inconfidential relations by establishinga presumption of undue influence in


certain classes of gifts. To receivethe benefit of the presumption, achallenger must demonstrate aconfidential relationship, thegrantor’s “weakened mentality,” anda position of dominance abused bythe beneficiary. Alternatively, if thechallenger fails to establish thepresumption, the burden remains onhim or her to prove by a preponder-ance of the evidence that the benefi-ciary coerced the grantor intomaking the gift. In either situation,the burden of persuasion will remainon the plaintiff, suggesting thatdisputed facts will generally beresolved in favor of the beneficiaryof the gift. U

Bertram L. Levy is a partner

in the Atlanta firm of Arnall

Golden & Gregory LLP

where he heads the firm’s pri-

vate wealth group. He is an

honors graduate of Vanderbilt

University and The University

of Michigan Law School. He

is a frequent author and lecturer on estate plan-

ning. Levy is a past chairman of the State Bar’s

Fiduciary Law Section, a fellow of the Ameri-

can College of Trusts and Estate Counsel and

has been selected for inclusion in The Best

Lawyers in America.

Robert P. Bartlett III was a

1999 summer associate in the

Atlanta firm of Arnall Golden

& Gregory. He is currently a

third-year student at Harvard

Law School, where he serves

as a Note Editor on the

Harvard Law Review. Prior to law school, he

earned his B.A. magna cum laude from Harvard

in 1996 and was a member of Phi Beta Kappa.

En dn otes1. Tidwell v. Critz, 248 Ga. 201, 206, 282

S.E.2d 104, 109 (1981) (quoting Bur-roughs v. Reed, 150 Ga. 724, 725, 105S.E. 290 (1920)).

2. See generally 10 Ga. Jur. Decedents’Estates and Trusts §§ 1:50-1:55 (1999)(discussing Georgia law of undue influ-

ence in wills).3. O.C.G.A. § 53-4-12 (1999) governs an

individual’s testamentary capacity. Itprovides that “[a] will is not valid ifanything destroys the testator’s freedomof volition, such as . . . undue influencewhereby the will of another is substitut-ed for the wishes of the testator.” Id.The statutory provisions governing un-due influence in gift-making are dis-cussed infra at page 15.

4. See Burroughs v. Reed, 150 Ga. 724,725, 105 S.E. 290, 291 (1920).

5. See id.6. See, e.g., Banks v. Todd, 184 Ga. App.

681, 682, 362 S.E.2d 410, 411 (1987).7. See text accompanying notes 8-16.8. See text accompanying notes 34-56.9. See Trustees of Jesse Parker Williams

Hosp. v. Nisbet, 191 Ga. 821, 844, 14S.E.2d 64, 76 (1941); Wheeless v. Gelzer,780 F. Supp. 1373, 1383 (N.D. Ga. 1991);Spikes v. Spikes, 89 Ga. App. 139, 147,79 S.E.2d 21, 26 (1953); Myers v. Myers,195 Ga. App. 529, 531, 394 S.E.2d 374,377 (1990).

10. 191 Ga. at 844, 14 S.E.2d at 76 (herein-after Trustees II).

11. See Trustees of Jesse Parker WilliamsHospital v. Nisbet, 189 Ga. 807, 808, 7S.E.2d 737, 739 (1940) (hereinafterTrustees I).

12. See Trustees II, 191 Ga. at 844, 14S.E.2d at 78.

13. Id.14. Id. at 841, 14 S.E.2d at 77. The pre-

sumption of fraud applied as follows:“‘upon proof of weak mind, and thatthe instrument was executed withoutconsideration, or was improvident orprofuse, fraud would be inferred, and torebut it, proof must be made that it wasthe voluntary act of the party himself,unmoved by the words or conduct ofthe party taking the benefit under it.’”Id. at 843, 14 S.E.2d at 77 (quotingCausey v. Wiley Banks & Co., 27 Ga.444 (1859)).

15. Id. at 842, 14 S.E.2d at 77 (quotingCausey, 27 Ga. 444).

16. Id. at 841, 14 S.E.2d at 76 (citing Eld-ridge v. May, 129 Me. 112, 150 A. 378(1930)).

17. See id. at 844, 14 S.E.2d at 78.18. Id. at 843, 14 S.E.2d at 77 (quoting

Frizzell v. Reed, 77 Ga. 724, 729(1886)).

19. 268 Ga. 158, 486 S.E.2d 356 (1997).20. Id. at 161, 486 S.E.2d at 358.21. Id. at 161, 486 S.E.2d at 358-59.22. See, e.g., Daniel v. Etheredge, 198 Ga.

191, 200, 31 S.E.2d 181, 188 (1944)(refusing to apply the presumption ab-sent a showing of a confidential rela-tionship, superior mental capacity ofthe grantee, and great disparity of boun-ty); Wheeless v. Gelzer, 780 F. Supp.1373, 1383 (N.D. Ga. 1991) (refusing

to apply the presumption in a grant ofstock from husband to wife despite evi-dence that the wife had the dominantmental position in the relationship).

23. See Trustees II , 191 Ga. at 841, 14S.E.2d at 77 (“[W]henever a fiduciaryor confidential relation exists betweenthe parties to a deed, gift, contract orthe like, the law implies a condition ofsuperiority held by one of the partiesover the other . . . .”) (citing Eldridge v.May, 129 Me. 112, 150 A. 378 (1930)).

24. See id. at 841, 14 S.E.2d at 77.25. See, e.g., Glenn v. Mann, 234 Ga. 194,

203, 214 S.E.2d 911, 918 (1975).26. See Wheeless, 780 F. Supp. at 1383

(“[S]imply because two individuals havea confidential relationship, the use ofsome influence by one to gain a benefitfor himself is not prohibited as long as theinfluence is not undue.”).

27. 206 Ga. 876, 59 S.E.2d 371 (1950).28. Id. at 878, 59 S.E.2d at 373 (emphasis

added).29. See Trustees II, 191 Ga. at 840, 14

S.E.2d at 75.30. See Boyce v. Murray, 195 Ga. App.

746, 747, 395 S.E.2d 255, 257 (1990)(directing verdict against grantee wherethe only evidence that grantor desiredfor the grantee to receive the gift con-sisted of the grantee’s own testimony tothat effect).

31. See Wheeless, 780 F. Supp. at 1384(citing Miller v. Miller, 258 Ga. 168,366 S.E.2d 682 (1988)).

32. See id. In Wheeless, the judge conclud-ed in a bench trial that the parties chal-lenging the grant of stock had failed tosatisfy their burden of persuasion be-cause the evidence regarding the grant-or’s mentality and the presence of un-due influence was conflicting. See id. at1387-88.

33. O.C.G.A. § 44-5-86 (1991).34. 73 Ga. 275 (1884).35. Id. at 281.36. 129 U.S. 663, 9 S. Ct. 420 (1889).37. Id. at 673, 9 S. Ct. at 424.38. 87 Ga. 634, 13 S.E. 806 (1891).39. Id. at 640, 13 S.E. at 807.40. Id. at 641, 13 S.E. at 808.41. Since Hadden, thirteen courts have sub-

sequently addressed O.C.G.A. § 44-5-86 or its predecessor provisions. SeeHill v. Fourth Nat’l Bank, 156 Ga. 704,120 S.E. 1 (1923); Dollar v. Griffin,170 Ga. 87, 152 S.E. 252 (1930); Ballv. Moore, 181 Ga. 146, 182 S.E. 28(1935); Simmons Hardware Co. v. Tim-mons, 180 Ga. 531, 179 S.E. 726(1935); Barron v. First Nat’l Bank &Trust Co., 182 Ga. 796, 186 S.E. 847(1936); Davis v. Liberty Co., 183 Ga.286, 188 S.E. 344 (1936); Armour v.Lunsford, 192 Ga. 598, 15 S.E.2d 886(1941); Hadaway v. Hadaway, 192 Ga.265, 14 S.E.2d 874 (1941); Jones v.

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Hogans, 197 Ga. 404, 29 S.E.2d 568(1944); Vinson v. Citizens & S. Nat’lBank, 208 Ga. 813, 69 S.E.2d 866(1952); Harrison v. Harrison, 214 Ga.393, 105 S.E.2d 214 (1958); Johnson v.Hutchinson, 217 Ga. 489, 123 S.E.2d551 (1962); Scoggins v. Strickland, 265Ga. 417, 456 S.E.2d 208 (1995). Thevast majority of these decisions focusedon determining whether the five yearstatute of limitations applied to a wifewho sought to void a gift that she grant-ed to her husband, who then used it assecurity for a loan.

42. It is somewhat peculiar that the plaintiffin Trustees did not raise § 44-5-86 inher complaint, as many of the chal-lenged gifts fell within the five yearstatute of limitations. See Trustees II,191 Ga. at 823, 14 S.E.2d at 70.

43. 192 Ga. 598, 15 S.E.2d 886 (1941).44. See id. at 601, 15 S.E.2d at 889.45. The instruction stated, “‘if you should

find there was great disparity between theages of Mrs. L. M. Armour and Mrs. Es-

telle Armour; that the parties occupied aconfidential relation to each other; thatthe deeds were without any considerationat all; or if there was a consideration andthe consideration was grossly inadequate;then I charge you that only slight evi-dence would be necessary to set the deedsaside.’” Id. at 602-03, 15 S.E.2d at 888.

46. The Court held that the instruction shouldnot have mentioned consideration or ade-quacy of consideration. See id.

47. Id. at 599, 15 S.E.2d at 889; cf. Haddenv. Larned, 87 Ga. 634, 641, 13 S.E. 806,808 (1891) (holding that the statute“throws the eight of the legal presump-tion in favor of the gift and not againstit”).

48. See, e.g., Stinson v. State, 215 Ga. App.12, 13, 449 S.E.2d 544, 545 (1994) (not-ing that slight evidence will justify a jurycharge even where the preponderance ofthe evidence tends to show thenon-existence of a disputed fact); see gen-erally In re R.L.Y., 181 Ga. App. 14, 16n.5, 351 S.E.2d 243, 246 n.5 (1986)

(ranking “slight evidence” as the secondlowest of ten evidentiary burdens in Geor-gia).

49. See supra note 46.50. 198 Ga. 191, 31 S.E.2d 181 (1944).51. See id. at 195, 31 S.E.2d at 184.52. 197 Ga. 404, 29 S.E.2d 568 (1944).53. Id. at 405, 29 S.E.2d at 569.54. Though decided three years after Trust-

ees II, the Court’s opinion made nomention of whether the presumptionshould apply in the case.

55. Hogans, 197 Ga. at 413-14, 29 S.E.2dat 574. But see Scoggins v. Strickland,265 Ga. 417, 418, 456 S.E.2d 208, 209(1995) (upholding directed verdict be-cause the transcript reveals “not ‘theslightest evidence of persuasion or in-fluence’”) (citing O.C.G.A. § 44-5-86).

56. O.C.G.A. § 23-2-58 (1982).57. See, e.g., Thomas v. Garrett, 265 Ga.

395, 397, 456 S.E.2d 573, 575 (1995)(finding that aunt and her nieces did nothave a confidential relationship becausethe aunt “conducted all of her own busi-

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ness affairs independently of, ratherthan through, [her nieces]”); cf. Crumb-ley v. McCart, 271 Ga. 274, 276, 517S.E.2d 786, 787 (1999) (“The fact thatPropounder and Testator were brothersdoes not demonstrate the existence ofsuch a confidential relationship.”). Butsee Mathis v. Hammond, 268 Ga. 158,160, 486 S.E.2d. 356, 358-59 (1997)(confidential relationship arose betweenmother and daughter); Childs v. Shep-ard, 213 Ga. 381, 382, 99 S.E.2d 129,130 (1957) (confidential relationshiparose where grantees were cousins ofthe grantor who was 95 years old).

58. See, e.g., McGahee v. Walden, 216 Ga.352, 353, 116 S.E.2d 559, 560 (1960)(finding confidential relationship be-tween grantor and beneficiary wherethe beneficiary cared for the grantor inher illness, took care of her personalbusiness, hired nurses for her andchanged her bank account into a jointone with the beneficiary); Banks v.Todd, 184 Ga. App. 681, 362 S.E.2d410 (1987) (finding a confidential rela-tionship between an “old friend” ofgrantor who moved to the grantor’s cityto assist her); cf. Dean v. Morsman, 254Ga. 169, 327 S.E.2d 212 (1985) (find-

ing confidential relationship betweentestator and beneficiary of will wholived in the testator’s home, kept housefor him, paid his bills, and attended tohis personal and business affairs).

59. See Hudson v. Abercrombie, 255 Ga.376, 338 S.E.2d 667 (1986) (findingevidence of a confidential relationshipin testator’s reliance upon the beneficia-ry to draft her will).

60. See Bryan v. Norton, 245 Ga. 347, 348,265 S.E.2d 282, 283 (1980) (findingpastor to be in a confidential relation-ship with testator where testator was aheavy drinker, advanced in age, and inill health).

61. See supra text accompanying note 17.But see Lewis v. Foy, 189 Ga. 596, 600,6 S.E.2d 788, 791 (1940) (“[T]he pro-tection of law in reposing this confi-dence . . . is applicable only to the par-ties while the relationship exists andwith reference to the matter involved inthat relationship.”).

62. See, e.g., Scoggins v. Strickland, 265Ga. 417, 456 S.E.2d 208 (1995) (up-holding the trial court’s determinationthat there was no evidence that the ben-eficiary “had a hand in” the disputedinter vivos transfer); cf. Crumbley, 271

Ga. at 275, 517 S.E.2d at787 (“[I]n the context ofa will contest, evidenceshowing only that thedeceased placed a gener-al trust and confidence inthe primary beneficiaryis not sufficient to triggerthe rebuttable presump-tion that undue influencewas exercised.”) (citingKing v. Young, 222 Ga.464, 150 S.E.2d 631(1966)).63. See Jones v. Hogans,197 Ga. 404, 411, 29S.E.2d 568, 572 (1944).64. Id.65. See, e.g., McGahee v.Walden, 216 Ga. 352,352-53, 116 S.E.2d 559,560 (1960) (evidenceshowed grantor “was aninfirm and aged woman,suffering from a braintumor, whose mental andphysical condition de-clined during the lastyears of her life, weak-ened by the damage toher brain by the illnessfrom which she died”);Johnson v. Hutchinson,217 Ga. 489, 489, 123S.E.2d 551, 552 (1962)(evidence showed grant-or to be “72 years of age,blind, suffering from

physical and mental conditions affect-ing her mental processes such as loss ofmemory, loss of concentration, and se-nile dementia . . . ”); Parker v. Spurlin,227 Ga. 183, 187, 179 S.E.2d 251, 254(1971) (evidence showed that grantorwas 80 years old, practically blind, fee-ble, suffered from heart trouble, highblood pressure and a lack of memory);Bradshaw v. McNeill, 228 Ga. App.653, 655, 492 S.E.2d 568, 571 (1997)(evidence showed that grantor lived in anursing home, suffered from generalmental weakness and also “occasionallyappeared confused, disoriented, andagitated”).

66. See Coile v. Gamble, 270 Ga. 521, 522,510 S.E.2d 828, 829 (1999) (The juryinstruction stated “‘weakness of mindnot amounting to imbecility is not suffi-cient mental incapacity to justify settinga deed aside.’”); see also Wheeless v.Gelzer, 780 F. Supp. 1373, 1377 (N.D.Ga. 1991) (rejecting claim of weakenedmentality despite grantor’s advancedage, increased alcohol consumption,failure to recognize neighbors and chil-dren, and inappropriate dress).

67. See Scurry v. Cook, 206 Ga. 876, 879,59 S.E.2d 371, 373 (1950) (“Nor can allinfluence be said to be undue, since aperson is not prohibited from exercisingproper influence to obtain a benefit tohimself.”).

68. See id. (noting that influence must be“of that potency which substitutessomebody else’s will power for that ofthe donor”).

69. See, e.g., Bowman v. Bowman, 205 Ga.796, 797, 55 S.E.2d 298, 299 (1949).

70. See Scurry, 206 Ga. at 876, 59 S.E.2dat 371; cf. Bryan v. Norton, 245 Ga.347, 349-50, 265 S.E.2d 282, 284(1980) (permitting caveator to intro-duce evidence as to bad character of thepropounder of a will to prove undueinfluence).

71. Cf. Perkins v. Edwards, 228 Ga. 470,475, 186 S.E.2d 109, 113 (1971)(“[T]he mere opportunity to exert un-due influence by the propounder wasnot sufficient to invalidate the willsought to be propounded.”).

72. 198 Ga. 191, 315 S.E.2d 181 (1944).73. Id. at 196, 315 S.E.2d at 186.

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mary judgment to the defendantstating that the plaintiff need notshow how long a substance had beenon the floor unless the defendant hadestablished that reasonable inspec-tion procedures were in place andwere followed at the time of theincident.30 The court reasoned thatthe defendant had the evidence ofinspection procedures in its powerand the failure to produce suchevidence created a negative pre-sumption in favor of the plaintiff.31

Since Straughter, the court hasheld that reasonable inspectionprocedures can be established by amanager’s affidavit testifying thatthe defendant had a policy of in-specting its store every thirty min-utes and that the area was inspectedthirty minutes prior to plaintiff’s fall,and such evidence shifts the burdento the plaintiff to show that thesubstance was on the floor for alength of time sufficient for knowl-edge to be imputed to the defen-dant.32 On the other hand, testimonythat the floor is usually swept everyhour is not sufficient to require theplaintiff to prove the amount of timethe foreign substance had beenpresent on the floor.33

Con clusionIn Robinson v. Kroger Co., the

Supreme Court of Georgia picked upthe slip and fall plaintiff, dusted himoff, and elevated him to the samestatus as any other personal injuryplaintiff. Slip and fall cases are nolonger subject to summary adjudica-tion on the issue of the plaintiff’sexercise of ordinary care for his ownsafety. Furthermore, a claimant doesnot have to prove the amount of timethe substance was on the floor unlessthe defendant business ownerdemonstrates that a reasonableinspection procedure was in placeand followed on the day of the

of the dangerous condition and couldhave easily discovered and removed thehazard. The fact that Rodriguez admit-ted that the alleged dangerous substancewas not visible precludes finding thatthe City’s employee could have easilynoticed and corrected it.” Id. at 867,502 S.E.2d at 741; see also Haskins v.Piggly Wiggly S., Inc., 230 Ga. App.350, 496 S.E.2d 471 (1998).

25. Sharfuddin v. Drug Emporium, Inc., 230Ga. App 679, 498 S.E.2d 748 (1998).

26. “Although our Supreme Court in Robin-son v. Kroger Co. modified the burden onthe parties on the second prong of theelements of a foreign substance slip andfall case, the Supreme Court did not re-vise the contents of the first element normodify the burden of proof on this ele-ment.” Id. at 685, 498 S.E.2d at 753.

27. Id. at 684, 498 S.E.2d at 752.28. Id.29. Straughter v. J. H. Harvey Co. Inc., 232

Ga. App. 29, 500 S.E.2d 353 (1998),cert. denied (Ga. Sept. 11, 1998).

30. Id. at 30, 500 S.E.2d at 355.31. Id. at 31, 500 S.E.2d at 355.32. Hopkins v. Kmart Corp., 232 Ga. App.

515, 502 S.E.2d 476 (1998).33. Ingles Mkts., Inc. v. Martin, 236 Ga.

App. 810, 513 S.E.2d 536 (1999).

Con tin ued from Page 11 accident. With greater access to ajury, the slip and fall plaintiff’s bestdays are yet to come. U

Michael L. Goldberg works in the areas of pre-

mises liability and transpor-

tation law at the law firm of

Dennis, Corey & Porter. He

received his B.A. degree from

Mercer University in 1994,

and his J.D. from the Univer-

sity of Georgia in 1997.

En dn otes1. Queen v. Kroger Co., 191 Ga. App.

249, 381 S.E.2d 413 (1989).2. Mazur v. Food Giant, Inc., 183 Ga.

App. 453, 359 S.E.2d 178 (1987).3. Kitchens v. Restaurant Management

Servs., Inc., 192 Ga. App. 313, 385S.E.2d 11 (1989).

4. Clemons v. Piggly Wiggly, Inc., 193Ga. App. 309, 387 S.E.2d 600 (1989).

5. Robinson v. Kroger Co., 268 Ga. 735,493 S.E.2d 403 (1997).

6. Alterman Foods, Inc. v. Ligon, 246 Ga.620, 272 S.E.2d 327 (1980).

7. Id. at 623, 272 S.E.2d at 330.8. Robinson, 268 Ga. at 743, 493 S.E.2d

at 410.9. Foodmax v. Terry, 210 Ga. App. 511, 436

S.E.2d 725 (1993); Bruno’s, Inc. v. Pend-ley, 215 Ga. App. 108, 449 S.E.2d 637(1994); Vermont Amer. Corp. v. Day, 217Ga. App. 65, 436 S.E.2d 618 (1995).

10. Alterman Foods, 246 Ga. at 623, 272S.E.2d at 330.

11. Robinson, 268 Ga. at 735, 493 S.E.2dat 405.

12. Id. at 743, 493 S.E.2d at 410.13. Id. at 740, 493 S.E.2d at 408.14. Id. at 740-41, 493 S.E.2d at 409.15. Id. at 748, 493 S.E.2d at 414.16. Id.17. Id.18. Id. at 748-49, 493 S.E.2d at 414.19. Id. at 748, 493 S.E.2d at 414.20. Kroger Co. v. Brooks, 231 Ga. App. 650,

500 S.E.2d 391 (1998); Watson v. KrogerCo., 231 Ga. App. 741, 500 S.E.2d 631(1998); Smith v. Toys ‘R’ Us, Inc., 233Ga. App. 188, 504 S.E.2d 31 (1998).

21. Robinson, 268 Ga. at 748-49, 493S.E.2d at 414.

22. Newman v. Ruby Tuesday, Inc., 184Ga. App. 827, 363 S.E.2d 26 (1987).

23. Hardee’s Food Sys., Inc. v. Green, 232Ga. App. 864, 502 S.E.2d 738 (1998).

24. “Constructive knowledge can only beinferred where there is evidence that anemployee was in the immediate vicinity

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