State Bar Election Results
The State Bar of Georgia election ballots have been counted. I will be Secretary of the State Bar beginning in June.
When you see a turtle on a fence post, you know somebody put him there. A lot of hard working Georgia lawyers put me on this fence post. For them, I will keep my focus on practical, nuts and bolts matters affecting the everyday practice of law.
My opponent, Nancy Whaley, ran a strong race and really made me work for it. I commend her hard work and willingness to serve. She has a bright future.
I look forward to several years of service, seeking to improve our profession and court system.
24/7/365 legal culture detracts from lawyers' roles in family & community
Lawyers who are accessible to their firms and clients 24/7/365 lead more stressful lives, burn out faster, and too often fail in their important roles in families and communities. That is the essence of a report from the New York State Bar Association's Special Committee on Balanced Lives in the Law.
When young lawyers are frequently at their desks on Saturdays, they are not spending free time with their families. And too often they are not making time for the citizenship activities that have been the traditional obligation of lawyers. One contributing factor is technology. E-mail, BlackBerrys, cell phones and other devices make it possible for lawyers to be always on call to their firms and clients.
After 30 years practicing law in the trenches, I have seen pretty much all sides of this. I spent way too many Saturdays at the office as a young lawyer in a firm where everyone was expected to "show the flag" on Saturday. However, I made it to most of my kids' sports events and a lot of Boy Scout weekend trips. However, to my everlasting regret, I remained chained to the desk when I should have accompanied my son on Boy Scout trips rafting through the Grand Canyon and canoeing through a Canadian wilderness. Those opportunities do not come twice.
The flip side of the coin is that technology enables us to respond to client needs away from the office. There have been times when I was able to use a PDA to quickly deal with a question from home or on vacation, and get back to family matters. The challenge is to remain the master of the technology, and not to let it master you. For me, one positive change has been the switch from an intrusive Blackberry to another device that lets me check for messages when I choose rather than constantly vibrating in my pocket.
I know lawyers in firms both large and small who have done an admirable job of being there for their families on a regular basis. My brother-in-law, who is in charge of the business and real estate practice at a large firm in another state, comes to mind as an example. He found the time to be there for his son's sports and Scouting activities, including a lot of weekend travel, chaired major projects in the church, and has served on numerous significant boards in his city.
On the other hand, I know lawyers in firms both large and small who have been chained to their desks almost every Saturday and Sunday, missing out on much that is important in life.
When I was coming up, in the days before rampant lawyer advertising, the only way a lawyer could advertise was to be active in the community. Therefore, lawyers were drawn to service in civic clubs, service organizations, and in public office. Now too often those roles are seen as unnecessary burdens and distractions. Our profession and our communities are poorer in many ways because so many people with the intelligence, energy and training that it takes to become successful in the legal profession have been withdrawn from those roles.
But there are cautionary examples of lawyers who launch so deeply into the outside roles that they are overwhelmed by economics. I once knew a young lawyer whose legislative service was making it too hard to make a living practicing law. When the commission chairman of a large urban county resigned, this young lawyer quit the legislature to run for chairman against a high profile candidate with a famous family name. I thought he would go down to defeat in a blaze of publicity, and get back to practicing law. However, he "won" a full-time, high profile public office with a salary of $17,000 a year that precluded any significant law practice. The sad end of that story is that in need of funds for his growing family, he stepped on to a slippery slope that led to a term in "Club Fed."
One of the challenges for Bar leaders is to find ways to alter the dynamic so that lawyers and law firms might find ways to meld family and community involvement with law practice in ways that contribute to their own long term professional and financial success. Nobody said it would be easy.
State Bar election: the ballots have arrived
Today thousands of members of the State Bar of Georgia received their ballots for the State Bar election. I am a candidate in the only contested statewide race, for the office of Secretary.
For some insight into why I am doing this, see:
- Why Run for State Bar Office?
- State Should Avoid 'Law of Unintended Consequences
- Virtue, or why legal ethics should not be an oxymoron
Both candidates have done roughly comparable amounts of work on Bar committees and boards, and both have core groups of supporters.
However, for whatever individual lawyers may think it is worth, I am the only candidate who:
- Has more than three decades experience as a lawyer, starting as an Assistant District Attorney in a rural circuit and including over 28 years in a broad range of private practice experience.
- Has raised and supported a family by representing clients who are free to choose another lawyer.
- Has peer ratings of
- “AV”(Martindale-Hubbell Law Directory),
- "Super Lawyer” (Atlanta Magazine), and
- “Legal Elite” (Georgia Trend);
- “AV”(Martindale-Hubbell Law Directory),
- Has led in the conception, drafting and lobbying for legislation with practical benefits in the practice of law.
- Is currently on the Executive Committee, elected by the Board of Governors.
Questions & comments 0
Why run for State Bar office?
Some of my friends have asked why in the world I would take time from my busy law practice for volunteer service on the State Bar Executive Committee and now to run for Secretary of the State Bar of Georgia. That's a fair question that deserves an answer more serious than, "it's on my bucket list."
Perhaps the fact that one would campaign statewide, spending precious time and money competing for a job that does not pay, is proof of one's unfitness for the office and of the continuing validity of the "Peter Principle."
However, even after all these years practicing law “in the trenches,” I'm still just idealistic enough to believe we all have an obligation to improve the law and our profession. Together we have an opportunity to improve both the perception and the reality of our profession and court system. After thirty years in this profession, and fifteen years learning how to get things done in the State Bar, I want to do my part. That does not take from my law practice, but ultimately strengthens it.
The State Bar's public service ads you may have seen recently on TV are paid for with lawyers' voluntary contributions to the Legislative & Advocacy Fund. The ads are a good step in the right direction but they are not enough.
In order to make progress, we must maintain continuity of effort and leadership over a period of years to
? reinforce virtue in our own ranks,
? address practical, nuts and bolts issues that affect our
representation of clients and our lives as practicing attorneys,
? heighten the public's recognition of the importance of independent lawyers and judges in upholding their freedoms, and
? improve liaisons with the legislative and executive branches of state government, with the business community, and with other professional organizations in Georgia.
Anything the Bar considers doing should be measured by the test of practicality and common sense. We should keep in mind a few of rules of thumb for practicality:
- The KISS principle, though it is hard to keep anything simple in law. Ideas that sound great in theory fall flat if they are so complicated that they increase transaction cost beyond what the market can bear.
- Remember that the perfect is often the enemy of the good, and that the toughest choices are not between good and bad, but between good and good and between bad and bad.
- In the words of Larry the Cable Guy, “Get ‘er done.” While some things the Bar does can legitimately take several years of study and deliberation, a lot of practical projects need a fast track approach. There is no reason why some of these projects -- which I won't name here -- should take longer than it took the US to win World War II. Recruit lawyers who already have expertise in the subject matter for a short term project team, get the job done, and move on.
Now that the opportunity has arisen to move up the State Bar leadership ladder, I realize that the circuitous path of my career over the past thirty plus years may have prepared me reasonably well to represent a cross-section of practicing lawyers in Georgia. It is somewhat startling to realize that I'm the:
And I admit that I sometimes enjoy the "chess game" of helping to run an organization larger than my law practice, enjoy having a place at the table when issues affecting our profession are decided, and to some extent may have this on my "bucket list."
How our team used a minor role in the State Bar to win enactment of practical, nuts and bolts legislation
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Before election to the State Bar Board of Governors, during the 1990's I went through a sequence of offices in the Tort & Insurance Practice Section -- Secretary-Treasurer, Section Chair, and then a few years as Legislative Chair. When I became Section Chair in June 1994, I sat down at breakfast with a mix of plaintiff and defense lawyers to map a consensus legislative strategy. While I was by then in plaintiffs' practice, some of the most respected insurance defense lawyers in the state were involved.
That month I appointed small ad hoc task forces co-chaired by defense and plaintiff attorneys and filled with both plaintiff and defense lawyers with practical experience on the issues they would address. Each had sixty days to report back with a bill drafted. By the end of the summer we had half a dozen legislative proposals and had found some allies. Our bills cleared the State Bar Advisory Committee on Legislation and the Board of Governors by October, and we lined up sponsors in the General Assembly. Along with other members of our team, I met with legislators and testified before the House and Senate Judiciary Committees.
Along the way, we did meet some opposition that slowed us down. And we added another one in a subsequent year. However, with perseverance we eventually saw several of our proposals enacted into law. Those include:
- O.C.G.A. § 33-24-56.1. Full compensation rule on reimbursement of first party insurance benefits out of injury settlements helps facilitate reasonable settlements of tort cases.
- O.C.G.A. § 9-11-30(b)(4). Amendment authorizes use of video depositions by notice, rather than old requirement of a court order or stipulation of counsel prior to video recording of depositions.
- O.C.G.A. § 9-11-4(f)(3)(B)(iii) conforms to the federal rule and the Hague Convention, permitting international service of process by mail unless prohibited by the receiving country.
- O.C.G.A. § 9-10-93 provides for venue over resident and nonresident defendants in the county of the resident defendant. Previously it was necessary to have independent grounds of venue against resident and nonresident defendants, so that it was sometimes impossible to include both in the same action.
State Bar Center unscathed by tornado
The Georgia Bar Center in downtown Atlanta was previously the Federal Reserve Bank building. A great stone edifice with bulletproof glass windows, it is built like a fortress. It even has a currently unused shooting range in the basement which in the old days armored car guards and Secret Service used for practice.
When a tornado ripped through downtown Atlanta last week, severely damaging buildings for blocks around it, the Bar Center was undamaged. It stood like a rock. While the Omni Hotel and CNN Center a block away lost a lot of glass, the Bar Center's bulletproof windows didn't even have a scratch. While the tornado knocked holes in other roofs and a few buildings collapsed, the Bar Center had no immediately visible damage.
There is a metaphor in there somewhere. As our late pastor used to say, "that'll preach." I'm reminded of the song I learned as a preschooler in Sunday School about the wise man who built his house upon the rock and the foolish man who built his house upon the sand. But let's not stretch this too far.
Continue Reading Questions & comments 1Visit to Macon Bar Association
Bibb County Courthouse
At the Board of Governors meeting on January 12th, a couple of very kind and generous friends put my name in nomination for Secretary of the State Bar of Georgia. Perhaps that is in the "be careful what you ask for" category. Let's just say it's on my "bucket list" (though I'm in good health).
Last Friday, I had lunch with the Macon Bar Association at the Armory Ballroom, which was built in 1885 as the home of the Macon Volunteers, a local militia unit founded in 1825. It was great to visit with some old friends, meet a lot of good Macon lawyers I did not know, and have an opportunity to made a short pitch about this bar election. Last month I tried a tractor trailer accident case there in the State Court of Bibb County, but this was a different sort of visit.
The main speaker at lunch was the new Mayor of Macon, Robert Reichert. I first met Mayor Reichert in the early 1980's when we were both young associates in law firms taking depositions together. He was an impressive young State Representative in the mid-1990's when I was lobbying for legislation for the Tort & Insurance Practice Section of the Bar. He now has an incisive analysis of the challenges facing Macon and a practical game plan for moving the city forward.
Macon City Hall
Article about sales tax on legal services published in Daily Report
The Fulton County Daily Report has published my analysis of the unintended consequences of a sales tax on legal services, an earlier draft of which appeared in this blog a couple of days ago. It must have been a slow news day because they gave me a full page.
Georgia legislators' proposal to tax legal services may have unintended consequences
As a trial attorney handling serious injury and wrongful death cases in Georgia, I have an intense interest in seeing that my clients are dealt with fairly, that the playing field is relatively level, and that the court system works reasonably well.
Currently there is a proposal in the legislature to impose a sales tax on services, including legal services, as part of a plan to eliminate property taxes for support of education. That proposal arises from deeply held feelings that the tax burden falls unfairly upon property owners. As a homeowner, I share that sentiment every time I receive a property tax bill. But as a parent whose children graduated from excellent public high schools, I know what a bargain that can be compared to private school tuition. Georgia should improve, and not diminish, support for quality public education.
Whatever general revenue measures our legislators may choose to support the quality of public education needed to provide Georgia an economically competitive workforce, it is important to examine the ramifications in detail. Specifically regarding the proposed tax on legal services, our legislators should consider a broad range of potential unintended consequences on our system of justice and the delivery of legal services.
Conflict with duty of confidentiality. Under current enforcement statutes, the Georgia Department of Revenue, under its audit authority, could claim access to detailed client billing records which are confidential under Georgia Rule of Professional Conduct 1.6. This could create a serious conflict between lawyers' confidentiality obligations to clients and the requirement to respond to audit requests.
Burden on individuals but not businesses or governments that litigate against them. Individual Georgia citizens would bear the entire burden of the tax as currently proposed, while governments, corporations and insurance companies who litigate against them would be entirely free from the tax. This would make the playing field even more uneven in favor of corporate and governmental litigants and against individual Georgians.
Economic incentive to shift legal services – and law firms’ work, staff and investment – outside Georgia. A tax on legal services would encourage sophisticated clients, and those in border communities, to use untaxed legal services outside Georgia. It would also create an incentive for Georgia law firms to perform more services outside Georgia, and to shift investment in facilities, staff and support services to other states. Given the ease of gaining admission in many other states by reciprocity, even the smallest firms might find it advantageous to do so. Determining which services are taxable in Georgia would be an administrative nightmare.
Burden on citizens’ constitutional right of access to courts. A tax on legal services would be a burden on the exercise of Georgia citizens’ basic, constitutional right of access to justice and to the courts.
“Misery tax”. The sales tax on legal services as proposed would amount to a “misery tax” levied on individuals and families in Georgia at times of misfortune and vulnerability. It is generally necessity rather than choice that leads Georgians to seek legal assistance in cases involving death, divorce, domestic abuse, end-of-life decisions, injury, accusation of criminal offenses, or bankruptcy.
Effect on injury cases. Recovery for bodily injury is not taxable under either federal or state income tax laws, as our lawmakers have long recognized that there is no profit when an injured person involuntarily exchanges good health for a specified amount of money. The tax on legal services would erode the injury victim’s recovery for such injury, thereby making it even more difficult – and potentially more expensive – for corporations and insurance companies to reach reasonable compromise settlements. Moreover, an Georgian injured on the job gets no more than $450 per week in workers compensation indemnity benefits. If an attorney is required to obtain the benefits, a 25% attorney fee of $112.50 per week leaves only $337.50 for the injured worker. (The weekly benefit was recently increased to $500 per week for new claims, but you get the idea.) A tax on legal services would further erode that meager benefit, thus increasing pressure to raise workers compensation benefits, a cost which eventually would be passed on to Georgia businesses.
Experience of other states. Apparently only Hawaii, New Mexico, and South Dakota currently tax legal services. Florida and Massachusetts enacted such taxes, but promptly repealed the measures when they proved to be unpopular and difficult to administer. Several other states, including Maine, Maryland, Ohio, and Vermont, as well as the District of Columbia, rejected similar proposals.
Constitutional questions. There are numerous unresolved questions as to the constitutionality of the proposed tax on legal services, which the State of Georgia might well have to litigate over the next several years, including but not limited to the following:
• Access to courts. Would the proposed tax on legal services impermissibly burden access to and use of the state or federal courts in violation of Art. 1, § 1, ¶ 9 Ga. Const. of 1983, Article III of the U.S. Constitution and the 5th, 6th and 14th Amendments to the U.S. Constitution?
• Equal protection and due process. Would unequal treatment of individuals and corporations, whereby a tax would be imposed on an individuals party’s access to the courts but no tax would be imposed upon a corporate party in the same litigation, be a violation of the Georgia Constitution under Art. 1, § 1, ¶ II (equal protection) and under Art. 1, § 1, ¶ I (due process of law), and the 14th Amendment to the U.S. Constitution?
• Separation of powers. Would the proposed tax on legal services constitute an unauthorized regulation of the practice of law by the Legislature in violation of the constitutional guarantee of separation of powers under Art. 1, § 2, ¶ III of the Georgia Constitution?
• Tax on litigation in federal courts may violate U.S. Constitution Supremacy Clause. Would the proposed tax on legal services, in connection with litigation before the federal courts, violate the Supremacy Clause contained in Article VI of the U.S. Constitution?
• Breach of confidentiality burdening right to counsel. Would the proposed tax on legal services breach the attorney-client privilege and confidentiality, and thus impermissibly burden the right to counsel under both Art. 1, § 1, ¶ I of the Georgia Constitution and the 6th and 14th Amendments of the U.S. Constitution?
• Taxing some professions while exempting others may violate equal protection of law. Would imposing a tax on services performed by the legal, accounting, architectural and other professions, while exempting services rendered by the medical profession, be a violation of equal protection rights under Art. 1, § 1, ¶ II of the Georgia Constitution, and the 14th Amendment to the U.S. Constitution?
• Burden on rights guaranteed in U.S. Constitution. Would the proposed tax on legal services impermissibly burden the exercise of rights secured by the 5th, 6th, and 8th Amendments to the U.S. Constitution?
We should encourage efforts to make our system of taxation more fair and efficient. At the same time, we should be careful to avoid the “law of unintended consequences," which could wreak havoc if a tax on legal services were enacted.
An opening on Fulton Superior Court, and the crisis in judicial compensation
My law school classmate and long-time friend, Fulton County Superior Court Judge Stephanie Manis, has announced that she will be taking senior status on October 31st.
In law school, Judge Manis was a young mom going back to law school after working several years as a social worker. With a spouse and three young children, she had a more mature perspective than those of us who were straight out of college, single, naive, and unburdened by adult responsibilities. After graduation she clerked for a Georgia Supreme Court Justice, then moved on to the Georgia Attorney General's office. She was appointed to Superior Court in 1995, and has been a bright, engaged, stalwart judge for twelve years. I doubt that there is a judge on the bench for whom I have any higher personal and professional regard.
For years, I aspired to become a judge. In 2002 I made the "short list" for a judicial appointment. At the interview, the Governor at that time asked, "what would possess you to give up your law practice to go on the bench?" I explored the possibility of running for an open seat in '04 but realized I would have to raise and spend nearly half a million dollars to be competitive in an election campaign for a job that would involve a substantial pay cut. Judge Manis and I had a long talk over lunch about the pros and cons of seeking a judgeship at that time. While I decided not to run, I considered the possibility that whenever she took senior status I might seek the appointment.
Those of us who closely observe the judicial system see that, at least in Fulton County, there is a tendency for judicial positions to attract people who come from government careers, e.g., Assistant Attorney General, Assistant District Attorney, County Attorney, etc., rather than lawyers who come from private practice. Government lawyers have time invested in retirement systems that are typically very compatible with the judicial retirement system, and the judicial salary is at least a small step up from most other government attorney positions. It is less common, especially in metro counties, for lawyers in a successful private practice to become judges. Many -- though not all -- of those who do appear to have substantial assets, a spouse in a highly compensated field, or both. That is the economic reality in light of the crisis in judicial compensation, whereby both state and federal judges are paid on par with a first or second year associate in a large law firm.
While many of these public servants make excellent judges, what the judicial system loses is the perspective of lawyers who have spent decades practicing law and litigating cases in the private sector. It is important to pay judges enough that private practice lawyers in their prime years can afford to go on the bench and still send their kids to college. While judicial salaries are attractive to government lawyers and less successful private practitioners with political connections, and do not deter those who are independently wealthy, reasonably successful middle class lawyers in private practice, and with families to support, simply cannot afford the pay cut. With the crisis in judicial compensation, it is amazing that we have as many good judges as we do.
Even when a seasoned private practice lawyer with an excellent professional reputation does go through the nomination process, the tendency of Governors of both parties has been to pick government lawyers and political figures over seasoned private practice litigators, so the reaction of many who could afford the pay cut is, "why bother?" In the last couple of rounds of Fulton County judicial appointments, I have seen friends who would have been stellar judges passed over in favor of young government lawyers who are fine, but have negligible private practice experience.
I have two kids in college, my practice is going well, we have a single income household, and I have no political chips to cash in. So, to answer my friends who have asked, I will not seek appointment to the open position on Fulton Superior Court.
As a member of the State Bar Executive Committee and Board of Governors, I will continue to support a significant and long overdue increase in pay for all our trial and appellate judges, hoping it will benefit the system by attracting lawyers slightly younger than me from private practice to the bench in the future.
Continue Reading Questions & comments 1Need to revise Georgia Rule of Professional Conduct 4.3
Here's another Georgia Rule of Professional Conduct that make need some revision. Our Rule 4.3 differs from the ABA Model Rule 4.3 in ways that are well-intended but have unintended consequences.
ABA Model Rule 4.3 provides:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding. The lawyer shall not give legal advice to an unrepresented person, other than the advice to secure counsel, if the lawyer knows or reasonably should know that the interests of such a person are or have a reasonable possibility of being in conflict with the interests of the client.
In 2002, the ABA added the last sentence ("The lawyer shall not give legal advice...") to the rule. Before the 2002 amendments a similar prohibition had been part of the comment rather than the rule itself, and it had been absolute. In the amended version of the rule, advice-giving is prohibited only if the unrepresented person's interests may conflict with the client's interests.
Georgia Rule of Professional Conduct 4.3 adds a paragraph that, according to my cursory research, has not been adopted in any other states:
In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not:
(a) state or imply that the lawyer is disinterested; when the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding;
(b) give advice other than the advice to secure counsel; and
(c) initiate any contact with a potentially adverse party in a matter concerning personal injury or wrongful death or otherwise related to an accident or disaster involving the person to whom the contact is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the contact.
The maximum penalty for a violation of this Rule is disbarment.
Paragraph (c) was probably intended to protect injury victims from overreaching by lawyers on the defense side. However, it does not protect injury victims from non-lawyer adjusters and investigators working for insurance companies and risk management offices of corporations, who are the people most likely to contact them for an adverse party. As a practical matter, it is only attorneys retained by (or for) injury victims and their families who are restrained by this rule. This rule prohibits the victims' lawyers from contacting an adverse party within 30 days to request insurance coverage information, put the putative defendant on notice to preserve evidence, or to take a statement.
Rule 4.3 should be amended to provide a level playing field. Perhaps that can be done by making the 30-day waiting period more even-handed in light of the practical realities. A simpler approach would be to just adopt the 2002 version of the Model Rule.
Continue Reading Questions & comments 1A seat at the table
Saturday morning I was elected to the Executive Committee of the 38,000-member State Bar of Georgia. It will be an interesting transition from outsider iconoclast on the 150-member Board of Governors that meets four times a year to having a place at the table on the 14-member Executive Committee that meets monthly, with serious responsibility for helping set priorities, programs and budgets.
I hope to continue to think "outside the box," examine all issues with a fresh eye, and view spending with the skinflint tendencies that I often apply in my own life and practice.
Regarding "skinflint" tendencies, my assistant is often appalled at the cheap motels I choose to stay in during business trips, but I know I can sleep as well in a $49 room as in a $200 room. And a $89 seat in the back of the plane gets there as soon as a $400 seat in first class. When I spoke at a trial lawyers seminar in New Orleans last month, and mentioned in passing the amount of litigation expense incurred in a case where we got a $2.3 million verdict, a lawyer from California came up to me afterward, amazed at how little I had spent. Hey, it's my money. I hope treat my colleagues' dues money as if it were my money.
Georgia Bar blunts overly broad interpretation of rule on duty to clients' creditors
On Friday morning, the Board of Governors of the State Bar of Georgia unanimously passed my motion to refer to the Disciplinary Rules & Procedure Committee the question of whether Rule 1.15(I)(b) should be amended so as to more clearly define specific interests of creditors of clients as to which an attorney may be required to provide notice, accounting or payment from a client's funds.
The State Bar of Georgia Formal Advisory Opinion Board published the "First Publication of Proposed Formal Advisory Opinion Request No. 05-R6" in the June 2007 issue of the Georgia Bar Journal, interpreting Georgia Rule of Professional Conduct 1.15(I)(b), which provides:
Upon receiving funds or other property in which a client or third person has an interest, a lawyer shall promptly notify the client or third person. Except as stated in this rule or otherwise permitted by law or by agreement with the client, a lawyer shall promptly deliver to the client or third person any funds or other property that the client or third person is entitled to receive and, upon request by the client or third person, shall promptly render a full accounting regarding such property.
I've not been able to find out exactly who asked for the interpretation of this rule or who actually drafted the proposed advisory opinion (pdf page 82 in June 2007 Georgia Bar Journal). However, the opinion used broad terms without explanation. It did not define what constitutes a "prima facie valid" claim and what claims of clients’ creditors are “presumptively enforceable.” By its breadth and vagueness, the opinion would have implicitly supported threats by insurance companies to disbar lawyers who stand up for their clients against abusive demands by the insurance companies for reimbursement. All too often when we try to settle cases, we have to deal with insurance companies that always demand reimbursement of medical benefits for which the insured had paid premiums. Such demands are generally based upon obscure provisions in the fine print on about page 47 of contracts of adhesion of which the insured may not have even received a copy, and which are generally in conflict with Georgia's "full compensation" rule which is codified at O.C.G.A. § 33-24-56.1.
I know from experience how tedious it can be for lawyers who practice in the trenches every day to meet every month or two with a bunch of law professors and deliberate about the meaning of obscure provisions of the Rules of Professional Conduct. While the Formal Advisory Opinion Board made a conscientious effort, in this instance the opinion issued had a disturbing range of negative potential effects. After studying the opinion, I posted an online petition to generate opposition. The petition and the comments of lawyers signing it online raised numerous concerns, among which are:
• creation of conflicts between lawyers and clients,
• intrusion into attorney-client confidentiality & duty to advocate for clients,
• allowing purported creditors with dubious claims to hold settlements hostage,
• lack of clear guidance as to what constitutes "prima facie valid" claim and what claims of clients’ creditors are “presumptively enforceable”
• lack of guidance about conflicts between medical insurance subrogation claims and the “full compensation” rule in Georgia law, and the “made whole” doctrine under 11th Circuit ERISA law.
• lack of guidance about the distinction between a legal interest in a specific fund and the rights of a mere general creditor
• lack of guidance about the right of a client to prefer one creditor over another such as, for example, preferring a child support arrearage over a obscure reimbursement provision in the fine print of a health insurance policy.
From talking with some members of the Formal Advisory Opinion Board, I understand that these concerns were expressed within that board, but some members insisted on publishing the opinion for comment anyway. Well, there certainly were comments.
Rule 1.15(I) doesn’t have to be interpreted this way. The Connecticut Bar Ethics Committee has interpreted this rule to limit its application to: (i) judgments; (ii) statutory or judgment liens; (iii) letters of protection; and (iv) consensual security agreements.
Friday morning at the State Bar annual meeting at Ponte Vedra Beach, Florida, the Board of Governors unanimously passed my motion
to refer to the Disciplinary Rules and Procedures Committee the question of whether Rule of Professional Conduct 1.15(I)(b) should be amended, and to advise the Formal Advisory Opinion Board to further study Proposed Formal Advisory Opinion Request No. 05-R6, to more clearly define the specific interests of creditors of clients as to which an attorney may be required to provide notice, accounting or payment from a client's funds, such as (i) judgments; (ii) statutory or judgment liens; (iii) letters of protection; and (iv) consensual security agreements.Continue Reading Questions & comments 0
The Bar should act to penalize and deter illegal and unethical case solicitation
Yesterday an attractive young lady appeared at my office without an appointment to solicit a relationship with a chiropractic clinic handling motor vehicle personal injury matters. The relationship between some (though certainly not all) chiropractors and some bottom feeding lawyers is notorious. Over the years I have heard numerous accounts of people whose names appear on accident reports getting calls from chiropractors' offices, where they are immediately matched up with lawyers who meet with them at the chiropractor's office. When clients have eventually gotten wise to that racket and have found their way to me, usually their cases are severely damaged, often beyond repair. Often I have had phone calls from chiropractor offices asking to schedule lunches, and I have politely declined.
I caught just a glimpse around the corner of the chiropractor's solicitor -- who could instantly rev up the engines of many a vulnerable middle aged male lawyer -- and instructed my assistant to tell her thanks, but we don't handle chiropractor cases.
While I have no evidence that this particular solicitation was linked to any illegal practices, this small incident reminds me of a widespread and corrosive practice of illegal solicitation of injury victims by bottom feeding lawyers, chiropractors and "runners" who often work together. If the leaders professional organizations do not take the lead to deter such illegal practices, we have only ourselves to blame if the improper practices flourish.
I have great respect and affection for the bar counsel whose job it is to handle attorney discipline cases in Georgia. Unfortunately, they have had too little support from the Bar to aggressively go after lawyers whose conduct is not only unethical but criminal but who are not laid up as easy cases. The result is that our disciplinary process is too often viewed as one that takes the "low hanging fruit," e.g., lawyers who screw up their trust accounts, fail to respond to grievances, or plead guilty to felonies. We have not provided the resources and support to investigate and prosecute other cases that would provide a valuable deterrent to unethical and illegal attorney conduct.
The use of runners to solicit injury victims is clearly contrary to both Rules of Professional Conduct and Georgia criminal law. I keep hearing stories of injury victims being solicited in hospitals within days after a wreck, and of lawyers and their agents ("investigators," "patient service representatives," or whatever they call themselves this week) buzzing around after a catastrophe.
So long as there is no effective deterrent to unethical and illegal solicitation of injury victims, those of us who conscientiously follow the rules are getting a double whammy. First, we have a competitive disadvantage in getting business as so many cases are scooped up by those who systematically defy the rules. Second, jurors who have heard about these solicitation practices may assume that we are all dirty.
We lawyers need to police our own, and the State Bar disciplinary process is the primary way we can do it. If we fail to do so, can we blame members of the public for assuming we are all sleazebags?
Rule of Professional Conduct 7.3, Direct Contact With Prospective Clients, permits restricted written communication with an injury victim after 30 days following an incident, but prohibits in person solicitation completely. It provides as follows:
(a) A lawyer shall not send, or knowingly permit to be sent, on behalf of the lawyer, the lawyer's firm, lawyer's partner, associate, or any other lawyer affiliated with the lawyer or the lawyer's firm, a written communication to a prospective client for the purpose of obtaining professional employment if:
(1) it has been made known to the lawyer that a person does not desire to receive communications from the lawyer;
(2) the communication involves coercion, duress, fraud, overreaching, harassment, intimidation or undue influence;
(3) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication; or
(4) the lawyer knows or reasonably should know that the physical, emotional or mental state of the person is such that the person could not exercise reasonable judgment in employing a lawyer.
(b) Written communications to a prospective client, other than a close friend, relative, former client or one whom the lawyer reasonably believes is a former client, for the purpose of obtaining professional employment shall be plainly marked "Advertisement" on the face of the envelope and on the top of each page of the written communication in type size no smaller than the largest type size used in the body of the letter.
(c) A lawyer shall not compensate or give anything of value to a person or organization to recommend or secure the lawyer's employment by a client, or as a reward for having made a recommendation resulting in the lawyer's employment by a client; except that the lawyer may pay for public communications permitted by Rule 7.1 and except as follows:
(1) A lawyer may pay the usual and reasonable fees or dues charged by a bona fide lawyer referral service operated by an organization authorized by law and qualified to do business in this state; provided, however, such organization has filed with the State Disciplinary Board, at least annually, a report showing its terms, its subscription charges, agreements with counsel, the number of lawyers participating, and the names and addresses of lawyers participating in the service;
(2) A lawyer may pay the usual and reasonable fees or dues charged by a bar-operated non-profit lawyer referral service, including a fee which is calculated as a percentage of the legal fees earned by the lawyer to whom the service has referred a matter, provided such bar-operated non-profit lawyer referral service meets the following criteria:
(i) the lawyer referral service shall be operated in the public interest for the purpose of referring prospective clients to lawyers, pro bono and public service legal programs, and government, consumer or other agencies who can provide the assistance the clients need. Such organization shall file annually with the State Disciplinary Board a report showing its rules and regulations, its subscription charges, agreements with counsel, the number of lawyers participating and the names and addresses of the lawyers participating in the service;
(ii) the sponsoring bar association for the lawyer referral service must be open to all lawyers licensed and eligible to practice in this state who maintain an office within the geographical area served, and who meet reasonable objectively determinable experience requirements established by the bar association;
(iii) The combined fees charged by a lawyer and the lawyer referral service to a client referred by such service shall not exceed the total charges which the client would have paid had no service been involved; and,
(iv) A lawyer who is a member of the qualified lawyer referral service must maintain in force a policy of errors and omissions insurance in an amount no less than $100,000 per occurrence and $300,000 in the aggregate.
(3) A lawyer may pay the usual and reasonable fees to a qualified legal services plan or insurer providing legal services insurance as authorized by law to promote the use of the lawyer's services, the lawyer's partner or associates services so long as the communications of the organization are not false, fraudulent, deceptive or misleading;
(4) A lawyer may pay the usual and reasonable fees charged by a lay public relations or marketing organization provided the activities of such organization on behalf of the lawyer are otherwise in accordance with these Rules.
(5) A lawyer may pay for a law practice in accordance with Rule 1.17: Sale of Law Practice.
(d) A lawyer shall not solicit professional employment as a private practitioner for the lawyer, a partner or associate through direct personal contact or through live telephone contact, with a non-lawyer who has not sought advice regarding employment of a lawyer.
(e) A lawyer shall not accept employment when the lawyer knows or it is obvious that the person who seeks to employ the lawyer does so as a result of conduct by any person or organization prohibited under Rules 7.3(c)(1), 7.3(c)(2) or 7.3(d): Direct Contact with Prospective Clients.
The maximum penalty for a violation of this Rule is disbarment.
Comment
Direct Personal Contact[1] There is a potential for abuse inherent in solicitation through direct personal contact by a lawyer of prospective clients known to need legal services. It subjects the lay person to the private importuning of a trained advocate, in a direct interpersonal encounter. A prospective client often feels overwhelmed by the situation giving rise to the need for legal services, and may have an impaired capacity for reason, judgment and protective self-interest. Furthermore, the lawyer seeking the retainer is faced with a conflict stemming from the lawyer's own interest, which may color the advice and representation offered the vulnerable prospect.
[2] The situation is therefore fraught with the possibility of undue influence, intimidation, and overreaching. The potential for abuse inherent in solicitation of prospective clients through personal contact justifies its prohibition, particularly since the direct written contact permitted under paragraph (b) of this Rule offers an alternative means of communicating necessary information to those who may be in need of legal services. Also included in the prohibited types of personal contact are direct personal contact through an intermediary and live contact by telephone.
Direct Mail Solicitation[3] Subject to the requirements of Rule 7.1: Communications Concerning a Lawyer's Services and paragraphs (b) and (c) of this Rule 7.3: Direct Contact with Prospective Clients, promotional communication by a lawyer through direct written contact is generally permissible. The public's need to receive information concerning their legal rights and the availability of legal services has been consistently recognized as a basis for permitting direct written communication since this type of communication may often be the best and most effective means of informing. So long as this stream of information flows cleanly, it will be permitted to flow freely.
[4] Certain narrowly-drawn restrictions on this type of communication are justified by a substantial state interest in facilitating the public's intelligent selection of counsel, including the restrictions of sub-paragraph (a)(3) & (4) which proscribe direct mailings to persons such as an injured and hospitalized accident victim or the bereaved family of a deceased.
[5] In order to make it clear that the communication is commercial in nature, paragraph (b) requires inclusion of an appropriate affirmative "advertisement" disclaimer. Again, the traditional exception for contact with close friends, relatives and former clients is recognized and permits elimination of the disclaimer in direct written contact with these persons.
[6] This Rule does not prohibit communications authorized by law, such as notice to members of a class in class action litigation.
Paying Others to Recommend a Lawyer
[7] A lawyer is allowed to pay for communications permitted by these Rules, but otherwise is not permitted to pay another person for channeling professional work. This restriction does not prevent an organization or person other than the lawyer from advertising or recommending the lawyer's services. Thus, a legal aid agency, a prepaid legal services plan or prepaid legal insurance organization may pay to advertise legal services provided under its auspices. Likewise, a lawyer may participate in lawyer referral programs and pay the usual fees charged by such programs, provided the programs are in compliance with the registration requirements of sub-paragraph (c)(1) or (c)(2)of this Rule 7.3: Direct Contact with Prospective Clients and the communications and practices of the organization are not deceptive or misleading.
[8] A lawyer may not indirectly engage in promotional activities through a lay public relations or marketing firm if such activities would be prohibited by these Rules if engaged in directly by the lawyer.
In addition, OCGA § 33-24-53 establishes criminal penalties for improper referrals and recommendations to attorneys and health care providers in cases involving motor vehicle accidents; access to accident reports, as follows:
(a) In a claim arising out of a motor vehicle accident, a lawyer shall not compensate or give anything of value to a person or organization to recommend or secure his employment by a client, or as a reward for having made a recommendation resulting in his employment by a client; except that he may pay for public communications permitted by Standard 5 of Bar Rule 4-102 and the usual and reasonable fees or dues charged by a bona fide lawyer referral service operated by an organization authorized by law and qualified to do business in this state; provided, however, such organization has filed with the State Disciplinary Board, at least annually, a report showing its terms, its subscription charges, agreements with counsel, the number of lawyers participating, and the names and addresses of lawyers participating in the service. Upon conviction of an offense provided for by this subsection, the prosecutor shall certify such conviction to the disciplinary board of the State Bar of Georgia for appropriate action. Such action may include a suspension or disbarment.
(b) With respect to a motor vehicle insurance benefit or claim, a health care provider shall not compensate or give anything of value to a person to recommend or secure the provider's service to or employment by a patient or as a reward for having made a recommendation resulting in the provider's service to or employment by a patient, except that the provider may pay the reasonable cost of advertising or written communication as permitted by rules of professional conduct. Upon a conviction of an offense provided for by this subsection, the prosecutor shall certify such conviction to the appropriate boards for appropriate action. Such action may include a suspension or revocation of the health care provider's license.
(c) With respect to a motor vehicle accident, no employee of any law enforcement agency shall allow any person, including an attorney, health care provider, or their agents, to examine or obtain a copy of any accident report or related investigative report when the employee knows or should reasonably know that the request for access to the report is for commercial solicitation purposes. No person shall request any law enforcement agency to permit examination or to furnish a copy of any such report for commercial solicitation purposes. For purposes of this subsection, a request to examine or obtain a copy of a report is for "commercial solicitation purposes" if made at a time when there is no relationship between the person or his principal requesting the report and any party to the accident, and there is no apparent reason for the person to request the report other than for purposes of soliciting a business or commercial relationship. All persons, except law enforcement personnel and persons named in the report, shall be required to submit a separate written request to the law enforcement agency for each report. Such written request shall state the requestor's name, address, and the intended use of the report in sufficient detail that the law enforcement agency may ascertain that the intended use is not for commercial solicitation purposes. The law enforcement agency shall file each written request with the original report. No person shall knowingly make any false statement in any such written request.
(d) A person may not receive compensation, a reward, or anything of value in return for providing names, addresses, telephone numbers, or other identifying information of victims involved in motor vehicle accidents to an attorney or health care provider which results in employment of the attorney or health care provider by the victims for purposes of a motor vehicle insurance claim or suit. Attempts to circumvent this Code section through use of any other person, including, but not limited to, employees, agents, or servants, shall also be prohibited. This provision shall not prohibit an attorney or health care provider from making a referral and receiving compensation as is permitted under applicable professional rules of conduct.
(e) Any person who violates any provision of this Code section shall be guilty of a misdemeanor involving moral turpitude.
A few years ago, a lawyer friend of mine in Cobb County secured cooperation from the State Court Solicitor and law enforcement to set up a sting operation to catch a runner who had solicited him. This resulted in the arrest of that runner and an investigative report on one of the Atlanta TV stations. The person arrested turned out to be a convicted felon from Florida who skipped bond prior to her court date.
I think the State Bar of Georgia ought to actively work with law enforcement agencies to catch not just the runners but the attorneys who are paying them. If we prosecuted and disbarred a few lawyers who illegally use runners, it would be a deterrent to other lawyers who think they have a free pass to use their law licenses in this manner. This is one reason I am taking another shot at election to the State Bar Executive Committee.
We have never used runners or media advertising. Most of our clientele comes from word of mouth, web searches and referrals from other attorneys.
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