The Board of Governors fell a few votes shy of the two-thirds margin required to carry a motion to oppose Amendment One on the grounds that the language on the November ballot is entirely misleading. The vote was 39 in favor of the motion and 26 in opposition.
In other action at the Fall meeting in Panama City Beach on October 16, the BOG approved proposed amendments to the Rules of Professional Conduct; made appointments to the Commission on Continuing Lawyer Competency and the Judicial Qualifications Commission; backed funding of programs for victims of domestic violence and the Georgia Resource Center and a prohibition on transfer fee covenants; and, chose a new auditor.
Amendment One
At issue in the lengthy debate over Amendment One is the following ballot language:
Shall the Constitution of Georgia be amended so as to make Georgia more economically competitive by authorizing legislation to uphold reasonable competitive agreements? () YES () NO
As various editorial writers have noted, this ballot language sounds like mom and apple pie, whereas many view the reality of the amendment as sinister. What this amendment would do is strike free-enterprise language in the state constitution barring contracts that defeat or lessen competition to allow employers to use non-compete provisions in employment contracts that would be invalid under the present state law. Here are some links to various editorials explaining more about the pros and cons of this measure:
http://www.11alive.com/bullpen/story.aspx?storyid=155312&catid=379
http://blogs.ajc.com/jay-bookman-blog/2010/10/01/amendment-one-making-georgia-less-competitive/
http://savannahnow.com/opinion/2010-10-08/amendment-1-no
The debate erupted toward the end of the report of the Advisory Committee on Legislation (ACL), despite an earlier 6-5 vote of the Executive Committee to not bring the issue before the Board of Governors (BOG). State Bar President Lester Tate, who said he would have broken a tie to bring the matter to the BOG had that been possible, explained that among the committee’s concerns had been if a position was to be taken on the measure, what would it really mean and what would be the logistics of so doing at this late date—an op ed article, an advertisement, etc. Furthermore, when the proposal was winding its way through the legislature, various State Bar subcommittees looked at the measure, but none referred it to the ACL.
After Board Member Steve Leibel moved that the BOG weigh in on the issue, there first needed to be a determination whether it was germane under Keller v. State Bar of California, 496 U.S. 1 (1990), in which the Supreme Court held that members of a mandatory bar cannot be forced to pay through their membership dues for any bar activities they deem to be political or ideological. Under Keller, the use of a bar's compulsory dues to fund political and ideological activities violates the First Amendment if the activities are not related to regulating the profession or improving the quality of legal services.
Leibel argued that the legislature’s use of misleading ballot language is germane to the practice of law. Leibel asserted that the ballot language not only is unclear, “it is deceiving in a sense.”
Charles "Buck" Ruffin, the treasurer of the State Bar, who had voted at the earlier Executive Committee meeting to bring the matter before the BOG, asserted that the proposed amendment is germane on the merits because it could negate a State Bar rule that prohibits non-compete agreements in the legal profession. Under this measure, he said, lawyers potentially would not be able to bring their clients with them when leaving a law firm. “It’s dangerous to the legal profession,” Ruffin said of its potential effect on the practice of law.
Patrise Perkins-Hooker, an Executive Committee member who had voted against bringing the matter before the BOG, expressed concerns that the issue is being raised too late, since the amendment is already on the ballot and that opposing the measure has the potential to damage the State Bar’s relationship with the General Assembly.
The BOG determined by a voice vote that the matter was germane to the practice of law and then turned to debate Leibel’s motion. Among the concerns discussed were whether the position to be taken on the amendment was to be limited to the misleading nature of the ballot language or whether to go further and address the merits of the constitutional amendment itself because of its potential effect on lawyers in their legal practices.
Leibel declined to accept as a friendly amendment a proposal offered by President-elect Ken Shigley to add a substantive component to the motion to oppose Amendment One. Shigley’s amendment was defeated by the BOG on a separate voice vote.
The vote on Leibel’s motion to oppose Amendment One on the grounds that the ballot language is misleading then went to a voice vote. Tate initially called the voice vote as having carried. But upon a call for a show of hands, the tally was 39 to 26, just three or four votes, depending on how fractions are factored, of the required two-thirds majority.
A follow-up motion by Leibel for the BOG to adopt a policy to have the ACL vet proposed constitutional amendments and to have the BOG take a stand on the propriety of the amendments passed by a voice vote.
Rules of Professional Conduct
Proposed changes to the Rules of Professional Conduct have been headed toward an October 16 vote under a timetable adopted at the June meeting. The schedule called for requests to alter the language of the proposed rules changes to be submitted in writing before September 21 for inclusion in the Board Book. These suggestions, of which there were several, were treated as amendments to the draft revisions and where appropriate (some were withdrawn) were voted on one-by-one before the entire revision was approved by a voice vote.
The present Rules of Professional Conduct were adopted by the Georgia Supreme Court in 2000. Some were based on model rules of the American Bar Association, while others are unique to Georgia. Not long after Georgia updated the rules, the ABA began re-crafting its model rules. The proposed changes pending before the BOG were based in large part on the ABA updates. The proposal calls for 28 of the 61 Georgia Rules of Professional Conduct to be amended, as well as eight procedural rules for disciplinary matters and one Uniform Superior Court Rule. In most cases, according to the State Bar’s general counsel, the amendments are non-substantive clarifications of the existing rule or additions to the comments. The BOG vote sends the proposals to the Georgia Supreme Court, which has the ultimate authority for adoption.
You can link to an executive summary and full text of the proposals from the State Bar’s website:
http://www.gabar.org/news/proposed_amendments_to_the_georgia_rules_of_professional_conduct/
One concern the BOG addressed by adopting an amendment had to do with Rule 3.3, Candor Toward the Tribunal. The initial draft amended 3.3(a)(3) to require that a lawyer take remedial action when s/he knows that the lawyer, a client, or a witness called by the lawyer has offered material evidence that the lawyer later finds out is false. After considering the comments received about the proposed revision, the Committee voted against revising the Rule and the BOG approved that course of action.
Another revision made by the BOG would eliminate the 30-day moratorium on contacting potentially adverse persons involved in an accident or disaster by deleting subsection (c) from the proposed change to Rule 4.3, Dealing with Unrepresented Person. The current rule prohibits contact with a potentially adverse party for 30 days after an accident or disaster. The proposed change would have allowed contact during the 30 days under certain circumstances. By eliminating subsection (c), the proposed rule is being brought in line with the ABA version of the rule.
The BOG adopted what was termed a “housekeeping amendment” to Rule 4-106, Conviction of a Crime; Suspension and Disbarment. The revision amends the procedure for cases involving criminal convictions. The housekeeping amendment was to make it clear that under some circumstances a review panel review is not automatic, but instead must be requested.
Another revision would keep in place the current version of Rule 4-204.3, Interim Suspension. The proposed change would have allowed the Investigative Panel to recommend interim suspension of a respondent who does not respond to a Notice of Investigation even where the underlying conduct does not carry a penalty of suspension or disbarment. The BOG voted to leave the current rule as it is.
Finally, the BOG added a comment to Rule 1.0, Terminology to state:
The purpose of this rule is to permit a lawyer to use developing technologies that maintain an objective record of a communication that does not rely upon the memory of the lawyer or any other person. See O.C.G.A. §10-12-2(8).
With the aforementioned changes, the BOG voted to send the proposed rules revisions to the Georgia Supreme Court for its consideration.
Appointments
The BOG appointed Joe Whitley and R. Javoyne Hicks White to the Commission on Continuing Lawyer Competency.
The BOG re-appointed Robert Ingram and appointed Lester Tate to the Judicial Qualifications Commission.
Legislation
The BOG voted to continue to support proposals to “modernize” the rules of evidence; to endorse legislation to appropriate $2.5 million for civil legal services in the 2012 fiscal year for low income victims of domestic violence; to endorse funding of $800,000 for the Georgia Appellate Practice and Resource Center, Inc.; and to support a measure that would prohibit so-called “transfer fee covenants.” According to Patrise Perkins-Hooker, these covenants generate fees that run with the title to the property and often are unknown to the purchaser. There are 16 states that have prohibited these covenants, while two have restricted them substantially.
Other Action
The BOG chose Cherry, Bekaert & Holland as its auditor for the next five years. This selection was made after a request for proposals drew 22 responses and three firms were recommended to the State Bar’s treasurer, who met with each of the three finalists before recommending CB&H.
The BOG heard from Past President Linda Klein, who is now the Speaker of the House of Delegates for the American Bar Association. The ABA is scheduled to meet in Atlanta February 9 through 14, 2011, at the Mariott Marquis and the State Bar will be sponsoring a reception on February 13 from 5 p.m. to 6:30.
YLD President Michael Geoffroy told the BOG about outreach to law students to have them become student members of the State Bar, efforts by Just Georgia to revise the Juvenile Code, and that October is pro bono month.
Board Member Gordon Zeese reported that, predictably, Casemaker officials were unhappy that the BOG voted to switch to Fastcase. The Executive Committee considered Casemaker’s concerns and declined to recommend any change from the earlier decision.
Finally, President Lester Tate asked for careful scrutiny of a draft of a report by The Washington Economics Group, Inc. on The Economic Impacts on the Georgia Economy of Delays in Georgia’s State Courts Due to Recent Declines in Funding for the Judicial System. This report is about 40 pages and is in the Board Book (if you want to look at it, let me know and I’ll find a way to get it to you). Members of the Executive Committee will be meeting in the future with the authors and any concerns about the accuracy of their data or findings can be raised with them then.
