Back to BASICS (and other issues) at the 2011 Midyear Board of Governors Meeting

At its midyear meeting, the Board of Governors of the State Bar of Georgia voted against abolishing the BASICS Committee, a move tantamount to a promise of future financial support for the program whose aim is to reduce prison recidivism. Other highlights of the January 15, 2011, meeting in Nashville, Tenn. included the nominations of officers for the State Bar for 2011-12; the creation of a new Professional Liability Section; and, the presentation of the Marshall-Tuttle Award for pro bono service through the Military Legal Assistance Program.

BASICS

Last June, the Board of Governors agreed to appropriate $140,000 to the BASICS program, ostensibly as a stop-gap measure to keep it alive while it secured independent sources of funding. However, fundraising for BASICS--which stands for Bar Association Support to Improve Correctional Services—has proved difficult in the past year.

As a result, State Bar President Lester Tate determined that the Board of Governors should vote on whether the standing bar committee that oversees the program should be abolished. The reasoning was that if the board voted to continue the committee, then funding for the program should be included in the upcoming budget for the State Bar.

“It is a stark policy choice that you have to make,” Tate told the board, equating abolition of the committee to setting the BASICS program adrift in a storm in a small life raft.

BASICS is a 30-hour course for soon-to-be released prison inmates that provides instruction, guidance and employability counseling to help them transition back into society and thus reduce recidivism. According to the State Bar's website: "BASICS Mission is to aid and steer inmates in the direction of self-rehabilitation. During the classes, we assist with developing career, educational and/or work plans, preparing resumes, setting goals, and teaching interviewing techniques. Upon release, we assist with job research, applying for colleges or vocational schools, completing or changing personal action plans, as well as developing financial plans. This decreases the likelihood that these individuals will return to jail."

As Seth Kirschenbaum, the chair of the State Bar's BASICS Committee, explained in June, the 35-year-old program has been funded in the recent past by the Georgia Bar Foundation. However, he said those funds were not available last year because low interest rates have caused IOLTA (Interest on Lawyers Trust Accounts) to dry up. Thus, the request in June for State Bar funding.

While fundraisers have been held since that time, and efforts are being made to secure grants, there have been some impediments, Tate and Kirschenbaum explained at the midyear meeting. One problem is the program is not a 501 (c) (3) non-profit organization, and thus is not attractive to those who prefer to make donations or grants to tax-exempt organizations. In addition, there is a perception that “rich lawyers” should pay for a program that is a creature of the State Bar.

The program trains approximately 500 inmates a year. While precise statistics on its effect on recidivism rates were not available at the board meeting, Kirschenbaum said such information is being gathered to quantify anecdotal claims about its success.

Nomination of Officers

The Board received nominations of officers for the State Bar for 2011-12. President-elect will be the Robin Frazer Clark, who currently serves as Secretary. This nomination puts her in line to become only the second female president in the State Bar’s history. (Linda Klein, who currently chairs the American Bar Association’s House of Delegates, was the first, serving from 1997-98.)

Buck Ruffin was nominated to serve an additional term as Treasurer.

Two candidates were nominated for Secretary, creating a contested election between Patrise Perkins-Hooker of Atlanta and Derek White of Pooler.

In other election action, the Board received the nominations of Paula Frederick and Donna Barwick to succeed themselves in two-year terms to the ABA Board of Delegates.

The State Bar will be sending all Bar members their ballots in the coming weeks.

Marshall-Tuttle Award

Buck Ruffin presented the Marshall-Tuttle Award to Drew Early for his pro bono work with the Military Legal Assistance Program.

The award is named in honor and memory of Corporal Evan Andrew Marshall, a soldier from Athens, Ga., who was killed in action in Iraq in 2008 and United States Circuit Court of Appeals Judge Elbert Parr Tuttle who handled many pro bono cases before his appointment to the bench.

The Marshall family attended the board meeting and was recognized for the sacrifice of their son and brother. Also recognized in the presentation of awards were Past President Jeffrey Bramlett and Jay Elmore for their work in establishing the program.

Other Board Actions

The Board adopted a policy to have its advisory committee on legislation review proposed amendments to the state constitution and decide whether the State Bar should take a stance on such measures.

The Board voted to petition the Supreme Court to allow law students to become student State Bar members for no cost and receive bar publications electronically. Student members have been required to pay $25 to offset the cost of publications being printed and mailed to them.

The Board created a new Professional Liability Section, which will focus on non-medical fields, including architects, attorneys, CPAs, land surveyors and professional engineers.

In other action, a by-law change was approved to allow the Executive Committee to meet by telephone or electronic conference, in lieu of in-person. Specially called Executive Committee meetings could occur upon the affirmative vote of two-thirds of the Executive Committee membership.

Legislative Issues

The Board voted to support legislation regarding indigent defense in Georgia that would move the Georgia Public Defender Standards Council from the executive branch back to the judicial branch. Another key legislative point supported by the bar to improve governance and functionality of the indigent defense system includes having a director hired by and reporting to the council, who could be removed for cause by a super majority of the council.

Henry Walker, chair of the Indigent Defense Committee, also reported that the ability to obtain a dedicated funding source for indigent defense through an amendment to the state constitution would be improved if the legislature can become comfortable with the governance of the program.

The Board did not consider a repeal of the rule against perpetuities because the matter had been previously tabled by the Advisory Committee on Legislation (ACL). Similarly, adoption of a uniform Estate Tax Apportionment Act, which had been on the board’s agenda, was not reached because it was not approved by the ACL.

The Board did vote in favor of amendments to the Georgia Code regarding utility liens; funding requests by the Judicial Qualifications Commission; and, adoption of a statewide jury source list that would eliminate forced balancing of the jury list.

As for correcting the problems created by HB 1055, which after last year’s legislative session raised the per page cost of preparation of an appellate record to $10 from $1.50, the Board approved a legislative proposal to return the fee to $1.50. At the same time, the Board approved a resolution to urge the Supreme Court and Court of Appeals to retain the dual system that allows attorneys to prepare their own record if they prefer. In addition, President Lester Tate will appoint a committee to work with the Court of Appeals to determine what, if any, kinks there have been in having attorneys prepare the record and what can be done to ameliorate such problems.

The Board also learned that the Special Council on Tax Reform and Fairness for Georgians did NOT recommend a tax on legal services among the various personal and household services for which it did recommend taxation.

Informational Reports

The YLD will hold a fundraiser to benefit Georgia Legal Services on March 5, 2011, at the Palomar Hotel in Midtown Atlanta.

The Board discussed confusion over a request from the Georgia Supreme Court which asked the State Bar for briefing regarding an Unauthorized Practice of Law Committee Advisory Opinion. The opinion at issue stated that a nonlawyer who answers for a garnishee, other than him or her self, in a legal proceeding pending with a court of record is engaged in the unauthorized practice of law. The confusion was over whether the State Bar should present a brief in support of that opinion or whether the court wanted to know more generally what the Bar really thinks about the issue. The Chamber of Commerce has taken a position against the advisory opinion. Executive Committee members expressed concerns about banks needing legal advice on what funds are subject to attachment before freezing bank accounts and about preserving the ability of lawyers to protect their livelihood rather than opening the floodgates to other areas of unauthorized law practice.

Past President Linda Klein, who now chairs the ABA’s House of Delegates, invited all to the ABA’s Midyear Meeting in Atlanta February 9-15, for which there is no registration fee. There will even be a free CLE on Value Billing, held from 1 p.m. to 4 p.m. on February 11.

Stone Mountain Circuit

Your representatives to the Board of Governors are: Katie Wood (Post 1, exp. ‘12); Johnny W. Mason, Jr. (Post 2, exp. ‘11); J. Antonio DelCampo (post 3, exp. ‘12); John M. Hyatt (Post 4, exp. ‘11); Gwen Keyes Fleming (Post 5, exp. ‘12); Claudia Saari (Post 6, exp. ‘11); Anne Workman (Post 7, exp. ‘12); R. Javoyne Hicks White (Post 8, exp. ‘11); Edward E. Carriere, Jr. (Post 9, exp. ‘12); and, Tara Adyanthaya (Post 10, exp. ’11). Please let us know if you have any thoughts or questions about what the State Bar is doing or suggestions for what it should undertake.

Similarly, if you are interested in serving on the Board of Governors, you can run for election. Each representative serves a two-year term. The even numbered posts are up for election this year and Johnny Mason has announced that he is not seeking re-election. (Even when incumbents are seeking re-election, anyone in the Stone Mountain Circuit can run.) To do so, you must file a petition to place your name in nomination for a particular post. For more information contact Brinda Lovvorn (404-527-8780) or Judy Hill (404-526-8625) at the State Bar.

August Board of Governors Meeting Highlights: Note Burning, Shift to Fastcase, Legislative Issues and ABA and Local Awards

Thank goodness the sprinkler system didn't go off when State Bar President Lester Tate set aflame the Bar Center note that Executive Director Cliff Brashier held above a stainless steel bowl full of water.
The note-burning ceremony during the Board of Governors August 12 meeting marked the retirement of the approximately $4.2 million debt on the State Bar's headquarters building at 104 Marietta Street, which had been approved by the board in June.
Leading up to this moment, the board viewed a video featuring highlights of the dedication of the building in 1997 by U.S. Supreme Court Justice Anthony Kennedy as well a s interviews with past presents and Georgia Supreme Court justices who were instrumental in the decision to purchase the former Federal Reserve Bank building and transform it into the headquarters of our State Bar. Among them, past President Jimmy Franklin who expressed concern that his tenure would be known as the "era of chainsaw Franklin" because his presidency in 2002 was marked by controversy over the removal of trees to expand the building's parking garage.
Tate noted that the purchase of the building for $26 million in 1995 has been a sound investment. The amount of money put into the purchase and restoration amounts to about $600 per member, but was carried out with an assessment of only $200 per member due to grants, such as from the Woodruff Foundation. The building and the land on which it sits are now worth $40 million, Tate said.
Other highlights of the board's August meeting included decisions to switch from Casemaker to Fastcase, a number of legislative issues and the presentation of awards. (Note that the State Bar has put photos of the note burning and other highlights of the meeting on line at: http://www.flickr.com/photos/gabar/sets/72157624613841903/with/4898452186/.)



Shift to Fastcase
The board voted to allow the State Bar's contract with Casemaker to expire and to replace it with Fastcase, a research software that is described as easier to use, more versatile, and less expensive.
In debate over this decision, board members expressed concerns ove r the exclusivity provision in the Casemaker contract, which prevents the State Bar from allowing the two services to overlap during the transition from one service to another. In addition, some members of the bar are simply adverse to change, as exhibited in a crude email that a lawyer sent in response to changes made late last year to the log-on procedure for the members only section of the State Bar's website. "The old logon was just fine. why are we doing this [crude word in all caps describing a body part]," the lawyer wrote.
Nonetheless, the Member Benefits Committee and others who tested Fastcase asserted that the fear of transition is ill founded because their experiences testing the new system caused them to decide it is a better product than Casemaker and that the change will be a good one.
State Bar Secretary Robin Clark, who serves as liaison to the Member Services Committee, stated that she had never felt Casemaker produced trusty research results, so she had retained Westlaw for use in her practice. But her research results with Fastcase gave her the same level of confidence that she had with Westlaw. Clark said she became comfortable with Fastcase in about an hour. To those, who in debate suggested that a five-month transition period would be desirable, Clark asserted it will take about five hours to transition, if that long.
Fastcase President Philip Rosenthal said Georgia is the fifth state bar to switch to Fastcase. He said Oregon and West Virginia also have switched over from Casemaker; Arkansas shifted from another provider; and, New Jersey had previously provided Lexis.
Rosenthal said those state bars' switchboards did not light up with calls complaining about the change.
State Bar staffers will be available to help walk members through the new system if they have problems, and will provide training sessions, as has been done with Casemaker.
A side-by-side financial comparison of Casemaker vs. Fastcase shows that the savings to the State Bar will be considerable. The rounded annual cost of Casemaker for 2011 would have been $214,000, while Fastcase is $168,000. Thus, the cost per member is $5.10 for Casemaker and $4 for Fastcase. In addition, Fastcase provides a searchable database of the State Bar's disciplinary rules and cases for no additional charge, whereas Casemaker would have charged $5,800 to create this database, plus a $3,000 annual fee.
The Member Benefits Committee concluded that the savings with Fastcase are approximately $52,000 per year.



Legislative Issues
The board took action on two fronts to address possible legislative action to impose a sales tax on legal services.
The first step was a more general action--a vote to remove the clause "During the time when the legislature is in session" from Standing Board Policy 100, Section 1.03 (c), which authorizes circumstances under which bar leaders can comment on pending or proposed legislation on an emergency basis. With this change, the ability to respond quickly will be available even when the legislature is not is session.
Second, the board voted to oppose a tax on legal services and authorized the State Bar's lobbyists to press forward on that issue, if necessary. This move was taken because the state legislature has created a Special Council for Tax Reform and Fairness for Georgians, which could possibly consider such a tax. The board's actions allow the State Bar to move quickly if the issue of taxing legal services come up.
The board also voted to authorize the State Bar's president to express the board's concerns over consideration being given by some members of the Fulton County Commission to redirecting over $6 million in federal stimulus funds designated for improving courthouse security to other projects, which include a community center, a jail program to combat recidivism and bus stop improvements.
The suggestion for taking a stand on the use of courthouse security funds came from state Rep. Wendell Willard, R-Sandy Springs, who is chairman of the House Judiciary Committee.

Willard spoke briefly to the board after receiving the Judicial Section's "Spirit of Justice Award," which was presented by Senior Superior Court Judge Anne Workman, for his service to lawyers and the judiciary. "We've got to secure that courthouse once and for all," Willard said.

More Awards
The board's summer meeting came on the heels of an American Bar Association meeting in San Francisco in which many of our State Bar's programs were recognized.
The Transition Into Law Practice Program won the E. Smythe Gambrell Professionalism Award, which recognizes projects contributing to the understanding of professionalism among lawyers. The Gambrell Awards were established in 1991 and are named for E. Smythe Gambrell, ABA and American Bar Foundation president from 1955
to 1956. Gambrell founded the Legal Aid Society in Atlanta, where he practiced law from 1922 until his death in 1986.
After TILPP director Doug Ashworth presented the $3,500 check the program received in winning the award to President Tate, David Gambrell, who was president of the State Bar in 1968, said it was "very touching to me" that the Georgia program would receive the award established in his father's memory.
The TILPP program mentors beginning lawyers in their transition from student to professional. Established in 2005, the TILPP pr ogram has become a model for other programs nationally.
In addition, the ABA named Georgia's Younger Lawyer's Division as the number one YLD in the nation for its year led by past Presdent Amy Tuckett Howell.
The board also recognized Eunice Mixon of Tift County, who has been a lay person member of the Investigative Panel since 1997, with an award in her name that will be given annually by the State Bar. This is an award for distinguished service to the bar by a lay person.
An additional new award was created to recognize attorneys who provide outstanding service to veterans and military service members on a pro bono or reduced fee basis. The board also adopted guidelines for attorneys providing legal assistance in this area.



Other Action
Proposed amendments to the Rules of Professional Conduct were very briefly discussed. State Bar General Counsel Paula Frederick noted that no comments have been made on the proposal since the annual meeting in June. Note that any final wording changes must be submitted in writing to the State Bar before Tuesday September 21, 2010, so that they can be included in the agenda book. The Board of Governors is scheduled to vote on the proposed amendments at its fall meeting on October 16, 2010.
A judicial poll in which members of the State Bar can evaluate candidates for the Georgia Supreme Court and Court of Appeals has been sent out and must be returned by September 7, 2010.
Justice Harold D. Melton of the Georgia Supreme Court has written to the State Bar's president to seek comments on proposed amendments to the Code of Judicial Conduct concerning recusal rules for judges. These proposed rules are being adopted in response to concerns raised by state lawmakers and others concerning the current recusal rules for judges in relation to campaign contributions. Justice Melton is seeking comment on the proposed rules within 60 days of his July 16, 2010, letter.
Let me or other members of the board know if you have any concerns or questions or need additional information.
(Photos Courtesy of the State Bar of Georgia.)

Board of Governors Adopts Budget; Includes BASICS Funding For One Year

The Board of Governors of the State Bar of Georgia adopted a budget for 2010-2011 after a contentious debate over whether to include a $140,000 appropriation for the BASICS program. Other highlights of the Saturday June 19 meeting included a decision to retire the debt on the State Bar's headquarters building in downtown Atlanta, the election of executive committee members, and the setting of a schedule for consideration of amendments to the Rules of Professional Conduct.

BASICS Triggers Budget Debate

BASICS--which stands for Bar Association Support to Improve Correctional Services--is a30-hour course of instruction for soon-to-be released prison inmates that provides instruction, guidance and employability counseling to help them transition back into society and thus reduce recidivism.

According to the State Bar's website: "BASICS Mission is to aid and steer inmates in the direction of self-rehabilitation. During the classes, we assist with developing career, educational and/or work plans, preparing resumes, setting goals, and teaching interviewing techniques. Upon release, we assist with job research, applying for colleges or vocational schools, completing or changing personal action plans, as well as developing financial plans. This decreases the likelihood that these individuals will return to jail."

Seth Kirschenbaum, the chair of the State Bar's BASICS Committee, explained that the 35-year-old program has been funded in the past by the Georgia Bar Foundation. However, he said those funds are not available this year due to the economic crisis. If the State Bar did not provide funding this year, Kirschenbaum said it would be the death knell of the BASICS program.

Kirschenbaum's remarks came in response to concerns raised by R. Chris Phelps, the chair of the State Bar's Finance Committee. Phelps said that while he is not opposed to the BASICS program, he was concerned that it was not within the scope of Keller v. State Bar of California, 496 U.S. 1 (1990). The fact that there is sufficient money in the bar's coffers to fund the program is not a sufficient reason to do so, Phelps added.

Paula Frederick, the State Bar's general counsel, explained that in Keller, 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.

Charles "Buck" Ruffin, the treasurer of the State Bar, said the Bar's executive committee discussed giving BASICS funding for one-year to give it time to become more entrepreneurial in its fund raising so that it can be self sufficient.

J. Alvin Leaphart opined that the state Department of Corrections should pay for the program and also expressed Keller concerns.

Ultimately, after a bit of parliamentary quibbling, the Board voted to adopt a budget that includes funding for BASICS for one year, but no more. This action occurred first by voice vote, but after a request for a show of hands, the final tally was 92 in favor of funding and 22 opposed.

Probably of greater interest to most State Bar members is this piece of news about the budget: It does NOT contain a dues increase.

Other Action

In other action, the Board voted to retire the debt on the State Bar headquarters building. The original amount of the loan was for $7.2 million at an interest rate of 5.2 percent. The payoff amount was $4,495,000, which included a penalty of about $300,000 for early termination. Given that the weighted average return on current investments is only about 1.2 percent, early retirement of a 5 percent loan was determined to be financially prudent.

Two members of the Executive Committee, Phyllis Holmen and Harvey Weitz, were re-elected to their positions. Patrise Perkins-Hooker was elected to the Executive Committee post previously held by Charles Ruffin.

The Board set the following schedule for consideration of proposed amendments to the Rules of Professional Conduct:

1) Suggested wording changes must be made in writing and received by the State Bar on or before Tuesday July 20, 2010, for inclusion in the Board's agenda book.

2) Brief discussion of the proposed amendments and any wording changes will occur during the Board's Summer Meeting on Thursday August 12, 2010.

3) Final suggested wording changes must be in writing and must be received by the State Bar on or before Tuesday September 21, 2010, for inclusion in the Board's agenda book.

4) Action will be taken on Saturday, October 16, 2010, at which time no other wording changes will be in order.

The text of the proposed amendments and an executive summary can be found on the State Bar's website.

http://www.gabar.org/news/proposed_amendments_to_the_georgia_rules_of_professional_conduct/