Transformation of  lives of clients and their families is part of my calling in law practice. While money is the quantitative measure of success, whenever possible I also try to guide outcomes in a way that will redirect the trajectory of life for clients and their families. A recent case is a good example.

Recently we handled a case for a 30-year-old single mom from a less than privileged background. She had struggled to put herself through a Certified Nursing Assistant (CNA) program. When injured, she was working as a CNA and living paycheck-to-paycheck with her daughter in a modest apartment. Then,  in a catastrophic crash she lost a leg at the knee. After three years of litigation, our team recovered roughly $6.5 million for her.

Many lawyers would just cut a check for the net proceeds after deduction of fees, expenses and liens, and say, “good luck.”  Too often we hear stories of people who come into a large amount of money and in a couple of years are broke. That is not our approach.

When people come into an unaccustomed amount of money, friends, relatives and new lovers often appear on the scene with “great ideas” for use of the money. Without careful management, the funds that were intended to take care of a victim for life soon evaporate.

This young woman’s settlement is illustrative of what we try to do when possible. The bulk of her money was placed in a trust to protect her from  creditors and predators.

A portion of the funds were used to buy this “forever home” which will be held in her trust. It is a lovely house in a safe neighborhood, built in 1937 but completely updated. Renovations include an open floor plan, handicapped accessibility, and new plumbing, electric, HVAC, roof, siding, windows and floors. It is a good place to raise her child.

She will also use a portion of her recovery to return to school with a goal of becoming a Registered Nurse (R.N.). I expect that with a great heart and her life experience with catastrophic injury, she will be a blessing in the lives of many of her future patients.

Her increased financial capacity will also, I expect, improve the life prospects of her daughter.

I hope that she finds love again. If so, the trust will be a buffer against the temptation to let a future love to mismanage and erode her funds.

We have had many cases over the years in which lives were transformed for the better. Examples include:

• A  bright 13-year-old girl had a case for the death of her father. She was about to enter eighth grade at an inner city school. With her mother, she chose a structured settlement that would fund her education first at an elite prep school, and then through college and graduate school. After completing her education she would also get a lump sum sufficient for a down payment on her own home. That set a new trajectory at a critical point in her life.
• When the oldest child in a family with several children was killed in a tractor trailer crash, we recovered for the parents the funds to pay for college of the younger children.
• When another single mom who worked all day at a keyboard had an injury that made that impracticable, we got enough money to fund the business she had always dreamed of starting.

We don’t always get this satisfying an outcome. Some financially unsophisticated clients resist efforts to help in ways other than purely monetary. Some of them run through their money and are broke again within a few years. If that happens, at least we warned them in writing about that potential and tried to counsel them.

There are other clients who clearly have enough experience and sophistication that I don’t worry about their ability to handle money.  Examples include:

• A small business owner who has demonstrated ability to manage his business and finances. He used his injury settlement to expand his going business.
• A couple who were already working with a financial adviser. They used their confidential settlement to advance their retirement by a couple of years and become more active in charitable work in their community.
• An 18-year-old who took the initiative before settlement of his case to set up a meeting with a wealth management officer at a financial institution. He authorized the broker to send me copies of monthly statements until he finished college, then began his  own career in the financial services industry.

This is not just a job. It is a calling to transform lives.

Ken Shigley is a 2019 recipient of the “Tradition of Excellence” Award from the State Bar of Georgia General Practice & Trial Section.

Mr. Shigley is the first Georgia lawyer to earn three national board certifications in his practice area from the National Board of Trial Advocacy – in Civil Trial Law, Civil Practice Law and Truck Accident Law. He is a board member of the Academy of Truck Accident Attorneys, and former chair of the American Association for Justice Motor Vehicle Collision, Highway & Premises Liability Section, which includes the Trucking Litigation Group. 

He is lead author of Georgia Law of Torts: Trial Preparation and Practice, now in its tenth annual edition with Thomson Reuters West. His law practice is focused on catastrophic injury and wrongful death including those arising from commercial trucking accidents and those involving brain, neck, back, spinal cord, amputation and burn injuries. 

In 2011-12, Mr. Shigley was president of the State  Bar of Georgia, which includes all the lawyers and judges in Georgia.  He also is a former chair of the Institute for Legal Education in Georgia (board member 2008-2019, chair 2012-13),  State Bar of Georgia Tort & Insurance Practice Section (1994-95), and the Georgia Insurance Law Institute (1994). 

A former prosecutor and former insurance defense lawyer, Mr. Shigley is a graduate of Furman University and Emory University Law School. He is a widower,  father of two adult children, and an elder in his church.

Effective January 2, 2020, he moved his existing law practice to the Atlanta law firm of Johnson & Ward. He may be contacted at 404-253-7862. 

The ICJE is a resource consortium of the Georgia Judicial Branch, the State Bar of Georgia, and the ABA accredited law schools of the State (Emory, Georgia State, Mercer, Atlanta’s John Marshall Law School, and the University of Georgia). It bears primary responsibility for basic training and continuing education of elected officials, court support personnel and volunteer agents of the State’s judicial branch. Conferences and seminars signify the products traditionally identified with the ICJE by its constituents. During a typical program year, more than 50,000 attendee contact hours of training will be designed and delivered, involving more than 3000 program participants.

The Board of Trustees of the ICJE is comprised of judges from all classes of courts, the director of the Administrative Office of the Courts, law school deans, two practicing lawyers, one Superior Court Clerk, and the past chair of the Institute for Continuing Legal Education in Georgia. Ken Shigley served as president of the State Bar of Georgia in 2011-12 and is chair of the board of trustees of the Institute for Continuing Legal Education in Georgia for 2012-13.

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Ken Shigley is immediate past president of the State Bar of Georgia, and double board certified in Civil Trial Advocacy and Civil Pretrial Advocacy by the National Board of Legal Specialty Certification. His Atlanta-based civil trial practice is focused on representation of plaintiffs in cases of castastrophic personal injury and wrongful death.

In the decade since I began blogging here, in either the first or second lawyer blog in Georgia, lawyers participating in blogs, social media, online forums, etc., have sailed somewhat uncharted seas in relation to the Rules of Professional Conduct.

The bottom line, however, has always been that the rules that govern professional conduct offline are equally applicable online.

The privacy and informality of typing on a keyboard at night, perhaps under the influence of heated emotions, and sometimes even adult beverages, might seduce one into unguarded remarks about a an ungrateful, obnoxious idiot with unrealistic demands and expectations who was a former client.

If so, stop. Do not pass “go.” Avoid going directly to lawyer jail.

Delete. Do not press “send.”

Do not breach any client confidence even in response to the most obnoxious online misrepresentations by a former client.

Since I am currently a member of the State Bar of Georgia Disciplinary Board Review Panel, I will refrain from expressing my own opinion about how a lawyer might respond, in compliance with the Rules of Professional Conduct, to false and misleading statements published online by a disgruntled former client.

But I believe it can be done in a way that is ethical, dignified and professional, without violating any of the Rules of Professional Conduct.

———–

Ken Shigley is immediate past president of the State Bar of Georgia. His Atlanta-based law practice is focused on representation of plaintiffs in cases of personal injury and wrongful death, especially those arising from commercial truck and bus accidents.

Villanueva vs. First American Title Insurance arose out of a highly unusual real estate closing. A senior attorney hired an associate to work on closings but had a non-attorney employee with signature power on the attorney trust account. The younger attorney was designated as a partner, though that was apparently a bit of a fiction, and handled an $800,000 closing. The mortgage company wired funds to the law firm’s trust account. The non-attorney absconded with the money, the older lawyer died, and the younger lawyer was left holding the bag. The mortgage company assigned its malpractice claim to a title insurance company, which sued the younger lawyer, along with the estate of the deceased lawyer and the non-lawyer who disappeared with the money.

The younger lawyer, who may have been duped into the situation, was apparently the only reasonably viable defendant. However, I understand he is now on active military duty in Africa so the case against him may be stayed under the Servicemembers’ Civil Relief Act.

The question arose whether a legal malpractice action could be assigned under Georgia law. I participated in an amicus briefs on behalf of the State Bar, contending that textual analysis of a statute in question and public policy arguments adopted in a majority of states favored holding legal malpractice claims non-assignable.

Our Supreme Court disagreed, holding that “that legal malpractice claims are not per se unassignable.”

With no “bright line” ruling as to what is or is not assignable, this decision leaves much uncertainty. Clearly claims against real estate closing attorneys for mishandling of those transactions may be assigned to title insurance companies.  To what extent, if any, this ruling extends beyond the purely transactional practice context is uncertain.  It may take years for that to shake out.

There are a few “take home points” in this case:

– Every lawyer must take full responsibility for funds in the trust account, and should avoid allowing any non-lawyer signature power over the trust account. More lawyers may have to severely tighten supervision of non-attorney staff members who routinely handle bookkeeping and accounting duties.

– Legal malpractice insurance rates will rise significantly, especially for real estate closing attorneys who are already under severe economic pressure due to changes in the mortgage marketplace. Insurers seldom miss an opportunity to raise premiums and this will present such an opportunity.

– A junior lawyer is not relieved of responsibility just because the senior partner set up a system that is ethically deficient.  In some employment situations, that may create a Catch-22 situation for young lawyers just out of school who have crushing tuition loan indebtedness.

– If you are a young lawyer caught in such a web, you might consider a military career.

I am already hearing speculation about possible legislation in 2014 to bar or limit assignment of claims for professional malpractice, which may encompass legal, medical and other professions. Such legislation could address the public policy concerns which have been persuasive in a majority of states that have addressed the issue.

But that is a subject for another day.

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Ken Shigley is immediate past president of the State Bar of Georgia. His Atlanta-based law practice is focused on serious personal injury and wrongful death cases, mostly arising in the commercial transportation context, e.g., tractor trailers, tour buses, etc.

Do advocates of more “loser pays” rules offer a solution in search of a problem?

Are people unaware of the “loser pays” sanctions that are already part of Georgia law?

As discussed in previous posts, Georgia already has five statutory “loser pays” rules, four of which passed in tort reform legislation during the time I have been practicing law, and one we have had since the Civil War. Georgia needs a sixth “loser pays” about as much as it needs a sixth law school at a time when graduates of the existing law schools have a really hard time finding jobs.

Georgia’s five “loser pays” rules are:

1. Offer of judgment / offer of settlement. O.C.G.A. § 9-11-68, passed as part of the 2005 tort reform legislation, provides for an award of attorney fees and expenses against a party that refuses to accept a settlement  offer and at trial does not improve upon the rejected offer by at least 25%.
2. Post-verdict jury award due to frivolous claim or defense. O.C.G.A. § 9-11-68(e), also part of the 2005 tort reform legislation, provides a remedy to recover “reasonable and necessary attorney’s fees and expenses of litigation.” Upon motion of the prevailing party when a verdict or judgment is rendered, in a bifurcated proceeding the finder of fact may determine whether the opposing party had presented a frivolous claim or defense, and then award damages against the party presenting the frivolous claim or defense.
3. Motion for fees and expenses where claim or defense was without substantial justification. O.C.G.A. § 9-15-14, enacted in 1986 tort reform legislation, provides for a motion for award of fees and expenses against a party that had asserted a claim or defense “that lacked substantial justification or that the action, or any part thereof, was interposed for delay or  harassment, or if it finds that an attorney or party unnecessarily expanded the proceeding by other improper conduct, including, but not limited to, abuses of discovery procedures.”
4. Abusive litigation tort claim.  O.C.G.A. §§ 51-7-80 et seq., enacted in 1989 tort reform legislation, created a statutory tort of abusive litigation giving rise to liability against “any person who takes an active part in the initiation, continuation, or procurement of civil proceedings against another . . . if such person acts [w]ith malice; and [w]ithout substantial justification.” The claim for abusive litigation is initiated by a notice, with statutory proof of delivery, giving the other party an opportunity to voluntarily drop the allegedly abusive claim,defense, motion or position.
5. Code of 1863 – claim for fees and expenses due to bad faith, stubborn litigiousness, unneccessary trouble and expense. OCGA § 9-6-11, which has been in Georgia law since its enactment with the Code of 1863, provides for an award of attorney fees and expenses of litigation against a party who has acted in bad faith, has been stubbornly litigious, or has caused unnecessary trouble and expense.

I’ve always heard that if it ain’t broke, don’t fix it. Five “loser pays” rules is enough. Short of automatically taking the home and first-born child of anyone who loses in court, what more can anyone ask in the way of “loser pays” rules?

Ken Shigley is immediate past president of the State Bar of Georgia and current chair of the board of the Institute for Continuing Legal Education in Georgia. Lead author of Georgia Law of Torts: Trial Preparation & Practice (West, 2010-12), he has an AV Preeminent rating in Martindale-Hubbell Law Directory and Bar Register of Preeminent Lawyers, double board certification in Civil Trial Advocacy and Civil Pretrial Advocacy from the National Board of Legal Specialty Certification (formerly National Board of Trial Advocacy). In addition, he is listed in Super Lawyers (Atlanta Magazine), Legal Elite (Georgia Trend) and Who’s Who in Law (Atlanta Business Chronicle).  In the American Association Justice, he is secretary of the Motor Vehicle, Highway & Premises Liability Section and a board member of the Trucking Litigation Group.

I do not expect any favoritism from anyone as cases must be decided on their merits.  But if a friend or family member has a catastrophic injury or wrongful death case, would it be smarter to hire a lawyer based on a sleazy TV ad or to hire one who has recognized credentials and is known to decision makers?

Whether you choose me or someone else, by all means choose a serious lawyer for any serious case. Understand that the lawyers who spend millions on TV ads operate settlement mills, never take cases to trial, and insurance companies know they will generally settle for 10% of fair case value.

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5 . Social Media.

Social media can be “self surveillance” that hands a loaded gun to the other side in litigation. Discuss with a potential client whether she might consider taking down any Facebook, MySpace, YouTube or other social media sites prior to engaging you for the case. Alternatively, the client should be warned to expect the other side to find and use anything that is online, so maximum caution should be exercised. For example, Facebook users should be extremely careful about selecting friend requests only from people who are close friends offline, disable “public search,” remove all activities and interests from the profile, set the maximum possible privacy settings, take down or “untag” any photos other than a single head shot, and avoid any discussion of the case or injury in any social media posting and emails (except confidential attorney-client communication).

At the same time, immediately do a Google search on the opposing parties and download and print color hard copies of whatever may be found. However, do not use subterfuge to “friend” anyone in order to gain access to information, as that would violate Rule of Professional Conduct 8.4(c) which provides that a lawyer shall “not engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” See, e.g., Professional Guidance Committee of the Philadelphia Bar Association [Opinion 2009-02].

The Stored Communications Act, 18 U.S.C. §§ 2701-11, includes criminal and civil sanctions for unauthorized access to stored communications, and has been applied in cases involving access to social media.  See, e.g., Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J.)(employer access to employee’s social media tortious invasion of privacy and violations of the SCA); Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 880 (9th Cir. 2002)( unauthorized access to his private online bulletin postings under false pretenses).

Whether or not social media postings are removed or placed behind privacy screens, they will likely still reside in the corporation’s computers and may be discoverable. There is a growing body of law on discoverability of social media postings in relation to the Stored Communications Act, 18 U.S.C.A. § 2702(a)(1), (2). See, e.g., Thomas I. Barnett and Kenneth R. Shear, 1 Internet Law and Practice § 10:12, The social media networks: Issues in communications disclosure and preservation (2011); Evan E. North, Facebook Isn’t Your Space Anymore: Discovery of Social Networking Websites, 58 U. Kan. L. Rev. 1279-1309 (2010); McMillen v. Hummingbird Speedway, Inc., 2010 WL 4403285 (Pa. C.P. 2010)(postings discoverable despite privacy settings; Ledbetter v. Wal-Mart Stores, Inc., 2009 WL 1067018 (D. Colo. 2009)(approved subpoena seeking plaintiff’s social media postings);  Romano v. Steelcase Inc., 30 Misc. 3d 426, 907 N.Y.S.2d 650 (Sup 2010)(social media postings discoverable). Contra, Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965 (C.D. Cal. 2010)(held that under Stored Communications Act, social media communications could not be subpoenaed for use in civil lawsuits).

2. Invest in the interview.

An attorney’s commitment to a serious contingent fee case is a major investment of time and resources. Do your due diligence as you would with any major investment. Set aside enough time to get acquainted with the potential client, develop trust, and probe for information about the event, damages, personal history (education, work, medical, claims, criminal history, etc.) While the lawyer’s office is more convenient in many ways, consider meeting at the client’s home; it is an information rich environment.   While a screening interview can be done by phone, allow 3 or 4 hours for the initial face to face interview. Ask the prospective client to bring along, insofar as possible, the accident report, photos of vehicles, medical and auto insurance policies, any claim correspondence and medical bills and records.

Then conduct an inductive, empathic interview to gather broad and deep information. If you don’t find the case meritorious or don’t find the prospective client likeable or believable, neither will the jury.  Better to cut your losses after a long initial interview than to invest hundreds of hours and tens of thousands of dollars in a losing case.

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It was a Sunday in December nearly 40 years ago at my grandparents’ rural home at Mentone, Ala., a bucolic spot best known for summer camps, midway between Chattanooga and Gadsden on the hundred-mile long plateau that is Lookout Mountain. Within a mile radius were the simple houses, church, school, woods, fields and country graveyards which helped define “home” for several generations of a family steeped in a morality so strict that, for some of us, it proved more aspirational than operational.

At the “children’s table,” off the kitchen with my cousins, I could faintly hear the conversation of our elders at the “grownup table” in the dining room. My father said something about “Ken” and “law school,” as he told of the path I hoped to pursue after college. The response to his announcement was strangely muted. He then explained how, similar to ministry or teaching, law could be a calling too. My grandfather, the family patriarch who served a lifetime as a minister and builder all over Alabama, and who I remember as the image of rectitude, both in the pulpit on Sundays and in a pressed work shirt and securely tucked-in tie on construction sites, made some quiet expression of resigned acceptance.

Ours was a family of preachers, teachers and builders, upright, hard-working and devout country people. Not only had there never been a lawyer in the family in living memory, but so far as I knew then, no one in the extended family had ever considered a legal career.1 We lived in Mentone until I was 12, across a pasture from the grandparents who helped mold me. Many happy hours were spent roaming the woods and catching tadpoles in a cattle pond, and I learned to shoot a rifle before I learned to ride a bike. When it came time to start school, my parents took me to work with them, 10 miles away to Menlo, Ga. Menlo was an idyllic Mayberry where my father was a school principal who wielded an effective “board of education” and my mother was a teacher and librarian who strongly encouraged memorization of inspirational poems. By the time I entered high school, we migrated to the “big city” of Douglasville, Ga.—then a country town of about 5,000 on the route of an unfinished I-20—where at night on a rural hilltop restless teenagers could see the lights of Atlanta twinkling in the distance. Visits home to the mountain grew less and less frequent.

When the remains of the feast were cleared away, and the womenfolk were clattering dishes and talking in the kitchen, Uncle Leonard took me aside. He was the only one of his generation who seldom left the mountain for more than a few days, except to pick up a piece of German shrapnel that he would carry in his body all his life. Strongly self-reliant, he lived within sight of his birthplace, building and remodeling mountain homes for city folks, while his siblings pursued degrees and careers far from their roots. In some ways he was the best of the bunch.

With a look of profound concern on his weathered face, Uncle Leonard jabbed a work-scarred finger into my chest and demanded, “Kenneth, don’t you know that it’s impossible for a lawyer to go to heaven?” In retrospect, I realize his challenge was based upon a combination of tough love and his flawed interpretation of a few verses in the King James Version of the Bible.2 In his dealings down at the county seat, including service as a part-time constable and a competitive Republican bid for sheriff when the Democratic nomination was still tantamount to election, he apparently had seen no reason to doubt his opinion.

With the cockiness of youth, I laughed off my uncle’s warning. What could this good man who I had looked up to all my life, but who left school at 16 and earned his living through hard work with a hammer and saw, possibly know about the moral and spiritual health of the profession to which I aspired? Nonetheless, I silently vowed to prove him wrong. In the four decades since, I have often recalled his words, especially on those occasions when I strayed across some line, either hazy or clear, that I should not have crossed. Moral compromises are by no means unique to the legal profession, but deeply flawed human nature being what it is, none of us are immune from temptation.

Uncle Leonard’s admonition, while delivered in the most literal, fundamentalist terms, may allegorically reveal concerns about the soul of our profession. But it also contains a hidden kernel of hope when we reflect upon our lives and motivations. Even before the economic slump of recent years, many lawyers were disenchanted with their work, unhappy with their workaholic lifestyle, and questioning the wisdom of their career choices. As Justice Sandra Day O’Connor observed in a speech a few years ago:

[L]awyers, as a group, [are] a profoundly unhappy lot. . . . Attorneys are more than three times as likely as non-lawyers to suffer from depression, and they are significantly more apt to develop a drug dependence, to get divorced, or to contemplate suicide. Lawyers suffer from stress-related diseases, such as ulcers, coronary artery disease, and hypertension, at rates well above average.3

The stress lawyers experience may, in part, come from pressure to live two separate lives as a human being and a lawyer, and to prevent their overlap.4 In Dante’s Inferno, just inside the gates of hell were the morally indifferent, those “passionless people who lived without praise or blame, and thus never truly lived.”5 Dante’s “passionless people” may remind us of the compartmentalization that is all too tempting in the legal profession. 6 Contemporary law practice can induce some lawyers to hide behind a veneer of cynicism or sarcasm, evading the complications of humanity in order to live in the comfortable zone between profit maximization and the avoidance of sanctions.7 This overly rationalized zone has been described as an “ethical winter,” or a “hibernation of the soul,” which can result in cynicism and even self-contempt.8

A novelist wrote that “[a] profession is like a great snake that wraps itself around you. Once you are wrapped up, you are in a slow fight for the rest of your life, and the lightness of youth leaves you.” Of a lawyer he wrote, “I saw how greatly he suffered the requirement of being clever. It separated him from his soul, and it didn’t get him anything other than a living.”9 I recently witnessed this while dealing with a cold, humorless junior shareholder at a distant office of a huge national law firm who clearly conveyed the impression that he was a heartless automaton, devoid of humanity or compassion. Lawyers seeking to retain their souls and some remnant of the “lightness of youth” after decades of practice must seek not only to avoid punishment by following the disciplinary rules of conduct, but also to escape such cold indifference by reuniting our sense of humanity with our profession and, ultimately, recognizing the law as a passionate vocation.10

For too many of us, the law has become a mere instrument for attaining economic or social objectives; we have forgotten that “law is rooted in something bigger than the people who hand it down, that law is rooted in history and in the moral order of the universe.”11 I have been guilty of that too. In more prosperous days, high incomes often masked concerns about this. When investment banks and the most prestigious law firms could offer top law school graduates starting salaries in the nosebleed range, and their rising tide lifted our smaller boats, we could more easily rationalize that at least we were well paid. However, as the latest recession led to layoffs and downsizing in great firms and the decimation of once thriving practice areas, middle class individuals and small businesses, unable to pay customary attorney fees, turned to selfhelp resources. As a result, most of us experienced falling revenue, an ebbing tide found many of us struggling to keep up appearances of our customary success.

Rediscovering passion for service in the legal profession is an essential element in enduring hard times and a necessary step in recognizing the potential for personal fulfillment that a legal career offers. Those of us who bear the scars of long legal careers, however, know all too well how easy it is to lose sight of the intrinsic values of our work when we are laboring in the muddy trenches of the law for long hours day by day, besieged with phone calls and e-mails, stressed out about deadlines and seemingly insoluble conflicts, struggling to meet billing requirements, cover overhead, make payroll, feed all the mouths we are expected to feed, and reserve some personal space in our lives.

Viewed with the right perspective, the law can offer some of the best opportunities to help people who are hurting and to temper and resolve human conflict.12 If we view our professional role as a high calling, as a place where our deep gladness meets the world’s deep hunger, then we may find in the act of helping people solve their problems a value that transcends our fluctuating material rewards.13 Blooming where we are planted, we may find that we are called to serve as instruments of justice and love—sometimes love as tough as Uncle Leonard’s—in whatever workday roles we hold. Prosecutors and defense lawyers are called not only to serve the positions of state and defendant, but to help assure that wrongdoers—and only wrongdoers—are punished, and that punishment justly fits the offense and the offender. Judges are called to firmly, fairly and impartially administer justice in their communities in a manner that respects the humanity of all who come before them. Personal injury lawyers can enforce responsibility and accountability of those who carelessly cause harm, while helping clients regain the dignity and independence that has been diminished by injury or the untimely death of a family member. Insurance defense lawyers may protect corporate resources from baseless claims, while encouraging their clients to fairly resolve cases that have merit. Estate planners assist and encourage their clients’ stewardship and love for their families and communities. Corporate lawyers may see themselves as called to structure entities and transactions that help create jobs and economic growth. Intellectual property lawyers safeguard the fruit of innovation that is essential to progress and prosperity. Real estate lawyers may be called to help families, businesses and communities secure a physical environment that promotes growth and productivity. Small town lawyers practicing “front door law”—whatever comes in the front door—may have the best opportunities to positively impact the lives of both their clients and their communities.14 The potential examples are as varied as the legal profession itself.

Compared to the infinite scale and complexity of the universe, our lives seem trivial and limited. But in this snippet of time and space we occupy, we are called to interpret the moral order of creation into pragmatic, common sense legal solutions for the messy problems presented to us, and to use our skills to temper the chaos to which human nature gives rise.15 Being able to recognize this calling and our peace-making and problem-solving abilities may allow us to regain, and live with, a sense of passion and purpose.

Through it all, we should be thankful for the opportunity to work and serve in the law, rekindling a more mature and probably less self-important version of whatever first inspired us to pursue legal careers. Laying aside elitist pretensions of professional arrogance, we can pursue more conscientious and effective relationships with clients and colleagues. 16 In the words of the prophet Micah, we should seek to “do justice, love kindness and walk humbly with our God.”17 In so doing, we should prudently seek practical and effective ways in which we can no longer conform to the flawed patterns of this world, and can instead be transformed by the renewal of our minds.18

Perhaps more in lean years than in fat years, we in the legal profession have the opportunity to serve justice, to renew our commitment to the Constitution’s promise of justice for all and to strengthen the best traditions of the justice system as the essential infrastructure of liberty and prosperity. In our brief time, we must do our part to restore the traditional leadership role of the legal profession as a pillar of our communities, our state and country, and in so doing, help to reverse national decline and usher in what Lincoln called “a new birth of freedom.”19

When I return to Mentone and walk among the graves of strong forbearers who followed their own callings—my great-grandfather the builder and farmer who helped found a church and a school, my grandfather the minister and builder, my father the educator, and Uncle Leonard who issued that stark warning—I pray that before the end I might prove worthy of them and of the calling I follow in the law.

This helps to level the playing field for solo and small firm lawyers with tight budgets.

Ken Shigley is also president-elect of the State Bar of Georgia.  He is also author of Georgia Law of Torts: Trial Preparation & Practice and a Certified Civil Trial Advocate of the National Board of Trial Advocacy. He has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers. He practices law at the Atlanta law firm of Chambers, Aholt & Rickard, and has broad experience in catastrophic personal injury, spinal cord injury, wrongful death, products liability,  brain injury and burn injury cases.  This post is subject to our ethical disclaimer.

Now the Florida Judicial Ethics Advisory Committee has ruled, under the authority of the Florida Supreme Court, that judges and lawyers cannot be “friends” on Facebook and other social media, even if they are friends offline.

So a couple of days ago, over a lunch with a judge who is a true friend, we decided to “defriend” each other on Facebook. Then we had coffee and dessert, and parted as friends.

Ken Shigley, an Atlanta attorney, launched the first law firm web site in Georgia in 1996, and the second lawyer blog in the state. He is a national board member of the Interstate Trucking Litigation Group. His practice focuses on representing people who are catastrophically injured, and families of those killed, primarily in commercial trucking and bus accidents. Mr. Shigley also has extensive experience representing parties in  products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,  has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale).  Currently he is treasurer, and unopposed as a candidate for president-elect, of the 41,000 member State Bar of Georgia.

 For criteria to be considered in selecting an attorney, see The Smart Consumer’s Guide to Hiring a Great Lawyer.

Over the past three decades, no development in the legal services industry has been more widely observed and less carefully scrutinized than the emergence of firms I call “settlement mills”—high-volume personal injury law practices that aggressively advertise and mass produce the resolution of claims, typically with little client interaction and without initiating lawsuits, much less taking claims to trial. Settlement mills process  tens of thousands of claims each year. Their ads are fixtures on late-night television and big-city billboards.

These settlement mills differ from conventional law practices because they settle everything, and do so without the negotiator having the benefit of “(1) first-hand information about verdicts obtained in comparable cases, (2) detailed information about the intricacies of the particular claim, and (3) the proven willingness and ability to take the claim to court.”

Settling all cases  — including the catastrophic cases —  cheaply in relation to the value the cases would have at trial, the settlement mills lack the ability to credibly move cases to jury trial, but offer insurance companies quick, cheap settlements.

Attorneys at settlement mills handle an extraordinarily high number of cases, necessarily treating them in “cookie cutter” fashion. Consequently, they spend “little time engaged in legal research, investigating claims, and preparing pleadings.” The article reports that “one Georgia settlement mill attorney reports that she personally settled approximately 600 to 700 claims in a thirteen-month span.” 

Client screening and even settlement negotiations are delegated to non-lawyers. Cases may go from intake to settlement without any attorney contact.

Many of these settlement mills seldom file suit ior investigate cases, and almost never take a case to trial or refer to a firm that is capable of doing so.

Negotiations with insurance adjusters may take no more than ten minutes, and then clients are pressured to take whatever it offered. (Thus the slogan “one call that’s all” may be literally true — one call to the insurance company is all you get.)

Such settlement mills prey upon uneducated and unsophisticated people.

Such firms rely upon heavy TV advertising. Since TV advertising lawyers are stigmatized among lawyers and judges, the attorneys in those firms no longer feel bound by a need to maintain good reputations in the profession. Thus, there is no need to do good work for clients in order to maintain a strong reputation among other attorneys. If a lawyer relies solely upon heavy advertising to produce clients, reputation and relationships do not matter. All he needs is a heavy advertising budget and a steady flow of unsophisticated, unsuspecting clients to sell down the river.

They negotiate claims on the basis of formulas that have little to do with the value of cases if they were taken to trial.

The article concludes that insurance companies like settlement mills because they settle quickly and cheaply, even in catastrophic cases, without litigation.

 Such law firms are able to operate in this manner only because federal courts bar tough regulation of legal advertising, and their operations operate “under the radar” because they almost never file their cases in courts. They are the kudzu of the legal system, operating in a manner generally contrary to the interest of their clients and the public, and just as hard as kudzu to limit.

Ken Shigley, an Atlanta attorney, is a national board member of the Interstate Trucking Litigation Group. His practice focuses on representing people who are catastrophically injured, and families of those killed, primarily in commercial trucking and bus accidents. Mr. Shigley also has extensive experience representing parties in  products liability, catastrophic personal injury, wrongful death, brain injury, spinal cord injury and burn injury cases. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy,  has been listed as a “Super Lawyer” (Atlanta Magazine), among the “Legal Elite” (Georgia Trend Magazine), and in the Bar Register of Preeminent Lawyers (Martindale).  Currently he is treasurer, and unopposed as a candidate for president-elect, of the 41,000 member State Bar of Georgia.

 For criteria to be considered in selecting an attorney, see The Smart Consumer’s Guide to Hiring a Great Lawyer.

They got me involved a couple of weeks after the crash when one of the sons found me on the Internet and invited me to meet with the family.  We put our rapid response strategy to work and are now on the brink of settling the case for all available insurance policy limits. 

Because I agreed to reduce my contingent fee to 20% if we settled within the first 60 days after delivery of the demand package to the defendant and insurance company, it turns out to be a win-win situation for everyone, with quick closure on the most favorable possible terms for the family.

In our conversation today, they told me about being deluged with calls from “grief counselors” and “patient counselors” asking if they had a lawyer yet —  while dad was in still in the hospital trauma unit. These “counselors” were obviously sleazy “runners” seeking to solicit the case for legal vultures.

When they got home a few days later, even before mom’s funeral, they had a package in the mail from a law firm out of state, soliciting the case.

Georgia Rule of Professional Conduct 7.3, regarding Direct Contact with Prospective Clients, provides in part:

(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: . . .

(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  . . .  [the exceptions do not include use of “runners” to solicit injury and death cases.]

(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.

One of the weaknesses of the organized bar has been the lack of effective means of enforcing these rules against improper solicitation.  If no one files a grievance against the offenders, nothing can be done. A lot of this behavior is simply never reported and therefore never addressed.

I will take the information from these clients and prepare grievances against any attorneys we can identify who participated in improper solicitation.  If they are in other states and made such solicitations in Georgia, we will urge reciprocal discipline in their home states.

If you are solicited for a personal injury or wrongful death case by a phone call or other direct contact  from an “investigator,” “grief counselor” or “patient counselor,” there is a very high probability that it is an unethical and illegal solicitation on behalf of a lawyer or law firm who does not mind breaking the ethical rules. 

Do you really want to entrust your case to someone like that? 

If you are solicited about your injury or death case, you may consider doing the following:

• Immediately call the General Counsel of the State Bar and report the improper solicitation. The phone number of the General Counsel of the State Bar of Georgia is 404-527-8720.
• Offer to assist in investigation of this misconduct and to file a formal grievance against any lawyer who can be proven to be participating in improper solicitation.
• If you ask, and if the provable facts support it, I will assist without charge in drafting a formal grievance against any lawyer who solicits you in violation of the Rules, even if you do not hire me for your injury case. (I cannot intrude on the confidential Bar disciplinary process, but  I can assist in drafting your grievance.)
• If you need a lawyer for a personal injury or wrongful death case, make your selection on the basis of your own research about professional experience and qualifications, and recommendations by knowledgeable people whom you know and trust, rather than slick advertising or someone soliciting you directly.

When I arrived a little early at ICU, I found another lawyer at the nurses’ station. Apparently he ran a little late and I ran a little early, so me bumped into each other. He had noticed that when the guy shifted his hospital gown, there were no bruises to correlate with the types of injuries he was describing. The nurse told us that this man had no traumatic injuries, but does have colon cancer.

The lawyer who was at the nurse’s station said he had heard of someone with a similar story trying to get a $5,000 advance from another lawyer, who refused the request.  Apparently the guy was trying to shake down lawyers for “advances” on his great case.

Later I posted a warning on a couple of lawyer listservs and received responses from several other attorneys who had been hit with the same scam.  One admitted he had signed up the case before he figured out it was a scam.  None acknowledged having made any advances, which would be highly improper.

One of my more paranoid friends has suggested that this could be a trap set by the various “anti-lawyer” groups attempting to film the meetings clandestinely and then use the video for a TV documentary or commercials to argue for tort reform. I am more inclined to believe he was just a scam artist playing his own little independent game.

I must say that 99.9% of all potential clients with whom I have met in person over the past 30 years have been pretty sincere folks who honestly believed they had a case. While I decline most proposed cases because I see less legal or economic merit than they perceive, most are pretty decent folks. Often when I don’t accept a case, I try to make an appropriate referral or give some free advice.

However, when a lawyer finds himself or herself in an interview with a potential client and “smells a rat,” one should:

1. Politely but firmly decline any request for an advance of funds against a future recovery. See Rule of Professional Conduct 1.8 (e), which provides: “A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, except that: (1) a lawyer may advance court costs and expenses of litigation, the repayment of which may be contingent on the outcome of the matter; or
   (2) a lawyer representing a client unable to pay court costs and expenses of litigation may pay those costs and expenses on behalf of the client.”
2. Be prepared to give a polite, respectful but firm lecture on your ethical duties as an attorney. See, e.g., Rules of Professional Conduct 1.16 (Declining or Terminating Representation) , Rule 3.1 (Meritorious Claims and Contentions), and Rule 4.1 (Truthfulness in Statements to Others).   In the unlikely event that you’re on “Sixty Minutes,” make it a speech that would make both your mother and your legal ethics professor proud.

Remember the example of South Dakota Republican Senator Larry Presler who, when being secretly taped in the Abscam sting investigation, responded, “Wait a minute, what you are suggesting may be illegal,” and reported the incident to the FBI. 

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia.  Recently elected Secretary of the State Bar of Georgia, Ken Shigley has been designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, and former chair of both the Southeastern Motor Carrier Liability Institute and the Georgia Insurance Law Institute. He focuses on cases arising from truck wrecks and accidents (tractor trailers truck wrecks, bus wrecks, semi truck wrecks,18 wheeler truck wrecks, big rig truck wrecks, log truck wrecks, dump truck wrecks.

1. Be humble.
2. Be intellectually honest and strive for objectivity. Be open minded to evidence / facts that may challenge or run counter to your initial views.
3. Look for anomalies.

The full text of Professor Ellington’s remarks appears below.

I MAY BE WRONG

Remarks at The University of Georgia

Phi Beta Kappa Induction Ceremony

April 29, 2008

by

C. Ronald Ellington

If you pass through the doors at the rear of the Chapel, turn right, and follow the sidewalk a few hundred yards, you will come to the main law school building, Hirsh Hall, which was constructed in the 1930’s. Behind the large double wooden doors of Hirsch Hall lies a magnificent Rotunda, with a beautiful spiral staircase. Adorning the walls of the Rotunda, are oil portraits of the three men who started the law school, Joseph Henry Lumpkin, Thomas Reade Rootes Cobb, and William Hope Hull.

These men were lawyers and among the best educated and most accomplished men of their times. They came from families of influence. They were foremost political, civil and church leaders.

Alexis de Tocqueville might have been referring to them when he wrote in Democracy in America that:

“In America there are no nobles or literary men, and the people are apt to mistrust the wealthy; lawyers consequently form the highest political class and the most cultivated circle of society. . . If I were asked where I place the American Aristocracy, I should reply without hesitation, that it is not composed of the rich, who are united by no common tie, but that it occupies the judicial bench and bar.”

For nearly 40 years, I have walked through that Rotunda and looked at those portraits. I want to share the lesson this has taught me, but first I want to tell you more about Lumpkin and Cobb. They are central to my lesson.

Joseph Henry Lumpkin grew up in Lexington, Oglethorpe County, 20 miles from Athens. He entered the University (then Franklin College) in 1816. It was a fledging school, but Lumpkin was studious and excelled in his studies. After two years, he transferred to Princeton where he graduated in 1819 second in his class. (Story has it that Lumpkin would have been the first honor graduate had he attended Princeton for a period longer than 18 months.)

Lumpkin returned to Athens, read law for a year, and was admitted to practice. He built a successful practice, was elected to the legislature, and in 1845 was named as a member of Georgia’s first Supreme Court. He became the Court’s first Chief Justice and served for twenty-two years until his death in 1867. Highly intelligent, extremely hard working and industrious, he wrote more than one-third of the nearly 4,000 opinions in the first 35 volumes of the Georgia Reports.

In 1859, Lumpkin, Cobb and Hull received a charter from the legislature to open a law school as part of a reorganization of the University. The Lumpkin Law School, as it was called, became the second school in the University, joining the Franklin College.

Thomas R.R. Cobb, 24 years younger, was a member of a wealthy planter family. By all accounts, Cobb was brilliant. He entered Franklin College at age 14 and graduated first in his class. He read law, married Lumpkin’s daughter and built a successful practice in Athens. He served as the Reporter for the Supreme Court, organizing, indexing and publishing its opinions. Cobb was prodigiously productive. He was the principle drafter of Georgia’s first Code of Laws, a codification of legal principals extracted from the corpus juris of thousands of published common law decisions covering the entire gamut of both civil and criminal law.

Justice Lumpkin and Cobb were law reformers, championing ideas for the improvement of the law and legal institutions. The Code project was particularly democratic in spirit. It was to condense and simplify the law so as to place it within the reach and comprehension of the citizens of the state generally. Lumpkin argued in sponsoring the project that, “It is right that every man should be enabled to read and understand the law – for himself – and for this purpose it should be divested of all technicality and intricacy, as far as possible.”

And yet, these men of learning, probity and accomplishment, lawyer-educators and public-spirited reformers were Wrong – about the most important issue of their time: slavery and secession.

In dozens of opinions, Justice Lumpkin justified African slavery as moral and just.

Cobb published a book on the Law of Slavery, arguing that it as good for both master and slave. Cobb championed and voted for the ordinance of secession to take Georgia out of the Union. He was the principal drafter of the Confederate Constitution. At age 39, Cobb, a Brigadier General, was killed in the Battle of  Fredericksburg.

When I see the portraits of Lumpkin and Cobb now, I always think, “How could they have been so wrong?” And, that leads me inevitably to the question, “What May I Be That Wrong About?”

Being wrong neither began nor ended with Lumpkin and Cobb, of course. At present our country is in the fifth year of a war in Iraq – a war initiated to eliminate Saddam Hussein’s Weapons of Mass Destruction, a war in which we would be greeted as liberators by the populace. How could our intelligence community and our political leaders have been so wrong?

Being smart, energetic, hardworking and earnest are no guarantee against being wrong. Lumpkin and Cobb were all those things.

There is no sure-fire way to avoid being wrong, but there are, I believe, some good habits that may help.

First, Be Humble. If history teaches anything, it is that you may be wrong. Always bear this simple and sobering truth in mind. Arrogance, hubris and self-interest distort clear vision and good judgment.

Second, Be Intellectually Honest and Strive for Objectivity. We have to make decisions in life, usually not as momentous as starting a war, but important in their own right. And, we cannot avoid acting out of the fear that we may be wrong. So what can we do?

Be open-minded to evidence/facts that may challenge or run counter to your initial views. This is very hard to do. In a recent book titled, “True Enough: Learning to Live in a Post-Fact Society,” Farhad Manjoo writes about research findings by Stanford psychologists who showed two groups of students (selected because they reported favoring or opposing capital punishment) contradictory studies about the deterrent effect of capital punishment. Rather than causing either group to doubt or tone down its original view, students on each side accepted the evidence that conformed to their original views while rejecting the contrary evidence. Moreover, Manjoo reports on other studies showing we have a tendency to seek out information that reinforces our initial beliefs while resisting information that does not mesh with our preconceived ideas. Avoiding mistakes requires open-mindedness and the capacity to confront contrary evidence honestly.

Third, Look out for Anomalies. What a person sees depends both upon what she looks at and also upon what her previous experience has taught her to see. In his seminal work, The Structure of Scientific Revolutions, Thomas Kuhn describes how anomalies that normal science cannot explain can lead to paradigmatic shifts and a gestalt switch in the scientist’s view of the world.

Kuhn writes that since antiquity people saw one or another heavy bodies swinging back and forth on a string or chain until the body finally came to rest. To the Aristotelians, the swinging body was simply falling with difficulty. Constrained by the chain, it could achieve rest at its low point only after a tortuous motion and considerable time.

Galileo, on the other hand, looked at the swinging body, and saw a pendulum. How did Galileo see a pendulum with its regular and repeated motion where others for so long saw only constrained fall?  Perhaps it was just an accident of individual genius, but as Kuhn shows, scientific revolutions often stem from the recognition of anomaly, i.e. that reality somehow does not conform to the present paradigm-based expectations. As he wrote, “Novelty ordinarily emerges only for the man who, knowing with precision what he should expect, is able to recognize that something has gone wrong.” (Kuhn at 65)

The recognition of an anomaly is a powerful force in the world of ideas as well as the world of science. Lumpkin and Cobb managed to close their eyes to the anomaly that they accepted a slave as a person with a soul capable of Christian salvation, while simultaneously justifying the legal order that treated the slave as property. For many others, this anomaly trigged a crisis and raised doubts about the received belief system.

And so, as you join the company of educated men and women and go about decision making of all sorts, I hope you will remember the lesson that you may be wrong and to strive to avoid that by being humble, being intellectually honest and open-minded and recognizing anomalies. Use the tools of heart and mind that have gained here. Your study of the liberal arts has positioned you to avoid, or at least to minimize, the making of mistakes. The Nineteenth-Century Eton schoolmaster, William Johnson Cory, lastingly articulated the purpose of a liberal arts education this way:

At school you are engaged not so much in acquiring knowledge as in making mental efforts under criticism. A certain amount of knowledge you can indeed with average faculties acquire so as to retain; nor need you regret the hours you spent on much that is forgotten, for the shadow of lost knowledge at least protects you from many illusions. But you go to a great school not so much for knowledge as for arts and habits; for the habit of attention, for the art of expression, for the art of assuming at a moment’s notice a new intellectual position, for the art of entering quickly into another person’s thoughts, for the habit of submitting to censure and refutation, for the art of indicating assent or dissent in graduated terms, for the habit of regarding minute points of accuracy . . . for taste, for  discrimination, for mental courage, and for mental soberness. Above all, for self-knowledge.

I congratulate you on your scholastic achievement and for the arts and habits you have acquired. If you permit them to do so, they will stand you in good stead.

The more I deal with human beings of every possible racial, religious and ethnic background, the more convinced I am that stereotyping is fundamentally invalid.  Victoria Pynchon on the Settle It Now Negotiation Blog that focuses on mediation and other alternative dispute resolution has a good post on point. 

She starts by quoting a song that I sang every Sunday  as a small child on the front row of a little country church.  Even as a preschooler in rural Alabama in the 1950s, I found it puzzling, in light of the prevalent attitude of most adults in that time and place: “Red and yellow black and white they are precious in his sight Jesus loves the little children of the world.”

She goes on to quote at length from a book by Ken Cloke, Conflict Revolution Mediating Evil, War, Injustice and Terrorism:

Prejudice is complex and operates on many levels. It can be found not only in insults and judgments, caricatures and stereotypes, but refusals to listen and communicate, stories of demonization and victimization, inability to experience empathy with others, and infinitesimal denials of humanity. It is reflected in personal selfishness and hostile relationships, bullying and aggressive behaviors, and ego compensations based on poor self-esteem. It is expressed through contempt, disregard, and domination, as well as through low status, inequitable pay, and autocratic power.

Prejudice commonly operates by stereotyping. People form stereotypes, in my experience, in eight easy steps:

1. Pick a characteristic
2. Blow it out of proportion
3. Collapse the person into the characteristic
4. Ignore individual differences and variations
5. Disregard subtleties and complexities
6. Overlook commonalities
7. Match it to your own worst fears
8. Make it cruel

If these steps routinely produce prejudice, it is possible to undo them, for example, by making people more complex than their stereotype permits, or distinguishing unique individuals within a group, or recognizing commonalities between people. It helps, in doing so, to acknowledge that everyone is equal, unique, and interesting; that everyone forms prejudices; that everyone can learn to overcome them through awareness, empathy, and communication; and that everyone can become more skillful in communicating across stereotypes and lines of separation created by fear.

Racial attitudes have advanced light years in my lifetime. While we have not reached “the promised land” in terms of eliminating prejudice, there is no comparison to the open, often vicious, legally sanctioned racism that was part of the world in which I grew up.  I remember in 1967, when my high school was desegregated (eight years before Tiger Woods was born, and when Barack Obama was six years old), telling a friend that in a hundred years race would be irrelevant.  We are 41 years into that century. I don’t know if my idealistic, adolescent prediction will hit the mark, but we have certainly come a long way.

What do you think?

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, former chair of the Southeastern Motor Carrier Liability Institute and Georgia Insurance Law Institute. He particularly focuses on cases arising from truck  and bus accidents.  His practice is based largely upon referrals from other attorneys.

The seemingly random cruelty of fate is tangible at such times. When I was in my teens, a popular TV show included each week the “flying fickle finger of fate award.” It was presented as comedy then, but too often it is part of tragedy.  It seems that nearly everyone I represent has been presented this unwelcome “award.”

Sometimes well-meaning people try to say that it was “the Lord’s will” or “the Lord took her” when a person was killed or catastrophically injured.  As a long-time adult Sunday School teacher, I think that is warped theology. It’s wrong to blame God when people break rules and cause tragedies.  Hurricanes and tsunamis are acts of God.  Truck wrecks are acts of men and of corporations, and they should be held accountable for the harm they cause.

Sometimes we can obtain justice for victims and their families. Other times all we can do is provide the comfort that someone who is knowledgeable cared enough to try. A trial lawyer is called to be more that just a gladiator.  We need to remember that highest source of law and of professionalism is a rule of unselfish love, of sincere concern for the highest good for the other person.  While we are not grief counselors or psychologists, we need to be able to help folks get through the ordeal of their loss.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck  and bus accidents, including those resulting from driver fatigue.  Click here for a free consultation with no obligation.

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.

We do not use any of those online lawyer referral services, do not participate in any web site that does not fully identify this firm, and have no problem with disclosure of the sponsors of such sites.  On the other hand, it may be impracticable to list all participants in broad-based private or Bar-sponsored lawyer referral services. Both Georgia and the ABA Model Rules cover what is permissible in payment for use of lawyer referral services.  We are in the process of reviewing updates in the Georgia Rules of Professional Conduct, and I am on the Disciplinary Rules & Procedures Committee. I’m sure we will give this issue due consideration and try to strike a fair, realistic balance.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia. Ken Shigley has been listed as a “SuperLawyer” in Atlanta Magazine and one of the “Legal Elite” in Georgia Trend Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases  arising from truck and bus accidents.

The Shigley Law Firm  represents plaintiffs in wrongful death and catastrophic injury cases statewide in Georgia, and in other states subject to the multijurisdictional practice and pro hac vice rules in each state. Ken Shigley was designated as a “SuperLawyer” in Atlanta Magazine. He is a Certified Civil Trial Advocate of the National Board of Trial Advocacy, Chair of the Southeastern Motor Carrier Liability Institute and former chair of the Georgia Insurance Law Institute. He particularly focuses on cases arising from truck wrecks and accidents .