March Madness for Leslie O’Neal

Leslie in court cropped.Successful Appeal in Venable v.
Parker Cited by Michael Jordan

On March 4, 2013, basketball legend Michael Jordan was served with a paternity action here in Georgia.   Upon being served with the lawsuit, Jordan immediately asked for the Court to dismiss it, noting that the Plaintiff’s son had already been the subject of a custody, visitation, and child support order in the Plaintiff’s divorce from her former husband.  Jordan’s attorney argued that because paternity had already been established through that divorce decree, the issue could not be revisited.  Jordan’s attorney quoted Leslie O’Neal’s Venable case, stating “Courts of this State have repeatedly held that ‘public policy is not advanced by the disestablishment of legitimacy and paternity’. Venable v. Parker, 307 Ga. App. 880 (Ga. App. 2011).”  Shortly thereafter, the Plaintiff dismissed her lawsuit.

Ms. O’Neal has been hired often to assist clients who are unhappy with the result of their trial and feel that the trial court made a mistake in its final ruling. Prior to the cited Court of Appeals decision, Leslie represented Ms. Venable, a mother in a paternity action in the Superior Court of Cobb County.  Following the trial court’s ruling, Leslie pursued an appeal on Ms. Venable’s behalf to the Georgia Appellate Courts.  On February 16, 2011, the Georgia Court of Appeals found in Ms. Venable’s favor and reversed the trial court’s decision.  The Court of Appeals ruling in Venable has since been cited frequently in cases and law review articles as legal authority on the issue of paternity.

To learn more about the paternity action, refer to the AJC’s article here:  http://www.ajc.com/news/news/local/paternity-suit-against-michael-jordan-dropped/nWwcC/

 

Pandora’s Inbox

Justin Leslie at table croppedCommunicating with Represented Parties

Part 1 of 3

By Justin O’Dell & Leslie O’Neal

The widespread use of e-mail by lawyers and clients has opened a “Pandora’s box” of ethical issues and traps for the unwary.  Whereas litigators opine that the “E” in e-mail stands for Evidence, bar associations are finding that it also stands for “Ethical Violations.”  A lawyer in California recently learned the distinction in Terraphase Engineering, Inc., et al. v. Arcadis, U.S., Inc., (N.D. Cal. 2010).

At Arcadis, a group of employees were preparing to leave the company to form their own competing company.  Prior to litigation, the employees’ attorney attempted to send an e-mail to his clients, but due to “autocomplete” accidentally sent the e-mail to Arcadis.  The e-mail found its way to in-house counsel who then forwarded the same to outside counsel.  Neither notified the employees’ counsel, but instead used the e-mail as a basis for the Counterclaim ultimately filed in the lawsuit.  The employees’ counsel realized that the information could not have been known but for the e-mail and questioned counsel for Arcadis who admitted receiving and reading the privileged information.

The employees’ counsel filed a Motion which sought only to prohibit Arcadis from use of the privileged information.  Arcadis fashioned many arguments, including a particularly inventive claim that the rules of professional conduct did not apply because there was no active litigation between the parties at the time the e-mail was sent.  The Court ultimately went beyond the Plaintiff’s request and disqualified Arcadis’ outside counsel.  In addition the in-house counsel, who reviewed the e-mails, ordered Arcadis to dismiss its counterclaim without prejudice, to re-file the pleading with new counsel and awarded $40,000.00 in fees to the employees.

Not surprisingly, the use of e-mail was the subject of two of the 2011 ABA advisory opinions.  Issued on August 4, 2011, Opinion 11-459 addressed the duty to protect confidentiality of e-mail communications with a client and 11-460 addressed the duty when a lawyer receives copies of e-mail communications with counsel.  In Parts 2 and 3 of “Pandora’s Inbox”, we will take a closer look at the impact of these 2 ABA advisory opinions and the issues confronting the use of email communications between attorney and client.

 

Dick and Jane – Simple Wills

why-us1By Justin O’Dell

As introduced last month, Dick and Jane are a young, married couple with three children.  Dick and Jane have never been able to find the time to sit down and prepare their Wills.  They are now asking friends and family about getting it done.  Some of the common myths they are hearing are as follows:

1)      “Don’t hire a lawyer, just do it online.  Lawyers charge too much.”

2)      “You need to avoid probate and set up living trusts.”

3)      “You cannot name out-of-state people as Executor or Guardian.”

Drafting a Will is one of the most important legal exercises for a young couple.  Along with a Will, couples should consider completing the Georgia Advance Directives Form.  This Form will dictate decision making authority and end of life decisions in the event of a tragic situation whereby D ick or Jane cannot make a decision for his or her self.

The first myth is a common situation perpetuated online.  While it is true that legal forms are available for limited amounts of money on line, the insight and knowledge to make sure that the forms are drafted and executed correctly is not readily available.  I have had numerous instances where people have spent more money trying to deal with the issues created by poorly drafted or executed Wills online than they would have spent hiring a lawyer to do it correctly in the first place.  Think of it this way – you can also go online and learn to rewire your electrical panel, replumb your bathroom or even do knee surgery, but is that the best idea???  O’Dell & O’Neal charges $600 as a flat fee for this work which includes the consultation, preparation of the Will and execution of the Will and Advance Directives Form.  By contrast, the hourly rates of most lawyers would easily surpass that total in fixing a mistake.

The second myth is perpetuated by individuals seeking to overcharge clients for estate services.  The reality is that no one should avoid probate and even the “probate avoiding” documents still require admitting a Will to probate.  What the process is referring to really involves keeping assets out of probate, not avoiding probate court.  There are states and situations where keeping assets out of probate makes sense.  Some states still charge fees based on the size of the estate. Some individuals have extremely high net worth or unique family situations where living trusts provide value.  For Dick and Jane, simple wills are more than adequate.  Furthermore, many of the “probate avoiding” techniques establish living trusts to hold assets.  In order to accomplish their purpose, these living trusts must hold all of the parties’ assets and must have a separate tax ID number and file a separate tax return each year.  For individuals like Dick and Jane this only complicates their already hectic lives.

The final myth is commonly circulated based on old memories of law long ago.  It is true that at one time, restrictions existed regarding the appointment of out of state Executors, Trustees and Guardians.  Most of these restrictions are gone.  Executors and Trustees may freely serve without any additional requirements or costs and frequently do so.  The use of e-mail and Fed-ex makes dealing with local attorneys and the probate court as easy (if not easier) as dealing with someone on the other side of Atlanta.  As for guardianship, the paramount concern of the Court is the desire of the parents and the best interests and welfare of the children.

Next time, we will continue the Probate law theme and discuss some issues with Dick and Jane’s parents and aging.  Dick’s sister has called and informed that because Mom is in poor health, she is going to have Mom add her to all of her bank accounts.  Good idea????

Custody Of Mindy McCready’s Children And The Fallout When A Custodial Parent Dies

Leslie headshot outside_9797_10x13By Leslie O’Neal

News of the suicide of Mindy McCready on February 17, 2013 left the country music world in a state of shock.  It was no secret that as part of her personal struggles, McCready had been involved in an ongoing, contested custody dispute with the father of her 6 year old son, Zander.   McCready also had another child, a 10 month old son named Zayne, whose father had committed suicide just 5 short weeks before McCready took her own life.  The tragic turn of events for the country music singer begs the question: what will happen to her children?

If the case of custody over her children were taking place in Georgia, the answer would seemingly be simple with respect to her 6 year old son, Zander.  Georgia law provides that if one parent dies, the surviving parent is the sole natural guardian, even if the parents were divorced and the deceased parent had sole custody.  Furthermore, even if the deceased parent had designated another person as the Guardian over the child in his or her Last Will and Testament, that designation would not be carried out if the minor child has a biological parent still living.  Therefore, in the case of McCready’s 6 year old son, his biological father would immediately resume the role of legal and physical custodian.

This will likely be an issue for McCready’s mother, who had temporary custodial rights over both minor children before McCready committed suicide.  Many wonder whether she would have the right to overcome Zander’s biological father’s rights.  In Georgia, upon Petition by a specified third party, the Court has the discretion to award custody to a third party, though the legal standard is much higher than that set out in a normal custody case.   Specifically, the third party would have to demonstrate that 1) the parental custody would harm the child and 2) that an award of custody to the third party would best promote the children’s health, welfare, and happiness.  The harm must either be physical, or long term emotional harm.  Furthermore, the only parties that may petition the court for custody under this legal standard are grandparents, great-grandparents, aunts, uncles, great uncles, great aunts, siblings, or adoptive parents.  Such a custody award to a third party must be based on the best interest of the children, with the legal presumption favoring the child’s biological parent.

Unfortunately, the situation is more complex for McCready’s youngest son, Zayne, who is only 10 months old.  Zayne’s biological father, David Wilson committed suicide in January, leaving him with no biological parent to immediately assume custody.   In Georgia, if both of the child’s biological parents are deceased, the Probate Court intervenes to appoint a Guardian for the minor.   If the deceased parent died with a valid Last Will & Testament that designated a guardian for the minor, that person would presumably receive letters of Guardianship over the minor and have all rights, powers, and duties of a permanent Guardian.  If a parent dies without a valid Last Will and Testament, the Probate Court must appoint a permanent Guardian for the minor child.  So as fans mourn the tragic ending for Mindy McCready, the legal battle over her two sons is likely just beginning.

Supreme Court Weighs in on Family Law Matter Involving Custody Dispute

by Justin O’Dell

Most family law cases are decided on State, rather than Federal, law and also rarely involve issues arising under the U.S. Constitution.  As a result, it is extraordinarily rare to have the Supreme Court of the United States weigh in on a domestic case.  On February 19, 2013, the U.S. Supreme Court did just that, issuing an opinion in Chafin v. Chafin.

The dispute centered on international custody laws which are governed by Federal laws and also by laws set forth by the Hague Convention.  The cases are generally litigated in the Hague and in the Federal Courts.  In this matter, Mr. Chafin, a soldier returning from service in Afghanistan, and Ms. Chafin, born in Scotland, but living in Alabama, were being divorced in Alabama.  Mr. Chafin sought custody of their daughter in Alabama based on allegations of domestic violence and other parenting issues.  Ms. Chafin sought an order to leave with the child back to Scotland.

Ultimately, Ms. Chafin was granted permission to take the child to Scotland since that was the child’s habitual residence prior to the divorce.  She immediately made arrangements to leave.  Mr. Chafin sought to appeal, but was denied on the basis that it was moot since the child had already left to Scotland.  In agreeing to hear the case and listening to the arguments, Chief Justice John Roberts expressed concern that a party could “leave immediately” after a favorable ruling even though the decision is not final under the U.S. legal system.

The Supreme Court reversed the lower courts and held that although it is important that custody matters be decided expeditiously and without shuttling children back and forth, it is equally important that the parents have the rights afforded to them under the legal system.  Accordingly, the Supreme Court held that the decision to return the child to Scotland should have been stayed to allow Mr. Chafin a chance to appeal.

Read more about the case here:

http://www.cnn.com/2012/12/04/justice/court-custody

http://www.huffingtonpost.com/2012/12/05/chafin-v-chafin-supreme-court_n_2245731.html

And the full opinion of the Supreme Court here:

http://www.supremecourt.gov/opinions/12pdf/11-1347_m648.pdf

Justin O’Dell Named to Super Lawyers’ Georgia Rising Stars 2013

Justin cropped Super LawyerJustin O’Dell has been named to the Georgia Rising Stars list as one of the top up-­‐and-­‐coming attorneys in Georgia for 2013. Each year, no more than 2.5 percent of the lawyers in the state receive this honor. The selection for this respected list is made by the research team at Super Lawyers.

Super Lawyers, a Thomson Reuters business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a rigorous multi-­‐phased process that includes a statewide survey of lawyers, an independent research evaluation of candidates, and peer reviews by practice area.

The Rising Stars lists are published nationwide in Super Lawyers magazines and in leading city and regional magazines across the country. For more information about Super Lawyers, go to superlawyers.com.

The first Super Lawyers list was published in 1991 and by 2009 the rating service had expanded nationwide. In February 2010 Super Lawyers was acquired by Thomson Reuters the world’s leading source of intelligent information for business and professionals.

Legal Implications of Rihanna’s Forgiveness

Leslie headshot outside_9797_10x13by Leslie O’Neal

With the broadcast of the 55th annual Grammy Awards on February 10, 2013, it seems that the relationship between Chris Brown and Rihanna has come full circle.  While the pair attended this award show arm in arm this year, it was the night before this very event in 2009 that Chris Brown was arrested on charges of domestic abuse against Rihanna.  Shortly thereafter, photographs of badly beaten Rihanna surfaced along with a detailed police report which confirmed rumors that Rihanna had been severely beaten, choked, even bitten by an enraged Brown.

The charges ultimately resulted in Brown being sentenced to 5 years of probation and 6 months of community service.  As part of his sentence, Brown was placed under a restraining order which prohibited him from coming in contact with Rihanna.

Regrettably, what developed thereafter is not uncommon in situations of domestic violence: reconciliation.  It began with Rihanna casually posting photographs of the two together, making public appearances, and even teaming up for a musical collaboration on Brown’s 5th studio album, Fortune.  Each outing further confirmed that she and Brown were on the brink of reconciliation.  This culminated just weeks ago, on February 6, 2013 when Rihanna accompanied Chris Brown to a Court appearance stemming from the very incident in which she was the victim.  If that weren’t a bold enough statement, she blew Brown a kiss in the Courtroom and left with him hand in hand.

Rihanna is now dismissive of the backlash over her decision and is recently quoted in Rolling Stone magazine as stating, “If it’s a mistake, it’s my mistake.”

Regardless of the public disdain over her decision to reconcile with her attacker, Rihanna’s actions would have significant legal implications if the initial incident had occurred in Georgia.  Often the first step for a victim to secure protection from an abuser is to seek a Protective Order from the Court on an emergency basis.  In order to do this, the alleged victim must file a Petition for Emergency Protective Order and present his/her allegations to a Court.  The alleged perpetrator would not be given notice of this hearing due to the emergency nature of the issue.  If the Court grants the Emergency Protective Order to the accuser, the opposing party is immediately served with a copy of the Order, prohibited from contacting the accuser, and a follow-up hearing is scheduled shortly thereafter so as to give the accused an opportunity to present his/her side of the story.

What happens between the preliminary hearing and the follow up hearing can have a substantial impact on whether the Protective Order is dismissed, or extended for a 12 month period.  Often the parties at issue are involved in a relationship not unlike Rihanna’s and Chris Browns relationship; complicated and emotional.   Victims are often in committed relationships with their attacker and in many instances, are financially dependent on them.   This situation can make reconciliation seem very tempting; particularly if it results in the victim avoiding court, avoiding attorney’s fees, and avoiding the cross-examination of the opposing attorney.

However, under Georgia law, in order to obtain an Emergency Protective Order, the victim must declare to the Court that he/she is in imminent fear of bodily harm.  If the accuser then voluntarily makes contact with the alleged abuser, whether it be as simple as a text message or as involved as an in person reconciliation, this act will be considered an admission by the accuser that he/she is not, in fact, in imminent fear of bodily harm.  Georgia Courts have little tolerance for this sort of back and forth behavior in the Protective Order context and will often dismiss the Protective Order in its entirety if even minimal contact has been initiated by the accuser.

So while Rihanna may dismiss her decision as “her mistake” to make, let’s hope she does not glamourize that decision for those watching.

Legal Community News and Events

by Justin O’Dell

On February 7, 2013, Georgia Supreme Court Chief Justice Carol Hunstein delivered her State of the Judiciary Address.  The address served as the fourth and final remarks during her term as Chief Justice.  The Georgia General Assembly is presently considering a revision to the juvenile criminal code similar to the highly successful revisions to the adult criminal code in 2011 and 2012.

It is noteworthy that Juvenile offenders are among the most expensive to incarcerate; each juvenile costs the state in excess of $90,000 per year to incarcerate.  Unfortunately, of those incarcerated and released, 75% or more will reoffend.

The Justice’s remarks are not a call to become soft on crime.  As she herself stated “”Some of our juvenile offenders have committed heinous, violent crimes and must be treated as adults and locked away from society. But they are the minority. For our citizens’ sake, we must do better with the majority. Many of our juveniles deserve a second chance.”

Her remarks highlighted the need for mental and behavioral health options for treatment of clearly disturbed juveniles, but also alternatives such as counseling and treatment for petty thieves and drug offenders whose behavior stems from abuse or other issues.

This process marks the continuing reevaluation of the criminal justice system and an important debate worth having.  The rate of incarceration and recidivism has increased precipitously in the United States and in Georgia costing taxpayers billions of dollars in direct expenses on inmates and even more on tangential and societal costs such as foster children of incarcerated parents, lost tax revenue due to unemployment among convicted criminals and property and corporate losses due to criminal activity associated with addiction.

Meet Dick and Jane

why-us1by Justin O’Dell

For our first post, I thought that the best idea would be to introduce Dick and Jane and start things off on a happy note.  As I mentioned, this portion of the blog will take Dick and Jane through a variety of life events.  It will be impossible to keep the story chronological and linear, so I am not going to try.  Do not be surprised if Dick and Jane’s lives have more twists and turns than a soap opera.

First, the family:  Dick is a successful  graduate of the University of Florida who works as a project development manager for a mid-sized engineering firm.  Dick has a salary of $120,000.00 per year and also receives project bonuses when his projects come in on time and/or under budget.  In a good year, Dick can receive $40,000 in bonus compensation.  His company provides a 401k program to which he actively contributes a portion of his salary.  He also is able to provide health insurance for the entire family through his employer at a modest cost.

Jane is a graduate of the University of Georgia.  After graduation, Jane worked in marketing for a Fortune 500 company.  She stopped working after six years when she had her first child, which also coincided with a major promotion for Dick.  Jane has kept a small, home based marketing business going while raising the children, but does not earn a substantial sum of money doing so.

Dick and Jane met at a Georgia –Florida football game in their senior years of college.  They began dating after the game and married two years later.  Their first child was a son named Jackson, born after four years of marriage.  The second child, a daughter named Lindsay was born after 6 years of marriage.  The third child, a son named Tim was born after 10 years of marriage.  All three children are healthy and active in a variety of activities.  Jackson is somewhat rebellious, wild and can find trouble.  He struggles a bit in school and requires some tutoring and additional resources.  Lindsay is a runner, competing in cross-country and other events.  Tim is also athletic, but is very involved in church life and children’s activities at the church.

One of the first concerns for Dick and Jane is the fact that they have never done a Will.  They have several friends and colleagues in their ears saying things like:

“Just download it online and do it yourself”

“You need to avoid probate and set up living trusts”

“You cannot name anyone out of state to be guardian of the children”

In our first look at the ways in which O’Dell & O’Neal can help, we will examine the simple will process for couples like Dick and Jane and try and clear up some of the common probate myths and misinformation.  Stay tuned. . .

Giving Back

Justin and Leslie have a history of supporting many of the fine charitable organizations within Cobb County through donations of time, talent and funds.  These organizations include Must Ministries, the YWCA of Northwest Georgia, The Center for Family Resources, SafePath Children’s Advocacy Center, the Humane Society of Cobb County, the American Cancer Society Swordsman’s Ball  and the March of Dimes. Justin and Leslie are also supporters of the Cobb Justice Foundation which provides pro bono legal services to the citizens of Cobb County.

Leslie is currently active as an Advisory Board Member of the United Way of Northwest Georgia.  Justin has served on the Board of Directors for the Cobb Community Collaborative and founded its Business Advisory Council.  Justin also served for four years on the Board of Directors of Cobb Housing, Inc. with leadership roles in marketing and finance.  Justin was one of the founding members of Cobb County Diaper Day which annual raises donations of more than 50,000 diapers per year for multiple Cobb County Charities.  Justin was honored to read a proclamation from Governor Sonny Perdue at the first ever Diaper Day Celebration.

santa-breakfast-2012

Justin is one of the Founding members of Reconnecting Families, Inc. a non-profit which is dedicated to supporting the Cobb County Family Dependency Treatment Court and Juvenile Drug Treatment Court.  Justin served as Board Chairman from 2010 – 2012.  Every year, Justin’s Church, the First Baptist Church of Marietta, provides an Easter Egg Hunt and a Breakfast With Santa event for the participants of the program.

Justin has annually arranged a Courthouse tour for 5th grade students of the Marietta School District.  As part of the tour, Justin uses a mock trial team from a local high school to reenact the Dredd Scott trial, which is part of the 5th Grade Curriculum.

Egg HuntJustin and Leslie are both very active with the Kiwanis Club of Marietta.  Justin has served on the Spiritual Aims Committee, Programs Committee, Scholarship Committee and chaired the Sports and Social Committee and Membership Committee .  Justin has served as a Flag Captain for the club’s Flag Project which displays over 1700 flags around Marietta five times per year and currently serves as a Flag Project Chairman.  In addition, Justin was a volunteer and supporter of the 9/11 Commemorative Field of Flags for which the Kiwanis Club received national recognition.

In 2010-2011, Justin was honored to be chosen to chair the Young Children Priority One Committee where he spearheaded the one of the club’s major projects for the year – renovation of a children’s daycare facility and counseling area.  The facilities are used by mothers who are seeking treatment for drug and alcohol addiction.

justin-rebuilding-the-playhouse

Leslie has also dedicated herself to civic service in the Kiwanis Club.  In just 3 years of membership, she has volunteered her time for Kiwanis Read A Book, the Flag Project, Young Children Priority One Projects and Major Emphasis Porjects.  In 2010-2011, she chaired the Children and Youth Services Committee which coordinates the GEM Awards for the Marietta School District, the Read A Book Project and Just Desserts, which provides a treat of appreciation for teachers in the Marietta District.