Community recognition is a great honor for any professional because it validates success in achieving goals and establishing reputation. Not only has Justin O’Dell been recognized in the legal community, but he is also honored to be featured in Cobb In Focus magazine’s May/June issue as a Leader of Cobb. Justin devotes time and resources to various non-proft organizations and civic groups in Cobb County because he believes strongly in the founding mission of O’Dell & O’Neal Attorneys – to serve clients and community. Read Justin’s story and you will understand his devotion to his community and appreciate his eagerness to serve clients who find themselves in difficult circumstances.
On March 22, 2013, Former NFL player Kordell Stewart filed for divorce from his wife of nearly two years, Real Housewives of Atlanta‘s cast member Porsha Williams Stewart. In her response to Stewart’s divorce filing, Porsha Stewart argued that she should be awarded alimony from Kordell Stewart. Kordell Stewart has a different opinion, arguing that his wife does not need any support from him because he claims she is an able-bodied person, earning income and is capable of supporting herself.
The couple was married only 2 years. During that two-year timeframe, Ms. Stewart was a cast member of the Real Housewives of Atlanta, presumably receiving income for her participation on the show. Due to the relatively short length of the marriage and the income Ms. Stewart presumably receives, is alimony appropriate under Georgia law?
“Alimony” is derived from a Latin term meaning “to nourish,” or to supply the necessities of life. Loyd v. Loyd, 183 Ga. 751, 752 (1937). Alimony is authorized to be awarded to either party, with the two controlling factors being the needs of one spouse and the other spouse’s ability to pay. A judge is never required to award alimony and in some cases is actually prohibited from awarding alimony, such as when one spouse’s adultery was the cause of the separation.
Once a Judge determines that there is a “need” and “ability to pay” sufficient to make an alimony award, the next questions are how much, and for how long. There are no specific requirements or parameters regarding the duration or the amount of alimony and Judges are granted very wide latitude in making these determinations. Some factors that the Court is encouraged to consider are the standard of living established during the marriage, the duration of the marriage, the age and condition of the parties, the financial resources of each party, and the time necessary for one party to gain employment.
In the Stewart divorce, Porsha Stewart’s quest for alimony will largely depend on what her needs are and what her income is. Her needs can include mortgage(s), utilities, car payment(s), medical expenses, and other monthly expenses that are considered by the Court to be reasonable and consistent with the lifestyle of the marriage. Her income from the Real Housewives of Atlanta will also play a role in an alimony determination because if she is able to meet all of her reasonable monthly expenses with her income alone, she will have a more difficult time obtaining an alimony award. If the Court determines that an award of alimony is appropriate, it will not likely be an extended duration due to the short length of the marriage and her own financial resources.
On March 21st, Justin attended the 2013 Georgia Super Lawyers and Rising Star Reception at the Mason Murer Fine Art Studio in Atlanta. Justin was honored as one of the 100 Rising Stars 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.
Part 3 of 3
By Justin O’Dell & Leslie O’Neal
For the 3rd part of our series on communicating with represented parties, we venture into the issue of employers, employees and e-mail. Many companies have policies in their employee handbooks regarding the use of e-mail in the office but how many are actually monitoring that activity? Are employees being told in advance what level of privacy they can expect when they send and receive e-mails at work? Should employers extend their internet usage policies to include e-mail communication? The Daily Report article by Shannon Green, “To read or not to read, what is expected?”, provides some excellent information on these very topics so we direct you to that article in it’s entirety:
Last month, we learned that Dick’s sister called, informing him that Mom is starting to decline in health. As a result, Dick’s sister is going to be “added” to all of Mom’s bank accounts just in case she needs to pay her bills. Sound familiar? What could go wrong?
Unless Mom is very, very careful or has an overly diligent banker, an awful lot can go wrong. When someone walks into a bank and asks that a person be added to an account, banks generally operate on the assumption that the person is going to be added as a joint owner of the account. By default, a bank will generally select that the account is “Joint With a Right of Survivorship” or “JTWROS”. Even if they do not expressly make that designation, Georgia law holds that the account is presumed to be with a right of survivorship, unless a contrary intention is indicated.
The problem occurs when Mom ultimately passes. By operation of Georgia law, the account belongs 100% to the joint owner at the moment of death and passes regardless of the contents or provisions of Mom’s will. The ownership transfer is only overcome by clear and convincing evidence of a contrary intention.
So, if Dick’s sister is added to the account and over time Mom begins pulling all of her money and property into that account (say for example she sells her home and moves into a care facility), Dick’s sister would effectively receive all of those funds to the detriment of Dick’s Father or the other children.
I have seen this fact pattern play out dozens of times. It is plainly obvious to everyone that the parent never intended to leave all the money to one child. In the majority of cases, the one sibling does the right and honorable thing and returns the money to the estate or distributes it equally. However, there are many instances where the sibling takes the position that the money is his or hers, just as Mom would have wanted.
The unfortunate fact is that the remedies to the situation are so simple. First and foremost, make sure you know your banker and know what they are having you sign. Ask questions and get answers. Second, if you need to add someone onto an account, designate them as having “signature rights only” so that they can conduct banking transactions, but have no ownership interest. Thirdly, if more rights and authority are needed, use a General or Financial Power of Attorney to act on behalf of Mom. Lastly, if Mom is in need and cannot care for herself or for her property, a Petition for Conservatorship or Guardianship can be filed in the Probate Court without a lot of time, trouble and expense.
Next month, we will look at the Probate Court process for dealing with an incapacitated adult and obtaining guardianship and conservatorship. What is required to file? What responsibilities are incurred?
Part 2 of 3
By Justin O’Dell & Leslie O’Neal
In Part 1 of Pandora’s Inbox, counsel for Arcadis employees inadvertently sent an e-mail intended for the employees to Arcadis. Arcadis then failed to notify employee’s counsel of the error, and instead used the privileged information in their counterclaim. Following this activity, the ABA issued two advisory opinions on August 4, 2011 addressing the use of e-mail communications with counsel.
ABA Opinion 11-459 addresses the duty of counsel to protect the confidentiality of e-mail communications with clients. It states in summary:
A lawyer sending or receiving substantive communications with a client via e-mail or other electronic means ordinarily must warn the client about the risk of sending or receiving electronic communications using a computer or other device, or e-mail account, where there is a significant risk that a third party may gain access. In the context of representing an employee, this obligation arises, at the very least, when the lawyer knows or reasonably should know that the client is likely to send or receive substantive client-lawyer communications via e-mail or other electronic means, using a business device or system under circumstances where there is a significant risk that the communications will be read by the employer or another third party.
For most litigants, the most common issue involves the sending or receiving of e-mails through a company provided e-mail account or accessing e-mails through a company computer. Most mid to large sized companies are required to monitor and secure employee e-mails for regulatory, compliance or insurance related purposes. Most employees are deemed to consent to the monitoring and review as a condition of employment. In 1999, the ABA concluded that a lawyer does not violate the duty of confidentiality by merely sending a non-encrypted e-mail. ABA Op. 99-413 (1999) (“Protecting the Confidentiality of Unencrypted E-Mail”). The decision was based on the presumption that an e-mail account contained a reasonable expectation of privacy. That expectation is diminished, however, when the account is knowingly monitored by an employer. The opinion notes that the case law thus far indicates a wide disparity as to under what circumstances such e-mails will be considered privileged.
The ABA opinion provides that, until presented with information to the contrary, one should assume that all employer e-mails accounts are monitored. As a result, an ethical obligation arises given a significant risk that the communications will be read by the employer or another third party. The ABA recommends that the attorney warn the client, at a minimum, of the following:
- The client has engaged in, or has indicated an intent to engage in, e-mail communications with counsel;
- The client is employed in a position that would provide access to a workplace device or system;
- Given the circumstances, the employer or a third party has the ability to access the e-mail communications; and
- As far as the lawyer knows, the employer’s internal policy and the jurisdiction’s laws do not clearly protect the privacy of the employee’s personal e-mail communications via a business device or system.
In addition, the ABA concludes that in these circumstances it may also be required that the lawyer specifically refrain from communicating with the client via an employer account and instruct the client to act likewise. Part 3 of Pandora’s Inbox will look at the duty a lawyer has when in receipt of copies of e-mails.
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/
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.
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????
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.