April 2017
President's Corner

Law Day 2017

We have several exciting Law Day events planned for this month, including the Law Day Dinner on  April 28.  We encourage you to purchase your tickets to the Law Day Dinner today, using the link in this newsletter!

The theme for Law Day this year is "The 14th Amendment: Transforming American Democracy."  Ratified on July 9, 1868, the 14th Amendment granted citizenship to all persons born or naturalized in the United States.  The 14th Amendment also prevents states from (1) denying life, liberty or property to any person without due process of law, and (2) denying any person the equal protection of the laws.  Through the 14th Amendment, many of the protections found in the Bill of Rights were extended to the states.  The American Bar Association writes, " Ratified during Reconstruction a century and a half ago, the Fourteenth Amendment serves as the cornerstone of landmark civil rights legislation, the foundation for numerous federal court decisions protecting fundamental rights, and a source of inspiration for all those who advocate for equal justice under law."

To read about the 14th Amendment, the Library of Congress provides the following information:  https://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html.

April Bar Luncheon 

The bar luncheon will be held on Friday, April 21st from 12 to 1pm at the 1818 Club in Duluth. Click here to register.

This month, we welcome state Rep. Brenda Lopez (D-Norcross) and state Rep. Sam Park (D-Lawrenceville), both practicing attorneys and legislators representing Gwinnett County, to provide an update following the 2017 session of the Georgia General Assembly.  

Rep. Lopez (above) is the Principal Attorney at The Lopez Firm, LLC, handling immigration and naturalization matters.  She is a graduate of Syracuse University College of Law and was elected to represent House District 99 in 2016.
Rep. Park (top right) worked at The Semrad Law Firm, practicing in federal bankruptcy court, before entering the political arena to seek public office.  He is a graduate of Georgia State University College of Law and was elected to represent House District 101 in 2016.

Our "Judge of the Month" is Chief Judge Robert Rodatus of the Gwinnett County Juvenile Court (pictured left).
2017 Law Day Events
Law Day Banquet
Please join us for dinner and drinks as we celebrate the Gwinnett legal community's contribution and service to our local community at the 2017 Law Day Banquet. The cocktail hour will begin at 6:00 p.m. and dinner will follow at 7:00 p.m.  A presentation and awards will follow dinner. Please dress in business attire.

Event Details:    Friday, April 28, 2017
                           6:00 p.m. to 10:00 p.m.
                           Buford Community Center
                           2200 Buford Highway NE
                           Buford, Georgia 30518
                           $40 Members/$50 Non-Members (dinner and beverages included)

E-mail Danielle Britt Mays at dmays@cbjblawfirm.com to RSVP no later than April 21, 2017. Please include any dietary restrictions with your RSVP.

Judge's Reception
Please join us for lunch at the 2017 Judge's Reception in the GJAC Auditorium Breezeway on Thursday, April 27, 2017, from 11:45 a.m. to 1 p.m.
Free for GCBA Members, $10 for Non-Members. 
E-mail Danielle Britt Mays at dmays@cbjblawfirm.com to RSVP no later than April 21, 2017. Please include any dietary restrictions with your RSVP.
Law Day Proclamation on April 18, 2017!

Please join us as the Gwinnett County Commission officially declares May 1, 2017, as Gwinnett County Law Day!

The Law Day proclamation will be held  April 18, 2017, at  2:00 p.m. at the Gwinnett Justice and Administration Center, 75 Langley Drive, Lawrenceville, Georgia 30046, during the Gwinnett County Commission's regularly scheduled Business Session.  Sessions are open to the public, but please e-mail Danielle Britt Mays at  dmays@cbjblawfirm.com  to let us know that you will be joining!

Religious Decision Making: Georgia Courts' Willingness and Ability to Enforce
by A. Latrese Cooper, Associate Attorney at  Meriwether & Tharp, LLC 

Marriage and divorce between those of differing religious backgrounds is more common, because our Nation and our State have enjoyed an increase in cultural diversity. When divorce or other child custody disputes arise between those of diverse religious backgrounds, questions often arise, such as: "Whose religion should the children practice?" and "How can such a determination be practically enforced?" The issue of religion is deeply personal.  For that reason, parties should seek agreement regarding the religious upbringing of their children.  If such agreement is not possible, Georgia case law provides some indication on how this issue may be resolved by a court. Once determined, whether by agreement or court order, recent case law reveals that Georgia courts not only have the ability to enforce their orders regarding religious decision making, but they are willing to take the steps necessary to do so.

Unless otherwise ordered by the court, in all actions involving the determination of child custody, a parenting plan shall include "an allocation of decision-making authority to one or both of the parents with regard to the child's education, health, extracurricular activities, and religious upbringing, and if the parents agree the matters should be jointly decided, how to resolve a situation in which the parents disagree on resolution[...]." O.C.G.A. § 19-9-1(b)(2)(E); O.C.G.A. § 19-9-3 (a)(8). In cases where the parties are in agreement on the issue of religious upbringing, or cases where the parties share the same religion, there is often little to no conflict about which parent will be awarded the authority to make decisions as to the children's religious upbringing. But, in matters where the parties disagree, especially in matters where the parties espouse different faiths, this issue can be fraught with conflict, thus necessitating determination by a court.  Click here for full article
News & Events
Andersen, Tate & Carr Relay for Life Cookout

Free CLE! Westlaw Training

Consumer Law & Probate Clinic Volunteers Needed!

Eadaoin Waller of Andersen, Tate, & Carr: 
Appointed Regional VP of IN-USA

Eadaoin Waller, Partner in the Corporate & Business Transactions Group of ATC Law Firm has been appointed Regional Vice President of IN-USA (Irish Networks Across America) and will represent the Washington DC, Philadelphia, New Orleans & Atlanta chapters at the IN-USA level. Her position will be responsible for serving as a critical link between Irish Network USA and its chapters.  Ms. Waller serves on the Board of Directors of the Oconee Cultural Arts Foundation, the Gwinnett Children's Shelter, and, most recently the IN-USA Atlanta. She has always been a supporter of, and participant in, Irish cultural life in the South.

ABOUT IRISH NETWORK USA: http://irishnetwork-usa.org/
Irish Network USA is the national umbrella organization integrating the Irish Networks that exist in various cities across the United States. It allows members of the networks to connect with their peers and to develop relationships that will foster success in their business, economic, cultural and sports ventures.
Senate Bill 42 Update

SB 42 amends Chapter 1 of Title 35 of the OCGA by adding that no state, country, or local law enforcement agency can authorize a vehicular pursuit unless Code Section 40-6-6 is met, probable cause exists that the individual is committing or has committed murder, aggravated battery, kidnapping, false imprisonment, rape, armed robbery, or any offense that creates an immediate threat of death or serious bodily injury.

Thank You to Gwinnett Pro Bono Volunteers!

Pro Bono Representation
Clarissa Farrier Burnett
David M. Wittenberg
Heidi G. Reese
Jonathan S. Tonge
Consumer Law Clinic 
Sherry Buda
Tamika Jones
John M. Miles
Probate Clinic
Lauren A. Bryant
Donald S. Horace
Raina Jeager Nadler
Patricia O'Kelley

A Time to Share: The 411 on Timeshare Ownership
By Heidi Gholamhosseini

Since 1996, timeshare plans have piqued the interest of vacationers all over the United States. Low prices and convenience make timeshares an attractive option to buyers. But a thick cloak of categories leaves timeshares a mystery to many purchasers, who sometimes impulse-buy their timeshare and then ask for legal clarification on what their ownership interest is after the fact. Unfortunately, this means it can be difficult for owners to choose how to unload their interest when they do not want to own it anymore.

When you purchase a timeshare, you gain access to a piece of vacation property that you can use generally one or two weeks of the year. For example, Joe owns a timeshare in Unit 1 of Condo-Condominiums in Miami for the week of July 1-7 each year. Joe rests assured that he has access to Unit 1 of that condo during that time of year each year, but the rest of the year the condo is owned by other people.

While categories exist within categories of timeshares, there are three basic ways to own a timeshare:
  1. Fee simple: In our example above, Joe owns a fee simple interest in a timeshare that was conveyed to him by deed. The ownership interest can be sold, willed or inherited much like the interest that most people have in their homes;
  2. Leasehold: Much like a lease on a car, leasehold ownership enjoys many of the same rights as fee simple ownership, but the timeshare can expire at a given date (though perpetual or 99 year leaseholds are not uncommon). Leaseholds in timeshares cannot be willed or inherited. Whether or not the leasehold interest is conveyed by a deed differs by state.  
  3. Right-To-Use: This is similar to a leasehold interest, but the expiration date is typically between 20-30 years and legal ownership is vested in a trust company. While this scheme is becoming more popular in the United States, it is predominately used in Mexico and other countries where deeding a timeshare is illegal. 
It is important to know what kind of real estate interest you actually own in your timeshare. If you aim to rent, sell, or pass the timeshare on to your heirs, a deeded timeshare in fee simple is your best option.  However, as with other pieces of real estate, the owner pays real estate taxes on his or her timeshare. For more information on transferring ownership in your timeshare, contact the law office of Andersen, Tate & Carr at (770) 822-0900. 
Legal Food Frenzy is 2 Weeks Away!
By Patrick T. O'Connor, President, State Bar of Georgia

One of our most exciting and impactful events of the year is just under two weeks away! The 6th Annual Legal Food Frenzy food and fund drive competition kicks off April 17 and runs through April 28. Already, hundreds of firms and legal organizations in Georgia have signed on to raise food and funds for their regional food bank during this friendly two-week competition.
Don't be left out! Register your firm or organization at galegalfoodfrenzy.org/sign-up!
Not only is the Food Frenzy a fun way to go head-to-head with your fiercest rivals outside of the courtroom, it also could not be for a more important cause. We all know we would do anything for our children, but 1 in 4 kids in Georgia are at risk for hunger and this becomes more severe over the summer months. Who is at their best when they are hungry? 

When you donate to your food bank, you are making a real difference in the lives of the children and families they serve. For every $1 donated, the food banks can on average put $8 worth of groceries back into the community. That is real impact. 

As we gear up for the competition, now is our chance to generate excitement and become true hunger champions. I encourage you to get your colleagues, clients, friends and family involved; see if a managing partner will match donations; implement a jeans day for employees who donate; challenge a competing firm; incentivize the office with a lunch if they meet a certain goal - get creative. Let's show Georgia how generous the legal community can be!
Family and Medical Leave Act Update :
Federal Circuit Court Approves Mixed Motive Charge for FMLA Retaliation Case

In Egan v. Del. River Port Auth., 2017 U.S. App. LEXIS 4993 ( 3rd Circ. March 21, 2017), the Third Circuit Court of Appeals held that "an employee does not need to prove that invoking [Family and Medical Leave Act] FMLA rights was the sole or most important factor upon which the employer acted;"  but must only show that the employer "consider[ed] an employee's FMLA leave 'as a negative factor' in employment decisions."
The Family and Medical Leave Act of 1990, as amended, prohibits an employer from interfering with, restraining, or denying the exercise of or the attempt to exercise, any right provided by the FMLA.  29 U.S.C. §2615(a)(1).
Congress expressly gave the Secretary of Labor the authority to prescribe regulations necessary to carry out the FMLA.  29 U.S.C. §2654.  Pursuant to this authority, the Department of Labor prepared a final rule interpreting §2615(a)(1) that states:
"The Act's prohibition against interference prohibits an employer from discriminating or retaliating against an employee or prospective employee for having exercised or attempted to exercise FMLA rights. ... [E]mployers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions... ." 
29 CFR § 825.220(c)(emphasis provided).
Although the purpose of 29 CFR § 825.220(c) was to clarify that "interference" with FMLA rights includes taking negative action against an employee for exercising FMLA rights-- including the right to take medical leave,  courts typically refer to an employee's claim that he has been discriminated against for taking FMLA leave as a "retaliation" claim.  Surtain v. Hamlin Terrace Found., 789 F.3d 1239, 1247 (11th Cir. 2015).  Click here to continue reading full article 
BV Landmines in Buy-Sell Agreements
By Mark A. Dayman, CPA/ABV/CFF, ABAR, CVA & Bruce C. Wood, CPA/ABV, MTx, CVA

Well written buy-sell agreements, whether stand-alone shareholder agreements or incorporated in partnership and operating agreements, facilitate business transitions even in the worst of times and are a crucial component of business planning.  A poorly structured agreement complicates execution and leads to the very disputes it was intended to eliminate.  Disputes related to the value of equity interests are some of the landmines that get into the way of a smooth transition.  We have some thoughts on that issue.
Avoid stated values. The true value of business interests changes continually over time.  In stated value agreements that contemplate periodic, often annual, updates of the owners' stated value, rarely is value updated.   So the last, often original stated value holds. That is frequently catastrophic since the true value of a transferor's business interest will almost always vary materially from an early stated value, leaving him or her or their heirs empty handed.   Ouch! 
And by the way, how did the owners know what the value was originally without engaging a qualified appraiser to guide them?  The same issue arises with annual updates.  The need for serial appraisals makes the use of stated value expensive, and in a real sense, not practical.
Value formulas can be just as meaningless.  The formula selected (i.e. "2 times book value", or "1 times revenue", or "3 times EBITDA") may not have properly valued a business interest at the outset.  Over time the usefulness of any particular value metric can change, creating even more variance between formula results and true value.  And at any specific measurement date the formula may miss-value of a person's interest simply because of unique circumstances that are temporarily distorted by the chosen metric. Click here to read full article 
Firm Focus: O'Kelley and Sorohan, Attorneys at Law, LLC

Interview with Joe O'Kelley of O'Kelley and Sorohan Attorneys at Law, LLC
Why did you decide to open a law firm together?  Both Diedra Sorohan and I had worked at separate firms who gave us an excellent foundation and were supportive.  We had common clients, and we were both very popular closing attorneys.  We would meet continually at events in Duluth and elsewhere.  Our clients would pass messages from one of us to the other as they closed at our firms.  So we decided it made sense to open a firm together.    
Why did you open your law firm in Gwinnett County?  Both Diedra Sorohan and I ran the Gwinnett office of our previous firms.  When we decided to open a firm together, Gwinnett was a logical choice as Gwinnett County is our home.  We believe in Gwinnett. 
What was your goal in opening a law firm?  We didn't set out to be the biggest residential real estate closing firm in metro Atlanta.  We wanted to open a local firm, with ties to the community, where our clients and the homeowners would be comfortable, and that provided good customer service.  We grew as our clients and real estate agents would ask us to open offices in different parts of town.  Eventually, we grew to the size we are today.  We have 18 offices, and by the end of 2017 we will have 20 offices.
What makes you unique from other firms? We believe it is our corporate culture: we strive to be nice and to be service oriented.  We are very accessible - to our clients and our employees.  We support our employees, by providing our staff and attorneys with opportunities for growth and give them a place to realize their progress. We support our local communities and local causes with our philanthropy. 
On the service oriented side - we want our customers to have a consistent experience no matter what location you chose.  We like to hire good, strong staff and attorneys who are people and service - oriented.  Then we train them all at the Duluth home office.  This ensures consistency, in that it allows all our staff and attorneys to use the same terms and speak the same language.  When there is a problem, or a difficulty with a file, we can quickly relate the issue to something that we've experienced before to solve the issue. We know that we cannot be perfect on every transaction every time.  But, we can fix just about any problem.  If we didn't do it right, we will fix it. 
What would your advice be to someone that wants to open their own firm?  Come talk to me.  I am happy to give people advice or information.  If you want to run your own firm, you have to be able to think ten steps ahead all the time; to think about what you will do if your business suddenly doubles, or suddenly drops off.  You also have to be built to be a business owner - to have the right mindset.  If you can't take complaints or praise, or if you worry all the time about your malpractice insurance or whether you will make payroll, then you are not built to be a small business owner.
Running a business is like being a master juggler.  You will always have ten or fifteen balls in the air.  Some balls are going up, and some are going down, and you can't focus on all the balls at the same time.  You have to be able to monitor all the balls, but to take a close focus on one or two of them at a time, and keep everything going.  You have to be able to hold everything together as you grow. 

Do you want to be featured next month? To have a Firm Focus on your law firm, please email Dodie Sachs with your submission! There will be a new Firm Focus each month.

Milich Minute

In a wrongful death case alleging negligence by a rehabilitation facility, a physician would testify that an orderly at the facility improperly administered CPR which significantly reduced the patient's chances for survival.

The defense objects that the physician was not qualified to give expert medical opinions under O.C.G.A § 24-7-702 (c)(2)(D) since he had only been a doctor for the past two years.

Which is the best answer?
  1. Sustained
  2. Overruled.  The physician is not testifying as to the standard care of a medical professional.
  3. Overruled.  The wrongful death case alleged simple negligence, not medical malpractice.
  4. Both 2 and 3.
Click here for the answer!
12 Milich

Click to purchase his book here!
Criminal Defense Update

The Gwinnett County Criminal Defense Bar hosted our annual criminal defense centered CLE on March 30-31, 2017 at the Gwinnett County Justice and Administration Center. The two-day CLE featured 10 speakers covering a variety of topics, including criminal evidence, social media professionalism, ethical decision making, and law practice management.  The programming coordinated by section President Constancia Carter received overwhelmingly favorable reviews by the more than 50 attendees. 

Upcoming Events
April 14, 2017 at 12 p.m.- GCCDB will hold its regular monthly meeting at the Gwinnett County Detention Center.  Speakers to be announced.  Lunch is $5 for members, $10 for nonmembers.  If you plan to attend, please RSVP to President Carter.    

Join the Section
Interested in joining the section or want to RSVP for a monthly meeting?  Please contact President Carter at constancia@cuadrapatel.com.
Estate Planning and Probate Update

On  Tuesday, May 9, EPPS is pleased to host a joint meeting with the Gwinnett Trial Lawyers Association (GTLA). The presentation will cover:
(1) personal injury, wrongful death, and medical malpractice issues relevant to probate attorneys presented by GTLA co-chairs R. Michael Coker and Charles Scholle, and
(2) probate, conservatorship, and compromise claim issues relevant to personal injury, wrongful death, and medical malpractice attorneyspresented by Gwinnett County Probate Court's Associate Judge Hillary B. Cranford. 
The lunch will be held on Tuesday12:00 noon at The 1818 Club at  6500 Sugarloaf Parkway, Duluth, GA 30097 .  The cost of lunch (for attorneys only) will be covered by Cherokee Funding.   Please email  Lindsey Cambardella   by Friday, May 5 if you plan to attend.  1 CLE hour available to attendees (pending approval from the State Bar; $5.00 per person). 
Save the Date : Please mark your calendars for the next EPPS lunch meeting at 12:00pm on July 11, 2017 (speaker and location details to follow).
Note that you do not have to be a member of the section to attend the meetings (please feel free to forward the message or bring a friend!).  If you are interested in joining the section, or simply being added to the section email list, please contact Melody Glouton or Lindsey Cambardella
Volunteer Opportunity:  Pro Bono Clinic : Please contact Elizabeth Strupe if you are interested in participating in the Probate Court Pro Bono Clinic that occurs on the third Thursday of each month from 1:30pm - 4:30pm at the Gwinnett Justice and Administration Center.
Family Law Section Update: 
Next Meeting Information

When: Wednesday, April 26th at 12PM
Where: La Cazuela Mexican Restaurant (upstairs meeting room) at 179 West Crogan Street, Lawrenceville, GA 30046
Cost: Free for members ($10 for non-members)

Speaker: Child Support Services will be back again to continue answering questions. They joined us back in October of 2016, but ran out of time due to the large volume of questions asked. they will be back for a second round of questions.

The Family Law Section of the Gwinnett County Bar Association is hosting its regularly scheduled meeting. Lunch is free for section members. All are welcome to attend. the meeting starts at 12 noon and generally lasts for approximately one hour. For additional information, please email sharonjackson@gmail.com, or send a text to 678-992-3799. Meetings are held on all even months at the same time and location. 
In This Issue
April Bar Details

Friday, April 21st 
from 12 - 1 pm 
at the 1818 Club
6500 Sugarloaf Parkway
Duluth, GA 30097

Gwinnett County Bar Association | | warren.davis@gwinnettcounty.com | http://www.gcba.org
P.O.Box 576
Lawrenceville, GA 30046