Georgia Supreme Court Blog

June 7, 2010

Court Thwarts Governor’s Attempt to Investigate Debt Collection Firm

Filed under: attorneys, George Carley — bce30064 @ 5:35 pm

In a 4-to-3 decision, the Georgia Supreme Court has upheld a ruling by a Cobb County court prohibiting a state official from investigating a law firm that collects debts on behalf of creditors.

Background

Joseph Doyle is the Administrator of the Fair Business Practices Act of 1975, Georgia’s principal consumer protection law that prohibits deceptive practices involving consumer trade. Doyle enforces the law through the Governor’s Office of Consumer Affairs in the executive branch. In 2008, after receiving complaints alleging abusive debt collection practices, Doyle issued an “investigative demand” to Frederick J. Hanna & Associates, P.C., requesting documents and information.

When Hanna refused to provide the information, Doyle petitioned the court to force Hanna to comply. The court refused, concluding that the demand amounted to an attempt to regulate Hanna’s law practice. Such regulation violates the Georgia Constitution’s separation of powers requirement, the court concluded, and “constitutes an impermissible interference by the executive branch into the exclusive jurisdiction of the judicial branch of government.” Under the Constitution, the judicial branch has the exclusive power to regulate the practice of law. Doyle, represented by Attorney General Thurbert Baker’s office, appealed to the state Supreme Court. Hanna is represented by the former Attorney General, Michael Bowers.

Majority: Governor’s Office Cannot Regulate Practice of Law

“The issue in this case is not whether the [Fair Business Practices Act] applies to a law firm’s own commercial or entrepreneurial activity when, for example, it attempts to collect fees from a client,” says today’s majority opinion, written by Presiding Justice George Carley. “Instead, this case involves [Hanna’s] attempts to collect moneys that were owed to its clients.” Therefore, “we hold that the representation of clients by a law firm does not come within the [Fair Business Practices Act] even if certain services were provided by non-lawyers within the firm and could have been offered by a company without any attorneys. If [Hanna’s] employees engaged in wrongful conduct against debtors, the remedy must be found outside the [Act].” Chief Justice Carol Hunstein, and Justices Robert Benham and Hugh Thompson join in the majority.

Dissent: Lawyers Should Not Abuse Public and Violate Consumer Protection Laws

In the dissent, however, Justice Harold Melton writes that the Fair Business Practices Act “is a law of general application that has nothing to do with impermissibly regulating the practice of law in violation of separation of powers.” As a result, “I must respectfully dissent from the majority’s erroneous conclusion that the remedies relating to [Hanna’s] allegedly abusive debt collection practices … must be found outside the [Act].‟ Investigating violations of the law that happen to involve lawyers does not automatically amount to impermissibly … regulating‟ the practice of law, as a lawyer who violates the law is just as subject to investigation as any other common offender.” Furthermore, “an attorney cannot abuse members of the public by engaging in unfair and unlawful debt collection practices and then shield himself from investigation under the [Act] because he was engaging in such unfair practices … on behalf of a client,” the dissent says. “A lawyer can, and must, practice law without punching people in the face. And a lawyer can, and must, practice law without violating the [Fair Business Practices Act] by abusing members of the public.” Justices P. Harris Hines and David Nahmias join in the dissent.

The Campaign Money Connection

A quick check of the Georgia State Ethics Commission web site reveals a disturbing connection between the actors involved in this case and the judges involved. The attorneys involved, including Mr. Hanna and Mr. Bowers, have regularly contributed substantial sums to the campaigns of the trial and appellate court judges that heard this case.

Bowers has donated substantial sums to the campaigns of Georgia Supreme Court Justices Benham, Hunstein, Melton, as well as the election campaign of the trial court judge, Lark Ingram of Cobb County Superior Court. See details.

Hanna has donated $10,000 to Thurbert Baker’s campaigns for Attorney General, the office tasked to enforce state law for the executive branch of Georgia. See details.

For more information about trial court decision, see docket on Cobb County Superior Court web site.

Eroding Public Confidence in Law

Debt collection attorneys can use the legal process to locate and collect assets, but consumer protection laws, according to this decision, cannot be used to investigate law firm debt collection practices. The implication is that attorneys are “above the law.” What relief is available to consumers who are subject to abusive debt collection practices by law firms? Are they supposed to file bar complaints and rely upon the State Bar of Georgia to regulate lawyers? As the court notes, non-lawyers may engage in debt collection and would be subject to regulation by the Governor’s office; therefore, two firms may engage in the same conduct by not be treated equally under the law.

The sad thing about this case is it is just an investigation of consumer complaints. In all likelihood, Hanna & Associates did not break the law. They go after people who are trying to cheat their creditors. Those who complain about debt collection practices are trying to get away with cheating creditors and have strong financial incentives to attack those trying to collect a valid judgment. Sunshine is a great antiseptic. When there is an apparent effort to cover-up, prevent investigation, and use status and money for unjust influence, minor incidents can lead to major infections. A case like this sends a terrible message to the public.

DOYLE V. HANNA & ASSOCIATES, P.C. (S10A0397) See Opinion Database
Attorneys for Appellant (Doyle): Thurbert Baker, Attorney General, Isaac Byrd, Dep. A.G., Sidney Barrett, Jr., Sr. Asst. A.G., Amy Burns, Asst. A.G.
Attorneys for Appellee (Hanna): Michael Bowers, J. Matthew Maguire, Jr., Geremy Gregory

January 26, 2010

Court Reinstates Death Penalty Despite Defender’s Deficient Trial Preparation

Filed under: attorneys, Carol Hunstein, criminal law, Death Penalty, murder — bce30064 @ 7:30 pm

Lance

Donnie Lance (Source: GA DOC)


The Supreme Court of Georgia has reinstated the death sentences given to a Jackson County man for the 1997 murders of his former wife and her boyfriend.

Donnie Cleveland Lance was convicted in 1999 of killing Sabrina “Joy” Lance and Dwight “Butch” Wood and sentenced to death for each murder. In 2002, the state Supreme Court unanimously affirmed the convictions and death sentences. But the following year, Lance filed a petition for a writ of habeas corpus – a civil proceeding that gives already convicted prisoners another chance to challenge their case in the county where they’re imprisoned. In April 2009, the habeas judge upheld Lance’s convictions but overturned his death sentences, finding that his trial attorney had provided “ineffective assistance of counsel” for failing to investigate claims that Lance had mental health problems. The state attorney general, representing the prison warden and on behalf of the State, appealed the ruling that threw out the death penalty, while Lance’s attorneys appealed the ruling that upheld his murder convictions.

In a unanimous January 25, 2010 decision, Chief Justice Carol Hunstein (data), wrote “we reverse and reinstate Lance’s death sentences.” In response to Lance’s cross appeal, “we affirm” Lance’s convictions.

According to evidence at trial, Lance had a history of violence against his wife, including electrocuting her with a car battery, beating her with his fist, a belt and a handgun and threatening her with flammable liquid and a chain saw. Joy’s father testified that just before midnight on Nov. 8, 1997, Donnie had called looking for Joy, and he told him she wasn’t there. Lance went to Wood’s trailer home, kicked in the front door and shot Wood twice with a shotgun, killing him. He then beat Joy with a shotgun with such force that the gun broke into pieces and her face was “utterly unrecognizable.” Lance later told a friend that his ex-wife, whom he called a derogatory name, would not be coming that day to clean the house and that both Joy and her boyfriend were dead. After his arrest, Lance bragged to an inmate that “he hit Joy so hard that one of her eyeballs stuck to the wall.”

In a 29-page decision, the high court agreed that Lance’s trial attorney “performed deficiently in failing to prepare for Lance’s trial by investigating Lance’s background.” Had the attorney investigated, he would have learned that Lance had a history of alcohol abuse, had ingested gasoline as a child, was once exposed to toxic fumes while cleaning an oil tank, had been shot in the head and had been injured in car crashes, one of which when he was fleeing police while drunk. He’d also been treated at Georgia Regional Hospital for depression. However, “[g]iven Lance’s long history of contemplating the murder of Joy Lance and Butch Wood, the manner in which he finally carried out their murders, and his utter disregard for their suffering and deaths afterward, we conclude that the new evidence of Lance’s subtle neurological impairments, even when considered together with the other mitigating evidence that was or should have been presented at trial, would not in reasonable probability have changed the outcome of the sentencing phase if it had been presented at Lance’s trial,” the decision states. “We also conclude, contrary to Lance’s arguments in his cross-appeal, that the new evidence of subtle neurological impairments would not have significantly affected the jury’s deliberations during the guilt/innocence phase.”

More Information: Georgia Supreme Court Database: HALL, WARDEN V. LANCE (S09A1536) and LANCE V. HALL, WARDEN (S09X1538) : Full Text and Visual Summary

Summary by Georgia Supreme Court Public Information Office

Attorneys for Appellant (State): Thurbert Baker, Attorney General, Mary Beth Westmoreland, Dep. A.G., Beth Burton, Sr. Asst. A.G.
Attorneys for Appellee (Lance): L. Joseph Loveland, James Boswell

December 17, 2009

Internet Law School Graduate Can’t Take Georgia Bar Exam

Filed under: attorneys, bar admission — bce30064 @ 5:35 pm

The Georgia Supreme Court has upheld a Board of Bar Examiners’ denial of a woman’s petition to waive educational requirements for admission to the Georgia bar. Joyce K. Batterson received her law degree from a correspondence law school that uses internet-based, online instruction, Northwestern California University School of Law. The school is not accredited by the American Bar Association, and Batterson, according to the Court’s November 23, 2009 opinion, “failed to show by clear and convincing evidence that the rule requiring a first law degree from an ABA-accredited law school should be waived on her behalf.”

Summary by Georgia Supreme Court Public Information Office

See Full Opinion: In the Matter of Joyce K. Batterson (S09Z1849)

Northwestern California University School of Law Web Site

December 16, 2009

Georgia Supreme Court Vacates $100 Fine Against Unruly District Attorney

Filed under: attorneys, murder, prosecutors — Tags: , , — bce30064 @ 5:48 pm


The primary issue before Georgia Supreme Court in The State v. Murray was how to handle a contempt order against a prosecutor, Assistant District Attorney Linda Dunikoski, for improper conduct in murder case.  The majority concluded that the Court may assert jurisdiction over a seemingly collateral matter before final judgment because the contempt order was issued in a murder case. 

Fulton County ADA Linda Dunikoski



According to the opinion, on October 6, 2009, the trial court found Dunikoski in contempt of court rules regarding attorney conduct and decorum and ordered her to pay a $100 fine. Dunikoski did not pay the fine, apparently at the direction of the District Attorney, and the trial court also ordered that Dunikoski be taken into custody. In response to this order, the District Attorney’s office filed an emergency motion in the Georgia Supreme Court.

Majority Opinion: Thompson
Concurring Opinion: Carley
Dissenting Opinions: Hines, Melton and Nahmias

Full text of court opinion: The State v. Murray (S10M0390)

Create a free website or blog at WordPress.com.