Presidential Power Rankings: First Edition

american-flag-2a2

Two questions that Americans across the country will be facing when primary season begins in mid-2015: Is America ready for its first women President, and is America ready for its first President without a college diploma? Yes, I am speaking of former Senator and Secretary of State Hilary Clinton (D) and the current Governor of Wisconsin, Scott Walker (R). You are also probably also wondering whether or not I am directly saying that both of these prominent leaders and politicians will be the nominees of their party in 2016. My answer, is in the affirmative. Before I explain why these candidates will lead there party in 2016, let me run through some of the other candidates that will make a splash. I now present to you my first Presidential power rankings:

(8) Governor Chris Christie (R-NJ): If the Governor decides to enter the race, will previous controversy surrounding the Fort Lee lane closure scandal hurt his chances?

(7) Former Governor of Maryland, Martin O’Malley: The former Governor of Maryland will be Hilary Clinton’s strongest competitor if he decides to enter the Presidential nomination race. Currently, however, Vice President Biden has the stronger record and potentially a larger excel spreadsheet of potential donors.

(6) Former Governor of Florida, Jeb Bush (R): Another Bush in the White House? Anything can happen at this point. The former Governor may run into issues because of the potential unwillingness of financial supporters to back another Bush to compete for the White House.

 http://urbanintellectuals.com/wp-content/uploads/2013/04/jeb-and-george-bush-1.jpg

(5) Vice President Joe Biden (D): With the current war on ISIS and Middle East turmoil, Vice President Biden may be the most qualified to handle a foreign policy crisis. He has served in the U.S. government since 1973, and also the majority and minority ranking member of the U.S. Senate Committee on Foreign Relations. There is no doubt either that he has the knowledge and skill to handle Washington politics. Unfortunately, Vice President Biden has been a part of many political gaffes since becoming Vice President which may have ended his Presidential candidacy before it even began.

(4) Former Governor and Political Talk Show Host, Mike Huckabee (R-AR): Former Governor Mike Huckabee has previously served as the Governor for the state of Arkansas. Once his term ended, Huckabee decided to join Fox News and participate in his own talk show called “Huckabee.” The former Governor is a sure guarantee for social conservatism on issues such as abortion and same sex marriage. Huckabee is popular among social conservatives, however, if he intends to win the general election, his staunch views on social issues could hurt him with Independent voters.

(3) Senator Rand Paul (R-KY): Senator Rand Paul was the very first viable Republican candidate after President Obama won his second term in office. Most of Paul’s support comes from Republicans who believe in libertarian values. He is popular among young voters that range from the age of eighteen to twenty-five. Although he is a popular candidate among potential voters, there are questions as to whether or not he can win the support from the entire Republican voter base because of his libertarian views.

(2) Governor Scott Walker (R-WI): As of this past weekend, Governor Walker finished a close second to Rand Paul in the Conservative Political Action Committee straw poll. Governor Walker is very popular amongst Republicans and a majority of Democrats in the state of Wisconsin. Governor Walker’s main focus in his early years as Governor was cutting and balancing the state’s budget and limiting the collective bargaining power for many state employees. This has caused much controversy and is still drawing the ire of many protestors who sit on the state capital and protest. Governor Walker is a serious contender for the Republican presidential nomination and a strong opponent to go against Hilary Clinton who is the strongest contender for the Democratic nomination. He is also likely to be very popular among Independent voters.

(1) Former Secretary of State, Hilary Clinton (D): Out of all the candidates, Hilary Clinton has potentially the longest excel spreadsheet of potential financial donors. She has the most experience dealing with domestic and foreign policy issues. If it wasn’t for her age and her popularity among most Democrats, I would advise the former Secretary of State to wait another election cycle. With President Obama’s low approval ratings and another buzz line of “four more years of the same,” the Democrats will need the strongest nominee that they have needed in a recent Presidential election cycle. One could make the argument that because of President Obama’s approval ratings in the final two years of office, this could hurt the Democratic Party. The former Secretary of State edges Governor Scott Walker in this current rankings based on the Secretary’s experience in foreign policy.

 

I hope all of you will  join me again for another edition of Presidential Power Rankings!

Bryce Linden, 2L

Presidental Power Rankings
Who do you think is the strongest candidate?

 

Posted in Current News

Dovetail: A Macon Favorite

dovetail

When the much anticipated Dovetail opened in the Fall of 2012, it was just the type of restaurant Macon needed. From unique culinary creations to hand-crafted beverages, this new hub carried with it a contemporary appeal coupled with a fond 1920’s nostalgia making it unlike any other dining experience in Macon.

Through the revitalization of our dear downtown, many more fun and exciting restaurants have opened and graced us with their own respective charm—and delicious menu offerings. While all of our fantastic downtown restaurants should be supported and frequented, I’d like to take this time to highlight why Dovetail has remained my favorite little spot.

Dovetail offers menu items that use only fresh, local, and organic ingredients. As a follower of the organic foods movement, I find such comfort in dining with Dovetail because I know exactly where my food is coming from. From the brightest produce to the freshest meat, I remain a loyal customer because I know I’m not only enjoying just about the healthiest food money can buy, but I’m also helping support local farms. How fantastic is that?

Dovetail changes its menu items seasonally. Even with my most favorite and frequented restaurants, I can get tired of the typical menu offerings. Something I love about Dovetail is that they offer menu items based on what produce is in season. You can always count on light, fresh offerings in the heat of the Summer, while the menu is peppered with hearty stews and savory pork chops during the cold months. Dovetail approaches the notion of a small menu in just the right way: special-occasion visitors and regular fixtures alike have just enough time to taste the whole menu before it changes into something equally as spectacular.

Dovetail has the most diverse bar with the most creative bartenders. Never before have I been able to go into a bar and say: “surprise me.” This is one of my favorite things about Dovetail! As an avid bourbon connoisseur, Dovetail has expanded my pallet and exposed me to the knowledge of my most treasured spirit, and they have also created some of the most unique and complex drinks I’ve ever had the opportunity to taste—err—drink four of. The head bartender, Ryan Smith, is a true artist of his craft. He makes his own simple syrups, infuses the finest bourbons, and creates some of the most imaginative and elegant beverages I’ve ever had. Ryan is one of those rare souls who can cook—and in his case mix—by feel, rather than by any kind of recipe; and, I think that makes all the difference in my most favorite Dovetail drinks.

Dovetail will do anything for their customers, especially their regulars. While I’d never get special treatment because Dovetail is great to ALL of their patrons, they certainly take note of who their regular attendees are. The staff is so accommodating, always speaking to me when I come in, taking note of where I prefer to sit, and even asking me what I’d like to see on the next menu (I’ll say it again: LOBSTER ROLLS). There’s nothing worse than going in to a restaurant twice a week for several weeks and having the staff act as if they’ve never seen you. Rude! Dovetail always makes sure that I have a seat at the bar and that my friends and I are having a good time. As a patron who believes that service can make or break a dining experience, the positive attitudes I see from every member of the staff are just the icing on the cake of an already wonderful dining adventure.

I think Dovetail has a special place in all of our hearts. It’s the sister-share of our beloved Rookery; the home of healthy, delicious culinary crafts; the mecca for bourbon and rye; and the cozy space where you can relax after a long week with one-of-a-kind drink to go with your local Georgia dinner. Dovetail may not be the newest place on the block, but it sure is one of the best.

Katharine Hall, 1L

Posted in Around MLaw & Macon, Current News

5-4, Extension of Gay Marriage Nationwide: A Christian Perspective

N8S25.AuSt.91

Certainly from the title of this article alone, many are beginning to form their own preconceived judgments as to the contents within. Thoughts and memories of lunatics on college campuses, holding signs and screaming damnation are certain to come to mind. However, for those who are expecting that line of rhetoric, I deeply apologize you will find none of that here. We as Christians are not merely taught, but rather commanded to love one another. This command extends to all people of every race, religion, and cultural background. Screaming damnation hardly embodies the love of Christ’s ministry.

The Separation of Church and State is one of the cornerstones of our country as expressed through the First Amendment to the Constitution of the United States. This separation protects Christians, Muslims, Hindus and those who adhere to Judaism or any other religion equally from government interference. However, the constitutional protection present acts as a double-edged sword. While religious followers are insulated from government interference, the government is also prohibited from using religious adherences as basis of law. Thus the outcome of the Supreme Court’s decision should come as no surprise.

As Justice Kennedy stated, “The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity. The petitioners in these cases seek to find that liberty by marrying someone of the same sex and having their marriages deemed lawful on the same terms and conditions as marriages between person of the opposite sex.”

Many sought to dismiss gay marriage on a religious ground due to terms like sin and biblical instruction stemming from direct references to scripture. While I do not argue with this point, it is important to note that “All men have sinned and fall short of the glory of God”. Whether that sin be heterosexual sex before marriage, homosexual acts, being a drunkard, gluttony, lying, stealing, adultery, murder, or any other it is important to not single out one group’s sin. Once again Christians should not approach homosexuals with anger but rather look to Christ’s example. As Christ approached a woman caught in the act of adultery, facing being stoned to death as punishment, He turned to the crowd and said, “Let any of you who is without sin be the first to throw a stone at her.” One unifying fact amongst human beings is that we are all imperfect and all have committed wrongdoings.

So what is the Church’s response going to be? The Church should focus on the difference between marriage in the State and marriage in the Church. Once again we fall back on the Separation of Church and State. A marriage in the Church is far different than a state recognized or civil marriage. I expect various churches to respond by furthering the difference between a civil marriage and a religious marriage. Due to priests not being paid by the marrying couple and the long standing tradition of only allowing Catholics to marry in a Catholic Church, the Roman Catholic Church will have the easiest path to protecting the sacrament of marriage. Their priests will no longer sign the civil decree of marriage, but rather have the couple first obtain papers through the court before administering the sacrament of marriage. Thus resulting in a complete separation between Church and State when it comes to marriage through separating the government document from a marriage in the church. Whether or not Protestant churches will be able to exercise similar actions remains to be seen.

Certainly the State has spoken. The traditional definition of marriage has forever changed. This new era of civil rights has allowed a large group of human beings to now exercise their individual liberty and autonomy in the most intimate choices defining personal identity and beliefs. The response of Christians should not be hatred or disgust but rather love. The Separation of Church and State has long clarified that our religious practices are to be separate from State action. A marriage license issued by the state is completely separate from the church. If churches and pastors do not wish to take part in gay marriages, they certainly have that right. Their refusal will not prohibit homosexual couples from obtaining a marriage license.

The new era of civil rights has ushered in a new era of religious liberty. Religious persons should embrace the Separation of Church and State. The State has no place in regulating the activities of churches, and in turn state action is separate and apart form the activities of the church. Government oversight of religion or religious influence on government (possible sharia law) signals a much more devastating consequence than is brought about by allowing homosexuals the right to obtain a civil marriage.

 

Frank T. Gaddy, 3L

Posted in Editorials

Bringing It Back Home: The Greatest Lesson from London

london_parliament-1920x1200

“As Americans, you don’t really seem to trust your government.”

It was not something I ever expected to hear a professor say – especially not on the first day of class. And while her statement was almost offensive at the time, I later came to not only understand what she meant, but to be grateful for the circumstances that led her to make such a seemingly obscene observation.

I had just touched-down for my semester in London a few days before, and my life was already avidly different. You would think that after a year of preparations to make it possible I would have known exactly why I was going abroad, but that wasn’t the case at all. What I discovered during my time in the UK was more than I could have ever hoped for. After a few weeks, I had hit full emersion: My course schedule included subjects ranging from UN Human Rights to Legal Aspects of the Music Industry to Comparative Employment Law and Comparative Trial Advocacy. Aside from the fact that bread and brie was now a regular meal, I was interning for a solicitor, living in a flat, working out at the local gym, hitting the pub in the evenings, and even dating a Brit! All of these little things helped shape my experience in unique and irreplaceable ways, but there is one lesson that seems to stand out above the rest.

One of my greatest educational experiences was a result of exposure to the contrasts of the US and UK systems. Since our nation was essentially derived from theirs, what better entity to compare ourselves to? For starters, the UK does not have an actual written constitution. While the British will tell you that much of their constitutional law is technically “written,” there isn’t one document that is hierarchically superior to all others; no enduring “supreme law of the land.” The highest form of law in the UK is Acts of Parliament (statutes). At first glance this might not seem like a big deal, but when you consider the actual purpose of written constitutions, the importance becomes much clearer. Dating back to 1215, the concept of a written constitution is largely captured in the Magna Carta, which established that the law was to be respected and enforced, providing that justice shall be done as opposed to being bought and bartered; thereby placing law above man. Without written law that effectively trumps all others, there is no consistent reference point, leaving room for radical change without burden or barrier.

The body instituting such change is Congress, or in the UK’s case, Parliament. In our system, the power of the legislature can be effectively ‘checked’ by the Court. However, this is not necessarily so in the UK. Up until 2009, the British Supreme Court was the House of Lords – that’s right, the appointed half of the body responsible for legislating. Fortunately, now there is a separate Supreme Court (copy cats?), but of course there’s a small catch – the Court is not allowed to invalidate anything that Parliament does, thanks to a little thing called parliamentary supremacy.

The expansive and unchecked abilities of Parliament open the door to potential abuse of power, and this is widely recognized by the people. So what defenses are in place to prevent this abuse? As our professor would so boastfully say: “trust.” And this ‘trust’ supposedly equates to “political pressure” on government officials to act accordingly. And, I’m sure, with that political pressure in careful sight, Parliament can essentially write into effect whatever they choose, with no real structure to abide by and no superior law to regard.

“Parliamentary Supremacy provides the British with a more efficient government.” If efficiency means that it is easier to write and implement law, then I would have to agree with my professor on that statement. This might even be highlighted by the apparent inability of our Congress to get much accomplished recently, anyway. “However, separation of powers provides American citizens with more protection.” Yes. Undoubtedly, yes. I decided that when given the choice, I would elect protection over efficiency any day. It’s true, I am grateful for a system that provides such security, as well as the written Constitution that is responsible for creating and safeguarding that system. While our governmental structure is far from perfect, I came to appreciate its inherent superiority to others – even others that are considered profusely parallel.

Upon my return, I was asked if the trip had sparked my interest in working overseas. While that is a possibility that I am certainly open to, my experience last semester actually motivated me more than ever to take an active role here at home. I’ve been told that no matter your elected form of practice, the legal profession often invokes and necessitates a global perspective. While I knew that exposure to another culture, and especially another judicial system, would undeniably expand my viewpoint in this productive way, my time in London took things a step beyond that. I realized that we have to go abroad not just to be exposed to somewhere else, but to better understand, appreciate and be able to improve where we come from.

 Carrie Elizabeth Ferrando, 3L

 

 

Posted in Editorials

Hawks are on a Rise. Literally.

ATL-letters-Spot

Let’s play a game. Shout the first thing that comes to mind when you read these team names.

Los Angeles Lakers. Kobe aka the Black Mamba.

Cleveland Cavaliers.  King James.

New York Knicks. Melo.

Golden State Warriors. Stephen Curry.

Miami Heat. Lebron James??

Atlanta Hawks. ….?

I think you know exactly where I’m going with this. It seems like most franchises have a superstar on their roster. All of the players mentioned above have taken part in an NBA All-Star game. This year Atlanta had four players that participated (and the Hawks’ coaching staff). So why are there so many sports analysts that keep saying Atlanta needs a superstar? Haven’t they heard that we have an entire team of superstars? Basketball is team sport, and the Hawks are fast becoming its masters because they possess three important factors.

Balance. Unselfishness. Depth.

The Hawks are balanced on both sides. They can instantly switch back and forth between offense and defense. Being a top team defensively means only giving up an average of 96 points per game. When a team works in sync defensively, they can transition that flow and momentum to putting up points on the board (outside of the arch).

None of the players give priority to statistics. One game you have Jeff Teague scoring 27 points, and another where he has 11 assists but only 13 points. The team is not afraid to pass the ball; if someone else has a better chance at making a shot, they’ll find a way to get it to him.

Even the Hawks’ bench is impressive. Their starting lineup knows how to work together and put up W’s. The starters can easily relax on the bench and watch Bazemore put up double digits. I don’t want to jinx the Atlanta Hawks, but it seems like they don’t have a bad player on the roster.

You may think I am biased. Well, I am. Born and raised an Atlanta fan, my reasoning may be skewed, but it sure does feel exhilarating seeing Philips Arena filled with more Hawks’ fans than Spurs’ fans.  Non-Hawks fans only have one come back when I say the Hawks are going all the way, “y’all are going to choke.” Holding the longest active streak of playoff appearances in the East and not winning a championship does not look favorable for Atlanta, but the NBA hasn’t seen a Hawks team like this before.

Priya Patel, 2L

Posted in Sports

Legend’s House

old-books-32

Legend’s House
By Mary Kate Silloway, 3L

Years spent in darkness
lit by milky windows
tall worn chests
shelve public treasure

Minds collect themselves
and each other
spilling phrases on to pages
pages quickly, quietly turn

Pages collect in stacks
books collect on shelves
shelves collect dusty reverence
dusty words collect audience

Weather beats
marble walls
minds inside stay dry
small flickering lamps
light once-dark halls

Tiny flames become wildfire
consume white pages
leave blackened marks
dark pages swept together
kindle other flames

Posted in Arts & Culture

The Deal with Judicial Clerkships

US Supreme Court

Judicial clerkships: professors and staff talk to you about them in law school and maybe you tried it out one summer or semester for class credit, but with the usual paltry pay, why would an ambitious and likely heavily indebted law grad want to clerk after law school? While there are financial downsides to clerking, the benefits that come with being a clerk are unmatched in other legal job settings.

During my 1L summer, I clerked for a federal magistrate judge in Brunswick, Georgia. I knew absolutely nothing, and thankfully, no one expected me to know a lot. A former staff member of Career Services had previously clerked with this judge as a law student; she made a call, and I got my first unpaid job. While getting a job is usually not this easy, especially when the position is paid, I encourage you to utilize Mercer Law’s Career Services. Though they will not hand you jobs on a silver platter, they are an invaluable resource for those on the job hunt. During my 1L clerkship, I observed numerous court proceedings that I had never witnessed or even heard of before – arraignments, initial appearances, a criminal trial, a civil trial, jury selection, settlement conferences, and criminal sentencing to name a few. While you are encouraged to go observe these in Macon’s various courts throughout the semester, the observation as a clerk is a much more insightful experience, as you get to pick the brain of the judge about what just took place.  That personal knowledge of the case and immediacy is not typical of random observations. But a clerkship is much more than observation in the courtroom, it also affords you the opportunity to meet, get to know, and learn from attorneys and other important figures you encounter in the court. Networking is really not my thing, so this built-in feature of clerking was a god-send to me. In addition, I got experience drafting actual orders and getting my writing critiqued by a judge, the person’s opinion that matters most in the courtroom. As you will find when you get out of law school, writing to (or for) a judge is much different than writing for a professor. Outside of the courthouse, as a summer clerk, I got to help the judge with a presentation to a group of boy scouts at their summer camp and attend district-wide holiday cook-outs. I even got to go on a field trip to the Federal Law Enforcement Training Center (FLETC), where I got to peruse the facility’s movie-like sets, participate in counter-terrorism training on mock airplanes, and shoot several special, government-restricted firearms. In sum, my 1L summer was nothing short of awesome, and I gained some valuable “real world” experience to bolster my law school education.

When 3L year rolled along, I struggled with the decision of how to begin my career. Being recently engaged at that time, I knew that I should target the location where my fiancé and I then lived and planned to stay. In law school, all of my experience had been with the federal system and in much larger cities. In the small, rural southern Georgia town where I live, lawyers typically have general practices that cover every area of the law and do not have much dealing with the federal courts. In addition, although I had grown up near this area my entire life, I did not know many lawyers here. Thus, clerking for the superior court in my circuit appealed to me as a practical way to get my feet wet in the legal world in this particular location. In the seven months I have been working here as a clerk, I have yet to regret the decision, and I can truly imagine no better way to start one’s legal career. Here’s a list of why I think it’s so fantastic:

  1. You get to know a judge, or in my case three judges. A wise person once remarked that “[a] court’s decision might turn on what the judge had for breakfast.” Just like people in general, all judges are different with regard to preferences, education, mannerisms, culture, experience, and a vast multitude of other characteristics that comprise a person. While word of mouth through other attorneys and people connected to the court may provide insight into the particulars of the judge you will go before as an attorney, the direct knowledge you experience firsthand as a clerk is unmatched. Indeed, the personal relationship you foster with the judge you work for is something that makes you very valuable to subsequent employers. As a clerk, you learn what makes your judge tick – what qualities he values, what types of behaviors or arguments he dislikes, what information is most important to him when assessing a case, the types of things that can make or break an attorney who comes before him. With enough time, you begin to be able to predict how he will rule on cases. Because of this, some firms even pay you a bonus for having been a clerk.
  2. You learn the type of lawyer you want to be and the type of lawyer you do not want to be. My boss told me that if I learned nothing else from my clerking experience it would be the qualities that are desirable and undesirable in an attorney. Early on, I have learned the lawyers who are respected and those who are merely tolerated. Reputation is a big part of our profession, and it pays to invest in your good name. Clerkships provide an excellent opportunity to research, observe, and develop the characteristics of an attorney that you wish to exude in your professional endeavors.
  3. Reward without risk: education style. Clerks are somewhat insulated from making the embarrassing faux pas that young attorneys, or even out-of-town attorneys, often make in their first few interactions with the court system. Much like law school was its own culture with its own language and set of acceptable behaviors so too is each district, circuit, or even courthouse. I believe adapting to this environment is more challenging and demanding in the role of attorney representing a client or matter before the court than in the role of clerk. This position allows the clerk to learn from the mistakes that other lawyers make in the courtroom without having to suffer that experience personally. In addition, the clerk gets very familiar with local rules and procedures that can vary widely from court to court. In the circuit where I clerk, the judges often ask the attorneys to submit proposed orders on their motions. This is something I was never taught about in law school. However, knowing this information is essential to your preparedness and may help to more quickly resolve your cases.
  4. You get to be a judge. . .kind of. As a clerk, you draft a variety of different orders for your judge. Essentially, the clerk is the one who writes all of the opinions of the court with the judge’s approval, of course. While the judge may instruct you from the beginning exactly how he wants to rule in a case, often, as a clerk, you discuss what you believe the outcome should be based on your research and analysis with the judge. In this way, the opinion is very much influenced by the clerk.
  5. A plethora of perks! While many of your classmates are working long hours and weekends, as a clerk, you will mostly enjoy a less stressful, 9 to 5 workday. You can easily have hobbies, interests, and a social life outside of work. In addition, clerks get off for several holidays, like Columbus Day and Confederate Memorial Day. Your friends will be so jealous when they are slaving away in the office and you are downing cocktails in celebration of Robert E. Lee’s birthday. Because of their proximity to the judge, clerks often are on the receiving end of a lot of kindness and charity (i.e. food). Woe be unto the attorney who is unkind to the judicial staff!  Last but not least, judges get the bar exam pass list earlier than everybody else. Trust me, anything to shorten that brutal July to October wait will be much appreciated!

 

Keely Kight, Class of 2014

 

 

Posted in Features

Big Law vs. Public Interest Law: Resource Disparities

law_books.ashx_

As I enter into the last couple of months of my law school career, I look back at the experiences that I have been fortunate to have. Unlike a lot of entering law students, I came to law school knowing exactly what I wanted to do. I want to serve the underprivileged and underrepresented. My passion to continue down this path has only been confirmed by the disparities I have witnessed in the legal system.

After my first year of law school, I was offered a job at an international business law firm as a paid summer associate. I thought about declining the offer, but I was broke, so I decided to take the offer; however, not solely based on the money, I always want to experience everything before crossing it off my list, so although I was sure I wanted to do public interest law, I accepted. I felt like I was selling out, but I knew it would be important for me to see what all the fuss was about. I never knew that the experience would stick with me forever and impact me in a way that it did.

The summer associates were treated like royalty. Breakfast most mornings, unlimited Starbucks coffee every day, lunch almost every day (always during training or meetings), office parties, fundraising events, happy hours, golf outings, tickets to plays and sporting events, a firm retreat with hotel stay at the Hilton and access to the spa, etc. I could go on, but I think I’ve made my point, nothing was spared from the firm to show us, “This is where you want to be. Work for corporate America, and you will be taken care of.” I think we all can admit this is a very comforting idea.

When I saw my first paycheck, I started to get pulled in. I had NEVER seen that much money written to me in my life. I had only ever looked at salaries for public interest lawyers. I made $16,500 that summer. That’s half of an average public interest attorney’s salary per year, and I made it in ten weeks. That was only because I was a 1L summer associate, the 2L summer associates made $18,500.

Big business law firms have big money; therefore, they can offer someone a job more than a year out. All of the five 2L summer associates I worked with were offered full-time jobs during the first week of August before they entered into their third year of law school. That was a full year before their actual starting date, pretty sure that added to the comfort level. A public interest firm could NEVER do this (I’ll explain more later). Additionally, the firm gave each future associate a $5,000 advance to pay bar exam fees, BARBRI classes, hotel stay for the Bar Exam, and driving and parking expenses. I also recently found out that the firm sent them gift baskets during every finals period in their last year, and another one during Bar Exam studying.

At this point you are probably wondering, “Why wouldn’t you want to work at a big law firm like that?” Well, they asked me to come back my 2L summer and I declined, it was a great experience, but it wasn’t for me. Right now I’m thinking, “I’m an idiot,” because as I struggle to pay for BARBRI, all the bar exam fees, and all the other bull crap we have to spend money on, it doesn’t feel good to see some of my friends who chose big law getting everything paid for, that could have been me. I realize this sounds incredibly selfish but . . . I’m human. To give you a better understanding of how I am feeling, let me finally get into my experience at public interest firms.

This past summer I worked at a Federal Defenders Office in California. I absolutely loved the office. Everyone was incredibly passionate about criminal defense and serving indigent clients. It is the best feeling in the world to work with people who have the same passion that you do, I felt at home right away.

My father wasn’t too thrilled when I told him I was going to work in California for ten weeks with no pay. Additionally, I would need his help to pay for my flight there and back, $250 a month for parking, and an increase in my rent. He urged me to get a summer job where I would actually get paid. He didn’t understand the concept of working for free. It took weeks trying to explain to him that NONE of the jobs I was interested in paid. Why? Because I want to work for low-income individuals. When I told him, “They lack funding Dad! They can hardly afford to pay their licensed attorneys,” his response was, “Then why the hell do you want to go work for them?”

The first day started with bagels and cream cheese from Panera Bread for breakfast and fish tacos for lunch. I immediately thought I would be able to prove my father wrong. As my first day neared its end I called my now-fiancé to tell him that I was going to Office Max to get some office supplies and a trash can for my office. I was not expecting his reaction. He immediately said, “WHAT?! THEY EXPECT YOU TO PROVIDE YOUR OWN TRASH CAN?” I knew where he was coming from, because he works at the firm at which I was a 1L summer associate. Their office supply room is a 600 square foot room full of anything and everything an attorney and support staff may need and more. The Federal Defenders office had a drawer that had some Office Max pens, that’s about it. In fact, they were even out of notepads on our first day. I didn’t mind that we had to pay for our own office supplies, I was just happy to be there. After all, the Federal Defender’s Office had recently had a huge budget cut the year before, as did most other public interest organizations and non-profits that receive government funding. I wasn’t going to compare the two summers.

I got some amazing experience at the Federal Defenders Office; I wasn’t sitting in my office writing research memos all day hoping that the assigning partner would read it, I was utilized. I was out and about with my supervising attorney, going to jail visits, interviewing defendants for their new complaint hearings, and writing motions and briefs. I left the summer knowing that I wanted to work in public interest law.

I am currently looking for a job in Ohio. I have reached out to various non-profit organizations, and I am always told two things: 1) We usually hire from our volunteer law clerks and 2) We only offer full-time positions to licensed attorneys. This isn’t news to me. When I thought I would be working in Georgia, I heard the same thing. Public interest organizations don’t always know what funds they will have for the next year; therefore, they can’t offer any law student a job in advance (however, there are some exceptions). Once they know their funding, they need someone that can start right away and preferably know how the office runs. Ohio Bar results are not released until October 31. As someone who is interested in public interest, I can try to obtain a post-bar fellowship that will provide me with some money in between the time after the Bar and right before I start a full-time position. This is usually between $2,000-$5,000. If I am able to obtain one… this will be a nice buffer, but it sucks not knowing if I will have a full-time legal position until I pass the Bar Exam. It sucks not knowing if I’ll be in a position to start paying my student loans back by the time they become due. The big law firm at which I worked starts their new associates right after the Bar Exam and starts paying them their full salary right away.

Qualified attorneys and law students who would normally be willing to be a public defender or work for legal aid are discouraged because of the low pay. They are scared, and THEY SHOULD BE. Student interest rates have skyrocketed! Luckily, I still have the option of applying for a public interest loan forgiveness program, but students after me may not! More and more low-income individuals continue to need legal assistance and there are very few resources to help all of them. Limited resources leads to limited representation. There needs to be a better way to increase resources and allocate them to public interest organizations based on need. I don’t know the answer, but I would like to see a system in which indigent individuals are able to receive a similar level of representation as wealthy, corporate clients. Although I know I won’t receive the same resources that big law associates are offered, I feel good knowing I will be the resource that low-income clients need the most.

Marlene Otero, 3L

Posted in Editorials

Vaccinations: A Necessity for Public Health

shot

Within the past month the United States has seen a resurgence in the disease popularly known as measles. While previously believed to be removed from the U.S. populace in the 1960s due to a successful vaccination program, there have been several cases that have popped up recently.  A few of the recent cases have been linked back to Disneyland in California as well as others in developed nations such as Germany. The cause is the unfortunate side effect of the anti-vaccination movement.

This movement has roots dating back to the creation of the first vaccine from people who distrusted the contents of the medicine.  This was understandable at the time as many doctors were still experimenting in creating quality vaccines and it wasn’t unheard of for people to have negative reactions. The government still had a policy of minimizing the spread of disease and chose to pursue the strategy of immunizing the populace. Realizing that many people still wanted to avoid the inoculations there was a penalty imposed on those that wanted to avoid being vaccinated in an attempt to discourage those that didn’t want to comply. Despite the backlash this was upheld in Jacobson v. Massachusetts, in which the Supreme Court upheld the Massachusetts policy to require healthy citizens to be vaccinated, unless there is a specific reason not to, or pay a fine of five dollars. The court cited the government had the power according to the state’s police power and the need to ensure the safety of the populace.

Over the years the policy has changed in minor ways, but the overall goals have remained. The current policy is to have states mandate vaccinations for school enrollment, unless the students are exempted. They also require vaccinations for government health care workers and the military casting a wide net to inoculate. When deciding on a policy to pursue for public health, an important factor in the government’s decision is the concept of herd immunity, also known as community immunity, which is where a vaccinated majority protect the minority that can’t be vaccinated which in turn helps to prevent the spread of the disease.

Herd Immunity is a necessary consideration of public health officials when considering the vaccination of a populace to ensure maximum efficiency.  Typically the CDC will determine that a certain percentage of the populace must be vaccinated to ensure maximum efficiency. This number is different for each disease depending on the form of transmission. This number considers that some people will not be vaccinated due to health concerns or age. However due to changes in the immune system that come with age, the vaccines may also be less effective with older people which also must be taken into consideration. The threshold is designed to be the most effective number to avert the spread of disease. The current problem is that for various reasons, a sizable number of the healthy populace choose to not get vaccinated creating an untenable percentage of vaccinated people to non-vaccinated people thus damaging the effectiveness of the herd immunity.

The issue of vaccinations have become a political issue since the recent outbreak at Disneyland. The president recently took a stand stating, “get your kids vaccinated” and stating there is no scientific support of vaccine’s dangers. Kentucky Senator and Doctor Rand Paul took a mixed approach on the issue stating, “I’ve heard of many tragic cases of walking, talking normal children who wound up with profound mental disorders after vaccines”, but he also mentioned “I’m not arguing vaccines are a bad idea. I think they’re a good thing“. Some such as Dr. Ben Carson have cited the need for mandatory vaccinations, but blamed the recent outbreak on undocumented immigrants. Few politicians have encouraged a forced vaccination yet, but instead advocate for a voluntary approach with increased education on the subject.  The problem also lies in those with power not taking a stand as shown with the current head of the science and technology oversight subcommittee, Barry Loudermilk, saying “I believe it’s the parents’ decision whether to immunize or not” and continuing “most of our children, we didn’t immunize. They’re healthy”.  As of right now neither party has really taken a concerted stand on the issue, but there is a sizable number of people opposed to vaccinations in the constituencies of each party. For example one of the highest groups of non-vaccinated people is in California despite many democrats supporting mandatory vaccinations, while Mississippi contains one of the highest numbers of vaccinated people with many notable republicans saying they should be voluntary. The political implications will only grow though if less people vaccinate and more outbreaks occur.

The question then turns to how should the government convince people to vaccinate if many choose not to for religious or personal beliefs.  Enough people dislike the idea of a mandatory vaccination citing it as an overreach of government authority and the potential implications. Additionally the government can only exclude people that refuse immunization from the public sphere such as schools and federal employment. Some have suggested the populist notion of lawsuits against people after an outbreak. While this would work against hospitals and institutions that failed to follow regulation, it would be very difficult to prove who the outbreak started with and do little towards convincing individuals to accept immunizations.

The government should pursue a policy similar to the anti-smoking campaign by convincing the public that vaccinations are more beneficial than harmful and enforcing the policy in publicly funded environments. People must learn that many of the fears surrounding vaccines are without basis and succumbing to them puts their children and the public at risk. They must also notify people of the likelihood of quarantining when outbreaks occur, which is within the government’s power, if they do not have the proper vaccinations. Perhaps by convincing people that the true harm of vaccines are not obtaining them, then we can create a healthier society safer from preventable diseases.

 

Carson Mayberry, 2L

Posted in Editorials

Before I Commit Suicide, Let Me Waive My Privilege?: Psychotherapy Patients and the Medical Malpractice Dilemma

law

By: Ebony Jervonne’ Brown[1]

  1. Introduction

The holding in Cooksey v. Landry[2] requires all potentially suicidal psychotherapy patients to stop, wait, and waive privilege before committing suicide. Specifically, in Cooksey, the court held only non-privileged communications between a psychiatrist and a patient are discoverable, even if content of the communications is particularly relevant in deciding a wrongful death or medical malpractice claim against a psychiatrist. In doing so, the court held firm to statutory law, as well as Georgia case law, which governs the requirements of psychiatrist-patient privilege.

Although the court in Cooksey based its holding on public policy reasons for psychiatrist-patient privilege˗˗such as encouraging patients to speak freely to their mental health professionals˗˗the court did nothing to weigh the facts of the case against the public policy reasons that should have, arguably, changed the outcome. Cooksey was a case where a patient committed suicide and did not have the active ability to waive privilege, yet his parents could not seek legal action. Here, the stringent boundaries of psychiatrist-patient privilege were tested as the court’s holding brought attention to the absence of exceptions, leniency, and discretion to the statutory case law and rules governing psychiatrist-patient privilege.

  1. Factual Background

Just a short time after beginning his drug therapy in September 2012, Christopher Landry committed suicide.[3] Following Christopher’s death, his parents, Lisa and Michael Landry, investigated for potential wrongful death, medical malpractice, and survival actions against Dr. Cooksey, his psychiatrist. Before Christopher’s death, in August 2012, Dr. Cooksey prescribed Christopher Seroquel and Cymbalta, both drugs containing a Food and Drug Administration black box warning specifying the positive correlation between young adults taking the drug and suicidal thinking. The warning labels recommended that medical professionals monitor their patients for increased suicidal thoughts and behaviors when prescribing the drug. The Landrys argued Dr. Cooksey did not follow the recommended prescription monitoring.[4]

Because of their suspicions, and because of the pending actions, Michael Landry, as the representative of Christopher’s estate, requested copies of Christopher’s psychiatric records,[5] including all communications between Christopher and Dr. Cooksey, his psychiatrist. However, Dr. Cooksey refused to supply Christopher’s psychiatric records, claiming the records were privileged from disclosure as referenced in section 24-5-501(a) of the Official Code of Georgia Annotated (O.C.G.A),[6] Georgia’s psychiatrist-patient privilege statute.[7]

Soon after, Michael Landry filed a complaint seeking a permanent injunction to require Dr. Cooksey to produce all of Christopher’s psychiatric records.[8] He argued that without such records he would be unable to (1) investigate whether a cause of action could stand against Dr. Cooksey, and (2) gain the relevant and necessary information needed to initiate a medical malpractice claim against Dr. Cooksey.[9] The trial court concluded, without review of Dr. Cooksey’s files, that equity supported his position that he would be, essentially, remedy-less without Christopher’s psychiatric records.[10] The trial court granted the injunction and directed Dr. Cooksey to produce all of Christopher’s psychiatric records pertaining to medical treatment and the history of Christopher Landry. This included the production of all communications between Dr. Cooksey and Christopher during Christopher’s psychotherapy sessions.[11]

Dr. Cooksey appealed the trial court’s injunction and filed an emergency stay motion to stay the proceedings pending ruling on whether he should produce the privileged communications.[12] The appellate court granted his motion to stay the proceedings.[13] After reviewing the record and applicable law, the appellate court held the trial court erred in exercising its equitable powers to order the production of the privileged communications between Dr. Cooksey and Christopher. The court stated that those communications are explicitly protected from disclosure under Georgia law.[14]  Accordingly, the appellate court affirmed the trial court’s order that required disclosure of any non-privileged records and information about Christopher’s psychotherapy sessions, and then remanded the case back to the trial court to: (1) review Dr. Cooksey’s files to determine what information, if any, was non-privileged such that it may be disclosed, (2) determine whether such privileged communications were waived by the patient, Christopher Landry, and (3) require timely disclosure of all non-privileged information and also privileged information for which privilege had been waived.[15]

  1. Legal Background

The idea of protecting confidential communications between mental health professionals and their patients supports two interests: (1) the important private interest, of providing patients with confidence they may attain effective treatment without fear their personal information will be disclosed; and (2) the vital public interest, of encouraging the public to see mental health professionals when needed.[16] Accordingly, the psychiatrist-patient privilege has been recognized by many states as a basic necessity to further the general welfare interests of this nation.

  1. Psychiatrist-Patient privilege at the Federal Level

The psychiatrist-patient privilege has not been accorded constitutional status.[17] The United States Supreme Court did, however, recognize that psychiatrist-patient privilege serves both the public and private interests aforementioned, despite knowledge that the Constitution does not explicitly accord these rights.[18] In Jaffee v. Redmond,[19] the Supreme Court found that when weighing the evidentiary benefit of attaining privileged information against the overall benefit of maintaining and encouraging mental health across the United States, the benefits from the former are just modest in comparison to the benefits derived from the latter.[20] In permitting Georgia and other states to use psychiatrist-patient privilege as a defense to discovery, the Supreme Court has enabled psychiatrists to render effective and holistic treatment for their patients, and has encouraged patients to disclose personal information, which they may not have otherwise disclosed absent establishment of psychiatrist-patient privilege.[21]  Consequently, the psychiatrist-patient privilege has been enacted by statute in all states, and as a result, has been incorporated into the federal common law of privileges.[22]

  1. The Psychiatrist: Defined Under Georgia Law

Georgia law has codified the term psychiatrist with regard to its application to psychiatrist-patient privilege under O.C.G.A. § 25-5-501(a)(5).[23] Section 25-5-501(a)(5) states that a psychiatrist is a person who is licensed to practice medicine or reasonably believed by the patient to do so, and one who devotes a substantial portion of his or her time in the diagnosis and treatment of the mental or emotional conditions of the patient.[24]

Georgia courts have evolved in their definition of a psychiatrist,[25] and have held that a psychiatrist does not have to be specially trained to practice psychiatry.[26] For instance, in Wiles v. Wiles,[27] the Supreme Court of Georgia expanded the narrow definition of psychiatrist, finding the former definition placed a disproportionate emphasis on the training of medical doctors (in medical school), but ignored the time medical doctors spent in practice.[28] In lieu of this finding, States, like Georgia, have re-defined a psychiatrist as any licensed medical doctor who spends a substantial portion of time practicing psychiatry; or rather, one who is engaged in the diagnoses or treatment of mental or emotional conditions of patients.[29]

  1. Psychiatrist-Patient Privilege Under Georgia Law

Georgia has established psychiatrist-patient privilege through case law and O.C.G.A. § 24-5-501(a)(5),[30] which states that the confidential communications between a licensed psychologist and his or her client have the same basis for privilege as the privilege provided between an attorney and client.[31] Simply, the communications must not be disclosed.[32] Consequently, although parties may obtain discovery of any matter that is relevant to a pending action, discovery of matters concerning a specific case is limited to information that is not considered privileged.[33]  Moreover, the psychiatrist-patient privilege is absolute with regard to the communications between a psychiatrist and patient.[34] The patient is the only individual who can waive the privilege because the privilege does not cease with death.[35]

In order to establish psychiatrist patient-privilege at trial, and in order for the patient to claim a privileged relationship existed or currently exists, there must exist a requisite professional relationship. That is, the patient must have intentionally sought or contemplated a professional, mental health relationship with the psychiatrist, and the psychiatrist must have knowledge of the relationship.[36] Currently, Georgia courts refer to this privilege as the mental health privilege.[37]

  1. Waiver As the Only Exception to Psychiatrist-Patient Privilege

The communications between a psychiatrist and patient are only admissible in the discovery process if the patient waives the privilege.[38] Otherwise, such privilege survives even the death of the patient.[39] Regardless, not all psychiatric records are absolutely privileged˗˗only the communications between the psychiatrist and the patient are absolutely privileged[40]

For example, Georgia courts have held that records of treatment and diagnoses may be disclosed, and that only the direct communications between a psychiatrist and patient are absolutely privileged.[41]  In such cases, the trial court could conduct an in camerareview of the records to insure the protection of communications from disclosure.[42] In Dynin v. Hall,[43] the decedent patient overdosed and was later stabilized at the hospital.[44] The hospital kept the patient for a few days, at which time the patient died for an unknown reason.[45] The defendant-hospital sought discovery of all communications and records relating to the decedent’s psychiatric treatment, attempting to establish the decedent died from an overdose of prescriptions prescribed by her psychiatrist and not from the hospital’s alleged medical malpractice.[46] The trial court held that all information relating to the decedent’s psychiatric treatment, including all communications between the decedent and her psychiatrist, were discoverable, even though the decedent was dead and had not waived privileged.[47] However, the appellate court reversed the trial court’s order that granted discovery of all information, and noted only non-privileged communications or information, such as the psychiatric records, were relevant to the decedent’s mental state and were discoverable.[48]

Georgia courts have reiterated that psychiatrist-patient privilege must be explicitly waived, and may not be implied by actions of the patient.[49] Furthermore, there must be an affirmative act that is decisive and unequivocal.[50] Prior to Cooksey v. Landry,[51] Georgia courts had not decided a case where a patient had not waived privilege prior to death but the patient’s representatives would like to do so on the deceased patient’s behalf.

  1. Courts Rationale

The Court in Cooksey v. Landry[52] was divided in its decision in finding that psychiatrist-patient privilege is not waived even when the plaintiffs, parents of the decedent, have brought a medical malpractice, wrongful death, and survival claim against the psychiatrist on behalf of their child.

  1. The Majority

Justice Thompson, writing for the majority,[53] considered the issue of whether psychiatric records sought by parents of the deceased constituted privileged matters protected from disclosure under Georgia law.[54] In reviewing the trial court’s legal determinations de novo, the court affirmed the trial court’s order that required disclosure of any non-privileged records and information, but remanded the case back to the trial court to: (1) review Dr. Cooksey’s files to determine what information, if any, was non-privileged such that it may be disclosed, considering the trial court prematurely granted an injunction without analyzing the record; (2) determine whether such privileged communications were waived by the patient, Christopher Landry; and (3) require timely disclosure of all non-privileged information and also privileged information for which privilege had been waived.[55]

The court agreed that a civil action arising from the Christopher Landry’s death could be authorized under Georgia law. However, the Court also cautioned the trial court against certifying discovery of privileged communications between Christopher and his psychiatrist without reviewing the record and making a distinction between privileged and non-privileged information.[56] The court, although sympathetic to the Landry’s position, reasoned that the Landrys may have the right to file an action against Dr. Cooksey, but must not require the law to change or establish new legal principles just because the legal processes available to them provide an inadequate remedy.[57] The court pointed out that although Georgia law gives authority to trial courts to exercise equitable powers to assist plaintiffs who are remedy-less elsewhere,[58] such use of discretion should never override the positive enactments of the law.[59] Accordingly, and as a matter of public policy, such discretion should never trump the explicit privilege between a psychiatrist and patient that is considered absolutely confidential under Georgia law.[60]

For those reasons, the court grounded its argument in the public policy reasons for not permitting discovery of the privileged communications between a psychiatrist and his or her patient.[61] It stated that the law has long provided that the primary purpose of the privilege is to encourage patients to speak freely without fear of disclosure and embarrassment, thus enabling the psychiatrist to render effective treatment of the patient’s emotional and mental disorders.[62] Further, the court reiterated that the privilege remains inviolate even though the patient’s care and proceeding.[63]

In concluding its overall rationale, the court noted that O.C.G.A. § 24-5-501(a) is the exact positive statutory enactment that establishes a trial court should not be permitted to use its discretion to employ an equity argument for production of otherwise privileged matter.[64] The court pointed out that although proving wrongful death and medical malpractice claims against Dr. Cooksey may have been dependent on the privileged communications between Christopher and Dr. Cooksey, the Landrys still had enough requisite legal rights to maintain their actions for Christopher’s death, and also had the ability to obtain the actual records and files from Dr. Cooksey through normal discovery procedures provided under Georgia law.[65] The Court emphasized that the only repercussions the Landrys faced were the fact that they had no rights to the actual communications between Dr. Cooksey and Christopher.[66] The court reasoned that the “inability to discover potential evidence within a legal proceeding following proper application of Georgia rules of evidence is not the same as having no legal remedy at all, especially since the [Landrys] argued to the trial court.[67] Finally, the court reiterated that it must not allow the trial court to exercise its equitable powers and its own notion of what is right, accordingly, it must not require disclosure of privileged communications.[68] The court explained to do so would bring uncertainty to Georgia’s well-defined psychiatrist-patient privilege and would eviscerate the effectiveness of the privilege.[69]

  1. The Dissent

Writing the dissent with Justice Hunstein joining,[70] Justice Benham[71] began with the proposition that although psychiatrist-patient privilege was derived to protect both private and public interests,[72] not permitting Christopher’s representatives an ability to use the communications in their action against Dr. Cooksey protects and shields Dr. Cooksey from liability.[73] Justice Benham suggested the majority could have held firm to the public policy reasons behind psychiatrist-patient privilege simply by permitting disclosure of the communications between Christopher and Dr. Cooksey.[74] According to Justice Benham, those principles would have protected the patient, and protected the public interest for promoting mental health care, just as the privilege intended.[75]

To reiterate his point, Justice Benham cited instances where, in California, the personal representative of a patient, if the patient is dead, is defined as the “holder of the privilege” such that the representative may bring claims on behalf of the decedent patient as if he or she is the decedent patient.[76] The patient’s representative may also waive the psychiatrist-patient privilege and other statutory privileges on behalf of the decedent-patient. He noted that disclosure of the communications between the psychiatrist and Christopher was much more important to the overall interests of substantial justice than protection from any public interest injuries that disclosure is likely to cause.[77]

In addition, Justice Benham noted the irony of the majority’s reasoning to reverse discovery of Christopher’s psychiatric records.[78] He explained that the majority opinion served only to shield a psychiatrist from potential liability for providing unsuccessful, and allegedly deadly treatment to his patient.[79] The dissent analogized this shielding to Cooksey, explaining that in deciding against production of the privileged communications, the majority shielded Dr. Cooksey from potential liability in Christopher Landry’s death.[80] Justice Benham expounded: (1) the main purpose of the statute is to protect the patient, yet the majority does not do so; and (2) disclosure of the communications would have been permitted in the event that the patient would have been alive to file his own medical malpractice claim against Dr. Cooksey, yet the decedent is not alive so his representative should be permitted to do so on his behalf.[81]

Furthermore, Justice Benham analyzed the statutory language as it appears in two O.C.G.A. sections 31-33-4 and 37-3-166(a)(8.1),[82] to which the majority cited in its explanation that communications between a psychiatrist and patient are absolutely privileged.[83] He explained that the literal reading of both statutes did not support the majority’s holding: O.C.G.A. § 31-33-4 states that “[t]he provisions of this chapter . . .  shall not apply to psychiatric, psychological, or other mental health records of a patient.”[84] If read and applied literally, this section merely prohibits the release of mental health records to the patient himself, not to the representative of the patient’s estate; Section 37-3-166(a)(8.1) states that “[a] copy of the record may be released to the legal representative of a deceased patient’s estate, except for matters privileged under the laws of this state[,]”[85] but this does not include the “release of otherwise privileged material by a psychiatrist engaged in private practice in response to the waiver of privilege by the deceased patient’s legal representative.”[86]

In addition, Justice Benham pointed out that other states, such as Massachusetts, have allowed for waiver of privilege by a patient’s guardian when that patient is incompetent to waive privilege himself.[87] For example, in District Attorney for the Norfolk District v. Magraw,[88]  the court reviewed a Massachusetts statute, providing that a guardian may be appointed to a patient to determine whether to invoke or waive psychiatrist-patient privilege.[89]  Justice Benham analyzed the reasoning in Magraw, and asked the following question: If there is a reason to allow waiver of privilege while the patient is alive, why is such waiver disallowed when the patient is dead?[90] Justice Benham then provided a hypothetical: Consider the fact that the guardian, or representative of the decedent’s estate, both have the same goal, which is to look out for the patient’s best interest: in one instance the patient is alive, yet another party is permitted to decide on the patient’s behalf because he is incompetent, while in another instance the patient is dead, yet the representative of patient’s estate may not decide what is best for the patient, even though the patient cannot do so himself. In pointing out these discrepancies in public policy anlayses and the law behind psychiatrist-patient privilege, Justice Benham reiterated that permitting the parents’ discovery of communications between Christopher and his psychiatrist, does not positively disturb the legislative policy behind psychiatrist patient privilege, as the majority stated. Rather, it promotes the legislative policy.[91] In essence, Justice Benham pointed out the inconsistencies, and patent absurdities in the majority’s argument against permitting discovery of communications between Christopher Landry and Dr. Cooksey.[92]

Justice Benham concluded the dissent by rejecting the majority’s conclusion that permitting disclosure of the communications between Christopher and Dr. Cooksey would eviscerate the effectiveness of psychiatrist-patient privilege.[93] Instead, he believed it would permit the estate representative to pursue the patient’s interest in obtaining effective and appropriate treatment.[94]

  1. Implications

The decision of The Georgia Supreme Court to prevent parents from access to their children’s psychiatric records after their children commit suicide exposes the stringent parameters under the psychiatrist-patient privilege. As applied in this case, the psychiatrist-patient privilege protects the psychiatrist instead of the patient.

This issue may appear narrow, but its effects are far reaching for the psychiatrist-patient privilege. The legal precedent it creates marks the unyielding evisceration of the very public policy reasons that support the privilege in the first place. When application of the privilege creates absurd results, such as shielding the psychiatrist from all forms of liability, two questions are raised, and must be answered: (1) whether psychiatrist-patient privilege should be applied without exception; and (2) whether application of psychiatrist-patient privilege should be applied differently in cases where medical malpractice claims are filed against a psychiatrist?

  1. Application of an Exception, or Not

Although the Georgia legislature established strict parameters for the psychiatrist-patient privilege,[95] Georgia courts have also recognized limited exceptions to other privileges.[96] For example, Georgia courts have recognized exceptions to attorney-client privilege when the application of the privilege operates only as an impediment to the pursuit of justice on behalf of the actual individual it was intended to safeguard.[97] Moreover, the court in Cooksey v. Landry[98] already acknowledged that the privilege is not absolute when the proper case appears that demonstrates the “statutory privilege must give way where countervailing interest in the truth-seeking process demands such a result.”[99] If any case exists, this is the proper case where the privilege must give way because of countervailing interests because if this privilege stands without exception, many parents, like Christopher’s parents, will be unable to determine whether doctors, like Dr. Cooksey, are guilty of malpractice, unless of course the patients stop, wait, and waive privilege prior to committing suicide.

  1. Application of Privilege Based on the Facts: Comparisons Between Attorney-Client Privilege and Psychiatrist-Patient Privilege

This case is not consistent with the analyses and findings of cases in other jurisdictions, which have recognized exceptions to the attorney-client privilege and have given the deceased’s representative permission to waive privilege on behalf of the deceased.[100] Such exceptions occur when, for example, the communications between the deceased and his or her’s attorney are subject matter of a legal malpractice claim.[101] Permitting these limited circumstances, where attorney-client privilege may be waived by a representative, furthers the pursuit of justice for the wronged client. In essence, the other jurisdictions have weighed the public policy reasons behind the privilege and have determined the deceased patient’s interest must stand even after death.[102] Accordingly, establishing limited exceptions to the psychiatrist-patient privilege, which follows the form and subject matter established for attorney-client privilege, would further the pursuit of justice in Georgia for psychotherapy patients caught with the dilemma of wanting to bring a malpractice claim against a psychiatrist on behalf of a deceased patient when that patient had not waived privilege prior to committing suicide.

There is also an irony in permitting a decedent’s representative to stand firmly in the shoes of the deceased to file a lawful action, but then barring the decedent from complete relief based on technicalities in the law. Such a practice provides no effective recourse for a psychiatrist’s failure to provide treatment to the decedent. Moreover, although it is arguable that the Georgia Code, on its face, does not grant exceptions to psychiatrist-patient privilege, it is also arguable that the Georgia Code does not permit exceptions to the attorney-client privilege.[103] In fact, where attorney-client privilege is concerned, Georgia courts have been willing to abrogate the privilege in circumstances where adhering to the privilege would be a disservice to the interest of justice for a potentially wronged client. [104]

Furthermore, other jurisdictions have recognized a guardian’s right to assert waiver for an incompetent patient to protect the patient’s best interest.[105] Given this precedent, it makes little sense to disallow access to psychiatrist-patient communications after the child’s death. After all, such permission would be in the best interest of the patient in order for his or her’s representative to bring a successful medical malpractice claim on his or her behalf. This is true especially when the psychiatrist should have known that his actions would result in malpractice. These are the points that the majority fails to consider. Instead, the majority relies on the already-established purpose for psychiatrist-patient privilege[106] without thinking of the absurdities the privilege causes in situations like those surrounding Christopher Landry’s death.

  1. Conclusion

In summary, the majority compares psychiatrist-patient privilege to attorney-client privilege, but refuses to apply the known exceptions to the former. The majority mentions that the public policy reasons that support psychiatrist-patient privilege would be completely disregarded if we permit exceptions to the privilege when a party requests communications, even if the communications play a central role in a pending action,[107] yet Georgia courts have never used this same line of reasoning when deciding cases on attorney-client privilege.[108] In fact, they have permitted exceptions to the privileges in such cases.[109]

Despite the need to balance the public policy reasons behind psychiatrist patient privilege, the court in Cooksey, disregarded the purpose of the privilege by applying it to all patients, giving no remedy for deceased patients and their representatives that fall victim to a psychiatrist’s malpractice. This across-the-board application is not reflective of the plight for justice for which the privilege was established, but rather permits psychiatrists to stand in the shadows of their privilege at times when their malpractice must be exposed. In effect, the holding in in Cooksey v. Landry[110] requires all potentially suicidal psychotherapy patients to stop, wait, and waive privilege before committing suicide.

[1] The Author would like to thank the best Professors and Advisors in the world, Teri McMurtry-Chubb and Kamina Pinder, for their help in guiding and organizing the Author’s thoughts throughout the writing of this Note. The Author truly appreciates their patience, kind words, and encouragement.

[2] 295 Ga. 430, 430, 761 S.E.2d 61, 61 (2014).

[3] Cooksey, 295 Ga. at 430, 761 S.E.2d at 63.

[4] Id.

[5] See Cooksey, 295 Ga. at 430 n.1, 761 S.E.2d. at 63 n.1. Both Michael and Lisa Landry brought the claims against Dr. Cooksey, but placed the claims under Michael Landry’s name.

[6] O.C.G.A. § 24-5-501(a)(5) (2014).

[7] Cooksey, 295 Ga. at 430, 761 S.E.2d at 63.

[8] Id.

[9] Id.

[10] Id. at 431, 761 S.E.2d at 64.

[11] Id.

[12] Id. at 431, 761 S.E.2d at 63.

[13] Id.

[14] Id.

[15] Id. at 435, 761 S.E.2d at 65.

[16] Jaffee v. Redmond, 518 U.S. 1, 2, 116 S. Ct. 1923, 1924-25 (1996).

[17] Willet v. State, 223 Ga. App. 866, 869, 479 S.E.2d 132, 137 (1996) (comparing the right to self-incrimination, which is accorded constitutional protection under the fifth amendment of the Constitution, and the right to psychiatrist-patient privilege, which is not accorded constitutional status).

[18] Jaffee, 518 U.S. at 2, 116 S. Ct. at 1924-25 (1996).

[19] Id. at 2, 116 S. Ct. at 1924-25.

[20] Id.

[21] Id.

[22] Id. at 1, 116 S. Ct. at 1924.

[23] O.C.G.A. § 25-5-501(a)(5).

[24] Id.

[25] Wiles v. Wiles, 264 Ga. 594, 596, 448 S.E.2d 681, 683 (1994).

[26] Wiles, 264 Ga. at 596, 448 S.E.2d  at 683; see also Jaffee, 518 U.S. at 15, 116 S. Ct. at 1931 (stating that the privilege also extends to confidential communications made to licensed social workers in the course of psychotherapy).

[27] Wiles, 264 Ga. at 596, 448 S.E. 2d at 683.

[28] Id. at 597, 448 S.E.2d at 683.

[29] Id.

[30] O.C.G.A. § 24-5-501(a)(5) (2014).

[31] O.C.G.A. § 43-39-16. Attorney-client privilege and psychiatrist-patient privilege have parallel requirements. Id. For example, information that comes to the knowledge of an attorney, during or in anticipation of an attorney-client relationship is privileged. O.C.G.A. § 24-5-501(a)(2)..This privilege belongs to the client, not to the attorney. O.C.G.A. §§ 24-9-24. Moreover, the psychiatrist-patient privilege generally conforms in shape and substance to the attorney-client privilege. Paul S. Milich, Ga. Rules of Evidence, § 23:1 (2013); see also O.C.G.A. § 43–39–16   (stating that the “[c]onfidential relations and communications between [a mental health professional] and [a] client are placed upon the same basis as those provided by law between attorney and client”). Both privileges are codified in the Georgia Evidence Code, O.C.G.A. § 24-5-501(a)(2), and both survive the death of the client. Cooksey, 295 Ga. at 440, 761 S.E.2d at 69 (Benham and Hunstein, JJ., dissenting).

[32] O.C.G.A. § 43-39-16 (2004).

[33]Fed. R. Civ. P. 26(b)(1).

[34] Wiles, 264 Ga. at 595-96, 448 S.E.2d at 683; Kimble v. Kimble, 240 Ga. 100, 101, 239 S.E. 2d 676, 676 (1977); Wilson v. Bonner, 166 Ga. App. 9, 16-17, 303 S.E. 2d 134, 142 (1983).

[35] Id.

[36] Collins v. Howard, 156 F. Supp. 322, 324 (D. Ga. 1957); see e.g., Rachals v. State, 184 Ga. App. 420, 421, 361 S.E.2d 671, 673 (1987) (outlining a two part test in determining whether psychiatrist-patient privilege may be used as a defense: “(1) the [patient must be] seeking out psychiatric care in the usual sense of the term; and (2) [treatment must be] given or contemplated”).

[37] Kennestone Hosp. v. Hopson, 273 Ga. 145, 147, 538 S.E. 2d 742, 747 (2000).

[38] O.C.G.A. § 43-39-16 (2004).

[39] Id.

[40] Dynin v. Hall, 207 Ga. App. 337, 338, 428 S.E.2d 89, 90 (1993).

[41] See Mincy v. Georgia Dept. of Community Affairs, 308 Ga. App. 740, 708 S.E.2d 644 (2011).

[42] See Mincy, 308 Ga. App. at 740, 708 S.E.2d at 644.

[43] Dynin, 207 Ga. App. at 337, 428 S.E.2d at 90.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id. at 338, 428 S.E.2d at 91.

[49] Trammel v. Bradberry, 256 Ga. App. 412, 412 568 S.E.2d 715, 715 (2002).

[50] See e.g., Fields v. State, 221 Ga. 307, 308-09, 144 S.E. 2d 339, 342 (1965) (stating that “[t]o call a physician to the stand, and examine him as a witness to [the defendnat’s] physical condition . . . is a waiver of the privilege in regard to all of [the physician’s] knowledge of [the defendant’s] the physical condition”); see also Trammel, 256 Ga. App. at 424, 568 S.E.2d 725 (2002) (citing Wiles, 264 Ga. 594, 448 S.E.2d 681, 683); see generally Sims v. State, 251 Ga. 877, 881-882, 311 S.E. 2d 161, 165 (1984) (finding that “[c]ommunications between husband and wife and between psychiatrist and patient are protected”, even in the presence of third-parties, and despite the fact that in some jurisdictions presence of a third-party could vitiate the psychiatrist-patient privilege altogether);

[51] 295 Ga. at 430, 761 S.E.2d at 63.

[52] Id.

[53] Id.

[54] Id. at 430, 761 S.E.2d at 63.

[55] Id. at 435, 761 S.E.2d at 66.

[56] Id. at 431-32, 761 S.E.2d at 63-64.

[57] Cooksey, 295 Ga. at 432, 761 S.E.2d at 64.

[58] Cooksey, 295 Ga. at 432, 761 S.E.2d at 64 (quoting O.C.G.A. § 24-4-20; 23-1-3).

[59] Id.

[60] Id.

[61] Id. at 432, 761 S.E.2d at 64.

[62] Cooksey, 295 Ga. at 432, 761 S.E.2d at 64; see also State v. Herendeen, 279 Ga. 323, 325-26, 613 S.E.2d 647, 649 (2005). For a more in depth analysis of Herendeen, see John Scott Husser, Jr., “I DIDN’T VOLUNTEER FOR THIS @&#%!”: THE APPLICATION OF GEORGIA’S PSYCHOLOGIST-PATIENT PRIVILEGE TO COURT-ORDERED MENTAL HEALTH TREATMENT, 57 Mercer L. Rev. 1327 (Summer 2006).

[63] Id. at 433, 761 S.E.2d at 65.

[64] Id. at 434, 761 S.E.2d at 65.

[65] Cooksey, 295 Ga. at 435, 761 S.E.2d at 66; see generally Dynin, 207 Ga. App. at 338, 428 S.E.2d at 90 (explaining that only privileged communications between a psychiatrist and patient are privileged, but, the records and other non-privileged documents related to a patient’s psychiatric treatments are still discoverable).

[66] Id.

[67] Id. at 435, 761 S.E.2d at 66.

[68] Id.

[69] Id. at 436, 761 S.E.2d at 67.

[70] Id. at 442, 761 S.E.2d at 70.

[71] Cooksey, 295 Ga. at 436, 761 S.E.2d at 67.

[72] Jaffee, 518 U.S. at 2, 116 S. Ct. at 1924-25.

[73] Cooksey, 295 Ga. at 436, 761 S.E.2d at 67 (Behnam and Hunstein, JJ., dissenting).

[74] Id. at 436, 761 S.E.2d at 67.

[75] Cooksey, 295 Ga. at 436, 761 S.E.2d at 67.

[76] Id. at 436, 761 S.E.2d at 67.

[77] Id. at 436 n.8, 761 S.E.2d at 67 n.8.

[78] Id. at 438, 761 S.E.2d at 68.

[79] Id.

[80] Id.

[81] Id.

[82] Id. at 439, 761 S.E.2d at 68.

[83]  See Id. at 433, 761 S.E.2d at 65 (majority opinion).

[84]O.C.G.A. § 31-33-4 (2010).

[85] O.C.G.A. § 37-3-166(a)(8.1) (2010).

[86] Cooksey, 295 Ga. at 439, 761 S.E.2d at 68 (Benham and Hunstein, JJ., dissenting).

[87] Id. at 439, 761 S.E.2d at 69; see e.g.,M.G.L.A. 233 § 20B (2001) (explaining that “[i]f a patient is incompetent to exercise or waive such privilege, a guardian shall be appointed to act in his behalf under this section”).

[88] 417 Mass. 169, 169, 628 N.E.2d 24, 24 (1994).

[89] Cooksey, 295 Ga. at 439-40, 761 S.E.2d at 69; e.g. District Attorney for Norfolk District v. Magraw, 417 Mass. 169, 174, 678 N.E.2d 24, 27 (1994); M.G.L.A. 233 § 20B (2001).

[90] Cooksey, 295 Ga. at 440, 761 S.E.2d at 69.

[91] Id. at 440, 761 S.E.2d at 69.

[92] Id. at 440, 761 S.E.2d at 69. Justice Benham still recognized that Georgia has not provided for the appointment of a guardian in cases where the patient is incompetent to make decisions, such as waiving privilege. Id. Justice Benham only provided the particular analysis from Mcgraw to shed light on the fact that other jurisdictions have provided a guardian and they had not found that it disregards the public policy reasons behind the psychiatrist-patient privilege. 417 Mass. at 169, 628 N.E.2d at 24. Thus, Justice Benham cited to McGraw as a basis for analysis in broadening the scope and outlook on the true intentions of establishing psychiatrist-patient privilege, and furthermore, urged the majority to view the big picture, rather than apply such an across-the-board standard to each case without weighing the facts first. Id.

[93] Id. at 442, 761 S.E.2d at 70.

[94] Cooksey, 295 Ga. at 441, 761 S.E.2d at 69-70.

[95] See Jaffee, 518 U.S. at 2, 116 S. Ct. at 1924-25 (1996) (noting the public and private interests for establishing state-codified psychiatrist-patient privilege).

[96] Cooksey, 295 Ga. at 441, 761 S.E.2d at 69-70.

[97] Id.

[98] 295 Ga. 430, 430, 761 S.E.2d 61, 61 (2014)

[99] Cooksey, 295 Ga. at 441-42, 761 S.E.2d at 70.

[100] See Mayorga v. Tate, 302 A.D.2d 11, 11, 752 N.Y.S.2d 353, 353 (2002).

[101]Id.

[102] Id.

[103] Cooksey, 295 Ga. at 440, 761 S.E.2d at 69.

[104] Id.; see e.g., Yarbrough v. Yarbrough, 202 Ga. 391, 391, 43 S.E.2d 329,329 (2006) ( applying an exception when disclosure of communications between an attorney and client regarding the execution of a will is permitted when complete justice is served by the knowledge contained in such communications); Both v. Frantz, 278 Ga. App. 556, 556, 629 S.E.2d 427, 427 (2006) (finding a crime-fraud exception to attorney-client privilege applied to communications between a client and an attorney that relate to the client’s and the attorney’s fraudulent conduct in transferring property allegedly owned by the client’s wife).

[105] Cooksey, 295 Ga. at 339-440, 761 S.E.2d at 69.

[106] Id. at 432, 436 761 S.E.2d at 65, 66.

[107] Id. at 436, 761 S.E.2d at 66-67.

[108] See e.g., Yarbrough, 202 Ga. at 391, 43 S.E.2d at 329; Both, 278 Ga. App. at 556, 629 S.E.2d at 427.

[109] Id.

[110] 295 Ga. at 430, 761 S.E.2d at 61.

Posted in Look at the Law

Women in the Legal Field

Gavel

Patricia Arquette got me thinking.

There is almost an equivalent ratio of males to females in law schools around the nation. Mercer Law actually has more females than males. If the numbers start off the same, where do all these women disappear? Let’s take a look at women in private practice. According to the American Bar Association, 45.3% of summer associates are women, 44.8% of associates are women, 20.2% of partners are women, 17% of equity partners are women, and only 4% of the managing partners for the 200 largest law firms are women. Where are all the women going?

There are a few different scenarios that come to mind.

First, women have just started entering the legal field at an equal rate to men. If you walk through the first floor hallways at our law school you can see how as you travel back in time to the days of mullets and jheri curls, you don’t get to see many faces with bobs or  page-boy hairstyles. We all know you can’t become a partner overnight, so maybe the reason numbers decrease as you go up is due to the simple fact that there aren’t that many experienced women who qualify for the positions. When you look at the numbers for attorneys that have been practicing for 25+ years, there are triple the number of men than women, so it only makes sense that there are fewer women in the higher up positions. Another contributing factor is that women tend to retire at a higher rate and earlier than men do. If there are less women in the pool to choose from then there are going to be fewer of them that make their way up the corporate ladder.

Second, maybe women are disappearing because of social influences. If a woman chooses work over motherhood, is she neglecting her female duties? When a woman decides to become a mother, she has the option of taking maternity leave of up to 12 weeks in Georgia. But let’s say she only decides to take a few weeks off, is she taking motherhood too lightly? If she takes the full time, will it damage her career irreparably?  Does this mean she is not committed to her advancing her career? It seems to be a wide spread belief that taking time off for maternity leave adversely impacts careers. So this is where the inequality kicks in.

Patricia Arquette was on to something when she said that women need equality. According to the ABA, women attorneys only make about 73% of what their male counterparts are making. The only distinguishing factor between a male and a female attorney is that women have the option of taking 12 weeks off for maternity leave. That’s not a fair justification for shortchanging their salaries.

Women enter law schools at the same rate, but they disappear on the way up and the reason why is still unknown. Maybe one day I’ll be able to discover the answer as I attempt to work my way up.

 

Posted in Editorials

MLFP Polls

MLFP Poll
What would you most like to read about in MLFP?