Atlanta Injury Lawyer BlogArticles Posted in The Legal Profession
My Client’s Presidential Pardon Achieved Seven Years Before President Biden’s Sweeping Pardons
I was very happy to hear that President Biden has decided to right historical wrongs by pardoning any U.S. veterans who were convicted for being gay while serving in our U.S. Armed Forces. It is well past time for our country to acknowledge this wrong and the damage it did to so many gay veterans. As President Biden stated: “Today, I am righting an historic wrong by using my clemency authority to pardon many former service members who were convicted simply for being themselves,” Biden said in a statement. “We have a sacred obligation to all of our service members –- including our brave LGBTQI+ service members: to properly prepare and equip them when they are sent into harm’s way, and to care for them and their families when they return home. Today we are making progress in that pursuit.” About time, is all I can say.
I find this very interesting given my experience in securing a Presidential Pardon for a client who had been convicted of having a homosexual relationship while he was serving as an Officer in the U.S. Army. He served a year and a half in Ft. Leavenworth Prison for being gay. I worked for this client for 6 years pro bono, partly because my innate sense of Justice drove me to do so, partly because I have been fighting for equality for gay people for the last 40 years or so, and partly because I could not let this injustice to this client go on and be able to look my two children in the eyes. Both of my kids, who were in college at the time, could not believe that our Government, with its vasts resources, would use those resources to prosecute and convict a U.S. Veteran of simply being who he was. It was simply unfathomable to them and to me. But it really happened. So I set out on a 6 year journey and struggle to obtain a Presidential Pardon for him. Since being gay in the U.S. Army was a Federal offense, only a Presidential Pardon would do. He had been convicted on July 17, 1989, which means he endured 28 years of having the conviction and a dishonorable discharge on his record. This resulted in his being unable to obtain a home mortgage, being limited in potential jobs he would be hired for, being unable to vote, just as some examples of the impact on his life this had.
I will never forget that telephone call on January 17, 2017 from the Department of Justice Pardon Attorney, informing me that President Obama would be granting my client a pardon. What an unbelievable moment! Probably my greatest achievement as a lawyer. And then to call my client and hear his elation on the phone was an incredible moment.
Georgia Tech Recognizes Justice Robert Benham with the Ivan Allen Jr. Prize for Social Courage
On Thursday, Feb. 8, Georgia Tech’s Ivan Allen Jr. Prize for Social Courage will be presented to Retired Justice Robert Benham. There is not a more worthy recipient. I have admired Justice Benham for my entire legal career, spanning 35 years now. I highly recommend you listen to an interview of Justice Benham by University of Georgia Professor Paul Kurtz on Youtube. It is fascinating.
Back in 2013, when I was President of the State Bar of Georgia, I had the distinct honor of giving remarks at the 14th Annual Justice Robert Benham Awards for Community Service. That’s right. The State Bar of Georgia Community Service Awards are aptly named in honor of Justice Benham. In light of Georgia Tech’s wonderful announcement that he will be receiving its Ivan Allen Jr. Prize for Social Courage, I wanted to share again my remarks from that special day in 2013.
Remarks of President Robin Frazer Clark at the 2013 Justice Robert Benham Community Service Awards
Means Restriction for Suicide Attempts Saves Lives
As many of you know, since 2012 when I became President of the State Bar of Georgia and after a dear friend of mine, who was a Past President of the State Bar, killed himself, I made suicide prevention for Georgia Lawyers one of my causes to which I devoted my time and resources to promote. We began with “How to Save a Life,” a suicide prevention program for the Georgia State Bar, which, almost immediately, began saving lives. We reduced the stigma associated with seeking help for mental health matters, especially for lawyers. We increased the number of free mental health visits each Georgia Lawyer receives to six and with the “Use Your Six” campaign. The State Bar created the “Lawyers Living Well” program, thanks largely to the leadership of Lynn Garson, the Chairperson of the Lawyers Assistance Program. Lynn began her “Lawyers Living Well” podcast, through which she and many other wonderful Georgia Lawyers share their stories, including me. I hope you will listen. The Georgia State Bar’s Suicide Prevention Program continues under the extremely capable leadership of Judge Shondeana Morris, and many of us participated in the “Out of the Darkness” walk in Piedmont Park to raise money for the American Foundation for Suicide Prevention (AFSP). I am so proud of the work the State Bar of Georgia has done, and continues to do, to reduce the suicide of Georgia Lawyers and their family members.
As part of this large effort, we have learned a lot. One thing we learned is the concept of “means restriction,” which is to eliminate the means by which someone could kill themselves when you know or suspect that person to be suicidal. This includes guns, drugs, ropes, alcohol, etc. It is important to remove any means of suicide from the surroundings of someone you believe is suicidal. Research has shown that if the means to kill oneself are eliminated and you prevent even that momentary thought of suicide, that person is not likely to resort to suicide again once the idea of it is gone and the means to do it were eliminated. As published in the medical journal Lancet, “[l]imitation of access to lethal methods used for suicide—so-called means restriction—is an important population strategy for suicide prevention. Many empirical studies have shown that such means restriction is effective. Although some individuals might seek other methods, many do not; when they do, the means chosen are less lethal and are associated with fewer deaths than when more dangerous ones are available.”
So I was thrilled to read that the long-awaited means restriction of nets under the Golden Gate Bridge have finally been installed. The effort was sparked over 20 years ago when a young man, Kevin Hines, jumped off the bridge to kill himself, but he survived. He said the second he jumped he regretted it. He said: “Had the net been there, I would have been stopped by the police and gotten the help I needed immediately and never broken my back, never shattered three vertebrae, and never been on this path I was on,” said Hines, now a suicide prevention advocate. “I’m so grateful that a small group of like-minded people never gave up on something so important.” There are other examples of means restrictions, right here in Atlanta. You may recall that I wrote about a project my son, Chastain B. Clark, collaborated on, designed, created and installed at the Georgia Tech Library called “Crosland Chroma,” which is a series of beautiful screens that allow a scenic view of the city but prevent anyone from being able to jump off the library. This photos shows the beautiful means restriction on top of the Tech Library.
The Key to the Courthouse Door: The Critical Role of Contingency Fees in Our Civil Justice System
Often, when there has been a string of trial victories for the plaintiff, the defense bar overreacts and calls for a wholesale change in our Civil Justice System. This often includes a feigned outrage over plaintiff’s attorneys’ contingency fees, as if how a plaintiff’s attorney is paid for their success is the root of all evil in the Civil Justice System (or even any business of the defense attorney or the Court). Some defense attorneys even go as far as calling for an end to all contingency fees for plaintiff’s attorneys, or at least that some very small percentage be used as a cap, as if the Legislature has some authority to intervene in a lawyer’s ability to contract with her client. We know that some of this mock outrage by defense attorneys is all for show for their clients. But it sure gets old. Just see the look on their faces when you suggest that defense lawyers only get paid if they are successful at trial. They will end that discussion pretty quickly.
The constant attack of plaintiff’s lawyers and the contingency fees by which plaintiff’s attorneys are paid makes me think of the critical role contingency fees play in our civil justice system. It is not a stretch to say that without contingency fees, most injured plaintiffs would never be able to bring a case to seek Justice for their injuries. What person who has been seriously injured in a car wreck, for example, who cannot return to work due to those injuries and has no income coming in even to pay for groceries, could possibly afford to hire an attorney and pay him/her an hourly fee to bring a civil case for his injuries? Add to that the fact that the average length of a civil lawsuit now is easily 3-5 years. No individual could possibly continue to pay an attorney an hourly fee for 3-5 years of work to bring a personal injury case for Justice, plus the necessary expenses to bring a case to trial. Enter the contingency fee. A contingency fee allows such an injured individual to hire a good trial lawyer who is willing to bear the risk and expenses of bringing such a personal injury case to trial for the individual. The client owes the attorney a fee only if and when the attorney is successful for the client. It works perfectly.
Yesterday, a Virginia Court pointed out this critical value of a contingency fee in a personal injury case. In determining that a plaintiff’s attorney’s contingency fee of 1/3 of the recovery was reasonable, the Virginia Court noted: “A contingent fee may permissibly be greater than what an hourly fee lawyer of similar qualifications would receive for the same representation.” Restatement (Third) of the Law Governing Lawyers, supra, § 35 cmt. c. That is so because “contingency fee agreements transfer a significant portion of the risk of loss to the attorneys taking a case.” Portsmouth 2175, 298 Va. at 334, 837 S.E.2d 504 (quoting In re Abrams, 605 F.3d 238, 246 (4th Cir. 2010)). “A lawyer might expend considerable effort” only to recover nothing. Id. Or “a lawyer may expend minimal time on a case and obtain a full recovery.” Id. Moncrieffe v. Deno, 0342-22-2, 2023 WL 362445, at 4 (Va. Ct. App. Jan. 24, 2023). The Moncrieffe Court took the opportunity to sing the virtue of contingency fees and their necessity in a fair and smoothly working civil justice system. See generally Restatement (Third) of the Law Governing Lawyers, supra, § 35: “Contingent-fee arrangements perform three valuable functions. First, they enable persons who could not otherwise afford counsel to assert their rights, paying their lawyers only if the assertion succeeds. Second, contingent fees give lawyers an additional incentive to seek their clients’ success and to encourage only those clients with claims having a substantial likelihood of succeeding. Third, such fees enable a client to share the risk of losing with a lawyer, who is usually better able to assess the risk and to bear it by undertaking similar arrangements in other cases (cf. Restatement Second, Agency § 445.” Moncrieffe v. Deno, 0342-22-2, 2023 WL 362445, at 4 (Va. Ct. App. Jan. 24, 2023).
Georgia Supreme Court Rebukes Georgia Attorney General’s Office for Lack of Integrity, Honesty and Professionalism
In what can only be described as a jaw-dropping, scorching opinion, issued on December 20, 2023, the Georgia Supreme Court soundly rebuked the Georgia Attorney General’s Office for lack of integrity in negotiations with the Federal Defender Program regarding when the AG’s office would resume executions of death-sentenced inmates.
Mental Health Emergency? Considering Suicide? Call 988
Ever since I began the Georgia State Bar’s Suicide Prevention Program back in 2012 when I was President of the State Bar of Georgia, I have been advocating for the need for more mental health services provided during an emergency. For longest time, all U.S. citizens have had available to them for an emergency is to call 911. This is, without question, an extremely valuable service to have when you need help from the police or fire department. But is hasn’t also proven helpful when what you have is really a mental health emergency. There have been numerous examples of incidents here in Atlanta in which, in my opinion, had there been a mental health emergency number available instead of just 911, a life would not have been lost.
The police shooting of Scout Schultz, a Georgia Tech student, is a prime example. Scout was a fourth-year computer engineering major with a minor in biomedical engineering at the time of his death. Scout was fatally shot September 16, 2017, after approaching officers with a knife and saying, “Shoot me.” A Georgia Tech officer who had not had mental health training shot Scout, even though Scout was yards away from him and couldn’t possibly hurt the officer with a knife from that distance. The officers needed mental health training on how to deescalate and handle a mental health crisis someone is going through instead of shooting that person. Had we had a 988 available then, perhaps Scout would still be with us. The same can be said for the police shooting of Nygil Cullins, who was having a mental health crisis at Fogo de Chao in Buckhead. Rather than handing it as mental health crisis, as it obviously was, the Atlanta Police shot and killed Mr. Cullins. What is truly sad is that his mother had tried to get emergency transport for her son to a mental health living facility by calling 911 and waited for two hours. She had even called Riverwood Behavioral Health Center ahead of time to make sure they had a bed available, and told 911 dispatchers she would follow police there and fill out the paperwork when they arrived. She said “all you have to do is transport him.” Mr. Cullins waited with his mother for two hours without any help from 911 and, ultimately, left for Fogo de Chao, without mental health intervention. The Atlanta Police, rather than sending a mental health team, sent armed police officer who handled the situation by shooting and killing Mr. Cullins. Another life lost senselessly and one that 988 may have saved.
So I am thrilled that we now have available to us 988 for mental health crises. “If you are willing to turn to someone in your moment of crisis, 988 will be there,” said Xavier Becerra, the secretary of the federal Department of Health and Human Services, at a recent press briefing. “988 won’t be a busy signal, and 988 won’t put you on hold. You will get help.” I pray this is true. The primary goal of the new number is to make it easier for people to call for help. Lawmakers and mental health advocates also see this launch as an opportunity to transform the mental health care system and make care easily accessible everywhere in the United States. The Biden administration has invested more than $400 million in beefing up crisis centers and other mental health services to support the 988 system.
Justice Harris P. Hines: Honoring a Legal Giant and a Gentleman
I recently had the honor of attending the dedication of the portrait of Justice Harris P. Hines and the portrait’s official installation at the Nathan Deal Judicial Center in the Georgia Supreme Court Courtroom. Justice Hines and I were good friends, and his beautiful wife, Helen Hines, remains my good friend. Helen spoke at the dedication and said this about her husband of 46 years:
“Harris will be remembered as a judge and as a justice who loved people, and served the citizens of Georgia. He will be remembered for how he touched the lives of others, traveling throughout the state for over four decades. He spoke to civic clubs and legal groups, delivered introductions and invocations, taught continuing legal education courses, judged mock trials and debates, moderated panel discussions, counseled anyone who sought his guidance or advice — greeting people with sincerity and warmth. He never seemed to tire of talking — I’m on stop right there. He never seemed to tire of talking — to them, and inquiring about their lives and their families. He cared about individuals and treated them all with respect and fairness. Hard work, courtesy, integrity and kindness are the real legacy Harris leaves,” she concluded.
Chief Justice David Nahmias spoke. Former Chief Justice Harold Melton (now private lawyer) spoke and said this about Justice Hines: “Everybody here knew and loved Justice Hines, and everybody has the same impression of him and of his kindness,” said Troutman Pepper Hamilton Sanders partner Harold Melton, who succeeded Hines as chief justice and was his close friend, though they were 23 years apart in age. But Melton said for this occasion he wanted to remember Hines as a lawyer. “It’s appropriate that we also talk about his legal legacy and his commitment to the fidelity of the law, how painstakingly he pored over the law and how determined he was to get it right,” Melton said.
Farewell to My Friend, Georgia Lawyer Ebb Oakley
How to Save a Life~1-800-273-8255
I rea
d with great interest a recent report from the U.S. National Suicide Prevention Lifeline that showed a reduction in suicides attributable largely to a song by music artist Logic. That song’s title is “1-800-273-8255,” the hotline number for the suicide prevention lifeline. As a result of this song, number of calls to the lifeline were up while numbers of suicides were down. The correlation to the song was proven by tracking these numbers during three time periods: the first 34 days after the song’s release, Logic’s performance at the 2017 MTV awards and an additional widely promoted performance at the 2018 Grammy Awards. “1-800-273-8255” is a beautiful song, and if you are not familiar with it, I urge you to take three minutes out now and listen to it. It starts with a young person saying he doesn’t want to live anymore, that he just wants to die. Then other voices enter the song and essentially talk to the young person and stay with him until the feeling he needs to die by suicide passes. Finally, the young person sings:
I finally wanna be alive, I finally wanna be alive
I don’t wanna die today, I don’t wanna die
