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Thou Shalt Not Discourage: An FMLA Cautionary Tale for Employers

Posted By Joette Melendez, Tuesday, December 19, 2017

The Eleventh Circuit Court of Appeals recently vacated a district court’s summary judgment order on the basis that a jury could find that the defendant employer interfered with the plaintiff employee’s rights under the Family Medical Leave Act (FMLA) when its Human Resources (HR) Manager sent the plaintiff an email discouraging her from taking her full leave entitlement under the FMLA. See Diamond v. Hospice of Fla. Keys, Inc., 677 Fed. Appx. 586 (11th Cir. 2017). 


In Diamond, the plaintiff, worked as a social worker for the defendant, Hospice of Florida Keys, Inc. Throughout plaintiff’s employment with the defendant, the plaintiff took intermittent leave under the FMLA to care for her parents who had serious medical conditions. In March and April of 2014, the plaintiff took almost two weeks of leave to care for her ailing mother. In April 2014, the defendant’s HR Manager sent the plaintiff an email stating that the plaintiff’s “continued unpaid time away from the workplace compromises the quality of care [the defendant is] able to provide as an organization.” See Diamond, 677 Fed. Appx. 586, 590. For fear of losing her job, the plaintiff decided to forego using all of her approved FMLA leave. Nonetheless, in May 2014, the defendant terminated the plaintiff.


To establish an interference claim under the FMLA, the plaintiff had to prove that she was (1) denied a benefit to which she was entitled, and that (2) she suffered harm as a result. Under the FMLA, “benefits” include taking up to 12 weeks of leave in a single 12-month period and being reinstated after taking such leave. Refusing to authorize leave to an eligible employee or merely “discouraging” an eligible employee from using such leave constitutes interference under the FMLA. See 29 CFR 825.220(b). Under the FMLA, harm can include “any monetary losses” incurred by an employee because of her employer’s violation of the FMLA. 


The Court held that a reasonable jury could find that the defendant discouraged plaintiff from taking FMLA when it sent her an email essentially warning her that taking additional FMLA leave could jeopardize her job. The Court also held that there were sufficient facts in the record for a jury to find that the plaintiff suffered harm. Specifically, the plaintiff testified that she would have taken more FMLA leave had the defendant not discouraged her from doing so, and thatshe incurred additional travel costs by making turn-around trips to her mother’s home instead of staying for an entire month as recommended by her mother’s doctor.


In short, this decision is a cautionary tale for employers on what not to say to employees who request leave under the FMLA. 


This content was written by one of our panel members, Louise Smith, an attorney in Dacula, Georgia.


***If you or someone you know is faced with labor law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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Protecting the Elderly: Key Warning Signs of Financial Exploitation

Posted By Joette Melendez, Monday, October 2, 2017

Thousands of Georgia families have made the extremely difficult decision to place their aging parents, grandparents or other loved ones in nursing homes or assisted living facilities. We trust these facilities to take care of our relatives and make sure their needs are met. That’s why it’s so devastating when they turn out to be negligent, or worse, perpetrators of abuse.


While it doesn’t get a lot of media attention, the most common form of elder abuse isn’t physical, sexual or emotional – it’s financial exploitation. Nationwide, it’s a billion-dollar problem. And the perpetrators, far too often, get away with it – only a tiny fraction of cases of financial exploitation are reported.


If you have an elderly loved one in a long-term care facility, you need to be their strongest advocate and watch out for any signs of financial abuse. Here’s what you need to look for:


• Sudden changes in estate planning documents. This might include a change in your loved one’s Last Will and Testament or a related document. Financial exploitation often comes relatively late in the estate planning process, with an abrupt – and suspicious – departure from a long-standing plan.

• Inconsistencies in documentation. Make sure you’re carefully reviewing your loved one’s financial documents, such as billing statements, and cross-referencing them with other documents such as treatment notes. Discrepancies may point to double-billing or billing for services not rendered.

• Reluctance to communicate. If your loved one previously was happy to talk about financial matters with you and has recently become withdrawn or evasive, that’s a significant red flag. They may know something is wrong.

• Isolation. This is a red flag for any sort of abuse, and financial exploitation is no exception. While the nursing home may have legitimate reasons to limit calls or visits, if you find that you’re unreasonably isolated from your loved one, the nursing home may be trying to hide signs of exploitation.

• Unexplained transfers or withdrawals. This is one of the clearest warning signs of financial abuse. If your loved one’s assets are actually being taken by another person, you need to take immediate action.


Now, there are possible legitimate explanations for anything that may look like a warning sign of financial exploitation. If you have reason to suspect that your loved one may be a victim, don’t panic. Call an attorney with experience handling nursing home negligence cases and explain your concerns. Your attorney can investigate and get to the bottom of the situation.


If nothing else, you’ll get the invaluable peace of mind that comes from knowing the truth. And if your loved one has been exploited, an attorney can help you put a stop to it – and fight for the compensation you need to get your loved one’s life back on track.


This content was written by one of our panel members, George Johnson, an attorney in Decatur, Georgia.


***If you or someone you know is faced with elder law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***


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ADA Basics: When Does An Employee Have a Disability Discrimination Claim?

Posted By Joette Melendez, Wednesday, September 13, 2017

In 2008, Congress amended the Americans with Disabilities Act, 42 U.S.C. §12101 et seq., (ADA) to broaden protections against disability discrimination. As a result many employees who may not consider themselves to be disabled or whose employers may not regard them as disabled may have disability discrimination claims under the ADA.


The ADA, as amended, defines disability discrimination to include: 1) discrimination on the basis of a current disability or 2) a record of disability, 3) the failure to reasonably accommodate an individual with a known disability or record of disability --or discrimination because of the need for accommodation, 4) discrimination because one is “regarded as” having a disability—which does not mean what you think (more below), 5) discrimination because of the disability of an individual with whom the employee has a relationship or association, 6) making an impermissible medical examination or inquiry or failing to maintain the confidentiality of permissible medical inquiries; and 7) participating in a contractual relationship that has the effect of discriminating on the basis of disability.


Discrimination on the basis of a current or actual “disability” means – taking adverse action against employees who have a mental or physical impairment that “substantially limits” them in a major life activity or major bodily function as compared to most people in the general population. Under the 2008 amendments to the ADA, which broadened the scope of the law, substantially limited is not meant to be a demanding standard. For example, a broken ankle that substantially limits someone in the major life activity of walking may be a disability under the ADA.


Whether an impairment substantially limits an employee is evaluated without the use of mitigating measures such as medication or physical therapy (, or crutches). This means, for example, that even if an employee is not substantially limited in a major life activity if she takes her medicine, if without her medicine she would be substantially limited, she has a disability under the ADA. In addition, substantial limitation for episodic conditions such as epilepsy, bipolar/depressive disorder, ulcerative colitis, multiple sclerosis, migraines and asthma—to name just a few, is evaluated as of when the condition flares up or is active, not when it is in remission or under control.


A “record of disability” under the ADA, simply means a history of having a disability.


An employer covered by the ADA (with 15 or more employees in 20 calendar weeks of the current or preceding calendar year) must reasonably accommodate otherwise qualified employees who have a known “disability” or a “record of disability” in a manner that would enable them to perform the essential functions of their position, unless to do so would pose an undue hardship on the employer or its operations. In most cases it is the employee’s responsibility to make known to an employer that they need help – though no magic words are required. An accommodation will be deemed “reasonable” if it is plausible on its face or seems reasonable in the run of cases. 


Reasonable accommodations can include reallocating (or eliminating) the marginal or non-essential functions of a position, providing assistive devices or technology or alternative methods to enable an employee to complete essential functions, providing qualified readers or interpreters, or granting a reasonable period of leave to allow treatment, follow-up treatment, medication adjustment and/or recovery from an episodic flare-up or a new substantially limiting impairment. Reasonable accommodation may also include transfer to a vacant position at the same level or below for which an employee is qualified. 


An employer violates the ADA not only when it fails to reasonably accommodate a disability or record of disability, but also when it takes adverse action against an employee because of his actual or suspected need for reasonable accommodation. 


An employer may have a defense against a claim of damages due to a failure to reasonably accommodate if it engages in good faith in an interactive process with the employee in an attempt to identify a reasonable accommodation.


“Regarded as” disability was also redefined in 2008 to broaden the scope of this antidiscrimination provision. An employer does not have to actually regard an employee as having a disability, nor does an employee’s impairment need to actually be or be perceived as being substantially limiting, for the ADA to protect an employee from discrimination. Employees are “regarded as” having a disability if their employer takes an adverse action against them because of an actual or perceived physical or mental impairment, whether or not this condition is substantially limiting. 


This means, for example, if an employee is fired because of a permanent limp that does not substantially limit their ability to do anything – but that the employer thinks reflects badly on the fitness of its employees, that employee will have been fired because of a “regarded as” disability – an impairment that resulted in an adverse action against him. 


While employers must reasonably accommodate an employee with a substantially limiting impairment or a record of such impairment —that is a “disability” or “record of disability,” they do not have to accommodate an employee who meets only the “regarded as” definition of disability. An employer also has a defense against a “regarded as” claim if the employee’s impairment is both “transitory” (lasting 6 months or less) and “minor” (which is not defined by the statute.) Note, however, that according to EEOC regulations an actual “disability” may be substantially limiting and require reasonable accommodation, even if it lasts less than 6 months.


In addition to prohibiting discrimination on the basis of an employee’s own disability, the ADA also forbids discrimination against an employee because of their association with an individual with a disability. These issues frequently arise when an employer presumes that the disability of a relative or significant other will result in additional expenses for the employer, when the associate of the employee has a contagious disease or condition that results in fear of infection or stigma, or when the employer fears that the disability of a loved one will result in absence from work.


Note, that although an employer may not discriminate against an employee because of their association with a person with a disability, employers are not required to reasonably accommodate an employee because of the disability of a family member or close associate. So, employees are not entitled to medical leave under the ADA to care for a family member with a disability (although they may be entitled to such leave under the Family and Medical Leave Act.) 


The ADA also provides protection for the privacy rights of employees. An employer is not allowed to make pre-offer medical inquiries of applicants for employment, whether or not the applicant has a disability. Once an offer is extended such inquiries may be made only if they are made of all employees in that type of position regardless of disability. An employer can use this information to disqualify an applicant with a disability only if the reason is job related and consistent with business necessity. Likewise, an employer cannot make medical inquiries of current employees unless the inquiry is job related and consistent with business necessity. These criteria may be met when such information is needed to evaluate a request for reasonable accommodation, or to determine the fitness for duty of an employee whose performance has declined in a manner that indicates that a medical evaluation is needed. 


If an employee is required to provide the employer with confidential medical information in order to support their request for reasonable accommodation (or a request for medical leave under the Family and Medical Leave Act) or to submit to a fitness for duty exam, the employer must retain the employee’s medical information in confidence and may disclose it only to managers (and first aid emergency personnel) with the need to know. If the employer discloses this confidential information to others the employee may recover for any damages that result, including damages for emotional distress.


An employer also may conduct “voluntary” medical examinations that are part of employee health programs. However, a recent decision brings into question whether an employer’s payment of up to 30% of health insurance premiums for participation in such programs may make such participation involuntary. 


Finally, employers may be held responsible for disability discrimination by those with whom they contract, for example, staffing agencies who impose impermissible qualification standards on applicants with disabilities, or third party administrators – who discriminate on the basis of disability in administering benefits, except on the basis of permissible underwriting criteria. Thus, if an employee is denied a reasonable accommodation by a third-party administrator, an employer may be held responsible for this violation of the ADA. 


Lisa B. Golan has over 30 years of experience in advising employers and employees on their rights under federal law and speaks and writes extensively on claims under the Americans with Disabilities Act and the Family and Medical Leave Act. She may be reached at 770-409-7922 or at


This content was written by one of our panel members, Lisa Golan, an attorney in Atlanta, Georgia.

***If you or someone you know is faced with ADA employment discrimination issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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A General Scope for Social Security Eligibility.

Posted By Joette Melendez, Tuesday, August 22, 2017

A person may become unable to work for many different reasons. He or she may, for example, develop a form of cancer, or lose a limb to diabetes, or develop a blockage resulting in a heart attack. The physical manifestations are often obvious. There may also, however, be mental or psychological impairments that one cannot physically see that plague a person the most. These symptoms may be brought on by emotional trauma as well as physical, and may result in post-traumatic stress disorder, for example. Sometimes, psychological conditions such as severe depression and anxiety may develop as the result of the continued effects of physical injuries such as pain. Unfortunately, these conditions may not be as easily recognized, diagnosed, or treated as quickly and effectively as physical problems may be. 


To determine whether or not a person is disabled because of a mental impairment, Social Security considers how a person’s functional limitations may preclude work. To be eligible for Social Security disability based on a mental or psychological impairment, a person must demonstrate one of the following: first, that his or her psychological condition(s) meets or equals one of the “listed” impairments outlined by the Social Security Administration (SSA listing 12.00 Mental Disorders – Adult) or second, that his functional limitations result in a “residual functional capacity” that would preclude work. To satisfy these requirements, SSA looks to medical evidence, including opinions from treating medical providers, and testimony from the claimant, among other information. 


The requirements for meeting or equaling a listed impairment are very specific. Some of these general conditions include: neurocognitive disorders; schizophrenia; depression; bipolar; intellectual disorders; anxiety; obsessive-compulsive disorders; and trauma- and stressor- related disorders. If a person’s condition(s) meets or equals the requirements of one of these listings, and the durational component is met, he should be awarded disability. 


If a person can’t prove that his mental impairment meets or equals the requirements of a listing, he may also establish the degree of his disability through his “residual functional capacity” or “RFC.” Here, he demonstrates how his functionally impaired abilities would preclude his ability to perform certain work activities. Some abilities SSA may consider in determining an RFC include: the ability to relate and respond appropriately to people in a work setting; the ability to attend meetings; the ability to work around the home; the ability to socialize with friends and neighbors; the ability to care for personal needs; the ability to understand, carry out and remember instructions; the ability to maintain attention/concentration; the ability to respond appropriately to supervision; the ability to function independently to complete tasks; the ability to respond to customary work pressures; the ability to demonstrate reliability; and the ability to maintain persistence and pace. SSA considers, alone or together, whether the total of such limitations would preclude work. For example, perhaps a person’s symptoms cause him to be “off-task” for 15% or more of the work day. Or, maybe a person’s symptoms would cause him to be consistently late to work, need to leave early from work, or to miss more than one day of work per month. Such limitations would most likely preclude work. 


Counsel should keep in mind the importance of psychological or mental impairments, as well as physical components of a disability, to determine the true cause and limiting effects of a person’s conditions. He or she should fully bring into focus the participation of each and the weight that each must be afforded.


This content was written by one of our panel members, Allison Affleck, an attorney in Atlanta, Georgia.

***If you or someone you know is faced with social security issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***


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Employment Law 101: What is a “Wrongful Termination?

Posted By Joette Melendez, Thursday, July 20, 2017

Call it what you will—layoff, reduction in force, downsizing, headcount reduction—the global economic situation has resulted in more job losses and unemployment than the United States has seen in generations.  As an employment lawyer, I am asked on a daily basis how one can determine whether he/she has a claim for “wrongful termination.”  


At-will Employment


You may be aware that Georgia, like almost all states, is an “at-will” employment state.  At-will employment means that, unless you have an employment agreement for a specified term providing that you can only be terminated for “cause,” you can be terminated for any reason or no reason at all, so long as no law is violated.  Your employer does not need to justify its actions, utilize progressive discipline, or allow you an opportunity to present your side of the story.  In other words, it is not illegal for an employer to be unfair or wrong when it fires an “at-will” employee.  


The Exceptions


The main exception is where the termination decision was based on the employee’s race, color, gender, age, religion, national origin, pregnancy, disability or veteran status.  If you can show that you were treated less favorably than other similarly-situated employees outside of your “protected class,” you may have a claim for unlawful discrimination.  


Another exception is where you have complained to your employer about discrimination or some other unlawful act, or filed or participated in a discrimination claim, and your employer terminates you in retaliation for these activities.  


If you are a union member or a government employee, you may have additional rights.


Do I Have a Case?


So, what if you believe that the decision to lay you off was based on your race, color, gender, age, etc.?  To successfully pursue a claim for discriminatory discharge, you must have evidence that the decision was based on your membership in one or more of these protected classes.  Certainly, it can be harder to prove that your termination was discriminatory or retaliatory when many others are suffering the same fate as you are.  But ask yourself this:  was the layoff legitimately based upon financial reasons, and if so, why were you chosen?  If you were chosen for layoff over someone outside of your protected class who was less qualified, then you may have a viable claim.  Comments or jokes evidencing bias against certain workers can often be circumstantial evidence of discrimination.  For example, comments by a decision-maker about wanting to have a more “youthful, aggressive sales team” may be evidence of age discrimination.  Jokes about a Pakistani employee’s accent may be evidence of national origin-based discrimination.


In addition, a reduction in force that is based on non-discriminatory factors (e.g., cost-cutting) may be unlawful if it has a discriminatory impact on a protected class.  For example, a plan that focuses on eliminating higher paying positions may have a disparate impact on older workers since they tend to earn more than younger workers.


The biggest part of any case is discovery—the process in which either party can request documents and information from the other side to prove their case or mount their defense.  Once it appears that an employment dispute is likely to lead to litigation, the employer is obligated to preserve all relevant documents (including emails, computer files, Blackberry data, etc.) that may become discoverable in the case.  Emails tend to be a treasure trove of helpful evidence in employment cases.  People who wouldn’t dream of committing certain thoughts, opinions, or feelings to paper think nothing of firing off a quick email with those same sentiments.


What Should I Do To Pursue It?


If you have not yet been laid off, but believe that you will be, this would be an excellent time to consult with an attorney specializing in employment law.  Your attorney may be able to help you avoid layoff by having your employer consider you for a transfer within the organization, or help position you to negotiate for a favorable severance package in the event that you are terminated.  If you have already been terminated and you believe the decision was discriminatory or retaliatory, it is also a good idea to consult with an employment law attorney.  Your attorney can negotiate with your former employer on your behalf or present a strong case to the Equal Employment Opportunity Commission—the federal agency that investigates employment discrimination claims—and, if necessary, file a lawsuit on your behalf.


Greg Fidlon has over eleven years of experience representing employers and employees in individual and class action litigation, and advising clients on all aspects of the employment relationship.  He can be reached at or 770-807-0083.


This content was written by one of our panel members, Gregory Fidlon, an attorney in Atlanta, Georgia.

***If you or someone you know is faced with labor issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***


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No Joke. Hiring Policies that have a Discriminatory Impact on Older Job Seekers Are Lawful

Posted By Joette Melendez, Wednesday, July 19, 2017

The Eleventh Circuit Court of Appeals, sitting en banc, recently affirmed a district court’s dismissal of a plaintiff’s disparate impact claim under the Age Discrimination in Employment Act (“ADEA”) because the plaintiff was a job applicant, not an employee. See Villarreal v. R.J. Reynolds Tobacco Co., 2016 U.S. App. LEXIS 18074, *27 (Oct. 5, 2016). 


The plaintiff, who was over the age of 40, alleged that a prospective employer used “resume review guidelines” that had a disproportionately negative impact on applicants over the age of 40. The guidelines told hiring managers to target applicants who were a few years out of college and to avoid applicants with more than eight years of experience. As a result of these guidelines, only 19 of the 1,024 job applicants hired between September 2007 and July 2010 were over the age of 40. 


Section 4(a)(1) of the ADEA focuses on the employer’s motive and applies to disparate treatment claims (i.e., intentional discrimination). It makes it unlawful for an employer “to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age.” By contrast, Section 4(a)(2) of the ADEA focuses on conduct and applies to disparate impact claims (i.e., policies and practices that appear neutral, but which result in a disproportionate impact on protected groups). It makes it unlawful for an employer to “limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age.”


In Villarreal, the prospective employer argued that the term “his employees” in Section 4(a)(2) referred to current employees, and that the subsequent use of the term “any individual” in that Section referred to those current employees. On the other hand, the plaintiff argued that Section 4(a)(2) precludes prospective employers from “limiting” their “employees” (e.g. hiring managers) in a way that would deprive or tend to deprive “any individual” like the plaintiff of a job because of his age. 


On November 30, 2015, the Eleventh Circuit Court of Appeals in a 2-1 decision found both readings plausible. Given the ambiguity in the statutory language, the Eleventh Circuit deferred to the reasonable interpretation of the Equal Employment Opportunity Commission (“EEOC”). According to the EEOC, Section 4(a)(2) protects both current employees and job applicants. The Eleventh Circuit reversed the district court’s decision, but the prospective employer successfully petitioned for a rehearing en banc. The second time around, the Eleventh Circuit refused to defer to the EEOC and found that the statutory language in Section 4(a)(2) was not ambiguous. The Eleventh Circuit held that Section 4(a)(2) clearly protects employees, not job applicants, and affirmed the district court’s dismissal of the plaintiff’s failure to hire disparate impact claim. 


The implications of this decisions are deeply troubling for Plaintiffs’ employment lawyers and all of those individuals within the protected class (which will include everyone at some point). In light of this decision, there is no recourse against companies with hiring policies and practices that have the effect of eliminating job seekers over the age of 40 disproportionately.


This content was written by one of our panel members, Louise Smith, an attorney in Dacula, Georgia.


***If you or someone you know is faced with labor law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***


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Three’s a crowd: The triplets of protecting your intellectual property

Posted By Joette Melendez, Tuesday, July 18, 2017

Trademarks, copyrights, patents. We hear these terms all the time and have heard more than once how important intellectual property is. But what is it and how is it protected? For the non-IP lawyer, these terms can seem confusing. Clients often ask how to “patent a logo” or “copyright an idea” but those terms are incorrect. After reading this post, you will see how most creations falls into one of these three categories. That way, you can have a more informed conversation with your client and help to answer some of her questions.




A trademark is form of intellectual property protection that applies to words, design marks (commonly known as logos), or symbols. The purpose of a trademark is to help a customer identify the source of a particular good or service. Trademarks are registered through the application process with the United States Patent and Trademark Office. You can recognize a trademark by the tiny "TM" or "R" symbol under a mark, usually located on the lower right. The use of "TM" means that the trademark has not yet been registered with the United States Patent and Trademark Office. The use of the "R" symbol indicates that the owner of the mark has a trademark registration. Some examples of famous trademarks are Nike, Chanel, UPS, and Coca-Cola. 




A copyright is a form of intellectual property protection that applies to original works of authorship such as books, songs, movies, photographs, and computer software. Copyright owners have six exclusive rights in relation to their copyrighted work. These include the right to reproduce the work, prepare derivative works, distribute copies of the work, perform the work publicly (as applicable), display the work publicly (as applicable), and publicly perform the work by means of digital audio transmission (as applicable). Copyrights are registered through the application process with the United States Copyright Office. 


You can recognize a copyright by the tiny "C" symbol located somewhere on the work of authorship. Copyright protection begins the moment the work is "fixed in a tangible medium", which means it was written, recorded, videotaped, etc. Copyright registration with the United States Copyright Office offers additional protections beyond the rights the author has by simply creating the work. 




A patent is a form of intellectual property protection that applies to inventions. Ownership of a patent registration provides the inventor the right to exclude anyone else from making, using, offering for sale, or selling the invention. The inventor also has the right to exclude others from importing the invention into the United States for a limited time in exchange for public disclosure of the invention when the patent is granted. Patents are registered through the application process with the United States Patent and Trademark Office.


I hope this summary has been helpful. Please feel free to contact us with any intellectual property questions at


This content was written by one of our panel members, Sonia Lakhany, an attorney in Atlanta, Georgia.


***If you or someone you know is faced with intellectual property issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***



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Criminal History & Expungments

Posted By Joette Melendez, Tuesday, July 18, 2017



That is a promise a lot of people make to themselves on New Year’s Day. As you try to improve yourself, one thing holding many people back is their criminal history. You vow to get better job, go back to school, or move to a different area, but you may feel like a past brush with the law prevents you from moving forward. Although Georgia is one of the strictest states in the country as it relates expungement, there are several ways in Georgia to get past a spotted criminal history. 


The most common roadblocks on one’s criminal history are arrests with no convictions. Generally, if you were arrested for an offense, but you were never convicted, you can have this arrest removed from your criminal history. This applies to both felony and misdemeanor charges. The case may have been dismissed because you completed a pre-trial diversion program, or the victim did not want to press charges, or because the prosecutor decided there was not enough evidence to prove the case against you. Whatever the reason, most arrests that do not end with convictions can be removed from your criminal history.1 If the arrest occurred before July 1, 2013, you must apply to have this arrest removed. If the arrested occurred after July 1, 2013, the Georgia Criminal Information Center (the agency that maintains criminal history records in Georgia) will automatically remove the arrest within 30 days of the dismissal without you having to submit a separate application. 


Even if you were arrested AND convicted of an offense, all hope is not lost. You may still be able to have the conviction removed from your criminal history depending on the severity of the charge, your age, and how much time has passed since the conviction. 


First, let’s talk about misdemeanor convictions. If you were convicted of a misdemeanor offense before you turned 21, you are considered to be a youthful offender and you can file a petition to have that convicted removed from your criminal history. This applies to most misdemeanor offenses like shoplifting, possession of marijuana, battery, assault, and obstruction, just to name a few. However convictions for DUI and any misdemeanor offense that is sexual in nature (i.e., pandering or sexual battery) cannot be removed, no matter how old you were at the time of conviction. Also, to qualify you must have successfully completed your misdemeanor sentence and have no arrests (other than arrests for non-serious traffic offense) for the five years after completing your sentence. 


Now, let’s tackle the most difficult obstacle to overcome on your criminal history; a felony conviction. Felony convictions in Georgia may be restricted on your criminal history only under very extraordinary circumstances. Currently, the only remedy available to you is to apply for retroactive first offender treatment for your felony conviction under a fairly new law. Although it may only help a few Georgians, in 2015, the legislature passed a law that allowed for retroactive first offender treatment. If you were convicted and sentenced for a felony, and you could have been sentenced as a first offender at the time, but it was not offered to you, you can NOW apply to use first offender treatment on that old case; even if that case is decades old. In essence, the judge goes back and grants you a privilege that you  could and should have taken advantage of initially. The application ultimately requires approval from both the prosecutor and a judge, but if it is granted, it will clear a felony conviction from your record. 


 1 There a few uncommon situations where your charges may be dismissed, but the arrest is still not eligible to be removed. These can be found at O.C.G.A. § 35-3-37(i)(1)-(3)


If you are not eligible for retroactive first offender treatment and your felony conviction cannot be cleared from your record, you should apply for a pardon. A pardon can help erase the stigma that a felony conviction brings to your life. A pardon does not clear or erase a felony conviction from your record, but a pardon is a notation on your record that the State of Georgia has pardoned or officially forgiven you for that offense. To qualify for a pardon, you must have completed your sentence at least five years before applying, and you must have lived a law-abiding life during the five years prior to applying. If a potential employer searches your criminal history, a pardoned offense will still show, but there will be a notation that the State of Georgia has pardoned you, which may go a long way with many businesses and entities in proving that you are a new you. 


It’s important to note that none of the relief laid out above applies to federal offenses or to cases that occurred outside of Georgia. 


Finally, I want to make sure you know what record restriction and expungement means in Georgia. Many people believe that parts of their criminal record can be completely deleted or sealed. While that may be true in other States, in Georgia the best that someone with a criminal record can achieve is to have parts of that record “restricted.” If you are able to take advantage of any of the remedies laid out in this article, and parts or all of your criminal history become restricted, it is not literally wiped away clean. Those portions of your criminal history that have been restricted will no longer be seen by the public, including most employers, agencies, and organizations. However, criminal records that have been restricted can still be accessed by law enforcement agencies (police departments, probation officers, FBI, etc.) for criminal justice purposes only. My use of the terms “erase”, “remove” and “clear” throughout this piece all refer to restriction as it is known in Georgia. 


This content was written by one of our panel members, Laila Kelly, an attorney in Decatur, Georgia.



***If you or someone you know is faced with criminal law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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Family Law Survival Kit: “Do I have to pay child support?

Posted By Joette Melendez, Friday, June 30, 2017

Many people, upon hearing you are a lawyer, ask a family law question. One of the most common is “Do I have to pay child support?” Generally, if your former husband/wife/significant other/one night stand is suing for child support and you do not have primary custody, you will be liable for child support.


Determining Child Support 


Effective January 1, 2007, the income shares model takes into account the income of both parents when determining a child support amount. The income shares calculator is found at If a client pays health insurance premiums for the child(ren) and work related child care, it will be taken into account when establishing a final child support order. O.C.G.A. §19-6-15(h). So, assuming the non-custodial parent is asking the question: “Do I have to pay child support?”; the answer is probably…Yes. However, if the non-custodial parent is willing to pay health insurance or work related child care, it will lower his/her child support obligation. 




Deviations from the presumptive amount of child support are possible if the required findings of fact are made by the court. O.C.G.A. §19-5-15(i). Deviations can also increase or decrease a child support amount. Deviations include high and low income, insurance and tax credit, travel expenses, alimony, mortgage, permanency/foster care plan, extraordinary expenses, parenting time, social security benefits, split parenting, uninsured health care expenses, and agreement. O.C.G.A. §19-5-15(i)(2). Paying private school tuition and extracurricular activities may also lower a parent’s child support obligation. Lawyers should ask clients to communicate their expenses to determine if the client can lower his/her child support obligation. A common misconception parents have is that the custodial parent can waive child support. That is not true. The right of child support belongs to the child and parents cannot give away their child(ren)’s right to child support. While the parties can always agree to a higher or lower amount than the calculator generated presumptive amount, there are no guarantees the judge will accept the parties’ agreement. 


Now that you know the answer to one of the most common family law questions, you can handle those distant acquaintances and late night relative calls with a little more confidence. Make sure to give them my number, however, just in case.


Fatima Harris, Esq. has over ten years of experience in representing men, women and children in divorce, custody, dependency and other family law issues. She can be reached at or 678-465-8645.


***If you or someone you know is faced with family law issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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10 Things Estate Planning Can Do for You

Posted By Joette Melendez, Thursday, June 29, 2017

Admittedly, planning for your death is not a fun topic. It is, however, an important part of having a completely sound financial plan and, more importantly, the most unselfish decisions you can ever make in your entire life. That is not hyperbole, it’s a fact. By obtaining wills, advance medical directives, and durable/financial powers of attorney the only people who are likely to see the benefit of those efforts are those you care about. By taking the time and effort necessary to plan your estate, you will be able to:


Provide for your immediate family


Couples want to provide enough money for the surviving spouse. Couples with children want to assure their education and upbringing. If you have children under 18, both you and your spouse should have a will nominating personal guardians for the children, in case you both should die before they grow up. Otherwise, a court will decide without your input where your kids will live and who will make important decisions about their money, education, and way of life.


Get your property to beneficiaries quickly


Options include insurance paid directly to beneficiaries, joint tenancy, and living trusts, as well as using simplified or expedited probate and taking advantage of laws that provide partial payments to beneficiaries while a will is in probate. Without an estate plan, potential beneficiaries may bicker and argue about who is entitled to what, often at the expense of the estate itself. It is an unfortunate situation when competing interests obtain attorneys who are paid by the estate itself, and, at the end of the day, the beneficiaries exhausted significant estate assets in legal fees. 


Plan for incapacity


During estate planning, you can also plan for possible mental or physical incapacity. Georgia uses what is called an advance medical directive to address one’s living will and health care agents. This document enables you to decide in advance about life support should you be in a permanent vegetative state or critical condition, and pick someone to make decisions for you about medical treatment. The durable/financial power of attorney permits an agent to act on your behalf should you lack capacity to do so. Unfortunately, people often do not realize just how important this document is until it is too late.  


Minimize expenses


Good estate planning can keep the cost of transferring property to beneficiaries as low as possible, leaving more money for your beneficiaries.


Choose executors/trustees for your estate


Choosing competent executors/trustees and giving them the necessary authority will save money, reduce the burden on your survivors, and simplify administration of your estate. It will also reduce the likelihood that an uninterested third-party would need to be hired, which would further drain estate assets. 


Ease the strain on your family


You can take a burden from your grieving survivors and plan your funeral arrangements when planning your estate. Or you may want to simply limit the expense of your burial or designate its place. Perhaps you want to be cremated instead of buried? It is much easier to have this decision made prior to passing rather than have grieving family members be forced to make the decision after the fact. 


Help a favorite cause 


Your estate plan can help support religious, educational, and other charitable causes, either during your lifetime or upon your death, and at the same time take advantage of tax laws designed to encourage private philanthropy. Charitable entities also do not typically expire, so it is beneficial to name one in case all other beneficiaries named are no longer alive. 


Reduce taxes on your estate


Every dollar your estate has to pay in estate or inheritance taxes is a dollar that your beneficiaries won't get. A good estate plan can give the maximum allowed by law to your beneficiaries and the minimum to the government. Creating tax incentive estate plans is a complex tasks that often involves trusts or other asset protection vehicles. 


Provide for people who need help and guidance


Do you have an elderly parent or disabled child, or a grandchild whose education you want to assure? You could establish a special trust fund for family members who need support that you won't be there to provide. There are tax incentives in doing so, and, more importantly, peace of mind knowing those you care about are receiving care after your death.


Make sure your business continues smoothly


If you have a small business, you can provide for an orderly succession and continuation of its affairs by spelling out what will happen to your interest in the business. This is key for small businesses with several members who each have a divested interest.


The above-referenced points are merely some of the reasons to make the unselfish decision to create an estate plan.


This content was written by one of our panel members, Patrick William Lee, an attorney in Atlanta, Georgia.


***If you or someone you know is faced with probate issues, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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