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Administering Assets for the Care of Incapacitated Adults

Posted By James Jones, Thursday, May 26, 2016

Many individuals suffer from varying degrees of cognitive dysfunction during their later years. One avenue to address this is a court appointed conservatorship. This is time-consuming, cumbersome, and unnecessarily expensive. It should be a last resort.  A Probate Court has discretion over appointment of a conservator regardless of who petitions the court for a conservatorship or whom the petitioner requests as conservator.


The court is to consider the list of preferred conservators provided by law. Although a family member is listed first, he or she may not to be named for many reasons, particularly if there is a conflict of interest. Something as simple as the requested conservator and the ward having a joint bank account can disqualify the conservator named in the petition.  The court may move down the list of preferred individuals to a court-appointed attorney with whom the court may have a pre-existing relationship. Georgia Law permits the conservator to collect annual fees up to six percent or more from a ward’s funds.


Conservators who are attorneys can also bill for legal services they provide on behalf of the ward. Moreover, the sale of assets to produce liquidity to meet expenses of the ward requires court approval resulting in more time and expense. This can prove particularly cumbersome when the ward’s real estate is the subject of the sale. It can result in extensive delays that may be unacceptable to the buyer and generate additional fees to the conservator. The conservator, if not covered by the court’s blanket bond, must purchase a bond to protect the value of the ward’s funds for all but the ward’s real property. Conservators must also maintain meticulous records of income and expenditures to report to the court at least annually, or more often if the court so directs.


Powers-of-attorney, once a practical tool to manage an incapacitated adult’s personal financial affairs, may not be effective. Financial institutions occasionally refuse to accept the document because the principal could have revoked the authority of the attorney-in-fact without the institution’s knowledge leaving the institution with ultimate liability if the agent commits a fraudulent transaction.


A solution to this is to use the institution’s form to name a trusted individual to sign checks drawn on the account for the benefit of the account holder. It is never a good idea to establish a joint account for convenience of paying the impaired individual’s expenses unless it is intended that the surviving person have the proceeds of the account upon the death of the other account holder. The law books are filled with cases wherein the person added as a joint account owner uses the funds for his or her personal use and/or claims the proceeds upon death of the depositing account holder. Listing an adult child as the joint account holder can be problematic, frequently causing friction among siblings.


A thoughtfully drafted revocable trust is frequently the optimal solution to manage the assets and provide the authority to address the financial needs of an aging adult. If a “living trust” is created, it is essential that the estate planning attorney work with the clients to ensure that title to all their assets, e.g., real property, individual investments, investment accounts, annuities, and life insurance policies belonging to the grantors are transferred to the trust. It is unwise to provide instructions to the grantors and depend upon them to transfer title to the assets. They rarely transfer all the assets, and often assets are not transferred correctly. The trust can be named as the beneficiary for assets whose title cannot be changed.


The grantors are usually named as their own trustees with trusted family members or friends stepping into the role if the survivor of the trustees becomes incapacitated. A bank or other trust institution may also be named as the successor. If a court declares the grantors or the surviving grantor incompetent, the document should be drafted to suspend certain grantor powers.


Suspension or termination of the grantor’s authority to revoke the trust or to remove property from the trust makes it effectively irrevocable.  The conservator cannot then gain control over the trust assets. Instead, the successor trustee will continue to administer the assets as directed in the trust document. The trust can also be drafted to distribute to, or continue to hold remaining assets for future beneficiaries eliminating the need for probate of the trust assets



This content was written by one our panel members, A. H. "Dusty" Branson, an attorney in Atlanta, Georgia.


***If you or someone you know is faced with Incapacitated Adult issues as an elderly citizen, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***


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Elder Law and Reasonable Accomodations

Posted By James Jones, Wednesday, May 18, 2016

Reasonable Accommodations under the Fair Housing Act

By Debra Scott, JD, MPH

Many elderly disabled individuals are unaware that under the Fair Housing Act it is illegal for a landlord to refuse to make reasonable accommodations for persons with disabilities. It has also been shown that persons with disabilities are frequently denied their requests for reasonable modifications or accommodations needed to make available housing fully accessible for them. As such, discrimination in housing against the disabled, especially those with emotional or mental challenges, is a major obstacle for persons with disabilities. 


In a series of studies led by the U.S. Department of Housing and Urban Development, it was found that persons in wheelchairs face extremely high levels of discrimination and adverse treatment. In one study, it was found that persons using wheelchairs receive less information about available rental units and less information about the application process than non-disabled renters. Likewise, there is evidence of landlords denying housing to persons with mental disabilities for reasons that appear to be pretext (pretext is established by a direct showing that a discriminatory reason more likely motivated the defendant or by an indirect showing that the defendant's explanation is not credible).   


Because of the existence of discrimination in housing, in 1988 the United States Congress passed the Fair Housing Amendments Act (FHAA) making it illegal for a landlord to refuse to rent to a person because of a known or perceived disability – including an emotional or mental disability.  These laws also make it illegal for anyone to retaliate against any person who exercises his or her rights under the fair housing laws.  


The Act defines discrimination on the basis of disability to include “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] equal opportunity to use and enjoy a dwelling.” 


Most courts have held that the plaintiff must show a sufficient nexus between the reasonable accommodation or modification requested and the disability. Elderly individuals who have “a physical or mental impairment which substantially limits one or more of such person’s major life activities” are considered disabled under the Fair Housing Act. Disabled individuals should seek legal advice from a disability rights or elder law attorney if they believe they have been discriminated against under the law.  


This content was written by one our panel members, Debra Scott, an attorney in Atlanta, Georgia.


***If you or someone you know is faced with reasonable accomodations issues as an elderly citizen, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

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Human Trafficking

Posted By Emily Ghant (Johnson), Tuesday, January 12, 2016
Updated: Tuesday, January 12, 2016

by Jillian LaBranche, Associate at Human Trafficking Center

A discussion on sex trafficking necessitates a conversation on rape culture. Rape culture is broadly defined as an environment characterized by dominant cultural ideologies, social practices and media images that condone sexual assault by normalizing and trivializing sexual violence. While rape and sex trafficking are not necessarily synonymous, parallels between the treatment of victims of rape and sex trafficking do exist due to underlying rape culture.


Rape culture perpetuates the myth that a victim needs to be “perfect” in order to be worthy of empathy and care.

When someone is raped questions like “what was she wearing” and “was he drunk” surface, implying the victim might bear some blame for what happened. Society is more concerned with the circumstances surrounding the rape than the ramifications — as if rape is a consequence of poor behavior, rather than a result of systemic issues of sexual violence.

Rape victims are faced with a hostile climate due to the perpetuation of rape myths. They are expected to have “known better” and held responsible for their actions. The perfect example is the Steubenville rape case, in which the victim was blamed for the consequences her rapists faced.

Conversations surrounding sex trafficking also tend to focus on the palatability of victims. Questions surface: “was he illegal?” or “did she ever use drugs?”  As with rape culture, these questions ignore systemic causes of trafficking and instead focus on the actions of the victim.

Furthermore, trafficking victims that do not fit the illusion of the perfect victim, such as LGBTQ survivors, often face barriers to accessing treatment. Polaris Project reports “high rates of service denial, as well as violence from breach of confidentiality and unsafe and discriminatory treatment, by staff and other recipients of these services on the basis of their sexual orientation, gender identity, [or] gender expression.

The “perfect victim” is an illusion, yet the media continually perpetuates this portrayal. So what is the perfect victim? This victim is virtuous, proportionately weak, and most importantly — blameless. They do not engage in risk taking behavior (such as being intoxicated or migrating to another country for a job one knows little about). People’s ability to empathize with a victim is contingent upon the victim being perceived as “perfect.”


TV crime and drama shows such as Law & Order: SVU perpetuate rape culture by validating the myth that rape is largely committed by strangers.

In fact, rape is largely committed by acquaintances. This stranger-danger mythology suggests that victims are those taken advantage of by strangers, rather than those attacked by intimate associates.

The popular movie “Taken” about sex trafficking continues to perpetuate the myth and idea of a perfect, kidnapped victim. It suggests that victims are largely “taken”  — ignoring a large population that is groomed by traffickers known to victims. Traffickers can be parents, friends, trusted relatives or even an intimate partner.  Presuming victims of sex trafficking are forcibly abducted by strangers ignores the agency the victim may have had in trying to secure a better life before finding him or herself in a trafficking situation. Admitting the victim has agency makes the victim “imperfect.” This presumption also obscures the intersectional nature of factors like lack of education, opportunity, or security that can lead to vulnerability- much more so than being snatched by a stranger trafficker.

Both rape and sex trafficking signal a depreciation and devaluation of humanity, with both types of victims often blamed by society unless they can be perceived as “perfect.” In many sex trafficking cases in the US, victims are arrested and charged with prostitution while pimps and traffickers go free.  In fact, many traffickers are known to victims and have established relationships, complicating a victim’s ability to understand the situation as trafficking or testify without fear of retribution.


While the federal anti-trafficking legislation states that individuals engaged in forced prostitution are trafficking victims, law enforcement officers continue to arrest and charge them with crimes- even if they are committed as a result of being trafficked.  Colorado only recently passed a bill to allow victims of sex trafficking an affirmative defense for such charges- but only for prostitution charges.

It is worth noting that 97 percent of rapists do not see the inside of a jail cell. Rape is a difficult crime to prosecute — a rare crime where the victim must prove they are innocent.

Similarly, incentives are greater for traffickers to trade in sexual exploitation, rather than other illicit commodities, such as drugs. For them, it is less dangerous to sell people than drugs — especially since human trafficking is largely under-prosecuted globally. Additionally, because many people can be working together to carry out the act of sex trafficking, it too, is very difficult to prosecute.

This miscarriage of justice furthers public perception that there is something inherently wrong with rape victims or victims of trafficking.

Furthermore, many sex trafficking victims do not self-identify as trafficking victims. The same is true of rape victims, because our culture has normalized rape — many people fail to realize that their experience qualifies as rape or trafficking, limiting cases that can be brought before the court

A parallel between rape culture and sex trafficking certainly exists. But where is the nexus? More research needs to be done to uncover the intersection between these two forms of sexual violence, as rape culture appears to be perpetuating the dehumanizing treatment of those in sex trafficking in both courts, media, and public perception.


**This content was provided by Human Trafficking Center Associate, Jillian LaBranche. We do not endorse the content of this blog or any attorney. If you are in need of an attorney, please contact us at 404-521-0777**

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National Reunification Month

Posted By Emily Ghant (Johnson), Thursday, June 4, 2015
Updated: Thursday, June 4, 2015



The effect is negative in almost every circumstance.  Convicted felons leave behind family and friends who oftentimes had nothing to do with the inmate’s crimes.  


By far, the most devastating impact is on the children.  Many of these children come from a culture of incarceration.  They grow up seeing their uncles, brothers, and cousins going to prison.  For some kids, it is almost a normal occurrence. But, what about when their parents are incarcerated?  This has a chilling effect on almost every facet of a child’s life.  This includes, but is not limited to the following truths:

1.       A father cannot be a father when he is locked away in a remote prison or even in the county jail.  There is absolutely no parenting whatsoever.  A child with an incarcerated parent is lucky to have another involved parent or other family members who have “stepped up” to raise the child.  Sadly, many of these children are in DFCS custody.

2.      Taking children to “visit” parents in jail is common.  However, I disagree with this practice.  It further “normalizes” the situation; 

3.      A father cannot financially support his children in jail.  This is obvious.  While many inmates are unemployed, some are hardworking productive members of society when they are clean and sober.  The darkness of addiction envelops many men and women in this category;  

4.      Hate and fear develop within many of these children.  They will be much more likely to commit crimes themselves, become involved in the juvenile justice system, and eventually go to prison themselves.  

Fortunately, Governor Deal has lead the way in instituting non-violent drug offender reforms, promoted drug and mental health courts, and has put some offenders back to work while on parole via earlier release dates.   


This content was written by one our panel members, Jason Swindle, a Criminal Defense attorney in Carrollton, Georgia.


***If you or someone you know is faced with a custody issue while a parent is incarcerated, please call

Atlanta Bar Association's Lawyer Referral & Information Service

at 404-521-0777.***

Tags:  crime  families  family  fathers  felonies  Governor Deal  incarceration  inmates  jail  offender  prison  reforms  reunification 

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Signs of Nursing Home Neglect

Posted By Emily Ghant (Johnson), Tuesday, May 12, 2015
Updated: Tuesday, May 12, 2015


 Is Your Loved One At Risk?

        One of the most frequent questions I am asked about loved ones in nursing homes is how you determine if someone is being neglected. My experience with neglect in nursing homes is informed by both my legal practice and my work in nursing homes as a certified nursing assistant for over eight years. I have seen firsthand the day to day activities, care, and treatment of nursing home residents.  I have witnessed some of the best nursing care and some of the worst.

The four main concerns that people generally have about their family members living in nursing homes relates to bruising, wet diapers, weight loss, and bed sores. Based on my experiences in the trenches and as an attorney I typically tell people the following:


It happens. The elderly are much more prone to bruising than other demographics. This is especially true if they are taking a blood thinning medication like Coumadin. Many times staff members can cause bruising by simply helping a resident get out of bed or take a shower. It is not a definitive sign of neglect. This does not mean that bruising should go unquestioned. For example, bruising around the face could indicate a fall. If your loved one has bruising speak with the charge nurse to determine what happened.

Wet Diapers

Many elderly living in nursing homes are incontinent (unable to hold in urine or waste).  The protection they wear is simply an adult version of infant diapers. These diapers are absorbent and designed to wick fluids away from the skin and keep the wearer dry until changing. It would be mathematically and physical impossible for the nursing staff to immediately change every wet diaper in the nursing home. However, there are some signs to look for regarding hygiene neglect. Is the front of the diaper yellow? Is the bed underneath the resident wet?  Either of these could mean that it has been hours since the resident soiled themselves.  If you discover one or both of these conditions you need to speak with the charge nurse immediately and voice your concerns.

Weight Loss

Many families are rightly concerned with the loss in weight they observe in their loved ones. However, like bruising, losing weight is commonplace even absent negligence. Weight loss can possibly be tied in with trouble swallowing food. If the resident has trouble swallowing they may be put on a diet that involves food thickeners. It may also be caused by depression or medication. Even when the staff does everything they can to get someone to eat and drink you have to remember that these are human beings and have the privilege and ability of refusing. Nevertheless, there may be grounds for negligence if the nursing home failed to follow dietary guidelines or report weight loss to the doctor.  

Bed Sores

I have saved this one for last because it is a red flag.  Nursing homes typically place bed bound residents on a strict turning schedule to prevent decubitus ulcers.  These types of ulcers are commonly caused by the prolonged exposure of an area of the body to one spot on the bed.  The pressure on that body part will cause the skin to breakdown. What will begin as a painful, red area, can quickly turn into a gaping wound capable of severe infection.  The nursing staff should be on high alert anytime they notice a pressure wound forming. There is no excuse for a pressure wound to spiral out of control.  If the sore is bad enough it could be a clear indication that the nursing home staff has routinely failed to ensure proper turning.  If you see this you need to speak with the charge nurse and call an attorney to help you investigate the matter.

Be vigilant

The best practice is to visit your loved one often. Let the staff know that you are interested in your family member’s care and want notifications of all accidents and problems. Most of the nursing staff are considerate loving people who want to make life for the residents as comfortable as possible.


            This list is provided by Attorney Will Smith, partner at Schenk Smith LLC, to give guidance in placing a loved one in a nursing home. It is not legal advice and does not create an attorney client relationship. If you or a loved one believe you have been injured by a nursing home please contact the Atlanta Bar Lawyer Referral & Information Service at 404-521-0777

Tags:  Abuse  Atlanta Bar Association Elder Law Section  Attorney  bed sores  bruising  Law  Neglect  Nursing Homes  wet diapers 

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Plea Bargain vs. Trial

Posted By Emily Ghant (Johnson), Monday, March 23, 2015
Updated: Monday, March 23, 2015

Plea Bargain or Trial?

Every week I get calls from people who want to withdraw their guilty plea.  Over and over I hear “I didn’t want to plead guilty, but my lawyer made me.”  Unfortunately, these people think that they have the right to withdraw their guilty plea, but they are wrong.  You only have the right to withdraw your guilty plea before the Judge sentences you.  Once your sentence is pronounced, it is within the Judge’s discretion whether to allow you to withdraw your guilty plea.  And, once the “term of court” has passed, the Judge does not have the authority to allow you to withdraw your guilty plea and the plea must be attacked through a petition for habeas corpus (which is a difficult and expensive process).  What this means is that you should never enter a guilty plea with the mindset that you will just withdraw your guilty plea at a later date.


You also need to understand that your lawyer cannot force you enter a guilty plea.  As best stated by one of the judges I practiced before when I was a prosecutor, “Lawyers don’t tell you whether to plead guilty or go to trial.  They tell you about your options and the consequences of the decisions you make.  Ultimately, you’re the one who decides whether to enter a guilty plea or go to trial.”  These are true words of wisdom that every criminal defendant must know and understand; your lawyer can give you his opinion about whether you should take a plea offer, but you, and only you, decide whether to take the plea offer or take your case to trial.

Some clients come into my office and say, “I just want to plead guilty, get me a good deal.”  Others tell me that they will “never enter a guilty plea.”  Regardless of whether a client wants to enter a guilty plea or go to trial, I have a constitutional duty to get the client the best possible plea offer and then let the client decide whether he wants to take that plea offer or go to trial.

There are many factors to consider when deciding whether to enter a guilty plea or go to trial.  Some of the factors include: the terms of the plea offer, the leniency or harshness of the plea offer, whether the plea is negotiated (both sides agree on a certain sentence), whether it is a “blind” plea (both the prosecutor and your lawyer make recommendations to the Judge, who ultimately decides the sentence), the Judge’s sentencing propensity, the county where your case is pending, whether there is any mandatory minimum punishment, and most importantly the strength of the evidence that that State has against you.  It is critical to discuss these factors with your attorney so you can make an informed decision about your case.  That is why I sit down with all my clients and say, “Here is the offer.  These are the things you need to consider.  This is the evidence the State has against you.  These are your options.  These are the consequences of the decisions you make.” 

Whatever your decision, think long and hard before deciding to enter a guilty plea.  In all likelihood your decision to enter a guilty plea will be final and you will have to live that decision for the rest of your life.

Noah H. Pines is a partner at Ross & Pines, LLC and has been practicing criminal law, both as a former prosecutor and criminal defense attorney, for the past 20 years.

Tags:  court  crime  criminal defense  criminal law  law  plea  sentencing  trial 

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Civil Rights

Posted By Emily Ghant (Johnson), Wednesday, February 11, 2015
Updated: Wednesday, February 11, 2015


I frequently get calls from individuals who want to know what the police can and cannot do.  Can they search my car? Can they search me? Can they force me to show identification?  Do they have to read me my rights? When can I be arrested? These are just a few of the many questions people have about their interaction with law enforcement.  Prior to addressing these issues, it is prudent to mention of a couple of ways to help avoid problems with the police.

Don’t ever force a confrontation with the police

Even if you believe you are 100% correct, do not antagonize police officers. Much like any profession there are some good officers and some bad officers, but they all have a job to do.  The quickest way to find yourself injured “resisting arrest” is to challenge the police and tell them what they can and cannot do.  You might be armed with your constitutional rights, but they are armed with guns, mace, tasers and batons.  If you feel your rights are being violated, do not physically resist the police but do state calmly and clearly that you do not give permission or consent to a search of your body, car, house, etc. The best place to vigorously fight violations of your constitutional rights is the courthouse, not on the roadside.


Do not leave your vehicle (unless ordered by the police


Traffics stops are dangerous for the police and can be for you as well. Never leave

your vehicle voluntarily even if you have a good reason.  The police do not know you and do not know your intentions and will likely fear the worst.  I had a client rushing to the hospital after he was advised his dad had a stroke.  He sped through a speed trap and an officer pursued him.  He pulled over and immediately got out of his car to explain himself to the officer.  The officer calls for back up and screams at my client to get back in his vehicle.  My client yells back about his father, but the officer continues to order him back into his vehicle.  The other officers from the speed trap arrive and they take my client down on the concrete and he hits his head.  My client’s brother gets out to see what is going on and he is thrown up against the vehicle.  This situation could have easily been avoided by both sides.  The key thing to remember is the police can’t read your mind and will assume you are a threat if you leave your vehicle.


1) Can the police force me to show identification?

Georgia is not a strict “stop and identify” state and ties the identification request in with the loitering statute.  Georgia Code § 16-11-36 states the following:

(a) A person commits the offense of loitering or prowling when he is in a place at a time or in a manner not usual for law-abiding individuals under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

(b) Among the circumstances which may be considered in determining whether alarm is warranted is the fact that the person takes flight upon the appearance of a law enforcement officer, refuses to identify himself, or manifestly endeavors to conceal himself or any object. Unless flight by the person or other circumstances make it impracticable, a law enforcement officer shall, prior to any arrest for an offense under this Code section, afford the person an opportunity to dispel any alarm or immediate concern which would otherwise be warranted by requesting the person to identify himself and explain his presence and conduct. No person shall be convicted of an offense under this Code section if the law enforcement officer failed to comply with the foregoing procedure or if it appears at trial that the explanation given by the person was true and would have dispelled the alarm or immediate concern.

            Although this seems somewhat clear, the language of the statute allows for many ambiguous situations to qualify as a time when identification is required.  It is likely in your best interest to produce identification if requested by law enforcement to avoid further more invasive inquiries and confrontation.

2) When can I be stopped and searched?

Generally, the Fourth Amendment requires that the police have a reasonable suspicion that a crime has been, is being, or is about to be committed before stopping a suspect.  If the police reasonably suspect the person is armed and dangerous, they may conduct a quick pat-down of the person’s outer clothing.   

3) Do the police have to read me my rights?

            Yes, they do.  However, the remedy for this type of violation is the suppression of any information that incriminates you or others in your criminal trial.

As a final thought, racial profiling exists. People in general judge you based on how you look and act.  Law enforcement is no different.  Young black males are disproportionately represented as both victims and offenders of homicides.  If you're a young, black male, chances are that you will be stopped by law enforcement officers even when you haven't done anything wrong. If stopped by law enforcement for no reason, keep in mind the following to ensure your safety. When stopped, assume a non-threatening position with your hands visible. If ordered out of your vehicle, be calm, speak clearly and stay in front of the police car if you can as this is usually where the video is pointed. Do not antagonize or confront the officer.  If your rights are being violated, that can be addressed in court where the playing field is more level.  You can also file a complaint with the police department.


Matt Gebhardt is an attorney in the Atlanta area who pursues cases for those whose civil rights have been violated.  The above information is in the form of general guidelines intended to inform the reader and is not intended as legal advice.

***If you think that your civil rights may have been violated, please call Atlanta Bar Association's Lawyer Referral & Information Service at 404-521-0777 for a referral to the proper attorney!*** 

Tags:  black male  civil rights  constitution  law enforcement  legal  LRIS  miranda rights  officer  police  search  violated  violation 

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Posted By Emily Ghant (Johnson), Wednesday, January 14, 2015

One of our Criminal Defense panel members, Jason Swindle, has been kind enough to help educate the community regarding potential charges associated with stalking.  Please see his take below. If you find yourself a victim of stalking or in need of defense for a stalking charge, call Atlanta Bar Association's Lawyer Referral and Information Service at 404-521-0777, for a qualified attorney who can offer you legal advice.





In Georgia, criminal laws are often misunderstood or just ignored.  The laws addressing the act of stalking should not be in that category.  Many good men and women go to jail because of stalking and the most serious version of this type of offense, aggravated stalking.   


Because of space limitations, this is a nutshell version of the topic of stalking in Georgia.  However, there are some plain terms used in Georgia stalking law that are important to understand when thinking about a serious charge like this.


1.  CONTACT: You must contact another person to be charged with the offense of stalking.  There are many definitions, interpretations, and arguments about what is and is not “contact.”  Contact can be direct (Reaching someone, not only in person, but also by phone, broadcast, mail, or computer) or indirect such as through a third party.


2.  HARRASS OR INTIMIDATE:  This consists of causing the alleged victim emotional distress by putting them in fear of their (or their family’s) safety, by establishing a pattern of harassing and intimidating behavior for no legitimate reason.

(Always be careful when thinking about the word “legitimate.”  An accused’s definition of a legitimate reason may be different than the police officer’s view).


The most common way that someone can be accused of stalking in Georgia is when they allegedly put someone under surveillance or contact them without their permission in an effort to harass or intimidate them.



If a person is charged with stalking, it will be treated as a misdemeanor for the first offense.  The maximum penalty is up to a $1000 fine and 12 months in jail.


If a person is accused of a second or subsequent stalking offense, the case will be charged as a felony and the person will face up to 10 years in prison. 



This offense is the most serious and unfortunately the most common form of stalking.

A person may be found guilty of aggravated stalking if they put someone under surveillance or contact them in violation of a protective order (temporary or permanent), restraining order (temporary or permanent), probation, parole terms, or preliminary or permanent injunction.


In other words, if a person has been ordered by the court to stay away from another person and not contact them, but the defendant continues to harass them, there is a good chance that an aggravated stalking warrant will be signed by a judge.  (By the way, this form of behavior is also terribly disrespectful to the judge who signed the original order.  Under these circumstances, bond can be very difficult.)



Aggravated stalking is a serious felony. If a person is convicted, he or she will be facing 1-20 years in prison.

The reason that this offense is so common is probably tied to family problems, divorce, family violence, and other strong unhealthy emotions that people have.  Unfortunately, I have seen many good people over the years engage in an emotional downward spiral that eventually leads to aggravated stalking charges. 


Fortunately, judges in Georgia are beginning to see the value of psychological and/or psychiatric evaluations coupled with treatment before disposition in these type of cases.  This has two benefits:

1.  The victim can be protected if the defendant’s mental health improves (no one is going to just be locked away forever); and

2.  The defendant gains access to the mental health treatment that may be at the very core of his or her unacceptable behavior. 


I will leave you with this.  Remember that you do not have to threaten the alleged victim to be convicted of stalking or aggravated stalking.  In this era of social media, smartphones, and instant communication, it is very easy to be accused of contacting a person for the purposes of stalking by just pushing a button.   

Tags:  aggravated stalking  crime  criminal defense  criminal law  felony  stalking 

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Wrongful Termination or 'At-will'?

Posted By Emily Ghant (Johnson), Tuesday, November 4, 2014
Updated: Wednesday, November 12, 2014

Hello, my name is Michelle LeGault and I handle employment law matters for employees and companies.   I have had the pleasure of serving as a Member-At-Large of the Atlanta Bar Association Lawyer Referral & Information Service (“LRIS”) Board of Trustees since June 2011.  I often get calls from potential clients who want to know if they can sue their former employer for “wrongful discharge”.  But is this possible in Georgia?  Read on to learn more.


Can you sue your former employer for “wrongful discharge”?

According to the National Conference of State Legislatures, “[e]mployment relationships are presumed to be ‘at-will’ in all U.S. states except Montana.  The U.S. is one of a handful of countries where employment is predominantly at-will.  Most countries throughout the world allow employers to dismiss employees only for cause.   Some reasons given for our retention of the at-will presumption include respect for freedom of contract, employer deference, and the belief that both employers and employees favor an at-will employment relationship over job security.” (, last accessed 10/22/14)


Thus, Georgia, like the great majority of states in the U.S., is an “at-will” state.  This means that an employer can terminate an employee for a good reason, a bad reason, or no reason at all, provided that the termination does not violate anti-discrimination or other relevant statutes.  Likewise, an employee is free to quit for any reason or no reason.  That is, the state of Georgia generally does not impose any restrictions on the ability of an employer to terminate an employee.  There are exceptions for certain classes of employees, such as tenured public school teachers and others working under merit systems, as well as exceptions for engaging in statutorily protected activities such as serving on a jury. 


Most employees in Georgia are employed “at-will” and may quit or be fired at the whim of either party.  There are no public policy exceptions in Georgia to the at-will doctrine.  Any lawsuit that an employee may have legal and factual grounds to bring for “wrongful discharge” would be an action for breach of contract; there is no tort (with their attractive unlimited jury damages and potential punitive damages) for wrongful discharge in Georgia.  Breach of contract damages are generally limited to actual damages resulting from the breach.  Punitive damages are not allowed for breach of contract.  Moreover, an employee suing his former employer for breach of contract has a duty to lessen the damages from the employer’s breach.  This is called the “duty to mitigate”.  If the contract of employment is oral, the employee must file suit within four years; for written agreements, the employee has six years within which to file suit.


Certain highly placed executives may have a written employment agreement for a specified term of employment which spells out in what circumstances the company may terminate the employment relationship and/or under what conditions the employee may resign.  Those are far and away the exception, and whether a terminated employee may sue her company under such circumstances will largely depend on the terms of the written contract. 


When I get calls from potential clients who believe they have been “wrongfully discharged”, I delve into the facts leading up to and surrounding the separation of employment.   I want to know the potential client’s age, gender, ethnic origin, race, religion, disability status, gender identity, pregnancy or lactation status, and any other category protected or potentially protected by state and/or federal law.  I also want to know whether they were recently out on leave of any type, what their performance history has been, including any formal performance evaluations, and whether their unit or company has undergone any changes in management or structure.  Oftentimes what I hear are stories about employees who were treated unfairly but lawfully by their supervisors.  However, sometimes, the facts appear to give rise to one or more claims under the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), the Age Discrimination in Employment Act (ADEA), Title VII of the Civil Rights Act, or another anti-discrimination statute. 

If you believe that you have been a victim of employment discrimination or feel that your rights as an employee has been violated, please call Atlanta Bar Association's Lawyer Referral and Information Service at 404-521-0777.


Tags:  ADA  EEOC  employee  employer  employment discrimination  FMLA  labor law  work  wrongful termination 

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5 Things to Remember during a Police Encounter

Posted By Emily Ghant (Johnson), Monday, October 20, 2014

See what local Criminal Defense Attorney, Noah H. Pines, thinks we all should know regarding interactions with law enforcement.


Every encounter with the police involves hundreds of variables. This guide cannot cover all of those variables but instead is designed to teach you how to stay safe and protect yourself during a police encounter and to educate you about some of your Constitutional Rights.


1. Stay Calm/Stay Safe

The key to any citizen/police encounter is to stay calm and stay safe. Getting stopped or approached by a police officer can be a nerve-racking experience. In fact, you often hear police officers ask people "why they are so nervous?" If you are stopped by the police officer, do not panic and do not do anything stupid (like try to flee, start hiding stuff in your car or throwing it out the window, or fight with the police). Instead, if you are the driver of a car, pull over immediately. Once you are pulled over, place your hands on the top of the steering wheel and leave them there until the officer has approached the side of your car and can see them. If a police officer sees you moving in your car or reaching for things, the officer will automatically think that you are either hiding contraband or reaching for a gun. This happened recently in South Carolina when a police officer instructed a man who had just stepped out of his car to "show his license." When the man reached back into his car to get his license, the officer shot him several times; the officer's excuse was that he thought the man was reaching for a gun. If you need to get something or reach for something, ask the officer for permission before you act. Be polite and respectful to the officer even if you do not think you did anything wrong. It is true that police officers often stop people for no reason or without legal justification. Even in this circumstance, it is not going to be helpful to argue with the officer. Arguing with a police officer is like arguing with a referee or umpire; you are not going to win the argument, the officer is not going to change his decision and unlike a referee or umpire, who can throw you out of a game, the officer can simply arrest you. Your lawyer will ultimately be the person who argues for you in court. If the officer made a mistake or treated you unfairly, let your lawyer deal with it as your lawyer can actually "win that argument" in court.

2. Are you being detained or are you free to leave?

There are three different levels of citizen/police encounters. The two that are important for this topic are the Tier 1 & Tier 2 encounters. A Tier 1 encounter is called a voluntary encounter in which a police officer can approach you and ask you questions without any belief that you committed a criminal act; you can walk away from a Tier 1 encounter at any time. The problem is that a police officer will never tell you that he is conducting a voluntary encounter and that you have the right to walk away unless you ask. So, if you are approached by a police officer, even before start answering questions (which we discuss in the "You have the Right to remain silent" section of this guide), you should ask the officer whether you are being detained or whether you are free to leave. If the officer says you are free to leave, then you know you can go. A Tier 2 encounter is often referred to as an investigatory stop and typically occurs when you are driving and pulled over. In a Tier 2 encounter, the officer may stop or detain you based on a reasonable articulable suspicion, which means that there is some objective evidence that you may have committed a crime. However, just because the officer has the right to stop or detain you does not mean that you are required to answer questions and incriminate yourself. Again, since an officer is not going to volunteer whether he is conducting a Tier 1 or a Tier 2 encounter, ask the officer if you are free to leave. As we know from the Tier 1 situation, if he says yes, then you can leave. If he says no, then if and when the case goes to court he will have to prove that he had enough evidence to detain you.

3. Do I have the Right to remain silent?

Yes, except for identifying yourself, you have the right to remain silent. You have that Right even if the officer does not inform you of that Right (which typically is not required unless your are under arrest and being interrogated). What that means is that you do not have to answer the police officer's questions, which are designed to get you to incriminate yourself. For example, if you are stopped and the officer asks "have you been drinking?" instead of answering "no" or "yes, but I only had two beers" you can simply answer, "officer I would rather not answer that question or any other question you intend to ask me." Many people are afraid to give that answer because they believe it will make the officer mad; however, all you are doing is exercising your Constitutional Rights and protecting yourself from making an incriminating statement, which is all that the officer is trying to get you to do. Let the officer be mad at you for exercising your Constitutional Rights; that is better than you getting mad at yourself after you made an incriminatory statement and end up arrested. Many people ask, "but then won't the officer think I am guilty?" Again, who cares what the officer thinks. It is better for the officer to think you are guilty for not making a statement, than to know you are guilty after you have either lied to him or made an incriminatory statement. Finally, it is a misconception that the officer's failure to inform you that you have the Right to remain silent will result in your case being dismissed. That rarely, if ever, happens.

4. Should I sign a statement?

If you failed to listen to my advice about exercising your Right to remain silent and are asked to sign a statement, please remember these simple rules. 1. If you are being accused of a crime, do not give or sign a statement without first consulting an experienced criminal defense lawyer. 2. Even if you cannot afford to hire a lawyer, ask to have a lawyer present to help you understand your Constitutional Rights. 3. Do not sign a statement you did not write. 4. Do not sign a statement you did not read. 5. Do not sign a statement you do not understand.

5. Should I consent to a search?

The 4th Amendment to the Constitution of the United States of American protects you from unlawful and unreasonable searches and seizures. Unless a police officer has a warrant, or there is a legal exception to the warrant requirement, he cannot conduct a search; this includes but is not limited to a search of your person, car, house, etc. One of those legal exceptions is if the officer has your consent to search. In my experience, over the past 20 years police officers have been trained to ask everyone that they come into contact with for consent to search, even if there is no evidence that a crime has been committed. If you are in your car, the officer may ask "you don't have any hand grenades, explosives, land mines or bombs in the car, do you?" When you answer "no" the officer will usually follow-up with "do you mind if I look?' You should mind and you should be offended. Do you really think the officer thinks you have a grenade in your car? No, he asks that question to knock you off your guard and to get you consent to a search. In my opinion, even asking for consent to search degrades your Constitutional Rights. Most importantly, the officer does not have to inform you that you have the right to refuse consent to search and the police officer can even lie to you to trick you into consenting. Recently there was a case in which a police officer went to the house of a suspected drug dealer and informed the person who answered the door that he was looking for a suspected rapist who might be hiding in the house; of course there was no rapist and the officer just wanted to search the house for drugs. You have the Constitutional Right to say "no" or "officer I do not consent to you conducting a search." These answers will typically cause the officer to ask you "what you have to hide?" If you feel it is necessary to reply, simply ask the officer if you have the Constitutional Right to refuse consent. When he says "yes" then just reply that you are exercising your Constitutional Rights.



Tags:  Atlanta Bar Association  criminal defense  felonies  interrogation  law enforcement  LRIS  police  traffic citation 

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