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Attorneys shouldn’t have to buy a license to practice law in the City of Atlanta or Fulton County, Ga., say two Atlanta lawyers. They’ve filed a suit to stop collection of the $400 license fee from the city and county. Irwin W. Stolz Jr. of Gambrell & Stolz and Robert D. Feagin of Decker & Hallman have filed suit against Fulton County and the City of Atlanta, charging that their ordinances threatening lawyers with fines if they refuse to pay the fee are unconstitutional. Barnes v. Atlanta, No. 2000CV24809 (Fult. Super. June 26, 2000); Bobo v. Fulton, No. 200CV24810 (Fult. Super. June 26, 2000). They are asking for class action status. Their complaints refer to Section 30-51 through 30-63 of the City of Atlanta ordinance and Section 18-39 in the Fulton County ordinance, which require lawyers keeping offices in Atlanta or Fulton County to pay a yearly occupation tax. Failure to pay can result in fines. According to the State Bar of Georgia, 10,602 lawyers are active in the Atlanta Judicial Circuit, which includes the city and Fulton County. ‘PRECONDITION FOR A LICENSE’ “The foregoing ordinance, although denominated as an occupational tax, is in effect, a precondition for a license to engage in the practice of law, rendering it a regulatory fee which is improper and illegal,” according to the complaint. The plaintiffs, including 24 lawyers at Gambrell & Stolz and three at Decker & Hallman, seek a ruling that the ordinances violate due process and equal protection. They also seek an injunction against collecting the tax during the litigation, a refund of the taxes back to 1996 (some $1,200 per lawyer), and attorney fees and litigation costs. Fulton County Attorney O.V. Brantley says she has not seen the complaint, and declines comment. Atlanta City Attorney Susan P. Langford was unavailable for comment on the suit. Though Stolz and Feagin have brought suit on behalf of all members of the state bar who have been subject to the fees since 1996, they have set up two classes of plaintiffs. The first includes those who have paid the tax and have no means of collecting a refund. The second encompasses the named plaintiffs, who asked for a refund of their fees in 1999 and have not received it. Stolz and Feagin say the plaintiffs asked the city to refund their money in February 1999. More than a year has passed since their first letter, Feagin says, without any action from city or county. This year, Stolz says, lawyers at his firm declined to pay the tax. “We said ‘We won’t pay. Sue us,’” he says. The city has left his firm alone, he says, but Fulton County “hassled” some of the partners in an office in unincorporated Fulton County. “We told them to ignore it,” he says. Stolz says refusing to pay the tax could result in misdemeanor criminal charges against the offenders. But he hasn’t heard of anyone trying to enforce the law with anything more than threats. “It’s not whether they have done it,” he says. “It’s whether they could do it under the ordinance.” JONESBORO CASE CITED Stolz and Feagin are basing their suit on Sexton v. City of Jonesboro 267 Ga. 571, 481 S.E. 2d 818 (1997). In that decision, the Supreme Court held that the city may not prohibit the practice of law under threat of criminal penalties. Writing for the court, Justice P. Harris Hines discounted arguments from the city attorneys that the tax was not intended to regulate lawyers, but only to generate revenue. The Atlanta and Fulton County statutes include language saying they are intended only to raise money, not to regulate the profession. The plaintiffs argue that Atlanta and Fulton County’s ordinances have much the same structure as the one in Jonesboro: they usurp the prerogative of the Georgia Supreme Court to regulate legal practice, and threaten those who don’t comply. “Plaintiffs have no adequate remedy at law and will be irreparably harmed by levy and execution for the collection of the foregoing tax, and by possible arrest and prosecution by The City if they do not register and pay the illegal tax,” Stolz and Feagin wrote. TAX UNFAIRLY APPLIED? Also, Feagin says, the city applies the tax unevenly. Only thee of the nine attorneys subject to the tax in his office have ever received notices. “It’s kind of helter-skelter,” he says. “You never know who’s going to get a notice.” That amounts to an “arbitrary and capricious” tax, say the lawyers in their complaints. Stolz says he hopes many of his colleagues in the bar will join the class, should a judge grant the suit class certification. It’s an opportunity, he says, to keep local governments from meddling in legal affairs. “Lawyers are not zealous in protecting their own rights,” he says. “It’s kind of like the cobbler’s child who goes barefoot.”

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