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Ending a controversial prohibition that lasted nearly two decades, the Georgia Supreme Court ruled Monday that lawyer-legislators now may represent clients suing the state. A unanimous court reversed a 1982 decision that barred attorneys who were also members of Georgia’s General Assembly from paid representation of civil litigants in suits or administrative proceedings against the state. Monday’s decision ends that blanket ban and instead states the potential for conflicts of interest — the 1982 court’s rationale for its decision — will be examined on a case-by-case basis. The opinion drew a mixed reaction Monday. The decision is “terribly significant,” says Savannah sole practitioner and State Rep. Thomas C. Bordeaux Jr., who successfully defended his right to represent a man appealing an injury case against the Georgia Ports Authority. Bordeaux, who is also the vice-chairman of the House Judiciary Committee, says the ruling undoubtedly will encourage lawyers who previously had ruled out running for public office because they were barred from handling any cases against the state. “I hope it filters down to the bar that the prohibition against running for office is no longer there,” Bordeaux says. But former Georgia Attorney General Michael J. Bowers, who was in the thick of the debate over the prior rule during the 1980s, says the decision will mean that, “In all areas where citizens charge conflict of interest on the part of public officials, it will be much harder to establish conflict of interest as a matter of law.” The court’s ruling also means that the “trustee clause” of the state constitution — which says “Public officers are the trustees and servants of the people and are at all times amendable to them” — “really has no substantive impact and that there’s no remedy for it,” says Bowers, now in private practice at Meadows, Ichter & Trigg. Bordeaux’s opposing counsel, Thomas J. Mahoney Jr. of Savannah’s Ranitz, Mahoney, Coolidge & Mahoney, referred a request for comment to Attorney General Thurbert E. Baker’s office. Baker says he was disappointed at Monday’s decision and he fears it will erode public confidence in government. The 1982 court’s goals were avoiding the appearance of conflict of interest and the appearance of undue influence, Baker says. The latest ruling, he adds, may send “the wrong message that the goals articulated 19 years ago are not as important as they were then.” FOLLOWS OTHER STATES The ruling puts Georgia’s policy on lawyer-legislators in line with nearly every other state, in opting for a case-by-case analysis of whether a conflict of interest exists and disqualification is warranted. The decision follows a lengthy and, at times, heated debate over the ethics and duties of lawyers and legislators and the constitutional requirements placed upon public officials. That debate lasted throughout much of the 1980s, both in the courts and in the legislature, frequently pitting then-Attorney General Bowers against lawyer-legislators, including, most notably, House Speaker Thomas B. Murphy. It also split the Georgia Supreme Court, both in its 4-3 decision in Georgia Dept. of Human Services v. Sistrunk, 249 Ga. 543 (1982), and in a related 1985 case, Georgia State Board of Pharmacy v. Lovvorn, in which the court held 4-3 that Murphy could represent a pharmacist before a state agency pro bono. The current court contains none of the justices who participated in either Sistrunk or Lovvorn. This week’s decision says the previous prohibition on lawyer-legislators litigating against the state had failed “to cure many of the evils it was adopted to address.” Instead, wrote Justice Carol W. Hunstein for the court, it “acts to deprive the General Assembly of many quality individuals who would not be able to serve the public because of the economic disadvantage it creates.” Hunstein said the old rule unfairly impacted lawyers since no comparable blanket disqualification affected other professions. Moreover, she wrote, the prior ban had, as its premise, the assumption that lawyer-legislators would, for a fee, act in a manner contrary to the public trust and to their professional obligations as officers of the court. The justices, Hunstein continued, “prefer instead to expect the highest standards of ethical behavior from the men and women admitted to the bar who have been entrusted by the public to represent their interests.” Quoting a dissent in Sistrunk written by former justice Harold G. Clarke, Hunstein said, “Instead of presuming impropriety, we choose instead to ‘punish wrongdoing when it occurs.’ ” Georgia Ports Authority v. Harris, No. S00G1368 (Sup. Ct. Ga. July 2, 2001). SISTRUNK SET A STANDARD In Sistrunk, then-State Rep. Bobby L. Hill (coincidentally from the same area as Bordeaux) sought to represent a couple in a petition for a writ of habeas corpus against the Georgia Department of Human Resources. DHR moved to disqualify Hill, alleging that he had a conflict of interest. The late Justice Charles L. Weltner Sr. wrote for the majority, in an often-eloquent opinion. Weltner said the issue before the court was whether the “trustee” language in the constitution was “a substantive declaration of duty or, to the contrary, nothing more than the rhetoric of a bygone day.” That language, he continued, has remained unchanged for more than a century “and we shall take it at its word.” Public officials, he wrote, “are trustees of the people, and do accordingly labor under every disability and prohibition imposed by law upon trustees relative to the making of personal financial gain from the discharge of their trusts.” The state constitution, he concluded, prohibited legislators from representing clients for a fee in any civil transaction or matter in which the state was an opposing party. Weltner ended by saying the majority made no new law with its decision. “To the contrary. What we have done is but to remove from our constitution the blemished wrappings of ancient usage.” Weltner, in his final opinion as a Supreme Court justice before his death in 1992, cited the Sistrunk case and a line of similar cases that flowed from it involving conflicts of interests, as the court’s greatest accomplishment during his tenure. “We have established that [the 'trustee' clause of the constitution] is no empty phrase, but an obligation that is enforceable in a court of law.” Davis v. City of Macon, 262 Ga. 407 Aff’d without opinion, Weltner concurrence (1992). But Sistrunk drew three separate dissents. Chief Justice Robert H. Jordan urged a case-by-case analysis and added that lawyers in most cases can live up to their dual obligations without a disqualifying conflict of interest. Justice Clarke wrote that the majority had misapplied the law of trusts to a broad policy statement in the constitution. And, Clarke warned, the prohibition “creates dangers more serious than the perceived ills sought to be cured.” Clarke said he feared that the holding “renders virtually impossible the service of full time citizens as part time public servants” and would result in a special breed of elite government officials, “removed by law from the daily problems and experiences of the great mass of the people.” He wrote “reason dictates that we continue with a legislature close to the people and that we punish wrongdoing when it occurs.” Justice George T. Smith, in his dissent, warned that the decision could result in fewer lawyers able or willing to serve in the General Assembly. “The rule adopted by the majority will be but another obstacle placed in the path of potential public servants.” 1985 STRIKE AT ‘SISTRUNK’ The 1980s saw repeated but unsuccessful efforts in the legislature to enact a law that would overturn Sistrunk. In 1985, Murphy and Bowers squared off before the Supreme Court, when Murphy sought to represent William Robert Lovvorn, a pharmacist, in administrative proceedings before the Georgia State Board of Pharmacy. Murphy, who could not be reached for this story, filed a statement that he had not and would not charge a fee for handling the case. Bowers, however, argued that Sistrunk should be extended to prohibit even pro bono legal representation. Again the court split, 4-3. Writing for the majority, Justice Harold N. Hill Jr. concluded that the constitution did not prohibit a lawyer-legislator from “using his legislative office to serve his or her constituents where no fee is paid. Political influence exists, and will continue to do so; this is a fact of life. Although this court can correct errors of law, like them or not we cannot change the facts of life.” Presiding Justice Thomas O. Marshall and Justices Hardy Gregory Jr. and Weltner dissented. This week’s decision, however, was unanimous. Hunstein wrote that the justices “reaffirm the lofty goals” enumerated in Sistrunk, but concluded that nothing in the constitution mandates a blanket disqualification rule. She also noted that Sistrunk permitted such anomalous situations as allowing lawyer-legislators to handle criminal cases, even when the state paid for the representation and allowing pro bono civil representation of litigants against the state. Bordeaux says Sistrunk took “lofty-sounding words” from the state constitution and misinterpreted them to hold that “24 hours a day, that means your law practice falls to the state job at all times.” The prior rule had less impact on sole practitioners than lawyers in large firms, he says, because if a lawyer-legislator were conflicted out, so would be the entire firm. “You suddenly cost your firm money.” He says the rule unfortunately has resulted in dwindling numbers of lawyers in the legislature in recent years, noting that the Judiciary Committee once was made up exclusively of attorneys, but now has nonlawyers in its ranks. Bowers, however, says he never heard any lawyer decline to run for office because of the ban on suing the state. The dwindling numbers of lawyers in the General Assembly are the result of a number of factors, Bowers says, including the fact that “politics is very mean and very petty.” And, he adds, it’s increasingly hard for lawyers to make a living practicing law while holding a 40-day-a-year part-time job as a legislator.

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