Episode Synopsis: Lester Tate, former President of the State Bar of Georgia and former Chair of the Georgia Judicial Qualifications Commission, discusses his career as a trial lawyer, the current state of judicial ethics, and the often political nature of successful advocacy. Since 1996, Lester has practiced as a shareholder in Akin & Tate, Georgia’s oldest continuing law firm, and offers his advice to new and future attorneys, including the one job he believes best prepared him for a career in law.
Lester: Politics and the law is a very adversarial thing. And I think one of the most important lessons that I learned was, you’ve got to put yourself in the other sides’ shoes a little bit, walk around, see why they believe what they believe, why they think the way that they think. Another thing that I think I learned is that so much of what we do as lawyers really is a political process, who you know in that system, and who you’re able to get it by, support resources you’re able to tap to try to make your arguments better or to try to get input on a case, or knowing a clerk of court. I think it’s true that I’ve gotten as much help from court clerks, and bailiffs, and sheriffs and deputies over the years in my law practice as I have from lawyers, and judges, and appellate judges or justices.
Scott: That was Lester Tate, former chair of the Georgia Judicial Qualifications Commission and former president of the State Bar of Georgia speaking about the value of the intangibles as they have an impact upon successful law practice and the political nature of successful advocacy. Lester Tate joined me for about an hour to discuss his career, and background, and the state of judicial ethics in the present time as well as those components that make for good lawyering. I hope that you enjoy listening to this podcast half as much as I enjoyed doing it, and I hope you learn half as much as I learned from Lester. This is “The Advocate’s Key” podcast. I’m Scott Key with Scott Key and Associates. You can find me at scottkeylaw.com.
I’m joined by Lester Tate, the former president of the State Bar of Georgia, former chair of the JQC, very active in the legal community. Thanks for joining me on the podcast today.
Lester: Thank you so much for having me, Scott. It’s a pleasure to be here and I look forward to talking to you.
Scott: Well, take a minute… I always like to have guests introduce themselves. Who is Lester Tate?
Lester: Well, I’m a kid that grew up in Cedartown, Georgia. My dad worked at the Goodyear Mill there. You know, as a kid, you know, I think I liked these law shows and particularly liked watching “Perry Mason” reruns so, ultimately, went to Georgia Tech because my parents made two mistakes. Mistake number one was, they thought if you were smart, you went to Georgia Tech regardless of where your aptitudes lay even if they weren’t in engineering and sciences, and the second mistake they made was they thought I was smart. But, somehow, I managed to get out, as Tech graduates call it graduation, and go to law school. And I’ve been practicing law in Cartersville for about 34 years now. And I will have to say that I really enjoy the practice and the life of, really, just being a country lawyer.
Scott: And you practice and live now pretty much close to where you grew up. You grew up in Cedartown, I think?
Lester: Yeah. You know, I ended up in Cartersville. I practiced law in Atlanta for about three years right after I got out of law school. And one of the great things about Cartersville, Georgia, I know you didn’t have me on to be the tourism czar for Cartersville, but Cartersville is a great place to live and work. And I feel like I’ve got…you know, when I went to Georgia Tech, I really, kind of, fell in love with Atlanta. I like Atlanta, I like the city. But I like the small town too, and Cartersville was, sort of, a perfect blend of both of those. Because I’m only 40 minutes from downtown, I could be to the center of downtown. When I was a state bar president, I could go to bar headquarters down on Marietta Street in 50 minutes, you know, which is about what you would expect coming from Alpharetta or some of those places now. But I still get a lot of small town life and I get to have a, sort of, small town practice and I really enjoy both of those.
Scott: Yeah, and that’s kind of what Griffin is like. I’m in Griffin, practice in McDonough, and depending upon what might happen with Eagles Landing Parkway and Hudson Bridge Road, it’s about that equivalent distance to come into Atlanta to…if I have to go to the Supreme Court, or Court of Appeals, or go to the state bar, or something like that. So, yeah, definitely a small town, particularly if you can be that close to Atlanta, is the way to go.
Lester: Well, and I think too, it was always, sort of, my desire to have a, I’ll say, a statewide practice. So in better times, when we weren’t in the middle of COVID and things like that, you know, I was in Atlanta three or four days a week. So you can have, as my friend and mentor Bobby Lee Cook said, you know, “You can have as good a practice in a small town in Georgia as you can in Atlanta or New York City because we read the same books,” is what he said. I guess I’d say we have the same computers nowadays because books seem a bit passé. But it really is the quality of the practice that you have and not the geographical location, I think.
Scott: Well, there was a period of time, just looking at doing a little bit of research on you, there was a period of time where you were in DC?
Lester: Yes, there was and I really enjoyed it. It’s still one of the most formative things that I did. Graduating from Georgia Tech and wanting to get into law school, my grades having suffered from having to take calculus and chemistry, and I think chemistry is the only class I ever, ever flunked, just made a flat F in, but I wanted to make myself attractive to law school so I applied for an internship at the general assembly and for an internship with Senator Nunn and I got both of those. So I graduated from Georgia Tech, I did the internship at the general assembly, I did the internship with Senator Nunn. And Nunn’s office offered me a job. You know, sort of, at the end of that time, the KAL 007 got shot down over the Sea of Japan…
Scott: I remember that.
Lester: Larry McDonald who was the most conservative member of Congress but he was also a Democrat because everybody in Georgia was a Democrat at that point, and he was on that plane and was killed. And so somebody that I knew a little more distantly then was George Buddy Darden who had been a district attorney in Cobb County, he was in the state legislature, he ran and got elected to that congressional seat and hired me, 21 years old, to be his press secretary. It was one of the best jobs I’ve ever had and, truly, the only job I’ve ever had other than being a trial lawyer. And so Buddy became my mentor, and, of course, he served, I think, 12, 13 years in Congress, came back, he’s practiced law. And he’s still my mentor today. He just had his 77th birthday, I think. I talk to him about two or three times a week or we’re always off to a fundraiser, or a bar meeting, or a political event, you know, through the week. But that was some of the most formative times in my life, and I felt like there were a lot of people who want to go clerk for a judge to, sort of, get a little practical experience, to be able to observe other people after they complete their law degree, but I felt like I got a full, you know, like, three-year clerkship under Buddy’s tutelage. And it’s the kind of thing that really and truly has helped me more than anything else in my career.
Scott: And this was before law school that you did that?
Lester: It was. I guess I’ve always been a believer in momentum because when I went to Tech, I actually went summers. You know, I had an apartment, I thought I just want to get through. So I got through Tech in three years and then I worked in Washington for about three years and went to law school at University of South Carolina. And I actually went through law school in two and a half years, you know, so I, sort of, accelerated both of those and I was able to get out and, sort of, start practicing at the normal age that you would be if you’d went, straight through but I, kind of, had that three years of experience. And, you know, frankly, I think I learned more during that interregnum than I did at Georgia Tech or in law school about things that I just use day-to-day, you know, in my law practice.
Scott: Well, what were some of the lessons from the job of being a press secretary then that you take with you into law school? What are some things that you, kind of, do, or you think you excel at as a result of the experience of being a congressional press secretary?
Lester: One of the first things that I think I learned from Buddy Darden was that you always…now this is sometimes called the Atticus Finch lesson. You know, in “To Kill a Mockingbird,” he says, “You never really understand somebody until you get in their shoes and walk around in their shoes, you know, a little bit.” And, you know, politics and the law is a very adversarial thing. And I think one of the most important lessons that I learned was, you’ve got to put yourself in the other sides’ shoes a little bit, walk around, see why they believe what they believe, why they think the way that they think. Another thing that I think I learned is that so much of what we do as lawyers really is a political process. And by that, I mean that political in the highest use of that word, not in the pejorative use of that word.
But, you know, if you think about it, we’ve got three branches of government, and the judicial branch where court cases are heard is the only branch of government that you get to pick the person that goes to represent you hands down, no real question about it, you know, unless you’re in a, I guess, a court-appointed situation. But who you know in that system, and who you’re able to get advice, and what resources you’re able to tap to try to make your arguments better or to try to get input on a case, or knowing a clerk of court, you know, that will…
Scott: It’s so important, the clerk of court.
Lester: It’s just it. And so, in the political realm, you learn how it’s, sort of, the richest man in the graveyard, you know, is equal to the poorest man in the graveyard. You know, at the end of the day, that’s true at the ballot box too. And I think it’s true that I’ve gotten as much help from court clerks, and bailiffs, and sheriffs or deputies over the years in my law practice as I have from lawyers, and judges, and appellate judges or justices.
Scott: You know, giving an opening and then closing, and knowing the rules of evidence, and knowing how to cross and, you know, do a theme of the…you know, all of the litigation trial skills are very important but they’re such a small percentage of the job.
Lester: It really is. You know, when you’re the bar president, people want you to come give them a speech particularly a lot of younger lawyers. I don’t really know that I have a lot of wisdom to impart. But one of the, sort of, speeches that I regularly gave the younger lawyers, and a couple of the groups asked me back so they must have thought I knew something even if I didn’t, but one of the things that I would tell them is, I think there are three basic skills, certainly, for trial lawyers. And one of those is that you have got to be a scholar. Because if you don’t know what the law is, and if you think you’re going to just BS your way and bluff your way through without knowing what the law is and without being able to come up with novel legal theories, or novel legal defenses, or whatever else, you’re not going to be much of a lawyer. You have to know the law, you have to be a legal scholar.
The second thing I think is that, what you’ve just talked about, those skills that are courtroom skills. To be able to go out and cross examine a witness, to be able to make a decision when something favorable or unfavorable happens in a courtroom, to either press the advantage or to get out of an ambush, you have to know that. The third skill that I’ve said is, really, that of being a politician, of being able to network, have people that will help and support you, people you can reach out to and get advice from, people that can do a favor for you, and I mean an appropriate favor, not ruling for you because they’re your friend, and to bring you business. Because, you know, private practice of law is supposed to be a profitable enterprise. We did this because we want to help people, but we want to make a living just like a carpenter, or a truck driver, or a doctor, or a stockbroker does.
And so, what I concluded was that, of those three skills, if you have any two of those, you’ll do all right. Maybe if you don’t know the law that much but you’re good in court and you’ve got a lot of friends, you’ll do all right. Or maybe if you’re really smart and you’re not very good in court, but you know a lot of folks, you will. But if you want to be a great lawyer, you really have to do all three of those, and you have to do all three of those pretty well, I think.
Scott: It’s like all the tools you need to be a good baseball player. It’s the same kind of thing.
Lester: Exactly. You know, in fact, that’s, sort of, where I got the idea from, was that baseball players talk about a five-tool point, you know, which is, I think it’s, it’s speed hit, hit for power, field, and hit for average, I think. And so I think it’s a very, very similar thing with lawyers, that you’ve got all these different components or vectors that you have to, sort of, hit on it, you know, for all the times. Now, that might not be true if you’re a real estate lawyer or if you’re a municipal bond lawyer or something, but it’s certainly true to be a trial lawyer.
Scott: And have you practiced, or has your home office been, or your main office been in Cartersville your whole career?
Lester: No. When I was in law school, I clerked for Smith, Gambrell & Russell, and for a smaller firm, Savell & Williams and I got job offers for both of those. I took the job offer with the smaller firm because I felt like it would enable me to get into the courtroom sooner. And then that firm, sort of, split into Goodman McGuffey. It was Goodman McGuffey, Austin Lindsey at the time. And I was one of the original five lawyers that went with them when they left the other firm. But I, kind of, told them, I said, “You know, I really want to practice law, probably, closer to home and in a little bit different setting. And so I’m happy to go with you, but I’m not sure I want to keep doing that year after year.” So I was with them about a year and I had a pretty good client that liked me who was the power company and they were building a big dam up in Rome and it was the largest construction project east of the Mississippi. And I was basically defending them in tort cases and workers’ comp cases. I decided it was probably a pretty good time if I wanted to go hang out a shingle to do it. And so I left Atlanta, came to Cartersville. I went to my now partner, Morgan Akin who, his family had been practicing law up here for a long period of time. And he rented me an office for $328 a month, I remember, and I had a part-time secretary so I hung out a shingle. And he gave me this upstairs office, it’s on the public square, it had built in bookcases. And, Scott, it was about the time that John Grisham’s “A Time to Kill”…
Scott: I was just thinking about “A Time to Kill” when you were describing your office.
Lester: Yeah, yeah. And so, you know, I went up there and he said, “Well, I’ve got this office up here. Let me take you up here.” So I felt like I was Jake Brigance going up the stairs to the Wilbanks law firm, you know, to get my… And I saw the place and felt like I had immediately, sort of, found my home. And so for about five years, I was just a solo practitioner up there. I did court-appointed state criminal work, court-appointed federal criminal work. I had a few retained cases there, did plaintiff’s personal injury, did divorces. I’ve jury tried about 100 cases, and I think 3 or 4 of those have been divorce cases that I tried. I defended the power company. So I had just about every case, you know, you can, kind of, imagine. And the Akin firm had been there since 1836. It’s the oldest ongoing law firm in the state of Georgia. And so, Morgan, sort of, got after me just to merge our practices. And we did that in 1996. Really, now he’s semi-retired so, somehow, without ever having a lawyer in the family, I’ve managed to inherit the oldest law firm in the state of Georgia and continue to do a lot of those things, although not divorces unless it’s something particularly odd or interesting, you know?
Scott: Yeah. I’ll only do those at the appellate level. I don’t, generally, as a rule, do those at the trial level so I can understand why you wouldn’t want to do that. So, I guess, that would make Mr. Akin your Lucien Wilbanks then?
Lester: He would, yeah. See, he hasn’t been disbarred, but…but I’ll tell you, and going back to, sort of, one of the things you asked me about earlier about geography, you know, Morgan is semi-retired now. He only comes in a couple of days a week so it’s really, basically, my show, you know, now that’s going on. But Morgan was a fourth-generation lawyer, and he got accepted to Harvard Law School. He turned Harvard Law School down because the University of Georgia not only accepted him, but they gave him a full scholarship where they paid him tuition, room, board, and a stipend. And he wanted to practice law in Georgia. Harvard wasn’t going to pay for him to go there, you know, they’re going to charge him the full freight. So he decided, you know, to go to Georgia, graduated second or third in his class, came back to Cartersville. So there is a high caliber to the bar, in my view, as high caliber as there are in just about any big firm that you wanted to go to, you know, in the state of Georgia, or for that matter, New York, and we’ve always tried to hold ourselves to the higher standards.
Scott: Now, I know that there was a period of time where, I know that you were the state bar president several years ago. And then, I think, was it after that, that you were the chair of the JQC?
Lester: I was. I got on the JQC at the end of my bar presidency. I think they overlapped about six months and then I eventually became the chairman of Judicial Qualifications up until…when the legislature wanted to politicize that, I did not want to be a part of that and so I decided to leave at that point. So it’s, kind of, funny, I was the chair of the… And, you know, for your listeners, you know, Judicial Qualifications Commission oversees judicial ethics and judicial discipline for judges. And I went to one meeting as my last meeting I chaired and I left. And I had a judge who an issue arose in between. And I think I actually went back to the next meeting representing the judge. And I have to tell you, and I think this is one of the big things that, maybe, younger lawyers confront, some folks are very comfortable, thankfully, and I admire these folks are very comfortable, sort of, sitting in judgment, you know, of other people, and, you know, making decisions, and we need people to do that so, again, they have my highest commendations, but I think I realized that probably wasn’t what was cut out for me. I’m an advocate, you know?
And that’s just, sort of, the way I was born. And I felt more at ease sitting at the other end of the table representing the judge than I ever did being the chair of a commission of inquest, you know?
Scott: But you were chair of the JQC, or, at least, I think, maybe this started before you were the chair, I distinctly recall, you know, a period of time back around ’15, ’16, right around in there where, probably, the JQC was more active in Georgia than I’ve known it to be since and that I’ve heard that it was before. I mean, it was a pretty active group at the time.
Lester: It was very active. It was one of the reason I accepted the board of governors election of me to that body was because I felt like it was very active and I felt like they were doing some good work, albeit, everybody like that makes mistakes and has growing pains. And what a lot of people don’t realize about the Judicial Qualifications Commission, you know, most agencies or bodies that have initials, you know, have a lot of resources. The FBI, the CIA, the GBI, you know, have a lot of resources but the Judicial Qualifications Commission was created by the Georgia constitution, I think, it’s the ’83 constitution. And we had one full-time administrative person at the time I was there and, you know, would contract out for investigation, but we didn’t have a lot of resources to devote stuff so there were a lot of, sort of, growing pains with it.
But I think what happened to our Judicial Qualifications Commission, and really one of the reasons I was not interested in, you know, remaining the chair is that the legislature got involved with it. And the legislature, whereas before, you had three members that were elected by the bar, and you had the Supreme Court had appointed two, and then you had a lay person that was appointed by the governor, or I think, two lay people that were appointed by the governor, well, the legislature wanted to take over all of those and exert political influence over a body that’s supposed to be neutral and sitting in judgment of the conduct of judges. Yet, you know, judges are some of the most powerful people, and, particularly, individual judges in different counties. I remember when I was bar pressed and I went down to Albany to give a speech one time and I was talking to a former Supreme Court judge, and he was talking about the late great George T. Smith. I don’t know if you remember George T. Smith?
Scott: I’m familiar with the name but he’s a little before me.
Lester: He served in every branch of government. He was in the legislature, he was on the Supreme Court, ultimately, and he was the lieutenant governor at one time too. So, anyway, George T. Smith had passed away. And this judge said to me, and I’m telling you this because I think it’s indicative of the power of Supreme Court judges, he said, “Well, I went bird hunting with Justice Smith. And I called him Justice Smith and he says, ‘Oh, so don’t call me Justice Smith,’ he said, “I’m just George T.'” And the judge said, “Oh, you’re a very important judicial official, you’re on the highest court in the state.” And he said, “Listen,” he said, “I’m not important.” They had, you know, seven members at that time, so it took four, you know, to be in the majority. He said, “I’m not important.” He said, “You,” he said, “You sit at a divorce case, you can take a man’s kids away from him, you can take his house away from him. Criminal case, you can send him to the penitentiary, you can send him to be executed, you know, in some instances.” He says, “Hell, I’ve got to get three other jackasses to go along with me.” And, I think that really does speak to the fact that, you know, when you talk about judicial discipline and what’s going on out there, you’ve got a group of people who have wide authority to do a lot of different things. And there’s no group of people anywhere that I really believe need to have unfettered authority. And I think the JQC conducted a lot of investigations and did a lot of things that were helpful towards making sure that that power was actually exercised properly instead of improperly. And you don’t see as much of that now because it’s been politicized.
Scott: Well, I think even beyond the ethical component of what the JQC did in that era, I think in a large part, the JQC’s work in that time modernized the Georgia bench because I think there was an element of quality control to what happened. You can go into…there’s one circuit in particular where our practice frequently, I feel like it’s a modern court system and when I first started practicing in this particular circuit, it wasn’t. You mentioned in a statement you gave to the press, I think, maybe, toward the end of your tenure with JQC, “If you go into court now and the judge doesn’t even consider your side, the judge violates the rules of ethics. You need to have a place that will judge the judge. In the past 8 years, the commission has removed more than 60, that’s 6-0, 60 judges from the bench. I think that you can’t overstate the value of having an independent commission that will look into these citizen complaints.” And so, really, I mean, you take a process that removed 60 judges over a fairly short period of years, I don’t know that there’s ever been a time in Georgia history where there was that level of activity, you know, with judicial ethics.
Lester: I agree with that and I still believe, you know, what I said back then. It’s funny, I was actually in court yesterday for the first time actually live in court like it used to be since the pandemic has struck. And the judge, you know, as we’re getting ready to go on the record and all this, and he was talking about COVID cautions, he goes, “No, I don’t want to get in trouble, you know, with the JQC.” And he said it, sort of, jokingly. And he wasn’t doing anything wrong, you know, there was nothing there. But my point is that, I think because of what happened before, that it certainly made judges realize that there’s somebody out there watching, you know? And people who exercise vast power, I think, do need to know that there’s somebody watching, you know, when they take particular steps.
Scott: Well, it’s disheartening as an advocate, I mean, or it used to be, there was one judge that I would appear in front of that was removed during that period of time and I would…
Scott: You know, your client who hires you puts a great deal of trust into you, and, you know, both sides, ideally, work very hard to put on their case. And, you know, I remember this particular judge, I was in front of him, it was in a motions hearing, and I had an expert on the stand, and we had prepped that expert and the family was there and, you know, we put a lot into our case, and I remember this judge…and I wasn’t doing anything…you know, I was being very professional and, you know, prepared, and I remember this judge had a big high back chair up on the bench. And while I was questioning my expert, the judge swiveled his chair around and turn his back to us for the whole witness’s examination, and then swiveled his chair back at one point when his secretary brought him a Coke. And he popped the Coke open and started drinking it up there on the…
Scott: You know, and I don’t expect that the judge is going to be in suspense. And, you know, I’m sure judges, kind of, often know what they’re going to do when they go out on the bench and, you know, make their mind up. But there is an element of, just like we owe the bench professionalism, we’re owed professionalism as advocates and the clients, whether it be, you know, if your client is a power company or if your client is an indigent criminal defendant, is owed some level of respect.
Lester: I think that’s absolutely true. You know, your day in court means something. You know, it’s supposed to mean something. And I’ve heard it said that every lawyer, you know, when he hits the courthouse steps to go in and try his case, every lawyer thinks he’s got a winner, you know? But every judge…no judge should really have their mind made up about any case when they hit the courthouse step. You know, they’re supposed to go in there and, at least, sort of, hear you out. It’s one of the things that, in a peculiar way, bothers me when I look at the federal judicial confirmation things when they talk about, you know, “We’re confirming a lot of people who haven’t said a whole lot about particular areas,” you know?
And, you know, but that’s, in fact, become a, sort of, model, “If you want to go on the federal bench, don’t say anything about anything that’s controversial, because, you know, we’re going to know what your views are.” Well, you know, really, and truly, what you want is not people that haven’t said what they think, but people who are not willing to let their prior thinking interfere with what decision they reach based on the evidence once they get in the courtroom. I think that is such an American value. And I’m sure, in your case, Scott, how do you explain that you and I are supposed to be advocates for our system? And I do believe, you know, it’s like democracy, it’s the worst system except for all others, you know?
I mean, there’s problems with all of it. But, you know, how do you go back and explain to that family, “Well, you know, yeah, this is a great system, you know, but the judge, yeah, I know he didn’t allow…turned his back on us, didn’t listen to us and anything else, but, yeah, you know, you got your day in court?” It just doesn’t work.
Scott: I turned to my opposing counsel after I’d finished my closing and said, “Do you want to argue,” you know?
Lester: Horrible, horrible, horrible, horrible.
Scott: Right. So, yeah. You know, and that’s a very tough…
Scott: And that’s the beauty of our system when it works well. And if there’s been one branch of government, without getting too political here, that has worked very well in the past, you know, month and a half, it’s been the judicial branch. And what’s amazing about it is, I’ve been following all this election litigation, and it’s the branch, and it doesn’t matter who appointed the judge, it doesn’t matter who confirmed the judge, a lot of these cases are appearing in front of people who were appointed by the President bringing the case or people on behalf of the President. And what you get is, not only a clear decision, but you get, in writing, an explanation of how that decision was reached. And, ideally, even when you lose, you should be able to tell your client, “Okay, here is why you lost, here is what the judge thought.” And I think when the system works, it works like that.
Lester: Yeah. And I think too, you know, and I’m interested, sort of, in your view on this, Scott, and I’m not trying to be overly political here, but the Trump folks are the ones that have gone, oh, for 38 or 40, wherever we are right now. Some people are, sort of, outraged that, “Well, this is a judge that President Trump appointed, why is he ruling against President Trump?” And to me, you know, this idea, that the public has this idea, a wrong-headed idea, I would add, that because somebody appoints you, you’re going to rule that way, so that’s why we want to let this president, whether it’s Biden, or Trump, or whatever, they’re going to appoint judges that are going to, you know, rule my way, and that’s just not the way it’s supposed to work, you know?
Lester: And it’s not the way it works. And, you know, these folks that…you got as good a shot at getting a fair shake out of a Trump judge as you do an Obama judge, or a Jimmy Carter judge, there’s, maybe, still one or two of those around, or a Biden judge in the next administration. It’s supposed to be the only branch of government where might does not make right, you know? It’s not politically picked.
Scott: If there’s one thing that has kept me from just completely losing my mind watching the news in the past month and a half, it’s been the way the judicial process has stepped up.
Lester: Yeah. I have to say I think the rule of law is standing pretty tall, you know, right now. And, you know, I disclosed, well, I don’t know that I said political parties, but, you know, I started out working for Democrats. So I’ve been chairman of a local Democratic Party, I’ve got lots of Republican friends, and I’m not so… You know, there are a lot of things that Republicans have done over the years that I fully supported and those I didn’t. And I tried to look at the issue, you know, as opposed to anything else. But you’ve got to look at our secretary of state, you know, who is a Republican, and our governor who is a Republican that I probably, you know, have a lot of political differences with. And certainly not on their campaign teams or anything else, but they’ve displayed, in my view, tremendous respect for the rule of law. You know, the governor is having to tell folks, “I can’t just call a session of the legislature to overturn the will of the people.” And, you know, what’s discouraging about that is that a governor even has to explain that, you know, to somebody but it’s there nonetheless.
Scott: What do you think about, and I don’t want to put you in a position where you’re commenting on any particular person.
Scott: But what do you think about the way… I mean, I know that when you stepped down from JQC and, you know, I’m looking at your letter and what you said about what was happening to JQC at the time was, “What we’ve seen here is legislators that have come forward and just said point blank to folks, ‘We don’t like the way you’ve treated judges that we like, and for that reason, we’re going to abolish you,’ a system that only disciplines judges who are politically unpopular and does absolutely nothing to judges who are popular isn’t a very fair system.” I mean, I do think that there has been a tremendous amount of momentum, and I do think the judiciary is as a whole better for the work that the JQC did in that period of time. What do you think about judicial ethics or the process of, I guess, adjudicating judicial ethics complaints and the time since the legislature did what it did to it?
Lester: Well, I think what’s going on is not the prosecutions that you see brought, but the ones that you see that are not brought, you know? And there’s no doubt, but that that has fallen off since we left. And one of the other things that I said in that letter that I think I have to highlight in answering your question is, you have the governor’s office, sort of, messing in who they were appointing. We had an investigator that we were about to get rid of, and the governor’s office appoints him to the commission. You had legislators who were upset because their judges, who were elected officials, came and complained to them about the JQC. You even had…and I think if you know anything about me, you know, I try to, sort of, shoot straight and tell you the true facts here, even the Georgia Supreme Court, you know, issued an opinion. There was a case out of the Cobb County, went all the way to the U.S. Supreme Court says you’ve got to have open courts. We were getting complaints from all over the state about, just like you were talking about the family of your client being there where somebody had driven all across the state to be with their loved one or family member at a time they had to appear in court and the courtroom is closed. Well, U.S. Supreme Court said, “Open courts. You’ve got to have open courts.”
When I was on Judicial Qualifications, we wanted to just, sort of, I’ll say, tap judges on the shoulder and remind them of this opinion. So we put out an advisory opinion that said, “Courts have to be open. And if you’re not keeping your court open, you’re violating the law.” We received, from the First Amendment Foundation in Georgia, their annual award. We had a banquet, you know, dinner where most of the Supreme Court or majority of the Georgia Supreme Court came and feted us for issuing this opinion, just reminding judges, “You know, you’ve got to keep the courtroom open to the public.” Later, a judge who was, sort of, unhappy with it, he writes a letter, I kid you not, to the chief justice. And they decide they want to just suddenly review…I’ve never known a Georgia Supreme Court to review something based on a letter before, you know? But they said, “Oh, we’re going to review this.” And then at this, about 50-page opinion, the Georgia Supreme Court essentially, and they made it, as I recall per curiam which meant that none of them had to really put their name to it, you know, although, I’m pretty sure I know who wrote it but, you know, say, you know, overturning this advisory opinion that we put out for the sole purpose of just trying to make sure that people had access to the courts.
Now, I tell you that to say that whether it’s the Georgia Supreme Court, whether it’s the Georgia Legislature, whether it’s the governor, there are powerful forces at work to try to protect people within their purview, people that come and complain to them. You know, I’m not talking about anything other than, “You know, I’ve had complaints from these people, these are people I like so I want to change the system and influence the system for them.” I think the founding fathers who did not create the JQC but created a much more intricate government, saw that that self-interest is always going to be there, you know?
The self-interest is always going to be there. The reason the Supreme Court did what they did with this opinion that they had gone and celebrated us was because some of the judges complained about it to them. You know, that’s what happened. I know exactly what happened in that case. But my point is that all those conflicting interests, there’s supposed to be checks and balances on that. And we had a check and balance on that which was that the Georgia Constitution said that the Board of Governors of State Bar of Georgia put three lawyers on there, you know?
Three lawyers who, in my experience, actually knew more about what went on in courtrooms across the state than judges. You know, a funny thing, judges never go in other judges’ courtrooms.
Scott: Right, we see it all.
Lester: Yeah. And, you know, in fact, when I was on the commission and we had judges on there, one of the judges on the commission might say, “Well, I would never do that.” And the lawyers would say, “Well, every other judge in the state does it this way.” So there are powerful interests at work, you know, sort of, both ways. And I felt like that we had a pretty good balance with that. The fact that some people didn’t like it probably means we were doing our job, you know, a little bit. And so the system that we have right now is, I don’t think, anywhere near as effective at that. And, you know, interestingly too, with the COVID situation, you know, you now have…in some of these orders that the Supreme Court has put out since then, they’re telling judges, “Oh, now, if you don’t do what we say, you could be subject to judicial sanction.” All of which is fine, but, you know, no less important than COVID was the issue of open courts and they didn’t want to interfere with that, you know?
Lester: So it’s often a question of politics.
Scott: I feel like with that COVID stuff, it, kind of, reveals just how there isn’t really a centralized system or a uniform system of what you’re supposed to do. Because for the most part, I’ve been doing court via some sort of video conferencing whether it be Webex, or Zoom. But then there are some of these outlying counties that just insist still that you come in for pretty routine things that you don’t really need to be herded into a room to do. And I know that there were a couple of judges that were, even at the height of the emergency order, that were trying to send out jury notices and stuff like that. So it does just seem like it’s a little too decentralized. And I don’t know if it’s just the COVID thing or if just the COVID protocols or lack thereof, if it just highlights the lack of, you know, a centralized, uniform way to handle things.
Lester: I think it does. And I think in some instances too, I don’t think that, you know, in some of the rural counties and whatnot, you know, the judges don’t have… I’m not being critical of them because I don’t think they have the resources to actually, you know, like, go employ an epidemiologist and find out, “Could we run a jury trial this way or whatever?” I mean, you know, that’s one of the reasons we have various levels of government. You know, the County Commissioner is not going to be able to protect you if Spalding County gets invaded, you know?
Lester: We’ve got the federal government for that. By the same token, President Trump is not going to give you a variance to build a hog farm in Spalding County. So, you know, the different levels of government have different resources. But I think in a lot of ways, you know, the Supreme Court judges and the State Court judges out there trying to have trials, trying to get back to normal, I’m not sure they have the resources, the input, you know, to make the plans that they need plan…you know, that they need to do that. And that’s unfortunate, but, you know, the state does have to have, sort of, a role in that, I think.
Scott: I mean, it’s one thing to make us, the lawyers, come in for certain things, or to summon the client in, but I think it’s a whole other level when you start forcing penalty of going to jail, or being charged with a crime, or being held in contempt when you start forcing members of the public to come in to be packed into a court in the middle of a pandemic to serve on juries.
Lester: Yeah. You know, I will tell you that one of the things that I’ve… And I want to say too, I want to give Justice Melton and the court pretty high marks for what they’ve done, you know, with trying to get instructions out there for the judicial orders that they got out there. So I’m talking of issues and not personalities.
Scott: Right. Right.
Lester: You know, the Supreme Court, the Court of Appeals are still doing Zoom arguments.
Lester: And, you know, they want to tell jurors that they’ve got to actually show up? You know, I think that’s not going to sit well with some members of the public to tell them, “You’ve got to show up. You need to come down here and hear this case, but, yeah, we’re going to do ours via Zoom while we’re sitting at home and where we’re at no risk.”
So I think one of the other issues that we’ve got to look at, I’ve been a little bit shocked that not more lawyers are interested in looking at having trials via Zoom, Webex, that kind of thing. My observation is, the people who are generally against it are criminal defense lawyers, of which I do a fair amount of criminal defense so I understand that, you want somebody there that has compassion for your client, and also, civil defense lawyers. You know, and I’m a plaintiff’s lawyer for the most part so I’m mitigating against those, but I think the natural momentum there is, criminal defense lawyers and civil defense lawyers are trying to preserve the status quo, “My client is not in jail and I don’t want him to go to jail. My client has not had to pay any money in the civil sense, and I don’t want him to have to pay any money.” But I think we probably have people that are smart enough, they could figure out a way to do some virtual trials in certain sorts of cases, and, maybe, making some accommodations one way or another, for example, in the civil arena, you know, and, I guess, in the criminal arena too. You know, would you have a Zoom trial if you knew your client wasn’t going to go to the penitentiary? Would you have a Zoom trial, if you are a defendant, if you knew the insurance company, you know, wasn’t going to have a high-low agreement where their verdict was only within the policy limit?
Lester: If you can lower the stakes, in other words, if there’s no…
Scott: Yes, yeah, if you can lower the stakes and find out what’s going on. But the alternative to that that I see most proposed is, “Oh, do you want to have a bench trial?” And I don’t know of any area other than divorce cases, that bench trials have flourished, you know? And I really think that having public input in the form of a jury is so important as opposed to just all, you know, “We can’t have a jury trial so we need you to go and do a bench trial.” There ought to be some alternative to that that still gets that public input.
Lester: If everybody could potentially agree that these are the parameters, and these are the terms where you could make it work for everybody to, sort of, make some agreements to have a jury trial over Zoom, I think it could work. You know, first of all, I hope this pandemic is over as soon as it can possibly be over.
Lester: But I’ll tell you, there’s a lot that I think we can take from this that I hope that when this is over, we don’t go back to a system where we have to wake up at 5:00 in the morning to drive four counties away so that we can say, “Ready for trial, Judge,” and then leave.
Scott: Right. You know, yeah, the calendar call, I hope goes the way of the dinosaur. And, you know, they used to…this was before I started practicing, but I am told, at one time in Bartow County, that they’d have a criminal trial week, and every person accused of a crime had to appear, and their lawyer had to appear. So they would, maybe, start a trial, and they would keep everybody else sitting there waiting in case that case, you know, play it out or whatever and then they did another trial. And then they got where they had stopped the trial and they’d have a calendar call, if somebody weren’t there, they’d issue a bench warrant. And then they’d be in jail and, “Well, we’ll let you out if you’ll plead guilty,” you know, kind of thing. And that’s, sort of, the dirty history of calendar calls and, “Oh, you’ve got to appear,” and, you know, that kind of thing. I think one of the reasons they want to do calendar calls for criminal cases is so they’d make sure that the defendant hadn’t skipped bail, you know, and gone off someplace. But even that’s more rare now, I think, just because of cell phones, everybody has got a cell phone, cars, license plate readers, you know, there’s not very many people that are skipping out not to be heard from again, you know?
So it’ll be interesting to see if it does, in fact, die.
Lester: Well, changing gears…
Lester: …kind of, completely. So, suppose that I’ve got a listener who is just getting started practicing law, like, maybe, has just started their office. They’re, kind of, where you were when you got shown your upstairs office on the Cartersville square. And they’re wanting to get into some personal injury litigation.
Lester: They want to break into that and figure it out. What advice do you give to, you know, a lawyer in that situation? That’s a very broad question, I know.
Scott: It is. But the first thing that comes to my mind is that you need to get out in the community, and you need to, you know, get out, get involved in the community to the extent that, if they were running for Congress, they’d be out going to events, and talking to people, you know, and that kind of thing. They’d be going to party events, you know, or party caucuses, and stuff like that. And so, for a trial lawyer that wanted to do that, I think, unless you’ve got a lot of money and you want to get in the high-end advertising, billboard, TV business, you’re looking for a referral practice. And so, what you want to do is reach out to business and community leaders, and to get them to send you business, and to have confidence in you, and to have confidence in your judgment.
So I remember when I was at that stage, you know, I was at some chamber of commerce picnic or something and there was a bunch of politicians. There was somebody who said, “What are you running for?” And I said, “I’m running to be your lawyer, that’s what I’m running for.” And I think, also, to hit the other things that I talked about with regard to, you know, there are groups like Georgia Trial Lawyers Association which I’m a member of, Georgia Criminal Defense Lawyers, you know, which, I think, you were president of…
Lester: I was, yeah.
Scott: You know, those organizations provide tremendous support to people who are in those organizations. I’m talking about support in the form of seminars, resources to find out, you know, other people’s writs, other orders that judges have issued, those kinds of things, and to train you to really be a good lawyer as well as getting referrals. I mean, you know, I get three or four calls a week from somebody that needs a lawyer someplace. And, you know, it’s not always the kind of case I handle or whatever, but I think getting involved, both in your community, whatever community you want to hang out a shingle in and in your profession, be it through the state bar, or GTLA, Georgia Association of Criminal Defense Lawyers, those groups, that’s the way to go.
Lester: Treat it like you’re running for office…
Scott: That’s it.
Lester: And then use your professional organization to learn how to do the case and to get the referrals from there as well.
Scott: Yes. Yes. And one other thing I would say is get a good mentor, you know?
And I’m going back again to what I said about Buddy Darden. He was the kind of guy I could call, I pick up a phone to call, and, either, if he knew, he would tell me, if not, he could tell me somebody else that can help me with that particular situation, that case, give me some advice on it, that kind of thing.
Lester: Well, I also know that one of the areas of law that you handle is, you actually represent your fair number of lawyers. You do some attorney discipline cases where you defend…
Scott: I do. I never set out for this to happen, but I, somehow, got the trifecta of lawyer in judicial discipline because I chaired the investigative panel which is one end of the bar’s grievance proceeding, I chaired the Judicial Qualifications Commission. I never chaired the review panel which is, sort of, the other end of the bars, but I did serve on the review panel so I served on all three of those. And I like lawyers, I like to represent lawyers. I’ve represented lawyers in a lot of different situations. Not all of them are bar grievances. I was in court yesterday representing a lawyer that another lawyer was trying to claim, you know, attorney’s fees against and that kind of thing so I’ve done a lot of that. And I’ve represented a lot of judges too. I’m proud to say I’ve had a lot of judges that have come to me that I’ve been able to help. I really like doing that because in the environment that we’re in right now, you know, lawyers and judges become targets very easily, you know, for people who are unhappy with the outcome of the case.
Lester: What are the patterns, like, if there were cautionary tales…and, you know, I’m not trying to get into anything, you know, privileged, but if there were just, sort of, themes or lessons that you have taken from representing judges and representing lawyers, what sorts of things do you see that, sort of, maybe, brought people… You know, I can speak of this from, you know, criminal defense. And, I guess, probably even in the civil process, a lot of my clients are not bad. If there were a crime called poor judgment, that’s really what it, kind of, falls under. What are some of the themes or some of the issues that you see that arise that, sort of, get those cases, you know, get people in trouble?
Scott: Lack of objectivity, I think, is one of the top ones. That’s particularly true for judges. You know, where you let your emotions get in and, sort of, take control. And a lot of the cases I had with judges involved, they got some lawyer that’s, sort of, semi misbehaving in front of them, or they’re irritated, or whatever, and they, kind of, fly off the handle and it blows up in their face, you know, even though they didn’t start it. I see a lot of lawyers that they get that… You know, every lawyer I know has had that one or two cases in their career that they just really let get under their skin, you know? And it was, sometimes, who the opponent was, sometimes who your client was that you cared that much for them, but you got to the point where you were taking everything personally. You know, it was all personal and it pushes you toward this win-at-all-costs, sort of, situation. And so, I think that’s one of the biggest things. I think sole practitioners get in trouble more because a lot of times they don’t avail themselves of a mentor or of their colleagues in, you know, GACDL, or GTLA, or the state bar to try to bounce things off of, you know, because we all have bad ideas too, you know? And I hope I’ve got enough sense, when I have a bad idea to, at least…you know, or maybe I’ll get on the phone to Scott and say, “Scott, what do you think about this?” You say, “Lester, that’s a terrible idea. Don’t do that. You’re going to get in trouble.” And so I think that’s one thing.
We do see a lot of…I will say too, the number one cause of disbarment still is not keeping your trust account business separate, you know, or lawyers that take from their trust account, or whatnot. And most of those lawyers are lawyers who, they’ve already gotten into trouble, they’re compounding the trouble at that point. They’re either, you know, they have substance abuse problems, they have psychological problems, sometimes depression, they hadn’t tended their business, you know, whatever else, they’ve let their lifestyle really…they’ve overleveraged themselves, you know?
And as a result of that, you know, they let the financial concerns overcome what they know to be the ethical rules and that kind of thing. But generally speaking, that’s the kind of stuff we see.
Scott: Well, how have you kept it together so well all these years? I mean, you’ve done some pretty high-stakes things, and been chair of JQC, and I see you’re pretty active on Twitter, and all of that. And I know that you’re pretty heavily involved in…I know, like, with the, at least, with the Democratic Party in your area.
Scott: How do you keep sane in all of this?
Lester: Yeah. I don’t believe those folks who say… I enjoy my job so much, I’ve never not wanted to get up and go to work. Because, generally speaking, that’s just not true. I have a very vivid memory of being in the middle of defending a client at a drive-by shooting case with a judge that was pretty hostile to us. And I took my kid, my kid was in elementary school, took him to elementary school and I’m driving back to go to the courthouse for about the third day of this trial, and I see these guys at the dairy farm going out in the pouring rain to feed the cows, carrying bales of hay. And I vividly remember thinking, “I wish I were doing that instead of going down to the courthouse today.” But…
Scott: Because they’re going to go home and, like, they’re not thinking about those cows.
Lester: That’s exactly right, exactly right. So that’s my caveat, that’s my caveat. But I love what I do, and I feel like that one of the things that I’ve, sort of, strived for in my life is to integrate it. And if you think about the word integrity, it means integrated, that you’re the same person, you know, all the time. And so, I get accused a lot, “You know, Lester, you don’t take a vacation, you’re always going to a bar meeting.” Well, I’ve gone to a lot of fun places for bar meetings over the years, I’ve met a lot of people that I enjoy spending time with, I’ve gone on CLE, Continuing Legal Education, things down to the tropics, several years, I’ve been to multiple states all over, next year I’ll be the president of the Southeast American Board of Trial Advocates Chapter so I’ve traveled a lot with them. I like what I do. I like representing people out, I like going to court. Yesterday, I got to court, like I said, for the first time, and to cross examine a live witness for the first time in, you know, six months. I’ve done it over Zoom but I just hadn’t done it in court in a long time. So I like what I do, and I think, liking what I do is, kind of, what’s kept me going. I don’t really want to retire. I want to… You know, my friend and mentor Bobby Lee Cook is 93, I think, and still going to the office. And, you know, if the good Lord lets me hang around that long, I hope I’m still doing that too because I like what I do. I don’t love it every day, but on average, I’ll say, you know, 28 days out of 30, I like it.
Scott: Oh. Well, that’s great, that’s fantastic. Well, I really appreciate you taking some time out of your day to talk to me on this fledgling podcast of mine. I’ve really enjoyed it.
Lester: Well, I have too, Scott. And thank you. And thank you. You know, you’re a great lawyer and you’re a credit to our profession, and doing things like being the president of Georgia Association of Criminal Defense Lawyers, which I think is just an outstanding organization, not just for our profession, but for the public at large too, because you’re standing between people’s liberty and the awesome power of the state or federal government. But thank you for doing that. Thank you for inviting me on today and letting me blab on about what I think, which, you’ll still need $4 at Starbucks to get a cup of coffee with if you take my opinions down there.
Scott: Well, if people want to find out more about you, where can they go? Like, if they want to check you out on Twitter or your website, where can people find you?
Lester: Sure. I’m on Twitter @LesterTate, capital L-E-S-T-E-R, capital T-A-T-E. We’ve got a website, it’s Akin, and you can Google, Akin & Tate in Cartersville. Although, we have, you know, sort of, a statewide practice. And, you know, I’ve got my email address and all that sort of stuff on there too. Also, on Facebook, I get kidded because I’ve got almost 5,000 Facebook friends, but most of those are friends, clients, referring lawyers, you know, people like that. You know, you don’t have to be my bosom buddy for me to let you follow me on Facebook if you want to do that.
Scott: Oh, yeah, I’ve read comments on Facebook. You have friends on Facebook that run the full political spectrum.
Lester: Yes, oh, I do, I do. And it’s, kind of, fun, you know, actually, you know, to see it on there. And, you know, that’s the other thing, you know, I feel like we’ve become very hardened in politics sometimes. And, you know, I’m, unashamedly, you know, a Democrat, but most of the people I represent are Republicans, you know?
And, you know, there’s no Democratic and Republican way to practice law, you know, out there. And so I’m proud to have friends that are different races, creeds, colors, different political beliefs, different religious beliefs. And I think that that’s one thing that puts…you know, that the court system is where folks come together regardless of what their predilections are to try to do right and do justice.
Scott: Well, I really, really appreciate it. Thank you so much.
Lester: Thank you, Scott.
Scott: Thanks for listening to “The Advocate’s Key.” For more information and content like this including a transcript of this episode, be sure to visit scottkeylaw.com, and please rate, review, and subscribe to the show wherever you get your audio content.