CREMINS et al. v. THE ATLANTA JOURNAL & THE ATLANTA CONSTITUTION et al.
S91A1152
Supreme Court of Georgia
July 3, 1991
Reconsideration denied July 24, 1991
405 SE2d 675
FLETCHER, Justice.
Parker, Hudson, Rainer & Dobbs, Rufus T. Dorsey IV, Armando L. Basarrate II, for appellants. Dow, Lohnes & Albertson, Terrence B. Adamson, Peter C. Canfield, James A. Demetry, Michael J. Bowers, Attorney General, Michael E. Hobbs, Senior Assistant Attorney General, for appellees. Alston & Bird, Judson Graves, Paul J. Quiner, Daniel A. Kent, amicus curiae.
This case arises out of a request for the production of certain documents made by appellees to three Georgia Tech athletic coaches pursuant to the Open Records Act,
We find that this case is controlled by our decision in Dooley, supra, and that the trial court, with one exception, properly considered all of the factors set forth therein in reaching its decision. The trial court held that both a consultant appearance contract and a consultant contract between Cremins and Nike were public records. The latter contract clearly is governed by the Open Records Act, however, the former contract is not. In Dooley, referring to a consultant appearance agreement at issue in that case, we held that:
It obligates the coach only to make speaking appearances on behalf of a manufacturer. Standing alone, a contract to speak on behalf of a third party — unconnected with and not in conflict with the performance of an official duty — relates to a private activity, and is not a “public record.”
(Emphasis in original.) Dooley, 260 Ga. at 582. In Dooley, there were two contracts with the same manufacturer just as there are here: a consultant contract and a consultant appearance contract. We have compared the consultant appearance contract involved in Dooley with the Cremins’ consultant appearance contract and find that the two contracts are virtually identical. Accordingly, we reverse the decision of the trial court as to the Cremins’ consultant appearance contract and hold that such contract relates to a private activity, is not a public record, and need not be disclosed. We affirm the remainder of the trial court‘s orders relating to the production of these documents.
Judgment affirmed in part and reversed in part. All the Justices concur, except Clarke, C. J., and Smith, P. J., who dissent.
CLARKE, Chief Justice, dissenting.
I cannot agree with the majority opinion for the same reason enunciated in my dissent in the case of Dooley v. Davidson, 260 Ga. 577 (397 SE2d 922) (1990). I therefore respectfully dissent.
My feelings are the same as those expressed in Dooley v. Davidson, 260 Ga. 577 (397 SE2d 922) (1990). Therefore, I dissent.
REQUEST FOR ISSUANCE OF PROPOSED FORMAL ADVISORY OPINION, REQUEST NO. 88-R7.
REQUEST NO. 88-R7
Supreme Court of Georgia
July 25, 1991
406 SE2d 81
PER CURIAM.
William P. Smith III, General Counsel State Bar, Viola Sellers
The Formal Advisory Opinion Board of the State Bar of Georgia has submitted a proposed formal advisory opinion, suggesting, in part, the following:
It is ethically improper for an attorney to engage in simultaneous representation of the county and private parties in matters adverse to the county. A conflict of interest exists when a part-time county attorney also represents private interests adverse to the county. Moreover, this is not a situation in which it is “obvious” that “adequate” representation could be provided to both clients, and therefore, consent to the representation of the conflicting interests is not available.
We neither adopt nor reject the proposed opinion. The practice of law on behalf of public agencies is too varied and complex to warrant a per se rule of disqualification. At the same time, the potential for conflicts of interest in that practice are such that a purported waiver by a public agency may not be sufficient, in se, to eliminate questions of conflicts.
All the Justices concur.