The dominant event during this surveyed period' is not an event at all. It is instead a struggle so pervasive that its lurking presence is felt behind every important case and Formal Advisory Opinion ("FAO") decided this year. This struggle is between the two primary functions that the Georgia appellate courts perform in this area of law: the normal judicial function and the regulation of the legal profession. This second function is a legislative and an interpretative one. Appellate courts in Georgia perform the interpretive function in both an advisory capacity through FAO's and in a judicial capacity through case law in which the courts profess to be relying upon rules, ethical regulations, and other norms applicable only to lawyers.
I have described this dominant event as a "struggle" because these two functions create what one author has described as competing hierarchies. The governing norms of the profession are usually shared, Koniak tells us, by which she means that there is little quarrel between the functions over who and what governs lawyers. But each function orders these shared norms very differently. For example in the regulatory function, appellate courts place the ethical standards of the profession very high in the hierarchy of governing norms, while in the judicial function these same standards are typically placed very low.' Usually, these functions overlap and when they do, and when the courts recognize the overlap, each function demands that its particular ordering be honored. So a struggle ensues.
Sammons, Jack L.
Mercer Law Review: Vol. 46:
1, Article 11.
Available at: https://digitalcommons.law.mercer.edu/jour_mlr/vol46/iss1/11