Georgia's Lawyers of Color: A Tradition of Excellence

By Charles S. Johnson

Reprinted from 100 Years of Atlanta's Black Heritage


The history of Georgia’s African-American lawyers, particularly those who practiced in Atlanta, is marked with noteworthy achievement and distinguished service.  Our lawyers have been excellent as a matter of necessity, and they have constantly been in the forefront of our community’s advancement.

The tradition of excellence was established early.  One of the State’s first lawyers of color was Styles Hutchins (pictured, right)  Admitted to the bar in 1877, Hutchins was part of the appellate team for Ed Johnson, whose eventual lynching in Chattanooga resulted in the first and only contempt citation ever issued by the United States Supreme Court.  Judson Whitlocke Lyons, admitted to the bar in 1884,  served as Register of the Treasury under President William McKinley and is one of the few Americans of any color ever to have his name appear on United States currency.

Perhaps the best-known of Georgia’s early African-American lawyers was Austin Thomas (“A.T.”) Walden.  Born in Fort Valley, Georgia in 1885, Walden graduated from Atlanta University in 1907 and the University of Michigan Law School in 1911 and, thereafter, he established a law practice in Macon, Georgia.  After serving a tour of duty in the army in France during World War I, he relocated his practice to the City of Atlanta.  Walden’s practice was, by necessity, a general one, combining a statewide litigation practice with the representation of estates, small businesses, and African-American institutions such the Atlanta Life Insurance Company and Citizens Trust Company.  He served in a number of positons of civic leadership, and his voter registration efforts were so successful that, for a time, he was marked for death by the Ku Klux Klan.

For a long time, Walden recalls, he was “the only Negro lawyer in Georgia engaged in the full time practice of law.”   Eventually, however, Atlanta became a center for the African-American practice of law in the State.  By 1948 there were at least ten African-American lawyers in Atlanta, comprising three “groups”: “The Walden Group” (including Walden, Charles M. Clayton, E.D. D’Antignac and Rachel Pruden Herndon), “The Henry Group” (including T.J. Henry, E.E. Moore, Jr., S.S. Robinson and R.E. Thomas) and two “independents” (J.E. Salter and T.W. Holmes). 

The accomplishments of these and other early lawyers of color were achieved in the face of a level of adversity which is unimaginable today.  Throughout much of the Twentieth Century  African-American lawyers were treated with distain, often denied access to public law libraries,  forced to drink water from separate fountains, forced to use separate lavatory facilities and to eat outside of the courthouse, largely denied access to white clients and unable claim close relationships with judges and other persons of influence.  Until late in the 1960’s they could not join the majority bar associations, which were racially exclusive. 

In 1948, Atlanta’s ten African-American lawyers came together to form the State’s first historically black bar association, the Gate City Bar Association, whose purpose was to promote an appreciation of the legal profession, to increase the number of lawyers of color, and to oppose arbitrary, capricious, and discriminatory laws. The Association’s stated purpose was given life by the active involvement of its founders and early members (including Horace Ward, William Alexander, Howard Moore and Donald Hollowell) in advancing the cause of justice.  Walden, for example, brought suits to equalize the salaries of public school teachers and to integrate the Georgia State College of Business Administration. Along with Moore, Robinson, Thomas, Powell and Hollowell, he defended the Atlanta Branch of the NAACP when the branch was prosecuted for failing to register and failing to surrender its membership records to the Secretary of State. Thomas, Moore and Robinson filed the successful suit to desegregate Atlanta’s municipal golf courses.  Hollowell represented Horace Ward in his unsuccessful effort to desegregate the University of Georgia.  Walden, Hollowell and Moore were part of the original group of counsel in the 1958 suit to desegregate the Atlanta Public Schools.  Walden and Hollowell were among the lawyers who represented the students who were arrested in the Atlanta Sit-Ins of 1960.  Hollowell achieved national attention when, in 1960, he secured the release of Martin Luther King, Jr. form Reidsville State Prison. Ward, Hollowell and Vernon Jordan represented Charlayne Hunter and Hamilton Holmes in their successful effort to desegregate the University of Georgia in 1961.

Leroy R. Johnson (standing, right), admitted to the bar in 1959, played a major role in Georgia’s public life throughout the 1960’s and beyond, becoming one of the most powerful African-Americans in the State’s history.  He was elected to the State Senate in 1962, becoming the first African American to be elected to that body since 1874.  He served in the Senate until 1975, ultimately rising to the Chairmanship of the powerful Senate Judiciary Committee. His influence was such that he was able to persuade Georgia’s segregationist Governor Lester Maddox to issue a boxing license to Muhammad Ali (at a time when no other state would issue such a license to Ali), thus facilitating Ali’s first comeback.  In his campaign for Mayor of Atlanta in 1973, Johnson received the endorsement of the Atlanta Journal Constitution, but the election was ultimately won by Maynard H. Jackson, Jr., another African-American lawyer.

Jackson, Atlanta’s first African-American Mayor (1974-1982, 1990-1994) was one of the most transformative figures in Atlanta history.  Jackson led the City during a time of tumultuous change, including a higher level of inclusiveness in public decision-making.  He helped to keep the community together during the Atlanta Child Murder Panic.  His administration completed the reconstruction of the world’s busiest airport on-time and under-budget. His policies set a tone which was conducive to the creation of professional and business opportunities for populations that had previously been under-represented, including African-American professionals and business owners.

Georgia’s African-American bar experienced significant growth in the 1970’s and throughout the Jackson years, with the addition of groups such as the “Johnson Group” (which in various forms has included lawyers such as Senator Leroy Johnson, Antonio Thomas, Judge Marvin Arrington, and Judge Clarence Cooper), the “Sampson Group” (which in various forms has included lawyers such as John Kennedy, Reuben Bussey, Thomas Sampson, Benjamin Spaulding, P. Andrew Patterson, Donald Edwards, Linwood Slayton, and Jeffrey Tompkins), the “Ward Group” (which at various times has included Felker Ward, Jr., Judge Thelma Wyatt Cummings Moore, Franklin Biggins and Ray Carpenter), and the “Jackson Group (which in various forms has included lawyers such as Maynard Jackson, P. Andrew Patterson, Bernard Parks, David Franklin, Tony Axam and Philip Ransom), as well as a large cadre of small firms and solo practitioners.  Pioneers  began to be appointed and elected to the judiciary, such as Horace Ward and William Alexander (each first to the State Court of Fulton County and then the Superior Court of Fulton County). Others began to break into (and advance to leadership positions in) government agencies (e.g., Donald Hollowell at EEOC, Emma Darnell at the City of Atlanta, and Marva Jones Brooks at the City of Atlanta), corporate law departments (e.g., Daniel Thompson at BellSouth, Glenda Hatchett at Delta Air Lines and Helen Huyler at the Prudential Insurance Company) and majority law firms (e.g., Prentiss Yancey at what is now Smith Gambrell, Richard Sinkfield at what is now Rogers & Hardin and myself at what is now Alston & Bird).

The growth experienced in the Jackson years has continued to accelerate.  Atlanta is now home to several hundred African-American lawyers, who have excelled across a broad range of professional pursuits.  Unlike  Walden, whose practice was largely limited to the representation of African-American clients, many of our private practitioners have emerged as counselors to major mainstream institutions in the public and private sectors.  In addition to numerous trial court and lower-court judges, lawyers such as Horace Ward, Clarence Cooper, Stephen Jones and Eleanor Ross have been appointed to the U.S. District Court for the Northern District of Georgia.  Leah Sears, Robert Benham and Harold Melton have been appointed to the Georgia Supreme Court and Herbert Phipps and Yvette Miller have been appointed to the Georgia Court of Appeals.  Thurbert Baker and Michael Thurmond have held cabinet-level positions in State Government (as Attorney General and Labor Commissioner, respectively).  Others have assumed leadership positions in their respective institutions as U. S. Attorneys (such as Larry Thompson and Richard Deane), District Attorneys (such as Paul Howard, Gwen Keyes Fleming and Robert James) City and County Attorneys (such as Clifford Hardwick, Susan Langford, Cathy Hampton, Michael Coleman, Marva Jones Brooks, Overtis Hicks Brantley and David Ware) authority chairs (such as Michael Tyler and Felker Ward), nonprofit executives (such as Kim Anderson) and law firm leaders (such as Bernard Taylor and Ernest Greer).  Our lawyers have also included three of Atlanta’s Mayors (Maynard Jackson, William Campbell and Kasim Reed) a President of the State Bar of Georgia (Patrice Perkins-Hooker) three Presidents of the Atlanta Bar Association (Paula Frederick, Ray Persons and Harold Franklin), the Chief Legal Officers of major institutions such as United Parcel Service (Teri Plummer McClure), The Home Depot (Teresa Wynn Roseborough), Pepsico, Inc. (Larry Thompson) Hanes Group (Joia Johnson) and the Coca-Cola Company (Deval Patrick), and partners in every major Atlanta law firm.

Good-Bye to 2015!

Wishing You the Best in 2016!

DeKalb Backs Development of GM Factory Site, Awaits Schools Support

By Mark Niesse  
Atlanta Journal and Constitution
December 15, 2015

[The Board of Commissioners Credits its Counsel for Structuring an Intergovernmental Agreement that Provides Adequate Safeguards to Protect the County's Interest. To view the discussion, click here.]

Ambitious plans to rejuvenate a closed-down General Motors factory site cleared a major hurdle Tuesday when the DeKalb County Commission unanimously agreed to invest in the redevelopment effort. 

But significant challenges remain before the 165-acre site, located along the Perimeter near I-85, can be transformed into a vibrant mixed-use area with retail shops, office space, housing and parks. 

Whether the development moves forward depends on the DeKalb school system’s backing. The financing for the project would use expected increases in property tax revenue to pay for $247 million in infrastructure improvements, but the school system hasn’t signed on. 

DeKalb Superintendent Stephen Green said Tuesday he has “serious reservations” about devoting education resources to the Doraville project, known as Assembly. “Our core business is teaching and learning, and routing revenue away from the classroom … is not in the best interest of the children,” Green said. “We are coming into financial stability, and we’re not necessarily willing to take that risk.” 

Green said he’s reluctant to commit public money to speculative development, and similar previous efforts in DeKalb haven’t been successful. He also pointed out that Atlanta Public Schools has struggled with its Beltline development partnership with the city of Atlanta, which has missed payments to the city school system. 

Developers have discussed the potential to relieve student overcrowding by building a school on the site, a proposal that didn’t satisfy Green because he said the school system can’t wait years for new construction. He is considering redistricting proposals that would address overcrowding. 

School board Chairman Melvin Johnson also has said the area needs more immediate relief, and he won’t make a quick decision. 

Supporters of the Assembly development said they’ll work to persuade school board members of the project’s benefit to students and their families. 

Part of the agreement approved by the DeKalb Commission requires construction of affordable housing units. 

“We’re very excited, and now it’s time to get to work, and of course, we have to be working with the school board,” said Doraville Mayor Donna Pittman after the DeKalb Commission’s vote. “It’s a game-changer for the whole city, the whole county, the whole region.” 

City Manager Shawn Gillen said he hopes school officials will come to realize the value of the project. “We can focus our efforts on the school board, talking with them and trying to get them to a comfort level much in the same way as we did the county,” Gillen said. “We’ve got a lot of work to do yet, but this is a major step forward.” 

The DeKalb Commission voted 7-0 to enter into an agreement with the city of Doraville to create a mechanism for public financing known as a tax allocation district, which will fund infrastructure on the site necessary to attract businesses. Those upgrades include a tunnel to the Doraville MARTA station and a street grid. The site preparations would be funded through $247 million in bonds, paid off over time through taxes collected as property values rise. The DeKalb school district would have to provide more than half of that funding. No existing tax money would be used. 

An opponent of the development, former Doraville councilman Tom Hart, told commissioners during their public comment period Tuesday that they should vote it down. “This is purely a publicly funded project,” Hart said. “We’ll call it a pork project because that’s exactly what it is.” 

[With the assistance of Charles Johnson, an attorney with the Atlanta office of Holland & Knight,] the county wrote several protections into its agreement before the vote. The county government won’t support the project financially unless the county school board also gives its consent, according to the agreement. And the county’s inclusion will automatically end in 10 years unless the commission takes another vote to continue its involvement. 

“This development will not occur without the dedication of future tax revenues to improve that site,” said Commissioner Jeff Rader. 

Integral Group bought the site from General Motors for $50 million last year after it had been unoccupied since the plant closed in 2008. Erik Pinckney, an executive for Integral, has said public support is “critical” to create a district where businesses want to locate.

Dine Out With Us in Support of Fisk University!

DINE OUT!

The Atlanta Fisk Club & The Atlanta Friends of Fisk Cordially Invite You to Join Us Meet, Greet and Eat  Agave Restaurant 242 Boulevard SE, Atlanta, GA  30312 Monday, November 16, 2015 5:00 pm - 10:00 pm RSVP to Sheila Smith at shsmith@fisk.edu Don’t forget to bring a Friend! Your support will benefit scholarships for Fisk University!  Fisk University 1000 17th Avenue N. Nashville, TN 37208 (615) 300-5074

In deciding on a Sentence for Tyrone Brooks, Consider His Overall Body of Work.

Any judge who considers an appropriate sentence for Tyrone Brooks should consider his contributions to society.

Throughout our nation’s history, progressive changes have come about in large part because activists have worked outside of official channels to create a climate that is more conducive to those changes.  In the words of Frederick Douglas, “Power concedes nothing without a demand. It never did, and it never will.”

A story is told about Sidney Hillman, who served for a time as head of the Amalgamated Clothing Workers Union.  After helping Franklin Roosevelt get elected in the Presidential campaign of 1932, Hillman is said to have gone to the White House and presented an ambitious agenda of progressive actions for the new President to take.  President Roosevelt supposedly replied: “Sidney, I agree with everything in your proposal. It is all exactly right.  Now you just go back home and make me do it.” 

Years later, Martin Luther King, Jr. is said to have had a similar conversation with President Lyndon Johnson.  In response to Dr. King’s call for voting rights legislation and for the appointment of more African American officials, President Johnson is said to have challenged Dr. King to essentially “make me do it”.

In more recent times, Representative Tyrone Brooks has played a role similar to that of Sidney Hillman and Martin Luther King.  With little thought for his own personal needs, he has worked outside of official channels to create a climate which made it easier for public officials to do the right thing. This letter provides just two examples.

When I first began practicing law, all of Georgia’s trial court judges were white, and few if any were female, and subsequent progress toward a more representative judiciary was initially very slow.  Through his work with the American Civil Liberties Union to challenge the method in which Georgia’s judges were selected, Tyrone Brooks helped to create an environment in which Governors Zell Miller and Roy Barnes were able through the appointment process to make our State’s judiciary (at least for a time) dramatically more representative of the communities that it serves.  The work toward a more representative judiciary continues to this day in our State, and I can personally testify that Representative Brooks remains a key ally.

Another example: For years, the people of Georgia were officially represented by a State Flag that was adopted as part of the State’s historic campaign of “massive resistance” against court-ordered desegregation.  Tyrone Brooks played a key role in raising awareness of the Flag’s sordid history.  It is largely through the efforts of people like Representative Brooks that Georgians now have a much more inclusive Official Symbol that no longer celebrates insurrection or the elevation of one group over another.

I am not too proud to say that I a beneficiary of the work of people like Tyrone Brooks.  Like many of my contemporaries, I have been able to take advantage of opportunities which might not have existed without the work of activists who have opened doors that they themselves never passed through. 

As one considers a sentence for Representative Brooks, consideration should be given to his overall body of work, which on balance has significantly contributed toward making our world a better place

Holland & Knight Diversity Week: Profiles in Excellence

From Holland & Knight's "In the Spotlight"

June 26, 2015

About Charles S. Johnson: Charles is a trial lawyer and counselor. He joined Holland & Knight in 1997.

Tell me how you believe you expand your comfort zone with respect to diversity and inclusion? I’m a product of a segregated environment and, like most of us, I continue to live in an environment that is still characterized by a significant amount of racial and cultural isolation. The workplace is a principal venue for cross-cultural interaction, a place where any level of functional success requires an ability to meet people where they are without forgetting who I am. As an associate, that meant speaking up for myself (through regular and irregular channels) in seeking the amount and kind of work that I felt was necessary to secure appropriate professional development. As a partner, it has meant speaking up for policies and practices that ensure that the firm maximizes its return on investment in all of its diverse talent and doing what I can personally to ensure the equitable allocation of professional development opportunities.

How has expanding your comfort zone impacted or changed you? I am fortunate that, as a younger lawyer, several senior lawyers took an interest in my success, and I have tried to take full advantage of this interest. I remember one senior lawyer in particular, to whom I was not regularly assigned and whose race was not the same as mine, who facilitated a discussion about the kind of work I was doing. It seems so simple now, but it’s important: I took the opportunity which this discussion afforded me to indicate that I wanted more than mere research opportunities, that I wanted the opportunity to manage cases and try them. As a result of this encounter, I was afforded opportunities that might not have come to me otherwise, and the result has been that I have been able to exercise a level of control over the direction of my own professional development.

Did you have any key mentors or people who deeply influenced who you are, what you believe in and what you’re committed to in your work and life? I grew up surrounded by people who had an abiding commitment to social justice, each of whom pursued that commitment in his or her own unique way. It never really occurred to me that there was any other way to approach life. While in college, I got to know Judge Constance Baker Motley and study her career. Through Judge Motley, I got to know John Lewis, who introduced me to Atlanta and to the community of people who in the 1960s were changing the world and who in the 1970s would begin to change Atlanta. My college dean steered me to the law school that Father Robert Drinan was transforming at Boston College, and my law school dean steered me toward the law review and the institutional practice of law. Philip Alston, a senior partner at my first law firm, went out of his way to let me know that his firm valued its service both to the firm’s clients and to the community, both of which were to be pursued with professionalism and integrity.

What is your favorite book/movie? The Arc of Justice by Kevin Boyle. It’s a true story that touches upon so many things that are of interest: race relations in 19th-century Lakeland, Fla.; the history of Wilberforce University and Howard University College of Medicine; the influence of the Klan in early 20th-century Detroit (a city which is home to my wife and several friends and clients); and the role of Clarence Darrow in the first major piece of litigation brought by the NAACP Legal Defense Fund. It’s great reading, and I recommend it.

When you are not at work, what would we most likely find you doing? Cycling, working for an accountable and representative judiciary, supporting Bard College and its diverse and wide-ranging initiatives, supporting families affected with sickle cell disease, and communing with my own family.

What are people most surprised to learn about you? I’ve gone through life with a hearing impairment, with total hearing loss in one ear.

ProMedica Decision Enables Aggressive Approach to Hospital Merger Enforcement

From Fierce Hospital Impact

May 20th, 2015

by Charles Johnson

 

In their effort to slow the pace of hospital consolidations, federal regulators have taken a new approach that has led to increased success. The Supreme Court recently declined to review the application of this new approach, suggesting that it will continue to be employed for the foreseeable future, with far-reaching consequences for the healthcare industry.

 

Since the early 1980s, the Federal Trade Commission (FTC) has challenged hospital mergers that it believed to be anticompetitive, often successfully blocking such mergers before they were even consummated.

 

In the late 1990s, however, the FTC lost eight straight hospital merger challenges, either due to the its failure to establish the relevant market, its inability to convince the courts that the predicted anticompetitive effects would ever materialize, or due to a perception that a not-for-profit hospital's conduct is driven only by benign intentions.

In 2002 the FTC announced a "merger retrospective," examining consummated hospital mergers to ascertain their actual effects on competition, after which it emerged with a new approach to merger enforcement. The commission resolved to challenge completed mergers, where the effects were demonstrable, rather than seeking to enjoin mergers before they were completed, and to focus on the bargaining power of each hospital system in its negotiations with managed care organizations (MCOs). This new approach placed the FTC on a path to renewed success, and it opened the doors to additional developments, including private treble-damage class actions.

 

Recent challenges

 

In 2004, the FTC challenged a 2000 merger in the Northern Chicago suburbs between the two-unit Evanston Northwestern Healthcare and Highland Park Hospital. There were no other hospitals located within the triangle formed by the three merging hospitals, although each hospital was within close driving distance of numerous other hospitals.

 

An administrative law judge (ALJ) concluded that the merger was unlawful (noting that Evanston's executives had written of their hope that the merger would increase their bargaining power with MCOs, and noting that the post-merger rate increases charged by the merged hospitals exceeded the rate increases for other hospitals in the area). The full commission left the merged firm intact, but it ordered separate negotiating teams to bargain with MCOs, one team for the two original Evanston hospitals and a separate team for Highland Park. After the FTC's decision, a U.S. District Court certified what may be the first private class action in a hospital merger case.

 

Following its Evanston playbook, the FTC in 2011 filed a complaint challenging the 2010 merger of two of the four hospitals in Lucas County, Ohio: ProMedica, a multi-hospital system, and St. Luke's, an independent community hospital. Prior to the merger, ProMedica had the largest share of the general acute care market (46.8 percent), and St. Luke's had the smallest share (11.5 percent). Since 2000, every MCO network included either ProMedica or St. Luke's. The merged system commanded 50 percent of the relevant product market for the so-called "clusters" of primary services (such as hernia surgeries and radiology services) and secondary services (such as hip replacements and bariatric surgery), and 80 percent of the separate "cluster" of obstetrical services (which were excluded from the classification of

 primary services).

 

The ALJ found that the merger resulted in "a tremendous increase in concentration in a market that was already highly concentrated"; that the elimination of competition between ProMedica and St. Luke's would increase ProMedica's bargaining power with MCOs; that the merged entity would be particularly dominant in an area of the county with a high proportion of privately insured patients; and that the merger would thus allow ProMedica unilaterally to increase its prices above a competitive level. The ALJ ultimately determined that the merger did not create sufficient efficiencies to offset its anticompetitive effects.

 

The Supreme Court weights in

 

After the full commission and the Sixth Circuit Court of Appeals affirmed the ALJ's decision to unwind the merger, ProMedica sought Supreme Court review. ProMedica's lawyers challenged the FTC's use of "cluster" market analysis; emphasized the relative weakness of the acquired hospital; and challenged the analysis of market effects, which combined unilateral effects (i.e., the ability to command monopoly prices) and collaborative effects (the increase in market concentration). On May 1, 2015, the Supreme Court issued its decision declining to review the case.

 

The Supreme Court's ProMedica decision suggests that the FTC will persist in the new approach to hospital mergers that emerged after its 2002 "merger retrospective." The FTC will target mergers by dominant hospital systems that increase the merged system's bargaining power in negotiations with MCOs, even though this increased bargaining power is a major factor driving the recent consolidation trend. The lack of a pre-merger challenge will bring little comfort to merging systems, especially when a post-merger challenge may be more successful. The specter of private class actions further increases the stakes for those considering hospital system mergers.

 

Charles S. Johnson III is a seasoned trial lawyer with Holland & Knight in Atlanta. Mr. Johnson primarily focuses in the areas of public policy and complex business disputes. He has extensive experience with antitrust litigation, and he previously served as adjunct professor of antitrust law at the University of Georgia Law School.