Friday, February 28, 2014

The Proposal For Settlement - An All-Or-Nothing Proposition?

By Jaret J. Fuente

Effective January 1, 2014, Rule 1.442(c)(2)(B), Florida Rules of Civil Procedure, has been amended. The rule, which previously required that a proposal for settlement “identify the claim or claims the proposal is attempting to resolve,” now will require instead that a proposal for settlement “state that the proposal resolves all damages that would otherwise be awarded in a final judgment in the action in which the proposal is served, subject to subdivision (F).” In re Amendments to the Fla. Rules of Civil Procedure, No. SC13-74, ― So. 3d ―, 2013 WL 6164572, at *1 (Fla. Nov. 14, 2013) (emphasis added). The amendment makes the rule consistent with section 768.79(2), Florida Statutes, which states that “[t]he offer [to settle] shall be construed as including all damages which could be awarded in a final judgment.” Fla. Stat. § 768.79(2) (emphasis added).

The amendment is significant because it eliminates partial proposals for settlement, which, although popular because they allow litigants to cherry-pick claims, are tricky and oftentimes complicate cases pre- and post-judgment.  However, it also raises an interesting issue: Will proposals for settlement be valid in actions in which plaintiffs seek both damages and equitable relief, and if so, will such proposals be deemed to implicitly carve out the equitable claims if they are drafted in accordance with amended Rule 1.442 to resolve “all damages” that would otherwise be awarded in a final judgment?

The offer of judgment statute states that it applies to “civil actions for damages.” Fla. Stat. § 768.79(1). It does not state that it applies to actions for equitable relief, or even to actions for both equitable relief and damages. Before the amendment, the Florida Supreme Court held that Section 768.79 “does not apply to an action in which the plaintiff seeks both damages and equitable relief, and in which the defendant has served a general offer of judgment that seeks release of all claims.” Diamond Aircraft Indus., Inc. v. Horowich, 107 So. 3d 362, 374 (Fla. 2013). But what about proposals in such cases that attempt to resolve “all damages” instead of all claims? The result is unclear.

Proposals for settlement in damages-only cases will be all-or-nothing propositions under the amended Rule 1.442.  Their interpretation remains to be seen, however, in cases with both damages and equitable claims.

Tuesday, February 25, 2014

Estate And Tax Planning For Same-Sex Married Couples In Florida

By Taylor C. Russo and Jamil G. Daoud

The recent U.S. Supreme Court ruling in U.S. v. Windsor and subsequent guidance published by the Internal Revenue Service (IRS) has created numerous estate and tax planning opportunities for same-sex married couples nationwide. Because many of these couples may relocate to Florida to take advantage of Florida’s lack of income, gift, and estate taxes, practitioners should apprise themselves of the various planning opportunities that now exist.

In Windsor, the U.S. Supreme Court held Section 3 of the Defense of Marriage Act to be unconstitutional as a deprivation of the equal liberty protection found in the Fifth Amendment. After Windsor, same-sex married couples were considered married for purposes of federal estate and gift tax laws if they had been married in a state that recognizes same-sex marriages and if they resided in a state that recognizes same-sex marriages. Therefore, immediately after Windsor, same-sex married couples who had been married in a state that recognizes same-sex marriages but who resided in Florida, a non-recognition state, could not avail themselves of the benefits of married couples under federal gift and estate tax laws. This all changed when the IRS issued Revenue Ruling 2013-17, which clarified that any same-sex marriages legally entered into will be recognized for federal income, gift, and estate tax purposes even if the same-sex married couples reside in a state that does not recognize same-sex marriages.

The IRS’s Notice IR-2013-72 makes it clear that same-sex married couples must now file their 2013 federal income tax returns (and all future income tax returns) as married filing jointly or as married filing separately. Additionally, this notice also states that individuals who were in same-sex marriages may file amended federal returns (income, gift, or estate) for one or more prior tax years still open under the statute of limitations. This option may create income, gift, and estate tax planning opportunities for same-sex married couples that should be evaluated.

Same-sex married couples (regardless of where they reside) are now able to take advantage of several federal tax benefits that were previously unavailable to them. These benefits include, but are not limited to, the following: (i) unlimited marital deduction for federal estate and gift tax purposes; (ii) “portability” of the deceased spouse’s unused estate tax exclusion amount for federal estate tax purposes; and (iii) gift splitting for federal gift tax purposes.

A possible problem now arises when same-sex married couples reside in a state that does not recognize same-sex marriages but has a state income, gift, or estate tax. For example, under current law and IRS guidance, these couples will now be required to file their federal income tax returns as married filing jointly or as married filing separately, but they may very well be forced to file separate state income tax returns. For this reason, Florida appears to be an attractive home for same-sex married couples due to its lack of income, gift, and estate taxes, and Florida practitioners should be prepared to advise such couples on the various planning opportunities that are now available.

Friday, February 21, 2014

Understanding The Revised Florida Arbitration Code

By Christopher M. Shulman

Effective July 1, 2013, most new arbitration agreements between Florida parties are subject to the Revised Florida Arbitration Code (RFAC), Chap. 682, Fla. Stat. (2013).  Here are some of the highlights:

Arbitration Agreement. The RFAC provides that many of its provisions may be waived or varied by the parties, but some may not. The RFAC specifies that the court decides whether the agreement is enforceable and whether it applies to a specific controversy, but the arbitrator decides whether the arbitration clause is enforceable and whether conditions precedent to arbitrability have been fulfilled. Fla. Stat. § 682.02(2) – (4) (2013). Moreover, the sections relating to motions to compel/stay arbitration have been updated. Fla. Stat. § 682.03 (2013).

Initiation of Arbitration. Parties commence arbitration using the method they have provided in their agreement; if none, then by certified mail or service of process. Separate arbitrations may be consolidated by the court, unless prohibited by the arbitration agreement(s), and waivers of class arbitration retain their validity. Fla. Stat. §§ 682.032, 682.033 (2013).  Waivers of class arbitration are enforceable under the Federal Arbitration Act, whether the substance of the claim being arbitrated is a creature of state or federal law. American Exp. Co. v. Italian Colors Restaurant, 133 S. Ct. 2304, 2312 (2013); AT&T Mobility LLC v. Concepcion, 131 S. Ct. 1740, 178 – 1752 (2011). The Florida Supreme Court has followed Concepcion, acknowledging that the Federal Arbitration Act preempts state law. McKenzie Check Advance of Florida, LLC v. Betts, 112 So. 3d 1176, 1183 – 1188 (Fla. 2013). The arbitrator appointment process has been streamlined and prevents appointment of a non-party arbitrator with a clear conflict of interest. I.e., an arbitrator “who has a known, direct, and material interest in the outcome of the arbitration proceeding or a known, existing, and substantial relationship with a party.” Fla. Stat. § 682.04 (2013). Arbitrators must disclose potential conflicts of interest and may only serve if all parties consent after such disclosure. Fla. Stat. § 682.041 (2013).

Provisional Remedies. The RFAC allows the arbitrator (or the court, before an arbitrator has been appointed) to order interim relief. Parties may challenge/enforce such interim orders of provisional relief, in much the same manner as an arbitration award. Fla. Stat. §§ 682.031, 682.081 (2013).

Arbitrators. Arbitrators have judicial immunity under the RFAC, even if they don’t disclose properly, and cannot be called to testify (or produce documents) other than in a proceeding brought by the arbitrator against a party (limited to what is needed to establish the arbitrator’s claim) or when a party has established prima facie basis for vacating an award based on arbitrator misconduct. Fla. Stat. § 682.051 (2013). Arbitrators are also entitled to their reasonable attorney’s fees and costs if the court determines the arbitrator is immune or is not required to testify. Id.

Prehearing Procedures. Arbitrators may permit discovery as they deem appropriate, considering “the needs of the parties ... and other affected persons and the desirability of making the proceeding fair, expeditious, and cost effective.” They may issue subpoenae for appearance or duces tecum at hearing or “at a discovery proceeding” and may issue protective orders. Fla. Stat. § 682.08 (2013).

Arbitration Hearings. Scheduling and conduct of the hearings is more streamlined. Fla. Stat. § 682.06 (2013). Arbitrators may rule on motions for summary disposition, with due notice; final evidentiary hearings are no longer required. A hearing ― summary or final ― may move forward in the absence of a party, if that party has received due notice. Parties still have the right to be heard, present evidence, and cross-examine witnesses appearing at a final hearing. Fla. Stat. §§ 682.05, 682.06 (2013).

Awards. Arbitrators may award punitive damages or attorney’s fees and costs, if such would be available in a civil action involving the same claim(s). Awards may be modified or corrected by the arbitrator, on motion submitted within 20 days after receipt of the award; opposing party has 10 days to object. Alternatively, on motion to confirm, vacate, or modify the award, the court may rule, after taking what evidence the court deems necessary, or may submit some types of modifications or corrections to the arbitrator to resolve. Fla. Stat. §§ 682.09 – 682.10, 682.12 – 682.14 (2013).


The Federal Arbitration Act still pre-empts arbitration clauses involving disputes related to “maritime transactions” or “interstate commerce” as defined in 9 U.S.C. §1. An exception to the pre-emption exists where the parties have specifically stated that the law of Florida would govern the agreement.  Volt Information Sciences, Inc. v. Board of Trustees, 489 U.S. 468 (1989).  

The RFAC will apply to all non-pre-empted arbitration agreements as of July 1, 2016, and applies to any pre-existing agreement where the parties agree it will apply. Fla. Stat. § 682.013 (2013).


Thursday, February 20, 2014

Tax Implications Of Supreme Court Decision On DOMA

By Constance Rossi and Briggs Stahl

The United States Supreme Court’s recent decision ― “Section 3 of the Federal Defense of Marriage Act (DOMA) violates the equal protection of the Fifth Amendment of the U.S. Constitution as applied to persons of the same sex who are legally married under the law of their state” ― opens the door for same-sex couples to enjoy many federal tax-related benefits previously available only to opposite-sex married couples. These benefits include income tax benefits, estate and gift tax benefits, and taxpayer-friendly employee benefits.

Under the ruling, individuals of the same sex will be considered to be lawfully married under the code as long as they were married in a state, which means any domestic or foreign jurisdiction having the legal authority to sanction marriage, even if they are domiciled in a state that does not recognize the validity of same-sex marriage. Due to our increasingly mobile society, it is important to have a uniform rule of recognition that can be applied with consistency by the IRS and taxpayers alike for all federal tax purposes.
A taxpayer’s filing status determines the right to many tax benefits relative to access and amounts. The filing status determines income tax bracket levels, the standard deduction, personal exemptions, and the adjusted gross income at which many of the tax benefits “phase-out.” In most cases, the taxpayer’s marital status is the deciding factor for the filing status.

Same-sex couples who are currently married under state law must file either a jointly or married filing separately return for 2013. They are barred for federal tax purposes from filing separate returns as single or head of household unless, like opposite-sex couples, they are divorced or have a final separation agreement in place by the end of 2013.

For 2012 and prior years, assuming the statute of limitations for amending a return has not expired, same-sex spouses who filed their return before September 16, 2013, may choose to amend their returns to file using a joint filing or married filing separately status. However, the returns are not required to be amended; this is optional.

Keep in mind that the benefits of filing a joint return may not always produce a better result than filing separately as unmarried individuals. One factor, known as the marriage penalty, is a problem for many opposite-sex married couples and same-sex married couples. Same-sex married couples also cannot turn a blind eye to any item that is listed on a joint return, triggering the consideration of joint and several liability. Innocent spouse status now comes into play with the decision to file joint returns.

Many same-sex married couples may find it beneficial to revisit their estate plans to make certain that interests passing to the other spouse qualify for all the tax benefits. The marital deduction can defer or eliminate transfer tax until the surviving spouse dies. The ability to transfer assets between same-sex married couples with no concern for lifetime gift tax consequences creates flexibility for estate planning.

Effective date issues of the ruling will consider the same-sex marriage effective retroactively to the date of the couple’s marriage under state law rather than the date of the Supreme Court’s decision, June 27, 2013.

Tuesday, February 18, 2014

Patent Law: First-to-File Rule

By Kathleen M. Wade

What's in a name? Well Juliet, it depends upon whether you are asking a patent prosecutor or litigator. Under the Leahy-Smith America Invents Act (AIA), the rule means as the name suggests: A patent is issued to the first to file an application. 35 U.S.C. § 102. Although the AIA awards patents to the inventor who first files, federal courts do not automatically award the race to the courthouse to the swiftest in patent cases.

The litigation rule was not misnamed when originally established by the United States Supreme Court in 1824. “In all cases of concurrent jurisdiction, the Court which first has possession of the subject must decide it.” Smith v. McIver, 22 U.S. 532, 535 (1824).

Since Smith, the general rule in federal litigation favors the forum of the first-filed action.

The Federal Circuit, whose law controls issues impacting patent law (Midwest Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356, 1359 (Fed. Cir. 1999)), advocates following this general rule “unless considerations of judicial and litigant economy, and the just and effective disposition of disputes, requires otherwise.” Electronics for Imaging, Inc. v. Coyle, 394 F.3d 1341, 1347 (Fed. Cir. 2005) (emphasis added). The court has rejected applying a bright-line rule that would automatically defer to the first-filed court, the fate of the second-filed action. Micron Tech., Inc. v. Mosaid Techs., Inc., 518 F.3d 897, 904 (Fed. Cir. 2008). Instead, Federal Circuit precedent instructs that factors such as tenuousness of jurisdiction, broadness of the parallel actions, the degree of judicial investment, the possibility of consolidating related litigation, and the convenience factors under 28 U.S.C. § 1404 (a) may be considered in determining whether parallel actions should proceed separately or together, and, if the latter, in which forum.

Exceptions to the general rule may also be made if bad faith, anticipatory suit, and forum shopping are present.

The Federal Circuit has further carved out a “customer suit exception”: If an infringement action is first brought against the customer, and the manufacturer (from whom the customer purchased the allegedly infringing good) subsequently brings a declaratory judgment action in response, the first-filed action may be stayed in favor of the manufacturer’s declaratory judgment action. See Kahn v. General Motors Corp., 889 F.2d 1078, 1081 (Fed. Cir. 1989).

In light of the “ample degree of discretion” the Federal Circuit accords the lower courts, it may be the second-filed court that determines both actions when applying the first-to-file rule. Merial Ltd. v. Cipla Ltd., 681 F.3d 1283, 1299 (Fed. Cir. 2012).

So as Juliet doth love the man behind the name, the Federal Circuit too desires that the justice and expediency considerations behind the first-to-file rule, and not the name, have meaning in patent cases.

Monday, February 17, 2014

Health Care Law: Florida’s Patient Self-Referral Act - The Stark Law On Steroids

By Jon Gatto

The federal Stark Law, 42 U.S.C. § 1395nn, regulates referrals of specific “designated health services” payable by federal insurance programs such as Medicare and Medicaid by physicians who have financial relationships with entities to which they refer such services. The law has resulted in a maze of complex and rapidly evolving regulations, leaving providers in a quandary as to which types of referrals are permissible.

Complicating matters even further is the Florida Patient Self-Referral Act of 1992, Section 456.053, Florida Statutes (the Florida Act), which the American Medical Association has described as “the most complicated and perhaps the most restrictive self-referral law of any of the states.” The Florida Act serves a similar purpose as the Stark Law and contains some overlapping language, but it does not expressly tie itself to the Stark Law. Rather, the Florida Act stands on its own as a separate prohibition. In January 2013, the Eleventh Circuit held that the Stark Law does not pre-empt the Florida Act. Fresenius Medical Care Holdings, Inc. v. Tucker, 704 F.3d 935 (11th Cir. 2013).

In one respect, the Florida Act is narrower than the Stark Law because it prohibits referrals only when a provider has a direct or indirect investment interest in the entity receiving the referrals.  In contrast, the Stark Law applies to a host of financial relationships, including investment interests and other relationships such as independent contractor relationships. In two other respects, however, the Florida Act is broader. First, it applies to referrals of any health services, not just “designated health services.” Second, the Florida Act applies regardless of who pays for the referred services, whereas the Stark Law is limited to services payable by federal insurance programs.

The Florida Act and the Stark Law contain two largely distinct sets of exceptions to their referral prohibitions. The most important exception that is common to both laws is the “in-office ancillary services exception,” which allows providers to refer ancillary services such as imaging and laboratory services to their own group medical practices. Although both laws embrace this general principle, the Florida Act, true to form, is more restrictive. First, the Florida Act requires one of the physician members of the practice to be in the office while the ancillary services are performed, whereas in many cases the Stark Law does not. Second, the Florida Act requires that the ancillary services be provided solely for the benefit of patients of the practice, prohibiting the acceptance of outside referrals for such services (except that the practice may accept up to 15 percent outside referrals for diagnostic imaging services if it meets a host of onerous requirements). No such requirement is included in the Stark Law exception.

A violation of the Florida Act requires the entity to which the services were referred to forego any claim for payment for the services. If the entity knowingly submits a claim in violation of the Florida Act, the entity is subject to a civil penalty of $15,000 per claim.

Friday, February 14, 2014

Tampa Bay Best Buddies Serves Vulnerable

By Jason Whittemore and Luis Viera

To us, one of the great attributes of our country has been the march toward equality for all.  Since its founding, our country has made great strides — generation by generation — to bring the American promise of liberty and equality to more and more groups of Americans.

Few Americans have had a more troubled journey to this promise than those with developmental disabilities. One organization that has done so much to fulfill both the promise of liberty and equality, as well as the moral promise of dignity, for Americans with developmental disabilities is Best Buddies.

Since its founding, Best Buddies has served as one of the greatest advocates for those with developmental disabilities in the United States. Founded by two great Americans, Sargent Shriver and Eunice Kennedy Shriver, Best Buddies has come to reflect the hopes and dreams of families raising children with developmental disabilities and special needs.

The purpose of Best Buddies is simple: to create a culture of tolerance, affirmation, and fair play in our school system as it applies to those with developmental disabilities. Participating schools have students without special needs who are partnered with “Buddies,” or individuals with special needs or developmental disabilities.  Those students then serve as not only friends for their “Buddies” but as advocates. This role fosters tolerance in our schools for a population that is all too often maligned and attacked, and it allows the student participant to become aware of a world that few of us know about.

We both are proud to serve on the board of the Tampa Bay Best Buddies organization.  We come to this organization based on similar experiences.  We both have siblings who are developmentally disabled.  We both know what is like to hear words such as “retarded” and feel the sting of bias as suffered by our siblings. We both know what it is like to feel the scar of rejection or discrimination, as felt by our beloved siblings. And we both know what it is like to see our parents hope and pray that their special-needs child will be cared for after they are no longer on this earth to protect them.

We both firmly believe that there is no greater duty in life than to speak out on behalf of those who have no voice. As attorneys, we promise to defend the substantive values enshrined in our Constitution. As Americans, we are given the duty to care for our neighbor.

 There are few populations more ripe for this level of care and advocacy than those with developmental disabilities. This is a group of Americans who, quite often, lack a voice to speak on their behalf.
That is why it is incumbent on us ― both as Americans and attorneys ― to speak out for this group of vulnerable people who have no voice. People like our siblings deserve dignity, and until the day this goal is achieved, Best Buddies of Tampa Bay will be here to advocate on their behalf.

We hope you will join us in our journey. For more information, go to or contact us.

Tuesday, February 11, 2014

Going Abroad For CLE

By George Bedell

My recent trip to England made me wonder whether I have missed some great opportunities in fulfilling my CLE requirements. I had already planned a vacation in Scotland for late September when, shortly after booking my flight, an email from the American Bar Association arrived announcing (probably for at least the third time) that there was a white-collar crime seminar in London two days after I was scheduled to return to Tampa. After briefly considering how much I enjoy my white-collar cases, I signed up for the seminar and rescheduled my flight.

The first indication that the trip was going to be professionally worthwhile and personally fulfilling came on the flight from Atlanta to London. The passenger to my right, who now lives in Naples, Florida, turned out to be a barrister and member of Grays Inn in London.  She offered to take me to an inn dinner. Unfortunately, the schedule would not work out, but I hope to be able take her up on that nice offer in the future. Next, at baggage claim, I ran into a friend who used to practice law in Tampa who is now in Tallahassee. He, too, was heading for Scotland, and it turned out that our hotels in London were directly across the street from one another.

The white-collar seminar was hosted by a solicitors firm that has its offices on the north bank of the Thames River. Although a large portion of the attendees were from London, there were others from the Netherlands, France, Germany, Russia, Portugal, and, of course, the United States. The group was small enough that it was easy to meet, recognize, and talk with other lawyers, which is always valuable.

The substantive aspect of the seminar began with David Green, director of United Kingdom Serious Fraud Office, explaining the U.K. approach to large-scale fraud. The sessions covered both U.S. and U.K. enforcement of tax laws, foreign corrupt practices, money laundering, whistleblowing, and other contemporary issues that companies and individuals may encounter during business transactions. I learned a number of worthwhile strategies that will help with my next white-collar client.

Fishmongers’ Company Banqueting Hall, the setting for lunch on Monday and the reception that evening, provided one of the more interesting parts of the program. The Fishmongers’ Company is a 700-year-old guild that has its building on the north bank of the Thames River at the foot of London Bridge. The building has a Greco Roman design and was completed in 1835. Towering portraits of King George II, Queen Caroline, and Queen Elizabeth II hang on the walls; coats of arms hang beneath the gilded molding in the banquet room; and every bit of brass in the building gleams.

Over the years, I have been perfunctory in fulfilling my CLE requirements. From here on, I plan to be a bit more adventurous in acquiring the credits I need because of my experience in London. I learned a lot, met some interesting people, and enjoyed a historic change of scenery.  

Corporate Counsel: How Far Can A Long Arm Reach?

By Caroline Johnson Levine

Employees of foreign corporations who are physically present and working in Florida may believe that they enjoy immunity from liability for any tortious acts committed within Florida. However, the Florida Supreme Court has made it clear in Kitroser v. Hurt, 85 So. 3d 1084 (Fla. 2012), that the “corporate shield doctrine” does not operate as a bar to personal jurisdiction over nonresidents who commit negligent acts in Florida on behalf of their corporate employer.

Dale Dickey was driving a commercial truck as an employee of Airgas Carbonic Inc. when he struck and killed Rhina Castro Lara. The estate of Lara (Kitroser) filed a lawsuit against Airgas, Dickey, and five Airgas employees who failed to properly supervise and train Dickey. Airgas was a foreign corporation. However, Airgas employees used an Airgas facility in Bartow. Airgas filed motions to quash service and a motion dismiss the complaint because it “asserted that because their actions were taken on behalf of Airgas, rather than for their own personal benefit, the corporate shield doctrine precluded personal jurisdiction over them in Florida even though the negligent conduct occurred in Florida.” Id. at 1086. Uncontroverted evidence demonstrated that the Airgas employees were not Florida residents; did not rent or own Florida vehicles or real estate; did not have Florida financial accounts or tax liability; did not obtain Florida vocational, professional, or driver’s licenses; and were not registered to vote.

Generally, “the ‘corporate shield’ doctrine, also referred to as the ‘fiduciary shield’ doctrine, provides that acts performed by a person exclusively in his corporate capacity not in Florida but in a foreign state may not form the predicate for the exercise of personal jurisdiction over the employee in the forum state.” Id. at 1088; citing Doe v. Thompson, 620 So. 2d 1004, 1005 (Fla. 1993). Based upon this doctrine, the Airgas employees asserted that the “relevant inquiry is whether the actions occurred within the scope of employment and thus on behalf of the corporation.” Id. at 1088.

Importantly, the Florida Supreme Court has created a procedural process to determine whether the long-arm statute provides for personal jurisdiction over a nonresident. “First, a court must determine whether sufficient jurisdictional facts are alleged to bring the action within the ambit of Florida’s long-arm statute. If the first step of the inquiry is satisfied, a court must then determine whether the defendant has sufficient ‘minimum contacts’ with the state to satisfy the Fourteenth Amendment’s due-process requirements.” Id. at 1087; citing Venetian Salami Co. v. Parthenais, 554 So. 2d 499, 502 (Fla. 1989). Further, Florida’s long-arm statute, Section 48.193(1), provides that a nonresident submits himself or herself to the jurisdiction of Florida courts if that individual (b) commits a “tortious act within this state” or (f) causes “injury to persons or property within this state” as the defendant engages in business or service activities within Florida.

In Kitroser, the court established that corporation employees can be held liable for negligent or intentional acts, regardless of the employees’ resident status.

Monday, February 10, 2014

Construction Law: Public-Private Partnerships In Florida - Innovation In Public Projects

By Erin E. Banks

The recent economic downturn, coupled with a decline in the availability of public funding for capital projects, has resulted in a focus on public-private partnerships (also referred to as “PPPs” or “P3s”). P3s are contractual agreements formed between public and private entities that allow for greater private-sector participation in the financing and delivery of public building and infrastructure projects.  See USDOT, Innovative Program Delivery website.

Florida recently adopted a bill, chapter 2013-223, Laws of Florida, to broaden the ability to use P3s in the state because “there is a public need for timely cost effective acquisition, design, construction, improvements, renovation, expansion, equipping, maintenance, operation, implementation, or installation of project serving a public purpose” and “a public-private partnership has demonstrated it can meet the needs by improving the schedule for delivery, lowering the cost, and providing other benefits to the public.” The Florida Department of Transportation (FDOT) already operates a P3 program pursuant to Section 334.30, Florida Statutes. For example, the FDOT is currently in the process of taking proposals for the $2.1 billion I-4 Ultimate Project, which is being procured as a 40-year design, build, finance, operate, and maintain concession agreement.

The bill broadens the ability to use P3s in Florida in an effort to further encourage growth. Among other things, the bill amends Section 255.60, Florida Statutes, to authorize P3s to contract for public-service work with not-for-profit organizations or charitable youth organizations, and it created Section 287.05712 to govern the procurement process for P3s in Florida. Section 287.05712 expansively defines a “private entity” as “any natural person, corporation, general partnership, limited liability company, limited partnership, joint venture, business trust, public-benefit corporation, non-profit entity or other private business entity.” Subsections 287.05712(4), (5), and (6) provide procurement procedures for both solicited and unsolicited proposals for qualifying projects, project approval requirements, and project qualification processes. Perhaps most importantly, Subsection 287.05712(11) sets forth financing options for P3s that include private-source financing secured by the private entity, the loan of funds from the responsible public entity to the private entity, and the use of “innovative finance techniques” by the responsible public entity, including federal loans, commercial bank loans, and hedges against inflation from commercial banks or other private sources.

The bill also creates a task force responsible for recommending guidelines to the Florida Legislature for establishing a uniform P3 selection and review process. The task force must submit a final report of its recommendations to the governor and others by July 1.

What does this all mean for Florida? Some believe growth is on the horizon as a large increase in private funding to construct, operate, and maintain public projects becomes available.  For example, the Seminole State College is planning to leverage the new legislation to build up its new Altamonte Springs campus, with the first floor of the building probably consisting entirely of retail and commercial with classrooms above ― arguably the kind of innovation promoted by P3s.

Friday, February 7, 2014

Volunteer For A Day And Change The World Of Someone In Need

By Lara M. LaVoie

The committed group of volunteers that I have met over the past few months through my involvement as co-chair of the Community Services Committee (CSC) has left me with a great sense of hope and pride, especially for the legal profession. After the success of the Adopt-a-Veteran event in October, where volunteers gave their time so generously to fulfill the wish lists and hearts of veterans in need, I am amazed at how many individuals stepped up once again to support the Elves for Elders event in December. The CSC (due in no small part to the unwavering dedication of my co-chair, Lisa Esposito) was able to get all 230 Elders “adopted” this year! Without elves like us, these wonderful seniors would have had no presents under their trees/menorahs. As I write this article, I am anticipating the joy of delivering gifts and smiles to this forgotten group of people during the holidays.  

Hopefully, you will be able to spare a few hours to volunteer at one of our upcoming heartwarming volunteer events.  In February, we will spend a day with the children at A Kid’s Place in Brandon, which is a 60-bed facility for abused, neglected, or abandoned children. It has a unique setting with five 3,200-square-foot homes, located on 5 acres. A Kid’s Place uses a live-in house parent model, which provides the children (from newborn to 17 years of age) with a family living atmosphere and a variety of services to meet their social, educational, medical, and psychological needs. We hope to have a carnival-type event there on a Saturday afternoon, with a cookout and fun events for the kids and teens. Organizing and implementing this event is going to require a lot of time and resources; we really appreciate and need any and all help that you can provide!  

In March, the CSC will participate in Dining with Dignity Week, in association with Trinity Café. The CSC’s friends and family will spend a few hours at Trinity Café serving sit-down, three-course meals to Hillsborough County’s homeless, hungry, and working poor. The café’s mission is to restore a sense of dignity to the homeless and hungry, while serving a nutritious meal. This unique café sets its tables with tablecloths and silverware. Lunch is served on china; drinks are poured in glasses; and the conversation is cheerful and compassionate. We will need volunteers for any day that week to serve lunch, pour drinks, or just sit and share some one-on-one meal-time conversation!

If you are interested in joining the CSC or volunteering for an upcoming event, please contact Lara LaVoie ( or Lisa Esposito (

Thursday, February 6, 2014

Top 3 Reasons To Practice Collaborative Law

By Adam B. Cordover

You may have heard of the reasons clients choose the collaborative method to resolve their legal and family disputes: Respect is fostered. Communication is enhanced. Privacy is maintained. Solutions are comprehensive. Budgets are respected. Agreements are long-lasting.

But why do attorneys choose to practice collaborative law?

Work in a Team Environment

Rather than adversaries, the other party and attorney on a collaborative case are fellow team members whose goals include finding a solution best for the family. The team is led by a neutral facilitator ― generally a mental health professional ― who guides productive and respectful behavior for the clients and their attorneys. A financial professional usually takes over many of the disclosure responsibilities and develops options that maximize the parties’ resources. Collaborative practitioners refer to this team-centric view as a “paradigm-shift,” as attorneys must: (i) discard the “us versus them” mentality and (ii) cede control over aspects of the case to professionals who will more efficiently and effectively address them.

Engage in a Creative and Intellectual Endeavor

Creativity as a problem-solving skill is essential in collaborative practice, as attorneys must withdraw if the clients are unable to reach an agreement. Unlike in mediation, where the option of impasse takes the pressure off of parties and their attorneys from making difficult decisions, attorneys who do not want to be fired must dig deep into their toolboxes to address interests behind stated positions.

Of course, this is made easier with the help of the interdisciplinary team. The facilitator will identify underlying issues, lead brainstorming sessions, and help the clients respectfully and productively choose the best solution for them. Further, the financial professional will propose property division, child support, and alimony scenarios that are well beyond the expertise of family law attorneys. In turn, attorneys’ exposure to financial and mental health professionals’ perspectives on issues tend to widen their knowledge base and aide their general law practice.

Help Clients Grow

Rather than being destructive, collaborative practice tends to be a constructive process for clients. The facilitator teaches respectful communication skills and techniques for resolving future disputes. Where children are involved, the focus remains on them, and co-parenting skills are enhanced. The financial professional can often find tax benefits, teach the financially less sophisticated spouse how to create a budget, and/or propose better strategies for the clients’ portfolios.

Client growth brings higher rates of satisfaction, and happy clients lead to happy attorneys. (By the way, according to a multi-year study by the International Academy of Collaborative Professionals, almost 90 percent of collaborative cases end successfully, with an additional 2 percent of cases ending in reconciliation of the clients.)

So how can you become a collaborative lawyer?

The first step is to attend a collaborative training. Fortunately, we are having a training session March 20-22 right here in Tampa. You can find the registration form and learn more about collaborative practice at the websites of Next Generation Divorce, Tampa Bay Collaborative Divorce Group, and the HCBA Collaborative Law Section.

Wednesday, February 5, 2014

Appellate Practice: Pro Bono Opportunities With “Appeal”

By Sarah Lahlou-Amine

A pro bono client’s needs do not always end with a disposition in the trial court. An appeal may be the client’s last hope for justice. Or, a client who has prevailed in the trial court may become an appellee when the other side appeals the favorable result.

For a pro se litigant, proceeding unrepresented in an appellate court can be an overwhelming hurdle to the relief he or she needs. The ability to use one’s legal skills to help someone in need to overcome that hurdle is an incredibly satisfying and meaningful experience.

In addition to being an important component of a pro bono client’s legal needs, appellate pro bono service gives lawyers a unique opportunity to develop their skills and obtain an even more comprehensive understanding of appellate rules and procedures than their everyday practice may afford. Particularly where the client was pro se in the trial court, the uncommon issues that may arise in pro bono cases help lawyers learn the ins and outs of appellate practice, including ensuring a thorough record on appeal, organizing a layperson’s argument into concrete appellate issues, and helping a client minimize appellate costs. In these ways, appellate pro bono service provides great opportunities for a lawyer’s professional development.
The Hillsborough County Bar Association Appellate Practice Section’s Pro Bono Committee has teamed up with the Pro Bono Committee of The Florida Bar Appellate Practice Section to help interested attorneys learn about current appellate pro bono opportunities. The Florida Bar Appellate Practice Section’s Pro Bono Committee maintains a listserv for such attorneys to apprise them of these opportunities as they arise. Both sections welcome members to participate in this program.

The program provides information about pro bono opportunities in a wide array of practice areas in all of Florida’s appellate courts. Members may volunteer for opportunities across the state, regardless of where they routinely practice, because aside from a possible oral argument, the vast majority of a lawyer’s appellate work can be done from the lawyer’s office. Pro bono lawyers participating in the program are invited to work with board-certified appellate specialists who can provide mentoring to assist with the pro bono representation.

The pro bono opportunities available through the program are not limited to direct representation. Opportunities also exist for more limited appellate assistance, including providing appellate advice to legal aid offices across the state on discrete appellate issues as they arise in cases. Opportunities for those interested in program development to expand the provision of appellate pro bono service are also available.

If you have been looking for an “appealing” pro bono opportunity and would like more information about the program offered by The Florida Bar and HCBA Appellate Practice Sections’ Pro Bono Committees, please contact Sarah Lahlou-Amine at

Tuesday, February 4, 2014

Tampa Bay Area Pro Bono Lawyers Mean Business

By Sarah Lahlou-Amine and Traci L. Koster

As practicing attorneys and hard-working members of a thriving business community, we are a very fortunate group. We have the rewarding privilege of advocating for justice to help our clients achieve their goals. This privilege allows us not only the opportunity to make a living in a meaningful way, but it also allows us the opportunity to help those who cannot afford the legal assistance they need to fight for their families, their homes, and, in some cases, even their lives.

Local businesses and law firms recognize the immeasurable value of pro bono service and are leading an ongoing movement to integrate pro bono work into their business models. As part of that movement, the local business and legal communities have joined together to form the Tampa Bay Pro Bono Partnership, a project that pairs local businesses and law firms to provide pro bono service to the members of our community who need it the most.

Harnessing the power of business to help those in need is something our community does exceedingly well. The synergies are countless, and it is to the credit of the decision-makers at our local businesses and law firms who have made it a priority to identify and implement these synergies to help those who are less fortunate.

The Tampa Bay Pro Bono Partnership is scheduled to launch in 2014. It will host two events per year. Each event will begin with a networking reception for participating law-firm attorneys, in-house counsel, and local members of the state and federal judiciary. The reception will be followed by a brief program and breakout session, during which up to three attorneys from each participating law firm will be teamed with up to three in-house counsel from each participating business. Teams will have the opportunity to select from a list of pro bono projects, ranging widely in time commitment and complexity. Each event offers a new opportunity to mix things up, as pairings and pro bono opportunities will vary every time. Team members are encouraged to network and get to know each other while providing service to their community.

In addition to creating a unique platform for networking, the partnership offers participants resources and support, including mentoring, malpractice coverage for a variety of projects, and sponsorship opportunities. The program is supported by members of our local judiciary, who witness the critical need for pro bono service in their courtrooms every day and are excited to participate and see this project take hold.

Participants in the program are encouraged to make it their own by sharing ideas to develop the program to help those in need while achieving their business goals. For additional information about the Tampa Bay Pro Bono Partnership and to find out how you and your organization can get involved, please contact Sarah Lahlou-Amine at or Traci L. Koster at

Monday, February 3, 2014

State Attorney's Message: Search and Seizure of Motor Vehicle Passengers

By Mark A. Ober

Under the United States Constitution, the Fourth Amendment guarantees “(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”  The Florida Constitution provides that this right must be “construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Fla. Const. Art. I, §12. When a vehicle stop results in a passenger being charged with a crime, the legality of the detention or search of the passenger may become an issue in the case.  

Previously, Florida law indicated that a law enforcement officer could not lawfully command a passenger of a vehicle to remain in a vehicle during a traffic stop. Faulkner v. State, 834 So. 2d 400 (Fla. 2nd DCA 2003). Subsequent rulings by the U.S. Supreme Court have held that when a law enforcement officer stops a motor vehicle based on a traffic stop, the driver and all passengers are seized for Fourth Amendment purposes. Brendlin v. California, 551 U.S. 249 (2007). The Supreme Court has held that all occupants of a vehicle are seized when law enforcement stops the vehicle, law enforcement may require passengers to remain at the scene of the traffic stop, and the temporary seizure of the driver and passengers continues and remains reasonable for the duration of the stop. See Brendlin v. California, 551 U.S. 249 (2007); Arizona v. Johnson, 555 U.S. 323 (2009).

In Brendlin v. California, the court held that the passenger of a vehicle that was seized during a traffic stop was entitled to challenge the legality of the stop because “no reasonable person in his position … would have believed himself free to terminate the encounter,” Brendlin, 551 at 257, and the “stop necessarily curtail[ed] the travel a passenger ha[d] chosen as much as it halt[ed] the driver.” Id. In Arizona v. Johnson, the court held that an officer’s pat-down search of the defendant, who was a passenger during a traffic stop, was lawful. Arizona, 555, U.S. 323. Although the police did not have a reason to suspect the car’s passenger of criminal activity at the time of the traffic stop, facts arose during the stop that provided the police with reasonable suspicion for a pat-down search of the passenger. Id. The court relied upon the precedent set by Brendlin, as well as Pennsylvania v. Mimms, 434 U.S. 106 (1977), and Maryland v. Wilson, 519 U.S. 408 (1997). These rulings by the U.S. Supreme Court have extended the same constitutional protections to the passenger of a detained vehicle as are given to the driver, while also allowing law enforcement to develop reasonable suspicion to conduct further searches.

As your state attorney, I will always seek to keep the people of our community safe while respecting the safeguards put in place by the Constitution.

Sunday, February 2, 2014

President's Message: Justice For All

By Susan Johnson-Velez

There are many words you could use to describe me. Some people think of me as a female attorney. Others label me half African-American or, on the flip side, half Filipino. Then there are descriptors such as heterosexual, college graduate, and mother of two. It’s difficult to pigeonhole a person into just one category, especially when such a diversity of interests, experiences, and backgrounds collide to make each one of us unique.

Diversity has been a hot topic for many years but will likely continue to be so in light of the rapidly changing demographics in our country. “Embracing Diversity” was the theme of the Hillsborough County Bar Association’s January Membership Luncheon. The HCBA has a Diversity Committee, of which I am a part. Law firms and other companies have internal panels and groups that work toward the goal of inclusion in the workplace. The conversation has been building, and I’m pleased to see it stretching beyond good intentions and into positive actions.

In the Tampa Bay area, the HCBA’s Diversity Committee is spearheading two great events this year to raise awareness about the importance of diversity in the legal community. The first is the annual Diversity Networking Social, which is in its seventh year and is modeled after a similar event in Miami.

The Diversity Committee has invited students from all of the Florida law schools to come to the HCBA on Saturday, February 22,  for a day of networking with representatives from local law firms and other voluntary bar associations. The social aims to highlight the diversity of the local legal community and to help students connect with professionals who may serve as mentors. If your firm would like to participate in this event, we would love to have you. Please contact committee co-chairs Amanda Buffinton ( or Ronnell Robinzine ( for more information.

Less than a week after the social, on February 25, the committee is hosting a CLE featuring Gilbert King, Pulitzer Prize-winning author of “Devil in the Grove: Thurgood Marshall, the Groveland Boys and the Dawn of a New America.” King’s book recounts in chilling detail the racial injustices that plagued a 1949 rape case in Lake County, Florida. The author will discuss the case and share insights from the book, which fans can get signed copies of at the luncheon. King’s talk will be followed by a panel discussion about the evolution of justice and civil rights. To register, call (813) 221-7777.

Through these two events, the Diversity Committee hopes to provide you with an opportunity to learn from the past and look toward a more inclusive future.

Although headlines of racial injustice may be fading, new tales of immigration challenges and LGBT issues are coming into the spotlight. As we strive to get a better grip on these topics and confront potential injustices, I’d like to leave you with a parting thought: In 1896, the year the Hillsborough County Bar Association was formed, I would not have been able to join because women had not yet been admitted to practice law in Florida. Not to mention the barriers that would have stemmed from the color of my skin. Isn’t it amazing how far we’ve come? Now just imagine how far we can go.

Saturday, February 1, 2014

Editor's Message: The Joys And Pains Of Technology And Social Media

By Rena Upshaw-Frazier

Twitter. Facebook. LinkedIn. Instagram. The “cloud.” DropBox. Summation. Westlaw. Lexis. BlackBerry. iPhone. iPad. The pace at which companies and clever entrepreneurs are developing new ways to create, manipulate, share, and store information is astounding.  Typewriters, once the mainstay for drafting documents, have been relegated to those few documents and envelopes that cannot be altered by computer. Advertising in the Yellow Pages has been replaced by online forums. Electronic mail is replacing “regular” mail.  Electronic filing is replacing paper filing. Indeed, depending on your law practice, it is now possible to have completely electronic ― that is, paperless ― files. Technology and social media are constantly changing and evolving. Consequently, our law practices, and the rules governing them, are also constantly changing and evolving.

Technological advances undoubtedly enhance our business and networking. They allow us to reach more people in a faster amount of time, and we can share information with clients or colleagues in the blink of an eye. For example, with the Hillsborough County Bar Association’s Lawyer magazine, pictures from events are immediately posted to our Facebook page. Members can view them instantly without having to wait for the written publication.

Additionally, electronic databases allow us to access stored information from anywhere in the world. We can now file a document with the court without ever leaving our seat. We can advertise our services to millions of people with a well-placed online advertisement or get access to thousands of potential employers by uploading a resume to one of the Internet job forums or using a LinkedIn profile.
Technology and social media are powerful tools.

However, as has been cautioned throughout history ― with great power comes great responsibility. This rings especially true with technological advances and social media.  Navigating the potential pitfalls of evolving technology can be daunting. The Florida Bar is just starting to scratch the surface in dealing with the landmine of advertising legal services on social media. The procedural and evidentiary rules governing e-discovery are developing every day. Countless articles are being written about protecting a client’s privacy when storing data and information on the “cloud.”

It can be difficult to not only stay abreast of the new technology but also the rules and regulations governing it as they apply to the practice of law. While utilizing social media and technological advances becomes increasingly important, so does the responsibility of using it prudently and with care.

I will be the first to admit that it is not easy to take full advantage of all that these advances have to offer. For example, I dictated the outline of this Editor's Message on my iPhone’s voice memo while waiting at my daughter’s volleyball practice, but then I spent an inefficient five minutes trying to find where it was saved so that I could replay it. I am not alone (hello to those of you who still use the physical case reporters and digests). But at the Lawyer magazine, we strive not only to use technological advances and social media to bring information to you, but also to keep you apprised of some of the ever-changing rules and regulations. Enjoy the February publication!

Clerk Of The Circuit Court's Message: A Positive Step In Firearms Legislation

By Pat Frank

As I write this article for the upcoming issue of the Lawyer magazine, I see by the calendar date that we are approaching the one-year anniversary of the killing rampage in Sandy Hook, Connecticut, when 20 young children and six adults were murdered at Sandy Hook Elementary School.

Unfortunately, that is not an isolated incident.  There have been similar frightening instances this past year of individuals with histories of mental illness who went on shooting rampages.

One way to help prevent these random acts of violence is to tighten up the laws regulating the purchase of firearms.  This past session, the Florida Legislature passed an amendment, which took effect on July 1, 2013, that addressed the circumstances and conditions for prohibiting people from purchasing firearms if they have been voluntarily admitted to a Baker Act receiving facility and the examining physician deems that they are an imminent danger to themselves or someone else.

The challenge is how to best collect, qualify, and report information for the purpose of firearm purchase determinations nationwide ― and how to develop a communication and training plan on behalf of reporting agencies to assist with implementation.

I am proud to say that in the state of Florida, Robin McCarty, manager of the clerk’s Mental Health Department, has been recognized for her work with the MECOM database, which is the Mental Competency database, established in February 2007.  Due to Robin’s efforts, Hillsborough County is leading the state in reports of voluntary commitments, with 375 thus far.

For her leadership, she was asked by the Florida Department of Law Enforcement to serve on a work group for Hillsborough County, representing the clerk’s office, along with General Magistrate Sean Cadigan of the Thirteenth Judicial Circuit, representing the judiciary; Gracepoint, representing Baker Act receiving facilities; and other state agencies.  The group is assigned the task of how to implement this amendment ― collecting, qualifying, and reporting information on firearm purchases by individuals prohibited from doing so.

“Our group is trying to not only identify the practices but also trying to educate the key groups, including the mental health community, doctors, hospitals, and the judiciary, as well as the clerk offices throughout the state,” Robin said.

“We are also going to conduct training throughout the state to spread the word.  It is so important to prevent people who are not supposed to be getting a gun from being able to get one,” she emphasized.

Robin has conducted training for members of the Hillsborough County Sheriff’s Office Crisis Intervention Team to update them on the new legislation.  Along with other members of the training team, Robin is conducting similar statewide training that began in mid-January.  She has also created a form for the officers to hand out, which outlines the steps for petitioners to follow for both the Baker and Marchman Acts.      

This legislation will not prevent all senseless killings, but it is certainly a step in the right direction, and our office is proud to be on the cutting edge.