Friday, May 30, 2014

Professional Conduct: Navigating Ethical Perils Of Social Media Surveillance

By Yvette D. Everhart

With the continued rise in the use of social media, lawyers have turned to social media such as Facebook, LinkedIn, and Twitter to investigate witnesses, parties, and jurors. Although using these forums to obtain information to support a client’s claims seems harmless, lawyers must tread lightly so they comply with the rules on professional conduct. The Florida Bar has yet to issue any opinions on the use of social media as an investigative tool. However, there are numerous ethics opinions in other jurisdictions that provide helpful guidance on professional conduct rules similar to Florida’s.

Several ethics opinions have held that obtaining publicly available information from social media does not violate any rule on professional conduct. See N.Y. State Bar Assn. Comm. Prof. Ethics, Op. 843 (Sept. 10, 2010). However, the circumstances change when lawyers send “friend” requests or requests for information via social networks. Lawyers must use caution when engaging in such practices to ensure they do so ethically. For example, sending a friend request to an adverse party or a witness could violate Florida Rule of Professional Conduct 4-4.2, which prohibits lawyers from communicating with represented parties. See N.Y. State Bar Assn. Comm. Prof. Ethics, Op. 843; see also SDCBA Legal Ethics Op. 2011-2.

Likewise, asking a non-lawyer or third party to send a friend request or contacting witnesses or parties via social networking could also violate Rules 4-4.2 and 4-5.3. Case in point, in August 2012, two New Jersey attorneys were charged with numerous ethical violations when their paralegal friended a represented opposing party. Directing a client to make contact on social media networks could raise ethical concerns as well. See N.H. Bar Assn. Ethics Comm. Advisory Op. 2012-13/05 (June 2013). Thus, it is important that lawyers do not direct a non-lawyer or third party to do what the lawyer cannot do.

Friending a witness or unrepresented party without disclosing the purpose of the friend request or doing so through misrepresentation or deception also can violate the rules of professional conduct regarding misconduct and dishonesty (Rule 4-8.4). See Philadelphia Bar Assn. Prof. Guidance Comm., Op. 2009-02 (March 2009); but see Assn. of the Bar of the City of New York Comm. on Prof. Ethics, Formal Op. 2010-2 (Sept. 2010). This can be true even where the lawyer discloses his or her identity but does not disclose the purpose of the contact. Nor can a lawyer log into someone else’s social media account under the guise of the account holder to try to communicate with parties or witnesses. See N.H. Bar Assn. Ethics Comm. Advisory Op. 2012-13/05 (June 2013).

When it comes to jurors, a lawyer might feel compelled to investigate jurors using social media. In fact, the rules on competence (Rule 4-1.1) and diligence (Rule 4-1.3) imply that a lawyer may be negligent if he or she did not use available methods, such as social media, to investigate jurors. See N.Y. State Bar Assn. Formal Op. 2012-2. Nevertheless, complying with the ethical rules should be paramount. At least two bar associations have held that it would violate the rules regarding communication with jurors and misconduct for a lawyer to send a friend request to a juror through social media. See NYC Bar Assn. Comm. on Prof. Ethics Formal Op. 2012-2 (June 4, 2012); NYC Lawyers Assn. Committee on Prof. Ethics Formal Op. 743 (May 18, 2011). A juror learning that an attorney viewed or attempted to connect on LinkedIn or followed the juror’s Twitter account could also violate the professional rules of conduct.  See NYC Bar Assn. Committee on Prof. Ethics Formal Op. 2012-2 (June 4, 2012).

Thursday, May 29, 2014

Real Property: Tax Certificates 101

By Stephanie Adams

In Florida, if property owners fail to pay real property taxes when due, they risk having their property sold at a public auction to the highest bidder. If the taxes are not paid, a tax certificate will be sold.

On or before June 1, the tax collector must hold a tax certificate sale for unpaid real estate taxes from the prior year. The amount of the certificate is the sum of the unpaid taxes, interest, costs, and charges on the real property. Tax certificates are sold by public auction or electronic sale and awarded to any person who pays the amount of the certificate and bids the lowest rate of interest. The tax certificate sale opens with bidding at 18 percent rate of interest, and the interest rate is bid down until the tax certificate is sold to the lowest bidder.

Once a tax certificate is issued, any person may redeem it before a tax deed is issued and prior to its expiration seven years after the date of issuance. In order to redeem a certificate, the face amount of the certificate plus all interest, costs, and charges must be paid to the tax collector. If a tax certificate is redeemed and the interest earned on it is less than 5 percent of the face amount of the certificate, mandatory minimum interest of 5 percent is levied upon the certificate.

After two years have elapsed since April 1 of the year in which the tax certificate was issued, and before the tax certificate expires, the holder of a tax certificate (other than the county) may apply for a tax deed with the tax collector. Upon filing of an application for a tax deed, the certificate holder must pay the tax collector “all amounts required to redeem or purchase all other outstanding tax certificates, any omitted taxes, any delinquent taxes, any outstanding interest, and current taxes, if due, covering the property.”

Once an application for a tax deed is filed, the clerk publishes a notice once a week for four consecutive weeks in a newspaper available to the public generally where the property is located. The clerk must send notice of the sale to certain persons of record having an interest in the property, including any legal titleholder, lien holder, and any mortgagee, based upon information provided by the tax collector. At a tax deed sale, the property is sold to the highest bidder. Once a tax deed is issued, any mortgages, liens, interests, or other restrictions against the property are extinguished, unless held by the government.

Wednesday, May 28, 2014

Mediation And Arbitration: When Your Case Appears To Reach An Impasse, Consider A High/Low Agreement

By Eric E. Ludin

If the first goal of mediation is to settle your case, the second goal should be to manage your client’s risk. When the mediation seems to be reaching an impasse, a good mediator will encourage the parties to consider the high/low agreement.

In a high/low agreement, the defendant agrees to pay a minimum amount of money regardless of the outcome at trial. The money is usually paid when the settlement agreement is entered into. In exchange, the parties agree that regardless of the verdict, the maximum that will be paid will be an agreed amount. Any verdict between the high and the low will be paid without adjustment.
You understand from your experience the enormous perils associated with going to trial. However, your clients may not fully appreciate the danger of losing a case that should have been won and vice versa.

If you want to be a good advocate and a good risk manager, you should not give up attempting to limit risk even if you cannot settle your case at the mediation conference. You can consider a high/low agreement at any time during the course of litigation. For example, after all the evidence is presented, neither party may have a good sense about the potential outcome. After closing arguments are completed, the parties can enter into a high/low agreement that guarantees a substantial amount of money to the plaintiff and limits the upside to protect the defendant in the event of an exorbitant verdict.

Such a settlement can be structured to make certain that no matter the outcome, neither party will be saddled with a judgment for attorney fees because of prior offers and demands for judgment. The settlement can assure that there will be no appeal and that the monies owed will be paid within a specific period of time. The defendants know that under the worst-case scenario, they will not need to file bankruptcy. The plaintiffs know that under the worst-case scenario, they will receive significant compensation for their losses.

High/low agreements can be even more beneficial to the parties if agreed to before trial. Normally, the low amount is paid upon execution of the agreement. These monies can fund the costs needed to go to trial. Therefore, a high/low agreement can level the playing field for plaintiffs and limit the risk to the defendant. 

A high/low agreement has some risk. The defense can overpay if the verdict is lower than the low, or the plaintiff can be underpaid if the verdict is higher than the high. Be very careful to cover all contingencies in the agreement. Remember that by encouraging your clients to limit their risk exposure, you are being both their best possible advocate and counselor.

Monday, May 26, 2014

Marital And Family Law Final Money Judgement: Is It Worth The Paper It Is Printed On?

By Eliane I. Probasco and Christine L. Derr

Success! You just secured a final money judgment for your client. Now what? Is that final money judgment worth the paper it was printed on? It is, if you know what to do with it.

Record the judgment against real property.

A judgment becomes a lien against real property when a certified copy is recorded in the county in which the property is located. The recorded judgment must contain the creditor’s address or be accompanied by an affidavit stating the address. Fla. Stat. § 55.10(1); Butler v. Butler, 870 So. 2d 239 (Fla. 2d DCA 2004). The judgment shall be a lien in that county for an initial period of 10 years from the date of the recording. Fla. Stat. § 55.10(1). After the initial period of 10 years, the lien may be extended for an additional period of 10 years by re-recording a certified copy of the judgment prior to the expiration of the lien and by simultaneously recording an affidavit with the current address of the person who has a lien as a result of the judgment, order, or decree. Fla. Stat. § 55.10(2). However, “no judgment, order, or decree of any court shall be a lien upon real or personal property within the state after the expiration of 20 years from the date of the entry of such judgment.” Fla. Stat. §§ 55.081. It may take some time to get paid from this type of lien, but it might be just enough to get the debtor to negotiate a payoff of the judgment. 

Establish a lien against personal property.

To establish a judgment as a lien against personal property, a judgment lien certificate must be filed with the Department of State. Fla. Stat. §§ 55.202, 55.203. An execution lien attaches to personal property, including pending lawsuits and workers’ compensation settlements. Id.; Blackman v. State, Dept. of Revenue, 704 So. 2d 1102 (Fla. 1st DCA 1997); Dept. of Revenue ex rel. Springer v. Springer, 800 So. 2d 700 (Fla. 5th DCA 2001). A duly filed lien lapses after five years. Fla. Stat. § 55.204(1). However, liens securing child support are effective for 20 years. Fla. Stat. § 55.204(2). If the debtor in your case is particularly fond of his or her “stuff,” this may get his or her attention.   

Take a deposition in aid of execution. 

Rule 1.560 of the Florida Rules of Civil Procedure provides that a party can obtain discovery in aid of execution. The judgment creditor can request an order requiring the judgment debtor to complete the fact information sheet in form 1.977.  Fla. R. Civ. P. Rule 1.560(b). Additionally, the judgment creditor may take depositions or request the production of documents in aid of execution. Unlike in family court, in some circumstances, the court can require the debtor to supply financial information in form 1.977 about the debtor’s spouse. Fla. R. Civ. P. Rule 1.560 (d).

These are only a few ways to collect on a final money judgment, but it is definitely worth pursuing.

Note: The entry of a judgment for arrearages for child support, alimony, or attorney's fees and costs does not preclude a subsequent contempt proceeding or certification of a IV-D case for intercept, by the United States Internal Revenue Service, for failure of an obligor to pay the child support, alimony, attorney's fees, or costs for which the judgment was entered.  Fla. Stat. § 61.17(3).

Thursday, May 22, 2014

Bar Leadership Institute Celebrates Closing Reception

The Hillsborough County Bar Association's Bar Leadership Institute Class of 2013-2014 wrapped up the Bar year on May 22 with a closing reception at the Chester Ferguson Law Center in Tampa. HCBA President Susan Johnson-Velez and President-Elect Ben Hill IV congratulated the young attorneys on a successful year of professional growth and encouraged them to continue on their path toward leadership within the HCBA.

The 2013-14 class consisted of: Zachary L. Bayne, Kimberly B. Cook, T.J. Ferrante, Melissa Gonzalez, Ashley S. Grant, Alexandra N. Haddad, Lee Harang, Maja Lacevic, Tim Martin, Karen Middlekauff, Jason Montes, Maria Obradovich, Anthony J. Palermo, Rinky S. Parwani, Eliot Peace, Jared Perez, Camaria Pettis-Mackle, Taylor Russo, Anthony Severino, Stathia Sferios, Robert Stines, and John Trujillo Jr.

The participants in this program are young attorneys of diverse backgrounds who have the potential to develop into future leaders. The leadership program is designed to:

- Develop the professional and interpersonal skills necessary to succeed in a group dynamic

- Develop the skills necessary to succeed in a leadership role in professional, service, and extracurricular activities

- Expose and discuss issues facing legal professionals such as time management, public relations, and community involvement

- Increase knowledge of service opportunities in the HCBA and other community outreach programs

- Identify areas where participants would like to provide volunteer service to their community

Each year, the program consists of seven learning modules and culminates with the completion of a community service project that is chosen, managed, and completed by the participants.

If you'd like to be considered for next year's class, please email

The class would like to thank their leaders - Jamie Meola, Dee Anna Hays and Carter Andersen - as well as this year's sponsor: The Bank of Tampa.

Wednesday, May 14, 2014

Law Day Luncheon Celebration Marks End To Successful Bar Year

By John F. Kynes

Fifty years ago, the American Bar Association created the Liberty Bell Award as a way for Bar associations across the country to recognize and honor local citizens who do not practice law but who have worked tirelessly to preserve and strengthen our justice system. The award is presented each year as part of Law Day celebrations, which are traditionally held in the month of May.

The Hillsborough County Bar Association embraced the award from the start, and it presented its first Liberty Bell Award to Robert Thomas in 1964. Other notable winners since then include: Rev. A. Leon Lowry (1980); William F. Poe (1984); Gen. H. Norman Schwarzkopf (1991); Bob Gilder (1999); Jan Kaminis Platt (2000); Tony Dungy (2001); Monsignor Laurence Higgins (2010); and Jane Castor (2013).

The HCBA’s annual Law Day Luncheon this year took place on May 13, and the 2014 Liberty Bell Award was presented to Betty Castor. In announcing Castor as the winner, retired Appellate Judge E.J. Salcines highlighted Castor’s many accomplishments, and he praised her extraordinary commitment to education and to public service.

Salcines noted several of Castor’s “firsts,” including the fact that she made history in 1972 by becoming the first woman elected to the Hillsborough County Commission. Castor also became Florida’s first female Cabinet member in 1986 when she was elected commissioner of education. And, in 1993, Castor was chosen to be the first female president of the University of South Florida.
In accepting the award, Castor praised the lawyers in attendance for their work to help the less fortunate and their commitment to pro bono service. “You are the backbone of our civil society,” Castor told the crowd.

In addition, at this year’s Law Day Luncheon, the 2013 Outstanding Lawyer Award was presented to Bill Schifino Jr. The award is given to an HCBA attorney who, among other things, has exhibited superior legal ability, has demonstrated true professionalism and is respected for ethical practice, is recognized by the public and the legal community for serving as a mentor to others, has performed service to the community on a personal level, and has been actively involved in the HCBA and Bar-related activities. Schifino is the managing partner of Burr & Forman’s Tampa office and concentrates his practice in the areas of securities and business litigation.

Longtime colleague and friend Rob Williams introduced the surprised Schifino as the winner. Williams said he always has admired Schifino’s unique ability “to engage other people in a way that endears him to other people and to work with him to get things done.”

Williams praised Schifino for his professionalism and superior legal ability, and he noted his tireless work over the years on behalf of the HCBA and The Florida Bar. In 1996, Schifino was selected as the HCBA’s Outstanding Young Lawyer, and he served as HCBA president in 2004. Schifino is also the incoming president of the Hillsborough County Bar Foundation.

Williams also noted Schifino’s extensive community service involvement, including his longtime service as a board member of the local Boys & Girls Club.

The Law Day celebration also provided an opportunity to spotlight the good work of the HCBA’s Law Week Committee, which was co-chaired by Kelly Zarzycki Andrews, Amy Nath, and Maja Lacevic. The Law Day theme the ABA selected this year was “American Democracy and the Rule of Law: Why Every Vote Matters.”

Nath, one of the co-chairs, said about 90 HCBA volunteer lawyers helped lead mock trials, courthouse tours, and classroom discussions during Law Week. More than 3,300 local students were involved this year, she said. “Our committee is so proud of the number of local students we are able to reach each year,” she said.

Meantime, the Law Day Luncheon also marks the unofficial end to the 2013-14 Bar year. And under the outstanding leadership of Susan Johnson-Velez, it has been an exciting and eventful year for sure.
From the membership luncheons, the Bench Bar Conference & Judicial Reception, the Holiday Open House, the Diversity Networking Social, the Judicial Pig Roast/Food Festival & 5K Pro Bono River Run, and the Hillsborough County Bar Foundation’s Law & Liberty Dinner, there was something for everyone.

This does not include all the other outstanding CLE programs and other events held throughout the year by the HCBA’s numerous committees and sections, as well as the HCBA’s superb Young Lawyers Division led by Jacqueline Simms-Petredis.

I want to thank all the HCBA board members for their guidance throughout the year, and I’m confident incoming President Ben Hill IV will do a great job leading the HCBA in 2014-15.

Additionally, I know the hard-working HCBA staff will continue to serve the HCBA membership to the best of their ability.

Here’s hoping everyone has a great summer.

See you around the Chet.

Tuesday, May 13, 2014

Betty Castor Wins Liberty Bell Award

The HCBA on May 13 honored Elizabeth B. "Betty" Castor with this year’s Liberty Bell Award, which recognizes outstanding non-lawyer citizens whose community service strengthens the effectiveness of the American legal system.

Castor's dedication to education and public service make her a particularly appropriate recipient of this award. Although her "classroom" grew and changed, her life has always been one of teaching people, old and young, by giving voice to issues and by the examples of leadership roles she has achieved. She sees education as a tool for empowering people to be better citizens in our country, and she has fought for opportunities and justice for all people.

Born in Glassboro, New Jersey, where her father served as the mayor, Castor has focused her professional life on blending education and public service. Armed with a bachelor's degree in education, in 1963 she taught secondary school in Uganda as part of the Teachers for East Africa program. In Africa, she participated in a project to help lead two dozen African girls to the summit of Mount Kilimanjaro, the first all-female expedition to accomplish this.

In 1965, Castor returned to the United States and moved to Dade County. While teaching school, she obtained a master of education degree from the University of Miami. In 1968, the couple moved to Tampa, where she joined the League of Women Voters’ Tampa chapter. She became its president in 1970, the same year her third child was born. In 1972, facing several opponents, she was the first woman ever elected to the Hillsborough County Commission, which she chaired in 1976.

Running on a platform of government reform, Castor was elected to the State Senate later in 1976, becoming only the fourth woman to be elected to that body. She served three terms there. In 1986, she successfully ran a statewide campaign to become the commissioner of education and became the first woman elected to the Florida Cabinet. She served in that position for seven years, during which she helped to establish the first preschool early childhood programs.

In 1994, Castor became the first female president of the University of South Florida. As president, she advocated for funding for higher education and expansion of academic degree programs. She served as president of the National Board for Professional Teaching Standards, urging teachers to pursue rigorous certification standards. Castor returned to USF in 2006 to serve as executive director of the Patel Center for Global Solutions.

Castor's awards include:
- 1996 Florida Women's Hall of Fame
- 2008 Florida Education Association Lifetime Educator Award
- 2009 League of Women Voters Lifetime Achievement Award
- Audubon of Florida, Women In Conservation

Castor currently serves in the following leadership positions:
- The Commission on Federal Election Reform at American University (co-chaired by former President Jimmy Carter and former Secretary of State James Baker)
- Leroy Collins Institute at Florida State University, member of the board of directors (nonpartisan, studies and promotes creative solution to key private and public issues)
- William Fulbright Foreign Scholarship Board, vice chair
- Hillsborough County Education Foundation, board member
- Tampa Bay History Center, board member

Betty Castor is an outstanding non-lawyer citizen of Hillsborough County who has dedicated her life to education and public service and who currently contributes a considerable amount of her time to community service aimed at achieving fairness and justice for all. An educated populace makes for a more informed citizenry, better equipped to make good choices for themselves and their families. She has worked to ensure teachers are well qualified to do their jobs, and that educational opportunities for young and older students have been expanded.

She continues to work to ensure elections are fair. And, her numerous "firsts" in attaining leadership positions as a woman have encouraged other women to strive for greater heights in their careers.

Bill Schifino Jr. Honored with Outstanding Lawyer Award

The HCBA honored Bill Schifino Jr., managing partner in the Tampa office of Burr & Forman, with its Outstanding Lawyer Award at the annual Law Day Luncheon on May 13. Schifino received the award because he has made a significant difference in the practice of law and the community due to his personal and professional ethics and conduct.
Schifino concentrates his practice in the areas of securities litigation and arbitration, business litigation and trial practice, intellectual property litigation, business tort litigation, and professional malpractice. He has extensive experience arbitrating and litigating complex cases before federal and state courts, the National Association of Securities Dealers, and the New York Stock Exchange, now known as “FINRA.” In addition, he has broad experience in representing businesses in various stages of growth, from negotiating and structuring transactions to assisting in strategic planning, corporate expansion and exit strategies. Schifino currently serves on the board of directors of various companies.
Schifino is “AV” rated, certified by The Florida Bar as a specialist in Business Litigation Law, and has been recognized by his peers as one of Florida’s “Legal Elite” and “Super Lawyers.” In addition, he has been regularly elected for inclusion in “The Best Lawyers in America” in the area of commercial litigation.

In 1996, Schifino was recognized as the Hillsborough County Bar Association’s Outstanding Young Lawyer. In 2004, he served as the Hillsborough County Bar Association president and, in 2008, was elected to serve as a member of The Florida Bar’s Board of Governors, representing the Thirteenth Judicial Circuit. He is admitted to practice in the state of Florida, the United States District Court for the Middle District of Florida, the United States Court of Appeals for the Eleventh Circuit, and the Supreme Court of the United States.

Schifino served as a member of the Thirteenth Judicial Circuit Judicial Nominating Commission, including serving as its chairman, having been appointed by Gov. Charlie Crist. Schifino is actively involved in many community and professional activities, including serving as president of the Tampa Bay Little League and more.

Monday, May 12, 2014

Health Care Law: Patient Has An Enforceable Advance Directive ― Now What?

By Kristin K. Morris

In Florida, a competent individual has a variety of choices to ensure that his wishes are carried out should he lose capacity to make his own medical decisions. These choices are generally referred to as advance directives. This article will examine the procedure for invoking a valid surrogacy, proxy, and a living will. 

When a surrogate or proxy is involved, the surrogate or proxy’s power is not invoked until the patient is deemed incapacitated. If the patient’s capacity is in question, the attending physician must first evaluate the patient and document the evaluation. Although a second physician’s opinion is only required in the event that the attending physician has a question as to capacity, obtaining the second opinion is always a good idea. Upon determination of incapacity, the facility or provider will then notify the surrogate or proxy in writing that the surrogacy or proxy has commenced. The surrogacy or proxy shall remain in effect until the patient regains capacity.    

Similarly, the terms of a living will regarding life-prolonging procedures are not invoked until it is determined that: 1) the principal does not have a reasonable medical probability of recovering capacity; 2) the principal has a terminal condition, an end-stage condition, or is in a persistent vegetative state; and 3) the limitations and conditions expressed orally or in a written declaration have been carefully considered and satisfied. To determine whether the patient has a terminal condition, an end-stage condition, or is in a persistent vegetative state; may recover capacity; or whether a medical condition or limitation referred to in an advance directive exists, the patient’s attending physician and at least one other consulting physician must separately examine the patient. The findings of each examination must be documented in the patient’s medical record and signed by each physician before life-prolonging procedures may be withheld or withdrawn.

In conclusion, once a patient has a valid advance directive in place, the patient’s capacity is the key to invoking the terms of a valid surrogacy, proxy, or living will regarding life-prolonging procedures. Once incapacity is determined, the terms of the advance directive should be followed by the health care provider. 

Thursday, May 8, 2014

Criminal Law: The Republication Of Mug Shots Online

By Morgan Vasigh

Sheriffs’ offices across the United States, including the Hillsborough County Sheriff’s Office, publish arrest records and booking photos online. Arrest records are public records, and the publication of arrest data on these websites provides the public with easy access to view and inspect records.

However, private entities have been taking (lifting, scraping, stealing, copying) arrest records and mug shots in bulk from sheriffs’ office websites and republishing them on private websites (e.g., The private entities then use search engine optimization to maximize each arrestee’s Web exposure. Thus, a quick search of an arrestee’s name in a search engine will not only yield a Facebook or LinkedIn page, but a mug shot if one has been copied by one of these private websites. Plus, the mug shot will appear at the top of the search results.

Most of the private entities that republish mug shots online will not remove a mug shot from their websites — regardless of the crime, whether charges were filed, or the disposition of the case. However, if you pay a service fee (it can run up to $399 to remove just one mug shot), the photo will be removed from that one particular website. To remove it from one of the dozen other mug shot sites, you must pay each site separately. Some mug shot websites direct arrestees to use an “authorized” removal website. Arrestees then pay the fee to the removal website instead of the mug shot website directly. However, most removal websites appear to be closely related to the mug shot websites, and it is suspected that they are operated by the same private entity. 

During the 2014 legislative session, two bills were introduced that seek to prohibit individuals (and business entities) from charging arrestees to remove or modify arrest data from publications such as these websites. H.B. 265 (2014), S.B. 298 (2014). Similar bills were introduced in 2013 but were unsuccessful. H.B. 677 (2013), S.B. 1060 (2013). Sheriff Bob Gualtieri announced in early January that the Pinellas County Sheriff’s Office will stop posting mug shots online.

Proponents of the mug shot websites contend that mug shots are public records and the mug shot entities, as news outlets, are exercising their First Amendment rights. On the other hand, opponents argue that mug shot websites are violating arrestees’ right of publicity under Florida Statute § 540.08 because they publish arrestees’ photographs (booking photos) for a commercial purpose without obtaining consent from the arrestees. They also assert that making an exact copy of arrest data from a sheriff’s website and republishing the data “as is” (and then charging for removal) does not meet the “newsworthy” exception.

Although mug shots are public records, opponents argue that the public does not have free rein to do whatever it pleases with the mug shots. For more details on the legal argument, please see “Smile, you are under arrest: the misappropriation and misuse of mug shots online,” published in the Information & Communications Technology Law journal.  There is also currently a class-action lawsuit against these mug shot companies going on in our backyard.

Federal Fraud Statutes: A General Counsel’s Nightmare

By John F. Lauro

The federal criminal fraud statutes ― covering mail (18 U.S.C.A. § 1341 (West 2014)) and wire fraud (18 U.S.C.A. § 1343 (West 2014)), health care fraud (18 U.S.C.A. § 1347 (West 2014)), bank fraud (18 U.S.C.A. § 1344 (West 2014)), and securities fraud (18 U.S.C.A. § 1348 (West 2014)) ― create enormous potential liability for corporations and their employees. They also present considerable challenges for counsel representing those corporations. Each statute prohibits “schemes or artifices to defraud.” The problem is that Congress has never defined these terms, and the interpretation of the statutes has been left to the courts, with decidedly mixed and unclear results.

Indeed, during oral argument before the Seventh Circuit Court of Appeals, the Department of Justice conceded that a simple practical joke could be prosecuted under the mail fraud law. United States v. Walters, 997 F.2d 1219, 1224 (7th Cir. 1993). In another instance, a court held that the criminal law could be broken by violations of “moral uprightness” or “fair play” ― whatever that means. Gregory v. United States, 253 F.2d 104, 109 (5th Cir. 1958). The potential breadth of the federal fraud statutes gives prosecutors incredible discretion to prosecute alleged business crimes where companies and individuals have no reason to believe that their conduct is in any way “illegal.” Not surprising, one former federal prosecutor described the mail fraud statute (which is the mother of all of the fraud provisions) as “our Stradivarius, our Colt .45, our Louisville Slugger, our Cuisinart ― and our true love.” Jed S. Rakoff, The Federal Mail Fraud Statute (Part I), 18 DUQUESNE L. REV. 771 (1980).

The uncertainty and ambiguity of what conduct could be deemed “criminal” under federal law allows prosecutors to threaten and bring cases that fall well outside traditional common law notions of “fraud.” A criminal case might be brought where there has been no reliance upon alleged misrepresentations, no actual loss suffered, and no breach of a contract or other legal duty. Executives face substantial risk that ordinary business practices might one day be prosecuted as a “fraud.” 

The potential scope of the fraud statutes also allows any administration to “regulate by prosecution.” In other words, the fraud statutes become powerful tools to achieve political objectives of the party that happens to be in office.

The Supreme Court, from time to time, has weighed in to limit the scope of the federal fraud statutes. See McNally v. United States, 107 S. Ct. 2875 (1987) (striking criminal prosecutions of “honest services” fraud absent clear direction from Congress); United States v. Skilling, 130 S. Ct. 2896 (2010) (limiting the scope of honest services fraud to traditional kickbacks and bribes). However, Congress has shown no interest in defining “schemes to defraud” with any clarity or giving guidance to the business community as to the conduct to be proscribed by the harshest penalties imposed by our society. The political use of the fraud statues is obviously too compelling.

Where does this leave corporate counsel? Sadly, with the understanding that criminal fraud is whatever 12 people (none of whom have any understanding of your business) in a jury box say it is.

Monday, May 5, 2014

Construction Law: Relation-Back Is ... Back

By J. Derek Kantaskas and Elizabeth Lester

Florida attorneys kept in limbo by conflicting appellate opinions concerning the application of the relation-back doctrine have received new guidance. In Caduceus Properties v. Graney, the Florida Supreme Court held that naming a party who had previously been a third-party defendant as a party defendant in an amended complaint relates back to the filing of the third-party complaint for statute of limitations purposes. The Supreme Court was reviewing Graney v. Caduceus, LLC, 91 So. 3d 220 (Fla. 1st DCA 2012), where an owner had filed direct construction defect claims against an engineering firm (KTD) and the engineering firm’s principal (Graney) over a defective HVAC system. The complaint came four years after KTD and Graney had third-party complaints filed against them by the architect of the HVAC system in the same matter and five years after the owner initially discovered the HVAC issue. KTD and Graney alleged that the five-year gap between the discovery of the HVAC issue and the direct complaint against KTD and Graney violated a four-year statute of limitations.

The Supreme Court made its ruling after weighing the decisions made in two conflicting Florida appellate opinions. In Graney, the First District Court of Appeals held that direct claims brought against an existing third-party defendant after the expiration of the statute of limitations did not relate back to the filing of the original complaint. This holding was in direct conflict with a previous decision by the Fifth District Court of Appeals in Gatins v. Sebastian Inlet Tax Dist., 453 So. 2d 871 (Fla. 5th DCA 1984), where a third-party claim was not barred by the statute of limitations because the third-party defendant was in the lawsuit before the statute of limitations expired and the plaintiff’s claim related to the same issues raised in the third-party complaint.

The Supreme Court’s decision, authored by Justice Barbara J. Pariente and heavily influenced by the dissent in Graney written by Judge William A. Van Nortwick Jr., adopted the rationale of the Fifth District, stating that allowing third-party claims to relate back for purposes of timeliness was more in line with the intent of the relation-back doctrine in Fla. R. Civ. P.1.190(c). Justice Pariente wrote, “Permitting relation back in this context is also consistent with Florida case law holding that rule 1.190(c) is to be liberally construed and applied,” and she added the main concern of the relation-back doctrine is providing “fair notice” to parties who may be blindsided or prejudiced by unexpected claims.

The court went on to state that the key inquiry now for lower courts shall be (1) whether the third-party complaint was filed before the statute of limitations expired, and (2) whether the plaintiff’s claims in the amended complaint relate to the same “conduct transaction, or occurrence,” set forth in the previous third-party complaint. This inquiry, the court explained, is preferable over the Graney rationale, which was “inconsistent with … the policy underlying the Florida Rules of Civil Procedure that cases should be resolved on the merits whenever possible.”

The effects of this decision will assuredly have an impact on parties in complex and protracted multi-party litigation, some of whom may find themselves facing claims they previously believed long expired.

Friday, May 2, 2014

Florida Bar Foundation: Helping The Youngest Foster Children Find Safety And Permanence

By Hala Sandridge

Three siblings, all age 5 or younger, had to be removed from their home because of their parents’ mental health and domestic violence problems. After spending more than a year under the care of foster parents, the oldest, speaking for the three, said that if they could not be reunited with their parents, they wanted to be adopted by their foster parents.

However, after parental rights were terminated, the community agency contracted by the Department of Children and Families developed a plan to place the children with a single woman in her 60s who had adopted 25 children, one of whom was a half-sibling unknown to the other three.

The children’s Attorney ad Litem from the L. David Shear Children’s Law Center at Bay Area Legal Services recognized that the children were thriving with their foster family, who loved them and wanted to adopt them. She immediately intervened and succeeded in obtaining the placement the children had wanted all along. On the way to their reunification with their foster parents, the oldest said he felt they were going “home.” By the end of that year, the Attorney ad Litem had their adoption finalized, and the children were part of a forever family.

Fortunately, help was available through the L. David Shear Children’s Law Center, which represents children up to age 5 and their older siblings, striving to provide safety and permanence within the statutory time frame.

Recognizing that children have special legal needs, and that those needs were going largely unmet, The Florida Bar Foundation began funding special annual grants for legal assistance to children in the early 1990s. The foundation's priorities for its Children’s Legal Services grants include representation of foster youth and access to special education, medical, developmental, and mental health services that are required under law. Bay Area Legal Services has received $996,108 in Children’s Legal Services grants from the foundation since the program began.

Unfortunately, the devastating impact of low interest rates on revenue from Florida’s Interest on Trust Accounts (IOTA) program has drastically reduced the funds available for all of the foundation’s grant programs, including Children’s Legal Services. Although the L. David Shear Children’s Law Center is doing important and often life-changing work on behalf of children such as the siblings described above, the project was among those that, regrettably, will not receive Children’s Legal Services funding from the foundation for 2014. The foundation will continue to help fund Bay Area Legal Services through general support and salary supplementation grants, as well as law school loan repayment assistance for its staff attorneys.

Beyond the foundation’s funding, the L. David Shear Children’s Law Center has received support from the Hillsborough County Bar Foundation and private donations. We thank all the organizations and individuals who have made the L. David Shear Children’s Law Center a success. With your financial support, the center can continue to provide high-quality legal representation for children in the foster care system.

Thursday, May 1, 2014

Judge Moody Goes Off the Record

By Michael S. Hooker

The following is an edited excerpt of an interview with the Hon. James S. Moody Jr., U.S. District Court judge, conducted by Michael S. Hooker.

Q. Judge, I know that you are from Plant City. Did you grow up there?

A. I was born and raised in Plant City.

Q. Now, you practiced law in Plant City before becoming a judge, as I understand it.

A. Yes.

Q. What kinds of work did you do?

A. I was a small-town trial lawyer. By that I mean I tried all kinds of cases except medical malpractice because all the doctors in town are your friend so you don’t do medical malpractice. I did very little bankruptcy mainly because of Judge Paskay, who would chew anybody up if they weren’t, you know, frequent practitioners of bankruptcy. And I did some criminal work as a young lawyer, but not a whole lot. But I did every other kind of civil trial that you can imagine, which actually serves me well as a judge because I know a little bit about a lot of different things.

Q. You have an impressive history of community and civic involvement, and I’m just going to mention a few because it’s a very long list. You served on the board of directors of the United Way, the board of directors of Hillsborough County Bar Foundation, you were president of the Hillsborough County Bar Association, chair of the Children and Families Work Group, president of the Lions Club, served on the University of Florida Law Center Association Board of Trustees. That’s an impressive list, but the thing that I find most interesting and little bit unusual is that you continued that involvement in civic and community affairs even while sitting on the bench. Why is that?

A. Well, I just think that is important. And I did that more as a state judge than I do as a federal judge. I just don’t seem to get asked as frequently as a federal judge to get involved. Although, I think I was on the bar foundation board for a while as a federal judge. Maybe it’s because I’m getting older now that I’ve slowed down in that regard, but I just always thought that civic contribution is important.

Q. I saw in your bio that you’ve actually taught a lot. You taught a number of courses over the years at various judicial educational conferences, and you’ve also taught at the University of Florida and served as a mock trial judge with Stetson College of Law. Do you like teaching?

A. Well I do enjoy that and, as a matter of fact, when I take senior status, that’s one thing I probably will consider, is doing some teaching. The University of Florida has talked to me some about that. Part of that was when I was a state circuit judge teaching courses at our annual educational conferences, and then some of it, I’ve been doing some internship programs with the students at University of Florida once a year, and I’ve enjoyed that student involvement. And then during the summers I have student interns come in and work here in the courthouse. I work with them on legal writing and drafting, that sort of thing.

Q. I know that you were a state judge for about five years before being appointed to the federal court?

A. Almost six years.

Q. What would you say is the biggest difference between serving as a state judge and now as a federal judge?

A. The biggest difference for me is the contact with lawyers. I understand things have changed since they have the new state courthouse, but when I was a state judge, lawyers would just drop in and say hello and sit down and chat. We’d have hearings and a lot of times you could joke with the lawyers, and I enjoyed that. If I ever felt like I was sitting in my office and wanted to go talk to somebody, you could just walk out in the hallway and there were always lawyers out in the hallway. Well that’s not the way it is in federal court. Lawyers are rarely in federal court, not out in the hallway in front of your courtroom. They very rarely come by to say hello. We just … we’re much more cloistered here, I suppose. Bill Levens tells me that the new state courthouse is almost the same now.

Q. Federal court is much more paper-driven, at least from my standpoint. Most motions are not heard but decided on the briefs. What are the pluses and minuses of that approach as opposed to the state court system?

A. Well, under the federal rules, every motion has to be accompanied by a legal memorandum, and a lot of times that’s unnecessary, but it does help the judge get prepared for what the issue is. Once you’ve read a memo on both sides, there is not much need, at least that’s how most judges think about it, there is not much need for an oral argument. I still like having hearings, so I’ll still have hearings in a lot of my cases. As a matter of fact, I think you’ve had hearings in my courtroom. I do my hearings down at the counsel table.

Q. Well, I do remember that. You come right down and sit with the lawyers. Why do you do that?

A. Well, the first day I had a hearing as a federal judge, it just happened to be a hearing that only one side showed up. So I’ve got a lawyer on one side, an empty chair on the other, and I’m sitting up on the bench in my robe. And so I’m asking the lawyer about the case, what’s going on with it, and he’s so nervous that his voice is quavering. And I said, gosh, you know, I’m not here to make somebody scared, and I’m just not going to do it this way anymore. And so from that day forward, I’ve gone down to the counsel table. I thought I would put counsel more at ease that way, although I’ve had some lawyers tell me it’s worse because you’re sitting right there. But I thought I’d be putting them more at ease, number one, and then number two, I think I can control the flow of information more efficiently. I can say, “Ok, I’ve heard enough,” and look at the other lawyer and say, “What do you say about that?”

Q. You’ve obviously served on the bench for almost 20 years now. Is there any one or two cases that stand out more than the others, in that the case had really stimulating or interesting legal issues that you recall?

A. Well … the first one that comes to mind is the [Sami] Al-Arian case, and that was really interesting because it was a top-secret case. I had to have a safe delivered to my office, which was kept under lock and key, [for] the top-secret documents. I never even opened the safe. I never went and looked at any of those documents because I didn’t think it was necessary for me to try the case. 
Then I had the trial of the president of the Outlaw motorcycle gang, and he was convicted of murder. That was a really interesting case to find out about the inner-workings of the Outlaw motorcycle gang. 

As a state trial judge, one of my most interesting cases was as a divorce judge in which Ray Alley represented a bank vice president, and another lawyer represented the husband. They didn’t have any children, and they were fighting over a parrot ― Harvey the Parrot. And the husband had taken Harvey the Parrot, and she wanted the parrot. So they were squabbling back and forth. They came in for a visitation hearing for Harvey the Parrot. The husband didn’t want to let her have visitation. His given reason was that he didn’t think she would return Harvey; I think the real reason was whatever he could do to antagonize her, he was going to do. So anyway, I ordered visitation with Harvey, so she picked up Harvey and took him for half a week or whatever and then brought a parrot back. Two weeks later, we had another emergency hearing. This time it was the husband saying that she didn’t bring back Harvey.  She had brought back another parrot. So I asked her about that. I put her under oath and asked her, she said, “Oh no, that’s Harvey, I brought the parrot back like you ordered me to.”

And so I turned to the husband and said, “Well what makes you think this isn’t Harvey? Is it the same kind of parrot?” 


“Does he look like Harvey? Is it the same size? So what makes you think it’s not Harvey?”

“Well, this parrot likes me and Harvey never liked me.”

So he said he wanted a DNA test. I said, “You can’t be serious!”

“Yes, I want a DNA test.”

I said, “You know, I do child support hearings, paternity hearings, and I know that DNA tests cost about $700. My guess is this parrot didn’t cost $700, and now, even if it’s not Harvey, you’ve got another parrot.” 

“I want Harvey, and I want a DNA test.”

Well, I said, “If this is not Harvey, what are you going to do a DNA test on?”

He said, “I still have Harvey’s cage, and the feathers fall out from time to time, and so I’ve got some of Harvey’s feathers.” 

I said, “Ok, I’ll allow you to do a DNA test.” 

So he paid for a DNA test, and it was not Harvey! So then we had a contempt hearing. So here comes Ray Alley, my former law partner, representing this meek and mild ― most of the time ― female bank vice president knowing that she’s getting ready to go to jail.

Q. For switching the bird.  I was going to ask you next what’s the funniest thing that happened in your courtroom ― that might have been it.

A. That was the funniest thing that’s ever happened.

Q. I attended a seminar that you spoke at a few years ago, and you mentioned that it seemed like every other brief you were getting, one lawyer was accusing the other lawyer of being “disingenuous.” That seemed to be the word du jour. Are there any things that you see lawyers doing on a routine basis that you wish you weren’t seeing?

A. Well, what you just asked about is a good example. When you read a memorandum, it seems like the first three or four pages are all about all the bad things the other lawyer has done, but that’s really something that’s irrelevant to the decision that I’m trying to make so why waste three or four pages? You’ve only got a certain limited number of pages. So if they would just leave out telling me all of the bad things the other lawyer has done, it would help me get to the issue more quickly, and I could read the brief more quickly.

Q. When they built this courthouse, they obviously built in the capacity to use a lot of technology at trials. What kinds of technology do you like to see being used when you try a case?

A. Actually, the best one is the document presentation with the computer system through the overhead projector. A lawyer can scan all the documents and have them on the computer, and when he questions the witness, say “Let me show you document 323,” somebody at the table pushes a button and document 323 comes up on the screen instead of the lawyer coming over to the table with banker boxes full of documents, fumbling through to pull 323, and then you’ve got to worry about getting document 323 back in the right place in the box or else you know you’ve lost it forever.

Q. Judge, what kinds of hobbies or interests do you have? What do you like to do when you’re not here?

A. Well, I like to play golf, and my wife and I go snow skiing about once a year. I love doing things with my children and grandchildren; like last night we had a cookout at my son’s house.  Most of the time we’ll have a cookout at my condo, but I’ve got five grandchildren now so we’re a pretty large crowd when we get together for our cookouts. The crowd has just about outgrown my condo.

Q. What would you consider your most substantial, personal or non-professional accomplishment? That’s a hard one.

A. What I’m most proud of is that I’ve raised four children ― all have jobs and never were on drugs
and never been in jail, so I guess that’s my number one.

Q. Judge, do you have any advice for young lawyers entering the profession?

A. My advice is that remember that you need to enjoy what you’re doing, and if you’re always arguing with another lawyer, that’s hard to enjoy. So try to get along and try to work together toward getting your case to trial. If you can remember that the ultimate goal is going to trial, not fussing and fighting with the other lawyer, hopefully it will make your life more enjoyable.