Wednesday, October 29, 2014

Editor's Message: A Shining Example Of Public Service

By Ed Comey

It’s been more than 12 years, but I can still remember Judge James M. Barton swearing me in to The Florida Bar like it was yesterday. I practically sprinted to the courthouse with my oath of admission as soon as I was eligible to take it. Fortunately, Judge Barton was gracious enough to administer the oath to a young lawyer he didn’t know who showed up at his chambers unannounced, even taking time afterward to explain to me the responsibilities that came with this new profession I was embarking on. I’m honored to have the opportunity to return the favor by writing a tribute to Judge Barton upon his retirement.

But where do I start? I suppose I could list all the awards he’s won, like the Robert W. Patton Outstanding Jurist Award (twice). If I wanted to add a personal touch, I suppose I could tell you some things you probably already know about him: He loves New Orleans and jazz music. Even better, I could tell you some things you may not know. For instance, he was once a redhead — at least until the dye from a (good or bad) Alaskan-cruise salon experience wore off. He also has an exquisite or unrefined sense of fashion, depending on how you feel about Tabasco ties. But none of those things adequately capture Judge Barton’s legacy.

In considering what would, I’m reminded of something Malcolm Forbes said: “You can easily judge the character of others by how they treat those who can do nothing for them or to them.” Judge Barton has spent his entire judicial career helping those who could do nothing for him or to him by championing pro bono efforts so that all Florida residents would have access to justice. It would be impossible for me to list all of Judge Barton’s pro bono efforts here (I only have 500 words), and he probably wouldn’t want me to anyway.  

Suffice it to say, Judge Barton’s extraordinary pro bono efforts earned him the 2012 Distinguished Judicial Service Award from the Florida Supreme Court. In bestowing the award, Chief Justice Charles Canady noted that Judge Barton served as the chairman of the Thirteenth Judicial Circuit’s Pro Bono Committee for 17 years, during which he helped build a pro bono program that is a model throughout the state. On a state level, he helped launch the ONE Campaign, which seeks to improve the poor’s access to justice by challenging every attorney to take on one pro bono client. Justice Canady said it best when he said, “Judge Barton truly is a shining example of public service.”

In humbly accepting the Distinguished Judicial Service Award, Judge Barton asked those in the audience to remember the word “one.” One client. One attorney. One promise. As Judge Barton finishes his career, I’d ask that you remember the words he had me swear to when I started mine: “I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed ...”

Monday, October 27, 2014

Corporate Counsel Section: Dismissing A Derivative Action

By Caroline Johnson Levine
Corporations are managed by elected directors. Shareholders, of course, are the owners of the corporation, at least for the period of time that they retain ownership of stock. Occasionally, a shareholder may file a “direct” lawsuit against the corporation, claiming that the individual shareholder has suffered a distinct injury from the other shareholders. These suits involve statutory or contract rights and seek to recoup dividends or examine corporate records.

However, a “derivative” lawsuit is one filed by a shareholder on behalf of the corporation for claims of fraud, mismanagement, or self-dealing by the directors and officers of the corporation. See Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90 (1991). Importantly, if the derivative action is successful, the corporation reaps the proceeds rather than the shareholder. Additionally, other remedies may result from a derivative action, such as governance reforms, removal of officers or directors, and remuneration of financial losses. Derivative suits by shareholders permit enforcement of corporation claims, ensure equitable recovery by all shareholders, and protect creditors or shareholders from asset distribution to an individual shareholder.

It is important to note that the derivative plaintiff, throughout the litigation, must retain a “legitimate stake in the corporation so that its interests are adequately represented.” See Timko v. Triarsi, 898 So. 2d 89 (Fla. 5th DCA 2005). In Timko, the court found that the derivative plaintiff forfeited his standing in the action upon the sale of his shares in the corporation, by stating that in creating section 607.0740, Florida Statutes, the “legislature has simply manifested its intent to place additional limits upon this preexisting right to ensure that a plaintiff’s stake in the lawsuit is ‘legitimate,’ meaning an ownership interest that is not acquired for predatory purposes.” Id. at 91.

Section 607.07401(3), Florida Statutes, provides an avenue for directors to move to dismiss the derivative action with prejudice. In order to dismiss the action, the directors must appoint an independent investigator who will issue a written report. If the report recommends dismissal and the report was made in good faith and entitled to deference under the “business judgment rule,” the court may dismiss the action. See Klein v. FPL Group, Inc., 2003 WL 22768424 (S.D. Fla. 2003).

Unfortunately, this method of dismissal has generally been difficult to obtain because the courts often question the independence of the investigators. See Kloha v. Duda, 226 F. Supp. 2d 1342 (M.D. Fla. 2002); see also McDonough v. Americom Int'l Corp., 905 F. Supp. 1016 (M.D. Fla. 1995). Another major hurdle is proving that the investigation was “reasonable and objective.” See Batur v. Signature Props. of Nw. Florida, Inc., 903 So. 2d 985 (Fla. 1st DCA 2005); see also Demoya v. Fernandez, 559 So. 2d 644 (Fla. 4th DCA 1990).

Corporations may wish to consider moving to dismiss derivative actions to reduce litigation costs. However, obtaining a dismissal based upon a section 607.07401 investigative report is often an uphill battle.

Thursday, October 23, 2014

Florida Supreme Court Chief Justice To Speak At Membership Luncheon On Oct. 30

Florida Supreme Court Chief Justice Jorge Labarga will be the keynote speaker at the Hillsborough County Bar Association Membership Luncheon during the Bench Bar Conference on October 30.

Labarga was sworn in as the 56th Chief Justice of Florida on June 30, 2014, making him the first person of Hispanic descent to lead the state judicial branch.

At the Bench Bar Conference, he will discuss the development of the state court throughout the years, as well as the significance of diversity in an ever-changing field. As he explained in an article earlier this year in the Tallahassee Democrat: "[My parents] raised children who were taught firsthand the beauty of our constitutional form of government, and children who learned through the experiences of their parents, that for democracy to work, the concept of justice must be applicable, available and accessible to all citizens."

Chief Justice Labarga has been featured in articles in the Miami Herald and the Tallahassee Democrat and has been praised for his "work ethic, keen intellect, and sense of humor." He is a great storyteller, and the HCBA is honored to have him speak at the Bench Bar Membership Luncheon.

The Bench Bar Conference, Membership Luncheon & Judicial Reception will be from 8:30 a.m. to 7:30 p.m. at the Hilton Tampa Downtown. For a rundown of the day's event, check out this article. To register for this year's Bench Bar Conference, go to

The Future Is Now: Law Meets Technology At The HCBA's Bench Bar Conference

Digging up evidence on Instagram. Discovering sensitive case information being shared on Twitter. Researching jurors through Facebook. Technology provides both opportunities and challenges for those who work in the field of law, but one thing is for sure: The legal landscape is changing.     

The Hillsborough County Bar Association is looking to the future with the 18th Annual Bench Bar Conference & Judicial Reception. This year’s theme, "The Future is Now: Law Meets Technology," centers on the technological advancements that have affected the courts and the field of law. The conference will be from 8:30 a.m. to 5:30 p.m. on Thursday, Oct. 30, at the Hilton Tampa Downtown, with a Membership Luncheon at noon and a Judicial Reception starting at 5:30 p.m.

All sessions will touch on the technology theme. To register, go to Here is an outline of the day's agenda:

From 8:30 to 9:20 a.m.: 

There will be a plenary session titled "Ethics Breakfast: Navigating Ethical Entanglements." The objective of this session will be to educate courtroom litigators about potential issues that may result in disciplinary proceedings by The Florida Bar. Ethical and professional conduct will be emphasized as it relates to possible sanctions and disbarment proceedings. The speaker for this session will be Caroline Johnson Levine.

From 9:30 to 10:20 a.m.:

There will be three sections for attendees to choose from. One of the sessions is titled "JAWS vs. E-filing and a Perspective from the Judiciary." The objective of this session will be to provide information on the court’s E-filing system versus JAWS and an overview of judicial preferences and perspectives through a question-and-answer/open panel discussion. The speakers for this session will be Doug Bakke, Tonya GrimesDavid Nickels, Linda Williamson.

The second session to choose from is the "U.S. Supreme Court Term in Review and a Preview." The objective of this session will be to provide an overview of the Supreme Court's October 2013 term, including a discussion of the court’s major decisions as well as trends that can be discerned from the court’s recently concluded term. In addition, the session will consider some of the cases the court has accepted for decision in the October 2014 term. The speaker for this session is Michael P. Allen.

The third option during this time slot is the "View Towards the Bench – Probate" session. View Towards the Bench sessions allow participants to (anonymously and otherwise) discuss relevant issues/topics that they have always wanted to say to the court but perhaps have never had the opportunity to do so. Instead of the traditional “pet peeves” of the judiciary, our judiciary is interested in the “pet peeves” of the litigants, with the ultimate goal to improve Bench-Bar relations in and out of the courtroom. Judge Herbert J. Baumann Jr. and other judges will be the moderators for this session. 

From 10:30 to 11:20 a.m.:

There will be three more sessions for attendees to chose from. The "Weapons of Mass Discovery: Hot Topics in E-Discovery Law and Litigation" session will cover topics such as proposed amendments to the federal rules of civil procedure, litigation holds and preservation, discovery on discovery, and social media evidence. Mac R. McCoy will be the speaker for this session.

The session titled "Kids Are the Future: Help Wanted; Advocates Needed" will cover topics on the history of attorneys ad litem in Hillsborough County, Guardian ad litem advocacy for children, the need for pro bono attorneys to advocate for children, and technology for children in foster care. The speakers for this section will be Judge Ralph C. Stoddard, Rosemary E. Armstrong, Elizabeth L. Hapner, Liza Ricci, and Robin L. Rosenberg.

The "View Towards the Bench – Appellate" session will also occur from 10:30 to 11:20 a.m., and Judge Patricia J. Kelly will be the moderator for this session.

From 1:30 to 2:20 p.m.:

The final set of breakout sessions will be four "View Towards the Bench" sessions for attendees to choose from:

The "View Towards the Bench - Civil" session will be moderated by Judges Herbert M. Berkowitz, William P. Levens, and  Bernard C. Silver.

The "View Towards the Bench - Unified Family" session will be moderated by Judges Catherine M. Catlin, Ashley B. Moody, Nick Nazaretian, and Emily A. Peacock.

The "View Towards the Bench - Criminal" session will be moderated by the Judges Lisa D. Campbell, Kimberly K. Fernandez, Lawrence M. Lefler, and Christopher C. Sabella.

The "View Towards the Bench - Federal" session will be moderated by Judges Caryl E. Delano, Richard A.  Lazzara, and Anthony Porcelli

From 2:30 to 3:50 p.m.:

The plenary session "Social Media and Electronic Information: Sources and Evidentiary Foundation" will explore the increased use of social media information in civil and criminal cases, as well as the evidentiary foundations for admission of this evidence. The speakers for this session are Todd Foster, Tom Palermo, and David A. Thomas.

From 4 to 5 p.m.:

Professor Charles W. Ehrhardt will discuss "Evolving Evidentiary Issues." He will cover the implications of Daubert, admissibility and inadmissibility of expert testimony, admissibility of basis of opinion testimony, and issues in motion practice.

From 5 to 7:30 p.m.:

The conference will conclude with a special presentation for retiring judges from 5 to 5:30 p.m. and the Judicial Reception from 5:30 to 7:30 p.m.

We look forward to an insightful and fun conference with all of our HCBA members. Don't forget to register for the Bench Bar online. We hope to see you all there!

Tuesday, October 21, 2014

State Attorney's Message: Admissibility of Business Records in Criminal Trials

By Mark A. Ober

Criminal trials are frequently the topic of television shows or movies. The drama of the trial is usually shown through the compelling testimony of an eyewitness, the introduction of a murder weapon, or enthralling forensic evidence. The reality of a criminal trial is often more mundane. Although all of those pieces of evidence may be a part of trial, there may be other types of evidence necessary to prove the case. Records of regularly conducted business activity or business records may be introduced in criminal trials and contain facts necessary to prove the elements of the crime charged.

Generally, a written document would be subject to the exclusion of the hearsay rule, § 90.801, Fla. Stat., but an exception to that rule has been created in section 90.803(6), Florida Statutes, for certain business records. The record that is being introduced must qualify as a business record under this statute. A business record is defined as a “memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such” record. § 90.803(6), Fla. Stat. Examples of business records include medical records, repair estimates, receipts, bank records, or phone records.

Normally, a business record that meets this definition would be introduced through the testimony of a records custodian. That witness does not need to be the person who created the document, nor does he or she need to have personal knowledge of the events recorded in the document. See Forester v. Norman Roger Jewell & Brooks Int’l, Inc., 610 So. 2d 1369 (1st DCA 1992); Lowe’s of Tallahassee v. Giaimo, 552 So. 2d 304 (1st DCA 1989).  The witness does need to have sufficient knowledge about the practices of the business and the creation of that business’s record to testify regarding the business record.

A business record may also be introduced through certification or declaration. § 90.803(6)(c), Fla. Stat. The certification must be sworn to by a qualified party and must certify the proper foundation for admissibility. § 90.902(11), Fla. Stat. To admit the record into evidence, the party offering the record must provide reasonable written notice to opposing counsel and must make the record available for inspection. § 90.803(6)(c), Fla. Stat. Although this process is available to admit business records, the offering party may still want to call a records custodian to testify, so that the witness can explain the records to the jury, especially when the business relies on codes in their records.

Even though a business record appears to qualify for admissibility under section 90.803(6), it may still be challenged on other grounds and must still be otherwise admissible. My office is dedicated to protecting the public by securing convictions. Part of that process is obtaining and introducing all admissible evidence needed to support that conviction. 

Friday, October 17, 2014

Tax Law: IRS Modifies Offshore Voluntary Disclosure Program

By Brian R. Harris

Most people probably do not need to consult an attorney to know that there can be criminal and civil penalties for omitting income from foreign financial accounts on their U.S. tax returns. There is also a separate reporting obligation for these foreign financial accounts apart from any information that must also be provided on a U.S. tax return. The Bank Secrecy Act requires that U.S. persons ― a term that includes citizens and residents ― must file a Report of Foreign Bank and Financial Accounts (FBAR) each year by June 30. The FBAR must be filed with the Financial Crimes Enforcement Network, which is part of the U.S. Department of Treasury, and it is generally required for all persons who have an interest in or signatory authority over a foreign financial account and where the aggregate value of these accounts exceeds $10,000.

In order to promote compliance and encourage the disclosure of foreign financial accounts, the IRS instituted an Offshore Voluntary Disclosure Program (OVDP). This program was first offered in 2009 with successive iterations in 2011 and 2012. The IRS recently modified the OVDP, which is primarily for taxpayers whose failure to report foreign financial accounts and pay taxes on income from those accounts was willful. Under these changes, taxpayers will be required to pay the offshore penalty at the time of their OVDP submission. Also, if before the taxpayer submits an OVDP pre-clearance request it becomes public that a financial institution where the taxpayer holds an account is under investigation by the IRS or Department of Justice, then the OVDP penalty will increase from 27.5 percent to 50 percent.

The IRS also expanded the streamline filing compliance procedures, which were previously only available to non-resident, non-filers. The streamline option now includes additional categories of U.S. taxpayers living outside and inside the United States. It also includes amended tax returns, and there is no longer a requirement that the taxpayer have $1,500 or less of unpaid tax per year. Taxpayers who are under civil or criminal investigation are not eligible for the streamline procedures, but taxpayers who have previously made a quiet disclosure are eligible. 

Significantly, the streamline procedures require that the taxpayer certify under penalty of perjury that the taxpayer’s prior noncompliance was not willful. Attorneys will need to ensure that the taxpayer can make such a certification ― something that is likely more difficult now given that the OVDP has been in place since 2009 and the amount of publicity that the IRS’s offshore enforcement efforts against UBS and other Swiss banks have received during this time. Eligible taxpayers who reside outside the United States will have to pay taxes and interest, but the IRS will waive all penalties. Eligible taxpayers who reside inside the United States will have to pay taxes and interest, and they will also have to pay a miscellaneous offshore penalty of 5 percent. 

Executive Director's Message: Honoring The Sacrifice Of Fellow Countrymen

By John F. Kynes

Speaking at the Hillsborough County Bar Association’s September membership luncheon on Sept. 11 ― the 13th anniversary of the 9/11 terrorists attacks ― U.S. Air Force Brig. Gen. Dixie A. Morrow posed a poignant question to those in attendance: “Are we worthy of the sacrifices so many of our countrymen made 13 years ago and every year since?”

In her keynote remarks, Gen. Morrow, commander of the Air Force Legal Operations Agency, reflected on the meaning of 9/11, especially for Florida’s legal community. She also shared her experiences serving in Kabul, Afghanistan, from 2011 to 2013, where she was responsible for establishing a fair and functioning legal system in that war-torn country.

Gen. Morrow said that after many years of war, Afghanistan’s legal system, like much of the country itself, was in “complete and utter shambles.” She added it was vital to establish a legal system in Afghanistan that is “perceived to be fair” by the Afghan people themselves.

This is no small task in a country where, historically, warlords have ruled with an iron fist, Gen. Morrow said.

“However flawed our [legal] system is, our 225 years of constitutional law is the envy of people around the world who have endured centuries of something less,” Gen. Morrow said.

Although progress has been slow in bringing about change, she said, there also have been some successes, particularly for Afghan women. She noted that 13 years ago Afghan girls were not allowed to attend school, whereas today young girls are getting an education, and women have greater opportunities in business and even in the military.

“We know that 13 years is a grain of sand in the hourglass when considering the course of human history,” Gen. Morrow said.

A graduate of the University of Florida Law School, Gen. Morrow said she was “humbled” to be back in Tampa where she began her military career as a staff judge advocate at MacDill Air Force Base.

During her remarks, Gen. Morrow took time to recognize and thank for their service a group of lawyers from U.S. Central Command and the Air Force’s 6th Air Mobility Wing at MacDill Air Force Base who were special guests of the HCBA at the luncheon. Gen. Morrow also recognized Hillsborough County Circuit Judge Gregory P. Holder, a retired colonel who spent 29 years in the Air Force and Air Force Reserves. Holder was recently honored by the Pentagon with the Office of the Secretary of Defense Medal for Exceptional Public Service for his role as state chairman of the Employer Support of the Florida Army National Guard and Reserve.

In addition, Gen. Morrow praised the effort to assist the local military community through the work of the HCBA’s reconstituted Military & Veterans Affairs Committee. This HCBA committee is chaired by Bob Nader, a former HCBA president, and the committee’s military liaison is Lt. Col. Chris Brown, the top military lawyer at MacDill’s 6th Air Mobility Wing.

“While the practice of law is our vocation, how we use our vocation to uplift and encourage others counts for something,” Gen. Morrow said.

Concluding her remarks, Gen. Morrow encouraged the luncheon attendees to support efforts that remind people around the globe about the importance of the rule in law in our society.

Said Gen. Morrow: “Every member of the legal profession should do what we can to protect the freedoms that our laws grant to us. Are we worthy of the sacrifices of 9/11 - The rule of law matters. We know it. And it is up to us to make us worthy of that sacrifice.”

See you around the Chet.

Wednesday, October 15, 2014

Solo & Small Firm Section: Exploiting Technology

By Jack Rosenkranz

Over breakfast at Le Meridian Hotel, James Schmidt and I sat in the historic former federal courthouse to plan our upcoming year as co-chairs of the Solo & Small Firm Section of the Hillsborough County Bar Association. We agreed that the goal this year will be to promote development of our section membership through educational opportunities, networking, and social events. 

In the past, James revealed, educational opportunities for the year tended to focus on a connected theme. After significant discussion, we have decided that technology would be the unifying educational theme. 

Marketing, web pages, newsletters, and presentations build your exposure. Your name is your brand. It has been built with years of hard work. Lawyers have always relied on word of mouth referrals from clients and colleagues to obtain new business. It is a very effective manner to grow your firm. Your reputation for excellent work resulted in a new client seeking advice from you. 

In the 1980s, there were few meaningful guides to direct lawyers or their potential clients to other lawyers. Martindale Hubble ratings and inclusion in the Best Lawyers book were strong endorsements in an industry that traditionally shunned advertisements. Lawyers would purchase listings in these publications to build and manage the lawyer’s reputation. Very little information was readily available about the lawyer, which could not be controlled. 

Today, however, it is likely that potential clients will know more about the lawyer before they walk in the law firm door, than the lawyer will learn from them in the first meeting. This is possible because of technology. Potential clients often run a Google search on the prospective attorney. 

What would your clients find? How much control do you have on information posted?,,, and are all tools that potential clients may review prior to choosing legal counsel. When was the last time you reviewed the information on those sites? What can you post and not run afoul of The Florida Bar ethics rules?

Although this is one issue of technology, the section will be addressing many others. We are planning to have four lunch CLE meetings this year and monthly networking events. If you are a solo or small firm practitioner interested in fresh ideas, additional resources, and expanding your network, then consider joining our section. We look forward to hearing from you.

Tuesday, October 7, 2014

Real Property, Probate & Trust Law: Tenants With "Perpetual Dominion" May Be Assessed Ad Valorem Property Taxes

By William J. Pokolsky III and Derek Larsen Chaney

Following two recent Florida Supreme Court rulings, a tenant under a long-term lease of municipal land is now considered an owner and may be assessed ad valorem taxes on the land and improvements constructed thereon.

At issue in Accardo v. Brown, 139 So. 3d 848 (Fla. 2014), and 1108 Ariola, LLC v. Jones, 139 So. 3d 857 (Fla. 2014), was whether the land and improvements under long-term leases granted by Santa Rosa County and Escambia County were subject to ad valorem real property tax rather than intangible personal property tax.

The properties at issue consist largely of beachfront condominiums, single-family residences, and commercial parcels. The lands were conveyed in the 1940s and 1950s by the United States to Escambia County, which later leased some of the lands to Santa Rosa County pursuant to 99-year leases, generally providing for automatic 99-year renewals. Escambia and Santa Rosa then leased or subleased the properties under similar 99-year renewable terms (collectively, “leases”) to private-party tenants or subtenants (collectively, “tenants”) in order to develop the beachfront land. The leases require tenants to pay rent during the lease term but do not include an option to purchase the land or improvements at the end of the term. Each lease also provides that upon termination of the lease the improvements become county property. Accardo, 139 So. 3d at 849 *1; 1108 Ariola, LLC, 139 So. 3d at 858.

By statute, property originally leased for a term of 100 or more years is considered to be owned by the lessee. Accardo, 139 So. 3d at 853 (citing Fla. Stat. § 196.199(7) (2005)).  Thus, a legal battle ensued when the property appraisers for Santa Rosa and Escambia counties began assessing the tenants’ leasehold interests as if the tenants owned the land and improvements.

The tenants argued at trial and on appeal that they merely rented the land, did not own the improvements at the end of the lease, held leases for fewer than 100 years, and therefore were not legal or actual owners of the land or improvements. Ultimately, they argued they could not have equitable ownership absent the right to acquire legal title.  Accardo, 139 So. 3d at 853; 1108 Ariola, LLC, 139 So. 3d at 859.

The First District Court of Appeal disagreed and concluded that the tenants were the equitable owners of the properties because of the nature of their perpetual leasehold interests.  Accordingly, the First District held that because the tenants enjoyed substantially all of the benefits of ownership, including the rights to construct improvements and mortgage, rent, and convey their interests, their interests were subject to ad valorem taxationAccardo, 139 So. 3d at 849 (citing Accardo v. Brown, 63 So. 3d 798, 801–02 (Fla. 1st DCA 2011)); 1108 Ariola, LLC, 139 So. 3d at 859 (citing 1108 Ariola, LLC v. Jones, 71 So. 3d 892, 893 (Fla. 1st DCA 2011)).  The Supreme Court affirmed the First District’s decisions in both cases, concluding that “[t]he interest of a lessee under a perpetually renewable lease is not materially different from the interest of a lessee under a lease for a term of years providing the right for the lessee to obtain title for nominal consideration upon the termination of the lease. In both circumstances, the lessee effectively has the right to exercise perpetual dominion over the property. Accardo, 139 So. 3d at 856.  

These rulings are likely to have an impact on long-term municipal leases throughout Florida, though neither opinion indicates whether the court would reach the same conclusion with respect to leases with substantially shorter terms but similar tenant rights and responsibilities. Other property appraisers may feel compelled to advance this right to tax land and improvements subject to such leases as real property rather than personal property in order to generate additional revenue for their respective counties.

Friday, October 3, 2014

Professionalism & Ethics Committee: Responsiveness Is An Ethical Requirement

By Caroline Johnson Levine

Periodically updating clients regarding the status of their cases or responding to client requests for information appears to be a deceptively simple task, however, some lawyers have difficulty maintaining this necessary routine. Additionally, if a client files a Florida Bar complaint asserting a lawyer’s failure to maintain contact, it can be a critical error for a lawyer to persist in the habit of unresponsiveness. In fact, the Florida Supreme Court recently disbarred an attorney for failure to respond to requests for information in The Florida Bar v. Davis, 2014 WL 2609210 (Fla. 2014).

Kathleen Davis was retained by the guardian and sister of an Alzheimer’s patient to obtain a divorce on the basis of spousal abandonment. The client paid Davis $5,000. Initially, Davis indicated that she would complete the necessary divorce paperwork within one week and submit it to the client for review. However, Davis delayed the divorce petition for several months and subsequently submitted the documents to the client with several errors contained therein. The client corrected the errors and returned the documents to Davis. However, Davis failed to make any corrections and failed to file the documents and initiate the divorce proceedings with the clerk of court.

In the interim, the patient’s husband initiated the divorce and filed the necessary paperwork. The client attempted to contact Davis to draft a response to the divorce petition. However, Davis would not respond to the client, and the client was subsequently required to file a pro se response. The client filed a complaint with The Florida Bar, and Davis failed to respond to Bar inquiries and failed to attend her disciplinary hearing.

Several ethical rules require a lawyer to act with diligence and maintain communication with a client and The Florida Bar. The Supreme Court disbarred Davis because she failed to participate in her disciplinary proceedings, neglected a vulnerable client, and retained client funds to the client’s disadvantage. In the Davis decision, the Supreme Court restated its findings in The Florida Bar v. Bartlett, 509 So. 2d 287, 289 (Fla. 1987), which clarifies that “a lawyer’s willful refusal to participate at all in the disciplinary process when he is accused of misconduct calls into serious question the lawyer’s fitness for the practice of law.”

It is clear that it can be relatively easy for attorneys to make mistakes and find themselves in a disciplinary dilemma. Therefore, it is important to assist attorneys before they travel down the road of unprofessionalism and receive its resulting sanctions. The HCBA Professionalism and Ethics Committee is devoted to elevating the practice of law to its highest aspirations. This committee endeavors to promote professionalism and ethical behavior in the consciousness of all lawyers and members of the public and is invested in publicizing and participating in this circuit’s Local Professionalism Panel, continuing legal education presentations, and assisting the Thirteenth Judicial Circuit’s efforts to develop professionalism programs. Please consider joining this committee and connecting with its efforts to maintain the legal profession’s highest ideals.            

Wednesday, October 1, 2014

Military & Veterans Affairs Committee: Helping Those Who Have Defended Our Country

By Bob Nader and Lt. Col. Christopher Brown

In the recent past, the Hillsborough County Bar Association has strived to help veterans in the area through the Military Liaison Committee. The committee, which was reactivated in October 2001, attempted to provide some pro bono services to needy veterans in the area. Like most committees, its success depended on who was chairing the committee. As you know, we have a large veteran population in Hillsborough County, whether active-duty service members, military retirees, or those who previously served in the Armed Forces. Unfortunately, some in the last category are homeless, some suffer from service-connected illnesses such as post-traumatic stress disorder, and many are in dire need of legal services.

With that in mind, HCBA President Ben Hill asked us to co-chair and revamp the HCBA efforts to provide services and outreach to veterans under a revitalized and re-named working group, the Military & Veterans Affairs Committee. The initial goal is to develop a self-sustaining outreach program for needy veterans in the area through the establishment of three subcommittees: Pro Bono Services, Education, and Mentoring.

The focus of the Pro Bono Services Subcommittee is to provide free legal services to veterans who meet certain criteria, set up a legal aid clinic at the James A. Haley Veterans Hospital (ideally once a month), and develop liaisons with other local veteran entities, such as the Wounded Warrior Project and the MacDill Transition Assistance Program, in an effort to reach those most in need of services.

The function of the Education Subcommittee is to develop a cadre of subject-matter experts to teach classes or otherwise assist veterans on legal-related issues such as VA benefits and claims, elder law, credit and consumer counseling, landlord-tenant, and family law. Additionally, this subcommittee will offer at least one CLE class during the Bar year on topics such as the effects of post-traumatic stress disorder and how to navigate veterans through the VA claims process.

Finally, the Mentoring Subcommittee will liaison with the local Veterans Court and other veteran entities to link up a veteran in need of mentorship or guidance with a current or former service member in the area. To foster participation, the subcommittee intends to develop a list of potential mentors through local active-duty personnel, former or retired military personnel within the HCBA, and retired military members living in our community.

If you are interested in being a part of the team, please contact one of us. A roster of lawyers, judges, civic leaders, and other individuals within the region who hopefully will become involved with this transformed committee is being created. We are in the infancy of reestablishing this important committee and welcome not only your assistance but also ideas on how we can structure the committee to best serve our veterans. It in an honor for us to chair the committee, and we look forward to working with you.