Sunday, November 30, 2014

Pro Bono Committee: How Did You Celebrate National Pro Bono Week 2014?

By Amy L. Bandow

Once each year, the American Bar Association designates a week to celebrate pro bono legal service. It is a week when legal communities across the nation strive to not only help those who cannot afford much needed legal assistance but also to bring awareness to the need for such services and recognize the great efforts of its members. The ABA designated October 19-24, 2014, for the National Pro Bono Celebration.

The Thirteenth Judicial Circuit’s legal community got a head start on the celebration by kicking off its activities on October 7 with a Business Law Advice Clinic for Nonprofits. The event took place at the Judge Don Castor Community Law Center, a project of the Bay Area Volunteer Lawyers Program. The event provided an opportunity for nonprofit organizations to have a free consultation about transactional matters. The celebration continued with a Wills for Heroes event at the Hillsborough County Bar Association on October 11. At the event, attorneys and paralegals came together to prepare wills and estate planning documents for first responders. The following week, the Board of County Commissioners for Hillsborough County issued a proclamation declaring the week of October 19, 2014, to be Pro Bono Week in Hillsborough County. During the proclamation presentation, the Thirteenth Judicial Circuit’s Pro Bono Committee unveiled a new pro bono recruitment video featuring local attorney Betsey Hapner and one of her very appreciative pro bono clients. The video was created ― pro bono ― by Larry Wiezycki, a member of the media team at the law firm of James, Hoyer, Newcomer & Smiljanich, P.A. Additionally, the HCBA’s Young Lawyers Division hosted a luncheon focused on pro bono and community service opportunities. The George Edgecomb Bar Association also got a head start on Pro Bono Week by hosting a Legal Redress Workshop for the public on October 18. At the workshop, GEBA members taught one-hour courses on several topics.

Pro Bono Week featured, among other events, an information table in the George Edgecomb Courthouse. Bay Area Legal Services staffed the table to distribute information about local pro bono programs to members of the public seeking assistance and attorneys interested in donating their time and talents. Pro Bono Week also included a kick-off reception for a new initiative – the Tampa Bay Pro Bono Partnership  which provides an opportunity for in-house counsel to team up with attorneys from private law firms and perform pro bono service together. Additionally, the Tampa Hispanic Bar Association hosted a seminar and pro bono case adoption event about domestic violence. The week concluded with a Regional Training for Guardian Advocate Cases, which was hosted by a collaborative team of organizations, including the Bay Area Volunteer Lawyers Program, Community Law Program, Legal Aid of Manasota, and Bay Area Volunteer Lawyers Program Northwest. The training was offered free to attorneys willing to accept a pro bono guardian advocate case.

Last but not least, Crossroads for Florida Kids extended the Pro Bono Week Celebration into November and hosted a free training/CLE seminar regarding representing children in dependency and delinquency proceedings.

If you are interested in participating in the Thirteenth Judicial Circuit’s Pro Bono Committee or learning more about the committee’s member organizations mentioned in this article, please contact Committee Chair Rosemary Armstrong at

Friday, November 28, 2014

Health Care Law: The Winding Path Of The Stark Law And Medicaid Claims

By Melissa A. Mora

If the Stark law, 42 U.S.C. § 1395nn, was not perplexing enough, recent decisions and settlements have made it even more puzzling. Until the past few years, the federal government primarily enforced the Stark law through false claims act cases where providers engaged in some type of prohibited relationship with a physician resulting in improper referrals from that physician and the submission of a Medicare claim.

The Omnibus Budget Reconciliation Act of 1993 amended the federal statute governing payments to states - 42 U.S.C. § 1396b. The Omnibus Budget Reconciliation Act of 1993, Pub. L. No. 103-66, (Aug. 10, 1993). Specifically, this regulation provides that no Medicaid payment shall be made for the provision of a designated health service to an individual on the basis of a referral that would result in the denial of a payment under the same terms and conditions for a Medicare claim under the Stark law. This legislation increased the existing misperception as to the application of the Stark law on Medicaid claims.

In an effort to clarify some of the confusion, the Centers for Medicare and Medicaid Services (CMS) indicated in commentary that it does not believe the rules and sanctions under the Stark law apply to physicians and providers when the referral involves Medicaid claims. 63 Fed. Reg. 1659, 1704 (January 9, 1998). This was further complicated as CMS went on to say in the same guidance that it cannot pay for Medicaid claims that violate the Stark law, but that the state could. CMS declined to finalize the proposed language and, to date, has not issued any further commentary as to the Stark law’s reach in Medicaid cases.

Over the past few years, a number of courts interpreted 42 U.S.C. § 1396b to extend the Stark law and false claims liability to Medicaid claims. See Fresenius Med. Care Holdings, Inc. v. Tucker, 704 F.3d 935, 937 (11th Cir. 2013); United States v. Tenet Healthcare Corp., 2012 WL 2871264, at *6 (S.D. Fla. July 12, 2012); United States v. Halifax Med. Ctr., 2012 WL 921147, at *3-4 (M.D. Fla. March 19, 2012).

More recently, in United States v. All Children’s Health Systems, Inc., 2013 WL 6054803 (M.D. Fla. Nov. 15, 2013), the court denied the defendant’s motion seeking to dismiss the action based on the defendant’s argument that the Stark law does not apply to Medicaid claims. The court, in citing to the decisions referenced herein, found that although the defendant’s argument is generally correct that the Stark law applies to Medicare claims, the referral prohibition also applies to Medicaid claims through 42 U.S.C. § 1396b(s).

These decisions and recent government enforcement efforts are shedding light on the expanded application of the Stark law to Medicaid claims, once thought to only to apply to Medicare claims. Going forward, we may see additional cases with similar results as the government makes significant effort not to pay for any false or improper claims.

In the face of the government’s heightened sensitivity to the submission of false and improper claims, the health care community should proceed with caution when navigating the winding path of the Stark law’s applicability to Medicaid claims.

Tuesday, November 25, 2014

Young Attorney Volunteers Time To Help Elders

Robert Walton has a special place in his heart for elderly people. As a child, he grew up watching his 84-year-old grandfather caring for his grandmother, who was in a wheelchair. 

"I didn't realize then what an impact it would have on me," said Walton, who is now a Stetson Law School graduate focusing his practice on estate planning and elder law. "I approach all my cases from that perspective."

Walton spoke recently at the St. Joseph's John Knox Village in Tampa about important legal matters facing the elderly public. The presentation was a part of the Hillsborough County Bar Association's Lawyer Referral & Information Service's outreach program connecting community members with attorneys who can help them.

Walton says that with the baby boomers reaching their elder years and Florida continuing to be a prime location for retirement, it is important that the Tampa Bay area legal community take active steps to help the elderly.

"It is an absolute need in Tampa Bay, and a need that the Bar has to meet," Walton said. "We need to try to be a part of that law-making practice."

Walton is a very active member of the HCBA. He was selected for the HCBA Bar Leadership Institute Class of 2014-2015 and, as part of the HCBA Lawyer Referral & Information Service, he participates in the monthly Ask-A-Lawyer program on Fox 13 News.

"It's a huge opportunity for someone like me who is a solo practitioner," Walton said of his participation in the HCBA and LRIS programs. "I get to work with my peers and meet people from all over Tampa. It's given me an opportunity to learn and give back to the community. It's tremendous."

For information about joining the HCBA Lawyer Referral & Information Service, call 813-221-7780.

Friday, November 21, 2014

Elder Law: Off To A Great Start

By Elizabeth P. Allen and Debra L. Dandar

With the holiday season upon us, we would like to report on our recent and upcoming Elder Law Section meetings. We started off the year with a bang. Our first speaker was Kathleen Kowalik, DCF Medicaid specialist, accompanied by her teammate, fellow Medicaid specialist Elizabeth Thomas. Together, they presented a thorough overview of the Medicaid Institutional Care Program application process, including analysis of assets, income, transfers, technical requirements, and proper procedures to use in submitting an application through the ACCESS website. We had a terrific turnout, and many participants stayed late to ask additional questions of our speakers. Both specialists were very generous with their time, staying until all questions had been answered. We are most appreciative of their consideration in sharing their knowledge with us.

At the October meeting, Rebecca C. Bell, LLM, presented a Medicaid Managed Care Update. The information provided was important, timely, and highly relevant, and we thank her for sharing her knowledge with us. Our November luncheon speaker was Diane Daniels, Medicare specialist, who planned to address various issues concerning Medicare coverage. Since seniors are reviewing their options for Medicare coverage for the upcoming year, this timely topic will help us assist our clients in making informed choices and will enable us to help clients deal with coverage issues they may face.

Our speaker for December 12 is Laura Penley, district long-term care ombudsman, who will discuss laws, rules, and issues concerning nursing homes and residents’ rights. We look forward to the opportunity to increase our knowledge in this area so that we may act as better advocates for our clients.

Additional speakers in 2015 include Dale Krause (January 9), who will discuss Medicaid and VA compliant annuities, and Travis Finchum (February 5), who will discuss SSI rules and lesser-known Medicaid programs such as QMB, SLMB, QI1, and Medically Needy, as well as answer questions regarding special-needs trusts. Tae Kelley Bronner (April 23) will address homestead issues. Tae anticipates that new homestead legislation may be passed in 2015, and she plans to provide us with an update on that topic. We are also planning to add presentations on VA benefits and probate estate issues.

Each luncheon qualifies for one hour of CLE credit and provides for networking opportunities with your friends and colleagues. Networking begins at 11:30 a.m., with luncheons beginning at noon. All luncheons are held in the Chester H. Ferguson Law Center.

So please join us at our meetings, and if you have suggestions, ideas for speakers or topics, or an article submission for the Lawyer magazine, please contact Elizabeth P. Allen, or 813-877-9222, or Debra L. Dandar, or 813-282-3390. 

We look forward to seeing you and wish each of you a very happy holiday season.

Wednesday, November 19, 2014

Military & Veterans Affairs Committee: The Military Veterans Treatment Court

By Bob Nader and Lt. Col. Christopher Brown

“And silence sounds no worse than cheers … after earth has stopped the ears.”

One may be tenderly reminded of A.E. Housman’s immortal To An Athlete Dying Young when visiting the courtroom of the Thirteenth Judicial Circuit’s Veterans Treatment Court to observe military veterans of our community who dutifully served their country stand at the bar, approach the bench, and reveal their stories. Once superbly trained and courageous as any celebrated athlete, if not more so, these proud veterans of the Afghan and Gulf Wars and the Vietnam conflict of two generations ago have entered upon hard times. With spirit bent but not unbroken, they now step before presiding Judge Richard Weis and bravely commit to the conditions of the 12-month voluntary treatment program afforded to these soldiers of now lesser fortune with a renewed opportunity for redemption.

 During the four years of World War II, 11.2 percent of the nation's population was actively engaged in some form of military service. During the Vietnam era of over a decade, 4.3 percent of the nation's population served. However, since 2001, only 0.45 percent of our population has served in the Global War on Terror. Hence, our nation has now asked the relative few to sacrifice in defending our country.  And many of these men and women volunteers return home altered of body and spirit, suffering from military-service-related mental illness, traumatic brain injury, substance abuse disorder, or psychological issues, resulting in offenses, charges brought, and criminal arrests. How can a community give back to its veterans in need? One way our judicial system is giving back is through Veterans Treatment Courts.

The Veterans Treatment Court of Hillsborough County (VTC) was established through a collaborative effort involving Chief Judge Manuel Menendez Jr.; the judges of Hillsborough County; the Offices of the State Attorney and Public Defender; the Offices of the Court Administrator and Clerk of the Court; state and federal Departments of Veterans Affairs; numerous veterans service organizations; and other civilian and military community partners. Through the VTC, veterans enter a misdemeanor diversion program where they accept treatment from the Department of Veterans Affairs (VA) and other providers in lieu of criminal prosecution.

After signing a participant agreement that outlines the duties of the veteran charged and the consequences of failing to comply, the would-be criminal defendant, upon acceptance into the program, is assessed and by court order given an appropriate treatment plan that is implemented using existing VA assistance packages and protocols the veteran may not have known existed or may have had trouble accessing in the past. The ultimate goal is to rehabilitate the veteran through proper diagnosis and treatment, to preclude further involvement in the justice system, and to protect the public. Upon fulfillment of those responsibilities and completion of the extended program, the veteran graduates, receives a certificate of success, and has his or her record favorably resolved.

The VTC currently adjudicates certain specified misdemeanor offenses set out in an administrative order. In the near future, the VTC will incorporate provisions of the T. Patt Maney Veterans’ Treatment Intervention Act enacted by the Florida Legislature, resulting in a significant increase in the number of veterans entering the treatment programs the court is designed to administer. As Chief Judge Menendez commented, “With the support of our criminal justice partners and the VA, we (the Thirteenth Judicial Circuit) are in the process of expanding our VTC to handle felony cases. Judge Weis has done a yeoman’s job for the past two years initiating our misdemeanor cases, and we are now preparing to offer eligible veterans charged with certain felony offenses the opportunity to participate in the same treatment program without compromising the safety of the public.”

In addition to the treatment plan ordered, the VTC also operates by using existing court staff and additional outside resources to mentor the veterans before the court. The mentoring coordinator, Col. (Ret.) D.J. Reyes, and other veterans serve as volunteer mentors providing supportive roles in the process. Jarred Miller, who is the VA liaison to the VTC, determines available benefits and coordinates treatment and counseling services through applicable VA programs. 

As a part of its mission, the Mentoring Subcommittee of the HCBA’s Military & Veterans Affairs Committee (MVAC) is spearheading an effort to place additional volunteer mentors at the request of the VTC to act as a “battle buddy” or role model to the veterans in the program. It may be as simple as talking to your protégé about his or her progress in the program or upcoming milestones or securing feedback from the VA representatives and other support personnel with whom you may interface to determine the veteran’s status of achievement. You would then accompany the veteran at the semi-monthly court appearance intervals to provide input and the affirmative directions being taken by the veteran during the course of the program.

You are invited to get involved with this meaningful HCBA committee and become a mentor. As Judge Menendez envisions for the future, “We look forward to working with MVAC in this effort to enhance our Veterans Treatment Court, which has proven very successful in other communities.”

Monday, November 17, 2014

Diversity Committee: Staying In The Game: Women, Leadership, And The Law

By Katherine Earle Yanes

The statistics of women in the law compared with female lawyers in leadership roles are staggering. Nearly one-third of lawyers are women, and women account for approximately 45 percent of law firm associates ― roughly proportionate to the percentage of female law school graduates. Yet, despite the numbers, women are not obtaining leadership positions consistent with their representation in the profession: 

Women make up approximately 19.9 percent of law firm partners.

About 16 percent of equity partners at large law firms are women, a number that has remained unchanged for about 10 years.

At the 200 largest law firms in the United States, 4 percent of managing partners are women.

As of 2011, the median salary of female lawyers was 86.6 percent of the median salary of male lawyers.

Out of the Fortune 500, 21.6 percent of general counsel are women.

In the federal judiciary, 24.1 percent of judges are women; in the state judiciary, 27.5 percent of judges are women.

The statistics on female representation at Tampa Bay area law firms are consistent with these figures. A recent Tampa Bay Business Journal article reported that, overall, Tampa Bay area law firms “lag behind national statistics in diversity.”  

The Factors

Many factors may contribute to this leadership gap. Law firms that participated in the 8th Annual NAWL Survey on Retention and Promotion of Women in Law Firms identified the following barriers to women achieving equity partnership:

lack of business development (44 percent)

attrition, i.e., women leaving a firm or a slowdown in work among women who remain at a firm (31 percent)

fewer sponsors and mentors (11 percent)

work-life balance (10 percent)

Additionally, women are more than twice as likely as men to leave law firms. Of those who leave law firms, nearly one-third of female associates and another one-third of female, non-equity partners also leave firm practice entirely, as compared with 20 percent of men at each of those levels.   

Addressing the Disparity

Beginning in January 2015, the Tampa Bay Chapter of the Federal Bar Association, in conjunction with other area Bar associations and organizations, including Stetson University College of Law, the Hillsborough Association of Women Lawyers, the Pinellas County Chapter of the Florida Association of Women Lawyers, the George Edgecomb Bar Association, and the Florida Association of Women Lawyers, will host a program titled “Staying in the Game: Women, Leadership, and the Law." The purpose of the program will be to foster dialogue in an effort to address this disparity by identifying steps that law firms, organizations, law schools, and lawyers can take to encourage female lawyers not to take themselves out of the game but instead to continue on the path toward leadership positions. 

The program will begin in January 2015 with a one-afternoon CLE and roundtable discussion. Following that program, participants will be divided into smaller discussion groups that will meet quarterly throughout 2015 to discuss what law firms, law schools, organizations, and lawyers can do to retain talent and build female leaders. At the end of the one-year project, the recommendations of each discussion group will be synthesized in a report that will be made available to area law firms, organizations, law schools, and lawyers.  

If you are interested in participating in this program, please email Erin Jackson at or Katherine Earle Yanes at 

Wednesday, November 12, 2014

Construction Law: Yes “SIR,” I Paid That …

By Jeffrey M. Paskert and Ryan E. Baya

The recent Florida Supreme Court opinion Intervest Construction of Jax, Inc. v. General Fidelity Insurance Co., 133 So. 3d 494 (Fla. 2014) illustrates the effect contract interpretation principles can have on the evaluation and scope of insurance policies and coverage. Intervest concerned the application of a Self-Insured Retention Endorsement (“SIR”), and whether a general contractor or its insurer was obligated to fund a settlement for a bodily injury claim.

During construction of a home, the general contractor hired a subcontractor to install attic stairs. After construction was complete, the homeowner fell from the stairs, suffered injuries, and ultimately sued the general contractor. The general contractor sought indemnification from the non-party subcontractor under the terms of their subcontract agreement. At the time of the accident, the general contractor held a CGL insurance policy containing a $1 million SIR. The SIR amended the policy to provide coverage only after the general contractor paid $1 million toward a covered loss. The subcontractor also maintained a CGL policy, but the general contractor was not an additional insured on that policy.

The parties ultimately settled the homeowner’s claim for $1.6 million. The subcontractor’s insurer paid $1 million to the general contractor to help settle the indemnification claim, which the general contractor, in turn, paid to the homeowner. However, the general contractor and its insurer disagreed about who between them was responsible for the remaining $600,000. Eventually, each paid $300,000 and reserved their rights to seek reimbursement from the other.

In a subsequent federal court action, the general contractor and insurer pursued declaratory judgment claims, each seeking a ruling that the other was obligated to fund the $600,000 settlement payment. The general contractor argued that it had satisfied its SIR by paying the homeowner the $1 million indemnification payment it had received from its subcontractor. The insurer argued that the subcontractor’s $1 million payment did not satisfy the SIR because the money originated from the subcontractor, and the SIR policy language required the general contractor to pay the SIR out of its own funds. The federal district court granted summary judgment in the insurer’s favor, and the general contractor appealed. On appeal, the Eleventh Circuit found no controlling precedent under Florida law and certified determinative questions to the Florida Supreme Court.

The Florida Supreme Court sided with the general contractor and against the insurer. Citing contract interpretation principles that construe ambiguous insurance policies against insurers, the Supreme Court found that the policy language allowed the general contractor to use the subcontractor’s indemnification payment to satisfy the general contractor’s SIR. As a related aside, the court also held that the policy’s transfer of rights clause did not address the priority of reimbursement, and thus, the policy language did not abrogate Florida’s “made whole doctrine,” which entitled the general contractor to be made whole first before its insurer.

Though Intervest leaves many questions unanswered, it underscores the importance that basic contract interpretation principles have on insurance coverage disputes.

Immigration Law: Channeling Our Inner Atticus Finch

By Maria del Carmen Ramos

I still remember the moment I knew I wanted to be a lawyer. Three years after my family moved here from Puerto Rico in search of a better opportunity, I read Atticus Finch’s closing argument in To Kill a Mockingbird for the first time:

We know that all men are not created equal in the sense that some people would have us believe. ... But there is one way in this country in which all men are created equal. An institution that makes a pauper the equal of a Rockefeller, the ignorant man the equal of any president, and the stupid man the equal of Einstein. That institution is the court.

After hearing Atticus Finch eloquently and powerfully explain it was our judicial system that gave meaning to Thomas Jefferson’s immortal words “all men are created equal,” I knew I was destined for law school.

For some of us, however, the idealism that led us to law school faded somewhere between graduation and the time the reality of practicing law set in. With the practice of law came billable hours, the difficulty of meeting clients’ demands, developing a book of business, and hopes of partnership. Add in the stress of juggling professional obligations with family needs, and I’ll confess that Atticus Finch’s stirring words were a distant thought that hadn’t crossed my mind in years. It became easier to forget what first convinced me to become a lawyer.

Yet, as I read more and more about the crisis at our southern border, the stories stir in me that idealism from my youth. In a way, the unaccompanied minors remind me of Tom Robinson in To Kill a Mockingbird. They are vilified by some — hopefully a small minority — because they look different. Worse, they are defenseless and voiceless. Unlike most criminal defendants, they don’t have a right to an attorney. Although many of the unaccompanied minors may be eligible for asylum or visas for victims of trafficking or other criminal activity, few may get that relief without competent counsel, which means they will be returned to countries where they are not safe.

That is why, in keeping with Chief Judge Manuel Menendez’s administrative order on pro bono service, our section members (individually or collectively) should work to ensure that the unaccompanied minors living in the Tampa Bay area (29 at last count) have adequate legal representation. During our section’s kickoff luncheon, Adriana Dinis and Sophia Lynn highlighted the overwhelming need in our community for members of our immigration bar to volunteer their time and talents to help the unaccompanied minors.

I sincerely hope you join me in that worthy cause. Only you can ensure “all men are created equal.” Only you can make an unaccompanied minor the equal of a Bill Gates. To paraphrase Atticus Finch: Our immigration system is only as sound as its immigration bar, and the immigration bar is only as sound as the lawyers who make it up.

Monday, November 10, 2014

Criminal Law: Call for Nominations: 2014-2015 Bubba Huerta Award

By Matt Luka

In March 2009, local defense counsel Marcelino “Bubba” Huerta III passed away at the too-young age of 56. For his professionalism, good heart, and friendly personality, Bubba was universally respected throughout the Tampa Bay area by defense counsel, prosecutors, and judges alike. His quiet commitment to pro bono service was not known to many but was appreciated and admired by those who knew him best. With his passing, the Hillsborough County Bar Association lost a friend, and the criminal justice system lost a great lawyer and public servant.

In Bubba’s memory, the Criminal Law Section of the HCBA created the Marcelino “Bubba” Huerta III Award for Professionalism and Pro Bono Service. This award is presented to an attorney who exhibits the professional practice, the dedication to pro bono service, and the diligent work in the pursuit of equal justice that made Bubba a remarkable lawyer. The recipient of the Bubba Huerta Award is selected by a committee consisting of local, state, and federal criminal practitioners. In 2009, the first Bubba Huerta Award was presented to James Felman of Kynes, Markman & Felman. Last year's recipient was David Weisbrod.

The process has begun to select the recipient of the 2014-2015 Bubba Huerta Award.  The award will be presented at our section’s February 4, 2015, luncheon meeting. Please nominate an attorney who exemplifies the professionalism and pro bono spirit that made Bubba Huerta exceptional. Your nomination can be submitted by emailing me at or Mark Rankin at

Sunday, November 9, 2014

Collaborative Law: Using Collaborative Law Process For Business Disputes

By Guilene F. Theodore and Kerry Raleigh Tipton

Collaborative practice is a voluntary dispute resolution process in which parties resolve their dispute without resorting to litigation. Throughout the collaborative law process, the parties agree to exchange information, possibly bring in trained third parties (expert witnesses, mediators, etc.) to help evaluate the value of the case, and ultimately work toward resolving the dispute through a process of “interest-based” negotiation, seeking creative solutions that work for the parties.

The parties and their lawyers sign a Participation Agreement, which generally includes the following provisions:

1. They agree in advance that if the matter is not resolved, the attorneys involved in the process will not handle the litigation.

2. The process is transparent. Everyone agrees to informally exchange all relevant information.

3. Everything is confidential from the inception of the collaborative process.

The collaborative process has become widely used to resolve family law disputes, particularly those related to child custody. Attorneys in several states are beginning to recognize its value as a tool for resolving other disputes as well. For example, the collaborative approach extends well to employment disputes in close-knit or family-owned businesses.

A collaborative approach to resolving employment disputes makes sense for these businesses because the cost of taking those disputes to court is measured not just in terms of the company’s bottom line but in the devastating effect on the family or other close relationships that are valuable and worth preserving. In addition, the parties in a family business setting tend to have a common economic interest in resolving their dispute. The collaborative approach provides a structure for cooperation and helps avoid damage to the business and the likelihood of family members holding lifetime grudges.

This approach also reduces the stress associated with resolution of conflict and lessens the disruption to business operations normally associated with discovery requests and key people being called away to depositions, hearings, and trial. Parties to such a shared solution are more likely to feel that their voices were heard and to abide by the terms of any agreement.

The process works well for disputes related to decisions about the timing of retirement of senior employees and any related succession plan; separation of employment needing confidentiality and non-competition agreements, and related enforcement; interactions between management and employees who are members of the family and nonrelated employees, including perceived biases; and restructuring of the business with layoffs.

However, not all disputes lend themselves to the collaborative process, and not all clients are receptive to it. Cases should be carefully screened to determine whether the process is appropriate. Attorneys on both sides of the dispute should obtain proper training in the collaborative process, explain all aspects of it to their clients, and obtain the informed consent of the clients for resolving their dispute in this fashion. More attorneys throughout the country and the world are considering the collaborative law process for their clients. Additional information is available at the HCBA Collaborative Section webpage.

Friday, November 7, 2014

Appellate Practice: Stopping The Clock - Getting An Extension For Your Brief

By Jared M. Krukar

Traditionally, parties seek briefing extensions in Florida state courts by motion pursuant to Florida Rule of Appellate Procedure 9.300. However, four of the five District Courts of Appeal have recently adopted an alternative procedure — extension by “notice” — that supplants the motion process in certain circumstances.

The “Notice” Process, by Court

Led by the Fourth District, the Second, Third, Fourth, and Fifth Districts each authorize a party who meets specific requirements to file a notice of an agreed or stipulated extension of time to file an initial, answer, or reply brief, in lieu of a motion. The process reduces the workload of the court in reviewing and ruling on motions, while allowing the parties to exercise increased control over their own appeals.

The courts’ administrative orders authorizing the procedure are found on their websites. They each differ slightly in their requirements and approved language. It is important to review each administrative order carefully to ensure compliance with approved procedures.

The Fourth District. In Administrative Order No. 2011-2, the court ordered it would accept “a notice” in lieu of an agreed motion for extension of time on briefs. This procedure applies only in “criminal and civil appeals,” not “adoptions, dependency, termination of parental rights, non-final orders, or any expedited appeal.” Agreed extensions by notice are authorized for up to 120 days for an initial or answer brief and up to 60 days for a reply brief, without any intervention from the court.

The Fifth District. In Amended Administrative Order AO5D13-02, the court largely adopted the Fourth District’s “notice” process but added to the excluded proceedings any “original proceeding.” The court also reduced the time available under the “notice” process to 90 days for initial or answer briefs and 60 days for reply briefs.

The Third District. In Administrative Order AO3D13-01, the court adopted the “notice” process, applying the list of excluded proceedings from the Fifth District but the 120-day and 60-day time limitations from the Fourth District.

The Second District. In Administrative Order 2013-1, the court adopted the “notice” process, adding “any domestic relations appeal with a custody or visitation matter at issue” to the list of excluded proceedings from the Fourth and Fifth Districts. However, it adopted the Fifth District’s 90-day and 60-day time limitations.

Other Appellate Courts. Neither the Florida Supreme Court nor the First District Court of Appeal has adopted any alternative procedure to a Rule 9.300(a) motion.

A motion is still required in many circumstances. 

Where the parties cannot agree, the time requested exceeds the authorized amount, or a notice is not authorized for other reasons, Rule 9.300(a) controls and a motion is required. In addition, some district courts govern appellate motion practice via administrative orders or “notice[s] to attorneys and parties” located on their respective websites. Again, review of these documents is always advised to ensure compliance with local court procedures.

Thursday, November 6, 2014

Community Services Committee: Recognizing Those Veterans Who Do Not Have Much, Yet Have Given So Much

By Lara M. LaVoie

Make a Difference Day, held the fourth Saturday in October, is a national day of giving back and helping others. For the second year in a row, I have had the privilege of co-chairing the Hillsborough County Bar Association’s Community Services Committee (CSC) and participating in the James A. Haley Veterans’ Hospital’s Make a Difference Day, which has a theme of “Homeward Bound for Those Who Served.” There were 52 veterans who were in need of “adoption” this year, a number that had unfortunately increased from last year. As we were able to do last year, with the help of many generous volunteers, we succeeded again this year in getting all 52 veterans on the list adopted!

For those of you who are unaware of this amazing project, these veteran heroes sadly have no family and no living friends. They live in small group homes because they can no longer take care of themselves. These veterans have chosen to live in foster homes rather than nursing homes, but they have very limited funds after paying for their stay in the foster home. Event organizers collected a wish list for each of the veterans. With the help of generous volunteers sharing their time and resources, gifts were assembled for personal delivery to each of the foster home veterans. The items on their “wish lists” included things that we take for granted ― blankets, underwear, sweatshirts, shaving cream, CDs, hats, and flashlights ― even the comfort of a stuffed animal.

Participating in this event these past two years has been such a heartwarming and rewarding experience. Once again, those who volunteered this year had the opportunity to sit down and listen to the amazing stories of these wonderful men and women who selflessly served our country. The veterans were so very grateful for the chance to spend an hour or so talking about their past and their service. For all that they have done, the least we could do was spend several hours with them and show them gratitude to brighten their day. I think I can speak for all of the volunteers when I say that we all felt so humbled and touched deeply by the experience.

We have some other incredible events planned for this year where you can possibly touch someone’s life in a very meaningful way with only several hours of your time. Please consider helping and/or giving to one of our causes. By joining the CSC, you can help really make a difference (in your life and the lives of others). Come to a meeting, volunteer for an event, or just spread the word about what we are doing! There is no commitment or donation that is too little or too late.

Please feel free to contact the HCBA; Lara LaVoie,; or Lisa Esposito,, for more information.

Wednesday, November 5, 2014

HCBA President's Message: A Salute To Our Local Judiciary

By Benjamin H. Hill IV

By now, you should be familiar with Operation Respect and Service, our theme this year to advance our Bar's mission. In carrying it out, we have lifted up our local military and veterans and the issues they continue to face.

I cannot thank enough our revamped Military & Veterans Affairs Committee (MVAC), which mobilized quickly and is now actively leading our Bar's efforts to support the needs of those who have served, and continue to serve, our county. Having participated in the MVAC's organization and initial meetings, I observed firsthand the substantial involvement and commitment of members of our local judiciary (“shout outs” to Judges Greg Holder, Samantha Ward, and Richard Weis, as well as Judge-Elect Mike Scionti).

In fact, our entire judiciary's involvement in and support of various HCBA events has been such a common observation of mine during the first half of this Bar year that I think it is appropriate ― particularly as we progress with Operation Respect and Service and approach Thanksgiving ― to pause and express our gratitude toward our robed peers.

Although our state and federal judges deserve thanks for their daily roles in public service, I want to recognize them here for what they do "off the bench" and especially for their support of the HCBA. Their service in this extra capacity helps immensely and, frankly, distinguishes our local Bar from those in other locales. Further, our judges' involvement is another prime example of how our Bar carries out its mission of “promoting respect for the law and the justice system through service to the legal profession and to the community.” Beyond that though, judicial participation in our local Bar improves professionalism, civility, collegiality, and camaraderie among all HCBA members. For all of these reasons, the support and involvement of our judiciary strengthens our local Bar, makes practicing in our area more civil, and helps to provide better experiences to parties relying on our courts for justice.

As we show appreciation for our judiciary, I would especially encourage you to join in our Bar’s ongoing acknowledgements of four of our longtime judges who are retiring: Judge James Arnold; Judge James Barton; Chief Judge Manuel Menendez Jr.; and Judge Sam Pendino. If my math is right, these judges will have served our community from the bench for a combined total of 103 years!

As a reminder, on the evening of December 4, the HCBA and the Hillsborough County Bar Foundation will be hosting a special event at TPepin’s Hospitality Centre to honor Chief Judge Menendez, including his contributions to our Bar, and to wish him well in his retirement. This is a free event for HCBA members and friends of the Bar. I assure you that it will be a most memorable evening.

Finally, on December 11, the HCBA Trial & Litigation Section will honor the above-referenced foursome of retiring judges at its Quarterly Luncheon. This lunch will allow these judges to take some “parting shots” from the bench, so it should be an entertaining and enjoyable occasion.

News From Around The Association

Erin Smith Aebel, a partner at Shumaker, Loop & Kendrick, LLP, and co-chair of the Tampa Health Law Department, has been named the Tampa Bay Business Journal’s 2014 Businesswoman of the Year in the Legal Services category. Aebel is a health care practice co-administrator at the firm.

Jordan D. August has joined Carlton Fields Jorden Burt as an associate in the firm’s business transactions practice group. August practices taxation and estates and trusts at the firm, representing both individuals and entities in the areas of federal and state tax law, tax controversies, estate planning, and probate administration.

Steven M. Berman, a partner at Shumaker, Loop & Kendrick, LLP, was a featured panelist at the 22nd Annual Southwest Bankruptcy Conference on Ethics: Professionalism. Berman practices as a business bankruptcy litigator at the firm.

Edward J. Carbone, a managing partner at Roig Lawyers, has been elected to a two-year term on the Florida Defense Lawyers Association Board of Directors. Carbone focuses his practice on health care law, appellate litigation, business litigation, and medical malpractice.

Debra Deardourff Faulk was recently promoted to shareholder at GrayRobinson, P.A., in Tampa. Faulk’s practice areas include intellectual property, litigation, regulated products, technology licensing, and trademark.

Rachel Feinman, a shareholder at Hill Ward Henderson, was elected as president of the Gasparilla International Film Festival. Feinman’s practice focuses on mergers and acquisitions along with corporate lending transactions.

T.J. Ferrante, an associate at Carlton Fields Jorden Burt, has been selected to serve as a board member of Junior Achievement of Tampa Bay’s JA Connections. Junior Achievement is a nonprofit organization providing a series of business, economics, and life-skills programs to enhance the education of young people. Ferrante is a member of the firm’s national health care practice group.

Michael L. Forte, a partner at Rumberger, Kirk & Caldwell, P.A., was awarded the 2014 TAQ Award from the Florida Defense Lawyers Association for outstanding service on the editorial board of the Trial Advocate Quarterly. Forte is a litigator who practices in the areas of retail and hospitality, government, and products liability.

Kevin J. Healey has joined Smolker, Bartlett, Schlosser, Loeb & Hinds, P.A., as an associate for the firm. Healey concentrates his practice on state and federal commercial litigation as well as insurance disputes.

Dominique E. Heller, an associate at Wiand Guerra King, has received an “AV Preeminent” rating from Martindale-Hubbell, one of the country’s leading peer-rating services for lawyers. The AV Preeminent is the highest possible rating for professional excellence and ethics that can be awarded. Heller’s practice includes general commercial litigation, regulatory matters, and appeals with a focus on securities and financial services litigation.

Hilary High of Hilary High P.A. in Tampa was one of three mediators in Florida admitted to the Florida Circuit-Civil Mediator Society, an association whose membership consists of Supreme Court-certified circuit-civil mediators who have proven experience in the resolution of civil and commercial disputes.

Michele Leo Hintson, partner in the Tampa office of Shumaker, Loop & Kendrick, LLP, has been named chair of the Community Advisory Board of the Leadership Council of the Junior League of Tampa Bay. She has also been certified by the Florida Supreme Court as a circuit court mediator, allowing her to mediate civil disputes in the circuit courts throughout Florida. Hintson dedicates her practice to representing businesses, insurance companies, health care organizations, and individuals in all aspects of the dispute resolution process.

Gregg E. Hutt, shareholder at Trenam Kemker, has been certified by The Florida Bar in construction law. Certification is the highest level of recognition by The Florida Bar. Hutt is a member of the construction and commercial litigation practice groups at Trenam Kemker and has been a shareholder since 2012.

Stephen A. Liverpool, an associate at Hill Ward Henderson’s land use and real estate groups, was recently appointed chair of the Young Professionals Group for the Real Estate Investment Council. Liverpool’s practice primarily involves representing clients in all phases of commercial real estate development, including leasing, investment, financing, and purchase and sale transactions.

Erin M. McKenney, an associate for Shumaker, Loop & Kendrick, LLP, has been elected to the Board of Trustees for Keep Tampa Bay Beautiful, an organization that provides environmental education and volunteer opportunities to the community. McKenney has also been accepted into the Provisional Junior League of Tampa Class for 2014-2015. The Junior League of Tampa is an organization of more than 1,800 women committed to improving communities. McKenney has been with the Shumaker since April, and her practice focuses on health law.

Jeff Paskert, of Mills Paskert Divers in Tampa, has been selected to serve as co-chair on the Insurance and Surety Claims Subcommittee of the American Bar Association’s Construction Litigation Section. Paskert also recently addressed a construction industry conference in Orlando on the topic of proper selection and use of expert witnesses.

Woodrow H. "Woody" Pollack, a Tampa-based shareholder at GrayRobinson, P.A., has been named vice-chair of The Florida Bar Business Law Section Intellectual Property Committee. The Business Law Section of The Florida Bar serves lawyers, law students, and the faculty of its law schools. Pollack is a registered patent attorney who litigates patent, trademark, copyright, and other intellectual property disputes in federal and Florida state courts.

Luis Prats, a shareholder for Carlton Fields Jorden Burt, has been appointed chair of Stetson University’s Board of Trustees. His duties as chair will include serving as spokesperson for the board, acting as chair of the Executive Committee, and appointing committee chairs and vice chairs (as necessary). Prats is a board-certified construction lawyer and has been with the firm for more than 30 years.

Jared J. Perez was named member at Wiand Guerra King. Perez is currently part of the team that represents a court-appointed receiver nominated by the Securities and Exchange Commission. Perez joined Wiand Guerra King in March 2011 and concentrates his practice on complex commercial litigation.

Maria del Carmen Ramos, a Tampa-based attorney for Shumaker, Loop & Kendrick, LLP, has been selected to Volume III of the Latino American Who’s Who, a biographical publication that distinguishes leading Latino professionals who have attained a recognizable degree of success in their field of endeavor. Ramos joined Shumaker, Loop & Kendrick, LLP, in 2004 and is a partner practicing immigration and nationality law.

Jacqueline R. A. Root, an associate at Roig Lawyers, was selected as a “Model of Success” by the Dunedin Fine Art Center (DFAC). As part of DFAC’s annual Wearable Art show, prominent young professionals in the community were chosen to model the designs and to be “Models of Success.” The event raised awareness and support DFAC, which provides arts education for the Greater Tampa Bay area.

Jeffrey T. Shear, a shareholder at Gunster law firm, has been elected to the board of directors of the Real Estate Investment Council of Tampa Bay. Shear is a real estate attorney with experience in health care law whose practice involves the representation of developers and institutional investors in commercial and residential development.

Robert Shimberg, a shareholder at Hill Ward Henderson, was elected chair of Metropolitan Ministries. Metropolitan Ministries cares for the homeless and those at risk of becoming homeless in the Tampa Bay area. Shimberg focuses his practice on commercial litigation, corporate compliance, and governmental relations.

John V. Trujillo Jr. has joined Smoak, Chistolini & Barnett, PLLC, as a partner. Trujillo focuses his practice on the litigation of commercial debt collection, judgment enforcement, judgment collection, contract disputes, and asset/business purchase fraud matters. 

Miriam Velez of Valkenburg & Velez, P.A., was elected president of the Tampa Hispanic Bar Association for the 2015 calendar year.  Miriam, along with the board of directors, will be sworn in by Chief Justice Jorge Labarga at the 8th Annual Scholarship Gala Dinner.

Peter W. Zinober, shareholder at Greenberg Traurig LLC, has been reappointed for an additional one-year term as Employer Co-Chair of the ABA's Section of Labor and Employment’s Human Trafficking Task Force. Zinober focuses his practice on jury and non-jury litigation in state and federal courts of employment discrimination and civil rights.

The Law Office of Gary S. Dolgin
has moved to the Bank of Tampa building at 601 Bayshore Blvd., Suite 150, Tampa FL 33606. The offices can be reached via telephone at 813-223-3200 or email at

Shumaker, Loop & Kendrick, LLP’s Leadership Shumaker program donated $1,700 to the Humane Society of Tampa Bay. Leadership Shumaker also donated food and other items to benefit animals in need.

Smoak & Chistolini, LLC, has combined with Tampa law firm Barnett & Associates, P.A. The consolidation evidences Smoak & Chistolini’s continued growth and complements the firm’s growing presence throughout Florida. The firm will be known as Smoak, Chistolini & Barnett, PLLC.

Tuesday, November 4, 2014

YLD President's Message: New Admittees To The Bar - Things To Think About

By Anthony "Nino" Martino

Participating in the swearing-in ceremony of the new admittees to the Bar got me thinking about those early days of trying to find your way through the profession. The immediate path is easy because learning the law is relatively straightforward, and simple hard work should enable you to be an adequate lawyer. However, as time goes on, you realize that professional development is critical if you aspire to be an outstanding lawyer. It is much harder to cultivate the other qualities and skills necessary to excel in this profession. 

A young lawyer cannot build a reputation for excellence by being passive. Every experience shifts, shapes, and sculpts the type of lawyer you will become. In the classic case of doing well by doing good, your career will also benefit as your reputation grows and your activities generate new opportunities.

The YLD has created programs to help young lawyers jumpstart their professional development through a wide array of opportunities to not only network with other lawyers and judges but to find mentors, to grow professionally, and to help the less fortunate in our community. These experiences will generate measurable benefits to your career development. For more information on the opportunities available, go to the YLD link found at or visit our Facebook page.

Recent YLD Events:
  • September 26 was the YLD’s first happy hour of the year, and it was sponsored by C1 Bank. To attend the next one, please contact the Events Committee Chairs: Cameron Frye at, Alyson Bulnes at, or Brett Metcalf at
  • On October 17, the YLD held our annual Golf Tournament at Temple Terrace Golf & Country Club. Although a complete recap of the event and photos will be included in the next issue of the Lawyer magazine, we wanted to give special thanks to our generous Platinum Sponsor, C-1 Bank, and Gold Sponsor, The Bank of Tampa, as well as our host, Temple Terrace Golf & Country Club, for assisting us in putting on such a tremendous event! 
YLD members not only attend but also help plan these projects and events, so if you would like to assist, please join one of our committees. Our events can always use more volunteers and new faces as we continue to enhance our programming.