Wednesday, April 29, 2015

Pro Bono Committee: The Thirteenth Judicial Circuit 2015 Pro Bono Service Award Winners

By Rachel May Zysk

United States Supreme Court Justice Ruth Bader Ginsburg said, “Lawyers have a license to practice law, a monopoly on certain services. But for that privilege and status, lawyers have an obligation to provide legal services to those without the wherewithal to pay, to respond to needs outside themselves, to help repair tears in their communities.” On April 23, 2015, at the Eighth Annual Thirteenth Judicial Circuit Pro Bono Service Awards Ceremony, the following were honored for responding to needs outside themselves in order to serve our community: attorneys Frederique B. “Dika” Boire, Isabel “Cissy” Boza Sevelin, and Sarah Lahlou-Amine; paralegal Robin Todd; the law firm of Open Palm Law; and the nonprofit legal organization the Tampa Bay Bankruptcy Bar Association. The award nominations were submitted to the Thirteenth Judicial Circuit Pro Bono Committee, chaired by Rosemary Armstrong. The ceremony was hosted by the committee, the Bay Area Legal Services Volunteer Lawyers Program, and the Hillsborough County Bar Association.

Hillsborough County Bar Association’s Jimmy Kynes Pro Bono Service Award

Fredrique B. “Dika” Boire has been practicing law in Hillsborough County for 30 years, until recently in private practice as a board-certified marital and family law attorney and as a certified family law mediator. Throughout her long career, Boire has represented indigent clients, mentored other volunteer attorneys, created pro bono programs, and served in leadership positions to further the public good. 

Boire is a former chair of the HCBA Marital & Family Law Section. During her term, the section developed the General Masters program that is now referred to as the General Magistrate program. For 10 years, she chaired the Bench/Bar Program that resolved problems between lawyers and judges. She was instrumental in setting up an interdisciplinary committee to represent people involved in custody cases when a judge needed an attorney or mental health professional to help the court in deciding custody. The services were performed pro bono or at a reduced rate, depending on the party’s finances. She has provided hundreds of pro bono hours representing poor and working poor clients in family law and juvenile matters. She also assisted in launching the Guardian Ad Litem Program in the Family Law Division and served as a Guardian Ad Litem herself. Moreover, a significant amount of her mediation cases were performed pro bono.
Boire has unfailingly used her legal skills and indefatigable passion to benefit the Tampa Bay community and is a deserving recipient of the 2015 Jimmy Kynes Pro Bono Service Award.

Outstanding Pro Bono Service by a Lawyer

Isabel “Cissy” Boza Sevelin is a sole practitioner whose entire practice consists of providing pro bono service to clients. Prior to opening her pro bono practice, Sevelin was a federal judicial law clerk for nine years with the United States Bankruptcy Court for the Middle District of Florida. 

Sevelin has donated her time in the areas of family law, domestic violence, and dependency, and by drafting advance directives. She volunteers for the Bay Area Legal Services’ Volunteer Lawyers Program, working at the Domestic Violence Assistance Project clinic and on the Case Referral Panel. She is also extensively involved with the nonprofit organization Are You Safe Inc., whose mission is to provide legal and social services to victims of domestic violence, and the nonprofit organization Crossroads for Florida Kids Inc., representing children in dependency proceedings, including those charged with delinquencies. Further, Sevelin serves as a volunteer teen court judge through the Juvenile Diversion Program and as a Guardian Ad Litem in dependency court.

In 2014, Sevelin donated 863 hours of pro bono service to indigent members of our community. 

Outstanding Pro Bono Service by a Young Lawyer

Sarah Lahlou-Amine is an attorney at the law firm of Buchanan Ingersoll & Rooney, practicing in the areas of state and federal appellate litigation, commercial litigation, and insurance coverage litigation. 

Lahlou-Amine has contributed more than 600 hours of legal pro bono service in less than nine years of practice and has spent hundreds more hours in the administration of a variety of pro bono programs, including through her roles as chair of the Florida Bar Appellate Practice Section’s Pro Bono Committee, co-chair of the 13th Judicial Circuit Pro Bono Committee’s Law Firm Subcommittee, co-founder of the Tampa Bay Pro Bono Partnership, former chair of the Hillsborough County Bar Association Appellate Practice Law Section’s Pro Bono Committee, former chair of Fowler White Boggs’ Pro Bono Committee, and informal mentor to countless attorneys around the state who have come to rely on Lahlou-Amine to connect them with pro bono projects that fit their personal interests.

A self-dubbed “pro bono matchmaker,” Lahlou-Amine truly enjoys recruiting other attorneys to tap into the profound value of helping others the way she has done since her days as a young law student at Stetson University College of Law, where she contributed to a variety of pro bono projects and earned the William F. Blews Pro Bono Service Award. 

Outstanding Pro Bono Service by a Paralegal

Robin Todd is an immigration paralegal at the law firm of Shumaker, Loop & Kendrick and the project administrator for the Tampa H.E.L.P. (Homeless Experience Legal Protection) clinic. Founded in New Orleans in 2004, Project H.E.L.P. was launched in Tampa in July 2014 to service the legal needs of the growing number of homeless men and women. Since its inception, Todd has been the backbone of the clinic, which has helped more than 100 clients in less than a year. 

Todd has been instrumental in ensuring that the clinic is fully staffed with volunteer lawyers and staff. She attends nearly every weekly clinic, monitoring intake, client process flow, and time allocation. After each 90-minute clinic, she diligently completes follow-up paperwork and confirms that client files are properly updated and maintained. She donated 75 hours of pro bono time to Project H.E.L.P. in its first six months.

When asked why she contributes pro bono services, Todd told the following story of a homeless woman who attended Project H.E.L.P.’s very first clinic:

"One of our first clients that day, on leaving, told us how grateful she was to those of us that were there to help her. She continued, telling us that it was obvious that we were important, and how moved she was that we made time for someone like her. She began to cry, saying that no one ever saw her because she was homeless, and now she was finally seen by someone, someone who was important.  What an eye-opening moment for all of us that were there."

Outstanding Pro Bono Service by a Law Firm

Open Palm Law was founded in 1994 by attorney Joryn Jenkins. The law firm’s mission is to provide affordable, ethical, creative, and caring legal services. In June 2012, Jenkins founded the Pro Bono Project for the Collaborative Divorce Institute of Tampa Bay (later renamed the Next Generation Divorce Pro Bono Project), offering free collaborative divorce services to qualified clients who otherwise might not have been aware of the less stressful alternative to traditional divorce proceedings. 
In 2014, the firm’s attorneys and staff contributed nearly 300 hours of pro bono legal services to indigent individuals. Open Palm Law’s attorneys and staff also work with Bay Area Legal Services and other organizations that offer pro bono divorce services to train and mentor their staff and volunteers on the collaborative divorce practice. 

Outstanding Pro Bono Service by an Organization

The Tampa Bay Bankruptcy Bar Association formally launched its Pro Se Assistance Clinic in August 2013 with the mission of assisting the thousands of pro se debtors and creditors who are required to navigate the bankruptcy process within the United States Bankruptcy Court for the Middle District of Florida. This has been critical in the Middle District, which has been the second- or third-busiest bankruptcy court in the country in recent years.

The clinic is staffed by experienced members of the Tampa Bay Bankruptcy Bar Association who generously volunteer their time and offer free, on-site, one-on-one information and guidance to each pro se debtor or creditor seeking a consultation. It is open three days per week for a total of seven hours. The TBBBA and its volunteers provide all necessary funding, coordination, and administrative oversight to operate the clinic. In the past 12 months, TBBBA members have volunteered more than 375 hours to the Pro Se Assistance Clinic and have seen more than 300 pro se creditors and debtors. 

The Thirteenth Judicial Circuit Pro Bono Committee commends the service of the 2015 award recipients.

2015 Lapel Pin Recipients
100 or more Pro Bono Hours
Keith T. Appleby
Rosemary E. Armstrong
Lisa Beggs
Adam Bild
E. Kelly Bittick Jr.
Jake C. Blanchard
Fredrique B. Boire
Christopher Branton
Stuart Bromfield
Karen M. Buesing
Joseph Anthony Caimano Jr.
Tiernan Cole
Melissa Cordon
William B. deMeza Jr.
Lawrence J. Dougherty
Jillian Estes
Thaddeus Freeman
Elizabeth Lynn Hapner
Jourdan R. Haynes
Harley Herman
Michael J. Hooi
Scott L. Horvat
George B. Howell
Joryn Jenkins
David T. Knight
Sarah Lahlou-Amine
Joseph H. Lang Jr.
David J. Lisko
Thomas M. Little
James A. Manzi Jr. 
Michael P. Matthews
Stephanie M. Miles
Kelli Mitchell
Anne-Leigh G. Moe
William Edwards Muñiz
Edward J. Page
Jo Ann Palchak
Amanda Elizabeth Reagan
Randall O. Reder
Scott L. Robbins
Brent Rose
Craig Rothburd
Jack Michael Rosenkranz
Daryl Lee Saylor Jr.
Isabel “Cissy” Boza Sevelin
J. Michael Shea
Olin G. Shivers
Allison Willis Singer
Patrick W. Skelton
Jeanne T. Tate
Stephen Mark Todd
Zilia C. Vasquez
Miriam Velez-Valkenburg
Sylvia H. Walbolt
Nicholas E. Williams
Mamie Wise
Katherine Yanes
Rachel May Zysk

50-99 Pro Bono Hours
Jacqueline N. Acosta
Adam Alaee
Herbert Ray Allen II
Jacqueline Ambrose
Amy Bandow
Michael Barnett
Bernard A. Barton Jr.
Noel R. Boeke
Amanda Chafin
Amanda Chazal
Thomas Danahy
Jonathan Z. DeSantis
Philip A. Diamond
Bill W. Dolence Jr.
Amy Drushal
Lisa Esposito
Scott D. Feather
Daniel Fischetti
Jaret J. Fuente
Christopher L. Griffin
Katherine L. Heckert
Hugh Higgins
Benjamin H. Hill III
Carol Hinds
Craig Jorgensen
William Jung
Cristin C. Keane
Dominic Kouffman
Alissa A. Kranz
Nathaniel M. Lacktman
Robert W. Lang
Ellen K. Lyons
Anne C. McAdams
Fredrick H.L. McClure
Marian McCulloch
Melinda McLane
Kathleen S. McLeroy
Patrick K. Meehan
A.J. Musial Jr.
Kevin J. Napper
Jennifer E. Neubauer
Samantha Orender
Norman Palumbo
Terri Parker
Tylerr Parramore
Andrew E. Peluso
Sandra G. Porter
Shaun Puri
Robert Marshall Rainey
Roger D. Schwenke
Albert P. Silva
Lakeisha Simms
David B. Singer
Debra Smietanski
Traci Stevenson
Blake A. Taelman
Janae Thomas
Colin Thompson
Hon. Barbara Twine-Thomas
Michael Tyson
Dane R. Ullian
Lauren Valiente
Joseph H. Varner III
James R. Wiley
Mark Wolfson

20-49 Pro Bono Hours
Deborah Adles
Sara Alpert
Onchantho Am
Scott Anderson
Michael D. Annis
Dale Appell
Lynwood Arnold
Raz Axente
Lori Y. Baggett
Douglas Baker
Sean Becker
George Bedell
Mike Bedke
Cecilia Bidwell
Dana R. Blunt
Eric Boles
Michael Broadus
Nancy Browder
David P. Burke
O. Kim Byrd
Alex Caballero
Patricia Calhoun
Michael Califano
Lauren E. Catoe
Marina Choundas
Robert Cochran
Jeanne Coleman
Phillip Colesanti
Matthew J. Conigliaro
Lewis Conwell
Kami Corbett
Shane T. Costello
Chris S. Coutroulis
Kirk Crowder
Victoria Cruz-Garcia
Thomas Curran
Wilhelmina Curtis
Heather DeGrave
Katelyn Derosiers
Michelle Drab
Fentrice D. Driskell
Megan Ellis
Katie Everlove-Stone
Keith Fendrick
Megan Flatt
Helen Fouse
James Giardina
Robert H. Gidel
Michelle Gilbert
Karla F. Gonzalez-Acosta
Robert Grammig
Rachel Greenstein
Richard B. Hadlow
Eric Hall
Matthew F. Hall
R. Reid Haney
Lynn Hanshaw
Marcos Hasbun
Donald E. Hemke
K. Tyler Hill
David Hoffman
Ronald Holliday
Laura Howard
Dennis Hudson
Tyler J. Hudson
Michelle Hutt
Thomas Hyde
Rebecca Jensen
Rachel Jones
Cathy Kamm
Stephanie Kane
Bradford D. Kimbro
Donald R. Kirk
Robert Kline
Julia Knight
Douglas Knox
Gary Koch
Edward F. Koren
John J. Lamoureux
Casey Lennox
Walter C. Little
Karen Lloyd
Kate Lucente
David L. Luikart III
William J. Malachowski
Paul Maney
Lilly McCarty
Kevin P. McCoy
Paul A. McDermott
George J. Meyer
Victoria F. Oguntoye
Jason J. Quintero
Anthony J. Palermo
Adriana Paris
Rinky S. Parwani
Maria Pavlidis
J. Trumon Phillips
Gary Lee Printy Jr.
David R. Punzak
Mark Rankin
Angela Rauber
David Rauscher
Mark Robens
Hardy L. Roberts III
Jane Sabotta
Lawrence Samaha
Gary Sasso
William Schwarz
Carly Self
Ella Shenhav
Kevin Shuler
Timothy J. Sierra
Tori C. Simmons
J. Scott Slater
Christopher Smart
Jennifer Soberal
Jan Soeten Jr.
Nicole Soto
James Spoor
Scott A. Stichter
Amy Stoll
Charles L. Stutts
Ed Suarez
Dona Suplee
Stephen J. Szabo
David L. Theyssen
Natalie Thomas
James Thorpe
Wes Tibbals
Kimberly Van Bibber
Elizete Velado
Kristopher J. Verra
Roland Waller
Bethanne R. Walz
Hon. Laura Ward
Janelle Weber
Dirk Weed
Martha Irene Weed
Randolph J. Wolfe
Katelyn Wright
Barbara Yadley
Gwynne A. Young

Immigration Law: Conducting an Internal I-9 Audit

By Maria del Carmen Ramos

Since 2009, there has been a dramatic change in Immigration and Customs Enforcement’s (ICE) workforce enforcement strategy. Before 2008, ICE focused its enforcement efforts almost exclusively on illegal workers. In 2009, however, ICE shifted its focus from illegal workers to employers who knowingly hired unauthorized workers. As part of its strategy of targeting employers, ICE began setting up centers across the country that are fully dedicated to worksite inspections.

Under the Immigration Reform and Control Act of 1986 (IRCA), employers are required to verify that an employee is authorized to work in the United States by completing and maintaining a completed Form I-9 for each employee hired on or after November 6, 1986. ICE enforces employers’ obligations under IRCA by, among other things, inspecting their I-9 forms.

Each I-9 violation can carry a penalty of $110 to $1,100 per form. Of course, the easiest way for employers to avoid potential fines is to make sure they are complying with their I-9 obligations — before they get audited. But employers should also consider conducting a self-audit to minimize the potential for fines. Here are five things to consider when conducting an I-9 self-audit:

  1. Review Current I-9 Procedures. Review your verification system and policies to ensure that your policies satisfy IRCA and are being followed in practice. 
  2. Compare I-9 Forms with Payroll Records. Prepare a computer printout of all employees hired since November 6, 1986, containing the date of hire and date of termination for all such employees, to ensure there is an I-9 form for each employee.
  3. Review How I-9 Forms Are Maintained. Make sure the I-9 forms are separated from employees’ personnel files and maintained in a separate I-9 file (or maintained electronically in compliance with the specific controls for electronic retention).
  4. Correcting and/or Replacing a Form I-9. If the employer needs to correct the I-9 form, the new information should be inserted, signed, and dated as of the time of the insertion. If the omission or mistake was in Section 1 of the I-9 form, the employee should also sign and date the correction.  Above all, the form should not be backdated.
  5. Completing an Audit. Prepare a file memo that includes, at a minimum, errors discovered, corrections made, actions taken, any changes in policies, or training to undertake.
More than ever, employers should be particularly diligent when it comes to complying with their Form I-9 obligations. Remember, an employer faces civil and potential criminal liability for hiring undocumented workers (regardless of whether it was done knowingly). At the same time, an employer opens itself up to discrimination charges for not hiring newly documented workers who previously presented fraudulent documents. Going forward, worksite enforcement inspections are only expected to increase. So being proactive and conducting a proper self-audit will be key to minimize potentially substantial fines.

Tuesday, April 28, 2015

Intellectual Property Law: Warranties of Noninfringement and Allocation of Infringement Risk

By Jeff Fabian

In the electronic age, purchases move fast and often without a contract. The parties to a transaction may give little thought to allocating the risks involved. Even when the parties do enter a written agreement, with so many terms to negotiate and consider, the risk of intellectual property infringement might seem too remote to address.

So what happens then if the buyer or seller is accused of infringing the intellectual property rights of a third party? The answer to this question can have serious consequences. The mere threat of infringement can drive buyers to a different supplier. And the cost of litigating intellectual property disputes can be substantial. A 2013 American Intellectual Property Law Association survey reported that the average cost of litigating a patent-infringement suit through trial was $930,000 for cases where the amount of damages at stake was less than $1 million. The average cost of litigating even the smallest copyright, trademark, or trade secret disputes can range from $373,000 to $581,000.

When the issue is not addressed by a written contract, sellers are generally deemed to have sold goods subject to an implied warranty of noninfringement — that is, sellers warrant that the goods are free from any “rightful” infringement claim. Sellers may be responsible to indemnify a buyer for damages, as well as the attorneys’ fees and costs of defending an infringement claim. In some cases, this can be akin to giving buyers carte blanche to defend the claim, and sellers might even be on the hook for settlements entered by a buyer. 
Importantly, proof of infringement isn’t necessary to breach the warranty, and a seller’s duty to indemnify a buyer arises upon receiving notice of the infringement claim. Court opinions vary on what constitutes a “rightful” infringement claim triggering the duty to indemnify, but under the most lenient standards, a rightful claim is any nonfrivolous claim having a significant impact on a buyer’s ability to use purchased goods. In short, sellers might be on the hook to indemnify a buyer even when the claim is relatively weak, and the monetary penalties can be substantial.

Sellers can try to protect themselves by disclaiming the warranty of noninfringement, as well as other warranties. Disclaimers must be in writing, reasonable, and conspicuous. It is a best practice to disclaim specific warranties by name. For obvious reasons, buyers might not accept a warranty disclaimer. And in some cases, the parties might exchange differing contract forms that “knock out” any warranty disclaimers.

The best way to avoid these problems is for the parties to negotiate a signed agreement. The parties should consider their options in allocating infringement risk, such as requiring a judgment based on a contested claim before indemnity is triggered, adding the right to negotiate a license, refunding the purchase price or cost of a substitute product, or an option for the seller to defend infringement claims. Negotiation can be time-consuming and expensive, but it is the best way to avoid surprises and ensure an enforceable agreement.

Monday, April 27, 2015

Diversity Committee: A Double Take - Same-Sex Marriage Before the Supreme Court Again?

By Dawn Siler-Nixon

You may think this issue is old news given Florida’s January 6 recognition of same-sex marriages following the U.S. Supreme Court’s refusal to extend the stay of a federal district court decision finding the state’s ban on same-sex marriages unconstitutional, but it’s not over.  The U.S. Supreme Court was planning to hear arguments in four same-sex marriage cases in April, potentially settling the divisive issue by the end of the current term. The justices were planning to consider an appeal from the Sixth Circuit decision that upheld state same-sex marriage bans in Michigan, Ohio, Kentucky, and Tennessee. Arguments are limited to the following two questions: 1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?

The decision to hear these cases follows on the heels of Florida’s recognition and the Fifth Circuit’s extremely critical questioning of state bans in Texas, Louisiana, and Mississippi. Only three federal courts have upheld state marriage bans since 2013 ― the Sixth Circuit and federal district courts in Louisiana and Puerto Rico. 

The Supreme Court had set oral argument for the cases on April 28, 2015, and had stated that it would release the audio recording of the arguments on the same day.

The Supreme Court’s decision will not change the current federal law that requires that all federal benefits be administered as if the state law and benefits plan recognize same-sex marriage. No medical plan can impute income, for federal income tax purposes, to an employee for covering their same-sex spouse under the plan. The cost of benefits provided to same-sex spouses covered under the plan (regardless of whether they live in a recognition state) would not be imputed to the employee but would be treated on a pre-tax basis. The benefits plan must recognize same-sex spouses for the purpose of administering federal statutory benefits, such as HSAs, FSAs, and COBRA, regardless of whether the plan recognizes same-sex spouses.

The Supreme Court’s decision could impact whether fully insured plans are required to extend coverage to same-sex spouses. Although self-insured plans may continue to use a plan-specific definition of spouse, they may be subject to federal and state antidiscrimination claims. In fact, employees have begun successfully litigating the exclusion of same-sex spouses from self-insured plans under federal and state antidiscrimination laws. Recent case law has found that ERISA’s preemption provisions may no longer provide protection for the design flexibility once afforded to employers providing self-insured plans. As a result, enacting a definition of “spouse” that is at odds with the state and federal definition may considerably increase a plan’s potential exposure to lawsuits under state and federal antidiscrimination statutes, such as Title VII and the Equal Pay Act.

Keep your eyes peeled for the upcoming decisions. 

Thirteenth Judicial Circuit Professionalism Committee Submits 2014 Annual Report

The Thirteenth Judicial Circuit Court Professionalism Committee recently submitted its 2014 Annual Report on Professionalism. The report, submitted on January 30, provided a review of the Professionalism Committee’s current professionalism projects and featured the Thirteenth Circuit’s continuing commitment to professionalism, which was exemplified by the efforts of the Professionalism Committee and its organizational and individual members over the past year.  Highlights from the report include:

•    The Professionalism Committee created two additional subcommittees — the 2015 Professionalism Award Subcommittee and the Medical/Legal Subcommittee.

•    The Promotions Subcommittee of the Professionalism Committee created and distributed over 500 informational brochures on the Local Professionalism Panel. The court administrator has agreed to make 1,000 additional copies, which are to be distributed primarily at the Hillsborough County courthouses.

•    On October 30, 2014, the inaugural Thirteenth Judicial Circuit Professionalism Award was presented to Deborah Werner for her commitment to professionalism, involvement in the legal community, and promotion of young lawyer mentoring.

•    The Professionalism Committee offered various trainings and presentations in 2014, including a Continuing Judicial Education program and a professionalism presentation at the Hillsborough County Bar Association’s 18th Annual Bench Bar Conference.

As Justice Lewis explained in In re Code for Resolving Professionalism Complaints, 116 So. 3d 280 (Fla. 2013), “[P]rofessionalism or acceptable professional behavior is not simply a matter of character or principles nor is it simply an issue of rule-following or rule-violating.  To the contrary, unacceptable professional conduct and behavior is often a matter of choice or decision-making.” Through the efforts of the Professionalism Committee and its member organizations, the Thirteenth Judicial Circuit endeavors to continue improving overall professionalism by encouraging individual members of the local legal community to make ethical and professional decisions in their daily practice.

For a copy of the 2014 Annual Report on Professionalism, please contact Joan Boles or Elise Pautler.

Saturday, April 25, 2015

Labor and Employment Law: NLRB Rules That Employers Must Permit Non-Business Use of Email

By Scott T. Silverman and Dee Anna D. Hays

On December 11, the National Labor Relations Board (NLRB) reversed its prior position and held that employee use of email for activities directed to terms and conditions of employment must presumptively be permitted by employers who have given employees access to their email systems. The board’s decision in Purple Communications, Inc., 361 NLRB 126 (2014), means that employees have the legal right to use company email for non-business-related reasons, including union organizing, and will require most employers to revise their electronic communications policies. The shift in the board’s opinion reflects the change in its political makeup, with its three Democrats reversing prior precedent and its two Republicans dissenting.

The Purple Communications decision is troublesome for employers because it is essential for most employers to provide employees with access to email systems for business purposes.  Previously, in Register-Guard, 351 NLRB 1110 (2007), the board held that an employer may completely prohibit employees from using its email system for non-business purposes, provided it did not apply the ban discriminatorily. In Purple Communications, the board decided this analysis was "clearly incorrect," focusing too much on employer property rights and too little on the importance of email to workplace communication. The majority opinion found email to be akin to the "new water cooler," a "natural gathering place" for employees. Because an employer may not ban discussions on its property during non-working time, an employer may likewise not ban conversations occurring through email.

The board characterized its decision as "carefully limited" in two ways, neither of which provides much comfort to employers. First, the decision only applies to employees who have already been granted access to email systems, and employers are not required to grant access; however, most already do. Second, in undefined and "special circumstances," an employer may justify a total ban on non-work use of email to maintain production or discipline.  

An employer is permitted to apply limited, uniform, and consistently enforced controls over the email system, such as prohibiting mass emails and large attachments or audio/video segments. Further, "[a]n employer's monitoring of electronic communications on its email system will similarly be lawful so long as the employer does nothing out of the ordinary, such as increasing monitoring during an organizational campaign, or focusing monitoring on union activists." Additionally, an employer may continue to notify employees that it monitors email for management reasons and that there is no expectation of privacy in employee use of the email system. 

The board continues to increasingly govern the non-union workplace. Although the decision will likely be appealed to federal court, employers are urged to immediately review their handbooks and consider revising them to come into compliance with the new standard. As a final note, the Purple Communications decision came just one day before the board implemented its long-anticipated "ambush election rules." Now many union elections will occur within a mere 10 to 21 days after a union requests a vote.

Wednesday, April 22, 2015

Mediation & Arbitration Section: Federal Pro Bono Mediation Initiative

By Amy Mahan Tamargo 
“I don't know what your destiny will be, but one thing I know: The only ones among you who will be really happy are those who have sought and found how to serve.”
― Albert Schweitzer
In addition to boosting happiness, providing pro bono service fulfills lawyers’ and mediators’ professional responsibilities. Rule 4-6.1 of the Rules Regulating The Florida Bar sets forth the aspirational goal that members provide at least 20 hours of pro bono legal services to the poor annually. Likewise, Rule 10.690 of the Florida Rules for Certified and Court-Appointed Mediators sets forth mediators’ responsibility to provide pro bono mediation services. A new opportunity to provide such services is underway.  The HCBA’s Mediation & Arbitration Section has teamed up with the U.S. District Court for the Middle District of Florida to create a pro bono mediation initiative. The initiative provides mediators with opportunities to offer the pro bono mediation services envisioned by the professional responsibility rules.

The initiative has built a roster of mediators who agree to mediate federal cases on a pro bono basis. To qualify, mediators must be certified pursuant to Middle District Local Rule 9.02. Middle District judges and magistrates, as well as lawyers and parties involved in pro bono cases, have access to the roster. These users contact mediators directly to schedule mediation. When contacted, roster members are not obligated to accept the mediation, allowing a mediator to decline a case he or she does not feel comfortable mediating, such as a case involving unfamiliar or complex subjects or legal concepts.  

Bankruptcy Court Judge Catherine McEwen, past chair of the Thirteenth Judicial Circuit’s Pro Bono Committee, was instrumental in creating the initiative and has used the roster in cases that have come before her. Some examples of the types of cases where she has assigned mediators from the roster include contract, fraud, and securities fraud cases. She often assigns mediators from the roster in cases where there is a pro bono attorney or where one side has an attorney and the other is pro se. The initiative provides a meaningful opportunity for pro se or other indigent litigants to participate in mediation and get its benefits, namely: (1) containing costs, (2) eliminating the unpredictability of judges, and (3) allowing litigants to control their own destiny.  

In addition to benefitting underprivileged litigants, the initiative provides benefits to the mediators on the roster. While satisfying professional responsibility goals, the initiative provides opportunities for mediators to build or expand their practices. From a professional development perspective, it is an opportunity for mediators to gain mediation experience. From a marketing perspective, it gives mediators exposure to lawyers, judges, and parties who may hire them in the future for paying cases. And who knows, it just might make you really happy!

If you are interested in being included on the roster, please email your name, contact information, and a brief description of the types of cases you have experience handling as a lawyer or mediator to

Sunday, April 19, 2015

Trial & Litigation Section: New Pleading Requirements for Mortgage Foreclosures

By Morgan W. Streetman

Residential mortgage foreclosures remain a minefield for the unwary practitioner.  Without much notice and over the holiday season last year, the Florida Supreme Court made fast-track out-of-cycle changes to the pleading requirements for mortgage foreclosures.

In In Re Amendments to the Florida Rules of Civil Procedure, 153 So. 3d 258 (2014), the court adopts the amendments effective immediately, without the usual 60-day comment period preceding such changes. Though not explicitly stated in the opinion, the comment period appears to have been suspended until after adoption in an effort to more timely conform the Florida Rules of Civil Procedure to the legislative mandate of Chapter 2013-137, Laws of Florida. (The court's opinion misidentifies the relevant citation to the Laws of Florida; Chapter 2013-137 is the correct reference.)

The court adopts the new Rule 1.115, which relates only to pleading mortgage foreclosures. The verification requirement has been moved from Rule 1.110, the general pleading rule, into the new Rule 1.115 with a slight change in wording. The verification has been changed from being under “penalty” of perjury to being under “penalties” of perjury, though the legal effect of such a change is not clear. The Supreme Court also adopted new forms to comply with the new rule, which make it relatively straightforward for practitioners to comply with the changes.

Essentially, the amendments require the plaintiff in a mortgage foreclosure case to specifically allege the location, possession, ownership, and condition of the mortgage and note. The new forms indicate that case-specific facts are required to establish the right to foreclosure where a plaintiff is acting under an entitlement of law or a delegation of authority, as required by the statutory changes. See § 702.015(2)-(5), Fla. Stat. (2014).

The Legislature enacted section 702.015, Florida Statutes, to help relieve Florida courts of the backlog of foreclosure cases by streamlining the issues and procedure for handling those cases. As it states, “The Legislature intends that this section expedite the foreclosure process by ensuring initial disclosure of a plaintiff’s status and the facts supporting that status, thereby ensuring the availability of documents necessary to the prosecution of the case.” § 702.015(1),  Fla. Stat. (2014).

The amendments to the Rules of Civil Procedure, like section 702.015, are designed to address the core of many of the arguments raised by foreclosure defendants regarding the actual ownership of their mortgages. These arguments were in many cases effective in slowing the pace of foreclosures because the speed and complications introduced by the financial industry had outpaced the development and understanding of the law governing the transactions. Banks and investors had to play catch-up in learning what they actually owned, or didn’t own, and many residential homeowners had to play catch-up in understanding the complex ownership of their mortgages and loans by securitized trusts.  

The changes to the Rules of Civil Procedure apply to all mortgage foreclosures filed on or after July 1, 2013, and have taken immediate effect. Practitioners should review their pending matters to address any unwaived pleading deficiencies, and they should remain vigilant in checking The Florida Bar’s website for the most up-to-date rules and forms.

Friday, April 17, 2015

Military & Veterans Affairs Committee: Lend An Ear, Lend A Heart - The Misunderstood Affliction Of Post-Traumatic Stress Disorder

By George E. Nader

Your cherished loved one steps back on American soil, fresh home from the battlefield or military service thousands of miles away. Inside you burst with joy and relief. Outside you brim with smiles and exultation. Normalcy has returned. The family is back in tact. All is right in the world. Wait just a minute please. Not so fast. Your homebound veteran may not feel the same inside. 

Nearly every returning military veteran who has been exposed to danger or lived in a threatening environment will suffer some form of Post-Traumatic Stress Disorder, or PTSD. They do not necessarily have to have been involved in combat. They may not experience it the minute they arrive at our shores. The indices of PTSD may not be readily apparent, but they lurk within, and you can ultimately see it. You should realize it and try to understand the extent of its debilitating grasp. You should ask about it in a tender, loving, non-confrontational way. 

Dr. Michael Maher, a medical doctor board-certified in psychiatry with a practice in south Tampa, says ultra-sensitivity to risk and danger is normal for a returning veteran and can last up to six months. Concern may be warranted after three months if your vet appears stuck or moving backward. After six months, if your vet has not adapted and cannot go out at night, has a heightened sensitivity about safety, is jumpy, can’t make reasonable judgments about what really constitutes a danger, has sleep disturbance, suffers from extreme worry, has hostility in or withdraws from relationships, shows an inability to function, stays disconnected, or displays anger or anxiety, he or she likely has reached the threshold of PTSD, and it’s time to get help. Other signs include hypervigilance, mistrust, alienation, flashbacks, nightmares, and guilt. When parents return from military service and will not attend their kids’ baseball or softball games, PTSD is full blown, and loved ones must act. 

PTSD is disabling and potentially life threatening. It needs attention and care. PTSD has nothing to do with being strong or weak, and it may not be in proportion to the danger to which a veteran was exposed.

“It’s not a big mystery like you might think,” says Dr. Maher. “You should be on the lookout for it.” Dr. Maher says it’s OK to ask questions like: “I know you are back; how are you doing? Is there anything I can do for you? I know it can be a tough time, and I appreciate this can be a hard thing. If I can help you in any possible way, please let me know.”

Avoidance of the subject by family and friends is absolutely the wrong response, Dr. Maher says. Giving your veteran space is appropriate, and you should never pressure him or her into talking. However, simple, caring questions like those above will help the vet ease into the assistance he or she needs. Often, veterans or other people suffering from PTSD are in denial, not so much that they were in a rough and dangerous place but more so in thinking, “I can handle it” or “It’s not really getting to me.” Loved ones should always express “I’m here for you” and be open to their issues. Be patient, as they may want to recount the same things repeatedly. 

Dr. Maher says the best therapy for PTSD is having someone to talk with and understand what the veteran has been through. Engage the veteran in a meaningful discussion of his or her experience, with compassion and respect. Both professional help through cognitive therapy and dialogue with family and friends are invaluable. Medical therapy is secondary. The dual approach of professional and family/friend help is the ticket to healing. Relaxation techniques, support groups, family group therapy, exercise, being outdoors, and getting involved in church, school, or volunteer organizations are also beneficial. 

Outward, demonstrable signs like fear, crying, and depression may not always be apparent.  Whether deployed as active-duty personnel or through the reserves, whether in the Army, Navy, Air Force, Marines, or Coast Guard, veterans with PTSD may not display such obvious symptoms. Thus, the need to ask is imperative … as well as to lend an ear and, most importantly, lend a heart. 

Tuesday, April 14, 2015

Securities Law: Forum Selection Clause Trumps Obligation to Arbitrate

By Lonnie L. Simpson

The U.S. Court of Appeals for the Second Circuit recently considered whether a forum selection clause defeated a customer’s right to arbitrate under the Financial Industry Regulatory Authority (FINRA) rules. In Goldman, Sachs & Co. v. Golden Empire Schools Financing Authority, 764 F.3d 210 (2d Cir. 2014), the Second Circuit concluded that an all-inclusive and mandatory forum selection clause superseded the FINRA arbitration rule, precluding customers from arbitrating their claims through the FINRA dispute resolution process.

In Golden Empire, two public financing authorities retained two financial services firms to underwrite issues of auction rate securities (ARS) through written underwriting agreements. The underwriting agreements were silent as to arbitration. In separate written broker-dealer agreements, the public financing authorities also retained the financial services firms to manage the auctions for the securities issued, among other services. The broker-dealer agreements contained forum selection clauses that required “all actions and proceedings” related to the transactions between the parties to be brought in the United States District Court for the Southern District of New York. The broker-dealer agreements also contained merger clauses stating that they and any other agreements executed in connection with the ARS contained the entire agreement between the respective parties to those agreements.

The public financing authorities brought FINRA arbitration proceedings against their respective financial services firms, alleging that the FINRA-member firms had fraudulently induced the public financing authorities to issue the ARS. Both financial services firms sued in federal district court to enjoin the FINRA arbitrations, arguing in part that the forum selection and merger clauses in the broker-dealer agreements superseded the FINRA rule that required arbitration. Finding that the forum selection clauses in the broker-dealer agreements overrode the FINRA rule governing arbitration, the district court granted the financial services firms’ motions for preliminary injunction.

The Second Circuit affirmed, first noting that FINRA’s arbitration rule, Rule 12200, supplied written agreements to arbitrate between the financial services firms and the respective public financing authorities. As such, the financial services firms would be required to arbitrate the public financing authorities’ claims if their agreements were not otherwise superseded. The appellate court observed that an agreement to arbitrate is superseded by a later-executed agreement containing a forum selection clause if the clause specifically precludes arbitration, although the forum selection clause need not mention arbitration to specifically preclude it. Rather, to supersede the default obligation to arbitrate under FINRA Rule 12200, the forum selection clause need only be “sufficiently specific to impute to the contracting parties the reasonable expectation that they would litigate any disputes in federal court.” Id. at 216 (quoting Goldman v. City of Reno, 747 F.3d 733, 744 (9th Cir. 2014)).

The Golden Empire court found the forum selection clause at issue, which stated “all actions and proceedings … shall be brought” in the Southern District of New York, to be all inclusive and mandatory. As such, the court concluded that the forum selection clause, buttressed by a merger clause, superseded the FINRA arbitration rule.

Friday, April 10, 2015

Health Care Law: Federal Judge Rules Florida Medicaid Program Violates U.S. Laws

By Amy Nath

In an unpublished decision in the final days of 2014, the United States District Court for the Southern District of Florida found that Florida’s health care system for needy and disabled children violated several federal laws.

The action in Florida Pediatric Society v. Dudek, Doc. No. 1294, No. 1:05-23037-CIV (S.D. Fla. Dec. 31, 2014),
was initiated in 2005 by the Florida Pediatric Society, the Florida Association of Pediatric Dentists, and on behalf of several children in the Medicaid program by their parents or legal guardians. The defendants included the Florida Agency for Healthcare Administration (AHCA), the Florida Department of Children and Families (DCF), and the Department of Health (DOH). AHCA is the agency responsible for providing oversight of Florida’s Medicaid program and is authorized to make payments for Medicaid-covered goods and services; DCF is responsible for making Medicaid eligibility determinations; and DOH administers Florida’s Children’s Medical Services program, which is responsible for ensuring that certain Medicaid patients with special health care needs receive Medicaid services.

Among its findings, the court stated that these agencies violated federal law because Florida’s Medicaid program had not compensated primary care physicians or specialists at competitive rates as compared with rates paid by Medicare or private insurance payors. Id. at 144.  The federal Medicaid statutes require that medical assistance be furnished with reasonable promptness to all Medicaid-eligible individuals (the “Reasonable Promptness” provision). 42 U.S.C. 
§ 1396a(a)(8) (2015). Such medical assistance includes “early and periodic screening, diagnostic, and treatment services” (EPSDT Services) for Medicaid-eligible individuals younger than 21. 42 U.S.C. § 1396d(a)(4)(B) (2015). The court reasoned that the state’s structure for setting physician reimbursement failed to account for statutorily mandated factors, including sufficient compensation to assure an adequate supply of Medicaid physicians to meet the EPSDT Services requirement. Florida Pediatric Soc'y, Doc. No. 1294 at 144.

Other factors the court relied upon to find an improper deprivation of rights to EPSDT Services included violations (often the result of bureaucratic error) of continuous Medicaid eligibility requirements and the failure of AHCA and DCF to promptly work together to ensure that when appropriate, newborns of Medicaid-eligible mothers were also Medicaid-eligible. Id. at 145. The court explained that failure in this “baby of” process resulted in delayed activation of the child’s Medicaid number, which in turn delayed the child’s receipt of EPSDT Services (and violated the Reasonable Promptness provision) or his or her provider’s receipt of payment. Id. at 74-75, 145.

The court also found that Florida’s physician reimbursement-setting practice resulted in artificially low Medicaid rates for certain physician services without consideration of physician-incurred costs or what is needed for sufficiently competitive rates to attract providers. Id. at 144. In support of its finding, the court pointed to AHCA’s process for determining Florida Medicaid rates for certain services; to achieve budget neutrality, AHCA used a conversion factor to convert Medicare’s reimbursement rates to lower rates for use in the Florida Medicaid program. Id. at 59, 143.

The defendants raised mootness points in response to the plaintiffs’ arguments, and as of the submission date for this article, a hearing is pending for further briefing with the parties on these points. Id. at 153. The discussions on Medicaid expansion in Florida, as well as Medicaid physician reimbursement under the Affordable Care Act, continue in 2015. It will be interesting to see how these discussions are colored by the points raised in the Florida Pediatric Society case.

Thursday, April 9, 2015

Real Property, Probate & Trust Law: Vacant and Abandoned Property Registration

By Jennifer Lima-Smith

Vacant and abandoned property is recognized as a significant barrier to the revitalization of central cities. There have been numerous U.S. studies on its effects on communities. Researching the topic online produces many informative articles. What’s the bottom line from all these surveys? Findings show that vacant and abandoned property is perceived as a significant problem by residents and elected and appointed officials in the nation's largest central cities, especially those with large populations.

Think about your experiences and feelings when you see vacant property in the neighborhood you happen to be in. Usually, the emotion isn’t a pleasant one. The reason for the vacancy or abandonment could be circumstances such as a lost job, illness, mismanagement of finances, death of the bread winner in the family, reset of mortgage interest rates, foreclosure, eviction, etc. Studies have shown that single- and multi-family housing, retail properties, and vacant land are the most problematic types for most cities. Properties that have been abandoned and allowed to become overgrown, and those whose structures are left open and unsecured, not only have a negative impact on community value but also can create conditions that invite criminal activity and foster an environment that is unsafe and unhealthy for our communities. It is for these reasons that abandoned properties must be maintained so as not to create these nuisance conditions.

Cities and counties use a variety of registration ordinances, regulations, and innovative techniques to address this problem, including aggressive code enforcement, tax foreclosure, eminent domain, and cosmetic improvements. In Florida, regulations, codes, and ordinances outline which properties need registration.

Purposes for vacant property registration ordinances are threefold:

  1. To ensure that owners of vacant properties are known to the city and other interested parties and can be reached if necessary;
  2. To ensure owners of vacant properties are aware of relevant codes and regulations;
  3. To ensure owners meet minimum standards of maintenance for vacancies.

A fourth purpose, although not always stated, is to motivate owners to use the properties.

Ordinances should include the following elements: a clear definition of which properties and which parties must register; requirements and procedures for registering, including information required of the owner or lienholder; the fee structure; the obligations of the owner, with respect to maintaining the property; and the penalties for failing to register in a timely fashion. Fee structures vary and could include covering basic maintenance costs to motivate owners to restore and reuse vacant properties.

Best practices include: providing the owner or agent phone number and mailing address within the state (if a Post Office box is used, it must be accompanied by a physical address); certifying and documenting the property has been inspected; designating and retaining an individual or property management company responsible for the security and maintenance of the property; and remembering things change — for example, in one Florida county, the code changed for regulating acceptable grass height.

It’s always best to consult with local counsel for any questions.

Tuesday, April 7, 2015

New Season, New Elder Law Programs!

By Elizabeth Allen and Debra Dandar

Spring is just around the corner! As we switch gears to a new season, we would like to take this opportunity to share what occurred during our first meetings of 2015 and to update you on the lineup of speakers for the rest of the 2014-2015 year.

Our first speaker of 2015 was scheduled to be Dale Krause of Krause Financial Services; however, due to bad weather and flight delays, Dale was unable to attend the meeting. Instead, the meeting went forward as an open forum, which was well attended and very well received.  Topics discussed included gifting-exempt assets, a complex SSI case study, and use of contingent SNTS in wills. Since this format worked so well, we may wish to consider scheduling at least one open forum meeting each year so that we can discuss complex issues that each of us is facing.

On February 5, Travis Finchum, a co-trustee of Guardian Pooled Trust, instructed us on SSI rules and lesser-known Medicaid programs such as QMB, SLMB, QI1, and Medically Needy. Travis also answered questions regarding special-needs trusts.

On March 13, April Hill and Javier Centonzio gave us an insider’s overview of the VA health care system, as well as VA Pension and Aid & Attendance, service-connected compensation, and other VA benefits. April (Hill Law Group) is a frequent lecturer on these topics, and Javier (also of Hill Law Group) is a former clerk for the Federal Court of Appeals for Veterans’ Claims.

On April 23, Tae Kelley Bronner, a renowned expert on the subject of homestead, will be the speaker for a joint luncheon between our section and the Real Property, Probate & Trust Law Section. Tae will provide us with a review of the relevant law regarding the constitutional homestead exemption from claims of creditors and the impact of trusts on the availability of that exemption.

Dale Krause has been rescheduled and will appear at our final meeting of the year on May 29 to provide us with an overview of Medicaid and VA compliant annuities, options available to deal with noncompliant annuities, and the use of annuities in personal service contracts.

Each luncheon qualifies for one hour of CLE credit and provides the opportunity to visit and network with elder law attorneys and other professionals. Networking begins at 11:30 a.m., with luncheons at noon. All luncheons are held in the Chester H. Ferguson Law Center.

So please join us at our meetings, and as always, if you have suggestions or ideas or would like to submit an article for publication in 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 soon and hope that you enjoy our final speakers for the 2014-2015 year.

Monday, April 6, 2015

Professionalism & Ethics Committee: Retention of Client Funds and Forgery Require Sanctions

By Caroline Johnson Levine

The Florida Supreme Court has been vested with the exclusive jurisdiction to discipline members of The Florida Bar. See Article V, § 15, Fla. Const. The Rules of Ethics provide the disciplinary guidelines used by the court to determine whether an attorney can be disciplined. When the Supreme Court determines the appropriate discipline for an attorney, it issues an opinion establishing its jurisdiction, the applicable rules, and its factual findings for sanctioning an attorney.    

In Florida Bar v. Ross, 140 So. 3d 518 (Fla. 2014), the Supreme Court considered whether Ross committed ethical violations. Count 1 charged that Ross “was paid a $10,000 retainer from which [Ross] would be paid based upon billing at an hourly rate.” Id. at 519. Subsequently, the client terminated Ross and made numerous requests for an accounting and final bill. After three years, Ross returned $5,000 to the client without a final accounting. Count 2 charged that Ross forged the signature of a California attorney in order to file an action on behalf of himself and four relatives against a conservator and trustees who were managing a trust for his aunt. 

The Florida Bar began a disciplinary action against Ross for violating Rules 4-1.4, 4-1.16, 4-3.3, and 4-8.4. The referee recommended that Ross should be suspended from the practice of law for six months. However, the Supreme Court entered an order suspending Ross for three years, finding that Ross “engaged in serious misconduct” for refusing to return client funds and “knowingly fil[ing] a fraudulent document in court.” Ross, 140 So. 3d at 521; see also Fla. Bar v. Kickliter, 559 So. 2d 1123 (Fla. 1990). 

The Supreme Court declared that “[m]isrepresentations and dishonesty warrant severe discipline.” Ross, 140 So. 3d at 522; see also Fla. Bar v. Hall, 49 So. 3d 1254 (Fla. 2010) (entering an order of disbarment for an attorney who recorded a forged document with the clerk of court). Further, “[d]ishonest conduct demonstrates the utmost disrespect for the court and is destructive to the legal system as a whole.” See Fla. Bar v. Head, 27 So. 3d 1, 8 (Fla. 2010). Additionally, the court affirmed that a “lawyer is required to promptly deliver to a client any funds that a client is entitled to receive.” Ross, 140 So. 3d at 523; see also Fla. Bar v. Grosso, 760 So. 2d 940 (Fla. 2000).

The Supreme Court may impose austere sanctions in disciplinary actions because the “discipline [imposed] must protect the public from unethical conduct, must be fair to a respondent yet sufficient to sanction the misconduct and encourage reformation and rehabilitation, and must be severe enough to deter others who might be prone or tempted to become involved in like violations.” Ross, 140 So. 3d at 523 (emphasis in original); see also Fla. Bar v. Jasperson, 625 So. 2d 459 (Fla. 1993). Accordingly, an attorney’s easily avoidable conduct in one or two matters can result in substantial consequences, including losing the ability to practice law.