Wednesday, February 24, 2016

Real Property, Probate & Trust Law: What Notice Is Due to Ascertainable Creditors in Estate Proceedings?

By Robert S. Walton

        Recently, the Florida Supreme Court held that “claims of known or reasonably ascertainable creditors of an estate who were not served with a copy of the notice to creditors are timely if filed within two years of the decedent’s death.” Jones v. Golden, 2015 WL 5727788, at *7 (Fla. Oct. 1, 2015) (emphasis added). The decision ends the conflict between the Fourth District Court of Appeal’s ruling in Golden and the decisions of the First and Second District Courts of Appeal in Morgenthau v. Andzel, 26 So. 3d 628 (Fla. 1st DCA 2009) and Lubee v. Adams, 77 So. 3d 882 (Fla. 2d DCA 2012), which both held that unless reasonably ascertainable creditors filed a motion for an extension of time under section 733.702(3), Florida Statutes, claims filed three months after the first publication of the notice to creditors are forever barred.

         The Florida Supreme Court’s decision involved three particular provisions of Chapter 733, Florida Statutes: sections 733.2121, 733.702, and 733.710. Section 733.2121(1) sets forth the duty of a personal representative to promptly publish a notice to creditors, which “must state that creditors must file claims against the estate with the court during the time [limitations] periods set forth in § 733.702, or be forever barred.” § 733.2121(1), Fla. Stat. (2005) (emphasis added). Section 732.2121 also requires that a personal representative make a “diligent search to determine … creditors who are reasonably ascertainable” and “promptly serve a copy of the notice on those creditors.” § 733.2121(3), Fla. Stat. Section 733.702 is a “statute of limitations” that limits the time for creditors to file claims against the estate to three months after the first date of publication of the notice to creditors. Golden, 2015 WL 5727788, at *8; see also § 733.702, Fla. Stat. (2006). Section 733.710 is a “jurisdictional statute of nonclaim” that limits the liability of the personal representative and the beneficiaries of the estate for “any claim[s] … against the decedent” to a period of two years from the decedent’s date of death. Golden, 2015 WL 5727788, at *6; see also § 733.710(1), Fla. Stat. (2001).

         In Golden, the decedent, Harry Jones, died in February 2007. The probate of his estate was opened in April 2007. Harry’s personal representative published the notice to creditors in June 2007. Harry’s personal representative, however, failed to serve a copy of the notice to creditors to Harry’s ex-wife, Katherine Jones, or to Katherine’s guardian. In January 2009, Katherine’s guardian filed a statement of claim against Harry’s estate. Katherine died in 2010, and Edward Golden was appointed curator of her estate. Golden argued Katherine’s guardianship was a reasonably ascertainable creditor. Harry’s personal representative argued “Katherine was not a reasonably ascertainable creditor and that her guardian’s claim was time-barred under section 733.702 and 733.710.” Golden, 2015 WL 5727788, at *3-4 (emphasis added). Relying on section 733.702 and 733.710, as well as Morgenthau and Lubee, the probate court struck the claim by Katherine’s guardian as untimely. Id. at *4.

         On appeal, Golden argued that since Katherine was a known or reasonably ascertainable creditor and the notice was never properly served on her, the three-month limitations period in section 733.702(1) never began to run, and as a consequence, the claim by Katherine’s guardian could only be barred by the two-year statute of nonclaim in section § 733.710. The Fourth District agreed with Golden’s argument. The Supreme Court ultimately affirmed the Fourth District in Golden and disapproved the decisions of the First District in Morgenthau and the Second District in Lubee. Id. at *18.

Saturday, February 20, 2016

Securities Law: Cyber Security – Under the Microscope of Regulators

By Matthew Schwart

        No industry is immune from cyber-attack by sophisticated computer hackers looking to take advantage of weak firewalls and system controls. We regularly read headlines about large companies (i.e., Sony Pictures, Staples, The Home Depot), that suffer a breach that reveals their customers’ non-public, personally identifiable information. In June 2015, the Federal Office of Personnel Management’s computer systems were breached, exposing 21.5 million federal employees’ non-public, personally identifiable information. These breaches lead to rampant fraud and identity theft, which cost these companies, and the government, hundreds of thousands of dollars. Ponemon Institute Research Report, 2015 Cost of Data Breach Study: Impact of Business Continuity Management (June 2015).

         The vast majority of Americans who own securities hold them at broker-dealers or registered investment advisors (RIAs). These financial institutions are required to have policies and procedures in place to ensure compliance with securities rules and regulations. More specifically, Rule 30(a) of Regulation S-P under the Securities Act of 1933 requires broker-dealers and SEC RIAs to adopt written policies and procedures reasonably designed to protect client records and information and to ensure the security and confidentiality of these records. 17 C.F.R. 248.1, et. seq. The purpose of Regulation S-P is to provide protection for financial and personal customer information held by financial institutions.

        On September 22, 2015, in the first enforcement case of its kind, the SEC entered into a settlement order with R.T. Jones, a St. Louis-based SEC RIA, for its alleged failure to establish cyber-security policies and procedures in advance of a breach. In this enforcement action, the SEC found that R.T. Jones was unable to prevent a data breach that compromised the non-public, personally identifiable information of nearly 100,000 individuals. Id. As part of the settlement, the firm agreed to cease future violations of Regulation S-P, to appoint an information security manager, adopt written security policies, and pay a $75,000 fine. Id. 

        Securities regulators have made it clear that cyber security, in the context of customer protection, is one of their highest regulatory priorities.  The R.T. Jones enforcement action signals a shift in regulatory attention to this previously overlooked and under-examined issue. As we can anticipate increased cyber-attacks across all industries, we can anticipate increased regulatory attention from securities regulators in this space. From a consumer standpoint, you should inquire with your broker-dealer and RIA to see what policies and procedures they have in place to ensure your personal information is not vulnerable to risks associated with cyber-attacks.

Thursday, February 18, 2016

Marital & Family Law: Bankruptcy and Domestic Support Obligations

By Alfred Villoch III

       An ex-spouse has fallen behind on alimony and now filed bankruptcy. That alimony will be discharged in the bankruptcy case, right?

       Not so fast. An ex-spouse cannot simply walk away from alimony, whether past, present, or future, by filing a bankruptcy case. Under Bankruptcy Code § 523, 11 U.S.C. § 523(a)(5), a debtor is not entitled to discharge any debt for a domestic support obligation, including alimony. 11 U.S.C. §§ 523(a)(5), (15).

       In fact, a bankruptcy court will not consider modification of alimony or other domestic support obligations,* like child support. This complete hands-off approach might seem harsh to some at first, but Congress wrote the Bankruptcy Code so that a person could not use “the protection of a bankruptcy filing in order to avoid legitimate marital and child support obligations.” In re Proyect, 503 B.R. 765, 773 (Bankr. N.D. Ga. 2013) (quoting H.R. Rep. No. 103-835, at 54 (Oct. 4, 1994), reprinted in 1994 U.S.C.C.A.N. 3340, 3363).

      An ex-spouse is not without recourse, however. Rather than file for bankruptcy, an ex-spouse may still turn to the state divorce court itself to modify the alimony and child support for the same financial reasons that would lead to or underlie a bankruptcy filing.

      Also, there is still some hope in bankruptcy. In certain limited instances, an ex-spouse in bankruptcy might argue that “what they owe” is not truly alimony or a domestic support obligation. For example, what if the state divorce court orders the ex-spouse to pay the other ex-spouse’s attorneys’ fees and costs? If the fees and costs awarded are punitive and not in the nature of support, then it may be possible to modify or discharge that obligation in bankruptcy.

       Bankruptcy courts look at the substance of the support obligation, largely disregarding what the parties call it. Cummings v. Cummings, 244 F.3d 1263, 1265 (11th Cir. 2001). The question is whether the obligation is “in the nature of support.” A debt is “in the nature of support” if, at the time the debt was created, the parties intended the obligation to function as support. The key determination in whether a debt is non-dischargeable alimony or a domestic support obligation under the Bankruptcy Code is the intent of the parties.

       In short, an ex-spouse cannot simply throw up his or her hands and file bankruptcy to avoid or modify alimony. Bankruptcy courts will only recharacterize and discharge a domestic support obligation if evidence shows that it is not in the nature of alimony, maintenance, or support.

* Note: “Domestic support obligation” is a broad term defined by the Bankruptcy Code and includes alimony, child support, and anything that is in the nature of alimony, maintenance, and support. 11 U.S.C. § 101(14A). 

Wednesday, February 17, 2016

Trial & Litigation: Amendments to Florida’s Construction Defects Statute

By Jaret J. Fuente and Mark A. Smith

        On October 1, 2015, amendments to Chapter 558, Florida Statutes, the “Construction Defects” statute, went into effect. Originally created in 2003, Chapter 558 requires pre-suit notice and an opportunity to inspect and propose a resolution before to commencement of construction defect lawsuits. It is intended as an alternative method to resolve construction disputes and protect the rights of property owners. § 558.001, Fla. Stat.

        Although well-intended and capable at facilitating pre-suit dialogue, some of the statute's requirements have created confusion among practitioners in application. The legislature recently attempted to clarify the statute by amending it to provide as follows:

§ 558.001 (Legislative Findings & Declaration) – Amended to add insurers of contractors, subcontractors, suppliers, and design professionals as parties who should be provided an opportunity to resolve claims through confidential settlement negotiations before litigation.

§ 558.002 (Definitions) – Amended the definition of “Completion of a building or improvement” to mean the issuance of a certificate of occupancy, whether temporary or otherwise, that allows for occupancy or use of the entire building or improvement.

§ 558.004 (Notice and opportunity to repair)

  • Subsection (1) dealing with the subject of pre-suit notice was split into three parts (a, b, c), and part b now requires greater detail from claimants, providing that: "Based upon at least a visual inspection … the notice of claim must identify the location of each alleged construction defect sufficiently to enable the responding parties to locate the alleged defect without undue burden. The claimant has no obligation to perform destructive or other testing for purposes of this notice."
  • Subsection (4) now provides that: "The written response must include one or more of the offers or statements specified in paragraphs (5)(a)-(e), as chosen by the responding contractor, subcontractor, supplier, or design professional, with all of the information required for that offer or statement."
  • Subsection (13) now provides that providing a copy of a notice of claim to an insurer shall not constitute a claim for insurance purposes unless the terms of the policy specify otherwise.
  • Subsection (15) now includes among records to be exchanged upon request: photos and videos of the alleged construction defect identified in the notice of claim and maintenance records and other documents related to the discovery, investigation, causation, and extent of the alleged defect identified in the notice of claim and any resulting damages. It also now states: "A party may assert a claim of privilege … with respect to any of the disclosure obligations specified in this chapter."

        These changes should assist in requiring greater detail from claimants and providing clarity with respect to the nature of responses to be provided and documents to be exchanged. Time will tell if this ultimately renders the amended statute more effective.

Monday, February 15, 2016

Workers' Compensation: Update on Pending Cases Before the Florida Supreme Court

By Anthony V. Cortese

       At the time this article was written, major issues in state workers’ compensation appeals were still pending before the Florida Supreme Court. All section members who have their email addresses registered with the HCBA workers’ compensation section will receive an email alert when each of those decisions is released. In the meantime, tensions are rising with the Florida Supreme Court’s grant of certiorari review in Stahl v. Hialeah Hospital, and major changes to the procedural rules governing Longshore and Defense Base Act claims and case law interpreting those acts are affecting specialists who practice in that field.

In Stahl v. Hialeah Hospital, 160 So. 3d 519 (Fla. 1st DCA 2015), the First District Court of Appeal argued that the 1994 addition of a $10 copay for medical visits after the claimant attains maximum medical improvement and the 2003 elimination of permanent partial disability benefits made the workers’ compensation law an inadequate exclusive replacement for a tort action. The Florida Supreme Court’s decision to grant certiorari review in Stahl could have significant implications for the two other workers’ compensation cases pending before the Florida Supreme Court: Westphal v. City of St. Petersburg and Castellanos v. Next Door.

By way of contrast, the Longshore Act and Defense Base Act provide generous medical and indemnity benefits without the limitations of Florida workers’ compensation statute. 33 U.S.C. §§ 907 and 908. But those acts do not permit the claimant to avoid exclusivity or immunity issues. Munn v. Kerry, 782 F.3d 402 (9th Cir. 2015) (holding that family members of three security guards kidnapped and murdered in Iraq could not pursue tort actions in civil court because those claims are precluded by the Longshore and Defense Base Acts). And recent decisions under the Longshore Act continue to make it more difficult for a claimant to obtain attorney fees from an employer or carrier under section 28(a). 33 U.S.C. § 928(a).

By providing minimal initial medical care, an employer or carrier can avoid fee shifting under section 28(a). Asadi v. Tradesman International, 2014-LHC-01003 (March 5, 2015). But a claimant will still be able to shift his or her attorney’s fee to the employer or carrier so long as he or she satisfies all of the formal requirements of section 28(b), including an informal conference, certain District Director recommendations, and refusal by the employer/carrier to comply with those recommendations. Id. A claimant should oppose a procedural effort by the employer or carrier to circumvent this initial procedure. Rendon v. L-3 Communications, 2015-LDA-00529 (June 30, 2015).

Longshore and Defense Base Act practitioners should also note that new procedural rules became effective over the summer. The changes are substantial, including new filing and conference requirements, limitations on discovery, and other procedures for hearings. The rules are available at It has long been held that failure to follow the rules or pretrial orders hearings can support various sanctions, such as excluding certain evidence or witnesses, dismissing claims, or striking defenses. See Williams v. Marine Terminals, 14 BRBS 728 (1981) and Durham v. Embassy Dairy, 19 BRBS 106 (1986). 

Tuesday, February 9, 2016

Labor & Employment Law: Fifth Circuit Takes Another Jab at the NLRB

By Ashley A. Petefish and Nicole Bermel Dunlap

The Fifth Circuit stepped into the ring for another round, knocking down yet another National Labor Relations Board (NLRB) decision that class- and collective-action waivers are unlawful. Recently, in Murphy Oil USA, Inc. v. NLRB, the Fifth Circuit again reversed the NLRB, rejecting the board’s argument that arbitration agreements requiring employees to waive their right to pursue class and collective actions are unlawful. 2015 WL6457613

Previously, the Fifth Circuit, in D.R. Horton, Inc. v. NLRB, reversed the NLRB’s position on this precise issue. D.R. Horton, Inc., v. NLRB, 737 F.3d 344 (5th Cir. 2013). Rather than seeking certiorari review by the United States Supreme Court, the NLRB simply issued its decision in Murphy Oil less than a year later, reaffirming its reasoning and result in D.R. Horton. In Murphy Oil, the NLRB again insisted that the National Labor Relations Act (NLRA) provides a substantive right to engage in collective action and, as such, is a contrary congressional command that precludes application of the Federal Arbitration Act (FAA), thus prohibiting the application of class- and collective-action waivers. 

The Fifth Circuit’s reversal of the NLRB decision in Murphy Oil delivers a hard uppercut to the board. Relying upon its earlier determinations in D.R. Horton that: the NLRA did not contain a congressional command overriding the FAA and that the use of class-action procedures was not a substantive right under the NLRA, the Fifth Circuit simply stated that its decision in D.R. Horton was issued less than two years ago and that the Fifth Circuit would not repeat its analysis. Murphy Oil, 2015 WL6457613, at *3.

Even in the aftermath of the Fifth Circuit’s decision in Murphy Oil decision, the NLRB continues to assert that it is an unfair labor practice for employers to: (1) have employees sign arbitration agreements waiving their right to bring complaints on a class or collective basis, or (2) seek the enforcement of such agreements in any forum. The Fifth’s Circuit’s recent decision and the NLRB’s insistence on its contrary position has labor and employment law practitioners wondering how many rounds this matchup will last before the Supreme Court is given the opportunity to resolve the split between the NLRB and the courts.

In Murphy Oil, the petitioner also requested that the Fifth Circuit sanction the NLRB for its blatant defiance of the Fifth Circuit’s D.R. Horton decision. However, recognizing that the NLRB did not always know which circuit’s law would be applied on a petition for review,* the Fifth Circuit refused to condemn the NLRB’s nonacquiescence with D.R. Horton. Murphy Oil, 2015 WL6457613, at *4. Although the Fifth Circuit’s decision not to sanction the NLRB may appear to give the board the opportunity to bob and weave its argument through the other circuits, the Second, Eighth, Ninth, and Eleventh Circuits have already implicitly or explicitly agreed with the Fifth Circuit’s decision in D.R. Horton. Walthour v. Chipio Windshield Repair, LLC, 745 F.3d 1326, 1336 (11th Cir. 2014), cert. denied 134 S. Ct. 2886 (2014); Richards v. Ernst & Young, LLP, 744 F.3d 1072, 1075 n.3 (9th Cir. 2013); Owen v. Bristol Care, Inc., 702 F.3d 1050, 1053–55 (8th Cir. 2013); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 297 n.8 (2d Cir. 2013). Hopefully, given these circuit court decisions, the NLRB will weigh-in for a final matchup and seek certiorari review by the Supreme Court.

*Note: An employer can seek review of a board decision in the circuit where the unfair labor practice allegedly took place, in the United States Court of Appeals for the District of Columbia, or in any circuit in which it transacts business.  29 U.S.C. § 160(f).

Friday, February 5, 2016

Senior Counsel: The Nuremberg Justice Ministry Trial of 1947

By Thomas Newcomb Hyde

        In 1941, 76-year-old Leo Katzenberg, a prominent Jewish businessman in Nuremberg, Germany, rented an apartment in his house to Irene Seller, a non-Jew who was the 30-year-old daughter of Leo’s non-Jewish friend. Leo, who had rented the apartment to Irene as a favor to his friend, was eventually accused of having a sexual affair with her. While Leo and Irene admitted kissing with Irene on Leo’s lap, an investigator found no evidence of sexual intercourse. Nonetheless, Leo was arrested for race defilement in violation of a 1935 Law for Protection of German Blood forbidding relations between Jews and Aryans. Both Leo and Irene denied the accusations, claiming they were like father and daughter.

        So began the presentation by Second District Court of Appeal Judge Edward LaRose to over 50 people, including 15 judges, at the Senior Counsel Section Luncheon on “The Nuremberg Justice Ministry Trial of 1947” at the Ferguson Law Center. Judge LaRose described how Leo was tried before the Nuremberg Special Court, which had been established in 1933 with jurisdiction over cases involving inciting disobedience of governmental orders, sabotage, and acts contrary to public welfare. Leo’s case was tried by Judge Oswald Rothaug, a rabid Nazi who referred to Leo as “an agent of world Jewry” and a “syphilitic Jew.” In a trial without due process, Leo was convicted and sentenced to death by Judge Rothaug. Leo was beheaded in 1942.

        In the spring of 1945, the victorious Allies organized an International Military Tribunal to try Nazis responsible for the atrocities in Europe. The most famous Nuremberg trials involved Rudolf Hess, Albert Speer, and Herman Goering. But other lesser officials were also tried. In the Nuremberg Justice Ministry Trial of 1947, Judge Rothaug was on trial for convicting and sentencing Leo to death without due process of law. (The story is fictionally recounted in the 1961 film Judgment at Nuremberg with Burt Lancaster in the role of Judge Rothaug and Judy Garland as Irene.)

       Judge Rothaug’s lawyer argued that Rothaug should not be bound by ex post facto laws, that he was just following orders, and that he was bound by legislative acts. The prosecutor pointed out that Rothaug had acquiesced in the Nazification of the judiciary into a political tool for the Nazis. The Special Courts, he added, were not legitimate courts, but a vehicle for suppression of expression whose victims included Jews, Poles, and gypsies. There was no semblance of due process and no appeal.

        Judge LaRose discussed the legacy of the Nuremberg trials and asked difficult questions to ponder: What does the Justice Ministry Trial of 1947 say to us as lawyers and judges in a diverse, pluralistic, and ever-shrinking world beset by violence, prejudice, and inequality? Do we reject the existence of natural law? How do we react to an unjust law? Do we work to repeal it, commit civil disobedience, work to limit its reach, or resign? Should we defer to civil government in the hope that, over time, laws will be just? To what extent do our actions or inaction perpetuate unjust laws?

Wednesday, February 3, 2016

Intellectual Property: Inter Partes Review - You Can Run But You Cannot Hide from Federal Court

By Kathy Wade

        Anyone petitioning for inter partes review (IPR) of patent claims by the U.S. Patent and Trademark Office (PTO) with the intention to bypass federal court should be forewarned: Such action does not circumvent scrutiny by the U.S. Court of Appeals for the Federal Circuit. Under 28 U.S.C. section 1295 (a)(4)(A), the federal circuit has exclusive jurisdiction over appeals from the PTO’s Patent Trial and Appeal Board (PTAB), including jurisdiction over appeals of the PTAB’s final written decisions on IPRs. Belden Inc. v. Berk-Tek LLC, 610 F. App'x 997, 1001 (Fed. Cir. 2015). 

        Although the federal circuit largely rubber-stamped the PTAB’s IPR decisions in 2015, the court did not affirm all. In two appeals, the federal circuit substantively challenged ― and rejected ― the PTAB’s findings. Such action by the federal circuit is noteworthy in light of the substantial deference the court gives to the PTAB’s factual findings.

        In Microsoft Corp. v. Proxyconn, Inc., the federal circuit reversed the PTAB, in part, for the first time in an appeal of an IPR. 789 F.3d 1292, 1308 (Fed. Cir. 2015). Specifically, the court remanded with regards to the PTAB’s claims construction findings. The court first rejected the patent owner’s argument that the broadest reasonable interpretation (BRI) standard of claims construction used by the PTAB should not apply in IPR proceedings. Id. at 1297. The federal circuit held, in a case decided after the parties had fully briefed their appeal, In re Cuozzo Speed Techs., LLC, 793 F.3d 1268 1275-79 (Fed. Cir. 2015), that the PTAB properly adopted the BRI standard. Although the court affirmed the PTAB’s use of the BRI standard, it found the PTAB’s construction of certain terms were unreasonably broad and vacated the board’s unpatentability findings on that ground. Microsoft, 789 F.3d at 1298-99.

        The federal circuit’s second reversal of the PTAB’s factual findings involved an obviousness determination. In Belden Inc. v. Berk-Tec LLC, 610 F. App'x 997, 1005 (Fed. Cir. 2015), the federal circuit rejected the PTAB’s conclusion that two patent claims were not obvious. The PTAB had determined that there was no motivation to combine two prior art references to teach the two claims. The federal circuit disagreed, finding the PTAB had made a series of incorrect factual conclusions and that the undisputed record evidence pointed clearly to a motivation to combine the references. The court did not, however, vacate and remand to the PTAB to make appropriate findings. Instead, the court found the record was sufficient to reverse the board.

        Although Microsoft and Belden teach key lessons on the federal circuit’s legal analyses, they are largely important for their results. They signal that the federal circuit still has the last word on patent claim validity. Practitioners in IPR proceedings would do well to bear in mind that they may still have to litigate in federal court. 

Monday, February 1, 2016

Health Care Law: OCR HIPAA Compliance Audits 2016 - Are You Audit Ready?

By Maja Lacevic

       On September 10, 2015, the Department of Health and Human Services Office of Inspector General (OIG) recommended that the Office for Civil Rights (OCR) strengthen its oversight of covered entities’ compliance with the HIPAA Privacy Rule. U.S. Dept. of Health and Human Servs., OEI-09-10-00510, OCR Should Strengthen Its Oversight of Covered Entities’ Compliance with the HIPAA Privacy Standards (2015). The OIG made the following recommendations to OCR after conducting its study:

  1. Fully implement a permanent audit program;
  2. Maintain complete documentation of corrective action;
  3. Develop an efficient method in its case-tracking system to search for and track covered entities;
  4. Develop a policy requiring OCR staff to check whether covered entities have been previously investigated; and
  5. Continue to expand outreach and education efforts to covered entities. Id. at 11-12.

       In response to the report, OCR agreed with each of OIG’s recommendations and OCR Director, Jocelyn Samuels, announced that in early 2016, OCR will launch Phase 2 of its audit program. Letter from Jocelyn Samuels, Director of OCR, to Daniel R. Levinson, Inspector General of the Dept. of Health and Human Servs. (September 23, 2015). The audit program will measure compliance by covered entities and business associates with HIPAA’s privacy, security, and breach notification requirements through a combination of desk reviews of policies and on-site reviews. Id. Unlike the pilot audits in 2012, which were conducted by a consulting firm that OCR hired, the next round of audits will be performed by OCR staff.

      In anticipation of the upcoming audits and to avoid potential issues, covered entities should assess their preparedness and HIPAA compliance by using the existing protocol and other guidance available on the OCR Health Information Privacy website.

       Additionally, covered entities and business associates should invest time in identifying and closing any HIPAA compliance gaps and ensuring that they have the proper risk analysis, risk management, and breach reporting plans in place. Addressing the following common areas of concern can help with assessing preparedness:

  • Has a risk assessment of the potential risks and vulnerabilities to the confidentiality, integrity, and availability of electronic Protected Health Information been implemented and documented? 45 C.F.R. § 164.308(a)(1)(ii)(A).
  • Is a breach reporting plan in place for responding to breaches of Protected Health Information?
  • Are written policies and procedures in place that address privacy and security standards, and the weaknesses identified in the risk assessment?
  • Is a training program in place with documented training for new staff and existing staff?
  • Is a HIPAA compliant Notice of Privacy Practices provided to patients and is the notice available on the covered entity’s website?
  • Are appropriate agreements in place with business associates?

       In preparation for the OCR audits, covered entities should be able to provide evidence that: (1) a risk analysis assessment has taken place; (2) policies have been adopted to reduce risks and vulnerabilities to a reasonable level; (3) HIPAA training has been conducted; and (4) the notices have been delivered. Having the right supporting documentation in place can go a long way toward helping a covered entity survive an OCR audit, even where operational compliance may not always be one hundred percent.

Thursday, January 28, 2016

Elder Law: Recent Amendment Allows Health Care Surrogates Authority to Act Immediately

By Jacqueline O. Ellett

       You don’t have to be a doctor to know the aging process varies significantly from one person to the next. Some aging individuals are first confronted with a physical disability, while others face cognitive impairment long before experiencing physical ailments. Just as the status of a physical disability may fluctuate, so too may the capacity of a person diagnosed with certain mental conditions, such as dementia. Before the legislature amended section 765.202, Florida Statutes, this past summer, a health care surrogate could not act on behalf of the principal until the principal was determined incapacitated. This hard and fast approach created headaches for those acting on behalf of principals with fluctuating capacity levels because it necessitated a redetermination of incapacity each time a surrogate needed to make a medical decision for the principal.

       But with the recent amendment to section 765.202, which went into effect on October 1, 2015, a principal may now give his or her health care surrogate immediate authority to act even though the principal may still have capacity. In the event a health care surrogate disagrees with a competent principal’s health care decision, the principal’s wishes control the outcome.

       The amended statute also provides that the principal may allow his or her health care surrogate to access and receive a competent principal’s medical records and health care information. This authority may be given to a surrogate exclusively or in conjunction with the power to make health care decisions for a competent principal. Granting the surrogate permission to access this information at all times allows the surrogate to stay apprised of developments in the principal’s condition. Moreover, advancing the principal’s medical information to the surrogate better prepares the surrogate to make difficult health care decisions on behalf of the principal.

       The amendment also benefits a principal who may be faced with navigating new or confusing treatment options. The legislature added a finding to the statute that plainly states that “some competent adults want a health care surrogate to assist them with making medical decisions.” As medical technology and treatments advance, certain principals will greatly benefit from a surrogate’s guidance when trying to determine the best course of action.

       The amended statute includes a sample format to present these options to the principal. It provides that the surrogate does not have authority to access the principal’s health care information or make health care decisions until the principal becomes incapacitated, unless the principal has initialed the box explicitly granting that power. Forms that do not specifically address the ability of a surrogate to access medical information or to make health care decisions for a competent principal effectively require the principal to be incapacitated before the surrogate can act.

       When a client arrives to execute his or her health care surrogate designation, the attorney should be prepared to discuss the options available to the client now. If asked by a client how to proceed with these elections, consider how each power operates in light of the circumstances unique to that client. An open dialogue with your client addressing these factors should guide him or her to an appropriate decision.

Tuesday, January 26, 2016

Diversity Committee: We Are Lawyers. We Know How Much the Wrong Words Matter.

By Cathy Kamm 

       A couple of years ago, a family friend, Tyler Crose, who happens to have Down syndrome, posted something on Facebook that made me cry: “Do. Say. The. R. Word. Me. Cry.” Words are powerful. Words are beautiful. Words hurt. The words Tyler wrote stuck with me and, in part, served as the inspiration for this article. 

       Many people know that I have a brother, John, who also has Down syndrome. John is “lower-functioning” than his friend Tyler, so my family ― most vocally and most often, my mother ― has been John’s voice through the years as we have advocated for his education, services, and quality of life. Although I have always felt confident advocating for John in these areas, discussing the “R-word” has always made me uncomfortable.

       I remember one of the first times ― and the last ― I used the “R-word” to refer to something negatively. I was a young teen, and I will never forget how my dad’s face looked like I had slapped him. He immediately yelled at me that I was to never use that word in that manner again. He didn’t have to explain why. Even though I was using the word just like many others as a common slang term and “didn’t mean to” offend John or the many other people who live with disabilities every day, I did. 

       Tyler is brave. Tyler’s “crusade” to stop the use of the “R-word” leads him to speak up like my dad did when he hears someone say it. I am not brave. Despite the sting I feel when I hear someone use the “R-word” derogatively, I haven’t found the right approach to explain why there are so many better ways to make a point in a way that doesn’t belittle and demean a large population of incredible people. So this is my chance.

       As lawyers, we choose our words carefully. We do it to craft our claims and confront the opposing side’s arguments. We do it to benefit our clients and ourselves. And as lawyers, and more importantly as people, we should make similar choices in our everyday language ― we owe it to ourselves and our profession to be better. I highly doubt most lawyers would think it appropriate to use the “R-word” disparagingly in correspondence, court filings, or oral arguments. There are far better and more appropriate words to convey what you mean. If something is pointless, misguided, or irrelevant ― why not say that?

       We are better than words that insult, upset, and offend others, especially those who often do not have a voice to share how hurtful those words are. People often say they “don’t mean any offense,” but the reality is your words have meaning and cut deep. If you wouldn’t say the “R-word” around someone who has a disability, then I submit that you shouldn’t say it at all. Tyler would be the first to tell you and say it better than I ever could: “Do. Say. The. R. Word. Me. Cry.”

Friday, January 22, 2016

Corporate Counsel: Florida Law Provides Businesses Civil Remedy for Hacking

By Jason Pill

        As splashy headlines of corporate hacking and cybersecurity theft continue to make front-page news, businesses are increasingly focused on protecting their critical digital assets. Legislators have taken note and passed Florida’s Computer Abuse and Data Recovery Act (CADRA), which became effective October 1. §§ 668.801-805, Fla. Stat. CADRA gives Florida businesses a new arrow in their quiver to combat unauthorized computer access by providing a cause of action for the recovery of monetary damages, injunctive relief, and attorneys’ fees.

        The legislature previously attempted to address “computer-related crime” by passing the Florida Computer Crimes Act (FCCA). §§ 815.01-07, Fla. Stat. The FCCA was largely a criminal statute that offered civil relief only after a criminal conviction. Recognizing some of the FCCA’s shortcomings, CADRA creates a cause of action for aggrieved businesses that suffer harm from unauthorized computer access by an individual who does not have access or exceeds his or her access to a business’s computer systems.

         A CADRA violation occurs when an individual “knowingly and with intent to cause harm or loss”: (i) obtains information from a protected computer without authorization, causing resulting harm or loss; (ii) causes the transmission of a program, code, or command to a protected computer without authorization, causing resulting harm or loss; or (iii) traffics in any technological access barrier through which access to a protected computer may be obtained without authorization. § 668.803(1)-(3), Fla. Stat. “Without authorization” means access to a protected computer by someone who is not an “authorized user.” Authorized users can be directors, officers, employees, third-party agents, and other individuals with a business’s express permission to access protected computers. § 668.802(1), Fla. Stat. But this authorization ends upon the business’s revocation of permission by any means.

         Importantly, CADRA’s protections extend only to a “protected computer,” which is defined as a computer that is “used in connection with the operation of a business and stores information, programs, or code in connection with the operation of the business” and “can be accessed only by employing a technological access barrier.” § 668.802(6), Fla. Stat. CADRA provides a non-exhaustive list of “technological access barriers” that must be employed, such as a “password, security code, token, key fob, access device, or similar measure.” Invariably, there will be additional technological measures that fall within this definition under the “similar measures” catchall, but in the absence of judicial guidance, businesses would be wise to rely on one or more of the enumerated “barriers” to ensure CADRA protection.

         In the event of a CADRA violation, a plaintiff may recover actual damages, including lost profits and economic damages, recovery of the violator’s profits, and injunctive relief to prevent further violations and recover stolen information. The prevailing party is entitled to recover reasonable attorneys’ fees.

          CADRA, which serves as yet another piece of the mosaic of legislation aimed at the emerging issue of cybersecurity and digital theft, comes a little over a year after the enactment of Florida’s Information Protection Act of 2014 (FIPA), § 501.171, Florida Statutes. The FIPA heightened the notification requirements for data breaches impacting Florida residents. These new laws reflect an increased emphasis on cybersecurity and are a harbinger of possible, additional legislation designed to protect businesses and consumers from evolving digital threats.

Thursday, January 21, 2016

Military & Veterans Affairs: The Impact of the OPM Data Breach

By Scott G. Johnson

         At some point in their careers, nearly all members of the military file a Standard Form 86 (SF 86) through the Office of Personnel Management (OPM) in order to have their personal backgrounds reviewed before they are granted a security clearance. The SF 86 requests personal information such as the member’s Social Security number, passport information, residence information for 10 years, schools attended, employment history, family member and relative information, foreign contacts and travel, criminal history, use of alcohol and illegal drugs, financial history, and any other associations. Understandably, OPM needs this information to properly assess whether an individual can be trusted with handling information of serious importance to the United States. Unfortunately, in April 2015, the OPM discovered that the background investigations of 4.2 million current and former federal government employees had been stolen by a massive cyber-penetration of OPM’s data files.

         Two months later, OPM revised its estimate upward and concluded that data on up to 1.1 million fingerprints and approximately 21.5 million Social Security numbers from nearly 20 million individuals who applied for background investigations, as well as nearly 2 million non-applicants, was compromised, making it arguably one of the largest security breaches in federal history. While the OPM security breach mainly affected active-duty military personnel, because the security breach was so large, it includes veterans, spouses of active-duty members and veterans, and family members and associates of active-duty military members and veterans, as well as other federal employees.

         Beginning in August 2015, OPM began providing individuals whose personal information had been compromised with instructions on what they needed to do to protect themselves. To its credit, OPM is offering those impacted with three years of credit monitoring, identity monitoring, identity theft insurance, and identity restoration services for themselves and their dependent children under the age of 18 through ID Experts, an identity theft protection company. For some of the services, the affected individual should be automatically enrolled. But some services offered require the person to register at with a PIN the individual should have received from OPM through the mail.  

         Most military members or veterans impacted by this breach likely won’t suffer any damage and will just need to remain vigilant about their cyber identity now that their personal information has been compromised. However, attorneys advising military members, dependents, or veterans who are injured, even if enrolled and benefitting from the identity protection services offered through OPM, should review the Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2671-2680; the Military Claims Act, 10 U.S.C. § 2733; and the Military Personnel and Civilian Employees' Claims Act, 31 U.S.C. § 3721 to determine if the damages the individual suffered could be recovered with a properly filed claim under one of those statutes.

Wednesday, January 20, 2016

Construction Law: The Rippin’ and the Tearin’

By Erin E. Banks and J. Derek Kantaskas

       Last year, the Eleventh Circuit Court of Appeals issued a key opinion in Carithers v. Mid-Continent Casualty Company, 782 F.3d 1240 (11th Cir. 2015), in which the court applied Florida law to determine the scope of coverage available under a post-1986 CGL policy issued by Mid-Continent Casualty Company (Mid-Continent) to a homebuilder, Cronk Duch. The Carithers sued Cronk Duch for the following construction defects: faulty electrical systems, incorrect application of exterior brick coatings, improperly installed tile, and a faulty balcony that permitted extensive water intrusion. Mid-Continent refused to defend defendant Cronk Duch. As a result, the Carithers and Cronk Duch entered into a consent judgment, which assigned Cronk Duch’s rights to the Carithers so the homeowners could pursue the judgment amount from Mid-Continent.

       The Carithers filed an action against Mid-Continent, where the parties ultimately filed cross-motions for summary judgment on the issue of whether Mid-Continent owed a duty to defend Cronk Duch in the underlying, initial litigation. That issue turned on what the proper trigger for determining whether property damage occurred during the policy period. The district court granted summary judgment in favor of the Carithers, finding that the proper “trigger” is the date of the actual damage (“injury-in-fact”), rather than when the damage is discovered or could have been discovered by reasonable inspection, as argued by Mid-Continent (“manifestation”). The Eleventh Circuit affirmed the district court's ruling that Mid-Continent owed a duty to defend. The question of the proper “trigger” on coverage, however, appears to still be in doubt in Florida as the Eleventh Circuit limited its decision “to the facts of this case, and express[ed] no opinion on what the trigger should be where it is difficult (or impossible) to determine when the property was damaged.” Id. at 1247. Simply put, the court held that the district court “did not err in applying the injury-in-fact trigger in this case.” Id. at 1246.

       After the duty to defend determination, the coverage issue was decided following a bench trial.  The trial court found that, among other things, Mid-Continent was liable for the “rip and tear” costs to repair a defectively installed balcony (which was not property damage because it was the defective work of a subcontractor) because the balcony had to be replaced in order to repair damage to the garage (which was property damage). Essentially, the Carithers were entitled to the “rip and tear” damage of the balcony to get to the property damage.

       The Eleventh Circuit held that the district court did not err in awarding damages for the cost of repairing the balcony, finding that under Florida law the Carithers had a right to “the costs of repairing damage caused by the defective work.” Id. at 1249 (citing United States Fire Insurance Co. v. J.S.U.B., 979 So. 2d 871 (Fla. 2008)). The Eleventh Circuit was not persuaded by Mid-Continent’s contention that the Carithers should not be able to recover for any defective work, even where repairing that work is a necessary cost of repairing work for which there is coverage.

       Although Carithers is another decision pointing toward injury-in-fact trigger analysis, litigants will have to rip and tear their way through the next decision to find out for sure.

Monday, January 18, 2016

Modest Means Models and Your Collaborative Practice

By Jeremy Gluckman

        Have you ever considered developing “Modest Means” collaboration models to grow your practice? These models make the collaborative process more accessible to your divorce clients and will increase your collaborative practice. If you are not offering these reduced-cost services, here are four Modest Means Models you may want to consider:

        The Pro Se Collaboration Model provides flat fees that are affordable. A full team in this model has a meeting with the clients to prepare a pro se case. The team meets with the divorcing parties at a single meeting for three to five hours. At the meeting, the team will provide and develop necessary pleadings, parenting plans, and marital settlement agreements for pro se filing. Parties are encouraged to prepare for the meeting by reviewing the necessary documents online before the meeting. The entire team then works through any issues the parties have and helps them complete the relevant pleadings and documents for a pro se filing.

       The Combined Income Model, like the Pro Se Collaboration Model, provides affordable flat fees, but those fees are set for you and other members of the team based upon the combined incomes of the parties. Several income ranges may be identified with different flat fee amounts. For example, if the parties had a combined annual income of $80,000, then they could be offered a flat fee option of $2,000 per attorney and $1,500 for each of the neutrals. Once the appropriate fees are determined, the team spends whatever time is required to complete the case.

        The Combined Limited Time and Income Model is a third flat-fee model. For parties below a specified combined family income level (e.g. $100,000 per year) and net worth (e.g. $125,000), flat fees are set for each of the four members of the collaborative team, with a condition that the collaborative dissolution must be completed by a specific date. You can limit the number of collaborative meetings over the time period, but there are no limitations on the time each collaborative professional will spend to complete the case. If the case is not resolved by the specified date, the team withdraws, or through agreements between team members and the parties, you may add a specific number of additional work hours or a new completion date. The team may also consider hourly rates if the case is worked for an added time period and the team is willing to add those hours.

        The Reduced Fee Rate Model, unlike the other three models, does not involve a flat fee. Instead, hourly rates will be set for all members of the collaborative team, but the hourly rates will be reduced. Several reduced hourly rates can be established based upon varied ranges of income.

         Not all clients have unlimited funds to proceed in a collaborative divorce. So we hope this gives you more options in growing your practice and effectively serving the needs of a broader range of clients.

Thursday, January 14, 2016

Appellate Law: Introducing Mary Beth Kuenzel, Clerk of the Second District Court of Appeal

By Valeria Hendricks

The first clerk of Florida’s Second District Court of Appeal was Joseph Gillen. Some 50 years later, Mary Beth Kuenzel, the cousin of Gillen’s granddaughter, has become the court’s sixth clerk. Although she revealed this bit of history at her induction ceremony, Mary Beth began her remarks on a somber note by recognizing Jim Birkhold's dedicated service and many contributions to the court before his sudden death.

Mary Beth is certainly qualified to lead the court’s clerk’s office. She has served the court for more than 20 years as a staff attorney. She has worked on numerous committees within the court, including its social media and practice preferences committees. Before joining the court, Mary Beth received her bachelor’s degree from FSU and worked for the Florida House of Representatives, where she eventually served as the director of communications in the Speaker's Office. She later attended Stetson University College of Law, graduating in 1993. Mary Beth lives in St. Petersburg with her husband, Kevin, an architect, artist, and attorney (in that order). 

Although Mary Beth has been the clerk for only a short time, she credits the deputy clerks for their helpfulness, professionalism, and great institutional knowledge. Anyone who has practiced before the Second DCA can agree on the unsurpassed quality of the deputy clerks. During that short time, she has already identified two challenges facing the court and how practitioners can help.

The first challenge is the “proper classification of appeals and original proceedings, as they come in the door.” According to Mary Beth, that “determination is made in a vacuum, but it determines many things, from the type of record to filing deadlines.” Mary Beth says appellate lawyers can help the clerk’s office with the initial classification by explaining the basis for jurisdiction by a notice of appeal or petition and by setting forth the pertinent dates if, for example, rendition was tolled.  

The second challenge Mary Beth identified is technology. Technology, of course, is a beneficial tool. But Mary Beth admits that it has made some things more complicated because the clerks are asked to help attorneys and pro se litigants figure out how to do things from an information technology standpoint. “It has also changed expectations about how quickly things should be done,” says Mary Beth. “The appellate court clerks are still in the development process of e-filing, e-records, and easy accessibility. We can receive e-filings, but we’re still sending out paper copies of orders and the like.” Mary Beth also observes, “As we approach electronic viewing of records (and we’re not there yet), appellate lawyers can help the clerk’s office and their clients by ensuring that confidential information is properly noted, redacted, and protected.”

The HCBA’s Appellate Practice Section welcomes Mary Beth Kuenzel as the clerk of the Second District Court of Appeal.

Tuesday, January 12, 2016

Clerk of Court: Moving Forward on Multiple Fronts

By Pat Frank

        This is an exciting time at the clerk’s office. We are moving forward on multiple fronts to provide better service thanks to recent technological enhancements.

        One recent enhancement is the ability to provide attorneys of record the capability of viewing court records remotely. I am proud to say that the Hillsborough Online Viewing of Electronic Records (H.O.V.E.R) System was actually developed in-house by the clerk office IT staff. And we already have well over 600 registered users of the system who have viewed more than 9,000 images. It is our hope that this new system will be useful for attorneys who want to access court records remotely. You can register for the H.O.V.E.R. System by visiting our website at

        Customer service will also be enhanced significantly through the establishment of our new Court Customer Service Center. Our office recently held the grand opening for this Customer Service Center, as well as the Hillsborough County Sheriff’s Office Probation Services Division. Both operations are on the first floor of the George Edgecomb Courthouse. The Customer Service Center represents the consolidation of all of our court-related services in a one-stop location ― no easy task for us to implement, I can assure you. It took several months of hard work to put in place. The new Customer Service Center has more than 30 service windows, as well as a queuing system in place, to make sure that customers get the right clerk representative to assist them. This is a new concept for us, so please be patient as we go through a few growing pains.

        On still another front, the clerk’s office now offers a Property Fraud Alert, a free service to help people protect their property from fraud by monitoring documents, such as deeds and mortgages, recorded in Hillsborough County. According to the FBI, property and mortgage fraud are the fastest-growing white-collar crimes in the country. The Property Fraud Alert is designed to prevent scammers from renting or selling property illegally to an unsuspecting customer, sometimes collecting thousands of dollars in the process. You can register for this service at

        Speaking of our website, and last but certainly not least, the clerk’s office is in the process of redesigning our website ― a massive but necessary task because we have implemented so many online services since our last redesign several years ago.

        These are some of our new initiatives as we continue to modernize the clerk’s office to meet your needs as effectively as possible. There are more coming ― so please stay tuned!

Friday, January 8, 2016

State Attorney's Message: Motions to Dismiss

By Mark A. Ober

       In the interest of judicial economy, the Florida Supreme Court has promulgated Florida Rule of Criminal Procedure 3.190(c)(4), which permits parties to present the undisputed facts of a case to the court for a pre-trial determination of whether the facts support a prima facie case of guilt. Rule 3.190(c)(4) is eminently useful in avoiding trial where the parties agree on the facts but disagree as to how the applicable law pertains to these facts.

        Procedurally, the defendant must: (i) file a written motion outlining all of the facts of the case and (ii) execute an oath that these facts are true. The burden is on the defendant to specifically allege and swear to the undisputed facts in a motion to dismiss. The defendant may not swear that the facts are true and correct “to the best of my knowledge.” The penalty for perjury applies to the sworn motion. The state then must be given the opportunity to demur or traverse that defendant’s motion.

        If the state disagrees with the defendant’s version of the facts or believes that the defendant omitted material facts, the state may file a traverse. If the state files a proper traverse, the court must deny the motion to dismiss. When filing a traverse, the state must deny with specificity the facts contained in the motion or allege with specificity the facts omitted.

        If both parties agree on the material facts of the case but disagree on the application of the law, the state may file a demurrer. This permits the court to determine whether the facts support a prima facie case of guilt. An appropriate case for a demurrer might be where a defendant has been charged with carrying a concealed weapon (e.g., a knife), and the state and defendant agree to the description of the knife, but the defendant argues that the knife is a common pocket knife. The state may demur, agreeing to the dimensions of the knife but maintaining that it is a jury question as to whether the knife and the manner in which it was carried meet the statutory criteria for a weapon. The court may then turn to legal precedent and issue a ruling. A pre-trial ruling on this issue may save the court from trying the case because a ruling against the defendant may trigger a plea, whereas a ruling against the state would terminate the prosecution.

        When considering a defendant’s motion to dismiss charges, all questions and inferences from the facts must be resolved in favor of the state. The trial court is not permitted to make factual determinations or consider either the weight of conflicting evidence or the credibility of the witnesses.

        Pre-trial motion practice can further the interests of justice in an efficient manner. As such, the lawyers in my office are trained to prosecute cases with the utmost regard for expediency and judicial economy, while still seeking justice.

Wednesday, January 6, 2016

Editor's Message: It’s That Time of Year Again

By Ed Comey

By the time you’re reading this, I’m ordinarily well on my way to breaking my New Year’s resolutions. Every year, I make out the same list of (mostly meaningless) resolutions ― I’m going to go the gym, eat healthier, read more, etc. ― only to give up on most of them by mid-January. This year, my wife came up with an idea that was novel to me but probably shouldn’t be: Perhaps I’d actually stick to my resolutions if they were about improving others, not myself. So I followed my wife’s advice and came up with a list of New Year’s resolutions that are focused on others. I thought I’d share two:

Be a Mentor. In the January/February issue of the Lawyer magazine, Judge Perrone wrote a great article about Don Stichter, who was recently presented with the second annual professionalism award by the Thirteenth Judicial Circuit’s Professionalism Committee. Among the many reasons Mr. Stichter deserved the award was the fact that he is universally praised for his formal and informal mentoring of young lawyers throughout the local Bar.

As a law clerk, I am fortunate to have the opportunity to work with a number of extremely talented interns and young lawyers. One of the biggest complaints I hear from them is the lack of mentoring available for young lawyers. Admittedly, I don’t always make time to mentor younger lawyers. It’s easy to get so caught up with my work that I forget to give an intern feedback on an assignment, reach out to a former intern or colleague to see how they’re doing in practice, offer some encouragement and advice to a law student looking for a job, or just listen. But if a legend like Don Stichter can find the time to do it, then I can too. So this year, I’m going to make an effort to be a better mentor to my interns and other young lawyers.

Do Pro Bono or Volunteer. I can hardly open an issue of the Lawyer without coming across a worthy pro bono project or request for volunteers. This issue is no different. Matt Luka has written an excellent article seeking pro bono volunteers for the Clemency Project 2014. And in most issues, the Community Services Committee highlights a way for HCBA members to give back to the community. But despite the glaring need for pro bono assistance and a wealth of opportunities, the sad truth is I have made little effort to volunteer. Of course, I’ve justified my lack of pro bono work by convincing myself it’s not something law clerks can do. In actuality, the Code of Conduct for Judicial Employees does permit law clerks to do certain types of pro bono work. So this year, I’m going to take advantage of at least one of the many pro bono or volunteer opportunities highlighted in the Lawyer.

One of the most common tips for keeping New Year’s resolutions is to share them with others. By sharing two of my resolutions with you, I hope it will force me to actually follow through with them. And perhaps it will give some ideas to others who are trying to come up with their own resolutions. Best wishes for the New Year!

Monday, January 4, 2016

YLD President's Message: Resolve to Get Involved in YLD Activities This Year

By Dara Cooley

        Happy New Year! A change in the calendar always lends itself to a moment of reflection, and as we begin the new year I can’t help but think about — and more importantly appreciate — the hard work and dedication of my fellow YLD board members and the co-chairs on each of our committees. Here’s who they are and what they’ll be up to in 2016:

  • Colleen O’Brien and Web Melton are the YLD board liaisons for the Member Services Committee, which is co-chaired by Ashley Hayes and Jake Hanson. In 2016, the committee will host Coffee at the Courthouse on January 26, a Paddle-Boarding Wellness Event in mid- to late April, and will support the 5k Pro Bono River Run and Pig Roast on March 5.
  • Adam Fernandez and YLD Past President Anthony “Nino” Martino are the YLD board liaisons for the Professionalism and Ethics Committee, which is co-chaired by Lexie Larkin and Nathan Frazier. This committee will host the State Court Trial Seminar in June.
  • Melissa Mora and Brett Metcalf are the YLD board liaisons for the Youth Projects Committee, which is co-chaired by Jamie Meola. The children at A Kids Place will benefit from the Holidays in the New Year event on February 20 at Tampa Grand Prix. The committee will also host Steak-n-Sports Day to benefit underserved children.
  • Tammy Briant and Melissa Mora are the YLD board liaisons for the Long-Range Planning Committee, which is chaired by Lexie Larkin. This committee is drafting proposed changes to the YLD bylaws and developing a membership survey
  • Jason Whittemore and Jeff Wilcox are the YLD board liaisons for the Events Committee, which is co-chaired by Zachary Bayne and Andrew Smith. This committee will host Cornhole for a Cause benefiting Big Brothers Big Sisters in late March.
  • Laura Tanner and Traci Koster are the YLD board liaisons for the Pro Bono Committee, which is co-chaired by Ella Shenhav and Katelyn Desrosiers. This committee will continue the monthly family forms clinic.
  • Amy Nath, Alexandra Haddad, and Maja Lacevic are the YLD board liaisons for the Law-Related Education & Mock Trial Committee, and Clint Morrell and Nicholas Williams co-chair the Simms Mock Trial, which is scheduled to occur in early February. This committee will also host Law Week on May 23.
        Now is also the time to plan for the months ahead! The YLD board already has two membership luncheons scheduled and many other opportunities for young lawyers to become involved. Keep your calendars open and find us on Facebook for event reminders!

Sunday, January 3, 2016

HCBA President's Message: The Path from Service to Leadership: Doing Small Things with Great Love

By Carter Andersen

        Mother Teresa of Calcutta started with nothing and impacted millions of people through service and leadership. How did she do it? We know that Mother Teresa’s work started with one person – Mother Teresa refused to walk past a sick and dying person on a street in Calcutta, and in her own words, she helped just one person. With that start, Mother Teresa’s loving service to the poor eventually grew to a worldwide community of support for the poor, the hungry, the sick, and the homeless. Mother Teresa’s path to being one of the most respected and effective world leaders was grounded in service.

        I met Mother Teresa twice as a teenager (first in 1985 and again 1988), and both times Mother Teresa impacted me powerfully with her example, words, and smile. Mother Teresa spoke about the power and gift of a smile – if you can give nothing else to another person, you can always give them a smile. I think about Mother Teresa’s powerful words almost every day. Mother Teresa’s inspirational teachings can be applied in so many areas of our lives:

In this life we cannot do great things. We can only do small things with great love.

If you can't feed a hundred people, then feed just one.

Do not wait for leaders; do it alone, person to person.

~ Mother Teresa

        Some of the greatest things about our legal community are the acts of service that our colleagues perform, often with little recognition or credit. I want to recognize four of our colleagues for their service and leadership in three very important areas.

        Sacha Dyson, of Thompson, Sizemore, Gonzalez & Hearing, P.A., and Lara LaVoie, of LaVoie & Kaizer, P.A., are currently the co-chairs of the HCBA Community Services Committee. This year, Sacha suggested that in addition to everything else the CSC does, the committee could adopt and lead the HCBA’s efforts to present The Florida Bar Benchmarks programs to the greater Tampa community. In recognition of the important role that attorneys play in adult civics education, The Florida Bar created Benchmarks: Raising the Bar on Civics Education, which provides presentations and activities that attorneys can use to teach adult civic and community groups about the government and the courts. Sacha has coordinated our efforts to train lawyers and to present topics at local libraries and in a series of presentations at USF! Meanwhile, Lara LaVoie and other committee leaders have been out in the community planning and implementing the CSC’s ongoing programs: Adopt a Veteran, Elves for Elders, Dining with Dignity, and a Pirate Plunder Party at A Kid’s Place. Thank you Sacha and Lara for your service and leadership!

        In December at the Federal Bar Association (Tampa Chapter) Annual Meeting, Anne-Leigh Moe was sworn in as president of the chapter. I recall about eight years ago when Anne-Leigh first volunteered to serve on an FBA committee, and I have observed Anne-Leigh’s service to the FBA in many ways throughout the years. One pro bono service opportunity Anne-Leigh took on during this time was a civil rights (Bivens Act) case for a federal prisoner. United States District Judge Virginia Covington presided over the case, and at the annual meeting, Judge Covington presented Anne-Leigh with the FBA Pro Bono Award for Service and Excellence. Anne-Leigh’s path from service to leadership is a great example of the good things lawyers do for our community.

        Kevin Johnson, also with Thompson, Sizemore, Gonzalez & Hearing, P.A., recently led The Florida Bar’s efforts to create the Florida Bar Practice Resource Institute. The PRI was designed to tackle some key challenges that Florida lawyers face on issues related to technology and practice management. Kevin chaired The Florida Bar’s Special Committee on Technology and Office Resources to build a website that would deliver helpful content in five key focus areas: technology, management, marketing, accounting/finance, and new practice. The PRI went live in January 2015 at The site has the most up-to-date information, available in several different formats that the end user can select based on whether he or she prefers to read written answers, listen to a podcast, watch a video, or even interact with a practice-management advisor via live chat. It also features a searchable Knowledge Base that contains multiple tips for working with common office software programs. The Special Committee on Technology and Office Resources is now a standing committee of The Florida Bar, and Kevin is the chair. The committee continues to improve the PRI website as it receives feedback from Florida Bar members. This is a great effort by The Florida Bar to help Florida lawyers, particularly small firms and solo practitioners.

        Sacha, Lara, Anne-Leigh, and Kevin did not act alone in the areas where they serve. They have committee members, board members, or consultants who helped them achieve great things. But they did raise their hands – they did volunteer to serve – and that set them on the path to leadership. I would argue that they each found their path to leadership not by waiting for others to lead but by doing small things with great love – similar to feeding just one person – by serving others.