Friday, May 30, 2014

Professional Conduct: Navigating Ethical Perils Of Social Media Surveillance

By Yvette D. Everhart

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

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

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

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

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

Thursday, May 29, 2014

Real Property: Tax Certificates 101

By Stephanie Adams

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

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

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

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

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

Wednesday, May 28, 2014

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

By Eric E. Ludin

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

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

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

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

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

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

Monday, May 26, 2014

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

By Eliane I. Probasco and Christine L. Derr

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

Record the judgment against real property.

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

Establish a lien against personal property.

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

Take a deposition in aid of execution. 

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

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

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

Thursday, May 22, 2014

Bar Leadership Institute Celebrates Closing Reception

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

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

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

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

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

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

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

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

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

If you'd like to be considered for next year's class, please email bli@hillsbar.com.

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

Wednesday, May 14, 2014

Law Day Luncheon Celebration Marks End To Successful Bar Year

By John F. Kynes

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Here’s hoping everyone has a great summer.

See you around the Chet.

Tuesday, May 13, 2014

Betty Castor Wins Liberty Bell Award

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

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

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

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

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

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

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

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

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

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