Criminal Law: The Clemency Project Needs Your Help

By Matt Luka

       You may have recently read news reports about the release of federal inmates under the president's clemency power. For much of our country's history, the president's clemency power has been exercised sparingly, often reserved for high-profile cases or political favors. Many in the criminal justice system, however, have come to realize that, due in part to the Federal Sentencing Guidelines and strict mandatory minimums, numerous sentences handed down over the past 30 years are unnecessarily harsh and have had a detrimental effect on society. More than a year ago, the Obama administration made an unprecedented request for clemency petitions for inmates who are currently serving a federal sentence and, by operation of law, likely would have received a substantially lower sentence if convicted of the same offense today.

        Thousands of inmates potentially qualify for relief, but most of these inmates cannot afford an attorney. And public defenders' offices simply do not have the budget or resources to handle such an extensive initiative. So pro bono attorneys are needed. Clemency Project 2014 is a national pro bono effort to recruit and train lawyers on how to screen for eligible inmates and represent eligible inmates in the clemency process.

       Representing a client in this initiative does not require a court appearance or even a face-to-face meeting with the client. The primary responsibility of the attorney is to write a memorandum and collect certain records necessary to support the petition. A checklist of the required records, along with sample memoranda, are available. Our Federal Public Defender for the Middle District of Florida is a terrific proponent of this program and has already prescreened cases and can provide step-by-step instructions on how to prepare a petition. If you are interested in pro bono service, this is a manageable and rewarding program that has a predictable time commitment.

        For those wondering why they should spend their time helping a criminal, in order to even qualify for clemency, an inmate must be a non-violent, low-level offender without a significant criminal history who has served at least 10 years of his or her prison sentence. Most of these inmates are drug offenders who have spent more than a decade in prison. To have a second chance at life would mean everything to the inmates and their families. Also, from a purely economic perspective, it costs our country almost $30,000 a year to house one federal inmate.  You do the math.

        Time is of the essence with this initiative because we cannot be certain whether the next president will continue it. The goal is to have petitions submitted no later than March in order to give the government time to review them before President Obama leaves office.

        You need not have handled criminal cases to be eligible or capable of participating in this work. The training program is available on the Internet, so you can complete the program at any time. Clemency Project 2014 staff and volunteers are available to provide resources and guidance to you as you analyze the cases, and the project has developed a toolkit of templates to streamline the process. For those attorneys who currently serve as members in good standing on a Criminal Justice Act Panel, you need not complete the training if you can provide a copy of your CJA appointment letter. Please contact me if you would like more information. To volunteer for this important project, please visit the Clemency Project 2014 website at www.clemencyproject2014.org or email volunteer@clemencyproject2014.org. You can also volunteer at clemencyproject@nacdl.org or contact the Office of the Federal Public Defender for the Middle District of Florida.

State Attorney's Message: The Handling of Baker Acts

By Mark A. Ober


Although the Office of the State Attorney is tasked with a variety of duties, § 27.02, Fla. Stat., it is primarily involved in the prosecution of criminal offenses. Within the mental health arena, our office handles hearings conducted under the Florida Mental Health Act, also known as the Baker Act. § 394.451, Fla. Stat. Baker Act hearings are civil proceedings conducted pursuant to Chapter 394.

Although an individual may seek mental health treatment voluntarily, there are situations where an involuntary examination is appropriate. Involuntary examination and treatment may be sought if: 1) a person has a mental illness and, because of that illness, has refused voluntary treatment or is incapable of making a decision regarding treatment; and 2) there is “a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior,” § 394.463(1), Fla. Stat., or it is likely that the person will suffer from neglect that “poses a real and present threat of substantial harm to his or her well-being.” § 394.463(1)(b)(1), Fla. Stat.

The initial involuntary examination can be initiated by a law enforcement officer, a mental health or medical professional, or through an ex parte order issued by a court and based on sworn testimony. § 394.463(2), Fla. Stat. The patient is then brought to a designated receiving facility for emergency evaluation and short-term treatment. § 394.467(2), Fla. Stat. While at the receiving facility, the patient may choose to seek voluntary treatment or may become stabilized to the point that the patient can be released. If neither of these actions occurs and the patient continues to meet the Baker Act criteria, a petition for involuntary placement must be filed within 72 hours of the patient being admitted. § 394.463(2)(i), Fla. Stat.

Once the petition is filed, the patient is entitled to a hearing within five days. § 394.467(6), Fla. Stat. A magistrate is authorized to conduct this hearing. Id. Because of the liberty interests at stake, the patient has a right to counsel and may be appointed a public defender. § 394.467(4), Fla. Stat. The state attorney is charged with proceeding on the petition as the real party in interest on behalf of the state of Florida. § 394.467(6), Fla. Stat. The state must present clear and convincing evidence that the patient continues to meet Baker Act criteria. See Lischka v. State, 901 So. 2d 1025 (Fla. 1st DCA 2005); Boller v. State, 775 So. 2d 408 (1st DCA 2000); Singletary v. State, 765 So. 2d 180 (Fla. 1st DCA 2000). This includes a determination that there is no less restrictive alternative available. § 394.467(1), Fla. Stat.

The role of the state attorney in a Baker Act hearing is to seek appropriate mental health treatment for members of our community who are in danger or pose a danger to others because of their mental illness. Our office diligently prepares for these hearings and proceeds on cases where we believe that this is the appropriate outcome. At the same time, we comply with the legal processes that protect the due process rights of the patients. Our ultimate goal is always to seek justice and maintain public safety as we litigate these cases.

Real Property Probate & Trust Law: The Essence of a Deadline - Minding Miscellaneous Contract Provisions

By S. Elise Batsel, Derek Larsen-Chaney, and Josh Podolsky

        When drafting a contract, it is not unusual to prioritize the substantive terms at the head of the agreement and to apply less scrutiny to the presumably less consequential provisions that form the tail. Indeed, clients demanding simplicity may grumble at the litany of “miscellaneous” subsections that appear to do little more than add length. Although it is true some terms are “more equal” than others, the omission of certain lesser provisions may create serious problems for clients.

        In Blue Lagoon Development, LLC, v. Maury, 2015 WL 3875437, at *3-4 (Fla. 3d DCA June 24, 2015), the Third District Court of Appeal explained that, while a “time is of the essence” clause need not be expressed in a contract with respect to satisfying monetary requirements, the same is not true regarding non-monetary conditions, regardless of whether a deadline is specified in the contract.

        In Blue Lagoon, Leon Medical Centers agreed to purchase vacant commercial land from Blue Lagoon Development, LLC, conditioned on Blue Lagoon obtaining a rezoning of the parcel by July 31, 2008. The contract did not include a “time is of the essence” clause. On July 16, 2008, the local zoning board approved Blue Lagoon’s application by resolution, which the Miami-Dade Department of Building and Zoning certified and enacted on July 23, 2008. The department's enactment, however, was subject to a 14-day appeal period that expired August 4, 2008 ― four days after the rezoning deadline in the contract.  Id. at *1.

        Meanwhile, on July 11, 2008, Leon purchased an adjacent, less expensive commercial parcel of land and no longer desired Blue Lagoon's parcel. On July 31, 2008, Leon sent a letter to Blue Lagoon terminating the contract purportedly because Blue Lagoon failed to timely obtain a non-appealable rezoning of the parcel. Notwithstanding the pre-deadline approval and the fact that no appeal of the department's enactment ever materialized, the trial court ruled that Leon's termination notice was valid. Id. at *2.

        The Third District reversed the trial court, in part because of the absence of a “time is of the essence” clause, explaining that the mere designation of a particular date for performance of a non-monetary condition does not make that date the essence of the contract absent a showing that reasonable delay would have constituted a material breach or caused significant injury to the party entitled to performance. Id. at *4 (citing Command Sec. Corp. v. Moffa, 84 So. 3d 1097, 1100 (Fla. 4th DCA 201). Here, the Third District may have found off-putting Leon’s hyper-technical and “transparently makeweight” attempt at terminating an otherwise valid but later undesirable contract based on a condition that was, as the court determined, timely performed. Id. at *3. Still, the point is clear: A specified non-monetary condition, i.e., a rezoning deadline, may not necessarily be firm without the express confirmation that time is of the essence. With that point comes a reminder to our clients — miscellaneous non-monetary contract terms are more than mere clutter, and their inclusion or exclusion may have profound effects on what precedes them.

**Note: The contract did not address whether any appeal period affected the approval deadline.

Securities Law: A Tipping Point for Tipping – Criminal Insider Trading Law Remains Unsettled

By John F. Lauro

        Let’s assume that you just played golf with a buddy from college who is a high-ranking sales manager for a publicly traded manufacturing company. Over drinks, he casually mentions that his company is about to sign a major contract with the Chinese government. The next day, you buy thousands of shares of stock in the company, hoping that once this information is released, the stock price will hit the roof.

        Have you committed a federal crime? Well, that may depend on whether you are in New York, San Francisco, or, for that matter, Tampa. As a result of two recent significant U.S. Circuit Court of Appeals decisions, the law of insider trading has become, in a word, muddled.

        The Second Circuit, in a landmark decision, United States v. Newman, 773 F.3d 438 (2nd Cir. 2014), recently turned back an effort by federal prosecutors to go after so-called “remote tippees” who received confidential information without knowing that the tipper who made the disclosure received any personal benefit. The law of insider trading developed from the courts’ interpretation of section 10(b) of the Securities and Exchange Act of 1934, which does not expressly prohibit insider trading. Instead, the law criminalizes the use of any “manipulative or deceptive device or contrivance” in connection with the sale or purchase of securities. Insider trading has been deemed such a fraudulent practice for many years. But what does a prosecutor have to prove to get a conviction for insider trading?

        The Newman court made clear that there are several hurdles in a criminal case, including proof that the tipper received or expected some personal benefit in exchange for the disclosure; that is, something that is “objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature.” Newman, 773 F.3d at 446-47. The tipper must receive something resembling a quid pro quo, and the tippee must know about it. Id.

         Now, enter the Ninth Circuit. In a decision written by Judge Jed Rakoff, sitting by designation (ironically Judge Rakoff sits in the Southern District of New York, which is in the Second Circuit), the court in United States v. Salman, 792 F.3d 1087, 1093 (9th Cir. 2015), held that a mere friendship or family relationship would qualify as a personal benefit to the tipper sufficient to create a breach of fiduciary duty and violation of law. Salman took direct aim at Newman and affirmed a conviction where family members were sharing inside information, but the tipper was otherwise receiving no tangible or pecuniary benefit. Id. at 1092-93.

        So, the exchange of information and trading described above might be alright in New York, but probably not in San Francisco. As far as Tampa, the Eleventh Circuit so far has not weighed in. And the confusion will continue since the Supreme Court denied certiorari in Newman.

Community Services Committee: A Simple Tool for Your Legacy of Justice

By Leslie Schultz-Kin and Kathleen Koch


A military veteran suffering from PTSD faces the loss of his home to foreclosure.

A domestic violence victim and her children desperately seek legal protection from their abuser.

An elderly widower is victimized by financial exploitation.

A grandmother rescues her three grandchildren from neglect and needs to establish formal child custody.

A foster care child has no voice in court and needs representation.

When Tampa's most vulnerable residents seek legal help, they turn to Bay Area Legal Services (BALS), our community's legal aid organization entrusted to advance the causes of the underprivileged. Each year, BALS assists more than 25,000 individuals and families with civil legal matters. The difference BALS makes is significant ― and often lifesaving ― because the legal problems frequently affect the most basic of client needs.

Much as you plan for the future financial security of your family, you can help ensure that BALS serves our community for future generations. Legacy giving options can be surprisingly easy to arrange. The simplest is naming BALS as a beneficiary of your life insurance policy.  Beneficiaries are designated by specific dollar amount or percentage portion of the premium proceeds (so the process can be additive ― no need to drop family members as beneficiaries).  This revocable gift can be coordinated through your employer or financial services company and typically involves a phone call or minutes on a computer. Moreover, gifts by beneficiary designation usually avoid probate.

Of course, there are many options for leaving a legacy, such as naming BALS in your will. This gift may be exempt from the federal estate tax, and the assets remain in your control through your lifetime. Other alternatives include a life income gift that allows you to give an asset while retaining the use of it for life. This gift may provide an immediate partial tax deduction.

Donors who include BALS in estate planning (and notify BALS) become members of the Legacy for Justice Society. The society keeps members up to date on BALS and recognizes donors in annual events.

Remember: It is not necessary to be a certain age, extremely wealthy, or at a particular point in your career to help ensure continued access to justice in our community. You simply need a plan.

Become a champion for justice. For more information, contact Rose Brempong, development director at BALS, at (813) 232-1343 or rbrempong@bals.org. Leave your legacy ― and be the difference between justice for some and justice for all.

Mediation & Arbitration: Ethical and Unethical Threats in Negotiations

By Thomas Newcomb Hyde

Mediators and lawyers looking for guidance on ethical and unethical threats in negotiations should look to the American Bar Association (ABA) Ethical Guidelines for Settlement Negotiations. These guidelines, which explain that the “purpose of settlement negotiations is to arrive at agreements satisfactory to those whom a lawyer represents and consistent with law and relevant rules of professional responsibility,” was intended as a resource to facilitate and promote ethical conduct in settlement negotiations. Ethical Guidelines for Settlement Negotiations, at 2 (Am. Bar Ass’n 2002).

Impermissible Threats

Lawyers may not attempt to negotiate a settlement by extortionate means or by otherwise unlawful or unethical threats. An example of this is a threat “to publicly reveal embarrassing or proprietary information other than through the introduction of admissible evidence in a legal proceeding.” Id. at 49-50. For instance, a “lawyer’s threat to publicize embarrassing photographs of a defendant’s marital infelicities unless the defendant settled an unrelated personal injury action would be a classic instance of criminal extortion.” Charles W. Wolfram, Modern Legal Ethics 715 (West 1986). But whether a lawyer would be permitted to make the same threat in negotiating a settlement in a dissolution of marriage case involving adultery is an open issue. William H. Stolberg & David L. Hirschberg, Extortion: What Your Client Wants, Stolberg & Hershberg, 83 Fla. B.J. 109 (June 2009).

Knowing what constitutes an impermissible threat is important because Florida Rule of Professional Conduct 4-8.3 requires lawyers to inform The Florida Bar if they know that another lawyer has committed an ethical “violation of the Florida Rules of Professional Conduct that raises a substantial question as to that lawyer’s honesty, trustworthiness, or fitness as a lawyer.” R. Regulating Fla. Bar. 4-8.3(a). Even though a lawyer has a duty to report certain unethical conduct, however, “authorities have held that it is unethical for a lawyer to threaten to report another lawyer” to the Bar in order to gain an advantage in a civil lawsuit. Ethical Guidelines for Settlement Negotiations, at 50 (Am. Bar Ass’n 2002). Interestingly, with some exceptions, a lawyer is also not allowed to promise not to report “opposing counsel’s misconduct as a condition of a settlement in contravention of the lawyers reporting obligation.” Id. at 44.

In addition to being a violation of Rule 4-8.4, threats to report a party because of criminal violations may be unlawful. Threatening criminal prosecution sometimes violates criminal law. In particular, section 836.05, Florida Statutes, provides that a person using extortionate threats shall be guilty of a felony. Id. at 50. This would include threats made by a wife’s lawyer to the husband during mediation that he would face problems with the Internal Revenue Service for certain past indiscretions if a settlement could not be reached. Furthermore, such conduct would subject a lawyer to discipline under the Florida Rules of Professional Conduct.

Permissible Threats

Not all threats, however, are prohibited in settlement negotiations. It is permissible, for instance, to threaten to file suit if the opposing party does not settle. A lawyer can also threaten to tax costs that will be incurred in going to trial if the opposing party does not settle. Finally, a party may threaten to introduce into evidence information that is embarrassing to the opposing party, if legally admissible. Ethical Guidelines for Settlement Negotiations, at 50 (Am. Bar Ass’n 2002).

The Ethical Guidelines for Settlement Negotiations can also provide guidance to lawyers and mediators as they resolve other concerns in applying legal ethical principles in their practice.

Marital & Family Law: Difficulties in Imputation of Income

By Paul E. Riffel

        Four recent appellate cases make it clear that it is difficult to impute income to an unemployed or underemployed parent under section 61.30(2)(b), Florida Statutes. In each of the four cases, the appellate court reversed the trial court’s imputation of income. Thompson v. Malicki, 169 So. 3d 271, 272 (Fla. 2d DCA 2015); Dottaviano v. Dottaviano, 170 So. 3d 98, 99 (Fla. 5th DCA 2015); Heard v. Perales, 2015 WL 3609104, at *2 (Fla. 4th DCA June 10, 2015); Broga v. Broga, 166 So. 3d 183, 185-86 (Fla. 1st DCA 2015). How can you present a case for imputed income that will withstand appellate scrutiny?

        The child support statute provides a two-step analysis for imputing income. First, the court will impute income if it is determined that the parent’s underemployment or unemployment was voluntary, unless the court finds a "physical or mental incapacity or other circumstances over which the parent has no control.”§ 61.30(2)(b), Fla. Stat. (2015). Second, if the parent’s underemployment or unemployment is found to be voluntary, the court must move to the much more difficult step of calculating the amount of imputed income. The statute gives some guidance for this step: “the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community if such information is available.” The appellate cases make it clear that detailed findings of fact are required in each area.

        Because of that, be advised that showing past work history and income alone is insufficient to impute income. Broga, 166 So. 3d at 185; Thompson, 169 So. 3d at 272. You must also prove the occupational qualifications of the parent and the prevailing earnings level in the community. The word “community” refers to the area where the parent currently lives, so evidence of jobs outside the area would not meet the statutory criteria. Broga, 166 So. 3d at 186. Also keep in mind that because section 61.30(2)(b)(1)(b) requires that due consideration be given to the parties’ time-sharing schedule, Id. at 187, requiring a parent to relocate for employment will not stand.

        When imputing income for purposes of child support, make sure that you do more than simply show a parent’s work history and income. You also need detailed findings of fact showing the following: (1) the occupational qualifications of the parent (this shows employability); and (2) the fact that there are jobs available in the local community (along with information about what those jobs pay). Providing detailed findings of these facts will help your case withstand appellate scrutiny.

Labor & Employment Law: The Pumpkin Spice Latte Of Employment Cases

By Sara Sanfilippo

        Last month marked the beginning of fall. We have all been awaiting the arrival of cooler temperatures and, of course, pumpkin-spice-flavored everything. But not everything is cooling down. Some things are heating up, including lawsuits claiming violations of the Fair Credit Reporting Act (FCRA).

        Haven’t heard of the FCRA? The FCRA was enacted in 1970 during President Nixon’s administration. Throughout employment history, claims under the FCRA have been scarce. Now, almost half a century later, FCRA lawsuits are spreading across the country like wildfire. These cases are so hot that one has recently made its way to the United States Supreme Court. See Robins v. Spokeo, Inc., 742 F.3d 409 (9th Cir. 2014), cert. granted.

        So what is the FCRA? Among other things, the FCRA requires employers to take important compliance steps before obtaining and using consumer reports to make employment-related decisions such as hiring, promoting, demoting, and terminating.

        What are “consumer reports?” No, not the magazine you consult to compare car features! They can include information from a variety of sources including criminal records, motor vehicle reports, credit checks, reference checks, education verification, employment verification, and professional license or certification verification.

        Adding fuel to the fire, over the past few years, the United States Equal Employment Opportunity Commission has brought numerous lawsuits against employers claiming that their criminal background check and credit check policies disproportionately exclude certain protected class members. See e.g., EEOC v. BMW Mfg. Co., LLC, 2014 WL 5431118 (D.S.C. Dec. 2, 2014); EEOC v. Kaplan Higher Educ. Corp., 748 F.3d 749 (6th Cir. 2014); EEOC v. Freeman, 778 F.3d 463 (4th Cir. 2015). 

        If you are an employer, here is what you need to know to stay out of the heat. (Employers and prospective employers should also review applicable state laws related to consumer reports.) Prior to obtaining a consumer report, employers must provide notice to applicants and employees that they might use information in the report to make employment-related decisions. The notice must be in writing and in a stand-alone document. (The notice cannot be in an employment application. The notice should not contain any information that confuses or detracts from the notice.) Also before the employer can obtain a consumer report, the employee or applicant must provide written authorization. Before taking an adverse employment action based on a consumer report, employers must provide a copy of the consumer report and a written description of consumers’ rights under the FCRA to the applicant or employee.(Additional requirements apply if the only interaction with the employee or applicant is by mail, telephone, or computer.)

        As referenced above, the United States Supreme Court will decide whether plaintiffs who suffer no concrete harm from FCRA violations have Article III standing to invoke the jurisdiction of federal courts. The decision will either extinguish the majority of FCRA lawsuits or spark further FCRA actions. Want whipped cream on that latte? Hope you checked out the oral arguments in this case, set for November 2.