Unauthorized Workers' Compensation Disclosure Violates The ADA

By Anthony V. Cortese

First, welcome back from summer breaks and vacations. This year we have appellate cases pending before the Florida Supreme Court that we will be watching that will dramatically affect everyone in the workers’ compensation arena. Our seminars will follow these cases, as well as other important developments in the field. An important federal court decision regarding application of ADA confidentiality provisions to workers’ compensation information was announced on June 23, with implications for all claimants, adjusters, and employers as will be addressed below.
  
In Shoun v. Best Formed Plastics, 2014 WL2815483 (N.D. Ind. June 23, 2014), the claimant in a workers’ compensation case filed suit against his employer because the employer’s workers’ compensation processing person posted information on her Facebook page about his workers’ compensation and medical conditions that he asserted was injurious. The quote was: “Isn’t (it) amazing how Jimmy experienced a 5 way heart bypass just one month ago and is back to work, especially when you consider George Shoun’s shoulder injury kept him away from work for 11 months and now he is trying to sue us.”

Shoun contended that by putting this on her Facebook page, the processing person violated his ADA right to confidentiality, and the court implied in the decision that this contention was clear. The employer argued that by filing an employment-related lawsuit in state court before this Facebook post was made, he voluntarily publicized his medical condition and could not pursue a suit. The District Court in Indiana did not agree and held the suit for violation of confidentiality provisions could proceed in a separate action in federal court.

The employer then argued that there was no proof of damages due to this Facebook post, and one requirement for such a suit is a tangible injury as a result of the disclosure. The court again did not agree, noting: “Mr. Shoun has alleged that as a result of Ms. Stewart’s actions,‘prospective employers refused to hire him, and he suffered emotional injury,’ both of which have been recognized as tangible injuries under the Act.” Id. (citing Green v. Joy Cone Co., 278 F. Supp. 2d 526, 537 (W.D. Pa. 2003) (explaining “[i]njury-in-fact encompasses both actual damages in the form of emotional, pecuniary, compensative, or otherwise, as well as the presence of a continuing illegal practice”)).

This means that not only the employer but also the carrier and its employees, agents, and representatives have a duty of confidentiality with regard to workers’ compensation information that is actionable if it is violated, in addition to and separate from the underlying workers’ compensation claim and any state employment law claim. It is an important decision for injured workers, employers, carriers, and their attorneys to be aware of with respect to these situations. We will update you on other important decisions as they are announced. 

Introducing The HCBA Securities Law Section

By Jared Perez

We are excited to announce that the Hillsborough County Bar Association launched a Securities Law Section beginning July 1. This is the only section of its kind in the greater Hillsborough and Pinellas County area.

Over the upcoming year, we will hold events such as luncheons and CLE-accredited panel presentations designed to provide learning and networking opportunities for attorneys and other professionals working in all aspects of the securities or financial services industries. The presentations will focus on current issues in the securities litigation, regulatory, enforcement, white-collar, and transactional arenas. 
  
Securities law may seem like a specialized practice area, but its reach is broader than one might imagine. For example, the anti-fraud provisions of Florida’s securities laws apply not only to the purchase or sale of a security but also to “the rendering of any investment advice.” § 517.301, Fla. Stat. That language encompasses traditional broker-dealer and investment adviser activity, but it is broad enough to reach, with some important exceptions, “any commitment of money or property principally induced by a representation that an economic benefit may be derived from such commitment.” Id. As such, commercial litigators and other business practitioners who do not specialize in securities litigation may nevertheless be interested in joining the Securities Section. 

In addition, because of this state’s relatively high population of retirees and elderly people, Floridians are all too often the targets of investment scams like Ponzi schemes. Such scams tout consistent, market-beating returns through stocks, bonds, partnership interests, and more exotic revenue streams. The Securities Law Section plans to work with regulators and practitioners to develop content of interest to practitioners who serve these populations, including financial planners, elder law practitioners, and trusts and estates attorneys. 

No matter your primary practice area, we hope you will take advantage of the opportunities offered by the Securities Law Section, and we welcome your ideas concerning how we may better serve you. Specifically, the Securities Law Section will have as many as three committees. First, the litigation committee will focus on securities litigation, including private securities fraud claims and litigation between investment professionals and their customers. Second, the regulatory committee will focus on enforcement and compliance matters; its members hope to work closely with pertinent regulators, including the Florida Office of Financial Regulation, the Securities and Exchange Commission, and the Financial Industry Regulatory Authority. Third, if there is sufficient interest, the transactional committee will focus on securities transactions, ranging from mergers and acquisitions to private and public offerings. 

Each committee will be responsible for planning and hosting at least one event per Bar year. If you are interested in being a member of the Securities Law Section or serving on a committee, please contact one of the section co-chairs, Jared Perez or Dominique Heller. If you are interested in speaking or presenting at one of our events this year or simply have a substantive topic you would like to learn more about, please let us know. With your help, we look forward to a productive and educational Bar year.

Diversity Committee: The Benefits Of Pro Bono Work

By Victoria Cruz-Garcia

So many times we hear about how pro bono work gives us the benefit of feeling good about what we do and provides us with an opportunity to explore a new area of law. The truth of the matter is that very seldom do lawyers want to venture out of their comfort zone, preferring to take on pro bono cases in their areas of practice. Their reasoning makes sense. First, if they know what they are doing, they can obtain better results for the client. Second, if they are well versed in the area of law, the resolution of the case will take less time, which will allow the lawyer to get back to his or her billable work sooner. However, for those who take a chance and actually venture out of their comfort zone, the rewards are many.

Imagine that you are a 20-year-old single mom. When you were 14, you moved to another home to live with your mother and new stepfather. You were then raped repeatedly by your stepfather until you got pregnant. At 15, you gave birth to a boy as a result of this rape. Once the baby was born, DNA supported what you knew all along, that your stepfather was the child’s biological father. Your stepfather was arrested and took a plea deal. He was sentenced to serve five years in prison, but his parental rights were not terminated. You moved to another county, determined to put this behind you. Four years later, you learned that in less than a year, your stepfather is scheduled to be released and has already boasted to family members that, when he is released, he desires to come and visit his only son. He has told everyone in your family that he fully intends to exercise his parental rights. You are desperately seeking an attorney but cannot afford one. You need a legal advocate to come in and move to terminate the parental rights of your rapist so that you can move on and your son will never know how he was conceived, but instead how much you love him.

Sound a bit extreme? Not really; this was one of my recent pro bono cases. Knowing very little about juvenile dependency, every document, hearing, and process was a challenge. One of the most satisfying days of my career was when I heard the judge state in open court that it was in the manifest best interests of the minor child to terminate the parental rights of my client’s rapist. As my client and I walked down the courthouse hall beaming, while others just casually looked at us, I thought: If every lawyer actually knew what a difference this decision made in my client’s life, everyone would take on a pro bono case today!

Not only will the work be satisfactory, but also through your work and dedication to causes that you believe in, you will have the opportunity to meet judges and lawyers in a different area of law who may assist with your own practice in the future.

State Attorney's Message: Juvenile Drug Court

By Mark A. Ober

When a child becomes involved with drugs, it can have a ripple effect throughout many lives. School, friends, and family are all negatively impacted. The future of the child is at risk. The child may even be caught committing crimes. This can be an opportunity to intervene and make a positive impact.

There are currently over 2,600 drug courts operating in the United States. The first drug court was created in 1989.  Drug courts combine drug treatment with court monitoring and intervention in an attempt to reduce recidivism. Although more than half of the drug courts are designed for adults, there are drug courts serving juveniles as well.  Juvenile drug courts are based on the same model as adult drug courts. The drug court model combines treatment with court monitoring.

In 1996, Hillsborough County established a Juvenile Drug Court. This program was the first of its kind in Florida. It is a diversion program; if a juvenile successfully completes the program, the charges are dismissed. A juvenile may be eligible for drug court if he or she has committed a drug-related offense or if the juvenile has a history of substance abuse. Juveniles may be referred to Juvenile Drug Court by the Juvenile Assessment Center, the Hillsborough County School District, the Juvenile Arbitration Program, or when they appear before a regular juvenile division judge.

The Juvenile Drug Court program is usually 12 months long, but this can vary based on the treatment needs of the juvenile. Upon entering drug court, the juvenile will complete a contract that sets forth the requirements expected of the juvenile while in drug court. The juvenile is required to participate in treatment, submit to random urine tests, and abstain from using drugs or alcohol. A juvenile participating in drug court is expected to work toward additional positive goals that will help sustain the juvenile’s sobriety. This includes attending school or maintaining full-time employment.

The court monitors ongoing compliance with regular court hearings. During those court hearings, the court is updated on the juvenile’s progress. The court provides positive feedback to those juveniles who are complying with the program. Although failure to comply with the requirements of drug court can result in the juvenile being terminated from the program, the court also has the option of imposing less severe and more immediate consequences, such as a finding of contempt. The use of these lesser sanctions is intended to hold the juvenile accountable and provide an incentive to make positive behavioral changes while in the program.

The ultimate goal of the Juvenile Drug Court is to create a safer community. By combining drug treatment with a program of personal accountability, drug courts can reduce recidivism. As your state attorney, my goal is to protect the citizens of Hillsborough County.  

Second DCA Judicial Nominating Commission - Notice of Accepting Judicial Applications

CONTACT: Lara J. Tibbals, Chair,
Florida Second District Court of Appeal Judicial Nominating Commission
TELEPHONE: (813) 222-8501

The Second District Court of Appeal Judicial Nominating Commission announces two vacancies due to the creation of two new judgeships by the Florida Legislature. The Judicial Nominating Commission has been asked to provide Governor Rick Scott with nominees for the two vacancies.

Qualifications of Applicants:

Applicants must be residents of the territorial jurisdiction of the Court at the time he or she would assume office, electors of the State of Florida and members of The Florida Bar for the preceding ten (10) years.

Instructions for Submission:

1. Current Judicial Applications must be used and can be downloaded in Word version from The Florida Bar’s website.

2. The completed application must be typed and bound. The inclusion of a photograph is encouraged.

3. In addition to the original application, applicants must provide the following: (i) ten copies of the original application, (ii) one electronic copy of the original application on a flash drive in PDF format; and (iii) one printed redacted copy excluding all exempt information under Chapter 119 of the Florida Statutes or other applicable public records law. All printed copies should be two-sided.

4. The completed application, attachments and flash drive must be delivered to Lara J. Tibbals, Chair, Second District Court of Appeal Judicial Nominating Commission, 101 E. Kennedy Blvd., Suite 3700, Tampa, Florida 33602.

5. The deadline for submission of the completed application is 5:00 p.m., Monday, September 29, 2014. Applications submitted after the deadline will not be considered.

Additional Information:

After the deadline for submitting applications, the Commission will determine which applicants to interview. Applicants will be contacted to confirm the date, time and location.

All proceedings of the Commission are open to the public, except for deliberations. Applicants should not expect their applications to be kept confidential.

If an applicant is nominated, all materials attached to the original application will be submitted to the Governor.

A list of members of the Second District Court of Appeal Judicial Nominating Commission is available from The Florida Bar’s website.

Members of the bench, the Bar and the public are urged to contact the members of the Commission concerning applicants for judicial positions.

If you have any questions, please call Mrs. Tibbals at (813) 222-8501.

YLD President's Message: Opportunities Available Through The YLD

By Anthony "Nino" Martino

As president of the Young Lawyers Division, I would like to encourage all young lawyers to get more involved professionally and to help us make a difference in Hillsborough County. We have one of the largest and strongest young lawyers divisions in the state, which enables us to provide a wide array of opportunities to not only network with other lawyers and judges but to help the less fortunate in Hillsborough County.

If you are interested in the networking aspect of our bar association, then I encourage you to attend the YLD’s Happy Hours, Quarterly Luncheons, Coffee at the Courthouse, Golf Tournament, Cornhole Tournament, and the YLD’s booth at the Judicial Pig Roast/Food Festival. Coffee at the Courthouse allows young lawyers an opportunity to interact with the judiciary from Hillsborough County in an informal setting, and the Cornhole Tournament is held annually in partnership with Big Brothers Big Sisters to raise funds and awareness for the group’s programs in the local community.

If you prefer programs designed to help you grow professionally, then you may be interested in our Judicial Shadowing Program, State Court Trial Seminar, or the 13th Circuit Mentoring Program. Judicial Shadowing provides the opportunity for young lawyers to shadow judges through trials and proceedings while receiving mentoring directly from the bench. The State Court Trial Seminar focuses on trial practice/skills and is presented by many top trial attorneys in Hillsborough County. The mentoring program provides young lawyers with meaningful access to experienced lawyers for guidance.

If you would like to give back to our community, then I recommend Wills for Heroes, the Attorney Ad Litem Program, Family Forms Clinic, Holidays in January, Steak and Sports Day, Luncheon Program at Rampello Downtown Partnership School, Law Week and the High School Mock Trial Competition. Holidays in January brings together foster children, foster parents, and young lawyers in the Tampa Bay area for a fun-filled day of activities and holiday gift-giving. During Law Week, the YLD offers tours of the courthouse, mock trials, and classroom speaking engagements for the children of Hillsborough County. Steak and Sports Day is a day of grilling and outdoor fun with local abandoned, abused, neglected, and orphaned children.

YLD members not only attend but help plan these projects and events, so if you would like to assist, please join one of our committees. Our events can always use more volunteers and new faces as we continue to enhance our programming. For more information, go to the YLD link found at www.hillsbar.com or visit our Facebook page. We look forward to your involvement in the YLD as we continue our tradition of making a difference in Hillsborough County!

Please note the upcoming annual Golf Tournament in October. We expect a full field as we have had in the past, so make sure to get your registration in and take advantage of the early-bird discount. The tournament is open to lawyers and non-lawyers, so encourage your shareholders, colleagues, clients, and friends to join us on the course.

As the incoming president, I am excited to continue the YLD events that have defined our organization over the years, as well as enhance their reach.  However, the extent of our reach is limited only by the participation of our members.  

Criminal Law: A Freedom-Destroying Cocktail - Uncorroborated Anonymous Tips

By Joseph A. Eustace

When man bites dog, it’s news. See Bartlett's Familiar Quotations 554 (Justin Kaplin ed., Boston, London, and Toronto: Little, Brown 16th ed.) When Justices Antonin Scalia and Clarence Thomas write opinions on opposite sides of an issue, that’s news, too.

In the recent case of Navarette v. California, 134 S. Ct. 1683 (2014), Justice Scalia dissented from Justice Thomas’ majority opinion upholding an anonymous tip as the basis for a traffic stop and search. Justice Scalia’s dissent — joined by Justices Ginsburg, Sotomayor, and Kagan — harshly criticized the majority’s decision, even referring to it, in classic Scalia-esque style, as a “freedom-destroying cocktail,” consisting of ... “patent falsity.” Id. at 1697.

Navarette arose from an anonymous tip—phoned in by a motorist via 911—claiming that another car had run her off the road. The tipster provided a description of the car but otherwise remained anonymous. The California Highway Patrol responded to the tip but did not corroborate it before stopping the car for suspicion of driving under the influence. While conceding an “anonymous tip alone seldom demonstrates sufficient reliability,” id. at 1688 (quoting Alabama v. White, 496 U.S. 325, 330 (1990)), the court nevertheless upheld the anonymous tip by distinguishing its decision in Florida v. J.L., where the court held an anonymous bare-bones tip “that a young male in a plaid shirt standing at a bus stop was carrying a gun” was not sufficiently reliable to support a search. Id. (contrasting Florida v. J.L., 529 U.S. 266, 268 (2000)).

In his dissent, Justice Scalia principally focused on the fact that the anonymous tip was, in his view, completely uncorroborated by the arresting officer, rightly pointing out that if the officer had observed a single violation of the traffic laws, “this case would not be before us.” Id. at 1696 (citing Whren v. United States, 517 U.S. 806, 810 (1996)). But Justice Scalia saved perhaps his harshest criticism for the majority’s reasoning that the lack of additional suspicious conduct (i.e., corroboration) is “hardly surprising”—and thus “largely irrelevant”—because drunk drivers may drive “more carefully” to avoid detection: “That is not how I understand the influence of alcohol. I subscribe to the more traditional view that the dangers of intoxicated driving are the intoxicant’s impairing effects on the body—effects that no mere act of the will can resist.” Id. at 1697. Scalia concluded: “To prevent and detect murder we do not allow searches without probable cause or targeted Terry stops. We should not do so for drunken driving either.” Id.

This case marks a potentially significant change in Fourth Amendment precedent in Florida. According to Scalia, Navarette lowers the justification necessary for police intrusion. And Florida Fourth Amendment decisions must confirm to Supreme Court pronouncements. Art. I, § 12, Fla. Const. see also Baptiste v. State, 995 So. 2d 285, 296-97 (Fla. 2008) (relying on Florida v. J.L., 529 U. S. 266 (2000) in holding that anonymous tip did not provide reasonable suspicion justifying investigative stop). Thomas and Scalia, however, rarely disagree on such issues, which makes Navarette very unusual and leads one to wonder who was right: Justice Thomas or Justice Scalia.