In This Issue. President s Message News and Updates. The day after Christmas called for some down time with our newest family member.

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1 January 2009 Newsletter of the Martin County Bar Association In This Issue President s Message News and Updates This Month s Calendar of Events The Side Bar Newsletter Published monthly, excluding July, by the Martin County Bar Association as a service to its membership. If you have an article, opinion, news or other information for publication in the SideBar, please call Michelle Katzman at (772) or information to: martincountybarassociation@msn.com The due date for all advertisements, articles and announcements is the 12 th of the month preceding publication. Contact Us: Martin County Bar Association PO Box 2197 Stuart, FL Message From the President Happy New Year! Traditionally the New Year experience includes reminiscing (auld lang syne, anyone?) so as I enjoy parades and bowl games and seven layer dip (yum!), I m spending a few minutes meandering down Memory Lane (I know what you re thinking: Big Surprise. Linda and Memory Lane. Don t judge me. Yet). Anyway, back to the meandering. After graduating from college and before starting law school, I worked pretty regularly as a substitute teacher. Now, as the substitute, I had some freedom in curriculum choices (seriously, are the kids going to tattle that you didn t follow the lesson plans exactly?), and I really enjoyed the kids questions. One year, shortly after Martin Luther King Jr. Day became a federal holiday (but long before it was celebrated as such in every state), I was taking my third grade class to an assembly honoring Dr. King. The 5th graders presentation focused on Dr. King s leadership during the civil rights movement, which for these kids was ancient history. Even for me, born well after Dr. King s assassination (but long before these beautiful children), it wasn t what you would call a lesson in current events. However, as I watched these children reading the inspiring words of the famous I Have a Dream speech, I realized that it absolutely was a lesson in current events. I was seeing children who would grow up knowing Dr. King as a man of quiet strength, a man whose hopes for the future of his country and the changes that faith, hope and love could Continued On Next Page... Voic Line: (772) martincountybarassociation@msn.com Website: MCBA Executive Board: President: Linda Weiksnar Vice President: Scott Konopka Treasurer: Preethi Sekharan Secretary: Shaun Plymale Immediate Past President: Honorable Alan O. Forst The day after Christmas called for some down time with our newest family member.

2 Continued From Previous Page... bring would inspire people for decades after his death. These children were our next best hope for a country where a man would in fact be judged by the content of his character rather than the color of his skin. Naturally, this was a Lady Hallmark moment good thing elementary schools believe in keeping tissues in every room! Later that year I set off for law school in Washington D.C., where I had many wonderful adventures (some of which you have read about in these very pages!) While I lived in D.C., I went to the inaugurations (just the swearing in parts- I was a poor law school student at the time) of two of our presidents. On the morning of the swearing in of one of these gentlemen, I called a friend to see if he wanted to go to the event with me. Even though neither of us had supported this candidate, he was about to become our president, and I thought it would be cool to be at the Swearing In and soak up the atmosphere. My friend told me that he had a terrible headache and couldn t come with me. When I asked if he had taken something for it, he told me the only thing for it was time. Concerned, I asked how long he would be suffering...he promptly answered, at least four years, maybe eight. Still makes me laugh. In a few short days, we ll celebrate the birthday of Dr. King, and the very next day inaugurate our new president. I mention this not because I think you haven t already figured out the proximity of these events to each other, not because I think you haven t already heard plenty of talk about how the new president is the fulfillment of King s dreams for America, and not because I think you don t understand that this inauguration is historic (really, aren t they all?). I mention it because, whether you voted for him or not, this change seems bigger, somehow, than the previous changes in administrations. This change is a huge step for our nation, reminding us that all men are, in fact, created equal. It shows an understanding that, as Dr. King stated more than 40 years ago, We may have all come on different ships, but we re in the same boat now. And it reminds me that those children from that long ago assembly are now grown they are voters! and they have fulfilled the promise of that far off day. I am not saying that this one election has resolved all the problems our nations faces the economic news shows that GREED is still a big problem for us but it tells me that we have gotten to a place where there s more to the analysis than skin color and party line. And that gives me guess what! hope. So, as the New Year comes (Chinese New Year is January 26 Gung Hay Fat Choy!), I realize that I don t have to surrender the warm fuzzy feeling that comes at the holidays. Now, my hope is that along with New Year s resolutions, along with the ceremonial changing of the calendar (what? You don t do that at your house?), we can all look with optimism and anticipation to the events this month will bring, and that the changes wrought by the voters two months ago will allow us to finally, really give peace a chance. And don t forget to recycle those champagne bottles! Any article appearing herein may be reproduced provided credit is given both to the SideBar and the author of the article. Views and conclusions expressed in articles and ads herein are those of the authors or advertisers and not necessarily those of the officers, directors, or staff of the Martin County Bar Association. Further, the Martin County Bar Association and staff do not endorse any product or service advertised. All advertising is subject to approval. We regret any errors or omissions and such, if applicable, will be noted in future issues. Professional photographs shown throughout this issue of the SideBar have been provided compliments of Abbey Portrait Studio. Law Office Of Stephen M. Lewen Social Security Disability & Supreme Court Certified Circuit Civil Mediator 2646 SW Mapp Road - Suite 206 Palm City, FL Telephone: Fax: lewenlaw@aol.com 2

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4 Family Law Committee The MCBA is pleased announce the Karen L Johnson has agreed to Chair the Family Law Committee in Look for details regarding up-coming programming in the February issue of the SideBar. Our many thanks to Joseph Gufford for his outstanding job as the 2008 Family Law Committee Chair. Information regarding future meetings of the Family Law Committee will be sent by . If you are not on the distribution list, please your contact information to martincountybarassociation@msn.com. Professional Committee George W. Bush, Jr., Esq., Chair Pro Bono Committee Jane L. Cornett, Esq., Chair I f y o u a r e i n t e r e s t e d in volunteering for pro bono cases and/or for more information on this committee, please contact Jane Cornett by phone at or , jlc@cgrelaw.com. Request For Photos George W. Bush, Jr. The Judicial Relations Committee and the Professionalism Committee are jointly working on the creation of Standards of Professional Conduct for the Courts in Martin County and potentially for the entire Nineteenth Judicial Circuit. We are looking to fill our Photo Gallery! If you have any photos taken at any MCBA past event or if you take them at future events, please forward via to: martincountybarassociation@msn.com. Richard H. Levenstein Anyone interested in working on this project and/or the Committees can contact either Richard H. Levenstein (772) Rlevenstein@KSLattorneys.com, Co-Chair of the Judicial Relations Committee, or George Bush (772) Gwbush@foxwackeen.com, Chair of the Professionalism Committee. Interested in Advertising or Sponsoring a MCBA Event? Call Michelle Katzman at or visit our website at for more information. Honorable Jack S. Cox Participation of our membership is encouraged and welcomed with respect to this most important project. Judicial Relations Committee Richard H. Levenstein and Honorable Jack S. Cox, Co-Chairs Ordinance Adoptions From the Martin County Board Of County Commissioners Please visit then click on Martin County Codes for an updated list of approved ordinances. Office Administrator/Office Manager s Monthly Meeting Meetings are held once a month at the offices of Crary, Buchanan, et al. for lunch and an exchange of ideas. Please contact Jim Menendez at for more information. Visit the Website of the Florida s 19th Judicial Circuit for notices, updates and information. We have a link on our website (Resources For the Public) or go directly to: Please check the MCBA website for updated information between issues of The SideBar. 4

5 Bankruptcy Committee - Jon L. Martin, Chair FLORIDA BANKRUPTCY JUDGE SANCTIONS LAW FIRM $90,000 FOR CARELESS ACCOUNTING Junk fees have become a way of life for lenders. Wells Fargo and the law firm representing it were jointly sanctioned, to the tune of $90,000 (jointly and severally) by a Southern District of Florida Bankruptcy Judge for attempting to collect these fees from a debtor post bankruptcy. This is just the latest in a movement to curtail abusive lender practices through-out the country, and sends a warning that He who has the gold does not always Make the rules. Need more information? Join the BK Committee! For information regarding any of the following Bankruptcy Meetings, please contact me at: jlm@jonlmartinlaw.com Meeting Date Location TMA Luncheon Banking Outlook for 2009 January 8 University Club Riverplace Tower Jacksonville, FL. NACBA Capitol Hill Meeting February 9-10 Hyatt Regency Washington on Capitol Hill Washington, D.C. TMA / Distressed Investing Conference January Bellagio Hotel Las Vegas, NV. Next Martin County Bar Association s January 22 Manero s Restaurant in Palm City, Florida. Bankruptcy Committee Meeting National Association of Consumer Bankruptcy Attorneys (NACBA) 17 th Annual Convention May RSVP Required Chicago, IL RED CROSS DISTANCE FOR DISASTER RUNNERS TO RACE IN HONOR AND MEMORY OF PROMINENT STUART ATTORNEY MICHAEL J. MCHALE The American Red Cross Martin County Chapter has announced that the upcoming Distance for Disaster Marathon will be run in honor and memory of Stuart maritime attorney Michael John McHale, an avid marathon runner and triathlon competitor. On May 3, 2009 runners representing the American Red Cross Martin County Chapter will take part in the Distance For Disaster - Avenue of the Giants Marathon and 1/2 Marathon, at the Humboldt Redwoods State Park in Weott, California. The Martin County Chapter, which has begun training with Certified Coaches, is seeking additional runners willing to go the Distance for Disaster in attorney Michael McHale s honor and memory. All monies raised from this fundraising event will remain in local coffers to support disaster relief and assistance, as well as educational programs such as the need for and use of automatic external defibrillators and CPR. Distance for Disaster marathon runners, in cooperation with Fleet Feet, will receive coaching as they train throughout Martin County for the upcoming race. McHale was an avid supporter of the Martin County community and along with his wife of four years, Kathryn McHale, an active and a strong supporter of the American Red Cross. To become a runner in the Distance for Disaster marathon or to make a donation to honor Michael McHale, contact Caroline Warburton (772) or specialeventsdir@martinredcross.org for more information. Your Martin County Chapter of the American Red Cross is funded by local dollars. The Chapter receives no Federal, State or local tax funding. To donate your dollars or your time, contact the American Red Cross Martin County Chapter at (772) , www. martinredcross.org or visit the Chapter headquarters at 2750 South Kanner Highway in Stuart. 5

6 In Memory of Our Colleague and Friend Michael J. McHale From Greg Weiss... Just before this year s Marathon of the Palm Beaches, the Martin County Bar Association lost one of its brightest, warmest and most affable members, Michael McHale. I time Mike s passing by the Marathon of the Palm Beaches because running was one of Mike s greatest passions, and this year would have marked Mike s fifth consecutive year running the Marathon of the Palm Beaches. I had the privilege of knowing Mike not only as a professional colleague, but also a good running buddy. Mike s unflappable style combined equal parts boarding school and Merchant Marine, somehow perfectly balancing adjectives like academic and streetwise, articulate and gruff, clean-cut and bushy. The last time I saw Mike, at the November 21, 2008 MCBA Bar Luncheon, Mike was clad in his standard attorney uniform of khakis, blue blazer and Brooks Brothers tie, while talking to Scott Konopka about plans to go surfing the following morning and me about plans to go for a ride on Sunday. I was often struck by this uncanny balance when Mike would blurt out something terribly witty while suffering through the end of a long run or ride. In contrast, Mike s personality had no compromise in its audacity. As an attorney Mike zealously advocated for both his clients and what he believed in with extreme resolve, regardless of whether the client had the capacity to pay the bills. As a runner Mike never backed down from the challenge of running 26.2 miles, regardless of the conditions or his fatigue, and this year even finished his first triathlon. We will all miss Mike s audacity, intelligence, wit and insight, but most of all his joie de vivre. Mike is survived by his wife and fellow MCBA member, Kathy McHale. She thanks the members of the Martin County Bar Association and Judges for the love and support; Michael truly did not know how much he was admired and respected by his peers. From Darren Steele... The bar has lost a great lawyer and great friend. Mike McHale loved life on his own terms more than anyone I ve ever known. He was full of compassion for everyone especially animals. He often stopped traffic to help a turtle across the street. Mike was a brilliant litigator and author. However, his greatest strength may have been his humility and zest for life. Very few people with an LLM in admiralty would also hire themselves out as an able seaman on a tug to New Orleans. Heaven is a more interesting place today because of the arrival of Mike McHale. Continued On Next Page... 6

7 Continued From Previous Page... From John Kops... As Mike McHale s former law partner and constant day-time companion for several years, I have numerous fond recollections of Mike as an attorney and as a friend. Mike the Diner: Mike and I ate lunch together almost every weekday. He loved Thai food. Inevitably, in response to the waiter s query about the degree of spiciness, Mike would tell him Make me cry. The food would be so heavily spiced that the waiter looked on with trepidation. Mike would consume the entire plate in record time, with tears streaming down his face, loving every intensely hot bite. Mike the Office Mate: When Mike and I first started working together, we used an office that consisted of one large room. There was my desk and credenza and one large conference table. Within two days, Mike had covered the formerly pristine conference table with books, papers, files and office supplies, and boxes of files took up every available inch under the table. For some reason, we had at least seven staplers in the office. One day I was looking for a stapler, and asked Mike if he had one. He said that he had all seven on his desk in one pile. Why? Mike explained: I was an only child; I keep all of my toys close at hand. Mike the Attorney: Everyone knows that Mike was one of the most knowledgeable maritime attorneys in the state, if not the entire country. He wrote articles and sections of books for admiralty practitioners. The greatest asset Mike brought to the profession was the honorable and decent manner in which he treated his clients. We were asked to represent one elderly lady, who was making a property damage claim against a vessel. We reviewed the file and determined that proof of the claim would be virtually impossible. Mike sat down across the table from the client and told her forthrightly that the case almost surely could not be won and that the fees and costs probably would exceed the potential recovery. He said: Mrs. X, if you were my beloved Mother, I would tell you the same exact thing -- do not pursue this claim. Of course, she insisted that we proceed, and we did, obtaining for her a minor recovery, only because Mike declined to bill for a substantial amount of time that we had expended on the case. The Martin County Bar and the entire community sorely will miss this gentle, thoughtful and caring man, who combined irreverence with loyalty, idiosyncratic habits with professionalism, humor with brilliance, and committed advocacy with honor. From Portia Scott.. Let me tell you about my sweet, crazy buddy, Mike McHale. First, it was a huge pleasure to know the guy and I love him dearly so I am very biased about him. Mike was, undoubtedly, one of the funniest men I have ever known and, probably, the smartest, except, of course, when he chose to do something heartbreakingly stupid. I first met Mike when he was covering a UMC final hearing on one of C. Norris Tilton s divorce cases with me on the other side. A point came up where the judge was not going to approve the agreement we had unless Mike used certain magic language at the final hearing. Since Mike knew Maritime like no tomorrow but Jack about Matrimonial law, he didn t use the magic language. I piped up and suggested that what Mr. McHale meant to say was insert magic language here, which was just plain gibberish to Mike. The judge nodded and, turning to Mike asked if that, indeed, was what he was saying. Mike looked at me, a complete stranger nodding madly at him, decided to trust me and said that, yes, that was exactly what he trying to say. That describes him best: a decent man, a great sport, an ethical attorney who expected the same from others. I also have no doubt whatsoever that had I actually been dishonest with him, I would have suffered miserably for it. He was quick to love, quicker to laugh, excellent with advice and, for all the amazing things he accomplished in his obscenely short life, humble. I feel cheated by his death: I expected to have him in my life for another 30 years. I didn t get enough of him and neither did anyone else. 7

8 8 The Side Bar - January 2009 Labor and Employment Law Committee Honorable Alan Orantes Forst, MCBA Committee Chair and Florida Bar s Labor and Employment Law Section An Exciting Time to Be an L&E Attorney! In late 1998, I moved from Washington D.C. to Stuart, Florida and commenced my first job with a law firm (Crary Buchanan). For most of the previous 13 years, I had served in policy and counsel positions at Federal agencies such as the EEOC, Wage and Hour Administration, OFCCP and the Merit Systems Protection Board. I had a front row view to debates about affirmative action, UGESP, sexual harassment, FMLA, pay docking, and reasonable accommodation of the disabled, among many hot issues. The most active period in my memory was during the George H.W. Bush Administration, when Congress passed the ADA and Civil Rights Restoration Act and began debating the FMLA, the Supreme Court issued its decision in Communications Workers of America vs. Beck (ruling that unions could not force workers to pay for activities unrelated to collective bargaining or contract negotiations -- in other words, union lobbying or campaigning they disagreed with), and, as a result of the Clarence Thomas confirmation hearings, sexual harassment charges became increasingly prevalent. It was a really interesting time to be a labor and employment law attorney and, in fact, membership in the Florida Bar s Labor and Employment Section and attendance at our seminars significantly increased during the first several years of the 1990 s. With the election of Barack Obama and the Democratic gains in both the House and Senate, it appears that the coming couple of years may be an especially busy period of change in labor and employment law. From an employer s perspective, a hit song from 1991 may come to mind Gonna Make You Sweat. The changes to labor and employment law will be coming from a number of directions: new laws and/or changes to existing laws coming from Congress; new and amended regulations; shifts in enforcement strategies; the usual reversal of precedent by a recomposed NLRB; and a change to the Department of Justice s litigation positions. For years, I ve joked that we should change the name of our section to the Employment and Labor Law Section, as there is relatively little work for traditional labor law attorneys. That may soon change, in light of the proposed Employee Fair Choice Act (EFCA), as well as the RESPECT Act and the Patriot Employer Act. Under EFCA, for union organizing elections, the legislation would replace the secret ballot with a system of card checks, where union organizers would ask (or pressure, per opponents of the legislation) workers to publicly sign a card stating they want to join a union. For the time being, it is worth mentioning that EFCA has already taken center stage as the most controversial piece of proposed legislation, with some pundits warning the Presidentelect that choosing to push EFCA early in his administration could prove as divisive and damaging as gays in the military proved to be for the last Democratic President. In fact, the Senate minority leader, while pledging to work with the new President, warned that we ll do everything we can to see that [EFCA] never becomes law. Nonetheless, EFCA is at the top of organized labor s wish list, and will likely be introduced in Congress, later if not sooner. One piece of legislation that is sure to see the light of day is the Lilly Ledbetter Fair Pay Act. The basic proposal addresses the Supreme Court s decision in Ledbetter v. Goodyear (2007) and deals with the issue of statute of limitations in compensation discrimination claims. However, there are discussions about using this legislation to make substantive changes to the Equal Pay Act and to even revive discussions about comparable worth. I was at a think tank, fresh out of law school, the last time comparable worth was given serious consideration. I m not going to say that was a long time ago, but I will note that Duran Duran ruled the airwaves, Roger Moore was still playing James Bond, and I was really young (so, I guess it was a long time ago!). It is definitely an interesting concept, though I question whether the current economic climate would be a good time for any serious proposal. Another near certainty is that there will be changes and/or additions to the FMLA. Employers with less than 50 employees need take note, as will employers with part-time employees not currently covered by the Act. The universe of covered employers and employees will most likely expand, and the circumstances for which FMLA Continued On Next Page...

9 Continued From Previous Page... leave must be offered will also grow. Moreover, some of this leave will have to be paid leave, under the Healthy Families Act which was proposed in the current Congressional term by Senator Kennedy. There was also a proposed Working Families Flexibility Act, which would provide employees with an annual right to apply to their employer for a modification of the employee s work hours, schedule, or work location. I ve always found the FMLA to be a fascinating law, with substantial pros and cons, and it will be interesting to see the end result of the legislative debates and regulatory initiatives. The universe of protected classes would expand if the long-discussed Employment Non-Discrimination Act (ENDA) was enacted. This legislation covers discrimination based on gender identity/sexual orientation. There may also be changes to the existing nondiscrimination laws, including the caps on damages that are a part of the Civil Rights Act of It took the Bush Administration four years to enact new FLSA regulations that addressed the exemptions to the minimum wage and overtime provisions of the Act. It is likely that further changes will be made, including a change to the minimum salary provisions of the exemptions. Although EFCA is getting the lion s share of attention from L&E attorneys, there are several other elephants in the room that are part of the L&E universe. One issue that may be put on the back burner in 2009, but must ultimately be addressed, is the employment of illegal immigrants. The Bush Administration has stepped up enforcement in that area and it remains to be seen how the Obama Administration will act. Two issues that will help define the new President and Congress is worker health insurance coverage requirements, and pension and retirement benefits protection plans. These issues demand and will receive immediate attention. Since January 1993, I have spent 12 years at the Merit Systems Protection Board and the Florida Unemployment Appeals Commission. Thus, I am curious as to the reforms planned for Federal employment laws and the unemployment regime. President-elect Obama received solid support from Federal employee unions and Federal employees in general, and it is likely that Federal employee unions will be strengthened and workplace protections extended to agencies and employees currently not covered. There have also been discussions about new Federal mandates being imposed on State unemployment programs. In any case, this past year has been a record breaker for unemployment claims, hearings, and appeals to the Unemployment Appeals Commission and every projection I ve seen indicates more of the same in the coming year. In addition to the unemployment laws, there will be other laws that are addressed due to the current economic situation. The WARN Act (requiring notice of plant closings) will likely be examined and perhaps expanded. Additionally, there will be labor and employment law issues that crop up in connection with the new administration s economic recovery plan and with the push for clean and green jobs and workplaces. I m not sure we ll see the return of ergonomics regulations (it is hard to believe that this was the hot employment law issue eight years ago), but you can bet that OSHA issues will eventually make their way into the news and OSHA enforcement under the new administration will likely differ from that of the past eight years. Much of the preceding presentation was based on my notes taken while listening to a panel discussion of L&E issues in the new administration at the recent Federalist Society national convention. One of the panelists, Bill Kilberg, has been enlisted to present a CLE seminar on this same topic at the Labor and Employment Law Section s initial teleconference/webcast, broadcast live at noon on January 13. You can find more information regarding this teleconference at the Section s website, Mr. Kilberg has been named as one of the top ten L&E attorneys in the country and he is a former Solicitor of Labor. The Labor and Employment Law Section will be presenting a program of monthly webcasts covering subjects such as EFCA, the ADA Revisions, FMLA, and FLSA exemptions. The details are set forth at the Section s website. The year ahead appears to be very busy and very challenging for L&E practitioners (and their clients!). It also appears that the next couple of years may prove to be a very memorable period that changes L&E law and practice in a very significant way. Buckle up! 9

10 Law Library Committee Eric Buetens The Law Library Committee, using funds provided by the Martin County Bar Association, has the audiotape/cd sets listed below available for free to Martin County Bar Members at the Law Library in the Courthouse. Credit hours may be reported online or by scan forms provided by the Library. Short sets (such as the Ethics only) may be checked out for one week; longer sets (8 + credits) may be checked out for two weeks (although the sooner returned, the better). Martin County Bar Members can earn CLE credits and stay up to date on the state of the law. Stop by the Law Library to take advantage of this Martin County Bar Member benefit. The Law Library is open Mon & Tues 9:00am-4:55pm and Wed & Thurs 9:00am-1:30pm. AVAILABLE FLORIDA BAR CLE AUDIOTAPES/CD S Newly Arrived CD Seminar: FLSA. FMLA. GINA. ADEA - It s all Alphabet Soup: Emerging Issues for Today s Employment Law Practitioner - 8 credits - 1 ethics credit - expires 3/12/2010 Topics: 1. Family and Medical Leave Act Guidelines and Tips for drafting Employee Handbooks and Policies; 2. New Genetic Information Nondiscrimination Act (GINA) Law discussion; 3. Fair Labor Standards Act Certification and Decertification; 4. Age Discrimination in Employment Act / Older Workers Benefit Protection Act Update; 5. Statutory & Professional obligations in filing Fair Labor Standards Act Attorney Fee petitions; 6. Changing of the guard: Wage-hour issues at the end of the Bush administration. Shifting Focus: Dealing with Paternity and Dependency Issues in Your Family Law Practice - 7 credits - 0 ethics credit - expires 3/18/2010 Florida Law Update credits - 1 ethics credit - expires 12/19/2009 Fundamentals of Elder Law II - 8 credits - 1 ethics credit - expires 10/10/2009 Civil Trial Certification Review Course credits - 2 ethics credit - expires 8/11/2009 Strategies for Smart Growth and Development - 7 credits - 1 ethics credit - expires 5/30/2009 What it cost to Be Mine - An Overview of Marital Agreements credits - expires 4/4/2009 Florida Bar Dispute Resolution Center Audiotapes: Mediation CME Tapes: 13th Annual Dispute Resolution Center Conference To check on tape availability or rental charges call the Law Library, Questions or Comments call Eric Buetens Legal Food Frenzy Coming in Spring 2009 Legal Community Competes to Raise Food for the Hungry with The Treasure Coast Food Bank Hear ye! Hear ye! Calling all law firms, legal departments, and law students to compete this Spring in the First Annual Legal Feeding Frenzy. The event is a benevolent competition among Treasure Coast and Okeechobee Law Firms to raise food and funds for the Treasure Coast Food Bank during a traditionally slow period for donations. Modeled after a highly successful regional event in Virginia and sponsored by the Norfolk and Portsmouth Bar Association, plans are brewing to bring together the local legal community to partner with Treasure Coast Food Bank to feed our hungry neighbors. Look for more in January on how to get involved! About Treasure Coast Food Bank The TREASURE COAST FOOD BANK (TCFB) collects and stores food and grocery products that have been donated by local retailers, wholesalers, distributors, manufacturers, and others in the food industry. These products are then distributed to more than 160 non-profit agencies and emergency feeding programs that serve the area s hungry children, seniors, ill and needy. In its 20th year, the Food Bank has become a vital part of the Treasure Coast s human services delivery system. TCFB partner agencies currently receive over two million pounds of food each year, which represents 1.3 million meals. Since its inception, TCFB has distributed over 17 million pounds of food to its service area which includes Indian River, Martin, Okeechobee and St. Lucie counties. To learn more visit TCFB s website: 10

11 Office Space for Rent to: Divorce Attorney Bankruptcy Attorney One Block From Courthouse Referral possibilities from 4 other attorneys in the building. Conference rooms, shared copier, free Internet. Rent month to month Contact: Chuck Geary (772) c.geary@yahoo.com Trial Lawyers Committee Greg Weiss The Litigation Section will meet again for its monthly lunch on February 5, 2009 at noon at the office of Page, Mrachek (which will give all of us ample time to develop good war stories to exchange on that date). I hope you and your families have a great holiday season (and your chosen college football team has a great bowl season)! If you would like more information please contact the Chair, Greg Weiss, at gweiss@leopoldkuvin.com. If you would like more information please contact the Chair, Greg Weiss, at gweiss@leopoldkuvin.com. The All Organic Comedy Tour Saturday, February 7, 2009 at the Lyric - 8pm All Tickets - Only $23 each What do you think happens when six comedians get together for a cause none of them had believed in? Hilarity! That s what happens. Knott Funny Productions has brought together New York City s brightest and best: Carole Montgomery, Nick Cobb, and British expatriate David Baker along with South Florida s own Forrest Shaw, Casey Peruski, and Johannah Knott. Join them as they try to save our planet and their sanity. If you reuse, recycle, conserve or preserve Take a night off and indulge yourself in sustainable laughs. It s the All Organic Comedy Tour. Adult Content: We re calling compost what it is Go to and click on February 7th to purchase tickets (All tickets Only $23 each). For more information about our comics please click on 11

12 law OffiCes Of GaRY, williams, finney, lewis, watson and sperando, P.l. fighting for JustiCe On behalf Of OuR Clients for OveR 30 YeaRs! Give us a Call GaRY (4279) OffiCes located in stuart, fort PieRCe and ORlandO, florida New Class A Professional Offices Building at Monterey Commons Suites from 897 to 4,500 sq. ft. Telephone: (772) S.E. Monterey Commons Blvd. in Stuart Adjacent to the Blake Library and Whitham Field Airport A special thank you to Candy n Balloons for donating a beautiful gift basket at the November 21st luncheon. In honor of our Veteran members, we awarded this basket to Doyle Richardson, the veteran with the birthday closest to the meeting date. 12

13 The Federalist Society s Annual Lawyers Conference - What a Difference a Year Makes! Hon. Alan Orantes Forst, Florida Federalist Society s Grand High Exalted Mystic Ruler Last year, I attended the annual lawyer s conference of the Federalist Society. In 2007, they were celebrating their 25th anniversary and they pulled out all the stops, with four Supreme Court Justices, Rudolph Giuliani and President Bush. We were a year away from the 2008 election and there was much debate as to the Republican election prospects. This year s conference was very different! The 2008 annual conference fell just weeks after the route of the Republicans on election day. Although there was still star power to be found (Justice Scalia and numerous Federal judges), this year s conference lacked the this is a special weekend vibe of the 2007 conference. In fact, this year s conference will be most remembered for the speech of the Banquet s keynote speaker, Attorney General Mike Mukassey. Although he gave an excellent speech, his fainting toward the end of the speech is what led the news that evening and cast a pall over that night s festivities. Thankfully, the Attorney General is fully recovered (I missed the banquet I chose to watch The Eagles in concert at the Verizon Center that evening). The theme of this year s conference was The People and the Judiciary. I caught some interesting speeches and panels touching upon this subject. Senate Minority Leader Mitch McConnell gave the opening address and spoke a bit about judicial selection. He noted that the Senate Democrats had challenged the Bush Administration for eight years with respect to their court nominations, making a candidate s perceived ideology a subject to be addressed, making it the nominee s burden to establish that he/she should be confirmed, whereas heretofore the Senate had generally deferred to the President s judgment in making appointments. As most commentators will agree, Federal judicial appointments have become much more politicized in the past sixteen years, an offshoot of the Bork confirmation war of Both Senators McConnell and Spector (who spoke at a Friday breakfast meeting for Grand High Exalted Mystic Rulers) suggested that filibusters by the Republicans were unlikely, but, when the circumstances warrant, the Republicans will make a point. The first Showcase panel discussed the selection of Federal and State judges. This panel included former Deputy Counsels to both Presidents Clinton and Bush and raised some very interesting points. The Bush official, William Kelly, argued that there has been a transformation in how we view the role of judges, with judicial appointments consequently becoming more results-driven. He argued that the rule of law hinges on judges being judges and not on being outcome determinative. He explained that the public at large has little interest in judicial appointments, outside of Supreme Court appointments. It is the interest groups that care and that lead the charge for or against nominees that they view to look favorably or negatively on their agendas. Professor Kelly noted that President Obama will draw a lot of counsel from law school faculties and will have little opposition to his nominations, due to the inability of Republicans to filibuster. Former Clinton official, Will Marshall, welcomed Kelly and the audience to the wilderness. He believes that the blue state/red state political division has spread to the point that Constitutional law has become politicized. He urged leaders of both parties to talk more about neutral criteria for choosing judges, though he acknowledged that will be difficult. The other two panelists, law professor Meryl Chertoff and Alabama Supreme Court Justice Harold See limited their remarks to the state judicial selection process. Professor Chertoff noted that 43 states use elections to some extent. She expressed concern with public ignorance of the candidates, leaving undue influence to interest groups and party bosses, and that leads to judges arguably being motivated more by politics than the rule of law. She fears that elections erode respect for the courts. Justice See, on the other hand, is more favorably disposed to elections. He notes the alternative is the JNC selection process and argues that if money is in play to get someone elected, it can also be used in the JNC process. He believes that elections make judges accountable to the Constitution. Professor Marshall responded that people don t know who they re voting for in State races, which discourages good people from running. Having listened closely to the panel discussion as well as the results of a wide-ranging survey concerning judicial elections, I am even more against judicial elections than I was prior to this convention. The survey showed that 96% of the voters in California couldn t name even one of their Supreme Court justices. In an exit poll, nearly 30 percent of the voters couldn t remember which judicial candidate they had just voted for. The general population could name more of the Rice Crispies (Snap, Crackle and Pop) than U.S. Supreme Court justices. Candidates for the 19th Circuit Court in recent years have spent $80,000 and more, much of that raised from local law firms and from interest groups, as well as from their own wallets. I sincerely doubt that the majority of the electorate studied the respective qualifications and judicial philosophies in determining who to elect. Michael Chertoff, Secretary of Homeland Security, spoke after the judicial selection panel. He noted that the approach to international law should be the rule of law rather than the rule of lawyers. He urged judicial modesty, with limitations on judicial power. When laws are made, there is transparency and debate, in contrast to judicial decisions that stray from the text of the law or Constitution. There were other good panels and presentations at this conference, some that I attended without my notepad (such as the closing address by Justice Scalia), and some that I skipped for important things like attending a Georgetown Hoyas game or just keeping up with work. I highly recommend that, every now and then, you take the time to attend a Federalist Society conference or, if you re so inclined, one hosted by the rival American Constitution Society. It is great to attend the Florida Bar annual meeting or a CLE seminar (particularly one hosted by the Florida Bar s Labor and Employment Law Section). But, it is also a treat for the brain to hear policy and legal debates featuring different points of views (which excludes the ABA) and to have the opportunity to mingle with lawyers (and, in my case, former colleagues) from around the country. 13

14 Criminal Law Committee Darren Steele, Chair Darren s DUI Corner or Yet Another Reason Not To Drink & Drive DUI s & Deferred Sentencing So your ne er do well brother-in-law got a DUI (again). You always knew he was the weak link, but family is family. Also, as your spouse keeps reminding you you are a lawyer why don t you help him. After having protested that you are not that kind of lawyer you give in and take the case. You cut a deal with the assistant state attorney for less jail time than they originally asked for. You go to court, enter a plea of no contest, and then ask the judge to put off the sentencing date until after the holidays. You have visions of yourself as a family hero having kept the ne er do well out of jail for Thanksgiving and Christmas. Your holiday plans are about to go horribly wrong. The judge thanks you for your request to put off sentencing but tells you that she is not allowed to do so on a DUI under Florida law. The judge orders the jail portion of the sentence to begin immediately. Your brother in law is led off with an even more confused expression than he normally has. The gravy is not the only thing that s going to be chilly around your holiday table this year. What went wrong? Surely sentencing hearings can be set for future dates for a variety of reasons. Hidden away in the Florida Traffic Court Rules is Rule which provides in pertinent part that no court shall suspend, defer... the imposition of sentence for the offense of driving or being in actual physical control of a motor vehicle while having an unlawful blood alcohol level or while under the influence of alcoholic beverages, any chemical substance set forth in section , Florida Statutes, or any substance controlled by chapter 893, Florida Statutes. 1 The lesson to be learned, besides to try not to do legal work for relatives, is that DUI jurisprudence has many facets and that much preparation is required to provide excellence in representation. 1 Fla. R. Traf. Ct For more information on planned programs for this committee, contact Darren at dsteelelaw@yahoo.com. The 2008 MCBA Composite Photo To Be Displayed in the Martin County Courthouse! The next time you are in the courthouse, please take a minute to admire it. It will be on display in the hallway on the first floor after you go through the security station. Small & Solo Practice Committee Glenn Ayala For more information on joining this committee and to be notified about future events, please contact Glenn Ayala at: glenn.ayala@ubs.com or

15 LAW OFFICES OF Thurlow, Thurlow & Giachino P.A. Wills, Trusts & Estates Estate & Gift Taxation Corporate Law Commercial & Residential Real Estate Title Insurance Save the Date! The first annual Tennis and Family Fun Day will be held on Saturday, April 25, Look for more details in upcoming issues of the SideBar. Thomas H. Thurlow III LL.M. Master of Laws in Taxation Thomas H. Thurlow, Jr. Of Counsel Fernando M. Giachino LL.M. Master of Laws in Estate Planning 17 Martin Luther King, Jr. Boulevard, Suite 200 Post Office Box 106 Stuart, Florida (772) Fax (772)

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17 The MCBA Young Lawyers Division Anika Hardmon and Rachael Johnson, Co-Chairs Anika Hardmon It s time to Lunch and Learn! This series provides a great opportunity for young lawyers to learn practical tips from judges and experienced attorneys. Please join us for our next YLD meeting on Thursday, January 22 nd at 12 noon at the Law offices of Gary, Williams, Finney, located at 221 E. Osceola Street. The featured speaker will be Dominick D Ambrozio of Dominick D Ambrozio, P.A. Topic: What young lawyers need to know about reading financial statements for litigation. Please RSVP to rjohnson@rivierabch.com or arh@williegary.com. We look forward to seeing you there! Rachael Johnson For more information or if you are interested in sponsoring a MCBA YLD event, please contact Anika Hardmon at arh@williegary.com or Rachael Johnson at rjohnson@rivierabch.com A PROFILE OF REED HARTMAN: GUEST SPEAKER AT MCBA JANUARY CLE LUNCHEON Ransom Reed Hartman is a 5th generation resident of Martin County. Reed comes from a real estate family with his grandfather founding Hartman Real Estate and his father, Rick Hartman and uncle Peter Hartman now carrying on the family business with Hartman Real Estate Inc. Reed graduated from Illinois State University in 2002 with a Bachelors in Science, Construction Management and is a licensed building contractor. Up until joining Elliot Paul & Company, Reed was a construction supervisor for a local commercial builder on the Treasure Coast. Reed Hartman is a licensed salesperson in Florida. Reed graduated from the World Wide College of Auctioneering, Mason City, Iowa. He successfully completed the course of instruction and training covering all phases of auctioneering taught by 20 professional instructors at the college. Reed brings his energy, enthusiasm and knowledge to Elliot Paul & Company. His attention to detail along with current market awareness and vast knowledge of Martin County will aid clients in reaching their real estate goals. Additionally Reed has done numerous charity auctions including: American Cancer Society s Cattle Barons Ball; Heathcote Botanical Gardens; Alzheimers Association of St. Lucie County and Habitat for Humanity. He is also involved in the Stuart/Martin County Chamber of Commerce having recently completed their Leadership program and volunteering for the Youth Martin County Leadership. His classmate in the Leadership program was Martin County Bar President, Linda Weiksnar. Reed will be talking with us about Alternative Ways to Sell Real Estate in a Challenging Market. As usual, attendees will be able to receive one hour of CLE credit. We look forward to a large turnout at the luncheon at Monarch Country Club. Please call to RSVP if you would like to attend. It is important that you RSVP by January 13 th to guarantee a meal. The lunch is free to MCBA members and $25 for guests. 17

18 C r a s h w o r t h i n e s s she Looks safe. But Is she? we co-counsel cases throughout florida. together we can achieve Justice. DeDIcateD to JustIce & safety PaLM BeacH gardens, fl LeoPoLDkuvIn.coM crashworthiness ManageD care abuse class actions PersonaL InJury wrongful DeatH 18

19 THE SOCIAL COMMITTEE John Chapman and Anika Hardmon, Committee Co-Chairs The next scheduled Happy Hour will be held on Thursday, February 12, 2009 at 5:30p.m., location to be determined. Additional information on the this event will be forthcoming. Look for updates in the next issue of the SideBar regarding the Spring Canoe Trip and the Annual Banquet. MCBA ANNUAL BANQUET SPONSORSHIP OPPORTUNITIES ARE AVAILABLE! The MCBA Annual Banquet will be held on Saturday, June 6, 2009 at Willoughby Golf Club. As with last year, our Annual Banquet will feature a Cocktail Hour, Seated Dinner and Entertainment. The Annual Banquet is also the venue at which the new MCBA Officers are sworn in. The Annual Banquet presents unique and successful marketing opportunities for sponsors. In addition to a general sponsorship via monetary donation, sponsorship of individual portions of the Annual Banquet are available, such as the Cocktail Hour, entertainment, invitations, programs, or other elements of the Banquet. For more information please contact John Chapman at jchapman@treasurecoastlegal.com or Anika Hardmon at arh@williegary.com. Cheers - News From the Friendly Probate, Neighborhood Bar Fernando Giachino Trust Law & Guardianship Committee Co-Chairs Christine Bialczak P l e a s e s e n d u s y o u r n e w s o f n e w h i r e s, p r o m o t i o n s, a w a r d s, engagements, marriages, child births, new addresses and the like for future issues of the SideBar. The next Probate, Trust & Guardianship Law Committee meeting will be held at noon on January 14, 2009, at McCarthy Summers et al. Lunch will be served. For more information or questions, please contact Fernando Giachino at Fernando@thurlowpa.com or Christine Bialczak at cmb@mcsumm.com. Justice Teaching Committee By Judge William Roby, Chair For more information on Justice Teaching, please visit the web site at and/ or contact me at Appellate Practice Committee Mark Miller, Chair The Appellate Practice Committee is looking forward to our first meeting on Friday, February 6th at Noon at Duffy s Restaurant. Please save the date and join us as we plan activities for the new year. Questions? Comments? Please call Mark Miller at

20 20 The Side Bar - January 2009