THE ADVOCATE an online newsletter of the South Palm Beach County Bar Association

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1 THE ADVOCATE an online newsletter of the South Palm Beach County Bar Association Fall 2014 President s Message - Marc A. Kaufman Through your support of the South Palm Beach County Bar Association, our organization has continued for the past 54 years. We have maintained our identity as a local bar association and have been able to run our events on strong financial footing. Most importantly, we have kept our unique personal flavor and personality. The SPBCBA has a long and stellar history serving the public good and serving the law. The association was established in 1960 to: 1) advocate for justice in our community; and 2) assist its members in reaching and exceeding the highest levels of legal skills and ethics. Today, this organization has over 500 members that practice or support all areas of the law and who share a commitment to professional excellence and service. For more than 50 years, our members have enjoyed a sense of solidarity with their distinguished peers through membership with our association. Our members have also enjoyed a sense of accomplishment that professional advancement produces, as well as a sense of selflessness that public service engenders. We offer the opportunity for association members to partner in the work of our association through events, committees and sections. Continued on next page OFFICERS: Marc A. Kaufman President Mark R. Osherow President Elect Patricia Alexander Treasurer Eric A. Gordon Secretary Robin I. Bresky Immediate Past President DIRECTORS: Andrew Dector Holly Gayle Gerhson L.A. Perkins Gordon Dieterle Ellen M. Leibovitch Christopher Sajdera James A. Ferrara Daniel A. Kaskel Mitchell Goldberg, YLS President Editorial Review Board: Ellen Leibovitch, Editor-in-Chief Mark R. Osherow Sean M. Lebowitz Layout & Design: Lisa Hurley 1 1

2 We also find time to network and socialize. Our association will continue to provide: the needs of our members leadership on major issues affecting the profession and the community raise and maintain the professional and ethical standards of the bar by maintaining a close relationship with the judiciary educate the public about the legal system through law day events facilitate access to legal services through our website support and improve the justice system community support of local charitable organizations and maintaining a close relationship with other bar associations build and maintain a strong financial infrastructure in order to support association activities through membership and sponsors Every year we host four signature events: The Bench and Barrister Tennis Bash at the Delray Tennis Center in October Holiday Party and Toys-for-Tots Drive at Ruth's Chris Restaurant in December Golf Classic Tournament at Boca Raton Country Club in April Installation Dinner at St. Andrew s Country Club in May We have added a fifth event to our year signature events, the Membership Reception which we hosted in the beginning of September as way of thanking our members for their continued support of our organization. In addition to our signature events, we also host monthly lunch meetings at Morton s Steakhouse in Boca. In addition to providing an opportunity for our members to network with each other, our monthly lunches offer engaging and timely speakers. We have hosted Florida Supreme Court Justices, U.S. Congresspersons, our State Attorney, our Clerk of Courts, authors, sports figures, University Presidents, leaders in local businesses and many more. In addition to the above events offered to all of our members, we also have committees who host events aimed at specific interests and areas of law. We started with a handful of committees and now have 16 committees and one section. Participating in committees allows our members to stay current on recent developments in their specific areas of practice, earn CLE credits and network with fellow members with common interests. Our standing section, the Young Lawyers Section, is a dynamic group of young attorneys who are active in planning events for the entire association, as well as their own section, with the focus of opening the door for professional growth and friendships. Led this past year by Brandan Pratt, who did a marvelous job with planning for and hosting numerous successful and well attended events. He will be succeeded by0 Mitchell Goldberg, whom we know is dedicated to the YLS s continued success. Our website, which is in the process of being renovated, will be easier to use, constantly up-to-date with all the information you need on updates from the courts, upcoming and past events, committees, fellow members and the association s board of directors. Additionally, our site provides useful links to the courts and other resources for our members and well as resources for the public. In keeping with technology and trying to be green, we also publish a quarterly online newsletter, The Advocate. Our Editor-in-Chief this past year was Mark Osherow, and Ellen Leibovitch will now assume the responsibilities for the membership year. Ellen will continue to include important news about our organization, articles of legal interest, calendars of our events and section and committee reports. Our Board of Directors consists of five officers and eight directors. This is a wonderful group of people who volunteer years of their time to serve on this board, which operates on a ladder system. The SPBCBA Board of Directors are dedicated to the exchange of intelligent ideas concerning the operation of this organization and are invested in its success and continued growth. Our future goals include our commitment to: the expansion of membership and membership benefits standards of professional courtesy diversity and inclusion reaching out to law students, young attorneys and established attorneys through our mentoring programs the tradition of being an excellent bar association Together, we are a strong advocate for lawyers, for the legal profession and for our justice system. We encourage everyone to contact a board member, committee chair and the YLS president with any thoughts that you might have concerning the South Palm Beach County Bar Association. Finally, we encourage you to join a committee, attend our events and let us get to know you better. 2

3 Revised "Standards of Professional Courtesy and Civility": New Professionalism Code for South Florida by Adam Rabin and Michael D. Mopsick At its meeting in June 2014, the Board of Directors of the South Palm Beach County Bar Association voted to adopt the newly revised and improved Standards of Professional Courtesy and Civility (the "Standards"). Two years ago, a group comprised of representatives of 43 voluntary bar associations in South Florida, referred to as The South Florida "Got Civility" Project (the Project ), set goals to promote the Florida Supreme Court s amended Oath of Attorney Admission and adherence to accepted standards of professional courtesy throughout South Florida. The South Palm Beach County Bar was represented in this Project by Past President Larry Corman, who also chairs SPBCBA's Professionalism Committee. By officially adopting the Standards, SPBCBA committed itself to furthering the Project's goals. The revised Standards, which were based on the Standards in effect in Palm Beach County for decades, have once again been endorsed by the judges of the 15th Judicial Circuit. The Standards also have been adopted by the other largest voluntary bar associations in South Florida (Palm Beach, Broward, Cuban American, Miami- Dade, and Martin). Accordingly, for the first time, attorneys practicing across the four judicial circuits in South Florida (the 11th, 15th, 17th, and 19th) will now be subject to the same Standards, ending the variances between the circuits of what is deemed to be acceptable professional conduct. Likewise, each judicial circuit now will have its own professionalism panel grievance procedure to enforce the Standards, a forum available in Palm Beach County since The major improvements to the now uniform Standards are summarized as follows: 1. The Preamble. The preamble now references how the Standards will apply across all South Florida counties; it references the Florida Supreme Court s amended Oath of Attorney Admission, that includes a pledge of lawyer civility; and it references the 2013 Florida Supreme Court opinion that requires all judicial circuits to create professionalism panels to hear professionalism grievances. 2. Pro Se Litigants. This change adds language to cover attorneys communication with pro se litigants, not just communication between attorneys. (Section I, 1.) 3. Making Reasonable Efforts to Confer Before Unilaterally Scheduling a Matter. This change now expressly requires scheduling counsel to make reasonable efforts to confer with opposing counsel before unilaterally scheduling a hearing, deposition or other event. (Section I, 2.) 4. Production of Documents. This modification aligns the permitted form of responses to requests for production with Florida Rule of Civil Procedure by permitting the production of documents as they are kept in the usual course of business or as they correspond to the requests. (Section II, 3.) 5. Application of the Standards to Tribunals Other Than the Courts and to Transactional Practice. Lawyers throughout South Florida are now expressly held to the same standard of professionalism and civility regardless of the forum, including administrative hearings, arbitration panels, and mediation. The Standards are also extended to apply in transactional practice, negotiations, and other non-litigation matters. (Preamble) 6. Denigration of the Court or Other Tribunal and Staff is Expressly Prohibited. The scope of the prohibition of denigration of opposing counsel has been expanded to include the court/tribunal and staff. (Section III, 1.) 7. Copying Opposing Counsel with Enclosures on Correspondence to the Court. This change provides that all enclosures delivered to the court must also be ed or delivered to opposing counsel, including all authorities, highlights, testimony excerpts, and similar materials. (Section IV, 3.) 8. Refraining from Argument in Correspondence to the Court. This change makes clear that the only medium by which a lawyer should communicate legal or factual argument to the court is through a motion or memorandum, not a cover letter. (Section IV, 4.) Continued on next page 3

4 9. Correcting Misstatements to the Court/Tribunal. This update clarifies the burden imposed upon counsel to correct errors in statements to the court/tribunal and the obligation for counsel to disclose adverse, controlling authority to the court/tribunal. (Section IV, 1.) 10. s Replace References to Faxes in the Standards. This change replaces all references to faxes with s. (Section IV, 2.). Adam Rabin practices with McCabe Rabin in W est Palm Beach in the areas of business, securities and whistleblower litigation. He is a past president of PBCBA and co-chairs the South Florida Got Civility Project. Mr. Rabin was the lead author of the revisions to the Stand- ards. These improvements to the Standards will create a uniform baseline for lawyers professional conduct and a new level of civility across South Florida. Likewise, the advent of Supreme Court ordered professionalism panels across South Florida s four judicial circuits will provide a parallel mechanism by which the Standards may be enforced in each circuit. Click here to see The Standards of Professional Courtesy Michael D. Mopsick practices with Shapiro Blasi Wasserman & Gora in Boca Raton in the areas of trust and probate litigation and mediation. He is a past president of the South Palm Beach County Bar Association, cochaired PBCBA s Professionalism Committee from , and has been a Palm Beach County representative on the South Florida "Got Civility" Project. Shown from left to right, YLS President Mitchell W. Goldberg, Sheila Bethel, YLS Director Michael K. Grife, and YLS Secretary Scott Weiss YLS Conducts School Supply Drive by YLS Director, Colleen Huott On September 2, 2014, members of the Young Lawyers Section of the South Palm Beach County Bar Association met at Pine Grove Elementary School in Delray Beach to donate school supplies to help underprivileged students for the upcoming school year. Pine Grove Elementary School serves approximately 400 elementary school students, 98% of whom are on reduced or free lunches. At the beginning of the summer, the YLS set up donation boxes at participating law firms in and around South Palm Beach County and received generous donations over the course of the summer. Members of the YLS met with Sheila Bethel, the community outreach coordinator for Pine Grove Elementary, who expressed her gratitude on behalf of the school. 4

5 Helping Attorneys Serve Their Clients by Andrew Kravit Many South Florida attorneys benefit from knowledgeable advice and practical assistance in regard to valuing and liquidating their clients' personal property assets. While there are usually few problems in valuing stocks, bonds and cash-like securities and distributing the proceeds to heirs, the process can be far more difficult with tangible assets like jewelry, antiques and artwork: How do you help your clients resolve "who gets what" issues over tangibles that carry sentimental weight? How do you value personal assets like jewelry, timepieces, fine art, decorative art, antiques, furniture, silver, automobiles, wine, books, firearms, coins and currency? How do you dispose of those assets in a way that maximizes their value to the estate, while controlling the sales process? A certified appraisal and estate liquidation firm may offer assistance to grantors, beneficiaries and fiduciaries regarding the valuation and representation of tangible personal property assets, including: Estate tax liability appraisals Charitable contribution for estate deduction appraisals Equitable distribution appraisals Certain appraisers specialize in the appraisal of collectibles and residential contents, and work closely with attorneys to solve challenging estate-related issues across all collecting categories by providing advisory services, litigation support and expert testimony. In addition to providing assistance with valuations for estate tax, family division, insurance, and other purposes, appraisers can take an innovative approach to the sale and liquidation of tangible assets, helping clients achieve the highest possible net value through private sales, auction recommendations and consignment management. One example of a leading-edge approach is the use of sealed bid auctions. In this liquidation process, the appraiser presents a client s property to a network of vetted dealers and private collectors, collecting five to ten sealed bids per item, which are then presented to the decision makers. While the highest bidder is usually declared the winner of the auction, all bids may ultimately be rejected. This format ensures bidder confidentiality, compelling participants to submit their maximum offer from the outset. Appraisers can also offer an auction house consignment service to their clients who prefer to consign their property to an auction house, but wish to minimize the associated fees, which typically approach 30 percent of the sale and can reach 50 percent in unique circumstances. When choosing appraisal services, one should consider financial strength including multimillion-dollar insurance coverage for clients' possessions in order to minimize or waive some fees that you may otherwise be charged. Look for an appraiser who has been awarded the designation of Professional Estate Liquidators by the American Society of Estate Liquidators, the only nationally recognized professional organization for Estate Sale Professionals. In summary, look for an appraiser whose mission is to assist clients and their families with estate planning and settlement solutions relating to their tangible personal property, including forward-thinking products and services to satisfy all of their objectives. You should also look for an appraiser who believes in building strong partnerships with attorneys to help carry out grantors' wishes and preserving an estate's maximum value for its beneficiaries. Andrew Kravit is President of Kravit Estate Appraisals LLC, a certified appraisal and estate liquidation firm that offers assistance to grantors, beneficiaries and fiduciaries regarding the valuation and representation of tangible personal property assets. SPBCBA welcomes Kravit Etate Appraisals, LLC as our newest annual sponsor! 5

6 A Horse Walks into a Law Office... Service Animals in Places of Public Accommodation by Linda J. Ehrlich The receptionist buzzes you from the front desk, whispering, Someone just walked in with a horse. What am I supposed to do? Although you have conducted staff training regarding compliance with state and federal laws pertaining to service animals in your law office (a place of public accommodation under Title III of the Americans with Disabilities Act, see The Advocate, Winter 2014), you tell the receptionist that you will be right out. Entering your office s waiting area, you are relieved to see a miniature horse, approximately the size of a large dog. It is tethered and under the control of the accompanied individual. You recall that, since the effective date of the 2010 ADA Standards for Accessible Design (March 15, 2011), federal regulations have included a special provision, 28 C.F.R (c)(9) - requiring public accommodations to permit the use of a miniature horse that has been individually trained to do work or perform tasks for the benefit of a disabled individual. The Department of Justice s Title III regulations permit you to ask only two questions: whether the animal is required because of a disability, and what work or task the animal has been trained to perform. A service animal must be individually trained to perform work or do tasks related to that individual s disability, although you cannot ask for a demonstration, nor can you require documentation of training or certification that it is a service animal. You are not permitted to inquire into the nature or extent of the person s disability, which may not be readily noticeable. Although Title III permits service animals for psychiatric disabilities, if the animal is solely to provide emotional support or comfort, it is not included in the definition of a service animal; the difference is in the tasks that the animal has been trained to perform. Other laws, such as the Fair Housing Act and Air Carrier Access Act, do permit some emotional support animals. The DOJ s 2010 revised ADA regulations narrowed the definition of a service animal to include only dogs (the most common service animal), excluding other species previously covered, see 28 C.F.R Therefore, miniature horses technically are not included in the federal definition of a service animal. However, proponents of miniature horses succeeded in persuading the DOJ to include the special regulation governing their use as a service animal, albeit with a reasonableness requirement that does not exist for a dog. In determining whether it is reasonable to allow the horse access, a public accommodation is to consider whether the handler has sufficient control of the horse, whether it is housebroken, whether the facility can accommodate the size of the horse, and whether the animal s presence compromises legitimate safety requirements. Realistically, both dogs and miniature horses are covered under Title III. As you are mulling this over, you also recall that there is a state statute governing service animals, Florida Statute , and that it differs from federal law primarily as follows: (1) the definition of public accommodation appears narrower, although the limits of the phrase and other places to which the general public is invited do not appear to have been tested; (2) coverage is broader insofar as it does not restrict coverage to dogs and horses, so long as an animal is trained to perform tasks for an individual with a disability; (3) only physical, not psychiatric, disabilities are covered; (4) coverage is broader in that trainers -- and the animal in training - are provided the same protection as the disabled individual and service animal; (5) the sole reason for excluding or removing a service animal is if the animal s behavior poses a direct threat to the health and safety of others, whereas federal law also permits exclusion/ removal in the case of undue burden or in the unlikely event that permitting a service animal would fundamentally alter the operation of the business; and (6) Florida Statute does not create a private cause of action, but provides for criminal penalties. Under both federal and state law, a service animal is not a pet. Where there is a conflict between state and federal law, the law providing the greatest protection to the disabled individual will prevail. Federal law specifically provides for exclusion or removal of a service animal that is not properly controlled or is not housebroken, both of which would seem to be a direct threat to the health and safety of others warranting exclusion/removal under state law. Neither fear of animals nor allergies is considered a valid reason to deny access. Continued on next page However, proponents of miniature horses succeeded in persuading the DOJ to include the special regulation governing their use as a service animal... 6

7 Under both state and federal law, if a service animal is excluded, the disabled individual must be given the opportunity to access the facility without the animal. As you make a mental note that a refresher course for your staff may be in order, you consider the consequences you might face if you improperly exclude the miniature horse. Under Title III, you could face, in addition to injunctive relief, a monetary penalty if the DOJ files an action. The recently-amended amounts for violations occurring after April 28, 2014, are up to $75,000 for a first violation and $150,000 for subsequent violations, see 28 C.F.R If the person you excluded brings a private Title III action, a court could grant injunctive relief and award costs, including attorney s fees. A criminal penalty is found in Florida Statute (4), which states that interfering with the rights provided by the statute constitutes a second-degree misdemeanor. This would include improperly refusing to allow access to a service animal, and applies to trainers. Patrons of public accommodations who believe tha t their rights have been interfered with have been known to call the police on the spot, which is never good for business. Although Florida Statute (4) does not create a private right of action leading to potential monetary damages, such an action might arise under the Florida Civil Rights Act (FCRA), Florida Statute et seq., which prohibits discrimination in certain places of public accommodation, and which does provide for compensatory and punitive damages. You breathe a sigh of relief as you look at the definition of public accommodation in Florida Statute (11), and see that your law office does not seem to come within the purview of the statute. On the other hand, even under the narrow definition of public accommodation in the FCRA, your clients in the hospitality and entertainment industries, as well as gas station owners, among others, should be vigilant about these laws and the possibility of monetary damages in a private action. In order to proceed under the FCRA, the complaining party must first file a charge with the appropriate administrative agency and exhaust administrative remedies. Florida continues to be a hotbed of ADA lawsuits, accounting for a distressingly-large percentage of civil filings in the Southern District. Educating yourself and your clients about the pertinent laws and potential pitfalls is a prudent first step. Linda Ehrlich is a solo practitioner in Boca Raton who has defended Title III ADA lawsuits since 1997, and focused on labor and employment law since She has been admitted to practice in Idaho, Washington State, Florida (sole active state membership) and Israel, and is admitted to the U.S. District Courts for the Southern, Middle and Northern Districts of Florida, in addition to the 11th Circuit Court of Appeals and U.S. Supreme Court. Linda is certified both as a Circuit Civil and Appellate Mediator, and is a Qualified Arbitrator. The South Palm Beach County Bar Association also welcomes your comments and submissions on topics relating to the law, the practice of law, the legal profession, the SPBCBA and The Advocate, and general interest items relating to our membership. All items published are at the sole discretion of the SPBCBA. Letters must be signed but names will be withheld upon request. The editors reserve the right to condense. Please send all submissions to: The South Palm Beach County Bar Association at 9858 Glades Road, #189, Boca Raton, FL, 33434, or to Submitted items will not be returned. 7

8 THE SOUTH PALM BEACH COUNTY BAR ASSOCIATION INVITES YOU TO PLAY AT OUR 6TH ANNUAL BENCH & BARRISTER TENNIS TOURNAMENT Saturday, October 18, :00 a.m. 1:00 p.m. (lunch included) The Delray Beach Tennis Center 201 West Atlantic Avenue Delray Beach, FL EVENT GRAND BENEFACTOR: Thank you to our generous sponsors: REFRESHMENT AND LUNCH SPONSOR: SWAG BAG SPONSOR: TOWEL SPONSORS: AND Sponsorship opportunities available! 8 Visit to register

9 TENNIS COURT SPONSORS: MANIS O SHELL, llc CERTIFIED PUBLIC ACCOUNTANTS 9

10 An Update from SPBC FAWL by Leorah Greenman, SPBC FAWL President The South Palm Beach County Chapter of the Florida Association of FAWL is pleased to announce the start of another successful year! We have already hosted, to the delight of our members, a yoga and brunch event (as part of our FAWL FIT Series ), a mix & mingle happy hour at Tanzy s and our annual membership reception at Farmer s Table. SPBC FAWL will continue a tradition of monthly CLE lunches (held on the second Thursday of every month), our annual SPBC FAWL THINK PINK breast cancer awareness and fundraising luncheon (October 16 at Boca Grove Country Club) and more networking opportunities to further our mission to promote women in the law. SPBC FAWL will also continue its award-winning program Educating Tomorrow s Adults, where we reach out to educate high school seniors about the legal implications of turning age 18. SPBC FAWL is also partnering with State FAWL and the Informed Voter s Project to educate the public on the role of the judicial branch of government and how to make informed decisions when voting for judges. SPBC FAWL is also looking forward to our holiday party (December 16), our annual judicial reception (February 13), and our joint luncheon with SPBCBA featuring Gary Coleman, President of The Florida Bar (January 21). Andrea Reid, one of SPBC FAWL s outstanding members, with the support of Legal Aid of Palm Beach, is spearheading an important CLE seminar for Domestic Violence Training on November 13 at I-Pic in Mizner Park. As part of Legal Aid s Domestic Violence Project, attendees will receive training to be able to represent victims of domestic, dating, sexual and repeat violence. SPBC FAWL is proud to support this training and applauds Andrea s work on this extremely important project. Be sure to check out SPBC FAWL s website (www.spbcfawl.org) so you w ill not m iss the opportunity to participate with SPBC FAWL. Leorah G. Greenman is the President of the SPBC FAWL. Ms. Greenman has been an attorney at Frank, Weinberg & Black, PL since 2006 and is admitted to practice law in New York and Florida. She manages the Residential Real Estate Department in the Boca Raton office. Personal injury law firm occupying a 2-story, free-standing, Class-A building in Boynton Beach seeks a professional practice that will complement their friendly and well-designed environment. Conveniently located on Boynton Beach Blvd. between I-95 and the Turnpike. One-to-three offices available on the first floor with accompanying secretarial spaces. Includes a full-time receptionist and conference room. One office available with secretarial space in Boca Raton, located on Glades Rd. across from the Turnpike; Class A office space. Kogan & DiSalvo Personal Injury Law 7900 Glades Rd. Suite 330 Boca Raton, FL For more information and to schedule a tour, please contact: Robin Coggin or Anne-Marie Kopek, Kogan & DiSalvo Personal Injury Law, 3615 W. Boynton Beach Blvd., Boynton Beach, FL 33436,

11 CONTACT: Phillip H. Hutchinson, Esq., Chair Fifteenth Circuit Judicial Nominating Commission TELEPHONE: (561) The Fifteenth Circuit Judicial Nominating Committee announces three vacancies due to the elevation of Judge Robin Rosenberg and the resignations of Judges Ronald Alvarez and Timothy McCarthy. The Judicial Nominating Commission has been asked to provide Governor Rick Scott with nominees for the three vacancies. Qualifications of Applicants: Applicants must be residents of the territorial jurisdiction of the Court at the time he or she assumes office, electors of the State of Florida and members of The Florida Bar for the preceding five (5) 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 required. 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 Phillip H. Hutchinson, Chair, Fifteenth Circuit Judicial Nominating Committee, 777 S. Flagler Drive, Suite 300 East, West Palm Beach, Florida ) The deadline for submission of the completed application is 5:00 p.m., Friday, October 3, Applications submitted after the deadline will not be considered. Additional Information: After the deadline for submitting applications, the Commission will contact qualified applicants to confirm the date, time and location of an interview. 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 Fifteenth Circuit 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 Mr. (561) Membership with the SPBCBA is a valuable tool! Don t miss the opportunity to participate in many active committees, monthly luncheons, quality CLE seminars, networking events, quarterly newsletters, weekly updates and many special events. Visit our website for more information! 11

12 Update on the Diversity & Inclusion Committee by L.A. Perkins, Committee Chair The Diversity & Inclusion Committee is excited to announce that on October 10, 2014, it will be hosting a luncheon titled Successful Diversity Initiatives: Perspectives from In-House Counsel and Leading Law Firms at the Wyndham Hotel in Boca Raton. Lunch will be catered by the Farmer s Table restaurant. The format will be a panel discussion where the panelists frankly discuss success strategies from which we all can learn and utilize in our practices. This will be a wonderful event, not to be missed. Registration will begin at 11:45 a.m.; the event will start promptly at noon and conclude at 2 p.m. The cost is $ Please register as soon as possible as space is limited. The SPBCBA will be applying for two CLE ethics credits for this event. You may register on-line at or contact Lisa Hurly, Executive Director of the SPBCBA, at or Information on the CDI may be found at under Sections and Committees. The Diversity & Inclusion Committee webpage includes links to other minority bar associations in Palm Beach and Broward Counties. If you are interested in serving on the Diversity & Inclusion Committee or have any suggestions for the types of programs and activities for the CDI to host, please contact Committee Co-Chairs, L.A. Perkins, Esq., at or via at or Dan Kaskel, Esq., at or via at The SPBCBA s Diversity & Inclusion Committee is committed to advancing diversity and encouraging the inclusion of different perspectives, ideas and experiences within the legal profession. Our mission is to foster an environment where individuals of diverse race, color, ethnicity, culture, gender, sexual orientation, gender identity and expression, nationality, age, disability, and marital and parental status may thrive professionally and contribute to the goals of the SPBCBA. 12

13 Probate Code Trivia Night 2014 by Yoshi Smith Each member of the winning team won a $50 Gift Certificate to Total Wine, a Tehera Speed Pass and the title of Probate Trivia Maven. Awards were also given to the second place team. The Probate Committee of the South Palm Beach County Bar Association, chaired by Yoshimi Smith and Norman Fleisher, held the The Probate Committee would like to thank all who attended and Third Annual Probate Code Trivia Night on May 22 at the Bocaire participated in the Trivia Night. We would also like to thank our Country Club. sponsors for the event: Wells Fargo, MBAF, Pankauski Law Firm and Proskauer Rose, LLP. We look forward to seeing you next They were honored to have over 100 participants at the event inyear! cluding members of the probate division of the 15th Judicial Circuit Judge Colin, Judge French and Judge Gillen. Tehera SmithGranter, the pr obate Cour t Oper ations Manager, was the judge for the evening. The presenters were Edward Smith from the accounting firm of Morrison Brown Argiz & Farra, LLC and George Karibjanian of Proskauer Rose. The event consisted of 12 teams who competed to answer both probate and general trivia questions. In a very close competition, the ultimate winners were Paula Albright, Stuart Rader, Gayle Coleman Rader, Duane Pinnock and Richard Schuller. The Judges Team The Presenters The Winning Team The Trivia Night Committee 13

14 Reasons to Join the SPBCBA A good leader takes a little more than his share of the blame, a little less than his share of the credit. - Arnold H. Glasow Lunches with time to network with other attorneys and members of the Judiciary Committees dedicated to specific practice areas for professional development Young Lawyers Section SOLO/Small Law Firm Networking Group Annual Holiday Party, Golf Tournament, Installation Gala and Bench- Barrister Tennis Bash Free (or reduced cost) CLE Events Website listing on our webpage (www.southpalmbeachbar.org) by area of practice 14 Weekly blasts with all upcoming events

15 September Monthly Membership Lunch by Andrew M. Dector On Tuesday, September 9, Sharon Bock, Clerk and Comptroller of Palm Beach County spoke at SPBCBA s monthly luncheon at Morton s in Boca Raton. Ms. Bock was joined by her Chief Operating Officer, Cindy Guerra. Ms. Bock updated the membership on the latest issues confronting the Clerk s office and devoted much of her talk about upgrading access to the Court through technology. The Clerk s office hopes to make available soon to the public as well as attorneys access to all filings from their own computers. Additionally, the Clerk s goal is to eventually connect every attorney walking through the courthouse doors automatically with the Court s computer system so that there will be a seamless transition from office to court. SPBCBA thanks Ms. Bock and Ms. Guerra! October Board of Directors Meeting 2 ADR/Mediation Committee Lunch 10 Diversity & Inclusion CLE Seminar 14 Monthly Membership Lunch - Morton s 18 Annual Bench & Barrister Tennis Tournament Dates to Save! April 24, 2015 Eleventh Annual Golf Classic May 30, th Annual Installation Gala November Board of Directors Meeting 18 Monthly Membership Lunch - Morton s December Board of Directors Meeting 18 Annual Holiday Party & Toys for Tots Drive 15

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17 16 Broad and Cassel attorneys have been recognized by their peers for their legal expertise in Florida Trend Magazine s Florida Legal Elite 2014, two of whom are members of the SPBCBA, Scott Lampert, Of Counsel and Mark R. Osherow, Of Counsel; both practice in the West Palm Beach office. Scott Lampert Capehart Photography Additionally, Gary S. Lesser, Joseph Landy, and Michael Smith of Lesser, Lesser, Landy & Smith in West Palm Beach were recently recognized in the 2014 edition of Florida Trend s Florida Legal Elite. named partners, Gladstone & Weissman, P.A. effective July 15, Gladstone & Weissman, P.A., with offices in Boca Raton and Fort Lauderdale, specializes exclusively in the discreet handling of complex divorce and related family law matters with expertise, integrity and compassion. Denise L. Jensen Additionally, Mark R. Osherow, who is also the President-Elect of the SPBCBA, has been admitted to practice before the Supreme Court of the United States. Attorney Sophia Lopez of FL Trusts & Estates Law Firm was selected as a scholar for the Florida Bar Leadership Academy. Ms. Lopez is also the new cochair of the SPBCBA's Elder Law Committee. David L. Hirschberg Mark R. Osherow Sophia Lopez Christopher W. Rumbold The American Jewish Committee (AJC) Palm Beach County Regional office will honor Gary S. Lesser, Managing Partner of Lesser, Lesser, Landy & Smith, PLLC., with its 2014 Judge Learned Hand award on Monday, October 20th at 6 p.m. at the Cohen Pavilion, Kravis Center, West Palm Beach. The AJC cited, The Judge Learned Hand award is presented to outstanding leaders in the legal profession who exemplify the high principles for which Judge Learned Hand was renowned. Gary Lesser is one of those leaders. Ashley Dillman Bruce, an attorney with Berger Singerman, LLP, was a panelist on Lien-Stripping in Chapter 7 and Chapter 13 at the American Bankruptcy Institute s 19th Annual Southeast Bankruptcy Workshop in Amelia Island on July 25, She has also been elected as a Palm Beach Director on the Board of Directors for the Bankruptcy Bar Association for the Southern District of Florida to serve a three year term. Denise L. Jensen, David L. Hirschberg and Christopher W. Rumbold have been Additionally, Partners Peter L. Gladstone and Jeffrey A. Weissman, and Senior Attorney Christopher W. Rumbold were named to Florida Super Lawyers List and Senior Attorney Denise L. Jensen named Rising Star. Have information to be posted in Bar Talk? it to Lisa Hurley, Executive Director, at or fax it to

18 Legal Updates Relevant to Community Associations by Steven Rappaport Effective July 1, 2014, the Florida Legislature passed several laws affecting both Condominium and Homeowners Associations. This article is provided as a summary of some of the most important changes that will affect community associations and community association attorneys. This article does not summarize every law that was passed in July and, as such, should not be relied on as a comprehensive guide to the legislative changes. I. CONDOMINIUM ASSOCIA- TIONS A. Right of Access to Units ( (5)(b)(1), Fla. Stat.) (5)(b)(1) is amended to specifically allow an association the right of access to an abandoned unit to inspect the unit and adjoining common elements, to make repairs to the unit or to the common elements as needed, to repair the unit if mold or deterioration is present, to turn the utilities on for the unit, or to otherwise maintain, preserve or protect the unit and the adjoining common elements. Also provides notice requirements for entering the unit and provides conditions where a unit will be deemed to be abandoned for purposes of allowing the right of access. Further, an Association may petition a court to appoint a receiver to lease out the abandoned unit for the benefit of the Association. B. Insurance ( (11) (j), Fla. Stat.) (11)(j) is amended to clarify that, in the absence of an insurable event, the Association or unit owner shall be responsible for the reconstruction, repair or replacement as determined by the applicable provisions of the Declaration or Bylaws. C. Official Records ( (12), Fla. Stat.) (12)(c)(5), Fla. Stat., is clarified to allow the Association to publish a directory containing all telephone numbers of each unit owner and also specifically providing that a unit owner may consent in writing to the disclosure of other contact information described in the statute (12)(f) is created to specifically require an outgoing Board or committee member to relinquish all official records or property of the Association within 5 days after the election. D. Board Meetings ( , Fla. Stat.) is amended to clarify that Board members may meet via telephone, real time video conferencing or similar real time electronic or video communication, and such may count towards the quorum as well as voting as if physically present is also amended to provide that members of the Board may use as a means of communication but may not cast a vote on an Association matter via . E. Assessments ( (1)(a), Fla. Stat.) (1)(a) is amended to provide that the term previous owner does not include an Association that acquires title to a delinquent property through foreclosure or by deed in lieu of foreclosure, such that an Association acquiring title to a unit through foreclosure or otherwise will not wipe out the previously unpaid assessments. F. Liens and Collection of Assessment ( (5)(d) and (6)(b), and (4), Fla. Stat.) Provides a specific statutory form that the Association must substantially follow for the following purposes: (i) release of lien; (ii) notice to the unit owner of the Association s intent to record the claim of lien to collect unpaid assessments; and (iii) notice to a unit owner of the Association s intention to foreclose its lien. G Termination of Condominiums ( , Fla. Stat.) The termination requirements of Section are amended to provide that if a plan of termination fails, a new plan may not be proposed or solicited for 180 days after the date that the failed plan of termination was first given to the unit owners. II. HOMEOWNERS ASSOCIA- TIONS A. Board Meetings and Membership Meetings - Handicapped Accessibility ( (2) and ( (1), Fla. Stat.) Amended to require that meetings of the Board and meetings of the members must be held at a location that is accessible to a physically handicapped person if requested by a physically handicapped person who has a right to attend such meetings. B. Official Records ( (5), Fla. Stat.) (5), Fla. Stat., is clarified to allow the Association to publish a directory containing all telephone numbers of each owner and also specifically providing that an owner may consent in writing to the disclosure of other contact information described in the statute (5) is created to specifically require an outgoing Board or committee member to relinquish all official records or property of the Association within 5 days after the election. C. Amendments ( (1), Fla. Stat.) Amends (1) to provide that, in lieu of sending a recorded amend Continued on next page 18

19 ment to the members, the Association can simply send notice that the amendment was adopted, identifying the official book and page number of the recorded amendment, if the amendment was previously provided to the owners when they voted on the amendment, and if the amendment has not been changed, and also must provide that a copy of the amendment is available upon written request at no charge to the member. D. Liens and Collection of Assessment ( , Fla. Stat.) Provides a specific statutory form that the Association must substantially follow for the following purposes: (i) release of lien; (ii) notice to the unit owner of the Association s intent to record the claim of lien to collect unpaid assessments; and (iii) notice to a unit owner of the Association s intention to foreclose its lien. E. Association Emergency Powers ( , Fla. Stat.) Provides emergency powers to an Association where an emergency has been declared by the Governor. III. COMMUNITY ASSOCIA- TION MANAGEMENT (HB 7307) Amends the definition of community association management in Section (2), to include several additional detailed practices that will now be considered as community association management, which include the following: Determining the number of days required for statutory notices; Determining amounts due to the Association; Collecting amounts due to the Association before the filing of a civil action; Calculating the votes required for a quorum or to approve a proposition or amendment; Completing forms related to the management of a community association that had been created by statute or by a state agency; Drafting meeting notices and agendas; Calculating and preparing certificates of assessment and estoppel certificates; Responding to requests for certificates of assessment and estoppel certificates; Negotiating monetary or performance terms of a contract subject to approval by an Association; Drafting pre-arbitration demands; Coordinating or performing maintenance for real or personal property or other related routine services involved in the operation of a community association, and complying with the Association's governing documents and the requirements of law necessary to perform such practices. Amends Section , Fla. Stat., to require that a community association manager or community association management firm must discharge his or her duties as authorized by law, loyally, skillfully, and diligently; shall deal honestly and fairly and in good faith, with care and full disclosure to the community association; and shall account for all funds and not charge unreasonable or excessive fees. Further provides that a community association may indemnify and hold harmless a community association manager or community association management firm for ordinary negligence, and provides for other indemnification requirements. As stated above, this is a summary of the most relevant changes that community association attorneys will deal with on a day-to-day basis. It is highly recommended that all attorneys review the full text of the 2014 laws in order to gain a more comprehensive understanding of the changes that will affect your practice. Steven G. Rappaport is an Associate in the Community Associations Practice Group of Sachs Sax Caplan, and a Co-Chair of the SPBCBA Real Estate, Land Use & Community Association Committee. 19

20 Wage & Hour Update by Jurate Schwartz, Co-Chair of the Labor & Employment Committee On September 12, 2014, the SPBCBA Labor & Employment Law Committee (co-chaired by Melissa Zinkil and Jurate Schwartz) held a breakfast sem inar on a hot topic in the employment law area -- Department of Labor audits concerning violations of the Fair Labor Standards Act ("FLSA"). The seminar featured a guest speaker, the Department of Labor, Wage and Hour Division District Director in Miami, Will Garnitz and was attended by a variety of attorneys, business owners, and human resources professionals. Mr. Garnitz shared with the audience the Department of Labor's initiatives, addressed issues related to the misclassification of employees as "exempt" versus "not exempt" from the overtime provisions of the FLSA as well as issues related to the misclassification of workers as "independent contractors" versus "employees," and offered guidance to employers on how to "stay out of trouble." Mr. Garnitz s presentation was followed by an informative question and answer session. In addition to Mr. Garnitz, Norman Mann, the W age and Hour Division Area Director for West Palm Beach, also attended the seminar. Guest speaker Will Garnitz of the Department of Labor, Wage and Hour Division District Director in Miami SPBCBA s Mentorship Program by Tammy Saltzman The Florida Bar and the Henry Latimer Center for Professionalism created a program for mentoring for Bar Associations throughout the state to use for setting up mentorship committees. It is with great pleasure to announce that the SPBCBA has decided to implement such a program for our members. Mentoring has been used for many years to offer guidance to novices of a profession. The program will cover the following basic mentoring relationships: 1. Self taking control of one s own personal development. 2. Episodic getting together for a brief amount of time and gaining practical knowledge from experience, usually at an event such as a luncheon, conference, social, picnic, etc. 3. Reverse changing positions in which the mentee is guiding the mentor (i.e., new lawyer teaches a seasoned attorney about social media). 4. Electronic offering guidance and wisdom via or other technology sources such as a chat, text, instant message, etc. 5. Traditional two people paired up in a traditional mentor/mentee relationship. The first Mentorship Committee meeting will be held on October 2, 2014, 8:30 a.m., at TBS LAW, P.A., 2000 Glades Road, Suite 300, Boca Raton. This is a great opportunity to get involved in the committee on the ground level while helping to launch an important Mentorship Program for our members. Please let Tammy know if you would like to join this committee by contacting her at if you have any questions. Tammy B. Saltzman practices in th e area of family law, real estate, probate, and collaborative divorce. She is the Chair of the SPBCBA s new Mentorship Committee 20

21 State FAWL Update by Robin Bresky, State FAWL President Welcome back to all of our SPBCBA members - I hope everyone had a great summer! I had a wonderful year serving as President of SPBCBA, and I think the board has left the organization in great shape and in the capable hands of our new President, Marc Kauffman. I enjoyed my presidency so much that rather than retire from voluntary bar service, I am continuing to serve - as President of State Florida Association for Women Lawyers. During the weekend of September 12th-15th, we had a fantastic leadership retreat at the Eau Palm Beach in Manalapan. We kicked the weekend s festivities off with a cocktail party and invited our local FAWL chapters, as well as members of the judiciary and other community leaders. We had a fantastic interactive presentation by Cammi Hauser, practice advisor with Atticus. We worked on getting systems in place for an organization that has now grown to over 3,000 members. We also discussed how we all need to appreciate and be sensitive to each other s different communication styles and inherent strengths in order to work together to further the organization s mission of equality for women in the judiciary, the legal profession, and the community at large. We had a fantastic dinner together Saturday night and spent time continuing getting to know the local chapter presidents and representatives throughout the state. Finally we had our second of four inperson board meetings for the year (we have monthly telephonic meetings). We have some amazing things planned for FAWL this year, including taking the lead on the Informed Voters Project, working on important legislation and continuing to develop the resources needed to further our FAWL s mission. If you would like to get involved in FAWL, please check us out at Andrea Reid, Leorah Green, and Robin Bresky, Judge Lori Berman, Michelle Suskauer, and Robin Bresky Cammi Hauser, David Prather and Robin Bresky, President of State FAWL 21

22 The Eleventh Circuit Weighs in on Ghostwriting by Ashley Dillman Bruce and Bernice Alden Dillman Courts are confronting the practice of ghostwriting more and more in this evolving legal market that demands better yet cheaper legal services. Ghostwriting is a form of unbundled legal service in which an attorney drafts a document on behalf of a client appearing pro se without formally appearing before the court. In contrast to traditional full-service representation, a lawyer will agree to be responsible for only carefully delineated portions of a client s case and may agree to provide additional services such as preparing a settlement agreement without participating in the negotiations, researching a legal issue for a client and providing advice on a narrow topic, or reviewing client -drafted documents. Many states have not addressed issues involving ghostwriting in their ethics rules, leaving attorneys unsure of where the lines are drawn. Recently, the Eleventh Circuit implicitly authorized the practice as long as the proper disclosures are made. In Torrens v. Hood (In re Hood), 727 F.3d 1360 (11th Cir. 2013), a debtor who was unable to afford representation for both his bankruptcy and foreclosure needs, paid a $1,000 retainer to a law firm to provide foreclosure defense work. On that same date, a courier filed a pro se Chapter 13 petition via a power of attorney on the debtor s behalf in the bankruptcy court. The circumstances behind the petition s preparation and filing were highly disputed -- the debtor contended that he had no knowledge that he had filed for bankruptcy and the law firm maintained that the firm s secretary acted as a scrivener when she prepared the petition at the debtor s request by writing the debtor s oral responses into the corresponding blanks on the petition. Although the bankruptcy court found the debtor s contention to be untruthful, the court still held that the law firm fraudulently prepared and filed a pro se petition on behalf of the debtor and that the law firm acted as a ghostwriter by failing to sign the Chapter 13 petition and thus perpetrated fraud upon the court. As a sanction against the law firm, the court suspended several attorneys from practice before the bankruptcy court. The court also referred the matter to the office of the United States Attorney for possible criminal prosecution and to the Florida Bar for disciplinary proceedings. On appeal, the district court affirmed the bankruptcy court s decision, concluding that the surrounding circumstances supported the bankruptcy court s findings. The law firm appealed the ruling that a fraud was perpetrated on the court by ghostwriting the debtor s Chapter 13 petition and the finding that the law firm violated Florida Rules of Professional Conduct 4 3.3(a)(1) and 4 8.4(c). On appeal, the Eleventh Circuit held that while the rules require that an attorney who assists by drafting a pro se document identify the document as one prepared with the assistance of counsel, merely filling in blanks on a form does not require such disclosure. In reversing the district and bankruptcy courts, the court explored the Rules Regulating the Florida Bar. Rule 4 1.2(c) reflects the Florida Bar s stance on the issue of attorney ghostwriting, or more simply put, the undisclosed assistance of counsel in the drafting of a pro se document filed with the court. Rule 4 1.2(c) explains that when an attorney assists by drafting a pro se document to be submitted to the court, the attorney must identify the document as [p]repared with the assistance of counsel. R. Regulating Fla. Bar 4 1.2(c) cmt. Consistent with the plain language of the Rule, the Eleventh Circuit found that it was apparent that the law firm did not draft a document for the debtor, nor did the firm write or compose the pre-formatted Chapter 13 petition. To the contrary, the secretary recorded answers on a standard fill-in-theblank Chapter 13 petition based on the debtor s verbal responses and the debtor personally signed the petition. The court explained that a Chapter 13 petition stands in stark contrast to a ghostwritten pro se brief which is a substantive pleading that requires extensive preparation [and] much more than is necessary for the completion of a basic, fill-inthe-blank bankruptcy petition. In re Hood, 727 F.3d at With Hood as guidance, attorneys may, within the parameters the Rules Regulating the Florida Bar, draft documents for filing without actually signing them as 22

23 long as they identify that the documents were prepared with the assistance of counsel. If all that is done is simply filling in the blanks on a pre-printed standard form, it seems the notation is not required. This allows attorneys and office staff to assist a client without actually representing the client in the case. As technology progresses and the demands of a rapidly evolving economy become more apparent, lawyers may have no choice but to move toward ghostwriting as a service offered to clients who do not have the resources available for full-service representation. Bernice Alden Dillman (pictured left) has operated her own law practice for over 30 years in Boca Raton and handles family law matters involving dissolution of marriage, spousal support, child support, and child custody, as well as consumer bankruptcy cases. Ashley Dillman Bruce (pictured right) handles complex business bankruptcy and restructuring matters as well as a variety of commercial disputes in both federal and state courts throughout Florida with the law firm of Berger Singerman, LLP. The Membership Reception Opens the Year for the South Palm Beach County Bar Association by Christopher Sajdera On September 4, 2014, the SPBCBA held its second annual membership reception at the Brio Tuscan Grill Restaurant located at the Town Center Shops. The membership reception welcomed all current members, prospective members, and renewing members of the bar. The event was well attended, as over 90 members, including members of the judiciary, joined SPBCBA for the start of the fiscal year. The event was held on the patio and adjoining room of the restaurant, where attendees enjoyed delicious Italian dishes and cocktails. The SPBCBA first introduced this new event last year, and hopes to continue to make the membership reception an annual event that is free to its current members. The SPBCBA would like to thank the YLS Section Board of Directors, and co-chair Christopher Sajdera for planning and hosting this event. 23

24 Florida Supreme Court to Address Mandatory Use of Automated External Defibrillators (AEDs) by Craig M. Goldenfarb A celebrated high school football player suffered a fatal heart attack during a basketball game on a Florida A&M University campus this year, despite the presence of AEDs on campus. A 15-year old runner collapsed on Plant High School s track field in Tampa, Florida, also this year, and again, no AED was used, and he died. Under current Florida law, there is limited recourse when this type of tragedy occurs. However, the law may change. There is one young man, whose legal case is finally getting the attention it deserves from the Florida legal system, which will bring the sad issue of unused AEDs to a head. His name is Abel Limones, Jr. Why is Abel s case important? It s important because his family is appealing a decision by the Second District Court of Appeals that found his school was not negligent when they failed to use an available AED while he suffered a massive heart attack on a soccer field, despite the fact that an AED was just ten or twenty feet away in a golf cart. A decision by the Florida Supreme Court in the family s favor, reversing the lower Court s decision, could potentially open the door to dozens of cases just like his, which are too difficult to get into Florida s courtrooms today due to current Florida law. Florida AED laws are good in theory, but not in practice Florida is what we can call a progressive state in this niche area of law that stipulates how and when Automated External Defibrillators (AEDs) should be used. In fact, according to the National Conference of State Legislatures, Florida was the first state in the country to enact a public access law for AEDs, back in Following Florida s lead, all fifty states now have established at least basic laws regarding the public use of AEDs. But the problem, according to many observers, including this author, is that what s fundamentally missing from our laws is accountability. This is precisely the issue that the personal injury lawyers representing Abel s family are interested in addressing. They have recently been granted the chance to do so by the Florida Supreme Court, which has agreed to hear an appeal of a lower Court s decision to dismiss the Abel family s negligence claim against the Lee County School Board and School District. A brief background on AED laws in Florida and Abel s case. Florida Statute requires that any buildings owned or leased by the State of Florida for public use after 2001 have AEDs on-site, available, and in working order. In addition, Florida Statute requires all Florida public schools that are members of the Florida High School Athletic Association also have AEDs. Florida Statute authorizes law enforcement to carry AEDs in their vehicles, and in addition, encourages anyone who could or should be expected to be in a position to render aid using an AED (a school employee or volunteer, for example) to someone suffering from a heart attack to have undergone proper training, and be proficient in the use of an AED. However, the case of Abel Limones, Jr (Limones, Abel Sr. v. School District of Lee County and School Board of Lee County), involves young Abel, who at just 18 years-old, collapsed on a soccer field while school officials stood around him, within reach of a working AED. Not once during the ordeal did anyone retrieve or attempt to retrieve or use the AED, though a request was made by at least one school official who was present. Though he was resuscitated twenty minutes later by emergency personnel using their own AED, by then he had sustained major brain damage. If the available AED had been used during the first minute or two of the onset of the heart attack, he could have been shocked much earlier. Thus, the school staff was negligent by not using the AED that was available, the attorneys for the family argued. The Second District Court of Appeal threw out the case based on the question of whether reasonable post-injury efforts required the determination that an AED should have been used. The Court decided that wasn t part of the scope of the school s duties of care. The Second District also found that the case should be dismissed because, though the school was required to have an AED on premises, it was not, nor by extension its staff, obligated to actually retrieve and use the AED. The Cardiac Arrest Survival Act (Florida Statute ), the School District argued, provides immunity from civil liability to anyone who voluntarily renders aid to a victim of a perceived medical emergency using an AED, and the school is therefore protected. Plaintiffs argued unsuccessfully that the Act only provided immunity to those who attempt to render care, but not to anyone who made no attempt at all. The Florida Supreme Court could potentially pave the way for future AED negligence claims. In agreeing to hear Abel s case, the Florida Supreme Court has accepted jurisdiction to decide whether the Second District s decision directly conflicts with years of established Florida negligence law. The Limones family is essentially asking the Court to decide whether Florida laws that require the School Board to render post-injury aid, and separate Florida laws that require the placement of AEDs, together, created a duty for a person, business, or in this case, a school, which has the ability to render aid using an AED to actually render that aid. Continued on next page 24

25 If the Supreme Court rules in Limones favor, that could open the doors to litigation for many other cases, and a chance at real justice for the families of victims who have died or nearly died from a heart attack while an AED was present, but went unused. Craig M. Goldenfarb is President at The Law Offices of Craig Goldenfarb, P.A. He serves as the Chairman of the AED Litigation Group for the AAJ. Mr. Goldenfarb is one of the few national attorneys practicing the niche area of tort law involving the public use of AEDs. What You Need To Know About Care Management by Ferial F. Andre, RN, CCM, CAEd, CDP Professional Care Management organizations are fast becoming a highly respected and necessary service provider for many individuals trying to navigate the complicated and overwhelming health care system. In a time where many professionals, individuals and families are struggling with the ever increasing maze of health care providers, insurance companies, legislation, and legal issues there is a beacon of light to be found in the professional Care Manager. Care Management focuses on delivering individualized services to clients in order to improve their healthcare outcomes and ensure that all physical, psychosocial, environmental, and emotional needs are being met in the most effective and cost efficient manner. Care Management is a collaborative process of assessment, planning, facilitation, care coordination, evaluation, and advocacy for options and services to meet an individual s and family s comprehensive health needs. Very often a family member or non-healthcare professional is cast in the role of becoming the person who is responsible for attempting to understand and execute a plan for an individual who is no longer able to make life altering decisions for themselves. Acute or chronic illness, the death of a spouse or child, caring for a person with special needs, a change in family dynamics, or simply the aging process itself may all be cause for the need of a third party to step in and lend a hand. Very often just the thought of tackling all the hurdles of today s healthcare system creates a tremendous amount of tension and anxiety not only for the individual but for the family member, friend, or non-medical professional charged with the responsibility of this daunting endeavor. A simple example of the complications associated with the care of an individual is as follows: An individual, because of health related issues, will need to see more than one doctor simultaneously. In order for each doctor to know what the other one is doing, what medicines were prescribed, and to keep up with the individual s progress, someone will need to meet with each doctor or require reports from each doctor so advice and care from one does not overlap or conflict with one another. These communications may also include coordination of ambulatory or standalone facility services, home health services, acquiring durable medical equipment, coordinating and deciphering insurance company benefits and payments, as well as ensuring the individuals living environment is safe and appropriate. All this must be coordinated before any other issues are addressed. How is the individual going to get their medication? Will the individual be able to self-administer any prescribed medications? Who will make follow up health care provider appointments? How is the individual going to be able to perform the activities of daily living? Which county are you in? What time is it? What were you drinking? Who will attend MD visits, tests, and procedures to make sure that the individual understands and is receiving appropriate care and follow up? Continued on next page 25

26 The aforementioned questions are just a drop in the bucket of what is required when taking on the immense responsibility of an individual s care. The professional Care Management organization is the best option for any individual, family member, or non-medical professional faced with the overwhelming task of assuming the care of an individual regardless of the level of need. A Care Manager will evaluate each client as a whole and address all existing and new concerns as well as adjust an existing care plan as appropriate. The professional Care Manager will also coordinate the referral of new services as needed and will identify the target of previously arranged services to determine the appropriateness of said services, such as requiring a greater level of care or the need to seek treatment from a different type of medical services provider. The Care Manager is not only the coordinator of service delivery, but most importantly acts as the individuals advocate while maintaining that outcomes, quality of care, and costs are all appropriate to the individual and their ongoing needs. In lay man s terms a professional Care Manager may function as the captain of the ship, as their designated role is designed to provide both leadership and management for individual care plans and to help guide the individual, family members, and nonmedical professionals through the sea of healthcare providers, medication management, insurance companies, and the bureaucracy of health care facilities that have become the norm. Overall, the role includes the components of patient assessment, planning of care, coordinating and facilitating ongoing plans for clients, evaluating healthcare services provided, reassessing, cost and quality containment strategies and client advocacy. This important role is most often undertaken by registered nurses, licensed practical nurses, and social workers. The role is very broad today as the needs and goals of the individual, family members, and other professionals involved with coordination of all aspects of an individual s life plan vary. As mentioned, the role of the Care Manager is often broad based, but can be narrowly focused as well. Some of the major role components include: Providing care team management, leadership and coordination; Providing assessments of clients, including environmental, clinical and psychosocial; Working with the entire health care team to achieve the goals and expected outcomes for clients; Providing oversight of the client s plan of care; Providing frequent reassessments and evaluations; Collaborating with other professionals and facilitating needed changes to an overall plan of care; Coordinating treatment planning with the client s insurance company or other payers; Providing education to clients and families/significant others, and other professionals as defined by need; Ongoing assessment and reassessment of a client s environmental surroundings, etc. The list is endless. The simple message is that whether an individual requires a tremendous amount of attention and service coordination or simply needs one aspect of care and/or daily living addressed, the Care Manager is the means to get the task accomplished while maintaining the dignity of the individual and lessening the burden on family members and non- medical professionals. Ferial Andre is the President/CEO of Regal Care Management & Regal Home Health 26

27 Who Has the Right to Bring an Action for Accounting Malpractice? by James T. Ferrara Originally under Florida law, a party was required to show a direct professional relationship with an accountant in order to bring an action for malpractice. Investment Corp. of Florida v. Buchman, 208 So. 2d 291 (Fla. 2d DCA 1968), cert. denied. 748 So.2d 748 (Fla. 1968). In that case, Florida declined to expand an accountant s professional liability beyond those with whom there was privity. At that time around the country, different states had adopted four different theories on who could bring a malpractice action: 1. An accountant was only liable to one with whom he was in privity, except in cases of fraud; 2. An accountant was liable to third parties in the absence of privity, under those circumstances described in Section 552, Restatement (Second) of Torts; 3. An accountant was liable to all persons who might reasonably be foreseen as relying upon his or her work product; or 4. An accountant s liability to third persons would be determined by balancing various factors, including, the extent to which the transaction was intended to effect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the accountant s conduct and the injury suffered, the moral blame attached to the account defendant s conduct, and the policy of preventing future harm. In 1990, the Florida Supreme Court revisited the issue and adopted the rule from the Restatement (Second) of Torts Section 552. First Florida Bank, N.A. v. Max Mitchell & Co., 558 So. 2d 9 (Fla. 1990). Today in Florida, in the absence of privity, a cause of action based upon negligence can be maintained against an accountant but only by those persons or classes of persons whom the accountant knows and intends will rely on his opinion, or whom he knows his client intends will so rely. The Max Mitchell decision rejected the broad reasonably foreseeable standard in favor of a more restrictive test. Now, liability is limited to those persons whom an accountant knows will rely on his opinion, rather than those he should have known would do so. This narrower limitation recognizes the reality that accountants lack control over the use of their reports by clients. To have standing to bring a malpractice action, there must be some conduct on the part of the accountant linking him to that party, which shows the accountant s understanding of that party s reliance. In re: Checker s Securities Litigation, 858 F. Supp. 1168, 1179 (M.D. Fla. 1994). The adopted approach allows for liability to be extended beyond those persons in privity with the accountant, but only when the accountant knows at the time the work was done that a limited group of third persons intend to rely upon the work for a specific transaction. Absent that knowledge and the use of that information for the precise or substantially similar transaction known by the accountant, neither the Restatement nor Florida law permits liability. Machata v. Seidman & Seidman, 644 So. 2d 114, (Fla. 4th DCA 1994). James T. Ferrara is a sh areholder at Shraiberg, Ferrara & Landau, P.A., a firm which concentrates in the areas of business litigation and commercial bankruptcy. Mr. Ferrara is a Martindale Hubbell, A-V Rated attorney, who serves on the SPBCBA s Board of Directors and on the Florida Bar s Civil Procedure Rules Committee. 27

28 To Breathe or Not to Breathe: Should a Breathalyzer Test be Refused? by W. Craig Lawson Upon being introduced as a criminal defense attorney, I am immediately asked, Should I provide a breathe sample when stopped for driving under the influence? The answer at one time was always a simple, No. However, when making that decision there are certain things you must consider. The first decision you must make is whether or not you want to provide the police with the evidence to convict you? I am of the opinion that you should never speak to the police or give them any evidence to use against you. I have handled thousands of DUI cases and clients are often times surprised at all of the evidence police officers gather and record during a DUI arrest. Aside from the obvious driving patterns, officers record your red glassy eyes, slurred speech, the strong odor of an alcoholic beverage, and how difficult a time you have drawing your license and registration from your wallet. They also record whether or not you supported yourself against the car when getting out and during the interrogation. When the officer finally has you out of the car, you are positioned so that your every move is recorded on video. The officer asks you if you would submit to field sobriety exercises. Although the officer will not tell you, these exercises are voluntary, you are allowed by law to refuse to perform these exercises. Keep in mind that if you perform these exercises, you are giving the officer the evidence he or she needs to convict you. If you agree to perform these exercises, you are then asked to come and stand in full view of the hidden camera. The officer then can show the video as he or she tells the Jury how badly you performed and your demeanor shows your inebriation. Once you agree to perform the exercises, you are placed in the starting position. In this starting position, you are asked to stand, one foot in front of the other, with the heel of one foot touching the toe of the other. This narrows your stance and makes it more difficult to maintain your balance. Test yourself now, can you do it at midday in your office, let alone on the side of the road after a few drinks? The officer will then give you a series of instructions on how to complete the series of exercises. When the officer finishes the instructions, he or she will ask if you understand. The officer will then be able to tell the jury that the exercises were explained to you, you said you understood his instructions, but you could not follow them. When you have completed your exercises, the officer has one last exercise for you to perform, you will be asked to turn around and face away from the officer, lean forward and extend your hands behind you. THIS IS A TRICK! You are going to be handcuffed and placed into the back seat of the patrol car for the longest ride of your life, the ride to the County Jail. In my years of handling DUI cases, I have never seen an officer taking notes during the field sobriety exercises, which leads me to believe that when the officer completes his or her report almost an hour later, what is being written is strictly from memory. Here is another tip refuse to perform the field sobriety exercises. Lean against your car, stand with your feet shoulder width apart and, as politely as you can, refuse to do the tasks; Officer, I would love to do these tasks, but first I would like the presence of my attorney. The officer will then explain that you are not entitled to an attorney at this point and you will be arrested. You have a much better chance of being found not guilty if you do not give the police evidence to use against you, by performing the field sobriety exercises. While in the back seat, you should know that you are on camera, every obnoxious comment you make to the officer will be remembered or recorded so the officer can tell the jury just how badly you behaved. This is not a good time to tell the officer that his parents were not married when he or she was born nor is it a good time to discuss the officer s weight problem! Juries will almost always convict the arrested driver for being a JERK to the officer. Upon arrival at the breath testing facility, the officer will sit you down while he or she completes the reports. Unbeknownst to you, the officer is completing a 20- minute observation period, in which time the officer must make sure that you have not regurgitated or taken anything by mouth. You will then be led into the video recorded room where the officer will ask you to stand on the X. There are often times a series of vertical lines painted on the wall behind the X to show the jury how much you sway and that you are unable to maintain your balance. Here is the next tip: when you get to the X, stand with you feet shoulder width apart. The officer ask you to provide a breathe sample. If you decide to refuse to provide the sample, the officer must read you the implied consent warnings. The implied consent warnings advise that if you refuse to provide the breath sample, your license will be revoked for at least one year. The officer does not tell you that you have the right to receive a work permit or hardship license after 90 days nor will the officer tell you that you can challenge your driver s license suspension. After the implied consent warning, you will be officially placed under arrest and read Miranda warnings. Here is the next tip: wherever and whenever you hear the words, You have the right to remain silent, Be quiet! Don t answer another question! You are only required to give your name, address, and date of birth. The officer will then ask you a series of questions designed to drive the nail further into your coffin. Where were you when you were arrested? How many drinks did you have? When did you have your first drink? Continued on next page 28

29 What road were you driving on? Where were you coming from? When was your last drink? How did you consume your drinks? When did you last eat? What did you eat? Do you feel the effects of the alcohol? All of this so that the officer can tell the jury about your inappropriate or incorrect answers. In addition, the state s expert will use your answers during testimony to calculate just how much you actually had to drink. breath sample. So, here is the final tip: Just remember that everything you do or say will be used against you in a court of law. W. Craig Lawson is a criminal defense attorney at Craig Lawson, P.A. Mr. Lawson is also a Co-Chair of the SPBCBA s Criminal Practice Committee. If this is not the first time that you refused the breath sample, you will be charged with a misdemeanor for refusing. Because attorneys are ethically bound and cannot tell anyone to commit a crime, I cannot give you a blanket statement to always refuse to provide a 29

30 The Power of Balance by Craig Richman My Yoga Journey to Mindful Happiness What initially looked like an avenue to get in shape turned into a life-changing experience. Like most highly performing professionals, I gave all of my effort to my business and community affairs. I did not have a balanced life nor did I take care of myself. I was making poor choices as a result of my lifestyle and my health suffered as a result. It wasn t about the money. Deep down, I knew I had to make long-term changes, but I did not know what was about to unfold! After three months of practicing yoga, I was completely obsessed with the practice. I began to feel better and could not wait to get back on the mat after I got off. Most of my teachers have become my yoga advocates and have provided me incredible love, motivation, support and guidance. I was blessed to be granted the opportunity to enroll in a vinyasa yoga teacher training. I was the oldest student (56) of ten whose ages varied from early twenties to early fifties most have been practicing yoga for years. Frankly, the four intense months of teacher training were perhaps the most uplifting and enriching experience of my life. Yoga has changed my life both personally and professionally. In fact, the American Osteopathic Association shares that yoga can lessen chronic pain such as lower back, arthritis, headaches and carpal tunnel syndrome. It can also lower blood pressure and reduce insomnia. Many studies conclude that after a few months, yoga can provide improved sense of balance, lower blood sugar levels in Diabetes, relief from chronic back pain, anxiety relief, reduced chronic neck pain, improved sexual function, improved lung capacity, lower blood pressure and weight loss. Outside of the physical benefits, I have developed inner peace, self-awareness and self-discovery all on a path to enlightenment and happiness. The answers are never out there. All the answers are in there, inside of you, waiting to be discovered. The Quest for the True Self We have to learn to be content with ourselves. The notion of the person with the most toys wins is no longer prudent in our search for happiness. Buddhism teaches us about the wanting mind as a constant craving for immediate gratification; however, the joy you feel in the material world is short lived and non-sustaining. Happiness or contentment starts within us. I am having a lot of conversations around downsizing in an effort to make life more simple, less stressful and clearly more meaningful. Yoga will start the journey to understand our true selves and begin the process of creating inner peace. In yoga, our spiritual development does not require us to leave our everyday lives for some transcendent spiritual plane-life itself is the path. I believe the path of enlightenment is worth pursuing. The Effect on My Practice We are the authors of every next moment. I no longer allow my practice to dictate my life. I now choose to live life on my terms and have built my practice to accommodate my choice for balance. I have let go clients who no longer served me. You see many of us serve clients and justify the relationship based on revenue, not on whether the relationship is serving you. Why not work with clients who truly appreciate your talents and commitment to assist them with their legal matters? We do not allow the behavior of others to destroy our inner peace. Dalia Lama Our work on the mat should be effortless. As a result of building strength and technical expertise, we are able to transition gracefully through our asanas (poses). Yoga means union which develops the perfect relationship between the body and the mind. Our investment philosophy is also effortless. We believe in capitalism and the ability of the markets to provide investors returns of the markets, not money managers. We believe in low cost, tax managed investment strategies that truly benefit the retail investor, not benefit Wall Street. Personal Message to Lawyers I have taught many lawyers to develop inner peace and improve their health through yoga. I believe you will become more effective mindful lawyers as a result. We have to learn to live in the present moment, for this moment we call now is all that exists. I invite you to try yoga and know that a transformation of incredible proportions is possible with the hard work on the mat. My journey continues on the mat and the possibilities are endless! It is not whether you can touch your toes, but what you learn on the way down! Namaste Craig G. Richman, CLU, ChFC, AIFA, CDFA President & Chief Investment Officer of Richman Capital Management. Craig is a certified yoga teacher (RYT200) that teaches privates, corporate and charity events. 30

31 A Retirement Income Planning Primer by Frank Rekas, GR Financial Group, representing Metlife When it comes to retirement planning, individuals need both a map and directions, along with someone to help them on their journey. Particularly for those who may have been greatly affected by the market swings in the last few years, creating a reliable income stream in retirement may be the furthest thing from one s mind. However, taking a few small steps now can lead to large rewards in the future. Save, save and save Start off with the basic principle of money management saving. Whether you re saving for a car, a new home, college or a vacation, saving for retirement, is no different. Make every effort to save the maximum allowed by your defined contribution plans that is, i.e. 401(k)s or 403(b)s. And, be sure to at least set aside enough to get the employer matching contribution. If you re already making the maximum contribution, consider funding an individual IRA. If you change jobs, don t forget to take your retirement money. In some cases, as in 401(k)s, you may be allowed to roll the contributions over into your new plan or into a traditional IRA. Taking a lump sum distribution will be a taxable event (based on your ordinary income tax rate), and, you could incur a 10% income tax penalty for taking distributions early, before age 59 1/2. Many younger workers make this mistake. Take steps to create reliable income There is no magic number, but 60 percent of pre-retirement income before tax is a good starting point for income to cover essential expenses in retirement. Social Security and pensions are great sources of dependable income, but most people will need more stable, lifelong income. Start protecting your future income by putting a portion of your savings into an annuity and adding to it over time, or purchase an income annuity when you retire to cover any remaining expense gaps. Through annuitization, these products can provide a guaranteed income stream during retirement that will help supplement Social Security and pensions. Have liquidity AND growth Having cash on hand for the unexpected is smart. There could be an unexpected expense, such as a health need, a job loss or a change to your income perhaps from an earlier-than-planned retirement date. Keep in mind, too much cash in the bank earning little interest can be detrimental to your retirement savings. There are a number of financial products that can let you access some cash when it s needed and still keep your money working hard for you. For a list of the options, as well as what makes sense for you, consider speaking with a financial services professional who can suggest products and services to help meet your needs. Know what you want your retirement to look like Many of us know that we may need to work longer in order to save for retirement. For some, the idea of retirement may be spending time traveling or fulfilling a lifelong urge to go back to school for higher education. For others it may be spending days working parttime or volunteering at a non-profit near to your heart. Figuring out what you may want your retirement to look like, will also help you take the steps necessary to get there. This article appears courtesy of Frank Rekas. Frank is a Registered Representative offering securities, including variable products through MetLife Securities, Inc.(MSI) (member FINRA/ SIPC), New York, NY Insurance and annuities issued by Metropolitan Life Insurance Company (MLIC), New York, NY MSI and MLIC are MetLife companies. He focuses on meeting the individual insurance and financial services needs of people in business and executive markets. You can reach Frank at the office at 5900 N. Andrew Ave Ste 900, Ft. Lauderdale, FL and (954) Pursuant to IRS Circular 230, MetLife is providing you with the following notification: The information contained in this document is not intended to (and cannot) be used by anyone to avoid IRS penalties. This document supports the promotion and marketing of insurance or other financial products and services. Clients should seek advice based on their particular circumstances from an independent tax advisor since any discussion of taxes is for general informational purposes only and does not purport to be complete or cover every situation. MetLife, its agents and representatives may not give legal or tax advice. Any discussion of taxes herein or related to this document is for general information purposes only and does not purport to be complete or cover every situation. Tax law is subject to interpretation and legislative change. Tax results and the appropriateness of any product for any specific taxpayer may vary depending on the facts and circumstances. You should consult with and rely on your own independent legal and tax advisors regarding your particular set of facts and circumstances. Frank Rekas is a Registered Representative offering securities, including variable products through MetLife Securities, Inc.(MSI) (member FINRA/ SIPC), New York, NY

32 SPBCBA s Annual Board Retreat by Mark Osherow, President Elect During the weekend of July 25, 2014, the SPBCBA s Board of Directors held its annual retreat at the Ritz Carlton Beach Resort in Naples, Florida. The Board welcomed new president Marc Kaufman, as well as our newest Board member Dan Kaskel. While the Board members and their families were able to enjoy the wonderful amenities of the resort, the annual retreat allows the Board two days to meet and plan for SPBCBA s coming year s activities. Important items addressed this year included approval of the committee chairs, planning for the committee chair luncheon and membership reception, assignment of Board members to oversee the association s major annual events (including the tennis and golf tournaments and the holiday party), and the scheduling of these and other SPBCBA events. During the weekend, the Board agreed that the 54th Installation Gala would be held on Saturday, May 30, 2015 SO MARK YOUR CALENDARS TODAY! and tentatively scheduled the Board s 2015 retreat for the weekend of June 20, The retreat also allowed the Board the opportunity to reflect on the past year s activities, to plan initiatives to attract new members and to discuss ways to continue fostering sponsorships which are critical to SPBCBA s success and programing. The Board also expressed its thanks to our Executive Director, Lisa Hurley, for her hard work and dedication in planning the retreat, in addition to all of SPBCBA s other social, community and educational events. The Board members also enjoyed the opportunity to socialize on Saturday night at a dinner held in a private dining room at the resort. Social events like this encourage collaboration and camaraderie among the Board members, all of whom work closely and diligently throughout the year, including their once monthly meetings, to ensure the success of SPBCBA. The Board is looking forward to another excellent year serving our constituents, the legal profession and the community! Mark R. Osherow is Of Counsel with the statewide law firm Broad and Cassel in its West Palm Beach office. He is board certified as a specialist in business litigation by The Florida Bar and is currently the President-Elect of the SPBCBA. East Boca Raton Law office has single (or multiple) offices available for rent, commencing on November 1st. The rental rate includes receptionist, assistant space, conference rooms, and parking. Please call Christopher Sajdera at to discuss pricing and options. Views and conclusions expressed in articles and advertisements in The Advocate, and any other publication of the South Palm Beach County Bar Association, are those of the authors or advertisers and not necessarily those of the officers, directors or staff of the South Palm Beach County Bar Association. Further, the South Palm Beach County Bar Association, its officers, directors and staff do not endorse any position, product or service advertised. Our copy deadline is at the discretion of the Editorial Board, but is generally two weeks before the announced publication date. At this time The Advocate is being published on-line and disseminated via only, although the Association reserves the 32

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