1 Sep. Oct Columns 2 President s Message 3 Editor s Comments 3 Young Lawyers 3 100% Club 4 Letters, Faxes, 5 Ethics You Can Use For the members of the Clearwater Bar Association Come On Down for the Wild, Wild West Bench & Bar-B-Que by James E. Royal 7 Avocat de Famille Put on your cowboy duds 9 Criminal Practice and mosey on down for 11 The Rules Rule 11 Bits & Briefs 17 Tax Tips & More 21 Real Life Practice the Wild, Wild West Bench & Bar-B-Que on October 21, 2011, startin at 23 New & Reinstated Members high noon! No city slicker suits, 23 Address Changes ties, and none of them fancy shoes! We 25 Member Benefit Program mean it this time! 27 Classified 28 Calendar The Bench & Bar-B-Que is again a joint venture between the Clearwater Bar Association and the St. Petersburg Bar Association. The event will begin at 12:00 noon Bar News 1 Wild, Wild West Bench & with an informal BBQ lunch and vendor fair on the grounds of Stetson Law School. opportunity to socialize and network you will also have the Bar-B-Que 6 Estate Tax Planning Book Breakout sessions begin after lunch and end with your colleagues and judges outside of the Available at 5:00 p.m. Be sure to stick around for the courtroom. 6 Welcome TFB Registered Paralegals reception afterwards. The cost is only $100 if you are a member Our chief judge and five Florida Bar of the Clearwater Bar Association, St. Petersburg Bar Association or West Pasco Bar As- 8 Paddleboarding Social for Lawyers Counsel will lead us through this year s plenary session, Ethics Update: Top Five Disciplinary Complaints & How to Avoid Them. Chief more than welcome to join in the fun, food, sociation. Even if you re not a member, you are 10 Making Life Easier For You! 14 Family Fun & Fireworks Night Judge J. Thomas McGrady and Judge Patrick and fraternizing, and some good learnin. 16 Sept. Member Luncheon 24 New Member Benefit 24 Hispanic Legal Workshop Caddell will present information on The New Justice CCMS, Computerized Case Management System, Judicial Independence, and How The price for non-members is $200. Judges, government attorneys and staff are only $50. Did I mention you also receive CLE credits or Features to Assist With Court Issues in the Upcoming NALA credit for attending? Legislative Session. Sponsorship opportunities are also available. 4 Guardian ad Litem Training 8 Pinellas Chapter of FAWL 10 Pro Bono Opportunity Informative breakout sessions for practitioners and judges of family, probate, criminal, and civil trial practice follow the plenary. If you or your firm would like to sponsor the Bar-B-Que, you ll get even more out of the event. This includes recognition on the Again this year we will have a separate signage at the event, recognition on written 10 Law Library Reception breakout session for staff and JAs, so bring materials, sponsor ribbons for registrants at 12 Juvenile Arbitrators Sought your entire office! In addition to the great information you will receive from our 13 US Supreme Court Review see Bench & Bar-B-Que on page 4 sessions,
2 President s Message by Kim Campbell 2 SEPTEMBER/OCTOBER 2011 RES IPSA LOQUITUR How do you know something is really, really important? Almost immediately after our membership luncheon focusing on professionalism, the Supreme Court of Florida revises our Oath of Admission to include our discussion. Well, okay, that may not be the SOLE reason for the revision, however, I am sure it was a determining factor! We received many compliments on the presentation about the Sixth Circuit s Rules of Professional Conduct at the luncheon on September 8, I would like to take this opportunity to thank our presenters at the luncheon, Chief Judge Thomas McGrady, Judge Pamela Campbell, Judge Jack Helinger, Larry Hart, Esq., and Andrew Sasso, Esq. Individuals such as these are the epitome of professionalism who go above and beyond! The practice of law can be a very stressful profession. Essentially, we hear only one side of the story, our client s. We are expected to advocate on behalf of our client, sometimes without the whole story. Many times this causes tension between both counsel or opposing parties. This tension often becomes apparent not only in the courtroom, but also in our demeanor at depositions, mediation and even written correspondence. The America Board of Trial Advocates (ABOTA) has recognized this trend and sought to increase awareness of the importance of civility in the practice of law. The Florida Bar likewise has recognized the necessity for civility in the inherently contentious setting of the adversary process In re Snyder, 472 US 634, 647 (1985). To continue to encourage young lawyers, and those of us not so young, new language has been added to the Oath of Admission. This language is intended to recognize the importance of respectful and civil conduct in the practice of law, specifically, To opposing parties and their counsel, I pledge fairness, integrity, and civility, not only in court, but also in all written and oral communications. I encourage everyone to copy the new Oath, which is available on the Clearwater Bar Association s website and display it in your office. This will give us a constant reminder to ensure we practice civility to all parties, in every way. As we prepare to enter the holiday season (yikes!), keep in mind, even after that one contentious case, we are still colleagues, and hopefully still friends. This is your last issue of Res Ipsa Loquitur, if you have not paid your dues. Call or log on to clearwaterbar.org to pay. W.H. Simon & Company, P.A. Thanks You For Sending Us Your Problems For more than 20 years, W. H. Simon & Company, P.A., CPAs, have been representing our clients (and yours) before the IRS. To our referring Attorneys, CPAs and Enrolled Agents, we would like to thank you for sending us your clients with IRS situations requiring our experience. When the IRS calls your client, call us. We have a proven track record. Managed by a former IRS executive that knows the Inside of IRS. W.H. Simon, CPA & Former irs executive eric SCHmitz, CPA & Former revenue Agent Your problem with the IRS is OUR business Call W.H. Simon & Company, P.A Published by The Clearwater Bar Association, Inc. 314 South Missouri Avenue, Suite 107 Clearwater, FL Telephone: (727) Fax: (727) Website: O F F I C E R S Terms Expire 2012 Kimberly A. Campbell, President Bridget A. Heptner, President-Elect James E. Royal, Secretary Michael J. Faehner, Treasurer Donald S. Crowell, Past President D I R E C T O R S Terms Expire 2012 Doneene Dresback Jason C. Ester John Davis Fernandez Myriam Irizarry D I R E C T O R S Terms Expire 2013 Joshua T. Chilson Sherwood Flip Coleman Gary P. Cors Sherri M. Stinson EX OFFICIO Colleen A. Carson, YLD President Michelle E. Nadeau, YLD President-Elect Andrew B. Sasso, TFB Board of Gov Karen France, Executive Director EDITORIAL C O M M I T T E E Sarah Manthey, Co-Editor Scott E. Schiltz, Co-Editor Karen France, Production Manager Colleen Pruitt, Advertising Manager Linda Ward, Production Assistant The Res Ipsa Loquitur supports participation of the membership in production of the publication. We encourage you to submit articles and letters. However, we reserve the right to edit any submission and to publish only those articles that we, in our sole discretion, deem appropriate. NOTE: The comments, messages, statements and opinions, legal or otherwise, expressed in the articles herein are exclusively those of the author and shall not be considered to be those of the Clearwater Bar Association, its officers, directors, agents, this publication, its editors or staff. Additionally, the comments, statements and articles contained herein are general in nature and should not be relied upon as a basis for any legal opinion, action or conclusion on the part of the reader with respect to any particular set of facts or circumstances.
3 Editor s Comments by Sarah J. Manthey Hot off the press! We welcome Florida Registered Paralegals to join the ranks as official CBA members. We are very excited for the opportunity to broaden CBA membership to include these professionals. The Florida Bar defines a Florida Registered Paralegal as a person with education, training, or work experience, who works under the direction and supervision of a member of The Florida Bar and who performs specifically delegated substantive legal work for which a member of The Florida Bar is responsible. With just about two years under my belt, I am thankful to paralegals for offering their experience and immeasurable assistance as I navigate these first few years of practice (you know who you are!). Paralegals are by our sides in the trenches helping us manage our case load and performing substantive legal work on a daily basis. Paralegals keep abreast of technology, help us service our clients better, and manage the document intensive world we live in. Please invite the Florida Registered Paralegals in your office to join the CBA. While you re at it, extend a thank you to the paralegal in your office who helps your practice run more smoothly! Please check out the CBA website for more details on membership benefits. The author is co-editor of Res Ipsa Loquitur and practices with Johnson Pope Bokor Rupple & Burns LLC in Clearwater. Young Lawyers by Colleen A. Carson As this is my first column as the Clearwater Bar Association Young Lawyers Division President, I would like to take the opportunity to thank the YLD board members for their hard work and dedication, including our President, Joshua T. Chilson. The YLD had an eventful summer. Our June meeting was sponsored by WestlawNext who provided a CLE on WestlawNext and then treated the YLD to a Dunedin Blue Jays baseball game. We also had a great turnout at our July meeting. During our August meeting, we purchased and stuffed 116 backpacks, which were donated to the Highpoint Family Center in Clearwater and Woodlawn Academy. We have an exciting Fall planned. In addition to monthly meetings, we are working on scheduling and holding another Interviewing for Success program, which will provide at risk teens and teens aging out of foster care with the tools and knowledge they need to draft a resume and cover letter, administer mock interviews and provide each participant with an interview outfit. We are also planning an afternoon at the courthouse which will provide young attorneys the opportunity to become better acquainted with the recording department and courthouse, as well as meeting a few of the judiciary and clerks. In the spring of 2011, the YLD received a grant from The Florida Bar Young Lawyers Division and Florida Bar Foundation to purchase adaptive tricycles for disabled Pinellas County elementary school students. We are working to purchase and deliver the tricycles in October. Join us for one of our fun and productive 2011 through 2012 Young Lawyer Division meetings, which are held on the second Thursday of the month at 5:30 p.m. The Clearwater Bar Association web site has a complete list of our meeting days and locations. This author practices in Clearwater with Baskin Fleece Attorneys at Law and is the president of the Clearwater Bar Young Lawyers Division and serves on the CBA Board of Directors. RES IPSA LOQUITUR SEPTEMBER/OCTOBER Congratulations! 100% Club Member Firms Barrett & Barrett Bill Beck Law Law Office of Jonathan James Damonte, Chartered Denis M. de Vlaming, P.A. Robert C. Dickinson III, P.A. Law Offices of Thomas J. Donnelly John D. Fernandez, P.A. Frazer, Hubbard, Brandt, Trask, Yacavone, Metz & Daigneault, L.L.P. Freeborn & Freeborn Golson Law Firm Gruskin & LaBerge, P.A. Gulfcoast Legal Services, Clearwater Office Haas & Castillo, P.A. Richard T. Heiden, P.A. Law Offices of Jeffrey A. Herzog, P.A. Ingram & Eno, P.A. Johnson Pope Bokor Ruppel & Burns LLP Koch and Hoffman, P.A. Kwall, Showers & Barack, P.A. Randall J. Love, P.A. Macfarlane, Ferguson & McMullen McDermott Law Firm, P.A. McFarland, Gould, Lyons, Sullivan & Hogan, P.A. McGuire Law Offices McManus & McManus, P.A. Law Office of Thomas O. Michaels, P.A. Moody and Shea, P.A. O Connor & Associates O Connor Law Group, P.A. The Law Offices of Raymond L. Parri, P.A. Peacock, Gaffney & Damianakis, P.A. Pearse & Stinson, P.A. Peebles & Gracy, P.A. Perenich, Caulfield, Avril & Noyes, P.A. Perenich The Law Firm The Persante Law Group, P.A. Policastro & LeRoux, P.A. Protonentis & Remley, P.A. Reeser, Rodnite, Outten & Zdravko, P.A. Richards, Gilkey, Fite, Slaughter, Pratesi & Ward, P.A. H. Dennis Rogers, P.A. Sasso & Bodolay, P.A. Law Offices of Timothy C. Schuler Staack, Simms & Hernandez, P.A. Strohauer, Mannion & Son, P.A. Sunne Law Group, L.L.C. Swope & Bright, P.A. Tanney & Griffith, P.A. The Thorpe Law Firm, P.A. Tinny, Meyer & Piccarreto, P.A. Tragos & Sartes, P.L. Tucker & Ludin, P.A. Show your firm s support and pride in the Clearwater Bar by becoming a member of the 100% Club. It s easy! Just fax CBA a sheet of your firm s letterhead and a contact name to , and we will do the rest. Questions? Call CBA at Find a CBA application for your firm s non-members at
4 4 SEPTEMBER/OCTOBER 2011 RES IPSA LOQUITUR Guardian ad Litem Training Opportunities There are two opportunities for Guardian ad Litem Training on the horizon. The first begins October 4 and is presented to attorneys and the public by the Sixth Judicial Circuit Guardian ad Litem Program for abused and neglected children. The second is scheduled for November 17 and will be presented to attorneys only to represent children involved in divorce and paternity cases. Become a Guardian ad Litem Training Starts Oct. 4 Over 1000 children in Pinellas County do not have a volunteer Guardian ad Litem. As a Guardian ad Litem, you advocate in court and in the child welfare system for abused, abandoned, or neglected children. The Guardian ad Litem visits the child every month, becomes familiar with the child s case, and makes recommendations to the court to help ensure the child has a safe, caring, and stable home. No prior experience is necessary; you will be well trained and supported by an experienced supervisory and legal staff. The next training class will begin October 4th, and will meet for five weeks on Tuesday and Wednesday evenings from 6:00 to 9:00 pm., at the Criminal Justice Center, th St. N., Clearwater. Once trained, volunteers spend an average of ten hours a month. To attend a half hour informational meeting call Maria at , or go to for more information. Family Law Guardian ad Litem Training Nov. 17 Judge Peter Ramsberger, Judge Jack Helinger, and attorneys Bridget Heptner, Garth Goodman, and Belinda Lazzarra, will present a training session on Nov. 17 from 1-4pm, at the St. Pete Courthouse (CLE credit applied for). Attendees are asked to bring their own lunch. Drinks and cookies will be provided. All attorneys whether practicing family law or not are welcome. The training is sponsored by Community Law Program & the Family Law Sections of the Clearwater & St. Petersburg Bar Associations. RSVP by calling Dianne Jenkins at to reserve space. Do you have a website? How effective is it? Whether you re looking for a website for the first time or simply want your existing site redesigned to make it more effective, call Quill & Mouse Studios, Inc. We offer professionally designed websites, unique to you, at a very affordable rate. Clearwater Bar members receive a 10% discount on all our design services. Letters, Faxes, Dear Karen: Please pass on my most sincere thanks to the Clearwater Bar Association for presenting me with the John U. Bird Distinguished Jurist Award. I have seen the award given to many outstanding judges through the years, and simply to be considered for the award is a huge honor. It is especially meaningful to be recognized in this way by my home bar association. I know that I have said to you and others how fortunate I was to become an active member of the Clearwater Bar. Many of the opportunities that have come my way have been a direct result from being a member and getting to know and work with outstanding lawyers and judges through bar activities. I look forward to many more years of membership and activity in the Clearwater Bar. Again, my thanks to you and the membership for this honor. Very truly yours, Morris Silberman Bench & Bar-B-Que continued from the front page the event, and a big thank you! in the Res Ipsa Loquitur and Paraclete. Sponsorship opportunities range from $250 to $1,000. Contact Karen France at for more sponsorship information. Mark it on your calendars and come join us for a whompin good time. Register now online at or use the form inserted in this issue. Did we mention no suits, no ties, and none of them fancy shoes! The author is co-chair of the 2011 Bench Bar Planning Committee and practices probate and family law in Clearwater at the Law Offices of Thomas J. Donnelly. He is also the Secretary of the CBA. QuillAndMouse.com CompleteWebShop.com
5 Ethics You Can Use by Joseph A. Corsmeier Recent Second DCA Opinion Clarifies Proper Basis for Motion to Disqualify Attorney In a September 21, 2011 opinion, the Second District Court of Appeal granted a petition for writ of certiorari stating that a law firm must be disqualified from representing a plaintiff when it also represented the defendant s former lawyer in a related legal malpractice action. The case is Ironstone Bank v. Frye, --- So.3d ----, 2011 WL , 2011 WL (Fla. App. 2 Dist.). The law firm (Henderson Franklin) represented the plaintiff/bank in an action alleging that the defendant/frye breached the terms of a loan guaranty. The law firm also represented Frye s former lawyer in defending a legal malpractice action. According to the opinion, the pending legal malpractice action included allegations related, in part, to the former attorney s representation of Frye in the same action in which the law firm was currently representing the bank. The allegations in the malpractice complaint also involved the former lawyer s representation of Frye on estate and asset planning matters, during which Frye alleged that his former lawyer gained detailed knowledge of his financial circumstances, which could be used by the bank in collecting a judgment against Frye. The motion to disqualify was denied. The judge stated at the end of the hearing that the basic problem with [Mr. Frye s] position is there is no attorney/ client relationship between Mr. Frye and Henderson Franklin. Therefore, there is no irrefutable presumption because you ve not established an attorney/client relationship. The judge also said that Frye failed to meet his burden to establish the procedural and substantive requirements for disqualification because, number one, Frye and Henderson Franklin never shared an attorney/client relationship, and, number two, there has been no evidentiary showing that the matter in which Henderson Franklin is representing... Trupp and [the Arnstein firm]...are the same or substantially related matters. (emphasis supplied). The written order denying the motion made similar findings and conclusions and cited to the Second DCA s decision in Kaplan v. Divosta Homes, L.P., 20 So.3d 459 (Fla. 2d DCA 2009). The opinion framed the issue as follows: whether Henderson Franklin s access to confidential communications between Frye and his former lawyer through its representation of the lawyer in the legal malpractice action is sufficient to require the disqualification of Henderson Franklin from continued representation of the Bank in the action against Mr. Frye on the guaranty. We conclude that the unfair informational advantage accruing to Henderson Franklin through its representation of Mr. Frye in the legal malpractice action disqualifies it from further representation of the Bank in its action against Mr. Frye on the guaranty. The decision of the Third District in a case involving similar facts, RES IPSA LOQUITUR SEPTEMBER/OCTOBER Adelman v. Adelman, 561 So.2d 671 (Fla. 3d DCA 1990), guides our decision on this point. The opinion concluded that the judge erroneously relied on Kaplan in requiring an attorney/client relationship between Frye and the firm and a showing that the matters were the same or substantially related since the motion was not based on a conflict but on the unfair informational advantage the firm obtained from its access to confidential communications through its representation of the former lawyer and his law firm in the legal malpractice action. Because the Bank s counsel has access to confidential communications between Mr. Frye and his former lawyer concerning the action on the guaranty by virtue of its representation of the former lawyer in the malpractice action, we conclude that the Bank s counsel is disqualified from representing the Bank in the action on the guaranty. The opinion followed Adelman and found that a party moving to disqualify a lawyer is not required to show that an attorney/client relationship existed or that the matters are the same or similar if the current lawyer/law firm has gained an unfair informational advantage. Joseph A. Corsmeier is a Martindale-Hubbell AV rated attorney who practices in Clearwater, Florida. His practice consists primarily of the defense of attorneys disciplinary and admission matters. He represents all professionals in discipline and admission matters before all state Boards and Agencies. His practice also includes ethics advice, expert opinions on ethics, malpractice, disqualification, attorney s fees, and risk management issues. His practice also includes workers compensation and labor law. He is available to answer attorney ethics and professionalism inquiries, provide expert opinions on ethics and malpractice issues, assist attorneys to insure compliance with the Rules Regulating The Florida Bar, and in defense of attorneys before the Florida Board of Bar Examiners and in Florida Bar disciplinary matters.
6 6 SEPTEMBER/OCTOBER 2011 RES IPSA LOQUITUR Estate Tax Planning in 2011 and 2012 As commentator and author Steve Leimberg of Leimberg Information Systems wrote in his Estate Planning Newsletter #1836, Estate Tax Planning in 2011 and 2012, written by Clearwater Bar members Alan S. Gassman, Christopher J. Denicolo and Kenneth J. Crotty, provides a practical, client-centric approach to understanding and maximizing the potentially time-limited opportunities possible though the Tax Relief, Unemployment Insurance Reauthorization, and Jobs Creation Act of 2010, including: Opportunities to shelter a larger portion of the estate from tax, Why it makes sense to make gifts now, Planning for the moderately wealthy client, Why this is the time to consider a dynasty/asset protection trust, The continued role of life insurance, The new portability provision and why it is not a panacea for planners, Many examples, client letters, trust language, and more. What s special about this desk reference is that it is loaded with clear, succinct summaries, charts client letters, and vocabulary lists. Here are some of them: Strategic Planning Based on Probabilities New Estate Tax Law Summary Checklist for helping clients During 2011 and 2012 Years Dear Married Client letter Multiple Grantor Trust System illustrations GRAT/Promissory Note/SCIN/ Private Annuity Alternatives Welcome Florida Registered Paralegals As discussed in this issue s Editor s Comments, Clearwater Bar Association welcomes Florida Registered Paralegals into the membership ranks. Paralegals formally registered with The Florida Bar can now join CBA for dues of $100 a year. As members, registered paralegals will enjoy all the privileges of membership, except free general membership luncheons, the right to vote or hold office. Paralegals are an integral part of the practice of law and when registered with The Florida Bar must maintain a level of continuing education and meet ethical standards. These are qualities supported by the mission of the Clearwater Bar. For an application to join, see the home page at Dues are $100 per year; however, join by December 31 for ½ price dues of $50 for membership through June 30, Request an application by ing or phone Paralegals can enjoy participating in CBA CLEs and other events such as the upcoming Wild, Wild West Bench & Bar-B-Que. Potential Effect of Inflation on Estate Tax Exclusion Sample Letter to Client in Second Marriage Protective Trust Logistical Chart with Life Insurance Credit Shelter Trusts vs. Relying on Exclusion Portability Revised Protective Trust Logistical Chart Showing Clayton QTIPs Providing a Step-Up in Basis - Advantages/Disadvantages Examples of Non-reciprocality Factors in Trust Design Comparison of Methods to Purchase Homes for Children Purchase this book through CBA and receive a $10 discount. Individual book for members is $45, non-members $55. There is also a package including the book and a one-credit CLE, Planning Opportunities Structures Under the New Estate Tax Law by Alan Gassman, for $60 for members and $75 for non-members. Request an order form by ing clearwaterbar.org or phone Letters, Faxes, to the Editor The CBA Res Ipsa Loquitur welcomes your comments on topics relating to the law, the legal profession, the Clearwater Bar Association or the Res Ipsa. Letters must be signed, but names will be withheld upon request. The editor reserves the right to condense. Send letters to: Editor, Res Ipsa Loquitur Clearwater Bar Association 314 S. Missouri Ave., Suite 107 Clearwater, FL Fax:
7 Avocat de Famille by Scott E. Schiltz It s that time of year again when things are gearing back up in family law professional groups. The Clearwater Bar Association Family Law Section resumed meeting September 21, 2011, at noon at the Clarion Inn and Suites on U.S. 19, just north of Gulf to Bay Boulevard. The Canakaris Inn of Court resumed its meetings Tuesday, September 20 at 5:00 pm, at a new location, the Marriott, in Feather Sound. The Marriott is located at Roosevelt Boulevard North, St. Petersburg. Also of interest to every family lawyer is the Clearwater & St. Pete Bar Associations Annual Wild Wild West Bench & Bar-B-Que at Stetson University College of Law on October 21, 2011, at noon. (Consult the bar s web calendar for future meeting dates.) An interesting case to note, that is not in our jurisdiction, but of which the knowledgeable family lawyer should be aware is Owens v. Owens, case number 07A , out of Gwinnett County, Georgia. The trial court levied a total of $400,000 in attorney s fees against two lawyers and their client who had sought to modify custody that had been mandated in a divorce decree just seven months prior. The Gwinnett County magistrate judge found the plaintiff, the attorneys, and the attorneys firm jointly liable for $325,000 and the former husband personally liable for an additional $75,000 for the never ending hurricane and the mud and quicksand that this Court had to wade through during the course of the case. The court determined that the plaintiff and plaintiff s counsel neglected to conduct research substantiating the former husband s claims for modification of custody. Trial was set on the modification but on the morning of trial, one of the former husband s attorneys dismissed the case. Later, in a separately filed action seeking an increase of child support filed by the wife pro se, the former husband was ordered to pay the former wife additional child support. The following month, the former wife s attorneys filed their suit seeking attorney s fees from the former husband, the former husband s attorneys and the attorneys firm. Much like Florida s statute allowing sanctions for raising unsupported claims or defenses and being able to recover fees from both at-fault plaintiffs and their attorneys, under Georgia s OCGA the former wife sought attorney s fees resulting from litigation exhibiting such a complete absence of any justiciable issue of law or fact that it could not be reasonably believed that a court would accept the asserted claim, defense or other position. After a six day trial the court ordered a total of $325,000 in fees to be paid by the former husband s lawyers and their firm and the former husband was also ordered to pay an additional $75,000 attributable to a superior financial position and to his deceitful and frivolous counterclaim for increased child support. The former husband and his attorneys intend to appeal. In a recent Second District Court of Appeals case, also concerning fees and excessive and expensive litigation motivated by malice, is the case Dankowski v. Dey, 64 So. 3d 183 (Fla. 2d DCA 2011). In Dankowski, the divorce proceedings were extremely contentious and expensive. The circuit court awarded attorney s fees to the wife, finding that the husband s conduct was the reason for the excessive and expensive litigation and was motivated by malice and ill-will, driven by a sad obsession with proving his dominance over his ex-wife. The husband was ordered to pay the wife over $200,000 within 30 days for her attorney s fees and costs, which included work performed by her CPA. The payment was directed only to the wife, not to the attorney, and entitlement was not addressed in the order. The former husband failed to pay within 30 days and the trial judge reduced the total amount awarded to a judgment in favor RES IPSA LOQUITUR SEPTEMBER/OCTOBER of the wife. Again the judgment did not direct the payment to the attorneys and no Motion for Re-hearing was filed. Approximately three months after the entry of the judgment, the former husband and wife filed a Joint Stipulation for Satisfaction of Judgment of Attorney s Fees and costs, with the clerk s office. The stipulation indicated that the wife s attorney s fees and costs were satisfied and in return the husband would voluntarily dismiss the appeal pending before the Second District Court of Appeal. The Second DCA indeed dismissed the pending appeal after receiving a Notice of Voluntary Dismissal. Only then did the wife s attorney file a motion to set aside the Joint Stipulation, saying that the stipulation was fraudulent since the husband and wife misrepresented that the judgment had been satisfied. After hearing, the judge issued an Order Granting the Motion to Set Aside the Stipulation saying that the husband and wife s stipulation was collusive and fraudulent. The court awarded a judgment against the husband for the attorney s fees and the CPA s fees. The former husband appealed and the award was reversed. The Second DCA, in their opinion, stated that they deplored the collusive efforts by the former husband and former wife to deprive the attorneys and experts for services rendered on her behalf, however, could find no basis in the record with which to affirm. Hope to see you at an upcoming Family Law event. The author practices Family Law in Clearwater with Johnson Pope Bokor Ruppel & Burns, LLP, and is past president of CBA as well as past chair of CBA s Family Law Section, Oyster Roast and Bylaws Committee. He currently serves as trustee on the Clearwater Bar Foundation Board.
8 8 SEPTEMBER/OCTOBER 2011 RES IPSA LOQUITUR Stand Up Paddleboarding by Bruce Denson and Brody Welte Pinellas Chapter of FAWL News The Florida Association for Women Lawyers (FAWL) bestowed 2011 Class Leaders in the Law designation on three members of the Pinellas County Chapter of the Florida Association for Women Lawyers (PFAWL) at The Florida Bar s Annual Meeting in Orlando on June 23 and 24, Amy E. Cuykendall, of Core Care Patient Advocates, LLC, Brittany J. Maxey, of Maxey Law Offices, PLLC, and Robyn M. Featherston, of Brasfield, Freeman, Goldis & Cash, P.A., received the designation, which is awarded annually to Florida attorneys who serve as role models based on their professionalism and dedication to service. Additionally, Maxey was sworn in to the FAWL Board of Directors as its Journal Editor. Finally, FAWL awarded PFAWL with the Membership Recruitment Award. Since 2008, PFAWL has increased its membership from 1 member to 29. In 2010 alone, PFAWL recruited six new members. The Pinellas County Chapter of the Florida Association of Women Lawyers (PFAWL) held an installation ceremony in August for its officers and directors at the Acropolis Greek Taverna in St. Petersburg. The Honorable Lauren C. Laughlin presided and installed the following officers and directors: Brittany J. Maxey, President; Kyleen A. Hudson, Vice President; Alexandra O. White, Secretary; Elise K. Winters, Treasurer; Robyn M. Featherston, Immediate Past President; There are two common threads with lawyers, high stress and little time. Stand Up Paddleboarding (SUP) is a great way to deal with both of these issues. It is the simplest, fastest way to get a great wholebody workout while you enjoy the mental and emotional reset that a gym doesn t provide. Join us for a free Paddleboard Social on Saturday, October 22, 11am 1pm, at the beach just north of Clearwater Sailing Center (1001 Gulf Blvd., Sand Key). Boards, paddles and instruction will be provided. Please RSVP at home page and click member log in or phone The physical benefits of stand up paddling are simply amazing. Your lower body is fully engaged to keep you upright on the board. Your upper body and your core muscles get a super workout when you paddle. Like yoga, standing on a board requires basic balancing abilities, which strengthen and tone the muscles used to stay in position. Paddling is done at your own pace and you control the level of exertion. The mental benefits are also incredible. Your brain works with all of the muscles in your body to keep you positioned on the board and moving forward. Learning a new sport boosts your confidence and engaging your brain in a new activity helps you keep a mental edge. Off the water, being in good physical shape helps us focus on our cases and gives lawyers a better presence in the courtroom. There is a peace and serenity you get from being out on the water and as you improve, you can take on new conditions and hone your balance and skills. There is something reaffirming about focusing on the horizon and gliding forward over the water. It is a great way to recharge your batteries and energize yourself physically and mentally. There is always something new on every outing, from manatees and dolphin to our beautiful sunrises and sunsets. I could not believe how recharged I felt mentally, physically, and spiritually - after my first SUP outing, states local attorney Erin Banks. Combining an incredibly effective workout with the opportunity to enjoy the sunshine, water, and beaches is a wonderful utilization of time in a profession where time is a commodity. After mastering the basics, you might want to consider the growing sport of SUP racing. The legal profession attracts some Type A personalities who like to compete and there are some great races in the area. Madeira Beach is the home of the Gulfcoast Championship (www.gcsupc.com) and there are many other local races to get you motivated. So grab a board and find out just how quickly you can de-stress yourself. Brody Welte owns and operates Stand Up Fitness. He is a certified Personal Trainer and created the ACE certification for paddleboarding. Stand Up Fitness explores the waters in and around St. Petersburg, Clearwater and Tampa by paddle. For information on SUP lessons, rentals or Eco Tours, visit Bruce Denson is a criminal defense lawyer and avid paddleboarder. When not at the criminal courthouse he can often be found paddling around the Pier and Coffeepot Bayou. If you want to go paddle, call Bralynne Meyers, Director Awards; Kristina E. Feher, Director Membership; Joy C. Strickler, Director Programs; and Jennifer Lynn Codding, Director Public Relations. PFAWL is one of 28 chapters of the Florida Association of Womens Lawyers, which is a voluntary bar association that provides a statewide voice for Florida s women lawyers. PFAWL s mission is to provide a networking opportunity to and support group for women lawyers as well as to promote friendship among its members. PFAWL holds an open membership meeting at 6:00 pm on the first Tuesday of every month. For membership inquiries or to attend a meeting, contact Kristina Feher at
9 Criminal Practice by Kym B. Rivellini The Hired Help Remember back when you could call a police officer to the stand with pride, secretly hoping he would wear his uniform, and couldn t wait to parade him in front of the jury knowing he would be believed? Then came the O.J. Simpson case and all that changed. You almost had to apologize for calling the arresting officer, hoped he d wear his khakis, and wished he d mumble when stating his occupation. After September 11th it became honorable again to be part of law enforcement, and it has basically come full circle. But it just goes to show how the perception of honesty, integrity and kindness can define an entire profession. And we all know how that perception has defined the legal profession. The Help, a 2009 novel by author Kathryn Stockett, is about African American maids working in white households in Jackson, Mississippi, during the early 1960s. Long story short, each chapter chronicled what it was like to work for a particular family, from the maid s perspective. It was supposed to be anonymous and appear fictitious. However, it didn t take long for the women of Jackson to recognize themselves in the stories, and they were either pleased or horrified as to what they read. While the issue of race was prevalent, it came down to the simplicity of who was nice, respectful, and just plain decent. And so I asked myself, if my clients were to write a chapter, which character would I be? After all, we as lawyers are also just hired help invited into the lives and families of those around us to provide a service. The story telling that has gone on for years of our performance is exactly what has given us a bad name, made us the butt of too many jokes, and amounted to being the unflattering chapters. Here s a perfect example. I took a call many years ago from an obviously frustrated woman. She didn t sound terribly educated, and by the fact that she said she was upset with her son s court appointed lawyer I assumed she had no money to hire me. But as she explained why she was so indignant, I asked her if she wanted to set an appointment to come in. I felt it was my duty to show her that a lawyer could be decent. She explained what happened on her first visit with conflict counsel. Mr. Conflict Counsel* told them that the $700 he was receiving was not nearly enough to pay his bills. He pointed out his Jaguar out in the parking lot. He was rude. He was demeaning. And surely he did not offer any assurance that he was going to rightfully defend her son for some very serious charges. I listened. I explained the system. I explained the procedures. I answered her questions. I didn t do anything magnanimous, but I was decent and kind. She asked if she could hire me and we discussed fees even RES IPSA LOQUITUR SEPTEMBER/OCTOBER though I would have bet that she didn t have two nickels to rub together. I would have lost that bet. She was two weeks away from receiving $8.3 million dollars in a medical malpractice settlement. We represented her son not just on those charges, but on the numerous subsequent charges he obtained (Mom was a lovely and law-abiding woman; however her son had a penchant for drugs). Had Mr. Conflict Counsel just been decent enough to her, he would have had the pleasure of reaping the rewards of those future cases at a private counsel s fee. The disappointment, though, was the chapter he represented. There needs to be less Hilly Holbrooks (the nemesis in the story) in our profession and more decent and caring attorneys. I truly believe there are many amongst us; however the stories most likely to be retold will be the negative ones. That s why we need to outnumber them greatly. Competence and style will always differ greatly, but nice will always be nice. *Mr. Conflict Counsel is not one of the regulars we see around our courthouse. It was one of the main reasons I agreed to see the client. Knowing especially that he does not represent our defense bar I felt that I had to show her the difference. The author practices with the Law Office of Denis M. DeVlaming, P.A., in Clearwater. The firm specializes in criminal law. From 1995 to 1999 she was a prosecutor for the State Attorney s Office, 6th Judicial Circuit.
10 10 SEPTEMBER/OCTOBER 2011 RES IPSA LOQUITUR Pro Bono Opportunity In October, 2010, Bay Area Legal Services and The Children s Home Inc., Kinship Services Network (KSN) entered into a one year grant whereby relative caregivers who are caring for minor children and receiving services through the Kinship Services Network in Pinellas County, are eligible to receive certain limited legal assistance with matters such as: assistance with filing Petitions for Temporary/ Concurrent Custody, drafting powers of attorney for child care, and other related issues. Bay Area Legal Services is also providing training and education to relative caregivers and KSN staff on legal options and resources, on a regular basis. The Kinship Services Network has been in existence for five years and is intended to provide support to relative caregivers by helping families access necessary services, expanding family support systems, and ultimately reducing stress to promote family stability. If you know of a relative caregiver or family in Pinellas County who may be in need of assistance please let them know that they may contact the agency directly at (Pinellas County.) There is also information available online at: Note, the Kinship Services Network is a collaboration of The Children s Home, Big Brother/Big Sister of Pinellas, and Catholic Charities Diocese of St. Petersburg. If you are willing to offer your legal services on a pro bono basis to assist a financially eligible relative caregiver with legal matters associated with their care of minor children, please contact Lois Sears, Bay Area Legal Services at (813) , X172 to discuss. We will work with the existing pro bono provider/our regional partners, in Pinellas County to ensure and facilitate a collaborative effort. Making Life Easier for You! You can now register for events on the Clearwater Bar Association website, clearwaterbar.org. Clearwater Bar Members, Judges and staff of members who have an address in the CBA member records can register and pay for upcoming events. If you do not have an address on record with CBA, it to and include your name. Once your record is updated you will be able to log in. Once logged in, here s what you can do. Home return to the CBA home page. My Information edit name, contact info, , firm website, etc. Upcoming Events view list and register for events. My Events view events you have registered for. My Transactions view a record of your registration history. Online Check Out pay dues or registration fees by credit card. Logout be sure to log out of your secure connection. On your first visit, access Member Login on the home page at clearwaterbar.org, then select forgot password. Then enter the you have on file with CBA. You will immediately receive an permitting you to create your password. You will then be ready to log in using the secure Member Login. For assistance with online registration contact Colleen at or Pinellas County Law Library Board To Host Reception The Pinellas County Law Library Board of Trustees invites Clearwater Bar members to an open house reception on Tuesday, October 11, from 8 9:30am (brief presentation at 8:30 am), at the Law Library in the Old Historic Courthouse, 324 S. Ft. Harrison Ave., Clearwater. A continental breakfast and refreshments will be served. Please RSVP by October 10 to The Pinellas County Law Library Board is a board of Pinellas County Government. Chaired by Circuit Judge George M. Jirotka, the Board recommends and advises the Chief Judge of the Sixth Circuit regarding strategic planning, fiscal need and other issues related to the operation of the law library in Pinellas County. Recently the Board completed the process of creating a new trust and agency account to accept donations on behalf of the law library. A gift to the law library is solely for a public purpose and therefore tax deductible. The law library provides lawyers and the public extensive research tools which effectively benefits the functioning of our court system. Unfortunately, based on the reduction in funding for all state and county services, the library may no longer have funding to maintain its level of service. To assist the law library in maintaining the current high level of service, additional funding sources are needed. For more information or to make a donation please contact: Suzanne M. Mucklow, Fundraising Committee Chair,
11 The Rules Rule by Connie R. Stephens RES IPSA LOQUITUR SEPTEMBER/OCTOBER Fall is around the corner as the summer rains closed out the Labor Day weekend. The rule maker has been busy as the rules must proceed forward. Adm. Order No PA/PI-CIR, deals with a substitution of counsel, concerning the Attorney General s Office and its representation of The Department of Revenue in Title IV-D cases. A list of all affected cases in Pasco and Pinellas counties is attached to the administrative order. The holiday schedule for the State s Court System Personnel is out for the year Check this list to see if your favorite holiday is covered. Adm. Order Bits & Briefs Jennifer Lynn Codding, of Jonathan James Damonte, Chartered, has been selected to serve as a Hearing Officer for the St. Petersburg Housing Authority. Jennifer A. Ficarrotta recently joined Mason Black & Caballero PA as an Associate. She has been an active member of the Clearwater Bar Association and has received several awards, including Tampa Bay s Rising Stars in 2008 and Ficarrotta devotes 100% of her practice to the area of family law. Linda Suzzanne Griffin, Florida Bar Board Certified Attorney in Wills, Trusts and Estates and Taxation, a fellow in the American College of Trust and Estate Counsel, and recognized Top 50 Florida Female Super Lawyers 2011, recently spoke on behalf of The Florida Bar on Fiduciary Accounting to the Form 1041 Estate/Tax Return ; Navigating the Minefield of Trust and Estate Settlement A Primer on Tax and Non-Tax Aspects of Settlement for a Probate and Trust Litigator ; Planning Prior to Dissolution of Marriage and Exemption of Inherited IRAs. She also presented to the Asset Protection Committee of the American College of Trust and Estate Counsel, a paper on the Florida s Legislative Fix Exemption PA/PI-CIR. The Juvenile Welfare Board has informed the Court that the Board will discontinue funding for the Truancy Magistrate Program. There is an attachment that lists currently pending cases that are affected. Adm. Order No PI-CIR. Adm. Order No PA/PI-CIR, deals with tobacco litigation management. The Supreme Court of Florida decertified a class action lawsuit related to cigarette smoking injuries. Plaintiffs can, however, bring individual lawsuits against tobacco defendants using certain liability findings that were made in previous litigation. This order was adopted to provide for a of Inherited IRAs from Creditor Claims and Recent Bankruptcy Cases. Frank W. McDermott, managing partner of McDermott Law Firm, P.A., was recently approved as a Board Certified Criminal Trial Attorney with The Florida Bar. The firm handles all criminal law matters including felonies, misdemeanors, DUI s and juvenile delinquency matters. Charles F. Robinson has been named as one of the Florida Legal Elite attorneys for 2011, and Super Lawyers for Donna Rose has recently become a Florida Supreme Court certified appellate mediator and is now certified for both family and appellate mediations. George E. Tragos has been appointed to the Florida Supreme Court Criminal Data Elements Workgroup to identify information needed to initiate an e-filing and subsequent filings in all criminal divisions throughout the state of Florida. The work group had their first meeting in the Supreme Court conference room in Tallahassee and their final product will be presented pursuant to the Supreme Court s mandate establishing Florida Court s E-Portal. common issue judge to help manage these cases. There is an attachment A, that designates cases that shall so proceed. The Chief Judge designated the Honorable John A. Schaefer as the common issue judge who is available for the limited purpose of resolving pretrial issues that present either common questions of law or common questions of fact. Falling Out And Into Fall: Connie R. Stephens The author is a former editor of Res Ipsa Loquitur and past chair of CBA s Family Law Section, Bench Bar Conference Committee and Oyster Roast. Currently she is co-chair of CBA s Solo & Small Firm Section. She practices family law in Clearwater. The E-portal will be a single statewide access point for electronic access and transmission of court records to and from Florida Courts. The Florida Board of Bar Examiners wishes to acknowledge with appreciation the following volunteers for their assistance in proctoring the Bar Examination held July 26-27, 2011, at the Tampa Convention Center: Deborah A Hearn, Robin Allweiss, Rosemary Bardi, Bill Bonezzi, Laura Chilcutt, Leonard Clark, Jillian Estes, Michael Faehner, Kristina Feher, Edwin Hightower, Jessica Hoyer, Traci Koster, Lindsey Marriott, Thomas H. McGowan, Anita Misir, Ani Oluku, Hon. Stephen Rosen, Katrina Schaffhouser, Russell Sibley, Allyson L. Smith and Hon. Gene Ulmer.
12 12 SEPTEMBER/OCTOBER 2011 RES IPSA LOQUITUR Juvenile Arbitrators Sought The Sixth Judicial Circuit invites applications from persons who are interested in serving as a Juvenile Arbitrator in Pasco and Pinellas Counties. All current Sixth Judicial Circuit Juvenile Arbitrators must reapply to be considered for services January 1, 2012 through December 31, All applications and paperwork must be received by 5:00 p.m., Thursday, October 20, In order to be considered, arbitrators must meet the requirements of Rule of Juvenile Procedure Arbitrators will be required to complete an 8-hour training session provided by the Court, and to abide by Administrative Order Each Arbitrator selected must enter a contract with the Sixth Judicial Circuit that will be effective through December 31, At the discretion of the Chief Judge, each contract may be renewed for additional terms, for up to 36 months. Arbitrators are selected from the best-qualified applicants as determined by the Chief Judge. Not all applicants may be selected to serve. The number selected will be based on the needs of the Circuit. Juvenile Arbitrators are paid $22.00 per hour for service in either county and serve on a rotating basis. Applications from attorneys and masters or doctorate-level mental health professionals are particularly encouraged. If you are interested in being considered for appointment, please submit the following: Completed Application (note: you must include an address) Your resumé Signed copy of the abuse registry check form Signed copy of vendor background check form The Application and vendor background check form are available on our website at CourtContractedServices.html. The completed application and paperwork must be mailed to: Sixth Judicial Circuit, Office of Court Counsel, st Avenue North, Suite 1000, St. Petersburg, FL Please direct any questions regarding the application to the Court Counsel s Office at (727) To deliver your application in person, you must pre-arrange delivery by calling (727) Note: We will not accept certified mail deliveries or facsimiles. Any questions regarding service as a juvenile arbitrator in Pasco County should be directed to Rosalie Johnson at (727) , and any questions regarding service in Pinellas County to Marty Fogle at (727) Your completed application and paperwork to serve as a juvenile arbitrator must be received in the court counsel s office no later than Thursday, October 20, 2011 at 5:00 p.m. When eldercare or disability concerns someone you know, call upon the professionals trusted by your colleagues Professional care management and assessments Expertise for complex cases, family conflict and disabled clients of all ages Affordable consultations (available via phone & video for families) We can arrange on-site consultations at your office. Contact us to learn more: Household help & personal care Short term help, affordable post-hospital and surgery packages Transportation to appointments, errands, events, travel escort Let us make your life easier! Contact us today for a free assessment: Licensed HHA# , bonded, insured. LTC insurance and credit cards accepted, gift certificates available.
13 A Review of the Term of the United States Supreme Court by Spiros A. Tsimbinos The United States Supreme Court concluded its October 2010 term on June 28, It is commencing its new term on October 3, It is thus a good time to review developments in the Court which occurred in the past year, and to highlight some of the major issues which the Court will be addressing in its new term. The Court s Volume The Court, during its past term, handled approximately 80 cases in which full decisions and significant issues were discussed. Civil matters made up approximately 70% of the Court s volume and criminal cases comprised about 30%. This was approximately the same situation which existed in the term. The 5-4 Decisions Although Chief Judge Roberts has continued to make an effort to achieve greater consensus among the Court on many major issues, the Court continued to split in a 5-4 manner. Roughly 20% of the cases resulted in a 5-4 split, with members of the so-called conservative bloc on one side, and members of the liberal grouping on the other. As in the past, Justice Kennedy often provided the critical fifth swing vote. Probably the most significant criminal law case during the past term in which Justice Kennedy provided the critical swing vote was the decision in Brown v. Plata, 131 S. Ct (May 23, 2011), in which the California prison system was ordered to relieve overcrowded prison conditions. On the civil side, he also provided the critical swing vote in the Wal-Mart case, where the Court rejected a class action suit commenced by female workers at Wal-Mart. Using his position as the critical swing vote, Justice Kennedy, during the past term, was in the majority 94% of the time, regaining his leading position from Justice Roberts, who this year was in the majority 91% of the time. The Various Groupings A review of this year s past term also clearly reveals the continued grouping of certain Judges who almost always vote together. Thus Justice Kagan and Justice Sotomayor voted together 94% of the time. Justice Alito and Justice Roberts voted together 96% of the time, and Justice Thomas and Justice Scalia voted together 86% of the time. Justice Kagan s First Year on the Court Due to the fact that she had previously served as U.S. Solicitor General, Justice Kagan found that she had to recuse herself in approximately 1/3 of the Court s cases. When she did vote, she was almost invariably in the liberal bloc of the Court, and appears to have found a soul-mate in Justice Sotomayor, with whom she voted together 94% of the time. In the area of criminal law, she consistently voted on the side of the defense in most of the significant criminal law decisions issued during the term. RES IPSA LOQUITUR SEPTEMBER/OCTOBER Justice Scalia for the Defense Although Justice Scalia has been traditionally viewed as a member of the conservative bloc and basically pro-prosecution, he has, in the last few years, led the Court in two major directions which have proven favorable to the defense. One area was the Apprendi rulings which limited the ability of a sentencing court to enhance punishment based upon factors not considered by the jury. The second area involves the issue of the right of confrontation, where Justice Scalia was instrumental through the Crawford line of decisions to provide a greater right of confrontation for defendants. This year, in the case of Bullcoming v. New Mexico, 131 S. Ct (June 23, 2011), the Court, by a 5-4 decision, upheld the necessity of having the analyst who actually conducted the test testify at trial, and not a substitute. In an interesting development in that case, Justices Scalia and Thomas banded together with Justices Ginsburg, Kagan and Sotomayor to provide the necessary five-judge majority. First Amendment Issues The Court continued to defend the concept of free speech, even in circumstances which are detestable to most citizens. Thus, it upheld the right of individuals to stage a protest near the funeral of a military service member in the case of Snyder v. Phelps, 131 S. Ct (2011) and also held that a state law restricting the sale of violent video games to minors was unconstitutional. Brown v. Entertainment Merchants Association, 131 S. Ct (June 27, 2011). A Look Toward Next Term Although the Court did address some significant issues in its past term, it is expected that some blockbuster matters may be decided during its upcoming term. Challenges to the new health care law are already finding their way to the Supreme Court, as are cases involving same sex marriage, immigration and affirmative action. It appears likely that on the major controversial issues, the two traditional voting blocs will continue to oppose each other, and Justice Kennedy will continue to provide the key swing vote. We await some interesting developments. The author is a retired New York attorney living in Dunedin and is a Clearwater Bar Association member.
14 14 SEPTEMBER/OCTOBER 2011 RES IPSA LOQUITUR Family Fun & Fireworks Night To benefit Clearwater Bar Foundation August 27, 2011 Thank You Sponsors Grand Slam - $1000 Johnson Pope Bokor Ruppel & Burns, LLP The Law Firm for Family Law Triple - $300 Carlson Meissner Hart & Hayslett, P.A. McLane McLane & McLane Double - $100 Susan S. Demers David Robert Ellis, P.A. M. Faehner, Esq., LLC Karen France Robert L. Jones Inc. Hon. Thomas Minkoff PDR Certified Public Accountants James R. Stearns, P.A. [Above] Three-year-old Parker Campbell Buckley is pensive after throwing the first pitch and making it all the way to the catcher. WOW! [Left] Clockwise, Brian Schuh, Julie Jouben, Samantha Schuh. [Below] Foundation President Dave Ellis and family, clockwise, Michelle, Marissa, Evan and Garrett. Garrett is a member of the first pitch club. [Left] Foundation Past President Joan Vecchioli (left) and Susan Wood. [Right] Deb Bushnell and Steve Brashear.
15 RES IPSA LOQUITUR SEPTEMBER/OCTOBER [Above] CBA President-Elect Bridget Heptner (left) and Renee White. [Above] Left to right, Paula Zeis, Pat and Art Miller. [Below] CBA President Kim Campbell (and mom of Parker) and CBA Secretary Jim Royal. [Right] Faye and Gary Williams. [Above] Erin Barnett and Gentry Byrnes, St. Pete Bar President. [Right] CBA Past Presidents Mike Faehner and Jewel White.
16 16 SEPTEMBER/OCTOBER 2011 RES IPSA LOQUITUR September Member Luncheon A panel of judges and professionalism implementation representatives presented a lively discussion to Clearwater Bar members at the September 8 member luncheon. Donald S. Crowell, immediate past president and Program Chair, moderated a discussion with Chief Judge J. Thomas McGrady, Judge Pamela Campbell, Judge Jack Helinger, and attorneys Andrew B. Sasso and Larry Hart. The presentation served as an informative review for members of how the Sixth Judicial Circuit s Rules of Professional Conduct are implemented in Pinellas and Pasco Counties. They heard the history of the Professionalism Implementation Program and found out just how the program works. Attendees were provided with a booklet of the rules, compliments of the Sixth Circuit. The next luncheon is set for Nov. 3, at Safety Harbor Resort and Spa and will honor veterans. The speaker will be Air Force Major Joseph Kurek. RSVP for the luncheon on line via www. clearwaterbar.org or phone A seminar will follow dealing with veterans and servicemembers benefits. [Above] Co-Chair, Solo & Small Firm Section, Connie Stephens, introduced the seminar following lunch covering marketing with social media and networking, which featured speakers Nora Bergman, Randy Fox and Joe Corsmeier. [Above] Left to right, Past President Michael J. Faehner, Bankruptcy Section Co-Chair Steve Fishman, and WestlawNext rep Jay Fakterowitz. [Above]Past President Denis devlaming (left) and Thomas Ramsberger. [Above] Left to right, Past President Susan S. Demers, President Kimberly A. Campbell, and Hon. David S. Demers. [Above] Board Member Joshua T. Chilson (left) and James E. Royal, Board Secretary.
17 RES IPSA LOQUITUR SEPTEMBER/OCTOBER [Above] Left to right, John E. Tucker, Past President Andrew B. Sasso, and Rick Kriseman. [Right] Hon. Jack Helinger (left) and Past President Joseph A. Corsmeier. Tax Tips and More by Linda S. Griffin and Nicholas J. Grimaudo Transfer of a Home To Avoid Estate Taxes The Internal Revenue Code (the Code ) allows a taxpayer to transfer a personal residence to a Qualified Personal Residence Trust (QPRT), for a period of time. Hopefully the period of time ends before the taxpayer dies. If the taxpayer outlives the QPRT term, then the personal residence is excluded from the taxpayer s gross estate for tax purposes. The taxpayer can then rent the personal residence from the beneficiaries of the QPRT after the QPRT term. Upon the transfer to the QPRT taxpayer reports a gift for federal gift tax purposes equal to the value of the remainder interest that passes to the beneficiaries of the QPRT. In today s housing market the taxpayer s personal residence will likely be valued lower than it will be by the end of the QPRT term. Thus, the taxpayer can remove their personal residence from their gross estate, using their $5 million exemption. If you have a client who transfers a home to a QPRT, then make sure that the necessary steps are taken to determine a fair rental value of the home before the QPRT term expires. In Estate of Sylvia Riese et al. v. Commissioner, TC Memo , the Tax Court held that the home in a QPRT was not included in the decedent s gross estate for tax purposes because the decedent intended to pay rent and began the initial steps to do so before dying unexpectedly. Note that the decedent never paid rent prior to her death. Thus, as long as there is enough evidence to show the true intent to pay rent, then the home should be excluded from the gross estate. Advice: If you have a client who transfers a home to a QPRT, then make sure that the necessary steps are taken to determine a fair rental value of the home before the QPRT term expires. Obviously it is best to actually pay the fair rental value, but if not, Riese is a great case to use. Important 2011 Legislative Probate Changes Effective July, 1, 2011, in an effort to keep an individual s confidential information from public record, the Florida Legislature passed changes to Florida Probate Rules 5.200, and In a Petition for Formal Administration, a Petition for Probate of Will Without Administration and a Petition for Summary Administration the petitioner is only required to list the last 4 digits of the decedent s social security number. Florida Senate Bill No. SB 648 amended Section , Florida Statutes to clarify that the attorney-client relationship exists between a lawyer and the fiduciary, i.e. a Personal Representative or Trustee. Confusion existed as to whether the attorney represented the fiduciary or the beneficiaries of the estate or trust. Florida Senate Bill No. SB 648 also amended Sections and , Florida Statutes to require that the fiduciary notify the beneficiaries that the fiduciary lawyer-client privilege in Section , Florida Statutes applies with respect to the personal representative or trustee and any attorney employed by the personal representative or trustee. Effective July, 1, 2011, this notice to the beneficiaries must be included in the Notice of Administration ( NOA ) for an estate and the Notice of Trust ( NT ) for a trust. see Tax Tips and More on page 19
18 18 SEPTEMBER/OCTOBER 2011 RES IPSA LOQUITUR he Persante Law Group, P.A., is a Martindale- Hubbell AV-rated* civil litigation law firm with a focus on Trial Practice, Mediation and Arbitration. Areas of Practice include: Securities Litigation and Arbitration Trust and Probate Litigation Business Litigation Mediation Attorney Robert Bob Persante is a Certified Circuit Civil Court Mediator with over 27 years of litigation and courtroom experience, a former president of the Barney Masterson American Inn of Court, and has been selected for inclusion in the 2010 Florida Super Lawyers. The Persante Law Group, P.A Enterprise Road, Suite 15 Clearwater FL Telephone Facsimile Attorney Zackary Zack Zuroweste is an appointed member of The Florida Bar Young Lawyers Division Board of Governors, past president of the Clearwater Bar Association Young Lawyers Division, and has been selected for inclusion in Florida Trend s 2010 Legal Elite : Up & Comers. * Martindale-Hubbell is the facilitator of a peer review rating process. Ratings reflect the anonymous opinions of members of the Bar and the Judiciary. Martindale-Hubbell Peer Review Ratings fall into two categories legal ability and general ethical standards. Referral Fees will be paid in accordance with the Florida Bar Regulations. Clearwater Bar CLE Audio CDs Available 25 areas of practice and over 90 courses. For a complete list of titles, visit
19 Tax Tips and More continued from page 7 Advice: If you practice in the areas of probate and/or trust administration, then be sure to put those notices in your NOA and NT. As of this date the FLSSI forms do have this language for the NOA but not the NT. New Durable Power of Attorney Statute The Florida legislature passed Senate Bill 670 which significantly revises Chapter 709, Florida Statutes for Durable Powers of Attorney (DPOA). The changes will take effect on October 1, A DPOA is a legal document in which the principal appoints an agent to legally act on their behalf. DPOA s signed after the October 1, 2011 can no longer be springing, meaning the DPOA takes effect immediately once signed and not when the principal becomes incapacitated. The statute requires the principal to initial or sign beside certain powers that are given to their agent, such as the power to make 5 Reasons Why Res Ipsa Loquitur Advertising Makes Smart Cents! 1) Mailed to over 900 attorneys and judges. 2) A readership base of over 1,800 legal professionals. 3) Educated readers. 4) Affluent readers. 5) Uncluttered message. gifts or to create a revocable trust. A third party has the power to request an opinion of counsel that explains the DPOA is legally effective. Any DPOA that was validly executed under Florida law before the effective date will remain valid. Advice: If you draft DPOAs for your clients, then review the new Florida Statute in great detail. There are many changes to the DPOA statute and it is important to become familiar with these changes. Notify your clients they may wish to do new DPOAs as the banks and financial institutions may require the new DPOAs even though the statute specifically validates DPOAs executed before October 1, Linda Suzzanne Griffin is a J.D., LL.M. and Certified Public Accountant and practices in Clearwater. Linda can be reached at lawyergriffin.com. Nicholas J. Grimaudo is a J.D. and LL.M. and practices with Linda Suzzanne Griffin, P.A. Nick can be reached at Call See clearwaterbar.org for rate information. RES IPSA LOQUITUR SEPTEMBER/OCTOBER PERZEL & LARA FORENSIC CPA S PROVIDING FORENSIC ACCOUNTING AND LITIGATION SUPPORT TO THE TAMPA BAY LEGAL COMMUNITY SINCE 1985 Business Valuations Family Law Support Forensic Investigation Litigation/Damages IT HELPS ME WIN CASES... AND CLIENTS. TOM DWYER FOUNDER, DWYER/PARTNERS LLP, BOSTON For law firms, quickly finding the best information for the clients issues is a major key to success. According to Tom Dwyer, When you re out to win cases, and clients, you ve got to have all the firepower you possibly can. That s why I use WestlawNext. I can deliver better, faster legal services and at a lower cost to clients. Go to Customers.WestlawNext.com or call Learn more about Dwyer/Partners at dwyerpartnersllp.com. Certified in Business Valuations, Forensic Investigation, & Economic Damages Hillsborough Pinellas Thomson Reuters L /8-11 L _Dbw.indd 1 8/16/11 2:00 PM
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