Annual Reports of Committees of The Florida Bar
Admiralty and Maritime Law
The Admiralty and Maritime Law Committee held its annual meeting on June 15, 2016, at the Hilton Orlando Bonnet Creek & Waldorf Astoria. The Admiralty Committee was excited to present the 2017 Annual Admiralty Law Update and Board Certification Review at the Miami office of Shutts & Bowen, LLP, on January 31. This free program provided 10 general CLE credits and 10 credits toward admiralty and maritime certification. Both meetings were well attended by both committee members and admiralty practitioners in person and by telephone. The committee thanks vice chairs Alan S. Richard, Stephen M. Moon, Scott A. Wagner, Raul J. Chacon, Michael E. Conroy, and Robert L. Gardana for their service and work this year in making this a successful year for the committee.
The June 15, 2016, meeting included a Florida legislative update by Capt. Alan S. Richard and presentations on “The Opening of Cuba: Cruise Ships, Pleasure Yachts, and Cargo Trade” by John Thomas and “Maritime Security” by Robert L. Gardana.
The January 31 CLE and committee meeting, led by committee Vice Chair Robert Gardana was the third in a new tradition for the Admiralty and Maritime Law Committee by holding its winter meeting combined with a CLE presentation. Chapter authors from the upcoming fifth edition of Maritime Law and Practice that were not currently serving on the Admiralty and Maritime Law Certification Committee were asked to present general information and law updates on the subject of their chapter of the book. This allowed for presentations by members of the committee on wide-ranging subjects as both a review and as information for those practitioners who have not yet taken the admiralty and maritime certification exam. In addition to the presentation of chapters from the book, LexisNexis sponsored lunch and presented information related to legal research for maritime law. The all-day meeting was followed by a reception at the Shutts & Bowen offices. The committee thanks Shutts & Bowen, LexisNexis, SEA, and National Maritime Services.
The committee has been presented an issue of substantive law for discussion and determination by the committee. A subcommittee, led by Vice Chair Alan S. Richard, has been appointed to discuss the issue of attorneys’ fees in an alleged wrongful arrest case and whether substantive law conflicts with the local rules of the three federal districts. In addition to this specific question, the issue of uniformity of the local rules between the Northern, Southern, and Middle districts will be addressed by the subcommittee. The subcommittee will meet in the beginning of this year, and will make a report and recommendation to the entire committee for discussion at an upcoming meeting of the committee. Thank you to the members who have volunteered for this important subcommittee.
One of the continuing goals of the committee was met this year when the fifth edition of Maritime Law and Practice was uploaded to the Bar for publication in early 2017. In addition to the many authors and steering subcommittee members, the committee thanks Florida Bar Legal Publications Director Krys Godwin and Florida Bar Legal Editor Josine Blackwell for their continued work over the past year in making the updated publication a reality. Returning this book to publication has been a goal of the committee since the publication of the fourth edition in 2004.
The committee is excited to move into 2017-2018 with new leadership of Robert L. Gardana as the incoming chair. The committee will continue to offer members the opportunities to appear remotely, via telephone, or teleconference for both CLE opportunities and committee meetings.
I have greatly enjoyed my time as chair of the committee, and I thank the committee members for their continued involvement and support with the activities of the committee. A special thank you to our Florida Bar staff liaison, JoAnn Shearer, and our Board of Governors liaison, John “Jack” Hickey. It was a very busy year for the committee, and without support from its members, liaisons, and leadership, could not have accomplished its many goals.
C. Ryan Eslinger, Chair
Admiralty and Maritime Law Certification
This year the Admiralty and Maritime Law Certification Committee continued its work of preparing a comprehensive exam to test for the knowledge, experience, and abilities of Florida lawyers striving to become certified in the area of admiralty and maritime law. This unique area of the law provides a challenge to test preparers and test takers.
The certification exam covers 15 distinct areas of admiralty and maritime law, including admiralty jurisdiction, marine insurance, limitation of liability, maritime liens, and maritime personal injuries. Each area may contain as many as five or six subtopics, all of which are important areas of inquiry for the exam. The exam includes 100 mandatory multiple-choice questions, and six fact patterns, two mandatory and two chosen by the taker. The questions reflect the various specialties within the field, testing the applicant’s broad knowledge of admiralty procedure and maritime law.
One goal of the committee and the Bar is to increase the number of certified lawyers to 75 as soon as possible. The committee encourages certified attorneys and law firms to mentor younger lawyers who are practicing admiralty and maritime law and will soon be meeting the five-year minimum experience requirement for taking the exam. Presentations promoting certification have been made at admiralty and maritime conferences, including the Southeast Admiralty Law Institute held every year in June, Mariner’s Club conferences in Ft. Lauderdale and Tampa, Admiralty and Maritime Law Committee meetings, and The Florida Bar Admiralty Law Committee’s Annual Admiralty Law Update.
During 2016-2017, the committee met both by telephone and in the Bar offices in Orlando to prepare and review test questions. This preparation also included asking certified attorneys not on the committee to review a section of the proposed exam to ensure the accuracy of the questions. The committee also reviewed the applications submitted by potential test-takers to ensure applications met the minimum qualifications for certification. In addition, the committee reviewed applications for recertification along with applications for advanced admiralty and maritime law certification credits based on seminars and presentations given in Florida and around the country.
Admiralty and maritime lawyers who were certified in 1997, 2002, 2007, or 2012, will be due to file a recertification application by June 15. The filing period for initial applications is July 1-August 31.
Thank you to the members of the 2016-2017 committee for their hard work and commitment to ensuring the highest standards for certification are maintained. Committee members for 2016-2017 are Vice Chair Theresa M. Bennett, Mark R. Ercolin, C. Ryan M. Eslinger, Allan R. Kelley, Joanne M. Foster, Christopher R. Koehler, Frank J. Sioli, Jr., and Michael W. McLeod. A special thank you to our former Bar staff liaison, Charlotte Bell, whose hard work and support were indispensable to our work throughout this past year. We welcome our new liaison, Jason Rawls, who will guide us through the next phase of exam grading and then starting the process of test preparation and application review all over again.
I invite all eligible admiralty and maritime law attorneys to apply for certification. There is no better way for a maritime attorney to advance his or her skills, professionalism, and ability to network in this exciting and expanding area of the law.
Raúl J. Chacon, Jr., Chair
Adoption Law Certification
The Adoption Law Committee had another productive year. Seventeen certified lawyers applied for recertification and two initial applicants were approved to sit for the examination in March. Grading exams was completed in April. This year, the committee posted additional model multiple-choice questions to The Florida Bar website for the benefit of applicants at the request of the Board of Legal Specialization and Education. The committee also continues to post information on adoption-related CLE for use by potential applicants.
The committee met throughout the year by phone and in person to review applications for certification and recertification, and to prepare the examination and model answers. The applicant review process includes a determination as to whether each applicant meets the highest standards of professionalism and ethics. This incorporates a comprehensive peer-review process. The committee wishes to express its sincere appreciation to all of the judges and attorneys who responded to requests for peer reviews and evidence of substantial involvement. All submissions were carefully considered by the committee in the evaluation of each applicant.
The committee continued its consideration of an accommodation for Florida Bar members residing out of state. The committee researched the adoption laws of numerous states and debated the issue of the appropriateness of a possible accommodation in this state-specific area of the law. Additionally, the committee continued its outreach to potential board certification applicants. The committee held its September meeting in conjunction with the Florida Adoption Council’s conference in Orlando. The committee discussed certification with the adoption attorneys in attendance at the conference and encouraged them to submit their applications.
Those adoption attorneys certified in 2012 are due to recertify this summer. Recertification applications have been posted to The Florida Bar website. Recertification requirements must be met by May 31, and the recertification application must be postmarked by May 31. If an extension is needed to meet the recertification requirements, a request must be postmarked by May 31. The filing period for initial certification applications begins July 1 and ends August 31. The committee encourages all eligible adoption attorneys to apply!
Thank you to fellow committee members for their contributions this year: Vice Chair Michelle Hausmann, Brian Kelly, Ellen Kaplan, Alan Mishael, Tammy Driver, Christine Arendas, Maxine Derkatch, and Lee Carden. Our staff liaison, Maritza McGill, continues to be an enormous asset and we thank her for knowledge and assistance.
Danelle D. Barksdale, Chair
The Standing Committee on Advertising is responsible for advising members of The Florida Bar on permissible advertising and marketing practices. The committee, which meets periodically as needed, reviews appeals of opinions issued by staff counsel, offers guidance to staff in evaluating lawyer advertisements, makes recommendations regarding rule changes, and provides guidance to Florida Bar members concerning both the substantive and procedural requirements of the advertising rules.
The committee advises Bar members on the substance of the advertising rules through a variety of different methods. An in-depth analysis of the filing requirements, substantive regulations, and committee interpretations is provided by the committee’s Handbook on Lawyer Advertising and Solicitation. The Handbook is regularly updated by Bar staff to reflect important changes that have occurred and is currently available on the Bar’s website. The Handbook and other information addressed in this report are available at www.floridabar.org under “Ethics” and then “Advertising Regulation and Information.”
It was a busy year for the committee. In addition to reviewing advertisements filed by members of The Florida Bar, the committee reviewed numerous articles and opinions regarding significant national trends and developments in legal advertising and marketing.
• Responding to Referrals with Ringless Direct-to-Voicemail Messages — The committee reversed a staff decision, concluding that contact with a prospective client through Ringless Direct-to-Voicemail messaging does not constitute impermissible solicitation if the potential referral has used a lawyer referral service and has specifically opted to be contacted by an attorney. Provided that the lawyer referral service otherwise complies with Rule 4-7.22 of the Rules Regulating The Florida Bar, the committee concluded that a lawyer could directly contact the prospective client through Ringless Direct-to-Voicemail messaging if the prospective client had checked a box marked: “checking this box you agree to be contacted by an attorney.”
• Chambers USA — Following a review of information about the award, the committee determined that “Chambers USA — Litigation: Appellate” constitutes a bona fide organization that uses objective selection criteria, as required by Rule 4-7.13(a)(3). This means that attorneys may now reference this award in advertisements provided that the advertisement includes the exact name of the award, the exact name of the organization that granted the award, and the year that the award was bestowed.
• Other Accomplishments — far the most time consuming task of the committee this year, as in past years, has been reviewing advertisements filed by members of The Florida Bar to determine whether they comply with the advertising rules. The committee reviews decisions of its staff regarding lawyer advertisements if the staff’s interpretation of a particular rule or advertisement is appealed by an advertising attorney. Advertisers can appeal decisions of the committee to the Board of Governors if they wish to do so. The committee also provides guidance to its staff and advertisers, pursuant to requests for guidance, in order to foster compliance with the rules and to permit advertisers to accomplish their legitimate advertising goals. The committee works hard to apply the advertising rules fairly to all types of advertisements and to balance the rights of advertisers with the needs and concerns of the public.
The committee has also taken the lead in investigating services that may or may not be Lawyer Referral Services and has spent extensive time monitoring such services to protect the public and the lawyers of the state of Florida from services that do not follow the advertising and ethical standards of The Florida Bar.
The committee, through its staff, continues to publish a column in The Florida Bar News from time to time, “Advertising Updates.” Articles have been published explaining the most recent revisions to the advertising rules and providing information regarding recent opinions of the Board of Governors and the committee regarding advertising. The committee further updates the Bar’s website with new material and information when needed in order to provide Bar members with as much information as possible to assist them in compliance with the attorney advertising rules.
• Composition of the Committee and Florida Bar Staff — The Standing Committee on Advertising is made up of nonlawyers as well as lawyers. We believe that this has contributed substantially to our work and our broad perspective on advertising and marketing. I thank each of our committee members: Connie Reeves Bookman, Jackson Wolfe Adams, Sammy Michel Cacciatore, Winston W. Gardner, Anthony J. Jackson, and Viviana Pedroso Varela.
Finally, the committee thanks our board liaison, Sam Nicholas Masters; Division of Ethics and Consumer Protection Division Director Lori Holcomb; and our hardworking staff: assistant ethics counsels Cynthia E. Booth, Joy A. Bruner, Huy-Yen T. Cam, Gail E. Ferguson, Jonathan D. Grabb, Jeffrey M. Hazen, and LiliJean Quintiliani, Legal Assistant Donna Hostutler, Administrative Secretary II Pamela Brown, administrative secretaries Louise Averette and Kaila Slater, and Program Assistant Deondra McMillan, headed by ethics counsel, Elizabeth Clark Tarbert. Without the participation, guidance, experience, and hard work of these individuals, the business of this committee could not be accomplished.
Carolyn Bell, Chair
The Annual Convention Committee has been working hard this year planning the 2017 Florida Bar Annual Convention that will take place June 21-24 at the Boca Raton Resort & Club. Situated on 356 acres in fabled South Florida, this property, well known to Florida Bar members as the site of past conventions, boasts an award-winning spa, championship golf and tennis, and an expansive beach and luxury marina.
A goal of this year’s convention is to enrich the lives and practices of the Bar’s membership by offering meaningful seminars and presentations covering a variety of current topics that will enhance members’ law practices and professional lives. Indeed, as a result of the committee’s planning, several outstanding seminars will be available to registrants, many offered at no additional cost. Such educational opportunities will begin on Wednesday when cutting-edge legal technology education takes center stage. Highlights of Thursday and Friday will include two featured President’s Showcase Seminars focusing on the Constitution Revision Commission and Florida’s Judiciary presented by the Constitutional Judiciary Committee, and 2017 Masters on Ethics presented by the Professional Ethics Committee.
Social activities and networking events planned by the committee include the ever-popular All Members Reception on Thursday evening in the lawyer’s marketplace, which will provide an overview of the latest products and services available in today’s legal environment. Located in the Mizner Center, convention attendees can unwind, visit with friends and colleagues, and thank the wonderful convention sponsors and exhibitors for their support. To that end, this year, more than 50 generous law firms, voluntary bar associations, and law schools are sponsoring the judicial luncheon, featuring a tribute to The Florida Bar’s beloved, retiring Executive Director Jack Harkness. The convention will close with the Friday night president’s reception honoring outgoing President Schifino. This year’s country shabby-chic, “Boots and Pearls”-themed party boasts a themed buffet and dessert stations; music by South Florida’s most versatile and live band, Libido; dancing; and more!
In addition to planning this year’s convention, the committee continued work implementing the recommendations of the Program Evaluation Committee of the Board of Governors to continue improving the look, feel, accessibility and value of the convention so that Florida Bar members derive the maximum value from this annual event. This year, members will continue enjoying enhanced benefits, such as an improved charging station and increased communication and interactive engagement, and should anticipate the rollout of additional enhancements during the 2018 Florida Bar Annual Convention.
Be sure to visit The Florida Bar website and download the 2017 convention app for the latest details and to register for all programming and activities. The many events that will be seamlessly hosted in Boca Raton are made possible by the efforts of The Florida Bar Meetings Department, led by Kathy Tucker, and the following committee members: Barbara Cocciolo, Iris Elijah, Laura González-Marqués, Yolonda Green, Paige Greenlee, Barbara Leach, Stacy Perez, Kathleen Phang, Alice Sum, and Renée Thompson. They have truly made this year’s convention one to remember.
Looking forward to seeing you in Boca Raton!
Melanie Griffin, Chair
Antitrust and Trade Regulation Law Certification
Antitrust law covers the practice of law dealing with anticompetitive conduct or structure that may reduce consumer welfare in the U.S. under the federal Sherman Act and analogous Florida Statutes. Trade regulation law covers the substantive area of law dealing with deceptive, unfair, or unconscionable acts or practices, and unfair methods of competition under the federal Trade Commission Act and Florida’s Deceptive and Unfair Trade Practices Act.
Throughout the year, the Antitrust and Trade Regulation Law Certification Committee focused on the process of adopting proposed rule amendments to the standards for certification that expand the practice areas covered by this certification. Previously, the committee drafted revisions that incorporate state and federal consumer protection laws and related class actions into the committee’s certification expertise. These amendments are consistent with the expansion of substantive expertise by antitrust and trade regulation bar organizations at the ABA and state levels and reflects the evolution of the practices of many Florida attorneys who are certified in antitrust and trade regulation law. The proposed rule amendments are currently circulating through the Bar’s review process. The committee is always attuned to other methods for increasing the number of board certified attorneys in antitrust and trade regulation law.
I thank my fellow committee members for their contributions through the year: Vice Chair Patricia Conners and, before they termed off, Judge Edward LaRose and Lawrence Silverman. I welcome our new committee members, Lizabeth A. Brady, Scott Palmer, and Judge Lori Rowe, and our
active and our hands-on BLSE liaison, Mark R. Osherow. I also commend our hardworking staff liaison, Maritza M. McGill, for her organization, guidance, and especially her patience.
Hal Litchford, Chair
Appellate Court Rules
“Rules are important, but they’re temporary and they’re always supposed to be changed.” — John Lydon
Currently, almost 50 rules govern the practice in courts of appeal in the Florida Rules of Appellate Procedure. The Appellate Court Rules Committee, composed of 48 members of exceptional talent and commitment, consistently works to better those rules. The committee is also known to collaborate with other rules committees to improve rules that affect both appellate practice and other substantive areas of law. This year was no exception.
This year marked the filing of the committee’s three-year cycle amendments. Prior chairs Judge Kent Wetherell, Wendy Loquasto, and Eduardo Sanchez oversaw the heavy lifting, marshalling these proposals through various subcommittees and on to the full committee (and sometimes back again). After publication, comments, work revising proposals to address the insightful comments received, and final touches, the three-year cycle report was presented to the Board of Governors and approved. It was then filed with the Florida Supreme Court early this year. As of this writing, a handful of comments have been filed with the court. The committee will address and respond to those comments and prepare in the event the court requests oral argument.
The three-year cycle amendments amend 40 of the rules. Many amendments are for clarity and consistency. A few key amendments are of note:
• Rule 9.030(c)(4) is added to require three-judge panels in all circuit court proceedings governed by the appellate rules.
• Rule 9.130(a)(3) is amended to add two new categories of nonfinal orders that can be appealed: 1) orders that determine as a matter of law that a settlement agreement is enforceable, set aside, or never existed; and 2) orders that grant or deny a motion to disqualify counsel.
• Rule 9.210(a)(6) is added to limit the number of briefs that can be filed by an attorney representing multiple parties in the same case and to require a party responding to multiple briefs to do so in a single brief.
• Rule 9.330 is substantially reorganized and additional grounds are added for requesting a written opinion, and the scope of the rule is limited to orders/opinions disposing of the appeal.
• Rule 9.331(a) is amended to require the court to notify the parties when a case or issue is under en banc consideration.
• Rule 9.800 is completely reorganized, and the citation forms in the rule are updated.
Another major initiative of the committee this year involved fashioning a compromise on a proposed amendment to the Rules of Judicial Administration that would end the extra five days practitioners receive for responding to a filing that was sent to them by email. The proposed end of the “five-day rule” prompted spirited debate across the rules committees and before the Board of Governors. After initial attempts at consensus faltered, the committee worked with the Rules of Judicial Administration Committee to put together an ad hoc committee to address lingering concerns and try to bridge the gap between the committees. The ad hoc committee fashioned an amendment that did just that, and was approved unanimously by both ACRC and RJAC. That amendment removes the now-fictitious five days, but provides that the time for a response does not run until the next business day after a filing, thus, preventing the gamesmanship from late-night filings on a Friday before a long weekend.
A third effort of the committee involved work on new rules to govern ineffective assistance claims in termination of parental rights cases. The Florida Supreme Court recognized a parents’ rights to such claims in J.B., etc. v. Florida Department of Children and Families, 170 So. 3d 780 (Fla. 2015), and created a special committee to draft rules related to them. The select committee included, among others, members of the Juvenile Court Rules Committee and the ACRC. The select committee created a new set of rules that were then approved by both committees and presented to the Florida Supreme Court. The court recently adopted a final version of those rules in In Re: Amendments to Florida Rules of Juvenile Procedure and Florida Rule of Appellate Procedure 9.146, 42 Fla. L. Weekly S357 (Fla. Mar. 23, 2017).
These larger tasks have been accomplished along with the usual work of the committee — receiving referrals, considering them in subcommittees, crafting proposals, and debating them as a group. The committee’s hard work consistently results in detailed and conscientious proposals that consistently improve appellate practice. It’s been an honor to chair the committee, and I am exceedingly proud of its work, none of which would happen without the particularly dedicated work of some members. These include our vice chairs, Tom Hall, Christine Graves, and Lance Curry, and our secretary, Tom Ward. Our dedicated subcommittee chairs include Judge John Newton, Administrative Practice; Stephanie Serafin, Civil Practice; Andrew Stanton, Criminal Practice; Judge Jeffrey Kuntz, Electronic Filing; Wendie Cooper, Family Practice; Tracy Gunn, General Practice; Elizabeth C. Wheeler, Internal Operating Procedures; David Luck, Original Proceedings; Stephanie Silver, Record on Appeal; and Michael David, Workers’ Compensation. Special thanks are due to Stephanie Zimmerman, who worked this year on a number of projects, and Judge Wetherell, who has continued as a liaison to our committee and provided guidance and advice upon request. The committee owes an immeasurable debt to Heather Telfer, our administrator and the consistent voice of reason and wisdom in the rule-making process. Lance Curry will take over as chair of the committee this summer, and he is well-equipped and prepared to lead it well.
Kristin A. Norse, Chair
Appellate Practice Certification
During the 2015-2016 certification year, the Appellate Practice Certification Committee focused its energies on performing the usual core tasks of evaluating applicants for initial certification and recertification, as well as developing the certification exam for initial applicants. The committee began the year by reviewing the results of last year’s examination, in which 15 out of 19 examinees passed, raising the total number of board certified appellate lawyers in Florida to 176. The committee closely reviewed feedback from last year’s examinees to look for ways to improve the examination and the examination process.
During this year, the committee reviewed 14 applications for initial certification. Thirteen of those applicants took the exam on March 10. The examinations had not yet been graded as of the preparation of this report. Also during this year, the committee approved 25 applications for recertification.
Obtaining sufficient peer review for applicants for both initial certification and recertification continues to be a difficult task. Many judges and lawyers either do not return peer review requests or simply state that they do not have sufficient knowledge to evaluate the applicant. This requires the committee to send out more requests for peer review and is one of the most time-consuming aspect of the application process. It is also a frustration to applicants as it delays action by the committee on their applications.
As first implemented with the 2013 exam, the committee continued the practice of pretesting exam questions before use in the 2017 exam. This practice is extremely beneficial to the drafting and editing process. The committee expresses its gratitude to the following former committee members who gave up their free time to serve as pretesters: Shannon Carlyle, Nancy Gregoire, Jack Reiter, and Debra Sutton.
Last year, the committee approved an amendment to its rules to address the treatment of cross-appeals when determining an applicant’s number of appellate actions. The proposed amendments have been working their way through the approval process this year, culminating in the Board of Governors approving them by voice vote without objection on January 20. Only approval by the Florida Supreme Court remains to be secured.
As has consistently been the case with this committee, all nine members were very engaged this year, and the committee did not miss a single meeting or deadline due to lack of a quorum or participation. The chair recognizes all eight of the other members of the committee for their substantial contributions: Vice Chair David Caldevilla, Christopher Carlyle, Andrea Cox, John Crabtree, Barbara Eagan, Marjorie Gadarian Graham, Robert Hauser, and Jamie Moses. With heavy heart, the committee bid farewell to longtime Bar certification specialist Carol Vaught this year. The committee was very happy to welcome its new certification specialist, Arlee Colman, without whose hard work and dedication the committee could not have accomplished its mission. We also express our gratitude to the BLSE director, Diana Kellogg for her assistance throughout the year.
Paul L. Nettleton, Chair
Florida is home to leading manufacturers of all types of aircraft and aircraft components, has long been a major center for flight training, and is the world’s premier gateway to space. Aviation law practice incorporates aspects of administrative law, tort law, contract law, and labor and employment law, as well as requiring the practitioner to be familiar with the technical aspects of the operation of aircraft. The Aviation Law Committee brings together attorneys experienced in all of these diverse areas to review changes in the law, new regulations and statutes, and areas of concern to practitioners. The committee periodically publishes a newsletter, Vectors , containing articles regarding aviation law and practice authored by committee members.
The committee’s meetings in the past year included formal presentations on new or novel substantive law issues. In the past year, the committee participated in discussions about new FAA regulations for commercial use of unmanned aerial vehicles, and the effects of Pilots Bill of Rights 2 and Basic Med. The committee heard from an experienced inspector of privately owned, public-use and private-use airports. In the short- to mid-term, the committee may have to discuss the legal and economic consequences to owners and operators of aircraft that may not meet the January 1, 2020, deadline to upgrade their cockpits to new ADS-B situational awareness standards imposed by the FAA.
In January, the committee organized and presented a day-long seminar on aviation law topics in conjunction with the Embry Riddle Aviation Law and Insurance Symposium. This seminar is open to any member of the Bar at no cost and includes talks by experienced practitioners regarding litigation, aeronautics and space law, aircraft registration and recording law, international treaties and conventions, airport land use, the regulations pertaining to air taxi operations, airline labor law issues, and enforcement and administrative actions by the Federal Aviation Administration. This comprehensive presentation is designed to help prepare applicants to take their certification examinations in aviation law. The presentation is also a good review for other attorneys. The committee plans to continue this outreach in the future.
Mohammad Ahmed Faruqui, Chair
Aviation Law Certification
The Aviation Law Certification Committee has continued its efforts to attract attorneys that practice law in the specialized area of aviation law to become board certified. There are currently 37 board certified aviation law attorneys in the state of Florida. We expect to see growth as we had nine applications for the 2017 exam with five sitting for the examination. We are looking forward to the announcement of the exam results. Four attorneys who were certified in 1997 and 2007 are due for recertification this year and all four are expected to apply for recertification.
Our committee continues to actively recruit qualified attorneys practicing in the broad field of aviation law to take the aviation law certification exam. Board certification not only helps consumers, it benefits the legal profession by requiring high standards and professionalism in the practice of law. Aviation law encompasses many subspecialties, such as FAA enforcement actions, aircraft transactions, litigation, airline labor law, airport land use, and even space law. To become a certified specialist, a lawyer must be an active member in good standing of The Florida Bar, have practiced law for a minimum of five years, pass a written examination in the specialty area, be favorably evaluated as to ability and experience in the specialty field by judges and other lawyers, and exhibit outstanding character, ethics, and a reputation for professionalism. A member of The Florida Bar who has earned this career achievement may hold themselves out as “board certified,” “expert,” or “specialist.”
The certification committee, under the leadership of Vice Chair Jerry Trachtman, successfully developed a certification examination study guide, in addition to the examination specifications. This makes it much easier for the committee to make changes in the document when there are changes in the law. It is also a more complete list of laws, regulations, and cases applicable to the exam administered at the time. This will be a better overall resource for test takers to more effectively prepare for the exam.
I thank former committee members who have served as exam pretesters: Bruce Green, Robert E. O’Connell, John M. Murray, Robert L. Feldman, Timothy M. Ravich, Mary P. Burnett, and Jeffrey R. Ludwig. We extend special thanks to Karen Barbieri, the Board of Legal Specialization and Education’s examination consultant, for critiquing and sharing her expertise in exam writing.
I thank Vice Chair Jerry Trachtman for his invaluable support and dedication this past year. I also thank all other committee members: Don Andersen, Galen Bauer, John Eversole III, Stuart Goldstein, Patricia Leid, Charles Morgenstein, and Chad Roberts for their dedicated service and hard work to make this year a success for our committee. I especially thank our Bar staff liaison, Carol Vaught, who has tirelessly provided organization, invaluable knowledge, and wise guidance to all of us throughout the year in direct support of our mission.
Patrick Phillips, Chair
Board of Legal Specialization and Education
This year, the Board of Legal Specialization and Education (BLSE) moved forward with its policy of attempting to standardize the certification process in furtherance of its mission statement, which was adopted last year: “The mission of the Board of Legal Specialization and Education is to improve the practice of law and the delivery of legal services to the public through the enhancement of technical skills and substantial competence, united under the highest standards of professionalism. In pursuit of that mission, the BLSE oversees the award of board certification, evaluates and accredits continuing legal education, and ensures all Florida Bar members comply with the educational requirements established by the Supreme Court of Florida.”
The BLSE administers and oversees one of the largest and most diverse board certification programs in the country. Florida’s program certifies lawyers who have practiced law for at least five years, passed a rigorous test of their skills within their chosen area, demonstrated involvement and professionalism, and have met the other requirements established by the Florida Supreme Court. Board certification by The Florida Bar has been described as the gold standard for verifying a lawyer’s competency, experience, reputation, and professionalism; or as described by former Justice Anstead, “the capstone of a lawyer’s career.” Certification by The Florida Bar is an objective way for the public to evaluate lawyers and motivates lawyers to hone and showcase their skills.
There are currently over 5,000 lawyers who are certified by The Florida Bar. These lawyers are certified in 26 certification areas that have been approved by the Florida Supreme Court. The area certification committees enforce and review regularly approved area standards for certification and exam content, suggest amendments as they feel are necessary, evaluate applications for certification and recertification to ensure that the approved area standards are being met, create and grade the annual certification examination, and serve as the first level of reviewing examinations when grading is challenged by an applicant. The time, energy, and enthusiasm invested by the members of the area certification committees is extensive and much appreciated by the BLSE.
Each of the area certification committees is assigned a staff liaison to guide the committee through its tasks and provide continuity despite the changing membership. The certification specialists provide invaluable assistance to the area committees. They are an integral part of the certification program and their efforts also are much appreciated by the BLSE.
The certification program was the subject of an overall review by the Board of Governors’ Program Evaluation Committee (PEC) last year. That review caused the BLSE to examine the program itself from the ground up and see how and where it could be improved. The BLSE is grateful to the PEC and the Board of Governors for their continued support of board certification, as well as their consideration of the proposals, amendments, and appeals that make their way to the Board of Governors and its committees every year.
The BLSE voted to continue the annual Certification Forum, which is our successful gathering at The Florida Bar’s Annual Convention, where BLSE members and members of the area certification committees exchange thoughts, comments, ideas, and constructive suggestions for improving the program. The BLSE realizes that the greatest improvements to the program come when all involved are communicating and on the same page.
The BLSE also oversees the establishment, amendment, and enforcement of continuing legal education (CLER) requirements for all lawyers, basic skills course requirements for new lawyers, and course accreditation for groups providing CLE courses. The Legal Specialization and Education (LSE) staff takes principal responsibility for carrying out this duty. When necessary, certain issues are brought to the BLSE for discussion and determination.
My association with The Florida Bar Board Certification Program has been one of my proudest achievements as an attorney. I have progressed from initially becoming Florida Bar board certified in marital and family law, passing the examination, and all other requirements on my first application. I then became a member of the Marital and Family Law Certification Committee, which was a wonderful learning experience and allowed me to make life-long friends throughout the state. I became vice chair, and then chair of that committee, and served as its exam-grading consultant for three years after my term limits expired. that time, my partner, Terry L. Fogel, was on the BLSE and ultimately became its chair. Once her time on the board had expired, I was fortunate enough to become a member, and now serve as chair. I have an energetic and hard-working board with which to work. I especially recognize my Vice Chair Steven Rubin, who has carried the torch on many of our projects this year. I cannot conclude without recognizing a debt of gratitude for all the hard work and leadership of Legal Specialization and Education Director Diana Kellogg and her dedicated staff. Diana and her staff made my year as BLSE chair easy and incredibly pleasant. They are true professionals.
Scott L. Rubin, Chair
Business Litigation Certification
The two primary functions of the business litigation certification committee are to review applications for initial certification and recertification and to grade the certification exam. In support of these functions, the committee reviews and improves the application forms, updates the exam, and seeks to clarify the rules applicable to business litigation certification. This year was no exception.
The committee is composed of eight board certified business litigators and one sitting circuit court judge who is a board certified business litigator. Each member gave freely of their time to meet in person to review the initial certification and recertification applications we received. The purpose of the committee meeting in person has always been to allow a discussion of the applications between the committee members, which is difficult to achieve electronically. The committee met four times this year, and our members are all active practitioners who take time from their busy schedules to travel from across the state to meet. This year, the committee saw a great number of recertification applications and a good number of initial certification applications supporting the fact that members of the Bar value the board certification program. The approved initial certification applications cleared those applicants to sit for the exam.
Each year the committee strives to make the exam challenging, but not impossible. For the first time, the committee placed sample exam and essay questions with answers on its website alongside the existing list of suggested study materials. It is the committee’s goal to maintain a challenging exam so that the certification is accorded a maximum amount of respect by all members of the Bar and the judiciary. Electronic discovery has and will continue to impact the practice of law in Florida, and business litigation is no exception. Recognizing this reality, the committee undertook great efforts to incorporate electronic discovery into all parts of the exam. To ensure the integrity of the exam, one committee member drafts a section while another reviews the questions and answers. As a second level of review, the committee sends the exam to select board certified business litigators to pretest the exam for certification credit.
In its continuing effort to improve the application process, the committee also updated and simplified select application forms. The committee also took up the requirement in the applicable rules of a jury trial for initial certification. Based on the perception after several years of study that otherwise qualified attorneys may not be seeking business litigation certification because they have not tried a jury trial and to help the Bar determine if it should modify that requirement to allow a qualifying jury trial seminar to substitute for the trial, the Bar approved and sent an email survey to all board certified business litigators on the topic. The limited responses disfavored any change, which the committee has presented to the BLSE for its consideration. The committee thanks all those who responded to the survey.
Board certification remains one of the highest honors that any practitioner can achieve. Through its work, including committee members speaking at seminars on the certification process, the committee has hopefully reinforced that fact and supported the Bar’s overall certification program. Personally, it has been my great honor to chair the Business Litigation Board Certification Committee this year. I extend my gratitude to the members of the committee for their time, work, and commitment. I also thank those who applied for the open committee seats and encourage those who were not selected to seek appointment to a future seat.
To those that the committee recertified and those who will shortly become newly certified, always remember that with the badge of board certification, you carry the obligation to demonstrate you are the epitome of a professional and a true expert in business litigation. To those who will seek certification in business litigation this fall, thank you for undertaking the effort and best of luck in the endeavor.
David Steinfeld, Chair
The Florida Bar Citizens Advisory Committee is composed of 12 nonlawyer Floridians with varied interests and backgrounds who serve to provide two-way communication between the state’s major citizen constituencies and The Florida Bar Board of Governors. Its objectives are to serve as a feedback mechanism and sounding board on Bar plans and programs and to advise the Bar regarding public understanding and support of significant legal and justice issues. Up to three attorney members are also appointed to the committee annually to serve as resources. The committee meets three times a year, twice in conjunction with Board of Governors meetings and once at annual convention, and also meets by teleconference on certain matters between in-person meetings.
Four new members appointed for the 2015-16 year were Petula Burks, Ft. Lauderdale, director of public affairs for the City of Miami Gardens; Sylvia Carra-Hahn, Tampa, retired clinical psychologist; Louis Kalivoda, Gainesville, retired instructor and adviser for the Institute of Public Safety at Santa Fe College; and Herbert E. Polson, St. Petersburg, retired director of governmental relations for the City of St. Petersburg. These members will serve three-year terms ending in 2019.
The chair this year is Lorna Brown-Burton, a member of the Board of Governors representing the 17th Circuit. The vice chair is Judy Doyle of Orlando, who is in her third year serving on the committee. Doyle is a retired newspaper journalist and an emeritus nonlawyer member of the Florida Board of Bar Examiners. The lawyer members are Kristin Norse of Tampa, and as liaison from the BOG Communications Committee, Dennis Kainen of Miami.
For the 2016-17 Bar year, the committee met at the July and January Board of Governors meetings. President Bill Schifino attended both meetings and expressed the appreciation of the entire board for the committee’s contributions.
In July, the committee discussed proposed new lawyer referral service rules that are less restrictive and designed to open up more opportunities for lawyers to participate, while promoting access to the civil justice system. The presenters were Carl Schwait, chair of the BOG Board Review Committee on Professional Ethics; John Stewart, chair of the BOG Technology Committee; and Bar staff Lori Holcomb and Elizabeth Tarbert. Committee members also heard about proposed legislation to impose term limits on judges and the deleterious effects that would have on the judicial system and asked questions of the Bar’s lobbyists and the staff liaison to the BOG Legislation Committee. Discussion on topics for further study continued from the June meeting, including access to legal services, increased information output to the public, increased civic education in schools, ways to make new attorneys practice-ready, increased visibility of attorneys in their communities, increased public awareness of the Bar’s regulatory responsibilities, public education on the Constitution Revision Commission, and ways to enrich and stimulate attorneys to avoid complacency. These topics were recommended for discussion by former CAC member Val Demings (2013-2016). A subsequent conference call was held to continue these discussions and acknowledge the status of the Bar’s efforts in each of those areas.
In January, the committee discussed and provided input on the Program Evaluation Committee’s review of the CAC to PEC member John Stewart. Materials were provided regarding the 2012 public education program for merit retention — The Vote’s in YOUR COURT — and efforts to develop a similar educational program for the Constitution Revision Commission (CRC) were discussed. In addition, President Schfino provided an overview of the CRC’s purpose and process in a PowerPoint presentation. BOG Legislation Committee Chair Gary Lesser presented an outlook for the 2017 legislative session and members were asked to review the Bar’s legislative advocacy and positions at www.floridabar.org/legislativeactivity.
A conference call in February was held to discuss topics raised by member Steven Deneke and to gain feedback on the Bar’s grievance system informational webpage www.floridabar.org/attorneydiscipline. Deneke’s topics were to move the agenda item for CAC members’ concerns and feedback/open forum earlier in the agenda (instead of being the last item — time usually runs out before that item can be addressed); provide contact information for all CAC members so conversations could continue between meetings; highlight the Bar’s programs to prevent violations of the rules of professional conduct; and target audiences for education on the CRC.
The third and final meeting of the 2016-2017 Citizens Advisory Committee will be held at the 2017 Florida Bar Annual Convention, and an orientation will be given to the four new members appointed to the committee for 2016-2019. Leaving the committee after serving three-year terms are Judy Doyle, Orlando; Steven Deneke, Gulf Breeze; Sharon B. Middleton, Ponte Vedra; and Richard A. Sarner, M.D., Jupiter. Their service has been greatly appreciated.
More information on the Citizens Advisory Committee, including its charter and members’ photos and biographies, can be found at www.floridabar.org/citizensadvisory.
Lorna Brown-Burton, Chair
City, County and Local Government Law Certification
As chair of the City, County and Local Government Law Certification Committee of The Florida Bar, I would like to thank our committee members for all of their hard work. The 2016-2017 committee included Vice Chair Pamala Ryan, Donna Marie Collins, Dean DiRose, Anne Gibson, Katherine Latorre, Rosemary Perfit, Robert Pritt, and Rafael Suarez-Rivas.
We were guided and assisted in our work by the following staff of The Florida Bar: Rebecca Frimmel, Michelle Lucas, and Allison Armour. Even though this is Allison’s first year with our committee, she has done an outstanding job and helped each of the members meet their assignment objectives.
We also recognize the many board certified attorneys who critiqued our work during the pretesting process, giving their time to review the questions the committee prepared for use in the 2017 examination. The feedback we received is invaluable, and I encourage each board certified attorney to participate as a pretester if a request is received. We also greatly appreciate prompt feedback when references are requested for our applicants.
I have enjoyed my service as chair of the committee and am greatly impressed by the outstanding professionals who volunteer for this task. Our work is challenging, rewarding, and well worth the investment of time and resources. We all learn much from each other as we develop the exam, and we are gratified by the high quality of applications we receive for certification. There are now 251 lawyers certified in our practice area, and our goal is to maintain the high standards set by our predecessors back in 1997. I cannot thank the committee enough for helping make this year a success.
Kenneth Anthony Tinkler, Chair
Civil Procedure Rules
The Civil Procedure Rules Committee has worked diligently this year on both proposed new rules and proposed amendments to existing Florida Rules of Civil Procedure. The committee responds to proposals arising from a variety of sources, including judges, lawyers, bills from the legislature, and directions from the Florida Supreme Court.
The amendment process for the civil rules takes extraordinary effort from our volunteer committee members. The members of the committee thoroughly evaluate and study each of the proposals and referrals. After fully vetting a proposed amendment, the committee decides whether to recommend a change to an existing rule or the adoption of a new rule. Proposed amendments are presented to the Board of Governors and the Rules of Judicial Administration Committee, and are simultaneously published in The Florida Bar News, inviting comments from the Bar. Eventually, the rules and comments are presented to the Florida Supreme Court for its final decision as to whether and what extent to amend the rules or adopt new ones.
It has been a productive Bar year for the committee. In In re Amendments to Florida Rule of Civil Procedure, 199 So. 3d 867 (Fla. 2016), the Florida Supreme Court approved 27 amendments or additions proposed in the committee’s 2016 three-year cycle report. More recently, the Florida Supreme Court also approved the committee’s out-of-cycle report regarding the Prospective Juror Questionnaire, Form 1.983. The committee proposed significant amendments, including adding directions to the parties and trial courts to minimize disclosure of prospective jurors’ sensitive information and modifying the form to allow all persons who have custody of children (not only mothers) and law enforcement personnel to be excused from juror service if those persons choose. In case SC16-996, the Florida Supreme Court adopted those proposals and promulgated modified Form 1.983. In re Amendments to Florida Rules of Civil Procedure – Form 1.983 (Prospective Juror Questionnaire), 42 Fla. L. Weekly S212 (Fla. Feb. 23, 2017).
The Civil Procedure Rules Committee also recently concluded a joint project with the Appellate Rules Committee, Family Law Rules Committee, Criminal Procedure Committee, and Rules of Judicial Administration Committee to eliminate the five-day extension of deadlines after electronic service. The proposed changes will be considered by the Board of Governors at its next meeting.
In response to legislative changes, the committee has proposed significant amendments and additions to the rules governing proceedings supplementary. See Ch. 2016-33, Laws of Fla. The committee has approved amendments to Rule 1.570 and proposed new forms designed to assist practitioners and judges to more easily comply with the changes to F.S. §56.29 (2016). The committee has voted to file an out-of-cycle report to expedite the proposed changes.
This year, the committee has worked on several rule amendments that have been approved for inclusion in the 2019 cycle report. Among them are new Rule 1.535 on remittitur and additur and amendments to Rule 1.310(b)(4) to delete antiquated technology terms. Among the 20 currently active subcommittees, the committee is close to finalizing proposals for a rule amendment or new forms relating to proposals for settlement, sham pleadings, and e-discovery rules.
I thank the entire Civil Procedure Rules Committee for the dedication and selfless hard work for the betterment of civil practice in Florida courts. I give special recognition to Alan Landerman, who has worked as chair of the Proposal for Settlement Rule and Forms Subcommittee over numerous years despite constant new laws on the topic; Rachel Loukonen for her work on numerous subcommittees and as a committee secretary; and Judge Jacqueline Hogan Scola, our immediate past chair, who continues to work diligently as the chair of numerous subcommittees. I especially thank the committee vice chairs, Judge Rodolfo Ruiz, Jane Kreusler-Walsh, and Miguel Chamorro. Each of them has worked incredibly hard as leaders of the committee and as chairs of numerous subcommittees.
It has been an honor to serve as chair of the committee, filled with so many hardworking and accomplished lawyers and judges.
R.J. Haughey II, Chair
Civil Trial Certification
Civil Trial Law is the practice of law dealing with the litigation of civil controversies in all areas of substantive law before Florida circuit courts or other equivalent courts of other states and federal district courts. In addition to the pretrial and trial process, “civil trial law” includes evaluating, handling, and resolving civil controversies prior to the initiation of suit.
Civil Trial Law is one of Florida’s first certification areas, having been approved by the Florida Supreme Court in 1983. Currently, Florida has over 1,000 board certified civil trial lawyers. More than 100 board certified civil trial lawyers have been continuously certified since 1983.
The Civil Trial Certification Committee is charged with the responsibility of reviewing and recommending changes to the standards for certification in civil trial law; evaluating applications for certification and recertification; and preparing and grading the annual examination, which is a requirement for all applicants. In 2016-2017, the committee reviewed 161 applications for recertification. There were 27 applicants for initial certification that were eligible to sit for the March examination. The committee will grade the examinations and results will be sent to newly board certified attorneys before June 1.
As a trial lawyer gains experience and reputation, that lawyer usually handles more complicated matters and, therefore, will try fewer cases. Because of this reality of trial practice, the Civil Trial Committee’s proposed changes to Rules 6-4.1 through 6-4.4 Standards for Board Certification in Civil Trial Law. These changes were approved by the Board of Governors on May 20, 2016. The current standards will be more representative of most trial lawyers and will establish the lawyer’s past credentials.
A member of the Civil Trial Certification Committee participated in The Florida Bar Trial Lawyers Section’s Annual Civil Trial Update and Board Certification Review in order to provide information on the examination process. This year, as in recent years, a portion of the examination was presented by video so that the applicants would have an opportunity to better demonstrate their understanding of courtroom performance skills.
The committee members, Chair Woody Isom, Vice Chair Chuck Ingram, Jeff Fleming, Henry Hunnefeld, Charles Morehead, Michael Feiler, Maria Trenzado, Lou Mracheck, Troy Rafferty, Jeff Tutan, John Wesley, and Tom Culmo, gratefully acknowledge the efforts of Lisa Kustel, The Florida Bar’s civil trial certification specialist, whose knowledge and competence made the application process smoother and our work so much easier.
A. Woodson Isom, Jr., Chair
Clients’ Security Fund
The Florida Bar Clients’ Security Fund was established in 1967 as a voluntary, discretionary fund to reimburse clients who have suffered a monetary loss as a result of misappropriation, embezzlement, or other wrongful taking by a member of The Florida Bar in the course of an attorney-client relationship. This is the fund’s 50th year of operation. The Clients’ Security Fund is currently financed by $25 of every Florida Bar member’s annual dues as well as each application to appear pro hac vice in Florida, and has over $2.5 million budgeted for fiscal year 2016-2017 to pay claims brought by former clients. The fund reimburses clients under two circumstances: when an attorney takes an advance fee, but then fails to provide any services up to a maximum amount of $5,000; and for misappropriation or theft of client monies up to a maximum amount of $250,000. In the last fiscal year, the fund received 329 new claims and paid out nearly $2 million to clients for claims filed against 139 Florida lawyers. As of the date of this report, for the fiscal year ending June 30, the fund has received 129 new claims against 75 lawyers and has currently approved 93 claims, with approved losses of over $2.1 million. Claims are paid only after a lawyer has been disbarred, suspended, incapacitated, or in the event of a death of an attorney where a client’s money is unaccounted for. Fee claims and misappropriation claims less than $1,000 are paid promptly after approval. All other claims are paid on a pro-rata basis after the end of the fiscal year.
Since its inception, the Clients’ Security Fund has processed over 12,200 claims and paid out over $36.8 million dollars to victims of attorney theft.
Claims are filed in writing by the former client, reviewed by Bar staff and, when appropriate, referred to a voluntary member of the committee for investigation. The 2016-2017 Clients’ Security Fund Committee is composed of 25 of these volunteer attorneys appointed from all regions of Florida by the Bar’s president-elect. The committee meets four times during the year, but its volunteer members are actively engaged in the review and investigation of claims throughout the year. This is a true working committee. Membership on the committee is not for the faint of heart, but involves extensive time and energy in the investigation of claims and preparation of reports, similar to that which counsel would undertake in handling its own client matters. Guided and assisted by dedicated Bar staff, claims are thoroughly investigated, and members make recommendations for approval or denial by the committee. Many investigations require active debate at committee meetings, and discussions of claims at meetings are spirited, but always with the goal of doing the right thing for the injured client as well as being good stewards of the fund. Although committee meetings are confidential, final action on claims is subject to limited disclosure. Committee recommendations are ultimately submitted to the Board of Governors for final consideration.
As lawyers, we tend to hold ourselves in high regard, especially after the rigors of law school, scrutiny by the Florida Board of Bar Examiners, and continued oversight by The Florida Bar throughout our careers. Even though we feel this way about ourselves, during the investigation of claims and discussions with clients, we are repeatedly humbled by the notion that individual clients impart an unbelievable amount of trust in their chosen counsel. Breach of this trust devastates clients financially
and emotionally. Bar staff and the Clients’ Security Fund Committee are devoted to repairing the public’s trust in members of the Bar and the legal system in general. In return, the hard work is rewarded as most claimants are very grateful. Some, even when their claim is denied, are just grateful that someone cares about their ordeal and listened to them.
There are more than 104,000 lawyers in the state of Florida, and claims under the Clients’ Security Fund are made against less than 0.1 percent of Florida lawyers. The work of the Clients’ Security Fund is an integral part of recovery and mitigation of losses to clients and the public whose trust and confidence in the legal profession has been negatively impacted by the wrongful acts of a few. The fund is one way in which the Bar strives to improve the public’s perception of Florida lawyers as a whole and to restore confidence in the profession.
I have served on this committee for four years of my six-year term. As is the case for every investigating member of the committee, each call to an injured client allows me the chance to right a wrong and attempt to re-establish lost trust in lawyers. On the committee, I have met some of the finest lawyers the Bar has to offer. Every member of the committee is to be commended for his or her diligence and hard work in processing claims.
All who serve on a Florida Bar committee, especially the chairs, know that this important work would not be accomplished without the dedication of Bar staff. Committee members and the clients rely heavily on Bar staff, and without their commitment, we could not do our jobs. I profoundly thank P.J. Osborne, CSF administrator; Stacey Thrash, administrative support; and Lori S. Holcomb, division director of Ethics and Client Protection, for the tremendous effort, work, and discipline they have provided to this committee.
Leslie Larkin Cooney, Chair
Code and Rules of Evidence
The Code and Rules of Evidence Committee (CREC) is one of 10 rules committees, but owing to its focus on the Florida Evidence Code that appears in F.S. Ch. 90, its operations are unique. To carry out its mission, CREC regularly evaluates the Florida Evidence Code to see where improvements may be made and advises the Florida Supreme Court whether it should adopt legislative amendments that affect the Florida Evidence Code to the extent they are procedural.
CREC was the petitioner regarding whether the Florida Supreme Court should adopt either the Frye or Daubert standard regarding the admission of expert opinion testimony. That issue was resolved in the Florida Supreme Court’s February 16 opinion: In re: Amendments to the Florida Evidence Code, Case No. SC16-181. It is an opinion that should be required reading for Florida trial lawyers.
This year, the committee’s Legislative Relations Subcommittee, chaired by Chris Searcy, with Michael Strauch as vice chair, continues to monitor legislation in order to review and advise the full committee on any actions it should take with regard to new laws that impact the evidence code.
The Code Improvement Subcommittee, chaired by Wayne Hogan, with Lo Bielby as vice chair, is monitoring all new caselaw from the Florida Appellate Courts concerning evidence, the workings of the federal judiciary, and Congress related to the development of the federal evidence code, and scholarly research discussing evidence law and trends.
The Education Subcommittee, chaired by Lisha Bowen, continues ongoing work organizing our annual “Hot Topics in Evidence” seminar. The seminar, currently scheduled for June 9 in Orlando, is produced by CREC, and co-sponsored by the Trial Lawyers’ and Criminal Law Sections. With an outstanding roster of speakers, including judges, professors, and leading practitioners, it should be an exceptional educational event. We hope to see you there.
Another of our subcommittees, chaired by Jim Floyd, maintains a LinkedIn page and has established a newsletter that both serve to keep CREC members, and any others who subscribe, up-to-date regarding developments in evidence law.
The Fast Track Review Subcommittee, co-chaired by Kimberly Gustafson and Dean Xenick, continues to monitor any bills impacting the Evidence Code, which the full CREC has not yet had the opportunity to review.
The CREC co-chairs, Perry Adair, Patricia Dodson, and James Floyd, have done an exemplary job of helping move our work forward. Our secretary, Melissa Bodnar, has kept us well organized with meticulously prepared minutes summarizing our proceedings. Our liaisons to the other rules committees: David Jones, Sheila Norman, G.C. Murray, Jr., Patricia Dodson, and James Floyd regularly have kept CREC apprised of matters being considered in those other committees that may impact our work. This year would not have been a success without efforts of the members of CREC whose work is mentioned above. I am grateful to them, and to all of CREC’s membership, for working together with me to make it a successful year.
Finally, I extend my sincere appreciation to Krys Godwin, CREC’s interim Bar liaison, for her invaluable experience and assistance; Mikalla Davis, CREC’s new Bar liaison, for her invaluable assistance; Mike Hooker, CREC’s liaison to the Board of Governors; and Bill Schifino, our Bar president for 2016-2017, for allowing me the privilege of serving as chair of this committee.
Gregory P. Borgognoni, Chair
Condominium and Planned Development Law Certification
This committee certifies attorneys whose practice of law involves 1) serving as counsel to community associations, developers, lenders, property owners, community association members, sellers, purchasers, governmental agencies, and investors in matters related to condominiums and planned developments; 2) drafting governing documents or their amendments and preparing filings with governmental agencies that regulate community associations or planned developments; 3) serving in or for governmental agencies that regulate community associations or planned developments; 4) representing parties in construction lien and defect claims, collection of assessment actions, covenant and rule enforcement and dispute resolution, such as litigation, arbitration, and mediations in matters relating to community associations or planned developments; and 5) planning, developing, constructing, and financing of condominium or planned development communities. This area of certification was approved by the Florida Supreme Court in 2016. The Florida Bar, through the oversight of the Board of Legal Specialization and Education, will start to certify attorneys as Florida Bar board certified condominium and planned development law attorneys on June 1, 2018. The first examination will be administered in March 2018.
During the 2016-17 fiscal year, the committee met eight times by conference call and in person to develop the exam specifications, standing committee policies, and certification application for either the examination or the exam exemption. A study guide will also be published on the certification website to assist applicants preparing for the examination. The committee also started working on the inaugural examination that will be administered. After July 1, it will start to consider applications that are submitted by interested applicants, which will include comprehensive peer review and demonstration of substantial involvement in this practice area. The credentials of the first class of applicants will be reviewed carefully by the committee. To assist applicants in qualifying for the examination, The Florida Bar has awarded condominium and planned development law certification credit for qualifying CLE programs previously presented if the applicant for the 2018 exam completed the CLE programs between July 1, 2014, and August 31, 2017.
Members of the Condominium and Planned Development Law Certification Committee are Margaret (Peggy) Ann Rolando, chair, Miami; Christopher N. Davies, vice chair, Naples; Joseph E. Adams, Fort Myers; Peter M. Dunbar, Tallahassee; Mark F. Grant, Ft. Lauderdale; Lisa A. Lerner, Miami; Chad M. McClenathen, Sarasota; Karl M. Scheuerman, Tallahassee; and William P. Sklar, West Palm Beach. I thank each committee member for their outstanding contributions to the committee during its initial year.
On behalf of the entire committee, I express our appreciation for the knowledge, insights, and support of Carol Vaught, our excellent Bar staff liaison, who worked with the committee. We also thank Steven D. Rubin, our Board of Legal Specialization and Education liaison, for providing key advice as to Bar policies and procedures.
I encourage all eligible attorneys to apply for certification. This designation identifies an individual to other attorneys and to the public as having specialized knowledge, and as importantly, having been evaluated by their peers.
Margaret Ann Rolando, Chair
The Constitutional Judiciary Committee’s mission is to strengthen the public’s understanding of the role of the judicial branch of government, the Constitution, the rule of law, and the role of judges and juries in the administration of justice. In pursuit of that mission, the committee completed many projects and achieved several goals:
• Annual Convention: ‘The Constitution Revision Commission and Florida’s Judiciary’ — If history is any guide, the newly seated Constitution Revision Commission will consider amendments affecting Florida’s judiciary. With a panel including a former Florida Supreme Court justice, academic experts and attorneys, this Presidential Showcase seminar will examine the issues surrounding selecting and retaining Florida’s judges. The goal is to ensure that Florida Bar members are informed as to how CRC proposals may affect the judiciary and, in turn, the practice of law in Florida. The discussion will be moderated by Judge Michelle Sisco, a 13th Circuit Court judge and chair of the Constitutional Judiciary Committee. Panelists are:
• Florida Supreme Court Justice Charles T. Wells (Ret.)
• Professor Chris W. Bonneau, associate professor of Political Science, University of Pittsburgh
• Dean Cannon, former speaker, Florida House of Representatives
• Brian Fitzpatrick, professor, Vanderbilt University Law School
• Richard Levenstein, returning member of the Constitutional Judiciary Committee
• Professor Stephen J. Ware, law professor, University of Kansas School of Law
• Guide for Florida Voters — The Florida Bar’s Guide for Florida Voters — a project of the CJC — answers questions about judicial elections, such as:
• What is the difference between a county and circuit court judge and an appellate judge?
• Why is it important to vote in judicial elections and merit retention elections?
• What exactly does a judge do?
This six-page guide, in its third edition for the 2016 election, was redesigned and streamlined this year. It was printed in both English and Spanish. More than 130,000 copies were distributed statewide through the League of Women Voters of Florida, county supervisors of elections, tax collector’s offices, and voluntary bars. Residents, civic groups, and others also requested free copies, with more than 15,000 copies mailed upon request. The Cuban American Bar Association distributed most of the 5,000 printed in Spanish.
• The Vote’s in Your Court — Once again, The Vote’s in Your Court web page, www.floridabar.org/thevotesinyourcourt, served as a hub for election-related information. It posted results of The Florida Bar Merit Retention Poll; a link to the voter guide; voter resources; and judicial biographies: This year, the page amplified its reach with frequent posts on Facebook and Twitter (@VotesInYrCourt) providing information on merit retention as well as timely news, such as the extension of Florida’s voter registration deadline to Oct. 18.
• Benchmarks — Benchmarks is part of The Florida Bar Strategic Plan to “enhance the legal profession and the public’s trust and confidence in attorneys and the justice system.” Under it, attorneys earn CLE credits by attending training sessions on how to make Benchmarks presentations in their communities. They also can earn CLE credit for making presentations.
Chair Michelle Sisco; Annette Pitts, executive director of the Florida Law Related Education Association and developer for the committee of the Benchmarks program; and committee member Richard Levenstein presented Benchmarks to the 500 judges attending the Conference of Circuit Court Judges in Ponte Vedra in August. The presentation was a success, with good reviews and evaluations.
The committee holds Benchmarks training seminars at The Florida Bar’s fall, winter, and annual convention meetings. The goal of Benchmarks is to train attorneys on how to make presentations so they, in turn, can give talks to civic and community groups. All Benchmarks overviews and supporting materials are at www.floridabar.org/Benchmarks.
The committee added two presentations in 2016. “ Florida v. Jardines — A Case Study” examines a state case that went to the U.S. Supreme Court. The presentation asks participants where they feel they have the most privacy versus the least: in a car, airport, bathroom, cellphone, their body? After this warmup exercise, Jardines examines the Fourth Amendment, and asks: Is a dog sniff on the porch of a suspected grow house by a trained narcotics detection dog a search under the Fourth Amendment?
The second presentation, “Sorting Out the Courts,” was developed in response to people wanting a presentation about Florida’s court system. The warmup has cut-up puzzle pieces of the state court system and federal court systems. In small groups, audience members assemble each system. Then the presentation gives a state case and a federal case, and participants must map them out through the courts.
The Benchmarks portfolio now includes 13 presentations in three categories: constitution and the Bill of Rights; courts and the judicial branch; and special topics. All presentations are available at www.floridabar.org/Benchmarks.
Two additional Osher Lifelong Learning Institute sessions were held at the University of South Florida, with 12 to 15 people attending each six-week class session. Other sessions were held for government employees in Tallahassee; for judges in Broward County; at various locations of the Martin County Library System; for the Florida Campus Compact Conference at Florida State University; and the State University System Board of Governors.
• Outreach to Law Schools — Chair Sisco did a Benchmarks training in August at the University of Florida for the 1L class. Annette Pitts and member Tom Graham made a presentation for 220 first-year law students at St. Thomas Law School. Alvin Balent, Jr., reached out to the dean and student leaders at Nova Southeastern to acquaint them with the program.
• Florida Bar Reporters’ Workshop — Each fall, The Florida Bar sponsors a workshop in Tallahassee for reporters new to legal reporting or to Florida. Twenty-three journalists attended the 27th annual Reporters’ Workshop in September. The workshop is held at the Florida Supreme Court with a dinner on the Capitol’s 22nd floor. Annette Pitts along with Florida Bar President Bill Schifino co-presented the Benchmarks session on “Every 20 Years” about the Constitution Revision Commission. The interactive session, which calls on audience members to answer questions and participate, was well received.
• Journal Article — Member Alvin Balent, Jr., drafted an article for The Florida Bar Journal that examines how the Constitution Revision Commission works through an interview with former Florida Attorney General Bob Butterworth, who served on the 1998 CRC.
In the 2017-18 year, the committee will support The Florida Bar in educating members and the public about the Constitution Revision Commission. The committee will continue outreach to law schools to get Benchmarks included in orientation programs. Benchmarks will continue to be used to educate the public, and a new tracking system will be added on The Florida Bar website, so the committee can have a fuller understanding of the reach of the program.
Thanks to The Florida Bar leadership for appointing attorneys to the committee who are willing not only to attend meetings but also to teach fellow Floridians about the importance of the courts and the rule of law by making Benchmarks presentations.
I was helped most ably by Vice Chair Sacha Dyson, who initiated the committee’s OLLI outreach, and Judge Alan Forst and member Richard Levenstein in organizing the annual convention seminar. The committee could not do the work it now does without Annette Pitts, executive director of the Florida Law Related Education Association. She is a tireless worker on behalf of adult civics education.
To all of you, my thanks.
Judge Michelle Sisco, Chair
Construction Law Certification
Construction Law deals with matters relating to the design and construction of improvements on private and public projects including, but not limited to, construction dispute resolution, contract negotiation, preparation, award and administration, lobbying in governmental hearings, oversight and document review, construction lending and insurance, construction licensing, and the analysis and litigation of problems arising out of the Florida Construction Lien Law, F.S. Ch. 713; the Little Miller Act, F.S. §2 55.05; and the federal Miller Act, 40 U.S.C §270. Construction law is the fourth largest certification area with 363 board certified construction lawyers and continues to experience growth. In 2014-2015, the committee received 57 initial applications. That number was surpassed in 2015-2016 when the committee received 59 initial applications. In 2016-2017, the number of initial applications increased again to 62.
The Construction Law Certification Committee continues to enjoy very strong support from the Construction Law Committee through the annual exam review course, which was held over three days in March in conjunction with the annual Construction Law Institute in Orlando. The efforts of the Construction Law Committee reinforce the high ethical and competence standards expected of Florida Bar board certified construction law attorneys.
The Construction Law Certification Committee members have devoted countless hours writing exam questions, grading exams, and thoroughly reviewing certification and recertification applications. The increasing interest in construction law certification has served to increase the committee’s workload, and I thank Vice Chair Amanda Baggett and committee members Alex Espino, Fred Dudley, Kim Gessner, Bruce Partington, Jayne Pittman, Robert Dill, and Daniel Te Young. I recognize the dedication of the committee’s certification specialist, Bekki Balko, who has kept the committee well organized and on track.
Steven Sellers, Chair
Consumer Protection Law
The Consumer Protection Law Committee educates consumers and Bar members about consumer protection laws and issues, as well as provides expert resources to attorneys, judges, and lawmakers. The following highlights the accomplishments of the committee this year:
• Full-day Seminar for Annual Convention — The committee is planning a day-long seminar, “Consumer Class Actions: Hot Topics and Future Trends,” with 12 presenters at the annual convention. The seminar will focus on issues facing both consumer and corporate attorneys in high-stakes consumer litigation and will help attorneys on both sides, from entry-level ones wanting to learn more to more advanced practitioners. Participants will:
• Be introduced to class certifications.
• Gain insight on litigation strategies and settlement negotiations.
• Examine alternative dispute resolution.
• Learn plaintiff and defense-side perspectives on ethical issues.
• And be introduced to an array of class action litigation areas — from deceptive food labeling to financial services.
In addition to featured guests, current chair Jared Lee will introduce the seminar and a former chair, John Yanchunis (2013-2014), will be presenting.
Lesly Carmen Longa, CPLC chair for 2015-2016, headed the planning subcommittee and did an outstanding job assembling the program with the help of Robert Murphy. The full-day seminar will be held on Saturday, June 24.
• Community Outreach — Each year, the CPLC organizes community outreach events. This year, the committee set a record that will be hard to follow. Led by Subcommittee Chair Jennifer D. Newton, the committee participated in seven ask-a-lawyer events, most of which were held in conjunction with National Consumer Protection Week (March 5-11). Events were held at:
• The University of Miami School of Law, Coral Gables;
• Nova Southeastern University, Ft. Lauderdale;
• The School of Success Academy, Jacksonville;
• The Little Haiti Cultural Complex, Miami;
• Orlando Fashion Square Mall, Orlando;
• Seminole Heights Branch Library, Tampa; and
• Mandel Public Library, West Palm Beach.
The events provided free, one-on-one, 10- to 15-minute consultations for consumers on topics, such as real estate and foreclosures; landlord/tenant issues; employment; wills and estates; bankruptcy; collections defense; and consumer rights issues. Aside from Jennifer D. Newton, thanks are due members Delton Chen, Charles Geitner, Katherine Kiziah, Ryan Moore, and Craig Rothburd.
• Legislative Outreach — Before the start of the Florida legislative session, the committee sent a letter to lawmakers letting them know of the committee’s availability to provide reviews and analyses of bills affecting consumers. The committee was asked to review House Bills 347 and 595 affecting certain consumer loans and did so several weeks before the session convened.
Will Armistead, chair of the legislative subcommittee, did excellent work keeping the committee up to date with legislation filed on consumer issues. As always, Vice Chair Alice Vickers continued to be an excellent resource on legislative action on consumer issues.
• Judicial Manual — The committee finalized work on a manual on consumer topics that judges across the state can use. The manual covers: Florida Deceptive and Unfair Trade Practices Act; auto sales and finance; Florida’s Lemon Law; credit card actions; and residential evictions.
This project had been in the works for several years, and under the guidance of Subcommittee Chair Michael Ziegler, crossed the finish line this year. Special thanks go to members Barry Balmuth, Delton Chen, Shaunda Hill, Jared Lee, Patrice Malloy, Craig Rothburd, Mark Schweikert, Alice Vickers, Dennis Wall, and David Weintraub.
It is the committee’s hope that the manual can now be published both online and in print and assist Florida’s judges in cases involving these pivotal consumer issues.
• Consumer Protection Lawyer of the Year — For the seventh year, the committee will honor an attorney for excellence, character, and commitment to the practice of consumer protection law. Laura Boeckman, the 2015 winner, and Robert Murphy, the 2016 winner, co-chaired this subcommittee seeking nominations and proposing a winner.
• New Pamphlet and Pamphlet Updates — When consumers need basic legal information on a variety of topics from landlord-tenant issues to writing a will, they can turn to The Florida Bar’s consumer pamphlets. The committee reviews and updates these pamphlets, which are available on The Florida Bar’s website with some of them in print as well. This year, the committee will have updated 27 pamphlets. Additionally, it is proposing a new one authored by member Valorie Chavin on homeowners’ insurance. If approved by the Board of Governors, that pamphlet will join The Florida Bar’s consumer pamphlet portfolio at www.floridabar.org/consumerinfo. For the 2016-17 year, updates are:
• Adoption in Florida
• Adoption in Florida (Spanish)
• Building a home
• Credit repair fraud (Spanish)
• Do you have a will?
• Florida power of attorney
• Florida’s motor vehicle “Lemon Law”
• General information on consumer protection
• Hiring the right person to help me with my legal problems
• How to avoid being a victim of auto repair and service station gimmicks
• How to find a lawyer in Florida
• Immigration update (Spanish)
• Intellectual property
• Legal and binding contracts
• Mortgage fraud
• Parenting and divorce (Spanish)
• Probate in Florida
• The revocable trust in Florida
• Small claims
• So you want to be a lawyer?
• Divorce in Florida
• A civil case or a criminal case?
• Consumer bankruptcy in Florida
• Handbook for jurors
• Identity theft
• Mass disaster
• Automobile insurance
• Rights and duties of tenants and landlords
Special thanks go to Lisa DiFranza for leading this productive subcommittee, and to Shana Bell, Valorie Chavin, Brett Foster, Sarah Shullman, and Nick Taldone for their assistance in making sure the consumer information provided by The Florida Bar is accurate and up to date.
• Social Media Outreach — Again, the CPLC, The Florida Bar pioneer in the use of social media, continued to use Twitter to communicate with and educate attorneys and the public on consumer law issues. Committee members Jennifer D. Newton and Ryan Moore led the way by posting to the committee’s two accounts. One account updates Florida attorneys on consumer law issues (@FLBarCPLCLawyer), while the other is geared toward consumers (@FLBarConsumer), highlighting the Bar’s consumer pamphlets, outreach events, and useful resources.
I thank Vice Chairs Craig Rothburd and Alice Vickers for their dedication to the committee and their diligent work for both the committee and Florida consumers. Their efforts, along with the efforts of our active members, contributed to a successful year for the Consumer Protection Law Committee.
Jared M. Lee, Chair
Continuing Legal Education
The mission of the Continuing Legal Education (CLE) Committee is to assist members of The Florida Bar in their continuing legal education and to facilitate the production and delivery of quality CLE programs and publications for the benefit of Bar members in coordination with the sections, committees, Bar staff, and others who participate in the CLE process. During fiscal year 2016-2017, the CLE Committee has embraced implementation of the mandatory hours and technology CLE requirement, which became effective January 1.
The CLE Committee has continued to work with the Bar to improve the means of delivery and presentation of CLE materials to Bar members, whether live, via the internet, or by recorded means. As always, CLE Committee members have evaluated numerous presentations throughout the year to provide feedback to improve CLE programs for all members of the Bar.
Among other projects, the CLE Marketing Study Subcommittee (formed during fiscal year 2015-2016) has moved forward by collecting results of a custom survey of Bar members that showed 90-plus percent excellent/good rating for Bar CLE seminars. What stands out is the very high preference for learning about CLE via email and the website. Online video (24/7) is the preferred format and has moved ahead of live presentations. At the recommendation of the subcommittee in February, the CLE Committee will move forward with the communication, marketing, and promotion recommendations received from the outside marketing consultant. The deliverables will be tied in to the new IT structure of the Bar’s website.
Evett Louise Simmons, Chair
Criminal Law Certification
The Criminal Law Certification Committee is responsible for overseeing the process of certifying attorneys as either criminal trial specialists or appellate specialists recognized by The Florida Bar, and for reviewing the applications of currently certified attorneys seeking recertification because their terms are expiring. The certification process includes the following requirements: satisfactory peer review references; passing the certification examination (initial applicants only); substantial involvement in either criminal appellate law or criminal trial law; and a handling of either appellate actions or trials:
• For initial criminal appellate applicants: representation of at least 25 appellate actions.
• For recertification criminal appellate applicants: representation of at least 10 appellate actions.
• For initial criminal trial applicants: at least 25 contested criminal cases, with 20 jury trials, tried to a verdict, 15 which involved a felony charge, 10 as lead counsel, and five that occurred within the five years preceding application.
• For recertification criminal trial applicants: at least five contested criminal cases, with four that were before a jury and three that involved a felony charge.
As chair of the Criminal Law Certification Committee, I am happy to report another successful year of overseeing the certification of Florida criminal lawyers. The committee is comprised of 12 board certified attorneys who work in different areas of the criminal justice system throughout the state. The committee first met in July 2016 to begin drafting the 2017 examination and to review initial and recertification applications. Over the next several months, the committee worked to continue the prior committees’ improvement of the quality of the certification exam to meet the high standards expected by committee members and The Florida Bar.
Both the criminal trial and criminal appellate law exams contain five essay questions and 50 multiple-choice questions addressing procedural and substantive law in both state and federal court. The exam is written to assess criminal lawyer’s fundamental knowledge of the law, analytical reasoning, and skill in applying knowledge to practical situations. On May 12 in Tampa, applicants answered these questions in two three-hour blocks and will be advised of their results by August 1.
At its final meeting, the committee will grade the 2017 examinations. The committee grades the examinations on an anonymous basis, with each examinee identified to committee members only by a number assigned by Florida Bar staff. Those attorneys who meet all requirements for a certified attorney and achieve a passing score on the examination will earn the designation as a criminal appellate law board certified specialist or criminal trial law board certified specialist.
Of the more than 100,000 members of The Florida Bar, 425 are currently board certified in criminal trial law and 50 are board certified in criminal appellate law. Forty-nine attorneys applied to take the 2017 criminal trial law certification exam. Eight of these applicants submitted “abbreviated applications” after either failure or nonattendance at the 2016 exam. Two attorneys applied to take the 2017 criminal appellate law certification exam. One of these applicants submitted an abbreviated application after either failure or nonattendance at the 2016 exam. The committee also reviewed 49 recertification applications this year.
The committee is grateful to the lawyers who participate in the confidential peer review process. Without candid commentary from applicants’ peers, the committee’s ability to properly review applicants’ qualifications would be severely curtailed. The committee emphasizes to Bar members and judicial officers that commentary is confidential and will not be divulged to any applicant.
It has been an honor for me to serve as chair of the committee this year, along with Jessica Travis (vice chair), Elizabeth Bourdon, Judge William Burgess, Joseph Caimano, Judge James Colaw, Karen Kinney, Pamela Koller, Ilana Marcus, Lisa McLean, Robert Norgard, and Michael Ufferman. None of our work could have been accomplished without our staff liaison, Lindsey Blomberg. I thank everyone for all their hard work and great effort.
Luke Newman, Chair
Criminal Procedure Rules
Writing to concur in the recent Fourth Circuit opinion vacating Virginia’s transgender bathroom injunction, Senior Judge Andre Davis eloquently reminds us that even the law promises according to our hopes, but performs according to our fears. Through humiliation, segregation, and banishment, remedying injustice is a burden predictably falling, Judge Davis writes, on the shoulders of the oppressed, who must claim privacy, claim dignity, and compel their enforcement. Such Herculean effort, he continues, are what stem the tides of outdated civilian and governmental constructs and help to push past the “decidedly mixed” reactions of our courts, thus, making it our mutual duty to validate common existence and experience and echo Dr. King’s moral arc of the universe, which, when we choose, bends toward justice.
It is with this vision and in this spirit that the members of the Criminal Procedure Rules Committee volunteer to serve, for the “unrecognized, unrepresented, and unprotected” victim, witness, and accused alike — to fend for our justice system and fend for our profession, which are all the better off for the lot of them.
Our committee is comprised of prosecutors and defenders, public and private, judges, and professors — expert in the practical application of criminal law and who strive, therefore, upon reviewing legislative mandate and judicial, attorney, and the people’s calls to action, to amend and create procedural rules that do justice better, and, when necessary, to harmonize the understandably dissonant chords sung “in the often competitive enterprise of ferreting out crime.”
Among our most important work this past year was to create an ex parte procedure, under Rule 3.111, whereby indigent defendants not represented by the public defender, conflict counsel, or capital collateral counsel are to be accorded the same degree of constitutional, strategic privacy when moving the court for investigative and trial preparatory due process costs.
Of equal importance, our committee also resolved the gaping hole of discovery unfairness revealed in Scipio v. State, 928 So. 2d 1138 (Fla. 2006), to now require that the parties’ continuing duty to disclose under Rule 3.220 applies equally to material changes in oral testimony, not just written or recorded testimony.
In addition, our committee now ensures that under Rule 3.172, both that plea agreements include the specific amount of credit time served to be accorded a defendant and that the defendant be advised that the lack of specification operates to waive the right to such credit.
We revised the committee note to Rule 3.191 regarding prospective juror oaths and seated juror oaths, as recommended by the court in Smart v. State, 170 So. 3d 477 (Fla. 4th DCA 2015).
We conformed Rule 3.213 to legislation modifying the requisite dismissal period for incompetency for certain offenses.
We created forms (new Rule 3.9876) for correcting illegal sentences, incorrect Criminal Punishment Code Worksheets, and erroneous sexual predator designations.
We amended our first appearance rule (3.130) to reference the use of pre-recorded videos informing defendants of their constitutional rights.
We amended Rule 3.220 to allow law enforcement to designate an email address, as well as a physical address for delivery of notices of taking deposition.
As you are reading this, we are working diligently to consider what original documents are to be retained by our clerks; the wisdom of breaking down our complex discovery rule into its individual, component parts; the workability of criminal mediation; and, the crucial matter of whether, under Rule 3.220 or the work product privilege, to compel defense disclosure of nontestifying expert witness discovery, as determined by the court to be required in Kidder v. State, 117 So. 3d 1166 (Fla. 2d DCA 2013), or whether to implement a rule akin to the federal rule of criminal procedure limiting a defendant’s obligation to provide reports or statements of experts to cases where they intend to use such material or call the expert who prepared the same as a witness.
Plainly, the work of this committee this past year has been significant, barrier-breaking, justice-accessing, and intense. Which prompts these thanks that follow:
As all committee chairs come to know, great vice chairs are who keep you from landing in the tall grass, and there are none better than Palm Beach County Chief Assistant State Attorney Brian Fernandes, former law professor, now Administrative Law Judge Christine Guard, and Osceola County Circuit Court Judge Jon B. Morgan, who takes the helm of our committee this summer. I am grateful for your steady hands, creative minds, and generous hearts.
Smart, sensitive, subcommittee chairs are no less vital to great work and great work product, and in truth are the backbone of seeing to it that the sausage-making of justice gets done. My appreciation thus runs wide and deep for Duval County Court Judges Roberto A. Arias and Ronald P. Higbee, Judge Wendy Berger of the Fifth District Court of Appeal, Judge Samantha L. Ward of the 13th Judicial Circuit in Hillsborough County (and a past committee chair), Jacksonville Assistant State Attorney Meredith Charbula (our immediate past chair), Assistant State Attorney Mara Marzano in Naples, and Senior Assistant Attorney General Carol Dittmar in Tampa. I leaned on you, and overloaded you; but you never complained, and you always delivered. If I look any sort of good come spring, it is mostly because you sheltered me in winter.
To our fellow Bar committee and organization liaisons — none more essential than Dennis Kainen, our savvy Board of Governor liaison, and Judge Ward, who braved many a thicket for us: thank you all for letting others know what, why, and how well we do and for keeping us informed and mindful of the justice worlds that surround us.
To our secretary, Jacksonville Assistant State Attorney Sheila Loizos, thank you for ensuring that we always get all of it down, especially the good parts. And to Parliamentarian David Thompson, on Robert’s order, thank you, too.
To Bart Schneider, OSCA general counsel extraordinaire, thanks for embracing the wisdom our committee members have to offer and for helping to facilitate the input we now share with the Florida Supreme Court’s Criminal Court Steering Committee. We are, without doubt, stronger together, and we would not be so were it not for you.
To Judge Kevin Emas, and to Hy Shapiro, H.T. Smith, Bobby Reiff, Hank Coxe, and David Rothman, who paved my way, way back when, to Bar service, thank you for inspiring me to always do better and for your spot-on and generous, indispensable counsel. If my service here has been anything more than okay, it is largely because of you.
And thank you to Heather Telfer, our staff liaison. Heather is equal parts scholar and drill sergeant, grammar junkie and institutional memory. She is a lawyer, our friend, and every bit our colleague to cherish.
And of course, I am grateful to Bar presidents Ray Abadin and Bill Schifino for trusting me with this position and privilege. My motivation remains not to ever let you down.
Great committee service — like all service — operates best as a labor of love. And like all good things, this service, too, must come to an end. I am enormously proud to be part of this body, to serve with such smart and earnest people, and of the important work we will continue to do — a journey Judge Davis aligns, at the close of his opinion, with the N.S. Nye poem, “Famous,” that despite whatever formidable powers may be arrayed against us at every stage of every proceeding, like the pulley and the buttonhole, our fame lies in “never forgetting what we can do.”
My committee members are famous to me for the same reason. Prosecution, defense, from classroom to courtroom, we never forget by day’s end to do more good than harm; that how a society treats its outcasts, the least among it, says perhaps the most about the type of society it is and yearns to become; that “something there is that doesn’t love a wall.”
H. Scott Fingerhut, Chair
Diversity and Inclusion
This year, the Committee on Diversity and Inclusion (CDI) continued to develop and implement various projects and programs to further its mission to increase diversity and inclusion in the Bar so that the Bar will reflect the demographics of the state, to develop opportunities for community involvement, and to make leadership roles within the profession and the Bar accessible to all attorneys.
The CDI administers the Diversity Leadership Grant Program, which provides funding to local and specialty bar associations for conferences, initiatives, and programs that encourage diversity, provide diversity training, and provide opportunity for dialogue about diversity and inclusion issues in Florida. Vice Chair John Schifino led the team in partnership with more than 283 local and specialty bar associations, wherein all Bar funds budgeted for this program year were allocated and used to fund 27 diversity and inclusion programs around the state.
This year, the Get Involved Subcommittee focused on bringing awareness to the process of going through the JNC and gubernatorial appointment process. Vice Chair Darrin Johnson directed this team and in doing so, the subcommittee met with various members of JNC’s across the state, as well as representatives of the governor’s office to gain the perspective and outlook of each. Thereafter, they embarked upon creating a Quick Reference Guide for individuals seeking appointment, which will be placed on CDI’s website. In time for the annual meeting, the subcommittee will deliver a Florida judicial branch fact sheet identifying the gender, national origin, and ethnicity of Florida’s judiciary.
The CDI’s Law School Subcommittee, under Vice Chair Bruce Mount’s leadership, promoted and attended three minority mentoring picnics throughout the state, including Hialeah, Orlando, and Tampa. Additionally, the subcommittee sponsored the inaugural pinning ceremony for the Hatchett Pre-Law Society at Florida A&M University in furtherance of its commitment to creating a sustainable diversity pipeline. The subcommittee is in the process of partnering with the Student Education and Admissions to the Bar Committee to educate law students on the many resources available to help them gain admission to this great profession.
This year, CDI’s new Multicultural Subcommittee, spearheaded by Vice Chair Joseph Camerlengo, recommended that each member of our committee take the implicit bias test to ensure our team has conscious consideration of what our own biases may be and work toward addressing those biases. Additionally, this subcommittee recognized the key position lawyers are in to help, through work and partnership, with areas of social need (as evident through the Orange County Bar Association’s response to the Pulse Orlando shooting), so we passed a resolution dedicated to examining how this work can be replicated across the state by interested groups doing so in advance of continuing incidents. The subcommittee prepared a “Bias-Motivated Incidents Toolkit,” which is a brief and informative resource available for people interested in providing assistance to victims of bias-motivated incidents. The subcommittee further seeks to establish a volunteer lawyer registry, where attorneys familiar in areas like probate, estate planning, employment, and immigration, can sign up to offer assistance to those in need in the face of a bias-motivated incident. Lastly, this subcommittee began comparing the ABA’s new Model Rule of Professional Conduct 8.4, making it professional misconduct to discriminate or harass a fellow lawyer, to Florida’s Rule 8.4, and other antidiscrimination and antiharassment rules implemented by other states in scope and breadth.
The CDI also unanimously voted to support the proposed military spouse admission rule. This rule would allow lawyers licensed in a jurisdiction other than Florida whose spouse is serving in the U.S. armed forces stationed in Florida to become a member of The Florida Bar without having to sit for the Florida Bar Examination. The lawyer must still meet the eligibility requirement, including the passage of the character and fitness examination by the Florida Board of Bar Examiners. The admission would be temporary, lasting only as long as the military spouse is stationed in Florida.
Last year, CDI unanimously recommended adoption of a parental leave continuance rule of procedure to the Board of Governors and Florida Supreme Court. This rule would help ensure attorneys having a baby or adopting a child would be able to obtain a continuance of a hearing or trial that would otherwise prevent them from taking parental leave. This proposed rule was opposed by the Rules of Judicial Administration Committee.
Five of our members were then appointed to the Special Committee on Parental Leave in Court Actions, which was a joint committee between CDI and RJAC. I selected Chasity O’Steen, Miriam Ramos, Andres Oliveros, Katherine Yanes, and Craig Leen as the CDI representatives, who were then appointed by President Bill Schifino. The special committee worked for several months to prepare a report and compromise language that recognized the need for an enforceable rule, provided guidance as to the presumptive length of continuances (three months), and ensured that judicial discretion was preserved to modify or deny a continuance when substantial prejudice to the other side would occur. The proposed rule was ultimately recommended by a vote of 6-4 to the Board of Governors. At the recent BOG meeting, the board heard presentations from Special Committee Chair Rob Eschenfelder and CDI representative Craig Leen regarding the proposed rule on first reading. The board is taking written comments and then vote on the proposal at the May meeting. If the BOG recommends the proposed rule, it would then be considered for adoption by the Florida Supreme Court. Special thanks to board member Deborah Baker-Egozi for her strong advocacy for the rule and to President Schifino for formulating this special committee.
Finally, the CDI is preparing for our Path to Inclusion Summit. The steering committee has been hard at work and the structure of the event has been begun the work of planning this event, which will be held in the winter in central Florida. Stay tuned for additional information regarding this exciting event.
The CDI is a uniquely inclusive committee. We had 123 members serving this year, including members of the judiciary, representatives from law schools and universities, members of other Bar committees, and representatives from many statewide, local, and specialty bar associations. We have no dues requirement and welcome the participation of all individuals and groups that support diversity within the legal profession.
We thank President Schifino for his continued support and for appointing CDI’s BOG liaison, Paul SanGiovanni, and CDI member Fentrice Driskell to the Special Committee on Gender Bias. We also thank the section chairs for appointing liaisons this year from their sections to serve on CDI to ensure we are collaborating across the sections and committees in our diversity efforts.
Many CDI members, including (but by no stretch limited to) Susan Healy, Jarred Reiling, Nikki Lewis Simon, D. Porpoise Evans, Jessica Hew, and Amanda Jesteadt, have been responsible for the development and implementation of the CDI projects and programs this year. On behalf of the entire CDI, I thank the Bar leadership, Arnell Bryant-Willis, the Bar diversity initiatives manager, Briana Wilson, the Bar diversity initiatives program coordinator, and other Bar staff for their dedication and support.
Brittany J. Maxey, Chair
The Education Law Committee is a substantive law committee of The Florida Bar and currently has over 80 members. The scope and function of the Education Law Committee is to bring together education law practitioners who work across the full scope of education law, including attorneys who work in-house for K-12 or post-secondary public and private educational institutions, attorneys who work for private law firms that represent educational entities, and attorneys who address educational issues on behalf of other governmental entities, or students and/or their parents and guardians.
As a group, we wear many hats, and routinely address a myriad of substantive areas of the law, including construction and real estate, constitutional law, human relations, procurement, collective bargaining, the APA, the ADA and personal injury — all within the context of educational settings. Our educational institution clients are challenged to comply with the latest pronouncements from their accreditors, the legislature, the BOG, DOE, DOJ, and others — an alphabet soup of oversight affects us every day, and the committee seeks to keep its members abreast of the latest developments.
During my tenure, the committee met via webinar on October 19, 2016, and in a live setting on January 27 during the Bar’s midyear in Orlando. We will meet again at the annual convention on June 23 in Boca Raton. Central to our philosophy as education lawyers is the inclusion of significant relevant CLE as an integral part of each meeting of the committee. As this year’s chair, I have continued to advance the goal of making the meetings and the CLE available to the entire membership using technology.
CLE offerings so far this year included presentations related to the emerging topic of transgender; the new law on the management of foreign nongovernmental organization activities in mainland China; the law relating to website accessibility; and the implications of marijuana use in school and on campus, with a specific focus on the issues affecting the employer.
In 2016, the committee updated and presented a new education law certification review through the good efforts of the IT folks at Buchanan Ingersoll and Rooney. The webinar includes 14 presenters with narrated PowerPoint videos, helpful outlines, and supplemental materials addressing a wide range of issues relating to our practice as education lawyers. The University of West Florida graciously agreed to allow the committee to post these materials on the website of its office of general counsel, and continues to make them available for review by the committee and the public as needed. CLE credits are available for those wishing to review the materials through the remainder of the fiscal year.
An exciting development this year was the formation of a Publications Subcommittee to support the Education Law Journal. Longtime committee members and supporters Paul Carland, Mike Dyer, Jason Fudge, Bob Harris, Ned Julian, Past Chair Mark Lupe, and Steve Schroeder worked together to produce a new edition of the Education Law Journal, which hit the street in December 2016. The Publications Subcommittee welcomes articles on education law topics and encourages submission of articles for the journal.
The law firm, Buchanan Ingersoll & Rooney, Bar liaison Tom Miller, Vice Chair Rob Batsel, and Secretary Joy Smith-McCormick, deserve special recognition for their contributions this year.
On a sad note, Ed Marko, general counsel to the Broward School Board and long-time committee member, passed away in February of this year. Ed became a member of the committee at its inception and worked hard to make it a success. His knowledge was encyclopedic, and his collegiality was reliable and contagious. He will be greatly missed.
I very much appreciated the opportunity to serve as chair of the Education Law Committee this year, and I thank each of the committee members for your support and efforts. You are an inspiration.
Patricia D. Lott, Chair
Education Law Certification
The Education Law Certification Committee is committed to promoting certification among the attorneys who practice education law. This is the seventh year of education law certification. After six years, there are 50 board certified attorneys in this area; in addition, two took the 2017 examination. The committee has made progress in furthering this very significant certification area in Florida — one that is seen nationally as an important pioneering certification. Board certification in education law is unique to Florida and a model for other state bar associations considering certification in education law.
The committee has held regular meetings through the year. It has concentrated on improving the examination and creating a comprehensive and accessible question/answer bank for the use of future committee members. The committee promoted education law certification to those who practice education law, including attorneys for school districts, state colleges, state universities, and private schools and colleges, as well as attorneys who advocate for students and their families. The committee also reviewed the first class of recertification applications for the area. The committee is in the process of revising the “substantial experience” section of the application for board certification to align the practice options with current practices in education law without diluting the value of certification. The goal of the committee is to attract an increasing number of attorneys, which are employed as in-house counsel by school boards, state colleges, and universities, as well as other practitioners of education law, including outside counsel representing state colleges and universities, district school boards, charter schools, and the like to seek board certification.
The members of the 2016-2017 Education Law Certification Committee are Ned Julian, Jr., chair; Edward J. Marko, vice chair; Marylin Batista; Youndy Cook; David Delaney; Larry Glick; Sarah Koren; Keith Martin; and Heather Wallace. The chair recognizes and appreciates the effort of committee members in spending considerable effort identifying and recommending potential new members. The chair thanks the members of the committee for their hard work this year; it has been an incredibly rewarding experience to serve as chair of the committee. The committee acknowledges the efforts of the Education Law Committee, which has promoted the certification area and once again provided an outstanding certification examination review course.
The committee was saddened by the death of Vice Chair Edward Marko in February. He was highly regarded by his colleagues and was an active member of the Florida School Board Attorneys Association and the Education Law Committee. Marko served as general counsel to the Broward County School Board for 42 years, was a founding member of the Florida School Board Attorneys Association, and served several terms as its president. In addition, he served on the board of directors of the Education Law Association, a national education law organization serving both lawyers and educators. Marko was recognized by his colleagues as a preeminent expert in education law. His wit and wisdom will be missed.
Finally, the committee thanks The Florida Bar for its assistance throughout the year with special thanks to our certification specialist, Charlotte Bell.
Ned N. Julian, Jr., Chair
Elder Law Certification
The Elder Law Certification Committee is responsible for administering the process of certifying attorneys as elder law specialists recognized by The Florida Bar. The certification committee had four meetings throughout the past year to process new applications for eligibility to sit for the certification exam, review recertifications, and prepare the 2017 board certification exam. Currently, there are 106 board certified elder law attorneys in Florida. The committee reviewed 21 recertification applications. This past year, 13 attorneys applied to sit for the exam on March 10. It has been a successful year for the certification committee.
This year’s Elder Law Certification Committee was chaired by Holly M. O’Neill, with Victoria Elizabeth Heuler as vice chair, and consisted of members Edwin M. Boyer, Sara Caldwell, John Sanders Clardy III, Alex Cuello, Amy J. Fanzlaw, Travis Dean Finchum, and Shannon McKenzie Miller. I thank all committee members for their dedication and hard work to make this past year a success. I also specially thank our certification specialist, Laurinda Babers, whose hard work and organization kept us on task and made our committee meetings run smoothly this past year.
Holly M O’Neill, Chair
Eminent Domain Committee
The principal functions of the Eminent Domain Committee include monitoring developments in the practice areas of eminent domain and property rights, keeping the members of the Bar informed of significant developments in those areas, and considering related issues identified by the committee itself or the Bar president and the Board of Governors. The committee is comprised of experienced eminent domain practitioners throughout the state who routinely represent governmental agencies and nongovernmental entities with the power of eminent domain, as well as owners whose property rights are affected by such condemning authorities. The members of the committee collectively offer a depth and breadth of experience that is an important resource to the Bar and the profession.
The undersigned chair on behalf of the committee gratefully acknowledges the tremendous time, energy, and resources devoted to the work of the committee by the following: Lorena Hart Ludovici, D. Tobyn DeYoung, Heather A. Patchen, and Kenneth C. Pope (committee vice chairs); Carlos Kelly and J. Stanley Chapman (newsletter editors); and Charles “Chase” Early (Bar staff liaison).
The chair also expresses the committee’s deep appreciation for the generous sponsorship of our meetings by the following: Calhoun, Collister & Parham, Inc., real estate appraisers and consultants; Chastain-Skillman, Inc., engineering and environmental consultants; Durrance & Associates, real estate appraisers and market analysts; and Mesimer and Associates, Inc., consulting engineers and planners.
The chair also thanks the committee members, too numerous to mention, who regularly attend our meetings or otherwise contribute to the work of the committee.
The committee’s June 17, 2016, meeting featured these three presentations: “A Tuscan Ridge/Doerr Panel Discussion: What Happened and Where Do We Go from Here?” presented by committee members Toby DeYoung, Joe Fixel, Craig Willis, Jim Spalla, and Richard Milian; “Federal Eminent Domain Practice: An Overview & Focus on Natural Gas Takings,” presented by committee member Blake Gaylord; and “Environmental Resource Permitting and Regulatory Changes: How Has it All Worked Out?” presented by Bruce H. McArthur, P.E.
The committee’s October 21, 2016, meeting featured these three presentations: “Wetlands Can Make a Big Difference — A Litigation Case Study,” presented by Isaac Rhodes Robinson, CEP, PWS; “Oops! Common Errors in the Appraisal Process,” presented by Barry Diskin, Ph.D., MAI, CRE, AI-GRS; and “The Relationship Between Credibility and Persuasion — A Few Observations on Matters of Ethics and Professionalism,” presented by Judge William A. Van Nortwick, Jr., First District Court of Appeal (Ret.).
The committee’s January 27 meeting featured these presentations: “Depositions — Taking & Defending; Dispositive Motions & Trial,” presented by committee member Jim Helinger and the undersigned; “The Top Property Rights Decisions Every Eminent Domain Lawyer Should Know,” presented by committee member Bill Moore; and “Cross Examination as Story Telling,” presented by David M. Wells.
Planning is underway for the June 23 meeting, which is expected to include a presentation by jury consultant, Melissa Pigott, Ph.D., “Common Mistakes in Voir Dire,” and a presentation by committee member, Toby DeYoung, on eminent domain compensation arising from changes to ingress and egress.
The committee is pleased to announce the publication in early 2017 of the 10th edition of Florida Eminent Domain Practice and Procedure, an important Bar publication whose authors are largely comprised of members of the committee. In this regard, the committee expresses its appreciation for the efforts of the authors and Josine Blackwell, legal editor, The Florida Bar.
The leadership of the committee is in capable hands in the upcoming year with Lorena Ludovici ascending to the position of chair, and Toby DeYoung, Heather Patchen, and Ken Pope being reappointed as vice chairs.
Joel Settembrini, Jr., Chair
Family Law Rules
It has been a very productive and exciting year for the Family Law Rules Committee. The committee undergoes a rigorous process when receiving proposals for new rules or amendments to existing rules. This process includes many long hours of the committee members who volunteer their time to review, revise, and craft rules for clear and concise outcomes for family law clients and practitioners.
This Bar year was the capstone for a multiyear project to revise the family rules and forms to make them separate and independent from the civil rules. After years of work and drafting, these “stand alone” rules were submitted to the Supreme Court for approval in June 2016. In case number SC16-978, the Florida Supreme Court recently issued an opinion and approved substantial amendments to the Family Law Rules set as proposed by the committee with only a few modifications, creating a “stand alone” set of rules. These amendments make the rules helpful and less confusing for practitioners and pro se litigants and eliminates discrepancies of procedure between civil and family law court practice. The “stand alone” rules set required countless hours of volunteer work and dedication, and marks a tremendous effort by the committee to improve and simplify family law court practice for both attorneys and self-represented litigants.
In addition, the committee worked extensively on rules of procedure for collaborative law practice. The Collaborative Law Process Act (CLPA) was passed by the legislature on March 4, 2016, and signed into law by Governor Rick Scott on March 24, 2016. The CLPA creates a framework for the practice of collaborative law in Florida, and will take effect after a rule of procedure and rule of professional conduct are adopted by the Florida Supreme Court. As a result, the committee diligently worked on new rules of procedure for collaborative law. After vetting the rules within the committee, publishing the rules with The Florida Bar News, inviting comments on the proposed rules, and responding to comments, the committee and The Florida Bar filed a joint petition with the Florida Supreme Court that proposed amendments to the ethics rules as well as new rules for collaborative law in the family law rule of procedure. The committee then proceeded to oral arguments in front of the Supreme Court. Robert Merlin and I appeared on behalf of the Family Law Rules Committee to advocate that the court adopt the rules of procedure for family collaborative law. The committee is now eagerly awaiting the opinion of the court. If adopted by the court, the collaborative rules of procedure will standardize the practice of collaborative divorce statewide.
On top of those two innovative and vast projects, the Family Law Committee also filed its three-year cycle report. The three-year cycle report included amendments to Rule 12.130, Documents Supporting Action or Defense; Rule 12.200, Case Management and Pretrial Conferences; Rule 12.400, Confidentiality of Records and Proceedings; Rule 12.407, Testimony and Attendance of Minor Child; Rule 12.490, General Magistrates; and Form 12.902(f)(3); and Marital Settlement Agreement for Simplified Dissolution of Marriage.
The committee also has over 10 active subcommittees working on various matters, including improving unified family rules, the child support guidelines worksheet, and form instructions. The committee continues its work regarding the rights of grandparents in family court and examining pro se litigants access to courts through forms on the ePortal.
The Family Law Rules Committee has accomplished a tremendous amount of work during this past year and finalized several major achievements. The successes of the committee would not have been possible without the hard work and professionalism of the entire committee. I especially recognize Cole Jeffries, immediate past chair, who has worked on each of the committee’s major projects and has been an irreplaceable source of guidance for our members. I also thank committee vice chairs Robert Merlin, Jack Moring, and Frederick Pollack for their incredible contributions of time, experience, and leadership.
Finally, I am grateful for the dedication of our Florida Bar attorney liaisons. I appreciate the work and efforts of each of the attorney liaisons who served with us throughout the year. We were incredibly fortunate to work with Krys Godwin as our interim attorney liaison. In addition to her great skill and substantive expertise, Krys brought grace and good humor to each new project, no matter the hour or how heavy the load. We are equally delighted with our new attorney liaison, Mikalla Davis, who has already proven herself an indispensable asset to us and will no doubt be an essential part of our work going forward.
This was an extraordinary year for the Family Law Rules Committee. Several projects reached fruition this year due to many years of hard work and dedication by our members. I am grateful for the opportunity to serve as chair and thank the leadership of The Florida Bar for the opportunity to do so.
Laurel Moore Lee, Chair
Federal Court Practice
The Federal Court Practice Committee serves as The Florida Bar’s liaison to federal courts, federal bar organizations, the 11th Circuit Judicial Conference, and federal practitioners throughout Florida.
The committee’s signature event, the Federal Judicial Roundtable, will take place at The Florida Bar Annual Convention on June 22. Given the Bar’s focus on technology CLEs, this year’s roundtable will be moderated by Professor Jan Jacobowitz from the University of Miami, and focus on technology and social media related issues in federal courts. The roundtable is a popular program providing an opportunity for the federal bench and Bar to interact in an informal setting and discuss many issues of interest to federal practitioners. The roundtable has historically drawn dozens of federal judges from around the state in addition to numerous lawyers, law professors, and law students. This year’s roundtable is chaired by Lauren Stricker, of Shutts & Bowen, and vice chairs Matthew Hall and Amanda Levy-Reis.
To reach more practitioners, the committee started this year to expand its programming past the roundtable. On November 9, 2016, the committee hosted a seminar called “Tips From the Bench,” at the offices of Akerman LLP in Miami. The panel included Judges Robert Scola, Jr., and Alicia Otazo-Reyes from the southern district, and Matthew Menchel of Kobre & Kim, and former chief of the criminal division in the U.S. Attorney’s Office. Melissa Damian Visconti of Damian & Valori LLP moderated the panel.
At the committee’s meeting on January 26 during The Florida Bar’s winter meeting in Orlando, we hosted an open CLE discussing how the 2015 amendments to the Federal Rules of Civil Procedure have affected discovery and federal practice. The distinguished CLE panel was comprised of Judges Amanda Arnold Sansone, Gary R. Jones, Mac R. McCoy, and Julie S. Sneed.
As a gateway to the committee, its projects, and federal news, the committee has started an active social medial presence. It maintains active LinkedIn and Twitter accounts, and it uses these regularly to disseminate pertinent information about law and federal practice to practitioners throughout the state. The committee continues to maintain the Federal Corner subpage of The Florida Bar’s website, which also serves as an easy and cost-effective way to communicate with all members of The Florida Bar. The webpage contains rule amendments, proposed changes affecting federal courts, announcements, and other news. A special thanks to Andrew Doyle, of the U.S. Department of Justice, and James Young of Morgan & Morgan for keeping our sites up to date and quickly posting new content.
The committee maintains the Guide to Judicial Practices in Florida’s Federal Courts on the Bar’s website. Many of Florida’s federal circuit, district, magistrate, and bankruptcy judges participate in the guide by responding to surveys about various subjects and practice areas. The guide serves as an invaluable resource to practitioners in and out of Florida appearing before the judges. Thanks to Brett Barfield and Lawrence Goodman who continue to work with The Florida Bar’s staff to update the guide.
Finally, to ensure that this committee continues to fulfill its mission and best serve those interested in federal practice in a rapidly evolving legal landscape, a Long Range Planning Subcommittee has been established to evaluate our committee’s current work and set long-range goals.
The committee gives a special thanks and recognition to our Bar liaison, Lani Fraser. She has devoted countless hours to all aspects of the committee’s work, and we certainly would not have accomplished our ambitious agenda for the year without her devotion. Thank you, Lani!
Brian R. Harris, Chair
Florida Bar Journal and News Editorial Board
The Florida Bar Journal serves the legal community by providing in-depth articles relevant to the practice of law in Florida, while the Florida Bar News keeps members of the Bar updated on important news and events. The Florida Bar currently has over 100,000 members, and members have access to both the Journal and News in print and online at The Florida Bar website.
The Editorial Board Committee works with staff editors to ensure a high-quality, scholarly publication. Lawyers of The Florida Bar submit articles to be considered for publication in the Journal, and it is the Editorial Board’s job to review, edit, and provide recommendations as to whether each article should be published. Over the past year, the Journal featured articles on a variety of topics, including cybersecurity, mortgage foreclosure actions, strict liability for product defects, criminal sentencing guidelines, fraudulent transfers in bankruptcy cases, electronic discovery, anti-SLAPP legislation, immigration, and a profile of retiring Florida Supreme Court Justice James E.C. Perry. The Journal also includes columns each month for sections of the Bar that wish to submit articles on their subject matter. The Editorial Board’s Writing Contest Selection Committee chose Leonard W. Klingen as the winner of the 2016 Excellence in Writing Award for his article, “Our Due Process Debt to Magna Carta,” published in the Journal ’s February 2016 edition.
Past articles may be found online at www.floridabar.org, and we continue to welcome future submissions by aspiring authors.
Finally, to Cheryle M. Dodd, editor: The Editorial Board thanks you for an amazing 43 years of service and to congratulate you on your retirement. We wish you much joy as you begin this next chapter of life. Please remember us fondly as you are relaxing on your front porch, drinking iced tea, and reading the Journal !
K. Denise Haire, Chair
Florida Probate Rules
The Florida Probate Rules Committee had a productive 2016-2017 Bar year, during which the committee worked on updates to conform its rules to changes in the Florida Probate Code and Florida Guardianship Code; proposed rule revisions to be submitted with the next three-year cycle report due in 2019; participated in joint projects initiated by the Florida Supreme Court; worked with other rules committees regarding proposals affecting various areas of practice (such as the fiduciary lawyer-client privilege issue, which was a joint project with the Florida Code and Rules of Evidence Committee); and considered amendments to the procedural rules (in furtherance of the movement to consolidate rules common to many different practice areas) within the Rules of Judicial Administration. The committee’s three-year cycle report, which was filed in 2016, was also approved by the Florida Supreme Court.
The committee passed numerous rule revisions during the past Bar year, which will be included in the committee’s next three-year cycle report. The committee approved the following revisions to the Florida Probate Rules: 1) updated Florida Probate Rule 5.240 relating to the notice of administration to track the language of F.S. §733.212, and address certain inconsistencies between the statute and the rule; 2) revised Florida Probate Rule 5.320 regarding the oath of personal representative to specifically set forth the requirements to serve as a personal representative in Florida; 3) revised Florida Probate Rule 5.040 to clarify that formal notice can be served via first-class mail when only in rem or quasi in rem relief is sought; 4) revised Florida Probate Rule 5.636 to include language confirming that a guardian ad litem shall be appointed for a minor who is to receive a proposed settlement which “equals or exceeds” $50,000; and 5) revised various Probate Rules to change references to “attorney-in-fact” to “agent” in order to reflect the updated nomenclature used in the Florida Power of Attorney Act (amended Ch. 709).
The committee is currently reviewing various issues relating to service in the probate context, including conflicts between Florida Probate Rule 5.041 and Florida Rule of Judicial Administration 2.516. Florida Probate Rule 5.490, which addresses the form and manner of presenting creditor claims in probate, is also being reviewed and discussed by the committee. In particular, the committee is studying the method used by the clerks of court for service of claims. The committee, in conjunction with the Real Property, Probate and Trust Law (RPPTL) Section of The Florida Bar, is also discussing whether a copy of a trust instrument should be required to be served with the petition for administration in a probate proceeding.
As new legislation is passed, the Florida Probate Rules Committee will continue to review and analyze the legislation to determine whether corresponding or related amendments to the probate rules are necessary and, if so, whether such amendments should be proposed on a fast-track basis or as part of the committee’s next three-year cycle report. The committee continues to work closely with the RPPTL Section in order to revise and update the rules to correspond with legislation promulgated by the RPPTL Section.
Meeting schedules and agenda for the committee are posted on the Florida Probate Rules Committee website, /cmdocs/cm230.nsf/WDOCs. The Florida Bar’s liaison to the Probate Rules Committee, Heather Telfer, keeps this information easily available and accessible to committee members and others who have an interest in the committee’s work and current activities.
We urge practitioners to monitor The Florida Bar News for the publication of proposed rule changes, as well as the Florida Supreme Court’s web page, which lists the pending rules cases. The Florida Probate Rules Committee also welcomes comments to the published proposals and pending projects, as well as suggestions for rule changes based upon procedural problems encountered by courts and practitioners.
It has been a privilege and honor to serve as co-chairs of the Florida Probate Rules Committee this year. We thank all of the Probate Rules Committee members, The Florida Bar staff, and the members of the other rules committees for your contributions during this Bar year. Special thanks to our co-vice chairs, Jonathan Galler and Sean Lebowitz, and our Florida Bar liaison, Heather Telfer, for all of their hard work and assistance this year.
M. Travis Hayes & Jon Scuderi, Co-Chairs
Florida Registered Paralegal
The Florida Registered Paralegal Standing Committee reports another successful year since its inception in 2008. The committee’s primary purpose is to assist in the implementation of the Florida Registered Paralegal program, which determines whether a paralegal has met the education, training, certification, and work experience required for registration as set forth in Ch. 20 of the Rules Regulating The Florida Bar. The duties of the committee include proposing rule amendments to Ch. 20 and setting policy for the program.
The committee has had an exciting and productive year. There are currently 4,966 FRPs. The committee always looks for ways to improve the existing program. This year, the committee has focused its efforts to increase communication to FRPs regarding membership benefits that are currently offered by The Florida Bar. The committee voted to issue ID cards to all FRPs annually upon the renewal of their registration. The committee believes this would allow FRPs the ability to take full advantage of membership benefits as they would have evidence of bar affiliation. Additionally, the committee proposed changes to several sections of Ch. 20.
I have served on this committee for five years and as chair for four years. As a member of the Bar, I am committed to the outreach and growth of this program. This year would not have been a success without the time, dedication, and hard work of committee members, Vice Chair Lori Spangler, Jami Coleman, Patricia De Ramus, Cary High, Stephen Sanchez, Wendy Toscano, and Bar staff, Shannon Fleming, Jackie Reshard, and Melanie Woodall, who have worked very hard this year. I look forward to next year being even more productive.
Thomas Jerla, Chair
Grievance Mediation and Fee Arbitration
The focus of the Grievance Mediation and Fee Arbitration Committee continued to be on the recruitment of attorneys and nonattorney public members to serve at various hearings relating to fee disputes. Some of the complaints continued to come from the ACAP program and some directly from attorneys and their former clients. The procedural rules amendment package passed overwhelmingly by our committee in fall 2015 was unanimously approved with some minor amendments by the Disciplinary Procedure Committee on January 19. Some additional substantive and stylistic changes were made to our original proposals, including changing the retention period from one to two years. A notice was published in The Florida Bar News on March 1, indicating that the Board of Governors would conduct its first reading of the proposals now approved by the Disciplinary Procedure Committee on March 24.
In January, a vote was taken if we should continue to conduct our committee via e-conference and telephone conference or change to live quarterly meetings, or a combination of those methods. All but one member abstained in the vote and the committee overwhelmingly decided to continue to use the current method of communicating via email, e-conference, and if absolutely necessary via telephonic meetings. In February, a proposal was placed for committee vote if the committee wished to have a separate email Listserv to communicate on matters not before the committee, but for formulation of viewpoints. The committee voted overwhelmingly to create such a Listserv.
A subcommittee was formed with two members to formulate guidelines on member and committee leadership conduct. This would be one of the first of its kind to be formulated, and we hope that it could be used as a model for all Bar committees at large. Those proposals are still pending review. There was a call for volunteers to set up another subcommittee to determine various substantive and procedural issues that relate to what the committee’s goals are and if specialized panels should be formulated for some arbitration proceedings. Sadly we lost one of our most senior members, public member, Pasquale Mercurio, since he passed away at age 84 in mid-March. He was one of the members who always participated in committee matters despite physical hardships. He will be missed.
Overall, the committee continued to operate as required by the Bar Standing Committee rules. I was delighted to be part of the committee and spearhead its various tasks and goals.
Roshani M. Gunewardene, Chair
Health Law Certification
The Health Law Certification Committee oversees board certification and recertification for attorneys specializing in health care law on behalf of The Florida Bar. The Bar began certifying attorneys in health care law in 1995, and focus in this area of practice has grown such that there are now 128 board certified attorneys in health care law within the state. Those who are board certified in health care law lend their expertise to health systems, pharmacies, clinical laboratories, physician group practices, and a host of other health care industry stakeholders, in navigating one of the most complex and dynamic sectors of American commerce. Board certified health care lawyers are at the table in sophisticated health care transactions, defend clients in fraud and abuse investigations, take the lead in some of the most watched health care litigation nationwide, and provide legal stewardship as in-house counsel.
The Health Law Certification Committee reviews the applications for those lawyers seeking initial certification, as well as for certified lawyers seeking recertification every five years. To initially qualify for Health Law Certification, lawyers must have been a member of The Florida Bar for five years, be substantially involved in health care law (with at least 40 percent of their practice devoted to the area), complete 60 hours of advanced continuing legal education in health law, pass a rigorous peer review process, and pass a certification examination. The certification examination currently consists of 56 multiple-choice questions and four essays covering areas, such as fraud and abuse, provider regulation, institutional operations, bioethics, patient care, clinical integration, and reimbursement.
In 2016, the Health Law Certification Committee welcomed three attorneys to the ranks of those board certified in health care law within the state. This year, the Health Law Certification Committee has identified 21 initial applicants who are eligible to sit for the certification examination, to be administered in May in Tampa. As of the publication of this report, exam results are still pending. The Health Law Certification Committee also reviewed and renewed 21 recertification applications this year.
The Health Law Certification Committee has met numerous times both in person and by teleconference since June 2016 to review initial and recertification applications, and to draft the 2017 certification examination.
The hardworking and dedicated members of the Health Law Certification Committee include Vice Chair Erin Aebel, Radha V. Bachman, William B. Eck, Carol A. Kalish, Michael P. Levinson, Steven Resnick, Adam J. Rogers, and Andrij B. Susla. Thank you for your effort, diligence, professionalism, and commitment to upholding the high standards of this committee. The committee also thanks our previous Florida Bar staff liaison, Charlotte Bell, as we welcome our new staff liaison, Jason Rawls. Our work on the committee could not have proceeded as smoothly without their dedication and attention to detail.
Charmaine Chiu, Chair
Immigration and Nationality Law Certification
As chair of the Florida Bar Immigration and Nationality Law Certification Committee, I thank the work of our committee leadership and members. The 2016-2017 committee includes Vice Chair Kari Fonte, Shahzad Ahmed, Elizabeth Blandon, Gina Polo, Jennifer Roeper, Alan Seagrave, and Francisco “Frank” Symphorien-Saavedra. We were guided and assisted in our work by the following staff of The Florida Bar: Rebecca Frimmel, Lindsey Blomberg, and Allison Armour. Even though this is Allison’s first year with our committee, she has done an outstanding job and helped each of the members meet their assignment objectives.
We also recognize the many board certified attorneys who acted as pretesters by giving their time to review the questions that the committee prepared for use in the 2017 examination. The pretesting that is done with the multiple choice and essay questions assists the committee greatly by providing objective review of proposed questions. The feedback that is received is invaluable and I would encourage each board certified attorney to participate as a pretester if a request is received.
During 2016-17, nine attorneys applied for board certification and nine were selected to sit for the examination. Grading is scheduled for April, and the results will be announced by the Bar no later than June 1.
As of the publication of this report, 70 attorneys throughout Florida (and D.C.) are board certified in immigration and nationality law. Any attorney who has substantial involvement in the area of immigration and nationality law should consider applying for board certification. The ability to set yourself apart as a practitioner who is recognized by your peers as an expert in this area immediately establishes you as among the best of the best.
It has been my honor to work as a member during the five years that I have been assigned to the committee. My year as chair has been challenging, rewarding, and well worth the investment of time and resources. Committee participation provides a means of interacting with other professionals working at the highest level within our field of specialization. Each member is provided an opportunity to learn from each other and in turn the committee strives to use its assignment to assist eligible candidates as they move through the process of earning board certification. Our goal is to maintain the high standards set in this area since its inception in 1995, and I cannot thank the committee enough for helping make this year a success.
Alex Solomiany, Chair
Intellectual Property Law Certification
Intellectual property law comprises the areas of patent prosecution, patent infringement litigation, trademark law, and copyright law. Board certified attorneys may practice in only one or a combination of these areas. A total of 136 attorneys now are board certified in intellectual property.
The committee has worked diligently to prepare for the 2017 exam, which was administered on May 11 in Tampa. Nine applications were received for this year’s exam. Applicants who are registered patent agents and/or attorneys with the USPTO, or are currently certified in either business litigation or civil trial, may waive a portion of the examination.
This year, lawyers who became board certified in intellectual property law in 2012 need to apply for recertification. The is the second recertification for the original certification class and the first recertification for the 2012 class. A total of 77 certifications will expire. The recertification application is online at www.floridabar.org/certification. Recertification requirements can be found in Rule 6-26.4, Rules Regulating The Florida Bar, and must be met by July 31. Questions regarding certification or recertification should be directed to certification specialist, Bekki Balko, (850) 561-5777 or
This year’s Intellectual Property Law Certification Committee was chaired by Jerold Schneider, with Heather Vargas serving as vice chair, and consisted of members John Fulton, Brian Gilchrist, Francisco Ferreiro, Julee Milham, Ury Fischer, Stefan Stein, and Dineen Wasylik.
Jerold Schneider, Chair
Judicial Administration and Evaluation Committee
The 2016-17 term of the Judicial Administration and Evaluation Committee (JAEC) was important and productive. From the onset, the committee agreed that the current JAEC committee mandate needed to be updated and revised to reflect the changing priorities and needs of the Bar, especially considering the scrutiny that the 2018 Constitution Revision Commission will bring to the judicial branch and to the legal profession.
Florida lawyers also need to be mindful of actions of the legislature concerning the judicial branch — including proposals to weaken the powers of the judicial branch through a legislative override or limit the terms of Florida Supreme Court justices and district courts of appeal judges to 12 years. The headwinds that the judicial branch (and by implication members of The Florida Bar and their clients) face cannot be understated nor underestimated.
This is a difficult time not only for the judiciary but also for that crucial underpinning of our representative democracy — the rule of law. However, the JAEC is committed to understanding and confronting these challenges.
The committee’s newly proposed mandate will allow the lawyers who work within the judicial branch of government, representing members of the public in their everyday legal affairs, to monitor and evaluate judicial performance, and, when appropriate, make suggestions for the improvement of the judiciary. This is far preferable to leaving this task to outside groups whose goals might not align with maintaining a fair and impartial judiciary.
If our system of justice is to maintain its world-class status, we must embrace the basic philosophies that gave rise to our country’s democracy. Underpinning it all is preserving a strong and independent judiciary that is well-suited and fully capable of meting out fair and impartial justice to all who come before it. The Bar’s JAEC Committee remains fully committed to these important principles.
With that as background, the committee forged ahead in 2016-2017 with regular projects in support of strengthening the judiciary and educating the public. Some — such as the merit retention poll and voluntary self-disclosure statements — met with great success. Sadly, the judicial feedback program continued to struggle.
• Florida Bar 2016 Judicial Elections Focus — In 2016, the Judicial Administration and Evaluation Committee was part of a multifaceted program of The Florida Bar to educate Florida voters about judicial elections. That outreach included distribution of nearly 155,000 copies of the Guide for Florida Voters, as well as a webpage on the Bar website about merit retention elections and candidates, “ The Vote’s in Your Court. ”
The JAEC was responsible for overseeing two crucial projects for educating voters — The Florida Bar’s merit retention poll and judicial voluntary self-disclosure statements.
As it has done since 1978, when Florida adopted the merit retention system for appeals court judges and Supreme Court justices, The Florida Bar conducted a merit retention poll, asking in-state lawyers to rate justices and judges who were up for retention and of whom they had direct knowledge. The justices and judges up for retention appeared on the November 8 general ballot.
Poll results were released September 13, through a statewide news release, social media, and an article in The Florida Bar News. Ballots submitted by the 5,967 lawyers who participated showed strong support for retaining the three state Supreme Court justices and 28 appellate court judges up for retention, with recommendations for retention ranging from 79 percent to 92 percent.
Election Services Co., of New York, conducted the poll of more than 70,000 lawyers. In July, ballots were mailed to all in-state Florida Bar members in good standing. The ballot asked lawyers with direct knowledge of the performance of the judges and justices whether those jurists should be retained in office. Lawyers were asked to consider eight attributes in making their decisions: quality and clarity of judicial opinions; knowledge of the law; integrity; judicial temperament; impartiality; freedom from bias/prejudice; demeanor; and courtesy. Ballots could be returned by mail or submitted online; both processes preserved the anonymity of the voters.
• Letting Judges Make a Statement — Judges are not allowed to campaign for office as other officeholders do. They are constrained by what they can say, and they are not allowed to discuss subjects that may come before them on the bench. They run in nonpartisan races without the support of political parties to further ensure their objectivity on the bench.
The goal of the Voluntary Self-Disclosure Statement program overseen by the JAEC is to assist the public in making educated decisions when voting for judicial candidates. To that end, judicial candidates were invited in the spring of 2016 to submit 10-page statements with information about their backgrounds as well as personal statements.
Almost 65 percent of candidates running in 2016 elections responded: 47 of the 68 circuit court candidates and 56 of 91 county court candidates. Submitted statements were posted on the Bar’s website at www.floridabar.org/judicialcandidates. The self-disclosure forms were posted on July 8, and a statewide news release distributed. The forms are taken down from the website after the election.
This was the fourth year the committee offered this opportunity to judicial candidates.
• Judicial Feedback — Statistics for 2016 were grim, showing that few attorneys are providing feedback to judges either at the trial court level or to appeals court judges and Supreme Court justices. Over the years, the committee has heard that — despite assurances that the program maintains the anonymity of lawyers providing feedback — lawyers remain uncomfortable using it.
• Going Forward — The committee hopes that the Program Evaluation Committee review requested of its mission leads to a new, tightened focus and a better-used method of giving feedback to judges about how they are doing on the job. As with other public servants, constructive feedback can lead to better performance. All of Florida will benefit.
• Giving Thanks — The JAEC has a very active membership. I want to thank members for working hard to carry out the committee’s work — and for the forthright discussions on the issues before the committee. Special thanks also go to vice chairs, Melina Buncome, Judge Ross Mathew Goodman, and Alberto F. Tellechea-Hermida. Thanks go as well to the committee’s Board of Governors liaison, Lansing Scriven.
Harry Lee Coe IV, Chair
Judicial Nominating Procedures
The purpose and mission of this committee is to assist the governor and the Judicial Nominating Commissions (JNCs) in performing their duties under Fla. Const. art. V, §
11, and F.S. §43.291. The committee offers assistance to the governor with presenting an annual training program for all JNC commissioners and will continue to offer suggestions for improvements to the judicial nominating process. The committee will continue to keep commissioners apprised of any new legislation, rules, or court decisions that may affect their duties and will offer our full support to the governor’s office.
• JNC Training — Pursuant to a JNC uniform rule, new commissioners are required to undertake a training program within the first 12 months of appointment, which must include segments regarding interviewing techniques and diversity sensitivity. This committee is currently working on putting together a video segment on implicit bias, which will be posted on our committee page and offered as a free CLE.
• Featured Speakers During the Year — We thank our many speakers who gave up their time to come to our committee meetings and share information on the many facets of diversity:
• Jennifer Shoaf Richardson: FAWL, chair, ad hoc JNC Monitoring Committee
• Amy Bandow: vice president, Hillsborough Association for Women Lawyers
• Theresa Jean-Pier Coy: president, George Edgecomb Bar Ass’n
• Judge Peter Estrada: judge, 10th Circuit and chair of the Supreme Courts’ Committee on Fairness and Diversity
• Judge Claudia Isom: judge, 13th Circuit and working with Judge Estrada on diversity training for judges
• Bruce A. Mount, Jr.: former president, Virgil Hawkins FL Chapter of the National Bar Association and vice chair of the Diversity and Inclusion Committee
• Subcommittees — JNPC Member Liaison with each JNC — chaired by Oscar Sanchez. The objective of this subcommittee is to let each JNC know that the JNPC is available to help them and what resources we have available to them. We also encourage them to be mindful of the need for more diversity on the bench. Survey Monkey was mentioned as a way to obtain more feedback from both a JNC applicant and from a JNC commissioner’s perspective.
Constitutional Revision Subcommittee — co-chaired by Judge Ed Artau and Richard Bush. This subcommittee considered relevant provisions in the Florida Constitution and the Florida Statutes relating to the merit selection process and judicial nominating process.
The committee previously approved and sent to the Board of Governors Special Task Force on CRC two recommendations: 1) the minimum qualification for trial judges be increased from five to 10 years admittance; and 2) increasing the mandatory retirement age from 70 to 75 years of age.
The committee has also undertaken the issue of the selection of JNC commissioners. Legislation over the past years has granted the selection of commissioners solely in the hands of the governor. This was a change from Governor Askew’s initial plan, which allowed for the governor, The Florida Bar, and the individual commissions to select the membership. The committee is looking at this issue with an eye toward making a recommendation as to its viability. A final recommendation should be made at our June meeting.
Model Code of Conduct for JNC Members — co-chaired by Judge Ed Artau and Richard Bush. The Institute for the Advancement of the American Legal System out of the University of Denver has assembled a small working group to develop a model code of conduct for judicial nominating commissioners. A booklet was produced, “Building a Diverse Bench: A Guide for Judicial Nominating Commissions,” and sent to all JNC chairs and vice chairs. These model rules will be compared to the existing JNC uniform rules and a report is due at the June meeting.
Diversity/Implicit Bias — chaired by Robert Vaughan. This subcommittee is looking at tangible goals for improving diversity and inclusion and the perceptions from the current global makeup of the JNCs and the judiciary. It will address concepts of implicit and explicit bias and will ultimately make recommendations to improve the nominating and training processes.
Liaison Between Voluntary Bars and the JNPC — co-chaired by Cory Person and Rebecca Oscariz. This subcommittee is looking at ways to get information to the voluntary bars that wish to educate their members about the JNCs. They are considering CLEs, such as “Demystifying the JNC Process,” for applicants and one for YLD members to help groom young attorneys with judicial aspirations. Another means of communication could be some relevant articles or columns to help understand the JNC process and how to serve on a JNC.
This year has been one of exposure to many new ideas to enlighten and educate the JNC commissioner and for those that come before them seeking the highest goal of some attorneys — becoming a judge. It is important to make this process transparent and those involved more knowledgeable.
Linda Bond Edwards, Chair
Juvenile Court Rules
The Juvenile Court Rules Committee is divided into two subcommittees, one specializing in juvenile delinquency issues (primarily F.S. Ch. 985) and one specializing in juvenile dependency issues (primarily F.S. Ch. 39). These members volunteered many hours and brought different perspectives to the group, including from the judiciary, court clerks, prosecutors, defense counsel, the Department of Children and Families, and guardians and attorneys ad litem. This Bar year, the committee continued to be quite productive.
After working expeditiously and diligently, resulting from extensive recommendations of the Select Committee appointed by the chief justice regarding ineffective assistance of counsel claims in termination of parental rights cases and the Appellate Court Rules Committee, the Juvenile Court Rules Committee submitted an out-of-cycle joint report from all three committees to the Supreme Court. Two sets of rules were articulated in the reports: a narrowly tailored view that provided a mechanism for raising ineffective assistance of claims regarding only court-appointed counsel and a broad set of rules that would apply to all counsel for all parents in termination of parental rights cases. The JCRC also responded to numerous comments regarding concerns with the rules and participated in oral argument. The Supreme Court in SC16-553 recently released an opinion adopting the broad version in implementing the amended rules of procedure.
The JCRC also responded to proposals by the Rules of Judicial Administration Committee regarding proposed amendments to the Rules of Judicial Administration regarding “lead attorney” and “limited representation counsel” in delinquency and dependency cases. The case, Amendments to the Rules of Judicial Administration, Florida Criminal Procedure, and Florida Appellate Procedure (SC16-1062), remains pending at this time and has been scheduled for oral argument in June. The comments of the JCRC addressed distinct problems in juvenile cases with designating lead and limited representation counsel. As a result of the comments of the JCRC, the RJAC and the JCRC have agreed to additional proposed changes addressing the concerns in juvenile cases.
The committee continues to complete work on the 2018 cycle report. The committee has worked on numerous rule amendments, including a dependency rule permitting testimony by electronic equipment; adding provisions to the notice to appear; and orders to take into custody delinquency rules to ensure children in state custody are not detained needlessly due to no fault of their own; creating a new form to ensure juveniles understand consequences of their plea; and amendments necessitated by statutory changes.
None of this year’s work could have been accomplished without the dedication and hard work of all committee members, especially vice chairs Jeff Dean, Kara Fenlon, and David Silverstein. I thank all our members for the many hours they devoted to this work, their good humor, and their ability to work together. This was a trying year with the compressed time periods in which the JCRC had to act regarding the IAC and RJAC rules proposals. I have enjoyed working with each of them, and I am grateful for their support throughout this year. I especially thank Krys Godwin at The Florida Bar who graciously stepped in to act as our liaison resulting from personnel changes within the Bar. Her assistance was invaluable.
I am honored to have once again led the Juvenile Court Rules Committee during this extraordinary year.
Ward L. Metzger, Chair
Juvenile Law Certification
The Juvenile Law Certification Committee will see the fruits of its initial labors this August when the first cadre of juvenile lawyers are awarded board certification. The number of applicants for the first year of certification exceeded our expectations with 130 attorneys seeking certification. We hope that next year will bring another bumper crop of applicants as it will be the final year that lawyers with 20 years of experience can seek certification without examination.
This certification includes those who primarily practice in dependency court, those who practice in delinquency court and attorneys who specialize in representing children in other arenas. Because children often cross between systems, we feel it is important for board certified lawyers to have knowledge in all arenas. The importance of certification for practitioners in our field was articulated in a January federal guidance on high-quality representation for all parties in child welfare cases. That guidance from the children’s bureau recommended that states encourage certification for attorneys in the child welfare arena as one of the ways to improve outcomes for children and families. We’re happy that Florida is now ahead of the game!
Members of the Juvenile Law Certification Committee are Robin Rosenberg, chair; Rob Mason, vice chair; and Gerry Glynn, Tamara Gray, Meshon Rawls, Maria Schneider, Deborah Schroth, Whitney Untiedt, and Laura Vaughan-Bosco. Thanks to all for their expertise, passion, and for putting our children first.
On behalf of the entire committee, I thank our Bar liaison, Maritza McGill, for her wisdom, insight, expertise, and patience in guiding the committee through the process.
Applications for next year’s certification are currently available online, and the filing period will be open from September 1 to October 31. The examination will take place in May 2018 and we will welcome the second set of board certified lawyers in August 2018. I encourage all eligible attorneys to apply for certification; it’s a great way for a juvenile practitioner to advance one’s skills, professionalism, and ability to network.
Robin Rosenberg, Chair
Labor and Employment Law Certification
The Labor and Employment Law Certification Committee oversees the certification of attorneys as labor and employment law specialists recognized by The Florida Bar. The Florida Bar certified the first class of labor and employment certified specialists in 2001, and there are currently 200 labor and employment certified lawyers in The Florida Bar. Board certified specialists in labor and employment practice under a myriad of public and private sector labor and employment laws, providing advice and counsel for both employee and employer-side representation in transactional, litigation, and appellate practices.
The Labor and Employment Certification Committee reviews the applications for those lawyers seeking initial certification, as well as the renewal applications for certified attorneys seeking recertification every five years. To initially qualify for labor and employment certification, lawyers must be a member of The Florida Bar for five years, be substantially involved (at least 50 percent of their practice) in labor and employment law, complete 60 hours of advanced CLE of approved labor and employment law credits, pass a rigorous peer review process, and pass a certification exam. The certification exam currently consists of 100 multiple-choice and 40 short-answer questions, along with two essays, one mandatory and a second one in which the test taker can choose among one of three essays.
For the 2016-2017 certification year, the Labor and Employment Certification Committee reviewed 15 initial applications. Of those, 14 sat for the certification exam administered in March in Tampa. As of the publication of this report, exam results are still pending. The committee also reviewed and renewed 80 recertification applications this year.
The committee met numerous times since June 2016 to review applications and draft and grade the certification examination. In addition to the committee’s traditional application review and exam drafting duties, the Labor and Employment Certification Committee, in conjunction with a request from the Labor and Employment Executive Council, separately met to evaluate potential recommended changes to the current labor and employment certification standards. That review is still underway as of this writing.
The hardworking and dedicated members of the Labor and Employment Certification Committee include Vice Chair James Craig, Erick Drlicka, Eric Gabrielle, David Harvey, Damon Kitchen, Michelle Nadeau, Janet Wise, and Past Chair Cathleen Bremmer. Thank you all for your effort, diligence, professionalism, and commitment to upholding the high standards of this certification section. The committee also thanks our Florida Bar staff liaison, Jason Rawls. Our work on the committee could not have proceeded as smoothly without his dedication and attention to detail.
Sean M. Moyles, Chair
Law Related Education
The Law Related Education Committee (LREC) has had a fantastic year promoting effective law-related education programs in grades K-12 of Florida’s schools, with an emphasis on teaching young citizens respect for the legal system, for people, and their property. The LREC continues to be involved in a wide variety of educational and civic-minded activities in an effort to further the knowledge and experience of not only Florida students, but the public at large.
Here are a few of the projects the LREC has worked on this year:
The #JustAdulting Legal Guide for New Adults was revised with updates based on legislative activity in 2016 and court rulings. Ashlee Pouncy did a tremendous job working with her subcommittee to revise the guide, which included 20 sections of Florida law of interest to young adults. The new guide covers a variety of legal topics, such as signing contracts, how to attain credit, the court system, alcohol laws, employment, texting while driving, and includes a new section on police encounters.
The importance of having a guide with the most current information is further embraced by the team of attorneys who promote the information. Led by Annette Pitts, the #JustAdulting Campaign Subcommittee advanced the mobile website, “JustAdulting,” to help students become more knowledgeable about the laws affecting those 18 and older. In 2016, the LREC designed a digital communication tool so tech-savvy teens could access the information electronically, a high-tech improvement on the legal guide pamphlet that had been distributed to high school seniors statewide for decades. In 2017, the target audience was expanded to include college students. The web-based mobile site, #JustAdulting, was enhanced with a native app that can be downloaded to mobile devices from Apple’s iTunes App Store and Google Play for Android users or from www.justadulting.com.
In addition, a reliable push notification service was developed to provide the ability for the #JustAdulting mobile website to deliver messages across iOS, Android, Amazon Fire, Windows Phone, Chrome Apps, Safari, Chrome Web, and Firefox browser. This mobile website enhancement will leverage push notifications to send short, real-time, messages to users with announcements, news, or events complementary to overall 2017 campaign marketing plan.
The marketing campaign continued to utilize existing #JustAdulting social media platforms as well as add other highly targeted, high-traffic platforms like Twitter, Instagram, and YouTube to the mix. Audience exposure was also enhanced with measurable, targeted Facebook advertising designed to drive users to the mobile app and mobile website. Media outreach and grassroots marketing efforts around spring break and graduation supported paid media to create a strong message and awareness throughout Florida.
The marketing campaign, which runs from April to July, included statewide media outreach announcing the program and benefits. A series of press releases were developed and disseminated, targeting education writers and reporters at Florida daily and weekly newspapers, education and technology bloggers, high school and college/university newspaper editors, broadcast journalists covering education, technology and legal issues, and other relevant media. In addition, short articles about the campaign will be developed and disseminated to an array of third-party publications, including newsletters of associations and civic organizations serving educators, students, and their families. Florida high school principals were emailed, reminding them of the app and encouraging them to distribute the information to students. All of the campaign enhancements can be viewed on the Bar’s website at www.floridabar.org/justadulting.
The campaign also targeted the conferences and expos of education-related associations and legal organizations. The committee sought out opportunities for presentations and/or exhibits and included the new #JustAdulting iPhone display and related materials. In October 2016, Annette Pitts secured paid exhibit space and presentation time at the annual Florida Council for the Social Studies Conference in Orlando to showcase the #JustAdulting site. The conference hosts social studies teachers and supervisors from across Florida to provide training, professional development, and awareness sessions as well as exposure to new and innovative educational resources. Over 600 teachers attended the program this year. Other demonstrations and presentations were made throughout the year, including student-focused assemblies during the We the People…the Citizen and the Constitution academic competition in January, as well as the Florida High School Mock Trial Competition, among others in March. During the mock trial competition, FLREA presented a session on #JustAdulting during its orientation assembly. Additionally, the resources were highlighted during every round of competition during the training of judges and attorneys participating in the program.
LRE Committee member, Ashlee Pouncey, assisted Annette Boyd Pitts in January with a demonstration of the Quiz Show, which accompanies the #JustAdulting mobile app, during the We the People student assembly. Hundreds of students, teachers, and parents actively participated in the engaging presentation and learned about Florida law. In February, FLREA shared the new digital app and mobile website with teachers attending the Florida Supreme Court Justice Teaching Institute. A special presentation introducing the resource was made during the program and an exhibit was displayed throughout the weeklong program.
Pitts also assisted Justice Peggy Quince in her presentation of #JustAdulting to the 2017 Beaux of Tallahassee Links at the Florida Supreme Court. Postings on social media further extended the outreach of such programs and presentations. Shorter awareness presentations have also been made throughout the state at local events, as well as to an education subcommittee of the Florida Legislature.
Efforts are being made to engage with student affairs directors and those in charge of orientation activities for new students at all Florida colleges and universities to seek promotion of the mobile website and mobile app, as well as enlist The Florida Bar’s Law Student Division to promote the mobile website and apps used on college campuses. We also will use the broad resources of The Florida Bar to promote the mobile website and app to its members via email, newsletters and at The Florida Bar Annual Convention.
• National Recognition — The campaign was recognized nationally with two separate awards. The first was a 2016 National Association of Bar Executives/LexisNexis Community and Educational Outreach Award. The second award was a Luminary Award from the National Association of Bar Executives Communications Section.
• Moot Court and Mock Trial — It was an extraordinary year for the Florida High School Mock Trial Competition. LREC members assisted with case development and review as well as served as judges at the state and local competitions. The top five teams this year included 1) American Heritage Plantation; 2) Trinity Catholic (Ocala); 3) American Heritage Boca Delray; 4) Melbourne High School; and 5) Lakeland Christian Academy. The final round was close and competitive, but the teams were extremely prepared and professional. The rounds of competition were so exciting for our judges that we had 11 attorneys and judges ask to serve on the final round panel. Three sitting circuit and county court judges returned to serve as scoring judges during the final round just to participate and watch the teams compete.
An issue on appeal from the mock trial case has become the foundation for the 2017 moot court competition. Briefs have been received from all DCA regions and district competitions are currently underway. The final rounds took place May 1 and 2 in Tallahassee. FLREA is requesting a larger committee in 2017-18 to assist with the expansion of the program to middle school. Volunteers are needed to participate in the creation of fact patterns, witness statements, and other materials for the middle school and high school competitions as well as the high school moot court competition.
• Outreach and Development — Justice Teaching, founded by Florida Supreme Court Justice R. Fred Lewis in 2006, pairs a legal professional with elementary, middle, and high school educators in Florida. Today, the organization has more than 4,000 volunteer lawyers and judges delivering interactive civics lessons in Florida schools. To find out more about this fantastic program and how you can volunteer, go to www.justiceteaching.org. The LREC Justice Teaching Awards subcommittee, under the leadership of Jason Rice, procures nominations for the annual Justice Teaching awards. Every year nominations are sought to obtain volunteer (attorney) of the year, judge of the year, and teacher of the year awards, with the winners selected by Justice Lewis. The awards are presented at a special ceremony coordinated by the LREC.
• So You Want to be a Lawyer — This subcommittee, led by Ashley Pouncey, updated the digital consumer pamphlet found on The Florida Bar’s website for persons considering law as their career. The pamphlet link and an invitation to share the site was sent to high school principals for high school students to explore as they decide what undergraduate college they may attend and the availability of a degree program that would be a good basis for continuing education in law. As part of the college outreach, the site was also included in the #JustAdulting information for students to consider when deciding on a path after graduation. First-year law students were also invited to share the link and explore the recommendations made in the pamphlet about how to better prepare yourself for success after law school.
• LREC Facebook Page — The LREC also continued to share information with members and the public about the LREC, The Florida Bar, FLREA, and other law-related education programs and information.
It has been an exciting year for the LREC. Thank you to our committee members for attending meetings and working hard on committee projects. For more information, please visit our committee website, our Facebook page, the new “Just Adulting” app, the Justice Teaching website, and the Florida Law Related Education Association, Inc., website for more information on how you can get more involved in law-related education.
Sheri L. Hazeltine, Chair
The Florida Bar’s William Reece Smith, Jr., Leadership Academy successfully completed its fourth year and will graduate Class IV Fellows at the 2017 Florida Bar Annual Convention in June. This class was the beneficiary of several program enhancements: increased alumni relations, implementation of changes to the curriculum, and development of a new project in collaboration with the Center for Professionalism, which will serve the Bar and its membership.
These program changes were accomplished as a result of our recent efforts to obtain input from the class. Last year, we began to be deliberate in requesting the class to complete session feedback surveys. This is the second year we solicited feedback from the fellows by distributing surveys following each session — this input has served us well in meeting the expectations of the fellows. The fellows’ responses have provided insight into opportunities for program improvements. We analyzed the feedback and addressed the opportunities for improvement in the content of the curriculum and the quality of speakers.
One of the first changes made in response to feedback from our alumni was to reduce the class size by approximately 20 percent. Class IV included 40 fellows, who were competitively selected from a pool of over 100 applicants, and consistent with the diversity and inclusion goal of the program, is one of the most diverse classes to date. The class demographics were 66 percent females, 34 percent males, with the spectrum of race, disability, ethnicity, and sexual orientation, well represented, as well as geography, diversity in practice, and level of experience. Most of the lawyers are five to 10-year practitioners, however, the second largest group was one to five-year lawyers, and the remaining were 10-year plus practitioners. The class completed six two-day sessions of self-awareness and leadership training, an in-depth education about The Florida Bar, its sections and committees, as well as community boards. The caliber of the class IV Academy fellows is excellent, and the future of our local, regional, and state Bars and communities is bright.
The academy’s curriculum included:
• Session I — “Lawyers as Leaders,” at the 2016 Florida Bar Annual Convention;
• Session II — “Your Leadership Journey Begins,” at the July 2016 Voluntary Bar Leaders’ Conference in Naples;
• Session III — “Leadership in the 21st Century” at the Bar’s October 2016 Fall Meeting in Tampa;
• Session IV — “Leadership in a Diverse Society,” in November 2016, in Jacksonville;
• Session V — “Law for Leaders” in conjunction with The Florida Bar Board of Governors meeting in Tallahassee in January;
• Session VI — “Guardians of the Legal Profession and Servant Leadership” in Miami in April.
The class year began with the fellows observing the graduation of class III and being welcomed by Bar leadership — President Bill Schifino, President-elect Michael Higer, and Past President Eugene Pettis, who created the academy. Session I now also features Past President Gwynne Young’s personal insight and commentary about her former law partner, William Reece Smith, Jr., for whom the academy is named. Session IV was new in format and redesigned to be highly interactive and was one of the most popular sessions. The session included a stellar presentation by Bar Board of Governors member Carl Schwait, “Delivering your Message: Presentation Strategies for Leaders,” which consistently is a noted highlight of the program as noted by consistently exceptional reviews from the fellows. Session V was also very well received as the class had the opportunity to tour the Supreme Court, had a private audience with Chief Justice Labarga and Justice Pariente, observed the Supreme Court Pro Bono Award Ceremony, networked with the entire court at the award reception, and then closed the evening at the Supreme Court Historical Society Dinner. On the second day, they joined the Board of Governors meeting, which was also attended by the Supreme Court, listened to the Florida Supreme Court Chief Justice LaBarga’s “State of the Court” remarks, the board’s year in review for the court, and then were invited to lunch with the board and the court.
The Leadership Academy Committee, consisting of 31 lawyers from all around the state, has been tremendous in obtaining quality speakers and presenters. I acknowledge several program session chairs: Liz McCausland, Melanie Shoemaker-Griffin, Stefano Di Portigliatti, Sean Desmond, and Nikki Lewis-Simon, for their hard work and dedication to the planning and organization of the program sessions. Several other members of the Board of Governors, including the past and present Bar presidents, also volunteered their time to participate in these sessions, including Lorna Brown-Burton, Renée Thompson, Michelle Suskauer, John Stewart, and Lanse Scriven, to name a few.
Each year, the fellows are challenged with a group project, usually pertinent to the current issues and challenges facing the Bar, which is selected and developed by the President-elect. This year’s class IV project, “Program Toolboxes,” was recommended by the Center for Professionalism, endorsed by President-elect Michael Higer, and led by the Academy Committee’s vice chair, Melanie Griffin.
The project deliverable required the development of programs, in the form of toolboxes, which will provide all the necessary information and tools essential to presenting the programs. The Center for Professionalism will host a library on its website to provide this information to the Bar membership. Presently, the center features only one toolbox, the Mentoring Toolbox, and is looking forward to adding the eight new toolboxes by the end of the Bar year.
The class was divided into eight teams covering the eight different programs that were selected by President-elect Higer. Each team was tasked with making a “Toolbox” for their assigned topic. The eight topics selected are the “hot topics” about which the center is frequently contacted. When contacted about one of these topics in the future, the center will provide the toolbox to the contacting party, likely a voluntary bar or similar organization, as a resource for use with its members. The topics will include diversity and inclusion, financial competence and compliance with Bar rules and accounting, lawyer referral services/qualified service providers, mental health, mentoring and reverse mentoring, professionalism as a survival strategy, social media competency, and technological competency. The technology toolbox will fulfill the recent CLE requirement for technology credits and help meet the new and additional demand for this area of proficiency. The eight teams submitted their project outlines for initial review, made project presentations at the April meeting in Miami, and made final submissions in June. I acknowledge and personally thank Vice Chair Melanie Griffin, who led the class IV project, for her contributions in making this a meaningful experience.
Now in its fourth year, the academy has graduated three classes of alumni. Last year, we created an Alumni Program Committee, which is led by Vice Chair Kevin McNeil. The alumni relations subcommittee, which has been named LAARRS — Leadership Academy Alumni Relations and Recruitment Subcommittee, has engaged leadership academy alumni who are not committee members, to join and form a network for the alumni, which has been critical in alumni engagement. They have created three new events — a graduation reception (sponsored by Cohen Milstein), a Leadership Academy reception at the annual convention (sponsored by the Trial Lawyer’s Section), and the first annual Leadership Academy Family Reunion at the Bar’s Winter Meeting (sponsored by Florida Lawyers Mutual Insurance Company and Florida Power & Light Company). This effort creates no additional cost to the Bar. I thank Kevin, as he has certainly moved the needle with his subcommittee’s efforts in creating alumni programs and recruiting new academy applicants.
We have proactively worked with the Bar’s director of communications to devise a comprehensive marketing plan: articles in the Bar News ; strategic email notifications to voluntary bars, committees, and sections; and improved and increased content on the academy website. The Communications and Marketing Subcommittee, led by Bridget Friedman, created an aggressive and comprehensive internal marketing plan, distributed to our networks, and made specific invitations to apply. The Bar articles have spotlighted Leadership Academy alumni who have ascended to leadership roles in their profession or voluntary Bar, or who have been honored and recognized for their leadership. Some of the featured alumni include Beranton Whisenant, Jay Kim, Jami Coleman, and Barnaby Min.
The academy will receive its fifth class at the 2017 Florida Bar Annual Convention. The academy’s success is due to the collaborative efforts of the committee, The Florida Bar, and its staff. There are seven Florida Bar staff leaders who were critical to the success of the program: program coordinator, Arnell Bryant-Willis, the diversity initiatives manager for The Florida Bar, and her assistant, Briana Wilson, for their tremendous coordination and administration of this program; Jacina Haston, director, Sarah Bolinder, assistant, and Elizabeth Davis, director and program coordinator of the Henry Latimer Center for Professionalism, for their management and continuous improvement of the curriculum; Mike Garcia, the Bar’s director of research, planning and evaluation, who consistently provided his expertise and created the surveys for the academy; and finally, Francine Walker, director of communications, for her support in marketing and communications about the academy.
As significant as all these participants are, none of this would ever be possible without the continued support of our title sponsor, Florida Lawyers’ Mutual Insurance Company, who invested in this program since its inception, as well as Florida Power & Light Company, and many of the fellows’ law firms who supported the Academy.
Juliet Murphy Roulhac, Chair
Legal Needs of Children
The Legal Needs of Children Committee (LNOCC) was created to carry out the recommendations of 2002 Florida Bar Commission on the Legal Needs of Children report in the priority areas of representation, treatment and services, confidentiality, education, technology, and the courts. Here is a shortened Google link to the full commission report: https://goo.gl/E7yOhD.
In March, LNOCC drafted legislation for the historic creation of a State Office of Child Attorney (SOCA). The SOCA would be responsible for payment, training, and oversight of F.S. §
39.01305-appointed attorneys providing direct representation to Florida’s dependent children. No additional legislative appropriations and no guardian ad litem funding would be required to implement SOCA. https://goo.gl/ERCpkf
In April 2010, LNOCC attempted to create a Statewide Office of the Child Advocate comprised of a Division of Legal Counsel and a Division of the Guardian Ad Litem, but this measure died in the Senate Committee on Children, Families, and Elder Affairs. However, the national momentum toward direct representation for children has continued to build, with a majority of states now providing attorneys for dependent children. In August 2011, ABA adopted the Model Act Governing the Representation of Children in Abuse, Neglect, and Dependency Proceedings stating that the “court shall appoint a child’s lawyer for each child who is the subject of a petition in an abuse and neglect proceeding.” https://goo.gl/KDmokB
In May 2012, First Star Report “Child’s Right to Counsel: National Report Card on Legal Representation for Abused & Neglected Children” gave Florida an “F” grade while citing evidence that “children with effective counsel in dependency cases were moved to permanency at about twice the rate of unrepresented children. Shortened court cases and reduced time in foster care benefit children by hastening the time to permanency and benefit society by reducing court and foster care costs.” https://goo.gl/aI3CK2
In July 2014, the LNOCC celebrated the Florida Legislature’s creation of F.S. §
39.01305 mandating court appointment of attorneys for a dependent child with certain special needs. https://goo.gl/1cyi6T Unfortunately over the last three years, only about $3 million of the $8.8 million allocated by the legislature to §
39.01305 special needs attorneys was spent on direct representation of children. LNOCC’s draft SOCA legislation would remedy this problem to ensure that §
39.01305 is properly implemented statewide, and that all of Florida’s dependent children with certain special needs receive the effective legal representation and outcomes that they deserve.
In December 2016, further progress was made when The Florida Bar legislative position on the representation of children stated “to adequately promote and protect the legal rights and remedies of children, supports the development of a comprehensive system and structure for child representation that includes [g]uardian ad litem representation, [p]ublic [d]efender representation, and legal representation by both government paid counsel and pro bono attorneys by way of legislation substantially similar to the draft legislation approved by the Standing Committee on the Legal Needs of Children on November 16, 2009, which would create a statewide program of legal representation with some or all of the following components: (a) no child shall be denied the right to have the representation by an attorney for the child appearing on the child’s behalf in a dependency case whether volunteer or state paid….” https://goo.gl/GJW0JS
In January, a U.S. Department of Health and Human Services, Administration of Children and Families Report issued important national findings that legal representation of children is associated with tailored and specific case plans and services, increases in visitation and parenting time, expedited permanency, and cost savings to state government due to reductions of time children and youth spend in care. This national report stated the absence of legal representation for any party at any stage of the proceedings is a significant impediment to a well-functioning child welfare system, and cited “widespread agreement in the field that children require legal representation in child welfare proceedings. This view is rooted in the reality that judicial proceedings are complex and that all parties, especially children, need an attorney to protect and advance their interests in court, provide legal counsel and help children understand the process and feel empowered. The confidential attorney client privilege allows children to feel safe sharing information with attorneys that otherwise may go unvoiced.” https://goo.gl/fTRZH2 LNOCC is studying ways to implement the report’s framework to “encourage all child welfare agencies, courts, administrative offices of the courts, and [c]ourt [i]mprovement [p]rograms to work together to ensure parents, children and youth, and child welfare agencies, receive high quality legal representation at all stages of the child welfare proceedings.” LNOCC will continue its important work toward the creation of Statewide Office of Child Attorney and openly welcomes the continued and future support of Florida Bar members, Florida Law Firm Consortium, The Florida Bar Board of Governors, Bar presidents, and the Florida Legislature. https://goo.gl/qAB4aZ
LNOCC has continued its support of pending legislation to make it more difficult for the state attorney in each circuit to direct file juveniles as adults in criminal proceedings without greater oversight by the judiciary. This oversight, referred to as the reverse waiver, is utilized by many other states, and Florida is one of three states in the nation that allows for unfettered direct file of a juvenile from delinquency court to adult criminal court.
LNOCC also adopted a position that “Florida’s child-serving agencies should interact with children and families in a trauma informed manner. Those children and their parents who need services to recover from trauma will receive evidence-based trauma therapeutic services. To ensure appropriate services are provided, all children who are served by the Department of Juvenile Justice, and children and their parents who are served by the Department of Children and Families will be screened for trauma. If trauma is present, those children and/or their parents should be offered timely, effective therapeutic services.” The committee surveyed DCF and DJJ and noted that they have a number of trauma-related trainings and programs, but no apparent comprehensive coordination of trauma services. LNOCC will continue to work with these agencies in an effort to make a more comprehensive effort to address the trauma needs of children and families. https://goo.gl/Bi0hbu
I thank all the members of the LNOCC: vice chairs Matt Bachman, Robin Rosenberg, Bonita Jones Peabody, Shahar Pasch, and Anne McBride, as well as Florida Bar liaison, Richard Courtemanche, and administrative assistant, Joan Wussler, for their work making a difference for Florida’s children.
“Many things we need can wait. The child cannot. Now is the time the bones are being formed, the blood is being made, and the mind is being developed. We cannot say tomorrow.” — Gabriela Mistral
Tim Stevens, Chair
Marital and Family Law Certification
The Marital and Family Law Certification Committee is responsible for overseeing the process of certifying attorneys as marital and family law specialists recognized by The Florida Bar, and for reviewing the applications of currently certified attorneys seeking recertification because their terms are expiring. The certification process includes the following requirements: extensive peer and judicial review references, substantial involvement in complex marital and family law cases, trial of many family law cases, and passing a comprehensive, all-day exam. The committee encourages those attorneys who meet the criteria for certification to join their colleagues in the select group who have been “evaluated for professionalism, tested for experience.”
As chair of the Marital and Family Law Certification Committee, I am happy to report another successful year. The committee is comprised of nine board certified attorneys who work throughout the state. The committee first met in September 2016 to begin drafting the 2017 examination and to review initial and recertification applications. Over the next several months, the committee worked to continue the prior committees’ improvement of the quality of the certification exam to meet the high standards expected by committee members and The Florida Bar.
Of the more than 100,000 members of The Florida Bar, 273 are currently board certified in marital and family law. Sixty total attorneys applied to take the 2017 marital and family law certification exam. Thirty-one applicants, of the 60 total, submitted “abbreviated applications” after either failure or nonattendance at the 2016 exam. Ultimately, 35 applicants sat for the exam. The committee also reviewed 48 recertification applications this year.
The marital and family law certification exam contains five essay questions, 30 multiple-choice questions, and 25 short-answer questions. The exam is written to assess a marital and family lawyer’s fundamental knowledge of the law, analytical reasoning, and skill in applying knowledge to practical situations. On March 10 in Tampa, examinees answered these questions in two three-hour blocks. Grading is scheduled for late April and the results will be announced by the Bar no later than June 1.
The committee is grateful to the lawyers who participate in the confidential peer review process. Without candid commentary from applicants’ peers, the committee’s ability to properly review applicants’ qualifications would be severely curtailed. The committee emphasizes to Bar members and judicial officers that commentary is confidential and will not be divulged to any applicant.
It has been an honor for me to serve as chair of the committee this year, along with Lawrence Datz (vice chair), Alex Caballero, Jennifer Ficarrotta, Ben Hodas, Joe Hunt, Doreen Inkeles, Shannon Novey, and Douglas Reynolds. Having been active in Bar activities since I became a lawyer in 2001, I can tell you this group of people are some of the most hardworking and least recognized for their efforts. A tremendous amount of work goes on behind the scenes, vetting applicants, writing, and then grading the exam.
I would be remiss without thanking Lindsey Blomberg, our certification specialist/staff liaison. I truly could not do my job without her assistance, and she makes every meeting smooth and seamless. I also thank the BLSE chair, Scott Rubin, for attending one of our live meetings and providing his expertise and insight.
Elisha Roy, Chair
Media and Communications Law
The Media and Communications Law Committee (MCLC) shares information about the law of free speech and communication, exploring legal issues on a range of communications methods, including print, broadcast, cable, and emerging technologies. MCLC seeks to enhance the communication between The Florida Bar and the news media, focusing attention upon mutual problems, and developing amicable solutions to those problems. The committee plans the annual Media Law Conference, Reporters’ Workshop, media awards, and produces and updates the Reporter’s Handbook.
• Reporters’ Workshop — Craig Waters, chief spokesperson for the Florida Supreme Court, chaired the 2016 Reporters’ Workshop, which was attended by a diverse group of 24 print and broadcast journalists reporting from media outlets throughout Florida. Ana-Klara Anderson (NBC Universal Golf Channel) served as co-chair of the 2016 Reporters’ Workshop. Among the participants, Florida Supreme Court Justice Ricky Polston provided an introduction to the Supreme Court and led a courthouse tour. Reporters learned more strategies for legal reporting and covering the state courts from lawyers, judges, and experienced journalists on topics, such as Florida’s Constitution Revision Commission, Bar grievances, public records access, Florida’s death penalty, high-profile cases, and journalism and free speech.
• Media Awards — In September 2016, Samuel Morley of the Florida Press Association chaired the Media Law Awards, which was held during a dinner reception at the Capitol. Welcoming remarks were delivered by Bar President William J. Schifino, Jr., who presented plaques to recipients. Florida Supreme Court Chief Justice Jorge Labarga emphasized the importance of the free press and the media’s role in strengthening democracy in the keynote address. Neil Skene and Judge Errol Powell (Ret.) presented the media awards. The 61st annual contest, sponsored by the MCLC, recognizes outstanding journalism highlighting the system of law and justice as it affects Floridians. Again, this year, thanks to generous donations of event sponsors, awardees received distinction for their contributions and prize awards. The cash awards follow other state bars’ and press associations’ media recognition programs. Reporters winning first-place awards received $500, and those winning second place received $250.
The Susan Spencer-Wendel Lifetime Achievement Award for Excellence in Legal Journalism recognized a Florida journalist or media outlet for extensive coverage and/or commentary on the law, the delivery of legal services, and the justice system. Julie Kay, the second recipient of the award since its inception, received the award posthumously. She was a long time Daily Business Review reporter. Kay reported on the law, legal cases, and the justice system in a fashion that was informative to and understandable by everyone, not only those in the legal area.
• Media Law Conference — A major undertaking for the MCLC was the continuation of the Media Law Conference, which was held April 7 in Miami at the University of Miami School of Law. Conference co-chairs Mamie Joeveer (Hogan Lovells LLP) and Ana-Klara Anderson (NBC Universal Golf Channel) have led this effort, and the conference committee has worked diligently in putting this conference together. The conference’s theme is “Cybersecurity, Fake News, and The Trump Administration,” and includes a series of panel discussions and feature presentations with an esteemed group representing former federal government attorneys, local and national media law attorneys, journalists, and law professors. The conference is approved for CLE credit by The Florida Bar.
• First Amendment and the U.S. Supreme Court — Continuing with its long tradition, the MCLC’s annual convention CLE program on First Amendment issues before the U.S. Supreme Court was organized by Thomas Julin (Hunton & Williams LLP). In 2016, the panelists for First Amendment Law Supreme Court Update included U.S. 11th Circuit Court Judge Adalberto Jordan, retired Florida Third District Chief Judge Alan Schwartz, University of Florida Law Professor Lyrissa Lidsky, Florida International University Law Professor Howard Wasserman, Hunton & Williams partner Jamie Z. Isani, and Carlton Fields Jorden Burt partner Richard J. Ovelmen.
• Sunshine Seminars — MCLC members also participated in the Florida First Amendment Foundation’s Sunshine Seminars, several one-day workshops in which committee volunteers traveled to various Florida cities to educate the public about open government and media law issues.
In closing, I recognize and thank Vice Chairs Ana-Klara Anderson and David Konuch for their outstanding service. Further, my gratitude and sincere appreciation to the members of MCLC for a great year.
Judge Errol H. Powell (Ret.), Chair
The mission of The Florida Bar Member Benefits Committee is to review and evaluate existing benefit programs for Bar members, evaluate programs and services offered to the Bar for members, and make recommendations to the Board of Governors on changes or additions to the benefits program. During the past year, the Member Benefits Committee under the leadership of Duke Fagan has taken this mission seriously, and worked diligently evaluating existing programs and reviewing potential member benefit programs. The committee reviewed more than 15 proposals from potential Bar member benefit providers during the 2016-2017 fiscal year, and approved several new member benefits for recommendation to the Board of Governors that were approved and added to The Florida Bar Member Benefit program. Among the new member benefits added were the eFileMadeEasy, Office Depot/Office Max, and 360 Biz Vue search engine optimization member benefits that will be available by summer 2017. The committee is currently reviewing member benefit proposals for Dell and Lenovo for potential computer hardware benefits and Zola Media for a potential website design and maintenance benefit. The Florida Bar also became one of the first states to make the enhanced Fastcase 7 legal research member benefit available to members. Member Benefits Committee Chair Duke Fagan encourages all Bar members to visit www.floridabar.org/MemberBenefits to take advantage of the wide array of discounted professional and personal services offered through The Florida Bar member benefits program. Please also check out the expanded member services available through The Florida Bar Practice Resource Institute, www.floridabar.org/PRI,
and the Lawyers Advising Lawyers program, www.lawyersadvisinglawyers.com.
Carlton Duke Fagan, Jr., Chair
The scope and function of The Florida Bar Military Affairs Committee includes gathering and disseminating information, sharing expertise, and advising members of The Florida Bar and other attorneys on all matters relating to the practice of military law in Florida. The committee also provides review of new policies and procedures affecting Florida’s military and veterans when needed. The committee is a liaison between The Florida Bar and the active duty, reserve, National Guard, and retired military attorneys within Florida and outside the state.
The committee’s members are volunteers from the Bar and include active-duty judge advocates generals (JAGs), reserve and National Guard JAGs, members of large and small law firms, sole practitioners, and state agency attorneys. Prior military service is not a requirement for committee membership. The committee is composed of Bar members with an interest in furthering the ability of our profession to provide assistance to active or reserve members of the U.S. Armed Forces, retired members, and all veterans.
The highlight of the committee is the annual Military Law Symposium, a full day of continuing legal education held last year during the annual convention in Orlando. Our 2015-2016 Military Affairs Committee chair, Martin Stern, coordinated a high-quality and well-received program. The symposium focused on military-specific aspects of VA claims administration and the claims process, veterans’ burial benefits and estate planning. The keynote speaker was Commander Scott Johnson, the assistant general counsel for operations, transactions, and compliance at U.S. Central Command Staff Judge Advocate, Special Operations Detachment — Central (airborne).
The 2017 Military Law Symposium takes place June 24 during the Bar’s 2017 annual convention. This year, the symposium includes a roundtable discussion on veterans treatment courts, with special guests Judge Tina Caraballo, Ninth Judicial Circuit Court; Richard Hornsby, defense attorney, veterans treatment court; and D.J. Reyes, colonel, U.S. army (retired) senior veteran mentor/coordinator, 13th Judicial Circuit Veterans Treatment Court, as well as a presentation from Mission United of Broward County. Additional speakers will be presenting information related to military divorce and family law issues, updates to legislation related to veterans’ disability benefits, and homelessness issues for veterans. Finally, the committee is honored to welcome State Representative Christopher Sprowls, who will discuss his efforts related to veterans and military issues in Florida, and our keynote speaker, State Senator Audrey Gibson, District 6, military and veterans affairs, space and domestic security chair. Special thanks go to subcommittee members Deborah Ahearn, Vanessa Brice, and Melissa Martin for their fantastic efforts in pulling this event together. We encourage Bar members to attend this day of outstanding CLEs and join us in support of America’s heroes and their families.
The Military Affairs Committee continues to work diligently on its ongoing efforts to connect veterans, active duty military members and their families to the legal resources available to them in Florida. A redesign of the committee web page is in progress that will provide a comprehensive list of, and links to, the available resources offered to Florida veterans, active duty military, and their families. Subcommittee members Andrea Keiser, Eric Hughes, Deborah Ahearn, Melissa Martin, and Christie Bhageloe are working together to gather information from the local bar associations regarding services offered to identify available relevant legal resources and attorneys who wish to assist Florida’s military community. Links and information from other agencies and organizations around the state offering benefits and support to Florida’s military community will also be included on the new webpage. Further, the committee currently uses a Listserv to manage and disseminate requests for legal assistance from active-duty military members that it receives from the ABA Military Pro Bono Project, as wells as any requests received directly from veterans, service members, or other attorneys or organizations that contact the committee on behalf of veterans seeking legal assistance.
The Military Affairs Committee has worked diligently over the year toward the final approval of Chapter 21 Military Spouse Authorization to Engage in the Practice of Law in Florida. Under this rule, military spouses will be permitted to seek admission as the spouse of a full-time active duty member of the U.S. Armed Forces while the lawyer’s spouse is stationed in Florida. The proposed rule, drafted through the diligent efforts of William C. Henry and outstanding support from and consultation with the entire Military Affairs Committee, outlines the requirements for admission, including requiring military spouses to apply to the Board of Bar Examiners, to pay an application fee established by the Board of Examiners, and to receive character and fitness clearance from the board. This rule was unanimously approved by The Florida Bar Board of Governors in October 2016, and is currently pending before the Florida Supreme Court for final approval.
The committee sponsors the Clayton Burton Award of Excellence. Named for the founder of the Military Affairs Committee, the award is presented to the person who demonstrates outstanding character and leadership in dedicated service to Florida military members and their families. The award was presented to William C. Henry at the annual committee meeting at the symposium on June 18, 2016, and will be presented to a new recipient at the committee meeting following the symposium on June 24.
Special thanks to Jeremy Citron, the liaison to the Military Affairs Committee for his positive attitude, diligence, and exemplary support to this committee.
Tina M. Fischer, Chair
Prepaid Legal Services
The Prepaid Legal Services Committee was established over 40 years ago by the Board of Governors of The Florida Bar to further the Bar’s longstanding policy promoting and improving the citizens of Florida’s access to justice and the legal system. The Bar recognizes that members of the general public may not seek legal assistance for a variety of reasons, including the inability to locate an attorney and concerns related to the fees and costs tied to legal representation. The committee furthers the policy of The Florida Bar, as expressly stated in Ch. 9 of the Rules Regulating The Florida Bar, “[T]o support the concept and to actively encourage the establishment, operation, growth, and development of legal services plans as a means of increasing a person’s ability to obtain legal services at an affordable cost in order to have the opportunity to better gain access to the legal system.”
Chapter 9 expressly sets out the requirements for, and regulation of, a legal service plans whereby a sponsor contracts directly with a managing attorney for the provision of legal services to the sponsor’s group of individual members, who are identifiable in terms of a common interest or affinity. Groups eligible for such plans include, but are not limited to, religious organizations, educational institutions, credit unions, labor unions, companies, and associations. During this past year, the committee received and responded to new inquiries related to the creation of new Ch. 9 legal services plans. The committee also reviewed and considered renewed plans as well as new plans during its meetings held in June 2016, October 2016, and most recently, in January 2017.
Although the primary duty of the committee is to review proposed legal services plans submitted by fellow members of The Florida Bar in order to ensure plans are in compliance with Ch. 9 and the “Legal Services Plans Rules and Regulations,” the committee also furthers Florida Bar policy by creating a greater awareness among consumers as to the existence and availability of legal services plans, and by promoting the concept of the legal services plan as an avenue to improve individual access to the legal system in order to gain access to justice. Additionally, the committee educates its fellow members of The Florida Bar as to the entrepreneurial benefits presented in creating and administering legal services plans, and in working with already established legal services plans. Consequently, the committee once again looks forward to co-sponsoring a seminar with the Florida Lawyers’ Legal Insurance Corporation (FLLIC) at the 2017 Annual Florida Bar Convention at the Boca Raton Resort & Club. I thank co-program chairs, Rinky Parwani (FLLIC), and our committee’s own vice chair, Benjamin Carpenter, for their efforts in coordinating this year’s joint presentation titled, “Chapter 9 Legal Services Plans PLUS How to Market and Make Money Using Alternate Legal Service Plans.”
The committee anticipates this year’s event will be a great experience for all participants, presenters, and attendees and is honored to have again past committee Chair John Schaefer open the committee’s segment of the seminar by speaking on the creation of successful Ch. 9 legal services plans. We also look forward to another lively panel of current managing attorneys discussing the practical operational aspects of legal services plans.
As I complete my year as chair of the Prepaid Legal Services Committee, I thank all the members of our committee for their service and involvement. It has been a privilege to serve and follow in the footsteps of past chairs, including Ken A. Showalter III, John Schaefer, and John Josephs; I thank each of them for their wisdom and insight during my time as chair. I also wish the incoming chair and vice chair great success as they continue the committee’s longstanding tradition of service to The Florida Bar and the citizens of the State of Florida. Finally, I give my sincere personal thanks to Ricky Libbert, program administrator and our committee liaison to The Florida Bar. Her ongoing efforts, service, and experience have been vital in ensuring continuity and the continuing success of this committee.
Gerald W. Pierre, Chair
Pro Bono Legal Services
In 2016, The Florida Bar’s Standing Committee on Pro Bono Legal Services continued to encourage pro bono participation and coordination among all of the state’s 20 judicial circuits and its federal courts. The committee supported the following efforts, among others, seeking to improve and encourage pro bono involvement:
The committee continued to support the work and activities of the Florida Commission on Access to Civil Justice. Several members of the committee now serve on the permanent commission. The committee supported and encouraged the Clay County pilot project of the commission, the Florida Legal Access Gateway (FLAG). Committee members Dominic MacKenzie and William Van Nortwick worked on the design and implementation.
The All Circuits Subcommittee, led by Judge Ashley Moody, organized a second meeting of all 20 circuit pro bono chairs in conjunction with the fall meeting of the Bar. The subcommittee identified three goals for the circuit committees in 2017: identify all legal aid providers and pro bono work in each circuit; produce a one-page list of all pro bono activities of the Circuit Committee; and have all statewide pro bono opportunities listed on the circuit’s webpage on the floridaprobono.org website. The Standing Committee received annual reports from all 20 circuits, and 19 of the 20 circuits have administrative orders promoting pro bono participation by attorneys of the circuit. The All Circuits Subcommittee worked closely with Ericka Garcia, director of pro bono programs with the Florida Bar Foundation, to engage with the circuit committees, collect administrative orders and plans, and promote pro bono participation and enthusiasm.
The Rules Subcommittee, chaired by Dominic MacKenzie, studied, worked on, and promoted rule changes aimed at increasing pro bono participation and opportunities.
1) The emeritus rule will expand the definition of emeritus attorneys to include more than 3,000 additional emeritus eligible attorneys in Florida. The rule is now before the Florida Supreme Court for approval.
2) The Standing Committee passed a resolution to recommend that the Board of Governors adopt ABA Model Rule 6.5 with revisions. This rule, which will be Rule 4-6.6, addresses conflicts of interests for lawyers providing short-term limited legal services under the auspices of a program sponsored by a nonprofit organization or court.
3) The subcommittee has also focused on changes to the cy pres award rule in response to suggestions from the Florida Commission on Access to Civil Justice. The standing committee is working on a proposed rule for discussion in 2017.
A subcommittee, chaired by Chief Judge Laurel Isicoff, reviewed the collective services plan, Rule 4-6.1(c) of the Rules of Professional Conduct, to determine whether the rule should be changed and to consider whether a best-practices plan should be developed. The subcommittee developed a new form and procedure for law firm collective satisfaction plans to be filed each year by the circuit pro bono committees with the annual report of the committee.
The standing committee recommended that the Bar explore making changes to the annual dues statement so that members would not be able to submit the dues statement online without the required pro bono reporting, and that the Bar further address the reporting requirement on the dues statements that are returned by mail. The recommendation has been sent to a Bar committee for review.
The committee worked with the Florida Justice Technology Center and the Florida Bar Foundation through Ericka Garcia to improve opportunities and access for pro bono volunteers at floridaprobono.org. Suggestions by the committee for adding the circuit reports, providing links for help, and updating the calendar have been incorporated into the updated website.
The Florida Bar Foundation selected co-chair of the committee, Kathy McLeroy, as the recipient of the Foundation’s Medal of Honor Award. Committee member Bruce Blackwell was selected by the Florida Supreme Court as the winner of the 2017 Tobias Simon Pro Bono Service Award. In addition, Chief U.S. Bankruptcy Judge Laurel M. Isicoff of the Southern District of Florida was selected by the Florida Supreme Court as the recipient of the 2017 Distinguished Federal Judicial Service Award.
The committee worked with the Appellate Practice Section of The Florida Bar to find pro bono attorneys to represent low-income Floridians in appeals.
The committee supported and encouraged the statewide Florida Lawyers in Libraries program.
Through the work of the committee, Florida continues to make improvements in the delivery of pro bono legal services to low income Floridians.
Kathleen S. McLeroy & Judge Vance E. Salter, Co-Chairs
The Professional Ethics Committee is responsible for providing guidance to Bar members on the Rules of Professional Conduct. Formal committee opinions are available on the Bar’s website at www.floridabar.org. The committee also provides informational packets and topical information on the website. A link to “Ethics” is included at the top of every page of the website. This link leads to the main page for ethics information, including links for formal ethics opinions, the Rules of Professional Conduct, informational packets, and other topical information relating to lawyer ethics.
The committee is staffed by the Bar’s Ethics Department. The Bar’s ethics attorneys research and draft informal staff opinions and maintain the toll-free ethics hotline for Bar members. The committee reviews informal written opinions issued by the Bar’s ethics attorneys and reconsiders them sua sponte if the committee deems appropriate or if the inquiring attorney seeks review of the informal staff opinion. In addition, the committee sponsors an annual professional ethics seminar. The committee met three times this year to consider many ethical issues.
• Formal Advisory Opinion Procedures — The Florida Bar procedures for ruling on questions of ethics govern the process by which staff issue informal oral and written opinions and by which the committee issues formal opinions. The committee may issue formal opinions on review of staff opinions and existing formal opinions. Additionally, the Board of Governors may request that the committee issue a formal opinion concerning the application of the ethics rules to certain facts. When issuing proposed formal opinions, the committee publishes official notice in The Florida Bar News, inviting Bar members to comment. The committee values the input provided by these comments and encourages Bar members to comment on proposed ethics opinions. The procedures are available on The Florida Bar’s website at www.floridabar.org by choosing the “Ethics” link.
• Final Advisory Opinions —
Advisory Opinion 16-1 addresses the question of whether it is permissible for an attorney, who previously advanced costs in a client’s negligence case, to “forgive” the client’s debt for the costs advanced by the attorney. Under the facts presented, the client’s cause of action was eliminated by an appellate decision. The attorney still managed to settle the matter for the client, but the client’s medical bills and costs were nearly double the amount of the settlement. The governing contingency fee agreement provided the costs would be advanced by the attorney and repaid from any recovery. The attorney decided not to collect a fee and wished to not pursue repayment of the costs advanced so the client could receive some funds related to the settlement. The committee determined that the attorney may “forgive” repayment of advanced costs from a client’s recovery where there has been no agreement for the inquirer to be unconditionally responsible for the costs at the outset of representation, the cost “forgiveness” occurs after settlement, and the attorney will receive no fees for the representation. The inquirer was also advised to be mindful of third-party interests in the settlement funds and the lawyer’s obligation of candor to third parties.
A dvisory Opinion 16-2 concerns whether a criminal defense lawyer can provide a client with information about a financing company that could loan money to the client to pay the lawyer’s fee. The inquiring lawyer had no ownership or other interest in the financing company. The lawyer would offer clients all available options for paying the fee, such as payment plans and credit cards, in addition to the financing company. If the client chooses to use the financing company, the client applies online to the financing company. Loan amounts vary, repayment ranges up to five years, a financing fee is charged by the financing company, and the interest rate charged varies, depending on the client’s credit score. The financing company alone determines the loan amount, financing fee, repayment plan, and interest rate. The committee advised that a lawyer may provide clients with information about a financing company as long as 1) the lawyer has no ownership or other interest in the financing company; 2) the lawyer offers clients all available fee options including payment plans and credit cards; 3) the lawyer does not charge participating clients any higher fee; 4) the lawyer does not recoup the finance charge from the client; 5) the lawyer will continue the representation regardless of whether the client repays the loan to the financing company; and 6) the lawyer receives no benefit from the financing company for any client’s participation other than the lawyer’s fees for representation for which the client will repay the finance company.
• Issue Currently Under Consideration — The Professional Ethics Committee will consider adopting a proposed advisory opinion based on a request from The Florida Bar Board of Governors on the issue of whether a Bar member may divide fees with out-of-state co-counsel, with whom the Bar member is otherwise authorized to divide fees, where the out-of-state attorney is in a firm with a nonlawyer owner and the firm is in a jurisdiction that allows nonlawyer ownership of law firms. A proposed advisory opinion has not yet been drafted.
• Appeals of Written Staff Opinions — At each of its meetings, the committee considers appeals by attorneys of written staff opinions in response to inquiries submitted by the attorneys and/or appeals where staff declined to issue an opinion. Among such appeals considered by the committee were the following: a staff opinion addressing conflicts of interest when a former in-house counsel for an insurance company goes into private practice and represents clients in the same types of matters against the former client insurance company, and a denial of a staff opinion regarding charging costs in participate with a legal services plan.
• Masters Seminar on Ethics — The Professional Ethics Committee’s yearly CLE program addresses areas of ethics of great significance to Bar members at the annual convention. The seminar subcommittee is chaired by Keith Rizzardi. The other members of the subcommittee are C.C. Abbott, Drew Demers, Hope Newsome, and Alyssa Katz. The seminar was selected to be part of the presidential showcase and promises to be outstanding again this year. It will be presented at the June Annual Convention and provide four hours of ethics CLE credit. The seminar will focus on conflicts involving technology, social media, the use/misuse of disqualification motions, and cannabis. Speakers include Sandra Carbone, Joseph Corsmeier, Rachel Gillette, Melissa Koch, Prof. Leonard Pertnoy, Gerald Richman, and U.S. District Court Judge Mary Scriven.
& #x2022; Informal Ethics Opinions Service — The ethics opinion process continues to rate as among the most desirable services on membership surveys. The committee is committed to providing ethics guidance to Bar members. The committee thanks the staff of the Ethics Department for their dedication, assistance, and support in providing such guidance throughout the year. Staff had another busy year on the Ethics Hotline, handling 25,722 calls during fiscal year 2016, in addition to providing hundreds of written staff opinions and other ethics correspondence.
Finally, the committee thanks our board liaison, Thomas R. Bopp; Ethics and Consumer Protection Division Director Lori Holcomb; and our hardworking staff: ethics counsel, Elizabeth Clark Tarbert, assistant ethics counsels Cynthia E. Booth, Joy A. Bruner, Huy-Yen T. Cam, Gail E. Ferguson, Jonathan Grabb, Jeffrey M. Hazen, and LiliJean Quintiliani, and paralegal, Donna Hostutler. Without the participation, guidance, experience, and hard work of these individuals, the business of this committee could not be accomplished.
Brian T. Coughlin, Chair
The mission of the Standing Committee on Professionalism is to assist the Florida Supreme Court Commission on Professionalism, The Florida Bar, and The Florida Bar’s Henry Latimer Center for Professionalism in implementing programs, events, and activities to promote professionalism throughout the state. This year, the committee was divided into several working groups that took on specific tasks.
• Awards Working Group — Led by chair, Judge Frances Perrone, this group oversaw the entire process leading up to the selection of all three major professionalism award recipients, including the William M. Hoeveler Judicial Award, the Law Faculty/Administrator Award, and the Group Professionalism Award. Additionally, the working group developed a strategy to promote and educate members of the Bar about the awards, reviewed nominations, and made recommendations to the full standing committee regarding selected recipients.
• Circuit Professionalism Working Group — Chaired by Judge Caroline Tesche Arkin, this working group was responsible for collecting and compiling the circuit professionalism reports from each of Florida’s 20 judicial circuits. The reports were submitted to Justice R. Fred Lewis, chair of the Supreme Court Commission on Professionalism. The group reviewed the reports from the prior year and considered changes and additions to the forms. Group members were assigned to circuits and ensured that these reports were collected and summarized for use by the center. The information from these reports is invaluable to the bench and the Bar in measuring the effectiveness of professionalism programs and efforts around the state.
• Education and Resources Working Group — This working group, led by Chair Howard Marsee, has been supplying the center with articles and personal submissions for use in The Professional,
the center’s tri-annual newsletter and in the Henry Latimer Professionalism Library Guide. This year, the use of a theme for each newsletter produced more article submissions and subscribers.
• Young Lawyers Working Group — Chaired by Jennifer Smith, this working group promoted the 2016 Law Student Professionalism YouTube Contest at all the law schools in the state. This contest advances the professionalism expectations through role-playing videos to be used in training by the center. In addition, the working group supported the YLD Law Student Division in professionalism programs.
• Professionalism Symposium Working Group — The Professionalism Symposium Working Group, chaired by Whitney Untiedt, organized a multifaceted symposium, “Putting the ‘Pro’ in Professionalism,” held at the Hilton West Palm Beach on April 21. The symposium focused on discovering professionalism from within through core soft-skills training. Presenters included Past President Eugene Pettis, Professor Scott Rogers from the University of Miami College of Law, and Dr. Mimi Hull of Hull and Associates. The symposium was taped and will be available for purchase on The Florida Bar’s CLE page.
• Stakeholders Workshop Committee — This group was formed to address professionalism issues among Florida law school students and recent graduates. The vision of the committee is to conduct a workshop as an informal gathering of persons who work directly with law students in helping them develop, understand, or apply professionalism. The workshop is slated for this fall.
I personally express my gratitude to all the Standing Committee on Professionalism members and the center’s staff members for their hard work this year. Professionalism is and continues to be a major emphasis in Florida, and it is due to these hardworking committee members that we can make great strides in advancing and protecting the legal profession.
Tim Chinaris, Chair
Real Estate Certification
The Real Estate Certification Committee had a busy year. In addition to the chair, the members of the committee are Vice Chair Mary A. Robison, Diana Basta, Michael Chesser, Denis Cohrs, Robert Fleitas III, Jane Hunston, Charles Klug, Jr., Meredith E. Level, Lynn Lovejoy, and Richard A. Miller.
The committee had two conference-call meetings, four in-person meetings (at The Florida Bar offices in Tampa), and will hold one additional meeting in June to grade the 2017 exam.
The committee is charged with evaluating and approving lawyers who applied to become certified in real estate, to evaluate and approve existing board certified real estate lawyers for recertification (every five years), and to prepare and administer the annual certification exam. The latter process takes up the bulk of the committee’s time and effort. As dictated by the Florida Supreme Court, the evaluation of applicants necessarily involves the determination of whether an applicant meets the highest standards of professionalism and ethics. The committee strives to prepare the exam from year to year in a manner that best tests those standards.
The format of the exam may change slightly from year to year. The 2017 exam, in addition to the standard 45 multiple-choice questions, now has six mandatory short essay questions, a homestead essay question, and a longer transactional analysis law question.
The Real Estate Certification program was established in 1986 with the first class becoming board certified in 1987. There are currently 460 board certified lawyers, 20 of which (out of 53 exam takers) became certified in 2016, and 47 lawyers are anticipated to sit for the 2017 exam.
I thank the committee members for their hard work and dedication to the exam preparation and applicant review process. Additionally, I thank several former committee members who have served as exam pretesters: Debra Boyd, Howard Cohen, Josh Escoto, Lloyd Granet, Richard Grant, Michael Mirrington, Russell Robbins, John Soileau, and David Weisman. I also thank Karen Barbieri, BLSE examination consultant, for her counsel and exam expertise. Finally, the Real Estate Certification Committee owes a debt of gratitude to Carol Vaught, the Bar staff certification specialist, who has worked with the committee for a number of years and provides invaluable guidance, experience, and continuity.
Real estate has historically been the second largest area of certification in terms of number of individuals who are board certified by The Florida Bar. I encourage all experienced and eligible lawyers to apply for board certification. In addition to providing a designation that identifies a lawyer to the public and other lawyers that they have specialized knowledge, we find that the process enhances knowledge and capability. I also encourage board certified lawyers to apply to serve on the committee, as it provides invaluable exposure to other real estate law experts in a congenial and intellectual stimulating setting.
William S. Kramer, Chair
The Senior Lawyers Committee continues to work with attorneys of all ages and at all stages of their career paths, and this year has demonstrated that there is a core body of individuals who are ready, willing, and able to help create and foster new program initiatives to the entire membership of The Florida Bar. Free CLE offerings to the entire membership of the Bar continue through this committee.
SLC’s primary CLE programs have been held during the January meetings for the past two years, and this year, a decision was made to change things up and present the event during The Florida Bar’s spring meeting in Boca Raton. The location will allow greater access to attorneys in southern Florida who wish to attend the event in person.
This year, SLC has received multiple requests to address a multitude of ethics violations and complaints around the state. SLC proudly presents a panel with vast experience to address these issues from different perspectives. Vice chairs Michael Cohen, Bill Curphey, and Don Smith will anchor this year’s presentation on June 22 in Boca Raton by providing trends and practice points on issues regarding collaborative negotiations, recent trends by the Florida Supreme Court in ethics, discipline, and professionalism, and aging in the profession. These members of SLC have brought focused, relevant, and timely information to the members of the Bar, and SLC is extremely appreciative of their dedication.
SLC continues to work on issues related to many areas including the financial needs of legal practitioners at every level and every age; the impact of substance abuse, physical, and mental illness on the practice of law; guardianship needs across the state; pro bono opportunities; and an increase in available or needed benefits to members of The Florida Bar.
Members of SLC subcommittees have been researching both state and national trends on issues affecting the economic and ongoing educational needs of the members of the Bar and working to prepare new programs and seminars that can address training and other opportunities in those areas. Among those are the plans for social media platform development and mechanisms to assist with free programs to address the new technology CLE requirements in place. Watch for new communications from SLC in the future on a variety of issues that impact Florida lawyers of all ages, and ways that SLC can be of assistance to you in your legal careers.
The members of the Senior Lawyers’ Committee remain dedicated to promoting professionalism in every aspect of our practice as attorneys and counselors of law, as it is a duty of each and every one of us who has taken the oath as an attorney in Florida — a duty that we owe to our clients, our courts, our colleagues, our families, and ourselves. It is a duty never to be taken lightly. The depth and breadth of experience that abounds in the membership of SLC is here as a resource to each and every member of the Bar, and SLC welcomes lawyers of all ages and at all stages of their legal careers to stop by one of the seminars and become a member of SLC.
Our thanks go to each member of SLC, without whom we could not provide the programs and services we provide. Additionally, on behalf of the entire membership of SLC, I extend thanks to past Chair Marianne Trussell for her dedication and support of this committee. We are truly blessed to have so many tremendously talented folks working with us on this committee and look forward to sharing that wealth of information and experience with the members of the Bar in new and helpful ways.
If you have any questions or are interested in joining the Senior Lawyers Committee, please send an email to our incomparable Florida Bar staff liaison, Lani Fraser, at
[email protected] She will provide information regarding upcoming events and access to the programs provided by the Senior Lawyers Committee. We welcome your interest and participation with SLC and look forward to another terrific year of progress.
Linda A. McCullough, Chair
Small Claims Rules
The Small Claims Rules Committee had another successful year for the 2016-2017 term. It has been a pleasure to serve as chair of this committee, and I look forward to remaining on the committee after my term has ended. The committee spent its focus during this year on starting to look at old and outdated language as it starts a new three-year cycle.
A subcommittee has spent the better part of the year reviewing the rules to determine whether the references were accurate, clarify any conflicts between the rules, and whether there were rules that were no longer necessary in current times.
The committee has been active this term in providing comments on other matters. Earlier this year, the committee commented and opposed the proposed amendment to Florida Rule of Judicial Administration 2.514 regarding computation of time for documents served via email. It recently filed a comment on the proposed amendments to the Florida Rules of Judicial Administration.
A subcommittee recommended, and the full committee approved, standard suggested forms to be included in the forms section of the rules. These forms will be included in our next cycle report. The forms are defendant’s motion for motion to continue, defendant’s motion to invoke the rules of civil procedure, and a general format for a defendant’s motion.
The Small Claims Rules Committee also receives requests from members of the community with questions or requested changes to the rules. This term has been more active than usual in these types of requests and the committee members have been wonderful in thoroughly evaluating and responding to these requests.
I thank each member of the Small Claims Rules Committee for their hard work and dedication over the last year, especially Michael Debski (vice chair and RJA liaison), Amanda Duffy (vice chair), and Brooke Teal (secretary). This committee would not get anything accomplished without its Florida Bar liaison, Heather Telfer. She keeps us organized, makes certain we get meetings scheduled when necessary, and does all the heavy lifting behind the scenes.
I encourage all members of The Florida Bar to get involved in committee work…it is where real change happens.
Alison Verges Walters, Chair
State and Federal Government and Administrative Practice
Currently, there are 93 board certified lawyers in state and federal government and administrative practice. This comprises a broad practice area that includes state and federal rulemaking, administrative adjudication, and all such agency interaction along with state and federal government practices and practice areas. The area, and as such the examination, require a thorough working knowledge of both state and federal administrative procedure acts, as well as civil actions involving state and federal government. As with many other areas of board certification, certification in this area is only available for those qualified applicants who pass an examination, meet the minimum practice requirements, peer review and CLE requirements ( see Rule 6-28.3). This year’s examination took place May 11.
In 2016, there were six applicants, all of whom sat for the exam, and of which two received a passing score. A number of certified attorneys are scheduled for recertification in the current year.
The committee this year focused on enhancing the examination with new questions and implemented a more streamlined method of assigning questions based on subject matter. These additions will vastly increase the examination questions bank. Also, a number of sample questions were selected to post on The Florida Bar website for prospective examinees.
The 2016-17 committee consisted of Colin Mark Roopnarine, chair; Timothy Atkinson, vice chair; Martha Harrell Chumbler; Thomas Albert Delegal III; Kenneth Hayman; Judge James Hardin Peterson III; Michael Cooke; Patricia Denise Smith; and Francine Marie Ffolkes. We were fortunate to have two excellent, professional, and highly capable liaisons, Maritza McGill and Allison Armour, without whose assistance our work would not have been of the highest quality. Their hard work and dedication are greatly appreciated. Many thanks also to the committee members who worked on a number of matters without the slightest hesitation.
If you have any questions about certification in the area of state and federal government and administrative practice, please visit The Florida Bar’s website or call Allison Armour at (850) 561-3143.
Colin Mark Roopnarine, Chair
Student Education and Admissions to the Bar
The Student Education and Admissions to the Bar Committee (SEABC) undertook an ambitious agenda this past year. The year began with a CLE/panel discussion at annual convention, “The Course Revisited.” Panelists Debra Moss Curtis, chair of the Legal Education Committee; Michelle Gavagni, executive director of the Florida Board of Bar Examiners; and John Berry, director of the Florida Bar Legal Division, presented and expounded upon the findings of the Vision 2016 Commissions findings on the state of the legal profession. Using the findings of the Vision 2016 Commission, SEABC set forth to explore their concerns with three initiatives:
1) Establish a Law School Liaison Subcommittee. In order to better accomplish our goals, a Law School Liaison Subcommittee was formed and tasked with reaching out to all law schools in the state. Subcommittee members will discuss with the deans or administrators the concerns of the Vision 2016 Commission and to begin a relationship so that the Bar may better assist the schools and that the schools may better know the Bar’s interest in helping students transition to the practice of law. This subcommittee would also gather information on curriculum decisions, programs that are in place that may assist students at other law schools in the state, and on any trends that may develop in successful students/bar exam takers/practicing attorneys across the law schools. Numerous SEABC members have volunteered their valuable time to this project, and without them, we would not be able to launch this subcommittee successfully.
2) Develop at Student Oath of Attorney. In keeping with Vision 2016’s desire to increase professional identity and reinforce ethics, SEABC leadership has discussed developing a “student oath of attorney” for law students to be given at the beginning of their law school careers, and as often as their law school deems appropriate afterwards. Although participation by the law schools would be voluntary, the committee’s hope is a commitment from all law schools in the state. After reviewing feedback from all law schools gathered by the liaison subcommittee, the oath will be unveiled at the annual convention in June.
3) Develop a Board of Visitors to Law Schools. Keeping with Vision 2016’s concern regarding the cost of law schools and students coming out of law schools in debt, but perhaps not ready to practice law, the committee has discussed and evaluated what we can do in this state to prevent situations such as that at Charlotte Law School. A potential solution would be the establishment of a “board of visitors,” which would meet with students at some point after their first year in school with the goal of assisting students in having an honest assessment of their chances of success on the bar exam and in the profession and, for those students falling behind, offer support and mentorship. The liaison subcommittee will present its findings on the willingness of law schools to establish such a program. In all likelihood, this will launch as a pilot program in the next year, with expansion coming soon after.
The Student Education and Admissions to the Bar Committee wraps up another great year. I genuinely thank all of our seminar participants and committee members for their hard work and dedication. A special thanks goes to those members who have gone above and beyond, including Vice Chair Doug Bates, Past Chair Richard Dellinger, Jason Silver, Annika Ashton, and others who have gone above and beyond this year.
Diego M. Madrigal III, Chair
Tax Law Certification
As the 2016-2017 chair of the Tax Law Certification Committee, I am pleased to provide this report for the committee. Members of the committee are responsible for overseeing the process of certifying attorneys as tax law specialists recognized by The Florida Bar, for reviewing applications of current certified attorneys seeking recertification at the expiration of their terms, and for reviewing and approving certain continuing legal education courses as qualified for tax law certification credit. The certification process consists of four requirements: an active practice in tax law; excellent peer review references; having sufficient continuing legal education in tax law; and passing the certification examination.
The committee is comprised of nine board certified tax law attorneys who work throughout the state. The committee first met telephonically in July 2016 to begin drafting the 2017 examination and to review initial and recertification applications. Over the next several months, the committee worked to continue the prior committees’ improvement of the quality of the certification exam to meet the high standards expected by the committee and The Florida Bar.
The 2017 exam is comprised of two long-answer essay questions and 10 short-answer essay questions that address procedural and substantive law. For the various subjects, the committee updated questions from previous examinations, as well as created new current questions to adapt to changing law. The committee seeks to ensure the exam is a fair but rigorous test of an applicant’s expertise. On March 10, in Tampa, applicants took the exam in two three-hour blocks and will be advised of their results by June 1.
At its final meeting, the committee will grade the 2017 examination on an anonymous basis, with each examinee identified to the committee only by a number assigned by Florida Bar staff. Those attorneys who meet all requirements for a board certified tax law attorney and achieve a passing score on the examination will earn the designation as a tax law board certified specialist.
Of the more than 100,000 members of The Florida Bar, 217 are currently board certified in tax law. Seven attorneys sat for the 2017 tax law certification exam. The committee also reviewed 21 recertification applications.
The committee is grateful to the lawyers who participate in the confidential peer review process. Without candid commentary from applicants’ peers, the committee’s ability to properly review applicants’ qualifications would be severely curtailed. The committee emphasizes to Bar members and judicial officers that commentary is confidential and will not be divulged to any applicant.
It has been an honor for me to serve as chair of the committee this year. This year’s committee included Vice Chair William Swindle, Tampa; Harris Bonnette, Jacksonville; Erin Houck-Toll, Fort Myers; Donna Litman, Miami; Lee Osiason, Miami; Richard Shapack, Bloomfield Hills, Michigan; and Robert Trudeau, Jacksonville. We also appreciate the hard work of Maritza McGill.
Benjamin A. Jablow, Chair
Traffic Court Rules
The Traffic Court Rules Committee convened at the midyear meeting on January 26 and made significant progress in finalizing and approving multiple amendments to the rules. The committee continued its ongoing mission to modernize, clarify, and streamline the language in the traffic rules so that they are more user-friendly for the layperson, as well as legal practitioners. The approved amendments also take into consideration changes in technology in the clerk’s office and court system, where electronic filing and other paperless modalities are now being utilized. The following are some of the highlights of the extensive amendments that have been approved for this cycle.
Amendments that clarified and streamlined the rule language were approved for Rule 6.510 (determination that infraction was not committed; bond refunded); Rule 6.520 (effect of granting new hearing); Rule 6.530 (imposition of penalty before or after motion filed); Rule 6.550 (official may grant new hearing); and Rule 6.080 (improper disposition of traffic ticket).
Rule 6.500 (pronouncement and entry of penalty: penalizing official) was renamed “disposition” and significantly pared down so that upon disposition, the clerk or official must enter a notation on the docket, and the disposition must be pronounced in open court, issued in writing, and docketed.
Rule 6.560 (conviction of traffic infraction) was streamlined to read that a defendant’s admission or an official’s determination that the defendant committed an infraction constitutes a conviction as that term is used in F.S. Chs. 318 and 322, and F.S. §943.25, unless the official withheld adjudication as permitted by law. Elections when adjudication is withheld do not constitute convictions but require collection of assessments under F.S. §943.25.
Rule 6.580 (completion of driver school; conditions) was eliminated. Rule 6.590 (now called failure to complete driver improvement course; reinstatement of driver license) had some language clarification and added language that if the defendant appears before the clerk after the department suspends the driver’s license, the clerk must schedule a hearing for the defendant before the official, and that at the hearing, the official must adjudicate the defendant guilty of the infraction and must assess all applicable civil penalties. The official may require the defendant to attend a driver improvement course. After the defendant satisfies all penalties, the clerk must give the defendant a form supplied by the department, etc.
Rule 6.600 (failure to appear or pay civil penalty; reinstatement of driver’s license) now reads that if no mandatory hearing is required, and the defendant has been cited but fails to pay the civil penalty or appear, the clerk must send the department notice of such failure as required by F.S. §318.15(1) (eliminating the five-days language). In subdivision (b), the language was streamlined to state simply that the clerk must notify the department (eliminating language about the form to be supplied by the department).
Rule 6.610 (failure to satisfy penalty imposed after a hearing; reinstatement of driver license) also now simply states that the clerk must send notice of the failure (to satisfy the penalty) to the department and eliminates the five-day timeframe for the clerk to notify the department.
Rule 6.620 (failure to appear for mandatory hearing; reinstatement of driver’s license) similarly eliminates the language giving the clerk five days to notice the department after the failure to comply.
The subdivisions in Rule 6.630 (civil traffic infraction hearing officer program: traffic hearing officers) were re-lettered with the elimination of subdivision (b) (participation), (i) (hours), and (k) (implementation of program). In subdivision (a) (eligibility of county), language was added that the chief judge makes the decision on whether to participate in the program, and that any county electing to participated in the program shall be subject to the supervision of the Supreme Court.
Thanks to everyone on the committee and various subcommittees for their continuing hard work. Special thanks to Florida Bar liaison, Heather Telfer, for her contributions and assistance.
Doricia Miller Rivas, Chair
Unlicensed Practice of Law
The committee had a busy year addressing formal advisory opinion requests. Under Rule 10-9 of the Rules Regulating The Florida Bar, an individual or organization seeking guidance as to the applicability of the state’s prohibitions against the unlicensed practice of law may request a formal advisory opinion from the standing committee. After holding a public hearing to receive input from interested parties, the standing committee, at its discretion, may file a proposed formal advisory with the Florida Supreme Court containing its interpretation of the law. The court then reviews the proposed opinion and can approve, modify, or disapprove the advisory opinion with the ensuing opinion having the force and effect of an order of the court.
In January, the standing committee held a public hearing on a Goldberg request for formal advisory opinion. The petitioner is a defendant in an interpleader action filed by the Clerk of the Circuit Court of Manatee County (Case No. 2014 CA 3155), who alleged in his response that a co-defendant asserting a claim to surplus funds from a tax deed sale engaged in the unlicensed practice of law. The circuit court, citing Goldberg, found that it did not have jurisdiction over the unlicensed practice of law claims and stayed the case pending a determination by the Florida Supreme Court whether the conduct constitutes the unlicensed practice of law. The court, in Goldberg v. Merrill Lynch Credit Corp., 35 So. 2d 905 (Fla. 2010), held that the Standing Committee must issue a formal advisory opinion in such circumstances. The Standing Committee directed staff to prepare a draft formal advisory opinion to be reviewed and approved by the committee and filed with the court.
The Standing Committee and The Florida Bar UPL staff continued their efforts to protect the public from UPL. We obtained injunctions from the Florida Supreme Court against individuals and businesses for engaging in the unlicensed practice of law by holding themselves out as attorneys and providing legal services in immigration, family law, and foreclosure assistance, and loan modification matters.
We continue to receive complaints against out-of-state licensed lawyers for assisting individuals with Florida legal issues. However, under the MJP (multijurisdictional practice of law) rules, out-of-state lawyers may provide limited legal services in Florida on a temporary basis under certain circumstances. The rules also subject out-of-state lawyers to the disciplinary authority of the Florida Supreme Court while providing those legal services. Thus, while out-of-state lawyers may not be engaged in the unlicensed practice of law if their activity falls within the rule, they can be disciplined for unethical conduct. The MJP rules also require out-of-state lawyers who appear in a Florida court or arbitration to file a copy of their pro hac vice motion and verified statement, respectively, with The Florida Bar. Anyone wishing to check whether opposing counsel has complied with these filing requirements may do so by contacting the UPL Department at (850) 561-5840.
As we conclude this year, I thank all the public members and lawyers on the committee for their dedicated service. I especially recognize the following members for their six years of service, who have, thus, reached their term limits: Jeffrey M. Kolokoff, Stanley M. Giannet, David Lanaux, Gino Martone, and Nancy A. Murphy. The committee gives a special thanks to the circuit committees: We know you are the unrecognized heart and soul of UPL enforcement for the court. All committee members who contribute their valuable time and energy in protecting the public, are especially appreciated.
I also thank and recognize Will Spillias, UPL director; Jeffrey Picker, assistant UPL director; and UPL branch counsels, Jacquelyn Needelman (Miami), Ali Vazquez (Ft. Lauderdale), Ghunise Coaxum (Orlando), Maria Torres (Tampa), and their excellent support staff. These dedicated and hardworking public servants do an incredible job year after year. I also welcome and thank the newest addition to the UPL department, Karen Dexter, the new Tallahassee branch counsel, who replaces longtime branch counsel, Monica Armster Rainge, who left in January to pursue other professional opportunities. Welcome aboard, Karen.
It has been my sincere honor to serve on the committee for the last six years, and chair the committee for the past two years; I am extremely grateful to everyone with whom I have had the pleasure to work.
Jeffrey M. Kolokoff, Chair
Voluntary Bar Liaison
The Florida Bar Voluntary Bar Liaison Committee (VBLC) serves as a liaison between The Florida Bar and the voluntary bar associations throughout the state. The mission of the VBLC is to improve communication between The Florida Bar and voluntary bar associations, coordinate programs of The Florida Bar, such as the annual Voluntary Bar Leaders Conference, provide a resource and information bank of activities and the concerns of voluntary bar associations, and advise the Board of Governors regarding interpretation of The Florida Bar programs to voluntary bar associations and individual members.
Attorneys and association executive directors of more than 20 local bar associations serve as 2016-2017 VBLC members. The Florida Bar leadership is continually supportive of voluntary bar associations and their activities. President William J. Schifino, Jr., and President-elect Michael J. Higer have taken an active interest in the VBLC. Both Schifino and Higer, along with their predecessors, addressed the participants of the annual conference and have spoken at numerous local voluntary bar associations throughout the year, emphasizing the important role voluntary bar associations play within the Florida legal community. The committee continues to work with Board of Governors Liaison Lorna Brown-Burton, as well as Florida Bar staff Liaison Jeff Doran. Both continue the tradition of active support for the committee and voluntary bar organizations throughout the state.
• Voluntary Bar Leaders Conference — Committee members work year-round to plan the Voluntary Bar Leaders Conference in July every year. The 2016 conference was held July 15-16 at the Ritz-Carlton Golf Resort in Naples and was hosted by the Collier County Bar Association. The theme of the conference was “Teeing it Up for a Winning Year in Your Bar Association.” The committee was also privileged to host the fellows of the Bar’s Leadership Academy class, who participated in several of the conference events with attendees. The conference conveyed the VBLC’s goal to provide practical and useful advice to the voluntary bar leaders across the state by offering break-out sessions on tax issues, CLE programs, membership recruitment and retention, revenue generation, and many other pressing issues affecting both staffed and nonstaffed bar associations. Along with opening remarks from Bar President Bill Schifino, attendees were treated to a speech by Nora Riva Bergman: “Don’t be a Duffer! Play a Better Game: Skills You Need to Build Your Championship Team.” The conference was chaired by E. Ashley Hardee.
The committee is very appreciative of all who donated their time and resources in organizing the very successful conference, particularly the sponsors who helped underwrite the conference and offset costs for attendees. The committee is also very appreciative of the support the Young Lawyers Division of The Florida Bar with its generous provision of scholarships for members of the division to attend the conference. The YLD is providing scholarships again for the 2017 conference. Information on the scholarships can be found at www.floridabar.org/voluntarybars.
Conference attendees provided the committee with positive feedback at the close of the conference and left energized and excited to implement the myriad of ideas and suggestions offered by the panelists and fellow attendees. Following the success of the 2016 conference, plans were made to hold the 2017 Voluntary Bar Leaders Conference at Disney’s Boardwalk Inn/Walt Disney World Resort in Orlando, July 14-15. The 2017 conference host association is the Orange County Bar Association and the theme is “Creating a Magical Year for Your Bar Association.” Registration for the conference has recently opened and may be found on the Voluntary Bar Center website, www.floridabar.org/voluntarybars.
• Lawyer Referral Services — The committee met with several members of the Board of Governors to continue addressing the issues surrounding a possible statewide lawyer referral service portal. The issue of a lawyer referral service has been raised in response to the Access to Justice Commission concerns for legal services for the poor, ever-changing technology and the increasing availability of online legal services, and the YLD’s concerns over employment for young lawyers. The committee expressed the importance of its continued support of all voluntary bars and their existing local lawyer referral services. Should a statewide lawyer referral service portal be implemented, the committee will work with The Florida Bar toward a successful, efficient, timely, and cost-effective portal that would benefit members of The Florida Bar, voluntary bars, and anyone seeking legal assistance in Florida.
The VBLC continues to strive to fulfill its mission each year by providing topical and quality programs for attendees of the Voluntary Bar Leaders Conference, improving communication between voluntary bar associations and The Florida Bar, and serving as a resource of practical, helpful information to voluntary bar associations. The committee also strives to strengthen relationships with The Florida Bar Foundation and the Young Lawyers Division. With full staff and the financial support of The Florida Bar, the VBLC will continue to serve as a viable link between The Florida Bar and the voluntary bar associations while providing support for the valuable efforts of attorneys.
My sincere thanks and appreciation to the members and The Florida Bar staff who worked so hard to ensure that the VBLC had a productive year and met its goals.
Sarah Cortvriend, Chair
Wills, Trusts and Estates Certification
The Wills, Trusts and Estates Law Certification Committee is responsible for overseeing the process of certifying attorneys as wills, trusts, and estates law specialists recognized by The Florida Bar. It is also responsible for reviewing the applications of currently certified attorneys seeking recertification at the expiration of their terms; certified attorneys must be recertified every five years. Of the more than 100,000 members of The Florida Bar, there are currently only 324 wills, trusts, and estates board certified attorneys
The initial certification process consists of three requirements: 1) the active practice law substantially devoted to the area of wills, trusts, and estates; 2) excellent peer review references; and 3) passage of the certification exam. The recertification process consists of two of those initial three requirements: 1) the active practice law substantially devoted to the area of wills, trusts, and estates; and 2) excellent peer review references.
As chair of the committee, it is my honor to report another excellent year of overseeing the certification and recertification of attorneys in the area of wills, trusts, and estates. The committee is comprised of nine attorneys who are specialists in wills, trusts, and estates and who span the state of Florida geographically from Pensacola to Jacksonville to Naples and all points in between. The committee had four in-person meetings, as well as several conference calls, during which it worked diligently at the process of reviewing the 40 applications for certification and 91 applications for recertification, as well as drafting and perfecting the 2017 wills, trusts, and estates certification exam. That exam was held on May 12. The committee will grade the exam, which consists of essays and multiple choice portions, and the examinees will be apprised of their results by the beginning of August. The 2018 certification exam will be held on May 11, 2018.
Our committee is grateful to the lawyers and judges who served the process of peer review, and to the board certified attorneys who assisted us by giving their time and intellectual firepower as pretesters.
It has been a privilege to work with The Florida Bar staff, particularly our liaison, Laurinda Barbers, who keeps the wheels of our committee running. It has also been an absolute honor to serve with the hardworking members of the committee: Vice Chair Daniel Medina, Past Chair Norma Stanley, Gary Leuchtman, Curtis Cassner, L. Howard Payne, Beverly Furtick, Chad Callahan III, and Guy Emerich.
Duane Pinnock, Chair