Annual Reports of Committees of The Florida Bar
Adoption Law Certification
This committee certifies attorneys whose practice of law deals with the complexities and legalities of interstate and intrastate adoption placements, including civil controversies arising from the termination of the biological parents’ parental rights and adoptive placements. Certification in this field is the first of its kind in the country and was approved by the Florida Supreme Court in 2009. The Florida Bar, through the oversight of the Board of Legal Specialization and Education, has certified 24 attorneys as Florida Bar board-certified adoption attorneys.
What a great year we had serving on this committee. During the 2014-15 year, the committee met to review applications for certification and to prepare the examination. The applicant review process includes a determination as to whether an applicant meets the criteria for substantial involvement in the practice of adoption and also demonstrates the highest standards of professionalism and ethics. This incorporates a comprehensive peer review process. All submissions are carefully considered by the committee in the evaluation of each applicant. The committee drafted, reviewed, and prepared the examination for certification. This year, we were directed to submit our questions to pre-testers and received overwhelming support from board certified attorneys who have taken the time to review and make constructive comments on the questions presented. One applicant applied this 2014-2015 year, however, although qualified, declined to take the examination. The committee set up informational booths at various adoption law CLE events to increase awareness of the value and benefits of board certification. At a recent CLE seminar, 12 attorneys showed an interest in board certification in adoption and we sincerely hope each follows through to completion.
Although this committee is one of the smaller certification areas, our area represents matters very personal, private, and emotionally charged. Our purpose is to educate and protect individuals in the adoption process. carefully screening applicants for board certification, we hope to make adoption placements safe and permanent.
The committee met each month, twice in person, and other months via a “join me” service provided by committee member Amy Hickman, which we greatly appreciated. This year, we had an opportunity to review the standards for substantial involvement and to refine the rules with the assistance of Bar staff and guidance from the BLSE. The committee discussed and voted to propose a new area for certification that provides for certification for attorneys who not only have expertise in adoption, but also have substantial involvement and expertise in areas such as assisted reproduction, surrogacy, and reproductive law. Members of our committee will continue to meet monthly to discuss the procedures that would enable the creation of such a certification area for qualified attorneys.
Members of the Adoption Law Certification Committee consist of Mary Ann Scherer, chair, Ft. Lauderdale; Danelle Barksdale, vice chair, Tampa; Susan Stockham, Sarasota; Amy U. Hickman, Boynton Beach; Ellen M. Kaplan, Coral Springs; Anthony B. Marchese, Tampa; Michael A. Shorstein, Jacksonville; Jeanne T. Tate, Tampa; and Michele Hausmann, Boynton Beach. I thank each committee member for their significant commitment of time, energy, and thought in serving on this committee. It has been a pleasure to be chair and to have such an energetic, passionate group who always put children first.
On behalf of the entire committee, I express our collective appreciation for the knowledge, skill, and experience of Vicki Simmons and Maritza McGill, our excellent Bar staff liaisons, who worked with the committee this year. We thank them for providing wisdom, insight, expertise, and support for each of our meetings, and also to Scot Rubin, our BLSE liaison, for providing key advice as to Bar policies and procedures.
I extend an invitation to all eligible attorneys to apply for certification. There is no better way for an adoption attorney to advance his or her skills, professionalism, and ability to network in the practice of adoption law than by certification, which assists in raising public awareness of this area of law.
Mary Ann Scherer, Chair
Admiralty and Maritime Law
The Admiralty and Maritime Law Committee held its annual meeting in June 2014 at the Gaylord Palms Resort & Convention Center, Kissimmee, and, in a break with tradition, held its inter meeting in January in Coral Gables at the University of Miami as a joint meeting with the ABA/Torts and Insurance Practice Section, Admiralty Law Committee, providing its members at both meetings with CLE credits and advanced credit toward certification. The committee reports that both meetings were well attended by the majority of committee members appearing in person or via telephone. The committee is appreciative of The Florida Bar leadership recognizing the importance of these outreach efforts with other organizations.
The June 2014 meeting covered a legislative update on our new bills pending final approval involving different aspects of vessel operation and removal of derelict vessels; a case study on small craft pollution discharge in dealing with the USCG, the Florida Fish and Wildlife Conservation Commission, and the Florida DEP; and a presentation of Judge John R. Brown Admiralty Moot Court Competition Hypothetical discussing the interpretation of the Longshore and Harborworkers Compensation Act and the need for uniformity relative to the determination of maritime “situs” and “status” prerequisite to coverage under the LHWCA.
The committee continues its work within the subcommittee devoted to the presentation of a yearly maritime law seminar, promoting ethics and professionalism in the practice of admiralty and maritime law, and reviving the Florida Maritime Law Practice Manual. These efforts remain a priority for the coming year.
In keeping with our committee goals, we have focused our outreach to partner and co-market the committee with other maritime law organizations. Our desire is to have the committee recognized as the thought leader in the development of admiralty and maritime law, not only within Florida, but also nationally. We are pleased that various members, including past chairs, Michael McLeod, Matthew Valcourt, as well as Patricia Olney, who headed the initiative with the Federal Bar Association, Admiralty Law Section, all helped to lead in its August 2014 seminar in Ft. Lauderdale. Through their efforts, we were able to offer CLE credits along with credits toward certification to the attenders. The committee continues its efforts to encourage the participation of members of the maritime industry in the committee, which provides a practical component to the meetings. The inclusion of maritime industry representatives also fosters a closer relationship between the maritime bar and the community it serves.
The committee’s January 2015 meeting was a first of its kind, with the committee meeting away from the site of The Florida Bar general meeting. The committee appreciates of the efforts of committee member, Robert Gardana, also serving as vice chair of the ABA/TIPS Admiralty Law Committee, in leading the effort of this joint committee venture. The joint meeting addressed substantive topics within the framework of a vessel arrest symposium, covering the perspective of the arrest from the U.S. Marshal’s office; the effective use of substitute custodian; and updates on the ethics, procedural rules, and jurisdictional issues involving vessel arrests. In addition to being well attended by admiralty and maritime law practitioners, the meeting was well attended by law students as well from the South Florida area. all reports, this joint venture was a great success and offered continued exposure of the committee.
We continued these joint efforts with another seminar with the ABA/TIPS Admiralty Law Committee and the St. Thomas University Law School Maritime Law Society, April 10, at St. Thomas University Law School in Miami Gardens. The seminar was an open forum discussing McBride v. Estis Well Service, LLC, which is pending certiorari before the U. S. Supreme Court, and the availability of punitive damages in unseaworthiness injury, death, and zone of danger cases. Many thanks to committee member and St. Thomas University Law School professor, Attilio Costabel, in coordinating the joint seminar.
The committee is excited to move into 2015 with renewed momentum and will continue to allow members to appear via teleconference for CLE and meetings. We further invite interested members of the Bar to attend meetings and apply for committee membership.
Lindsey Brock, Chair
Admiralty and Maritime Law Certification
The Admiralty and Maritime Law Certification Committee is responsible for certifying attorneys in the diverse and specialized field of admiralty and maritime law. Florida was the first state to provide for certification in this field in 1996. As the committee enters its 20th year of service to The Florida Bar and its members, there are currently 62 certified admiralty and maritime lawyers in Florida. This represents a significant portion of the lawyers who are members of The Florida Bar’s Admiralty Law Committee. Nevertheless, the committee is determined to increase the number of board certified lawyers to more than 75 as soon as possible. Three applicants were approved to sit for the 2015 examination.
During 2014-15 year, the committee met several times in person and by teleconference to review applicants for certification and recertification; prepare and grade the certification examination; review and revise the Admiralty Standing Committee Policies; and review and approve CLE requests of certified lawyers. Several committee members attended the Board Certification Leadership Conference.
The committee drafted, revised, and finalized the certification examination and the model answers to comply with the BLSE guidelines and to comport with changes in the law. The exam consists of two parts: 100 mandatory multiple-choice questions and six different fact patterns involving various specialties within the field. Of the six fact patterns, two are mandatory and an examinee must select and answer two of the remaining four. The exam is designed to test the applicant’s knowledge of admiralty procedure and maritime law as it relates to both traditional maritime law commerce and cruise and recreational boating, which are prevalent in Florida.
The committee continues to explore new and creative ideas to reach potential board certification applicants for this specialized area of the law, including the promotion of certification at various maritime CLE events, such as the meetings of the Southeastern Admiralty Law Institute, The Maritime Law Association of the United States, and The Florida Bar Admiralty Law Committee. Staff and committee members attended the Ft. Lauderdale Mariner’s Club Seminar on October 29, 2014; the Vessel Arrest Symposium sponsored by the ABA TIPS Admiralty and Maritime Law Committee and The Florida Bar Admiralty Law Committee at the University of Miami on January 21, 2015; and an Open Forum on the Availability of Punitive Damages in Unseaworthiness Claims sponsored by the ABA/TIPS Admiralty and Maritime Law Committee, The Florida Bar Admiralty Law Committee, and the St. Thomas University Law School Maritime Law Society at St. Thomas University on April 10.
The minimum standards for admiralty and maritime law certification, provided in Rule 6-17.3, include practice of law for at least five years, or four years with an LL.M. in admiralty law, ocean law, maritime law, or a related field; substantial involvement in the practice of admiralty and maritime law — 35 percent or more — during each of the three years immediately preceding application; 50 hours of approved admiralty and maritime certification CLE in the three years immediately preceding application; peer-review; and the written examination.
If you are considering board certification in admiralty and maritime law, applications must be postmarked by August 31 for the following year’s exam. Standards, policies, applications, and staff contacts are available online at floridabar.org/certification. Certification provides tremendous benefits to the public and profession due to the novel and unique aspects of maritime law. Our admiralty and maritime law certification program has served as the model for other states.
The committee expresses its sincere appreciation to all of the attorneys and judges who responded to the committee’s requests for submission of peer review and evidence of substantial involvement in this area of practice. All submissions were carefully considered by the committee in the evaluation of each applicant for certification.
I thank all of our committee members for their devoted service during this fiscal year: Teresa Bennett, Mark Buhler, Raul Chacon, Barbara Cook, Mark Ercolin, Jody Foster, Richard McAlpin, and Michelle Otero-Valdes. On behalf of the entire committee, I express our collective appreciation for the knowledge, skill, and experience of Rachel Moulton and Lisa Kustel, our excellent Bar staff liaisons. They were indispensable to the committee, providing expertise, insight, support, and wisdom for our meetings. They also advised us as to Bar policies and procedures and enabled us to complete our tasks efficiently and effectively.
I invite all eligible admiralty and maritime lawyers to apply for certification. There is no better way for a maritime practitioner to advance his or her skills, professionalism, and ability to network in this exciting and expanding area of practice in Florida. It is time to become a board certified specialist in admiralty and maritime law.
Allan R. Kelley, Chair
The Standing Committee on Advertising is responsible for advising members of The Florida Bar on permissible advertising and marketing practices. The committee, which generally meets monthly, 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, which is regularly updated by Bar staff and is posted on the Bar’s website for easy access by Bar members. The Handbook reflects important changes that have occurred. The Handbook and other information addressed in this report are available on the Bar’s website at www.floridabar.org under “Lawyer Regulation” then “Advertising Rules.”
This was a busy year for the Standing Committee on Advertising. In addition to reviewing advertisements filed by members of The Florida Bar, the committee responded to changes made by the Board of Governors regarding advertising. The Board of Governors adopted a new policy interpreting Rule 4-7.19 regarding filing and review of lawyer advertisements.
• New Policy Regarding Filing — The Board of Governors adopted a new policy that any change of any kind to an advertisement renders the advertisement a new advertisement with a new filing fee of $150 per timely filed advertisement and $250 per untimely filed advertisement. The only exception when no additional fee will be charged is a revision to an existing advertisement that is solely to comply with a Bar opinion that the advertisement does not comply with the lawyer advertising rules. Any change includes, but is not limited to, any change to wording, illustrations, photographs, typographical marks, layout, or color scheme. The committee updated the Handbook on Lawyer Advertising and Solicitation to reflect the changes and provided guidance to staff regarding interpretation of the policy change.
• 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, entitled “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 would like to thank each of our committee members: Alvin V. Alsobrook, Carolyn Bell, Connie Reeves Bookman, Sammy Michael Cacciatore, Michael John Faehner, and Anthony J. Jackson.
Finally, the committee thanks our board liaison, Carl B. Schwait, DEUP division director Mary Ellen Bateman, 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 Diane Lee and Louise Averette, and program assistant Faye B. Miller, 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.
Melvin B. Wright, Chair
The Animal Law Committee (ALC) had an unprecedented year of firsts in 2014-2015. The success this year can be attributed to the hard work of the ALC’s members and leadership. I especially thank our Board of Governors liaison, Renee Thompson, and our new program administrator, Dixey Teel, for their dedication and support for the ALC. I also thank ALC Vice Chairs Gil Panzer, Sarah Taitt, Jennifer Dietz, and Gregg Morton, and subcommittee Chairs Aleksandra Sikorksa, Phyllis Coleman, and Avery Chapman for their hard work.
The year began with our annual meeting in June 2014 and a celebration of the ALC’s 10th anniversary as a substantive law committee. As part of the meeting and reception, the ALC announced the winners of annual outstanding service awards, which encourage the practice and study of animal law in Florida and further the purpose and goals of the ALC. The winners of the awards were ALC Vice Chair and Chair-designate Gil Panzer, and Nova Southeastern Law School student Yanae Barroso.
The ALC also presented another successful CLE seminar at the 2014 Annual Meeting, titled Animal Law in the Sunshine. The well-attended seminar featured presentations on recent animal law legislation in the state, local government issues related to animals, the links between violence against animals and violence against humans, ethical issues related to animal law, homeowner and real estate issues involving animals, and the use of service and therapy dogs in the courtroom. Thank you, Tim Martin, for organizing the 2014 CLE. The 2015 CLE agenda is set and we are pleased to have a number of excellent speakers, including members of the Florida Legislature, who will provide their expertise and experience with the legislative session. As of the date of this report, the 2015 Legislature has more than 28 bills relating to animal law. The ALC is also welcoming the former chair of the ABA’s Animal Law Committee and author of a number of books about practicing animal law, Yolanda Eisenstein. Given the increasing interest in animal law, we hope to see many new faces in the crowd in Boca Raton. We would like to thank Aleksandra Sikorska for putting together what promises to be our best seminar yet. Speaking of CLE seminars, this year will mark the ALC’s first foray into presenting a webinar. The chair of our newly created Equine Law Subcommittee, Avery Chapman, and other members of the ALC’s Equine Law Subcommittee, will be speaking on legal issues surrounding the horse industry in Florida later this year. The ALC looks forward to pursuing partnerships with other sections and committees to present additional CLE courses throughout the year.
Our law school outreach continues to be one of our most important and fruitful endeavors. This marked the second year that the ALC partnered with Florida State College of Law’s Student Animal Legal Defense Fund and Tallahassee-based not-for-profit Pets Ad Litem, Inc., for an annual Student Animal Law Legal Writing Competition. The competition is open to all Florida law students and recent grads. In 2014, the contest judges picked a winning student and runner up, both from Nova Southeastern Law School. The third annual competition is already underway with student essays due no later than June 15.
Recognizing the need and desire for more information about the developments in animal law in Florida, the ALC expanded the frequency and number of publications considerably. In addition to the ALC’s biannual newsletter, the publications subcommittee began preparing monthly eUpdates to our members and other interested individuals who had signed up to receive updates. I thank Laura Triplett, David Brunell, and Gretchen Myers for their hard work at creating the monthly eUpdates. The ALC is also pleased to announce that its proposal to create a Facebook and LinkedIn accounts was recently approved. The ALC is looking forward to utilizing social media to expand its reach.
One of the most exciting developments this year, and a true sign that animal law is entering the mainstream, was The Florida Bar Journal ’s decision to publish a special issue dedicated to animal law, titled Animal Law in Florida. The issue came out in November 2014 and generated considerable positive feedback for the ALC. In addition to an article about animal law generally, the scope of the special issue covered a wide variety of topics, including pet trusts, the creation of an integrated animal court, equine lien laws, criminal and civil prosecution of animal abuse, and dog bite cases. I thank Cheryle Dodd and Melinda Melendez with The Florida Bar for their efforts and guidance. I also thank the authors and the special editors that reviewed the articles prior to submission.
Finally, as I noted in last year’s report, the ALC was planning to file its petition seeking formal Bar section status to allow the ALC to make a far greater impact in the field of animal law. I am pleased to report that not only did the ALC successfully file its petition, but that the Program Evaluation Committee voted in January of this year to approve the petition and create the new Animal Law Section starting in 2016. We are in the process of having further reviews by the Board of Governors, but are hopeful that the final approval will be made this fiscal year. I invite you all to join the new section and participate in the development of this diverse and interesting area of law.
Members of the Bar who are interested in joining the ALC or being added to its email notification list should contact Jeremy Citron from The Florida Bar at [email protected] Questions about this report or the activities of the ALC should be directed to me at [email protected] We encourage anyone with an interest to contact us and participate in ALC activities.
Ralph A. DeMeo, 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 met by conference call and electronically to revise and start the process of adopting proposed rule amendments to the standards for certification in this specialty area. Specifically, the committee drafted revisions to 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 revised proposed rule amendments are currently pending review by The Florida Bar. The committee also continued its discussion throughout the year concerning ways to promote certification in order to increase the number of applicants for antitrust and trade regulation law.
I thank my fellow committee members for their contributions through the year: Vice Chair Patricia Conners, D. Matthew Allen, Judge Edward LaRose, and Lawrence Silverman. I also commend our hard working staff liaison, Lindsey Blomberg, for her guidance and especially her patience.
Hal Litchford, Chair
Appellate Court Rules
During the 2014-2015 year, the Appellate Court Rules Committee has been hard at work addressing a variety of proposed rule amendments.
Our triennial report, which included proposed amendments to 29 of the Florida Rules of Appellate Procedure, was filed in 2014. Immediate past Chair Eduardo Sanchez did a great job representing the ACRC at the oral argument before the Florida Supreme Court on June 5, 2014. The court issued its opinion, which adopted the majority of the proposed amendments on November 18, 2014. See In re: Amdmts. Fla. R. App. P., 39 Fla. L. Weekly S665, 2014 Fla. LEXIS 3296 (Fla. Nov. 6, 2014), corrected by 2014 Fla. LEXIS 3783 (Fla. Dec. 18, 2014). The new rules took effect on January 1.
In January, the ACRC filed an out-of-cycle report to amend Fla. R. App. P. 9.210 to eliminate the brief-binding requirement in subdivision (a)(3), which is causing difficulty for the clerks of court in the scanning of briefs that are stapled or otherwise bound. At the same time, the ACRC recommended amending subdivision (a)(5) to require consecutive page numbering, which will ensure that the unbound briefs are kept in proper order. Those proposals are currently pending in Case No. SC15-97.
The ACRC teamed up with the Criminal Procedure Rules Committee to work on proposed amendments to Fla. R. Crim. P. 3.192, 3.800, and 3.850, which permit motions for rehearing to be “deemed denied” if no ruling was entered within a specified number of days. These rule provisions set up an apparent and unresolved conflict with Fla. R. App. P. 9.020(i), which defines rendition for appellate purposes as entry of “a signed, written order.” A joint out-of-cycle report was filed in February 2015 with the court. See In re: Amdmts. Fla. R. Crim. P., Case No. SC15-290.
Several ad hoc subcommittees have been formed this year to address a variety of matters arising from other entities. For instance, the 2.140 subcommittee was formed in the fall of 2014 to study and participate in proposals to amend Fla. R. Jud. Admin. 2.140, which will impact how the ACRC does its work. A “local rule” subcommittee was formed in January 2015 to review proposed local rules from the 15th Judicial Circuit, and we are working with the Appellate Practice Section on this since the proposals impact our rendition rule. In addition, an ad hoc subcommittee was formed to review all the appellate rules in response to the proposed elimination of the extra five days permitted for service by e-mail in Fla. R. Jud. Admin. 2.514 and 2.516.
The ACRC revised its internal operating procedures to detail how comments on the cycle report are addressed. The committee also revised the subcommittee report form so that it will be easier for the court to quickly grasp the reasons for proposed amendments and the majority and minority views.
Everyone on the ACRC works very hard, with the bulk of the work being accomplished in subcommittee meetings. We also have great attendance at our full committee meetings, with the vast majority of ACRC members attending in person. Everyone is engaged and united in their goal to make the rules better.
Special thanks are owed to all the subcommittee chairs and vice chairs: Gigi Rollini and Judge Stephanie Ray, administrative law practice; Jeff Kuntz and Betty Wheeler, civil practice; Kristin Norse and Andy Stanton, criminal practice; Christine Graves and Mihaela Cabulea, electronic filing; Stephanie Zimmerman and Wendie Cooper, family law; Stephanie Serafin and Lance Curry, general practice; Michael Davis and Dwight Slater, orientation; Tracy Gunn and Rosemarie Farrell, original proceedings; Dottie DiFiore and Steven Seliger, record on appeal; and Marjorie Gadarian Graham and Judge Kathryn Pecko, workers’ compensation.
I also thank the ACRC officers: Vice Chairs Tom Hall, Craig Leen, and Judge Kent Wetherell, who have continued their committee work, while at the same time tackling special projects I have assigned them; our amazing secretary, Courtney Brewer; Parliamentarian Duane Daiker; and RJA Liaison Elliot Kula, who has been steadfast in this role for the past two years. Andy Stanton also deserves recognition for serving as the ACRC’s liaison to the Criminal Procedure Rules Committee, which requires back-to-back meetings on Fridays for him.
Our Bar liaison, Heather Telfer, has the ACRC’s heartbeat and does a fabulous job guiding us through the procedures and ensuring we stay on schedule with our work. Words seem inadequate — we would be adrift on the “sea of rules” without her.
On a sad note, John Hamilton passed away in February. Although John termed off the ACRC last year, he continued to contribute as an ad hoc member and with email comments. In honor of his outstanding contributions to the appellate rules, I will be presenting the inaugural John R. Hamilton “Make the Rules Better” Award at our June meeting.
It has been a privilege and an honor to serve on a committee composed of so many exceptionally talented people who dedicate their time and considerable talents to improving our appellate court system. I am thankful for this wonderful opportunity to work with you and become your friend.
Wendy S. Loquasto, Chair
Appellate Practice Certification
The 2014-2015 certification year was especially busy for the committee because of an unusually high number of recertification and initial certification applicants. Thirty-nine applicants were approved for recertification. The committee approved 19 initial applicants to sit for the 2015 board certification exam. Eighteen of those applicants ended up taking the exam, which had not yet been graded at the time of this report.
The committee continued the practice of pretesting exam questions before use in the 2015 exam. The committee finds this practice to be extremely beneficial to the drafting and editing process and expresses its gratitude to the following former members who gave up their free time to serve as pre-testers: Susan Whaley Fox, Nancy Wood Gregoire, Lucinda Ann Hofmann, Susan Scrivani Lerner, Anthony Charles Musto, and Debra Jane Sutton.
At press time, the committee was also making some clarifying revisions to its standing committee policies and proposing some changes to the Rules Regulating The Florida Bar concerning certification in appellate practice. The purpose of all of the changes is to promote consistency and clarity in and between the rules and policies.
The chair recognizes all eight of the other members of the committee for their substantial contributions: Vice Chair John Crabtree, John Mills, Dock Blanchard, Barbara Eagan, Dorothy Easley, John Mills, Paul Nettleton, and Andrea Cox. As in previous years, the committee could not have accomplished its mission without the tremendous experience and dedication of our certification specialist with the Bar, Carol Vaught, and BLSE’s former director, Dawna Bicknell.
Robert J. Hauser, Chair
Florida is the home of 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 have included formal presentations on new or novel substantive law issues. In the past year, the committee has participated in discussions regarding aircraft control tower litigation, considered the effect of the recent amendments to Florida’s expert witness statute upon aviation litigation, reviewed proposed and pending federal legislation impacting aviation, and heard from an experienced mediator regarding novel strategies to use in resolution of disputes.
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, but it is also a good review for other attorneys. The committee plans to continue this outreach in the future.
F. Bradley Hassell, 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. Three applicants took the certification exam this year, and we are looking forward to the announcement of the exam results.
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.”
I thank my vice chair, Stuart Goldstein, for his invaluable support and dedication this past year. I also extend my thanks to all of the other committee members, Robert Feldman, Jerry Trachtman, Bruce Green, Ed Curtis, Pat Phillips, and Tim Ravich for their assistance.
Carol Vaught, our Bar staff liaison has provided invaluable knowledge, guidance, and support to the entire committee. We had another successful year because of her never-ending help and support of the committee.
Our thanks also goes to Jerry Trachtman for making arrangements for the Aviation Law Certification Committee to hold this year’s annual grading session in conjunction with a behind-the-scenes tour of Kennedy Space Center.
Mary Burnett, Chair
Board of Legal Specialization and Education
This year, the Board of Legal Specialization and Education (BLSE) welcomes our new director of legal specialization and education, Diana Polston, as we bid fond farewell to Dawna Bicknell, the only other director BLSE has ever known. We are excited to have Diana, a past section administrator with multiple sections of the Bar, whose valuable experience has already enriched our program.
The function of the BLSE 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 order to accomplish this, the BLSE administers the board certification program. The Florida Bar boasts a board certification program that is a well-established institution and is preeminent nationally among attorney certification programs.
Attorneys who have been practicing law for five years and meet the other criteria of one of the 24 recognized areas of board certification may apply to become board certified. We are thrilled that new applications for board certification continue to increase, and we strongly encourage all attorneys in Florida to participate in this voluntary self-improvement and self-enrichment program. As Justice Anstead put it, “Certification should be the capstone for a lawyer’s professional goals.”
In addition to operating the existing certification program, the BLSE plans for the future and expansion of the certification program. This year, the Board of Governors approved the BLSE’s recommendation for the creation of two new areas of certification. Certification in juvenile law would recognize the skill and professionalism among those lawyers who do the important social job of assisting children at risk, particularly in delinquency, dependency, and termination of parental rights matters, and has been placed before the Florida Supreme Court for approval. The creation of a certification area for attorneys practicing condominium and planned development law, a critical part of the economy of the state of Florida, has also been sent to the Florida Supreme Court. Both of the proposed new areas have support from the sections of The Florida Bar, which cover the substantive areas of law for which approval is sought. Moreover, at least 100 attorneys for each area have signed a petition or stated an interest in becoming board certified in the area. The BLSE expresses its sincere gratitude to the proponents of these two new areas of certification for their commitment to the ideals of the certification program.
BLSE thanks the dedicated and hard-working members of the LSE staff. Their effort and remarkable skill have been essential to the development of the certification program. Thanks also go to the area certification committees for their hours of labor and dedication to excellence. The area certification committees labor on the front line, both drafting and grading the certification examination and evaluating peer review of applicants. We also thank the board certified lawyers of the state for carrying our flag and promoting the program. But most importantly, to all Florida attorneys who have not yet become board certified, we extend a welcoming invitation to join this group. Then you, too, can say you are “evaluated for professionalism and tested for expertise.”
John H. “Jack” Pelzer, Chair
Business Litigation Certification
Business litigation is the practice of law generally dealing with the legal issues arising from commercial and business relationships, including litigation of controversies arising from those relationships. Certification in business litigation includes the practice of law involved with evaluating and resolving these controversies before state courts, federal courts, administrative agencies, mediators, and arbitrators. Thus, board certified business litigation attorneys must possess very specific skills in a broad array of substantive areas and also demonstrate a high level of proficiency and professionalism. The Business Litigation Certification Committee members personally encourage our colleagues who are interested in this area of certification to review the materials on The Florida Bar’s website, to discuss the requirements with others certified in this area, and to reach out to the Bar’s dedicated staff for additional information about the requirements and the manner in which they can be satisfied.
The number of board certified lawyers in business litigation has grown at a steady rate. There are now 243 Florida lawyers certified in business litigation. Initial applications for board certification in business litigation, as in recent prior years, continue to be submitted at a steady rate. Eighteen attorneys are expected to sit for the 2015 business litigation examination. Nine attorneys were recertified in 2014, and 21 certified business litigators are due for recertification in 2015.
The business litigation examination tests for competency in the areas of procedure and substantive law relevant to the litigation of business disputes. In 2014, 10 attorneys passed the exam and have been welcomed into the growing number of Florida board certified business litigators.
The Business Litigation Certification Committee members devote time to a host of activities to improve and enhance the certification process in business litigation law. In particular, over the past year, the members of the committee have strived to use the best practices of exam drafting and grading. Toward that end, the committee members revised the examination format and developed and refined questions for the exam. The committee members are dedicated to creating an exam that is a valid and reliable test of knowledge, skills, abilities, and judgments. Each committee member has devoted significant time and energy in drafting and grading the exam and in reviewing applications. Attendance by committee members at the certification leadership conferences in the past few years has proved invaluable in assisting the committee to improve and focus the test materials and the certification process.
The committee members are collectively and actively dedicated to enhancing the certification process for those business litigators who seek to achieve the designation “board certified specialist.”
For all of their time and efforts this past year, I thank each of the committee members, including Vice Chair Wade Bowden, past Chair Gary O’Donnell, members Judge Paul Huey, Steven Meyer, David Steinfeld, Donna Solomon, and new committee members Hank Jackson and Jeremy Slusher. On behalf of the committee, I especially thank our Florida Bar certification specialist, Laurinda Babers. The committee appreciates all of her efforts, assistance, and hard work.
Maxine M. Long, Chair
City, County and Local Government Law Certification
City, county, and local government law is the practice of law addressing legal issues of county, municipal, and other local governments. The practitioner must be well versed in a variety of legal topics from sovereign immunity to public finance and must be prepared to face a variety of legal issues confronting local governments.
To be certified in city, county, and local government law, a lawyer must be a member in good standing of The Florida Bar, and must have practiced law for at least five years (four years if the lawyer received an LL.M. degree in urban affairs or a related field). Each certified lawyer must have substantial involvement — 40 percent or more — in the practice of city, county, and local government law during the three years preceding application. Also within those three years, each certified lawyer must have completed 60 hours of continuing legal education specific to topics in city, county, and local government law. Certification also requires lawyers to submit to rigorous peer review and pass a comprehensive written examination. We are proud to have 245 local government law attorneys certified in this multi-faceted and diverse area of the law.
This year, the committee reviewed 28 recertification applications, and 25 applications to sit for the exam, which was held on May 15 in Tampa. Throughout the year, members focused on structuring an exam that remains fair, challenging, and pertinent to the practice of city, county and local government law. Special care was taken to ensure that the questions follow the criteria as outlined in the committee’s exam specifications.
The committee met several times in person and via conference call to review applications, construct the exam, review requests, and grade examinations. The committee also made a special effort this year to update the previously posted sample questions. The sample questions now provide a greater coverage of the various topics tested on the exam, as well as examples of real essay questions administered in previous years.
The purpose of the certification exam is to assist the City, County and Local Government Certification Committee in identifying those lawyers who have the special knowledge, skills, and proficiency in city, county, and local government law that distinguish them from other attorneys who practice in this area. The exam tests the applicants’ knowledge of 12 practice areas: Conflict of interest/financial disclosure, ethics, civil rights, home rule and exercise of police power, land use and zoning, practice and procedures before local government legislative and quasi-judicial bodies, sovereign immunity, public finance, public sector liability, sunshine law and public records law, procurement and public contracts, and eminent domain.
I had the pleasure of working with a tremendous group of knowledgeable, well-respected members of the local government law community. As chair, I thank my fellow committee members who worked so hard throughout the year: Vice Chair Rosemary Perfit, Donna Marie Collins, Bob Pritt, Pamala Ryan, Ken Tinkler, and Rodney Wade, and former immediate past Chair Don Crowell. We also extend a special thanks to Carole Barice, who is completing her sixth and final year of service on the committee. Carole, your hard work and dedication will be greatly missed. I myself am wrapping up the final year of my second six-year tour of duty serving on the committee, and it’s proven to be an even more rewarding experience than my first go-round. Finally, I thank our committee liaison, Zachary Shrader, who continues to provide excellent coordination between the committee, the BLSE, and The Florida Bar. Go, Gators.
Alan Prather, Chair
Citizens Forum – Citizens Advisory
The Florida Bar Citizens Forum is an advisory group of 12 citizens with varied interests and backgrounds who serve to provide two-way communication between the state’s major citizen constituencies and the Bar’s 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 forum annually to serve as resources. The forum meets three times a year: twice in conjunction with Board of Governors meetings and once at annual convention.
Four new members appointed for the 2014-2015 year were: Steven Deneke, a retired law firm administrator from Pensacola; Judy Doyle, a writer/reporter and editor from Orlando; Sharon Booth Middleton, a nurse educator from Ponte Vedra; and Richard Sarner. M.D., a radiologist from Jupiter. These members will serve three-year terms ending in 2017.
The chair for this year is Tony Holloway, one of two public members on the Board of Governors. He is chief of police in St. Petersburg. The vice chair is Linda Goldstein who is in her third year on the committee. Ms. Goldstein is director of communications for Hillsborough County Clerk of Court and president of Linda Goldstein Communications.
For the 2014-2015 Bar year, the committee met at the July and January Board of Governors meetings. President Greg Coleman attended both meetings and expressed the appreciation of the entire board for the committee’s contributions.
In July, the committee had a presentation on The Florida Bar’s lawyer regulation responsibilities and an overview of the grievance process. They also met with Elizabeth Tarbert, Bar ethics counsel, to discuss how Bar rules provide for members to petition the Supreme Court directly. Bruce Blackwell, executive director of The Florida Bar Foundation, gave an update on the foundation, its grantees, and the legal aid funding crisis in Florida.
In January, the committee agreed on changes to the Citizens Advisory Committee charter to allow meetings by teleconference and to orient new members at the annual convention. The Elder Law Section presented a proposal to educate the public on elder law consumer issues and the committee members provided feedback and ideas for the campaign. Barry Richard, outside legal counsel to The Florida Bar, spoke to the committee about advertising rules and discussed the challenges of regulating lawyer advertising and recent changes based on court cases. An overview of the new Florida Commission on Access to Civil Justice was given, and the committee discussed the issues under study particularly improving access to justice for middle income Floridians. In addition, members attended the Pro Bono Awards Ceremony at the Florida Supreme Court and the Supreme Court Historical Society Annual Dinner.
The third and final meeting of the Citizens Advisory Committee will be held at the 2015 annual convention. Leaving the committee after serving three-year terms are Bill Conrad of Newberry; Linda Goldstein of Tampa; Susannah Grady of Tampa; and Paulette Hatchett Simms of Tallahassee. Their service has been greatly appreciated.
Anthony Holloway, Chair
Civil Procedure Rules
The Civil Procedure Rules Committee addresses proposed new rules and amendments to the rules. 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. If you have an idea to improve the rules, I strongly encourage you to reach out to me or another member of the committee to share your suggestion.
The amendment process takes time because the members of the committee thoroughly evaluate and study each of the proposals and referrals. After fully vetting any proposed amendment, the committee decides whether to recommend a change to an existing rule or the adoption of a new rule. In its three-year cycle report, the committee presents the proposed amendments to the Board of Governors and the Rules of Judicial Administration Committee and simultaneously publishes the proposed amendments in The Florida Bar News, inviting comments to the proposed amendments. Eventually, the rules and comments are presented to the Florida Supreme Court for its final decision as to whether and to what extent to amend the rules or adopt new ones.
With the deadline for the 2016 three-year cycle report fast approaching, the Civil Rules Committee was quite busy this year. This year’s cycle report will contain proposed amendments to eight rules, as well as two general proposals that affect various rules and forms:
• Rule 1.020, Privacy and Court Records — Expands the rule calling for compliance with Fla. R. Jud. Admin. 2.420.
• Rule 1.100, Pleadings and Motions — Rule amended to address naming of parties in pleadings and amended pleadings.
• Rule 1.545, Final Disposition Form — Created as a result of amendments to Rule 1.100(c)(3).
• Rule 1.110, General Rules of Pleading — Amends subdivision (d) to change contributory negligence to comparative negligence.
• Rule 1.140, Defenses — Amends the rule to change the concept to be based on filing of the order, as opposed to when notice of the order occurs. This was done to alleviate confusion as to when a responsive pleading is due.
• Rule 1.310, Depositions Upon Oral Examination — Corrects a reference error to the appropriate Fla. R. Jud. Admin. 1.280(g).
• Rule 1.320, Depositions Upon Written Questions — Amended to shorten the time for serving questions and objections and that
objections to form are waived unless raised within the appropriate time frames. Additionally, adds that a deposition on written questions may be videotaped in accordance with Rule 1.310(b)(4).
• Rule 1.431, Trial Jury — Amended to permit the court to impanel additional alternate jurors, and amended subdivision(h) to provide 15 days to serve a motion to interview a juror (and make consistent with the amendment to Rule 1.530, which increased the time to serve a motion for new trial from 10 to 15 days).
• Rule 1.630, Extraordinary Remedies — Amended language in subdivision (b)(3) from “petition” to “complaint.” Changed the term “papers” to “documents” in 12 rules and three forms. Amended signature blocks to meet the requirements of Fla. R. Jud. Admin. 2.515(a) in eight forms.
In addition, the members of the committee have devoted countless hours working on potential amendments that will not be included within the three-year cycle report. way of example, Judge Hogan-Scola’s subcommittee has worked tirelessly on the recently amended residential foreclosure rule, which was a direct request from the Florida Supreme Court in response to Ch. 2013-173, Laws of Fla. Meanwhile, Alan Landerman and his subcommittee have continued to study ways to improve the offer of judgment rule.
I thank all the members of the committee for their time and dedication and recognize my vice chairs, Judge Hogan-Scola and Greg Ward. I also thank immediate past Chair Tom Bateman for his advice and counsel, R.J. Haughey for his work as chair of several subcommittees and serving as secretary, Jane Kreusler-Walsh for serving in the important role as chair of the drafting subcommittee, and Greg Brown for his work on the ADR subcommittee, which will include his participation at oral argument before the Florida Supreme Court on behalf of the committee.
Finally, at the midyear meeting in January, the committee said goodbye to its longtime liaison, Ellen Sloyer. After 30-plus years of service to the Bar, Ellen will be missed. The committee remains in able hands with Greg Zhelesnik taking over as the liaison.
Kevin Cook, 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 courts of general jurisdiction. 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 2014-2015, the committee reviewed 199 applications for recertification. There were 45 applicants for initial certification that were approved for the March examination. The committee will grade the examinations and results will be sent to newly board certified attorneys before June 1.
This year, considering the current realities of a trial practice, the committee continued its review of the standards for certification in civil trial law. Along with the BLSE, the committee will make recommendations to the Florida Supreme Court regarding the number of trials required in the five-year period immediately preceding initial application and in the granting of additional trial credits for multi-week trials. The committee also amended its policies to provide 100 percent of the maximum number of CLE hours available for intermediate-level courses.
A member of the Civil Trial Certification Committee participated in The Florida Bar’s Annual Civil Trial Update and Board Certification Review in order to provide information on examination procedures. 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 Jeffrey Fleming, Vice Chair Robert Moletteire, Bill Hoppe, Henry Hunnefeld, Charles Ingram, Woodsom Isom, Charles Morehead III, Louis Mrachek, and Maria Trenzado gratefully acknowledge the efforts of Lisa Kustel, The Florida Bar’s certification specialist, whose knowledge and competence made our work so much easier.
Jeffrey Michael Fleming, 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. It is currently financed by $25 of every Bar member’s annual dues and has over $2.4 million budgeted for fiscal year 2014-15 to pay claims brought by former clients. The fund reimburses clients under two circumstances: where 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 399 new claims and paid out nearly $1.5 million to clients. As of the date of this report, for the fiscal year ending June 30, the fund has received 291 claims against 136 lawyers and has currently approved losses in excess of over $1.8 million. Claims are paid only after a lawyer has been disbarred, suspended, or in the event of a death of an attorney for which a client’s money is unaccounted. Fee claims are paid promptly after approval. Misappropriation claims are paid on a pro rata basis after the end of the fiscal year with the new exception of those misappropriation claims approved in the amount of $1,000 or less. These claims are also now paid upon approval.
Since its inception, the Clients’ Security Fund has processed over 11,600 claims and paid out over $32.5 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 2014-15 Clients’ Security Fund Committee is composed of 28 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 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. 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 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 of the members is also rewarded as most clients are very grateful to be compensated.
There are more than 100,000 lawyers in the state of Florida and claims under the Clients’ Security Fund are made against less than. 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. 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 six years and am term limited. It will be difficult for me to end my tenure on the committee. Each call to an injured client allows me, and every investigating member of the committee, the chance to right a wrong and attempt to reestablish 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 diligence and hard work in processing claims.
All who serve on a Florida Bar committee, especially the chair persons, know that this important work would not be accomplished without the dedication of Bar staff. Committee members and clients rely heavily on Bar staff and without their commitment, we could not do our jobs. Profound thank you to Patricia J. Osborne, CSF coordinator, and Lori S. Holcomb, director of client protection for the tremendous effort, work, and discipline that each of them have given to this committee. I will miss working with them.
Jeffrey Alan Adelman, Chair
Code and Rules of Evidence
The Code and Rules of Evidence Committee (CREC) is one of 10 rules committees dedicated to advancing orderly and inexpensive procedures for the administration of justice. To do that, CREC regularly evaluates the Florida Evidence Code to see where improvements may be made and advises the Florida Supreme Court whether it should adopt amendments affecting the Florida Evidence Code to the extent they are procedural. This past year, CREC made three recommendations.
CREC recommended to the Florida Supreme Court that it adopt a new hearsay exception: F.S. §90.802(2)(f), also known as forfeiture by wrongdoing. On CREC’s motion for rehearing, the court accepted CREC’s recommendation. In re Amendments to the Fla. Evidence Code, 144 So. 3d 536, 537 (Fla. 2014).
CREC considered how amendments to §766.102, the Florida statute addressing expert witness standard-of-care testimony in medical malpractice cases, affect the Florida Evidence Code and provided a recommendation consistent with its observations. I thank Andrew Hamilton for preparing that report.
CREC addressed one of the most significant changes to the Florida Evidence Code since the code’s inception: the legislature’s recent revisions to F.S. §§90.702 and 90.704, which concern the admissibility of expert witness testimony. Appreciating the import of those revisions and any recommendation it would make, CREC solicited input from the public, considered position papers analyzing the legislation, and robustly debated the issue. CREC filed two reports with the court, reflecting a close division on whether the Florida Supreme Court should adopt the legislature’s changes to §§90.702 and 90.704. I thank David A. Jones and Wayne Hogan for authoring reports reflecting CREC’s thoughtful and thorough treatment of this issue.
More recommendations are to come: CREC is evaluating amendments to the parts of the Florida Evidence Code addressing judicial notice and the hearsay exception for statements by an elderly person or a disabled adult.
CREC also endeavors to educate lawyers and the public about evidence law. On April 17, CREC, in conjunction with the Criminal Law Section and the Trial Lawyers Section, presented its annual Hot Topics in Evidence CLE seminar. That seminar covered recent changes to the Florida Evidence Code and emerging issues with electronic evidence, social media evidence, and scientific evidence. Additionally, the seminar provided an overview of how the legislative and the rulemaking processes collectively produce Florida evidence law. Greg Borgognoni, the seminar’s program chair, receives my sincere appreciation and accolades for his hard work.
Given our Bar president’s focus on leveraging technology, CREC moved beyond its historical practice of using a single CLE event and began hosting webinars on evidence. CREC also created social media pages through which the public and Bar members may receive alerts regarding new opinions on evidence law. Sheila Norman and Greg Borgognoni receive my sincere thanks for accomplishing those objectives.
In closing, I extend my heartfelt appreciation to CREC’s vice chairs and subcommittee chairs; to Ellen Sloyer, CREC’s former Bar liaison, for her invaluable experience and assistance; to Greg Zhelesnik, CREC’s new Bar liaison, for his assistance; to John H. Hickey, CREC’s liaison to the Board of Governors; and to our Bar president for the privilege of serving as chair of this committee.
Timothy M. Moore, Chair
During the 2014-15 Florida Bar year, the Constitutional Judiciary Committee:
• Considered changing the name of the committee to one that better reflects its current goals and objectives, such as the Committee for Fair and Impartial Courts. After a vigorous debate about the committee’s purpose and coming 10 years after the committee’s establishment by the Bar in the face of unprecedented attacks on the judiciary in Florida, it was decided to retain the current name to reflect the constitutional significance of the judicial branch of government.
• Focused on making its Benchmarks program of civics education for adults more accessible to attorneys who make presentations by producing a Benchmarks toolkit.
• Planned to make short video overviews of each Benchmarks activity.
• Presented two Benchmarks training seminars.
• Added a Benchmarks module on Assessing the Amendments, which examines the ways Florida’s Constitution is amended as well as the amendments that were on the 2014 general election ballot in Florida.
• Continued working with National Association of Women Judges’ Informed Voters Project.
• Constitutional Judiciary Committee: Then and Now — Ten years ago the tragic case of Terri Schiavo, a young woman who had suffered a severe brain injury, worked to its conclusion in a courtroom in Pinellas County. Because of the decisions he made, the trial judge received death threats. Kelly Overstreet Johnson, serving as Florida Bar president at the time, said: “The final disposition of the Schiavo case and attacks on Judge George Greer were without precedent. It is the first time I recall a judge having to leave his house, have 24-hour security, and be kicked out of his church for following the law and doing his job.” She added: “We must continue with these efforts to educate, inform, and explain. The public doesn’t understand our system. It should be scary to all of us that many of the public believe judges make rulings based on their personal viewpoints and not precedent. That needs to change.”
The attacks on Judge Greer and other judges led to the formation by The Florida Bar of a special committee that became the standing Committee for Judicial Independence, with the mission of working to strengthen Florida’s judiciary and to help maintain its independence as the third branch of government. In 2011, because of the feeling by some that the term “judicial independence” carried negative connotations, the name was changed to the Constitutional Judiciary Committee, a name that for some members did not clearly state the committee’s purpose. The most suggested alternate name was the “Committee for Fair and Impartial Courts.”
After extensive discussions, the committee decided against a name change. Arguments against a name change included the suggestion that some might believe that courts were not currently fair and impartial, and that such a name sounded like it was a political action committee. Going forward as the Constitutional Judiciary Committee, members rededicated themselves to the mission of educating the public about the judicial branch of government and the need for it to be free of politics. In the overall analysis, the name of the committee is not as important as the work we continue to do. “A rose by any other name would smell as sweet.”
• Benchmarks — Much of the committee’s work is accomplished through its Benchmarks program, which has now reached its five-year anniversary. Polls continue to show that many adult Americans do not have a good grasp of the basic structure of their government and most particularly the role of the judicial branch.
For example, a 2014 report from the Annenberg Public Policy Center reported that while little more than a third of respondents could name all three branches of the U.S. government, just as many could not name a single one. Moreover 21 percent of Americans incorrectly think that a 5-4 Supreme Court decision is sent back to Congress for reconsideration.
When people are educated about the courts, their support for the judicial branch increases. That is the ongoing purpose of Benchmarks: to educate adults about how their government works with the belief that such lessons increase overall support for the judicial branch. Each Benchmarks activity comes with an overview and handouts. All materials can be downloaded from The Florida Bar website. Currently there are 11 presentations. I encourage you to review these materials, attend a training session, and help promote civics education in your community. An informed public is the best defense of a vibrant democracy, the rule of law, and an independent, impartial, and fair judiciary.
• Benchmarks Toolkit — Now available is an Internet-based toolkit designed to help Benchmarks speakers find speaking engagements, make top-notch presentations and get feedback from attendees. It includes information on why Benchmarks matters; a form to submit for CLE credit; a flier to give to civic groups with their attorney contact information; an evaluation form to give to civic groups to report back on sessions; and a tip sheet on making good presentations.
• New Benchmarks Presentation: Assessing the Amendments — The committee continued its work with Annette Pitts, executive director of the Florida Law Related Education Association, in developing activities for Benchmarks. Pitts is recognized nationally for her civics education expertise. The committee added to the Benchmarks portfolio a new activity in time for the fall elections on Assessing the Amendments, which reviews differences between the process for joint resolutions from the legislature and citizen initiatives and discusses the three amendments that were on the November ballot. I cannot overstate the importance of Annette Pitts and her work in developing the Benchmarks modules and her passion for civics education. Without her efforts, Benchmarks would not exist. As it stands now, Benchmarks is a model program that is being adopted by bar associations around the country. We are lucky to have her as part of our team.
• Informed Voters Project — The committee continues to work with the National Association of Women Judges in promoting its Informed Voters Project, which is championed by our own Justice Barbara Pariente. The Informed Voters Project is modeled on a Benchmarks module and promotes the critical importance of keeping our courts “fair and free.” A link to the Emmy award-winning video can be viewed on the IVP website. It is powerful and I would encourage you to view it and share it with your friends and colleagues.
• Training Continues — The committee held a Benchmark training session at the fall meeting in Tampa and one will take place at the annual convention in Boca Raton at which incoming Chair Judge Michelle Sisco will present with Pitts and attorney emeritus committee member Richard Levenstein.
While they won’t be making presentations, the 20 reporters who attended the Florida Bar Reporters Workshop in September in Tallahassee received a Benchmarks overview and gave the program rave reviews. The session for reporters focused on how a case progresses in the courts. Pitts, who teamed up with committee member Karla Ellis for the presentation, also gave reporters a variation of the new amendments activity.
Sponsored by The Florida Bar’s Media and Communications Law Committee, the Reporters Workshop is an intensive, two-day event with sessions held at the Judicial Meeting Room of the Florida Supreme Court for reporters new to legal reporting and the courts. Last fall was the workshop’s 25th anniversary. Sessions cover libel law, public records, and high-profile cases. This is the second year reporters received a Benchmarks overview.
Pitts also made presentations about Benchmarks to the Bar’s Citizens Advisory Committee and its Leadership Academy.
One of the continuing goals of the committee is to have attorneys sign up with the Speakers Bureau to increase the number of Benchmarks presentations made throughout the state. An ongoing effort with voluntary bar associations to have members sign up for The Florida Bar Speakers Bureau will continue to build the pool of speakers ready to make Benchmarks presentations.
In the coming year, a goal of the committee is to get short videos made of each presentation and have those available on the website. Those videos will be particularly beneficial to new speakers.
• Moving Forward — My time as chair of the committee has come to an end and I have truly enjoyed the six-years I spent promoting civics education and helping train attorneys to be a voice in their communities on the importance civics and the need to protect and defend our courts and judges from unfair attacks.
In a 2008 speech, former U.S. Supreme Court Justice Sandra Day O’Connor noted: “For as long as we have had elected officials in this country, we have had interest groups who try to influence the outcome of elections. That’s part of the process. It goes hand in hand with democracy and elections,” O’Connor said. “But judges are not ordinary politicians. Their job is not to interpret the will of the people.”
If judges are removed from the bench because they make unpopular decisions, they will be chilled from acting to uphold the constitution and protect the rights of all citizens. As attorneys, we are uniquely positioned to lead the way in promoting civics education in our schools and communities. I hope you will take on the challenge of helping to create better informed citizens through civics education.
Michael Napoleone, Chair
Construction Law Certification
The committee has continued to pursue additional initiatives to improve the quality of the construction law certification exam for 2015. As of this date, there are 337 board certified construction lawyers, including 20 who passed the 2014 exam (out of 36 examinees, for a 56 percent passing rate). We have 55 applicants who took the 2015 exam in May, which is the highest number of applicants since the first class in 2005.
We have further modified our 2015 exam specifications and sought recommendations from Karen Barbieri, a consultant to The Florida Bar, to provide input in the preparation of the final exam questions. Based upon the feedback from Ms. Barbieri regarding the 2014 exam, our committee created new multiple-choice questions and revised our test bank questions to address certain past concerns. We have also tailored the 2015 exam to test more evenly those subjects described by the specifications with the goal of testing examinees on whether they have “walking around” knowledge of construction law that would justify them becoming board certified.
Specifically, we have changed the examination format from the prior 110 multiple-choice questions and three essays (including two short ones) to 100 multiple-choice questions and four short essays.
As we had in 2014, we presented a general overview to approximately 100 prospective examinees attending the certification review course at the 2015 Construction Law Certification Review Course held in March in Orlando. This included a description of the newly formatted questions, the revised specifications, and instructions for the exam as well as an explanation as to how the test will be graded.
Finally, our committee recertified all 31 lawyers who applied this year after reviewing applications, including careful consideration of peer review statements, grievance history, and CLE compliance.
The committee members have devoted countless hours writing exam questions and grading exams, and thoroughly reviewing certification and recertification applications. We have built a solid bank of multiple-choice questions and essays,and expect to continue adding new questions and essays every year, while reviewing existing questions and essays to reflect changes in statutory and case law.
We continue to have outstanding staff support from our Florida Bar representative, Julie Coiro, and owe her the highest accolades for her diligent efforts in assisting our committee and making our work product ever better in 2015.
Finally, thanks to all our committee members for their steadfastness and devotion to ensuring that Florida maintains the highest ethical standards for construction lawyers.
Fred R. Dudley, Chair
Consumer Protection Law
The Consumer Protection Law Committee’s mission is to educate consumers and Bar members about consumer protection laws and issues and to provide expert resources to members, judges, and lawmakers. Among its accomplishments, the committee:
• Organized a full-day seminar for the annual convention in Boca Raton focusing on how consumer attorneys can bring high-impact cases or defend against them.
• Used the Bar’s consumer pamphlets as the source for scripts for videos featuring Florida Bar leaders and Citizen’s Advisory Committee members.
• Created two new consumer pamphlets.
• Finalized a resource manual on consumer protection topics for judges.
• Invited lawmakers to contact the committee for assessments of legislation that would affect consumers.
• Planned to give a deserving attorney The Florida Bar Consumer Protection Lawyer of the Year Award for the fifth year.
• Continued using Twitter to educate consumers and consumer law attorneys.
• Reviewed and updated Florida Bar consumer pamphlets.
• Full-Day Seminar for Annual Convention — This year, the committee’s seminar, Making a Big Impact in Consumer Protection: Analyzing Consumer Impact Cases, will look at cases brought by the consumer protection division of the attorney general’s office, impact cases brought by legal aid organizations, qui tams, and class actions; cover consumer law updates, how to collect and defend against attorneys’ fees and ethical issues involved in both trying and settling consumer impact cases; and include a judicial panel to provide the perspective from both the state and federal bench. Featured guests include D. Matthew Allen of Carlton Fields Jorden Burt, whose practice focuses on class action and antitrust litigation; Judge Paul G. Byron, a U.S. district judge for the Middle District of Florida who worked as a civil trial lawyer between 1986 and 2014; Leslie A. Bailey of Public Justice, who represents consumers who have been cheated, advocates for the public’s right of access to court records and litigates complex public interest appeals throughout the country; Sharon Caserta, who manages the Deaf/Hard of Hearing Legal Advocacy and Litigation Unit at Jacksonville Area Legal Aid; Jeffrey M. Hearne, who directs the Tenants’ Rights Project at Legal Services of Greater Miami; Scott Jeeves, a civil trial lawyer and certified circuit court mediator who has been lead class action counsel on a number of complex consumer class action cases; Katherine Kiziah, an assistant attorney general in the consumer protection division of the Florida Office of the Attorney General; James A. Kowalski, Jr., executive director of Jacksonville Area Legal Aid, who exposed the robo-signing of documents on behalf of lenders during the housing market collapse; C. Martin “Marty” Lawyer III, of Bay Area Legal Services, who specializes in housing law; Judge Chris Nash, of the Hillsborough County Court, who has experience with civil, criminal, traffic, juvenile, domestic violence and probate dockets; and Frank A. Zacherl, a partner in the litigation department of Shutts & Bowen’s Miami office who chairs the firm’s class action practice group. Additionally, four current members of the Consumer Protection Law Committee: Laura Boeckman (chair, 2007-2008), Jared Lee (a current vice chair), Robert W. Murphy (chair 2004-2005), and Craig Rothburd will be presenting. They will be joined by four past members: Lynn Drysdale (chair, 2011-2012), Janet Varnell (chair, 2012-2013), James Young and John Yanchunis (chair, 2013-2014). Committee members Boeckman, Lee, Murphy and Rothburd are owed many thanks for lining up the speakers and setting the agenda for CLE, on June 27 at the Boca Raton Resort & Club. Additionally, Rothburd secured sponsors for the seminar’s working lunch.
• Social Media Outreach — The Consumer Protection Law Committee, a pioneer in social media for The Florida Bar, continued to post tweets to its two Twitter accounts. One account updates Florida attorneys about consumer law issues (@FLBarCPLCLawyer); the other is geared to consumers (@FLBarConsumer), pointing out the Bar’s consumer pamphlets and outreach events. Another social media outreach effort is using the consumer pamphlets as the basis for scripts for a series of videos. More than 200 short videos produced by TheLaw.TV in West Palm Beach were taped this year with Florida Bar leaders and Citizen’s Advisory Committee members on camera. The videos are available at www.floridabar.org/consumerinfo.
• Legislative Outreach — Chair Tequisha Myles sent a letter to all lawmakers before the start of the legislative session urging them to reach out to the committee for analysis of any bill that would affect consumers. Additionally, legislative subcommittee members, led by Robert Clements, Will Armistead, and Alice Vickers, kept members posted about bills moving through the session with a consumer impact.
• Manual for Judicial College Training — The committee completed a 53-page manual on consumer topics to be given to judges. Spearheaded by member Mary Ann Etzler, the manual covers Florida’s Unfair and Deceptive Trade Practice Act, automobiles and automobile dealers, credit card actions, government enforcement, residential eviction, and other issues. The committee plans to print the manual, with funds secured from a sponsor, and present it to judges. The goal of the manual has been to present consumer issues in a consistent and neutral manner so that judges have a starting point when addressing consumer topics. Thanks go to Etzler for steering production of the manual over the past two years. She received assistance from Delton Chen, Shaunda Hill, past member Steven Fahlgren, committee Co-chair Jared Lee, Craig Rothburd, past member Elizabeth Starr, Alice Vickers, and Mike Ziegler.
• Minority Mentoring Picnic — The committee produced a flier that was distributed at the Kozyak Minority Mentoring Picnic in Miami in November. The flier, which promoted the practice of consumer law, was well received.
• Consumer Protection Lawyer of the Year — For the fifth year, the committee will honor an attorney for excellence, character, and commitment to the practice of consumer protection law. Mary Lewis organized the effort to gather nominations and select the Consumer Protection Lawyer of the Year for 2015. Last year’s winner, Lynn Drysdale, a long-time attorney at Jacksonville Area Legal Aid, received the award at a presentation ceremony in the office of Attorney General Pam Bondi.
• Pamphlet Updating — The Florida Bar has dozens of consumer pamphlets on subjects from wills to hiring attorneys. Nineteen titles are in print with all titles available online. Additionally, 16 consumer tips are available only online. These publications are reviewed regularly to make sure information is current, and it falls to the Consumer Protection Law Committee to do this. Under the direction of Lesly Longa, the committee updated pamphlets scheduled for review. Thanks to Wilhelmina Curtis, Courtney Durham, Mary Ann Etzler, Mary Lewis, and Tequisha Myles for their work.
Thanks also go to David Weintraub for writing “How Well Do You Know Your Financial Adviser?” and Ryan G. Moore for writing “Credit Report Disputes.” These two proposed pamphlets approved by the committee must now be reviewed by the Board of Governors before they are added to the inventory of current Florida Bar pamphlets.
I thank Vice Chairs Sasha Sampaio and Jared Lee for their steadfast work on behalf of the committee and consumers throughout Florida. Their efforts contributed to a successful year for the Consumer Protection Law Committee on all fronts.
Tequisha Myles, Chair
Continuing Legal Education
The mission of the Continuing Legal Education Committee is to assist the 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, and staff of The Florida Bar and others who participate in the CLE process.
The committee has continued to work with the Bar to improve the means of delivery and presentation of CLE materials to the Bar members, whether live, via the Internet, or by recorded means. As always, our committee members have also undertaken to evaluate numerous presentations throughout the year to provide feedback for the purpose of improving CLE programs for all members of the Bar. Among other projects, efforts have continued in evaluating the Bar’s website and offering suggestions for its redesign based on an extensive evaluation of the websites of other bar associations across the country. In the future, we look forward to these suggestions being incorporated into the Bar’s website.
The committee has also offered its support to the recently formed Committee on Diversity and Inclusion and will be working together to establish guidelines for how diversity should be incorporated into future continuing education programs.
Michael S. Bloom, Chair
Criminal Law Certification
The Criminal Law Certification Committee oversees the process of certifying attorneys as either criminal appellate law specialists or criminal trial law specialists recognized by The Florida Bar and for reviewing the applications of currently certified attorneys seeking recertification due to expiring. The certification process consists of three requirements: an active practice in either criminal appellate law or criminal trial law; excellent peer review references; and passing the certification examination.
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 nine board certified attorneys who work throughout the state. The committee first met in August 2014 to begin drafting the 2015 examination and to review initial and recertification applications. Over the next several months, the committee continued 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 assesses criminal lawyer’s fundamental knowledge of the law, analytical reasoning, and skill in applying knowledge to practical situations. On May 15 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 2015 examination. 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, 384 are currently board certified in criminal trial law and 51 are board certified in criminal appellate law. Fifty-eight attorneys applied to take the 2015 criminal trial law certification exam. Twenty-four of these applicants submitted “abbreviated applications” after either failure or nonattendance at the 2014 exam. Six attorneys applied to take the 2015 criminal appellate law certification exam. Two of these applicants submitted “abbreviated applications” after either failure or nonattendance at the 2014 exam. The committee also reviewed 75 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 to serve as chair of this committee for the past two years. This year’s committee, composed of Bob Norgard (vice chair), Judge Angélica Zayas (immediate past chair), Bill Ezzell, Jamie Kane, Ilana Marcus, Lisa McLean, Luke Newman, and Jessica Travis has been the best to work with. My big regret is that I have termed off and am ineligible to reapply to this important committee for the next few years. None of our work could have been accomplished without the best staff liaison a committee could have, Lindsey Blomberg. I thank everyone for all their hard work, lengthy conference calls, and great effort. I will miss you all.
Michael Salnick, Chair
Criminal Procedure Rules
The Criminal Procedure Rules Committee is comprised of members from all representative areas of practice including the judiciary, educators, prosecuting attorneys, and both publicly funded and privately retained criminal defense attorneys. The committee strives to incorporate various viewpoints by promoting discussion on numerous issues confronting criminal practitioners.
The Criminal Procedure Rules Committee consistently reviews legislative changes and case interpretations, as well as evaluates referrals from various persons and entities, to propose consistent amendments or new rules of criminal procedure. Additionally, the committee monitors all rule changes and their impact on the criminal procedure rules.
This year, the committee filed its three-year cycle report, which proposed rule and form amendments as approved by the full committee and, as required by Rule 2.140, reviewed by The Florida Bar Board of Governors. It was proposed that the definition of lead counsel in Rule 3.112, Minimum Standards for Attorneys in Capital Cases, be modified to remove language prohibiting former prosecuting attorneys, who are otherwise qualified under Rule 3.112 from acting as lead counsel for defendants in death penalty cases. It was proposed that Rule 3.121, Arrest Warrant, add a requirement to attach a photograph to the arrest warrant, if easily obtainable, to assist in correctly identifying the party for arrest and during first appearance. Other minor changes include adding language to provide judges, at first appearance more information for determining conditions of release or bail.
The committee spent considerable time in response to the Florida Supreme Court’s request and decision in Hernandez v. State, 124 So. 3d 757 (Fla. 2012), proposing modifications to Rule 3.172, Acceptance of Guilty or Nolo Contendere Plea, dealing with immigration consequences of the plea. We reviewed the plea colloquies of states across the country as well as from federal court. The proposed amendments explain that immigration consequences are not restricted to deportation; require that the court offer the defendant additional time to consult his or her counsel to gather more information on possible immigration consequences; ensure that the defendant has discussed the possible immigration consequences with her or her counsel; and prohibit the trial court from requiring the defendant to disclose his or her legal status. The committee also suggested language in all colloquies to specifically inquire of the defendant, “Even if this plea were to subject you to deportation or other immigration consequences, would you still wish to enter into this plea today?” The committee believes that its proposed amendments state the law correctly, detail the possible immigration consequences, and are not intended to waive any ineffective assistance of counsel claim, but instead assist the trial judge in determining the voluntary nature of the plea.
Other rules discussed in the three-year cycle report are Rule 3.192, Motions for Rehearing, clarifying that correction of jail credit motions can be considered postconviction motions and thus not appealable through motions for rehearing; Rule 3.212, Competence to Proceed: Hearing and Disposition, clarifying that the court may retain jurisdiction, re-examine the defendant on a yearly basis, and/or set release conditions upon re-examination; Rule 3.220, Discovery, proposing to remove the distinction between civil practitioners and criminal practitioners in ability to obtain a subpoena duces tecum. Additional minor amendments were suggested for Rule 3.281, List of Prospective Jurors; Rule 3.300, Voir Dire Examination, Oath, and Excusing of Member; Rule 3.410, Jury Request to Review Evidence or for Additional Instructions; Rule 3.590, Time For and Method of Making Motions; Procedure; Custody Pending Hearing; Rule 3.984, Application for Criminal Indigent Status; and Rule 3.986, Forms Related to Judgment and Sentence.
The committee worked with the Appellate Court Rules Committee to resolve a conflict between the rules sets. The Florida Rule of Appellate Procedure 9.020(i) requires the entry of a “signed, written order,” while Rules 3.192, 3.800, and 3.850 permit motions for rehearing to be “deemed denied” if no ruling is entered within a specific number of days. The committees filed a joint, out-of-cycle report with the court to resolve the conflict.
The committee continues to work on proposed amendments for postconviction forms including creating a model form for motions to correct sentences under Rule 3.800(a). The committee is also considering rules outlining sentencing procedures when considering life sentences for juveniles; adding language to Rule 3.172(c) concerning the trial court advising the defendant on the issue of credit for time served when determining the voluntariness of a plea; and discussing “remote” testimony through the use of communication equipment.
My term as chair concludes this June, and I extend my thanks and appreciation to the dedicated members of the committee and especially to Heather Telfer, our attorney liaison, for all of their hard work and professionalism. This is a busy and hard-working committee, based upon the number of referrals and legislative and caselaw changes that necessitate rule revisions. I look forward to remaining an active member of this committee and in participating in the work that lies ahead.
Judge Samantha L. Ward, Chair
Diversity and Inclusion
The Florida Bar Board of Governors created the Committee on Diversity and Inclusion (CDI) as part of the Bar’s effort to heighten awareness and improve diversity and inclusion throughout the state of Florida. In its first year (2013-14), CDI was given broad objectives that required a multi-year approach. This year CDI made significant progress toward meeting these objectives by working in partnership with the Bar and its sections and committees, voluntary bar associations, and other groups dedicated to diversity and inclusion within the legal profession.
At the CDI’s midyear strategic planning session, we reviewed the significant progress we had made toward meeting our objectives and developed action plans designed to accomplish our remaining goals in the upcoming year:
• Diversity Monitoring — CDI worked with Mike J. Garcia, director of research, planning and evaluation for the Bar, to expand the diversity reporting section of the 2014 Economics and Law Office Management Survey. The new survey questions were based on the categories used by the ABA. The survey results will provide baseline numbers for population groups that have not been included in previous Bar member surveys. The same reporting categories can now be used by sections, divisions, and committees of the Bar, as well as local bar associations, law schools, and legal employers to monitor the success of their diversity efforts. CDI continues to work with the Bar to increase opportunities for voluntary self-reporting of additional diversity information by individual Bar members.
• CLE Speakers Bureau — CDI is working with the CLE Committee and the BLSE to design a pilot program to increase the diversity of CLE program presenters. We are also coordinating with the Florida Supreme Court Standing Committee on Fairness and Diversity to create an online directory of diversity training presenters, as well as speakers from diverse backgrounds for CLE presentations in all practice areas. We are using the ABA Diverse Speakers Directory as a model and seek assistance from the ABA in developing our program.
• Get Involved — CDI has identified best practices used by statewide diversity bars to promote members who seek leadership positions, including nominees for judicial nominating commissions, the judiciary, and Florida Bar appointments. Next year’s objective is to use this information to produce and disseminate training materials and information about leadership openings to voluntary bar associations, with the ultimate goal of demonstrably increasing diversity within the leadership of the profession.
• Diversity Leadership Grant Program — The Diversity Leadership Grant Program is a measure initiated by The Florida Bar to provide funding for voluntary bar associations and other groups to present events designed to increase awareness and training in the areas of diversity and inclusion. CDI assumed responsibility for this program last year and is in the process of expanding the program to encourage applications from smaller bar associations and from geographic areas that have not yet received grants. This includes simplification of the current grant application, special “mini grants” for smaller scale smaller voluntary bar associations that may be just starting diversity initiatives, and a limitation on repeat funding for annual programs that feature the same or similar content. Additionally, the CDI now specifically solicits applications for pipeline programs to mentor high school (and younger) students from underrepresented populations and is developing a model pipeline program that can be replicated throughout the state.
• Communications — Developing an effective communication system continues to present challenges to CDI’s goal to serve as the hub in the wheel of the Bar’s diversity efforts. CDI looks forward to becoming part of the Bar’s new social network and is making plans to use the network to collect and communicate diversity information, including developing a searchable master calendar of diversity events offered by various providers, such as voluntary bar associations, courts, law schools, and our grant recipients. Additionally, we are starting an “old school” grass roots communications system, which will assign committee members to serve as liaisons to communicate with voluntary bar associations and other organizations within their circuits.
• Annual Summits — CDI has been assigned the task of increasing communications and cooperation across the Bar by convening a regular summit of the Board of Governors; Florida Bar sections and committees; and voluntary and affiliate bar leadership to discuss and explore strategies to achieve diversity and inclusion. We will work with liaisons from each group to arrange annual summits to be held in conjunction with the annual meeting of these respective groups.
• Bar Sections — CDI also has the task of working with the Bar sections to encourage diversity and provide entry points for minorities. The CDI now includes members from every section of the Bar. These members serve as liaisons who will work with the sections to conduct voluntary surveys using the diversity questions from the 2014 Economics and Law Office Management Survey and to explore ways to increase the participation of lawyers from underrepresented populations. This past year the CDI communications with the Bar sections to identify a liaison to the CDI from each Bar section. The liaisons will also assist the CDI in obtaining information about diversity and inclusion efforts of the various Bar sections and communicate information regarding the various statewide diversity and inclusion efforts to the membership of the Bar sections.
• Work with YLD to Engage Minorities through its Law School Division — The CDI Committee member who serves as the YLD liaison has been appointed to the CDI law school subcommittee with the goal of fostering cooperation and coordination between our subcommittee and the YLD Law School Division.
Other projects include honoring the pioneers of diversity and to memorialize and celebrate the history of Florida’s diversity bars, still in the early stages.
The CDI is a uniquely inclusive committee. We currently have no limit on the number of CDI members and no dues requirement. As mentioned above, CDI draws members from every section of the Bar. CDI membership also includes members of the judiciary, representatives from law schools and universities, members of other Bar committees, and representatives from many statewide and local voluntary and affiliate bar associations. We welcome the participation of all individuals and groups that support diversity within the legal profession.
CDI’s executive council, the chairs of the CDI subcommittees, CDI Vice Chairs Khurrum Wahid and Chasity O’Steen, and Immediate Past Chair Kevin McNeill, deserve the credit for steering the CDI in its second year. On behalf of the entire CDI, we offer our highest gratitude to Rebecca Blackburn and the diversity initiatives manager, Arnell Bryant-Willis, who have been invaluable to the CDI.
Susan R. Healy, Chair
The Education Law Committee proposal was approved by The Florida Bar Board of Governors in fall 2000. The Education Law Committee is a substantive law committee of The Florida Bar and currently has 94 members. The scope and function of the Education Law Committee is to bring together education law practitioners, who work in-house for K-12 or post-secondary public and private educational institutions, who work for private law firms that represent educational entities, and who address educational issues on behalf of other governmental entities or students and/or their parents/guardians.
Attorneys practicing education law may address a variety of substantive areas of the law, ranging from construction and real estate, constitutional law, personnel, public procurement, the APA, to personal injury — all within the context of educational settings. The committee studies, analyses, and reviews recent developments in education law; keeps the members of the committee informed of significant developments in this practice area; and tracks and monitors proposed legislation that could impact the operations of clients of the committee members. As this year’s chair, I had a goal of continuing to provide relevant CLEs, of using technology to better serve the members of the committee, and to encourage the members to be actively involved in various activities/issues relating to our Florida Bar membership. Indeed, the committee actively participated in the discussions regarding proposed revisions to the comments to Florida Bar Ethics Rule 4-2.2, and the impact of such rule (and violations thereof) on attorneys practicing in the area of education law. I made a concerted effort to keep the committee members informed of Florida Bar special appointments and the requests from other committees for award nominations in hopes that the members of the Education Committee would apply for recognitions and/or appointments to which he/she was qualified.
Per the committee’s handbook, which was updated at The Florida Bar’s annual meeting in June 2014, the committee has three business meetings per year. During my chairmanship, the committee met on January 23 during The Florida Bar’s midyear in Orlando; via webinar on February 27; and hosts its final meeting on June 26 during annual meeting in Boca Raton. CLE seminars are an integral component of each meeting. The CLE course offered in January concentrated on recent developments regarding sovereign immunity and Florida’s Sunshine Law. The webinar offered in February was a full day CLE, with 11 different presenters, who concentrated on topics that would appear on the education law certification exam in March 2015. Additionally, written materials were provided to members of the committee on subjects such as copyright/fair use, federal grants and contract compliance, student rights and responsibilities under FERPA and other state and federal privacy laws. Those attending the CLE webinar were eligible to receive 7.0 general CLE credits and 7.0 education law certification credits. All of the materials were compiled into a booklet that is accessible to anyone interested in education law. Additionally, the committee hosted a CLE webinar regarding Florida’s Code of Ethics and the Commission on Ethics on November 14, 2014. The fourth and final CLE for the year will be offered at the final meeting on June 26.
The law firm of Carlton Fields Jorden Burt, Bar Liaison Tom Miller, and Vice Chair Mark Lupe deserve special recognition for their contribution to the committee’s efforts to expand the use of technology to better serve members of the committee. The committee was able to offer audio conferencing capabilities to those who could not physically attend the midyear meeting, and the webinars were hosted free of charge through the generosity of Carlton Fields Jorden Burt.
This year, the committee plans to issue two newsletters. The first newsletter, edited by Vice Chair Jason Fudge and Bob Harris, was published in January. The newsletter included articles on tenure reform, Broward’s Promise (reducing the school house to jail house pipeline), and instructional materials. We welcome articles on education law topics and encourage submission of articles for the newsletter that will be published in conjunction with the June meeting.
I greatly appreciate the opportunity to serve as chair of the Education Law Committee this year, and I thank each of the vice chairs for their support and efforts: Mark Lupe (CLE) and Jason Fudge (Publication). I am also thankful the assistance of others including Patria Lott, Tom Miller, and the IT staff at Carlton Fields Jorden Burt. I look forward to staying engaged with the committee’s efforts in the years ahead.
Kalinthia R. Dillard, Chair
Education Law Certification
Certification in education law continues to provide a great benefit to the public and the legal profession by education law remaining a certification area in Florida. Florida is the only state that has a specialty certification in education law. Because most education lawyers in Florida work in the public area, at K-12 school boards, the Florida college system, and the 12 public universities, having strong subject matter experts in this area is a great service to the students, parents, and public employees with whom we are daily involved. The public interest is also served because the general public, educational institutions, government bodies, and administrative and judicial officers have assurance that the persons practicing in education law with such certification are well qualified and peer reviewed.
Education law currently has 48 board certified members and eight applicants for the 2015 exam. The Education Law Certification Committee remains committed to bringing the education law certification committee total to 75 members in the next two to three years. Currently, education law is in its fifth year of existence and has steadily seen an increase in members. In 2016, a significant number of members will require recertification. The committee is taking appropriate steps to establish reasonable criteria for recertification in order to maximize retention of board certified members.
The Education Law Certification Committee annually reviews the existing requirements for the specialty to ensure that they reflect standards common to the area of education law and are also attainable. Most education law attorneys are public employees and are not at the salary levels more common to the private sector. This distinction highlights the importance of having a strong Florida Bar commitment to ensure that our public servants in the legal profession are provided the same opportunity for development, educational programs, and certification opportunities. The past several years, we have partnered with the Bar’s Education Law Committee and large private law firms, such as Holland and Knight and Carlton Fields to provide quality legal review courses in education law. For many of our public sector employees across the state with limited public budgets to support travel to CLEs and other Bar related functions, these review courses serve a dual purpose of preparing for the certification examination, while also providing much needed opportunities for CLE credit. The committee is confident that the CLE reviews helped to increase the number of certified lawyers in education law and will continue do so.
The certification examination, which was administered for the fifth time in March 2015, is fair and represents the high level of competence that an experienced lawyer, who is an expert in education law, should demonstrate. The examination passage rate is consistent with that of other specialties. Having education law as a certified area has contributed to making the substantive Education Law Committee stronger and more vibrant, and that committee now has implemented a Web-based newsletter that is published on a quarterly basis to provide very useful information to its members. In addition, at each of the committee’s four meetings throughout the year, CLE is presented ranging from three hours to an all-day seminar.
Members of the Education Law Certification Committee continue to make concerted efforts to stimulate and increase participation. This includes speaking at statewide meetings of community college and university lawyers, attending K-12 conferences, making presentations at every Education Law Committee meeting, publicizing the specialty in The Florida Bar News, writing to school boards and university presidents to encourage the support of these attorneys to pursue certification. Younger lawyers engaged in the practice of education law are showing considerable interest in certification. Also, some school districts are adding certification in education law as a desired credential in school board attorney position vacancy announcements.
Current board certified attorneys in education law express a strong level of interest in serving on the Education Law Certification Committee. As a relatively new committee, membership has been fairly stable with little to no turnover. The committee will have a few upcoming vacancies as members complete their second terms. There should be no difficulty in filling certification committee openings as they become available.
Certification in education law in Florida is a valuable resource to its members, members of The Florida Bar, public and private educational institutions in Florida, and the public at large.
Col. Dayton Michael Cramer, Chair
The Florida Bar states that the scope and function of the Eminent Domain Committee is to study and keep informed of recent developments in the field of condemnation of private property for public use by governmental agencies or private companies who have the power of eminent domain. The Bar states that the committee should keep the members of the Bar informed of developments of great significance in this field, maintain liaison with private companies and governmental agencies who have and use the power of eminent domain, and study and consider legislation, law or problems in the area of eminent domain law as developed by the committee or assigned by the president or the Board of Governors.
As in the past, this year’s 72 members of the committee approach eminent domain from varying perspectives. The committee is made up of both government employee attorneys and private practice attorneys. The private practice attorneys represent both government entities (and utilities) and land/business owners in eminent domain matters; exclusively government agencies in these matters; or exclusively land/business owners in eminent domain matters. Some of the attorneys practice exclusively in the area of eminent domain but many do not.
Perhaps mimicking the uptick in eminent domain matters as a result of the improving economy, this has been an active year for the committee. The committee has reestablished a newsletter after its absence for several years, taken a position in opposition to the proposed amendments to Rule 4-4.2 of the Rules Regulating The Florida Bar relating to communications with government officials, established an email exchange so members can communicate with other members, and honored one of the deans of eminent domain practice, Toby Prince Brigham, upon his retirement.
Committee Chair Barry S. Balmuth acknowledges with gratitude the hard work of the committee vice chairs: Dean R. DiRose, D. Tobyn DeYoung, Lorena Hart Ludovici, and Joel Settembrini. Several of the vice chairs have served the committee for many years. The vice chairs helped plan the meetings, obtain speakers, and sponsors, and introduced the speakers. The chair also thanks the co-editors of our newsletter, Carlos Kelly, Stan Chapman, and Heather A. Patchen, for their great work in reinstituting the committee newsletter and to everyone who made and will make presentations at our meetings. Further, the chair gives great thanks to our committee’s liaison with The Florida Bar, Dixey Teel, and her assistant, Jeremy Citron, who helped organize the resources for the meetings including projectors, podiums, etc., obtained CLE credit, and who were instrumental in setting up our email exchange. On behalf of the committee, the chair also notes the contribution of the committee’s liaison with The Florida Bar Board of Governors, Fred Douglas Franklin, and expresses appreciation for the interest of Florida Bar President Gregory W. Coleman in the committee’s work. The chair also expresses the committee’s appreciation of meeting sponsors, appraisers Calhoun, Collister & Parham, appraisers Calhoun, Dreggors & Associates, Inc., and engineers MEI Civil, LLC, who generously underwrote continental breakfasts and sodas for the meetings. Last but, certainly, not least, the chair thanks those committee members who regularly attended the meetings and members, too numerous to mention, who provided input regarding the proposed amendments to Rule 4-4.2 of the Rules Regulating The Florida Bar.
The committee’s October 17 meeting featured a presentation on the proposed amendments to Rule 4-4.2 of the Rules Regulating The Florida Bar by DeBora Cromartie-Mincey and Marion Radison of the City, County and Local Government Section of The Florida Bar, a discussion and vote on whether the committee should comment to The Florida Bar Board of Governors regarding these proposed amendments, a presentation on regulatory takings by David Smolker, a presentation on F.S. §73.013 and the Orlando Soccer Stadium made by Andrew P. Brigham, and a case law update presented by Heather A. Patchen.
vote at the October 17 meeting, it was unanimously agreed that the committee chair, with the assistance of the vice chairs, would synthesize the input of the committee members into a comment on the proposed amendments to Rule 4-4.2 to The Florida Bar Board of Governors. The vast majority of committee members expressing a view on the proposed amendments opposed them. Indeed, only one committee member voiced support.
The comment, which was dated November 4, 2014, noted that the committee is proud of the high level of professionalism that exists in the practice of eminent domain law and has largely not experienced issues with inappropriate contact between attorneys representing clients and government officials. Even the member who supported the amendments made sure to explain that he was not aware of any improper communications in an eminent domain matter.
The comment suggested that both right of way agents and government officials involved in decisions about the use and development or redevelopment of land are highly sophisticated and often know as much or more about the issues an eminent domain attorney would be communicating with them about. Thus, many of the concerns about attorneys potentially having an advantage when dealing with less sophisticated nonattorneys which, seemingly, is the basis for Rule 4-4.2, do not apply when the communication is with government officials.
The vast majority of committee members are concerned that the proposed amendments fly in the face of Florida’s long history of open government and will present cumbersome and unnecessary obstacles in the representation of their clients. The proposed amendments would even appear to conflict with Florida’s public records laws as attorney would, seemingly, have to obtain permission from a government attorney before even sending a public records request. The committee is concerned that the proposed amendment to Rule 4-4.2 may result in greater expense to clients and/or, because condemning authorities generally have to pay reasonable attorneys’ fees in eminent domain proceedings, condemnors, as attorneys will have to potentially expend time obtaining clearance for every communication with a government official. Moreover, committee members are concerned that property owners facing a taking may turn to nonattorney agents for representation, at least in presuit negotiations, as these agents would not face these encumbrances. This could result in negotiations and settlements that fail to address important legal issues. The use of nonlawyers has already occurred in land use matters ( e.g. , land use changes and zoning approvals) where landowners are often represented by nonlawyers and this trend will accelerate and extend to other areas including eminent domain if the proposed amendments are enacted.
In summation, from the perspective of the committee, the (albeit grammatically incorrect) expression “if it ain’t broke, don’t fix it” applies and, in the comment, the committee urged the Board of Governors to reject the proposed amendment to Rule 4-4.2.
Our January 23 meeting began with a presentation: The Best Laid Plans: Proposed Right of Way Acquisition by the Florida Department of Transportation by Jim Spalla, director, FDOT Office of Right of Way, Tallahassee. This presentation was followed by a lecture on the importance of advocacy in eminent domain practice by Toby Brigham and then a presentation of Reflections on Ethical and Effective Eminent Domain Practice by S. Cary Gaylord, S. William Moore, Brian P. Patchen, Andrew H. Schuster, Robert I. Scanlan, Linda F. Stein (Nelson), Charles S. Stratton, and H. Adams Weaver. The meeting concluded with the presentation of a plaque to Toby Brigham honoring his contributions to eminent domain practice.
The June 26 meeting is expected to include a presentation regarding issues of attorneys’ fees in eminent domain cases they have handled made by Jeff Cynamon, Brian Bull, and Toby DeYoung. John Little has also committed to update the committee on The Florida Bar’s rules on marketing. This meeting is the conclusion of a productive year for the committee.
The leadership of the committee is in good hands with Mr. DiRose taking over as chair, Mr. DeYoung, Ms. Ludovici, and Mr. Settembrini being reappointed as vice chairs and Ms. Patchen being appointed as a vice chair for the upcoming year.
Barry S. Balmuth, Chair
Family Law Rules
The Family Law Rules Committee started the new term with its continuing efforts to complete the longstanding project to create family law rules that are separate and independent from civil rules. This project, while initiated in concept back in 2010, has been the result of the work of volunteers over many long hours to review, revise, and craft a set of rules that can “stand alone” from the civil rules of procedure to avoid problems that regularly occur due to the current reliance on civil rules for family law practitioners. The committee has been very mindful of the enormity of this project, but also has been thoughtful of the need for consistency across practice areas when that can be accomplished in revising the family law rules. This project has entailed a careful review of all existing civil and family law rules and forms to determine what appropriate changes should be proposed. The subcommittee is now in the final phase of preparing the petition and formatting the rules for filing with the Florida Supreme Court.
The court approved all of the rules and forms presented as part of the three-year cycle report filed in 2014 (SC 14-236). In SC 13-1751, the Florida Supreme Court approved new rules for qualified and court-appointed parenting coordinators, for which our committee had previously filed comments.
One of the tasks of this committee is to review proposed rules from other practice areas or committees to determine how those rules impact the family law practice. In August 2014, our committee filed a fast-track petition with proposed Rule 12.451, dealing with the electronic appearances of parties or witnesses. This rule was subsequently approved without comments by the Florida Supreme Court in SC-14-1507. This rule change was precipitated by the conflict between Fla. R. Jud. Admin. 2.530 and the newly enacted Fla. R. Civ. P. 1.451, causing family law rules to quickly address this issue.
There are several other subcommittees continuing to work on a variety of issues, including some initial work on proposed rules related to the collaborative practice, in light of the pending legislation this session. The Mandatory Disclosure Subcommittee is studying some necessary revisions to the current Rule 12.285 and the corresponding forms that relate to mandatory discovery in family law matters. The subcommittee regarding Rule 12.902, Uniform Child Custody Jurisdiction Enforcement Act Affidavit is addressing some necessary changes to the form, given some recent rule and statutory changes. In response to the recently filed petition in SC 15-44, a new subcommittee was formed to review those proposed revisions to family law forms. In addition, the committee has had the continued opportunity to collaborate with Rules of Judicial Administration Committee and other rules committees on various issues that impact all areas of practice.
The Florida Supreme Court referred the issue of recording of family law matters and transcripts of those proceedings; a new subcommittee was formed to study this issue and the implications that are somewhat unique to family law matters due to the growing percentage of litigants in this area who are self-represented and do not have the means or knowledge to ensure that there is a record of family law proceedings. As the Florida Supreme Court has continued its message regarding the importance of the unified family courts initiative, the Family Law Rules Committee has also refocused its efforts in the subcommittee charged with addressing this issue by working with the liaison from the Supreme Court Family Steering Committee to help study information from a statewide perspective about how best to effectuate the goal of unified family courts across the state.
In addition to receiving referrals from the court, the committee has also recently received referrals from the 13th Judicial Circuit and the Sixth Judicial Circuit to review the local rules that have been enacted in those jurisdictions and determine if they implicate rule changes or issues across the state.
The Family Law Rules Committee has had another busy and productive year. We said goodbye to our long-time Bar staff liaison, Ellen Sloyer, as she started her new adventures in retirement, but we welcomed Greg Zhelesnik as our new right hand. As I conclude my year as chair, I thank all of the members of this committee for their incredible contribution of time, talent, and professionalism. Their dedication and commitment to the profession is remarkable and it has been a privilege to serve.
Elizabeth A. Blackburn, Cha ir
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, takes place at The Florida Bar’s Annual Convention on June 25 in Boca Raton. The objectives for the roundtable are to strengthen the relationship between the federal bench and bar and to improve practice before federal courts in Florida. The roundtable is a popular program providing an opportunity for the federal bench and bar to work together during an interesting and practical seminar. For years, federal judges, lawyers, law professors, and law students have enjoyed the interactive and informal encounters that occur during the roundtable. Very special thanks to Nikki Simon for her leadership and service in coordinating this great event.
As a gateway to the committee, its projects, and federal news, the committee maintains The Federal Corner on The Florida Bar’s website. Under the leadership of Brian Harris and Michael Caruso, the committee has continued to update The Federal Corner, which has served as the easiest and most cost effective way to communicate with our members, and even more, with all members of The Florida Bar. Posted to The Federal Corner are rule amendments, proposed changes affecting federal courts, announcements, and other news. In addition, The Federal Corner maintains links to proposed amendments to local rules, as well as federal rules of procedure, and lists sponsors who help support the committee’s activities.
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 Lawrence Goodman and Brett Barfield who work with The Florida Bar’s staff to update the guide.
This committee also works with the various federal bar associations across the state and other organizations whose purpose is to enhance and progress practice in federal courts. Committee members have covered several federal bar association meetings and events in and out of Florida. Special thanks to all the members who have spent their time and resources to get involved with the federal bar associations. For example, Vice Chair Stephanie Marchman has coordinated a leadership roundtable in Gainesville titled, A Cultural Revolution: Redefining Success in the Legal Profession, to discuss the importance of diversity in our profession.
But this year, the committee would not have completed any of its work without Lani Fraser, the committee’s liaison to The Florida Bar. Lani has shown enormous patience, diligence, dedication, and devotion to the Federal Court Practice Committee. As a longstanding member of this committee, I can personally attest that Lani’s leadership, support, and overall kindness has attributed to the great success of our committee. We are very grateful to have her as our Bar liaison.
John L. Badalamenti, Chair
Florida Bar Journal and News Editorial Board
The Florida Bar Journal and The Florida Bar News reach more than 95,000 members with timely articles about Florida law and the legal profession. The Journal and News are the premier sources for substantive law articles and information about Bar activities, events, and the legal community.
• The Florida Bar Journal — Celebrating its 89th year of publication, The Florida Bar Journal provides members with educational, scholarly articles related to Florida law. The magazine is published 10 times a year with combined issues in July/August and September/October. Some of the articles published this year included covered the following topics: the Foreign Corrupt Practices Act, condominium terminations, adoption of the Daubert standard in Florida, offshore account compliance, protection of digital footprints, estate planning, Medicaid lien reduction, legislative rule ratification, and judge-friendly briefs in the electronic age. In November 2014, the Journal published a special animal law issue, with topics that included prosecution of animal abuse, integrated animal court, dog bite law, pet trusts, and equine law. Ralph DeMeo, chair of the Animal Law Committee, served as guest editor of this special issue.
The Bar Journal also provides opportunities for sections to heighten their visibility by publishing practice-specific articles. Section chairs may appoint a column editor to solicit and vet articles for publication in the magazine, thereby creating a prime opportunity for section service.
The Florida Bar Journal Editorial Board is charged with reviewing feature article submissions in the magazine. In this peer review, the board takes into consideration the substantive law content, writing style, research, and topic originality of an article. Many board members are law review alums who have extensive experience writing and editing. Members with a passion for writing are encouraged to submit articles to the magazine. Submission guidelines are available on the Journal’s website. Prospective authors can also explore previous issues and find information regarding earning CLE credit for their published article.
This year, the annual Excellence in Writing Award was presented to David B. Weinstein and Andrew Patch for their February 2014 article, “Venue-Selection: A Trap for the Unwary.” The editorial board makes its decision based on an article’s quality, difficulty, and style. The winner will be featured in an upcoming issue of the News.
• The Florida Bar News — The News is written, edited, and produced by a staff of professional journalists and is published twice monthly. Since 1974, the News has provided members with topical information on trends, visions, accomplishments, key obstacles facing the profession, and association activities, including Board of Governors’ actions, legislation, CLE offerings, and official notices of court rules and the Rules Regulating The Florida Bar. The News strives to publish information that advances the education, competence, ethical practice, and public responsibility of Florida lawyers, and increase their awareness of the official and informal activities of their profession. The News has been lauded by Bar members for its editorial independence and has been acknowledged nationally as a model vehicle for information about association activities.
Both the Journal and News generate revenue through advertising, royalties, and subscriptions, thereby offsetting some of the costs of printing and postage. The News ’ classified pages serve as an essential placement service for the Florida legal market.
Additionally, both publications have a strong online presence. The publications are available both in print and on the Bar’s website at www.floridabar.org/journal and www.floridabar.org/news. Back issues, submission guidelines, advertising information, subscription information, and a searchable database of articles are all available on the Journal and News websites. The News is also available for tablets and smartphones as part of The Florida Bar’s mobile app.
The Florida Bar Journal and News have a tradition of excellence spanning nearly 90 years, and the editorial board and staff are committed to maintaining a standard of excellence for the Bar’s official publications. These publications are vital to Bar members as a means of staying current on all types of matters affecting their daily practices, as well as developments and trends in substantive law.
Pearl Goldman, Cha ir
Florida Registered Paralegal
The Florida Registered Paralegal 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. The Florida Registered Paralegal (FRP) program 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.
This year, the committee continued its efforts to increase awareness of the program. There are currently 5,011 FRPs, as of the date of this report. At last June’s Bar annual convention, the committee had its first exhibit table where members and staff were present to promote the program, hand out pamphlets, applications, and answer questions. The committee along with the paralegal section of the Orange County Bar Association hosted a reception at its midyear meeting in Orlando in order to give more FRPs an opportunity to be able to attend a committee meeting and meet its members.
The committee also addressed some sections of Rule 20. The committee voted to recommend rule changes to sections relating to supervising attorney in order to expand its definition to include authorized house counsel, military attorneys, and foreign consultants. The committee also recommended reviewing the continuing education policy.
Additionally, the committee considered the comments that were solicited from the FRP Corner, a section of the Bar News. It was suggested to start a newsletter for paralegals, and the committee voted to start an electronic newsletter dedicated to paralegal issues.
As chair, I extend my gratitude to all committee members, which include Vice Chair Margaret Averill, Jami Coleman, Patricia De Ramus, Lori Spangler, and Wendy Toscano, and The Florida Bar staff who have worked very hard this year. I look forward to next year being even more productive.
Thomas Jerla, Chair
Health Law Certification
The area of health law certification was approved by the Florida Supreme Court in 1995, and there are currently 126 certified health law attorneys in the state.
The practice of health law encompasses many different areas of the law, separated into four main focus areas: federal and state fraud and abuse (including contract law, civil and criminal penalties, Foreign Corrupt Practices Act, federal exclusion and debarment, tax law); provider regulation (including health facility and provider licensure, certificate of need, certification and accreditation, provider disciplinary and reporting, administrative law and procedure, credentialing and peer review; institutional operations and patient care (including patient rights and consent, HIPAA, bioethics, advance directives, medical staff due governance and bylaws, risk management); and clinical integration and health care reimbursement (antitrust, managed care issues, Medicare/Medicaid, integrated delivery systems, health care acquisitions and transactions); and ethics related to each of these main focus areas.
To qualify for the health law certification exam, attorneys must be a member of the Bar for five years, be engaged in the full-time practice of law, and be substantially involved (at least 40 percent) in the specialty of health law. Attorneys seeking health law certification must also complete at least 60 hours of advanced continuing health law legal education in the three years immediately preceding application and pass a stringent peer review process and examination. All currently certified attorneys must apply for recertification every five years. Attorneys interested in applying for board certification in health law may find the application, standards, and committee policies on The Florida Bar’s website.
In addition to 56 multiple-choice questions, the examination includes a required essay question on the topic of fraud and abuse. Applicants are then required to complete one essay on provider regulation, one essay on institutional operations and patient care, and a final essay on integration and reimbursement.
For the 2014-15 certification year, the committee reviewed 17 initial applications for certification. Of those initial applicants, 16 sat for the exam administered in May in Tampa. The committee also reviewed 15 recertification applications.
The committee met in person twice to review applications and to draft the examination. The committee will meet in person to grade the health law certification examination in June. In addition to the in-person meetings, members devoted many hours of their time to perfect and review examination questions, as well as to consider individual applicant issues that arose during the year.
The committee extends thanks to our Florida Bar staff liaison, Xiomara Gonzalez. Members of the Health Law Certification Committee include Vice Chair Craig Smith, Erin Aebel, Radha Bachman, Charmaine Chiu, William Eck, Joshua Kaye, and Steven Resnick. Many thanks for their diligence, professionalism, and commitment to upholding the high standards of this section.
Vivian Menge Gallo, Chair
Intellectual Property Law Certification
The Intellectual Property Law Certification Committee is pleased to report that six attorneys became board certified in intellectual property Law following the exam on May 15. The pass rate for the exam was 86 percent.
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 worked diligently to prepare for the 2015 exam, which was administered on May 14 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 2010 need to apply for recertification. The recertification application currently is available online for download 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 Julie Coiro at (850)561-3143 or by email at [email protected]
This year’s Intellectual Property Law Certification Committee was chaired by Rick Fee, with Ury Fischer serving as vice chair, and consisted of members John Fulton, Janet Moreira Gamble, Brian Gilchrist, Jerold Schneider, Jeanne Seewald, Mark Terry, and Heather Vargas.
Richard E. Fee, Chair
Immigration and Nationality Law Certification
As chair of the Immigration and Nationality Law Certification Committee, I thank the work of our committee leadership and members. The 2014-2015 committee includes Vice Chair Gina Polo, Carmen Arce, Elizabeth Blandon, Kari Fonte, Jennifer Roeper, Alan Seagrave, Alex Solomiany, and Tulio Suarez. Each year, the committee works with the help of our staff liaison, and we cannot thank Lindsey Blomberg enough for her assistance and dedication to seeing the timely preparation of a new examination. Although this is Lindsey’s first year with our committee, she has done an outstanding job and has helped each of the members meet our assignment objectives.
We also recognize the many board certified attorneys who acted as pre-testers by giving their time to review the questions that the committee prepared for use in the 2015 examination. The pre-testing 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 pre-tester if requested.
In an effort to keep pace with trends in test preparation and examination review, David Stoller, Gina Polo, and Tulio Suarez attended the 2014 BLSE Leadership Conference and Exam Workshop in Orlando in October 2014. Our participation in this event has assisted the committee in understanding and implementing the policies that the BLSE has set to assure uniformity in board certification testing and examination assessment.
During 2013-2014, 16 attorneys applied for board certification and 13 were selected to sit for the examination. Five new attorneys achieved board certification as a result of the 2014 examination.
During 2014-2015, 21 attorneys applied for board certification and 18 were selected to sit for the examination. Grading was in April and the results announced by the Bar by June 1.
As of the publication of this report, 70 attorneys throughout Florida (and D.C.) are board certified in immigration and nationality law. The committee welcomes new applicants for board certification and is pleased to have received over 20 applications this year. 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 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.
David Stoller, Chair
International Law Certification
This was an interesting and challenging year for the International Law Certification Committee. Its work focused in three areas, each of which was a continuation of initiatives that had been started in previous years but which required significant efforts in the 2014-15 year as well: Development of rule amendments to permit the creation of a subspecialty in international litigation and arbitration; further work to review and, where appropriate, improve the certification examination; and expand promotional efforts intended to make more potentially qualified attorneys aware of the professional benefits of board certification in international law.
International law continues to be relatively unique, in that it typically requires both expertise in another specialty area as well as understanding and being sensitive to the unique issues that are created when the laws of another national jurisdiction may apply or otherwise affect the outcome or the strategy for achieving a desired outcome. This has created a number of practical issues that affect the content of the certification examination and, most recently, the modification of the rules to permit and facilitate the subspecialty in international litigation and arbitration. For example, one of the issues is the extent to which testing for qualification in the international litigation and arbitration subspecialty area should include questions that address issues relating to international business transactions. This issue was addressed in the deliberations leading to the creation of the subspecialty in international litigation and arbitration, and it was addressed in developing the rule amendments and examination specifications.
• Subspecialty in International Litigation and Arbitration — Development and adoption of this subspecialty has been a goal not only of the International Law Certification Committee, but also of the International Law Section and a number of practicing litigators and international arbitrators for some time. After the BLSE determined that international litigation and arbitration would be a subspecialty in the field of international law, rather than a separate certification area, the committee worked with a number of practitioners in international litigation and arbitration — many of whom were not already board certified in international law — to develop rule amendments to reflect this subspecialty. The process included numerous drafts and conference calls over a period of more than six months but led to a set of amendments, which the committee considers acceptable and appropriate. The amendments were to be finally ruled on by the BLSE at its April meeting in Tampa. Assuming the BLSE rules in favor of the amendments, a team of practitioners has already volunteered to assist in creating and grading the questions on the certification examination that will be addressed to candidates for certification in this new subspecialty area.
• Modifications and Improvements to the Certification Examination — This has also been an ongoing project. The committee, with the helpful assistance of Karen Barbieri, the examination specialist engaged by the BLSE, has continued to review and revise examination questions which for whatever reason (too complex, too suggestive of the proper answer, too lengthy, etc.) were inappropriate. Questions were assigned to individual committee members for initial review and, when appropriate, revision, and then assigned to a second committee member for further review. At the same time, the examination specifications were refined to assure that the various areas of knowledge deemed necessary for a specialist in international law were appropriately covered in the examination. The revised questions were re-submitted to Ms. Barbieri for review. As a result, the committee is confident that its examination is well-designed and appropriate for testing expertise in international law.
• Expand Promotional Efforts — One of the continuing concerns of the committee has been the number of qualified practitioners who for whatever reason have not pursued board certification. The committee decided in the 2013-14 year to identify potentially qualified practitioners (for example, through the International Law Section and similar professional organizations) and discuss the benefits of certification with them. That process led to the realization that some were uncertain about the certification standards and the nature of the examination. As previously mentioned, one of the steps taken by the committee was to review and clarify the examination specifications. Another was to develop sample examination questions, which candidates can review in order to become a little more comfortable with the structure and content of the certification examination. These efforts are starting to show success. Six applicants (of eight initial applicants) sat for the certification examination in 2014, and six applicants (of nine initial applicants) sat for it in 2015. In additional, 16 currently certified attorneys recertified in 2014.
I cannot close without expressing my strong appreciation to the committee members for their efforts and support. The members are Melissa Rico Ferrari, who is vice chair and practices in Germany, Scott Allen Burr of Coral Gables, Jennifer R. Diaz of Coral Gables, Margarita P. Muina of Miami, Felicia Leborgne Nowels of Tallahassee, Penelope B. Perez-Kelly of Orlando, Thomas L. Raleigh III of Orlando, and Pamella A. Seay, my predecessor as chair of the certification committee, who practices in Port Charlotte. My thanks go as well to Zach Shrader, our committee liaison to The Florida Bar, for his tremendous enthusiasm and support.
Dixon F. Miller, Chair
Judicial Administration and Evaluation
The Judicial Administration and Evaluation Committee focuses on obtaining and retaining qualified judicial officers. The committee has developed various programs for achieving that goal, including programs that educate the public about judicial candidates in merit retention and judicial elections. The most well-known program is the biannual merit retention poll that provides attorneys an opportunity to fulfill their responsibility to express their opinion as to whether incumbent judicial officers they appear before are qualified for the offices they hold. The Judicial Candidate Self Disclosure Statements also provide the public an opportunity to assess circuit and county judicial candidates’ qualifications. As a result of the extraordinary efforts of the committee’s Bar liaison, Doris Maffei, 70 percent (circuit court) and 66 percent (county court) of the judicial candidates submitted disclosure statements for the 2014 election cycle. This JAEC program is only in its third year and has been very successful with more than 180,400 hits on the Bar’s website prior to the 2014 elections.
The committee also oversees the Judicial Feedback Program, which asks attorneys to provide feedback directly and confidentially to judges. Attorneys evaluate the judge’s demeanor, knowledge, fairness, and other factors, but do not discuss issues related to their specific cases. Each commenting attorney’s identity is kept confidential, and the comments are provided only to the judge who is the subject of the review. In addition, all feedback is and remains confidential and exempt from public records laws pursuant to Fla. R. Jud. Admin. 2.051(c)4. Forms are available online and can be submitted via mail or online.
Judges are encouraged to use the feedback for self-assessment and self-improvement, which ultimately improves our judiciary as a whole. Because the program serves a vital purpose but is seldom used, the committee made increasing participation a primary focus this year. The committee took a three-pronged approach to improve participation. They continued examining the causes of decreasing participation, took immediate action to educate attorneys and judges about the program, and started developing a long-range plan for increasing participation that included assessing how other states encourage participation in similar programs.
To identify the primary reasons for minimal participation, the committee surveyed the chief justice, chief judges, other circuit judges, and attorneys regarding the program. While the majority of those contacted recognized the value of the program, the following concerns were regularly mentioned: 1) Many lawyers and new judges were not aware of the program; 2) many lawyers were concerned that judges would identify them based on the nature of the comments they provided, especially in smaller circuits where judges often see the same small group of trial attorneys on a regular basis; and 3) some judges and attorneys questioned whether the feedback forms should be handed out by judges at the end of a proceeding because of the questionable perception that method of distribution created.
The committee recognized that these concerns threaten the program’s effectiveness and saw the need to take immediate action. The committee reinitiated an educational campaign that included an article (about the feedback program) and advertisements in the Bar News and letters to the chief judges. The committee determined that these initiatives should be repeated on a regular, and at a minimum on an annual, basis. In addition, the committee identified other ways it could spread the word about the program in the future, including regular emails to attorneys, placing information about the program in voluntary bar newsletters and making presentations at the annual Voluntary Bar Leaders Conference and judicial conference and section meetings. The committee recognized the importance of having a committee representative to spread the word about the program in each circuit as well.
To address concerns regarding confidentiality and other procedural issues, Vice Chair Judge Ross Goodman took the lead in researching other states’ judicial evaluation programs. He reported to the committee that 18 states have an official judicial performance program and that the programs generally fall into three categories depending on their use: 1) promoting judicial self-improvement; 2) enhancing the quality of the judiciary as a whole; and 3) providing relevant information to those responsible for electing or voting on judges.
The purpose of Florida’s judicial feedback program is judicial self improvement, but the committee examined a variety of programs with multiple feedback uses to develop ideas for boosting participation. Florida Bar Governor and committee Liaison Lanse Scriven had studied Arizona’s judicial evaluation program and invited Arizona Supreme Court Justice Ann Scott Timmer to speak about it at the January meeting. Court of Appeal Court Judge Patricia Norris joined her. Arizona, where appellate judges and some trial judges are subject to merit retention elections, has a commission with up to 34 members that is responsible for blindly reviewing survey results from attorneys, jurors, courtroom personnel, and witnesses. Based on the survey results, the commissioners vote on whether the judge is qualified and the result of the commission’s votes are published to the voters. Almost all judges are found by the commission to meet judicial standards. Each judge also has three commissioners meet with him or her for an individual and confidential evaluation based on the survey results.
The key to avoiding confidentiality concerns in Arizona appears to be use of the intermediary commission that meets with each judge to perform an evaluation. The JAEC Committee continues to explore whether the use of an intermediary in Florida’s evaluation process is feasible in light of applicable public records laws and the required resources.
Even after removing confidentiality concerns, Justice Timmer reported that Arizona is struggling to encourage program participation in a way that does not appear self-serving or intimidating. Those concerns persist in Florida as well and committee member Harry Coe is leading the charge to address them. Mr. Coe is investigating whether the e-portal system could include an automatic reminder or a link to the feedback form when a notice of final disposition is sent to the attorneys of record. Such a reminder would eliminate the need for judges to encourage completion of the evaluations as well as increase awareness of the program overall.
Under the leadership of incoming Chair Judge Goodman, the committee will continue with these and other efforts to increase participation in the Judicial Feedback Program in the upcoming year. As it does so, the committee will also monitor whether increased participation renders the program more effective.
Kelly O’Keefe, Chair
Judicial Nominating Procedures
Historically, the purpose and mission of this committee has been to assist the governor and the judicial nominating commissions (JNCs) in performing their duties under Fla. Const. art. V, §11 and under F.S. §43.291. The committee has provided assistance with the training of commissioners and in the organization of and support of the JNC uniform rules conventions. The committee continues its efforts to keep commissioners apprised of any new legislation, rules, or court decisions that may affect their duties and will offer support to the governor’s office.
• JNC Training — New commissioners are required to go through a training program within the first 12 months of appointment. Training includes segments regarding interviewing techniques and diversity sensitivity. The last training was held on October 25, 2013, at the historic capitol and was sponsored by the governor’s office. Featured speakers included former general counsels to the governor, current or former JNC commissioners, and an expert on public records/sunshine laws. A video of the half-day program is posted to the governor’s website. Planning for the next training is in the offing but no date has been announced.
• Lack of Diversity on the JNCs and in the Judiciary — Past President Eugene Pettis appointed a special task force last year to study ways to increase diversity on the bench and on each JNC to be more reflective of our communities. More ways are needed to increase the applicant pool for the JNCs, which ultimately should result in more diverse appointments to the bench.
The special task force submitted a report and recommendations to the Board of Governors. Our committee has been requested to come up with suggestions on how best to implement those areas within our purview. Two new subcommittees were appointed to provide guidance and advance some of the recommendations.
• New Subcommittees —
• Task Force Subcommittee: This subcommittee ensures that members of the Bar and the public are aware of the JNC process. The focus is to ensure transparency; how to get a more diverse applicant pool; and how to dispel any wrong perceptions of the JNC process. Three natural breakout groups were identified: education, perceptions of the JNC process, and outreach efforts of the JNCs.
• Education: This subgroup concentrates on three groups: Bar members, the public, and the JNC members. Others to be considered are voluntary bars, law schools, law related education, CLEs, JNPC/JNC public speaking events, and the judicial application process. An educational document could be created to explain the JNC process and then be customized for different groups.
• Perceptions of the Selection Process: This subgroup goes well with the education process and the outreach efforts. promoting transparency we hope to identify the myths about the process and recognize how diverse groups perceive things differently.
• Outreach Efforts for JNCs: This subgroup works on short-term and long-term goals. The short term would be to have a consistent document to educate the public and determine how best to get it out, i.e. , social media, etc. Part of the long-term goal is to create strategic planning to outreach liaisons to each JNC.
• Constitutional Revision Subcommittee — This subcommittee will be considering relevant provisions in the Florida Constitution and the Florida Statutes relating to the merit selection process and judicial nominating process. The Constitutional Revision Commission, which meets every 20 years, is composed of 37 members: 15 appointed by the governor; nine appointed by the speaker of the house; nine appointed by the president of the senate; three appointed by the chief justice of the Florida Supreme Court and the attorney general. Florida is the only state that has this provision in their state constitution. This subcommittee is divided up into three subgroups: Art. V, §§8, 10, and 11 (appellate courts) — dealing with vacancies, eligibility, and retention elections; Art. V, §§8, 10, and 11 (trial courts) — dealing with vacancies, eligibility, and elections; and Art. V, §20 and Ch. F.S. §43.291 — dealing with the composition and membership of JNCs.
A Board of Governors special task force was also appointed to monitor what other committees are doing to ensure that the recommendations from the president’s special task force are timely considered and moving toward solutions.
During our June meeting, the committee will discuss and consider items from both subcommittees for action and further study.
• Highlights — Highlights of this year have been the presentations from two featured speakers to the committee. The first was Thomas Spencer from Miami who discussed judicial selection and retention in Florida: why it’s not working and his suggestions for a statewide discussion on the subject and a plan of action. He has accumulated a wealth of information on the subject, which can be found on his website: www.facebook.com/floridajudicialselection.
The other featured speaker was Martin Dyckman, retired columnist/associate editor of the St. Pete Times. He outlined the history of merit selection: how it began; what the initial judicial nominating process was; and what the process is now. A timetable of events that contributed to the adoption of merit selection of judges was discussed.
The committee’s historic purpose of assisting JNCs in meeting their obligations to the citizenry of Florida continues. We will work with and assist the governor’s office as needed with the JNCs in our efforts to provide service to the Bar and the people of this state.
The chair recognizes the outstanding members of the committee who engage in collegial, frank, and articulate discussions to better the JNC process. Governors’ counsel through the years have played an essential role in the deliberations of the committee. Each of them has provided a unique perspective and their collaborative efforts have been appreciated. The Bar’s leadership (presidents and liaisons) has been available and accessible and real partners in the committee’s success. Finally, the Bar’s professional staff has provided the committee with the resources necessary to “get the job done,” and we have been blessed with their efforts.
Michael R. Band, Chair
Juvenile Court Rules
The members of the Juvenile Court Rules Committee all practice in juvenile court: dependency, delinquency, or both. They bring many different perspectives to the group, including the judiciary, court clerks, prosecutors, defense, and guardians and attorneys ad litem. This year, as every year it seems, the members have been quite busy.
The committee’s three-year cycle report was filed with the Supreme Court in SC 15-98. Because the legislature modifies the statutes governing dependency and delinquency practice annually, thus, necessitating annual out-of-cycle changes, our cycle report was not lengthy. We are requesting the court amend two delinquency rules concerning pleas and waiver of counsel, approve a new set of rules governing truancy, and amend two dependency rules governing evidentiary proceedings concerning the child’s other parent after the child has been adjudicated dependent due to the actions or omissions of one parent and placement changes after an initial adjudication of dependency and disposition. Finally, the committee is requesting the deletion of two forms that are viewed as unnecessary.
The committee filed a much larger legislative fast-track report with the court in SC 15-150, incorporating the requirements of a number of new laws into the dependency rules. These include a new rule governing appointment of counsel for certain categories of children in dependency proceedings and modifications to existing rules governing permissive or limited appointment of counsel affected by the new law. This report also incorporates new requirements for shelter proceedings, dependency petitions, and judicial review hearings, including the removal of certain disabilities of non-age. These additions and modifications also necessitated changes to numerous forms.
The delinquency subcommittee worked on extensive changes to Rule 8.150, which is proposed to distinguish the procedures governing direct and indirect contempt of court. This report is being submitted as an out-of-cycle report to the court without any comments after publication.
The committee has been awaiting word from the Supreme Court for a request to address possible rules dealing with incompetency of counsel in termination of parental rights actions. A case is currently pending before the court dealing with this issue; oral argument was conducted in February. Jeffrey Dean has agreed to chair an ad hoc committee comprised of members from both delinquency and dependency should the court refer this matter to our committee.
Ward Metzger, the dependency vice chair, has initiated a project to review all the dependency rules to ensure consistency in terminology, ensure conformity with the existing state of the law, and remove any obsolete rules or forms. This is a large project to be carried over through the next year. The recommendations from this work will be included in the next three-year cycle report.
Rob Mason, currently the delinquency vice chair, will serve as our incoming chair for the next Bar year. Rob has been instrumental in ensuring the smooth running of this committee. The committee will be in good hands.
Of course, none of the work could be accomplished without the dedication and hard work of all the committee members. The out-going chair thanks the members for the many hours they devote to this work, their good humor, and their overlooking the idiosyncrasies of their chair. I am honored to have worked with each of them, and am grateful for their support throughout this year.
The Bar liaison is crucial to keep everything on track. We were saddened by the departure of Ellen Sloyer, who has been this committee’s liaison for 31 years. She will be sorely missed. Thankfully, we are fortunate in welcoming Gregory Zhelesnik as the committee’s new attorney liaison. Greg hit the ground running!
I will be term-limited off this committee, but know that it is in good hands, and will continue to serve the needs of all parties to the juvenile court systems, particularly the children who are the subjects of these proceedings.
Deborah A. Schroth, Chair
Labor and Employment Law Certification
The area of labor and employment law certification was approved by the Florida Supreme Court in 2000, and there are 199 certified labor and employment law attorneys.
The practice of labor and employment law encompasses advice and representation concerning the application and interpretation of public and private sector labor and employment law principles, as well as employment discrimination and employment-related civil rights law.
To qualify for the labor and employment law certification exam, attorneys must be a member of the Bar for five years, be engaged in the full-time practice of law, and be substantially involved (at least 50 percent) in labor and employment law. Attorneys seeking labor and employment law certification must also complete at least 60 hours of advanced CLE of approved labor and employment law credits and pass a stringent peer review process. All currently certified attorneys must apply for recertification every five years. Attorneys interested in applying for board certification in labor and employment law may find the application, standards, and committee policies on The Florida Bar’s website.
In addition to 100 multiple-choice and 40 short-answer questions, the examination includes a required essay question in the area of employment discrimination. Applicants are permitted to choose one of three of the remaining categories of traditional labor, hybrid, and miscellaneous/individual rights to complete the essay portion of the exam.
For the 2014-15 certification year, the committee reviewed 14 initial applications for certification. Of those, nine sat for the exam administered in March in Tampa. As of this writing, the final exam grades have not been approved by the Board of Legal Specialization and Education. The committee also reviewed 16 recertification applications.
The committee met in person three times to review applications and to draft and grade the examination. In addition to the in-person meetings, members devoted many hours of their time to perfect and review examination questions, as well as collaborate over conference calls.
The committee extends thanks to our Florida Bar staff liaison, Xiomara Gonzalez. Members of the Labor and Employment Law Certification Committee include Vice Chair Cathleen Bell Bremmer, Don R. Boswell, James M. Craig, Mary Li Creasy, Eric K. Gabrielle, David Harvey, Damon Kitchen, and M. Sean Moyles. Many thanks for their diligence, professionalism, and commitment to upholding the high standards of this section.
Kathryn S. Piscitelli, Chair
Law Related Education
The Law Related Education Committee is wrapping up a successful Bar year pursuing its purpose of 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 and for people and their property. The committee 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.
• Moot Court and Mock Trial — The Moot Court and Mock Trial Subcommittee teamed again with the Florida Law Related Education Association, Inc. (FLREA). The subcommittee’s primary role is preparing the materials for the Florida High School Mock Trial Competition, which concluded in March, as well as the moot court competition, which culminates in May at the Florida Supreme Court.
This year the subcommittee, led by Jeffrey Hammer prepared the mock trial materials for the fictional case of Sanders v. Everglade Computers, Inc. and Chartech Tech Services, Inc. Harper Sanders, is currently a high school student attending Palm County High School and is a resident of Palm County of the State of Florida. The defendants, Everglade Computers, Inc. and Chartech Tech Services, Inc., are legal corporations incorporated within the state of Florida. During the fall of 2013, the defendants produced a computer software program and laptop computer with a webcam installed. Plaintiff purchased a laptop from defendants. Unbeknownst to the plaintiff, and without her/his permission or consent, defendants, through their indiscriminate use of and ability to remotely activate the webcams, used the computer webcams and other means, including but not limited to password and account access to spy on the personal activities of the plaintiff at her/his home thereby invading plaintiff’s right to privacy. The defendants never disclosed to plaintiff that Everglade and CharTech had the ability to remotely activate the webcam and capture images from any location, including the plaintiff’s personal residence. As a direct result of the spying, the plaintiff suffered injuries and damages as set forth in the cause of action that was filed. The jury entered a verdict in favor of plaintiff on both causes of action, and judgment was entered in accordance with the verdict.
The subcommittee then authored the materials for the High School Moot Court Competition. The subcommittee took facts and characters from the Sanders v. Everglade Computers, Inc. and Chartech Tech Services, Inc., mock trial competition case packet and created a fictional appeals case addressing the invasion of privacy under the Florida Constitution and interception of communication in violation of F.S. Ch. 934.
• Legal Guide for New Adults — The Legal Guide Subcommittee members, led by Deborah Brown, are completing the annual updates and revisions to the 2014 Legal Guide for New Adults. Future guides will be made current each fall following the legislative session and will then be distributed to high school seniors the following spring. The 2015 guide was distributed to approximately 194,000 seniors. The legal guide offers information and guidance on many issues new adults face, including contracts, the court system, voting rights, environmental responsibility, selective service, and texting while driving.
Deborah Brown is also heading up the effort to revamp the format of the guide. Several digital/interactive formats are being explored including a mobile app, video, game, etc. Linking together previous YouTube entries to creatively present different topics is another possibility. The plan for the Florida education system to go to all digital resources is another reason to move forward on a new format for the guide. The content needs to be brought to life. A proposal, once approved, will be compatible with both Apple and Android systems.
• YouTube Video Contest — Another task for the Legal Guide Subcommittee is the high school YouTube video contest, led by Stephanie Powers. Subcommittee members are reaching out to their respective area schools to encourage high school students to participate and compete in the fifth annual contest. The LREC has its own YouTube channel, and videos from the past four years are available for viewing. This year an extensive network of subcommittee members are actively discussing the program with various high schools. All Florida high school students are encouraged to make a video relating to the various parts of the Legal Guide for New Adults.
• Outreach and Development — The Outreach and Development Subcommittee, led by Richard Levenstein, is involved in coordinating with other committees, bar associations, and lawyers, to enhance the Bar’s efforts and continue to grow and improve the Bar’s programs. Justice Teaching is one of the Bar initiatives with which this subcommittee is involved. The program was established by Justice Fred Lewis of the Florida Supreme Court. For the second time, an award for the Justice Teaching volunteer and Justice Teaching Select Committee judge of the year will be given. A Teacher of the Year category has been added this year. These awards will honor a judge, an attorney volunteer, and a teacher for their dedication to bringing civic education to the children of Florida through Justice Teaching. This subcommittee is headed by Sheri Hazeltine, vice chair of the LREC. The awards will be presented at the Bar’s annual convention.
The Outreach Subcommittee is also drafting an outline and corresponding abstracts to propose a special issue of The Florida Bar Journal on civics and law-related education. The Florida Law Related Education Association, Inc., has recently celebrated 30 years of service and this issue will address the changing landscape of civics and law-related education in Florida and nationally as well as model programs unique to Florida. Highlights of recent research and polls addressing knowledge, trust, and confidence and other important indicators will be included, as well as highlights of the committee’s work. Richard Levenstein is leading the effort for the committee and Annette Pitts, executive director of the Law Related Education Association, Inc. (FLREA), and long-time member of the LREC, is drafting the abstract with input from the committee. Potential authors will be recommended and summaries of preferred articles and sidebars will be developed.
Ms. Pitts continues to pursue law-related and civics education for Florida students. FLREA puts an emphasis on the rule of law, the American legal system, and the institutions and practices of democracy. Numerous programs highlight civic content and methodologies to foster essential critical thinking skills, teaching students how to think, not what to think. Annette and her staff travel throughout the state and beyond providing training and programs for schools and students.
The Law Related Education Committee provides essential information, training, competitions, and support for Florida students and citizens. Thank you to all of our committee members for their truly valuable work and the difference they make. We encourage you to visit our committee website for more information and to get involved.
Dion Hancock, Chair
The Florida Bar Wm. Reece Smith, Jr., Leadership Academy was originally envisioned by immediate past Florida Bar President Eugene K. Pettis in 2012, after evaluating the Bar’s strategic plan and analyzing the landscape of Bar members available to meet the Bar’s long-term articulated goals. The Academy became an official program of the Bar when the Board of Governors unanimously approved its creation on February 1, 2013. Thereafter, the Academy was named in honor of Wm. Reece Smith, Jr., former Florida Bar president, ABA president, and International Bar president. The academy is a multisession training program designed to assist a diverse and inclusive group of lawyers in becoming better leaders within our profession, in their chosen path, while enhancing their leadership skills. At the heart of this program is the Bar’s belief that inclusion is the pathway to unity. Each year a select group of participants, known as “fellows,” are selected from applications submitted to the Bar. In an effort to achieve diversity and wide range inclusion among participants, qualified individuals are sought for fellowship from different backgrounds, large and small law firms, the private and public sectors, different practice areas, Bar sections and divisions, voluntary and specialty bars, and different geographical areas of the state.
The Leadership Academy Committee (LAC), is charged with overseeing the Academy, its fellows, and their curriculum and activities, and successfully completed its second year as a committee of the Bar. Fifty-nine fellows graduated from the inaugural Academy class in June 2014, and 60 fellows will graduate from the Academy Class II in June 2015.
Throughout the Academy program, the fellows follow a curriculum tailored to enhance their knowledge base and experience as leaders. This curriculum was designed and created by the Henry Latimer Center for Professionalism and then is administered by the LAC at the Academy meetings. Throughout the year, fellows have the opportunity to establish relationships with Bar leaders, including former Bar presidents, Board of Governors members, members of the judiciary, the LAC, as well as current Bar leadership, to learn more about the inner workings of the Bar and their role within the legal profession, while enhancing their personal leadership skills. Networking is a significant part of the Academy, wherein the fellows develop relationships that will last long after their Academy year. It is the hope of the LAC that the skills the fellows learned will benefit the Bar, their local voluntary or specialty bar associations, their firms, their communities, and the public. During this Bar year, the fellows also undertook to design a service project related to legal initiatives prompted by President-elect Ramón Abadin.
The Academy currently encompasses two branches, the north branch, co-chaired by Michael Faehner, which encompasses the First, Second, and Fifth DCA areas, and the south branch, co-chaired by Juliet M. Roulhac, which encompasses the Third and Fourth DCA areas. Each branch meets approximately every other month, in either full or regional meetings, for a total of six mandatory meetings per year, plus graduation. The class II fellows commenced their one-year program at the 2014 Annual Bar Convention in Boca Raton. Thereafter, they met in July in Bonita Springs in conjunction with the Voluntary Bar Leaders Conference. The fellows attended the fall meeting of the Bar in Tampa, as well as regional meetings in November in Jacksonville and Ft. Lauderdale, and they attended meetings in Tallahassee with the Board of Governors and the Florida Supreme Court in January, with regional meetings in March in both Orlando and West Palm Beach.
Since its inception, the Academy has received a tremendous amount of support from Bar leaders, sections, and divisions, and the Bar in general. This support has come in the form of nominations for fellows, along with scholarships for selected fellows to attend Academy meetings. In particular, the Young Lawyers Division, the Business Law Section, the Trial Lawyers Section, Family Law Section, and the RPPTL section all generously supported the Academy with scholarship contributions for fellows during its second year. We also received corporate sponsorship from Florida Mutual Insurance Company, which has been an invaluable partnership. It is because of this incredible support that we have already seen the fruits of our efforts in the accomplishments of our inaugural fellow graduates who have gone on to involve themselves in leadership roles within the Bar, the legal profession, and the public sector. We have much to be proud of when seeing their accomplishments as a class.
As the Leadership Academy Committee looks back on its year with the class II fellows and undertakes its work in preparation for class III, I thank each of the members of the LAC for their hard work and commitment to the success of this program. In particular, a special thank you is owed to my co-chair for the north region, Michael J. Faehner, and my co-chair for the south region, Juliet M. Roulhac, for their outstanding efforts in leading their respective branches. I thank our meeting team coordinators, Liz McCausland, Sean Desmond, Melanie Griffin, Burnadette Norris-Weeks, Larry Smith, and Sia Baker-Barnes for their outstanding contributions designing our sessions. I also recognize the exceptional work of our program coordinator, Arnell Bryant-Willis, diversity initiatives manager for the Bar, and her right-hand person, Rebecca Blackburn, as well as Linda Calvert Hanson and Jacina Haston of the Henry Latimer Center for Professionalism, for their efforts in creating and implementing a model curriculum for the Academy. We are also grateful to Francine Walker, communications director,, and Danny Aller, social media coordinator, for their assistance with media efforts. And finally, I recognize the commitment of Florida Bar President Gregory W. Coleman to the Academy. President Coleman carried the vision of the Academy with purpose, and through his work with our fellows and the LAC, enhanced its contributions to our Bar, the legal profession, and the public. It will solely be through the efforts of these outstanding individuals that the Academy will continue to succeed in its mission. It is has been my privilege and honor to work with each of the fellows selected, the Bar and the members of this outstanding committee.
Renee E. Thompson, Chair
Legal Needs of Children
The Legal Needs of Children Committee was created to develop innovative and practical ways to carry out the recommendations of The Florida Bar Commission on the Legal Needs of Children. In June 2002, the Commission on the Legal Needs of Children released a final report that made recommendations in five priority areas of practice in delinquency and dependency courts. The five areas included: representation; treatment and services; confidentiality; education and the role of The Florida Bar; and technology and the courts. The 2014-2015 Legal Needs of Children Committee is comprised of 40 members who dedicate their years of experience to help Florida youth.
This year, the Legal Needs of Children Committee consisted of four substantive subcommittees: 1) juvenile justice systems; 2) commission recommendations; 3) certification; and 4) advocacy. The efforts of the four subcommittees have touched the lives of children and families at a state, national, and international level.
• Juvenile Justice Systems Subcommittee — The focus of the Juvenile Justice Systems Subcommittee is to identify policy issues that may impact the systems of delinquency court and the children who appear in delinquency court as respondents, victims, or witnesses. This subcommittee has examined the “school to prison pipeline” and its relationship to school suspensions and expulsions. In the context of the final report of The Florida Bar Commission of the Legal Needs of Children, the Juvenile Justice Systems Subcommittee also has worked on the confidentiality of juvenile arrests and the ability of private employers to secure juvenile arrest and court records.
• Commission Recommendations — This subcommittee was initially formed to review and prioritize the commission recommendations. This year the Commission Recommendations Subcommittee has undertaken the tasks of coordinating the efforts of stakeholders who work with the victims of human trafficking. Volunteers, attorneys, guardian ad litems (GALs), and other legal and medical professionals convened last year to discuss common strategies and issues. A checklist was created to guide lawyers and advocates in understanding the unique problems they may confront when helping human trafficking survivors. The checklist is available at /cmdocs/cm450.nsf/WDOCS/F42286A040BCB76685257DA200540689.
The Commission Recommendations Subcommittee and Florida for Children and Families (F4CF) cosponsored a CLE presentation titled Report on Implementation of §39.01305 Counsel for Department Children with Special Needs – Data from the First Six Months. Representatives of the Justice Administrative Commission, the Guardian Ad Litem Program, the Department of Children and Families, and regional counsel presented their perspectives on the initial implementation of F.S. §39.01305.
• Certification Subcommittee — The representation of children in court proceedings has been recognized as a unique area of practice. Children have developmental, mental health, and cognitive issues that should be considered at every critical stage. The Certification Subcommittee has partnered with the Public Interest Law Section of The Florida Bar to present a new area of certification in the practice area of juvenile law. The new certification will focus on dependency, delinquency, and termination of parental rights. In July 2014, the Bar Board of Governors unanimously endorsed the certification area of juvenile law upon recommendation of the Program Evaluation Committee. The rule amendments necessary to create the new certification area were forwarded to the Florida Supreme Court for comments from interested persons.
• Advocacy Subcommittee — The Advocacy Subcommittee is a new subcommittee that was just formed this year. This subcommittee reviews any present and future legislative positions of the LNOCC and focuses on legislation that may impact the legal representation of children. As the Florida Legislature and courts address the implications of the direct filing of juveniles and life without parole sentences for juveniles, the Advocacy Subcommittee has also brought these timely issues to the fore of discussion to the Legal Needs of Children Committee. The Advocacy Subcommittee was instrumental in the revisions to the LNOCC position on direct file. Additionally, the subcommittee was very active in garnering public support of Florida House and Senate bills that are seeking revisions to Florida direct file laws.
In this final report as chair of the Legal Needs of Children Committee of The Florida Bar, I thank all the members of the committee who dedicated countless hours to ensure that the children of the Sunshine State continue to thrive as a natural resource. You have accepted the challenge of change through your efforts and advocacy. I also want to thank our staff contact, Paul Hill, and our administrative assistant, Joan Wussler. Both of you did an amazing job at keeping my feet on the ground and my mind on the next upcoming deadline.
Tamara Ilene Gray, Chair
Marital and Family Law Certification
On behalf of the marital and Family Law Certification Committee, I am pleased to report that the committee has completed another successful year. Lawyers practicing marital and family law in Florida continue to show tremendous interest in board certification.
The exam was held March 13 at the Tampa Hilton Westshore Hotel. The number of initial applicants for the 2015 exam was 57, with 33 actually completing the exam. This year also included a large number of recertification applicants, totaling 53.
The number of statewide marital and family law certified lawyers remains considerable at 277. Board certified marital and family lawyers constitute approximately 7 percent of the 3,719 total members of the Family Law Section. The accomplishments of those who have achieved board certification are considerable. These specialists have passed extensive peer and judicial review, have had substantial involvement in complex marital and family law cases, have tried many family law cases, and have studied for and passed a comprehensive, all-day exam consisting of multiple-choice, short-answer, and essay questions. 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.”
In January, we reached an all-time record attendance for the 2015 certification review course, with 1,495 in attendance. The review course was in a wonderful new location, The Hilton Bonnet Creek, Orlando, and was chaired by Laura Davis Smith. Her committee did an excellent job bringing in magnificent speakers for significant topics, making this the highlight event for family lawyers in Florida.
This year, we were so fortunate to have Zachary Shrader join us as our certification specialist. He has truly been an asset to the committee and showed leadership and support at every step of the way. His organization and communication kept us on task and allowed us to complete the exam with time to spare!
Our committee prepared a test that hit the core subjects and tested the knowledge and skills of marital and family law lawyers. We were fortunate to again work with our testing consultant, Karen Barbieri, who provided invaluable feedback after review of our exam. We have also continued to consult with the finest marital and family lawyers around the state, who graciously volunteered their time and knowledge to take portions of our test and assist us in our efforts to produce an exam worthy of those who dedicate the time and effort seeking board certification. The committee is grateful for all the feedback and advice provided by Ms. Barbieri and our statewide colleagues.
Our committee continues to review our rules and policies. We recognize the growing emergence of collaborative marital and family law and need to be sure we are not missing any qualified applicants who are unable to meet the trial requirements because of a large collaborative practice. We are also aware of many lawyers who are representing high-end clients in complex matters in a more confidential setting who are unable to meet the trial requirement, but are actively lecturing and otherwise clearly a specialist in this area of law.
We have also updated our application. The committee spends hours reviewing applications and then hours are spent at the Bar level requesting additional information. Hopefully the changes will assist the applicants in providing all needed information at the time of application.
Serving as committee chair this year has been professionally rewarding. I have had the good fortune to work with committee members Alex Caballero, Shannon Novey, Lawrence Datz, Luis Insignares, Doug Reynolds, Elisha Roy, Ty Zdravkovski, and Barry Wayne. These select lawyers are insightful, hardworking, and a pleasure to spend time with. I called upon immediate past Chair Barry often and appreciated the time he spent guiding me this year. He will be leaving this committee after six years of dedicated service as will Vice Chair Ty Zdravkovski. They both will be missed.
It has been an honor to serve this committee along with the dedicated and talented group of professionals and our liaison, Zach.
Caryn Green, Chair
Media and Communications Law
• Media Awards — A major accomplishment this year for the Media and Communications Law Committee is the revamping of a signature program, the media awards. Now in its 60th year, the competition recognizes outstanding legal journalism in Florida. For the first time, winners will receive cash prizes. In addition to existing categories for print, television, and radio, a new category for online-only media coverage has been added — as well as a lifetime achievement award named for Susan Spencer-Wendel, the Palm Beach Post courts reporter who died in 2014 after a well-documented battle with ALS.
• First Amendment and the U.S. Supreme Court — As is the tradition, the committee’s long-standing annual convention CLE program did not disappoint. Again, panelists on First Amendment and the U.S. Supreme Court tackled some of the hottest First Amendment issues.
According to seminar coordinator Thomas R. Julin (Hunton & Williams LLP), “The Florida Bar made itself the star of its own First Amendment show by filing a complaint against Lanell Williams-Yulee, a candidate in 2009 for Hillsborough County Court judge who personally signed a campaign fund-raising letter.” The Florida Supreme Court agreed with the Bar that the candidate violated Canon 7C(1) of the Code of Judicial Conduct and Florida Bar Rule 4-8.2(b) and held the rules constitutional. The U.S. Supreme Court granted review and Barry Richard (Greenberg Traurig) argued the case for the Bar on January 20. Richard joined the veteran panel that included Julin; U.S. Court of Appeals for the 11th Circuit Judge Adalberto Jordan; U.S. District Judge Marcia Cooke; Third DCA Retired Chief Judge Alan R. Schwartz; University of Miami Law Professor Lili Levi; University of Florida Law Professor Lyrissa Lidsky; Florida International University Law Professor Howard Wasserman; Carlton Fields Jorden Burt Partner Richard J. Ovelmen; and Hunton & Williams Partner Jamie Z. Isani.
• Reporters’ Workshop — Craig Waters, chief spokesman for the Florida Supreme Court, chaired the Reporters’ Workshop last September in Tallahassee. It was attended by 20 journalists from around the state. Among the participants, Justice Barbara Pariente provided an introduction to the Supreme Court and led a courthouse tour, and Judge Meenu Sasser, 15th Circuit, participated on the panel Journalism in the World of Social Media, Twitter and Facebook. A highlight of the Reporters’ Workshop dinner is the presentation of The Florida Bar’s Media Awards. A television station, two newspapers, and one radio station were winners of the 59th annual competition, chaired by Samuel J. Morley. Florida Bar President Gregory W. Coleman presented plaques to journalists from WTSP-TV 10 News, The Tampa Bay Times, The Ocala Star-Banner, and radio station WGCU Public Media (Lee County). The event was held on the 22nd floor of the Capitol, with Chief Justice Jorge Labarga and several Florida Supreme Court justices in attendance.
I’d like to recognize Media and Communications Law Committee vice chairs Nadia Ahmad and Sam Morley for their outstanding service. Kudos to the members for a great year. I encourage anyone interested in working with the MCLC to join us.
Edward L. Birk, 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 has taken this mission seriously and worked diligently evaluating existing programs and reviewing potential programs.
The Member Benefits Committee continues to actively pursue discounted member benefits for members of the Bar. The committee reviewed more than 25 proposals from potential providers during the 2014-2015 fiscal year and approved an unprecedented 14 new member benefits for recommendation to the Board of Governors. Among the new member benefits that were added during this fiscal year are Rocket Matter; Clio; MyCase; SoFi student loan refinancing; Nextpoint; ServeManager; TheFormTool; Bill4Time; Amicus Attorney; Ruby Receptionists; and CrosStar mobile, landline, and data solutions. Member Benefits Committee Chair Pete Sweeney encourages all Bar members to visit the www.floridabar.org/MemberBenefits website to take advantage of the wide array of discounted professional and personal services offered to Bar members through The Florida Bar member benefits program.
Peter J. Sweeney, Jr., Chair
The scope and function of the 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 general Bar and include active-duty judge advocates (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. A subcommittee chaired by Alex Jagiella and Miriam Victorian did a superb job in producing this high-quality and well-received program. The symposium focused on military specific aspects of estate planning, defending soldiers under the SCRA and provided updates on veterans’ advocacy. The keynote speaker was Brigadier General Dixie A. Morrow, Judge Advocate General’s Corps for the U. S. Air Force. Her luncheon presentation addressed her experience as the rule of law expert for the U.S. Embassy in Kabul, Afghanistan.
The 2015 Military Law Symposium is June 27 during the Bar’s 2015 Annual Convention. We encourage Bar members to attend this day of outstanding CLE and join us in support of America’s heroes and their families.
Attorneys may now represent veterans during certain phases of administrative processing of disability claims before the Department of Veterans Affairs, but department accreditation and periodic CLE is required. Committed to provide instruction in the areas required by the department, the committee has teamed with Stetson University College of Law to present veterans’ law accreditation training. Due to scheduling issues, this training was delayed from February 2015, but plans are underway to hold the training again.
The committee has started outreach with other states to review and potentially implement programs to serve the many returning veterans and their families as the operational tempo of our Armed Forces slows. A representative of the committee has been invited to a spring conference to be chaired by its Georgia Bar equivalent when various states will outline their state bar’s programs assisting military members and their dependents. Also, this year saw the implementation of a modified Rule 18 pertaining to the Practicing with Professionalism requirements for military legal assistance attorneys stationed at Florida bases/installations.
Special thanks to Mary Ann Obos, program administrator with The Florida Bar, for her positive attitude, diligence, and exemplary support to this committee.
Miriam O. Victorian, Chair
Prepaid Legal Services
The Prepaid Legal Services Committee of The Florida Bar was established by the Board of Governors in 1974, and at its very core, it exists to improve access to the legal system and access to justice. Specifically, the committee furthers the policy of The Florida Bar, as expressly stated in Ch. 9 of the Rules Regulating The Florida Bar, “to 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. ”
In furtherance of this stated policy, the chief 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. Additionally, the committee furthers this stated policy by creating a greater awareness among the general public 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.
The committee also furthers the stated policy of The Florida Bar by working to educate its membership as to the entrepreneurial benefits presented in both creating and administering new legal services plans and working with already established legal services plans. At the 2014 annual convention, the committee, along with the Florida Lawyers Legal Insurance Corporation (FLLIC), jointly presented an educational seminar entitled Chapter 9 Legal Services Plans: Assisting Florida Attorneys in Expanding Their Private Client Base – PLUS – Probate Law and Bar Fee Arbitration and Mediation.
Following its 2014 presentation, the committee responded to new inquiries related to the creation of new Ch. 9 legal services plans. During its October 16, 2014, meeting, the committee considered an amendment to an existing legal services plan. The committee also had the opportunity at that meeting to review and discuss a proposed new legal services plan. As chair, I thank Vice Chair Gerald Walter Pierre and committee members Benjamin Andrew Carpenter, Adam Scott Goldberg, and Michael Gary Stern for serving on the related new plan subcommittee and sharing their comments before the full committee during the October 16, 2014, meeting. The committee met again on January 22 at The Florida Bar winter meeting, during which discussion included plans for successfully carrying out its responsibilities in the upcoming year.
Looking forward to the 2015 Bar Annual Convention, the committee is proud to once again cosponsor an opening day seminar with FLLIC. I thank FLLIC President Ainslee R. Ferdie for his ongoing service in organizing these educational seminars for the benefit of the membership of The Florida Bar. I also thank and specifically acknowledge the diligent efforts of the committee’s vice chair, Gerald Walter Pierre, who has taken the reigns and responsibility on behalf of the committee for the upcoming 2015 seminar presentation. The committee anticipates this year’s event to be another great experience for all participants, presenters, and attendees, with plans including a lively panel discussion on practical operational aspects of legal services plans. We are pleased to have past Chair Ronald P. Glantz featured on the panel this year, and in this regard, we thank committee member Michael Gary Stern for his efforts. The committee is especially honored to have past Chair John Schaefer open the seminar and speak on the establishment of Ch. 9 legal services plans. The committee expressly acknowledges Mr. Schaefer and thanks him for his leadership, dedication, and ongoing efforts, which have been invaluable not only to the committee, but also to The Florida Bar and to the general public in improving access to the legal system and access to justice. Additionally, I personally thank both Mr. Schaefer and past Chair Daniel F. Mantzaris for sharing their wisdom, experience, insight, and guidance during my first year of service as committee chair.
Finally, I thank each member of our committee for their individual efforts, involvement, and collective service in furthering our ongoing mission as a committee. I give my very personal thanks to Ricky Libbert for her dedication, service, and overall assistance as program administrator. Her positivity, responsiveness, and dedication continue to ensure that committee administrative matters are efficiently handled, that its plans are effectively implemented, and that committee obligations and goals are timely met.
It has been a true privilege to serve as chair of the Prepaid Legal Services Committee of The Florida Bar during the past year, and I look forward to honoring the committee’s longstanding tradition of service to The Florida Bar and the general public as I continue my service as committee chair in the upcoming year.
Kent A. Showalter III, Chair
Pro Bono Legal Services
In 2014, The Florida Bar’s Standing Committee on Pro Bono Legal Services continued to focus on raising the level of awareness regarding the need for pro bono legal services. The committee supported the following efforts seeking to improve and encourage pro bono participation:
• Supported the work of The Florida Bar, The Florida Bar Foundation and the Florida Supreme Court to establish a Florida Commission on Access to Civil Justice to address the need for civil legal aid. Several members of the committee either serve on the commission or have been appointed to the subcommittees of the commission.
• Worked with the Miami-Dade County Pro Bono Round Table and the One Campaign director to encourage and support pro bono activities in Miami-Dade County.
• Supported the work of the One Campaign, Cuban American Bar Association, and Miami-Dade County Pro Bono Round Table to establish and promote the Special Immigrant Juvenile Project in Immigration Court in Miami.
• Worked with the Business Law Section to present the Non-Profit Legal Clinic in Miami, Tallahassee, Jacksonville, and Tampa.
• Worked with the Appellate Practice Section to find pro bono attorneys to represent low-income Floridians in appeals.
• Supported, sponsored, and encouraged the statewide Florida Lawyers in Libraries program.
• Developed and distributed with the One Campaign director a new judge’s mini-guide for encouraging pro bono participation from the bench.
• Successfully petitioned the Bar and the Florida Supreme Court to increase the membership of the standing committee and to allow in-house counsel to participate in pro bono activities through a local legal aid program.
• Worked with the Bar to establish a new pro bono service award for a member of the federal judiciary in Florida.
• Surveyed Bar sections and committees for information about ongoing pro bono projects of the committees and sections.
• Continued to work on establishing and reinvigorating the circuit pro bono committees in every judicial circuit in Florida.
Through the work of the committee, Florida continues to make improvements in the delivery of pro bono legal services to low-income Floridians.
Judge Vance E. Salter and Kathleen S. McLeroy, Chairs
The Professional Ethics Committee provides 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 online. A link to “Ethics” is included in a bar near 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 was busy during the past year, meeting twice and considering 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 a particular set of facts. When issuing proposed formal opinions, the committee publishes official notice in The Florida Bar News, allowing Bar members to comment. The committee values the input provided by such 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 link for “Ethics Opinions.”
• Final Advisory Opinions — Opinion 87-11 (reconsideration): The Professional Ethics Committee reconsidered Florida Ethics Opinion 87-11 to address changes to Rule of Judicial Administration 2.515 regarding electronic signatures. Opinion 87-11 states that an attorney should not permit a nonlawyer employee to sign the attorney’s name, together with the nonlawyer’s initials, to notices of hearing and other pleadings under any circumstances. Since the time Opinion 87-11 was issued, the Florida Supreme Court has mandated electronic filing and amended the Rules of Judicial Administration to address electronic signatures. In light of these changes, the committee opined in Opinion 87-11 (reconsideration) that an attorney may allow a nonlawyer employee to put the attorney’s electronic signature on solely electronic documents as permitted by the Rules of Judicial Administration, but only after the attorney reviews and approves the document to be filed. The committee noted that the attorney is ultimately responsible for the document.
• Issue Currently Under Consideration — Proposed Advisory Opinion 14-1: The Professional Ethics Committee has adopted a proposed advisory opinion on the issue of attorneys advising clients to “clean up” their social media pages pre-litigation. The four issues addressed in the proposed advisory opinion are: 1) whether a lawyer may advise a client pre-suit to remove posts, photos, videos, and information from social media pages/accounts that are related directly to the incident for which the lawyer is retained; 2) whether a lawyer may advise a client pre-suit to remove posts, photos, videos, and information from social media pages/accounts that are not related directly to the incident for which the lawyer is retained; 3) whether a lawyer may advise a client pre-suit to change social media pages/accounts privacy settings to remove the pages/accounts from public view; and 4) whether a lawyer must advise a client pre-suit not to remove posts, photos, videos, and information, whether or not directly related to the litigation, if the lawyer has advised the client to set privacy settings not to allow public access. The proposed opinion discusses Rule 4-3.4(a). Under this rule, the committee notes that the relevant inquiry is whether the information is relevant to pending or reasonably foreseeable proceeding. The proposed advisory opinion concludes 1) a lawyer may advise a client to change the privacy settings on the client’s social media pages so that they are not publicly accessible; and 2) a lawyer may advise a client to remove information relevant to a pending or reasonably foreseeable proceeding from a client’s social media pages, but only if doing so does not violation the rules or substantive law concerning preservation and/or spoliation of evidence and an appropriate record of the social medial information is preserved.
The committee, pursuant to The Florida Bar Procedures for Ruling on Questions of Ethics, has solicited comments from Florida Bar members on the proposed opinion. The committee will consider any comments received at its June meeting during The Florida Bar’s annual meeting.
• Appeals of Written Staff Opinions — At each of its meetings, the committee considers appeals by attorneys of written staff opinions issued by staff in response to inquires submitted by the attorneys. Among the issues considered by the committee in such appeals this year were reverse contingency fees to defend mortgage foreclosure cases and a subscription service for lawyers to report payment history of former clients as to legal fees.
The committee also dealt with several appeals when staff declined to issue an opinion. Among such appeals considered by the committee were the following: the denial of a staff opinion involving legal questions regarding what is the unlicensed practice of law in another jurisdiction and questions of judicial conduct; the denial of a staff opinion regarding a fee division agreement between an inquiring attorney and that attorney’s former firm involving past conduct and legal questions; and the denial of a staff opinion regarding advising clients regarding medical marijuana.
• Masters Seminar on Ethics — The Professional Ethics Committee’s popular yearly CLE program addresses areas of ethics of great significance to Bar members at the annual convention. The seminar subcommittee is chaired by Ana Maria Martinez. The seminar provides 4.0 hours of ethics CLE credit. The seminar addresses ethical issues facing lawyers, including ethics in social media, recent amendments to Florida’s trust accounting rules, how to safely manage trust accounts, and maintain the confidentiality of electronic information in the age of cyber threats. There also will be a judicial panel discussing judicial views of ethical issues in federal and state court litigation. The judicial panel will be moderated by Raoul Cantero, former Florida Supreme Court justice. Expected panelists include Judge Marcia Cooke, U.S. District Court for the Southern District of Florida; Judge Jonathan Gerber, Florida Fourth DCA; and Judge Russell Healy, Fourth Judicial Circuit of Florida. Other expected speakers include Michael (Mick) Stawasz of the Department of Justice and Florida attorneys John J. Delionado and Ethan Wall.
• 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 29,048 hotline calls during fiscal year 2014, in addition to providing hundreds of written staff opinions and other ethics correspondence.
Finally, the committee thanks our Board liaison, Gary Shepard Lesser, DEUP Division Director Mary Ellen Bateman, 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.
Grey Squires-Binford, 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 called upon by both the Commission on Professionalism and Florida Bar President Greg Coleman to undertake major projects. To accomplish these tasks and other business of the committee, several working groups were established including:
• Standards Working Group — In May 2014, former President Pettis and President Coleman tasked the Standing Committee on Professionalism with reviewing the existing guidelines for professional conduct as well as a preliminary version of the Best Practices for Effective Electronic Communications in order to create a set of uniform professionalism guidelines. Chaired by Caroline Johnson Levine, the working group created a new Professionalism Expectations Guide. This extraordinary task was accomplished in record time through the dedicated work of this group which included John Cardillo, Professor Tim Chinaris, Professor Kirsten Davis, and myself, serving as co-chair. The committee as a whole adopted Professionalism Expectations, which was later adopted by the Board of Governors in January. The Professionalism Expectations have now been distributed to the district, circuit, and county court conferences and will be available on The Florida Bar’s Center for Professionalism website.
• Education and Resources Working Group — At the June 2014 meeting of the Commission on Professionalism, the Standing Committee on Professionalism was asked to develop a one-page written statement advising clients of the availability of local professionalism panels to consider professionalism complaints. These local professionalism panels were established by SC13-688, In re: Code for Resolving Professionalism Complaints. This working group, chaired by Hillsborough County Judge Frances Perrone, drafted the document and it has been submitted to the commission for review. In addition to the foregoing, this group developed hypothetical materials that can be used in professionalism training sessions.
• Awards Working Group — Under the leadership of Chair Donise Brown, 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 recipient. The Hoeveler award recognizes a state or federal judge who best exemplifies strength of character, competence, commitment, and civility as a jurist, lawyer, and public servant. The Law Faculty/Administrator Award is presented to a Florida law professor or administrator, who, through teaching, scholarship, and service, epitomizes the ideals set out in the mission of the standing committee. The Group Professionalism Award similarly recognizes a local bar association, inn of court, judicial organization, or law school association with an innovative program that can be implemented by other organizations to promote and encourage professionalism within the legal community. The working group reviewed applications and related forms, developed a strategy to promote and educate members of the Bar about the awards and deadlines, considered nominations, and made a recommendation to the full standing committee regarding selected awardees. The three awards recipients will be recognized at the Judicial Luncheon during the annual convention of The Florida Bar.
• Circuit Professionalism Working Group — Chaired by Carrie Roane, this working group is responsible for the important work of collecting and compiling the circuit professionalism reports from each of Florida’s 20 judicial circuits which are provided to Justice Lewis, the chair of the Supreme Court Commission on Professionalism, and published in the The Professional. The group reviewed the report from last year and considered changes and additions. Group members were assigned to circuits and ensured that these reports were collected. 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.
• Young Lawyers Working Group — Chaired by Rachael Greenstein and co-chaired by Alvin Benton, Jr., the working group promoted Balancing Law and Life seminars at all the law schools around the state. In addition, the group launched two pilot programs. The Winning Edge is a PowerPoint presentation delivered by a panel of speakers focusing on professional development. The Law Student Professionalism YouTube Contest promoted professional expectations through role-playing videos to be used in training by the center.
• Publicity and Communications Working Group — Chaired by Assistant Attorney General Richard Lawson, this working group solicited articles regarding professionalism and civility for submission to The Professional and the FIU College of Law Library and Center for the resource clearinghouse.
• Transitions — This year David P. Hallman, the past chair of the Standing Committee on Professionalism passed away unexpectedly. He truly epitomized the ideals of professionalism that the committee strives to promote. It is instructive that his email correspondence contained the statement, “Practicing law with civility is no longer just an option; in Florida, it is mandatory.” He will be greatly missed. In another transition Linda Calvert Hanson, director of the Henry Latimer Center for Professionalism, retired. She is still with the center on a part-time basis until June 30. As of February 1, Jacina Haston was promoted to take her place. I personally express my gratitude to both Linda and Jacina. They are the ones who really make the committee as effective as it is.
Michael L. Schneider, Chair
Real Estate Certification
This has been an active year for the committee. Other than this chair, its members are Vice Chair Meredith Ellen Level, D. Michael Chesser, Denis Allan Cohrs, Joshua A. Escoto, Lloyd Granet, Jane Stubbs Hunston, William Stuart Kramer, Richard Alan Miller, Michael Earl Mirrington, and Mary A. Robison.
The real estate certification program was first established in 1987. There are currently 450 board certified real estate attorneys, which represents slightly more than. 52 percent of the active Bar. Approximately 70 lawyers have applied for initial certification during the year 2015. There were 52 applicants in the 2014; 29 took the test; 12 became certified in 2014. Real estate is, and routinely has been, the second largest area of certification in terms of numbers of individuals who are certified in the program.
This year, the committee continued its effort to develop exam questions that test an applicant’s skill, experience, and knowledge about how to practice real estate law, as opposed to just testing technical skill and knowledge alone. The committee believes that a truly good test should be centered on what is commonly called “walking around knowledge” regarding the practice of real estate law.
The committee has also embarked on a process to revise the specifications for the examination so as to employ more short-answer or short-essay questions designed to better test problem solving skills and walking around knowledge. The revised specifications may or may not be approved in time for the 2016 exam.
I identify and thank former committee members who have served as exam pretesters: Martin S. Awerbach, Joseph R. Boyd, Howard Allen Cohen, David A. Kobrin, Roger A. Larson, Russell M. Robbins, John L. Soileau, and David Weisman. They provide an invaluable aid to the committee as has the expert assistance and guidance of Karen Barbieri, the BLSE examination consultant.
As I leave the committee, now having served a second term on the committee, and a second time as its chair, I thank several committee members in particular. Vice Chair Meredith Level has been extremely helpful and supportive taking on tasks to assist. Long-time committee members, who are also terming off with me, Lloyd Granet and Michael Mirrington, both former chairs, have consistently provided wise counsel. The committee’s long-time and dedicated bar staff member, Carol Vaught, provides continuity and invaluable experience.
Richard C. Grant, Chair
Rules of Judicial Administration
The Rules of Judicial Administration Committee (RJAC) consists of 39 members appointed by the president-elect of The Florida Bar’s Board of Governors, 10 of whom are representatives of the other court rules committees. RJAC, under Rule 2.140(a)(6), is the “rules coordinating committee” responsible for ensuring uniformity and consistency of rule amendments proposed by the various rule committees. Despite an antiquated description in Fla. R. Jud. Admin. 2.110 as applying to “administrative matters” in all courts, the rules have actually taken center stage in recent years as the pivotal rules for ushering in electronic filing in Florida’s courts under Rules 2.525 (e-filing) and 2.516 (e-service).
Parts IV (judicial proceedings and records) and V (practice of law) of the rules have seen the most changes through significant amendments to rules addressing confidentiality in judicial branch records (Rule 2.420), redaction of “sensitive information” (Rule 2.425), and amending the “attorney signature” rule to include certification of compliance with the requirements on confidentiality and redaction (Rule 2.515(a)(4)). What previously were important considerations in guarding privacy and confidentiality in the paper world have taken on greater significance in the age of digital court records being accessible over the Internet.
This year we have made exciting forays into the challenges of unbundling legal service — which has also been part of the Bar’s Vision 2016 initiatives — by making limited appearances in proceedings a more recognized part of practice in Florida’s courts. Our subcommittee “A” Chair Amy Borman has headed these efforts through proposed amendments to Rule 2.505, subparts (e) addressing appearances of attorneys, and (f), which addresses termination of appearances by attorneys in proceedings.
We have also attempted to better define the Rules of Judicial Administration’s position as a rules coordinating committee with respect to rule amendments proposed by other rule committees through our Ad Hoc Subcommittee, headed by Sandy Solomon. Through proposed amendments to Rule 2.140(a), subparts(4), (5), and (6), we hope to present a streamlined procedure for rules of “general or common application” being vetted in a collaborative process that ensures uniformity and consistency across all rule sets, toward the goal of simplifying practice and procedure in Florida’s courts.
Also, this year has seen a greater interest in more joint efforts between RJAC and the Florida Court Technology Commission (FCTC), a court-created, 25-member commission formalized in Rule 2.236. FCTC is charged with the responsibility to recommend technology policy, standards, and rule initiatives to the court, with a body of work that oftentimes depends on input and/or proposed rule amendments from RJAC. A joint committee was created of representatives of both FCTC and RJAC — with input from Justice Ricky Polston, liaison to both FCTC and RJAC — which will explore the overlap between the court’s technology standards and certain Rules of Judicial Administration addressing electronic access to court records, e-filing/e-service, and the day-to-day functioning of the courts through Florida’s E-Filing Portal.
This initiative follows the work of RJAC Subcommittee “B”, headed by Judge Scott Stephens (also a member of FCTC), which began this analysis and will be part of the ultimate recommendation of whether the technology standards should be afforded the imprimatur of rules of court. Due to the speed with which court technology evolves and the interplay between those technological processes and court rules, it has been suggested that the technology component to practicing in Florida’s courts may need to move at a pace more rapid that the traditional three-year cycle for rule amendments.
We have abundant talent among all our RJAC members, each having risen to the challenge of assuming leadership positions on issues and subcommittees. Together with the guiding hand of our excellent advisor, Krys Godwin of The Florida Bar, RJAC will continue in capable hands into the next year. This has been one of the most satisfying years of Bar service for me. Thank you for the opportunity to serve my fellow members of The Florida Bar.
Murray B. Silverstein, Chair
Senior Law Committee
The Senior Lawyers Committee has been getting organized and expanding over the past year. Committee meetings generally had at least 50 members in attendance. We appointed various subcommittees including CLE, communications, pro bono, and mentoring.
The Senior Lawyers Committee sponsored a complimentary CLE program during The Florida Bar’s winter meeting: Are you Sprinting Toward a Brick Wall? Considerations in Retirement and Succession Planning for Lawyers and Law Firms. Topics included: what’s working in law firm succession and transition plans and the impact of 4-Gen in the workplace; health factors impacting senior lawyers; professional liability insurance considerations; ethics in practice; and trends in personal financial planning for lawyers. All credit goes to committee Vice Chair Marianne Trussell for organizing this great, free CLE program. The program was also recorded and may be viewed on the Senior Lawyers Committee page of The Florida Bar’s website.
The committee has been diligently discussing the topic of legal assistance by lawyers who have retired or slowed down their practice, as well as the role of inactive lawyers in The Florida Bar and whether that classification should be changed or expanded.
Mentoring is an issue in which all Bar members are interested. If you wish to participate in the Senior Lawyers Committee, please feel free to attend the committee meetings or contact our very able and efficient staff liaison, Lani Fraser, at The Florida Bar.
Jake Schickel, Chair
Small Claims Rules
The Small Claims Rules Committee had another very productive year, thanks to the active participation of its members. The committee currently consists of 33 members, representing a broad cross-section of judges, attorneys, and others who are interested in promoting justice in the people’s court. We value input from the public, encourage participation in our committee and subcommittee meetings, and welcome all comments and suggestions regarding the Florida small claims rules.
During the past year, the committee emphasized the importance of continued outreach to the judiciary and to the clerks of court. As part of this effort, the committee was pleased to welcome Nikki Alvarez-Sowles as the committee’s clerk liaison. Of course, the committee also appreciates the dedicated and invaluable service of numerous judges on the committee, including Judge Martin R. Dishowitz, Judge Sheree Hiers Lancaster, Judge Terri-Ann Miller, Judge Michaelle Gonzalez Paulson, and Judge Nancy Perez.
During the past year, a number of proposals affecting the small claims rules were reviewed and evaluated. At the October 16, 2014, meeting, the committee voted to approve changes to Rule 7.080 to clarify the ability of pro se parties to participate in electronic service of case documents. This proposed rule change will be forwarded to the Florida Supreme Court as part of the committee’s 2016 cycle report. At the same meeting, the committee approved in concept proposed changes to Rule 7.090. Those changes are intended to improve the efficiency of the courts by requiring the court to cancel the initial pretrial conference as to any nonserved party when the return showing nonservice is filed five days before the pretrial conference. The October meeting also included the reorganization of the subcommittees to ensure that all members would have an opportunity to participate in those subcommittees, and that all subcommittees included a diverse spectrum of participants.
At the January 22 meeting, the committee engaged in further discussion regarding the proposed changes to Rule 7.090 and approved those changes. Proposed changes to Rule 7.140 dealing with trial testimony were discussed, but not adopted. Additional discussion centered on proposed changes to the Rules of Judicial Administration, and their potential implications on the small claims rules. In particular, the committee has been monitoring potential changes dealing with telephonic testimony, notices of appearance (including the implications on coverage counsel), and e-service.
I am very grateful for the significant amount of time and effort invested by numerous members in ensuring that the small claims rules continue to allow the just, speedy, and inexpensive determination of small claims actions. On behalf of the committee, I sincerely thank our current Vice Chair Andrew Daire, Secretary Alison Verges Walters, past Chair and RJA Liaison Nicole Young, and all subcommittee chairs. I also extend our heartfelt appreciation to the always-prepared Josine René Blackwell, our Florida Bar rules liaison, who ensures our committee runs smoothly. The commitment and enthusiasm of each of you has made it an honor and privilege to lead this committee. I continue to encourage all Florida attorneys to apply for appointment to the Small Claims Rules Committee and thereby help our citizens obtain justice in our courts.
Taras S. Rudnitsky, Chair
State and Federal Government and Administrative Practice
There are currently 87 lawyers certified in state and federal government and administrative practice. Rule 6-25.2 describes the practice area to include “the practice of law on behalf of public or private clients on matters including but not limited to rulemaking or adjudication associated with state or federal government entity actions such as contracts, licenses, orders, permits, policies, or rules.” Certification is only available for those qualified applicants who pass an examination, meet the minimum practice requirements, peer review, and CLE requirements pursuant to Rule 6-28.3. The examination covers both the state and federal administrative procedure acts, as well as civil actions involving state and federal government. The committee administered the ninth certification examination on May 14 in Tampa. Twelve attorneys applied to sit for the examination.
The committee remains concerned with expanding the number of certified state and federal government and administrative practice attorneys. As such, the committee continues its exploration of creating two sub-tracks within the practice area. The two areas under consideration are state and federal government practice and state and federal administrative practice. The committee will consult with interested sections of The Florida Bar and others in the coming months. The committee welcomes your thoughts on these or alternative proposals to better serve our certification practice area.
The 2014-2015 committee consisted of Chip Fletcher, chair; Martha Chumbler, vice chair; Thomas Albert Delegal III; Francine Ffolkes; Kenneth Hayman; Judge Lynne Quimby-Pennock; Ryland Terry Rigsby; Colin Roopnarine and James Richmond. Our excellent staff liaison was Vicki Simmons until February 6 when her position was then filled by Maritza McGill. The committee extends its gratitude to its members and staff liaison for the many hours of hard work devoted to performance of the committee’s duties.
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 Maritza McGill at (850) 561-3141.
Chip Fletcher, Chair
Student Education and Admissions to the Bar
SEABC continues to follow its mission in evaluating how well law schools prepare their students for the practice of law. At the 2014 Florida Bar Annual Convention, the Outlook Ethics CLE was a successful interactive discussion with members of the committee, the general bar, and law school deans and professors. The panel included Judge Meenu Sasser from the 15th Judicial Circuit in Palm Beach County, an authority on social media discovery and cutting-edge issues across the online spectrum, and Professor Jan Jacobowitz, lecturer in law and director of the professional responsibility and ethics program at the University of Miami School of Law. The panel was moderated by committee member Jason Silver.
The panel discussed a wide range of substantive, ethical, and professional issues young lawyers and law students face in 2014, with both Judge Sasser and Professor Jacobowitz providing insightful advice for attorneys and law students. The panel touched on many topics that will continue to be relevant in our growing electronic age from professional electronic mail exchanges, texting, and other informal communication to the impact of social media in today’s legal world. The committee hopes to bring this informative presentation to law schools around the state with the assistance of local lawyers and committee members.
Currently, the committee is updating The Florida Bar pamphlet, “So You Want to be a Lawyer.” This pamphlet provides some basic introductory information to those interested in going to law school and pursing a law career. The committee is also planning an annual convention CLE program: Setting the Course for Success in the Legal Environment. The committee will introduce the findings of the Vision 2016 Commission on the state of legal education. Panelists will discuss how well our law schools are preparing Bar members for the practice of law and how to we might improve the legal education model. We believe this will be a great discussion very pertinent to the changing legal landscape.
SEABC has been hard at work on each project and could not have succeeded without the assistance of Karen Kirksey, staff liaison. Many thanks to all of our speakers and SEABC members for their hard work and dedication to the committee’s mission; you are appreciated.
Maja S. Holman, Chair
Tax Law Certification
As the 2014-2015 chair of the Tax Law Certification Committee, I am pleased to provide this report. 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; 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 in August 2014 to begin drafting the 2015 examination and to review initial and recertification applications. Over the next several months, the committee continued 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 2015 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 that the exam is a fair but rigorous test of an applicant’s expertise. On March 13 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 2014 examination on an anonymous basis, with each examinee identified to the committee only by a number assigned by 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 98,000 members of The Florida Bar, 226 are currently board certified in tax law. Five attorneys applied to take the 2015 tax law certification exam and four of those applicants sat for the exam. The committee also reviewed 41 recertification applications, plus further considered six recertification applications pending from the prior 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 to serve as chair of the committee. This year’s committee included me as chair, Jacksonville; Michael Wilson, vice chair, Sarasota; Benjamin Jablow, Tampa; Cristin Keane, Tampa; Donna Litman, Miami; Lee Osiason, Miami; Richard Shapack, Bloomfield Hills, Michigan; Glen Stankee, Ft. Lauderdale; and William Swindle, Tampa. We also appreciate the hard work of Vicki Simmons who served as staff liaison throughout most of the year, with Maritza McGill taking over late in the year, and Lindsey Blomberg, who did a wonderful job transitioning the committee to Vicki and then to Maritza.
Harris L. Bonnette,
Unlicensed Practice of Law
The standing 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.
The court approved the standing committee’s advisory opinion regarding Medicaid planning activities by nonlawyers. At the time of printing, this opinion was not yet final as a motion for rehearing was filed and had not been determined. The standing committee’s opinion found that it constitutes the unlicensed practice of law for a nonlawyer to engage in the following Medicaid planning activities leading up to the Medicaid application: 1) drafting of a personal service contract; 2) determining the need for, preparing, and executing a qualified income trust, including gathering the information necessary to complete the trust; and 3) rendering legal advice regarding the implementation of Florida law to obtain Medicaid benefits, including advising an individual on the appropriate legal strategies available for spending down and restructuring assets and the need for a personal service contract or qualified income trust. A nonlawyer’s preparation of the Medicaid application itself would not constitute the unlicensed practice of law as it is authorized by federal law ( The Florida Bar re: Advisory Opinion – Medicaid Planning Activities by Nonlawyers ; SC14-211).
Last May, the standing committee held a public hearing on a Goldberg request for formal advisory opinion. In a pending federal law suit in Florida involving a claim for damages based on unlicensed practice of law, the judge dismissed the case and directed the plaintiff to request a formal advisory opinion from the standing committee because no case law or advisory opinion finds the activity at issue to be 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 filed its opinion with the court in September and is awaiting the court’s opinion ( The Florida Bar re: Advisory Opinion – Scharrer v. Fundamental Administrative Services ; SC14-1730).
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 business for engaging in the unlicensed practice of law by holding themselves out as attorneys and providing legal services in immigration, family law, foreclosure assistance and loan modification matters and against out-of-state licensed attorneys for providing legal services in Florida.
We receive complaints against out-of-state licensed attorneys for assisting individuals with Florida legal issues. However, under the MJP (multijurisdictional practice of law) rules, out-of-state attorneys may provide limited legal services in Florida on a temporary basis under certain circumstances. The rules also subject out-of-state attorneys to the disciplinary authority of the Florida Supreme Court while providing those legal services. So, 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 attorneys 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 my year as chair of the standing committee, I thank all of the public members and lawyers on the standing committee for their fine service. It has been a pleasure working with you. The standing 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 our staff counsel: Lori Holcomb, director, client protection; Jeffrey Picker, assistant UPL director; UPL branch counsel, Jacquelyn Needelman (Miami), Ali Vazquez (Ft. Lauderdale), Ghunise Coaxum (Orlando), Maria Torres (Tampa), and Monica Armster Rainge (Tallahassee), and their excellent support staffs. This dedicated and hard-working staff does an incredible job year after year. It has been an honor and pleasure to work with you all.
Colin Abbott, 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 2014-2015 VBLC members. The Florida Bar leadership is continually supportive of voluntary bar associations and their activities. President Greg Coleman has taken an active interest in the VBLC, and, along with his predecessors, addressed the participants of the conference and spoke 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 a new 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 of each year. The 2014 conference was held July 11-12 at the Hyatt Regency Coconut Point Resort in Bonita Springs and was hosted by the Lee County Bar Association. The theme of the conference centered on Unlocking the Mysteries of Bar Leadership. 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, nondues revenue generation, and pressing issues affecting both staffed and nonstaffed bar associations. Along with opening remarks from Florida Bar President Greg Coleman, attendees were treated to a speech by Nora Riva Bergman: Give VOICE to Leadership. The committee thanks all involved, especially conference Chair Sarah Cortvriend, who donated their time and resources in organizing another successful conference.
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 2014 conference, plans were made to hold the 2015 Voluntary Bar Leaders Conference at the Eau Palm Beach Resort & Spa in Manapalan, July 10-11. This year’s host association is the Palm Beach County Bar Association and the theme is Dealing Your Bar Association a Winning Hand. Registration for the conference has recently opened and may be found on the Voluntary Bar Center website, www.floridabar.org/voluntarybars.
• Diversity and Inclusion — In 2014, the committee, along with the Committee on Diversity and Inclusion, continued its support of a measure to encourage associations to create a general email address for the various voluntary bar associations across the state. This email address will be used for all electronic communication regardless of the current president and/or executive director. The measure has been met with universal support with over 80 associations already implementing the change.
• Lawyer Feedback — In the fall, President-elect Ramón Abadin called on the Voluntary Bar Liaison Committee to seek feedback from voluntary bar leaders on what The Florida Bar can do to improve the practice of law for members. After careful consideration, a subcommittee devised a plan that will involve voluntary bar associations helping facilitate this exercise at the local level.
At the winter meeting, the Voluntary Bar Liaison Committee approved an action plan, which began with an outreach message to bar presidents. All VBA presidents were asked to consent to placing on their board meeting agendas a time to discuss three important questions: What are the issues in the daily practice of law that The Florida Bar can help you with? What would you like The Florida Bar do about these issues? What is your VBA doing to address these issues?
VBAs were asked to respond by letting subcommittee members know they will participate and the date of their next board meeting when the items will appear on the agenda. Subcommittee members are following up to assure all VBAs have the opportunity to participate.
• Ropes Challenge Speakers Bureau Round-Up — In the spring, the committee implemented an outreach campaign to engage more Florida attorneys in The Florida Bar Speakers Bureau. The ROPES Challenge Speakers Bureau Round-up campaign involves the recruitment of new speakers through voluntary bar organizations. Eighteen bar associations are participating in the incentive-based program, which will provide $3 for each speaker recruited. At the end of the campaign, the organization with the largest percentage of their members signed-up during the campaign will receive a $500 reward.
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.
Ileana Cruz, Chair
Wills, Trusts, and Estates Law Certification
The Wills, Trusts, and Estates Law Certification Committee oversees the process of certifying attorneys as wills, trusts, and estates 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 consists of three requirements: an active practice in wills, trusts, and estates law; excellent peer review references; and passage of the certification examination.
As chair of the Wills, Trusts and Estates Law Certification Committee, I am happy to report another successful year of overseeing the certification of Florida wills, trusts, and estates lawyers. The committee is comprised of nine wills, trusts, and estates law board certified attorneys who work throughout the state. The committee first met in August 2014 to begin drafting the 2015 examination and to review initial and recertification applications. Over the next several months, the committee continued the prior committees’ improvement of the quality of the certification exam to meet the high standards expected by committee members and The Florida Bar.
The 2015 exam is comprised of six essay questions and 58 multiple-choice questions that address procedural and substantive law. For the various subjects, the committee updated questions from previous examinations, as well as created new questions. The exam questions were all reviewed and revised to reflect changes in federal tax law and Florida estate and trust law. The committee seeks to ensure that the exam is a fair but rigorous test of an applicant’s expertise. On May 15 in Tampa, applicants took the exam in two three-hour blocks and will be advised of their results by August 1.
At its final meeting, the committee will grade the 2015 examination. The committee grades the examinations on an anonymous basis, with each examinee identified to committee members only by a number assigned by 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 wills, trusts, and estates law board certified specialist.
Of the more than 100,000 members of The Florida Bar, 337 are currently board certified in wills, trusts, and estates law. Twenty-five attorneys applied to take the 2015 wills, trusts, and estates law certification exam. Nine of these applicants submitted abbreviated applications after either failure or nonattendance at the 2014 exam. The committee also reviewed 47 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 to serve as chair of the committee this year, along with Norma Stanley (vice chair), Shawn Snyder (immediate past chair), Curtis Cassner, J. John Farina, Gary Leuchtman, Daniel Medina, L. Howard Payne, and Duane Pinnock.
Tasha Dickinson, Chair
Workers’ Compensation Certification
Florida Bar board certification in the field of workers’ compensation has been and remains the highest level of achievement a workers’ compensation attorney can achieve. There are currently 197 attorneys certified in workers’ compensation and eight applicants sat for the May 15 exam. Our grading session is scheduled for June 19.
Members of the Workers’ Compensation Board Certification Committee continue to make every effort to stimulate growth in our practice area and increase the number of applicants for certification. Our committee promotes board certification at the annual Florida Workers’ Compensation, the Florida Workers’ Compensation Forum, and through publication of articles in the Workers’ Compensation Section News and 440 Report.
Our committee comes from a diverse background of claimant attorneys, defense attorneys, and public sector attorneys. Our broad scope of knowledge allows us to create an exam that covers a vast array of workers’ compensation issues. We feel that the test is fair and that applicants who pass the exam have a great depth of knowledge and ability in the area.
Certification in the field of workers’ compensation is a benefit to both injured workers in the state of Florida, as well as industry. Our committee intends to continue in its pursuit of increasing awareness of certification in the field of workers’ compensation, as well as generating a test that is fair and supports the contention that passing examinees are experts in workers’ compensation law.
Philip Augustine, Chair
Workers’ Compensation Rules
This year the committee kicked into high gear right away. The Rules of Procedure for Workers’ Compensation Adjudications (the “60Q” rules) are constantly being reviewed as the electronic filing system (EJCC) continues to improve and incorporate more aspects of the practice. The rulemaking process appears to have settled into a two- to three-year cycle, though this is not a formalized time frame. This was a rulemaking year. The live meeting in August was a culmination of all the hard work by the subcommittees in addressing each subsection of every rule to ensure that the language clearly and accurately stated the intended purpose, complied with statutory authority, and considered the due process rights of each party. During this meeting, the full committee reviewed the submissions of the subcommittees, the recommendations of the executive council of the Workers’ Compensation Section and the Florida Workers’ Advocates, and made final recommendations on the proposed rules.
These recommendations were submitted to DOAH and the OJCC. The proposed rules and this committee’s recommendations were presented to Director and Chief Judge Robert S. Cohen and Deputy Chief Judge David Langham on August 20, 2014, during the live rulemaking hearing. In addition, live testimony was provided by multiple stakeholders. There were several judges of compensation claims in the audience for this hearing, which serves to underscore the importance of this process.
Although there are some changes recommended by this committee that have not been effectuated, most of the proposed recommendations were reflected in the published 60Q rules, which became effective November 10, 2014. As the electronic age continues to develop and the workers’ compensation system changes to meet the needs of so many, maintaining the integrity of the parties’ due process rights through the rulemaking process will continue to be the challenge of this committee and will require vigilance for all involved. The increasing use of video teleconferencing (VTC) and the absence of a rule providing the parties with an option of having a judge of compensation claims physically in the same courtroom is one such challenge. Of interest, this was a consensus recommendation of this committee, the executive council of the Workers’ Compensation Section, and the Florida Workers’ Advocates. However, it was not included in the published rules.
I thank The Florida Bar for affording me the opportunity to chair this committee and all the members of this committee who devoted their time and energy toward working together in consensus fashion in order to make viable recommendations for rules intended to provide a more efficient workers’ compensation system. It was a pleasure serving with people whose professionalism made the process meaningful and enjoyable. I also thank William Rogner, chair of the Workers’ Compensation Section, the executive council of the Workers’ Compensation Section and their rules committee, as well as the Florida Workers’ Advocates for their efforts and joint cooperation in this essential process. Finally, I must thank our Florida Bar liaison, Josine Blackwell, who made everything run smoothly, efficiently, and without a single issue.
Mark A. Touby, Chair