August 1, 2023 Letters
Ethics
This Proposed Rule 4-3.4 (Fairness to Opposing Party and Counsel) is intended to prohibit attorneys from filing or assist in filing administrative or professionalism complaints in order to gain an advantage in a civil matter.
I will give you a few examples of where this rule would actually cause us to violate other rules and laws.
For example, a full Florida matter regarding a Florida resident, a local law firm quit representing the trustee (grantor was still alive but incapable of making decisions for himself) so one of their legal assistants (who is licensed as an attorney in a different state(s)) decided to start practicing law through their own PA in Florida and giving advice and causing this trustee to be able to receive improper sums from the trust. This is clearly the unlicensed practice of law, and no one can argue that. If this new rule goes into effect, I will be violating my duty to the Bar by being unable to report him for UPL. But if I did my duty to The Florida Bar, I would be violating this new rule.
There are also several other times when the Legislature has specifically given litigants the power to make administrative complaints in order to enforce state laws. Two I can think of off the top of my head is driver’s licenses regarding unpaid damages from car accidents and the other one is pulling contractors licenses when they have taken people’s money and done nothing and these are subcontractors who are not covered by the recovery fund. If these subs fail to pay these judgments and DBPR goes after the qualifier’s licenses, in order to enforce a claim against the recovery fund it is mandated that a complaint has to be filed. So, this rule is essentially telling clients that they can no longer get money from the recovery fund.
I do not understand where The Florida Bar has the right to take away these statutorily granted remedies intended to provide recovery to people who would otherwise get nothing.
Douglas L. Rankin
Naples
Jacksonville University Law
I did not know, until I read about it in the June News, that Jacksonville University has a law school. Did we really need another one?
Leo Bueno
Coral Gables
Sleuthing Attorney
I read “Sleuthing South Florida attorney cracks six decades-old cold case” in the July News and I was quite impressed with Mr. Novack’s detailed and thorough investigation of the murder of Joseph DiMare.
Apparently, his wife, Frances DiMare, who is now believed to be the killer, was from Ohio, but the article doesn’t say where in Ohio she was from.
All I could think of, since I am originally from this city in Ohio myself, is, “this lady has got to be from Youngstown.” Youngstown is unlike any other city in Ohio. If New York City had a sixth borough, it would be 400 miles to the west in Youngstown, Ohio.
Anyway, that was a really interesting story.
Ernest J. Mullins
Kissimmee
Remembering Robert Orseck
ROBERT ORSECK, the namesake of the Young Lawyers Division’s Annual Robert Orseck Memorial Moot Court Competition, lost his life 45 years ago trying to save the lives of several children who were being swept out to sea.
How many times do we walk by a building, or even a law firm, or read about an event named after someone, and don’t give any thought about who that person was, or what he or she did. Or conversely, we say to ourselves, I wonder who that person was; I wonder what he or she accomplished.
My hope is to share enough about Robert Orseck so that when you see or hear his name, you will know why he is worthy of the recognition he received during his lifetime and after. Bobby, as he was known, died on June 30, 1978, 45 years ago. He died trying to save the lives of several children who were being swept out to sea off the coast of Israel.
His lifelong friend and then partner, Aaron Podhurst, described the circumstances of his tragic death as a “perfect storm.” Several families from Miami, including the families of Aaron and Bob Josefsberg, had been vacationing in Tel Aviv. It was the last day of what had been a wonderful vacation. There were no lifeguards on the beach that day because the lifeguards were on strike. And the signs and warnings over the loudspeakers warning of rip currents and undertows were in Hebrew, and none in their group read or understood Hebrew.
Bobby stayed back on the beach looking after several of the kids playing in the water, while the other adults went to play tennis or back to their rooms. When Bobby saw several of the kids struggling, he jumped in to help. He was caught in an undertow — and drowned. All of the children survived.
Bobby Orseck was 43 years old, and left behind a widow, Phyllis, and three young children: Bonnie, Jonathan, and Gary, who today is a prominent lawyer in Washington, D.C.
Bobby was born in New Rochelle, New York, but grew up in Liberty, a small town in the Catskills, where he played basketball on his high school team, and where on occasion, he went up against a tall forward from Woodridge High by the name of Aaron Podhurst.
Bobby went to undergraduate school at Cornell, and like his father and brothers, who were all lawyers, later went to law school, also at Cornell. He scored the highest grade in the New York bar exam, and later was a law clerk on the New York Court of Appeals. After serving as a special assistant attorney general in New York State for a couple of years, Bobby moved to Florida where he became active in the Dade County Bar and The Florida Bar.
Bobby initially joined Nichols, Gaither, Beckham, Colson, Spence & Hicks, a firm that produced many of Miami’s most prominent lawyers and judges, including Bill Colson, J.B. Spence, Aaron Podhurst, Bob Josefsberg, Alan Schwartz, and Peter Fay. He was hired at that firm by Alan Schwartz, who would later serve for many years on the Third DCA, first as a judge and later as its chief judge.
In 1967, when the Nichols firm disbanded, Bobby and Aaron Podhurst formed their own firm — Podhurst Orseck. Aaron handled the trial work while Bobby handled the appellate work.
By the time of his untimely death in 1978, and despite a slight stutter in his speech, Bobby was one of the premier appellate lawyers in Florida. By all accounts, he was a lawyer’s lawyer. He appeared as counsel of record — almost exclusively for plaintiffs — in more than 200 federal and state appellate decisions
Many of these decisions changed the face of Florida law. I will provide you with only three brief examples:
In West v. Caterpillar Tractor he convinced the Florida Supreme Court to adopt the doctrine of strict liability in product liability cases, despite defense arguments that judicially creating such a doctrine was inconsistent with the Legislature’s enactment of the Uniform Commercial Code.
In Auburn Machine Works v. Jones he persuaded the Supreme Court to reject the open and obvious danger exception to a manufacturer’s liability, and instead, to hold that the obviousness of the hazard is merely an element to be considered when apportioning fault.
And finally, there was Scarpetta v. DeMartino, known as the case of Baby Lenore, which Bobby and our firm handled pro bono, and which received national media attention. In that case, the biological mother sought the return of the baby she had given up for adoption in New York. When the biological mother sued the adoption agency, a New York court ordered the adoptive parents to surrender the child. By then, the adoptive parents had moved to Florida. Bobby represented the adoptive parents who had never been a party to the New York proceedings and were, therefore, not bound by its judgment. After the trial court granted custody to the adoptive parents, Bobby defended the ruling before the Third DCA, which affirmed the ruling in favor of Bobby’s clients, after noting that this “appears to be one of those tragic situations in which one of two innocent parties must suffer.” Bobby eventually persuaded both the Florida and U.S. Supreme Courts to deny certiorari.
At the time of his death, one of his court adversaries noted that “Bobby Orseck had more impact on civil law in Florida, just through his brilliance in appellate work, than any lawyer I’ve known in the past 20 years.”
Bobby also had a human side. And one of his quirks — not surprising for a lawyer — was that he was a tad absent minded. One afternoon Aaron Podhurst saw him in the parking garage looking for his car. Bobby told Aaron that he had searched the garage, could not find his car, and that his car had been stolen. Bobby called the police, who proceeded to fill out a stolen car report. Later that day when Aaron was about to drive Bobby home, it dawned on Bobby, and he blurted out — “Oh [shoot], Lynn Fromberg (a lawyer and friend of Bobby’s) drove me to work today.”
Bobby’s untimely death was tragic, but he died as he had lived — helping others. This month marked the 50-year anniversary of the Robert Orseck Memorial Moot Court Competition hosted by the Young Lawyers Division. It is fitting the YLD has named its annual competition after him, because in his life and career Bobby Orseck served as an example that the law is still a noble profession and not simply a business. And that even a young lawyer — relying mostly on his or her intelligence and the love of their craft — can make a significant impact.
I hope that someday in the future, someone will say of more than one lawyer what was once said of Bobby Orseck: “That each Floridian is a little richer, his life a little better, and his liberty a little more secure because Bob Orseck, the lawyer, practiced in this wonderful state.”
Peter Prieto
Miami
