October 1, 2024 Letters
Gifts
This letter concerns Rule 4-1.B(c) of the Rules Regulating The Florida Bar (gifts to lawyers and relatives) promulgated in 1987, which I strongly support, and F.S. §732.806 (gifts to lawyers and other disqualified persons) enacted in 2014, which I strongly oppose. A reading of the complete statute and Shriners Hospitals for Crippled Children v. Zrillic, 563 So. 2d 64 (Fla. 1990), is essential to evaluate my comments.
Rule 4-1.8(c) prohibits a lawyer from preparing on behalf of a client an instrument giving the lawyer or a person related to the lawyer any gift unless the lawyer or other recipient is related to the client.
Discipline ranges from reprimand to disbarment and proceedings are conducted allowing due process to all parties.
Whether a testamentary devise was unduly influenced is fact driven and normally resolved in a separate adversary proceeding. That is called due process justice.
Consideration of due process justice disappears into the wild blue yonder under §732.806, which states in subsection (1):
(1) “Any part of a written instrument which makes a gift to a lawyer or a person related to the lawyer is void if the lawyer prepared or supervised the execution of the written instrument, or solicited the gift, unless the lawyer or other recipient of the gift is related to the person making the gift.”
The statute does not state the effect of violation so I will. Property of a testator devised to a named beneficiary under a valid testamentary instrument which complies with all legal requirements is declared void, solely because of a violation of the statute by a third party, with no consideration of any other fact or circumstance. The constitutional right of a testator has been extinguished without due process and the devised property will be given as a windfall to an unknown person who has done nothing worthy of receiving it. That is due process injustice. (See 14th Amend. to U.S. Constitution and Fla. Const. art. 1, §4).
The Zrillic case considered a “mortmain” statute which provided that an heir could cancel charitable like gifts by a Testator if the Testator should die within six months of the execution of the will. The court held this was an infringement of the Testator’s constitutional right to devise property. The selection of charity-like entities as a group having opportunities to influence a testator, and placing no limit on others who could have such opportunities was held unconstitutional.
I am hopeful that since the Real Property Probate and Trust Law Section supported F.S. §732.806, someone of influence in the section or Bar will concur that there is a responsibility to reconsider whether this statute should be repealed and proceed accordingly.
I do not question the good faith and intentions of those who support F.S. §732.806. I do question their conclusions. I encourage anyone who disagrees with my comments to submit a rebuttal.
George F. Wilsey
St. Petersburg
Escalating Threats
I commend the News for its article, “Federal judges grapple with escalating threats.” Violence and threats of violence against our public servants — or anyone — have no place anywhere.
As the United States Attorney for the Middle District of Florida, I am the chief law enforcement officer for 35 counties in Florida. I have seen a disturbing trend in threat and hate crime cases. In the last two years, my office has charged more defendants for threats or hate crimes than we have ever done in a similar time period. Each case has its own set of facts, but the common goal of the defendants is simple — to threaten to kill or injure someone or to actually attempt to do so. The motivation, too, is simple: hate. Hatred of someone because of their religion, race, or sexual orientation; hatred of elected officials, judges, court personnel, and public officials who are simply trying to do their jobs; hatred born of intolerance.
The threats charged in these cases include some of the worst that can be made. Threats of mass shootings, bombings, murder, genocide, rape, and beheading. Defendants have threatened specific victims, and they have threatened entire classes of people. They have threatened people they know, and they have threatened strangers. They have threatened to harm spouses, children, and other family members of their victims.
And they have threatened judges. In the last year, my office has prosecuted five defendants for threatening federal and state judges, including a Supreme Court justice. The defendant in one case, dissatisfied with the judge’s ruling, threatened he would use his “federally funded stimulus” to hire someone to shoot the judge. He also said that if he could not get to the judge, he would settle for his “child, loved one, etc.”
Through the federal prosecution of these cases, my office has made clear that if you threaten violence, we will investigate you, arrest you, and prosecute you. We are committed to aggressively pursuing these cases with the goal of doing everything we can to disrupt any plan or threat to harm anyone in our community.
Roger B. Handberg
U.S. Attorney for the Middle District of Florida
Frivolous Litigation
In the September News’ Disciplinary Actions section, it was reported that a Ft. Walton Beach lawyer was suspended from the practice of law for three years. What caught my attention was that the lawyer had been admitted to practice in 1960. He has been practicing law for 64 years and is probably pushing 90 years old. My first thoughts were that he must be one tenacious lawyer, as the grounds for his suspension were based on his dogged determination, over a 12-year period, to hold the county responsible for issues relating to a dirt road next to his house.
Whether he was right or wrong, you have to give the man credit for singularity of purpose. The circuit judge stated that the lawyer redebated, quibbled, squabbled, hashed out, disputed, battled, appealed and reappealed, and contested the case through four courts. To me, he would be the kind of lawyer I would want on my side. Certainly, Donald Trump could use this type of lawyer as he winds his way up, down, and through the courts of our land. Although, I have yet to see any of his lawyers sanctioned for anything other than criminal conduct. It would seem that our legal system has ways to impose guard rails against vexatious suits, through court costs and attorney fee awards, rather than suspend the over-zealous advocate.
In any event, the lawyer in question should be back in three years, so those who need the terminator for a lawyer will just have to wait.
Charles McMurry
Tallahassee