The Bulletin: A Century of Service to Miami-Dade

DCBA FEATURED EVENTS
Bulletin
THE
DADE COUNTY
BAR ASSOCIATION
(For more information go to www.dadecountybar.org)
1/05
“ A C e n t ur y o f S e r v ice t o M i a m i - D a d e ”
123 N.W. First Avenue Miami, Florida 33128 / www.dadecountybar.org / January 2011
1/20
PRESIDENT’S MESSAGE
STEVEN W. DAVIS
Wisd om is kn ow in g w hat to do
next; virtue is doin g it.
~David Star Jordan,
The P hilosoph y of Despair
A t o u r S ep t e m b e r l u n ch e o n ,
Florida Supreme Cour t Justice
R i c ky Po l s t o n ch a l l e n ge d a l l
attor neys to not only practice
and act ethically – to repor t
attor ney misconduct when we
see it. Not only is it the right
thing to do for the profession,
we are required to do so. The
P re a m bl e
to
the
Ru l e s
Regulation The Florida Bar puts
our self policing at a high level:
“Neglect of these responsibilities compromises the independence of the profession and the
public interest it ser ves.
Justice Polston did more than
just appeal to our obligation to
fulfill our professional responsibilities; he g ave ver y famous
examples where vir tues failed to
act and where it did. The failure
was
in
the
fa m o u s
Kitty
Genovese case where a woman
was attacked and stabbed for
over twenty minutes and none of
the 38 bystanders helped. That
example is followed by the heroic actions of the passengers on
United Airlines Flight 93 who on
9/11, act ed a nd li kely saved
hundreds of lives by stopping
that horrible hijacking.
We a l l l i ke t o t h i n k t h a t w e
would, when confronted with a
tough situation that we would do
the right thing and tr y to make a
d i f fe re n c e. Th e ex a m p l e s a re
cer tainly the extreme but the
point is clear - to do the right
thing is vir tuous.
This is not
always an easy thing to do in our
practice, but that is precisely
wh a t o n e M i a m i - D a d e C o u n t y
lawyer did in September, 2009.
A l a n S a kow i t z ( o n e o f
our
Januar y speakers) went through
g re a t s t ep s d e t e r m i n i n g t h e
right thing to do- and then did
so-in repor ting Scott Rothstein
to the FBI. While I won’ t take
away from Alan’s coming presentation, I will tell you that in par t
of Alan’s thinking, realizing that
in
Au g u s t
of
2009,
Scott
Rothstein was a powerfully connected political figure who traveled in the company of off-duty
police officers, security guards
and appeared to take care of any
criminal complaint.
It took
great braver y for Alan to do what
he did and although he had to
think about his actions carefully,
his decision was made on not
only doing the right thing, but
making sure that he protected
others from a fraud that was
being perpetuated.
So, when Alan addresses the
DCBA in Januar y, we will not
only be hearing about a fascinating stor y by a ver y brave and
ver y ethical attor ney, but we will
also be hearing about that we all
should take action when warranted.
Hopefully most of us will not be
confronted with such a massive
fraud, but we must comply with
our oaths as Florida attor neys.
Alan’s book, Miles Away.. Worlds
Ap a r t , E m p ow e r i n g l e s s o n s
gleaned from the Experiences of
the Rothstein Whistleblower, give
a g reat demonstration of the
va l u e s w e s h o u l d fo l l ow. Th e
contrast between the world of
mo ney, luxu r y ho uses, yachts
a n d fa n cy c a r s i s c o n t ra s t e d
with Alan’s own community – an
or thodox Jewish community in
Nor th Miami Beach where the
f r i e n d s h i p, s u p p o r t a n d l ove
were the qualities that were recognized and appreciated. Alan
could
h ave
easily
been
a
bystander- but he chose the path
of action and vir tue. A message
we should all follow.
1/13
1/19
6:00 p.m – 9:00 p.m Legal Line, DCBA’s call-in legal information
service. Volunteer attorneys provide legal advice to our community, a
great way to start your year.
11:30 a.m. General Membership Luncheon – guest speakers
Scott Hiaasen and Alan Sakowitz – Hyatt Regency Hotel
8:30 a.m. – 1:00 p.m. Grow Your Practice seminar – Common
Sense Strategies to Market, Network and Develop Tools to Succeed
5:30 p.m. DCBA Florida Registered Paralegals Committee meeting
DCBA Offices –join your paralegal colleagues
The Honorable Stephen Breyer
Associate Justice, United States Supreme Court
STEPHEN BREYER
*
“Making Democracy Work, A Judge’s View.”
A Members Only Event
February 15, 2011
11:30 am to 1:30 pm
Hyatt Regency Miami Hotel
400 SE 2nd Avenue
Miami, Florida
Justice Breyer will discuss his new book “Making Democracy Work, A Judge’s View.”
Signed books will be available for purchase following the luncheon.
*"The Collection of the Supreme Court of the United States."
*
PAST DCBA PRESIDENT J.B. SPENCE INDUCTED INTO THE AMERICAN TRIAL LAWYER HALL OF FAME
By: Oliver A. Ruiz
The Dade County Bar Association
is proud to announce that DCBA
Past President J.B. Spence was
recently inducted in The American
Trial Lawyer Hall of Fame.
The
A m e r i c a n Tr i a l L aw ye r H a l l o f
Fa m e w a s e s t abl i s h e d by Th e
American Trial Lawyer magazine
and The American Trial Lawyers
Association to honor exceptional
civil plaintiff and criminal defense
trial lawyers throughout American
histor y.
Past inductees include
John Adams, Clarence Darrow, and
Thurgood Marshall.
Mr. Spence is nationally known as
the Dean of Tor ts, and has spent
most of his life as a lawyer in
Miami.
He was born in
Russellville, Arkansas, and spent
his
b oy h o o d
in
Ta l l a h a s s e e,
Florida. Mr. Spence ser ved in the
U.S. Navy in both the Atlantic and
Pacific Theatres during World War
II. He credits the G.I. Bill for having “transfor med” his life, as it
allowed him to seek an education
in institutions of higher learning.
Mr. Spence studied law at the
University of Miami, and began
his legal career as an Assistant
Attorney General of the State of
Fl o r i d a
under
the
H o n o rabl e
R i ch a rd
W.
Er vin,
wh o
later
became a Justice of the Florida
Supreme Cour t. After his time in
public ser vice, Mr. Spence became
an
associate
at
a
p re m i e r
Plaintif f ’s personal injur y fir m,
and ultimately became a par tner
in the fir m, which became known
a s N i ch o l s, G a i t h e r, B e c k h a m ,
Colson, Spence and Hicks.
The
late Perr y Nichols, Senior Par tner
of the fir m was an impor tant mentor
to
M r.
S p e n c e,
wh o
he
d e s c r i b e s a s h av i n g b e e n “ a n
absolute giant”. Mr. Spence also
c re d i t s t h e m a ny j u d ge s a n d
lawyers who offered him advice, as
well as, oppor tunities to ser ve on
impor tant legal committees, for
having ser ved as mentors to him
during his career.
Mr. Spence founded the renowned
fir m Spence, Payne, & Masington
in 1967, the same year he garnered the first million-dollar-plus
verdict in Florida.
He maintains
this legacy at the Cochran Fir m,
where he currently practices. Mr.
Spence has considered his life in
the cour troom as precious.
He
considers it a privilege to have
represented thousands of families
and individuals during the course
of his practice, and likens his
experience to the biblical stor y of
David and Goliath, as many times
h e h a s rep re s e n t e d i n d iv i d u a l s
who have sued major corporations.
One motivating factor to represent
“the little guy” during his career
was the generosity shown to him
by h i s m e n t o r s, a s d e s c r i b e d
above.
Mr. Spence is looking forward to a
milestone in his legal practice, as
he will soon be reaching the 60th
anniversar y of his admission to
the Florida Bar on Februar y 5,
2011.
Among his long list of
accolades and accomplishments,
Mr. Spence has ser ved on the
Constitution Revision Committee,
the Florida Judicial Nominating
Committee and has authored two
books, “Final Argument” and “The
Life of a Trial Lawyer”.
The Dade County Bar Association
proudly congratulates Mr. Spence,
Past President of the DCBA, for
his induction in The American Trial
Lawyer Hall of Fame.
*Oliver A. Ruiz is an attorney with
the law firm of Malloy & Malloy,
P.A., and focuses his practice on
intellectual
property
litigation,
trademark and copyright matters.
He
can
be
reached
at
[email protected].
Bulletin
THE
DCBA BULLETIN • J ANUARY • PAGE 2
Upstairs at the Third DCA:
The General Duties of an Appellate Law Clerk
Part I
Dade County Bar Association
By: Kimberly J. Kanoff
DADE COUNTY BAR ASSOCIATION
Board of Directors 2010-2011
The following ar ticle is the first par t of a series that deals with my personal experiences at the Third
DCA as an appellate law clerk for the Honorable David M. Gersten. It is not exhaustive and may differ from other law clerks’ experiences in my cour t or any other cour t.
OFFICERS
STEVEN W. DAVIS, President*
ANDREA S. HARTLEY, President-Elect*
GARRETT J. BIONDO, Vice President*
MARY LESLIE SMITH, Secretary*
HERMAN RUSSOMANNO, III, Treasurer*
MATTHEW J. RIDGELY, Executive Director
JOHNNIE M. RIDGELY, Executive Director
(1965-2006)
GROUP ONE
CHRISTOPHER M. MALEK
MATTHEW S. MAZZARELA
JORDAN A. DRESNICK
AMY J. SANTIAGO
JANE MUIR
ANDREW B. THOMSON
GROUP TWO
STEPHANIE CARMAN
DAMIAN THOMAS
BARBARA VINIEGRA
SORRAYA M. SOLAGES
JOSHUA J. HERTZ
CHRISTINA McKINNON
GROUP THREE
JAMES A. HANNON
MICHAEL S. POPOK
BENJAMIN L. REISS
THOMAS A. TUCKER RONZETTI
DAVID BONHAM
MANUEL L. CRESPO, Jr.
GROUP FOUR
THOMAS W. LOGUE
MARK F. RAYMOND
CARLA M. BARROW
JOSEPH RAIA
CAROL C. LUMPKIN
THOMAS M. SANTORO
GROUP FIVE
MICHAEL R. BAND
PAUL MORRIS
JEFFREY RYNOR
NEIL FLAXMAN
JACQUELYN NEEDELMAN
LEONARD ELIAS
JUDITH M. KORCHIN, ABA Delegate 2008-2010
DADE COUNTY BAR ASSOCIATION
YOUNG LAYWERS SECTION
BOARD OF DIRECTORS 2010-2011
OFFICERS
Stephanie L. Carman, President
Sorraya M. Solages, President-Elect
Suzette L. Russomanno, Secretary
Lisa M. Pisciotta, Treasurer
2009-2011 DIRECTORS
Geri Fischman
Bradley Kaplan
Jacqueline C. Ledon
Amy J. Santiago
Andrew B. Thomson
Michael Trauben
Ethan Wall
2010-2012 DIRECTORS
Darlene Corey
Rene J. Garcia Jr
Adilia Quintana-Hedges
Monica Rossbach
Adam Shapiro
Joanna Thomson
Barbara A. Zambrano
BULLETIN COMMITTEE
Oliver A. Ruiz, Chair
Jane W. Muir, Vice-Chair
123 NW First Avenue #214
Miami, Florida 33128
305-371-2220
EX – OFFICIO
Sookie Williams
KIMBERLY J. KANOFF
I. Introduction
At the Third DCA, there are ten judges. Each judge has two law clerks who they rely on heavily to help do their jobs. Some
judges have two permanent law clerks or two rotating law clerks. Other judges have one permanent and one rotating law
clerk. As such, open positions are scarce at the Third DCA.
If you are for tunate to have the oppor tunity to clerk for a Third DCA judge, you can expect cer tain responsibilities for the
job. The job can be divided into several general duties: reading, researching, writing, editing, and proofreading. Each area
is essential and dependent on the other areas.
A.
Reading
In general, for each appeal, I spend several hours reading through the briefs, the transcripts, the record on appeal, appendices when filed, and applicable law. Sometimes, it takes an hour to review a file; other times, it takes several days to truly
comprehend the case. Often, attorneys question whether the judges and law clerks actually read all the materials. However,
I can assure you that at the Third DCA, every judge and law clerk reads through the entire file to make sure the result is
correct.
The law clerks and judges also read the Third DCA’s ready-to-issue circulating opinions. They review current cases from the
United States Supreme Cour t, the Florida Supreme Cour t, and the other DCAs. I also read the Miami Daily Business Review,
the Florida Bar Journal, the Florida Bar News, and other publications.
B.
Researching
Par t of the job includes researching. In order to be a law clerk, one must have superb legal research skills. Some have
taken courses in law school to improve their research skills; others have learned by trial and error.
The amount of time and level of research required depends on the type of case. Law clerks typically research relevant case
law, statutes, rules of cour t, constitutional provisions, and legislative history. Law clerks may also review law reviews, bar
journal ar ticles, and legal treatises that discuss the relevant topics. The research is mostly focused on state law, but in
some cases, federal jurisdictions or other state jurisdictions apply.
C.
Writing
After reading the file and researching the relevant law, the writing process begins. The writing process star ts with organizing ideas and ends with proofreading. Writing is also an essential skill for every law clerk.
The first step in the writing process is preparing a summary of the case. A law clerk prepares summaries of oral argument
(OA) cases for the three-judge panel. The summary presents the essence of a case and is as shor t as possible without sacrificing accuracy. This task is an exercise in putting (a.k.a. summarizing) the contents of the briefs and record into a twoto-three-page easy-to-read and easy-to-understand document and often provides a quick refresher of the case before OA.
After preparing a summary, the next step is to analyze the researched issues in a memorandum. In our office, we call these
memoranda “A&A’s,” which stands for Advice and Analysis. These memoranda provide a recommendation for the case with
suppor ting analysis and discussion of the relevant issues, facts, and case law.
In some offices, the judges also require their law clerks to prepare primary and secondary memoranda. The primary memoranda are where the law clerk writes extensively on cases that have been assigned to their judge. The secondary memoranda are usually less intensive, but at times more complex, and are written on cases that the judge is not the assigned
judge.
In addition to writing summaries and memoranda, the law clerks are often charged with preparing draft opinions. For example, after the judge returns from OA and conferencing with the other judges, he or she will instruct the law clerks how the
opinion should be drafted, what issues are to be addressed, and the outcome of the case. The law clerks will prepare the
opinion according to these instructions. If the law clerk prepares a draft opinion for the judge, the judge will make the necessary changes. Some judges will draft the opinion instead. Regardless of how the opinion writing process star ts, rest
assured that, in our office, all hands and eyes will be on the opinion at some point.
D.
Editing and Proofreading
As par t of the writing process, law clerks understand the impor tance of editing and proofreading. The editing process
involves several drafts. Everyone in our office will read each draft opinion and make suggestions. Some suggestions are
implemented into the opinion, while others are not. However, the judge, of course, is the final decision maker on every word,
comma, and conclusion.
It is impor tant to realize that a simple three-page opinion may have undergone six-to-nine drafts to reach perfection. In our
office, we use a proofreader’s checklist. At least three eyes need to run through a document for proofreading purposes. This
checklist safeguards against typographical and legal or logical errors leaving our office.
In the event a typo slips through the cracks, then we still have an oppor tunity to correct it before the opinion is published.
About a week before the opinions are scheduled to be released, they are circulated around the cour t for the judges, law
clerks, and other staff to review. This process guarantees that the Third DCA’s opinions are the best in the State of Florida.
II.
Conclusion
Now that I have described the general duties of an appellate law clerk, one can have a better understanding of the work
done on cases. Par t II of this ar ticle will discuss the specific duties of a Third DCA law clerk. Every day brings a new challenge, and I am grateful to have the oppor tunity to be par t of one of the best cour ts in Florida.
* Kimberly J. Kanoff is a senior attorney for the Honorable David M. Gersten at the Third District Court of Appeal in Miami, Florida.
Ms. Kanoff is adjunct faculty at Ave Maria School of Law, where she teaches Appellate Practice, a coach for the St. Thomas
University School of Law Mock Trial Team, and co-chair of the Dade County Bar Association Appellate Practice Committee. She can
be reached at [email protected].
As 2011 approached, New Year’s resolutions
filled our thoughts and some were made. Many
resolutions center around living happier, healthier and longer lives either through more exercise,
tr ying new things or helping others. As you continue to reflect on the past year, hopefully you
will notice the YLS was and remains the perfect
way to satisfy these resolutions.
Over the past several months, we have helped
each other advance professionally and personally. The Section has co-sponsored some dynamic
CLE programs, organized various “Lunches with
the Judges” and held numerous social events from happy hours to
mentoring mixers and we have even thrown in some exercise with our
kickball tournaments. We have also held holiday par ties of children
in need, ser ved a meal to those less for tunate and collected food for
our Veterans. Overall, all of us have made a difference in the community with donations of time and money.
STEPHANIE CARMAN
Please renew your commitment to the Section and plan to par ticipate in some of our wonderful programming.
Over the next few
months, in addition to our children’s programming, you will have the
oppor tunity to assist recent law school graduates. On Januar y 12,
2011, the Section’s Bar Passage Program will commence at the
University of Miami School of Law. The Program was created to
increase the number of minority law school graduates who pass the
Florida Bar examination. It has expanded to any graduate of an ABA
accredited law school who has registered to take the Florida Bar
examination.
The Program focuses on providing assistance and
feedback to improve writing skills on the essay por tion of the bar
examination. We are seeking attorneys to ser ve as a tutor to the
graduates. Tutors will critique practice essays and meet with students to discuss strategies for success. The Program will conclude
on Februar y 9, 2011 and generally requires a commitment of
approximately 10 to 12 hours. Tutors will receive CLE credits. For
additional infor mation and to sign up, please contact Committee
Chair Geri Fischman at [email protected].
Again, as the New Year star ts I encourage you to stay involved. As
the members of our committees know, you do not need to donate a
lot of time or money to make a difference in our community. Please
consider how the Section can help you achieve your resolutions and
join us for at least some of our programming.
Wishing you a Happy, Healthy New Year!
Stephanie
DO YOU NEED CLIENTS?
The DCBA can help you build your practice!
Build your client base through the Dade County Bar Association's NEW Lawyer Referral Service. The DCBA has been providing legal assistance to the public pro bono for more
than 94 years. As a result, the community looks to the Association for legal assistance. Each year, DCBA staff field more than 20,000 calls from the public with various legal
questions and problems.
In recognition of the high quality of services provided by the Dade County Bar Association, the Florida Bar has delegated administration of its Lawyer Referral Service, or
LRS, to the Association. Calls to the Florida Bar’s LRS will be answered by a Dade County Bar Association staff member who will take the client’s name, address and telephone number, and basic facts about their case. The LRS staff screens each call to determine if the caller should be referred to an attorney. Only callers who are able to pay
an attorney to handle legal matters are referred to LRS panel members. Callers unable to afford attorneys' fees are guided toward community pro bono services or to attorneys in the LRS Low Fee Program. When appropriate, staff refer callers to community resources for non-legal help.
To join the LRS, call at (305) 371-2646, or you can find the application and rules on the Association’s website www.dadecountybar.org.
YLS LUNCH WITH THE JUDGES
On Wednesday, October 20, 2010 the YLS hosted its monthly Lunch with the Judges
and this month’s event featured U.S. Ma gistrate Chief Judge Stephen Brown, U. S.
Magistrate Judge Chris M. McAliley and U. S. Magistrate Judge John J. O’Sullivan.
Andrew Thomson, Director – DCBA/YLS, U.S.
Magistrate Judge O’Sullivan, U.S. Magistrate
Judge McAliley, U.S. Magistrate Chief Judge
Brown and Stephanie Carman, President –
DCBA/YLS
This Month’s Featured Member Benefit
Regal Cinemas: Premiere Super Saver Movie Ticket
Save $3.00 on a regular adult movie ticket for all movies
and show times!
All Dade County Bar Association members have the opportunity to save $3.00 on a
regular adult movie ticket for all movies and show times! Tickets are available at a
reduced price of $7.50 each and have no expiration date. This benefit was initiated to
provide you with enjoyable incentives and the opportunity to enjoy a movie and save
money at the same time.
How can you start receiving this wonderful benefit today? To purchase discounted movie
tickets contact the DCBA at [email protected] and type in Movie Ticket Discount
in your email subject line or call (305) 371-2220 and we will be happy to provide sales
information.
DCBA BULLETIN • J ANUARY • PAGE 3
PRESIDENT’S
DCBA BULLETIN • J ANUARY • PAGE 4
GENERAL MEMBERSHIP LUNCHEON
On Tuesday, November 9, 2010 the Dade County Bar Association hosted the monthly general membership luncheon at the Hyatt Regency Hotel. The guest
speakers were John Kozyak who discussed the 7th Annual Minority Mentoring Picnic and Wifredo Ferrer, U. S. Attorney for the Southern District of Florida.
The luncheon was sponsored by Northwestern Mutual.
Michelle Samaroo and Jennifer Ellis, President – Wilkie D.
Ferguson, Jr. Bar Association
Wifredo Ferrer, U.S. Attorney – Southern District of Florida, Juliet
Roulhac, Fla. Bar Board of Governors and Steven W. Davis
Kristen Morcos and Charles Balli
John Kozyak and Steven W. Davis, President - DCBA
Nina Mandel, Ashley Aronowitz-Barron and Barbara Reisberg
Genevieve Mendes-Weaver and Candis Trusty, Chair – DCBA
Legal Aid and Office of Public Service Committee
Joshua Collier, Sharon Langer, Executive Director
– Legal Aid Society and Paula Black
Patrick Dempsey, Bill Aaron, Past President –
DCBA and Jeffrey E. Marcus
David Savit and Vincent Alexander
Darling Lie-Neilsen,Financial Representative Northwestern Mutual and Andrea Hartley,
President-Elect - DCBA
Annie Zaffuto, Carol Lumpkin, Ayman Rizkalla,
Karen Fine Silver, Stephanie Moot
Rich Goodman, Wealth Management
Advisor – Northwestern Mutual
Wifredo Ferrer, U.S. Attorney - Southern
District of Florida
Rich Goodman presents Michael Ambrose
with 2 Miami Heat Tickets, the door prize.
DCBA YLS 3 RD A NNUAL C O - ED K ICKBALL T OURNAMENT
On Saturday, October 30 the DCBA YLS hosted the 3rd Annual Kickball Tournament at Tropical Park. All proceeds will benefit the
YLS Homeless Outreach Committee programs. The event was sponsored by Trial Graphics and MyMotionCalendar.com. Eight teams
participated and Genovese Joblove & Battista, P.A. defeated United Automobile Insurance Team in the finals.
Genovese Joblove & Battista, P.A. Team: Jarrell Johnson, Alejandro Almirola, Frank
Massabki, Aaron Blynn, Curtis Lando, Marty Keane, Jesus Suarez, Patty Lopez,
Allison Rodriguez
United Automobile Insurance Team: Oliver Wragg, Ivette Abreu, Justin Cincola,
Alina O'Connor, Chasity Moore, Roxanna Crespi, Pedro Ortiz, Ela Suris, Adam
Shapiro, Ali Zolfaghari,Thayer Musa, Stephanie Centeno, Raquel Campos,
Lawrence Suarez, CJ Hudson
Steven W. Davis, President – DCBA, Jack Reiter, CoChair – DCBA Appellate Court Committee, Judge
Richard J. Suarez, Judge David M. Gersten, Judge
Vance E. Salter, and Kimberly Kanoff, Co-Chair –
DCBA Appellate Court Committee
Senior Judge Alan R. Schwartz, Pam Perry and
Edward G. Guedes
Pam Perry and John C. Lukacs
Florencia Iglesias and Lazaro Vazquez
Lindsay Haber, Irene Porter and Kacey Bennett
Alex Alvarez and Juliet Roulhac, Florida
Bar Board of Governor
Dinah Stein and Chris Johnson
Eddy Valdes, Alex Alvarez, Valerie
Prochazka and Miguel Amador
TODAY’S PARALEGAL: FLORIDA BAR REGISTRATION
By: Trish Moore, FRP
As “The Rodent” recently noted in the Daily Business Review, “Secretaries are to lawyers as wheels
are to a car. Without their secretaries, lawyers can rev their engines all they want, but they’re not
going anywhere.” The same is true of paralegals. No lawyer is without a host of stories of how a
paralegal at one time or another has saved him from embarrassment. There has always been some
crossover from Legal Secretary to Paralegal, but the role of paralegals has changed over the years.
Not only do they have varying backgrounds, experiences, education and job responsibilities, but a
paralegals’ role differs depending on the office’s need.
We all know there are rules that very definitively delineate the role of a paralegal versus the role of
the attorney (read: what tasks a paralegal is not permitted to perform [See: Chapter 20 of the Rules
Regulating the Florida Bar]), but do we all know what delineates the role of a paralegal as opposed
to a secretary? If we do not know yet, we will soon. A recent change in Florida Bar Rules will clearly define the role of a paralegal the responsibilities of that position. Paralegals registered with the
Florida Bar already adhere to certain rules and regulations, as well as ethical obligations, however
the new rules will go even further to define the position and its requirements.
In the past, a paralegal may have earned the title based solely on a firm’s internal policy; through
many years of experience; or, through an educational program. However the title was earned, there
were no further requirements: once a paralegal, always a paralegal. This is quickly evolving, especially in light of a major change to the rules of the Florida Bar. Effective March 1, 2011,
“Grandfathering” will come to an end, which means that applications for registration by paralegals
with the Florida Bar based mainly on many years of experience will not be accepted. Another, and
quite serious, potential change is also being considered that would prevent billing for a paralegal’s
time if that paralegal is not registered with the Florida Bar. There is current case law on this specific issue.
A paralegal’s role requires being aware of changing rules; changing technology; and available
resources. It is a role that requires independent and critical thinking. When registered with the
Florida Bar, as well as other paraprofessional organizations, it is a role that requires adhering to professional rules of conduct and ethics as well as continuing legal education. The title of today’s paralegal is accompanied by all of the investment of time and expense that a professional in any field
must make. For that reason, and by way of survey, it is the consensus of the members of this profession, that regulation is ripe. It is a just decision to both the paralegal who has made an investment in his career, as well as to clients who invest in the paralegal’s knowledge on their case, that
our profession be regulated. The extent to which the profession should be regulated is a subject for
debate, but some regulation is certainly in order. Today’s paralegal is not yesterday’s Legal
Secretary.
* Trish Moore is a member of the FRP Committee of the Dade County Bar Association; is registered with the
Florida Bar; a member of National Association of Legal Assistants; and a member of the South Florida
Chapter of Women in eDiscovery. Ms. Moore is the administrator and paralegal of Michael J. Rosen, P.A.,
a small firm that specializes in Federal Criminal Law. Ms. Moore welcomes your comments at: [email protected].
DCBA BULLETIN • J ANUARY • PAGE 5
THIRD DISTRICT COURT OF APPEAL SEMINAR AND RECEPTION
On Friday, November 12, 2010 the DCBA Appellate Court Committee host its Annual Fall
Seminar at the Third District Court of Appeal. This year’s event featured a multi-media
extravaganza and interactive program on the topic of Ethics and Decision Making: You Be
The Judge. Panel members included Judge David M. Gersten, Judge Richard J. Suarez and
Judge Vance E. Salter. A reception followed the seminar.
DCBA BULLETIN • J ANUARY • PAGE 6
I SSUES
IN
V ALUING I LLIQUID M ARITAL A SSETS
IN AN
A DVERSE E CONOMIC E NVIRONMENT
By: David F. Spigelman and Sam Ballen
Privately-held companies and/or small businesses can be difficult to value even in an economic environment that is benign. In a recessionar y environment or in tougher economic
times, businesses can be even harder to value.
When the main marital asset is a family business or shares in a privately-held company in a
divorce case, selling the company to raise revenues may not be a viable or desirable option.
The Need for Valuation Exper ts
In most cases, when a small business or privately-held company is a significant component
of the marital assets, it will be necessar y to
have an exper t evaluate the market value of the
business both under the present economic conditions, and its potential value when market conditions improve to a more nor mal level.
DAVID F. SPIGELMAN
Most individuals reading this ar ticle will know that “exper t opinion” is
analysis and/or testimony by a person qualified to authoritatively provide analysis/opinion due to their education, special training, skill,
study, experience and/or familiarity with the subject matter. For the
purpose of divorce cases and other family law issues, generally the
state’s rules of evidence will define the scope and nature of admissible exper t opinion testimony.
It is impor tant to evaluate the potential exper t witness for valuation
purposes with respect to the following qualities:
1) Competency – What is the educational background and/or credentials earned by the potential exper t? There are many factors that
should be addressed in evaluating the discount or premium that determines the true value of the asset. Evaluating market conditions may
at times be crucial to making an accurate assessment of the value of
an illiquid asset and deter mining the appropriate strateg y for either
selling or maintaining possession of an asset or business.
2) Confidentiality – The exper t should not disclose infor mation
obtained during other professional engagements except with the
client’s consent or pursuant to an appropriate order of the cour t.
Your client has ever y right to expect that valuations provided by an
exper t will remain confidential and will only be used to advance
his/her interests in the proceedings at hand.
3) Objectivity – Valuation exper ts should avoid taking positions that
might impair their impar tiality. The valuation should be made using
accepted techniques of analysis and based on fundamental principles
of finance.
4) Absence of Conflicts of Interest – The exper t should evaluate
whether he/she has any current or potential conflicts of interest with
regard to the case at hand and must check whether any adverse par ty
in the litigation is a current or past client of the exper t or the exper t’s
fir m. Even when no direct conflict of interest exists, the exper t should
examine whether the current legal matter could result in an adverse
impact to any of his/her (or his/her fir m’s) existing clients.
Standards of Value
There are different standards used to measure value by valuation analysts. These include:
1) Fair Market Value
2) Fair Value
3) Strategic/Investment Value
Fair Market Value is defined by the IRS in Revenue Ruling 59-60 as:
“The price at which the property would change hands between a willing
buyer and a willing seller, when the former is not under any compulsion to
buy and the latter is not under any compulsion to sell, both parties having
reasonable knowledge of the facts.”
Fair Value can have several meanings, but usually means the value of
the shares of a minority/dissenting shareholder immediately before
the effectuation of the action to which the dissenter objects. Another
meaning of “fair value” is given by the Financial Accounting Standards
Board (FASB) and is defined as “the price that would be received for
an asset or paid to transfer a liability in a transaction between marketplace par ticipants at the measurement date.”
Strategic/Investment Value considers the value of an asset to a specific buyer or seller. Sometimes a strategic investor may pay a premium to market value because of a synerg y, real or perceived, with
other assets they already control. When an investor can be found who
is willing to pay a premium to the market, many of the issues we are
considering here become irrelevant, because under such conditions it
is likely that a straight sale may be deemed to be the best option to
liquefy an investment which makes it easier to divide marital assets.
If a strategic buyer cannot be found under current market conditions
but may be able to be found once market conditions improve, this
would create another circumstance where it might be preferable to
wait to sell an asset rather than selling at a less than desirable price.
Valuation Methodologies
There are various methods as to how the exper t
might attempt to assess the value of the business or privately-held shares that we are considering here. These might include:
1) A cash flow valuation technique where cash
flows generated by the business are forecast
into the future and the future cash flows of the
fir m are discounted back to calculate what is
known as a present value. Under this technique,
careful consideration must be made to use the
appropriate “discount rate” which takes account
of the illiquidity of the asset and the difficulty
of marketing the asset in an adverse economic
environment.
SAM BALLEN
2) A price multiples approach where the exper t would assess the likely cash flow generation ability of the business and would look at the
prices paid for similar businesses under current market conditions.
The exper t would use the appropriate multiple and apply it to the
appropriate cash flow measure to come up with an assessment of the
value.
3) An asset-based approach where either book value is calculated or,
in the adjusted net asset method, value is assessed in one of three
ways: i) replacement cost premise; ii) liquidation premise; or iii) going
concern premise.
4) A market approach in which the value of a business is deter mined
in reference to reasonably comparable companies (“comps”) for which
transaction values are known.
There may be other techniques of analysis used in an assessment of
value. These are too numerous to list here and will depend on the
specifics of each situation. It is ver y impor tant to choose the right
exper t who will work to achieve a reasonable and realistic assessment
of the value of an asset under current market conditions.
Considering the Exper t’s Valuation
Optimal Strateg y for your Client
Opinion
and
Choosing
the
In cases where the valuation exper t considers that the current market
conditions are not representative of prospective market conditions, in
some circumstances, it may make sense to wait and see if market conditions improve before liquidating an asset or it may prove a better
strateg y not to liquidate/sell the asset at all.
When viewing an asset that may appear to be illiquid many factors
need to be considered when addressing its disposition. Are the assets
entirely subject to equitable distribution? Perhaps they are not. In
the case of professional ser vices corporations, it is entirely possible
that the goodwill of the company which probably accounts for most of
its value is not corporate in nature but personal goodwill instead. If
so, the shareholder’s spouse would not be entitled to a share of the
asset, thereby discounting the marital value of the business. That is,
an examination as to whether the goodwill is attributable to the business (marital asset) or the reputation and personal reputation of the
shareholder must be conducted. It may be that this personal goodwill
can in fact be considered non-marital in nature.
In the case where an illiquid asset will be held pending an uptick in
the economy, the family lawyer needs to make sure that his/her client
receives an appropriate amount of credits and setoffs related to the
continued operation of the illiquid business. If at the end of the day,
the business owner or shareholder expends funds to maintain the
business while the par ties wait to dispose of the asset the other
spouse should be responsible for one-half of the maintenance expenses. This issue should be addressed in the marital settlement agreement; otherwise, the business owner shareholder may have difficulty
obtaining credits for his maintenance of the illiquid asset. In addition, final judgments of dissolution of marriage should also address
the issue.
If the par ties believe that a defer ment on the sale of an illiquid asset
i s i n t h e i r b e s t i n t e re s t s bu t c o n c e r n s ove r t h e bu s i n e s s
owner/shareholder’s post-dissolution management of the business
exist, the par ties can always move for the appointment of a receiver.
While this may be an expensive and unwieldy option, it does give comfor t to the other par ty with respect to checks/balances over the business owner. A receivership will allow the other par ty to essentially
have a pair of eyes watching over the business to ensure that it is
being managed appropriately.
* David F. Spigelman, PhD is the Chief Economist and Managing
Director of Criterion Associates, LLC. Criterion Associates, LLC perfor ms economic and financial analysis for litigation and other needs,
provides exper t witness ser vices, engages in educational consulting,
and distributes three economics textbooks authored by Dr. Spigelman.
Dr. Spigelman has been a lecturer in economics and finance at the
University of Miami for several years. He earned MA (’84), and PhD
(’86) degrees from Stanford University.
* Sam Ballen, Esq. practices Family and Marital Law in Delray Beach.
He received his Juris Doctor in 1992 from the University of Miami
School of Law and is a member of the Family Law Section of The
Florida Bar.
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--------------------------------------------------------------------------------------------------------------------------------------02/03/2011 Civil Litigation Seminar
_________________________________________
Please Print or Type Name
Dade County Bar Association
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Miami, Florida 33128
_______________________ / _______________
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Telephone Number
Enclosed is my check payable to the Dade County Bar Association in the amount of
$ ________ for ________ reservations.
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Date: January 19, 2011
Time: 8:30 A.M. – 1:00 P.M. Serving Continental Breakfast
Where: The Dade County Bar Association Conference Room
LEGAL AID AUTISM SPECTRUM SEMINAR
On Friday, October 29, 2010, Dade County Bar Association Legal Aid Society presented its first seminar on
the introduction to the representation of clients/families on the autism spectrum disorder. Over 70 attorneys attended this first of its kind training sponsored by Disability Independence Group, Inc. and VERITEXT.
Speakers were Dr. Adreon from University of Miami- Nova Southeastern University CARD, Stephanie Langer
Fechter, Esq. and Matthew Dietz, Esq.
Pictured L – R are: Dr. Diane Adreon, Josh Coller (VERITEXT), Matthew Dietz, Esq. and
Stephanie Langer Fechter, Esq.
DCBA BULLETIN • J ANUARY • PAGE 7
L EGAL A ID S OCIETY PSB “C LIENTS ’ C OMMENTS ”
DCBA BULLETIN • J ANUARY • PAGE 8
DCBA CALENDAR
Dade County Bar Association
January General Membership Luncheon
JANUARY 2011
People Who Make a Difference
Scott Hiaasen
Miami Herald Investigative Reporter
Author of
“Pill Mill” series
Uncovered Massive Prescription Drug Abuse Leading to changes in Florida Law
And
01/04
6:30 p.m. YLS Board Meeting – Hogan Lovells
01/05
12:00 noon Real Property Committee Seminar – Bankers Club
01/12
4:00 p.m. DCBA Board Meeting
01/13
11:30 am General Membership Luncheon Hyatt Regency Downtown
Miami Speakers Scott Hiaasen & Alan Sakowitz
01/18
12:00 noon Professionalism Committee Meeting – DCBA
January 13, 2011
11:30 am to 1:30 pm
01/19
8:30 a.m. Paula Black Marketing Seminar - DCBA
Hyatt Regency Miami Hotel
400 SE 2nd Avenue
Miami, Florida
01/19
12:00 noon YLS Lunch with the Judges- Bankers Club
Advance Registration: $40 members $45 Non-Members $50 at the door
01/20
5:30 p.m
For reservations, please complete the bottom portion of this form and mail it with your check, payable to the Dade
01/25
12:00 noon Business Law and Securities Litigation
Committees Seminar - Akerman
01/31
JD/MD Social – Novecento Coral Gables
Alan B. Sakowitz, Esq.
Author of
Miles Away…Worlds Apart.
Empowering Lessons Gleaned from the Experiences of the Rothstein
Whistleblower.
County Bar Association. Reservations may also be made by credit card, please call the DCBA offices at (305) 3712220.
01-13-11 Luncheon Meeting
Dade County Bar Association
123 N. W. First Avenue #214
Miami, Florida 33128
Please print or type name
Office Phone
FEBRUARY 2011
Enclosed is my check payable to the DCBA in the amount of $
for
____________ reservation s for the General Membership Luncheon on January 13, 2011.
Dade County Bar Association
February General Membership Luncheon
A Members Only Event
The Honorable Stephen Breyer
Associate Justice, United States Supreme Court
*
02/01
6:30 p.m. YLS Board Meeting – Hogan Lovells
02/03
12:00 noon Civil Litigation Committee Seminar – Bankers Club
02/09
4:00 p.m. DCBA Board Meeting
02/10
12:00 noon YLS Lunch with the Judges- Bankers Club
02/10
12:00 noon Probate & Guardianship Committee Meeting
– Lawson Thomas Courthouse
02/11
12:15 p.m. Milton Hirsch Investiture – Dade County Counthouse
02/18
3:00 p.m. Kevin Emas Investiture – Third District Court of Appeal
Reception to follow investiture
02/24-25
YLS School Committee all day Mock trial Competition
02/25
3:00 p.m. Ceremonial Session in Memory of Judge John Fletcher
Third District Court of Appeal
02/15
“Making Democracy Work, A Judge’s View.”
February 15, 2011
11:30 am to 1:30 pm
Hyatt Regency Miami Hotel
400 SE 2nd Avenue
Miami, Florida
Justice Breyer will discuss his new book “Making Democracy Work, A Judge’s View.” Signed
books will be available for purchase following the luncheon.
Advance Registration: $50 Members
Advance Registration deadline is February 9th
Late Registration and at the door (if space permits) $60 Members
For reservations, please complete the bottom portion of this form and mail it with your check, payable to the Dade County
Bar Association. Reservations may also be made by credit card, please call the DCBA offices at (305) 371-2220.
02-15-11 Luncheon Meeting
Dade County Bar Association
123 N. W. First Avenue #214
Miami, Florida 33128
FRP Committee Meeting – DCBA
11:30 am General Membership Luncheon Hyatt Regency Downtown
Miami Speaker: U.S. Supreme Court Justice Stephen G. Breyer
Registration and additional information www.dadecountybar.org
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*"The Collection of the Supreme Court of the United States."
*
Dade County Bar Association
Real Property Committee
Presents
Why Real Estate Attorneys Are At Risk When The Deal Goes Bad:
Why Real Estate Attorneys Get Sued For Malpractice
James A. Marx, Chair
Guest Speaker
Warren R. Trazenfeld
Warren R. Trazenfeld, P.A.
Wednesday, January 5th, 2011
Registration Begins: 11:30 a.m.
Seminar Begins: 12:00 p.m.
Bankers Club
Two South Biscayne Blvd., 14th FL
Miami, FL
Registration includes lunch and CLE Credit
Advance Registration: $35 Members and $45 Non-Members
At the Door- $40 for Members and $50 for Non-Members if space permits
Deadline for early registration is January 4th, 2011
This event usually sells out please make your reservations early
Register online: www.dadecountybar.org by calling (305) 371-2220
or by completing the registration form below and mailing it with your check
One hour total of CLER (includes one hour of Ethics) is pending
Approval from the Florida Bar
--------------------------------------------------------------------------------------------------------------------------------------01/05/2011 Real Property Committee Seminar
_________________________________________
Please Print or Type Name
Please RSVP to [email protected]
and list JD/MD in your subject line
Dade County Bar Association
123 N.W. First Avenue #214
Miami, Florida 33128
_______________________ / _______________
Florida Bar Number
Telephone Number
Enclosed is my check payable to the Dade County Bar Association in the amount of
$ ________ for ________ reservations.