It`s Party Time! - Clearwater Bar Association

Transcription

Oct./Nov.
2007
It’s Party Time!
Columns
2 President’s Message
3 Editor’s Comments
5 Ethics
7 Young Lawyers
8 Community Outreach
9 Tax Tips & More
11 Avocat de Famille
13 The Rules Rule
17 Patent, Trademark,
Copyright
19 The Rainmaker Coach
21 Trial Practice
21 Bits & Briefs
23 Bankruptcy
24 Address Changes
24 New Members
25 Member Benefit Program
27 Classified
28 Calendar
Bar News
1 It’s Party Time!
6 Summer Interns Need You
12 Lawyer-to-Lawyer
Advertising
Features
4 Just One Teenager
6 Stetson Hosts Seminar
16 Defending a DBPR Case
23 Pinellas County Paralegals
I
by David Robert Ellis
t’s almost that time again, time
silent auction. Minor League Baseball’s
for the Clearwater Bar’s annual
basket containing passes for admission
Holiday Party! This year’s Holiday
to any minor league ballpark in the
country brought the highest bid. This
Party will be held on Monday, Deyear the Gift Basket Challenge is back
cember 3 from 6:00 until 8:00 p.m. at
the Radisson Central located at 20967
and will be bigger and better than ever.
U.S. Highway 19 North, Clearwater.
Any attorney, law firm, or business may
As past party goers already know, this
donate a themed gift basket for the siDavid R. Ellis
lent auction. This year’s winning basket
is a great event for both adults and
will receive the first ever Gift Basket Challenge
kids. This year’s party will include a wonderful buffet of holiday delights, a cash bar, gift
traveling trophy.
basket silent auction, carolers, musical Jack
Additionally, sponsorship opportunities
Frost, the Children’s Wonderland, and, of
are available for everyone wishing to help raise
funds for the Clearwater Bar Foundation.
course, Santa Claus. Among the activities in
Last year, more than 50 law firms, individual
the Children’s Wonderland will be cookie
decorating, craft making, balloon artists, a
lawyers, and businesses donated money, gift
coloring contest with great prizes, and photobaskets, and other services for the Holiday
graphs with Santa! The only cost to attend the
Party. The generosity of these people made last
Holiday Party is that each guest bring one un- year’s Holiday Party an overwhelming success.
wrapped toy. All toys collected will be donated Thank you to everyone. The money collected
to Religious Community Services who will
helps the Clearwater Bar Foundation to fund
then distribute them to children in our local
the many projects that it sponsors in our comcommunity. Last year we collected nearly 150
munity. These projects include legal clinics
at the Hispanic Center, Ross Norton Recrepounds of toys.
ational Center, and the Pinellas County Clerk
For those of you who have not been to
the Holiday Party and think that it’s just for
of Court Legal Clinics, as well as the Living
kids and their parents, you could not be more
Wills project, the Young Lawyers Division’s
wrong. The ballroom is arranged so that the
Holidays in January, the Religious Community
children’s activities are separated from the adult Services Food Pantry, Gulfcoast Legal Services
pro bono efforts, and the Clearwater Bar Asactivities. This is a great opportunity to socialize with fellow bar members in a fun and festive sociation’s Student Legal Intern Project.
holiday setting. Everyone who visits with Santa
Please remember to RSVP for the Holiday
will have their picture taken for posterity.
Party now. Whether you have attended many
times or this will be your first, we look forward
The Gift Basket Challenge is back again
to seeing you all on Monday, December 3 for
this year. Last year law firms and businesses
provided elaborate themed gift baskets for the
an evening of fun!
2 • October/November 2007 • RES IPSA LOQUITUR
President’s Message
by Gregory K. Showers
H
as it been hot or what? Fall is just around the corner and we are reminded
why it is that we live in Florida. The weather this time of year makes our long
hot summers a distant memory. Now is the time to go outside and enjoy the
many things our city has to offer. Spend some time with your wife, husband, significant
other, kids, friends, or by yourself. Go to Clearwater Beach and enjoy a grouper sandwich. Go to one of our many local parks for a picnic, a hike or bicycling. Go boating on
Lake Tarpon. Or just walk around your neighborhood in the evening.
During the summer it is frequently too hot to enjoy time outside and soon we will
have our annual influx of northern visitors, but right now is the perfect time to just get
away from the office.
I remember as a young boy down in Pompano Beach, I would rush home after
school to drop a fishing line in the canal behind my house with my friends. Of course,
we would not eat anything that we caught, but the enjoyment of catching a fish and
spending time with friends was reward enough. This was an opportunity to catch up on
the latest in school and brag/exaggerate about our abilities on the football field.
It is in that same spirit that I am encouraged by how many members of the Clearwater Bar Association take advantage of the Wild Wild West Bench and Bar-B-Q each
year. What could be more fun than discussing legal issues with some of your distinguished members of the bar and judiciary. It is always a perfect opportunity to get a
little time away from the office and to learn something new, to rekindle that fire for the
law, and leave revived.
I would like to take this opportunity to thank our judiciary. Too often we take your
position for granted. We appreciate your dedication and commitment to the judicial
process.
Stay involved, get involved, more good things are yet to come for the Clearwater
Bar.
Published by
The Clearwater Bar Association, Inc.
314 South Missouri Avenue, Suite 107
Clearwater, FL 33756-5858
Telephone: (727) 461-4869
Fax: (727) 461-0063
Website: www.clearwaterbar.org
E-mail: [email protected]
O F F I C E R S – Terms Expire 2008
Gregory K. Showers, President
Jeffrey A. Albinson, President-Elect
Sherri M. Stinson, Secretary
Peter R. Rivellini, Treasurer
Jewel White Cole, Past President
441-4947
536-8100
462-9009
461-1818
464-3354
D I R E C T O R S – Terms Expire 2008
Joseph A. Corsmeier
536-8100
Stephanie R. Bolton
813-233-7000
John Davis Fernandez
461-4441
Cheryl V. Smith-Khan
464-6962
D I R E C T O R S – Terms Expire 2009
Kimberly A. Campbell
Sherwood ‘Flip’ Coleman
Thomas J. Donnelly
Bridget A. Heptner
461-4955
441-4947
461-4955
726-9799
EX OFFICIO
Christina Green Rankin, YLD Pres.
Jason C. Ester, YLD Pres.-Elect
Andrew B. Sasso, TFB Board of Gov.
Joan M. Vecchioli, Foundation Pres.
Karen France, Executive Director
441-8813
464-3354
725-4829
461-1818
461-4869
EDITORIAL C O M M I T T E E
Connie R. Stephens, Editor
Karen France, Production Manager
John Aldridge, Advertising Manager
446-8899
461-4869
461-4869
The Res Ipsa Loquitur supports participation of the membership in production
of the publication. We encourage you to
submit articles and letters. However, we
reserve the right to edit any submission and
to publish only those articles that we, in
our sole discretion, deem appropriate.
NOTE: The comments, messages, statements
Gathered around a photo of Clearwater Bar’s Habitat for Humanity House completed nearly
10 years ago and a picture of the lot at 911 Metto Street, Clearwater, for the new house to be
started in the next few months are (left to right) Clearwater Bar President Greg Showers,
Pinellas Habitat for Humanity Development Coordinator Tirrah Switzer, and Clearwater
Bar member Tony Griffith who has spearheaded both projects.
and opinions, legal or otherwise, expressed in
the articles herein are exclusively those of the
author and shall not be considered to be those
of the Clearwater Bar Association, its officers,
directors, agents, this publication, its editors or
staff. Additionally, the comments, statements and
articles contained herein are general in nature and
should not be relied upon as a basis for any legal
opinion, action or conclusion on the part of the
reader with respect to any particular set of facts
or circumstances.
Editor’s Comments
RES IPSA LOQUITUR • October/November 2007 • 3
by Connie R. Stephens
I
s it fall yet? My harbinger for a fall season (besides football) is the
rain tree in my backyard. It is still green and it is still hot. Fall
fashion season may be here in spirit but the heat still clings to the
air. However, by the time you receive this issue, November may have
arrived with a chill.
Notwithstanding Florida’s temporary inability to cool down,
sporting events are in full gear. New blood and unknown teams are
taking down some of the giants in the games. The political scene is
Connie Stephens
hotter than our current heat wave, except we may not be seeing any
Editor
presidential candidates campaigning in our area for awhile. Florida
seems to be always on the forefront of political and voting tomfoolery. At least in Miami, one can vote even if you are dead. Please, bring back the hanging chads.
We have the new judicial assignments for the upcoming year. It is always interesting
to see who is moving out of a division and into a new division and why. I do not believe
the answer is “because Chief Judge Robert Morris moved me there.” Just as the Judges
are on the move, I do not see the resurrection of the judicial poll. At two different
events, this topic was broached; however, it appears that this topic is barely breathing.
For those of you addicted to the Animal Planet, a reign is over at the Meerkat Manor. Flower, the dominate female leader of the Whiskers, was killed. After fighting off a
King Cobra, her family continued to forage for food; however, she did not notice that
the Cobra had slithered down into the Whiskers’ burrow. With a new litter of pups,
and the leader that she was, she entered the burrow first. She took a direct venom strike
on her head. The Kalahari is without a true heroine; and I know, I need to get a life.
By the time that you receive this issue, we will be heading towards the holidays and
the college basketball season. The Bench and Bar-B-Que event will be in the bag. The
Oyster Roast Committee will be in full swing. Halloween and all its machinations will
be over and Thanksgiving will be on everyone’s agenda, including Scruffy who never
passes up a good meal. Let the Holidays begin!!!
Connie R. Stephens is editor of Res Ipsa Loquitur and past chair of CBA’s Family Law Committee, Bench Bar Conference Committee and Oyster Roast. She practices family law in Clearwater.
Congratulations!
100% Club
Member Firms
T
hese firms are members of the Clearwater Bar’s 100% Club, demonstrating
their support and pride in their local
bar association.
Albinson & Corsmeier, P.A.
Awerbach & Cohn P.A.
Barrett & Barrett
Baxter, Strohauer, Mannion & Silbermann, P.A.
Bobenhausen & Neubacher, P.L.
Boyer and Schiltz, P.A.
Law Offices of Thomas J. Donnelly
John D. Fernandez, P.A.
Freeborn & Freeborn
Golson Law Firm
Law Office of Richard D. Green
Gruskin & LaBerge, P.A.
Gulfcoast Legal Services, Clearwater Off.
Ingram & Eno, P.A.
Johnson Pope Bokor Ruppel & Burns LLP
Koch, Smith & Hoffman, P.A.
Kwall, Showers, Coleman & Barack, P.A.
Randall J. Love, P.A.
Macfarlane, Ferguson & McMullen
McFarland, Gould, Lyons, Sullivan & Hogan, P.A.
McGuire Law Offices
McManus & McManus, P.A.
Law Office of Thomas O. Michaels, P.A.
O’Connor Law Group, P.A.
Parker & Hafner, P.A.
Peacock & Gaffney
Richard L. Pearse, Jr., P.A.
Peebles & Gracy, P.A.
Perenich, Carroll, Perenich, Avril, Caulfield &
Noyes, P.A.
The Law Offices of Perenich & Perenich, PL
Persante & McCormack, P.A.
Pinellas County Attorney’s Office
Policastro & LeRoux, P.A.
Sasso & Bodolay, P.A.
Staack, Simms & Hernandez, P.A.
Tanney & Griffith, P.A.
Thompson & Foote, P.A.
Tinny, Meyer & Piccarreto, P.A.
Tragos & Sartes, P.L.
Law firms with two or more attorneys can
now be part of the CBA 100% Club. All it
takes is for every attorney in the firm to be a
member of CBA! 100% Club member firms
will be listed in every issue of Res Ipsa and on
CBA’s website at www.clearwaterbar.org.
Show your firm’s support and pride in the
Clearwater Bar by becoming a member of the
100% Club. It’s easy ! Just fax CBA a sheet
of your firm’s letterhead and a contact name
to 727-461-0063, and we will do the rest.
Questions? Call CBA at 461-4869. Find a
CBA application for your firm’s non-members
at www.clearwaterbar.org.
Just One Guardian ad Litem… Just One Teenager
A
by Lois Sears
ttorney Uta Grove, with the firm
Powell, Carney, Gross, Maller
& Ramsay, P.A., serves as a
volunteer Guardian ad Litem for Antoinette Napolitano, the 18 year old author
of “You and a Friend.” Uta has been
Antoinette’s volunteer Guardian ad Litem
with the State of Florida, Sixth Circuit’s
Guardian ad Litem Program since March
2006, assisting her teenager with the
important transition from childhood to
age 18 and beyond; a challenging time for
all teens, but especially for those who may
have spent a major portion of their lives in
state foster care (through no fault of their
own) and who may have little or no family
support to fall back on.
Uta was certified as a Guardian ad
Litem through the “Fostering Independence/Transitioning Youth Project”
which includes 8 hours of free CLE training in areas especially important to teens
in foster care (i.e., Independent Living,
Education, etc.). Uta highly recommends
this program to all attorneys who may be
interested in assisting foster teens with
navigating their legal rights and
Uta notes that the involvesubstantial opportunities that are
ment of a volunteer Guardian ad
available for them in Florida, but
Litem may go beyond advocatare often not taken advantage of
ing for the youth in a courtroom
by the teens because of their lack
setting. Indeed, it seems Uta’s real
of knowledge and inexperience
connection with her teen began
in dealing with the bureaucracy
to take shape after a certain level
of the child welfare system. “This
of mutual trust and respect was
Lois Sears
program has allowed me to really
established through other activimake a difference in the life and future of
ties, including math tutoring, discussions
my Guardian ad Litem teen, while at the
about the possibility of going to college,
same time giving me the chance to earn
etc. After getting to know her teen, one
pro-bono and CLE credit through the
thing became clear right away – AntoiFlorida Bar,” says Uta.
nette enjoys writing poetry. And she has a
Uta has also recently become involved
real talent! The national publication “Teen
in the Guardian ad Litem’s “Just One
Ink” has recently published some of AnCampaign,” a recruitment drive hightoinette’s work. For that both Antoinette,
lighting the need for more Guardian ad
and Uta, should be very proud.
Litem volunteers for other children who
Read about Antoinette’s experience
have been the victims of abuse, abanin her own words in the next issue of Res
donment and neglect. “If we had more
Ipsa Loquitur. For more information
Guardians at Litem, each child could
about volunteering with the Guardian
have that one person just focused on his
ad Litem Program’s “Fostering Indepenor her well-being,” reasons Uta. “That
dence/Transitioning Youth Project” please
seems to really make all the difference to
call Lois A. Sears at 727-582-7569.
a child.”
Charles N. Castagna Mediation, Inc.
Certified Mediators, Arbitrators and Dispute Resolution Professionals
is pleased to announce that
JOSEPH W. GAYNOR, ESQ.
has associated with our mediation group and is available to mediate and arbitrate
complex business, commercial, real estate, and financial matters throughout Florida
Edward P. Ahrens, Esq.
Thomas E. Baynes, Esq.
Michael Bilirakis, Esq.
James R. Case, Esq.
Charles N. Castagna, Esq.
Edward C. Castagna, Esq.
Joseph W. Gaynor, Esq.
now in our 18th year, providing full time dispute resolution services
Druhill Professional Center
611 Druid Road East, Suite 512
Clearwater, Florida 33756
Tel. 727-446-4221
Fax: 727-462-0196
www.castagnamediation.com
Ethics
I
by Joseph A. Corsmeier
Supreme Court of Florida Finds Intentional Misconduct from
Failure to Supervise Allegedly Dishonest Bookkeeper
n the recent case of The Florida Bar v. Riggs, 944 So. 2d 167 (Fla.
2006), the Florida Supreme Court upheld a 3 year suspension of
practice for a lawyer who turned over his fiduciary trust accounting and bookkeeping obligations to an employee and who then failed
to adequately supervise that employee. In the underlying matter, the
lawyer represented a client in a residential real estate transaction. In
November 2003, the attorney received funds from the mortgage company in the amount of $118,000.00, which were deposited into the
Joseph Corsmeier
lawyer’s real estate trust account. However, the appropriate funds were
not transferred to the financial institution as required.
After a foreclosure action was commenced in 2004, the lawyer advised Attorneys’
Title Insurance Fund (“ATIF”) that he did not have the funds due to what he alleged
was dishonesty on the part of his bookkeeper. ATIF then paid the debt and the attorney subsequently paid ATIF. The Florida Bar investigated and filed a disciplinary
Complaint alleging misconduct regarding the trust funds and the attorney did not
contest that he failed to supervise the bookkeeper. Among other rule violations, the
lawyer was found guilty by the referee of violating Bar Rule 4.8.4(c), prohibiting conduct involving dishonesty, fraud, deceit or misrepresentation, which requires a showing
of intent. The lawyer appealed and argued that, although he may have been negligent in
delegating and failing to supervise the employee, he did not have any dishonest intent.
The Supreme Court upheld the referee’s findings and held that the lawyer’s “failure to
supervise his employee constitutes intent because he knowingly assigned his trust account responsibilities (to the employee) and then failed to manage her activities.”
In an earlier case, The Florida Bar v. Lawless, 640 So. 2d 1098 (Fla.1994), the lawyer
was disciplined with a 90 day suspension, 3 years probation, payment of restitution, prohibition on supervising paralegals, and the removal of his name from lawyer referral lists for
failure to adequately supervise a paralegal who was not actually employed by him. When
taking on the representation, the lawyer promised the clients that he would supervise the
paralegal’s activities and also told them that his attorney’s fee could be paid through the
paralegal. It appears from the opinion that the paralegal kept money paid by the clients
toward the fee; however, the lawyer was required to pay restitution of $12,546.00 to the
clients, which included the fee that he did not receive, since “he was responsible for the
conduct of his non lawyer employee and thus must reimburse the (clients).”
The Riggs case reminds us that all lawyers risk disciplinary sanctions for failing to
supervise non-lawyer employees and others under their supervision. Disciplinary sanctions can be imposed for even de minimus trust account errors and violations which
have been committed. A lawyer who delegates his or her important trust accounting



STEVEN G. NILSSON
Ameri-Life Towers
Office 727 725-9488






fiduciary obligations and agrees to hold
client’s and other people’s funds or property but who fails to properly supervise a
dishonest employee to whom he delegated
that responsibility may be found to have
dishonest intent. This exposes the lawyer
to potentially serious disciplinary consequences. In addition, the Lawless case
reminds us that all lawyers must recognize that they are responsible for the
supervision of non-lawyers who are acting
under their supervision, whether they are
employees or “independent” paralegals, or
risk the disciplinary consequences.
Joseph A. Corsmeier is a Martindale-Hubbell
“AV” rated attorney with the law firm of
Albinson and Corsmeier P.A. in Clearwater. His practice consists primarily of the
representation and defense of attorneys and
professionals in disciplinary and admission
matters. He is available to answer attorney
ethics and professionalism inquiries, assist
attorneys to insure compliance with the Rules
Regulating The Florida Bar, and in defense
of attorneys in Bar disciplinary matters. The
firm provides consultation services to attorneys regarding review and implementation
of procedures to minimize the opportunity for
employees to engage in misconduct.
Clearwater Bar’s Student Interns Need You
W
hat if I told you that you have
the opportunity to hire an
intelligent, motivated and
enthusiastic individual and at the same
time help provide guidance and insight to
a high school student? Well, you will have
the opportunity again this summer. The
CBA launched the Student Legal Intern
Program (“SLIP”) last summer and it was
a resounding success.
The SLIP program is designed to
achieve these three goals:
• to provide a valuable work experience;
• to further the student’s understanding of the law; and
• to provide a mentor relationship for the students.
by Charles A. Samarkos
studies when they see the outcome
and generally impressed all who
of hard work and an education.
encountered her during the sumThese students are screened and
mer. It was not only a positive
interviewed before being placed
experience for her, but also for our
with a law firm. They are not
firm. I am personally asking that
juvenile delinquents or trouble
all firms accept the challenge of
makers. They have been identified
participating in this program next
as being good students who can
summer. Last summer, the proCharles Samarkos
use assistance through employgram had to turn away students
ment to help them at this stage of their
because there were more students than
high school career.
opportunities. This summer, we hope to
Our student last summer took the
place every student with a firm.
work seriously, did an outstanding job,
We also need generous individuals
who may not feel they are in a position
to supervise an intern but who like the
program and want to help. Tax deductible donations can be made to Clearwater
Bar Foundation in support of SLIP. These
funds will be used to pay interns who are
working in public offices, such as for a
judge. If you have any questions, please
feel free to contact Karen France at 4614869, Susan Demers at 791-2501 or me at
461-1818.
The CBA’s SLIP interns are
paid $1,700 for the six week program (roughly $7/hour). Interns
will perform numerous duties for
their employers determined by the
mentor/employer and therefore
may vary from office to office.Prior
to beginning their internships, the
Bryanna Dunne, center, was a summer intern at
Johnson Pope Bokor Ruppel & Burns LLP, and is
interns are put through intensive,
seen here with her mentors Charles Samarkos and
mandatory orientations. These oriJoan Vecchioli.
entations prepare the students for
what is expected of them and what
they can expect. The orientations focus on
nd
issues such as confidentiality, professionalism, punctuality, attention to detail, and
appearance. I can tell you from personal
tetson University College of Law
experience that you will get a great deal
will host the 32nd Annual Alexanout of participating in this program. Last
der L. Paskay Seminar on Banksummer, our firm had the pleasure of
ruptcy Law and Practice Dec. 7–8 at the
working with a high school student who
Sheraton Sand Key Resort, Clearwater.
performed many tasks including preparThe seminar, designed for experts in
ing affidavits from witness interviews,
the field as well as general practitioners
reviewing and organizing documents
who handle bankruptcy issues, has atproduced in discovery and performing
tracted a national faculty, including top
routine office work on an as needed basis.
bankruptcy lawyers, judges and officials.
This was not just a “babysitting” program
Seminar speakers include Lou Phillips
and our student was able to perform tasks
of Gordon, Arata, McCollam, Duplantis
that assisted our attorneys and the overall
and Eagan LLP; U.S. Bankruptcy Judge
office.
J. Vincent Aug Jr.; U.S. Bankruptcy Judge
A main goal of the program is to allow
Margaret Mahoney; Roberta DeAngelis
the students to be productive while at the
of the Executive Office for U.S. Trustees;
same time exposing them to the various
Dennis J. Connolly of Alston and Bird
aspects of the legal field. One hope is that
LLP; Frank J. Santoro of Marcus, Santhrough their exposure they may decide
toro and Kozak P.C.; and Rob Charles of
to pursue a career in law. Another hope is
Lewis and Roca.
they will want to continue to excel in their
Charles A. Samarkos is a shareholder with the
firm of Johnson Pope Bokor Ruppel & Burns
LLP in Clearwater. His areas of practice include civil, commercial and probate litigation.
Stetson Hosts 32 Annual Bankruptcy
Law and Practice Seminar
S
Topics include ethics and recent
developments; dischargeability, sovereign
immunity and litigation issues; Chapter
11 cases and small business cases; exceptions and extensions to the automatic stay;
domestic support obligations; litigation
issues; adequate protection payments;
trustee’s voiding powers and case administration.
The conference is named for its chair,
Alexander L. Paskay, chief bankruptcy
judge emeritus of the Middle District
of Florida. Judge Paskay is an adjunct professor of law at Stetson.
To register, call the Office of Conferences and Events at 813-228-0226,
e-mail [email protected] or
visit www.law.stetson.edu/conferences
for more information.
Young Lawyers
T
by Christina Green Rankin, President
For the Community: Legal Eagles and Holidays in January
he Young Lawyers Division hosted the Legal Eagles Homework
Help Kickoff Celebration and Backpack Giveaway on August
20, 2007, from 3–5 pm, at the Greenwood Library. With the
support of Legal Eagles Program Chair, Lindsey Diehl, and many of
our distinguished YLD members, we were able to distribute backpacks
to 180 under-privileged children in the community, a twenty-percent
increase over last year’s numbers. Many of the children who attended the
Kickoff have returned for Homework Help sessions that are being held
at the Greenwood Library every Tuesday from 3–5 pm. A special thanks
to Deborah A’Hearn, Marcelana Anthony, Gayann Barbella, Stephanie
Bolton, Jason Brazelton, Michael Broadus, Jennifer Burns, Joshua Chilson, Michael Faehner, Andrea Layman, Stephanie Libbey, Cyrus Malhotra, Steven Sock, and Lauralee Westine who have already committed
their time or treasure to Homework Help sessions this year. We continue
to seek volunteers from the Clearwater Bar membership to help make this
Clearwater Bar Young Lawyers are surrounded by enough
program a continuing success. Interested persons may view the schedule
backpacks filled with school supplies to present to 180 children
and email the Clearwater Bar to volunteer for one or more tutoring sesat their annual Legal Eagles Homework Help Kick Off at
sions by visiting http://clwbar.org/LegalEagles.html.
the North Greenwood Library in Clearwater. Pictured in the
The YLD is also pleased to announce the date for our annual Holidays
front from the left are Kim Sharpe, Christina Green Rankin,
in January celebration, scheduled for Saturday, January 19, 2008, from
and Leslie Diehl. In the back from the left are Patrick Lamb,
12:30 pm to 3:30 pm. We have the opportunity to give back to the comRyan Griffin, Zack Zuroweste, and Josh Chilson. YLD
munity by helping children who may otherwise receive little for the Holi- volunteers also meet at the library with students weekly to
days. The Clearwater Marine Aquarium graciously donates their facility
assist with homework.
to host the event, where the YLD treats kids to a tour, pizza and a toy of
teers for the day of the event. If you are
their choosing. I would like to thank all of our volunteers and donors from previous
available to donate your time, please conyears, and respectfully request your support again this year. We need donations from
tact me at [email protected]
the Clearwater Bar membership to purchase gifts for the children and we need volunor the Holidays in January Program co-chairs, Stephanie Bolton at
Clearwater and St. Petersburg Young
[email protected] or Stephen
Lawyers Divisions co-sponsored a swearing
in ceremony for more than 40 new lawyers
Hitchcock at [email protected].
at the Criminal Justice Center on September
Additionally, for any contributions,
27. Seen here are (left to right) CBA YLD
please forward your check payable to the
President Christina Green Rankin, St. Pete
Clearwater Bar Foundation (and noted
Bar Executive Committee member James
“Holidays in January”), to 314 S. Missouri
Thaler, Clearwater Bar Past President and
Avenue, Suite 107, Clearwater, FL 33756.
current president-elect of The Florida Bar
The Clearwater Bar YLD also invites
Young Lawyers Division Jewel White Cole,
all
Clearwater
Bar members who are
and Florida Bar Board of Governors Rep for
th
within
their
first
five years of practice
the 6 Circuit Murray Silverstein.
or under the age of 36 to join us at our
monthly meetings. The meetings scheduled for the rest of 2007 are as follows:
• November 15, 2007: Courtside Grill,
Feather Sound
• December 13, 2007: Casa Ludovico,
Palm Harbor
For any questions with regard to the
YLD or its programs, please contact me
by phone at 727-441-8813 or by email at
[email protected].
The author and president of Clearwater Bar’s
YLD practices in Clearwater with the Law
Offices of Richard D. Green.
Community Outreach
Adults Mentoring Children Program needs you!
A
dults Mentoring Children, a Children’s Services program of Gulf Coast Community Care, is in need of additional volunteers to serve as mentors to children
throughout Pinellas County. Mentors for the program serve children on a
one-to-one basis as positive adult role models who will enrich their lives by providing a
nurturing relationship on an ongoing basis. Many of the children are in single-parent
homes or foster care. Some are in kinship care homes. All are in need of individual
attention. A few hours a month has been proven to make a big difference in their lives
and in the lives of their mentors as well.
Case management, support and training is provided, as well as social activities throughout the year. Funding is
through the Juvenile Welfare Board
of Pinellas County.
As a professional in the legal
field, we know you are aware
of the need for community
involvement in helping these
children. If you would like
more information, or to apply
to make a big difference in
the life of a child, please call:
Adults Mentoring Children at
(727) 479-1841.
Tax Tips and More…
Malpractice Claim Upheld
In Gunster, Yoakley & Stewart, P.A. v. McAdam, ____
So2d ____, WL2376658 (Fla. 4th DCA Aug 22, 2007)
a unanimous panel upheld a $1 million legal malpractice judgment. The thrust of the case was that the law
firm “wrongfully procured J.P. Morgan’s appointment as
corporate fiduciary and caused the estate administration
to be more expensive.” The disloyalty issue was key. The
case presented to the jury was that the attorney secretly
favored J.P. Morgan.
by Linda S. Griffin
Advice: Anytime you have a trust that has an
inclusion ratio of between 0 and 1 carefully
review these regulations to see if a qualified
severance would work.
Trust and Estate Expenses
Honey Bear and Linda S. Griffin
Advice: All attorneys should carefully review this case. Particularly important was language
in the case that the “trial court did not err in submitting to the jury the question of whether
Gunster Yoakley had a duty to fund a revocable trust during decedent’s lifetime as there was
sufficient evidence that Gunster Yoakley implicitly agreed to do so.” All attorneys should clearly
identify and document whether the attorney or the client is actually funding the revocable
trust. If you do not make that determination clear have you “implicitly” agreed to do so?
What Happens When Funding Goes Bad?
In Vaught v. Boerckel, ____ So2d ____, 2007 WL2428516 (Fla. 4th DCA Aug 29,
2007) the decedent executed a pour over will which transferred all of his assets into
his trust. The trust stated that certain real property held in a corporation should be
distributed to certain family members other than his wife and the balance would be
distributed to his wife. The decedent never transferred the real property by deed from
his corporation into the name of his trust. The children argued that the 100% of the
stock of the company holding title to the real property became an asset of the trust
and the trustee (the spouse) was obligated to convey the real property to the named
beneficiaries. However the spouse argued that under the residuary clause the stock was
transferred to the wife. The named beneficiaries of the real property brought suit.
The court determined that the real property never became a part of the trust corpus
because the decedent did not execute deeds to transfer the real property into the trust
causing such provisions to lapse.
Advice: As if the Gunster, Yoakley case above was not enough, this case reminds every estate
planner to clearly document who is funding the trust. If your client advises you that he or she
does not want to pay you to fund the trust be certain that you have that in writing.
Long Term Leases to Preserve Save Our Home (“SOH”) Cap in QPRT
As you know the SOH cap comes off when a transfer of the homestead is made,
except under certain limited situations such as a transfer to a spouse. Thus, the SOH
cap will come off when the home is transferred from a qualified personal residence
trust (“QPRT”) to children. Section 196.041(1) of the Florida Statutes provides that a
leasehold interest for 98 years or more is a bona fide lease and the individual lessee is
deemed to have legal or equitable interest. Further in AGO 2007-33 the question asked
the Sarasota property appraiser was whether an improvement on land leased for an
initial 99 year term qualified for the ad valorem homestead tax exemption. The property
appraiser answered yes.
Advice: If you are drafting QPRTs it is imperative that you discuss with the client
what happens after the QPRT term ends. Many grantors are extremely upset at paying
increased real estate taxes and having to pay rent to children!
Proposed Generation Skipping Transfer Tax (“GSTT”) Regulations
The Service has issued final regulations on the qualified severance of a trust for GSTT
purposes under Section 2642(a)(3) of the Code. The regulations are effective prospectively from the date of severance and provide practitioners with guidance regarding
a trust with an inclusion ratio between 0 and 1 and funding rules. A taxpayer needs
to clearly indicate “Qualified Severance” at top of form 706(GS)T but no red ink is
required.
The Service has issued proposed
regulations under Section 67(a) of the
Code. Under current law miscellaneous
itemized deductions are only allowed to
extent they exceed 2% of adjusted gross
income (AGI). Currently costs paid in
connection with administration of trust
and estate that would not have otherwise
been incurred are not limited to the 2%
restriction and are allowed a full deduction to arrive at AGI. In Re: O’Neill,
William Jr. v. Com. (1993, CA6), 71
AFTR2d 93-2052. The Service rejected
that approach (nonacq.1994-2 CB 1). The
Supreme Court has agreed to review a
conflict between the Second Circuit and
Sixth Circuit.
The proposed regulations state that
costs incurred by estate and trust that
are “unique” are not subject to 2% floor.
Uniqueness to an estate or trust means
that individual could not have incurred
those fees in connection with property
not in estate and trust. The regulation
further states that examples of fees unique
to a trust or estate and thus not subject
to the 2% floor are expenses of fiduciary
accountings, judicial filings, fiduciary
income and estate tax returns and division
of income and principal to beneficiary
and others. Examples of fees not unique
and subject to the 2% floor are custody
and management fees, advice on investing
for total return and expenses to prepare
gift tax returns. Thus, this regulation
will require the “unbundling of fees” for
corporate trustees between custody and
management fees which are subject to
the 2% floor and other fees which are not
subject to the 2% floor.
Advice: It appears that the Service’s proposed
regulations may have been fast tracked to be
promulgated before the Supreme Court makes
its decision. Some practitioners question
whether these regulations are beyond the Service’s authority under the Code. Nevertheless
until this issue is decided all clients must be
advised of the current law.
see Tax Tips and More page 10
Tax Tips and More continued from page 9
529 Plans
The Pension Protection Act of 2006 (the
“PPA”) provides that the sunset provisions
of EGTRRA do not apply to 529 Plans,
(i.e. the 529 Plan provisions do not expire
on December 31, 2007). PPA added Section 529(f) of the Code to prevent abuses,
such as the contributions of substantial
amounts to 529 Plans with different beneficiaries and then changing to a single
beneficiary. If amounts are withdrawn
and not used for a qualified higher education, then the amount will be subject to
an income tax and 10% penalty.
Logos
Websites
Stationery
Newsletters
Advice: 529 Plans are excellent vehicles to
plan for education and to reduce estate taxes.
Be sure to suggest to your clients.
On The Horizon
Some items that have been approved
by The Florida Bar RPPTL Executive
Council, are currently being considered in
the Committees of the RPPTL Section,
or have been passed by legislation:
1)Deferred compensation added as
an exempt asset (approved by Executive
Council);
2)Qualified orders similar to qualified domestic relations order (“QDROs”)
applicable to firefighter plans, municipal
plans and state retirement plans (approved
by Executive Council);
3 )Automatic revocation of beneficiary
designations of spouse upon divorce for
life insurance, IRAs and annuities (considered in Committee);
Quill & Mouse
Studios, Inc.
5)Notice to Creditors to Agency for
Health Care Administration must be accompanied by death certificate (approved
by the Florida Supreme Court and effective July 12, 2007);
6)Emergency temporary guardian (approved by the Florida Supreme Court and
effective July 12, 2007);
7)Definition of insolvency for disclaimers (approved by Executive Council);
8)Mediation statute in estates and
guardianships (considered in Probate
Rules Committee);
9)Clarification of service on minors
(approved by the Florida Supreme Court
and effective January 1, 2008);
10)General and special magistrates
and effective January 1, 2008); and
11)Procedure for objections to personal representative’s proof of claim clarified
and effective January 1, 2008).
Linda Suzzanne Griffin is a J.D., LL.M.
and C.P.A. and practices in Clearwater. Linda can be reached at linda@
lawyergriffin.com.
Serious leverage
at depositions
Fully le
tib
compa h
®
wit
ft
ro
Mic so!
Vista
The graphic design
firm for the
Clearwater Bar
Association.
LiveNote® gives your
side a distinct advantage
before, during and after
depositions.
This powerful software connects your laptop
directly to the court reporter’s machine and
the videographer’s camera. You can edit,
sort and organize the testimony as it’s
given, plus you can send a live, realtime feed
of the deposition to remote attorneys.
QuillAndMouse.com
For more information, call 1-800-762-5272
or visit livenote.com.
CompleteWebShop.com
727.442.8487
4)Revisions of uniform principal and
income act regarding the 90/10 split of
income from IRAs (considered in Committee);
© 2007 West, a Thomson business L-332449/8-07
Avocat de Famille
W
by Scott E. Schiltz
Parental Relocation With a Child
e live in a highly mobile society. People change jobs on a
much more regular basis than they did a generation ago.
This relocation issue has become more prevalent in my
practice within the last six months or so. Effective October 1, 2006,
Florida Statute 61.13001 changed the law in Florida and provided for
a specific detailed procedure regarding relocation of minor children.
Currently where a residential parent seeks to move more than 50
miles from the established primary residence of the minor child, the
Scott E. Schiltz
residential parent must meet the requirements of the new statute. The
statute provides two ways for the children to be relocated. First, the parties may enter
into an agreement. That agreement must be in writing and specify the visitation schedule and include transportation arrangements for visitation. This agreement is then sent
to the court for ratification. The second and more common method, at least for family
law attorneys, is where the parties are not in agreement or it is uncertain as to whether
the non-residential parent will agree to the move. The relocating parent must provide
a “Notice of Intent to Relocate,” which must contain the following information and be
signed under oath:
1. A description of the location of the intended new residence, including the state,
city, and specific physical address, if known.
2. The mailing address of the intended new residence if not the same as the physical
address, if known.
3. Telephone number of the intended new residence, if known.
4. The date of the intended move for proposed relocation.
5. A detailed statement of the specific reasons for the proposed relocation of the
child. If one of the reasons is based upon a job offer which has been reduced to writing,
that written job offer must be attached to the Notice of Intent to Relocate.
6. A proposal for the revised post relocation schedule of visitation together with
a proposal for the post relocation transportation arrangement necessary to effectuate
visitation with the child. Absent the existence of a current, valid order abating, terminating or restricting visitation or other good cause predating the Notice of Intent to
Relocate, failure to comply with this provision renders the Notice of Intent to Relocate
legally insufficient.
7. The inclusion of the following statement, all in capital letters, and in the same
size type or larger type as the remainder of the Notice.
An objection to the proposed relocation must be made in writing, filed with the
court, served on the parent or other person seeking to relocate within thirty (30) days
after service of this notice of intent to relocate. If you fail to timely object to the relocation, the relocation will be allowed, unless it is not in the best interest of the child,
without further notice and without a hearing.
8. The mailing address of the parent or other person seeking to relocate to which
the objection to the Notice of Intent to Relocate should be sent.
Additionally, the parent seeking to relocate must also prepare a “Certificate of
Filing Notice of Intent to Relocate” that certifies the date that the Notice of Intent to
Relocate was served on the other parent. If no objection is filed within 30 days, “It is
presumed that the relocation was in the best interest of the child” and the relocation
will be allowed.
If an objection is filed, the burden is on the parent seeking to relocate to begin court
proceedings to obtain court permission before relocating.
If the non-residential parent objects, the verified objection must include the specific
factual basis supporting the reason for seeking a prohibition of the relocation, including a
statement of the amount of participation or
involvement the objecting party currently
has or has had in the life of the child.
There is no presumption in favor of or
against a request to relocate, however, in
reaching its decision the court evaluates
the following factors:
1. The relationship between the child
and the relocating parent as well as siblings, half siblings and other important
persons in the child’s life.
2. The child’s age or developmental
stage and the impact relocation will have
on the child’s development.
3. The feasibility of preserving the
relationship between the non-relocating
parent and child.
4. The child’s preference if appropriate
as to age and maturity of the child.
5. Whether relocation will enhance
the relocating parent and child’s quality
of life.
6. The reason that each person seeks
or opposes relocation.
7. The current employment and economic situation of each parent.
8. Whether relocation is filed in good
faith.
9. Whether the objecting parent has
fulfilled his/her financial obligation to the
relocating parent or child.
10. The career and other opportunities available to the objecting parent if the
relocation takes place.
11. Any history of substance abuse or
domestic violence.
Because the Statute is so newly
enacted, any appellate cases concerning
61.13001 are only marginally relevant and
provide little assistance in ascertaining the
meaning of the requirements of this new
law. Primarily the cases deal with the lack
of facts supporting 61.13001, not interpretation. Stay tuned, this area promises
much litigation in the future.
The author practices family law in Dunedin
with Boyer and Schiltz, P.A., and is a past
president of the Clearwater Bar Association
and past chair of its Family Law Section.
The Lawyer-to-Lawyer Advertising
Exemption: Dead or Alive?
F
lorida’s advertising rules for lawyers
are found in the Rules Regulating
The Florida Bar, Chapter 4, entitled, “Information About Legal Services”.
The general advertising rule (rule 4-7.1)
previously contained a comment that was
interpreted for over 16 years to exempt
lawyer-to-lawyer communications from
the general advertising requirements. The
language in the Comment stated, very
simply, “[t]hese rules do not apply to communications between lawyers, including
brochures used for recruitment purposes.”
As part of the Bar’s 2006 annual rules
packet submission of a variety of proposed
amendments to Chapter 4 of the Rules
Regulating The Florida Bar—including
recommendations of The Florida Bar’s
2004 Advertising Task Force that also
addressed web site advertising—the Bar
proposed specific rule amendments to
exempt certain attorney communications,
including lawyer-to-lawyer and with former clients. Instead of continuing to rely
on the language in the Comment, the Bar
sought to elevate to rule status the specific
amendment to Rule 4-7.1 to exempt communications sent only to lawyers.
In its order, the Supreme Court
amended the advertising rules, effective
January 1, 2007, but declined to adopt the
exemption for lawyer-to-lawyer communications. In refusing to adopt the exemp-
by Murray Silverstein
tion, the Court stated: “We request
Thereafter, the attorney appealed
further information from the Bar
to the Bar’s Standing Committee
as to why communications between
on Advertising, which reversed
lawyers, and communications with
the Bar staff’s former finding of a
current and former clients, should
violation.
be exempted from the advertising
The Standing Committee’s
rules, including any research or eviMarch 20, 2007 reversal was
dence supporting such exemptions.
based upon the argument that the
Murray Silverstein
We defer adoption of those two
advertising rules were designed to
exemptions at this time.” In re Amendprotect members of the public, rather than
ments to the Rules Regulating The Florida other members of the Bar who do not need
Bar-Advertising, __ So. 2d ___, 2006
the same level of protection. The Standing
WL 3093126 (Fla.), 31 Fla. L. Weekly
Committee specifically determined that
S767 (Fla. Nov. 2, 2006). The Court
the attorney’s promise to follow-up with
included, in an appendix to the opinion,
the other attorney a few weeks later was
the content of the rule and Comment with
not a prohibited direct solicitation in violaadopted language underlined, as well as the tion of rule 4-7.4 (a) because the letter was
Court’s sua sponte striking of the language being sent to other lawyers.
in the Comment that had previously served
The matter next came up for review
as the basis for the exemption.
before the Board of Governor’s Board
Following the Court’s November 2,
Review Committee on Professional Ethics
2006 opinion, the Bar’s staff ethics counsel (BRC) at the suggestion of the Board’s
was presented with an attorney’s inquiry
liaison that the Standing Committee’s
as to whether their firm could send an
reversal was contrary to the strict reading
introductory letter to other attorneys about of the November 2006 Supreme Court
their availability to assist with Florida real opinion. The BRC voted 6-0 to reverse
estate transactions. (Another inquiry dealt the Standing Committee and reinstate Bar
with a firm’s introductory letter to other
staff’s initial determination that a violation
attorneys advising that it was available to
occurred since the “exemption” previously
assist with disability insurance claims.)
found in the Comment to rule 4-7.1 had
The Bar responded that the proposed letter been eliminated by the Supreme Court.
was violative of rule 4-7.4 as a form of diIn a dramatic departure, the full
rect solicitation with a prospective client.
see Lawyer-to-Lawyer page 15
M EDIATION & A RBITRATION S ERVICES
J OHN M. E LIAS
Insurance Defense • Personal Injury • Wrongful Death
Auto Negligence • Professional Negligence • Municipal Law
• Board Certified Civil Trial Lawyer
• AV Rated/Martindale Hubbell
• Certified Circuit Civil Court Mediator
• Over 30 yrs. Civil Trial Practice
• Certified Federal Court Mediator
• Over 25 yrs. Municipal Attorney
611 Druid Road East, Suite 512 • Clearwater, FL 33756
(727) 461-0220 • Fax (727) 461-2433
The Rules Rule
by Connie R. Stephens
I
t is time to be falling for the rules. The rule maker has recently
appointed new general magistrates/Child Support Enforcement
Hearing Officers for the Sixth Judicial Circuit: Loula D. Giannet
and LaShawn Strachan, see Adm. Order No. 2007-067 PA/PI-CIR;
Mark J. Aubin, Timothy M. Beasley, Carmen De Zengotita Follis, Lorena L. Kiely, Judith Redfern Koch, Jennifer S. Paullin and
Frederick L. Pollack, see Adm. Order No. 2007-071 PA/PI-CIR. The
Justice Administrative Commission has also provided new contracts
Connie R. Stephens
to court appointed attorneys. Due Process survives. Adm. Order No.
2007-068 PA/PI-CIR. See also, Adm. Order No. 2007-085 PA/PI-CIR re: Court
Appointed Attorney Registry.
The violation of one’s probation has made press and caused fodder for various social
and political causes. So has the issue of jail overcrowding. Thus, we have Administrative Order No. 2007-073-PA/PI-CIR: Violations of Felony Probations or Community
Control. The Legislature has authorized judges to issue a Notice to Appear instead of
issuing a warrant for the arrest of the probationer. Judges are now also authorized to
direct the Department of Corrections to use a technical violation letter in lieu of a
violation report, affidavit or warrant, if applicable. This order lists the type of violations that provokes the issuance of a technical notification letter. There are forms
attached to this order concerning the Notice to Appear. See also the Amended Violations of Felony Probation Or Community Control, Adm. Order No. 2007-081 PA/
PI-CIR (with forms).
Judicial assignments are just around the bend. There is a Judicial Management
Committee, an advisory committee that will have periodic meetings with the Chief
Judge in lieu of monthly meetings of the Administrative Judges. Administrative judges
will continue to hold their periodic meetings with the Judges in their divisions. As of
January 1, 2008, the administrative judges are as follows: Chief Judge – Judge Robert
Morris, Jr.; Appellate Division – Judge R. Timothy Peters; Family Law and Uniform
Family Court – Judge Peter Ramsberger; Pinellas Civil Division – Judge W. Douglas
Baird; Pinellas County Court – Judge Henry J. Andringa; Pinellas Criminal Division – Judge Nancy Moate-Ley; Probate and Guardianship Division – Judge Lauren
C. Laughlin; Pasco Administrative Judge – Judge W. Lowell Bray, Jr.; Pasco County
Court – Judge William G. Sestak; and Senior Judge – Judge Robert Beach. See Adm.
Order No. 2007-077 PI-CIR. County judges can be assigned to act as circuit judges;
When the IRS calls, you need the power of W.H. Simon & Co. P.A.,
CPAs, the firm managed by a former IRS executive. We know the
inside workings of the IRS and how to aggressively represent your
client – and we’ve been doing it successfully for more than fifteen
years. More than 80% of our practice is a result of referrals from
attorneys and CPAs.
• Litigation Support
(Civil & Criminal)
• Pre-bankruptcy Analysis
• Delinquent Returns
• Audits
W.H. SIMON, CPA
& FORMER IRS EXECUTIVE
• Liens/Levies
• Installment Agreements “Your Problem With The IRS
• Offer in Compromise
is OUR Business”
Call W.H. Simon & Company, P.A.
at 727-791-7879
circuit judges can be assigned to act as
county judges. Adm. Order No. 2007-078
PA/PI-CIR.
The Chief Judge has the authority to
develop a court reporting plan, in order
to develop and implement a circuit wide
plan for court reporting of all venues that
require reporting at the public expense.
Adm. Order No. 2007-079 PA/PI-CIR
deals with the fundaments of Court
Reporting Plan, Definitions and Transcription of the Record. This order details
Court reporting procedures by court
division. This order deals with transcription procedures for general magistrates
and hearing officers; hearings commencing outside regular court hours; proceedings that do not require a record; court
reporting procedures for capital cases and
procedures related to electronic recording.
There are certain procedures to follow in
ordering transcripts. Court reporting fees
are detailed at Adm. Order No. 2007-080
PA/PI-CIR.
The Law Library at the Criminal
Justice Center (CJC) has closed due to
budget cuts. Court appointed attorneys
who utilized computers at the CJC law library to access CJIS can now access those
records by utilizing terminals located
to the right of the Clerk’s main service
counter on the 2nd floor. Room 1521 will
be available for court appointed attorneys
and other defense attorneys’ use as a conference room. Room 4550 on the 4th floor
will be set up for internet access with a
printer available for use during trials. See
Memorandum 9/20/07.
The Clerk of the Circuit Court shall
have the authority to recalculate any
installment payments ordered, concerning
child support or alimony depositories in
order to align the depositories’ computer
system to the pay periods of an employer
or other income source of an obligor. See
Adm. Order No. 2007-084 PA/PI-CIR.
Well, this reporter of fall’s new rules is
ruling out.
Connie R. Stephens is editor of Res Ipsa
Loquitur and past chair of CBA’s Family Law Committee, Bench Bar Conference
Committee and Oyster Roast. She practices
family law in Clearwater.
Theme Basket Challenge Auction!
To be held during the Clearwater Bar Holiday Party
Hosted by Clearwater Bar Foundation
Monday, December 3, 6:00-8:00 p.m.
Radisson Central, 20967 US Hwy 19N (between Drew & Gulf-to-Bay)
Be a part of the Theme Basket Challenge Auction! Donate a theme basket to be auctioned off at the
Clearwater Bar Holiday Party. Challenge other firms! Be creative in your theme! The firm whose basket
brings the highest bid will receive the Merry Everything Award to be cherished and displayed until next
year’s event. Bring your checkbooks to the event. Come with charity on your mind and place your bids!
Sponsors receive recognition on signage at event, in Clearwater Bar publications, faxes and emails,
and at www.clearwaterbar.org.
Drop off your theme basket at the Clearwater Bar Association office, 314 S. Missouri Ave., Suite 107,
no later than noon on Monday, December 3.
Thank You Sponsors
Add Your Name to the Sponsor List
$500—Winter Wonderland Sponsors
Huenke Karoll Quinn Group of Wachovia Securities
Johnson, Pope, Bokor, Ruppel & Burns, LLP
Tanney & Griffith, P.A.
$300—Sleigh Ride Sponsors
Albinson & Corsmeier, P.A.
Baxter, Strohauer, Mannion & Silbermann, P.A.
PDR Certified Public Accountants
Sabal Trust Company
Thompson & Foote, P.A.
$100—Snowflake Sponsors
Ken Burke, Clerk of Court, personally
Cole Law Firm, P.A.
Susan S. Demers, Esq.
David Robert Ellis, P.A.
Connie R. Stephens, P.A.
Sponsor list accurate as of October 17.
Clearwater Bar Foundation is a 501(3) charitable organization and as such donations are deductible as per
IRS regulations. Please consult your tax advisor.
u
o
y
e
r
We the
at on ?
lunche
[Right] Left to right:
Jean Kwall, Lou Kwall and
Elizabeth Mannion enjoyed
the camaraderie at the October
membership luncheon.
[Above] Left to right: Stacy Strohauer
Son and Gale Silbermann, both of Baxter,
Strohauer, Mannion & Silbermann, P.A.,
attended the October membership luncheon.
[Right] Left to right: Kim Campbell
and Jewel White Cole at the
October membership luncheon.
Lawyer-to-Lawyer continued from page 12
Board of Governors, after considerable
debate at its meeting on August 17, 2007,
came up with a creative solution that
was based upon a careful consideration
of protecting the interests of the public,
Florida’s lawyers, and absolute respect for
the Supreme Court’s opinion. The Board
voted to suspend enforcement of general
advertising rule 4-7.1 as regards lawyerto-lawyer communications. The Court’s
opinion did not actually and unconditionally reject the heretofore exemption;
rather, in its own words, it simply indicated that it would “defer adoption of those
two exemptions at this time.” During the
period of the deferment, therefore, the
Bar will comply with the Court’s request
for research or evidence supporting the
exemption, but that the status quo of not
treating lawyer-to-lawyer communications as violative of rule 4-7.1’s advertising
requirements should remain in effect. At
present, lawyer marketing communications to other lawyers are considered
advertising, but the Bar, as instructed by
its Board of Governors, will not enforce
alleged violations until such time as the
Court can readdress this issue of great importance to the 80,000 lawyers comprising The Florida Bar. Murray B. Silverstein, is the Sixth Circuit
Representative, to The Florida Bar Board of
Governors, seat 2.
Thank You Sir; May I Have Another?
by Jeff Albinson and Joe Corsmeier
Defending a DBPR Case
Requires Great Care
The Florida Department of Business and
Professional Regulation (DBPR) regulates most professions. It can be a frightening experience defending a complaint in
the DBPR arena. From the lexicon to the
rules of procedure to the interaction of the
Statutes and the Administrative Code,
uninitiated lawyers and law firms can find
themselves struggling to play catch up.
The following two cases illustrate
some problems that can occur in defending
before the DBPR. This article is not meant
to be an exhaustive study; it is merely a
primer designed to introduce potential
problems and offer some basic advice.
Unintended Consequences
In Romano v. DBPR, -- So.2d --, WL
485975 (FL 5DCA Feb. 16, 2007) a
licensed real estate agent entered a plea of
“no contest” to a set of criminal charges
before defending in a DBPR case. The
criminal charges stemmed from the agent
having helped a friend with bad credit get
a car and were unrelated to her license.
Apparently the friend was behind on payments on the car and decided that it would
be a good idea to burn the car. Afterward,
the friend told the agent and the car was
falsely reported as stolen. Later, when the
truth came out, the agent was charged with
some crimes for his part in the false reports
and he owned up to the mistake in criminal court. However, he failed to report the
matter to the DBPR within 30 days. The
agent then faced the impact of Florida
Statute 475.25 (1)(p) – which statute
provides that a licensed agent must make a
written report to the Commission within
30 days of any conviction of a felony of
plea of no contest to a felony. Thus, while
the agent might have been able to raise
certain defenses related to the matter, there
was no defense to the failure to report the
entry of the plea and the agent faced harsh
discipline. So, like Mr. Capone and his tax
returns, the agent was left defenseless on
a “technical” point even though there was
a real defense to the meat of the case. Of
course, the criminal defense lawyer should
have given the client the advice to report
the matter to the DBPR.
In all criminal matters, defense
counsel should work with DBPR defense
counsel to avoid problems if the criminal
defendant holds any professional license.
It Is Like Quicksand Out There
In Keen v. DBPR, 920 So.2d 805 (FL
5DCA 2006) a real estate appraiser
(though this could have happened to
anyone) was charged with four counts
of violating certain regulatory rules. The
appraiser was given the choice to request
a Formal Hearing (when facts are in
dispute) or an Informal Hearing (when
the licensee is not contesting facts.) He
elected to contest counts 1 and 4 but
indicated that he was not contesting the
facts on counts 2 and 3. The Florida Real
Estate Appraisal Board (FREAB) agreed
to drop counts 1 and 4. The appraiser
and FREAB filed a joint motion to drop
counts 1 and 4 and have an informal
hearing on counts 2 and 3. That Hearing
was set and Notice issued indicating that,
if the joint motion was granted, FREAB
would have an informal hearing on counts
2 and 3. Neither Mr. Keen nor his lawyer
attended the Hearing on the joint motion
to drop the counts. The motion was granted and the informal hearing was then held
immediately after the hearing on the joint
motion. Since the defendant was not represented and no evidence was put on for
the defendant, the license was suspended
for a full year. The appraiser appealed,
claiming he did not get adequate notice of
the hearing. The court rejected the appeal
and found that the statute required a 15
day notice only if the facts were contested
but since Mr. Keen had not contested the
facts in counts 2 and 3 and since counts
1 and 4 were, by the time of the informal hearing, already dismissed, the only
notice required was “reasonable” notice.
Thus, the license remained suspended for
the year even though the party never had
a chance to put on any evidence.
Conclusion
These two cases illustrate the need to
understand the intricacies of the interplay
between different parts of the statutes
and the administrative code that applies
when handling DBPR matters. As in
any legal matter, the best advice we can
ever give is to make sure the reader (and
the client) understands the critical need
for experienced guidance in this difficult
area. Since typically a professional license
and, therefore a livelihood is at issue, the
stakes are enormous. In the event you or
your client ever face an inquiry or have
any other interaction with The Florida
Bar or the DBPR it is advisable to be sure
of the impact of every move you make
before you make it.
Jeff Albinson and Joe Corsmeier are AV-rated
lawyers and practice together in the Clearwater firm of Albinson & Corsmeier, PA. Their
practice is statewide and focuses on matters
involving professional liability and professional licensure issues. The firm routinely
defends Florida Bar grievance cases, matters
before the DBPR and cases before all other
licensing arms of the government. The firm
defends legal malpractice claims and all other
claims involving professional negligence.
Albinson & Corsmeier, PA also provides
counsel on matters involving the formation, dissolution and merger of professional
practices and business entities and the firm
handles fee disputes and disputes involving
the compensation and employment of professionals. For more on the authors or the firm
see www.jac-law.com.
Lawyer Referral
Service wants you!
• If you’re a practicing attorney;
• interested in serving your
community;
• carry up-to-date professional
liability insurance;
• and want to lend your area of
expertise to those seeking legal
advice and at the same time,
increase your client base.
For additional information,
call 727-461-4869.
Patent, Trademark, Copyright
by Sidney W. Kilgore
When Should A Florida Trustee Seek The Advice of Special Intellectual Property Counsel?
A
key responsibility of any Florida trustee involves the competent administration of trust assets to ensure that their value
and income potential are preserved and utilized fully in the
interests of the beneficiaries. Florida Statutes section 736.0809 mandates that “A trustee shall take reasonable steps to take control of
and protect the trust property.”
Frequently, the assets a Florida trustee is charged with protecting may include one or more components of valuable intellectual
Sidney W. Kilgore
property, such as patents, trademarks, copyrights, trade secrets, or
licensed rights in any of these. The trustee may lack the specific skills and experience
in intellectual property law required to manage such assets. In these cases, the trustee
should consider engaging the assistance of special intellectual property counsel.
Florida Statutes section 736.0806 expressly requires a trustee who has special
skills or expertise, e.g., in intellectual property law, to use those special skills or expertise in the administration of the trust. Where the trustee lacks those special skills
and experience necessary to manage particular assets of the trust prudently, however,
the Florida Trust Code authorizes trustees to delegate their duties and powers to the
extent that a prudent trustee of comparable skills could properly delegate under the
circumstances. See Fla. Stat. §736.0807.
What sorts of powers and duties might a prudent trustee without special training in intellectual property law properly consider delegating to Special IP Counsel?
An important first task surely would entail a thorough analysis of the character of
all intellectual property in the trust. For example, are there U.S. or foreign patents
or patent applications in the portfolio? How about trademark or copyright registrations or applications? Does the trust have intellectual property rights by virtue of any
license or other agreement?
Secondly, Special IP Counsel might be expected to determine the current condition of any such assets. Are there docket deadlines for the payment of maintenance
fees to maintain, e.g., rights in an issued patent? Are any upcoming responses due to
outstanding office actions by the U.S. Patent and Trademark Office?
A third responsibility of Special IP Counsel would be to verify the rights of ownership in the intellectual property assets of the trust. This would involve a review of
all known recorded rights in, e.g., issued patents and applications for patents, regis-
trations of and applications for registration of trademarks and copyrights, and
so forth, similar to a review of the chain
of title to real property. It would further include an attempt to ascertain the
existence of any unrecorded assignments
of, or liens or other security interests on,
such IP assets.
Next, Special IP Counsel could be
asked to examine the content of licenses
and other agreements involving the IP
assets in the trust for the purpose of
evaluating any potential limitations on
the capacity of the trustee to exploit fully
those IP assets. This is part of the process
of determining the value of the IP assets.
Some important considerations in this
effort would include assessing the temporal duration and geographic boundaries
of the rights extended, the extent of any
exclusivity of those rights, and the royalty or other payment provisions associated with the licenses and agreements.
From this analysis, an estimate of future
income from licensing may be made,
and a means of tracking critical renewal
dates, accountings for royalties, and so
forth could be derived.
Finally, Special IP Counsel can
assist the trustee in assessing potential
IP liabilities and obligations to others.
This amounts, in general, to a thorough
review of potential, anticipated, ongoing,
and past litigation that has impacted,
or may impact, the acquisition, use, or
enforcement of the IP assets in the trust,
as well as an appraisal of the conditions
the trust must meet to utilize IP assets
licensed to it, such as the payment of
royalties to the licensor.
The oversight of IP assets in a trust
can be a complex and daunting prospect
for any Florida trustee. By retaining
Special IP Counsel to aid in the administration of these unique and valuable resources, however, a trustee can minimize
the potential for substantial loss and
thereby fulfill his or her fiduciary obligation to the trust and its beneficiaries.
Sidney W. Kilgore is an attorney who
practices in Tampa with the law firm of
Pennington, Moore, Wilkinson, Bell &
Dunbar.
Smile for th
e
mera!
ca
[Right] Clearwater Bar Foundation
President Joan Vecchioli, left, of Johnson,
Pope, Bokor, Ruppel & Burns, LLP,
presented Elizabeth Mannion with the
Foundation’s Excellence in Pro Bono
Award at the bar’s October membership
luncheon. Elizabeth, a partner with
Baxter, Strohauer, Mannion and Silbermann, P.A., served the Foundation as
president for two years and has handled
numerous cases through Gulfcoast Legal
Services Pro Bono Program.
[Right] The 6th
Judicial Circuit was
well-represented at the
October membership
luncheon by, among
others not pictured,
Judge John Schaefer,
Judge Nelly Khouzam,
Chief Judge Robert
Morris, Judge Skip
Schafer, and Court
Counsel Elaine New.
[Right] Stetson College of Law Career Development Director Cathy Fitch,
left, and Clearwater Bar Past President Susan Churuti chat at the October
membership luncheon. Stetson sponsored the event at Harborview Center.
The Rainmaker Coach
by Mark Powers
Referral Source Interview
T
hink about this: many of your referral sources are sending business to
you business in the past. Start out
other attorneys in addition to what they send you. They may like you,
with the ones you are most combut for whatever reason, they are spreading the work out to two or three
fortable with, just to get your feet
other attorneys, so you only receive 25% or 30% of their work. In some cases,
wet. Then specifically target those
this is an appropriate allotment due to your limited areas of specialization – but
you’d like to receive more business
in some cases the work is spread out due to other factors.
from in the future. Lead off the
Unfortunately, they may never tell you about these other factors that influconversation with your version of
ence to whom they’ll send work. Perhaps your turn-around time is too slow.
the following statement:
Mark Powers
Or maybe you don’t keep them informed well enough. It could be you haven’t
“I admire and respect the way
treated their referrals the way they think you should and they’ve gotten negative feedyou do business (or, I’m always trying
back about your office. Or maybe you take your referral sources for granted and haven’t
to improve the level of service to our
thanked them lately for the clients they send.
clients) and I’d like to ask your opinion
A great many attorneys make this same mistake: they ignore the substantial revenue on something. Is there anything I can do
that their referral sources provide and are caught off guard when one defects. Have you
to improve how I handle the clients you
ever had a referral source just drop off the radar screen? Someone who used to send a lot send me?”
of business, then stopped for some reason? They haven’t moved, died or changed their
The referral source may initially refuse
business model and you don’t know why the referrals just stopped.
to say anything negative in response to
Find out.
this question. Press them gently by askAnd don’t wait until something negative happens. Here’s more bad news: If you
ing first a more positive question, then
don’t take very good care of your referral sources, someone else will. Competition for
moving to more pointed questions:
referral sources is on the increase. If you haven’t thought about your referral sources as
“OK. What do you think we do well?”
the valuable asset that they are, calculate their worth to you, not just over the course of
Wait for the response, then, “Could we
one year, but over the lifetime of your practice. One good referral source can send many improve on any of those aspects of the
thousands of dollars worth of business, sometimes hundreds of thousands of dollars. If
practice?”
you want them to feel as important as they are, ask their opinions on your practice and
Then move to, “Is there anything you
how it serves the people they send.
suggest I stop doing, or change completeInterestingly enough, an opinion-gathering conversation like this is useful for far
ly, about how we deal with clients?”
more than just gathering information. It builds rapport and intimacy. Why? Because,
Alternately, “What are three things
as with all of our strategic interviews, the individuals you ask questions of will come
you’d suggest I could do better?”
away complimented that you asked their opinions. From their perspective, it means you
It is of paramount importance that
care about them, and value what they think. It signals that you are paying attention to
you not go into a defensive posture if any
their needs and those of their clients. It indicates you are not just taking their referrals
negative comments are made. This will
for granted but recognize their importance to your success.
see Rainmaker Coach on page 21
To try this for yourself, go out and interview three to five people who have referred
you.
Your clients rely upon
You can rely upon Sabal Trust Company.
Independent. Locally owned. Invested in this community, for more than 20
years, providing uniquely tailored services to individuals, families, corporations
and not-for-profit organizations – and the attorneys who serve them. Whether
you are assisting a valued client in selecting a trustee or investment advisor or
you are looking for support of in-house fiduciary services, you can turn to Sabal
Trust Company with confidence. Please call for more information.
Investment Management
Trust Services
ST. PETERSBURG 727-824-8700
866-447-2225 TAMPA 813-229-2180
www.sabaltrust.com
800-274-2180
Serving you is our privilege.
Since 1883, Whitney Bank has been providing law firms with
professional, personalized service. Our team of dedicated,
experienced bankers looks forward to sitting at your table.
Clearwater Branch
1465 South Fort
Harrison Ave.
Clearwater
727-446-5780
Tarpon Springs
503 South Pinellas Ave.
Tarpon Springs
727-937-7641
Northeast Branch
3400 Fourth St. North
St. Petersburg
727-388-2265
Countryside Branch
28163 U.S. Hwy. 19
North
Clearwater
727-712-4775
Downtown St. Petersburg Branch
100 Second Ave. North
Chamber of Commerce Building
St. Petersburg
727-388-1000
49th Street Branch
12647 49th St. North
Clearwater
727-573-0049
Palm Harbor
35388 U.S. Hwy. 19
North
Palm Harbor
727-786-3888
Downtown St. Petersburg Branch
Drive-Up Only
352 Second Ave. South
St. Petersburg
727-820-0915
Tyrone Branch
2172 Tyrone Blvd.
St. Petersburg
727-344-0070
Mitchell Ranch Plaza
2914 Little Rd.
New Port Richey
727-375-5100
Indian Rocks Branch
14040 Walsingham Rd.
Barclay Square
Largo
727-517-9600
Member FDIC
W07-102_7.5x5 BWv5.indd 2
4/9/07 3:03:37 PM
MEDIATION
CHARLES A. BUFORD
Attorney at Law
Convenient Mid-County Location with
Multiple Conference Rooms Ideal for
Mediation
Certifications
Experience
Certified Circuit Civil Mediator
20 years civil trial practice in most areas of
Civil Litigation, including:
Products Liability
Commercial
Auto Negligence
Business
Insurance Defense
Construction
Malpractice
Professional Liability
Insurance
Personal Injury
Probate
Premises Liability
Board Certified Civil Trial Lawyer
Board Certified Business Litigation
Member Million Dollar Advocates Forum
AV Rated
Harper, Kynes, Geller and Buford, P.A.
2560 Gulf to Bay Blvd., Suite 300
Clearwater, Florida
Phone: (727) 799-4840
Fax: (727) 797-8206
Email: [email protected]
Trial Practice
by Stacy Baynard Storr
Market Focus Techniques for Trial Lawyers
T
he courtroom is a forum for application of independent community “values,”
and it is those values alone which dictate a verdict on damages. It is not what
the trial lawyers think is important in the courtroom that controls the outcome, it is what the judge and jury think is important that controls the outcome. In the
same vein, it is not what the insurance company, adjuster or lawyer think is important
that controls the value of the case. Neither is it what the plaintiffs, defendants or their
lawyers think regarding value that controls. Manufacturers, real estate developers and
politicians all use market survey techniques to anticipate market acceptance, set pricing
and develop advertising strategies. Why not learn from their success?
There are three varieties of market focus study. Focus groups can be used in the
early stages of the case to obtain raw ideas and insight into thoughts, expressions and
themes. From the raw ideas of the focus groups, attorneys can then structure hypothetical trial themes, contour discovery and work toward trial. After initial case development, as the attorneys are learning the real facts, summary mock trials can be employed
to test plaintiff and defense themes and potentially catastrophic pitfalls. Finally, when
discovery has been completed, an actual mock trial can be used as a dress rehearsal.
This allows the attorneys to look for areas to emphasize and de-emphasize, to test
exhibits and timelines and to refine their verbal presentation. There are three different
processes for three different products.
The author is with The Jury Speaks, Inc., and can be reached at 727-452-1656 or
[email protected].
Bits & Briefs
•Macfarlane Ferguson & McMullen is pleased to announce the selection of Joshua
Magidson as the 2007 recipient of the prestigious Richard T. Earle, Jr. Professionalism
Award. The award is presented by the Barney Masterson Inns of Court to the lawyer
who demonstrates the highest degree of professionalism in the practice of law in the
county and circuit courts.
•The Leadership Pinellas Class of 2008 includes Clearwater Bar members Sherri Stinson, James Stearns and Mark Wall.
•Lawyers for Literacy is seeking tutors for its 2007-08 program, which begins November 28, 2007 and runs through March 5, 2008. Volunteers work one-on-one
with a third-grade child for one hour per week for 12 weeks to help him/her prepare
to pass the reading part of the FCAT. Contact Jowita Wysocka, Executive Director, at 727-323-4020 or [email protected]. Visit our website at
www.LawyersForLiteracy.org for more information.
•Laura Snell, formerly with the Public Defender’s Office in Clearwater has joined
Wagstaff Law Office, P.A. The firm concentrates its practice in the areas of family,
juvenile and adoption law as well as estate planning and probate.
•Sixth Judicial Circuit Judge Irene Sullivan was appointed to a 25-member statewide
“Blueprint Commission” that is charged with developing a plan for reforming Florida’s
juvenile justice system. The commission of community leaders, juvenile justice stakeholders and policy experts will address key concerns, such as juvenile recidivism, overrepresentation of minority youths, and the trend involving girls—the fastest-growing
segment of the juvenile justice population.
Rainmaker Coach continued from page 19
shut down the flow of information and indicate that you really weren’t open to constructive suggestions. View any nuggets of
information gleaned from the conversation, whether they be positive or negative,
as very valuable and thank the person for
their opinions. Don’t provide excuses,
don’t accuse the referral source of having
impossible standards, just thank them and
say that you’ll use everything they mention to enhance the level of service you
provide to clients. Nine times out of ten
the referral source won’t have anything
substantially negative to say, but will just
be complimented that you’ve asked them.
This conversation opens the door to more
referrals from that referral source who
could be spreading the work around to
other attorneys. Why? Because you cared
enough about their clients to ask these
kinds of questions. And we guarantee
you—most of the other attorneys they
may be sending work to, do not.
The power of this strategic conversation lies in the unique advantage
it creates—it sets you apart from your
competition and increases the likelihood
that when that referral source has a client to send, they think of you. We call it
“Top Of Mind Awareness,” and you can’t
succeed without it. Test this theory for
yourself and schedule an interview as a
client development experiment—what do
you have to lose?
Mark Powers, President of Atticus, Inc., coauthored “The Making of a Rainmaker: An
Ethical Approach to Marketing for Solo and
Small Firm Practitioners,” is a featured
marketing writer for Lawyers, USA and a
number of other publications. To learn more
about the work that Atticus does with attorneys or the Atticus Rainmakers™ program,
please visit www.atticusonline.com or call
352-383-0490 or 888-644-0022.

















































Bankruptcy
S
by Camille J. Iurillo and Gina M. Pellegrino
Can a Bankruptcy Trustee Stop the Defense of an Insurer by
Claiming Insurance Proceeds are an Asset of the Estate?
cenario: A corporation obtains a Directors’ and Officers’ insurance policy (“D&O
policy”) to insure the officers and directors of the corporation as well as the corporation itself. The corporation (“Debtor”) files for Chapter 11 bankruptcy. The
Chapter 11 Trustee (“Trustee”) files adversary proceedings against the officers and directors of the Debtor, alleging among other causes of actions, breach of fiduciary duty.
As a result, the officers and directors of the Debtor, as insureds, report claims against
the D&O policy to the insurance company (“insurer”), during the time period that the
D&O policy is in effect. The insurer agrees to pay to defend. However, the Debtor,
also an insured, does not report any claims against the D&O policy to the insurer. The
litigation between the parties becomes protracted. Thereafter, the Trustee takes the
position that the proceeds of the policy are an asset of the bankruptcy estate; since the
attorneys’ fees and costs are decreasing the amount available to pay on the claim, the
officers and directors should be precluded from paying their attorneys from the policy
proceeds. Can the Trustee preclude the defense of the insurer under a D&O policy by
claiming that the insurance proceeds are an asset of the bankruptcy estate?
No, not likely under our scenario because the insurance proceeds of the D&O
Policy are not an asset of the bankruptcy estate for the following three reasons.
First, in our scenario, the Debtor received its discharge in the Chapter 11 bankruptcy case. As a result, any claims that would have been covered under the D&O
policy, which could have been brought against the Debtor, were discharged. One of the
linchpins of determining whether policy proceeds are an asset of the bankruptcy estate
is whether the Debtor has a right to the proceeds. See, In re Scott Wetzel Servs., Inc., 243
B.R. 802, 804-5 (Bankr. M.D. Fla. 1999). Since any potential claims were discharged,
no claims existed to bring against the D&O policy; therefore, the insurance proceeds
are not an asset of the bankruptcy estate. The Court in In re CHS Elecs., Inc., 261 B.R.
538, 543 (Bankr. S.D. Fla. 2001) reviewed an insurance policy which provided direct
coverage for claims against the officers and directors of the corporation and the debtor
corporation itself to determine whether the proceeds of the policy were assets of the
estate. The Court in CHS Elecs., Inc. held that no basis existed for treating the insurance
proceeds as an asset of the bankruptcy estate since all of the potential covered claims
that could have been raised against the debtor corporation were discharged in the
bankruptcy. See, CHS Elecs., Inc., 261 B.R. at 543.
Secondly, if there are no claims against the Debtor that are present or reasonably
foreseeable then the insurance proceeds of the D&O policy would not be an asset of the
bankruptcy estate because the Debtor does not have a claim against the policy. Since no
direct claims exist against the Debtor corporation then no claims exist that could compete for available coverage. See, In re Allied Digital Technologies, Corp., 306 B.R. 505, 512
(Bankr. D. Del. 2004). Nevertheless, a court may determine that insurance proceeds
are an asset of the bankruptcy estate, in circumstances that are distinguishable from the
scenario set forth above. For example, if a debtor corporation is covered as an insured
along with its officers and directors under an insurance policy and the court determines
that there is a basis for a claim under the insurance policy against the debtor corporation or such a claim is reasonably foreseeable then the court may consider whether the
available insurance proceeds are an asset of the bankruptcy estate. See, Allied Digital
Technologies, Corp., 306 B.R. at 512-3.
Finally, it is the duty of the Trustee to collect the assets belonging to the bankruptcy estate, but the insurance policy proceeds are only collectable if the Debtor has
an interest in the proceeds. See, CHS Elecs., Inc., 261 B.R. at 541-2. The Trustee has no
duty or right to stop the insurer from paying for the defense of the officers and directors, just because the cost of defense will decrease the amount of coverage available to
pay on the claim against the officers and directors. The only insureds, from our scenario, with an interest in the D&O policy, are the officers and directors of the Debtor. The
Debtor corporation has no interest in the
insurance policy proceeds, as no claims
exist against the Debtor corporation in
the bankruptcy court. Furthermore, the
Debtor corporation did not report any
claims against the D&O insurance policy
to the insurer; thus, the Debtor corporation has no right to the insurance proceeds of the policy.
In conclusion, the Trustee in a bankruptcy case is not always entitled to collect
the insurance proceeds, as an asset of the
bankruptcy estate, even if the debtor is an
insured under the policy. In order for the
Trustee to obtain these proceeds on behalf
of the bankruptcy estate, the debtor will
likely be required to show that it has an interest in the insurance policy proceeds.
Camille J. Iurillo and Gina M. Pellegrino
of Iurillo & Associates, P.A., St. Petersburg,
practice primarily in the areas of Commercial
and Bankruptcy Litigation and Debtors’/
Creditors’ Rights.
Pinellas County
Paralegals
T
he Pinellas County Chapter of the
Paralegal Association of Florida,
Inc., meets on the second Monday
of each month at the Holiday Inn Select
located at 3535 Ulmerton Road, Clearwater. The next two meetings are scheduled
as follows:
• Monday, November 12, 2007 at
6:15 p.m., Speaker/Program: Joseph
Porcelli—Sinkhole and Hurricane Property Damage
• There is no meeting scheduled in
December 2007.
Paralegals, student paralegals, nonmembers and attorneys are always welcome. For further information or to make
reservations, please call Teresa Smith,
CP, at 727-344-8107 or teresa.smith@
sembler.com no later than five days in
advance of the meeting.
Address Changes
• Andringa, R. Scott, R. Scott Andringa,
Esquire LLC, Airport Business Center,
4500 140th Ave. N., Ste. 119, Clearwater, FL 33762
• Buchwalter, Rick A., Rick A. Buchwalter, P.A, 3055 Oakbrook Cir., Clearwater, FL 33759-1360
• Churuti, Susan H., 330 Beach Dr. NE,
#2303, St. Petersburg, FL 33701, 8245690, [email protected]
• Dalgleish, Kimberle S., Golson Law
Firm, 1230 S. Myrtle Ave., Ste. 105,
Clearwater, FL 33756, 446-4826, fax
446-1723, [email protected]
• Diehl, Lindsey, 2465 Heron Terrace,
#B102, Clearwater, FL 33762, 7981508, [email protected]
• Fisher, Nathaniel C., Law Offices of
Charles McKeon, PA, 633 N. Franklin
St., Ste. 400, Tampa, FL 33602-4427,
813-318-3030, fax 813-318-9127,
[email protected]
• McMillen, Cynthia J., Law Offices of
Joseph F. Pippen, Jr. & Associates, 1920
East Bay Drive, Largo, FL 33771
New & Reinstated Members
Welcome to the following new and reinstated members:
• Carson, Colleen A., Thomas Jefferson School of Law 2006, Undergraduate Degree
from Furman University 2003, Baskin Fleece, 13577 Feather Sound Dr., Ste. 550,
Clearwater, FL 33762, 572-4545, fax 572-4646, [email protected]
• Dubov, Pamela M., Stetson University College of Law 2001, Undergraduate Degree from Cameron University 1979, Office of Pinellas County Property Appraiser, 315 Court St., Clearwater, FL 33756, 464-4295, fax 781-1859,
[email protected]
• Gordon, Michael, Stetson University College of Law Class of 2008, Undergraduate
Degree from Flagler College 2004, 9057 109th Ave., Largo, FL 33777, 1-352-2498210, [email protected]
• MacGregor, John H., Stetson University College of Law 1991, Undergraduate Degree from Auburn University 1987, Quintairos Prieto, 4905 W. Laurel St., Ste. 200,
Tampa, FL 33607, 813-286-8818, [email protected]
• Mills, Pamela J., University of Florida Law School 1987, Undergraduate Degree
from Stetson University-Deland 1984, O’Malley & Mills, P.A., 906 N. Belcher Rd.,
Clearwater, FL 33765, 442-1965, fax 441-2213, [email protected]
• Phillips, David R., Florida State College of Law Class of 2009, Undergraduate Degree from Stanford University 2004, 2336 Cypress Cove Dr., Tallahassee, FL 32310,
688-9365, [email protected]
• Millian, Richard C., Tew & Associates,
2655 McCormick Dr., Clearwater, FL
33759-1041
• Powers, Amanda N., Stetson University College of Law 2004, Undergraduate
Degree from University of North Florida 2000, 2288 Lanai Ave., Belleair Bluffs, FL
33770, 455-6559, [email protected]
• Myer, Christian A., Giffin, Papp &
Myer LLC, 11681 Seminole Blvd.,
Largo, FL 33778, 393-8351, fax 3922188, [email protected]
• Vessel, Robert L., Seton Hall Law School 1973, Undergraduate Degree from University of Illinois 1964, Carlson & Meissner, 250 Belcher Rd. N., Ste. 102, Clearwater, FL 33765, 443-1562, fax 449-0258, [email protected]
• Pippen, Joseph F., Jr., Law Offices of
Joseph F. Pippen, Jr. & Associates, 1920
East Bay Drive, Largo, FL 33771
• Rooth, Joseph M., Rooth Law Firm,
PA, 8212 Massachusetts Ave., New
Port Richey, FL 34653-3108
• Silon-Laguna, Lynette, Lynette SilonLaguna, P.A., 6314 U.S. Highway 301
South, Unit A-1, Riverview, FL 33578
• Snell, Laura, Wagstaff Law Office, P.A., 161 14th St. N.W., Largo,
FL 33770, 584-8182, fax 581-0249,
[email protected]
• Sock, Steven T., c/o Gary E. Williams,
Esq., 4625 East Bay Dr., #314, Clearwater, FL 33764, 531-8737, fax 5318719, [email protected]
• Tew, Joel R., Tew & Associates, 2655
McCormick Dr., Clearwater, FL
33759-1041
CBA Member
Benefit Program
ABA Books
25% Discount on ABA Publications
ababooks.org
Enter Source Code: PAB5ECWB
Online Legal Career Center
clearwaterbar.org
800-659-5589
Paychex
Payroll Service
Adam Cunningham, 727-579-4700, x29213
Affiniscape Merchant Solutions
Credit/Debit Card Processing
1-866-376-0950
[email protected]
CBA Lawyer Referral Service
Client Referrals, 461-4880
Darrin Johnson
Premier Conferencing
Ready Conference Plus
Julie Packham, 877-782-5092
[email protected]
CBA Legal Placement Service
Law Office Staff Placement
Linda @ Bar Office, 461-4869
Sir Speedy
Discount on printing
727-584-7136
CLE CDs and Audiotapes
John @ Bar Office, 461-4869
EconOffice Products & Supplies
Office Supplies and Equipment
Jean McNally, 866-971-5187, x203
Sean Patrino, [email protected]
Gulf Coast Business Review
Law/Business Review
Ann Shumate, 800-403-2493, x2
Thomson West
Legal Research
Dave Muller, 727-742-3217
[email protected]
Updegraff Vision
Discount on LASIK surgery
Jolene Slone, 727-490-7528
[email protected]
Jackie Domante, 727-490-7523
[email protected]
InTouch Legal
Law Office Technology
Debbie Foster, 544-5400
Morton Plant Mease Wellness Center & Family Fitness
Clearwater: Jennifer Huck, 462-7656; Palm
Harbor: Penny Skaggs, 772-2222; Carillon:
Gil Peri, 502-4444
Whitney Bank
Banking Services for Lawyers
Rob Shaw, 727-502-1960
[email protected]
LEGAL COPYING SPECIALISTS
WE DO IT ALL. We’ll handle all your litigation copying including pleadings, exhibits, case books, depositions and discovery work.
We’ll copy client files including color photographs. We can reproduce oversized charts and graphs. You can trust us with large
volume copy jobs. We tab, punch and assemble. We offer design, typesetting, printing and complete legal binding options.
And we’ll provide detailed billing by project.
TELL US WHAT YOU NEED. We will supply you with your Legal Copying Services Instruction Form. Use it to tell us exactly
what services you require. We’ll be happy to supply the instruction forms in quantity. Just give us a call. Need information or
services that aren’t on our current form? Let us know. We’ll develop a form exclusively for your firm.
FREE PICK UP AND DELIVERY. Give us a call. We’ll pickup your job fast. At no charge. We’ll do the work accurately and meet
your deadline. Then we’ll deliver it fast. And delivery is free.
COMPLETE CONFIDENTIALITY. Each person on our staff has signed a non-disclosure agreement, to ensure that confidential
files, documents and exhibits stay that way. In addition, inferior copies are shredded.
LET US PLEAD OUR CASE. Call us. We’ll meet with you and explain our full-service capabilities.
formerly Price Donoghue Ridenour
Helping Businesses Reach
Their Financial Goals
Tax & Audit Services
Trust & Estate Accounting
Business Valuations
Forensic Accounting
Family Law Assistance
Lost Profit Claims
Accounting Support
PDR CPAs
29750 US Hwy 19 N.,
Suite 101
Clearwater, FL 33761
Tel. (727) 785-4447
Fax (727) 784-5491
Law And Order Guarantee
À}ÊÕÃÊÞÕÀÊÕ>ÃÃiLi`ÊÀ}>Ê«i>`}Ã]ÊiÝLÌÃ]Ê>`ÊV>ÃiÊLÃ°ÊÊ7i½Ê>ÛiÊÞÕÀÊ`VÕiÌÃÊV«i`]ÊV>ÃiÃÊ>ÌÌ>Vi`ÊÜÌÊiÝLÌÃ]Ê
Ì>LLi`]Ê«ÕVi`Ê>`ÊÀi>`ÞÊvÀÊv}Ê>ÌÊÌiÊ>}Àii`ÊÕ«Êì>ì°
PRINTING • COPYING
DIGITAL NETWORK
COMPLETE BUSINESS COMMUNICATIONS SERVICES:
 Digital Color and Black & White Copying
 1 to 4 Color Offset Printing with Computer to Plate Technology
 Typesetting and Graphic Design – Complete Bindery and Mailing Services
FREE PICK UP AND DELIVERY!
615 N. Missouri Avenue • Largo, Florida 33770 • Phone 727-584-7136 • Fax 727-585-0927
E-mail: [email protected] • Website: www.sirspeedy.com/largo
www.pdr-cpa.com
(OWõMANYõHOURSõWOULDõYOUõLIKEõTOõ
SPENDõMANAGINGõYOURõASSETS
7ITHä7ACHOVIAä3ECURITIESä#OMMANDä!SSETä0ROGRAMäYOUäGETx
sä!LLäYOURäINVESTMENTäANDäBANKINGäNEEDSäINäONEäEASYTOä ä
ä MANAGEäRELATIONSHIP
sä!äWIDEäRANGEäOFäAVAILABLEäINVESTMENTS
sä4HEäGUIDANCEäFROMäAäTEAMäOFäFULLSERVICEä&INANCIALä!DVISORS
*OEä(EUNKE
4OäLEARNäMOREäABOUTäHOWäWEäCANäSAVEäTIMEäFORäYOUäCONTACTäUSäTODAY
4HEä(UENKEä+AROLLä1UINNä'ROUPäOFä7ACHOVIAä3ECURITIES
ä53ää.ORTHä3UITEääsä#LEARWATERä&,ä
äsä
JOSPEHHUENKE WACHOVIASECCOM
õ3ECURITIESõANDõ)NSURANCEõ0RODUCTS
./4õ).352%$õ"9õ&$)#õ/2õ!.9õ&%$%2!,õ'/6%2.-%.4õ!'%.#9õsõ-!9õ,/3%õ6!,5%õõsõ./4õ!õ$%0/3)4õ/&õ/2õ'5!2!.4%%$õ"9õ!õ"!.+õ/2õ!.9õ"!.+õ!&&),)!4%
7ACHOVIAõ3ECURITIESõ,,#õ-EMBERõ.93%3)0#õISõAõREGISTEREDõBROKERDEALERõANDõAõSEPARATEõNONBANKõAFlõLIATEõOFõ7ACHOVIAõ#ORPORATIONõÚõ7ACHOVIAõ3ECURITIESõ,,#õõõõ
Experience is Expertise.
When it comes to publishing legal notices,
the Gulf Coast Business Review has both — experience and expertise.
Founded 53 years ago as the Pinellas Review and later known as the Tampa Bay Review,
the Gulf Coast Business Review is Greater Tampa Bay’s expert in legal notice advertising. No
other newspaper along the Gulf Coast of Florida publishes more legal notices than the Gulf Coast
Business Review. And there’s a reason for that: Outstanding customer service.
To learn more about our legal notice service,
call Diana Campbell, 800-403-2493, ext. 307.
Serving Hillsborough, Pinellas, Pasco, Sarasota, Manatee and Lee counties
1424 Court Street, Ste. 4, | Clearwater, FL 33756
Phone: 727/447-7784; 800/403-2493 | Fax: 727/447-3944
C L A S S I F I E D RATES
Non-CBA Members
$50—50 words or less
Classified Advertising
CBA Members
$25—50 words or less
View these ads and more at
www.clearwaterbar.org/classified.
$1 per additional word.
Ads must be pre-paid.
Office Space for Rent/Lease
For advertising information, contact:
Clearwater Bar Association
314 S. Missouri Ave., Suite 107
Clearwater, FL 33756-5858
Phone: 461-4869 Fax: 461-0063
Email: [email protected]
Letters, Faxes, E-mail to the Editor
• St. Petersburg – Historic Kenwood: Law Office for Rent. 2461 1st Ave. North. 2 offices &
separate secretarial space. Additional space also
available if needed. Corner lot bungalow w/open
front porch, hardwood floors, large oak. On-site
parking, convenient to courthouse/downtown.
For details call 727-321-4443.
The CBA Res Ipsa Loquitur welcomes your comments
on topics relating to the law, the legal profession, the
Clearwater Bar Association or the Res Ipsa. Letters
must be signed, but names will be withheld upon request. The editor reserves the right to condense.
Support our
advertisers!
Tell them you
saw their ad in
Res Ipsa
Loquitur.
Send letters to:
Editor, Res Ipsa Loquitur; Clearwater Bar Association;
314 S. Missouri Ave., Suite 107; Clearwater, FL
33756-5858; Fax: 461-0063; Email: office@
clearwaterbar.org
MEDIATION & ARBITRATION
DALAN & KATZ, P.L.
Attorneys at Law
*Rick Dalan & Jeffrey M. Katz
!
!
!
!
*Certifications:
Board Certified Civil Trial Lawyer
Certified Circuit Civil Court Mediator
Certified Federal Court Mediator
AV Rated
Mediation Services for:
! Personal Injury Litigation
! Coverage Litigation
! Medical Malpractice
! Wrongful Death
! Products Liability
! Construction Litigation
! Commercial Litigation
! Discrimination Claims
! First Party Insurance Claims
2633 McCormick Drive, Suite 101
Clearwater, Florida 33759
Phone: (727) 796-1000 or (800) 538-4173
Facsimile: (727) 797-2200
Experienced in:
!
!
!
!
!
!
!
!
!
Insurance Defense
Plaintiff Personal Injury
Civil Litigation
Premises Liability
Coverage Litigation
Products Liability
Wrongful Death
UM Claims
Auto Negligence
Presorted Standard
US Postage
PAID
Clearwater, FL
Permit No. 352
314 S. Missouri Avenue, Suite 107
Clearwater, Florida 33756-5858
Change Service Requested
November 2007 · Calendar of Events
Date
Group and Event
Time and Place
Registration
11-08
Membership Luncheon
11:45 am Harborview Center
RSVP Bar Office 461-4869
11-09
Bankruptcy Committee
7:45 am Bob Evans, US 19N
RSVP Steve Fishman, 724-9044
11-09
Golf Classic
Noon-6 pm Belleview Biltmore Golf Club
11-14
Judge Baird’s Roundtable
12:00 Noon 315 Court St., 4th Fl.
11-15
Probate CLE
Noon Radisson Central
11-15
Young Lawyers Division
5:30 pm Courtside Grill, Feather Sound
RSVP Christina G. Rankin 441-8813
11-28
Family Law & Elder Law CLE
11:45 am Radisson Central
11-22/23 Thanksgiving Holiday
CBA Office Closed
December 2007
12-03
Holiday Party
6:00-8:00 pm Radisson Central
12-13
5:30 pm Casa Ludovico, Palm Harbor
12-14
12-24/31 Holiday Observance
CBA Office Closed
January 2008
01-01
New Year’s Observance
CBA Office Closed
01-09
Judge Andrew’s Roundtable
12:00 Noon 315 Court St., 4th Fl.
01-10
Membership Luncheon
11:45 am Harborview Center
01-10
FREE Professionalism CLE
1:30-4:30 pm Harborview Center
01-11
01-16
Family Law & Elder Law CLE
11:45 am Radisson Central
01-17
Probate CLE
Noon Radisson Central
01-17
5:30 pm Flanagan’s, Dunedin
01-19
YLD’s Holidays in January
12:30-3:30 pm Clearwater Marine Aquarium
RSVP See page XXX
Consult CBA’s web calendar for event updates at clearwaterbar.org. Click on date for details.

It`s Party Time! - Clearwater Bar Association

Transcription

Similar documents

Friday, June 10, 2016 - The Arc Tampa Bay Foundation

Clearwater Seafoods

June 2016 - City Home

CHABAD OF CLEARWATER

View PDF - Reflections St Lukes

April/MAy - Clearwater Bar Association

FL7891-R3 Florida Product Approval for International Beams I

28th Gasparilla Classic Gymnastics Invitational

to property brochure