Alan S. Fishman - incoming President of the BCBA

SERVING THE CITIZENS AND LEGAL COMMUNITY OF BROWARD COUNTY SINCE 1925

June 2013

Alan S. Fishman

incoming President

of the BCBA

SERVING THE CITIZENS AND LEGAL COMMUNITY OF BROWARD COUNTY SINCE 1925

Also in this issue:

· Florida Wage Laws:

Mandatory

Direct Deposit…

· Don’t Let Your Clients…

Without Counsel

· Tales of a Trafc Court

Hearing Ofcer

Broward County Bar Association Barrister

2 | June 2013

DEBTOR & CREDITOR RIGHTS

Corporate Financial Restructuring

Bankruptcy and Insolvency

Commercial Loan

Restructuring

and Foreclosure

Litigation

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954-462-8000 305-379-3121

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commercial transactions, as well as trusts, estates

and guardianships.

“The hiring of a lawyer is an important decision that should not be based solely upon advertisement.

Before you decide, ask us to send you free written information about our qualifications and experience.”

Rice Pugatch Robinson & Schiller, P.A.

Broward County

Bar Association

Recognizes 100% Membership Club

Gray Robinson, P.A.

Colodny, Fass, Talenfeld, Karlinsky, Abate & Webb

Brinkley Morgan

Wicker, Smith, O’Hara, McCoy and Ford, P.A.

Billing, Cochran, Lyles, Mauro & Ramsey, P.A.

Fowler White Boggs, P.A.

Fowler, White, Burne, P.A.

McIntosh, Sawran & Cartaya, P.A.

Chimpoulis, Hunter & Lynn, P.A.

Cole, Sco, and Kissane

Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A.

Goldstein Law Group

Panza, Maurer, & Maynard, P.A.

Walton, Lanta, Schroeder & Carson, LLP

Doumar,Allsworth,Laystrom, Voigt, Wachs, Adair, & Bosack, LLP

Ferencik, Libano, Brandt, Bustamante, & Goldstein, P.A.

Haliczer, Pes & Schwamm, P.A.

Keller Landsberg

Rogers, Morris & Ziegler, LLP

Green, Murphy & Murphy, P.A.

Bunnell & Woulfe, P.A.

Law Oces of Sheldon J. Schlesinger, P.A.

Cooney Trybus Kwavnick Peets, PLC

Phillips Cantor Shalek & Rubin, P.A.

Kelley Uustal

MacLean & Ema

Gladstone & Weissman, P.A.

Berman, Kean & Riguera, P.A.

Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC

Catri, Holton, Kessler & Kessler P.A.

Moody, Jones, Ingino & Morehead, P.A.

Broad & Cassel

Fazio, DiSalvo, Cannon, Abers, Podrecca, Fazio & Carroll

**For rms with 6 aorneys or more**

Broward County Bar Association Barrister

June 2013 | 3

inside this issue

sta box

For informaon on upcoming

events, please check out:

www.browardbar.org/calendar/

Letter from the President

Deborah FitzGerald

Young Lawyers’ Section

Letter from the President

Meghan Clary

Alan S. Fishman to be

Installed

Wage Laws

CatalinaM. Avalos and

Megan L. James

Social Scene

Developments in the Law

Nancy Little Hoffman

Don’t Let Your Clients...

Jon May

Tales of a Trafﬁc...

Russell Thompson

Calendar of Events

PUBLISHER

Broward County Bar Association

954.764.8040

PUBLICATIONS & PUBLICITY

COMMITTEE

Edwina V. Kessler, Chairperson

BOARD OF DIRECTORS LIAISON

Laura Varela

EXECUTIVE EDITOR

Braulio Rosa

braulio@browardbar.org

LAYOUT AND PRINTING

Park Row Printing

MEDIA MANAGER

Bonnie Ross

bonnie@browardbar.org

954.817.7032

CONTRIBUTING WRITERS

Catalina Avalos

Braulio Rosa

Meghan Clary

Deborah FitzGerald

Nancy Little Homan

Jon May

Russell Thompson

BILLING INQUIRIES

954.764.8040 Ext. 201

The Barrister is published monthly by

the Broward County Bar Association. All

editorial, advertising and photos may be

submitted for consideration through email to:

braulio@browardbar.org

We make every eort to ensure the accuracy of

the information published, but cannot be held

responsible for any consequences arising from

omissions or errors. Opinions expressed by

our writers and advertisers are not necessarily

opinions shared by the BCBA or the Barrister.

ON THE COVER:

Alan S. Fishman incoming President of the BCBA

JUNE 2013

Alan S. Fishman

incoming President

of the BCBA

SERVING THE CITIZENS AND LEGAL COMMUNITY OF BROWARD COUNTY SINCE 1925

Broward County Bar Association Barrister

June 2013 | 11

The form in which an employer

pays its employees is generally the

least of its payroll concerns, but

Florida law imposes specic require-

ments on how employees are paid.

Employers can pay their employ-

ees’ via several methods, including

orders, checks, drafts, notes, memo-

randums, payroll debit cards, or other

acknowledgments of indebtedness,

but regardless of the form of pay-

ment, it must be:

(i) negotiable and payable in

cash, on demand,

(ii) without discount,

(iii) at some established place of

business in the state,

(iv) the name of which must ap-

pear on the instrument or in

the payroll debit card issuing

materials, and

(v) at the time of issuance, and

for at least thirty (30) days

thereafter, the maker or draw-

er must have sufcient funds

or credit for its payment.

Fla. Stat. § 532.01. If an employer

fails to comply with any of the above

requirements and this failure results

in a reduction of an employee’s right-

ful wages, then the employer may

face exposure to liability for violat-

ing state and federal wage laws.

Payment by direct deposit is ad-

mittedly convenient and cost-effec-

tive, but utility does not trump an em-

ployee’s rights. Under Florida Statute

§ 532.04, an employer can pay its

employees via direct deposit only if

the direct deposit has been autho-

rized in writing by the employee

and if the employee has designated

in writing the nancial institution of

his or her choice in which such de-

posit is to be made. Not only must an

employer have consent, but it cannot

“terminate the employment of any

employee or payee solely for refus-

ing to authorize such direct deposit

of wages or salary.”

Accordingly, you cannot “re-

quire” an employee to receive pay-

ment of his or her wages via direct

deposit as a condition of employ-

ment. Because the statute requires

“consent,” it makes sense that for

the consent to be valid, it cannot be a

condition of employment. If it were,

the voluntariness of that consent

would necessarily be undermined.

Moreover, it frustrates theories of

statutory construction to argue that an

employer can require direct deposit

as a condition of employment. If this

were the case, the statute would not

call for “consent,” but rather for the

employer to give notice to its pro-

spective employees that direct de-

posit is the employer’s sole method

of payment. Finally, the statute also

provides for attorneys’ fees in favor

of the employee for any violation, so

employers should avoid compulsory

direct deposit.

In conclusion, you can certainly

offer direct deposit, but you cannot

require it or retaliate against an em-

ployee for failing to elect or consent

to receive payment by direct deposit.

Given an employer’s recourse to al-

ternative methods of paying its em-

ployees, the conservative approach

is to present the employee with the

“option” to be paid via direct deposit,

but to remain exible in the event the

employee does not elect or consent to

payment by direct deposit.

By: Catalina M. Avalos

Edited by: Megan L. Janes

Catalina M. Avalos is a

partner at the law rm

of Tripp Scott, P.A.

and focuses her

practice in the area of

employment and com-

mercial litigation.

She may be contacted

at 954 760-4912 or

by e-mail at cma@

trippscott.com.

Pay Attention to Florida

Wage Laws:

Mandatory Direct Deposit

is Not Worth It.

Broward County Bar Association Barrister

4 | June 2013

Thank you to our

2013 Raising the Bar

Event Sponsors

LUNCH SPONSOR

FOWLER WHITE BURNETT

GOLD SPONSORS

LAW OFFICE OF

STEPHANIE L. SCHNEIDER, P.A.

MATTHEW LUNDY LAW GROUP

THE TOBY CENTER

SILVER SPONSOR

BRITT & COMPANY, P.A.

THANK YOU TO OUR

2013 LAW DAY SPONSORS

LIBERTY SPONSORS

Kelley UUstal trial attorneys

nova soUtheastern University

JUSTICE SPONSORS

Berger singerman

haliczer Pettis & schwamm, P.a.

hane mcgee FoUndation

FREEDOM SPONSORS

catri, holton, Kessler & Kessler, P.a.

erenciK liBanoFF Brandt BUstamante &

oldstein, P.a.

hall & rosenBerg, P.l.

irschBaUm, BirnBaUm, liPPman & gregoire,

Pllc

ANNUAL MEETING & INSTALLATION DINNER

e Broward County Bar Association will host its Annual Meeting and Installation Dinner on urs-

day, June 20, 2013 at the Hyatt Regency Pier 66. We invite you to join us at the installation ceremonies

as Alan S. Fishman is sworn in as our 88th President, along with other Ocers and Directors. Also,

Marissa Pullano will be sworn in as President of the Young Lawyers Section with Ocers and Direc-

tors of the YLS.

Thursday, June 20, 2013

Hyatt Regency Pier 66

2301 SE 17th Street Causeway • Fort Lauderdale, FL 33316

5:30 - Cocktail Reception • 6:30 - Dinner

$85 - BCBA Members • $95 - Non-Members

Judiciary - Complimentary to those who are

current members of the BCBA

For information, contact Traci Lewis

at (954)832-3618 or e-mail traci@browardbar.org

For sponsorship opportunities, contact Bonnie Ross

at (954)817-7032 or e-mail bonnie@browardbar.org

Broward County Bar Association Barrister

June 2013 | 5

Broward County Bar Association

1051 SE 3rd Avenue

Fort Lauderdale, FL 33316

954.764.8040

letter from the president

Deborah FitzGerald

It is with mixed emotions that I

write my last President’s message. I

have been honored to serve as your

President this past year. The BCBA

is a vibrant voluntary bar association

that is doing great things with much

more to come. We are determined to

be the biggest and best voluntary bar

in the State.

Several times during my

presidency, I have been asked whether

my term has started, whether it has

ended, and several members even

have commented that they thought

I was the president a long time ago.

I take these comments to mean that

the president has little to do with the

success of the BCBA (certainly not me anyway) but rather it is the dedicated

work of the Executive Committee, the Board and its members. I can assure

you the BCBA is in capable hands in the coming years under the leadership

of incoming President Alan Fishman, President-Elect John Jordan, Treasurer

Robin Moselle, and Secretary Charles Morehead.

I am pleased to report to you that the BCBA is strong nancially. We have a

budget exceeding $ 750,000. Your entire Board works diligently to ensure we

use your dues and other contributions wisely. We have no mortgage. We have

a reserve account for unexpected contingencies. Every major expenditure is

reviewed critically before approved.

I am so proud and commend the work of our section chairs and members

who have taken their time and expertise this year to put on extraordinary CLE

programs, including ‘lunch and learn’ CLE’s that are very popular and often

sold out. Our programs provide cutting edge information at an affordable

price.

In the upcoming year, the BCBA will be hosting a Bench & Bar Convention

on October 18, 2013. Please put it on your calendar. The Convention is

expected to attract up to 1,000 participants. In the past we hosted this event

every 4 years but, ambitiously, are committed to hosting one every 2 years.

I encourage you to be part of this signature event as a sponsor, speaker, and

attendee. Go to our website for detailed information.

This year also has marked national tragedies, including the Newtown

shootings and the Boston bombing. These tragedies remind us of many

things, including, and importantly, the rule of law and our roles as lawyers in

living out our oath. As Justice Sotomayor once noted, the rule of law is the

foundation for all of our basic rights.

I look forward to seeing you at the Annual Installation Dinner on June 20

at Pier 66 as we celebrate our successes as an organization, install our new

ofcers and directors, say goodbye to our outgoing directors and bestow

awards for outstanding contributions.

Finally, I want to thank each one of you for your membership in the

BCBA. I hope you will continue to be involved. We need you.

2012 - 2013

BCBA Ocers

Deborah FitzGerald - President

Alan S. Fishman - President Elect

John G. Jordan - Treasurer

Robin S. Moselle - Secretary

Jordana Goldstein - Past President

Braulio Rosa - Acting Executive Director

BOARD OF DIRECTORS

NORTHEAST

Michael Kean

Thomas Oates

Jerome R. Siegel

NORTHWEST

Gary Landau

WEST

Charles A. Morehead, III

Gary Singer

Michael Vines

CENTRAL

Michael A. Fischler

Jose Izquierdo

Denise Jensen

Jay Kim

Michael Leader

Steve Lubell

SOUTHWEST

Kenneth P. Hassett

SOUTHEAST

Anita Paoli

Laura Varela

JUDICIAL REPRESENTATIVE

ACTING EXECUTIVE DIRECTOR

Braulio Rosa

Broward County Bar Association

1051 SE 3rd Avenue

Fort Lauderdale, FL 33316

954.764.8040

Broward County Bar Association Barrister

6 | June 2013

Berger Singerman

proudly supports

The Broward County Bar Association.

www.bergersingerman.com

Boca Raton Fort Lauderdale Miami Tallahassee

(561) 241-9500 (954) 525-9900 (305) 755-9500 (850) 561-3010

Clean, affordable, and made in America.

We’re powering Florida with American-made natural gas.

Broward County Bar Association Barrister

June 2013 | 7

Florida Bar

Board of Governors

17th Judicial Circuit

2012 - 2013 BCBA

Young Lawyers’ Section

OFFICERS

Meghan Clary - President

Marissa Pullano - President-Elect

Liza Smoker - Treasurer

Lindsay Corcoran - Secretary

Bart Ostrzenski - Past President

BOARD OF DIRECTORS

Lauren M. Alperstein

Todd Baker

Patrick V. Douglas

Aaron Jay Horowitz

Tobi Beth Lebowitz

Jennifer B. Hirschberg

Eric Rosen

Sara M. Sandler

Jonathan H. Stief

Kelley M. Vogt

Stacy R. Weissman

JUDICIAL REPRESENTATIVES

The Honorable Stacy Ross

The Honorable Cynthia Imperato

Broward County Bar Association

1051 SE 3rd Avenue

Fort Lauderdale, FL 33316

954.764.8040

letter from the young lawyers’ president

Meghan Clary

“Now it’s time to say goodbye to all

our company,” as the 2012-2013 Young

Lawyers Section scal year is coming

to an end this month. I am so extremely

proud of everything YLS has accom-

plished this year, which came to fruition

from the countless amount of hours de-

voted from our Board of Directors and

our community support. I have thorough-

ly enjoyed the last six years I have been

on this board and the friendships I have

made along the way. I know that I leave

this organization in great hands with in-

coming president Marissa Pullano. Not

only is Marissa genuinely compassion-

ate about helping our community, but she

also has the drive to lead this organization

in an unprecedented way. I look forward

to seeing everything she, as well as the

incoming 2013-2014 YLS Board of Directors, have in store for us this upcoming

year.

However, this scal year is not over yet, and we have a few more wonderful

events going on this month, starting with our 10th Annual Family Day on Sunday,

June 2nd. YLS will return to Pavilion #5 in T.Y. Park (3300 N. Park Rd, Hollywood,

FL) from 12:30 p.m. to 3:30 p.m. for outdoor fun, offering guests delicious food,

refreshments, ice cream, outdoor games and access to T.Y.’s Castaway Island Water

Park. Family Day is open to all, so please bring your co-workers, family and friends.

The cost to attend this event is $5.00 per child/adult (infants 12 months and under are

free). For more information and to RSVP for this event, please contact Family Day

Co-Chairperson Jon Stief at [email protected].

Thereafter, on Friday, June 14th at 8:30 a.m. in the Broward County Courthouse

Law Library, YLS will host its “Breakfast with the Judiciary.” This special event is

an opportunity for young lawyers to get acquainted with members of our bench in an

informal setting outside of the courtroom. This catered breakfast is complimentary to

the members of the judiciary and $25 for all non-judiciary. Space is limited, so please

RSVP to Eric Rosen, Esq. at esr@kulaw.com.

Before the close of our scal year, the Broward County Bar Association will

host its Annual Meeting and Installation Dinner on June 20th from 5:30 to 8:00 PM

at Pier 66. Congratulations to the incoming 2013-2014 YLS Executive Board (Presi-

dent - Marissa Pullano; President Elect – Liza Smoker; Treasurer – Tobi Lebowitz;

Secretary – Jeffrey Wank) and Board of Directors (Jamie Alman, Lauren Alperstein,

Todd Baker, Patrick Douglas, Anthony Quackenbush, Eric Rosen, Sara Sandler, Jon

Stief, Lindsay Timari, Cherine Smith Valbrun, Kelly Vogt and Stacy Weissman), who

will be installed during this event. The cost to attend the Installation Dinner is $85 for

BCBA Members and $95 for BCBA Non-Members, and you can RSVP with Traci

Lewis at traci@browardbar.org.

Thank you for allowing me the privilege of serving as your YLS President. I have

greatly enjoyed my tenure in ofce and urge anyone who has questions about join-

ing YLS, sponsorship opportunities and/or future events, to please contact incoming

YLS President Marissa Pullano at [email protected].

Walter G. “Skip” Campbell

954.763.8181

Adele Stone

954.925.5501

Lorna E. Brown-Burton

954.463.8322

Jay Cohen

954.763.6939

Broward County Bar Association Barrister

8 | June 2013

Buckingham, Doolittle & Burroughs, LLP

is pleased to welcome

5355 Town Center Road • Suite 900

Boca Raton, FL 33486

561.241-0414 • www.bdblaw.com

Mark R. Osherow

Kenyetta N. Alexander

to the Boca Raton Office

“Keeping children and families safe”

www.shanemcgeefoundation.org

Broward County Bar Association Barrister

9 | June 2013

On June 20, 2013, the

Broward County Bar

Association will install

Alan S. Fishman as its new

President at the Annual

Meeting and Installation

Dinner, which will be held

at Pier 66, 2301 SE 17th

Street Causeway, Fort

Lauderdale. Mr. Fishman

was born in Columbus,

Ohio and attended George

Washington University for

his undergraduate studies.

He graduated from The

Ohio State University Law

School in 1977 and was

admitted to the Ohio Bar.

Later the same year, he

moved to Florida, and was admitted to the Florida Bar

in 1978. He and Rhonda, his lovely wife of 16 years,

raised their four children in Coral Springs. Rhonda, in

addition to managing his law practice, is a busy real

estate agent.

Mr. Fishman practices law in the following areas:

criminal, family, and general civil. For most of his

career, he has been a sole practitioner or has been

part of small rms of two to three attorneys. This fact

has perhaps served as the impetus for Mr. Fishman’s

commitment and participation in the Broward County

Bar Association’s (BCBA) Small-Solo Practice Section

for the last ten years. Mr. Fishman has served on the

BCBA Board for the last 8 years. He also served as the

President of the North Broward Bar Association.

When asked what will dene his presidency, Mr.

Fishman said, “Our focus will be on answering the

question: ‘Why should I be a member of the BCBA?’”

Mr. Fishman understands that the primary purpose

of the BCBA is to serve its members. With that said,

Mr. Fishman will focus his energies on ensuring that

Alan S. Fishman To Be Installed as BCBA President

members are provided the

services that they deserve.

Some of his primary goals

are as follows:

• Practice Sections will

continue to be a big

focus, as they serve as

the backbone of the

BCBA.

o Relevant seminars will

continue to be offered

o Each Practice Section

will provide at least

one case law update

o Each Section will hold

at least one forum with

the administrative

judge of its division

• Every effort will be made to improve members’

access to the appropriate person at the Clerk’s Ofce

to deal with special situations.

• Continue to strengthen the connections between the

BCBA and the local law schools.

• Bring the BCBA to the members by holding more

events away from downtown: both social and

substantive.

• Facilitate our responsibility to provide Pro Bono

service by strengthening the relationship between

Legal Aid and the BCBA

• Launch a committee to explore the concept of

building a new Bar Center with useful facilities

for our members; a place where they can have

mediations, depositions, and client meetings before

and during court breaks.

The upcoming year promises to be active and positive

for the BCBA. Please join us at the Installation Dinner

to partake in the wonderful meal and festivities, and

don’t forget to say hello to Alan. See you there!

By Braulio Rosa

Broward County Bar Association Barrister

10 | June 2013

Nova Southeastern University

Shepard Broad Law Center

Congratulates

Judge Frank Orlando (Ret.)

Director of the Center for the Study of Youth Policy at NSU Law Center

who is celebrating 50 years

as a member of The Florida Bar.

The NSU Law Center also congratulates

the other members of The Florida Bar who are

celebrating their 50

anniversary.

Broward County Bar Association Barrister

June 2013 | 11

The form in which an employer

pays its employees is generally the

least of its payroll concerns, but

Florida law imposes specic require-

ments on how employees are paid.

Employers can pay their employ-

ees’ via several methods, including

orders, checks, drafts, notes, memo-

randums, payroll debit cards, or other

acknowledgments of indebtedness,

but regardless of the form of pay-

ment, it must be:

(i) negotiable and payable in

cash, on demand,

(ii) without discount,

(iii) at some established place of

business in the state,

(iv) the name of which must ap-

pear on the instrument or in

the payroll debit card issuing

materials, and

(v) at the time of issuance, and

for at least thirty (30) days

thereafter, the maker or draw-

er must have sufcient funds

or credit for its payment.

Fla. Stat. § 532.01. If an employer

fails to comply with any of the above

requirements and this failure results

in a reduction of an employee’s right-

ful wages, then the employer may

face exposure to liability for violat-

ing state and federal wage laws.

Payment by direct deposit is ad-

mittedly convenient and cost-effec-

tive, but utility does not trump an em-

ployee’s rights. Under Florida Statute

§ 532.04, an employer can pay its

employees via direct deposit only if

the direct deposit has been autho-

rized in writing by the employee

and if the employee has designated

in writing the nancial institution of

his or her choice in which such de-

posit is to be made. Not only must an

employer have consent, but it cannot

“terminate the employment of any

employee or payee solely for refus-

ing to authorize such direct deposit

of wages or salary.”

Accordingly, you cannot “re-

quire” an employee to receive pay-

ment of his or her wages via direct

deposit as a condition of employ-

ment. Because the statute requires

“consent,” it makes sense that for

the consent to be valid, it cannot be a

condition of employment. If it were,

the voluntariness of that consent

would necessarily be undermined.

Moreover, it frustrates theories of

statutory construction to argue that an

employer can require direct deposit

as a condition of employment. If this

were the case, the statute would not

call for “consent,” but rather for the

employer to give notice to its pro-

spective employees that direct de-

posit is the employer’s sole method

of payment. Finally, the statute also

provides for attorneys’ fees in favor

of the employee for any violation, so

employers should avoid compulsory

direct deposit.

In conclusion, you can certainly

offer direct deposit, but you cannot

require it or retaliate against an em-

ployee for failing to elect or consent

to receive payment by direct deposit.

Given an employer’s recourse to al-

ternative methods of paying its em-

ployees, the conservative approach

is to present the employee with the

“option” to be paid via direct deposit,

but to remain exible in the event the

employee does not elect or consent to

payment by direct deposit.

By: Catalina M. Avalos

Edited by: Megan L. Janes

Catalina M. Avalos is a

partner at the law rm

of Tripp Scott, P.A.

and focuses her

practice in the area of

employment and com-

mercial litigation.

She may be contacted

at 954 760-4912 or

by e-mail at cma@

trippscott.com.

Pay Attention to Florida

Wage Laws:

Mandatory Direct Deposit

is Not Worth It.

Broward County Bar Association Barrister

12 | April 2013

St. omas More Society of South Florida

24th Annual Red Mass, Reception & Dinner

Monday, June 17, 2013

Red Mass Celebrated by Archbishop omas G. Wenski & other Priests

5:30 P.M.

St. Anthony Catholic Church

901 N.E. 2nd Street

Ft. Lauderdale, Florida

Complimentary Reception - 7:00 P.M. to 8:00 P.M.

Dinner – 8:00 P.M.

Marriott Harbor Beach Resort

3030 Holiday Drive

Ft. Lauderdale, Florida

Guest Speaker: Hon. Adalberto Jose’ Jordan

U.S. Circuit Judge, Eleventh Circuit Court of Appeals

$ 95.00 per person

e Archbishop Edward McCarthy annual award will be presented at the dinner to

James E Zloch, Esq.

Limited Seating/Reservations only/Reservations Deadline is June 12, 2013

Mail Checks, made payable to “St. omas More Society”, to:

Donald A. Wich, Jr., Esq.

LAW OFFICES

Gateway Centre

2036 East Sample Road

Lighthouse Point, FL 33064

Professionalism Seminar – 3 Florida Bar CLE Credits

[Date to be announced]

FOR MORE INFORMATION ABOUT THE ST. THOMAS MORE SOCIETY AND THE RED MASS,

VISIT THE WEBSITE AT WWW.REDMASS.COM OR

Email [email protected]m

Broward County Bar Association Barrister

June 2013 | 13

Your Trusted Advisor Through Life

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ESTATE PLANNING

MEDICAID & ASSET

PROTECTION

PLAN NING

PROB ATE & TR UST

ADMINISTRATION

SPECIAL NEEDS

TRUSTS

VETERANS BENEFITS

ELIGIBILITY

LGBT & DOMESTIC

PAR TNER

ESTATE & LONG

TERM CARE

PLA NNI NG

GUARDIANSHIP &

GUARDIAN

ADVOCACY

ESTATE &

INCAPACITY

PLAN NING FOR

YOUNG AD ULTS

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

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Elder Law Issues for the Family Law Practitioner

Elder Law issues for the Trial Lawyer

Broward County Bar Association Barrister

14 | June 2013

Social Scene

1: (l to r): Board Member and Criminal Law Section Co-Chair Jeff Harris with Professor Emeritus Charles Ehrhardt of Florida State University and Board Member and

Criminal Law Section Co-Chair Ken Hassett at the CLE on Civil and Criminal Evidence which was given by Professor Ehrhardt. Over 500 people attended the event, which

was presented by the BCBA’s Criminal Law Section.

2: The BCBA hosted a successful Raising the Bar Family Law event with over 220 people attending. The event was presented by our Family Law Section. (l to r): Judge

Timothy Baily, YLS Board Member and Family Law Co-Chair Lauren Alperstein, Judge Arthur Birken, Judge Renee Goldenberg, Judge Merrilee Ehrlich, Chief Judge Peter

Weinstein, Judge Laura Watson, Judge Dale Cohen, and YLS Secretary and Family Law Co-Chair Lindsay Corcoran.

3: The BCBA hosted a successful Law Day Luncheon on May 3. W. George Allen (6th from the left) was the keynote speaker. Along with Mr. Allen are members of the

BCBA Board of Directors. (l to r) Board Member Jay Kim, Board Member Anita Paoli, Secretary Robin Moselle, Past President Jordana Goldstein, Treasurer John Jordan,

President Deborah FitzGerald, Law Day Chairperson Angel Petti Rosenberg, and President Elect Alan Fishman.

4: Judge Ilona Holmes, Brent Trapana, and Gordon James III.

Broward County Bar Association Barrister

June 2013 | 15

Social Scene

1: (l to r) Judge Ellen Feld, Andrea Kessler, and Judge Eileen O’Connor.

2: (l to r) Greg Ward, incoming YLS Board Member Tony Quackenbush, and Legal Aid/Coast to Coast Chairperson Morrie Levine.

3: First place winner in the high school category of the BCBA Law Day Essay Contest, Alecsa Pereira, a 9th grader from Cypress Bay High School along with YLS Board

Member and Essay Contest Chairperson Sara Sandler

4: YLS Judicial Recption; the YLS Board of Directors with Chief Judge Peter Weinstein, 4th from the right: (l to r)Board Member Jon Stief, Treasurer Liza Smoker, Board

Member Todd Baker, President Elect Marissa Pullano, Board Member Jeff Wank, President Meghan Clary, Board Member Tobi Lebowitz, and Board Member Stacy Weissman.

Broward County Bar Association Barrister

16 | June 2013

Upchurch Watson White & Max

M e d i a t i o n G r o u p

Serving Broward County, and all of Florida and Alabama, since 1996

(800) 264-2622 | www.uww-adr.com

Photo of Tree Tops Park in Davie from The South Florida Sun Sennel

Bridging the divideBridging the divide

Broward County Bar Association Barrister

June 2013 | 17

Lawyer practicing in the

Fort Lauderdale area

since 1974. She may be

contacted at 954-771-

0606 or by e-mail at

NLHappeals@aol.com.

For more information, see

NancyLittleHomann.

com.

Supreme Court Expands Use of Magis-

trates in Foreclosure Cases

Citing the limited availability of judi-

cial resources to address the residential

mortgage foreclosure case backlog, the

Supreme Court has amended Rule 1.490

by loosening the requirements for ap-

pointing general magistrates in such cas-

es, and by authorizing referral to those

magistrates “based on implied consent

of the parties,” while providing an op-

portunity for objection by the parties. In

re: Amendments to Florida Rule of Civil

Procedure 1.490, 38 Fla. L. Weekly S311

(Fla. May 9, 2013).

“Testimonial Discrepancy” Insufﬁcient

to Warrant Dismissal for Fraud on Court

if No Clear and Convincing Evidence of

Scheme by Plaintiff

The Fifth District reversed the dismissal

of a personal injury case where, although

the plaintiff changed her testimony from

one deposition to the next, there was no

clear and convincing evidence that she

had engaged in any scheme calculated

to interfere with the integrity of the judi-

cial system. The court reiterated that dis-

missal should be employed only “upon

the most blatant showing of fraud, pre-

tense, collusion or other wrongdoing.”

Gautreaux v. Maya, 38 Fla. L. Weekly

D1041 (Fla. 5th DCA May 10, 2013).

New Trial Order Must be Limited to Is-

sues Raised in Motion

An injured motorist sought a new trial

based on the inadequacy of the verdict

as to past and future medical expenses,

lost wages, and future pain and suffer-

ing. The trial court found it had erred

in allowing a defense doctor to testify as

to what he would have charged for the

plaintiff’s surgery, and in refusing to al-

low the plaintiff to explain why she had

not sought treatment for one of her in-

juries. It also noted the unrebutted evi-

dence of her need for future treatment.

However, the court ordered a new trial

on all damages, including the unchal-

lenged verdicts on past pain and suffer-

ing and permanency. The Second Dis-

trict reversed and directed that the new

trial be limited to the damages contested

in the motion. Rolon v. Fyock, 38 Fla.

L. Weekly D969 (Fla. 2d DCA May 1,

2013).

“Virtual Certainty” Standard for Employ-

er’s Tort Immunity Improperly Applied to

Action Against Fellow Employee

The Fourth District afrmed summary

judgment for the decedent’s employer

in a wrongful death action because the

evidence failed to support the elements

for proving that the employer engaged

in conduct “virtually certain” to result

in injury or death to the employee. It

reversed summary judgment for the de-

cedent’s fellow employee, however, be-

cause the trial court failed to address the

different standard provided by section

440.11(1) in such cases, namely that the

employee acted with willful and wan-

ton disregard or with gross negligence.

Reversal was required because the evi-

dence raised material issues of fact on

the claim or gross negligence of the fel-

low employee. Boston v. Publix Super

Markets, Inc., 38 Fla. L. Weekly D959

(Fla. 4th DCA May 1, 2013).

By Nancy Little Hoffman

Lawyer practicing in the

Fort Lauderdale area

since 1974. She may be

contacted at 954-771-

0606 or by e-mail at

NLHappeals@aol.com.

For more information, see

NancyLittleHomann.

com.

Broward County Bar Association Barrister

18 | June 2013

The Broward County

Bar Association

thanks its Annual Sponsors

The Arias Law Group

Bob Coury

Boss Certied Realtime Reporting

Broad & Cassel Attorneys at Law

Connections for Business

Crowe Paradis

Ellsley & Sobel Attorneys at Law

Florida Power and Light

Lexis Nexis

Pankauski Law Firm PLLC

Sabadell Bank

Swamp City Productions

USI Afnity

Bonnie Ross

BCBA Media Manager

bonnie@browardbar.org 

(954) 817-7032

Bench & Bar Convention

October 18, 2013

Broward County Convention Center

Fort Lauderdale, Florida

www.browardbenchandbar.org

HOLD THE DATE!

• Over1,000participantsexpected

• AdaylledwithEducational(CLE)Seminars

• LegalVendors

• Breakfast,Lunch,andCocktailReception

For information about sponsorship or an exhibition

table at the Broward County Bar Association’s 2013

Bench & Bar Convention, contact Robin Moselle, Con-

vention Co-Chairperson at (954) 315-0923, Charles

Morehead III, Convention Co-Chairperson at (954)

473-6605, or Braulio Rosa, Acting Executive Direc-

tor, at (954) 832-3620 at your earliest convenience.

Broward County Bar Association Barrister

June 2013 | 19

“If I don’t talk to the police, they’ll

think I’m guilty.”

“If your client is innocent, why

won’t he speak to us?”

“I’m sorry Jon, I know I should

not have talked to the FBI, but I re-

ally didn’t say all that much….How

long?....Oh, I don’t know, maybe

four hours.”

Real people, real conversations,

real consequences. So how can you

keep this from happening and why

must you counsel your clients not to

speak to agents or investigators with-

out consulting with an attorney rst?

The answer to the “why” question

is actually the solution to the “how”

problem. If you can explain to your

clients why even innocent people

should not speak to the authorities

without consulting counsel rst, you

may be able to convince them to fol-

low your advice.

First, the Supreme Court itself has

recognized that the right to remain

silent protects the innocent as well

as the guilty. In Ullman v. United

States, Justice Frankfurter wrote,

“[T]oo many, even those who should

be better advised, view this privilege

as a shelter for wrongdoers. They too

readily assume that those who invoke

it are either guilty of crime or commit

perjury in claiming the privilege.” In

fact, as Justice Clark later pointed

out, “[T]he privilege serves to protect

the innocent who otherwise might be

ensnared by ambiguous circumstanc-

es.”

Martha Stewart is the perfect ex-

ample of how an innocent person can

go to jail by speaking to the authori-

ties. Martha Stewart was suspected

of insider trading. However, in actual

fact she committed no such crime (or

at least not one that the government

could prove). During the course of

the government’s investigation, she

agreed to speak to the prosecutors.

Thereafter, Ms. Stewart, who had

been a stockbroker long before she

became a media mogul, spoke to the

prosecutors and told a b. The rest is

history. She was indicted for making

a false statement and sent to prison

for three months. Why did she lie?

Maybe because she thought she had

broken the law and was afraid that

a truthful answer could hurt her. Or,

maybe because she panicked and was

afraid the inquiry would lead to evi-

dence of a different crime. Even the

most sophisticated businessperson

can be undone by questions from an

experienced prosecutor. But lie she

did.

There are many situations where

defense counsel will agree to permit

a client to be interviewed by the au-

thorities. Such decisions are never

taken lightly and should only be

made after a thorough investigation

and a discussion of the risks and ben-

ets of such an interview. Moreover,

as demonstrated in the Martha Stew-

art case, counsel can only warn their

clients of the consequences of lying.

A client that thinks he or she can fool

a federal prosecutor and his agents is

in for a very rude surprise. Moreover,

in Ms. Stewart’s case, her attorneys

were present and there was no dis-

pute about what she said. But that is

the exception. Most encounters with

law enforcement happen at a person’s

home or ofce and they are never re-

corded. This creates huge problems

for defense counsel and great oppor-

tunities for the state.

Explain to your client that an agent’s

worldview is shaped by repeated en-

counters with criminals. Some agents

approach every interview with a pre-

existing notion that a suspect must be

guilty. Even if she is acting in good

faith, human beings are not recording

devices. The agent may misunder-

stand an answer to a question or 18

months later have to gure out what

she wrote on her report in handwrit-

ing she can barely decipher.

Finally, you need to explain to your

clients that no matter how friendly a

government agent seems, she is not

your client’s friend. She has a job to

do and will bury your client if need

be. Also, no matter how threatening

an agent seems, insisting on speaking

with counsel will not make any situ-

ation worse. If the client did some-

thing wrong, there is no way he can

talk himself out of the problem and

if the client did nothing wrong there

are about a million ways speaking to

the authorities can get the client in

hot water. Bottom line: The best way

to stay out of trouble is to keep your

mouth shut and get good counsel.

Don’t Let Your Clients Speak to the

Authorities

Without Counsel

By Jon May

Jon May is a partner in

the Roetzel and Andress

Business Litigation

Practice Group where

he focuses on complex

white collar litigation

and regulatory matters.

He may be contacted at

954.759.2737 or by email

at jmay@ralaw.com. For

more information see

www.ralaw.com.

Broward County Bar Association Barrister

20 | June 2013

Although I have only been a Bro-

ward County Trafc Hearing Ofcer/

Magistrate (THO) for less than two

years, I think I have already heard ev-

ery excuse imaginable from certain

lawyers and those representing them-

selves in trafc court. In Florida, a

THO has the power to accept pleas

from defendants, hear and rule upon

motions, decide

the guilt or inno-

cence of any per-

son charged with

a civil trafc in-

fraction, and adju-

dicate or withhold

adjudication in the

same manner as a

county court judge

under applicable

statutes and the

Trafc Court Rules

of Procedure. Un-

like other Magis-

trates that make

recommendation

that are reviewed

and ratied by the

Judges they assist,

THOs are Article

V Constitutional

Ofcers, meaning

their rulings are nal when rendered.

The majority of people who re-

ceive one of the 40,000 plus trafc

tickets issued monthly in Broward

County choose to enter the court sys-

tem; and do not use the administra-

tive choices provided by the clerk’s

ofce. Most defendants resolve

their cases at the Pre-trial session by

pleading no contest. Less than 3% of

defendants maintain their not guilty

pleas and proceed to trial, according

to Brenda Di Ioia, Chief Trafc Mag-

istrate/Hearing Ofcer for Broward

County.

Most defendants choose trial

because they just want a chance to

tell their story. However, those who

choose to represent themselves show

up with little understanding of the

charge, the law or court procedure.

As a result, listening to defendants at

trial sounds more like a therapy ses-

sions than a legal proceeding. We are

trained to allow defendants the time

to tell their side of the story. I make

a conscious effort in every case I

hear to allow this. Trafc court is for

many of the thousands of defendants

we see on a monthly basis the only

contact they ever have with the judi-

cial system. Therefore, as a represen-

tative of that system, it’s important

that THOs make it a fair and impar-

tial experience. Giving a defendant a

little time to “explain” is a necessary

part of that process.

Some defendant’s strategic de-

fenses are to hope that the ofcer

will not show or will not be prepared.

Others will become frightened by the

prospect of having to argue their case

before the court and at the last min-

ute will decide to change their plea

to “no contest.”

The remaining de-

fendants tend to

be the most pas-

sionate about their

cases. Sometimes

they get emotional.

A few get deant.

Most are still angry

over receiving the

ticket. But we lis-

ten to them all with

the same focus on

applying the law to

the facts presented.

Su r pris i ngly,

the most common

mistake made by

those representing

themselves in traf-

c court is admit-

ting guilt! Many

people concede to

driving over the speed limit, if only

“by a couple of miles per hour.”

However, they always deny going

as fast as the police ofcer said they

were going. Unfortunately, exceed-

ing the speed limit by any amount is

illegal. Therefore, what the defendant

believes is a winning error by the of-

cer is actually an admission which

results in a guilty verdict.

Another common mistake is con-

fusing an excuse with a legal de-

fense. The best excuses I have heard

Tales of a Trafﬁc Court Hearing Ofﬁcer

By Russell Thompson

Broward County Bar Association Barrister

June 2013 | 21

are: “my car can’t go that fast;” “my

speedometer wasn’t working;” “I

had to get to a bathroom quick;” “I

was just keeping up with the ow of

trafc;” or “everybody was speeding

and the cop only stopped me.” These

are not very persuasive arguments!

They are also not legal defenses.

However, a THO may consider them

as mitigating factors and take them

into consideration when determining

a penalty.

Although this article is not intend-

ed to be a review of trafc law, there

are dozens of actual legal defenses

to trafc tickets. For example, with

a speeding ticket, if an electronic or

mechanical speed measuring device

was used by the citing ofcer (radar,

laser, etc.), “the type of device and

the manufacturer’s serial number

must be included in the body of the

citation.” See Rule 6.445 of the Flor-

ida Rules of Trafc Court (2013). If

both are not listed, the ticket is sub-

ject to dismissal. The State of Florida,

through testimony of a police ofcer,

just like in other cases must prove

every element of the trafc offense

beyond a reasonable doubt. See Fla.

Stat. §318.14(6). The basis for nearly

every trafc prosecution lies primari-

ly on the police ofcer’s testimony as

to the details of the infraction and the

stop. The more one can establish that

the ofcer doesn’t remember where,

why, and how the violation occurred,

the more doubt one can raise as to the

accuracy of the ofcer’s testimony,

and the more likely the THO may nd

a reasonable doubt. Which ultimately

is good advice for any person who

is stopped for a trafc violation; do

not make yourself memorable! Of-

cers stop lots of people. Those who

are disrespectful, get out of the car

and walk toward the ofcer, decide

to reach for their concealed weapon

to put it on the seat before the ofcer

approaches them, or nearly run over

the ofcer’s foot when driving off

are sure to make the ofcer write lots

of notes and recall the details of the

incident with uncanny clarity at the

time of trial.

Just as in other areas of the law, to

be successful at trial in trafc court

you must come prepared; armed with

an understanding of the charge, the

law and knowledge of the facts. If

you are not going to put the work

into preparing your defense and still

want a positive outcome a good traf-

c ticket defense lawyer is not a bad

idea either.

Congratulations

to Russell M. Thompson!

Broward Lawyers Care (BLC) would like to announce Russell M. Thompson as the Attorney of the Month for

May, 2013. Mr. Thompson, originally from New Jersey, graduated from the University of Miami Law School and

has been practicing for almost thirty years. Today, he focuses his efforts on recovering damages for anyone injured or

killed through the negligence of others.

Aside from his private practice, Mr. Thompson has served the legal profession and the community throughout the

years, pledging countless hours for the underprivileged. He has taken on 16 pro bono cases since he began volunteer-

ing with BLC.

Currently, Mr. Thompson is handling cases involving veterans’ discharge upgrades,

family law issues, as well as serving as a voluntary attorney ad litem for the Tracey

McPharlin Pro Bono Dependency Project.

Russell Thompson is an indispensable asset to our community, dedicating a con-

siderable amount of time and energy to help those less fortunate in the Mission United

Veterans Project, the Tracey McPharlin Pro Bono Dependency Project, and BLC cases.

Broward Lawyers Care is privileged to have attorneys like Mr. Thompson who not only

commit to provide exemplary representation but also to achieve equal justice for all.

To get involved with BLC and to take cases, visit www.legalaid.org/broward/bro-

ward-pro-bono-project.

p r o b a t e l i t i g a t i o n

s t a t e - w i d e

c o n t i n g e n c y f e e s

( 8 5 5 )

W I L L - 1 2 3

www.pankauskilawfirm.com

( 5 6 1 ) 5 1 4 - 0 9 0 6

L A W F I R M

P. L. L. C.

the hiring of a lawyer is an important decision that should not be based solely upon advertisements. before you decide, ask us to send you free written

information about our qualifications and experience. west palm beach.

p a n k a u s k i

Broward County Bar Association Barrister

June 2013 | 23

www.BossReporting.comwww.BossReporting.com

calendar of events

PRSRT STD

U.S. POSTAGE

PAID

FT. LAUDERDALE, FL

PERMIT NO. 2998

1051 S.E. Third Avenue

Fort Lauderdale, FL 33316-5010

954.764.8040

www.browardbar.org

PRSRT STD

U.S. POSTAGE

PAID

Ft. Laud, FL

Permit # 882

June

12:30 pm – 3:30 pm

YLS 10th Annual Family Day

Description: Bring you family, friends

and co-workers to this outdoor

catered event. $5.00 per person (12

months and under free). Castaway

Island water access provided

Venue: T.Y. Park, Pavilion 5

Address: 3300 N. Park Rd, Hollywood,

Contact: RSVP to Jon Stief at jon@

haberstief.com

12:00 pm - 1:30 pm

Construction Section CLE Luncheon

“Florida Statute 489”

Venue: Broward County Bar Association

Address: 1051 SE 3rd Avenue, Fort

Lauderdale

Contact: Gavin Caddy at 954-620-5000

or gcaddy@theconstructionlawyers.com

5:30 pm - 7:30 pm

B’Nai Brith Justice Unit Happy Hour

Description: One Free Drink to

Members Appetizers will be provided

Venue: American Social

Address: 721 E. Las Olas Boulevard,

Fort Lauderdale

Contact: Jared Brown at JBrown@

sao17.state.ﬂ.us

8:00 am - 9:00 am

Mentor/Mentee Breakfast

Description: Speaker: Judge Birken

Topic: Judicial Pet Peeves: What not to

Venue: BCBA

Address: 1051 SE 3rd Avenue, Fort

Lauderdale

Contact: Braulio Rosa at braulio@

browardbar.org

browardbar.org/calendar

8:30 am

YLS Breakfast with Judiciary

Description: Catered breakfast for

young lawyers and the judiciary;

$25.00 per person (complimentary to

judiciary)

Venue: Broward County Courthouse

Law Library

Contact: RSVP to Eric Rosen at esr@

kulaw.com

10:30 a.m.

Description: FREE Westlaw Next

Training

Venue: Broward County Law

Library 1st Floor, North Wing, Main

Courthouse

1 FREE CLE CREDIT

Contact: (954) 831-6226

Bench-Bar Committee Meeting

Venue: BCBA Ofﬁce

Address: 1051 SE 3rd Avenue, Fort

Lauderdale

Contact: Traci Lewis at 954-832-3618

or traci@browardbar.org

5:30 pm - 8:00 pm

BCBA Annual Installation Dinner

Description: $85 BCBA Members, $95

Non-Members, Judiciary: N/C to those

that are current BCBA Members, Free

Valet & Self Parking Meal Choice: Beef,

chicken, ﬁsh, vegetarian

Venue: Pier 66

Address: 2301 SE 17th Street

Causeway, Fort Lauderdale

Contact: Traci Lewis (954)832-3618 or

traci@browardbar.org

browardbar.org/calendar

12:00 pm - 1:30 pm

“Meet the 17th Circuit Probate Staff

Attorneys” CLE Luncheon

Description: Speakers: Elizabeth

Robbert and Corey King $15 BCBA

Members $25 Non-Members Includes

Lunch and CLE

Venue: BCBA Conference Center

Address: 1051 SE 3rd Avenue, Fort

Lauderdale

Contact: Traci Lewis at (954)832-3618

or traci@browardbar.org

browardbar.org/calendar

12:00 pm - 1:30 pm

West Broward Section Luncheon

with Judge Mark Speiser

Description: $25 $30 at the door

Venue: Plantation Preserve Golf

Course

Address: 7050 W. Broward Boulevard,

Plantation

Contact: Traci Lewis at (954)832-3618

or traci@browardbar.org