Summati
The
Escambia/Santa Rosa Bar Association
n
December 2015
Volume 4 / Issue 4
Protecting LGBTQ in Foster Care page 16
The Judas Dilemma Leave No Veteran Behind • PHS Law Academy Replenishing Shortages in the Trust Account What Are Living Wills & Other Advanced Directives? December 2015 www.esrba.com The Summation 1
Inside
The
Summation
8. News From the Court: Leave No Veteran Behind 10. Did You Know? 11. Thank You, Judges Jones and Terrell 12. Ask a Lawyer 16. Protecting LGBTQ in Foster Care Escambia-Santa Rosa Bar Association 216 South Tarragona Street, Suite B Pensacola, FL 32501 Phone: 850-434-8135 Fax: 850-436-8822 email: esrba@esrba.com Lawyer Referral Service: 850-434-6009 Executive Director Michael Doubek mike@esrba.com Editor Patricia Buchanan Wright patriciabwright@aol.com Published quarterly by the Escambia-Santa Rosa Bar Association as a service to its membership. Any article herein may be reproduced provided credit is given both to The Summation and the author of the article. Articles appearing in The Summation are not to be construed as official expressions of the views of the Escambia-Santa Rosa Bar Association. Official positions are expressed only by formal resolutions adopted by a majority of the membership and will be so designated when published. Editorials are expressions of the opinion of the Editor. Due date for all advertisements, articles, and announcements is the first of the month for the issue you wish to advertise in. Address all editorial correspondence to the Escambia-Santa Rosa Bar Association office. For all inquiries concerning advertising rates contact Ballinger Publishing. “The Summation Committee is dedicated to providing a publication to the legal community which contains articles that are accurate, informative, entertaining, educational, relevant and timely.” Summation Committee If you have any comments or suggestions about The Summation, please feel free to express them to any of the committee members. If you would like to join the committee, please call the Bar office at 434.8135. Benjamin Stevenson Brooke Jones Clara Smith Gerald McGill Paula Walker Caroline Peterson Tami Stokes Lisa York Debra Bass Susan Woolf Carrie Cromey Jason Boatwright
2 The Summation www.esrba.com December 2015
18. Replenishing Shortages in the Trust Account 20. Robert Heath’s The Judas Dilemma 23. Young Lawyers and Access to Services 24. Pensacola High School Law Academy 26. Photos
In every issue 3. From the President 4. Board of Governors 5. New Members / Announcements 6. Chief’s Corner 14. Judge’s Preferences 22. The Bottom Line 30. News from the Clerk 31. Classifieds / Calendar
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From the President Happy Holidays By MATTHEW HOFFMAN
Dear Fellow ESRBA Members:
Summation Weekly, you will be directly supporting the Association, as a portion of the revenues gener-
As the holiday season approaches, I would like
ated will go directly to the Association. In addi-
to extend a special thanks to the Executive Com-
tion, the publication charge is less than competing
mittee, Mike Doubek, Michele Kelley, and the As-
publications, and will save your clients money.
sociation’s staff for making 2015 so successful. I would also like to extend a special thanks to each
The Summation Weekly is published every
of the Association’s members for your participa-
Wednesday, and all publication requests must be
tion and support of the Association and its ongoing
received by 4 pm on the preceding Friday. For
activities.
instructions and additional information for submitting publication requests to The Summation Weekly,
There are many new exciting opportunities in
please refer to the Association’s web site at www.
the coming year, and I am hopeful 2016 will be
esrba.com. If you have questions regarding The
just as successful. As you may be aware, the Asso-
Summation Weekly’s compliance with applicable
ciation’s weekly publication, The Summation Weekly,
statutory requirements to accept legal notices for
can now accept legal notices for publication.
publication, please do not hesitate to reach out to me or Mike Doubek.
I would urge you to please consider The Summation Weekly for all your legal notices in Escambia
I hope you will continue to join us at the Asso-
and Santa Rosa counties. The Summation Weekly is
ciation’s monthly meetings, and participate in the
owned by the Association, but the Association has
Association’s Law Week activities. Thank you for
partnered with Ballinger Publishing to publish The
your continued support. I hope you each have a
Summation Weekly. By placing legal notices in The
safe and happy holiday season.
December 2015 www.esrba.com The Summation 3
Board of Governors
Report from
The Florida Board of Governors By STEPHEN ECHSNER
The Florida Bar Board of Governors met on Dec. 4, 2015. The major actions of the Board and the reports received included: The board unanimously voted that The Florida Bar opposes term limits for judges at any level of Florida’s state court system. The position is in response to pending legislation for a constitutional amendment to impose term limits on Florida’s appellate judiciary. The 2016 legislative session begins on Jan. 12. To review The Florida Bar’s legislative positions, legislation of interest to the legal profession, weekly session updates, information about Bar advocacy and other links for those interested in the legislative process, please visit www.floridabar. org/legislativeactivity. A recommendation by the Code & Rules of Evidence Committee was approved by a vote of 33 to 9 that the Supreme Court not adopt the amendments to Florida Statutes §90.702 and §90.704, as amended by Chapter 2013-107 (regarding the Daubert standard), as rules of evidentiary procedure to the extent they are procedural. All Florida Bar members and legal organizations were given the opportunity to provide feedback on the matter to the Board by Nov. 15 for review prior to the vote; all feedback and letters received are posted at www. floridabar.org/daubertfrye along with additional information including the board materials and the committee’s reports. The Code & Rules of Evidence Committee submits three-year cycle reports with recommendations regarding procedural adoption of statutory substance amendments to the Code. The next cycle report is due to the Florida Supreme Court by Feb. 1, 2016. The Board of Governors receives and must vote on all matters prior to submission to the Supreme Court pursuant to Florida Rule of Judicial Administration 2.140(b). President-elect William J. Schifino, Jr., announced that committee preference forms are now available on the Bar’s website and must be submitted by Jan. 15. Florida Bar members are encouraged to request appointment to Bar committees to address the many challenges facing the legal profession. For more information on the process, the Dec. 1 Florida Bar News includes details and instructions.
4 The Summation www.esrba.com December 2015
The Florida Bar Wm. Reece Smith, Jr. Leadership Academy, a multi-session training program designed to assist a diverse and inclusive group of lawyers in becoming better leaders within the legal profession and their communities, is accepting applications for the 2016-17 class. Applications are due Jan. 15; information on the program and the application form are available online at www.floridabar.org/leadershipacademy. The Board Technology Committee announced that a special issue of The Florida Bar Journal will be published in January focusing on technology’s impact on the practice of law, and it will be available in an online dynamic digital edition at www.floridabar.org/journal as well as in print. In this issue, a diverse group of authors covers a variety of subjects of interest and concern facing the profession relating to technology. The goal of the special issue is to awaken the thoughts of Florida lawyers to the changing landscape and to encourage using collective wisdom to guide the practice of law through the technological gauntlet. A proposed amendment to the Rules of Judicial Administration was approved with joint amendments of appellate and criminal rules allowing limited representation in cases and defining who is the lead attorney in cases and how associate and covering attorneys can appear in and leave cases. Also approved were proposed amendments to Family Law Rules that would end all references to Civil Procedure Rules. The proposed amendments will be filed with the Florida Supreme Court. Florida Rules of Court Procedure, proposed amendments, guidelines for rules submissions and rules of court procedure opinions are posted on the Bar’s website. A proposed amendment to Bar Rule 4-1.5 was approved on using lien modification attorneys at the end of a personal injury or wrongful death case to handle negotiations over health liens. Under the proposed amendment, which must be approved by the Florida Supreme Court, those attorneys could be hired in extraordinary cases with disclosure and written approval of the client and with a judge’s approval. The judge would also be authorized to review and adjust the fees both of the main tort attorney and attorneys handling the liens.
New Members Elizabeth W. Aghayan Smith, Sauer & DeMaria 510 East Zaragoza Streee Pensacola, FL 32502 (850) 434-2761 e.aghayan1@outlook.com Christine H. Arnold The Law Office of Christine H. Arnold, P.A. 7150 Tippen Avenue, #10280 Pensacola, FL 32504 (850) 529-1993 carnold@christinearnoldlaw.com Michael C. Bixby Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. 316 South Baylen Street, Suite 600 Pensacola, FL 32502 (850) 435-7161 mbixby@levinlaw.com Ryan M. Cardoso Cardoso Law Offices, PLLC 121 West Garden Street Pensacola, FL 32502 (850) 324-8956 ryan@cardosolawyer.com Megan T. Crenshaw Meador, Johnson & Bushnell, P.A. 900 North Palafox Street Pensacola, FL 32501 (850) 435-9919 megan@meadorjohnsonlaw.com Monica L. Daniels Office of the State Attorney 190 West Government Street Pensacola, FL 32503 (850) 595-4761 monicalenoradaniels@gmail.com Matthew T. Davidson Clark, Partington, Hart, Larry, Bond & Stackhouse 125 West Romana Street, Suite 800 Pensacola, FL 32502 (850) 434-9200 mdavidson@cphlaw.com
Jeff R. Gaddy Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor, P.A. 316 South Baylen Street, Suite 600 Pensacola, FL 32502 (850) 435-7054 jgaddy@levinlaw.com Charles R. Hall 509 New Warrington Road Pensacola, FL 32506 (850) 341-7880 Charleshall123@att.net Hannah E. McCullin Kubicki Draper, P.A. 125 West Romana Street, Suite 550 Pensacola, FL 32502 (850) 434-0003 hem@kubickidraper.com Travis M. Morock Carver Darden 801 West Romana Street, Suite A Pensacola, FL 32502 (850) 266-2308 morock@carverdarden.com Thomas P. Rechtin Roppo / Molandes, PLLC 8 North Coyle Street Pensacola, FL 32502 (850) 607-6773 tom@roppomolandes.com Vito M. Roppo Roppo / Molandes, PLLC 8 North Coyle Street Pensacola, FL 32502 (850) 607-6773 vito@roppomolandes.com Cameron C. Townes Clark, Partington, Hart, Larry, Bond & Stackhouse 125 West Romana Street, Suite 800 Pensacola, FL 32502 (850) 208-7031 ctownes@cphlaw.com
Announcements Judge Thomas V. Dannheisser and Judge Darlene F. Dickey to the Circuit Bench On Tuesday, Dec. 1, Governor Rick Scott announced the appointments of Judge Thomas V. Dannheisser and Judge Darlene F. Dickey to the First Judicial Circuit Court. Judge Dannheisser, 59, of Pensacola, has served as an Escambia County Court judge since 2010. He previously served as the Santa Rosa County Attorney from 1986-2010, and as an Assistant County Attorney at the Escambia County Attorney’s Office from 1983-1986. Dannheisser also served as an Assistant State Attorney for the Fifth Judicial Circuit from 1982-1983, and as an Assistant State Attorney for the Twelfth Judicial Circuit from 1981-1982. He received his bachelor’s degree and law degree from the University of Florida. Dannheisser fills a vacancy created by the resignation of Judge Terry D. Terrell. Judge Dickey, 45, of Molino, has served as an Escambia County Court judge since 2012. She previously served as the General Counsel of the Escambia County Sheriff’s Office from 2006-2012. She also practiced with Bozeman, Jenkins & Mathews, P.A. from 2003-2005. Dickey began her legal career as an Assistant State Attorney for the First Judicial Circuit in 2000. She received her bachelor’s degree from the University of West Florida and her law degree from Florida State University. Dickey fills a vacancy created by the resignation of Judge T. Michael Jones. Congratulations to Jason A. Waddell The Escambia/Santa Rosa Bar Association would like to congratulate Jason A. Waddell on receiving The Florida Bar President’s Pro Bono Service Award for the First Judicial Circuit. The award is given to an outstanding attorney for each of the state’s 20 judicial circuits and to an outstanding attorney among the out-of-state Florida Bar members. Jason is a Board Certified Elder Law attorney and practices with his wife Amy at Waddell & Waddell, P.A. December 2015 www.esrba.com The Summation 5
Chief’s Corner
Embracing Change By CHIEF JUDGE LINDA L. NOBLES
Greek philosopher Heraclitus said, “Change is
In Escambia, I will accept assignment to Family
the only constant in life.” As 2015 draws to a close
Division M. Judge Jennie Kinsey will be assigned to
and we look forward into 2016, the First Judicial
a new combined division, which will be half Fam-
Circuit will see the constant of change.
ily Division P and her current Criminal Division D. Judge W. Joel Boles will be assuming General Divi-
Nov. 30, 2015, will bring with it the retirement
sion K, which will include all “tobacco” litigation.
of Judge Terry D. Terrell after 23 years of service. On Dec. 31, 2015, Judge T. Michael Jones will retire after 35 years of service. The list of committees,
As I write this article, the Governor has interviewed judicial candidates for appointment to the
appointments, and accolades attributed to these two First Judicial Circuit but has not yet made a decimen are absent from this brief article as they are too
sion. These candidates will fill the vacancies left
numerous to list. However, let there be no mistake
with the retirement of judges Jones and Terrell.
that both have been ever present in the education
Assignments to General Division C and General Di-
and encouragement of members of the bar and
vision E in Escambia County will be evaluated once
members of both the local and state judiciary.
appointments are made by the Governor.
It has truly been my privilege to work with these
While change is often accompanied by confusion
fine, dignified, outstanding judges. While I wish
and can be uncomfortable, it is also the perfect op-
them both a happy retirement, I eagerly await their
portunity to implement new ideas and realize new
return to service as Senior Judges.
perspectives. I will sorely miss my fellowship with judges Jones and Terrell; however, I look forward
On Jan. 4, 2016, the judges in Escambia and
to the opportunities that will come with two new
Santa Rosa will see change. Judge John Miller will
circuit judges to the Escambia County bench. As
transfer to Escambia County from Santa Rosa Coun-
we move forward, we shall not succumb to fighting
ty. He will be assigned to General Division J held
change; rather, we shall focus our energy on em-
currently by Judge Ross Goodman. Judge Goodman
bracing the new.
will transfer to Santa Rosa County to preside in Judge Miller’s former Division C. 6 The Summation www.esrba.com December 2015
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888.777.5105 December 2015 www.esrba.com The Summation 7
News From the Court Leave No Veteran Behind: Escambia County Veterans Court Aims to Reduce Recidivism
The Escambia County Veterans Treatment Court Pro-
tion between all stakeholders in the process.
gram is a specialized court established to serve “eligible veterans� involved with the criminal justice system.
The target populations include active duty, retired,
This program is a coordinated effort to integrate speci-
and military veterans who are justice involved with
fied treatment and services to assist veterans struggling
misdemeanor and/or allowable felony non-violent crimi-
with behavioral, substance abuse and/or mental health
nal offense(s). The Veterans Treatment Court will offer
disorders including traumatic brain
services to veterans who have been charged
injury (TBI) and post-traumatic stress
with eligible criminal offenses an opportu-
disorder (PTSD), as a result of trauma
nity to complete probation utilizing treat-
experienced while serving in the com-
ment programs designed to address under-
bat/war zone.
lying issues which may have led to criminal behavior, in conjunction with the Veterans
The Escambia County Veterans
Administration and other service providers.
Treatment Court was established All participants are required
under the direction of The Honorable Edward P. Nickinson, III, and it accepted
The Honorable Edward P. Nickinson, III, who helped establish the Escambia County Veterans Treatment Court
to appear for frequent court reviews before the presiding
the first participant in July
judge, similar to the procedures
of 2015. The program is
used in drug court. The pro-
a voluntary 12 to 18 month program, which promotes
gram will also use mentors to work with the participants
sobriety, recovery, restoration and stability through a co-
throughout the process. The goal of the program is to
ordinated response involving cooperation and collabora-
reduce the recidivism rate and promote public safety.
8 The Summation www.esrba.com December 2015
December 2015 www.esrba.com The Summation 9
Did You Know? Retired Chief Judge John P. Kuder: Founder and Patron of a School in India By PATRICIA WRIGHT capacity to educate up to 500 children. There are non-resident children who come from nearby villages to be educated at the school.
There are more than one million children living on the streets in India. Judge Kuder’s school has been a safe harbor, a place of education and a place of belonging, as well as a home for food, shelter, clothing and other necessities for the abandoned and orphaned street children who are fortunate to be there. This is not an orphanage, but these children have their physical, social, mental and health needs met there. There are rewards for serious study and dedication to learning. In India, a student must successfully pass an examination administered in the 10th grade. The results of that exam determine whether the student will have the advantage of a college education or go off to trade school. Judge Kuder’s school has helped 11 young people attend college with two college graduates. Nineteen students are in high school, and the rest are in primary/middle school. These ambitious students will go on to become doctors, engineers, teachers and scientists in their country. The school started with 20 such children and now houses 65. The inception of this school is interesting. Judge Kuder’s wife Susan is also an attorney, and now holds a doctorate in Theology. Susan had lived in India and observed first-hand the devastating sight of seeing children treated as non-persons, subsisting on the streets, or worse. A few months ago, Judge Kuder observed a child eating garbage with pigs. The child was about five years old, and was rescued from this filth and taken to the school. Another sibling group was found living in a train station bathroom—their only “home.” These kind of horrific recounts go on and on. The Kuders virtually built a campus. There are dormitories where the students reside when not in class. The dormitories can house up to 120 students. There are classes through the eighth grade, and the campus includes athletic fields. The campus encompasses 20,000 square feet with 10,000 square feet allocated for living space. The students have access to a cafeteria where they are fed healthy, filling and nourishing meals. While there are 65 children now, the facility has the 10 The Summation www.esrba.com December 2015
A new school is now under construction north of the current site, near an economic center. The current facility is subject to flooding, and India is notorious for monsoons. The school is near the Bay of Bengal, and hurricanes affect the area regularly. Each major climate event means that the students have to be moved off-campus to higher ground. The school endured the devastation of the tsunami the day after Christmas a few years ago. That event caused the students to take shelter on the third floor of the dormitories, where they spent two weeks in two dormitory-style bedrooms. In emergency health matters, the nearest hospital is two and a half hours away. The roads are narrow, and usually in disrepair. Transportation is by way of a Land Rover and two motorcycles, all of which were donated. It takes $55 per month to educate, sustain, clothe and feed one child. People who are interested in making a contribution or making a commitment are welcome to do so. Kuderfoundation.org is their web site. Pictures of the children, activities and statistical information can also be found on the web site. The important thought to take away from this is that the children are most concerned with basic survival—how to live, eat and sleep. They take one day at a time. They have spent so much of their young lives in situations we cannot even imagine. They are the real heroes here. If it were not for the efforts and dedication of the Kuders, we would not have the opportunity to know of the circumstances of the children, and to be able to do something about it. As Judge Kuder has said: “We are not only changing lives, we are saving lives….. (when) I can look into crying eyes and say ‘Come with me’.”
Patricia Buchanan Wright is a Florida Bar Board Certified State & Federal Government and Administrative Practice attorney. She works with the James Turner Law Firm in Milton, Fla., and serves legal needs in juvenile and most family law matters.
Thank You, Judges Jones and Terrell Circuit Judge T. Michael Jones, Florida First Judicial Circuit’s most senior judge, will retire on Dec. 31 after 35 years on the bench. Jones was elected county judge in Okaloosa County 1981 and served there for eight years. During his tenure, he helped establish the area’s Citizen Dispute Settlement Program, a mediation program that helps settle about three quarters of the area’s small claims disputes. In 1989, he was appointed as circuit judge by Gov. Bob Martinez. He’s since sat on several committees and bodies dedicated to the betterment of courts and court services. In the courthouse, Jones is a compass and example for other judges, his peers said.
First Judicial Circuit Judge Terry Terrell will be retiring Nov. 30 after 23 years on the bench, including a six-year stint as chief judge, where he shepherded the circuit through judiciary shortages and a growing caseload. Terrell began his legal career by serving 13 years as chief assistant public defender. He was appointed to the circuit court in 1992 by Gov. Lawton Chiles. Terrell was chief judge from 2009 to 2015. Terrell’s peers credit his leadership and planning for helping them to manage an increased caseload, especially in high profile tobacco cases.
December 2015 www.esrba.com The Summation 11
Ask a Lawyer What are Living Wills and Other Advance Directives? By STEVEN E. QUINNELL & STEPHANIE Q. NAYLOR Let’s say you are laying in a hospital bed, unresponsive and terminally ill. The decision has to be made: To be kept alive with feeding and water tubes, or not? Let’s further say that you previously mentioned to your family that you “don’t want to be kept alive with tubes,” but nothing more. And let’s further say that your spouse now wants to prevent the installation of the tubes or remove the tubes, but your children do not. What happens? These were basically the facts in the Terri Schiavo line of cases. Our recommendation: You execute various advance directives, to make your wishes crystal-clear, while you are still in your right mind and able to do so. No one wants his or her family to fight. Plus, the forms are cheap and easy, and will be enforced. 1.Determining your health care, including future health care, is a basic right. See the Florida Supreme Court case In re Guardianship of Browning, 568 So.2d 4 (Fla. 1990); also Chapter 765, Florida Statutes, and Florida Probate Rule 5.900. 2. An “Advance Directive” is a written or oral statement giving instructions for health care, now and in the future. The key documents are: ·
A living will
·
Designation of health care surrogate
·
Do-not-resuscitate order (DNRO)
·
Health-care proxy
3. Remember: While you are still awake and competent, you are always in charge of your own health care. The advance directives are intended to cover those periods where you are mentally or physically unable to give instructions or make decisions. If you are still sufficiently competent to make your own decision, then you are still the boss. In fact, you can still change your mind, or revoke any previous papers you may have signed. 4. Living Will: Typically this is a one-page paper, signed before two (2) witnesses (no notary required), stating that IF ALL of the following are true, then you order that all artificial life support shall be stopped or withdrawn:
because the legislature has debated whether food and water constitute “artificial” life support. See again the Terri Schiavo case, where Ms. Schiavo was breathing on her own, but needed food and water tubes to survive. This case resulted in 15 year legal battle between family members. 5. Designation of Health Care Surrogate: Also known sometimes as a medical power of attorney, this is again typically a one-page paper, signed before two (2) witnesses (no notary required), where you name the person who shall make future health decisions for you, in the event you become mentally disabled. 6. Do Not Resuscitate Order: A DNRO is a yellow sheet of paper, signed first by your doctor, then also by your or your representative (such as Health Care Surrogate, or court-appointed Guardian), when you are terminally ill. It orders that no CPR or other life-saving techniques shall be administered even if you are choking, having a heart attack, etc. This is usually done only in the last few months of a client’s life, when keeping the client alive would not be humane. It is displayed prominently at the client’s room or home to make sure EMTs see it. · You can obtain a copy of a DNRO form from most hospitals and nursing homes, and the Dept. of Health (or its web site). 7. Health Care Proxy: When the client is mentally incompetent, and does not have any Living Will, or Designation of Health Care Surrogate, then the client’s hospital or nursing home and simply designate some responsible person as the Proxy to make various health care decisions within that facility. Sec. 765.401, Florida Statutes. 8. Conclusion: There is absolutely no reason for you not to have a signed Living Will, and a Designation of Health Care Surrogate. The forms are simple and maybe even free. If you ever wind up in that hospital or nursing home bed, and the doctors and your family are debating whether to insert (or keep) feeding or water tubes, you certainly don’t want to become another Terri Schiavo case. Write down your instructions now, and let everybody know exactly what you want done in the future. This information is not intended to be a substitute for obtaining legal advice from an attorney. No person should act or rely upon any information in this article without seeking the advice of a qualified attorney.
· You are mentally unable to give your own instructions or informed consent; AND · You are terminally ill, in a persistent vegetative state, or in an end-state condition (such as advanced Alzheimer’s Disease); AND · Your doctor and one other doctor both say you are not going to come out of it. Note: Of course, if you instead want to be kept alive at all costs, then you should say so. You are always welcome to write out more details. Note: Feeding and water tubes should be specifically mentioned,
12 The Summation www.esrba.com December 2015
Steven E. Quinnell
Steven E. Quinnell and Stephanie Q. Naylor are with the Elder Law Firm in Gulf Breeze. Steven has been Board Certified in Elder Stephanie Q. Naylor Law by the Florida Bar since 2001. The Elder Law Firm assists people with legal issues related to special needs, aging and death. With over 25 years of experience, they are one of the most established elder law firms on the Gulf Coast.
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ReTuRn of THe KinG By Dawn Gresko Chris Thomas King, known as CTK or the King of 21st Century Blues, is a Louisiana-based blues musician and actor who gained recognition for his roles in O Brother, Where Art Thou? and Ray. He has sold over 10 million records in the US and his music has won “Album of the Year” at the Grammy and Country Music awards. Don’t miss CTK, who will be joining the Downtown Crowd at Vinyl Music Hall with bass player Danny Insante and drummer Jeff Mills, at the Christmas Show on Dec. 12. What was it like to be the son of legendary blues musician, “Rockin’” Tabby Thomas? I was steeped in the culture of blues because of my dad. I probably wouldn’t be playing music today if my dad had not opened Tabby’s Blue Box, his blues club or juke joint, when I was still a young teenager in 1979. However, once I did forge a career playing the guitar and performing the blues early on in my formative years, it was a little frustrating to be known as Tabby’s son. It took awhile to find a way out of his shadow. Tabby’s Blue Box in Baton Rouge attracted blues lovers from around the world. Were there any performers you saw there who influenced your music? I played there every weekend for about ten years straight. My influences were all of the older Louisiana blues musicians who played together and hung out often at the Blue Box, which was really like the blues “social club” of
By Josh Newby
CAll us About plACiNg your lEgAl NotiCEs
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Seeking only a better community and greater opportunity for all, the individuals and organizations who have given selflessly in West Florida have pushed this community through hurdles and challenges and on to better tomorrows. Much of what we take for granted in Pensacola, from educational programs to initiatives for the less fortunate, would not be possible without a select few who give so much. Once a year, they receive just a fraction of the recognition they deserve on National Philanthropy Day, hosted locally by the Association of Fundraising Professionals (AFP). Founded in 1960, the AFP is the professional association of individuals responsible for generating philanthropic support for a wide variety of nonprofit, charitable organizations. Their membership reads like a who’swho of far-reaching, perpetual impact. Manna Food Bank feeds the hungry; Pensacola State College, the University of West Florida and Northwest Florida State
Louisiana. There was Silas Hogan, Vance “Guitar” Kelly, Moses “Whispering” Smith, and Henry Gray. Gray was a huge influence of mine; he’s a piano man who’s still making the piano do what it do. When did you become interested in music? I had access to instruments at a very young age; we had B3 organs and guitars, basically all the band instruments would be stored at our home for when the players rehearsed. The first instrument I was introduced to was the trumpet when I was around 8 years old. My uncle, who was a player for the Southern University Marching Band, taught me how to play and read music for it. Later I experimented with different instruments like the drums and piano, but guitar ended up being the instrument that felt very comfortable. I slept with it, and it became an extension of me at a very young age. When did you start performing professionally? By the time I was 12 I was a professional musician; professional in the sense that people start paying you to perform. But I was taken out on gigs with older musicians as early as 9 years old. Those experiences gave me a unique perspective on the blues and its culture that I think very few people in America have; it’s that unique perspective I bring to my recordings, albums and songwriting rather than someone who’s coming at it from an academic point of view. What literature on the blues sticks out in your mind right now? When I started reading about blues
in literature, I was shocked because it was nothing like my experiences and nothing like what happened during the 25 years my family ran a juke joint. I can tell you a lot of the literature on the blues shouldn’t be taken too seriously. However, there’s a book by MaryBeth Hamilton called In Search of the Blues and hers is one of the first books that really focused on how interlopers, or outsiders, romanticized the myth around blues music and its culture. Her book is important because it calls into question the idea that blues is somehow connected to slavery and that it originated in Mississippi. What I tell people is the blues came from Louisiana and it has nothing to do with slavery or work songs. You’ve played in several documentaries and movies. What led you to acting? I was looking into scoring movies but not necessarily getting in front of the camera. Long story short, an acting director contacted my manager after hearing my interviews on NPR in Philadelphia and asked if I would do a screen test. Once I did O Brother Where Art Thou? and it became a huge success that led to other opportunities. From there it was a natural progression to Ray and portraying another blues musician, Lowell Fulson. Acting is a beautiful experience, but it doesn’t give the same reward, not the same immediacy, as you get when you’re performing music for a live audience. Anything in the works now that you’d like to mention? I’ve been working on a new album for two years that I wanted to get
out by Christmas, but it should be out next year. It’s taking so long because it’s not something I put together lightly. I’ve been writing a book, which should see the light of day sometime next year, too. It’s a memoir that’s also going to argue the history of jazz and blues is too steeped in outdated, 19th-century Victorian thinking. I’ve gained a lot of respect for writers because it’s not an easy process. I also have two movies in the works; I’ll be playing the lead character in a film about a blues musician, and I’ll be doing scoring for a supernatural movie. What can we expect at your Christmas Show here on Dec. 12?
PHilAnTHRoPiC PenSAColA
College provide quality educational opportunities with accessible, affordable tuition; the Foundation for Excellence in Education provides an extra margin of support for the Escambia K-12 schools; Baptist Health Care heals the sick; the Ronald McDonald House provides temporary housing for families of critically ill children; the Pensacola Opera and Pensacola Museum of Art provide quality cultural events; and the United Way of Escambia County provides support for many non-profit agencies in the Pensacola area. As Pensacola has grown, so has the need for these organizations and others like them, and as the need has grown, so has the recognition for those willing and able to step up and shoulder the burden. The AFP has gone from giving out just two awards a few years ago to six in 2015. These include awards for individuals and organization, initiatives and foundations. The Levin Family was named Philanthropist of the Year, an award that recognizes an individual or family for exceptional generosity and
civic responsibility demonstrated by significant financial contributions to charitable organizations in the community. Fred and sister-in-law Teri Levin have donated literally hundreds of thousands of dollars of their own money to non-profit organizations and advocacy initiatives in Northwest Florida in their lifetime. The YMCA, Gulf Coast Kids House and more would simply not exist without them. Few have changed the fabric of this community so positively as the Levins, and for that they were honored as Philanthropists of the Year. Cox Communications was named Philanthropic Business of the Year, an award that recognizes a corporation or business for its philanthropic impact in the community through direct and indirect support of charitable projects. Leaders in this entity must demonstrate a high level of community spirit and participation, motivating employees and colleagues to support charitable activity. Cox recently gave $300,000 to the YMCA of Northwest Florida and regularly contributes to the University of West Florida and Gallery Night to keep the vibrancy and education of Pensacola intact. A national organization that believes in helping the communities it serves, Cox stays engaged in local issues and often recognizes others for their contributions to the city. The Gulf Power Transformers was named Philanthropic Service Organization of the Year, an award that recognizes a community-based organization whose grant programs, donations and charitable activities significantly enrich the community. The recipient provides visible leadership and incentive for others to pursue
philanthropic activity that serves many segments of the community. Each year the employee-driven Gulf Power Transformers contributes donations and volunteer hours to aid many charitable and community projects throughout Northwest Florida, including an annual campaign for United Way, local Ronald McDonald House fundraising events, collecting and delivering children’s gifts at Christmas to low income families, supporting military initiatives and more. D.W. McMillan Foundation and Switzer Brothers Charitable Foundation both received the award for Outstanding Charitable Foundation award. This award recognizes a foundation whose grant programs reflect an understanding of community needs and support local not-for-profits in clear and powerful ways. The Outstanding Charitable Foundation of the Year reflects leadership in giving and problem solving opportunities. The D.W. McMillan Foundation is an offshoot of the memorial hospital in Brewton, Ala. and has donated more than $40 million in the past 20 years and was pivotal in launching the UWF Nursing Center’s Simulation Learning Center Birthing Suite. “After learning about all the community-based philanthropic projects that the D.W. McMillan Trust and Foundation supports, I realize how far their work reaches into Pensacola’s growth and development,” said prior winner Quint Studer. “Their generosity has helped hundreds of agencies continue to carry out their respective missions and make our community a better place to live. They do it for all the right reasons.” The Switzer Brothers Charitable Foundation is an independent foundation established in 1999. Giving primarily in Pensacola, their stated fields of interest include museums, art, scholarships, financial support and at risk children for
The audience will get the quintessential CTK experience. I’d say don’t expect a bunch of Christmas tunes. We have some new songs we’ll play along with all the favorites. You’ve frequented Pensacola often. Are you excited to return to the stage at Vinyl Music Hall? I’ve been playing at Vinyl at least two times a year for the past four or five years. It’s one of the places the band and I look forward to coming back to because the audience is so used to hearing a diverse selection of music. The audience knows all the musical language, so I don’t lose them if I do a little rap tune, get a little country, or crank up my amplifier and rock out.
independence. Since inception, the Switzer Brothers Charitable Foundation has contributed thousands to area nonprofits including gifts to scholarships, PACE Center, YMCA, Arc Gateway, Favor House and many others too numerous to list. “Our area is so very fortunate to have the individuals in these families with the vision and financial commitment to help others,” said Dr. Ed Meadows, president of Pensacola State College. DeeDee Davis was named Outstanding Volunteer Fundraiser, presented to an individual with a proven track record of ongoing, significant commitment to fundraising for one or more organizations. Davis is a wellknown city socialite, facilitating and attending a range of fundraising functions and working with the Council on Aging and other organizations. Martha Lee Blodgett was recognized as Outstanding Fundraising Professional, an award designed for an outstanding individual fundraising professional who practices his/her profession in an exemplary manner. Blodgett serves as the associate vice president for UWF Advancement and in her role has founded the UWF Student Ambassador program, led the Alumni Organization through its first reorganization and even securing the major gift in 2007 that made UWF an all-Steinway school. If this is your first time hearing some of these names, you are not alone. They fly under the radar, often make anonymous contributions and seek to improve the region quietly behind the scenes. Their works speak for them, however, and now their awards do, too. Pensacola is better because of them, and though you may not realize it, so are you.
December 2015 www.esrba.com The Summation 13
Judge’s Preferences J. Scott Duncan J. Scott Duncan
hearing–do not guess. Make sure you
Circuit Judge
allow enough time. Judge Duncan does
Escambia County
strictly adhere to the amount of time
Division: F
requested. If you need a hearing before or after a particular
Judicial Assistant: Jacque Burdick
date, please let us know. Know the names of the attorneys
Address: M.C. Blanchard Building
involved in the case.
190 Governmental Center, 6th Floor Pensacola, FL 32502
If your telephone system has the capability, arrange confer-
Phone: 850-595-4465
ence calls with opposing counsel’s office to coordinate the date
Fax: 850-595-4541
and time for hearing prior to calling the judge’s office. This will eliminate calling the judge’s office several times and will
Each edition we will publish detailed information on one
help ensure the hearing is on everybody’s calendar. If your
of our First Judicial Circuit and County judges. This edition,
telephone system does not have the capability for conference
we are featuring Judge J. Scott Duncan. You can also find this
calling, please contact the judge’s office for dates to coordinate
information and preferences for all First Circuit and County
with opposing counsel. It will be the motioning party’s respon-
Judges at www.firstjudicialcircuit.org.
sibility to coordinate the hearing. Dates will not be protected/ final until the judge’s office is notified that the hearing has
DIVISION PREFERENCES This is intended as a brief overview of policies regarding
been coordinated. Schedule adequate time and do not piggyback motions
hearings and procedural matters. Your courtesies in adher-
onto time already scheduled or another motion in the same
ing to these policies will be greatly appreciated and will make
case unless you check with the judicial assistant first, as well
our system one that runs more smoothly and efficiently for all
as the opposing party. The judge will not hear motions which
involved.
have not been properly scheduled.
Division F in Escambia County is a general jurisdiction
If a case or issue resolves, please notify the judge’s office
division, which consists of Felony Criminal, Circuit Civil,
immediately and cancel all scheduled hearings so time can be
Probate and Guardianship cases.
cleared for other hearings. Valuable calendar time is lost because notice of cancellation is not given. Time could be used
General Information Take a moment to organize your thoughts and have the
for other hearings. The Escambia County Clerk of Court no longer accepts
pertinent file in front of you before scheduling a hearing.
proposed Orders through the Florida Court E-Filing Portal.
Please file your motion with the Clerk of Court and send
All proposed orders must be submitted directly to the presid-
opposing counsel a copy of the motion. When calling to
ing judge. You may submit the proposed order via email in
schedule the hearing, please have all the information needed,
Microsoft Word format with the title “Proposed Order” and
such as the case number, the style of the case, the type of
Case Number in the subject line directly to jacque.burdick@
hearing you are setting and the amount of time needed for the
flcourts1.gov.
14 The Summation www.esrba.com December 2015
Felony Criminal Cases
the Judicial Assistant. Dates will be provided to coordinate with opposing party.
Docket Day and criminal Jury Selection hearings begin at 8:30 am. Criminal Jury Selection will begin the Monday ap-
Please refer back to “General Information.”
proximately 13 days following docket day (unless a holiday, then Tuesday). Jury trials will begin at 8:30 am unless, due
Probate Cases
to the length of the trial, an earlier time has been agreed to by counsel and the court.
In an estate or guardianship, please file all paperwork with the Clerk’s Office. After reviewing the paperwork, the Clerk
Violation of probation hearings are scheduled in Arraign-
will then forward the paperwork along with the court file to
ment Court for a VOP at 9 am. Contested hearings will be set
the judge’s office. All probate matters received without the
at 1:30 pm. One day is reserved for these hearings every six or
court file are automatically forwarded to the Probate Clerk for
seven weeks.
review and returned to the judge for his review and consideration.
Bond motions for VOPS and failure to appears will need to be reviewed by the court prior to scheduling a hearing. The
Please refer back to “General Information.”
court will determine whether a hearing is necessary. Conclusion A hearing will be required for substitution of counsel on cases that are set for trial and the case has been previously continued.
If you have any questions about any of the above information, please feel free to contact our office at 595-4465.
Civil Cases Case management conferences are required for trials requesting three or more days. Mediation is required for all jury trials, and judge trials requiring more than two hours. Mediation must be scheduled prior to setting trial and can be no more than a year prior to the date of trial. Trials scheduled for one or more weeks will be required to remediate one month prior to trial. The opposing party will have 10 days to file an objection to the notice for trial. If an objection is not timely filed, the court will prepare an order setting trial and case management or pretrial conference. The conference will be set without coordinating with the parties. If the scheduled conference time is inconvenient for the parties, it will be the responsibility of the party with the conflict to reschedule the conference immediately upon receipt of the order by contacting December 2015 www.esrba.com The Summation 15
Coming Out for Kids: Protecting LGBTQ Children in Foster Care By LESLIE N. POWELL, CARRIE V. CROMEY & AURORA OSBORN I am a foster child. I live with foster parents because my parents hit me and kept me from school when they found out I am a lesbian. I am a foster child. I live in a group home. I have had four different roommates. The first one was OK but moved out when he turned 18. The second one beat me up when he found out I am gay, so now he’s in juvenile detention. The third one asked for a new roommate. And today I got a fourth one. I am a foster child. I was taken from my parents after my father raped me to teach me not to be a lesbian. I am a foster child. I was adopted once, but my adoptive parents didn’t like that I am different and gave me back. My brother still lives with them. Sometimes I do things to hurt myself because it feels better than what I feel inside. I am a foster child. I am also a transgender male. I have lived in so many foster homes I can’t even count them. They say I have behavior problems so they keep sending me for more treatment. No one seems to know what to do with me and my parents won’t take me back. These are only pieces of stories heard in the child welfare system–stories that are not unusual and reflect those heard in Northwest Florida. A child “comes out” to his or her family–is kicked out, cut off financially, or the family attempts to change his or her sexual orientation, gender identity or gender expression. Studies agree that 20 to 40 percent of all homeless youth self-identify as lesbian, gay, bisexual, transgendered, or questioning (LGBTQ). The US Department of Health and Human Services (DHHS) found that half of homeless youth who came out to their families received a highly negative reaction with 26 percent of LGBTQ youth forced to leave. A 2001 study published in Social Work 16 The Summation www.esrba.com December 2015
Research found that more than one-third of those youth in out-of-home care were physically assaulted at a shelter when they came out, while those who runaway are more likely to engage in survival sex, which puts them at risk for STDs, sexual violence and human trafficking. LGBTQ children in foster care may face multiple rejections–from their biological family; their foster family; their peers; their social workers or counselors–expecting nothing less, they then begin to reject themselves. A 2009 study by the Family Acceptance Project of San Francisco State University found that, compared to LGBT youth not rejected by their families, rejected LGBT young people were more than eight times as likely to attempt suicide; six times as likely to report significant depression; three times likelier to use illegal drugs; and at least three times higher risk for HIV and STDs. In 2011, the DHHS Administration for Children & Families encouraged state-run child welfare agencies to better address the needs of LGBTQ youth in foster care by training staff “to increase their capacity to serve young people who identify as LGBTQ and to consider how the Title IV-E [child welfare] agency can best serve young people and keep them safe.” Florida responded. On Nov. 20, 2015, the Florida Department of Children and Families (DCF) proposed changes to its group home rules to include language to better protect LGBTQ youth in foster care. The proposed rules, under Florida Administrative Code 65C-14.001, et al., define gender, sex or gender identity to mean, “a person’s internal identification or self-image as male or female. Gender identity may or may not correspond to the gender assigned to a person at birth that is listed on the person’s birth certificate.”
The proposed rules would provide LGBTQ children access to personal hygiene, grooming products and clothes that align with their gender identity rather than the gender assigned them at birth. Perhaps most important, the proposed rules prohibit group home staff from engaging in discriminatory treatment or harassment on the basis of a child’s race, national origin, religion, gender, gender expression, sexual orientation or disability; permitting the bullying or harassment of children based upon the same grounds; and attempting to change or discourage a child’s sexual orientation, gender identity, or gender expression. In 2013 and again in 2015, the Florida legislature amended §409.145, Florida Statutes, to allow foster children to have “normalcy” in their ability to do things that nonfoster children can do–things like extracurricular activities, dating, and overnight sleepovers. Similarly, foster parents were given more freedom to approve these normal activities by exercising a “reasonable and prudent parenting” standard. For a foster parent who is unfamiliar or uncomfortable with what it means to be LGBTQ, identifying normal, reasonable and prudent can be a challenge. Local advocates responded to this challenge. In 2014, Florida Bar Foundation-funded children’s advocates, including Legal Services of North Florida (LSNF), joined together to discuss how to best represent LGBTQ children in the child welfare system. In September 2014, local advocates started meet-
ing and learning more about the challenges LGBTQ youth face, above those already faced as foster children, and ways to make them feel safer. Experts from the University of Miami Children and the Law Clinic and Lambda Legal taught local advocates language and terms needed to better understand LGBTQ youth. In trainings sponsored by LSNF, with the support of Sunday’s Child and the Florida Bar Foundation, representatives of DCF, Guardian Ad Litem, Gulf Coast Kids’ House, Children’s Home Society, Lutheran Services, the Escambia County School District, Department of Juvenile Justice, Families First Network, United Methodist Children’s Home, and other child advocacy programs gained tools that help them talk to LGBTQ youth–giving them a safe place in which to confide–and to advocate for these youth within the child welfare system. Each month, advocates meet to share new information and resources for working with LGBTQ youth. We learned of counseling and other services through PFLAG (Parents and Friends of Lesbians and Gays) and Safeport Counseling. We learned of the ACLU’s work with local Gay-Straight Alliances that students are starting in our schools. We learned of anti-bullying work in Alabama through the Welcoming Schools initiative and a Gulf Coast Kids House program –Child Safety MattersTM–that includes discussions of bullying and harassment. Karen Platt, an attorney working in child welfare, shared that, “Through our LGBTQ trainings, people are getting the message that these children exist, that they have needs, and that those are not being met in schools, group homes, DJJ December 2015 www.esrba.com The Summation 17
facilities, and in other public institutions. The local workgroup brought together community organizations that address LGBTQ needs and issues and fostered an organized effort to better serve children in out-of-home care, as opposed to separate groups working individually and less effectively.” Our local academic institutions are also working to improve outcomes for children. Samuel Mathews, Ph.D., and Kyra Watt, B.A., with the Department of Psychology of the University of West Florida, developed a training to help foster families better understand the adolescent brain and associated behaviors to accommodate the youth and prevent rejection. “It’s important to always consider the impact of different biological, psychological and social factors that influence not just the adolescent but also the parent when trying to understand and engage adolescents. This is especially important with “hardto-place youth” that also include LGBTQ adolescents. Each of these individuals we work with (parent and adolescent) are faced with more issues than just gender/sexual identity… They also deal with race, class, ethnicity, religious influences, etc. Current research attempts to understand the issue of intersectionality, however, it rests on us to recognize it and help others work within it.” Even the American Bar Association got involved through its Opening Doors project by publishing Opening Doors for LGBTQ Youth in Foster Care: A Guide for Lawyers and Judges. This resource includes a chapter on examining your own attitudes and beliefs.
18 The Summation www.esrba.com December 2015
The underlying message: “Understanding and advocating for youth whose culture differs from your own is essential to being an effective child’s lawyer or child welfare judge. LGBTQ youth live in your community and need your understanding. There is plenty to celebrate about their lives, but many of them have challenges to overcome. They need you to understand and nurture them so they feel comfortable trusting and relying upon you. They need you to set aside any negative attitudes about LGBTQ people and focus on their needs. You can make a difference for a young person if you can see them for who they are.” To learn more about LSNF’s work to protect children, check out our Facebook Page: LEAVE: Legal Education and Advocacy for Victim Empowerment. Legal Services of North Florida advocates in the areas of children’s rights and education, family law, domestic, repeat and sexual violence injunctions and injunctions against stalking, landlord tenant law, foreclosure defense, real property disputes, consumer bankruptcy, and other traditional civil legal services areas for low income clients.
Carrie V. Cromey
Aurora Osborn Leslie N. Powell
Leslie N. Powell is the deputy director and Carrie V. Cromey is a staff attorney with Legal Services of North Florida. Aurora Osborn is a certified paralegal with the Shell, Fleming, Davis & Menge law firm.
Robert Heath’s The Judas Dilemma A familiar series of murders. A client with a secret. A lawyer caught in the middle of a dangerous game… So begins the description of The Judas Dilemma, the new legal thriller recently published by local lawyer Robert Heath. It tells the story of Rian Coulter, an attorney who left her Birmingham law firm to move to Pensacola to gain trial experience in the Public Defender’s Office, and to escape a serial killer terrorizing the city. When similar murders occur along the Panhandle, the police think Rian knows more than she’s letting on, but she refuses to divulge information about the clients she represents. As the murders continue, the pressure mounts on Rian to reveal what she knows and she finds herself caught between her ethical obligations and her desire to see that no one else gets hurt. A struggle between Rian, the police, the judiciary, the media, politicians and even the Bar ensues that will keep readers turning pages. “I’ve had this story in my head for a long time,” Heath said. Rather than adopt a cynical view of the legal profession, he decided to take a different view. “I believe that the law is a noble profession. I’m proud to be a lawyer and proud of the lawyers I know,” he said. “I wanted that to show through both in the story and in Rian’s character. She takes her duties and responsibilities as a lawyer very seriously.” The fast-paced story is centered in Pensacola and the surrounding area and, although the names of some landmarks such as a local restaurant and pub and a bar straddling the state line have been changed, local readers will know them immediately. It has many twists, as well as a few surprises for readers. “The Judas Dilemma has all the ingredients to capture readers--an intelligent, female public defender, her attorney boyfriend, a forensics expert, law enforcement, and a persistent newspaper reporter! Of course, the clever serial killer weaves his way into the lives of his victims in unpredictable situations,” said Connie Brown, a retired educator from Escambia County and former National History Day Teacher of
the Year who read the book. “Truthfully, I was unable to put this book down once I started reading,” she said. The book has also received high marks from local attorneys. “Anyone who has ever practiced law in Pensacola would love The Judas Dilemma,” said Adrianna Spain. “The characters can be found in the courtrooms, halls and elevators of the M.C. Blanchard Judicial Building. I definitely recommend it, but be careful when you start reading it. It’s addictive!” she said. David Sapp felt that the introduction of Public Defender Rian Coulter is a welcome addition to the legal thriller genre. He found the story a real page-turner. “Once started, you can not put this book down. Don’t start reading if you have somewhere else to be in the next few hours,” he said. Balancing an active trial practice with writing and publishing a book proved a challenge for Heath. “I found that I wrote best in the early morning, so I tried to put time in every day before going to work,” he said. Even so, it took over three years to complete the manuscript and another year of editing and revisions. “My day job kept getting in the way,” he said. After talks with several literary agents, Heath decided to form his own publishing company, Oban Books, and publish the book himself. “I found that, unless you write about zombies or vampires, agents and large publishing houses really aren’t interested,” he said. “Amazon has changed the paradigm for publishing for everyone, although the learning curve was pretty steep.” He was fortunate to meet several successful authors along the way who were willing to help such as mystery writers Jenny Milchman, Scott Pratt and local lawyer/author David Heirs. Publication of his first book has only intensified Heath’s desire to continue writing, and he is back at work on his second book, a story based upon an actual case that he tried in the late 1980s. Rian Coulter and many other characters from the first book will return, and he plans to make the books a continuing series. The Judas Dilemma is available on Amazon.com in both print form and a Kindle eBook, although Heath anticipates expanding to other outlets soon. Production has begun on a cinematic video trailer and an audiobook is planned for the near future. The book is also available from Heath’s website at www.robertheathbooks.com where you can also sign up for free sneak previews and advance notice of future works.
December 2015 www.esrba.com The Summation 19
Replenishing Shortages in the Trust Account By LOIS B. LEPP On June 11, 2015, the Supreme Court of Florida is-
some of their own monies and some of other clients’
sued an order adopting changes to the Rules Regulating
monies, without those clients’ knowledge as to what the
The Florida Bar (SC-2088) as part of the Bar’s bien-
clients’ funds were being used for. Both attorneys were
nial rules petition. This article will address one of the
found to have commingled assets in addition to the other
changes to the trust accounting rules which may impact
charges which led to their disbarment.
private practitioners. In order to create a mechanism for the appropriate reAt the mere utterance of the words “trust account,”
plenishment of missing trust funds, whether by error or
many practitioners quiver. Compliance with the rules
by intentional act, the Supreme Court of Florida adopted
governing trust accounts is not difficult. But my focus is
Rule 5-1.1(a)(1)(B), RRTFB.
not on general and ongoing compliance with the trust accounting requirements. My discussion is regarding
Rule 5-1.1(a)(1)(B), RRTFB, states:
Rule 5-1.1(a)(1)(B), Rules Regulating The Florida Bar
A lawyer may deposit the lawyer’s own funds into
(RRTFB), which was adopted by the Court, effective Oct.
trust to replenish a shortage in the lawyer’s trust ac-
1, 2015.
count. Any deposits by the lawyer to cover trust account shortages must be no more than the amount of the trust
Prior to the adoption of this rule change, if an attor-
account shortage, but may be less than the amount of
ney had made an error in his/her trust account disburse-
the shortage. The lawyer must notify the bar’s lawyer
ments or if an attorney found him/herself in the midst of
regulation department immediately of the shortage in
allegations of misappropriation of trust funds, either by
the lawyer’s trust account, the cause of the shortage, and
the attorney or by an employee or agent of the attorney,
the amount of replenishment of the trust account by the
the attorney could not replace the missing funds in the
lawyer.
trust account with the attorney’s own funds, without complicating the problem by running afoul of the ‘no
This rule change appears to be consistent with the
commingling rule.’ In other words, when the attorney
way many other states handle replenishment of trust ac-
tried to “make things right” by replacing the missing
count shortages. Many states already allowed the attor-
client funds, he/she could then be charged with commin-
ney to replenish the shortage without being charged with
gling funds, in violation of Rule 5-1.1(a)(1), RRTFB.
commingling of attorney’s funds with clients’ funds.
In a 2013 case, The Florida Bar v. Rousso, 117 So. 3d
The rule change now allows the attorney to deposit
756 (Fla. 2013), which stemmed from separate com-
only the attorney’s own funds into the attorney’s trust
plaints against two attorneys operating a firm together,
account to cover a shortage. One cannot deposit another
the attorneys charged with misappropriation from their
client’s funds into the trust account to replenish the miss-
trust accounts replaced the missing trust funds with
ing funds. This requirement for the lawyer’s use of his/
20 The Summation www.esrba.com December 2015
her own funds prevents the use of client’s funds without
error, or writing a check from trust, when it was intended
the client’s knowledge or understanding, as occurred in
to be from an operating account).
the Rousso case. If we are maintaining our monthly record-keeping The amount that may be deposited is up to the amount
requirements, then we pick up on those errors no later
of the shortage of funds. It may be less than the amount of
than a month after the errors occur. In the past, when we
the shortage, but it may not be more. Note that the attor-
discovered an error, we may have been covering that error
ney is already permitted to have a nominal sum of his/her
with our own funds, which technically violated the ‘no
money in the trust account to cover bank charges related
commingling rule.’ But now we have an authorized proce-
to the trust account, per Rule 5-1.1(a)(1)(A), RRTFB. This
dure to cover shortages in our trust account.
new replenishment provision is in addition to the nominal sum provision. The attorney must then report ‘immediately’ to the lawyer regulation department of The Florida Bar a) the amount replenished; b) the amount of the shortage; and c) the cause of the shortage. The lawyer regulation depart-
Lois B. Lepp has been serving Northwest Florida’s legal needs for over 25 years. She provides a wide range of legal services including guardianship, probate and elder law matters to estate planning, professional ethics, licensure defense and general civil litigation.
ment can then investigate whether there is cause for disciplinary proceedings. This reporting to The Florida Bar would also allow the Bar to insure that another client’s monies were not used to cover the shortage. This new rule is designed to encourage the attorney who has misappropriated trust funds (or whose staff has done so) to replace those funds, without an additional charge of commingling. If the cause of the shortage is due to a genuine error of the attorney, his/ her staff or the bank, then the attorney’s trust account records will reflect that, and there will be no cause for disciplinary proceedings. We have all made errors in our trust account at one time or another, no matter how vigilant we are about it (e.g., a math
December 2015 www.esrba.com The Summation 21
The Bottom Line Avoiding UPL This Holiday Season By CAROLINE PETERSON Welcome to the yuletide season. A season filled with peace and love and faith and hope and . . . intense stress, because the boss is gone and you are left alone to “run the office.” What does that that actually mean for you? It depends. (The lawyer’s favorite answer for everything.) All of our offices have different structures and procedures and hierarchies. How many hats we wear during the yuletide season depends on all of those things. During this joyous season of little or no supervision, it is easy for a paralegal to stray into the dreaded territory of Unlicensed Practice of Law “UPL.” UPL has no hard and fast definition. It is refined everyday on a case by case basis. What is UPL in some states is not UPL in others. We are going to focus on Florida and define UPL as giving advice to others as to their rights and obligations under the law, representing someone in court, and/or establishing an attorney-client relationship, including discussing and setting fees for services. UPL rules were created to protect the public from unqualified individuals providing incomplete or incorrect legal advice to members of the public without accepting the duties of loyalty, competence, diligence, informed consultation, and candor that are placed on practicing attorneys. Let’s get back to our paralegal, alone in the office with no attorney (Hooray! Peace at last!). An insurance adjuster calls and says the defendant has agreed to pay policy limits. They want to send the release and check right over. . . if it’s okay with YOU. You know that your boss has discussed this with the client, and the client has agreed to accept policy limits. You know that the attorney would love to get the client paid before the end of the year. What’s a paralegal to do? How do you handle a client who comes in for a settlement disbursement when no attorney is available? Things go along just fine, but then the client has a bunch 22 The Summation www.esrba.com December 2015
of tax questions. Now what? How about the longtime client who comes in with a simple contract question, insisting that you help him. He’s been a client of your attorney forever, and you always help him. What do you do? You send up a few quick prayers. You take a few deep breaths. You jump in with both feet. . . and tell each one of these individuals that you are sorry that you cannot assist them with their respective issues. You must consult the attorney before answering their questions or giving directions. Sometimes this will cause a lot of heartache. You know the answers and it is so easy to answer these questions just like you have a million times before. You know what your boss is going to say. . . but if you do talk to the clients without talking to your boss first, you are committing UPL. Most Bar and paralegal associations will not sanction the paralegal for UPL . . . they will however sanction, or even disbar, the attorneys who are responsible for the paralegals because attorneys are ultimately responsible for the actions all of their staff. So during this time of yuletide cheer remember, if you think or even just feel like you might be committing UPL, you probably are. Be safe, step back, call your attorney, and ask for advice and direction. Your boss would rather get a call from you to asking for advice, then a call from The Florida Bar asking for an explanation as to why you are practicing law in his/her absence. Merry Christmas, and that’s the Bottom Line. Caroline Peterson RN, CP, FRP is a registered nurse and certified paralegal with Levin, Papantonio, Thomas, Mitchell, Rafferty & Proctor.
Young Lawyers and Access to Services By GORDON GLOVER We all know the legal profession is facing many challenges, with three of the biggest being access to legal services, the lack of jobs for young lawyers, and the impact of technology.
for health information or legal advice, people go to the Internet to find what they need. Online legal platforms can increase access to legal services while opening new job possibilities for young lawyers. It’s a win-win.
With some effort and creativity, we can turn those three challenges into solutions and opportunities.
The Commission on Access to Civil Justice, in its Interim Report, recommended the continued development of a statewide gateway portal to legal services. This online connector would lead people to information, resources, self-help, advice, and representation. In response to a push by The Florida Bar’s Young Lawyers Division, the commission is also examining whether the Bar’s current Lawyer Referral Service could be improved and tied in with the portal. These initiatives offer great promise as a way to connect young lawyers with an unserved market.
The issue of access to legal services has been welldocumented, thanks to Florida’s Commission on Access to Civil Justice, which was established a year ago by Chief Justice Jorge Labarga. The commission is looking at unmet civil legal needs while also examining our legal assistance delivery system as a whole. That’s important because the issue of access goes beyond low-income and disadvantaged Floridians. Many moderate and middle-income people feel they can’t afford a lawyer (and I bet many lawyers cannot afford their own high hourly rates). In fact, fewer than 17 percent of people retain a lawyer when they have a legal problem. This is a huge unserved market. How huge? Richard S. Granat, an innovator in legal services delivery, has estimated the worth of this unserved market at $45 billion nationally. Yet, while this potential market sits untapped, brilliant young people are graduating from Florida’s law schools, only to find themselves saddled with debt and unable to find work. The average debt for a law school graduate is $140,000. Additionally, 15 percent of new lawyers can’t find employment, and for those who do in Florida, the average starting salary is $45,000. Those numbers don’t add up to success. We need to connect these young Florida lawyers who need legal work with the people who need legal services. That’s where technology can help. Today, a young lawyer does not have to charge high hourly rates in order to succeed. A young lawyer can create a virtual office without stacks of legal books or rented office space, and utilize web-based practice management software for less than $40 per month. Low overhead means lower costs for legal representation. A young lawyer charging only $100 per hour and billing 1,000 hours a year (significantly less than a lawyer in a big firm) can make a decent living. More importantly, those lower costs can open a new market, putting that lawyer within reach of people who have felt they can’t afford legal advice.
Of course, we can’t just leave it to young lawyers and their smartphones to solve the enormous problem of access to justice. We need to train lawyers on how to “practice law” and utilize technology. To meet that need, law schools must offer more legal technology courses and encourage participation in clinics, internships, and externships. The Bar also has a duty to help young lawyers get the training and experience they need, and to help them understand the Rules Regulating The Florida Bar. Let’s look carefully at the rules on advertising, referral networks, and unbundling of legal services and, if needed, amend them so that they will not hinder a young lawyer’s ability to make a practice thrive. Experienced lawyers also need to view young lawyers as teammates, not future competitors, and be willing to mentor them. Right now, some of Florida’s more than 26,000 young lawyers may have trouble seeing a bright future. No doubt the same is true for the many Floridians who feel they have no access to legal services. The Commission on Access to Civil Justice is providing a foundation to solve those problems. If we all join the effort, we can identify and seize the opportunities that advancements in technology offer to both our young lawyers and their future clients. Gordon Glover is president of The Florida Bar Young Lawyers Division and founder of the Glover Law Firm in Ocala. Contact him at gordon@gloverlawfirm.com.
Online legal platforms such as LegalZoom, Rocket Lawyer, Avvo, and Legal Hero also offer opportunities. Whether it’s buying shoes or airline tickets, or searching December 2015 www.esrba.com The Summation 23
Pensacola High School Law Academy By NANCY HARTJEN Sarah J. Ussary dreamed of creating a place where high school students could prepare to enter law-related careers or go to college. She envisioned a program that would produce students who had strong communication and technology skills. She knew that those skills, combined with high ethical standards and a commitment to become responsible citizens and advocates for their communities would put them on a path to achieve great things.
PHS Law Academy students at the FL Supreme Court with Justice Peggy Quince
In the summer of 1999, the Academy of Law and Public Service was introduced to the students of Escambia County. The Academy’s first home was Woodham High School, but when Woodham closed, the Academy moved to Pensacola High School, where it remains to this day. The Academy of Law and Public Service has changed some since its early days and even though Dr. Ussary is no longer with us, her memory lives on. The Academy is now known as the Dr. Sarah J. Ussary Law and Public Service Academy. It was renamed in her honor, soon after she passed away, in recognition of her hard work and dedication. Dr. Ussary knew the value of experiential learning—giving students the opportunity to experience, things, rather than just reading about them. Her students learned about the law through activities including mock trials and trial team competition. She frequently took them on field trips and invited guest speakers to visit the law academy. That hasn’t changed. Although Pensacola High School has not had a trial team for several years, the law academy students have been very busy. So far this year, the students have hosted a number of guest speakers, including Judge Gary L Bergosh, several local attorneys, and a paralegal. Some of the students are preparing to take the NALS Accredited Legal Profes24 The Summation www.esrba.com December 2015
sional examination in December, while others are developing a student justice system for Pensacola High School. Students have also been on a number of small-group field trips, with more planned for the early spring. In September, six Law Academy seniors and their instructor attended the Escambia-Santa Rosa County/Northwest Florida Paralegal Association’s seminar, “Keeping Up With the Times” at the M.C. Blanchard Judicial Center. In October, a group of three students accompanied their instructor to the VA Stand Down at Pensacola’s VA Joint Ambulatory Care Center, where they volunteered with Legal Services of North Florida and learned about the issues facing homeless veterans in our area. On their most recent field trip, a group of six students traveled to Tallahassee to visit the Florida Commission on Offender Review, the State Capitol, and the Florida Supreme Court. The students who went on this trip were second and third year law academy students who, as part of last year’s classes studied teenagers and the death penalty. They did an in-depth study of the Trout Auto Parts murder, a 1991 case from Pensacola in which teenage defendants were sentenced to death for their involvement in a brutal murder.1 When the students learned that two of the defendants from that case had become eligible for parole, they wanted to attend the hearing to learn more about the parole process from both the offender and victims’ per-
spectives. After the parole hearing, the students and their guide from the Florida Law Related Education Association, Inc., visited the State Capitol and the Florida Supreme Court, where they met with Justice Peggy Quince. In addition to their class work and field trips, PHS Law Academy students are making their mark on the community. They serve as ambassadors at functions both on campus and off. In the fall, they participate in the Commitment to Graduate Ceremony at Pensacola High School and welcome incoming freshmen to the academy. In the spring of each year, they speak with middle school students about the academy, and invite them to join us when they come to high school. Last year, Law Academy student, Ty’Drick King won the Law Day Essay Contest and presented his essay at the Law Day Luncheon. . .and the list goes on. As the Law Academy continues to grow, we look forward to increasing our presence in the legal community by creating partnerships with law firms and legal service organizations, and ultimately, developing an internship program that will allow students to gain experience, first-hand, in the legal profession. If you have some time available, and would like to become a friend of the law academy, a guest speaker, or if you would like more information about the academy, please feel free to contact Nancy Hartjen, Esq. at 850- 939-2032, or e-mail at nhartjen@escambia.k12. fl.us. Nancy Hartjen is a licensed Florida attorney and instructor for the Law and Service Academy at Pensacola High School.
In 2005, the U.S. Supreme Court, in Roper v. Simmons, held that it was unconstitutional to impose capital punishment for crimes committed by defendants under the age of 18. Teenage defendants in the Trout Auto Parts murder were re-sentenced to life in prison.
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Photos VA Stand Down 2015...
... The Escambia Clerk of Court and Comptrollers’ Office assisting our veterans
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Photos Jazz for Justice 2015...
... To benefit the Legal Services of North Florida
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Photos NWFPA Seminar 2015...
Caroline Peterson introducing the NWFPA Seminar presenters
Judge Gary Bergost presents a session on Contempt of Court
Judge Gary Bergost explains the “Challenge Coin” to Pensacola High School student, Ty’Drick King
Gabi Vero discusses attorney- Susan Woolf talks about conficlient relations in the dential and sensitive informadigital age tion and the duties of the attorney with regard to Clerk of Court records
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Photos Seventh Annual ESRBA Holiday Party... ... Hosted by Gulf Coast Community Bank
Meet Northwest Florida’s New Paralegal Association Officers (Left to right) Aurora Osborn, Carrissa Mitchell, Selina Bryant Heidi Yefremov, Debra Bass, Regina Vino, and Donna Nall
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News from the Clerk The Importance of Jury Duty By PAM CHILDERS Recently a delegation of lawyers, professors and lecturers from the People’s Republic of China, hosted by the Gulf Coast Diplomacy Council, visited the M.C. Blanchard Judicial Building to observe and learn about the US legal system and our jury process. That Monday morning, the group observed the juror check-in process with discussion on the basic facts about juror qualifications, including that they are randomly selected from those people 18 years old or older who live in the county and have a driver’s license or identification card from the Department of Highway Safety and Motor Vehicle. Discussion continued to the number of judges selecting panels for trials, the number of cases scheduled to be heard that week, and how important it was to provide the judges with the proper number of jurors needed to adequately select all juror panels. For that particular week, 960 citizens had been summoned in order to provide the pool of 200 required by the four judges selecting. Of those 960 summoned, 468 were available for selection, 24 would be excused, and an estimated 157 would fail to report, leaving 311 expected to appear. That morning, only 214 appeared for jury service. Quickly a question came from the group, “Why do they not show up?” The response, “They either forgot or just ignored their summons.” Immediately their next question, “What is the punishment for not showing up?” The response of “nothing” was met with wide eyes and conversation amongst themselves in their native language that was not translated. Approximately 1.5 million people are summoned each year for jury service in either state or federal court. This year in Escambia County, 47,197 citizens have been summoned to appear for jury service. Of that number, 9,636 have responded by appearing for service. Unfortunately, “fail to appear” is common. The appearance rate for summoned jurors is approximately 25 percent. The low turnout due to “no response” and “fail to appear” creates a significant obstacle for the Clerk’s office, attorneys, litigants and the judiciary. Since 2008, Escambia County is the primary venue for all First Judicial Circuit Engle Progeny tobacco litigation cases. These cases require a minimum of three weeks of trial time plus multiple days of jury selection. Due to the length of service required, not to mention the personal inconveniences and employment obstacles, selecting a jury is very challenging for all parties involved. Because of the low turnout, we have summoned 30 The Summation www.esrba.com December 2015
as many as 1,900 individuals in order to get the sufficient number of jurors for a tobacco trial selection week. Escambia County has approximately 40 pending tobacco trials. While many of the rules that govern jury management have not changed significantly over the years, there are some new challenges that have been the impetus for additional rules and judicial oversight, specifically juror access to the Internet and social media. Jurors are educated on the rules governing the use of electronic devices and the Internet beginning with their jury summons, during the orientation video, in signage posted in the jury assembly room, directly from Clerk’s jury personnel, and by instructions from the judiciary once they get situated in the courtroom. Jury scams are on the rise locally and statewide. Our office has received numerous calls from citizens to report the potential scam; others were not so fortunate in that they already tendered the amount demanded. The current scam attempts to deceive people out of money as the caller claims to be a law enforcement officer and that the receiver of the call, or a close relative, did not appear for jury duty or grand jury duty. The caller then goes on to explain to the individual that they can pay money in order to prevent the arrest of the person who purportedly failed to report for jury duty. Anyone who has been a victim, knows of a victim, or has any information should contact the State Attorney’s office. One of the fundamental Constitutional rights of every person in the United States is a trial by jury. A juror’s responsibility is to render a verdict according to the law and evidence presented during the trial. We would like to impress upon our jurors, and visiting Chinese delegation, to fully comprehend the words spoken by former Chief Justice Fred Lewis in his juror orientation video message … “Liberty and freedom are not free. We will not remain a free people without the jury system, and you are part of that system, and you are making this happen.” To learn more about jury service, go to our webpage at www.escambiaclerk.com. Submitted by Brenda Van Brussel on behalf of Pam Childers, Escambia County Clerk of the Circuit Court & Comptroller
Classifieds
Calendar December 24
If you would like to place a classified ad in the next edition of The Summation, please call 850-433-1166 ext. 29, or send an email to dawn@ballingerpublishing. com.
Christmas Eve Bar Office Closed December 25 Christmas Day Bar Office Closed December 31 New Year’s Eve Bar Office Closes at 1 PM January 1 New Year’s Day Bar Office Closed January 21 January Bar Meeting Seth Miller, Executive Director The Innocence Project of Florida Portabello Market Noon – 1 PM February 11-15 CLE Cruise New Orleans to Mexico February 18 February Bar Meeting Ramon A. Abadin, Florida Bar President Portabello Market Noon – 1 PM
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