Res Gestae - June 2016

THE OFFICIAL AWARD-WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION JUNE 2016

DON'T MISS THE BOAT! LCBA is Key West bound

MIRANDA TURNS 50 Celebrating the anniversary of your "right to remain silent" SERVING THE CITIZENS AND LEGAL COMMUNITY OF LEE COUNTY SINCE 1949

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Contents Cover design: April Bordeaux

AD DIRECTORY

You have the right to remain silent.

Anything you say can and will be used against you in a court of law.

You have the right to an attorney.

If you cannot afford an attorney, one will be provided for you.

Do you understand the rights I have just read to you?

With these rights in mind, do you wish to speak to me?

20

32

features 14 Data Breach

A Patient Rights Primer

by William DeForest Thompson, Esq.

20 Contemplating Miranda

Celebrating 50 years of your "right to remain silent"

by Sara Fitzpatrick Comito

departments

28

6 Letter from the President

28 Legal Lens

by Scott Atwood, Esq.

8

Calendar of Events

9 LCBA Executive Director

Profile on Lisa Sbuttoni

10 Ethically Speaking

by Henry Lee Paul, Esq.

12 Criminal Law Practice Section

Court Interpreters

by Marisa Boysen, Esq.

16 Advertiser's Spotlight

Massie & Reilly CPAs, PLLC

LCBA Awards Luncheon

30 Legal Lens

LCBA Awards Luncheon

31 100 Club 32 The Dish

Cowboy Crab and Seafood

34 From the Bar

Holly Cosby, Esq.

by Kathy Grey

18 Legal Lens

37 Don't Miss the Boat!

YLD Miniature Golf Tryathlon

24 Legal Lens

Law in the Mall

26 Legal Lens

4

After-Hours Social at Bacchus & Investiture of Hon. Devin George

RES GESTAE | JUNE 2016

19 27 42 27 35 13 38 27 17 41 BC 25 34 19 7 17 35 39 11 25 IBC 37 36 17 16 19 39 11 41 31 11 35 3 36 7 5 29 7 41 36 25 13 IFC

36 From the Bar

16 New Members

Allied Business Solutions Birch Properties Boyle & Leonard, P.A. Business Observer Calvo & Calvo Attorneys at Law Compass Law Firm CONRIC PR & Marketing | Publishing Denise Kennedy Dial A Nurse Inc. Donna Tisch Edison National Bank Experience Real Estate Group, LLC Florida Dispute Resolution Fort Myers Court Reporting Garvin Law Firm Get Smart Bail Bonds Geraghty Mediation Henderson | Franklin Island Vacations Jason L. Gunter, P.A. Joe Viacava Law Key West Kushner & Kushner Attorneys Law Firm of Scott T. Moorey Legal Aid Leonard P. Reina Leslea Ellis, LLC Levins & Associates, LLC Livingston Loeffler, P.A. Massie & Reilly CPAs,PLLC McHale, P.A. Merit Court Reporting, Inc. Musca Law Office, Inc. Patterson Eskin & Ball Simon M. Harrison Spivey Law Firm Sundial Beach Reort & Spa T 3 Communications Veranda Restaurant Vantage Construction Services Von Ahn & Associates Webb & Scarmozino William DeForest Thompson Jr., LLC

Justin Stockman, Esq.

by Kathy Grey

LCBA does Key West

38 On the Bench

Honorable Amy Hawthorne

by Kathy Grey

40 In the News

News and Happenings

It is the policy of the Lee County Bar Association to hold meetings only in those facilities that do not discriminate on the basis of race, gender, sexual orientation, national origin, physical or mental disability or religion. The Association will engage in a good-faith interactive process with any employee, prospective employee, member or invitee to determine if a reasonable accommodation is needed and will make reasonable efforts to provide such accommodations. Any requests for accommodation should be directed to the Executive Director of the Lee County Bar Association, Lisa Sbuttoni at info@leebar. org or admin@leebar.org or (239) 334-0047.

Maximum Referral Fees Paid

Automobile Accidents Motorcycle Accidents Truck Accidents SPIVEY AD Victims of Drunk Drivers Slip & Fall Accidents

239-337-7483 www.SpiveyLaw.com Main Office 13400 Parker Commons Blvd Fort Myers, FL 33912 Serving ALL of Florida Attorney Randall L. Spivey Board Certified Civil Trial Attorney Randall L. Spivey

Letter from the President As I mark the midpoint of my year as President, I step back and see such a great group of people in this organization.

People who step up to help – help this organization, help the public, help their families. And, let’s face it, that’s why most of us got into this business in the first place.

We wanted to help people. Sure, there are those out there in the peanut gallery who attack lawyers and say we aren’t out to help anyone other than ourselves. They simply don’t know what they are talking about. It makes me proud to lead the people in this group.

Last month, we had our annual golf tournament. By all accounts, it was a resounding success. I want to thank the entire golf committee, chaired by Shannon Puopolo, for all the hours they spent pulling it all together. It is a big endeavor, but they made it looked seamless. Our new Executive Director Lisa Sbuttoni and Administrative Coordinator Lisa Poulin went above and beyond the call of duty making sure there were no loose ends.

Thanks to the tireless efforts of these folks, plus our sponsors and the more than 120 players who played for charity and then bought things at the auction, we made a ton of money for the Guardian ad Litem Foundation. I think it only appropriate that our volunteers volunteered for a group that supports volunteers who help the public.

We help people.

Can we do better as a profession? Of course. We can always strive for better. We are, as a group, pretty darned stressed out. We face enormous pressure from nontraditional competition, many of us have student debt that makes us live like we never left college, and we even have the lingering issue of dealing with the troglodytes that make Ray Abadin have to spend time giving speeches on how to treat other people with dignity and respect (Thanks, Ray, for the engaging dialogue we had with you at our joint lunch with LCAWL.) I hope the day will come when those speeches are no longer necessary. But I truly believe that, despite these issues, we as a group are what America stands for: hard-working people who care about and take care of others whenever they can. And we do it selflessly and without the need for accolades.

I consider it a privilege to be an attorney. I take great pride in it, and in my fellow attorneys who give so much of themselves. So here are your accolades: To all of you, I say thank you…and keep up the good work.

LEE COUNTY BAR ASSOCIATION ADMINISTRATIVE TEAM Executive Director ~ Lisa Sbuttoni Administrative Coordinator ~ Lisa Poulin

EXECUTIVE COUNCIL President ~ Scott Atwood, Esq. Vice-President ~ Kelly Fayer, Esq. Secretary ~ Daniel Endrizal, Esq. Treasurer ~ John Webb, Esq. Board Members: Spencer Cordell, Esq., Jenna Persons, Esq. Scot Goldberg, Esq., Shannon Puopolo, Esq. President Emeritus ~ Anne Dalton, Esq. YLD President ~ Thomas Coleman, Esq.

COMMITTEES HISTORY E. Bruce Strayhorn, Esq. & Jenna Persons, Esq. LAW RELATED EDUCATION T. Rankin Terry, Esq. LAW WEEK Hon. John S. Carlin MEMBERSHIP Theresa Daniels, Esq. MOCK TRIAL Karla Campos-Andersen, Esq. PRO BONO Aaron Cilek, Esq. & Anais Bimonte, Esq. SOCIAL EVENTS John Webb, Esq.

PRACTICE SECTION CHAIRS ALTERNATIVE DISPUTE RESOLUTION Anne Dalton, Esq. & Bill Merchant, Esq. APPELLATE LAW Laura Lee, Esq. CRIMINAL LAW Marisa Boysen, Esq. & Stephanie Russell, Esq. FAMILY LAW Dustin Butler, Esq. & Ryan O’Halloran, Esq.

Last Call to join your fellow members in Key West.

Call 239.334.0047 today to RSVP!

GENERAL CIVIL & BUSINESS LITIGATION George Knott, Esq.. & Carlos Kelly, Esq. LAND USE & GOVERNMENTAL LAW Neysa Borkert, Esq. & Amanda Brock, Esq. REAL PROPERTY, PROBATE & TRUST LAW Kenneth Kemp, Esq. & Matthew Linde, Esq. SOLO AND SMALL PRACTICE SECTION Jason Gunter, Esq. & Conor Foley, Esq.

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RES GESTAE | JUNE 2016

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JUNE 2016 | RES GESTAE

7

Calendar of Events June 1

LCAWL and the LCBA Joint Luncheon

Noon – 1 p.m., The Marina at Edison Ford, 2360 W. First St. with special guest Ray Abadin, Esq., President of the Florida Bar. LCBA and LCAWL members $15, non-members $25.

Register online at www.leebar.org.

June 10

Criminal Law Practice Section Brown Bag Meeting Noon – 1 p.m., Lee County Justice Center, Courtroom 5-G

June 11 & 12

LCBA Key West Trip

Join us on the Key West Express to enjoy one to two days of paradise.

Registrants will be responsible for hotel cost.

Register online at www.leebar.org.

Sponsored by: Garvin Law Firm, Hollander & Hanuka Attorneys at Law, Massie & Reilly, CPAs

and Ryan O’Halloran, co-chairs

June 30

Land Use and Governmental Law Practice Section Lunch Meeting

Noon – 1 p.m., location and additional details to be provided on the LCBA website when confirmed.

Neysa Borkert and Amanda Brock, co-chairs

July 21

Family Law Practice Section Brown Bag

Noon – 1 p.m., Lee County Justice Center, Courtroom 5C. Dustin Butler and Ryan O’Halloran, cochairs

Exceeding the

VISION #myfloridabar

June 15 – 18

Annual Florida Bar Convention

Info and registration at www. floridabar.org/annualconvention.

June 16

Family Law Practice Section Brown Bag

Noon – 1 p.m., Lee County Justice Center, Courtroom 5C. Dustin Butler

2016 Annual Florida Bar Convention June 15 -18 Hilton Orlando Bonnet Creek & Waldorf Astoria

Thank You to our Annual Sponsors for 2016

8

RES GESTAE | JUNE 2016

Introducing Our New Executive Director -

Lisa Sbuttoni

Lisa Sbuttoni has dedicated much of her career to being an evangelist for Lee County’s local treasures, and the Lee County Bar Association is fortunate that our new Executive Director considers this organization to be one of them.

meet her at a luncheon, at the golf tournament or another recent event, stop on in to the LCBA offices and say hello.

Her qualifications are too numerous to name here, as are her accomplishments on behalf of many Lee County nonprofit organizations. She has served as an unsung hero in various ways to our community, and so we’d like to take this opportunity to sing her praises.

If you haven’t had an opportunity to

239.334.0047 resgestae@leebar.org

Staff Box PUBLISHER Connie Ramos-Williams 239.690.9840 ASSOCIATE EDITOR Sara Fitzpatrick Comito CREATIVE DIRECTOR April Bordeaux

Lisa spearheaded the marketing efforts of Captiva Cruises to highlight that company’s opportunities for residents and visitors to discover the wonders of our waterways. Her strategic branding and business development acumen increased educational programming and ridership aboard the various dolphin and wildlife experience cruises, sunset sails, shelling excursions and chartered adventures.

At Edison & Ford Winter Estates, where she served for almost a decade, Lisa’s creativity and hard work resulted in increased visitation and revenue.

She can claim credit (although she’s too humble to mention it) to the development, implementation and management of the Estates’ membership program. By applying her talent for building and maintaining relationships, she nurtured ongoing partnerships within the business community to provide sustaining support for years to come. Her experience with producing events like the Edison & Ford Holiday Nights and other signature programs is already proving an asset to the LCBA and its members.

THE OFFICIAL AWARD-WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION

ADVERTISING DIRECTOR Linda Fiore 239.690.9840 CONTRIBUTING WRITERS Scott Atwood, Esq. Henry Lee Paul, Esq. Marisa Boysen, Esq. William DeForest Thompson, Esq. Sara Fitzpatrick Comito Kathy Grey BILLING INQUIRIES 239.334.0047 New Executive Director Lisa Sbuttoni gears up for the LCBA Key West Trip

“The LCBA’s attorneys and judges are uniquely positioned to make a difference in their community,” Lisa said. “I am honored to help this organization serve its members in the most effective, efficient way possible, so they can continue that nearly 70-year-old tradition. I invite all members who have suggestions about how to make their bar association the best it can be to come talk to me!”

Please join us in welcoming our new Executive Director, Lisa Sbuttoni. RG

6216 Whiskey Creek Drive, Suite B Fort Myers, FL 33919 239.690.9840 | ConricPR.com | info@ConricPR.com Res Gestae is an award winning magazine published monthly by CONRIC Publishing in partnership with the Lee County Bar Association.

All editorial, advertising and photos may be submitted for consideration through email to: resgestae@leebar.org.

We make every effort 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 LCBA, Res Gestae, or CONRIC Publishing.

Copyright© 2016. Lee County Bar Association, Inc. All Rights Reserved. No portion of the publication may be reproduced in part or in whole without prior written permission of the Lee County Bar Association. To inquire about such permission, please contact the Lee County Bar Association at info@leebar.org.

JUNE 2016 | RES GESTAE

9

Ethically Speaking

‘Referral’ fees with out-of-state lawyers

By Henry Lee Paul, Esq.

It is a common perception that a Florida lawyer may give or receive a “referral” fee in personal injury cases. The commonly used term of “referral” is a misnomer. A true referral fee just for the referral of a client is prohibited.

The Florida Bar refers to the typical “referral” arrangement as “Division of Fees Among Lawyers in Different Firms.” The “referring” attorney must share responsibility for the case and the arrangement must be fully disclosed to and approved by the client. If a “referral” amount is greater than 25 percent, it must be approved by a court, pursuant to Rule 4-1.5(f )(4)(D).

The referring attorney maintains an obligation to the client and may be subject to discipline or liability for legal malpractice in relation to the referred case.

One of the most common issues involving the division of fees between lawyers of different firms arises when the lawyers are licensed in different states.

The Florida Supreme Court has taken a strong position against allowing payment of or division of fees with lawyers not authorized to practice law in Florida.

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RES GESTAE | JUNE 2016

The leading case addressing this issue in the context of unauthorized practice of law is Chandris v. Yanakakis, 868 So. 2d 180 (Fla. 1995). Yanankakis was an outof-state lawyer who represented a client in a Jones act case. The client signed a fee agreement with Yanakakis. Although a Florida law firm had been consulted by the client and Yanakakis, the Florida firm did not sign a fee agreement. The Court held that Yanakakis was not entitled to any fee on the basis of unauthorized practice of law.

However, the court in Chandris did recognize a non-Florida lawyer might be compensated for representation in Florida, provided the Rules Regulating The Florida Bar are complied with. Rule 4-5.5 (Multijurisdictional Representation) allows for out-of-state lawyers to participate in Florida cases provided that a Florida lawyer is associated. However, there must be a reasonable basis for the out-of-state lawyer to provide services for a division of fees to be considered appropriate.

If the client resides in the home state of the out-of-state lawyer, it is more likely that a division of fees will have a reasonable basis of support, due to the

likelihood of out-of-state questions of law arising. On the other hand, if the client and the incident are Florida based, and the only function of the out-of-state lawyer is to “refer” the client, it is unlikely that a division of fees will be considered appropriate.

In the event a Florida lawyer “refers” a client to an out-of-state lawyer, The Rules Regulating The Florida Bar apply to any arrangement involving division of fees.

The determination of whether a division of fees with an out-of-state lawyer is appropriate requires fact specific, caseby-case analysis. Ethics Opinion 90-8 is perhaps the best resource to assist in evaluating any potential division of fees with an out-of-state lawyer. RG

Henry Lee Paul is former Bar Counsel who now represents lawyers in all matters before The Florida Bar and offers risk management services on all legal practice matters. He also represents applicants in all matters before The Florida Board of Bar Examiners.

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11

CRIMINAL LAW

COURT INTERPRETERS: A Changing Process

by Marisa Boysen

C

ourt interpreters provide an extremely important service to the judicial system and practicing attorneys within the judicial system. All certified interpreters must complete a two day workshop, a written examination, 20 hours of court room observation, an oral examination and a background check.

The rules for interpreters changed in April of 2016 and the Administrative Office of Courts is complying with the rule as follows: RULE 2.560. APPOINTMENT OF SPOKEN LANGUAGE COURT INTERPRETERS FOR NON-ENGLISH-SPEAKING AND LIMITEDENGLISH-PROFICIENT PERSONS (a) Criminal or Juvenile Delinquency Proceedings. In any criminal or juvenile delinquency proceeding in which a non-English-speaking or limited Englishproficient person is the accused, an interpreter for the non-English speaking or limited-English-proficient person shall be appointed. In any criminal or juvenile delinquency proceeding in which a non-English-speaking or limited English-proficient person is a victim, an interpreter shall be appointed unless the April 21, 2016 Florida Rules of Judicial Administration Page 152 of 190 court finds that the victim does not require the services of a court-appointed interpreter.

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RES GESTAE | JUNE 2016

(b) Other Proceedings. In all other proceedings in which a non-English speaking or limited-English-proficient person is a litigant, an interpreter for the nonEnglish-speaking or limited-Englishproficient litigant shall be appointed if the court determines that the litigant’s inability to comprehend English deprives the litigant of an understanding of the court proceedings, that a fundamental interest is at stake (such as in a civil commitment, termination of parental rights, paternity, or dependency proceeding), and that no alternative to the appointment of an interpreter exists. (c) Witnesses. In any proceeding in which a non-English-speaking or limitedEnglish-proficient person is a witness, the appointment of an interpreter shall be governed by the applicable provisions of the Florida Evidence Code. (e) Qualifications of Interpreter. A foreign language interpreter will be provided at public expense for criminal cases and juvenile delinquency cases.

The interpreter will be provided if the presiding Judge finds all of the following: the litigant cannot understand the court proceedings, that a fundamental interest is at stake and there is no alternative to the appointment of an interpreter.

To view the rule in its entirety please visit www.floridabar.org/TFB/TFBResources. nsf/Attachments/F854D695BA7136B0852 57316005E7DE7/$FILE/Judicial.pdf The Administrative Office of the Court will also provide an interpreter at public expense for the following; dependency, paternity, termination of parental

rights, domestic violence injunctions, Department of Revenue Child Support Enforcement Hearings, and mental health proceedings such as Baker Acts, Marchman Acts and Guardianships. The presiding Judge must make a finding that a fundamental interest is at stake.

To request a court interpreter for a Spanish-speaking client, the request must be made two business days, excluding weekends and holidays, prior to court. For all other languages seven days excluding weekends and holidays prior to court. The form to request an interpreter may be found at www. ca.cjis20.org/home/interpreterrequest/.

Notice of cancellation is required should scheduling change.

The assistant state attorneys will call the cases requiring the services of an interpreter first, if possible, at court proceedings. Court rooms typically share interpreters, which allows the interpreter to travel to all required court rooms as necessary. The interpreter’s office for Lee County may be reached at 239-5331580 email interpreters@ca.cjis20.org.

For more information please visit the website at www.ca.cjis20.org/home/ada/ interpreters_ada.asp. RG

Marisa Boysen has worked as a criminal defense attorney for 13 years, handling all types of criminal cases.

She is a board member for Lee County Legal Aid and co-chair of the Criminal Practice Section of the Lee County Bar. She currently works for Public Defender Kathleen Smith in Lee County.

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JUNE 2016 | RES GESTAE

13

DATA BREACH A Patient Rights Primer

By Bill Thompson, Jr.

O

n Nov. 13, 2015, the FBI notified 21st Century Oncology that more than two million patients’ confidential records and data in 21st Century’s possession and control had been collected and sold by criminals using the internet. Its patients were not notified for three months or more. This was not the company’s first data breach: in 2013, a 21st Century employee caused a similar data breach of patient records.

21st Century also recently settled a False Claims Act filed by the Federal Government for almost $20 million.

On Dec. 19, 2015, a truck carrying whole and unredacted confidential patient records from Radiology Regional in Fort Myers dumped nearly a half million patients’ records onto Fowler Avenue, where they were blown throughout the city. Despite Radiology 14

RES GESTAE | JUNE 2016

Regional’s awareness of the data breach, the affected patients were not notified for several months.

Since the passage of HIPAA (the 1996 Health Insurance Portability and Accountability Act — the most sweeping health change since ERISA) and ACA (the 2010 Affordable Care Act, often referred to as “Obamacare”), health care providers were directed specifically by statutory, administrative and professional rules to collect, maintain and protect electronic medical records, or EMRs. These data and records invariably contain sensitive financial and identity data, as well as confidential medical records. Protection from breach is a mandated priority. The EMR safety system only works when honored by best practices that are laid out by statute — not circumvented or recklessly disregarded.

Breach of contract claims will usually arise out of documents and agreements contained in the patient records of the facility. These signed agreements typically incorporate HIPAA by reference if not by specific citation. They can form the basis for pleading a simple cause of action for breach of a written agreement to comply with applicable law by maintaining the privacy of the Plaintiff ’s data.

Florida’s Constitution also guarantees our privacy and provides varying common law remedies for invasion of privacy in State Court. See Doe v.

Beasley Broadcast Group, 105 So. 3d 1 (Fla. 2nd DCA 2012).

While HIPAA and Florida’s version of that Federal Law (FIPAA) do not provide a civil remedy, they are evidence of best practices and standard of care that provide a foundation for jury

instructions on negligence. The laws also incorporate the Federal and State Unfair Trade Practices Acts that provide civil remedies that include cost and feeshifting provisions.

In addition, Florida recognizes the statutory (including administrative rules) duty of health care providers to properly maintain medical records.

See Public Health Trust of Dade County v. Valcin, 507 So. 2d 596 (Fla. 1987).

While Valcin has been clarified (it should no longer be used to support an independent cause of action for spoliation), the doctrine of spoliation is alive and well in the State. Valcin’s burden of proof shifting presumptions are a powerful tool for claimants where the health care provider negligently loses, destroys or discards records that prejudice the ability of the Plaintiff to fully prosecute their claim. It can and will likely be argued by data breach victims that releasing the protected records or allowing unpermitted access to the records can also result in a Valcin instruction under proper circumstances.

When the confidential medical and financial data of almost three million local patients is breached, that is a matter of serious concern for the entire community. Many of these patients have been subjected to life-altering identity theft and fraud since these data breach incidents. False IRS returns were created for the purpose of stealing refunds.

Funnel accounts were created for the purpose of running stolen and illegal

funds and purchases. False credit and bank accounts were fraudulently created, damaging credit and injuring innocent lives.

Florida health care reimbursement and delivery systems operate in opaque secrecy. Informed consumers need to see the charges billed and the record of payment. They need to understand the relative position of collateral source payors. They should know how and why hospitals and doctors route billing through the payment channel the way they do. Health care providers should clearly and simply identify how patient insurances are being handled. For instance, what the hospital is billing, who they are billing it to and whether there are more cost efficient alternatives.

In many cases, local hospitals deliberately avoid charging valid insurance if they think they believe they can recover more elsewhere by ignoring available insurance.

Patients have a right under Amendment 7 in Florida’s Constitution to know their health care provider’s incident history. Like billing practices, patients have a right to be armed with information about the security of their information. Any data breach deprives patients of their consumer rights in the health marketplace.

Patients must protect and defend their rights when they are violated.

After decades of Florida “tort reform,”

limiting patient rights, the Supreme Court opinion in Estate of McCall v. United States, 134 So. 3d 894 (Fla. 2014), reversed the legislatively imposed caps on medical malpractice damages. This may be the beginning of a broader movement to secure those rights. RG

Bill Thompson Jr. is Plaintiffs’ counsel of record in the data breach class actions Bellows v.

Radiology Regional, Florida Circuit Court Twentieth Judicial Circuit (Fort Myers) 16-CA-000629 and Trelease v. 21st Century Oncology, United States District Court (Middle District, Fort Myers) 216-CV-258-FTM-99-MRM. He was also the solo trial and appellate counsel in the invasion of privacy claim appealed to Florida’s Second District Court of Appeals prior to settling for a confidential amount, Doe v. Beasley Broadcast Group, 105 So. 3d 1 (Fla. 2nd DCA 2012).

JUNE 2016 | RES GESTAE

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Advertiser's Spotlight

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She had a long history in the insurance industry, and Massie was a pharmacist, medical software developer, and successful entrepreneur in other endeavors. The pair’s combined experience forms their focus on overall asset protection services, which finds great synergy with law firms who serve their clients with estate planning, insurance planning and creditor protection. Attorneys who work with professional athletes, or anyone with NFL player clients, will also take note of Massie’s

designation as an NFLPA Registered Player Financial Advisor and as a Certified Financial Planner professional™.

LCBA members are probably familiar with Massie & Reilly, as Reilly is a frequent attendee of the organization’s luncheons and events. Realizing the mutual referral benefits with area attorneys, the firm also supports many bar events, plus this magazine, which serves as a reliable revenue source for the LCBA. Those planning to attend the Key West trip on June 11 and 12 have Massie & Reilly to thank for making it more affordable; because of the firm’s sponsorship, each Key West Express ticket is $50 off the normal price and parking is free.

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make themselves available to lawyers for presentations to current and prospective clients. They are currently preparing for a joint presentation with the Law Firm of Henderson Franklin titled “Small Business Survival Guide: Lawsuit Avoidance & Asset Protection” to be presented in the fall. Reilly and Massie will be joined by Henderson Franklin attorneys Carlos Kelly and Suzanne Boy to cover such topics as employment law, worker’s compensation, fringe benefits and tax-advantaged asset protection. If you would like to have them present to your clients, the duo of LCBA supporters are available to help your firm tailor a presentation to benefit your own shareholders and employees or clients. Call (239) 768-2171 for more information. RG

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17

Legal Lens

YLD Miniature Golf Tryathlon On April 23, the YLD had a blast hosting the second leg of the Tryathlon. The event gave kids from the Children’s Network of Southwest Florida the chance to try something new: mini-golf!

Q&A with the 2DCA As part of the annual LCBA Law Week activities, local high school kids got to sit in on oral arguments with the Second DCA judges on May 6.

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19

Contemplating Miranda Celebrating 50 years

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MAY 2016 | RES GESTAE

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The Miranda rights are as American as apple pie – or television. A majority of us would be hard pressed to recall or imagine a time that didn’t include our favorite TV detectives delivering the phrase “can and will be used against you in a court of law” with a signature artistic flair. Like many protections of individual freedom that are codified in the Bill of Rights, it can be easy to take now-venerable landmark decisions for granted. Therefore, Res Gestae has seized on Miranda’s 50th anniversary this month as an opportunity to reflect on the legacy of a decision that not only expanded protections on individuals’ liberty and civil rights, but captured the American imagination through the magic of television.

The spirit and the letter Joining an impressive litany that includes Brown v. Board of Education, Gideon v. Wainwright and Mapp v.

Ohio, Miranda v. Arizona characterizes a U.S. Supreme Court operating at the height of its judicial power between 1953 to 1969. Simply put, according to Dawn L. Drellos-Thompson, founding attorney at Bonita Springsbased Compass Law Firm, PA, “The Warren Court’s decision in Miranda, like those in Gideon and Mapp, gave citizens the meaningful and active protection that the Bill of Rights had intended from unlawful government intrusion, specifically from selfincrimination and the right to counsel while under the threat and intimidation of arrest.”

Fundamental though all that might seem, it isn’t always so. Christopher 22

RES GESTAE | JUNE 2016

Cosden, a Fort Myers attorney focusing on criminal, appellate and constitutional law, said, “First off, one of the results of the Miranda Decision was a great public information campaign run mainly by the entertainment media.” He asserted that, on account of the current state of civics education across the nation, the average civilian on the street would have difficulty telling a pollster what the Bill of Rights is, never mind naming some of the amendments it contains. That same individual could probably rattle off a good portion of the Miranda rights, however. That’s a good thing. But does it put law enforcement and the Americans Christopher Cosden it serves and protects on a level playing the Supreme Court the last few times it field? “Absolutely not,” said Cosden. “It was tested,” he said. “That ruling, as with never has and it never will.” many other laws and rulings, has failed As long as “probable cause” is to evolve with society.” defined as “reasonable suspicion based on articulable fact,” fact is subject to The ghost of Gideon molding by the articulator and the articulation. Once in custody, though, Within the spirit of Miranda lies the the spirit of Miranda demands that a ghost of Gideon. According to the man suspect must be informed of his or her who argued Florida’s side against the rights prior to gaining a confession. Is automatic right to counsel, Miranda it always honored? The makeup and has more teeth. Bruce Jacob is Dean volume of Cosden’s appellate actions Emeritus and a professor at Stetson might suggest otherwise.

University College of Law. If the name Chief Dennis Eads of the Fort Myers sounds familiar to Tampa-based folks, Police Department suggests that a half it may be because the American Inn century is a long time to keep Miranda of Court there was renamed after enshrined. “It barely made it through him a decade ago. To most attorneys, it is his association with the Gideon case that likely prompted much discussion and debate back in law school. Jacob would rather focus on more current associations – “It seems to me the part of my life when I was an appellate prosecutor for the state was so tiny compared with the time I spent working on the other side, the defense side. It’s kind of silly.” His bio on Stetson’s website reflects a curriculum vitae replete with a truly humbling accounting of grand accomplishments and honors. Regardless, he generously indulged this magazine’s request for on mps Tho llosDre some perspective.

L. Dawn

t court Bruce Jacob as a law student in moo

Florida passed a law setting up a defender’s office in every circuit. More, it enabled any private lawyer to volunteer to be a special assistant public defender on a pro bono basis. “So I signed up the day that the law went into effect,” recalled Jacob. Ever since, he has provided free legal work for criminal defendants and prison inmates. His major regret is that Gideon has proven more aspirational than practical, which could possibly prompt a debate about the Warren court’s body of work as a whole.

More than words

of Law

Whereas Drellos-Thompson earlier characterized the rights afforded under Miranda as “meaningful” and “active,” she cites a lack of limits on prosecutorial power, meaningful sanctions for Brady violations and – most importantly, adequate public defender funding – for hobbling society’s hopes for Gideon.

Jacob concurred, “I think Miranda’s been very successful. I don’t think Gideon’s been all that successful because we just don’t have enough manpower to provide the kind Dean Emeritus Bruce Jacob of representation that Gideon contemplated.” That’s the thing about precedents; even when the young child. As Regional Counsel for the Second District Court of Appeals, court goes “the whole way,” we do well she defends indigent clients when the to remember they sometimes only Public Defender’s office has a conflict in serve to provide a model for future criminal cases. She said, “Having lived progress. Where would Miranda be in a country where these freedoms don’t without Gideon? That’s the kind of exist, I take Miranda very seriously perspective we gain over a half century because I understand what life is like of the decision’s application and legal without the protection of civil liberties.” challenges launched against it.

Neymotin was invited back to the Even with its perceived lag in former Soviet Union to help implement keeping current with modern the modern rules of criminal procedure realities, Chief Eads acknowledges in Ukraine. the basic tenets of Miranda have lead With its rhetorical parallelism and to improved policing. “All of our list of absolutes, it’s only natural that custodial interviews are audio or video Miranda would capture the imagination recorded,” he confirmed. Rather than of TV execs and consumers - and the that level of documentation being a world. According to our sources, police burden, he said, “It has been a great still get confessions, contrary to early resource to law enforcement over the fears from some in the law enforcement last few years, as have body cameras.” community.

However, he said many agencies are Legal experts like Cosden and Jacob not so fortunate in terms of having the suggest that routine videotaping of all necessary resources, “and you might end police interrogations from the reading up with an unfunded mandate that can of the rights to the end of the confession cripple an agency.” is the way to more fully honor the spirit Another kind of perspective is of Miranda. All that’s missing is the gained from considering legal systems political will of jurisdictions to make worldwide that don’t enjoy the benefit good on this year’s Law Day theme: of a Miranda. Ita Neymotin was born Miranda, more than words. RG in a totalitarian country, the former Soviet Union, and was lucky enough to come to America when she was a

Photo coutesy of Stetson University Coll ege

As a young lawyer, Jacob was assisting the Florida Attorney General when he was asked to handle the Gideon case. “We all knew that this was probably the case that was going to be used to overturn the previous law, which was Betts v. Brady.” That decision held that only the presence of special circumstances such as illiteracy, youth or lack of proficiency in English would entitle an indigent suspect charged with a felony to be appointed counsel. “In Gideon, the court went the whole way,” Jacob said. He had already embarked on a new position with Holland and Knight when the 1963 ruling came down two months later, mandating the appointment of counsel to any indigent defendant in a felony case.

JUNE 2016 | RES GESTAE

23

Legal Lens

Law in the Mall About 150 members of the public received free legal advice during the 23rd annual Law in the Mall. Thanks to the volunteers who gave up their Saturday on April 30 for a great community service project!

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Legal Lens

LCBA After-Hours Social We enjoyed one final get-together for a happy hour at Spirits of Bacchus’ original location on April 28.

Photo credit: Jim Jett Photography

Honorable Devin George Investiture On April 22 the Honorable Devin George was officially welcomed as a new judge on the Lee County Bench.

Photo credit: Jim Jett Photography

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Legal Lens

Law Week Awards Luncheon Community leaders, dignitaries and LCBA members recognized heroic law enforcement officers, an outstanding civics educator and the 2016 recipient of the prestigious Liberty Bell Award during the Law Week Awards on May 6.

Photo credit: Jim Jett Photography

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Legal Lens

Law Week Awards Luncheon ASA Richard Montecalvo presented Officer of the Year Awards to LCSO Deputy Ricardo Galdames, CCPD Officer Stephen Craigin, FMPD Detective Jesus Ramos and Sanibel PD Officer John Sherwood. James Daumer of Challenger Middle School was named the Dr. James A. Adams Teacher of the Year. Cynthia Shafer earned the prestigious Liberty Bell Award for her work as founder of GAL’s Bedz for Kidz.

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RES GESTAE | JUNE 2016

Aloia Roland & Lubell, LLP Arend & Sisk, P.A. Associates and Bruce L. Scheiner, P.A. Bergermann Law Firm Bonita Springs City Attorney’s Office Boyle Gentile & Leonard, P.A. Burandt, Adamski & Feichthaler Buchanan Ingersoll & Rooney PC Calvo & Calvo Coleman & Coleman Cole, Scott & Kissane, P.A. Cole Scott & Kissane, P.A., Bonita Springs Office DeBoest, Stockman, Decker, Hagan, Cheffer & Webb-Martin, P.A. Florida Rural Legal Services Fort Myers City Attorney’s Office Fried & Fried, P.A. Goldberg, Racila, D’Alessandro & Noone, LLC Goldstein, Buckley, Cechman, Rice & Purtz, P.A.

Green, Schoenfeld & Kyle, LLP Grossman Law & Conflict Management Hahn Loeser & Parks LLP Henderson, Franklin, Starnes & Holt, P.A. John Webb Legal Group, P.L The Law Offices of Kevin F. Jursinski, P.A. Knott Ebelini Hart Kuhn Law Firm, PA Kushner & Kushner Lee County Legal Aid Society, Inc. Levins & Associates, LLC Maughan Law Group McNamara Legal Services, P.A. McQuagge Law Firm Men’s Rights Law Firm North Law Firm, P.A. O’Halloran & O’Halloran, Attorneys at Law Osterhout & McKinney, P.A. Parvey & Frankel Attorneys, PA Prather and Swank, P.A.

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31

The Dish

COWBOY CRAB AND SEAFOOD

If

you’re at a fish camp and haven’t seen hide nor hair of your trusty canines in a good long while, one sure way to gain their attention is to drop that first fresh, battered fillet into a kettle of bubbling oil. But it can also be distracting, and dangerous, to have all that doggy energy bounding around your cooking station. What to do? Roll up some balls of that cornmeal batter you’re using and fry it up quick! Then toss it to the pups to get them to shut up (after a moment of cooling, of course).

Some version of this story is the probable origin of the term “hush-puppy.” Its first recorded use was in 1899 and since then, we’ve gotten wiser about dog training and the concept of reinforcement. But we still enjoy that tasty treat as a side for our favorite seafood delicacies, such as those offered at Cowboy Crab and Seafood, located in North Fort Myers just before the “old bridge.”

Treatment of seafood can run the gamut from pricey and precious to simple and savory. There’s a place for most of it.

But when you want to crack open some crustaceans on a brown paper-covered picnic table, I have recently discovered two easy and affordable options: grab

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RES GESTAE | JUNE 2016

a few boxes to go from Cowboy Crab and Seafood and go have a picnic, or have a seat right inside the premises of this simple shack. Said picnic tables are there, and so is friendly service and a quirky atmosphere that’s one part eat-in fish market and one part shrine to the Dallas Cowboys (in case you were wondering about the name).

The names of several of the menu items also do tribute to “America’s Team,” depending on how you feel about it. Whatever your opinion of the team or the players, many seafood fans will delight in the Jerry Jones, with four blue crab clusters, 10 large shrimp, a lobster tail, corn and potatoes for

a reasonable $22.

Most of the establishment’s business is done in to go orders, but a lunch that won’t require a sink bath before going back to work could include the Texas-sized shrimp poboy or grouper sandwich, both featuring a lightly battered and fried treatment of the starring character, served with hushpuppies or fries and chips. The Fried Louie is a feast of 10 fried shrimp, four fried scallops, a lobster tail and yellow rice.

Blue crabs (eight pieces), snow crabs (three clusters) and shrimp (20-count) can be ordered a la carte. A choice of Old Bay, butter garlic (a major reason for the paper towel rolls on the tables), a spicy blend or J.O. Seasoning are available for the steamed seafood selections and the combinations, which include permutations of crawfish, crab cakes, mussels, clams and accompaniments like boiled eggs and beef sausage. Large trays are available for parties.

Cowboy Crab and Seafood is one of those locally owned places that is too easy to overlook. The building is nowhere near posh, and the location is likely not on a regularly traveled route for many of us. It has its die-hard fans, however, as can be seen with the rush of to-go orders at lunchtime.

It opened as a fish market in 2013 by the “Pop” enshrined in the Pops Special (two snow crab clusters, 10 large shrimp, two boiled eggs, corn and potatoes), who now is gone, sadly. I hope this little place that is big on good seafood and small on fancy will stick around for years to come for the days one simply must break open some shells and delight in the sweet meat within. RG

Cowboy Crab and Seafood 1084 N Tamiami Trail, Nort Fort Myers (239) 599-2470 CowboyCrabandSeafood.com Sunday: 11 a.m. - 6 p.m.

Monday - Thursday: 10 a.m. - 8 p.m.

Saturday: 10 a.m. - 9 p.m.

Sara Fitzpatrick Comito is the Communications Editor for CONRIC PR & Marketing | Publishing, and associate editor of Res Gestae magazine. For suggestions and comments on this regular feature, contact Sara at Sara@ConricPR.com.

JUNE 2016 | RES GESTAE

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From the Bar Holly E. Cosby, Esq. Holly Cosby grew up in a family of Realtors and landlords, but because she wanted to be a doctor, she started her college career intending to go to med school. It wasn’t long before her father sat her down and said, “We need an attorney in the family.”

Pursuing her passion for real estate, she switched majors and earned her undergraduate degree in English at Florida State University. In 2000, she earned her J.D. from the University of Miami School of Law. The Lee County native attended Alva Middle School and Riverdale High School. (Charles Cosby, the man she would later marry, and his parents are also Lee County natives, and she’s proud of the fact that her husband was the leading score-holder in basketball at North Fort Myers High School, a record yet to be broken.)

Charles went with her as she pursued her law school degree in Miami and they were married after her second year. The couple often returned to Fort Myers, where Holly shadowed law professionals at the Lee County Attorney’s Office.

Out of law school, she worked for three years at Chico’s corporate offices in Fort Myers as a real estate attorney. In 2003, she opened her own practice, the Law Office of Holly E. Cosby, P.A., with a focus in residential landlord representation, leasing, evictions and related documents in Lee County, and later as Value Adjustment Board Counsel for Lee, Hendry and Glades counties.

She was selected by the Calusa chapter of the elite Inns of Court, and served as a barrister for four years.

“I love people who truly love and respect the practice of law,” she said, noting that she is most flattered when another attorney refers a client to her because it confirms trust in her abilities.

Today, she’s a mother of two: CJ, 13; and Jasmine, 11. With children in gifted programs at school, she’s an active, full-time mom and a “semi-full-time attorney.” “Being a mom means being present so the kids have a better life experience,” she said. “And as a mom, my children are my priority.”

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JUNE 2016 | RES GESTAE

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From the Bar Justin Stockman, Esq. Seven years ago, on Justin Stockman’s first day of work, senior partner and renowned trial lawyer Patrick Geraghty told the young lawyer that he was expected to know the law and discuss strategy. It was Stockman’s dream come true.

“Growing up listening to my father recall the battles that raged in the courtroom, I knew I wanted to do litigation,” Stockman said.

He works in the world of commercial litigation with Geraghty, Dougherty & Edwards.

Correction: that’s Geraghty, Dougherty, Edwards and Stockman as of this year.

Memorable cases include one against the Seminoles involving challenging 70 years of juris prudence and the origins of Native American sovereign immunity — and one client’s rights of access to a postage stamp of residential property in the middle of the Fish Eating Creek Corridor in Hendry County.

For six years, Stockman has served on the board of the Boys & Girls Clubs of Lee County.

He recalls one child with anger issues who missed the club two days in a row. Following protocol, the director called the child saying he wanted him to come back. The child said he thought he was not wanted and never knew anyone ever missed him.

“When he came back, he was a different boy,” Stockman says. “All it took was that one call — someone to say, ‘I’m here and I care’ — and it probably changed him forever.”

Justin and Kayla Stockman have a 17-month-old son, Ace, and are expecting their second son in July.

As a new partner in the firm, he’s proud to see his name “up there with the top litigators I grew up admiring: Patrick Geraghty, Tom Dougherty and Berk Edwards. I’m extremely blessed to be where I am this early in life.”

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'Nibbling on sponge cake, watching the sun bake'

LCBA is Key West Bound

On June 11 LCBA members will be heading south on the Key West Express for a weekend of tropical adventures in paradise. Enjoy breakfast and a cocktail as we see dolphins on our way to the Keys, arriving around noon. Thanks to Massie and Reilly for getting us a great deal on the roundtrip tickets to Key West and free parking too! Upon arrival members will enjoy a lunch – rooftop at the Schooner Wharf – before checking in to the hotel of their choice. There is sure to be a happy hour sponsored by Hollander & Hanuka snuck in there somewhere.

Join us aboard the Key West Express and enjoy a weekend in the Keys.

June 11 - 12, 2016

Saturday, June 11th ~ Boat departs Fort Myers at 8:30 a.m. Once in Key West, enjoy lunch at the Schooner Wharf Sky Deck, a sunset sail and a Duval Crawl.

Sunday, June 12th ~ On your own. Special deals for snorkeling, diving and area attractions.

Boat returns to Fort Myers at 9:30 p.m.

A trip to Key West would not be complete without a pub crawl of Duval Street to enjoy local restaurants, bars, live music and a taste of the colorful local character as you search for your lost shaker of salt. Be sure not to blow out your flip flop as you maneuver among the feral poultry.

On Sunday, members will enjoy time on their own to scuba dive, snorkel, sail, shop, visit a museum (all the cool cats hang out at the Hemingway Home!) or art gallery, or just relax on the beach. You might not want to go back home! Don’t know the reason, stayed here all season…

Thank you to our Key West Sponsors: Garvin Law Firm (with offices in Key West and Fort Myers) Hollander & Hanuka, Attorneys at Law Massie & Reilly CPAs, PLLC

Photo credit: VCB

Join our LCBA group for a sunset sail aboard the Spirit of Independence sponsored by the Garvin Law Firm. The two-hour cruise with food and drink includes breathtaking views of Sunset Key, Mallory Square, the U.S. Customs House and Fort Zachary Taylor State Park.

$99 Roundtrip with Key West Express Rooms at Waldorf Casa Marina and The Reach are unavailable. If you would like to be placed on the waiting list contact Lisa Poulin at 239.334.0047.

Contact Lisa Poulin at 239.334.0047 or admin@leebar.org to reserve your spot!

Sunset photo courtesy of April Bordeaux

JUNE 2016 | RES GESTAE

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On the Bench Hon. Amy R. Hawthorne This is an exciting time in the life of Judge Amy Hawthorne.

As an attorney, she practiced in the family law area for 14 years and, in 2012, was appointed to the Twentieth Judicial Circuit Court by Gov. Rick Scott. She was initially assigned to Hendry and Glades Counties and was then transferred to Charlotte County, where she sat on the criminal docket for two years. In 2015, she transferred to Lee County and currently presides over family and injunction cases.

Although she has a passion for criminal law, she says this is an exciting time in the evolution of family law.

“There can be an overlap of (family and criminal law) issues, of course,” she notes, “but on July 1, I’m going into a brand new docket for our county.”

Called the Unified Family Court Docket, the premise of this new docket is “one family, one judge." The unified docket attempts to avoid the duplication of effort in matters involving divorce, dependency, paternity, delinquency and/or domestic violence injunction cases by assigning one judge to the family.

“Now we can coordinate services without duplicating things,” she said — for example, coordinating parenting plans in both divorce and dependency cases.

She, Judge Robert Branning and Judge John Carlin have “been working on the unified docket for about a year. In the most recent months, we’ve had meetings with the family bar as well as the dependency and delinquency stakeholders. It’s brand new to everyone,” she says. “I’m excited to be one of the first judges to sit on the Unified Family Court docket in Lee County.”

Unified family court isn’t the only expected birth on the horizon in July. Judge Hawthorne’s daughter and son-in-law, who live in a small town in Nebraska, are expecting their first child, a boy. “We’re very excited,” she said.

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In The News Alexandra Deane has joined Grant Fridkin Pearson, P.A., concentrating in the areas of civil litigation and business law. She has practiced law in Naples since 2012 and has experience in securities arbitration, real property transactions and land use issues.

Deane holds a J.D. from Vanderbilt University Law School and a B.S., magna cum laude, from Washington University in St. Louis. While in law school, Alexandra was an active board member of Moot Court and won the Lightfoot, Franklin & White Best Oralist award for Moot Court competition. She served as a judicial intern for Florida First District Court of Appeal Judge Lori S. Rowe. She also holds a Florida Real Estate Sales Associate License.

Fort Myers attorney Patrick E. Geraghty has formed Geraghty Mediation Service, located at 1531 Hendry Street. He is Florida Bar Board Certified in Civil Trial Law and certified in Civil Mediation. He has more than 40 years of civil trial experience in personal injury, wrongful death, commercial and business litigation, and Federal civil rights issues. Information can be found at his new website, www.geraghtymediation.com.

Geraghty said, “Pre-trial mediation can save the parties a great deal of angst, time and cost by reaching an earlier resolution of differences.”

Ryan W. Doyle, Geraldo F. Olivo III and David L. Ciccarello have been named partners at Wilbur Smith Attorneys at Law. Doyle focuses in the areas of state and federal criminal defense, criminal appeals and complex litigation. He earned his J.D. from St. Thomas University School of Law in 2008 and a B.S. from FGCU in 2005. Olivo earned a J.D. from Marquette University Law School in 2008 and a B.S. from the University of Florida in 2005. Ciccarello earned his J.D. from Stetson University College of Law in 2009 and a B.S. from Florida State University in 2005.

Stefan Hustrulid, a freshman at Florida SouthWestern Collegiate High School, has been named the winner of the Texting and Driving PSA Contest for local high school students sponsored by Goldstein, Buckley, Cechman, Rice & Purtz. The contest was part of the law firm’s Put the Phone Down campaign, which began in 2013.

The law firm enlisted the help of high school students to help bring awareness to young drivers on the alarming statistics of distracted driving caused traffic crashes. Lee, Collier and Charlotte County high school students were invited to submit a video PSA to help make people aware of the dangers of texting and driving.

The Lee County Association for Women Layers honored Circuit Judge Lauren L. Brodie at its 2016 Judicial Appreciation Reception on May 5, held in association with the LCBA’s Law Week activities. Judge Brodie was named Woman Lawyer of the Year by the Collier County Women’s Bar Association (CCWBA) in June of 2015 for displaying excellence in her career, overcoming stereotypes and promoting the status of women in the legal profession. In May of 2015, she was selected as an Extraordinary Woman Leader in the State of Florida by the Florida Association for Women Lawyers (FAWL) for her accomplishments as a woman lawyer displaying vision, courage and passion in her community. She was chosen for her dedication and commitment in creating Drug Free Collier, where she served as its first president.

Michael Lehnert of Henderson, Franklin, Starnes & Holt, P.A., has been appointed treasurer of the Southwest Florida Real Estate Council. The council’s local real estate attorney members foster collaboration among Southwest Florida real estate professionals and inform the general public of the value real estate attorneys bring to bring to transactions.

Lehnert provides legal counseling to clients with regard to real estate matters, including homeowners’ and condominium association governing documents, commercial and residential sales and leases, development and survey matters. The 2008 Bishop Verot High School graduate is a member of the Big Brothers Big Sisters of the Sun Coast Board of Directors.

See more LCBA members in the news at www.leebar.org/in-the-news, and remember to send us your news at resgestae@leebar.org.

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