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NOVEMBER 2016

IMMIGRATION OVERHAUL Security and opportunity for all?

SOMETHING IN THE WATER Young attorneys become captains for environmental change THE OFFICIAL AWARD-WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION


Contents On the cover: Leland Garvin, Blake Hampton, PJ Scheiner Cover photo courtesy of Jim Jett Photography

22 features 22 Something In The Water Young attorneys become captains for environmental change

by Sara Fitzpatrick Comito

30 departments 6 Letter from the President

20 Legal Lens

by Scott Atwood, Esq.

8

Letter from the Executive 28 Legal Lens Bench Bar Gala Director

by David Seitz

10 Calendar of Events

New Lawyers' Induction Celebration

30 The Dish

The Farmer's Market

10 New Members

32 Pro Bono Awardees

12 Ethically Speaking

34 On the Bench

14 Solo & Small Firm

35 From the Bar

36 Legal Lens

by Henry Lee Paul, Esq.

Practice Section

Train your marketing for the sprint and the endurance race by Conor Foley, Esq.

16 Legal Lens

LCBA Luncheon & CLE

18 First-Person Perspective

4

Overhauling Our Immigration System

by Indera DeMine

RES GESTAE | NOVEMBER 2016

Honorable John L. Burns Agnieszka Osowicka, Esq.

Constitution Week - Speakers in the Schools

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19 42 39 13 27 37 36 10 21 17 33 BC IFC 37 21 15 33 21 38 41 15 7 27 IBC 19 11 13 32 37 27 7 15 17 9 41 39 19 34 35 3 13 39 9 5 33 31 20 17 13

38 100 Club 40 In the News

News and Happenings

Our advertisers support the LCBA. Please do your best to support them in return.


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Letter from the President When Judge Silberman of the Second District Court of Appeals addressed the LCBA at our October 5th Pro Bono Awards luncheon, he said the wish to make the world a better place is at the heart of most every attorney’s decision to pursue the profession. That’s what I heard, anyway – I was checking out colleges with my daughter at the time. Kelly Fayer got a small taste of her presidential year ahead as she pulled this luncheon together and hosted it in my stead. From all accounts, she did it with her usual finesse. In this issue of Res Gestae you’ll find a list of our members who make justice accessible to those who otherwise could not pay for the expertise of an attorney. Carolyn Fabrizio of FRLS traveled all the way from Fort Pierce to hand out awards to folks who are really not motivated by awards. I’m sorry I missed it. At the end of September, though, I got to oversee the presentation of two very special honors at the Bench Bar Gala. Valet parking at the red carpet on First Street and a cocktail hour hosted by Martin Law Firm set the stage for an illustrious evening that featured the musical stylings of PJ Scheiner’s wife’s father’s band (who knew?!) and their distinctive costume changes! We’re grateful to all the sponsors, including Henderson, Franklin, Starnes & Holt, P.A.; Cole, Scott & Kissane, P.A.; Strayhorn & Persons, P.L.; John Webb Legal Group; Pavese Law Firm; Roetzel & Andress, P.A.; Associates and Bruce L. Scheiner; and Von Ahn Associates, Inc. The food was superb, the attorneys and judges cleaned up remarkably well and the Sidney & Berne Davis Center was just a gorgeous, historic venue. The highlight of the evening, though, was a new tradition – the Bench Bar Awards. Senior Middle District Judge John E. Steele was honored for his career of service in the building that served as our county’s first federal courthouse. In an emotional ceremony, Cynthia Duff of Title Sponsor CopyLady delineated the many reasons Miguel Fernández deserved the LCBA Decorum Award. In these pages, you’ll find pictures from a recent swearing in of new attorneys, who were later feted at a happy hour by the YLD. It makes me smile to see Walter Sheppard in a picture for the restaurant review. Naturally, young attorneys are taking up more and more pages, as they carry on and expand on the work of the 1963 LCBA president and his contemporaries and make their mark pro bono publico. We have a lot to be proud of. As of this writing, for instance, the LCBA was preparing for its Veterans and First Responders Legal Clinic. It’s also important to take a break, and to enjoy the fall air. Thanks as always to the Smoot family for offering us their beautiful property for the Bar-B-Q. Pics to come next issue!

LEE COUNTY BAR ASSOCIATION ADMINISTRATION

Executive Director - David Seitz 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 Indera DeMine, Esq. PRO BONO Mary A. Cosmo, 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. 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.

Scott Atwood, Esq. scott@atwoodlawfirm.com | 239.898.4130 6

RES GESTAE | NOVEMBER 2016

TORT LITIGATION Preston John (PJ) Scheiner, Esq.


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Letter from the Executive Director Happy November! As Thanksgiving approaches, I’m reflecting on the time and effort our member attorneys contribute to their pro bono cases here in Lee County. Before taking over as Executive Director, I was only peripherally aware of a “legal gap” between the income classes. Now I have seen firsthand that this gap exists, and it is deep. The volume of leads and calls coming in to the Lee County Bar Association lawyer referral service clearly illustrate this need in very stark relief. We receive hundreds of calls a week looking for legal help. Through our partnerships with Florida Rural Legal Services and Lee County Legal Aid Society, we are able to direct many of the cases that qualify as pro bono work to the right organizations. However, the need remains. If you or your firm can lend your time, talent, or treasure, please reach out. One case to you can mean a world of difference in someone’s life. Looking forward, we have some great events coming up. The LCBA Family Bar-B-Q is going to be this November 5th. Please join us for this annual tradition featuring lots of food, live music and outdoor fun. We have our holiday party on December 15th at the Veranda, a beautiful restaurant that has long supported the LCBA. December 16th brings a rare opportunity to gain insight and wisdom directly from Florida Supreme Court Chief Justice Lewis. He’ll be serving as the keynote speaker for a professionalism seminar you won’t want to miss at the Crowne Plaza. We are grateful to professionalism mavens Ita Neymotin and Henry Lee Paul for making this happen! It’s not only the season for giving thanks, but also voting season! Lisa and I have mailed out the ballots for the 2017 member at large seats for the LCBA Executive Council. Please either return mail it in the enclosed envelope or drop the sealed ballot off at our offices over the Edison and Suntrust bank drive-thrus downtown. In this issue of Res Gestae you’ll find stories of how some of our members are taking their passion to the voting booth on Nov. 8. We hope you’ll do the same, as democracy depends on your participation. Then we can all give thanks the election is finally over. And if you have an idea for a story in these pages, won’t you send a note to resgestae@leebar.org? That’s the same address to email us about the one pro bono case I hereby challenge you to accept before the end of the year. I would also be thankful for your participation as a sponsor of an upcoming event. I'll be more than happy to find an event or program that works for you and your firm. Thanks!

David A. Seitz, Executive Director DSeitz@leebar.org | 239.334.0047 8

RES GESTAE | NOVEMBER 2016

SERVING THE CITIZENS AND LEGAL COMMUNITY OF LEE COUNTY SINCE 1949

239.334.0047 resgestae@leebar.org

Staff Box PUBLISHER Connie Ramos-Williams 239.690.9840 ASSOCIATE EDITOR Sara Fitzpatrick Comito CREATIVE DIRECTOR April Bordeaux ADVERTISING DIRECTOR Linda Fiore 239.690.9840 CONTRIBUTING WRITERS Scott Atwood, Esq. David A. Seitz Henry Lee Paul, Esq. Indera DeMine, Esq. Conor Foley, Esq. Sara Fitpatrick Comito BILLING INQUIRIES 239.334.0047 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.

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Calendar of Events Some dates for 2016 Section Meetings have not been confirmed – check our website for details!

November 4

November 10

December 15

Noon – 1 p.m., Golden Fork Café, 3086 S. Cleveland Ave., Fort Myers. No registration required.

7:30 a.m., Fort Myers City Pier, 1300 Hendry St., Fort Myers. Part 3 of 3 of the Personal Injury Primer Series presented by Ty Roland, Esq. and Evan Lubell, Esq. No registration required. Free breakfast included.

6 – 8 p.m., The Veranda Courtyard, 2122 Second St., Fort Myers. Register online at www.leebar.org.

Young Lawyers Division Meeting

November 5

Lee County Bar Family BAR-B-Q

Noon – 5 p.m., Smoot’s property, 6250 Jackson Rd., Fort Myers, FL 33905. Adults $25, children 7 – 12 $10; children under 6 free. Register online at www.leebar.org.

November 9

Gen Civil & Business Litigation Practice Section Meeting

Noon – 1 p.m., Lee County Justice Center, Judge Krier’s Hearing Room, 4-H. Topic: How to Build and Use a Trial Notebook. Panelists: Scott Beatty, Esq. and Jeff Garvin, Esq. No registration required. 1 hour CLE credit approved. RSVP to carlos.kelly@henlaw.com

The Solo & Small Firm Practice Section Meeting

November 16

Appellate Law Practice Section Brown Bag Meeting

Noon – 1 p.m., Speaker: 2DCA Court Clerk Mary Beth Kuenzel. Topic: E-Filing: Navigating the Ins and Outs and Protecting Confidentiality. 1 hour CLE credit approved. Free for LCBA members; $25 for Non-members. Register online at www.leebar.org.

December 9

Criminal Law Practice Section Meeting Noon – 1 p.m., Larry’s Lunch Box, 2200 MLK Blvd., Fort Myers. Please call or fax your lunch order a day before the meeting to Larry’s. Phone: (239) 208-4035 or fax: (239)208-4278. No registration required.

Lee County Bar Association Annual Holiday Party

December 16

Educational Seminar on Professionalism in Florida Courts/Ethics

10 a.m. – 2 p.m., Crowne Plaza, 13051 Bell Tower Dr., Fort Myers. Ita M. Neymotin Regional Counsel, Second District Court of Appeal, Henry Lee Paul, Ex Officio member of the Supreme Court Commission on professionalism, and Lee County Bar Association present: The Honorable Supreme Court Justice R. Fred Lewis as our guest speaker. CLE and CJE credit pending. LCBA members $30; judges and magistrates $25; non-members $35. Register online at www.leebar.org.

Visit us online at leebar.org to see the entire LCBA Annual Calendar. You can conveniently RSVP for upcoming events. Would You Like to Submit an Event? Email your event submission to resgestae@leebar.org

Thank You to our Annual Sponsors for 2016

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Public Defender's Office Joseph A. Adams

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RES GESTAE | NOVEMBER 2016


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NOVEMBER 2016 | RES GESTAE

11


Ethically Speaking

TIPS FOR APPROPRIATE INCREASE IN FEES AFTER THE START OF REPRESENTATION

By Henry Lee Paul, Esq.

Although fee arrangements are primarily considered to be a matter of contract law, there are restrictions imposed by The Rules Regulating The Florida Bar and case law. One circumstance that is subject to heightened scrutiny is when a lawyer increases the initially agreed-upon fee arrangement. There may be occasions when it is appropriate for a lawyer to increase agreed upon fees after the start of the representation. However, the burden to establish the reasonableness of any such increase will rest with the lawyer. ABA Formal Opinion 11-458 (Changing Fee Arrangements During Representation) is the most instructive analysis regarding a fee increase subsequent to the initial fee arrangement. It was acknowledged in the Formal Opinion that reasonable periodic hourly rate increases are appropriate if the client is notified in the fee agreement and otherwise. The Formal Opinion states: “…many lawyers who bill for their services on an hourly basis routinely increase their ‘normal’ or ‘regular’ hourly billing rates incrementally from time to time, often on an annual basis, without negotiating every increase separately with each client. Such billing practices, if communicated to clients at the

12

RES GESTAE | NOVEMBER 2016

commencement of the client-lawyer relationship, generally are permissible.” Accordingly, the initial hourly fee agreement should clearly state that periodic hourly rates may be increased, with notice to the client. It is suggested that the client be notified in writing of hourly rate increases. Although not clearly stated in the Formal Opinion, it is advisable to inform the client in writing in advance of an hourly rate increase. Written notification will be especially helpful when fees are disbursed from trust. Such a precaution may prevent a fee dispute from turning into an allegation of a violation of trust accounting rules. One particular area of concern involves criminal representation fee agreements. It is not uncommon for a lawyer to charge a fee up to trial and an additional fee for trial. It is important to communicate, at the outset of the representation, the anticipated amount of additional fees to be charged for additional services. Failure to do so may not only cause a fee dispute with a client, but also may result in the subsequent fees sought by the lawyer being uncollectable and subject the lawyer to disciplinary sanctions. Another area of concern is when an hourly fee agreement is converted to a contingent fee agreement. Such a

change in compensation may be entirely appropriate, and is often sought by the client. Such a change is often justified by a change in circumstances. Any contingent fee should be fully communicated in a writing signed by the client in accordance with Rule 4-1.5(f ). The evaluation of an increased fee is likely to be reviewed in light of the circumstances existing when the initial fee agreement was made. The lawyer will be held to the standard of reasonableness. Any fee modification should be effectively communicated to and agreed upon by the client. 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. Paul is also an ex officio member of the Supreme Court Commission on Professionalism and a member of Board of Governors Standing Committee on Professionalism.


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Solo and Small Firm Practice Section

Train your marketing for the sprint and the endurance race By Conor Foley, Esq.

There are two predominant schools of thought when conditioning as an athlete – long distance/ endurance vs. sprinting. In my opinion, the best athletes in the world harness the power of both, and train their slow- and fast-twitch muscle fibers to be able to fire even at the end of the longest games. For instance, look at LeBron James – he can battle through an exhausting seven-game series in the playoffs after an eightmonth long season, and still have the energy to break out on a fast break in the deciding minutes with the championship on the line. This same mindset can be applied to your online marketing. You can get instant gratification and results from paid advertising such as Google AdWords (the sprint), or you can methodically create materials that potential clients and even other attorneys will benefit from that display your expertise for your firm’s blog (the endurance race). However, just like LeBron, you too can become a master at both skill sets and reap the returns of a well-established, organic blogging

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RES GESTAE | NOVEMBER 2016

campaign along with the daily hits from your AdWords. The best results come from a multifaceted attack when the consumer sees your ad at the top of the search results, and then sees your name again in the organic search results. AdWords traffic is paid by the click. It can be very expensive for the solo or small firm practitioners that have to compete with the larger firms that are also geotargeting the same practice areas with their ads. This doesn’t mean you should not be in the game. The larger the budget that is allocated towards AdWords, the more clicks you will receive on your ads, and the greater the chance you will receive related calls from potential clients. Google has several free tools to create your own ad campaigns to get started, but the nuances of AdWords are complicated and best explained/ implemented by an expert. This will force you to increase your budget again, but the returns can be exponentially greater. BEWARE – vetting of SEO and AdWords providers is very important, as there are hundreds of “experts” in this niche that will gladly take your money without the ROI. Content marketing – whether it is the

previously mentioned blogging or the trending social media platform – will allow your audience to get a glimpse into your expertise and decide whether you are the right attorney for their needs. There are rules you need to research, learn and adhere to with this type of marketing as well. Combining keywords related to practice area and geographical market with relevant topics to create content can yield good results for newcomers. There is no instant gratification from content marketing, but consistency and calculated content will eventually develop into a steady stream of potential clients from your online presence. All of the above must be executed well and mixed with your regular dose of networking, cultivating relationships with other attorneys and members of the community, and tracking results for a well-rounded business development plan. RG

Conor Foley practices Labor and Employment Law with Gunterfirm representing both employers and employees. Conor is also a co-chair of the Solo and Small Firm Practice Section.


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Legal Lens

Henry Lee Paul, Cheif Judge Micheal T. McHugh, Hon. Elisabeth Adams

Whitney Pope, xx, xx Brandon Hall

Hon. Lee Schreiber, Magistrate Steve Studybaker

LCBA Luncheon & Ethical Issues in Social Media CLE On Sept. 22, the LCBA presented an Ethical Issues in Social Media seminar, with panelists Chief Judge Mike McHugh, Judge Elisabeth Adams and Henry Lee Paul, Esq. discussing the thorny issues attorneys and judges face in the digital age. Hon. Devin George, Diana Jezik

16

Photo credit: Jim Jett Photography

L. David Sims, Jess Levins

Hon. Joseph Fuller, Miguel Fernández

Jason Holtz, Elias Mahshie

Scott Atwood

Dan Endrizal, Kelly Fayer, Henry Lee Paul

Bill Thompson, Mike Fink

Hon. Jack Weiss, Indera DeMine

RES GESTAE | NOVEMBER 2016


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First-Person Perspective

By Indera DeMine uring Donald Trump’s iconic speech to announce his candidacy for president of the United States, fixing the current immigration laws in the United States became a main focus. In fact, throughout this race for the White House, immigration has been hotly debated and has become a major concern for many Americans who will be casting their votes this month. Current immigration law is regulated by the provisions set out in the Illegal Immigration Reform and Immigrant Responsibility Act of 1996. In 2013, the most monumental overhaul of U.S. Immigration policy was introduced and passed the Senate. The bill proposed a 13-year pathway to citizenship for undocumented immigrants and increased border security, among other measures. The bill never saw the light of day as it died in the House. President Obama has used his Executive Action powers and implemented a number of immigration programs. On June 15, 2012, it was announced that certain people who came to the United States as children and who meet a number of guidelines may request deferred action for a period of two years. Deferred action would allow these individuals to legally work in the United States and obtain a driver license and a social security card. On November 20, 2014, President Obama attempted to expand on deferred action to include parents of Americans (DAPA) and expand

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RES GESTAE | NOVEMBER 2016

on the existing deferred action for childhood arrivals (DACA) from a twoyear work permit to a three-year work permit. This measure was immediately challenged by several states, led by Texas and including Florida, that filed an injunction against the expansion. In Texas v. United States, the Supreme Court affirmed by a divided court (4-4) the lower court’s decision to enjoin the implementation of the programs. As a practitioner, I saw firsthand the confusion that ensued after announcement of the expansion. Many of my DACA clients were granted threeyear work permits and were then asked to return them. Many parents of United States citizens were hopeful that they would finally be allowed to legally work only to be told that the program did not pass. As an immigrant myself and a practicing immigration attorney, my opinion on the current state of U.S. immigration law is influenced by my own immigration journey to the United States and the countless stories I hear every day. On a practical level, it would be impossible to round up 11 million people living illegally in the United States and deport them. At the same time, thousands of people are entering the United States illegally each year. The Pew Research Center reports that an estimated 500,000 people entered the United States illegally each year between 2005 to 2008. There is an immediate need for stronger

borders. The system is also broken for many trying to enter the United States legally. As of today, there is a 23-year backlog for a petition filed by a sibling for someone living in Philippines, and there are significant backlogs for many other categories. As an immigrant, I know the absolute longing to come to the United States. It is the one place in the world where a 15-year old girl can immigrate, without a penny to her name, and find herself a dozen years later practicing law. With a complete overhaul of the immigration system, I believe that there is hope for an immigrant-friendly country with stronger borders and legal immigration that works. RG

Pitch us your own story to appear in this occasional series. Email resgestae@leebar. org with “First-person perspective” in the subject line.

Indera DeMine, Esq. was born in Guyana, South America. She immigrated at age 15 to New York. She completed her law degree at Ave Maria Law School in Naples. She is founder of DeMine Immigration Law Firm in Fort Myers, focusing on immigration and nationality law. DeMine is a member of LCBA and American Immigration Lawyers Association.


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Legal Lens New Lawyers’ Induction Celebration

Andrew N. Walker, Carlos Morales del Castillo, Grace Mathis, Hon. John Carlin, Kirushanthy Balachanthiran, Scott J. Dalton

Kelly Fayer, Kayla Richmond, Kristalyn Loson

On Oct. 5, the LCBA welcomed our circuit’s newest attorneys at a swearing in ceremony, with Hon. John S. Carlin administering the Oath of Admission. The Young Lawyers Division then hosted a happy hour to celebrate the bar-applicants’ accomplishments. Photo credit: Jim Jett Photography

Scott Atwood, Jimmy Butler, Scott Dalton, Spencer Cordell

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SOMETHING I

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Photo courtesy of Jim Jett Photography

Young attorneys become captains for environmental change


IN THE WATER By Sara Fitzpatrick Comito

NOVEMBER 2016 | RES GESTAE

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Photos on this page and facing page: courtesy of Captains for Clean Water

E

njoy living on dry land? You can thank Hamilton Disston. In 1881 that real estate developer regarded the southern part of our peninsula and thought it had a lot going for it. It was sunny all year long, the fishing was good and the land was dirt cheap. There just wasn’t a lot of dirt to go around. Being an enterprising businessman, and the eccentric type that history tends to favor, he invoked the name of progress and set about removing his major obstacle: water. Today we see the fruits of his vision in a river, dredged and straightened, connecting Lake Okeechobee to the Gulf of Mexico. It represented a nascent redrawing of the hydrological map. It heralded the start of a population influx to southern Florida. It was where all the trouble started. There have been champions. Marjory Stoneman Douglas, for instance, helped designate Everglades National Park. She also warned that our meddling would catch up with us. Then there are More and more, we’re paying attention. those today who would shake us by the Even in 2016’s particularly volatile news cycle, there’s no shortage of coverage shoulders and say that it already has.

The history is colorful, but the present is a murky brown and green.

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Top photo: An effluence of brown fresh water mixes into the Gulf. Sanibel causeway is at left, with Estero Island at right. Bottom photo: Sea foam forms where two columns of water meet, often indicating a high level of organic nutrient content.

of algal blooms, fish kills, seagrass bed degradation and red tide. The history is colorful, but the present is a murky brown and green. Some young Lee County attorneys just refuse to go with the flow.


The future is south If the early captains of industry opened the floodgates on more than a decade of human folly, Captains for Clean Water are determined to close them once and for all. We can’t undo the past, but this group, founded in part by attorneys Leland Garvin and PJ Scheiner, believes we can repair some of the damage. According to its mission statement, “Captains for Clean Water is a grassroots 501(c)3 nonprofit organization advocating for the elimination of harmful, large-scale Lake Okeechobee discharges into the Caloosahatchee and St. Lucie River Estuaries by restoring the natural flow of Lake Okeechobee water south into the Everglades and Florida Bay.” Scheiner was on a shallow-water dive offshore of the Sanibel Lighthouse shortly after this spring’s infamous discharges of fresh water from Lake O began. “You could tell the water was terrible at the surface, a murky greenbrown pea soup, but we hoped that the visibility would improve as we got to the bottom,” he recalled. Experience told him the less-dense freshwater pushed out of the river gives way to clearer saltwater as you near the bottom. Not this time. “I literally hit the bottom at the same time I saw it.” Worse, upon surfacing, his wetsuit smelled like raw sewage. Motivated by anger, Scheiner worked with fellow attorney Leland Garvin, Captain Daniel Andrews and an Orlando filmmaker to shoot video over a weekend to educate the public on the shocking situation. That weekend, and with the help of local Captain Chris Wittman, Captains for Clean Water was born. The group was among the drafters of the Now or Neverglades resolution, designed to galvanize organizations, individuals, businesses and

What flows downstream?

The solution is simple, scientifically validated and fully funded.

He also gets his friends involved. As a result, Blake Hampton now has firsthand experience with the issues. “Leland introduced me to the Clean Water fight,” Hampton explained. “On his boat we could see the dark water from the Lake O discharges.” He plans to bring his fight to the voting booth, and said he supports clean water candidates over any particular party. He believes he and his politicians to support science-based colleagues must educate other voters. solutions for Florida’s water issues. “The issue is complex. Special interests Like Scheiner, Garvin became an disguise their lobbying and propaganda advocate for water policy change as a as pro-environment.” He said there are longtime outdoorsman whose love of the environment obligated him to speak also a lot of red herrings, created by out. The human factor is still the most those who stand to benefit from the unpredictable variable in the debate. He status quo: “A new misconception is that said, “When I witness the stranglehold buying land South of Lake O will prevent that special interests have on our water springs restoration in North Florida.” management, the political process and Hampton’s not shy about calling even our local media, I am reassured that out who he views as perpetuators of I must continue in my efforts to protect our environmental mire: “Most of our most valuable resource.” Garvin has our politicians, with the exception of taken the fight to social media, South Representative Heather Fitzenhagen, Florida Water Management District cave to the demands of the sugar meetings and even, with Scheiner, D.C. industry.” to work with U.S. Representatives Curt Plumbers have a saying that Clawson and Patrick Murphy. [something – expletive deleted] flows

Photo right: Sea grass beds, forming the foundation of estuary ecosystems, fall victim to distortions in salinity and the presence of sediment that prevents photosynthesis. NOVEMBER 2016 | RES GESTAE

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Photo courtesy of Jim Jett Photography

downstream. You catch the drift, right? Well, so does everything else. This part is pretty simple, and the Clean Water Captains have stats at the ready. They live and breathe this stuff like a sea turtle breathes air. Some highlights: Storms stir up settled sediment from the bottom of Okeechobee, freeing formerly sequestered nutrient up into the flow. This stuff never used to make it to the Gulf – remember, the Caloosahatchee as we know it today is a river that never was. That nutrient can feed bacteria and harmful algal blooms. The straightening and channelization of the river has resulted in a quicker rate of flow of water whose turbidity prevents light from reaching the bottom so the seagrass can’t photosynthesize. Aside from being bad news for creatures that might eat that vegetation, its absence means erosion happens unchecked, leading to more mud to flow, and so on. The seafood species many of us enjoy do not enjoy decreased salinity levels. Many of them depend on oysters and seagrasses for their nursery ecosystem, which collapses with distorted estuary salinity levels. At a time of relaxed pollution limit standards, it’s worth

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Some claim special interests disguise their propaganda as pro-environment. noting the pediatric cancer cluster discovered south of Lake Okeechobee, with links to nutrients like phosphorous, nitrogen and methyl mercury. Remember, owing to history, we are downstream. And these chemicals are classified as “legacy” nutrients, meaning they stick around for generations. It would all be pretty grim, if not for the example of the water champions introduced here, and many others in the community who have decided another type of “legacy” is more befitting a region that has always been a draw for its natural beauty and resources. As lawyers, they carry a bigger stick than many citizens. Garvin said, “I think my training as a lawyer, specifically my time as a state prosecutor and currently

a plaintiff ’s injury lawyer representing the ‘little guy,’ has given me a bit taller of a soapbox and possibly the ability to effectively communicate the issues to the general public.” Moreover, according to Scheiner, “While the problem is large and longstanding, the solution is simple, scientifically validated and fully funded.” Remember 2014’s Amendment 1? You probably voted for it like 75% of Floridians.

The river that never was All of “the Drainage King’s” plans didn’t quite pan out – Lake O levels continued to rise and fall despite the new controls Hamilton Drisston put into place, and his westward canal flooded. He never did get to see the Everglades dry out as he dreamed. Subsequent kings of industry took up the torch. Florida Governor Napolean Bonaparte Broward made good on his given name, and took to imperializing the watershed as the Spanish had the proud Caloosa warriors, from whose conquered empire we at least deign to borrow the suffix “hatchee,” meaning river. It’s a more poetic designation than the official one used by water managers. This “river that never was” is not even a river. C-43 (Canal 43) could be our undoing, or we can look to the wisdom of nature as the old maps illustrate for navigational clues. Scheiner said, “The chorus of voices demanding change – to restore the natural flow of Lake Okeechobee water through the intended use of funds appropriated by Article X, Section 28 of the Florida Constitution – is growing louder.” When things get out of hand in the 1975 film “Jaws,” Sheriff Brody says, “You’re gonna need a bigger boat.” Maybe we in Southwest Florida just need some more captains. RG To find out more about the Now or Neverglades Declaration and Captains for Clean Water, visit captainsforcleanwater.org.

RES GESTAE | NOVEMBER 2016


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27


Legal Lens

Danielle and Dustin Butler

Miguel and Denise Fernández

The next Fernández generation

BENCH BAR GALA On Sept. 30, the LCBA took over First Street and walked the red carpet for an unforgettable evening of wining, dining and glamour to celebrate the judiciary. In a moving presentation, Miguel Fernández was presented the Decorum Award as his wife and three daughters looked on. Retiring Federal Judge John E. Steele was honored for his career of service. Hon. James Adams and wife Mary Beth

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Photo credit: Jim Jett Photography

Ian and Julie Ireland

Glee and Sally Duff

Kristie and Jon Scott

Spencer Cordell and wife Shatree'Tia Jones

RES GESTAE | NOVEMBER 2016

Mayor Randy Henderson and wife Ginny

Amy D'Alessandro , Jonathan Martin

Heidi Plaumann and Leland Garvin


Legal Lens

Alina Conzalez-Dockery

Blake Hampton and Kate Walter

Jonas and Neena Kushner, Eviana and Steven Martin

Connie and Rick Williams, April Bordeaux

Dan Endrizal, Julie Sturgeon, Vera Bergermann, Steve Clarke

Tom Coleman and Kristina Neckar

Alexis Barkis, Hon. John Steele, Kate Paine

Hon. Ramiro MaĂąalich and Jane MaĂąalich

Dan Detrick and Cynthia Duff

Hon. Archie Hayward and Sharon Green

Hon. Jospeh Fuller and Beverly Fuller

Shannon Puopolo and Nick Stokke

NOVEMBER 2016 | RES GESTAE

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The Dish

Farmer's Market...a part of Fort Myers history

By Sara Fitzpatrick Comito

W

ho knows how I ended up with this keen sense of righteous indignation? It’s true I have a fondness for underdogs and even, it must be said, an overly attuned nose for even the faintest whiff of injustice. So when I hear roving food critics Jane and Michael Stern check in on NPR’s The Splendid Table on a Saturday afternoon and go on and on about some southern “meat-and-three” restaurant, I get all uppity. What is Fort Myers, chopped liver? After all, Farmers Market Restaurant opened in 1952 and is the oldest operating eatery in mainland Lee County (Cabbage Key Bar opened in 1944). Its motto: “Put the taste of the south in your mouth!” It turns out that probably like the vast majority of this

f& Meatloa

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gravy

RES GESTAE | NOVEMBER 2016

column’s readers, the Sterns have already put Farmers Market Restaurant on their map – and their blog, RoadFood.com, under the category “Meatand-three.” Time for this writer to simmer down, not unlike a big pot of collard greens. Among the place’s many ardent fans is Walter O. Sheppard, Jr., 1963 president of the Lee County Bar Association, pictured here with owner Betsy Barnwell. Apropos of this issue’s cover story theme, Mr. Sheppard was recently awarded the Conservationist Award from the Coastal Conservation Association Florida. As a Florida State Representative, he was largely responsible for designating the snook as a gamefish in 1957. Farmers Market Restaurant needs no such conservation assistance, as evidenced by

n

Fried chicke

a boisterous full house on a recent Friday night. The pies, however, are perennially endangered. Baker Christine has made a career out of baking pies for about 40 years, and the dozen or so varieties on the board on any given day will dwindle precipitously by the dinner rush. I will have to return to sample the strawberry pie, which, the Sterns marveled, “…is a thing of beauty!” Christine’s favorite is the coconut cream, which is also the best-seller. The light, creamy peanut butter pie floats on a chocolate graham cracker crust. It was also flavored with a small amount of guilt that my teenage son wasn’t there to enjoy what surely would have been his first choice. That’s just another reason to return, and with some amount of strategy for not filling up on the sweet crumbly corn muffins and soft, yeasty rolls that appear


unbidden before the main course arrives. That’s a nice thought, anyway. When my plate of pulled pork arrived, it was a PLATE of steamy, tender, smoked pig that partially explained the heady aroma that hit my nose even while parking the car. A second plate ferried my assorted sides. Mashed potatoes and gravy, BBQ beans and slaw composed my “-andthree,” selected from a wondrously vast selection of 15 daily choices, plus the specials. All this for only $11.95! My companion opted for the fried chicken, which boasted a shatteringly crisp coating achieved with minimal breading. I’m convinced amazing fried chicken is accomplished through one part art and one part science, but mostly witchcraft. When you ask top chefs what they would want for their last meal, they add a heavy sprinkling of nostalgia. Gordon Ramsay, profane king of reality cooking shows, for instance, would opt for roast

beef and gravy with Yorkshire pudding. For many of us, the flavors of home might include a ie really yummy tter p u b t u macaroni Pean and cheese, baked chicken, creamed corn, spiced apples, meatloaf or a hot bowl of chili. Those in the practice of criminal law might know more about last meals than the rest of us, but we all know the foods that make us happy. That’s why RoadFood.com rates Farmers Market Restaurant “Excellent. Worth the trip.” Luckily for us in Lee County, it’s not much of a trip. Farmers Market Restaurant is the sole Fort Myers establishment to make the

2736 Edison Ave, Fort Myers 239-334-1687 farmersmarketrestaurant.com Monday - Saturday 6 a.m. – 8 p.m. Sunday 7 a.m. – 7 p.m. Breakfast served until 10:30 a.m. Monday- Friday and until 11 a.m. Saturday - Sunday

RoadFood.com list. The Dish column, however, is dedicated to highlighting the variety of places to meet and eat across Lee County, from the haute to the homey, from the ridiculous to the sublime. Got a recommendation? Let us know! RG

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

NOVEMBER 2016 | RES GESTAE

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2016 Pro Bono Award Winners

At the October 14 LCBA Pro Bono Award Luncheon, we were joined by Florida Rural Legal Services to recognize those who have served the community with their dedication to pro bono service. Pro Bono Publico Award Presented posthumously to Jerald “Jerry” John Chlipala, Esq. (1949-2016) “in recognition for a lifetime spent in service to the rule of law through devotion to community and people,” and accepted by his wife Patricia. Partnership Award Presented to Lee Clerk of Court Linda Doggett “for partnership and dedication to ensuring equal access to the courts regardless of socioeconomic status.” Please join us in congratulating this year’s recipients of the LCBA’s Pro Bono Awards: Mark C. Anderson, Esq. Elizabeth C. Bentley, Esq. Bill B. Berke, Esq. Kathleen O. Berkey, Esq Katheryn Smith Calvo, Esq. Thomas G. Coleman, Esq. Spencer A. Cordell, Esq. Mary A. Cosmo, Esq. Christopher W Crowley, Esq. Daniel S. Dalesandro, Esq. Joshua O. Dorcey, Esq. Daniel J. Endrizal, III, Esq. Kelly L. Fayer, Esq. Charles T. Ferber, Esq. Pauline Franklin, Esq. Joseph P. Hoffman, Esq. Kim E. Howard, Esq. Diana L. Krueger, Esq. Amy L. McGarry, Esq.

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RES GESTAE | NOVEMBER 2016

Frank Murphy, Esq. Jennifer M. Neilson, Esq. Ryan M. O’Halloran, Esq. Antoinette M. Peck. Esq. Melody P. Porter, Esq. Eric A. Reyes, Esq. Kayla E. Richmond, Esq. David A. Sims, Esq. Mary Vlasak Snell, Esq. David E. Steckler, Esq. Kristianna R. Soto, Esq. Steven K. Teuber, Esq. Barbara M. Trescott, Esq. Joseph C. Trunkett, Esq. John C. Webb, Esq. Marc E. Weiner, Esq. Elizabeth A. Wolt, Esq. Christine F. Wright, Esq.


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On the Bench Hon. John L. Burns

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RES GESTAE | NOVEMBER 2016

Growing up in the Syracuse area, Judge John Burns had something in mind for his future that was quite different from his working classfamily background. “I always wanted to be a lawyer,” he said. “It’s the only think I remember wanting to be.” His father was the first in the family to go to college, and later escaped the brutal upstate New York winters by moving to Florida. After law school his son followed that wise example, too. Judge Burns began his career as a prosecutor from 1995 to 2010. In case anyone’s wondering, 15 years is a long time to focus mostly on crimes against children. The judge said, “It was something that I was passionate about. I had a real sense of accomplishment handling those cases, being able to sit down with the families and the victims and give them closure.” Even with passion as a sustaining force, the subject matter can get too heavy. When the judge asked for a leave of absence, then-supervising ASA Dan Feinberg, said, “It’s about time.” And when a child named Hannah Burns was killed, the judge and his wife chose a new favorite name for their unborn daughter. Ella held the Bible for Judge Burns’ investiture upon his appointment by Governor Crist to the Charlotte County bench. “She still thinks that day was all about her,” he laughed. It was just the change he wanted. He is still able to channel his passion, even for causes he didn’t think he believed in, like Drug Court. “I had a ‘Do the crime, do the time’ naïve attitude,” he admitted. The docket fell on him as the new guy. Now it’s the one he always asks for when there’s a judicial rotation. “These people start off feeling helpless and hopeless, and the program gives them the tools to regain their lives.” When not at work, Judge Burns is attending his daughter’s swim meets or traveling with her to comic book conventions. “We are super geeks,” he affirmed. As a kid, he played Dungeons & Dragons with a group of six friends, five of whom went on to become attorneys.


From the Bar Agnieszka Osowicka, Esq. “My mother always jokes around that ever since I was a kid, I had already planned out my college, law school and life,” said Agnieszka Osowicka. That early self-determination was rewarded when her parents immigrated from Poland to the U.S. to afford their sevenyear-old daughter the opportunities she dreamed of. The website ASA Agnieszka Osowicka and ASA Paul ThinkPoland.com Thomas trumpets, “Study engineering in Poland! If you plan to undertake technical studies, Poland is the best option for you!” Osowicka’s parents – both engineers – knew she wouldn’t be content to follow in their footsteps, and they were also well aware of her love for argument. For the past three years, the Office of the State Attorney has benefitted. Osowicka enjoys the gratification of working on victims’ behalf as a general felony attorney. “It’s nice to see justice done,” she said. Naturally a conviction is the goal, but she finds victims and law enforcement officers are thankful for her efforts, whatever the outcome of a case. The ASA originally thought she’d work in civil law, maybe even on the corporate or transactional side. As a high school student, however, Osowicka volunteered at Teen Court and discovered a love for trial work. While studying at the University of Detroit Mercy School of Law, however, she honed her career ambitions further during a domestic violence internship at the Wayne County Prosecutor’s Office. She especially relished her role in securing due process for victims. “I enjoyed seeing a positive outcome for the community and seeing laws working like they’re supposed to.” she said. Osowicka makes it a habit to reach beyond her comfort zone. “I try to always branch out and try new things,” she said. She might sit second chair in a Special Victims Unit proceeding or Firearms cases. Lately, she’s also become an avid skeet shooter. Her smile has graced this magazine’s Legal Lens section from time to time. “I really like connecting with the local defense bar or the private bar in general.” It has been a few years since Osowicka has returned Poland. “My grandparents are getting older,” she said. “It’s time to go back and visit.”

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Legal Lens Constitution Week Speakers in the Schools

Attorney James O'Leary discussing the Constitution with students at Bonita Middle School

Paul Rocuant

Lawyers and judges again took time out for an interactive discussion with area students to help them grasp the impact the Constitution has in their everyday lives. The LCBA is grateful to the more than 30 volunteers responding to educators’ requests and to program chair James O’Leary. Alex Peterson

Judge Devin George with a Challenger MS student

Judge Devin George with students at Challenger MS

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RES GESTAE | NOVEMBER 2016


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NOVEMBER 2016 | RES GESTAE

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Absolute Law 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 & 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. Geraghty, Dougherty, Edwards & Stockman, P.A. Goldberg 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 Office of Brantley Oakey 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.

Patrone & Kemp, PA Pavese Law Firm Robert Harris Law Firm Roetzel & Andress, L.P.A. Roppo Molandes, PLLC Rubinstein, Holz & King, P.A Sheppard, Brett, Stewart, Hersch, Kinsey & Hill, P.A. Simmons Law Firm, P.A. Spivey Law Firm, Personal Injury Attorneys P.A. Steinberg & Linn, P.A. Strayhorn and Persons, P.L. Toll Law Vernis & Bowling of Southwest Florida, P.A. Viacava & Cantor Attorneys at Law Viles & Beckman, LLC Webb & Scarmozzino, P.A. Weldon & Rothman, P.L. The Wilbur Smith Law Firm, PLLC Yeslow & Koeppel, P.A.

Is your firm part of the 100 Club? Any firm with 2 or more attorneys and 100% membership in the LCBA qualifies. If you feel your firm is eligible fax a listing of your attorneys to (239) 334-0523 and we will let you know.

“It Ain’t Over ‘Til It’s Over” - Lawrence Peter Berra

The appellate forum is very different from the trial forum. An appellate litigant is at an advantage when represented by an experienced appellate advocate, one who has dedicated her/his entire career to understanding the complexities of appellate practice and its unique requirements. Appellate rules and effective strategies on appeal are very different from those used at the trial level.

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• AV Preeminent Rated® for more than 20 years • 40th year as an appellate lawyer in SW Florida 38

RES GESTAE | NOVEMBER 2016


Small-Business Owners Must Protect Their Futures If you’re a small-business owner, you think a lot about your needs for today. But don’t forget about tomorrow. Specifically, do you have a retirement plan for yourself? You have several good options. For example, you could open an owner-only 401(k), which offers many of the same advantages of a 401(k) offered by big companies to their employees. Or, if you have just a few employees or are self-employed with no employees, you might consider a SEP IRA. If you have fewer than 10 employees, you could establish a SIMPLE IRA, but this plan may be more advantageous to your workers than to you. And here’s a plan whose existence might surprise you: a defined benefit plan, which works very much like those traditional pension plans that seem to be vanishing from the scene. A defined benefit plan has high contribution limits and, like the other retirement plans, is typically funded with taxdeductible contributions. To determine which plan is right for you, consult with your tax advisor or financial professional. But don’t wait too long – the future will be here before you know it.

Brad Jessen, Financial Advisor

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This article was written by Edward Jones for use by your local Edward Jones Financial Advisor.

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In The News Mark R. Klym has been named the managing partner for the Naples office of Hahn Loeser & Parks LLP. Klym focuses his practice in estate planning and probate and trust litigation. His background includes the development of succession plans, drafting limited liability companies and start-ups, administration of trusts and guardianships as well as the administration of estates. He has a wealth of experience in the preparation and implementation of all segments of estate plans, including durable powers of attorney, health care directives, revocable trusts, irrevocable life insurance trusts, beneficiary designation planning and utilization of Section 529 plans. Kati Calvo has been recertified by The Florida Bar in Criminal Trial Law. She is the only female attorney in Lee county to achieve the distinction in this area of law. First certified in 2010, Calvo is among the 7 percent of attorneys in the state of Florida recognized by The Florida Bar as achieving the highest level of competence, experience, professionalism, and ethics. Calvo continues to handle complex criminal litigation cases while also doing family law and managing Calvo & Calvo Attorneys at Law in downtown Fort Myers. In addition, she serves as an attorney member of the 20th Circuit Unlicensed Practice of Law Committee, which was established by The Florida Bar. Rocuant Law Firm has announced the addition of Beth-Anne Thye Sexton as a partner. Sexton joins attorneys Paul and Amanda Rocuant in the new firm Rocuant & Sexton, LLC, which will continue to focus its practice on marital and family law. Beth-Anne Sexton has helped families through conflict resolution throughout her entire career. In addition to practicing marital and family law for 26 years, her experience includes serving as the sole Guardian ad Litem attorney for five counties, completing extensive coursework in conflict resolution and financial behavior, and achieving certification in family mediation and arbitration. M. Travis Hayes, a wills, trusts and estates attorney and a partner of Lile & Hayes in Naples, has been appointed co-chair of The Florida Bar’s Probate Rules Committee by the president of The Florida Bar. Hayes is a member of the Executive Council for the Real Property, Probate and Trust Law Section of The Florida Bar and serves as vice chair of both the Legislation Committee and Probate Law and Procedure Committee. He is a past chair of the Trusts & Estates section of the Collier County Bar Association. A University of Florida Levin College of Law graduate, Hayes previously served as a principal in the Naples office of Cummings & Lockwood, LLC.

Grace Gutierrez has joined the Bonita Springs office of Cummings & Lockwood LLC as counsel in the Private Clients Group. Guttierez focuses her practice on all aspects of estate planning and post-death administration of estates and trusts. She assists with the development of estate plans, including the creation of revocable trusts and wills, and implementation of advanced estate planning techniques, including the creation of grantor-retained annuity trusts, qualified personal residence trusts, irrevocable gift trusts and irrevocable life insurance trusts.

John J. Cunniff, Of Counsel in the Naples office of Hahn Loeser & Parks LLP, has been licensed to practice law before The Florida State Bar. Cunniff was recently licensed to practice law before the United States Patent and Trademark Office; the U.S. District Court for the Northern District of Ohio, the U.S. Sixth Circuit Court of Appeals, and the U.S. District Court of Colorado. Cunniff is well versed in preparing and prosecuting patent applications in the U.S. and worldwide. He is particularly experienced in the pharmaceutical industry. Cunniff earned his master’s degree in microbiology and an undergraduate degree in biology prior to earning his law degree.

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RES GESTAE | NOVEMBER 2016


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Insurance Recovery Advocates Our firm routinely handles and accepts referrals of appellate matters in both state and federal courts. Legal advocates for the rights of policyholders in insurance recovery, risk transfer, additional insured coverage, coverage disputes and denials, claim representation, and bad faith litigation. Representing buyers and sellers in all of their commercial and residential real estate transaction and litigation needs.

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Profile for Lee County Bar Association, Lee County, FL

Res Gestae - November 2016  

Res Gestae - November 2016  

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