Res Gestae - September 2017

SEPTEMBER 2017

Ready for the 148th college football season?

LCBA Cares About Fun & Football

Wake up, Florida!

Revising the constitution

Pass around some memories THE OFFICIAL AWARD-WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION

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Contents Photo left: The SWFL Seminole Club with Head Coach Jimbo Fisher, including Gail Lamarche and Robert Shearman of Henderson Franklin.

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On The Cover: Football themed photo composite Cover credit: April Bordeaux

features 18 Wake up, Florida!

Revising the Constitution

by Sara Fitzpatrick Comito with Laird A. Lile

22 Get Ready for Some

Football!

by Josh Milton

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departments 6 Letter from the President

by Kelly L. Fayer, Esq.

32 LCBA Judges Care

Hon. Hugh Starnes

8 Letter from Executive Director 34 LCBA Members Care

by David A. Seitz

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Calendar of Events

36 LCBA Members Care

12

Ethically Speaking

by Henry Lee Paul, Esq.

14 RPPTL Practice Section

by Jennifer Hammond, Esq.

20 Legal Lens

Kathy Smith, Esq.

Michael Lehnert, Esq.

37 Member-at-Large Nominations 38 #KindLee 40 In the News

News and happenings

YLD Holidays in July & Social

26 100 Club 28 New Members 30 The Dish

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La Corte Bistro

RES GESTAE  | SEPTEMBER 2017

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Letter from the President This month, we are taking a break from the seriousness of what we do every day to celebrate the kickoff of football season.

From 1990 until I graduated in 1993, I was a proud member of Florida State’s spirit organization. At the time, we were called the Lady Scalphunters, but the name was changed to Lady Spirit Hunters out of respect for the Seminole Tribe. I wore the signature Scalphunter vest while I painted faces at football games and when I gave out candy while riding in the Scalphunter float during the homecoming parade. No, you cannot see a photo of me from college. But my vest still fits, and I tried to recreate some photos for you.

LEE COUNTY BAR ASSOCIATION ADMINISTRATION

Executive Director ~ David Seitz Administrative Coordinator ~ Lisa Poulin

EXECUTIVE COUNCIL

President ~ Kelly L. Fayer, Esq. Vice-President ~ Daniel Endrizal, Esq. Secretary ~ John Webb, Esq. Treasurer ~ Matthew Roepstorff, Esq. Board Members: Kathleen Smith, Esq. ~ Spencer Cordell, Esq. Scot Goldberg, Esq. ~ Blake Hampton, Esq. President Emeritus ~ Scott Atwood, Esq. YLD President ~ Kayla Richmond, Esq.

COMMITTEES History E. Bruce Strayhorn, Esq. & Jenna Persons, Esq. Law Related Education T. Rankin Terry, Esq. Law Week Hon. John S. Carlin Mock Trial Indera DeMine, Esq. & Maria Berrette, Esq. Pro Bono Hon. Kathy Sturgis & Mary A. Cosmo, Esq. Annual Charity Golf Tournament Lee County Legal Aid & Shannon Puopolo, Esq. Bench-Bar Gala Danielle Butler, Esq. Diversity and Inclusion Ita Neymotin, Esq. & Timothy McCan, II, Esq. LCBA Family Bar-B-Que Scot Goldberg, Esq Random Acts of Kindness Amanda Bartley, Esq. & Shirlarian Williams, Esq.

RES GESTAE MAGAZINE Beverly Grady, Esq., Editor

PRACTICE SECTION CHAIRS

To bring a little law back into this article—have you been paying attention to the Constitution Revision Commission? The decisions they make could affect your life.

Please see page 18 for more information.

Kelly L. Fayer, Esq. Kelly@FayerLaw.net | 239.415.3434 6

RES GESTAE | SEPTEMBER 2017

Alternative Dispute Resolution Anne Dalton, Esq. & Bill Merchant, Esq. Appellate Alex Brockmeyer, Esq. & Matthew Irwin, 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 Amanda Brock, Esq. & Erica Woods, Esq. Real Property, Probate & Trust Law Kenneth Kemp, Esq. & Matthew Linde, Esq. Solo and Small Practice Section Jason Gunter, Esq. & Conor Foley, Esq. Tort Litigation Preston John (PJ) Scheiner, Esq.

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President, Cynthia Duff, President

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Letter from the Executive Director I only had a little bit of say in assembling our spread featuring the passion our members show for their football teams (took everything I had to highlight teams other than my Gators), and thank you to everyone who submitted photos and stories to bring it together! As our teams return to their stadiums, we get to leave the sun and rain of summer behind, and look forward to whatever will pass for winter this year. The LCBA and the LCBA Foundation have fantastic events coming together for the rest of this year.

On Saturday, Sept. 23, the LCBA is heading to the W Hotel in Fort Lauderdale, just minutes from Las Olas, Himmershee Village and the rest of downtown. Thanks to our generous sponsor, Covey Davis with Merril-Lynch, we have secured an excellent rate and are putting together a fantastic dinner and evening for this overnight trip. Please contact me if you have not signed up yet. I’ll be the one hosting a UFKentucky watch party.

The Bench Bar Gala returns this year on Friday, Oct. 13 (spooky!) we’ve shined up the red carpet, entertainment has been secured, and the Foundation is putting together a huge Silent Auction for the benefit of the LCBA Foundation's mission.

Brodeur-Carvell and Men’s Warehouse are ready to provide the tuxedos. Be sure to check the leebar.org website to see what packages are coming together.

Sponsorships are still available, and Early Bird ticket prices will close Sept. 13. Head to bit.ly/BenchBarGala2017 to register.

On Nov. 2 from 10 a.m. – 4 p.m., we will launch a new program with the circuit, where any attorney can be appointed as a Guardian Ad Litem for the children working their way through family court. All too often in this court, emotions of the moment take over and the children’s interests are left behind. With this new GAL program, any member of The Florida Bar can be appointed and compensated for their time representing the children in these contentious cases.

Nominations are open for the Member-at-Large positions on the 2018 LCBA Executive Council. I hope you will consider nominating someone, or even running.

The Executive Council sets the strategic plan for the years going forward, and stewards the traditions and programs that have made the LCBA such a fantastic influence on our community, as well as creating new ones to keep participation high and ensure that our members get the most out of being a part of the LCBA. As summer wraps up, so do the Young Lawyers Try-athalon events. This has been my second year helping the YLD provide a series of fun days to foster children of the Children’s Network of SWFL, and it never ceases to impress me how big the YLD team’s hearts are. Even if your driver’s license contradicts your YLD status, you will be welcome at their events and they are always happy to have experienced volunteers.

Reach out to Kayla Richmond or any of the YLD board to get more involved.

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

RES GESTAE | SEPTEMBER 2017

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 Kelly Fayer, Esq. David Seitz Hnery Lee Paul, Esq. Jennifer Hammond, Esq. Josh Milton Sara Fitzpatrick 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© 2017. 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 2017 Section Meetings have not been confirmed - Check our website for details!

September 1

September 22

Noon – 1 p.m., The Barrel Room, 2214 Bay St., Fort Myers

8:30 a.m. – 12:30 p.m., Cyber Training Center, 2211 Widman Way, Fort Myers, across from FMPD. Parking is provided.

Cost: $150 attorneys, $75 staff. Only 15 spots available. RSVP to info@ cybertrainingcenters.com. Four CLE credits approved.

LCBA Young Lawyers Division Lunch Meeting

September 4

Labor Day - LCBA office closed

September 8

LCBA Solo & Small Firm Section “Head Shot Happy Hour” and Quarterly Meeting 5:30 – 7:30 p.m., GunterFirm, 1514 Broadway, Suite 101, Fort Myers.

Afterhours social and free professional head shots by Samy Berrette Photography. RSVP to shaina@b-zlaw. com

September 13

LCBA General Civil & Business Litigation Practice Section Meeting Noon – 1p.m., Lee County Justice Center, Courtroom 4-H. Topic: Consumer/Debtor Remedies Under FCCPA and FDCPA. CLE credit pending

September 14

LCBA Criminal Law Practice Social

5:30 – 7 p.m., The Barrel Room, 2214 Bay St., Fort Myers

September 15

LCBA Membership Meeting

11:45 a.m. – 1 p.m., The Marina at Edison Ford (Pinchers), 2360 W. First St., Fort Myers. Cost: $20 members, $30 nonmembers

Basic Computer Forensics Course

September 23

Saturday Night, W Hotel Fort Lauderdale Beach One night and dinner for up to two people: $200. Register at LeeBar.org/ overnight or contact info@leebar.org.

October 13

September 28

6 – 10 p.m., Sidney & Berne Davis Art Center, 2301 First Street, Fort Myers.

Register at LeeBar.org/Gala

Noon – 1 p.m., Lee County Public Works, 1500 Monroe St., Fort Myers

October 20

Land Use and Governmental Law Practice Section Meeting

September 29

Yom Kippur - LCBA office closed

October 11

Technology for Malpractice Avoidance CLE

8:30 a.m. – 10:30 a.m., Embassy Suites, 10450 Corkscrew Commons Dr., Estero, FL (I-75, Exit 123). Presented by Association of Legal Administrators Southwest Florida Chapter. Speaker: Cindy Melfa of Affinity Consulting. Florida Bar CLE credits pending. Cost: $25 ALA members, $35 non-members. For more information, visit www.lcba.org/events.

October 13

LCBA Criminal Law Practice Section Meeting

2017 Bench Bar Gala

Legal Aid Society Inaugural Ethics Seminar

8:30 – Noon, Northern Trust, 7960 Summerlin Lakes Dr., Fort Myers. For more information and registration, visit www. lcba.org/events.

October 25

LCBA International Law Luncheon

11:30 a.m. – 1 p.m., Sidney & Berne Davis Art Center, 2301 First St., Fort Myers. More information TBD

October 26

Land Use and Governmental Law Practice Section Meeting Noon – 1 p.m., Lee County Public Works, 1500 Monroe St., Fort Myers

Noon – 1 p.m., The Barrel Room, 2214 Bay St., Fort Myers.

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 2017

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RES GESTAE | SEPTEMBER 2017

Answer the call!

Celebrate the Constitution Become a Speaker in the Schools

Every September, we celebrate the drafting of America’s most important document by engaging the younger generation in the LCBA’s Speakers in the Schools program. Be a role model to the next generation of citizens! Share your knowledge and unique perspective on what the Constitution means to you, and why it matters in students’ lives.

You will have plenty of support, with a PowerPoint presentation packaged and ready to help structure your talk.

The LCBA in the process of obtaining a list of teachers who desire to have an attorney speak in their classroom. If you would like your name on the list of potential volunteers, please email Jim O’Leary at jlo@jloesq.com or call (239) 947-8900. Jim will then contact you with the list of available schools, dates and times, and coordinate the matching of attorneys with the teachers.

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Ethically Speaking

Thou Shalt Communicate

A most consequential commandment

By Henry Lee Paul

P

erhaps the First Commandment of lawyer conduct should state “Thou Shalt Communicate.”

Failure of a lawyer to communicate with a client is perhaps the single most common complaint that the public has with the legal profession. Rule 4-1.4 (Communication) outlines the duty of a lawyer to communicate with a client.

Although the concept of communication by a lawyer seems to be a fundamental requirement for the practice of law, it is likely the most violated rule involving lawyer discipline.

The Florida Bar’s Attorney Consumer Assistance Program (ACAP) in Tallahassee fields in excess of 21,000 annual “request(s) for assistance” from the public concerning lawyer conduct. A common complaint to ACAP involves failure of a lawyer to communicate with the client. It is not uncommon for an ACAP representative to contact a lawyer to request that the lawyer call his or her client.

Incredible as it may seem, there are lawyers who do not comply with the suggestion by ACAP to communicate with their client. In such event, the conversion of a request for assistance into a full-blown bar complaint is a likely occurrence.

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RES GESTAE | SEPTEMBER 2017

In my experience, the failure of a lawyer to adequately communicate with a client or others is often a telltale sign of a law practice in distress. Although The Florida Bar does not keep statistics on the identity of rules cited in disciplinary matters, lack of adequate communication is likely the most common offense and is usually intertwined with the most serious matters of misconduct.

The immediacy of modern electronic communication can distort the expectations of a client regarding communication with a lawyer. The rule requires “reasonable” communication and that a lawyer should respond “promptly” to a client inquiry.

It is suggested that a lawyer develop a policy regarding the timing of communication with those clients who are devoted to repeated inquiries.

This policy should be communicated to such a client. A lawyer must also be allowed to manage time and a practice efficiently. The Florida Bar Best Practices for Effective Electronic Communication is an excellent resource to assist in devising communication guidelines relevant in our modern age of instant communication.

A corresponding duty is to communicate with a client and others with civility.

Lack of civility in communication is

increasingly a basis for discipline. See, The Florida Bar v. Norkin, 132 So. 3d 77 (Fla. 2013). Expectation 2 (Honest and Effective Communication) of the Professionalism Expectations provides additional guidance regarding appropriate communication. The Standards of Professional Courtesy and Conduct for Lawyers Practicing in the Twentieth Judicial Circuit, should also be reviewed. Failure to communicate with opposing counsel has led to courtimposed sanctions. See Peacock v. CCMC, 2016 WL 1638111 (M.D. Fla.).

Effective communication with a client is the best prescription for avoiding a call to ACAP or a bar complaint. Bad news to a client only grows worse in perception when not timely communicated. 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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RPPTL Practice Section

IS THIS IRREVOCABLE TRUST OBSOLETE?

By Jennifer Hammond, Esq.

B

y definition, irrevocable trusts are not meant to be revised. In Florida, we have various statutes to assist us with the modification of irrevocable trusts. Every estate planner will receive questions from a beneficiary, trustee, trust officer, or investment advisor, and wonder: What if the terms of this irrevocable trust should be altered to better serve the needs of the beneficiaries? Or to meet the settlor’s purposes? Or for some other reason that has come to light?

A well drafted trust will utilize drafting techniques and include sufficient flexibility to avoid the need for statutory modification. It is a balancing act, but one that an experienced estate planner will strive to achieve.

Trust Protector It is often wise to include a trust protector in an irrevocable trust or a revocable

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RES GESTAE | SEPTEMBER 2017

trust that will become irrevocable at the settlor’s death. A trust protector has the power and authority granted by the terms of the trust, which may include powers to modify or amend trust terms. This is a powerful tool that can be toggled on and off as needed to assure that the settlor’s desires are carried out and limit the need for statutory modification.

Powers of Appointment Powers of appointment come in many varieties, from very broad to extremely limited. An estate planner will draft POAs that will allow for flexibility so that a trust can be modified, in broad or limited ways, as the settlor desires. Care must be taken not to undermine the planning that was done during the settlor’s lifetime. POAs may also have tax consequences for the settlor, the beneficiary and the power holder.

Discretionary v.

Ascertainable Standards Trust decanting is when the assets of the old “first trust” are invaded and poured into a new “second trust” with more favorable terms. If complete discretion for distributions is allowed, then the trust may be decanted under Fla. Stat. 736.04117, presuming other requirements are met. Invading principal for a health, education, maintenance and support distribution will typically not change the estate and gift tax treatment of the trust. However, under current Florida law, a trust with a HEMS standard cannot be decanted.

Designated Representative Fla. Stat. 736.0306 was enacted to allow for the appointment of a designated

Continued on page 16

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Continued from page 14

representative who may receive on behalf of (i.e. instead of ) the beneficiary: notices, information and accountings; and who can bind the beneficiary to trust modifications, terminations, and decanting actions. Again, with proper drafting, this can be a powerful tool to avoid the need for statutory modification.

Statutory Modifications Ways to Fix What’s Obsolete If the trust cannot be modified using one of the techniques above, we look to statutory modification. In Florida, we have two statutes for judicial modification and one for non-judicial modification that are particularly useful.

With the two judicial modifications discussed below, a court may: amend the terms of the trust; terminate the trust in whole or in part; or direct a trustee to take action not otherwise permitted by the trust or prohibit a trustee from taking action authorized by the trust.

Judicial modification that is not inconsistent with the settlor’s purpose under Fla. Stat. 736.04113 may be the easiest judicial modification for which to qualify because the settlor may be alive or deceased and the trust may have been created at any time.

The court permits modification of any

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RES GESTAE | SEPTEMBER 2017

irrevocable trust at any time when the trust’s purposes have been fulfilled, are illegal, impossible, wasteful or impracticable to fulfill; or due to circumstances not anticipated by the settlor, compliance with the trust terms would defeat or substantially impair a material purpose of the trust. The court considers the terms and purposes of the trust, facts and

circumstances surrounding creation of trust, and extrinsic evidence relevant to the proposed modification.

Judicial modification for the best interests of beneficiaries under Fla. Stat.

736.04115 is potentially more difficult to utilize due to trust construction requirements.

Fla. Stat. 736.04115 is based upon the “best interests” of the beneficiaries. The reasons listed in Fla. Stat. 736.04113, and as outlined above, are not considered; however, a court will consider the terms and purposes of the trust. The settlor may be alive or deceased, but the date the trust was created is critical. If the trust was created prior to January 1, 2001, this section may not be used. (Under this statute, a revocable trust is “created” when the settlor dies.) If the trust was created after December 31, 2000, the rule against perpetuities term of the trust is determinative as to whether this section may be used. If the RAP term is 360 years, Fla. Stat. 736.04115 may be used.

If the RAP term is either 21 years plus lives in being or 90 years, then Fla. Stat.

736.04115 may only be used if the trust terms do not specifically prohibit judicial modification.

Non-judicial modification under Fla. Stat. 736.0412 is likely to be deemed a best case scenario by many clients, as they often prefer to avoid the expense

and delay of a judicial proceeding.

In order to proceed under Fla. Stat.

736.0412, the settlor must be deceased; a court must have been able to modify pursuant to Fla. Stat. 736.04113, as outlined above; there must be unanimous agreement of all trustees and beneficiaries (including a represented beneficiary); and there cannot be a charitable deduction or interest in the trust. If the trust was created prior to January 1, 2001, this section may not be used. (Under this statute, a revocable trust is “created” when the settlor dies.) Once again, there are strict RAP requirements that must be met if the trust was created after December 31, 2000. If the RAP term is 360 years, then Fla. Stat. 736.0412 may be used. If the RAP term is 21 years plus lives in being or 90 years, then Fla. Stat.

736.0412 may be used only if the trust terms expressly authorize non-judicial modification.

Conclusion An effective trust will meet current needs and incorporate the appropriate amount of flexibility, taking into consideration the settlor’s goals and future objectives.

Ideally the language of the trust will provide the opportunity to modify the trust if and as needed. When needed, judicial and non-judicial modifications are also available fix an obsolete trust. RG

Jennifer is an attorney with Green Schoenfeld & Kyle LLP, and focuses on estate planning, trust administration, taxation, probate, corporate, business and partnership law as well as wealth preservation. Previously, Jennifer was with a law firm in Maryland. Jennifer was also a forensic accountant, spending the majority of her prior career at KPMG LLP in Washington DC and London.

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17

Wake up, Florida!

Revising the constitution Sara Fitzpatrick Comito with Laird A. Lile, 20th Circuit, The Florida Bar Board of Governors

“People, are you kidding me?” chides the handsome spokesman greeting visitors to ProtectFlDemocracy.com. “Tim” is the face of The Florida Bar public education campaign to inform citizens about Florida’s constitution revision process. “Ignorance is not bliss,” he continues, accompanied by a sad trombone, which is fitting, given the shockingly low level of awareness among the general public of the activities of the Constitutional Revision Commission (CRC).

Why the outraged tone? Because the once-in-20-years revision process rewrites the state’s contract with the people. And the people – you and me – know very little about it. You know Laird A. Lile (pictured left) as one of two representatives for the Twentieth Judicial Circuit to The Florida Bar Board of Governors. He’s also one of 12 members appointed to The Florida Bar’s Special Committee for the 2017 Constitution Revision Commission.

Res Gestae interviewed him about the CRC, the Special Committee, and what you and your clients need to know.

Sara Fitzpatrick Comito: What is the function of The Florida Bar’s Special Committee for the 2017 Constitution Revision Commission?

Laird Lile: The special committee was established to monitor the activities of the 2017 Constitution

Revision Commission and coordinate the Bar’s role. The Board of Governors has agreed to be an authoritative and unbiased resource to the CRC. The special committee additionally will serve as a clearinghouse in reviewing CRC proposals for possible legislative or political action by The Florida Bar or its sections or committees. In addition, the special committee is coordinating the Bar’s informational and educational outreach campaign to the public on the CRC, “Protect Florida Democracy: Our Constitution Our Rights, Our Courts.”

SFC: What is The Florida Bar’s motivation in launching a public education campaign?

LL: In a recent survey of voters and likely voters, only 1 in 10 Floridians correctly identified the function of the CRC. The Florida Bar is launching an educational program to inform Floridians about the critical importance of the CRC and to further the Bar’s commitment to civic education and to ensure that our judicial branch continues to be fair, impartial, adequately funded and accessible. The program aims to improve knowledge by the public of the CRC while highlighting important topics including the separation and balance of powers, why the constitution works best as a limited document, and the importance of an

independent third branch.

SFC: Recognizing the general population knows next to nothing about the issue, how savvy do you think the legal community is in regards to the CRC, its purpose, and its process?

LL: Members of the Bar are generally knowledgeable about Florida’s constitution. Yet, many are not necessarily savvy about the CRC. Since the most recent CRC (20 years ago), membership in The Florida Bar has nearly doubled; so, nearly half of our membership have not been through a CRC experience. Increasing awareness and engagement in the work of the CRC is key to upholding our oath as attorneys to support our state constitution and maintain the respect due to courts of justice and judicial officers.

SFC: The judicial system only gets three representatives on the CRC. How would you characterize that breadth - and the appropriateness - of representation of our third branch of government?

LL: The committee does not think of the appointment process as creating “representatives” of one particular branch. Notably, although the Supreme Court only had three appointments, 16 of the 34 commissioners are members of The Florida Bar. Eleven Bar members are either chair or vice chair of the 12 standing substantive and procedural committees. Past Bar presidents Hank Coxe and Bill Schifino are chairs of the Ethics & Elections and Judiciary Standing Substantive Committees, respectively.

Several years ago, the Bar joined The Partnership for Revising Florida’s Constitution, which in its Citizens’ Guide to the CRC stressed the importance of these characteristics of commissioners: that they should be knowledgeable about government, from all walks of life, civic-minded, forward thinking and reflective of Florida’s diverse culture. The Bar is also offering to serve as an authoritative

and unbiased resource to all of the CRC committees and staff on issues or proposals pertaining to the administration of justice.

Also, through The Florida Bar Young Lawyer Division, we are helping to educate the commissioners on the contents of our state constitution through a series of webinars covering topics including: the history of the CRC and of the Florida Constitution; an overview of the Florida Constitution, how it is subdivided and the interplay of the various articles; and the contents of each of the 12 articles.

SFC: What lessons can we draw from the CRC’s process of 20 years ago?

LL: Perhaps not much, with respect to likely outcomes. Florida’s population has changed during the past 20 years.

The Florida Constitution now requires 60 percent, instead of a simple majority, of votes cast to make changes. With respect to process, nothing has changed: the Florida constitution remains the basic foundation of all government in Florida, and our citizens deserve to be informed of process and CRC recommendations, to be prepared to vote in November 2018.

SFC: What specifically should lawyers be paying attention to?

LL: As officers of the court and protectors of rights under the laws and constitutions of our country and our state, lawyers should be knowledgeable about the CRC, monitor its progress, and pay particular attention to any proposals that would adversely affect their clients’ rights and the separation of powers that is the foundation of our state government.

SFC: What about unintended consequences?

LL: Of course, unintended consequences can occur. By definition, the likelihood is reduced substantially with careful analysis from an authoritative unbiased source. The committee expects the Bar to be that

source, which should reduce, but not necessarily eliminate, the possibility of unintended consequences.

SFC: Anything on your radar that will affect the way attorneys have to practice or advise their clients?

LL: Not at present, but as expressed earlier, The Florida Bar is closely monitoring the CRC and reporting on its work through The Florida Bar News and other member communications.

In addition to referring to the Bar’s educational program website at www.

ProtectFLDemocracy.org, Bar members are encouraged to review the CRC’s website at www.FLCRC.gov to stay abreast of the work of the commission and its committees, as well as to be aware of the schedule of meetings and public hearings.

Perhaps alluding to Flannery O’Connor’s short story of a similar name, our handsome spokesman, Tim, reminds citizens, “The power you save may be your own.” Therefore, an attorney’s duty to pay attention to the CRC is even more crucial, as your clients will look to you to save theirs. RG

Who serves on the CRC? 15 Appointed by the Governor 9 Appointed by the Speaker of the Florida House of Representatives 9 Appointed by the President of the Florida Senate 3 Appointed by the Chief Justice of the Florida Supreme Court 1 The Attorney General of Florida For more information on the Constitution Revision Commission, please visit: revisefl.com SEPTEMBER 2017 | RES GESTAE

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Legal Lens YLD Holidays in July Summer Santa Spencer Cordell once again donned the suit and flip flops, and the YLD presented a midsummer holiday experience to foster kids with the Children’s Network of Southwest Florida.

YLD's After Hours Social Aloia, Roland, Lubell & Morgan graciously sponsored the YLD’s After Hours Social on Aug. 17 at the Downtown Social House.

Jack Morgan, Garrett McIntyre, Ty Roland

Jenna Persons, Spencer Cordell

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Are You a “Hardworking” Investor?

As we observe Labor Day, a celebration of the American worker. And you can apply some of the lessons of the workplace to your efforts as an investor.

For starters, be persistent . The most successful workers show up, day after day, and strive to overcome the inevitable obstacles that crop up. As an investor, you, too, need to be consistent in your habits – which means you should keep investing in all types of markets.

Also, be flexible. When good workers see that something is not going well, they change what they’re doing.

And when you invest, you need to be prepared to adjust your portfolio to meet changing circumstances.

Finally, be farsighted. Just as employees can visualize the end results of their labors, you should see your ultimate destination, such as a comfortable retirement – and you should stick with a strategy that can take you there.

Labor Day reminds us to appreciate the skills and dedication of all workers – and as an investor, you can put these same attributes to good use.

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GET READY FOR SOME FOOTBALL!

by Josh Milton

B

edlam. Hail Flutie. The band is in on the field. The Iron Bowl.

The Miracle at Michigan. The World’s Largest Cocktail Party. Just a few pieces of college football that come to mind as players and fans alike gear up for kick-off of the game’s 148th season. For many, as the summer heat winds down to crisp fall in parts of the country, these pieces bring back memories of tailgating, throwing around the pigskin, and cheering on your Gators, Seminoles, Buckeyes, Crimson Tide, et al as they battle it out on the gridiron in towns from State College, Pa. to Norman, Okla. to Eugene, Ore. Many members of the LCBA at one time attended some of the fine institutions in the nation that play college football.

Well-respected lawyers that, as college co-eds, painted their faces maize and blue, or screamed F-L-O-R-I-D-A S-T-AT-E, Florida State, Florida State, Florida State, WOO! or even yelled GO GATORS! Attorneys that partook in throwing massive amounts of toilet paper around oak trees at Toomer’s Corner, cheered as the “i” was dotted in the horseshoe, and got emotional at the pageantry of cadets from the Army and Navy sternly marching into the stadium in Philly.

So, as you conjure up some of your great memories of college football, take a look at what some of our members remember about the days of Sooner Schooner, Handsome Dan and Hook ‘em Horns and get ready for some football! RG

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Robert Shearman – Henderson Franklin Starnes & Holt, P.A. Through a SWFL Seminole Boosters fishing tournament I organize, I became friends with William Floyd, Super Bowl winner with the San Francisco 49ers and All American running back on FSU’s 1993 National Championship team. He now calls FSU football games with announcer Gene Deckerhoff. Last year, I joined William, Gene and my son Brendan (who just begin FSU law school) in the broadcast booth.

Kristiana Soto, Office of the Public Defender Mom wears garnet and gold, dad wears orange and blue, baby in middle - rivalry bound to continue!

Diana Dawn Jezik – Associates and Bruce L. Scheiner Diana’s English bulldog, Jenny, longs for football season to start back up!

John Miller – Henderson Franklin Starnes & Holt, P.A. John Miller and Kayla Richmond enjoy last year’s Florida Gators season opener.

Pete Doragh, Doragh Law Firm 2016 FSU vs. UF tailgate with Pete Doragh, Shannon Johnson and 3 week old William Johnson first game day!

Danielle Levy Seitz – Aloia Roland Lubell & Morgan, PLLC Jonathan Martin, Amy Martin, David Seitz and Danielle Levy Seitz tailgated before the first Gator game last season. Danielle said, “The four of us have season tickets and try to make it up to Gainesville for as many home games as we can. Go Gators!”

Richard Johnston, Richard Johnston Law Former University of Florida cheerleader Richard Johnston Jr. served as Mr. Orange and Blue for 31 consecutive seasons, and handed off the mic in 2014.

Amy D’Alessandro Martin - Office of the State Attorney Kayla Richmond, Danielle Levy Seitz, Amy D’Alessandro Martin and Agnieszka Osowicka tailgating for the UF vs.

South Carolina game last year.

Joe Cerino, Law Office of Joseph Cerino This past bowl season, Amy (Judge Hawthorne) surprised me with a great Christmas gift, tickets to the Orange Bowl! What an awesome gift from a UF Law grad! My FSU Seminoles beat Michigan in a thrilling 33-32 contest, with FSU scoring the game-winning touchdown in the final minute. Picture is of me losing my mind after FSU scored the winning touchdown.”

Bob Burkett, Burkett Law Office Notre Dame-Navy Game Nov. 2, 2013. Despite the weather, we enjoyed a Yuengling tailgate and a Notre Dame victory at my son’s Alma Mater. The final score was 38-34.

Frank Aloia - Aloia, Roland, Lubell & Morgan Back row (left to right): Me; former FSU 2x All-American and NJ Jet 1st round draft pick Marvin “Shade Tree” Jones; my friend Paul Orbe. Front row, my brother, Dan Aloia. This photo was taken during the pre-game tailgate before the FSU/Clemson game last October 29, 2016.

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The Dish

Never be a stranger at La Corte Bistro

By Sara Fitzpatrick Comito

W

hen Stacy Sherman was growing up, her mom liked to tell her, “You’ve never met a stranger.”

Stacy told me, “I’m not sure she meant it in a good way.” As most mothers could relate, a daughter’s kind, trusting nature could feel like a mixed blessing. Today, Stacy is still very kind, and probably a little more discerning. She also has a daughter of her own.

Visitors to La Corte Bistro are likewise made to feel like strangers no more, between the restaurant’s elegant décor and enthusiastic servers who obviously take great pride in their employer, the food and their profession. Named for its stunning courtyard, it was the perfect place to hide away from the ofteninelegant outside world and discuss the goings on of the LCBA Random Acts of Kindness Committee, of which Stacy (naturally) is a member.

2013, La Corte Bistro has cleaned up its historic architecture’s excellent bones and liberally applied color and light. The result is southern hospitality meets continental sophistication, and it’s truly lovely.

I can characterize the food the same way.

Each dish is presented in a manner that underscores the chefs’ respect for their

Opening last November, the owners performed an act of kindness on behalf of the existing courtyard and buildings that had a long run as Brew Babies Garden Bistro. Just as these pages have undergone a cosmetic redesign since I reviewed that restaurant in January of

dressing tied the whole thing together.

ingredients and their diners. Colors, textures and provenance are left to speak for themselves in thoughtful combinations and plating. Seasoning and sauces are never heavy. Portions are judicious, not intimidating.

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Our table ordered the burrata as a first course. Through some amazing alchemy, Italian cheesemakers have learned how to encapsulate creamy stracciatella, an Italian buffalo cheese, inside a wobbly shell of fresh mozzarella. Breaking it open causes the runny liquid inside to spill over the peppery arugula and gardenfresh cherry tomatoes it was served on. A light blessing of pesto and balsamic

A tomato brie melt offered a grownup answer to the grilled cheese sandwich, featuring warm brie, tomato, pear, spinach and onion on sourdough. The ingredients bounced off each other while the cheese and bread harmonized. A side of justcreamy-enough tomato bisque, and no one’s too sophisticated to dunk.

Red quinoa, figs and roasted almonds added a textural counterbalance to a kale salad that formed a bed for grilled chicken dressed with a fresh mango salsa and spirals of red onion. A Florida

twist on a lobster roll was stuffed with the tender, buttery white flesh of those delicious critters that Keys fishermen refer to as “bugs” dressed with avocado, cilantro, lime zest and mayo (of course).

Attempting to share this update of a nostalgic New England food was a test of magnanimity. But hey, we were talking kindness, after all.

Cooperative will include a friendly competition among the five counties in the Twentieth Judicial Circuit.

A twin sheets and comforter sets drive will bring needed supplies to Bedz for Kidz in October. A turkey drive will take place in time for Thanksgiving. Of course, individual members and firms are coordinating their own kind acts. Are you among them? Get involved by contacting the Kindness Committee co-chairs Shirlarian Williams at shirlarian@snwlegal. com and Amanda Bartley at abartley@ chartwelllaw.com.

Stacy told me about upcoming events, many of which involve showing kindness through food. This month, the Legal Food Frenzy to benefit Community

Show yourself a little kindness and discover La Corte Bistro. Explore the garden with a glass of wine. Don’t be a stranger to that friend you haven’t seen

in a while. Invite him or her along. Maybe that friend is you. RG

La Corte Bistro 1520 Lafayette Street, Cape Coral lacortebistro.com | 239-542-2224 Lunch: 11:30 a.m.-2:30 p.m., Monday - Friday Dinner: 5 p.m.-10 p.m. Monday - Saturday 5 p.m.-9 p.m. Sunday

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.

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Join us on the red carpet for a black tie-optional masquerade ball Friday Oct. 13 ~ Sidney & Berne Davis Art Center Cocktails at 6, delectable surf & turf dinner at 7, silent auction and other fun until 10.

Early bird pricing: $95 • $75 for our distinguished members of the judiciary Proceeds benefit the LCBA Foundation • Exciting sponsorship opportunities are now available.

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SEPTEMBER 2017 | RES GESTAE

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LCBA JUDGES CARE Senior Judge Hugh Starnes

Corkscrew Regional Ecosystem Watershed Land & Water Trust, volunteer CREW is a wonderful SW Florida resource, providing hiking trails, guided tours by ecological experts, and childrens’ field trips highlighting the significance of preserving natural lands.

A prime focus of CREW’s management of publicly and state-owned lands is the Corkscrew Marsh, which winds its way from State Road 82 just east of the intersection with Corkscrew Road all the way to the northeast of Bonita Springs and the headwaters of the Imperial River.

My father leased 12 square miles of natural pasture land for cattle grazing in the area. At the time, it was an average-sized native-pasture ranch, costing him three cents an acre. I still lease cattle grazing land on the edge of the marsh from Collier County, and periodically conduct hiking events there. Landmark structures include an 1875 heart pine survey stake, the remains of an old still, and a boardwalk into a cypress head where the women of the Corkscrew settlement washed their family’s clothes. I’d gladly volunteer to do one of these hikes for a Bar group.

Click on “visit CREW” at www.crewtrust.org. Some of the resident animals are shown from motionactivated cameras on site. Don’t worry, they are seldom seen because they don’t want to be around you!

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LCBA MEMBERS CARE Kathleen A. Smith, Esq.

Hope Clubhouse, board member Having practiced criminal law for the past 27 years, I’ve seen countless clients living with mental illness cycle through jail after repeatedly being arrested for low-level nuisance offenses. These arrests frustrated me because this population of clients had no business being in jail in the first place, as jail is not a place where mentally ill people get well. And trying to find alternatives to jail for my mentally ill clients, who were often homeless and unemployed in a county with one of the lowest per-capita treatment funding levels in Florida, was disheartening to say the least.

But then there was hope. In 2012, I was honored to join the Board for Hope Clubhouse of Southwest Florida. The Clubhouse offers a community of support for adults living with mental illness by providing access to paid employment, education, housing and wellness. The Clubhouse is work-focused and trains members in its business, culinary or horticulture units. The skills learned here translate into paid internships and jobs in our community.

To find out more information on how you can help “Change Lives Through Hope,” visit our website at www.hopeclubhouse.org and plan to join us 11 a.m.-1:30 p.m. on Monday, Oct. 30 at Broadway Palm Dinner Theatre to kick off our Faces of Hope Campaign.

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LCBA MEMBERS CARE Michael Lehnert, Esq.

Big Brother, Big Sister of the Sun Coast, community board member and a "Big" My affinity for Big Brothers Big Sisters (BBBS) started at Bishop Verot, when someone from the organization came in and showed us pictures of beautiful, smiling children while telling us stories about their struggles. The eye-opening presentation left a lasting impression on me.

About two months into starting my job at Henderson Franklin, I jumped at the opportunity to join the community board for BBBS of the Sun Coast. A couple of months later, I embarked on a mentoring relationship with my Little, Dominick.

Shy at first, our relationship was a bit awkward as most beginnings of relationships are, especially between a 27-year-old and an elementary schoolaged child. However, after one trip to SkyZone, we were buddies. The smile on his face as he learned to bounce off the trampoline wall was priceless.

Smiles like those are why I joined BBBS, and what the program is all about. We match children who need a little extra support in some aspect of their life with big-hearted Bigs who generously donate their resources to provide life changing support. The only thing they ask for in return is the chance to see a smile like Dominick’s. Learn more at www.bbbssun.org.

Photo left: Attorneys Michael Lehnert and Sarah Spector with their littles.

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VP of Treasury Management

239-274-6234 lgolden@sancapbank.com

239-274-6237 kdiiorio@sancapbank.com

239-274-6232 bcountryman@sancapbank.com

Senior VP-Director of Retail Operations

Beth Countryman

7 convenient Sanibel and Fort Myers locations

Locally owned and operated

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RES GESTAE | SEPTEMBER 2017

www.SanCapBank.com

LCBA Member-at-Large Nominations are Now Open LCBA Member-at-Large nominations are now open. A nomination form is available at leebar. org, or bit.ly/2018LCBAMAL and will also be delivered via e-blast. Please submit your nomination online or to info@leebar.org. You may nominate yourself or another person you believe would make a good leader for the organization.

Pursuant to the LCBA Bylaws, there are two Member-at-Large positions to be filled by annual election. Only LCBA members in good standing may nominate and be nominated.

The Deadline for Nomination will be the LCBA Membership Luncheon on September 15th.

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Lace up your running shoes and race down the charming brick-lined streets of historic downtown Fort Myers in support of Lee County Legal Aid Society.

Afterwards, join us at the LCBA's Annual BENCH/BAR-b-que with the Glades & Hendry Counties Bar Associations.

Details coming soon.

Sunday, November 12th, 2017 Centennial Park, Historic Downtown Fort Myers 7:30am - Participant Arrival 8:00am - Run Begins 8:05am - Walk Begins ​$35 Registration Fee

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SEPTEMBER 2017 | RES GESTAE

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Post a kind act with the #KindLee hashtag to see your picture here.

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NOW WITH 2 LOCATIONS - FORT MYERS AND NAPLES LOCAL COURT REPORTERS SERVING OUR LEGAL COMMUNITY ONLINE scheduling with 24/7 access to all repository files Nationwide scheduling • Competitive rates Jackie Burrell, RPR 10 years Firm Ownership 25 years Court Reporting

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Phone: 239.334.1411 | Fax: 239.334.1476 2180 West First Street, Suite 120, Fort Myers, FL 33901

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Please call Neena at 239-560-9129 SEPTEMBER 2017 | RES GESTAE

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In The News Marc A. Huling has been appointed partner-in-charge of the Naples office of Roetzel & Andress. A partner in the Business Litigation Practice Group, he has been a member of the firm for nearly 15 years.

He was promoted to partner in 2011.

Huling focuses his practice on business litigation, representing clients in a variety of matters involving business tort and contract litigation. He represents financial institutions, developers, municipalities, employers, corporations and individuals in business contract and injury disputes. Huling is the immediate past president of the Collier County Bar Association.

Kristine A. Shrode has joined the attorneys at the Martin Law Firm, focusing her practice on family law, including dissolution of marriage, paternity, injunctions for protection against domestic violence, special education matters, and civil litigation.

Shrode previously practiced family law at The Shelter for Abused Women & Children and Legal Aid Service of Collier County, where she served victims of domestic violence and abused and neglected children. She brings more than 12 years of litigation experience and is a member of the Family Law, Public Interest and Employment Law sections of the Florida Bar. Kayla Richmond of Henderson, Franklin, Starnes & Holt, P.A. was elected to serve on the Harry Chapin Food Bank of Southwest Florida’s board of directors. Her first major role will be to chair the 10th Anniversary Harry Chapin Hunger Walk scheduled for January 20, 2018 at Miromar Outlets.

Richmond focuses her practice in the areas of divorce, marital and family law. She handles dissolution of marriage (divorce), custody, paternity, child support and domestic violence cases. She is president elect and chapter representative for the Lee County Association for Women Lawyers and president of the LCBA Young Lawyers Division.

Attorney and certified planner Katie Berkey has joined Kimley-Horn’s land development team in Fort Myers. She has provided planning services of commercial, residential,and telecom projects across Florida, as well as telecom projects in more than 35 jurisdictions outside of Florida.

Berkley's planning experience includes researching and analyzing policy and tracking legislation related to growth management and the environment; permitting; preparing land development applications; and representing clients in local government administrative matters before city and county government.

Juan D. Bendeck and John J. Cunniff of Hahn Loeser & Parks LLP have earned board certification from The Florida Bar effective August 1, 2017.

A Board Certified Specialist in Intellectual Property Cunniff, concentrates his practice in the area of patent law.

A Board Certified Specialist in Wills, Trusts and Estates, Bendeck focuses his practice in estate planning, estate administration and asset-protection planning.

Pavese Law Firm has received Junior Achievement of Southwest Florida’s JA Breaking Par at Grandezza Perennial Award, awarded to sponsors of the “JA Breaking Par at Grandezza” who have been ardent supporters of the event for the past five years.

A portion of the proceeds help fund JA of Southwest Florida’s annual CEO Academy, a week-long business school summer camp held for rising high school juniors and seniors in partnership with FGCU Lutgert School of Business. Proceeds from previous Breaking Par events have provided funding totaling more than $200,000 in support of the CEO Academy and additional JA programming.

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In The News Andrew Marcus has relocated to the Fort Myers office of GrayRobinson. He joined the firm’s Fort Lauderdale office in 2011. He focuses his practice in commercial, business and real estate litigation as a trial lawyer for institutional, business and individual clients.

As a partner with GrayRobinson, Marcus has represented Fortune 500 companies in complex commercial litigation matters throughout the State of Florida in both state and federal court. He is also a former prosecutor with the State Attorney’s Office in Fort Myers.

Jamie B. Schwinghamer and Allison B. Christensen of Hahn Loeser & Parks have been sworn in for another year as members of the Collier County Women’s Bar Association’s (CCWBA) board of directors. Schwinghamer was named secretary and sponsorship committee chair, and Christensen was named membership committee chair.

Laird A. Lile, a board-certified wills, trusts and estates attorney in Naples, moderated a presentation during the 37th annual Legislative and Case Law Update seminar for the Real Property, Probate and Trust Law Section of The Florida Bar titled, “Technology and Ethics for Resilient RPPTL in Florida: Yes, I Now Get It.” The presentation’s acronym, “terrifying,” is a nod to the stringent rules and requirements for Florida lawyers in the technology world, including privacy of client documents, redacting of information in court filings, network security, and other significant considerations within the legal profession.

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Partnering with Florida Businesses in the Courtroom With a depth of more than 150 litigators across 17 offices, we partner with you to develop a case strategy with your business interests in mind. From settlement negotiations and mediations to routine business disputes and complex litigation, we’ve got you covered.

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Joe Coleman

Mark Anderson

Florida Supreme Court Certified Mediator AV® Preeminent Rated, Martindale-Hubbell’s Peer Review Ratings

Bill Dillon

AV® Preeminent Rated, MartindaleHubbell’s Peer Review Ratings Judicial Clerk to the Hon. John E. Steele, U.S. District Court for the Middle District of Florida (2001 – 2003)

David Potter

Florida Super Lawyers Rising Star Gulfshore Business magazine’s Forty-Under-40 (2015)

Jarred Duke

AV® Preeminent Rated, MartindaleHubbell’s Peer Review Ratings Judicial Clerk to the Hon. John E. Steele, U.S. District Court for the Middle District of Florida (2003 – 2004)

Former legal intern with the United States Attorney’s Office for the Southern District of New York

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Leah Kirby, Vice President, River District Office Manager; Susan Nasworthy, Senior Vice President, Retail Administrator; Darrin Grotrian, Sanibel-Captiva Assistant Office Manager; John Ammons, Vice President, Cleveland Avenue Office Manager; Willy Ocasio, Assistant Vice President, Sanibel-Captiva Office Manager

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