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REs Gestae - July 2018

Page 1

JULY 2018

GENDER

LAW

FL Bar Past President, Michael Higer

Honorable Devin George

R. Noelle Branning, Esq.

Ita Neymotin, Esq.

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


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Contents

features 18 A Bid to Improve Mental Health

On the cover: Michael J. Higer, Florida Bar Immediate Past President, Hon. Devin George, R. Noelle Branning, and Ita Neymotin

by Chuck Myron

20 Gender Equality Loading... The Florida Bar's mission of

gender equality remains a work in progress

18

by Chuck Myron

AD DIRECTORY Barbara Pizzolato

25

Bill Perry and Will Zariske

17

Brad Jessen, Edward Jones

13

Britton G. Swank, P.A.

35

Business Observer

27

Calvo & Calvo Attorneys at Law

19

CONRIC PR & Marketing

28

Copy IT

25

CopyLady 7 DeMine Immigration Law Firm

33

Denise Kennedy

35

Donna Tisch

29

Edison National Bank

BC

Fort Myers Court Reporting

34

Garvin Law Firm

26

Henderson, Franklin, Starnes & Holt, P.A. 29 Joe Viacava Law

20

Joshua Tree Counseling

15

Kelleher Firm

32

Kempton P. Logan

11

Law Firm of Scott T. Moorey

27

Law Offices of Dennis L. Webb

27

32 100 Club

Leonard P. Reina

13

34 LCBA Judges Spotlight

Leslea Ellis, LLC

35

Livingston Loeffler, P.A.

19

McHale, P.A.

33

Merit Court Reporting, Inc.

37

departments 6

Letter from the President by Dan Endrizal, Esq.

8

Letter from the Executive Director

by Hon. Tara Pascotto Palu

by Mary Beth Fletcher, Esq.

by Lisa Poulin

10 Calendar of Events 12 Ethically Speaking by Henry Lee Paul, Esq.

36 LCBA Members Spotlight

Musca Law Office, Inc.

38 In The News

Panther Printing Ringsmuth, Day & O'Halloran, PLLC Robins/Kaplan, LLP

14 Practice Section

Real Property, Probate, Trust Law by Jamie B. Schwinghamer, Esq.

16 YLD Spotlight by Joel Hyatt, Esq. 24 Post-tournament Giving

24

Lifts LCBA Foundation

26 #KindLee Spotlight

Darren Wallace

28 New Members 30 The Dish

4

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RES GESTAE  | July 2018

IBC

30

3 37 9 36

Roetzel & Andress

17

Schooner Bay Reality, Inc.

IFC

Sheldon E. Finman, P.A.

9

Spivey Law Firm, P.A.

5

Sproat Workplace Investigations

11

The North Law Firm, P.A.

33

Total QuickBooks Solutions

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Veranda Restaurant

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Von Ahn & Associates

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William DeForest Thompson Jr., LLC

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Letter from the president I would like to thank everyone who attended our Second Annual Diversity Luncheon and Workshop. It was great to hear Michael Higer, the immediate past president of The Florida Bar, speak about issues related to race after he did such an outstanding job last year addressing issues related to gender. Turn to page 20 to see how Higer and The Florida Bar have followed through on the gender initiatives they’ve been working on over the past year. I would also like to thank Diversity and Inclusion Committee Co-Chairs Ita M. Neymotin and R. Noelle Branning, and Judicial Liaison Judge Devin S. George. I encourage everyone to participate in the latest project by #KindLee, in which we will help SalusCare, which provided mental health services to approximately 16,000 members of our community last year. We are helping them with their first ever silent auction at their annual fundraiser — all you have to do is contribute something small, and together the LCBA can make a significant impact on the lives of others. Since so many people who come through the court system are impacted by mental health issues, it is something that is important to the LCBA. See page 18 to learn about the inspiration behind the effort and how to get involved. I wish everyone a Happy Fourth of July. Here are some fun facts about the Fourth: •

Contrary to popular belief, only two Founding Fathers signed the Declaration of Independence on July 4, 1776. The majority of signers penned their signatures on August 2, 1776.

•

The holiday does not celebrate the signing of the Declaration; it celebrates the adoption of the Declaration of Independence by the Second Continental Congress.

•

Independence Day became a federal holiday in 1870.

•

Our country now boasts 318.9 million citizens, but on the first Fourth of July there were only 2.5 million. Daniel J. Endrizal III, Esq. Daniel.Endrizal@earthlink.net | 239.728.8555

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RES GESTAE  | July 2018

LEE COUNTY BAR ASSOCIATION ADMINISTRATION

Executive Director ~ Lisa Poulin Lawyer Referral Service Coordinator ~ Kheila Perez

EXECUTIVE COUNCIL

President ~ Daniel J. Endrizal III, Esq. Vice President ~ John Webb, Esq. Secretary ~ Blake Hampton, Esq. Treasurer ~ Matt Roepstorff, Esq. Board Members: Kathy Smith, Esq. • Tiffany Pereira, Esq. Alina Gonzalez-Dockery, Esq. President Emeritus ~ Kelly L. Fayer, Esq. YLD President ~ Joel Hyatt, Esq.

COMMITTEE CHAIRS Law Related Education T. Rankin Terry, Esq. Law Week Hon. John S. Carlin Mock Trial Shaina Zuppke, Esq. & Maria Berrette, Esq. Pro Bono Timothy A. McCan II Annual Charity Golf Tournament Shannon Puopolo, Esq. & Kenneth A. Jones, Esq. Bench-Bar Gala Danielle Butler, Esq. Diversity and Inclusion Ita Neymotin, Esq. & R. Noelle Branning, Esq. #KindLee Amanda Bartley, Esq. & Kelly L. Fayer, Esq.

PRACTICE SECTION CHAIRS Alternative Dispute Resolution Anne Dalton, Esq. & Bill Merchant, Esq. Appellate Alex Brockmeyer, Esq. & Matthew Irwin, Esq. Criminal Law Marisa Boysen, Esq. & Leah Harwood, Esq. Elder Law Blake Hampton, Esq. & Amy McGarry, Esq. Family Law Magistrate Gilberto Perez & Kati Calvo, 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. & Jennifer Hammond, Esq. Solo & Small Firm Jason Gunter, Esq. & Conor Foley, Esq. Tort Litigation Preston John (PJ) Scheiner, Esq.


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Letter from the executive director July’s arrival means half of 2018 has come and gone, believe it or not. It’s also the perfect time to reflect on where we’ve been and where we’re headed.

SERVING THE CITIZENS AND LEGAL COMMUNITY OF LEE COUNTY SINCE 1949

239.334.0047 resgestae@leebar.org

Staff

PUBLISHER

The Diversity Luncheon we just held on June 29 provided an eyeopening look at what we as a legal community need to accomplish to achieve true inclusion and equal opportunity. The bar can play a leading role in making the necessary changes and setting an example for others to follow, and I’m excited to be able to facilitate that.

Connie Ramos-Williams | 239.690.9840

But I can’t do it alone. Trying to embrace diversity with the ideas of just one person is like trying to win a race by running backward. The meaning of the word “diversity” is so broad, it affects everyone in the bar. I need your input to help me identify goals, prioritize them, and put the plan into action.

CONTRIBUTING WRITERS

So, let’s start a dialogue. Tell me which issues related to diversity are most important to you. Where do you think the bar could do a better job representing everyone involved in the practice of law? My door and my inbox are always open. We can take this approach on lots of other fronts. What can the bar do better to serve you? Tell me what sort of programs, resources and events you’d like to see us provide. We do everything from continuing legal education to public outreach to shrimp boils, so we may already have what you’re looking for — if that’s the case, great! If not, you may just have the perfect idea we’ve been waiting for. We’ll never know unless you share it! As we plan for the second half of 2018, let’s remember we can accomplish much more as a team than we can as a group of individuals. It’s thrilling to see the enthusiasm so many judges and attorneys bring to the bar, but I know there are so many more who could and should be more involved.

EDITOR-IN-LAW Kelly L. Fayer, Esq.

EDITOR-IN-LAW-IN-TRAINING Tiffany Pereira, Esq.

MANAGING EDITOR Chuck Myron

CREATIVE DIRECTOR April Bordeaux

ADVERTISING DIRECTOR Linda Fiore | 239.690.9840

Daniel Endrizal, Esq. Lisa Poulin Henry Lee Paul, Esq. Jamie B. Schwinghamer, Esq. Joel Hyatt, Esq. Chuck Myron Chelle Koster Walton Hon. Tara Pascotto Paluck Mary Beth Fletcher, Esq.

CONTRIBUTING PHOTOGRAPHER Jim Jett Photography

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 we 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© 2018 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.

We may sometimes oppose each other in the courtroom, but when it comes to what the legal community can do for the community at large, we are all in this together. Lisa Poulin, Executive Director LPoulin@leebar.org | 239.334.0047

8

RES GESTAE  | July 2018

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calendar of events Some dates for 2018 Section Meetings have not been confirmed - Check leebar.org for details!

July 4

INDEPENDENCE DAY

LCBA office and courts closed

August 3

September 14

Noon-1 p.m., location TBA. All attorneys under age 35 or in their first five years of practice are invited to attend.

Noon-1 p.m., Courtroom 5G, Lee County Justice Center. Guest speaker Marve Ann Alaimo of Porter Wright Morris & Arthur will be discussing potential pitfalls when structuring devises of real property.

Young Lawyers Division Monthly Lunch Meeting

August 10

Real Property, Probate, Trust Law Brown Bag Lunch

July 6

Young Lawyers Division Monthly Lunch Meeting

Noon-1 p.m., location TBA. All attorneys under age 35 or in their first five years of practice are invited to attend.

July 11

General Civil & Business Litigation Practice Meeting

Noon-1 p.m., Courtroom TBA, Lee County Justice Center, 1700 Monroe St., Fort Myers.

July 12

Criminal Law Practice Section Lunch Meeting

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

Noon-1 p.m., Location TBD

August 15

Alternative Dispute Resolution Meeting

Real Property, Probate, Trust Law Brown Bag Lunch Noon-1 p.m., Courtroom 5G, Lee County Justice Center. Guest speaker Jack Minish will discuss the state of estate sales.

July 19

Family Law Section Brown Bag Lunch

11:45 a.m.-1 p.m., Courtroom 5C, Lee County Justice Center, 1700 Monroe St., Fort Myers. For more information and registration, please visit www.leebar. org/events/calendar.

September 20

Family Law Section Brown Bag Lunch

Noon-1 p.m., Hearing Room 4O, Lee County Justice Center, 1700 Monroe St., Fort Myers.

11:45 a.m.-1 p.m., Courtroom 5C, Lee County Justice Center, 1700 Monroe St., Fort Myers. For more information and registration, please visit www.leebar. org/events/calendar.

August 16

October 7

Family Law Section Brown Bag Lunch

11:45 a.m.-1 p.m., Courtroom 5C, Lee County Justice Center, 1700 Monroe St., Fort Myers. For more information and registration, please visit www.leebar. org/events/calendar.

September 3 LABOR DAY

July 13

Real Property, Probate, Trust Law Brown Bag Lunch

LCBA office and courts closed

September 7

Young Lawyers Division Monthly Lunch Meeting

Noon-1 p.m., location TBA. All attorneys under age 35 or in their first five years of practice are invited to attend.

September 13

Criminal Law Practice Section Lunch Meeting

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

Young Lawyers Division Monthly Lunch Meeting

October 12

Real Property, Probate, Trust Law Meeting

October 18

Family Law Section Brown Bag Lunch

October 31

Alternative Dispute Resolution Practice Section Meeting

November 2

Young Lawyers Division Monthly Lunch Meeting

November 8

Criminal Law Practice Section Monthly Meeting

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 2018

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RES GESTAE  | July 2018


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Ethically speaking BY HENRY LEE PAUL, ESQ.

Lawyer suspended for securing fee with title to client’s Lamborghini The Supreme Court again gave warning to lawyers that engaging in a business transaction with a client is fraught with peril. In a recent opinion, the court suspended a lawyer for three years for violating almost every provision of Rule 4-1.8 (Conflict of Interest; Prohibited and Other Transactions) as well as numerous other rules. In the Florida Bar v. Parrish, SC15-1988, 2018 WL 2049999 (Fla. 2018), the conduct of the respondent provides an example of almost everything a lawyer should not do when engaged in business with a client. Naples attorney Jon Douglas Parrish improperly secured a fee at the beginning of representation by taking title to a client’s Lamborghini. The security agreement provided for the client to sign the title over “in blank” to the lawyer. The client was given 90 days to sell the vehicle for at least $30,000, which was to be paid to the lawyer upon closing of the sale. The security interest further provided that the lawyer would take possession of the car if the client didn’t sell it within 90 days. The lawyer then had the option to either sell the car and keep the proceeds or to keep the Lamborghini and credit an amount of $80,000 toward fees incurred or to be incurred by the client. In addition to taking a security interest in the Lamborghini, Parrish engineered a series of complicated transactions in the litigation involving real estate that placed his personal interests above that of his client. Incredibly, Parrish loaned money directly to opposing parties that enabled them to pay back taxes on property that was the subject of the litigation. In exchange for the loans, Parrish obtained a mortgage interest in the property from the opposing parties. Parrish persuaded his client to subordinate his interest in the property. Parrish also tried to negotiate a

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RES GESTAE  | July 2018

settlement that created a business that would receive the property. He was to have an ownership and management interest in the business. In addition to violating the disclosure and consent requirements of Rule 4-1.8(a), Parrish also violated Rule 4-1.8(e) (Financial Assistance to Client) and Rule 4-1.8(i) (Acquiring Proprietary Interest in Cause of Action) by essentially subsidizing the litigation through loans to the opposing parties. The court rejected Parrish’s argument that his mortgage on the property was not a proprietary interest in the litigation. If any lawyer decides to take the risk of engaging in a business transaction with a client, they must strictly comply with the client disclosure and consent provisions of the Rule 4-1.8(a). A lawyer may not do business with a client or obtain an ownership, possessory, security or other interest adverse to the client, unless: 1) the terms are fair and reasonable and fully disclosed in writing, 2) the client is advised in writing it is desirable to obtain advice of independent counsel regarding the transaction, and 3) the client gives informed consent, in writing and with their signature, about the essential terms of the transaction, the lawyer’s role, and whether the lawyer represents the client in the transaction. The lesson to be learned from the Parrish case is that engaging in a business transaction with a client may place the privilege of practicing law in peril. ⚖ Henry Lee Paul is a former Bar Counsel for the Florida Bar 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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July 2018 | RES GESTAE

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Real property, probate and trust law PRACTICE SECTION BY JAMIE B. SCHWINGHAMER, ESQ.

Fiduciary Lawyer-Client Privilege:

A Long Road to Confi dentiality The extent to which fiduciary lawyer-client privilege can be invoked in real property, probate and trust law has been an open question in Florida for several years. As attorney Jamie B. Schwinghamer details, resolution will likely remain elusive. ~ Kenneth Kemp, Esq. and Jennifer Hammond, Esq., co-chairs

A

s we are all undoubtedly aware, Florida Statutes Section 90.502 sets forth the ground rules for those communications protected by the lawyerclient privilege. Section 90.502(3) lists those individuals and entities who may claim the privilege. Clients, guardians of clients and personal representatives of deceased clients are among the list. However, it was not clear whether the fiduciaries themselves, such as trustees, personal representatives and guardians, could invoke the lawyerclient privilege to shield their communications with the lawyers representing them in their fiduciary capacities from disclosure. The Florida Second District Court of Appeal touched upon this issue twice, once in 2004 and once in 2006. See Jacob v. Barton, 877 So. 2d 935 (Fla. 2d DCA 2004); see also Tripp v. Salkovitz, 919 So. 2d 716 (Fla. 2d DCA 2006). In Jacob, the Court reviewed a trial court order compelling the production of billing records maintained by a trustee’s attorney. The Second District Court of Appeal overturned the trial court’s order and instructed the trial court to conduct an in camera inspection of the attorney’s billing records to determine whether the trustee, or the beneficiary, was the “real client” and therefore the holder of the lawyer-client privilege. In Tripp, the court used its holding in Jacob to justify a similar in camera inspection of communications between a guardian and his attorney. In 2011, the Florida Legislature enacted Florida Statutes Section 90.5021, which finally made it clear that “[a] communication between a lawyer and a client acting as a fiduciary is privileged and protected from disclosure under s. 90.502 to the same extent as if the client were not acting as a fiduciary.” The implementation of this statute

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RES GESTAE  | July 2018

meant that those individuals and entities serving as fiduciaries (trustees, personal representatives, guardians, etc.) could finally invoke the lawyer-client privilege to shield communications with their attorneys from unwarranted disclosure … or so we thought. On July 10, 2014, the Supreme Court of Florida refused to adopt the Florida Bar Code and Rules of Evidence Committee’s recommendation to adopt Section 90.5201 and amend the Florida Evidence Code. See In re Amends. to Fla. Evidence Code, 144 So. 3d 536, 537 (Fla. 2014). Instead, the Supreme Court held that it declined “to follow the Committee’s recommendation to adopt the new provision of the [Evidence] Code because [it] question[ed] the need for the privilege to the extent that it is procedural.” Id. This opinion baffled the legal community. Fiduciaries and their attorneys were once again left in limbo, with no guidance regarding whether the fiduciary lawyer-client privilege, as enacted by Section 90.5021, could be relied upon. From December of 2013 through early 2017, numerous scholars attempted to dissect the Supreme Court’s rhetoric and determine the status of the fiduciary lawyer-client privilege in Florida. Unfortunately, answers were few and questions were many. Then, on May 30, 2017, the code and rules of evidence committee, in conjunction with the Florida Bar Probate Rules Committee, filed an out-of-cycle report requesting that the Supreme Court again consider an amendment to the Florida Evidence Code consistent with Section 90.5021. The report claimed that the Supreme Court’s refusal to adopt the fiduciary lawyer-client privilege, to the extent it was procedural, led to confusion on the part of lawyers who represented fiduciaries, and trial court judges, across the state.


On Jan. 25, 2018, the fiduciary lawyer-client privilege finally exited the long and winding road it had been traveling for nearly seven years. Having been swayed by the report, the Supreme Court issued a second opinion, this time adopting Section 90.5021 to the extent it was procedural. In re Amends. to Fla. Evidence Code, 234 So. 3d 565 (Fla. 2018). The Supreme Court retroactively applied the adoption to June 21, 2011, the date that Section 90.5021 became law. See ch. 2011-183, § 14, Laws of Fla. In the four months since the Supreme Court issued its opinion, there have been no reported appellate opinions addressing the fiduciary attorney-client privilege. However, with millions of dollars often at stake in probate, trust and

guardianship cases, it is likely that some crafty litigators will seek to challenge to the scope of the privilege, or the retroactive application thereof. Only time will tell if the fiduciary lawyer-client privilege’s extended road trip is over after all. ⚖ Jamie B. Schwinghamer, Esq. is a Shareholder in the Naples office of Roetzel & Andress, LPA. She focuses her practice on estate, trust and guardianship litigation. Schwinghamer is a member of the Florida Bar Real Property, Probate & Trust Law Executive Council, Probate Litigation Committee, Probate Law & Procedure Committee and Guardianship & Advanced Directives Committee.

July 2018 | RES GESTAE

15


YLD spotlight BY JOEL HYATT, ESQ.

Do Good = Feel Good

T

Committee strives for upsurge of pro bono work

he reversal of a statewide trend of declining attorney pro bono work can start right here in Lee County. The 20th Judicial Circuit Pro Bono Committee, chaired by the Hon. Lee County Judge Archie Hayward, is actively working toward developing and promoting pro bono activities in Lee County, where a strong history of pro bono work exists, and throughout the Twentieth Judicial Circuit. Nonprofit organizations such as Lee County Legal Aid and Florida Rural Legal Services provide tremendous amounts of quality legal representation to low-income Florida residents. However, these organizations cannot meet the needs of Florida’s poor and indigent residents alone. There remains a great need statewide for individual attorneys who provide pro bono legal services to facilitate access to our justice system. Pursuant to Rule 4-6.1(d), Rules Regulating the Florida Bar, each member of the Florida Bar is required annually to report whether they have satisfied their professional responsibility to provide pro bono work for the poor. The aspirational goal is for each licensed attorney to annually provide 20 hours of pro bono legal service or contribute a minimum of $350 to a legal aid organization. Monetary contributions by attorneys to pro bono providers have increased in recent years across the state, but the number of pro bono hours provided has declined, despite an increase in the number of licensed Florida attorneys. The number of reported pro bono hours has steadily decreased

from 1,881,396 hours in 2013-2014, to 1,576,412 hours in 2016-2017, according to The Florida Bar Department of Public Information and Bar Services. Judge Hayward recently spoke to the Lee County Bar Association’s Young Lawyers Division on the importance of pro bono work. He stressed the importance of that work to our justice system and local community and shared heartwarming stories illustrating how pro bono work can make a lawyer feel good. The young lawyer attendees left the presentation motivated to meet the need. The Pro Bono Committee was created in September 2016, when Chief Judge of the Twentieth Judicial Circuit, the Hon. Michael T. McHugh, executed Administrative Order 2.37, establishing a Circuit Pro Bono Committee. The committee is comprised of representatives from the judiciary, pro bono and indigent legal service providers, members of voluntary bar associations, government organizations and private firms. Committee members were charged with assessing pro bono legal services within the circuit and developing and administering a circuit-wide pro bono attorney plan. Their plan has been set in motion. To help facilitate and encourage local attorneys to increase their pro bono hours, the committee is hosting multiple continuing legal education workshops focused on areas with great need for pro bono contributions, including landlord/tenant and guardianship law. The first CLE is scheduled for August. Additionally, the committee’s webpage is set to launch on the 20th Judicial Circuit’s website later this year. The goal of the committee webpage is to simplify the process of connecting people seeking pro bono services with attorneys eager to provide those services. The next committee meeting is July 20 at the Lee County Justice Center. If you want to get involved, please attend the meeting, and like and follow the committee’s Facebook page. ⚖

Judge Hayward addresses the YLD at their monthly luncheon.

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RES GESTAE  | July 2018

Joel W. Hyatt is an associate in Hahn Loeser & Parks LLP’s Fort Myers office. Joel concentrates his practice in the areas of commercial, construction, real estate and community association litigation.Prior to practicing law, Joel taught English at Immokalee High School. In addition to serving as President of the LCBA YLD, Joel serves on the 20th Judicial Circuit Pro Bono Committee.


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17


SPECIAL FEATURE BY CHUCK MYRON

A BID TO IMPROVE

MENTAL HEALTH

#KindLee collecting silent auction items for SalusCare fundraiser

L awyers know all too well the consequences of mental illness.

It’s easy to see how it can affect clients, many of whom are going through extremely stressful periods in their lives, but they’re far from the only sufferers in the legal profession. A third of all respondents to a 2015 Florida Bar membership survey said they suffered from a diagnosed mental disorder. So, the mission of SalusCare, a mental health and substance abuse service provider that reaches almost 16,000 people a year, speaks to a clear need within the legal community. Locally, that need is profound. Florida has fallen to 50th out of 50 states in per capita mental health spending, according to reports and think tank data cited by the Naples Daily News on June 4. SalusCare has seen its funding from the state cut by about $500,000 this past year compared to previous years, CEO Stacey Cook-Hawk said. “Even before that, our state funding remained relatively flat,” Cook-Hawk said. “As our patient population continues to grow, we don’t see the state funding responding in kind.” “This is a woefully underserved entity,” #KindLee committee member Stacy L. Sherman said. Sherman is spearheading an effort to collect silent auction items for SalusCare’s Laughter is the Best Medicine fundraiser, set for Aug. 18 at the Broadway Palm Dinner Theatre. The goal is to collect between 15 and 20 items, with 100 percent of the proceeds from the auction going to SalusCare. Part of the inspiration for Sherman was a guardianship case she worked on in her role as an appellate attorney. The woman at the center of the case was in need of mental

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health insurnance. “She sought and received the support and care she needed from SalusCare," Sherman said. "Through SalusCare’s resources, she ultimately had her rights restored and the guardianship was terminated.” Sherman decided she wanted to support the organization’s work in one way or another and expressed that sentiment to #KindLee Co-Chair Kelly L. Fayer, who came up with the idea of providing silent auction items. Fayer brought the proposal to SalusCare board member Marc Collins, who excitedly relayed the message to Cook-Hawk. “When I heard about this relationship, Marc called me and said, ‘You won’t believe it,” Cook-Hawk said. “I was absolutely thrilled and elated to hear the news.” She sees the partnership with #KindLee as a significant opportunity for SalusCare. Judges and attorneys can serve as catalysts for the cultural change needed to erase the negative perception surrounding those who seek mental health treatment, Cook-Hawk believes. “This is an incredible group of individuals who are prestigious, professional and are incredible speakers and I think have an amazing courage and ability to speak out about things that maybe others might not feel as comfortable with,” she said. #KindLee is collecting silent auction items at the LCBA headquarters on 2077 First St., Suite 207 in Fort Myers, and at the office of attorney Kelly L. Fayer on 12601 World Plaza Lane, Building 52, Suite 2, in south Fort Myers. Monetary donations for SalusCare are also being accepted at both locations. ⚖


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O

ne year into its efforts, The Florida Bar continues to work toward the 12 recommendations it was given in a 2017 report from a special committee chaired by immediate past president Michael Higer, who spoke at the June 29 LCBA Diversity Luncheon.

The desire for immediate change is strong, but practical realities make it elusive, Higer said. But Higer is “100 percent” certain the bar will ultimately fulfill all 12. So, while it may be frustrating, I personally think you just need to keep the faith and keep moving forward with it,” Higer said. “And that change in the conversation comes with keeping it first and foremost in front of mind.” Much of that responsibility falls on the bar’s Diversity and Inclusion Committee. The LCBA began a Diversity and Inclusion Committee of its own a year ago. Co-Chair Ita Neymotin and Judicial Liaison Hon. Devin George continue to lead the committee along with recently appointed Co-Chair R. Noelle Branning. Branning is already eager to start researching and discussing diversity and inclusion trends affecting workforces and the legal community for next year’s luncheon. The committee as a whole is dedicated to keeping gender equality as a frontR. Noelle Branning, Esq.

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of-mind issue, as Higer suggests. “It’s not a one-day, let alone a one-year initiative,” Higer said. With that in mind, Res Gestae spoke with Higer and examined The Florida Bar’s progress on each of the 12 recommendations. The interview took place June 11, four days before Higer was succeeded as bar president by Michelle Suskauer. Michael Higer

12 GENDER DIVERSITY RECOMMENDATIONS AND HIGER’S STATUS UPDATE ON EACH 1. The Florida Bar’s Diversity and Inclusion Committee will create a subcommittee on Women in the Profession that will be responsible for overseeing implementation efforts for all of the following recommendations.


The Special Committee on Gender Bias, which issued the report with the recommendations, was converted into the Subcommittee on Gender Equality, a new name that evokes a solution rather than a problem.

They took the recommendations and created a subcommittee that in turn created working groups. Each working group had the responsibility for one of the recommendations so that they were only focused on that particular recommendation. The point was to make sure that somebody was accountable and somebody was purely focused on each of the recommendations with responsibilities to be supervised going up the ladder, really all the way to Michelle Suskauer, to act as the overall person in charge.” 2. The Florida Bar and its Sections will seek to initiate continuing legal education courses that address gender bias topics such as implicit bias; the business case for gender inclusion; gender neutral hiring and evaluation criteria; conflict avoidance and resolution; and fixed vs. growth mindset. The Florida Bar will promote ethics credit allocation toward diversity training and civility, as well as gender bias and other discriminatory issues and practices. Such topics should also be addressed within the Wm. Reece Smith, Jr. Leadership Academy curriculum. The Diversity and Inclusion Committee held a seminar Nov. 10 in Orlando that carried CLE credits and covered topics including, gender bias in education and politics, breaking the glass ceiling, and implicit bias.

The Diversity and Inclusion committee has worked on programming throughout the year to make sure our continuing legal education program has a component or a standalone program focused on diversity and inclusion in a general way, and not just in gender equality.” 3. The Florida Bar will identify, assess and promote Gender Bias toolkits featuring, but not limited to identifying: implicit bias obstacles and institutional disrupters; micro aggressions and created bias

interrupters; best practices for maternity/paternity/ family leave; best practices for onboarding after parental leave; fair and transparent compensation and promotion practices; gender neutral hiring; the NFL Rooney Rule; and the importance of critical mass. In those instances where successful toolkits and other resources are already in place, the Bar will seek to utilize and promote those resources. The Bar will assemble links to those resources and make available in a consolidated space online. The plan was to roll out the toolkit and a page of The Florida Bar website dedicated to gender equality and women in the profession at the end of the bar’s fiscal year in June, according to subcommittee member Paul SanGiovanni, who spoke with The Florida Bar News for an article dated April 1.

The ABA and other organizations have invented that wheel, so I think it’s really a matter of just tweaking what’s going to work here in Florida.” 4. The Florida Bar will review its ethics rules and rules of professional responsibility to determine if additional rules or policies are necessary. This recommendation was reviewed by the Professional Ethics Committee of the Board of Governors, and the committee decided that no change to rule 4-8.4(d) of the Rules Regulating The Florida Bar was necessary.

Ultimately, we were convinced that the rules we have in place for misconduct are broad enough to cover any type of sexual harassment, and that the real issue we needed to focus on was some type of better reporting mechanism.” 5. The Florida Bar should seek to establish a reporting mechanism for individuals and small and large firms, with confidentiality protections for lawyers who are victims of gender biased misconduct, both for the reporting phase and during the process until and unless a decision for public discipline is made. The collection of data should be kept and compiled. The Bar should research July 2018 | RES GESTAE

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and affirm that existing gender bias training programs are in place for the judiciary.

compel firms to turn over the information necessary to set the baselines, Higer explained.

Suskauer, the new president, plans increased communication about how members can report improper behavior by attorneys. The Florida Bar rules are already tougher than American Bar Association regulations regarding discipline for improper behavior, but members need to report it and attorneys need to know these actions will have consequences, she said.

"So that, too, I think, will be one of those conversations going forward that the bar president and the leadership on this initiative will have to try to have with the leaders of these law firms. It’ll be about trying to convince them why they should voluntarily provide that information.”

Ultimately, we were convinced that the rules we have in place for misconduct are broad enough to cover any type of sexual harassment, and that the real issue we needed to focus on was some type of better reporting mechanism.” 6. The Florida Bar should create and promote a “Blue Ribbon Firm” designation to be awarded to law firms committed to gender diversity. The designation will set targets and best practices for legal employers interested in such a designation to meet, tailored to different firm sizes, and may provide for levels of success. The designation should be expanded beyond law firms to include categories for other legal employers. As with the toolkit in Recommendation 3, the Subcommittee on Gender Equality reported on the Blue Ribbon designation in May. Really, what I’m suggesting and recommending is that our new president, together with our communications team and the Diversity and Inclusion Committee, start getting around the state and start getting into the law offices, especially the bigger law offices, and start communicating that initiative.” 7. The Florida Bar will embark on an initiative designed to seek better information regarding compensation and promotion best practices, family leave, advancement and leadership statistics, and other data designed to establish baseline metrics that can be used for informational purposes and measured at intervals to determine progress. The bar regulates lawyers, not law firms, so it cannot

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8. The Florida Bar will continue to make a concerted effort to reach out to and recruit women for leadership positions within the Bar and encourage local and voluntary bar associations to do the same. Additionally, the Bar will more frequently spotlight successful women and organizations. Suskauer, just the sixth female president in Florida Bar history, is the most prominent embodiment of progress in this regard, but Higer cited statistics that show other areas of representation. Roughly half of all appointees to standing committees, and roughly half of all leaders of those committees, are women, Higer said. Florida Bar membership is about 38 percent female, roughly in line with the share of Florida judges — 39.1 percent — who are women.

The bar attempts, and bar leadership attempts, to be a leader beyond just the bar. … But being a leader on these issues means also to be a leader internally.” 9. The Florida Bar will study law school activities designed to address gender bias, other state bar association programs and other industry initiatives to identify successful programs that can be implemented by the Bar. Rather than follow examples set by other states and institutions, The Florida Bar has set the pace, Higer said.

I can’t identify a particular initiative that we have adopted because of some other state or the ABA in general. The Florida Bar has really been the leader in these discussions.” 10. The Florida Bar will promote the benefits of family and paternity leave, in addition to maternity leave, through continuing legal education, promotion of data and best practices, and articles in its publications. The bar intends to create incentive for firms to provide family and paternity leave through the “Blue Ribbon Firm” specifications it’s preparing in response to Recommendation 6, Higer said.


Another way that a firm can demonstrate its bona fides, if you will, will be based on its emphasis, its encouragement and its implementation of family leave policies.” 11. The Florida Bar should coordinate with leaders of small and large law firms, as well as thought leaders in relevant fields, to continue the conversation and study of eliminating gender bias, with a particular focus on issues impacted or influenced by law firm economics. Suskauer said during a strategic planning session with

Higer in late May that diversity and inclusiveness will be among her top four or five priorities for the year ahead, according to Higer.

I expect that throughout the year, she will continue to push hard on that. Wherever she speaks, she’ll be speaking about that. How she pushes on the Blue Ribbon initiative will certainly speak to that.” 12. The Florida Bar will research and identify member benefits (such as emergency child care resources) designed to support family responsibilities. This could be Suskauer's first order of business. The matter is under study, but not done. It remains in the hands of a subcommittee focusing on recommendation 12, according to Francine Walker, director of public information and bar services for The Florida Bar. ⚖

Special thanks to Ryan G. Pomponio of the Second District of Florida’s Office of Criminal Conflict and Civil Regional Counsel, who assisted in the research for this article.

Response from LCBA Diversity and Inclusion Committee leaders "After reading what the Florida Bar is doing with regard to implementing their 12-point plan, I’m impressed. It would be more concerning if in a year’s time they had resolved every issue that was addressed. That would Honorable Devin George be unrealistic and a “Band-Aid” fix. I think the main takeaway is they are still having the important conversations that need to be addressed with regard to gender equality issues. Last year, the LCBA Diversity and Inclusion Committee followed the Florida Bar’s focus on gender equality. I thought it was a great success. I personally had many follow-up conversations with friends and colleagues about issues brought up during the lunch. This year, the LCBA Diversity and Inclusion Committee focused on race and ethnicity issues. I was excited to open that line of dialogue this year. I believe the purpose of diversity committees is not to “fix” the problems but to open the lines of discussion so many people can at least recognize the problems and proceed with perhaps a new or differing point of view. The more we are free to talk about such issues, the less likely we are to make assumptions about one another. I hope all who joined in the discussion at the lunch on June 29 left with at least one new perspective on the topic."

"I believe Michael Higer and The Florida Bar are doing a great job on the mission of gender equality. As the first woman appointed to be Regional Counsel in Florida, I believe diversity is crucial, in that it gives equal opportunities to all Ita Neymotin, Esq. people regardless of sex, gender or religion. The Regional Counsel’s office held a Diversity Seminar with CLE credits on July 2. The speakers were Adriannette Williams of the Henry Latimer Center for Professionalism of The Florida Bar, LCBA Past President Kelly Fayer, Christina Schwinn of Pavese Law Firm, Ed Larsen of Larsen Trial Law, John Agnew of Henderson, Franklin, Starnes & Holt, and myself. Having come from the former Soviet Union, I know firsthand the importance of diversity. There was no freedom to practice religion, and many people were imprisoned or even executed for practicing their religion. The communist regime of the Soviet Union did not believe in diversity, as their goal was to make everyone the same. Millions of people suffered as a result. Almost all families in the former Soviet Union were somehow affected by this, my own family included. One thing that makes America so distinct is that it is a melting pot of different people and cultures, which helps to encourage diversity, versus other countries where diversity is condemned." July 2018 | RES GESTAE

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Post-tournament giving lifts LCBA Foundation

Auctions raise money to fund charitable giving It's a lot of money for a lot of good. The results are in, and the LCBA Foundation Charity Golf Tournament raised $22,000 to go toward the foundation's grants this year. The May 19 event attracted 91 participants, many of whom bid on live and silent auction items after playing 18 holes at Plantation Golf & Country Club. The amount is a significant step toward the foundation's goal of topping the $33,847 it gave to more than a dozen charitable organizations in its debut year of 2017. Shannon Puopolo and Kenneth A. Jones chaired the golf committee this year. Other committee members were John Webb, David Seitz, Lisa Sbuttoni, Tiffany Pereira, Michael-Anthony Pica, Spencer Cordell and Amanda Bartley. âš– Several people bid to benefit the LCBA Foundation during live and silent auctions after the LCBA Foundation Charity Golf Tournament. From left, the Hon. James Adams, Mike Quintero, auctioneer Spencer Cordell, former FGCU golf standout Gyles Robin, LCBA Foundation Treasurer Shannon Puopolo and Jay Brett.

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the dish BY CHELLE KOSTER WALTON

Dinner and a show at Sundial's Shima Chef Sammy Chaianant performs. Photo credit: Sundial Beach Resort & Spa

C

hef Sammy stacked thick rings of onions atop the teppanyaki to form a cone. Poof! Two seconds later, it became a volcano belching fire and drama. The show had begun at Shima Steakhouse & Sushi Bar, at the Sundial Beach Resort & Spa.In 2017, Chef Sammy Chaianant won Best Chef in the Best of Sanibel & Captiva Islands poll. It’s not hard to see why. He was as much showman as chef as he entertained our group of six gathered around the teppanyaki, aka hibachi, table at Shima. Shima’s mission to feed is twofold. Besides its steakhouse teppanyaki specialty, it serves superior sushi that in May 2017 spun out a new Shima Grab N Go takeout nook. Don’t be thinking grocery store-style pre-made and pre-packaged

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sushi. Grab N Go takeout is made fresh to order. You can do so online or call and talk personally to the sushi chef. “That’s very rare,” said Sundial executive chef Aaron Chavarria, who serves as one of the resort’s three sushi chefs. The seafood comes from Florida fishermen whenever possible, but always from domestic purveyors. “That’s the biggest change I brought to the resort,” said Chavarria, who started at the Sundial last summer. “Sustainable, local and domestic product.” A student of agricultural engineering, the Nicaraguan-born, European-trained chef was at the forefront of the farm-


the dish

to-table movement, putting to use his knowledge of the science behind produce. “It’s important for me to know my vegetables,” he said. Steak for the teppanyaki grill is prime black angus USDA meat. Shrimp comes from the Gulf of Mexico. Tuna is 100 percent sushi grade. For a taste of land and sea, I went with the Chef’s Choice option, a combination of beef filet and shrimp prepared on the grill. Ranging from a $14 vegetable plate to the $42 Lobster Delight (two Maine lobster tails), the teppanyaki menu gives diners a wide variety of meat, seafood and combo selections. All entrees come with a simple broth and onion soup, a house salad, two grilled shrimp, vegetables and steamed or fried rice. In traditional Japanese steakhouse style, the chef grills your dinner in front of you with dramatic knife throwing and food flipping. Chef Sammy at one point flipped a whole in-shell egg into the top of his toque with a spatula. That kind of thing. It’s a great way to entertain and impress clients you don’t necessarily need to talk business with over dinner. The dining room holds four teppanyaki grill tables with six chairs each in an intimate setting of gleaming stainless steel, granite counters, mood lighting, yellow-gold tones and Japanese simplicity. Back in the 1980s, Noopie’s Japanese Seafood & Steakhouse occupied this space as one of the first teppanyaki restaurants in the county. Today, Shima breaks ground on Sanibel Island as the only full-time sushi bar. The sashimi and handmade rolls run the gamut from classic to creative. A la carte pieces of sushi and sashimi range $4-$6; classic rolls such as California and spicy tuna cost $7-$10 apiece. The Sanibel roll (tuna, cucumber, avocado and masago), Dragonfly (faux crab, cucumber, avocado and asparagus topped with spicy tuna, tempura flakes, spicy mayo, eel sauce, masago, black tobiko and scallions), and other specialty rolls are more expensive, from $11-$17. The sushi chefs are happy to customize their offerings according to guests’ whims and diets. Chef Sammy Chaianant at the teppanyaki. Photo credit: PhotoChelle credit: Koster Sundial Walton Beach Resort & Spa

They busily slice, roll and invent in their small glassed-in cubby off the lobby, where they like to keep it dark and cold to get the best out of their ingredients. The chefs are always looking for ways to be creative, sushi chef Sai Chaleunsouk said. He designs sampler Shima prepares custom platters according to “boat-loads” of sushi and rolls. customer preferences Photo credit: Chelle Koster Walton for rolls and sashimi. Plus, Grab N Go also sells seaweed salad, ceviche, cucumber salad and spicy tuna salad. Teppanyaki-side, servers deliver cocktails, wine and beer from the full liquor bar across the lobby at Sea Breeze Café. Plan on a quieter pre-dinner cocktail there, overlooking the resort’s main swimming pool, the beach and the gulf. If that doesn’t set the tone for an evening to wow guests, nothing will. ⚖

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SundialResort.com Through summer, Shima Steakhouse & Sushi Bar opens Tuesday through Saturday 5-10 p.m. Make reservations at 239-989-1160. Grab N Go opens Tuesday through Saturday noon-10 p.m. Call 239.395.6005 or go online to pre-order.

Chelle Koster Walton has been dining her way around Southwest Florida for more than 30 years. She writes about food for USA Today 10Best.com and Florida Weekly and was formerly a food editor and restaurant reviewer for Naples Illustrated and Naples News. She lives on Sanibel Island.

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LCBA Judges Spotlight BY HON. TARA PASCOTTO PALUCK

1. Although all the men in my house love to fish, I still hold the household record. I tagged and released a 350-pound blue marlin off the coast of the British Virgin Islands. Talk about a sore arm! 2. Originally, I ran in an open judicial seat in 2006. One of the more memorable moments on the campaign trail was at a meet and greet when a guest asked me about the “Country Judge” position. My name badge and logo said, “Tara Paluck for Country Judge,” not “County Judge.” How embarrassing! 3. I went to law school in Nebraska, and I drove a teal blue (#gottalovethe80s) Dodge Stealth (#stillmyfavoritecar). My Midwestern friends called my Florida vehicle a “sleigh.” That should give you an idea of how I drove in the snow. After that, I was Flo-bound once again! 4. At Notre Dame, I played on an intramural girls championship flag football team. I played offensive line, and we won our title in Notre Dame Stadium battling in the snow. Yes, I can’t even count the number of times that I have seen “Rudy.” It still makes me cry! 5. If I seem a little edgy this summer, please forgive me. ... I am teaching my older son to drive.

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LCBA Members spotlight BY MARY BETH FLETCHER, ESQ.

1. I am a native Floridian. I come from a long line of Floridians on both sides of my family. One grandfather worked with Walt Disney to establish the roadways needed for his “Orlando project,” and the other was a 19th Circuit judge back when he would have to go to all the counties, regularly “riding the circuit.” 2. My house is nearly 100 years old. Our McGregor-area cottage is a Sears and Roebuck catalog “kit home” and was purchased for $965 in 1925. 3. I can say the alphabet backward. As an Orlando first grader, my teacher insisted that our class learn this. Aside from entertaining DUI law enforcement officers, this has not yet proven to be a terribly useful skill, but ask me to do it! 4. My husband is from England. We often travel there to visit his twin daughters and their families, including seven perfect grandchildren. If you ask about them, I will show you photos of them for hours! 5. I am an artist. I actually attended art school. Inspired by copyright issues related to Keith Haring’s artwork, I realized that a career in the law was more fulfilling than staying in the art world.

TOGETHE R , W E ’ L L F I N D A SOLUTI ON

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RES GESTAE  | July 2018

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In The news

Matthew Irwin, owner of Men’s Rights Law Firm, has become board certified in marital and family law. Only 7 percent of eligible Florida Bar members – approximately 4,800 lawyers – have earned board certification in one or more of the 26 specialty areas. Irwin and his firm practice exclusively in the areas of divorce, parenting plans, family support matters, domestic violence, adoption, guardianship, dependency and appeals.

Attorney Jennifer Siegal-Miller of Henderson, Franklin, Starnes & Holt, P.A. has joined the Board of Directors for two Southwest Florida nonprofits focused on helping children: Books for Collier Kids and the Guardian ad Litem Foundation for the 20th Judicial Circuit. Books for Collier Kids provides new books for every child in kindergarten through the second grade in Collier County Title I schools and the Head Start Program. Guardian ad Litem provides advocacy for abused, neglected and abandoned children in Lee, Collier, Charlotte, Hendry and Glades counties. Laird A. Lile of Laird A. Lile, PLLC, a board-certified wills, trusts and estates attorney in Naples, recently presented to members of the Connecticut Bar Association’s Estates and Probate Section on Florida homestead and domicile issues for Connecticut residents who spend part of the year in Florida. Lile’s presentation also reviewed Florida requirements for execution of documents, appointment of fiduciaries and designated representatives, and decanting. His firm offers legal counsel on numerous estate- and trust-related matters. Attorney Brandon Byers has joined Pavese Law Firm and will be practicing land use law. Byers practiced indigent criminal defense with the 19th Judicial Circuit in St. Lucie County and the Marion County Public Defender Agency in Indianapolis, Indiana. Prior to practicing law, Byers worked as a city planner for the City of Winter Garden in Florida. Byers obtained his Bachelor of Arts in psychology from Youngstown State University and his Master of Arts in urban and regional planning from the University of Florida. He graduated cum laude from the University of Cincinnati College of Law. Carlos Kelly, an attorney for Henderson, Franklin, Starnes & Holt, P.A., has been appointed to another term on The Florida Bar’s Eminent Domain Committee. He advises his real estate clients in the areas of eminent domain, inverse condemnation, Bert J. Harris Jr. Private Property Rights Protection Act claims, purchase and sale disputes, real estate broker/agent defense, landlord/ tenant claims, and foreclosures. Kelly is a member of the Association of Eminent Domain Professionals and serves on boards of directors for the Uncommon Friends Foundation and the IMAG History & Science Center. Pavese Law Firm partners Christopher Shields, Steven Hartsell, Charles Mann and Charles Capps earned Florida Bar Board Certification in condominium and planned development law. Shields, Mann and Capps are also Florida Bar Board Certified real estate attorneys, making them three of only 21 attorneys in Florida to hold the dual distinction. Shields specializes in subdivision, master-planned residential, commercial and mixed-use communities. Hartsell practices zoning, land use and development law. Mann’s focus is land use and development, real estate and association law. Capps covers areas including commercial and residential transactions.

38

RES GESTAE  | July 2018


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