Res Gestae - January 2020

2020 VISION Matt Roepstorff's presidential agenda

Caffé Toscano dishes out unforgettable meals THE OFFICIAL AWARD-WINNING PUBLICATION OF THE LEE COUNTY BAR ASSOCIATION • JANUARY 2020

contents features

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Roepstorff Packs 2020 Agenda with Significant Issues

ad directory

28 Unintended

Consequences for Florida's New Lobbying Law

by Tom Hayden

by Tom Hayden

34 Retirement Plans Can be Used to Collect Child Support

by Timothy C. Voit

On the cover: Matt Roepstorff Photo courtesy of Jim Jett Photography

departments 6

President's Letter

by Matt Roepstorff, Esq.

8

Executive Director's Letter

by Lauren Baugh

10 Calendar of Events 12 Ethically Speaking

by Henry Lee Paul, Esq.

14 Practice Section

18 36 5 Things You Don't

Know About Me

by Hon. Leigh Frizzell Hayes

38 5 Things You Don't

Know About Me

by Deana Sisk, Esq.

40 Legal Lens

lcba soho social

42 In The News

continuing legal education

by T. Rankin Terry, Esq.

16 YLD Spotlight

by Tiffany Pereira, Esq.

18 Legal Lens

lcba holiday party

26 100 Club

Our advertisers support the LCBA.

30 The Dish

caffĂŠ toscano

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by Michael F. Hornung, Esq.

Leebar.org

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president's letter Happy New Year and welcome back! It’s my extreme honor and privilege to serve as president for the Lee County Bar Association for 2020. To represent and lead this group of highly acclaimed and nationallyrecognized judges, attorneys, advocates and support staff is a professional honor and a responsibility that I humbly and gratefully accept.

LEE COUNTY BAR ASSOCIATION administration Executive Director - Lauren Baugh

executive council

committee chairs

practice section chairs

BENCH-BAR GALA

Danielle Butler, Esq.

ALTERNATIVE DISPUTE RESOLUTION

DIVERSITY AND INCLUSION

Anne Dalton, Esq. and Bill Merchant, Esq.

Ita Neymotin, Esq. and Kelly L. Fayer, Esq. HEALTH AND WELLNESS

John Miller, Esq. and Joel Hyatt, Esq. HISTORY

Jenna Persons, Esq. and E. Bruce Strayhorn, Esq. #KINDLEE

Amanda Bartley, Esq. and Kelly L. Fayer, Esq. LAW RELATED EDUCATION

T. Rankin Terry, Esq. LAW WEEK

Hon. John S. Carlin LCBA FOUNDATION CHARITY GOLF TOURNAMENT

APPELLATE LAW

Alex Brockeyer, Esq. and Matthew Irwin, Esq. CRIMINAL LAW

Leah Harwood, Esq. and Kathleen Fitzgeorge, Esq. ELDER LAW

Blake Hampton, Esq. and Amy McGarry, Esq. FAMILY LAW

Christina Holly, Esq. and Malany Marquez-Kelly, Esq. GENERAL CIVIL AND BUSINESS LITIGATION

George Knott, Esq. and Carlos Kelly, Esq. LAND USE AND GOVERNMENTAL LAW

Shannon Puopolo, Esq. and Kenneth A. Jones, Esq.

Erica Woods, Esq. and Sarah Spector, Esq.

MOCK TRIAL

REAL PROPERTY, PROBATE & TRUST LAW

Shaina Zuppke, Esq. and Eunice Gedeon, Esq. PRO BONO

Andrew Banyai, Esq., Blair DeMinico, Esq. and Shanthy Balachanthiran, Esq.

Kenneth Kemp, Esq., Jennifer Hammond, Esq. and Peter Knize, J.D., L.L.M. SOLO & SMALL FIRM

Conor Foley, Esq. TORT LITIGATION

Dawn Maselli, Esq.

Matt Roepstorff, Esq. matt.roepstorff@gray-robinson.com | 239.340.7936 RES GESTAE

TREASURER

Tiffany Pereira, Esq.

BOARD MEMBERS

I am excited to announce a full slate of upcoming and highly impactful presentations, panels and luncheons focused on topics which will be central to our profession and our daily lives. Beginning in February 2020, we will provide a forum for open and thorough discussion and education on topics including the new hemp industry in Florida, gun control legislation and its 2nd Amendment implications, Florida’s constitutional amendment process and the legal challenge to voting rights restoration for felons, as well as the potential impacts of recreational marijuana.

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VICE PRESIDENT

Blake Hampton, Esq.

Spencer Cordell, Esq. Peter Knize, Esq. Michael-Anthony Pica, Esq.

Attorneys play an integral role in drafting, shaping and implementing the laws and regulations under which we all live. We use our skill sets and training to advocate for those laws, regulations and policies that we believe are in the best interest of society. It is incumbent upon us to examine and openly discuss those policies which will greatly impact not only our clients, but our families, friends and neighbors.

I truly look forward to what promises to be an exceptional year for the LCBA.

SECRETARY

Kathy Smith, Esq.

YLD President - Tiffany Pereira, Esq. President Emeritus - John Webb, Esq.

While we advise our clients that we can never guarantee outcomes, you’re going to like what the bar has to offer this year – guaranteed.

The LCBA is no place for advancing political agendas, but to ignore these impactful issues and to retreat from potentially controversial discussions would be a missed opportunity. It is my hope all interested parties can join us for these events. I want to highlight and emphasize opening our informational and educational presentations to not only LCBA members, but other community leaders, guests, professionals, students and members of the public.

PRESIDENT

Matt Roepstorff, Esq.

Leebar.org

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executive director's letter As we gear up for an exciting 2020, my goal for the Lee County Bar Association is to do less quantity and more quality events. Obviously, I will work hand-in-hand with our new president, Matt Roepstorff, and will depend heavily on his vision and his insight.

The official award-winning publication of the Lee County Bar Association, which serves citizens and the legal community since 1949.

239.334.0047 resgestae@leebar.org

staff PUBLISHER

Connie Ramos-Williams | 239.690.9840 Ext. 1001

EDITOR-IN-LAW

We want to come up with new membership benefits, enticing attorneys who are not members. I will be going into the legal community and reaching out to those who have never been members or have never been involved.

Tiffany Pereira, Esq.

MANAGING EDITOR

Tom Hayden | 239.690.9840 Ext. 1007

CREATIVE DIRECTOR April Bordeaux

ADVERTISING DIRECTOR

We will be in the process of having members vote on updating the LCBA bylaws so that we might be able to extend our membership to other groups, like paralegals, accountants and judicial and administration assistants who are very much involved in the legal community but feel left out. They understand what attorneys and judges go through and I know they would find membership beneficial.

Linda Fiore | 239.690.9840 Ext. 1006

FEATURE WRITER Tom Hayden

CONTRIBUTING WRITERS Matt Roepstorff, Esq. Lauren Baugh Henry Lee Paul, Esq. Tiffany Pereira, Esq. T. Rankin Terry, Esq. Michael Hornung, Esq. Timothy C. Voit Hon. Leigh Frizzell Hayes Deana Sisk, Esq.

Throughout the year, I would virtually like to touch every one of our members at one point every week through our newsletter and every month through our magazine. To our members and future members, I will always have an opendoor policy and would be honored to come to your office and speak with you as well.

Community service remains near and dear to my heart, not only personally but also the LCBA’s community commitment. I will be going to the Lee County Jail next week with Kathleen Smith, Public Defender for the 20th Judicial Circuit. We are going to be working with inmates who have served their time and are getting ready to reenter society. We will be providing them with shoes and socks once they get out through the non-profit I started, Shoes, Socks, Shirts and Smiles.

I am also reaching out to other contacts in the community to see if there is other things that we can do like possibly providing employment opportunities. We will be looking at year-round projects that the lawyer referral and pro bono committees may be able to assist attorneys like Kathleen Smith and help her clients find employment or assist them with other needs.

CONTRIBUTING PHOTOGRAPHER Jim Jett Photography

BILLING INQUIRIES 239.334.0047

Res Gestae is an award-winning magazine published monthly by CONRIC PR & Marketing 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 PR & Marketing.

Copyright©2020 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 from the Lee County Bar Association. To inquire about such permission, please contact the Lee County Bar Association at info@LeeBar.org.

Here’s to a wonderful 2020.

Lauren Baugh, Executive Director lbaugh@LeeBar.org | 239.334.0047 Ext. 102

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6216 Whiskey Creek Drive, Suite B | Fort Myers, FL 33919 239.690.9840 | ConricPR.com | info@ConricPR.com Leebar.org

calendar of events Dates of some practice section meetings have not been confirmed. Check leebar.org for details!

JANUARY

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New Years Day LCBA and courts closed

LCBA RPPTL Section Lunch Meeting Noon–1 p.m. Lee County Justice Center, 1700 Monroe St., Courtroom 5G, Fort Myers. Speaker: Richard Mancini. Topic: Case law update. Please register at LeeBar.org

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Martin Luther King Jr. Day LCBA and courts closed

LCBA Pro Bono Committee lunch meeting Noon–1 p.m. Lee County Justice Center, 1700 Monroe St., Courtroom 5E, Fort Myers. Speaker: TBD. Topic: TBD. Please register at LeeBar.org

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LCBA annual swearing-in luncheon Noon–1 p.m. Sidney & Berne Davis Art Center, 2301 First Street, Fort Myers. Please register at LeeBar.org

Visit us online at LeeBar.org to see more calendar items and RSVP for upcoming events.

Would you like to submit an event? Email your event submission to ResGestae@LeeBar.org.

Thank You to our 2020 Annual Sponsors

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Leebar.org

ethically speaking

WHAT TO REMEMBER WHEN LAWYERS LEAVE FIRMS by henry lee paul, esq.

I

t has been my experience that, despite the efforts of The Florida Bar to provide guidance to lawyers on how to conduct themselves when a lawyer changes firms, this guidance is often disregarded.

The opinion advises the interests of the client should be given first priority.

Both law firms and departing lawyers have an obligation to cooperate in providing competent and professional representation to a client.

As a practitioner who often deals with lawyer clients in civil disputes or disciplinary matters involving firm divorces, it never ceases to disappoint when otherwise rational and professional lawyers lose perspective in the midst of firm transition.

For example, the opinion recommends, when a client chooses to follow the departing lawyer, that if the lawyer gives notice of departure to the firm and remains at the firm during a transition period, the firm should not impose certain restrictions on the departing lawyer. The opinion states that in such circumstances the departing lawyer “cannot be required to work from home or remotely, be deprived of appropriate and necessary assistance from support staff or other lawyers necessary to represent the clients competently, including access to research and drafting tools that the firm generally makes available to lawyers.

Often at stake are the financial rewards that accompany the representation of a particular client or group of clients. A term that is commonly bandied about in these situations is when one lawyer accuses another lawyer of “stealing” clients. Recently released ABA Formal Opinion 489 (Obligations Related to Notice When Lawyers Change Firms) addresses such a sentiment. The opinion clearly and succinctly states “Clients are not property.”

Florida lawyers should welcome the guidance provided in this opinion. It addresses many types of conduct not specifically discussed in Florida Rule 4-5.8 (Procedures for Lawyers Leaving Law Firms). The opinion advises that “Law firms and lawyers may not divide up clients when a law firm dissolves or a lawyer transitions to another firm ... clients will decide who represents them going forward when a lawyer transitions to another firm.”

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“Similarly, firms cannot prohibit or restrict access to email, voicemail, files and electronic court filing systems where such systems are necessary for the departing attorney to represent clients competently and diligently.

Once the lawyer has left the firm, the firm should set automatic email responses and voicemail messages for the departed lawyer’s email and telephones, provide notice of the lawyer’s departure and offer an alternative contact at the firm for inquiries.” The law firm should also Leebar.org

make a list of clients available to the departing lawyer for the purpose of allowing the identification of conflicts.

Conversely, a departing lawyer should cooperate with the law firm when a client remains with the firm. This includes cooperation in removing a firm or client confidential information from personal devices and cooperation in firm billing post departure. The departing lawyer should also assist in maintaining orderly and updated files. Fees generally belong to the firm for services provided on behalf of the firm. The right to fees involving a client who elects to continue as a client of a departing lawyer can be much more problematic in contingent cases.

Florida lawyers involved in firm transition should review Rule 4-5.8 and related authorities. In addition, lawyers will greatly benefit from the guidance provided in the ABA opinion.

Hopefully, it will reinforce the duty to act professionally and reasonably in what is often a challenging and emotional situation.

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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continuing legal education

WE WANT TO KNOW WHAT CLE PROGRAMS WORK BEST FOR YOU by t. rankin terry, esq.

W

e are approaching The Florida Bar’s spring CLE Program Season and must make some CLE lending library decisions. We need your input.

Our CLE library mostly consists of The Florida Bar produced CD’s and its program materials. No downloadable podcasts, recordings of short, computer or telephone seminars, etc. are available. In the past, we have explored buying the latter items, but have not been able to at this point.

Neither The Florida Bar nor any of the private CLE providers allow us to copy their podcasts (or any other “broadcast”) for “free replay” (even though we pay for the original play or download of the program) to our members.

Because one can pick and choose one-hour (some are longer) topics of interest from the annual Certification Exam/Legal Update programs, we mainly purchase those programs’ CD’s.

Whatever topics you pick, you get the complete Program Materials.

The Family Law & Criminal Law Sections, produce their own Certification Exam/Annual Update programs. Family Law does not record its programs and the Criminal Law Section does not sell recordings.

However, the Family Law & Criminal Law Sections annually produces

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through The Florida Bar one-day case law update programs. We are allowed to purchase the CD’s.

Typically, The Florida Bar, through the sections, produce two, one-day (one can be half day) Ethics programs annually. We can purchase these CD’s.

In addition, The Florida Bar produces the Florida Law Annual Law Update (we get one free and can buy another one for $75).

Each Florida Bar program is required to be accompanied by a set of various materials. I am trying to make “Program Materials” the uniform reference. I am also pushing to make these materials the most important element of the programs.

PowerPoint makes it possible for viewing materials from the back of a room, but remains no substitute for a solid set of materials that you can take back to your office and refer to days, weeks or months later.

CLE credits expire 18 months after the program’s last presentation. CLE programs and their materials are not meant to be “advance sheet substitutes.” They are expected to be current through 8 to10 weeks prior to the program materials’ press deadline. Depending on our board’s decisions, we will probably choose a group of course CD’s to buy annually, not paying much attention to the Leebar.org

six month credit time “tail.” That way members can depend on having CD’s & Program Materials available within a couple of weeks of a program’s last presentation.

New stuff creates extra, “out of cycle” programs. Some changes come around regularly. Others fall out of the sky. A regular item is the recent corporation code revision. An out of the sky item is the Florida Supreme Court’s sua sponte revision to the “Expert Evidence Law” (so called adoption of Daubert). The Business Law Section has produced a program on the Corporate Code revision. Given the way things work. I don’t expect a topic specific program on Daubert but a treatment in various parts of the Civil Trial Exam & Update Program scheduled for Jan. 30-31 in Tampa.

Hopefully, before Jan. 1, our “News That You Can Use” will publish a list of valid CLE-credit CDs and program materials that we have and what is available for purchase. Each of you will be asked to quickly review the list and make suggestions.

T. Rankin Terry is chair of the Law Related Education committee for the Lee County Bar Association.

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YLD spotlight

by tiffany pereira, esq.

G

reetings! With the holiday season coming to an end, the Young Lawyers Division is gearing up for an exciting new year.

We have our 2020 board in place and are looking forward to the swearing-in luncheon on Jan. 24. We hope you will join us.

service every Tuesday in the courthouse self-help center from 1–4:30 p.m. and they are always looking for attorney volunteers to come and give advice.

Congratulations to outgoing president Nicole Brunswick on a wonderful year. We are grateful for all of your contributions to the community and our young lawyers.

There is a need for legal assistance in our community and attorneys to perform actual hours, not just write off their pro bono requirement.

Throughout this challenge, we will log the hours provided by each attorney and they will be eligible for prizes.

For example, you will move up in the “ranks” with each hour provided, earning things throughout the year such as shirts, portfolios and other customized gifts, with the highest earners receiving a plaque for being a challenge winner. We are still looking at ways to incentivize participation, so please feel free to let me know if you have any ideas.

I am headed to St. Pete Beach on Jan. 10-11 to kick off our year at the Florida Bar YLD Affiliate Outreach Conference, where I am excited to pitch our service project idea for the year – the 2020 LCBA YLD Pro Bono Challenge. The challenge will consist of a variety of pro bono opportunities for lawyers (young and vintage) throughout the year.

The events will likely be similar to Law Week’s Law in the Mall, where attorneys volunteer their time to provide legal advice to members of the community.

Lee County Legal Aid offers a similar

The pro bono challenge is not the only change coming to YLD this year. We are eliminating the standard first Friday monthly luncheons in favor of more events such as socials and free CLE’s. We will continue our tradition of Holidays

I am honored to continue my service on the YLD board as president for the 2020 calendar year. Please join me in welcoming the rest of the board: vicepresident Shirlarian “Shea” Williams, treasurer Dawn Maselli, secretary Katherine (Kati) Cook and social media/membership chair Katherine Camadeco.

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In addition, we provide food and drinks at each of these volunteer opportunities. We will also have different drives, including supplies for our legal aid organizations and for professional clothing to be distributed to pro se litigants so they may present themselves better in the courtroom.

Leebar.org

in July, moving it to the Fort Myers Skatium.

We hope to have more joint events with other voluntary bar associations.

We will be resuming beer sales at Art Walk and Music Walk, and we are seeking sponsors for luncheons. If you or a business you know are interested in sponsoring a lunch and learn event, we would love to have you. We hope to host Bikes and Brunch at Ding Darling again. We will round out the year with a Taco Fiesta holiday party. If that’s not enough to get you excited about our year, we are looking forward to social events such as a distillery tour at Wicked Dolphin in Cape Coral, drag queen bingo, karaoke and trivia.

Please be on the lookout for a tentative calendar of our events for the year. If you do not receive our emails, please email me at tiffany@thepereiralawfirm. com to be added to our contact list.

We hope you will be a part of this busy year.

Tiffany L. Pereira is a solo practitioner who concentrates her practice on transactional business and agricultural law. In addition to serving as the YLD President, Tiffany is a member of the LCBA Executive Council and is the statewide representative for the Lee County Association for Women Lawyers.

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legal lens Members enjoyed an evening of holiday cheer at the lcba holiday party held on December 19th at Edison Restaurant, Bar & Banquet Center. The festivities were sponsored by Kelleher Firm and CopyLady.

For more pics, check out the gallery at LeeBar.org

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Leebar.org

Photo courtesy of Jim Jett Photography

Photos courtesy of Jim Jett Photography

1. John Webb, Matt Roepstorff 2. Shannon Puopolo, Tiffany Pereira 3. Mag. Kimberly Davis Bocelli, Andrew Banyai, Peter Knize 4. Ted Fitzgeorge, Kathleen Fitzgeorge 5. Jim Kelleher, Cynthia Duff 6. Mag. Gilberto Perez, Mag. Kimberly Davis Bocelli, Hon. Carolyn Swift 7. Joe Bernardo, Hon. Andrew Swett 8. Steve Russell, Linda Doggett, MIchael Corso 9. Danielle Liguori O’Halloran, Ryan O’Halloran, John Mills, Kimberly Ann Chaps

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1. Michael-Anthony Pica, Rad Sturgis 2. Richard Marchewka, Scott Atwood 3. Justin Hales, Laci Pletcher, Matt Roepstorff 4. Andrew Banyai, Spencer Cordell 5. Oliver Schulz, Hon. Kathy Sturgis 6. Stephanie Bendeck, Jennifer Gutmore, Vera Bergermann 7. Oliver Schulz, John Webb, Jim Webb 8. Blake Hampton, Danielle Levy Seitz 9. Hon. Mary Evans, Cory Marcinkowski 10. Shanthy Balachanthiran, Susan Larned

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by tom hayden

M

ajor topics of conversation and concern that will shape 2020 and beyond are at the top of Matt Roepstorff’s agenda and vision as he takes the reins as the new president of the Lee County Bar Association.

The hemp industry, felon voting rights, gun control, immigration and laws that govern lobbying efforts are among the topics Roepstorff will target during monthly LCBA luncheons, open to those in the legal professional and community stakeholders.

What drives his agenda is a desire to better communicate key issues that impact Bar members daily.

“The impetus for me, when I think of the Bar association is, No. 1, facilitate the advancement of the profession,” said Roepstorff, who will be sworn in as the LCBA’s 70th president on Jan. 24. “We advocate for our members for best policies and best practices.

“When you look at doing that, you look at policies that we deal with every day as attorneys and the questions we get from clients and potential clients. Any attorney will tell you they get questions like, ‘hey, what is going on with this (issue)?’ We need to be providing a forum to talk about those issues.”

And he wants these issues to be discussed and debated, not just among those inside the legal profession but also those outside the law offices and

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court rooms. That’s why he wants to open the monthly luncheons to the public, so they can hear important information from industry experts.

“Because we are coming up on an election year with so many hot button issues, we would be remiss not to discuss these,” said Roepstorff, of counsel with GrayRobinson, P.A. “I am certainly not trying to push an agenda, but there are a lot of issues that will significantly affect community. How can we not talk about it?”

Added LCBA executive director Lauren Baugh: “I am excited about Matt’s vision to focus on issues impacting the legal profession. I like the fact that it is something that promotes conversation among bar members on what we do.”

Some of the key issues for Roepstorff and topics of the 2020 LCBA luncheons:

Hemp and its impact “Hemp: The legal and economic ramifications” will be the topic of a panel discussion during the Feb. 21 LCBA luncheon. “It’s going to be a topic which will affect many facets of our profession,” Roepstorff said. “There is not only the economic impact, but the impact of the agricultural economy, and agriculture is huge for the Florida economy. The regulatory framing is unknown at this point.”

Leebar.org

January 2020

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The production of hemp is expected to be a replacement crop for citrus farmers who have experienced serious losses through the years because of disease and storm damage. A bill signed earlier this year by Gov. Ron DeSantis opened the door to move ahead with hemp CBD production.

Roepstorff believes a first draft of a regulatory plan could be before a Florida legislative committee in February.

“That will give us a look at the possible framework for licensing, manufacturing and cultivating,” he said.

“And how we are going to implement this in the legal framework.”

Compared with the passage of what he considers restrictive medical marijuana legislation, Roepstorff hopes hemp regulations will not be as confining.

“I think this [CR1] administration will have the hemp business become available to all sizes of business … and be much more widely available,” he said.

once hemp comes along, there will be a whole new set of regulations and you could see boutique firms and practice sections dedicated to hemp and marijuana.”

Anti-lobbying efforts In 2018, Florida voters approved Amendment 12, which prohibits public officials from lobbying for compensation during that person’s term in office and for six years after. Prior to Amendment 12 passing, the prohibition was two years.

A new bill could expand limitations and cripple workforce opportunities for ex-public officials.

Roepstorff says new limitations could prohibit former elected officials for working for law firms who lobby for legislation or for public institutions, like universities or colleges that receive state funds.

“They are basically handcuffing their employment in the private sector,” Roepstorff said. “I understand the nature of the bill, but it has gone too far at this point. I am in full agreement with the time buffer after they leave the legislature, but I don’t like to see what amounts to a restriction of employment because a lot of the legislature is made up of attorneys.”

Gun control

Adding to the legal dilemma will be the possibility recreational marijuana could become legal in Florida.

An amendment, driven by a citizen’s petition, could appear on the November ballot.

The growing issues postMarjory Stoneman Douglas are red flag laws, the building of a data base of individuals who pose a threat to themselves and to others, chronicling a mental health history of that individual and how that information is enforced.

That database could determine who can have a gun and who can’t. “It’s a big issue of due process, who decides the legal framework and who decides a gun should be taken from you or have your Second Amendment rights taken from you,” Roepstorff said. “It’s a very delicate balancing act.

“A lot of larger firms dedicate entire practice areas to alcohol and beverage regulation to the point that alcohol and beverage sales are more heavily regulated than hemp at this point,” Roepstorff said. “Certainly,

“The main thing we want to push is not necessarily having an outcome on the deciding issue but keeping track of how the debate is progressing and how cases can be decided legally. The bar does not have a dog in

Significant for the legal community will be enforcement of hemp use versus marijuana. “It will be the most prevalent issue to date on the criminal side for law enforcement in how to distinguish between hemp and marijuana,” Roepstorff said.

“They have a similar look in smell and appearance. It has caused a lot of frustration for law enforcement and the state attorney’s office.”

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this fight, but we obviously have clients and we need to stay especially vigilant every step of the way.”

Felon voting rights legislation

Roepstorff also wants to look at ways to create associate LCBA members, so that people who are not necessarily involved in the legal profession, can join and participate in issues that impact communities. This would require a change in the bylaws by vote of the membership.

“I am hoping we can get this done this year,” he said. “I want to start attracting those groups for our panels and lunches.”

His overall mission is simple: “I want our membership to feel like they are getting good value for their dues, the best value for their membership.”

Roepstorff's 2020 Agenda

In 2018, Florida voters approved an amendment allowing the restoration of voting rights for felons who have served the full term of their sentence. An estimated 1.4 million people with felony convictions became eligible to vote. Legal battles have erupted over what is considered the full term of a sentence, many believing restitution is not a part of it.

“It’s always so funny to me how an attorney can take the simplest of words and question the meaning,” Roepstorff said. “In this case, what is the full term of a sentence before the restoration of rights?”

Roepstorff knows the debate about completion of terms will continue for some time, while ex-felons wait for the right to vote. “What’s most important for the Bar is how fast we can get this resolved,” he said. “And what the Supervisor of Elections does in the meantime.”

(Issues tentatively set to be discussed during monthly luncheons)

Honoring the Bar

February: Hemp

Roepstorff’s aggressive and informational approach to issues impacting the Bar is drawn as much from his passion for the law but also his respect for colleagues.

April: Gun control

March: Anti-lobbying laws May: Immigration and sanctuary cities

“Protecting the reputation of the Bar. This is huge for me,” Roepstorff said. “There are so many judges and members of the association I have the highest level of respect for. There is a lot of responsibility to do the best you can for the people who put their trust in you. I never want to do anything to hurt the reputation of the Bar.”

June: Healthcare funding and drug imports July: Certificate of need repeal for hospitals August: Amendment 4 - Restoration of felon voting rights September: Cancellation of student loan debt October: Smoking and vaping

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100 club Is your firm part of the 100 Club? Any firm with two or more attorneys and 100% membership in the LCBA qualifies.

Absolute Law Aloia, Roland, Lubell & Morgan, PLLC Arend & Sisk, P.A. Associates and Bruce L. Scheiner, P.A. Avery, Whigham & Winesett, P.A. Banker Lopez Gassler, P.A. Bergermann Law Firm Bonita Springs City Attorney’s Office Boy Agnew Potanovic, PLLC Boyle & Leonard, P.A. Burandt, Adamski, Feichthaler & Sanchez, PLLC Buchanan Ingersoll & Rooney PC Calvo & Calvo Cody & Linde, PLLC Coleman & Coleman Cole Scott & Kissane, P.A., Bonita Springs Ofc. DeBoest, Stockman, Decker, Hagan, Cheffer & Webb-Martin, P.A. Elder Law Firm of Beth A. Prather, P.A. Florida Rural Legal Services Fort Myers City Attorney’s Office Garvin Law Firm

Geraghty, Dougherty, Edwards & Stockman, P.A. Goldberg Noone, LLC Goldstein, Buckley, Cechman, Rice & Purtz, P.A. Grant Fridkin Pearson GrayRobinson, P.A. Green, Schoenfeld & Kyle, LLP Grossman Law & Conflict Management Hahn Loeser & Parks LLP Henderson, Franklin, Starnes & Holt, P.A. John Webb Legal Group, P.L. Kelleher Firm Knott Ebelini Hart Kuhn Law Firm, PA Kushner & Kushner LaDonna J. Cody, P.A., Attorney at Law Law Firm of Scott T. Moorey The Law Office of Brantley Oakey The Law Office of Michael M. Raheb, P.A. Law Offices of Dennis L. Webb, P.A. Lee County Legal Aid Society, Inc. Levins & Associates, LLC Maughan Law Group

McQuagge Law Firm Men’s Rights Law Firm The North Law Firm, P.A. O’Halloran & O’Halloran, Attorneys at Law Osterhout & McKinney, P.A. Parvey & Frankel Attorneys, PA Patrone & Kemp, PA Pavese Law Firm Richard Johnston Law Robert Harris Law Firm Roetzel & Andress, L.P.A. Rubinstein & Holz Sheppard,Brett,Stewart,Hersch,Kinsey&Hill,P.A. Simmons Law Firm, P.A. Spivey Law Firm, Personal Injury Attorneys P.A. Strayhorn and Persons, P.L. Toll Law Vernis & Bowling of Southwest Florida, P.A. Viacava & Cantor Attorneys at Law Viles & Beckman, LLC Yeslow & Koeppel, P.A.

If you feel your firm is eligible, email a listing of your attorneys to admin@leebar.org and we will let you know.

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January 2020

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special feature

UNINTENDED CONSEQUENCES FOR FLORIDA'S NEW LOBBYING LAW

by tom hayden

AMENDMENT 12 - HOW IT WOUND UP ON THE 2018 BALLOT The 37-member Florida Constitution Revision Commission, which meets every 20 years, voted to put Amendment 12 on the ballot.

The CRC has the authority to refer constitutional amendments directly to the ballot for Florida voters. This broad authority is rare as Florida is the only state with a commission. Thirty members of the commission - or 81 percent - voted to place the amendment on the ballot, four voted “no,� and three did not vote. Almost 79 percent of Florida voters approved the amendment. It needed at least 60 percent to pass.

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I

n 2018, Florida voters approved Amendment 12, which prohibits public officials from lobbying the government during their time in office and for six years after they leave elected office. The amendment is a drastic change from the current “cooling off” period of two years.

The new law goes into effect Nov. 20, 2020, meaning any official elected next November will be required to follow the provisions of the new amendment. No one argues a law keeping public officials from using their influence for personal monetary gain is bad for the citizens of Florida.

The law helps keep corruption out of key offices that determine how state residents’ money is spent.

But many state legislators, like state Rep. Spencer Roach, R-Cape Coral, worry the law will deter qualified candidates from running for office or impact employee rights and opportunities for those who work in industries who do lobby for public money or have financial dealings with state-supported offices.

With the passing of Amendment 12, Florida will have the strictest anti-lobbying law in the country. Most states have a six-month or two-year waiting period before a person can accept a lobbying position. Some states have no waiting period. Roach wonders about the constitutionality of any waiting period, let alone Florida’s new six-year ban.

“I just really think this is ripe for a constitutional challenge,” Roach said. “I think it will happen. The impact is unforeseen at this point but many - especially attorneys - feel they will not be able to make a living after finishing three years of school.”

The theory being many attorneys work for firms or represent people who lobby for state funds or represent issues impacting public monies. A state legislator only makes $29,697 a year, so most need another job to make a living. The new law could make certain professions off limits should one be in public office or consider a run for an elected position.

Roach also believes the impact could extend beyond those who lobby for funding. He thinks those that provide representation to a client who goes before a zoning or county commission or hearing examiner, lobbying for a commercial zoning change, where profit on the future business is the ultimate goal, also could be hurt by the new law. “It may impact how you make a living,” he said.

Roach understands the intentions of the new law. “You want to screen out the unscrupulous actors. You don’t want crooks profiting off taxpayers,” he said.

Matt Roepstorff, the new president of the Lee County Bar Association, plans to bring together a panel of experts to

discuss the new law during the March LCBA luncheon. He, too, worries about the negative impact on his profession.

“While this comes from a good place because you always want to cut down on corruption, we do ask legislators to work full time, but we only pay them half a salary and now we are handcuffing their employment in the private sector,” Roepstorff said.

Although most states have mandatory “cooling off” periods, laws certainly aren’t uniform. Some states restrict lobbying for a government entity or agency. Some states allow unpaid lobbying positions with expenses reimbursed. A few states do not allow a legislator to represent individuals or agencies if the legislator was involved in writing the related legislation.

Prior to Florida voters passing Amendment 12, most major state newspapers supported the amendment in editorial opinions. “The main objection to Amendment 12 is that six years is too drastic and would discourage qualified people from running for office,” the Fort Lauderdale Sun-Sentinel said. “But if your motive for running is to become a lobbyist, perhaps ‘public service’ isn’t your proper calling.”

But like many of the Constitution Revision Commission amendments that passed, many newspapers wondered if this law should be part of the state constitution. “These rules should be addressed transparently by the state Legislature,” the Treasure Coast Newspapers stated.

ELIMINATING THE COMMISSION There are several bills before the Florida Legislature, when the new session starts Jan. 14, that would abolish the Constitution Revision Commission. The House Civil Justice Committee overwhelmingly supported two bills that would seek voter approval in 2020 to eliminate the commission. A similar bill was passed by the Florida Senate during the 2019 session, but failed in the House.

The commission drew ridicule in 2018 for the practice of “bundling,” combining several key issues, like banning offshore drilling and vaping, into the same amendment. It forced voters, who may have been for one issue but against another in the same amendment, to vote for the issue they wanted, despite their objections to the other issue. There also has been widespread criticism over whether the amendments passed in 2018, or in previous years, should even be part of the Florida Constitution.

The commission was established by voters as part of the 1968 Florida Constitution. At the time, the commission was created to provide a “generational review” of the state’s most powerful legal document.

January 2020

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the dish

The verdict is in: Caffé To

by michael f. hornung, esq.

T

he verdict is in: Caffé Toscano is the premier Italian restaurant not only in Lee County, but Southwest Florida.

Owner and chef Antonio Durante and his wife, Diana, team up to make the dining experience similar to eating at a trattoria in an Italian village. Antonio, who is from Florence, Italy, prepares all the dishes with only the best and freshest ingredients. He truly prepares everything from his heart. Caffé Toscano is located at 12901 McGregor Blvd. near College Parkway, in The Bridge Plaza.

Photo left top: owner and chef Antonio Durante with author Michael Hornung.

Photo left bottom: interior. Photo above: imported Italian wide egg pasta with scallops.

Ask Antonio about his Italian olives, cheeses, wines or truffles (both black and white when in season) and you can hear the passion in his voice.

Hopefully you are lucky enough to be there when he has precured a truffle from “his Italian source.”

stracchino (fresh cow’s milk cheese), coupled with colorful mixed olives. Next, we decided to share the homemade potato gnocchi, which had a heavenly Gorgonzola sauce with toasted walnuts and Parmigiano cheese.

We arrived for dinner on a busy Friday night and were promptly seated at a table right by the wine rack, the perfect location for our party. Our waitress greeted us immediately, was friendly and attentive all evening.

Warm bread was then served directly from Antonio’s oven. This is the type of bread, along with the butter, fit for a meal.

Our Case in Chief My guests opted for king salmon with Florida citrus and veal marsala. The king salmon, which is sometimes referred to as the Wagyu of Salmon, was baked to perfection and served with a Florida citrus sauce, herb roasted potato wedges and herb roasted zucchini and squash. The veal marsala, was a thinly pounded veal scaloppini prepared in a light Marsala and black truffle sauce with mushrooms, served with herb roasted potatoes and sautéed

The wine list is filled with Italian gems, and we started the evening with a Tuscany Rose wine.

Our opening statement We started the evening with the Tre Prosciutto Tre Formaggi, three types of prosciutto along with three Italian cheeses, Burrata, mozzarella and

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oscano is one of best around Photos this page (clockwise): bottle of Castellare I Sodi di San Niccolo` 2013, King Salmon, ravioli, Torta della Casa.

spinach terrine with gorgonzola.

I elected for the pappardelle bolognese.

For me, it is Italian comfort food at its best, my pasta was prepared to perfection, the wide egg pasta was served with an outstanding Bolognese sauce and topped with fresh grated parmigiano cheese. We choose the Sassicaia, one of many outstanding Super Tuscan wines to accompany our entrees.

The Closing Statement Believe it or not, you need to save room for the homemade desserts, cappuccino and espresso. Diana makes an olive oil cake which tastes like is directly from Florence.

CaffĂŠ Toscano is a must on your dining destinations for 2020. You will not be disappointed.

12901 McGregor Blvd. #21, Fort Myers 239.415.8466 | CaffeToscanoFL.com Tuesday - Saturday Lunch: 11:30 am - 2 pm Dinner: 5 - 9 pm

Michael Hornung opened his own law firm, Michael F. Hornung, P.A., in Fort Myers in April 1996. His practice areas include criminal defense, entertainment, arts and sports and personal injury-plaintiff. He received his law degree from St. Johns University.

January 2020

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special feature

RETIREMENT PLANS CAN BE U COLLECT CHILD SUPPORT by timothy c. voit

E

nvision a situation where a potential client walks into your office with a child support issue they want you to fix. It could be the non-custodial parent quit their job, moved to a different state or just simply fell off the face of the earth. A retirement plan can be an excellent, often-overlooked source for a non-paying spouse with little or no income to pay their current child support or arrearages.

A Qualified Domestic Relations Order (QDRO) is a court order directing a retirement plan administrator to make a distribution to a spouse, former spouse or dependent. QDROs can only be used to pay alimony or child support, or as in 99 percent of the cases, for purposes of dividing a retirement plan as marital property.

QDROs are almost exclusively used to divide pensions and 401(k)s as marital property. Divorce is not a prerequisite to entering a QDRO. The Internal Revenue Code defines an “alternate payee” in a QDRO as a spouse, former spouse or dependent. Retirement plans are protected based on the antialienation provisions of the Employee Retirement Income Security Act of 1974, and no portion can be taken away from a plan participant, not even in bankruptcy. The exception is for purposes of child support, alimony or division as marital property.

Here are three examples of how QDROs are used for current child

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support obligations and the collection of child support arrearages (based on actual cases).

A woman had four children and had not received child support in 10 years.

A judgment was obtained awarding the former wife of the non-custodial parent $160,000 in past-due child support. The non-custodial parent, as it turned out, went to work for a large company in another state, accumulating a sizable 401(k) balance Leebar.org

of $200,000. The near-actual figures are provided here for a reason.

Retirement accounts are “before-tax” assets, and whenever a distribution is made from a plan of this type, the plan administrator is required to withhold 20% for normal income taxes and on any direct distribution. The custodial parent received the after-tax 401(k) balance of $160,000. Caution is advised when arrearages are involved, since many plans will tax the recipient

USED TO

parent need not reside in the same state.

A banker was incarcerated for embezzling funds from the bank, though he, too, accumulated a sizable 401(k) balance. The banker, thinking his retirement plan was protected, thought he was going to get out of prison and enjoy the proceeds and the growth in his 401(k). Instead, the entire balance was used to pay child support both past and current.

A non-custodial parent had an ongoing child support obligation and over the years accumulated a fairly sizable 401(k) balance, even though their income was not very high. A QDRO was entered each year to pay ongoing child support out of the non-custodial parent’s 401(k). There is no provision in the Employee Retirement Income Security Act or the Internal Revenue Code that prohibits or limits the number of QDROs that can be served on a plan.

As you gather information on the facts of your client’s case, you might want to ask where the non-custodial parent works, if they know or where the non-custodial parent worked in the past. Do they or did they have a 401(k) or a pension? Pensions are not often portable, i.e. not transferable to another company nor rolled over to an account.

of the distribution, meaning the former spouse or custodial parent, even though child support is not meant to taxable to the custodial parent. When the child or children are named as the alternate payee in a QDRO, the non-custodial parent will typically incur the tax liability. The additional 10% federal tax penalty, often assumed, does not apply to QDRO distributions [I.R.C. 72(t)(2)(c)].

Also, what can be gleaned from this example is that the non-custodial

For past child support arrearages, most plans will only tax the recipient, not the plan participant. This is a problem, since child support is not taxable to a custodial parent but instead taxable to the non-custodial parent. The way to deal with this, when the retirement plan in question is a 401(k), is to gross up the amount to account for the tax liability incurred by the custodial parent in the event the plan will not assign the tax liability to the plan participant.

So, to arrive at the amount your client needs, the amount required must be grossed up 25% to account for the 20% mandatory withholding by January 2020

the plan. In other words, you would multiply the amount needed by 1.25 and award this amount to the custodial parent. For instance, if the amount owed is $10,000, the QDRO must award $12,500, since 20% deducted from $12,500 equals $10,000. This is a common mistake attorneys make, and if the amount is significant, say $300,000, your failure to do the math might create a liability.

Keep in mind that defined benefit “pension” plans pay a monthly pension benefit for life, beginning at some retirement age in the future. The monthly pension income stream can be valued as a lump sum from which the non-custodial parent can be awarded a portion of the monthly pension as payback for unpaid child support.

Pensions, however, do not in most cases pay a lump sum. For example, if a state or county employee in the Florida Retirement System doesn’t have any retirement savings, other than their pension, they might have accrued a $1,000 per month at retirement (age 62 for teachers, age 55 for law enforcement). If the $1,000 per month at present has a value of $50,000, and the custodial parent is owed $50,000, the custodial parent can be awarded $1,000 per month for the non-custodial parent’s pension.

With $16 billion dollars in child support going unpaid each year, $114 billion on the aggregate, and roughly $5 trillion dollars sitting in 401(k)s in the U.S., it only makes sense to include a QDRO in your arsenal of ways to help your client collect on child support.

Tim Voit is a financial analyst and president of Voit Econometrics Group, Inc., located in Bonita Springs. Voit is a certified QDRO specialist. He has been admitted as an expert in both state and federal courts. Voit has lectured to attorneys for Continuing Legal Education Credits (CLE) in several states and is the author of "Retirement Plan Benefits & QDROs in Divorce". Contact Tim at AskVoit@vecon.com or 239.948.7711.

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judge spotlight

Hon. Leigh Frizzell Hayes

1. I was born and raised in Fort Myers when this was a sleepy little town. The Frizzells were an old Southwest Florida pioneer family. My father was born in Punta Gorda. My great uncle owned most of what is Port Charlotte today from the Peace River to the Myakka River.

2. Growing up, my first job was running blueprints and specifications at my father’s architectural firm. After high school I worked at Grant’s near the Edison Mall. During summers while in college I worked at NBC-2. After college, I worked as a TV news writer and producer.

3. After graduating from Emory Law School in Atlanta over 30 years ago, I moved back to Fort Myers.

4. I would never have run for county judge back in 1996 if my husband, Bill, had not pushed me. Giving speeches and selling myself was especially terrifying for an introvert like me.

5. The most rewarding docket I’ve had was the eight years spent with Felony Drug Court. I still hear from past drug court participants. Their cases are long over, so ethically I can talk to them; and just the other day I ran into a person at 7-11, a person I sent to prison. He apologized.

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member spotlight

Deana Sisk, Esq.

1. I’ve been a BMX mom for over a dozen years. I have followed my sons as they raced all over the state, out of state and even went to Baku, Azerbaijan when they raced for Team USA in 2018. Sometimes I announce local races at their track in Punta Gorda.

2. Travel is my vice. My attitude is that I only work between vacations. Usually the trips involve testing my physical extremes: downhill mountain biking on Inca Trails, rock climbing in South Dakota, diving, rafting in Nepal, canyoning in Utah, zip lining in Peru, hiking in the Dolomites, exploring caves in Puerto Rico.

Next up is Whistler for a variety of activities.

3. I went hand gliding over this past Thanksgiving.

4. My volunteer work tends to involve children.

5. I always have a book with me. I operate a little free library at the Cooper Street Recreation Center in Punta Gorda.

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legal lens lcba social at downtown social house was held on November 21st.

The event included drinks, yummy appetizers and a give-away. It was sponsored by BankUnited and Alliance Financial Group.

1. Lauren Baugh, Mag. Kimberly Davis Bocelli, Lisa Portnoy (BankUnited sponsor), Stacey Adams (Alliance Financial Group sponsor), Mag. Gilberto Perez 2. Michael Lehnert, Lauren Baugh, Matt Roepstorff 3. Raffle winner Spencer Cordell, Lisa Portnoy, Stacey Adams, John Webb 4. Jonathan Martin, Mag. Kimberly Davis Bocelli 5. Scott Atwood, Mag. Gilberto Perez

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Photos courtesy of Connie Ramos-Williams and Lauren Baugh

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Brad Jessen, Financial Advisor 239.283.2582 edwardjones.com 12016 Matlacha Blvd, Suite C Matlacha Isles, FL 33991

January 2020

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in the news Send your news items to ResGestae@LeeBar.org.

Logan A. Goldberg has joined the personal injury law firm of Goldberg Noone, LLC, as an associate attorney. Goldberg earned his Bachelor’s of Science degree in criminology from Florida State University in 2015 and his Juris Doctorate Degree from Florida Agricultural and Mechanical College of Law (FAMU) in 2017. Upon passing the Florida Bar exam, Logan became a prosecutor for the state attorney’s office in Charlotte County, Florida. Logan’s father and one of Goldberg Noone’s founders, Scot D. Goldberg, is pleased to have his son working alongside him. “This is something we’ve planned on for many years,” Goldberg said. “I could not be happier to finally have him here."

Mark J. Joseph is joining the personal injury team at Aloia, Roland, Lubell & Morgan, PLLC. As an associate attorney, Joseph will provide support in the areas of serious personal injury, wrongful death, and first party insurance claims. Since joining the firm in 2016, Joseph served in the roles of law clerk, associate and intern, supporting the practice areas of personal injury, family law, business and commercial law. Joseph became a member of the Florida Bar in 2019. He was conferred a Juris Doctor in 2019 at Stetson College of Law while also completing his Master of Business Administration from Stetson University. Joseph holds a Bachelor of Science in Accounting from the University of Florida.

Litigation attorney Amanda Sharkey Ross of Henderson, Franklin, Starnes & Holt, P.A., was among an esteemed list of speakers discussing “Advanced Uninsured/Underinsured Motorist Law” at the Crowne Plaza in Fort Myers. She presented “Effective Settlement Negotiations and Arbitration,” as well as “Legal Ethics in Insurance Practice.” Ross focuses her litigation practice in the areas of transportation (automobile, marine, trucking) liability, premises liability, negligent security, wrongful death, construction litigation, and product liability. Ross is fluent in both English and Spanish.

In honor of the firm’s 100th anniversary in 2020, Hahn Loeser & Parks LLP is launching a 100 Acts of Kindness Initiative across each of the six offices. This effort is designed to celebrate the firm’s legacy of service and celebrate its success by highlighting the firm’s commitment to the community. Robert A. Cooper, Partner-in-Charge of the firm’s Fort Myers office, challenged the firm’s Fort Myers office to achieve the acts of kindness. “We look forward to engaging with those in our community and seeing the impact we can have on those in need,” Cooper said.

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