Res Gestae - January 2013

Judge Lee Schreiber

Mission Possible: Justice for Children Food for Thought Is the Food You’re Eating Toxic to Your Health?

• Administrative Law • Appellate Practice (State & Federal) • Business Law • Civil Litigation • Civil Rights • Construction Litigation • Corporate Law • Criminal Defense

• Disability Law • Education Law • Family Law • Foreclosure Defense • Garnishment • Landlord/Tenant • Small Claims • Veterans Issues

contents 11

6

Letter from the President

8

Letter from the Editor

11

by Mary C. Evans, Esq.

by Nanci DuBois

Judge Lee Schreiber Mission Possible: Justice for Children

by Anne Dalton, Esq.

14

Elder Abuse and Financial Exploitation

by Mark A. Horowitz, Esq.

17

Legal Briefs

28

On the Bench

News and Happenings

The Honorable Tara A. Paluck

by Sara Fitzpatrick Comito

14

29

From the Bar

Charles PT Phoenix, Esq.

by Sara Fitzpatrick Comito

31 34

Social Scene The Dish

Brew Babies Garden Bistro

by Sara Fitzpatrick Comito

36 34

The Ethics Corner

Ethics Update: Access Credentials, Gifts to Lawyers and More Pleas

by Jason Hunter Korn, Esq.

38

Get Hooked on Some Healthy Competition

Lee County Mock Trial Promises Learning, Fun and Fond Memories

by Sara Fitzpatrick Comito

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39

Food for Thought:

39 40 41 res gestae | january 2013

Calendar of Events

Is the Food You’re Eating Toxic to your Health?

100 Club Members

239.334.0047 resgestae@leebar.org

staff box Publisher Connie Ramos-Williams 239.690.9840 Executive Editor Nanci DuBois 239.334.0047 Assistant Editor Sara Fitzpatrick Comito Layout and Design Diane M. Shrock Advertising Director Linda Fiore 239.690.9840 Contributing Writers Nanci DuBois Sara Fitzpatrick Comito Anne Dalton, Esq. John Grey Mark Horowitz, Esq. Jason Hunter Korn, Esq. Mary C. Evans, Esq Billing Inquiries 239.334.0047 Res Gestae is published monthly by Conric Publishing in partnership with Lee County Bar Association.

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

We make every effort to ensure the accuracy of the information published, but cannot be held responsible for any consequences arising from omissions or errors.

Opinions expressed by our writers and advertisers are not necessarily opinions shared by the LCBA, Res Gestae, or CONRIC Publishing.

ON THE COVER: Judge

Lee Schreiber has served Southwest Florida as an attorney, mediator, magistrate and now judge. Read her story on page 11.

Cover Photo: Courtesy of Jim Jett, Jim Jett Photography

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5

letter from the president Happy New Year!

Not only can I not believe it is thirteen years past the turn of the century, I also have no explanation for how the time elapsed between my swearing in as Member-At-Large and my swearing in as President of the Bar. I can’t help but think of those insulting birthday cards that question what the heck happened to one’s youth. Well what the heck happened to the last four years?

While I am reflecting, perhaps I should go back a little farther and tell you more about myself. Or, as Austin Powers would say, “Allow myself to introduce… myself.” I was born (only a short while ago) in Washington, D.C., the oldest of four children, and grew up in Maryland. I have been to the Smithsonian museums too many times to count as it was cheap (free) entertainment for my Mom who was a homemaker with four children.

I moved to Fort Myers in 1988, earned an AA at Edison Community College, a BA from Florida Gulf Coast University, and a JD from Stetson College of Law. I was blessed ten years ago with a daughter, and married my lovely husband, Rowland, last May. The picture in last month’s Res Gestae was taken on the historic Rialto Bridge in Venice, Italy during our honeymoon. Now, that’s enough about me.

What can I do now, as your President, for you? The Lee County Bar Association is comprised of talented people, in and out of the courtroom, and we have events planned all year to highlight those talents. In furtherance of our mission, we also have events planned to serve and educate the public. Lastly, we even have some social events on tap. (Pun intended.) What would you like to see happen? Do you have any suggestions? (Note: Making good suggestions could result in your being involuntarily volunteered for something.) Don’t hesitate to e-mail me, call me, or stop me in the hallway at the courthouse. I am very interested in hearing from you because, together, we can think outside the box to make this a very happy new year indeed! |RG| Mary C. Evans, Esq. mary@maryevanslawyer.com | (239) 226-1062

“Together, we can think outside the box to make this a very happy new year indeed!”

Mark your calendars

once upon a new moon iii - bench bar gala saturday, january 12, 2013 Join us for a black tie event celebrating our attorneys and judiciary of the Lee County Bar Association. 300 people are expected to attend this year’s event, which includes cocktails, “Surf & Turf” dinner, music from the “The Juice” band, dancing and more. Tickets are just $100 per person, and should be prepaid and reserved by Thursday, January 3, 2013 online at www.leebar. org. The event will be held at Harborside Event Center located at 1375 Monroe Street, Fort Myers, FL 33901.

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res gestae | january 2013

Lee County Bar Association administrative team executive director Nanci G. DuBois executive assistant Lisa Poulin Lawyer Referral & Pro Bono coordinator Lee Hillman

Executive Council President Mary C. Evans, Esq.

Vice-President John D. Agnew, Esq. Secretary Anne Dalton, Esq. Treasurer Scott Atwood, Esq. Member-at-Large Kelly Fayer, Esq.

Committees History E. Bruce Strayhorn, Esq. & Jenna Persons, Esq. Law Related Education Scott Atwood, Esq. Law Week Hon. John S. Carlin Library Robert L. Donald, Esq. Mock Trial Renee Binns, Esq. Past President Michael Randolph, Esq. Pro Bono Vanessa Cordero, Esq. and Katie Berkey, Esq. PR & Marketing Leadership In Development Social Events Kelly Fayer, Esq. & Amanda Mitteer-Bartley, Esq. technology Michael E. Chionopoulos, Esq. Young Lawyers Spencer Cordell, Esq.

practice section chairs Alternative dispute resolution Anne Dalton, Esq. criminal law Keith Upson, Esq. Real Property, Probate & trust law Kenneth Kemp, Esq. General Civil & Business Litigation Michael G. Fink, Esq. Tort Litigation Preston John (PJ) Scheiner, Esq. Family Law Rana Holz, Esq. & Jo Ellen Kane, Esq. Land Use & Governmental Law Russell Schropp, Esq.

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7

letter from the editor

Happy New Year!

Our Bench/Bar Gala is coming up on January 12, so if you let your RSVP for the event get buried in the greeting cards, we can send you another via e-mail, or simply go to our website and register (and pay online, if you wish) and add this to your must-go events. The music, the fun, and the meal will be great!

Now that the holidays are behind us, it’s time to make your New Year’s Resolution…the one you won’t be likely to break, that is!

Think Outside the Box

RESOLVE TO HELP YOURSELF AND YOUR LAW PRACTICE IN UNEXPECTED WAYS THIS YEAR

If you have not tried our Lawyer Referral Service, it’s time you did. We have “gaps” in Practice Areas. Ask us for the list, before we turn away ONE MORE POTENTIAL NEW CLIENT OF YOURS!

We are making some changes that will please you and bring in more clients:

• No more LCBA LRS Administrative Fee will be collected by us for contingency-type cases.

Drives the client to your door without ANY advance outlay

• Increasing the amount the attorney keeps from fees before the 10% rebate to LCBA from $100 to $500 More money stays with the firm

• Establishing Social Media connections for our Lawyer Referral Service to increase public awareness of our service.

Bringing the pre-qualified client and brief description of the legal matter to you through our Service • Reviving our LCBA Marketing & Public Relations Committee to work on getting speaking engagements to promote our Lawyer Referral Service and Law Week event “The Law at Harborside,” to service organizations, chambers of commerce, etc.

Boost your firm’s reputation & name-recognition by participating

NOTE TO MEMBERS

Small Claims Pretrials will begin at 8:30 a.m. on Wednesdays in Courtroom 5C beginning January 16, 2013. The time is changing from 9 to 8:30 a.m. effective January 16, 2013.

Nanci G. DuBois info@leebar.org | (239) 334-0047 ext. 102

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res gestae | january 2013

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Judge Lee Schreiber is one of those lucky people who can’t wait to get to work each day. Her fascination with the law was sparked by her fourth grade civics teacher, who explained that the law does not consider us born until a birth certificate is issued and does not consider us as passed on until a death certificate is issued. Her ongoing contemplation of the legal influence over the “part in between” has led her to a successful career as a litigator, then mediator, then magistrate, and now Judge over the “E-2 dependency docket” – self-described as “exhausting and exhilarating.”

On the surface, she seems to have followed a traditional high-performing career path - high school athlete and cheerleader, Student Government President at Bishop Verot, Edison Community College, University of Florida undergrad and Law School – but she is anything but a traditionalist.

The twin themes of her life have been her faith-inspired need to help lift up others less fortunate and a remarkable knack for systemic organization. In addition, as the middle child of five, she has been focussed from childhood on the need to fix problems in a holistic rather than confrontational manner.

After graduating from UF, she returned home to save money for law school and worked for two years as Traffic and Misdemeanor Trial Clerk for Lee County Courts, as well as waitressing at night. She became re-acquainted during this time with fellow high school student and athlete Joe Papp when her sister and his brother conspired to get them together on a movie date, a conspiracy leading to their five year courtship, 27 year marriage and a happy home life continuing to this day.

As a family law litigator for 20 years, most of that as a certified mediator, her primary focus was always on protecting the children and finding a creative solution to problems.

She carried this mediation-based approach into her work as a magistrate by specializing in helping self-represented litigants problem-solve their own issues in an effort to stop common family court cycles of despair and continuing conflict. In addition, she facilitated more rapid processing of

cases through the court system by standardizing the Circuit’s General Magistrate Report and Recommendation forms.

Upon Judge James Seals’ announcement of his impending retirement from the Dependency Court bench, Judge Schreiber sought out this new assignment to continue his outstanding work in this arena. She believes this is an area of the law where she can really make a difference, in that she orders the placement of families with resources to create positive and permanent life changes.

She comes to this position with a broad base of knowledge of community resources, having been pro-active as an attorney and magistrate in helping to create desperately needed community services such as the Family Resource Center (supervised parenting time services).

Giving back to the community, where she’s lived for more than fifty years, was instilled in her from a young age. Among other state-wide leadership positions, Judge Schreiber was a founding member and past President of the Lee County Association of Family Law Professionals, an interdisciplinary organization of professionals who emphasize problem solving approaches. Judge Schreiber cannot stress enough the positive impact her interdisciplinary trainings and leadership opportunities has had and believes it has greatly enhanced her ability to grasp issues and deliver well reasoned decisions. Schreiber believes that she has the ability to have a positive impact on our community’s children and families.

Schreiber summarizes her work as a day to day challenge: “If I can do some small thing to make these children’s day brighter or their lives safe and happy, then I have accomplished my mission.” |RG|

“If I can do some small thing to make these children’s day brighter or their lives safe and happy, then I have accomplished my mission.”

Anne Dalton, Esquire is the Chair of the ADR Section of the LCBA, and was recently elected to the National Academy of Distinguished Neutrals.

She provides mediation and arbitration services in the areas of circuit civil, dependency, guardianship, probate, foreclosure, family and county law. www.daltonlegal.com

res gestae | january 2013

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Elder Abuse Financial Exploitation

by Mark A. Horowitz, Esq. Respect your elders! We have all heard this edict growing up. Unfortunately, elder abuse and exploitation is a cultural and social problem of growing magnitude.

Elder abuse takes two basic forms-physical and emotional. Exploitation is usually financial in character or nature. Physical abuse takes the form of beating, slapping, physical restraint and/or captivity. Real-life examples are found when a caregiver’s daughter slaps her 85-year-old mother when she accidentally wets her pants due to incontinence or a caregiver fails to render care to a bed ridden elder and bedsores set in.

It can be found in a facility setting where a caregiver becomes upset with a recalcitrant elder about taking a shower and pushes him and he slips, falls and breaks his collarbone.

Emotional abuse consists of yelling, berating, coercion or using fear and/or intimidation with an elder. Studies have proven that emotional abuse leads to depression, loneliness, isolation and can result in the aggravation of physical infirmities. It can be the failure of a caregiver to pick up medication from the pharmacy or worse yet, illegal diversion of pain medication from an elder in need of pain relief. Failure to interact or have contact with an elder can also be a form of emotional abuse.

Financial exploitation is on the rise due to difficult economic times. From the unlicensed roofing contractor utilizing fear and intimidation and preying on the infirmity of his victim to the improper use of a power of attorney or joint bank account by a wayward child, financial exploitation can take many different form and shapes.

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res gestae | january 2013

Who are the abusers and how pervasive is it?

Unfortunately, “caregivers� are the most likely source of elder abuse and exploitation. The abuser can also be third parties such as hired home health aides, facility employees, or children of the elder. Children, or grandchildren of the elder, are unfortunately, the most likely to financially exploit the infirm and aged elder.

In 1998, approximately 500,000 cases were reported of elder abuse and exploitation and it was estimated that this was “only the tip of the iceberg” according to the National Center on Elder Abuse. Currently it is estimated that there are 10,000-15,000 cases in Florida alone but only a fraction of these are actually reported because of fear of more abuse and reprisal.

Signs of Elder Abuse and Financial Exploitation 1. Are there obvious signs of physical abuse such as cuts, bruises, fractures, burns or bedsores?

2. How frail or incapacitated is the elder? Abusers prey on the most vulnerable and weak of the elder demographic class.

3. Has the elder recently made unexplained gifts or signed documents not understanding their import. Along the same lines, were the gifts made to caregivers or were they made to the natural bounty ofthe elder’s affection?

4. Has the elder suddenly run out of money or unable to pay his or her bills?

The legislature in Florida addressed a great number of these concerns by enacting Chapter 415 of the Florida Statutes. The statutory framework set forth in this chapter governs elder abuse and provides an administrative protocol that created a reporting requirement, established the elder abuse hotline and put into place the Adult Protective Services Agency which is under the jurisdiction of the Department of Children and Families.

The Florida legislature recognized that vulnerable adults need and deserve a comprehensive set of protections to ward off abuse and exploitation. The Adult Protective Services Act was passed with the intention of protecting the disabled and the aged (i.e. vulnerable adults) from abuse, neglect (including self-neglect) and exploitation. A “vulnerable adult” is defined as someone 18 years of age, or older, who is unable to perform their normal daily activities or is unable to protect themselves due to disability and/ or the infirmities of aging. Perhaps the most remedial of its provisions creates an affirmative and mandatory duty on the part of healthcare providers, paramedics, nursing home and ALF institutions, law enforcement and mental health service providers to report when they have knowledge of, or reasonable cause to suspect, that an adult is being abused, neglected or exploited. Interestingly, attorneys are not required to report abuse, neglect or exploitation because of their professional responsibility to maintain client confidences. However, if the client does not expressly

request that the abuse, exploitation or neglect be kept confidential the better practice would be for the attorney to make the call to the elder abuse hotline. Further, an attorney has affirmative duty to advise a client that if the client reports the abuse, neglect or exploitation to a medical provider or others they are under an obligation to report it to the elder abuse hotline. The phone number for the elder abuse hotline is 1-800-96-A-B-U-S-E (1-800-962-2873) or the abuse hotline can be accessed at http://www.def.state.fl.us/ abuse/report/index.asp. DCF will initiate an investigation within 24 hours and if they find that the abuse, neglect or exploitation is at the hands of one other than the caregiver, spouse or family member, they will notify law enforcement immediately. If the vulnerable adult does not consent or cannot consent to protective action than DCF can bring an action in circuit court on an emergency basis and obtain court authorization to provide protective services. If the vulnerable adult is an eminent threat of physical harm or danger or needs to receive immediate medical attention and cannot or will not consent then DCF is authorized to obtain the necessary services and then seek court authorization thereafter.

Florida Statute §415.1111 provides a statutory cause of action for actual and punitive damages plus an award of attorney’s fees and costs to the prevailing party. If the vulnerable adult is over 65 years of age then the matter can be advanced on the trial docket to ensure a speedy trial.

Additional civil remedies involve placing the vulnerable adult under a guardianship, seeking redress under a common-law tort theory for assault, conversion, intentional infliction of emotional distress or civil theft under Florida statute section 772.11 whereby treble damages are allowed plus an award of attorney fees and costs to the prevailing party.

Criminal penalties range from misdemeanors to felonies.

Florida Statute Chapter 825 makes financial exploitation a felony in the first degree if the financial loss is more than $100,000 and a felony in the second or third degree for lesser sums.

In conclusion, as our population lives longer, elder abuse, neglect and exploitation will no doubt become more commonplace and lawyers should be aware of the incidence of abuse, neglect and exploitation as well as the signs of the same and the civil and criminal remedies for such unforgivable conduct. |RG| *Mark A. Horowitz was born and raised in Fort Myers and has practiced law in Lee County for 29 years. He is a partner in the law firm of Warchol, Merchant and Rollings, LLP located in Cape Coral and practices in the area of guardianships, planning for incapacity, elder abuse and exploitation and public assistance benefits and planning for elders as well as commercial litigation. res gestae | january 2013

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legal briefs

McKinney appointed as president of the Florida State Guardianship Association

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Lance McKinney, certified elder law attorney with Osterhout and McKinney, P.A., has been appointed president of the Florida State Guardianship Association until July 2013.

The FSGA is a nonprofit corporation founded in 1983 for the improvement of guardianship services. Governed by a board of directors representing five geographical areas of the State, FSGA is dedicated to promoting the protection, dignity, and value of incapacitated persons through ethics, advocacy and the dissemination of information.

FSGA’s mission also includes a focus on furthering the professionalization of guardians as accountable court representatives through education, networking and legislative action. The FSGA is proud to be an affiliate of the National Guardianship Association.

McKinney is a member of the National Association of Elder Law Attorneys and the Academy of Florida Elder Law Attorneys.

He has also received formal training in investment fiduciary responsibility and earned the AIFÂŽ designation from the Center for Fiduciary Studies through the University of Pittsburgh.

He served as a barrister in the Inns of Court and on the board of directors of Age Link, an agency that provides information and referrals to the elderly.

Osterhout & McKinney, P.A. is located in Fort Myers at 3783 Seago Lane. For more information, call 239-939-4888 or visit www.omplaw.com.

res gestae | january 2013

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legal briefs Goldstein, Buckley, Cechman, Rice & Purtz selected to U.S. News 2013 Best law firms

The Southwest Florida law firm Goldstein, Buckley, Cechman, Rice & Purtz, P.A., received a Tier 1 Litigation ranking in the 2013 edition of U.S. News – Best Lawyers Best law firms.

To be eligible for a ranking, a law firm must have at least one lawyer who is included in Best Lawyers as part of the annual peer-review assessment.

Managing Partner J. Jeffrey Rice was selected for inclusion in the 19th edition of The Best Lawyers in America 2013, published by Woodward/White. Rice has received this distinction for five consecutive years. Rice is certified in Civil Trial Law, Business Litigation and Construction Law by The Florida Bar Board of Certification. In addition, attorneys John B. Cechman and Richard L. Purtz are certified in Civil Trial Law. Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Because Best Lawyers is based on an exhaustive peer-review survey evaluating the legal abilities of other lawyers in their practice areas, and lawyers are not required nor allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor. For more information, visit www.JusticeStartsNow.com, call **LAW (529) on a mobile phone, or 239-334-1146.

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res gestae | january 2013

New Attorney Joins Real Estate Law Firm

The Law Office of Kevin F. Jursinski & Associates is proud to announce the addition of its newest associate attorney, James W. McQuade. Attorney McQuade focuses his area of practice on complex litigation including commercial law, foreclosure defense, and landlord/ tenant disputes. Attorney McQuade graduated from the University of Denver College of Law in 2005. He then moved to Florida and earned his LL.M. (Master of Laws) in Estate Planning at the University of Miami in 2005. He earned his Bachelor of Science degree in Finance from the University of Colorado in 2001. Attorney McQuade is admitted to practice law in both Florida and Colorado.

Prior to joining the Law Office of Kevin F. Jursinski & Associates, James worked in Key West, Florida as an associate attorney with an emphasis in litigation having worked in criminal defense and was a Special Assistant Public Defender for juveniles. Additionally, James concentrated in the area of Estate Planning and Probate.

Visit www.kfjlaw.com for more information about the Law Office of Kevin F. Jursinski & Associates.

legal briefs Attorney Susan M. McLaughlin joins Pavese Law Firm Attorney Susan M. McLaughlin has joined the Pavese Law Firm, bringing more tha 30 years of experience as a litigator to the firm. Her practice area is focused on condominium and homeowner association law, and includes assisting clients with rule enforcement, discrimination charges, insurance claims, breach of contract, and all manner of dispute resolution.

Previously, McLaughlin was a founding partner with the Condo & HOA Law Group, PLLC and has worked at other firms in Fort Myers with a focus on workers’ compensation compliance and civil litigation. Before moving to Florida, McLaughlin was a shareholder in the firm of Harvey, Pennington, Ltd., a Philadelphia based firm, where she practiced law from 1979 to 2001. Prior to joining Harvey, Pennington, McLaughlin was a staff attorney with Liberty Mutual Insurance Company.

McLaughlin is a former arbitrator, mediator, facilitator, and judge pro tem with the Philadelphia Common Pleas Court; former President of the Worker’s Compensation Law Section of the Pennsylvania Bar Association; former faculty member, course planner, and lecturer for the Pennsylvania Bar Institute; and has presented seminars and published on numerous legal topics.

McLaughlin is a graduate of New York University and has a law degree from Villanova University. She has earned the LexisNexis Martindale-Hubbell AV® Preeminent ™ rating, the highest possible rating for professional skill and integrity in the legal profession based on the confidential opinions of the practicing attorneys and judges surveyed.

For more information visit www.paveselaw.com.

FORT MYERS LITIGATION ATTORNEY JOHN LEWIS NAMED TRIAL LAWYER OF THE YEAR

The law firm of Henderson, Franklin, Starnes & Holt, P.A. is pleased to announce that Attorney John Lewis was named “Trial Lawyer of the Year” at the annual judicial dinner of the Southwest Florida Chapter of the American Board of Trial Advocates (ABOTA). The criteria for this lifetime achievement award include being an excellent advocate with a distinguished career and having a superb reputation of high ethics and fair play. ABOTA is an invitation-only national organization of trial attorneys dedicated to preserving the independence of the judiciary and the right to trial by jury.

Lewis has been Board Certified in Civil Trial Law by the Florida Bar since 1991. He concentrates his practice in the defense of tort claims and handles civil rights litigation in state and federal court. He also represents school boards, cities, counties and other governmental entities in various matters. Lewis holds an AV rating by Martindale-Hubbell.

Lewis is a member of the Florida Defense Lawyers Association, Defense Research Institute, American Board of Trial Advocates, and is an original member of the Calusa Inns of Court Chapter. He is also past president of the Lee County Bar Association. Lewis received his undergraduate degree, law degree and Masters Degree from Florida State University.

For more information on Lewis or Henderson Franklin, please visit www.henlaw.com.

• Depositions • Court Hearings / Trials • Meetings • Independent Medical Examinations • Public Hearings

• Real-Time Services • Video Conferencing • E-Transcript • Compressed Transcripts and Word Index • Transcript of Media

2231 First Street, Fort Myers, FL 33901 • 888-408-2380 • 239-334-1411 • www.FMCR-NCR.com res gestae | january 2013

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legal briefs Phoenix File & Pagidipati PLLC Diversifies, Hires Senior Litigation Counsel

Phoenix File & Pagidipati PLLC is pleased to announce the recent hiring of John Buscher. Mr. Buscher will act as Senior Litigation Counsel at Phoenix File’s Sanibel location.

Mr. Buscher is licensed to Practice in the states of Illinois and Florida, and is experienced in litigation management and supervision of outside counsel as part of an international litigation practice. Mr. Buscher has broad scope representation of multinational corporate clients, and has the proven ability to strategically manage litigation files and evaluate claims with an eye towards successful and economic litigation. He has successfully litigated on behalf of aviation and transportation industry clients; including insurance defense, Carmack Amendment claims, Warsaw Convention litigation, trademark violation claims and licensing disputes. “John is bringing over ten years of commercial litigation, insurance defense and litigation management experience in the Chicago market. I am thrilled to welcome him to the firm,” stated managing attorney Charles PT Phoenix.

Phoenix File & Pagidipati PLLC combines legal backgrounds with seamless service to produce progressive legal solutions for clients for today’s changing world and businesses as they face big challenges. For more information visit www.phoenixfile.com or call (239) 461-0101.

Voices for Kids of Southwest Florida ‘Celebrate the Voices’ Event Raises over $64,000!

Voices for Kid of Southwest Florida, Inc. (VFK), a nonprofit agency supporting Florida’s 20th Judicial Circuit Guardian ad Litem Program, raised over $64,000 through its ‘Celebrate the Voices’ signature fundraising events in Lee and Collier counties on November 10 and 17, 2012. The much needed dollars raised will assist VFK to recruit and train Guardians for the 575 children who do not have one and fund its Kids Being Kids Program which provides those items that give the 1,440 children in the program a sense of normalcy in their lives: a warm cozy bed; emergency clothing; participation in sports the arts, social clubs; academic tutoring; happier birthdays; summer camp; medical needs, etc.

Joseph R. Catti, President & CEO of FineMark National Bank & Trust, was awarded the esteemed Voice of the Year award.

“We were thrilled to honor Joe with the Voice of the Year community recognition award. The award is in recognition for his exemplary leadership, advocacy and commitment to the most vulnerable, neglected and abandoned children in our community.

Over the years, I have witnessed the positive impact he has made on children and young adults in our community,” states Darlene Ann Grossman, VFK’s Executive Director. For further information or to make a donation, please call Darlene Grossman at 533-1435 or email Darlene@voicesforkids.org or visit the Voices for Kids website at www.voicesforkids.org.

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legal briefs Two new associate attorneys join team at Goldstein, Buckley, Cechman, Rice & Purtz, P.A. The law offices of Goldstein, Buckley, Cechman, Rice & Purtz, P.A., have hired Theresa A. Daniels and Scott J. Hertz as associate attorneys.

Daniels, formerly of Daniels Law, P.A., is experienced in family and Social Security disability law. She is admitted to practice in Florida State Courts and to the U.S. District Court for the Middle District of Florida. Daniels graduated cum laude from Barry University School of Law. She is a member of The Florida Bar, Lee County Bar Association, Young Lawyers Division of The Florida Bar, and serves on the board of the Lee County Association of Women Lawyers.

Hertz’s diverse professional background includes ownership Scott J. Hertz Theresa A. Daniels of a technology consulting company, Intelligent Solutions, and a licensed Realtor and general contractor in the state of Florida. His law practice will include commercial, construction, governmental and land-use law. He is admitted to practice in Florida State Courts and is admitted to the U.S. District Court for the Middle District of Florida.

Hertz previously served as a commissioner of the Cape Coral Community Redevelopment Agency and president of the Cape Coral Construction Industry Association. He is a member of The Florida Bar, Lee County Bar Association and Cape Coral Construction Industry Association. Hertz graduated from Florida International University and Ave Maria School of Law, magna cum laude.

Goldstein, Buckley, Cechman, Rice & Purtz, P.A., celebrating its 50th anniversary, provides a full complement of legal services to clients in its Fort Myers, Cape Coral, Naples, Lehigh Acres and Port Charlotte offices. For more information, visit www.

JusticeStartsNow.com, call **LAW (529) on a mobile phone, or 239-334-1146.

BOARD CERTIFIED LABOR AND EMPLOYMENT LAWYER

Employment Law Litigation & Consultation Sexual Harassment Whistleblower Claims Discrimination & EEOC Overtime & Unpaid Wages All Other Employment Matters phone 239.334.7017 | FAX 239.334.6662 1625 Hendry street | Suite 103 | Fort Myers, Florida | 33901 JASON@GUNTERFIRM.COM | WWW.GUNTERFIRM.COM

october 2012 Levins and associates, LLc

res gestae | january 2013

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legal briefs Pavese Law Firm partner Diane L. Jensen receives Alexander L. Paskay Professionalism Award

Pavese Law Firm partner Diane L. Jensen was presented with the Alexander L. Paskay Professionalism Award at the annual meeting of the Southwest Florida Bankruptcy Professional Association held on Sept. 12 at the Edison Restaurant, Bar and Banquet Center in Fort Myers. The award honors Jensen for achieving outstanding effectiveness in the presentation of matters to the Bankruptcy Court, for her reputation for thorough preparation, demonstrating civility and courtesy to opposing counsel, appropriate courtroom demeanor, ethical conduct and professionalism at the highest level and longterm service to the bankruptcy bar. The award was created in honor of the late Judge Alexander L. Paskay for his outstanding contributions to the legal profession.

Jensen joined Pavese Law Firm in 1973 and became a partner in the firm in 1978. Her practice areas include bankruptcy, real estate and estate planning and probate. Jensen is a member and past-chair of the Southwest Florida Bankruptcy Professional Association. She is also a member of the Lee County Bar Association. Jensen has been selected to the list of Best Lawyers in America for 2013 for her practice area in bankruptcy and creditor debtor rights/insolvency and reorganization. Her community involvement includes serving as a past board member and past chair of the Chamber of Southwest Florida. She is an honorary life member of the Lee County Unit of the American Cancer Society. Currently, Jensen serves as director of the Pilot Club of Fort Myers and has held several offices within the organization. In addition, she has held appointments at the district and international levels of Pilot International.

Pavese Law Firm is a full-service law firm with offices in Fort Myers, Cape Coral and West Palm Beach. The firm provides a broad range of legal services for individuals, families, small businesses and large corporations. Practice areas include agricultural, banking and finance, bankruptcy, business and taxation, civil litigation, community association, employment, environmental and water, estate planning, probate and trust, family, land use and government, and real estate law.

Complex Litigation Support has taken great strides in the development of new and innovative litigation support technologies to most effectively identify, retrieve, preserve, process, analyze and present Electronically Stored Information. Coastal Research & Investigations is knowledgeable about Florida’s recently enacted “Electronic Discovery” Rules of Civil Procedure and how to best use the these laws combined with the most advanced litigation support technologies available to help win your case.

• Research and Investigations • Electronic Discovery

• Computer and Cell Phone Forensics • Multimedia Presentations

CoastalResearchOnline.com • 239.209.8220 22

res gestae | january 2013

KEMPTON P. LOGAN, ESQ. Certified Mediator/Arbitrator • Certified Circuit-Civil / Federal Mediator since 1991 • Panel Arbitrator, American Arbitration Association and 20 th Judicial Circuit • Over 30 years civil litigation experience in Southwest Florida, including Personal Injury, Contract, Partnership, Real Estate, Insurance, and Probate. MartindaleHubbel AV rating.

• Available for Court ordered or private arbitration.

• www.kemptonlogan.com For Scheduling - Please call (239) 470-7190 or email: loganlaw@earthlink.net

res gestae | january 2013

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legal briefs Laird A. Lile P.A. ranked among Best Law Firms

Laird A. Lile, a wills, trusts and estates attorney in Naples, received a first-tier ranking from U.S. News – Best Lawyers, a peer-review legal publication.

A member of the Florida Trend Legal Elite Hall of Fame and included in The Best Lawyers in America 2013 for the 15th consecutive year, Lile received first-tier rankings in litigation as well as trusts and estates law.

The first-tier ranking was determined through the firm’s overall evaluation, which was derived from a combination of client feedback, surveys and Best Lawyers peer review.

The 2012-2013 Best Law Firms ranking will be featured in the Nov. 20 issue of U.S. News & World Report’s Money issue; the national and metropolitan first-tier rankings will also be featured in the “Best Law Firm” stand-alone publication.

Lile is certified by The Florida Bar as a Wills, Trusts and Estates lawyer and is a Fellow and member of the Board of Regents in the American College of Trust and Estate Counsel.

An elected member of the Board of Governors for The Florida Bar and past chair of its Real Property, Probate and Trust Law Section, Lile has been included in Woodward/White’s The Best Lawyers in America since 1995 and is recognized as one of Florida’s 100 Top Super Lawyers. Lile was recently named to the Barbara Bush Foundation for Family Literacy Planned Gifts Committee.

Laird A. Lile, P.A., offers legal counsel on estate- and trust-related matters, including estate planning, estate and trust administration, probate-related litigation and tax matters. The firm’s office is located at 3033 Riviera Drive, Suite 104, in Naples. For more information, call 239-649-7778 or visit www.LairdALile.com.

Since its inception in 1983, Best Lawyers has become universally regarded as the definitive guide to legal excellence. Best Lawyers lists are excerpted in a wide range of general interest, business and legal publication worldwide, reaching an audience of more than 17 million readers.

The risk of personal information falling into the wrong hands is something we all worry about.

The Lee County Solid Waste Division provides secure document shredding services to Lee County businesses at the Lee County Resource Recovery Facility at 10550 Buckingham Rd., Fort Myers (off SR 82).

For a nominal fee of $35.00/ton ($12.00 minimum fee) you can ensure that your sensitive information has been completely destroyed. Our staff is HIPPA trained. Paper clips and staples do not need to be removed. For additional information and hours of operation call the Lee County Solid Waste Division @ 239-533-8000.

We issue a Certificate of Destruction.

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legal briefs

Mediation and arbitration

When it comes to mediation and arbitration, we understand.

Meet the Henderson Franklin attorneys ready to help:

david L. Cook Florida Bar Board Certified Real Estate Lawyer Supreme Court Certified Circuit Civil Mediator

L. david Sims Florida Bar Board Certified Marital and Family Lawyer Certified Family Mediator

C. richard Mancini

robert C. Shearman

Supreme Court Certified Circuit Civil Mediator FINRA Certified Arbitrator

Florida Bar Board Certified Civil Trial Lawyer Supreme Court Certified Circuit Civil Mediator

G. donald thomson

eugene “Chip” H. Smith

Supreme Court Certified Circuit Civil Mediator

Florida Bar Board Certified Civil Trial Lawyer Supreme Court Certified Circuit Civil Mediator

the Florida Supreme Court has certified Leonard P. Reina as an appellate mediator The Florida Supreme Court has certified Leonard P. Reina of Mediation & Arbitration Services Inc.as an appellate mediator.

Mr. Reina holds additional certifications by the Florida Supreme Court as a Family Law Mediator and a Circuit Civil Court Mediator as well as being certified as a Mediator with the United States District Court for the Middle District of Florida.

He has also been appointed to act as an Arbitrator, Special Master and Custodian. For information call 239-263-2059 or visit his website WWW.LPReina.Info for available dates.

These Martindale Hubbell AV-Rated lawyers are skilled in negotiation and mediation, and in representing our clients in binding and nonbinding arbitration in matters of: • Circuit Court Mediation • Commercial and Civil Litigation, including Personal Injury • Construction Law Disputes • Corporate Partnership Disputes • Employment Law and Civil Rights Disputes

• Family Law Mediation • Financial Industry Regulatory Authority Arbitration • Real Estate, including Homeowner and Condominium Associations • Securities and Investment Dispute Mediation

Adapting. Changing. Moving forward. henlaw.com • 239.344.1100 Fort Myers • Bonita Springs • Sanibel • Naples* ©2013 Henderson Franklin Starnes & Holt, P.A.

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Patent • Trademark • Copyright Franchise & Related Business Law and Litigation

800-548-4332 • 239-262-8502 www.TheLivingstonFirm.com Offices in Naples and Fort Myers

When it Matters Most, Trust Andrew A. Bokan.

Marital & Family Law Services for Southwest Florida.

No one is more adept at handling the complexities of your marital or family legal matter than Andrew A. Bokan. Compassion and skill for resolving disputes are the hallmarks of his experience. Having served as both an attorney and Magistrate, Andrew is uniquely qualified to represent your interests. Entrust your case to the marital and family law team at Knott • Ebelini • Hart.

MARITAL & FAMILY L AW PRACTIC E A R E A S

• Dissolution of Marriage (Divorce) • Uncontested and

• Adoptions • Prenuptial and Postnuptial

• Modifications of Child Support,

• Name Changes of Adults

Simplified Divorces

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Alimony, Custody and Time Sharing Relocation Paternity/Original Child Support and Custody Determinations Domestic Violence Temporary Custody by Extended Family Members

res gestae | january 2013

Agreements

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and Minor Children Emergency Parenting Matters Contempt and Enforcement Proceedings Collaborative Law

Andrew A. Bokan, Esq. Shareholder Knott • Ebelini • Hart ABokan@Knott-Law.com

239. 334. 2722 www.knott-familylaw.com

legal briefs Toll Law is proud to introduce its two newest associates, Richard M. Ricciardi, Jr. and Chrisopher G. Cudebec In 1997, Attorney Cudebec received his Bachelor of Arts degree from the University of Florida, and spent the subsequent seven years as a business manager for a large number of academic associations. He then served two years in the Peace Corps as a Community Development volunteer in Albania. He graduated from the University of Florida Levin College of Law in 2010 and was licensed to practice law in the state of Florida that same year.

While his legal background includes real estate and general civil litigation, his primary focus was representing banks in foreclosure matters.

Chrisopher G. Cudbec Richard M. Ricciardi, Jr. A substantial portion of Toll law’s practice is devoted to standing up for debtor’s rights. So, having been on “the other side” of such disputes, Attorney Cudebec can provide keen insight on how the banks operate and make business decisions.

Attorney Ricciardi received his Bachelor of Arts degree from Farleigh Dickinson University in 2006. In 2009, he graduated from Barry University Dwayne O. Andreas School of Law with a Doctor of Jurisprudence/Juris Doctor.

His first job out of law school was as an intern/law clerk at Lusk, Drasites, Tolisano & Smith, P.A. n/k/a Lusk, Drasites & Tolisano, P.A, where Matthew Toll served as his supervisor and mentor. After he became licensed, he worked for the firm now known as Burandt, Adamski & Feichthaler, P.L. where he gained substantial experience in dealing with commercial disputes, real estate matters, and debtor defense.

His legal background includes civil litigation, probate litigation, wills, estate planning and litigation, consumer rights law, real estate litigation and landlord tenant law.

Attorneys Serving South Florida & Beyond CONDO & HOA LAW REAL ESTATE LAW LITIGATION CORPORATE & BUSINESS LAW ESTATE PLANNING & PROBATE BANKING & COMMERCIAL LAW

Naples 8950 Fontana Del Sol Way Suite 100 Naples, FL 34109 P: 239.331.5100 F: 239.331.5101 Fort Myers 2030 McGregor Blvd.

Fort Myers, FL 33901 P: 239.333.2992 F: 239.333.2999 Miami Westside Plaza II 8200 Northwest 33rd Street Suite 303 Miami, FL 33122 P: 786.294.6002

GAD-Law.com Toll Free: 855-331-5100 res gestae | january 2013

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on the bench the hon. tara p. paluck There are some interesting misconceptions about what goes on in the courtroom.

Judge Tara P. Paluck identified this as one of the most prevalent: “Everyone thinks we use a gavel all the time.” She does bring one when she speaks to children about her job as part of Justice Teaching, a Florida Supreme Court initiative to enhance civics and law-related education in the schools. “I don’t think I’ve ever hit a gavel in my courtroom in my entire career.” But Judge Paluck lets the kids pound on it and try on her robe for a couple of pictures.

Elected County Judge in 2006, her passion for the law evolved over time. Once a pre-med student, she decided on a different track and enrolled instead as an American Studies major at Notre Dame with concentrations in Government, Communications and English.

From there, she attended Creighton University School of Law. After a summer internship at the State Attorney’s Office, she discovered that trial work was appealing. Later, she was hired full-time, staying at the SAO for three years. Then, she worked as trial counsel for an insurance company for eight years before opening her own practice.

Today, she finds her job rewarding. “There is a sense of accomplishment when you have done your best to ensure that each side is treated fairly.” She feels her combined experience in criminal law, civil law and acting as a certified Circuit Court Mediator gives her tools to ensure impartiality.

When she’s not on the bench, she spends a lot of time on the soccer and baseball fields with her husband and two boys, ages ten and seven. Since those seasons are over, they are hoping to get some more time to fish on the SWFL waterways. |RG|

“There is a sense of accomplishment when you have done your best to ensure that each side is treated fairly.”

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from the bar charles pt phoenix, Esq. “We find opportunity out of distress and a deal in the thicket,” said Charles Phoenix of his Sanibel-based firm Phoenix, File and & Pagidipati PLLC. It’s a recurring theme.

Growing up in a factory town, he vocally championed a vibrant future for Detroit.

In the 1990s, he wrote a paper called “Downsizing Detroit: A Proactive Approach to Fuel an Urban Vision” for city leaders. He proposed lobbying government for financial considerations, spinning off the outer perimeter into new cities and reinvesting proceeds “to immediately halt decline through an urban lifestyle that outmatched inherently higher crime and taxes.”

Phoenix acknowledges some perceived his paper as radical at the time, but a law school professor active in current struggles recently conveyed that he had in fact been “way ahead of the curve.”

His penchant for reevaluating things with a fresh eye continues. “Like many, we always reinvent the firm to meet the times.” He reflected, “Our difference is a passion to uncover value, whether in business, life or law.”

He’s also reinvented himself along the way, from selling insurance during college, to becoming a tax consultant at Price Waterhouse and Deloitte & Touche, to becoming a contractor and developer during law school. He earned a CPA certificate, his J.D. from Wayne State University Law School, an MBA from The University of Michigan Ross School of Business, and an LLM from The University of Alabama Law School.

After moving to Florida, he said, “that background quickly fit into the exploding corporate and real estate law sectors. I used legal tools to unlock assets and turn setbacks into business opportunities.”

When he’s not working, Phoenix and his wife lead community projects like co-chairing the American Heart Association HeartWalk. He passionately discusses youth baseball, “My boys asked me to coach their team and the smartest thing I ever did was agree.” He said, of course, “We are becoming the absolute best league in the state.” |RG|

• Legal Blogs, Press Releases and E-Newsletters, including Hyperlinks that Increase SEO • Advertising Campaigns and Ad Design

• Media Buys and Placement • Promotional Materials • Logos and Taglines • Business Cards and Letterhead Packages

res gestae | january 2013

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BUSINESS PLANNING ESTATE PLANNING TRUST ADMINISTRATION PROBATE

A solution-oriented practitioner licensed to practice in New York, New Jersey, Connecticut and Florida, with over 24 years experience.

Ms. Pizzolato is committed to establishing long-term relationships with her clients. She is dedicated to analyzing new issues for her clients, guiding them through their decisionmaking process and representing them during the many phases of their lives.

239-225-7911 info@pizzolatolaw.com

7370 College Parkway Suite 314 Fort Myers, FL 33907

PIZZOLATOLAW.COM

We Are Employers’ Lawyers Kunkel Miller & Hament is devoted exclusively to counseling and representing management in employment law, including defense litigation. Alert to the unique labor and employment issues your clients face, each attorney within the firm is able to provide legal counseling and representation in the areas that comprise labor and employment law today.

We welcome consultations with counsel or your clients.

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(800) 828-7133 • www.kmhlaborlaw.com • Defense Litigation • Human Resources Advice • Discrimination & Harassment • Wage & Hour Law • Union Matters • OSHA • Employee Handbooks

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sarasota • tampa • fort myers (Satellite) The hiring of a lawyer is an important decision that should not be based upon advertisements. Before you decide, ask us to send you free written information about our qualifications and experience.

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res gestae | january 2013

www.waterford-centre.com

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10/12/12 9:13 AM

social scene LCBA Holiday Party and YLD Holidays in January Toy Collection

LCBA LRS Coordinator Lee Hillman, Hon. Rad Sturgis, attorney Danielle Liguori, Immediate Past President Karla Campos-Andersen

Hon. Josephine Gagliardi (LCBA Past President 2000)

PAST & PRESENT! Newly-elected LCBA Member-at-Large Kelly Fayer, with LCBA Immediate Past President Karla Campos-Andersen, Past President Marcy L. Shaw (2008), and 2013 LCBA President Mary C. Evans

Mary Beth Myers with Hon. James Adams, attorney Daniel J. Endrizal, III and Wayne Everett

CBA Staffers Lee Hillman and Lisa Poulin, with attorneys Keith Upson (Criminal Law Section Chair) and Christopher Crowley

“Holidays in January” gifts fill the Couch at LCBA Holiday Open House! res gestae | january 2013

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social scene LCBA Luncheon Announcing the New Executive Council

LCBA VP John Agnew, with fellow Annual Sponsors from Henderson Franklin Starnes & Holt, PA, Denis Noah (Managing Partner), Shannon Puopolo, and Carlos Kelly

Lee County Legal Aid Director Kathryn Pugh, with Sarah Martin and Danielle Levy

Mock Trial Chair Renee Binns, with Claudia Volk, Deputy Angelo Vaughn, Annual Sponsor Mike Chionopoulos and Elizabeth Wolt

Regina Toops of Phoenix File & Pagidipati law firm and Sponsor, Brandy Woodson of Westlaw

Absolute Law Sponsor Mike Chionopoulos with Linda Doggett, Lee County Clerk of Court

Professional Retirement Services guest speaker Dan Dearing, with Absolute Law’s attorneys Dari-Nicole Lang and Paul Liles (LCBA President 2007)

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social scene LCBA Luncheon Announcing the New Executive Council

Mary Evans and Karla Campos-Andersen

Attorney Jacqueline Buyze autographs copies of her popular book for children, A Story of Lawyers at Annual Meeting

Attorney Claudia Volk with Deputy Angelo Vaughn

2013 LCBA Executive Council with Immediate Past President Karla Campos-Andersen. L-R: VP John Agnew, Campos-Andersen, President Mary Evans, Member-at-Large Kelly Fayer, Secretary Anne Dalton. Absent: Treasurer Scott Atwood

Mary Evans, Hon. Darryl Casanueva and KeeKee Casanueva with Karla Campos-Andersen

Mary Evans, ready to lead us to “Think Outside the Box!� res gestae | january 2013

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the dish

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res gestae | january 2013

the dish

by Sara Fitzpatrick Comito

One of the largest master-planned communities in the United States, Cape Coral is a labyrinth of canals and often a certain, shall we say, architectural uniformity. If you desire a break from any kind of monotony, whether in your week or your outlook, head over to Brew Babies Garden Bistro for a little refresher. There you will find an oasis of lush plantings, unique décor, rich furnishings, historic architecture, original music and fresh, delicious food.

Located on Lafayette Street, just off Del Prado and Cape Coral Parkway behind the Holiday Inn Express, Brew Babies is a convenient escape. From Fort Myers, it’s an easy dash over the Cape Coral Bridge, and worth the trip. Although not required, reservations are accepted, which is great if you want to scope out a different seating area each time. These include a casual front porch atmosphere perfect for sipping a coffee and enjoying a homemade dessert, or the inner sanctum of the courtyard garden, replete with fountains and garden knick-knacks. One of Brew Babies two historic houses offers a stately dining room featuring private booths perfect for a staff party. The other is an inviting lounge in dark wood, large windows and a red velvet couch.

My companion and I enjoyed a sunny SWFL December afternoon in the garden area, feeling rather like we were in a Spanish courtyard. Although it was late for lunch, regular patrons filtered steadily in and lingered long after their meals, chatting with their congenial host, owner and musician Valerie Elam.

Brew Babies began as a coffee shop. I had occasion to visit during its first year of life to attend a friends’ concert.

I remember coffee, yummy chocolate cake and great music.

That’s the “Brew” part that remains. “Babies” honors the vivacious Baby Boomers in our midst. That caffeinated, musical soul remains, and original, local entertainment can

be enjoyed several nights a week, including performances by Elam’s own band, The Velvet Edge. But my how things have changed! I present to you the evolution of a funky café into an eclectic, casual bistro.

Yes, there is still “mile-high” chocolate cake, which no one would begrudge you ordering first. But also pan seared jumbo scallops, escargot and soft shell crabs among the starters.

Consider the caprese skewers, a play on the standard tomato and fresh mozzarella salad – because isn’t everything more fun on a stick? While the quality and variety of the food says upscale, the presentation is unassuming, showcasing the freshness – and fresh interpretation – that stands on its own.

The tomato bisque is special, with just the right finishing note of sherry. Try it with the tomato and Brie melt on whole grain. The salads are simple and colorful and the dressings are homemade. Also notable is the flatbread pizza. The crust was crunchy yet barely there, and let the sun ripened tomatoes and fresh mozzarella sing. The chicken salad wrap is a lighter version with yogurt-based dressing and tropical dried fruits.

Very refreshing!

Dinner entrees include lobster scampi, pork osso buco and interesting twists like cranberry Thai cod. Burgers, pizzas and sandwiches are available, too, so there’s bound to be something for everyone. Plus, the menu changes frequently, partly to keep the energy fresh in the kitchen. “Anything you do over and over again gets boring,” Elam explained.

She and husband Wayne model the restaurant, situated in two of the first houses in Cape Coral, after the charming and picturesque chef-owned eateries in places like Savannah and Charleston. The two buildings housed early land prospectors, and it’s still the perfect place to prospect for food, atmosphere and entertainment. |RG|

Brew Babies Garden bistro • (239) 542-2224

www.MyBrewBabies.com • 1520 Layfayette Street, Cape Coral Hours: Lunch: Tues. - Sat. 11 am - 3pm • Dinner: Tues. - Sat. 5 pm - 10pm

Sara Fitzpatrick Comito is a freelance writer and assistant editor of the Res Gestae magazine, and a freelance writer for the Naples Daily News. For suggestions or comments on this regular feature, please contact Sara at Sara@ConricHoldings.com.

res gestae | january 2013

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The Ethics Corner

ETHICS UPDATE:

Access Credentials, Gifts to Lawyers and More Pleas

By Jason Hunter Korn The Florida Bar’s Professional Ethics Committee (PEC) recently met for its last regular quarterly meeting in 2012. The PEC is comprised of about 40 lawyers from around the state along with Florida Bar ethics counsel. It is the governing body of the Bar that reviews and issues formal ethical opinions to guide Bar members in their conduct.

The following are highlights of the recent PEC meeting:

• Considered Proposed Advisory Opinion 12-1 Regarding Pleas. The Opinion addressed whether a criminal defense lawyer has a conflict of interest that prevents the lawyer from advising a client to accept a plea offer that requires the client to waive any past or future ineffective assistance of counsel by the lawyer. The Opinion also addressed whether a prosecutor may make an offer that requires the client to waive any past or future ineffective assistance of counsel or prosecutorial misconduct post-conviction claims. The PEC previously invited comment from representatives of the U.S. Attorneys Offices for the Northern, Middle and Southern Districts, as well as the Florida Prosecuting Attorneys Association, the Florida Association of Criminal Defense Attorneys and the Florida Public Defenders Association.

• Consideration Proposed Advisory Opinion 12-2 Regarding Use of a Lawyer’s Access Credentials. The PEC prepared a draft opinion addressing whether lawyers may permit use of their access credentials by non-lawyers (log in name and password) for the filing of court documents using the E-Portal. Previously, the PEC opined that a lawyer may not permit a non-lawyer employee to sign the lawyer’s name (even together with the non-lawyer’s initials) to discovery and notices of hearing. See PEC Opinion 87-11. The PEC was of the opinion that permitting a non-lawyer to sign pleadings would be assisting in the unlicensed practice of law.

However, in proposed Opinion 12-2 the PEC determined that a “properly supervised non-lawyer may use the credentials of a lawyer to file documents of the E-Portal at that lawyer’s direction.” It opined that “such a task is akin to a non-lawyer transporting a properly prepared and signed pleading to the clerk’s office and physically filing it, which is a ministerial task that may be properly delegated.”

Please note that the Opinion cautioned that lawyers will remain responsible for the non-lawyer’s conduct and must properly supervise the non-lawyer. Opinion 12-2 is specifically limited to filing documents via the E-Portal and does not address issues of electronic signing of pleadings.

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• Consideration of Request from RPPTL Section on Potential Legislation to Void Certain Gifts to Lawyers. It appears that legislation is on the horizon addressing the scenario of lawyers preparing instruments that convey gifts to the lawyer – especially when the lawyer and client have no familial relationship. The PEC voted to take no position on this potential legislation as it was not within its jurisdiction to provide such an advisory opinion or “position statement” on such potential legislation. Nevertheless, lawyers should be aware of this potential issue.

• Consideration (Again) of Proposed Advisory Opinion 12-1 Regarding Pleas. The inquirer sought advice as to whether a criminal defense lawyer has a conflict of interest that prevents the lawyer from advising a client to accept a plea offer that involves the client waiving any “past or future ineffective assistance of counsel” by that same lawyer.

The inquiry also addressed whether a prosecutor may make such an offer or includes the waiver of prosecutorial misconduct post-conviction claims in an offer. At the PEC’s June meeting, this issue was deferred to September at the request of the U.S. Attorney’s Office.

After much discussion, the PEC approved the formal advisory opinion as written. The opinion concluded that a criminal defense lawyer has a personal conflict of interest when advising the client whether to waive later collateral proceedings. In addition, the opinion determined that a prosecutor may not make such an offer or include in an offer the waiver of any prosecutorial misconduct post-conviction claims. The conduct is prejudicial to the administration of justice.

• Consideration of Ethics Inquiry 31513 Regarding Trust Account Funds. The inquiry involved application of new section of 626.8473, Florida Statutes, which requires lawyers acting as real estate and settlement agents to hold real estate transaction funds in a separate trust account, allowing auditing by title insurers. Speakers from title companies, including The Fund and Old Republic, provided presentations regarding the new application and a need

for auditing. However, the PEC is concerned about issues of confidentiality and privilege. This matter was tabled to permit further review until the next meeting.

• Consideration of Draft Proposed Advisory Opinion 12-3 on Cloud Computing. The PEC is working on a draft opinion addressing the ethical issues arising from Cloud computing.

Other state bars have issued opinions involving the new technologies of “cloud” storage in the course of providing legal services. This opinion will be addressed at the January meeting.

The Ethics Korner focuses on various ethical issues, pertinent ethical opinions and decisions issued at meetings of The Florida Bar’s Professional Ethics Committee (PEC). The author, Jason Korn, is an attorney, shareholder and Managing Director of the Florida office of Cohen & Grigsby. He is a member of the Litigation, Construction and Shareholder and Partnership Dispute Practice Groups of the firm. He is also a member of the PEC, having served on the Committee for two terms from 1999 to 2005, and reappointed again in 2008, with his current term extending to 2014. |RG|

Next Meeting

The next meeting of the PEC will be held on January 25, 2013 in West Palm Beach.

Meetings are open to the public and press.

is pleased to announce

Doris M. Del-Castillo Garcia has joined the Firm in our Sarasota office as an Associate Mrs. Garcia has expertise in labor and employment law.

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AV Rated Attorney FL Real Estate Broker’s License Real Estate ~ Probate Business and Contract Disputes Title Insurance Agent 30+ Years Experience Ph. 239.275.5005 ~ Tom.Moorey@gmail.com 1430 Royal Palm Square Blvd., Ste. 105, Fort Myers, Fl 33919 res gestae | january 2013

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Get Hooked on Some Healthy Competition Lee County Mock Trial Promises Leaning, Fun and Fond Memories

by Sara Fitzpatrick Comito “Addictive.” That’s how Renee Binns describes her involvement in the Lee County Mock Trial Competition. The family law attorney started as a scoring judge when she worked in Orlando back in 2005, and has been hooked ever since.

When Christine Wright stepped down as LCBA chair for the competition, Binns inherited the task. “Over time, I think it has become my niche in this town.”

The high school teams are presented with a fictitious case, either a criminal or civil action by the Florida Law Related Education Association. Every competition in the state of Florida works from the same case materials. It consists of opening statements, closing arguments and direct/cross examination of witnesses. There are three attorneys and three witnesses per team. Each team competes four times, twice each as prosecution and defense. The presiding judge rules on objections. Scoring judges evaluate each participant on the team. There is a time restriction for each element of the trial and afterwards, the judge and scoring attorneys give the students a brief critique of their performance, which gives the students an opportunity to improve each round.

The event starts this month, but preparation began months ago. Binns said, “Individual attorneys volunteer a significant amount of time with their respective teams to teach them how to run a trial, present evidence, examine witnesses and handle objections.”

She identified volunteer recruitment as a constant challenge from year to year, since it’s such a large program with a great many teams participating. “As always, we need 60 to 70 judges and lawyers to score the rounds.” Along with

Call Today to Advertise in Res Gestae’s February Edition Contact Linda or Sue at 239.690.9840 email: resgestae@leebar.org 38

res gestae | january 2013

time, comes funding. “We always need operational money and contributions towards the State Competition when the Lee County team wins the circuit competition.” This year, however, there is another great challenge: space. “Due to construction at the courthouse, we need, more than ever, sitting judges to serve as presiding judges – this way we get to use their courtroom!” The intrinsic rewards of participating are always worthy incentives. Consider last year: “The Ida Baker students added so much energy during the County Competition Awards Ceremony,” Binns recalled.

She said the fun – and funny – memories are the icing on the cake. “I think the best was when the teacher coach from Cape High learned that one of the students from Ida Baker – who is an excellent witness – wasn’t a senior, but a junior. She just slumped into her seat and exclaimed ‘Oh, Crap!’ Every student from every team was present and heard it!”

You don’t want to miss out on that kind of moment, right? Think how much fun it would be to help a local team excel in the county competition, then head to the circuit level, and maybe state. National? With your help, anything is possible. There is still time to get involved, and always a great need. Do the kids right and call or email Renee Binns at (239) 210-2112 or rbfamilylaw@gmail.com. |RG|

SAVING MONEY ON YOUR LAB WORK FOR THE UNDER INSURED!

CALL: (239) 931-1036

or STOP by our office located on the corner of Colonial and Fowler, by Old Time Pottery!

4350 Fowler Street, Ste. 2 Fort Myers, FL 33901

Written by Guest Columnist, John Grey As we grow older, many of us finally decide to start paying more attention to our lifestyle choices as we try to fight off aging while improving our health, fitness and longevity.

There is a high percentage of people who often don’t feel well and complain of aches and pains they likely attribute to anything but the real culprit—food intolerance. However, there is one helpful tool out there that has drastically changed how people look and feel and has allowed them to start enjoying the rest of their lives.

There is a special test that determines a client’s sensitivity and intolerance to up to 350 types of foods, chemicals and herbs - the ALCAT Test. The ALCAT Test has been available for more than 25 years, and although it is not an allergy test, it has helped clients reduce health problems and has improved numerous lives for a quarter of a century, and it’s the most effective and comprehensive sensitivity/intolerance analysis used today.

This blood-drawn test identifies cellular (inflammatory) reactions to foods that have been linked to chronic obesity, diabetes, and skin, heart, joint, digestive and auto-immunity disorders. Food intolerance often induces chronic activation of the immune system, which can lead to common problems such as migraines, fatigue, hyperactivity and asthma.

(Food allergies occur in a small portion of the population, and the effects appear soon after ingestion and are more dramatic than food intolerance symptoms.)

Once you’ve been tested, you can expect to have your results within a week. The results are presented in a simple, color-coded format that lists your severe, moderate and mild food incompatibilities. Your “safe” foods are also clearly marked.

Your test results include a varied, customized, 4-day diet called a “Rotation Plan.” The plan allows your system to not become sensitized to certain foods, thus avoiding an “overload” effect. (For an additional fee, you may order a customized meal plan with recipes that are healthy, nutritious and easy to prepare. This will help you recognize hidden sources of your “offending” foods and find suitable substitutes for the foods you are replacing.

The test also comes with a guide that explains the format of your results and rotation plan, and a glossary to help you interpret your results. Detailed Candida, gluten and casein test results, as well as nutritional information, food preparation and cooking tips are also included. You’ll also receive a free, wallet-sized results card for your convenience.

Studies have shown that 98% of clients who adjusted their eating habits based on the ALCAT reported significant improvements in their weight and body composition.

A number of tested professional athletes swear by the physical improvements they’ve experienced thanks to their “personalized eating” program. They feel less fatigued because their bodies are no longer instructing them to rest because of the chronic inflammation caused by their food intolerance. They’re more energetic, which means they’re more productive and positive about their lives.

Diet is crucial when you are protecting yourself from degenerative diseases and premature aging. The ALCAT is a worthwhile investment to keep harmful “toxins” out of your system and to start you on a path of healthy, happy living that you should want and that you deserve.

Taking the ALCAT is the first step to finding “optimal wellness through customized nutrition,” and it’s an important step to improving the best years of your life—which are happening right now.

To find out more about how you can benefit from the ALCAT, contact ARCpoint Labs of Fort Myers at (239) 567-5505 or visit http://www.arcpointlabs.com. |RG| 39 res gestae | january 2013

calendar of events

january 2013

1 5 12

New year’s day: court observed holiday. lcba office closed Young Lawyers Division: Holidays in January 9:30am - Noon. Annual event for foster care children held at the Imaginarium.

once upon a new moon iii - bench bar gala 6 pm at Harborside Event Center. $100 Tickets and Sponsorships

on sale at our website, www.leebar.org Sponsors at press time: Full Moon: Absolute Law; Music Sponsor: Associates & Bruce L. Scheiner; Half Moon: Henderson Franklin Starnes & Holt, PA; West A Thomson Reuters business

16

17 & 18 Lee County mock trials Chair: Renee Binns. Sponsorships and volunteers still needed!

16th & 17th at Lee County Justice Center; Final Round 18th at Lee County School District headquarters.

Sponsors: Associates & Bruce L. Scheiner, PA; Henderson Franklin Starnes & Holt, PA; Law Office of Miguel C. Fernandez, II; Law Office of Karla Y. Campos-Andersen

17

family law practice section brown bag luncheon and CLE Noon. Location TBA. “Confidentiality in the Courts in the Electronic Age.”

20

free softball tournament benefit for lee county mock trial Hammond Stadium / Lee County Sports Complex Watch your

next e-blast “News You Can Use” for details on how to support Mock Trial by going out to the ball game!

21 23 24 25

martin luther king, jr. day court observed holiday. lcba office closed executive council meeting 5:15 pm. Mary Evans’ Law Office. Practice Section and Committee reports due. Send in advnace to admin@leebar.org

third thursday social 5:00 - 7:00 pm. Watch for details by email.

Membership Luncheon 11:45 – 1 at Royal Palm Yacht Club, 2360 West First Street, Fort

Myers. SPECIAL RATE of $10 for LCBA members and $15 for Non Members. Bring your staff! Sponsors: CopyLady, West - a Thomson Reuters business

25 31

Young Lawyers Division lunch meeting John Miller, Chair. Noon at French Connection LAND AND GOVERNMENTAL LAW PRACTICE SECTION LUNCHEON MEETING Russell Schropp, Chair. Noon. Location TBA

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FEBRUARY 2013

14

& 15 20TH CIRCUIT MOCK TRIAL Sponsors: Associates & Bruce L. Scheiner, PA; Henderson Franklin

21 22

Starnes & Holt, PA; Law Office of Miguel C. Fernandez, II

THIRD THURSDAY SOCIAL 5 - 7 PM. Location: TBD Membership Luncheon Honoring our Past Presidents. 11:45 – 1 at Royal Palm Yacht Club,

27

2360 West First Street, Fort Myers. Debut of our Lee County Bar Association History in the Making DVD. Sponsors: Patrick Von Ahn of Fort Myers Interactive; Henderson Franklin Starnes & Holt, PA; Strayhorn & Persons, PA

executive council meeting 5:15 pm. Mary Evans’ Law Office. Practice Section and Committee reports due. Send in advance to admin@leebar.org

28

LAND AND GOVERNMENTAL LAW PRACTICE SECTION LUNCHEON MEETING Russell Schropp, Chair. Noon. Location TBA

march 2013

7 16 26 27

8 & 9 State mock trial

judge lundy’s bar-b-q Sponsors: CopyLady; Henderson Franklin Starnes & Holt, PA passover - lcba office closed

executive council meeting 5:15 pm. Mary Evans’ Law Office. Practice Section and Committee reports due. Send in advance to admin@leebar.org

28 29

LAND AND GOVERNMENTAL LAW PRACTICE SECTION LUNCHEON MEETING Russell Schropp, Chair. Noon. Location TBA good friday - lcba office closed

Would You Like to Submit an Event?

Email your event submission to resgestae@leebar.org

Congratulations to the Members of the Lee County Bar Association’s

100 Club Aloia Roland & Lubell, LLP Andrew S. Epstein, P.A. Arend & Sisk, P.A. Bonita Springs City Attorney’s Office Costello Royston & Wicker, P.A. Boyle Gentile Leonard & Crockett P.A. Bruno & Prado, PLLC Burandt, Adamski & Feichthaler, P.L. Calvo & Calvo Coleman & Coleman Engvalson & Associates, P.A. Fowler White Boggs, P.A. Freidin • Dobrinsky Fried & Fried, P.A. Geraghty, Dougherty, Edwards, P.A. Green, Schoenfeld & Kyle, LLP Goetz & Goetz Goldberg, Racila, D’Alessandro & Noone, LLC Goldstein, Buckley, Cechman, Rice & Purtz, P.A. Grace Crawford Hahn Loeser & Parks LLP Henderson, Franklin, Starnes & Holt, P.A. Hersch, Kinsey & Hill, P.A. Joseph R. Gaeta, P.A. The Law Offices of Kevin F. Jursinski, P.A.

Knott Ebelini Hart Kushner & Kushner Lee County Legal Aid Society, Inc. Luis E. Insignares, Attorneys at Law The Livingston Law Firm Martin Law Firm, P.L. The Law Firm of Scott T. Moorey Neaher & Teuber, PL Norma Hand Brill, P.A. North Law Firm, P.A. The O’Brien Law Firm O’Halloran & O’Halloran, Attorneys at Law Osterhout & McKinney, P.A. Parvey & Frankel Prather and Swank, P.A. Andre J. Patrone, P.A. Pavese Law Firm Phoenix Law Partners, P.A. Rubinstein & Holz, P.A. Sheppard, Brett, Stewart, Spivey Law Firm, Personal Injury Attorneys PA Steinberg & Linn, P.A. Strayhorn and Persons, P.L. Thompson Family Law, P.A. Toll Law Viles & Beckman, LLC Webb & Scarmozzino, P.A. Weldon & Rothman, P.L. The Wilbur Smith Law Firm, PLLC Yeslow & Koeppel, P.A.

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

res gestae | january 2013

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Referral Fees Paid Many businesses that did not know they could make a claim are now included in the proposed BP Oil Spill Settlement.

Your clients may qualify for compensation, even if their business is located in town and not on the beach. Businesses may include: Gasoline Stations Sporting Goods Stores Department Stores Gift and Souvenir Stores Taxi Services Restaurants

Airport Operations Tour Operators Travel Services Museums Salons & Spas Historical Sites

Retail Stores Zoos and Gardens Hotels and Motels Bed and Breakfast Inns Snack Bars Local Attractions

res gestae

prsrt std u.s. postage

paid

ft. myers, fl permit no. 147

P.O. box 1387 | fort myers, fl 33902-1387 (239) 334-0047 | Fax (239) 334-0523 www.leebar.org

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