SFLG-MHBM September 25 2017

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Haliczer, Pettis & Schwamm, P.A.: The Plaintiff’s Firm That Understands the Defense

Also: Handling Your Legal Challenges www.sflegalguide.com




South Florida Is Known for Legal Leadership South Florida Legal Guide congratulates trial attorney Hilarie Bass, co-president of Greenberg Traurig LLP, on assuming the presidency of the American Bar Association (ABA) at its annual meeting in New York. “Never before has there been a more urgent need for the American Bar Association to lead the way toward needed changes in the profession and to educate our citizens about the rule of law,” Bass said at the August meeting, “We will focus on issues that go to the core of our profession: how we provide access to justice, educate law students, and serve our clients.” Seven years ago, another Miami attorney was also chosen to lead the 400,000-member ABA. In 2010, Steve Zack, a partner at Boies Schiller Flexner LLP and a board-certified trial lawyer, became the first Hispanic American to assume the ABA

presidency. These two ABA presidents are among the many South Florida lawyers who are contributing to their profession and community, while serving as effective advocates for their clients. Bass and Zack are also members of the select group of 53 highly experienced Distinguished Attorneys that we have profiled in our annual publication in the past few years. It is always a challenge to select just a handful of our Top Lawyers for this recognition, because there is such a deep

pool of legal talent in our region. There are dozens of dedicated South Florida attorneys who have served as leaders of The Florida Bar and the bar associations in Miami-Dade, Broward and Palm Beach counties. A good example is Eugene Pettis, co-founder of Haliczer, Pettis & Schwamm P.A., and another of our Distinguished Attorneys. Virtually every one of our Top Lawyers is involved with civic or charitable organizations that give something back to our community, and donate many hours of

“Never before has there been a more urgent need for the American Bar Association to lead the way toward needed changes in the profession and to educate our citizens about the rule of law, We will focus on issues that go to the core of our profession: how we provide access to justice, educate law students, and serve our clients.” — Hilarie Bass

their professional time to pro bono work. In keeping with that spirit of contributing to others, South Florida Legal Guide has asked five experienced attorneys to provide their general advice on handling common legal questions related to their areas of practice. We hope that their responses will provide a helpful starting point if you face a similar challenge now or in the future. As we enter the start of a new business year in September, South Florida Legal Guide will continue to reach out to attorneys, accountants, bankers and other professionals who can provide insights into important trends affecting our region, as well as practical advice you can apply in your business or daily life. Stay tuned to our channel!


Richard Westlund Editor

PUBLISHER JACOB SAFDEYE EDITOR IN CHIEF RICHARD WESTLUND GUEST CONTRIBUTORS STANLEY I. FOODMAN ANDREW C. HALL STEPHEN C. LANDE MATHEW P. LETO SOUTH FLORIDA LEGAL GUIDE - BM Volume 1, Number 5, 2017 This is an independent supplement by South Florida Legal Guide Mailing address P.O. Box 630428, Miami, FL 33163. All rights reserved. All titles registered and may not be used without permission. Reproduction in whole or in part of any text, photograph or illustration without written permission of the publisher is strictly prohibited. The South Florida Legal Guide makes no guarantee regarding the accuracy of information presented, results reported, or safety of products or activities described herein. The publisher notifies readers that the hiring of a professional is an important decision that should not be based solely on advertisements. Before you decide, ask the professional to send you free written information about qualifications and experience. Contact: info@sflegalguide.com or call: (786) 879-7638 • www.sflegalguide.com






Lawyers often have opportunities to enter into a business arrangement with a client. Bad opportunities are easy. Don’t invest. But when potentially good investments present themselves, what is a lawyer obliged to do? As a lawyer, we must always look beyond positive financial benefits. Simply saying yes can expose a lawyer to malpractice claims, the voiding of the investment, and Florida Bar sanctions. The Florida Supreme Court in The Florida Bar v. Kramer acknowledged that “[b]usiness dealings between lawyers and clients are fraught with conflict-of-interest problems

[and] [h]uman nature makes such conflicts virtually inevitable notwithstanding a lawyer's good intentions.” To minimize problems that arise in this situation, Florida Bar Rule 4-1.8 provides the standard that a lawyer must follow when considering a business opportunity with a client. To satisfy the rule, each necessary step must be documented in writing. First, the lawyer must ensure that the terms of the transaction are fair and reasonable to the client. Second, the client must be advised to engage independent legal counsel for the transaction. Finally, the client must provide

informed consent. While the requirements of this rule may seem somewhat onerous, compliance not only protects the client, but also the lawyer. Imagine, for example, that a lawsuit takes a negative turn and leads to a fractured attorney-client relationship. The client’s dissatisfaction will almost certainly spill over into the business relationship. That dissatisfaction may result in claims by the client that the lawyer used his or her position to overreach and create an unfair business relationship. Florida law provides that a lawyer has a fiduciary obligation to always protect their client’s interests. Because that

obligation exists, “the measure of good faith which an attorney must exercise in such transactions is much higher than is required in business dealings where the parties trade at arm’s length.” Waldeck v. Marks, 328 So. 2d 490, 493 (Fla. 3d DCA 1976). Without written proof that a client was provided the opportunity to obtain independent legal advice, this burden becomes impossible to meet and the business agreement will be deemed unenforceable. See e.g. Mursten v. Caporella, 619 Fed. Appx. 832 (11th Cir. 2015). Beyond the loss of the business arrangement, The Florida Bar has not hesitat-


Taxpayer, Was Your Conduct Non-willful? BY STANLEY I. FOODMAN

U.S. taxpayers that have inadvertently failed to report reportable foreign financial assets and income may have the option of the Streamlined Filing Compliance Procedures (Streamlined). The Streamlined Procedures are only available to U.S. taxpayers that have acted non-willfully that have failed to report reportable foreign financial assets and pay all the taxes due with respect to those assets. The individuals and estates cannot be under IRS examination, and they both must have a valid tax identification number.

Individual taxpayers or estates using Streamlined Procedures must be able to certify that their failures to report are related to non-willful conduct. According to IRS: "Non-Willful conduct is conduct that is due to negligence, inadvertence, or mistake or conduct that is the result of a good faith misunderstanding of the requirements of the law". “Willful is voluntary, conscious, and intentional.” The certification of non-willful conduct to IRS is a written statement signed under penalties of perjury. It certifies the non-will-

ful conduct of the taxpayer with respect to all reportable foreign activities and assets. IRS provides the following guidance to taxpayers with respect to the explanation of non-willful conduct: • Provide specific reasons and background for the failure to report all income, pay all tax, and submit all required information returns, including FBARs. • Include the whole story including the unfavorable and favorable facts. Include personal background, financial background, and anything else relevant to the

STANLEY I. FOODMAN failure to report all income, pay all tax, and submit all required information returns, including FBARs. • Explanation of the source of funds in all the foreign financial accounts/ assets. For example, explain whether the accounts/assets were inherited, whether the accounts/assets were opened while residing in a foreign country, or whether there



ed to sanction lawyers who violated the rule. The Florida Bar v. Doherty, 94 So. 3d 443 (Fla. 2012); The Florida Bar v. Kramer, 593 So. 2d 1040 (Fla. 1992). This does not mean a lawyer should automatically refuse to engage in a business relationship with a client. Rather, a lawyer must always be cognizant of his or her professional responsibility to the client and understand that the

attorney-client relationship must always be prioritized.

was a business reason to open or use it. • Explanation of the taxpayer’s contacts with the account/asset including withdrawals, deposits, and investment/management decisions. Provide a complete story about the foreign financial account/asset. IRS acknowledges that common situations for taxpayers are that they: • Failed to disclose their financial interest in or signature authority over a reportable foreign financial account on Form 1040, Schedule B. • Realized that they owned or controlled a foreign entity (e.g., corporation, trust, partnership, IBC, etc.) and failed to properly disclose reportable ownership and/or control of the entity or transactions with

the foreign entity. • Relied on a professional advisor. IRS states that there are taxpayers that need protection from criminal prosecution because their reporting failures have been non-willful. The Streamlined Program is designed to assist taxpayers with coming into compliance, and remedy their past mistakes. Its purpose is to provide taxpayers with an option for becoming and remaining compliant. Don’t be a victim of your own making. Consult your tax specialist now.

Andrew C. Hall is the founder and managing partner and Matthew P. Leto is a partner of Hall, Lamb, Hall & Leto, P.A., a Miami-based law firm specializing in complex corporate, business, and securities litigation. The firm can be contacted at 2665 S. Bayshore Dr., PH 1, Miami, FL 33133 (305) 3745030, www.hlhlawfirm.com

Foodman CPAs and Advisors, 1201 Brickell Avenue, Suite 610, Miami, FL 33131, (305) 365-1111, www.foodmanpa.com, info@foodmanpa.com.





HALICZER, PETTIS & SCHWAMM, P.A.: THE PLAINTIFF’S FIRM THAT UNDERSTANDS THE DEFENSE After decades of defending insurance companies, Haliczer, Pettis & Schwamm P.A. is switching sides. “We are refocusing our medical malpractice and personal injury litigation to the plaintiff’s side,” said James Haliczer, managing partner. “There’s no one better suited to advocate for plaintiffs than a firm with top-tier litigators who have successfully defended and investigated thousands of medical malpractice and personal injury cases.” Founded by partners Haliczer, Eugene Pettis, and Richard Schwamm in 1996, the firm’s legal team has handled cases involving medical mistakes and other forms of negligence through the years, including a growing number of lawsuits by victims and their families. Most cases are handled on a contingency basis so there is no fee unless the firm recovers funds for its clients. “Given the tumultuous state of healthcare in America, we have collectively decided to switch sides to help those who need it most,” said Pettis, adding that the firm’s medical malpractice experience is an important consideration in personal injury cases as well. “If


someone is injured in a car accident, or trips and has a serious fall while shopping, an attorney who knows about medicine can connect the dots in the case for a jury, potentially leading to a higher award or settlement,” he said. With offices in Fort Lauderdale and Orlando, the firm has served clients from Pensacola to Key West. “We have obtained many $1 million-plus settlements and awards for individual clients,” said Schwamm, who leads the firm’s Orlando office. “We prefer helping a family that's lost a loved one or an individual who has suffered a permanent injury rather than defending these cases. With our strong team in place, we intend to continue delivering outstanding results for our clients.”

DECADES OF LITIGATION EXPERIENCE The firm’s three co-founders bring decades of litigation experience to every case. “We understand the defense strategies in malpractice and personal injury cases,” said Haliczer, who earned his law degree from Stetson University in 1981 and has been practicing in South Florida since 1982.

EUGENE PETTIS, JAMES HALICZER AND RICHARD SCHWAMM “Incorporating that knowledge into our plaintiff’s practice provides an added value to our clients.” Haliczer has been involved in dozens of trials involving numerous medical and legal malpractice, personal injury, wrongful death, commercial and construction litigation. He was named 2015 Miami “Lawyer of the Year” in medical malpractice law by Best Lawyers in America®. A member of the American Board of Trial Advocacy, Haliczer has lectured throughout the country on malpractice, general insurance law and risk management/quality

assurance programs. Pettis is a native of Fort Lauderdale, who has been practicing law since 1985. “My mom thought I should be a lawyer because I talked so much,” he said. After earning a bachelor’s degree in political science, he graduated from the University of Florida’s Levin College of Law in 1985. “On my first day as a lawyer, I was in a trial in a case involving a brain-damaged baby,” he said. “Since then, I’ve tried nearly 100 medical malpractice and personal injury cases.” Pettis was recognized as a Distinguished Attorney

by the South Florida Legal Guide in its 2011 edition. Two years later, he became the first African-American to serve as president of The Florida Bar, demonstrating his leadership abilities and his passion for giving back to his profession and his community. A member of the American Board of Trial Advocates, Pettis was recognized in 2013 as The Trial Lawyer of the Year by the board’s Fort Lauderdale chapter. He was named 2017 “Lawyer of the Year” by The Best Lawyers in America® for his work in plaintiff medical malpractice.

A native of New York who was raised in South Florida, Schwamm knew he wanted to be an attorney at an early age. He overcame a long-time stutter and lisp and then excelled in high school mock trial competitions before earning his law degree from Stetson University in 1991. Today, Schwamm is a nationally recognized litigator and speaker in the area of medical malpractice litigation, including significant injury cases affecting families. “I am





Advice on Handling Your Legal Challenges Editor’s Note: Business executives, professionals, real estate owners and tenants, as well as other South Floridians, may face a variety of legal challenges. South Florida Legal Guide contacted five experienced attorneys to provide general guidance in handling issues related to their areas of practice. Please note that the following questions and responses are educational in nature and should not be considered legal advice. Before you decide to hire an attorney, please review the professional’s qualifications and experience.

BUSINESS LITIGATION Q. I am a business owner and one of my customers has broken a contract with our company. I want to file a lawsuit to collect my money, and wondered what should I do? By Jacqueline Howe A good starting point is to look at the terms of your contract. Does it specify the terms of payment and what happens if one of the parties defaults on the agreement? Business owners live and die by their contracts, so you should take the time to draft agreements that clearly outline the responsibilities on both sides. Next, you should look at the amount of money

at stake. You might find it easier to reach a compromise on a $5,000 debt than a $500,000 breach of the contract, because the amount at risk is lower. Assess your relationship with the customer at this point. Are you still talking with each other? If so, an experienced attorney can coach you through an informal negotiation process. An attorney can also help you craft a settlement agreement to resolve the matter without litigation. If the customer is not talking with you, the first step would be to write a strongly worded demand letter, drafted with the help of your attorney. The letter should give the other party a certain number of days to comply with the terms of the contract. Otherwise, you will be filing a complaint with the court. About 50 percent of the time a demand letter will generate a response. It may lead to a conversation that can result in a settlement, but if not you will have a better understanding of your customer’s position. If there is no response to your letter or if subsequent discussions break down, then you need to be prepared to file a lawsuit. However, that complaint must be based on the written word, not any oral agreements or understandings. So, be sure that you have lived

JACQUELINE HOWE up to your side of the agreement. You should also think about your tolerance for pain and risk. Litigation is an expensive process that will take time away from your business and family. You will also have to deal with an extended period of legal pressure from your former customer, as well as statements designed to damage your reputation or force you into dropping the case. And there is no guarantee that when you finally meet in a courtroom that you will emerge as the victor. You could be 100 percent right, and still lose your case. That’s why I believe that litigation should be the last resort to settle a dispute, rather than your first choice. Jacqueline Howe is a partner in the Fort Lauderdale office of Shutts & Bowen, and a member of the Business Litigation Practice Group.


PROBATE LITIGATION Q. My mother died a few months ago, and the personal representative of her estate, who is one of my siblings, won’t let me see her will. What should I do? By Carmen Alpizar Hellman Generally, if you are a beneficiary and your relative is not being cooperative, you should get advice from a qualified probate lawyer. You have to comply with certain rules, statutes and deadlines; otherwise, you waive your rights. For instance, contesting a will has to be done within a certain time frame. The first step is to get information about the estate, including a copy of the will, any trust, or “separate writing” for personal property such as jewelry or other heirlooms. Find out if your mother had an estate planning lawyer

IVELISSE BERIO LEBEAU to help her draw up the documents. If the will has been filed in probate court, a beneficiary is entitled to a copy of the documents, including an inventory of all the assets. Start with a formal letter from a lawyer to the personal representative. If you get no response, then you can file a petition with the court for that information. Once you see the documents, if you and the other heirs are satisfied with the terms of the documents, the estate can be administered by the court and funds or other assets will be distributed when the case has been fully administered. But if you are unhappy about the terms of the will, try to remain level-headed and focus on your financial goal. Don’t let old emotional issues between siblings escalate to the point of litigation. Lawsuits are expensive and can rip family members apart.

In Florida, the parties in contested probate matters are required to attend a court-ordered mediation before going to trial. In many cases, that process can lead to a settlement among the heirs before going to trial. However, there may be a dispute over competing wills, such as one signed recently that changes the provisions of any older will. In that case, it’s important to file a petition to contest the will and notify other relatives or interested parties of the situation. At that point, you should sit down with an experienced lawyer and weigh the likelihood of success if you go all the way to trial. Remember that even if a lawsuit has been filed, you can always settle the issues, either informally through a family conference or formally at mediation and having the lawyers draft a compromise agreement which is signed by the parties. My advice is to put your personal feelings aside, and look at the facts. Don’t spend your inheritance money on attorneys unless that is truly the last resort. Carmen Alpizar Hellman, is an attorney and certified mediator with Carmen Alpizar Hellman, P.A. She focuses her practice on probate administration, litigation and mediation.

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Advice on Handling Your Legal Challenges • CONTINUED FROM PAGE 5

EMPLOYMENT LAW Q: I participate in my employer’s 401(k) plan and contribute through payroll deductions. When I check my account, however, my contributions are usually deposited months after they were withheld from my paycheck. Is that legal? By Ivelisse Berio LeBeau No, it’s not. Employers are required to transfer your contributions fairly quickly and can be personally liable if they don’t. Employers often sponsor 401(k) plans and contribute towards an employee’s retirement savings account; employees can typically save for their retirement by authorizing pre-tax payroll deductions to their accounts. A 401(k) plan provides a valuable employee benefit with tax savings for both employers and employees. The Employee Retirement Income Security Act, (ERISA) governs pretty much all private sector employee benefit plans, including traditional pension plans and health plans, and imposes strict requirements for their design and operation. Any person who exercises authority or control over a plan’s assets is likely a fiduciary to the plan with fiduciary duties, as is any person who has


or exercises discretionary control or authority in the management or administration of a plan, regardless of the person’s job title, whether he knows it or not. Persons with fiduciary duties to an ERISA plan can be held personally liable if they breach their fiduciary duties to a plan. Failing to timely transfer employee contributions to an ERISA plan is a breach of fiduciary duty. Amounts withheld from employee paychecks must be transferred to a plan as soon as possible, typically within a month. Unpaid employee contributions are considered assets of the benefit plan, not the employer, if they are not timely transferred to a plan. A person who fails to timely transfer such amounts has likely breached his fiduciary duties and can be held personally liable to the plan to make good any losses. If you’re concerned that your contributions aren’t being properly managed you can file a complaint with the U.S. Department of Labor (DOL), Employee Benefits Security Administration (EBSA), which has an office in Plantation. EBSA frequently audits employee benefit plans and determines whether employee contributions are being timely transferred. If you’re an employer wondering if you’re following legal requirements, or if you want to learn more about your ERISA fiducia-

ry duties, EBSA has fiduciary compliance guidance on its website. Employees and employers can also consult an attorney with knowledge of employee benefits law. Employees can sue for breach of fiduciary duty if a plan’s fiduciary fails to timely transfer employee contributions withheld from wages, and employers may be eligible to participate in a voluntary fiduciary correction program if they’ve failed to meet required standards. Ivelisse Berio LeBeau is a partner at Sugarman & Susskind who focuses her practice on employee benefits law.

FAMILY LAW Q. Child support is ruining me. What should I do? By Laura Davis Smith Under Florida law, both parents are financially responsible for the support of their child, and in divorce or paternity scenarios there will be a court order establishing that responsibility. Child support can often seem like an enormous burden, and, when a party has to pay that support to a former spouse or partner, it can feel like a monthly punishment. Raising a child is certainly one of the most expensive endeavors a person can under-



take, and it is only more complicated in divorce or paternity matters. Child support is determined based on Child Support Guidelines (CSG), and the income of both parents is plugged into a worksheet, then certain allowable deductions from income are added to arrive at a net monthly number for each parent, representing their respective available incomes for child support purposes. There are certain expenses that are credited to the party paying them directly, like health insurance for the child, or certain child care expenses. The CSG has a chart that sets forth the base amount of support for the combined monthly available incomes of the two parents, and for the number of children they have in common. For example, in a family where the combined monthly available income is $6,000, and there are three children, the base

support amount for those three children is $2,175. If the same parties earning $6,000 monthly had only two children, the base support amount would be $1,737. Yes, child support is often the largest portion of one’s financial commitments, and it is the most important investment a parent can make. But, because it can truly feel like an anchor dragging one down, remember that child support has an end, and there are ways to modify it if the circumstances warrant. 1. Child support is modifiable at any time if there is a substantial change in the financial circumstances. By statute, if the financial circumstances have changed so that the amount to be paid pursuant to the CSG would change by 15% or $50 or more (whichever is greater), a request for modification of child support may be made.

2. If you are subject to a child support order and your child is soon to emancipate, make sure to review the order and see if there are any steps you should take to insure that the support obligation ends when it is supposed to. 3. If you are the health insurance provider for the child or children, and your premium increases, check the CSG to see if you should have your support adjusted accordingly. 4. If the timesharing arrangement changes, and you are spending more overnights with your child or children than when the initial support amount was determined, you should review the guidelines to see if a modification would be appropriate. In closing, modification of child support in Florida is possible if you can prove a substantial change in circumstances, at any time during a child’s minority. A word of caution, though: unless you have been granted a modification, it is important to consistently pay your court ordered support to prevent a finding of contempt against you, which can cause greater pain than the monthly child support payments do! Laura Davis Smith is a board certified specialist in marital and family law and a partner at Greene Smith & Associates, P.A. in Coral Gables.


EMINENT DOMAIN By Mark A. Tobin Q. The government wants to take my property through eminent domain. What should I do? Both the U.S. and the Florida constitutions put limits on the government power of eminent domain. Basically, private property can only be taken if necessary for a valid public purpose and with due process of law afforded for all. In Florida, the owner must receive “full compensation” so as not to bear a disproportionate burden of the public good. Property owners often hear about a potential

taking from various sources, including solicitation letters, tenants, friends, the press or the government. In any case, it is important take action quickly. Get the most accurate information, and determine your goals in order to develop the correct strategy based on the facts and the law. It is in a real estate and business owner’s best interest to secure an experienced eminent domain lawyer as soon as possible. Pre-condemnation planning can make a substantial difference in the outcome. Approaching the government early (with the appropriate expert) can often lead to creative solutions that differ from the original plan. However, if you can’t reach an early agreement,

the constitution still protects you, and you can fight city hall. At all points in time, you should continue preparations for trial, while pursuing all possible compromises that would allow all parties to win. That approach can avoid litigation that soaks up your time and energy. In formulating your strategy, you may wish to consider the following: • Obtain the most updated plans as soon as possible regarding the project and your property. This information is public record. • Adopt a policy of respectful nondisclosure toward any inquires, and be sure they go through one person in your organization. Even sophisticated real estate clients can make seemingly

innocuous statements that could make a substantial difference in the outcome of your case. • Avoid saying or doing things that paint you or your property differently than how it should be accurately conveyed to a jury. Appealing the valuation to lower your property taxes, appraising the property, or contracting to sell, lease, or mortgage your property can provide fertile ground for admissions against interest. • Look at any improvements, underway or planned, and develop a strategy that avoids the government being able to paint you as one who is making improvements in bad faith solely because of the condemnation. • Be careful of any lease

renewals, modifications or extensions. Whether you are the owner, business owner or tenant, you need to protect your rights in regard to the taking or sale. • Keep your tenants informed to counteract any pressures or rumors that can negatively impact your relationship and increase vacancies. Tenants appreciate knowing you have experts on board to protect them, too. Remember that the government can only take what it reasonably needs for a project – nothing more. For example, Broward County wanted to take a Blackstone Airport Hilton at I-95 and Griffin Road to clear a safety zone at the end of an expanded runway. I defend-



ed the owner and engaged a former national director of the FAA as an expert. He opined that the county only needed part of the property, and we all sat down together and found a way to resolve the matter amicably and expeditiously. Conceiving and executing a creative win-win-win solution that fits the facts is often better for the owner than a “home-run” jury verdict. However, if a good faith effort is not successful, please know that you can fight city hall and win. Mark A. Tobin is a partner in Akerman’s Miami office who concentrates his practice solely on eminent domain representing property and business owners.

THE PLAINTIFF’S FIRM THAT UNDERSTANDS THE DEFENSE • CONTINUED FROM PAGE 5 a vigorous advocate for children’s safety and fight for the legal rights of injured children and their families,” added Schwamm, who was selected for The Best Lawyers in America® 2018 edition for his work in plaintiff medical malpractice.

BUILDING A CASE If you or a loved one has been a victim of someone else’s negligence, it’s important to engage an experienced legal team as quickly as possible, according to Haliczer. The firm’s investigators,

nurses and medical experts can start gathering the facts to find out what went wrong and who is responsible. Victims, friends and family members can also use their mobile phones to take photos and videos of conditions at an accident scene, Haliczer said. “Having photos of an accident scene keeps everyone honest,” he added. They can also provide invaluable evidence in the case, and result in a higher recovery.” Because the firm’s attorneys have a wealth of experience in these cases, Haliczer, Pettis and Schwamm know top-tier medical experts in

a wide range of disciplines who can evaluate their client’s conditions. “We also have nurses who work in house for us who review medical records,” said Schwamm. “We also know forensic experts who can determine if a patient’s record has been changed after the fact. Reflecting on the firm’s ability to serve clients, Haliczer said, “We understand the intersection of the health care and legal systems. By putting these two worlds together, we provide truly extraordinary advocacy for our clients.”

Advice for avoiding medical malpractice In today’s healthcare system, bad things happen to good people, says James Haliczer. “People are having a hard time finding the right care,” he said. ‘Then, problems can occur at any stage of the diagnostic, treatment and recovery process.” For instance, a doctor might not inform you about treatment alternatives or the potential risks of a surgical procedure. The wrong medication might be prescribed or there might be serious side effects from a medical device. Other errors can occur during the rehabilitation or recovery process, such as missing the warning signs of another medical problem. To reduce the risk of malpractice, Richard Schwamm says patients should try to learn as much as possible about an injury, disease or chronic condition. Then ask as many questions as possible. If you aren’t sure about provider’s recommendations, you can request a second opinion from another doctor. “Many times, it’s a good idea to bring a family member or friend who can help you remember the questions and answers or write things down for you,” he said. “Ultimately, you have to be an advocate for yourself.”





Advising Your Clients on Philanthropy: Whither the Federal Estate Tax? BY STEPHEN C. LANDE, DIRECTOR THE FOUNDATION OF THE GREATER MIAMI JEWISH FEDERATION

Much has been written on the potential impact of tax reform on charitable giving. Many studies have concluded that, while those who contribute to charity are not solely motivated by tax considerations, no one associated with philanthropy would ever deny that the tax benefits of giving are a factor. We hear about a significant increase in the standard deduction, lower tax rates and the complete elimination of the federal estate tax. Your clients are hearing the same thing. Even in the current uncertain political climate, you don’t need to be an expert to know that change is coming. From the charity’s perspective, increasing the standard deduction would mean that fewer taxpayers would itemize, so fewer would get a tax benefit from making charitable contributions. Lowering the tax rate would have the effect of raising the cost of philanthropy to the individual donor. Eliminating the estate tax would certainly simplify one of those age-old alternatives you have been presenting to your clients and we have presenting to our donors. How many times have we spoken about the three choices people have for the distribution of their assets when they die – their family, their favorite charity or Uncle Sam ? One theory is any change that has the effect of


reducing taxes – increased exemptions, lower rates or elimination of the federal estate tax – reduces the donor’s incentive to make a charitable contribution. The counter theory to that is any change with the effect of reducing taxes leaves more of their money at the disposal of donors, who might just chose to give some of it away. As counterintuitive as it might seem, experience tells us that saving taxes is not the primary motivation for our donors. I am reminded of a pithy observation usually attributed to accountants (no offense intended), which has been true at least since the early 1950s, something to the effect that, “It’s never cheaper to give your money away than it is to keep it.” In point of fact, our donors have been less and less motivated by the estate tax for a very long time. In 1941, the top estate tax rate was 77% and the exemption was very small. Today, the top rate is 40% and there is a lifetime exclusion of $5.49 million. The Tax Policy Center estimates that while

2.7 million people will die in 2017, only 11,300 estate tax returns will be filed and estate tax will be owed by only 5,500, or about 0.2% of those decedents. Americans did significant philanthropy before the modern incarnation of either the income tax or the estate tax in the second decade of the 20th century. There is no reason to believe that will not continue. How will the Greater Miami Jewish Federation and your clients’ other favored charities respond if the estate tax is eliminated? As always, we will be talking to our donors, your clients, suggesting they take advantage of their new freedom to distribute their assets at death without having to consider the estate tax consequences. We will also suggest that the elimination of taxes at death should make the lifetime giving opportunities we have been offering them even more attractive. After all, there will still be income and capital gains taxes to consider and if stepped-up basis goes away with the estate tax,

there will be new planning challenges. Charities will offer giving opportunities that provide the donors and their families with lifetime benefits, tax and otherwise. Charitable gift annuities and charitable remainder trusts, with up-front income tax deductions and payout rates often better than the investment markets, offer the opportunity to “do good while doing well.” Gifts of a remainder interest in a personal residence or vacation home also provide a substantial up-front income tax benefit, and the property is theirs to enjoy for as long as they choose. Life insurance policies, both newly issued and policies purchased long ago, but no longer needed, leverage the philanthropic impact of the gift and are very much tax-advantaged. The charitable contribution of retirement plan assets, both during life and at death, will continue to present an attractive option. While these assets will no longer be subject to estate tax, both the owner of the plan and his/her heirs will owe income tax on any

STEPHEN C. LANDE distributions. In summary, charities are optimistic that many committed Americans will discover that the elimination of the estate tax will broaden their horizons and provide a new potential pool of resources to pursue their philanthropic objectives. The resources of The Foundation of the Greater Miami Jewish Federation are available to you and your clients, in complete confidence and without obligation, as you consider this and other issues related to charitable gift planning. The future of the federal

In summary, charities are optimistic that many committed Americans will discover that the elimination of the estate tax will broaden their horizons and provide a new potential pool of resources to pursue their philanthropic objectives. The resources of The Foundation of the Greater Miami Jewish Federation are available to you and your clients, in complete confidence and without obligation, as you consider this and other issues related to charitable gift planning.

estate tax will no doubt influence your clients as they seek to fulfill their charitable objectives in a tax-advantaged manner, inspire and engage the next generation of their families and create a lasting legacy. For more information, please contact Foundation Director Steve Lande at slande@gmjf.org, or at 786-866-8623, or consult JewishMiami.org. Steve Lande is director of The Foundation of the Greater Miami Jewish Federation and serves as the Greater Miami Jewish Federation Authorized House Counsel. Before joining the Greater Miami Jewish Federation, he directed the Jewish Federation of Greater Pittsburgh’s endowment program for 18 years. A native of Iowa, Lande earned a law degree from Drake University and practiced law in Des Moines before joining the professional staff of the Jewish Federation of Greater Pittsburgh.