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CLASS OF 2016 PAGE 44

MIDYEAR 2016

GROWTH STRATEGIES SUCCESSFUL PRACTICES PRO BONO LEGAL MALPRACTICE PLUS EMPLOYER DATA, MEDICAL MISTAKES, PROPERTIES IN CUBA AND MORE.

INTERNATIONAL TAX AND WEALTH MANAGEMENT PAGE 24

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PUBLISHER’S NOTE

MASTHEAD

The Enduring Power of Print AT A RECENT Legal Marketing Association Corporate Counsel luncheon in Miami, it was refreshing and comforting to hear the panelists discuss the importance and validity of print. As many of us have undoubtedly experienced, the overload of electronic communications, particularly emails and social media, has gotten to the point of absurdity. Abundant are the stories of hundreds of communications coming at us on a daily basis. Like most of you, I have learned to tune off and ignore the messages or send them to the delete folder. But let’s face it, these communications might include important or interesting matters for us to consider. If you are the sender, although you might correctly assume that the cost itself to send the email or post to social media is minimal, you run the risk of wasting your marketing budget in the hopes that your message gets noticed and read by the intended audience. That is where the value of print comes in. Your intended audience is better defined; your message competes with less noise. Every time the recipient of a print edition opens the publication, your message is there. It does not get pushed down as do those on LinkedIn, Tweeter, Facebook etc. In that regard, it’s the opposite of Snapchat, where messages disappear as quickly as they are read. So be wise about your marketing. New does not always mean better. Ask anyone who’s a fan of classical music, art, theater or the dance. Instead, new should encourage us to analyze what we are doing and try to do things better. We do not adopt things because they are new, we adopt things because they provide the intended result, whichever it might be. The power of politics? As we move forward in this election year, here are my thoughts on politics: 1. If we continue spending our time finding who is to blame for the problems that this country currently has instead of dedicating ourselves to finding solutions, we will dig ourselves deeper into the hole and it will be harder to get out. 2. When the only reasons you can find to support one candidate are a listing of the other candidates flaws, then you should reexamine your position. Support for a candidate should be expressed with a list of that person’s accomplishments, performance, track record and values. 3. Only a fool would always vote down party lines. No party is right and no party is wrong all the time. One last note A few weeks ago, our good friend Mitchell Fuerst passed away. Mitchell was a good person, an excellent and accomplished lawyer, and a steadfast supporter of the South Florida Legal Guide. He will be missed. Jacob Safdeye Publisher 2

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SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

PUBLISHER JACOB SAFDEYE JACOB@SFLEGALGUIDE.COM EDITOR IN CHIEF RICHARD WESTLUND EDITOR@SFLEGALGUIDE.COM CREATIVE DIRECTOR ELIZABETH CARLISLE CREATIVE@SFLEGALGUIDE.COM GUEST CONTRIBUTORS MINDY BAER CHRISTIAN GARCIA ANDREW C. HALL ALLAN A. JOSEPH STEVE LANDE JOHN E. LEIGHTON STEPHEN H. WAGNER SOUTH FLORIDA LEGAL GUIDE VOLUME 17, NUMBER 1, 2016

Mailing address PO 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 lawyer is an important decision that should not be based solely on advertisements. Before you decide, ask the attorney to send you free written information about qualifications and experience. To Order Copies or Reprints Contact: info@sflegalguide.com or call: (786) 879.7638 • www.sflegalguide.com


CONTENTS

09

Inside

THIS ISSUE 02 Publisher’s Note 05 Editor’s note 06 Growth Strategies 09 Pro Bono 13 Building Successful Practices 22 Malpractice 24 International Tax and Wealth Management

30 Protecting Employer Data 32 Judgment Collection 34 Medical Mistake Victim

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36 Regulatory Spotlight 38 Expropriated Properties in Cuba

40 Advising Your Clients on Philanthropy

42 Sabadell Cocktail Reception 46 Class of 2016 51 Profiles

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EDITOR’S NOTE

Why DIY Is Not a Good Idea! WHEN EMBARKING on a home improvement project, many people take pride in using a “do it yourself” (DIY) strategy. If you have the expertise to replace an appliance, paint the exterior, or apply new flooring, you can save significant dollars by doing the work yourself. And if you make a mistake, it’s not that hard to hire someone to repair the damage. But a DIY approach is a bad idea when contemplating a personal or commercial investment in South Florida – particularly for foreign nationals. There are complex financial and tax issues to consider, making it essential to engage an experienced attorney, accountant and banker. One of our features in our Midyear Edition takes a close look at trends in international tax and wealth management, with insights from several leading professionals. They agree that it takes a team approach to provide the right combinational of services for each client. In this issue, you can also gain insights into various fields of practice by reading profiles of four experienced lawyers who are dedicated to serving their clients. Another feature looks at the growth strategies of South Florida law firms, and why several national firms are expanding their networks with new offices in the region. Our Midyear Edition also features our “Class of 2016” of Top Up and Comers who move into our Top Lawyers category, as well as a salute to our region’s leaders in providing pro bono services to those who need legal assistance in our community. In addition, we hope you enjoy reading the articles written by leading professionals on various aspects of law, finance and business in our Professional Forum, as well as in-depth Profiles of a select group of our top professionals. With our Midyear, Financial and Annual Editions, South Florida Legal Guide is dedicated to providing our readers with timely and helpful information in the fields of law, accounting, litigation support, and banking services. Thank you to our contributors, advertisers and sponsors for your continued support over the past 17 years.

Richard Westlund Editor

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GROWTH STRATEGIES

LAW FIRM GROWTH STRATEGIES Adding Talent, Opening Offices, Serving New Clients THIRTY-FIVE YEARS after Gerry Greenspoon co-founded a new Fort Lauderdale law firm, Greenspoon Marder has expanded across the country, opening new offices in Miami, Las Vegas and New York, as well as entering new practice areas. In contrast to this outward-bound strategy, Bowman and Brooke LLP, one of the nation’s leading product liability firms, opened its first South Florida office in February. Meanwhile, mergers, acquisitions and new boutique firms continue to reshape the region’s legal landscape. Here is a closer look at some of these firms’ growth strategies.

David M. Buckner

Buckner + Miles David M. Buckner, Seth Miles and Brett von Borke left their previous firm to co-found Buckner + Miles in December. Since then, the boutique trial firm in Coral Gables has added new talent to serve its clients. “We started with three partners and recently hired a fourth attorney,” says Buckner. “We will expect more growth in the next year or so, but we will always be a boutique firm.” Buckner and Miles worked together as federal prosecutors about 20 years ago, and continued to handle litigation on behalf of private clients. The firm handles plaintiff James P. Gueits personal injury and class action cases, as well 6

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as commercial litigation. “Our goal is to be the best trial firm in Florida and beyond,” says Buckner, who also handles appellate matters. “If I try a case, I handle the appeals, since I know the facts, as well as the arguments at trial.” Buckner says Miami is “a great town” for trial lawyers. “We have a large group of attorneys with good trial experience,” he adds. “We also have many talented associates. We look for lawyers with strong ethics, a good work ethic and the ability to represent our clients in the courtroom. There is no shortage of well-qualified young lawyers in South Florida.”

Jorge Espinosa

Espinosa Trueba Martinez, PL A boutique firm specializing in intellectual property (IP) law, Espinosa Trueba Martinez, PL took a major step forward in January. “We acquired the legal team at Martinez, White & Viniegra, enhancing our ability to assist larger clients and provide better service under one roof,” says Jorge Espinosa, managing partner of the Miami firm, which handles complex trademark litigation in the U.S. and abroad, as well as copyright matters and drafting international agreements. “Our firm culture is very horizontal,” adds Espinosa, who co-founded the firm in 2008 with William Trueba. “We strive to have a relaxed atmosphere and discuss issues and opportunities openly with our colleagues.” After the acquisition, the firm had eight attorneys and another seven staff members, with plans to add a new attorney in the patent litigation section. “We typically hire attorneys with several years of experience,” Espinosa says. “As a boutique firm, it’s hard to invest in people fresh out of law school.” While South Florida has plenty of talented attorneys, there’s a scarcity in the IP practice areas, Espinosa says, adding it’s also hard to find trademark and copyright paralegals in the regional market. Now, with a “deeper bench,” the firm is going after mid-size to larger national corporate clients. “We are having a very busy year, with no signs of a slowdown,” Espinosa says. “We are already seeing a return on our investment in talent. It’s a pleasure to work with partners and associates who share similar goals and want to keep growing professionally. At our firm, we want everyone to succeed.”


GROWTH STRATEGIES John Seipp, Jr.

Hamilton, Miller & Birthisel LLP In 2015, Hamilton Miller Birthisel LLP, joined with delancyhill, P.A., to expand its presence in Florida and the Caribbean. “Our firm is on a strong growth trajectory,” says Jerry D. Hamilton, managing partner of the Miami firm. “We launched the firm in 2006 with three lawyers and on our tenth anniversary we are approaching 50 attorneys including partners Michelle Delancy and Marlon Hill, who were the founding members of delancyhill. Our strategic plan calls for us to double in size in the next decade.” One of the region’s most diverse law firms with several offices in Florida and the Caribbean, Hamilton Miller Birthisel is a trial law firm specializing in insurance defense and coverage, premises liability, medical and professional liability, labor and employment, admiralty and maritime, construction, and complex business litigation. “We are primarily and insurance defense firm, and about 90 percent of our work is litigation with the other 10 percent involving transactions,” Hamilton says. “Our growth helps us serve our clients in different markets

Jerry D. Hamilton

and sectors. We can also take on larger cases, including the defense of class actions.” At Hamilton Miller Birthisel, shared values, such as a commitment to diversity and community service are embedded into the firm’s culture, Hamilton says. “We know the importance of teamwork within a law firm. It can’t be a place where ‘it’s all about me,’” he adds. While continually looking for good laterals who complement its practice areas, the firm has a commitment to promote from within, whenever possible. Many of the 15 partners were once associates, he says. “It gives me great pleasure to see young lawyers come in, try their own cases and build a book of business,” he says. “We respect our talented attorneys and staff members and provide them with the support they need to be successful in their careers.” Bowman and Brooke LLP Bowman and Brooke LLP, one of the nation’s leading product liability firms, recently acquired Seipp, Flick & Hosley LLP, giving it new offices in Miami and Orlando. “This combination was a natural fit for our team,” says John Seipp, Jr., managing

partner, Miami. “We had build a strong defense litigation practice over the past 20 years, and it’s a pleasure to be working sideby-side with lawyers across the country who are equally dedicated to excellence.” Bowman and Brooke’s Miami office now has 20 attorneys, and may add more lawyers in the future, Seipp says. “We represent most of the major automotive manufacturers, as well as many heavy equipment manufacturers,” he says. “We also handle pharmaceutical and ethical drug manufacturing defense.” The firm’s Miami and Orlando attorneys represent manufacturers and other clients in claims filed in Florida courts, as well as on a national basis. Also joining Bowman and Brooke were appellate attorney Wendy F. Lumish, and litigator Robert Rudock. “As a lawyer who has represented the automotive industry throughout my career, I have long known Bowman and Brooke as a great trial firm,” says Rudock. Bowman and Brooke LLP has nearly 200 attorneys who defend a variety of corporate clients, including many Global 500 companies, in widely publicized catastrophic injury and wrongful death matters, and in other product-related litigation throughout all 50 states. SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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GROWTH STRATEGIES

test [regarding the book of business].” Janis notes that Goldberg Segalla is highly regarded as one of the nation’s top places to work. “We are proud of creating such a positive environment.”

Rodney Janis

Goldberg Segalla Goldberg Segalla is another national law firm that entered the South Florida market this spring, opening offices in Miami and West Palm Beach. The 15-year-old Buffalo, N.Y., firm with nearly 300 attorneys, has no plans for further expansion in Florida “We are primarily a business and commercial litigation firm with a heavy emphasis on insurance coverage and insurance-related defense work,” says Rodney Janis, managing partner for Florida. “Our firm’s practice areas, including professional liability, class action defense, construction, trucking and transportation, are highly litigated in South Florida.” Goldberg Segalla now has 12 attorneys in its Miami and West Palm Beach offices along with 12 staffers. The firm also has a small office in Orlando. Janis says the Florida team is well-aligned with the national firm’s positive culture and vision of service. “We have been able to recruit great lawyers who are also good human beings,” he says. “In our firm, you have to pass the chemistry test before you get to the math 8

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Greenspoon Marder Since its founding in 1981, Greenspoon Marder has grown to more than 160 attorneys practicing in more than 40 areas of law, plus over 500 staff, in 13 offices throughout Florida and beyond. “We are very entrepreneurial in nature,” says managing partner Gerald “Gerry” Greenspoon. “The attorneys we bring in share that spirit. From a firm-wide perspective, we are looking for opportunities to broaden our base and add practice areas, as well as attracting new talent.” Last year, Greenspoon Marder opened an office in Las Vegas, and recently expanded to six attorneys handling litigation, labor and employment, and regulatory matters. On April 1, the firm opened a New York City office with nine lawyers doing litigation, corporate and securities cases. “We believe there is a great synergy between Florida and New York, in developing our corporate, mergers and acquisition, private equity and securities practices,” Greenspoon says. “It also allows us to grow our talent pool in the capital of the world’s financial markets, and increase our ability to service our clients.” This January, the firm opened a Miami office on Brickell Avenue, initially leasing half a floor that rapidly grew to an entire floor. “Miami had been a major part of our strategic plan for many years, but we held off until we found the right people,” Greenspoon says. “We are definitely excited about being part of the legal community in this dynamic gateway city.” Robert Lewis is managing shareholder of the Miami office, which now has approximately 20 attorneys. He also chairs the firm’s Alcohol Beverage Group, which includes attorneys Louis Terminello and Marbet Lewis. The Miami office is also home to the firm’s Criminal Defense Practice, led by shareholder David Kubiliun, the sophisticated real estate

practice of shareholder Manny Crespo, and the firm’s newly established Entertainment Law Group, led by shareholder Leslie Zigel. In April the firm also added a family law practice group led by shareholder Richard J. Preira. “Our Miami lawyers and staff now enjoy beautiful, thoroughly-modern space with large common areas and hospitality features that were designed to promote teamwork among practice groups and offer added conveniences to our clients,” Lewis says. Looking ahead, Greenspoon says the firm will continue to look for growth opportunities. “We recently launched a national marijuana practice to handle the complex legal side of the recreational and medical marijuana business,” he says. The firm’s new Cannabis Law Group includes attorneys in Denver, San Diego and Florida. “Eventually, we plan to open offices in almost every state that has some legal marijuana business,” Greenspoon says. “Our attorneys are used to dealing with complex state regulations and this will be a natural expansion for our firm.” Gerald Greenspoon


PRO BONO

A SALUTE TO PRO BONO SERVICE Helping the less fortunate access legal services

11th Circuit pro bono award winners at January 28 reception.

REUNITING IMMIGRANT children with their families, protecting teens from domestic violence, obtaining life-saving medical benefits and helping homeowners avoid foreclosure are a few of the ways South Florida attorneys demonstrate their commitment to pro bono service. To serve their communities, many attorneys also volunteer their time and raise funds to support worthy non-profit organizations like Legal Services of Greater Miami, Inc. (LSGMI), Dade Legal Aid, Legal Aid Service of Broward County, Coast to Coast Legal Aid of South Florida and the Legal Aid Society of Palm Beach County. Here is a closer look at South Florida attorneys who were recognized this spring for their exceptional pro bono services to clients in Miami-Dade, Broward and Palm Beach Counties. Miami-Dade In January, TotalBank hosted a January 28 awards reception for The Florida Bar’s 11th Circuit pro bono award winners and for Legal Services of Greater Miami, which is celebrating its 50th anniversary (see related sidebar article).

TotalBank President Jay Pelham organized the reception after serving as the community representative on The Florida Bar’s pro bono awards selection committee. “We read the heart-wrenching stories of children and parents who desperately needed legal assistance, and the hundreds of hours of pro bono support provided by these attorneys,” he said. “That convinced us to sponsor the reception for them and to help Legal Services of Greater Miami kick off its 50th anniversary year. Our bank is proud to serve South Florida attorneys and their firms, and the event was our way of giving back to the legal community.” Leslie Lott, a founding partner of Lott & Fischer in Coral Gables, chaired the committee that selected Lyndall M. “Lyndy” Lambert, Holland & Knight, as winner of The Florida Bar President’s Pro Bono Service Award for the 11th Judicial Circuit for her dedicated advocacy work with children. “Our committee was deeply impressed by the caliber of the nominations, and we decided to recognize seven additional attorneys for their pro bono service,” said Lott. “While many attorneys are stretched to the breaking point, these individuals found time to give back to the needy in our community.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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Alexander and Aileen Esteban and Fernando Aran

Hugo Martinez, Carlos Musibay and Frank Hermosa

Jay Pelham, Elizabeth Hernandez, Judge Vance Salter and Robert L. Parks

Jose Cuneo, Chauncey Cole and Jeff Hearne

Jorge Lopez Garcia, Alexandra Ruiz and Alexander Rodriguez

Charles Throckmorton, Judge Jacqueline Hogan Scola and John Kozyak 10 | SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

Carmen Fanego, Carlos Canino and Alison Miller

Jorge Rossell, Marcela Lozano, Marcia Garcia and Peter Lagonowicz

Three Kozyak Tropin & Throckmorton attorneys – Javier A. Lopez, a partner in the litigation department, and litigation attorneys Chauncey D. Cole, IV, and Stephanie Moncada – were recognized for providing a combined 600 hours of pro bono legal services to community organizations last year. “Although Stephanie Moncada has only been in practice for a year, she provided very meaningful and effective service on behalf of indigent children,” Lott said. “Javier Lopez and Chauncey Cole won a $240,000 settlement on behalf of a man who had been mistreated in a Hollywood police brutality case.” Jamie Vining, Friedland Vining P.A., was honored for launching a “patently impossible” competition to raise funds for Dade Legal Aid, which provides legal services for the needy through the Dade County Bar Association’s “Put Something Back” program.

Alex Annunziato, an attorney with the Office of Miami-Dade Commissioner Esteban Bovo, Jr., who teaches constitutional and criminal law at Miami Dade College, was recognized for preparing child custody and parental agreements for a victim of domestic violence in an abusive family situation. Cristina Alonso, Carlton Fields Jorden Burt, was honored for her advocacy work on parental rights for same-sex couples “so that children could be placed with loving caring parents,” Lott said. Sandra Millor, Akerman LLP, was a leader in a Cuban American Bar Association juvenile pro bono project to assist unaccompanied minor children seeking to escape gang violence, human trafficking and other problems. Millor provided pro bono services to a child from Honduras who wanted to stay in the U.S. with her mother.


PRO BONO

Broward Broward Lawyers Care, the pro bono project of Legal Aid Service of Broward County (LAS) and Coast to Coast Legal Aid of South Florida (CCLA), announced its 2016 award winners on May 6 during the annual Law Day Luncheon hosted by the Broward County Bar Association. “The ongoing need for volunteer legal assistance to the poor and disadvantaged affects the daily life of many in our community, including veterans and families,” said LAS in a press release. “These awards honor attorneys who recognize that need and have committed themselves to serving the community.” The Broward winners were: • 2016 Attorney of the Year - Russell M. Thompson. A longtime advocate for the disadvantaged in Broward County,

Thompson has represented 22 pro bono clients, including veterans, survivors of domestic violence, and child survivors of abuse and neglect. • Law Firm of the Year - Farmer, Jaffe, Weissing, Edwards, Fistos and Lehrman PL. The firm has a history of supporting the mission of LAS and CCLA. Collectively and individually, attorneys at the firm volunteer their time to represent veterans and other pro bono clients, mentor law students and serve on the LAS and CCLA Board. • Spirit of Justice Award – Scott D. Owens of Scott D. Owens, P.A. This award is presented annually to a person or group who furthers the mission of legal aid providers like LAS and CCLA and embodies the “spirit” of ensuring access to justice for all. Owens’ participation ranges from mentoring and coaching

staff attorneys in the Consumer Unit, to advocacy for and the direction of Cy Pres awards, service on the LAS and CCLA Board, and overall support and participation in fundraising events and activities. The official awards will be presented at the 15th Annual “For the Public Good” event to be held October 27, 2016. This is the annual fundraiser for Legal Aid Service of Broward County and Coast to Coast Legal Aid of South Florida. Proceeds benefit families and individuals in gaining access to equal justice. Palm Beach The Legal Aid Society of Palm Beach County honored nine attorneys, a private investigator, a community volunteer and Shutts & Bowen during its 28th annual Pro Bono Recognition Evening on May 7 at the Palm Beach County Convention Center in West Palm Beach.

Palm Beach County pro bono award winners.

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PRO BONO LEGAL SERVICES OF GREATER MIAMI, INC. CELEBRATES 50TH ANNIVERSARY “As a firm, we are honored to receive this award, and I am proud of the dedication our team has to giving back to the community,” said Arthur J. Menor, managing partner of the West Palm Beach office of Shutts & Bowen LLP, who received the award on behalf of the firm. The honorees supported causes for domestic violence survivors; abused, abandoned and neglected children; exploited seniors; foster children; and housing and employment discrimination victims. The individual award winners were: • A nd Justice For All Award - Greg Coleman, CLC Law and immediate past president of The Florida Bar • Appellate Law Award – Robert J. Hauser, Pankauski Law Firm • Civil Litigation Award – Amanda Rae Keller, Richman Greer • Community Service Award – Anthony P. Vernace, Greenberg Traurig • Family Law Award – Staci Burton, Roig Lawyers • Immigration Law Award – Holly Tabernilla, West Palm Beach • Non Profit Award – Lisa Markofsky, and Andrew Thomson, Proskaer • Special Services Award – Bob Goldberg, Surveilx • Suzanne Foley “Serving Justice” Award – Patience A. Burns, retiring executive director, Palm Beach County Bar Association • Veterans Advocacy Award – Maria J. Patullo, West Palm Beach The Legal Aid Society of Palm Beach County was founded in 1949 and provides free legal services to disadvantaged children, families, elders and individuals in Palm Beach County.

Shutts & Bowen team: from left, Adam Bregman, Patti Leonards, Hank Jackson, Arthur Menor, Matt Sackel, Matt Chait, Ed O’Sheehan and John Strickroot, Jr.

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Since its founding in 1966, Legal Services of Greater Miami, Inc. (LSGMI) has provided free legal services to the most vulnerable residents of Miami-Dade and Monroe Counties. “By helping them, we build stronger families and make the community a better place for all of us,” said Marcia K. Cypen, who has served as executive director since 1983. Under her leadership, LSGMI has grown to be a $7-million law firm with 30 attorneys. “We rely on support from the community, and thank the countless volunteers who have helped our organization through the years,” she added. This year, Legal Services of Greater Miami is celebrating its 50th anniversary of serving the region. Widely recognized as a model legal services program, its diverse staff provides clients with legal services in three languages from regional offices located in Miami and south Miami-Dade, and neighborhood offices throughout its service area. Noted “alumni” of the non-profit include the late U.S. Judge Wilkie Ferguson, Jr., former U.S. Congressman Lincoln Diaz-Balart, and Miami-Dade County Commissioner Daniella Levine Cava. “We are launching a major gifts campaign in our anniversary year,” said Cypen. “Our objective is to create a $25 million endowment fund whose proceeds would support attorney salaries. That would go a long way toward assuring our ability to serve the needy men, women and children in Miami-Dade and Monroe for the next 50 years.” Legal Services of Greater Miami recently purchased a new building at 4343 West Flagler Street. “This central location will make our main office more accessible to clients to the south and west,” Cypen said. “We know that transportation is a challenge for everyone, and have also invested in our phone and online intake system to get the legal process started faster and more efficiently.” The non-profit organization holds regular small claims clinics and divorce clinics staffed primarily by volunteer attorneys. “We also have strong pro bono relationships with many South Florida law firms,” Cypen said. “When we get a case, we send them an eblast, which they forward to their own attorneys. That has proven to be a very effective method for helping clients with challenging cases.” For example, Legal Services of Greater Miami took on a pro bono case for the residents of a mobile home park in El Portal that was being closed after its sale to a developer. “We filed a lawsuit alleging that the city violated state statutes and achieved a settlement that brought some relief to the tenants,” she said. Reflecting on her 40 years of service to the organization, Cypen said, “When I started here in 1976, one of the first cases I handled in federal court involved a cutback in Medicaid benefits and another was about improving living conditions for tenants in a rental building run by an absentee landlord. Today, we are still handling those kinds of cases. But the need for our services is greater because there are more people in poverty who are facing the same basic legal issues.”

Marcia K. Cypen


BUILDING SUCCESSFUL PRACTICES

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BUILDING SUCCESSFUL PRACTICES: MARITIME LAW

RAÚL J. CHACÓN, JR. BRINGS ENGINEERING BACKGROUND TO MARITIME DEFENSE PRACTICE

R

aúl J. Chacón, Jr., knows a great deal about marine products and safe boating practices. As the managing partner of the Miami office of The Chartwell Law Offices, LLP, Chacón defends individual and commercial clients in a variety of admiralty and maritime legal matters. “I got into marine products liability because of my engineering background,” says Chacón, who is board certified in admiralty and maritime law. “I love meeting the manufacturer’s engineers and designers when defending a case.’ For example, Chacón recently finished a three-week products liability trial following a serious accident on Biscayne Bay. A power boat was cruising at about 50 knots, when an outboard engine fell off, sending the boat’s passengers into the water with serous injuries. “It turned out that the wrong mounting bolt had been installed on the boat,” Chacón says. “The engineering experts and I went over the drawings and installation procedures for the mounting, and found that someone had modified that bolt after it had been installed. The plaintiff’s experts kept presenting their theories about the manufacturer’s liability, but we were able to debunk each one. In the end, the jury agreed that they had not proven their case in a matter that involved a seven-figure exposure to my client.”

AN ENGINEERING EDUCATION Chacón was born in Atlanta, the son of Cuban émigré parents. His father, Raúl, Sr., an engineer, and his mother Lidia left soon after Castro took power in 1959. The family moved to Miami when Chacón was in school. In high school, Chacón planned to study medicine and received a pre-med scholarship at Barry University. “I realized that medicine was not going to be my career path, and changed direction to 14

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engineering,” he says. Chacón spent his first year at Miami-Dade Community College and then transferred to the University of Miami with a scholarship in electrical engineering. He graduated from the UM College of Engineering, with bachelor’s degree in 1990. “While I was in college, one of my friends told me that I would be an excellent attorney,” Chacón says. “Not long after that, we were eating in a Chinese restaurant and I opened a fortune cookie that said, ‘You will become a good lawyer.’ I considered that an omen – although I took my friend’s advice more seriously – and applied to the University of Miami School of Law.” Chacón enjoyed law school, especially the intellectual property and litigation classes. “I decided to become a patent attorney, because that would draw on my interest and background in engineering,” he says. But while at a job fair interviewing with intellectual property firms, the UM placement director suggested talking with the FBI and the district attorney’s office in Brooklyn, N.Y. A few days later, Chacón received an offer from the Brooklyn DA’s office, even though he hadn’t submitted a resume. Chacón liked the idea of becoming a prosecutor, but decided to stay in South Florida, where he was hired by Dade County State Attorney Janet Reno, just before she became President Clinton’s attorney general. “I worked at the office for four years, handling a wide range of cases,” he says. “That period was incredibly helpful in building my trial skills.” The next step in Chacón’s career was moving into the private sector and applying those hard-earned litigation skills in a different field: admiralty and maritime law. In 1997, he joined Hayden & Milliken in Coral Gables, which later became the Miami office of Fowler Rodriguez, and spent ten years with the firm. Chacón steadily built his credentials in admiralty and maritime law, and after a big

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insurance coverage case in 2006, he joined Houck Anderson. Three years ago, the Miami firm merged with Philadelphia-based Chartwell Law Offices LLP, and today the Miami office has about 18 attorneys. As vice chair of The Florida Bar Maritime Law Committee, and incoming chairman of The Florida Bar Admiralty & Maritime Law Board Certification Committee, Chacón is a leader in the state’s maritime legal community. “We now have 65 attorneys who are board certified in this specialization, constituting a well-respected admiralty bar,” he says.

HANDLING NATIONAL CASES Today, Chacón handles marine product liability cases on a national level. He is regularly appointed to act as national and local counsel by insurance companies on marine products liability matters and has represented clients from jurisdictions as far north as Canada, throughout the Continental U.S., Hawaii, Caribbean and South America. He has also been retained as outside general counsel by various companies to provide guidance in a wide variety of matters. “Raúl is an exceptional individual and a great lawyer,” says Maria R. Nigro, Sr., a marine examiner in Virginia. “He recently handled a case for us all the way through trial, resulting in a very positive outcome.” On the personal side, Chacón and his wife Odette, a stockbroker, have a son Lucas and daughter Katerina. “I am a big ‘Star Wars’ fan – hence my son’s name – and have always enjoyed sports,” he says. “I enjoy skiing, running, biking and swimming.” In the past six years, Chacón has competed in half-marathons and triathlons in Miami and Orlando. He has also been active in the community, serving on the board of the Leukemia & Lymphoma Society’s South Florida chapter. Professionally, Chacón teaches maritime insurance law at the University of Miami. “I


BUILDING SUCCESSFUL PRACTICES: MARITIME LAW

enjoy mentoring younger lawyers, as well,” he says, adding that there is a need for more Hispanics and African-Americans in marine law. As a board member of the Cuban American Bar Association, Chacón helped endow about $500,000 for scholarships in Florida law schools, and started a mentorship program that has involved more than 1,000 participants. He has been published and has presented on various topics, including maritime law and practice, handling maritime claims in the U.S., management of maintenance and cure, risk shifting in maritime contracts, products liability and analysis of U.S. Supreme Court decisions. Chacón currently serves as an adviser to the National Marine Manufacturers Association, and on the board of the League of Prosecutors, an organization of current and former prosecutors that seeks to educate the public about the judicial system. Throughout his career, Chacón has always tried to do the right thing. In the early 2000s, he represented the insurer in a case in Grand Cayman involving a tanker carrying liquefied natural gas (LNG) that exploded, killing three crew members and injuring a dozen more. “The vessel was registered in Panama and the crew was from Colombia,” he says. “Even though it didn’t touch U.S. soil, the ship’s manager was based here in the U.S. That led to a fight over jurisdiction before the case was eventually settled.” During the proceedings, Chacón traveled regularly to Colombia, talking to local attorneys, injured crew members and families of the deceased, whose lives were changed by the accident. “It was very important for us to do the right thing,” he says. “For instance, we went out and helped get hearing aids for some of the crew, as well as providing a fair financial settlement for the families. Even though I was on the defense side, we were able to build lasting friendships and I still get Christmas cards from some of them.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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BUILDING SUCCESSFUL PRACTICES: APPELLATE LAW

NANCY W. GREGOIRE ENJOYS TELLING HER CLIENTS’ STORIES TO THE COURT

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ancy W. Gregoire says writing an appellate brief can be as challenging as writing a novel. “You have to tell a story with a beginning, a middle and an end,” she says. “But you also have to argue why it’s the right story.” In the past 30 years, Gregoire has presented her clients’ cases to appeals courts throughout Florida. A partner 16

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at Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC in Fort Lauderdale, she chairs the firm’s appellate practice and litigation support divisions. As a boardcertified appellate attorney and a fellow of the American Academy of Appellate Lawyers, she often counsels and assists trial lawyers in managing the trial record, and in co-counseling on major legal issues that arise in the course of trial. “Nancy is an exceptional appellate attorney and a pleasure to work with,”

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

says Richard Ivers, a consumer protection attorney in Coral Springs. “She brings a different perspective to each case, and provides an honest opinion of the likelihood of success at the appellate level.” Gregoire’s longtime assistant and close friend Cheryl Larson agrees. “When you read Nancy’s briefs, you get caught up in the argument and you keep reading to see what happens next. Her use of the English language is unsurpassed and I have the deepest respect for her.”


BUILDING SUCCESSFUL PRACTICES: APPELLATE LAW

A longtime leader in professional circles, Gregoire has served on The Florida Bar Board of Governors, The Florida Bar Appellate Practice Section, and numerous other Florida Bar committees, including the Appellate Court Rules Committee, the Annual Meeting Committee, and the Appellate Practice Certification Committee. She also served as president of Legal Aid Service of Broward County in 2001 and president of the Broward County Bar Association in 2002-2003. FROM TEACHING TO LAW Gregoire came to South Florida at an early age when her parents, Eugene and Eleanor, moved from New York to Florida. Her father had been a stockbroker on Wall Street before changing careers and opening an ice cream parlor in the early 1950s in Tampa. After high school, Gregoire enrolled at Loyola University in New Orleans and transferred to the University of Florida, planning a career in medicine. In her junior year, she married a law school student and switched her major from pre-med to education. After earning her bachelor’s and master’s degrees, Gregoire soon got a job as a mathematics teacher at Melrose High School in a small town 20 miles east of Gainesville. The next year she was asked to teach English as well as algebra and trigonometry – a decision that delighted Gregoire, who says, “I have always loved reading and poetry.” In the late 1960s, Gregoire and her family moved to Fort Lauderdale, where her husband had found a job. She kept busy, raising her daughter Stephanie and adding to her teaching credentials with an education specialist certification from Florida Atlantic University. However, the marriage fell apart, and Gregoire decided to restart her career as a lawyer. She took classes at the University of Miami School of Law at night as a scholarship student while working as a court transcriptionist during the day. She later married Mark Gregoire, a veteran of the Vietnam War who owned and operated Atlantic Bicycle in Margate, and had a second daughter Meredith.

After becoming an attorney, Gregoire handled litigation cases for a small Broward firm, but soon realized it wasn’t a good fit for her. In 1986, the turning point in her legal career occurred when longtime Fort Lauderdale attorney Terry Russell offered her a position with his firm, Ruden, Barnett, McClosky, Schuster and Russell P.A. “I was tired of litigation, and thought about moving into intellectual property law,” she says. “But Terry knew how much I liked to read and write and suggested that I handle appeals for the firm. It was a great decision, and I’ve never looked back.” Her first appeals cases involved foreclosures, representing first and second mortgagees, but Gregoire soon found herself handling the firm’s family law appellate work. In 1996, she left the firm to join Bunnell Woulfe, which became Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., where she stayed until cofounding her current firm in 2006. While Gregoire has long been active in family law and probate cases, that experience didn’t prepare her for the personal tragedy of losing her husband Mark to pancreatic cancer in 2012. She is an active supporter of cancer research as well as the Wounded Warrior Project, and also serves as president of the Irish Cultural Institute of Florida. Now, she spends family time with her children, three grandchildren and her two cats, and enjoys reading historical novels, including Harper Lee’s recent bestseller, “Go Set a Watchman.” HANDLING COMMERCIAL APPEALS Through the years, Gregoire has handled thousands of appeals involving many types of cases. For instance, she represented the nephew of a wealthy widow “who took care of her at a time when she had been deserted by everyone else in the family,” she says. “The other family members challenged her will, which left everything to my client. A probate judge said the nephew had unduly influenced the lady, but fortunately we were able to overturn that ruling on appeal.” In 2015, Gregoire was successful in overturning a trial court’s guardianship

ruling for a New Yorker living in a South Florida retirement home. “His advanced directive documents provided for a lessrestrictive alternative to guardianship with his former wife serving as representative,” says Gregoire, adding that the Florida Statutes state, “A guardian may not be appointed if the court finds there is an alternative to guardianship which will sufficiently address the problems of the incapacitated person.” Now, Gregoire focuses primarily on commercial cases, including insurance defense work at the circuit, district, appellate and Florida Supreme Court levels. “It’s very challenging to look at these matters, and you can trace the logic of these cases.” Gregoire says the Florida personal injury protection (PIP) statute is 16 pages long and filled with complexities,” she says. “It’s easy to misinterpret the statute and believe you are right.” From her perspective, Gregoire says medical providers submit much higher bills to insurers than they charge other payors. “The statute give the test of reasonableness – what would a reasonable person pay for a service – but the courts often grant summary judgment against the insurer,” she says. “Then, it’s my job to handle the appeal of the case.” The high volume of PIP, foreclosure and red-light traffic cases in South Florida has affected Gregoire’s appellate work. “In Miami-Dade, these cases start in county court, but everyone can appeal the result to circuit court,” she says. For example, she recently presented a case before a panel of three judges on a PIP appeal. “They knew the right questions to ask and my client received a fair hearing,” she added. In Broward and Palm Beach Counties, similar appellate panels at the circuit court level read the briefs, but hear no oral arguments, she says. “In my opinion, it’s not a good practice for judges to have to handle such a high volume of both trial and appellate cases,” she says. “Our nation, our state and our municipalities need to provide adequate resources for the courts in order to continue to provide justice for all.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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BUILDING SUCCESSFUL PRACTICES: INTELLECTUAL PROPERTY LAW

GREGORY A. NELSON FOCUSES ON FLORIDA’S LIFE SCIENCES SECTOR

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hether advising a well-established medical device company, a university technology transfer office or a promising start-up, Gregory A. Nelson is committed to advancing Florida’s life sciences sector. “I really enjoy the challenge of helping a young business get off the ground,” says Nelson, a partner with Fox Rothschild’s office in West Palm Beach who focuses his practice on intellectual property (IP) law. “I feel like I can really make a difference for my clients, while contributing to our state’s future.” A frequent lecturer, panelist and moderator on intellectual property topics, Nelson brings more than 30 years of experience in IP legal work to his practice, which includes strategic representation to clients in all phases of patent, trademark and copyright law, including prosecution, licensing and litigation. He joined Fox Rothschild earlier this year and is now one of 25 attorneys in the fast-growing office. “Technology start-ups need to protect their businesses against infringement,” Nelson says. “That means putting as much IP protection as possible around a new product. As the company moves forward with development and commercialization, the need for protection continues, since product improvements can be even more valuable than the first invention.” Another aspect of Nelson’s service is building an intellectual property portfolio that will appeal to potential investors. That might mean filing multiple patents for other prospective products that might be developed in the future. That patent planning is important, Nelson adds, because most investors will ask their own attorneys to review the IP portfolio and make recommendations before releasing funds. 18

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“Licensing is a third area of IP focus for both start-ups and established companies,” says Nelson. “They recognize that their patents can potentially generate a stream of review and they want to be well-positioned to capitalize on those opportunities.” One of Nelson’s South Florida clients is Felipe Echeverri, managing director of Biorep Technologies, Inc., a Miami Lakes company that makes handheld instruments for heart surgery and equipment for islet cell transplantation to treat diabetes. “I’ve known Greg for 13 years and he’s played an important role in Biorep’s growth and success,” says Echeverri. “He was successful in getting more than 15 issued patents for us, and he has helped us get more involved in the life sciences industry here. He’s an exceptional attorney who goes out of his way to provide support.” BECOMING AN ATTORNEY Nelson comes from a military family as his father was a career pilot in the U.S. Air Force. He grew up in Broward County, graduated from Miramar High School, and earned a degree in chemical engineering from the University of Florida. “I had a classmate in engineering who was interested in intellectual property law, and that piqued my curiosity,” he says. “I was also considering a career in business and felt that a law degree would be a great foundation.” After earning his law degree at Gainesville in 1982, Nelson joined an IP law firm in Chicago. “At that time, there were very few opportunities for IP work in South Florida,” he says. “I lasted one winter in Chicago, and when an opportunity arose to come back to Florida, I jumped at the chance.” He took a job at Steele Gould & Fried in West Palm Beach and has lived here ever since then. “Two of the things I like most about South Florida are the warm weather and the water,” he says. “I have two

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

powerboats, because I don’t want to wait for the wind on a sailboat.” Through the years, Nelson has handled almost everything in the IP field, including litigation. “Gaining that broad experience has been very helpful when advising clients,” he says. “Unfortunately, the legal field has become more specialized and an IP lawyer might only work on patents or trademarks, for instance, and not be exposed to the breadth of activity in our field.” Today, much of the IP work that Nelson does is for clients in the biotechnology and bioscience sectors. “In Florida, the life sciences industry is relatively young,” he says. “Although that situation is changing with the growth of major research institutes and programs, our state has a very different type of IP practice than you would find in Massachusetts or California, where there are many more large corporations.” Nelson has also built relationships with the South Florida’s leading research universities. He assists in developing patent strategies and accelerating the transfer of technology from the laboratory to clinical care and consumer-oriented technology. “South Florida’s academic institutions are becoming very active in developing technology and spinning it out to benefit the local community,” he says. “That’s a very positive change in the economic climate here. When I graduated from UF’s engineering school, almost everyone had to leave the state in order to get a job in chemical engineering.” Nelson is a founding member and past chair of the Florida Chapter of the Licensing Executives Society, a national and international organization of technology transfer professionals, both public and private. He is also a past chair and member of the Executive Committee of the Enterprise Development Corporation.


BUILDING SUCCESSFUL PRACTICES: INTELLECTUAL PROPERTY LAW

GROWING THE BIOSCIENCES SECTOR Nelson has been a leader in the state’s biosciences sector for many years, serving on the board of BioFlorida, the independent statewide bioscience organization. He has been an officer in the organization, cochaired BioFlorida’s 2005 and 2006 annual conferences and organized an innovative Latin American Life Science Conference in 2014, building bridges with technology professionals throughout the hemisphere – a theme echoed in the recent eMerge Americas conferences in Miami.

“Greg has been a true asset to BioFlorida,” says Nancy Bryan, president and CEO of the West Palm Beach-based organization. “He has been instrumental in supporting the development of life sciences in our state, first as general counsel, then as a board member and now as board secretary.” Nelson has also championed the growth of BioFlorida’s Saturday Exchanges, a series of meetings to showcase new companies and provide career networking opportunities for industry veterans and recent graduates, according to Bryan. “He is helping us groom the next generation of life sciences

professionals in our state.” In the biosciences and other technology fields, Nelson says he enjoys working with young entrepreneurs, giving them the benefit of his experience and introducing them to potential mentors, coaches and advisers in his extensive professional network. “I try to put them in touch with good people who will provide them with solid advice as they build their companies,” he says. “It’s very rewarding for me to see new companies succeed, while enhancing the technology base of our community.”

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BUILDING SUCCESSFUL PRACTICES: COMMERCIAL LITIGATION

KATIE S. PHANG HANDLES HIGH-STAKES COMMERCIAL DISPUTES

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ou may have seen Katie S. Phang analyzing important legal cases on Fox News or Fox Business Network, or heard her on National Public Radio (NPR). But if you’re a litigator, you probably don’t want to meet her in court. “I have no fear about going to trial,” she says. “Even if I expect a case to settle, I keep pushing 20

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forward, trying to get the best settlement for my client or taking the case to trial as efficiently and cost-effectively as possible. That mindset makes a huge difference to the client.” An experienced commercial litigator with more than 16 years of trial experience, Phang is a partner on Berger Singerman’s Dispute Resolution Team, where she represents a diverse group of clients in state and federal courts. She is also an active leader in South

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

Florida’s legal circles, serving as the chair of a Florida Bar grievance committee, presidentelect of the Miami-Dade Chapter of the Florida Association for Women Lawyers, and a member of many other professional organizations. “In a high-stakes case involving complex legal issues, multiple parties and all of their personalities, Katie’s legal skills, charm, and tenacity led us to a very favorable


BUILDING SUCCESSFUL PRACTICES: COMMERCIAL LITIGATION

outcome,” says Frank Marro, president and CEO of Drever Capital Management, LLC. “She’s not afraid to go toe-to-toe with opposing counsel, inside or outside of the courtroom, and will drive the case to its best conclusion.”

GROWING UP IN MIAMI Born in New York, Phang lived in Tuscaloosa, Alabama, with her parents, Dr. Michael and Jean Phang, and her brother, before her father accepted a position as professor and Vice-Dean of the College of Engineering at the University of Miami. “I am a first-generation American,” she says. “My parents came from South Korea and I got the 100 percent work ethic genes right from the start.” As a child, Phang was classically trained in piano and violin, and took lessons at the UM Frost School of Music. “I spent a lot of time on the Coral Gables campus, which has grown and changed so much through the years,” she says. After high school, Phang headed to New Haven, Connecticut, as an undergraduate student at Yale University, where she earned her bachelor’s degree in political science. She also enjoyed studying foreign languages, international relations and American government. While at Yale, she joined a collegiate a cappella singing group, which gave her more experience in getting up on stage in a room full of strangers. Then, Phang returned to Miami and enrolled at the UM School of Law, taking as many courses as she could, while working several jobs as well. “As a law school student, I found I loved trial work and took part in many mock trials and moot court,” she says. “I relished the intensity of the preparation you put into a trial and the idea of presenting your case to the jury.” Decades later as an adjunct professor at the law school, Phang says she tells her students that they have to have more than just technical proficiency and subject knowledge to be a good trial lawyer. “You have to make your case interesting and compelling to the jury,” she says.

BECOMING A PROSECUTOR From law school, Phang became a prosecutor on Miami-Dade State Attorney Katherine Fernandez Rundle’s team. She started trying misdemeanors and left several years later as a division chief, trying capital homicide cases. “At 29 I was trying life felonies, and the office really gave me great opportunities to grow as a lawyer,” she says. She later joined Broward State Attorney Michael J. Satz’s office in Fort Lauderdale. In 2012, Phang co-founded Arrastia, Capote & Phang, LLP, a minority-owned law firm where she handled commercial litigation cases for major corporate clients, as well as small business owners and individuals. On January 1, 2015, Phang joined Berger Singerman as the only female litigation partner in the Miami office. Her practice includes business torts, contract breaches, restrictive covenants and other commercial matters, assisting both local and national companies. Much of her caseload comes from referrals, she adds. She also mentors younger women litigation associates throughout the firm. Recently, Phang represented a Californiabased hedge fund that provided the capital for Seasalt & Pepper, a restaurant on the Miami River. “The two principals were battling for control, and my client wanted to make sure they were paid back,” she says. “We ended up resolving the case and everyone was pleased with the result.” Phang also has a busy marital law practice, assisting clients with significant business and property assets. “I also do some criminal defense, but I am very selective in those cases,” she says. “When someone’s liberty is at stake, you have to do everything you can to help your client.” She also serves as an expert witness on professional fees and costs. With her background as a legal analyst for the media, Phang often advises her clients on the public relations aspects of highprofile cases. “All the tweets and posts on social media can create a PR nightmare for a client,” she says. “So, you have to have a plan to control the damage and activate it right from the start.” That is one of the lessons

she will share with other attorneys in an upcoming presentation to the Dade County Bar Association on “Winning Your Case with the Media.” While managing social media can be a difficult challenge, Phang says understanding how to look for information can also be helpful in building a case. “I have been able to tear my opponents’ arguments apart based upon what they put on social media,” she says.

BECOMING A PARENT Phang and her husband Jonathan S. Feldman, a litigator at Perlman, Bajandas, Yevoli & Albright, P.L ,have an 18-monthold daughter, Charlotte. As a professional woman who became a mom later in life, Phang says being a parent has given her a fresh perspective on her career. “I’ve learned to take a breath before I react,” she says. “Mindfulness is also important to me, and I try to stay in the present and focus on what’s in front of me, rather than getting ahead of myself.” Phang says other women attorneys ask her how she can balance family and career. “I am blunt and tell them that you can’t do everything well, all of the time,” she says. “Some days I am a 150-percent Berger Singerman trial lawyer and may not even get to spend time with my daughter. On other days, my schedule permits me to leave early and relax with my family. Having a husband who’s a lawyer helps immensely because he understands the pressure of being a litigator.” To unwind, Phang enjoys Pilates classes and playing on her grand piano, alone or with her young daughter. She also goes to classical music concerts, Miami City Ballet performances, and other cultural events. Looking ahead, Phang says, “I’m hitting my sweet spot as a lawyer, and I want to keep building my business and diversifying my litigation practice. I also want to help grow Berger Singerman. We have 82 lawyers in four Florida offices and a great collaborative culture. I’m always learning something new and that keeps life interesting.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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LEGAL MALPRACTICE

AN ATTORNEY’S NIGHTMARE Plaintiff and Defense Perspectives on Legal Malpractice Editor’s Note: A legal malpractice suit is a nightmare for any attorney. To gain firsthand perspectives on these high-stakes matters, South Florida Legal Guide interviewed plaintiff ’s attorney Warren R. Trazenfeld and defense attorneys Richard Critchlow, Deborah Corbishley and Elizabeth Honkonen. Here are their insights and suggestions.

Warren R. Trazenfeld

THE PLAINTIFF’S PERSPECTIVE Today, any attorney is at risk for a legal malpractice lawsuit, says Warren R. Trazenfeld, founder and managing partner, Warren R. Trazenfeld, P.A. in Coconut Grove. “One of the first traps for attorneys is being unwilling to believe it could happen to you,” he says. “A lot of bad lawyers get sued for legal malpractice, but so do really good lawyers, big firm lawyers and solo practitioners. We are all at risk, so be careful and buy insurance coverage. You will be glad you did.” In the past few years, Trazenfeld has seen an increase in malpractice suits in several areas of the law, including real estate transactions and family law matters such as adoptions and estate planning. Although commercial litigation spawns a large number of malpractice suits across the country, it is not a major factor in South Florida, says Trazenfeld. “While there are some legal malpractice cases that have come to my attention that should never have been filed, there are far too many cases where a lawyer committed a provable error with resulting significant damages to his or her client,” he says. “Some of these attorneys are clueless, while others put their own interests first to the detriment of their clients.” Generally, a lawyer can only be sued for 22

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malpractice by a former client, Trazenfeld says. However, there is an exception for beneficiaries named in a will. “Because the beneficiary lacks a personal relationship with the lawyer these cases often become acrimonious,” he says. “The transfer of wealth among several generations, also leads to legal malpractice suits, particularly when the deceased has multiple marriages with different children.” When a plaintiff sues a lawyer for malpractice, it’s important for the attorney to advise the insurance company about a potential claim, says Trazenfeld. Otherwise, the insurer may deny coverage or reserve its rights. While a majority of malpractice cases ultimately settle, the plaintiff’s attorney should always be prepared to try the case, he adds. “If it comes down to whether a juror believes the lawyer or the client, the client wins almost every time,” he says. Drawing from more than 25 years’ experience as a plaintiff’s attorney, Trazenfeld has several suggestions to reduce the risk of a malpractice suit. • Prepare effective engagement letters. “Clients think lawyers represent them on every problem they have,” he says. “Your letter should spell out exactly what you will do for the client. For instance, if you aren’t handling zoning in a real estate matter, you should spell that out. If it’s a personal injury case, let the client know you won’t handle the workers’ compensation issues. And if you don’t provide tax advice on a transaction, your letter should note that as well.” • Don’t take a case beyond your expertise. “We have seen cases where an attorney works on a transaction, and then litigates the problems that arise afterwards,” Trazenfeld says. “While some attorneys are good at both, you need to be aware of your own skill set and limitations. Otherwise, you are opening yourself up to a malpractice suit.” • Provide cost-benefit information. “Too many lawyers look at clients as a bucket of

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

billable hours,” he says. “Instead, you have to look closely at the best way to achieve the client’s goals. If economic decisions are made, they should be well documented so the client understands them and the consequences of those decisions.” • Manage your client’s expectations. “I get a lot of calls where the client says it was a million-dollar case but at mediation, it’s become a $10,000 case,” he says. “That creates an angry client who’s ready to sue. If problems develop that reduce the value of the case, then you need to communicate that to the client.” • Return phone calls. Lawyers who are sued for legal malpractice almost invariable violate this rule, Trazenfeld says. “There is nothing clients resent more than being ignored by the lawyer they are paying to represent their interests.” • Don’t send hasty emails. “Clients demand immediate responses, but replying with a quick email is a common way to get into trouble,” he says. “Tell the client you need some time to think about this significant issue, and remember that incomplete advice is as wrong as bad advice. Many malpractice cases have turned on emails that attorneys wish they had never sent.” • Don’t forget your small cases. Even if your time and attention is spent on large matters, don’t let other cases sit on the bottom of your in-box. “Only rarely are lawyers sued by their most important clients,” says Trazenfeld. “Many times it’s the small case or the difficult case that gets neglected. The truth is there are no insignificant cases or transactions on your docket.” Finally, Trazenfeld says the most important step occurs during client intake. “Don’t be afraid to turn down a client who has already been through three or four different lawyers or has extensive litigation experience,” he says. “If you feel wary about taking on a new client, trust your instincts, and just say no.”


LEGAL MALPRACTICE THE DEFENSE PERSPECTIVE Legal malpractice lawsuits are on the rise for a number of reasons, according to Richard Critchlow, Deborah Corbishley and Elizabeth Honkonen, partners at Kenny Nachwalter in Miami who defend attorneys from midsize and large firms. “When clients lose a lawsuit or a transaction does not turn out the way they expected, they often look to blame someone else for the result,” says Critchlow. “Often, the people clients look to blame are insured professionals, such as their attorneys.” Another reason for the upturn in legal malpractice cases is the pressure to generate new business, adds Corbishley. As a result, an attorney may take on a new case without considering the risks involved in handling a matter for that client. “Don’t shortchange your assessment and underwriting process,” she says. Corbishley says the “red flags” on client intake include an entrepreneur in financial trouble, a business owner who needs help with refinancing, a client who has fired multiple prior attorneys, or any client who may be engaged in criminal activity. “These clients are looking to solve an immediate financial problem and think they can make a quick buck by suing their attorney,” she says “They may even threaten the attorney with reputational damage by saying, ‘You don’t want to see this in the papers.’” The risk of being sued for malpractice is there for any attorney, whether at a small firm or a large firm, says Critchlow. “Nobody ever thinks they will be sued by a client they’ve known for years, but things can change quickly,” he says. “Professionals like attorneys and accountants are perceived as having deep pockets, making them attractive targets for a plaintiff’s suit. However, insurance companies don’t want to be perceived as ‘soft,’ and will fight these cases rather than give in with a quick settlement.” In fact, Critchlow, Corbishley and Honkonen approach every case as if it will ultimately go to trial. “We want to be able to explain the case in an easily understood manner,” says Honkonen. “We also want the jury to see our client as a likeable person with strong legal skills.” Having adequate insurance protection can provide financial protection against a malpractice suit, says Critchlow, who suggests purchasing a policy based on the scope of the practice. “If you are handling transactions of $1 million or more and you only have a

$500,000 policy, you are underinsured,” he says. “Some attorneys get insurance from low-premium companies who have the power to control who the lawyer hires and what they are willing to pay to defend the case. But if it’s a ‘bet the firm’ case, you want an experienced attorney defending you.” Sufficient coverage is vital for attorneys in securities, banking and intellectual property because they are high-exposure legal fields with “land mines” that can result in malpractice suits against even good lawyers, Critchlow adds. For instance, a calendaring error that leads to a missed deadline in a patent, copyright or trademark case can cause serious problems for a client. Critchlow also recommends getting “tail coverage” on a policy to provide coverage for incidents that occur during the coverage period but are not asserteduntil after the coverage period. “In real estate, for instance, a problem may not show up for several years,” he says. “Tail coverage can also protect a lawyer from any claim dating from actions at a prior firm.” From their long experience, the Kenny Nachwalter defense team has several suggestions for reducing the risk of legal malpractice suits. • Identify the client. Critchlow says that’s not always a simple issue. “You might get hired by a friend who happens to be the president of the company,” he says. “But in the event of a suit you might have to take action against your friend, because you represent the corporate entity, not the officers.” • Look for possible conflicts. In a corporate engagement, that means taking the time to look at the subsidiaries, affiliates and parent company, as well as the ownership structure, Critchlow says. Due diligence at the start is much better than having to mount a defense later on, he add. If conflicts arise during the course of the case, they should be disclosed immediately to the client. • Be wary of joint representation. “These engagements are fraught with problems,” says Corbishley. “If you are taking representation of more than one client, you should declare what happens if a conflict arises in the future. Otherwise, you may lose the client, forfeit your fees and still get sued.” • Carefully review engagement letters. Engagement letters should be reviewed carefully so the scope of the work is clear, Critchlow says. • Avoid ‘engagement creep.’ “If the engagement letter says the scope of the

Deborah Corbishley, Richard Critchlow and Elizabeth Honkonen

engagement is X, don’t take on tasks related to Y,” says Corbishley. “Although clients have high expectations, you need to take the time to formalize each new engagement and clearly set forth the scope of what you have been asked to do.” • Document the client’s decisions. “When you pick up the phone and talk to a client, document the discussion in writing,” Critchlow says. “That’s very important because there can be vast differences in recollections.” • Be thoughtful of internal emails as well as external communications. “Many lawyers will say things to their colleagues that could be damaging in a lawsuit,” says Critchlow. “Think about whether or not you would want to see it on the front page of the newspaper – or if you’d want your mother to read it,” adds Honkonen. • Tell the client if you make a mistake. Nobody likes to communicate the bad news, but you have let your client know right away, Critchlow says. “You also need to communicate with your loss prevention group so they are aware of the issue.” • Don’t panic when facing a problem. “Nobody makes good decisions when feeling emotional pressure,” Corbishley says. “Sometimes, it’s not the error but the response to an error that gets a lawyer sued.” • Look at the ethical issues. A plaintiff may bring in an expert that says the attorney violated the rules of professional conduct. Even though that’s not cause for a suit, you need to be prepared to address that issue. Finally, an attorney should be prepared to end a bad engagement, even if it results in a financial loss. “If you sue a client for a fee, be ready to defend a counterclaim for malpractice,” says Critchlow. “Even if you didn’t do anything wrong, that suit will cost you time and money and distract you from your law practice. Do what you can to collect your debt, but at a certain point, close the file and consider it a lesson for the future.” SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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INTERNATIONAL TAX AND WEALTH MANAGEMENT

TRENDS IN INTERNATIONAL TAX AND WEALTH MANAGEMENT Have the ‘Panama Papers’ Changed the Landscape?

FOR MANY DECADES, foreign nationals have turned to South Florida professionals for financial, tax and estate planning, as well as investment and wealth management services. To examine current trends and practices in this important sector – including the impact of the “Panama Papers” this spring – South Florida Legal Guide editor Richard Westlund interviewed several attorneys and bankers who practice in these fields: • D wight Hill, president, Sabadell Bank United • Kevin Packman, partner at Holland & Knight • Orlando Roche, regional president, Sabadell Bank & Trust, Miami-Dade County • Francis E. “Frank” Rodríguez, managing partner at Shutts & Bowen’s Miami office • Michael Rosenberg , of counsel at Packman, Neuwahl & Rosenberg Here are their insights and observations on serving affluent international clients. Q. Are the sources of international investors changing this year?

Orlando Roche and Dwight Hill

see an increase in U.S. investment and U.S. immigration. Roche: Miami has always been an international city, attracting wealth from Latin America, Europe and other global locations. As for Asian investment, to date that has been concentrated in real estate and commercial projects, rather than personal wealth management.

Rodríguez: The sources of international

Q. What other trends are you seeing in the market?

investment in South Florida change over time due to political, economic and currency trends. We have seen a downturn from Brazil and Venezuela and greater inflows from Colombia and Mexico, where some individuals are seeking to diversify their investments in the U.S. On the other hand, some foreign clients willing to take a risk are looking for investment opportunities in Venezuela because of the strong dollar. Rosenberg: Our experience has been to see foreign investment in the U.S. from all countries throughout the world. But whenever a particular country runs into economic or political problems, we generally

Rodríguez: Many of our clients come to the U.S. on a temporary or permanent basis. They may have existing businesses in home countries, and try to replicate that in South Florida. For example, a client with a car dealership, a restaurant chain or a hotel in Latin America might want to buy a similar business in the U.S. Others want to establish a business that complements one in their home country, such as self-storage facilities, textile manufacturing, heavy equipment distribution, electronics, and household goods. In any case, they should consider whether they want to establish a beachhead in the U.S., relocate here, or simply diversify

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SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

their investments by putting funds into a safe haven. Rosenberg: Some foreign clients have had to deal with certain Bureau of Economic Affairs (BEA) forms and the extensive reporting as to foreign assets within certain U.S. structures, That may, in time, adversely impact foreign investment although only time will tell. Another major current trend is foreign clients who are modifying their existing investment structures to make them transparent for home country compliance purposes. Packman: Most foreign nationals who come to South Florida don’t know their long-term goals. For example, they might work here for a few years, and bring along their family members. Then, the kids start school and Miami starts to feel like home. So even though they may have thought the initial visit would be short term, the U.S. eventually becomes their home. Consequently, the planning for a foreign national who lives in the U.S. a few years is different than the planning for a foreign national who will make the U.S. his/her home.


INTERNATIONAL TAX AND WEALTH MANAGEMENT

Kevin E. Packman

Roche: We are seeing sophisticated entrepreneurs and executives investing in Miami real estate, technology companies and other ventures. However, Miami needs to invest in transportation and education, as well as creating more jobs to support these investments. Today, a lot of smart money is coming here and making a bet on Miami, and I think that trend will only intensify.

Q. Where are they investing their funds? Roche: Many of our clients are actively involved in risk-taking business ventures. When it comes to wealth management, their goal is to protect their wealth. While they want to achieve the highest possible returns without volatility, capital preservation is usually the top priority. We believe in building a portfolio of assets that complement each other. We also take a disciplined approach to rebalancing those portfolios. As a result, we have been able to deliver returns of 7 to 8 percent a year with little volatility, achieving the goal of wealth preservation. Hill: Along the same lines, we don’t believe in trying to time the market. Some investors rush into funds that are “hot” in an effort to generate higher returns. However, multigenerational families, like institutions and foundations have longer time horizons, and their portfolios can accommodate assets with a greater hold period such as real estate, timber and mineral rights. Rosenberg: We continue to see most foreign investors place funds into U.S. real estate, primarily as vacation homes or possibly eventual permanent homes if and when they ultimately settle in Florida, In addition, many foreigners place parts of their investments in U.S. securities accounts

such as stocks and bonds. Many foreigners who utilize appropriate immigration visas as an entrance to the U.S. eventually grow their businesses and seek out commercial property as well, oftentimes via leasing but with plenty purchasing commercial property from which their new Florida business can be operated. Depending on the strength of a foreign investor’s home country currency and the inflation factor, foreign investors may vary their investment strategies but my experience is that more often than not, conservative “safe” assets are more desirable. Rodríguez: We have a saying in our tax practice that all the inbound investment eventually becomes outbound. A typical pattern is that someone from Brazil or Mexico moves here and then establishes U.S. residency. Then that individual is considered a U.S. taxpayer and the international assets are now outbound investments from a U.S. tax perspective. Q. How are U.S. disclosure and compliance requirements affecting international investors? Rodríguez: It is becoming more difficult for

foreign individuals to open bank accounts in the U.S. We have clients who want to invest in U.S. assets with other partners, and some of those structures require opening a domestic bank account. On the other hand, disclosure issues in their home countries are not a bar for investment and may actually encourage more foreign nationals to move here and enjoy a different lifestyle. Packman: U.S. voluntary disclosure programs are a concern for many wealthy Latin Americans with a U.S. connection. The issue is not taxes – it’s the safety of the family, particularly in countries where the government or police force can’t necessarily be trusted. I have clients who have been kidnapped with their family members and held for ransom, so I know the importance of personal safety. Many foreigners hold assets outside of their home for pure safety. Rosenberg: As the entire world continues to focus on compliance and disclosure, thus making compliance with one’s own tax laws a reality, many such foreign persons no longer see the U.S. substantive and

procedural tax rules to be as burdensome as they once did. The stability, democracy, freedom, beauty and opportunity for “anyone to succeed,” now leads such persons to conclude that the U.S. is in fact the right place to now establish permanent residence and domicile status. Q. Any impact from the Panama Papers? Rosenberg: As is the case with most law

firms and CPA firms that handle tax matters, we are continuing to see a constant and increased flow of U.S. persons participating in the Offshore Voluntary Compliance Initiatives (OVDIs). One can only assume that with FATCA, CRS, the Panama Papers and likely similar developments in other countries, this “flood” of compliance work will continue some time into the future. Packman: The Panama Papers is a mediadriven story. There is a huge difference between tax evasion, which is totally illegal, and tax minimization strategies that are fully compliant with U.S. laws and regulations. In some cases, offshore entities can serve a distinct purpose; they are not automatically wrong. Of course, I am not naïve enough to believe that all of the entities are compliant in their respective owners jurisdictions. Rodríguez: After publication of the Panama Papers, some clients are looking for other international jurisdictions with a stable economy for their foreign entities. The flip side is the practical issue of cyber security, as it was a hacker who broke into the Panama law firm’s files and put the information online. Law firms, accounting firms, banks and financial managers deal with confidential information every day, both locally and externally. It’s important to remember that once you turn over information, your client’s confidentiality is only as good as your partner’s security. Q. What are the biggest mistakes you see your clients make? Hill: Many foreign nationals don’t recognize

that business is done differently in the U.S. than their home country. That’s why it’s so important to work with an advisor who can explain how things work here. SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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INTERNATIONAL TAX AND WEALTH MANAGEMENT

Francis E. “Frank” Rodríguez

Roche: Affluent foreign nationals should

also realize that returns on U.S. assets many differ from those at home. Moving funds here can change the overall return profile of a portfolio. Currency fluctuations also need to be taken into account. Packman: The biggest mistake is purchasing real estate or investing in other assets without getting professional advice first. For example, if a foreign national becomes a U.S. resident, that person is subject to tax on the gains of assets purchased prior to becoming a resident. Therefore, it might be advisable for a foreign national to liquidate those assets first, and then buy them back at the current price either before or after establishing residency. If someone has ownership of multiple entities, a professional can advise on restructuring them in a U.S.-friendly tax manner. Rodríguez: The U.S. is considered a very safe destination for investment with a strong legal structure and a low rate of inflation . However, that reduced risk comes with higher costs and lower returns. One of the higher costs is that the professional fees for service providers may be different than in other jurisdictions where laws are not as well developed. So, someone might initiate a business here without realizing the complexities. It then can be difficult to undo those actions, and there may be tax consequences. 26

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Rosenberg: Too often, the foreign client

coordinated services for the client.

just wants a fast way to find access to the U.S. and does not sufficiently analyze the business aspects of the investment. Some are very sorry at the end of the day while others accept that risk as their driving force in the first place was having an investment to help get appropriate immigration status in the U.S. Also, we too often see situations where a foreigner who did not get the appropriate U.S. tax advice in advance, eventually learns that the favorable long-term capital gain treatment he or she expected might not be available, or the family of a now deceased foreign investor finds how costly the U.S. estate tax can be. Poor advice when structuring planning strategies or failing to follow through with the requirements of wellplanned structures can prove costly.

Packman: I don’t think you can do proper

Q. How do you work with other professionals, such as attorneys, accountants and family office managers, to serve your clients? Rodríguez: South Florida professionals

need to do everything they can to prepare their foreign clients for the cultural, regulatory and economic differences in the U.S. To take just one example, foreign nationals should look at the issues associated with acquiring an operating business versus a passive investment. An active business might deliver higher potential returns and also provide individual immigration benefits such as an L-1 or E-2 visa. A passive investment, such as a real estate fund, won’t necessarily provide the same benefits, but it might be more tax efficient. Hill: International wealth management typically involves a team. That might include an international banker, insurance specialists, attorneys who can advise with tax planning, immigration and legal structures, as well as a CPA who knows the U.S. tax system. Roche: We are usually one of many wealth advisors for our clients. We do the banking, investments and trusts, bringing in the experience in insurance, tax and accounting professionals. A real estate or estate planning attorney may also be involved in structuring a residential or commercial investment. We try to lead a team or professionals who provide

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

international tax planning without using a professional in the client’s home jurisdiction. Of course, the opposite is also true, as foreign nationals need to work with a U.S. professional who understands the nuances of our tax code. It really does take a team approach to meeting the needs of wealthy international clients. Rosenberg: We have always cautioned our foreign investor clients as to the importance of our being able to coordinate with such investor’s foreign advisors. In addition, if a foreign client comes to our office without already having certain other U.S. professional needs in place, we will suggest that the client consider an appropriate CPA, attorney (should advice be needed in legal areas outside our firm’s expertise), bankers, investment advisors, realtors and in some instances, a family office manager. Q. Do you see continuing demand for “high-touch” concierge services, or has that diminished in the age of technology? Roche: You need to deliver both high-tech

and high touch. Some clients need a personal relationship for guidance, but technology is a big part in communicating today. Hill: We want clients to access our bank in the way they prefer. Some want that personal touch with face-to-face meetings, while other like to self-serve the information they need. They key for wealth managers today is to provide both in a seamless way. Packman: I have many clients I’ve never met face to face. Our office is set up to hold videoconferences with clients in Latin America and other locations, and our firm has offices in Colombia and Mexico. However, many Latin American clients prefer to fly here and meet in Miami to discuss U.S. tax and compliance issues. Rodríguez: Technology affects how we do business. In the past, things moved more slowly and there were more face-to-face meetings. Now, we deal with a lot of foreign clients using videoconferencing. While I travel often to Latin America, most clients prefer to see me here in Miami.


INTERNATIONAL TAX AND WEALTH MANAGEMENT

Dwight Hill is president of Sabadell United Bank, N.A. a locally managed, nationally chartered banking institution that serves over 40,000 clients through its branch network in Florida. Previously, Hill was executive vice president of professionals and business banking at Sabadell, overseeing all business development staff, strategic planning, and implementation of new services. Kevin E. Packman is a partner with Holland & Knight and a member of its International Estate Planning Group, an integral part of the firm’s Private Wealth Services Department. He also chairs the firm’s Offshore Compliance Team. His practice includes tax controversies, estate planning (domestic and international) and creditor protection planning. He is also recognized as a national leader in the area of Foreign Bank and Financial Accounts Reporting.

Michael Rosenberg

Rosenberg: Although I have seen some

concierge-service arrangements over the years, I have not found this to be a major need in the lives of my foreign clients. Q. Are there any best practices or other advice you can offer for working with high-net-worth individuals and families? Packman: It’s amazing how many

foreigners in South Florida (and other major U.S. cities) don’t realize they are U.S. taxpayers. They all seem to be aware of the 183-day rule, but not the three-year rolling average test. Accountants who prepare tax returns for their clients should look carefully at the individual’s status and be prepared to address everything. Hill: Many foreign nationals don’t think they can get loans on their acquisitions here. That’s simply not the case. While there are underwriting challenges, they can get loans at 4 to 5 percent, for example, compared with 8 to 10 percent at home. That means it may make sense to finance a U.S. real estate acquisition with a U.S. loan. Rosenberg: When I was about 12, my family was driving from Brooklyn for a vacation in upstate New York passing one motel after another. Then my grandfather who came from Poland and barely spoke a word of English said something from the

back of the car and my father could not stop laughing. He told me, “Grandpa just asked if Mr. Motel was the richest man in the world! So, make certain that your high-net-worth individual and family clients fully understand all you discuss with them. Too often, they will “yes you to death,” but not completely understand what you had explained to them. If English is not their primary language, ask them to have someone present at your meetings who can translate. Obviously, make sure that the attorney-client privilege is maintained. Another alternative is to get the client to consent to have your advice translated into English. Any additional thoughts? Rosenberg: Every U.S. professional advisor

should do all he or she can to make certain that his or her foreign clients are complying with the laws of their foreign countries. Try to make certain that the client is not doing something back home that can come back to haunt the U.S. advisor. Packman: Being a generalist in your profession does not apply to the international wealth management. You need to focus your practice in this field. Rodríguez: The secrets to success in serving this market are hard work, building a good reputation, being accessible, and delivering consistent value to clients.

Orlando Roche is the regional president of Sabadell Bank & Trust Miami-Dade County. He is responsible for overseeing private banking, wealth management and fiduciary services within the region. Roche has more than 26 years of experience in private wealth management. Francis E. “Frank” Rodríguez, is the managing partner in the Miami office of Shutts & Bowen LLP, where he is a member of the Tax and International Law Practice Group. He is also chair of the firm’s Latin America Practice Group. He represents non-resident individuals and foreign corporations with inbound tax planning, and U.S. individuals and domestic corporations with outbound tax planning. He counsels international families in succession planning, trust issues, and federal tax reporting, including voluntary self-disclosures. Michael Rosenberg is of counsel at Packman, Neuwahl & Rosenberg in Miami who has developed a substantial international taxation practice concentrating on foreign persons investing in, doing business in, and immigrating to the U.S., and U.S. persons investing in, doing business in, or expatriating to foreign countries. He was formerly was formerly the International Tax Manager of the Touche Ross & Co. office in Miami (prior to its merger into Deloitte & Touche) and was a member of its U.S. International Tax Group. SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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GUEST CONTRIBUTORS

PROTECTING EMPLOYER DATA FROM EMPLOYEE THEFT New federal and state laws grant needed remedies for employers By Stephen H. Wagner and Allan A. Joseph

A COMPANY’S PROTECTED business information is frequently one of its most valuable assets. Despite expensively drafted employment agreements protecting the sanctity and confidentiality of such data, discharged employees still improperly mine the company’s computer systems, and the results can be highly damaging: customer lists, pricing data, plans and designs pilfered and handed to competitors. Thanks to recently enacted legislation both at the federal and state level, companies are better able to obtain strong judicial remedies to protect their proprietary information. 30

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New Federal Protections On May 11, 2016, the Defend Trade Secrets Act (DTSA) was signed into law, and becomes the first federal statute that enables companies to enforce their trade secret rights. Prior to the DTSA, trade secrets were protected only through state statutes, usually a version of the Uniform Trade Secrets Act (UTSA). This patchwork of UTSA laws – and inconsistencies between the laws of the various states – often made it difficult for cross-border companies to pursue malfeasant employees for misappropriation of trade secrets. The DTSA, however, creates a single, federal legal platform to remedy the theft of trade secrets.

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

The new federal statute creates new powers and removes barriers for companies seeking to protect their data. For example, under most state UTSA laws, companies are required to disclose, prior to discovery, each trade secret at issue in litigation. The impact of this counter-intuitive requirement frequently quells the very enforcement of the laws were intended to protect. The DTSA contains no such disclosure requirement, which alone facilitates the ability to enforce the laws. The DTSA also eschews the inevitable disclosure doctrine – merely possessing knowledge of a trade secret as a basis for obtaining injunctions to prevent former employees from working for competitors. Now, if an employer has “evidence of threatened misappropriation” of trade secrets, the employee can be enjoined from certain future employment even if the disclosure has not yet been made. Of course, it is unclear whether the judicial bench will enforce the broad-brush scope of the legislation and keep employees out of work, something that the bench is loath to do. Indeed, the DTSA specifically does not govern traditional non-compete agreements, and this the courts will be asked to enforce the DTSA as additional remedies to state restrictive covenant laws. One of the more extraordinary powers under the DTSA is the allowance for “ex parte seizures” as a means to prevent the further dissemination of misappropriated trade secrets. Without any notice to the culprit, the DTSA allows trade secret owners to request that courts issue an order allowing law enforcement to seize stolen trade secrets (e.g., computer files, documents). There are built-in measures to curb abuse of this power, but when flight risk of the culprit or the severe harm to a company that comes with a massive misappropriation of trade


secrets is present, the ex parte seizure gives companies the power to immediately halt the further spread of stolen information. New Protections in Florida The DTSA is intended to supplement – not preempt – state laws. In Florida, this means that the DTSA can work for employers in conjunction not only with the Florida UTSA (Fla. Stat. §§ 688.001–009), but also several new laws designed to protect companies from the misappropriation of its sensitive data. On October 1, 2015, Florida’s Computer Abuse and Data Recovery Act (Fla. Stat. §§ 668.801–805) (CADRA) went into effect. Under CADRA, businesses can obtain relief from employees (and other individuals) who knowingly, and with intent to cause harm, obtain information from a covered computer without authorization. Companies bringing suit under CADRA may recover damages, lost profits, and profits gained by the employee from their unauthorized access. Companies are also entitled to seek injunction to prevent further violations and recover reasonable attorney’s fees if they prevail in the action. Armed with protections under CADRA, companies are now able to obtain relief from former employees that do not return data upon termination, or current or former employees who are misusing their data access. CADRA is expected to be widely used as a litigation tool because prior to its enactment, Florida employers could only rely on the Computer Crimes Act (Fla. Stat. §§ 815.01-07), which allowed for civil action and recoveries only if a person has already been criminally convicted under the act. Requirements for Employers Each of these new federal and state laws carries certain requirements that employers must meet in order to obtain full benefit of their protections. Under CADRA, for example, employers must have “technological access barriers” in place on its computer systems to restrict access to data, and define parameters of an employee’s “authorized access” along with notifying employees when such access has been revoked. Under both CADRA and DTSA,

companies must also have their policies and procedures in place, which will likely require revising employment agreements and handbooks to ensure accurate and clearly defined data access parameters and to provide mandated notices. For example, under DTSA, notices of whistleblowing immunity must be given in employee trade secret agreements to ensure the maximum recovery. Moreover, careful attention to jurisdiction clauses should be given to these agreements, since DTSA cases must be brought in federal courts. Finally, employers should monitor computer systems for unauthorized employee access and discipline employees for any violation, steps that will

strengthen court cases seeking to enforce company rights. Justice has taken time for the laws to catch up to the 21st century, but DTSA and CADRA afford welcome relief and long overdue protection for the lifeblood of companies. The combination of these new laws provide needed ammunition for employers to remedy the misappropriation of data that is often the lifeblood of companies. While companies have responsibilities, too, under these laws, revamping employment contracts as well as employee policies and procedures is a small price to pay to stem the proliferation of employee computer hacking and corporate espionage.

Left: Allan A. Joseph is a founding member of Fuerst Ittleman David & Joseph, PL. Since 1991, Mr. Joseph has concentrated his practice on business-related disputes, including Complex Commercial Litigation, Business Litigation, Business Torts, Insurance Litigation, Real Estate Litigation, Shareholder and Member Derivative Actions, Intellectual Property Law, Alternative Disputes Resolutions Practice, International Law Litigation, Professional Malpractice Litigation, Civil Litigation, and Domestic Relations Litigation. Right: Stephen H. Wagner is a Partner with Fuerst Ittleman David & Joseph, PL. He practices primarily in the area of international business transactions, representing clients with trade and customs issues as well as corporate law matters. Joseph and Wagner can be reached at 1001 Brickell Bay Dr., 32nd Floor Miami, FL 33131 or (305-350-5690), www.fuerstlaw.com

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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GUEST CONTRIBUTORS

U.S. SUPREME COURT DECISION OPENS DOOR TO CONGRESSIONAL RELIEF IN JUDGMENT COLLECTION FOR SELECT CASES By Andrew C. Hall

ON APRIL 20, 2016, the Supreme Court of the United States, in Bank Markazi v. Peterson, 136 S.Ct. 1310 (2016), determined that Congress had the authority to enact a law specifically designating a set of assets to be available to satisfy judgments for existing cases enumerated by case number. This decision expands the need for effective advocacy to include lobbying Congress for relief as to the revision of existing law as applied to existing cases. The fundamental legal issue that was presented in Bank Markazi was whether Congressional legislation that established what assets may or may not be available

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to satisfy specific existing judgments wrongfully interfered with the independence of the judiciary as required under Article 3 of the Constitution, and its ancient right to declare what the law is in particular cases, as established in Marbury v. Madison, 5 U.S. 137 (1803). The Supreme Court concluded that while Article 3 barred Congress from telling a court how to apply preexisting law to a particular case, Congress could amend preexisting law to provide new legal standards and make the amended law retroactively applicable to pending cases. Further, the Supreme Court reasoned that the amended statute was not designed to

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

compel ruling in a single pending case, which would be prohibited. In light of this holding, Congress is free to change the law and set a new legal standards applicable retroactively to a small class of existing cases. However, the line between what is prohibited and what is not prohibited is very thin. It is not unusual to see the use of a legislative solution to repair a problem in the enforcement of existing law, even applied retroactively, particularly in the area of international relations. For example, the Court of Appeals for the District of Colombia Circuit, in Cicippio-Puleo v.


Islamic Republic of Iran, 353 F.3d 1024 (D.C. Cir. 2004), ruled that while the terrorism exception to the Foreign Sovereign Immunities Act, 28 U.S.C. § 1605(a)(7), provided jurisdiction over state sponsors of terrorism for acts of terrorism, it did not create a cause of action. That decision left courts and litigants scrambling to determine what law would apply to any given claim and who could have standing. To fill this gap, a number of courts began to use the laws of the domicile of the deceased victim of terrorism as the proxy for what law should be applied to acts of terrorism that occurred within foreign countries. Further, where family members were seeking recovery for pain and suffering, they would do so under the common law causes of action for intentional affliction of emotional distress in the decedents’ home state, ignoring the fact that for a number of claimants such causes of action could not be established. To avoid the continuing confusion that arose from the applicability of a variety of state law doctrines in the context of an act of state sponsored terrorism occurring outside of the United, in 2008, Congress amended the Foreign Sovereign Immunities Act to create a new cause of action for damages available to victims of terrorism, 28 U.S.C. § 1605A, which was given retroactive application. Significantly, family members including those persons not typically included within the ambit of a traditional wrongful death action, were included. For example, victims including siblings and non-supported parents of adult children now had claims. The importance of this newest decision reflects how narrow that legislative repair can be. Specifically, in the Bank Markazi case, the issue applied to 16 separate lawsuits and was targeted to permit seizure of Iranian bank accounts of $1.8 billion deposited by Bank Markazi in the United States when it was acting as the central bank of Iran. On past occasions, Congress has acted similarly in order to provide very specific relief for specific cases. For example, as Senator Connie Mack was departing the U.S. Senate, he introduced and worked

Andrew C. Hall is the founder and managing partner of Hall, Lamb and Hall, P.A., a Miamibased 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) 374-5030, www.hlhlawfirm.com

to pass a bill that specifically provided that a limited number of cases identified expressly by case number, which had already gone to judgment, could be satisfied from the United States’ funds and then be immediately reimbursed from frozen assets within the United States of state sponsors of terrorism. That bill was not attacked by the state sponsors of terrorism to which it applied. Following the Bank Markazi decision, it is now clear that this type of legislative remedy is a real avenue of relief for preexisting cases.

When embarking on litigation involving matters of international law, including claims against sovereigns under the Foreign Sovereign Immunities Act, a practitioner should consider pursuing a legislative solution for judgment collection as a viable and achievable avenue of relief. Following the path authorized in Bank Markazi, efforts undertaken to amend existing laws to achieve such objectives should be deemed consistent with policy of existing law, clearing the way for resolutions that might be otherwise foreclosed by precedent. SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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GUEST CONTRIBUTORS

5 MOST COMMON MEDICAL MISTAKES AND HOW YOU CAN AVOID BEING A MEDICAL MISTAKE VICTIM By John Elliott Leighton

ACCORDING TO the Centers for Disease Control and Prevention (CDC), the three leading causes of death in the United States are heart disease, cancer, and chronic lower respiratory diseases. However, a recent study by Johns Hopkins School of Medicine suggests that there is another culprit, not tracked by the CDC, which surpasses respiratory disease and ranks as the thirdleading cause of death in this country. Not only does it account for more than 250,000 American deaths annually – roughly the equivalent of two Boeing 747 airplanes crashing each day and killing every passenger onboard – but it is also almost entirely preventable. Medical mistakes are now recognized as the third leading cause of death in this country. They come in many forms and in all fields of medicine. The one common factor is that they are avoidable. They occur because of human or institutional error. Each year, more than 4,000 preventable

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mistakes occur in surgery. Researchers often refer to these errors as “never events” because they are the kinds of mistakes that should never occur. They include such careless blunders as leaving a medical tool (such as a sponge) inside a patient’s body, performing the wrong procedure, and performing a surgery on the wrong body part or the wrong person. It is horrifying to consider that surgeons make these kinds of mistakes at all, but the numbers are even more appalling. The most recent Johns Hopkins study estimates that each week surgeons will leave a foreign object inside a patient’s body 39 times, perform the incorrect procedure 20 times, and operate on the wrong body part 20 times. Other studies have placed the number of American deaths even higher at 440,000 annually. ( Journal of Patient Safety, 2013) Some of these are simply careless mistakes, and some are the result of a deeper, institutional problem. Thousands of doctors

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are on medical probation, some of whom practice under the influence of drugs or alcohol. USA Today found that more than 100,000 doctors, nurses, technicians, and other health professionals struggle with drug abuse or addiction. These preventable mistakes are happening with astounding frequency and these numbers do not even reflect the millions of injuries, only American deaths. If this was a war and the body count was anywhere close to this, would we stand by quietly? As patients we can be a catalyst for change. Simply knowing what to look for can help reduce these numbers. We’ve compiled a list of the five most common medical errors, and give tips on how to best avoid them. After all, a patient should never leave the hospital feeling worse than when they arrived. 1. Medication Mistakes: Don’t assume the hospital has it right.


The Johns Hopkins study revealed deeper, systemic issues within hospitals that can often lead to medication mistakes. A lack of communication among departments, or doctors and nurses changing shifts, can result in missed medication or improper administration. In some situations, patients received drugs known to cause dangerous reactions Instead of blindly following doctors’ orders, review your records to be sure that the hospital has your correct and most recent medical history. Bring your prescription bottles to the hospital with you (or take photos of the labels) to eliminate questions about what you are taking. Ask the doctor or nurse about interactions with other drugs you are taking. Even check online yourself to see if there is a known interaction (See: www. drugs.com/drug_interactions.html). 2. Infections: Hand sanitizer is your friend. Each year 1.7 million people acquire infections from the hospital that are unrelated to the reason for their original visit. These range from pneumonia, to urinary infections from catheters, to bloodstream infections from IVs. Fortunately, this problem has a straightforward solution. Wash your hands often, and ask your doctors and nurses to do the same. If you’re staying in the same room for a few days, ask that frequently touched areas be disinfected. (While a room is routinely washed between patients, this task may be haphazardly overlooked if you’re there for more than a day or two). 3. Never Events: Ask questions and be the “difficult patient.” Between 1990 and 2010 an estimated 80,000 “never events” occurred in surgeries in hospitals across the United States. This number likely underestimates the problem, as the study did not account for surgeries at ambulatory surgical centers or physicians’ offices. So how do we, as patients, take every step necessary to prevent errors that should never even be a concern to us? Before being administered anesthesia, take time to meet with the entire team that will

be operating. Point out (don’t just say aloud) which part of your body should receive treatment, and have your surgeon initial that spot. Remind your doctor to use a checklist to count equipment before and after the operation. Ask them exactly what they will be doing and who will be doing it (it is not unusual for the doctor you meet with to be different than the one who treats you while in surgery, sometimes known as “ghost surgery”). 4. Misdiagnosis: Two heads are better than one. Mistakes in diagnoses are the most common type of medical error. Since the wrong diagnosis can delay treatment you may need, or even introduce medication that exacerbates your problem, determining your true condition is key. Sometimes, a second set of eyes and ears is all that is needed. Before moving forward with treatment, visit a different doctor to get another opinion. If they agree, you can move forward with more confidence. If not, go back and get additional opinions. 5. Unnecessary tests or treatment: Find out the purpose. Each year $700 billion is spent on tests and treatments that are unnecessary. But your wallet isn’t the only thing at risk; CT scans and MRIs can cause kidney failures, x-rays expose you to radiation, and even simply drawing blood can increase your risk of an infection. In order to protect yourself, ask your doctor why a procedure is necessary and if there are any other options. Unfortunately, there are many ways to be injured or killed through medical treatment. Most health care providers are competent and skilled. In fact, since 1990, only 2% of doctors nationwide have been responsible for 50% of total malpractice payouts. For those who err, the results of their mistakes can be catastrophic. Ironically, while medical mistakes have grown to the third leading cause of death in America, medical malpractice cases are at historic lows because of legislatively created statutes inhibiting victims’ rights as

John Elliot Leighton is a board certified trial lawyer and managing partner of Leighton Law, P.A., a trial law firm with offices in Miami and Orlando. He is listed in “The Best Lawyers in America” for medical malpractice, personal injury and product liability litigation for plaintiffs. www.LeightonLaw.com

well as an astoundingly low rate of physicians maintaining liability insurance. So while the medical carnage continues, those wreaking havoc fail to provide the financial responsibility necessary to help compensate their victims. Which makes it all the more essential to take control over your medical care and prevent errors from happening in the first place.

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GUEST CONTRIBUTORS

SOUTH FLORIDA UNDER THE REGULATORY SPOTLIGHT By Mindy Baer

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MONEY LAUNDERING has been a worldwide issue for decades, and the reality is that money laundering is a common practice and a big problem in South Florida. Due to the international nature of our city, Miami is being targeted by law enforcement and other regulatory agencies in an effort to crackdown on money laundering. The past few years have been a busy time for regulators and government agencies throughout the U.S., and especially in South Florida. From the three Geographic Targeting Orders (GTOs) issued by FinCEN, one of the U.S. Department of Treasury’s lead agencies in the fight against money laundering, targeting South Florida businesses, to the Panama Papers, the bottom line is that banks are required to ask more questions. The three GTOs issued in South Florida impacted title companies handling all cash deals in real estate purchased by entities in MiamiDade County, businesses cashing tax refund checks in Miami-Dade and Broward counties, and importers and exporters of electronics accepting cash payments in Doral. More recently, the Panama Papers exposed how wealthy individuals, political officials, and criminals may use offshore entities for illegal purposes, such as avoiding taxes, avoiding sanctions, and laundering money. While creating offshore entities is not an automatic indicator of illegal activity -- they can have legitimate tax and estate planning purposes; their use should trigger some additional questions. For banks, these types of entities require additional scrutiny around the purpose, control, and beneficial owners. The U. S. government is one of the world’s strongest advocates for cracking down on money laundering, yet the U.S. is one of the easiest places in the world to set up the anonymous companies that facilitate it. However, times are changing. On May 11, 2016, the U.S. Department of Treasury finalized the Customer Due Diligence (CDD) rule, requiring financial institutions to collect and verify the personal information of beneficial owners who own or control 25 percent or more of an entity opening an account. The three core requirements of the final rule include: 1. Identifying and verifying the identity of

the beneficial owners of companies opening accounts; 2. Understanding the nature and purpose of customer relationships to develop customer risk profiles; and 3. Conducting ongoing monitoring to identify and report suspicious transactions and, on a risk basis, to maintain and update customer information. This is not a surprise to most financial institutions in South Florida; rather, it formalizes the expectations of our regulators in this area and makes non-compliance a violation of law. Additional legislation has also been proposed by the Treasury Department related to beneficial ownership, requiring all companies to report beneficial ownership information at the time of a company’s creation to FinCEN, so it can be made available to law enforcement. Furthermore, the U.S. Treasury has proposed regulations for foreign-owned single-member LLCs and other foreign-owned “disregarded entities” to force them to obtain an Employer Identification Number from the IRS and report information to determine if there is any tax liability. The IRS will also share this information with other tax authorities around the world. This proposed regulation is another step toward global tax governance. During 2015 alone, U S banks were fined more than $173 million related to BSA issues. South Florida banks must remain vigilant and ask the necessary questions to avoid potential regulatory scrutiny or possible fines. South Florida banks receive more attention from regulators than others as a result of several factors including the international nature of our area and the prevalence of fraud and identity theft. Banks are required to possess accurate information regarding the identities of customers, the purpose and expected usage of an account, and the financial activity going through the bank. This requires asking more questions in the beginning and throughout the relationship, digging deeper and thoroughly documenting activity. We will continue to see more regulations and regulatory scrutiny in the future as criminals are constantly finding new ways to launder money. Banks must remain in the forefront of these efforts to be successful.

Mindy Baer is the SVP BSA / AML Officer for Sabadell United Bank. She is responsible for overall compliance with the Bank Secrecy Act and anti-money laundering efforts of the Bank. She oversees OFAC compliance, CIP/KYC/EDD for customers, transaction monitoring, investigations, and suspicious activity reporting. She also strategizes with executive management to determine an acceptable customer risk level for the Bank, and fosters ongoing relationships with other departments to ensure an understanding of AML responsibility and accountability. She earned a bachelor’s degree from USF in accounting, an MBA from FAU and is a Certified Anti-Money Laundering Specialist (CAMS), Certified Internal Auditor (CIA), and Certified Financial Services Auditor (CFSA). Baer can be reached at Mindy.baer@ sabadellbank.com - www.sabadellbank.com

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GUEST CONTRIBUTORS

CHALLENGES UNDER THE FSIA WITH RESPECT TO RECOVERING FOR EXPROPRIATED PROPERTIES IN CUBA By Christian Garcia

THROUGH VARIOUS actions and enactments, Fidel Castro expropriated the private property of U.S. citizens without compensation. In a lawsuit against Cuba for the expropriation of property, how does one overcome sovereign immunity? This article discusses some of the difficulties in overcoming sovereign immunity in a suit to recover from the Cuban government for the expropriation of private property. 38

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Traditionally, the United States has considered foreign sovereigns immune from legal action in U.S. courts.1 In 1976, the U.S. Congress enacted the Foreign Sovereign Immunities Act (FSIA), statutorily codifying and creating limitations of liability on a foreign sovereign.2 The FSIA provides that “a foreign state shall be immune from the jurisdiction of the courts of the U.S. and of the States” unless an exception applies.3 In a claim against Cuba regarding expropriation of property, a court would need to determine whether the FSIA applies to Cuba.4 Then, a plaintiff would have the burden of establishing the application of an FSIA exception. One glaring challenge to a plaintiff may be that Cuba raises a statute of limitations defense, given that many expropriations took place more than 50 years ago. Setting aside the statute of limitations issue for purposes of this article, the applicable exceptions under the FSIA in non-terrorism actions5 against foreign sovereigns for the expropriation of property have generally been limited. These exceptions are the expropriation exception and the commercial exception.6 To apply the expropriation exception in a suit against Cuba for expropriation of property, a plaintiff would need to establish three elements: (1) that property rights are at issue, (2) those rights were taken in violation of international law, and (3) there exists a jurisdictional nexus between the expropriation and the U.S.7 While a plaintiff may establish plaintiff’s rights in expropriated property as former owner and that the taking was in violation of international law, the challenge would be establishing a nexus with the U.S. It is possible to argue that an expropriation of private property is a violation of international law if there is a failure to pay compensation for the taking. 8 To date, the Cuban government has not compensated claimants. 9 Yet, establishing a nexus between the Cuban expropriation and the U.S. may prove exceptionally challenging because the subject properties were expropriated in Cuba by the Cuban government. To apply the commercial exception to the FSIA, a plaintiff must establish that the offending act was “based upon a commercial

activity carried on in the United States by the foreign state; or upon an act performed in the United States in connection with a commercial activity of the foreign state elsewhere; or upon an act outside the territory of the United States in connection with a commercial activity of the foreign state elsewhere and that act causes a direct effect in the United States.” 10 A plaintiff may find it challenging to establish a commercial activity in the U.S. on behalf of Cuba in relation to the expropriated property, or that expropriating property in Cuba is a commercial act that had a direct effect inside of the U.S. Thus, it may be that a plaintiff may find it difficult to apply the commercial exception. The exceptions to the FSIA are clearly narrow, but filing suit in a U.S. court has not been the only avenue of recourse for those who lost property to the Cuban government. Under Title V of the International Claims Settlement Act of 1949, Congress authorized the Foreign Claims Settlement Commission (FCSC) to review and certify as legitimate the claims of U.S. nationals against the government of Cuba for the expropriation of property.11 To date, the FCSC has reviewed nearly 6,000 claims that are valued at approximately $1.9 billion.12 As of today, the claims program is closed for new claims. While the role of the FCSC is only to certify as legitimate the claims submitted,13 it is the U.S. Department of State that negotiates claims with foreign governments. To date, there has been no resolution. However, on December 17, 2014, President Barack Obama and Raul Castro announced the renewal of diplomatic relations between Cuba and the U.S. In doing so, the two countries have established a bilateral commission charged with addressing various issues, including the settlement of the aforementioned claims.14 Should Cuba wish to truly attract U.S. commerce in the future, Cuba should be first required to adequately resolve the issues regarding its unilateral expropriation of property. Failure to make whole those whose property Cuba expropriated is a disservice to justice, and an insult to those who lost their property to the oppressive Castro regime.

Christian Garcia is an Associate at Zumpano Patricios & Winker, P.A. Mr. Garcia concentrates his practice on health law, litigation, and international law. Garcia can be reached at (305) 444-5565 www.zpwlaw.com

See e.g. First Nat’l City Bank v. Banco Nacional de Cuba, 406 U.S. 759 (1972) (citing The Schooner Exch. v. McFaddon, 11 U.S. 116 (U.S. 1812)) (“sovereigns are not presumed without explicit declaration to have opened their tribunals to suits against other sovereigns”).

1

2

28 U.S.C. § 1602.

3

Id.

See generally Liu v. Republic of China, 892 F.2d 1419, 1424 (9th Cir. 1989).

4

See Terrorism Risk Insurance Act of 2002 for actions against state sponsors of terrorism, which has been invoked to overcome FSIA immunities in certain anti-terrorism cases.

5

6

28 U.S.C. § 1605(a).

28 U.S.C. 1605(a)(3); see also Nemariam et al., v. The Federal Democratic Republic of Ethiopia, et al., 491 F. 3d 470, 475 (D.D.C. 2007); see also Peterson v. Royal Kingdom of Saudi Arabi, 332 F. Supp. 2d 189, 196 (D.D.C. 2004).

7

Hans W. Baade, The Legal Effect of Cuban Expropriations in the United States, 1963 Duke L.J. 290, 294 (1963).

8

See Richard E. Feinberg, Reconciling U.S. Property Claims in Cuba: Transforming Trauma into Opportunity, LATIN AMERICA INITIATIVE AT BROOKINGS (December 2015), available at http://www.brookings.edu/~/media/research/ files/papers/2015/12/01-reconciling-us-property-claims-cubafeinberg/reconciling-us-property-claims-in-cuba-feinberg.pdf.

9

10

28 U.S.C. § 1605(a)(2).

11

See 22 U.S.C. § 1643 et seq.

12

Feinberg, supra note 8, at 2.

Foreign Claims Settlement Commission of the United States, Section II Completion of the Cuban Claims Program Under Title V of the International Claims Settlement Act of 1949 (1972), available at https://www.justice.gov/sites/default/files/ fcsc/docs/final-report-cuba-1972.pdf. 13

14

Feinberg, supra note 8 at 3.

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GUEST CONTRIBUTORS

ADVISING YOUR CLIENTS ON PHILANTHROPY: ENFORCEABILITY OF CHARITABLE PLEDGES FROM THE CHARITY’S PERSPECTIVE By Steve Lande

EVER WONDER how much money Americans donate to charity each year? Giving USA estimates for 2014, the last year for which complete figures are available, that contributions totaled nearly $360 billion. An improving economy resulted in increased giving for the fifth year in a row. This is remarkable when you consider that 72 percent of it came from individuals, whose accountants are no doubt reminding them it is never cheaper to give your money away than it is to keep it.

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While Giving USA doesn’t break down the figures, a significant portion of the total charitable donations are paid at the time the funds are committed, often simultaneously. That makes these donations gifts, not pledges. With the remainder, charities get a commitment, but it is a promise to make a gift in the future – a pledge. Your clients may think a pledge is merely a promise, but it may well be a legally enforceable contract. Charities are thankful that the vast majority of all charitable pledges are redeemed in a timely manner. Only rarely do donors renege, and even then, it is usually the result of a serious financial reversal, incapacity or death. Changing of circumstances for the charity could also result in default. In these instances, the question becomes, is the pledge legally enforceable? Like most questions relating to contracts, legal enforceability of charitable pledges is a matter of state law, and the law in Florida is well settled. In Mt. Sinai Hospital of Greater Miami, Inc. v. Jordan, 290 So.2d 484 (Fla. 1974), the Florida Supreme Court declined to enforce the unpaid balance of a $100,000 pledge against the estate of the donor. The two elements required to enforce a charitable pledge in Florida are: 1) the document stating the conditions of the pledge must recite with particularity the specific purpose for which the funds must be used; and 2) the donee must affirmatively show actual reliance of a substantial character in furtherance of the specified purpose set forth in the pledge instrument. Id.at 486-87. This opinion stands after more than 40 years, and is regularly cited by courts in other states. Accordingly, any time your clients decide to make a commitment of any significance to charity, especially for a capital project that the charity intends to finance, the client can reasonably expect to be asked to sign a gift agreement that will recite the specific purpose for which the funds will be used and confirm the charity’s reliance on the donor’s clear and unambiguous promise. The document may directly declare that the gift or any unsatisfied potion thereof shall be a debt of your client’s estate. It should be noted that currently there

are a few states where an unequivocal promise to make a gift is enforceable as a matter of public policy without a showing of consideration or detrimental reliance. Some commentators have observed that this seems to be the direction of the law, but not in Florida. Some other considerations to bear in mind: Every charity’s accountants and auditors tell us we must book documented pledges as assets, make every effort to collect them, maintain reserves for uncollectable pledges, and write off uncollectable pledges against these reserves. This is a matter of accountability and transparency, but it also ultimately affects the amount of resources the charity has to fulfill its mission. These requirements are particularly significant in capital campaigns, as the charity may well be seeking to borrow funds for construction based in part on documented pledges. For obvious reasons, charities are reluctant to actually sue their donors. Donors fully intending to support the charity in the future may be reluctant to sign any form of pledge agreement. Charities often use existing pledges to induce others to give and may well build their annual budgets on the results of campaigns to secure pledges. On the other hand, depending on the circumstance, charities’ boards of directors may see it as their fiduciary duty to pursue the charity’s legal remedies. You cannot allow your clients with private foundations to use the assets to pay the legally enforceable pledge of a disqualified person – any person in a position to exercise substantial influence over the affairs of the private foundation. That is self-dealing. The same goes for donor-advised funds. The sponsoring charity is unlikely to approve a recommendation for a grant to satisfy a personal obligation of the fund holder and it shouldn’t. This raises issues of donor control, and relieving a donor of a substantial obligation by satisfying the donor’s pledge provides the donor with an impermissible benefit. We suggest that private foundation principals and donor-advised fund holders not sign formal pledge agreements, but instead,

advise the donee charity that they will recommend the necessary grant or grants to the private foundation board or sponsoring charity for the intended purpose. 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 giving. Understanding the enforceability of charitable pledges may inform your clients as they seek to fulfill their charitable objectives in a tax-wise 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 786866-8623, 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’s Authorized House Counsel. Prior to joining the Greater Miami Jewish Federation, he directed the Jewish Federation of Greater Pittsburgh’s endowment program for 18 years. A native of Iowa, Steve 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.

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COCKTAIL RECEPTION

SOUTH FLORIDA LEGAL GUIDE HOSTED ITS ANNUAL COCKTAIL RECEPTION CELEBRATING THE PUBLICATION’S 16TH YEAR

WITH THE SPONSORSHIP OF SABADELL UNITED BANK

Dwight Hill and Brian Bilzin Lisa Bobotas and Nelson Bellido

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Seth Milles, David Buckner and Jennifer Clarin

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Lawrence Kellogg, Thomas Lehman and David Levine William Trueba, Jorge Espinosa and Elio Martinez

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Steve Cohen, Howard Levine and Julian Mesa

David Levine and Patrick Rengstl

Robert Bauroth, Elio Martinez and Mitchell Bierman

Ronald Friedman, Walter Reynoso and Stanley Foodman Patti and Alan Weinstein

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TOP LAWYERS CLASS 2016

INTRODUCING THE CLASS OF 2016 After being featured in our publication as Top Up & Comers for several years, these attorneys will now be included in our Top Lawyers listing starting with our 2017 edition in December. For this Midyear issue, we asked several of our graduating Top Up and Comers to tell us about what inspired them to be a lawyer and what they most enjoy about their practice. Here are their comments, along with a list of the new Top Lawyers Class of 2016.

ERIC A. FALK Personal Injury and Wrongful Death Falk & Falk, PA Weston

MICHAEL J. MARRERO Real Estate - Land Use and Zoning, Government Bercow Radell & Fernandez, P.A. Miami

RAMON A. RASCO Commercial and Business Litigation Podhurst Orseck, P.A. Miami

MARCOS BEATON, JR. Criminal Defense/Criminal Law Black, Srebnick, Kornspan & Stumpf, P.A. Miami

JOSHUA K. FRIEDMAN Family and Marital Brodie & Friedman, P.A. Boca Raton

ALLISON E. MCCARTHY Commercial Real Estate Holland & Knight LLP Fort Lauderdale

PATRICK J. RENGSTL Corporate and Business Litigation Payton & Associates, LLC Miami

JASON A. BRODIE Family and Marital Brodie & Friedman, P.A. Boca Raton

THOMAS A. HEDLER Workers’ Compensation Hedler & Hessen, P.A. West Palm Beach

LUIS A. MENA Insurance Mena Law Firm Miami

AMANDA J. ROSS Insurance Litigation - Defense Foreman Friedman, P.A. Miami

CARLOS JUAN CANINO Litigation Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. Miami

ADAM D. HOROWITZ Sexual Abuse Farmer, Jaffe, Weissing, Edwards, Fistos & Lehrman, P.L. Fort Lauderdale

HEATHER SIEGEL MILLER Healthcare Broad and Cassel Miami

STACY M. SCHWARTZ Commercial Litigation, Intellectual Property Lewis Brisbois Bisgaard & Smith LLP Fort Lauderdale

FRANCISCO J. CEREZO International Finance, Mergers and Acquisitions DLA Piper LLP (US) Miami

JASON K. KELLOGG Corporate and Business Litigation Levine Kellogg Lehman Schneider + Grossman LLP Miami

DENISE L. DAWSON Medical Malpractice - Defense Hall Booth Smith, P.C. North Palm Beach

SANDRA KRUMBEIN Real Estate Shutts & Bowen LLP Fort Lauderdale

JOSEPH A. DIRUZZO, III Tax Fuerst Ittleman David & Joseph, PL Miami D. PORPOISE EVANS Labor and Employment, Securities - Litigation and Arbitration Perlman, Bajandas, Yevoli & Albright, P.L. Coral Gables

LORI BARKUS Family and Marital Lori Barkus, P.A. Weston

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ERIC J. NEUMAN Litigation, Construction Murdoch, Weires & Neuman, PLLC Boca Raton

STEFANIE R. SHELLEY Appellate Tobin & Reyes, P.A. Boca Raton

CYRUS S. NIAKAN Personal Injury and Wrongful Death - Plaintiff Murphy Niakan Zuniga, PLLC Palm Beach Gardens

NIKKI L. SIMON Litigation, Labor and Employment Greenberg Traurig, P.A. Miami

JEZABEL P. LIMA Appellate Levine Kellogg Lehman Schneider + Grossman LLP Miami

JASON H. OKLESHEN Financial Litigation Greenberg Traurig, P.A. West Palm Beach

ERIC J. STOCKEL Admiralty and Maritime Law Schouest, Bamdas, Soshea & BenMaier LLC Boca Raton

CHRISTOPHER MARLOWE Personal Injury and Wrongful Death - Plaintiff The Haggard Law Firm Coral Gables

MICHAEL J. PIKE Personal Injury and Wrongful Death - Plaintiff Pike & Lustig, LLP West Palm Beach

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

INGRID HAMANN PONCE Labor and Employment Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A. Miami

SCOTT N. WAGNER Litigation Bilzin Sumberg Baena Price & Axelrod LLP Miami


TOP LAWYERS CLASS 2016

Lori Barkus A desire for social justice. From an early age, I was taught to stand up for what was right, and speak for those who cannot speak for themselves. I knew I wanted to do something to help people. Law had the greatest appeal to me because it allowed me not only to advocate, but to right the wrongs. That was what I believed when I was young and idealistic. Since then, I’ve learned that not every injustice can be righted, but that we must try to do so. The people I have had the opportunity to represent over the past 18 years have taught me invaluable lessons about the dignity and grace one can demonstrate while faced with adversity. It hasn’t been what I thought it would be, but it’s been far more than I imagined. I can’t answer this question with any specifics due to confidentiality, but several come to mind. I work with a lot of clients who are paying permanent alimony and face inevitable situations where they cannot continue paying what was ordered or agreed to. I’ve seen people who lost everything, battled illness, addictions and faced things I don’t think I could personally handle. They all found a way back from their personal rock bottoms, and many had to re-define their self-images as well as what is important in life. This is why, to me, family law is so interesting. You are constantly connecting with and learning from your clients, while helping them find a resolution.

Joseph DiRuzzo In high school I was a member

of the speech and debate team. At the time I was just looking for an extracurricular activity (besides sports) for my college applications. I participated in both Lincoln-Douglas debates and extemporaneous speeches, which I really enjoyed (and to my surprise I was pretty good at). This experience opened my eyes to the possibility of going to law school; the rest is history. My most interesting case has been when I represented the New York Police Department (NYPD) captains, detectives, and lieutenants unions before the U.S. Court of Appeals for the Second Circuit in the “stop and frisk” litigation. See Floyd v. City of New York, 770 F.3d 1051 (2d Cir. 2014). The case was highly publicized, and the Second Circuit issued a truncated briefing schedule, which resulted in a good number of long days (including weekends) in the office.

D. Porpoise Evans I didn’t really know any lawyers growing up. Then I took a pre-med program in college and my ethics advisor, Ed Beiser, was a juris doctor. His course, “Hard Choices,” inspired me to drop out of the program, and ten years later I applied to law school. My most interesting case was a global anti-corruption risk assessment for an international retailer. It allowed me to marry my employment compliance training with my experience defending companies being investigated for alleged Foreign Corrupt Practices Act (FCPA] investigations. The case allowed me to hone my skills writing compliance policies and training employees, and launched my particular expertise in Sub-Saharan Africa.

Jason Kellogg My father Larry was in law school when I was a little kid, and I used to pretend to study next to him. I guess it rubbed off as I am now one of his law partners! We represented Latin American investors in class action against a Swiss bank and its Miami-based brokerage over losses incurred in the Madoff Ponzi scheme. Madoff was a main topic in the news at the time, and it was very interesting to learn the ins and outs of what he did. I believe this was the first Madoff-related class action to achieve a settlement.

Sandra Krumbein Prior to becoming a lawyer, I was a social worker in New York City, working with teenagers aging out of foster care. I attended court to present case plans to judges as part of my job and though the only one with real knowledge of the child, I was often ignored by the system. Despite my Ivy League education and professional background, I couldn’t make a difference within that system - the lawyers and the judges did; hence, my entering law. I attended law school on a full academic scholarship, graduating top of my class, as a single mother. I initially practiced family law, but realized it wasn’t for me. My firm offered me an opportunity in its real estate department and I immediately found the collaborative nature of real estate engaging and stimulating. The skills I developed as a

social worker – how to speak to people, to problem solve, to bring multiple sides together – have been invaluable in my practice and made me a more effective lawyer. I am also proud that, to this day, I still hear from some of the kids I helped as a social worker. In early 2009, I began working on a real estate development that would ultimately span almost six years of my career. The project was the Carillon Hotel & Spa, a Miami Beach hotel condominium, initially branded by Canyon Ranch, a high-end luxury spa hotel company. The developers were affected by the real estate downturn and my work began as part of a team representing the developer’s lender in a deed-in-lieu of foreclosure transaction. Over the years, I encountered everything – complex loan workouts, condominium development and operational issues, real estate and environmental matters, tax, construction litigation, hospitality, intellectual property, land use and zoning, condo hotel securities and ultimately bankruptcy. Towards the end of my work on this project, I served as special counsel in the New York bankruptcy of the lender entities. I was lead counsel and oversaw a team of Shutts lawyers from various disciplines and worked collaboratively with a multitude of national law firms. This project raised daily complex and varied legal issues and spanned multiple years of my career, making it one of my most interesting projects.

Jezabel Lima Despite being a business major in college, I always gravitated toward the classes involving group presentations and public speaking. I decided to marry these two interests and today I am a litigator handling complex commercial matters, as well as appellate and employment litigation. I have worked on many

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TOP LAWYERS CLASS 2016 noteworthy cases, but the one that stands out is a matter involving radio broadcasting rights to Mexican soccer matches. That was one of the most interesting cases that I have worked on and the clients were exceptional businesspersons.

Alison McCarthy My path took me to law school after pursuing education in marine biology and accounting, and I do not recall an “aha” moment where I found law to be my calling. Rather, being raised in Florida in humble beginnings, I found law offered me a challenging and rewarding professional career in my home state. I am able to live in beautiful South Florida and work only on local hospitality projects that shape our community and on world-class projects throughout the world. My favorite and most interesting projects are hospitality mixed-use projects, and the more “uses” the project has, the better. These projects are like a puzzle where you attempt to structure and position the components the best way possible to maximize the synergy of the project, while addressing the diverse concerns of various stakeholders. I have worked on the development and structuring of these projects throughout the country and the Caribbean, including an island project with hotel, residential, retail, golf, and marina components. Luis Mena My mother Maria and my maternal grandparents Susanna and Andres taught me the value of education at a young age. More importantly, they instilled a strong sense of civic responsibility and community. Having fled Cuba and the Castro regime, they were unfamiliar with the language, the customs and practices of the United States when they arrived. Nevertheless, they tried to 46

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assimilate and live their version of the American dream as best they could. Despite their best efforts, I saw that many people would try to take advantage of their lack of knowledge, education or their general good-heartedness. Even when those attempts were obvious, however, they always tried to do the right thing, saw the best in the people and, oddly, even tried to help them when they could. While some may disagree, this taught me that people are generally good by nature but sometimes they defy that nature and try to take advantage of others. My family’s struggle inspired me to fight for those who can’t always help themselves for one reason or another. That is why I defend policyholders in their insurance claims – to prevent others from taking advantage of them. My practice focuses almost exclusively on representing policyholders in their insurance claims against insurance companies. Accordingly, every case presents a unique challenge and set of circumstances. One of the more interesting cases I’ve worked involves an incident in a rather new condominium that caused the entire building to be shut down for an extended period after it was declared an unsafe structure. From the moment we were retained, my team and I worked tirelessly with the client, the contractors and the governing municipalities as well as the insurance company to come up with quick, viable solutions to the primary problem at hand – getting those displaced back into their homes as quickly as possible. All the while, we had to properly assess the loss, the extensive damage and make sure that the client received every dollar possible under its insurance policy. This involved not only looking at the client’s primary policy but also reviewing all of other insurance policies in order to understand

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

the layers of possible coverage and maximize the possible recovery. After countless hours, we were, thankfully, able to resolve the matter to the client’s satisfaction and, most importantly, able to get everyone of the unit owners back to their normal lives as fast as possible.

Heather Miller I think you could say that I was always destined to be a lawyer. With three older brothers, I often served (and continue to serve) as mediator to settle disputes. I’m also an extremely analytical person, which runs in my family. But it was my mom who always taught me to work hard and support myself to the best of my ability. She has had a huge impact on my life and pursuit of a successful career in law. I should also mention the lasting impact of receiving a fortune cookie at the age of six that said I would make a great lawyer! Leading the legal effort on the $47 million sale of a local hospital was one of the most interesting transactions I have worked on, and also a great learning experience. It was a very complex transaction, as the 52-year-old hospital was essentially to be closed for major renovations and reopen under a new business model. The buyer was planning to reopen the hospital with an environment much like one would find at a boutique hotel to focus on medical tourism, which was the first of its kind in South Florida. In order to complete this transaction, there were several licensing issues to address, the emergency department needed to be shut down and patients released or transferred, Medicare and Medicaid provider agreements needed to be terminated, and complicated employment issues needed to be handled.

Eric Neuman My grandparents inspired me to become a lawyer. Having each survived the Holocaust in Europe before immigrating to America, they instilled in me the enormous importance of the rule of law in society. They had an immense appreciation for our country’s system of justice, which guarantees due process and equal rights to all. From a very early age, I was fascinated with these concepts of equity and fairness, which ultimately stirred me to pursue my legal career. I recently represented the developer and owner of a large office building leased to the federal government. My client and various other parties were sued by dozens of government employees who alleged that they had mysteriously fallen ill as a result of exposure to a nebulous substance in the building. The case involved the complex interplay of a wide range of legal issues centered on real estate development, construction, negligence, indemnification, toxic tort and personal injury.

Cyrus Niakan I wasn’t inspired to be a lawyer until I became a lawyer. Beginning with my first attorney position as an insurance defense associate, I’ve drawn inspiration from three main sources: appreciative clients, challenging and unique cases, and my incredibly patient and giving mentors. The most interesting case I’ve ever worked on is the one I’m working on now. I try my best


TOP LAWYERS CLASS 2016 to be “present” and live in the moment. So the client file open on my desk at this moment is the case in which I am most interested.

Jason Okleshen Being the first lawyer in my family, I had no real frame of reference of what a lawyer actually did or what a lawyer’s life was like. During my junior year of high school I had an advanced placement history teacher – a man who had spent many decades teaching and whom I respected - tell me that I wrote well and was skilled at quickly analyzing large amounts of information and zeroing in on key issues. He told me I should go to law school. I listened to him, and to my mother, who was always pushing me to be a lawyer because, as she contended, I love to argue. However, it was my long-time mentor who inspired me to be the lawyer I am today. His actions in the office, in the courtroom, with clients inspired me. He helped instill in me a true love for the law, thorough and diligent preparation, and the judgment that clients expect and deserve in evaluating their cases and pursuing or defending them effectively and successfully. While I have had the good fortune to work on numerous interesting and sometimes bizarre cases and a take significant role in them, my first federal jury trial was my favorite. It was the first time as a lawyer that I played a significant role in a major jury trial involving a multitude of witnesses and experts. We represented a medical imaging company in a dispute against its property and casualty insurer for damage caused by Hurricanes Charley and Frances to its business, several of its facilities, and medical equipment. The

cast of witnesses turned what could have been an otherwise mundane contract dispute into a factually interesting battle. The legal and evidentiary issues were numerous and involved. To top it off, the case was ultimately tried on the west coast of Florida before a senior judge from U.S. District Court of Minnesota – a judge who had never experienced a hurricane nor presided over a trial involving claims from one. After many days in court but before calling our last witness, the jury was excused and the parties confidentially resolved the case.

Michael Pike As a young boy, my father was shot in South Miami. Witnessing this event at a young age and going to court for the trial set my path to become an attorney well before the age of seven. I was sold on the law from the end of the trial, and never changed course. Even though I was very young, I observed the trial, the testimony, the judge and all the attorneys until the very end, and that trial remained indelibly etched in my mind thereafter. I have had several cases that rank high on my list of the most interesting matters I’ve been fortunate enough to litigate in the civil arena. My law firm, Pike and Lustig, LLP, and those firms I have been associated with in years past, have been involved in highprofile commercial litigation cases and sexual-assault cases. Interestingly, both areas of law and the associated cases dealt with fundamental principles afforded by the United States Constitution – due process and a very complex application of the 5th Amendment to civil cases. The cases that require academic gymnastics are my favorites to litigate.

Ingrid Ponce My parents were my inspiration. They came to the United States as immigrants. My mom worked as a seamstress in a factory in New York’s garment district. When she became pregnant with my brother, she told no one at work for fear of being fired. At the time, firing a pregnant employee was not unlawful. So, when morning sickness hit, my mom used a bag next to her sewing machine, which she kept hidden from her foreman. My grandmother, who also worked at the factory, created distractions across the floor to divert the foreman’s attention away from my mother when she got sick. I heard this story as a child and it stuck with me. I kept thinking, there has to be a way to help people and to affect change – and for me, law was the way to help people and become an agent of change. There is never a dull moment working in the labor and employment field. There is always something surprising happening in the workplace. I handled one case where employees decided to gather at their workplace to pray in tongues and then “excise demons” while anointing the entire property with “sacred” olive oil. In another case, an independent contractor alleged he was sexually harassed and physically injured by an elderly male customer who bought him inappropriate gifts, including an obscene stuffed toy. As a management-side employment lawyer, I guide employers through the maze of workplace issues. I also give legal advice that affects the workplace lives of hundreds of employees at a time. In doing so, I have kept true to my desire to be an agent of change.

Patrick Rengstl My motivation to practice law originated from three main interests, beginning with writing. As a commercial litigator, I enjoy crafting and developing a legal brief. There is certainly an art to that. Second is oral advocacy. Arguing and persuading someone, whether a judge, opposing counsel or a client, to accept your position is rewarding. My third interest is critical thinking and problem solving. A lawsuit is like a puzzle; whoever puts the pieces together the best way usually wins the case or obtains a favorable settlement. I do a lot of receivership work involving investmentrelated frauds. One recent case involved an investment fund that was marketing pre-IPO shares of Facebook. Ultimately, investors were owed money and questions remained unanswered about the status of the fund. The court appointed a corporate monitor, whom I represent, as an interim remedy to repay investors and investigate the situation. The interim remedy quickly became permanent because it turned out that the fund’s principal had been conducting the fund inconsistent with its purpose and inconsistent with representations to the investors. Soon thereafter, the U.S. Securities and Exchange Commission sued and promptly obtained a judgment against the fund’s principal for violation of federal securities laws. Ultimately, the U.S. Attorney’s Office investigated and obtained a plea agreement for a criminal charge of investment adviser’s fraud in violation of 15 U.S.C. § 80b-6. The fund’s principal is currently sitting in federal prison serving an 18-month sentence.

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TOP LAWYERS CLASS 2016

Amanda Ross My earliest recollection of wanting to pursue a career in law was inspired by the fictional character, Perry Mason. I am the first attorney in my family, but as a child I spent hours watching black and white episodes of criminal defense lawyer Perry Mason and his wonderful secretary, Della Street, with my ‘nana and with my father. Those memories stand out to me for many reasons. I have handled many interesting matters, but my most memorable case was my first trial. I was defending a trucking company against a pro se plaintiff and had the opportunity to learn a great deal of trial practice, which I continue to use to this day.

Stacy Schwartz I was inspired to become a lawyer after I joined the high school debate team and quickly realized how much I enjoyed researching and investigating facts and issues. The experience taught me that the details of every case matter and there are no short cuts to preparation. I learned the valuable lesson of how to appreciate and respect opposing positions on an issue but to also be persuasive for my side of the case. The skills the debate team helped me develop are still an integral part of my practice today. As a business lawyer handling complex commercial disputes, the most interesting part of all my cases is learning the business and industry of my clients. Every 48

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case I work on, especially for a new client, involves taking the time to understand my client’s business practices, operations and market. The knowledge I acquire is instrumental to assisting my clients with their goals and objectives. I’ve had the pleasure of serving clients in all types of industries including, education, technology, construction, marine and yachting, veterinary practice and government benefits.

Nikki Simon My father had his own computer programming business when I was growing up and as the business struggled, so did my family. While I was too young to be aware of the details, I have distinct memories of these financial issues leading to my family filing for bankruptcy. Even as a child, I felt helpless watching my parents stress about the case, the process and the outcome. My parents had many legal questions that went unanswered, and the ultimate outcome was not what they expected. As a result of that experience, I made some key decisions that would shape my life. First, I vowed that I would never again be in a position where I was unable to help myself or my parents, and second, I set out to gain an understanding of the law so that the people I love would never again be in a position of helplessness or despair. Becoming a lawyer has indeed helped me keep both resolutions. Over the years, there have been many cases that have had an impact on my career. From each case I have learned something different about developing my skills as a lawyer and building my reputation in the legal and business community. It’s not always just about the law; sometimes it’s just as much about your interpersonal and management skills.

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

I have also learned first-hand the truth behind the old adage: Lawyers can be adversaries without being adversarial.

Eric Stockel My passion for the law began with an elective constitutional law class in the political science program at Syracuse University during my undergraduate studies. After graduating from college, I worked as a certified litigation paralegal for a large Manhattan law firm, which only further fueled my desire to become a lawyer. When I enrolled in law school, I was able to draw on my work experience, in addition to my continued passion for learning, to serve as the research editor of the Law Review, publish several articles and comments, and pass three bar examinations. I know I made the right decision in selecting law as a career, and would do it all over again. In my current position at SBSB Law, I focus my practice on the defense of claims arising under Admiralty and Maritime Law, including General Maritime law, as well as the Longshore and Harbor Workers’ Compensation Act and its extensions, the Defense Base Act and the Non-Appropriated Funds Instrumentality Act. I have also defended employers and insurance carriers in maritime civil cases such as those brought under the Jones Act and Suits in Admiralty Act, including several of the major cruise lines headquartered in South Florida. As a whole, the cruise line cases are very interesting because the causes of injuries to passengers or crew members seem to become increasingly bizarre.

Scott Wagner Most young boys dream of donning pinstripes for the Yankees, riding in a big red fire truck with blaring sirens, or driving a police car. I was a bit different. For as long as I can remember my goal was to spend my career in the courtroom. I recall learning the importance of advocacy at an early age. This is perhaps best demonstrated by my observations that children whose parents were most adept at “working the system” always ended up with the best teachers or coaches. I knew at that point that I wanted to have a career that allowed me to stand up and advance the rights of others. Throughout my career, I have been involved in a number of the largest and most watched antitrust and false claims act cases in the U.S. One case that stands out is the recently concluded LCD multi-district antitrust litigation. The case involved allegations that the world’s major manufacturers of LCDs engaged in a nearly decade long price-fixing conspiracy. In that case I represented two plaintiffs that opted out of the class action and pursued their own claims. The benchmark for “success” in most antitrust cases is attaining recoveries equal to 60-80 percent of a client’s single damages. However, in the LCD litigation my clients recovered more than 200 percent of their single damages, which equated to more than $300 million and roughly three-fourths of the recovery realized by the entire class. In addition, I identified an additional member of the conspiracy that was ignored by other parties and developed strong evidence regarding that conspirator’s participation in the conspiracy – nearly doubling the value of my clients’ claims.


PROFESSIONAL PROFILES

JENNIFER CORREA RIERA TAX LAW AND TAX LITIGATION PRACTICE

ADAM S. HALL BUSINESS LITIGATION

FUERST ITTLEMAN DAVID & JOSEPH, PL 1001 BRICKELL BAY DRIVE, 32ND FLOOR MIAMI, FLORIDA 33131 305-350-5690 JCORREA@FUERSTLAW.COM WWW.FUERSTLAW.COM

HALL, LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 305-374-5030 ADAMHALL@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

Jennifer Correa Riera is an attorney with Fuerst Ittleman David & Joseph, PL, concentrating her practice in the areas of tax litigation and controversy, tax law, and anti-money laundering law and compliance. Correa Riera’s extensive regulatory experience allows her to efficiently resolve her clients’ legal and compliance issues involving the Internal Revenue Service (IRS), the Alcohol and Tobacco Tax and Trade Bureau (TTB), the Financial Crimes Enforcement Network “FinCEN”, the Office of Foreign Asset Control (OFAC), and other federal and state agencies. Correa Riera’s understanding of, and experience with, global business expansion allows her to effectively advise clients seeking to make a footprint outside of the United States. She advises these clients on issues relating to Controlled Foreign Corporations (CFCs), Subpart F income pitfalls, the Foreign Account Tax Compliance Act (FATCA), etc. Likewise, Correa Riera advises clients abroad who wish to expand their personal or business interests into the United States. More recently, Correa Riera has been called upon to advise clients regarding the United States government’s normalization with Cuba and the Cuban government.

Adam S. Hall handles matters involving complex corporate and business litigation. In addition to commercial litigation, Hall focuses his practice on cases involving disputes between businesses, professional malpractice, securities, real estate, and probate disputes. Recognized for his relentless advocacy on behalf of clients, he has litigated cases involving broker-dealer disputes, will contests, breach of fiduciary relationships, construction disputes, and malpractice disputes involving law firms or accounting firms. Beyond his legal work, Hall is actively involved in the South Florida community. Hall currently serves on the Greater Miami Jewish Federation South Dade Branch Board of Directors. Hall has also served on the board of directors for the United Way of Miami-Dade County and has been a member of the executive committee for the United Way’s Young Leader division, including service as its chairman. Hall also maintains strong ties to the University of Florida, where he earned his law and bachelor’s degrees with honors. He is currently a member of the University’s Levin College of Law Alumni Council and serves on the alumni advisory board for Florida Blue Key, of which he was previously a member. Hall Lamb and Hall was recently named one of ten firm’s on the National Law Journal’s Litigation Boutiques Hot List.

ANDREW C. HALL BUSINESS LITIGATION

ALEX HERNANDEZ SENIOR VP BANKING

HALL, LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 305-374-5030 ANDYHALL@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

SABADELL UNITED BANK 1111 BRICKELL AVENUE, SUITE 2910 MIAMI, FL 33131 305-808-2165 ALEX.HERNANDEZ@SABADELLBANK.COM WWW.SABADELLBANK.COM

Attorney Andrew C. Hall has tried cases arising from some of the nation’s most significant historical events. From the Watergate trials in the 1970s to the Ohio savings and loan crisis in the late ‘80s, to the 2000 terrorist attack on the USS Cole, Hall’s trial skills are recognized as among the top echelon of litigators in the nation. Recently, Hall secured a $2.8 billion judgment on behalf of a Cuban expatriate for damages stemming from the continued terror attacks launched against his family by the Cuban government. He has been recognized as one of “The Best Lawyers in America” by Best Lawyers for over 10 years. Additionally, he is regularly featured in Super Lawyers and Florida Trend’s Legal Elite as among the top commercial litigators in the state. He has been recognized as a “Most Effective Lawyer” by the Daily Business Review for the past three years. He is AV rated by MartindaleHubbell, the highest independent peer-based rating available to an individual lawyer. Hall Lamb and Hall was recently named one of ten firm’s on the National Law Journal’s Litigation Boutiques Hot List.

Alex Hernandez is a Senior Vice President for Sabadell United Bank. His responsibilities include business development and relationship management in the Miami-Dade market within the bank’s Private Banking and Wealth Management division. Hernandez started his professional career at Barnett Bank, then moved to Bank of America, holding an array of positions within the Private Client Group. He then worked at Regions Bank as Vice President of Wealth Management. After his time at Regions Bank, Hernandez moved to SunTrust Bank, N.A. to assist in establishing the Music Private Banking Group in South Florida, where he served as market executive. Hernandez has been with Sabadell for more than seven years and has been recognized for being one of the top performers in the bank, year after year. Today, he serves on the board of the South Florida Association of Financial Professionals, is an active volunteer and executive board member of the Boy Scouts of America South Florida Council, and a special member of the Presidents’ Cabinet for Miami Children’s Hospital Foundation.

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PROFESSIONAL PROFILES

ADAM J. LAMB BUSINESS LITIGATION

MATTHEW P. LETO CORPORATE AND BUSINESS LITIGATION

HALL, LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 305-374-5030 ALAMB@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

HALL LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 MLETO@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

Adam J. Lamb is a partner at Hall, Lamb and Hall whose practice is focused on commercial litigation including shareholder and partnership disputes, intellectual property litigation, legal malpractice, and real estate litigation. Lamb has been recognized by a number of publications, including the South Florida Legal Guide, and has received the highest AV peer review rating by Martindale-Hubbell. An active member of the legal community, he is a member of the American Bar Association, the MiamiDade County Bar Association, the American Association for Justice, and the Greater Miami Chamber of Commerce. Lamb received his bachelor’s degree from the University of Pennsylvania and his juris doctorate from the University of Florida. Lamb is a member of The Florida Bar and is admitted to the U.S. District Court, Southern District of Florida. Additionally, he has litigated various federal and state cases under pro hac vice status in New York, New Jersey, Michigan, and the District of Columbia.

LEON N. PATRICIOS COMMERCIAL LITIGATION, HEALTHCARE LITIGATION

ZUMPANO, PATRICIOS & WINKER, P.A. 312 MINORCA AVE. CORAL GABLES, FL 33134 305-444-5565 LPATRICIOS@ZPWLAW.COM WWW.ZPWLAW.COM

Leon N. Patricios leads the litigation practice at Zumpano Patricios & Winker, P.A. He focuses on healthcare-related litigation, including managed care contract disputes, complex commercial cases, and employment related litigation. Patricios also has experience in ad valorem tax and family matters. His peers have elected him to the list of “Top Lawyers in South Florida” as published in the South Florida Legal Guide. Patricios is admitted to practice in Florida before all of its state courts. He is also admitted to practice in the U.S. District Courts for the Southern and Middle Districts of Florida as well as the U.S. Court of Appeals for the Eleventh Circuit. In addition to appearing in court, Patricios has represented clients before the Equal Employment Opportunity Commission, the Department of Labor, the Division of Unemployment Compensation and other agencies. Patricios earned his B.B.A, M.S.T. and J.D. from the University of Miami.

Matthew P. Leto is a commercial litigator who handles business, real estate, personal injury and appellate cases. He earned a bachelor’s degree in finance at the University of Central Florida and a law degree at the University of Miami. He is a member of The Florida Bar and other professional organizations. He has been recognized by the South Florida Legal Guide as a “Top Lawyer,” and by Florida Super Lawyers as a “Rising Star.” Hall Lamb and Hall was recently named one of ten firms on the National Law Journal’s Litigation Boutiques Hot List.

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PROFESSIONAL PROFILES

MEY-LING PEREZ SENIOR VP PRIVATE BANKING AND WEALTH MANAGEMENT SABADELL UNITED BANK 1111 BRICKELL AVE., SUITE 2910 305-376-2469 MEY-LING.PEREZ@SABADELLBANK.COM WWW.SABADELLBANK.COM

Mey-Ling Perez is Senior Vice President, Private Banking and Wealth Management at Sabadell United Bank. She is responsible for assisting clients with private and commercial banking needs, as well as investment and trust services. She has over 12 years of experience in the banking industry. Most recently, she served as second vice president at The Northern Trust Company, where she was a private banking advisor for eight years. She focused on advising high-net-worth families and their businesses on banking, estate planning and investment management services. Prior to that, she was a credit analyst at Plus International Bank, in charge of trade finance transactions through Ex-Im Bank (Export Import Bank of United States). Perez is a graduate of Florida International University, where she earned a bachelor of science degree in business administration and a master of science degree in finance. She is currently working on obtaining a Certified Financial Planner (CFP) designation from New York University. Her community involvement includes the Junior League of Miami, United Way of Miami-Dade, and the American Society and Council of the Americas.

ORLANDO ROCHE REGIONAL PRESIDENT PRIVATE BANKING SABADELL UNITED BANK 1111 BRICKELL AVE., SUITE 2910 MIAMI, FL 33131 305-347-4175 ORLANDO.ROCHE@SABADELLBANK.COM WWW.SABADELLBANK.COM

Orlando Roche is Regional President of Sabadell United Bank for Miami-Dade County. He is responsible for overseeing the Bank’s private banking, personal and business banking in Miami. Roche has over 28 years of experience in banking and private wealth. Prior to joining Sabadell, Roche was a senior banking officer at The Northern Trust Company. He started his career at SunTrust Bank, where he served as vice president of commercial lending and private banking. An active member of our community, Roche serves as a board member on the Florida International University Foundation, the Belen Jesuit Preparatory School Advisory Board, and the Brickell Avenue Literary Society. He is a member of the Young Presidents’ Organization (YPO) and a trustee of the Greater Miami and Coral Gables Chambers of Commerce. He is also involved with other organizations including Feeding South Florida, the University of Miami Business School Advisory Board and Citizens Board and Maximum Dance Ballet. Originally from Cuba, Roche was raised in Miami and graduated from Florida International University with a major in finance and economics.

STEPHEN H. WAGNER INTERNATIONAL TRADE AND CORPORATE PRACTICE

DAVID WINKER COMMERCIAL LITIGATION, HEALTHCARE LITIGATION

FUERST ITTLEMAN DAVID & JOSEPH, PL 1001 BRICKELL BAY DRIVE, 32ND FLOOR MIAMI, FLORIDA 33131 (305) 350-5690 SWAGNER@FUERSTLAW.COM WWW.FUERSTLAW.COM

ZUMPANO, PATRICIOS & WINKER, P.A. 312 MINORCA AVE. CORAL GABLES, FL 33134 305-444-5565 DWINKER@ZPWLAW.COM WWW.ZPWLAW.COM

Stephen H. Wagner is a partner with the firm of Fuerst Ittleman David & Joseph. He practices primarily in the area of international trade and business transactions, applying his Bar-certified expertise in international law to effectively and efficiently resolve his clients’ legal issues. Wagner represents foreign and domestic clients in trade matters before government agencies such as U.S. Customs and Border Protection (CBP), the Bureau of Industry and Security (BIS), and the Directorate of Defense Trade Controls (DDTC). In addition, Stephen advises clients with respect to imports and exports of merchandise regulated by other government agencies such as the U.S. Food and Drug Administration (FDA). In the corporate realm, Wagner has significant experience in mergers and acquisitions as well as providing a full-range of corporate legal support from organizing new ventures to commercializing intellectual property. Wagner also has experience in negotiating and drafting complex contracts for both domestic and international clients to ensure the realization of their business plans. In addition to his legal practice, Wagner frequently teaches seminars on import/export compliance and enforcement matters and has authored numerous articles on international trade, corporate, and transnational litigation matters.

David Winker is board certified as a specialist in health law by The Florida Bar and focuses his practice on domestic and international health care transactions and regulatory compliance issues. Winker has counseled providers in connection with overpayment reviews, program suspensions and federal and state criminal, civil and administrative investigations, and assisted providers with contracting, corporate structuring, real estate and estate planning issues. In addition, Winker has provided counseling on licensure matters and regulatory and legislative initiatives affecting Medicare and Medicaid providers and suppliers (including coverage and reimbursement issues). Winker’s peers have elected him to the list of the top lawyers in South Florida as published in the South Florida Legal Guide (2003-2016), to the Legal Elite as published by Florida Trend Magazine (2006 - 2010) and to Super Lawyer’s magazine. He has received Martindale-Hubbell’s highest rating-AV. Winker earned a degree in political science at Florida State University and a J.D. from the University of Florida.

SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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PROFESSIONAL PROFILES

JOHN W. ZEDER CORPORATE AND BUSINESS LITIGATION, INSURANCE HALL LAMB AND HALL, P.A. 2665 S. BAYSHORE DR., PH 1 MIAMI, FL 33133 JZEDER@HLHLAWFIRM.COM WWW.HLHLAWFIRM.COM

Jon W. Zeder is a trial lawyer and commercial litigator. He is also a Certified Mediator in the United States District Court for the Southern District of Florida, and is certified as a Circuit Mediator by the Supreme Court of Florida. Zeder is a Life Fellow of the American Bar Foundation and he is rated “AV” by MartindaleHubbell, the highest recognition given for professional excellence, skills, and integrity. Hall Lamb and Hall was recently named one of ten firms on the National Law Journal’s Litigation Boutiques Hot List.

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GROWTH STRATEGIES SUCCESSFUL PRACTICES PRO BONO LEGAL MALPRACTICE PLUS EMPLOYER DATA, MEDICAL MISTAKES, PROPERTIES IN CUBA AND MORE.

JOSEPH I. ZUMPANO HEALTHCARE, INTERNATIONAL

ZUMPANO, PATRICIOS & WINKER, P.A. 312 MINORCA AVE. CORAL GABLES, FL 33134 305-444-5565 JZUMPANO@ZPWLAW.COM WWW.ZPWLAW.COM

As president and managing shareholder, Joseph I. Zumpano has overseen the growth of the firm as it has expanded to 60 members with locations in 15 countries. He focuses his practice on complex healthcare law and international law matters. Zumpano’s accomplishments, widely covered by the media, include his pioneering the business theory of “New Globalism” and the historic case Weininger v. Castro, in which ZP&W obtained a $86.5 million judgment against the Castro brothers and the Army of Cuba. Zumpano assembled the legal team in the effort that resulted in the collection of $24 million on the judgment. More recently, Zumpano led his team to pierce a Bahamian Trust in the case Breitenstine v. Breitenstine et. al. After a seven-year battle to recover the funds therein, the court ordered the turnover of approximately $4 million in assets. Zumpano earned a BA from Harvard University and a dual degree in law and public health from Georgetown University and Johns Hopkins University.

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SOUTH FLORIDA LEGAL GUIDE MIDYEAR 2016

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Sabadell® is a registered mark of Banco de Sabadell, S.A. used by Sabadell United Bank, N.A., a subsidiary of Banco de Sabadell, S.A., and by Banco Sabadell, Miami Branch, a Florida international branch of Banco de Sabadell, S.A. Sabadell United Bank, N.A., is a member FDIC and an Equal Housing Lender. †Deposits at Banco Sabadell, Miami Branch are NOT FDIC INSURED. *Advisory services include advice on non-deposit investment products which are NOT A DEPOSIT - NOT FDIC INSURED - MAY LOSE VALUE – NOT BANK GUARANTEED – NOT INSURED BY ANY FEDERAL GOVERNMENT AGENCY. © 2016 Banco de Sabadell, S.A. All rights reserved.


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Civil Litigation

Domestic Relations Intellectual Property Litigation Securities Litigation Wrongful Death

ASSOCIATION

ANDREW C. HALL ADAM J. LAMB ADAM S. HALL MATTHEW P. LETO ROARKE O. MAXWELL DANIEL E. DAVIS VANESSA PALACIO KEITH R. GAUDIOSO JON W. ZEDER - OF COUNSEL

Complex Commercial Litigation Personal Injury Professional Malpractice Real Estate Litigation Appeals

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South Florida Legal Guide Midyear 2016  

Midyear 2016 edition

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