The Florida Bar Journal 2007-01: Vol 81 Iss 1

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THE FLORIDA
VOLUME 81, NO. 1, JANUARY 2007
BARJOIRNAL
ADVANCING THE COMPETENCE AND PUBLIC RESPONSIBILITY OF LAWYERS
In this issue;
• Federal Court Sanctions
• Florida Common Law Jurisdiction
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Vol. 81, No. 1
MRJOIKNAL Features
651 East Jefferson Street Florida Common Law Jurisprudence 8
by Michael Cavendish and Blake J. Hood
Tallahas^e, Florida 32399-2300
[phone]
Federal Court Sanctions Against Attorneys Under 16
FloridaBar.org
28 U.S.C. §1927 — The 11th Circuit Court of Appeals
For court-related inforrDOtloa Attempts to Divide the Standard for Multiplying the
see f1courts.org. Proceedings in Bad Faith
by Glenn J. Waldman
Publisher
John F. Harkness, Jr.
Editor
Columns
Cheryle M. Dodd
Associate Editor
MeHnda Melendez Letters 4
President's Page
Seasoned Mentors Catch Young Solos Before They Fall 6
by Henry M. Coxe III
Appellate Practice
Citation Form: Keeping Up with the Times 23
by Susan W Fox and Wendy S. Loquasto
Tax Law
Family Limited Partnerships: Are They Still Alive and Kicking? 28
by David Pratt, Trent S. Kiziah, and John F Pokorny
Business Law
Asset Protection Proofing Your Limited Partnership or LLC 34
for the Bankruptcy of a Partner or Member
East Jefferson Street, TcScrtxissee 3239?>- by Thomas O. Wells and Jordi Guso
2300, telephone [phone]. Perlodiccfc
podage paid at the Pest Office in Tcrfc^rossee,
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offices. The Florida Bor Joumaf, ISSN 0015-3915, Economic Redevelopment of Small-city Downtowns: 39
Pub. No. 200-960. Options and Considerations for the Practitioner — Part 1
Sttoscriptions: Florida Bor members receive by Harry M. Hipler
the Journo/ as port of their annual dues pay¬
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Labor and Employment Law
Rates availabte by calling [phone].
Views and conclusions expressed in ar¬ Successor Liability Issues in Labor and Employment Cases 48
ticles herein are those of the authors and not by Travis R. Hollifield
necessarily those of the editorial staff, officials,
or Board of Governors of The Florida Bar. Trial Lawyers Forum
The Florida Bor Journal welcomes tetters
to the editor. Letters should be no longer Mislabeling the Pharmacist Who Does More Than Just 53
than 500 words arxt may be edited. Letters Mislabel the Prescription: Pharmaceutical Liability
should be directed to "Letters to the Editor,' Under Florida Law
The Florida Bar Journal. 651 E. Jefferson St., by Richard C. Alvarez
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[email protected]. Books 56
© 2007 The Florida Bor. Printed in U.S.A.
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Cover art by Joe McFadden
2 THE FLORIDA BAR JOURNAL/JANUARY 2007
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Letters
President
Law-related Education Although the subject article
Henry M. Coxe Hi
The key to making civic education, (“The American Voter,” November
PrESID£NT-EI£CT
including law-related education, re¬ 2006) contains important data
Francisco R. Angones
ally work is to make it part of the about who is and who is not voting,
Executive Director
John F. Harkness^ Jr. curriculum taught by professional it goes over board, into the depths
teachers. For this reason, the most of non sequitur, in the paragraph
Board of Governors important article in the November titled “Reasons for Not Voting.”
2006 special issue regarding law-re¬ Specifically, that paragraph be¬
lated education was one the written gins by identifying the number of
by John Doyle and Stephen C. Shen- millions who did register to vote
kmen describing how law-related in 2004 (142), then proceeds to
education can be included in the catalogue the percentages of that
curriculum. I have personally seen population who did not vote and
the magic of John Doyle’s programs the reasons why. All is smooth sail¬
in generating knowledge and excite¬ ing until the last sentence, which
ment in high school students. reads, in pertinent part, “Other
To make civic education really hap¬ reasons included...confusion or
pen, the Bar must go beyond merely uncertainty about registration
offering guest speakers or lawyer requirements....” But that reason
liaisons. Frankly, the single best thing for not voting deals with the popu¬
the Bar could do would be to to lobby lation who did not even register
for adequate ftmding and inclusion in to do so, a citizen segment having
the curriculum of the programs like nothing to do with the 142 million
those that John and Stephen list. under the microscope of the para¬
Finally, let me say that we are ex¬ graph. We have a right to expect
tremely lucky to have a chief justice better reporting from the authors,
who has made civic education one of leaders in the League of Women
his priorities. Voters organization.
Thomas W. Logue, Miami Ted Baumgardner, Winter Park
Badger HI, J. Btak Culpepper,
Editor’s Note: In William C. Ballard’s article," Who Decides Whether to Build It Higher, the Condo¬
Editorial Board minium Community or the Courts?” on page 60 of the December Journal, the phrase, “the improvements
required to ensure the ground floor units are not flooded might require a periodical special assessment"
Chair Annette C. Escobar, Miami; should read:“...the improvements required to ensure that the ground floor units are not periodically
Vice Chair Joy Paul Lechner, Tamp>a;
Vice Chair Erin M. Larrinaga, Tampa; flooded might require a special assessment....” The Journal regrets the editorial error.
Michael Agliota, Jacksonville; krisri L,
Bergemann, West Palm Beach; John M.
Byrne, Boca Raton; David E. Cannella, Letters continued
Orlando; Carrol Y. Cherry, Tallahassee;
Richard B. Collins, Tallahassee; Daniel
S. Dearing, Tallahassee; Robert C. Oath of Admission to The Florida Bar
Down ie Tl, Tallahassee; Richard C.
Entin, Ft. Lauderdale; H. Scott Fingerhut,
Miami; Barbara A. Fink, Holly Hill; Gary The general principles which should ever control the lawyer in the practice of the legal
S. Gaffney, Davie; Juan C. Gomez, profession are clearly set forth in the following oath of admission to the Bar, which the
Miami; Joseph G. Jarret, Bartow; lawyer is sworn on admission to obey and for the willful violation to which disbarment may
Manuel Perez-Leiva, Miami; Wendy S. be had.
Loquosto, Tallahassee; S. Elysha Luken, "I do solemnly swear:
Tallahassee; V. Julia Luyster, Hollywood; "I will support the Constitution of the United States and the Constitution of the State of
Lisa M. Mocci, Deerfield Beach;Christina Florida;
C. McAdams, Tampa; Donald A. "I will maintain the respect due to courts of justice and judicial officers:
Mihokovich, Tampa; Rima Y. Mullins, “I will not counsel or maintain any suit or proceedings which shall appear to me to be
Miami; Mark R. O^erow, Boca Raton; unjust, nor any defense except such as I believe to be honestly debatable under the law
Alyssa A. Ruge, Tampa; Richard A. of the land;
Sachs, Ft. Lauderdale; Michael A. Shofir, "I will employ for the purpose of maintaining the causes confided to me such means
Miami; Michael Shelley, Hollywood; only as are consistent with truth and honor, and will never seek to mislead the judge or
Clifford B. Shepard III, Maitland; Majit jury by any artifice or false statement of fact or law;
Singh Gill, Coral Gables; Julie S. Sneed,
“I will maintain the confidence and preserve inviolate the secrets of my clients, and will
Tampa; Sorroya M. Solages, Miami;
accept no compensation in connection with their business except from them or with their
Michael D. Starks, Orlando; Rafael
knowledge and approval;
Suarez-RIvos, Miami; R. Craig Waters,
"I will abstain from all offensive personality and advance no fact prejudicial to the honor
Tallahassee; Jennifer A. Winegardner,
Tallahassee; Board Labon; Charles or reputation of a party or witness, unless required by the justice of the cause with which
I am charged:
Chobee Ebbets, Daytona Beach.
"I will never reject, from any consideration personal to myself, the cause of the defense¬
less or oppressed, or delay anyone's cause for lucre or malice. So help me God."
4 THE FLORIDA BAR JOURNAL7JANUARY 2007
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by Henry M. Coxe III
President's Page
Seasoned Mentors Catch Young Solos Before They Fall
A
s a novice prosecutor in Duval lege of Law the first three years of
County at age 26, the late As¬ lawyering, what can be done to make
sistant State Attorney Baker things better, and what law schools
King took me under his wing and can do to better prepare students for
showed me the way. the day-to-day practice of law.
If I had a nagging question and Hats off to lawyers like Sidney
King wasn’t handy, I could walk Calloway, a partner at Shutts &
down the hallway and poke my head Bowen in Ft. Lauderdale, who, in
in any number of seasoned pros’ collaboration with the T.J. Reddick
offices and come away with good Bar Association, has launched a
answers and caring guidance. But series of programs on professional
who does the young lawyer in solo development for young lawyers and
practice go to for help? law students. Calloway’s kickoff
That question struck me with a presentation was aptly titled, “Now
wallop when the membership of The That I’m Here, Where Do I Go?”
Florida Bar recently rolled over to For those of you thinking, “I’m
the bold number of 80,000. already here, and I have long known
Just a decade ago, when my law where to go. So don’t bother me, be¬
partner John DeVault was Bar presi¬ cause I’m too busy getting to where
dent, there were 58,220 lawyers. I’m going,” please consider this:
That’s an influx of around 2,100 new There are two good reasons to care
lawyers in the state each year. of solo practitioners have less than that Florida’s young lawyers don’t
Many new lawyers go from law two years experience (about 3,200) floimder and slip into gray areas that
school to firms large and small, and 10 percent have less than four can too quickly slide into malpractice
or government offices, where an years experience (about 8,000). or ethical problems. One, for the good
abundance of mentoring is avail¬ While half of solo practitioners of the profession. Two, for the protec¬
able for the asking from an array of have more than 20 years experience, tion of the public. And you experienced
colleagues gathered under one roof I worry about that group of inexpe¬ lawyers at the top of your career, let’s
Experienced lawyers are generous in rienced lawyers going solo. be honest: You didn’t get there all by
sharing what they know. But some We know a larger number of solo yourself, nor should we not be doing
newcomers to our profession bravely practitioners are involved in dis¬ the same for our newest members.
hang out their own shingles and are ciplinary complaints. Carl Zahner, I’d like to find a way to harness
suddenly faced with questions they director of the Bar’s Henry Latimer the good will and energy of the
never imagined while sitting in law Center for Professionalism, esti¬ Young Lawyers Division, the lofty
classes, where the aim is to teach mates between 20 to 30 percent of responsibilities of law school deans
students to think like lawyers, not participants in the diversion pro¬ to graduate students who will pass
how to run a practice. gram are young solo practitioners the bar exam, the natural instinct of
How do I pay for a court reporter who, too often, are overwhelmed by experienced lawyers to help younger
when I haven’t been paid by my cli¬ tr3dng to do everything—from being lawyers succeed, and the resources
ent? How do I handle an abusive client legal secretary, lawyer, and business of The Florida Bar for a structured
when I really can’t afford to turn away manager — on their own. mentoring program.
business and have to pay the rent? There is the mandatory Practicing Just like when I was that wide-
We don’t have hard numbers yet on with Professionalism program, put eyed prosecutor back in 1973,1 don’t
how many new lawyers go immedi¬ on by the Young Lawyers Division. have all the answers. How should
ately from passing the bar into solo But few would disagree it’s too little mentoring be structured so it’s truly
practice, but we are in the process of too late when new lawyers have up meaningful? Should it be mandated,
collecting that information. to a year to take the day-long cur¬ and if so, how? But I’m not afraid to
Meanwhile, Mike Garcia, director riculum, and a lot can go wrong in ask the right people the right ques¬
of the Bar’s Research, Planning, and the meantime. tions. Any ideas?
Evaluation Department, can tell us The Florida Supreme Court Com¬
that 29 percent of Florida’s lawyers mission on Professionalism, chaired
are solo practitioners, and, of those, by Justice Raoul Cantero, is making
10 percent are younger than 35. Gar¬ the focus of its April 26-27 spring
cia can also tell us that four percent retreat at Stetson University Col¬ Henry M. Coxe III
6 THE FLORIDA BAR JOURNAUJANUARY 2007
THESE LEGAL PROFESSIONALS RELY ON US
Do You ?
Michelle M. Blum, Esq. Stephen K. Roddenberry, Esq.
JONES DAY AKERMAN SENTERFIH
David E. Wells, Esq. Douglas Ulene, Esq.
HUNT0N& WILLIAMS WILLKIE FARR & GALLAGHER
Enrique J. Martin, Esq. Brian H. Nelson, Esq.
GREENBERG TRAURIG EDWARDS ANGELL PALMER & DODGE
Patricia Lebow, Esq. Carlos J. Deupi, Esq.
^
BROAD ANDCASSEL HOGAN & HARTSON
Robert N. Gilbert, Esq. j.B. Murray, Esq.
CARLTON FIELDS SQUIRE SANDERS
Jeffrey Decker, Esq. ^ Lisa M. LaFourcade, Esq.
m
BAKER & HOSTETLER PAUL HASTINGS
William Berger, Esq. ^ m Scott J. Jordan, Esq.
GREENSPOON MARDER TRIPP scon
Kim A. Hines, Esq. Manuel A. Garcia-Linares, Esq.
AKERMAN SENTERFIH RICHMAN GREER
Michael D. Simon, Esq. Roberto R. Pupo, Esq.
GUNSTER YOAKLEY & STEWART HOLLAND & KNIGHT
Bill Townsend, Esq. Stuart Kapp, Esq.
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Dario A. Perez, Esq. Chanley T. Howell, Esq.
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“What is Florida common law?” Hl||| |M||||H
“How is the English half of Rlorida common
understood, and applied or rejected in Florida courts?”
In answer to both questions,
jurisprudence thatrnarries th^ancienUorms^^^^^^^^^
,) modern sfafufes and the FloriM SuWemejGouj^^
'? ' discernmehk0its^^m^M
Joe McFadden