State-to-State - Out-of-State Division of The Florida Bar
←
→
Page content transcription
If your browser does not render page correctly, please read the page content below
The Florida Bar Out-of-State Division
State-to-State
flabaroutofstaters.org Winter 2021
Purr-fect Zoom etiquette for remote appearances
Davis, Lesser vie for Bar presidency
Q&A with the Bar president-elect candidates
Best Practices Guide for a Firm’s Pro Bono Policy
OUT-OF-STATE DI VISION
E XECUT I VE COUNCIL
OFFICERS IN THIS ISSUE:
President
Cullan E. Jones, Washington, D.C.
President’s message: Purr-fect Zoom etiquette for
President-Elect
Lawrence (Larry) H. Kunin, Atlanta, Ga.
remote appearances............................................................................... 3
Treasurer Mark your calendar.................................................................................... 4
Brandon L. Wolff, West Orange, N.J.
Secretary 2021 ALTA/NSPS Minimum Standard Detail Requirements for
Mindi Wells, Columbus, Ohio ALTA/NSPS Land Title Surveys (effective February 23, 2021)............... 5
Immediate Past President
Natasha B. Dorsey, Chicago, Ill. Best Practices Guide for a Firm's Pro Bono Policy................................... 7
AT-LARGE MEMBERS (EXP. 2021) Dennis F. Fountain receives 2021 Bar President's Out-of-State
Tiffany N. McKenzie, Atlanta, Ga. Pro Bono Award...................................................................................... 9
Anais Mary Taboas, Washington, D.C.
Donald A. Workman, Washington, D.C. Davis, Lesser vie for Bar presidency....................................................... 10
AT-LARGE MEMBERS (EXP. 2022) Q&A with the Bar president-elect candidates.......................................... 12
W. Bard Brockman, Atlanta, Ga.
Timothy P. Chinaris, Nashville, Tenn. Board of Governors’ updates................................................................... 16
Matthew L. Kahl, Portland, Ore. Workman joins Board of Governors........................................................ 17
BOARD OF GOVERNORS MEMBERS Contributing authors................................................................................ 18
Brian D. Burgoon, Atlanta, Ga. Out-of-State Division Executive Council.................................................. 19
Ian M. Comisky, Philadelphia, Pa.
Eric L. Meeks, Cincinnati, Ohio Editor’s corner: Your Out-of-State Division is here for YOU.................... 20
E. Duffy Myrtetus, Richmond, Va.
LIAISONS
Board of Governors Liaison
E. Duffy Myrtetus, Richmond, Va.
Diversity & Inclusion Committee Liaison (Bar)
TBD
Young Lawyers Division Liaison
TBD
COMMITTEE CHAIRS
Budget Chair
TBD
CLE Chair
Eric L. Meeks, Cincinnati, Ohio
Information Chair
Donald A. Workman, Washington, D.C.
Legislative Chair
G.C. Murray, Jr., Tallahassee, Fla.
Membership Growth Strategy Chair
TBD
Multi-State Practice Chair
Timothy P. Chinaris, Nashville, Tenn.
Social Media Chair
Matthew L. Kahl, Portland, Ore.
COVER:
State-to-State Editor
Donald A. Workman, Washington, D.C. THE BAR HEADQUARTERS
State-to-State Associate Editor The Florida Bar headquarters building and annex are located in Tallahassee on a five-acre site
Matthew L. Kahl, Portland, Ore. three blocks from Florida’s Capitol.
Program Administrator
Emily K. Young, Tallahassee, Fla.
3/2021
flabaroutofstaters.org 2 State-to-State — Winter 2021
Purr-fect Zoom etiquette for
remote appearances
By now, just about every lawyer While the above points are sim-
has viewed the infamous lawyer ply suggestions, courts are taking
Zoom cat video. notice in an effort to keep proceed-
For those of you not so lucky, a ings formal despite the reality that
Texas lawyer inadvertently appeared President’s remote proceedings will continue to
via Zoom for a hearing with a filter message be the norm going forward. Notably,
activated that turned him into a talk- if you’re appearing before the U.S.
ing cat. When he spoke, the cat spoke. District Court for the Middle District
When he opened his mouth in shock of Florida by video, make sure you
after noticing his feline avatar, the are in compliance with new Local
cat did the same. He assured the Cullan E. Jones
Rule 5.03(e)(1), which went into ef-
judge that he was, indeed, not a cat fect on February 1, 2021, and which
and was trying to disable the filter. states that participants must: “use a
“I’m here live. I’m not a cat,” the law- professional background … if visible.”
disconnect and reconnect and check
yer said. “I can see that,” the judge While the court has not expanded
responded before trying to walk the the signal strength prior to a meet- upon what constitutes a “professional
lawyer through fixing the filter issue. ing. Speedtest.net is a good test, and background,” I can almost assure the
While the faux-paws was a funny you can check your results against readers that a cat avatar does not
and all-too-human moment in 2021, Zoom’s system requirements. pass muster.
I sincerely hope that a laugh was the
only consequence.
The hilarious episode brings up
some important reminders—first, if Are you feeling lonely, isolated, fearful, anxious, depressed, or
you use Zoom or another videocon-
ferencing platform, make sure you otherwise struggling as a result of the pandemic?
are well-versed in how to change the
background, username, and filters.
Ideally, make sure before you go live You are not alone.
that you are displayed in the way in
which you want to appear in court, for Join a virtual chat group with other Florida Bar members to discuss these challenges
mediation, for deposition, etc. Usu- and pursue personal fulfillment by providing support to and receiving support from
ally that means your display name others during these times.
is your name (perhaps with pronouns
and/or party designation depending
Free and confidential
on local custom), no filters other than
those involving focus or lighting, and led by Licensed Psychologist,
a background that won’t create ques- Scott Weinstein, Ph.D.,
tions you don’t want to answer. every Wednesday from noon to 1PM Eastern.
Second, be careful if you share com-
puters or accounts. Sharing a device More information and connection details here:
with your assistant is one thing, as https://www.fla-lap.org/meetings-and-events
it does not implicate confidential-
ity in most cases; sharing with your
significant other or child is usually a
bad idea, unless they also work for
your law firm, as you no doubt have
confidential information available
on your computer. Kids, in particu-
lar, are perilous here—they, under-
standably, think they’re funny and
won’t hesitate to turn on the cat filter
themselves.
Finally, check your internet con-
nection. If you’re relying on Wi-Fi,
make sure your signal is strong be-
fore starting the meeting. I usually
flabaroutofstaters.org 3 State-to-State — Winter 2021
Division News
Mark your calendar
June
Florida Bar Annual Convention
9-12 June 9-12, 2021
Hilton Orlando Bonnet Creek & Waldorf Astoria
Orlando, Florida
J o i n t h e O O S D n ow !
Not a member of the Out-of-State Division?
Join now!
Membership in the division is just $35 and provides a number of valuable benefits to out-of-state
attorneys, including discounts on CLE registration, a free annual ethics CLE, and opportunities to
network with other Florida lawyers. Join now! Invite a colleague!
For more information, please contact:
Anais Mary Taboas, Chair Emily K. Young
Membership Growth Strategy Committee Program Administrator
anaistaboas@gmail.com eyoung@floridabar.org
Mission of the Out-of-State Division
The purpose of the Out-of-State Division of The Florida Bar is to provide an orga-
nization for all Florida Bar members who reside outside of the state of Florida. The
division focuses not on any specific practice area, but rather on the common interests
and needs of out-of-state Florida Bar members as a whole. The division works toward
the goal of ensuring equitable treatment for in-state and out-of-state Florida Bar
members. This is accomplished through education, legislative, and administrative
review; the production and update of a website for division members and the public
at large; and the publication of a newsletter sent to the division’s membership.
flabaroutofstaters.org 4 State-to-State — Winter 2021
2021 ALTA/NSPS Minimum Standard
Detail Requirements for ALTA/NSPS Land
Title Surveys (effective February 23, 2021)
by E. Duffy Myrtetus
The 2021 Mini- reflects something more than a nu- counterintuitive effort to address “Pre-
mum Standard anced change in syntax—it reflects the cision”) incorporates one of the worst
Detail Require- additional risk that is now retained by/ run-on sentences ever adopted by the
ments for ALTA/ shifted to the requesting party seeking Committee, culminating with the in-
NSPS Land Title a survey. troduction of a new ninety-five percent
Surveys (the 2021 The Committee apparently relied (95%) confidence level in determining
Standards) ap- upon the ruling in Gutierrez de Marti- the required positions. Does this mean
proved by the Na- nez v. Lamagno, 515 U.S. 417 (1995) to that there is now a five percent (5%)
tional Society of make this particular change. The case acceptable range of error in establish-
E. DUFFY Professional Sur- involved an action where a federal em- ing positions? What happens when
MYRTETUS veyors, Inc. (as the ployee was sued for wrongful or negli- two surveyors contest the 5% delta
legal successor to gent acts, triggering provisions of the in the new Standard? Note the ripple
the American Congress on Surveying Federal Employees Liability Reform effect of this new standard into sec-
and Mapping-ACSM) and the Ameri- and Tort Compensation Act of 1988 tions relating to Fieldwork and Lines
can Land Title Association (ALTA) (commonly known as the Westfall of Possession and Improvements along
took effect February 23, 2021. The Act, which modified the Federal Tort the Boundaries, etc. (see Standard 5).
2021 Standards replace the prior 2016 Claims Act (FTCA)). Justice Ginsburg Standard of Care 4 – “Records Re-
revised standards. As of the new ef- delivered the Supreme Court’s opin- search” is a revamped provision, but
fective date, all previous versions of ion, overruling the Fourth Circuit. In does not generally appear to reflect
the Standard Detail Requirements for part, the opinion includes an analysis material substantive changes; how-
ALTA/ACSM Land Title Surveys are of the use of the word “shall,” inferring ever, the author has recently received
superseded by the 2021 Standards. contextual ambiguity upon the gener- a requirement from a surveyor to pro-
A complete copy of the revised 2021 al mandatory connotation of the word vide “… The current record descrip-
Standards are available online at the in legal usage. The Committee appar- tions of any adjoiners to the property to
NSPS website at https://www.nsps. ently was not persuaded by Justice be surveyed, except where such adjoin-
us.com/page/2021ALTA1 Souter’s dissent, including that the ers are lots in platted, recorded subdi-
Additionally, one other document, Court has “… repeatedly recognized visions… .” (Standard of Care 4(c)(i)).
which is also available at the NSPS the normally uncompromising direc- Where this requirement is interposed
website, is an excellent resource and tive that it [shall] carries”…“The word by the surveyor, title companies no
quick reference to facilitate a review ‘shall’ generally indicates a command doubt will require the added expense
of operative changes in the 2021 Stan- that admits of no discretion on the of determining record title ownership
dards as compared to the 2016 Stan- part of the person instructed to carry to adjoining parcels.2
dards. It is a redline of the 2016 Stan- out the directive”; Black’s Law Dic- Standard of Care 5(ii), (iii), and (iv)
dards, reflecting specific revisions, tionary 1375 (6th ed. 1990) (“As used – “Easement and Servitudes” seem to
inclusive of changes to standard Table in statutes ... this word is generally narrow the surveyor’s duty to include
A: https://cdn.ymaws.com/www.nsps. imperative or mandatory”…). In that easements that are not disclosed in the
us.com/resource/resmgr/alta_stan- sense—and reviewing comparable record chain of title, but are physically
dards/2021_ALTANSPS_Standards_ changes made in the most recent revi- observed in conducting fieldwork in
redL.pdf sions to the Minimum Standards—the subpart (ii), including deletion of the
The changes have been unanimous- Committee appears to have continued conjunctive reference to: “… and on
ly adopted by the members of the joint a trend to relax the scope of minimum adjoining properties … .” This seems
ALTA/NSPS Committee (the Commit- surveyor required action. to be an unusual deletion. The ex-
tee), which is composed of numerous Standard of Care 3(D) – “Boundary planatory notes at the NSPS website
members of both NSPS and ALTA. Resolution” is now just “Boundary” in are vague at best. Query whether an
The majority of the revisions represent terms of corners and boundary lines old unrecorded easement/path/road/
what some commentators have argued to be established. It is unclear what access way originating off site of the
is the next step in a continuing retreat improved clarity or precision in estab- property to be surveyed, that vaguely
from the more stringent historic mini- lishing boundaries is achieved with appears to affect all (or portions) of
mum standards preceding the 2011 these changes. the topography of the property to be
Minimum Standards. For example, Standard of Care 3(E)(i) – “Mea- surveyed, and then reappears off site
the shift from use of the word “shall” surement Standards” for Relative on a contiguous parcel must still be
to “must” throughout the revisions Positional Precision (an apparent noted after this change?
flabaroutofstaters.org 5 State-to-State — Winter 2021
trustees, etc., will need to consider to Standard 3(B), the surveyor must
2021 ALTA/NSPS how the newer standards may complete the survey in compliance
from preceding page impact a prospective disposition with the requirements of the 2021
of distressed property. Updated Standards, and the requirements of
survey data would presumably applicable federal, state, and local
Table A revisions are extensive, but require compliance with the new- statutes, administrative rules, regula-
all remain subject to negotiation. One est 2021 Standards, and existing tions, and/or ordinances that set out
of the most notable changes is the mortgagee coverage with excep- standards regulating the practice of
deletion of former Section 18 as to tions under the older standards surveying within a subject jurisdic-
delineation of wetlands. This again may not be adequate for coverage tion. In Virginia, reference should
seems like an unhelpful change, as the on survey-related matters for a also be made to the provisions of Va.
requesting party would have been re- purchaser at a foreclosure auction, Code § 54.1-400, et seq., 18VAC10-20,
quired to mark the former Section 18 grantee in a deed-in-lieu, or other and 18VAC10-20-370, et seq., as well
and negotiate the detail to be provided. transferee of title pursuant to an as the applicable locality’s planning,
In the context of title insurance insured deed of trust/mortgage; zoning, and subdivision ordinances for
coverages, Covered Risk 2(c) in the minimum plat requirements and de-
2006 (and proposed 2021) ALTA policy 2. In the commercial real estate
tail. [In Florida, reference should also
forms requires a “survey reading” of transaction context, it remains to
be made to the provisions of Chapter
a 2021 Standards compliant plat by be seen how the new procedures
472 “Land Surveying and Mapping,”
the underwriter in order to obtain a and commensurate expense of sat-
including without limitation Fla. Stat.
deletion of the otherwise applicable isfying underwriting conditions
§§ 472.025, et seq., Fla. Admin Code R.
standard survey exception. Moreover, will affect the timing and costs of
5J-17.052, et seq., and the applicable
endorsement coverages for the ALTA CRE transactions. Presumably
locality’s planning, zoning, and sub-
9 series, ALTA 17-06, ALTA 17.1- institutional lenders, conduit
division ordinances for minimum plat
06, ALTA 19-06, and ALTA 19.1-06, lenders, etc., will adopt objective
requirements and detail.]
among other special endorsements, underwriting criteria that mirror
the new minimum standards and The 2021 Standards on balance re-
also presumably require additional flect changes that continue a trend
new underwriting of a 2021 Standards detail in the 2021 Standards; and,
away from historic minimum require-
compliant survey. The standard policy 3. It remains to be seen how the new ments for surveyor scope of work. It is
terms and conditions do not express- 2021 Standards and detail will af- essential that lenders, attorneys, and
ly adopt the ALTA/NSPS standards; fect local planning, zoning, subdi- others who order, use, and rely upon
however, they have been the practical vision, and related requirements surveys become familiar with the 2021
benchmark for underwriting purposes and procedures. Standards.
for decades. Under Standard 7 of the 2021
As the new 2021 Standards are Standards, the requirements provide Endnotes
implemented, the ripple effect will
limitations upon a surveyor’s ability 1 Multiple electronic versions are available
additionally beget a broad range of
to deviate from the mandatory form in PDF format. Note that the ALTA website
timely practical issues worthy of includes a copyright reservation and registered
certification, confirming compliance
consideration: trademark notations as to the 2021 Standards.
with the 2021 Standards. A deviation
2 Recent discussions with staff counsel at
1. In the context of foreclosures, is permitted only if required under several national title underwriters indicate that
deed-in-lieu, and related trans- applicable federal, state, and/or local historically these requests have not been made
actions, lenders/loan servicers/ laws, rules, regulations, etc. Pursuant regularly, to date.
Seeking a new position?
Need a new associate?
The Florida Bar
Career Center
can help!
Whether you are an attorney seeking a new position in Florida or an employer who needs a new associate for your legal
practice, The Florida Bar Career Center is just a click away at www.floridabar.org.
Job seekers can search available jobs, create a FREE job seeker profile and even post a resume anonymously.
Employers can reach qualified professionals by posting jobs for a reasonable fee and creating a FREE employer profile.
Just click on the link above to get started!
flabaroutofstaters.org 6 State-to-State — Winter 2021
FOR YOUR PRACTICE
Best Practices Guide for a Firm’s
Pro Bono Policy
The Pro Bono Committee of the Comply with other firm proce- services outside The Florida Bar’s
Business Law Section of The Florida dures for pro bono intake, if criteria, that the attorney may not list
Bar has developed this Best Prac- applicable those activities as qualifying on the
tices Guide to encourage you to adopt annual Bar application for renewal.
• Get any internal committee
a formal pro bono policy in your firm, These best practices are recommenda-
approval
or if you have a policy in place, to tions only, and a firm may adopt poli-
review that policy and determine Initial interview cies compatible with the firm’s specific
whether you wish to make changes • Confirm that the client qualifies for circumstances.
in accordance with these sugges- either the firm or referring agen- Pro bono
tions. The Guide is set up to provide cy’s criteria for pro bono assistance
you with general comments and a • Legal services
checklist of recommended proce- • Request that prospective client • Rendered without charge or ex-
dures. Please feel free to send those bring knowledgeable parties and pectation of fee at the time service
comments to the current chair of applicable documents commences
the Business Law Section Pro Bono • Explain the scope of the attorney- Florida Bar pro bono
Committee; contact information for client privilege
the chair is available on the sec- • Pro bono legal services to the poor
Engagement letter
tion’s website at www.flabizlaw.org, • Charitable, religious, or educa-
where you can also find detailed • Client expectations tional organizations that serve the
commentary. • Arrangement regarding costs poor
BEST PRACTICES GUIDE FOR • Scope of services Other pro bono
A FIRM’S PRO BONO POLICY • What kind of reports and records • Individuals, groups, or organiza-
PREAMBLE: Pursuant to Rule should be sent tions seeking to secure or protect
4-6.1(a), “Each member of The Flor- civil rights, civil liberties, or public
ida Bar in good standing, as part of • Confirm the agreement with the
client or, if none, the firm’s policy, rights
that member’s professional respon-
sibility, should (1) render pro bono regarding disposition of the fee • Charitable, religious, civic, com-
legal services to the poor and (2) award munity, governmental, or educa-
participate, to the extent possible, in If needed – Declination letter tional organizations in matters in
other pro bono service activities that furtherance of their organizational
directly relate to the legal needs of • Statute of limitations caveat purposes, where the payment of
the poor.” These recommendations • Document preservation caveat standard legal fees would signifi-
are offered as a guide to formulating cantly deplete the organization’s
Open the file economic resources or would be
a policy for discharging that pro-
fessional responsibility. These best • Follow the firm’s procedure for otherwise inappropriate
practices are recommendations only, creating a client number, billing What is not pro bono
and each firm may consider adopting codes, and time entries
• Legal services written off as bad
those which are conducive to the • Send any paperwork required by debts
firm’s specific circumstances. firm procedures that the client
needs to review or sign • Activities that do not involve the
A. INITIAL INTAKE provision of legal services, such as
General comment – The pro bono cli- • Send any other preliminary notices community service or serving on a
ent should be treated for all matters the law requires board of directors
and purposes the same as any other B. DECIDING WHAT IS PRO
client of the firm (except with respect • Free or reduced fee work that an
BONO attorney provides to a client for
to billing). General comment – The firm’s policy purposes of goodwill
Conflict check should define the legal services or
other activities that will qualify for • Legal services provided for an em-
• Conflict by parties ployee of the firm
pro bono credit under the policy. The
• Issue preclusion firm does not need to limit itself to • Legal services provided for friends
• Other reasons that the firm should The Florida Bar’s criteria, but should or family members of employees of
not take the case make clear, if the firm recognizes the firm
flabaroutofstaters.org 7 State-to-State — Winter 2021
Credit for time spent on pro assigned to pro bono matters
BEST PRACTICES bono client matters • Make available to both law-
from preceding page • “Billable” credit to the same ex- yers and non-lawyers necessary
tent time is credited for other cli- training to assure competent
ent matters representation
• Legal services provided for the - With or without an hours cap E. FEES AND COSTS
benefit of a religious or education-
• Non-billable General comment – When a matter
al organization with which the
is accepted and approved for pro
attorney is affiliated, unless the - Specify aspirational goal
bono representation, the engagement
work solely involves the charitable • Give credit for services provided letter should make clear that the
works of that organization or in- under auspices of qualified pro- client will not be charged for legal
volves the provision of other direct grams within safe harbor of Rule services provided and should also set
benefits for low-income individuals 4-6.6 out to what extent the client will be
• Other volunteer or charity work of Other Factors responsible for costs incurred in the
a legal nature or otherwise representation.
• Consider pro bono commitments
Safe harbor for short-term legal when determining an individual’s Costs
aid services programs availability for other assignments • Paid by client
• Rule 4-6.6 provides a safe harbor • Consider giving credit for rea- - Payment of a cost retainer at
for representation of clients under sonable time spent on training the outset
the auspices of recognized pro- required to represent an actual or
grams for short-term legal services - Monthly or other appropriate
prospective pro bono client
where a client’s interests are ad- billing
D. USE OF NON-LAWYERS FOR
verse to another present or former • Paid by firm
PRO BONO CASES
client, so long as the lawyer is not - Establish a procedure for pro
General comment – Pro bono cases
aware of any actual conflict. have the same importance to the firm bono attorney to request pay-
• Imputation of disqualification of as any other legal matter the firm ment by the firm of expenses in
other lawyers in the firm under undertakes, and they should be given pro bono matters
Rule 4- 1.10 is not applicable so long the same level of staffing, support, • Routine office expenses should be
as the lawyer is not aware of any and supervision in a manner that paid by the firm
actual basis for disqualification. will assure the provision of competent
and efficient representation to the cli- • Keep track of expenses in all cases
• This rule still requires a client’s in the event there is any opportu-
agreement that short-term ser- ent. Appropriate staffing is also more
efficient for the firm as the attorney nity for cost-shifting or reimburse-
vices are limited. Most legal aid ment, including a cost award
programs will have a form that can spend his or her time performing
includes this acknowledgement; legal services, rather than paralegal Fee-shifting
or administrative tasks.
attorneys should inquire when • Review contracts and applicable
they agree to participate in the Staffing pro bono matters statutes at the outset to explore
short-term program (usually legal • Give pro bono cases same level of possible bases for fee-shifting
aid clinics). staffing, support, and supervision • Options for disposition of attor-
• If the safe harbor applies, the as other firm legal matters neys’ fees recovered
Section A intake procedures are • Encourage paralegals and other - Apply to out-of-pocket costs
not applicable as the representa- firm employees to participate in that were advanced by the firm
tion will last only so long as the pro bono service if capable with
clinic in which the attorney is - Donate to legal services or pub-
appropriate supervision lic interest organization from
participating.
• Track paralegals’ pro bono time which the case was referred or
C. HOW CREDIT IS GIVEN FOR consistent with firm’s customary other appropriate charitable
PRO BONO CASES timekeeping procedures organization
General comment – The firm should • Consider pro bono service in para- - Create firm pro bono fund to be
have a policy that sets forth the man- legals’ evaluations and compensa- used for out-of-pocket expenses
ner in which pro bono service will be tion decisions in other pro bono matters
recognized—will the hours be credited
to the attorney’s billable goal; if so, • Devote same levels of administra- - Apply the fee award as pay-
will there be a “cap” to that credit? tive, word processing, duplicating, ment for the reasonable cost of
Will the hours receive no “credit” ex- and similar support resources as legal services provided
cept that the firm will consider the other firm legal matters • Discuss with potential client (and
pro bono service in compensation de- • Supervisors should provide ap- confirm in writing) the firm’s poli-
terminations? Will the firm have a propriate guidance to attorneys, cy on disposition of attorneys’ fee
“non-billable” requirement? paralegals, and support staff award
flabaroutofstaters.org 8 State-to-State — Winter 2021
General comment – Rule 4-6.1(c) al- Submit the plan to the local Cir-
BEST PRACTICES lows a law firm to develop a “plan” cuit Pro Bono Committee
from preceding page pursuant to which one or more attor- • Determine whether your plan re-
neys may perform pro bono services quires approval by the local Circuit
the hours for which will be credited Pro Bono Committee
Funds acquired in connection toward other attorneys in the firm.
with resolution of pro bono • Whether or not approval is re-
Develop a voluntary collective quired, file your plan with the local
matter satisfaction pro bono plan Circuit Pro Bono Committee
• Funds earmarked for a specific • Develop a plan that sets forth what
purpose must be used in that • If approval is required, submit the
kind of work will be done and by plan to the local Circuit Pro Bono
manner whom Committee with the appropriate
• Pursuant to Bar rules, attorneys’ • The plan must describe how the approval form(s)
fees awarded are not to be given to hours will be distributed so the
or shared with client hours can be accurately reported Endnote
• Recovery of costs may be shared on The Florida Bar annual report- 1. The materials for this section were
provided by the Business Law Section Best
with client if the firm decides to ing form Pro Bono Practices Guide for law firms. The
forego reimbursement of out-of- • The plan should credit the pro Business Law Section Pro Bono Committee
pocket costs advanced bono hours accrued under the plan made use primarily of the Thirteenth Judicial
Circuit, which has developed a formal “SHARE”
F. COMMITTING TO PRO BONO among the firm’s lawyers in a fair program (Sharing Hours and Reaping Equity)
THROUGH DEDICATED STAFF1 and reasonable manner and related forms.
FLORIDA BAR News
Dennis F. Fountain receives 2021 Bar
President’s Out-of-State Pro Bono Award
Each year, the Even now since he has closed his most prolific performers on the Free
president of The practice in Central Florida and re- Legal Answer site.
Florida Bar selects tired to rural Virginia, he continues Fountain said the program re-
one recipient from to help those in need through the minds him of why he chose the law
each Florida judi- Florida Free Legal Answers website, as his life’s work. “I hate to see people
cial circuit and one the state’s virtual legal clinic. taken advantage of,” he said. The
out-of-state Flori- The Florida Free Legal Answers site is tailor-made for Fountain. Ad-
da Bar member to site went live on May 1, 2017, and mitted to The Florida Bar in 1979,
receive the Presi- since then 10,716 questions have been the University of Florida graduate
DENNIS F. dent’s Pro Bono asked and Fountain has answered spent most of his career in Central
FOUNTAIN Service Award. The 2,756 of them. Long before the pan- Florida but now lives in the Cumber-
Out-of-State Pro demic shuttered most courthouses land Mountains in rural southwest
Bono Award Selection Committee, to the public and forced tens of thou- Virginia.
composed of Brian Burgoon (chair), sands of legal proceedings online, Free “I wanted to fulfill my obligations
Cullan Jones, and Duffy Myrtetus, Legal Answers was demonstrating to perform some form of legal ser-
received nominations on behalf of a the convenience of digital practice, al- vices for the folks who needed legal
number of well qualified candidates. lowing attorneys to log in at any time services, and I don’t like the idea
This year’s recipient of the President’s and answer questions anonymously of writing a check and having the
Out-of-State Pro Bono Award is Den- while earning credit toward pro bono money go to a place that I have no
nis F. Fountain. Florida Bar Presi- reporting requirements. Fountain control over,” Fountain said.
dent Dori Foster-Morales presented has answered 25.48% of all questions Fountain does this pro bono service
the award to Mr. Fountain and the posted to the website, spending well because for him, it’s the right thing to
award recipients of the 20 in-state more than 200 hours helping those do. “No matter how small the injus-
judicial circuits in a virtual ceremony in need. For this service, he has been tice, I want to stop that level of injus-
before the Florida Supreme Court on recognized by the American Bar Asso- tice when I can,” said Fountain. “At
January 28, 2021. ciation as a PRO BONO LEADER. He least, I’ve touched some people’s lives
Dennis F. Fountain has an exten- has been referred to as a “workhorse” in a valuable way, and they know it,
sive record of pro bono volunteerism. by The Florida Bar for being one of its and that makes me feel good.”
flabaroutofstaters.org 9 State-to-State — Winter 2021
FLORIDA BAR News
Davis, Lesser vie for Bar presidency
Ballots for the race, along with Board of Governors and Young Lawyers Division Board of Governors contests,
were mailed around March 1 and are due back to the Bar’s elections company by 11:59 p.m. on March 22. Bar
members will again have the option of casting a paper ballot or voting online.
Board of Gov- “I’m a big believer in service to without regard to gender, race, eth-
ernors members the legal profession and have been nicity, or sexual preference, or any
Steve Davis of involved for over 20 years,” Lesser factor other than merit,” Davis said.
Miami and Gary said. “I’ve been very involved with “It also includes ensuring that gov-
Lesser of West The Florida Bar’s efforts to protect ernment attorneys, solo and small-
Palm Beach have the independent judiciary and the practice attorneys, practitioners in
qualified to run independent legal profession. But rural areas, the public sector, and
for Florida Bar what especially motivated me to run young lawyers have a meaningful
president-elect for Florida Bar president is the role voice in all aspects of Bar governance
STEVE DAVIS in the Bar’s 2021 The Florida Bar plays in providing and leadership, including service
elections. resources and services to help our on our committees and in section
The two candi- lawyers with their daily practice. I leadership. We will use technology
dates submitted especially understand this as a small to increase opportunities for partici-
the required peti- firm lawyer myself. It’s important pation, but our diverse Bar must be
tions by the De- as 60% of our lawyers are in small inclusive of all our members.”
cember 15 filing firms and solo practitioners. I want Finally, improving professionalism
deadline. Voting in to see more interaction with The involves many factors, he said, in-
this race and for Florida Bar and our lawyer members cluding supporting health and well-
Board of Gover- and this will be a major focus for me ness programs for Bar members.
nors elections will should I get elected.” “The Bar must also connect re-
GARY LESSER be in March. Davis cited access to justice, diver- sources that are tailored to each
The winner will sity and inclusion, and improving lawyer’s practice area and interests.
be sworn in as president-elect at professionalism as his top goals. The Bar will allow greater connec-
the Bar’s June Annual Conven- Access, he said, includes necessary tion to the professional programing
tion—when current President-elect funding for the judiciary and build- to meet our member’s needs,” Davis
Michael Tanner becomes Bar pres- ing on the greater use of technol- said. “Professionalism means pro-
ident—and then will become Bar ogy brought about by the COVID-19 tecting the independent judgment of
president in June 2022. pandemic to improve access to justice lawyers by safeguarding the lawyer
“I am running for president be- while protecting rights. ownership of law firms. Florida law-
cause I have a passion for our pro- “Another aspect of access to jus- yers’ professional judgment must be
fession … . It is my genuine and tice is safeguarding the significant paramount for serving our clients.
deep desire to work to improve how benefits our members have enjoyed Florida lawyers need to represent
The Florida Bar helps all Florida through the unified Bar structure. Florida clients and I remain opposed
lawyers succeed,” Davis said. “The There remain challenges to our uni- to reciprocity.”
Bar must serve all of our members: fied Bar status, which could ulti- Lesser said within the overall
government lawyers, solo practitio- mately change the court’s regula- premise of protecting the indepen-
ners, small firm lawyers, larger firm tion over us,” Davis said. “Access to dence of the judiciary and the legal
lawyers, and in-house lawyers. This justice means we need to support the profession, which he called “our 24/7
is truly a critical time for all of us, legal aid and legal services providers mission,” he has three goals.
and we must consider what happens in Florida through our continued The first to both improve Bar ser-
to our profession after we get through pro bono work and support for those vices—such as free CLE, the Member
the pandemic. The Bar needs strong organizations.” Benefits Program, and mentoring op-
leaders as we navigate the post- On diversity, “The Bar must ad- portunities—for members and make
COVID world to take advantage of vance the opportunities for inclu- those members more knowledgeable
the real opportunities for the Bar to sion for all lawyers in our profession. about those resources.
do more to help our members.” This means there must be equality “I would promote direct and regular
flabaroutofstaters.org 10 State-to-State — Winter 2021“This would be an important piece Lesser said. “While I have some
Bar presidency of the larger ‘Access to Justice’ is- things I definitely want to get ac-
from preceding page sue that needs to continue to be a complished as Florida Bar president,
priority.” this will only happen by working
Both Lesser and Davis cite their with and listening to other lawyer
communication of these member ben- practice, local bar, and Bar experi- leaders and working with voluntary
efits and services to our Florida Bar ence in preparing for presidential bar associations.”
members, and push out this infor- duties. Davis, who has been a partner at
mation directly and regularly to our Davis is a former president of Boies Schiller Flexner LLP for 19
members, working with our great the Dade County Bar Association, years, received his undergraduate
voluntary bar associations,” Lesser where he also served as a committee degree in accounting from the Uni-
said. chair and a member of the board of versity of Florida and his law degree
Next, “I’m a big believer in provid- directors. from the University of Miami, where
ing equal opportunity in our profes- “As president of the DCBA, I ac- he was articles and comments editor
sion for all lawyers regardless of tively recruited a diverse cross sec- for the Law Review.
race, gender, sexual orientation, or tion of lawyers to serve on our board,” He practices in complex commer-
geographic location. Words like di- he said. “I was recognized for that cial litigation, especially in antitrust,
versity and gender bias are not just effort by the Miami-Dade Chapter real estate, and class action cases.
slogans to be repeated, but require of the Florida Association for Women Prior to joining Boies Schiller, Davis
constant analysis and conversation Lawyers in 2011 when they honored was a Florida special assistant at-
to make sure that we are doing the me with the Honorable Theodore torney general in a complex antitrust
right job, to make sure that every- Klein Award, which ‘recognizes a case, and he has handled several
body has a seat at the table,” he male member of MDFAWL who has other complex cases in state and
said. “We need actual plans that demonstrated initiative and dedica- federal court.
can be discussed meaningfully and tion to women’s issues.’” He is a member of the Business
implemented in a real way to make A Board of Governors member for Law, Trial Lawyers, and Real Prop-
a difference. Meaningful discussion eight years and a lawyer for more erty, Probate and Trust Law sec-
will get us to the policy that we can than 30, Davis has served on the tions, and is the board’s liaison to
implement as The Florida Bar and Executive Committee since 2016 and the latter.
make a difference in diversity and has twice been chair of the Budget Davis is married with three daugh-
inclusion.” Committee. He is the current chair ters, one granddaughter, and two
Finally, Lesser wants to improve of the Communications Committee sons-in-law.
access to justice by helping many of and has served for the past four years Lesser, the managing partner of
the 80% of the public who think they on the Strategic Planning and Pro- Lesser, Lesser Landy & Smith PLLC,
cannot afford an attorney but do have gram Evaluation committees, among a 10-attorney personal injury firm,
the resources. He also wants to help others. received his undergraduate degree
lawyers meet those needs. Lesser has been a member of the in 1989 in international affairs from
“Many people have their first and Palm Beach County Bar Association The George Washington Universi-
sometimes only exposure to the rule since 1992 and has chaired its Pro- ty, and his law degree in 1992 from
of law by dealing with a lawyer, and fessionalism and Medical Legal com- the University of Miami, where he
being deprived of that opportunity mittees. He is finishing his 10th year was editor-in-chief of the law school
is a real loss for the population and on the Board of Governors where he newspaper.
for our lawyers,” Lesser said. “Our has three times chaired the Legisla- Prior to joining his present firm,
Florida lawyers are facing real chal- tion Committee and served on the Lesser was an intern while in law
lenges with competition from non- Executive Committee since 2015. school at Aronovitz Trial Lawyers
lawyer entities who can advertise He has also served on several other and he also worked with the Miami-
on billboards, online, and elsewhere board committees including the Con- Dade County Homeless Legal Project.
and they are not governed by our stitution Revision Commission and He has handled personal inju-
ethics rules. I would support a public Strategic Planning panels. ry cases ranging from motorcycle
education program on the benefits “My leadership style is very col- accidents and motor vehicle wrong-
of hiring a lawyer versus trying to laborative, which is the best way to ful deaths to pedestrian deaths and
handle things on your own. get the best solutions and results,” damages in a sexual abuse of a minor
case.
Lesser belongs to the Health Law
Section, where he also serves as
board liaison, and to the Real Prop-
erty, Probate and Trust Law and
Trial Lawyers sections.
He is married with three daughters.
Reprinted from The Florida Bar News.
flabaroutofstaters.org 11 State-to-State — Winter 2021FLORIDA BAR News
Q&A with the Bar president-elect
candidates
1. The pandemic dominated 2020 The Bar created a special COV- practices and their livelihood. It’s
and is expected to continue well ID-19 webpage that highlights im- been harder for small firms and solo
into the new year. What has the portant information and resources practitioners, and now we have so
Bar learned and how can it con- members need during this crisis. That called “qualified providers” (many
tinue to assist its members and webpage compiles information from continue to not register with the Bar)
the public during these difficult all over the state as well as the infor- who compete with our lawyers who
times? mation collected from the COVID-19 must follow ethics and other rules,
Pandemic Recovery Task Force lead unlike these other non-lawyer refer-
Steve Davis: The Bar has reacted by President-elect Mike Tanner. ral sources which are increasingly
well to the pandemic and keeps learn- present, including a growing social
ing to improve. First, the Bar staff has Gary Lesser: COVID was a wake- media and internet presence. We
kept providing service at the levels up call in so many ways. None of should help level the playing field. We
Florida lawyers need. Currently 80% us were equipped to deal with the must better serve our members with
of Bar staff works remotely. Second, magnitude of a pandemic. There was practical help, articles, and services
all Board of Governors (BOG) meet- a terrible loss of life, and many busi- to facilitate networking, mentoring,
ings have been virtual since March nesses—including many law firms— technology, and other assistance. We
[2020]. The BOG has worked hard suffered significant losses of clients already have these in place, and we
during this time. The sections and and income. I think the Bar “upped” need to increase member access to
committees have also functioned well its level of communication with our these services.
with most only meeting virtually. membership like never before. This
According to a survey of section and needs to continue and expand. We Another big issue concerns is the
committee chairs, most felt the sec- should listen and provide open, direct disconnect some lawyers feel with
tion and committee work was done communication with our members respect to The Florida Bar. In the last
well virtually. While everyone would on a regular basis. We’ve developed contested election, despite very good
prefer in-person meetings, the virtual incredible resources and tools to help candidates, only 18% of our member-
platform has enabled a great many to lawyers in their everyday practice of ship voted. This should be a huge
participate that did not do so before. law. I think we’ve learned that we wakeup call that we need to take ac-
The BOG approved moving the Fall were not up to speed on emerging and tive steps to better engage our mem-
Meeting to being totally virtual in the existent technology. This is an op- bership, making them more aware
future. The 2020 Annual Convention portunity for us to help our members of the amazing free CLEs, tools, and
was held virtually, and it broke at- understand and use our amazing, programs to help with their everyday
tendance records. All these show that free services and programs. With in- practice of law. We need to more ac-
there is a place for the virtual plat- creased communication, we can help tively collaborate with our amazing
forms to supplement the in-person them access the tools they need to voluntary bar associations all over
meetings and we will use this technol- move forward with their practice. Florida to further connect and assist
ogy to help all of our members and to our members.
increase participation in the future. 2. Other than the pandemic, what
are the top three issues facing Finally, lawyers are concerned
I do believe—as we see the isola- Florida lawyers and what can the about the future of the law, what will
tion for our members during the pan- Bar do to address them? things look like in the years ahead,
demic—the Bar needs to make sure especially in terms of communica-
we are doing all we can to help our Lesser: The biggest issue facing tion and technology. Unfortunately,
members succeed. Florida’s lawyers is maintaining their some of the “guidance” provided is
Stay connected with the Out-of-State Division
Twitter: Facebook:
@TFBOutOfState https://www.facebook.com/
TheFloridaBarOutOfStateDivision
flabaroutofstaters.org 12 State-to-State — Winter 2021problem will only increase. The old adage rings true—today’s success
Bar president-elect Q&A Florida Lawyers Helpline is an is tomorrow’s challenge. This is an
from preceding page available, and to date, underuti- ongoing effort and heavy lift. As Bar
lized resource that members should leaders engage more with lawmak-
freely use. ers, we try to grow that open line of
from a 30,000-foot perspective, not communication.
necessarily helpful to the everyday 3. How can the Bar better work
practice of law. We have a very ac- with the Executive and Legisla- We have worked tirelessly with the
tive and forward-thinking Technology tive Branches of government to Executive Branch, and there are issues
Committee, whose work should be di- support the Judicial Branch and where we would like more agreement,
rected to identifying what affordable achieve its goal of a timely, fair, most notably on the JNC process and
law practice serving technologies can and impartial judiciary? the importance of funding civil legal
be brought to the most lawyers, and assistance programs, which have been
offering free or low-cost technology Davis: The Florida Bar has signifi- proven to financially benefit Florida
seminars to make sure that we best cant restrictions on its political activi- taxpayers. There are opportunities
serve our lawyer members. ties. The Bar is funded by mandatory for us to engage more and maintain a
fees from our members. The U.S. Su- good line of communication.
Davis: The pandemic has applied preme Court in Keller v. State Bar of
a lot of pressure to all of us, making California, 496 U.S. 1 (1990), held An impartial judiciary is the bed-
being a Florida lawyer challenging, that lawyers can be required to join rock of a healthy functioning democ-
and will forever impact the practice of a bar association so long as the bar racy, and citizens must have access to
law in Florida. I do not believe you can limits its activities to “regulating the justice (this is made even more clear
separate the effects of the pandemic, legal profession” and improving the in the age of COVID). The judicial
but I believe the three top issues fac- “quality of legal services.” That means branch receives an extremely small
ing Florida lawyers are: The Florida Bar—which spends more percentage of our state budget. We
than half of our money on lawyer must ensure that our court system
regulation—must be disciplined on has the proper funds to serve citizens
• Sustaining a thriving law prac- any political activities. The Florida and business with enough judges and
tice—Florida lawyers consistently Bar has done well in restricting its po- robust technological infrastructure.
list that there are too many law- litical activities to avoid matters that This is vital to our work and supports
yers. In the environment today, would be divisive among our mem- everything we do for the legal profes-
there are also non-lawyer service bers. Accordingly, the Bar must be sion and citizens of Florida.
providers. There is a Special Com-
an objective and consistent advocate
mittee on the Delivery of Legal
for Court funding, providing accurate 4. Are the Bar’s diversity and in-
Services looking at possible rule
detailed information to make sure the clusion, health and wellness, and
changes that should be imple-
Judicial Branch gets the necessary increasing professionalism ef-
mented. It is the Bar’s responsibil-
funding, but cannot be partisan or forts making a difference?
ity to advocate for our lawyers so
advancing any political agenda. The
they can successfully practice in
Bar will work well with the Executive Lesser: As to diversity and inclu-
the changing world. My priority
and Legislative branches by being a sion efforts, the short answer is “yes,
is to defend the independent judg-
credible, authoritative, and accurate but we need to do more.” I think so-
ment of the lawyers so that Florida
source on the needs of the judicial ciety was way behind (understate-
lawyers are representing Florida
branch. ment) on addressing these issues. But
clients.
I believe the Bar was ahead of the
Lesser: This is where the Bar has curve. We must keep the momentum
• Professionalism—Pre-pandemic excelled for many years. As Legisla- to achieve real diversity in committee
surveys showed this was a problem tion Chair, serving three different Bar appointments, leadership, and the ju-
many Florida lawyers identified as Presidents, I worked with leadership diciary. In my 22 years of Bar involve-
impacting them. There are many to safeguard our independent and ment, the Leadership Academy is one
professionalism programs and ini- properly funded judiciary. This in- of the best things implemented, and
tiatives, but the Bar needs to de- cluded ensuring the independent legal we should expand and strengthen it.
vote more resources to programs profession free from outside regula- The success speaks for itself in terms
such as Proactive Management tion. I learned a great deal working of its alumni who serve as Bar lead-
Based Regulation (PMBR). PMBR on these issues for many years. First, ers, on Bar committees, and the Board
is a way we can help our members, like most things in life, it’s about re- of Governors, and many members of
protect the public, and advance lationships, and building on those the judiciary. But we need more than
professionalism. relationships to reinforce why the slogans. Our active Diversity and
independent judiciary is the bedrock Inclusion Committee, and their great
• Mental Health/Isolation—No one of our system of government. I believe work should be evaluated, strength-
likes the pandemic, and it has led we’ve done this well with the Leg- ened, and supported. We should con-
to isolation and stressed mental islative Branch, and I have worked nect with the programs at voluntary
health for everyone. Unfortunately, many years with the leadership in bars, law schools, and elsewhere to
the pandemic remains and this both parties and both houses. But the improve and increase our efforts.
flabaroutofstaters.org 13 State-to-State — Winter 2021all of us that the work on diversity profession works. I started with com-
Bar president-elect Q&A and inclusion must be a fundamental mittees and enjoyed working with
from preceding page core of everything the Bar does. The lawyers who also love the profession.
focus should be on inclusion—so that I then worked my way through lead-
diverse voices have real input on all ership in the Dade County Bar, work-
On mental-health issues, I think Bar activities. Programs such as the ing from committee chair to board
the Bar is a national leader. We were #YLDisME is an example of how the member and to ultimately become
early in addressing the unique men- Bar should approach these items. president. Nothing is better than
tal-health issues of the legal profes- working with the lawyers and judges
sion. Kudos to Presidents Michael Health and wellness initiatives ef- who lead our profession. Collaborat-
Higer and Dori Foster-Morales for forts have brought awareness for ing with these leaders gives one a
making this issue a visible prior- all Florida lawyers to take care of very encouraging and optimistic view
ity. I also thank and acknowledge themselves. The YLD’s #StigmaFree- of our profession. That view has only
the Young Lawyers Division for its YLD provided examples that seeking expanded as I have served on the
significant, meaningful work with help is a positive step. In May 2020, BOG since 2013 and the BOG’s Ex-
surveys, webinars, and especially we launched the Florida Lawyers ecutive Committee since 2016. There
the outstanding #StigmaFreeYLD Helpline to provide an available re- are many great lawyers, judges, and
program. source lawyers in need can use. The justices in this state who I have had
Bar will build on these programs. the privilege of working with these
The Bar has always excelled at past eight years.
professionalism programs, messag- Professionalism—the Bar has
ing, and services, so we lawyers are many excellent professionalism pro- Lesser: I was very lucky. I was very
our “best selves” in the practice of grams that should be reviewed to involved with the Palm Beach County
law. “Pro Tip Tuesday” is one of the make sure we are focusing resources Bar Association and enjoyed that
many great programs and initiatives in the right areas. The Bar should work, especially on professionalism
of the award-winning Henry Latimer evaluate PMBR programs to make issues. My mentor at the time, Bar
Center for Professionalism. It’s a vi- sure we are reaching the lawyers President Tod Aronovitz, strongly
tal tool for Florida lawyers. who are in most need of support. encouraged me to apply for my first
committee appointment over 22 years
Davis: The Bar’s efforts are mak- 5. What drew you to Bar work? ago. He encouraged me to seek to be-
ing a difference, but the Bar must come chair of the Professional Ethics
remain vigilant in these issues. This Davis: I love being a lawyer and Committee. He was one of the people
year we saw social justice issues tell have always cared about how the who encouraged me to run for the
Florida Bar information
now on your smartphone!
www.floridabar.org/memberbenefits www.floridabar.org/cle
flabaroutofstaters.org 14 State-to-State — Winter 2021You can also read
