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 958 Attorneys Can’t Be Wrong Over the past 5 years, we have assisted 958 Attorneys with their Products Liability, Medical Malpractice & Automobile Accident cases. US you your Let help and clients LYTAL, REITER, CLARK FOUNTAIN^WILLIAMS TRIAL ATTORNEYS JL 3-fistory of 3-[e[ping the InjurecC and Community Main Office: 1 800 654-2024 - - West Paim Beach, FL www.LytalReiter.com Experience ■ Resources ■ History Is your car SS-fc for your cFiM? “Join with us in the pursuit of justice.” F\ICCI-LEOPOLD.. CONSUMER JUSTICE ATTORNEYS We co-counsel cases throughout Florida. Palm Beach Gardens, FL 1.800.699.1914 riccilaw.com CRASHWORTHINESS INSURANCE BAD FAITH MANAGED CARE ABUSE PERSONAL INJURY WRONGFUL DEATH January 2007 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 (850)561-5600 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 (850) 561-5600. Perlodiccfc podage paid at the Pest Office in Tcrfc^rossee, Fkxida 32399-2300 end at additional mdling City, County and Local Government Law 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¬ ment. Nonmember subscriptions are $50 a year; single magazine copies, $5; September Real Property, Probate and Trust Law directory issue $45 ($35 to Bar members). Rasmussen Court Allows Both Spouses $125,000 Exemptions 43 Single copy soles sut^t to Florida sates tax. and Protects Appreciation Within 1,215 Days of Bankruptcy Adverti^ copy is reviewed, but publica¬ tion herein does rK»t irnpily erdorsernent of any by Barry A. Nelson product, service a opinion advertised. Advertis¬ ing rate cards will be furnished upon request. Labor and Employment Law Rates availabte by calling (850) 561-5601. 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 Tallahassee, FL 32399-2300 or e-mailed to [email protected]. Books 56 © 2007 The Florida Bor. Printed in U.S.A. POSTMASTER: Send change of address to The Florida Ba, MembersNp Records, 651 E. Jefferson St., Tallahassee, FL 32399-2300. Cover art by Joe McFadden 2 THE FLORIDA BAR JOURNAL/JANUARY 2007 Overwhelming odds? Don't reject any catastrophic injury case without talking to us first. Find out why: www.justiceforall.com KelleyiUustal TRIAL ATTORNEYS Fort Lauderdale, Florida 954 522-6601 - Catastrophic Injury | Wrongful Death | Defective Products | Medical Malpractice | Consumer Fraud | Business Litigation 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 IT’S SIMPLE: Let Empire Be Your Source For Corporate Kits One call puts the most complete corporate kit on your desk the next day. It’s that simple! Your client will be impressed and you save money with our professionally designed, logically assembled, incredibly easy to use....“corporate kit”. 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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. FOWLER WHITE BOGGS BANKER PROSKAUER ROSE Dario A. Perez, Esq. Chanley T. Howell, Esq. SHUnS& BOWEN FOLEY &LARDNER Clayton E. Parker, Esq. Jimmy Morales, Esq. KIRKPATRICK & LOCKHART STEARNS WEAVER MILLER NICHOLSON GRAHAM WEISSLER ALHADEFF & SITTERSON . STATUTORY REGISTERED OFFICES NATIONWIDE & OFFSHORE_ MIAMI CHICAGO AUSTIN DELAWARE (305) 672-0686 (773) 935-3920 (512) 506-8500 (302) 424-4866 PALM BEACH ATLANTA NATIONWIDE (561) 694-8107 (404) 995-0540 (800)672-9110 Corporate Creations Registered Agent • Director • Incorporation Services Incorporation Amendments and Mergers Qualification Document Retrieval UCC Services Independent Director Services Corporate Kits Registered Agent Services Copyright O 1993-2007 CORPORATE CREATIONS. lAi* “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