The Florida Bar Journal 1997-01: Vol 71 Iss 1

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THE FLORIDA
VOLUME LXXl, N0.1 JANUARY 1997
BAR JO
Joint Ownership of Bank Accounts:
When Does a Spouse*s Interest in
jQcaunJ^. Survive Withdrawal hy the Qttir SpQusel^
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THE FLORIDA volume lxxi, no.i January 1997
BARJOIHim
ADVANCING THE COMPETENCE AND PUBLIC RESPONSIBILITY OF LAWYERS
Features
The 1996 Amendments to the Florida Construction Lien Law 16
by Joel W. Walters
Joint Ownership of Bank Accounts in Florida by Husband and Wife: 24
When Does a Spouse’s Interest in Accoimt Funds Survive
Withdrawal by the Other Spouse?
by Carlos A. Rodriguez
Cover art by Joe McFadden
Columns
Published monthly except July/August, which is a
combined issue, by The Florida Bar, 650 Apalachee Letters
Parkway, Tallahassee 32399-2300, telephone (904)
561-5600. Second class postage paid at the Post Of¬ The Topic Is Civility—^You Got a Problem With That?
fice in Tallahassee, Florida 32399-2300 and at addi¬ by John W. Frost, II
tional mailing offices. The Florida Bur Journal (ISSN
0015-3915). Seeking Justice, One Client at a Time
Subscriptions: Florida Bar members receive the
Journal as part of their annual dues payment. Non¬ by John F. Harkness, Jr.
member subscriptions are $35 a year; single maga¬
zine copies, 12 months old or less, $2; older than 12 Drafting WiUs for the Remarried Spouse
months, $5; September directory issue $30 ($25 to Bar by Trent S. Kiziah
members). Subscriptions and single copy sales sub¬
ject to Florida sales tax.
Advertising copy is carefully reviewed, but publi¬ Aggressive Planning for Florida’s Annual Intangible Tax
cation herein does not imply endorsement of any prod¬ by Joseph T Ducanis, Jr.
uct, service or opinion advertised. Advertising rate
cards will be furnished upon request. Views and con¬ A Practitioner’s Guide to the Taxation of Costs in Civil Actions
clusions expressed in articles herein are those of the
authors and not necessarily those of the editorial staff, by Theodore C. Miloch II
officials or Board of Gaw«nars oTITie Florida Bar.
*1997Hie FVxida Bar. IVinted in USA Postmaster Send The Convergence of Securities Law and the Internet
addiesBchanges to Hie Florida BarJbuma4Tbllahasee, Florida by Stephen G. Martin
32399-2300.
Concurrency and Moratoria
by David M. Layman
Visitation Centers: A Solution Without Critics
by Judge Bonnie S. Newton
Increasing the Community Spouse Income AUowance Through
Judicial Process: What Standard Applies?
by Nicola Jaye Boone
httpV/www.FLAB AR.org
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2 THE FLORIDA BAR JOURNAL/JANUARY 1997
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THE FLORIDA
BAR JOURNAL Oath of Admission to The Fiorida Bar
650 Apalachee Parkway
The general principles which should ever control the lawyer
Tallahassee, FL 32399-2300
[phone] in the practice of the legal profession are clearly set forth in the
Editorial Staff following oath of admission to the Bar, which the lawyer is sworn
Publisher John F. Harkness, Jr. on admission to obey and for the willful violation to which
Editor Judson H. Orrick disbarment may be had.
Managing Editor Cheryle M. Dodd
Associate Editor Melinda B. Mayo “I do solemnly swear:
Advertising Director Javier Cano “I will support the Constitution of the United States and the
Account Executive Amber Rummel
Advertising Assistant Cassandra Dixon Constitution of the State of Florida;
Circulation Wendee Whittaker “I will maintain the respect due to courts of justice and judi¬
Art Production Judith Nable
Communications Director cial officers;
Park M. Trammell, Jr. “I will not counsel or maintain any suit or proceedings which
Officers of The Florida Bar shall appear to me to be unjust, nor any defense except such
President John W. Frost II, Bartow as I believe to be honestly debatable under the law of the
President-elect Edward R. Blumberg, Miami
Executive Director John F. Karkness, Jr., land;
Tallahassee “I will employ for the purpose of maintaining the causes
Editorial Board confided to me such means only as are consistent with truth
Chair, Joseph F. Kinman, Jr., Tampa; Vice Chair, and honor, and will never seek to mislead the judge or jury
Frances H. Toomey, Tampa; Members, Joseph M.
by any artifice or false statement of fact or law;
Ciarciaglino, Jr., St. Petersburg; Victor S. Cohen.
Tampa; Jonathan T. Colby, Miami Beach; Crystal “I will maintain the confidence and preserve inviolate the
Collins, Pensacola; Judge Steven P. Cullen, West
secrets of my clients, and will accept no compensation in
Palm Beach; Ella Jane Peebles Davis, Tallahas¬
see; Ralph A. DeMeo, Tallahassee; DavkjA. Donet, connection with their business except from them or with their
Coral Gables; Richard E. Fee, Tampa; Nancy S.
knowledge and approval;
Freeman, Winter Park; Judge Thomas G. Freeman,
Jr., Sanford; Gary S. Gaffney, Ft Lauderdale; Evelyn “I will abstain from all offensive personality and advance no
D. Golden, Tallahassee; Steven S. Goodman, Ft. fact prejudicial to the honor or reputation of a party or wit¬
Lauderdale; Richard A. Harrison, Tampa; Thomas
A. Hoadley, West Palm Beach; Judge Rand Hoch, ness, unless required by the justice of the cause with which
West Palm Beach; Marlyne Marzi Kaplan, Holly¬ I am charged;
wood; Martin I. Klein, New York. NY; Jeffrey D.
Kottkamp, Ft. Myers; Darren R. Latham, Miami; “I will never reject, from any consideration personal to my¬
Karen M. Linz, Dunedin; Sally B. Mann, Tallahas¬ self, the cause of the defenseless or oppressed, or delay
see; Maureen M. Matheson, Melbourne; Kathy A.
Metzger, Stuart; Donald A. Mihokovich, Tampa; anyone’s cause for lucre or malice. So help me God.”
David K. Miller, Tallahassee; Melissa G. Mince,
SemirK)te; John W. Reis, Miami; Randell H. Rowe
III, DeLaiKf; Murray B. Silverstein, Tampa; Jesse L.
Skipper, St. Petersburg; Kimberly A. Stott, Tampa;
Robert H. Sturgess, Jacksonville; Rafael Suarez- LETTERS
Rivas, Ft. Lauderdale; Keith H. Wadsworth, Lake
Wales; Sarah E.Warren, Sarasota; R. Craig Wa¬
ters, Tallahassee; Linda L. Winchenbach, Ocala;
Mark J. Woifson, Tampa; Board Liaison, J. Allison
DeFoor II, Tavernier.
The Board of Governors
Something for Everyone
First Circuit Alan B. Bookman; Second Circuit Jon
Whitrrey, Charles A. Francis; Third Circuit Bruce Like many lawyers, I often save The quirements for common law certiorari,
W. Rol^son; Fourth Circuit Howard Coker, Henry
M. Coxe III; Fifth Circuit Roger L. Rice; Sixth Cir¬ Florida Bar Journal to read on air¬ the IRS trust fund recovery penalty, tax
cuit Morris Silberman, Anthony S. Battaglia; Sev¬ planes. This explains why I just recently aspects of mutual investments, chal¬
enth Circuit Edgar M. Dunn, Jr.; Eighth Circuit
James G. Feiber, Jr.; Ninth Circuit Bruce B. read the October issue. lenges to subpoenas from the Agency for
Blackwell, Lawrence J. Phalin, Lawrence G. I wish to commend the diverse and Health Care Administration, and other
Mathews, Jr.; Tenth Circuit Jack P. Brandon; Elev¬
enth Circuit Miles A. McGrane III, Herman J. informative articles which appeared in agencies, and the obligations of employ¬
Russomanm.Tod Arorx>vitz, Manuel R. Morales. Jr, that issue. While the Journal consis¬ ers vis a vis the Americans With Dis¬
Cynthia A. Everett, Edith G. Osman, John W.
Thornton, Jr., Dean C. Colson, Stuart Z. Grossman, tently contains high quality articles, the abilities Act.
Scott L. ^ena; Twelfth Circuit John C. Patterson, October issue was particvdarly notewor¬ In addition, there were provocative
Jr.; Thirteenth Circuit Martin L. Garcia. RicardoA.
Fernandez, Marsha G. Rydberg; Fourteenth Cir¬ thy. Although I rarely read biographi¬ discussions regarding workers’ compen¬
cuit Dixon R. McCioy, Jr.; Fifteenth Circuit Carol cal sketches, the presentation on sation law and marital versus non-
M. Brewer, Robert V. Romani, Michael P. Walsh; Florida Chief Justice Gerald Kogan was marital property in divorce proceedings.
Sixteenth Circuit J. AMison DeFoor II; Seventeenth
Circuit Michele Kane Cummings, David D. Welch. interesting and insightful. The featured There was something for everyone.
William S. Spencer, Jesse H. Diner, John Hume; articles on water management reform, I spent the better part of a day read¬
Eighteenth Circuit S. Sammy Cacciatore, Jr.;
Nineteenth Circuit Louis B. Vocelle, Jr.; Twenti¬ living trusts, and mediation were ing the October issue, and I consider it
eth Circuit John P. Cardillo; Out-of-State Marguer¬ thoughtfully written and skillfully pre¬ time well spent. I cannot wait to read
ite S. Boyd, Robert S. Weinroth, Michael P Stafford;
President YLD, Matthew J. Comisky; President¬ sented. the November issue.
elect YLD, Adam G. Adams; Public Members, Numerous other articles discussed
Wilhelmena Mack, Alvin E. Smith.
and highlighted a variety of issues fac¬
ing the legal practitioner. These in¬ Catherine B. Parks
cluded erudite discussions of the re¬ Coral Gables
4 THE FLORIDA BAR JOURNAL/JANUARY 1997
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The Tbpic Is Civility—
You Got a Problem \^th That?
“The only solution for the legal system is to
try to see to it that bad tactics don’t work.”
—^Vincent Cox, letter to the editor, ABA Journal
I
first met Bob Josefsberg about is left standing. I am not going to dis¬
cuss ethics today, nor will I discuss pro¬
25 years go when we both
fessionalism. Ethical decisions are of¬
served on the Board of Gover¬
ten made alone—made between you
nors of the Young Lawyers Sec¬
and your conscience. No one ever knows
tion. His warm humor, ready wit, and about them. Civility is different—it’s
deep intelligence were immediately rec¬ how you treat others. A civil and cour¬
ognizable in board interplay. It took a teous lawyer may, unbeknownst to you,
little longer than the first meeting, but be vmethical. And the converse is also
not much, to realize Bob is the kind of true; an ethical lawyer may be very
rude, contentious, and lacking in civil¬
lawyer who makes a difference in his
ity.
profession. It came as no surprise this
Professionalism is a larger category.
fall when I learned he has become the
It includes civility, ethics, being well
Dean of the International Academy of prepared, and doing pro bono work.
Trial Lawyers. That is a well-deserved Why do we confuse professionalism,
distinction. In the annual dean's ad¬ ethics, and civility? First because they
dress, Bob listed some clear, specific, and often overlap. Second, because even
though these three qualities are dis¬
practical strategies for promoting civil¬
tinct, there is a tendency for the law¬
ity in our profession, and although his
yer to rate similarly in all categories.
wit makes his talk appealing, he pulls Civility
There is a tendency for linking. I will
no punches. When you read the text of by Robert C. Josefsberg get back to the issue of linking of traits
his speech, which is reprinted in the re¬ My topic is civility—^you got a prob¬ later. Suffice it to say that most of the
mainder of this column, you’ll know why lem with that, Buddy? Unfortunately, time ethical lawyers are civil and pro¬
it provided, for me, one of those experi¬ the lack of civility in our society and in fessional. Unfortunately, some lawyers
ences wherein you read an article or hear our profession is not a laughing mat¬ are not ethical, not civil, nor profes¬
ter. sional. Ethics and professionalism are
a talk and say to yourself, "This is what
We are suffused with embarrassment in this very important, but in this short time
everybody has been trying to say—but
country about the decline of morality and that I have to speak. I’m not going to
no one has said it nearly as well. * Here look for reasons in our government, our attempt to cover ethics or professional-
is the text of his address: churches, our economists, our media. But ism.
among the most potent reasons must be the
failure of many leaders of the legal profes¬ What is civility? Or, rather what was
sion to accept their role as law enforcers— civility? As TYial Magazine in 1991
to act as the keepers of their clients’ con¬ states, “Whatever happened to civility?
science.*
If you’re imder 50 you’re probably run¬
In a system fixated on winning, ci¬ ning for the dictionary.”^
vility has become a meaningless issue, Civility is courtesy, dignity, decency,
discarded, not even debated by whoever and kindness. It has been defined in the
6 THE FLORIDA BAR JOURNAL/JANUARY 1997
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Virginia Bar Association’s Creed as fol¬ ence behaved perfectly. Have you been
lows: to a match recently? It’s a jungle out
Courtesy is neither a relic of the past nor a there. Likewise, the practice of law has
sign of less than fully committed advocacy. been described as hockey while wear¬
Courtesy is simply the mechanism by which ing suits.
lawyers can deal with daily conflict without The sad truth is
What can we do about this? What
damaging their relationships with their fel¬
low lawyers and their own well-being.* that we, or least can we do about incivility? It’s time to
stop merely defining the problem and
Civility is not inconsistent with zeal¬
some of us, blaming others. I want to discuss with
ous advocacy. You can be civil while
you how we, not the others, not the
you’re aggressive, upset, angry and in¬ just might be
judges, not the law schools, not the bad
timidating; you’re just not allowed to
part of lawyers—^but how we, you and I, can
be rude. Unfortunately, some lawyers
help solve the problem.
and the pubhc don’t imderstand the dif¬ the problem
I suggest that there are nine ways
ferences.
that you can improve the environment
A Colorado lawyer recently ex¬
of civility and if you will do any one, or
plained why he stopped practicing law:
"I was tired of the deceit. I was tired of a few of these, we can start to turn the
the chicanery. But most of all, I was tide.
tired of the misery my job caused other
Law Schools
people. Many attorneys believe that
‘zealously representing their clients’ fault if we sit idly by and let this trav¬ Stop merely (and uselessly) blaming
means pushing all rules of ethics and esty occur. I heard the introduction of them. Change the law schools, (jo to
decency to the limit. our new members this morning and it your fnendly deans and professors and
The civility problem is not new. It has was obvious that they are achievers, or persuade them, pressure them, bribe
a long history: perhaps over-achievers. They are mov¬ them with strings on your gifts and be¬
ers and shakers; they are the people quests. Tell them not just to teach ad¬
An attorney was disbarred in 1883 for con¬
duct unbecoming an attorney when he joined who can move moimtains in the court vocacy, but to teach civility, and while
a mob to remove a prisoner from jail and systems and in society. With all of this the)^re at it, have them practice what
hang him from an oak tree in front of the talent, with all of this power, if we faU they preach. A Federal Bar Association
courthouse. In 1884, a lawyer was held in
to act, we will be responsible. We will study panel concluded:
contempt of court for threatening the exam¬
iner during a deposition with an open knife be responsible for the destruction of our [T]hat the law school experience plays a
and using insulting and indecent language. noble profession. large role in fostering an atmosphere that
A year later—1885—a federal court re¬ The most frightening measure of what the promotes a lack of civility. On this score, the
marked that lawyers entering the ‘i«mple legal professional has lost is that most panel noted that the competitive nature of
of justice” armed with pistols should be Americans do not even remember the trust the law school experience, in which class
found guilty of contempt of court and dis¬ that society once placed in its lawyers. If a standing and grades are all-important when
barred. More recent examples of lawyers and new Alexis de Tocqueville came to America it comes to landing a good job upon gradua¬
incivility include threatening or using physi¬ today to study its laws and customs, he could tion, often influences the young lawyer’s
cal violence on opposing counsel, personal never come up with the idea that the law¬ approach to practice. Moreover, the Socratic
attacks on opposing counsel instead of legal yers were the country’s natural aristocracy. Method employed in legal education often
arguments disparaging jurors, exchanging Lawyers blame the law schools, the law results in the disparagement of the student
invectives and displa)ring contentious, abu¬ schools blame the lawyers, the judges blame by the professor. This has the unfortunate
sive, obstructive, scurrilous, and insulting the lawyers, the lawyers say the clients (or consequence of motivating the young law
conduct.* their sense that they must go the limit for graduate to engage in interpersonal rela¬
Fm sure you have all heard and read their clients) made them do it. Others blame tions that may be aimed at disparaging oth¬
a great deal about civility. But we al¬ the culture: It’s a jungle out there; ethical ers.®
standards are down wherever you look. Wall
ways assume it’s “the other lawyers” Get the law schools to make some
Street brokers who hold themselves out as
who are causing the problem and there¬ agents trade for their own account to their changes.
fore it’s the other lawyers, not us, who client’s disadvantage. Even the clergy seem
have the ability to solve the problem. more prone to scandal than they used to be. Judges
Why single out lawyers for the loss of ethi¬
The sad truth is that we, or at least Again, don’t just blame them: work
cal fibre at a time when ethical decline is so
some of us, just might be part of the widespread? Because lawyers are supposed with them, change them, and educate
problem. to be the custodians of a community’s legal them. There are two ways that judges
Interestingly, the anguish about the current and ethical sense.'' affect civility. First, they are role mod¬
state of affairs is not over the behavior of a It makes no difference that it is a els. Unfortunately, some judges are
few disreputable lawyers who abuse litiga¬
societal ill—that it’s not unique to our rude—not nearly as many as rude law¬
tion practices in ways that respectable law¬
yers from white-shoe firms would not. profession, that everyone is rude. yers, but there are some. Judges who
Rather, the concern is that, like Pogo, big- There’s rudeness in kindergarten; are rude to lawyers, witnesses, jurists,
city commercial litigators have met the en¬ there’s rudeness inACLF’s. Everything and everyone else. Don’t cover for them.
emy in themselves—litigators from the great has changed. If you went to a tennis Tell them that you will not accept their
national law firms are now perceived as very
match 30 years ago, there was dead si¬ incivility. Don’t let an Emperor’s
much a part of the problem.*
lence and absolute civility by the par¬ Clothes mentality permit you to toler¬
Secondly, even if it’s not our fault, or ticipants and the spectators. Chris ate rude behavior by judges. Everyone
your individual fault, it will become oiu* Everett and Arthur Ashe and the audi¬ aroimd a rude judge becomes rude in
8 THE FLORIDA BAR JOURNAUJANUARY 1997