The Florida Bar Journal 1998-01: Vol 72 Iss 1

81 Pages·4.3 MB·English

THE FLORIDA
VOLUME LXXII, NO. 1 JANUARY 1998
BARJOLRISAL
u
/
1
I
I
Years 0/ pnict'iciiv^eHtcrtdifuuent hnn liid
— Y1:AIvS of pnicf/dni!^ sopnino Sdx: 53
Gl.ihNI'S ;;y/A#/ hi/s: f>^') (dud codnl/riaj
Al^PHARANChS bvfore the ( ..S’. Supreme C ourt: 1
Ari’l ARANCl S ir 'ith the Pri'seridt/ou I lull Jup::^ Huud ut C.uruejpe I lull:
Quote • "I'm the luckiest iijty uHre.
! oet f() mrt allwy heroes'^
'
LAWYER
BY DAY
JAZZMAN
BY NIGHT.
How does Elliot Hoffman
manage such a full life? He
uses West Group. Our fully
integrated research tools
now cross-reference case law
and statutes with leading
commentaries like ALR and
Amjur—all linked together in
one comprehensive system.
So, like Elliot, you’ll be able to
spend less time on research
and more time practicing
what you love. Night and day.
#
WEST
GROUP
Bancioh-Whtney *Cbrk Bocxdmnn Cdkighon
lawyers Cooperative PuMshmg* WESTl/yV**Wnt fkjbkhing
1.800.328.9352
I I I |( )| I l( )l I MAN, Ihidint, /.(77//C c'' niilla/iiii, \(ir )<ni ( il\
www.westgroup.com
2 THE FLORIDA BAR JOURNAL/JANUARY 1998
Type in words describing what you’re looking for, then click Search.
comprehensive and authoritative legal information Search?!
LEXIS^-NEXI^ Xchange-■ [There Rre No More Like This]
It’s research... and more! You’ll get the full power
of the LEXIS-NEXIS services through the Internet
using your favorite browser. And only LEXIS-NEXIS,
the world leader in information technology for legal
professionals, has the power to make it work. The
LEXIS-NEXIS Xchange service is coming soon to a
browser near you. For more information, call us toll
free at 1-800-S28-1891.
0 LEXISNEXIS
It's all you need to know
IAL1304I
member of the Reed Elsevier pic group
LEXIS ^ NEXIS are regstered trademarks arxi the INFORMATION ARRAY logo and LEXIS44EXIS Xchwige i ! trademarks of Reed Elsevier Properties Inc., used under license. Copynght 1997 LEXIS-NEXIS. a dMsion of Reed Elsevier Inc. At rights reser>«d
Letters
Comments on the not know what they will be asked in
President Whistleblower’s Act advance; those who are fired on the
Edward R. Blumberg
Richard Tlischman in “Another Look spot for refusing an order to commit
President-elect
at the Notice Requirement of the a crime could not have predicted the
Howard C. Coker
Florida Private Sector Whistleblower’s scenario and written a letter in ad¬
Executive Director
Act” (November 1997) seems to over¬ vance.
John F. Harkness, Jr. look the main reason for distinguish¬ That is why the legislature care¬
Board of Governors ing among the various forms of fully distinguished those who reason¬
First Circuit Alan B. Bookman; Second Circuit whistleblowing activity. ably could make an advance demand
Kelly Overstreet Johnson, Charles A. Francis; The statute requires written notice on the boss from those who could not.
Third Circuit Bruce W. Robinson; Fourth Cir¬ to the employer by an employee who This point is missed only by those
cuit Christine R. Milton, Henry M. Coxe III; Fifth
initiates or threatens to initiate an who really want to miss it.
Circuit Jean A. Bice; Sixth Circuit Morris
Sit)erTnan,Anthony S. Battaolia;Seventh Ckcuit official complaint of illegal activity
Edgar M. Dunn, Jr.; Eighth Circuit James G. with a government agency and who Richard E. Johnson
Feiber, Jr.; Ninth Circuit Bruce B. Blackwell,
seeks the statute’s protection for do¬ Tallahassee
Mki^ R McMahon;Tenth Circuit Jack P. Bran¬
don; Eleventh Circuit MUes A. McGrane III, ing so. This is so because such an
Herman J. Russomanno,Tod Arorrovitz, Manuel employee has the time and opportu¬ Although I found Mr. Tuschman’s
R Morales, Jr., CynthiaA. Everett, Ecfth G. Osm^,
nity to go first to the employer and article interesting and well written,
John W. Thornton, Andrew Needle, Stuart Z.
Grossman, Arthur H. Rice;TWelflh Circuit John seek correction of the illegal practice. I fail to see an ambiguity in the
C. Patterson, Jr.; Thirteenth Circuit Martin L. The latter two categories of Whistleblower Act language. F.S.
Garcia, Mark P. Buell, Marsha G. Rydberg; Four¬
whistleblower, those who are caught §448.102(1) specifically precludes a
teenth Circuit Dixon R. McCloy, Jr.; Fifteenth
Circuit Carol M. Brewer, Jerald S. Beer, Michael up in an government investigation or written notice requirement from the
P. Walsh; Sixteenth Circuit JamesT. Hendrick; proceeding that is not of their mak¬ other subsections of the statute
Seventeenth Circuit Michele Kane Cummings,
ing and those who simply refuse to where it reads, “However, this sub¬
David D. Welch, Wlsm a Spenoer, Jesse K Diner,
John Hume; Eighteenth Circuit S. Sammy violate the law and are fired as a re¬ section does not apply unless the
Caedatore, Jr.; Nineteenth Circuit Louis B. sult, have no chance to inform to the employee has, in writing, brought the
Vocelle, Jr.; IVventieth Circuit John P. Carditlo;
employer in writing before blowing activity, policy, or practice to the at¬
(XA<if-StateRichardA.lkvier,AnneL McGihon,
Michael P. Stafford; President YLD, Adam G. the whistle. Those who are ques¬ tention of a supervisor . . . .” Mr.
Adams III; President-eiectYLD, Frar4( M. Bedel; tioned in a trial or investigation may Tuschman reasons that the legisla-
Pubiic Members, Wilhelmena Mack, Ahrin E.
Smlh.
Editorial Board
Oath of Admission to The Florida Bar
Chair, Judge Thomas G. Freeman, Jr., Sanford;
VioeChair,JeffreyD.Kottkamp,FLMyers;Merr>-
The general principles which should ever control the lawyer in the practice
bers, Jonathan B Aronson, Coral Gables Aigela
of the legal profession are clearly set forth in the following oath of admission
M Baidirm, FL Lauderdale; MdorS. Cohen, lanpa;
JonathanT. Coby, Miami; Judge Steven P. Qdm, to the Bar, which the lawyer is sworn on admission to obey and for the willful
West Palm Beach; Judge Ba Jane Peebles Davis, violation to which disbarment may be had.
Talahassee; David Dermer, Mami Beach; Rich¬ "I do solemnly swear:
ard E. Fee, Tampa; Nancy S. Freeman, Winter
“I will support the Constitution of the United States and the Constitution of
Park; Gary S. Geffiney, Davie; Evelyn D. Golden,
the State of Florida;
lalahassee; Steven S. Goodman, Ft Laxlerdale;
Cifton H. Gorenfio, Sanford; RktiardA. Harrison, “I will maintain the respect due to courts of justice and judicial officers;
Tampa; Debra S. Hil, Ponte Vedra Beach;Tho- “I will not counsel or maintain any suit or proceedings which shall appear to
mas A. Kioaeffey, West Palm Beach; Judge Rand me to be unjust, nor any defense except such as I believe to be honestly
Hoch, West Palm Beach; Judge Lisa D. Kahn,
debatable under the law of the land;
Mettxxjme; Marlyne Marzi Kaplan, Hollywood;
Stacy Katz-Carchman, Boca Raton; Darren R. “I will employ for the purpose of maintaining the causes confided to me such
Latham, St Petersburg; Karen M. Linz, Dunedin; means only as are consistent with truth and honor, and will never seek to
Sally B. Mann, Tallahassee; Maureen M. mislead the judge or jury by any artifice or false statement of fact or law;
Matheson, Mefcoume; KathyA. Metzger, Stuart; “I will maintain the confidence and preserve inviolate the secrets of my cli¬
DonaidA. MffYikovich,1ampa; David K. Mier, Tal¬
ents, and will accept no compensation in connection with their business ex¬
lahassee; John W. Reis, Mi^; Laura S. Rotstein,
R. Lauderdale; Randel K Rewe HI, DeLand; Minay cept from them or with their knowledge and approval;
B. Siverslein, St Petersburg; Crystal C. Spencer, “I will abstain from all offensive personality and advance no fact prejudicial
Pensacola; Kimberly A. Stott, Tanpa; Robert H. to the honor or reputation of a party or witness, unless required by the
Sturgess, Jacksonvile; Rafael Suaiez-Rivas, Ft justice of the cause with which I am charged;
Lauderdale; Frances KToomey, Tampa; Keith H.
“I will never reject, from any consideration personal to myself, the cause of
Wadsworth, Lake Wales; Sarah E. Warren,
Sarasota; R. Craig Waters, Talahassee; Linda L the defenseless or oppressed, or delay anyone’s cause for lucre or malice.
Winchenbach, Ocala; Mark J. Wolfson, Tampa; So help me God."
Board Uaisort IMiele Kane Currvnings, R. Lau-
detdate._
4 THE FLORIDA BAR JOURNAL/JANUARY 1998
Each Corporate Kit features: • Checklist • Instructions • Work Sheets • 8 Tab Dividers • Stock Transfer Ledger • 25% Rag Minutes • 21 CertiAcates •
Padded Binder • Slip Box • Corporate Seal • Written Statement to Organize in Lieu of Minutes • Typewriter Spaced • Buy-Sell Agreement •
Independent Contractor Agreement • Employment Agreement • Stock Subscription Agreement • Indemnification of Officers and Directors Plan •
Deaffi Benefit Plan • IRC Election 248 PUm • “S” Corporation formerly Sub “S” Plan • MedicctI Plan • Voting Trust Plan • Shareholders Minutes •
Directors Minutes • Annual Shareholders Minutes • Power of Attorney Form • Special Power of Attorney Form • Shareholders Notice of Waiver •
Directors Notice of Waiver • Officers Notice of Waiver • Shareholders Proxy • Application for Sales and Use Tax • Application for Employer ID Number
• Pre-Printed Envelopes for Both Applications • Election by Small Business Corporation (Form 2553) • State Unemi^oyment Status ^plication.
ture intended the notice requirement public Whistleblower’s Act, F.S. refusal to participate in his employer’s
to apply to all subsections; otherwise §112.3187). Interestingly, the Second lawbreaking? Sadly, as the law now
it would not have included the “su¬ District acknowledges this duty as to stands in the Second District, an em¬
perfluous” language of F.S. the private act in the just-published ployee who is ordered to break the law
§448.103(l)(c). It could just as easily decision of Schultz v. Tampa Electric, immediately or be fired must now
be argued that the written notice re¬ 22 FLW D2561 (No. 96-03045, Octo¬ choose between keeping his livelihood
quirement applies only to subsection ber 17,1997), but ignored it completely or obeying the law. This result is nei¬
448.102(1); otherwise the language in its Potomac opinion despite the fact ther sound public policy nor a sound
quoted above would be “superfluous.” that that duty comprised the main construction of the act.
Logically, why would the legislature theme of the employee’s brief. (The As to “ut res magis valeat quam
include the above language if it in¬ ambiguity of the statute’s notice pro¬ pereat,” a rule which requires that
tended to have it apply to all of the vision is noted in Park v. First Union every provision of a statute be con¬
subsections? Brokerage Services, Inc., 926 F. Supp. strued as having a purpose, there is
Additionally, having the notice re¬ 1085,1089, n. 3 (M.D. Fla. 1996). no reason to treat that rule as trump¬
quirement apply to all subsections Likewise, there is no mention of ing the rule of liberal construction of
would prove to be an unreasonable the corresponding and “well-recog¬ a remedial statute; and in any event,
burden on employees in certain nized rule of statutory construction that rule has no application here,
cases. In those instances where an that exceptions or provisos should be where §448.103(1)(c) can readily be
employee has little or no notice that narrowly and strictly construed.” construed as making the writing re¬
he or she will have to testify to a gov¬ Samara Development Corp. v. quirement of §448.102( 1) mandatory
ernmental agency conducting an in¬ Marlow, 556 So. 2d 1097, 1100 (Fla. solely as to 448.102(1) causes of ac¬
vestigation, would an employee have 1990). “[T]he language of the . . . tion (informing government agencies
to decline testifying until written proviso should be strictly construed of wrongdoing). This construction is
notice could be given to the em¬ and limited to its narrowest applica¬ consistent with both the “liberal con¬
ployer? And, there is the potential tion. By applying this rule we reduce struction” rule and the “avoid mean¬
situation of an employer firing an to a minimum the restrictions on the inglessness” rule, for such a construc¬
employee whom the employer be¬ broader remedial statute.” Farley v. tion makes the writing requirement
lieves will be asked to testify. Should Collins, 146 So. 2d 366, 368 (Fla. of448.102(1) mandatory rather than
the employee not have any recourse 1962) advisory, so that it avoids the fate of
in that situation? Yet another omission is the fact that the statutory mode of service provi¬
The ideal is that an employee would the public Whistleblower’s Act restricts sion in Patry v. Capps, 633 So. 2d 9
be able to provide written notice to give its written notice requirement to the (Fla. 1994), which was held to be
an employer the chance to cure the first of its three main clauses (i.c., advisory rather than mandatory, de¬
wrong. Unfortunately, the ideal situa¬ §112.3187(7), first clause) in exact par¬ spite the statute’s use of the manda¬
tion rarely exists and the legislature allel to §448.102 of the private tory term “shall.” F.S. §768.57(2),
has clearly taken that into consider¬ Whistleblower’s Act, which limits its quoted in Patry, 633 So. 2d at 11.
ation with the Whistleblower Act. written notice requirement to the first I would be glad to e-mail a copy of
Melissa A. Hazlett of its three subsections, namely, the employee’s brief to any attorney
St. Petersburg §448.102(1). Similar statutes are to be who requests one. Attorneys without
construed in pari materia, Wakulla e-mail may obtain a copy by sending
As co-author of the employee’s brief County V. Davis, 395 So. 2d 540, 541- me an SASE and a blank floppy disk.
in Potomac Systems Engineering, Inc. 542; 49 Fla.Jur.2d §173, p. 207, and
V. Deering, 683 So. 2d 180 (Fla. 2d §174, p. 209, at n. 91; but in the George Zadorozny
DCA 1996), I would like to point out Potomac opinion, this requirement was [email protected]
some matters omitted from both the ignored. P.O. Box 125
Second District’s opinion and from The legislative history cited in the Oldsmar, FL 34677
the recent management-oriented ar¬ article is irrelevant because it says
ticle on Florida’s Private Sector nothing about requiring a “written”
Whistleblower Act, F.S.§§448.101- notice as to all three subsections of Postscript
105, in the November issue. §448.102, especially the one at issue Regarding the December article,
The crucial omission from both the in Potomac, namely, §448.102(3), “The Perils of (Reporting and) Not
opinion and the article is the require¬ which is supposed to protect employ¬ Reporting Sexual Harassment,” the
ment that this ambiguous statute, ees who have “[o]bjected to, or re¬ U.S. Supreme Court granted certio¬
being remedial, “must be construed fused to participate in, any activity, rari in the Faragher v. Boca Raton
liberally in favor of granting access policy, or practice of the employer case. A decision is expected in July
to the remedy.” Martin County v. which is in violation of a law, rule, or 1998.
Edenfield, 609 So. 2d 27, 29 (Fla. regulation.” Why on earth does an N. James Turner
1994) (construing the quite similar employer need an employee’s “written” Orlando
6 THE FLORIDA BAR JOURNAUJANUARY 1998
Diversify abroad with the
international no-load leader
How $10,000 Invested 9/30/87 Would Have Grown*
International Stock Fund
Lipper International Funds Average
$24343
$21,823
<*
$13379 5.378
$9,807 $10,307
A world of opportunities. Today, nearly
two-thirds of all stock market opportuni¬ the International StocKPund has success¬
ties lie beyond America’s shores. And fully identified many of the most promising
T. Rowe Price—the leader in international foreign investments for over a decade
no-load investing—is ready to help you and a half.
share in their potential rewards.
Explore your possibilities. If you’re
With our affiliate, Rowe Price- considering enhancing the
Fleming, we manage 11 foreign performance potential of
funds and $33 billion in stock PIHQII BHBHh your portfolio by diversifying
and bond assets. We also SOv£H’radfl", vris k-adjusted porormance. overseas, call us today,
The fund was rated among 637; 261;
work closely with a network aanndd9 922 iinn ternationaali eeqquuiittyy ffuunnddss Keep in mind, though, that
of more than 100 analysts for the 3-, 5-, and 1e0s-^yevaSr pye.r*io*d s international investing has
ended 10/31/97, respectively.**
stationed worldwide. - -^- special risks, including
currency fluctuation. Which is all the
T. Rowe Price International Stock Fund. Huuiuduur.. vv,„u, d.. uit.
Perhaps that’s why our flagship fund has more r''eeaassoonn ttoo iinnvveesstt wwiitthh aa lleeaaddeerr
who knows the way.
outperformed its Lipper Category Average knows the way.
over time. From the industrial leaders of PPaasstt ppeerrffoorrmmaannccee ccaannnnoott gguuaarraanntteeee ffuuttuurree
Europe to the emerging manufacturing rreessuullttss.. $$22,,550000 mmiinniimmuumm iinnvveessttmmeenntt
concerns of Latin America and the Far East, (($$11,,000000 ffoorr IIRRAAss)).. NNoo ssaalleess cchhaarrggeess..
Call 24 hours for your
T. IIO¥VE PRICE
INVESTMENT KIT froo invostment kit
Including a prospectus Invest mihCmfidrnce^iS^
Jbi T.RoweI¥ice Sk
*16.39%, 1L17%, 14.38%, 9*39%
'Strategic Insight Simfund. and are the fund’s average annual returns for the 1-, 3-, 5-, and lO-year periods, respectively, as of 9/30/97.
Figures include changes in principal value, reinvested dividends, and capital gain distributions. Investment return and principal value will vary, and shares may be worth more or less at
coemption than at original purcha.se.
**Morningstar proprietary ratings reflect historical risk-adjusted performance as of 10/31/97. These ratings may change monthly and are calculated from the fund’s 3-, 5-, and 10-year
average annual returns in excess of 90-day Treasury bill returns with appropriate fee adjustments and a risk factor that reflects fund performance below 90-day Trea.sury bill returns.
The fund received 3, 3, and 4 stars for the 3-, 5-, and 10-year periods, respectively. Ten percent of the funds in an investment category receive 5 stars, the next 22.5% receive 4, and the
next 35% receive 3. Read the prospectus carefully before investing. T. Rowe Price Investment Services, Inc., Distributor. isfo.v946i
President’s Page
Come to the Source: Come to The Florida Bar
T
hey were new in town. Just
been transferred. Mortgage
rates being low, it was a per¬
fect time to buy a home. Af¬
ter some searching, they found their
dream house and received a contract
from the seller’s broker to sign.
Words like “documentary stamps”
and “special assessment liens” were
ones they had not seen before. It was
clear they needed a lawyer, but they
did not know one. The couple looked
in the yellow pages, but the maze of
ads screaming out at them was con¬
fusing. Where could they turn to find
a residential real estate lawyer in
their neighborhood who could help CHECKING OUT the Lawyer Referral Service’s new announcement on the World Wide Web are (from left)
Executive Director Jack Harkness, YLD President Lep Adams, and President Edward R. Blumberg.
them for a reasonable fee?
If our prospective buyers had just Adams, president of the Young Law¬ the client to that association. We also
moved to Sarasota, Miami, Gaines¬ yers Division. True to form, Lep tack¬ have a program of low fees for the
ville, Daytona Beach, Lake Wales, led this project with great exuber¬ elderly poor and AIDS sufferers.
Panama City, or any of 47 Florida ance and innovation. We are thus The affluent have the wherewithal
counties, all they need do would be pleased to announce that in early to locate and retain lawyers. The poor
place a toll-free call to the Lawyer spring we will begin a public service can seek legal aid and pro bono law¬
Referral Service of The Florida Bar. campaign to let prospective clients yers. The great middle class, into
Trained employees of the Bar are on know that when they need a lawyer, which most of us fall, shall not be for¬
standby during normal business all they have to do is come to The gotten. There are many lawyers who
hours to receive calls from the pub¬ Florida Bar. would gladly provide representation
lic seeking lawyers, to screen the call, We have initiated a pilot program to the midrange client.
and to refer the caller to a lawyer in a small city (Gainesville), a mid¬ It is our plan to bring prospective
qualified to address the caller’s prob¬ size city (Sarasota), and a large met¬ client and lawyer together. If you
lem and happy to handle midrange ropolitan community (Dade County). would like to represent clients
matters at a reasonable fee. Through the use of well-placed and through the lawyer referral service
There is just one drawback in our memorable announcements in print of The Florida Bar, please call our
story: This new family in town never media and radio, legal consumers staff coordinator, Karen Kelly, at
heard of The Florida Bar, much less will be educated about hiring a law¬ [phone] for more details and
the Bar’s Lawyer Referral Service. yer and the availability of the Law¬ an application.
Now, however, this obstacle to re¬ yer Referral Service. The lawyers of Florida are sworn
ceiving affordable legal services is We have designed a method of to serve the people and to protect
being erased. The Florida Bar has tracking the success of the program. their rights. An important mecha¬
now formulated a plan of action to If the program is successful, and we nism to accomplish this exists with
reach out to the middle class citizens believe it will be, a similar program the Lawyer Referral Service. I urge
of this state to familiarize them with will be started in all 47 of the 67 you to give serious consideration to
our Lawyer Referral Service. Florida counties that are covered by
Since breathing new energy into our referral service.
our lawyer referral system was one In screening the calls, if a prospec¬
of my goals this year, I turned to tive client lives in a city or county
someone who has an abundance of covered by a local bar association re¬
energy and good judgment, Lep ferral service, we will promptly refer
8 THE FLORIDA BAR JOURNAGJANUARY 1998