Volume 96 • January 2011 · Legal Aid announces major award winners By Jeffrey A. Ahren, Esq....

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President’s MessageBachelor parties as recruitment tools?

CalendarMake note of meetings, CLE and court holidays

Legal Aid NotesMajor award winners announced

Guest EditorialIs it time for an estate planning check-up?

Guardians ad LitemKids need your help!

The Traveling Fork®Rising Star

Adverse WitnessJanuary 2011

I S S U E H I G H L I G H T S

Tamara Lynne Nicola, EditorPublication Deadline: 10th day of month preceding publication

OfficersPresidentJon Scuderi

President ElectMaggie McMorrow

SecretaryTamara Lynne Nicola

TreasurerJeanne Seewald

Immediate Past PresidentPieter Van Dien

DirectorsJohn T. CardilloTara Miller DaneSonia DiazSharon HanlonStarling HendriksMarc HulingCarlo Zampogna

Executive DirectorLisa A. Mead

Collier County Bar Association3315 East Tamiami TrailSuite 505Naples, Florida 34112(239) 252-8711(239) 775-5858 [email protected]: 8:30- 4:30 p.m. M-Thu8:30-4:00 Fridays

Adverse WitnessEditorial Board

Page 2 Adverse Witness, January 2011

On the cover :An original photo by Lina Russell.

About this photo: “Bird Dogging Cases in SW FLA”The picture is of my 18 month old British Labrador “Major” and was taken by my girlfriend Lina Russell on my hunting lease outside Arcadia preparing for this year’s duck hunting. This year is Major’s first year of true duck hunting following 16 months of almost daily training. Since the picture was taken, Major has been on several successful duck hunts where all the hard work and training have paid off in spades. The satisfaction of hunting over a well trained bird dog is truly a rewarding experience and is a little like the satisfaction I get in commercial litigation where all the hard work, discovery and trial preparation results in a successful outcome for my clients. Any litigator who has worked hard to prepare for trial and enjoyed a successful verdict knows the feeling.I am a partner at Woodward, Pires & Lombardo, P.A. where I practice primarily in the areas of commercial litigation, personal injury and title insurance litigation.

I resolved this New Year to write better and more personal President’s Messages. Let me know what you think.

So my brother and friends threw me a bachelor party a few weeks ago. I was the last holdout of all my friends. I think all the married guys (everyone else) were more excited to go than I was. We really had a great time. It reminds me how I have always been blessed with great friends and family. Everyone decided to take me to the Hard Rock Casino in Hollywood. I had never been there before. While it’s not Las Vegas, it was perfect for what we set out to do.

I knew we were in for a fun night when we walked in the door. Six of us drove over from Naples. The rest would meet us later. You see, the women back home had insisted that we bring our own beverages in two rather large coolers. They were worried that the casino would hit us up for $5 a beer and we weren’t going over there to drink coca-cola. Well, those of us that had been in a casino before knew that bringing in coolers might be a dicey proposition. Like most places, they are rather insistent that you purchase their beverages and not bring in your own. So as we strolled into the lobby, which was one giant circle that surrounded the casino, half our party wandered off to the left. My father in law was in that group and he was the one pulling the wheeled cooler with the other cooler placed on top. Stacy had insisted that he come to make sure I had a “proper” bachelor party, knowing that he would be the wildest one. Well, the rest of us stopped to try and figure out which way to go in order to check in. As we looked around, we heard a loud crash. We turned around just in time to see ice and beer bottles scatter across the marble floor. Like I said, I knew we would really have a great time.

By the time you read this, the holidays will be over and we will just be starting a New Year. For me, this New Year will be a different life, although one I am very excited about. My bachelor party reminded me it is good to get away sometimes with family or friends and to especially stay in touch with those I don’t see much anymore. I’m tempted to suggest that I have a bachelor party every year but Stacy is hovering over my shoulder as I write this.

Speaking of parties, our Foundation is having one of their own on January 29, 2011 at Joe Stewart’s house. Make an effort to attend. To me, this is our best event. Larry Farese’s band is playing again and they really did a great job last year. This year, our Foundation will donate proceeds to Voices for Kids of Southwest Florida, a non-profit agency sup-porting Florida’s 20th Judicial Circuit Guardian ad Litem Program. They advocate for abused, neglected and abandoned children in court, the child welfare system and the community. We also have mock trial coming up in February. As always we need volun-teers to score the different rounds of the competition. I am up for another bachelor party if that will help recruit volunteers.

Finally, don’t forget the Ethics seminar put on by the Young Lawyers on January 7. This has always been an easy way to pick up your ethics credits.

We will be busy at the bar association this winter and spring. Of course, we are never too busy for our members, so drop in, and share your thoughts about how we are doing.

Stacy just went to bed. Let’s have a bachelor party again next year!

Adverse Witness, January 2011 Page 3

PRESIDENT’S MESSAGE By Jon Scuderi, Esq.

Bachelor parties as recruitment tools?

“ ... our Foundation will donate ... to

Voices for Kids of Southwest Florida,

a non-profit agency supporting Florida’s

20th Judicial Circuit Guardian ad Litem

Program.”


MARK YOUR CALENDAR

Event PolicyIt is the policy of the Collier County Bar Association to request that all reservations for our events are placed at least two days prior to the event.

We are always willing to accommodate our members; however, event sites must order food two days prior to an event.

Also, it is the policy of the Collier County Bar Association to issue refunds ONLY if a member cancels a reservation two days prior to an event. If a member cancels the day before, or the day of an event, a refund will not be issued.

We appreciate your consideration of this policy.

Register for any event through Hilda Taylor.

Phone: [email protected]

www.colliercountybar.org.

JANUARY

FEBRUARY

4 Trial Law Section Luncheon Bonefish Grill, 12:00 p.m. TL Section Members - $25; Non-members - $30

7 Young Lawyers Ethics Seminar Inn on Fifth; 8:00 a.m. – 12:30 p.m. YL Members - $50; Non-Members - $60

11 Family Law Assistance Program Volunteers needed to assist Pro-se litigants with paperwork If interested, contact Lisa Mead

11 Young Lawyers Board Meeting Mr. Tequila’s, 12:00 p.m.

12 Trial Law Board Meeting St. George and the Dragon, 12:00 p.m.

13 Real Estate Section Luncheon Carrabba’s, 12:00 p.m. RE Members - $20; Non-Members - $25

14 CCBA Membership Luncheon Naples Sailing and Yacht Club, 12:00 p.m. Members - $35; Non-Members - $40

18 CCBA Board Meeting CCBA Offices, 7:30 a.m.

18 CCB Foundation Board Meeting CCBA Offices, 8:30 a.m.

18 Inns of Court Location TBD, 6:00 p.m.

26 CCWBA Luncheon Northern Trust – Park Shore, 12:00 p.m.

27 Trusts and Estates Section Luncheon Northern Trust, 12:00 p.m. This is a free event – bring your own lunch

29 Foundation Bar-B-Q Hosted by Joe Stewart, 6:00 p.m. $40 per person or $60 per couple

1 Trial Law Section Luncheon Bonefish Grill, 12:00 p.m. TL Section Members - $25; Non-members - $30

4 & 5 Mock Trial Competition Collier County Courthouse Volunteers needed Contact Lisa Mead at 252-8711 if interested

8 Family Law Assistance Program Volunteers needed to assist Pro-se litigants with paperwork If interested, contact Lisa Mead

8 Young Lawyers Board Meeting Cosmo’s Pizza, 12:00 p.m

9 Trial Law Board Meeting St. George and the Dragon, 12:00 p.m.

10 Real Estate Section Luncheon Carrabba’s, 12:00 p.m. RE Members - $20; Non-Members - $25

11 CCBA Membership Luncheon Carrabba’s, 12:00 p.m. Members - $35; Non-Members - $40

15 CCBA Board Meeting CCBA Offices, 7:30 a.m.

15 CCB Foundation Board Meeting CCBA Offices, 8:30 a.m.

15 Inns of Court Location TBD, 6:00 p.m.

16 Family Law Section Luncheon Bonefish Grill, 12:00 p.m. FL Members - $25; Non-Members - $30

17 Judicial Appreciation Reception Naples Bay Resort, 5:30 p.m. – 7:30 p.m. TL Members - $15; Non-Members - $25 Judiciary and staff are invited as guests of the Trial Law Section

23 CCWBA Luncheon Northern Trust – Park Shore, 12:00 p.m.

25 Past Presidents’ Luncheon Bonefish Grill, 12:00 p.m.


LEGAL AID NOTES

Legal Aid announces major award winners

By Jeffrey A. Ahren, Esq.

Legal Aid Service of Collier County (LASCC) is proud to announce the recipients of the fol-lowing awards, to be conferred at the 3rd Annual Barrister’s Bash event at the Hilton Hotel in Naples on April 28, 2011:Hon. Janeice T. Martin Equal Justice Award – Beverly Brennan, Esq.Law Firm of the Year – Cheffy Passidomo, P.A.Attorney of the Year – Carlo Zampogna, Esq.Outstanding Volunteer Service Award – Brandy Woodson (Westlaw)Special Recognition Award – Pro Bono Service – Jennifer Tears, Esq. (In-House Counsel, Al-len Systems Group)Look for in-depth profiles on each of these award winners in upcoming issues of Adverse Witness. Legal Aid’s ‘Attorneys of the Month’ will also be honored at the Barrister’s Bash. Congratulations to each of our award winners!What is the ‘Barrister’s Bash?’ It is LASCC’s annual Fundraiser Dinner and Awards Cer-emony. All members of the legal community, as well as business and community leaders and all friends and supporters are cordially invited. Attending the Barrister’s Bash is a great way of demonstrating your support for Legal Aid, while honoring those who will be receiving awards for their outstanding pro bono service to the community. Legal Aid welcomes your support during these challenging times, when we have assisted a record number of poor and underprivileged clients during the economic downturn, while experiencing a significant reduction in certain key funding.The Details:Date: Thursday, April 28, 2011Time: 6:30 pm to 8:30 pmLocation: Hilton Naples (5111 Tamiami Trail North, Naples FL 34103)Ticket price: $75 per personFormat: The event includes dinner, cocktail hour, silent auction, and a community awards ceremony.For more information, call Jeff Ahren at (239) 298-8130, or visit www.legalaid.org/collier . We have also created a webpage for the event – www.barristersbash.org . There are wonderful sponsorship and advertising opportunities available. You can order tickets online, or by con-tacting Ana De La Cruz at (239) 298-8143, or by email at [email protected] .

4th Annual ‘Adopt-A-Family’ Holiday ProgramThe 2010 ‘Adopt A Family’ Holiday Program was a huge success – thanks to everyone who partici-pated this year!Legal Aid Service of Collier County’s ‘Adopt A Family’ Holiday Program provided gifts to 88 underprivileged children in Collier County this holiday season, thanks to the generosity of more than 30 donors. Since 2007, this Holiday Program has assisted ap-proximately 400 children and their families.This cooperative effort between Legal Aid and the Collier County Bar Association matches needy children in the greater Naples area with donors willing to provide toys, clothes, food and other gifts for the families. The families are identified

Legal Aid Service of Collier County is committed to working

alongside the private bar and membership of CCBA to make

the Collier Lawyers Care pro bono attorney program the best of its kind in the State of Florida. Two immediate

goals they want to achieve are increasing the number of pro

bono volunteer attorneys in the CLC program, and expand-ing public awareness about

CLC and the impact Legal Aid Service of Collier County has on the community by offering free civil legal services to the

underserved population of Collier County. To learn more

about LASCC and Collier Law-yers Care, contact Mr. Jeffrey

A. Ahren or Ms. Ana de la Cruz at (239) 775-4555.

continued page 11


By The Hon. Hugh Hayes

The Histories, William Shakespeare,King Henry VI, Act IV Scene 2.

Well, I guess that I could have picked a warmer and fuzzier way to start an article addressed to one’s colleagues of the Bar, but I suspect that I may have your undivided attention at this point. This insulting quote from “Dick the Butcher” back in 1595 has been bandied about as a bad lawyer joke at many a cocktail party over the centuries. However, especially in today’s society, one could easily replace “lawyers” with any Wall Street vocation…even the term “bankers” or “politicians”.

Possibly, my lamentations have been influenced by my recent readings of Our Kind of Trai-tor by John le Carre (a/k/a David Cornwell) and The Fall Of The House Of Zeus …The Rise and Ruin of America’s Most Powerful Trial Lawyer (Dickie Scruggs of Mississippi), written by Curtis Wilkie, or, just as likely, it is because of the haunting language used by Dick’s murder-ous friend Cade: Nay, that I mean to do. Is not this a lamentable thing, That of the skin of an innocent lamb should be made parchment? That parchment, being scribbl’d o’er, should undo a man? Some say the bee stings; but I say ‘tis the bee’s wax; for I did but seal once to a thing, and I was never mine own man since.

I can assure you that there are many litigants who are thinking Cade’s thoughts when they have recently been hailed into court to answer for their absolute and irrevocable guaranties that were given to some of the banking houses as collateral for real estate loans. Indeed, more than one litigant has essentially accused the bank of asking for his as yet unborn 3rd grandchild’s inheritance…similar to the acts of the Federal Reserve…these are indeed the times that are trying men’s (and women’s) souls.

My concern, like that of many, is that we shall soon find that the efforts of the ECB and the Federal Reserve to print more money, “24/7”, will not cure what ails us. Instead, it will just give further cachet to political satirists like P.J. O’Rourke who allegedly advises, “Don’t vote, it just encourages the bastards”. It actually could lead to a further concentration of power in the hands of the few and as we have heard on occasions too numerous to count, “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men”… Lord Acton in his 1887 letter to Bishop Mandell Creighton.

Interestingly, and to no one’s surprise, the greedy seem to get greedier according to Gordon Gekko, and it won’t take but one or two demagogues to renounce the banks and their debt to really make life quite uncomfortable for all of us. It’s kinda’ like the judge’s observations of Dickie Scruggs and his thirst for money and power when, in sentencing Scruggs in his second conviction (Scruggs II), author Wilkie writes: Instead of citing the wisdom of ancient Greeks, (judge) Davidson invoked Irish philosopher William Barclay: “The Romans had a proverb that money is like seawater. The more you drink, the thirstier you become.” p. 336.

Well, enough of the gloom and doom scenarios. Let’s hopefully learn some of life’s hard les-sons from some of our brethren and start off our new year being appreciative for the more valuable things in life, such as one’s family, friends and your hard earned reputation, for being servants of the people and the chosen leaders of our civil society. Be at war with your vices, at peace with your neighbors, And let every new year find you a better man. Ben Franklin.

“Dick: The first thing we do, let’s kill all the lawyers.”


At its December 10 meeting at Amelia Island, The Florida Bar Board of Governors:

• Heard from former Bar Director of Lawyer Regulation Tony Boggs on the importance of maintaining high standards in the Bar’s grievance and admissions processes, and the im-portance of having a balance in the discipline process that both protects the public and respects individual rights.

• Heard Investment Committee Chair Ian Comisky report that Bar investments are at an all-time high and have completely recovered from the 2008 market decline. He said the investment committee is slightly adjusting its short-term fund investments to up the percentage in the bond market to get higher returns in the current low-interest market. The new investments in managed futures and hedge funds have performed well and as expected. The board ap-proved the committee’s recommendation to replace Henderson International Growth with Harding Loevner as manager for part of the Bar’s international fund investments.

• Heard that the Bar had a good audit for the 2009-10 fiscal year.

• Approved, on the recommendation of the Board Review Committee on Professional Ethics, a modified Proposed Advisory Opinion 09-1 on contacting government employees when they are represented by counsel. Chair Carl Schwait also reported the committee voted 9-0 to uphold the Standing Committee on Advertising that a group seeking to compile a directory of Christian lawyers would constitute a lawyer referral service. Schwait presented two PAOs that were drafted by the Professional Ethics Committee at the board’s request. PAO 10-2 advises that lawyers must take reasonable steps to preserve confidential client information that may be captured and stored on hard drives of scanners, printers, and other computer-related equipment when that equipment is sold or disposed. That opinion is final because the board received no comments on the opinion and board members did not suggest any changes. The second opinion, PAO 10-3, addresses disclosing confidential information of a decedent at the request of a personal representative, beneficiaries, heirs of the decedent’s estate, or their counsel. Schwait said since comments had been received on this opinion, it will go back to the PEC at their next meeting.

• Approved the recommendation of the Program Evaluation Committee to create a new special committee to study lawyer referral services. Chair Greg Coleman also said the committee is continuing with its review of the Bar’s professionalism and paralegal programs.

• Heard from Clients’ Security Fund Procedure Committee Chair Greg Coleman that the committee is working with the Disciplinary Procedure Committee on developing forms and software to help attorneys meet Bar trust account regulations. DPC Chair Andy Sasso said the forms and software could reduce costs of the Bar’s grievance operations by reducing the number of cases prosecuted because of inadvertent errors on handing trust accounts. The DPC is also looking at modifying the trust account compliance statement on annual fee statements, treating those who do not respond as delinquent members.

• Approved a $50,000 budget amendment for the Bar’s diversity grant program and heard Dori Foster-Morales and Arnell Bryant-Willis, co-chairs of the Special Committee on Diver-sity, note the approval of money for diversity program grants earlier in the meeting. They asked board members to help get the word out to local bars that the money is available to support initiatives and programs which encourage diversity, diversity training and dialogue among lawyers in Florida through financial support of conferences, seminars, summits and symposia planned and hosted by local and specialty bar associations. The first deadline for grant applications is January 18.

• Approved on the recommendation of the Legislation Committee, a reauthorization of 13 legislative positions from the 2008-10 biennium for the 2010-12 biennium. The board with-held action on requested legislative positions from the Real Property, Probate and Trust Law

Meeting summary

BOARD OF GOVERNORS By Laird A. Lile and Scott Wm. WeinsteinGovernors, The Florida Bar, Twentieth Judicial Circuit

continued page 13


BULLETIN BOARD

Got news?Contact Lisa Mead by

calling 252-8711 or drop a line to

[email protected]

CLASSIFIEDPERSONAL PROPERTY APPRAISALS BY ELDRIDGE APPRAISALS INC. David C. Eldridge, senior member American Soci-ety of Appraisers, and Morgan W. Eldridge, member American Society of Appraisers, Automotive Specialties Group, have 39 years’ experience. USPAP ASA compliant, appraising fine and decorative arts, an-tiques, automobiles, residential concents, commercial vehicles, office equipment and furniture. 800-940-1819.

CONSTRUCTION EXPERT: Twenty years of experience in consulting and litigation support on cases involving construction. Cost estimating, forensic investigation, in-spections, dispute resolution, and expert testimony for all commercial and residential cases. Contact Joel Hazelbaker at 239-213-8046 or e-mail [email protected]. www.hazelbakerconstruction.com.

ANNOUNCEMENTSLOST WILL: If you have information con-cerning the Last Will and Testament of the late Estrella Carbonell, please contact the Law Offices of Christopher E. Mast, P.A., 1059 5th Avenue North, Naples, Florida 34102, Telephone No. 239-434-5922, Fax No. 239-434-6355.

The Collier County Bar Association re-cently formed an Historical Committee to preserve the history of our legal commu-nity. We are seeking additional committee members and looking for information, old photographs, newspaper clippings and oth-er memorabilia providing the historic sig-nificance of the legal community. Our first official meeting will be on Thursday, Janu-ary 20, 2011 from 12:00 p.m. until 1:30 p.m. The location is to be announced. Anyone interested in serving on this committee or providing information, please contact John T. Cardillo at 239-774-2229 or at [email protected].

Kent M. Amo is pleased to announce the opening of Kent M. Amo, P.A., to handle general civil litigation and family law mat-

ters, including divorce, child support, and paternity issues throughout Southwest Florida. Kent M. Amo, P.A. is co-located with M. Jean Rawson, P.A. at 2375 Tamiami Trl. N., Ste. 208, Naples, FL 34103. Tel: 239-263-8206; E-mail: [email protected].

Stewart Law Firm, P.L.C. has opened a new office at 780 Fifth Avenue South, Suite 200, Naples, FL 34102. The firm originally only handled real estate transactions and land use cases but has shifted focus to mortgage foreclosure defense with loan modifications and short sale negotiations as well as real estate closings.

Kenneth D. Krier, Principal at Cummings & Lockwood LLC (www.cl-law.com), has been appointed to the Boards of The Conser-vancy of Southwest Florida, and The Na-ples Players. Attorney Krier was previously appointed to the Boards of The Culinary and Hospitality Education Foundation, The Forum Club, and Admiralty Point Condo-mium.

FOR RENT: Attorneys (4) and other profes-sionals (1) with two executive offices to rent. Attractive offices in great location at Pine Ridge and Airport Road, Naples, FL. Space for an assistant, shared conference room with a law library and shared kitchen is in-cluded in rent of $700 per executive office. Call Rob or Kathy at 239-593-1444.

ATTORNEY WANTED to join expanding mid-sized Naples commercial law firm (website:swflalaw.com) in one of the following practice areas: estate planning, probate and elder law; or condo and homeowners association law; or labor and employment law. Excellent incentive-based compensation package. Experience; client base; strong technology skills and solid professional reputation required. Apply to: [email protected] and [email protected].


By Travis Hayes, Esq.

DISCLAIMER: [Having seen an advance copy of my dad’s article for this month’s Adverse Witness, I can guarantee you that this article will not be as eloquently written as the Judge’s Corner, and I will probably not quote Shakespeare. However, I may quote the Internal Revenue Code, which is much more interesting in my opinion.]

Many practitioners counsel their clients to speak with an advisor regarding year-end estate and tax planning opportunities. However, just because the calendar year has ended, it does not mean that now is not a good time to discuss estate planning issues and opportunities for your clients. In fact, for many of the reasons listed below, the beginning of 2011 may be an opportune time for clients to revisit their estate plans and determine whether additional estate planning is needed or would be beneficial to the clients. This article is meant to give you a brief overview of a few issues which you may want to discuss with your clients (or for the litigators who make the big bucks, issues that you may want to address in your own es-tate planning). The issues and techniques discussed below pertain to estate planning under current and proposed federal laws. Next month’s Adverse Witness will contain a follow-up article regarding estate planning issues and opportunities which have arisen due to changes in Florida law during the past year.

1. Federal Transfer Taxes. What is Congress Doing? As you may be aware, both the federal estate tax and generation-skipping transfer (“GST”) tax did not apply for the 2010 tax year under the Bush tax cuts. (The federal gift tax remained with a top marginal tax rate of 35% and a $1,000,000 lifetime exemption.) Near the end of 2010, Congress proposed tax legisla-tion (the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010) which would retroactively reinstate both the federal estate tax and GST tax. Much to the dismay of Lisa Mead, I delayed submitting this article for as long as possible in the fleeting hope that the tax legislation would be passed by Congress prior to my deadline. However, as of the date of this writing, the tax legislation bill had only been approved by the Senate and was in the first stages of being debated in the House of Representatives. If the Senate bill in its current state is passed by Congress and signed into law by President Obama, the following is a (very) brief overview of the changes that will be made to the federal estate, gift and GST taxes:

• The estate tax and GST tax exemption amounts increase to $5,000,000 per person and will be indexed for inflation. The maximum rate of tax is fixed at 35%.

• The estate tax and gift tax will be “re-unified” with respect to gifts made after December 31, 2010. Thus, starting January 1, 2011, the lifetime gift tax exemption will be $5,000,000 and the maximum rate of tax will be 35%.

• The bill creates portability of the decedent’s remaining estate tax exclusion amount, if the decedent is survived by a spouse. The Personal Representative of a decedent’s estate will have the ability to make an irrevocable election on an estate tax return to permit the decedent’s surviving spouse (but no other beneficiary) to use the deceased spouse’s un-used estate tax exemption. A surviving spouse would not be able to accumulate unused exclusion amounts from multiple deceased spouses, only the last deceased spouse of the surviving spouse. I guess Congress decided that it would not be a good idea to create a market for the shopping of unused estate tax exemptions (of course it may also cause widows to not remarry, for fear of losing the benefit of the unused estate tax exemption). While a decedent’s unused estate tax exemption may now pass to the surviving spouse, there is no provision creating portability for unused GST exemption.

• The repeal of the estate tax and GST tax and the enactment of carry over basis are re-pealed as of January 1, 2010. (Under the Bush tax cuts, while there would be no estate tax in 2010, a modified “carry over” basis would apply. Prior to 2010, the beneficiaries received a “stepped up” basis in the decedent’s value, meaning that the assets were revalued as of

Is it time for an estate planning check-up?

GUEST EDITORIAL

continued page 13


Abused and neglected children need your help!

GUARDIANS AD LITEM

We have been telling you in the last few additions of the Newsletter about Voices for Kids of Southwest Florida (VFK). VFK’s core mission is to provide a Guardian ad Litem (GAL) for every abused and neglected child under court supervision and to help the children with important physical and emotional needs not otherwise provided for by other agencies. The GAL is the heart and soul of the child dependency system, and is the only advocate for the children whose only interest is the children. GALs are all volunteers, although the state does provide a small staff to supervise them. In the 20th Circuit, there are close to 1500 children under court supervision and close to 500 GALs.

VFK is a community funded organization that provides paid people to the GAL spectrum. VFK currently funds six positions as follows: one Executive Director, who in addition to the duties one would normally expect, spends much of her time applying for grants from various community groups and local governments; two GAL recruiters; two GAL trainers; and one GAL part-time ad-ministrator. It costs about $8,000 a month to provide for these positions and support their func-tions. VFK spends another approximately $2,000 per month in supplying items to the children, while being unable to provide for many other needs.

Until the recession, VFK was able to fund these core tasks primarily through local grants and did not need to ask the community at large for support. As a result of that, and as a result of its close affiliation and identity with the state funded GAL supervisory office, most in our community, including the GALS themselves, do not even know about VFK’s existence.

But, with the recession and the reduction of available community grants, VFK’s shoe-string budget is facing severe funding strains, and now VFK finds itself in the position of either raising funds from the community at large or reducing its GAL recruiting and training efforts at a time when the needs of children are most critical. Over the past 12 months, VFK’s grants have brought in around $6000 a month instead of the needed $10,000 a month, and excess funds in the coffers to make up the difference are running out. VFK’s situation is so drastic that it recently sent a letter to all of the nearly 500 GALs asking them to contribute to VFK so as to allow it to continue it’s core, and I might add completely fundamental, mission of providing GALs to the child dependency system.

The lawyers on the VFK board recently contributed $2,500 to VFK on behalf of the 20th Circuit legal community. Lee County attorney and mediator James Nulman was recently kind enough to make a generous donation to add to the legal community’s gifts to VFK. Providing a GAL to pro-tect abused and neglected children is an essential part of our justice system and, well, the least we can do for these already burdened children. Please consider supporting VFK and its mission by sending your tax deductible gift to VFK. Even a small gift of $50 or $100 by each member of the 20th Circuit bar would allow VFK to continue its mission! I will be happy to accept your gift if you choose to do so, or you may send it to Monica Monahan, Executive Director at VFK, 2075 West First Street, Suite 300, Fort Myers, Florida, 33901.

THE COLLIER COUNTY BAR FOUNDATION BARBEQUE IS JANUARY 29!!Thanks to the incredible generosity of Joe and Lou Stewart, the Foundation will host its annual Barbeque on January 29, 2011. Please come enjoy a relaxed evening with food from Fernandez de Bull and other barbeque specialties from Joe’s barbeque pit! Sit by the open camp fire and roast marshmallows for s’mores! Enjoy an open bar with beer, wine and soft drinks! Listen to great music by The Dazzling Delrays, fronted by our very own Larry Farese! Each year, the Foundation names a recipient of the proceeds of the Barbeque, and this year, the recipient is Voices for Kids. Voices for Kids is an organization that works in partnership with the Guardian Ad Litem Program. The mission of Voices for Kids is to raise funds to ensure that every abused and neglected child has a court-appointed Guardian Ad Litem volunteer and financial assistance and other resources available for their accompanying health, educational and social needs. To learn more about Voices for Kids, please see the article by Denise Wheeler in this month’s edition of the Adverse Witness.Great food, fellowship and entertainment for a great cause! Please see the flyer in this month’s Adverse Witness or log on to the CCBA website at www.colliercountybar.org to buy tickets. This event is not just for attorneys – please take this opportunity to invite clients, neighbors, family and friends to enjoy the evening and help support Voices for Kids!

By Denise Wheeler


Legal Aid Notes continued from page 5

START TALKING BEFORE THEY START DRINKING

Kids who drink before age15 are 5 times more likely to have alcohol problems when they’re adults.

To learn more, go to www.stopalcoholabuse.gov or call 1.800.729.6686

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throughout the year by Legal Aid Staff, and comprise those who are facing an economic crisis. The vast majority of these families would be unable to furnish any gifts to their children without the generosity of the donors.The children and families received their gifts and had a chance to meet with many of their ‘adopter’ donors at the gift exchange party held on Friday, December 10, 2010 from 5:00 p.m. to 6:30 p.m. at the Legal Aid offices in East Naples. The of-fice was festively decorated for the occasion, and refreshments were served to more than 100 guests while holiday music filled the air. Santa Claus made a grand entrance – thanks to a little Christmas magic and the efforts of Magistrate James M. McGarity. The offices and hall-ways of Legal Aid were brimming with toys of all kinds, including bikes, electronic games, dolls, sport-ing equipment and other items pur-chased from the personalized ‘wish lists’ of the children.The gift exchange party is a heart-warming and inspirational event each year. Many parents are over-come with emotion, such as the mother of Jazmin, who watched as a group of young Girl Scout Daisies (kindergartners and first graders) each presented her daughter of the same age with gifts. Jazmin in-stantly gave each of the ‘Daisies’ a big hug, symbolizing the spirit of giv-ing that makes the Adopt A Family Program so special each year for all who participate.We are always amazed here at Legal Aid by the gener-osity of the do-nors to ‘AAF!’ The Collier County Bar Foundation – an annual major donor - graciously donated $2,500 to the Holiday Gift Program this year. Lisa Mead, Execu-tive Director of the Collier County Bar Association, and CCBA President-Elect Maggie McMorrow also donated a substantial amount of time shopping and wrapping presents to make the dreams of the children come true this year. Special thanks to Magistrate McGarity, a/k/a St. Nicholas – who brought joy and smiles to all the kids. I would be remiss if I did not also heartily

thank Ana De La Cruz, LASCC’s Assistant Pro Bono Coordina-tor, who once again did a great job in working with our families and donors to pull off this special event.Legal Aid would like to thank the following donors to the 2010 Adopt A Family Holiday Program for their generosity and sup-port: Stephen Kotler, Esq., Andrew & Sue Krause, Brandy Woodson, Collier County Bar Foundation, Collier County Women’s Bar Association, Daniel K. Capes, Esq., Francesca Passeri, Esq., Girl Scouts (Daisies – Naples Troop), Gray Robinson, P.A., Gulf Coast Paralegal Association, Hon. Robert L. Crown, Jane Yea-ger Cheffy, Esq., Jeanette M. Lombardi, Esq., John Holloway, Esq., Law Offices of Eric J. Vasquez, Margaret O’Callaghan, Michael L. Kraus, Esq., and family, Mid-Day Optimist Club of Naples, Paralegal Now, LLC, Pieter & Lisa Van Dien, Robert E. Davy, Jr., Esq., Roger & Margaret McMorrow, Stephanie & Stephen Grogoza, Tamara Nicola, Esq., Tara Miller Dane, Esq., Tara A. Mucha, Esq., and Zelman & Hanlon, P.A.Thanks again to all our donors – you were magnificent this year!


THE TRAVELING FORK® By John P. Cardillo, Esq.

Did you ever wonder what kind of an environment develops a star, a budding wunderkind? You all recently read in this col-umn the restaurant reviews of Savannah and Charleston by the Forkette, an 11-year-old young lady who has developed a keen interest in restaurants and travel and can review them with a critical eye, discerning taste and verbal wit as good as a New York Times food critic.

The environment for that child is unique. Her parents are extraordinary. Both are ap-pellate judges, civilized, cultured, and hospitable. They have a cultured home life, which serves as a platform for the Forkette to blossom.

So on a recent evening at the annual dinner of the panels of the Judicial Qualifications Commission, a meal of international dimensions was offered and directed by the For-kette.

The ebullient Nelly Khouzam is of Egyptian descent. Her husband, Morris Silberman, a reflective and professorial sort, was raised in Philadelphia, educated in New Orleans and does not reflect a background in cheese steaks and étouffe. Their daughter is an ex-traordinarily inquisitive, talented and charming result, whom I have known since birth and combines the qualities of both of her parents.

So on this marvelous evening our hostess was the young Miss Gabrielle who literally directed with aplomb her aproned father and mother in the service of their culinary creations. Among the homemade items reflective of their ancestry were: Cheese and Spinach Mille Feuille (French/Egyptian); Olive Oil and Lemon Potatoes; Stuffed Herb Bread; Salad with Feta and Homemade Balsamic Vinaigrette; Basterma (cured Egyptian meat); Thai Chili Cashews and Honey-Roasted Almonds; Olives; Konefa; Pastries; Rasp-berry Chocolate Cake [from Kathy (Mrs. Tom) Freeman]; and Baklava.

Other more common items were Baked Salmon, Roasted Chicken, Hot Sausage, Cold Shrimp Platter and Beef Tenderloin.

With the continuous service and a member of the host family just rotating to each table, it was one of those magical evenings of marvelous food, conversation and hospitality. With my attention directed to the compelling Forkette, we swapped restaurant notes unlike with any other person. It was not a case of one-ups-manship but of inquiry, note taking and comparison - a session of learning from each other.

A flag waving, piano playing, hip hopping, kilt wearing, Scottish dancing. bagpiping, and altar serving gal; Gabrielle’s activities and accomplishments are a joy to behold, as well as a parental challenge for her precociousness as well as all of these activities. This bright, extraordinary, inquisitive young lady is the product of a remarkable family. This was a night of witnessing and delving into the environs that create a rising star.

Your comments or contributions to this column are welcome; you can email [email protected], write to Cardillo, Keith & Bonaquist, P.A., 3550 Tamiami Trail East, Naples, Florida 34112, or fax to (239) 774-2494.

Rising Star


Section and the Business Law Section on potential legislation addressing the Florida Supreme Court’s recent Olmstead deci-sion affecting multi-member limited liability corporations. The delay was because the Trial Lawyers Section asserted it had not had an opportunity to review the issue. The matter was referred to the Executive Committee.

• Heard Steve Metz, the Bar’s chief legislative counsel, discuss the upcoming session. Metz warned there are many uncer-tainties, including a larger than expected budget deficit, a new governor, and criticisms by some legislative leaders of recent Supreme Court rulings. He also warned of a trend by business and other outside interests mounting expensive and last minute campaigns against appellate judges up for merit retention and said that could happen in Florida in 2012.

• Heard a report on the updating of the Bar’s strategic plan from President-elect Scott Hawkins. Bar goals remain protecting the judicial branch and its funding, building public confidence in the profession and the legal system, ensuring access to the courts and legal services, and enhancing the value of a Bar membership for lawyers.

Respectfully submitted,Laird A. LileScott Wm. Weinstein20th Circuit BOG Representatives

Board of Governors Reportcontinued from page 7

the date of the decedent’s death for income tax purposes). • For decedents dying in 2010, the Personal Representative

of the estate may elect out of the estate tax and into the modified carry over basis regime as under the Bush tax cuts.

• While the GST tax is retroactively reinstated for 2010, the tax rate for any generation-skipping transfer made during the year will be zero (therefore, no tax will be due).

• The bill extends the time for filing an estate tax return, paying any estate tax due, and making any disclaimer of an interest in property passing by reason of the death of the decedent until the date which is nine months after the enactment of the bill.

Even if the legislation described above is passed, the bill will only apply until December 31, 2012. Clients should have their Revo-cable Trusts reviewed to ensure that such documents provide the flexibility to account for ever-changing tax laws. Also, if the gift tax exemption is increased to $5,000,000, clients who had previously fully used their $1,000,000 exemption will now have additional capability to make tax-free gifts. Practitioners should take this opportunity to discuss gift tax planning opportunities with clients due to the potential increase in the gift tax exemp-tion amount. Under prior estate tax laws, a standard estate plan for a married couple would divide a deceased client’s assets into two shares, the estate-tax exempt amount and the balance of the assets (which would qualify for the federal estate tax marital deduction, thus postponing taxes on those assets until the surviving spouse’s death), and these shares would be held in separate trusts for the surviving spouse’s benefit. The estate tax exempt amount was held in trust in order to ensure that the deceased spouse’s federal estate tax exemption was not wasted. With respect to the proposed portability of unused estate tax exemptions, many clients will mistakenly believe that they no longer need to set up and fund Revocable Trusts until the death of the first spouse to die since the unused exemption may pass to a surviving spouse without being held in trust. However, there are many additional reasons that clients should still hold assets in trust for the surviv-ing spouse, as opposed to having the assets pass outright to the surviving spouse (e.g., protection from creditors and avoidance of probate). Holding the assets in trust also allows the deceased spouse to control the disposition of the assets after the surviv-ing spouse’s later death (this may be of particular importance in second marriage situations where there are children from a prior marriage). It should also be brought to a client’s attention that unused GST exemption will not pass to a surviving spouse, so if that exemption is not applied to a trust, it will be wasted. In addition to the federal estate tax, applicable state death taxes may also be affected by the reinstatement of the federal estate tax. In response to the Bush tax cuts, many states enacted separate death taxes for budgetary reasons (often referred to as a “decoupling” from the federal estate tax). Although Florida does not have a separate state death tax, a client may be subject to a separate tax if he or she owns property in a state that has enacted such a law. For example, Massachusetts and New York currently have state death tax exemptions of only $1,000,000. If an estate plan does not provide the flexibility to account for separate state death taxes, a client who has property in one of the decoupled states may owe state death taxes even if his or her

estate is exempt from federal tax. Many up-to-date estate plans treat state death tax as a separate factor when determining the funding amount of any trusts established at a decedent’s death, while ensuring that the client’s federal estate tax exemption is still utilized to the fullest extent possible. An updated estate plan will afford a client’s Trustees greater flexibility to adapt the cli-ent’s plan to account for any state death taxes that may be owed.2. Low Interest Rates + Low Asset Values = Estate Planning Opportunities. Because of historically low interest rates and depressed asset values, the use of Grantor Retained Annuity Trusts (“GRATs”) has become very popular. GRATs allow a client to transfer certain assets to beneficiaries at a discounted gift tax value. This is because the client retains the right to receive payments from the GRAT for a limited number of years before the GRAT terminates in favor of the beneficiaries. To the extent the appreciation of the assets transferred to the trust exceed the IRS assumed rate of return (which was 1.8% in December), this appreciation will pass tax-free to the designated beneficiaries. The amount of the payments that a client can receive can be calculated so that the client will be deemed to have made a “zero gift” upon funding of the GRAT. In 2010, proposed legislation nearly curtailed the use of GRATs, particularly the “zeroed-out” GRAT. Although that legislation did not come to pass, legislation to end this estate planning technique may be proposed in the coming year. Now would be the best time to discuss implement-ing a GRAT plan with a client, before adverse legislation is passed.

As indicated above, IRS interest rates for certain estate plan-ning transfers are at their all-time low. If a client sells assets

Estate planning check-up continued from page 9

continued on page 14


ANNOUNCEMENTScontinued from page 8

to beneficiaries or to a trust for their benefit in exchange for a promissory note these low rates will apply. If a client anticipates that an asset will grow in value, selling that asset is a technique that can be used to remove the future growth from the client’s taxable estate, particularly if the client is uncomfortable with paying gift tax. While on the topic of low interest rates, if a cli-ent has made a loan to a child or other family member in prior years, now might be the time to advise the client to “refinance” the loan to take advantage of the current rates (as low as 0.32% for short-term loans).If a client is charitably inclined, there are similar techniques to those described above which take advantage of the historically low interest rates imposed by the IRS. A Charitable Lead Annu-ity Trust (“CLAT”) is similar to a GRAT, except that a charitable beneficiary receives the annuity payment during the trust term, with the assets remaining in the trust upon the expiration of the trust term passing tax-free to the selected familial beneficiaries. Also, gifts of remainder interests in property are now becoming more popular. Low interest rates imputed by the IRS result in an increase in the value of the remainder interest which increases the amount of the client’s current income tax deduction. 3. Update Beneficiary Designations. Some assets such as life insurance, pension and other employee benefits pass at death according to beneficiary designation rather than by a Will or Revocable Trust. It is important to coordinate the beneficiary designations with the rest of a client’s estate plan since these assets may be a major part of the estate. Every practitioner should ensure that a client has beneficiary designations in place for these types of assets and that they are reviewed periodically to ensure that they adhere to a client’s dispositive intentions and comply with current law.The two most common beneficiary-designated assets which cli-ents own are insurance policies and retirement accounts. With respect to insurance policies, you need to ensure that a client has a beneficiary designation in place for each policy. If not, the proceeds will be paid to the client’s estate at death, which results in estate tax inclusion issues and defeats some of the benefits of owning the life insurance. The client, or, if the insurance is owned by a trust, the Trustee of such trust, should designate specific persons (such as a surviving spouse) or trusts as the beneficiaries of the policies.Many practitioners will prepare beneficiary designation “riders” for retirement accounts. These documents coordinate the dis-position of the retirement proceeds with the client’s estate plan. Most retirement plan custodians will find it acceptable for the cli-ent to attach a signed rider to their beneficiary designation forms rather than copying all of this information onto the actual forms themselves. A client should be advised to request a beneficiary designation change form from the retirement account custodian and, with an estate planning attorney’s assistance, complete, sign and return those forms to the custodian with the beneficiary des-ignation rider as an attachment thereto. The client or attorney should request that the retirement account custodian confirm ac-ceptance of the form. Future changes in a client’s estate planning documents may necessitate changes in the retirement account beneficiary designation. In addition, there are important income tax considerations associated with beneficiary designations for retirement accounts. You should urge your clients to consult with an estate planning attorney in completing any such designations.

4. To Convert on Not to Convert - That is the Question. In 2009, modified gross income limitations applicable to Roth IRA conver-sions were repealed. 2010 was the first year in which a client could convert all or any part of his or her IRA to a Roth IRA, regardless of income or age. If a conversion is being contemplated, a cli-ent should consult with his or her financial advisors and estate planning attorney before making the election. In general, a Roth IRA conversion will be most beneficial if the client will not need the retirement proceeds during his or her lifetime. If the Roth IRA passes to descendants after the client’s death, the payments from the retirement account may be “stretched-out” for a longer period, thus allowing for more tax-free growth within the account. If a client will need the retirement proceeds during his or her lifetime or wishes to designate a charity as the beneficiary, then it is generally not advisable to make the conversion. If a client converted to a Roth IRA in 2010, he or she has until October 15, 2011 to recharacterize all or any converted amounts as traditional IRA funds. If the converted assets decrease substan-tially in value after the conversion, you may want to advise your client to take advantage of this recharacterization option. Keep in mind, however, that to do so, the client must transfer the funds subject to the recharacterization out of the Roth IRA and into a traditional IRA account. These same rules and considerations apply to the conversion of 401(k)s to Roth 401(k)s. As indicated above, assessing the benefits of a Roth conversion requires careful analysis of a client’s particular situation.In conclusion, there have been many changes in federal tax laws during the past year that may necessitate a review of clients’ estate plans, as well as presenting clients with current planning opportunities. I think Shakespeare summed up the field of estate and tax planning law in a nutshell when he said, “Better three hours too soon than a minute too late.” If only we could convince our clients to think like Shakespeare…..I hope that the issues discussed in this article help you in advising your clients with respect to their estate planning needs in 2011.

Estate planning check-up continued from page 13

Laird A. Lile, a wills, trusts and estates attorney in Naples, presented at the Probate Team conference in Orlando in late October. Lile’s presentation, “Elective Share: Eleven Years After,” included a look at the evolution of Florida’s elective share law since its overhaul in 1999. “The protections afforded surviving spouses are important threads of Florida’s probate laws,” said Lile. “The legislative enhancements and procedural clarifications provided during the past 11 years are noteworthy.” Lile also participated in a presentation on the electronic filing initiative mandated by the Legislature and being implemented by the courts and clerks. FLSSI is a nonprofit corporation established in 1981 to assist lawyers practicing in real property, probate and trust law. Practicing attorneys and legal assistants from around the state attended the conference to learn the latest information about legal decisions and legislative changes that impact probate law in Florida.


By Mark Alderuccio, Esq.

ONE FOR OPTIMISM DURING THE STORM AND THE CIRCLE OF LIFE: I couldn’t help but react in some way after reading last issue’s column by my esteemed colleague, JOSH FAETT. I too have witnessed on almost a daily basis this growing sense of impending doom and what can only be described as fear in the faces of many of my clients, friends and co-workers. This malady undoubtedly is the product of the downturn in the economy but what I have found most striking about this economic “Nor’easter” is its ability to cross over all the normal boundaries of the economic landscape. I have witnessed bright young families, retirees, working men and woman and young men and woman in their 40s and 50s who have worked all their lives to have a professional career only to see the whole plan fall away over a few errors in judgment, errors which in a better market environment would have been more readily absorbed, and wouldn’t be having the same devastating impact its having on their families and the ones they love at the moment.

The real estate and employment downturn that is devastating our middle and working class families is breeding fear and worry which in turn is producing frustration, desperation and intolerance. However, while storms like this whirl around us, history teaches that with perseverance, determination, patience, tolerance, humility and compassion, the harshness of the storm can often be weathered and any storm will eventually run its course and blow itself out.

I have spent the last two years of this storm meeting with those in our community, new and old, poor, not so poor, well to do and well off and they all come to the table with the same questions: How long is it going to last? How will we get to work if we lose our cars? Where will we go when the court issues a writ directing us to leave our home after foreclosure? Will we be able to find a place where our kids can stay in the same school district? Why don’t the mortgage companies not want to communicate with us? How can we protect our assets from creditor onslaught by the use of prudent exempt asset planning? All through this storm of desperation and frustration I do see the storm starting to slow. My fellow Ameri-cans we may have gotten a bit soft, overextended and comfortable but we can persevere.

These very same citizens have changed before my eyes these last few years, they are weathering this storm. The initial despair in their eyes calms with information. This is the rewarding part for me. It takes time and a lot of patience. Then they go to work every day and try to do their jobs as best they can. Some have short saled or walked away from their foreclosure, a few have gotten modifications, many are working within the Court’s new mediation program, some have filed for bankruptcy and others are still riding it out in their homes because of their emotional attachment or they feel they can’t afford to go elsewhere. These are tough decisions for this optimistic group. They are pioneers in a way, pining away at an economic crisis this country has not seen in 80 years and surviving. Unless you’re going through it, I don’t think most people realize the strength of character you can see being exhibited by many people faced with economic devastation. When the sky breaks and the sun comes out, which it will undoubtedly do again in robust enthusiasm, these Americans who weathered the storm will be stronger still to handle the new good times having learned perhaps the hard way from the bad times. The circle of life my friends, live well with your heads held high.

The circle of life

GUEST EDITORIAL


Immigration, Naturalization and Deportation Defense .................Page 17Legal Research ........................................................................................Page 17Patent & Trademark Law ......................................................................Page 18Paralegal Services ..................................................................................Page 19Counsel Services ....................................................................................Page 19Office Space ...........................................................................................Page 20Long Term Care Insurance ...................................................................Page 21Education ................................................................................................. Page 22Mediation/Arbitration ....................................................................Page 22, 26Employment Law ................................................................................... Page 23Homeowners Representation ............................................................ Page 23Banking .....................................................................................................Page 24Mental Health & Substance Abuse Services .................................. Page 25Printing & Copies .................................................................................. Page 26Business Machine/Copier Sales & Service ..................................... Page 27Computer Support ................................................................................Page 28

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“I don’t ask if someone wants to give to charity; I ask how much they want to give.”

Hyman believes in giving to the American Cancer Society

because we fight for every birthday threatened by every

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through free, valuable gift planning tools and resources and

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finance news.

To register or receive a free NPAN brochure email [email protected] or call 1-800-444-1410 ext. 3856.

©2010, A

merican Cancer Society, Inc.

Lives changed, lives saved.

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Tarnow Law Firm1415 Panther Lane, Naples, FL | www.tarnowlawlawfirm.com | 239.593.6100

A graduate of the Syracuse University College of Law, with more than 40 years of experience, Herman Tarnow limits his practice to family and matrimonial law matters. In the Naples, Florida office, he represents parties from the Collier and Lee County communities.

A Fellow of both the American Academy of Matrimonial Lawyers and the International Academy of Matrimonial Lawyers, Mr. Tarnow has delivered lectures to and participated in programs on matrimonial law with several Bar Associations including the American Bar Association, the Collier County Bar Association and the Association of the Bar of the City of New York.

The author of legal articles including a discussion on matrimonial law entitled "Distribution of Collectibles in Divorce Proceedings," and the "Tax Reform Act—a Matrimonial Lawyer's Guide" both of which were published in the National Law Journal, Mr. Tarnow’s opinions have been quoted in numerous magazines and newspapers including Forbes Magazine and The New York Times.

Tarnow Law Firm FamiLy Law, Divorce, cusToDy

Herman H. [email protected]

Tired of waiting for clients to find you?Join the Lawyer Referral Service of Collier County –

and your phone will start ringing!www.colliercountybar.org

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Volume 96 • January 2011 · Legal Aid announces major award winners By Jeffrey A. Ahren, Esq....

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