FLORIDA BAR PRESIDENT-ELECT CANDIDATES FORUM

The Florida Bar will present a live president-elect candidates’ forum on February 22, from 12-12:30 p.m., via Zoom, to provide Florida lawyers an opportunity to virtually meet the candidates: Steve Davis of Miami and Gary Lesser of West Palm Beach. Davis and Lesser, both current members of the Board of Governors, will present opening and closing statements about their qualifications and visions for the Bar. They will also answer questions submitted in advance by Bar members. The forum will be moderated by former Justice Peggy Quince who served on the Florida Supreme Court from 1999-2019.

Visit the forum webpage for additional information.

See the Bar News story here.

9TH CIRCUIT JNC NOTICE OF COURT VACANCY

Gov. Ron DeSantis asked the Ninth Circuit Judicial Nominating Commission to provide him with names of highly qualified nominees for one county judge vacancy on the Orange County Court bench created by the elevation of Judge Gisela Laurent.

The Commission requires interested candidates to submit a complete application for consideration. Applicants must have been a member of the Florida Bar for the preceding five years and must be a registered voter. The individual appointed must reside in Orange County at the time that he or she is appointed.

Applications may be downloaded from the Office of the Governor at www.flgov.com. Applicants must include a recent photograph, preferably as a cover page. PLEASE NOTE: Effective July 1, 2020, the application has been substantially revised. Please be sure to download and use the current application. Any other version is obsolete and will not be accepted.

Applicants must submit a complete application to Jeff Aaron, at jeff.aaron@gary-robinson.com by Friday, Feb. 19, 2021, at Noon (12 p.m.). The Commission will be holding interviews on Friday, Mar. 5, 2021. The Commission encourages applicants to submit their applications as soon as possible. Any application received after the noon deadline will not be considered. Applicants who are in need of guidance may contact the Chair. Applications must be in .pdf form with a second .pdf version of the application with personal information not subject to public disclosure – such as the social security number – redacted as permitted by Section 119.071 of the Florida Statutes. The two .pdf files should be named in a “last name.first name” format. For example: Bob Smith should submit two file names: (1) Smith.Bob.pdf and (2) Smith.Bob-REDACTED.pdf. No paper applications will be accepted.

To assist the Commission in its review of applications, all questions on the application must be fully and completely answered. The submitted application must include the financial disclosures, a writing sample, and a recent photograph. Applicants must also include current contact information, including e-mail addresses, for all judges, co-counsel, opposing counsel, and references to facilitate the background investigation that members of the Commission will conduct.

Members of the bench, the Bar, and the public are encouraged to contact the members of the Commission concerning applicants for judicial positions. Letters of recommendation should be e-mailed or mailed to all Commissioners at any time before the interviews begin:

9th Circuit JNC Commissioners

Jeff Aaron, Chair
Gray Robinson, P.A.
301 E. Pine St., Ste. 1400
Orlando, FL 32801
jeff.aaron@gray-robinson.com
Office: 407-244-5644

Josh Grosshans
The Grosshans Group, PLLC
884 S Dillard Street
Winter Garden, FL 34787
josh@ggrouplaw.com
Office: 407-900-3261

Robert Holborn
Debevoise & Poulton, P.A.
1035 S. Semoran Blvd., Ste. 1010
Winter Park, FL 32792-5512
holborn@debevoisepoulton.com
Office: 407-673-5000

Matthew A. Klein
Signature Aviation
13485 Veterans Way, Ste. 600
Orlando, FL 32827
matthew.klein@signatureaviation.com
Office: 407-206-5291

Chris Posteraro
Walt Disney World Legal Dept.
PO Box 10000
Lake Buena Vista, FL 32830-1000
cposteraro@hotmail.com
Office: 407-828-1130

Michael A. Sasso, Vice-Chair
Sasso & Sasso, P.A.
1031 W. Morse Blvd., Ste. 120
Winter Park, FL 32789-3774
masasso@sasso-law.com
Office: 407-644-7161

Tim Schulte
Zimmerman Kiser Sutcliffe, P.A.
315 East Robinson Street, Suite 600
Orlando, FL 32801
tschulte@zkslawfirm.com
Office: 407-425-7010

Tara Tedrow
Lowndes, Drosdick, Doster, Kantor & Reed, P.A.
215 North Eola Drive
Orlando, FL 32801
Tara.Tedrow@lowndes-law.com
Office: 407-418-6361

Interviews will be held on Mar. 5, 2021, at the law offices of GrayRobinson, P.A. in Orlando. Applicants will be notified by email as to their interview time and the address once the schedule is made after the application deadline. A complete interview schedule will be available on the Governor’s website at a later time. If there are any questions about the application process, please contact the Chair of the JNC, Jeff Aaron, at 407-244-5644.

Arbitration Case Law Update

February 2021
By: Donna Greenspan Solomon, Esq.

 

GE Energy Power Conversion Fr. SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 1642 (2020).  The United Nations Convention on the Recognition and Enforcement of Foreign Arbitral Awards does not conflict with domestic equitable estoppel doctrines that permit the enforcement of arbitration agreements by nonsignatories.

Lavigne v. Herbalife, Ltd., 967 F.3d 1110, 1113 (11th Cir. 2020).  In deciding whether equitable estoppel is appropriate, courts must remember the purpose of the doctrine, which is to prevent the plaintiff from having it both ways. The signatory cannot, on the one hand, seek to hold the non-signatory liable pursuant to duties imposed by the agreement, which contains an arbitration provision, but, on the other hand, deny arbitration’s applicability because the defendant is a non-signatory.

Gherardi v. Citigroup Glob. Mkts., Inc., 975 F.3d 1232 (11th Cir. 2020).  Because arbitrators’ decision was an interpretation of the parties’ contract, in accordance with 9 U.S.C.S. § 10(a)(4), rather than an expansion of the arbitrable issues, the district court erred in substituting its own legal judgment).

EGI-VSR, LLC v. Coderch, 963 F.3d 1112, 1115 (11th Cir. 2020).  The Federal Arbitration Act implements the Inter-American Convention on International Commercial Arbitration (Panama Convention), which provides that a federal court must confirm an arbitration award unless it finds one of the following grounds for refusal or deferral of recognition or enforcement of the award: (1) incapacity or invalidity of the agreement, (2) lack of notice, (3) that the decision concerns a non-arbitrable dispute, (4) violation of the arbitration agreement or relevant law in carrying out the arbitration, (5) that the decision is not yet binding on the parties or has been annulled or suspended, (6) that the subject of the dispute cannot be settled by arbitration under the law of the State of recognition, or (7) that the recognition or execution of the decision would be contrary to the public policy (ordre public) of the State of recognition.

Ga.-Pacific Consumer Ops., LLC v. United Steel, Paper & Forestry, Rubber, Mfg., Energy, Allied Indus. & Serv. Workers Union, Loc. 9-0952, No. 20-10646 (11th Cir. Nov. 20, 2020)A federal court’s review of an arbitration award is extremely narrow.  Because the parties have contracted to have disputes settled by an arbitrator rather than a judge, they have agreed to accept the arbitrator’s view of the facts and the meaning of the contract.  The limited review of arbitral decisions “maintains arbitration’s essential virtue of resolving disputes straightaway.”  If the arbitrator arguably constructed the contract at all, the arbitrator’s construction holds, “however good, bad, or ugly.”

Young v. Grand Canyon Univ., Inc., No. 19-13639 (11th Cir. Nov. 16, 2020)University was precluded from enforcing a pre-dispute arbitration agreement with respect to a student’s breach of contract and misrepresentation claims because these claims constituted “borrower defense claims” under 34 C.F.R. § 685.300(i)(1), which, under Obama-era regulations, prohibited schools from entering into or relying on pre-dispute arbitration agreements and class-action waivers with students “with respect to any aspect of a borrower defense claim.”

Massa v. Michael Ridard Hosp’y LLC, 45 Fla. L. Weekly D1979 (Fla. 3d DCA August 19, 2020)Trial court erred by not holding evidentiary hearing prior to entering order compelling nonsignatories to employment agreement to arbitrate because there was no evidence that permitted trial court to compel nonsignatories to arbitrate their disputes, as nonsignatories disputed facts that would have permitted trial court to find otherwise.

Cooper v. Rehab. Ctr. at Hollywood Hills LLC, 45 Fla. L. Weekly D2384 (Fla. 4th DCA October 21, 2020).  An order compelling arbitration of the resident’s claims against the rehabilitation center was proper because the resident’s claims arose out of, or were related to, the contract, and any doubts as to the scope of the arbitration agreement were resolved in favor of arbitration. The center agreed to provide nursing care at the facility in return for payment and the resident’s claims arose out of failure to provide appropriate nursing care and to provide for her well-being after a hurricane; the resident’s entire relationship with the center was based upon their agreement, and her claims involved what she alleged that it failed to do in providing those services and protecting her.

Bailey v. Women’s Pelvic Health, Ltd. Liab. Co., 45 Fla. L. Weekly D2604 (Fla. 1st DCA November 18, 2020).  Trial court correctly limited itself to deciding only whether employer’s claim was subject to arbitration, without deciding merits of employee’s claim, because employee’s view of facts provided no cause for scuttling parties’ agreement to arbitrate any claims “arising out of or related to” their agreements.


Donna Greenspan Solomon was the first attorney certified by The Florida Bar as both Business Litigator and Appellate Specialist.  Donna is a Member of the AAA’s Roster of Arbitrators (Commercial Panel).  She is a FINRA-Approved and Florida Supreme Court Qualified Arbitrator.  She is also a Certified Circuit, Appellate, and Family Mediator.  Donna is a Member of the Florida Supreme Court Committee on Standard Jury Instructions—Contract and Business Cases.  Donna can be reached at (561) 762-9932 or Donna@SolomonAppeals.com or by visiting www.solomonappeals.com.

 

 

FLORIDA SUPREME COURT DISCIPLINES 11 ATTORNEYS

Summaries of orders issued from December 28, 2020, to January 21, 2021

 

The Florida Bar, the state’s guardian for the integrity of the legal profession, announces that the Florida Supreme Court in recent court orders disciplined nine attorneys, disbarring four, suspending six and reprimanding one. One attorney was placed on probation.

As an official arm of the Florida Supreme Court, The Florida Bar and its Department of Lawyer Regulation are charged with administering a statewide disciplinary system to enforce Supreme Court rules of professional conduct for the more than 108,000 members of The Florida Bar. Key discipline case files that are public record are posted to attorneys’ individual online Florida Bar profiles. To view discipline documents, follow these steps. Information on the discipline system and how to file a complaint are available at www.floridabar.org/attorneydiscipline.

 

Court orders are not final until time expires to file a rehearing motion and, if filed, determined. The filing of such a motion does not alter the effective date of the discipline. Disbarred lawyers may not re-apply for admission for five years. They are required to go through an extensive process that includes a rigorous background check and retaking the Bar exam. Attorneys suspended for periods of 91 days and longer must undergo a rigorous process to regain their law licenses including proving rehabilitation. Disciplinary revocation is tantamount to disbarment.

Frank T. Blainey, 455 Alt. 19 S., G107, Palm Harbor, suspended for 91 days and probation for three-years effective 30 days following a Dec. 28, 2020, court order. (Admitted to practice: 2006) In 2016, Blainey was drinking socially with a client, resulting in a physical altercation. On July 20, 2018, Blainey was convicted of misdemeanor battery. In addition to being intoxicated at the time of the incident, Blainey has a history of DUIs and issues with alcohol. After his arrest, Blainey failed to provide The Bar with updates regarding his criminal case. (Case No: SC19-372)

 

Lisbeth A Freeman, P.O. Box 6867, Fort Myers Beachdisbarred, effective immediately because of her current suspension. (Admitted to practice: 2014) Freeman was hired to assist in the probate matter of a client’s deceased wife’s estate. Freeman filed a Petition for Administration along with the death certificate and a will but failed to take any further action on the court file and failed to communicate with the client. Freeman abandoned representing the client and relocated to Pennsylvania without withdrawing from the case or notifying the client. She failed to respond to The Florida Bar and failed to participate in the disciplinary proceeding. (Case No: SC20-892)

 

George Crosby Gaskell, III, P.O. Box 1111, Stuart, public reprimand and required to complete Ethics School effective Jan. 25 following a Jan. 7 court order. (Admitted to practice: 2007) Gaskell filed or attempted to file a series of unsuccessful or insufficient bankruptcy petitions in an attempt to save his home from foreclosure. Four were dismissed because of technical errors or Gaskell’s failure to properly prosecute the proceeding. Three were not accepted by the clerk of court because of technical deficiencies. Gaskell’s unsuccessful efforts to pursue a bankruptcy or negotiate a loan modification caused repeated delays in finalizing the foreclosure case. (Case No: SC20-1005)

 

Joseph Wimbert Gibson Jr., 19 W. Flagler St., Suite 417, Miami, suspended for six months, effective 30 days following a Jan. 21 court order. (Admitted to practice: 1982) Gibson was retained to appeal a conviction but instead filed an insufficient Anders brief to withdraw from the criminal case. He was sanctioned for failing to assist the client in obtaining a substitute counsel as the court-ordered three times. Gibson failed to communicate with his client that there was no arguable merit to his case before the brief was filed, and delayed providing a copy of the appeal record to him despite being ordered to do so five times.  (Case No: SC19-792)

 

Stephen Michael Jones, 390 N. Orange Avenue, Suite 2300, Orlando, suspended effective immediately following a Jan. 8 court order. (Admitted to practice: 2015) Jones was found in contempt for failing to respond to an official Bar inquiry. He also failed to respond to the Court’s Order to Show Cause in this matter. Jones is currently on emergency suspension, effective Dec. 9, 2020in Case No. SC20-1593. A petition for emergency suspension is granted by the Florida Supreme Court when The Florida Bar presents clear and convincing evidence that a lawyer appears to be causing great public harm (see Rule 3-5.2(a)) and also constitutes a formal complaint so that the matter is fully investigated and a final disciplinary action is ordered. (Case No: SC20-1406)

 

Allison Kelliher, 293 Knotty Wood Lane, Wellington, suspended, effective 30 days following a Jan. 6 court order. (Admitted to practice: 2008) Kelliher failed to respond to Bar inquiries and the Florida Supreme Court’s order to show cause. She is suspended until she fully responds in writing to the Bar inquiry, and until further order of the Court. (Case No:  SC20-1622)

 

Edward Juan Lynum, 6813 County Road 219, Wildwood, disbarred effective immediately following a Jan. 21 court order. (Admitted to practice: 2005) During personal litigation proceedings, Lynum repeatedly made statements that disparaged the judiciary, opposing counsels and other litigants and parties. Lynum also failed to comply with court orders, and he filed frivolous federal lawsuits. In the disciplinary proceeding, Lynum failed to appear for his scheduled sworn statement and scheduled court appearances, failed to respond to the Bar’s complaint and discovery requests, and failed to appear for the sanction hearing. (Case No: SC20-746)

 

Beth Ann Maliszewski, P.O. Box 2425, Fort Myers, disbarred, effective immediately because of the current suspension. (Admitted to practice: 2001) Maliszewski is a party in a paternity action involving visitation and paternity rights over her child. After becoming aware of a potential paternity action, Maliszewski filed an injunction against the child’s prospective father and had him arrested, resulting in him receiving a no contact order with the child. On the day the paternity action was filed, Maliszewski, via counsel, voluntarily dismissed the Petition for Injunction. Maliszewski avoided service in the paternity action, refusing to appear in court. She stopped working, turned off her phone and disappeared with the child. In a second matter, Maliszewski was appointed and paid $1,000 for a Guardian ad Litem family law matter and failed to fulfill her duties. She did not respond to The Florida Bar or participate in the disciplinary proceeding. (Case No: SC20-813)

 

George Edward Ollinger, III, 100 Rialto Place, Suite 700, Melbourne, suspended by petition for emergency suspension effective 30 days following a Jan. 19 court order. (Admitted to practice: 1977) Ollinger engaged in patterns of misconduct, including, but not limited to, misappropriating client’s funds, commingling attorney and client funds, and engaging in conflicts of interest. A petition for emergency suspension is granted by the Florida Supreme Court when The Florida Bar presents clear and convincing evidence that a lawyer appears to be causing great public harm (see Rule 3-5.2(a)) and also constitutes a formal complaint so that the matter is fully investigated and a final disciplinary action is ordered. (Case No: SC21-28)

 

Andrew Spark, 13201 Roosevelt Ave., PMB 818085, Flushing, N.Y., disbarred retroactive to July 15, 2019, when he was suspended because of a felony conviction, following a. Jan. 21 court order. (Admitted to practice: 1991) Spark abused his privilege to practice law and used his law license to engage in deception with the intent to access private rooms provided to attorneys in two separate jail facilities for the purpose of soliciting prostitution. Spark video recorded these encounters with the goal of creating an adult pornographic film for his own prurient and/or financial interest. He pleaded guilty to three separate charges and was sentenced in each case to probation. (Case No: SC19-1163)

 

Barbara Jean Throne, P.O. Box 303, Blountstown, 91-day suspension plus attendance at Ethics School and Professionalism Workshop prior to reinstatement, effective 30 days following a Jan. 7 court order. (Admitted to practice: 1988) After filing a notice of appeal in her client’s criminal case, Throne failed to diligently represent her client and to adequately communicate with him. Throne failed to respond to numerous communications from the First District Court of Appeal to comply with court rules and orders resulting in the dismissal of her client’s appeal. Throne also failed to reply to the Bar’s disciplinary complaint and did not comply with the Referee’s pretrial order. (Case No: SC20-537)

FLORIDA BAR SEEKING APPLICANTS FOR STATEWIDE NOMINATING COMMISSION FOR JUDGES OF COMPENSATION CLAIMS

The Florida Bar is seeking applicants for:

Statewide Nominating Commission for Judges of Compensation Claims: Two lawyers from the territorial jurisdictions of the Second and Fourth state appellate districts to serve four-year terms commencing July 2, 2021. All applicants must be members of The Florida Bar who are engaged in the practice of law. No attorney who appears before any judge of compensation claims more than four times a year is eligible to serve on the commission, pursuant to F.S. §440.45(2)(b). Commissioners also are not eligible for state judicial vacancies filled by the Judicial Nominating Commission on which they sit for two years following the expiration of their term. Commissioners are subject to Florida financial disclosure laws. Meetings and deliberations are open to the public.

Persons interested in applying for these vacancies may click here to download the Application for Special Appointment or should contact Kristen Wilson at (850) 561-5757 or kwilson@floridabar.org, to obtain the application form.  Completed applications must be received by the Executive Director, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida, 32399-2300 or submitted via e-mail to specialapptapp@floridabar.org  no later than the close of business on Friday, February 12, 2021.  Resumes will not be accepted in lieu of the required application.  The Board of Governors will review all applications and may request telephone or personal interviews.

CHIEF JUDGE MARX ANNOUNCES MARCH TRIAL SCHEDULE

The Chief Judge has announced the March Trial Schedule. The number of jurors being called in to serve has been reduced.  The dates and divisions holding the trials are as follows:

March 1-March 31, 2021:

  • Mondays are reserved for Circuit Criminal trials
  • Tuesdays are reserved for County Court trials (all case types)
  • Wednesdays are reserved for Circuit Civil trials
  • Thursdays are reserved for Circuit Criminal trials
  • Fridays are reserved for special panels. These panels will be for one trial and one judge.

Pre voir dire will take place in the jury assembly room which has a seating capacity of 70 based on social distancing guidelines.  The pre voir dire eliminates individuals who cannot speak the language, have COVID anxiety, or other unavoidable scheduling issues.

The Clerk’s office will continue to question prospective jurors outside of the building regarding the COVID questions before they enter the jury assembly room.

Trial dates scheduled for the remainder of the month and for February are listed on the 15th Circuit Courts website at www.15thcircuit.com.