SFLG MHBM July 9 2018

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YOUR GUIDE T O L AW, A CCOUN T ING & F IN A N CE

The Pro Bono Attorneys : Serving as Advocates for Clients in Need

Also: • Supreme Court’s Masterpiece Cakeshop Ruling Provides No Clear Guidance for Businesses or Consumers • ‘Due Process’ Should Apply to Undocumented Immigrants • What Does ‘Right to Try’ Act Mean for Providers and Patients?

• Wearable Medical Devices Raise Issues for Physicians www.sflegalguide.com

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A Salute to Pro Bono Legal Service Compassion, empathy and generosity are alive and well in South Florida’s legal community. Every day, the region’s busy attorneys provide invaluable pro bono services to residents who are unable to pay for their services. That includes infants and children who cannot speak for themselves in a court of law, as well as adults facing eviction or foreclosure, and aging seniors who need a guardian to protect their interests.

All too often these vulnerable members of our community face legal issues they do not understand or cannot assert their rights.

For instance, a con artist might try to take financial advantage of a confused adult or a landlord might refuse to return a tenant’s security deposit, despite the terms of lease.

In South Florida, nonprofit organizations like Legal Services of Greater Miami, Legal

Aid Service of Broward County and Coast to Coast Legal Aid of South Florida provide low-cost or free services to area residents.

In addition, the region’s law schools offer assistance with legal matters through their student clinics.

But the need for pro bono service continues to grow, year after year. A large percentage of Americans with legal problems simply cannot afford to hire a lawyer. Those in middle-income brackets may not qualify for free or reduced-fee legal assistance.

Fortunately, The American Bar Association, The Florida Bar and many other legal organizations recognize the importance of assisting these types of clients, and giving back to local communities. Many law firms of all sizes have organized pro bono programs and encourage their attorneys, paralegals

and other staffers to contribute their time to worthy causes.

In this issue of South Florida Legal Guide, we salute several of the thousands of South Florida attorneys who assist clients on a pro bono basis. It’s a theme that could be repeated issue after issue, year after year.

Of course, you don’t have to be an attorney to give something back to your community. For instance, there is a deep, ongoing need for guardian ad litem volunteers to support and represent children in the courts.

That includes young children abandoned by their parents or removed from parental custody, as well as adolescents in foster care facing the challenges of finding a job or continuing their education.

Through their pro bono contributions, South Florida’s attorneys serve as role models

RICHARD WESTLUND

for volunteer leadership. Let’s follow their example and set aside time and do our part to contribute to the future of our community.

Richard Westlund Editor

PUBLISHER JACOB SAFDEYE jacob@sflegalguide.com EDITOR IN CHIEF RICHARD WESTLUND editor@sflegalguide.com GUEST CONTRIBUTORS DAVID ALSCHULER ELIZABETH S. BAKER STEPHANIE L. CARMAN MARK E. FRIED MARCELA LOZANO EUGENE K. PETTIS PABLO S. QUESADA JEFFREY S. WEINER SOUTH FLORIDA LEGAL GUIDE - BM Volume 2, Number 7, 2018 ON THE COVER Mark Fried, Matthew Fried and Mortimer Fried This is an independent supplement by South Florida Legal Guide Mailing address P.O. Box 630428, Miami, FL 33163. All rights reserved. All titles registered and may not be used without permission. Reproduction in whole or in part of any text, photograph or illustration without written permission of the publisher is strictly prohibited. The South Florida Legal Guide makes no guarantee regarding the accuracy of information presented, results reported, or safety of products or activities described herein. The publisher notifies readers that the hiring of a professional is an important decision that should not be based solely on advertisements. Before you decide, ask the professional to send you free written information about qualifications and experience.

Contact: info@sflegalguide.com or call: (786) 879-7638 • www.sflegalguide.com

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THE PRO BONO ATTORNEYS Serving as Advocates for Clients in Need For attorney Mark Fried, pro bono service is a family tradition. His father Mortimer generously donated his professional time without charge to clients in need during his long career as an attorney.

Now, his son Matthew is following in his footsteps as an associate at his Miami Beach firm.

“Through the years, I have always had a pro bono case open at all times,” said Fried, who was recognized by Dade Legal Aid several years ago for handling dozens of civil cases through the non-profit’s “Put Something Back” program.

For example, Fried took a 2013 case for a mother of three facing foreclosure of the home where she lived with her children. Working diligently, Fried was able to stop the foreclosure sale on three separate occasions, and help her find a new job , so that she could make her payments on time.

Last year, Fried assisted clients in three foreclosure cases, getting two of the matters dismissed. In the third case, his client had been making mortgage payments for seven years, only to find that the bank still held title to

the home. “I was able to track down the documentation, and reverse the foreclosure,” he said.

Fried credits his father, who died in 2017 at the age of 95, with setting a high standard for pro bono service. “Although my practice is employment-based, I worked on many complex foreclosure matters,” he said.

“Now, my son is also taking on pro bono cases at our small firm.”

Every year, thousands of South Florida attorneys like the Frieds contribute their time and skills to help clients who need legal assistance, but can’t afford the fees.

Many law firms support their efforts through pro bono programs like Dade Legal Aid, which is supported by the Dade County Bar Association and Legal Services of Greater Miami, Inc. In Broward, Kim Vaughan Lerner, a Fort Lauderdale firm is a longtime sponsor of Legal Aid Service of Broward County, which teamed with Coast to Coast Legal Aid of South Florida to support Broward Lawyers Care, a joint pro bono initiative.

HELPING BATTERED WOMEN Elizabeth S. Baker, a

MARK FRIED family law attorney with Hinshaw & Culbertson in Coral Gables, has spent 40 years helping battered women and other clients with challenging matters. She was recently honored with the 2018 Jean Crowe Pro Bono Award, from the American Bar Association’s Section of Family Law. “Back in the 1970s, I helped many clients who had been beaten or burned by their husbands or partners,” Baker said.

“I also worked on legislation to repeal inter-

spousal tort immunity, which prevented a wife from suing her husband for personal injuries.”

While the laws have changed since then, Baker says there is still far too much violence against women, as someone is battered every nine seconds in the U.S. For the past five years, Baker has represented a Tunisian woman in an arranged marriage who was beaten regularly by her husband and in-laws.

“Her husband controlled her life for many years,” Baker said. “But after

ELIZABETH S. BAKER having two children, she became more independent, helping her daughters excel in school.”

After neighbors reported a particularly bad beating, Baker took the woman to the county’s domestic violence unit for treatment and eventually obtained a permanent injunction against the husband. When the husband eventually filed for divorce seeking custody of the children, the judge heeded Baker’s recommendation and ordered him to attend counseling before any visitation.

“Now, my client has a job and a safe place to live and is going a great job with her kids,” Baker said. “But when police searched the home after the permanent injunction was issued, they found a gun under the bed. So, leaving her home and her husband at that time may have saved her life.”

RESOLVING CHILD ABDUCTION CASES It’s not just long-time attorneys like Baker who give back to the com-

• CONTINUES ON PAGE 4 www.sflegalguide.com

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Pro Bono Attorneys Serving as Advocates for Clients in Need • CONTINUED FROM PAGE 3 munity. Marcela Lozano, a partner with Shutts & Bowen, has taken a leadership role in resolving several international child abduction cases.

“Being able to help parents who haven’t been able to contact their children, has been some of the most fulfilling legal work I’ve done,” she said.

One pro bono case involved a 16-year-old from the Czech Republic, while another revolved around a child from Cuba. “We typically represent a petitioner who has an arrangement for custody in their homeland,” Lozano said. “When one of the parents relocates to South Florida with the child, but without receiving permission, we request an evidentiary hearing on the issue to have the child returned, in accordance

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with that agreement.”

Lozano, who often teams with other Shutts & Bowen attorneys, says these pro bono cases are labor intensive, and may take months to resolve, either through a settlement or a court order. “My pro bono experience has been incredibly rewarding,” she added. “It’s also given me great experience in the federal courtroom here.”

HELPING CLIENTS OF ALL AGES David Alschuler, a Miami Beach attorney, has given about 2,000 hours of pro bono work through the years. “I have handled 80-plus matters on a pro bono basis ranging from a few hours to dozens of hours and more,” said Alschuler, whose work involves dependency, termination of parental rights, criminal matters, probate

MARCELA LOZANO incapacity, domestic violence and other cases.

“Pro bono is important to me for several reasons,” Alschuler said. “As

lawyers, we have valuable knowledge and skills which relatively few people possess. We also have a moral obligation to use

DAVID ALSCHULER these legal capabilities to assist persons who need representation. ” Alschuler has been honored five times by "Put Something Back," and received The Florida Bar President's 2018 Pro Bono Service Award for the 11th Judicial Circuit in January. He has mentored law students, colleagues and new pro bono attorneys in foreclosure cases.

Recently, Alschuler was appointed pro bono guardian ad litem, representing a child in a post-divorce case that spans Miami-Dade and Orange Counties, including the filing of a criminal case against one of the parents. In another case, he mentored a young man for a year through the “I’m Ready” program, af-

ter his pro bono client had been convicted of serious offenses.

Alschuler has also been actively involved in the Miami-Dade State Attorney’s Office’s “Second Chance – One Stop” sealing and expungement program, and the Joint Clemency Project to Restore Voting Rights for Convicted Felons.

Reflecting on the importance of pro bono service, Alschuler encourages other attorneys to take on these important cases. “Acting in an altruistic manner is good karma and benefits your own well-being,” he says.

‘It also provides a platform for networking, business development and professional development.”

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Wearable Medical Devices Raise Issues for Physicians

BY STEPHANIE L. CARMAN

In South Florida and across the country, a growing number of physicians are using wearable medical devices to monitor chronic conditions. Today’s monitoring devices, along with their sophisticated applications, have a multitude of benefits, including providing constant care and reducing the cost and need for office visits. They can potentially save lives and assist with ensuring the delivery of cost-effective patient care. However, there are important legal considerations that physicians should understand when deploying this rapidly evolving technology.

One of the most important issues is data privacy. Various state and federal laws impose requirements on the disclosure and, occasionally,

use of health information. Physicians should understand the applicable laws and address them.

For example, they should adopt privacy policies and practices that protect the stream of data from a patient’s monitoring device and regularly ensure the safety of his or her network. That might also mean limiting access to the data to nurse practitioners, physician assistants or other clinicians and ensuring correct documentation is added to the patient’s electronic health record (EHR). Physicians should also explain to their patients what data is being collected and how it will be used, so patients can give informed consents.

Another area that physicians need to be cognizant of is state licensing

regulations. For example, they may come into play if a physician is treating a patient in a state in which he or she is not located.

In Florida, we see a lot of individuals who only reside in the state on a seasonal basis.

From the legal standpoint, one area we should see developing in the coming years is how devices will be used in medical malpractice cases.

Areas that will be fleshed out include when a physician-patient relationship requiring a duty of care is created and what constitutes a breach of care when a physician decides to use or, conversely, not to use wearable medical devices.

Questions that will likely be addressed include whether the data was timely and accurately

reviewed, was it timely addressed and who is responsible during each of these steps. The device itself may also be investigated. For example, one issue may be whether the device’s design or its software application is the reason why it recorded inaccurate data. Similarly, patients’ actions will need to be evaluated including, did the patient properly use the device or alert physicians to changes they were noticing. All of these issues may need to be sorted out in a court of law.

Physicians also need to stay apprised of product developments, including potential recalls or software updates. If a new version of a monitoring application is released, a procedure should be in place to update the patient’s device, either remotely or in the next office visit.

Likewise, if there is a recall of the device itself, physicians should immediately remove any equipment still in inventory and promptly notify their patients who are actively using the technology.

While a manufacturer traditionally has a duty to warn consumers about a recall, it is the physician who has the strongest ongoing contact with affected patients.

In any case, physicians and other providers

STEPHANIE L. CARMAN should have effective procedures in place to notify patients about any issues regarding their monitoring devices and applications. In the event of a problem, they should document the steps they have taken and be sure their recordkeeping will stand up in a court of law.

Although outside the scope of this article, two additional considerations are worth mentioning.

First, providers should consider fraud and abuse laws as they enter into agreements regarding devices or referrals of patients for health care items or services, particularly if they are reimbursed by federal programs like Medicare or Medicaid.

Second, providers should be cognizant of consumer protection laws that prohibit deceptive and unfair business practices when explaining the devices and benefits to consumers.

Monitoring devices and applications are changing the practice of medicine and will continue to do so in the future. Therefore, it is essential for providers to understand the legal and regulatory issues associated with the deployment of this powerful technology.

Attorney Stephanie L. Carman assists healthcare and life science clients in transactional and litigation matters at Hogan Lovells LLP in Miami.

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‘Due Process’ Should Apply to Undocumented Immigrants

BY JEFFREY S. WEINER

When foreign citizens land at Miami International Airport, set foot on a Florida beach, or cross the U.S. border from Mexico or Canada, they arrive with very limited legal rights. The same is true for “undocumented” immigrants who may have lived in South Florida for decades (and are not U.S. citizens and do not hold a “green card” for lawful residency.)

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Under the federal government’s crackdown on illegal immigration, these adults, teenagers and children are at risk of being deported every day of their lives. A traffic citation, a misdemeanor marijuana charge, another misdemeanor or a felony could lead to imprisonment, an eventual hearing before a U.S. Immigration Court judge and an order to return

to the country they left days, weeks or years ago.

Appearances in court for a non-immigration matter, or just going to work can result in an arrest by federal authorities.

Every day, illegal immigrants come to the U.S. seeking asylum from political persecution, an escape from violence and abuse, and an opportunity for a better life. Under the due process provisions

of the U.S. Constitution, they should be given a fair hearing where they can present evidence to support their claims and receive an impartial judicial ruling.

However, that is not how it works today under the government policy of strict enforcement of U.S. immigration laws. After spending time in incarceration, foreign adults appear before a federal immigration judge for a deportation hearing. Unlike other U.S. courts that are independent from the Executive Branch, the immigration courts are part of the Justice Department and the Executive Branch of our government, not the judiciary.

Facing a confusing situation in a courtroom – often not speaking the language or understanding the law – an illegal immigrant has little chance of obtaining a ruling to remain in the U.S. A competent immigration attorney may be able to persuade the immigration judge to defer a decision on deportation pending a fuller presentation of the facts.

Traditionally, undocumented immigrants have been allowed to enter the U.S. based on a claim of political asylum. This requires a review of the foreign national’s situation at their home and the reasons for entering

JEFFREY S. WEINER the U.S. Asylum-seekers often flee brutal regimes and lawless countries in Central America. Under the current policy, it is likely those refugees would be sent back to their homelands in spite of well-founded fear of harm in their home country.

Supporters of the current policy have argued that strict enforcement is necessary to deter a flood of undocumented immigrants. After all, adults who cross the border without papers are breaking the law and should be held accountable.

We must provide

fair hearings based on due process; deport the convicted violent felons, and weigh other claims based on their individual merits. Let’s live up to the concluding words of the Pledge of Allegiance: “With liberty and justice for all.”

Jeffrey S. Weiner is a Miami based board certified criminal defense attorney whose clients include foreign nationals facing United States immigration consequences as a result of alleged criminal conduct.

He is a former president of the National Association of Criminal Defense Lawyers.

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What Does ‘Right to Try’ Act Mean for Providers and Patients?

BY EUGENE K. PETTIS

Under the Right to Try Act signed into law this May, patients with life-threatening conditions can directly ask drug manufacturers for experimental treatments that have not yet been completely reviewed and approved by the Federal Drug Administration (FDA). The goal of the federal law – and the 38 state laws that preceded its passage – is to provide a possible life-saving option when traditional treatments have failed.

In that regard, the law

f

echoes the FDA’s “compassionate use” program, which gave expedited approval to patients seeking medications that were still under study.

Now, the patient and physician can bypass the FDA and go straight to the manufacturer of the drug or medical device.

Under the new law, an experimental drug, biological product or device must have successfully completed a phase 1 clinical investigation, the first of a multi-step FDA

approval process. It must remain under investigation in a clinical trial approved by the FDA and not be licensed or cleared for commercial distribution.

The law also provides liability protection to a physician prescribing the drug, as well as the manufacturer, distributor, dispenser or user.

So, whatever the outcome, it’s unlikely to result in a medical malpractice lawsuit.

However, the law does not require a drug manufacturer to make an experimental medication available to a patient or provider. Nor does it mandate affordable pricing for new treatments.

In some cases, a manufacturer might choose to withhold a new treatment because of the potential for negative outcomes. Giving an early-stage drug to patients who die would result in negative statistics and perhaps delay eventual FDA approval or success in the commercial market.

On the other hand, a manufacturer might try to publicize an unproven drug or device to capitalize on the desperation of patients hoping for a cure.

Along with these concerns, there are other issues for patients and providers to consider before embarking on a medical journey with an unknown destination.

First of all, phase 1 clinical trials are designed primarily to check for adverse reactions, and involve only a small sample of patients. About

70 percent of those experimental treatments move into phase II trials, which may test different dosages or formulations of the drugs . If successful, those treatments then progress to large-scale phase III and phase IV trials that deliver far more accurate assessments of safety and efficacy or effectiveness.

Because only about 5 percent of experimental treatments that pass phase I trials ever make it to market, the odds are against an unproven drug being effective for a patient’s condition. That doesn’t mean an experimental drug shouldn’t be tried when all else fails, but both the patient and provider should have realistic expectations about the results.

Finally, there is usually a small subset of patients who beat the odds for even the most challenging medical conditions. Trying an experimental treatment could

EUGENE K. PETTIS reduce even a 5 to 10 percent chance of survival. Therefore, both patients and providers should carefully consider their options before making a decision based on the new “right to try” law.

Eugene K. Pettis is a founding partner at Haliczer Pettis & Schwamm whose trial practice includes medical malpractice, personal injury, commercial litigation and professional liability matters.

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Supreme Court’s Masterpiece Cakeshop Ruling Provides No Clear Guidance for Businesses or Consumers

BY PABLO S. QUESADA

The U.S. Supreme Court decision involving Masterpiece Cakeshop in Colorado has generated much interest within legal circles and the business community at large. This case involved a shop owner who advised a gay couple he would not create a cake for their wedding, because of his religious opposition to same-sex marriages. The Colorado Civil Rights Commission determined the shop’s actions violated Colorado’s Anti-Discrimination Act, because it discriminated on the basis of sexual orientation. The state courts of Colorado affirmed the Commission’s ruling.

The legal question before the U.S. Supreme Court was whether the Commission’s order violated the U.S. Constitution, by violating the shop owner’s freedom of speech and the free exercise of religion under the First Amendment.

Thus, the Court was tasked with balancing the authority of a state to protect the rights of a protected class, gay persons in this instance, with the rights of individuals to exercise their fundamental First Amendment rights to speech and to the exercise of religion. In its decision, however, the U.S. Supreme

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Court kicked the proverbial can down the road.

Instead of addressing the substantive legal issues presented, it overturned the Colorado court’s decision on the basis that, in making its determination, the Commission failed to act as a neutral decision-maker and failed to provide fair consideration to the baker’s religious objections. The Supreme Court recognized that the legal question presented remained pending and business owners and consumers are left seeking further guidance from the courts.

To be clear, the Supreme Court was not being asked whether a public establishment could discriminate against a particular class of people – of course, the answer to that question is a resounding no! And the Supreme Court’s decision does not grant any establishment a license to discriminate against any particular group. There are public accommodation laws at the federal level that serve to protect persons

from discrimination or segregation on the basis of race, color, religion and national origin, in enjoying goods, services, facilities and accommodation in places such as hotels, restaurants, movie theaters, stadiums, gas stations, etc. These public accommodation laws have been expanded by state legislatures, and at county and city levels, many of which additionally protect persons from discrimination on the basis of sex, pregnancy, age, disability, marital status and sexual orientation.

Similarly, there are laws that protect persons from discrimination in employment, housing, and credit and financing practices, among others, as well as program or activities receiving federal financial assistance.

The question that remains, however, is to what extent does the First Amendment protect a business owner from having to provide a particular service, and particularly, when that service is one disproportionately or

exclusively provided to a protected class of persons.

For example, there is no question that a doctor may refuse to prescribe contraceptives, and the question of discrimination does not come into play, because the recipients of these services are not limited to a particular class.

However, when the persons requesting the service are limited to one class, as in the same-sex wedding case, it requires a determination as to whether refusing such service is unlawful discrimination against a particular protected class or the provider’s lawful exercise of his or her First Amendment rights.

Thus, we are left to balance protecting classes of people from discrimination with respecting the First Amendment rights of business owners, and are left to question: May a restaurant refuse to host a wedding or reception for a multi-faith wedding?

May a baker refuse to design a cake for Easter or for a Bar Mitzvah? May an endocrinologist refuse

PABLO S. QUESADA to provide hormone therapy to a person with gender identity disorder?

May an infertility specialist refuse to provide in vitro fertilization to a single woman?

These questions remain unanswered by the U.S. Supreme Court and, as it advised, these questions

The question that remains, however, is to what extent does the First Amendment protect a business owner from having to provide a particular service, and particularly, when that service is one disproportionately or exclusively provided to a protected class of persons.

will require further elaboration in the courts, and these disputes must be resolved with tolerance, respecting sincere religious beliefs and without subjecting those in search of goods and services in the open market to indignities.

Attorney Pablo S. Quesada is a founding partner at SMGQ Law in Coral Gables who focuses his practice on corporate, securities, real estate and tax law.