Doctors take lawyer fees fight to Florida Supreme Court
■ Physicians want to prevent lawyers from pressuring patients to pay the higher fees allowed in the Florida Bar rules.
By Mike Norbut — Posted Nov. 7, 2005
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A new battle over attorney contingency fees is brewing in Florida, as doctors seek to bring bar association rules in line with limits established by a constitutional amendment voters approved last year.
The Florida Medical Assn. has filed a petition with the state Supreme Court requesting to change the bar rules. The move has been met with resistance from trial attorneys around the state. The high court was flooded with objections during its comment period, as lawyers registered their opinions by the dozens.
But regardless of how many individual comments are made, the medical society argues that the Supreme Court, which has final authority over the state's bar rules, should listen to the voice of the people.
"The people of Florida have spoken," FMA spokeswoman Lisette Mariner said. "What we're trying to do is follow through and make sure the amendment is followed."
Attorneys, on the other hand, argue that patients have a right to waive their right to the lower fees established by the amendment. Changing the bar rules would undermine that right, they say.
Lawyers also say the court should at least wait until the amendment withstands a legal challenge before even considering changing bar rules.
"The FMA wants this amendment to be treated differently than other constitutional rights," said Michael B. Feiler, president-elect of the Dade County Trial Lawyers Assn., which filed comments objecting to the proposed changes. "In effect, what the FMA wants to do is take away the right for people to contract as they see fit."
Last fall, nearly 70% of voters approved an amendment by referendum limiting contingency fees in medical liability cases. The measure sets attorney fees at 30% of the first $250,000 in damages and 10% of all damages that exceed that amount. Doctors argued that limiting fees would not only give patients a greater share of their awards but also make lawyers less likely to take nonmeritorious cases.
Florida Bar rules, however, apply a higher threshold before a fee would be considered excessive. If all defendants admit liability, for example, an attorney could collect as much as one-third of any damages up to $1 million, 20% of damages between $1 and $2 million, and 15% of damages exceeding $2 million, according to the rules.
If the rules are not changed, attorneys likely would ask clients to sign a waiver if the lawyers did not feel the contingency fees allowed under the amendment would make it financially feasible for them to take a case, Feiler said. Just as citizens can waive their Miranda rights, for example, they should have the option to waive their rights to collect a certain amount on lawsuit damages, attorneys said.
But a patient likely would waive those rights only after taking advice from the exact person who stands to benefit from that waiver, the FMA argues in its comments to the court.
"This rationale would have the lawyer negotiating with the client in order to have the client agree to give up his or her constitutional right in order that the lawyer may receive a higher fee," the FMA states. "To permit such a practice would appear to put the lawyer in an unethical position and fly in the face of the constitutional mandate overwhelmingly approved by the Florida voters."
The AMA and Mississippi State Medical Assn. filed a joint statement in support of the FMA's petition. It points out that, among other things, the amendment has not been proved invalid. Thus, the court should not wait to change the bar rules just because it's expected that at some point, an eventual challenge to the amendment will wend its way up to the high court, the associations said.
Attorneys' arguments that the court should delay action until it has ruled on the amendment in a case "ignore clear precedent," said the associations' statement. "Moreover, legal restrictions on contingency fees in medical malpractice cases are commonplace. Seventeen states, not including Florida, currently have a statute or court rule that establishes a specific limit or sliding scale on contingency fees attorneys may charge clients who file a medical malpractice claim."
A date for interested parties to make oral arguments before the court has not been set.