Proposed Florida rule would prevent trial lawyers from taking cases.

The Florida Medical Association (FMA) has asked the state supreme court to promulgate a rule that would make it unethical for lawyers representing medical malpractice claimants to accept a client's waiver of any possible restrictions on attorney fees. Representing the Academy of Florida Trial Lawyers, the Center for Constitutional Litigation (CCL) is opposing the FMA petition--a follow-up to last November's constitutional initiative, the Claimant's Right to Compensation--as without merit and inappropriate.

The amendment adopted by voters last year guarantees that med-mal plaintiffs who have engaged a lawyer on a contingent-fee basis will receive 70 percent of the first $250,000 of any award and 90 percent of the remainder of the award. Despite its consumer-friendly name, the amendment will prevent many victims of medical malpractice from seeking redress in court rather than ensure that they receive compensation for their injuries. The amendment will make it financially impossible for trial lawyers to bring such suits on a contingent-fee basis. As a result, some plaintiffs have sought to waive the purported benefits of the right to compensation in order to secure representation.

Alarmed that injured patients had found a way into the courthouse, the FMA and its attorney, former Florida Supreme Court Justice Stephen Grimes, drafted a petition to amend the Florida Rules of Professional Conduct to prevent victims from waiving this constitutional right.

As a first step, the FMA petition was presented to the Florida Bar, which received an overwhelming number of comments against the rule. In light of these comments and the bar's independent assessment, its board of governors unanimously recommended that the court reject the proposed rule change.

The petition to the Florida Supreme Court was filed on June 29. The court is accepting public comments on the petition through September 30 and has scheduled oral argument for November 30.

CCL will file a memorandum in opposition on behalf of Florida's trial lawyers. CCL argues that by prohibiting waiver, the proposed rule seeks a substantive change in the law that is an improper subject of an amendment to an ethical rule; seeks to limit a personal constitutional fight that is waivable by definition; and prejudges the scope and definition of a constitutional provision that is likely to be the subject of litigation.