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Lawyers' fees.

Abraham Lincoln is reputed to have said: "A lawyer's time is his stock in trade."

That statement is no longer true in Florida. In one area of law this year, and maybe many areas of law to come in the future, the prevailing lawyer will have to be paid solely based upon a legislatively set percentage of the value of his client's case. So said the First DCA in Wood v. Florida Rock, 31 Fla. L. Weekly D1458. But the First DCA certified as a question of great public importance: "Do the amended provisions of [section] 440.34(1), clearly and unambiguously establish the percentage fee formula provided therein as the sole standard for determining the reasonableness of an attorney's fee to be awarded a claimant?"

In an order entered July 12, four justices of our Supreme Court, by denying review of the certified question, answered it in the affirmative and relinquished to the legislature the power to regulate attorney fees without court input. Up to July 12, it has always been the rule that the legislature may set a guideline for determining the amount of a reasonable fee, but it was always up to the courts to increase or decrease the fee based upon the factors contained in Rule 4-1.5(b). No more. The legislature may now impose a set fee schedule in virtually any area of law in which a statute allows for the award of prevailing party fees. The courts may not interfere, no matter how ridiculous the fee amount is.

In the workers' comp law involved in this case the "client" injured worker may not "waive" the fee "schedule as is possible in medical malpractice cases because the law makes it a crime for an attorney to try to collect a higher-than-fee-schedule fee and makes approval of the fee by a judge of compensation claims mandatory.

So the "sole" standard for the determination of a reasonable fee for an injured worker's attorney is a percentage (roughly 10 percent) of the "benefits achieved." This is without regard to the amount of time spent, the difficulty of the issue, the contingent nature of the relationship, or the tenacity of the defense. As Judge Barfield said in his concurring opinion, "The validity of the statute which severely impairs, if not eliminates, the ability of claimants to obtain the assistance of counsel, has not been raised." Validity could have been raised before the Supreme Court, had the court chosen to give the parties an opportunity to brief and argue it before the court. That won't happen now. The answer has been given based solely on the parties' request that the court take jurisdiction, a request the court denied.

There is now a second case before the court with the same certified question. The record in this second case did raise constitutional issues and it is hoped the court will accept discretionary jurisdiction in Lundy v. Four Seasons and Liberty Mutual, 31 Fla. L. Weekly D 1663, but that may be wishful thinking. If the court wanted to keep its power to regulate attorneys, it could have done so in Wood. In Lundy Judge Ervin concurred because he was constrained to follow Wood. He commented that the fee for the successful claim against Liberty Mutual by Lundy's attorney resulted in an hourly fee of $13.08. According to Department of Labor statistics, that hourly rate made the lawyer, in an average law office, the lowest hourly paid employee.

I recently re-read the preamble to the Rules of Professional Conduct. It says: "An independent legal profession is an important force in preserving government under law, for abuse to legal authority is more readily challenged by a profession whose members are not dependent on the executive and legislative branches of government for the right to practice. Supervision by an independent judiciary, and conformity with the rules the judiciary adopts for the profession, assures both independence and responsibility." The rules have always said that all the factors contained in Rule 4-1.5(b) should be considered in determining what a reasonable fee is, not just one factor. My right to practice is now solely dependent upon the legislature.

Is your area of practice next? Will a fee schedule be enacted in the next session in Ch. 627 so that any suit against an insurance carrier will result in a fee of 10 percent of the benefits obtained by a prevailing insured and prevent any court from increasing or decreasing the percentage fee the legislature sets?

In Florida, Abe Lincoln would have been wrong. A lawyer's time means nothing. And only clients with big money value cases will. be able to retain counsel to collect what is due them.

Mark L. Zientz

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Title Annotation:Letters
Author:Zientz, Mark L.
Publication:Florida Bar News
Article Type:Letter to the editor
Date:Aug 1, 2006
Previous Article:Errata.
Next Article:Judicial discipline.

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