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In re Amendment to the Rules Regulating the Florida Bar-Rule 4-1.5(f)(4)(b) of the Rules of Professional Conduct
Citations: 939 So. 2d 1032; 31 Fla. L. Weekly Supp. 613; 2006 Fla. LEXIS 2259; 2006 WL 2771252Docket: No. SC05-1150
Court: Supreme Court of Florida; September 28, 2006; Florida; State Supreme Court
Proposals to amend the Rules Regulating the Florida Bar have been considered following a constitutional amendment approved by Florida voters in November 2004. This amendment mandates that in medical liability claims involving contingency fees, claimants receive at least 70% of the first $250,000 in damages and 90% of any damages exceeding that amount, excluding costs, and is self-executing. In response, attorney Stephen H. Grimes and fifty-four other Bar members filed a petition seeking to amend Rule 4-1.5(f)(4)(B) to limit attorney fees specifically in medical liability cases to 30% of the first $250,000 and 10% of all damages above that threshold. The Florida Bar opposed the petition, primarily arguing that it did not include a provision allowing claimants to waive their constitutional rights to choose their counsel. Many public comments echoed this concern. After oral arguments focused on the waiver issue, the Court directed the Bar to propose an amendment that acknowledges the constitutional provisions, requires attorneys to inform clients of their rights under the amendment, and establishes a process for clients to waive those rights, potentially with judicial oversight. In response, the Bar formed a Special Committee that drafted a proposed amendment, which was published for further comment. Following additional feedback, including objections from Grimes on behalf of the original petitioners, the Court decided not to adopt Grimes' proposed amendment, instead approving the Bar’s proposal to amend rule 4-1.5(f)(4)(B) with modifications. The proposed rule by the Bar includes three key components regarding contingency fee agreements for medical liability claimants: 1. Lawyers must inform clients orally and in writing about their rights under article I, section 26 of the Florida Constitution when entering into a contingency fee agreement. 2. If a lawyer declines to represent a client under the terms of this article, the lawyer must provide information, both orally and in writing, about alternative terms for representation and the client's right to seek another lawyer who will accept such representation. 3. Any waiver of rights under article I, section 26 by the client must be in writing, under oath, and in a specified format that acknowledges the rights of medical liability claimants. Opposition to the Bar's proposal focuses on two primary issues: the waiver of constitutional rights and the necessity of judicial approval for such waivers. Critics argue that the rights granted by article I, section 26 are personal and cannot be waived due to their inherent policies. However, it is noted that personal constitutional rights can typically be waived, as established by various Florida case law. The Bar acknowledges that while the constitution does not explicitly prohibit waiving these rights, it refrains from making a definitive ruling on the issue of waiver. Additionally, opponents argue that the proposal lacks a requirement for judicial approval of waivers, citing potential conflicts of interest when lawyers negotiate waivers with clients. The Court is urged to adopt an alternative waiver provision for legal representation that includes judicial approval, contingent on a client’s inability to retain an attorney due to fee limitations set by the Florida Constitution. Concerns are acknowledged regarding potential conflicts of interest when lawyers negotiate waivers of rights under article I, section 26 for fees exceeding those allowed by the constitutional provision. However, the proposed alternative waiver goes beyond ensuring that waivers are knowing and voluntary, introducing requirements for judicial determination of necessity and appropriateness of fees, and imposing a burden on clients to demonstrate reasonable efforts to find counsel without waiving rights. These proposed restrictions are rejected as inappropriate, emphasizing that a competent adult should freely waive their rights without undue court intervention. The Court recognizes the need for action following the amendment's passage and acknowledges that many medical malpractice claimants have chosen to waive their rights to secure legal representation. To address this need for guidance and uniformity, the Bar's proposal is adopted with minor modifications, providing a sufficient balance of interests during contract negotiations for representation. The Bar’s proposal allows claimants to waive their rights through a detailed waiver form that explicitly outlines the language of article I, section 26 and requires acknowledgment from the client on several points: the release of a constitutional right, the opportunity for independent legal counsel, agreement on increased attorney fees, a three-day cancellation period, the necessity of the waiver for engaging the chosen attorney, and confirmation that the waiver is knowingly and voluntarily made. The waiver form has been modified to require clients to acknowledge their agreement to an increased fee and the maximum allowable contingency fee percentages under Rule 4-1.5(f)(4)(B)(i), which can be agreed upon without prior court approval if the waiver is executed. Judicial approval is only necessary if a client waives rights under Article I, Section 26, and agrees to a contingent fee exceeding these maximum percentages. Clients unable to secure an attorney due to these limitations can petition the court for approval of their fee contract, which will be granted if the court confirms the client understands their rights and the contract terms. The provisions aim to protect clients during contract negotiations and ensure waivers are made knowingly and voluntarily. While judicial approval is not mandated for all waivers, clients may still seek judicial review, and courts are encouraged to assess whether waivers are made knowingly. The amendment to Rule Regulating the Florida Bar 4-1.5(f)(4)(B) is adopted and effective immediately. This decision follows extensive feedback from Florida attorneys and organizations, with most opposing the amendment. The Florida Bar’s representation indicated that the proposal for no mandatory judicial approval was influenced by judges' experiences, suggesting that current review processes are adequate and that there have been no significant complaints regarding overreaching in waivers.