Petition to limit malpractice fees draws opposition September 1, 2005 Regular News Petition to limit malpractice fees draws opposition A petition seeking to rewrite Bar rules to include a recent constitutional amendment limiting attorneys’ split of medical malpractice awards is continuing to draw opposition, and not just from attorneys.The Supreme Court has given interested parties until September 30 to submit comments on the proposed rules petition, which was filed in June by former Supreme Court Justice Stephen Grimes and 54 other attorneys.As of mid-August, the court had received 78 comments — one from the Bar, three from voluntary bars, four from nonlawyers, and the rest from attorneys. Everyone opposed what has become called the Grimes petition.That petition was filed with the court in June and asks that Amendment 3 approved by voters be incorporated in Bar Rule 4-1.5(f)(4)(B) on contingency fees. The amendment specifies that in medical malpractice awards that the lawyer, after costs, may get no more than 30 percent of the first $250,000 and no more than 10 percent of awards above that amount.Lawyers responded to the amendment by getting clients to waive their constitutional right to that split of the awards. The Florida Medical Association, which backed the amendment, then asked Grimes to file the rule petition.That filing, in part, argues that the waiver has “the lawyer negotiating with the client in order to have the client give up his constitutional rights in order that the lawyer may receive a higher fee. To permit such a practice would not only put the lawyer in an unethical position, but fly in the face of the constitutional mandate overwhelmingly approved by Florida voters.”The Florida Bar Board of Governors voted to oppose the petition, calling it premature, noting the amendment has not been interpreted by the courts, and that issues relating to the substantive rights covered by the amendment are better resolved in the courts rather than the rulemaking process.Recently filed comments on the proposed rule have expanded on the objections of the original filers. Those comments include that the amendment itself may be unconstitutional because it limits the right to contract and could restrict the access to courts for many, if not most, patients injured by medical malpractice. Lawyers also argued that it is impermissible for the government to bar a citizen from waiving a right, and noted, ironically, if injured patients cannot waive their right under Amendment 3, they may forgo their right to file suit. And they agreed with the Bar it was wrong to use Bar ethical rules to influence substantive rights.Some of the filings:• “The Grimes petition is a blatant attempt to change substantive law through rules regulating professional conduct. That is inappropriate,” according to Miami attorney Andrew Ellenberg.• “Amendment 3, as passed, is unconstitutional, on its face, in my opinion, as it obviously violates the rights of medical malpractice victims to due process, access to the courts, equal protection and freedom of association, among other reasons,” argued Frederick A. Gunion, Jr., of Miami. “Additionally, a rule change such as the one Mr. Grimes’ petition suggests would prevent individuals from waiving constitutional rights, which they have the absolute right to do.”• West Palm Beach attorney Theodore Babbitt noted that Amendment 3 itself never mentioned attorneys’ fees, only stating a claimant’s rights to proceeds from a judgment or settlement. “[T]here is a substantial question as to the application of amendment 3 as it is written. At least one reasonable interpretation of its language suggests that it does not apply to a limitation on attorneys’ fees at all.”• Ft. Lauderdale construction lawyer Steven Lesser wrote that he had been appointed as chair of the ABA’s Task Force on Contingent Fees, created by the Tort Trial and Insurance Practice Section. The task force concluded last year that not only were Florida’s present contingency fee rules a model for the nation, but that proposals such as Amendment 3 would cause harm. It also found that only a small percentage of malpractice actions resulted in a claim. “Limiting fees by the formulae recently proposed in Florida and elsewhere by physicians’ associations would reduce the incidence of meritorious medical malpractice actions and further reduce legal exposure for those who commit medical malpractice,” the task force said in its final report.• Orlando compensation consultant Paul J. McConnell noted that medical malpractice defense attorneys are typically paid by the hour with little risk. Plaintiff attorneys, however, take a contingency fee and face a sizeable chance of not getting paid. He warned that approval of the suggested rule could lead to a new method of handling and financing medical malpractice suits. “[T]he petition could have the effect of splitting the plaintiff attorney business model into two components: a fee for service legal profession, governed by Bar rules; and a lawsuit financing business that operates largely outside the jurisdiction of the courts through loans with contingent repayment arrangements and risk-based fees. Such a business model could easily result in plaintiff[s] receiving even less of their proper judgments than they did under the pre-Amendment 3 fee schedule.”• “Well-settled Florida law holds that a party may waive any right to which that party is legally entitled, whether secured by contract, conferred by statute, or guaranteed by the Constitution ( Bellaire Securities Corp. v. Brown, 124 Fla. 47, 168 So. 625, 639(1936); Gilman v. Butzlaff, 155 Fla. 888, 22 So. 2d 263 (Fla. 1945),” Miami attorney Lori Walkman Ross and West Palm Beach attorney Jane Kreusler-Walsh wrote in a joint filing. “The proposed rule amendment elevates a claimant’s entitlement to compensation over other constitutional rights, and isolates this right as non-waivable. An alternative and more viable solution is to educate clients about their rights and ensure that any waiver of such rights is executed knowingly and voluntarily. This could be accomplished by an amendment to the existing Statement of Clients Rights, and a written waiver that meets certain minimum standards.” They went on to suggest such standards.• Jacksonville attorney C. Rufus Pennington agreed with Ross’ and Kruesler-Walsh’s argument, adding, “The problem with the Grimes petition is that Amendment 3 was necessarily presented to the voters in terms of a medical claimant’s rights. Rights can be waived. This right belongs to the claimant — not to the defendant. The defendant has no right at all granted by the text of Amendment 3 – and certainly has no right to preclude the claimant from making an informed and advantageous decision to waive his or her own constitutional rights . ”In addition to the individual comments, the Palm Beach County Bar Association submitted a resolution opposing the rule change, joining the Dade County Bar Association and the Dade County Trial Lawyers Association in asking the court to reject the Grimes petition. The two Dade bars have also asked the court to participate in oral arguments, set for November 30.The court is accepting comments on the petition until September 30.