Petition to limit malpractice fees now at the court August 1, 2005 Senior Editor Regular News Petition to limit malpractice fees now at the court Bar response says it’s too early to take up any rule amendments Gary Blankenship Senior Editor A lawyer acting for the Florida Medical Association has filed a rule petition with the Supreme Court asking that a constitutional limit on contingency fees in medical malpractice cases be embedded in Bar rules. The Bar has filed a short response, calling the petition premature, among other things.The court has asked for comments from any interested parties (see Notice on page 17) and has set oral argument for November 30. It also has, besides the Bar response, received comments from nine attorneys and two voluntary bar associations as of this Bar News’ deadline, all opposing the petition.Stephen Grimes, a former Supreme Court justice who represents the FMA on the issue, filed a petition signed by him and 54 other Bar members on June 29. They had filed a notice of the proposed rule change, as required by Bar rules, 90 days previously, so the issue could be reviewed by the Board of Governors and advertised in the Bar News. Grimes noted in the petition that voters in November 2004 approved a constitutional amendment that limited lawyer contingency fees in medical malpractice cases. Those limits were set at 30 percent of the first $250,000 awarded, not counting costs, and 10 percent above that amount.But attorneys, the petition said, began getting their clients to waive that constitutional provision and agree to higher fees, so the petition asks that the constitutional fee limit be grafted into Bar rules.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,” the petition said. “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 response brief by the Bar was filed by Tallahassee attorney Barry Richard, following Board of Governors consideration of the proposed rule at its June meeting.It listed three reasons for not taking up the petition:• “The relief sought is premature.”• “The petition seeks relief that presumes validity and interpretation of a November 2004 amendment to Article I, Section 26, of the Florida Constitution before the court has adjudicated the provision’s validity and interpreted its meaning.”• “Issues involving validity and interpretation of a constitutional amendment are more appropriately resolved in an adjudicatory forum than through the rulemaking process.”Richard noted that the Bar has not opposed past rules that set contingency fee schedules. He also wrote that while the petition asked for a change in the fee schedule, it did not cite any evidence of more abuse of contingency fees than there was in 1986, when the court last addressed the fee schedule.The petition also assumes the constitutional amendment is mandatory and cannot be waived, Richard wrote, adding, “There can be no doubt that the issues of validity and interpretation will reach this court in an adjudicatory proceeding in short order. For the court to consider a rule change before adjudication of those issues would be to put the cart before the horse.”The Bar asked that if the court does consider the rule change, that it set a briefing schedule.The 11 other petitions all cited similar or related reasons: claiming the real intent is to limit people’s access to the courts; it only serves a narrow interest rather that the broad purposes of The Florida Bar; and the amendment and proposed rule interfere with the right to contract.“The amendment is a wolf in sheep’s clothing, and through the subject petition the wolf’s fangs now begin to show,” wrote Tallahassee attorney Brian J. Wolk. He noted Justice Fred Lewis’ dissent in the court opinion that allowed Amendment 3 on the ballot, adding, “The subject petition is simply a further attempt to, as Justice Lewis noted, ‘impact access to the courts as guaranteed in Article 1, Section 21 of the Florida Constitution.’”Orlando attorney Scott McMillen wrote, “Other constitutional rights are freely waivable and there is nothing in the ballot language or in Section 23 suggesting it is not freely waivable like other constitutional rights. It is absurd for Petitioners to suggest to the court that Amendment 3, placed on the ballot by the Florida Medical Association, was honestly intended by its sponsors to ensure that patients will make more money when they file malpractice claims, and thus have even more incentive to sue the very sponsors of Amendment 3. The sole and transparent reason for Amendment 3 was to make it less likely for victims of malpractice to find representation, and without competent representation they have no access to the courts.”St. Petersburg attorney Roy L. Glass said he opposed the proposed rule change but said Bar rules should be modified so clients specifically opt for the fee schedule in Amendment 3 or specifically waive it.