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In the last election, Florida voters passed an amendment to the state constitution that would limit fees to lawyers in medical malpractice suits. According to a column I read recently, lawyers are now telling potential clients that they can waive there constitutional right to have the fees limited. If the potential client says they don't want to do that, they are told they can look for another lawyer.
Can lawyers sidestep this amendment by having clients waive their rights?
You have to be a subscriber to get to the column, but here are some excerpts.
quote:Orlando attorney Anthony Caggiano, who won a $30 million judgment against medical providers last year in the wrongful death of a 10-year-old Apopka boy, says clients have no problem with the waiver.
"People have the right to waive any constitutional entitlement, like waiving the right to a trial by jury," Caggiano says. "We just share with folks that we can't do business under the amendment restrictions."
posted
I have no idea. I suspect it would depend on the rules of professional conduct in the state.
One potential problem is the lawyer advising a client to waive a right in which the lawyer has a conflict of interest. He's supposed to inform the client in writing and give him an opportunity to consult other counsel.
There's no doubt the state could pass a law that made such waivers illegal and subjected attorneys who asked for them to disciplinary proceedings. But I have no idea if the Florida amendment actually does this.
quote: Needless to say, the Florida Medical Association is fuming.
"I don't think it is legal, and I don't think it is ethical," says John Knight, general counsel for the FMA. "I think it is unscrupulous to ask someone to waive his constitutional right so an attorney can increase his fees."
The medical association is pushing a bill in the Legislature that forbids people to waive the amendment. The lawyers would immediately challenge any such law in court.
"The Legislature has no jurisdiction to set attorney fees," says Alexander Clem, president of the Academy of Florida Trial Lawyers. "I don't know that the Legislature has the ability to intervene between an attorney and his client in a private contract."
But the Legislature often passes laws to implement constitutional amendments and could claim that's what it is doing here.
To cover their bases, the doctors also are asking the Florida Supreme Court, which does have the power to regulate attorney fees, to adopt the amendment restrictions.
This should be interesting. It was a sharply divided Supreme Court that in 1986 set the contingency-fee scale now used by lawyers. It basically gives lawyers up to $400,000 of the first $1 million recovered for a client.
At the time, some justices worried the scale was too low and might cause lawyers not to take cases. That would limit access to the courts by people who could not afford to pay an attorney by the hour.
So it might be a hard sell for the court to drastically cut fees to $150,000 of the first $1 million, as the amendment says. That would raise the same issue of access to the courts. Lawyers say they can't take on complex, expensive litigation for that kind of money.
That seems to be what the FMA is pushing for.
To me, $150,000 seems like an enormous fee. The top level engineers in my company could work full time for half a year or more for that. I know lawsuits can drag on, but that still seems sufficient.
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posted
It's weird. On one hand, I'm thinking "those devious SOB's". On the other hand, I'm applauding their ingenuity.
Posts: 4625 | Registered: Jul 2002
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quote: To me, $150,000 seems like an enormous fee. The top level engineers in my company could work full time for half a year or more for that.
But that’s not just one person’s salary. It also covers support staff, and overhead, and profit for the company. And, if the attorney is working on a contingency-only basis, the fees from the cases she wins have to balance out the ones where she gets nothing.
Posts: 9866 | Registered: Apr 2002
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posted
Remember, though, that the $150,000 is fully burdened, not salary. So it needs to be compared to the rates your company charges for engineers, not what it pays engineers as salary. Also, the fees are contingent - risk of loss must be included in the price.
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I was comparing that to the fees my company charges, not what we made. Our top level engineers bill about $150/hour. That fee does include overhead, profit, etc., but not staff. That's charged separately.
Dana, that's a good point about the contingency fees. I hadn't factored that in.
It's still hard for me to think about turning down a case where you can only make $150,000.
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posted
That ain't $150thousand net profit, it's $150 thousand gross: ie before other expenses are taken out.
I'm also wondering about how the law affects the high-priced lawyers and law firms more-or-less permanently hired by insurance companies and other large corporations to defend against tort claims. If all retainer fees, salaries, time-based fees, expert witness fees, researcher fees, etc are included, those companies ain't gonna be able to have adequate counsel in court.
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Also expenses – Bob’s testifying as an expert witness in a case this spring and the attorney has flown out to take his deposition, will be flying him in twice, (airline & hotel) and has to pay Bob’s company for his time, both for research and actually testifying.
posted
Or lawyers are going to have to learn to live on less money, I suppose. I would cry a few tears for them, but I'm working in an industry where this is EXACTLY what's happening. And until they start calling lawyers in India to undercut American legal salaries, I'm afraid I can't muster too much pity.
quote:Also expenses – Bob’s testifying as an expert witness
hmmm...I was thinking that something like expert witnesses would be a separate issue, but maybe not.
Off topic, in Bob's industry, does he ever come upon expert witnesses that are basically hired guns that will say whatever needs to be said for his client to win?
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quote:It's still hard for me to think about turning down a case where you can only make $150,000.
A lot of malpractice cases will require more than 6 months full-time work by the attorney.
aspectre, I'm pretty sure this rule only applies to contingency fee arrangements, so it won't affect defendants. It does introduce some lopsided incentives into the mix.
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Zan, apparently it does happen that some experts become viewed as "hired guns" but I've also been told that once a person is tagged with that perception, their usefulness is diminished. Either the courts refuse to certify them as an expert or, more often, the opposing attorney just asks them about their record of cases and how much they charge and the jury tends to then discount whatever they say in their testimony.
I've been told by a couple of people in my field that if one truly wants to build a career being an expert witness in traffic safety, one should be careful to balance which side of the case one is working on behalf of. Sometimes the plaintiff, sometimes the defendant. Otherwise, it tends to look like bias.
As I'm not really interested in becoming a professional expert witness, I doubt I would ever have the problems of over-exposure or an imbalance in the "side" that hired me.
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