In Re: Petition to Amend Rules Regulating The Florida Bar Rule 4-1.5 (f) (4) (B) of the Rules of Professional Conduct. / SUPREME COURT OF FLORIDA CASE NO. SC05-1150 COMMENTS OF C. RUFUS PENNINGTON, III, ATTORNEY, FLORIDA BAR NO. 329029, AND OBJECTIONS TO PROPOSED AMENDMENT The undersigned member of The Florida Bar, C. Rufus Pennington, III, Fla. Bar. No. 329029, respectfully submits the following comments and objections to the proposed Amendment to the Rules Regulating The Florida Bar Rule 4-15(f)(4)(B) of the Rules of Professional Conduct. 1. The so-called Grimes Petition represents an extraordinary attempt to wage a bitter political campaign within the realm of The Rules of Professional Conduct. It is extraordinary because there is no precedent for such a political battle in this context, and because the Bar and Supreme Court forums for determining standards of professionalism and ethics are so unsuited for deciding the outcome of such an adversarial proceeding. 2. It should be quite apparent to all observers that the lead counsel for petitioners, and the final signatory to the petition, Mr. Grimes, was counsel for the political action committee created by the Florida Medical Association, Citizens
for a Fair Share, Inc. that operated the successful campaign for approval of Amendment Three. 1 Public records show that his firm was paid more than $100,000 in legal fees during the campaign alone (i.e., prior to follow-up activities such as the present proceeding). 2 What may be less well known, however, is that distinguished attorneys in the firm of Holland and Knight, whose views might otherwise be of great benefit and weight to the Court on this issue, have been precluded from expressing their views to the Court because their participation would constitute a conflict of interest precisely because their firm has been engaged as an advocate. This fact alone should illustrate why the process of professional regulation rule adoption is so poorly suited for adversarial proceedings, and why it is so troubling that the petitioning attorneys have chosen this particular forum to wage their political battle. 3 3. Perhaps it is worth pausing to recall that, The purpose of The Florida Bar shall be to inculcate in its members the principles of duty and service to the public, to improve the administration of justice, and to advance the science of ju- 1 Art. I 26, Florida Constitution. 2 See Florida Department of State Division of Elections, Campaign Expenses for Citizens for a Fair Share, Inc., available at http://election.dos.state.fl.us. 3 These observations are not intended to single out Mr. Grimes unfairly. It would appear that the great majority of signatories to the petition have an economic interest in serving the proponents of Amendment Three. The first signer is the General Counsel of the Florida Medical Association and also the incorporator and registered agent for Citizens for a Fair Share, Inc., the second is another employee of the Florida Medical Association, the third is a well-known former legislator who was formerly the FMA s general counsel, and so on. The signatories indeed constitute an impressive list of lobbyists and lawyers for the medical tort reform effort in Florida. -2-
risprudence. Rule 1-2, The Rules Regulating The Florida Bar. Surely, there are more dispassionate and objective ways to study the issue of the ethics of a claimant s waiver of an attorney s fee limitation than the current proceeding on the Grimes Petition. 4. There can be no doubting the fact that the Grimes Petition is the continuation of a campaign to preclude medical malpractice claimants from obtaining qualified counsel of their choice. 4 After the constitutional amendment was approved, its advocates quickly recognized that a claimant could always waive the right to a limited attorneys fee if necessary to retain qualified counsel. The Florida Medical Association therefore tried (unsuccessfully) to have legislation adopted that would have declared any contingent fee contract at a rate above the Amendment Three level deemed null and void. See House Bill 1067 and Senate Bill 2124 of the 2005 Regular Session, both of which died in committee. When that effort failed, the campaign initiated the present proceeding. 5. The problem with the Grimes Petition is that Amendment Three was necessarily presented to the voters in terms of a medical claimant s rights. Rights 4 As stated by the St. Petersburg Times: The doctors, of course, aren t really fighting to make sure that victims of medical malpractice are well-compensated. Rather, they want to cut lawyers contingency fees in hopes that the lawyers will be dissuaded from ever trying such cases of malpractice. Note that their amendment does not restrict the amount that can be paid to lawyers who defend doctors. ST. PETERSBURG TIMES, Editorial, Oct. 17, 2004. -3-
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 Three and certainly has no right to preclude the claimant from making an informed and advantageous decision to waive his or her own constitutional rights. See, e.g., Shingleton v. Bussey, 223 So.2d 713, 718 (Fla. 1969) ( The insured may agree to conditions visa-vis the insurer to waive his own constitutional rights and curtail or postpone his remedies under the policy, but [t]he insured and the insurer cannot constitutionally contract away or postpone the speedy and adequate remedy the law affords a third party. ) 6. While this Court did not strike the ballot summary for Amendment Three as inadequate, it is also true that Justice Lewis s dissenting opinion accurately summarized the purpose and effect of the amendment: Clearly, the proposed amendment as written portrays that it will provide protection for citizens by ensuring that they will actually personally receive a deceptive amount of all money determined as damages in any medical liability action. However, the amendment actually has the singular and only purpose of impeding a citizen s access to the courts and that citizen s right and ability to secure representation for a redress of injuries. Its purpose is to restrict a citizen s right to retain counsel of his or her choice on terms chosen by the citizen and selected counsel and to thereby negatively impact the right of Florida citizens to seek redress for injuries sustained by medical malpractice. This is truly a wolf in sheep s clothing. Advisory Opinion to the Attorney General Re: The Medical Liability Claimant s Compensation Amendment, 880 So.2d 675, 683 (Fla. 2004, Lewis, J., dissenting). -4-
7. But to dress up this wolf in sheep s clothing, it was necessary for its proponents to couch it in terms of a claimant s right and indeed that is what the amendment says, and what the voters adopted: a right, on the part of the claimant (not the defendant) to receive a certain portion of the damages that he or she may receive by way of medical malpractice litigation. 5 To the extent that this language can be interpreted to mean that a claimant has a right to a reduced legal fee, then, just as with any constitutional right, this right can be waived. See, e.g., Bowles v. Singletary, 698 So.2d 1201 (Fla.1997) (a defendant may waive ex post facto protections as part of a plea agreement); Larson v. State, 572 So.2d 1368, 1371 (Fla.1991) (a defendant may waive personal constitutional rights as part of a voluntary plea agreement); Harris v. State, 438 So.2d 787 (Fla.1983), cert. denied, 466 U.S. 963 (1984) (a defendant may waive his statutory right to have the jury instructed on necessarily lesser included offenses). 6 5 One can easily foresee many questions for future courts to resolve regarding the meaning of the amendment s text. For example, how can one be guaranteed to receive a portion of that which he or she receives? Does the constitutional guarantee to a medical malpractice claimant to receive a certain percentage of his or her damages received overrule any statutory caps on damages to the contrary? Does the same constitutional guarantee eliminate any statutory or contractual claims of lien or subrogation that would have the effect of precluding a claimant from receiving the specified percentage of damages received? One thing is for certain the amendment uses no language that explicitly limits attorneys fees. 6 For example, if a defendant could assert her right to a speedy trial, but knew that exculpatory proof, perhaps DNA test results, would not be available until after her speedy trial date, would she be precluded from waiving her right to speedy trial? Of course not; such waivers happen by the hundreds or thousands every day. To hold otherwise would be to stand a right on its head and use it to punish the citizen who supposedly held that right. And such a subversion of a right is exactly what the petitioners here are seeking to accomplish. -5-
8. Of course, any waiver of a constitutional right to pay a limited attorney s fee must be both voluntary and informed. As summarized by the Fourth District in a forfeiture proceeding: Whether or not a waiver is valid is a question of fact. See Rutig v. Lake Jem Land Co., 155 Fla. 420, 20 So.2d 497, 499 (1945). While a party may waive any rights to which he is legally entitled, where there is doubt as to whether a constitutional right is waived, such doubt should be resolved in favor of the party in whom the right is vested. See Loiselle v. Gladfelter, 160 So.2d 740, 742 (Fla. 3d DCA 1964). In connection with other constitutional rights, the supreme court has developed a test for determining the validity of the waiver of a constitutional right: [t]o determine if a waiver is valid a court must make two inquiries. First, the court must determine if the waiver was voluntary in the sense that it was the product of free and deliberate choice rather than intimidation, coercion, or deception. Fare v. Michael C., 442 U.S. 707, 725, 99 S.Ct. 2560, 2572, 61 L.Ed.2d 197 (1979); see also State v. Mallory, 670 So.2d 103, 106 (Fla. 1st DCA 1996). Second, the court must determine whether the waiver was executed with a full awareness of the nature of the rights being abandoned and the consequences of their abandonment. Fare, 442 U.S. at 725, 99 S.Ct. at 2572; Mallory, 670 So.2d at 106. Jean-Louis v. Forfeiture of $203,595.00 in U.S. Currency, 767 So.2d 595, 597 (Fla. 4 th DCA 2000). The existing Rules of Professional Conduct contain a procedure for establishing the requirements for a voluntary, knowing waiver of fee caps. See Rule 4-1.5(f)(4)(B)(ii) of The Rules Regulating The Florida Bar. Assuming these criteria are met, there is no reason why a medical liability claimant could not waive his or her right to pay a limited attorney s fee. 9. What the Florida Medical Association really wanted to achieve was a constitutional right on the part of the defendant to have the medical malpractice -6-
plaintiff limited to a cheap lawyer but that is not what the FMA proposed and that is not what the voters approved. 7 10. As for the argument that it is unethical for an attorney to explain that he or she is must decline to undertake a particular representation unless it is for a fee that would require the client s waiver, there is a simple response: Rule 4-1.5(f)(4)(B)(ii) of The Rules Regulating The Florida Bar already recognizes that such circumstances will arise (even under the existing, more liberal fee guidelines), and specifies the ethical manner in which relief from the guidelines may be sought by the attorney and client. 8 11. The undersigned attorney therefore respectfully urges the Court to dismiss the petition. lines: 7 It would have been quite possible to draft such an amendment, perhaps along the following In any medical liability claim involving a contingency fee, the defendant health care provider shall have a right to require that the claimant be limited to an attorney willing to charge no more than 10%. Of course, the voters would very likely have rejected such an amendment. In order to gain passage of its amendment, the FMA proposed, and the voters approved, a right on the part of the claimant to receive a certain share of the claimant s total damages. And, because it is the claimant s right, the claimant (and only the claimant) can waive it, just as with any other constitutional right. 8 As to any perceived inadequacy in the existing waiver rule, or any abuses of the rule, such matters would be more appropriately addressed in proceedings directly focused on the procedure for approving fee waivers. -7-
CERTIFICATE OF SERVICE C. Rufus Pennington, III Florida Bar No. 329029 Margol & Pennington, P.A. One Independent Drive Suite 1700 Jacksonville, Florida 32202 (904) 355-7508 I HEREBY CERTIFY that file an original and nine (9) copies of this pleading have been forwarded to the Clerk for filing, along with a copy filed with this Court; and that a copy of the foregoing was furnished by U.S. Mail to John F. Harkness, Jr., General Counsel, The Florida Bar, 651 E. Jefferson Street, Tallahassee, Florida 32399-2300, and to Stephen H. Grimes, Counsel for Petitioners, Holland and Knight, LLP, Post Office Drawer 810, Tallahassee, Florida 32302-0810, this 9 th day of August, 2005. C. Rufus Pennington, III Florida Bar No. 329029-8-