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In last November’s elections, Florida’s lawyers, doctors and insurers engaged in high-stakes politics that resulted in voters approving three constitutional amendments: two regulating physicians and one creating de facto caps on plaintiffs’ attorney fees in medical malpractice suits. Plaintiffs’ lawyers have circumvented the amendment by having their clients waive their new constitutional right to a greater percentage of their malpractice awards. However, the Florida Medical Association has done some maneuvering of its own, orchestrating the filing of a petition to have the rules of the Florida Bar changed to prohibit the practice, a move that shifts the battle from the ballot box to the Florida Supreme Court. In re Amendment to the Rules Regulating the Florida Bar, No. SC05-1150. The language of the attorney fee amendment, known as Amendment 3, did not actually cap attorney fees specifically, yet it did mandate that clients receive minimum percentages of contingency-fee awards, thus creating de facto fee caps. While Florida already had limits on contingency fees, Amendment 3 provided that claimants were entitled to receive no less than 70% of the first $250,000 in damages awarded, and no less than 90% of award amounts in excess of $250,000. Under Florida Bar rules, lawyers and clients have been free to contract around the existing caps with court approval. Fearing that such circumvention would take the teeth out of Amendment 3, the physicians’ trade association, the Florida Medical Association (FMA), organized a group of attorneys who recently petitioned the Florida Supreme Court to amend Rule 4-1.5 of Florida’s Rules of Professional Conduct to prohibit waivers of the cap. The court is accepting comments until Sept. 30 before issuing any decision. As of Aug. 2, 51 individuals and organizations had commented. “I’m proud to be the first on the list,” said John Knight, the Florida Medical Association’s general counsel, referring to the list of 55 lawyers who signed the petition. Rejecting the argument that prohibiting fee cap waivers would preclude plaintiffs’ attorneys from taking cases unless they were virtually certain they would prevail, Knight said, “If they don’t win, it’s probably not a case they should have brought in the first place.” Not surprisingly, the plaintiffs’ bar sees it differently. “They’re trying to put us out of business,” said Jonathan Friedland, president of the Dade County Trial Lawyers Association (DCTLA), a Miami-based plaintiffs’ attorney organization that filed a comment opposing the change. “These cases cost hundreds of thousands of dollars just to get to trial,” Friedland said, adding, “With that cap, you couldn’t take these cases. It really hurts consumers.” In their petition, the FMA-backed lawyers argue that permitting plaintiffs’ lawyers to have clients waive the fee cap would “not only put the lawyer in an unethical position, but fly in the face of the constitutional mandate” of the amendment. The DCTLA counters in its comment that the proposed rule change “tramples upon a very basic right under the Florida and federal constitutions: the right of citizens to knowingly waive one constitutional right in order to more fully exercise another right more valued by the holder of both those rights.” The Florida Bar, represented by Barry Richard of the Tallahassee, Fla., office of Greenberg Traurig, also opposes the rule-change petition, which he calls “premature.” Richard said that the issues surrounding Amendment 3 should be litigated rather than decided in a rulemaking proceeding with limited due process. Although he feels that the new rule may be bad public policy, Joseph Little, a law professor at the University of Florida Levin College of Law, said that the court should adopt it, adding that he believes that fee contracts circumventing the constitution violate even current bar rules. “The rule may well do more harm than good,” Little said, explaining, “Many needy victims of malpractice may never find a lawyer and may never have access to the courts.”

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