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The Florida Supreme Court has halted the first legal effort to put teeth into Amendment 3, handing a temporary setback to the measure’s supporters in the health care industry. All seven justices concurred in the dismissal of a case this week in which the amendment’s sponsors asked the court to draw up new rules of professional conduct that would enshrine caps on trial lawyer contingency fees in medical malpractice cases. Those fees would be limited to 30 percent of the first $250,000 in damages and 10 percent of all damages in excess of $250,000. The amendment was spearheaded by the Florida Medical Association, which touted it as a cure for an alleged rash of frivolous medical negligence lawsuits brought by patients and lawyers in search of jackpot judgments. The amendment passed with the support of 63.5 percent of Florida voters. The lawsuit had been initiated by Tampa attorney Bill Wagner, a former president of the Academy of Florida Trial Lawyers. On his own initiative, just days after passage of the amendment, he petitioned the court to clarify whether the amendment was retroactive. In an unusual move, he filed directly with the Supreme Court, rather than first filing in a circuit court. “The amendment is silent on its intended effect upon contingent fee contracts existing between clients and their attorneys,” he wrote in the petition. “This silence produces uncertainty.” But Wagner inadvertently opened a potential Pandora’s box, presenting the FMA with a target of opportunity. Acting as Citizens for a Fair Share Inc., represented by former Justice Stephen Grimes, now of Holland & Knight in Tallahassee, the FMA filed a response to Wagner’s petition which specified that the amendment is not retroactive. But Grimes took an additional step and asked the court to make the reduced contingency fees part of new rules of professional conduct — on an expedited basis, leaving The Florida Bar out of the process. Normally, the court directs the Bar to devise the rules, which are ultimately promulgated with the court’s blessing. “It was an unexpected opportunity and we took advantage of it,” said FMA general counsel John Knight. “We knew it was a long shot.” NO EXPLANATION FOR RULING The justices concurred in dismissing the case for lack of jurisdiction. The one-sentence order did not explain the court’s reasoning. For virtually all purposes, the Bar is a creature of the court, subject to its control. Fort Lauderdale attorney Bruce Rogow, an expert on constitutional law, said Wagner’s petition was simply premature. “Unless you’re the governor,” he said, “you can’t go directly to the court for an advisory opinion.” Wagner said he acted to forestall the potential for conflict between lawyers — who would insist that the new caps don’t apply to existing contracts — and their clients, who would insist that their contracts be redrawn so that their fees are reduced. “As a result of such conflict it may well be ethically necessary for the attorney to withdraw from further representation of the client,” Wagner wrote. “For those cases in litigation or on appeal, the withdrawal of the client’s current attorney, the subsequent substitution of new counsel or client involvement pro se could create unacceptable burdens upon the administration of justice in the courts.” Wagner asked the court for “at least preliminary relief” and to set “an early and expedited” schedule for argument on his petition. He also asked that, if the court ruled that the amendment is, in fact, retroactive, the justices should consider the necessity for “emergency special procedures” to govern court proceedings, attorneys’ professional responsibility and pre-suit requirements. In its response filed Nov. 12, Citizens for a Fair Share stated that Wagner made “a compelling case” that the amendment should not be construed as retroactive. And it assured the court that the amendment was “never intended” to apply retroactively. Grimes noted that while Wagner’s petition “may appear to be unorthodox � it is warranted by the exigencies of the situation.” Then Grimes went a step further. “For the same reason,” he wrote, “it is imperative that the Florida Rules of Professional Conduct be promptly amended to conform with the mandate of Amendment 3.” Grimes’ choice of words drew swift objections from Wagner and from the trial lawyer-backed group Floridians for Patient Protection. In comments filed Nov. 22 on behalf of FPP, Jacksonville attorney Tracy Carlin argued that the court’s authority to write rules of professional conduct is not the proper means to resolve questions about Amendment 3. Instead, she wrote, interpretation of the amendment “should be litigated through the normal course” in the circuit and appellate courts. In his reply Dec. 2, Wagner wrote that he “objects to the use of the term ‘promptly,’ particularly if it is intended to suggest that the court, without further input, attempt to craft an amendment hurriedly and without full consideration and input by all interested parties and, in particular, without input from The Florida Bar.” In an interview, Knight said the FMA prefers not to see the amendment implemented through the accumulation of case law from decisions in individual court cases. The FMA has not yet decided what step to take next. But Knight noted that the Bar has formal procedures for amending its code of conduct. “At the moment, I can’t think of another option,” he said.

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