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The Florida Supreme Court expressed strong skepticism last week about the effort to stop medical malpractice plaintiffs from waiving the voter-approved cap on attorney contingency fees. But the justices strongly suggested that they do see the need for a new rule to ensure that plaintiffs fully understand the right they are waiving. On Nov. 30, the justices were asked to weigh whether plaintiffs lawyers in malpractice cases should be allowed to sidestep the tight fee cap required by Amendment 3, which voters passed in November 2004. Since the constitutional amendment passed, many plaintiffs lawyers have asked their clients to sign waivers allowing the lawyers to take a bigger fee. During an hourlong oral argument by attorneys representing the Florida Medical Association, The Florida Bar, the Academy of Florida Trial Lawyers, and Gov. Jeb Bush, a majority of justices made it clear that they believed that constitutional rights such as this can be waived. “I cannot think of any constitutional right that cannot be waived right now,” Justice Raoul G. Cantero III said. “Certainly the other rights that are at least as important as the rights in this amendment, even assuming that we call it a right, the right to jury trial can be waived, the right to an attorney, the right to remain silent. All those seem to me at least as important if not more important than this right. Why should we not provide a waiver provision for this?” But several justices also questioned why the Bar had not attempted to craft its own rules to respond to Amendment 3, since the amendment conflicts with a longstanding Supreme Court rule that sets a higher cap on contingency fees. “Right now, the problem is that the rule that exists does conflict with the amendment,” Chief Justice Barbara J. Pariente said during the oral arguments. “For that reason alone it seems the court has an obligation to put the rule into conformity.” Amendment 3 limits plaintiff lawyers to receiving no more than 30 percent of the first $250,000 awarded in a case and no more than 10 percent of anything beyond that amount. That would mean that in a $1 million verdict, a plaintiffs attorney could receive only $150,000 in fees, compared with $400,000 under current rules. In a $3 million verdict, the attorney could receive $350,000, compared with $900,000 under current rules. Under current Supreme Court rules, which are among the toughest in the country, contingency fees in all types of cases in Florida are limited to 40 percent of any recovery up to $1 million, plus 30 percent of any portion between $1 million and $2 million, plus 20 percent of any portion exceeding $2 million. Those limits were set in 1987. Pariente and Justice Charles T. Wells hinted that the high court on its own may order an interim rule to establish a uniform informed consent procedure ensuring that malpractice plaintiffs understand that they are waiving their rights. Florida’s doctors and lawyers have engaged in a long-running battle over medical malpractice that has played out in the halls of the state Capitol, in the voting booth and now in the courts. A year ago, voters approved a trio of constitutional amendments, including one pushed by the Florida Medical Association and two pushed by the Academy of Florida Trial Lawyers. The two sides spent tens of millions to persuade voters to approve their initiatives. But plaintiff lawyers soon found a way around the strict fee cap contained in Amendment 3 by asking their clients to voluntarily waive their right to the higher percentage of damages. The alternative, the plaintiffs lawyers say, is not to take medical malpractice cases, because they can’t afford to handle such complex, costly lawsuits for the much lower fees they would be able to collect under Amendment 3. That led a group of 54 lawyers — most with ties to doctors, insurers, and health care providers — to employ a rarely used procedure to petition the high court last summer to impose the fee caps on lawyers as a requirement of the Rules of Professional Conduct. FMA general counsel John Knight said in an interview after the oral arguments that the lawyers petitioned the Supreme Court because physicians believed the Bar wouldn’t be objective after it openly opposed Amendment 3. “So it seemed to us a pretty fruitless waste of time to go through the Bar to ask them to amend the rule,” Knight said. “And we felt the court would be much more objective than the Bar and we felt it would be the more appropriate form for us to follow.” But during the oral arguments, that reasoning did not go over well with several justices. They questioned whether the attorneys who signed the petition were being paid by the FMA or any of their clients to push the petition. Stephen Grimes, a Holland & Knight partner and former justice who spearheaded the petition and was representing the FMA in the oral arguments, expressed irritation at that line of questioning. “I would suggest there’s nothing immoral or illegal about it,” he told the justices. “Frankly, I’m offended by the suggestion.” Grimes said he was sure that those who signed the petition “philosophically” believed that attorneys should follow the mandate of Amendment 3. Grimes, however, did not dispute the fact that those who signed the petition either represented the FMA, insurance companies, or hospitals or worked for law firms that represent those entities. Justice Harry Lee Anstead said that created an appearance of a conflict-of-interest among those pushing the rule change. “It is clearly at least there is an appearance that they are not acting as officers of the court that believe in the policy but that they are acting on behalf of the people who pay their income,” Anstead said. The justices also did not seem to respond well to arguments put forth by Grimes and Raquel A. “Rocky” Rodriguez, the general counsel for Gov. Bush, that attorneys should not be allowed to ask their clients to waive the fees imposed by Amendment 3. Grimes contended that there was a greater public purpose behind Amendment 3 than simply giving malpractice plaintiffs the right to pocket a larger share of lawsuit damages. He said the amendment was designed to help discourage “frivolous” lawsuits against doctors and to bring down the cost of medicine. But Chief Justice Pariente said that argument contradicted previous arguments by proponents of Amendment 3 — as well as the plain language of the amendment — that its main purpose was to ensure that injured patients receive a larger share of damage awards. “I don’t think the proponents of the amendment can have it both ways,” she said. “That is, to put it in the voters’ hands, saying that it was going to give the claimant more money and now turn it around and give it other purposes. I think that is somewhat disingenuous.” Grimes’ argument Wednesday also appeared to support the argument of opponents that the real purpose of Amendment 3 was to discourage talented and experienced plaintiff lawyers from handling malpractice cases. Rodriguez — who stated that she was appearing on her own behalf although she signed briefs in the case as general counsel for Bush — said she doubted that voters approved Amendment 3 because they thought they were going to be victims of medical malpractice. Instead, she suggested, voters thought plaintiff attorneys received too big a share of awards. Grimes suggested at one point that if any constitutional right can be waived, the Supreme Court by allowing fee cap waivers could be setting up a situation where businesses could take advantage of workers by asking them to waive their rights to the new statewide minimum wage requirement, which also was approved by voters last year. The justices also posed sharp questions to the lawyer representing The Florida Bar. On several occasions, they pressed Barry Richard, a shareholder at Greenberg Traurig in Tallahassee, on why the Bar has not proposed new rules to implement Amendment 3. “The reason, it seems to me, we are here, is because The Florida Bar did not file a petition,” Wells said. “Isn’t it the obligation of The Florida Bar in its disciplinary rules to set out for lawyers what their ethical responsibility are in respect to contingency fees? The Florida Bar hasn’t done that.” Richard argued that it was “premature” for the justices to even consider a new contingency fees rule because a lawsuit has been filed challenging the constitutionality of Amendment 3. He also argued that the Supreme Court would be exceeding its authority if it passed a rule that limited the rights of people who weren’t lawyers to waive the contingency fee caps, because the court’s rule-making authority applies only to courts and Bar members. Justice Peggy A. Quince, however, asked why the court should not take the position that Amendment 3 is valid and proceed with a new rule. Several justices suggested that they worried that lawyers, who have a conflict of interest in getting their clients to waive their rights, were not advising their clients in a uniform fashion. After the oral arguments, Florida Medical Association officers appeared resigned to a ruling in which waivers of the fee cap would still be allowed. They said they hoped the justices at least would require that any waivers be overseen by a court. That’s how it works now when a client wants to pay a fee in excess of the current contingency fee limits. “The idea of signing a waiver, just a piece of paper in a lawyer’s office, to me would be bogus and it would be a charade of what the constitutional amendment is all about and what people voted for,” FMA chief executive office Sandra Mortham said in an interview after the oral arguments.

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