The Florida Bar’s Rules Committee will propose additional changes to Bar Rules related to resolution of extraordinary liens in contingency matters

Hello and welcome to this Ethics Alert blog which will discuss the recent activity of The Florida Bar and the Board of Governors (BOG) related to the requirement that lawyers be required to resolve outstanding liens as part of the representation in contingency matters.  I previously blogged about the BOG’s approval of proposed revision to Bar Rule 4-1.5 to require lawyers to resolve the liens in my June 6, 2013 Ethics Alert.  The BOG initially approved the proposed rule revision at its meeting on May 31, 2013 and would add new subdivision (E) to Rule 4-1.5(f)(4) if approved by the Florida Supreme Court.

According to an article in the September 1, 2013 issue of The Florida Bar News, the Bar Rules Committee is revising the language of the revised rule which would allow the retention of another law firm to handle medical lien resolutions in contingency cases under certain circumstances.  The chair of the Bar Rules Committee told the Board of Governors (BOG) at its July 2013 meeting that questions came up after the BOG approved the amendments at its May 31, 2013 meeting, including when an outside attorney could be retained by the client to handle lien resolutions.

The chair stated that “(i)t was recognized that there were some extraordinary things that came into play with Medicaid and Medicare, and sometimes the lawyer is in over his head, and there are professionals who do that sort of thing.”  The change would clarify that the original lawyer may not receive any additional fee for handling lien resolutions under the original contingency fee agreement and also cannot split fees or receive any extra payment if lien resolutions are turned over to another lawyer.

The BOG had previously proposed an amendment to the rule allowing the retention of attorneys to handle medical and other liens under a reverse contingency fee with the consent of the client; however, the Florida Supreme Court rejected that rule amendment and opined that it is the responsibility of the lawyer as part of the original contingency contract to resolve the liens. The new proposed rule would permit the liens to be handled by another lawyer in extraordinary circumstances since the client would benefit by having those liens resolved by a lawyer concentrating in that area.  The revised rule will be placed on the BOG’s October 2013 meeting agenda for review and potential approval.

The current proposed rule revision language is as follows:

                        RULE 4-1.5 FEES AND COSTS FOR LEGAL SERVICES

4-1.5(f)(4)

 

1.  a lawyer in a personal injury or wrongful death case charging a contingent fee must provide ordinary lien resolution as part of the lawyer’s representation under the fee contract may not charge any additional fee to the client for providing such services, if all fees for the personal injury matter plus lien resolution exceed the contingent fee schedule;

 

2.  extraordinary services for subrogation and lien resolution may be referred to another only with the client’s informed consent, that additional fees by the other lawyer must comply with all provisions of the fee rule and,

 

3.  the lawyer providing the extraordinary subrogation and lien resolution services may not divide fees with the lawyer handling the personal injury or wrongful death claim. The comment explains what lien resolution services are required as part of the original fee contract and what extraordinary services include. 

Bottom line:  As I previously stated, it is the general practice of lawyers in Florida to resolve client liens on behalf of the client as part of the representation; therefore, this revision will not generally impact lawyers in most cases; however, if there are extraordinary circumstances, the proposed rule revision will detail the circumstances which would permit the client to retain separate counsel to handle and resolve those liens and provide guidance regarding those circumstances.

I will keep you posted and be careful out there!

Disclaimer:  this e-mail does not contain any legal advice and the comments herein should not be relied upon by anyone who reads it.

Joseph A. Corsmeier, Esquire

Law Office of Joseph A. Corsmeier, P.A.

2454 McMullen Booth Road, Suite 431

Clearwater, Florida 33759

Office (727) 799-1688

Fax     (727) 799-1670

jcorsmeier@jac-law.com

www.jac-law.com

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About jcorsmeier

Joseph A. Corsmeier is an “AV” rated attorney practicing in Clearwater, Florida. He concentrates his practice primarily in the areas of defense of attorney disciplinary matters before The Florida Bar, attorney admission matters before the Florida Board of Bar Examiners, and professional license and disciplinary matters before the Boards of the State of Florida. He provides expert analysis and opinion on conflict of interest and other attorney disqualification and legal malpractice issues and he testified as an expert in the Florida courts. He served as an Assistant State Attorney in the Sixth Judicial Circuit from 1986 to 1990 where he prosecuted felonies exclusively from June 1987, and as Bar Counsel for The Florida Bar’s Department of Lawyer Regulation from 1990 to 1998. He also practices in the areas of estate planning and Medicaid qualification, workers’ compensation, and labor law. Mr. Corsmeier is the author of numerous articles for various bar publications, has spoken at numerous local and statewide seminars on various topics, including ethics and professionalism, and was an instructor of legal ethics for paralegals at Rollins College until the Tampa campus closed. He received his undergraduate degree from Florida State University and his J.D. from Mercer University. He is admitted to practice in all Florida Courts, the Supreme Court of the United States, the United States Court of Appeals for the Eleventh Circuit, and the Middle District of Florida. He is a member of The Florida Bar, American Bar Association, the Association of Professional Responsibility Lawyers, and the Clearwater and St. Petersburg Bar Associations.
This entry was posted in Attorney ethics, corsmeier, Florida Bar Rules, Florida Bar Rules contingent fee agreements, Florida Lawyer comprehensive advertising rule revisions, joe corsmeier, joseph corsmeier, Lawyer contingency agreements, Lawyer Ethics, Lawyer fee agreements, Lawyer lien resolution, Lawyer written fee agreements and tagged , , , , , , , . Bookmark the permalink.

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