Florida Trend | Florida's Business Authority

And The Fight Goes On

Lawyers and doctors expected Florida voters to pick a side as the two professions duked it out in their multimillion-dollar constitutional fight last November. Instead, the voters picked both sides -- approving constitutional amendments designed by each to rein in the other.
With both wins and losses on their slates, the Academy of Florida Trial Lawyers and the Florida Medical Association simultaneously moved to their respective backup plans: Making the offending amendments as toothless as possible.

In the doctors' case, voters had approved by wide margins a "three strikes" measure against doctors and an amendment opening access to hospital records of adverse incidents. But doctors had their losses cut by the Florida Legislature, which drafted two bills designed to undercut the effects of those amendments. The bills, signed by Gov. Jeb Bush in June, raise the standard of proof that applies against doctors in the three strikes measure and create strict limits on access to hospital records of adverse incidents.

Trial lawyers, meanwhile, have had an easy time getting around the FMA-sponsored amendment to reduce the percentage they could earn under contingency fee contracts in malpractice cases. Before the votes had even been counted, the trial lawyers' group pointed out that attorneys could get around the amendment by asking clients to waive any right to a bigger share. It was simply a matter of explaining that the attorney couldn't accept the case under the terms of the new amendment and getting clients to agree in writing to other terms.

Over the past six months, law firms across the state have developed waiver forms to accomplish just that. Neal Roth, a Miami plaintiffs lawyer and past president of the academy, says most clients haven't objected. "The people who come here are grateful that the contingency fee exists because 95% of them could not afford the cost to investigate and bring the case" without such an arrangement.

The form is designed to make sure that clients are making a "knowing, voluntary and informed decision," Roth says. "It's not rocket science."

Understandably, such practices have irritated the sponsors of the amendment, which was crafted to discourage malpractice lawsuits. Such waivers, says FMA associate general counsel Jeff Scott, "fly in the face of what the public has voted for."

The association has hired Holland & Knight partner and former state Supreme Court Justice Stephen Grimes to petition the Florida Supreme Court to change the Bar rules to forbid the practice. The petition deletes a section of Bar rules that allow lawyers to enter into contracts exceeding contingency rule guidelines and replaces it with language from the constitutional amendment. The petition doesn't explicitly say the change is aimed at prohibiting use of the waiver forms, but it clearly would accomplish the same thing, Roth says.

In June, the FMA lost its first attempt to line up support for the measure when the Florida Bar's governing board voted to reject the petition and to urge the Florida Supreme Court to reject it as "premature." The courts should interpret the amendment first, the Bar reasoned. Last month, the Florida Supreme Court began accepting comments on the proposed new rule.

Grimes would not discuss the effort, though he did acknowledge that "it will be controversial." But in his filing with the Bar, Grimes characterized the practice of negotiating with clients to get around the amendment as putting lawyers "in an unethical position."