Board files contingency fee waiver proposal; the rule would allow, but not require, a judge to review the waiver.

Clients could, in writing and after full disclosure, waive their constitutional right to limit attorneys' contingency fees in medical malpractice cases under a proposed Bar rule being submitted to the Supreme Court. The rule would allow, but not require, a judge to review the waiver.

At its Tallahassee meeting February 17, the Bar Board of Governors, responding to an order from the high court, approved the proposed contingency fee rule drafted by a special committee. The rule now has been sent to the court for its consideration. (See Notice, page 30)

The court ordered the Bar to draft the rule after it held oral arguments November 30 on a petition from 54 Bar members, led by former Chief Justice Stephen Grimes. Those Bar members asked the court to amend the Bar's contingency fee rule to reflect Amendment 3 approved by voters in 2004.

That amendment limits contingency fees in medical malpractice cases to 30 percent of the first $250,000 awarded, exclusive of costs, and to 10 percent on higher awards. Some attorneys responded by getting their clients to waive their constitutional right to the lower fee.

The court ordered the Bar to prepare a rule that would address the waiver, the necessity for fully informing clients of their rights under Amendment 3, their right to consult with another attorney, and a requirement that the waiver be in writing. The court also asked the Bar to consider whether a judge should review the waiver.

Under current Bar rules, exceeding the contingency fee limit requires a judge's review and approval with a certification the client otherwise would be unable to obtain his or her counsel of choice.

"The [proposed] rule requires that the client initial that he or she understands the implication of signing the form and in addition the form requires that the waiver be under oath," said former Supreme Court Chief Justice Major B. Harding, who chaired the Bar's Special Committee on Amendment 3.

The committee also voted to require a judicial review only if the proposed fee exceeds the presumed maximum fees in the current rules. "Some of the members of the committee in discussion felt the current requirement of requiring the court to approve fees beyond the rule is an exercise in futility" because the waiver is almost always approved, Harding said. Some committee members wanted to recommend the Bar look at doing away with the existing waiver requirement, but Harding said that was beyond the scope of the panel.

William Hahn...