Lawyers' fees.

Abraham Lincoln is reputed to have said: "A lawyer's time is his stock in trade."

That statement is no longer true in Florida. In one area of law this year, and maybe many areas of law to come in the future, the prevailing lawyer will have to be paid solely based upon a legislatively set percentage of the value of his client's case. So said the First DCA in Wood v. Florida Rock, 31 Fla. L. Weekly D1458. But the First DCA certified as a question of great public importance: "Do the amended provisions of [section] 440.34(1), clearly and unambiguously establish the percentage fee formula provided therein as the sole standard for determining the reasonableness of an attorney's fee to be awarded a claimant?"

In an order entered July 12, four justices of our Supreme Court, by denying review of the certified question, answered it in the affirmative and relinquished to the legislature the power to regulate attorney fees without court input. Up to July 12, it has always been the rule that the legislature may set a guideline for determining the amount of a reasonable fee, but it was always up to the courts to increase or decrease the fee based upon the factors contained in Rule 4-1.5(b). No more. The legislature may now impose a set fee schedule in virtually any area of law in which a statute allows for the award of prevailing party fees. The courts may not interfere, no matter how ridiculous the fee amount is.

In the workers' comp law involved in this case the "client" injured worker may not "waive" the fee "schedule as is possible in medical malpractice cases because the law makes it a crime for an attorney to try to collect a higher-than-fee-schedule fee and makes approval of the fee by a judge of compensation claims mandatory.

So the "sole" standard for the determination of a reasonable fee for an injured worker's attorney is a percentage (roughly 10 percent) of the "benefits achieved." This is without regard to the amount of time spent, the difficulty of the issue, the contingent nature of the relationship, or the tenacity of the defense. As Judge Barfield said in his concurring opinion, "The validity of the statute which severely impairs, if not eliminates, the ability of claimants to obtain the assistance of counsel, has not been raised." Validity could have been raised before the Supreme Court, had the court chosen to give the parties an opportunity to brief and argue it before the court. That won't happen now. The answer has been...