          Supreme Court of Florida
                                  ____________

                                  No. SC16-104
                                  ____________


IN RE: AMENDMENTS TO RULE REGULATING THE FLORIDA BAR 4-
         1.5—FEES AND COSTS FOR LEGAL SERVICES.

                                 [October 6, 2016]

PER CURIAM.

      This matter is before the Court on the petition of The Florida Bar (Bar)

proposing that the Court amend the Rules Regulating the Florida Bar (Bar Rules).

We have jurisdiction. See art. V, § 15, Fla. Const.

                                BACKGROUND

      Previously, in In re Amendments to the Rules Regulating the Florida Bar

(Biannual Report), 101 So. 3d 807 (Fla. 2012), the Bar proposed an amendment to

Bar Rule 4-1.5 (Fees and Costs for Legal Services) in order to address subrogation

and lien resolution services in personal injury and wrongful death cases involving a

contingent fee. The amendments proposed in that case would have provided: (1)

that a lawyer handling a personal injury or wrongful death case charging a

contingent fee must include in the fee contract information about the scope of the
lawyer’s representation relating to subrogation and lien resolution services; (2) that

the lawyer shall not charge any additional fee to the client for providing

subrogation and lien resolution services if the total fee for the primary personal

injury matter together with the lien resolution matter would exceed the contingent

fee schedule; (3) that extraordinary services for subrogation and lien resolution

may be “handled by others outside the primary lawyer’s firm who will charge

additional fees or costs” only with the client’s informed consent; (4) that additional

fees or costs charged by the lawyer providing the extraordinary subrogation and

lien resolution services must comply with all provisions of the fee rule; and (5) that

the lawyer providing the extraordinary subrogation and lien resolution services

may not divide fees with the lawyer handling the primary personal injury or

wrongful death claim. We declined to adopt this amendment. In so doing, we

clarified “that lawyers representing a client in a personal injury, wrongful death, or

other such case charging a contingent fee should, as part of the representation, also

represent the client in resolving medical liens and subrogation claims related to the

underlying case.” Id. at 808.

      Subsequently, in In re Amendments to Rule Regulating the Florida Bar 4-

1.5—Fees and Costs for Legal Services, 175 So. 3d 276 (Fla. 2015) (Case No.

SC14-2112), among other proposed amendments, the Bar again proposed

amendments to rule 4-1.5 to address fees for subrogation and lien resolution.


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However, after oral argument in the case, which was held on May 5, 2015, the Bar

filed a motion for partial stay, seeking a stay of the Court’s consideration of the

proposal and an opportunity to submit an alternative proposal. That motion was

granted.

      The Bar has now filed a new petition with a revised proposal.1 Pursuant to

Rule Regulating the Florida Bar 1-12.1(g), the Bar gave formal notice of its intent

to file this proposal. The notice directed interested parties to file their comments

directly with the Court. Seven comments were filed. The Florida Bar Elder Law

Section and the law firm of Staunton & Faglie, PL, filed comments in support; the

remaining comments were in opposition. The Bar filed a response to the

comments. Oral argument was heard on June 8, 2016. After considering the Bar’s

petition, the comments, and the issues discussed at oral argument, we decline to

adopt the proposed amendments.




       1. The alternative proposal was drafted to address concerns raised by the
Court during oral argument in case number SC14-2112, including: (1) providing
definitions of extraordinary versus ordinary lien resolution services; (2) requiring a
disclosure at the outset of representation if the primary lawyer in the underlying
personal injury matter will not provide extraordinary lien resolution services; (3)
defining the fee that may be charged for extraordinary lien resolution services if a
contingent fee is charged; and (4) requiring court approval of the extraordinary lien
resolution fee if it, together with the personal injury fee, exceeded the contingent
fee schedule set forth in rule 4-1.5.


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                          THE FLORIDA BAR’S PROPOSAL

      The amendments proposed by the Bar in this case provide that the “primary

lawyer” in a personal injury or wrongful death case charging a contingent fee: (1)

must provide ordinary lien resolution as part of the lawyer’s representation of the

client under the fee contract; (2) must disclose to the client at the outset of

representation whether the matter may involve extraordinary lien and subrogation

services requiring additional fees; and (3) may not charge additional fees to the

client for providing any lien and subrogation resolution services if those fees,

combined with the lawyer’s fee for handling the underlying personal injury matter,

exceed the contingent fee schedule. The proposal further provides: (1) that an

“extraordinary lien and subrogation lawyer” may charge a fee for extraordinary

lien and subrogation services that, when combined with the fees for the underlying

personal injury matter, exceeds the contingent fee schedule, but only if the services

are in the client’s best interests, the client consents in writing, and only with prior

court approval; (2) fees charged by the extraordinary lien and subrogation lawyer

must comply with all provisions of the fee rule; (3) the extraordinary lien and

subrogation lawyer may not divide fees with the primary lawyer handling the

personal injury or wrongful death claim; and (4) the court reviewing a fee

agreement for extraordinary lien resolution services may adjust the fee of the

primary lawyer. Finally, the proposal defines ordinary versus extraordinary lien


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and subrogation services, and within a comment to rule 4-1.5, explains what lien

resolution services are required as part of the original fee contract and what

extraordinary services entail.

      We commend the Bar for its diligent and conscientious efforts in presenting

the proposed amendments addressing these matters to the Court. However, upon

careful consideration, we decline to adopt the proposed amendments to rule 4-1.5

at this time. On balance, we wish to reemphasize that lawyers representing clients

in personal injury, wrongful death, or other cases where there is a contingent fee

should, as part of the representation, also represent those clients in resolving

medical liens and subrogation claims related to the underlying case. This should

be done at no additional charge to the client beyond the maximum contingency fee,

even if the attorney outsources this work to another attorney or non-attorney.

Although it may be true that, given the increased complexity of modern litigation,

there will be some cases where the amount of work required to resolve a lien is

more than initially anticipated, the notion of the percentage fee contract

contemplates that there will be some cases that are profitable for the lawyer

handling the claim and others that are unprofitable. That risk and reward is built

into the contingency fee contract. If the circumstances of a particular case are such

that the fee generated under the contingency fee agreement is expected to be

insufficient for the work of resolving any outstanding lien, the attorney and client


                                         -5-
can seek leave of court pursuant to rule 4-1.5(f)(4)(B)(ii) of the Rules Regulating

the Florida Bar to obtain an increased fee appropriate for the circumstances of the

specific case.

                                  CONCLUSION

      Based on the considerations discussed above, we hereby decline to adopt the

proposed amendments to Rule Regulating the Florida Bar 4-1.5 (Fees and Costs for

Legal Services).

      It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY,
JJ., concur.
CANADY, J., dissents.

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND
IF FILED, DETERMINED.

Original Proceeding – Rules Regulating the Florida Bar

John F. Harkness, Jr., Executive Director, William J. Schifino, Jr., President,
Ramón A. Abadin, Past-President, Michael Jerome Higer, President-elect
Designate, Jay Cohen, Chair, Special Committee on Lien Resolution, Lori S.
Holcomb, DEUP Division Director, and Elizabeth Clark Tarbert, Ethics Counsel,
The Florida Bar, Tallahassee, Florida,

      for Petitioner

Joseph H. Saunders of Saunders & Walker, P.A., Pinellas Park, Florida; Theodore
Babbitt of the Law Offices of Babbitt & Johnson, West Palm Beach, Florida; John
William Staunton of Staunton & Faglie, PL, Clearwater, Florida; Floyd Benjamin
Faglie of Staunton & Faglie, PL, Monticello, Florida; Major Best Harding and
Elizabeth D. Barron of Ausley McMullen, P.A., Tallahassee, Florida; David
Anthony Hook, Chair, Elder Law Section of The Florida Bar, The Hook Law
Group, New Port Richey, Florida; Cary Leigh Moss, President, Academy of

                                        -6-
Florida Elder Law Attorneys, Sawyer & Sawyer, Orlando, Florida; Daniel Joseph
Alvarez, Synergy Lien Resolution Services, Tampa, Florida; Sylvius H. von
Saucken, The Garretson Resolution Group, Inc., Charlotte, North Carolina,

      Responding with Comments




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