IN THE SUPREME COURT OF FLORIDA CASE NO. SC05-1150 In Re: Petition to Amend Rules Regulating The Florida Bar Rule 4-1.5(f)(4)(B) of the Rules of Professional Conduct. / COMMENTS OF SCOTT E. PERWIN, FLORIDA BAR NO. 710083, IN OPPOSITION TO THE PROPOSED AMENDMENT Scott E. Perwin respectfully submits the following comments in opposition to the Petition to Amend the Rules Regulating The Florida Bar Rule 4-1.5(f)(4)(B) of the Rules of Professional Conduct. 1. I am a member in good standing of The Florida Bar and a shareholder in the firm of Kenny Nachwalter P.A. in Miami, Florida. My practice consists primarily of antitrust and related commercial litigation, representing both plaintiffs and defendants. I do not litigate plaintiff s medical malpractice cases and would not be directly affected by adoption of the proposed Amendment. However, I am strongly opposed to the proposed Amendment for the reasons outlined below. 2. Under Article V, 15 of the Florida Constitution, this Court has exclusive jurisdiction to regulate the professional conduct of members of The Florida Bar. In submitting their Petition, Petitioners have assumed that this Court retains its normal exclusive jurisdiction to promulgate rules of professional conduct relating to contingency fees in medical malpractice litigation, notwithstanding the adoption of Amendment 3. Because Amendment 3 is not itself a rule of professional ethics and does not address the reasonableness of such fees, the Petition proceeds on the assumption that Amendment 3 does not deprive the Court of rule-making authority to determine what
constitutes an excessive contingency fee in medical malpractice cases. These comments proceed on the same assumption. 1 3. While Petitioners assume that Amendment 3 is not a rule of ethics and does not divest the Court of constitutional authority to promulgate such rules, they apparently contend that it dictates the content of the Court s rules. This contention is without merit. Amendment 3 itself says nothing about fees or about ethics. By its terms, Amendment 3 simply creates a constitutional right in a group of clients and does not disturb or address the ordinary presumptions that (a) the client s right can be waived and (b) it is not unethical for a lawyer to request such a waiver. 2 Petitioners unstated view that the Court retains jurisdiction to regulate but has lost its discretion to decide how to regulate should be rejected. 4. Rather than being seen as an implementation of Amendment 3, the proposed Amendment should be seen for what it is a proposal to change the excessiveness standard that has governed Florida attorneys since 1987 and replace it with a far more onerous standard that applies only to plaintiff s medical malpractice attorneys. Given that Petitioners have invoked the Court s rule-making authority to promulgate rules of professional ethics, their proposal should be accepted or rejected based on its merit as a rule of professional ethics. When considered in this light, it is clear that the proposed Amendment has no merit at all. 1 Other comments on the Petition may argue that Amendment 3 has usurped or altered the Court s rule-making authority with respect to the subject matter covered by Amendment 3, or at least that the Court should refrain from any rule-making in this area until the courts interpret Amendment 3 in the ordinary course of judicial decision-making. This comment takes no position on those issues but simply addresses the proposed Amendment in the context in which it is offered as a rule of professional ethics. 2 Contrary to the Petition, it is not unethical to ask a client to waive a constitutional right simply because a waiver is in the attorney s economic interest. For example, criminal defendants have a constitutional right of self-representation under most circumstances, see Faretta v. California, 422 U.S. 806 (1975), but criminal defense lawyers advise their clients to waive that right every time such a lawyer is retained. 2
5. First, there is no basis for subjecting medical malpractice lawyers to more stringent contingency-fee standards than those imposed on other personal-injury lawyers under Rule 4-1.5(f)(4). Viewed as a matter of ethics, there is no conceivable reason why a Florida lawyer who brings a products liability case for an injured client should be ethically permitted to charge a higher contingency fee than a lawyer who brings a medical malpractice case for the same client and obtains compensation for the same injury. The legal nature of the client s claim bears no relationship to the considerations that have historically governed the issue of reasonableness in the context of disciplinary proceedings. See Rule 4-1.5(b) (listing factors to be considered in determining whether a fee is reasonable or excessive). This unjustified ethical distinction between medical malpractice attorneys and other personal-injury attorneys is a powerful and sufficient reason to reject the proposed Amendment. 6. Second, the proposed Amendment is bad policy and would have a profoundly adverse impact on the availability of legal representation in this State. As the Court is certainly aware, there is a highly competitive market for plaintiff s medical malpractice attorneys in Florida. A client looking for such a lawyer has thousands of capable and experienced practitioners to choose from. The Court can take judicial notice that, in this highly competitive market, the prevailing price for legal representation in a medical malpractice case is a contingency fee in the range of 30-40%. This prevailing market price is within the limits currently allowed under Rule 4-1.5 but substantially above the level that would be permitted under the proposed Amendment. The proposed Amendment is thus a price control imposed on a small class of sellers of highly specialized professional services. Price controls cause predictable market dislocations. In this case, as the drafters of the proposed Amendment are well aware, the inevitable effect of the proposed Amendment will be to cause plaintiff s medical malpractice attorneys to leave their field and move into other fields where they can charge a fee that is commensurate with their skills and sufficient to cover the risk and expense of the litigation. The result will be a shortage (if not the elimination) of plaintiff s medical malpractice attorneys in Florida. Ironically, the advocates of tort reform have long argued that restrictions on physicians income allegedly caused by the tort system will force physicians to leave their practices and result in a shortage of qualified physicians in the State. They can hardly deny that the same economic principles apply to 3
lawyers as well. Unable to rid the State of tort law, they have undertaken to rid the State of tort lawyers. Respectfully submitted, s/ Scott E. Perwin Scott E. Perwin Fla. Bar No. 710083 KENNY NACHWALTER, P.A. 1100 Miami Center 201 S. Biscayne Boulevard Miami, Florida 33131-4327 Telephone: (305) 373-1000 Facsimile: (305) 372-1861 4
Certificate of Service I hereby certify that a true and correct copy of the foregoing was served by First Class U.S. Mail on July 22, 2005, upon John Harkness, Esq., General Counsel, The Florida Bar, 651 East Jefferson Street, Tallahassee, FL 32399, and Stephen Grimes, Esq., Counsel for Petitioners, Holland & Knight LLP, P.O. Box 810, Tallahassee, FL 32302. 227112.1 s/ Scott E. Perwin Scott E. Perwin 5