| Florida Bar recognizes specialists may be required | | | | own must also comply with Rule 4-1.5(f)." |
| for contingency fee rule as it relates to medical | | | | Gary Blankenship, Senior Editor of The Florida Bar |
| liens | | | | News reported that the proposed comment for |
| The Florida Bar is currently studying the attorney | | | | the new rule clarifies several related issues, |
| contingency fee rule to address the hiring of | | | | including: |
| special attorneys to resolve subrogation and | | | | Lawyers taking the personal injury or wrongful |
| medical lien issues related to personal injury cases. | | | | death case must set out in the contract whether |
| The issue has been presented to the Board of | | | | subrogation and lien resolution issues will be |
| Governors and passage will effect MSP | | | | handled as part of the contingency contract. |
| compliance in Florida. | | | | As part of any contingency contract, the |
| A special committee reported to the board at its | | | | attorney has the obligation "to make reasonable |
| May 28, 2010 meeting on the suggested | | | | efforts to ascertain the existence of any medical |
| amendments to Rule 4-1.5 and the proposal will | | | | liens and subrogation claims, advise the client of |
| come back to the board for a vote at its July 23 | | | | their existence, make reasonable efforts to |
| meeting. | | | | negotiate liens that are negotiable, and disburse |
| The issue before the committee addresses the | | | | the amounts to lien-holders and subrogation |
| question whether referring medical liens to a | | | | claimants" as agreed by the client and third |
| second attorney, who would be paid on a reverse | | | | parties. |
| contingency fee, would violate the contingency | | | | The original attorney must determine if the |
| fee cap in the rule itself. The Board Review | | | | additional services needed constitute the practice |
| Committee on Professional Ethics opined that if | | | | of law, and if they do, must not refer the matter |
| the total fees paid to both attorneys exceeded | | | | "to a non-lawyer or someone not authorized to |
| the limits in the rule, a problem is evident. | | | | provide the services. |
| However, they recognized that medical lien | | | | Determine Services |
| resolution has become an increasingly intricate | | | | Lawyers may also provide other ancillary services, |
| area in tort cases. Bringing in an expert could save | | | | such as estate planning, bankruptcy, financial |
| the client money, even if the contingency fee | | | | planning, public benefit planning, and similar work |
| limits are exceeded. Clearly, the ramifications of | | | | which are not part of the contingency contract. |
| the new rule may have far reaching effects on | | | | According to the proposed comment, "The |
| Medicare Secondary Payer issues including lien | | | | personal injury lawyers should clearly indicate in |
| research, negotiation and resolution. Jay Cohen, | | | | the lawyer's contract that the lawyer does not |
| appointed by the Board Review Committee on | | | | intend to undertake such ancillary services, if the |
| Professional Ethics to examine the issue, told the | | | | lawyer does not intend to do so." |
| board the panel was recommending adding a new | | | | For purposes of MSP Compliance, the new rule |
| subsection to the rule, as 4-1.5(f)(4)(E). | | | | seems to require attorneys to set out, in writing, |
| The new proposed subsection (E) reads: | | | | whether they will handle Medicare Lien issues as |
| "The lawyers shall include in the contract an | | | | part of their contract with the client and, more |
| explanation of the scope of any subrogation or | | | | importantly, requires attorneys to investigate the |
| lien resolution services the lawyer will undertake at | | | | existence of liens including Medicare's conditional |
| the conclusion of the primary matter. The lawyer | | | | payments. |
| shall not charge additional fees for handling lien | | | | Florida, then, is moving solidly in the direction of |
| resolution services if those additional fees, when | | | | placing the onus on the attorney for the plaintiff in |
| combined with the lawyer's fees for handling the | | | | tort cases to protect Medicare's interests directly, |
| primary claim, would exceed the contingent fee | | | | unless the client is advised regarding a referral to |
| schedule set forth in this subdivision." | | | | another attorney or provider. With adoption of |
| If extraordinary subrogation or lien resolution | | | | the rule, plaintiff's attorneys would truly seem to |
| services are handled by others outside the | | | | be unable to stick their heads in the sand |
| primary lawyer's firm who will charge additional | | | | regarding MSP compliance in tort cases. |
| attorney's fees or costs to the client, these | | | | Unwillingness or uncertainty with respect to |
| services shall only be provided after obtaining the | | | | Medicare's lien interests will now be codified in the |
| client's informed written consent to the additional | | | | attorney's fee statute itself, requiring the plaintiff |
| fees or costs. Any additional fees or costs | | | | to acknowledge lien rights and to make some |
| charged by the other lawyers involved in the | | | | arrangements to address and resolve them. Truly, |
| subrogation or lien resolution services must | | | | the Florida Bar's express concerns regarding lien |
| separately comply with the provision of Rules | | | | practice places MSP Compliance squarely at issue. |
| 4-1.5(a) through 4-1.5(e), and if the fees are | | | | The July 23 vote will indicate whether the bar is |
| contingent on the outcome of the lien resolution, | | | | willing to take the lead on what is sure to be a |
| the lien or subrogation resolution fees on their | | | | critical issue in Florida tort law. |