If a workers' compensation claimant fires his lawyer before the case ends, can the lawyer petition the Industrial Commission for the fee he believes he earned?

Plain-English summary

A lawyer asked for guidance on the proper course when an attorney representing a claimant before the Florida Industrial Commission in a workmen's compensation proceeding under Chapter 440, Florida Statutes, is discharged by the client before the proceeding concludes. Under Chapter 440.34, an attorney may not charge the claimant a fee for such services; instead, fees are paid by the carrier to counsel for prevailing claimants in the circumstances set out in the act. The question was how a discharged lawyer who had performed services could present any fee claim he might have against the carrier.

The committee, without deciding as a matter of law whether the attorney had a fee claim, saw no ethical impropriety in the discharged attorney presenting an appropriate petition to the Florida Industrial Commission, under the rules governing its proceedings, setting forth such claim as he in good faith entertained. It said appropriate notice should be given not only to all parties the rules required, but also, if not otherwise required by the commission's rules of practice, to the former client. The committee declined to comment on what the carrier and the deputy commissioner should do, as those questions were beyond its jurisdiction.

Currency note

This opinion was issued in August 1966, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 14 on a lawyer's fee claims against a client. Lawyer fees are now governed by Rule 4-1.5 of the Rules Regulating The Florida Bar (Model Rule 1.5), and workers' compensation attorney's fees by the current version of Chapter 440, Florida Statutes, which has been amended substantially since 1966. Subsequent rule and statutory amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules and statute before relying on any specific requirement mentioned here.

Common questions

Q: Could the fired comp lawyer pursue the fee he believed he had earned?

A: The committee saw no ethical impropriety in his presenting an appropriate petition to the Florida Industrial Commission for any fee he in good faith contended he was owed, under the rules governing the proceeding.

Q: Did the committee decide whether he actually had a fee claim?

A: No. It expressly did not decide as a matter of law whether an attorney may or may not have a claim for a fee; it addressed only the ethical propriety of presenting the petition.

Q: Did the former client have to be notified?

A: The committee said appropriate notice should be given to all parties the rules required and, if not already required by the commission's rules, also to the former client.

Background and rules framework

The opinion applied the former Canon 14, which counseled that controversies with clients over compensation should be avoided and pursued only to prevent injustice. Lawyer fees are now addressed by Rule 4-1.5 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.5. Because workers' compensation fees were paid by the carrier rather than charged to the claimant under Chapter 440.34, Florida Statutes, the committee framed the question as how a discharged lawyer could properly present a fee claim through the commission.

Citations and references

Rules of Professional Conduct:

• Canon 14 [Canons of Professional Ethics; see current Rule 4-1.5]

Statutes:

• Chapter 440, Florida Statutes (workmen's compensation)
• Section 440.34, Florida Statutes (attorney's fees paid by carrier)

See also

• FL Bar Ethics Op. 69-9: Withdrawing Over Low Appeal Fees
• FL Bar Ethics Op. 67-1: Contingent Fees in Condemnation

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-66-42/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-66-42.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 66-42
August 15, 1966
Advisory ethics opinions are not binding.
An attorney representing a claimant in a workmen's compensation proceeding who is discharged by his client prior to the conclusion of the proceeding may present for consideration by the Florida Industrial Commission, in accordance with such rules as may govern such proceedings, an appropriate petition setting forth such claim for fees as he may in good faith contend he possesses. Appropriate notice of such claim should be given to the former client.
Canon: 14
Statutes: F.S. Ch. 440, F.S. 440.34
Chairman MacDonald stated the opinion of the committee:
Concerned with a situation recently encountered in a workmen's compensation proceeding wherein he was engaged as counsel, a member of The Florida Bar has asked the Committee for ethical guidance in the handling of a similar situation when it arises in the future. Although not immediately involving definitely proposed future conduct of a member of The Florida Bar, we believe that a situation of this type is fairly within the jurisdiction of this Committee established by the Board of Governors. Necessarily, however, we must observe that our comments are not intended to pass upon the propriety of any situation which might have arisen in the past, but rather are intended as advisory with reference to future actions of the concerned attorney.
Briefly stated, we are asked to designate the proper course of action for a member of The Florida Bar engaged in the representation of a claimant before the Florida Industrial Commission in a workmen's compensation proceeding pursuant to the provisions of Chapter 440, Florida Statutes, in a situation wherein such attorney is discharged by his client prior to the conclusion of the proceeding. Under the provisions of Chapter 440.34, Florida Statutes, an attorney may not charge a claimant client a fee for services in such proceedings; instead, the effect of the statute is such that fees are paid by the carrier to counsel for claimants prevailing on their claims under the circumstances delineated in the act. Accordingly, in a situation wherein the lawyer has performed services but has been discharged prior to conclusion of the proceeding, a question arises as to the proper method by which he may present for determination such claim, if any, which he may have for payment of a fee by the carrier.
Without at all deciding as a matter of law whether an attorney may or may not have a claim for a fee, we see no ethical impropriety in the discharged attorney presenting for consideration by the Florida Industrial Commission, in accordance with the rules governing its proceedings, an appropriate petition setting forth such claim as he may, in good faith, entertain. It is our belief that appropriate notice should be given not only to all parties to whom notice is required by such rules, but, if not required by the rules of practice of the commission, also to the former client.
Although we are requested to comment upon what action should be followed by the carrier and the deputy commissioner we must refrain from commenting upon these aspects of the matter as they are beyond our jurisdiction as delineated by the Board of Governors.