Can a workers' compensation lawyer withdraw before an appeal because the appellate fee is too low?

Plain-English summary

A lawyer who represented workmen's compensation claimants explained that under prevailing practice the Full Commission awarded a maximum contingent fee of $50 for any appellate review, which he considered grossly inadequate. He asked whether he could ethically withdraw from cases where appellate review was or should be sought solely because the fee awarded to him would be inadequate.

The committee concluded that such a withdrawal would violate Canon 44, which provided that the right to withdraw arises from good cause, that even the client's consent is not always sufficient, and that a lawyer should not abandon the unfinished task to the client's detriment except for reasons of honor or self-respect. It noted that F.S.A. 440.34(3) made it unlawful to charge compensation claimants any fee not approved by the Industrial Commission or a court, so attorneys are bound to accept only the fees awarded; withdrawal on the sole ground that those fees are inadequate would not be for reasons of honor or self-respect. The committee added that a lawyer may instead undertake representation only before the Judge of Industrial Claims, but only where he has a clear understanding with the client that he will not continue if appellate proceedings are required, and makes full disclosure of that limited representation to the Judge of Industrial Claims before any trial-level fees are awarded.

Currency note

This opinion was issued in 1969, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 44 on withdrawal from employment. Withdrawal and declining or terminating representation are now addressed by Rule 4-1.16. It also relied on the workers' compensation fee statute then codified at F.S.A. 440.34(3), which has since been amended. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Can a lawyer drop a comp case before appeal because the appeal fee is too small?

A: Under this opinion, no, not on that ground alone. The committee held that withdrawing solely because the awarded appellate fee was inadequate would not be for reasons of honor or self-respect under Canon 44.

Q: Could the lawyer agree to handle only the trial-level proceeding?

A: Yes, the committee saw no impropriety in limiting the representation to proceedings before the Judge of Industrial Claims, provided the lawyer had a clear understanding with the client about that limit and disclosed it to the judge before any trial-level fees were awarded.

Background and rules framework

The opinion applied the former Canon 44 on a lawyer's right to withdraw from employment. Withdrawal and the limits on declining or terminating representation are now addressed by Rule 4-1.16 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.16. The opinion also turned on the workers' compensation fee-approval statute then at F.S.A. 440.34(3).

Citations and references

Rules of Professional Conduct:

• Canon 44 [Code of Professional Responsibility; withdrawal now in Rule 4-1.16]

Statutes:

• F.S.A. 440.34(3) (then making it unlawful to charge a compensation claimant a fee not approved by the Industrial Commission or a court)

Other opinions cited:

• New York City Opinion 626

See also

No sibling opinions yet indexed.

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-69-9/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-69-9-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 69-9
March 24, 1969
Advisory ethics opinions are not binding.
It would be unethical for a workmen's compensation claimant's attorney to withdraw when appeal is appropriate on the sole ground that the appellate compensation would be inadequate, unless he had established an understanding with the client that he would not handle any appeal and unless full disclosure of the limited representation is made to the judge of industrial claims before fees are awarded at the trial level.
Canon: 44
Opinion: NY City 626
Committeeman Daniels stated the opinion of the committee:
A member of The Florida Bar advises that he represents workmen's compensation claimants and that under prevailing practice a contingent fee of $50 is the maximum awarded by the Full Commission for any type of appellate review. We are advised that this fee is grossly inadequate and are asked if a lawyer may ethically withdraw from compensation cases where appellate review is or should be sought on the sole ground that inadequate compensation will be awarded him.
We conclude that such a withdrawal would violate Canon 44, which provides in pertinent part:
The right of an attorney or counsel to withdraw from employment, once assumed, arises from good cause. Even the desire or consent of the client is not always sufficient. The lawyer should not throw up the unfinished task to the detriment of his client except for reasons of honor or self-respect. . . .
Attorneys representing workmen's compensation claimants are on notice that F.S.A. 440.34(3) makes it unlawful to charge such claimants any fee not approved by either the Industrial Commission or a court of competent jurisdiction. Attorneys accepting such employment are, accordingly, legally and ethically bound to accept only the fees so awarded. Any withdrawal from the representation on the sole ground that the fees awarded are inadequate would not be "for reasons of honor or self-respect" within the meaning of Canon 44. Compare: New York City Opinion 626.
The Committee assumes for present purposes that the inquiring attorney has reference to cases in which he has been retained to handle a claimant's case to completion. Should the attorney wish to undertake a claimant's representation only before the Judge of Industrial Claims, we see no ethical impropriety in doing so, so long as (a) the attorney has a clear understanding with his client that he will not continue the representation if appellate proceedings are required or taken; and (b) a full disclosure of the limited representation is made to the Judge of Industrial Claims before any fees are awarded on the trial level.