MARSHAL: PLEASE RISE. HEAR YE. HEAR YE. HEAR YE. THE SUPREME COURT OF THE GREAT STATE OF FLORIDA IS NOW SESSION. ALL WHO HAVE CAUSE TO PLEA, GIVE ATTENTION AND YOU SHALL BE HEARD. GOD SAVE THESE UNITED STATES, THE GREAT STATE OF FLORIDA AND THIS HONORABLE COURT. LADIES AND GENTLEMEN, THE FLORIDA SUPREME COURT. PLEASE BE SEATED.
CHIEF JUSTICE: GOOD MORNING, LADIES AND GENTLEMEN. WELCOME TO THE FLORIDA SUPREME COURT. THE FIRST CASE ON THIS MORNING'S {DWOK}ET IS THE AMENDMENT TO THE RULES REGULATING THE FLORIDA BAR. I WANT TO MAKE SURE I HAVE GOT A LINEUP HERE. YOU LOOK A LITTLE BIT LONELY OVER THERE. YOU WILL BE ARGUING, FIRST, FOR 25 MINUTES?
WE WOULD LIKE TO RESERVE FOR REBUTTAL.
CHIEF JUSTICE: OKAY. MR. GRIMES, YOU MAY PROCEED.
MAY IT PLEASE THE COURT. MY NAME IS STEPHEN GRIMES REPRESENTING THE PETITIONERS. WHEN AMENDMENT 3 WAS BEFORE THE COURT WITH PURPOSES OF BEING ON THE BALLOT THE PREVIOUS TIME, THE COURT STATED IN ITS OPINION, WE FIND ITS LANGUAGE TO BE STRAIGHTFORWARD AS TO WHO IT AFFECTS AND WHO IS INVOLVED IN ITS IMPLEMENTATION, AND THE COURT WENT ON TO SAY THAT, AT THE VERY LEAST, AND I QUOTE, THE AMENDMENT WOULD FUNCTIONALLY OVERRIDE OR INTERFERE WITH THE RULES OF PROFESSIONAL CONDUCT, AS THEY RELATE TO CONTRACTS BETWEEN ATTORNEYS AND THEIR CLIENTS. AND THAT IS WHY WE ARE HERE, TO AMEND THE RULES, TO IMPLEMENT THE REQUIREMENTS OF THE AMENDMENT. NOW, THE OVER ARCHING ARGUMENT THAT THE OPPONENTS HAVE TO THIS PROPOSED RULE, IS THAT THEY ASSERT THAT IT WOULD PREVENT SOME PERSONS WITH MERITORIOUS MEDICAL LIABILITY CLAIMS FROM OBTAINING COMPETENT COUNSEL TO REPRESENT THEM. WELL, AT THE OUTSET, THIS ARGUMENT IS PURELY SPECULATIVE, AND IN VIEW OF THE AMENDMENT, ACTUALLY IT IS ESSENTIALLY IRRELEVANT. THE PEOPLE OF FLORIDA HAVE DETERMINED OR CONCLUDED THAT 150,000 DOLLARS ATTORNEYS FEES IS SUFFICIENT FOR A $1 MILLION RECOVERY IN A MEDICAL LIABILITY CASE.
LET ME ASK YOU ABOUT THE WAIVER PROVISION. RIGHT NOW IN THE RULES, WE DO HAVE PROVISION FOR WAIVER OF THE CONTINGENCY FEE, AND IN, I CANNOT THINK OF ANY CONSTITUTIONAL RIGHT THAT CANNOT BE WAIVED RIGHT NOW. CERTAINLY THE OTHER RIGHTS THAT ARE AT LEAST AS IMPORTANT AS THE RIGHT IN THIS AMENDMENT, EVEN ASSUMING THAT WE CALL IT A RIGHT, THE RIGHT TO JURY TRIAL CAN BE WAIVED, THE RIGHT TO ATTORNEY, THE RIGHT TO REMAIN SILENT. ALL THOSE SEEM TO ME AT LEAST AS IMPORTANT IF NOT MORE IMPORTANT, THAN RIGHT. WHY SHOULD WE NOT PROVIDE A WAIVER PROVISION FOR THIS?
BECAUSE OF THE DIFFERENCE BETWEEN THOSE RIGHTS AND THIS PARTICULAR RIGHT. THOSE RIGHTS, WHILE CERTAINLY ARE EQUALLY OR MORE IMPORTANT TO THE INDIVIDUAL PERSONAL RIGHTS, THIS PARTICULAR PROVISION HAS A PUBLIC PURPOSE, OVER AND ABOVE THE PERSONAL RIGHT THAT COULD BE WAIVED IN THOSE OTHER CONSTITUTIONAL RIGHTS THAT YOU OUTLINE.
CHIEF JUSTICE: MR. GRIMES, ON THAT ISSUE, WE ARE, SET HERE WITH THE PLAIN LANGUAGE OF THE CONSTITUTIONAL LANGUAGE, AND I HAVE NOT HEARD THE PURPOSE BEFORE. WHAT IS IT RIGHT NOW THAT WOULD SAY WHAT THE PURPOSE WAS FOR THE AMENDMENT, AND SECONDLY, ISN'T IT CLEARLY STATED TO BE A CLAIMANT'S RIGHT, STATED AS AN ENTITLEMENT FOR THE CLAIMANT? SO FOLLOWING UP ON THE SECOND, WHAT JUSTICE CANTERO HAS SAID, WHY ISN'T THAT A RIGHT THAT A CLAIMANT, THEN, CAN WAIVE?
WELL, WE SUBMIT THAT THIS DOES HAVE A CLEAR PUBLIC PURPOSE. THE ARGUMENT, AS YOU POINTED OUT IN YOUR CONCURRING OPINION, AND IF I WILL, YOU SAID THE TASK OF INFORMING THE PUBLIC OF THE MOTIVATIONS BEHIND THE AMENDMENT IS POTENTIAL PRACTICAL EFFECTS THAT MUST FALL ON THE PROPONENTS AND THE OPPONENTS OF THE MEASURE. THIS WAS ARGUED PRO AND CON. THE, OBVIOUSLY THE PROPONENTS OF THE AMENDMENT WERE SAYING THEY WOULD CUT DOWN MEDICAL COSTS. IT WOULD AVOID FRIVOLOUS LAWSUITS. IT WOULD KEEP THE FLOW OF THE HIGH SPECIALIST ATTORNEYS HAVING TO LEAVE THE HIGH SPECIALIST POSITIONS FROM HAVING TO LEAVE THE STATE. ALL OF THIS WAS ARGUED TO AND PRO AND CON BEFORE THE VOTERS, WHEN THE AMENDMENT WENT ON THE BALLOT! AS SOME OF CASES THAT WERE CITED IN THOSE COMMENTS, SOME 17 STATES HAVE CAPS.
WOULDN'T YOU HAVE TO AGREE THAT THE AVERAGE PERSON READING THAT CONSTITUTIONAL AMENDMENT, WHEN IT TALKS ABOUT A PERSON BEING ENTITLED TO A CERTAIN AMOUNT OF ANY KIND OF MEDICAL SETTLEMENT OR AWARD THAT THEY GET, REALLY, WOULD NOT LOOK AT THIS IN TERMS OF CUTTING DOWN LAWSUITS AND OTHER LAUDIBLE CLAIMS THAT MIGHT GO WITH THIS. THEY WERE ACTUALLY LOOKING AT THIS, IN TERMS OF THEIR RIGHT TO WHATEVER MONIES WERE AVAILABLE, WHEN THEY HAD THESE MEDICAL SUITS. WOULDN'T YOU HAVE TO AGREE WITH THAT?
WITH ALL DUE RESPECT, I WOULD NOT AGREE WITH THAT NECESSARILY, YOUR HONOR. I THINK MANY PEOPLE VOTED FOR THIS AMENDMENT BECAUSE THEY FELT THAT THERE WERE TOO MANY FRIVOLOUS MEDICAL MALPRACTICE LAWSUITS THAT WERE DRIVING DOCTORS OUT OF THE STATE, RAISING THEIR INSURANCE PREMIUMS SO HIGH, THEY HAD TO QUIT PRACTICING. OF COURSE WE CANNOT TELL FOR CERTAIN WHAT WAS IN THE MINDS OF THE VOTERS, BUT I SUGGEST RESPECTFULLY, THAT MANY PEOPLE VOTED FOR THIS AMENDMENT, FOR THE REASONS THAT MANY OTHER STATES HAVE OUTLINED AS WHY AN AMENDMENT SUCH AS THIS IS APPROPRIATE.
THAT THE AMENDMENT, ITSELF, DOES IT HAVE ANY OF THAT LANGUAGE IN IT?
NO. NO. THE AMENDMENT DOES NOT. THE AMENDMENT SIMPLY PROVIDES ATTORNEYS FEES SHOULD BE REDUCED.
HOW COULD THEY GET A BENEFIT, UNLESS THERE WAS A LAWSUIT? IN OTHER WORDS, CLEARLY THERE HAS TO BE A LAWSUIT AND A CLAIM, AND IN FACT, A CLAIM THAT IS SUCCESSFUL, BEFORE THE CLAIMANTS IN A LAWSUIT GET ANY BENEFITS. I AM A LITTLE CONCERNED ABOUT THE WAY THAT YOU TALK ABOUT THE ADOPTION OF THIS, WHEN IT SEEMS TO BE OF BENEFIT OR ENTITLED TO A CLAIMANT IN A LAWSUIT, AND YET WHETHER OR NOT YOU ANSWERED TO JUSTICE QUINCE'S QUESTION ABOUT WHETHER WE SHOULDN'T VIEW IT FROM THE STANDPOINT OF CREATING THAT BENEFIT FROM THE STANDPOINT THAT IT HAS TO BE A SUCCESSFUL LAWSUIT, THAT IS A PRESUMPTION, IS IT NOT? IN OTHER WORDS, THAT IS THE, THAT IS WHAT THE ENTITLEMENT THAT IS BEING GIVEN THROUGH THIS AMENDMENT, IS AN ENTITLEMENT THAT PRESUMES YOU HAVE A LAWSUIT, AND A CLAIM.
YES, BUT I SUGGEST THAT THE PUBLIC PURPOSE IS TO, IN ADDITION TO GIVING THE CLAIMANT MORE REVENUE AS A RESULT OF THE LAWSUIT, IS, ALSO, TO REDUCE THE COSTS OF MEDICINE, TO AVOID ALL OF THE PREVENTATIVE MEDICINE THAT GOES ON TO, BY DOCTORS, TO AVOID THE POSSIBLE LIABILITY, AND THIS IS WHY THIS IS DIFFERENT THAN THE ORDINARY CONSTITUTIONAL RIGHT THAT SOMEONE THAT HAS THEIR OWN PERSONAL INTEREST AT HEART, CAN WAIVE!
CHIEF JUSTICE: AGAIN, AND YOU KNOW THAT WE NEED TO STICK TO RECORDS, AND WHEN WE LOOK AT THIS I ASK YOU AGAIN, WHERE IN THE RECORD IN THIS CASE, IN TERMS OF WHAT THE COURT IS LOOKING AT WITH THE PROPOSED RULE AMENDMENT, IS THE INFORMATION THAT YOU ARE STATING?
IT IS NOT IN THE RECORD, IN THE SENSE THAT IT IS BEING IN THE AMENDMENT ITSELF OR IN THE SUMMARY, IF THAT IS THE ANSWER TO YOUR QUESTION.
CHIEF JUSTICE: I THINK IT IS. I REALLY DO THINK WE NEED TO, JUST STICKING TO THE ISSUE ABOUT, I THINK YOU ANSWERED THE BFEST YOU CAN WHY IT COULDN'T BE WAIVED. YOU ARE SAYING IT CAN'T BE WAIVED BECAUSE OTHER PEOPLE'S INTERESTS ARE AT STAKE, SUCH AS DOCTORS AND THE PUBLIC, AND THAT IS WHY IT IS NOT REALLY, YOU ARE CLAIMING IT IS NOT A PERSONAL RIGHT TO THE CLAIMANT THAT WAS ENVISIONED IN THIS AMENDMENT. THAT IS YOUR ARGUMENT.
YES, AND I MIGHT SAY, IN SOME OF THE OTHER CASES, THAT HAVE BEEN CITED WHERE OTHER STATES HAVE PLACED CAPS ON IT AND THEY HAVE BEEN CHALLENGED AND THAT, IN SOME OF THE CASES, I RECALL THE NEWTON VERSUS COX, I THINK, IS A CASE IN WHICH THE COURT SAID, WELL, THERE IS NO LEGISLATIVE HISTORY HERE, TO SUPPORT THIS, BUT IT IS OBVIOUS THAT THIS, THERE IS A PUBLIC PURPOSE INVOLVED, THE DIFFERENT THINGS THAT I OUTLINED, TO REDUCE MEDICAL COSTS AND HAS A RATIONAL BASIS FOR THAT, AND THERE WASN'T ANY LEGISLATIVE HISTORY TO SUPPORT IT, BUT AS THE COURT KNOWS, AND AS THE, WHAT THE PEOPLE VOTED FOR, I AM SURE THERE WERE MANY REASONS WHY THEY VOTED FOR IT. SOME OF THEM, CERTAINLY, WERE BECAUSE THEY THOUGHT THAT THEY WANTED TO GET THE CLAIMANT MORE MONEY, BUT THE FACT REMAINS THAT THE ARGUMENTS AND THE COURT HAS RECOGNIZED THE SIGNIFICANCE OF THE FACT THAT IT IS UP TO THE PROPONENTS AND THE OPPONENTS TO OUTLINE THE PRACTICAL EFFECTS OF THE AMENDMENT AND WHY IT IS THERE, AND, OF COURSE, THIS WAS ARGUED AD INFINITUM BEFORE THE PUBLIC AND THROUGH TELEVISION AND WHATEVER, AND I SUBMIT THAT THERE IS A PUBLIC PURPOSE TO IT, AND THAT IS WHY IT IS DIFFERENT THAN THE ORDINARY CONSTITUTIONAL RIGHT.
COULDN'T YOU SAY THE SAME THING, AT LEAST ARGUE THE SAME THING ABOUT SOME OF OUR OTHER CONSTITUTIONAL RIGHTS? FOR EXAMPLE THE RIGHT TO A JURY TRIAL, YOU CAN ARGUE IT IS NOT ONLY THE DEFENDANT'S RIGHT TO BE TRIED BY A JURY OF HIS PEERS, BUT IT IS, ALSO, THE COMMUNITY'S RIGHT TO BE INVOLVED IN DETERMINING WHETHER A DEFENDANT IS INNOCENT OR GUILTY.
WELL, I THINK THAT IS MORE ATTENUATED. I UNDERSTAND WHAT YOU ARE SAYING, YOUR HONOR, BUT I SUBMIT THAT CLEARLY THIS SITUATION IS DIFFERENT. BEYOND THAT, IN ADDITION, YOU HAD A SITUATION HERE, WHERE IF YOU HAVE THE RIGHT TO WAIVE THAT RIGHT, YOU HAVE THE ATTORNEY, THEN, IN THE POSTURE OF NEGOTIATING, IF YOU WILL, WITH THE CLIENT, AND THE POSSIBILITY AT LEAST OF OVERREACHING IS CERTAINLY SUBSTANTIAL UNDER THESE CIRCUMSTANCES, BECAUSE IT IS FOR THE BENEFIT OF THE LAWYER AS CONTRASTED TO WHEN THE LAWYER IS ADVISING THE CLIENT WHETHER HE WANTS TO RAISE HIS RIGHTS AND THIS AND THAT.
ISN'T IT POSSIBLE TO TAKE CARE OF THAT PROBLEM, BY HAVING A PROVISION IN THE RULE WHICH WOULD REQUIRE THERE TO BE A MEANINGFUL HEARING BEFORE A CIRCUIT JUDGE, ON THE ISSUE? AND THAT WOULD ALLOW THERE TO BE A BALANCING OF THE CONSTITUTIONAL PROVISION. BUT, ALSO, THERE COULD BE A DETERMINATION MADE BY A CIRCUIT JUDGE AS TO WHETHER THE INDIVIDUAL TRULY UNDERSTANDS THAT THEY ARE WAIVING A CONSTITUTIONAL RIGHT. IF WE SET UP A RULE LIKE THAT, WHY COULDN'T THE WAIVER PROVISION WORK? I UNDERSTAND THE ARGUMENT ABOUT THE SELF-SERVING NATURE OF THE WAIVER, BUT --
CLEARLY THE AMENDMENT DOESN'T CONTEMPLATE IT. IT DOESN'T SAY ANYTHING ABOUT THAT, THAT IT COULD BE WAIVED, BUT BEYOND THAT --
WHAT CONSTITUTIONAL RIGHT DOES SAY THAT YOU CAN OR CAN'T WAIVE IT? IS THERE ANYTHING IN THE U.S. CONSTITUTIONAL BILL OF RIGHTS OR IN ANY OF OURS THAT, SAY, ABSENT A WAIVER, YOU HAVE THE RIGHT TO A JURY TRIAL OR ABSENT A WAIVER, YOU HAVE THE RIGHT TO REMAIN SILENT, BUT WE HAVE ALL INTERPRETED THAT AS TO BE WAIVEABLE, CORRECT?
YES, SIR. YOUR HONOR, I SUGGEST THAT THAT WOULD NOT TOTALLY SOLVE THE PROBLEM. I UNDERSTAND WHAT YOU ARE SAYING. BUT IT SEEMS TO ME THAT IT STILL DEFEATS THE THRUST OF THE AMENDMENT. I SUGGEST THAT THE CLEAR IMPACT OF THE AMENDMENT, THE PEOPLE WOULD HAVE NOT NECESSARILY VOTED FOR IT, IF THEY KNEW THAT IT COULD BE WAIVED.
CHIEF JUSTICE: YOU KNOW, I GUESS WE ARE GOING TO GO ROUND AND ROUND, ABOUT THIS, BECAUSE THE PROPONENTS OF THIS AMENDMENT VERY SPECIFICALLY STATED THIS AS BEING AN ENTITLEMENT TO NO LESS THAN 70 PERCENT OF THE FIRST $250,000. AND IF THE INTENT WAS TO LIMIT MALPRACTICE RECOVERIES OR TO KEEP DOCTORS IN FLORIDA, THEN SOMEHOW IT WOULD HAVE BEEN STATED, AND I DON'T THINK THE PROPONENTS OF THE AMENDMENT CAN HAVE IT BOTH WAYS, THAT IS TO PUT IT IN THE VOTERS' HANDS, SAYING THAT IT WAS GOING TO GIVE THE CLAIMANT MORE MONEY AND NOW TURN AROUND AND GIVE IT THESE OTHER PURPOSES. I THINK THAT IS SOMEWHAT DISINGENUOUS.
I WOULD HAVE TO SAY --
CHIEF JUSTICE: IT SAYS THAT YOU ARE HERE PRO SE, BUT YOU HAVE BEEN PAID BY THE FLORIDA MEDICAL ASSOCIATION.
YES.
CHIEF JUSTICE: WHAT IS YOUR RESPONSE TO THE OPPONENTS' ARGUMENT THAT THIS IS REALLY A PERVERSION OF THE PURPOSE OF THIS IDEA THAT THIS 50 MEMBERS CAN PETITION FOR A RULE CHANGE, THAT, REALLY, HERE WE ARE HERE BECAUSE YOU ARE HERE ON BEHALF OF THE FLORIDA MEDICAL ASSOCIATION.
YOUR HONOR, THERE IS ONLY TWO-WAYS THAT WE CAN GET THE RULE, TO IMPLEMENT THE CONSTITUTIONAL PROVISION. THE ONLY WAY TO BRING IT BEFORE THE COURT IS EITHER TO GO THROUGH THE FLORIDA BAR. OBVIOUSLY THAT IS NOT GOING TO WORK. THIS IS THE ONLY OTHER WAY IT CAN BE HERE. FIFTY LAWYERS SIGNED THIS. THE AMENDMENT --
CHIEF JUSTICE: IN TERMS OF MOTIVATION, IF YOU WERE HERE ON BEHALF OF INJURED PLAINTIFFS WHO FELT THAT THEY HAD BEEN TALKED INTO SORT OF HAVING THEIR RIGHTS WAIVED, WE WOULD PERHAPS BE LOOKING AT THIS IN A DIFFERENT LIGHT, BUT DON'T WE HAVE TO LOOK AT IT AT THIS POINT, FROM THE, THAT THIS IS REALLY, THAT THE FLORIDA MEDICAL ASSOCIATION HAS A VERY DIFFERENT PURPOSE THAN THE COURT WOULD HAVE, IN TERMS OF LOOKING AT HOW THIS AMENDMENT SHOULD BE IMPLEMENTED?
YOUR HONOR, 54 LAWYERS SIGNED THIS, AND I ASSUME THEY DID NOT SIGN IT, OTHER THAN THE FACT THAT THEY BELIEVE THAT, BECAUSE AMENDMENT 3 REQUIRES IT, THAT IT OUGHT TO BE IMPLEMENTED IN THE RULE! AND --
CHIEF JUSTICE: I GUESS ALL WE HAVE BEEN TALKING ABOUT THIS MORNING SO FAR IS WHAT WOULD BE WRONG WITH A WAIVER PROVISION, AND THEN AS JUSTICE WELLS SAID, TAILORING THE WAIVER PROVISION TO SOMETHING SIMILAR TO WHAT CURRENTLY EXISTS IN THE RULES GOVERNING OTHER TYPES OF CONTINGENCY ARRANGEMENTS.
YES. I UNDERSTAND THAT, BUT THERE IS NO OTHER WAY TO GET THIS BEFORE THE COURT, AND 54 LAWYERS SIGNED IT.
LET ME BE CERTAIN ABOUT WHAT YOU ARE STATING THERE, SO I UNDERSTAND CLEARLY. YOU ARE TELLING THE COURT THAT THIS IS NOT A CASE WHERE 50 OR 54 LAWYERS HAVE BEEN PAID BY PRIVATE ENTITY TO FILE THIS PETITION.
YES.
YOU ARE SAYING THAT MOST OF THESE LAWYERS ARE NOT BEING PAID ANYTHING.
NONE OF THEM ARE. I AM GETTING MY LEGAL FEES PAID, BECAUSE OF HAVING TO DO LEGAL WORK, BUT I WOULD SIGN THIS BECAUSE THE AMENDMENT SAYS THAT IT IS SUPPOSED TO BE DONE. I WOULD SIGN IT ANYWAY.
THE OTHER LAWYERS ARE NOT BEING PAID.
NO, THEY ARE NOT BEING PAID.
YOU ARE THE ONLY LAWYER --
I AM THE ONLY LAWYER, BECAUSE I AM THE ONLY LAWYER DOING LEGAL WORK. I AM PAID FOR THE LEGAL WORK NOT TO SIGN THE PETITION.
BUT IT SEEMS AS THOUGH THERE HAS BEEN A REPRESENTATION FROM THE OPPONENTS THAT MOST OF THOSE ARE FROM YOUR LAW FIRM, THAT THEY ARE LOBBYISTS FOR --
YEAH.
DO YOU DISPUTE THAT?
NO.
AND THAT THEY ARE LOBBYISTS FOR THE MEDICAL ASSOCIATION?
I WOULD ASSUME, BECAUSE THEY REPRESENT, OFTEN, MANY OF THEM REPRESENT THOSE INTERESTS, THAT THEY BELIEVE IN THAT, PHILOSOPHICALLY BELIEVE IN IT OR THEY WOULDN'T HAVE SIGNED IT!
WELL, I HAVE GONE THROUGH OVER 300 OF THESE, AND I HAVE LOOKED AT THEM, AND I HAVE LOOKED AT THOSE SUPPORTING YOUR POSITION AS WELL, AND SO YOU DO NOT DISPUTE THE MATERIAL ADVANCED BY THE OPPONENTS, WITH REGARD TO THE COMPOSITION OF THOSE WHO HAVE FILED THE PETITION?
NO, SIR. NO. NO. NO! BUT I SUGGEST THERE IS NOTHING IMMORAL OR ILLEGAL OR IMPROPER ABOUT IT, AND FRANKLY I AM SORT OF OFFENDED BY THE SUGGESTION TO THAT EXTENT. I AM SORRY.
WELL, ISN'T THERE SOME CONCERN THAT ANY PRIVATE ENTITY OUT THERE CAN HIRE 50 LAWYERS, IN ORDER TO GET A MAJOR RULE CHANGE, NOT BECAUSE WE HAVE AN INDEPENDENT BAR, WHERE THE LAWYERS IN GOOD FAITH, AS OFFICERS OF THE COURT, BELIEVE IN THE POLICY CHANGES THAT ARE REPRESENTED BY THESE RULES, BUT RATHER BECAUSE THEY ARE INDEED, HIRED BY ENTITIES THAT THEY REPRESENT, AND THAT THEIR INCOMES TURN ON THEIR ACTUAL REPRESENTATION, AND THAT CLEARLY AT LEAST GIVES AN APPEARANCE THAT THEY NORTH ACTING AS OFFICERS OF THE COURT THAT BELIEVE IN THE POLICY, BUT THAT THEY ARE ACTING ON BEHALF OF THE PEOPLE THAT PAY THEIR INCOMES! YOU DON'T BELIEVE THERE IS A APPEARANCE OF THAT?
YOUR HONOR, I CAN ONLY SAY THAT I SIGNED THIS BECAUSE I BELIEVE IT IS NECESSARY BECAUSE OF AMENDMENT 3.
THIS IS PURELY COINCIDENTAL THAT ALL OF THE LAWYERS THAT SIGNED, IT HAPPENED TO RECEIVE THEIR INCOME SUBSTANTIALLY FROM THIS PRIVATE ENTITY.
I CAN'T SPEAK FOR THE OTHERS.
THAT IS A COINCIDENCE?
YOUR HONOR, I AM SURE THEY AGREE WITH IT, TOO, OR THEY WOULDN'T HAVE SIGNED IT. YOUR HONOR, I HAVE USED UP A LOT OF TIME. MS.^RODRIGUEZ WILL SPEAK FOR A SHORT TIME.
GOOD MORNING. MAY IT PLEASE THE COURT. BEFORE I BEGIN HERE, LET ME CLARIFY THAT I AM HERE IN MY CAPACITY AS AN ATTORNEY AND NOT HERE REPRESENTING THE VIEWS OF THE GOVERNOR OR REPRESENTING HIM. I WOULD LIKE TO GO DIRECTLY TO THE WAIVER ISSUE AND THE PUBLIC POLICY QUESTIONS RAISED BY THE COURT. WE NEED TO REMEMBER THAT THE VOTERS OF THE STATE OF FLORIDA APPROVED THIS AMENDMENT 64 PERCENT TO 36 PERCENT, NOT IN ISOLATION, BUT AS A PACKAGE OF AMENDMENTS WHICH INCLUDED TWO OTHER CONSTITUTIONAL AMENDMENTS IN THE AREA OF MEDICAL MALPRACTICE. ONE WAS THE "THREE STRIKES" RULE, WHERE A DOCTOR WILL LOSE THIS HIS LICENSE, IF HE HAS THREE INSTANCES OF MEDICAL MALPRACTICE, AND THE OTHER ONE IS A CLAIM OF MEDICAL MALPRACTICE AND A COMPENSATION ISSUE. THESE WERE CHALLENGED AT THIS COURT, MANY IN TORT REFORM, SOME OF MUCH WERE ACCESS TO THE COURT AND THE PROVISION IN THE STATE CONSTITUTION, SO I THINK THE COURT OUGHT TO LOOK AT THIS AMENDMENT, NOT ONLY IN TERMS OF ITS PLAIN MEANING BUT ALSO IN CONTEXT OF THE AMENDMENTS ON WHICH THE JUDGES VOTED IN 2004, AS WELL AS THE ENTIRE CONTEXT OF THE EFFORTS AT TORT REFORM IN FLORIDA, WHICH HAVE BEEN WIDELY PUBLICIZED AND WIDELY DEBATED. AND THAT IS WHY THIS AMENDMENT NOT ONLY CONVEYS A PERSONAL BENEFIT ON A POTENTIAL CLAIMANT, BUT IT IS, ALSO, AN ISSUE OF PUBLIC POLICY. I THINK IT IS UNLIKELY THAT THE OVER 3 MILLION VOTERS WHO VOTED IN FAVOR OF THIS AMENDMENT, EVER THINK THAT THEY, THEMSELVES, ARE GOING TO BE THE VICTIM AFTER MEDICAL MALPRACTICE, AND I THINK THAT IT IS JUST AS LIKELY THAT THEY THOUGHT THAT MAYBE LAWYERS MAKE TOO MUCH MONEY FROM THESE CASES OR THAT THERE IS TOO MUCH LITIGATION THAT IS MOTIVATED BY HIGH CONTINGENCY FEES FROM MULTI-MILLION DOLLARRAPHERS.
BUT WE ARE HERE TO IMPLEMENT NOT THE CONSTITUTIONAL AMENDMENT BUT TO DETERMINE WHETHER TO ADOPT A RULE. WHAT HAPPENS IF WE DECLINE TO ADOPT THE RULE? ALL THE RULE DOES IS REGULATE BAR MEMBERS. WITHOUT THE RULE, YOU STILL HAVE THE CONSTITUTIONAL AMENDMENT, CORRECT? ISN'T THAT STILL ENFORCEABLE, REGARDLESS OF WHETHER WE HAVE A RULE?
YOUR HONOR, THE ISSUE IS WHETHER OR NOT A CLAIMANT IS GOING TO BE ABLE TO FIND A LAWYER WHO WILL NOT DEMAND A WAIVER AS A CONDITION OF REPRESENTATION. I THINK THAT --
YOU AGREE THAT NO LAWYER HAS TO ACCEPT REPRESENTATION, IF THE LAWYER DOESN'T WANT TO CEDE TO THESE LIMITATIONS. THE LAWYER CAN DECLINE TO ACCEPT THE CASE, BASED ON THE USUAL 33 PERCENT, RIGHT?
ABSOLUTELY TRUE, BUT AT THE SAME TIME IN 1977, WHEN THIS COURT APPROVED ANOTHER DISCIPLINARY RULE WITH REGARD TO CONTINGENCY FEES, THE SAME GROUP OF LAWYERS OR ENTITIES THAT ARE OR WERE HERE TODAY OPPOSING THAT RULE, WERE HERE ARGUING EXACTLY THE SAME THING, THAT IT WAS GOING TO DEPRIVE CLAIMANTS AND LAWYERS THE FREEDOM OF CONTRACT, THAT POOR CLAIMANTS WERE NOT GOING TO BE ABLE TO HIRE THE LAWYER OF THEIR CHOICE, AND ALL OF THESE ARGUMENTS WERE ANTICIPATED AT THE TIME, AND QUITE PRECIENTLY, THE PEOPLE, THE COURT SAID UNTIL OUR STATE IS DOCUMENTED PHILOSOPHICALLY IN FUNDAMENTAL LAW, WE ARE NOT TO RELEGATE FUNDAMENTAL OBLIGATIONS OF ACCESS TO THE COURTS OF THIS STATE. AT THE SAME TIME THE COURT WAS LIMITED TO WHETHER IT OUGHT TO ADDRESS CONTINGENCY FEES AND AT THE SAME TIME THE ACCESS TO JUSTICE SAID THAT CLEARLY THE COURTS SHOULD NOT BUT IT SAID IN THE FUTURE, THE PEOPLE THEMSELVES MAY WANT TO PROVIDE RULES ON CONTINGENCY FEES. THEY DID NOT PROVIDE A WAIVER. I KNOW THERE IS A JUDICIAL HISTORY OF INTERPRETING WAIVERS OF RIGHTS, BUT A YEAR AFTER THIS AMENDMENT HAS BEEN APPROVED BY THE PEOPLE, FOR THE COURTS TO SAY THAT IT CAN BE WAIVED, AND WITH NO PROTECTION, BECAUSE RIGHT RIGHT NOW, THERE IS NO DISCIPLINARY RULE PROTECT AGO CLAIMANT AT ALL.
CHIEF JUSTICE: WHAT ABOUT THE CURRENT RULE THAT HAS THE PROVISION FOR INCREASING FEES AND IT GOES THROUGH A MUTUAL JUDICIAL ARBITER. WOULDN'T THAT PROVIDE THAT PROTECTION, ESPECIALLY IF THERE IS A SITUATION WHERE SOMEBODY HAS GOT A LEGITIMATE CLAIM AND IT IS A $200,000 MALPRACTICE CLAIM BUT IT IS LEGITIMATE, BUT NO LAWYER IS GOING TO TAKE IT FOR WHATEVER THE 10 PERCENT OF, $20,000 MAXIMUM, AND THEY, YOU KNOW, THEY, THE LAWYER OF THEIR CHOICE IS NOT WILLING TO TAKE IT. WHERE IS THE, IT IS A LEGITIMATE CLAIM. WHERE IS THE HARM TO HAVING A WAIVER BY A JUDGE, AGAIN, AND THAT WAIVES, AVOIDS THE SORT OF SELF-INTEREST THAT YOU WERE REFERRING TO.
WELL, AS THE COURT I AM SURE IS WELL AWARE, THE CURRENT RULE DOES NOT ADDRESS THE WAIVER OF THIS PARTICULAR CONTINGENCY FEE SITUATION IN THE CONSTITUTION. IT ONLY ADDRESSES THE STANDING IN THE RULE.
CHIEF JUSTICE: I AM NOT SURE THAT WE HAVE ADDRESSED --
I THINK IF THE FLORIDA BAR HAD DONE ITS JOB AND ACTUALLY CONTEMPLATED THAT TYPE AFTER RULE, PERHAPS WE WOULD NOT HAVE BEEN HERE TODAY, BUT IT CHOSE NOT TO FOR WHATEVER REASON.
CHIEF JUSTICE: BUT DOESN'T THE COURT, DESPITE WHOEVER DID OR DIDN'T DO THEIR JOB, ISN'T THE COURT'S RESPONSIBILITY IN REGULATING LAWYERS, TO DO WHAT APPEARS TO BOTH EFFECTUATE THE INTENT OF THE AMENDMENT IN THE PLAIN LANGUAGE, PLUS, ALSO, CONSIDER REALITY OF WHAT JUSTICE LEWIS'S DISSENT WENT INTO IN GREAT DETAIL, ABOUT WHAT THE EFFECT OF THIS AMENDMENT IS?
I WILL ANSWER YOUR QUESTION AND THEN SIT DOWN, BECAUSE I AM ADVISED THAT I AM OUT OF TIME. YOUR HONOR, I THINK THAT THE VOTERS KNEW THAT THE WAIVER PROCESS WAS OPTION WHEN THEY VOTED FOR IT. HAD THEY INTENDED FOR A WAIVER, I THINK THEY WOULD HAVE VOTED THIS DOWN AND MAYBE SOME OTHER DAY, VOTED FOR A WAIVER, SO IN --
CHIEF JUSTICE: YOU ARE NOT TALKING ABOUT THE SAME VOTERS THAT VOTED FOR THE BULLET TRAIN, ARE YOU?
THEY CAN ALWAYS CHANGE THEIR CONSTITUTION. THAT IS THEIR PREROGATIVE. THANK YOU VERY MUCH.
MAY IT PLEASE THE COURT. MY NAME IS BARRY RICHARD, AND I AM HERE AS COUNSEL FOR THE FLORIDA BAR. THE BAR URGES THIS COURT TO DENY THIS PETITION FOR THREE REASONS. THE FIRST IS THAT THE PETITION ASKS THIS COURT TO INSERT INTO THIS CONSTITUTIONAL AMENDMENT, A PROVISION OF SIGNIFICANT MAGNITUDE OF WHICH THE VOTERS WERE NEVER GIVEN NOTICE AT ANY POINT. THERE WAS NO NOTICE IN THE LANGUAGE OF THE AMENDMENT, ITSELF, WHICH SAYS NOTHING ABOUT NONWAIVE ABILITY. NONE OF THE BRIEFS NOR THE ORAL ARGUMENT BEFORE THIS COURT.
WHAT IS THE BAR'S POSITION, IF WE INCLUDE, YOU INCLUDE A WAIVER PROVISION OR SIMPLY INCLUDE THIS AMENDMENT INTO THE CURRENT CONTINGENCY RULE, WHICH ALREADY PROVIDES FOR A WAIVER. WHAT IS THE BAR'S POSITION ON THAT?
YOUR HONOR, I HAVE NO GUIDANCE FROM THE BAR, BUT MY BELIEF IS THAT THE BAR WOULD SUPPORT IT BY VIRTUE OF THE FACT THAT THE BAR HAS TWICE PETITIONED THIS COURT TO PLACE LIMITS UPON CONTINGENCY FEES AND THE CURRENTLY EXISTING RULE WAS A RESPONSE TO ONE OF THOSE PETITIONS. I MENTIONED THAT, ALSO, BECAUSE IT IS A SIGNIFICANT RESPONSE TO THE SUGGESTION BY JUDGE GRIMES THAT IT WOULD BE FUTILE TO GO TO THE BAR, ASKING THEM TO DO ANYTHING. THE BAR --
IF WE REALLY GO BACK AND LOOK AT THE PETITION, '86, I THINK IF YOU LOOK AT THE PETITION AS FILED, DOESN'T IT SAY THAT IT WAS REALLY MOTIVATED BECAUSE THERE WAS LEGISLATION, THE COMPREHENSIVE MEDICAL MALPRACTICE FORMAT, AND IF WE DON'T DO SOMETHING, SOMETHING IS GOING TO BE DONE TO US, BASICALLY, IN TERMS OF THE BAR, SO REALISTICALLY, ISN'T THAT WHAT MOTIVATED THE BAR TO PRESENT THE CONTINGENCY RULE?
THAT MAY VERY WELL BE AND IN THIS INSTANCE, THE BAR MAY VERY WELL BE MOTIVATED, BUT I CAN'T ANSWER THAT QUESTION.
TELL US REALISTICALLY WHAT IS THE BAR DOING TO ADDRESS THE CONSTITUTIONAL AMENDMENT?
WELL, THE ONLY THING THAT I HAVE BEEN INFORMED THAT MY CLIENT WISHES ME TO INFORM THE COURT OF, IS THAT IT OPPOSES THE PETITION FOR THREE REASONS, THE FIRST OF WHICH IS THAT THIS COURT IS BEING ASKED AFTER THE FACT, TO INSERT INTO A CONSTITUTIONAL AMENDMENT, A PROVISION, A SIGNIFICANT LIMITATION UPON THE RIGHTS OF CITIZENS OF WHICH THEY HAD NO NOTICE! HAD THIS PROVISION, THE NONWAIVEABILITY PROVISION, BEEN EXPRESSLY INCLUDED IN THIS CONSTITUTIONAL AMENDMENT, AND THERE HAD BEEN NO MENTION OF IT IN THE BALLOT SUMMARY, AS IT WAS NOT, I SUBMIT --
IT SEEMS TO ME THAT THE REASON WE ARE HERE ON THE PETITION THAT MR. GRIMES IS, HAS FILED, IS BECAUSE THE FLORIDA BAR DID NOT FILE A PETITION FOLLOWING THE ADOPTION OF THIS. NOW, RIGHT AFTER THE ADOPTION, MR. WAGNER, WHO IS SITTING IN THE FRONT ROW BACK THERE, DID TRY TO FILE A PETITION WITH THIS COURT, AND ISN'T IT THE OBLIGATION OF THE FLORIDA BAR, IN ITS DISCIPLINARY RULES, TO SET OUT FOR LAWYERS WHAT THEIR ETHICAL RESPONSIBILITIES ARE, IN RESPECT TO CONTINGENCY FEES!
YES, YOUR HONOR, AND --
AND THE FLORIDA BAR HASN'T DONE THAT, HAS IT?
WELL, IT HAS NOT AND BELIEVES THAT THIS COURT SHOULD NOT, EITHER, AND YOUR QUESTION LEADS ME TO THE SECOND REASON THAT THE BAR THINKS THAT THIS PETITION SHOULD BE DISMISSED. ARTICLE V SECTION 15, GRANTS THIS COURT REGULATORY AUTHORITY TO DO TWO THINGS. THAT IS TO REGULATE THE ADMISSION OF LAWYERS TO PRACTICE AND TO REGULATE THE DISCIPLINE OF LAWYERS.
WELL, LET ME READ YOU A PIECE FROM THE FLORIDA BAR'S BRIEF THAT WAS FILED IN 1986.
OKAY. OKAY.
IN WHICH THE FLORIDA BAR'S POSITION AT THAT TIME WAS THE REGULATION OF CONDUCT OF ATTORNEYS ADMITTED IN THIS STATE IS THROUGH ENFORCEMENT OF THE CODE OF PROFESSIONAL RESPONSIBILITY. PETITIONER THERE FOR RESPECTFULLY SUGGESTS THAT THE ONLY APPROPRIATE PLACE FOR A GUIDELINE FOR CONTINGENCY FEES, IS WITHIN THE DISCIPLINARY RULES AND SUCH GUIDELINES SHOULD BE ADOPTED AS AN AMENDMENT TO DR-2-106.
YES, YOUR HONOR, AND I BELIEVE THE BAR STILL BELIEVES THAT BUT THERE IS AN IMPORTANT DISTINCTION HERE. THIS COURT HAS THE ABILITY TO REGULATE THE ADMISSION AND DISCIPLINE OF LAWYERS. NOWHERE IN THE CONSTITUTION IS THIS COURT GIVEN THE AUTHORITY, THE REGULATORY AUTHORITY, TO DEFINE THE CONSTITUTIONAL RIGHTS OF NONLAWYER CITIZENS. WHEN YOU REACH BEYOND A CAP AND SEIZE THE DISCIPLINE OF WAIVING THAT CAP --
CHIEF JUSTICE: I SUGGEST THAT THE LAWYERS SUGGEST THE SKIPABILITY WOULD BE A PART OF WAIVER OF ANY -- OF THE DISCIPLINEABILITY WOULD BE A PART OF WAIVER OF ANY RULE. AND THAT WOULD BE ACCEPTABLE TO THE BAR.
I DON'T THINK SO.
CHIEF JUSTICE: BECAUSE RIGHT NOW THE PROBLEM IS THAT THE RULE AS IT EXISTS DOES CONFLICT WITH THE AMENDMENT, AND FOR THAT REASON ALONE, IT SEEMS THAT THE COURT HAS AN OBLIGATION TO PUT THE RULE INTO CONFORMITY WITH THE AMENDMENT. WHAT WOULD BE YOUR RESPONSE, WITH THE WAIVER PROVISION, IF THAT IS WHAT THE COURT DECIDES?
AT THE APPROPRIATE TIME, YOUR HONOR, I WOULD THINK THE BAR PROBABLY WOULD FIND THAT ACCEPTABLE, WITH THE PROVISO THAT I HAVE NOT BEEN SO INSTRUCTED BY THE BAR.
CHIEF JUSTICE: WHAT WOULD BE THE APPROPRIATE TIME? WE ARE IN A SITUATION THAT APPARENTLY, SINCE THIS AMENDMENT HAS BEEN PUT INTO EFFECT, LAWYERS HAVE BEEN HAVING CLIENTS EXECUTE WAIVERS OR AGREEMENTS, WE DON'T KNOW WHAT THOSE ARE, POTENTIALLY THEY VARY GREATLY, BETWEEN LAWYER TO LAWYER. SHOULDN'T THIS BE SOMETHING THAT IS MADE UNIFORM, AS FAR AS WHAT NOTICE OF WHAT THEIR RIGHTS ARE AND THEN A WAIVER, IF IT IS TO BE DONE BY THE LAWYER? OR BEFORE A JUDGE, AND HAVE THAT LOOKED AT BY THE BAR, TO TELL US WHAT THE BEST WAY TO EXECUTE THAT WOULD BE.
YOUR HONOR, THE BAR BELIEVES THIS IS NOT THE APPROPRIATE TIME TO DO IT, BECAUSE IT REQUIRES THIS COURT TO PRESUME TWO THINGS. FIRST, THE INTERPRETATION OF THE NEW AMENDMENT, AND SECOND ITS VALIDITY, AND THIS IS NOT THE APPROPRIATE FORUM FOR THAT TO HAPPEN. BY THE WAY, THOSE ISSUES HAVE ALREADY BEEN ASSERTED IN A CIRCUIT COURT OF THIS STATE AND WILL IN GOOD TIME MAKE THEIR WAY TO THIS COURT, BUT FOR THIS COURT TO ADOPT ANY RULE IS TO PRESUME, BOTH THE VALIDITY OF THE CONSTITUTIONAL AMENDMENT AND TO PRESUPPOSE ITS INTERPRETATION. SO FAR AS THOSE LAWYERS THAT ARE CURRENTLY ENTERING INTO CONTINGENCY FEE AGREEMENTS AND PROVIDING FOR WAIVER, THEY DO SO AT THEIR OWN RISK!
DON'T WE HAVE TO ASSUME THE VALIDITY OF THE CONSTITUTIONAL AMENDMENT AND SHOULDN'T THIS COURT, THEN, DO, MAKE SOME CHANGES TO THE RULE?
WELL, YOUR HONOR, I, THE PROBLEM, OF COURSE, IS THAT THIS IS THE FINAL ADJUDICATIVE BODY OF THOSE ISSUES, AND I AM JUST SUGGESTING ON BEHALF THE BAR, THAT IT OUGHT TO AWAIT THE ADJUDICATION, AS OPPOSED TO THE OTHER WAY AROUND.
BUT IN THE MEANTIME, YOU ARE GETTING WAIVERS THAT MAY NOT BE APPROPRIATE. CLIENTS MAY BE NOT COERCED BUT IN SOME FORM FORCED TO SIGN THESE KINDS OF AGREEMENTS, AND SO SHOULDN'T WE DO SOMETHING IN THE INTERIM, TO ADDRESS THIS KIND OF SITUATION?
IT IS THE BAR'S POSITION THAT IT IS NOT NECESSARY FOR THIS COURT TO PROTECT LAWYERS WHO DECIDE TO TAKE THE RISK FROM THE FACT THAT THEY MAY NOT ULTIMATELY BE ABLE TO GET THE FEE THEY CONTRACTED FOR. HOWEVER, I, ALSO, WOULD SUGGEST TO THE COURT THAT I DON'T BELIEVE THAT THE BAR'S PARAMOUNT CONCERN HERE IS WITH THE POSSIBILITY OF THIS COURT ADOPT AGO INTERIM RULE, UNTIL IT HAS OPPORTUNITY TO REVIEW THE VALIDITY AND TO INTERPRET THE AMENDMENT. I THINK THE BAR'S PARAMOUNT CONCERN AND WHAT I BELIEVE IS CLEARLY THE PARAMOUNT REASON FOR THIS PETITION, IS THAT THIS COURT NOT INSERT INTO THIS AMENDMENT, AFTER THE FACT, A NONWAIVEABILITY PROVISION WHICH WE THINK WOULD BE IMPOSING THAT LIMITATION UPON VOTERS WHO NEVER HAD NOTICE OF IT AT THE TIME THAT THEY WERE ASKED TO SIGN THIS PETITION OR TO APPROVE THIS AMENDMENT.
WOULD YOU AGREE THAT, ASSUMING THAT THERE IS AN ADOPTION OF A RULE AND THAT THERE IS A WAIVEABILITY, THAT THERE NEEDS TO BE SOME LANGUAGE IN THE WAIVER, THAT WOULD ENSURE A MEANINGFUL WAIVER THAT IS APPROVED BY A CIRCUIT JUDGE?
YOUR HONOR, YES, I THINK THAT IS CONSISTENT WITH THE WAIVING OF ALL CONSTITUTIONAL AMENDMENTS.
IT HAS TO BE A KNOWING AND INFORMED WAIVER.
THAT IS CARDINAL TO THE RULE.
IF THE CURRENT RULE DOESN'T REALLY SAY, IF THE CURRENT RULE DOESN'T REALLY DEAL WITH A CONSTITUTIONAL WAIVER, IT JUST DEALS WITH THE ISSUE OF WHETHER THE PERSON COULD GET COUNSEL OR NOT. MY CONCERN IS HERE, WE HAVE GOT A CONSTITUTION THAT ALL OF US LAWYERS HAVE SWORN THAT WE ARE GOING TO UPHOLD THE CONSTITUTION OF THE STATE OF FLORIDA.
I HAVE NO DOUBT, YOUR HONOR THAT, THE BAR WOULD HAVE NO OBJECTION TO A PROVISION REQUIRING CIRCUIT COURT APPROVAL, UPON FINDING THAT IT WAS A KNOWING WAIVER, AND I THINK THAT IS CONSISTENT FOR FINDINGS OF ALL WAIVERS CONSTITUTIONAL RIGHTS.
LET ME PUT IT THIS WAY, BECAUSE I AM STRUGGLING WITH YOUR RESPONSE. THAT IS THAT WE HAVE NOW HAD AN AMENDMENT TO OUR CONSTITUTION PASSED IN THE STATE OF FLORIDA. THE AMENDMENT SPECIFICALLY MENTIONS CONTINGENCY FEES IN LAWSUITS. NOW, REGARDLESS OF THE WAIVER OR WHATEVER, DOESN'T THIS PROVIDE THE BAR, THEN, WITH A PROVISION IN THE STATE CONSTITUTION, TO COME FORWARD IN A WAY WITH A MINIMUM, FOR INSTANCE, ENSURING THAT LAWYERS PROVIDE THEIR CLIENTS OR PROSPECTIVE CLIENTS THAT THERE IS THIS CONSTITUTIONAL AMENDMENT ENTITLEMENT THAT YOU OUGHT TO KNOW EXIST AND YOU ARE ENTITLED TO. THAT BAR LAWYERS MAY TAKE A MINIMAL POSITION THAT LAWYERS HAVE TO ADVISE THEIR CLIENTS ABOUT THAT AND THEN PERHAPS IT CAN BE WAIVED, IF IT IS DISCUSSED BEFORE THE COURT OR WHATEVER, BUT DOESN'T THE BAR, OKAY, REPRESENTING THE LAWYERS OF THIS STATE, AS AN ARM OF THE COURT, HAVE AN OBLIGATION TO COME FORWARD, NOW, THAT THERE IS ACTUALLY BEEN A CONSTITUTIONAL AMENDMENT, A PROVISION NOW IN OUR CONSTITUTION, THAT GIVES THIS ENTITLEMENT TO ENSURE, FOR INSTANCE, THAT A LAWYER DOESN'T SIGN SOMEBODY UP TO AN EXCESSIVE CONTINGENCY FEE AGREEMENT, NEVER MENTIONS THIS CONSTITUTIONAL PROVISION, THE LAWSUIT GETS SETTLED. THE MONEY GOES TO THE LAWYER IN THE TRUST ACCOUNT, AND THE LAWYER DISPERSES THE FUNDS, AND THE CLIENT NEVER KNEW THAT THERE WAS EVEN THIS PROVISION THAT EXISTED, AND SO DOESN'T THE BAR HAVE, WE ARE NOT TALKING ABOUT THE BAR HAVING AN OBLIGATION TO BUY INTO A PARTICULAR INTERPRETATION HERE, BUT DOESN'T THE BAR HAVE SOME RESPONSIBILITY, NOW, TO REACT TO THE ENACTMENT OF THIS CONSTITUTIONAL PROVISION?
YOUR HONOR, I DON'T KNOW WHETHER THE BAR HAS AN OBLIGATION TO DO THAT. AND REGARDING THIS CONSTITUTIONAL PROVISION, THE RULES COME TO THE BAR THROUGH A COMMITTEE AND IT WORKS ITS WAY UP AND THE BAR SUBMITS IT TO THIS COURT AND SAYS THE BAR WOULD LIKE YOU TO CONSIDER WHETHER OR NOT A RULE SHOULD BE ADOPTED. THESE PETITIONERS HAVE, BY THEIR OWN ADMISSION, NEVER BROUGHT THIS TO THE BAR, AND I DON'T KNOW WHETHER THIS ISSUE IS BEING COUNTERED OR MAY BE UNDER CONSIDERATION AT THIS TIME, BUT I CANNOT ANSWER THAT QUESTION, IN TERMS OF WHETHER OR NOT THE BAR HAS A RESPONSIBILITY TO DO IT. THE BAR, AS YOU KNOW, IS NOT A MONOLITHIC ORGANIZATION. AS YOU KNOW IT OPERATES AS ONE AND GOES THROUGH A SYSTEM THAT BRINGS IT TO THE ATTENTION OF A COMMITTEE AND THEN AFTER THE COMMITTEE, TO THE BOARD OF GOVERNORS AND TO THIS COURT, SO THAT MAY OR MAY NOT BE IN PROCESS AT THIS TIME. CERTAINLY IF THIS COURT CALLED UPON THE BAR TO BEGIN THAT PROCESS, IT WOULD DO SO.
YOU SAID YOU HAD THREE OBJECTION TO SAY THE AMENDMENT. I WANTED TO MAKE SURE WE HEARD THE THIRD.
YES. YOUR HONOR, I HAVE AS I LEARNED LONG AGO IS THE BEST WAY TO DO IT, GOTTEN THOSE OUT IN RESPONSE TO QUESTIONS.
I SUSPECTED AS MUCH.
SOMETIMES YOU DON'T OTHERWISE GET IT OUT BUT I WILL SUMMARIZE THE THREE. FIRST THAT THE VOTERS HAD NO NOTICE OF THIS AND IT WOULD HAVE BEEN A DEFECTIVE BALLOT SUMMARY, HAD THE VOTERS HAD NOTICE OF IT AND SECONDLY THAT WE BELIEVE IT DEFIES THE CONSTITUTIONAL AUTHORITY TO ASSERT THIS AND THAT THE THIRD IS THIS IS NOT THE PROPER TIME OR FORUM TO PRESUPPOSE WHAT THE INTERPRETATION WOULD BE OF THE CONSTITUTIONAL AMENDMENT.
THANK YOU.
CHIEF JUSTICE: I DON'T KNOW. LIGHTS ARE SUPPOSED TO COME ON, BUT HOW MANY MINUTES --
20 MINUTES LEFT.
CHIEF JUSTICE: 20 MINUTES LEFT. OKAY. ALL RIGHT.
I WILL TRY TO KEEP IT --
CHIEF JUSTICE: MR. RICHARD DIDN'T USE, HE HAD FOUR MINUTES LEFT.
I CAN TALK SOME MORE.
CHIEF JUSTICE: I AM SURE YOU COULD BUT IT SOUNDS LIKE YOU GOT ALL OF YOUR POINTS OUT, WHICH IS MORE THAN 99 PERCENT OF THE PEOPLE ARGUING IN FRONT OF US.
MAY IT PLEASE THE COURT. I AM SPEAKING FOR THE CONSUMER ORGANIZATIONS WHO WERE GRANTED LEAVE TO ARGUE IN THIS CASE. THEY HAVE SOME VERY UNUSUAL PERSPECTIVES ON THIS PROPOSAL AND THEY REVOLVE AROUND THEIR REASONABLE EXPECTATIONS, BOTH IN TERMS OF THE PROCESS BY WHICH THIS LANGUAGE EMBODIED IN AMENDMENT THREE WOULD BE INTERPRETED AND THE PROPRIETY OF TAKING IT ESSENTIALLY OUT OF THEIR HANDS, OUT OF CONTRACT RIGHTS, OUT OF THE COURTS IN WHICH CONTRACTS ARE INTERPRETED, SUBJECT TO WHATEVER CONSTITUTIONAL STRICTURES MAY LIMIT THOSE RIGHTS, WHICH ARE ALSO PROPERLY DETERMINED IN THE COURTS NOT IN A RULE-MAKING CONTEXT, WHICH INVOLVES LAWYERS AND THE BAR, BUT NOT THEM. WITH THE EXCEPTION OF ANY RULE, WHICH WOULD SCRUTINIZE THE VALIDITY OF WAIVER, WHICH IS ALWAYS AN APPROPRIATE SUBJECT AND SHOULD BE APPROPRIATE SUBJECT, BUT NOT THE PROPRIETY OF A WAIVER, ITSELF, AS AN INTERPRETATION OF A CONSTITUTIONAL PROVISION, AND THAT, WE THINK, IS THE IMPORTANT THRESHOLD QUESTION TO ANSWER, BEFORE WE DETERMINE WHETHER SUCH A RULE WOULD BE AN ACCURATE INTERPRETATION OF AMENDMENT 3, AND WHERE I STARTED IN TRYING TO LOOK AT THAT QUESTION, IS HOW THE PROPOSAL WAS CHARACTERIZED TO THE COURT WHEN IT WAS FIRST ADOPTED. IN JUSTICE GRIMES'S BRIEF IN SUPPORT OF THE INITIATIVE, HE SAID THAT THE AMENDMENT ON PAGE 8, PERFORMS THE LEGISLATIVE FUNCTION OF ENACTING SUBSTANTIVE LAW. THAT IS THAT IT IS A SUBSTANTIVE PROVISION. AND HE SAID THREE TIMES IN THAT BRIEF, THAT ANY QUESTION OVER THE PROPRIETY OF CLAIMS, WILL BE RESOLVED BY THE COURTS, AS, JUST AS ANY OTHER DISPUTE. THAT IS A QUOTE. HE SAID THE SAME THING ON PAGE 12, REGARDING ANY CONSTITUTIONAL QUESTIONS THAT MAY ARISE. THAT IS HOW IT WAS PRESENTED, AND IN ITS ADVISORY OPINION, THIS COURT SAID EXACTLY SAME THING AT ONE POINT, AT PAGE 679. IT SAID, RELATIVE TO THE TERM MEDICAL LIABILITY IN THE PROPOSAL, THAT THE ISSUE AS TO THE PRECISE MEANING OF THIS TERM, IS BETTER LEFT TO SUBSEQUENT LITIGATION.
CHIEF JUSTICE: THAT IS AS TO WHETHER IT WAS ONLY MALPRACTICE CASES OR WHETHER IT WAS A VAGUE TERM, BUT WHAT ABOUT THE STATEMENT THAT WE MADE, WHICH IS THAT THE AMENDMENT WOULD FUNCTIONALLY OVERRIDE OR INTERFERE WITH THE RULES OF PROFESSIONAL CONDUCT, AS THEY RELATE TO FEE CONTRACTS BETWEEN ATTORNEYS AND THEIR CLIENTS? IT DOESN'T SEEM, AND, AGAIN, YOU ARE SPEAKING ON BEHALF OF CONSUMERS WHO WERE GIVEN CERTAIN RIGHTS, WHICH ARGUABLY COULD BE WAIVED. WHY ISN'T IT IN CONSUMERS' INTEREST TO HAVE THIS REGULATED UNIFORMLY, SO THAT THERE IS A UNIFORM WAIVER FORM, AND THEN A, AS WE HAVE BEEN DISCUSSING THIS MORNING, THAT THE JUDGE WOULD, THEN, MAKE SURE THAT THE WAIVER WAS KNOWING, AS A POSSIBLE SCENARIO. I DON'T THINK TODAY WE WOULD HAVE TO SEND THAT BACK TO THE BAR.
ISN'T IT APPROPRIATE TO ADDRESS THAT INTEREST IN THE CONTEXT OF RULE-MAKING, RATHER THAN IN THE CONTEXT OF A CASE OR CONTROVERSY.
CHIEF JUSTICE: THE PROBLEM, THOUGH, IS THAT THE AMENDMENT, YOU KNOW, WAS LABELED AS BEING STRAIGHTFORWARD BY THIS COURT, IN TERMS OF THE FACT THAT THERE WOULD BE A LIMITATION ON CONTRACTUAL FEE ARRANGEMENTS, AND IT CLEARLY CONFLICTS WITH THE RULE OF PROFESSIONAL CONDUCT, SO IT SEEMS THAT FOR THE COURT TO HAVE RULES THAT RIGHT NOW ARE IN CONFLICT WITH THE CONSTITUTIONAL AMENDMENT, IS, THAT IS WHAT CONCERNS ME.
I THINK YOUR OPINION SAYS EXACTLY OPPOSITE. I WAS GOING TO READ THAT QUOTE FOR MY PURPOSES. THE AMENDMENT WOULD FUNCTIONALLY OVERRIDE OR INTERFERE WITH THE RULES OF PROFESSIONAL CONDUCT. I SENT OUT SOME SUPPLEMENTAL AUTHORITY SAYING THAT CONSTITUTIONAL PROVISIONS CLEARLY PREEMPT INCONSISTENT RULES. THEY DO NOT, THOSE RULES DO NOT INTERFERE IN THIS RUBRIC, WHICH IS CONTROLLED BY A CONSTITUTIONAL PROVISION PROPERLY --
BUT ISN'T IT, REGARDLESS OF WHETHER YOU ARE IN REPRESENTATIVE CAPACITY OF A CONSUMER OR AS A LAWYER, DON'T YOU HAVE TO AGREE THAT IT IS THE PROVINCE AND THE RESPONSIBILITY OF THIS COURT TO REGULATE LAWYERS, AND THAT, AS PART OF THAT REGULATION, THIS COURT HAS DETERMINED THAT IT IS GOING TO REGULATE LAWYERS IN THE AREA OF CONTINGENCY FEES?
EXCEPT TO THE EXTENT THAT THE FIELD IS OCCUPIED BY A PREEMPTIVE CONSTITUTIONAL PROVISION. THERE IS NO OCCUPATION IN ANY OTHER AREA.
BUT IT SEEMS TO ME THAT WHAT THE, THE CONSTITUTION DOES IS SET WHAT THE REGULATION THAT THE COURT HAS TO ADOPT, UP, AND THAT, BECAUSE THIS COURT IS SWORN TO SUPPORT AND DEFEND THE CONSTITUTION OF THE STATE OF FLORIDA.
IN A CASE OR CONTROVERSY. IN A JUDICIAL PROCEEDING. EVERY CASE WHICH MY OPPONENTS HAVE CITED, ON EVERY ISSUE WHICH HAS ARISEN IN THIS CONTEXT, HOW YOU INTERPRET IT, ARE THERE COUNTERVEILING CONSTITUTIONAL COSIDERATIONS, IS A REAL CASE, REAL CONTROVERSY, WHICH STARTED IN THE TRIAL COURTS BETWEEN THE ADVERSARIES, CREATED A FACTUAL RECORD AND WORKED ITS WAY UP TO THIS COURT. AND JUSTICE GRIMES ONCE AGAIN, HAS CHALLENGE US FOR ADVANCING SPECULATIVE CONTENTIONS ABOUT THE ABILITY TO OBTAIN A LAWYER. OF COURSE THEY ARE SPECULATIVE. WE HAVE NOT YET CREATED A FACTUAL RECORD IN A LIVE CASE, IN ORDER TO ESTABLISH THOSE POINTS.
DON'T WE REGULARLY, IN RULES CASES, ALL THE TIME, SAY THAT WE ARE GOING TO ADOPT THIS PARTICULAR RULE, WHETHER IT IS A RULE OF APPELLATE PROCEDURE OR CIVIL PROCEDURAL OR CRIMINAL PROCEDURE, AND THEN IN THAT OPINION, SAY WE DO NOT AT THIS TIME ADDRESS ANY ISSUES REGARDING THE CONSTITUTIONALITY OF THIS RULE, AND WE OPEN THE POSSIBILITY THAT THE RULE THAT WE HAPPEN TO BE ADOPTING, MAY, LATER, BE DECLARED UNCONSTITUTIONAL.
AND AS MR. RICHARD SAID, IF THIS WERE AN INTERIM PROPOSAL WHICH RECOGNIZED THAT IN A CASE OR CONTROVERSY IT COULD BE INTERPRETED TO THE CONTRARY, THAT WOULD BE A VERY DIFFERENT PROPOSITION. BUT THIS COURT HAS SAID, IN A SUPPLEMENTAL AUTHORITY IN A CASE CALLED IN RE AMENDMENT 2000, PRECISELY THAT IT WOULD NOT PASS ON THE PROPRIETY OF A RULE JUDGING WHETHER IT WAS RIGHT TO DO THAT, BECAUSE IT WOULD PREJUDGE A STATUTE, AND WE CANNOT ADOPT A RULE WHICH INTERPRETS OR MAKES A CONSTITUTIONAL JUDGMENT ON A STATUTE, UNTIL THAT ISSUE IS ADJUDICATED.
CHIEF JUSTICE: DO WE KNOW THROUGH THE COMMENTS THAT HAVE BEEN FILED, THAT SINCE THE AMENDMENT HAS BEEN PUT INTO EFFECT, THAT LAWYERS ARE ASKING THEIR CLIENTS TO WAIVE WHATEVER SPECIFIC PERCENTAGES ARE SET FORTH IN THE RULE? I MEAN IN THE AMENDMENT. WE KNOW THAT IS HAPPENING. ALL RIGHT. SO WITH THAT IN MIND, WHY WOULDN'T IT BE GOOD POLICY FOR THIS COURT, AGAIN, TO DO AN INTERIM RULE WITH INPUT FROM THE BAR SPECIFICALLY, AS TO HOW IT WOULD BE DRAFTED, THAT WOULD RECOGNIZE THE AMENDMENT, RECOGNIZE TO THE EXTENT OF CONFLICTS WITH THE CURRENT RULE, AND PROVIDE FOR A MEANINGFUL BUT KNOWING WAIVER OF THE RIGHTS GUARANTEED TO THE CLAIMANTS IN THE AMENDMENT?
I THINK IT WOULD BE A MEANINGFUL INTERIM RULE. I WOULD HAVE NO PROBLEM WITH SUCH A RULE, AND LET ME ADDRESS THAT QUESTION IN THE CONTEXT OF THE SECOND ARGUMENT, WHICH IS WHETHER THIS PROPOSAL IS A FAIR CHARACTERIZATION AND REPRESENTATION OF AMENDMENT 3, AND YOUR HONEST QUESTION PRESOUPS THAT YOU HAVE CONCLUDED THAT IT IS NOT, AND THAT THIS IS A RIGHT WHICH IS WAIVEABLE. HERE IS WHAT WE KNOW ABOUT. THAT WE KNOW THAT THE TITLE WAS THE MEDICAL LIABILITY CLAIMANT'S COMPENSATION AMENDMENT. WE KNOW THAT THE LANGUAGE REFERRED TO THE CLIENT'S ENTITLEMENT, QUOTE/UNQUOTE. WE KNOW THAT THE SUMMARY REFERRED TO THE CLAIMANT'S QUOTE ENTITLEMENT CLOSE QUOTE. WE KNOW THE COURT, IN ITS ADVISORY OPINION, SAID THAT THIS WAS A FAIR SUMMARY, AND, QUOTE, IT IS STRAIGHTFORWARD, AS TO HOW WHO IT AFFECTS AND WHO IS INVOLVED IN ITS INTERPRETATION, CLOSE QUOTE, AND WE KNOW THAT THE BRIEF, IN SUPPORT OF THIS AMENDMENT, WRITTEN BY JUSTICE GRIMES, TOLD US THAT IT CREATED A RIGHT IN THE CLIENT.
CHIEF JUSTICE: ALL RIGHT, SO YOU JUST, MAYBE WE ARE NOT ALL OF US ON THE SAME SIDE BUT THE IDEA, YOU AGREE THAT A RULE THAT WOULD CONTAIN A WAIVER PROVISION, WOULD BE AT LEAST ON AN INTERIM BASIS, WOULD, FIRST OF ALL EFFECTUATE THE REALITY THAT IS OUT THERE, WHICH THERE CURRENTLY ARE WAIVERS THAT ARE OCCURRING, AND, ALSO, ALLOW THERE TO BE SOME UNIFORMITY IN HOW THAT PROCESS OCCURS THROUGHOUT STATE.
YES, IT WOULD. IT CERTAINLY COULD INCLUDE PROVISIONS CONCERNING THE VALIDITY AND INFORMED NATURE OF A WAIVER THAT IS ALWAYS PERMISSIBLE, AS JUSTICE CANTERO SAID, IN ANY CONTEXT IT IS APPROPRIATE, AND I UNDERSTAND THAT THAT MAY BE WHERE THE COURT IS GOING, BUT I HAVE TO CONTINUE TO REBUT THE ARGUMENT THAT IT MAY BE NONWAIVEABLE, AND IN ADDITION TO ALL OF THESE WAYS IN WHICH IT WAS MARKETED TO MY CLIENTS AND THEY WERE TOLD THAT THEY WERE VOTING ON THIS AS AN ENTITLEMENT, AS COMPENSATION AMENDMENT, AS STRAIGHTFORWARD SUMMARY WHICH SAID NOTHING ABOUT WAIVER. IT, ALSO, WAS PROMOTED IN THE CONTEXT OF A VERY WELL ACCEPTED SET OF POLICIES AND INTERPRETATIONS WHICH PERMIT THE WAIVER OF CONSTITUTIONAL RIGHTS IN A VARIETY OF CONTEXTS, IN A VARIETY OF CONTEXTS IN WHICH THOSE RIGHTS ARE MUCH MORE FUNDAMENTAL THAN THIS ONE AND, I WOULD ADD, EVEN WHEN THERE MAY BE AN ADVERSARIAL TYPE RELATIONSHIP. ALL THE TIME CRIMINAL DEFENSE LAWYERS ADVISE THEIR CLIENTS ABOUT THEIR RIGHT TO DEFEND THEMSELVES AND THEIR RIGHT TO REJECT COUNSEL, WHICH IS POSSIBLY A CONFLICTING SITUATION --
CHIEF JUSTICE: I WANT TO MAKE SURE, MR. PERWIN, THAT YOU ARE KEEPING TRACK OF YOUR TIME. THERE IS STILL ONE MORE ATTORNEY TO ARGUE.
THIS ONE SAYS 5-11. I AM NOT SURE WHAT THAT MEANS.
CHIEF JUSTICE: NINE MINUTES LEFT MEANS THAT WE HAVE ONE MORE ARGUMENT FOR 8 MINUTES OF THE YOU HAVE A MINUTE LEFT ON YOUR TIME.
ON MY TIME.
LET ME JUST, AS FAIRNESS TO THE QUESTIONS OF MR. GRIMES, WHICH OF THE WAIVEABLE CASES WERE PAID ON CONTINGENCY FEE CASES.
THE OTHERS WHO SIGNED UP WERE NOT BEING PAID AND MR. GRIMES WAS BEING PAID FOR HIS TIME. AND I DON'T SEE WHY, AND MY COLLEAGUES FROM THE BACK MAY BE THROWING THINGS AT ME AT THIS POINT, BUT I DON'T SEE WHY THERE IS NOT A RIGHT TO PETITION THE COURT, IF PAID BY A CLIENT TO DO SO. THIS PETITION JUST HAPPENS TO BE INCONSISTENT WITH THE RIGHTS OF CONSUMERS. IT IS BAD POLICY. CONSTITUTIONAL RIGHTS CAN BE WAIVED ALL THE TIME. IT IS NOT IN THE AMENDMENT.
I WAS GOING TO GIVE YOU A QUESTION ABOUT THE --
CHIEF JUSTICE: I THINK JUSTICE CANTERO HAD A QUESTION AND THEN WE ARE GOING TO --
I HAD A QUESTION ON THE CONTINUATION OF YOUR THREAD OF WAIVER OF RIGHTS, IT SEEMS MORE CONTRAST WHEN LAW ENFORCEMENT AGENCIES ASK DEFENDANTS TO WAIVE THEIR RIGHT TO AN ATTORNEY OR THEIR FIFTH AMENDMENT PRIVILEGE AND THEY DON'T EVEN GO BEFORE A JUDGE BEFORE THEY SIGN A WAIVER OF THAT.
IT WAS SUBJECT TO SCRUTINY OF WHETHER IT WAS KNOWING AND VOLUNTARY.
SURE.
AND I MIGHT ADD IN RESPONSE TO THAT COMMENT, IT DOESN'T GUT THE RIGHT. THE RIGHT TO COUNSEL IS NOT MEANINGLESS. THE RIGHT TO REMAIN SILENT IS NOT MEANINGLESS, JUST BECAUSE YOU CAN WAIVE IT. IT IS FUNDAMENTAL, PERSONAL AND IT CAN BE WAIVED. THERE IS NOTHING CONFLICTING ABOUT THAT.
CHIEF JUSTICE: JUSTICE ANSTEAD HAD A QUESTION.
WOULD IT BE APPEARANCE AFTER CONFLICT OF INTEREST, IF WE HAD THE SAME LAWYER THAT WOULD BE OF BEN FIFTH THE WAIVER, OBTAINING THE WAIVER FROM THE PROSPECTIVE CLIENT. IN OTHER WORDS, IF IT IS IN THE LAWYER'S INTEREST TO HAVE THIS PROVISION WAIVED, HOW CAN THAT LAWYER BE THE APPROPRIATE ONE TO ADVISE THE CLIENT THAT YOU CAN WAIVE THIS RIGHT, AND OF COURSE IN THIS INSTANCE, I URGE TO YOU DO SO BUT IT IS BECAUSE I PROBABLY WOULDN'T REPRESENT YOU, UNLESS YOU DID WAIVE IT?
RULE 4.15-D, THESE SHOULD BE TREATED AS CONTRACTS. RULE 4.15-F-4-B-2, YOU CAN PETITION THE COURT TO ACCEDE IN AN ATTORNEY CLIENT RELATIONSHIP IN A CLIENT'S BILL OF RIGHTS. THERE IS NO SPECIFIC REQUIREMENT OF A CLIENT'S SPECIFIC FEE. THE CLIENT HAS AN INHERENT RIGHT TO BARGAIN WITH HIS LAWYER AND PRESENT THE PROPOSAL TO A COURT, FOR THE INSURANCE THAT IS VOLUNTARY. THERE ARE LOTS OF CONTEXTS IN WHICH A LAWYER WHO HAS A THEORETICAL ADVERSARIAL RELATIONSHIP, THERE MAY BE A CONTRACT AT THAT POINT. THEY ARE BARGAINING OVER THAT CONTRACT AND THE RULES ENSHRINE THE RIGHT TO DO SO AND IN CLOSING LET ME SAY THAT IS BECAUSE THEY TREAT CLIENTS AS GROWN UPS, AS ADULTS WHO ARE CAPABLE OF MAKING INFORMED DECISIONS AND CAPABLE OF MAKING CONTRACTS SUBJECT TO SCRUTINY. THERE WAS A QUESTION ASKED WHAT IF THEY DON'T KNOW ANYTHING ABOUT, IT I BELIEVE FROM YOUR HONOR. IT WON'T WORK. IT WON'T BE ENFORCED. BUT THEY SHOULD HAVE THE RIGHT TO MAKE CONTRACTS, INFORMED CONTRACTS, SUBJECT TO JUDICIAL SCRUTINY, SUBJECT TO CONSTITUTIONAL INTERPRETATION, AND NOT HAVE THIS MATTER REMOVED FROM THE DOMAIN OF THEIR INTEREST, PUT INTO A DISCREET BAR CONTEXT INVOLVING LAWYERS AND THE BAR, AND TAKING THEM OUT OF THE PROCESS. THEY OBJECT TO. THAT THEY DON'T THINK IT IS PROPER. THEY DON'T THINK IT IS APPROPRIATE, AND THEY WOULD URGE THAT THE PROPOSAL BE REJECTED.
CHIEF JUSTICE: THANK YOU VERY MUCH. HOW MANY MORE MINUTES FOR THE --
MARSHAL: FIVE MINUTES TOTAL LEFT IN THEIR TIME.
MAY IT PLEASE THE COURT. MY NAME IS ROBERT PECK. I AM HERE ON BEHALF THE FLORIDA TRIAL LAWYERS. I WOULD LIKE TO CORRECT THE COURT, BECAUSE I THINK THE OTHER STATES THAT HAVE SOMETHING TO SAY ABOUT THIS, THERE AREN'T 17 STATES AS JUSTICE GRIMES TOLD THE COURT, THAT HAVE CONTINGENCY FEE LIMITATIONS FOR MEDICAL MALPRACTICE. THEY RIGHT CITE AN OREGON STATUTE THAT HAS TO DO WITH A SHARE OF A PUNITIVE DAMAGE AWARD THAT THE STATE GETS 60 PERCENT IN OREGON. IT HAS NOTHING TO DO WITH CONTINGENCY.
THERE IS SOME CONFLICT WHEN THE LAWYER IS ASKING FOR A WAIVER AND IT IS IN HIS OR HER BEST INTEREST TO GET THE WAIVER OF THE FEE, WHAT DO YOU ASSUME, AND THERE IS A WAIVER PROVISION IN THE RULE. CORRECT?
CORRECT.
WHAT DO YOU ANTICIPATE OR SEE AS THE KIND OF WAIVER THAT WOULD BE EFFECTIVE? WHETHER DOES THE JUDICIAL SCRUTINY OF THE WAIVER COME?
I THINK UNTIL THERE IS A RECORD OF ABUSE, THE FACT IS THAT CONSTITUTIONAL RIGHTS CAN BE WAIVED, AS LONG AS THEY ARE KNOWING, INTELLIGENT AND VOLUNTARY. THAT IS THE STANDARD THAT IS ACCEPTABLE, THAT OTHER STATES USE WHERE THEY ACCEPT WAIVERS, AND IN DELAWARE, FOR EXAMPLE, THE ONE CASE IN WHICH THEY HAD DECIDED AN ISSUE UNDER THEIR STATUTE, THEY DISCIPLINED A LAWYER FOR FAILING TO INFORM HIS CLIENT THAT THEY HAD A RIGHT TO THIS THING BUT THEY COULD WAIVE THAT RIGHT.
WHAT IS KNOWING, INTELLIGENT AND VOLUNTARY? IS IT SIMPLY SIGNING A PIECE OF PAPER AT THE TIME THAT YOU ARE HIRING AN ATTORNEY, SAYING I HEREBY WAIVE MY RIGHT TO A CERTAIN PERCENTAGE AND SIGN ON THE DOTTED LINE?
I HAVE THEY HAVE A CONSTITUTIONAL RIGHT AND THEY HAVE TO BE INFORMED THAT THIS RIGHT ALLOWS THEM TO GO TO ANOTHER ATTORNEY WHO MAY WANT TO WORK FOR PERCENTAGES IT THAT ARE SET OUT THERE, PERCENTAGES WHICH ARE NOT SOLELY APPLICABLE FOR ATTORNEYS FEES BUT MAY APPLY TO OTHER LIENHOLDERS.
ASSUMING THAT IS THE CASE, I WOULD ALSO ASSUME THAT ATTORNEYS, IN ORDER TO MAKE SURE THAT THERE IS A RECORD OF THE WAIVER, IS GOING TO PUT IT OUT IN WRITING AND THEN BE ABLE TO SIGN AT THE BOTTOM OF THE PAGE.
I THINK THERE IS AN AUTHORITY --
WHAT WOULD BE THE RECORD, [LOST AUDIO]