The Florida Bar
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PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 66-42
August 15, 1966

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

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.

[Revised: 08-24-2011]