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The Florida Bar
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PROFESSIONAL ETHICS OF THE FLORIDA BAR

OPINION 67-1
April 5, 1967

So long as the total fee is reasonable and the arrangement is disclosed to the court, there is no ethical objection to the charging of a contingent fee in a condemnation case in addition to the fee awarded by the court.

Canon: 13

Chairman MacDonald stated the opinion of the committee:

The question upon which our opinion is based is stated by the inquirer as follows:

Is is proper in eminent domain cases for the defendant's (property owner) attorney to charge a contingent fee or percentage of the recovery on that portion of the recovery which exceeds the condemning authority's original estimate of value, and at the same time recover a fee from the condemning authority as provided by statute and the constitution?

Canon 13 permits the charging of a contingent fee where sanctioned by law, provided it is reasonable under all circumstances of the case, and is subject to the supervision of the court. We are aware of no provision of law precluding a contingent fee arrangement between attorney and client in a condemnation case. Indeed a recent comprehensive treatise, Contingent Fees for Legal Services, MacKinnon, concludes that the use of such contingent fee arrangements in this field is customary (page 28). It, of course, is manifest that, unlike many instances wherein such contingent fee agreements are utilized, the probability of no recovery whatever, and thus no fee, is remote. Hence, the reduction of uncertainty on this score is necessarily one factor to be considered in the determination of what would be reasonable under all circumstances of a condemnation case.

Having concluded that there is no impropriety per se in the use of a contingent fee in a condemnation case, we come to the immediate issue posed here. This in essence is whether under any circumstances a contingent fee could be superimposed upon a reasonable fee awarded by the court under the statutory procedures currently in effect in this state, Section 73.091, Florida Statues (1965). As noted, a contingent fee must be reasonable under all the circumstances. The cited statute provides that “a reasonable attorney's fee” will be assessed by the court. Two members of the Committee conclude that the establishment of a reasonable fee by the court should ordinarily preclude charging of a more substantial fee on the ground that such fee would necessarily be unreasonable. The majority disagree, believing that the judicial declaration that one fee is reasonable is by no means a declaration that another and larger fee is necessarily unreasonable. Of necessity the concept of reasonableness is broad and should ordinarily extend to a range of fees. For example, an appeal by either party from the establishment of a reasonable fee on the basis that a larger fee would be reasonable or that a smaller fee would be reasonable could easily be affirmed by an appellate court on the basis that the mere fact that its members or some of them might have established a different fee were they the trial judge is immaterial.
Thus we see no objection to the proposed arrangement so long as the other provisions of Canon 13 are observed and the fee agreement is disclosed to the court. Needless to say, a marked variation in the total fee from that established by the trial court would be sufficient to raise serious question as to the reasonableness of the fee.

[Revised: 08-24-2011]