The Florida Bar

Ethics Opinion

Opinion 65-38

June 15, 1965
Advisory ethics opinions are not binding.
It is not improper for a workmen’s compensation claimant’s attorney to invoke the statutory
penalty for late payment of an award. Neither is it necessarily improper for the attorney to
withhold assertion of the penalty, where the obligor’s delay was slight and occasioned merely by
administrative oversight.


Chairman Smith stated the opinion of the committee:
A member of The Florida Bar asks our opinion as to the following question:
Is it incumbent upon a Claimant’s attorney to prosecute the claim for
penalties if the draft is not paid within 14 days as noted in Section 440.20(6) or
conversely stated, is an attorney remiss in his duty if he does not actively press for
the penalty?
In the opinion of this Committee it is not unethical for the attorney, under ordinary
conditions, to prosecute the claim for penalty provided for by law. Canon 15 would appear to
require such action. The inquiry therefore is answered in the affirmative. It is clear, however, that
common sense and honest judgment must be employed. Certainly a lawyer is not guilty of a
breach of ethics if he fails to claim a penalty technically due because of brief delay occasioned
by administrative oversight. And in the unusual case where the circumstances are such that it
would be morally unjust to invoke the penalty, the lawyer would be justified in declining to
pursue the claim and further to represent the client.