Florida Appeals Court Decision Casts Doubt On Attorney's Fees

A recent, seemingly innocuous decision by Florida's 1st District Court of Appeals, simply affirming a lower courts ruling on attorneys' fees in workers' compensation cases, may have created more questions than it answered. The appeal, in the case of Altstatt v. FL Dept of Agriculture, centered on the original motion by the claimants attorney to have the judge in the presiding trial review and approve defense counsels billing for the case. In Florida, claimant's attorneys have been routinely required to have their billing approved by the court, while defense counselors in practice have not had to do so.

The motion and subsequent appeal were based on Florida Statutes section 440.105(3)(c), which states; “It is unlawful for any attorney or other person, in his or her individual capacity or in his or her capacity as a public or private employee, or for any firm, corporation, partnership, or association to receive any fee or other consideration or any gratuity from a person on account of services rendered for a person in connection with any proceedings arising under this chapter, unless such fee, consideration, or gratuity is approved by a judge of compensation claims or by the Deputy Chief Judge of Compensation Claims.”  The appellant in Altstatt believed that the statute is intended for all attorneys, not just claimant's attorneys.

While the 1st District Court did not agree, and affirmed the lower courts initial denial, they did, in their issuing opinion, make a statement that certainly raises legitimate questions as to the intent of the law. The court essentially felt it was “unnecessary to decide whether the legislature intended section 440.105(3)(c) to apply to requests for payments made by attorneys representing employers, carriers and servicing agents, as well as to those made by attorneys representing claimants.” However, as part of their summation, the court made this statement; “It is, however, clear that section 440.105(3)(c), Florida Statutes (2008), upon which claimant relied as authority for his motion does not require approval of any attorney's fee by the judge of compensation claims; rather, it merely makes it unlawful to receive a fee unless that fee has been approved.”

Strictly interpreted the court says that for “any” attorney the law does not require approval of a fee, it is just illegal to accept a fee without approval. Can anyone say “pro bono”?

The courts have based their actions to date on an Administrative Order written by Chief Judge Shirley Walker in March of 1994. In that order Judge Walker determines that (then) section 440.105(3)(b) was to be interpreted “to require judicial approval of contingent attorney's fees, payable by , or on behalf of, the claimant to the claimant's attorney”. She based this largely on the prior and continued existence of FL Statute 440.34. Judge Walker noted that 440.34, which deals entirely with claimants attorney payment, existed prior to the adoption of 440.105(3)(b) in 1994, and essentially that no legislative wording existed to require judicial approval of defense fees.

It would seem that the potential for tremendous conflict resides in this issue, as 440.105(3)(c), seems to make no distinction between the two sides. Even the 1st District Court, in declining to grant the appeal, did not attempt to belay that point. Their summary used the term “any” attorney's fee, not claimant's or defense.

So, which way does Florida go on this issue? The ramifications of a reinterpretation of the statutes could be immense. It is hard to fathom 15 years of workers' compensation defense billing that should have been submitted for approval, but was not. Are workers' compensation defense attorneys accepting a fee without approval? Some feel that statute 440.105(3)(c) and the 1st DCA's own wording may indicate that to be the case. Clearly, no one benefits from a cloud hanging over this issue. Either the legislature or the courts in the state should work to define the true intent of this statute.

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