Tuesday, June 30, 2009


I just got to thinking about the legal effect of trying to remove the word "reasonable" from the attorney fee section of chapter 440. Does lining out the word really have any meaning? I think not.

Statutes are interpreted every day to get a "reasonable" result. That is what the Supreme Court did in Murray v. Mariner Health. I postulate that the word "reasonable" must be read into every attorney fee statute, whether spelled out or not. It's called 'public policy'. The bar requires all fees to be reasoanble.

In a 1952 decision concerning attorney fees for actions to enforce rights under an insurance contract, the Florida Supreme Court wrote, " This statute (the Insurance Code) is part of the public policy of the State of Florida and its purpose is to discourage the contesting of policies in Florida Courts and to reimburse successful plaintiffs reasonably for their outlays for attorney's fees when a suit is brought against them, or they are compelled to sue, in Florida Courts to enforce their contracts". And, "The business of insurance is affected with a public interest and therefore is subject to reasonable regulation by the legislature", Feller v. Equitable Life Assurance Society, 57 So. 2d 581 (Fla 1952).

The concept of 'reasonableness' permeates Florida law. Presuit investigation in Medical Malpractice actions requires 'reasonable' investigation, and the award of 'reasonable' attorney fees, s.766.206 Fla. Stat. 2004.

The legislature has mandated the inclusion of the word 'reasonable' in contracts that leave the word out! s.672.309 (1) Fla. Stat., "The time for shipment or delivery or any other action under a contract if not provided in this chapter or agreed upon shall be a reasonable time" .

The Third DCA has said, "Where, as here, the fee based purely on the schedule of fees suggested by a local bar association, it violates the rule of Munroe v. Birdsey, 102 Fla. 544, 136 So. 886 (1931) which requires reasonable compensation based upon the services provided, and, A court is without power to measure an attorney's fee except on the basis of quantum meruit or a quid pro quo, and the amount of fees should pose an amount that public standards will approve for the work done, the time consumed, and the skill required. So much may be said of evidence based on schedules that is not shown to bear a proper relation to these elements as they effect the case at hand, Adler v. Schekter, 197 So. 2d 46 (Fla. 3 DCA 1967).

The Supreme Court, citing Lee Engineering v. Fellows said, "We must reverse the fixing of attorney fees on a contingency percentage and remand for further consideration on this issue alone". The factors that go into a fee cannot be eliminated from a fee award, even if stipulated to, Galarneau v. Caroly of Miami, 299 So. 2d 579 (Fla. 1974).

An agreement by a party to pay an attorney's fee of an unspecified amount is an agreement to pay a reasonable attorney's fee, Farnell v. Farquhar Mach Co., 114 So. 506, Fla. 1927), Boyette v. Reliable Finance Co, 184 So. 2d 200 (Fla 2 DCA 1966), Trustees of Cameron Brown v. Tavormina, 385 So. 2d 728 (Fla. 3 DCA 1980).

May the holder of a note which provides for an attorney's fee without specifying a percentage of the principal in event of enforcement be allowed a 10% fee without proof of the reasonableness of the amount of the fee? s. 687.06 Fla. Stat. 1977 authorized the assessment of an attorney's fee of 10% of the principal in every case where no more than 10% was requested by the successful plaintiff. It is often the case that where there is an agreement to pay a reasonable attorney's fee, it is shown that a fee of more than 10% is reasonable. Plaintiff would retain that right but deny to the defendant an opportunity to be heard when the defendant could show that a fee of less than 10% was reasonable. In our view such an interpretation of the statute would render it unconstitutional. The statute as written simply provides that where a party agrees to a fee of 10% or less, that fee need not be proved reasonable, Sepler v. Emanuel, 388 So. 2d 28 (Fla. 1980).

Even pre existing fee arrangements between a lawyer and his client may be disregarded if the result is an unreasonable fee, Pavlik v. Acousti Engineering Co, 448 So. 2d 638 (Fla. 4 DCA 1984). In a concurring opinion Judge Glickstein wrote, "Second, I am as concerned with mechanic's lien claimants' access to the courts as I am for a financially troubled spouse whose husband, the breadwinner, has taken a walk. A short-changed claimant and a financially desperate spouse are often in the same position because the party holding the purse strings removes the purse. It follows that in both situations, the ideal is for the client and the lawyer to draft an agreement that provides for a reasonable hourly rate, with the understanding that the Code of Professional Responsibility may justify collection of more from the adversary, Pavlik, infra.

Last, Davis v. Keeto, 463 So. 2d 368 (Fla 1 DCA 1985 is oft quoted for the proposition that a claimant, without the aid of comeptent counsel would be as helpless as a turtle on its back. The case has much more to offer. The amount of benefits obtained, though an important factor to be considered in setting fees, is not the only factor and does not set the maximum amount that can be awarded as a fee. Were it otherwise, the E/C could resist payment of smaller claims, and those claims would be virtually uncollectable, Davis, infra.

Remember too that Lee Engineering Co. v. Fellows, 209 So. 2d 454 (Fla. 1968) commented that there could be no set mandatory fee schedule in Florida because of the economic disparity from one end of the state to the other making the fee schedule reasonable in one area but unreasonable in others.

The word "reasonable" remains in s.440.34, you just can't see it.