20 Fla. L. Weekly Supp. 769c
Online Reference: FLWSUPP 2008DRODInsurance — Personal injury protection — Attorney’s fees — Withdrawing attorney — Law firm is entitled to pre-conflict attorney’s fees after voluntarily withdrawing from representation of medical providers where firm withdrew to avoid future ethical violation after hiring attorney who had previously done legal work for insurer
UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. MEDICAL CONSULTANTS OF SOUTH, FLORIDA (a/a/o Diana Rodriguez), Appellee. Circuit Court, 17th Judicial Circuit (Appellate) in and for Broward County. Case No. CACE-11-021942(09). L.C. Case No. COCE-07-019375(54). Gary Cowart, Judge. Consolidated with: STAND UP MRI OF MIAMI, INC. (a/a/o Ana Moreno), Appellant, v. UNITED AUTOMOBILE INSURANCE COMPANY, Appellee. Case No. CACE 11-030762(09). L.T. Case No. COCE-08-002722(55). April 29, 2013. Order on Motion for Rehearing June 6, 2013. Sharon Zeller, Judge. Counsel: Michael J. Neimand, Office of the General Counsel, Trial Division, Miami, for Appellant. Julie H. Littky-Rubin, Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, West Palm Beach, for Appellee.
OPINION OF THE COURT
(LUZZO, Judge.) THIS CAUSE came before the court, sitting in its appellate capacity, upon the timely appeal of the two captioned cases, which were consolidated on January 27, 2012. This Court, having considered the briefs from both parties, the record on appeal, applicable case law, and being otherwise fully advised in the premises, finds as follows:
The Weinstein Law Firm (“The Firm”) entered into a contingency fee agreement to represent both of the plaintiffs/ assignees against United Automobile Insurance Company (“UAIC”) in the trial court. The Firm, during the time that it was representing the plaintiffs hired an associate who had formerly done legal work for UAIC. UAIC moved to disqualify The Firm pursuant to Rule 4-1.10(b) and The Firm agreed to withdraw from the two cases sub judice. In both cases, the plaintiffs prevailed against UAIC and the trial judges awarded entitlement to attorney fees to the plaintiffs’ successor attorney, the law firm of Boyer and Freeman. In both cases The Firm filed a motion for “pre-conflict” attorney fees, however, the court in each of the trial cases ruled differently. The Honorable Lisa G. Von Tefs granted entitlement in COCE-07-019375 and the Honorable Sharon Zeller denied The Firm’s entitlement to attorney fees in case COCE-08-002722.
Plaintiff Medical Consultants and UAIC now appeal on the issue of whether an attorney is entitled to pre-conflict fees after voluntarily withdrawing if the reason for the withdrawal was to remain in compliance with the Rules of Professional Conduct. The standard of review that the appellate court must employ when evaluating a pure question of law such as this, is de novo. Santini v. Cleveland Clinic Florida, 65 So. 3d 22 (Fla. 4th DCA 2011) [36 Fla. L. Weekly D1011a].
The Firm argues that the law allows attorneys who represent ultimately successful “PIP clients” on a contingency fee, to collect quantum meruit fees for the work which further the client’s cause, before the ethical conflict forcing the withdrawal arose.
In Hill v. Douglass, the court explained that an attorney’s right to recover a fee does terminate when the attorney realizes (or should have realized) that he cannot ethically represent his client’s interests. Hill v. Douglass, 111 So. 2d 1 (Fla. 1972). The Fifth District Court of Appeal in James T. Butler, P.A. v. Walker, found that where an attorney ultimately had to withdraw based upon a conflict that arose during litigation, the attorney was entitled to receive a fee for the time and effort expended prior to the development of the conflict. James T. Butler, P.A. v. Walker, 932 So. 2d 1218 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D1839a]. The Butler court used Hill to support its conclusion that attorneys are entitled to recover a reasonable fee for work performed prior to learning in good faith that a conflict has arisen. Further, the court explained:
Thus, Hill stands for the proposition that an attorney is entitled to receive a feefor the work performed up to the time the attorney realizes or should have realized that a conflict of interest arose which would preclude him from continuing to represent his clients. As such, Butler is clearly entitled to recover the fees earned up until the date the conflict of interest . . .
James T. Butler, P.A. v. Walker, 932 So. 2d 1218 (Fla. 5th DCA 2006) [31 Fla. L. Weekly D1839a].
The gravamen of UAIC’s argument relies on the Faro case where the attorney voluntarily chose to stop representing its client and thereby forfeited its right to attorney fees. Faro v. Romani, 641 So. 2d 69 (Fla. 1994). In Faro there were “irreconcilable differences” between the attorney and the client, leading the attorney to move to withdraw. After the client obtained new counsel and settled his claim, the original attorney wanted to impose a charging lien for the fees which accrued as part of his representation. Id. The Florida Supreme Court held it was error to award the withdrawing attorney fees under those circumstances. Id. It reasoned that when an attorney withdraws from representation upon his/her own volition, and the “contingency” has not yet occurred, that attorney forfeits all rights to compensation. Id. Only if the client’s conduct makes the attorney’s continued performance of the contract legally impossible, or if the client would cause the attorney to violate an ethical rule of the Rules Regulating the Florida Bar, is the “voluntarily withdrawing” attorney, entitled to a fee. Id.
The instant cases are distinguishable from Faro as there were no “irreconcilable differences” between The Firm and its clients. Instead, a business decision to hire an attorney who previously worked for a law firm that had represented UAIC resulted in a conflict which drew a motion to disqualify from the insurance company. The Firm agreed to withdraw, not of its own volition, but in order to avoid any future ethical violation.
Also relied upon by UAIC, Carbonic Consultants is also distinguishable. Carbonic Consultants, Inc. v. Herzfeld & Rubin, Inc., 699 So. 2d 321 (Fla. 3rd DCA1997) [22 Fla. L. Weekly D2245a]. In Carbonic Consultants, an attorney decided to leave employment with a law firm and, therefore, the firm’s anti-trust client that he had been representing. The law firm filed a motion to withdraw, noting that it lacked the requisite anti-trust experience to continue representing the client. Id. The Florida Bar, upon being so requested by the firm, issued an opinion concluding that the firm had a right to terminate its representation. Id.
The issue in the case then became one about the firm’s right to collect attorney’s fees for the time incurred for litigating the case before the anti-trust lawyer departed. Notwithstanding the law firm’s attempts in that case to get around the “voluntariness” of the withdrawal to reclaim fees under Faro, the Third District ruled that the withdrawal in the Carbonic Consultants case was voluntary. Id. The court explained that the law firm certainly had the ability to hire another attorney with anti-trust experience to take over the case and any ethical problem arose when the firm decided not to acquire such expertise. Id.
The Firm also cites to the Third District Court of Appeals’ opinion in State Farm Mut. Auto. Ins. Co. v. Gil, 573 So. 2d 90 (Fla. 3d DCA 1991). In Gil, the court found that the withdrawing attorney was entitled to fees for the time the attorney expended in litigating the PIP matter, despite the fact that the attorney no longer represented the insured when the issue was prevailed on. Id. Gil also reminded the trial court that Florida Statutes §§ 627.428 and 627.736, mandate that it is the insured, and not the attorney, who is entitled to recover reasonable attorney’s fees for the successful litigation against the insurer for benefits. Id.
Accordingly, for the above-stated reasons and after due consideration, it is
ORDERED AND ADJUDGED that The Firm was entitled to attorney fees in both Broward County Case No.: COCE-07-019375 and COCE-08-002722. Therefore, the trial court’s ruling on August 12, 2011, granting The Firm’s entitlement to attorney fees in COCE-07-019375, is AFFIRMED. Conversely, the trial court’s October 4, 2011, ruling denying The Firm’s entitlement to attorney fees in COCE-08-002722 is REVERSED and REMANDED for proceedings consistent with this opinion.
Further it is
ORDERED AND ADJUDGED that pursuant to Fla. R. App. P. 9.400(a) and Florida Statute § 627.428 the plaintiffs are entitled to appellate attorney fees, and their motion for same is hereby GRANTED and that the amount of appellate attorney’s fees to which the plaintiffs are entitled is to be determined by the trial court upon REMAND.
ORDER ON MOTION FOR REHEARING
(LUZZO, Judge.) THIS CAUSE came before the court sitting in its appellate capacity, upon UAIC’s “Motion for Rehearing,” filed on May 8, 2013, following this Court’s Opinion signed on April 29, 2013. This Court, having considered the motion, the record on appeal, and applicable case law, finds as follows:
The law is well settled that a motion for rehearing is a means afforded by rule to present to the court some point, which it overlooked or failed to consider by reason whereof its judgment is erroneous. Atlantic Coast Line R. Co. v. City of Lakeland, 115 So. 669 (Fla. 1927). It is not a function of a motion for rehearing to furnish a medium through which counsel may advise the court that they disagree with its conclusion, to reargue matters already considered, to request the court to change its mind as to a matter which has already received the careful attention of the judge, or advancing new or other points or theories not previously relied on. Sherwood v. State, 111 So. 2d 96 (Fla. 3d DCA 1959).
Accordingly, after due consideration and for the above-stated reasons, it is
ORDERED AND ADJUDGED that UAIC’s motion for rehearing is DENIED.
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