The Florida Bar recognizes that specialists may be required for the contingency fee rule as it pertains to medical liaisons.

The Florida Bar is currently studying the attorney contingency fee rule to address hiring special attorneys to resolve surrogacy issues and medical liens related to personal injury cases. The issue has been presented to the Board of Governors and its approval will affect MSP compliance in Florida.

A special committee informed the board at its May 28, 2010 meeting of the suggested amendments to Rule 4-1.5 and the proposal will return to the board for a vote at its July 23 meeting.

The issue before the committee addresses the question of whether referring the medical ties to a second attorney, who would be paid a reverse contingency fee, would violate the contingency fee cap in the rule itself. The Review Committee of the Board of Professional Ethics was of the opinion that if the total fees paid to both attorneys exceeded the limits of the rule, the problem is evident.

However, they recognized that resolving medical ties has become an increasingly complex area in tort cases. Bringing in an expert could save the client money, even if contingency fee limits are exceeded. Clearly, the ramifications of the new rule can have far-reaching effects on the problems of the Medicare Secondary Payer, including investigation, negotiation and resolution of liens. Jay Cohen, appointed by the Board’s Professional Ethics Review Committee to examine the issue, told the board that the panel recommended adding a new subsection to the rule, such as 4-1.5 (f) (4) (E) .

The proposed new subsection (E) reads:

“The attorneys will include in the contract an explanation of the scope of any subrogation or lien resolution services that the attorney will perform at the conclusion of the main matter. The attorney will not charge additional fees for handling the lien resolution services if those additional fees, when combined with attorney’s fees for handling the main claim, would exceed the contingent fee schedule established in this subdivision. “

If other extraordinary subrogation or lien resolution services are handled by others outside of the main law firm who will charge additional attorney fees or costs to the client, these services will only be provided after obtaining the client’s informed written consent for the fees or additional costs. Any additional fees or costs charged by the other attorneys involved in subrogation or lien resolution services must separately comply with the provision of Rules 4-1.5 (a) to 4-1.5 (e), and if the fees depend on the As a result of the lien resolution, the lien resolution or subrogation fees themselves must also comply with Rule 4-1.5 (f). “

Gary Blankenship, senior editor at The Florida Bar News reported that the proposed comment for the new rule clarifies several related issues, including:

Lawyers taking the personal injury or wrongful death case must state in the contract whether subrogation and lien resolution issues will be handled as part of the contingency contract.

As part of any contingency contract, the attorney has an obligation “to make reasonable efforts to determine the existence of medical ties and subrogation claims, to inform the client of their existence, to make reasonable efforts to negotiate ties that are negotiable, and to disburse the amounts to lien holders and subrogation claimants “as agreed by the client and third parties.

The original attorney must determine whether the additional services needed constitute the practice of law, and if they do, must not refer the matter “to a person other than an attorney or someone who is not authorized to provide the services.

Determine services

Attorneys can also provide other ancillary services, such as estate planning, bankruptcy, financial planning, public benefits planning, and similar jobs that are not part of the contingency contract. According to the proposed comment, “Personal injury attorneys must clearly state in the attorney’s contract that the attorney does not intend to perform such ancillary services, if the attorney does not intend to do so.”

For the purposes of MSP compliance, the new rule appears to require attorneys to state, in writing, whether they will handle Medicare lien issues as part of their client contract and, more importantly, requires attorneys to investigate. the existence of links, including those to Medicare. conditional payments.

Florida, then, is moving solidly in the direction of placing liability on the plaintiff’s attorney in tort cases to protect Medicare’s interests directly, unless the client is informed regarding a referral to another attorney or provider. . With the adoption of the rule, the plaintiff’s attorneys would seem genuinely incapable of putting their heads in the sand regarding MSP compliance in tort cases.

The unwillingness or uncertainty regarding Medicare’s lien interests will now be codified into the attorney’s fee statute itself, requiring the plaintiff to acknowledge lien rights and make some arrangements to address and resolve them. Indeed, the expressed concerns of the Florida Bar regarding the practice of liens put MSP compliance at risk. The July 23 vote will indicate whether the bar is willing to take the lead on what is sure to be a critical issue in Florida’s liability law.