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By Debra P. Klauber, Esq.
NEITHER LAWYER, NOR LAW FIRM, WERE ENTITLED TO PARTICIPATION/REFERRAL FEE ABSENT CLEAR COMPLIANCE WITH RULE 4-1.5.
Where a lawyer refers a matter to another attorney (here, a qui tamaction), the referring lawyer is only entitled to a “participation” fee (often referred to as a referral fee, which is generally 25%) if there is strict compliance with Rule 4-1.5. That Rule specifically requires: (1) an agreement reduced to a written contract; (2) signed by each participating attorney or law firm; (3) that each attorney assume legal responsibility to the client for the performance of the services in question; and (4) that the client be furnished with a copy of that written contract. In a special concurrence, one judge also found an attorney’s “participation” (which consisted of spending a few hours a year checking on the progress of the case), and the law firm’s “participation” (in employing that lawyer), insufficient under the Rule which, itself, is designed to prevent “participation fees” from becoming “kickbacks.”
FOURTH DISTRICT CLARIFIES THAT SECTION 57.105(3)(C) PERMITS THE FILING OF A SECTION 57.105(1)(B) MOTION SOLELY AGAINST AN ATTORNEY, AND NOT THE CLIENT.
Davis v. Bailynson, Case No. 4D18-1040, 44 Fla. L. Weekly D328 (Fla. 4thDCA Jan. 30, 2019).
At its most basic, section 57.105 of the Florida Statutes allows a party to seek sanctions against an opposing party and its counsel if it is determined that a claim or defense is not supported by the material facts or the application of then-existing law to those facts. In the 2010 amendment to the statute, the Florida Legislature added that sanctions may not be awarded against a represented partyif the basis for the award is that the claim or defense is not supported by the law. Under such circumstances, onlya party’s attorney may be ordered to pay the opposing party’s fees. Thus, where the litigation privilege barred one of the claims presented, as a matter of law, the Fourth District concluded that a fee award against the attorney alone was proper.
IN THE PERSONAL INJURY CONTEXT, FLORIDA’S APPELLATE COURTS DISTINGUISH VIDEO EVIDENCE OF THE INCIDENT ITSELF FROM POST-INCIDENT SURVEILLANCE WHEN DETERMINING WHETHER IT CAN BE WITHHELD FROM THE PLAINTIFF UNTIL HIS OR HER DEPOSITION HAS CONCLUDED.
The Florida Supreme Court has previously held that a defendant may properly withhold surveillance video of a purportedly injured plaintiff until his or her deposition is concluded. The Florida appellate courts, however, distinguish surveillance video of the plaintiff taken after the subject accident from video of the actual incident in question. Accident scene photos and security video of the incident itself cannot be withheld from disclosure until after the plaintiff’s deposition is taken. The cases do leave open the opportunity for a trial court to use its discretion to allow such surveillance to be withheld if there are specific factual circumstances in a particular case that warrant such a ruling.
APPELLATE COURTS HAVE LIMITED REVIEW OF ORDERS ADDRESSING A PLAINTIFF’S ENTITLEMENT TO AMEND A COMPLAINT TO ASSERT A CLAIM FOR PUNITIVE DAMAGES.
A trial court’s ruling allowing a plaintiff to amend a complaint to assert a claim for punitive damages can be a turning point in litigation and parties often seek immediate appellate review. It should first be reiterated that an appellate court lacks jurisdiction to review the sufficiency of the evidence that is proffered to support a claim for punitive damages. So long as the trial court complies with the applicable procedural requirements, there is no immediate appellate or certiorari jurisdiction to second-guess the ruling. Melendez v. Eversole, Case No. 1D18-3534, 44 Fla. L. Weekly D491 (Fla. 1stDCA Feb. 18, 2019). That said, the appellate courts can, and will, review such orders where the trial court fails to follow the correct procedure by, for example, failing to make findings identifying the evidence that was deemed sufficient to support the claim for punitive damages, or refusing to consider the counter-arguments raised by the defense.