Harvard Farms, Inc. v. National Cas. Co.
| Decision Date | 20 April 1993 |
| Docket Number | No. 92-533,92-533 |
| Citation | 617 So.2d 400 |
| Parties | 18 Fla. L. Week. D1039 HARVARD FARMS, INC., etc., et al., Appellants, v. NATIONAL CASUALTY COMPANY, Appellee. |
| Court | Florida District Court of Appeals |
Richard A. Sherman and Rosemary Wilder, Ligman, Martin & Evans, Fort Lauderdale, for appellants.
Jorden, Schulte & Burchette, Elizabeth M. Bohn and W. Barry Blum, Miami, for appellee.
Before HUBBART, NESBITT and BASKIN, JJ.
This is another of the seemingly never-ending appeals from orders awarding attorney's fees under the lodestar approach. Here, we are required to determine whether the trial court erred in refusing to even consider the risk multiplier in fixing a fee based upon an oral contingency fee agreement between the attorney and client. In the present case, the trial court declined to consider such a risk multiplier on the ground that the oral contingency fee agreement is "unconscionable and void under Florida Law and cannot be used as a basis for increasing the lodestar amount of attorney's fees by a Contingency Risk Multiplier." In so ruling, the trial court cited FIGA v. R.V.M.P. Corp., 681 F.Supp. 806 (S.D.Fla.1988), which relied on rule 4-1.5(D)(1), (2) (1987) of the Rules Regulating the Florida Bar (renumbered rule 4- 1.5(f)(1), (2)), to hold the oral contingency fee agreement at issue unconscionable and void, and therefore not able to support a contingency risk multiplier. The rule requires contingency fee agreements to be reduced to a writing signed by the client and a lawyer for the law firm representing the client. For the following reasons we disagree with the trial court's analysis and reverse the order with directions, on remand, to at least consider the risk multiplier.
Our determination is squarely based upon the preamble to chapter 4 of the Rules Regulating the Florida Bar entitled "Rules of Professional Conduct," which provides in pertinent part:
Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer's self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty.
Robert A. Shupack, P.A. v. Marcus, 606 So.2d 466 (Fla. 3d DCA1992) () (Schwartz, C.J. dissenting) (quoting Mark Jay Kaufman, P.A. v. Davis & Meadows, P.A., 600 So.2d 1208, 1211 (Fla. 1st DCA1992)). 1
Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990) holds that once a trial court arrives at the lodestar figure in setting a reasonable attorney's fee, the court " 'must consider whether or not to apply' the contingency fee multiplier." Id. at 831. Thus, a contingency fee multiplier, although not mandatory, must at least be considered by trial judges in contingency fee cases.
We acknowledge that the Quanstrom decision is unclear as to whether the holding applies to oral contingency fee agreements. However, any doubt was removed by the supreme court's decision in Department of Administration v. Ganson, 566 So.2d 791 (Fla.1990) (Ganson II ). Ganson II reversed a first district decision which clearly dealt with an oral contingency agreement similar to the one in the present case. Ganson v. Department of Admin., 554 So.2d 522 (Fla. 1st DCA1989) (Ganson I ). In Ganson II the supreme court, without disallowing the oral contingency fee agreement in that case, relied on Quanstrom...
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