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The Florida Bar v. Doe, 550 So.2d 1111, 14 Fla. L. Weekly 490

Facts

John Doe was hired by T.W. to represent her in a personal injury case, and a contingent fee employment contract was signed that included a 'discharge clause.' This clause allowed T.W. to discharge Doe only after paying a significant fee, which raised ethical concerns. After receiving advice from The Florida Bar regarding the contract's deficiencies, Doe modified the contract but did not eliminate the discharge clause. T.W. eventually discharged Doe, who then filed a motion to withdraw and sought payment based on the original contract despite the ethical implications.

Included within the referee's report are the following findings of fact: On March 25, 1987 the respondent was hired by one T.W. to represent her in a personal injury case. T.W. signed a contingent fee employment contract prepared by respondent. The contract included a 'discharge clause' which permitted the client to discharge respondent only after paying him the greater of three hundred fifty dollars per hour for all the time spent on her case or forty percent of the greatest gross amount offered in settlement.

Issue

Did John Doe's actions in including a 'discharge clause' in his contingency fee contract and filing a lien against a former client constitute ethical violations warranting disciplinary action?

Did John Doe's actions in including a 'discharge clause' in his contingency fee contract and filing a lien against a former client constitute ethical violations warranting disciplinary action?

Rule

An attorney cannot impose a penalty for a client's right to discharge representation, as this is contrary to the policy of fostering public confidence in the legal profession.

An attorney cannot exact a penalty for a right of discharge.

Analysis

The court analyzed the ethical implications of the discharge clause in Doe's contract, noting that it was designed to intimidate clients from exercising their right to discharge their attorney. Although the contract itself violated ethical rules, the court found that Doe's conduct did not demonstrate an intention to violate these rules, as he sought ethical advice and modified the contract in response to concerns raised.

The court analyzed the ethical implications of the discharge clause in Doe's contract, noting that it was designed to intimidate clients from exercising their right to discharge their attorney.

Conclusion

The court concluded that while John Doe's contract contained an ethical violation, the misconduct was minor and warranted only a private reprimand rather than a public one. Doe was ordered to pay costs associated with the proceedings.

The court concluded that while John Doe's contract contained an ethical violation, the misconduct was minor and warranted only a private reprimand.

Who won?

The Florida Bar prevailed in the case, as the court found that John Doe had committed minor misconduct by including an unethical clause in his contract, although the punishment was mitigated to a private reprimand.

The Bar charged respondent with having violated rule 3–4.3 of the Rules Regulating The Florida Bar (conduct contrary to honesty and justice); 4–1.5(A) (entering into agreement charging excessive fee); 4–1.5(D)(4)(a)(1) (failure to include mandatory provision regarding statement of client's rights); 4–1.5(D)(4)(b)(1) (entering into contingency contract which potentially exceeds fee ceiling); 4–1.5 (entering into agreement making the return of property contingent upon payment); and 4–1.16 (comment) (charging excessive fee as penalty for discharge).

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