According to Florida Bar Staff Opinion 28724, a Florida lawyer may not hire separate case workers/experts to resolve the healthcare provider’s reimbursement claims or liens and pass them off as a cost to the client. This is true even if the client signs a fee contract with the lawyer that allows this.
The reasoning of the Staff opinion is as follows:
In 2009, the Professional Ethics Committee affirmed a staff opinion (Florida Bar Staff Opinion 28724) concluding the following:
Generally, the scope of representation agreed to by a lawyer and client is a contractual matter between that lawyer and client. Nevertheless, a lawyer cannot limit the scope of representation with a client to exclude a responsibility that is required in order to provide competent representation to the client. See Rule 4-1.2(c). A personal injury lawyer customarily attempts to negotiate down a client’s liens against the settlement. The personal injury lawyer cannot charge a fee beyond that permitted in Rule 4-1.5(f)(4) for successfully negotiating down the liens as that may be an excessive fee.
The Florida Bar ethics hotline advised me that:
This opinion was affirmed as amended by the Professional Ethics Committee at its June 26, 2009 meeting. The Board of Governors voted to defer review of this opinion on September 25, 2009, and instead a special committee was appointed to review the matter. That special committee proposed an amendment to Rule 4-1.5 to address charging a fee for medical lien resolution services, which was filed with the Supreme Court of Florida in October 2010. In In Re: Amendments To The Rules Regulating The Florida Bar (Biannual Report),37 Fla. L. Weekly S275, SC10-1967 (April 12, 2012), the Court declined to adopt the bar’s proposed rule on medical lien resolution. However, the court did state: “Indeed, we take this opportunity to clarify that lawyers representing a client in a personal injury, wrongful death, or other such case charging a contingent fee should, as part of the representation, also represent the client in resolving medical liens and subrogation claims related to the underlying case.
Therefore, based on the above case and the staff opinion, Rather, based on the recent court decision, this should be part of the attorney’s representation and included in the contingent fee.
I do not like this Ethics staff opinion but I follow it. I think this opinion does a disservice to personal injury clients because sometimes it takes a lien resolution “expert” to sue a hospital to get the bill further reduced after the injury lawyer has worked tirelessly but reached an impasse in negotiations with the hospital or medical provider.
I try my hardest to get my client’s bills and liens reduced even if it may take months. The majority of Florida lawyers that I know will not sue a hospital to get the medical bills reduced after the personal injury case has been settled. I know of at least one lien resolution law firm that concentrates in suing hospitals or medical providers in Florida in an effort order to get the client’s bills reduced if the law firm believes the bill is unreasonable.
A Florida lawyer handling a personal injury case can still hire a case worker to get a client’s bill further reduced, but the expense of the case worker must be paid from the attorney’s share of the settlement and not the client’s share. I do not know of any Florida attorneys that would be willing to hire a case worker or law firm to further reduce the client’s bill and pay the case worker or law firm with the attorney’s own money. If you find an attorney who will do this, you have found a diamond in the rough.
I would venture to say that most Florida attorneys do not know that they may not hire separate case workers/experts to resolve the healthcare provider’s reimbursement claims or liens and pass them off as a cost to the client. I say this, in part, because there are lien resolution firms that market their services to Florida injury lawyers and many unsuspecting lawyers may believe that these lien resolution firms know and follow Florida law. I also know of Florida attorneys that concentrate in personal injury that are unaware of the above opinion and case.