Can a lawyer disputing his fee with a subrogated insurer tender the funds into court for the judge to set the fee?

Plain-English summary

A member represented a plaintiff in a personal injury case from an automobile accident, and during the proceedings the subrogated insurance carrier asked, with the client's consent, to include its property damage claim. Judgment was entered for the client for $20,000, and the lawyer received two checks, one to him and the client, and one to him, the client, and the insurer for $1,700, the amount of the claim. The client endorsed the latter check; the lawyer told the carrier that on its endorsement he would deduct his fees and costs and remit the balance. The carrier offered him $150 in full payment; he requested twenty-five percent of the recovery, which was refused, and he filed suit in equity, tendered the check into the registry of the court, and asked the court to determine the proper fee. The carrier's attorneys told him they had been asked to defend vigorously and to initiate grievance proceedings against him.

The committee's opinion was that the lawyer had acted in a perfectly ethical manner and that his requested fee and actions were proper in view of Canons 12, 13, and 14, and that he was entirely within his rights in retaining the check and demanding twenty-five percent as his fee.

Currency note

This opinion was issued in 1962, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canons 12, 13, and 14 of the Canons of Professional Ethics; a lawyer's fee and the handling of disputed funds are now addressed by Rules 4-1.5 (fees), 4-1.15 (safekeeping property), and 5-1.1 (trust accounts) of the Rules Regulating The Florida Bar (Model Rules 1.5 and 1.15). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules before relying on any specific requirement mentioned here.

Common questions

Q: Was it ethical to put the disputed funds before the court?

A: Yes. The committee said tendering the money into the registry of the court with a request for a judicial determination of the fee was a perfectly ethical course.

Q: Did the committee approve the lawyer's twenty-five percent fee request?

A: The committee said his requested fee and actions were proper under Canons 12, 13, and 14, and that he was within his rights retaining the check and demanding twenty-five percent.

Q: How did the committee treat the carrier's threat of a grievance?

A: It did not change the analysis. The committee concluded the lawyer had acted ethically despite the carrier's stated intent to defend vigorously and to seek grievance proceedings.

Background and rules framework

The opinion applied former Canons 12, 13, and 14 of the Canons of Professional Ethics, concerning the lawyer's fee and the handling of funds. Those subjects are now addressed by Rules 4-1.5, 4-1.15, and 5-1.1 of the Rules Regulating The Florida Bar (Model Rules 1.5 and 1.15). The committee approved resolving the fee dispute by a tender into court.

Citations and references

Rules of Professional Conduct:

• Canons 12, 13, 14 [Canons of Professional Ethics; see current Rules 4-1.5, 4-1.15, 5-1.1]

See also

• FL Bar Ethics Op. 62-15: Charging Fees From One Case Against Another's Proceeds

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-61-33/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-61-33-1.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

FLORIDA BAR ETHICS OPINION
OPINION 61-33
January 18, 1962
Advisory ethics opinions are not binding.
In a dispute with a subrogated insurer about the value of his services for recovering the subrogee's claim along with the plaintiff's, a lawyer is acting in a perfectly ethical manner in tendering the money into the court with a request for judicial determination of the fee.
Canons: 12, 13, 14
Chairman Holcomb stated the opinion of the committee:
The Committee on Professional Ethics of The Florida Bar has considered a question of a member of The Florida Bar in which he states that he represented a plaintiff in a personal injury from an automobile accident and during the proceedings the subrogation insurance carrier requested the inclusion of its claim for property damage. This was added with the consent of the client. Judgment was rendered in favor of his client for $20,000 and two checks were received by him, one payable to him and the client and the other to him, the client and the insuror for $1,700, being the amount of the claim. This latter check was endorsed by his client and he informed the insurance carrier of this fact and that upon its endorsement he would deduct his fees and costs and remit the balance. Whereupon the insurance carrier offered him $150 in full payment of his services. He requested a fee of twenty-five percent of the recovery, which was refused, and he then filed suit in equity and tendered the check into the registry of the court, requesting the court to determine the proper fee.
He states that he has been contacted by attorneys for the insurance carrier, who stated that their client requested them to offer vigorous defense to his claim and further asked them to initiate grievance committee proceedings against him before The Florida Bar.
In our opinion, he has acted in a perfectly ethical manner and the requested fee and actions have been proper in view of Canons 12, 13 and 14. We feel that he is entirely within his rights in retaining the check and demanding twenty-five percent thereof as his fee.