Must a workers' compensation claimant's lawyer always pursue the statutory penalty for a late-paid award, and can the lawyer choose not to?

Plain-English summary

A member asked whether a claimant's attorney must prosecute a claim for penalties when a draft is not paid within 14 days under Section 440.20(6) of the Florida Statutes, or, put another way, whether the attorney is remiss in his duty if he does not actively press for the penalty.

The committee answered the inquiry in the affirmative: under ordinary conditions it is not unethical for the attorney to prosecute the claim for the penalty provided by law, and Canon 15 would appear to require such action. The committee added that common sense and honest judgment must be employed. A lawyer is not guilty of a breach of ethics if he fails to claim a penalty technically due because of brief delay occasioned by administrative oversight. And in the unusual case where the circumstances are such that it would be morally unjust to invoke the penalty, the committee said the lawyer would be justified in declining to pursue the claim and in declining further to represent the client.

Currency note

This opinion was issued in 1965, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. The opinion applied former Canon 15 of the Canons of Professional Ethics; a lawyer's duty of diligence is now governed by Rule 4-1.3 of the Rules Regulating The Florida Bar (Model Rule 1.3), and the statute it discusses may have been amended. 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 Treat this page as historical context, not current guidance.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: Must a claimant's lawyer pursue the statutory penalty for a late-paid award?

A: The committee said that under ordinary conditions it is not unethical to prosecute the claim for the penalty and that Canon 15 would appear to require such action, so it answered the question in the affirmative.

Q: Can the lawyer decline to pursue the penalty?

A: Yes in limited circumstances. The committee said a lawyer is not in breach for failing to claim a penalty technically due because of a brief delay from administrative oversight, and where invoking the penalty would be morally unjust the lawyer would be justified in declining to pursue it and in declining further to represent the client.

Background and rules framework

The opinion applied former Canon 15 of the Canons of Professional Ethics, concerning the manner in which a lawyer should support a client's cause. A lawyer's duty of diligence is now addressed by Rule 4-1.3 of the Rules Regulating The Florida Bar (Model Rule 1.3). The penalty discussed appears at Section 440.20(6) of the Florida Statutes as it then read.

Citations and references

Rules of Professional Conduct:

• Canon 15 [Canons of Professional Ethics; how far a lawyer may go in supporting a client's cause; see current Rule 4-1.3]

Statutes:

• F.S. 440.20(6) (workers' compensation late-payment penalty, as cited in the opinion)

See also

• FL Bar Ethics Op. 66-42: Discharged Workmen's Compensation Attorney's Fee Petition
• FL Bar Ethics Op. 72-36: Filing Suit to Toll Limitations for a Missing Client

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-65-38/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-65-38.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 65-38
June 15, 1965
Advisory ethics opinions are not binding.
It is not improper for a workmen's compensation claimant's attorney to invoke the statutory penalty for late payment of an award. Neither is it necessarily improper for the attorney to withhold assertion of the penalty, where the obligor's delay was slight and occasioned merely by administrative oversight.
Canon: 15
Statute: F.S. 440.20(6)
Chairman Smith stated the opinion of the committee:
A member of The Florida Bar asks our opinion as to the following question:
Is it incumbent upon a Claimant's attorney to prosecute the claim for penalties if the draft is not paid within 14 days as noted in Section 440.20(6) or conversely stated, is an attorney remiss in his duty if he does not actively press for the penalty?
In the opinion of this Committee it is not unethical for the attorney, under ordinary conditions, to prosecute the claim for penalty provided for by law. Canon 15 would appear to require such action. The inquiry therefore is answered in the affirmative. It is clear, however, that common sense and honest judgment must be employed. Certainly a lawyer is not guilty of a breach of ethics if he fails to claim a penalty technically due because of brief delay occasioned by administrative oversight. And in the unusual case where the circumstances are such that it would be morally unjust to invoke the penalty, the lawyer would be justified in declining to pursue the claim and further to represent the client.