Can a Florida lawyer charge a property owner a contingent fee in a condemnation case on top of the attorney's fee the court awards under the eminent domain statute?

Plain-English summary

A lawyer asked whether, in an eminent domain case, the property owner's attorney could charge a contingent fee on the portion of the recovery exceeding the condemning authority's original estimate of value while also recovering the statutory fee paid by the condemning authority. The committee answered that Canon 13 permitted a contingent fee where sanctioned by law and reasonable under all the circumstances, and that it knew of no law precluding a contingent fee arrangement in a condemnation case.

On the central question, the committee divided. Two members concluded that the court's establishment of a "reasonable" fee under the statute should ordinarily preclude charging a larger fee, since the larger fee would be unreasonable. The majority disagreed, reasoning that a judicial declaration that one fee is reasonable does not make a larger fee necessarily unreasonable, because reasonableness covers a range. The committee saw no objection to the arrangement so long as the other provisions of Canon 13 were observed and the agreement was disclosed to the court, while cautioning that a marked variation from the court-set fee would raise serious questions about reasonableness.

Currency note

This opinion was issued in April 1967, before The Florida Bar's adoption of the 2006 revisions to the Rules of Professional Conduct. It applied the former Canon 13 on contingent fees. Lawyer fees, including contingent fees and the reasonableness factors, are now governed by Rule 4-1.5 of the Rules Regulating The Florida Bar (Model Rule 1.5). The eminent domain fee statute it cited, Section 73.091, Florida Statutes (1965), has since been amended. Subsequent rule and statutory amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules and statute before relying on any specific requirement mentioned here.

Common questions

Q: Did the opinion allow a contingent fee in an eminent domain case at all?

A: Yes. The committee said Canon 13 permitted a contingent fee where sanctioned by law and reasonable, and it was aware of no provision of law precluding such an arrangement in a condemnation case.

Q: Could the lawyer charge the contingent fee in addition to the fee the court awarded by statute?

A: The majority said yes, so long as the total fee was reasonable under all the circumstances and the agreement was disclosed to the court. It reasoned that a fee the court set as reasonable did not make a larger fee necessarily unreasonable.

Q: Was there any limit on the size of the added fee?

A: The committee cautioned that a marked variation in the total fee from the amount established by the trial court would be enough to raise serious questions about the reasonableness of the fee.

Background and rules framework

The opinion applied the former Canon 13, which permitted contingent fees where sanctioned by law and reasonable under all the circumstances, subject to the supervision of the court. Lawyer fees and the reasonableness factors are now addressed by Rule 4-1.5 of the Rules Regulating The Florida Bar; the Model Rule analogue is Rule 1.5. The opinion read Canon 13 against the eminent domain fee statute, Section 73.091, Florida Statutes (1965).

Citations and references

Rules of Professional Conduct:

• Canon 13 [Canons of Professional Ethics; see current Rule 4-1.5]

Statutes:

• Section 73.091, Florida Statutes (1965) (reasonable attorney's fee in eminent domain)

Other authorities cited:

• MacKinnon, Contingent Fees for Legal Services (treatise)

See also

• FL Bar Ethics Op. 87-3: Divorce Fee Contingencies
• FL Bar Ethics Op. 70-12: Criminal Fees and Secured Notes
• FL Bar Ethics Op. 68-19: Fee Split With a Witness

Source

• Landing page: https://www.floridabar.org/etopinions/etopinion-67-1/
• Original PDF: https://www-media.floridabar.org/uploads/2017/04/FL-Bar-Ethics-Op-67-1.pdf

Original opinion text

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

FLORIDA BAR ETHICS OPINION
OPINION 67-1
April 5, 1967
Advisory ethics opinions are not binding.
So long as the total fee is reasonable and the arrangement is disclosed to the court, there is no ethical objection to the charging of a contingent fee in a condemnation case in addition to the fee awarded by the court.
Canon: 13
Chairman MacDonald stated the opinion of the committee:
The question upon which our opinion is based is stated by the inquirer as follows:
Is it proper in eminent domain cases for the defendant's (property owner) attorney to charge a contingent fee or percentage of the recovery on that portion of the recovery which exceeds the condemning authority's original estimate of value, and at the same time recover a fee from the condemning authority as provided by statute and the constitution?
Canon 13 permits the charging of a contingent fee where sanctioned by law, provided it is reasonable under all circumstances of the case, and is subject to the supervision of the court. We are aware of no provision of law precluding a contingent fee arrangement between attorney and client in a condemnation case. Indeed a recent comprehensive treatise, Contingent Fees for Legal Services, MacKinnon, concludes that the use of such contingent fee arrangements in this field is customary (page 28). It, of course, is manifest that, unlike many instances wherein such contingent fee agreements are utilized, the probability of no recovery whatever, and thus no fee, is remote. Hence, the reduction of uncertainty on this score is necessarily one factor to be considered in the determination of what would be reasonable under all circumstances of a condemnation case.
Having concluded that there is no impropriety per se in the use of a contingent fee in a condemnation case, we come to the immediate issue posed here. This in essence is whether under any circumstances a contingent fee could be superimposed upon a reasonable fee awarded by the court under the statutory procedures currently in effect in this state, Section 73.091, Florida Statues (1965). As noted, a contingent fee must be reasonable under all the circumstances. The cited statute provides that "a reasonable attorney's fee" will be assessed by the court. Two members of the Committee conclude that the establishment of a reasonable fee by the court should ordinarily preclude charging of a more substantial fee on the ground that such fee would necessarily be unreasonable. The majority disagree, believing that the judicial declaration that one fee is reasonable is by no means a declaration that another and larger fee is necessarily unreasonable. Of necessity the concept of reasonableness is broad and should ordinarily extend to a range of fees. For example, an appeal by either party from the establishment of a reasonable fee on the basis that a larger fee would be reasonable or that a smaller fee would be reasonable could easily be affirmed by an appellate court on the basis that the mere fact that its members or some of them might have established a different fee were they the trial judge is immaterial.
Thus we see no objection to the proposed arrangement so long as the other provisions of Canon 13 are observed and the fee agreement is disclosed to the court. Needless to say, a marked variation in the total fee from that established by the trial court would be sufficient to raise serious question as to the reasonableness of the fee.