Friday, April 8, 2011

For The Sake Of The Children

In a wrongful death action in which surviving children were represented by separate counsel, the Florida Supreme Court remanded for a determination of proper legal fees. The court concluded:

As we explained in Wiggins, in those circumstances where “all of the survivors have a commonality of interest and a single attorney can represent those interests,” id. at 448, that single attorney will be entitled to attorney’s fees based on the entire recovery. However, where there is no commonality of interest among the survivors, the personal representative’s attorney cannot represent all of the survivors without their consent. Id. at 450 (citing Rule Regulating the Florida Bar 4-1.7, which prohibits an attorney from representing adverse interests unless specific requirements are met, including that each affected client gives informed consent to such representation). Further, in those circumstances where survivors have competing claims and are represented by separate attorneys, the fee payable to the personal representative’s attorney and the survivors’ separate counsel will be determined by the work performed by each. For example, where two competing survivors are represented by separate attorneys throughout the litigation and both successfully prosecute a claim to judgment, then the fees should ordinarily be awarded out of the survivor's respective recoveries.

The result:

In the instant case, it is unclear what part, if any, the Wagner firm played in securing the overall settlement. There is also no record evidence that the Wagner firm secured any increase in the settlement recovery for Larry and Robert. Accordingly, we conclude that the personal representative’s attorney KLG should be compensated out of the total settlement proceeds, reduced by the amount necessary to reasonably compensate the Wagner firm for the work they performed in representing Larry and Robert in the proceedings.

(Mike Frisch)

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