sunEthics

FLORIDA NEWS ARCHIVE - LAWYER ETHICS, Attorney-Client Relationship

Order enforcing settlement agreement reversed due to lack of evidence that counsel had "clear and unequivocal" authority to settle  [Added 7/24/08]

    A trial court entering an order enforcing a settlement agreement.  The parties that opposed entry of the order ("Opponents") appealed, contending that the trial court erred because the party moving for settlement ("Proponent") failed to establish that Opponents' lawyer had authority to settle the case.

    The Second DCA agreed and reversed.  "A party seeking to enforce a settlement agreement bears the burden of showing that an attorney for the opposing party had the clear and unequivocal authority to settle on the client’s behalf."  In this case, the record was "not sufficient to permit a conclusion that [Opponent's] attorney Corso had 'clear and unequivocal' authority to settle."  The only evidence presented by [Proponent] regarding Corso's lawyer's authority was through its counsel, who "testified to having received communications from Corso and his office indicating that Corso had the necessary authority to settle the case."  They did not have personal knowledge regarding what Corso's clients authorized him to do.  Corso's clients, however, "testified that attorney Corso was authorized only to communicate to opposing counsel that his clients were proceeding in good faith toward settlement, not that they had entered into a binding settlement agreement."  (Lawyer Corso did not testify.)

    Consequently, on this record the appeals court stated that it "cannot conclude that [Proponent] met its burden to prove that attorney Corso had clear and unequivocal authority from his clients to settle the case."  Architectural Network, Inc. v. Gulf Bay Land Holdings II, Ltd., ___ So.2d ___ (Fla. 2d DCA, Nos. 2D07-2137, 2D07-2224, 7/18/2008), 2008 WL 2775977.

claim for contingent fee denied because contract was signed by person without authority and minor  [Added 6/4/08]

    An award of attorney's fees to Law Firm was appealed.  The Second DCA reversed.  Law Firm's claim "was based on a contingency fee agreement signed by a person who had no authority to sign the agreement and by a minor, who lacks the capacity to enter into a contract."  Law Firm did not make a claim for alternative relief, such as under a quantum meruit theory, and therefore was "foreclosed from an award of attorney's fees."  Charles v. Klemick and Gampel, P.A., 984 So.2d 563 (Fla. 2d DCA 2008).

"Form" language in retainer agreement is not by itself sufficient to authorize party's lawyer to file proposal for settlement  [Added 4/18/08]

    Lawyer represented Plaintiffs in an auto accident suit against Defendant.  When Lawyer was hired, Plaintiffs "signed a form" authorizing Lawyer to "[n]egotiate settlement, sign on my behalf, any and all documents required to settle my pending personal injury/litigation/workman’s compensation cases including but not limited to: general release, stipulation of settlement; release of claim, settlement drafts, check or any and all documents required for the settlement of my case, whatsoever in nature; . . . ." and giving Lawyer "full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done regarding my personal injury case . . ."

    During the litigation Defendant filed an offer of judgment, and Lawyer then filed a proposal for settlement pursuant to Fla.Stat. sec. 768.79 and Fla.R.Civ.P. 1.442.  Plaintiffs discharged Lawyer.  In the meantime, Defendant accepted the offer that had been made by Lawyer.  Defendant filed a motion to compel settlement, which the trial court granted.

    Plaintiffs appealed, contending that Lawyer's "authority to negotiate settlement did not include the power to file a formal proposal for settlement without the client's knowledge."  (Emphasis in original.)  The Fourth DCA agreed and reversed.

    In order to enforce a settlement offer against Plaintiffs, Defendant was required to show that Lawyer had "a clear and unequivocal grant of authority" from Plaintiffs.  Lawyer's good-faith belief that he had authorization to make the proposal for settlement was not sufficient.

    Furthermore, the language in the retainer agreement was not sufficient to provide the necessary clear and unequivocal authority to file the settlement proposal.  "We do not deem the form document signed at the time counsel is retained as, in and of itself, sufficient to that end.  We note that this is not a circumstance where a power is signed because a client is incapacitated or unavailable, or where there is an ongoing relationship or other explanation for a broad power of attorney being given at the time of retention."

    The court concluded:  "Because [Defendant] failed to meet its burden to prove that [Lawyer] had a clear and unequivocal grant of authority from [Plaintiffs] to file a proposal for settlement, we are required to reverse.  See, e.g., Sharick v. Se. Univ. of the Health Scis., Inc., 891 So.2d 562, 565 (Fla. 3d DCA 2004) (reversing where the trial court 'did not resolve the [dispositive] authorization dispute . . . and . . . the record demonstrates no clear and unequivocal grant of authority to the attorney').  Ponce v. U-Haul of Florida, 979 So.2d 380 (Fla. 4th DCA 2008) (on rehearing).

Lawyer is unsuccessful in attempt to set aside client's settlement and continue suit in client's name to pursue lawyer's fee award  [Added 3/26/08]

    Lawyer represented Client in a civil rights case against Sheriff's Office.  Lawyer and Client had a contingent fee contract.  Client "discharged [Lawyer] as her counsel in a civil rights action when she chose to settle and release all of her claims against [Sheriff's Office], using another attorney, in a worker’s compensation case."  Lawyer then filed a motion to set aside the settlement and allow him to continue the civil rights action in Client's name "in order to protect his fee claims against [Sheriff's Office] under section 760.11, Florida Statutes."

    The trial court found that none of the attorneys involved in the case had attempted to defraud Lawyer of his fee.  Rather, the court indicated that any problem was caused by Client.  Accordingly, the court denied Lawyer's motions and granted the motion to dismiss filed by Sheriff's Office.  Lawyer appealed.

    The Fourth DCA affirmed.  The appellate court noted that Lawyer relied "solely on Mabry v. Knabb, 10 So.2d 330, 337 (Fla. 1942), for the following proposition:  '[W]here the client makes a fraudulent or collusive settlement intended to deprive the attorney of his compensation or cost fees, the attorney will be permitted to proceed with the suit in the client’s name for the purpose of protecting his interests.'"  The court found Mabry distinguishable.  In Mabry there had been a collusive settlement designed to deprive the lawyer of his fee; the trial court found that did not occur in the instant case.

    The court concluded:  "Despite the foregoing, [Lawyer] is not without remedy, as the discharged attorney may still recover a reasonable fee from the client for the work performed by way of quantum meruit.  See Rosenberg v. Levin, 409 So. 2d 1016 (Fla. 1982)."  Manzini & Associates, P.A. v. Broward Sheriff's Office, 976 So.2d 688 (Fla. 4th DCA 2008).

Judgment awarding fees to lawyer is reversed on ground that there was no evidence lawyer had actual or apparent authority to represent purported corporate client.  [Added 12/9/07]  --   Florida State Oriental Medical Ass'n, Inc. v. Slepin, 971 So.2d 141 (Fla. 1st DCA 2007).

Capital Collateral Regional Counsel not authorized to represent convicted death penalty defendants in collateral attacks on prior convictions used as aggravators in their convictions, per Florida Supreme Court.  [Added 11/27/07]  --  State v. Kilgore, 976 So.2d 1066 (Fla. 2007).

Lawyer appointed as "special counsel" to present mitigation evidence in capital case does not have attorney-client relationship with defendant.  [Added 10/10/07]  --  Grim v. State, 971So.2d 85 (Fla. 2007).

Citing Rule of Professional Conduct 4-1.14, Fourth DCA affirms trial court's refusal to appoint attorney ad litem for allegedly incompetent father who was represented by counsel in dependency case.  [Added 6/25/07]  --  S.K. v. Dept. of Children and Families, 959 So.2d 1209 (Fla. 4th DCA 2007).

Workers' compensation claimant considered "represented by counsel" at time claimant executed release even though counsel did not know about or advise claimant regarding release.  [Added 11/29/06]  --  Brewer v. Laborfinders of Tampa, 944 So.2d 1102 (Fla. 1st DCA 2006).

Corporation's lawyer represents entity under Rule 4-1.13, and under some circumstances may have duty to inquire further below following directives of corporate agent.  [Added 10/23/06]  --  Palafrugell Holdings, Inc. v. Cassel, 940 So.2d 492 (Fla. 3d DCA 2006).

Public Defender has no authority to represent criminal defendant in non-capital collateral postconviction proceeding, unless appointed.  [Added 9/8/06]  --  Mann v. State, 937 So.2d 722 (Fla. 3d DCA 2006).

Florida Bar Ethics Committee adopts opinion approving electronic storage of lawyers' files.  [Added 6/26/06]  --  Florida Ethics Opinion 06-1.

Settlement not enforced where record shows lawyer did not have "clear and unequivocal" authority from client.  [Added 4/14/06]  --  Fivecoat v. Publix Super Markets, Inc., 928 So.2d 402 (Fla. 1st DCA 2006).

Law firm's alleged ethical violation did not support claim for tortious interference with another lawyer's attorney-client relationship.  [Added 4/11/06]  --  Loreen I. Kreizinger, P.A. v. Sheldon J. Schlesinger, P.A., 925 So.2d 431 (Fla. 4th DCA 2006).

Fraud or similar "bad" acts by defendant needed in order for lawyer to maintain action for tortious interference with attorney-client relationship.  [Added 2/3/2006]  --  Ferris v. South Florida Stadium Corp., 926 So.2d 399 (Fla. 3d DCA 2006).

Without "clear and unequivocal grant of authority" settlement agreement entered by lawyer for client is unenforceable.  [Added 11/14/04]  --  Sharick v. Southeastern University of the Health Sciences, Inc., 891 So.2d 562 (Fla. 3d DCA 2004).

Tortious interference claim lies where complaint alleged fraud or collusion to deprive law firm of fee, but law firm cannot forbid client to settle without firm's approval.  [Added 10/29/04]  --  Ellis Rubin, P.A. v. Alarcon, 892 So.2d 501 (Fla. 3d DCA 2004).

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