Hello everyone and welcome to this Ethics Alert which will discuss the recent opinion of the Supreme Court of Florida which disbarred 3 Florida lawyers for misconduct in settling multiple PIP and bad faith claims. The opinion is The Florida Bar v. Charles Jay Kane, The Florida Bar v. Harley Nathan Kane, The Florida Bar v. Darin James Lentner, No. SC13-388 (October 6, 2016) and the opinion is here: http://www.floridasupremecourt.org/decisions/2016/sc13-388.pdf.
The lengthy opinion outlines and discusses the complicated underlying facts, including the involvement of the lawyers in settling the PIP claims and failing to inform and misleading both the clients and the lawyers who were handling separate bad faith claims against Progressive Insurance. Although this is a fairly lengthy Ethics Alert, the relatively short format of my Ethics Alerts do not permit a full discussion of the case, and readers are urged to read the case for more information and clarification.
According to the opinion, the lawyers took on the representation of 441 PIP claims on behalf of various medical providers. Two other lawyers were retained to file bad faith claims. The claims were filed in a matter called the “Goldcoast” litigation, in which only 37 of the PIP clients were involved. Each of the PIP law firms (Kane & Kane, Watson & Lentner, and Marks & Fleischer) and each of the bad faith attorneys executed a contract agreeing to jointly represent all thirty-seven plaintiffs.
During the bad faith litigation, the bad faith lawyers were able to compel disclosure of documents which strengthened the bad faith claims. At mediation on the bad faith claims, Progressive offered only $3.5 million, which offer was rejected.
The disclosure of the documents apparently caused Progressive to consider settlement. Progressive’s counsel later initiated settlement negotiations with the PIP lawyers only and the bad faith lawyers were not part of those negotiations. Progressive offered an aggregate amount of $14.5 million, to settle all of the claims, including both the PIP and bad faith claims, and attorney fees. On May 16, 2004, all six of the PIP lawyers (including the disbarred lawyers) met with lawyers from Progressive to put the agreement in writing. The bad faith lawyers were not told of Progressive’s offers, and they were not asked to attend the meeting.
“As a result of the meeting, the PIP lawyers signed a ‘Memorandum of Understanding’ (MOU) settling all cases and claims, subject to client agreement. Pursuant to the MOU, the clients were required to release all claims against Progressive, including both PIP claims and bad faith claims. The MOU did not specify how the settlement funds would be allocated and it was left to the PIP lawyers to divide the funds between the claims and the costs and fees.”
“The only requirement to trigger the $14.5 million payment was a certain number of signed client releases: 100 percent of the named Goldcoast case plaintiffs and 80 percent of the remaining PIP clients of all three PIP firms. Also as a part of the MOU, the PIP lawyers agreed to defend, indemnify, and hold the Progressive entities harmless from any claims of their clients. Several days later, the PIP lawyers, including the disbarred lawyers, met with one of the bad faith lawyers, Larry Stewart, and offered him $300,000 to compensate all three bad faith attorneys for their work on the bad faith case. The PIP lawyers did not disclose the terms of the settlement with Progressive, stating only that the cases and claims had been settled.”
According to the opinion, “the bad faith attorneys then wrote a letter to each of the named plaintiffs in the Goldcoast case, explaining their efforts to compel production of Progressive’s internal documents and the April 2004 mediation. The letter asserted that as a result of the PIP lawyers’ secret settlement with Progressive, the clients’ bad faith claims may have been ‘compromised or even sacrificed.’”
“The bad faith attorneys sent a copy of their letter to each of the PIP law firms and asked the PIP lawyers to forward the letter to their clients who were not named in the Goldcoast case; however, the lawyers did not forward the letter as requested. Instead, Respondent Charles Kane drafted a letter, titled ‘Notice of Disagreement Between Counsel’ (disagreement letter), for the PIP law firms to send to clients who were named as plaintiffs in the Goldcoast case. The letter contained misleading statements regarding the bad faith attorneys and their efforts to pursue the bad faith claims on behalf of the clients.”
An Amended Memorandum of Understanding (AMOU) was later drafted and, after the law firm contacted the clients and obtained the releases, the settlement funds were paid by Progressive. Kane & Kane received $5.25 million. The firm paid $672,742 to its PIP clients, $433,202 in costs, and took $4,144,055 in attorney fees. Watson & Lentner received $3,075,000, and the firm paid $361,470 to its PIP clients, $190,736 in costs, and took $2,522,792 in attorney fees. Once the firms received the settlement money, the bad faith attorneys were discharged, and a notice of voluntary dismissal with prejudice was filed, ending the Goldcoast case.
The bad faith lawyers then sued the PIP lawyers and, in April 2008, Judge David F. Crow entered a final judgment in favor of the bad faith attorneys on their quantum meruit and/or unjust enrichment claims. The final judgment included extensive findings as to the PIP lawyers’ actions, noting that the matter “could be a case study for a course on professional conduct involving multi-party joint representation agreements and the ethical pitfalls surrounding such agreements.”
The Supreme Court opinion upheld the finding of guilt and rule violations made by the referee and disbarred all three lawyers. “We agree with the referee that the PIP lawyers’ most egregious violation occurred when they abandoned their clients’ bad faith claims in favor of a greater fee for themselves.” The opinion states that the “considerable violation of (the lawyers’) ethical responsibilities to their clients and the legal system, entirely for their own financial interests and at the expense of their clients, warrants disbarment.
Bottom line: The 3 lawyers were disbarred for the misconduct which is briefly described above and is further detailed in the opinion.
The opinion also addressed a very important practice point for lawyers who handle PIP claims on behalf of medical providers since it upheld the referee’s findings that all three lawyers failed to provide their clients with closing statements in the PIP cases in violation of Florida Bar Rule 4-1.5(f). “Although there was testimony presented to the referee that a closing statement is not typically provided in a PIP case because the attorney fee is not taken as a portion of the client’s overall recovery, the referee found, and we agree, that there is no specific exception in the Bar Rules authorizing this practice.” The Court found that lawyers must provide closing statements to clients in PIP first party claims, even though the fees and costs are typically paid by the insurance company and not taken out of the client’s settlement funds.
Be careful out there.
Disclaimer: this Ethics Alert is not an advertisement, does not contain any legal advice, and does not create an attorney/client relationship and the comments herein should not be relied upon by anyone who reads it.
Joseph A. Corsmeier, Esquire
Law Office of Joseph A. Corsmeier, P.A.
29605 U.S. Highway 19 N. Suite 150
Clearwater, Florida 33761
Office (727) 799-1688
Fax (727) 799-1670