A motorist who was rendered a quadriplegic in an automobile accident initially retained the Gerber Law Group consistent with the Fee Schedule regulating members of the Florida Bar.  The plaintiff and his wife also entered into a second retainer agreement with Gerber and Swope Rodante, with a contingency fee of 40% on any gross recovery exceeding $100,000, and dividing the fees between Gerber’s (62.5%) and Swope (37.5%).  Because the potential total amount of fees exceeded those authorized by the Fee Schedule, the agreement required court approval. The Plaintiffs, Gerber and Swope filed a Verified Petition for Approval of Attorneys’ Fee Contract and Authorization of Division of Attorneys’ Fees, which the Circuit Court approved.

Two years into the case, Gerber had done little, and Swope was not interested in assuming more responsibility.  Gerber reached out to a third lawyer, named Harmon.  The plaintiffs terminated their agreement with Swope and entered into a new agreement with Gerber and Harmon.  This new retainer agreement provided for a contingency fee of 40% of any gross recovery greater than $100,000.  It further provided that the fees earned on any recovery up to $1 million would be split 75% Gerber, 25% Harmon, with fees earned on any amount over $1 million split equally. The new agreement, (unlike the previous retainer and fee-sharing agreement between Gerber and Swope), did not detail the services each firm would provide as justification for the division of fees; nor did the agreement expressly acknowledge and agree that Gerber and Harmon would each assume joint legal responsibility to the client, as required by Florida Rule 4-1.5(f)(2) and 4-1.5(g).  Over two months after entering into the agreement, Harmon, on behalf of the Plaintiffs, filed an unsworn Petition for Approval of Fee Contract and Authorization of Division of Attorneys’ Fees, stating that the Bryans had discharged Swope and hired Harmon as “co-counsel” with Gerber. It alleged that the law firms “would accept substantially equal active participation” in providing legal services, but did not disclose the specific services to be performed by each counsel. Gerber did not sign the petition, and no Gerber attorney attended the hearing on the petition. Although the Florida Rule required the petition to be filed within ten days of execution, sworn and signed by all counsel, and disclose in detail those services to be performed by each counsel, the Circuit Court granted the petition.

Thereafter, Harmon performed substantially all of the work, and settled the case for $8 million.  $8 million.  He prepared a Closing Statement reflecting total attorneys’ fees of $3,160,000, which allocated only $1,280,000 to Gerber, as opposed to the $1,670,000 that was called for by the agreement. Although Gerber initially consented to the modified fee allocation and signed the Closing Statement, Gerber later withdrew his consent. Harmon paid the $1,280,000 to Gerber, who sued Harmon for the additional $390,000, and assigned its rights to additional proceeds to Santek.

The jury found that Harmon breached the fee-sharing agreement with Gerber, but awarded no damages. On post-trial motions, the trial court entered judgment in favor of Santek for $390,000, plus prejudgment interest.  But the Florida Court of Appeals reversed:

“In the instant case, Gerber and Harmon failed to comply with the applicable Florida Bar rules regulating contingency fee contracts. The noncompliance by both Gerber and Harmon was substantial and significant. Given the Florida Supreme Court’s binding holdings in Chandris, we conclude that the fee-splitting agreement between Gerber and Harmon was void as against public policy and, thus, unenforceable. Chandris and Katz recognized that where an attorney is unable to enforce a contingency fee contract because of noncompliance with the Rules Regulating the Florida Bar recovery may be sought under a quantum meruit theory. However, to recover under a quantum meruit theory, a quantum meruit claim must be pled or tried by consent. Because a quantum meruit claim was neither pled nor tried by consent below, we direct the trial court, on remand, to enter judgment in favor of Harmon.”

 

Harmon Parker v. Santek Management, 311 So.3d 213 (Fla. App. 2^nd Dist. 2020).