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Absurd $1.53 Hourly Billing Rate Is Too Low for Florida

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By Casey C. Sullivan, Esq. on April 29, 2016 11:59 AM

Marvin Castellanos' attorney spent more than 100 hours toiling on Castellanos' workers' comp claim. And after defeating numerous defenses from Castellanos' employer and its insurer, the attorney was victorious.

But when it came time to collect attorney's fees, his reward was only $164, or $1.53 an hour. That's because Florida law sets a mandatory fee schedule based on the amount won -- without allowing consideration of whether those awards are reasonable. And that rate is so "absurdly low" that it's unconstitutional, the Florida Supreme Court ruled yesterday.

The Right to Reasonable Attorney's Fees

Attorney's fees are a central part of the worker's compensation system, allowing injured employees to bring claims without paying anything up front, since their attorney will be paid out of their benefits or settlement. As the Florida Supreme Court noted, "the right of a claimant to obtain a reasonable attorney's fee when successful in securing benefits has been considered a critical feature of the workers' compensation law since 1941."

But those contingency agreements are highly regulated by the states. In California, for example, worker's comp judges may authorize a 10, 12, or 15 percent contingency rate, depending on the complexity of the case. In New York, judges determine the fee amount based on what is reasonable for the circumstances.

And Then There's Florida

Under Florida's compensation schedule, established in 2003 by then-Governor Jeb Bush, attorney's fees are conditioned on the amount won: 20 percent of the first $5,000; 15 percent of the next $5,000; and 10 to five percent of the remaining benefits.

Under that system, a complex, but low-reward case can lead to absurdly low attorney's fees, as it did here. And since the law creates an irrebuttable presumption that those fees are reasonable, there is no recourse for a lawyer like Castellanos' whose left with just a pittance -- that is, no recourse but to not accept low-reward cases, undermining one of the goals of the workers' compensation system.

That is, until yesterday. Having concluded that the Florida system violated workers' due process rights, the Florida Supreme Court revived its immediate predecessor, which requires a reasonable award of attorney's fees.

So, congrats, Florida lawyers. Next time you get paid for securing benefits, you could actually make a reasonable wage!

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