Contingency Fee Clients Must Sign on the Dotted Line

July 9, 2018

At some point in life, every person surely has received the age-old advice to read a contract before signing it. However, what if you are awoken from a comatose state only to realize that a contingency fee contract with a law firm was executed on your behalf?

On April 4th, 2018, the Fourth District Court of Appeal decided the case of William O’Malley v. The Freeman Law Firm, which serves as a cautionary tale to lawyers who work on contingency fee agreements. In this case, the appellant, William O’Malley, was involved in a horrendous car wreck that left him in a coma for months. During this period, his mother sought representation on his behalf and signed a personal injury contingency fee contract as the personal representative of the Estate of William O’ Malley. Problem: the mother was never actually appointed as personal representative! Moreover, Mr. O’Malley had not executed a power of attorney in favor of his mother, nor had he been declared legally incompetent by a court, which could have led to an appointment of a legal guardian.

Once the appellant awoke from the coma, he discussed his case numerous times with the appellee, Attorney Brian Freeman. The attorney had advised Mr. O’Malley that he filed a lawsuit on his behalf and was proceeding with litigation. Without explanation, Mr. O’Malley subsequently ended the representation, which prompted the attorney to sue for the enforcement of the contingency fee agreement. The trial court found that upon awaking from his coma, O’Malley had ratified the agreement his mother had made by acknowledging Freeman’s representation and discussing the case with him. The trial court awarded the attorney the sum he sought, which was based upon the contractual contingency fee rate, minus any work completed after his discharge. O’Malley appealed the trial court’s ruling and the Fourth District Court of Appeals subsequently heard the case.

On appeal, the Fourth District reversed the trial court’s award of contingency rate attorneys’ fees to Freeman based upon a strict interpretation of the Rules Regulating the Florida Bar. The Rule cited by the appellate court, to wit, 4-1.5(f)(2), mandates that any lawyer who is engaged via a contingency fee contract must have the consent of the client in writing. In the instant case, The Freeman Law Firm never obtained the signature of Mr. O’Malley on a Contract for Legal Representation, either before or after he was in the coma. As such, the appellate court found the contract to be void against public policy. Moreover, the appellate court found that the appellant had not ratified his mother’s contract when he awoke from the coma. The court considered numerous factors, such as the fact that the appellant never had a chance to review the actual contract, nor had he explicitly promised to honor it. Mere acknowledgement of the contract was not enough for enforcement.

There is, however, a silver lining for the appellee attorney in this case. He can still recover for the work he performed on the basis of “quantum meruit”’ which translates from the Latin as “what one has earned.” The factors to be considered are the amount of work by Freeman before being discharged and the actual benefit of the services to the client. The Fourth DCA left this amount to be determined by the sound discretion of the trial court.

At The Grife Law Firm, we are proud to be of service to those seriously injured due to car accidents, truck crashes, medical malpractice, nursing home neglect and slip and fall accidents. Of course, all of our clients must sign our contingency fee contract! Call our Boca Raton office at 561-998-0770 for a free consultation.