Case

Zebersky on Holland & Knight conflicts and petition to amend Florida’s Rules of Professional Conduct

In 1 on February 3, 2009 at 6:54 pm

IN THE SUPREME COURT OF FLORIDA
CASE NUMBER SCO5-1150
IN RE: PETITION TO AMEND
RULE 4-1.5(0(4)(B) OF THE
RULES OF PROFESSIONAL CONDUCT
/
RESPONSE TO PETITION BY EDWARD H. ZEBERSKY, ESQ.
This is a Response to the Petition filed by former Justice Grimes
seeking to amend the Florida Rules of Professional Conduct Rule
1.15(f)(4)(B). It is with great concern, as will be further discussed, that I
write this Response.
I have had an opportunity to review the petition along with the names
of all the lawyers that have signed the document. What strikes me right off is
that the petition is being filed by a paid lawyer (Former Justice Grimes) and
law firm (Holland & Knight) for the Florida Medical Association (FMA) as
well as other counsel that are directly employed by the FMA. What is even
more troubling is that a majority of the signatures on the Petition are from
either other members of the Holland & Knight firm or from paid lobbyists,
lawyers and consultants for the FMA or their allies. In short, after scratching
the surface of this Petition, it is clear that the document is
nothing more than an attempt by the FMA, through their paid lawyers and
allies, to eliminate any real responsibility for acts of medical malpractice. I
submit that this attempt creates a conflict of interest.
HISTORY BEHIND AMENDMENT 3
To more fully illustrate this point a brief history behind Amendment 3
is necessary. In, 2003, the FMA and its main insurance carrier FPIC launched
an all out assault in the Florida Legislature to effectuate caps on noneconomic
damages in medical malpractice cases. Some of the lawyers listed
on the Petition were either paid lobbyists or volunteers for the position taken
by the FMA during the 2003 sessions.
After the regular session and several special sessions, a cap on noneconomic
damages was eventually passed and signed into law by Governor
Bush. The cap was larger than what was advocated by the FMA and there was
a huge grumbling amongst the doctors that they should go on the ballot in
2004 to effectuate a hard cap on non-economic damages. The doctors
eventually decided that instead of going forward with a non-economic damage
cap, it would attempt to cap the amount of attorney’s fees that could be paid in
a medical malpractice action.
The reason for this change is simple; in 1986 and 1988 the doctors had
tried a cap on non-economic damages and lost. As such, rather than
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fighting an uphill battle with the public by directly capping damages, they
would go forward with a simple notion to cap attorney’s fees. By capping fees
the hope was that it would become financially infeasible for a qualified
malpractice lawyer to accept a complex malpractice case on a contingency fee
basis.
The slogan for the Amendment 3 Campaign was “enough is enough”
and their campaign was nothing more that an attempt to smear the legal
profession and especially trial lawyers. Clearly this worked as Amendment 3
passed by almost a 2/3 majority. However, the goal of the campaign was not
to put more money in the client’s pocket, but to make it near impossible for a
lawyer to accept a medical malpractice case on a contingency basis. This way
the doctors would achieve their main goal; limit the ability for a person to
seek redress for medical malpractice.
Former Justice Grimes was hired by the FMA as its lawyer throughout
the Amendment 3 process. Indeed, he appeared as counsel of record before
this court with respect to the constitutionality of the amendment language.
Similarly, he was hired as counsel to oppose the constitutionality of two
amendments (Amendments 7 and 8) which effected doctors.
Based on the history of Amendment 3 and the forces behind the
amendment, I submit that this Court should look at the Petition as little more
3
than a thinly veiled attempt to effectuate the purpose behind the FMA’s main
goal; eliminate any meaningful access to courts to redress medical malpractice
injuries.
PUBLIC POLICY CONSIDERATIONS
The Florida Bar has an independence that is not shared by many
professions in the State of Florida. The Bar polices its own for violations and
creates its own rules for professional conduct. There is little
dispute that this
type of governance has worked very well for a very long time. This Petition,
which is being pushed by people that have a conflict of interest based on their
or their firm’s involvement with Amendment 3, strikes at the very heart of the
independence that the Bar has enjoyed over decades. If this petition is
granted, the FMA will have succeeded in influencing Bar governance and will
surely open the floodgate to future attempts by interested lawyers to
undermine the independence of the bar.
Another policy concern is whether this Court wants to restrict a
persons’ ability to waive their constitutional right to contract with
a lawyer of
their choosing. Constitutional rights are waived every day. Miranda warnings
waive certain constitutional rights. The Right to Access to Courts is waived
everyday when arbitration agreements are executed. In fact, outside of life and
death circumstances it is difficult to find a constitutional
4
right that cannot be waived voluntarily. Based on the goals of the FMA, which
is to eliminate medical malpractice lawsuits, it should come as no surprise
that the FMA’s lawyers are asking this court to eliminate a persons’ right, not
only to contract, but to waive their constitutional right.
CONCLUSION
This Petition process is fraught with conflict of interest. Moreover, it is
little more than an attempt by the FMA to interject itself into Bar governance
to effectuate what it could not in the legislature or through the Amendment
process; eliminate medical malpractice lawsuits. This Court should not
entertain this request which will serve to limit and not enhance the rights of
Florida’s citizens and for those reasons and the reasons asserted by numerous
other lawyers the Court should deny the petition.
Respectfully submitted,
EDWARD H. ZEBERSKY, ESQ
Zebersky & Payne, LLP
4000 Hollywood Blvd
Hollywood, FL 33021
Telephone: ~2) 989 .333
Facs’ ile: (9 4 /• 89 781
EDWA H. ZEBERSKY, ESQ.
Florida Ba No. 908370
Bv:
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that a true and correct copy of the foregoing has
been furnished via U.S. regular mail this 23rd day of September, 2005 to: John
Harkness, General Counsel, The Florida Bar, 651 E. Jefferson Street,
Tallahassee, FL 32399-2300 and Stephen H. Grimes, Counsel for Petitioners,
Holland and Knight, LLP, P.O. Box 810, Tallahassee, FL 32302-0810.
EDWARD H. ZEBERSKY, ESQ
Zebersky & Payne, LLP
4000 Hollywood Blvd
Hollywood, FL 33021
Telephone: (95 4) 989-6333
Facsimile: (9 89-771
EDWA ~.b H. Z B ‘ SKY, ESQ Bar
No. ‘ i 8370
By:
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Posted via email from HKLaw Investigation

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