Sunday, June 5, 2016

Some Interesting Questions on Miles

On June 1, 2016 the Florida First District Court of Appeal issued its Mandate in Miles v. City of Edgewater. Some really interesting questions were recently raised regarding Miles, in which The First District Court of Appeal announced some arguably broad holdings regarding Fla. Stat. 440.105. One quote worthy of further consideration is "consequently, we hold that no attorney accepting fees in this situation may be prosecuted under section 440.105(3)(c), Florida Statutes." This is being touted as essentially the end of the requirement of judicial approval of claimant's attorney fees in Florida workers' compensation.


Miles is a case regarding whether an injured worker, or some "benefactor," may pay attorneys fees for representation in Florida workers' compensation cases. The Court's conclusion is that the statutory prohibition on such fees is unconstitutional. The recent interesting questions about Miles came in two parts. First is that the law throughout Florida, and second does that mean that Fla. Stat. 440.105(3)(c) is now meaningless?

In Florida, the appellate jurisdiction of the state is divided hierarchically. There is a Supreme Court, with jurisdiction throughout the state. Decisions of this Court are thought by some to be binding, "controlling," authority in all state courts in Florida. There is also a system of intermediate appellate courts, whose jurisdiction is generally divided geographically, with some subject-matter distinctions as well. The intermediate appellate courts are divided into five District Courts of Appeal, Each with its own jurisdictional geographic territory. Despite the geographic distribution, all workers' compensation appeals are within the jurisdiction of the First District Court in Tallahassee.

The geographically largest of the five intermediate courts is the First District Court of Appeal, encompassing 32 counties from Alabama to Jacksonville, and south to Gainesville. It is an extremely large geographic area. The smallest geographic District Court of Appeal is the Third, which encompasses only Miami-Dade and Monroe Counties. Population is a critical element in the distinctions in geographic size.

Workers' compensation cases are tried before judges in the Office of Judges of Compensation Claims, and all appeals regarding those decisions are considered by the First District. As practitioners will remember, criminal cases are prosecuted in the circuit and county courts throughout the state, and FlaStat. 440.105(3)(c) is a criminal statute. Appellate review of those various courts' decisions occurs in the particular geographic District Court of Appeal. This was illustrated last year in the appeals of Francisco Brock and Jordan Hector. These two were convicted of misrepresentation in south Florida, under FlaStat. 440.105(4)(b)9. The State of Florida appealed the dismissal of charges, and the Fourth District Court of Appeal concluded that misrepresentation is actionable under the Florida workers' compensation law even when no workers' compensation benefits are sought or paid. 

There was consternation regarding the decision among some attorneys. A fair amount of that was based upon the perceptions of an earlier interpretation of another portion of this statute section by the Florida First District Court of Appeal in Matrix Employee Leasing v. Hernandez, discussed here. But the Fourth District in Hector and Brock did not follow the reasoning of Hernandez, which interpreted FlaStat. 440.105(4)(a). The Fourth District distinguished the facts before it from the facts in Hernandez and reached a different interpretation of FlaStat. 440.105(4)(b)9.

What Hector and Brock illustrated aptly was that appellate decisions are grouped into two kinds of "authority." Within the geographical jurisdictional of a court, that court's decisions are mandatory or "controlling" authority. Courts within the geographic authority of a particular District Court of Appeal must follow the decisions of that District Court of Appeal. Thus, in the 32 counties within the jurisdiction of the First District Court of Appeal, the decision in Hernandez is "controlling" authority. 

However, outside of those 32 counties, the Hernandez decision is referred to as "persuasive" authority. It may influence courts outside that 32 counties, but those courts are not bound to accept or follow that decision. The decision in Hernandez is not controlling in the geographic jurisdiction of the Fourth District Court. 

So, likewise, the Miles decision is no more controlling authority in the Second, Third, Fourth, and Fifth District Court geographic areas than the Hernandez decision was controlling over the prosecutions of Hector or Brock. It is even possible that one of those courts might reach a different conclusion than Miles without explanation; the decision might be simply mentioned as the First District mentioned Samaha v. State in a footnote. 

This is intriguing and interesting, because the provisions of Fla. Stat. 440.105(3)(c) create criminal liability for attorneys who accept fees that are not approved by the judge of compensation claims. Perhaps the most well-known example of such a liability was published in Samaha v. State, 389 So.2d 639 (1980), a case that arose in Hillsborough County. There, an attorney collected a fee and was charged criminally for doing so. The Supreme Court of Florida affirmed the conviction, concluding that the constraint on fees not approved by a judge was not unconstitutional.

To some, it remains unclear how Miles and Samaha, a Supreme Court conclusion of constitutionality, should be harmonized. Some suggest that a District Court of Appeal opinion that finds a statute unconstitutional might facilitate better public understanding in the marketplace with a clear explanation of why the prior Supreme Court decision does not control the outcome of the presented legal question. Certainly, some feel that the brief mention of Samaha, in footnote 1 of Miles, provides insufficient explanation of how and why the First District Court has reached a different conclusion from that of the Supreme Court, interpreting similar criminal prohibition on unapproved fees. The Supreme Court has not been asked to review Miles. Therefore, any explanation of the relationship between these two decisions will await some future interpretation in yet another case and controversy. 

Mr. Samaha accepted a fee for representation of an injured worker, which was not approved by the judge of compensation claims. The state attorney in Hillsborough County Circuit prosecuted him under statutory language similar to Fla. Stat. 440.105(3)(c). Thus, today there is Supreme Court authority that seems to suggest that criminal sanction for taking of unapproved attorneys' fees is criminal, and there is First District Court of Appeal authority that suggests that "no attorney" may "be prosecuted under section 440.105(3)(c), Florida Statutes." And from reading Miles broadly, there are some who believe that Miles nullifies Fla. Stat. 440.105(3)(c) completely. It is fair to say that there seems to be a significant amount of conversation, and perhaps disagreement in the marketplace, about the effect of Miles

Interestingly, some of those who have mentioned the Miles holding to me have not recounted the full quote in the first paragraph above (see below with emphasis added). Instead, they quote "no attorney may be prosecuted under section 440.105(3)(c), Florida Statutes." But what the Court said in Miles is "no attorney accepting fees in this situation may be prosecuted under section 440.105(3)(c), Florida Statutes." (Emphasis added). 

Could a state attorney in Tampa (2nd DCA), Miami (3rd DCA), Fort Lauderdale (4th DCA), or Daytona Beach (5th DCA) file criminal charges against a claimant's attorney who accepted a fee in a Worker's Compensation case without judicial approval, pursuant to Fla. Stat. 440.105(3)(c)? The answer to this seems to be yes, because of the geographic jurisdiction distinctions discussed above. Some attorneys have argued to me that Samaha supports such prosecution. They argue that the First District has not explained why Samaha is not controlling and that a more thorough analysis of Samaha might yield a different result. 

In instructing hundreds of college students over the decades, it has never ceased to amaze me how many ask the question "can I be sued for ________?" This is a flawed question, and the answer to this is always simple, yes. In fact, one can be sued for anything. That does not mean that the lawsuit would be successful. That does not mean that there would be liability. That does not mean that one would pay damages. The simple fact, however, is that generally speaking anyone can be sued for anything. The question, I was asked by those many college students, failed to specify "can you be successfully sued?" And that may be another question completely. 

If an injured worker, or employer, contacted a state attorney and sought to have charges filed against an attorney regarding Fla. Stat. 440.105(3)(c), the state attorney could almost certainly file such charges in any Circuit that is not within the 32 county geographic jurisdiction of the First District Court of Appeal (that is in approximately 4/5 of the Florida courts). The accused attorney's first reaction, would undoubtedly be "that statute is unconstitutional, and I cannot be therefore prosecuted," as the court said in Miles


It would then be up to another court to decide whether that broad policy statement by the first District Court of Appeal was persuasive to it. It is possible that some Circuit court and some other District Court could disagree with Miles. And thus the "persuasive" versus "controlling" authority issue is one of which counsel may wish to be aware.


Another aspect of the law, which is well-known to attorneys, is that the facts of the case may be more compelling than the statement or interpretation of the law. For example, the context in Miles regards the payment of an attorney's fee by an injured worker and or someone on the injured workers behalf (union), a "benefactor." 

Thus, even within the geographical territory of The First District Court of Appeal, a court might distinguish Miles on its facts. For this reason, it may be important to remember the Miles holding in its entirety, "no attorney accepting fees in this situation may be prosecuted under section 440.105(3)(c), Florida Statutes." (Emphasis added). The provisions of Fla. Stat. 440.105(3), and criminal liability may therefore yet apply to the payment of fees by someone other than the injured worker or her/his benefactor. So, while some have prognosticated that judicial approval is not required under Miles for fees paid by employer/carriers, that interpretation may not ultimately be accepted.

Still others have vociferously argued to me that the Miles court discussion of "reasonable" fees is critical. They argue that the "circumstances" there include the Court's admonition "subject to a JCC's finding that the fee is reasonable." In other words, they argue that the effect of Miles still requires judicial approval of all fees, but under an, as yet, undefined or unrefined standard of reasonableness. They argue that "in these circumstances" means only that it is unconstitutional to preclude payment of fees by injured workers and benefactors, and that the judicial approval requirement remains for all fees in Florida workers' compensation. 

To some, the Miles opinion is anything but clear. There will be ample debate and discussion of both its impact, and the breadth of its application. Whether prosecution for taking unapproved fees is currently probable or not, the fact remains that it is at least potentially possible under different facts (E/C paid fees), and in the geographic areas of 4 of the 5 District Courts. As a result of those potentialities, careful lawyers will be striving to understand the breadth and scope of their responsibility, and potential liability, under the First District's decision in Miles. Some lawyers may be keeping in mind the Supreme Court's decision in Samaha.

There are those who crave predictability and clarity. A fair few of them have asked me what is acceptable and what is not; what is appropriate, acceptable, and legal? My answer is consistent, "I do not know." Last Friday I was asked if there would be a meeting of the JCCs to discuss it, to "decide how to proceed." That, of course, is a simpler question and the answer is as simple: "no."

What the law provides, and what Miles says or means, will be up to the arguments made by various lawyers, in various cases, decided by various judges. Some decisions will be revered, and others vilified or ridiculed. Some will be accepted and some will be appealed. Those that are appealed may bring explanation and further interpretation from the First District Court, whose opinions are as binding throughout the Florida workers' compensation litigation process as the Florida Supreme Court's are binding thoughout all Florida state courts.

By its very nature, the litigation process, appellate review, and the law can be evolutionary and frankly slow. So the answers are not here today. The decisions of courts can be illuminating and sometimes confounding. But the process will bring answers in time. We are most fortunate that a great many brilliant minds labor in the Florida workers' compensation system. Through their efforts, interpretations, thoughts and arguments it is likely the future will bring interpretations, answers, and greater clarity.

I recently had one such mind apologize to me that she/he disagreed with me. Please do not ever apologize to me for disagreeing, for being zealous, for being passionate. I value nothing in this world more highly than an honest critic. I need each of you and your brilliance. I would suggest that perhaps all government does. You who are willing to ask "why" and assert your thoughts, ask your questions, propose your solutions; you are the future. Please do not ever apologize to me for your enthusiasm and brilliance. As long as we always treat each other respectfully and professionally, there is tremendous value in our discussion, debate and disagreement. Keep those cards and letters coming!

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