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Respondents. Attorney for National Employment Lawyers Association, Florida

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Respondents. Attorney for National Employment Lawyers Association, Florida Filing # 17020198 Electronically Filed 08/12/2014 05:15:30 PM RECEIVED, 8/12/2014 17:18:55, John A. Tomasino, Clerk, Supreme Court IN THE SUPREME COURT FOR THE STATE OF FLORIDA MARVIN CASTELLANOS, Petitioner, CASE NO.: SC13-2082 Lower Tribunal: 1D12-3639 vs. OJCC No. 09-027890GCC NEXT DOOR COMPANY/ AMERISURE INSURANCE CO., Respondents. BRIEF OF NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, FLORIDA CHAPTER, AMICUS CURIAE, IN SUPPORT OF PETITIONER LOUIS P. PFEFFER, ESQ. 250 South Central Blvd. Suite 205 Jupiter, FL 33458 561) 745 - 8011 [email protected] Attorney for National Employment Lawyers Association, Florida Chapter, as Amicus Curiae TABLE OF CONTENTS Page TABLE OF CITATIONS ........................ ............ii,iii,iv TABLE OF AUTHORITIES. .......... .... ........ .......... .......iv,v PRELIMINARY STATEMENT.. ............. ... ......... ... .............1 STATEMENT OF INTEREST............ .... ....................... ...1 SUMMARY OF ARGUMENT....................................... .. .2 INTRODUCTION........ ..................................... y.....3 ARGUMENT.................................... .........,........7 I. FLORIDA STATUTE 5440.34 (1) VIOLATES THE SEPARATION OF POWERS DOCTRINE AND THIS COURTS .INHERENT POWER TO ASSURE .A FAIR AND FUNCTIONING JUSTICE SYSTEM AND TO REGULATE ATTORNEYS AS OFFICERS OF THE COURT. .. ... .. ... .. .. .. .. .... ..7 A. STANDARD OF REVIEW ,., .... ... ., . ... .. .7 B. THE: SEPARATION OF POWERS PRECLUDES THE LEGISLATURE FROM ENCROACHING ON THE JUDICIAL BRANCH' S POWER TO ADMINISTER JUSTICE AND REGULATE ATTORNEYS. 8 C. FLORIDA STATUTE 5440.34(1)UNDERMINES THE PIVOTAL ROLE PLAYED BY ATTORNEYS REPRESENTING INJURED WORKERS IN THE WORKERS COMPENSATION SYSTEM... 9 D. FLORIDA STATUTE $440.34 (1)VIOLATES THE SEPARATION OF POWERS BY SUBVERTING THE JUSTICE SYSTEM FOR INDIVIDUALS AND THE. PUBLIC AT LARGE 4 . , . .12 E. FLORIDA STATUTE 5440 34 (1) ENCROACHES ON THIS COURT' S EXCLUSIVE POWER TO REGULATE ATTORNEYS . *15 F. FLORIDA STATUTE S440.34 (1) INHERENTLY PLACES A CLAIMANT! S ATTORNEY IN A PROHIBITED CONFLICT OF INTEREST.,......... .. .........,. ........ .....19 1. CONCLUSION . ............ ...... ..... ... ...... .. .. ....... .....20 CERTIFICATE OF SERVICE . .21 CERTIFICATE OF TYPEFACE COMPLIANCE. ... .. .24 TABLE OF CITATIONS CASES .Page Abdool v. Bondi, SC13-1123r June 12, 2014................. ...218 Advisory Opinion Concerning Applicability of Chapter, 74-177, 316 So. 2d 45 (Fla. 1975)........... .............10 Advisory Opinion Concerning the Applicability of Chapter 119, Florida Statutesf398 So.2d 446,448 (Fla. 1981).. ..............16 Advisory Opinion to Governor, 213 So.2d 716, (Fla. 1968) .. ... .......... .. ........ .. ... .. ...........9 Amendments to Rules Regulating the Florida Bar 1-3.1(a) and Rules of Judicial Administration, 573 So. 2d 800, 804 (Fla. 1990) .......................................................11 Baruch v. Giblin, 164 So. 831 (Fla.1935.......................12 Bush v. Holmes r 919 So2d 392 (Fla. 2006) ... ..... ... ...... .6 Bush v. Schiavo, 885 So.2d 321(Fla. 2004)..................... .8 Canal Authority v. Ocala Manufacturing Ice and Packing Company, 253 So. 2d 495) (Fla. 1st DCA 1971)...... ...14 Chlles v. Children A, B, C, D, E, & F, 589 So.2d 260(Fla. 1991)........................... .......... .8,9,10 Dade County v. Collte Rock CompanV, 311 So. 26 699, (3rd DCA 1975)......... .......................... .........13 Davis v. Keeto, 463 So. 2nd 368(Flag 1st DCA 1985). ...........12 Fl&qala Corporation, v. H.E. Hamm, 302 So, 2d 195, (Fla. 1st DCA 1974) ...... .... ....... ... ..... ... .. ...... .14 Florida Patient's Compensation Fund v. Rowe, .472 So. 2d 114 (Fla.1985) ... ......... ..... ... ...... ...,..... ....13 Hazel H. Russell, 236 So. 2d 767 (Fla. 1970).a... .....ye......11 Tn re Amendments to Rules Regulatínq the Florida Bar" 1-3(a)and Rules of Judicial Administration, 573 So. 26.800 (Fla. 1990)..... ........e...... ........ .....3,..e......11 In re The Florida Barr 316 So.2d 45(Fla.1975).........10,15,16f18 Kent v. United State8r 383 U;S. 541 (1966).. ..... .... ... ...11 Lee Engineerinq & Construction Company v. Fellows 209 So2d 454(Fla 1968)..................................... ...15 MarchionDCA Terrazzo1979)....4...v. Altman,..... ........-...........372 So. 2d 512 (Fla. 3rd.....a..... ..14 Matter of John E. McCarey, 105 So( 2d 813 (Fla.lst DCA 1958).. ....v.................. .ay........ ....10 McCulloch v. Maryland, 17 U.S.316 (1819).. ....................17 Moaklev v. Smallwood, 826 So. 2d 221(Flaa 2002).3... .. ....10 Murrav v. Mariner Health, 994 So2d 1051(Fla.2008)....,....... .4 Nevlon v. Ford Motor Company, 99 A.2d 665 (N..J. 1953)..........12 Office of State Attorney v. Parrotino, 628 So. 2d 1097, 1099(Fla. 1993)e... .. ... ... ............5..+............9 Ohio Casualty v. Parrish, 350 So.2d 466(Fla. 1977)... .... .....E Petit on of Florida State Bar Association, 40 So. 2d 902, 907,908 (Fla. 1949)3... .....a...... .. ...... ... ..10 11 Petition for Advisory Opinion Concerning Applicability of Chapter 74 177, 316 So 2d 45, 48 (Fla 197.5)... ..... ........10 Ponder v. Graham, 4 Fla 23, 42-43 (1851) .......... ............8 State ex rel. Arnold v. Revelsr 109 So.2d 1 (Fla21959) ...... .18 111 The Florida Bar v. Massfeller,170 So.2d 834(Fla.1964)..... ....18 The Florida Bar v. Richardson, 574 So. 2d 60 (F1a 1990) . .13 Times Publishing Company vè Williams, 222 So 2d 470, (Fla. 2nd DCA 1969)................................ ......16 Travieso v. Travieso 474 Soe 2d. 1184 (Fla. 1985) ..... ..,..13 Uhnlein v. Department of Revenue, 662 So. 2d 309 (Fla. 1995) .................................................13 Urbieta v. Urbieta , 446 So. 2d 230 (Fla.3rd. DCA.19.84). ...J14 STATUTES Page Fla. Stat S440.34... ..............................6,7,20 Fla. Stat S440.34(1). ........ .. ...e.2 4,7 9f12 15,19,20 Other Authorities Page Florida Bar Ethics Opinion 98-2 (June 18, 1998).... ......17 Ohio Ethics Opinion 97-7..... ....... .. .....................18 Rules of Professional Conduct Rule 4-1.1 ...... .....e........... ..... ...........19 Rule 4-1.5....... ......... ... ........... ...... .16,17,19 Rule 4-1.5(b).v..... .........e...... ..,..... ...17 Rule 4-1.5(a) (1)and(b)...............................16 Rule 4-1.7............ ... ..s... .. .... ... ...2,19,20 Rule 4-1.7 (a) (2)................... .... ...........19 Florida Constitution . Article. II, Section 3........ ...... ... .............8 Article V, Section 1. .... .. ... ........ 9 Article V,. Section 15.......................... .... .15 Standards of Conduch for Lawyers: An 800 year evolution 57, SMU L. Rev 1385 (2004) . .16 y PRELIMINARY STATEMENT This brief is accompanied. by an appendix containing portions of the ,record before the First District Court of .Appeal in Pfeffer v Labor Ready Southeast Inc et al, No. 1D13-4779 currently pending in this Court No SC14 738, pursuant to a cerbified question from the First Districh This Court, by order dated 7/28/14 permitted Pfeffer to file a motion for leave to file an amicus curiae brief in support of hhe Petitioner in Castellanos, together with an appendix with relevant documents from Pfeffer'A trial proceedings and the appellate proceedings in the First District Court of Appeal The motion, for leave was granted by order dated 8/7/14. Marvin castellanos, Petitioner will be. ,referred. to in this brief by his surname, Louis Pfeffet,. .one of the Petibioners in. Pfeffer, will be referred to by his áurnamen and Cynthia Richardson, the Petitioner in Richardson. v; Aramark, currently pending in this Courte. No.SC14-738 will. be ;referred to by her° surname. The Respondents in Castellanos añd Pfeffer will be referred to as the "employer/carrier," or "E/Cf', References to the appendix will be designated by the letter pp," followed by the exhibit and applicable page ;number in parentheses STATEMENT OF INTEREST, The National Em];iloyment Lawyers Association (NELA) g is an organizahion of approxímately 3 000 attorneys around the nation who represent employees in civil rights and .employment-related litigation. The Florida Chapter was founded in 1993 and has approximately 200 participating attorneys around.the state- Florida NELA seeks to address the issue in this case because Florida Statute, §440.34(1)inherently and impermissibly places attorneys representing injured workers in a conflict of interest prohibited by Florida Bar Rule DR 4-1.7 and threatens the ability of NELA lawyers to bring claims on behalf of injured workers who have been denied benefits. As Florida Statube, §440.3ï(1) chills the pursuit of meritorious claims and departs radically from settled law its proper resolution. is a matter .of substantial concern to NELA, its members and their clients. SUMMARY OF ARGUMENT The Legislature has unconstitutionally encroached on the Judicial Branch' s power to administer Justice and to regulate attorneys who are officers of the court, The operation of Florida Statute, Section 440j34(1) in eliminating reasonable" athorney fees and mandating that fees be arbitrarily awarded solely on a statutory schedule, inherently and impermissibly places attorneys representing injured workers in a conflict of interest prohibited by Florida Bar Rule DR 4-1.7, and ignores this Court's past pronouncements on the pivotal role that attorneys, as officers of the court, play in ensuring the administration of justice in 2 Florida courts, as well as the critical importance that; reasonable" attorneys fees play in assuring a fair and functioning ustice sýstem.
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