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Fourth DCA questions but upholds requirement of independent expert witness testimony in charging lien case. [Added 7/21/10] Law Firm represented Client in a dissolution of marriage case. The retainer agreement required the client to notify Law Firm in writing within 30 days if Client objected to fees charged. Law Firm was owed unpaid fees. Law Firm moved to withdraw and filed a Notice of Charging Lien. The trial court granted the motion to withdraw and held a hearing on the Firm's motion to enforce its charging lien. The lawyer in the Firm who was responsible for the case "testified to the firm’s engagement and the client’s failure to object to the bills in writing as provided for in the retainer agreement. In addition, the court received into evidence the retainer agreement, the complete billing history, and the Notice of Charging Lien. The court denied the firm’s motion based upon its failure to call an independent expert witness to testify concerning the reasonableness of the fees." Law Firm appealed, arguing that the trial court erred in requiring independent expert witness testimony regarding the fees. Reluctantly, the Fourth DCA affirmed. Although the appellate court "previously questioned the judicially-created requirement of independent expert witness testimony establishing the reasonableness of attorney's fees" (citations omitted), the court conceded that this requirement "remains etched in our case law. This is because attorneys have an ethical duty, pursuant to the Florida Rules Regulating the Florida Bar, to charge fair and reasonable fees, regardless of the terms of the fee agreement." Because the court questioned the viability of the independent expert witness requirement, especially in a case involving a dispute between a law firm and its client. The court affirmed but certified the following question to the Florida Supreme Court: "Is expert witness testimony necessary to establish attorney’s fees due under a charging lien against a client, who has entered into a retainer agreement that requires all fee disputes to be made in writing within thirty days of the bill’s receipt and has failed to object?" Robin Roshkind, P.A. v. Machiela, __ So.3d ___ (Fla. 4th DCA, No. 4D10-203, 7/14/2010). |
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