A recent decision suspended a lawyer over litigation costs. The decision is interesting in that regard alone. Nonetheless, the citation therein to a "felony suspension" might raise awareness a bit more.
There has long been a habit of submitting costs for approval by the Judge of Compensation Claims. It is an intriguing history. There are instances in which lawyers adamantly insist the judge should approve their costs and others in which they insist the judge lacks jurisdiction.
Anytime there is a discussion of costs, there is some tendency to refer to Eshlibi v. Consol. Box Mfg., 962 So.2d 377 (Fla. 1st DCA 2007) and even Demedrano v. Lab. Finders of Treasure Coast, 8 So. 3d 498, 499 (Fla. 1st DCA 2009). Eshlibi is perhaps the clearest expression regarding costs and settlements:
"A JCC lacks statutory authority to deny the attorney's fees based upon costs charged to the claimant."
Admittedly, this is not the most expository opinion of the court—64 words total—but it is reasonably clear. Note that it is specific "charged to the claimant," seemingly distinguishing this from instances in which the employer or carrier might be paying a claimant's costs or the claimant might be paying the employer or carrier's.
Despite Eshlibi, dozens of Motions for Approval each week include information about costs, and various orders are entered that mention those costs. Some go so far as to "approve" those costs charged to an injured worker.
Horace Middlemier* recently called me about the Florida Supreme Court's decision in The Florida Bar v. Butler, SC2021-0738, in which a lawyer was "suspended from the practice of law for thirty days, nunc pro tunc to June 18, 2021, the effective date of her felony suspension."
Nunc Pro Tunc is Latin for "now for then," and essentially means something is retroactive. Many of my friends in the non-legal world ask me why courts, lawyers, and doctors love Latin. I suppose I shall never know.
I cannot shake Winnie the Pooh and the Blustery Day (Disney, 1968). From a narrator's perspective, we gain from that story a great quote, apropos of nothing:
And thus, here we are regarding lawyer discipline, seemingly: "deja vu all over again." Remember the criticality of duration. Suspensions from the practice vary in duration, and the number of days matters. See Increased Discipline (May 2025).
The May 2025 decision is related to a Conditional Guilty Plea for Consent Judgement dated about a year before. That document memorializes that the lawyer entered a contract with a client for a "flat fee" and also "requested a cost retainer" that the client paid in advance. After the representation, the lawyer sent an invoice "requesting reimbursement from the client in the amount of $8,797.00 for costs and expenses," seemingly above the amount paid initially (retainer).
That invoice, listing "costs ..., attributed higher costs to third-party entities than the charges that were listed on the invoices that the client also received directly from those same entities." The vendor charged "x," the client knew that, but the lawyer charged more than "x," labelled a "cost." The lawyer explained these were "accounting error(s)" and "administrative oversight." The total difference was allegedly just over seven thousand dollars.
The lawyer "entered a plea of no contest to one count of Grand Theft in the Third Degree," but later successfully requested that the court vacate that plea. They then "entered a plea of no contest to obstructing justice, adjudication was withheld, and they were sentenced to 12 months of administrative probation, which was then reduced to 6 months." Lawyers who commit crimes are likely to draw the attention of The Florida Bar.
The Supreme Court Conditional Guilty Plea lists various "mitigating" circumstances: "personal problems ..., full and free disclosure to the bar ..., interim rehabilitation ..., imposition of other penalties ..., (and) remorse." Mitigation is an issue addressed in virtually every lawyer disciplinary proceeding.
Despite those mitigations, the lawyer was suspended from the practice of law for 30 days as a result of the dispute regarding costs, the differences demonstrated, and representations.
Thus, we return, as we sometimes do, to the question of Judges approving costs. In the instance of a settlement, the District Court has been clear in Eshlibi regarding jurisdiction. The judge lacks jurisdiction. The Judge is presented with a document prepared by a lawyer, without receipts or other documentation, and is asked to "approve" those costs.
The potential exists in each instance for the implication of "accounting error" or "administrative oversight" in perhaps any cost entry. If the Judge "approves" costs despite lacking jurisdiction (authority), and those costs are not correct or complete, is the injured worker served? Is there some reason for the parties to seek approval in the first instance?
Nonetheless, there is the habit of seeking approval for costs. A judge explained to me years ago that approving them made sense because "the parties like that." This was a short conversation, and we agreed to disagree about how what the parties like or don't like conveys jurisdiction. The recent decision is instructive for us all. Mistakes happen, with judicial approval or not.
