In the world of Florida legal practice, an attorney can become part of a case by filing. The Florida Rules of General Practice and Judicial Administration (Fla.R.Gen.Prac.&Jud.Admin.) provide parameters regarding appearance. Rule 2.505. There are similar provisions in the Chapter 60Q-6 Rules of Procedure for Workers' Compensation Adjudications (Fla.R.Pro.Work.Comp.). There are some distinctions. That is a reminder that Florida Court rules apply in workers' compensation only when specifically incorporated.
We see that incorporation in Rule 60Q6.126, which subjects disqualification of a JCC to Fla. R. Gen. Prac. & Jud. Admin. 2.330. We see that incorporation in Rule 60Q6.114 and its multiple references to "Florida Rules of Civil Procedure." There are instances in which knowledge of those court rules is critical in the workers' compensation practice.
The Fla.R.Pro.Work.Comp. do not incorporate or reference the court rules as regards the appearance of counsel. Rule 60Q6.104 provides that "An attorney who files a petition or claim on behalf of a party has entered an appearance." This is similar to the court rules regarding a "first pleading," see below. However, in workers' compensation, this is only as to "petition or claim." Thus, for the defense in workers' compensation, a notice of appearance is necessary ("all other attorneys"). This distinction is tied to the statutory requirement for the employer/carrier to file a response to the petition, section 440.192(8). Thus, it is perhaps rare that an attorney files the "first pleading" for the employer/carrier.
Rule 60Q6.104 proceeds to delineate the process for content and service of the notice of appearance, as well as the substitution and withdrawal of counsel. The rule is seemingly straightforward and reasonably direct. Unfortunately, a fair number of attorneys each year struggle with the process of ceasing representation. This comes down to, essentially, either stipulating with another attorney (no judicial approval required) or filing a motion.
It is noteworthy that there is no provision in Rule 60Q6.104 for "limited appearance."
Florida practitioners have been watching the amendment process regarding the Civil Procedure Rules. One recently emailed me about a Florida Bar News article "Board Of Governors Moves Rule that Would Allow ‘Limited Appearance Attorneys.’" That has raised some questions. Notably, however, the appearance of counsel is covered by the Fla.R.Pro.Work.Comp., and without any reference to the court rules for which the amendment is being discussed. That means, in effect, this change is not of much concern in Florida workers' compensation.
The appearance of counsel in court cases is in Fla.R.GenPrac.&Jud.Admin. Rule 2.505(e). This equates the filing of any "first pleading" for a party as a notice of appearance, as well as enabling the filing of a document actually titled "notice of appearance." The rule proceeds to deal with the issues of substitution of counsel and more. The current discussion is as regards paragraph (5):
"Notice of Limited Appearance. Filing a notice of limited appearance as permitted by another rule of court."
As the recent Bar News article notes, this is an enabling provision, that the article says was added to the rules after 2016. It is notably dependent upon "another rule of court." When the original Rules of Judicial Administration were promulgated in 1978, the purpose was "consolidation of the rules of judicial administration contained in" various other rules. In re Fla. Rules of Jud. Admin., 360 So. 2d 1076 (Fla. 1978).
The enabling process in paragraph (5) seems to invite diverse potential for "limited appearance." The consistency sought by the Fla. R. Gen. Prac. & Jud. Admin. concept is perhaps subject to frustration as other "rule(s) of court" may now treat such limited appearance differently. That may not be a detriment. Certainly, the workers' compensation rules are different as this practice is different. It should perhaps not be challenging for the lawyer to know which rules to consult and to accept that differences will exist.
Nonetheless, the Florida Bar News article notes that there is a "recent focus on expanding court access," and that the perception is that access is facilitated by "limited appearance attorneys.” Thus, a unanimous Civil Procedure Rules Committee has endorsed adding such a provision in Civil practice. That recommendation was approved by the Florida Bar Board "overwhelmingly." Bar leaders are quoted concluding that "This is something we should be doing to promote access."
The proposal will travel to the Supreme Court for consideration. The new Rule, Civil Procedure Rule 1.041, may soon provide that
“An attorney may file a notice of limited appearance specifically limiting the attorney’s appearance to particular proceedings or specified matters.”
This will purportedly allow the parties in a case to "unbundle" the controversy or dispute, and to hire counsel for some limited portion of that overall dispute. This is not new. Limited notices are discussed in Gustafasson v. Levine, 186 So. 3d 562 (Fla. 4th DCA 2015)(Family law), Lindsey v. Lindsey, 958 So. 2d 1025 (Fla. 5th DCA 2007)(Family law); and McDaniel v. FirstBank Puerto Rico, 96 So. 3d 926, 927 (Fla. 2nd DCA 2012)(Civil).
The concept is likewise not novel in workers' compensation. Some attorneys have filed documents titled "limited notice of appearance" in a variety of workers' compensation actions. They have striven from the outset of representation to limit the duration or scope of involvement. Several have crossed my desk. None have cited any authority that would (1) allow such a limited notice in workers' compensation, or (2) relieve the attorney of the responsibilities that are set forth in Rule 60Q6.104.
There are times that a lawyer appears in an OJCC case with no intention of providing representation before a JCC. They are appellate counsel and are interested primarily in a greater awareness of the trial proceeding, and having access to the various pleadings for the purposes of their representation in the appellate action. This may also be in preparation for an anticipated or at least hoped-for outcome that includes a remand to the JCC for imposition of appellate fees.
One attorney even filed a "limited notice" in a case with which the lawyer had no visible or stated connection. He had no client to represent in that case. He apparently found the case interesting and decided to access the filings in the case. Notably, he might instead have requested the public records. Instead, he chose to file a notice of appearance. But, Rule 60Q6.104 is clear.
(1) Appearance of Counsel. An attorney who files a petition or claim on behalf of a party has entered an appearance and shall be deemed the party's attorney of record. All other attorneys appearing for a party in an existing case shall file promptly with the judge a notice of appearance and serve copies on all other parties or, if represented, the parties' attorneys of record. The notice of appearance shall include the style of the proceeding; the case number; the name of the party on whose behalf the attorney is appearing; and the name, mailing address, e-mail address, telephone number, and Florida Bar number of the attorney. (Emphasis added).
There is no "I find this interesting" grounds stated for a notice of appearance before the OJCC. The notice is only "for" or "on behalf of" some party to that case. The filing of a notice of appearance is constrained by this rule. It is unclear what other authority might support such a limited notice of appearance.
How will the new civil rule impact workers' compensation if it is approved by the Florida Supreme Court? It will not. The easy answer is that the Rules of Civil Procedure apply in workers' compensation only to the extent that the Fla.R.Pro.Work.Comp. incorporate or adopt them. There is no adoption for "notice of appearance," and instead the Fla.R.Pro.Work.Comp. has a specific rule on that topic.
That said, whether a contract of representation might limit the scope of the relationship between a party and counsel remains. The contractual agreement is between those, and such agreements need not be approved by this Office. Section 440.34(1)("The judge of compensation claims is not required to approve any retainer agreement between the claimant and his or her attorney").
Thus, perhaps such an agreement could limit the scope or duration of representation. Perhaps such an agreement could be cited as grounds for a motion to withdraw? That said, the provisions of Rule 60Q6.104 nevertheless apply to counsel in workers' compensation proceedings, and withdrawal will be necessary if representation is to end, whether the cause or reason is known in advance (contract) or arises unexpectedly in the course of the relationship.
It is notable that many attorneys withdraw from cases each year. We see the motions by the hundreds. There are rarely reasons stated, and there is often disappointment, anger, and confusion expressed by the client. Some struggle to accept that there is no legal mandate that makes anyone work for another, or hire another. These are voluntary involvements that result from, persist because of, mutual assent. Lawyer and client must agree to be in a relationship, and either may end a relationship.
That said, perhaps if a lawyer has no intention of proceeding beyond some point, there is merit in specifying that in the contract? Despite there being no such "limited notice" in workers' compensation, would the contract term, as a basis for withdrawal, make the ending of the relationship more predictable, more expected, and better understood? As the Supreme Court takes up this new rule proposal, perhaps it is all food for thought.
