Bar Opposes Amendement 3 November 1, 2004 Senior Editor Regular News Bar opposes Amendment 3 Helps fund effort to defeat the measure Gary Blankenship Senior Editor The Florida Bar has gone on record as opposing a proposed constitutional amendment on the November 2 ballot that would limit contingency fees in medical malpractice cases and possibly other tort matters. The board also approved donating $100,000 to the campaign to defeat the amendment and learned that another $100,000 will be given from the Florida Lawyers Association for the Maintenance of Excellence.The issue also provoked an extensive debate at the board’s October 15 meeting on whether the Bar should become involved in the profusion of constitutional amendments recently placed on the statewide ballot by initiative petitions which many see as inappropriate for the state’s governing charter.In the end, the board decided to limit its action to the contingency fee amendment because of the nearness of the election, but many members said they want to explore the amendment process matter further.The proposed amendment — backed by the Florida Medical Association — would limit contingency fees to 30 percent of the first $250,000 awarded in a malpractice case and to 10 percent above that amount. Some opponents of the measure claim it may affect other tort actions as well, in that “medical liability claim” has not been clearly defined in the law.Bar President Kelly Overstreet Johnson said part of the reason for the last-minute action on the proposal, known as Amendment 3, was that she thought the issue did not fall within the relatively narrow areas where the Bar can lobby. But she said after she was asked to have the Bar consider it, she got a legal opinion that the Bar could act on it and she referred the matter to the Legislation Committee.Legislation Committee Chair Sharon Langer said both Bar Legislative Counsel Steve Metz and Bar General Counsel Paul Hill advised the committee that the Bar could act on the amendment. Tallahassee attorney Barry Richard, who also advises the Bar on legal matters, similarly agreed.The committee then voted to recommend to the board that the Bar oppose the amendment because it restricts access to the courts and limits a client’s rights to enter into contracts.Board member Hal Melville said the amendment strikes at basic legal rights. “I think access to the courts is one of the most fundamental concepts in our legal system,” he said. “Amendment 3 would destroy that for virtually every malpractice action.”The board unanimously passed the two-part motion necessary to adopt the position, first finding it within the purview of the Bar and then approving opposition to the amendment.The proposal by the Budget Committee to contribute $100,000 from the Bar’s operating reserve fund did not go so smoothly, with several members questioning whether that amount given so late in the campaign would have any effect.Budget Chair Jerald Beer said the money would go to buy more advertising time for ads already prepared. Bar President-elect Alan Bookman also announced during the discussion that a $100,000 donation will be made from FLAME, a private nonprofit corporation not affiliated with the Bar, but supported by voluntary donations from Florida lawyers.Board member Robert Rush said that was too much, especially because in recent years the Bar has cut funding for the Dignity in Law public relations campaign aimed at improving the public perception of the legal profession.“That’s $200,000 on this one issue,” he said, adding he also questioned the impact of the proposed amendment. “I could write a contract to get around this amendment every single time. If we’ve got this much money for this, why don’t we increase our public relations campaign?”President Johnson, though, said she found lawyers around the state are anxious for the Bar to act. “We don’t have the time, ability, or money to do anything on our own,” she said. “I have gotten a lot of calls and letters from our membership wanting us to get involved and put our money where our mouth is. I have talked with folks [involved in the amendment campaign] and this money is needed and it will make a difference.”The board voted 18-10 to approve the contribution.The discussion on what, if anything, the Bar should do about the proliferation of questionable constitutional amendments was more wide-ranging. Board member Grier Wells made a motion to add to the Bar’s reasons for opposing Amendment 3 that it would be an unnecessary addition to the constitution. Chris Lombardo added the entire amendment process needs to be studied, noting in 2002 Floridians approved an amendment covering treatment of pregnant pigs. Interest groups, Lombardo said, are learning that instead of going to the legislature they can fund an initiative petition drive and bypass legislative checks and balances on a variety of issues that don’t belong in the constitution.“That’s scary and we are the laughing stock of the country, with the possible exception of California, for our amendment process,” Lombardo said. “What we need to do as The Florida Bar is tell the legislature it’s time to have a constitutional convention. . . with the focus on the amendment process. Anyone with enough money can get an amendment on the ballot.”Other board members agreed with Lombardo, but said the Bar couldn’t raise an appropriateness issue on Amendment 3 without also raising it on other constitutional amendments on the ballot. Those include a proposal to increase the minimum wage in Florida and two amendments proposed by the Academy of Florida Trial Lawyers, one of which removes the license of any doctor found to have committed three instances of malpractice; the other makes public adverse incident reports about doctors and health care facilities.Board member Greg Parker suggested the Bar could put out a statement advising voters to carefully review the amendments and their appropriateness without taking a position.But others said it was too complex an issue to be addressed just before an election.Board member Mike Glazer said Wells’ motion could put President Johnson in the awkward position of trying to explain why the Bar had found Amendment 3 inappropriate for the constitution, but hadn’t taken a position on the academy’s proposals.Added President-elect Bookman, “I’m wholeheartedly in support of the concept [proposed by Lombardo] but now is not the time to do it.”Board member Ervin Gonzalez said the board should be very careful about any action that would affect initiative amendments.“We should not as a Bar take a position on putting anything on the ballot when it’s legal,” he said. “The reason we’re taking a position on behalf of The Florida Bar on Amendment 3 is it hurts access to the courts, it hurts health care, it hurts victims of malpractice.“It is dangerous for us to take a position as a Bar that the process we have for the electorate to change the constitution is wrong,” Gonzalez said.The board rejected Wells’ motion by an 8-23 vote, and President Johnson said she would like the Legislation Committee to further study the amendment process.