Third District Court of Appeal
State of Florida
Opinion filed October 20, 2021.
Not final until disposition of timely filed motion for rehearing.
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No. 3D21-1143
Lower Tribunal No. 20-21384
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Winston Ramkelawan, et al.,
Appellants,
vs.
Morgan & Morgan, P.A.,
Appellee.
An Appeal from non-final orders from the Circuit Court for Miami-Dade
County, Jose M. Rodriguez, Judge.
Goldberg & Rosen, P.A., and Judd G. Rosen and Mustafa H.
Dandashly; Beckham & Beckham, P.A., and Pamela Beckham and Robert
J. Beckham, Jr., for appellants.
Klein Park & Lowe, P.L., and Robert M. Klein, Alex Diaz, and Andrew
M. Feldman, for appellee.
Before EMAS, LINDSEY and GORDO, JJ.
EMAS, J.
Winston and Vindra Ramkelawan, the plaintiffs below, appeal the trial
court’s order compelling arbitration of the legal malpractice claim they filed
against their former counsel, Morgan & Morgan, P.A. Appellants raise
challenges to the retainer agreement as a whole, and a specific challenge to
the arbitration provision contained therein. We find no merit in the arguments
raised and affirm the trial court’s order compelling arbitration.
The arbitration provisions within the retainer agreement provide:
By executing this fee agreement I agree that, with one exception,
any and all disputes between me and The Firm arising out of this
agreement, The Firm’s relationship with me or The Firm’s
performance of any past, current or future legal services, whether
those services are subject of this particular agreement or
otherwise, will be resolved through a binding arbitration
proceeding to be conducted under the auspices of the
Commercial Arbitration Rules of the American Arbitration
Association in Orlando, Orange County, Florida. The disputes
subject to binding arbitration will include without limitation,
disputes regarding attorney’s fees or costs, and those alleging
negligence, malpractice, breach of fiduciary duty, fraud or any
claim based upon a statute. Both the agreement of the parties to
arbitrate all disputes and the results and awards rendered
through the arbitration will be final and binding on me and The
Firm and may be specifically enforced by legal proceedings.
Arbitration will be the sole means of resolving such disputes, and
both parties waive their rights to resolve disputes by court
proceedings or any other means. The parties have agreed that
judgment may be entered on the award of any court of competent
jurisdiction in the state of Florida and, therefore, any award
rendered shall be binding. The arbitrator may not consolidate
more than one person’s claims, and may not otherwise preside
over any form of a representative or class proceeding. The one
exception to my agreement to arbitrate concerns ethical
grievances which I may have. Nothing in this agreement limits,
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in any way, my right to pursue any ethical grievance against The
Firm as permitted by applicable law.
I understand that by agreeing to arbitration as a mechanism to
resolve all potential controversies, disputes or claims between
us, I am waiving certain rights, including the right to bring an
action in court, the right to a jury trial, the right to broad discovery,
and the right to an appeal. I understand that in the context of
arbitration, a case is decided by an arbitrator (one or more), not
by a judge or jury. I agree that, in the event of such controversy,
dispute, or claim between us, the prevailing party will be entitled
to recover from the losing party all costs and expenses he, she,
or it incurs in bringing and prosecuting, or defending, the
arbitration, including reasonable attorney’s fees and costs.
I have been advised to review this contract carefully to be certain
that it accurately sets forth our agreement. In the event that I do
not understand anything in this agreement, I will let The Firm
know so further written explanation can be provided.
NOTICE: I am aware this agreement contains provisions
requiring arbitration of fee disputes. I am aware I should
consult with another lawyer about the advisability of making
an agreement with mandatory arbitration requirements.
Arbitration proceedings are ways to resolve disputes
without use of the court system. By entering into
agreements that require arbitration, I give up (waive) my
right to go to court to resolve those disputes by a judge or
jury. These are important rights that should not be given up
without careful consideration.
(Emphasis in original.)
Appellants contend the language used in the instant arbitration
provision violates Rule 4-1.5(i), Rules Regulating the Florida Bar,1 and fails
1 See Chandris, S.A. v. Yanakakis, 668 So. 2d 180, 185-86 (Fla. 1995)
(holding “a contingent fee contract entered into by a member of The
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to give “the required written notice that [the client] should consider obtaining
independent legal advice as to the advisability of entering into an agreement
containing such mandatory arbitration provisions.” Feldman v. Davis, 53 So.
3d 1132, 1137 (Fla. 4th DCA 2011). Rule 4-1.5(i) provides:
(i) Arbitration Clauses. A lawyer must not make an agreement
with a potential client prospectively providing for mandatory
arbitration of fee disputes without first advising that person in
writing that the potential client should consider obtaining
independent legal advice as to the advisability of entering into an
agreement containing such mandatory arbitration provisions. A
lawyer shall not make an agreement containing such mandatory
arbitration provisions unless the agreement contains the
following language in bold print:
NOTICE: This agreement contains provisions requiring
arbitration of fee disputes. Before you sign this agreement
you should consider consulting with another lawyer about
the advisability of making an agreement with mandatory
arbitration requirements. Arbitration proceedings are ways
to resolve disputes without use of the court system. By
entering into agreements that require arbitration as the way
to resolve fee disputes, you give up (waive) your right to go
to court to resolve those disputes by a judge or jury. These
are important rights that should not be given up without
careful consideration.
Florida Bar must comply with the rule governing contingent fees in order to
be enforceable”); Feldman v. Davis, 53 So. 3d 1132,1136 (Fla. 4th DCA
2011) (“A provision in a contingency fee agreement that does not conform to
the Rules Regulating The Florida Bar is not enforceable by the member of
The Florida Bar that violated the rule”).
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Comparing the language of the Florida Bar rule with the language in the
instant agreement reveals minor differences that do not invalidate the
arbitration provision. The relevant paragraph in the parties’ retainer
agreement states:
NOTICE: I am aware this agreement contains provisions
requiring arbitration of fee disputes. I am aware I should
consult with another lawyer about the advisability of making
an agreement with mandatory arbitration requirements.
Arbitration proceedings are ways to resolve disputes
without use of the court system. By entering into
agreements that require arbitration, I give up (waive) my
right to go to court to resolve those disputes by a judge or
jury. These are important rights that should not be given up
without careful consideration.
The language in the agreement is virtually identical to that required by
rule 4-1.5(i), save for a grammatical change from the third-person voice
(“you”) to the first-person voice (“I”), and a slight difference between the
second sentence of each provision. The Florida Bar rule provides: “Before
you sign this agreement you should consider consulting with another lawyer
about the advisability of making an agreement with mandatory arbitration
requirements.” The agreement provides: “I am aware I should consult with
another lawyer about the advisability of making an agreement with
mandatory arbitration requirements.”
We conclude that the language used in the arbitration provision of the
retainer agreement is in compliance with the requirements of Florida Bar rule
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4-1.5(i): it provides the requisite notice and satisfies that rule’s express
requirement that a retainer agreement mandating arbitration of fee disputes
must “advis[e] . . . the potential client [that he or she] should consider
obtaining independent legal advice as to the advisability of entering into an
agreement containing such mandatory arbitration provisions.” R. Regulating
Fla. Bar 4-1.5(i). The language utilized conforms in all material respects,
and we reject appellants’ contention that these variances invalidate or render
unenforceable the arbitration provision contained in the parties’ contingent
fee agreement. See, e.g., Guy Bennett Rubin, P.A. v. Guettler, 73 So. 3d
809, 813 (Fla. 4th DCA 2011) (finding contingent fee agreement enforceable
despite technical or immaterial violation of Florida Bar rule 4-1.5(d));
Freedman v. Fraser Eng'g & Testing, Inc., 927 So. 2d 949, 954 (Fla. 4th DCA
2006) (finding a flawed contingency fee agreement can be enforceable and
attorney's failure to send client proper closing statement did not preclude
enforcement of charging lien); Wright v. Ford Motor Co., 982 F. Supp. 2d
1292 (M.D. Fla. 2013) (concluding attorneys from two different law firms who
represented clients in successful wrongful death action were permitted to
share contingent fees between them in 60-40% division, rather than 75-25%
division presumed reasonable, even though petition did not strictly comply
with applicable rule for permitting increased division of fees); State
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Contracting & Eng'g Corp. v. Condotte Am., Inc., 368 F. Supp. 2d 1296 (S.D.
Fla. 2005) (finding contingent fee agreement was enforceable despite
technical or immaterial violations of Florida Bar).
The two cases appellants rely upon for their argument—Owens v.
Corrigan, 252 So. 3d 747 (Fla. 4th DCA 2018) and Feldman v. Davis, 53 So.
3d at 1132—are inapposite. In both cases, the arbitration provision was held
unenforceable because it did not contain any portion of the bold print notice
required by rule 4-1.5(i). In Owens, for example, our sister court concluded:
Here, the retainer agreement violated Florida Bar Rule 4-1.5(i)
because the agreement prospectively provided for mandatory
arbitration of fee disputes without giving the plaintiff the required
written notice that she "should consider obtaining independent
legal advice as to the advisability of entering into an agreement
containing such mandatory arbitration provisions." Thus,
because the arbitration clause does not comply with Florida Bar
Rule 4-1.5(i), we hold that it is unenforceable on its face.
Owens, 252 So. 3d at 750. See also Feldman, 53 So. 3d at 1137.
Having determined that the arbitration provision is valid and
enforceable, the remaining analysis is straightforward.2 Given the plain and
unambiguous language of the instant arbitration provision,3 the parties
2 The remaining issues raised by appellants do not merit additional
discussion.
3 The arbitration agreement provides in relevant part that, apart from ethical
grievances,
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manifestly agreed to arbitrate appellants’ malpractice claim against their
former counsel. See Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla.
1999) (holding: “Under both federal statutory provisions and Florida's
arbitration code, there are three elements for courts to consider in ruling on
a motion to compel arbitration of a given dispute: (1) whether a valid written
agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3)
whether the right to arbitration was waived”); 4927 Voorhees Rd., LLC v.
Mallard, 163 So. 3d 632, 635 (Fla. 2d DCA 2015) (“Where a motion to compel
arbitration has been filed and the arbitration agreement is valid on its face, it
any and all disputes between me and The Firm arising out
of this agreement, The Firm’s relationship with me or The
Firm’s performance of any past, current or future legal
services, whether those services are subject of this particular
agreement or otherwise, will be resolved through a binding
arbitration proceeding to be conducted under the auspices of
the Commercial Arbitration Rules of the American Arbitration
Association in Orlando, Orange County, Florida. The disputes
subject to binding arbitration will include without limitation,
disputes regarding attorney’s fees or costs, and those alleging
negligence, malpractice, breach of fiduciary duty, fraud or any
claim based upon a statute. Both the agreement of the parties to
arbitrate all disputes and the results and awards rendered
through the arbitration will be final and binding on me and The
Firm and may be specifically enforced by legal proceedings.
Arbitration will be the sole means of resolving such
disputes, and both parties waive their rights to resolve disputes
by court proceedings or any other means.
(Emphasis added.)
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is the burden of the party seeking to avoid arbitration to demonstrate that the
agreement is invalid”) (quoting Spring Lake NC, LLC v. Figueroa, 104 So. 3d
1211, 1214 (Fla. 1st DCA 2012)).
Affirmed.
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