How does a contingency fee work?
A contingency fee means an attorney is paid a percentage of whatever is recovered through settlement or judgment, rather than an hourly rate or a flat fee paid upfront. Personal injury and civil matters are commonly handled this way, including at this firm.
- No upfront cost: nothing is owed to start a case or to have it evaluated.
- Percentage of the recovery: the fee is a set percentage of the settlement or judgment, not an hourly rate.
- No recovery, no fee: if the case does not result in a settlement or judgment, no attorney fee is owed.
- Costs handled separately: case costs, such as filing fees or expert witness fees, are addressed in the written fee agreement and are distinct from the attorney’s fee.
Criminal defense matters work differently, since contingency fees are not permitted in criminal cases under Florida Bar rules, discussed below.
What percentage does Florida law allow?
Florida Bar Rule 4-1.5(f) sets maximum contingency fee percentages for personal injury cases on a sliding scale based on the amount recovered:
- Up to $1 million, settled before defendant files an answer: 33 1/3 percent
- Up to $1 million, settled after an answer is filed or at trial: 40 percent
- $1 million to $2 million: 30 percent of that portion
- Above $2 million: 20 percent of that portion
For example, on a $1.5 million recovery that settles after a lawsuit is filed, the fee would be 40 percent of the first $1 million, plus 30 percent of the remaining $500,000: $400,000 plus $150,000, for a total fee of $550,000.
Does the percentage change once a lawsuit is filed?
Yes. The lower percentage applies to cases resolved before the defendant formally responds to the complaint. Once an answer is filed, or the case proceeds toward litigation or trial, the maximum allowable percentage increases, reflecting the additional work involved in litigating a case rather than resolving it through early settlement negotiations.
What happens if the case is not successful?
No attorney fee is owed. That is the core function of a contingency arrangement: the financial risk of an unsuccessful outcome falls on the attorney, not the client. This is also why not every case is accepted on contingency, since an attorney working this way is investing time and resources with no guarantee of payment.
Why can’t contingency fees be used in criminal cases?
Florida Bar ethics rules do not permit contingency fee arrangements in criminal defense matters. A criminal case ends in outcomes like a conviction, a dismissal, or a specific sentence, and the ethics rules do not allow an attorney to be paid a percentage tied to that kind of result. Criminal defense representation is billed as a flat fee or hourly rate instead.
Is the contingency fee cap different for medical malpractice cases?
Yes, significantly. Florida’s Constitution, under Article I, Section 26, guarantees a medical malpractice claimant no less than 70 percent of the first $250,000 in damages recovered, which caps the standard attorney fee well below the percentages that apply to other personal injury cases. A client can choose to waive this constitutional protection in writing in order to use the standard injury fee schedule instead, but the attorney has an affirmative obligation to explain that choice clearly before the client decides.
Who pays case costs if the case is not won?
This is separate from the attorney’s fee, which is waived entirely if there is no recovery. Responsibility for case costs, such as filing fees and expert witness fees, depends on the specific terms of the written fee agreement. Some agreements have the attorney advance and absorb these costs if the case is unsuccessful, while others require the client to remain responsible for costs regardless of outcome. This distinction should be addressed clearly in the written agreement before signing, not assumed.
Can I switch attorneys during a contingency case?
A client has the right to end representation with any attorney at any time, under Fla. R. Regulating Bar 4-1.16. If an attorney is discharged before the case concludes, Florida law, under Rosenberg v. Levin, 409 So. 2d 1016 (Fla. 1982), generally allows that attorney to seek payment for the reasonable value of work already performed, capped at what they would have received under the original contract. In a contingency case, that claim only becomes payable if the case is eventually resolved successfully by new counsel. Switching attorneys mid-case can therefore result in owing fees connected to both the original and the new attorney from the same recovery.
What is required at the end of a successful case?
Florida requires the attorney to prepare a written closing statement itemizing all costs, expenses, and the fee received once a case concludes with a recovery. Both the attorney and the client sign it, and each keeps a copy. The attorney must retain the closing statement, along with the original fee agreement, for six years, and it must be available for the client to inspect at any reasonable time.
Does a personal injury settlement for a minor need court approval?
Often, yes. The requirement under Fla. Stat. § 744.387 depends on the settlement amount and whether a lawsuit has been filed:
- $15,000 or less, no lawsuit filed: No court approval required
- $15,000 or less, lawsuit already filed: Yes, court approval required
- $15,000 to $50,000: Yes, court approval required
- Over $50,000: Yes, typically with a formal guardianship of the minor’s property
The court’s role is to confirm the settlement, including the attorney’s fee, is in the minor’s best interest.
What has to happen before signing a contingency fee agreement?
The agreement must be in writing and signed by both the client and the attorney, spelling out the fee percentage, how costs are handled, and what happens at each stage of the case. Before signing, the attorney must also provide a document called the Statement of Client’s Rights for Contingency Fees, which explains these protections in plain terms. Clients also have a three-business-day period after signing during which the agreement can be canceled. See our page on what it costs to hire a lawyer in Miami for how this fits into the larger picture of legal fees generally.
If you are considering a personal injury claim
The decision to pursue a personal injury claim does not have to wait on the ability to pay legal fees upfront. See our Personal Injury page for the types of cases handled on this basis, or our complete Contingency Fee Guide for a full breakdown of every stage of a case, from signing through the final closing statement.
The first consultation is free and confidential, with no obligation to retain.