1.5(f)(1), (2)), to hold the oral contingency fee agreement at issue unconscionable and void, and therefore not able to support a contingency risk multiplier. The rule requires contingency fee agreements to be reduced to a writing signed by the client and a lawyer for the law firm representing the client. For the following reasons we disagree with the trial court’s analysis and reverse the order with directions, on remand, to at least consider the risk multiplier.
Our determination is squarely based upon the preamble to chapter 4 of the Rules Regulating the Florida Bar entitled “Rules of Professional Conduct,” which provides in pertinent part:
Violation of a rule should not give rise to a cause of action nor should it create any presumption that a legal duty has been breached. The rules are designed to provide guidance to lawyers and to provide a structure for regulating conduct through disciplinary agencies. They are not designed to be a basis for civil liability. Furthermore, the purpose of the rules can be subverted when they are invoked by opposing parties as procedural weapons. The fact that a rule is a just basis for a lawyer’s self-assessment, or for sanctioning a lawyer under the administration of a disciplinary authority, does not imply that an antagonist in a collateral proceeding or transaction has standing to seek enforcement of the rule. Accordingly, nothing in the rules should be deemed to augment any substantive legal duty of lawyers or the extra-disciplinary consequences of violating such duty.
Robert A. Shupack, P.A. v. Marcus, 606 So.2d 466 (Fla. 3d DCA1992) (on motion for rehearing denied en banc) (Schwartz, C.J. dissenting) (quoting Mark Jay Kaufman, P.A. v. Davis & Meadows, P.A., 600 So.2d 1208, 1211 (Fla. 1st DCA1992)).1
Standard Guaranty Insurance Co. v. Quanstrom, 555 So.2d 828 (Fla.1990) holds that once a trial court arrives at the lodestar figure in setting a reasonable attorney’s fee, the court “ ‘must consider whether or not to apply’ the contingency fee multiplier.” Id. at 831. Thus, a contingency fee multiplier, although not mandatory, must at least be considered by trial judges in contingency fee cases.
We acknowledge that the
Quanstrom decision is unclear as to whether the holding applies to oral contingency fee agreements. However, any doubt was removed by the supreme court’s decision in
Department of Administration v. Ganson, 566 So.2d 791 (Fla.1990) (Ganson II). Ganson II reversed a first district decision which clearly dealt with an oral contingency agreement similar to the one in the present case.
Ganson v. Department of Admin., 554 So.2d 522 (Fla. 1st DCA1989)
(Ganson I). In
Ganson II the supreme court, without disallowing the oral contingency fee agreement in that ease, relied on
Quan-strom to quash the opinion in
Ganson I, which approved a report and recommendation by a hearing officer that a contingency risk multiplier is mandatory when a contingency fee agreement exists between attorney and client.
1
We note that the Shupack opinion concerned a fee sharing agreement, unlike the instant oral contingency fee agreement. Moreover, at the time the parties entered into the fee sharing agreement in Shupack, the Florida Bar Code of Professional Responsibility was in effect. This court invalidated the agreement in that case because it failed to meet the requirements of Disciplinary Rule 2-107, Florida Bar Code of Professional Responsibility. The preliminary statement to the Code states in relevant part: This is unlike the preamble to the Rules Regulating the Florida Bar which is controlling in the instant case, and which specifically states that a "[vjiolation of a rule should not give rise to a cause of action nor should it create a presumption that a legal duty has been breached.” Thus, our decision here is distinguishable from our previous ruling in Shupack.