Proposed 2016 Formal Ethics Opinion 1: Contesting Opposing Counsel’s Fee Request to Industrial Commission

Photo Courtesy of the North Carolina State Bar

View the Proposed Ethics Opinion in Full Here

A proposed ethics opinion entitled “Contesting Opposing Counsel’s Fee Request to Industrial Commission” was proposed on January 21, 2016.  The proposed opinion considers whether a defense lawyer for an employer and a workers’ compensation insurance carrier can contest the fee request of plaintiffs counsel with a meritorious basis and standing.

The inquiry that led to the proposed opinion stated that the lawyer sought a twenty-five percent contingency fee from a compensation for retroactive attendant care.  The plaintiff, and the plaintiff’s spouse signed contracts consenting to the fee requested by the lawyer.  When the lawyer submitted a request for approval of the fee to the North Carolina Industrial Commission, the defense lawyer and workers’ compensation carrier opposed the request.  The payment would either go in full to the plaintiff’s spouse, or seventy-five percent (75%) to the spouse and twenty-five percent (25%) to the lawyer.

… [T]he question posed is whether or not the lawyer for the employer and workers’ compensation carrier can oppose the Lawyer’s fee request in an Industrial Commission Proceeding.

Ultimately, the question posed is whether or not the lawyer for the employer and workers’ compensation carrier can oppose the Lawyer’s fee request in an Industrial Commission Proceeding.  The short answer is “yes.”

The proposed opinion states that the defense lawyer for the employer and the employer’s workers’ compensation insurance carrier are not prohibited by the Rules of Professional Conduct from contesting the fee request of the plaintiff’s counsel so long as there is a meritorious basis for the opposition and the defendants have standing to do so.  The opinion states that there is still a question of whether the defendants have standing to challenge the request, but that it is a legal question outside the scope of the Ethics Committee.

The opinion addresses Rule 1.5(a), stating that an attorney shall not make an agreement to collect a clearly excessive or illegal fee.  It also cites to Rule 3.1 prohibiting a lawyer from controverting an issue in a proceeding unless there is a basis in law and fact for doing so, as well as Rule 4.4(a) prohibiting a lawyer for using means that have no substantial purpose other than to delay or burden a third person to represent a client.  The opinion states that if the defense attorney reasonably believes the Lawyer is requesting a clearly excessive or illegal fee under Rule 1.5(a), it would not be a violation of the Rules of Professional Conduct to raise his concerns with either the State Bar or the appropriate tribunal.