*1
COMMITTEE ON LEGAL ETHICS OF
the WEST VIRGINIA STATE BAR
v.
George R. TRIPLETT.
No. 18396. Appeals Virginia.
West
Oct.
Rehearing Denied Dec.
534 1- practice law in of DR Cynthia M. Santoro fitness to violation
Jack Marden & (6). Gustke, Charleston, 102(A)(4),(5) Virginia for West Bar. State Fahrenz, Charleston, for Frederick D. I
George Triplett. R.
Introduction NEELY, Justice: initiated Black cases are when Department miner a claim with the files brought disciplinary proceeding This is a (DOL). The is then Labor claim reviewed Legal the by the Committee on Ethics of by a “Committee”) at the administrative level claims ex- (the Virginia West State Bar commissioner, the George deputy aminer or against Triplett, a member R. approved or denied after a medical exami- Bar. The Committee has recommended Triplett’s Mr. suspension a six month nation a DOL doctor. The claimant and (if practice alleged his operator license to law for viola- can be defendant one identi- (5), (6) 1-102(A)(4), fied) DR of the tion of then allowed additional to submit Virginia Re- West Code of Professional reconsidered, have the case evidence and provide: sponsibility again deputy commissioner level. appeal Either can then the decision of side Misconduct—(A) DR 1-102— (4) deputy commissioner Office of Engage not: in conduct involv- shall (OALJ) and, fraud, Judges Administrative Law ing dishonesty, misrepre- or deceit decision, sentation; (5) appeal from to the Benefits Engage in conduct that is that (BRB). jus- Appeal from a prejudicial the administration Review Board deci- tice; (6) Engage other conduct sion BRB lies in the U.S. of the adversely on his fitness to Appeals reflects the injury for the circuit in which practice law. (last 921(c). exposure) arose. 33 U.S.C. § finding are awarded on a of total Benefits respondent regula- The failed to abide disability pneumoconiosis death or due to promulgated Black tions under federal (“black lung”), payable by and are either Act, Lung seq., Benefits 30 901 et U.S.C. (if operator one can be responsible iden- for the collection of fees in black tified) Lung Disability Black or the Trust lung cases. depends pays the claim on a Fund. Who regulations proceed- in this at issue including of factors whether a re- number ing require any attorney ap- fee be identified, sponsible operator can be when Labor; by the proved Department con- filed, date of the claim was last arrangements between sensual exposure. contingent prohibit- fees are and clients 932 of Section Benefits Triplett Mr. his clients to exe- ed. asked (30 incorporates seq.) Act U.S.C. et § contingent allowing him cute fee contracts Longshore provisions several percent of accrued He did not benefits. (33 Compensation Harbor Workers’ Act approval seek of Labor seq.) including 901 et U.S.C. U.S.C. sought arrangements no fee § these provides rep- no one who 928 which Department. from When whatsoever paid resents a claimant shall be fee un- prevailed, they paid Triplett, his clients Mr. approved deputy less commis- it is put money bank who into accounts sioner, or agent, trustee, the board the court before whom “attorney name as or his performed. Anyone who re- escrow” for clients.1 The work individual unapproved subject respondent guilty found ceives an fee is to a committee $1,000 professional reflecting imprisonment on his fine of misconduct Respondent awaiting heard Record testified that he discussion accounts 257-8, that time. among plaintiffs regula- Respondent bar that the DOL has returned might changed contingent interest, tions to allow money, to his clients. therefore, and, money put he into escrow successful, lawyers paid at year, more or both.2 If a defen- are not all in than one compensa- employer dant declines unsuccessful days written thirty receiving tion within Committee, in Supplemental Mem- claim, and there- notice of the the claimant orandum, argues any problems associ- *3 lawyer after of a to win uses the services ated with black fee limitations are commissioner, claim, deputy his the the charge because did not Re- irrelevant board or the court awards a reasonable spondent collecting illegal with fee un- attorney’s paid directly by be the fee to 2-106, der DR but rather “... mis- employer lawyer.3 In where to the representation to the of La- fee, pays attorney’s the claimant the the regarding his to bor intentions collect a part DOL withholds of the benefits when a Complainant’s Supplemental fee.” Memo- prevails claimant until the files a argument is randum. this that, paid petition approved, fee when supported by the Committee’s own Full from the withheld funds. Fact, Panel Hearing Findings Conclu- Regulations the promulgated under sions Law and Recommendation Con- Lung proce- Act Benefits define the Discipline. cerning its Conclusions of awarding attorneys’ dure for and criteria the Law at Committee lists the docu- provides, part: fees. 725.365 20 C.F.R. mentary § evidence which establishes that Respondent approval charged representation No fee for ser- knew DOL fee was and, cases, respect required to a vices rendered claimant with several that he au- any to this valid respec- claim under shall be thorized the DOL to release to the approved subpart. unless under No portion tive the clients of benefits retained prior agreement a fee contract or fees. In these shall be valid.... Respondent also informed DOL that the he going applications was not submit fee provides part: C.F.R. 725.366 § approval. says for their The Committee A representative seeking ser- a fee for these documents performed vices on behalf of a claimant strong ... are evidence the knowl- shall application make therefor to the Respondent way edge of have commissioner, deputy law administrative paid representa- a fee his successful tribunal, judge, appropriate appellate tion of his Black was to clients file be, may as the before whom petition by provided fees as Section performed. applica- services were The Regulations. of the His 725.365 failure supported complete tion by shall be regulation make him abide [sic] statement of the extent and character of 1-102(A)(4),(5) violation of guilty of DR work necessary done ... (6) ... determining criteria for listed fees are evident, 725.366(b).4 (e) then, in 20 C.F.R. It is that the Subsection Committee § provides Respondent’s of 20 C.F.R. 725.366 that a fee found misconduct to be his § deputy knowing regulations, award of the commissioner violation DOL challenged alleged misrepresentation Bene- not may be reviewed his to the fits regarding Review Board. Because a fee is DOL his intentions to collect a Moreover, awarded in the event a fee. had the claimant Committee stated 928(c) (e). proceedings, 2. 33 § U.S.C. entered other infor- mation relevant amount 928(a). 3. 33 U.S.C. § requested. approved of fee No fee shall in- spent preparation payment for clude time 725.366(b) 4. The text of reads: application. approved of a fee No fee shall be (a) Any approved paragraph under of this done on for work claims filed between De- reasonably section shall be commensurate cember and June under necessary with the work done and take shall Act, except Title IV Part B of of the for servic- quality representa- in to account the of the tion, es on behalf qualifications representative, rendered of the claimant in re- involved, complexity legal gard the review of the under issues claim section proceedings level of subchapter. which the claim 435 of the Act and Part 727 of this raised, representative at which level legal the mere Respondent both factual and issues: its Conclusions Lawof DOL, of his choice finding would not denial to a claimant of counsel lied to the such counsel) (or matter, any does not supported by the record. for that have been Respondent com- due necessarily imply establishes that a denial of evidence Fortunately, that he representatives rights. municated to DOL clear, bright to them line standards applications not submit fee Court has set would legal no evidence issues of his There is under which we can decide most the DOL Ass’n. Respondent record that told of this case in v. National Walters Survivors, directly from his he would not collect fees Radiation of S.Ct. fact, (1985). suggests that clients. the record 87 L.Ed.2d *4 case, DOL, suspected the at least in one the in collecting directly Respondent was fees Ill they regulations because
violation
Analysis
Due Process
under Walters
against doing so.5
him admonition
sent
Supreme
In
the U.S.
Court
alleged
gravamen
Respondent’s
of
The
constitutionality of a statute
upheld the
is not statements
professional misconduct
that
that limits to ten dollars
DOL,
his collection of
he made to the
agent
represents
paid lawyer
be
a
or
who
a
knowing
regula-
fees in
violation of DOL
seeking benefits from the Veter
veteran
argues mitigation
in
tions. The defendant
(VA).7 Walters,
an’s Administration
provi-
lung attorneys’ fees
that the black
argued that the fee limi
plaintiff veterans
sions,
applied,
are
make it almost
effectively precluded them from ob
tation
competent
find
impossible for claimants to
and,
therefore,
taining
deprived
counsel
represent
them.
law-
counsel to
Several
property
process
due
of
them of
respondent
yers
appeared on behalf of
who
assertion,
However, in answer to this
law.
experiences repre-
testified about their own
pointed out that due
senting
lung claimants.6 These law-
black
concept
requires
process is a flexible
that
a
were,
best,
paid adequately
not
or
yers
interests;
thus,
balancing of
there is no
paid
all. This
promptly. Some were not
right
hearing
to a trial-like
absolute
either
Court, then,
allega-
if
perceived that
every
representation by
counsel
to
supporting wit-
respondent
tions of
and his
property
proceeding
adjudicates
find counsel
nesses that claimants cannot
applied
right.
specifically,
More
the Court
true,
fee limits
this
because of DOL
were
Eldridge,
the test set out Mathews v.
presented
significant
constitutional
424
537 probability present very process sys that the nature of the due error under the presence inquiry probability indicates that the fundamental tem—and the particular procedure attorneys sharply fairness of a does of would diminish that 326, 105 in any not turn result 473 possibility on the obtained ...” U.S. at S.Ct. at case; rather, “procedural due individual shaped by risk of rules frankly The Court admitted Walters truth-finding pro- error in the inherent possible exactly that it quantify was applied generality cess as danger deprivation erroneous under exceptions.” not the omit- rare [citations present system. the Court ted] quick point percent was out that
473 U.S. at S.Ct. at 3189. appealed of the cases that are to the Board govern- Court went on to conclude that the (BVA) reversed, Appeals Veterans ment interest in fee limitation in veter- suggests relatively danger low ans’ cases to ensure: deprivation if assumes the erroneous one administering
... BVA decision be the “correct” result in managed suffi- every benefits should in a case. U.S. at S.Ct. at ciently way that informal there should be 3192.
no
employment
need for the
of
attor-
an
Walters,
important
In
the
an
court made
ney to
benefits
obtain
to which a claim-
finding
lifting
factual
that
fee
the
limita-
entitled,
ant was
so that
the claimant
not significantly
tion would
reduce the dan-
entirety
would receive the
of
award
the
ger
deprivation
of erroneous
of veterans’
having
lawyer,
to divide
it with a
For
finding
benefits.
the Court relied
[citations omitted]
correlating
rate of
statistics
the
ulti-
Id.
by
mate success
claimants
the BVA
before
representation.
of
mode
These statis-
pointed
Court
that
the
out
tics demonstrated that
who were
claimants
destruction
limitation
YA
bono)
represented by lawyers (pro
were
cases
would result not
in claimants’
only marginally
pro
than
more successful
paying
of
over
to law-
represented
se claimants
claimants
yers,
complicate
but
also
process
would
organizations.8 The
veterans’
Court noted
Congress
keep uncompli-
that
intended to
organizations
that
veterans’
various
service
resulting
cated and non-adversarial. The
supply high quality representation for any
transformation of the current YA
regardless
requests
claimant who
of a
complicated,
to a
adversarial one would
orga-
claimant’s affiliation with a veterans’
virtually require
then
claimants to hire law-
311-312,
nization.
U.S. at
105 S.Ct. at
yers to be successful. 473 U.S. at
Congress
recently
3184.
had
considered
est the fee limitation was fees made as not to in- entitled so great prevail weight. against unnecessary To such a of attorneys duce retention congressional policy required disrupt reasonable claimants and VA un- extraordinarily strong showing necessarily very “... of effective network of following non-attorney 8. The statistics were taken from Other 15.8% upon by record and relied the Court. 473 U.S. representation No 15.2% at at 105 S.Ct. 3192. Attorney/Agent 18.3% ULTIMATE RATES THE SUCCESS BEFORE judicial proposed 9. bill allowed re- limited BOARD OF VETERANS APPEALS BY payment decisions of view of BVA attor- MODE OF REPRESENTATION review, neys' representation that Legion American 16.2% the bill was never enacted. 473 U.S. at American Red Cross 16.8% 105 S.Ct. at note note Disabled American Veterans 16.6% Foreign Veterans of Wars 16.7% had their claims. Others have non-attorney resources that evolved denied, significant attorney subsequently of been absence and have matters.” involvement VA claims to obtain counsel to review unable prosecute their cases. 473 U.S. 105 S.Ct. at at specifically reject The Court in Walters high price of those who A is demanded argument ed the Veter veterans’ Virginia’s of extract the life’s blood West procedures Administration’s are so ans economy from in her moun- the arteries complex, procedurally factually, lungs clogged his with tains. As become they require lawyer representation of dust, pervasive the miner is insidious and Although conceded claimants. the Court given graphic quality projection agent orange or radiation cases of life that lies ahead. nature “complex,” exposure might be considered being progressive, miner feels disease most, constituted, per these two cases help- increasingly himself weakened appeals cent of to the BVA. conform less, provide even the most mod- unable principle ance with the fundamen family. support est means of his procedure depends on the tal fairness of debilitating impact The full extent of truth-finding inherent in the risk error long exposure term dust coal was applied generality recognized passage Title IV of exceptions, than the rare rather Safety Act of Federal Coal Mine persuaded pro that the VA Court was not legislation Congress’ This ac- 1969.10 changed to accommodate cess should be knowledgement of the failure state exception” “complex” the “rare compensation programs to workers’ ad- 328-330, 105 S.Ct. at 3193-3194. *6 lung. devastating dress the effects of black Finally, the Court examined nature legislation only original covered under- In property of the interest at issue. widows, ground miners and their wives or Goldberg Kelly, 90 S.Ct. v. recovery and allowed of benefits (1970), 25 287 the Court held L.Ed.2d disability orig- cases of total or death. The possible recipient subject that a to welfare legislation Part B inal divided claims into termination of was entitled to a filed before 31 December claims—those lawyer. Eldridge, supra, In v. Mathews by Secretary to administered security disability the Court held that social (HEW), of Health and Welfare Education right recipients pre- had no to a benefit Part C filed after 31 claims—those termination, hearing. The trial-like December 1972. Part C claims were to be stake in found that the benefits at VA by Secretary administered of Labor granted proceedings, which are not on the provisions Longshore- certain of the under need, of are closer to the social secur- basis Compensation man’s and Harbor Workers’ ity benefits in Mathews than of Payment Act of 1927.11 Part C claims payments upon “... which the re- welfare responsible opera- by was to be made cipients Goldberg dai- depended their tor, operator responsible or if no could be 332-333, 105 ly subsistence.” 473 U.S. at found, from federal S.Ct. .revenues. 1972, Congress passed Lung In the Black IV Benefits Act12 amended the earlier Lung Legislation Black History legislation. extending In addition cover- age changing to surface miners some currently There exists in State criteria, eligibility post- 1972 Act Virginia large elderly, population West poned Department jurisdiction Labor miners, dependents sick coal their and their filed after 31 December estab- Many have for extended survivors. waited category review lished a transitional for claims periods for administrative 92-303, (1972). (1969). 10. Pub.L. No. No. 86 Stat. Stat. 742 Pub.L. 153 83 11. seq. 901 et U.S.C. July restricting eligibility 1973 and 31 criteria in an ef-
filed between December required companies carry coal make the Trust Fund fort to solvent. qualify or to for self-insurance. insurance sharply 1981 amendment has resulted in a Secretary The Act also allowed the approval reduced rate claims. DOL regulations reopen promulgate HEW to period January that for the statistics show pending or denied claims and review 1982, through March number legislation. them under the new The Secre 58,680, initial claims filed was and the num- tary a set “interim” established of liberal (after approvals appeals ber of final to an regulations surge caused a in Part B BRB) Judge Administrative Law approvals. B Part claims were decided 3,383 approval total rate of 5.8 —a employer liability. individual percent.15 Lopatto, Lung “The Federal Black Pro See gram: A 1983 Primer” 85 W. Va.L.Rev. V (1983). at 686 The DOL encountered much Lung Black Claims Process and difficulty finding “responsible opera Attorney Fee Provisions pay tors” to Part claims due to C considering changing industry. structure of the coal Without the detailed eli spite expense gibility regulations promul of considerable criteria and effort by government, responsible operators gated under each of the amendments dis being only twenty-five V, were identified in history cussed of black thirty percent of the cases. Id. at 689-690. legislation demonstrates that even fil complex. of a claim for benefits is It response expense resulting requires often to determine which surge approvals from the without a cor- applies particular benefit structure to a responding responsible opera- increase of responsible operators claim. When claims, Congress passed tors to choice, represented by lawyers of their at a Lung Benefits Reform Act of 197713 agreement they fee set whatever make and the Black Benefits Revenue Act (there regulation is no of defense attor of 1977.14 These amendments established fees), neys’ represent and the trust fund is Lung Disability the Black Trust Fund to be ed Office the Solicitor financed an excise tax on ton each *7 DOL, appears a claimant who without a underground surface or In mined coal. baffling frustrating inis for a and addition, the fund was made liable for all experience. lung litigation Black has none valid in Part C claims which the miner’s homey, of the claimant-oriented ambiance employment last covered ended before 1 that one finds in the Veterans’ Administra January 1970. These 1978 amendments tion. eligibility also contained liberal criteria that relatively high approval
resulted in a rate. Furthermore, leg- in black cases the regulations specifically islation and contem- immediately, Almost the Trust Fund be- and, plate representation by lawyers unlike came insolvent. The 1978 amendments pay- in the VA claims also previously directed that all denied and attorneys’ ment of For B fees. Part pending cases be reviewed under the new (filed 31, 1972), before claimants large criteria. December This new review created a backlog backlog responsible attorneys’ for the fees. systemic of cases and 31, 1973, Congress legisla- continued. amended the For claims filed after December again (if raising responsible operator tion in the excise either the one can tax 95-239, (1978). approves only 13. Pub.L. No. 92 Stat. trative level in the DOL about 95 5% of claims made under the 1981 amendments. 95-227, (1978). 14. Pub.L. No. 11 92 Stat. Delays Processing Adjudicating and Hearing Employment Claims: Curiae, Moran, 15. See Before Brief of Amicus Jane Housing and Subcommittee the House Com- Also, DOL statistics at note Government a of Cong., Operations, mittee on Government 99th Accounting report Office confirms that the Of- (1985) (GAOReport Compensation 1st Sess. at 55-56 19). HRD-85- fice of Workers' which makes the initial determination of claims at adminis- 540 identified) provided
be
or the Trust Fund is liable for mined from
information
attorneys’
application
fees.
in either
But
situation
accordance with
cri-
approved
725.366(b).
under 20
provided
fee must be
C.F.R.
teria
in 20
C.F.R. §
addition,
725.365
755.366.
the Benefits Review Board has
§§
(i.e.,
contingent
ruled that the
nature
risk
In our consideration of the constitutional-
loss)
litigation may
included as
ity
provisions,
must
the fee
we
examine
(b)
provision
criterion under the
regu-
statute
the words of the
“any
consideration
other in-
allows
lations,
also the
of their
manner
admin-
may
formation which
be relevant
regard
we do
istration.
not find
requested.”
amount
Risden v. Di-
statutory requirements assuring
rector,
No.
BRB
BRBS 819
fees
“reasonable”
are unconstitutional on
(1980).
principle;
their
as a matter of
face
rather
regulatory
we find that the total
scheme is
726.366(b)
Although appears
C.F.R. §
As
unconstitutionally applied.
the U.S. Su-
provide
fees
will fair-
preme
overturning
Court stated
a state
ly
counsel,
compensate competent
thus
compulsory work statute in
v. Reyn-
guaranteeing
process rights,
claimants’ due
olds,
86, 59
235 U.S.
35 S.Ct.
L.Ed. 162 an
record
examination
factual
before
(1914):
us reveals that this is not the case. Nu-
statutes,
face,
attorney
If
upon
such state
their
merous
filed in
affidavits
this case
administration,
testimony
as well
the manner
before the House of
rights
deny
by Representatives
the effect to
have
secured
Subcommittee on Labor
or to nullify
attorney
Federal Constitution
Standards establishes that
thereto,
passed
pursuance
policy
discourages lawyers
statutes
DOL
fail,
omitted,
representing
must
from
em-
claimants so
[citations
phasis supplied]
claimants,
many
with cases
at least
merit,
arguable
are unable to find counsel
90. In
U.S. at
35 S.Ct. at
Griffin
represent
them.
Illinois,
v.
76 S.Ct.
(1956)
L.Ed. 891
the U.S.
Court
VI
which,
held unconstitutional a state law
effect,
transcript
required
perfect
Implementation
Actual
the DOL’s
provide
appeal
criminal
but did not
a free
Attorneys’ Fee System
transcript
indigents.
pointed
any attorneys’
The DOL will not award
out that:
fee until
“final”
decision has been made
Dissenting opinions
argue
here
that the
928(a)
in a case. See 33 U.S.C.
upheld
Illinois Law should be
since
its
Potashnick,
Thompson v.
As
paid
by
we
20 C.F.R.
until
a
725.-
after
final decision
the Ben-
§
366(a) provides
(BRB).
lawyer
that the claimant’s
efits
Board
If
Review
the BRB
a
application
should file
with
depu-
remands the case to the Administrative
commissioner,
ty
Judge,
the administrative
Law
the attorney
law
must wait even
judge
longer
or the Benefits Review Board for the
for his fee. The record reveals that
performed
years,
services
for
before
individual
wait
often five to ten
or
years,
receiving any payment.16
tribunal.
fee is then to be deter-
before
16. A
report by
Accounting
August
years
the Government
took
Of-
more than two
to
fice,
statistics,
relying
adjudicate.
on DOL
states that
When
78% of
time is added for the initial
disposed
cases
ap-
the Office Administra-
administrative determination
well
as an
1, 1983,
BRB,
Judges
does, indeed,
peal
tive Law
between October
and
it is clear that it
pay-
provision
attorney, employed
There is no
the law for
Another affiant
for
ment of interest on
fees.17 One
years
five
the United Mine Workers of
currently
attorney
affiant
states that he is
America, who has
lung
handled black
cases
$30,000 in
owed more than
fees that have
during
years,
all five
and worked exclusive-
paid.
Ami-
been awarded
Brief of
but
ly
lung
years,
on black
cases for
states
two
Moran,
cus Curiae Jane
affidavit of Robert
willing
represent
attorneys
that few
are
to
Cohen,
small, depressed
F.
In a
Jr. at
lung
black
claimants due to
risk of no
$30,000
Virginia
West
is a
town
substantial
(and, therefore,
fee).
recovery
no
This affi-
practi-
amount of
for an
money
individual
points
lawyer
ant also
out
a
that because
long run,
Maynard
tioner.
In the
as John
accepts
generally
the case before either
observed,
Keynes once
we are all dead. In
parties’
complete,
medical evidence is
run, lawyers
run,
the short
have
to
offices
lawyer
usually
unable to assess
mer-
mortgages
and
pay
to
children to educate.
lung
its of a black
claim until after he
attorney
Another
affiant
states that
agrees
represent
the claimant. Further-
allowing
DOL
policy18
has an informal
a more,
nearly impossible
handle a
pro-
maximum
rate of
hourly
$85.00
on pro
few cases
bono basis because the
Commissioner,
ceedings
Deputy
before the
complexity
lung litigation requires
of black
hourly
a maximum
rate of
$125.00
expertise
level of
that is consistent
proceedings
before
Office of Adminis-
large
with a
number of
due to
cases
Id.,
Judges
trative Law
or BRB.
affidavit
necessary
investment of
enormous
time
of Frederick
at 3.
Muth
This same affiant
learn
and keep
the law
current with
average
typical
states that a
case will
be-
changes.19
eight years,
tween
depending
two and
on
the House
Subcommittee
La-
length
appellate litigation,
hearings
bor Standards20 held several
because of this factor and the low rate of
regions
study
coal
problem
compensation (in light
contingent
of its
na-
backlog
systemic
of black
cases. Two
ture),
qualified
accept-
attorneys
fewer
lawyers who testified
before
Subcom-
ing
claims than
required
Wise, Virginia,
mittee
who have been
process existing meritorious claims. He
representing
claimants since the
points
also
out
"...
it has become
enacted, provided
specific
was
ten
first law
increasingly common to find
instances
examples
approved,
where fees were
hearing
of Labor
dockets
payment
no
received for
least two
populated primarily
pro
with
se claimants
years,
years
some
five
...” and that
law firm
inun-
his
has been
Another
dated
more.21
testified that
prospective
clients
have
who
been
retain
there are
his office which
unsuccessful
efforts to
competent representation.
paid
Id. at 4.
fees were awarded but not
for more
years
operator
Delays
responsible
pay
take
to resolve
claim.
in Process-
must
interest if it fails
ing
Adjudicating
initially
Claims: Hear-
benefits awarded either
commissioner,
Employment
Housing
appeal.
deputy
Sub-
or on
30 U.S.C.
Before
committee
House
Govern-
20 CFR
§
Committee on
725.608.
Operations,
Cong.,
ment
99th
at 41
1st Sess.
(1985) (GAO
HRD-85-19).
Report
policy
does not
18. The DOL
have a formal
estab-
lishing
hourly
maximum
rate. Ashmore v.
*9
Director,
(1981).
BRB No.
3 BLR 1-374
17.Although the
seems
DOL
cavalier about
lawyers
years
fact that
must wait for
to collect
Appendix A.
19. See
fees,
receiving
fees without also
interest on the
we note that the Internal
Revenue Service
20. Subcommittee of the House Committee on
Rhadamanthine
in its collection
Education and Labor.
government
payee
when the U.S.
is a
rather
payor.
any penalty
than a
In addition to
that
assessed,
might
Investigation
properly
Backlog
collects
21.
in
IRS
taxes,
any
Hearings
unpaid
interest on
overdue or
even if
cases:
the Subcomm. on Labor
before
Comm,
taxpayer
granted
been
has
an extension of
the House
Relations
Labor,
on Education and
pay.
Cong.,
time in which to
See 26 U.S.C.
§
99th
1st Sess. 82-83 and 88-89
(1985).
seq.
CFR
et
We
that
§ 301.6601-1
also note
years.22
if
assume
than three
Even we
VII
examples
“exceptional”
that these
are
in
Application Walters Criteria
way,
very
“excep-
some
existence of
Lung Litigation
to Black
lawyers
required
tional”
in
are
cases which
When the criteria set forth
the U.S.
operation
to subsidize the
of the federal
Court
to assess the
Walters
government
chilling
effect
must have
on constitutionality
ap-
of fee
limitations
lawyer willingness
system.
to enter the
cases,
plied
lung
appar-
it
black
becomes
pro-
ent
Fifth
that the
Amendment’s due
Finally,
lawyer
many
one
testified that
requires
provisions
cess clause
that the
for
colleagues
unequivocal-
his
had
stated
"...
awarding attorneys’
lung
fees in black
ly
they
lung
not take black
would
must,
fact,
repre-
allow claimants
delay
receiving
cases because of the
by competent
sentation
counsel.
possibility
for their work as well as the
they may
receive no fee at all.”23
When
examined the
Walters
Virtually
lawyers
government
all of the
who testified
nature of the
interest in limit-
fees in veterans’
it found that
before this subcommittee stated that
purpose
of the limitation was to avoid
ever,
rarely,
lung
if
took black
cases due to
lawyers’
sharing
needlessly
claimants’ ben-
decision,
long delay
before
addi-
procedures
efits. The Court found that VA
delay
having
paid,
tional
fees
non-adversarial;
designed
to be
uncompensated
receiving
pay-
risk of
no
lawyers
large
that if
become involved on a
ment, particularly
light
signifi-
complicated
scale a more
and adversarial
cantly
approval
lower
rate under the 1981
process
any improve-
will evolve without
eligibility rules.
ment
terms of rates of error over the
then,
hardly surprising
It is
that most
system.
current
in black
choice,
lawyers,
any
at least most who have
litigation, it
Congress
is clear that
intended
choose to
require
handle cases that do not
lawyers
be used
claimants because
year delay
payment.
a five
for fee
The
specifically provides
lawyers,
and for
currently keep
two factors that
most attor-
payment of a
attorney’s
“reasonable”
fee.
neys
accepting
from
cases are
although
U.S.C.
928. And
the VA
long delay
in payment,
relatively simple
provision
interest,
pre-
lack
non-adversarial,
lung process
the black
contingent
miums to offset the
nature of
complex
both
and adversarial.26
the work. This latter factor has become
government
requiring ap-
interest in
increasingly prominent
approval
as the
rate
proval
steadily
following
declined
the enact-
cases is to
respon-
ensure that neither the
ment of the 1981 amendments. DOL sta-
operator
sible
nor the Trust Fund will be
tistics
approval
demonstrate an
rate
overcharged.
prohibition against
di-
claims decided under the 1981 law of 22.7%
agreement
rect
between claimant and his
for claimants before the Administrative
lawyer
protect
is to
improv-
claimants from
Judges,
Law
approval
and an overall
rate
agreements
needlessly deplete
ident
approval
significant-
This
5.8%.24
rate is
their benefits.
Califano,
See Moore v.
ly
claims,25
smaller than that for VA
(1979).
F.Supp. 146 at 149
Unfortunately,
demonstrates not
necessity
of law-
regulations
the result of these
has been to
yer representation, but the substantial risk
make
almost entirely unavailable
that a
Indeed,
will receive no fee at all for
although
claimants.
the ordi-
his work.
nary
upon
claimant is not called
to share
14,400
22.
Id. at
approximately
194.
more were allowed after
appeals.
sation for which the miner has exception paid dearly, The statute has one that allows eligible disability payment survivors of a death. If due of benefits either with total or 1, 1978, truly concept, who dies before March and who a flexible as the U.S. miner held, years employed in coal mines repeatedly can at least 25 Court has there 30, 1971, prior justification to June unless it is established be no for an inflexible rule that partially died, property miner he was not in benefits that when the claimants have no they qualify lung. yet totally U.S.C. disabled due to for which but which do not 921(c)(5) (1981). receive. *12 difficulty cases, addition to the mathematical lung however, black no contract be- computing contingency multipliers, allowed, tween a claimant lawyer and his pointed Court strongest out that one of the lawyers so accept forced to the risk of objections penalizes to them is that “... it receiving no fee at in large majority defense, the defendant strongest with the of cases. plaintiff’s forces him to subsidize the Furthermore, lung black when attorney bringing for other unsuccessful either the claimant or the Trust Fund must against actions other defendants.” Id. at fees, pay attorneys’ danger there is no 3085, citing Leubsdorf, Contingency “The losing defendants’ compensating plaintiffs’ Awards,” Attorney Factor in Fee 90 Yale lawyers prevailing against for not other 473 at
L.J. 488-491. The Court also noted defendants in other cases—the factor that contingency multiplier might encour- so disturbed the Valley. Delaware age risky litigation because the less chance Also, it is clear from the evidence before us prevailing, there is of higher the multi- that the administration lung of the black plier. Id. at 3086. Justice has, provisions fact, fee O’Connor, as dissenting well as the four caused claimants to face substantial diffi- Justices,33 argued reasoning that this cor- finding culties in willing counsel repre- rectly suggests awarding contingency them, sent specifically factor required by enhancement based on the par- merits of a the Court in Delaware Valley for enhance- may undesirable, ticular case be but the ment of in fee-shifting cases. Id. fact that it particu- be undesirable in a not, lar case does as a matter principle, IX undercut justification substantial contingency enhancement in types some It is clear from the evidence before (Blackman, J., cases. Id. at 3097 dissent- lawyers us that most unwilling rep ing)- lung resent black claimants because of the inadequate fees awarded the DOL. On
The Court held that enhancement of a hand, the one years takes a matter of fee for the fee-shifting risk of loss in cases case, litigate a and often an additional should two exceptional be made cases years after a successful when conclusion for a the risk of no recovery is clear from lawyer paid to be his fee. when, the outset of When there is a case and without risk- enhancement, provision interest, no plaintiff and a “... would have faced faces overhead costs that post substantial cannot be finding difficulties in poned, any lawyer counsel in will the local or other turn his attention to relevant mar- Id, addition, paying ket.” cases. In at 3089. The Court because there concluded systematic these elements no present were not enhancement of fees to com pensate lawyers before it and held that for the the District risk of loss—a multiplier very Court’s use of a risk in that case substantial decided under iihproper. the 1981 lawyers law—most who have a prefer contingent choice will fee cases that The Court’s decision Valley Delaware provide premiums for risk. preclude does not contingency use of a multiplier in lung black cases. suggest Delaware We do not what would Valley applies involving to cases fee-shift- system awarding attorneys’ best fees in ing statutes that are different from the cases. That properly decision is attorney provisions in black Congress left to promulgat- DOL Most importantly, fee-shifting statutes do regulations pursuant congressional ability plaintiffs affect the legislation to enter within the bounds set into do, whatever contracts however, desire with Constitution. We find that and thus increase the currently law- administered de- yer’s beyond ultimate fee the amount nies claimants for prop- fee-shifting awarded under a erty statute. by severely without due of law Blackman, Brennan, 33. Justices Marshall and Stevens. ac- interest-bearing escrow representa- ceived into right to obtain
restricting their
regulations
highly
hope
in the
that the
by competent counsel
counts
the vain
tion
*13
lung litigation.
contingent
of black
changed to allow
adversarial
would be
that this
agreements. We do not believe
Triplett, was
respondent, George
The
professional
constitutes clear evidence
tragic choice
making a
between
forced into
by Respondent.
misconduct
He either had to refuse
conflicting duties.
miners,
deserving,
represent
disabled
to
Legal Ethics has the
The
on
Committee
practice, or
bankrupting his
run the risk of
full,
preponderating
prove
to
burden
regulations. The U.S. Su-
the DOL
violate
Respondent
is
clear
and
evidence
Siebold,
Parte
preme Court stated
Ex
professional
under DR
guilty of
misconduct
(1879)
that:
F.2d [4] 9) and because the Trust Fund, in- legal arguments set forth in intervenor’s financed the coal (26 ( 4121(a), petition Supp. IV) its for rehear- support dustry & brief U.S.C. argu- ing. 9501), concludes that the currently court almost billion $3 of La- Treasury. ments advanced debt United States See upon the ini- maturely Maree, were considered supra. bor De Affidavit of James L. are ade- tial of this case and submission Higher attorney’s fees increase could original in the quately court’s debt, addressed expense more as could the opinion. prolonged processing from attor- (cf. ney participation in cases seeks to overcome the court’s Intervenor at 3191- at 324-326 S.Ct. [105 paid inade- conclusion that 3192]), by requiring hiring latter slowly the current quately and too under personnel of more at the and Bene- AU Department of Labor fee limitation prevent fits Review Board levels to through following representation: rebuilding backlog of a ... Such from “Nor is reasonable to conclude Fund, thereby increased costs to the *15 respondent that would have record government in the of in- form having experienced delays inordinate debt, given creased must be serious con- petitions approved. his fee In the one sideration, as the admonished peti- instance he a fee where submitted Mathews, 424 U.S. at S.Ct. at [96 obtaining a tion after Trust Fund award though they are even not control- 909] level, he re- deputy at the commissioner ling. point, govern- At some costs payment, requested ceived at the rate public (including ment and the the result- and for more hours than he documented ing need to cut limited resources else- (but requested), approxi- less than he where) indi- outweigh the benefit to the mately application eight months after his safeguard.” of vidual the additional applied In instance he ... the one where respon- pp. to an for a fee in a infer AU award Intervenor’s brief at 17. We case, arguing received an operator sible he that the Solicitor is that the cur- award, despite operator’s objections, system, rent fee limitation which discour- appli- ages adequate representation, justified within 11 months of the date of his is cation, grounds and within months of the AU’s on the that if claimants had access receipt lawyers, prevail of it.” claimants would more of often and raise the costs the black p. at that an Intervenor’s Brief We find program. Congress’s not find We do that eight delay eleven in fee month and month authorizing purpose limitations on fees payments simply support findings of eligible to reduce the number of claim- fact and of set forth conclusions law prevail who ants would receive bene- opinion. original court’s fits. constitutionality Intervenor defends the explicit Intervenor makes reference system applied by arguing as specially compiled statistics for its rehear- that a different more ex- would be ing petition Department in this case. The pensive in terms of the cost of law- both specially compiled Labor’s own statistics yers’ fees terms the added burden (the shot) conclusively Solicitor’s best dem- system affording a fair claimants onstrate that at the administrative law opportunity regard heard. to be this level, represented judge claimants coun- intervenor asserts: prevailing have a likelihood of that is sel legitimate government “Another interest greater appearing 2.5 times than claimants responsible operators is to ensure regard says: se. pro Solicitor and the Trust Fund will over not be compiled by charged. op. “Statistics recognized (slip The Court 28) sample resulting in a very of recent cases gave weight but little to this awards denials of benefits show that interest. This is substantial be operators’ rights represented cause the AU constitutional claimants are (Levins \y. Bd.], prevail Review level of the 92% 29% Benefits
versarial adjudica- nature represented. system....” the time when While the tory Although we know the statistics also that the unintentional, show small minori- irony is help we cannot ty pro se claimants have 11.6% arguing infer that the if Solicitor rate, certainly success this difference claimants have full and fair access to law- significant not so as to establish that yers, they might reprehensibly do adver- lawyers are indispensable in the BLBA things competent sarial such as introduce process particularly light claims evidence, regulations, vig- study the — representation rate.” 92% orously prosecute cases, perhaps even p. appeal brief Intervenor’s find the courts. We simply Solicitor has reinforced with Accordingly, is Adjudged, Ordered and more elaborate statistics the conclusion petition Decreed that re- Intervenor’s original opinion— that we reached in the be, hearing hereby and the same is denied. namely, prevail- claimant’s chance of itAnd is further Ordered that this Order represented when he is by counsel is printed original as an addendum to the substantially higher appears than he when opinion. pro se. represented by MILLER, Justice,
When claimants dissenting: counsel prevail frequently pro times 2.5 se traditionally We have stated that claimants, agree we cannot Solici- scope appellate review is confined to tor that the difference not constitutional- those issues decided at the trial level ex ly significant purposes. due *16 cept the jurisdic where lower court lacked argues Solicitor that: tion to act in the first instance. This has “Assuming, conceding, ap- that language coalesced into the reflected plicants property have a interest under Syllabus 2 of Duquesne Light Point Co. v. clause, process the due their interest 506, Dep’t, Tax 174 State W.Va. 327 S.E.2d intangible receiving the “ (1984): pass 683 ‘This Court not on a will applications. fair consideration nonjurisdictional question which not They losing only risk a chance at benefits by been decided the trial court the first rather than benefits themselves.” 2, Syllabus instance.’ Point Sands v. Se p. Intervenor’s brief at we Co., 522, curity Trust 143 102 W.Va. original stand our conclusions: We be- (1958).” 733 S.E.2d “receiving lieve fair that consideration” is question constitutionality Here exactly type of abstract entitlement of the black fee statute could have process principles designed that due below, been raised but it not. was Because protect and enhance. below, the issue was not raised there is no Finally, carefully we have considered developed. parte factual record The ex argument of following the Solicitor: affidavits filed ami- as attachments “Moreover, as in 473 U.S. at are, mind, my cus brief of Jane Moran 326 S.Ct. at there is also a risk 3193] [105 woefully predicate inadequate to the factu- attorney representation increased al conclusion majority. reached may exacerbate the adversarial nature of Furthermore, majority’s reliance on system, adjudicatory re- v. Walters National Ass’n
sulting Radiation increased administra- [sic] Survivors, 305, 3180, government tive to the 473 U.S. 105 S.Ct. 87 delay costs deserving (1985), completely claimants.” L.Ed.2d 220 misplaced. find, contrary statement, I majority’s to the p. Intervenor’s brief at Because re- 85, “clear, Walters does set sponsible operators may be as adversarial bright line standards.” did What Walters claims, as they wish the defense of uphold statutorily was to the ten fee dollar may spend as money much choose agent fees, rep- authorized for a lawyers’ who we have a hard time understanding seeking how claimant resented veteran who representation was veter- by lawyers is chiefly liable “exacerbate the ad- an’s benefits. It did so because
550
(1979) take an extraordinari- It would ]. legal proposi- began strong showing probability with this fundamental of error ly tion: present system prob- under —and constitutionality of an “Judging the presence attorneys ability that Congress properly considered Act possibility— sharply diminish that would ‘ duty most delicate gravest “the holding that the fee limita- to warrant a upon per- is called process of law. tion denies claimants due ’ 453 Goldberg, form.” Rostker v. deciding no that no We have hesitation 478, 486, 57, 101 S.Ct. 64 L.Ed.2d [69 showing was made out on the such 2646, (1981)] (quoting Blodgett v. record before the District Court.” 142, 148, Holden, 276 U.S. 275 U.S. 3192, 87 L.Ed.2d U.S. at 105 S.Ct. at (1927)(Holmes, 72 L.Ed. 48 S.Ct. at 236.1
J.)),
analysis here
begin
our
with
we
case,
simply
In this
I
do not believe
customarily
no
deference than we
less
strong showing”
“extraordinarily
such an
duly enacted and care-
must
to the
generalized ex
has been made based on the
fully
coequal
of a
considered decision
filed
this Court.2
parte affidavits
of our Govern-
representative branch
complaint
Here the main
the several
105 S.Ct. at
ment.” 473 U.S.
affiants is not so much the amount of the
L.Ed.2d at 232.
received,
receiving
delay
line in
Court’s bottom
Wal-
backlog
because
showing
that there
no factual
ters was
I know of no court which has seized on this
deprived
that the fee
veterans
system.
fact to
a fee
void
process
Eldridge,
due
under Mathews v.
893,
considerable
processes being forced to con- rigid
form to a constitutional code of
procedural necessities. Parham v. See 608,
J.R., [584], 16, n. 61 [2507, n.
L.Ed.2d