Thatcher v. Industrial Commission , 115 Utah 568 ( 1949 )

I agree with the result and generally with the reasoning of the prevailing opinion. But I do not see how we can reach this result without overruling Ellis v. Industrial Comm., 91 Utah 432,64 P.2d 363.

In my opinion, while, under Sec. 42-1-81, U.C.A. 1943, the Industrial Commission is authorized to regulate and fix attorneys' fees, where attorneys are employed in industrial accident cases, it may only fix such fees as will reasonably compensate the attorney for his services rendered. When the amount of the fee as fixed by the commission is either so low or so high that it is beyond the bounds of what is reasonable compensation for the services of the attorney, then it is arbitrary and this court must set aside such an award. In order to determine what is a reasonable fee in a given case the commission should obtain all the evidence it reasonably can under the circumstances, and to refuse to grant any hearing would also be to act arbitrarily. The commission is not bound to follow the expert opinion evidence on this question and in some cases might be justified in finding contrary to all of such evidence. It should always keep in mind that a person who has suffered an industrial accident receives the very minimum of compensation and that the attorney's fees must be held down to as low a sum as possible within reason.

The above section of the statute does not expressly require the commission to fix the attorneys' fees at a reasonable amount but I think that was intended. The fee of an attorney is his reward or wages or compensation for his professional services. It is not a mere donation which may or may not be withheld and ordinarily he is entitled to what his services are reasonably worth. He is as much entitled to reasonable compensation for his services in this kind of a case as anyone else who renders service. So when the statute authorized the commission to fix attorneys' fees it was intended that the amount fixed would be within the bounds of what constitutes reasonable compensation for such services. I recognize that industrial accident cases are different from ordinary matters which a lawyer is employed to attend to. However, I do not believe that the legislature intended this kind of work to be done without compensation or for unreasonably low compensation. If we adhere to the rule that such compensation may be so fixed then many cases will have to be litigated without the benefit of legal counsel and many a deserving person who is entitled to compensation will be barred therefrom because the commission does not understand the law correctly, and the applicant will not be fortunate enough to contact a lawyer who would take his case, knowing that he would not be adequately compensated for his services. The attorneys' fees should therefore be fixed within the bounds of reasonable compensation for the services rendered and should be sufficient so that the average lawyer can afford to take that kind of case without losing money by such employment.

Of course there may be a wide range between what one person, lawyer or judge would consider a reasonable fee in a given case. And in each mind there would be some difference between the highest and lowest bounds within the range of reasonableness. In all cases the problem is first for the commission to determine and only when the commission refuses to hear evidence thereon or after hearing, acts beyond the bounds of reasonableness, does this court have the power to set aside its decision. This is the same rule as is applicable in any other finding of fact. Here the fact found is what is a reasonable attorneys' fee. Where the evidence does not reasonably justify the finding then it is arbitrary and we set it aside. This court is particularly competent to pass on this question because its members are lawyers and have some knowledge of the value of such services.

In order to reach this conclusion I think we must overrule theEllis case, supra. This is what I understand the dissenting opinions in that case held, but I think such a holding is contrary to the majority holding. I think the difference was more than merely the difference in opinion as to what amount would be necessary to bring the award within the bounds of a reasonable fee. The basis of the majority opinion in that case was as expressed by Mr. Justice Folland that [91 Utah 432, 64 P. 371],

"where the circumstances call for a substantial fee, the commission would be acting arbitrarily if it fixed a mere nominal fee."

In other words, we there held that as long as the fee fixed was more than a nominal sum regardless of how unreasonably low it might be, this court could not set aside the decision. Such is clearly not the rule adopted here in the prevailing opinion. That opinion requires that the fee fixed must be within the range between the highest and the lowest fee which satisfies the requirements of reasonableness. The fee of $375 is not a nominal fee any more than the fee of $300 was in the Ellis case and if we adhered to the same rules in this case which we followed in that case, we would have to affirm the decision of the Commission. To overrule the decision in principle without expressly so stating, tends to create confusion as to the effect of our decision.