Committee on Legal Ethics of the West Virginia State Bar v. Triplett

• Decision Date: 26 October 1988
• Docket Number: No. 18396,18396
• Citation: 378 S.E.2d 82,180 W.Va. 533
• Parties: COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. George R. TRIPLETT.
• Court: West Virginia Supreme Court

Page 82

378 S.E.2d 82

180 W.Va. 533

COMMITTEE ON LEGAL ETHICS OF the WEST VIRGINIA STATE BAR v. George R. TRIPLETT.

No. 18396.

Supreme Court of Appeals of West Virginia.

Oct. 26, 1988.

Rehearing Denied Dec. 20, 1988.

Syllabus by the Court

1. The U.S. Department of Labor's system of awarding attorneys' fees in black lung cases violates the Due Process Clause of the Fifth Amendment to the Constitution of the United States.

2. An unconstitutional law is void, and Respondent is not guilty of professional misconduct for his failure to follow the unconstitutional black lung fee limitations of the U.S. Department of Labor.

3. "In a court proceeding prosecuted by the Committee on Legal Ethics of the West Virginia State Bar for the purpose of having suspended the license of an attorney to practice law for a designated period of time, the burden is on the Committee to prove by full, preponderating and clear evidence the charges contained in the complaint filed on behalf of the Committee." Syllabus Point 1, Committee on Legal Ethics Jack M. Marden & Cynthia Santoro Gustke, Charleston, for West Virginia State Bar.

v. Lewis, 156 W.Va. 809, 197 S.E.2d 312 (1973).

Frederick D. Fahrenz, Charleston, for George R. Triplett.

NEELY, Justice:

This is a disciplinary proceeding brought by the Committee on Legal Ethics of the West Virginia State Bar (the "Committee") against George R. Triplett, a member of the Bar. The Committee has recommended a six month suspension of Mr. Triplett's license to practice law for his alleged violation of DR 1-102(A)(4), (5), and (6) of the West Virginia Code of Professional Responsibility which provide:

DR 1-102--Misconduct--(A) a lawyer shall not: (4) Engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (5) Engage in conduct that is prejudicial to the administration of justice; (6) Engage in any other conduct that adversely reflects on his fitness to practice law.

The respondent failed to abide by regulations promulgated under the federal Black Lung Benefits Act, 30 U.S.C. 901 et seq., for the collection of attorneys' fees in black lung cases.

The regulations at issue in this proceeding require that any attorney fee be approved by the Department of Labor; consensual arrangements between lawyers and clients for contingent fees are prohibited. Mr. Triplett asked his clients to execute contingent fee contracts allowing him 25 percent of accrued benefits. He did not seek Department of Labor approval for these arrangements and sought no fee whatsoever from the Department. When his clients prevailed, they paid Mr. Triplett, who put the money into bank accounts in his name as agent, trustee, or "attorney on escrow" for the individual clients. ¹ The committee found the respondent guilty of professional misconduct reflecting on his fitness to practice law in violation of DR 1-102(A)(4), (5) and (6).

I Introduction

Black lung cases are initiated when a miner files a claim with the Department of Labor (DOL). The claim is then reviewed at the administrative level by a claims examiner or the deputy commissioner, and approved or denied after a medical examination by a DOL doctor. The claimant and defendant operator (if one can be identified) are then allowed to submit additional evidence and have the case reconsidered, again at the deputy commissioner level. Either side can then appeal the decision of the deputy commissioner to the Office of Administrative Law Judges (OALJ) and, from that decision, appeal to the Benefits Review Board (BRB). Appeal from a decision of the BRB lies in the U.S. Court of Appeals for the circuit in which the injury (last exposure) arose. 33 U.S.C. § 921(c). Benefits are awarded on a finding of total disability or death due to pneumoconiosis ("black lung"), and are payable by either the responsible operator (if one can be identified) or the Black Lung Disability Trust Fund. Who pays the claim depends on a number of factors including whether a responsible operator can be identified, when the claim was filed, and the date of last exposure.

Section 932 of the Black Lung Benefits Act (30 U.S.C. § 901 et seq.) incorporates several provisions of the Longshore and Harbor Workers' Compensation Act (33 U.S.C. § 901 et seq.) including 33 U.S.C. § 928 which provides that no one who represents a claimant shall be paid a fee unless it is approved by the deputy commissioner, the board or the court before whom the work is performed. Anyone who receives an unapproved fee is subject to a Regulations promulgated under the Black Lung Benefits Act define the procedure and criteria for awarding attorneys' fees. 20 C.F.R. § 725.365 provides, in part:

                fine of $1,000 or imprisonment for not [180 W.Va. 535] more than one year, or both. 2  If a defendant employer declines to pay compensation within thirty days of receiving written notice of the claim, and the claimant thereafter uses the services of a lawyer to win his claim, the deputy commissioner, the board or the court awards a reasonable attorney's fee to be paid directly by the employer to the lawyer. 3  In cases where the claimant pays the attorney's fee, the DOL withholds part of the benefits when a claimant prevails until the lawyer files a fee petition that, when approved, is paid from the withheld funds
                

No fee charged for representation services rendered to a claimant with respect to any claim under this part shall be valid unless approved under this subpart. No contract or prior agreement for a fee shall be valid....

20 C.F.R. § 725.366 provides in part:

A representative seeking a fee for services performed on behalf of a claimant shall make application therefor to the deputy commissioner, administrative law judge, or appropriate appellate tribunal, as the case may be, before whom the services were performed. The application shall be supported by a complete statement of the extent and character of the necessary work done ...

The criteria for determining fees are listed in 20 C.F.R. § 725.366(B). SUBSECTION (E)⁴ of 20 C.F.R. § 725.366 provides that a fee award by a deputy commissioner that is challenged may be reviewed by the Benefits Review Board. Because a fee is awarded only in the event a claimant is successful, lawyers are not paid at all in unsuccessful cases.

The Committee, in a Supplemental Memorandum, argues that any problems associated with black lung fee limitations are irrelevant because they did not charge Respondent with collecting an illegal fee under DR 2-106, but rather with "... misrepresentation to the Department of Labor regarding his intentions to collect a fee." Complainant's Supplemental Memorandum. However, this argument is not supported by the Committee's own Full Hearing Panel Findings of Fact, Conclusions of Law and Recommendation Concerning Discipline. In its Conclusions of Law at 6-7, the Committee lists the documentary evidence which establishes that Respondent knew DOL fee approval was required and, in several cases, that he authorized the DOL to release to the respective clients the portion of benefits retained to pay attorneys' fees. In these cases, Respondent also informed the DOL that he was not going to submit fee applications for their approval. The Committee says these documents

... are all strong evidence of the knowledge of Respondent that the way to have a fee paid for his successful representation of his Black Lung clients was to file a petition for fees as provided by Section 725.365 of the Regulations. His failure to abide by the regulation make [sic] him guilty of violation of DR 1-102(A)(4), (5) and (6) ...

It is evident, then, that the Committee found Respondent's misconduct to be his knowing violation of the DOL regulations, not his alleged misrepresentation to the DOL regarding his intentions to collect a The gravamen of Respondent's alleged professional misconduct is not statements he made to the DOL, but his collection of fees in knowing violation of DOL regulations. The defendant argues in mitigation that the black lung attorneys' fees provisions, as they are applied, make it almost impossible for claimants to find competent counsel to represent them. Several lawyers who appeared on behalf of respondent testified about their own experiences representing black lung claimants. ⁶ These lawyers were, at best, not paid adequately or promptly. Some were not paid at all. This Court, then, perceived that if the allegations of respondent and his supporting witnesses that claimants cannot find counsel because of DOL fee limits were true, this case presented a significant constitutional issue. Accordingly, we invited interested parties to file additional briefs.

fee. Moreover, had the Committee stated [180 W.Va. 536] in its Conclusions of Law that Respondent lied to the DOL, such a finding would not have been supported by the record. The evidence establishes that Respondent communicated to DOL representatives that he would not submit fee applications to them in most of his cases. There is no evidence in the record that Respondent told the DOL he would not collect fees directly from his clients. In fact, the record suggests that the DOL, at least in one case, suspected the Respondent was collecting fees directly in violation of the regulations because they sent him an admonition against doing so. ⁵

II The Constitutional Issue

The question now before us is whether the federal limits on attorneys' fees in black lung cases violate the due process clause of the Fifth Amendment to the Constitution of the United States by effectively denying claimants necessary access to counsel. Answering this question raises both factual and legal issues: the mere denial to a claimant of counsel of his choice (or for that matter, any counsel) does not necessarily imply a denial of due process rights. Fortunately, the U.S. Supreme Court has set clear, bright line standards under which we can decide the legal issues of this case in Walters v. National Ass'n. of Radiation Survivors...