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Advisory Opinion 29

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State Disciplinary Board
Advisory Opinion No. 29

November 20, 1981

Guidelines for Disputes with Attorneys' Fees Set by Workman's Compensation Board

Pursuant to the provisions of the Rule 4-223 of the Rules and Regulations for the Organization and Government of the State Bar of Georgia (219 Ga. 873, as amended), the State Disciplinary Board of the State Bar of Georgia, after a proper request for such, renders its opinion concerning the proper interpretation of the Code of Professional Responsibility of the State Bar of Georgia.

Factual Background:

The State Board of Workers' Compensation is authorized by Georgia Law to approve the fee of attorneys who represent workers' compensation claimants. Occasionally, the Workers' Compensation Board may approve an attorney's fee, which it has determined is reasonable, but which is less than the amount the attorney and client (workers' compensation claimant) have agreed upon in the fee contract. The lawyer may then appeal the determination of the Workers' Compensation Board concerning his fee to the Superior Court. In such an appeal, the only issue before the Superior Court is the decision of the Superior Court in favor of the attorney is to reduce the client's/claimant's share of the workers' compensation award while increasing proportionately the lawyer's share of the award.

Question Presented:

Does a lawyer who has represented a claimant in a workers' compensation case have an ethical obligation to advise his client of his right to obtain independent counsel to represent the client when the lawyer decides to appeal the amount the Workers' Compensation Board has approved as the lawyer's fee?

A lawyer has a duty to exercise his independent professional judgment at all times on behalf of and for the protection of his client. Whenever the lawyer's personal interests or the interests of others cause him to compromise his loyalty and objectivity to his client, a conflict of interest exists, and it is improper for the lawyer to undertake or continue representation of the client under these circumstances.

An association marked by trust and intimacy develops between a client and a lawyer who has represented that client throughout vigorous workers' compensation litigation, and who has obtained a satisfactory workers' compensation award for the client. If a lawyer decides that he will appeal the attorney's fee award of the workers' Compensation Board to the Superior Court, the client may not understand that suddenly he and the lawyer are adversaries, and the lawyer will no longer be acting his best interest. The lawyer should, therefore, explain to the client that since he is appealing the amount of fees the Board has approved, he is seeking to reduce the amount of money the client will receive in order to increase the amount he will receive. For that reason, the lawyer should take care to make a full disclosure to the client of their respective positions during the appeal and advise the client of his right to obtain independent counsel to advise him during this stage of the litigation.

The Georgia Supreme Court indicated in Arey v. Davis, 233 Ga. 951 (1975), that even when the original attorney-client relationship has ended, if a fiduciary relationship continues to exist between a lawyer and client, the lawyer is required to advise the client to seek independent legal advice from another lawyer before pursuing a course of conduct to protect the interest of the lawyer at the expense of the client.

It should be noted that there is no conflict of interest in those cases in which the claimant's attorney seeks an assessment of punitive attorney's fees under the provisions of Ga. Code Ann. 114-712 (b). In these instances, the employer-insurer will be responsible for the additional fees rather than the client/claimant.

Conclusion:

In workers' compensation cases in which the employee-claimant's attorney seeks to increase his fee by appealing the Board's fee determination to the Superior Court, the lawyer is involved in a conflict of interest if he does not give the client a full explanation concerning their conflicting positions in the appeal and advise the client of his right to obtain independent legal counsel to protect the client's interests during this stage of litigation.



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