Can a lawyer charge a workers' compensation claimant more than the fee fixed by statute?

Plain-English summary

The Workmen's Compensation Board asked whether it is unethical for an attorney to charge claimants before the Board fees in excess of the amount fixed by KRS 342.320. The committee answered that it is.

A majority of the committee reasoned that because the statute fixes the amount of the fee and deprives the Compensation Board of the right to deny or reduce the fee except in the case of solicitation, the attorney is bound by the statute. On that basis, it concluded that contracting for a fee in excess of the statutory amount would be not only unethical but unlawful.

Currency note

This opinion was issued in 1962 under the former Canons of Professional Ethics (in effect in Kentucky from 1946 to 1971) and predates both the 1990 adoption of the Rules of Professional Conduct (SCR 3.130) and the substantial 2009 revisions to those rules. The statutory fee scheme it describes (KRS 342.320) has since been amended. Subsequent rule amendments and later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against the current rules and statute before relying on any specific point mentioned here.

Common questions

Q: Can a lawyer charge a workers' compensation claimant above the statutory fee?

A: Under this opinion, no. The committee held the attorney is bound by the statute fixing the fee, and charging more would be both unethical and unlawful.

Q: Why did the statute control the fee?

A: The committee noted the statute fixes the fee and deprives the Compensation Board of the right to deny or reduce it except in the case of solicitation, so the lawyer must abide by the fixed amount.

Background and rules framework

The opinion applied the fee-reasonableness principles of the former Canons of Professional Ethics in the specific context of a statutory fee cap, KRS 342.320, governing fees in workers' compensation claims. The modern analog is Model Rule 1.5 (fees, including the rule that a fee must be reasonable and may be limited by law), with Kentucky's counterpart at SCR 3.130(1.5).

Citations and references

Rules of Professional Conduct:

• Canons of Professional Ethics (reasonable fees); modern analog Model Rule 1.5

Statutes:

• KRS 342.320 (statutory attorney fee for Workmen's Compensation Board claims)

See also

• KBA Ethics Op. E-73: Fee After Discharge in a Contingent-Fee Case
• KBA Ethics Op. E-14: Family Lawyers and Estate Fees

Source

• Landing page: https://kybar.org/For-Members/Rules-Ethics-Information/Ethics-Opinions
• Original PDF: https://kybar.org/Portals/0/Admin/Ethics%20Opinions/KBA_E-006.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

KENTUCKY BAR ASSOCIATION
Ethics Opinion KBA E-6
Issued: May 1962

Question:

May an attorney charge in excess of a state statutory fee?

Answer:

No.

References:

KRS 342.320
OPINION

The Workmen’s Compensation Board has requested an Opinion upon the question
of whether or not it is unethical for an attorney to charge claimants before the Workmen’s
Compensation Board fees in excess of the amount fixed by KRS 342.320.
It is the opinion of a majority of the Committee that since the statute fixes the
amount of the fee and deprives the Compensation Board of the right to deny or reduce the
fee except in the case of solicitation, that the attorney is bound by the statute; that it would
be not only unethical but unlawful to contract for a fee in excess of that fixed by the statute.

Note to Reader
This ethics opinion has been formally adopted by the Board of Governors of the
Kentucky Bar Association under the provisions of Kentucky Supreme Court Rule 3.530
(or its predecessor rule). The Rule provides that formal opinions are advisory only.