Can a lawyer charge a workers' compensation client for case expenses like travel and deposition costs separately from the statutory 25% cap on attorney's fees?

Plain-English summary

A lawyer representing a claimant before the Mississippi Workers' Compensation Commission asked whether he could charge the client for expenses (long-distance calls, travel, deposition costs) separate from the attorney's fee, which Miss. Code Ann. section 71-3-63 caps at 25% of the total award.

The opinion first noted that the Committee does not render opinions on questions of law, so it did not decide whether the statute itself prohibits charging expenses separately from the capped fee; it assumed for the sake of argument that the charge is not prohibited by law. The opinion quoted the statute's limiting language, including that "in no instance shall the amount recovered by an attorney for an appearance before the commission exceed twenty-five per centum (25%) of the total award of compensation."

On that assumption, the opinion concludes the attorney may, and indeed must, charge the client for expenses incurred in the representation. It grounds the conclusion in Rule 1.8(j), which bars a lawyer from acquiring a proprietary interest in the cause of action except for a lien to secure fees or expenses and a reasonable contingent fee, and Rule 1.8(e), which permits a lawyer to advance court costs and litigation expenses with repayment that may be contingent on the outcome. The opinion concludes the expenses may be charged over and above the section 71-3-63 fee limit, and adds that the attorney should make sure the client understands this at the start of the representation.

In practice

Under this opinion, the 25% statutory cap in section 71-3-63 governs the attorney's fee, not case expenses; assuming the statute does not bar it, a lawyer may charge a workers' compensation client for litigation expenses separate from that capped fee, consistent with Rule 1.8(j) and Rule 1.8(e). The opinion also states the client should understand the expense arrangement at the outset. The opinion expressly does not decide the underlying legal question of whether section 71-3-63 permits the separate expense charge.

Common questions

Q: Does the 25% workers' comp fee cap include case expenses?

A: The opinion treats the section 71-3-63 cap as a limit on the attorney's fee and concludes expenses may be charged separately, assuming the statute does not prohibit it.

Q: Can a lawyer advance litigation costs in a workers' comp case?

A: Per the opinion's reliance on Rule 1.8(e), a lawyer may advance court costs and litigation expenses, with repayment that may be contingent on the outcome.

Q: Does the opinion decide whether the statute actually allows charging expenses on top of the fee?

A: No. The opinion states the Committee does not opine on questions of law and assumes, for argument's sake, that the charge is not prohibited by section 71-3-63.

Q: Should the expense arrangement be explained to the client?

A: The opinion states the attorney should ensure the client clearly understands this at the beginning of the representation.

Background and rules framework

The opinion applies Mississippi Rule of Professional Conduct 1.8 (specific conflict-of-interest rules, the analog of Model Rule 1.8), specifically Rule 1.8(j) (no proprietary interest in the litigation except a fee/expense lien or a reasonable contingent fee) and Rule 1.8(e) (advancing court costs and litigation expenses). It reads these against Miss. Code Ann. section 71-3-63, the workers' compensation statute capping attorney's fees at 25% of the award, while declining to interpret the statute itself.

Citations and references

Rules of Professional Conduct:

• Model Rule 1.8 / Mississippi Rule 1.8: specific conflict rules, including Rule 1.8(j) (proprietary interest, fee/expense lien, reasonable contingent fee) and Rule 1.8(e) (advancing court costs and litigation expenses).

Statutes:

• Miss. Code Ann. section 71-3-63 (1972): caps an attorney's fee for an appearance before the Workers' Compensation Commission at 25% of the total award.

See also

• MS Bar Ethics Op. 225: Fixed-Fee Bid Absorbing Litigation Expenses
• MS Bar Ethics Op. 196: Duty to Correct Excessive Statutory Attorney Fees
• MS Bar Ethics Op. 135: Paying Legal Fees by Credit Card

Source

• Landing page: https://www.msbar.org/ethics-discipline/ethics-opinions/formal-opinions/107/
• Original PDF: https://www.msbar.org/media/1022/et_op_107-amended.pdf

Original opinion text

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

ETHICS OPINION NO. 107

OF THE MISSISSIPPI BAR

RENDERED September 13, 1985

AMENDED April 06, 2013

FEES AND EXPENSES - Assuming that Miss. Code Ann. §71-3-63 (1972), does not prohibit such charges, an attorney may ethically charge his workers' compensation claimant-client for expenses incurred in the representation separate and apart from §71-3-63's limitation on legal fees not exceeding 25% of the total award.

The Ethics Committee of The Mississippi Bar has been asked for its opinion on the following question:

May an attorney who represents a claimant before the Mississippi Workers' Compensation Commission ethically charge his client for expenses (e.g., long distance telephone calls, travel expenses, and deposition costs) incurred in the representation separate and apart from any attorney's fee to which the attorney is entitled under the terms of his employment contract as approved by the Commission subject to the maximum amount of 25 % of the total award of compensation set by Miss. Code Ann. 71-3-63 (1972)?

Prior to responding to this opinion, the Committee notes that it may not render opinions on questions of law. Therefore, this opinion does not address the legal question raised by this request: does Miss. Code Ann. 71-3-63 (1972), prohibit the attorney's charging of, and/or the Commission's approval of, expenses separate and apart from the fee for legal services authorized by section 71-3-63. The applicable language in question is:

In no instance shall the amount recovered by an attorney for an appearance before the commission exceed twenty-five per centum (25% ) of the total award of compensation. Such limitations, however, shall not be construed as applying to a fee awarded for additional services by a superior court. Legal services rendered where no motion to controvert has been filed by either employer or employee shall be considered as consultation, and that factor shall be taken into consideration in awarding a fee. In all instances, fees shall be awarded on the basis of fairness to both attorney and client. Although exceptions may be made in the interest of justice, it shall be deemed conducive to approve contracts for attorney fees voluntarily entered into between attorney and client, within the limitations hereinabove set out.

In regarding this opinion, the Committee assumes for the sake of argument only that the proposed charge for expenses is construed not to be prohibited by law.

With this understanding, the Committee concludes that the attorney ethically may, and indeed must, charge his client for the expenses incurred in the representation. The controlling ethical command is stated by Rule 1.8(j) of the Mississippi Rules of Professional Conduct (MRPC) which states in full:

A lawyer shall not acquire a proprietary interest in the cause of action or subject matter of litigation the lawyer is conducting for a client, except that the lawyer may:

(1) acquire a lien granted by law to secure the lawyer's fee or expenses; and

(2) contract with a client for a reasonable contingent fee in a civil case.

Rule 1.8(e), MRPC, further provides:

A lawyer shall not provide financial assistance to a client in connection with pending or contemplated litigation, or administrative proceedings, except that:

(1) A lawyer may advance court costs and expenses of litigation, including but not limited to reasonable medical expenses necessary to the preparation of the litigation for hearing or trial, the repayment of which may be contingent on the outcome of the matter . . .

Therefore, subject to the previously noted limitations of this opinion the attorney may ethically charge his workers' compensation claimant-client for expenses incurred in the representation over and above the limitations contained in §71-3-63 on legal fees. Of course, the attorney should ensure that the client clearly understands this at the beginning of the representation.