Does a Pennsylvania workers' comp lawyer have to ask for Section 440 counsel fees?

Plain-English summary

The opinion notes at the outset that "in matters under the Workers' Compensation Act, attorneys are permitted to collect fees for representing injured workers only when the fee arrangement has been approved by a Workers' Compensation Judge or the Workers' Compensation Appeal Board." It frames the inquiry under Rule 1.2, which requires a lawyer to abide by the client's decisions concerning the objectives of the representation while retaining authority over means and tactics that do not involve substantive rights.

The opinion explains that, following the Pennsylvania Supreme Court's decision in Lorino v. WCAB, "attorney's fees are now awarded at the discretion of the WCJ when there is a reasonable basis for contest," and that the request for such fees is customarily made during litigation rather than at the outset. It concludes that "fees that may be awarded under Section 440 implicate a client's substantive rights," which makes the potential award a relevant consideration of which the client should be aware, along with the tactical reasons for and against requesting them.

Because the decision involves substance rather than mere means, the opinion concludes the lawyer must both inform the client of the need to make the decision and abide by it, the way Rule 1.2 most often addresses settlement offers. It connects this to Rule 1.4 (communication and consultation so the client can make informed decisions) and Rule 2.1 (independent professional judgment and candid advice). As the opinion sums up, "an attorney must discuss the issue with a client and must abide by the client's decision whether to seek the fees," adding that, while not required, "it is also best practice to confirm such discussions in writing."

In practice

Under this opinion, a Pennsylvania workers' compensation lawyer is not obligated to request Section 440 fees in every matter, but must raise the question with the client at the relevant point in the litigation and follow the client's decision. The opinion holds that the decision implicates the client's substantive rights under Rule 1.2 rather than being a tactical choice for the lawyer alone, and that Rules 1.4 and 2.1 require the lawyer to consult and give candid advice so the client can decide.

Common questions

Q: Do I have to request Section 440 counsel fees in every workers' comp case?

A: No. The opinion concludes the attorney is not required to request the fees in all cases.

Q: Can I just decide on my own not to seek the fees?

A: No. The opinion concludes the decision implicates the client's substantive rights, so the lawyer must discuss it with the client and abide by the client's decision.

Q: Why is this the client's decision rather than a litigation tactic?

A: The opinion concludes that "fees that may be awarded under Section 440 implicate a client's substantive rights," which under Rule 1.2 makes it the client's decision rather than a matter of means for the lawyer alone.

Q: Should I document the discussion?

A: The opinion states that while not required, "it is also best practice to confirm such discussions in writing."

Background and rules framework

The opinion interprets Pennsylvania Rule of Professional Conduct 1.2 (scope of representation; abiding by the client's decisions on objectives), Rule 1.4 (communication), and Rule 2.1 (independent advice), in light of Section 440 of the Pennsylvania Workers' Compensation Act and the Supreme Court's decision in Lorino. These rules track ABA Model Rules 1.2, 1.4, and 2.1.

Citations and references

Rules of Professional Conduct:

• Pa.R.P.C. 1.2, including Comment [1]; ABA Model Rule 1.2
• Pa.R.P.C. 1.4; ABA Model Rule 1.4
• Pa.R.P.C. 2.1; ABA Model Rule 2.1

Statutes and cases:

• Section 440 of the Pennsylvania Workers' Compensation Act
• Lorino v. WCAB (Commonwealth), 266 A.3d 487 (Pa. 2021), Section 440 fee discretion

See also

• PA Bar Ethics Op. 2025-100: Written Fee Arrangements Under Rule 1.5

Source

• Landing page: PBA Ethics Opinions (Public)
• Original PDF: F2022-100.pdf