May a Vermont lawyer take a contingent fee from past-due temporary total disability benefits in a workers' compensation case?

Short answer Opinion 91-17 permits a contingent fee limited to recovery of past-due temporary total disability payments, distinguishing ongoing weekly deductions criticized in a disciplinary board decision.
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VTBAR
Issued
1991

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This page answers the general question as of 1991. Ask about yours and see what the current Vermont Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page as a PDF) is the authoritative source for any reliance.
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Plain-English summary

A workers' compensation lawyer asked whether a contingent fee could be a percentage of temporary total disability payments recovered for a past period. The committee said former DR 2-106 recognized contingent fees as a permissible form of fee, and EC 2-20 treated administrative agency proceedings like other civil claims for this purpose.

The committee distinguished Professional Conduct Board Decision No. 3, which involved ongoing weekly deductions after work to secure the payments had ended, in addition to a share of a lump sum, and fees exceeding the value of the services. The proposed agreement here covered only a finite period of past-due benefits paid in one lump sum. The committee concluded that the former Code did not bar that arrangement on the described facts.

Currency note

This opinion was issued in 1991 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history states that the Rules of Professional Conduct applied to lawyer conduct after September 1, 1999. Later amendments or opinions may have changed the analysis. Treat this opinion as historical context and verify current rules before relying on it.

Common questions

Q: Did the opinion allow a fee from past-due temporary disability payments?

A: Yes. The committee said the former Code did not bar a contingent percentage of the finite past-due recovery described.

Q: Did the same reasoning approve continued deductions from weekly checks?

A: The committee distinguished a disciplinary board decision involving ongoing weekly deductions after services to secure the payments had concluded; it did not approve that arrangement.

Background and rules framework

The opinion discussed former DR 2-106, DR 2-106(B)(8), EC 2-20, and the disciplinary board's use of DR 1-102(A)(5). Its holding was confined to the past-due recovery presented by the inquiring lawyer.

Citations and references

Rules of Professional Conduct:

  • Vermont Code of Professional Responsibility DR 2-106, DR 2-106(B)(8), DR 1-102(A)(5), and EC 2-20

Other opinions cited:

  • Professional Conduct Board Decision No. 3 (October 12, 1990)

See also

Source

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