Could counsel charge a contingent fee on current temporary total disability benefits?

Plain-English summary

A workers’ compensation lawyer asked whether a contingent fee could be calculated on current temporary total disability benefits rather than only past-due benefits. The committee assumed benefit checks went directly to the claimant and payments to counsel were voluntary.

Applying DR 2-106's prohibition on illegal or clearly excessive fees, the committee said contingent calculation on current or overdue benefits was not itself prohibited if the fee was reasonable. It distinguished a Professional Conduct Board decision involving checks sent to counsel and ongoing fee deductions from each check. The committee read that decision as rejecting the deduction arrangement on its particular facts, rather than every percentage-based calculation.

The opinion recognized that regular deductions could burden a worker because temporary benefits replace subsistence wages. It said billing or collection would normally be deferred until the case concluded, absent special circumstances.

Currency note

This opinion was issued in 1994 under Vermont's former Code of Professional Responsibility. The Vermont Supreme Court's rules history says the Rules of Professional Conduct replaced the Code and applied to lawyer conduct after September 1, 1999; the court later made comprehensive amendments in 2009. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement.

Common questions

Q: Was a fee based on current benefits automatically prohibited?

A: No. The committee permitted such a calculation if the fee was reasonable and not excessive in the circumstances.

Q: Did the opinion approve taking a fee from each weekly check?

A: No. It distinguished the Board’s criticism of an ongoing deduction arrangement and said collection would normally wait until the case ended.

Q: What facts did the committee assume about payments?

A: It assumed benefit checks went directly to the claimant and that the claimant paid the lawyer voluntarily.

Background and rules framework

The opinion applied DR 2-106(A) and (B), discussed the listed reasonableness factors, and distinguished Professional Conduct Board Decision No. 3.

Citations and references

Vermont Code of Professional Responsibility:

• DR 2-106(A)–(B).

Statute and decision cited:

• 21 V.S.A. §678(a)–(b); Professional Conduct Board Decision No. 3.

See also

• Vermont Ethics Op. 85-03: Revisiting a settlement fee waiver

Source

• Landing page: VBA topic page
• Original PDF: Vermont Advisory Opinion 94-04
• Rules history: Vermont Rules of Professional Conduct, “These rules apply to lawyer conduct after September 1, 1999.”