Thatcher v. Industrial Commission , 115 Utah 568 ( 1949 )

I am directing my dissent to that part of the prevailing opinion which discusses the first contention of plaintiffs.

The controversial section of our code reads as follows:

"Section 42-1-81, U.C.A. 1943:

"In all cases coming before the industrial commission in which attorneys have been employed, the commission is vested with fullpower to regulate and fix the fees of such attorneys." (Italics added.)

This is an ill-considered bit of legislation that overlaps the powers of the judiciary. No doubt the legislature had in the back of its mind the thought that it would be of benefit to the applicant before the commission. What they failed to realize was that it is rather effective in driving attorneys away from that class of litigation. It might be classed as a mild form of legislation comparable to a certain enactment of the territorial legislature of this state. Chapter VIII, Laws of Utah 1852 was entitled: "An Act for the Regulation of Attorneys." Section 2 thereof reads:

"No person or persons employing counsel, in any of the courts of this Territory, shall be compelled by any process of law to pay the counsel so employed for any services rendered as counsel, before, or after, or during the process of trial in the case."

If this comparison appeals to the reader as an exaggeration, let us examine the matter for a moment.

The members of this court, all of whom were practitioners at one time or another, have no difficulty in appreciating the fact that a reasonable fee for handling cases before the commission should be measured in the light of the attorney's employment contracts and in the light of the fundamental purposes of our industrial accident laws. That is evidenced by the opinions filed in this case. Such an appreciation, however, is not something arising out of judicial experience only. It arises from an analysis of the purposes of the law. The practitioner knows it as well as the judge; and both know it far better than the layman, who is unfamiliar with professional services, inexperienced in legal analysis, and easily impressed with adverse thoughts about the legal profession. Section 42-1-81, however, places the responsibility of applying this measure upon the shoulders of the layman, the least qualified of the three to understand the application. This fact alone however, means nothing. A jury of laymen have a final determination of similar questions of fact in trials before the courts. Many administrative fact finding bodies have given to them the power to make final determinations of questions of fact. Such powers are not questioned if properly limited — in the jury case by instructions from the court; in legislation by standards or rules to govern their considerations. In the case of Revne v. TradeCommission, 113 Utah 155, 192 P.2d 563, 3 A.L.R. 169, certain standards were fixed and discussed as a foundation for determining the price of hair cuts. But has section 42-1-81 (quoted) any such limitations? No.

No standards, rules or instructions are given the commission to advise them as to the method of determining the area of reasonableness within which they may fix the fees. Except by implication, there is not even an indication that the fees are to be reasonable. The word "reasonable" is not used. Furthermore, the indifference as to the possible arbitrariness of the commission's rulings as to fees is evidenced in another way. No provision for appellant review of the commission's finding as to those fees is provided. This may seem a strange statement in view of the Ellis case, 91 Utah 432, 64 P.2d 363, cited in the prevailing opinion, and our acceptance of the present case. Our right to accept it is very questionable — so far as this statutory law is concerned. The only review contemplated by the Industrial Act is of the award; and "award" is defined, par. 7, Sec. 42-1-42, as the finding or decision of the commission as to the amount of compensation due any injured, or the dependents of any deceased employee. The award includes any of the appropriate items covered by such sections as 42-1-61, 62, 63, 64, 65, 66 and 75, in none of which is reference made to attorneys' fees. Such fees are not part of the award. The fact that the alleged purpose of Section 42-1-81 is to prevent the attorney taking too great a part of the award as fees, is a recognition that the amount of the award is not governed by the necessity of paying attorneys' fees. When laymen are handed "full power to regulate and fix the fees" — to control the purse strings — with no checks or balances, it is quite easy for their minds to assume that rather popular fear complex conceived in the belief that the legal profession is afflicted with predatory instincts, and needs watching. As a result, situations develop just as developed here: A fee fixed without notice, without evidence, without knowledge of professional services — arbitrarily.

In the Ellis case we said that it did not make any difference whether or not the attorney had appeared before the commission; that the commission's power included fixing fees for appearances solely before the Supreme Court. Is that true, regardless of the public interest in the administration of justice?

"The practice of law is so intimately connected and bound up with the exercise of judicial power in the administration of justice that the right to define and regulate its practice naturally and logically belongs to the judicial department of our state government."

In re Integration of Nebraska State Bar Ass'n, 133 Neb. 283,275 N.W. 265, 268, 114 A.L.R. 151.

The power to affect the functioning of the judicial branch of the government will lie with the legislature only so long as the courts surrender that power to them. Integration Bar Case,244 Wis. 8, 11 N.W.2d 604, 151 A.L.R. 586. As a matter of comity and in the interests of teamwork between branches of the government, there are times when an insistence upon a strict adherence to division lines between branches of the government will accomplish little, but when the legislation takes the form of driving counsel away from a particular class of litigants, it is time for the courts to guard their rights and insist upon adherence to those divisions — not to protect the attorneys, but to prevent the maladministration of justice.

It is human nature to shy away from the arbitrary control of others, and attorneys are no exception. Met with a law in which the layman is given such unbridled control of his fees, the attorney prefers to switch his attention to fields where arbitrariness is less apt to follow. Who suffers as a result? The applicant before the commission, as he (or she, as in this case) is handicapped in acquiring justice. He either must accept inferior service, or must fight his battle alone against astute well paid counsel of — in many instances — his corporate employer. In this case the applicant lost before the Commission without counsel. Counsel saved the situation for her, and she recovered.

The attorney is a necessary part of our judicial system.Ruckenbrod v. Mullins, 102 Utah 548, 133 P.2d 325, 144 A.L.R. 839; State v. Cannon, 206 Wis. 374, 240 N.W. 441. He is also a citizen and should bear his share of the burden of society — his share of the regulations of society. The really important line to be drawn is between the legislation which affects him merely as the citizen practicing a profession, and that which affects him in his capacity as a court officer. The latter is of public interest.

On July 30, 1886, 24 Stat. 107, 48 U.S.C.A. § 1471, Congress enacted a law providing that the legislatures of the territories of the United States shall not pass local or special laws regulating the practice in courts of justice. When our State Constitution was adopted in 1896, this provision became par. 6, Sec. 26, Art. VI, of that Constitution. This has been interpreted in Lyte v. District Court, 90 Utah 369, 61 P.2d 1259. Recently, Chapter 33, Laws of Utah 1943, our legislature recognized that our Supreme Court has the power to regulate the practice before the courts; and provided that when the court's rules of practice are made effective they shall supersede all legislation in conflict therewith. These enactments are clear recognitions of the power in the judiciary to govern the matters of practice in the administration of justice.

To discuss the section of our code, 42-1-81, in controversy on the basis of an exercise of police power regulating attorneys, is to draw attention away from the harm to the public in the administration of justice. The power to regulate the practice of professions can be conceded; but when legislation having the earmarks of such a purpose, in reality interferes with the administration of justice, then the courts must take a hand.

This legislation does affect the administration of justice — and does affect the practice before this court; and the power to govern the conduct or fees of attorneys as a matter of regulation is beside the point. There is not much difference between saying attorneys shall not be paid for their services (Chap. VIII, Laws of Utah 1852, quoted), and saying that in certain classes of cases they shall be paid only what a designated layman or group of laymen sees fit to grant them — the litigant loses the benefit of the expert presentation of his case to the court on review, and the preparation for review. It makes no difference that by judicial interpretation we may place the proper safeguards around Section 42-1-81. This brings the matter down to what is suggested in the prevailing opinion.

That opinion appears to recognize a deficiency in Section 42-1-81, although it upholds its provisions. This recognition appears in this way: The opinion quotes, as a guide for fixing fees, Rule 12 of the Revised Rules of the Utah State Bar with amendments. There is, however, nothing in the legislative enactment in question which indicates that the legislature thought the commission's determination should be upon a measure such as is outlined by the requirement of that rule. Nothing is said in the law about it.

The question before us is not one of whether or not the court has power to fix a schedule of attorneys' fees; nor is it one to regulate attorneys in their office practice. It is a question of whether or not the legislature should be permitted to enact a section of the code which interferes with the administration of justice. It is not a question merely personal to the attorneys, but one of great public importance — one as to whether or not we should take a backward step in the direction of the 1852 law, quoted, and interfere with the administration of justice by driving the attorney away from the kind of practice discussed herein. We can go back over the years if we want, step by step, but it might be advisable to think of those steps in the light of their effect on the administration of justice. The strength of our government lies in the maintenance of the strength and independence of its branches.

Section 42-1-81, U.C.A. 1943, should be declared unconstitutional and, in so far as this particular case is concerned, the fee agreed upon between attorney and client upheld.