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Bustell v. AIG Claims Service11/14/2003
ment shall specifically set forth the fee arrangement, such as the amount charged per hour.
(7) For good cause shown, the division may approve a variance providing for fees in excess of the guidelines of fees as set forth in subsections (3) and (4).
(a) To obtain approval of a variance, an attorney has the burden of providing clear and convincing evidence of entitlement to a greater fee by documenting the following factors in regard to the specific claimant and the specific case:
(i) The anticipated time and labor required to perform the legal service properly.
(ii) The novelty and difficulty of legal issues involved in the matter.
(iii) The fees customarily charged for similar legal services.
(iv) The possible total recovery if successful.
(v) The time limitations imposed by the client or circumstances of the case.
(vi) The nature and length of the attorney-client relationship.
(vii) The experience, skill and reputation of the attorney.
(viii) The ability of the client to pay for the legal services rendered.
(ix) The risk of no recovery.
(x) The market value of the lawyer's services at the time and place involved.
(b) If a variance requested under (7) (a) is not approved, an attorney may request that the administrator or his designee review the matter and issue his order of determination pursuant to procedures set forth in ARM.
[Emphasis added.]
Toennis argues that the $75 an hour limitation does not apply because the rule was expressly promulgated under section 39-71-613, MCA, not section 39-71-614, MCA. He further argues that if the $75 limit applies he is deprived of due process because the rule does not provide him notice of the limitation. That argument is in turn based on the fact that the rule was expressly promulgated under section 39-71-613, MCA, and Toennis' claim that he lacked notice of the applicability of the limit under section 39-71-614, MCA. I am unpersuaded by the arguments.
Section 39-71-614(2), MCA, expressly provides that the attorney fees awarded by the Court are subject to an hourly "maximum established by the department." While the authority cited by the Department as authorizing it to establish such maximum was section 39-71-613, MCA, its authority under that section is broad. Section 39-71-613(2), MCA, provides in relevant part, "(2) The department may regulate the amount of the attorney fees in any workers' compensation case." Thus, section 39-71-614(2), MCA, merely confirms what is already provided in section 39-71-613(2), MCA, to wit: the Department, not the Court, has the authority to regulate attorney fees in workers' compensation cases. Thus, the Department's exercise of its authority under section 39-71-613, MCA, was sufficient for purposes of section 39-71-614(2), MCA, and provided Toennis with adequate notice under the latter section. Since there was adequate notice, Toennis' due process argument fails for lack of a predicate, the predicate being a lack of notice.
As set forth in subsection (4), the maximum allowable hourly fee under the rule is $75 an hour, however, ARM 24.29.3802(7) expressly allows the Department to deviate from that amount under unusual circumstances. Since the Court, rather than the Department, must, subject to the rule, fix the fee in a litigated case, ยง 39-71-614(2),(2) by implication the Court must have the same authority to apply the exception. I must therefore determine whether the criteria established by ARM 24.29.3802(7) justifies deviation from the $75 rate in this case.
Toennis must prove by
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