 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Wagner v. AGW Consultants5/24/2005
courts. See Walters v. Nat'l Ass'n of Radiation Survivors, 473 U.S. 305, 326 (1985) (holding that an attorney fee limitation, even if it resulted in discouraging attorneys from representing claimants altogether, did not violate due process in a veterans' administrative proceeding which Congress wanted to keep as simple and informal as possible).
{49} In my opinion, however, this analysis changes for appeals before our courts. Unlike the United States Constitution, our State Constitution guarantees the absolute right to an appeal. See N.M. Const. art. VI, ยง 2. Thus, once a worker 's case moves from the administrative setting to our courts, "the nature of the proceedings and the ability of the other side to secure representation" requires a more searching inquiry into whether representation is adequate. Maj. Op. 15. The cap prohibits workers, who have already received the statutory maximum for attorney fees, but are compelled to defend their benefit awards on appeal, from paying for necessary legal services, even out of their own pocket. Thus, the cap forces a class of workers into a position of intolerable risk. They must rely on the good graces of their attorneys to continue representing them in litigation without hope of additional compensation . If these attorneys withdraw, or even worse cut corners, because they cannot afford to continue the representation due to economic hardship, this vulnerable class of workers may lose the very benefits they won during administrative proceedings.
{50} The majority declines to address the impact of the attorney fee limitation on appeals because it contends there is simply not enough evidence in the record to indicate that Worker was deprived from exercising his right to appeal. The majority relies on United States Dep't of Labor v. Triplett, 494 U.S. 715, 723-24 (1990). In Triplett, the United States Supreme Court rejected a claim that an attorney fee restriction violated access to the courts, concluding the challengers only presented anecdotal evidence that the fee limitation deprived them of legal representation. Id. at 724. The Court ruled that the affidavits of three lawyers, which stated that there were fewer qualified lawyers available to take black lung cases, were "blatantly insufficient." Id. at 724-25. Similar to Triplett, the majority would require more evidence in the record that workers with complex or time-consuming cases are unable to obtain representation because of the fee limitation. See Maj. Op. 19.
{51} The majority seems to require an enormous evidentiary burden before it is willing to apply intermediate scrutiny -- either that a class of workers are completely unable to obtain representation or that an attorney actually withdraw from representation because of an unreasonable financial burden. I would be more charitable and recognize a class of workers exists whose right to appeal is burdened by the attorney fee cap.
{52} I believe the record and decisions of our courts have sufficiently indicated that the attorney fee limitation deters legal counsel from taking cases like this one. In Triplett, the Supreme Court applied a "heavy presumption of constitutionality" to an attorney fee regime enacted by Congress. 494 U.S. at 721. The Court thus required those challenging the law to make "an extraordinarily strong showing" that the fee limitation violated due process. Id. at 722. Unlike our case, Triplett did not involve the absolute right to an appeal guaranteed by our State Constitution. Because of that difference, the Supreme Court could apply the rational basis test. In contrast, considering the importance of the rights involved, I believe Worker presented enough evidence to challenge the attorney fee cap. Work
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 New Mexico Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|