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Wagner v. AGW Consultants5/24/2005
her reached the fee limitation nor showed that he would have secured a higher attorney fee in the absence of the limitation, 2002-NMCA-089, 29, here Worker not only reached the limitation, but the WCJ found that his attorney reasonably expended over 200 hours at $175 an hour, bringing him well over the limitation of $12,500.
{10} We note that the fact Worker is represented by counsel, who continues to honor her ethical duty to represent him, does not preclude standing in this case. See Rule 16-116(B)(5) NMRA 2005 (declining or terminating representation). In Corn v. New Mexico Educators Fed. Credit Union, the Court of Appeals held the claimant had standing to challenge the constitutionality of the unilateral limitation on workers' attorney fees although claimant continued to be represented by counsel. 119 N.M. 199, 202, 889 P.2d 234, 237 (Ct. App. 1994), overruled on other grounds in Trujillo v. City of Albuquerque, 1998-NMSC-031, 32, 125 N.M. 721, 965 P.2d 305 (Trujillo III) (overruling Corn to the extent it adopted a fourth tier of scrutiny, while affirming Corn's holding and subsuming its "heightened rational basis" analysis under a "modern rational basis" standard). The WCJ in Corn found that but for the limitation, the claimant's attorney would have been entitled to nearly $20,000, and noted that although attorneys exceeded the limitation in only one of five hundred cases, the limitation caused workers to be at an unfair disadvantage compared to employers and significantly reduced the number of competent attorneys willing to take workers' compensation cases. Id. at 201, 208, 889 P.2d at 236, 243. Although the claimant in Corn was represented, the court found a significant risk of future injury because his attorney could withdraw during the appeals process if the lack of payment posed an unreasonable financial burden, which would have required claimant to "pursue matters of impairment and permanent disability without the aid of counsel." Id. at 202, 889 P.2d at 237.
{11} Thus, despite the fact that Worker is represented by counsel, he has shown that he is at risk of significant injury because of his inability to compensate a lawyer on appeal. Section 52-1-54 prohibits Worker from paying his counsel more than $12,500, either before the WCA or on appeal. See ยง 52-1-54(A), (I), (N) (making it unlawful to accept fees except as provided in the Act, punishable as a misdemeanor offense). The ethical rules allow Worker's lawyer to withdraw if the case poses an "unreasonable financial burden," and Worker would be unable to offer a new attorney any compensation on appeal. See id.; Rule 16-116(B)(5). This evidence certainly does not detract from Worker 's having standing; if anything, it strengthens his argument. We hold Worker has standing to challenge the constitutionality of the fee limitation.
II. Rational Basis is the Appropriate Level of Scrutiny
{12} Before turning to the merits of the equal protection and due process challenges, we must identify the appropriate level of scrutiny for reviewing the challenged law. What level of scrutiny we use depends on the nature and importance of the individual interests asserted and the classifications created by the statute. See Mieras, 1996-NMCA-095, 24. Ordinarily we defer to the Legislature's judgment in enacting social and economic legislation such as the WCA. See Corn, 119 N.M. at 204, 889 P.2d at 239. So long as such legislation does not impact important rights or protected classes, it is upheld unless the challenger can show the provision at issue is not rationally related to a legitimate government purpose. See Trujillo III, 1998-NMSC-031, 14, 26; Mieras, 1996-NMCA-095, 30. If legislation impacts important but not fu
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