Formal Opinion 179
(1984)
Fees in Industrial Insurance Appeal Cases

An inquiry has been received as to whether lawyers may enter into fee agreements with clients for representation on appeals to the Board of Industrial Insurance Appeals without advising clients of their statutory right to petition the Board for setting of the fee.

Nothing in the statute or in the Code of Professional Responsibility prohibits a lawyer from charging a fee in excess of what might be set by the Board, provided that the fee is not clearly excessive. However, there is a fiduciary relationship between an attorney and client with respect to matters involving the setting of the attorney’s fee. Cf Perez v. Pappas, 98 Wn.2d 835, 659 P.2d 475 (1983). To avoid any potential for misleading the client, prior to entering into such a fee agreement with a client, the lawyer must disclose (preferably in writing) that the client has a right to petition the Board to set the fee and that there is a maximum fee which the Board may set according to regulation. The lawyer should also advise the client that if the Board sets the fee, the lawyer or client has a right to a review of that amount by the superior court.

The lawyer may accept or decline such proffered employment.