Opinion
Rehearing Denied Aug. 24, 1971.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for Ind. Comm. of Colo.
Costello, Kofoed & O'Donnell, Eugene F. Costello, David L. Kofoed, Declan J. O'Donnell, Denver, for petitioners.
No appearance for respondents Abex Corp. and Liberty Mutual Ins. Co.
Page 1059
SILVERSTEIN, Chief Judge.
This is an appeal from a final order of the Industrial Commission awarding claimants' attorneys a fee of $750. The attorneys assert the commission acted arbitrarily in not approving a contingent fee contract and in not awarding a larger fee. We affirm the order of the commission.
There is no dispute in this case concerning the commission's power, under C.R.S. 1963, 81--13--11(1), and the commission's rules, to determine the amount of allowance for attorneys' fees. The sole issue is the reasonableness of the commission's action in refusing to approve a contingent fee contract and the reasonableness of the amount of the fee awarded.
Under the above cited section of the statute no contingent fee contract between a claimant under the Workmen's Compensation Act and his attorney is enforceable unless and until approved by the commission. Under the Act, attorneys' fees are allowed and payable only in accordance with the Act and only as approved by the commission. Warrenberg v. Cline, 108 Colo. 179, 114 P.2d 302.
Warrenberg, supra, holds that the attorney must be given an opportunity to be heard and states,
"Among the matters considered in the determination of the amount of the fee are the number of witnesses sworn, the length of time taken, and the nature of the case, whether it was a troublesome, complicated issue or a simple matter easily and quickly determined.' 71 C.J., P. 1403, s 1345.'
The attorneys in a letter to the commission, requested approval of their contract with the client which provided for a contingent fee of seventeen percent of the award obtained for the client. The fee claimed was $3,950. The referee advised the attorneys the contract was not reasonable on its face and requested additional information. The attorneys replied, stating they believed they had expended 'in the neighborhood of 105 to 117 hours on the matter,' but that they were not certain as to the exact time. No other facts were offered in support of the claim. The referee awarded $750.
On petition for review the referee made the following findings which were adopted and affirmed by the commission, and all of which are fully supported by the record:
'There was one hearing and one witness. The insurance carrier promptly admitted liability before the hearing. The only issue was dependency. Public documents established a widow with records of marriage, no divorce, and birth certificates for the children. This attorney, and the attorney for the assumed and subsequent common-law 'wife' of the deceased, are both capable and experienced attorneys. Fortified with legal documents which established a prima facie statutory presumed dependency the Referee finds that neither of these attorneys should have needed to spend much time in legal research or in prolonged and persuasive conversations outside of the hearing room before the hearing held herein.
The procedure before the Division of Labor is informal, as are the hearings. Considering that the claimant's attorney was awarded $150.00 for his appearance, and twenty hours at $30.00 an hour over and above the appearance, strikes the Referee as more than reasonable. The claimant's attorney listed his legal activities in his March 2, 1970 letter, wherein he requested $3,950.00 as 'reasonable.' He does not indicate a record of hours spent on this case and in his letter of March 17, 1970 indicates no record of time was in fact kept, but relies instead on a contingency fee contract and then estimates the hours of legal service to be 105 to 117 hours.'
The record clearly establishes that the commission was not arbitrary in not approving the fee contract and that the fee awarded was 'more than reasonable' for the services necessarily performed in this matter.
Order affirmed.
DWYER and PIERCE, JJ., concur.