New York: Attorney Fees Are Not to be Based Upon Amount of Recovery

A New York appellate court affirmed a Board decision reducing an attorney’s requested $18,000 fee to $8,000 in spite of the attorney’s contention that 15 percent of the amount awarded to an injured employee was the “customary” fee allowed. The court acknowledged that the employee had received benefits totaling some $117,000 and that $18,000 was approximately 15 percent of that amount. It indicated, however, that in New York, the Board was vested with broad discretion in setting fees. It acknowledged that the claimant had endorsed counsel’s request, but said that factor was not appropriate to the determination of the issues. The court noted that the claim had been established prior to the retaining of counsel. It also stressed that state regulations specifically prohibited an award of counsel fees based upon the amount of the recovery [see 12 NYCRR 300.17[f]].

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is co-author of Larson’s Workers’ Compensation Law (LexisNexis).

LexisNexis Online Subscribers: Citations below link to Lexis Advance.

See Matter of Oshier v. New York State Dept. of Corr. & Community Supervision, 2020 N.Y. App. Div. LEXIS 955 (Feb. 6, 2020)

See generally Larson’s Workers’ Compensation Law, § 133.03.

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law

For a more detailed discussion of the case, see

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