Sunday, June 11, 2017

Notice and Opportunity to be Heard

A recent Missouri WorkCompCentral story attracted my attention, Court Reverses Order Directing Payment of Attorney Fees Into Attorney's Trust. It reminded me of the classics of due process in American jurisprudence, notice and the opportunity to be heard. It also reminded me that in some instances, there is no time like the present. 

Due process is a comprehension challenge for many people. It is one of those legal catch-phrases that are often bantered on the television, but unfortunately too often not really understood. I have had many a conversation with lawyers that made me wonder whether they missed that day in Constitutional Law class. 

Due process can be perplexing. When I teach Constitutional Law, I find that students are persistently eager to quantify things. They want to know "how much" due process. Or, as I rephrase that question "when evaluating due process, how much process is due?" A fair question. But unfortunately (or not), it is a question not capable of a very definitive "quantifying" answer. The best answer, as much as many hate it, is "enough." There should always be enough due process. 

When confronted with that answer, the student almost always objects. This answer for them is to vague, indefinite, and unfulfilling. We all seem to like concrete answers (at least when we are doing the asking). But, "enough" is the correct answer. If we are accused of some petty infraction, we might find ourselves deprived of the right to engage in discovery before trial. Some would argue that is a denial of discovery denies due process, but the courts weigh the right to due process against the potential for harm. In a petty infraction, we may legally receive less process than if we were accused of a capital offense. 

Back to Missouri. In this case, an injured worker sought benefits for permanent total disability in 1996. The trial judge ordered Missouri's "Second Injury Fund," or "SIF," to pay those benefits and imposed a lien against the benefits to pay the attorney that had represented the worker in the litigation. 

The attorney was over sixty years old at the time. Twenty years later, now over eighty years old, the attorney filed with the Commission and asked that the SIF pay those ongoing fee deductions to the attorney's living trust if the attorney happened to pass before the injured worker. Age has a way of intruding on our thoughts sometimes.

The Commission responded with the first crucial element of due process, notice. When there is to be an action that might affect the rights of parties to litigation, it is imperative that the parties have notice of that fact and of any hearings or proceedings that might affect the outcome. The Missouri Commission sent notice to "all the interested parties and requested a response within 30 days if anyone objected."

No objections were filed, and so "the commission issued the requested order." The injured worker thereafter objected to the order "roughly two weeks later." She explained that she did not receive either the notice or the order, until after the order was entered.

The injured worker's objection to the order was denied. The Commission's denial order explained that the first order did not decide whether fees would be due following death; the order merely said that if fees were due pursuant to the 1996 order, then those fees would be paid to the living trust. 

The injured worker appealed, and the attorney "died at the age of 87 while her appeal was pending." (Remember that "no time like the present" thought?) The Court reversed the Commission, because of the allegation of no notice being received. That does not mean that someone saying they did not receive notice will be the end of an analysis. The Court explained that the Commission should have listened to the injured worker's objection, and determined whether her allegations of no notice were true. 

Just saying you did not receive notice is not alone sufficient, that statement has to be believed by the tribunal. The tribunal cannot skip the step of determining credibility and deciding whether such an allegation is true. Therefore, in many instances such as this, a hearing may be required so that the judge or commission can view testimony first-hand and decide to believe or disbelieve the objection/allegation of no notice. 

Because the Missouri Commission failed to do so, the appellate court concluded that the order directing payment to the living trust should be reversed. This outcome leaves uncertainty for the parties, one of whom is now dead and dependent upon someone else to prosecute his claims. 

It is likely that the SIF paid fees to the living trust, following the attorney's death but before the appeal was decided. Will that money be refunded to the SIF for payment to the injured worker or to hold until further proceedings are held to determine entitlement to fees? 

Is the living trust or the estate entitled to fees from the ongoing permanent total disability benefit payments from the SIF despite the death of the attorney? It seems that would have been a good question to have posed and gotten answered back in 1996. (Remember that "no time like the present" thought?) Of course, we all doubt our mortality and when you are only sixty-something you likely feel you have many days left. Life expectancies have just improved so much in recent decades, and frankly no one likely wants to think of their own death. But, death is unavoidable, and you just never know. 

As Florida enters an era in which such fee arrangements might become more prevalent, see Miles v. City of Edgewater, 190 So.3d 171 (Fla. 1st DCA 2016), there might be similar issues. Attorneys may wish to trend toward addressing issues such as attorney demise, estate rights, etc. in drafting such agreements. 

It is possible that the attorney's estate might now litigate further regarding this attorney fee entitlement. It is possible, when an attorney passes, that there might be any number of similar ongoing obligations that could require attention. Regardless of context, attorneys and others should consider how liabilities and promises might be implicated by passing. To the extent those are considered and memorialized before passing, the burden on survivors and the estate might be minimized. 

But, the real point is that notice is critical to due process. How much process is due after that may be subject to debate, may be weighed against benefits/burdens, and may not live up to our subjective anticipations ("enough" to you may not seem "enough" to another). Despite perceptions of "enough," the notice is a must. Notice must be sent. When someone says notice was not received, there must be an inquiry. If an objection based on failure of notice is to be denied, there must be explanation of reason(s). 



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