No. 26922 (Repeal): R994-103. Approval of Counsel Fees

DAR File No.: 26922
Filed: 01/28/2004, 03:23
Received by: NL

 

RULE ANALYSIS

Purpose of the rule or reason for the change:

The unemployment rules are being rewritten to ensure that they comply with current law and practice.

 

Summary of the rule or change:

In order to keep all procedural rules together, the provisions of this rule have been moved to Rule R994-508. Rule R994-508 is a proposed rule that is being repealed and reenacted and that is being filed with this amendment. This rule is repealed in its entirety. (DAR NOTE: The proposed repeal and reenact of Rule R994-508 is under DAR No. 26929 in this issue.)

 

State statutory or constitutional authorization for this rule:

Section 34A-4-103

 

Anticipated cost or savings to:

the state budget:

There will be no costs or savings to the State budget because this is a federally-funded program and there are no substantive changes being made by these changes. These changes reflect current Department practices.

 

local governments:

In addition to the reasons stated in relation to the State budget, there will be no costs or savings to local government as this is a federally-funded, state-wide program that does not affect local government.

 

other persons:

There will be no costs to any person for the reasons stated in relation to the State budget.

 

Compliance costs for affected persons:

There will be no compliance costs to any person for the reasons stated in relation to the State budget.

 

Comments by the department head on the fiscal impact the rule may have on businesses:

This rule change will have no impact on business.

 

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Workforce Services
Workforce Information and Payment Services
140 E 300 S
SALT LAKE CITY UT 84111-2333

 

Direct questions regarding this rule to:

Suzan Pixton at the above address, by phone at 801-526-9645, by FAX at 801-526-9211, or by Internet E-mail at [e-mail]

 

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

03/19/2004

 

This rule may become effective on:

03/22/2004

 

Authorized by:

Raylene G. Ireland, Executive Director

 

 

RULE TEXT

R994. Workforce Services, Workforce Information and Payment Services.

[R994-103. Approval of Counsel Fees.

R994-103-301. General Definition.

The intent of Subsection 35A-4-103(3) is to protect the interests of the claimant who is dependent on his benefits as a means of livelihood during his period of unemployment. The Act does not address fees charged to employers by their representatives as employers are deemed to be more knowledgeable in the marketplace and generally not in need of such safeguards.

 

R994-103-302. Procedure.

If a fee is to be charged a written petition for approval of fee must be submitted by the claimant's representative to the Administrative Law Judge before whom the representative appeared, or to the Chief Administrative Law Judge if no hearing was scheduled. An approval form can be obtained through the appeals office. The fee may be approved as requested or a lesser amount may be approved depending upon the appropriateness and justification of the request.

 

R994-103-303. Criteria for Evaluation of Fee Petition.

(1) The appropriateness of the fee will be determined based on the following criteria:

(a) Complexity of Issues Involved.

A case involving several complex issues would obviously require greater preparation. However, services performed which add nothing to the presentation of the case are to be avoided. For example: A simple case having only one legal issue such as a voluntary quit would not normally require more than two hours of preparation time.

(b) Time actually spent in:

(i) preparation of the case;

(ii) attending the hearing;

(iii) preparation of a brief, if required (A brief should be submitted only when requested or approved by the Administrative Law Judge. If a brief is submitted which is not requested or necessary, the approved fee may be reduced by the charges for time spent on the brief.);

(iv) further appeal to the Workforce Appeals Board or the Supreme Court.

(c) Quality of service rendered including:.

(i) preparedness of the representative;

(ii) organization and presentation of the case;

(iii) avoidance of undue delays. Documents and witnesses should be made available at the time scheduled for the hearing and postponements should not be required except in unusual circumstances. Every effort should be made to go forward with the hearing when it is originally scheduled especially in benefit cases as claimants are frequently entirely without income during the course of the appeal processes if benefits have been denied or if benefits have been allowed, excessive overpayments may be created. In recognition of the due process right for payment when due, the Department of Labor has established a federal standard requiring that 60% of all appeals decisions be issued within 30 days of the date the appeal is filed. Therefore, unnecessary delays justify a reduction in the approved fee to the representative.

(iv) Necessity of Representation.

If it is clearly demonstrated that the claimant was not in need of representation because of the simplicity of the case or the lack of preparation on the part of the representative only a minimal fee may be approved.

(d) Prevailing Fee.

The prevailing fee is the rate charged by others for the same type of service. In determining the prevailing fee for the service rendered, credence will be given to information obtained from the Utah State Bar Association, Lawyer's Referral Service, or other similar organizations as well as determinations previously rendered by the Appeals Tribunal.

(e) Limitation on Amount of the Fee.

Fees will not be approved in excess of 25% of the claimant's maximum unemployment benefit entitlement unless such a limitation would preclude the claimant from pursuing an appeal to the Supreme Court or would preclude in some other way an opportunity for due process.

 

R994-103-304. Appeal Rights.

Should the representative disagree with the ruling of the Administrative Law Judge, a written appeal may be made to the Workforce Appeals Board within 30 days from the date of issuance of the decision. This appeal must set forth the grounds upon which the complaint is made.

 

KEY: unemployment compensation, counselors

1987

Notice of Continuation May 23, 2002

35A-4-103(3)]