N.Y. Comp. Codes R. & Regs. tit. 12 § 460.6

Current through Register Vol. 46, No. 22, May 29, 2024

Section 460.6 - Attorney and registered representative fee procedure

(a)Requirement to apply for a fee.

(1) A fee for services to a claimant in connection with any claim under article 18 of the Labor Law shall be permitted only for a lawyer or non-lawyer representative who is registered with the appeal board.

(2) Each lawyer and registered non-lawyer representative who represents a claimant on a fee basis in connection with a claim under article 18 of the Labor Law shall complete a retainer agreement stating the terms of representation and the fee arrangement.

(3) When a lawyer or other representative represents a claimant in connection with any claim arising under article 18 of the Labor Law, the board or administrative law judge shall determine whether that person is appearing for the claimant on a fee basis and advise the claimant that any fee must be approved by the board and is payable by the claimant.

(4) Following the mailing of a final decision, the lawyer or registered non-lawyer representative who requests a fee for representation shall provide the claimant with an itemized bill which details the work performed on behalf of the claimant for which the lawyer or registered non-lawyer representative requests a fee. The itemized bill shall include:

(i) the actual time spent in preparing for and providing representation;

(ii) the number of hearings held in the matter;

(iii) the lawyer or registered non-lawyer representative's costs and expenses as described in paragraph (c)(2) of this section;

(iv) the hourly rate or method used to determine the amount of fee requested which must be consistent with the fee arrangement specified in the retainer agreement; and

(v) the total amount of fee requested.

(b)Applications for fee approvals.

Lawyers and registered non-lawyer representatives appearing on a fee basis must apply to the board for approval of such fees according to the procedures below.

(1) Each application for a fee approval shall consist of the following:

(i) a copy of the fully executed retainer agreement required by paragraph (a)(2) of this section;

(ii) a copy of the itemized bill required by paragraph (a)(4) of this section;

(iii) a statement identifying additional factors to be considered by the board in reviewing the application; and

(iv) a signed certification, on a form provided by the board, swearing to or affirming the accuracy of the itemized bill; that benefits were allowed in a final decision in connection with the representation; and that copies of the itemized bill, retainer agreement and any statement of additional factors have been given to the claimant.

(c)Factors to be considered by the board.

(1) Claims for services to a claimant by a lawyer or registered non-lawyer representative shall not be enforceable unless approved by the board and shall not exceed the total benefit allowed. In approving any such fee, the board shall consider the following factors:

(i) the total benefits allowed;

(ii) the time spent in providing representation;

(iii) the legal and factual complexities involved;

(iv) the extent to which the hourly rate or other basis for the fees billed is consistent with the terms of the retainer agreement;

(v) any other factors as the board may deem relevant.

(2) Standards for approving costs and expenses. The board shall approve costs and expenses as follows:

(i) reasonable travel time and costs;

(ii) actual costs of copy charges;

(iii) witness fees in accordance with section 2303 of the Civil Practice Law and Rules; and

(iv) other reasonable costs or expenses.

(d)Board action on applications.

The board shall accept for filing every application that complies with the requirements of subdivision (b) of this section. The application shall be reviewed for reasonableness of the requested amount considering the factors stated in subdivision (c) of this section. If the requested amount is denied, in whole or in part, the board shall notify the parties of the amounts denied, and the reasons for denial, and shall approve the balance requested.

(1) Applications for up to $600 in fees and expenses shall be expedited and may be decided by the executive secretary or someone assigned by the executive secretary on behalf of the board.

(2) Applications for more than $600 in fees and expenses shall be decided by individual board members on behalf of the board.

(3) Any fee awarded to a lawyer or registered non-lawyer representative shall not exceed the total benefit allowed.

(e)Prohibited payments.

No lawyer, registered non-lawyer representative or other person or firm shall ask for or receive any fees, expenses or other money from a claimant, directly or indirectly, for representation in connection with a claim under article 18 of the Labor Law unless and until an amount has been approved by the board under this section, except as follows:

(1) A lawyer may solicit and receive an amount up to $600 as a retainer to be immediately deposited in an Interest on Lawyers Account (IOLA). Such amount remains the property of the claimant until and unless the board has approved an amount as a fee; and

(2) A lawyer or registered non-lawyer representative may obtain a pre-approved credit card authorization for an amount up to $600 from a claimant but shall not process the authorization for payment until after the fee has been approved under the procedures described in this rule.

(f)Repayment.

If a lawyer, registered non-lawyer representative or other person or firm receives a payment for representation of a claimant in violation of these provisions, the claimant may apply to the board for an order of repayment stating the reasons for the request.

(1) The chair of the board shall then choose a member, or an administrative law judge, to hold a hearing, upon notice to all parties including the corporate surety (see section 460.5 of this Part), to consider the matter.

(2) If the hearing is held before an administrative law judge, the judge shall conduct the hearing and submit a report to the board, including a recommendation on the matter.

(3) After reviewing the report and recommendation, the board shall issue an order that will be the order of the board when signed by any member, mailed to all parties including the corporate surety and filed at the board.

(g)Reconsideration.

A lawyer, registered non-lawyer representative or claimant who is dissatisfied with the approved fee may file an application with the board for reconsideration of the fee. Such application must be made in writing within 15 days of the mailing of the notice of the fee approval with a proof of service of the application on the other party. As soon as feasible after receipt of the application for reconsideration, the board shall issue a decision stating the fee awarded and the reason(s) for the decision. In the board's discretion, a hearing may be held on the issue of reconsideration of the fee.

(h)Violations.

If the lawyer or registered non-lawyer representative violates this section or fails to repay as ordered, the board may cancel the privilege of the lawyer or registered non-lawyer representative from practicing before the board after notice and an opportunity to be heard under the procedures described in paragraphs (f)(1)-(3) of this section.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 460.6