I concur in the order and most of what is said in the opinion. But I do not concur in the implications involved with respect to Section 42-1-81, U.C.A. 1943. I must concede that the opinion properly reflects the interpretation of the section as made by this court in Ellis v. Ind. Comm., 91 Utah 432, 64 P.2d 363. We there held that under the section noted the Industrial Commission could fix the fee any attorney could collect for services rendered in connection with any cause which at any stage came before the commission, regardless of any contract made between the parties. To follow the rationale by which that view was reached would be a job for a "Philadelphia lawyer." It seems to me the Ellis case misconstrues, misinterprets and misapplies the section. As there construed, grave doubts arise as to its constitutionality. I think the plain purpose of the section was twofold: (a) To permit the commission to impose upon the employer or insurance carrier, in addition to the award made to the workman, an attorney's fee where it was necessary for the claimant to employ an attorney to establish his right to compensation, the same as the commission allows doctor fees and hospital and medical charges. (b) To fix the amount, if any, that an attorney may receive for his services out of the money paid to the workman as compensation. Payments under the compensation acts are in the nature of trust funds not subject to garnishment, execution or other liens except as may be allowed by the commission. This accords with the general rule that charges for services cannot be made against trust funds except as allowed by the court. The rule does not prevent a trustee from paying such charges from any other funds he may have not involved in the trust. *Page 451 That an attorney should not be permitted to make a contract for payment to him of any part of the award made to the claimant, other than such as may be allowed by the commission, is clear. He should not be permitted to make or enforce any contract by which charges are paid him or anyone else out of a trust fund unless such charge and payment are first authorized by the legal authority having control or administration of the trust. And if an attorney may not do so directly, to do so by resort to subterfuge and indirect means would not only be unlawful but would certainly be unprofessional conduct. Uberrima fides is an inherent factor in all professional actions of a lawyer. But I see no reason in a position that an attorney may not in good faith make and enforce a contract for compensation for his services as long as he does not collect the same from nor receive in satisfaction thereof, moneys paid to the workman as compensation under the act. As a comment aside, construing the section as was done in the Ellis case, when the commission fixes the total fees which claimant's attorney may receive from any and all sources for his services, it should also fix the total fee the attorneys for the employer and the insurance carrier may receive for their services in connection with the cause. To do otherwise is to put the workman at a disadvantage because he must often depend on an attorney who cannot afford to devote the time and effort necessary to find and present the material evidence while well paid attorneys for the employer and carrier often with big staffs can gather any and all salient facts and evidence and present such as they deem pertinent to the issues upon which they rely. If the commission seeks to fix fees for any counsel, it would seem they should fix for all to keep the parties on a par.
In the instant case the Bar Commission found, and the evidence sustains the finding, that Hatch knowingly sought and received payment for his services from money paid his client as compensation benefits, in excess of that allowed by the commission. This was unprofessional conduct.
TURNER, J., not participating. *Page 452