The statutory provisions which are here brought in question provide:
"In all cases coming before the industrial commission in which attorneys have been employed, the commission is vested with full power to regulate and fix the fees of such attorneys." R.S. Utah 1933, 42-1-81.
"Compensation before payment shall be exempt from all claims of creditors, and from attachment or execution, and shall be paid only to employees or their dependents." R.S. 1933, 42-1-74.
"The compensation of an attorney and counselor for his services is governed by agreement, express or implied, which is not restrained by law. From the commencement of an action, or the service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client's cause of action or counterclaim, which attaches to a verdict, report, decision or judgment in his client's favor and to the proceeds thereof in whosesoever hands they may come, and cannot be affected by any settlement between the parties before or after judgment." R.S. 1933, 6-0-40.
I concur in the views expressed in the prevailing opinion that the Industrial Commission has jurisdiction to fix the fees of an attorney who has been employed in a case coming before the commission and such jurisdiction extends to the *Page 458 fixing of fees for services rendered in this court. Plaintiff seeks to distinguish the cause while it is before the commission from the cause when it is brought before this court for review. It is true, upon review, that the plaintiff before the commission may become the defendant upon the review and vice versa, and that in this court the commission is usually made a party defendant, even though it was not a party in the initial proceeding. However, the cause in its final analysis is the same. The review made by this court is on the record made before the commission. To hold that the commission is without jurisdiction to fix fees for services rendered in this court would lead to endless confusion. An illustration will serve to make clear what is meant. The cause is brought to this court for review by an applicant who has been denied compensation. The applicant is successful in having the order denying an award vacated and the cause remanded to the commission. Upon a rehearing, an award is granted by the commission, and thereupon it becomes the duty of the commission to fix a fee for the attorney for the applicant. It is difficult to perceive how in such a case the commission may properly perform its duty of fixing the attorney's fee unless it may take into consideration the services rendered by the attorney in this court. In such case it would be idle to contend that the commission should seek an opinion from this court before it is authorized to act upon the matter of fixing the attorney's fee. There is no warrant in law or in reason for such a procedure.
I am also in accord with the holding of the prevailing opinion to the effect that, the statutes having vested the commission with full power in all cases to regulate and fix fees of attorneys employed by applicants, the courts may not limit the authority of the commission only to cases where a fee has not been agreed upon by the applicant and his attorney. Such a construction would do violence to the language used. If the Legislature intended to so limit the *Page 459 power of the commission, it would have been a simple matter to have so expressed its intention.
I, however, do not agree with the contention made on behalf of the commission to the effect that a proper construction of section 42-1-74, R.S. 1933, precludes the commission (in the absence of the consent of the employee or his dependents) from paying to the attorney the fee fixed by it. If such construction is given to that provision, it is difficult to perceive how an attorney is to be sure of anything in the event the employee or his dependents refuse to give consent to the payment thereof. To vest the commission with power to fix an attorney's fee, and at the same time deprive the commission and the attorney of the right to enforce the payment thereof, is contrary to all principles of natural justice and certainly flies in the face of those provisions of section 6-0-40, R.S. 1933, which give an attorney a lien on his client's cause of action. It is a matter of common knowledge that many employees and their dependents who receive awards of compensation own no property that can be reached by execution. The applicant in this case is apparently in that class. If an attorney is without right to insist upon payment of his fees out of the fund created by his labors, many employees and their dependents may well find it impossible to secure necessary aid to present their claims for compensation, no matter how meritorious such claims may be. The members of the commission may be ever so solicitous to protect the rights of an applicant. Still, if the applicant seeks a review in this court of an adverse decision, the aid of an attorney is imperative. The provisions of section 42-1-74, R.S. 1933, were intended as a shield to protect employees and their dependents and not as a sword to defraud attorneys out of their just fees. The authorities generally are to the effect that property acquired by a client as the result of litigation, although exempt when so acquired, is none the less held subject to a lien in favor of the attorney who conducted the litigation which enabled the client *Page 460 to acquire the property. 6 C.J. 781 et seq.; Hampton v.Hampton, 85 Utah 338, 39 P.2d 703. Viewed in the light of such doctrine, section 42-1-74 is not in conflict with that part of section 6-0-40 which provides for an attorney's lien. In such case, both provisions of our statutes must be given effect. If an attorney has a right to look for his compensation to the award which he has secured for his client, then and in such case the attorney is something more than a creditor. When the fee is fixed, the amount thereof becomes the property of the attorney. Payment to an attorney of that which is his does not offend against that provision of section 42-1-74, which requires that "compensation * * * shall be paid only to employees and their dependents."
I am thus of the opinion that Mr. Ellis had an attorney's lien upon the award made in favor of Mr. Spencer and that, when the amount of the fee was fixed, the commission had authority and it was its duty to pay the same to Mr. Ellis without the consent of Mr. Spencer. In this connection, it may be noted that, when funds upon which an attorney's lien is claimed come into the hands of the commission, good practice requires that the commission set a time and place for fixing the amount of the lien and that the persons interested be given notice thereof. Anything short of that is contrary to approved procedure.
I am unable to agree with my associates that we should not interfere with the order fixing the fee of Mr. Ellis at $300. That Mr. Spencer would not have received anything whatsoever except for the able and untiring efforts of Mr. Ellis is not open to doubt. Mr. Ellis received but $13 from Mr. Spencer towards paying the expenses of the litigation. In addition to the hearings had before the commission, the cause was brought before this court upon two occasions for review. The opinion evidence of reputable attorneys offered and received before the commission is by no means the only evidence presented to the commission. There was the contract in which Mr. Spencer agreed to pay to Mr. Ellis *Page 461 one-half of any award he might secure. No claim is made that Mr. Ellis overreached Mr. Spencer. On the contrary, the evidence tends to show that Mr. Ellis was reluctant to accept employment on the terms finally agreed upon. Notwithstanding Mr. Spencer was unable to pay all that was agreed upon towards taking care of the expenses of the litigation, Mr. Ellis faithfully and with outstanding thoroughness and ability carried out his part of the contract. The great amount of work required of Mr. Ellis is indisputably shown by the briefs filed in the cause in this court. The work was begun and carried on to successful termination in spite of the fact that Mr. Ellis knew his efforts would be unrewarded if he failed to secure compensation for his client. The award obtained, namely, $12.12 a week for at least a period of six years was very beneficial to Mr. Spencer. The evidence indisputably shows that the attorney fee allowed is grossly inadequate, even though due allowance be made for the fact that this is a workmen's compensation case. If the applicant had been unfairly dealt with in the matter of fixing the fee this court should and doubtless would remedy the injustice. The same consideration should be accorded the attorney.
While this court may not fix a fee, I can see no good reason why a minimum and a maximum fee to be allowed under a given state of facts may not be suggested by this court on the first review of a controversy with respect thereto. Otherwise the cause may be repeatedly brought to this court for a review of any subsequent fee that may be fixed by the commission. In my opinion, this record conclusively shows that Mr. Ellis is entitled to an attorney fee in the total amount of not less than $600 for the services rendered in securing workmen's compensation for Mr. Spencer. The commission still has funds under its control from which the remainder of such fee may be paid.
For these reasons, I dissent. *Page 462