Brand v. Department of Labor & Industries

Talmadge, J.

(concurring) — While I concur in the result reached by the majority, I would adopt instead the well-reasoned opinion of the Court of Appeals, Division Two, on the award of reasonable attorney fees under RCW 51.52-.130.6

RCW 51.52.130 implicates the term of art “reasonable attorney fee.”7 We have indicated in numerous cases that *676we will employ the lodestar method to calculate an award of reasonable attorney fees; the lodestar method of calculating “reasonable attorney fees” is the default principle for fee calculation in Washington. See, e.g., Mahler v. Szucs, 135 Wn.2d 398, 957 P.2d 632, 966 P.2d 305 (1998); Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 859 P.2d 1210 (1993); see, generally, Philip A. Talmadge, Attorney Pees in Washington: Annotated Statutes, Cases and Commentary at 293-97 (Charles P. Siner ed., rev. ed. 1995).

The policy benefits of employing the lodestar method, as discussed by the Court of Appeals, are apparent. This method, when coupled with trial court findings of fact and conclusions of law in fee decisions, is a way of ensuring the trial courts “show their work.” A court arrives at a lodestar award by multiplying a reasonable hourly rate for the prevailing party by the number of hours reasonably expended in the litigation. See Scott Fetzer, 122 Wn.2d at 149-50. After the lodestar has been calculated, the court can adjust the figure, as necessary, to reflect factors not already taken into account in computing the lodestar. See Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 593-94, 598, 675 P.2d 193 (1983). Moreover, since the trial court must limit the lodestar to hours reasonably expended, it excludes hours spent on “unsuccessful claims, duplicated effort, or otherwise unproductive time.” Bowers, 100 Wn.2d at 597. However, this method also permits a party to recover fees incurred for unsuccessful claims if the issues are so intertwined — both the successful and the unsuccessful— that they cannot be easily parsed. Similarly, a party may seek a multiplier under the lodestar methodology if unusual work is accomplished or if counsel has taken on a case to the exclusion of other work in the office. See RPC 1.5(a); see Allard v. First Interstate Bank, 112 Wn.2d 145, 149, 768 P.2d 998, 773 P.2d 420 (1989).

By contrast, in failing to adopt a particular method of calculating fees, the majority offers no discernible means of *677determining how a reasonable fee is present in a particular industrial insurance case. We are in the business of establishing rules in our case law to govern human behavior and to guide the operation of our court system. In the absence of a clear rule by which a trial court can calculate an award of a reasonable fee, and by which we can review it, we do a disservice to the public, the trial courts and the Bar of the State of Washington.

In the present case, the trial court failed to establish an adequate record upon which to review its fee award; in addition, it did not enter findings of fact and conclusions of law. Thus, we do not know which particular factors, if any, the trial court considered in support of its reduced fee award. Additionally, we cannot determine if the trial court thought the attorneys’ requested hourly rates were reasonable. Neither do we know if the hours incurred by both sets of attorneys for the claim in this case were necessary to the outcome achieved, nor do we know the reason the trial court declined to award Brand’s counsel a multiplier.

In sum, the majority is correct in determining the trial court’s decision on attorney fees should be reversed. Nonetheless, I would adopt the clear and well-reasoned approach of the Court of Appeals for the calculation of reasonable attorney fees.8

*678Guy, C.J., and Alexander, J., concur with Talmadge, J.

Reconsideration granted and opinion modified April 10, 2000.

RCW 51.52.130 states, in pertinent part: “If, on appeal to the superior or appellate court from the decision and order of the board, said decision and order is reversed or modified . . ., a reasonable fee for the services of the worker’s or beneficiary’s attorney shall be fixed by the court.” (Emphasis added.)

RCW 51.52.130 is a fee shifting provision, which allows recovery of fees only in court. See Flanigan v. Department of Labor & Indus., 123 Wn.2d 418, 421, 869 P.2d 14 (1994). Thus, a successful claimant may not recover attorney fees before the Department of Labor & Industries (Department) or the Board of Industrial Insurance Appeals (Board), where the overwhelming majority of claims for industrial insurance are resolved. Contrary to the argument advanced by claimant Brand, RCW 51.52.130 is not merely designed to guarantee counsel to injured workers. Rather, as part of the Industrial Insurance Act, the overall purpose of RCW 51.52.130 is to encourage the finality of matters decided at the Department and Board level in favor of the injured worker by providing for a shifting of costs in favor of the injured worker at the trial court level. See Tallerday v. Delong, 68 Wn. App. 351, 356, 842 P.2d 1023 (1993) (goal of Industrial Insurance Act is to provide “sure and certain” relief, not to award full tort damages). If the statute were designed to generally guarantee counsel to injured workers, the statutory scheme would provide counsel at the Department and Board level where the vast majority of industrial insurance matters are actually resolved.

See Fhilip A. Talmadge, The Award of Attorneys’ Fees in Civil Litigation in *676Washington, 16 Gonz. L. Rev. 57, 77 (1980) (Appendix listing statutes providing for award of reasonable attorney fees).

The majority has decided to award Brand her attorney fees on appeal pursuant to RCW 51.52.130. However, the majority’s decision is premature. Attorney fees under the statute are available in a limited set of circumstances:

If, on appeal to the superior or appellate court from the decision and order of the board, said decision and order is reversed or modified and additional relief is granted to a worker or beneficiary, or in cases where a party other than the worker or beneficiary is the appealing party and the worker’s or beneficiary’s right to relief is sustained, a reasonable fee for the services of the worker’s or beneficiary’s attorney shall be fixed by the court.

RCW 51.52.130. In this case, we reversed the trial court’s award of attorney fees and remanded the matter to the trial court for recalculation of Brand’s attorney fee award. We cannot know if any additional relief will be granted to Brand, or even if her right to relief will be sustained, until the trial court has acted on remand. Any decision concerning attorney fees on appeal should await the trial court’s decision. See RAP 18.1(i).