LC 5710 Attorney Fees: A Sixty-Second Seminar in Workers’ Compensation Claims Handling

Pursuant to Labor Code Section 5710, an applicant attorney is allowed to charge an hourly fee when representing an applicant at their deposition in a workers’ compensation case.

Unfortunately, we do not have a fee schedule which provides guidance as to how much to an applicant attorney is to be paid for deposition services. In 2016, Labor Code 5710(b)(4) was enacted pursuant to Senate Bill 1160, calling for the Administrative Director (AD) to establish by July 1, 2018, guidelines addressing LC 5710 attorney fees; however, despite this legislative mandate the required guideline is yet to be developed. Consequently, disputes regularly arise as to such issue.

Previously, in December 2010, the presiding judge in Salinas, the Honorable Judge Thomas Clarke, published his own informal LC 5710 fee schedule allowing variable hourly rates depending on the number of years’ experience applicant’s counsel has in workers’ compensation. Judge Clarke’s publication is now over a dozen years old and it remains the only published guide available. Although now outdated, here is a listing of the fees Judge Clarke allowed 12-years ago.

•   $300 per hour for attorneys with up to 5-years’ experience in workers’ compensation law.

•   $350 per hour for attorneys with 5-9-years’ experience in workers’ compensation law.

•   $400 per hour for attorneys with 10+ years’ experience in workers’ compensation law or who are certified as specialists by the State Bar Board of Legal Specialization.

At this time, it should be noted that a lay person representing applicant at a deposition is not entitled to a LC 5710 fee unless they are working under the guidance and supervision of an active, licensed attorney (CCR 10445).

Recently, there has been a spike of litigation to collect old and forgotten LC 5710 fees in closed claims. Although a claim may have long since been resolved by C&R, workers’ compensation judges are allowing LC 5710 disputes to proceed forward, despite the underlying case having settled more than a dozen years ago.  So beware, as there is no statute of limitations for seeking a LC 5710 attorney’s fee.

Note that an exception exists if counsel’s license to practice law is inactive at the time of deposition. It is absolutely surprising how many attorneys are listed on the State Bar of California’s inactive list for failure to pay annual dues and other violations. To verify if an attorney is currently active or suspended, simply go on-line to the state bar’s attorney search portal and type in the attorney’s name. For a quick reference to the portal use the following link:  https://apps.calbar.ca.gov/attorney/LicenseeSearch/QuickSearch