Protecting Confidential Billing Info–A Road Less Traveled

By Judge Thomas Wyatt, Chattanooga

Judge Thomas Wyatt

In the past six and a half years, you’d think our twelve judges in seven locations would’ve addressed every conceivable procedural issue. NOT SO! To the contrary, we’re constantly amazed at how many new issues arise out of the clear blue sky. In fact, a week does not go by without a judge asking how his or her colleagues would handle a procedural issue. Often, the issue proves to be one of first impression.

The truth is that lawmakers and rule-writers can’t possibly foretell all the unique situations that parties bring to court. Thus, procedural rules are more like a road map than driving directions. In the same manner that a map doesn’t tell you the condition of the road, how traffic is moving, and whether the next exit has a place to get gas, the Court’s procedural rules don’t cover every logistical detail on how to present something in a hearing. However, travelers often resort to services like Mapquest to obtain more detailed information about an upcoming trip than a road map might reveal.

Our judges recently considered a “Mapquest” inquiry about the procedure invoked when the court undertakes its statutory duty to approve fees of employer’s attorneys.

Tennessee Code Annotated section 50-6-226(a)(1) provides, in part, “All attorney’s fees for attorneys representing employers shall be subject to review for reasonableness of the fee and shall be subject to approval by a workers’ compensation judge when the fee exceeds ten thousand dollars[.]”

The issue we recently addressed involved the concerns of some employer’s attorneys that information they consider to be proprietary—their fee contracts with clients, hourly rates, and billing records—will be made a part of the public record. The challenge for the judge in this instance was the tension between the legitimate concerns of attorneys and the needs of the Court in receiving the necessary evidence to meet its statutory duty in the fee-approval context.

It’s axiomatic that one seeking relief from a court must present that request for relief in writing. A case is initiated by filing “a petition for benefit determination . . . on a form provided by the administrator[.]” Tenn. Code Ann. § 50-6-203(b)(1). The Bureau’s rules provide that a party may request both dispositive and non-dispositive relief by motion filed “in accordance with the Tennessee Rules of Civil Procedure.” Tenn. Comp. R. and Regs. 0800-02-21-.18(1), (2). Naturally, the Bureau’s rules also provide that “[c]opies of all documents filed with the bureau or court must be served on all parties or their attorneys, if represented.” Tenn. Comp. R. and Regs. 0800-02-21-.08.

So, clearly, an employer’s attorney seeking to comply with the requirement of judicial approval of an attorney’s fee that exceeds $10,000 must file the request for approval with the clerk. There being no exceptions to the rule requiring service of filings on other parties, the attorney seeking approval of a fee must serve a copy of the request for approval on the other parties to the case.

Of course, a judge needs certain information to properly consider the factors relevant to the approval inquiry. The factors generally governing the reasonableness of attorney’s fees are found in Supreme Court Rule 8, Rule of Professional Conduct 1.5. Typically, an attorney seeking approval of a fee before our Court accompanies the request for approval with an affidavit tailored to provide the information pertinent to the factors in the Supreme Court rule.

In view of the Supreme Court rule, the accompanying affidavit should address the written fee contract with the client, the hourly rate charged by the attorney, and the number of hours invested on behalf of the client in defending the case. At times, the approval process might require the judge to review the billing records of the attorney. This, of course, can’t be done without the attorney filing the necessary evidence with the clerk of the court, where it becomes public record. Further, neither the Tennessee Rules of Civil Procedure nor the Bureau’s rules exempt an attorney seeking approval of a fee from serving all parties with the filing used to bring the issue before the Court.

So, what can be done to address the legitimate concerns of employer’s counsel? File a motion for a protective order seeking permission to submit the sensitive information under seal.

Protective motions are often filed in discovery disputes. See Tenn. R. Civ. P. 26.03. This type of motion gives the employer’s attorney the opportunity to bring concerns to the judge’s attention. It also provides the other parties an opportunity to convince the Court that they need access to the information sought to be submitted under seal.

The judges of the Court of Workers’ Compensation Claims wish to be responsive to the needs of the parties and counsel practicing before us. Even if our rules don’t always provide “driving directions” to the place a party wants to be, if we’re aware of the issue and it’s properly brought before us, we’re happy to address parties’ concerns in view of the applicable law and procedural rules.

Photo by Judge Deana Seymour, Memphis.

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