JOHN H. RATHMANN Petitioner
THOMAS C. BULMAN Attorney at Law Respondent.
ORDER ON APPEAL
Pro se claimant appealed Department of Labor and
Industry's Order denying his request to set aside
dismissal of claims against his former attorney.
Claimant's request was based on his allegation that the
settlement agreement between him and his former attorney
violated the Rules of Professional Conduct and unspecified
provisions of Montana law. When matters raised for the first
time on appeal are set aside, claimant's argument is that
he should have been advised that Section 1.8(h) of the Rules
of Professional Conduct disallow settlement of a claim
against an attorney by a client without prior advice in
writing that independent representation is adviseable.
Appeal denied where evidence indicates claimant was
conversant with Rule 1.8 and aware of his right to consult
Pro Se. Where claimant has chosen to represent himself and
has aggressively pursued his claim in the Department of Labor
and the Workers' Compensation Court, he cannot use his
pro se status as a shield and cannot claim error because his
former counsel failed to inform him of something he already
an appeal by John H. Rathmann (Rathmann) from the order of
the Department of Labor and Industry (Department) which
denied his request to set aside dismissal of his claims
against his former attorney, Mr. Thomas C. Bulman (Bulman).
The original order of Dismissal with Prejudice was entered by
a hearing examiner of the Department on May 19, 1995. The
order denying Rathmann's request that the dismissal be
set aside was entered on May 30, 1995. This appeal followed
and is timely.
was injured between April 4 and April 22, 1988, in the course
and scope of his employment with Anthony Welzenbach, d/b/a/
Mountain Management. He injured his back while planting
3, 1992, Rathmann retained Bulman, an attorney, to represent
him in his workers' compensation claim. An Attorney
Retainer Agreement was signed and filed with the Department
on June 4, 1992. Shortly thereafter, Bulman filed a petition
with the Workers' Compensation Court for an emergency
hearing on Rathmann's behalf. On February 16, 1993,
Bulman filed Claimant's Motion for Partial Summary
Judgment. Then, on March 8, 1993, Rathmann terminated
Bulman's representation. Bulman confirmed the termination
but notified Rathmann, the Department, and the insurers that
he claimed an attorney fee lien of $2066.62 based on a $10,
000.00 settlement offer made during his representation.
representing himself, eventually obtained a lump sum payment
from the State Compensation Insurance Fund, which was one of
the insurers involved in the case. The State Fund deducted an
attorney fee of $2066.62 and sent a warrant in that amount to
Bulman on July 14, 1994. Bulman signed the warrant over to
Rathmann on July 15, 1994, and forwarded it to him along with
a letter telling him to sign the "lien
release/settlement before the time limit expires." (Ex.
H to Brief in Support of Motion to Dismiss State Fund.)
Rathmann negotiated the warrant, retained the funds, but
apparently refused to sign the release. Thus, while he in
fact obtained the disputed funds, Bulman's claim for
attorney fees survived Rathmann's negotiation of the
mediation, on November 21, 1994, Rathmann requested a hearing
before the Department. He requested that Bulman's lien be
dissolved and that he be awarded damages for malpractice. The
State Fund was initially named as a respondent but was
subsequently dismissed from the action. Bulman remained a
respondent and a hearing was scheduled for May 18, 1995.
18, 1995, Rathman and Mr. Andrew F. Scott, representing
Bulman, held a telephonic hearing with hearing examiner
Stephen Wallace. At Wallace's urging, Rathman and Scott
agreed to discuss settlement and commenced negotiations. (Tr.
at 5.) They negotiated privately for approximately 30 minutes
and reached a settlement agreement which was then
memorialized in a document entitled Lien Release and
Settlement of All Claims, . . . Attorney Fee Waiver, . . .
[And] Complete Waiver of Claims. The agreement was signed by
both parties and filed with the hearing examiner, who then
entered an order dismissing Rathmann's claims with
the agreement, Bulman waived any claim for attorney fees. In
return, Rathmann released Bulman and his law firm from
"any and all claims of any nature whatsoever."
Rathmann changed his mind about the settlement and four days
later requested the hearing examiner to set aside his order
dismissing the petition with prejudice. Finding that Rathmann
had failed to show good cause to set aside the dismissal, the
hearing examiner denied the request.
Workers' Compensation Court's review of Department
decisions is governed by section 2-4-704(2), MCA (1993),
which provides in pertinent part:
(2) The court may not substitute its judgment for that of the
agency as to the weight of the evidence on questions of fact.
The court may affirm the decision of the agency or remand the
case for further proceedings. The court may reverse or modify
the decision if substantial rights of the appellant have been
(a) the administrative findings, inferences, conclusions, or
(i) in violation of constitutional or statutory provisions;
. . . .
(v) clearly erroneous in view of the reliable, probative, and
substantial evidence on the whole record;
hearing examiner's findings of fact must be overturned on
judicial review where they are "clearly erroneous in
view of the reliable, probative, and substantial evidence on
the whole record." State Compensation Mutual
Insurance Fund v. Lee Rost Logging,252 Mont. 97, 102,
827 P.2d 85, 88 (1992) (quoting section 2-4-704(2)(a)(v),
MCA). However, the Court will not reweigh the evidence; the
findings and conclusions of the fact finder will be upheld if
they are ...