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Rathmann v. Bulman

Court of Workers Compensation of Montana

October 20, 1995

JOHN H. RATHMANN Petitioner
v.
THOMAS C. BULMAN Attorney at Law Respondent.

          ORDER ON APPEAL

          Mike McCarter JUDGE

         Summary: 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.

         Held: Appeal denied where evidence indicates claimant was conversant with Rule 1.8 and aware of his right to consult independent counsel.

         Topics:

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 knew.

         This is 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.

         Factual Background

         Rathmann 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 trees.

         On June 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.

         Rathmann, 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 warrant.

         Following 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.

         On May 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 prejudice.

         Under 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."

         However, 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.

         Standard of Review

         The 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 prejudiced because:
(a) the administrative findings, inferences, conclusions, or decisions are:
(i) in violation of constitutional or statutory provisions;
. . . .
(v) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;

         The 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 ...


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