An attorney who represented social security claimants sued the social security administration, claiming that their regulation of attorney fees was invalid.

The administration regulated attorney fees based on seven factors, including: 1) the extent and type of services performed, 2) the complexity of the case, 3) the level of skill and competence required of the attorney doing the representation, 4) the amount of time spent on the case, 5) the results achieved, 6) the level of review to which the claim was taken and the level of review at which the representative began her representation, and 7) the amount the representative requests for a fee, including any amount authorized or requested before, but not including expenses incurred during the representation.

The attorney argued it was a violation of equal protection under the laws not to consider factors that were considered in a federal fee shifting statute for civil rights cases. Fee shifting refers to having the losing party pay some or all of the prevailing party’s legal fees. This can incentivize attorneys to take cases they otherwise might not consider taking, such as representing low income clients or those with limited means.

Specifically, the attorney argued that delays in getting paid on cases that take a long time and the fact that the attorney accepts a high level of risk in not getting paid on contingent fee cases should be taken into consideration.

However, the federal district court noted that high deference is given to agency actions and where, as here, no vulnerable class is involved (such as race, gender, religious affiliation, national origin, etc.), a law will be upheld so long as it is not arbitrary or capricious.

The attorney fee regulation was upheld.

See Social Security Ruling (SSR) 90-3c.