Jack Goodchild featured in Workers’ Compensation Section E-News of March 2015 edition.
Our Second Client: What are our Obligations as an “Officer of the Court” in the Practice of Workers’ Compensation Law?
By Jack Goodchild, Esq., Applicant’s Attorney and with contributions from Judge Jerold Cohn, Workers’ Compensation Administrative Judge and Barry S. Pearlman, Esq., Defense Attorney
As a practitioner with 38 plus years of experience in the field of Worker’s Compensation in California, and after having attended my 40th law school reunion, I have found myself thinking quite a lot about the field in which I have spent my entire professional career and about what I perceive has happened to it and to the practitioners on both sides of the fence.
For many years I felt good about the generally accepted perception of the practice in this field, wherein practitioners see each other repeatedly throughout the year and throughout the years, that we did not practice with a “scorched earth” policy such as attorneys in civil practice before the civil courts (perhaps inappropriately named). There was a focus on accomplishing substance (the provision of fair benefits to a deserving applicant) over procedure.
Very unfortunately with the advent of a focus on procedure over substance, enactment of strict “gotcha rules” and statutes, and with the entry into the field of young attorneys eager to make their reputation as “hitters”, and who have no institutional memory, our practice seems to have become somewhat cut throat. In my opinion, this is not only counter-productive and unnecessary but is also at times a violation of our responsibilities as “Officers of the Court”. We must consider whether acting like we are in the “wild west” is an appropriate use of our licenses to practice law.
I also thought of the fact that our system is a benefit delivery system mandated by the California Constitution. What did this mean for the practitioners in our field of practice? To which additional responsibilities must we adhere?
While I do not claim to have all of the answers, I felt that it was clear that a full and continuing discussion of these considerations and issues would be good for our system and for those who make their livings participating in it. While we all serve different clients and face differing factors and considerations, it seems that we would all benefit from a full vetting of these issues in this and other forums. This is how we make our livings and we should strive to do so in a manner of which we can be fully proud.
For these reasons I came up with the idea for this article and for a webinar to be presented in March of this year by the Workers Compensation Section of the State Bar of California. Because I wanted this article to be fair and balanced I invited Judge Jerold Cohn and defense attorney Barry Pearlman, Esq. to each write a portion of this article and to participate in an upcoming webinar to present their points of view from the Bench and from the defense point of view. I am an applicants’ attorney, and both Mr. Pearlman and I are honored to be members of the State Bar Executive Committee on Worker’s Compensation. Judge Cohn is a longstanding valued and respected member of the Judiciary in our field of workers compensation. Together we hope to begin an ongoing discussion of these issues by members of our bar. We hope this will lead to some introspection and self- evaluation on the part of the practitioners in our field. The result, we hope, will be that some improvement occurs both in the perception by the public of our field of law and in the quality of practice therein.
Judge Jerold Cohn Submitted The Following Source Material for Questions Involving Legal Ethics:
DISCLAIMER: This article and the webinar which will follow are not to be deemed to represent the opinion or views of the State of California Department of Industrial Relations, Divison of Industrial Accidents, Workers’ Compensation Appeals Board or any of its workers’ compensation judges. Any person interested in this topic should engage in independent research and not rely solely on the comments made in this presentation. The persons presenting in this article/webinar are Jerold Cohn, a Worker’s Compensation Judge in Van Nuys, California, Jack Goodchild, Esq. of Encino, California (whose practice consists mainly of representing injured workers) and Barry S. Pearlman, Esq. of Encino, California (whose practice consists mainly of representing defendants in workers’ compensation cases).
At the outset it should be understood that all three (3) participants agree that all members of the Bar of the State of California and all persons practicing before the Workers’ Compensation Appeals Board (WCAB) should consider themselves “Officers of the Court” and should conduct themselves as ” Officers of the Court”.
Primary Rules
Thus, it is important to remember that an attorney’s first ethical duty is to his/her client. However, a lawyer has an obligation of candor toward the court (Rules of Professional Conduct (RPC) 3.3 and a lawyer has an obligation to be fair to her adversary (RPC 3.4).
Comparing, Contrasting and Applying the Rules
As a consequence, lawyers might feel that they are in an ethical dilemma when they are engaging in settlement negotiations and they suddenly come upon a medical report that might be damaging to their client’s cause. However, RPC 3.4 states that a “lawyer shall not unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document having potential evidentiary value, and shall not make a frivolous discovery requests or fail to make a reasonable diligent effort to comply with legally proper discovery requests.” RPC 3.3 states that “a lawyer shall not knowingly make a false statement of material fact or law to a tribunal, shall not fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a fraudulent act by the client, and shall not offer evidence that the lawyer knows to be false.”
Also because of these duties a lawyer should think twice before representing to the court that he/she is entitled to a 25% fee when a fee of 9 to 12% or even 15% is more lawful, customary and proper. In no event should a party’s attorney “hip-pocket” a medical report which has been appropriately demanded. Mr. Pearlman has or will speak to that scenario. At any rate, while one’s first duty is to his/her client, it is submitted, as will be discussed by Mr. Goodchild, that each and every attorney should remember that he/she has a duty as an “Officer of the Court.”
Hypothetical situation: When attorneys feel an obligation to themselves or their client such that they withhold information which is later gleaned by the court or opposing counsel to be substantial, do such attorneys thereby diminish their reputation with the court or opposing counsel or in representing other clients?
Admission to the State Bar
Business & Professions Code Sections 6060 et.seq. & Section 6068 set forth how to apply for admission to the State Bar, and how you thereafter submit your application to the Supreme Court of the State of California for admission. The B&P sections also contain language concerning a member’s duties.
Sources of Information
- The State Bar of California has codified the State Bar Act and has available persons who will talk on request to members that have questions.
- The American Bar Association has available Cannons of Professional Ethics as well as proposed Model Rules of Professional Conduct which is available free from Wikipedia (last modified 10/15/14).
- The Los Angeles County Bar Association also accepts inquires and has published several volumes of discussion on professional ethics. See Ethics Opinions of the Los Angeles County Bar Association.
- Ethics Opinions of the San Francisco bar Association.
- Cornell Law School has an article on the ABA Model Rules which can be found at http://www.law.cornell.edu/ethics/aba/2001/history.htm.
- California Evidence Code Section 912.
There are various sub-issues that need to be explored by the practitioner. What do you do when you want to be relieved as counsel? Does the client have the right to a new attorney? (These hypothetical and other issues will be address in our forthcoming webinar)
Other Sources
Law school classes are a tremendous source of information. Discussions with law professors and ethicists and colleagues are helpful. It is not uncommon for attorneys, before trial, to sit, converse and discuss issues of professional responsibility at any district office of the Workers’ Compensation Appeals Board. Joining such a discussion and posing a question can often result in a situation where one can ascertain the opinions of others.
The California Labor Code and the attached Title 8 of the California Code of Regulations (CCR) contain useful information. Many Workers’ Compensation Judges require compliance with the CCR such that anyone appearing has to have a declaration from the client that the attorney or hearing representative is authorized to appear on behalf of the client.
Workers’ Compensation Appeals Board Judges also have rules and duties of professional conduct. Some are found in the Labor Code, some are self-enforced and most are covered in the California Code of Judicial Ethics.
While the E-Newsletter format may not allow sufficient time and space to discuss all of the issues that may arise, it is incumbent on the practitioner to review the information and become familiar with the rules when practicing before the Workers’ Compensation Appeals Board.
What are The Obligations of Attorneys that Prosecute and Defend Workers’ Compensation Cases Beyond Representing their Clients
By Barry S. Pearlman, Esq.
It has probably been a long time for those reading this article to remember the oath that they took when they passed the bar exam and were admitted to the California State Bar. To bring you down memory lane it went something like this:
“I solemnly swear (or affirm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability.”
You will note that the oath does not specifically differentiate or change depending on what area of law you practice. In my 30 plus years of practice, I have constantly had to remind attorneys both in and outside my firm, on both sides of the bench, that we are not “Workers’ Compensation” attorneys, rather, we are members of the California State Bar and are governed by a myriad of laws, including Business and Professions Code Section 6068, entitled “Duties of Attorneys.”
Some of the duties of being an attorney are obvious. We are obligated to support the Constitution and the laws of the United States and of California. We are obligated to respond promptly to client inquiries, respond to disciplinary proceedings and to maintain client confidences, etc.
Some of those duties that appear to be less obvious to those who practice before the Workers’ Compensation Appeals Board, both from the applicant’s bar and the defense, include the obligation:
To maintain the respect due to the courts of justice and judicial officers (Section 6068(b));
To counsel or maintain those actions, proceedings or defenses, only as appear to him or her legal or just, except…;
…never to mislead a judge or judicial officer by an artifice or false statement of fact or law;
To advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.
We must fulfill our obligations as attorneys regardless of whether it might affect your relationship with your client or outcome of a case you are handling.
I am reminded about a conundrum I faced early in my legal career. I was a small firm with a large client. A medical report was issued that the claims examiner did not like. She called me and instructed me to throw the medical report away because the doctor was sending another report. For a brief moment, I was concerned that if I were not to follow her instructions, it could significantly impact my practice. Still, there was never a question about how to respond to her request.
Before I delve into specific concerns I have seen in my practice, I feel compelled to remind the reader of two things:
The California Workers’ Compensation system is mandated in the California Constitution and the system is considered a benefit delivery system;
Despite the fact the Workers’ Compensation system is an administrative system, any attorney practicing before the Workers’ Compensation Appeals Board must comply with those duties to which they are obligated as an attorney.
As attorneys practicing before the Workers’ Compensation Appeals Board, we generally have one client to represent. Yet our obligations as lawyers far exceed, and are sometimes in conflict with, that representation. We have the obligation “…to support the Constitution of the State of California,” including those involving Workers’ Compensation. We have an obligation to represent our clients, but in doing so we must maintain “…proceedings or defenses, only as appear to (be) legal or just…” In providing a defense we must vigorously do so, yet we can “…advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which he or she is charged.”
We are taught very early as to the obligations we owe our clients; obligations which are sacrosanct. It may sometimes seem difficult to fulfill those ethical obligations while practicing in a benefit delivery system.
What does it mean to work in a benefit delivery system? Workers’ compensation benefits are administered primarily by private insurance companies or self-insured employers who are authorized to transact workers’ compensation. The WCAB’s role is to oversee the process of providing benefits and help resolve disputes that may arise.
As defense attorneys how do we reconcile our responsibility in a benefit delivery system with our obligations to provide our clients the best defense available? I think in order to find the right answer we must remind ourselves it is not our job or responsibility to deny injured workers’ benefits. Contrary to what many of my learned opposing counsel profess, I do not believe that our clients sit around trying to figure out ways to deny injured workers’ benefits. Nor do I believe it is in the defense attorney’s obligation to do so. Rather, when an employee legitimately sustains injury that arises out of and occurs in the course of employment, the defense attorney must, in representing their client and in supporting the California Constitution, insure that the injured worker receives all those benefits that it is determined he or she is legally entitled to under the Workers’ Compensation Laws of the State of California.
We must vigorously defend our client’s interest if there is an effort by or on behalf of an injured employee to obtain benefits to which they are not legally entitled to. We do not have the luxury of being able to decide what may morally be correct (although sometimes, I feel the need to discuss with my clients what I believe is “the right thing to do” even though the law might not require it).
Now in another lifetime, I spent a few years as an Applicant attorney with a very reputable firm. These attorneys understood their ethical obligations in representing injured workers. They also understood their obligation as attorneys, not just Workers’ Compensation attorneys. I remember being told that as attorneys for injured workers, our obligation was to ensure that we obtain all benefits to which an injured worker was legally entitled to. In order to ensure a legitimately injured worker receives those benefit they are legally entitled to, we cannot seek benefits for those who have not actually been injured, nor can we seek benefits for legitimately injured workers beyond what they are legally entitled to.
Some reading this article may have asked the question of how I responded to the conundrum I faced early in my career. I responded to the request from my adjuster to destroy a produced medical report by advising her that I could not do so, that we would reconcile the initial report and the subsequently generated reports through valid legal reasoning and that the outcome, whatever the outcome would be, would be just. I am glad to say that I kept that client for over 20 years until they decided to go to an alternative fee arrangement.
The remainder of this article is by Applicants’ Attorney Jack Goodchild. Esq:
All attorneys have at least two clients. Attorneys obviously represent the client for whom they work or who has hired the attorney. However attorneys, it seems, tend to forget their “other client” which is of course the court system of which they are an officer by virtue of their license to practice law.
Being an “Officer of the Court” comes with an additional set of obligations and ethical limitations which go beyond those owed to an actual client. Being an officer of the court has been defined as being a person who has an obligation to promote justice and effective operation of the judicial system. This specifically applies to lawyers who have, as an officer of the court, an absolute ethical duty to tell judges the truth, including avoiding dishonesty or evasion about the reasons the attorney or his or her client is not appearing, the location of documents and other matters relating to the conduct of the courts. Attorneys as officers of the court also have a responsibility to fully and fairly represent the current state of the law to the court in briefs and argument.
Furthermore, as was pointed out to me by attorney John Steele, Esq.,a professional ethicist and professor of ethics (at Stanford and Berkley), with whom I spoke briefly regarding this article, attorneys as officers of the court also have a duty to society and even to the markets.
The California Attorney Guidelines of Civility and Professionalism provide:
“As Officers of the Court with responsibilities to the Administration of Justice, attorneys have an obligation to be professional with clients, other parties and counsel, the courts and the public. This obligation includes civility, personal dignity, candor, diligence, respect, courtesy, and cooperation, all of which are essential to the fair administration of justice and conflict resolution.”
As every lawyer learns when he or she gets out of law school a license to practice law is not a right but rather is a privilege. Earning a Juris Doctor degree from a law school does not guarantee admission to the Bar. That is subject to testing of intellectual ability, scholarship and certification of character, etc. It is a privilege, not to mention one’s reputation that can be lost in a single moment, should we fail to live up to the high professional standards which are required of us by virtue of our admission to the Bar.
Being a lawyer, requires a commitment to the fair administration of justice and to making true access to justice a daily fact of life in this state. Despite the fact that our charge as attorneys for our clients requires toughness, strength of spirit and diligence, this is not only required in dealing with the opposing counsel but also it means having the courage to refuse to act for a client when following the client’s instructions would require violation of the Rules of Professional Conduct.
In our field of workers’ compensation, I would argue that these obligations and limitations go beyond those in other areas of law. I believe that this is true because our system of Workers’ Compensation is in actuality a benefit delivery system which is itself constitutionally mandated by our state constitution. See Article XIV Section 4 which states in part:
“The Legislature is hereby expressly vested with plenary power, unlimited by any provision of this Constitution, to create and enforce a liability on the part of any or all persons to compensate any or all of their workers for injury or disability, and their dependents for death incurred or sustained by said workers in the course of their employment regardless of the fault of any party; also full provision for securing safety in places of employment; full provision for such medical, surgical hospital and other remedial treatment as is requisite to cure and relieve from the effects of such injury”……..”and full provision for vesting power , authority and jurisdiction in an administrative body with all the requisite governmental functions to determine any dispute or matter arising under such legislation, to the end that the administration of such legislation shall accomplish substantial justice in all cases expeditiously, inexpensively, and without encumbrance of any character; all of which matters are expressly declared to be the social public policy of this State, binding on all departments of state government.”…..
Clearly, therefore, this system is not merely another judicial system. It is a special system with a special charge to accomplish substantial justice in the compensation of injured workers and their dependents and to provide such medical and other treatment as is requisite to cure or relieve the effects of industrial injuries. Furthermore by the inclusion of this language in our state constitution it is inherently part of the public policy of this state.
I would argue that as our clients’ attorneys, on either side of the fence, we have an obligation, not only to look after our clients interests, but also to ensure that as the officers of the court that we are, that we do our part to ensure that the system works as it was intended to and that we deal in good faith and honesty with the WCAB and with each other. What this means is that we need to maintain a perspective and approach which both enables us to properly represent our clients but which also enables the system to function as it was intended to. As Mr. Pearlman correctly argues the parties on both sides of this system share a common obligation to see that all legitimate and due benefits are promptly paid and to see that benefits that are not legitimately due are not.
There are many situations in which this dialectic comes into play. One is in regards to panel QMEs. As we all know in today’s system an applicant cannot simply choose a QME but must petition for one from the medical unit and hope that the request will be granted. If it is not granted the applicant can try again or can seek an order from a workers’ compensation judge. It is a time consuming, labor intensive battle to just get out of the gate.
My experience has been that this issue is handled by defense attorneys in one of two manners. The approach I favor is when a defense attorney admits that we have a legitimate dispute and joins in the request for additional panels. The more typical approach is the following scenario: The defendant denies a PTP’s request for referral to doctors in other specialties. As a consequence an applicant with a potential additional disability in an additional area of medical specialty or who develops a potential compensable consequence injury is left with a need for a panel QME to resolve the issue of compensability. Often they have no alternative medical insurance available and have no other way of showing that the condition exists and that it is work related. Then the same defendant objects to a request for a panel QME or at the very least refuses to cooperate in a joint demand for a panel QME. How else is the applicant to provide evidence to resolve this issue? Who is to determine whether the referral is reasonable and whether the applicant has disability and need for treatment in the additional area of medical specialty?
This is often further aggravated by a “rush to judgment” wherein the defendant seeks a rush Mandatory Settlement Conference at which the record is locked as to further evidence despite the fact that the defendant is fully aware that the applicant is claiming additional injury and need for treatment and has requested additional QMEs. This typically happens after there has been an AME or QME who states in report of deposition that the applicant has or may have additional involvement of body parts or systems which fall outside of that examining doctor’s expertise and training.
I believe that this approach is patently unfair and that it constitutes a denial of due process. This approach prevents an applicant from getting the medical evidence needed to get a fair result which accomplishes substantial justice as the Constitution requires.
In our busy practices it is also sometimes unfair to allow records to be closed summarily based on a failure to object within five days to a declaration of readiness. Anyone handling incoming mail these days knows that it takes a few minutes to even determine what case a new document has come in on because of cover sheets and the like. It is almost impossible for a busy attorney to catch every DOR that comes in a timely manner. This can result in technicality focused judges closing the record before the applicant has had a reasonable time to gather the evidence needed.
Another area in which this awareness is sorely needed is in the authorization of medical treatment. Simply denying needed medical treatment because of a technicality or because a doctor has not fully explained the reason said treatment is reasonable and necessary is penny wise and pound foolish. It is important to remember that allowing conditions which need treatment to go untreated results in the development of more medical conditions and ultimately in a greater level of disability. Simply ignoring conditions in need of treatment does not make them go away.
At a time like this when UR and IMR are resulting in undue delay of needed treatment it is incumbent on all parties to work together to make the system work as well as it can at this point. We are at a crossroads in the history of our system and it may only be a matter of time until our citizens are marching in the streets to change the system once again because of the unjust denial of needed medical treatment .The reform that will then come may tilt our system too far in the other direction. It can reasonably be argued that appropriate and effective treatment provided on a timely basis saves the defendant money in the long run by preventing the onset of additional conditions and complications. Certainly effective pain control can improve sleep and prevent the worsening of some conditions.
I , therefore, maintain that it is up to us on both the applicant and defense side to work together to get reasonable treatment authorized and provided in a timely manner.
On the other hand full blown advocacy and litigation at every level of representation is not necessarily what is best for the applicant or the defendant in every instance. There are clearly times when taking a little less or paying a little more to get a file resolved is what is best for both parties. And we all know the specter of the overly litigious client on both sides of the fence. Applicants who want to litigate even when it is not what is best for them or warranted by the evidence, and employers who litigate liability on clearly compensable claims are examples of clients who we, as “Officers of the Court”, need to attempt to control and to counsel to the best of our abilities both for their own sakes and for the benefit of the system.
Perhaps we should be asking ourselves how it is that we have come to this point. I have practiced in this field for thirty-eight years and I have never seen this system in such turmoil. It has come so far from the original goals and mandate for which it was formed. We are, it seems, at a point where statistics have become more important than the needs and suffering of real people. While the bureaucrats are seemingly happy, many doctors are leaving the system and our injured workers are being forced to suffer or seek treatment through group insurance and other systems. In many cases it is our tax dollars that are paying for treatment that should be provided through workers compensation. This is not acceptable.
The existing system is what we have to work with at the present time. It must be made to work for the needs of the real citizens of this state. Therefore, we the attorneys of this state, who are also “Officers of the Court”, should all contemplate our roles in this system and should consider how we should be conducting ourselves to ensure that we are serving both of our “client” i.e. our actual client and the judicial system within which we function on a daily basis.
In conclusion it is the hope of the authors of this article, and of the webinar set later this month, to begin a dialogue which will lead to the betterment of the practice in this field of law and, the improvement of the perception of this area of law and the practitioners in it, and the improvement of the delivery of services and benefits to applicants who deserve them. While we expect disagreements and differences of opinion as to what this means in our individual practices we believe that the airing of this discussion will hopefully lead to an improvement in our field of practice and in the perception thereof. We look forward to airing these issues at our forthcoming webinar and invite you to attend and participate in this needed discussion.
By Jack Goodchild, Judge Jerold Cohn and Barry S. Pearlman © Copyright 2015 LexisNexis. All rights reserved.
