LexisNexis recently published an article entitled “California: Rules for Hearing Representatives,” which gave a brief synopsis of 8 Cal. Code Reg. § 10773 and 8 Cal. Code Reg. § 10774.5. The article’s central thesis is that California attorneys may be sanctioned for not properly supervising a hearing representative, and four cases are cited as examples. In reviewing the case law, it appears that the article’s focus is misplaced on the technical rule violations rather than the flagrant unethical behavior of the hearing representatives and attorneys involved.
In the case of Williams vs. Underground Construction, 2014 Cal. Wrk. Comp. P.D. LEXIS 586, a hearing representative appeared before the settlement judge at an MSC on behalf of the applicant and represented herself to be a licensed attorney. She materially misled the court, and her actions amount to the unauthorized practice of law, a California misdemeanor. At trial, the applicant and his attorney failed to appear and no explanation was given for the non-appearance. Following this, the hearing representative acknowledged she was a hearing representative and not an attorney. She admitted she had no authorization for her appearance in place of the attorney and no evidence that the applicant agreed that she could appear as a hearing representative in place of the attorney.
Likewise, the unethical behavior of the hearing representative and the supervising attorney in this next case perturbed the WCAB and instigated the resulting sanctions. In Velasquez vs. American Building Maintenance, 2013 Cal. Wrk. Comp. P.D. LEXIS 184, the WCAB was concerned about the actions of applicant’s attorney, surrounding the presentation of a proposed Compromise and Release Agreement to the WCJ by applicant’s attorney’s non-attorney employee without informing defendant that applicant would be filing an additional claim. The material contradictions in applicant’s counsel’s own verifications led the court to conclude that he must have advised his non-attorney employee to withhold information about the pending CT claim. According to the court, applicant’s counsel demonstrated a lack of ethical conduct and an utter disregard for the DWC’s rules and regulations. In his petition challenging the WCJ’s Order, applicant’s counsel submitted an exhibit which he stated was applicant’s authorization letter. However, in the authorization, applicant’s name was simply scribbled at the top of a form document. The letter was not directed to the applicant, nor was the applicant identified as the recipient in any way. The timing of production of this document was suspicious and there was no confidence in the reliability of the document given that it was an undated, boilerplate form offered seven months after the WCJ’s Order. The sanctions were warranted based on applicant’s counsel’s conduct in the sanction proceedings and the complete disregard of his affirmative ethical duties.
The next case was essentially a challenge to the adequacy of the legal representation of the applicant’s attorney by the applicant. In Garcia vs. Lakeside Villas Home Owners Assn, 2014 Cal. Wrk. Comp. P.D. LEXIS 95, the applicant sought reconsideration of an Order Approving Compromise and Release issued by a WCJ, wherein the WCJ approved the parties’ agreement to settle applicant’s claim for $30,000.00. The application indicated the applicant was represented by a “law firm/attorney,” naming the law firm and the attorney. The WCJ’s report reflects that applicant’s non-attorney representative appeared with the walk-through C&R. It was not clear that the C&R itself was signed by applicant’s attorney because the signature was illegible and because there was no State Bar number listed. Applicant contended that he had shown good cause to set aside the OACR because his prior counsel failed to file a Notice of Representation by Non-Attorney and since applicant had requested, but was not awarded in the C&R, a stipulation keeping further medical treatment open so he could return to work. The WCAB did not invalidate or disapprove the C&R itself, but rescinded the OACR and returned the matter to the trial level to determine adherence to Rule 10773(b).
Lastly, the article highlighted one case which specifically applies to hearing representatives of lien claimants. The case was not about attorney supervision as much as requiring a proper NOR. In Lopez vs. The Edward Thomas Companies, 2015 Cal. Wrk. Comp. P.D. LEXIS 357, lien claimant failed to appear at a lien conference. A non-attorney representative for a lien collection company attended and purported to represent her. The non-attorney representative presented an undated Notice of Representation that was neither filed nor served. The document did not include the full legal name, mailing address and telephone number of the representative or the name of the company. This non-attorney representative did not advise the Court of the status for the lien collection company as a partnership, corporation or other organization. He did not advise the Court that he was a corporate officer, partner or fiduciary supporting his status to sign the Notice of Representation. Significantly, the Minutes of Hearing of the preceding lien conference six months prior indicated that lien claimant had been represented by another individual with no mention of the lien collection agency. There was no Notice of Change of Representation. These are remarkable defects which prevented the WCJ from ascertaining the non-attorney representative’s legal authority and reasonably led a fact finder to believe that this person was not authorized to act on behalf of the absentee lien claimant. Finally, the Petition for Reconsideration was signed and ‘verified’ by another individual, a non-attorney hearing representative who was not an individual with personal knowledge of the facts alleged because she did not attend the lien conference.
The common denominator in all of these cases is the gross ethical violations committed by the legal representatives. Practitioners should carefully read and comply with all new and existing workers’ compensation laws and regulations. Hearing representatives should always be supervised by an attorney, but also, what kind of legal representation are you hiring? The LexisNexis article fails to point out the important facts that distinguish these cases from any other procedural violation. It is the misrepresenations, material ommisions, and failure to provide adequate represenation, rather than the failure to file a procedurally proper NOR, which resulted in sanctions in these cases. Hence, lien claimants must be wary in selecting legal representation and focus on ethics and professionalism. Look for representation such as Boehm & Associates, with a proven success record and reputation for honesty and veracity as well as rigorous advocacy.