By Maria Antonieta Sager, Workers’ Compensation Section Chair
As promised last month in my January eNews article this month I will highlight the Practice and Ethics Subcommittee of the Executive Committee of the Workers’ Compensation Section of the California Lawyers Association (CLA). This could not have come at a better time in light of the newly updated California Rules of Professional Conduct, three of which I will discuss below.
The Practice and Ethics subcommittee is Chaired by John Parente and Co-Chaired by Zachary Frost. The goal of this subcommittee is to concentrate on improving levels of professionalism and competence for all practicing before the Workers’ Compensation Appeals Board through education and guidelines. Below please find John and Zachary’s overview of what the Practice and Ethics Subcommittee plans on doing for us this year:
“The Practice and Ethics Subcommittee is dedicated to the improved practice of Workers’ Compensation law. While we are particularly interested in improving the courteous civil conduct of all appearing before the Workers’ Compensation Appeals Board, we are also interested in encouraging an improved recognition of the fact that despite the fact that this is an informal forum it is a legal proceeding, and all involved should strive to achieve that goal.
We plan on enlisting the assistance of the subcommittee as well as other members of the Executive Committee to host informal gatherings at various Boards to discuss a proper and ethical means to conduct discovery including depositions of both doctors and applicants. We would like to also encourage the proper use of subpoenas. Too often records are ordered without a simple telephone call to either the adjuster or defense attorney to obtain the required documents. On that same vein, we think the defense has to do a better job of informing their clients to be responsive to requests for information from applicant’s attorneys. We think that we can do this through organizations such as the Self Insurers Association, the California Workers’ Compensation Institute, and other employer groups. Finally, we intend on obtaining additional articles for the Quarterly that directly affect Practice and Ethics.”
Thank you John, Zachary, and your subcommittee in advance for all you will do this year to help make all of us more ethical practitioners.
Before I discuss three California Rules of the Professional Conduct, I want to remind all again that as of January 1, 2018 the CLA was established meaning that 100,000 lawyers separated from the State Bar of California as a 501(c)(6) non-profit entity. Why is this separation significant to us lawyers as it relates to an eNews article discussing ethics? Because I believe that although it has always been important for us to practice ethically, it is important now more than ever as this separation occurred so the State Bar of California could better protect the public by focusing on admitting and disciplining lawyers. I cannot help from wonder if this new change is the reason why for the first time in 20 years the State Bar of California is requesting I get fingerprinted.
The first California Rules of Professional Conduct Rule I will discuss is Rule 1.3 (a)(b) stating “A lawyer shall not intentionally…fail to act with reasonable diligence…” Pursuant to this rule, reasonable diligence means a lawyer will act with commitment and dedication to the interests of the client.
I constantly remind my clients temporary disability is called temporary disability because in most cases it will be paid for a temporary period of time and not for the rest of their lives. I do this to help my clients not become reliant on a benefit intended to provide assistance for a limited period of time. I am a firm believer 99% of the time it is in the best interest of my client to return to work after an injury. This is even more true if my client only has a high school diploma and is part of a union, with good benefits, and a secure future. I believe it is my ethical obligation to do all I can to help my clients achieve this goal.
In addition, pursuant to Labor Code Section 1171.5 … “(a) All protections, rights, and remedies available under state law, except any reinstatement remedy prohibited by federal law, are available to all individuals regardless of immigration status…”
Over the years I have represented many Spanish-speaking injured workers as I speak Spanish. During these initial meetings a large number of them disclose they are undocumented. Whenever I hear these words I reach for my labor code and explain they too are entitled to workers’ compensation benefits. Each time I have this conversation, the tension in the room instantly disappears. It is one of the best parts of my job, empowering my clients through education. Although it is my responsibility to explain to my undocumented clients they have the right to workers’ compensation benefits, it is also my ethical obligation to explain the risks involved in filing a claim such as getting fired or deported. I would rather lose a potential new client who is undocumented because I fully disclosed the cons of initiating a workers’ compensation claim than fail to do so and run the risk of them initiating a claim and then get fired, evicted from their home, divorced, and deported. At the end of the day I have to sleep at night knowing I did all I could to ethically advise an extremely vulnerable human being sitting in my office trusting me with everything they have.
Commitment and dedication to the interests of the client to me means always putting my client first.
Second, pursuant to California Rules of Professional Conduct Rule 1.4(a)(3) “A lawyer shall keep the client reasonably informed about significant developments…”
I believe it is my ethical obligation to keep my clients informed throughout their case about everything. I really enjoy this part of my job. I tell my clients at their initial meeting, I and not my assistant, will be in contact with them once every 2 or 3 months, and sometimes more depending on what is happening with their case to give them updates. Experience has taught me however, to have this conversation with my clients at the beginning of the representation to avoid them worrying when I leave them a message out of fear I am calling them because there is an emergency with their case. I have had clients call me 5 times the day after I left them a message as they were convinced I was calling to give them horrible news about their case rather than me simply calling to give them an update on their case.
Doing the above helps me be in compliance with this rule requiring me to keep my clients reasonably informed about significant developments.
Third, pursuant to California Rules of Professional Conduct Rule 1.4(a)(2), “A lawyer shall reasonably consult with the client about the means by which to accomplish the client’s objectives…”
During my regular calls to my clients I am constantly asking questions about their case to help me better achieve their objectives. I spend quite a bit of time discussing with my clients my best case involves three parts like a triangle. The first part of my triangle is my client is guided by a lawyer. The second part is my client returns to work. The third part is they get workers’ compensation benefits.
Many clients believe that if they initiate a claim and/or hire a lawyer they are forbidden from returning to work. I love telling them this is simply not the case. I also tell my clients to not get a big head just because they hired a lawyer but to stay humble and do all they can to maintain a healthy relationship with their employer. I tell my clients to never forget their employer is the reason they have been able to pay their mortgage and support their family all these years. I also discuss that if their employer gets upset because they hired a lawyer they are probably upset because of the reputation my profession has. I suggest they stay professional even if their employer responds unprofessionally by telling their employer they are grateful for their job and hope to continue working for them for many years, assuming this is true, but needed a lawyer to guide them as they found the workers’ compensation system difficult to navigate on their own.
In addition, I want to know if my client is happy with their treating doctor and if not, discuss the option of designating another one. I want to know if they are having problems getting treatment authorized and if so, explore why. I also spend time discussing utilization review, independent medical review, and the medical treatment utilization schedule. If they are not working I want to know if they are getting temporary disability, and if not why. I discuss state disability benefits if they are not working or getting temporary disability. I also spend a lot of time discussing what it means to be found permanent and stationary and given work restrictions, especially if I know my client wants to return to work where they were injured. If my client is unable to return to work because the employer cannot accommodate their work restrictions, I explain they are entitled to a $6,000 voucher and a $5000 Return to Work Program payment. I further explain I will refer them to a counselor to help with both and discuss exactly what this means.
Doing the above allows me to be in compliance with the above rule requiring me to reasonably consult with my client about accomplishing their objectives.
After practicing workers’ compensation law 16 years, I still truly enjoy coming to work 95% of the time because I am interacting with adjusters, defense lawyers, and hearing representative who treat my clients, the court, and myself with respect, are well prepared, come to court on time, and dress professionally. Thank you to all those I have appeared against all these years for helping me help my clients. I could not have done my job without you. The 5% I find my job more challenging is usually when my opponents are baby adjusters, hearing representatives, or lawyers still trying to find their way. I will always forgive this 5% as I too was a baby lawyer 20 years ago and stumbled a lot before realizing how important it is to my clients to always have a good professional working relationship with all whom I came into contact with related to their case.
If uncertain about a course of action, seek advice by calling the Ethics Hotline at 415 538-2150. Your law license depends on it.
Please do not hesitate to email me at firstname.lastname@example.org with any questions about the above or joining the Executive Committee of the Workers’ Compensation Section of the CLA.
Until next month when the Legislation Subcommittee will be highlighted.
Maria Antonieta Sager, ESQ.