Hearing Representatives and the Rules of Professional Conduct
Unbeknownst to many, including some Workers’ Compensation Judges, the California State Bar Rules of Professional Conduct, which sets the ethical standards for attorneys, are applicable to hearing representatives even though they are not licensed attorneys.
In the 1980 en banc decision In Re Discipline, Suspension Or Removal of the Privilege of Louis Moran To Appear In Proceedings Before The Board (Labor Code §4907) 45 CCC 519, the WCAB left no doubt that the same standard of integrity applies to lay representatives as to attorneys and subjects them to the State Bar Rules.
The issue in Moran was the removal of Mr. Moran’s privilege to appear before the WCAB under Labor Code section 4907 which states, in part, “The privilege of any person, … to appear in any proceeding as a representative of any party before the appeals board, or any of its referees, may, after a hearing, be removed, denied, or suspended by the appeals board for a violation of this chapter or for other good cause.”
Noting that the term “good cause” was not legislatively defined, the Board turned to the State Bar Rules to “…demarcate the sanctionable limits of advocacy and indicate how–what may at times be–conflicting duties to clients, opposing parties and the Board, are to be reconciled. These Rules also give an attorney or lay representative notice of what sort of conduct is required. By appearing as a lay representative he is charged with accepting certain limitations on his advocacy.”
The ethical violations alleged to have been committed by Mr. Moran were representing conflicting interests without the consent of the opposing parties, fraudulently altering a Compromise and Release document and falsely representing himself as an attorney. The Board reasoned that conduct of this type “…cannot be tolerated whether it is done by an attorney or lay representative …” with consideration given to the fact “… that these actions are the very sort that the public must be protected from …”
Hearing representatives appearing at Board proceedings are commonplace with their clients including injured workers and, more often than not, lien claimants. For the most part, they carry out their duties and responsibilities in a professional manner. However, that is not always the case as can be evidenced by the September 21, 2011 en banc In Re: Daniel Escamilla Misc. No. 254. These cases illustrate that ethical violations can have dire consequences for lay representatives.