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Do Attorneys Really Need to Take an Oath of Civility in our WC System?

Defense Perspective: by Michael G. McDonald, Esq.

Defense attorney Michael G. McDonald, Esq. of the McDonald Law Corporation comments on the State Bar's proposed oath of civility.


     

In the July 2013 California Bar Journal, Patrick Kelly, President of the State Bar of California, reported the State Bar is aggressively working to insert a civility code into the attorney oath in California. He reasoned that given the demands of our practices and pace of change in the law, attorneys “forget” the need to be civil to one another. Mr. Kelly noted incivility burns up time and wastes our clients’ assets. Such types of actions jeopardize our professional responsibility to our clients. Kelly argued that the more we, as attorneys, practice civility, the more we become worthy and serious opponents in any dispute. He states that “civility is highly respected by judges and makes a lawyer a much more effective advocate.”

The State Bar is seeking to insert civility wording into the attorney oath in California, so that attorneys entering the profession will be on notice from the start that civility is a fundamental duty of all attorneys. This may be done by statute (B&P section 6067) or by court rule. Six states have already added civility language into their oaths, including Florida, South Carolina, Arkansas and Louisiana.

 
The State Bar is aggressively working to insert a civility code into the attorney oath in California.

Do we, as attorneys, really need a change in the admission oath? There is certainly a changing landscape in our industry. New laws and procedures resulting from SB 863 will test the patience of all practitioners. In the past, experienced practitioners could provide answers and possibly explain the outcome of issues raised at hearings. Now, issues and solutions are not so clear. Have lien claimants paid the activation fees? If so, when? Our office actually has had trials on evidence over whether the activation fee was timely paid. Of course, this threshold issue does not go to the meat of the lien issue, but it goes to show how much procedure has taken over our formerly less structured system.

The rules and regulations are thousands of pages. We, including judges and lawyers, are expected to follow them. In the past, procedure seemed to take a back seat as a solution to a problem. Now, it seems that the solution to the problem may be to follow the new procedures. The informality of the system has been lost and will not be coming back, if the size of the Labor Code and case law are any indication.


New laws and procedures resulting from SB 863 will test the patience of all practitioners.

In the past, procedure seemed to take a back seat as a solution to a problem.

The players have changed. New judges, limited number of Board members, new adjusters (or burned out adjusters) and always new attorneys and hearing representatives testing our waters have added to our sense of stress and uncertainty. Fortunately, the recent SB 863 changes have finally placed non-attorneys under the same ethics rules as attorneys. In the recent past, non-attorneys have been able to get away with actions which would be considered unethical if done by a licensed attorney. I believe this change in law is a major step in formalizing procedure before the WCAB. It is also a major step in holding all advocates accountable for their actions before the WCAB.

Labor Code section 4907(b) states that non-attorney representatives shall be held to the same professional standards and conduct as attorneys. Non-attorneys representing lien claimants and even injured workers seemed to have their own set of rules, which has included playing fast and loose with facts. Due to repeated issues with several “representatives” our office has required all communications be in writing. This policy has prevented any “miscommunication” with the representative. Interestingly, our office has not had the same issue with attorneys, even though I have heard of instances where some opponents seem to play by their own rules.


Non-attorneys representing lien claimants and even injured workers seemed to have their own set of rules, which has included playing fast and loose with facts.
 

Direct communication, creating opportunities to close any communication gap and developing effective questioning and listening skills is a vital component to our practice of law. I try to instill good listening skills in my associates. By doing so, they become attentive to the meaning of what is being said. Good listening skills require one to ask questions, control emotions and respond appropriately. This can be done with our clients and our opponents. For instance, does your opponent want to settle the case, obtain medical treatment or just want to go to the Board to right a wrong? We need to determine the motive behind the actions of our opponent.

Recently, an applicant attorney and I had several expedited hearings concerning his client’s continued refusal to treat within the MPN. My client wanted to reduce the intake of medications, which we believe could kill the worker. The worker resisted all attempts to participate in an intervention program. Fortunately, we had all the correct answers for the judge regarding the MPN. Once the judge was satisfied both counsel had done all we could do, the applicant attorney had a very frank discussion concerning the continued medical treatment.

We came to learn the worker was afraid of what might happen if the medications were reduced. Her attorney was able to convince her she could not continue on the path she had undertaken. She agreed to go to a program which provided physical and emotional support. Ultimately, her medications have been reduced and we are going to an AME to resolve the PD issues. This outcome would not have been possible without trust and open communication between the parties.


Good listening skills require one to ask questions, control emotions and respond appropriately. This can be done with our clients and our opponents.
 

Organizations such as CAAA, the CWCDAA and local industrial associations have been holding seminars and training on the new laws and procedures. It is great to see how many attorneys, adjusters and hearing representatives have taken part in these sessions. It is also great to see and discuss issues in an academic environment with our opponents. Have the various parties been civil to each other at these sessions? You bet. Does everyone have the answers? No. Can we work in an environment where uncertainty prevails and learn from each other? Yes we can.

Perhaps we do not need any formal change in our admission oath, if we continue to work together, act professional and do not waste our clients’ time and resources.

Can we work in an environment where uncertainty prevails and learn from each other? Yes we can.

Perhaps we do not need any formal change in our admission oath, if we continue to work together, act professional and do not waste our clients’ time and resources.

 

Michael G. McDonald is the founder of McDonald Law Corporation in Concord, California and a Certified Specialist in Workers' Compensation Law, State Bar of California. He is a Director for the California Workers’ Compensation Defense Attorneys Association. For more information click here.

Michael G. McDonald, Esq.
McDonald Law Corporation
1800 Sutter Street, Suite 430
Concord, CA 94520-2563
Voice: (925) 363-4380
Fax: (925) 363-4352
Other locations: Sacramento, San Jose and Fresno

 

 

Mike McDonald is a regular guest at the Roundtable or the Magazine
 
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