Rep's Duty Regarding Evidence Submission

[sta]

Lurker/DIBs stated the following which suggests her practice of assisting the Judge in docket management at the hearing in such manner that may conflict with her obligation to represent her client:

"If it is a loser case, with no chance of winning (or less than 30% chance of winning) I still go through the motions. I ask to speak with the judge before the hearing and let him/her know that I know I have a loser case but that I didn't want to waste any more hearing times by withdrawing and the judge then letting the claimant have additional time to find a different lawyer. I also say that I will not appeal the denial under any circumstances. And I also tell them that, although with a little more hard work and persuasion I could have convinced by client to withdraw his case, those cases help the judge not become an "outlier" with too many favorables. That last statement is always in jest, but really there is no need to withdraw a case 24-48 hours prior to a hearing. The hearing reporters get mad cause they don't get paid, the experts get mad because they prepped for no reason, etc. Sometimes during those hearings I actually ask the claimant questions that I know will help support the unfavorable decision. I think judges and reps need to work a little more closely together. Most of the time, questions are easily answered if the questions are simply asked."

The specific language suggesting a conflict of interest is her stated goal of helping the judge not become an "outlier" with too many favorables by asking the claimant questions that she knows will help support the unfavorable decision.

How many favorable decisions or the ratio of favorable versus unfavorable decisions is immaterial to how counsel should approach a case. After all, Lurker/DIBs is representing claimants, and her apparently stated practice of trying to disprove disability based on a quota is absurd. My question is whether other practitioners have heard of this novel approach to representing claimants at hearings?

[papresqr]

Oct 3, 2013 17:15:07 GMT -5 sta said:

Lurker/DIBs stated the following which suggests her practice of assisting the Judge in docket management at the hearing in such manner that may conflict with her obligation to represent her client:

"If it is a loser case, with no chance of winning (or less than 30% chance of winning) I still go through the motions. I ask to speak with the judge before the hearing and let him/her know that I know I have a loser case but that I didn't want to waste any more hearing times by withdrawing and the judge then letting the claimant have additional time to find a different lawyer. I also say that I will not appeal the denial under any circumstances. And I also tell them that, although with a little more hard work and persuasion I could have convinced by client to withdraw his case, those cases help the judge not become an "outlier" with too many favorables. That last statement is always in jest, but really there is no need to withdraw a case 24-48 hours prior to a hearing. The hearing reporters get mad cause they don't get paid, the experts get mad because they prepped for no reason, etc. Sometimes during those hearings I actually ask the claimant questions that I know will help support the unfavorable decision. I think judges and reps need to work a little more closely together. Most of the time, questions are easily answered if the questions are simply asked."

The specific language suggesting a conflict of interest is her stated goal of helping the judge not become an "outlier" with too many favorables by asking the claimant questions that she knows will help support the unfavorable decision.

How many favorable decisions or the ratio of favorable versus unfavorable decisions is immaterial to how counsel should approach a case. After all, Lurker/DIBs is representing claimants, and her apparently stated practice of trying to disprove disability based on a quota is absurd. My question is whether other practitioners have heard of this novel approach to representing claimants at hearings?

Not trying to support or defend her overall statement, but I have to point out the highlighted portion above, which comes immediately after the language you mention is a conflict of interest.

[witty]

Lurker/Dib reporting that she speaks with the judge before hearing to let the judge know that she has a "loser case"  appears to be a violation of a many ethical rules.  Both the ALJ and the representative seem to be violating ethical rules.  The ALJ is required to put on the record conversations held outside of the hearing regarding the matter.  Did the ALJ put in the record that the ALJ had a talk before hearing with the claimant's representative and that the claimant's representative informed the ALJ that the case is a loser?   Also, the claimant's representative - an attorney I guess, is bound by the ethical rules to zealously advocate for her client.  Did the claimant representative tell her client that she told the ALJ before hearing that claimant's case stinks?  I immediately see so many violations here without even researching the rules on ethical attorney behavior or administrative law judge obligations.  Is this a joke?  The whole thing reeks.  Who now wonders why lawyers have a bad reputation and the public has a perception that a lawyer cannot be trusted?

[epic0ego]

My how quick we are to judge our colleagues. I am amazed. This is a blog that makes an art of paraphrasing. Are we really prepared to block and cut these blog entries and enter them into evidence? Really folks, I am surprised. If someone said "I told the judge my client's case is a loser," that is one thing. If someone says that I "let the judge know" that I had a loser case, that is quite another. We are judges for God's sake. Can we see this distinction? I have asked counsel pointed questions, on many occasions, where I plainly ask: "if your client cannot meet the 3rd prong of the 4 prong test, each one of which is required, then they cannot prevail in this case. Do you agree with that?" The best lawyers say something to the effect that "well, I have an ethical obligation to zealously represent my client, your honor. I agree that that is the state of the law. However, taking the facts in totality, I believe that my client meets the 4-prong test." If a lawyer makes this statement, is she "letting the judge know" that the case is a loser? Let's take some evidence folks.

[moopigsdad]

I believe lurker misspoke when she wrote that post. She, I am sure, zealously represents her clients within the bounds of the law. If not, I am sure her practice would have suffered and she would no longer be in practice. The best way to get future business in a SSA disability practice is to have happy clients who refer you more clients. I agree with epic and papre that we shouldn't jump to conclusions so quickly over lurker's remarks. We need to give someone the benefit of the doubt until we know the whole story. I am not going to judge lurker based on just one post.

[JudgeRatty]

Oct 3, 2013 19:19:19 GMT -5 moopigsdad said:

I believe lurker misspoke when she wrote that post. She, I am sure, zealously represents her clients within the bounds of the law. If not, I am sure her practice would have suffered and she would no longer be in practice. The best way to get future business in a SSA disability practice is to have happy clients who refer you more clients. I agree with epic and papre that we shouldn't jump to conclusions so quickly over lurker's remarks. We need to give someone the benefit of the doubt until we know the whole story. I am not going to judge lurker based on just one post.

Thank you MPD for this comment. I am really disappointed in many of the comments on the board in the past few months. It seems we are "eating our young" lately. This is not cool at all. I tried to inject some positive vibes by starting the thread about staying positive earlier last month, but here it goes again. The judgements about our fellow board members needs to stop. I am quite sure everyone on this board is aware of our ethical obligations. No need to pummel anyone about it.

[lurker/dibs]

I must say that, in my own defense, I do not violate any ethical rules with the way I practice. I sit down and personally speak with each of my clients. I explain to them when they have a loser case. I explain to them that they should dismiss their case. I give them the whole speech. I also give them the opportunity to get alternative representation. In the majority of the cases I was referring to, the client says they understand they will lose their case, but they want "their day in court" even if they will lose. I also get permission from the client to explain that to the judge. This cuts down on the length of time a hearing takes. And, yes, we put it on the record.

Let me distinguish this with cases that have any possible chance of winning. If a case has merit, I argue it. I will zealously represent my clients. My win rate is well over 85%. And, although this may be hard to believe, I have had many referrals from those very clients who I explain how and why they were going to lose. I am always up front with all of my clients. I explain the weaknesses and strengthens of their cases. They know that I am honest with them--for better or worse.

I always do my very best in every single case. Perhaps I was not very clear or spoke with not enough specificity when I wrote my previous post. However, I believe that being honest with my clients is of the utmost priority. But being honest with the judge is also a priority. And I think that when a judge knows that an unfavorable decision will be issued and not appealed and the client just wants his/her day, it allows the judge to relax a bit and make the claimant more comfortable. And my point before was that some reps are totally honest and do not withhold evidence from a judge.

As always, I welcome critiques from any and all of you. I thank those who gave me the benefit of the doubt. If I do something unethical, that violates the rules, or is otherwise not accepted, I ask that it be brought to my attention. I have never had a bar complaint or even an inquiry and I certainly do not want to get one while going through this process

[mcb]

Maybe we should lock this thread.

[privateatty]

We have a duty as attorneys to zealously represent the interests of our clients. We also have a duty of candor to the tribunal; i.e., the Judge. How we balance those interests is part of the challenge of being lawyers. We have all seen what happens when Prosecutors forget this. I will give lurker the benefit of the doubt raised and take what she has said at face value.

And mcb, this is good stuff. We need more discourse like this here.

[trekker]

I purposefully did not reply to this thread for some of the reasons others have listed above. I believe we all know that sometimes we don't write lengthy responses and that sometimes our responses can be misinterpreted. Lurker has explained her response and while I have a somewhat different approach in handling cases that go from "I can make an argument for this client who wants his/her day in court" to "this client is going to lose, no doubt about it", I would never try to second guess a practitioner who has a respected practice. We reps will often get a doctor's (or teacher's, or therapist's) letter or questionnaire just days before a hearing (even days after a hearing) or I'll get medical records at the last minute that show a client has lied to me and has been abusing drugs and alcohol. And for those of you who have not practiced SSA disability law, that is not an unusual scenario (especially for legal aid attorneys who cannot afford the huge fees that providers charge). If that questionnaire says: this person has no impairments that prevent him/her from working (or engaging in age appropriate activities), what am I as an attorney supposed to do. There is also the issue of preclusion or res judicata. I have to explain that to the client, especially one who is going slip into a more favorable age group in a year or two. And the one thing that I tell the client (and I suspect that Lurker does as well since she hinted at it), is that if we go ahead with this hearing, I have to submit this damaging report (since the ALJ will usually ask me if I have received any other information from the treating physician) and if I think you are going to lose, then the ALJ who is looking at the same evidence as I am, is also thinking the same thing. The main difference in our practices, is that I don't have a meeting with the ALJ prior to the hearing unless the ALJ requests it and that I will withdraw the hearing request anywhere from the weeks before the hearing to the day before the hearing. On rare occasions, I have withdrawn it on the day of the hearing. Sometimes it takes that long to convince the client that their day in court may do more damage in the long run. IMHO

[lurker/dibs]

Trekker, you said it much better than I did. Although every ALJ at one of the ODARs I practice in regularly speak with the attorneys before the hearing on nearly every case. Only the new judges (those who have been there less than a year or two) do not. We do that to discuss amending onset dates, if the claimant meets a grid or listing, if there is a question of missing evidence, etc. Those discussions are always put on the record at the opening of the hearing. I do my best to convince those particular clients to withdraw their request for hearing, even up to the moment we walk into the hearing. But some insist on continuing. I do what the client wants in that regard. But I have never, ever intentionally withheld evidence on a case--favorable or unfavorable.

I have been practicing longer than all but 3 or 4 of my local ALJs. I think there is an element of mutual respect and candor that is in place at our ODAR that is not in place at the other ODARs where I practice. The way I attempted to describe how I try to do things only applies to one ODAR, not all of them. And I know most ODARs do not operate this way.

And, I will say, that sometimes I forget that exaggeration, sarcasm, and humor do not come across well when things are typed. I will do my best to keep that in mind from this point forward. I know most people are good and honest people. Even most of my clients are. I try to give each person an opportunity to prove that belief wrong before I change my mind. And in the back of my mind I always, always tell myself that the only thing different between me and most of my clients or anyone else is that I chose to go to law school. We are all human. We all make mistakes.

[trekker]

Back in the early days of my practice, there was some information available to ALJ's that was not made available to the reps (eg certain wage records). And it was the days of paper files. I learned a hard lesson during those days when I had a client in his 60's that gridded out. I had submitted an OTR brief and couldn't understand why we going through with the hearing. I even had a good cop/bad cop relationship with the ALJ. And he was grouchy but fair and a former legal aid attorney. What I didn't know but the judge knew, was that my client was working at a restaurant and earning SGA. Surprise, surprise, the client had lied thinking no one would catch him. Lesson learned. And Lurker is right. Practices differ from ODAR to ODAR and ALJ to ALJ.

[epic0ego]

lurker, moopigsdad and colleagues, thank you for your elucidating posts. who among us who have truly litigated cases for more than 10 years (which is the ALJ requirement), have not engaged in discussions with judges, indeed prosecutors or opposing counsel, where they discussed the painfully obvious weaknesses of their case? If you have not, then I submit that you have not really litigated, and you may have left some opportunities on the table that might have benefitted your clients. Also, it is lawyers like lurker, who have gained credibility with judges over the years, that clients most benefit from. As others have said, we are ethically obligated to be candid with the Court, and discussing the prospects of prevailing, within bounds, is often very appropriate. Isn't that what every injunction hearing is all about, viz. likelihood of success on the merits? When I was a lawyer, I appreciated it when a judge would "suggest" that my client might be better-advised to consider having the case referred to a settlement judge. Did this mean that the judge had prejudged the case or was somehow not being "fair and impartial?" I think not. I have also had cases since coming on the bench where I acted as a settlement judge and even though the case didn't settle, both parties requested that I act as the trial judge -- and signed conflict waivers to have me do so. I had naysayers criticize me for agreeing to this but I was driven by the insistence of both parties that they had confidence in the way I would handle what was a factually-complex case, as well as my considered belief that I could render a fair and impartial decision. Is it sometimes difficult to balance ethical obligations? Of course, but that is why we "make the big bucks," and the reason we all went to law school. I accept that lurker was merely paraphrasing and I see no need for her to file a brief on this blog. Lurker, it is an honor to blog with you and I would be happy to have you appear in my administrative court, anytime. You may find that I might display a little jealousy from time to time, but I promise to do my best not to hold your 'bama pride against you.