Agency conflict of interest checks

[arkstfan]

In my time as an ALJ I’ve been asked to verify by memo or more recently email that a claimant I issued a decision for was not a relative.

What I find interesting is this comes up on average about once every three years. In each case claimant’s last name was the same as my mother’s last name. There have been other decisions where it wasn’t questioned despite having that last name. I’ve never been questioned when the person shared my last name.

Anyone have any idea how the agency chooses to inquire or chooses to not ask.

I personally have a broad interpretation of conflict.

I’ve recused for fairly obvious reasons such as claimant was the mother of one of kid’s friends. Less obvious such as I didn’t know the claimant but recognized the name as a former student of my mother’s, I suspect with inquiry would have several mutual acquaintances. Questioned one claimant to insure wasn’t the former spouse of a cousin from a marriage short enough we never met.

Anyway, find it odd how the checks work.

[nylawyer]

I have no idea how the agency decides when to inquire, I've never seen that.

Back when I practiced in criminal court, there was a judge whose last name was Smith and she made a point of saying anytime a defendant came out with the same last name that she wasn't related. I have a fairly common name myself, so when I was working as a prosecutor at arraignments I initially used to say something similar if a defendant came out with the same last name. But, the defendants were always of a different race than me and apparently some thought I was making a joke that was kind of racist and inappropriate, so I stopped.

The Hallex (I-2-1-60a) on recusal is so broadly written that an ALJ could theoretically recuse on a host of cases. One of the examples offered is if the ALJ "shares an acquaintance with, but does not know, the claimant". Think about that for a moment- just "acquaintance". Doesn't have to be a particularly close relationship of either the ALJ or the claimant.

Heck, as drafted, any claimant repped by an attorney who has appeared before the ALJ previously "shares an acquaintance". Sounds crazy- but I know of one office where every single ALJ would recuse themselves from every case that was repped by a particular representative.

Putting that aside- I've seen claimants who were roughly my age and who grew up in the same town I did. Do I need to start comparing notes to figure out if we knew anyone in common 20 or 30 years ago? What if they are the same age as my siblings? Cousins?

And therein lies part of the problem- what if I only suspect there may be an acquaintance in common? I don't really want to start handing out a road map to claimants of all my close friends and family members, so I'm pretty limited in how to inquire. (And it's almost always something I first notice when I am prepping for the hearing the day before, so the only place to address the issue is at the hearing, and if their is any concern it results in an adjournment).

What about if the ALJ has treated with one of the doctors who has seen the claimant? In a smaller area that could quickly be a problem- what if the ALJ need some kind of orthopedic surgery and sought a couple of opinions? Or, what if it's just the ALJ treated at the same urgent care as the claimant?

It's one of the prime examples I would offer of the agency making rules that are not very well drafted or thought out.

[hopefalj]

I’ve recused myself a handful of times when it’s been a neighbor or someone who I’ve interacted with where I’ve gleaned some extrajudicial, firsthand knowledge about the individual that could have biased me in some way. I’ve never received an inquiry in my roughly 8 years.

In looking at the term acquaintance, I don’t know that professional relationships (doctor-patient, attorney-client, etc.) have ever been considered an “acquaintance” type of relationship. I think you’d have a hard time getting a recusal in those situations unless your spouse is their provider or attorney.

[superalj]

I’ve had to recuse myself a few times since when I worked in a smaller jurisdiction. I document the conflict in an email to HOCALJ when I recuse.

A few humble tips…

1. Same name as the claimant or rep State on the record that you are not related at hearing

2. If the claimant and I share a doctor, I only recuse if that doctor has submitted a medical opinion or the tx notes are material to the decision. My reasoning is I have extrajudicial knowledge of the physician and might be inclined to find that opinion more persuasive.

3. Acquaintance, again I look at whether I have extrajudicial knowledge and low bar on this issue as I will generally recuse.

Hope this helps and Happy Holidays!

[luckylady2]

I once recused because the claimant was a close relative of a VE that had testified before me often and the VE had put a third-party statement into the record, making the VE a fact witness.

[arkstfan]

Dec 22, 2022 22:46:03 GMT -5 superalj said:

I’ve had to recuse myself a few times since when I worked in a smaller jurisdiction. I document the conflict in an email to HOCALJ when I recuse.

A few humble tips…

1. Same name as the claimant or rep State on the record that you are not related at hearing

2. If the claimant and I share a doctor, I only recuse if that doctor has submitted a medical opinion or the tx notes are material to the decision. My reasoning is I have extrajudicial knowledge of the physician and might be inclined to find that opinion more persuasive.

3. Acquaintance, again I look at whether I have extrajudicial knowledge and low bar on this issue as I will generally recuse.

Hope this helps and Happy Holidays!

I’ve had the same doctor issue come up but none involved opinion evidence so not thought twice.

Former pastor of my church was a psychologist who did CE exams before giving up ministry and taking psychologist position out of state so that was an opinion situation I recused from.

[sta]

So what about the situation where the ME psychologist who testifies in most if not all the cases is part of the firm that is the only firm in town providing treatment. This situation existed in a town for years.

[tom b]

Let us agree that we are not "judges" who are subject to the Canons of Judicial Conduct. I do not mean to denigrate our calling, I am just simply saying that the Canons have certain specific areas of applicability, and usually Administrative Law Judges do not fall within the ambit.

That is not to say, however, that we should not be guided by the Canons. Our legitimacy is enhanced, indeed, if we do try to apply them to our individual situations.

Canon 3E in Virginia's version is instructive: It requires disqualification only when a judge's impartiality might reasonably be questioned. Would any person (whether claimant, representative, member of the public, reviewing authority) fully informed of all the facts believe that the judge could not fairly and impartially decide the case? That is what the test should be.

Remember, too, that that particular provision comes with case law about the "rule of necessity." Sometimes the judge is the only judge in town; that may be rare in our experience, but it does happen.

Just some thoughts.

Respectfully, Tom B

[tom b]

I forgot to mention this in the post. "Disqualify" and "recuse" might be used interchangeably, but they are not really the same thing. "Disqualify" is more objective while "recuse" is subjective. Recusal is always within the power of the judge who is considering financial interests, personal biases or affiliations, etc., as a step to take to avoid the appearance of impropriety or undue influence. I was merely using the language in the Virginia Canons in the post.

Respectfully, LTB

[FrogEsq]

I cannot speak to the Virginia code. Notwithstanding, I would propose all ALJs should consider the ABA Model Code of Judicial Conduct for Federal Administrative Law Judges

[jagvet]

Dec 28, 2022 10:14:00 GMT -5 FrogEsq said:

I cannot speak to the Virginia code. Notwithstanding, I would propose all ALJs should consider the ABA Model Code of Judicial Conduct for Federal Administrative Law Judges

"Consider" is fine, but it is only one of many sources.  Since ALJs generally do not benefit from the outcome of his or her determination, many of the recusal rules don't apply in most cases (financial interest, bias for [or against] a relative).  In smaller metro areas, the ALJ may be using a doctor in the case.  That should always be disclosed and a motion to recuse should be thoroughly evaluated.  In some cases, there would be a sua sponte duty to recuse one's self.  

On the other hand, the appearance of partiality or bias may outweigh a strict reading which would suggest non-recusal.

[ba]

Dec 22, 2022 3:24:40 GMT -5 arkstfan said:

In my time as an ALJ I’ve been asked to verify by memo or more recently email that a claimant I issued a decision for was not a relative.

What I find interesting is this comes up on average about once every three years. In each case claimant’s last name was the same as my mother’s last name. There have been other decisions where it wasn’t questioned despite having that last name. I’ve never been questioned when the person shared my last name.

Anyone have any idea how the agency chooses to inquire or chooses to not ask.

I personally have a broad interpretation of conflict.

I’ve recused for fairly obvious reasons such as claimant was the mother of one of kid’s friends. Less obvious such as I didn’t know the claimant but recognized the name as a former student of my mother’s, I suspect with inquiry would have several mutual acquaintances. Questioned one claimant to insure wasn’t the former spouse of a cousin from a marriage short enough we never met.

Anyway, find it odd how the checks work.

Maybe it's me, but with plenty of work in the government in my past life, I have a bit more than folks I personally know (which is going to immediately lead to my recusal) that come up for me. Whenever I see anything that either looks like it could be familiar or there's something in the record that triggers me to look, I immediately check my rather lengthy list of cases. In a number of years, I've had a handful that I've been led to recuse myself, even out of an abundance of caution. I've never had an issue with management in those circumstances.