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Post by Deleted on Jan 7, 2015 8:47:07 GMT -5
Reviewing the Rules of Conduct and Standards of Responsibility for Representatives: 20 C.F.R. s 404.1740 www.ssa.gov/OP_Home/cfr20/404/404-1740.htmHas anyone on the board successfully moved to have a non-attorney representative disqualified? Or, does anyone have first-hand knowledge of an attempt to disqualify a rep that was or was not successful? Thanks,
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Post by Deleted on Jan 7, 2015 14:15:34 GMT -5
This Law Journal article may or may not be of assistance. Either way, it's an interesting read: Swank, Drew A, “Non-Attorney SSD Representatives and the Unauthorized Practice of Law” Southern Illinois Law Journal, Vol. 36, at 151 (2012), referencing SSA’s list of sanctioned representatives (April 11, 2011) available at odar.ba.ssa.gov/odarweb/oac/scsrep.cfm. According to Swank, since 1980, when records began, a total of 178 representatives have been suspended or disqualified from representing claimants before SSA. Of the 178, 101 have been non-attorney representatives. Edit: I just tried the odar link and it's not good. However, I'm sure you can locate the article online. OK, here's the link to the article: aalj.org/system/files/documents/swank_upl.pdf
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Post by agilitymom on Jan 8, 2015 7:32:16 GMT -5
I've never tried to have one disqualified, but it must work because it seems like I'm getting weekly emails about this or that rep being disqualified.
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Post by Deleted on Jan 8, 2015 8:24:58 GMT -5
Then it seems that the 2011 numbers have greatly increased. I personally think that the higher denial rate nationwide in recent years has contributed to an influx of bad non attorney reps. Good attorneys can't afford to stay in this field of the law. It is being taken over by non-attorney factories that offer shoddy representation.
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Post by moopigsdad on Jan 8, 2015 8:49:56 GMT -5
Then it seems that the 2011 numbers have greatly increased. I personally think that the higher denial rate nationwide in recent years has contributed to an influx of bad non attorney reps. Good attorneys can't afford to stay in this field of the law. It is being taken over by non-attorney factories that offer shoddy representation. You have hit the nail on the head there Hanna22 with your statements. The non-attorney factories have killed the SSA practice for most good attorneys along with the higher overall denial rate. Furthermore, the level of client that walks in the attorney's door now is not as good a candidate for disability as those in previous years to the practice.
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Post by Pixie on Jan 8, 2015 9:07:15 GMT -5
Some regions pursue disqualification more "vigorously" than others, but none very much so. There must be an egregious violation for disqualification. In my experience, what happens, or doesn't happen, at the hearing is seldom a reason for disqualification.
Perhaps an OGC type who handles these matters has a different perspective?
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Post by Deleted on Jan 8, 2015 9:46:04 GMT -5
Moopisgad: I have a hearing monitor friend who often tells me (in general detail) about the meritless cases that she sees at the ODAR where she works. Some of her stories are downright absurd: ongoing 20-something heroin addict, no work history, mild depression and no other impairments, as an example. In response, I say- yes, but was it a pro se case? She inevitably replies that the individual was in fact represented by either a non-attorney or sometimes even an attorney. Here's what I don't understand: why would anyone waste time on that case? Surely, even a higher granting judge in today's climate will deny it. I would like to think that the higher denial rate nationwide would have an impact on the types of cases that both attorneys and non-attorneys agree to represent. It has certainly had an impact on my selection process in private practice. I suppose these factories work in extremely high volume and think that taking 20 meritless cases in hopes of 1 grant is worth it in light of the minimal effort that is put into each case?
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Post by moopigsdad on Jan 8, 2015 10:36:18 GMT -5
Hannah: The non-attorney representative factories will take anything as they spend very little money representing clients. However, I will say a client deserves representation if they truly want to proceed and have even a very remote chance of winning. I will try to explain in great detail why it is not worth pursuing the claim to the client and the likely damage the client may due to himself/herself should he/she develop a good claim in a year or two. Usually I am successful in convincing him/her to withdraw the hearing request. Occasionally, like you, I have had to take a "clunker" to hearing. It is rare.
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Post by Deleted on Jan 8, 2015 11:10:33 GMT -5
taking 20 meritless cases in hopes of 1 grant is worth it in light of the minimal effort that is put into each case? Hit nail on head.... takes prize. In response: I defer to SB 3003, Sec. 204(b) hereinafter without further comment.
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Post by Deleted on Jan 8, 2015 11:51:18 GMT -5
Moopisgad: I believe that there is an ethical dimension to the client selection process, as well. When a potential client phones my office and we discuss the case, I can get a relatively good sense of whether or not the case has merit and the overall intentions of the claimant in filing for benefits. If the case, on its face, is medically weak then the question arises: Why is it weak? Lack of proper insurance, transportation, agoraphobia, etc? Or is my gut saying: dang, this individual is able to work and chooses not to for whatever reason that has nothing to do with his or her alleged impairments. It's not always a cut and dry process, of course, but I don't want to feed into the public's perception that lawyers represent fraudulent cases.
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Post by moopigsdad on Jan 8, 2015 12:21:41 GMT -5
Moopisgad: I believe that there is an ethical dimension to the client selection process, as well. When a potential client phones my office and we discuss the case, I can get a relatively good sense of whether or not the case has merit and the overall intentions of the claimant in filing for benefits. If the case, on its face, is medically weak then the question arises: Why is it weak? Lack of proper insurance, transportation, agoraphobia, etc? Or is my gut saying: dang, this individual is able to work and chooses not to for whatever reason that has nothing to do with his or her alleged impairments. It's not always a cut and dry process, of course, but I don't want to feed into the public's perception that lawyers represent fraudulent cases. Hannah22: You are correct that 99+% good attorneys are not bringing in fraudulent cases. They may bring in some weaker cases, but not fraudulent ones. I think we are both close together on dealing with claimants and the proper handling of disability cases. *** EDIT *** Unfortunately, I no longer run my own private practice, but I still do SSA law. I am employed by the State to help indigent or disabled clients try to get SSI benefits. I got out just as things were starting to turn bad for SSA practitioners, so this way I have a built in bi-weekly check and state benefits to boot.
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Post by Deleted on Jan 8, 2015 13:02:46 GMT -5
Hannah22: You are correct that 99+% good attorneys are not bringing in fraudulent cases. They may bring in some weaker cases, but not fraudulent ones. I think we are both close together on dealing with claimants and the proper handling of disability cases. Agreed. Ethics aside, it just makes for bad business to take on weak or fraudulent cases. Also, unlike criminal defense attorneys, we are not fighting to uphold an individual's Constitutional right to a fair trial, and the presumption of innocence until proven guilty. In my way of thinking, all disability claims with at least some merit are deserving of representation (maybe not by me, but by someone else who wants to take the gamble . As you well know, a case's merit can either increase, pending hearing (as new evidence is acquired), or decrease (for example, with substance abuse or noncompliance). The quality of the case is often not entirely determinable until the day of hearing.
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Post by Deleted on Jan 8, 2015 14:21:37 GMT -5
Some regions pursue disqualification more "vigorously" than others, but none very much so. There must be an egregious violation for disqualification. In my experience, what happens, or doesn't happen, at the hearing is seldom a reason for disqualification. Perhaps an OGC type who handles these matters has a different perspective? Yes, this is my concern. I have a bad actor who is unprofessional, incompetent, and generally extremely hard to work with. Without saying more, I do not think there will be an egregious violation like fraud, but I still do not believe this person should be representing claimants. I have it on good authority that the rep has been banned from the local ODAR office as well as some other local agencies/courts. Were this person a lawyer, I suspect they would have been disbarred long ago. Yet, they are still allowed to rep claimants at SSA. The question is whether violating provisions of the Standards of Conduct for Representatives like "A representative must not...(7)Engage in actions or behavior prejudical to the fair and orderly conduct of adminstrative proceedings, including...(ii)Willful behavior which as the effect of improperly disrupting proccedings...(iii)Threatening of intimidating language...etc.", is sufficent to convince OGC to back me and the other ALJ's up when we request a suspension/disqualification.
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Post by luckylady2 on Jan 14, 2015 16:17:57 GMT -5
One of the biggest problems with this kind of behavior is that it often is a matter of tone of voice, so it isn't apparent in a written transcript; establishing it is difficult. Do you have a contact at OGC that would be willing to sit in on a hearing with this rep and give you his or her take on it?
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Post by Propmaster on Jan 21, 2015 16:45:06 GMT -5
Some regions pursue disqualification more "vigorously" than others, but none very much so. There must be an egregious violation for disqualification. In my experience, what happens, or doesn't happen, at the hearing is seldom a reason for disqualification. Perhaps an OGC type who handles these matters has a different perspective? Yes, this is my concern. I have a bad actor who is unprofessional, incompetent, and generally extremely hard to work with. Without saying more, I do not think there will be an egregious violation like fraud, but I still do not believe this person should be representing claimants. I have it on good authority that the rep has been banned from the local ODAR office as well as some other local agencies/courts. Were this person a lawyer, I suspect they would have been disbarred long ago. Yet, they are still allowed to rep claimants at SSA. The question is whether violating provisions of the Standards of Conduct for Representatives like "A representative must not...(7)Engage in actions or behavior prejudical to the fair and orderly conduct of adminstrative proceedings, including...(ii)Willful behavior which as the effect of improperly disrupting proccedings...(iii)Threatening of intimidating language...etc.", is sufficent to convince OGC to back me and the other ALJ's up when we request a suspension/disqualification. In the not too distant past, I prepared 2 referrals of representative misconduct, 1 each to 2 different regions. Each contained evidence gathered to document several violations of the standards for representatives before the agency. Each was about 30 pages of referral and about 400-500 pages of indexed and tabbed documentary evidence of the specific violations. One disappeared into a black hole despite repeated requests for status and nothing was ever done. The other was evaluated by an OGC and the only complaint that was found to have merit was the representative's practice of having claimants sign the bottom of blank fee petitions at their intake meetings with the representative, thereby allowing the rep to post-date the signature and make it appear as if the claimant agreed with the representative's outrageous (and usually double-billed) hours and fee request after the case was completed. I suppose the evidence that swayed them was the signed agreement from a claimant who had died prior to the decision in his case (and before the date of the signature). The 'remedy' was that OGC called the rep and told the rep not to do that, and the rep promised not to do it again. That was it. The unsolicited testimonial letters from multiple clients detailing the rep's fraudulent billing was unremarkable to OGC. Our office decided never to bother to refer another representative because it is a waste of everyone's time. I expect that 90-103% of disqualifications are based on reports of disbarrment or arrest, not anything the representative actually did to retard the workings of our system.
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Post by hopefalj on Jan 21, 2015 18:10:43 GMT -5
By way of example of how difficult it is to be disqualified, Eric Conn is still practicing disability law, right? I get that he has yet to be found guilty of anything, but when you've been charged with defrauding the government of millions in fees, perhaps you shouldn't be allowed to continue practicing pending that determination?
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Post by Deleted on Jan 21, 2015 20:20:15 GMT -5
Ah. That is the disappointing personal example I was, unfortunately, expecting. If my bad guy could have been bounced, I am sure he would have been bounced long ago by better ALJs than me.
But, on a positive note, I do have a game plan based upon Prop's experience. I think I will collect transcripts and other evidence, and submit them to OGC, as they did, on the assumption that I will be largely ignored. I will then collect more, and re-submit, again and again, until they take action just to shut me up. The Squeaky Wheel Theory. It is a marginally better plan than tolerating intolerable behavior and assuming that the status quo can never be changed. I would rather waste my energy than do nothing, when clearly...something should have been done long ago.
Thanks for the tips. I'll report back if I have any success.
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Post by hopefalj on Jan 21, 2015 21:11:41 GMT -5
Good luck, robg. Shawshank taught me that persistence can pay off, whether it was the constant badgering of the state senate for library funds or the 20ish years of tunneling behind a poster of the decade's fairest woman. All you can do is what you can do, and it is commendable that you are taking extra time out of your life in the pursuit of principles. I hope it works out.
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Post by sealaw90 on Jan 22, 2015 8:50:00 GMT -5
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Post by Propmaster on Jan 22, 2015 14:14:37 GMT -5
Ah. That is the disappointing personal example I was, unfortunately, expecting. If my bad guy could have been bounced, I am sure he would have been bounced long ago by better ALJs than me. But, on a positive note, I do have a game plan based upon Prop's experience. I think I will collect transcripts and other evidence, and submit them to OGC, as they did, on the assumption that I will be largely ignored. I will then collect more, and re-submit, again and again, until they take action just to shut me up. The Squeaky Wheel Theory. It is a marginally better plan than tolerating intolerable behavior and assuming that the status quo can never be changed. I would rather waste my energy than do nothing, when clearly...something should have been done long ago. Thanks for the tips. I'll report back if I have any success. If you are going to do this, one additional suggestion. Our materials were all prepared without PII by assigning each involved claimant a claimant ID number. The "translation" sheet was provided separately and on a single page that allowed PII to be more easily controlled and all documentary evidence was redacted (with originals saved for reference/verification). Make sure you don't end up getting in trouble by disclosing PII inappropriately, because they will use that to avoid getting to the point you are trying to make. And you'll be in trouble.
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