Eric Conn

[upperwolfjaw]

Anyone wondering whether a state bar ethics rule has any effect when confronted with a regulation issued by a federal agency need only check the Supremacy Clause and the discussion of same in the intro to the recently-published All Evidence regulations. Or, you can just accept generally that bar ethics rules get crushed, whether they concern privilege, advocacy, duty to report malpractice, or anything else.

[upperwolfjaw]

cites for the curious: 80 Fed. Reg. 14833 and Sperry v. Florida ex rel. Florida Bar, 373 U.S. 379 (1963)

[pumpkin]

Does being represented at an SSA disability hearing by an attorney who is shortly thereafter disbarred or suspended give rise to an "ineffective assistance of counsel" argument on appeal?

[upperwolfjaw]

nope

[upperwolfjaw]

An ALJ "wears many hats" and one of them involves watching out for the rights of a claimant and seeing to it that the record is full and fair. In this non-adversarial administrative system, there isn't anything akin to the ineffective assistance claim/appeal. There isn't a right to counsel, or a right to effective counsel. When hearing-level counsel is terrible ("potted plant," is our slang, normally), all that happens on appeal is the appeal is harder because so many issues can be waived in most circuits.

[ba]

May 4, 2016 17:37:19 GMT -5 pumpkin said:

Does being represented at an SSA disability hearing by an attorney who is shortly thereafter disbarred or suspended give rise to an "ineffective assistance of counsel" argument on appeal?

No constitutional right to effective counsel, ergo no ineffective assistance claim.

[bartleby]

Actually, IIRC, there is a right to counsel.... It can be an attorney, your mama, your cell mate, or an ex-ALJ. You can request a postponement to obtain counsel. The Appeals Council frowns mightily if you squash a claimant's right to representation. God only knows what a District Court would do, once they finished laughing....

[Propmaster]

May 4, 2016 21:19:40 GMT -5 bartleby said:

Actually, IIRC, there is a right to counsel.... It can be an attorney, your mama, your cell mate, or an ex-ALJ. You can request a postponement to obtain counsel. The Appeals Council frowns mightily if you squash a claimant's right to representation. God only knows what a District Court would do, once they finished laughing....

I think you're using the term "right to counsel" differently from the Constitutional version. I think the Constitutional version means you must be provided counsel because you have a right to it. In an SSA proceeding, you have the right to bring your counsel, if you have one, and the counsel has certain abilities to do things, but you will never get one appointed for you - there is no "right" to have counsel.

[cowboy]

The Constitution provides the right to counsel, but only when the person is facing criminal liability. A claimant is entitled to bring a representative (attorney or non-attorney), but can waive a representative. One will not be appointed for them at the hearing. I had to explain that more than once. There are no "ineffective assistance of counsel" claims in civil or administrative proceedings. That's also only for criminal cases, but at times I think those rules need to be strengthened.

[ba]

May 5, 2016 11:15:11 GMT -5 cowboy said:

The Constitution provides the right to counsel, but only when the person is facing criminal liability. A claimant is entitled to bring a representative (attorney or non-attorney), but can waive a representative. One will not be appointed for them at the hearing. I had to explain that more than once. There are no "ineffective assistance of counsel" claims in civil or administrative proceedings. That's also only for criminal cases, but at times I think those rules need to be strengthened.

Due process requires a right to counsel, as in the right to hire counsel of your choice. And due process does not require that counsel be effective. If a lawyer falls below professional norms, that is an issue between the client and the lawyer (e.g. Malpractice, bar complaint, etc.).

The Sixth Amendment had a right to counsel in "criminal proceedings" that requires 1) that counsel be effective and 2) that counsel be available to those who cannot afford it and do not want to exercise their concurrent right to self representation.

A claim of ineffective assistance of counsel is based on the right to EFFECTIVE counsel, not just the right to hire counsel, which is why it is based in the Sixth Amendment (and incorporated to the States by the Fourteenth). The Fifth Amendment due process clause (which is the one applicable to the federal government) does not mandate counsel be appointed of indigent or effective, so no ineffective assistance claim based on civil or administrative representation.

That's why I said above, no right to effective counsel, ergo no ineffective assistance claim.

HTH.

[unlisted]

Of course state bar ethics rules apply to federal attorneys. That's the McDade Amendment, 28 U.S.C. § 530B. It's tricky when a federal administrative forum adopts an ethics rule at odds with a state in which we practice (not every state uses the Model Rules unaltered), but we can't get out of following the state rules.

www.law.cornell.edu/uscode/text/28/530B

[upperwolfjaw]

You don't have to peer into this vary far to come to the conclusion that federal law trumps bar ethics rules - always.

The McDade Amendment doesn't say anything to the contrary, it just places federal attorneys in the same position as private-practice attorneys when it comes to ethics rules. State bar ethics rules are a backup. If they conflict with a federal law, the federal law controls. Section 530B just clarifies that there is no difference between federal-practice lawyers and private-practice lawyers - the Supremacy Clause applies regardless.

This is, by the way, an issue that was hotly debated regarding Social Security about 8-10 years ago in two contexts. It arose (1) when Social Security took some unpopular steps regarding the law licenses of ALJs (a long story with many concerns not related to this thread) and (2) regarding Social Security evidence rules and the advocacy, attorney-client and work-product privileges of private attorneys representing claimants.

In both contexts, the agency's view of the Supremacy Clause as allowing regulation to trump bar ethics rules prevailed - in the view of every expert that I have seen address the question.

[upperwolfjaw]

I must admit, however, that my first reaction to those debates was "what, you must be kidding, of course state bar ethics rules still apply!"

But, repeatedly the answer turns out to be that Social Security may regulate in a manner that directly conflicts with a bar ethics rule, and in turn the ethics rule is trumped.

The legal theory behind this application of the Supremacy Clause is so well-settled that you don't even see litigation concerning the new All Evidence regulations, although they explicitly require private-practice lawyers to violate state bar ethics rules. For those in the private bar who are careful, Retainer Agreements were quickly updated to include notice to the client that traditional expectations of privilege and jealous advocacy do not apply in the context of disability-claim-related evidence.

[funkyodar]

May 5, 2016 15:16:37 GMT -5 upperwolfjaw said:

, Retainer Agreements were quickly updated to include notice to the client that traditional expectations of privilege and jealous advocacy do not apply in the context of disability-claim-related evidence.

I believe you mean "zealous" advocacy, UWJ, ole boy. "Jealous" advocacy is quite another issue....

[gary]

May 5, 2016 15:32:24 GMT -5 funkyodar said:

May 5, 2016 15:16:37 GMT -5 upperwolfjaw said:

, Retainer Agreements were quickly updated to include notice to the client that traditional expectations of privilege and jealous advocacy do not apply in the context of disability-claim-related evidence.

I believe you mean "zealous" advocacy, UWJ, ole boy. "Jealous" advocacy is quite another issue....

Isn't the latter divorce law?

[upperwolfjaw]

liquid lunch!

[unlisted]

I don't understand how the All Evidence rule poses an ethics problem. It's just a substantive requirement for bringing a claim. Ultimately it's not the attorney who has to disclose all medical evidence - it's the claimant (since the claimant has to disclose it even if he's unrepresented). If the claimant has stuff he doesn't want to disclose, he can withdraw his claim. He just can't lie on the record, by representing that he's disclosed everything when he hasn't. But that's the same situation as any attorney faces, in any litigation, when a client tells her that he intends to lie on the record, or asks the attorney to file something which the attorney knows to be incomplete or false. The safe ethical choice is to withdraw from representation, if the client can't be persuaded to reconsider. Or am I missing something?

[upperwolfjaw]

You have many complicated issues merged together there. I will try to split them up a bit:

(1) in theory (SC admin/con law from the 1970s) an SSI claim is compelled, while a Title II claim is not; so any argument that solves a problem by "the claimant can just give up the claim" fails, in theory, for any claim involving SSI (the SC held in many key 1970s cases that a claimant has no real freedom of choice - get SSI or be homeless, get SSI or die in the street - aka gun to the head) - that's why some of the rules are different for SSI, at least that is the origin of the differences in the case law history. "He can just withdraw his claim" = "he can just plead guilty" = "if he doesn't want to be discriminated against, he can just move" - it doesn't fly in most legal contexts, and also not in the SSI context;

(2) the regulation applies equally to the claimant and the representative;

(3) the All Evidence regulations require an attorney to submit work-product evidence, as defined by many state bar ethics rules (many of which are more broad than SSA's definition) - this is acknowledged by SSA in the intro to the regs, but the comments were "not adopted";

(4) the All Evidence regulations require an attorney to violate attorney-client privilege - again, by submitting "relates" evidence that many state bar ethics rules would consider privileged communication, with SSA using a different definition and comments "not adopted";

(5) The All Evidence regulations require an attorney to submit evidence and make statements that are either contrary to the interests of the client or directly conflicting with instructions from a client - again, acknowledged by SSA as in conflict with some state bar rules but comments "not adopted;"

(6) This isn't about testimony in the hearing, where I don't think anyone has raised serious state-bar ethics issues related to the All Evidence regs;

Now, much of this can be reconciled by early, clear and careful communication. If a client consents to the scope of the representation including such things - very limited privilege, no zealous advocacy, essentially agreeing to compliance with federal regs and not those state ethics rules - then the federal regulations and the ethics rules can come back into agreement. But, the interesting point is that Social Security does not need to care about state ethics rules, because a federal regulation trumps. In some states, it never was an issue because those states had catch-all ethics rules confirming that any federal law trumps any ethics rule.

If interested, I suggest reading the comment responses issued by SSA for the regulation (cited above). Also, Prof. Rains put together a good webinar on some of these questions:
nosscr.org/content/webinar-ethics-evidence-submissions

[upperwolfjaw]

I'll back away from this discussion now, as I think it is getting too deep into the weeds and off the topic of ALJ hiring. Interesting stuff, though, for odd folks like me. I appreciate it!

[ijq]

May 5, 2016 18:42:45 GMT -5 ijq said:

May 5, 2016 11:15:11 GMT -5 cowboy said:

The Constitution provides the right to counsel, but only when the person is facing criminal liability. A claimant is entitled to bring a representative (attorney or non-attorney), but can waive a representative. One will not be appointed for them at the hearing. I had to explain that more than once. There are no "ineffective assistance of counsel" claims in civil or administrative proceedings. That's also only for criminal cases, but at times I think those rules need to be strengthened.

IAC does apply in immigration law...See Matter of Lozada. There are admin proccedings where IAC applies. Theremedy in immigration is that the respondent can file a motion to reopen and if granted can have another hearing.