Claimant fraud and our duty/response?

[decadealj]

Thanx to Pixie for again setting the record straight as to what an ALJ can or cannot do. As for wanting to see the agency go after an ALJ before the MSPB for any reason- be advised this agency has tried to discipline ALJs on several occasions for just asking a rep to certify that the record was complete before setting a date for hearing. The last time I reported a rep for forging a fee agreement ( by signing a copy that had changed the date to evidence it was signed prior to the hearing- I had the original which had not been signed!) the complaint never get passed the regional chief. But sometimes there are ways- I once had a rep withdraw without my permission just prior to the hearing, literally abandoning the claimant. Of course I continued the hearing but not before informing him that although I was not supposed to report it to the state bar, it was an ethical violation that the claimant could certainly report to the bar. But as I initially reported, it is sometimes very painful to be a part of the lack of due process that is too often occasioned by the lip service SSA brags about "customer service". The spear that really holds us is the agency generated backlog (HPI and subsequent improvements too numerous to mention) hearings delayed are justice denied and we have to do the best we can with what we have and make sure we don't let some poor soul fall through the safety-net we are supposed to provide. To all you ALJ wannabes- its the greatest job in government but be prepared to have SSA management shove it down your throat a dime at a time.

[appellant]

SSA's rules of conduct for representatives can be found at 20 C.F.R. sections 404.1740, Rules of conduct and standards of responsibility for representatives; 404.1745, Violations of our requirements, rules, or standards; and 404.1750, Notice of charges against a representative.

Reports to a state bar association are permitted under the routine use exception to the Privacy Act (at least for OGC).

[jcse]

Pixie, I beg to differ with you. See 20 CFR 404.1745 et seq.

Decadealj, what legal authority are you relying on for your statement "but not before informing him that although I was not supposed to report it to the state bar"..I'm just curious, where in the statute, Hallex, code, does it say you are "not supposed to"??

Please, those of you who are elders on this board, don't make generalized statements without doing your research... for the sake of the up & coming ALJs who read these posts. The CFR is there..just because many of you have not read it lately does not mean it doesn't exist!

[decadealj]

The Deputy Commissioner......or his designee..... Penalty-we will remove your name from the list! Wow! What a reprimand!

[Pixie]

I know that those of you who have been dealing with real disciplinary rules and sanctions during your legal career find this topic alien to all that you understand and think you know.

You won't find anything in the cited regulations that allows the ALJ to report an attorney to disciplinary counsel or to report anyone to law enforcement. In fact the position of the agency is that the judge may NOT do so (there is a limited exception for requesting, through proper agency channels, a fraud investigation). To violate that rule is to subject one to discipline by the agency. It is immaterial that there is an exception for OGC. It does not apply to an ALJ.

It will be counter productive to bring state disciplinary counsel opinions to class with you, irrespective of how many different states have ruled on the subject. The agency requirement is that ALL disciplinary complaints must go through the agency chain of command, probably starting with the office chief judge. A judge may not report outside of the agency.

To Zero: No you wouldn't like to see the agency take a judge to the MSPB on the issue of reporting a crime to law enforcement, especially if you are that judge! Reporting a crime to law enforcement would be a violation of a direct order from the agency. Judges are periodically reminded of this agency rule, which is not in the regulations. An ALJ may only make a complaint to a higher command within the agency. To report conduct to the state bar or to a law enforcement agency would subject one to disciplinary action.

I'm not saying I agree with this rule, but I am saying that's the way "it is."

Now, I don't have any direct knowledge, but I have heard that most of the complaints are "lost" at region or beyond.

Yes, there are rules for the representatives, but these rules are seldom enforced and largely ignored, probably because they are seldom enforced. Most judges just don't bother with them anymore. They realize it is just one of those things over which they have no control. Pixie.

[decadealj]

Thanks again to Pixie. To those of you who don't know the extent of her familiarity with what goes on inside the crystal tower (ODARs palace)- you act at your peril. Well my car is fixed and its time to get back to work. Enjoyed the discussion.

[jcse]

"..these rules are seldom enforced and largely ignored, probably because they are seldom enforced. Most judges just don't bother with them anymore. They realize it is just one of those things over which they have no control. Pixie."

This is just another example of a generalized statement which is just not true! There are scores of ALJs who are strict about atty conduct and who enforce the regs., and who have gotten attys removed from practicing at SSA for unprofessional conduct. Not all regions are the same in how vigorously they pursue sanctions. But even if sanctions are "lost" at the regional level or beyond in some regions, is that a reason not to "bother with them" anymore? We should be sanctioning attys who forge fee agreements and who abandon claimants, regardless of how the Agency pursues it from there.

[morgullord]

If you want to get the attention of a miscreant representative or attorney, protest the fee agreement. I am not an ALJ but I have taken down some claimants' attorneys that way.

Create the paper trail first; the sanctioning will come in time...

[appellant]

Pixie, your point is well taken - particularly about complaints being lost or not acted upon, but I think we may see some movement toward enforcing the rules more aggressively. Perhaps ALJs will be given more freedom to report bad conduct if the Agency places more importance on requiring representatives to act ethically and actually represent their clients (I'm talking about the bad apples - not slamming representatives in general). Of course, I may be naive . . .

[privateatty]

This is fascinating. I found out that in both my states if I'm a federal ALJ, the Judicial Code of Ethics doesn't apply to me.

"By not applying the Code to justice of the peace, magistrate, court commissioner, and member of the administrative law judiciary."

"Anyone, whether or not a lawyer, who is an officer of the state court system performing
judicial functions,...."

And I guess, because I still don't know , if (I should be so lucky), by becoming an ALJ, I am no longer a lawyer. Sounds logical.

So I did a Lexis search on the reg cited by jscs (Thanks!) and lo and behold I find a case. Ezell v. Bowen, 849 F.2d 844 (4th Cir., 1988). An ALJ suspended the plaintiff (a non-lawyer) for five years. The AC modified it to a disqualification. (She had a felony conviction of two counts of filing false claims for job-related expenses. United States v. Ezell, No. 83-107-A (E.D. Va. September 8, 1983)--and was dismissed from government service)).
.
So one can conclude that the Secretary will only pursue an egregious case. Interestingly, she argued that she had done nothing to warrant the suspension in relation to representing claimants...

[Pixie]

JCSE: After you have been with the agency for 10 years or so, let's revisit your thoughts on this topic. Also I would be interested in hearing about the "scores" of ALJs who "enforce the regs" and get representatives removed. Please let me know which regs they enforce and exactly how they go about it. The regulations really don't require representatives to do much of anything. Your experience certainly seems to be different from the OHA/ODAR history I am familiar with. But, as one of our posters is fond of saying, "Your mileage may vary."

Secondly, ALJs don't have the authority to sanction ". . . attys who forge fee agreements and who abandon claimants, regardless of how the Agency pursues it from there." Only the agency has the authority to sanction a representative for misconduct. If the agency chooses to not ". . . pursue it from there," there is nothing the ALJ can do about it.

There has been discussion about an attorney "abandoning" his client shortly before the hearing. While this may be a violation of state ethical rules, there is no such corresponding agency rule, whether the attorney obtains permission from the ALJ or not. And the judge is prohibited by agency rule from disclosing this conduct to state disciplinary counsel.

Another example is that some state bar ethical rules require an attorney to disclose all evidence, even evidence that is unfavorable to his client, in an administrative hearing. The agency has no such rule. If an ALJ reports a failure to disclose to the agency, the agency position is that there is no requirement to disclose. And the judge is precluded by agency rule from reporting it to the bar association.

To Privateatty: Yes, that was an egregious situation that the agency took action on. It should be noted that the ALJ who heard the case was appointed by the agency to hear the disciplinary action brought by the agency against the representative. He was not an ALJ hearing a disability case who decided that the representative should be sanctioned. He would, of course, have no authority to proceed in that situation. His only recourse would be to report the matter to his chief judge.

There are a lot of windmills out there in ODARLand; carefully choose which, if any, need a good attacking. Pixie.

[decadealj]

Amen Pixie- I broke so many spears my first fifteen years as an ALJ, the armory wouldn't sell me any more! One heart attack and three angioplastys later my fellow ALJs, who all pull their loads while ensuring due process, have persuaded me my spears cannot disable the many windmills of which you speak. I only wish management would get out of the way (since they sure as heck can't lead or follow) and let us do our jobs. Peace be with you all!

[privateatty]

“Here we have been standing for a long long time
Treading trodden trails for a long long time

I find sometimes its easy to be myself
Sometimes I find better to be somebody else

So much to say, so much to say, so much to say, so much to say”
--Dave Matthews “So Much To Say”

Thanks Pixie. I liked this post a whole lot better than the prior one. So did the my good friends, my gut and the Disciplinary Counsel.

call me Mr. Windmill...

[pm]

Oddly enough Pixie, it appears you are tilting at your own windmills. You keep trying to help, but some people refuse to be helped.

Kudos for trying, but it appears to be a losing effort.

[jcse]

I never said anything about filing sanctions with a state bar.

I responded to your quotes:
"The SSA has no disciplinary rules or violations thereof"; then after being made aware that there are, you said oh, "these rules are seldom enforced and largely ignored..most judges just don't bother with them anymore.."(Pixie); This is misinformation. I don't care what your experience has been with ODAR, you shouldn't proffer your personal observations on this board as fact. Just because you have worked for ODAR for a long time and have observed that your judges don't apply these regs doesn't give you the right to tell potential ALJs that there are no disciplinary rules, or don't bother because they aren't enforced. If you want the numbers of ALJs who use the regs at 20 CFR 404.1740, 1745 et seq, contact the regions and request the data. And don't presume to know where people have worked or that you have more years of experience than them. I have worked on these cases and have seen attorneys removed from SSA's practice list (i.e., sanctioned). My experience is different from yours and is based on fact, so my point of view is equally valid.

[beentheredonethat]

Deaddisco, I hope you will remove your offensive post, as you have done in the past.

The debate between JCSE and Pixie, et al, is a valid one. Both sides bring valuable perspectives to the table. One group chooses to accept the agency's questionable interpretation of the rules. The other chooses to fight for what they think is the correct course of action. Every judge is expected to use his or her own judgment, not to defer to that of others. I applaud the people who choose to fight for what they think is right instead of adopting this go-along-to-get-along mentality.

There are legitimate factors supporting each position. A Dec Judgment is just what we need to bring clarity to this situation.

[deltajudge]

8-)Don't really know what all the argument is about. Pixie and decadealj are corrrect, all the ALJ can do is report supposed misconduct on the part of a rep. The agency has the obligation if investigating this, and taking whatever action necessary. Just like everything else, the ALJ is powerless to do anything.

[privateatty]

With all due respect, deltajudge, et, al., there are at least three things you can do:

1. Report the miscreant (thanks morgullord, a wonderful description) to his/her State Bar and let SSA's OGC file an action regarding which any decent lawyer can win and get fees. One would think the Union would happily defend the ALJ, but I absolutely know nothing about that.

2. File an action for declaratory relief (as has been suggested) with opinions from two State Disciplinary Counsel as Exhibits A and B. OGC going to win this one? Heck, I'll draft the Complaint and we all know someone who can file it.

3. Go the American Bar Association Journal, they'd eat it up. Maybe before you do that you'd have a chat with your HOCALJ...

4. Do nothing and file a FECA stress claim. Claim its aggravating your diabetes or whatever. The CE will eventually take notice.

I'll bet there are more suggestions out there...

BTW, no one has suggested that our State's Disciplinary Rules no longer apply to ALJs. And as I posted, they are NOT Judges under my State Rules...and of course, they must, for the most part, be in active practice status...

[decadealj]

jsce- your posts appear to express a concern about what other readers, perhaps applicants for an ALJ position, may think about the discussion on this topic. I have wondered for years why AALJ hasn't been at the forefront of this issue. We all creatures of our experience- I shared some of mine only to alert others from outside the agency (obviously I was one), that ODAR ain't DOJ or OGC. As Pixie and deltajudge have confirmed, outsiders need to know that it is very possible that the only control they will have over the hearing process as an ALJ is their signature on the decision- management controls everything in the office by terrorizing the staff. I know there are offices where the HOCALJ is in control but that is usually where the HOD is an attorney and ethical considerations apply. In others, the HOD responds only to the regional management official and " body count" reigns supreme.

[valkyrie]

I think everyone is also forgetting that individual state bars differ with regards to how aggressively they pursue such matters. You have to ask yourself how important it is to go through the trouble of charging the ODAR management windmill, when success will only result in the state bar assuring you that they will, "look into the matter." I have seen the reps in my on office report each other for ethical breaches, but I have never seen any significant action from the bar, even in some pretty egregious cases. I think that there is a two-fold reason for the lack of action. One, the SSA regs are very claimant-friendly with regard to forgiving procedural errors and accommodating the claimant. One of the primary Agency themes is supposed to be that the hearing process from cradle to grave is all about the claimant, with the ALJ and representative in supporting, non adversarial roles. There are few other adjudicatory domains with so much inherent protection for the claimant. The second, and more cynical reason for the lack of state bar attention is that we are talking about the decidedly un-sexy world of disability law. I think the overall perception of the legal community ranks disability law below both personal injury and workers comp.