I have received an anonymous report of an anonymous attorney ethics complaint filed with a state bar against some named attorneys who represent Social Security claimants in the employment of a non-attorney outfit. Representing clients as an attorney as an employee of a non-attorney is, in my understanding, itself a violation of attorney ethics rules. The complaint also alleges that the non-attorney group engages in practices which are considered unethical by attorneys. I will not give more details about an anonymous complaint.
The complaint is interesting but I think it would be investigated more thoroughly if had not been filed anonymously. I know that Social Security has told its Administrative Law Judges not to file ethics complaints against attorneys which could explain why this is being filed anonymously but there is a detail, which I'm not to reveal here, concerning the material I received which suggests that it was not filed by any Social Security employee.
There are many, many newly minted attorneys who are desperately seeking employment. I feel for them but if you are representing Social Security claimants in the employment of a non-attorney group, you had better think about your situation from a legal ethics point of view. This is from the North Carolina Rules of Professional Conduct, which has its counterparts in every other state:
A lawyer shall not practice with or in the form of a professional corporation or association authorized to practice law for a profit, if:(1) a nonlawyer owns any interest therein, except that a fiduciary representative of the estate of a lawyer may hold the stock or interest of the lawyer for a reasonable time during administration; or(2) a nonlawyer has the right to direct or control the professional judgment of a lawyer.
I think the ethics prohibition is stating that one cannot share ownership of a "professional corporation or association authorized to practice law for a profit" with non-lawyers.
ReplyDeleteI don't think that being an attorney for XYZ, LLC is a violation. I think that an attorney is forbidden to form a XZY, P.C. (or PLC, PLLC, etc) with a non-attorney. Otherwise it might be an ethics violation to be in-house counsel for any company or corporation.
A company with in-house counsel is not "a professional corporation or association authorized to practice law for a profit".
ReplyDeleteThe basis for this is that a lawyer's independent legal judgement could be clouded by a non attorney who has an ownership interest. There are also fee splitting issues where attorneys are forbidden from splitting fees with non-attorneys. The in-house counsel example is ok because they are not representing third parties like in a SSDI claim. I hope this is pursued because it is going on with a lot of non-attorney/attorney groups.
ReplyDeleteIt's amazing how threatened and defensive attorneys are by non-attorneys, that they would pursue and endorse this interpretation. I am an attorney with a non-attorney firm and my "independent legal judgment" is not "clouded by a non-attorney" with an ownership interest any more than our in-house counsel would be by that same ownership interest.
ReplyDeleteAnonymous 12:20 PM. While you may feel your independent legal judgement is not clouded, can you say the same regarding other ethical issues such as making claims that lawyers would be sanctioned for?
ReplyDeleteJust curious as to how you see the world from where you sit.
And when asked by an ALJ, are you appearing as an attorney when you attend a hearing or as a non-attorney rep?
Is you pay based on the outcome of the hearings you do or does your success and/or failure have no impact on the amount you are paid?
I am incented to win awards, just like every SS lawyer in practice in the US.
ReplyDeleteI appear as a non-attorney.
And my ethics do not change, ever. It's not like I walk in as a non-attorney and start lying.
But as a non-attorney you don't play by the same rules that we do. So stop calling yourself an attorney working for a non-attorney group. You are a non-attorney who happens to have a J.D.
ReplyDeleteAnon 12:20, continuing to refer to yourself as an attorney when in fact you are acting as a non-attorney would seem like treading on thin ethical ice.
ReplyDeleteCurious to know if you tell your clients you are an attorney?
Fine. Just for you, I am no longer referring to myself as an attorney. I wish I would have met you before enduring and wasting my time in law school. Also, I guess I'll stop paying my professional privilege tax and other licensure fees and when I get the call from the Bar saying I can no longer practice law, I'll hire a real lawyer like you to represent me.
ReplyDeleteSince you are doing me favors, can you do me one more? Start wearing a cool hat.
ReplyDeleteDrop the fees paid and the ESQs wont have a problem with non attorney reps. With no Workmans Comp to get 25% or more from, ESQs are getting hungry and taking anything, including $6000 SSDI claims. Guess you have to start your practice somewhere. For those interested in going to law school add psychology, you can get your Freudian Slip and Fall Degree.
ReplyDeleteIs an attorney rep appearing "as an attorney" in front of ODAR? Or is it just a matter of disclosure? If anyone can be a rep, why does it matter? Is it because only attorneys can get fees through an approved fee agreement?
ReplyDeleteGood luck ever getting SSA to take action against unethical reps. At the end of the day the concern is always about claimants who might not otherwise get representation.
The issues in part are whether they are engaging in the unauthorized practice of law or are committing violations of state bar ethics rules. It seems on the one hand they want to call themselves attorneys for things like fees but non-attorneys for dividing the fees and marketing. Then we get into the issue of giving legal advice on matters outside the disability claim realm. If they are non-attorneys then they better not be giving advice on any legal issues other than the claim or they are venturing into the unauthorized practice of law.
ReplyDelete"attorney ethics rules" boy there's an oxymoron if I ever heard one. LOL
ReplyDeleteI don't have a problem with non-attorneys. SSA allows non-attorneys to practice before the Agency and that's good enough for me. Obviously policing any ethics violations is an issue for SSA.
ReplyDeleteBut, the prohibition against an attorney working for a non attorney (or non-attorney LLC) in the practice of law is a perfectly reasonable regulation. If a non-attorney tells me how to practice law, the non-attorney is practicing law without a license. End of discussion.
The agency (like other agencies) says that non-attorney representatives are acceptable before ALJ's and AAJ's. State law has been pre-empted on this point.
ReplyDeleteThe real question is when an appeal is taken to US District Court from the Appeals Council.
As an attorney, I would like to see a resulting State Ethics Panel advisory opinion that clearly takes on this type of issue. Most of the time, ethics advisory opinions say very little when they get beyond the favorite topics -- trust fund dipping, unpaid taxes and criminal convictions, confidential information and conflicts of interest, missed filing dates, and (for the lucky few) sex with clients.
ReplyDeleteThe area of long term disability insurance "client representation" in claims before SSA is ripe for state ethics committee review (i.e., who is the client?).
Also, it would be fun to see a distant state ethics committee pull on the strings, where an ALJ has his/her law license,
to review his/her 'professional conduct' from the bench as a "judge" and as an "attorney", or at least start receiving and procession complaints for some of the outrageous in and outside of hearing activities of a few SSA employees with lifetime-appointments. ...