I received this e-mail message from Social Security today:
SSA Attorneys and Representatives:We would like to inform you that we are scheduling telephonic hearings only through the month of August due to COVID-19 related concerns. Furthermore, our schedulers will now need confirmation first if a claimant (or their representative acting on his/her behalf) voluntarily accepts a telephone hearing before scheduling and releasing any notice of hearing for the months of July and August.For this reason, we highly recommend that representatives check their ERE status report for any cases currently scheduled in July, as well as cases in “ready to schedule” status, and begin confirming as soon as possible with your claimants whether they voluntarily accept a telephonic hearing. Please know that our schedulers are currently contacting your offices primarily by telephone in order to confirm whether the claimant voluntarily accepts a telephonic hearing and to schedule the cases for hearing. Therefore, knowing this information beforehand will assist with a more expeditious and efficient scheduling experience when we contact your office. At the bottom of this email are ERE status report instructions for any firms that are new on our mailing list. We also have a representative ERE/ARS guide that we can furnish upon request.Likewise, our schedulers will also need confirmation if your claimant decides instead they decline a telephonic hearing so that we may proceed with postponing their case if it was previously scheduled for July, and/or refrain from scheduling their case for August, or until in-person hearings resume.In the alternative, we are also accepting “blanket” declinations or acceptances from SSA attorneys and representatives, should this be an option you voluntarily wish to consider.We are also working on alternative ways of communicating and submitting information for these purposes. As we receive additional scheduling updates that affect Georgia and North Carolina offices, we will forward them to the representative community.Pease (sic) note that our unit was under a “freeze” from all scheduling activities until recently. Accordingly, we are still working on updating and responding to emails previously sent to our representative box. Furthermore, please be advised that our unit is only handling confirming telephonic hearings for cases previously scheduled in July and/or “ready to schedule” cases that we can potentially schedule for the August docket. All matters for cases scheduled from April through June are being handled by the local hearing office at this time. ...
23 comments:
Do you know if thier scheduling ce exams yet ?
I find the fact that "we are also accepting “blanket” declinations or acceptances from SSA attorneys and representatives, should this be an option you voluntarily wish to consider" appalling.
Representatives have an obligation in every case to discuss this issue with the individual client as it is the client's claim and therefore their decision to make after considering advice from counsel.
Was this from your local OHO? RCALJ?
Lansing Michigan OHO has begun scheduling in person hearings, to resume in late June.
11:24... what's the appalling part, that SSA offered it or that there will be reps that make blanket selections?
11:24, I could imagine a blanket refusal if the rep had a hearing impairment or technological problem that made phone hearings impossible...but in that case some of the clients would probably want to fire that lawyer and go it alone or find a new rep.
Blanket acceptance or refusal could work if the person has a small number of clients and they all have the same opinion. There are reps who may only have a couple of hearings a month (especially if they do other types of law). If all six of your clients who are ready to schedule are willing to do phone hearings, why not submit one letter saying so? Then if more cases switch to RTS you could talk to them.
@ 8:45, Gov. Whitmer is propising an additional 30 days of lockdown. Daycares are not yet allowed to open for those who need it.
ALJ, attorney, claimant and VHR or Legal Assistant in one small hearing room. Masks required indoors in public places. All participants removing masks in the confined hearing rooms to be recorded so there is clear communication.
And of course, plenty of masks/gloves for all concerned. Including those who arrive without it?
It’s appalling that OHO asked because they knew there would be reps who wouldn’t bother consulting with their clients.
Would be nice if this was shared with the hearing offices.
@8:45: we're also in Michigan. We're getting phone hearings scheduled at all OHOs thru August now with no indications of a switch to in-person hearings.
We're a high volume practice and we're giving blanket acceptances for all phone hearings. We feel it's in our clients' and attorneys' best interests to do phone hearings in this environment. As 12:02 says above, we're still in a shelter at home order thru 5/15 which is likely going to be extended. Michigan, and metro Detroit in particular where most of our clients live, has been a hot spot. Even after the order is lifted, having all participants of a hearing in one small room isn't safe. Plus, our clients don't want to have to wait months longer to have their hearings if they're adjourned for in-person hearings. They need their disability payments now. Lastly, as a law firm, going months without hearings would put a serious crimp in our cash flow and ability to function.
So far, we haven't had many issues with our phone hearings. And the early returns indicate that pay rates haven't significantly changed. I believe phone hearings will be the new normal at least through the fall and possibly longer.
@10:03 AM. I am interested if your firm is advising your clients as to their right to request a postponement or if are you just telling them their hearing is now by phone (because you know what is in their best interests)?
@10:03 AM. You are playing with fire. It only takes one of those clients to find out later, after an unfavorable, that they could have chosen to postpone and wait before a bar complaint. The rules of ethics are pretty clear you cannot decide these type of things without your client's consent.
See Rule 1.2 (a lawyer shall abide by a client's decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued), see also Rule 1.4, n. 3 and 5.
@10:03,
I'm also an attorney at a high volume, nationwide firm. I won't give approval to a phone hearing without either me or my staff getting approval. We explain probable wait times. All of my client opted for video hearings, but other attorneys in my firm had clients who wanted in person hearings. If you lose and the client blames you, you don't want them complaining to the state bar or OGC and saying you accepted a phone hearing without consulting them. Plus, many judges in my region (OH, WV) ask at the beginning of the hearing if counsel discussed this with them. I don't blanket accept or decline anything like that without discussing with the client.
Ohio Rule of Professional Conduct 1.2A states the following (and most states have similar language):
(a) Subject to divisions (c), (d), and (e) of this rule, a lawyer shall abide by a client’s decisions concerning the objectives of representation and, as required by Rule 1.4, shall consult with the client as to the means by which they are to be pursued. A lawyer may take action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer does not violate this rule by acceding to requests of opposing counsel that do not prejudice the rights of the client, being punctual in fulfilling all professional commitments, avoiding offensive tactics, and treating with courtesy and consideration all persons involved in the legal process. A lawyer shall abide by a client’s decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client’s decision as to a plea to be entered, whether to waive a jury trial, and whether the client will testify.
Who sent this? I'm in Ohio and didn't receive any such notice. Is this for a specific hearing office or region, or is this an official agency-wide policy?
This is 10:03 checking back. Sorry if I wasn't clear. We're taking all scheduled hearings as phone hearings. That's what I meant by having a blanket acceptance. But we do call each client once the hearing is scheduled to discuss their options. We recommend keeping the phone hearing, but do explain that an in person hearing can be requested instead that will occur at some unknown later date. A few clients have insisted on in person hearings, but the vast majority of our clients have agreed with our recommendation and accepted the phone hearings.
@12:20 PM and 12:44 PM
Bold statements from both of you. I think if you'd both read and think about the rules you're referencing a bit more carefully, you'd quickly realize they really don't support the claims you're making.
Granted, I might feel somewhat differently if there were any real evidence that holding the hearing by telephone has any significant impact on the odds of prevailing. But such evidence doesn't seem to exist. And even if that were the case, I'd bet any state bar would laugh away any complaint premised on an attorney's decision to accede to a telephone hearing, particularly given the adverse consequences (delay, risk of potential infection and death) of stubbornly insisting on an in-person or video hearing.
@1:20 PM Why even give a client an opportunity to file a complaint, which will cost you time and money to defend, when you can simply spend a few minutes talking with them to discuss a phone hearing and why you favor it.
@12:20 - the issue isn't whether there is a material difference in win rates. The complaint would be based on an attorney's duty to inform their client of their options and letting them decide. Whether to hold a hearing in-person or by phone is not a "trial strategy" and I suspect most state bar associations would consider at least giving your client a call and letting them know the option for an in-person hearing requirement under diligence and communication rules. And, as @1:20PM notes, why even risk having to defend bar complaints when a three minute call would CYA.
I posted earlier about OHO Lansing having scheduled in person hearings with me for late June and early July. A few minutes ago I received a call notifying me that those hearings are being reset as telephone hearings subject to approval or the client. I decline all telephone hearings. I have been doing this business successfully for 45 years and I have absolutely no doubt that a telephone hearing is inferior to an in person hearing. Attorneys should not recommend telephone hearings to clients. All of my clients ask for my opinion and all agree with my recommendation: wait until OHO is prepared to schedule in person hearings again. If in person hearings remain unavailable after the end of summer, and only telephone hearings are being offered, then the matter can be revisited with clients.
@1:20 here.
If people want to consult with their client before deciding whether to proceed with a telephone hearing, I really don't see a significant problem with that. But for those who don't have time to consult with their clients first, I think it's grossly irresponsible to issue blanket declinations, thereby subjecting their clients to needless delays. Personally, though, I think that these sorts of decisions are exactly the sort of judgement a client expects their attorney to make on their behalf. If you're scared to make this sort decision without first nagging your client to "cya," then I think your value as an attorney is pretty questionable. This isn't "trial strategy." It's even less consequential than that. I'd never ask my client whether its okay to e-file a motion rather than file it by paper. Nor would I even bug my client to ask whether its okay to request a ruling on a pre-trial motion based on the papers rather than demand a full oral hearing, or whether its okay to depose a witness without recording their deposition on video. A major reason people hire attorneys is so they can get on with their lives without having to worry about all that noise, knowing that their attorney will exercise her best judgment on their behalf.
And for those who are convinced telephone hearings are inferior and more likely to result in a denial, I'm simply saying that this conviction is born out by the reality. As a result, I think clients, most of whom are impoverished by the time a hearing is being scheduled, are getting lousy advice when advised to continue waiting for months based on unsupported assumptions about telephonic hearings.
Just my opinion, obviously.
The forum for a hearing, live versus in person, isn't going to turn a good case bad or vice versa. This is not your local office with the kindly judges having its file reassigned to Chicago NHC and thus you blanket-decline all video hearings. Claimants and experts will still testify the same way, and it's gonna be the same judge on the other end of the line.
The phone even benefits claimants, as now you don't have to worry about someone ruining their credibility by walking in with a prop cane or walker which the record shows they clearly don't need.
I'm ok with phone, unless there's a strategic delay in waiting out a 70% denial ALJ who's retiring in four months.
Stating my opinion above that in-person hearings are superior to telephone (or video) hearings, is based upon actual results of my experience representing disability claimants for the past 45 years. I have no doubt whatsoever that providing the judge and client with the opportunity to see, to speak with, and to observe visually the other's participation in the hearing benefits the client. There is no substitute for direct face to face experiences. As stated in another comment above, the client expects her or his attorney to make the decision whether to decline or to accept the offer to schedule a telephone hearing. If, however, a reader of this blog has reliable data that indicates there is no advantage to an in-person hearing compared to a telephone hearing, please share that information with us.
@4:09, it depends on the judge obviously. If your experience leads you to find that in-person hearings benefits your clients and is advantageous, then your position is the right advice for your clients.
I'm not entirely sure, but I believe my award rate is higher since we've gone to phone hearings. It's not substantially higher from 45% to 65% or something, but it is higher overall so far. Some of that may simply be the result of selectivity by reps in that someone of advanced age is likelier to proceed on the hopes of gridding or simply going forward with their stronger cases, but I can't say that for sure. I'm not making that decision or doing that analysis.
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