Being Professional

The practice of workers' compensation law is relatively relaxed, at least in California, but I suspect the same in most of the rest of the country where it is an administrative system.

That's what attracted me to the practice in the first place nearly 30 years ago. Collegiality, informality - the emphasis was on substance over form, and the primary mission of the practice - delivering benefits to those entitled and discriminating against those not so entitled - took the forefront over everything else.

But relaxed doesn't mean sloppy, and does requires a higher level of self-discipline.

Unfortunately, too many people don't have the discipline to be let loose in an informal, relaxed legal system. Too many need more concrete barriers, more defined lines; perhaps because these folks lack the integrity or control to handle the responsibility that comes with such an insouciant practice.

Or perhaps these folks are, themselves, just sloppy and inconsiderate of the rules.

Rules - these are in place to make sure that everyone is playing on the same field, to keep anyone from having an unfair procedural advantage, and also to put checks and balances on the costs associated with litigation from the institutional perspective.

The California Workers' Compensation Appeals Board collected almost $300,000 in sanctions last year − three times the amount collected in 2012.

The WCAB had been warning that it was going to be tougher on the sloppy practice of workers' compensation law, whether you're an attorney or a hearing representative (in California work comp law one not need to be an attorney to appear before the WCAB, though there are some restrictions and limitations).

While the California Labor Code limits the WCAB to imposing sanctions of no more than $2,500, it can also assess attorney fees and costs on top of a sanction, so a $2,500 sanction can wind up costing much more. 

What's more, California's Business and Professions Code requires attorneys who are sanctioned more than $1,000 to report the sanction to the State Bar (not applicable to hearing representatives since there is no license involved, though the right to appear can be revoked by the WCAB).

Common infractions include citing evidence that's not in the record, citing unpublished cases, attaching documents to petitions for reconsideration, filing frivolous motions and misleading the board by concealment, half truths, or false statements.

And this misconduct sweeps the range of representation - defense attorneys, applicant attorneys, lien claimant representatives, and others.

A definition of "professional" is "a person who is expert at his or her work." A part of expertise in the law is knowing the rules and abiding by them. After all, if a lawyer can not play by the rules, then how can the rest of society be expected to?

It's not about compromising zealous representation. 

It IS about representation with RESPECT for the system and its participants, because without either there is anarchy and you may as well just hide that license in the drawer. Anarchy will have nothing to do with lawyers - when nihilism rules there is no longer a system, no longer rules, no need for procedure, no respect for life, liberty or property.

It's too bad that the WCAB has to resort to such actions and that it can not stick to its primary mission of resolving disputes in claims for benefits, but if those appearing before it can not figure out professionalism, then hard lessons must be applied.

I'm glad to see the WCAB get firm with the degradation of legal practice. The Rules of Practice and Procedure were developed to ensure judicial efficiency, due process and equal protection. Failure to abide by the RPPs degrades the system. Whether the violation is negligent or intentional, the sloppy practice of law, even at the administrative level, should not be tolerated.

I hope the WCAB reports fewer sanction awards in the future, and not because of failure to enforce, but because of professional compliance and competency.

One of the reasons why the practice of workers' compensation law fails to gain the respect of other legal practitioners is the perception of sloppiness, well documented by the WCAB, which is the habitude of many - too many.

Clean it up folks. Take pride in your practice. Stay educated. Stay proficient. Don't abuse the license (or if you're a hearing representative, don't abuse the privilege).

Above all, zealously represent the interests of your client, applicant or defense, by demonstrating professionalism in the administration of workers' compensation benefits.