Attorneys and representatives

• Pages: 963-1012
• Author: David L. Pollak,Roger A. Tolman, Jr.,Monika R. Reyes

ATTORNEYS,

REPRESENTATIVES

17-1

CHAPTER 17

ATTORNEYS AND REPRESENTATIVES

I. GENERAL POINTS

§17:00 Conduct During Appearances at WCAB District Offices

§17:01 “Non-Litigious” System

§17:02 Certified Specialists

§17:03 Fee Disclosure Statement

§17:04 Non-Attorney Representatives

§17:05 Unrepresented Parties

§17:06 Deposition of an Attorney

II. ATTORNEYS OF RECORD

§17:07 Proper Identification on Address Record

§17:08 Notice of Representation

§17:09 Dismissal/Substitution of Attorney/Representatives of Record

III. ATTORNEY FEES: FIXED BY BOARD

§17:10 Board Power to Set

§17:11 Fees in Excess of Board Approval Not Allowed

§17:12 Fee Agreements Must Be Submitted Within 10 Days for Approval

§17:13 Violation of Fee Rules

§17:14 Approval of Retainer Agreements Required

§17:15 Fee Reductions and Request for Increased Fees

§17:16 Lien Claim of Former Representatives

IV. ATTORNEY FEES: DETERMINATION OF AMOUNT

§17:20 Factors Considered in Setting Fees

§17:21 Guidelines Under the Board Rules and Policy and Procedural Manual

§17:22 Cases of Low Complexity

§17:23 Time Investment

§17:24 Sufficient Basis Required to Justify Fee

§17:25 Fee Based on Other Benefit Species

§17:26 Fee When Total Permanent Disability Awarded

§17:27 Interest on Attorney Fee Awards

§17:28 Overpayments

V. ATTORNEY FEES: MANNER OF ALLOWANCE

§17:40 Against Accrued Indemnity

§17:41 Commutation of Fee

§17:42 Defendant’s Failure to Withhold Fee

§17:43 Effect of Defendant’s Right to Credit on Attorney’s Fee

§17:44 Division of Fees Between Former and Current Attorneys

§17:45 Standing to Challenge Attorney Fees Awarded

ATTORNEYS,

REPRESENTATIVES

California Workers’ Compensation 17-2

VI. ALLOWANCE OF FEES AGAINST LIEN CLAIM RECOVERIES

§17:50 Equitable Principles

§17:51 Compare Where No “Common Fund” Recovery

§17:52 Compare Where Lien Claimant “Active” and Represented

§17:53 Attorney Fees From Lien Claims Settled by Compromise and Release

§17:54 No Fee Allowance When No Notice to Lien Claimant

§17:55 Attorney’s Fees for EDD Lien Recoveries

§17:56 No Separate Fees Awarded Against Lien Claimant

§17:57 Medi-Cal Liens

§17:58 Home Health Care Liens

VII. FEES: RIGHTS OF ATTORNEY AND CLIENT

§17:70 Attorney May Seek Review

§17:71 Applicant’s Entitlement to Notice

VIII. AWARD OF FEE

§17:80 Fee Usually Deducted as Lien Claim

§17:81 Fee Provision When Employer Files a Declaration of Readiness to Proceed to Contest QME or AME

§17:82 Fees for Discovery Following Ex Parte Communication with AME or QME

§17:83 Against Uninsured Employer

§17:84 Deposition Fee

§17:85 Upon Unsuccessful Petition for Reduction of Permanent Disability

§17:86 Upon Unsuccessful Petition to Terminate Temporary Disability

§17:87 Upon Unsuccessful Petition to Terminate Medical Award

§17:88 Upon Frivolous Petition for Appellate Review

§17:89 Where All Indemnity Paid Disregarding Attorney’s Fee

§17:90 Attorney Fees for Penalties

§17:91 Vocational Rehabilitation Evaluations

§17:92 Frivolous Bad Faith Actions or Tactics Intended to Cause Unnecessary Delay

§17:93 Reserved

§17:94 State FEHA Discrimination Civil Cases

§17:95 For Collection of Back Wages

§17:96 Private Attorney General Doctrine

§17:97 When Medical Provider Attempts to Collect Medical Fees Directly From an Employee

IX. DISCIPLINARY PROCEEDINGS: REMOVAL

§17:110 No Power Over Licensed Attorneys

§17:111 Removal of Non-Attorney Representatives and Disbarred Attorneys

§17:112 Grounds for Removal

X. CONTEMPT AND SANCTIONS

§17:120 Authority for Contempt

§17:121 Sanctions

§17:122 Failure to Appear and Tardiness

§17:123 Other Misconduct

§17:124 Sanctions Claims Rejected

§17:125 Contempt-Related Sanctions Under CCP

§17:126 Disqualification

FORMS (ON DIGITAL ACCESS ONLY)

17.1 Fee Disclosure Statement (DWC Form 3)

ATTORNEYS,

REPRESENTATIVES

17-3 Attorneys and Representatives §17:02

I. GENERAL POINTS

§17:00 Conduct During Appearances at WCAB District Offices

Because of the informality of workers’ compensation proceedings (as further discussed in §21:110), there appears to be

a misguided belief among some parties that appear before the various district oces that the worker ’s compensation district

oces are not “real” court, and they sometimes behave accordingly. However, attorneys and hearing representatives should be

mindful that the Division of Workers’ Compensation Policy and Procedural Manual 1.155 provides that pursuant to CCP §128(a):

Every court shall have the power to do all of the following:

(1) To preserve and enforce order in its immediate presence.

(2) To enforce order in the proceedings before it, or before a person or persons empowered to conduct a judicial

investigation under its authority.

(3) To provide for the orderly conduct of proceedings before it, or its ocers …”

To that end, the WCJ has the authority to require that all parties appearing in the courtroom be dressed appropriately

and conduct themselves properly for a courtroom setting. All attorney and non-attorney representatives shall be held to the

same professional standard. [See LC §4907.]

As noted in the manual, hearing representatives are expected to adhere to the same professional standards as an attorney.

Therefore, both attorneys and hearing representatives should inform themselves of a judge’s courtroom policy. Most judges

have signs posted in their respective courtrooms advising the parties of such courtroom procedures as cell phone usage etc.

and the parties are expected to heed these notices. The parties should also keep in mind that notices might not be posted

for conduct that is already expected of them such as professional courtesy. In fact, to remind attorneys of this professional

obligation, the California Supreme Court adopted rule 9.4 of the California Rules of Court which became eective May 23,

2014, as a supplement to the attorney oath for new lawyers. The oath now includes a statement that the attorney will strive

to conduct himself or herself with dignity, courtesy, and integrity. The Oath now reads in its entirety “I solemnly swear (or

arm) that I will support the Constitution of the United States and the Constitution of the State of California, and that I will

faithfully discharge the duties of an attorney and counselor at law to the best of my knowledge and ability. As an ocer of

the court, I will strive to conduct myself at all times with dignity, courtesy, and integrity.”

On May 10, 2018, the California Supreme Court issued an order approving new Rules of Professional Conduct for

attorneys, which went into eect November 1, 2018.

Unprofessional conduct may lend itself to contempt and sanctions as further detailed beginning with §17:120. In

addition, parties should be prepared on their cases and have working knowledge of the le during their appearances at the

district oces. Lack of preparedness can lead to unnecessary delays in the disposition of cases.

§17:01 “Non-Litigious” System

The California workers’ compensation system was originally designed to be non-litigious and more or less self-operating.

[For the system as a “self-operating” system, see Chapter 1.] In many respects, it has remained that way. In recent years, the

Legislature has made heroic eorts to make the system even less litigious. However, bona de disputes do arise in workers’

compensation cases, and in some areas (e.g., discovery and medical treatment issues) they have increased. Furthermore, the

factual and legal problems in compensation cases can become quite complex. Accordingly, most of the cases coming before

the Board, the parties are represented by attorneys.

§17:02 Certified Specialists

The State Bar of the State of California has recognized that the eld of workers’ compensation is of a suciently spe-

cialized nature to justify the institution of a specialization program. Upon appropriate qualication licensed attorneys may

be certied as specialists in the eld of workers’ compensation and represent that fact to the public.

The specialization program began over 15 years ago on a trial basis. As of August 13, 1983, the Board of Governors of the

State of California voted to make the program “permanent.” [11 CWCR 208 (1983).] As of May 20, 1985, the State Bar Permanent

Specialization Program was ocially approved and thus fully sanctioned by the California Supreme Court. [13 CWCR 97 (1985).]

Under the certication program, an applicant must demonstrate, within the ve years immediately preceding submission

of the written application:

(1) He or she has been substantially involved in the practice of workers’ compensation law in the following areas: (a)

pre-trial practice and procedures; (b) trial; (c) appellate; (d) medical; and (e) rating;

(2) Completion of 100 of any of the following in any combination: (a) participation in deposition of witnesses other

than physicians; (b) pre-trial conferences; and (c) petitions for removal;