Non-attorneys, Law Firms and Reg 10773

Saturday, May 24, 2003 | 0

While attorneys may use non-attorney members of their firm to represent clients before the California Workers' Compensation Appeals Board (WCAB), particular attention needs to be paid to recently added Title 8, CCR, section 10773. Added 1/1/03, 10773 places restrictions and duties on attorneys to ensure that non-attorneys are properly supervised, and that the clients understand that the person appearing for them is not an attorney.

Traditionally, nonattorneys have been permitted to participate in workers' compensation proceedings. (See 99 Cents Only Stores v. WCAB, 80 Cal App 4th 644 (5/03/00).) Labor Code section 5501 allows an application conferring jurisdiction to be filed by any party, attorney, or other representative as long as the nonattorney is authorized in writing and so notifies the WCAB. LC Section 5700 in part provides, 'Either party may be present at any hearing, in person, by attorney, or by any other agent....' What is curious is that the restrictions set forth in regulation section 10773 are applicable to attorneys only - there is no reference to restrictions on hearing representatives that are not associated with a law firm. Subsection (a) specifically states:

"Law firm employees not holding current active membership in the State Bar may appear on behalf of the law firm if..." [emphasis added].

Case law or regulatory amendment will need to dictate whether restrictions are applicable, for instance, to lien representative firms, and whether disclosures need to be made to physician lien claimants as to the representative's legal status. For purposes of this discussion we are going to assume that the rule means what it says - 'law firm employees', not hearing representatives that are not associated with a law firm. The fact that the rule is directed to law firms makes it imperative that those licensed to practice law in the State of California adhere to this rule.

The gravaman of the rule is notice to the client that the person representing them is not a lawyer. While the technical aspects of the rule are intended to give guidance towards this goal, the overall theme is letting the client know that their representative does not posses a California State Bar card.

Subsection (a) requires that the client be "fully informed" that the representative is "not a current active member of the State Bar of California", that the representative is identified, and that the supervising attorney be identified.

One curious provision of the rule, that will require further elucidation by the courts is application of this rule to "all documents the person has prepared". A search of the California State Bar ethics opinions did not turn up any opinions on this issue. The presumption would be that this requirement would be relative to substantive documents affecting the client's case, such as settlement documents or other documents affecting the client's legal rights. But the black letter of the regulation would make it applicable to all documents generated by a non-attorney such as a legal secretary preparing a medical examination notice, or a paralegal's letter to the client explaining what a Mandatory Settlement Conference is and why it is important to the client's case. While perhaps overkill, better practice at the present is to ensure that all documentation coming out of a law office prepared by a non-attorney include a disclosure similar to the following: "This document prepared by XX, who is not licensed to practice law in the State of CA."

Of particular import is subsection (b):

"A workers' compensation judge shall not approve any compromise and release agreement or stipulations with request for award signed by a law firm employee who is not currently an active member of the State Bar of California without the specific written authorization of the attorney directly responsible for supervising the law firm employee."

At the California DWC Educational Conference this past March, Anaheim WCJ, Janet Coulter warned attorneys of the applicability of 10773, and that its technical provisions would be in particular be enforced against applicant firms. However, it is not necessary for defense firms to file a letter on every single case before the particular Board venue that a non-attorney will appear on; a single letter single letter of authorization advising of the representative's authority regarding all files of the defense client is sufficient.

Applicant firms on the other hand must file a letter on each and every single case as proof that the injured worker is aware of the representative's status.