Important ethics opinions in North Carolina concerning Social Security cases. Ethics 98 Formal Ethics Opinion 1 January 15, 1999 Disclosure of Adverse Evidence in Social Security Disability Hearing Opinion rules that a lawyer representing a client in a Social Security disability hearing is not required to inform the administrative law judge of material adverse facts known to the lawyer. Inquiry: Attorney represents Client, a claimant for social security disability benefits. Attorney files a request for an administrative hearing before a Social Security administrative law judge (ALJ). Social Security hearings before an ALJ are considered non-adversarial because no one represent the Social Security Administration at the hearing. However, prior to the hearing, the Social Security Administration develops a written record which is before the ALJ at the time of the hearing. In addition, the ALJ has the authority to perform an independent investigation of the client’s claim. Prior to the hearing, Attorney writes to the claimant’s treating physician and asks for a letter stating the physician’s opinion about the claimant’s disability. In a responsive letter, the physician indicates that she believes that the claimant is not disabled. Does Attorney have to submit the adverse letter from the physician to the ALJ at the hearing? Opinion: No. Although it is a hallmark of good lawyering for an advocate to disclose adverse evidence and explain to the court why it should not be given weight, generally an advocate is not required to present facts adverse to his or her client. The North Carolina State Bar 2005 Lawyer’s Handbook, p. 259. RPC 230 July 26, 1996 Editor’s Note: Compare Rule 3.3(d). See also 98 Formal Ethics Opinion 1 for additional guidance. Disclosures of Adverse Medical Reports in a Social Security Disability Case Opinion rules that a lawyer representing a client on a good faith claim for social security disability benefits may withhold evidence of an adverse medical report in a hearing before an administrative law judge if not required by law or court order to produce such evidence. Inquiry #1: Attorney represents Client L, a claimant for social security disability benefits. Attorney files a request for an administrative hearing before a Social Security Administration administrative law judge (“ALJ”). In administrative hearings before an ALJ, no one advocates or presents evidence in opposition to the claimant’s case. Attorney previously represented Client L on his claim for workers’ compensation benefits. During the workers’ compensation case, the workers’ compensation carrier required Client L to submit to an independent medical examination. The report of the physician performing the examination states that there is little wrong with Client L and he is a malingerer. Attorney considers this report biased and unfair. At the administrative hearing, Attorney submits other medical records for Client L, and withholds the adverse report from the workers’ compensation case. Is this ethical? Opinion #1: Yes, provided there is no law or court order mandating disclosure and further provided Attorney is advancing Client L’s claim in good faith. The Social Security Independence and Program Improvements Act of 1994, Pub. L. No. 103-296, Sect. 206, 108 Stat. 1546, 1509-16 (1994) provides, in pertinent part: (a)(1) Any person…who makes, or causes to be made, a statement or representation of a material fact for use in determining any initial or continuing right to or the amount of (A) monthly insurance benefits under title II, or (B) benefits or payments under title XVI, that the person knows or should know is false or misleading or knows or should know omits a material fact or makes such a statement with knowing disregard for the truth shall be subject to, in addition to any other penalties that may be prescribed by law, a civil money penalty of not more than $5,000 for each such statement or presentation…. The statute defines “a material fact” as follows: (2) For purposes of this section, a material fact is one which the secretary may consider in evaluating whether an application is entitled to benefits under title II or eligible for benefits or payments under title XVI. Whether the law requires disclosure of adverse medical opinions or medical reports generated in an unrelated adversarial proceeding is the subject of controversy. See Robert E. Raines, “The Advocate’s Conflicting Obligations Vis-à-vis Adverse Medical Evidence in Social Security Proceedings.” 1995 B.Y.U.I.L. Rev. 99, 133-134. However, if a lawyer reasonably believes that this law or a court order requires the production of such evidence, the lawyer should comply with the law or court order. In so doing, the lawyer is not violating the duty of confidentiality. See Rule 4(c)(3) of the Rules to Professional Conduct. If the lawyer reasonably believes that there is no law or court order requiring production of the evidence, Rules 4 of the of Professional Conduct requires the lawyer to protect the confidential information of a client. Canon VII also requires the lawyer to represent the client zealously within the bounds of the law. In litigation, a conflict may arise between these duties and a lawyer’s duty of candor to the court. See, comment to Rule 7.2. In general, there is no ethical duty to volunteer adverse evidence to a tribunal absent a law or court order requiring disclosure. The lawyer must present the evidence that best advances the client’s case and should not reveal confidential information if to do so would be detrimental to the client’s interest. Rule 4(c)(2). Nevertheless, a lawyer may not knowingly advance a claim, make a false statement of fact, use false evidence, or assist the client in illegal or fraudulent conduct. Rule 7.2(a)(2), (4), (5), and (8). In light of these conflicting obligations, the following position taken by the Committee on Professional Ethics of the New York Country Lawyers Associations in its decision of September 9, 1993, is sound: If a lawyer is able to advance a good faith claim for benefits despite knowledge of contrary medical reports, and if none of the evidence or statements made in support of that claim is known to be false in light of such knowledge, then nothing in the Code [of Professional Conduct] precludes assertion of the claim. If, however, the lawyer’s knowledge of the adverse medical information constitutes knowledge that the claim itself is false, then the lawyer is not free to advance the claim and must withdraw from the representation. Id. at 115 (quoting Comm. On Prof. Ethics of the N.Y. Country Lawyers’ Ass’n, New York Country Lawyers Ethics Opinion, N.Y.I.J., September 9, 1993, at 2). Thus, if Attorney is not knowingly advancing a false claim on behalf of Client L and Attorney reasonably believes that disclosure is not required by law or court order, he my represent Client L in the social security disability hearing without disclosing the adverse medical evidence. Inquiry #2: Attorney A represents a claimant for social security disability benefits. Attorney requests an administrative hearing. In the course of the representation, Attorney writes the claimant’s treating physician and asks for a letter stating the physician’s opinion about whether the claimant is disabled. In the responsive letter from the physician, the physician indicates that she believes the claimant is not disabled and should not be granted social security disability benefits. Attorney does not submit the adverse letter from the physician to the ALJ at the hearing. Is this unethical? Opinion #2: See Opinion #1. Inquiry #3: In the same situation as inquiry #2, Attorney requests from the treating physician a letter plus the treating physician’s office notes. The treating physician sends the office notes which merely describe the course of the claimant’s medical treatment. However, the physician also sends a letter stating her opinion that the claimant is not disabled. Attorney submits only the office notes to the ALJ and withholds the adverse letter. Is this conduct ethical? Opinion #3: See Opinion #1. Inquiry #4 Attorney has concluded that it would be a good litigation strategy to produce all relevant medical evidence at the administrative hearing on the claim for disability benefits of Client X. Attorney believes that if the adverse medical evidence is introduced, it can be explained and will not defeat Client X’s claim. If Attorney introduces and explains the evidence, it will avoid any perception that Attorney is hiding relevant evidence and will, thereby, increase the ALJ’s confidence in Attorney. It will also avoid the potential harm that might result if the ALJ learns of the evidence from another source. Is Attorney prohibited from introducing the adverse medical evidence? Opinion #4: No. The Rules of Professional Conduct do not prohibit a lawyer from presenting to the client the strategic advantage of disclosing adverse evidence and obtaining the client’s consent to disclose. Rule 4(c)(1). The North Carolina State Bar 2005 Lawyer’s Handbook, pp. 243-244 RULE 5.3 RESPONSIBILITIES REGARDING NONLAWYER ASSISTANTS With respect to a nonlawyer employed or retained by or associated with a lawyer: (a) a partner, and a lawyer who individually or together with other lawyers possesses comparable managerial authority in a law firm or organization shall make reasonable efforts to ensure that the firm or organization has in effect measures giving reasonable efforts to ensure that the firm or organization has in effect measures giving reasonable assurance that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer; (b) a lawyer having direct supervisory authority over the nonlawyer shall make reasonable efforts to ensure that the nonlawyer’s conduct is compatible with the professional obligations of the lawyer; and (c) a lawyer shall be responsible for conduct of such a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer if: (1) the lawyer orders or, with the knowledge of the specific conduct, ratifies the conduct involved; or (2) the lawyer is a partner or has comparable managerial authority in the law firm or organization in which the person is employed, or has direct supervisory authority over the nonlawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take reasonable remedial action to avoid the consequences. [Adopted July 24, 1997. Amended February 27, 2003.] Comment  Lawyers general employ assistants in their practice, including secretaries, investigators, law student interns, and paraprofessionals. Such assistants, whether employees or independent contractors, act for the lawyer in rendition of the lawyer’s professional services. A lawyer must give such assistants appropriate instruction and supervision concerning the ethical aspects of their employment, particularly regarding the obligation not to disclose information relating to representation of the client, and should be responsible for their work product. The measures employed in supervising nonlawyers should take account of the fact that they do not have legal training and are not subject to professional discipline.  Paragraph (a) requires lawyers with managerial authority within a law firm or organization to make reasonable efforts to establish internal policies and procedure designed to provide reasonable assurance that nonlawyers in the firm will act in a way compatible with the Rules of Professional Conduct. See Comment  to Rule 5.1. Paragraph (b) applies to lawyers who have supervisory authority over the work of a nonlawyer. Paragraph (c) specifies the circumstances in which a lawyer is responsible for conduct of a nonlawyer that would be a violation of the Rules of Professional Conduct if engaged in by a lawyer.  A lawyer who discovers that a nonlawyer has wrongfully misappropriated money from the lawyer’s trust account must inform the North Carolina State Bar pursuant to Rule 1.15-2(o). Rules of Professional Conduct, Ch. 2, Rule 5.4 (2006).
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