Sunday, July 1, 2018

The Debate in N.Y. Over Law Students Appearing in Workers’ Compensation Cases

The New York Workers’ Compensation Board has proposed a rule that would permit “law school graduates and senior law students” to represent any party in interest before the workers’ compensation board “only in those type of matters that have been authorized by the Board and set forth in the approved program . . .”

“Such law interns may, under the general supervision of an attorney, file forms, [and] make applications as required, fully participate in informal adjudicatory proceedings, prepare and enter stipulations other than waiver agreements, [and] appear at hearings before Workers' Compensation Law judges in noncontroverted claims or at such hearings, other than trial hearings, in controverted claims, and prepare and file applications for administrative review and full board review, and rebuttals, as necessary. Such law interns may, under the immediate supervision of an attorney, appear before Workers' Compensation Law judges at trial hearings in controverted claims and at all hearings before board panels, and prepare and enter waiver agreements.”

Some claimants’ attorneys are pretty upset about the proposal. But the Board argues that “such amendments are necessary to decrease the total number of unrepresented claimants appearing in Board proceedings, particularly where no indemnity benefits are sought and the only issue is entitlement to medical treatment. Upon review of current internal records, the Board finds that, in 2016, there were 247 unrepresented claimants with cases pending before the Board, in which the claimant did not seek indemnity benefits.  This number is largely consistent with past years; in 2014 there were 229 such claimants and in 2015 there were 302.  It is the Board’s position that the legal assistance provided by a law school or legal intern will help many of these unrepresented claimants navigate the workers’ compensation law and the adversarial hearing process."

Claimants’ counsel very rightly argue that a law student (or law school graduate -which I assume to mean a recently graduated law student who is not yet gainfully employed or is working pro bono) could not possibly represent an injured worker as ably as experienced counsel. Claimants’ counsel also argue that the real solution is to provide adequate attorneys’ fees for all classes of workers’ compensation cases, and I agree.

As a law professor who practiced law for 11 years (workers’ compensation in Maine and labor law with the federal government), interned with the Massachusetts Department of Industrial Accidents during the second and third years of law school, and handled five SSDI cases before Federal ALJs during the third year of law school, I have a unique perspective on the issue.

Law students face an incredibly difficult job market and law schools are doing everything in their power to gain in-school experiential opportunities for their students. As a workers’ compensation law professor, I would be thrilled for my students to have in-school workers’ compensation experiential opportunities. Students would benefit from the experience generally, and might become attracted longer-term to the practice of workers’ compensation law, an interest I unashamedly try to instill in them.

It is true that law students will not be prepared to take on the most complex cases, and I would suggest that the New York Board be very explicit about defining the types of cases to which law students should not be assigned. Without even thinking too hard about it, one could come up with excludable categories involving multiple carriers on the risk, and cases involving significantly conflicting medical evidence in arcane medical areas. (Obviously, very simple cases do not go to hearing in the first place). But all of this could be managed with reasonably skilled supervision and teaching. I would strongly suggest that the Board stay in close contact with law school clinical instructors, who perform equally delicate balancing acts in areas of law that are (I say respectfully) just as complex as (or more complex than) workers’ compensation. In my law school, for example, we have clinics and practicums in Estate Planning, Trial Practice, Energy Law, International Human Rights/Immigration, Family and Child Legal Advocacy, Criminal Defense and Prosecution Assistance, and Civil Legal Services. Virtually all the students in these law school clinics and practicums have live-client contact or appear before courts and administrative agencies (many have argued before our state supreme court).  And I will note in passing that most folks know that third year medical school students engage in live-patient intern practice.  

Of course, I think attorneys’ fees should be available to practicing attorneys for many, if not all, the kinds of cases that would likely be assigned to students under the rule. And there is no doubt a real risk that state legislators might become too comfortable with the idea of unpaid legal labor once they saw it. But there is a relatively simple partial solution to that problem – the Board should establish with law schools externship (not internship) programs that would both pay students a competitive hourly wage (in comparison with other types of law school work) and simultaneously earn them law school credit. That could create some real goodwill between law students and practicing lawyers. The American Bar Association approved these kinds of paid externships in August 2016 and many law schools have adopted these programs.

As a former nine-year administrative agency lawyer (with the NLRB), I also understand that administrative officials frequently have very little control over what legislators do. At the end of the day, the official is faced with the stark reality that (apparently) hundreds of claimants go without representation. Is it any wonder that administrators would attempt to fix the problem with whatever resources they possess? I would not want to deny an injured worker some representation in what all agree can be a tangled mess of a system. One must be guided here by a higher moral compass.  

One caveat – I do not like the application of the program to “law school graduates” (which appears to be part of the rule).  I am not sure what the phrase means. One hopes the “graduates” will have passed the Bar exam since, unlike the case with students, there is no cap on the duration of such a hire. But in any event, opening such a program to that class of participant really does hint at a shadowy unbounded servitude inappropriately (in my view) sponsored by the state. I would have to know a lot more before I could agree it was a good idea.

Michael C. Duff

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