What is an Attorney? What is a Lawyer? Is there any difference? Injured Workers who are seeking representation to handle their workers’ compensation claims are often confused as to whether there are two different types of legal representatives. Further, Injured Workers are often confused as to what representative can be present on their behalf before he Workers’ Compensation Appeals Board.
This article will discuss Lawyers, Attorneys, and other Legal Representation before the Workers’ Compensation Appeals Board.
What Is a Legal Representative?
In California, a Legal Representative is a licensed member of the State Bar of California. The State Bar Website in fact uses the term “Attorney” and “Lawyer” interchangeably. In essence, there is no difference. Members of the State Bar hold themselves out as either being a lawyer or an attorney. Some use both terms. In sum, if you are looking for a legal representative, you are looking for a member of the State Bar.
What is the California State Bar?
Per the State Bar, it’s “mission is to protect the public and includes the primary functions of licensing, regulation and discipline of attorneys; the advancement of the ethical and competent practice of law; and support of efforts for greater access to, and inclusion in, the legal system.
The State Bar: Licenses attorneys and regulates the profession and practice of law in California, Enforces Rules of Professional Conduct for attorneys, Disciplines attorneys who violate rules and laws, Administers the California Bar Exam, Advances access to justice, Promotes diversity and inclusion in the legal system
Created by the Legislature in 1927, the State Bar is an arm of the California Supreme Court, protecting the public by licensing and regulating attorneys.
The State Bar licenses more than 250,000 attorneys, investigates approximately 16,000 complaints of attorney misconduct annually and distributes over $78 million in grants to legal aid organizations.”
How Does One Become a Member of the State Bar?
One becomes a member of the State Bar by having certain qualifications and taking and passing the California State Bar Examination. A person graduating law school and obtaining a law degree, Juris Doctor, J.D. is not a guarantee of being a State Bar Member. Many individuals who have J.D., degrees take and do not pass the examination. As a result, they cannot practice as a Lawyer/Attorney within the State of California. The Bar passage rate varies from year to year.
In California, the Bar passage rate is relatively low. For example, per the State Bar, the February 2020 General Bar Exam preliminary statistics reported that the passage rate was 38 percent for first-time applicants and 22 percent for repeat applicants.
For a Client, Is Active Membership in the State Bar Important?
Yes. An Attorney/Lawyer can only practice workers’ compensation law as an attorney if they are an “active” member of the State Bar. If a client wishes to check on an attorney’s status or whether they are a member, click here.
Attorneys can have various status. They can be active, on probation, suspended, inactive or disbarred.
Is There Non-Attorney Representation Before the Workers’ Compensation Appeals Board?
Yes and No. Non-Attorneys can provide representation before the WCAB. There must be a filing to the WCAB concerning this representation.
Per the Policy and Procedure Manual of the WCAB, Section 1.120 (2013 Revision), provide for “APPEARANCES In each case in which a law firm representing an injured worker appears by an employee not holding current active membership in the State Bar of California, pursuant to Rule 10773, the employee shall file at the time of his or her first appearance at the WCAB an original document that: 1. discloses to the board and to the applicant that he or she is not licensed to practice law in the State of California; 2. states the name of the attorney directly responsible for supervising the employee; 3. specifically states that the employee is authorized by the supervising attorney to sign settlement documents; and 4. is signed by the supervising attorney and the client.” [emphasis added]
Note: Even Defense Attorneys can have non-attorney representation before the WCAB, “In each case in which a law firm representing a defendant appears by an employee not holding current active membership in the State Bar of California, the employee shall file at the time of his or her first appearance at the WCAB a document that complies with the paragraph above, except that it need not be signed by the client.”
What About Settlement Documents, Can a Non-Attorney Representative Sign Them?
Yes. However, prior to the submission of the settlement documents for approval, the Law Firm is required to file the Non-Attorney Representative Notice.
Can a Non-Attorney Representative Get Paid from the Settlement Award or Order?
No. Pursuant to Labor Code Section 4903, no fee for legal services shall be awarded to any representative who is not an attorney.
What About Disbarred Attorneys, Can They Provide Representation?
No. Per the P & P Manual, “[a]n attorney who has been disbarred, suspended, declared involuntarily inactive by The State Bar, or who has resigned with charges pending before The State Bar, is not allowed to appear in any manner before the WCAB. (Rule 10779; In Re Roman Pellicer (2008), WCAB en banc, 73 Cal. Comp. Cases 1065.)”
Why Do Attorneys Use Hearing Representatives?
There are many reasons why Attorneys use Hearing Representation. In the process of workers’ compensation cases, there are many limited issues for which an attorney’s time and services are not required. Therefore, it is convenient to use a Hearing Representative to handle such an appearance. For example, the hearing is intended to continue the case to a further hearing. Some more experienced Hearing Representative handle more complex matters. Most of them have never attended law school. Therefore, they most likely lack the legal training that you get in law school which includes legal writing, legal research, analysis of authority, and legal argument.
What is Your Opinion on Hearing Representatives?
Like Attorneys, Hearing Representatives are a mixed bag. Some are very good, some are average and some are lacking. I employ Hearing Representatives to handle limited matters before the WCAB. Most times, I use them only when I have a conflict and I essentially need to have a “warm body” make an appearance before the WCAB. I prefer to have an Attorney present, however. I prefer to not have Hearing Representatives deal with legal issues.
If you are concerned about a Hearing Representative on your case, you should contact the Law Offices and speak to the attorney who is directly responsible for supervising the employee.
What If I Need Legal Advice?
If you would like a free consultation concerning any workers’ compensation case, please contact the Law Offices of Edward J. Singer, a Professional Law Corporation. They have been helping people in Central and Southern California deal with their worker’s compensation cases for 28 years. Contact us today for more information.