Sunday, October 30, 2016

The Responsibilities of Attorneys and Supervision

The practice of law can be challenging. It sometimes throws a curve ball. Law has also morphed from a profession to a business. As with other businesses, technology has been leveraged to maximize efficiency. And, there has been a reliance on paralegals and other staff in the practice. The U.S. Bureau of Labor Statistics says that paralegal job growth is expected to run at about 8%, which is about the average job growth for "all professions."  

The technology element is also worth of consideration. Technology is invading our lives, personal and professional. It becomes more pervasive almost daily. So much so that The Florida Bar has recently required that all lawyers receive three hours of continuing education (in each three-year reporting cycle) on the topic of technology. 

Unfortunately, and fortunately, attorneys are increasingly relying on both paraprofessionals and technology. Both make the attorney more productive. Both make the attorney more efficient. But neither excuses the attorney from responsibility. In the end, the responsibility for representation, for competency, and for the outcome rests on the shoulders of the attorney. 

Recently, I received a document from an attorney. It was titled "Claimant's Response to Order Dismissing Insufficient Petition (Without Prejudice)." Electronic filing of documents is mandatory in Florida workers' compensation. It has been by rule since about 2010 and by statute not long thereafter. When a paper document arrives at the clerk's office in Tallahassee, sent by an attorney, is is usually dismissed for violating the law. Phrased that way, it makes sense. Attorneys sending paper pleadings (unless for a good reason) violates the law. 

The document in this case closed with the phrase "the Claimant’s attorney respectively requests this Court to rescind its order dismissing the Petition for Benefits and allow the Claimant’s petition to stand proper." In effect, the "Response" was a "motion," though mistakenly titled. 

As an aside, this office is part of the Executive Branch of Government. It is not a "court." Jones v. Chiles, 638 So.2d 48 (Fla. 1994); In Re Florida Rules of Workers' Compensation Procedure, 891 So.2d 474 (Fla. 2004)("The Office of the Judges of Compensation Claims (OJCC) is not a court of this State"). (Emphasis added). While this Office exercises quasi-judicial functions pursuant to statutory authority, it is not a Court. I am persistently bemused by references to this office and "Court," particularly when the reference is made by an attorney.

I periodically run into situations in which unrepresented parties struggle to get relief. They are not familiar with rules or procedures and they therefore send letters, postcards, or notes to a district office or the OJCC Clerk. Others, merely ask for time with the judge. Such requests often result in a "status conference," at which both parties and attorneys can present. It affords an opportunity to explain things to those who do not understand the rules, procedures and practice of law. Status conferences are useful when dealing with those who do not understand and need the opportunity for explanation and often for repetition. 

Generally, however, when a party wants an order or some other relief, they proper tool is a motion, see Rule 60Q6.115(1). 

This particular "response" (nay motion) made some intriguing representations. 

First, it merely asserted that counsel "desired to file a petition for benefits." No expression was made regarding why or how this was a challenge or problem.

Second, it said that "the undersigned was advised that they could not electronically file a petition for benefits." 

Third, that the "undersigned's office was advised that they could not file a Petition for Benefits electronically unless the Claimant voluntarily dismissed his own (previously filed) Petition for Benefits. 

Fourth, that this dismissal would "prejudice" the injured worker.

Fifth, that "there appears to be some glitch in the Department (sic) of Administrative Hearings' computer system which will not allow someone/an attorney to file a Petition for Benefits electronically if another Petition for Benefits has been filed already."

Sixth, that the counsel was nonetheless able to file a notice of appearance, and thereupon a "Petition for Benefits was sent (in paper form) to the Division of Administrative Hearings in Tallahassee."

That paper petition was dismissed because it was not electronically filed. Electronic filing is required by both statute and rule. As mentioned, that has been true for several years. Petitions for benefits are electronically filed in Florida on a daily basis, 67,265 times last fiscal year or about 184 times each and every day. When someone says the "cannot" file a petition, it signals that something serious is wrong. 

Despite this apparent success rate with petition filing, the attorney in this instance asserted that despite best efforts, "the Division of Administrative Hearings’ computer system would not allow the undersigned to comply with the electronically filing of the petition." 

Counsel then advised that "requiring the Claimant to dismiss the Petition for Benefits prior to any other attorney being able to file a Petition for Benefits is impractical, is unconstitutional, and deprives the Claimant of his rights filed under Chapter 440, under the Florida Constitution." The Constitution protects due process and other rights of people. 

We take "glitches" seriously at the Office of Judges of Compensation Claims ("OJCC")(an agency of Florida government charged with administering the adjudicatory requirements of Chapter 440 F.S.), which is "within the Department of Management Services," see Fla. Stat. 440.45). Neither the "Department" or "Division" of Administrative Hearings (DOAH) is charged with adjudication of workers' compensation claims, though there are administrative ties between the OJCC and DOAH. 

Another aside, a "glitch" is "a usually minor malfunction." The term is frequently used to refer to an electronic component, processor, or micro-processor device not performing as expected or intended. So, I set out to investigate this "glitch." We like to make programming corrections as rapidly as possible to facilitate the public's needs. I was unable to replicate the "glitch." We had multiple staff members analyze the allegations, attempt similar filings in our testing program, and even asked some programming questions. All to no avail. 

Next, I elected to enter an order on the case. First, that order vacated the dismissal of the paper petition. It is critical that no error prevent a person from receiving their due process. This is true when such an error is mechanical or human. The system has to strive to deliver due process under all circumstances. And, the order sought details from the filer, such as what was attempted, why it did not work, who was spoken to, and more detail on replies (so that further attempts could be made to replicate this "glitch"), etc. 

Additional information was rapidly forthcoming. And, it turns out, dad that information been included in the original Response (nay motion), including what was actually attempted and what failure actually occurred, a great deal of time and effort might have been saved. If counsel had invested as much time in actually trying personally to file that petition as had been invested in drafting a "response" (nay motion), time and effort might have been saved for the attorney, this Office, and all involved. 

First, counsel explained that the attorney had not her/himself tried to file a petition and had not spoken to any OJCC staff about the perceived issues. Counsel had instructed "legal assistants/paralegals" to file a petition. Those staff had encountered issues, made phone calls, and thereafter counsel filed a motion in reliance on their hearsay and the hearsay within hearsay of what they believed people said to them. Counsel's staff had failed and counsel elected to simply (or simplistically?) rely upon them without personal inquiry or personal involvement. That is a mistake. Attorneys are responsible for the actions of their staff. They are responsible to actively and effectively monitor and supervise staff. Rules of Professional Conduct, Rule 4-5.3

Second, the legal assistant described that the OJCC website "did not allow an option for me to file a Petition for Benefits." This, it turns out, is simply not true. The assistant in this instance did not click on "file document" and attempt to file a petition. In this instance, the attorney had not yet filed a notice of appearance, which is why this option ("file document") was not selected. The assistant instead tried to start a "new case" by filing a petition, and received an error code. This is because that injured worker already had a case. The OJCC assigns only one case number for each injured worker for each date of accident. You cannot start a "new" case where there is already an existing case. 

The assistant then did a case search (a good step) and discovered that this client already had an existing OJCC case (a fact that would hopefully be identified in the client intake process). 

Armed with this information that a case existed, the assistant returned to e-JCC and selected "file document," and described how the only option offered was "Notice of Appearance." This is true. If you are not counsel on a case, you may not file documents in that case. This seems simple, but it bears repeating. To file documents in a case, you must be counsel of record. To become of record, you must file a notice of appearance (says so in the Rules, Rule 60Q6.104). 

For illustration, in e-JCC, the user has a couple of choices: 

One is to click "file new case." Caution, this will only work if, in fact, you are filing a "new case." It is possible that a particular worker who hires an attorney will already have a case. Someone (former counsel) may have already set-up a case by filing an "initial petition" or a "request for assignment of case number ("RACN")(maybe by the employer/carrier to facilitate filing a motion or request). "RACN" and "new petition" are the only choices when you select the "File New Case" option. Again, this option is only for "new cases" (see red circles below). To be clear, each claimant can have one "new case" per accident. 

There can only be one "initial" petition. By "initial" we mean "occurring at the beginning" (see Webster's). After an "initial" has been filed, there can never again be another "initial." A similar example is birthdays. When someone attains one year of age, we celebrate their first or "initial" birthday. After that, we may celebrate many "subsequent" birthdays. Each will have an effect and is worthy of noting, but only that first one will ever be the "initial" one. 

It is not possible, when you meet someone, to attempt to celebrate their "initial" birthday again. That has already occurred. You might celebrate their birthday, but not the "initial" one. In the same way, if you get a new client, you might well file another petition, but you cannot file another "initial" petition. That is not a "glitch," unless in personal logic. The attorney in this situation would likely have understood this had a personal role been undertaken, rather than the reliance on staff hearsay and the resort to a "response" (nay motion). 

So, it turns out that the first error was attempting to file a second "initial" petition. That cannot be done, and the reason is perfectly logical. There is no "glitch." 

The second error was counsel relying blindly upon staff hearsay. Staff is of assistance to counsel, but their inability to accomplish assigned tasks does not deny due process to a client. It may merely evidence staff competency issues that the attorney should personally work to resolve. The attorney should become involved personally because that is what the client hired, expects and deserves. 

The third error was the attorney's staff calling for advice and assistance from an OJCC district office staff with e-filing. For several years, the OJCC has advertised the availability of assistance with filing. The appropriate source of advice or assistance is to email If you need assistance with e-filing, go to the source. Go to the clerk's office that runs the filing system. Go in writing (email) and that way you will get a response in writing. The chances for miscommunication of the problem or the solution is minimized. 

But, if you make a phone call to the OJCC clerk's office, take the name of the person to whom you speak. In this instance, the best we know now from the attorney's response is that the attorney's staff says they called the clerk and "spoke to someone." Weeks later, that is an almost impossible trail to follow. 

The fourth error is the misunderstanding that the attorney "could not file a Petition for Benefits electronically unless the Claimant voluntarily dismissed his own (previously filed) Petition for Benefits." The question that was asked was how the new attorney could file an initial petition. The correct answer was you cannot. Once an "initial" petition is filed, every other petition will be "subsequent" to it. Unless the entire "initial" case were deleted from the OJCC database, there is no way a new "initial" petition can be filed. This is as impossible as you celebrating another "initial" birthday. 

The fifth error is the allegation that there is a "glitch." The only error in this situation is what computer programmers refer to as "user error." Computers are literal processors of information. Humans program them to interact with humans, and to provide communication. They seem to react and to provide advice sometimes with error messages, but they are really just doing what humans programmed them to do, with "canned" responses. Computers do not make decisions. They do not make independent observations. They take what you tell them and they rely upon your representations. 

An old adage in computing is "GIGO," or "garbage in, garbage out." The effectiveness of a computer is directly dependent upon the inputs provided by the user. If you repeatedly try to file an "initial petition" in a case that already has a petition, the computer will not let you. It will show an error every time. This is not a glitch, it is user error. If you find that a computer will not do what you want it to, email and ask a question. 

And finally, remember that the notice of appearance is your way of joining a case. Imagine the chaos if that gateway did not exist. Imagine thousands of lawyers filing documents on hundreds of thousands of cases, haphazardly, randomly, without checks and balances. No, to file on a case you must file a notice of appearance. You cannot file documents using another attorney's access (username and password). If you do, the filing will show up as that attorney's filing and not as yours. Computers are literal. They do not read your document to see who signed it. Computers accept your document and the representation (remember the Rules of Professional Conduct and the requirement of truthful representations to the tribunal, Rules of Professional Conduct, Rule 4.3-3) of who is filing it. 

Finally, the error was in sending a paper document to Tallahassee. Electronic filing is mandatory. If you believe you have found a "glitch" in the system, email If you do not make any progress, send me an email Save yourself the time of a paper pleading, an order striking, and a "response" (nay motion). Protect your client's due process proactively, rather than through a later complaint (response, nay motion) that merely outlines user error and staff supervision issues. 

Paralegals' presence in our profession will expand. Technology will continue to expand its presence in our profession. Attorneys will become increasingly dependent upon both. Each will contribute to efficiency and productivity and profitability. But each must be supervised by the attorney, who is ultimately the one responsible for protecting his or her client. In the end, there is no denial of due process in user error, or competency issues, there is only the spectre of malpractice. And that, ultimately, rests upon the attorney rather than the computer or the paralegal/assistant. And, that is why the attorney must take an active, personal role. 

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