Monday, November 24, 2014

Who Represents this Party?

There seems to be a great confusion about representation in Florida workers' compensation cases. Fortunately, not a great deal of attorneys are confused, but the few confused attorneys are causing a great deal of work. 

Here is the situation, an attorney leaves her or his firm and either starts a new firm or goes into business with some other firm. That attorney wants to "substitute" the new firm for the old firm. Some attorneys are incredulous when they are told that no such substitution is needed or even allowed. 

Attorneys have to understand that the Florida Rules of Procedure for Workers’ Compensation Adjudication (FRPWCA), Chapter 60Q, F.A.C., do not permit a law firm to make an appearance on any case. The rules only allow an attorney to appear on a case. The lawyer's first firm cannot appear. Thus, certainly the lawyer's next firm cannot appear.

There is no purpose in a notice of substitution or a motion for substitution of one firm for another. The first firm was never "of record," the second firm will never be "of record." This seems obvious, but it just keeps coming up. 

Some references:

Rule 60Q6.104 provides

"Representation and Appearance of Counsel (1) Appearance of Counsel. An attorney who files a petition or claim on behalf of a party has entered an appearance and shall be deemed the party’s attorney of record. All other attorneys appearing for a party in an existing case shall file promptly with the judge a notice of appearance and serve copies on all other parties or, if represented, the parties’ attorneys of record. The notice of appearance shall include the style of the proceeding; the case number; the name of the party on whose behalf the attorney is appearing; and the name, mailing address, e-mail address, telephone number, and Florida Bar number of the attorneyAttorneys shall keep their e-JCC profile current by logging into e-JCC and updating their mailing addresses, e-mail addresses, and telephone numbers when such information changes. (Emphasis added).

In no context whatsoever is there any mention of a law firm appearing on behalf of a client. The attorney appears on behalf of a client. There is no appearance by any firm.

The conduct of attorneys in Florida is controlled by the Rules of Professional Conduct ("FRPC"). Its provisions are consistent with the same outcome. 

In the FRPC Preamble "A lawyer, as a member of the legal profession, is a representative of clients.” And “as a representative of clients, a lawyer performs various functions.”

In the FRPC definitions, “Lawyer,” means “a person who is a member of The Florida Bar or otherwise authorized to practice in any court of the State of Florida.”

The FRPC obligations to the client are those of the "lawyer:"

A lawyer shall abide by a client's decisions concerning the objectives of representation.” FRPC Rule 4-1.2. (Emphasis added). 

A lawyer shall act with reasonable diligence and promptness in representing a client.” FRPC Rule 4-1.3, Rules of Professional Conduct. (Emphasis added). 

Requirements of FRPC Rule 4-1.4 fall upon “a lawyer.”

When the need arises, according to the Rules of Professional Conduct, “the lawyer may withdraw.” Comment to FRPC Rule 4-1.2. (Emphasis added). 

In some instances, “The lawyer must, therefore, withdraw from the representation of the client in the matter.” Comment to FRPC Rule 4-1.2. (Emphasis added).  

In conflict of interest, “the lawyer should withdraw from the representation.” Comment to Rule 4-1.7. (Emphasis added). 

In a variety of circumstances, “a lawyer shall not represent a client.” FRPC Rule 4-1.16. (Emphasis added). 

Withdrawal is also “allowed” by FRPC Rule 6-1.16(b): a “lawyer may withdraw from representing a client if . . ..” (Emphasis added). 

No reference is made to "the firm," or "a firm." A Lawyer is a person, and it is the lawyer that appears on a case according to FRPWCA Rule 60Q6.104. This is consistent with the FRPC.

So when a notice of appearance or a petition for benefits is filed, that filing attorney becomes counsel of record in that OJCC case.
What if the document is prepared and signed by attorney “X” and is “on behalf of the firm” called “ABC P.A.” and it is uploaded by attorney “Y” also of that firm? Well, then attorney “Y,” who uploaded that notice, is now counsel of record for that party. Why not “X?”  Because “X” did not file it, “Y” did. The database does not read the document to decipher who signed the notice, it associates and acknowledges that attorney that filed the notice. 

Is “ABC P.A.” counsel on the case? No, attorneys are counsel not firms.

What if attorney “X” is the correct attorney and the filing by “Y” is error? Then “X” and “Y” will work together to fix their error. The simplest method for this repair is for “X” to now file a notice of appearance. This will add “X” to the case.

But what if “Y” wants to be removed from the case, so that s/he is no longer served with the notices, orders, etc.? Then “X,” after filing her/his notice of appearance, files a stipulation for substitution” pursuant to Rule 60Q6.104(2)(a). This will remove attorney “Y” from the case.

Why can’t the attorney or paralegal just call the OJCC and have the public record changed to correct their mistake? Because the pleading is what created the public record and another pleading to repair it is consistent and provides a history to explain why data in the database was changed (attorney “Y” removed from the database for case yy-nnnnnn because of stipulation for substitution of counsel).

The next context in which an understanding of this is relevant is how an attorney can be removed from a case in which that attorney has filed either a notice of appearance or a PFB.

Rule 60Q6.104(2) provides
“During the pendency of any issues before the judge, an attorney of record remains the attorney of record until: (a) A stipulation for substitution has been filed with the judge and served on all other parties or, if represented, their attorneys of record; or (b) A motion to substitute or to withdraw, which reflects that it has been served on the client and all other parties or, if represented, their attorneys of record, is granted.” (emphasis added).

Once an attorney is associated with a case, s/he remains on the case until another pleading is filed, a stipulation or a motion.

As with paragraph (1) of the rule, paragraph (2) makes no reference to “firm” or “law firm.” This is inherently logical because a firm cannot make an appearance (1), only an attorney can appear (1). Therefore, there is no provision in (2) for a firm to be relieved from a case.

If attorney “X” leaves law firm “ABC P.A.” and opens “X and Assoc. P.A.” and will continue to represent the party, what filing is required? Nothing need be filed with the OJCC. Attorney “X” should visit e-JCC, open her/his “profile,” and change her/his contact information to the address, phone, email, etc. of “X and Assoc. P.A.” It was attorney “X’s” case when s/he filed a petition or notice of appearance, and it is still attorney “X’s” case.

That nothing must be filed does not mean the attorney or some attorney at the former firm may want to file something, which is certainly appropriate.

Does attorney “X” need to file a new notice of appearance referencing “X and Assoc. P.A.?” No, firms are not counsel, attorneys are. Attorney “X” is counsel of record regardless of the firm with which s/he is affiliated, or with which s/he was formerly affiliated.

What if “ABC P.A.” feels it has a lien for future recovered fees or costs? Then someone at “ABC P.A.” will now need to put the world on notice of that assertion, by filing a Notice of Lien.”

Can the OJCC just add “ABC P.A.” to the case database and mark them as a lienholder? No, to be a lienholder one must file a lien. To file anything in any OJCC case, an attorney (not a firm) must be counsel of record. This is accomplished by filing a notice of appearance. Rule 60Q6.104(1).

Can “ABC P.A.” file the notice? No, “ABC P.A.” cannot, it is a firm and not an attorney. Some attorney at “ABC P.A.” will have to file that lien on behalf of the entity whose interests that attorney represents, that is the firm. To do so, some attorney at “ABC P.A.” will have to file a notice of appearance, which will allow that attorney access to the case so that s/he may file that Notice of Lien on behalf of the firm "ABC P.A." 

When filing a notice of appearance, the e-JCC offers the choices of "claimant," "employer/carrier" or "other." Such a filing would be to represent "other," a lienholder.

What if attorney “X” leaves law firm “ABC P.A.” and opens “X and Assoc. P.A.” but the client has elected to remain with “ABC P.A.” and be represented by some other attorney with “ABC P.A.”? Then the other attorney at “ABC P.A.” needs to file a notice of appearance. That will accomplish adding the new “ABC P.A.” attorney as counsel of record. Then the other attorney at “ABC P.A.” needs to file a “stipulation for substitution” 60Q6.104(2)(a) or "X" or the other attorney may file a “motion to substitute or to withdraw,” 60Q6.104(2)(b). If attorney “X” has a lien, that should be noted in whichever pleading is filed so that the OJCC database can be properly notated to reflect the lien. 

The process is reasonably straightforward. The key element is that attorneys represent clients in this process, firms do not. There is no provision for a firm entering an appearance, and thus no basis for a firm substitution for another firm.