presentation legal ethics - mcle...
TRANSCRIPT
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CASE STUDY IN LEGAL ETHICS FOR WORKERS
COMPENSATION
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Michael Gaston –Singer Benjumea
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MORALITY V ETHICS
• MORALITY DEFINED: Principles concerning the distinction between right and wrong or good and bad behavior
• ETHICS: (moral) Principles that govern a person’s behavior or the conducting of an activity
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Duties of a Lawyer
• 1. Advise and Represent Clients in court, before government agencies and in private legal matters
• 2. Communicate with their clients, colleagues, judges and others involved in the case
• 3. Conduct Research and Analysis of Legal patterns
• 4. Interpret Laws, rulings and regulations for individuals and businesses
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George Goodworker v Cloudy Day Power
• George is a supervisor for a company that installs industrial strength solar panels in the Central Valley. The region in which he works is known for a spore which causes a lung infection colloquially known as “Valley Fever”. He worked for 15 years supervising the digging of the ditches and holes used in the installation, lived in the area as well, and also spends parts of the year in Texas, also in a region that has a similar spore. He has filed a CT claim with Mrs. Ethical an AA with a sterling reputation for only taking good cases.
• The DA has represented the Insurance company used by Cloudy Day for other employers, and gets a call
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Jim Bessfriend
• Jim is the new insurance adjuster at the insurance for Cloudy Day, which has only recently taken over as the insurer for the company. The DA has known Jim since high school. He heard Jim might be getting the job when the DA took the entire 40 person workers compensation department to a tailgate/football game.
• The DA always got a lot of business from this insurance company, but also represents the prior insured for Cloudy Day and did handle a few WC cases for that insured/insurer.
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IDENTIFY ISSUES/QUESTIONS
• LC Section 4906(g) Each is required to affirm that he or she has not personally violated LC 139.3 and that he or she has not offered, delivered, received or accepted any rebate, refund, commission, preference, patronage dividend, discount or other consideration, whether in the form of money or otherwise, as compensation or inducement for any referred examination or evaluation. Does this apply to DA’s?
• CA State Bar - Rule 1.7 (d)• Duty to employer If a conflict arises between an insurer and an employer,
defense attorneys must take care not to violate the duty to defend the employer. Normally in an insurance defense, the lawyer represents both the insurer and the insured. In fact, the relationship with the insured is the primary attorney-client relationship
• OTHERS
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Johnny Trukdriver v The Big Brown One
This is a injury from a motor vehicle accident. The case is accepted and has gone to the PQME. There is some evidence that the injured worker may be exaggerating his symptoms and/or malingering. The applicant’s attorney has a MMI report from the PTP and filed for an MSC with the PQME report pending. On the day before the MSC the DA gets the PQME report which rates above 90% and it appears the doctor, who is notorious for not changing his mind in deposition, appears to have ignored this evidence. However, the AA also has a reputation of wanting to go to AME’s in this situation.
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TRUTH IN A LEGAL SITUATION
When considering the ethics of lying in negotiation, we need to face the truth and take several steps. Ethics must come before actions. Several "concrete steps" might be taken.
1. We need to acknowledge that we have a personal stake in the existing discourse concerning the relationship between effectiveness and the ethics of the situation.
2. We should admit "lying works".
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TRUTH IN A LEGAL SITUATION (CONTINUED)
3. We must become "more critical of our self-serving claims about what is not a lie and about what lies are ethically permissible". This requires acknowledgement that lies are not justified by the rules of the game or by our duties to the client. Ethics and integrity may require costs.
4. Consider how winning can "leave room for ethics".
This is from Gerald Wetlaufer's article, "The Ethics of Lying in Negotiations", 75 Iowa L., REV. 1219, 1272-73 (1990).
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Issues/ Questions
• Lies of omission • Lies of commission• Bluffing • Others
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Nancy Weakwilled at trial
• The DA has a case that is going to trial. The applicant has a orthopedic claim and the PQME has found injury and some pathology. However, he has deferred to the trier of fact with regard to causation because there are some holes in the story. The DA recalls that the applicant went to pieces in deposition when psyche was covered, so much so that the psyche was dropped. However, her intends to being it up at trial to attack the credibility of the applicant in order to get the orthopedic injury found as non-industrial
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Winning at all costs/ Morality
Some Modern academic critiques hold the practice of law to be immoral or unjust as compared to the standard of “common morality” or “sense of justice” shared in the community.
Evidentiary truth v “Actual” truth
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Issues /Questions
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Billing situations
• “The business of workers compensation law in California has in many ways turned honest professionals into criminals because of the way billing is cut and in the way professional services are underpaid.” - Anonymous Principle.
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Issues/Questions
• How do we as Defense Attorneys handle the business of law ethically but at the same generate profit needed to sustain business.
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