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Are We Seeing the End to Ethics & Civility in Professions? (Part One)

While searching for another article, I located this quote on a colleague’s website:

Just because you have a legitimate injury and cannot work, it does not mean that you will receive workers’ compensation. That’s because benefits are paid by your employer’s insurance company, which has an arsenal of lawyers who are paid to deny your claim.

I cannot believe this firm, which I highly respect, has resorted to such inflammatory generalizations to attract new business. This arguably violates Rule 7.1(a)(1) regarding misleading attorney advertising. Regardless, the reality is:

(a) Not all injuries are legitimately caused by work, and it is the duty of the EMPLOYER’S attorney to ensure only those injuries that actually occurred in the course and scope of employment are paid for under a workers’ compensation (“WC”) policy. Anyone that blindly accepts every claim without any actual evidence has probably committed malpractice and increased the opportunities for fraud that increases everyone’s WC premiums.

(b) Approximately 80% of all WC claims are paid. While it is true that some injuries are not compensated immediately, a great number of those unpaid merely require EVIDENCE. Claimants and their attorneys sometimes think it is best to hinder the production of evidence, especially medical reports, yet this is what the insurance company’s claims examiner requires to accept a claim. No evidence likely means no payment, and vice versa. Be forthcoming, and there’s a good chance that your claim will be paid. If you produce the required documents quickly, you will often be paid quickly. It’s when you try to hide something (or even look like you are trying to) that we will think you HAVE something to hide.

(c) Lawyers are not “had” by the insurance companies. This is a common mischaracterization of the attorney-client relationship and the subject of an Ethics Opinion I am writing for the New York County Lawyers’ Association. In a New York WC case, the attorney might be hired by the insurance company, but the client is most certainly the employer. The Board refers to attorneys not representing the claimant as “carriers’ attorneys,” but this is absolutely incorrect. See NYSBA Ethics Opinion #73. Although the insurance carrier might pay the attorneys to defend the employer whose worker has filed a claim against it, the carrier is NOT a party to the action. The carrier merely pays an established claim up to the limits of the insurance policy–as required under its contract with the employer. The insurance contract does NOT make the carrier a PARTY–or the client.

(d) Even when the insurance carrier pays for an attorney to represent its insured employer, there is no blanket rule or practice that requires the attorney to deny the claim. The attorney is bound by the ethical rules to exercise independent professional judgment and to advance the objectives of the employer, not the carrier. See Rules 1.2, 1.4.

I am exhausted and saddened by this apparent increase in bi-partisanship, both in Washington (where it is expected but still unacceptable) and out. As lawyers, we were trained to look objectively at fact patterns and form arguments in favor of our clients–but based on the evidence. This trend toward unprofessional, inflammatory behavior must end. Regardless of whether we think our clients expect it.

I don’t mean to suggest that we should never get emotional about our cases or advancing our clients’ goals. I am guilty sometimes of reaching that point of boldness when rational discussions have been dismissed, ignored or refused. However, I believe there is indeed a hierarchy of conflict resolution that for lawyers and professionals must almost always begin at a calm Level One. We should be role models for what’s possible in our judicial system, remembering that we are first and foremost zealous advocates of the judiciary.

Nance L. Schick, Esq. is a mediator, and conflict resolution coach based in New York City, where she works with creative professionals, entrepreneurs, human resources professionals, labor managers, risk managers, and executives to generate results beyond the boundaries of their imaginations. She is committed to creating a unified human race by empowering people to have lives they forgot were possible.