WCDefenseCA

Your humble blogger doesn’t like to name names, and has no intention of doing so in this case, but I now bring you the story of a workers’ compensation attorney from southern California facing some serious accusations of misconduct before the state Bar.

Bear in mind, dear readers, I do this not to shame anyone, because the State Bar and the California Supreme Court, if appropriate, will do that well enough itself.  I do this because the misconduct alleged is important for us to be aware of so that it is not done.  In a stressful situation, it is easy to blur lines, forget rules, and justify all sorts of behavior.  But, as with most wrongful action, it’s a slippery slope with the State Bar waiting at the bottom (not to disparage the State Bar, but you get the point)

The case involved an attorney that represented an injured worker on a workers’ compensation case, involving injury, 132a discrimination, and serious and willful misconduct.  The same applicant also had employment and disability discrimination claims, for which she retained another attorney.

At mediation, the parties agreed to resolve the workers’ compensation claim for $25,000 (of which $3,750 was to be paid to applicant’s attorney), dismiss the 132a and serious and willful claims, and pay an additional $787 as a deposition fee.  Meanwhile her disability discrimination claim was settled for $65,000, with her attorney to receive 1/3 as an attorney fee.  It appears there was no fee splitting or sharing agreement between the two attorneys.

Here is where things gets difficult.

Applicant’s counsel was apparently not satisfied with the fees to be recovered by applicant’s respective representatives.  His $4,500 recovery was dwarfed by the other attorney’s $22,500.

So, he sent an e-mail to the disability discrimination attorney, demanding a portion of her fee, or, if she didn’t make nice, he would walk through the compromise and release and obtain a 15% recovery on the $65,000.  After rejecting her offer of a $1,000 referral fee, he swapped out pages, making the $65,000 as the settlement amount for the 132a and serious and willful claims (which the parties had agreed would be dismissed), and naming himself as the sole attorney for the whole amount.

The WCJ, thinking he was dealing with an honest and ethical attorney, approved the C&R.  The disability discrimination attorney then sought reconsideration, having been cheated out of her fee.  The employer also had a thing or two to say about this, as all of a sudden, it was subject to an order to pay $65,000 as a result of serious and willful misconduct and 132a discrimination (potentially leaving the other claims no longer resolved).

Then, applicant’s counsel went a step further, filing a petition for fees for attending the mediation: 10 hours attendance, 5 hours travel to and from, all at $350 per hour.  The WCJ, again thinking he was dealing with an honest and ethical attorney, granted the petition, having been deceived into thinking that this was a deposition rather than a mediation.

Eventually, this all came out, and the parties affected by this were less than happy, and as a result, it’s possible that a career might just be at its end.

Now, lawyers are notorious for the macho act – this gets into their heads and they sometimes start over reaching.  And, in some cases, it takes over every decision-making process.

Accordingly, this is a good example of where the macho Kool-Aid can take us.  Adjusters would do well to learn from this lesson too: over-relying on “entitlement” and being victimized by the workers’ compensation system and the exploitation of workers and their attorneys can lead to a dark place.

Your humble blogger hopes that this attorney, and all who find themselves engaged in similar conduct, are redeemed and returned to the honest, ethical pursuit of justice.