Ethical Considerations — Making the Tough Calls

Matt Greenbaum

It is apparent that certain elements within the Social Security Administration are seeking to reduce payments to claimants by discouraging attorneys from handling disability cases. Moreover, certain “ethical” standards of conduct are being proposed which seem on their face to call for a Social Security disability lawyer to defeat his own client’s case. Accordingly, it seems imperative that anyone practicing in this field have at least a familiarity with some of the tougher ethical questions, and a working knowledge of the applicable codes of conduct that presently govern our actions.

In an effort to determine what an ethical issues are disturbing the Administrative Law Judges, I surveyed the twelve local judges. Although not all responded to my letter, I did receive good input from judges who are both liberal and conservative. The issues that predominated my conversations with the ALJ’s are as follows:

  • Even though there are some regulations that indicate that the government has the obligation to fully develop the record, does an attorney have an ethical obligation to see that the record is complete, and does that obligation extend to spending money for medical reports or records which OHA has not obtained?
  • Does an attorney have an ethical obligation to provide medical evidence to an ALJ which is damaging to the claimant?
  • Does an attorney have an ethical obligation to correct the record, where a claimant tells his attorney after the hearing that he has indeed been engaged in substantial gainful activity, despite testifying to the contrary at the hearing?
  • Is there anything ethically improper about an attorney having argued in a letter that a case should be granted on the record because a listing is met, where that attorney later concedes at the hearing that he had no real basis for making such an argument?
  • Does an attorney have an ethical obligation to reduce his fee where he does not submit any medical evidence; all medicals have been obtained by the government; and the case is granted on the record?
  • Does an attorney have an ethical obligation to lower her fee where she previously represented the claimant in a personal injury case; received a 33 1/3% (or higher) contingency fee; and merely re-used the same medical evidence in the Social Security case?
  • Does an attorney have an ethical obligation to lower his fee if all of the medical evidence is provided by referring counsel, and the case is granted on the record?

There are no simple answers here. These are issues that are bothering the people who we appear in front of every day of the week. What is more important than answering each of these questions “yes” or “no” is to have a rudimentary understanding of the canons, ethical considerations and other regulations which will help you formulate your own approach. I am annexing some material which is particularly pertinent to this analysis.