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Licensed Representative Regulations


Rules and Procedure Relative to the Issuance, Suspension and Revocation of Licenses to Representatives of Claimants and Self-Insured Employers/Carriers to Practice before the Workers' Compensation Board

Adopted by the Workers' Compensation Board of the State of New York, pursuant to Section 24-a, Sec. 50, Subd. 3b, Sec. 50, Subd 3-d and Section 117 of the Worker's Compensation Law.

SUBPART 302-1. REGULATIONS

SECTION 302-1.1 PRACTICE BEFORE BOARD

  1. No person except an attorney-at-law of this State, a law school graduate or senior law student as permitted by the Judiciary Law and these rules, a representative licensed by the board, an authorized employee of a licensed representative of self-insurers, or a regular employee of a self-insured employer or insurance carrier may practice before the board.
  2. No officer, director, trustee or employee of a group self-insurer, as defined in subdivision 3-a of section 50 of the Workers' Compensation Law, may represent or participate, directly or indirectly, on behalf of an injured worker or his dependents in any workers' compensation proceeding in which the group or any member of the group is a party.
  3. The board shall be deemed to include any bureau, office, unit, section, or employee, as well as the referees of the board.

SECTION 302-1.2 QUALIFICATIONS OF APPLICANTS TO BE LICENSED

  1. An applicant, and if a corporation, an officer thereof, shall show that he or she:
    1. is over 18 years of age;
    2. is a citizen of the U.S.A. or an alien lawfully admitted for permanent residence in the U.S.A.;
    3. is a permanent resident of the State of New York or has a regular place of business in the State of New York;
    4. is a person of good moral character;
    5. has a high school diploma or the equivalent thereof;
    6. has a competent knowledge of the law and regulations relating to workers' compensation matters and the necessary qualifications to render service to his or her client.
  2. The applicant shall furnish as reference the names and addresses of at least five persons who have been acquainted with his or her character and reputation for the past five years.

SECTION 302-1.3 APPLICATION FOR A LICENSE

  1. Applications shall be made on a form prescribed and furnished by the board.
  2. A representative of a bona fide charitable or welfare organization, labor union, or other organization of employees, designated by it for that purpose, may apply to be licensed to represent its members, which license shall be revoked upon certification by such organization to the board that the individual so licensed is no longer authorized to represent its members.
  3. Persons, firms or corporations other than attorneys and counselors-at-law, soliciting self-insurers as clients, or representing self-insurers at any hearing, investigation or inquiry, relative to a claim for compensation, shall apply for a license. The application of a corporation shall be made and verified by a duly authorized and qualified officer.
  4. Employees, other than attorneys, of any person, firm or corporation licensed to represent self-insurers and insurance carriers may practice before the board on behalf of such clients, provided that they have the qualifications required herein for a license and have obtained authorization from the board to appear on behalf of the employer-licensee. All such employees shall be required to pay a fee for authorization payable upon the filing of application for authorization. The employer-licensee shall provide such employees with credentials evidencing their employment, and shall promptly notify the board of termination of such employment.
  5. All applicants are required to be fingerprinted and a name search with fingerprint verification obtained from the Division of Criminal Justice Services, Executive Department, State of New York. Applicants are to submit with their application a check or money order payable to "New York State Division of Criminal Justice Services" in the amount charged by that division for such services.

SECTION 302-1.4 EXAMINATION

An applicant shall be required to evidence his or her fitness, knowledge and understanding of the Workers' Compensation Law, Disability Benefits Law, Volunteer Ambulance Workers' Benefit Law and Volunteer Firefighters' Benefit Law and the procedures established thereunder by submitting to a written examination and oral review at the board's discretion. Prescribed written examinations shall be given at reasonable intervals and times as fixed by the board. An applicant for renewal of a license shall not be required to submit to written examination and shall be required to submit to oral review at the board's discretion. Oral review, if required by the board, for applicants who receive a raw score grade of 70 or better on the written examination shall be scheduled within 90 days after the completion and grading of the written examination, or when required by the board in cases of a renewal application, within 90 days after the submission of the completed application.

SECTION 302-1.5 OATH REQUIRED

An applicant shall be required to take the oath or affirmation in form prescribed by the board before the issuance of a license or renewal thereof, and filed with the board.

SECTION 302-1.6 ATTORNEY ADMITTED TO PRACTICE IN ANOTHER STATE AND LAW SCHOOL GRADUATES AND SENIOR LAW STUDENTS PERMITTED TO PRACTICE IN THIS STATE.

  1. An attorney duly admitted to practice in another state may be permitted to represent any party in interest before the board, on a particular matter, upon proof submitted with his or her application that reciprocal privileges are accorded attorneys of this State.
  2. Law school graduates and senior law students permitted to practice law pursuant to the Judiciary Law under a program of activities approved by the Appellate Division as provided in such law, and designated as law interns or legal interns by a legal aid organization whose program of activities has been so approved, may represent any party in interest before the board, on a particular matter, upon compliance with this subdivision. Such legal aid organization shall submit to the board secretary a certified copy of the order of the Appellate Division granting approval of such program of activities together with a list of law school graduates or senior law students designated as law interns or legal interns by such legal aid organization. Such law interns may, under the general supervision of an attorney, file forms and make applications as required and appear at hearings before Workers' Compensation Law judges in noncontroverted claims or at such hearings, other than trail hearings, in controverted claims. Such law interns may, under the immediate supervision of an attorney, appear before Workers' Compensation Law judges at trial hearings in controverted claims and at all hearings before board panels. "Immediate supervision" of a law intern shall mean that the supervising attorney shall be personally present throughout the hearing. An attorney supervising such law interns shall be admitted to practice law in this State, shall have two years experience in this State or another state, and shall be associated with the legal aid organization which has designated such law interns. Any such supervising attorney shall be the attorney of record in each case, shall assume personal professional responsibility for any work undertaken by a law intern, and shall supervise the preparation of such work. A law intern may appear before the board, in accordance with the foregoing supervision requirements, on behalf of any party in interest where such party gives written consent to such appearance and representation and provided further that the supervising attorney also gives written consent to such appearance. The written consents herein shall be filed in the board case file. All legal papers in the case shall be endorsed by the supervising attorney as attorney of record, and may contain the name of the law intern who participated in their preparation. Law interns may represent a party only when such party is not otherwise represented by an attorney or licensed representative and is eligible to qualify for free legal services in accordance with the standards and guidelines of the organization or program in which the law intern is engaged. Such representation of claimants by law interns shall be without fee or any other remuneration, and no law intern or supervising attorney shall request or receive any fee or remuneration for such representation. Failure to comply with this subdivision shall be a sufficient basis for denial or revocation of permission to engage in such representation by law interns.

SECTION 302-1.7 LICENSE FEES AND BONDS

  1. Licenses and authorizations shall be issued for terms of up to three years.
  2. The fee for a license with fee under section 24-a, a license under section 50(3-b) or (3-d), or an authorization under section 50(3-d) shall be $100 per year, payable to the chairman of the board. Upon application for such license or authorization, a fee of $100 shall be payable. If the license or authorization is granted, the application fee shall be applied toward the payment of the license or authorization fee. The balance of the license or authorization fee, if any, shall be payable upon the granting of the license or authorization.
  3. A surety bond in form prescribed by the chairman in the sum of $5,000 per year shall be filed by each applicant for a license to represent self-insured employers.

SECTION 302-1.8 LIST OF LICENSED REPRESENTATIVES

  1. A list of all individuals who make applications for license or who are licensed or whose applications have been rejected or denied or whose licenses have been suspended, revoked or discontinued shall be kept in the office of the secretary.
  2. The secretary shall furnish, upon request, information as to whether an individual, firm or corporation is licensed to practice before the board.
  3. The secretary shall issue an identification card to each licensed representative and authorized employee, who shall exhibit it upon request of any official or employee of the board.

SECTION 302-1.9 CONDUCT

Each licensee shall observe the rules and regulations of the board, and mere failure or neglect to observe such rules or regulations shall be sufficient cause for invoking disciplinary proceedings as herein provided.

SECTION 302-1.10 PROCEDURE FOR THE SUSPENSION OR REVOCATION OF LICENSES

  1. Processing of complaint. All complaints against licensed representatives or authorized employees of a licensed representative shall be referred to the secretary of the board. For purposes of this section the term representative shall include holders of licenses under section 24-a and section 50, subdivisions 3-b and 3-d of the Workers' Compensation Law, and duly designated and authorized employees under section 302-1.3(b) of this Subpart.
  2. Preliminary inquiry. The secretary's office, in consultation with board counsel, shall conduct a preliminary inquiry of all complaints received. The secretary may also conduct a preliminary inquiry on his or her own initiative. If the board secretary concludes that there exits evidence that violations of the Workers' Compensation Law or board rules which might warrant disciplinary action have occurred the secretary shall refer the complaint or the results of an inquiry undertaken at his or her own initiative to the chair.
  3. Investigation. The chair may designate a committee, comprised of a board member, the secretary and an officer or employee of the board, to conduct an investigation.
    1. The investigation shall be carried out by the designated committee and shall be assisted by board counsel. A representative has no right to be present or have legal representation present during the investigation. If, however, the committee directs the representative to appear before it during the investigation, the representative may have legal representation present.
    2. The committee may require witnesses to appear before it during the course of the investigation and may also require the production of books, papers or other documents deemed to be material. The committee may issue or cause to be issued subpoenas for documents and the appearance of witnesses before it.
    3. The committee shall report its findings to the full board.
  4. Institution of charges. The full board shall determine whether formal charges or other appropriate action should be brought against the licensed representative.
  5. Disciplinary hearing.
    1. The chair shall designate a committee consisting of not less than three board members to conduct a hearing on formal charges brought against the licensed representative by the full board. No license or authorization shall be suspended or revoked unless the representative shall have been served with a copy of the charges and been given an opportunity to be heard. The hearings shall be preceded by service of a copy of the notice of the charges and 10 days prior written notice of the time and place of the hearing. The representative may submit to the secretary a written answer to the charges at least three days prior to the hearing. Board counsel may assist the committee at said hearing.
    2. The representative has the right to be present at the hearing, and may have legal representation and present witnesses and evidence.
    3. The board committee may require witnesses to appear before it during the course of the hearing and may also require the production of books, papers or other documents deemed to be material. The board committee may issue subpoenas for such documents and for the appearance of witnesses at the hearing as may be required by the board committee or by the representative proceeded against.
    4. The board committee shall not be bound by the formal rules of evidence in the conduct of the hearing.
  6. Board committee report. The board committee shall report its findings of fact and recommendations to the full board. No evidence taken during the investigation may be presented in the final committee report, or be made the basis of board action suspending or revoking a license, unless it was presented at the hearing at which the representative had a right to be present and the opportunity to have legal representation.
  7. Full board determination. The full board determination must be based on the record before the board committee and such record must contain evidence to sustain the same. The full board may suspend or revoke a license or authorization, or may take other appropriate action.
  8. Notification of board action. The secretary shall notify the representative and the complainant of the final action taken by the board.

SECTION 302-1.11 ORIENTATION PROGRAM

  1. Every applicant to become a licensed representative or, if such applicant is a corporation, the qualifying officer thereof unless such qualifying officer is an attorney-at-law duly admitted to practice in the State of New York, who applies for an initial license under section 24-a or section 50 of the Workers' Compensation Law and who has been approved by the board to become a licensed representative and every applicant who is a designated employee of a licensed representative who has been approved by the board to receive initial authorization under section 50 of the Workers' Compensation Law, shall be required to complete an orientation program, as set forth in this section, prior to the board's issuance of a license.
  2. The secretary of the board shall provide for and maintain an orientation program which shall consist of an overview of the following topics:
    1. procedures relating to practice before the board;
    2. provisions relating to the conduct of licensed representation and issues relating to the legal and ethical responsibilities of practitioners before the board; and
    3. any other topics which the secretary deems necessary.
  3. The orientation shall include such presentation and shall contain such requirements as the secretary's office deems necessary.
  4. The orientation shall be made available to applicants at reasonable intervals and times as fixed by the secretary.
  5. The secretary shall, upon completion of the orientation program by the applicant, provide written certification of completion of the program. This certification shall be conclusive evidence of the applicant's compliance with this section.
  6. The orientation program must be satisfactorily completed prior to the issuance of a license.

SUBPART 302-2. RULES OF CONDUCT

SECTION 302-2.1 DUTY TO HIS CLIENT

Every representative of claimants, employers and carriers should:

  1. have full knowledge of his client's case;
  2. ascertain and make a complete and accurate disclosure to his client of the facts and questions of law in the case;
  3. act promptly in protecting his client's interest;
  4. comply with the law; and any unintentional noncompliance, error or omission either on his or his client's part should be corrected promptly on notice or information thereof;
  5. exercise diligence in the preparation and handling of all matters involving his client's case, and assist in the prompt disposition thereof;
  6. disclose fully to his client in writing on a form prescribed by the board any adverse interest or relationship of the licensed representative or person authorized to represent the license holder with any of the parties. Adverse interest or relationship include, but are not limited to, ownership of stock or other financial interest in any party to the proceeding and representation of another party in this proceeding. Representation of more than one party in a proceeding is prohibited. Except with the consent of his client after the foregoing full disclosure, a representative shall not represent a client in a proceeding. If a duly designated employee of a licensed representative of self-insurers for reasons of adverse interests withdraws from representing a client, no other duly designated employee of the same licensed representative may represent that client in the same proceeding;
  7. fairly advise his client as to the merits of the case;
  8. transfer, or accept the transfer of, a case to or from another representative or lawyer only after disclosure and with the approval of the board or referee; and
  9. withdraw only after giving not less than five days' prior written notice to his client, and filing a copy thereof promptly with the board.

SECTION 302-2.2 DUTY TO BOARD AND REFEREES

A representative should:

  1. conduct himself at all times in the same orderly manner as is required of lawyers in courts of law;
  2. produce promptly all records or evidence as required;
  3. submit promptly to the chairman the names of all regular employees and the names of other persons or agencies connected with him in representing clients, and all changes therein, together with a statement of his arrangements with them;
  4. keep a register in form approved by the board in his office available for inspection, showing all his cases;
  5. display his license at all times in a prominent place in his office; and
  6. appear only in those cases in which he is directly retained by his client or by his client's attorney-at-law.

SECTION 302-2.3 PARTNERSHIP-NAMES

An individual representative shall not:

  1. maintain any partnership except with another licensed representative and after full disclosure of the partnership terms to the board; and
  2. practice under an assumed or trade name.

SECTION 302-2.4 COMPENSATION, COMMISSIONS AND REBATES

  1. No representative licensed under section 24-a shall exact or accept any fee or other payment unless and until it shall have been authorized by order of the board or referee.
  2. Division of any fee with another licensed representative or a lawyer shall be based upon division of service or responsibility and shall be improper unless fully disclosed to the board and referee before the fee is authorized.
  3. A representative shall not, directly or indirectly, receive any profit by credit or other valuable consideration as a commission, discount or gratuity in connection with any compensation case.

SECTION 302-2.5 PREPARATION, PUNCTUALITY AND EXPEDITION

A representative shall:

  1. thoroughly investigate and prepare his case; and
  2. be punctual and ready to proceed at hearings and avoid undue delay in the trial of the case by submitting all available evidence as promptly and fully as possible.

SECTION 302.6 CANDOR AND FAIRNESS

A representative should:

  1. state all facts correctly, whether in writing or orally;
  2. perform punctually his written or oral commitments; and
  3. communicate with an adverse party who is represented by an attorney or licensed representative only through such attorney or representative.

SECTION 302-2.7 ADVERTISING

  1. A representative may advertise as set forth in the provisions of this section. A representative shall not solicit, directly, indirectly or by implication, employment in compensation cases, except in connection with the representation of self-insured employers as specifically permitted by subdivision 3-b of section 50 of the Workers' Compensation Law.
  2. A licensed representative shall not use, disseminate or participate in the preparation of any public communication containing statements or claims that are false, deceptive or misleading.
  3. Advertising or other publicity by licensed representatives shall not contain puffery, self-laudation, or claims that cannot be measured or verified.
  4. If an advertisement is broadcast, it shall be prerecorded or taped and approved for broadcast by the licensed representative, and a recording or videotape of the actual transmission shall be retained by the licensed representative for a period of not less than three years following such transmission. All advertisements for services that are mailed, or are distributed other than by radio, television, directory, newspaper, magazine or other periodical, by a licensed representative shall also be subject to the following provisions:
    1. A copy of each advertisement shall at the time of its initial mailing or distribution be filed with the secretary of the board.
    2. Such advertisement shall contain no reference to the fact that such advertisement has been filed with the secretary.
    3. If such advertisement is directed to a predetermined addressee, a list, containing the names and addresses of all persons to whom the advertisement is being or will thereafter be mailed or distributed, shall be retained by the licensed representative for a period of not less than three years following the date of mailing or distribution.
    4. The requirements of this subdivision shall not apply to distribution of professional cards.
  5. A licensed representative shall not compensate or give anything of value to representatives of the press, radio, television or other communication medium in anticipation of or in return for professional publicity in a news item.
  6. All advertisements for services shall include the name, office address and telephone number of the licensed representative whose services are being offered, and shall clearly indicate the representative's identity as a Workers' Compensation Board licensed representative.
  7. Upon request, the secretary may issue an opinion as to whether an advertisement complies with this section. No advertisement shall mention the fact that such opinion has been issued.
  8. The above section applies solely to advertising for services rendered in connection with the license to represent parties before the Workers' Compensation Board.

SECTION 302-2.8 UNAUTHORIZED PRACTICES AND INTERMEDIARIES

A representative shall not:

  1. seek out those with claims, or employ agents or runners for like purpose, or pay or reward, directly or indirectly, those who recommend or refer cases to him/her;
  2. represent clients recommended to him/her by any individual who solicits business or obtains clients in violation of the preceding subdivision;
  3. directly or indirectly encroach in any way upon the retainers of another representative;
  4. knowingly, either directly or indirectly, employ or accept assistance from any person whose application for a license has been denied, or whose license has been suspended, or who has been suspended or disbarred as an attorney-at-law in any state; or
  5. accept private employment in a matter in which he/she had substantial responsibility while he/she was a public employee.

SECTION 302-2.9 MISCONDUCT GENERALLY

The license of a representative may be suspended or revoked:

  1. if the representative shall be convicted of a crime in any court, State or Federal;
  2. if the representative gives false or substantially inaccurate information in any application for a license;
  3. if the representative conceals or attempts to conceal material facts in any case;
  4. if the representative solicits or procures the giving of false testimony;
  5. if the representative misappropriates funds or documents entrusted to him in any case; and
  6. if the representative violates any provision of the rules of the board governing the licensing of representatives of claimants and self-insurers of these rules of conduct.

SECTION 302-2.10 CORPORATION RESPONSIBLE FOR ITS EMPLOYEES; LEGAL AID ORGANIZATIONS RESPONSIBLE FOR LAW INTERNS

  1. A corporation licensed as the representative of self-insurers shall be responsible for its employees and for their compliance with these rules.
  2. A legal aid organization whose program of activities for law school graduates and senior law students has been approved by the Appellate Division pursuant to the Judiciary Law shall be responsible for all law interns or legal interns selected by it to represent claimants in accordance with these rules. Such organization shall require supervision of such representation as required by these rules, by a supervising attorney who is admitted to practice in this State and has two years' experience in this State or another state and who shall be the attorney of record in each case where a law intern engages in representation of a claimant pursuant to these rules. Such organization shall also comply with all other requirements for representation of claimants by law interns as set forth in these rules.

SECTION 302-2.11 RULES MAY BE SUSPENDED OR MODIFIED

The Workers' Compensation Board may in its discretion suspend or modify any provision of these rules.

SUBPART 302-3. OATH OF LICENSED REPRESENTATIVE

SECTION 302-3.1 FORM OF OATH

Each licensed representative shall be sworn by the following form of oath to be filed with secretary before being admitted to practice under his license, and any violation of his oath shall be grounds for disciplinary action.

I DO SOLEMNLY SWEAR:

I will support the Constitution of the United States and the Constitution of the State of New York.

I shall thoroughly and conscientiously handle cases entrusted to me.

I will not counsel or maintain any claim in behalf of a client which shall appear to me to be unjust, and shall accept only such as I believe to be honestly debatable under the Compensation Law.

I will employ, for the purpose of sustaining the matters confided to me, such means only as are consistent with truth and honor, and will never seek to mislead the Board by any artifice or false statement of fact or law.

I will accept no compensation from a claimant in connection with his claim except as provided by the law.

I will abstain from all offensive personalities and advance no fact prejudicial to the honor or reputation of a party or witness, unless required by the justice of the cause with which I am charged, SO HELP ME GOD.

Sworn to before me

this _________________ day of ___________.____________., 20________.