Sunday, July 10, 2011

Attorneys and Representatives

We're lucky, we're living in the information age. I can't imagine how hard it was to handle an OWCP claim without the Internet. This is interesting to me since I fought technology for so long, I didn't even have a computer when my OWCP saga started.

Maybe you find yourself in a position where you need or want help with your OWCP claim. There are several attorneys out there that do nothing but OWCP claims and you may or may not have heard their names. In an OWCP claim, you don't have to hire an attorney, you can hire anyone to represent you. In addition to attorneys, there are also representatives that handle OWCP claims. Representatives usually come about by starting with their own claims. Through time and effort, these Claimants become "experts" in OWCP. Somewhere out there now is a Claimant on their way to becoming another OWCP expert.

In the very beginning, since I knew absolutely nothing, I found myself in a position to need representation. I hired an attorney and paid the $5,000.00 retainer. I hired this particular attorney because a fellow employee was using him and he had successfully battled OWCP with his own claim and had been doing it ever since, more than twenty years.

It only took a few weeks for my retainer to be spent. One of the things my attorney did was file an appeal with the ECAB. Within just a few weeks a response came back that the appeal could not be filed because there had been no formal decision from OWCP. It was at that moment I began to question the abilities of my attorney. I had just learned the hard way my attorney didn't know the basic facts of OWCP procedure. Unfortunately, what I didn't know then was a lot.

It was then I caved in to technology and found the magic of the Internet. I Googled my attorney and what I found was that he had in fact been an attorney up until the California Bar Association suspended his license (several years earlier) for financial abuse against ten of his OWCP Claimants. He never got his attorney's license back, yet still called himself an attorney and last I saw, still advertises as an attorney.

I guess the moral of the story is, check with your State Bar Association and make sure your attorney has a valid license. Google your attorney and see what's there.

Just because an attorney or representative has been doing OWCP cases for years, decades even, it doesn't mean they're any good at it. Likewise, someone who's only been doing OWCP cases a few years might be great at it. For example, there are two attorneys that are pretty good at Schedule Award claims, but not great in other areas. There's an attorney who only wins 1-5% of the time, yet somehow gets a lot of Claimants to sign on with him. There are rumors of representatives who illegally charge on a contingency basis.

So how do you know if your attorney is any good at OWCP cases? That's an excellent question. The only way that I know of is the ECAB decision web sites (links to both are on the "LINKS" page). On the site by month and year, you can go to any month and year and by looking at all the decisions that month, you can see how many appeals the attorney or representative filed and what the win, lose or remand record is for the month. By going to the searchable ECAB site, you can type the attorney's name into the search bar and see what comes up.

There is a problem with this limited information. First, it doesn't have anything to do with the win/loss record on any other appeal such as a reconsideration, review of the written record or a hearing. We can only assume any prior appeal was lost, as most people consider the ECAB the last resort. Second, the attorney or representative may not have many or any appeals in front of the ECAB, so you may not find any record. A lack of ECAB appeals could indicate the representative has a better win record and doesn't need to constantly appeal to the ECAB.

Hiring an attorney or representative is an important decision. I suggest researching and talking to the person. Will they talk to you? Do they charge a fee for talking to you? Will they answer your questions? Do they know what they're talking about? I suggest having a few questions ready that you know the answer to. If the person can't answer those questions accurately, move on to someone who can.

If you find yourself in this position, these are the FECA rules governing attorney and representatives fees, which can be found in the FECA Manual part 2 at 2-1200...

Under FECA part 2 at 2-1200-2, A Federal employee may act as a representative only on behalf of an immediate family member or while acting as a Union representative. In both cases, no fee or gratuity can be charged.

Under FECA part 2 at 2-1200-4, A Claimant is solely responsible for the fees of their representative, however, fees must be approved by OWCP prior to the fees being paid. Collecting fees without OWCP approval is a misdemeanor under 18 U.S.C. 292. OWCP DOES NOT pay the fee, the Claimant is solely responsible for the payment of fees, but OWCP must approve the fees.

Fees with no relation to your claim will not be approved by OWCP.

Time spent in preparing the request for fees, writing letters, holding conferences, or any other activity connected with the preparation of the representatives bill may not be considered.

Fees for work in front of other areas, such as the ECAB must be approved by the ECAB and not the OWCP under 20 C.F.R. 501.11.

Mailing, copying, messenger services, travel costs and the like should not be included in your bill. These are services OWCP has determined to be "Administrative" costs between the representative and his/her client. However, secretarial services, paralegal, legal assistant and legal intern can be included in your bill.

Any retainer or pre-paid fees must be held in an escrow account by the representative and cannot be removed until OWCP approves the fees.

Your bill must include an itemized statement showing the representatives hourly rate, the number of hours worked, a description of the specific work performed and the total charge less administrative costs. A statement with the amount charged must be signed by the Claimant. This statement must also include an acknowledgement that the Claimant is aware that s/he has to pay the fee. If any of this information is missing, OWCP should return the bill to the representative advising them to submit a corrected bill.

OWCP does not recognize any contract or agreement between representatives and clients for payment of a fee for services on a contingency basis. In other words, a representative cannot collect a percentage of your compensation or your Schedule Award. Any contingency contract or agreement will not be considered. In Angelea M. Sanden the ECAB ruled that the representatives contingency fee arrangement was illegal. The ECAB determined the contingency contract null and void and the representative had to calculate the money owed on an hourly basis. Here's the link to the Sanden case http://www.dol.gov/ecab/decisions/2004/Sep/04-1632.htm

Since this is what I do for a living now, obviously I'm not saying don't hire someone if you need them. I'm saying make sure you make an informed decision on the subject because in OWCPland, whatever your representative says on your behalf is counted by OWCP as coming from the Claimant. So you want to make sure you see anything before it's submitted to OWCP to check it for accuracy. It's easy for a representative to get dates, places or events wrong. The Claimant knows their case better than anyone and has a vested interest in the outcome of OWCP's decisions. You might need help, but you have the right to know what's being said or done on your behalf.

Remember, your representative fees can be challenged. If the rules above are not being followed, you believe you're being overcharged or you don't agree with the fees, write to OWCP, quoting the FECA Manual and/or Angelea M. Sanden and challenge your fees. At some point OWCP will have to make a formal decision on the subject and you'll get appeal rights. If you're right, the fees can be reduced or eliminated by OWCP.