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Ethics in the workers' comp world: when a workers' comp lawyer faces an ethical challenge, the right course may be as clear as day - or as clear as mud. Do you know how to apply the rules? Test yourself with this series of hypotheticals.

Article Excerpt
Virtually all difficult ethical problems arise from conflict between a lawyer s responsibilities to clients, to the legal system, and to the lawyer's own interest in remaining an ethical person while earning a satisfactory living." (1)

In revising the Model Rules of Professional Conduct, the American Bar Association's (ABA) Ethics 2000 Commission focused on a lawyer's obligation to each client, requiring a lawyer to have more contact with the client as the means to accomplish representation, and ensuring the client's informed consent at all stages of the case. This heightened consumer orientation of law practice poses many challenges for busy workers' compensation lawyers.

As the preamble to the model rules notes, "[N] o worthwhile human activity can he completely defined by legal rules." The rules do, however, provide a framework for the ethical practice of law, and the comments to them provide illustrations and guides for the practitioner. Don't forget, though, that "the text of each rule is authoritative." Thus, "failure to comply with an obligation or prohibition imposed by a rule is a basis for invoking the disciplinary process." (2) Simply put, the rules trump the comments.

The dilemma facing workers' comp lawyers, who generally handle a substantial case load, is how to meet the rules' requirements for competence, diligence, and regular and timely communication. A general practitioner who enters the complex world of workers' comp law must have a keen awareness of his or her obligations to the client.

The following scenarios illustrate some of the common trouble-prone situations that come up in the day-to-day practice of workers' compensation law.

The solicitation

Will is a general practice lawyer. He occasionally attends Moose Lodge meetings, also attended by Ralph, a construction worker. One evening, Will observes that Ralph is unable to stand up straight. Will approaches Ralph after the meeting and asks him about the nature of his apparent injury. Will tells Ralph that he is a lawyer and indicates that he can represent Ralph in his workers' comp claim. Is Will's contact with Ralph appropriate?

Probably not. Rule 7.3 (Direct Contact with Prospective Clients) states: "A lawyer shall not by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer's doing so is the lawyer's pecuniary gain."

Since Will intends to charge a fee (his pecuniary gain), his solicitation runs afoul of the rule.

The retainer

Ralph calls Will from his home, 100 miles away from Will's office. Ralph's workers' comp claim has been denied following an adverse medical exam. He can't drive because he has recently had spinal surgery. Ralph is a union worker, and his union has been paying his medical bills and weekly disability. Will sends Ralph his standard retainer agreement, which Ralph signs and returns, and Will begins work on the case. OK ethically?

Probably not. Under new Rule 1.0(e), Ralph must give "informed consent" to representation, which is defined as: "[A]greement by...

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