In July 2018, the Social Security Administration (SSA) issued final amendments to the Rules of Conduct and Standards of Responsibilities for Appointed Representatives. The amendments add new affirmative duties, which we highlight below. The amendments also address the procedures used when the agency brings charges for violations of these rules. The full text is available at 83 Fed. Reg. 30849 (July 2, 2018). The changes are effective on August 1, 2018!
Do you know your record?
A new provision to the list of affirmative duties for a representative requires that the representative provide competent representation. This means understanding the significant issues in a case, operating with a “reasonable and adequate familiarity” with the evidence, and having a working knowledge of the applicable law. 20 C.F.R. § 404.1740(b)(3)(i). The section for competent representation is not new, but the language requiring familiarity with the record is new.
Do you know your schedule?
A new rule now requires a representative to provide, when requested, potential dates and times the representative is available for a hearing. 20 C.F.R. § 404.1740(b)(3)(iii).
Are you communicating promptly with clients?
SSA added a provision requiring representatives to maintain “prompt and timely” communication with claimants. 20 C.F.R. § 404.1740(b)(3)(v). This section covers typical communications: consulting about all matters in the representation, providing updates, and responding promptly to claimant’s reasonable requests for information.
New York’s Rules of Ethics 1.4 covers communication with the client and also features themes of promptness and the need to consult at times with the client. When SSA rolled out the proposed rule, it noted that it believed this rule comports with Rule 1.4 of the model rules (and as adopted in NY). (Notes accompanying the Notice of Proposed Rulemaking (NPRM) are at 81 Fed. Reg. 54520 (Aug. 16, 2016).) The new duty listed by SSA does not change our current responsibilities; rather, it provides SSA with a mechanism to bring charges for violations of this duty. With the final rule, SSA also notes that it expects representatives to have working contact information for clients while recognizing that it may at times be difficult to locate homeless or indigent clients.
Do you want to withdraw from a case?
SSA has now limited a representative’s ability to withdraw from a case. The new “affirmative duty” states a representative may only withdraw at a “time and manner that does not disrupt the processing or adjudication of a claim.” Further, the withdrawal must allow the claimant “adequate time” to find a new representative. 20 C.F.R. § 404.1740(b)(3)(iv). This section is akin to the requirements governing withdrawal generally in Rule 1.16 (c).
SSA goes farther, however, and imposes a limitation on our ability to withdraw once the “time and place” of a hearing has been set, unless the representative can show “extraordinary circumstances.” SSA certainly has the authority to limit withdrawal. Our ethics rules, specifically 1.16(d), acknowledge that the provisions of a tribunal may impose additional requirements for withdrawal. Here, SSA states a representative “should not” withdraw after the hearing has been set, unless the representative can show extraordinary circumstances. SSA intends for representatives to seek permission to withdraw once the hearing has been set – but uses “should not” rather than “shall not” to describe this duty. Hmmm.
The agency gives a very narrow interpretation of “extraordinary circumstances” in the notes accompanying the new regulations: the representative’s serious illness, a death or serious illness in the representative’s family, or the failure to locate a claimant despite diligent efforts. 83 Fed. Reg. 30849, 30850 (July 2, 2018). These are very limited reasons. SSA also comments, in the final rules, that its regulation is similar to Model Rule 1.16. SSA’s examples, however, do not appear at all in the Model Rule. New York’s Rule 1.16 (c )(9) allows for withdrawal when the lawyer’s mental or physical health “renders it difficult” to proceed, which is arguably contained in SSA’s rule. New York’s Rule also allows withdrawal when the client fails to cooperate or makes representation “unreasonably difficult for the lawyer to carry out.” Rule 1.16(c )(7) – and that provision generally covers a client who cannot be reached or is unresponsive. SSA’s examples are far less broad that those listed in our Rule 1.16, however.
SSA now requires the representative to seek permission to withdraw after the hearing has been set, and each request will be decided on a case-by-case basis. SSA very briefly addresses what must be contained in a request to withdraw, stating that a representative will not be required to disclose confidential information as part of the request to withdraw but will need to state that “he or she cannot describe why he or she must withdraw without revealing privileged or confidential communications” and then allow the ALJ to consider the request on those terms. Another hmmm. As an aside, this SSA regulation does not affect a representative’s ability to withdraw if discharged by the client.
Do you want to submit a medical opinion or a vocational opinion?
If so, you must disclose in writing whether you “drafted, prepared or issued” the opinion AND whether you referred the claimant for an examination or assessment by the person providing the opinion. 20 C.F.R. § 404.1740(b)(5). The written disclosure must be made when the opinion is submitted to SSA.
SSA’s new affirmative duty covers any actions where you “participated” in the drafting, preparation, or issuing of an opinion, according to the final comments. Participation includes actions where you provided a template or questionnaire for the person to complete. Advocates routinely use prepared lists of questions or checklists to seek opinions, and these absolutely are covered by the new duty to disclose. The disclosure may be as simple as noting, in writing and when you submit the opinion, that you supplied a blank questionnaire or that you drafted an interrogatory. If you do more than simply provide a blank form or list of questions, you will need to disclose those actions.
When does my duty of candor end?
SSA’s new rules add an affirmative duty to disclose to SSA immediately if the representative discovers his or her services are or were used by the claimant to commit fraud against SSA. 20 CFR § 404.1740(c)(6). There is no end date on this affirmative duty, nor does SSA address this in the introductory notes.
In the NPRM, SSA explained that it believes the new section is consistent with Model Rule 3.3. Further, the agency reminded readers that its federal rules take precedence over any state’s rules if there is a conflict (touting the U.S. Constitution’s Supremacy Clause, of course).
Briefly, Rule 3.3 prohibits the making or use of “false statements of fact or law to a tribunal” or failing to correct any previously made. Rule 3.3(a)(1,3). The Rule requires a lawyer to take reasonable remedial measures including disclosure to the tribunal, which in this case is SSA.
By not including an endpoint on this duty, SSA clearly intends to extend the duty to disclose beyond the time when the representation ends. New York’s own Rule 3.3 also lacks an end point on the duty of candor, even though the Model Rule contains one. Recent ethical opinions in this jurisdiction indicate as well that the duty of candor does not simply end with the representation.
This summary of SSA’s new Rules of Conduct and Standards of Responsibilities for Appointed Representatives should be enough to make you aware of SSA’s expectations of you as representatives. We plan to have a more in depth analysis and discussion of these rules, especially about the withdrawal process and the duty of candor, at the DAP Statewide Task force meeting to be held at the NYSBA Partnership Conference on October 2.