Board Bulletins and Subject Numbers

August 29, 2017

The Workers’ Compensation Board (Board) has recently taken steps to formalize the award of attorney’s fees in workers’ compensation proceedings. In Subject Number 046-943 (May 17, 2017), the Board clarified the methodology for awarding such fees, highlighted proposed amendments to 12 NYCRR 300.17, and addressed modifications to the Application for a Fee by Claimant’s Attorney or Representative (Form OC-400.1).

This Subject Number will address the related goal of formalizing procedures for the withdrawal of attorneys and licensed representatives from the representation of claimants in Board proceedings. In furtherance of this goal, the Board has revised 12 NYCRR 300.17(b)(2) and (c), and created a new OC-400.17 form, entitled Attorney/Licensed Representative Request to Withdraw from Representation (Form OC-400.17).

The amendments to 12 NYCRR 300.17 are effective August 30, 2017. The revised Form OC-400.1 should be used for any fee requested on or after this date. An attorney or licensed representative should use the new Form OC-400.17 to withdraw from representation on or after this date.

The Regulation

12 NYCRR 300.17 (Notice of Retainer, Appearance and Substitution, and Fees of Claimant’s Attorney or Licensed Representative) was amended, in part, to formalize the process by which an attorney or licensed representative withdraws from representation of a claimant.

12 NYCRR 300.17(b)(2), as amended, provides as follows:

An attorney or licensed representative may withdraw from representation of a claimant when (i) a notice of substitution has been filed; or (ii) a withdrawal of representation completed in the format prescribed by the Chair has been filed and approved by a Workers’ Compensation Law Judge or conciliator. Failure to obtain the approval of a Workers’ Compensation Law Judge or conciliator prior to ceasing representation of a claimant, when a notice of substitution has not been filed, will constitute the basis of a referral for a violation of Rule 1.16 of the Rules of Professional Conduct (22 NYCRR 1200.0) for an attorney, and may be the basis for license revocation of a licensed representative.

12 NYCRR 300.17(c), as amended, provides as follows:

No fee shall be approved or fixed, in accordance with subdivision (f) of this section, for the services of any such attorney or licensed representative [with fee] who has failed or neglected to serve and file the required notice of retainer and appearance, [or] the required notice of substitution, or obtained approval of a withdrawal of representation as required in subparagraph (2) of subdivision (b) herein.

The Form

The Board has developed Form OC-400.17 in order to effectuate the withdrawal of an attorney or licensed representative from the representation of a claimant.

The withdrawing attorney or licensed representative is required to provide the following on Form OC-400.17:

• WCB Case Number(s)
• Claimant’s name
• The date of the request to withdraw from representation.
• A statement that he or she is requesting to withdraw from representation of the claimant, and that the request to withdraw meets the standards set forth in 12 NYCRR 300.17, and the Rules of Professional Conduct for Attorneys (22 NYCRR 1200.16 Rule 1.16), or the Rules of Conduct for Licensed Representatives (12 NYCRR 302-2).
• The reason for the attorney or licensed representative’s withdrawal from representation.
• A statement that at the time of the requested withdrawal: (a) there is no application for review pending before the Board, the Full Board or an appeal to the Appellate Division, (b) there is an appeal pending before __________, and a response is due _________, (c) a hearing is not scheduled in the matter and he or she has not been notified of any other deadline that requires a response, (d) a hearing date has been set, and/or (e) a deadline for a response to a particular matter has been set for a particular date.
• A certification that the information provided is true and correct to the best of the attorney or licensed representative’s knowledge.
• A certification that a copy of Form OC-400.17 has been served on all of the parties, their representatives, and any unrepresented parties in this claim(s), including the claimant.

Approval by Workers’ Compensation Law Judge (WCLJ) or Conciliator

The request of an attorney or licensed representative to withdraw from representation must be approved by a WCLJ or conciliator in order to be effective. Upon the filing of Form OC-400.17, a WCLJ or conciliator will issue a proposed decision granting the request, denying the request or setting a hearing in order to address the issue.

If the request to withdraw is approved by the WCLJ or conciliator, the attorney or licensed representative may then effectively cease representation of the claimant. Once cessation of representation has been formally approved, the attorney or licensed representative may also request a fee pursuant to 12 NYCRR 300.17(f).

Conclusion

The new Form OC-400.17 is available on the Board’s website. Please see the Board’s Forms page.

Please address any questions concerning the withdrawal from representation under 12 NYCRR 300.17, or Form OC-400.17 to the Board’s Office of General Counsel at officeofgeneralcounsel@wcb.ny.gov or (518) 486-9564.