FAQs Concerning Defending Attorneys in Ethics Matters Brought Before the Social Security Administration

Attorneys who appear before the Social Security Administration (SSA) on behalf of clients—whether those clients are making claims for benefits or otherwise—are bound to adhere to the dictates of the SSA’s Rules of Conduct and Standards of Responsibility for Representatives, i.e. 20 C.F.R. § 404.1740 (Title II) and 20 C.F.R. § 416.1540 (Title XVI). The former generally relates to Social Security Disability Insurance (SSDI), retirement, or survivors’ claims, while the latter relates to Supplemental Security Income (SSI) needs-based claims. However, the text of the two sets of regulations is virtually identical.

The section of the Social Security Administration that handles attorney ethics matters relating to the above regulatory scheme is known as the Office of Social Security Administration Law & Policy. The investigator assigned by the SSA’s Office of General Counsel (“OGC”) will investigate the allegation of unethical conduct by an attorney who is involved in an SSA matter and if necessary, proceed with a formal complaint. That will typically lead to a hearing to consider whether and to what extent a quantum of discipline should be imposed. This can range from dismissal of the matter to disqualification, suspension or disbarment.

The following are some of the frequently asked questions that may arise when counsel is handling either an SSDI, SSI, or other matter before the Social Security Administration.

FAQ #1: What is the standard of proof that governs whether or not an SSA ethics matter should be dismissed ?

If the OGC determines professional misconduct cannot be shown by a fair preponderance of the evidence, it should dismiss the case. See 71 FR 2871-01, 2875 (Jan. 18, 2006) (“in the decisions made under §§ 404.1770 and 416.1570 in response to administrative charges brought against a representative under §§ 404.1745 and 416.1545, hearing officers decide findings of fact based on the preponderance of the evidence.”); see also Stanley v. Barnhart, 475 F.Supp.2d 813, 818 (E.D. Ark. 2007).

Preponderance of the evidence “means such relevant evidence that as a whole shows that the existence of the fact to be proven is more likely than not.” 20 C.F.R.§ 404.901. Suspicion is not enough, nor is it enough that the same facts can be characterized unfavorably in hindsight. The OGC must show that the improper reading is more likely than the innocent one.

FAQ #2: Does the Code of Federal Regulations impose responsibility upon attorneys who are supervising others who are alleged to have violated the SSA’s ethical requirements?

Under 20 C.F.R. §§ 404.1740(b)(10) and 416.1540(b)(10), a representative must ensure that those under her supervision comply with the Rules of Conduct and must act where she has reason to believe a violation has occurred or will occur.

Those regulations state in part,

(b) Affirmative duties. A representative must, in conformity with the regulations setting forth our existing duties and responsibilities and those of claimants
… .
(10) Ensure that all of the representative’s employees, assistants, partners, contractors, or any person assisting the representative on claims for which the representative has been appointed, comply with these rules of conduct and standards of responsibility for representatives, when the representative has managerial or supervisory authority over these individuals or otherwise has responsibility to oversee their work. This includes a duty to take remedial action when:

(i) The representative’s employees, assistants, partners, contractors or other individuals’ conduct violates these rules of conduct and standards of responsibility; and
(ii) The representative has reason to believe a violation of these rules of conduct and standards of responsibility occurred or will occur.

FAQ #3: Is an attorney who appears before the SSA on behalf of a claimant responsible to ensure that the claimant cooperates with the process?

The answer is yes and no. While there is a level of cooperation that the attorney simply cannot be responsible for—such as a client who simply disappears and will not communicate with that attorney—there are basic requirements of cooperation that every attorney is bound by.

For example, under 20 C.F.R. § 404.1740(b)(2),

(b) Affirmative duties. A representative must, in conformity with the regulations setting forth our existing duties and responsibilities and those of claimants (see § 404.1512 in disability and blindness claims):
(1) Act with reasonable promptness to help obtain the information or evidence that the claimant must submit under our regulations, and forward the information or evidence to us for consideration as soon as practicable.
(2) Assist the claimant in complying, as soon as practicable, with our requests for information or evidence at any stage of the administrative decisionmaking process in his or her claim. In disability and blindness claims, this includes the obligation pursuant to § 404.1512(c) to assist the claimant in providing, upon our request, evidence about:

(i) The claimant’s medical source(s);
(ii) The claimant’s age;
(iii) The claimant’s education and training;
(iv) The claimant’s work experience;
(v) The claimant’s daily activities both before and after the date the claimant alleges that he or she became disabled;
(vi) The claimant’s efforts to work; and
(vii) Any other factors showing how the claimant’s impairment(s) affects his or her ability to work. In §§ 404.1560 through 404.1569a, we discuss in more detail the evidence we need when we consider vocational factors.

The attorney is also required to

(v) Maintain prompt and timely communication with the claimant, which includes, but is not limited to, reasonably informing the claimant of all matters concerning the representation, consulting with the claimant on an ongoing basis during the entire representational period, and promptly responding to a claimant’s reasonable requests for information. When we evaluate whether a representative has maintained prompt and timely communication with the claimant, we will consider the difficulty the representative has in locating a particular claimant (e.g., because the claimant is homeless) and the representative’s efforts to keep that claimant informed.

FAQ #4: What is the standard by which an attorney who appears before the SSA will be held responsible for oral or written statements submitted to it that are false?

An attorney is not the guarantor of truth; they can be innocent of wrongfully misleading the SSA, notwithstanding that the oral or written submission by them was later learned to be false. Instead, there is a standard by which an attorney’s responsibility will be judged: namely, whether they knew or should have known of the falsity.

This is set forth in 20 C.F.R. §§ 404.1740(c)(3) which states that such an attorney “must not”

(3) Make or present, or participate in the making or presentation of, false or misleading oral or written statements, evidence, assertions, or representations about a material fact or law concerning a matter within our jurisdiction, in matters where the representative knows or should have known that those statements, evidence, assertions, or representations are false or misleading.

FAQ #5: Can the SSA ethics matter result in reciprocal discipline before the state bar(s) in which the attorney is licensed?

The possibility of reciprocal discipline based upon the facts that are adduced in the SSA’s ethics investigation and/or hearing must be kept in mind. In other words, it is possible that the attorney will be exonerated before the SSA, only to be the subject of a virtually identical ethics investigation by the state bar in which they are licensed.

For more on this issue, see our landing page on reciprocal discipline.

The Firm’s Approach to Defending Attorney Ethics Matters

The Nissenbaum Law Group has an attorney ethics defense practice that not only advises attorneys who are licensed in New York, New Jersey, Pennsylvania, but also those who have been cited for ethical infractions when practicing before federal administrative agencies involving the EOIR, BIA, DHS, USPTO OED, FTC, and SSA as well as in MDL (multidistrict litigation) matters. In addition, the firm handles the ethical and transactional legal issues that arise in such items as creating a proper form of retainer agreement and law firm management and succession.