Getting a Lawyer for an Unemployment Appeal

Lower Fees for Unemployment Appeals

There are a lot of lawyers that practice in fields of law which cater to individuals in the lower-income brackets.  Many of these are contingency fee cases or simply lower fee cases.  You would typically think of personal injury, Worker’s Compensation, or Social Security disability when you think of these types of cases.

One of the fields of law in which attorneys practice and in which the clients are primarily in a lower socioeconomic demographic is unemployment appeals.  Unemployment is granted to those who lost their job through no fault of the room. An entire federal and state statutory system has been set up to define exactly what that means.  Our state, just like every other state, is dependent upon correct interpretation of exactly who should get benefits and under what circumstances in order to receive federal money.  The question of whether someone has committed an act sufficient to disqualify them for unemployment is a legal question and as a legal question often involves representation by legal counsel.

Legislative Changes Affecting Access to Legal Help for Unemployment Appeal Claimants

However due to recent changes in the law and recent efforts by State officials I grow deeply concerned that Claimants in unemployment appeals are not being adequately represented.  They are led to believe that they are to engage in an informal process whereby they simply tell their story and a wholly neutral arbiter will decide whether or not they are qualify for unemployment.  However one of the first questions they are presented with is whether they have any legal objection to the documents being presented by the other side.  And when they cannot articulate things like the best evidence rule or hearsay or any other typical objection you may have to such document evidence presented by opposing party, they are already in too deep to get the help that they need.

Whether Claimants Need Help in an Unemployment Appeal

This problem is further exacerbated when it’s time to give testimony and the person is objected to or interrupted by opposing counsel or opposing parties. It’s exacerbated even further when it’s their turn to question the other side and they are constantly interrupted by an appeals referee telling them that what they just said or asked is not articulated in a manner sufficient to require an answer from the witness.  Then the claimant is given an opportunity to make a closing summary. Often they are given a time limit and probably have no experience summarizing an hour’s worth of evidence into a persuasive one minute closing statement.

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The Impact on Claimants

While cost of legal representation has always been an issue in these hearings and access to legal counsel has been somewhat limited for claimants, there has for many years been at least some ability to get legal advice about their case before they have a hearing. Some of the best unemployment representation comes from pro bono organizations such as legal aid of North Carolina.  However there were also a number of private attorneys who ran practice helping exclusively claimants in unemployment appeals for lower cost flat fees.   However the legislature recently amended the employment security law to make it so that attorneys cannot access what were once considered public records. Much like a speeding ticket practice, attorneys would use these records to alert claimants to the fact that there was affordable legal counsel out there available. From there the power to choose affordable counsel or the best counsel or simply the most accessible legal counsel was given to the client. Attorneys would compete for their business through efforts to improve their reputation, through effective cost, and through help that was given upfront without initial commitment (free consultations).

Following legislative changes prohibiting attorneys from accessing these records, there were fewer attorneys at the doorstep of claimants on a daily basis and accordingly there’s now less competition among attorneys.

Purpose of Changing the Law

The purpose of the law was allegedly to address concerns about non-compliance with federal law. It was stated to the general assembly that the federal government had threatened to take away North Carolina funding if it continued to provide these notices to attorneys who requested them.  The federal government cited a number of regulations and laws in support of its case. What it failed to recognize is that it has known about and accepted the fact that this process of requesting records and the position of the state of North Carolina that such records were public record for over 10 years.  Additionally if you actually analyze their position it does not make a whole lot of sense. I would submit that the federal government misinterpreted its own law and its own regulations which in turn causes state governments to have to fall into line with this misinterpretation or risk losing its title three grant money.  The end result – it harms Claimants unnecessarily.

Given the administration’s earnest desire to pay off the unemployment debt it accrued during the recession, the question must be raised: did the administration cause the legislature to change this law to further its mission of paying off debt?

In the course of this great debate it has been stated that the federal government only found out and involved itself because of publicity that had hit the media recently. However it has been shown through sworn testimony that the federal government has known for 10 years. So why the sudden rush to arms?

Well think of it this way:  If claimants don’t know that they can have counsel or at least don’t know that affordable legal counsel is out there, and they don’t have access to free legal consultations prior to the hearing, even if they could never afford an attorney, then it would naturally follow that fewer claimants would be prepared for a contested unemployment appeal hearing. Without receiving letters in the mail from multiple attorneys a claimant might not appreciate the gravity of the case being presented against them in this hearing. It would then follow that fewer claimants would win their cases because they don’t understand the seriousness of what they are being faced with and are generally less prepared than their employer counterparts who have probably been through this procedure on multiple occasions.  This does more to stack the odds in favor of the employer. If the employer wins more hearings, the unemployment office pays less benefits out.  If they pay out fewer benefits, then they pay this debt off faster.

Status of Unemployment Benefits Fund

By all accounts the debt is being paid off very quickly and much faster than anticipated.  It would seem that if this particular action furthered their goal in causing this debt to be paid off much faster than expected, it at least raises the suspicion that it was an intentional act.  If one assumes for a moment that they intentionally misled our legislature for the purpose of reducing the debt to the federal government, there really is a question as to whether it’s ethical to take measures to limit access to legal counsel for contested court like proceedings adjudicated by state officials.

The Ethics of Limiting Legal Counsel in Unemployment Appeals

The right to legal counsel as a general matter is of great importance to the country and to our state. North Carolina spends enormous resources making sure that people have constitutional access to counsel (E.g. Indigent Defense Services). In many cases it goes above and beyond its constitutional obligation to provide legal counsel at no cost or at a reduced cost for many matters. The idea that the state would go out of its way to limit access to counsel does admittedly seem contradictory to its history.

A real question that has come up as a result of this legislative changes is whether we really are doing enough to make claimants aware of their right to legal counsel in these proceedings. Admittedly there is a blurb about it in the brochure provided by the division of employment security.   But is that really enough?  Do claimants who have never been through this experience ever before in their life really understand and appreciate what’s going to happen during this hearing and really appreciate that they may need legal advice and representation during these hearings and subsequent higher level appeals?  I can tell you that I have seen a great many cases where Claimants are denied unemployment benefits – not because they shouldn’t qualify – but because they did not understand their procedural obligations (something that would fit the role of an attorney).

Don’t get me wrong:  Unemployment reform in some manner was necessary following the recession. We had accumulated quite a bit of debt and something had to be done in order to pay this off and recover from the recession.  But was it appropriate, necessary, or ethical to limit claimant’s access to legal counsel in order to effect that change?

Christopher Wilms is a managing partner at Hopler, Wilms, and Hanna, PLLC. He represents claimants and employers at all levels of unemployment proceedings as well as in Superior Court.

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