N.Y. Comp. Codes R. & Regs. tit. 12 § 300.17

Current through Register Vol. 46, No. 24, June 12, 2024

Section 300.17 - Notices of retainer, appearance, substitution, and fees of claimant's attorney or licensed representative

In the representation of a claimant before the Board or a Workers' Compensation Law Judge in any case:

(a) An attorney or licensed representative shall file a notice of retainer and appearance, and, when appropriate, a notice of substitution, in the format prescribed by the chair, immediately upon being retained. The attorney or licensed representative shall also transmit a copy of such notice to the insurance carrier, self-insured or other representative of the employer at the time of filing.

(b)

(1) An attorney or licensed representative, substituted for a former attorney or licensed representative, shall immediately upon being retained serve the former attorney or licensed representative with a copy of the notice of substitution.

(2) 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 22 NYCRR, Part 1200.0, Rules of Professional Conduct, Rule 1.16 for an attorney, and may be the basis for license revocation of a licensed representative.

(c) An attorney or licensed representative shall file an application in the format prescribed by the Chair in each instance where a fee is requested pursuant to sections 24 and 24-a of the Workers' Compensation Law, except that where the fee requested is not more than $1000, the attorney or licensed representative may, in lieu of such written application, make an oral statement on the record setting forth the calculation used to determine the fee and certifying that the amount is in accordance with subparagraph (2) of Section 24 of the Workers' Compensation Law . Notwithstanding the foregoing, the Board may require an application in the format prescribed by the Chair for a fee of $1000 or less. Any fee application shall be accurately completed.

(d) Whenever a fee is requested in excess of $1000 for services rendered in conciliation, administrative determination, agreement pursuant to section 32 of the Workers' Compensation Law, or conference calendar processing, the request is to be made in the format prescribed by the Chair in each instance where a fee is requested. Such fee request shall set forth the calculation used to determine the fee and certify that the amount is in accordance with subparagraph (2) of Section 24 of the Workers' Compensation Law. Fees awarded in conciliation, administrative determination, agreement pursuant to section 32 of the Workers' Compensation Law, or conference calendar processing, may be approved by a conciliator or designee of the chair.

(e) Whenever an award is made to a claimant who is represented by an attorney or a licensed representative, and a written fee application is submitted, the Board in such case shall approve a fee in an amount commensurate with the services rendered and the amount of compensation awarded, having due regard for the financial status of the claimant . In approving such fee, the Board shall apply the provisions of the schedule set forth in subparagraph (2) of Section 24 of the Workers' Compensation Law.

(f) Whenever an attorney or licensed representative is notified, by notice of substitution or otherwise, that the claimant has terminated his or her retainer, the attorney or licensed representative, in each instance where a fee is requested for services rendered for which no previous fee has been approved, shall file an application for such final fee in the format prescribed by the Chair, within 30 days of the filing of the notice of substitution. Where the fee requested is not more than $1000, the attorney or licensed representative may make an oral statement on the record as to the services rendered at the first hearing held following notice to such attorney or licensed representative that the retainer has been terminated. The Board shall determine the amount of fees allocated to a prior attorney or licensed representative out of the total attorney's fees awarded. A substituted for attorney or licensed representative, and attorney or licensed representative currently retained by the claimant, shall each be given the opportunity to present the Board with their respective positions in writing prior to the allocation of the awarded attorney's fee.

(g) The Chair may require that an attorney or licensed representative with access via the internet to his or her client's electronic case folder receive Board notices via an electronic mailbox.

N.Y. Comp. Codes R. & Regs. Tit. 12 § 300.17

Amended New York State Register August 30, 2017/Volume XXXIX, Issue 35, eff. 8/30/2017

Amended New York State Register December 28, 2022/Volume XLIV, Issue 52, eff. 1/1/2023