A Move Toward Federal Influence?

In 2016, there was a great conversation about American workers' compensation. It included a great many of the thinkers involved in these many systems which cover millions of workers and their employers. The issues raised at the three summit meetings last year have been summarized in various settings, like The Conversation, Interests, and Compromise. A complete list of the issues was printed. 

When the Conversation planning started, there was significant discussion of Federalization. Some U.S. Senators and Representatives had written to the Secretary of Labor expressing concerns about these systems. Business Insurance wrote that the elected officials were concerned primarily "about a pattern of detrimental changes to state workers' compensation laws and the resulting cost shift to public programs like Social Security Disability Insurance." The financial health of SSDI (or lack of it) has been in this blog before. 

That Congressional interest further stimulated writing and speaking about workers' compensation, where it has come from and where it is. But the clamor has subsided somewhat. The sense of urgency seems gone. One group that recruited me in 2016 to help write a report, "for the new administration," simply decided to drop the idea. Others have struggled to maintain forward momentum against a seemingly growing sea of indifference, competing personal interests, and contrary institutional inertia.  

But, federalization seemed a hot topic in 2016. By the time the Summit, or "National Conversation," convened it turned out that federalization was not a primary concern of the participants. In fact, when the issues were listed, and topics were divided into three strata, "federalization" was listed last in the second group of priorities. Not that it is not concerning, but its immediacy or relevance was not perceived as paramount. The listing has provided perspective in this and other ways. 

At the last Summit meeting in New Orleans last November, there was discussion of the federal government. Not in the context of taking workers' compensation over, but in the context of how the federal government might impress influence on state systems. A somewhat common theory proposed was a move towards "protecting Social Security's interest" in a manner similar to the 1980 adoption of 42 U.S.C. Sec. 1935. 

According to Medicare expert Roy Franco, that concept of "protecting Medicare's interest" took about twenty years to bear fruit. It was in 2001 that the Centers for Medicare and Medicaid Services (oddly abbreviated "CMS" rather than "CMMS," but what do I know?) began to "appreciate" workers' compensation and take an interest. Anyone that works in workers' compensation knows the impact that interest has ultimately generated. Some might suggest that remaining unnoticed by the federal government has benefits. 

Some Summit attendees hypothesized that a similar law focusing on "protecting Social Security's interest" might be advocated. The fiscal angle is obvious, can the Congress find funding for this massive social program without either raising taxes or decreasing payments?  There are many who believe that shrinking federal programs is impossible or impractical, and so they see the only choices in simply how to fund what has evolved. 

That federal impact discussion brought a great many perspectives. Would the federal government take an interest in affecting workers' compensation in some manner short of federalization per se? I have had a fair number of discussions of that since November. 

I was somewhat surprised recently to see Bill to Streamline Adjuster Licensing Expected to Resurface in Congress on WorkCompCentral. This story laments the bureaucracy involved in adjusting workers' compensation claims in America. It is axiomatic that bureaucracy leads to expense, and expense tends to get passed down to those of us that pay taxes on income, purchases, property, etc. It is also a fact that costs affect what businesses charge for services, and that includes insurance companies and the costs they face with the regulation of their employees, including adjusters. 

The proponents of this federal "streamlining" law claim that "on average" the adjusters dealing with workers' compensation cases "hold licenses in 10 states," and some hold as many as sixteen. And there are a fair number of adjusters, purportedly 125,000. An industry group identified the volume and the licensing challenges in a recent survey. 

They therefore seek to streamline the licensing of adjusters, a subject heretofore a focus only of various state laws. WorkCompCentral reports that "34 states require claims adjusters to obtain licenses. But only 11 states use the uniform license application developed by the National Association of Insurance Commissioners." Reportedly "some states have reciprocity agreements for adjusters . . ., but others do not." So, adjuster licensing may be very similar to workers' compensation benefit laws, a patchwork of state requirements. The advocates want federal law to "require states that license adjusters to adopt uniform licensing requirements and reciprocity agreements." One advocate describe the "patchwork of inconsistent state rules" to be "so duplicative" and "so wasteful.” 

The proponents concede that their goal is not a foregone conclusion. In fact the same bill failed to pass in the last Congress. Despite that, the bill is being reintroduced. They punctuate their position by noting recent bills passed in Louisiana and Mississippi. This perhaps paints a picture of not just a "patchwork," but a fluctuating "patchwork."

As a long-time member of The Florida Bar, the subject of reciprocity is not new to me. Attorneys licensed in Florida cannot practice law in other states through reciprocity. In fairness, that is because Florida does not provide that privilege to attorneys licensed elsewhere. It is a mutual denial of reciprocity. It is increasingly uncommon in the practice of law, with many states participating in reciprocity agreements. 

I find myself wondering whether success on the adjuster proposal might lead eventually to discussion of national standards for licensing of attorneys? And, I wonder if there is benefit in federal action on this subject in any respect. There are those who believe that any federal government involvement in functions that have been state, such as workers' compensation, will only lead to continued and ever-increasing involvement. Those who advocate federal involvement in any element, such as adjuster licensing, may inadvertently break barriers and pave a path to federal involvement that they do not actually want. If "streamlining" works with licensing, why could it not work with benefit "sufficiency?"

The Conversations will continue about workers' compensation. It seems that the discussion will not focus on federalization directly, but that concern may perhaps receive attention if peripheral issues like Social Security and adjuster licensing consistency remain at the fore. 

A Button Labeled "Codger Mode"

On a recent business trip, I encountered first-hand an "intelligent assist" automatic feature on a rented car. I had read about these features, for anti-collision and safety. But the hands-on experience was unpleasant and left me with the conclusion that I would avoid it in the future. Perhaps most disconcerting was that neither the rental company nor the car provided any warning or instruction on these automaton features, how they might affect me, or how to turn them off. 

I left the rental company, pulled onto the highway and engaged the cruise control. As, is my habit with the cruise engaged, I then focused solely on the road and could now ignore the speedometer. Far ahead, a car pulled onto the road, and seemed to increase speed, seemingly maintaining the distance between us. My brain struggled with this, because I had expected to have to brake and slow when I saw the car pull out. I was pleased that it had seemingly accelerated to prevent that need. I was to learn I was wrong. 

After a few miles of the two cars at the exact same pace, the vehicle ahead executed a right turn from the highway. Immediately, my rental vehicle surged forward markedly and without warning. Glancing at the speedometer, I realized that the other vehicle had not maintained speed in front of me at all. Instead, my rental vehicle had in fact slowed markedly, more than 10 miles per hour, from the speed to which I had set the cruise, in order to avoid collision. 

My first reaction to this experience was simply that this vehicle was defective. Surely, if a vehicle is not going to perform like other vehicles, there would be some warning or instruction? I recently blogged about a motor vehicle accident that may have been in part caused by a lack of familiarity with a high performance car and its features. Once I entered the Interstate, this cycle (automatic deceleration, followed by sudden and violent acceleration) repeated itself multiple times. 

In an unrelated issue, this car made a beeping noise every time I changed lanes, more on that below. This was a distraction as I struggled to adapt to the cruise control issue. Regarding the cruising speed, I began to notice that when a vehicle was approximately 100 yards in front of me, my rental vehicle would begin decelerating gradually. Once it dawned on me that this was not an unintended defect, but a purposeful design, I was intrigued as to how this worked. I was unable to turn it off however. 

Initially, I was uncertain whether the deceleration was accomplished merely by less fuel (the cruise system), or whether the vehicle autonomously applied the brakes to maintain separation. Later in the drive, I topped a small hill to find a very slow-moving trailer ahead in my lane. This rental vehicle braked immediately and dramatically, slowing far more quickly than could be caused merely by decreased fuel flow. This car was effectively driving itself, with my only required input being to steer. 

My curiosity was peaked. I began experimenting with the system. I found that even when the system caused deceleration, I could override its decision with the accelerator pedal. The autonomous operation was controlling the cruise control and the brakes, but not disabling the accelerator. I was therefore in control, but only learned that over time and through experimentation. And that incessant beeping continued unabated with each lane change. 

I eventually found a dashboard display screen depicting the hood of the vehicle. I found that as I approached each potential obstacle, an image of a sedan would appear, indicating the presence of that vehicle ahead of me. Thus, if the pictures were carefully observed (instead of watching the road), a driver could facilitate a set speed merely by changing lanes or manually accelerating each time that icon appeared. But, from my few years of driving, the whole point of cruise control to me is not having to keep an eye on the instruments, and concentrating instead on the road. 

The next intrusion of this automaton occurred about 70 miles into my trip. A new beep was heard, and looking at the instrument cluster I saw a message advising me to "take a rest." I travel on highways a great deal. I have been for many years of my life. Not since I was a toddler has anyone (or anything) told me when it is time for me to rest. I was a bit nonplussed by this car doing so. How would it know if I am tired? My habit is to stop when the gas tank is empty, and I have often driven 400 miles between stops, not 70 minutes. Was the car recording my non-compliance with its rest recommendation? Had there been an accident, would the "black box" have informed that I ignored rest advice? 

Back to all that other lane-changing beeping; this vehicle annoyingly and persistently beeped. At first, it seemed random, and no amount of re-fastening the seat belt seemed to change it (that is the only thing that beeps on my 1997 vehicle). In time, I noticed the beeping was tied to changing lanes or otherwise approaching the lines painted on the road. Figuring this out again involved changing the dashboard screen display. There was an optional display setting I eventually found that displayed two parallel white lines. With some experimentation, I realized that the beeping accompanied one of these lines flashing from white to red. And, coincidentally, when it did so my tires on the red side of the car were then close to or on the highway paint stripes. This car could somehow "see" the highway. 

Overall, I did not enjoy the experience. I will do my best to never rent a similar car in the future. I am thoroughly familiar with and comfortable with the vehicles of the twentieth century. This more recent adaptive technology was not comforting or helpful, but distracting and uncomfortable. I longed for a "normal" car. I realize that the time I can cling to the 1990s is limited. Eventually all these antique cars I am used to and enjoy will wear out and I will be thrust into the next paradigm.

Perhaps before that occurs, manufacturers will become more adept at (1) disclosing the presence, features, and limitations of these devices and systems, (2) discover a method of these systems' interaction with the driver that does not involve making multiple changes to the display screen in the instrument cluster to understand, and (3) providing a method for us old codgers to "opt out" of their gracious assistance and instead drive like we learned back in the day (a simple, large, obvious dash button labelled "codger mode" would be nice). 

Come to think of it, that would be a neat feature on a variety of things, like "smart phones," television remotes, and more. Have the features, feed the tech desires of the young folks, but include a single, simple, obvious button for some of the rest of us to "codger out." Maybe there could even be a warning for other motorists, with a flashing yellow light outside the car that alerts other drivers I have engaged "codger mode?" Think about it, hotels, car rental companies, and more could advertise their codger-friendly environments and products? It just ain't easy getting older.

Revisting the Obligation to Object

I received an email regarding a recent post. The post had to do with objecting to procedures, see Wondering Whether to Object. The bottom line of that Ohio case was essentially about preserving your record, and speaking up about procedures.

My correspondent provided a Florida case. It supported the "speak up" advice, but it also got me thinking about the history of this Office. I like to think that this "is not your father's" Office of Judges of Compensation Claims (a reference to a very old and unsuccessful ad campaign of a company since closed), and this decision from the First District Court supports that. 

In Jellison v. Dixie Southern Industries, Inc., 857 So.2d 365 (Fla. 1st DCA 2003), the Court was confronted with an appeal that raised two issues that the court decided "merit brief discussion." The first was staleness of the final order, and the second regarded a procedure by which the judge declined to prepare the final order and instead relied upon the lawyers to do that work for the judge. The laziness of asking the lawyers to do the judge's work used to be somewhat common in Florida workers' compensation, and was condoned by the appellate courts in cases like Dade County v. Turnbull, 572 So.2d 540 (Fla. 1st DCA 1990). 

The delay in Jellison was notable, though not the worst I have seen recorded. In this case, the trial occurred on August 20, 2001. The judge mailed a letter to both attorneys on March 13, 2002. The parties were instructed to each submit proposed orders within ten days. The Court noted that the Judge "made no oral findings at the conclusion of the hearing," and that the judge had "given no indication how she was going to rule."  

On April 18, 2002, two hundred and forty-one (241) days after the final hearing, the Judge entered the final order, which was then appealed. According to the Court, that order was "almost identical to the order submitted by the E/C." Incidentally, that coincidence was the same complaint raised by motions in Dade County.

On appeal, Jellison complained that the Judge's order was stale and that the findings were not supported by competent substantial evidence.  The Court reiterated that it "will not consider arguments which were not presented in a meaningful way to the lower tribunal." Any issues or arguments about an order being stale "must be preserved for appeal" by making an objection. Similarly, concerns or issues about the content of such an order should be raised with the judge issuing the order. The Court explained that such objections can be "filed at any time." 

The Court footnoted that final orders are "clearly" to be "issued within 30 days of completion of the hearing." It noted that this particular judge at that time had "several cases" before the Court in which "untimely letters to both parties" had been similarly utilized. And it cautioned regarding the harm that such "proposed" orders could work, saying that "signing a proposed order without any significant changes in situations where an inordinate delay has occurred creates the impression that lawyers are deciding cases rather than the judges." 

All valid points. In the 2006 OJCC Annual Report (p. 31), we acknowledged that 42.4% of final orders were not issued within the statutory 30 days. The longest period between trial and a final order issued in 2006 was 1,323 days, which is over three and one half years. That time period makes the 241 days in Jellison seem perhaps a mild delay by comparison. The 2016 OJCC Annual Report (p. 36) provided contrast. It noted that in 2006-07, the longest period between trial and entry of the final order was 2,911 days, which is about eight years. But, for 2015-16 only 12% of final orders were not entered in 30 days. And, the longest time between trial and order that year was 278 days.  I see that 278 days as unfortunate but a vast improvement from the 2,911. 

I am not aware of any Florida Judges of Compensation Claims who are currently not preparing their own final orders. And the timeliness of final orders has improved dramatically since 2006. This "is not your father's" Office of Judges of Compensation Claims. The credit for these improvements goes to the judges who preside in the 17 districts around the state. They are moving cases to trial and entering timely final orders. They are not to my knowledge adopting orders prepared by lawyers any longer, and thus this system is avoiding any "impression that lawyers are deciding cases rather than the judges." 

Jellison reminds that it is important to speak up about process and procedure. If there is something occurring in a case, it is up to the parties to file or voice an objection. This affords the assigned judge the opportunity to consider such objections, and potentially to ameliorate or eliminate prejudice or harm by altering process or procedure. And, Jellison reminds us that the "good old days" may not have been quite as rosy as they are sometimes remembered. 

In Florida today, we have a great many attorneys who may not remember the long delays waiting for orders. They may not have ever experienced a judge who cajoled or coerced the filing of "timeliness waivers." And it is important that we recognize that our Judges today are doing the job of hearing their issues and preparing timely orders. If this is not your experience, please email me, david.langham@doah.state.fl.us.

Notice and Opportunity to be Heard

A recent Missouri WorkCompCentral story attracted my attention, Court Reverses Order Directing Payment of Attorney Fees Into Attorney's Trust. It reminded me of the classics of due process in American jurisprudence, notice and the opportunity to be heard. It also reminded me that in some instances, there is no time like the present. 

Due process is a comprehension challenge for many people. It is one of those legal catch-phrases that are often bantered on the television, but unfortunately too often not really understood. I have had many a conversation with lawyers that made me wonder whether they missed that day in Constitutional Law class. 

Due process can be perplexing. When I teach Constitutional Law, I find that students are persistently eager to quantify things. They want to know "how much" due process. Or, as I rephrase that question "when evaluating due process, how much process is due?" A fair question. But unfortunately (or not), it is a question not capable of a very definitive "quantifying" answer. The best answer, as much as many hate it, is "enough." There should always be enough due process. 

When confronted with that answer, the student almost always objects. This answer for them is to vague, indefinite, and unfulfilling. We all seem to like concrete answers (at least when we are doing the asking). But, "enough" is the correct answer. If we are accused of some petty infraction, we might find ourselves deprived of the right to engage in discovery before trial. Some would argue that is a denial of discovery denies due process, but the courts weigh the right to due process against the potential for harm. In a petty infraction, we may legally receive less process than if we were accused of a capital offense. 

Back to Missouri. In this case, an injured worker sought benefits for permanent total disability in 1996. The trial judge ordered Missouri's "Second Injury Fund," or "SIF," to pay those benefits and imposed a lien against the benefits to pay the attorney that had represented the worker in the litigation. 

The attorney was over sixty years old at the time. Twenty years later, now over eighty years old, the attorney filed with the Commission and asked that the SIF pay those ongoing fee deductions to the attorney's living trust if the attorney happened to pass before the injured worker. Age has a way of intruding on our thoughts sometimes.

The Commission responded with the first crucial element of due process, notice. When there is to be an action that might affect the rights of parties to litigation, it is imperative that the parties have notice of that fact and of any hearings or proceedings that might affect the outcome. The Missouri Commission sent notice to "all the interested parties and requested a response within 30 days if anyone objected."

No objections were filed, and so "the commission issued the requested order." The injured worker thereafter objected to the order "roughly two weeks later." She explained that she did not receive either the notice or the order, until after the order was entered.

The injured worker's objection to the order was denied. The Commission's denial order explained that the first order did not decide whether fees would be due following death; the order merely said that if fees were due pursuant to the 1996 order, then those fees would be paid to the living trust. 

The injured worker appealed, and the attorney "died at the age of 87 while her appeal was pending." (Remember that "no time like the present" thought?) The Court reversed the Commission, because of the allegation of no notice being received. That does not mean that someone saying they did not receive notice will be the end of an analysis. The Court explained that the Commission should have listened to the injured worker's objection, and determined whether her allegations of no notice were true. 

Just saying you did not receive notice is not alone sufficient, that statement has to be believed by the tribunal. The tribunal cannot skip the step of determining credibility and deciding whether such an allegation is true. Therefore, in many instances such as this, a hearing may be required so that the judge or commission can view testimony first-hand and decide to believe or disbelieve the objection/allegation of no notice. 

Because the Missouri Commission failed to do so, the appellate court concluded that the order directing payment to the living trust should be reversed. This outcome leaves uncertainty for the parties, one of whom is now dead and dependent upon someone else to prosecute his claims. 

It is likely that the SIF paid fees to the living trust, following the attorney's death but before the appeal was decided. Will that money be refunded to the SIF for payment to the injured worker or to hold until further proceedings are held to determine entitlement to fees? 

Is the living trust or the estate entitled to fees from the ongoing permanent total disability benefit payments from the SIF despite the death of the attorney? It seems that would have been a good question to have posed and gotten answered back in 1996. (Remember that "no time like the present" thought?) Of course, we all doubt our mortality and when you are only sixty-something you likely feel you have many days left. Life expectancies have just improved so much in recent decades, and frankly no one likely wants to think of their own death. But, death is unavoidable, and you just never know. 

As Florida enters an era in which such fee arrangements might become more prevalent, see Miles v. City of Edgewater, 190 So.3d 171 (Fla. 1st DCA 2016), there might be similar issues. Attorneys may wish to trend toward addressing issues such as attorney demise, estate rights, etc. in drafting such agreements. 

It is possible that the attorney's estate might now litigate further regarding this attorney fee entitlement. It is possible, when an attorney passes, that there might be any number of similar ongoing obligations that could require attention. Regardless of context, attorneys and others should consider how liabilities and promises might be implicated by passing. To the extent those are considered and memorialized before passing, the burden on survivors and the estate might be minimized. 

But, the real point is that notice is critical to due process. How much process is due after that may be subject to debate, may be weighed against benefits/burdens, and may not live up to our subjective anticipations ("enough" to you may not seem "enough" to another). Despite perceptions of "enough," the notice is a must. Notice must be sent. When someone says notice was not received, there must be an inquiry. If an objection based on failure of notice is to be denied, there must be explanation of reason(s). 

Another OK Court Challenge

Oklahoma's workers' compensation system was back in the news recently. WorkCompWire reported that Governor Fallin named Megan Tilly to replace Robert Gilliland as Chair of OK's Workers' Compensation Commission. That appointment has been challenged in a lawsuit. WorkCompCentral has reported that an earlier (last year) Fallin Commissioner appointee, Jordan Russell, has been similarly challenged in a lawsuit filed by another "claimant's attorney." 

In October 2016, Governor Fallin reportedly requested current Chair Gilliland's resignation. Commissioner Gilliland declined to resign, but there was conjecture then that he would not be reappointed upon expiration of his term in 2017. That conjecture has come true. 

It is fair to say that Oklahoma's workers' compensation system has been challenged in recent years. Their statute was amended significantly in 2013. The most news-grabbing element of that legislation was the now famous Oklahoma Opt-Out, but other changes were also significant. Until 2013, Oklahoma workers' compensation benefit disputes were heard by a court system. In the 2013 reform, the legislature revamped that process, phased-out the court system, and transitioned to an administrative hearing process. 

The structure adopted in 2013 is not dissimilar from several other states. The Oklahoma workers' compensation system is now managed by three Commissioners. They are responsible for the regulatory system, including issues like carrier reporting, participant compliance, litigation rules and more. The Commission also hires and manages administrative law judges (ALJ), who have taken over the adjudication of disputes from the old court system (now called the "Court of Existing Claims"). And, the three Commissioners are also the primary appellate body, reviewing the decisions of the ALJs, which might thereafter nonetheless be appealed to the state courts. As with some other systems, there is no requirement that these (effectively) appellate judges/commissioners have any legal training whatever. 

Last year, when the Gilliland resignation was requested, the attorney now challenging Ms. Tilly perceived a "separation of powers problem" with Fallin's request, according to WorkCompCentral. At that time, there was some perception that Gilliland was being forced out "because of a decision by the commission." While the decision was not identified in either Fallin's resignation request or in Gilliland's response, many reportedly presumed that the dispute revolved around the Commission decision in Vasquez v. Dillards. The challenging attorney found Executive Branch management by the elected chief executive troublesome 

Vasquez was notable for two reasons. First, the Commission concluded that it, the Commission, acted as a "state court of competent jurisdiction." In the vast majority of jurisdictions, administrative bodies are not "courts," and therefore lack the inherent authority to make determinations regarding constitutional challenges. But, the Commission in Vasquez found such authority for itself in Oklahoma Statute 85A O.S. 211, which says:

Commission shall act as the court of competent jurisdiction under 29 U.S.C.A. § 1132(e}(l) and shall possess adjudicative authority to render decisions in individual proceedings by claimants to recover benefits due the claimant under the terms of the claimant's plan to enforce the claimant's rights under the terms of the plan or to certify the claim as right to future benefits under the terms of the plan. (Emphasis added).

Some may have viewed that Commission conclusion skeptically, but any tribunal always has the authority to decide whether it does or does not have authority or jurisdiction. In that regard, the Commission acted within its authority. After deciding that it had the authority to act, the Commission held that the 2013 Oklahoma Opt-Out was unconstitutional. Both of those conclusions were later affirmed by the Oklahoma Supreme Court, removing any doubt as to the Commission's authority; the authority to "act as" a court. 

The Oklahoma attorney challenging Commissioner Tilly has now filed a lawsuit, according to the Oklahoman. His legal challenge is statutory, but according to the Oklahoman, his motivation in challenging Tilly is that she "is the daughter of Fred Morgan, who is president of the Oklahoma State Chamber," who "helped write the 2013 workers' comp law." Because of that relationship, the attorney purportedly perceives a "a conflict of interest," and he believes the Oklahoma courts should intervene to preclude her appointment. In short, he disagrees with the law and decries Commission leadership by one so close to an author of that law.

Regarding last year's resignation request, the same attorney reminded WorkCompCentral of the Oklahoma Supreme Court affirmance of Vasquez, and the logic that "commissioners 'perform an adjudicatory function in deciding the fate of injured workers' benefits.'" Because of that authority, this attorney asserts that the Commission must be "treated as a court." He therefore asserted in 2016 that Governor Fallin's request threatened the very fabric of the law, the constitutional construction of government, the separation of powers. He perceived that gubernatorial request as the Oklahoma executive branch encroaching upon the courts, an independent branch of government (if they are to be "treated as a court," in his mind they must actually be a "court"). 

The actual statutory (legal) basis of this attorney's challenge to Tilly's appointment is in section 85A-19, which provides 

The Commission shall consist of three (3) full-time commissioners, each of whom must have been involved in the workers' compensation field for at least three (3) years, appointed by the Governor: one of whom is chosen from a slate of three selected by the Speaker of the House of Representatives, with all three confirmed by the Senate. 85A OK Stat § 85A-19 (2014). (Emphasis added).

The challenging attorney contends that Tilly lacks the three years required. According to Governor Fallin's appointment announcement, Ms. Tilly has been an assistant attorney general, and for more than three years she has managed "the attorney general’s multicounty grand jury unit." Furthermore, she has "assisted the workers’ compensation, insurance and Social Security fraud unit of the attorney’s general’s office." That experience with the criminal system, as it involved insurance and workers' compensation, is the foundation of her qualification under the three year requirement. This challenge is similar to the Commissioner Jordan Russell challenge; his workers' compensation experience is through work for the OK legislature. 

The challenging attorney essentially seeks a judicial interpretation of "involved." The legislature did not define what it meant by "involved." Merriam Webster defines "involved" simply as "being affected or implicated." In the absence of some statutory definition of "involved" it is likely that Oklahoma's courts would turn to this ordinary definition. And so, perhaps the question will simply be whether Ms. Tilly was "affected or implicated" by workers' compensation for three years. That does not seem to be an exceptionally difficult standard. Some might argue that if the legislature intended a more demanding standard, it could have used a word other than "involved," or defined its intent for that word. For example, Florida Judges are required to be "knowledgeable in the practice of law of workers' compensation." Perhaps that is a more stringent standard, perhaps not. 

An interesting aspect of this Oklahoma lawyer's challenge is the attorney's perception of a separation of powers issues with the Governor's management of the Commission last year. The attorney contended then that the Governor, Oklahoma's chief executive, should not manage an Executive Branch agency, because it "acts as" a court. The argument seems to be that if it "acts as" a court, then the state's court system should exclusively supervise and manage it. No statutory authority for that conclusion has been located. Neither has any authority been found that a legislature cannot contrive an executive agency as it deems appropriate, short of some constitutional constraint. Whether it can create a court is up to the constitution, as is whether it can delegate authority to "act as" a court. But, neither of these seem to be the foundation of this challenge. 

In this current lawsuit this attorney is asking that the Oklahoma Courts actively interfere in that executive branch management. This is premised presumably on the "treated" or "act" language. That is, if it is treated or acts like a court, it must in fact be a court and subject to exclusive management of the state's court system, immune from the management of the Executive Branch. 

Executive Branch agencies like the Oklahoma Commission are created by statute in most instances. The statute alone provides the qualifications ("involved") for appointment, and the applicable "check and balance." The statute does not provide for judicial approval or interpretation of qualifications, although one might argue that interpreting statutes is what courts are inherently designed to do. The statute, through which the Oklahoma Legislature created the agency and conveyed authority to it, however, provides a "check and balance" in its plain language. The Governor's appointments to the Commission are subject to confirmation by the State Senate. 

Some will therefore argue that the legislature has thus created a process, which provides minimal definition ("involved"), and leaves interpretation of that to the executive. The Oklahoma courts may therefore decline jurisdiction over this attorney's challenge to Commissioner Tilly, concluding that this is an issue of Gubernatorial discretion. That outcome is perhaps even more likely because of the statutory Senate confirmation requirement. The statutory process for appointment involves part of the body (legislature) that granted authority (delegated), in interpreting that standard ("involved"). The Governor seemingly decides whether someone is qualified, and then that conclusion must be concurred by the legislature that granted the authority.

Thus, the legislature may make a decision that it agrees or disagrees with the Governor. The interpretation of what the legislature meant by that statute("involved") can be made by the legislature itself. This is arguably like asking me (legislature) to tell you what I meant in that last paragraph, instead of you asking your cousin Bernice (courts) what she thinks I meant. WorkCompCentral reported May 16, 2017 that the Oklahoma Senate Judiciary Committee recently voted to confirm Tilly and Russell. Presumably, that vote evidences the Senate's concurrence that Ms. Tilly is qualified under the statutory standard. 

Is it inappropriate for the State's chief executive to manage executive branch agencies? Is it more or less inappropriate if such an agency looks or acts like a court? By the same logic, is it inappropriate for a court to substitute its judgment of qualification for the judgment of that chief executive, and/or the judgment of the State Senate? Is separation of powers about the three branches themselves, or is it about how the subdivisions of the three branches act or look? If the state begins to allow judicial second-guessing of appointment processes in the Executive Branch, as advocated here, where will that court involvement end. Is that court involvement itself not a significant threat to the same separation of powers the challenger relies upon?

It is probable that any court action regarding this challenge will not conclude prior to the expiration of Chair Gilliland's appointment in August. The potential effects on this system may be interesting. Potentially, this challenge could impair, or at least cast shadow upon, the Oklahoma workers' compensation adjudication system for some time, as the "involved" issue is litigated. 

As likely, the courts will recognize the real separation of powers and decline to adjudicate the qualification issue, concluding that this is an executive branch management decision, subject to Senate approval that has been provided. Or, alternatively, that upon the concurrence of the Senate in these appointments, the issue has become moot. For the sake of all involved, challenged and challenger, hopefully the state's courts will render any decision in this case rapidly. 

UPDATE: on June 8, 2017 the challenger dismissed his petition for writ of prohibition. Tilly's Senate confirmation stands, and she will take office in August, according to the Executive Director of the Oklahoma Commission.

Judicial Ethics and "The Great Pumpkin"

A story from Arkansas, with absolutely no connection to workers' compensation, caught my attention. It addresses one of the "third rails" of American discord, which need not be a distraction to the real issue: judicial ethics. Charles Shultz, celebrated cartoonist and humorist, once said “There are three things I have learned never to discuss with people... Religion, Politics, and The Great Pumpkin.” For the sake of having a conversation about judicial ethics, rather than about the underlying themes or disputes, this post will therefore be about "The Great Pumpkin" (the reader is cautioned that this author takes no position either way with the Pumpkin, it's/his/her actions or inactions, beliefs or perceptions. Your mileage may vary; use only under adult supervision, etc., etc.) 

The issue came to my attention recently with the publication of Impeachment Talk Expands Fight over Arkansas Judge. Let's just say that (hypothetically) there was a lawsuit involving various allegations regarding The Great Pumpkin, and a trial judge was called upon to make rulings. A near-constant in the world of litigation is that in every litigation someone will always be unhappy with the facts, the law or the judge (sometimes all three). I cannot think of a single case I have decided in which all parties left happy. 

Having made a ruling regarding The Great Pumpkin, this judge doffed his judicial robes and left the courthouse. He was photographed soon thereafter at a protest to save The Great Pumpkin. It seems likely that this Judge knew he would be spotted at the protest, it occurred outside the Governor's mansion, was well attended, and apparently the news media present was not incognito. It appears that the Judge knew of his participation in The Great Pumpkin demonstration when he made the ruling.

And there is the rub. A judge charged with being the impartial arbiter of this Great Pumpkin dispute is then seen at a protest taking a seemingly partisan side in the public protest regarding The Great Pumpkin. Thus are raised questions of judicial ethics, the Code of Judicial Conduct, and for at least some the potential for impeachment of this judge.

First, this occurred in Arkansas, not in Florida. And as such, the inquiries will revolve around the Arkansas Code of Judicial Conduct. But, my experience is in Florida, and thus my thoughts wander in that direction. A few provisions of the Florida Code of Judicial Conduct that might apply here to a similar issue are:

A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge's Activities, Fla. Code Jud. Conduct, Canon 2

A judge shall not allow family, social, political or other relationships to influence the judge’s judicial conduct or judgment, Fla. Code Jud. Conduct, Canon 2B

Judge shall act at all times in a manner that promotes confidence in the integrity and impartiality of the judiciary, Fla. Code Jud. Conduct,Canon 2A.

A judge shall disqualify himself or herself where his or her impartiality might reasonably be questioned, Fla. Code Jud. Conduct, Canon 3E(1).

A judge should disclose on the record any information that he or she believes the parties or their attorneys might consider relevant to disqualification, even if the judge believes there is no real basis for disqualification, Fla. Code Jud. Conduct, Commentary to Canon 3E(1).

A judge or candidate for judicial office shall refrain from inappropriate political activity, Fla. Code Jud. Conduct, Canon 7.

These are each mandatory constraints ("shall") upon judicial conduct. The judge is not merely to avoid impropriety, but even the "appearance of impropriety" in "all activities." If the Judge is adamant about protesting in support of The Great Pumpkin, the judge "shall" disclose on the record if there is information the parties "might consider relevant" (emphasis added). If impartiality "might reasonably be questioned," then the judge "shall" disqualify himself/herself. 

It appears that Arkansas' Supreme Court has concluded that there are questions that require inquiry. According to one source, it has referred the judge to the Arkansas "Judicial Discipline and Disability Commission to determine whether he violated the Code of Judicial Conduct." And in the meantime, there has reportedly been mention of impeachment in both Arkansas legislative chambers.

The Judge involved, however, couches his participation in the practice of religion. He contends that he has every right, despite his chosen profession, to practice his religion as he deems appropriate. He reportedly said:

Whether I attended the Good Friday vigil or not does not change property law,

Whether anyone approves or disapproves of me attending the Good Friday vigil does not change property law.

Whether I support or am opposed to (The Great Pumpkin) does not change property law.

I am entitled to practice my religion — whether I am a judge or not — even if others disapprove of the way I practice it.

The freedom of religion is of course guaranteed in the First Amendment to the U.S. Constitution. The same guarantee applies to the freedom of speech. American courts have repeatedly held, however, that the acceptance of a judgeship is also an acceptance of limitations on freedoms, particular that freedom of speech. The inclination to ignore that in this instance may be impropriety or at least the appearance of it is troubling. It is likely that this demonstration participation violated the Code; it was political activity and undoubtedly would cause any reasonable person to potentially doubt impartiality.

However, a broader question is presented. Even if one concludes that a judge has a right to protest, for a religious or secular purpose, there is potential for concluding that this judge violated the Code. Even if one concludes that such demonstration in a politically charged moment, regarding someone as polarizing as The Great Pumpkin, is not impropriety or the appearance of impropriety, there is potential for concluding a violation of the Code. Even if one concludes that participating in a demonstration outside the Governor's mansion is not "inappropriate political activity," one still might find a violation of the Code.

This judge was allegedly planning to attend this Great Pumpkin demonstration. The Judge knew of his intended expression of opinion or belief when the Great Pumpkin motion landed upon his desk earlier that day. He did not inform the parties ("disclose on the record") such that the parties could seek a transfer to a different judge. And, he did not "disqualify himself or herself where his or her impartiality might reasonably be questioned." 

If my plumbing leaks or my air conditioner fails, I have every right to have that repaired. That is my business. But, if someone appears before me in a case involving the plumber or technician I hired, every party to the case is entitled to know that this plumber or technician is someone with whom I have done business, or with whom I have a relationship outside the case. That disclosure must come from the judge. 

Or, knowing of the potential for various perceptions, the judge should simply remover her/himself from the case and let someone else preside. This case is simply not about whether we have a right to repair our plumbing, or how we feel about The Great Pumpkin. This case is about the "appearance" of impropriety. 

It is possible that this Judge did disclose his Great Pumpkin perceptions and beliefs. Perhaps the parties waived any objection they might have had. If they did, then this situation is perhaps in part on them. But, only if the judge clearly and completely disclosed his feelings about The Great Pumpkin and the parties made a fully-informed and voluntary waiver. If that were the case, the Judge should say so immediately instead of espousing the justifications quoted above. 

In the process of apparently not doing so, this judge has exposed the legal system and the judiciary to criticism. There has been reaction, accusation, and recrimination. The system will now devote resources to investigation of the actions or inactions, and the implication of the Code. All of which might have been saved had the judge merely elected to disqualify himself and leave that Great Pumpkin decision to another adjudicator. 

For what reason would he not? Surely there are many qualified and available judges in Arkansas to undertake the decision he chose to undertake? Surely, the judge knew some might see an appearance of impropriety in his presiding and then protesting? Judges must follow the Code. If there is a conflict, the judge should recuse (voluntary disqualification), or at a minimum disclose the full scope of the conflict to the parties for their information and consideration. It appears that the Judge here did neither, and the judicial system suffers for it.

Inflation and Legislative Budgeting

The 2017 Florida legislative session ended in May. It was an eventful 60 days this year, with significant discussion of workers' compensation litigation, filing and attorney fees. I summarized to the best of my ability in The 2017 Session is Ending, Turn out the Lights the Session is Over, and The Return of Discretion, One Way or the Other. Shortly after the session ended, the Florida First District reversed the trial decision in Fee v. NCCI and OIR. And so the debate of workers' compensation may be over until 2018.

But there has been discussion about a special session. It is said that a session in June is possible. The Orlando Sentinel reports recently that medical marijuana is a topic being discussed. But, also in the limelight is the state budget, which was presented to the Governor last week. The Sentinel reports that the Governor was "under intense pressure" to veto all or some of the education budget. There have been news reports of other interest groups and their qualms about the 2017-18 budget. On June 2, 2017, the Naples Daily News announced a special session has been called for next Wednesday through Friday, to address budget compromises between the Legislature and Governor.

In May, the Palm Beach Post reported that the 2017-18 budget includes a pay raise for many state employees. It would take effect in October and 

for most workers, would provide a $1,400 raise for workers earning less than $40,000 a year and a $1,000 raise for state employees earning more than $40,000.

Not to look a gift horse in the mouth, I am thankful for this recognition of the job that is done by so many in this agency. Pay raises have been rare in recent years, but inflation has not. It is also worth mentioning that back in 2013 state employees began contributing to the pension system. That change reduced take-home pay by 3%. 

The budget does not treat all employees the same. It has a 5% increase for "Rank-and-file law enforcement officers," which is effective in July instead of October, and a 6% increase for assistant public defenders, also effective in October. These groups are certainly deserving of increased compensation, they are difficult occupations to be sure. 

But for all of the elected State Attorneys and Public Defenders, Supreme Court Justices, Appellate Judges, Circuit Judges, and County Judges there is a 10% pay increase included. In effect. every judge in the state would be paid significantly more under this budget except those judges in the Executive Branch. Judges of Compensation Claims and Administrative Law Judges in the Division of Administrative Hearings would instead receive the same $1,000 raise discussed above. For clarity, I repeat that every judge in the state except the Division of Administrative Hearings judges will receive a 10% pay increase. 

In the early 1990s there was a provision in Chapter 440, F.S. that set the salary for Judges of Compensation Claims. It did so by stating that effective in 1989 JCCs would be paid "$4,000 less than" the salary of "a circuit judge." Section 440.45(4), F.S. (1991). That requirement, called a "tie-in," was removed in 1994. In the 1989-90 fiscal year, Florida trial judge salaries were: Circuit Judges $84,359; County Judges $75,345, and JCCs $79,359 (I know that looks a lot more like a $5,000 difference than a $4,000 difference).

What has happened in the decades since that time has diminished the salary of a Florida JCC markedly. If that 1989-90 JCC salary had kept pace with inflation, the JCC salary in 2016-17 would be $151,267. But, the actual salary is $123,564 (to increase to $124,564 next year under the budget as passed). That is a difference of $27,703. JCC's effective salaries have decreased 18% in the last 23 years. 

Judges in the constitutional court system have better kept pace with inflation. The 1989 Circuit Judge salary of $84,359, adjusted for inflation would have been $160,797. That is considerably more than the Circuit Judges were paid in January 2017 ($146,080), but it is very close to what they will be paid after their October 2017 pay raise ($160,688). The 1989 County Judge salary of $75,345, adjusted for inflation would have been $143,616 in 2017. That is less than the County Judges actually earned in 2017, which was $138,020. It is fair to say that Circuit Judges have come close to remaining steady with inflation and County Judges have done better. 

This figure illustrates the effect from elimination of the "tie in" for JCC salaries. JCC earnings have stagnated, and inflation has taken its toll. In 1989-90, a JCC earned $5,000 less than a Circuit Judge, and in 2017-18 the JCC will earn $36,124 less. In 1989-90, a JCC earned $4,000 more than a County Judge, and in 2017-18 will earn $27,258 less. JCC salaries have been flat, or very close to it, for ten years. 

And, these figures only address the compensation for Judges of Compensation Claims. The current methodology for calculating pension benefits is somewhat complex, based upon years of service and pay figures. There is a multiplier figure that is also included in that calculation, and JCCs pensions are based on 2% of their earnings, while other judge's are based on 3%. It is another example of inequity in the compensation of Executive Branch judges. 

In 2016, The Florida Bar produced a detailed study of the practice of law in Florida. According to its findings, a "partner, shareholder, or member" of a law firm had a mean (sum of all respondents, divided by volume of respondents) between $130,773 and $202,397. depending on region of the state (the average of these two averages is $166,585). The JCCs in Florida are not earning what the "average" or "mean" practicing law partner earns ($166,585). In fact, they are earning $43,021 less. According to an American Bar Association study, they are not earning the median starting pay for associate attorneys in the United States, $135,000.00, though that figure includes many very expensive markets. 

The JCCs and ALJs are exceptional people. I have been privileged to serve with many over the years. I know their work ethic, intelligence, dedication, and spirit. I have no doubt that they could earn those averages and more. I also know that they do not serve for financial gain. They are public servants who dedicate themselves to a better Florida. Though they are driven by motivations beyond money, it it would make sense to recognize their efforts. 

A 10% pay raise for the JCCs would increase pay from $123,564 to $135,920. That would be nowhere near the $151,267 that the 1989-90 salary would be if it had kept pace with inflation. That would be nowhere near the $156,688 that JCCs would earn if the "tie in" had been left in place. In fact, that would barely bring the JCCs above the lowest average of "partner, shareholder, or member" the Bar found in 2016 ($130,773). 

But, it would certainly say a great deal about the value seen in the dedicated and devoted public servants that are Judges of Compensation Claims and Administrative Law Judges. Even better would be a restoration of a "tie in," so that such a disparity does not creep back in over future decades. But, at a minimum, the State of Florida should not treat the JCCs and ALJs differently than all the other judges in Florida. 

And, the legislature would not need tax revenue to make the change. The Florida Office of Judges of Compensation Claims does not use tax money, any tax money. All of the funding for this Office comes from the Workers' Compensation Administrative Trust Fund, which in turn is funded by assessments on the workers' compensation industry whose disputes the JCCs adjudicate. Providing the JCCs with a 10% raise commensurate with other Florida Judges would cost less than $500,000. Restoring the JCCs to the "tie in" range of the past (Circuit less $4,000) would require about $1 million; none of it tax dollars, all of it long overdue. And either figure would have minimal impact on either the Trust Fund balance or the assessments needed to maintain it. 

This year or next, special session or regular, the subject of compensation for these public servants should be a priority. There will be those who argue that others in the executive branch (attorneys, mediators, clerks and more) should likewise not be ignored. There are likewise good arguments for those employees, and that discussion is worthy as well. 

Don't Double Down Dummy!

The California State Bar Court hears complaints against attorneys. It has the authority to make recommendations to the California Supreme Court regarding punishment. Last September the Bar Court heard a case involving an attorney and recommended a suspension. The situation was interesting to me for a couple of reasons.

First, that there is a "Bar Court." Florida does not have one. I found that paradigm intriguing. I was relieved when my research revealed that California is the only state with such a court. It is always a relief to know that Florida is not an outlier. That does not mean that our process is the "best practice" just because it is more similar to a majority of states, but it is somewhat reassuring to know Florida is not unique.

But the main the order was interesting is that it involved "making statements that 'intentionally deceived' the Workers’ Compensation Appeals Board," according to WorkCompCentral.

The Bar Court noted that the disciplinary hearing was this particular attorney's third. Historically, some perceive a tendency towards leniency in some "first time offender" proceedings regarding attorney conduct. Some question whether egregious behavior would occur less frequently if the Bar more strictly dealt with the first offenders. 

In this case, the attorney was representing "two defendants" in a workers' compensation proceeding "before the Workers' Compensation Appeals Board (WCAB or Board)." The Board is the first level of appellate review of workers' compensation trial judges in California. The outcome of the proceeding was not positive and the Board imposed sanctions regarding the conduct of four attorneys at this particular attorney's firm. The Bar Court concluded that the subject attorney had been dishonest with the Board to the extent of it being "moral turpitude." The Court noted three aggravating factors: prior disciplinary proceedings, "significant harm, and lack of insight." Two mitigating factors were "cooperation and good character."

The attorney's defense, in the Bar Court, asserted that the attorney "made no misrepresentations," but was "merely zealously representing her clients." The Court disagreed and concluded that the attorney was "culpable of acts of moral turpitude." And, that "the problem was not that the attorneys zealously represented their client; it was that they did so by misleading the WCAB, by concealing material facts, and by supporting their position with half-truths," fairly damning conclusions. 

The Court noted that this attorney had exhibited "repeated acts of dishonesty," and that this behavior was similar to "earlier dishonesty before a bankruptcy court." The Court noted that this attorney "committed multiple probation violations and failed to appear at her probation revocation hearing." The attorney exhibited "a lack of insight into the seriousness of her misconduct." And, this was not a young and inexperienced attorney; she was "admitted to the practice of law in California" in 1993. She was a leader of a law firm. 

In the trial and Board proceedings, the employer/carrier repeatedly sought appointment of a medical examiner. The requests had been declined as they were incomplete and therefore not ready to be processed. In seeking a continuance of trial, the attorney "represented that the Defendant had made 'a timely and proper request for the issuance of a QME panel'" but that this had not been appointed. This was presented as argument in support of continuance, that the state had failed to perform its responsibility in assigning a panel, and that this failure was prejudicing the employer/carrier. 

The trial judge denied the continuance, and there was an appeal to the Board. The Board reversed the trial judge and granted the continuance, relying on the representations of this attorney. The Bar Court noted that the disciplined attorney did not prepare or sign the pleading that made these QME allegations, but that she knew of the representations and their falsity. Knowing them to be false, she did not inform the Board of the falsity, but "remained silent." 

Thereafter, the state "Medical Director filed a verified Petition for Reconsideration" in response to the WCAB continuance decision. This "disclosed that the Medical Unit had in fact timely responded" to each request, including granting the third request. The Director asked the WCAB to withdraw its order claiming it "was procured by (the) defendant by fraud," and "[t]he evidence does not justify the findings of fact." At that point, the facts were apparently reasonably clear. The attorney might have conceded to an error at that point and moved on. 

Instead, the attorney filed an answer to the Director's petition and denied any misrepresentation had been made. The Court noted that "the majority of her answer involved criticizing the Medical Director's attorney." The misrepresenting attorney even asked for sanctions from the Medical Director. Faced with a mistake or misstatement, this attorney went on the attack. 

In August 2010, the WCAB concluded that the attorney had "misled" the Board to obtain the continuance. Though the statement regarding issuance of a medical panel "were literally true, those statements were deceptive." The Court concluded that through the failure to inform the WCAB of the true facts, the attorney "painted an incomplete and distorted picture." The intent and effect of that distortion led to the WCAB's order that reversed the trial judge and continued the case. 

The WCAB concluded that finally in September 2010, the attorney first "disclosed the complete procedural history of the" various requests for a medical examiner (QME) panel. The attorney nonetheless argued that her earlier failure to disclose the full facts was "not at issue" and so excusable. The WCAB labelled the attorney's effort at that stage as "unapologetic and defiant." It concluded that it had been "deceived and had taken unjustified action (reversing and continuing) based on that deception." The Board specifically noted that the attorney "took no steps to enlighten us." and then "responded with hostility when the" facts were raised. 

The California Bar and Court expended significant effort in this matter. There was a four day trial regarding the allegations of misrepresentation. The Court noted that the Board was in the best position to decide if it was deceived. It therefore gave "a strong presumption of validity to this finding." 

The Court concluded the attorney was indifferent to her actions. She had previously made other misrepresentations to a bankruptcy court, and was under discipline for that action at the time this matter was heard. The Court found her "unapologetic and defiant." And, suggested that her lack of insight might signal a significant risk of recurrence of misconduct.

The Court noted the disciplinary trial judge's recommendation for an 18-month actual suspension (apparently there is a suspension that is merely "theoretical" in California) and acknowledging this sanction was "at the severe end of the disciplinary continuum." However, the Court nonetheless accepted the recommendation and imposed it. The attorney will also have to provide proof "of her rehabilitation, fitness to practice, and learning and ability in the general law;" she must comply with the Bar rules during her probation, meet with a probation deputy, and "submit written quarterly reports to the Office of Probation. Finally, she must complete the State Bars Ethics School. Overall, a significant interruption of the attorney's professional livelihood.

The Court was persuaded by the fact that the behavior before the Board "occurred over many months;" that it continued "after the Board warned (her) that she was wading into deep ethical waters," and that when facing possible sanctions," the attorney "pressed on, essentially doubling down on her efforts to justify her conduct." Her defense went "beyond tenacity to truculence."

The simple fact is that people make misstatements all the time. Human beings are fallible and imperfect. It is not uncommon for those mistakes and errors to be brought to our attention, as the misstatements in this case were. When confronted with a mistake, it is advisable to accept it, and to own it. The outcome for this attorney might have been totally different had she had not "pressed on. The lesson is that mistakes are inevitable, thought we strive to avoid them. 

In this instance, the attorney might have

Admitted that the written pleading was error at the trial level. 

Accepted the trial judge's denial of the continuance (not filed a Board appeal).

Admitted the error when the Medical Director filed the verified petition.

Responded to the verified petition with explanation rather than attack.

But, it appears from the Bar Court findings and conclusions that at each stage the attorney was entrenched and on the offense. The fact that misstatements or mistakes were made was ignored, and instead the attorney "doubled down" instead of accepting responsibility. 

When a mistake is revealed or noticed, the appropriate action is to accept it, correct it, and apologize for it. The course of pridefulness and "doubling down," the transition from "tenacity to truculence" is unlikely to work to our benefit. Sometimes admitting a mistake and regrouping may be embarrassing and uncomfortable, but it is better than responding with an attack. Admitting and regrouping is what professionals do. Acceptance of responsibility and contrition may go a long way in dealing with mistakes and misstatements. Step up and own it, don't double down dummy.