Must a North Carolina lawyer give a Social Security ALJ a treating physician's letter that says the disability claimant is not disabled?

Plain-English summary

A lawyer represented a claimant for Social Security disability benefits at a hearing before an administrative law judge. Such hearings are considered non-adversarial because no one represents the Social Security Administration, but the agency develops a written record that is before the ALJ, and the ALJ may independently investigate the claim. Before the hearing, the lawyer asked the claimant's treating physician for a letter on the claimant's disability, and the physician responded that she believed the claimant was not disabled. The committee was asked whether the lawyer had to submit that adverse letter to the ALJ.

The opinion answered no. While disclosing adverse evidence and explaining why it should not be given weight is a hallmark of good lawyering, an advocate generally is not required to present facts adverse to the client. Rule 3.3(d) requires that, in an ex parte proceeding, a lawyer inform the tribunal of all material facts that will enable it to make an informed decision, whether or not the facts are adverse, a duty meant to correct the deficiencies of the adversary system where there is no opposing advocate (Comment [14]). But a Social Security disability hearing differs from a classic ex parte proceeding like a temporary-restraining-order application: there is a "balance of presentation" because the agency develops the written record before the ALJ, and the ALJ may make his or her own investigation. With no deficiencies of the adversary system to correct, the burden of presenting the case against disability should not fall on the claimant's lawyer (citing RPC 230).

Currency note

This opinion was issued in 1999, before North Carolina's adoption of the 2003 revisions to the Rules of Professional Conduct, and it cites the candor rule under the numbering then in effect (Rule 3.3(d) and Comment [14]), relying on prior opinion RPC 230. The candor provisions were renumbered and revised in later amendments. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement mentioned here.

Common questions

Q: Does a North Carolina lawyer have to volunteer evidence that hurts the client's case?

A: Generally no. The opinion held that an advocate is not required to present facts adverse to his or her client, outside specific duties such as the ex parte disclosure rule.

Q: Is a Social Security disability hearing an ex parte proceeding for Rule 3.3(d)?

A: No. The opinion held a disability hearing is not truly ex parte because the agency develops the written record before the ALJ and the ALJ can investigate, so there is a "balance of presentation."

Q: Did the lawyer have to submit the physician's letter saying the claimant was not disabled?

A: No. The opinion concluded that, because the hearing was not a classic ex parte proceeding, the claimant's lawyer was not required to submit the adverse physician letter to the ALJ.

Background and rules framework

The opinion applied North Carolina Rule 3.3 (candor toward the tribunal), the analogue to Model Rule 3.3, specifically the ex parte disclosure duty in Rule 3.3(d) and Comment [14], to a Social Security disability hearing. It relied on RPC 230 and on the distinction between a true ex parte proceeding and a hearing where the agency develops the record and the ALJ can investigate.

Citations and references

Rules of Professional Conduct:

• MR 3.3 (candor toward the tribunal) / NC Rule 3.3(d), Comment [14]

Other opinions cited:

• NC RPC 230: the burden of presenting the case against a finding of disability does not fall on the claimant's lawyer

See also

• ABA Formal Op. 98-412: Disclosure When a Client Violates a Court Order
• ABA Formal Op. 93-376: Client Lies in Discovery

Source

• Landing page: https://www.ncbar.gov/for-lawyers/ethics-and-governing-rules/ethics-opinions/opinions/98-formal-ethics-opinion-1/

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Inquiry:

Attorney represents Client, a claimant for social security disability benefits. Attorney files a request for an administrative hearing before a Social Security administrative law judge (ALJ). Social Security hearings before an ALJ are considered non-adversarial because no one represents the Social Security Administration at the hearing. However, prior to the hearing, the Social Security Administration develops a written record which is before the ALJ at the time of the hearing. In addition, the ALJ has the authority to perform an independent investigation of the client's claim.

Prior to the hearing, Attorney writes to the claimant's treating physician and asks for a letter stating the physician's opinion about the claimant's disability. In a responsive letter, the physician indicates that she believes that the claimant is not disabled. Does Attorney have to submit the adverse letter from the physician to the ALJ at the hearing?

Opinion:

No. Although it is a hallmark of good lawyering for an advocate to disclose adverse evidence and explain to the court why it should not be given weight, generally an advocate is not required to present facts adverse to his or her client.

Rule 3.3(d) of the Revised Rules of Professional Conduct provides, "[i]n an ex parte proceeding, a lawyer shall inform the tribunal of all material facts known to the lawyer which will enable the tribunal to make an informed decision, whether or not the facts are adverse." As one scholar notes, the disclosure "is required to correct the deficiencies of the adversary system." Wolfram, Modern Legal Ethics §12.7, at 678-679 (1986). Comment [14] to Revised Rule 3.3 also elucidates that full disclosure requirement in an ex parte proceeding is to assist the judge in making an impartial decision:

Ordinarily, an advocate has the limited responsibility of presenting one side of the matter that a tribunal should consider in reaching a decision; the conflicting position is expected to be presented by the opposing party. However, in an ex parte proceeding, such as an application for a temporary restraining order, there is no balance of presentation by opposing advocates. The object of an ex parte proceeding is nevertheless to yield a substantially just result. The judge has an affirmative responsibility to accord the absent party just consideration. The lawyer for the represented party has the correlative duty to make disclosures of material facts known to the lawyer and that the lawyer reasonably believes are necessary to an informed decision.

Nevertheless, a Social Security disability hearing should be distinguished from an ex parte proceeding such as an application for a temporary restraining order in which the judge must rely entirely upon the advocate for one party to present the facts. In a disability hearing, there is a "balance of presentation" because the Social Security Administration has an opportunity to develop the written record that is before the ALJ at the time of hearing. Moreover, the ALJ has the authority to make his or her own investigation of the facts. When there are no "deficiencies of the adversary system," the burden of presenting the case against a finding of disability should not be put on the lawyer for the claimant. See RPC 230.