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Industry Surprised by New Procedures

Workers' compensation professionals in NC were surprised by the Industrial Commission's sudden decision in September to no longer accept motion filings or motion responses from adjusters or insurance carriers on grounds these constitute unauthorized practice of law.

Documents the Commission will no longer accept from adjusters include Form 24s, and responses to Form 23s, Form 28Us and Form 18Ms, as well as motions to compel compliance, medical motions, or other pleadings requesting relief. Adjusters can still file partial settlement agreements or agreements on compensation such as Form 26As, Form 60s, Form 63s, and Form 29s.

"The Commission has stated that it worked with North Carolinas State Bar on this issue and ultimately concluded that such filings were the unauthorized practice of law," notes Bruce Hamilton, an attorney with Teague Campbell and legal advisor to the North Carolina Association of Self-Insurers.

"Normally, ethics opinions regarding issues like this are announced by the North Carolina State Bar in a proposed opinion, and interested parties are provided an opportunity to provide input. In this case, we are not aware of any proposed opinion from the State Bar addressing this issue, and input was apparently not sought from the defense bar or industry representatives. In addition, it is unclear who and/or what prompted the Commission and State Bar to address this issue at this time," he added.

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WorkCompCentral, an industry news outlet, quotes the North Carolina State Bar as saying the Industrial Commission did not seek its opinion. The State Bar says it did not rule on the issue, or concern itself in any way with the policy change.

"Our lawyer did not give an opinion. The State Bar has not interjected itself into this issue at all," says Katherine Jean, the chair of the grievance committee at the State Bar.

She told WorkCompCentral that if someone wishes to seek the State Bar's opinion on unauthorized practice of law, the procedure is to put the request in writing, which is then formally answered by the State Bar's Unauthorized Practice Committee. In the case at hand, she said the State Bar was telephoned by Brian Ratledge, the commission's attorney, who said he was not seeking a formal opinion but merely wanted to know if he was correct in his understanding that state law forbids adjusters to file form 24s and similar motions.

She said he was put through to an attorney but advised that the attorney's opinion would not constitute an official unauthorized-practice-of-law determination from the bar.

Brian Ratledge told the news outlet the recent decision by the agency is not a new policy or a new concept and, therefore, there was no need for the commission to make a big deal about it. "What constitutes the practice of law in North Carolina is clearly outlined in our statutes," he said, adding the commission does not have the discretion to waive those legal requirements.

Regardless, henceforth it will be necessary for employers to retain an attorney to file Form 24 Applications, Responses to Form 23 Applications, Responses to Forms 28Us and Responses to Form 18Ms, as well as Motions to Compel Compliance, and Responses to Medical Motions.