818.501.4343March 26, 2024
By: Raymond F. Correio
An intricate saga spanning 18 years, culminating in a Workers’ Compensation Appeals Board (WCAB) decision, has shed light on a myriad of procedural oversights and complexities within a death claim case originating from the Van Nuys District Office, under the adjudication of WCJ Adam Graff.
From the date of application to the WCAB decision, an astounding 18 years elapsed, culminating in a case that served as a testament to the labyrinthine nature of legal proceedings. The kicker? Despite this extensive timeline, the case was remanded back for further proceedings due to several unresolved issues, all of which should have been addressed prior to and during the trial. Notably, the only issue deemed settled was the compensability of the death, a determination the WCJ rightly upheld while rejecting the defense’s intoxication argument. However, beyond this point of clarity, the case devolved into a quagmire of procedural missteps and oversights. It’s worth noting that the trial, which commenced on December 20, 2022, spanned four separate trial dates, with the Findings, Order, and award finally issued on November 28, 2023. Remarkably, this protracted legal saga centered on just three claimants/dependents, underscoring the complexity and intricacy of the matter.
The WCJ found that the applicant/decedent was dually employed by two companies with joint and several liability. The WCJ found the applicant had three total dependents, including his brother, sister, and mother. The dependents were awarded the full death benefit to be divided equally and attorney fees awarded to [current Applicant Attorney] even though a different attorney filed the Application in 2006 and [current AA] did not substitute into the case until 2009. One defendant filed a Petition for Reconsideration, raising several issues, including dependency issues and the decedent’s alleged wife. The descendant’s wife was a named applicant. The WCJ made no finding about as to the wife’s claim for dependency or that she voluntarily withdrew her claim for a portion of the death benefits. Here are some important substantive and procedural lessons/practice pointers from this case that we all must keep in mind while investigating and litigating death claims:
1. When there is a prior AA in the case he or she must be served with all critical documents and hearings even if they have not filed a lien in the case. In this case the first attorney represented multiple alleged dependents for 3 years but was not consistently served with notices of hearings and critical documents. “Further, given the prior legal representation of at least two of the current dependents in this matter, there also may be a statutory lien for attorney fees that has yet to be addressed as it relates to the current proceeding.”
2. Where there is dual representation of multiple alleged dependents or other parties in a death case, there must be a signed and filed conflict of interest waivers as to all parties by counsel. Neither the first attorney nor Sparagna’s office filed the required conflict of interest waivers even though both represented multiple parties in the death case. The Board stated, “Insofar as this indicates dual representation and a potential conflict for death benefits, we would presume that there would be a signed and filed conflict of interest waiver as to the parties by counsel.” The WCAB also indicated in footnote 2 the following:
Absent informed written consent, a lawyer may not concurrently represent clients who have actual or potential conflicts; nor may a lawyer represent one client against another in an unrelated matter. (Truck Ins. Exchange v. Fireman’s Fund Ins. Co., supra, 6 Cal.App.4th at pp. 1055, 1056; Rules Prof. Conduct, rule 3-310(C)). The primary value at stake in cases of simultaneous or dual representation is the attorney’s duty—and the client’s legitimate expectation—of loyalty, rather than confidentiality. (Flatt v. Superior Court (1994) 9 Cal.4th 275, 284 [36 Cal.Rptr.2d 537, 885 P.2d 950].) Thus, the rule prohibiting concurrent representation of adverse interests “is a per se or ‘automatic’ one. (Cal West Nurseries, Inc. v. Superior Court (2005) 129 Cal. App. 4th 1170, 1175)
With respect to the conflict issue, the board indicated that. “Thus, there appears to be a potential conflict as to the multiple representations of not only the three applicants being represented by current counsel, and who have been awarded the death benefit for equal distribution, but of the non-participating claimant, applicant’s wife, whether actual or putative, Veronica Chavarria.
While actual and potential conflicts can be waived if there is informed written consent/waiver. “California Rule of Professional Conduct 3–310(C) is clear that such a potential conflict can be waived if an informed written consent/waiver of such a conflict is obtained from each of the clients affected. Subsection (C)(2) of that rule indicates that even an actual conflict of interest can be waived by the filing of written consents by the clients involved in the joint representation. (Contreras v. A.C. Custom Catering, 2016 Cal. Wrk. Comp. P.D. LEXIS 108, *17-18). The record reflects that there were no conflict waiver or waivers obtained or filed in this case!
3. The mystery of the missing wife or putative spouse. “Even thought there was a substitution of applicant’s counsel in the case nothing changed that the alleged wife or putative spouse remained a party but this issue was ignored by the WCJ and counsel at trial. “Additionally, as previously stated, there is no evidence as to what occurred with respect to decedent’s claimed spouse, Veronica Chavarria, whether she is currently represented, and by whom, whether there was a withdrawal of her claim, or whether there was proper notice to Ms. Chavarria or her counsel that the matter was going to move forward without her claim and evidence.”
This case was returned to the trial level for the WCJ to make determinations after further discovery related to issues 1-3 outlined above.