Merriam Webster online defines an attorney as one whose profession is “to advise as to legal rights and obligations,” while an ombudsman is one who “investigates, reports on, and helps settle complaints.” Combine the two, and you’ve got the Bureau’s new Ombudsman Attorney Program, a resource separate from the Court of Workers’ Compensation Claims for self-represented litigants.
We recently sat down with Brian Holmes, Director of Mediation and Ombudsman Services of Tennessee, and Ombudsman Attorney Jay Hicks to learn the basics about the new program. Here’s what they had to say.
When will the program be available?
Holmes: The first Ombudsman Attorney, Jay, was appointed on June 5, 2017. During June and July, he observed many hearings and spoke to the bar and self-represented litigants to develop an understanding of the problems self-represented litigants face and to develop practical tools to help them protect their rights and better understand the dispute resolution process.
On Aug. 7, 2017, Jay will begin working directly with self-represented litigants, which includes injured workers and employers who are sole proprietors.
What services will the ombudsman attorney provide?
Hicks: The Board of Professional Responsibility studied this position from a legal ethics perspective for several months and offered a lengthy list of tasks I can and can’t perform. To name just a few, I’m able to meet with self-represented litigants and to review their documentation with an eye toward evaluating the strengths and weaknesses of their claims. I can also provide basic information about the Workers’ Compensation Law and speak with them about how they might achieve their goals.
What I can’t do is represent them in court or draft pleadings or documents for them. I also can’t communicate directly with their opposing counsel. I’m not an “attorney of record” for anyone.
I should point out that the service I’ll be able to provide in this position is in no way a replacement for the services of a private attorney. I do, however, hope this service results in greater access to, and better understanding of, our system for those who can’t find an attorney.
Is the program available for anyone involved in a workers’ compensation claim?
Holmes: The Ombudsman Attorney Program is available for claims involving injuries that occurred on or after July 1, 2016, and to anyone who isn’t represented by counsel.
The Board of Professional Responsibility advised the Bureau to obtain written informed consent before providing limited legal advice without representation under Rule 1.2(c). Following this advice, the ombudsman attorney will only provide services to those who complete and return the form signifying they aren’t represented by an attorney and they understand they won’t have an attorney-client relationship with the ombudsman attorney.
We’ll focus the ombudsman attorney’s efforts on those who are before the Court. Beginning Jan. 1, 2017, the ombudsman program has actively contacted self-represented litigants where a Dispute Certification Notice was filed with the Workers’ Compensation Court Clerk. This contact confirms the self-represented litigants receive the critical information they need to protect their rights and are able to access the information the Bureau provides. Effective Aug. 7, 2017, the ombudsmen will begin to tell self-represented litigants about the new service.
How much does it cost?
Holmes: The ombudsman attorney’s advice is free, but if he advises a course of action that requires a cost, the litigant must pay it, such as fees connected to court reporters, independent medical examiners, etc.
And now the “final jeopardy” question, so to speak. Jay, why did you apply for this position, and what do you hope to accomplish?
Hicks: I started my career in private practice as a plaintiffs’ attorney and then became a mediator with the Bureau before taking this position. As a lawyer, I took great satisfaction in helping people. As a mediator, I found helping both parties settle difficult cases very rewarding, too. But what I didn’t like was when a self-represented party might’ve had a compelling argument but no evidence to back it because he or she just didn’t know how to go about getting that evidence. In this new position, I’ll be able to help some of those people.
Also, I’m excited about the opportunity to shape this position. It’s a relatively novel approach and one that I don’t think many other states have tried.
It sounds like a valuable addition to the helpful services M.O.S.T. already provides. Thanks and good luck.
For more information, email Holmes.