CALIFORNIA DIVISION OF WORKERS' COMPENSATION
February 2, 1995
Summary of Supplemental Standards of Conduct for Workers' Compensation Referees Proposed by the Josephson Institute of Ethics
I. Rules Are Mandatory
Although the Code of Judicial Conduct says that judges "should" and "should not" do various things, the Division of Workers' Compensation will enforce the Codes with respect to workers' compensation referees as though the word "shall" is used.
II. Good Faith Required
When interpreting these standards, referees will be held to principles of good faith. Attempts to evade the substance and spirit of these provisions through strained interpretations or legalistic artifices or schemes are inconsistent with the code.
Referees must be scrupulously honest and accurate in their oral and written statements, in official documents and all other communications, including administrative forms and certifications. In addition, referees must assure that attorneys, parties, witnesses, and workers' compensation board staff are honest.
IV. Duty to Report Misconduct of Referees.
A referee with information that raises a reasonable belief that another workers' compensation referee has violated these standards of conduct must personally take prompt corrective action or report the information to the presiding referee.
V. Duty to Report Misconduct of Lawyers, Witnesses or Parties.
If a referee has a reasonable belief that a lawyer, witness, party or other person involved in the workers' compensation process has engaged in misbehavior, it is the referee's ethical obligation to take corrective action. In minor cases, a simple warning or rebuke may be sufficient. In more serious matters, the information must be reported to the District Attorney, the Bar Association or other appropriate
professional association, so that the matter can be investigated formally and disciplinary action can be considered.
VI. Integrity of Court Records.
A referee must adhere to procedures developed by the Administrative Director to prevent unauthorized personnel from being provided improper access to records and case files.
VII. Clerical and Staff Assistance.
A referee may not employ, nor allow to serve as a volunteer, anyone whose affiliation or relationship with workers' compensation practitioners or others regularly involved in the process creates the appearance of having special access to the referee or court records.
(A) A referee may not socialize with workers' compensation practitioners, parties or others under circumstances that create in the mind of a reasonable observer the belief that the referee may not be impartial in dealing with matters relating to the people with whom the referee has socialized.
(B) A referee may accept "ordinary social hospitality" but only when the type of event is so common that no reasonable person would believe the host was intending to obtain any advantage or that the referee would believe that there was such an intention.
(C) A referee may not attend social events hosted, directly or indirectly, by law firms or other workers' compensation organizations.
(D) A referee may not have private social contacts with, nor attend events hosted directly or indirectly by individuals who have appeared before the referee in the past 60 days, are presently appearing before them or are likely to appear before the referee in the next 60 days.
(E) Subject to the limitation in these standards of conduct, a referee may attend general social gatherings at bar associations meetings and educational conferences open to all workers' compensation practitioners.
(F) A referee who has a significantly close personal relationship with any person who is appearing before the judge shall disclose the nature of the relationship to all parties at the earliest reasonable opportunity.
(G) A referee may not attend a questionable social event with the intent of disqualifying himself or herself if the occasion subsequently arises. The referee has an affirmative duty to minimize the number of cases in which he or she is disqualified.
IX. Use of Name in Promotional Materials.
A referee may not allow his or her name and position to be used in promotional materials, products or services if it creates the impression that the product or service is officially sanctioned or favored by the workers' compensation judiciary. Names may be used for identification purposes only.
X. Financial Interests in Educational Programs.
A referee may not have an ownership interest or receive a percentage of the revenues in any educational program serving the workers' compensation community. The referee may be paid a moderate fixed fee equivalent to what a non referee would earn in a similar situation by an educational institution not aligned with any particular side or position in the workers' compensation system.
XI. Non-Judicial Activities.
A referee must assure that involvement in an outside activity does not conflict or appear to conflict with the referee's judicial duties.
A referee must disqualify himself or herself when required to do so by these Standards of Conduct, but the referee shall conduct his or her private and judicial affairs in a manner that minimizes instances that require disqualification.
Referees must assure that the tone and substance of all proceedings reflect the solemnity and dignity appropriate to the judicial function. In pursuit of this responsibility, workers' compensation referees must always show and demand that other show respect for any person involved in a matter before them. Rudeness, disparaging or harassing comments or jokes are unacceptable. Comments or any other behavior that treats a person with disrespect, especially on the basis of race, ethnicity, or gender, must be scrupulously avoided.
XIV. Ex Parte Communications.
A referee shall comply strictly with the limitations on ex parte communications contained in California Code of Judicial Conduct. In limited circumstances, a referee may grant a continuance by telephone provided that both attorneys convey their consent and that all parties and witnesses are given time timely notice of the changed schedule and none are unduly inconvenienced.
A full-time referee shall work a full week during regular business hours, shall be punctual with respect to hearing schedules and otherwise honor the time commitments to other parties in the workers' compensation system.
XVI. Role of the Presiding Referee.
A presiding referee shall oversee the judicial conduct of the referees reporting to him or her to assure that they know, understand and adhere to their responsibilities under these standards of conduct and develop and maintain a judicial environment of competency, respect and integrity.
XVII. Writing, Lecturing, and Teaching.
The California Code of Judicial Conduct encourages judges to write, lecture and teach to improve the law, the legal system or the administration of justice within the constraints of these Standards of Conduct. In a referee's writings, lectures and teaching, the referee must not make statements that advocate positions or state opinions that could cast doubt on the objectivity or impartiality of the referee nor may the referee give advice on methods of evading the law or judicial procedures.
A referee may not receive or accept any gift or gratuity not specifically permitted by the Standards of Conduct. This includes lunches, event tickets, works of art, travel, services, special discounts or other benefits from any worker's compensation practitioner or any member of the community who could ever be in a position to appear before the referee or the referee's board.
XVIII. Transportation and Lodging Expenses.
A referee may permit a bona fide educational institution or a bar association other than a workers' compensation practitioner group to pay for or reimburse reasonable expenses for the referees transportation, lodging and other necessary expenses to permit the referee, and the referee only, to attend a permitted law-related function.
A copy of the actual standards as proposed to be integrated into the current Code of Judicial Conduct is available from the California Division of Workers' Compensation, P.O. Box 420603, San Francisco, CA 94142,