Section 40. Oaths, subpoenas, ex parte communications, and approval of attorney's fees

A. The special examiner, the appeals examiner, and the Clerk of the Commission shall have the power to administer oaths, to take depositions, certify to official acts, issue subpoenas, compel the attendance of witnesses and the production of books, papers, correspondence, memoranda, and other records, and to take such action as may be necessary in any hearing.

B. Upon the request of any party to a proceeding, the Clerk of the Commission, in the name of the commission, may issue subpoenas requiring the attendance of witnesses at any designated time and place fixed by the special examiner or appeals examiner for the hearing of a claim or any issue therein.

Upon a written request of any party specifying with reasonable certainty any books, papers, correspondence, memoranda, or other desired records, the Clerk of the Commission may issue a subpoena duces tecum requiring the production of such evidence at any designated time and place fixed by the special examiner or appeals examiner for the hearing of a claim or any issue therein.

A request for a subpoena ad testificandum or subpoena duces tecum may be denied if there is no showing of relevance to the subject of the appeal, if it appears that the request would only produce cumulative evidence or testimony, or if it appears that the request would not serve the interest of the party making it. If such request is denied, it may be renewed at the hearing and a proffer of evidence or testimony may be made. The appeals examiner or special examiner hearing the case shall continue the hearing if it appears that the subpoena should be issued.

C. Witnesses subpoenaed for appeals before the appeals examiner or the commission, or both, shall, upon request, be allowed expenses as provided in § 14.1-190 of the Code of Virginia.

D. No party or authorized representative of a party shall confer, engage in ex parte communications or otherwise communicate in any manner with the presiding appeals examiner or special examiner regarding substantive, procedural, or other matters that could be reasonably expected to influence the outcome of the case or case decision without first giving adequate notice to all other parties, and affording such other parties full opportunity to participate, or otherwise to make appropriate response to the substance of the communication. For the purpose of this subsection, the term "parties" shall include claimants and any employers or employing units that have a direct interest in the outcome of the pending case. Notice of an ex parte communication given to a party's attorney of record or duly authorized representative shall constitute notice to the party.

This provision shall not apply to deputies who conduct predetermination fact-finding proceedings on benefit eligibility issues, and field tax representatives who conduct audits and investigations regarding tax liability issues.

E. Approval of fees for representation of claimants.

1. Pursuant to § 60.2-123 of the Code of Virginia, no attorney or other individual representing a claimant before an officer of the commission may charge or receive a fee unless approved by the commission.

2. All fee requests shall be submitted to the Chief Administrative Law Judge or his designee. An attorney or other representative for a claimant shall, upon request, provide the commission with such information as it deems necessary to assess the reasonableness of the request submitted for approval. Such information may include, but shall not be limited to, written fee agreements, invoices, and detailed summaries of services provided.

3. In assessing the reasonableness of an attorney's request for approval of a fee, the commission shall consider the Virginia Rules of Professional Conduct adopted by the Virginia Supreme Court, Part 6, II.

When applicable, these factors shall also be considered in approving a fee request from nonlawyer representatives. Notwithstanding these factors, no fee shall be approved that exceeds 25% of the claimant's maximum benefit amount.

4. No fee shall be approved until the agency determination or decision issued pursuant to § 60.2-619, 60.2-620, or 60.2-622 has become final, provided, however, that in those cases where an attorney or representative is representing a claimant through multiple stages of the administrative adjudication and appeal process, the commission may approve an interim fee award not to exceed the lesser of $400 or 10% of the claimant's maximum benefit amount.

Historical Notes

Derived from VR300-01-8 § 4, eff. December 14, 1994; amended, Volume 18, Issue 26, eff. November 3, 2002.

Statutory Authority

§ 60.2-111 of the Code of Virginia.