You get hurt on the job. You call the hall, or the shop steward comes over, and you are given a name. Sometimes it is a card, sometimes a phone number, sometimes a firm that has been handling members’ cases for twenty years. You call, somebody comes to the house, and you sign what they put in front of you.
Almost nobody asks the next question, which is whether they had to use that firm at all.
You did not. And the reason it is worth knowing is not that the firm your local sent you to is bad — often it is very good, and the plan that sent you there is a real benefit you paid dues for. The reason is that choosing your own lawyer on a workers’ compensation claim costs you exactly nothing, so the only thing the referral saves you is the phone call.
The Board says it in one sentence
The Workers’ Compensation Board’s own page on finding representation opens like this: “As an injured worker, you have the right to be represented by an attorney or a licensed representative of your choosing.”
That same page tells you what to do with that right: “Before employing an attorney or licensed representative, you should interview them and make whatever investigation you feel is appropriate into their qualifications to handle your legal matter.” The Board is not subtle about it. It also says plainly that it does not recommend anyone and is not a referral service.
What a union legal plan actually is
A union legal services plan is a benefit that furnishes or pays for legal services to members. It is not an assignment of counsel, and under the rules that make these plans permissible in the first place, it cannot be.
New York’s Rules of Professional Conduct allow a lawyer to be recommended or paid by an organization that provides legal services to its members, but only “if there is no interference with the exercise of independent professional judgment on behalf of the client,” and only where several conditions hold. Two of them matter to you directly:
- “The member or beneficiary to whom the legal services are furnished, and not such organization, is recognized as the client of the lawyer in the matter.” You are the client. The local is not the client. The lawyer’s duty runs to you.
- The plan must provide “appropriate relief for any member or beneficiary who asserts a claim that representation by counsel furnished, selected or approved by the organization for the particular matter involved would be unethical, improper or inadequate under the circumstances of the matter involved” — and it has to give you a procedure for asking.
Read that second one again. The rules that let these plans exist assume in advance that a member might look at the counsel the plan picked and conclude it is not right for their particular case. The plan is required to have an answer when that happens. That is not a loophole; it is a designed-in feature.
Two other conditions are worth knowing about, because they tell you what the rules are guarding against. The lawyer cannot have set up or promoted the organization mainly to benefit the lawyer, and the organization cannot be operated for the purpose of procuring legal work for a lawyer in private practice. Separately, a lawyer is generally forbidden to “compensate or give anything of value to a person or organization to recommend or obtain employment by a client,” with a narrow exception for the usual and reasonable fees or dues of a qualified legal assistance organization. The rules are written that way because the risk is obvious and real. It does not mean any particular arrangement is improper. It does mean the arrangement exists for reasons that are not only about you.
The problem that shows up six months later
Here is the pattern we see most often, and it is not really about who is better. It is about what you were actually signing.
The firm a local sends an injured member to is very often a personal injury firm, because the big-ticket case is the third-party lawsuit — the fall, the falling object, the Labor Law claim. The workers’ compensation claim rides along. It gets placed with whoever that firm uses for comp work, sometimes a department, sometimes an entirely different firm. You did not pick that person. You may not learn their name until a hearing, and you may get a different one at the next hearing.
That is the moment members call us: not angry, just unable to get a straight answer about their own case from anyone who seems to know it. We wrote separately about who actually shows up at your hearings, because it is the question nobody is asked to think about when they sign, and about changing the attorney on the comp claim alone, which you can do without touching the lawsuit.
Why choosing costs you nothing
This is the part that makes the whole question easy, and most members do not know it.
You do not pay a workers’ compensation attorney out of your pocket. As the Board puts it, your representative “may not charge you directly for work.” If there is a money award, the attorney applies to the Board for a fee, the Board approves it, and the carrier pays it out of the award.
Since January 1, 2023, the amount is not negotiated at all. An amendment to Workers’ Compensation Law § 24 put the fee on a schedule, and the Board applies it:
- One third of one week’s compensation to continue a temporary total or temporary partial award
- 15% of any increase in compensation for a past period of temporary disability
- 15% of the compensation due above what the carrier already paid, on a schedule loss of use or permanent facial disfigurement
- 15% of the compensation due above what the carrier already paid on a permanent partial or permanent total disability, plus a sum equal to 15 weeks of compensation at the rate the Board fixes
- The same treatment on death benefits, plus the 15 weeks
- 15% of a Section 32 settlement, after taking out anything allocated to future medical expenses
Those percentages do not move depending on which firm you hire. The fee on your claim is the fee on your claim. So when someone tells you the union-referred firm costs you nothing, that is true — and it is equally true of every other workers’ compensation attorney in New York.
And if you switch, you do not pay twice
This is the worry that keeps members with a firm they have lost confidence in, and it is unfounded.
The same 2023 amendment added WCL § 24(3), which provides that the Board determines what share of the fee goes to a prior attorney who has been substituted for and who files a timely fee request. There is one total fee on the claim. The Board divides it. The old firm and the new firm each get to put their position in writing to the Board, and that argument happens between them, not on your bill.
You also do not need anyone’s permission. Not the union’s, not the current firm’s. The incoming attorney files Form OC-400, the Notice of Retainer and Substitution, and you can sign it without coming into an office.
One thing the Board took away in 2023
It is worth knowing this, because it changes what you should pay attention to at the front end.
Before 2023, a fee over $1,000 generally had to be awarded at a hearing with you present, or else you had to be given the fee application to review, told about it ten days ahead, and asked whether you approved and had any objection. The Board removed all of that when it amended Rule 300.17 to match the new statute. It also removed the question from the Section 32 claimant release that used to ask whether you agreed with the amount of the fee your attorney requested.
None of that is a scandal — the fee is on a fixed schedule now, so there is less to object to. But it does mean the system no longer stops to ask your opinion of your lawyer at the end. Which is a good argument for having an opinion at the beginning.
What to ask before you sign anything
Whoever hands you the card, these are the questions worth asking, and any decent firm will answer them without flinching:
- Does your office handle the workers’ compensation claim itself, or send it to another firm?
- Who will be at my hearings? Will it be the same attorney every time?
- If I have a question on a Tuesday afternoon, who picks up, and is it somebody who knows my file?
- Who is handling the third-party case, if I have one, and how do the two cases talk to each other?
- How often do you appear in front of the judges who will hear my case?
That first question and the second one are the ones that predict how the next two years will feel. At this firm the same associate attorney handles all of a client’s hearings rather than a different covering attorney each time, and Frank stays at the office instead of appearing at hearings, so there is someone to talk to when you call. That structure is a choice, and it is the kind of thing worth asking any firm about before you sign, including this one.
Frequently asked questions
Do I have to use the attorney my union sent me to?
No. The Workers’ Compensation Board’s position is that an injured worker has the right to be represented by an attorney or licensed representative of their choosing. A legal services plan furnishes counsel; it does not assign you counsel you cannot decline.
Will I lose my union legal benefit if I hire someone else?
That depends on the terms of your plan, and plans differ, so read yours or ask the plan administrator. On the workers’ compensation claim specifically it usually matters less than people expect, because the attorney’s fee comes out of the award under a schedule set by statute rather than out of your pocket or out of the plan.
Is it disloyal to go outside the referral?
The ethics rules that permit these plans expressly require the plan to have a procedure for a member who believes the counsel it selected would be inadequate for their particular matter. The people who wrote the rules built that door in. Using it is not a betrayal of anybody.
I already signed with the firm the union sent me. Is it too late?
No. You can substitute attorneys on the compensation claim at any point, without permission from the firm or the union, and without disturbing your third-party lawsuit. The Board splits a single fee between the outgoing and incoming attorney, so switching does not cost you a second fee.
Does the union or the plan get to tell my lawyer how to handle my case?
No. The rule that allows a lawyer to be recommended or paid by such an organization applies only where there is no interference with the exercise of independent professional judgment on behalf of the client, and only where you, not the organization, are recognized as the client.
How do I even find someone on my own?
The Board points injured workers to the New York State Bar Association and the Injured Workers’ Bar Association, and publishes a list of licensed claimant representatives. It also says outright that it does not recommend or endorse anyone, and that you should interview whoever you are thinking of hiring.
A second opinion costs nothing
If you were handed a name and you are not sure what you signed, or you have a comp claim being handled by somebody you have never spoken to, find out where you actually stand. We will tell you plainly if your current representation is doing fine — that answer is free too. Call 718.701.2776 or 800.310.5520.
This page describes New York law in general terms. It is not legal advice about your claim, and reading it does not make us your attorneys.
