UNEMPLOYMENT INSURANCE - PREPARATION FOR HEARINGS

Here is more on subpoenas. You will recall yesterday that I posted Section 460.4 of the rules and now I would like to point out subdivision (2) which provides: "An attorney who shall have filed with the board a notice of appearance on behalf of any party may issue and cause to be served, subpoenas to compel the attendance of witnesses in accordance with sections 2302 and 2303 of the Civil Practice Law and Rules (CPLR)."

In practice, at least in my experience, this has been a problem. First, let us look at CPLR 2302 and 2303:

" § 2302. Authority to issue. (a) Without court order. Subpoenas may be
issued without a court order by the clerk of the court, a judge where
there is no clerk, the attorney general, an attorney of record for a
party to an action, an administrative proceeding or an arbitration, an
arbitrator, a referee, or any member of a board, commission or committee
authorized by law to hear, try or determine a matter or to do any other
act, in an official capacity, in relation to which proof may be taken or
the attendance of a person as a witness may be required; provided,
however, that a subpoena to compel production of a patient's clinical
record maintained pursuant to the provisions of section 33.13 of the
mental hygiene law shall be accompanied by a court order. A child
support subpoena may be issued by the department, or the child support
enforcement unit coordinator or support collection unit supervisor of a
social services district, or his or her designee, or another state's
child support enforcement agency governed by title IV-D of the social
security act.
(b) Issuance by court. A subpoena to compel production of an original
record or document where a certified transcript or copy is admissible in
evidence, or to compel attendance of any person confined in a
penitentiary or jail, shall be issued by the court. Unless the court
orders otherwise, a motion for such subpoena shall be made on at least
one day's notice to the person having custody of the record, document or
person confined. A subpoena to produce a prisoner so confined shall be
issued by a judge to whom a petition for habeas corpus could be made
under subdivision (b) of section seven thousand two of this chapter or a
judge of the court of claims, if the matter is pending before the court
of claims, or a judge of the surrogate's court, if the matter is pending
before the surrogate's court, or a judge or support magistrate of the
family court, if the matter is pending before the family court, or a
judge of the New York city civil court, if the matter is pending before
the New York city civil court and it has been removed thereto from the
supreme court pursuant to subdivision (d) of section three hundred
twenty-five of this chapter.

§ 2303. Service of subpoena; payment of fees in advance. (a) A
subpoena requiring attendance or a subpoena duces tecum shall be served
in the same manner as a summons, except that where service of such a
subpoena is made pursuant to subdivision two or four of section three
hundred eight of this chapter, the filing of proof of service shall not
be required and service shall be deemed complete upon the later of the
delivering or mailing of the subpoena, if made pursuant to subdivision
two of section three hundred eight of this chapter, or upon the later of
the affixing or mailing of the subpoena, if made pursuant to subdivision
four of section three hundred eight of this chapter. Any person
subpoenaed shall be paid or tendered in advance authorized traveling
expenses and one day's witness fee. A copy of any subpoena duces tecum
served in a pending civil judicial proceeding shall also be served, in
the manner set forth in rule twenty-one hundred three of this chapter,
on each party who has appeared in the civil judicial proceeding so that
it is received by such parties promptly after service on the witness and
before the production of books, papers or other things.
(b) A child support subpoena issued pursuant to section one hundred
eleven-p of the social services law to public utility companies and
corporations, including but not limited to cable television, gas,
electric, steam, and telephone companies and corporations, as defined in
section two of the public service law, may be served by regular mail, or
through an automated process where information sought is maintained in
an automated data base. All other child support subpoenas issued
pursuant to section one hundred eleven-p of the social services law
shall be served in accordance with the provisions of subdivision (a) of
this section."

At the same time, let us review this Appeal Board rule:

"Section 460.6 Representative's fee.
......
(b) When an attorney or registered agent represents a claimant at a board or administrative law judge hearing, the board or administrative law judge shall ascertain whether or not such attorney or registered agent is appearing for claimant on a fee basis. If benefits are allowed by the board or administrative law judge decision, the board or administrative law judge shall require such attorney or registered agent, following the mailing of the decision, to submit a written statement of his claim for compensation for such service, setting forth in detail:
(1) the total benefits allowed;
(2) the time spent in providing representation;
(3) the legal and factual complexities involved; and
(4) any other factors which may be deemed relevant to the board's
determination of the fee that should be allowed.
When such claim is submitted to an administrative law judge, he shall forward such application, together with his recommendation, to the board for appropriate action. When such claim is submitted to the board, action shall be taken thereon by a board.
(c) If a claimant, an attorney or a registered agent is dissatisfied with the fee set by the board, such person may apply to the board for reconsideration of the fee. Such application must be made in writing within 15 days of the mailing of the notice of the fee approval. In its discretion, the board may accord the parties an opportunity to be heard. The chairman of the board shall designate a member of the board, an administrative law judge, or any other person to hold such hearing. If the hearing is held before an administrative law judge or an individual who is not a member of the board, such designee shall conduct the hearing and submit a report to the board including his recommendation as to the fee. As soon as practicable after the receipt of the application and on the documents submitted or after the conclusion of the hearing, the board shall issue a decision setting forth the fee awarded and the reason(s)therefor.
d) No attorney or registered agent shall receive any money from a claimant, as payment of a fee for representing such claimant, until the board has approved the fee to be allowed. If an attorney or registered agent shall have received a fee payment prior to the approval of the board, he shall promptly remit to the claimant any amount received which is in excess of the amount allowed by the board. If the attorney or registered agent shall fail to make such remittance, the claimant may submit an application to the board for an order or restitution. The chairman of the board shall then designate a member of the board, an administrative law judge, or any other person to hold a hearing, upon due notice to all parties including the corporate surety, for the purpose of considering the application. If the hearing is held before an administrative law judge or an individual who is not a member of the board, such designee shall conduct the hearing and submit a report to the board, including his recommendation on the application. Thereafter, the board shall issue an order on the application. Such order shall be deemed the order of the board when signed by any member of the board and when duly mailed and filed in the Department of Labor. A copy of said order shall be mailed to all parties in these proceedings, including the corporate surety."