Virginia Administrative Code › Title 16 - LABOR AND EMPLOYMENT › Agency 5 - VIRGINIA EMPLOYMENT COMMISSION › Chapter 80 - ADJUDICATION › Section 16VAC5-80-40 - Oaths, subpoenas, ex parte communications, and approval of attorney's fees

Current through Register Vol. 40, No. 24, July 15, 2024
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 § 17.1-612 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
				  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 the Chief
				Administrative Law Judge's 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 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.