September 26, 2016

Why You Should Avoid Changing Lawyers in the Middle of Your Disability Case

From time to time, I receive emails or blog comments from disability claimants who are frustrated with the slow pace of the disability adjudication process and who want to change lawyers.  They often express frustration at how long it takes to even get to a hearing and they think that their lawyer should be doing more to move the process along.

Except in very limited cases, I think that changing lawyers in mid-stream is almost always a bad idea and here’s why:

First, you must realize that your lawyer has no control at all over the long delays in the [tag-tec]Social Security disability[/tag-tec] decision making process.  Social Security backlogs are at record levels throughout the country.  Hearing offices are understaffed and judges have very little help.  Social Security tells us that over the past 10 years, the number of claims being processed has doubled, while the number of judges has declined by 10%.

In Atlanta, where I practice, I regulaly see cases that have been sitting in the hearing office for two, three, even four years.  SSA is sending some of the older files to judges in other States, but the long delays continue.

If there was anything that a lawyer could do to move things along, I would be doing it.  Like most Social Security lawyers, I don’t get paid until I win a case – there is no advantage to me or any lawyer to delay the process.

Years ago, we could sometimes get a case moved to the front of the line by claimant "dire need."   We could claim dire need based on a pending foreclosure, homelessness, serious illness, etc.   We could also sometimes get a case moved to the front of the line by advising our clients to pressure their Senator or U.S. Representative’s office.   At this point, those strategies don’t really work any more.  Your Congressperson as well as the local Social Security office realize that everyone seeking benefits has a certain degree of hardship and they are very reluctant to put one dire need case in front of another.

My point here is that your attorney cannot control Social Security’s backlog, nor can you expect for him to secure special treatment for you.  If another disability lawyer tells you that he has a secret technique to move your case to the front of the line, my guess is that you will be sorely disappointed.

Along these same lines, a second reason to stick with your current lawyer relates to the fee application process.   When you hire a replacement lawyer, the "simple" fee agreement process option disappears, leaving you, your prior lawyer and your new lawyer with a much more complicated option.

Social Security has set out two different methods for lawyers to get paid.  The first method is called a fee agreement process and the second is called the fee petition process.  The fee agreement process is simple – if you and your lawyer enter into a contingency contract based on past due benefits that calls for payment of 25% or less of past due benefits, with a cap of $5,300, Social Security will automatically withhold and pay the lawyer 25% of past due benefits up to $5,300 without any need for the lawyer to file a detalied time and billing statement.

On the other hand, if the fee contract does not provide for a contingency or if there are more than one lawyer claiming a fee, then any lawyer claiming a fee will have to file a detailed fee petition, setting out time records, expenses claimed and other billable time.

Almost every contingency fee contract I have ever seen provides that in the event that the client terminates the attorney, the attorney has the right to ask for fees representing work actually done.  Legal services are not free.  A "no fee unless you win" contract is a trade off – the client can retain counsel without paying up front fees, and the lawyer takes the risk that the judge will not approve the case in exchange for a percentage of the recovery that may or may not equal to the amount of time expended in the case.  If, however, the client terminates the contract prior to the time that the case goes before the judge, the lawyer can and will ask Social Security to approve a fee based on the time actually expended by the lawyer.

So, if you terminate your lawyer in the middle of your case, that lawyer will most likely file a fee petition asking for fees representing time expended.  The new lawyer will not be permitted to enter in to a 25% fee agreement, and he, too will have to file a fee petition to get his fees approved.

What is the practical impact of all this?  You may end up paying more than 25% of your past due benefits as a fee, since any and all of your lawyers will be claiming a fee based on time expended.  Another issue – many busy disability lawyers don’t want to mess with fee petitions.  Fee petitions require a lot of time and often the time claimed will end up less than what the attorney would have earned under a 25% contingency.  Fee petitions can be filed whether or not a case is approved by the judge – as a practical matter, however, disability claimants have very little money and if the case is not approved there is no way to actually collect.  In my practice, for example, I almost never accept cases where there has been another lawyer who will be claiming a fee – I have enough less complicated cases in my file cabinet and I don’t need the hassle.

If your prior lawyer will waive any claim for fees, the new lawyer can use the expedited fee agreement process.

In my experience, many lawyers will be reluctant to take on a client who has fired a prior attorney.  Our law school professors and our malpractice carriers advise us to avoid clients who have fired prior counsel because those clients are the ones who are most likely to be unhappy with a lawyer’s work, regardless of the outcome.

Therefore, unless your lawyer is clearly incompetant, ill or dead, I would urge any disability claimant to stay the course with his present counsel.

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Jonathan Ginsberg represents Social Security disability claimants in Georgia. In practice for over 29 years, Jonathan publishes a widely known disability blog, a podcast and several disability web sites. In 2004, Jonathan published a "how to" book about Social Security disability called the Disability Answer Guide. Jonathan lives with his wife and 2 children in Atlanta.