Firing Your Lawyer – Proceed Slowly
Many of the questions I get from readers of this blog concern the long delays in Social Security cases, as well as complaints about lawyers who "aren't doing anything." Frequently the reader asks if he should fire his lawyer. Here are my thoughts on this important issue:
1. Delays in Social Security cases are not the lawyer's fault and there is little, if anything that the lawyer can do about the delays. The delays in Social Security disability cases are a function of the number of claims filed in your area. Social Security has set up a somewhat convoluted system to evaluate disability. The initial stages of adjudciation are handled by an agency of your State (the "State Agency"). The Social Security Administration (a federal agency) contracts with each State to provide this service. The State Agency handles the initial application and the reconsideration appeal. Assuming you are turned down for reconsideration, the case is physically moved to a federal office called the Office of Disability Adjudication and Review (ODAR). Both the State Agency and the ODAR office are understaffed and overworked. There are not enough judges or judicial assistant personnel to handle all of the cases. Social Security is also attempting to convert from a paper based system to a paperless system, which means that all of the State Agency and ODAR offices have a new computer software system to learn and to implement.
2. Most Social Security Disability lawyers use paralegals and support staff to manage the large amounts of paperwork that are associated with your claim. A large part of your lawyer's job is to collect medical records and submit those records to the right place – either the State Agency office or the ODAR. Collecting medical records is extremely time consuming. Some doctor's offices handle copying in house, while others use a copy service. In addition, every time copies are requested, there is a copying cost involved. In order to keep the cost down and to avoid making your doctor's office angry, your lawyer has to decide how often to update your records. In my office, for example, we know approximately how long each of our local ODAR office takes to schedule a hearing, and we wait until we are in that window before updating the records. Requesting, copying and mailing medical records is a task best suited to a capable paralegal. Your lawyer's focus will be on evaluating cases, and preparing and trying cases at hearings.
3. Many Lawyers are Reluctant to Accept Cases Where There Has Been a Previous Representation. Ethical, experienced lawyers do not want to get a reputation as "case stealers." Even in large cities, there is usually a small core of disability lawyers who handle most of the cases in a geographic area. In my practice, for example, if I get an call or email from someone who wants to fire his lawyer and hire me, I will urge that claimant to stay the course with his existing lawyer and, if I know the lawyer, I may drop the lawyer a note or call him to say that he has an unhappy client. I do this because I want my colleagues to look out for me.
There is a second reason why lawyers are reluctant to take on a case that was previously the responsibility of another lawyer. Fees. Social Security has two procedures for lawyers to get paid. Option one is called a Fee Agreement, and it provides that lawyers may charge up to 25% of past due benefits with a cap of $5,300 (the cap is periodically adjusted by SSA). In a Fee Agreement case, Social Security will withhold the 25% and forward it directly to the lawyer. Option two is called a Fee Petition. In a Fee Petition case, the lawyer has to submit hourly time records for work performed. There is no 25% limit nor is there a cap on fees, and the fee is not contingent on the lawyer winning his case. However, a Fee Petition is a lot more work for the lawyer and delays in getting paid because a judge has to review the Fee Petition.
Most lawyers take advantage of the Fee Agreement process because it saves time and work.
However, if more than one lawyer has filed an entry of appearance, Social Security will not honor a Fee Agreement. Both the new lawyer and the old lawyer will be asked to file a Fee Petition. In such a case, it would not be uncommon for the claimant to end up owing more than 25% of his past due benefits to the lawyers.
In my office, I rarely take on cases where there has been another lawyer unless that lawyer is willing to waive his fees (in which case I could use a Fee Agreement). Fee Petitions are time consuming and, in my opinion, they also do not reflect the value of a good lawyer's services.
Tags: fee agreement, fee petition
Jonathan Ginsberg
Comments on Firing Your Lawyer – Proceed Slowly
"…I will urge that claimant to stay the course with his existing lawyer and, if I know the lawyer, I may drop the lawyer a note or call him to say that he has an unhappy client. I do this because I want my colleagues to look out for me…"
Isn't this a violation of an attorney-client privilege?
Aren't you supposed to keep this client's visit (and even the very fact that he consulted with you) in strict confidence, even if you end up not taking the case?
You are correct. I would only communicate with the current lawyer after obtaining permission from that person to speak with his existing lawyer. Most people who are unhappy with their counsel are really looking for communication from their lawyer as opposed to starting over with a new one.
I fired my first atty. after she never, never returned my calls. Mths. later I signed up with another law firm and requested help with "Dire Need Letter", to which they refused.
After 21/2 years I am frustrated and desperate. A week later I fired (dismissed) the Law Firm and they insist holding out a 'Fee Petition'.
They did nothing for me. I met with a para-legal to assign them. After I wrote my State Senators and told them, they requested med. records which I 'stopped'. So they never received or paid for them. This was at the same time I realized I did not trust them and had requested a letter of dismissal. (I fired them.)
They never even asked what my illness is. When I spoke with the atty. and later the para-legal by phone, each gave me contradictory information.
I realized no one knew a damn thing, or was attempting to help until the final 30 day count down to Hearing.
How much do they think they can steal from my settlement with their Fee Petition, after doing absolutely nothing on my behalf.
I spoke with an atty once for 3 mins. The para-legal who had me sign my life away, and a para-legal when I was stating my 'Dire Need' to my Senators.
How much can they legally get with their 'Petition Fee'???
I read their would be a $30. fee if I withdrew their services, and never got the $30 bill.
Now they are telling me they have a 'Petition Fee' and will not tell me what it is in regard too.
Thank you any one that can offer me insight, advice, peace of mind.
I knew after their refusal to help in my Dire Need, and then getting contradictions, that I did not want them.
Carol
Alright, I see the Petition Fee is inclusive of hours worked?
Q. Why a $30. withdrawal fee clearly stated?
Q. Is the hourly fee different for time with a 'Para-legal
having me fill out an inch of their papers & agreement?
Q. Am I also charge the time preparing a, 'Petition Fee', as in their time checking their own 'phone-logs'?
Q. Am I charged by the minute speaking with a 'Para-Legal' by phone and for minutes speaking to an attorney?
I called to ask about the process, that was never explained for me.
I knew this firm was a slum-one. Come to learn they are in the same building where the 'Hearings' take place.
How can I argue this? Why aren't they supplying me with their time calculations, and cost?
I look forward to your reply. Thank you. Should you find time to reply it will be just in time for my 53rd birthday.
Carol
My attorney couldnt even tell the judge what medication i was taking. He had to ask me. I have memory problems since my brain tumor was removed. I was embarressed. He is not a good attorney. He never returns my phone calls. Im very ill and not able to work. It has been almost 5 years. His parraleagel tells me to call the appeals boared. I ask him what i should do about income. His reply is do like everyone else and apply for assistance.
if i fire my current att. would the next att. have to start my diss. case over from scratch even though it is in the appeals before a judge the date for the appeal has not been set yet but i hired my lawyer 18 months ago after my letter of denial
I had my first attorney tell me to 'lie' before my deposition – I should say that he prepped me for an hour, when it was 3 minutes. I've never been in a depo before and did ask him what to expect. "Oh, it's routine, nothing to worry about". I left him as I felt he was unethical.
Attorney #2 says he did not have a conflict of interest with the plaintiff's attorney, although he used to work for them. So I trusted that he would do right by me. He also said he would split the fee with the first attorney. For 2 years of this workman comp case, he did very little When I did have two major problems with the adjuster and asked for help, he did nothing. I threatened to take this to the bar as it affected my state disability payments, and then he moved on one of the issues and got it resolved. Issue #2 occurred and was affecting my SSDI payments and again he did nothing. Again, I said I was unhappy with how he was dealing with that firm and a day later I got a request from him to be dismissed from the case; he thought we had a breakdown in communication.
So I had to seek out a 3rd attorney, who only took this case because he knew the lady who recommended him and did a courtesy for her.
Now we've been to court twice, and finally got it worked out, I thought. July 1, I received a letter for continuance from the 2nd attorney to appear at court again in August to discuss 'workman comp offsets' and 'fee entitlements'. He called my current attorney and found out his fee is the full 15%. Now he wants his third. My question – he LEFT this case in the middle, with no resolution of issues – why should he get anything?
After working for SSA and Office of Hearings & Appeals (ODAR) for 25 years, it is my "opinion" that getting an attorney is not worth the 25% of the back due payments you and your children will receive from SSA if approved. I worked in both agencies and it is SSA's job to get your medical records; you just need to follow up with them to ensure everything has been received. To the individual with regards to his having to start over if he releases his attorney – this is not true to my knowledge. In my opinion, go it alone. One point i would make to you is to tell SSA every little thing that is wrong with you including if you have depression and suicidal thoughts. It also helps speed up your claim if you contact you congressman/senator and to make sure you are the squeaking wheel. Again, make sure you tell the SSA representative everything that is wrong with you, even if it happened 10 years ago, has healed, but still bothers you. Be honest and tell all. Again, this is my opinion based upon what I have seen, heard, and experienced.
With all due respect to ES, I disagree with her conclusion. First, Social Security only collects records until the reconsideration decision is issued. Since your hearing may not be scheduled for another 12 to 18 months, there is no one to obtain and submit records. Once your case leaves the district office and is transferred to the hearing office, the claimant (and his attorney) are responsible for obtaining and submitting records. I would submit that if you show up for your hearing and the last medical record in the file dates back two years, your odds of winning are not great.
Second, I think it would be a mistake to appear before a judge on your own. Social Security judges are busy and pro se cases take a lot more time because most unrepresented claimants do not have the experience to know how to present a case. Moreover, would you feel comfortable cross examining a vocational witness and/or a medical witness?
I would agree with ES that an intelligent and diligent claimant could file a claim and file a reconsideration appeal without a lawyer – I have even written a "how to" manual about how to do this – see http://www.disabilityforms.com.
Once the reconsideration denial is issued, however, I do not think it is a good idea to go it alone.
I just went to my hearing with the alj in march 09 just got my letter sept 09 and i was denied. i have been devistated because my lawyer i feel didnt represt me he didnt even have my medication list or even my employment dates and i didnt get to me with him until 5 min before the hearing and during my hearing i had to excuse my self because i started blacking out i dont remember to much about the hearing but the judge ask the voc rehab if the was any jobs i could do he said there was no jobs i could do but i got aletter of denial and i am wondering if i should fire my lawyer they want me to appeal and also refile a second claim i feel that the judge was bias and he said in my letter that my doctors rfc wasnt good enough and when the judge ask me if i had anything to say i couldnt think i was in a daze and confused just like someone feels after they have a seizer so if anyone has a sugestion please feel free to let me know
it about killed me when i was denied so do i fire my lawyer or stay i read were alot of attorneys dont want to take a case that has allready had a lawyer.and i am wonder can you receive money until your appeal is done please email me at seaspirit_65@yahoo.com I am confused on what to do my lawyer has never answered a call from me or return a call its allways his paralegal and i would like to know if this has happened to anyone before Thanks Tinab
i was diagnosed paranoiac, maniac depressive, schizophrenic and bipolar and in psychiatric wards for two months. why is social security sending me to a psycologist instead of a psychiatrist. marilyn bloch please explain since psychologists cannot treat mental illness.
I do not believe that you have the right to demand a particular specialist for a Social Security consultative examination. You can, however, request a psychiatric consult – I would do so in writing.
hi ive been in the process of getting a hearing for just about 1 year and 3 months this week im getting one and now my lawyer magically isnt calling me to get me ready or briefing me on what will go down so im a little worried ill show up and have to do this alone what should i do? im diagnosed add/bipolar,post traumatic stress syndrome
I just won my SS case last week after 32 months since the initial application (13 months since the request for a hearing). I hired my lawyer approximately 1 year ago. The great thing is I never even had a hearing. My lawyer called last week to tell me my case had been reviewed by social security's lawyers and they had decided to approve my application. Not only did I not have to go to a hearing, I actually never even met my attorney. I had a couple phone meetings with his support staff and one in house meeting early on with a paralegal to go over the case to see if they were willing to even take the case.
When I had my initial phone interview with SS back at the beginning of the application process the lady told me at the end of the conversation that "no matter what happens, make sure you take it ALL THE WAY". I didn't quite know what she meant at the time, but I eventually learned.
Trust me, lawyers don't take SSDI cases unless they're confident they can win so don't get disheartened by all the rejection and denials from the SSDI people. I got the feeling they are paid to make sure as many people are denied as possible. If a lawyer takes your case then personally I think you generally have a good chance at winning. And just know that once the lawyer takes your case there's going to be LONG periods when you don't hear from them other than getting copies of correspondence they send to SS. Once they get all the information they need it's a waiting game. You're either wating for a hearing or your waiting to see if the SS lawyers review your case and decide to recommend your case be approved without a hearing (even though it's possible the judge may disagree – although I think that's less than likely).
Another thing I learned is that your local SS staff are behind you 100% and want you to win the case. They don't have the same attitude the people who approve or deny the applications have. So far they couldn't be any nicer and more happy for me.
Trust me, there is a light at the end to the SSDI application tunnel and once you get there you'll never know such relief.
It's been a year since I've filed for my SS. I know there is a backlog, but I've never met my attorney. I've only went to his office and spoke to a "case manager" and signed papers. They would not give me any copies of the papers I signed because they said they were saving on paper. I was denied my original application for SS. I've had the lawyer appeal for me. He's never sent me any paperwork where he has filed for the appeal. I've called him twice over this last year and he said he would send a request for a status. I've never heard from him since.
This Friday I received a message on my phone from his assistant/or whomever and asking me where I was on the SS case and if I wanted them to still handle it for me. I thought it was their responsibility, since I signed the forms, to handle my case. I've gotten them all the medical reports and anything else they need. They've done no leg work at all. They're supposed to be handling my case and have done nothing. I know they filed the appeal because I've called the SS office and they stated it was still pending.
I'm at a loss for what to do now. I don't feel they have my best interest at heart since it is also a bankruptcy law firm. My case seems to be just sitting there.
I would like to fire the attorney for non-communication and get another one, but don't know how to proceed. Any help would be appreciated. Thank you.
I have applied for social security disability and my attorney has filed for a hearing. I requested my senator lobby on my behalf with a dire needs letter to try and expedite the hearing. I recently received a letter from the Senator that told me they have received word back from the Hearing and Appeals office and will let me know when they know more. What does this mean? Does this mean that I won't have to wait the 14 months or so extra that was initially told to me when the hearing was requested? I tried to ask my attorney, but all I was able to talk to were front desk people and they gave me general explanations that didn't answer my question. Is it possibe that all the Office of hearings and appeals were doing were acknowledging the Senator's request on my behalf, or does it mean my file is on someones desk? How long does it typically take for a hearing if the office of hearings and appeals actually honors a dire needs letter and a Senator's plea for help etc???
I am devastated. Judge told me SSDI pymt. would start in 60 days. Instead, without identifying their self it was SSI who was rushed to send pymt. Because it went direct to bank, I am being forced to accept 3 installments over 18 months. Even though my SSDI pymt. from the beginning of back pay is higher than the SSI cut-off. PLUS, I hand carried 2 years of Tax Returns the IRS lost and SSDI by law must consider years of previous income to accept these returns, and are refusing to do so.
My lawyer is useless. He appeared only as a stand-in, and wrote a letter telling the Judge & SSDI he waived them withholding his payment as he will wait and collect from me.
No one knows anything about all the submissions sent repeatedly for stopping this screw job of my full back pay, and dependent pay.
What can I do, when the attorney I had does not know or normally work with applications, so he knows less than me.
Desperately, looking for support and direct answers.
Thanks.