September 29, 2016

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.

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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.