Several times a month I hear from a potential client who expresses dissatisfaction with their current attorney (or non-attorney representative) and wants me to review their claim for possible representation. In some cases the potential client has already dismissed the representative and is looking for new representation.
Unfortunately Social Security makes it complicated to change attorneys – although it can be done.
Delays in Your Case Arise from SSA’s Massive Dysfunction
First, I would tell anyone who is thinking about firing their current representative to think twice about this step. The Social Security Administration is massively dysfunctional and most of the time the long delays in disability cases is not the representative’s fault.
A recent article in the Washington Post describes this dysfunction in very stark terms – SSA has effectively been closed for in person access for almost two years (since the beginning of the pandemic) with no projected re-opening in sight. SSA employees are working at home, often without necessary equipment or access to needed files.
According to SSA’s own statistics, the “head count” of Social Security employees in 2021 was less than it was in 2008 despite a massive increase in the number of baby boomers retiring and demand for Social Security’s services. Callers to SSA’s “800? number are routinely put on hold for hours before having their calls disconnected.
If you want to get a sense of what is going on “inside” SSA take a moment to read what a Social Security field office manager has to say about the state of operations. Statements like “we are a disaster and holding it all together on the back of managers that are breaking” and “many agents don’t have updated mail machines so we must weigh envelopes individually and seal them by hand. The process takes hours. After outgoing is done all day – we handle incoming. Hundreds of documents from the public daily in some cases. Items go missing regularly” don’t inspire a lot of confidence.
In my office I regularly reach out to adjudicators who are processing cases at the initial application stage or the reconsideration appeal stage. About 30% of the time, I don’t get a call back at all, even after leaving multiple messages. When I do speak to adjudicators (and often I hear dogs barking or kids screaming in the background) the most common refrain is “we’re still processing your client’s claim and I have no idea when we will be able to get a decision out.”
So, if you are upset with your lawyer or rep because your case has been stuck at the Disability Adjudication Services office for eight months, I understand your frustration but I would tell you that your anger is misplaced – your rep is not the culprit here.
SSA’s Procedure for You to Change Lawyers is Unnecessarily Difficult
Second, SSA makes it difficult for a new rep to get paid if you do make a switch.
When you hire an attorney or non-attorney rep to help you with your disability case, you sign a form called the SSA-1696 (this form used to be one page, and now it is 6 pages, but that’s a story for a different day). You also sign a contingency fee (no fee unless you win) agreement which provides that your lawyer will get paid 25% of your past due benefits with a cap of $6,000 (this fee cap has not been raised in over 12 years – also a topic for another day).
If SSA has a 1696 on file from lawyer #1, then they receive a 1696 from lawyer #2, SSA will not honor either lawyer’s contingency fee agreement.
Both lawyers would then need to file something called a “fee petition” in order to get paid. Fee petitions require both lawyers to spell out in detail the time they spent on your case. For example a phone call might be .3 of an hour, hear prep might be 2 hours, an email might be .3 of an hour.
This type of time billing is common for corporate lawyers but it is not regular practice for lawyers who work under contingency fee contracts. So, if I am preparing a fee petition I have to go back into my file and re-create the billing based on letters, emails and notes.
Then I have to submit the fee petition and wait.
To say that SSA puts no effort into processing fee petitions would be an understatement. The last fee petition I submitted that was actually paid took over 5 years and that was after repeated calls and letters. I have several others pending that may never be processed. Fee petitions go into a black hole at SSA.
So, I, like many of my colleagues, has made the decision that we will not accept as clients any potential client who had previously hired another lawyer or non-attorney rep. so we can avoid the fee petition morass.
Will Prior Rep Withdraw and Waive Fees?
The only exception to this rule would be if the prior representative agrees to both withdraw and waive any claim for fees. If the prior rep waives fees then SSA will process and pay me under my 25% fee agreement.
I recently spoke to a potential client who has a good case and during our conversation casually mentioned that “I had to fire the first attorney.” I asked her to send me a copy of the prior attorney’s withdrawal and it reads as follows:
“We are advising Social Security that we are withdrawing as your representatives. You may retain new representation to assist you with obtaining entitlement to benefits. Thank you for your interest in our services.”
As you can see, the prior attorney did not waive fees. If I was to take this case, I would have to file a fee petition, which, as discussed above, I will not do.
I wrote the potential client back to tell her that she needs to call the prior rep and ask them to provide a withdrawal letter that includes the sentence “I hereby waive any claim for attorney’s fees in this case.”
If the prior attorney will not waive fees, I advised the potential client to ask the prior attorney how much they wanted for their work. If the prior attorney was claiming $500 or $750 I would probably agree to protect and pay the lawyer for that amount (assuming we win) so that the prior attorney could withdraw and waive fees from SSA.
However if the prior lawyer was claiming $3,500 or $4,000 there would not be enough money involved to justify my efforts.
Key Take-Aways from this Article
So the what you can take away from this article are the following considerations:
- SSA is an extremely dysfunctional agency that has not responded well to the challenges created by the coronavirus pandemic. Despite what I believe to be sincere efforts by most field level SSA employees, the overall system is broken and employees do not have the resources to properly service the public. There is almost no bandwidth or time to provide service or assistance to lawyers who represent claimants.
- Review and question any lawyer or non-attorney rep before you sign any retainer agreement. There is a good chance you will be tied to this rep for the duration of your case.
- You may be upset about the long delays in your case but in the vast majority of cases the delay is the fault of the Social Security Administration as opposed to your lawyer.
- Calling your lawyer weekly asking for a status update does not help anyone. I don’t mind an occasional status update call or email but realize that SSD cases are likely to take 15 to 18 months.
- If you fire your lawyer or rep, make sure to ask if the lawyer/rep will agree to waive fees, or, if not, how much does he/she want for work performed. If you fire a lawyer a year into your case don’t be surprised if the lawyer expects to be paid several thousand dollars. Remember that a “no fee unless we win past due benefits” does not mean that the lawyer is working for free. It means that the lawyer believes in your case and is willing to assume the risk that you may not get paid. If you terminate the lawyer’s services before the case closes the lawyer will expect to be paid for work performed to date.
- If you terminate your representative and he/she does not waive fees, you will find it difficult to impossible to find a new lawyer to take over.
