You may have thought that I was through posting about Social Security's recently proposed changes to the rules on representation of claimants before the agency. Not even close. I keep trying to find the time to wade through the Notice of Proposed Rule-Making (NPRM). The proposal seem problematic to me in so many respects.
Today I am going to ask some questions about a subject that I think the proposal should address, but do not, claimants who change their attorney or representative:
Today I am going to ask some questions about a subject that I think the proposal should address, but do not, claimants who change their attorney or representative:
- What happens with the fee when a claimant decides to fire his or her attorney or representative and hire a different one?
- What happens with the fee if an attorney or representative fires his or her Social Security client or is forced by circumstances to withdraw from a Social Security case?
- What happens with the fee if a Social Security claimant moves to a different area of the country and needs to change to a different attorney or representative?
- What happens with the fee if an attorney or representative dies and a Social Security claimant is forced to seek another attorney or representative?
These are actually long-standing issues at Social Security. Social Security's answer over the years has been that in any of these circumstances, the fee agreement process may not be used. unless the first attorney or representative waives any fee If that is the case, I think the regulations should say so, but I really think the regulations should say the opposite
I have clients who leave me and hire someone else and I pick up clients who have left other attorneys, so I see both sides of this. It is a pain to take a case almost to the end and have the client move far away, leaving me with the difficult task of obtaining a fee through the fee agreement process, when I will not even know when or if the claimant wins. I hate to give up on getting a fee in these cases when I have done most of the work, but I do most of the time. It is also a pain to take on a case near the end, do virtually all the work and have to do it quickly, and then have some other attorney who may or may not have done much work sticking his hand out demanding a good part of the fee. In either case, the fee agreement process is a pain for everyone including Social Security.
I think the interests of justice would be better served if claimants could change their attorney or representative freely and the attorney or representative who ends up with the case could just get the full fee under the fee agreement process. The current situation just makes it too difficult for a claimant to change to a different attorney or representative, because other attorneys or representatives do not want to get involved with the case because of the attorney fee issue. The emphasis should be on letting the claimant select who they want to represent them without being restrained artificially by Social Security's rules. If the change is made as I suggest, there will be times when I will think it terribly unfair to me. There will be other times when some might think I would receive a windfall, but on the whole I am confident that everything will come out in the wash.
Frequently, I talk with the clients of competent attorneys who are mad at them because of how long things take at Social Security and want to switch to me. I often tell them that my clients are probably calling their attorney because they are mad at me for the same reason. No one wants to encourage claimants to switch to a different attorney or representative because of something the attorney or representative cannot control, but there are some attorneys and representatives out there who do not do their jobs. Their clients are unhappy because they cannot get their calls returned and the attorney or representative does not know what they are doing and are not doing what needs to be done. At the moment, it is terribly difficult for claimants in this situation to change to a different attorney or representative because other attorneys and representatives do not want the fee hassles that come when a claimant switches to a different attorney or representative. This is wrong. I think it is more important to allow claimants to change their attorney or representative freely than to protect attorneys or representatives from clients who want to change to someone different.
Even if Social Security sticks to its current position, it needs to clarify one thing. What happens if the claimant switches to a different attorney or representative and the first attorney or representative agrees to waive the fee because he or she makes an agreement with the new attorney or representative on splitting the fee. There have been suggestions from Social Security that there is something unethical about doing this, that each attorney or representative must file a fee petition and that Social Security must settle how much goes to each attorney or representative. I find this preposterous. If the claimant knows what is going on and approves of it and the fee stays the same, what difference does it make to Social Security how the money is divided? There is nothing in the Social Security Act or regulations that requires such a result. It would be a ridiculous way of further impeding claimants who want or need to change their attorney or representative. The uncertainty that some attorneys or representatives now feel exists on this issue makes it difficult for claimants who need to switch to a different attorney or representative. I have plenty of respect for the attorneys who work for Social Security. I once worked as an attorney for Social Security. However, there are some realities of law practice that one cannot experience working for Social Security. We should not be placing an unnecessary roadblock in the way of a claimant who needs to switch to a different attorney or representative because of some theoretical concern of an attorney who has never been in private practice.
I have clients who leave me and hire someone else and I pick up clients who have left other attorneys, so I see both sides of this. It is a pain to take a case almost to the end and have the client move far away, leaving me with the difficult task of obtaining a fee through the fee agreement process, when I will not even know when or if the claimant wins. I hate to give up on getting a fee in these cases when I have done most of the work, but I do most of the time. It is also a pain to take on a case near the end, do virtually all the work and have to do it quickly, and then have some other attorney who may or may not have done much work sticking his hand out demanding a good part of the fee. In either case, the fee agreement process is a pain for everyone including Social Security.
I think the interests of justice would be better served if claimants could change their attorney or representative freely and the attorney or representative who ends up with the case could just get the full fee under the fee agreement process. The current situation just makes it too difficult for a claimant to change to a different attorney or representative, because other attorneys or representatives do not want to get involved with the case because of the attorney fee issue. The emphasis should be on letting the claimant select who they want to represent them without being restrained artificially by Social Security's rules. If the change is made as I suggest, there will be times when I will think it terribly unfair to me. There will be other times when some might think I would receive a windfall, but on the whole I am confident that everything will come out in the wash.
Frequently, I talk with the clients of competent attorneys who are mad at them because of how long things take at Social Security and want to switch to me. I often tell them that my clients are probably calling their attorney because they are mad at me for the same reason. No one wants to encourage claimants to switch to a different attorney or representative because of something the attorney or representative cannot control, but there are some attorneys and representatives out there who do not do their jobs. Their clients are unhappy because they cannot get their calls returned and the attorney or representative does not know what they are doing and are not doing what needs to be done. At the moment, it is terribly difficult for claimants in this situation to change to a different attorney or representative because other attorneys and representatives do not want the fee hassles that come when a claimant switches to a different attorney or representative. This is wrong. I think it is more important to allow claimants to change their attorney or representative freely than to protect attorneys or representatives from clients who want to change to someone different.
Even if Social Security sticks to its current position, it needs to clarify one thing. What happens if the claimant switches to a different attorney or representative and the first attorney or representative agrees to waive the fee because he or she makes an agreement with the new attorney or representative on splitting the fee. There have been suggestions from Social Security that there is something unethical about doing this, that each attorney or representative must file a fee petition and that Social Security must settle how much goes to each attorney or representative. I find this preposterous. If the claimant knows what is going on and approves of it and the fee stays the same, what difference does it make to Social Security how the money is divided? There is nothing in the Social Security Act or regulations that requires such a result. It would be a ridiculous way of further impeding claimants who want or need to change their attorney or representative. The uncertainty that some attorneys or representatives now feel exists on this issue makes it difficult for claimants who need to switch to a different attorney or representative. I have plenty of respect for the attorneys who work for Social Security. I once worked as an attorney for Social Security. However, there are some realities of law practice that one cannot experience working for Social Security. We should not be placing an unnecessary roadblock in the way of a claimant who needs to switch to a different attorney or representative because of some theoretical concern of an attorney who has never been in private practice.
You may comment on this proposal online and I encourage you to do so.
No comments:
Post a Comment