I'm hearing that Binder and Binder, which is in Chapter 11 bankruptcy, is telling Social Security's hearing offices that it can no longer afford to update medical records on the people it represents. Binder and Binder is asking Social Security to do it.
Social Security isn't going to do it, at least not routinely. Many decades ago the agency could do this but not today. The staffing isn't there. This means that Binder and Binder's clients won't be competently represented. Most people would argue that they never were but now there's no argument.
This raises some questions in my mind:
- What kind of idiots are running Binder and Binder now? The company is still in business. They're still paying their employees. They're still paying rent on their offices. They're still paying for phone service. How can they continue to stay in business if they're not going to pay for medical records? It's basic to what they do. Getting medical records is not inexpensive but it's not that big a deal. It only runs to about 2% of my firm's total expenditures, far less than what my firm pays in salaries and rent.
- Charles Binder is listed as the attorney of record for most of the claimants that Binder and Binder represents. While the Binder and Binder that just went into Chapter 11 bankruptcy isn't a law firm, Charles Binder is definitely licensed to practice law. What are his ethical obligations as an attorney when he knows that he is incapable of providing them with competent representation? Doesn't he have an ethical obligation to withdraw from representing them or at least to warn them? If Binder and Binder is sending letters to Social Security saying that it can no longer pay for medical records, is it sending copies of this letter to its clients? Shouldn't Charles Binder insist that this letter be sent to his clients?
- What are Social Security's obligations in this situation? Should it warn Binder and Binder's clients? Is there anything more it can do? Could it contact the New York bar about the situation since that is where Charles Binder is licensed?
21 comments:
I find this piece very surprising. Binder and Binder never fronted the costs of medical records for their clients, at least since 2004 when I was hired there. They would request records and make the clients pay.
Perhaps now they are so indebted that they cannot afford the staff or the postage to request records or even ascertain which records are needed for the case.
Interesting situation, good questions...as the cowboy hat turns...
The notion of Binder claims becoming even sloppier than they already are is a little akin to a zen koan or maybe trying to imagine dividing by zero. You could spend a lifetime trying to wrap your head around it, and it would never completely make sense.
I think what is happening here is that the equity partners who own the company want their money so they are cutting all expenses and reducing staff and will ride out these awards with little or no expenses. This is why it is unethical in every bar for an attorney to work for a non attorney as is the situation here and with many other national firms. The lawyer's independent professional and ethical judgment is compromised with such an arrangement. The claimants are the ones who will suffer. Yet bar associations seem to turn a blind eye.
Please.....when has Binder ever requested medical records? I have seen plenty of their clients come to me over the years who had done all that themselves. I have copies of letters where Binder asked their clients to get them records and provided forms to give to the doctor. If they did not, the client got dropped/the appeal never filed. Perhaps they did some orders for hearing?
1:31
When this situation involving an attorney who works for a non attorney or investment group occurs the lawyers or firms involved should be reported to their bar and let them sort it out. SS is not going to do it.
This entire fiasco is a very impressive example what can truly be accomplished when greed and stupidity are appropriately combined and properly used on a nationwide scale.
I work for SSA. I would love to report this type and other types of unethical attorney behavior, but my job requires me to send all attorney bar complaints up the chain of command. I am absolutely forbidden from making any such complaint myself, and apparently Federal law allows/excuses my inaction to my State Bar. I know of ALJs and attorneys that have sent some pretty significant ethical allegations up the chain with no action ever taken, so it's widely viewed (just like with reporting fraud that isn't some huge scheme) that it isn't worth the time to even bother since it's nearly 100% likely nothing will ever be done.
So yeah, private attorneys, have at it, because we SSA folks can't do anything.
Binder also has a practice of using "local counsel" as shills to litigate federal appeals in jurisdictions where Binder attorneys aren't licensed. Local counsel e-signs every filing, but he/she does no actual work on the case. If the claimant prevails, Binder swoops in with an affidavit for attorney fees, claiming to have personally performed all of the work from intake to remand. Presumably, the purpose of this charade is to get around court rules requiring that attorneys practicing before the court be admitted to the local bar (especially where the out-of-state attorneys would appear too often to qualify for pro hac vice admission).
I am re-posting a comment made in a prior thread which seems relevant to this thread:
You [Charles Hall] said Binder and Binder is not a law firm. However, my understanding is that some of their representatives are licensed attorneys. Is it ethically ok for lawyers to practice law with non-lawyers?
I don't have it in front of me but I remember seeing a Florida ethics opinion where a lawyer wanted to work for a non-lawyer social security firm as an employee and the opinion stated that it was prohibited. The basis of the opinion was that representing claimants before social security was the practice of law. Since the lawyer is practicing law, he is subject to the Disciplinary Rules and the fact that non-lawyers can also practice before SSA does not affect this.
I got news for you. It has been SSA past policy for the Judge/agency to order records in these situations. If the rep doesn't do it, and the Judge doesn't do it, the AC is going to remand for failure to develop the record. Binder isn't the only rep making these request. They are showing up with increasing frequency whether sole practitioner or regional firm.
Anonymous @ 5:41 here is the ethics opinion you were looking for:http://www.floridabar.org/tfb/tfbetopin.nsf/SearchView/ETHICS,+OPINION+95-1?opendocument
Pretty sure this is standard in every state. Every attorney who works for a non attorney firm representing claimants is running afoul of this and fee sharing rules and continues at their own peril.
Charles, we sure would be interested in knowing your sources on this. If they are legit, aren't you obligated to file a bar complaint under your ethical obligations?
B&B has never paid for client medical records; the clients have always been responsible for the costs associated with obtaining their records.
Interested to know if you front the cost of your client's medical records, Charles? Perhaps that's just a CODB for you, but it seems rather risky to front that sort of money when you don't get paid unless they win their case.
Our law firm always fronts the cost of securing a client's med records as we don't expect clients who haven't been able to work for years to have the $$$ to pay the copy fees.
If the case is allowed, we bill the client for those expenses. If the case is denied, we eat the expense.
Anonymous at 2:19 pm: ditto, that's how my firm does it as well.
I have handled 5,000 Social Security Disability cases since 1979. At the beginning of my practice ODAR (then called OHA) developed the record based on information we provided. OHA also paid for the records. Of course if we were aware of medical records we would obtain the records. At some point in the early 1990s OHA stated that they did not have the time and personnel to obtain the records and that the attorneys should. Since then my office procedure is to obtain the records, pay for the records and bill the client. My attorney fee contract specifies that the client is responsible for re-payment. Some clients re-pay my office as soon as we send a bill, others wait until the case is over (successfully) and pay, many other client who win never pay. Some of them make excuses like you did not need those records or you didn't do anything for me. It is perfectly ethical for an attorney to front costs for the client in a case when the client is unable to do so. Such arrangement is ethical as long as the client is ultimately responsible. On the other hand, I object to Binder and Binder and their clients being given preferential treatment by ODAR. Someone mentioned that Binder and Binder had pull with NOSSCR. That is true in that Charles Binder is married to the former executive director of NOSSCR. For some reason that fact was never revealed to the NOSSCR members at large. Only a select few of the inner NOSSCR circle knew that.
Binder has NEVER paid for records. EVER. Not ever. They always ask the hearing offices to subpoena them if they are "deemed necessary." This has been the case for many years now. Nothing new.
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