Why You Should Avoid Changing Lawyers in the Middle of Your Case

An experienced lawyer can be very helpful to you and your Social Security Disability case. Your lawyer can evaluate your case and suggest a strategy to win your case. After handling hundreds of cases, most attorneys have a fairly good perspective as to what cases are winnable and what cases are not, and what it takes to win a case. While an attorney’s opinion is not a determination of how your case will end up, he can offer you the benefit of experience. More importantly, if you decide to hire an attorney, he will make sure your case file is up-to-date with all medical records. Additionally, he will “translate” your medical problems into work limitations so that Social Security can evaluate your claim properly.

The disability process, however, is often quite long. Many people can wait almost two years for a hearing. Some claimants become frustrated with the slow pace of the disability adjudication process and think about hiring a new attorney. They become angry at how long it takes to even get a hearing and they think that their lawyer should be doing more to move the process along.

Except in limited cases, it can be a bad idea to change lawyers in the middle of your case.

First, you should realize that your attorney doesn’t have any control at all over the long delays in the Social Security disability decision-making process. Social Security backlogs are at record highs across the country. Hearing offices are understaffed and judges have very little help. Over the past 10 years, claims have doubled while the number of judges has declined 10%. If there were anything your lawyer could do to speed things along, he would be doing it. Most Social Security lawyers do not get paid unless they win the case, so there is no advantage to them in delaying the process. The point is that your attorney cannot control Social Security’s backlog, nor can you expect him to secure special treatment for you. If another disability lawyer tells you that he has a secret way to move your case to the front of the line, you will probably be disappointed.

A second reason to stay with your current lawyer relates to the fee application process. Social Security lawyers generally accept disability cases under a contingency fee contract. This process is simple. A “contingency fee” means that there is no legal fee due unless the lawyer wins your case. An attorney’s fee is typically 25% of any past due benefits collected for you, with a limit of $5,300. The lawyer does not have to file a detailed time and billing statement. Social Security will automatically withhold and pay the lawyer 25% of past due benefits up to $5,300.

Almost every contingency fee agreement provides that if the client terminates the attorney, the attorney has the right to ask for fees representing work actually done. In this case, the lawyer will file a detailed fee petition, setting out time records, expenses, and billable time. Legal services are not free. A contingency fee agreement is a trade-off. The client can retain an attorney without paying any money up-front, and the lawyer takes the risk that the judge will not approve the case in exchange for a percentage of the recovery. If, however, you choose to terminate the agreement before the case goes to hearing, your lawyer can and will ask Social Security to approve a fee based on the time actually expended. When this happens, the fee application is no longer simple. Your lawyer will itemize each and every action he performed on your behalf and present this petition to the judge for approval.

If you choose to change lawyers in the middle of your case, Social Security will require both lawyers to file a fee petition for work performed. Your new lawyer will not be allowed to enter into a 25% fee agreement. He, too, will have to file a fee petition to have his fees approved. If you go through two or three lawyers, you may find that more than 25% of your past due benefits are being used to pay for legal services. If your prior
lawyer will waive any claim for fees, the new lawyer can then use the contingency fee agreement process.

As a practical matter you should, therefore, avoid changing lawyers in the middle of your case. Choose your lawyer carefully, and unless your lawyer is clearly incompetent, ill, or dead, you should stick with your present lawyer throughout the entire disability process.