Disability lawyer fiasco, I need to know my options

August 18, 2014 5:14 AM

I recently moved from one state to another and was in the middle of applying for disability, but that's not where the story begins. It starts with deception and a long wait that didn't need to happen (long story inside).

So, I filed for disability in January 2013 for various reasons, and of course I was denied 'round about March of 2013. So, on the advice of others, I got a lawyer -- one of those lawyers that advertise on television. I figured, that's what they do... right? Anyway, I called my lawyer every month as directed to get an update on my case only to be told that my case was "in appeal" and that this state worked slowly. Be patient. Well, in January of 2014, I got tired of being patient and demanded to speak to my case worker instead of whoever answered the phone (I was always told that she was at lunch no matter what time of day I called or that she was with a client if that didn't work). That's when I found out that I'd been denied in August of 2013, AND that Social Security never received an appeal from my lawyer. The case worker I was working with for the law firm claimed they'd sent one back in August after the denial and that they would "take care of it."

So I, again, called them every month and asked them to please update me on my case. I was more forceful this time and asked to speak to the caseworker as often as possible. But instead of the oft-quoted brush-off about my case being "in appeal" I kept getting "We'll call the Social Security office and get back to you." They never called me back. Not once. Ever. I have the phone records to prove it.

Fast forward to this month when I moved to another state (Washington if it makes a difference). I told my case worker in June that I would be moving and could she please see where my case was with Social Security? I never heard from her again. Well, I called Social Security myself last week and was told that my case had been closed (denied) in August of 2013 -- which I knew. What I didn't know was that they never received an appeal from anyone. I called the local office. I called the office of adjudication, and I called the national office. They all said the same thing. Case closed. No appeal.

Now, YANML but what do I do from here? The case was closed a year ago. I have phone records saying that I called my lawyer every. single. month. sometimes three times a month (to get answers on why they never called me back) for over a year and they just flat out lied to me? Why would they do that? What can I do about it? Do I have to start the whole process over again? Hire another, local lawyer? Do I sue the previous lawyer for malpractice? I'm so upset about this I could just scream.

posted by anonymous to Law & Government (11 answers total)

No advice, but a guess as to the why they might do that: most TV lawyers for things like this get paid on contingency, meaning they take a percentage of what you recieve from Social Security once everything is all said and done. And the way disability works is once you do receive benefits, they'll backdate your eligibility and pay out all of the payments you should have been receiving up to this point.

It doesn't make it right, in fact, the lawyer is very much in the wrong, but in this case, the contingency setup provides an incentive for them to drag their feet and draw this process out for longer than necessary.
posted by terilou at 5:47 AM on August 18, 2014

While Social Security cases are usually done on contingency, there's a limit to how much the lawyers can charge. (I think it's $6000, so you pay X% of your back benefits, but at most $6000 (or whatever the limit really is).)
posted by hoyland at 5:53 AM on August 18, 2014 [2 favorites]

I'm having trouble following your question, but if you are not getting the service you expect from your attorney, get a different one who is more responsive to your needs.
posted by dfriedman at 6:20 AM on August 18, 2014

Clients who find that their lawyers are unresponsive or fail to take appropriate action in advance of deadlines often have a basis for filing a grievance with the state bar. The bar associations are typically very interested in protecting clients and ensuring that licensed lawyers comply with the rules. In some states, disciplinary action can include compensation to the injured client. I am not sure what state your lawyer is in, but as an example, here is the Texas page describing how and when to file a grievance.
posted by monju_bosatsu at 6:27 AM on August 18, 2014 [7 favorites]

Lawyers representing social security claimants only get paid on contingency, as far as I know, unless they do the case pro bono. This means they get a cut of your back benefits when they win the case, and only get paid when they win the case - if they lose there's no charge to you. There's no incentive to drag things out - that just delays getting paid, and letting dates slip past means losing money, doing more work, and having clients get upset.

IANYL and I have no idea what happened with your former attorney and why they missed your appeal, had your dates wrong, and were totally unresponsive, but the things I would suggest here are 1) getting a new lawyer and explaining the situation to them, and 2) complaining about your previous attorney to the state bar where they were practicing.
posted by bile and syntax at 7:03 AM on August 18, 2014

Not your lawyer or giving legal advice.

I think the best way for you to deal with this is:

1) File a new claim for disability benefits where you now live. Claim the original onset date of disability. INCLUDE a statement of your request to RE-OPEN the prior claim, based on the failure of counsel to pursue your claim as promised.

2) Keep any documentation of your efforts with the prior counsel and provide them if asked and/or at the time of hearing on your claim if it goes to that length.

3) You may want to obtain new counsel in your new area. My prejudice, but I would suggest looking for a local firm who regularly represents claimants. You can probably wait until after the initial denial, but given the added complexity of seeking to "back-date" your claim date you may benefit from earlier representation. Make sure you let the prospective counsel know upfront you will be seeking to go farther back for benefits. This both alerts them to a somewhat greater complexity and lets them know their contingency fee may be somewhat larger since benefits may be paid for a longer time period.

4) Follow the advice, above, about reporting your previous representative to both the appropriate State Bar AND to the Social Security Administration, which authorizes representatives to act.

Good luck!
posted by uncaken at 7:23 AM on August 18, 2014 [1 favorite]

This article has a good series of steps to take. I especially think you would benefit from getting ahold of your client file. It might help with filing an appeal.
posted by annsunny at 2:17 PM on August 18, 2014

If you are in a big city there are generally non profit agencies that deal with these things. Find one of them. Here in Chicago if it had been that long lawyers generally restart in my experience. Sometimes they will try to reopen the case of you have extensive documentation. It really just depends.

And it takes years for a case to go through. The general time from application to approval here is 2-3 years. But each State handles it a little differently.
posted by AlexiaSky at 5:06 PM on August 18, 2014

I practice in this field, but this is not legal advice. Look for another lawyer who specializes in Social Security disability claims. Tell them that you want to file a new application with a reopening of your old case for good cause. Explain what happened with your old case.

In reality, the appeals process for Social Security is near worthless unless you want to appeal in federal court. The Appeals Council is basically a rubber stamp for the administrative denial. It's not unheard of for a case to linger at the Appeals Council for a year or more without anything your lawyer can do about it. That doesn't excuse your former lawyer's behavior in this case, but it's something to keep in mind.
posted by Dignan at 8:21 AM on August 20, 2014

I would also call the state bar where your former attorney practices, and get their advice about how to proceed.
posted by annsunny at 8:00 PM on August 22, 2014

I know I'm late to the party, but you might find this website helpful. It's the social security's website on the rules of conduct for attorneys that represent disability clients and what recourse you have if they don't follow them.
posted by patheral at 1:40 PM on October 16, 2014