Can I Fire My Disability Lawyer?

Hiring a Social Security lawyer is supposed to make the disability determination process go more smoothly, not cause you additional headaches. So if you’re unhappy with the way your attorney is handling your application for benefits (“claim”), you don’t have to stick with them. But before you make the decision to fire your attorney and get a new representative, you should consider the reasons why you want to fire your lawyer and understand how it could affect you.

Should You Fire Your Disability Attorney?

Disability claimants sometimes become frustrated with their lawyers because it takes so long for Social Security to make a decision. But (with few exceptions), attorneys aren’t usually able to significantly shorten the time it takes for the agency to process a claim or schedule a hearing. Make sure that you have realistic expectations about the typical time frame for getting benefits and what your attorney can and can’t do to help your claim get approved faster.

Reasons Not to Fire Your Disability Lawyer

Because it might be several years from the date you first applied for benefits until you receive a notice of award, it’s important to be patient. The Social Security Administration (SSA) is a large bureaucracy that handles millions of disability claims, and each claim must be reviewed to certain legal standards. Your lawyer’s main goal is to make sure that your claim meets those standards. With that in mind, you may want to rethink firing your attorney for the following reasons:

• You haven’t gotten benefits yet. On average, disability applicants wait two years before their claim is approved. Attorneys have limited options at their disposal to significantly speed up the time it takes for you to get a favorable outcome.
• You don’t hear back immediately. Lawyers have a duty to respond to clients, but also need to prioritize their obligations. Your attorney might not get back to you right away because they’re obtaining your medical records or preparing your appeal paperwork.
• You’ve been denied before a hearing. Most disability claimants are denied at least once before they’re awarded benefits. Your best chance of getting approved is at a disability hearing, which is the stage of the process where a lawyer is most useful.

Remember that your attorney is human too, and is likely also frustrated with how long it takes the SSA to give you a decision on their claim. Because disability lawyers don’t get paid unless (and until) you win, they aren’t thrilled either when having to deal with agency roadblocks or uncooperative doctors that can slow down your case.

Reasons to Fire Your Disability Lawyer

That said, not everything a disability attorney does (or doesn’t do) should be given the benefit of the doubt. Your attorney has a professional obligation to act ethically and openly in your best interests. Even if they aren’t doing anything wrong, you might simply not want to have that particular lawyer working on your claim. Consider firing your attorney if:

• You never hear from them. Your attorney shouldn’t be ignoring your calls or not responding to you in a reasonable amount of time. If you feel like you’re getting the runaround or your questions aren’t being answered, consider looking for a new lawyer.
• They don’t know the basics. Lawyers must conduct due diligence to be effective advocates for their clients. Your attorney doesn’t need to memorize every detail of your claim, but they should be familiar with the fundamentals, like your severe impairments.
• You don’t get along. While you don’t need to be best friends with your attorney, you should both be on the same page about what your needs are. Choose a lawyer whom you feel comfortable talking with about your health issues.

Before you go to the “nuclear option,” have a conversation with your lawyer about what’s not working for you regarding their representation. It’s possible that they took on a larger caseload than they were able to handle without realizing it and can pass your case to another attorney in their firm, letting you skip the hardest part of finding a new lawyer.

Is It Normal Not to Talk to Your Lawyer?

This is a more complex question than it appears at first glance. Yes, it is “normal” not to hear from your lawyer for a while, but it isn’t normal to never hear from your lawyer. Most of the work lawyers do on a disability case involves sending records request forms or reviewing medical documents. These are routine “behind the scenes” activities that many attorneys don’t see as necessary updates requiring client contact. Factor in the time spent waiting to get a decision from the SSA (during which there’s not much for your lawyer to do) and you may go several months without hearing from your attorney.

How Often Should You Talk to Your Disability Lawyer?

Whether you think “no news is good news” or get nervous without regular check-ins is something that’s important to discuss with your lawyer. Some people are fine with long stretches of no contact, while others feel more comfortable with periodic updates even during periods of limited activity on your case. Knowing that you and your attorney are on the same page about communication styles will make for a much more pleasant experience.

A good rule of thumb is that you should be talking to your attorney more often as your case development approaches certain milestones (namely, your disability hearing). Recently, the average wait time between requesting a disability hearing and the date your hearing is conducted has been about eight months, and you can expect to speak with your lawyer relatively infrequently during that time.

As your hearing date approaches, your attorney should ideally be contacting you one month, one week, and one day before the hearing in order to make sure all your medical records are intact, conduct pre-hearing prep, confirm your manner of appearance, and address any last-minute issues that may arise. After the hearing, your lawyer should be available for a debriefing to let you know how the hearing went and what the next steps are.

What to Do When Your Disability Lawyer Stops Communicating or Responding to You

With the above in mind, if your representative has gone silent at a crucial time, you can take certain steps to escalate your concerns within the law firm. Contact the managing attorney and firmly but politely request a status update on your case. Document your contact attempts and put your communications in writing (with a copy for yourself) so that you have a paper trail if things go sideways (unlikely, but better safe than sorry). If you still don’t get a response, you may need to schedule an appointment with the firm to meet your attorney in person.

If your firm never resolves the breakdown in communication, you can file a complaint with the state bar association. A single missed deadline or slow response is unlikely to result in disciplinary action, but it can be evidence of a pattern of non-communication that bar associations do investigate.

When Is a Mistake on Your Case Malpractice?

Not every error that an attorney makes rises to the level of malpractice. This would be an impossible standard to meet, and the law doesn’t require that all attorneys be perfect. So if your attorney acted within the bounds of professional conduct and the confines of the law, they’re unlikely to have committed malpractice. A successful claim for malpractice requires that you’re able to prove four elements:

• Your lawyer had a duty of care to you. This element should be fairly easy to show, since your attorney takes on that duty when you hire them.
• Your lawyer breached this duty. That means that your attorney didn’t act reasonably given the circumstances.
• You suffered some sort of harm. For disability claims, this usually means that you didn’t receive monetary benefits.
• The harm was caused by your lawyer’s breach of duty. You must show that “but for” your lawyer’s mistake, you would have been awarded disability benefits.

Taken together, this essentially means that in order to establish malpractice, you’ll need to show that your attorney made an unreasonable error that, had the error not occurred, would have allowed you to win your case and collect Social Security payments. This can be quite difficult, since you’ll essentially need to prove the merits of your claim anyway (meaning that you would have succeeded in being considered disabled if your attorney hadn’t made a mistake).

At What Stage Should I Fire My Disability Attorney?

If you already talked to your attorney and still want to change lawyers, you should also consider where you are in the disability process before deciding whether to fire your attorney. Disability lawyers are paid only if and when they win your case, so you’ll have to sign a new fee agreement each time you get a new lawyer. Fee agreements authorize your representative to collect 25% of any back due benefits you’re entitled to if you win your claim, up to $9,200.

Many attorneys are reluctant to represent somebody who fired their old representative because it complicates collecting their fees. That can make it difficult for you to find a new attorney, especially if you’re close to your hearing date. Your old attorney is unlikely to waive or release fees for the work they did preparing for your case, meaning that if you hire a new lawyer, both attorneys will have to file a fee petition with Social Security in order to get paid.

Fee petitions are very time-consuming, so some lawyers consider them not worth the effort and will decline to take cases involving them. And if the fee petition is granted, the attorneys are allowed to collect more than the $9,200 fee cap, so you might end up paying more out of your back pay than you would if you had stayed with your original attorney. You may want to factor these cost considerations into the decision to fire your lawyer.

How Do I Fire My Attorney?

Firing your attorney isn’t a decision that you should make lightly. If you’re unhappy with your current representation, you first should speak to your lawyer and explain your dissatisfaction. Honest communication with your attorney can help address your concerns and avoid the hassle, risk, and expense involved in hiring a new disability advocate. If you do decide to seek new representation, follow the steps below to help the transition go smoothly.

1. Contact Your Attorney

Inform your lawyer that you don’t want them to represent you anymore. You can call or email your attorney or law firm. Giving them a heads up that you’re about to formally decline their representation can make it easier for your new attorney to obtain your case file and collect fees.

2. Notify Your Attorney in Writing

Write a letter saying that you no longer want your lawyer to represent you. The letter doesn’t have to be very long or involved. If you wish, you can briefly state the reasons why you want to end the attorney-client relationship. Ask your former attorney to submit a formal withdrawal to Social Security.

3. Send a Copy of the Letter to the Social Security Administration

Submit a copy of your letter to the disability office handling your claim. If you’re not at the hearing stage of the disability process, send the letter to your state Disability Determination Services. If you’re waiting for a hearing or already have one scheduled, send the letter to the Social Security Office of Hearings Operations handling your case.

4. Follow Up With Social Security

Contact the SSA a few weeks after you’ve submitted your letter to make sure the agency doesn’t still have your previous lawyer attached to your claim. You can ask the SSA to confirm in writing that your attorney has formally been withdrawn from representation. The agency can also provide you with your disability case file so you can give it to your new lawyer.

Frequently Asked Questions About Firing Your Disability Lawyer

Here are some frequently asked questions (FAQs) about firing your disability lawyer.

Will Firing My Disability Lawyer Affect My Benefit Amount?

Firing your disability lawyer won’t affect the ongoing monthly amount of Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) you’ll receive. But if you fire your attorney, hire a new representative, and your previous lawyer doesn’t agree to waive or release fees, your past and present lawyers will both need to file a fee petition, which allows them to collect more in fees than the typical fee cap. And because that money comes out of your back due benefits, you might have a larger chunk taken out to pay for both your old and new lawyers.

Do I Still Have to Pay the Lawyer I Fired?

It depends. If you don’t win your case, you don’t have to pay any attorney who worked on your claim, period. But if you win benefits with your new representative and the lawyer you fired submits a fee petition that is approved by Social Security, the agency will pay the lawyer you fired in addition to your current lawyer, usually by taking the amount approved in the fee petition out of your back due benefits.

Can I Fire My Lawyer Even If We Have a Contract?

Yes, you can fire your disability lawyer even if they already signed and submitted Social Security Form 1696, Appointment of Representative. You’re allowed to switch lawyers at any time, provided you have your new representative sign, date, and submit Form 1696 to the SSA.

Choosing the Right Lawyer

Disability claimants have many choices when it comes to their representatives. Some attorneys work for large law firms that can also help them with VA disability benefits or workers’ compensation claims. Other lawyers work for small firms or as solo practitioners and focus exclusively on Social Security disability cases.

Before you choose a new lawyer, it’s a good idea to let your potential representative know what you didn’t like about your previous attorney and ask questions about how the lawyer will handle your claim. Make sure that your new attorney or law firm is the right fit for you so that you can both get the most out of your working relationship.