Should I Hire a Disability Lawyer or a Nonattorney Advocate?

If you decide to hire someone to represent you at your Social Security disability hearing, you can choose either a disability attorney or a nonattorney advocate.

In both cases, the person you hire will not be paid unless you win your disability claim. Both are paid directly by the Social Security Administration (SSA) out of your back payment benefits. Both attorneys and nonattorney advocates are entitled to the same fee amount for representing a disability applicant.

What Is a Nonattorney Disability Advocate?

A nonattorney advocate (or "representative") is a professional who supports you when you're trying to get disability benefits from the SSA. The advocate answers your questions, helps you fill out the application for benefits, and works with your doctors to get the proper records.

An advocate can help you complete your application in a way that's accurate but will help persuade the SSA that you have a disability that prevents you from working. Claimants (applicants) who complete applications on their own often make major mistakes that they can't undo later, from underestimating their physical limitations to overestimating their work responsibilities.

What's the Difference Between an Attorney and Nonattorney Advocate?

The biggest differences between an attorney and a nonattorney advocate are their education levels and training.

Attorney. To become an attorney, an individual must have the following qualifications:

• a bachelor's degree (four-year college degree)
• a juris doctorate (J.D.) degree (usually a three-year program of legal studies), and
• admission to a state bar. Membership in a state bar requires:
  • passing a bar exam
  • passing a criminal background check, and
  • completion of continuing legal education courses.

Nonattorney advocate. The SSA has established the following requirements for nonlawyer representatives to get paid directly by Social Security for helping someone with their application:

• a bachelor's degree or "equivalent qualifications derived from training and work experience"
• passage of a written exam administered by the SSA
• passage of a criminal background check
• professional liability insurance, and
• completion of continuing education courses.

Are There Times You Need an Attorney Instead of a Nonlawyer Representative?

Both lawyer and nonlawyer representatives know Social Security's rules and procedures, the medical evidence you need to win benefits for your particular condition, and how to fill out disability applications. Nonlawyer advocates and professionals who work with SSDI and SSI applicants are actually more likely to spend a lot of time helping an applicant fill out the application and get all of the information the applicant needs. Some lawyers don't have time to help at the application stage, and will actually ask the applicant to call back after they get denied.

When it can make sense to hire a lawyer instead of a nonlawyer advocate is at your appeal hearing in front of an administrative law judge (ALJ). Disability attorneys are skilled at:

• making sure you're properly prepared for questioning at your hearing
• knowing how to question you at the hearing
• cross-examining the vocational expert at an appeal hearing, and
• applying the case law from other cases to come up with theories of disability.

You might consider working with a firm that has a large staff of professionals who can help you gather information and apply for benefits, but that also can provide an attorney who will represent you at the appeal hearing.

Differences in Hiring a Disability Attorney Versus a Nonattorney Representative

When deciding whether to hire a disability lawyer versus a nonlawyer representative at the hearing stage, here are a few additional considerations:

• Attorneys are bound by professional conduct rules to zealously represent their clients, while nonattorney representatives are not (but this does not mean they don't).
• Attorneys are bound to keep anything you tell them confidential due to the attorney-client privilege, while nonattorney representatives are not.
• Attorneys have many years of specialized training, which might better enable them to spot and resolve potential legal issues and to craft legal theories for reasons you should get benefits.
• Attorney representatives can appeal your claim to the federal district court level, while nonattorney representatives cannot.
• You can file a complaint against an attorney through your state's grievance commission if you feel your attorney did not act in your best interest; there is no such recourse with nonattorney representatives.

At the hearing level, statistics show that attorneys have higher approval rates. These numbers are sometimes disputed by nonattorney representatives, however, who say that the statistics for nonlawyer representatives reflect hearings where the claimant is represented by a family member or other untrained individual.

In a recent survey we sent to our readers, we compared disability applicants' outcomes using disability lawyers versus using nonlawyer representatives. The approval rates using nonlawyer representatives at hearings were about midway between approval rates for readers with lawyers and those who represented themselves. For the details, see our survey statistics on whether it makes sense to use a nonlawyer representative.

Is There a Difference in Cost Between Nonlawyers and Lawyers?

No matter what type of representative you hire, the most you'll pay is 25% of past-due benefits (the lump sum of monthly benefits going back to when you first became disabled or applied for benefits). Both lawyer advocates and nonlawyer advocates are regulated by Social Security in the fees they charge, and they charge the same fees. Even disability advocates who work for legal aid agencies almost always charge 25% of disability backpay for their services. Both types of Social Security disability advocates are required to work on "contingency," meaning they get paid only if you win your case.

In addition, both lawyer and nonlawyer advocates can charge fees for out-of-pocket costs, such as copying and postage.

Hiring a General Practice Attorney Versus a Disability Expert

Attorneys can practice all types of law in the state where they are licensed, meaning an attorney might only dabble in disability law. Most lawyers and nonlawyer experts who only help disability claimants, however, specialize in disability law. This means their knowledge is more focused than that of a general practice attorney.

Finding Expert Help

Read our article on finding a legal professional to help you with your disability claim.

_{Updated November 29, 2021}