If you're looking for an attorney to represent you in your disability overpayment case, you might find that many disability attorneys will shy away from your case due to Social Security's rules about how attorneys get paid.
There are two ways for Social Security attorneys to get paid: fee agreements and fee petitions. Fee petitions are used for overpayment cases.
As of November 30th, 2022—when Congress raised the disability attorney fee cap—you can expect that a lawyer who represents you in a successful disability claim will take 25% of your disability backpay, or $7,200, whichever amount is less. (Fee agreements approved between June 22nd, 2009, and November 29th, 2022, are subject to the old fee cap of $6,000.)
When your case is over, if you received a favorable determination, the Social Security Administration will forward the attorney's fee directly to your attorney.
Unfortunately, for disabled people who Social Security thinks were overpaid, attorneys don't have much of a financial incentive to provide representation. With overpayment cases, when you win, there's no backpay for you (or your lawyer) to receive. Instead, you win by getting Social Security to say you don't owe them the money they overpaid you. But without backpay, your attorney can't collect a fee.
When attorneys do take overpayment cases, they'll usually have you sign a fee petition agreeing to pay an hourly fee for the time that they spend working on your case. Then, when the case is over, the lawyer has to ask Social Security to approve the fee.
The agency considers several factors when deciding whether a particular fee is fair, including the outcome of the case and the level of skill that was required to handle the case. Social Security can approve the attorney's fee petition request, disapprove it, or modify the fee to a lower amount.
But filing a fee petition can be a time-consuming headache that some disability attorneys don't want to bother with, so they just decide that they won't work on overpayment cases.
Attorneys who decide to take disability overpayment cases will almost always ask you to pay a retainer fee upfront before they start work. A retainer represents an estimate of the number of hours it might take the attorney to work on your case.
For example, if an attorney thinks it would take 15 hours to handle your overpayment case, and their usual rate is $200 per hour, then they might decide to charge you a $3,000 retainer fee before beginning work on your case (15 hours x $200). If the attorney spends more than 15 hours, you'll owe your attorney $200 per hour for the additional work. But if your attorney spends less than 15 hours, she'll return money from your retainer to you at the end of the case.
Lawyers are obligated by professional codes of conduct to keep retainer money in special bank accounts called client trust accounts. After completing all of the work on your case, your attorney will submit a petition to Social Security to review the fee agreement and approve her fee. Once the agency approves or modifies the fee, the attorney can take money out of the trust account.
An attorney can help you by:
But even if you can afford to pay a retainer fee, it might not make financial sense for you to hire an attorney if the overpayment is small compared to the attorney's retainer.
For example, if Social Security says you owe a $6,000 overpayment, and your attorney is asking for $3,000 to work on the case, you have the possibility of being on the hook for $9,000 (the $6,000 overpayment and the $3,000 retainer) if you lose your case.
But if Social Security says you owe a much larger $160,000 overpayment, and your attorney will charge you a $3,000 retainer to begin working on your case, then you might decide that hiring a lawyer is worth it. Even if you lose, the amount you'll owe the attorney for trying to fix the problem is small compared to the entire debt.
If an attorney represented you at an earlier stage in your disability case, you should consider contacting them to see if they can help you with your overpayment. The attorney will already be familiar with you and might be more willing to help than an attorney with whom you don't have that background. Even if that lawyer won't represent you, they might give you a good referral to a legal aid office or another attorney who does handle overpayment cases.
If you handled your own disability claim, you can ask people you trust for referrals to lawyers they have used and liked. You might also try calling different disability lawyers in your community and asking if they take overpayment cases. Once you have a few names, you can meet with attorneys to see whose approach you like best.
You may be able to find a legal aid attorney to represent you in your overpayment case. Legal aid attorneys work for nonprofit law firms whose goal is to provide free legal advice and representation to low-income individuals in civil cases. (A civil case is any kind of case that doesn't involve a crime. Disability cases are civil cases.)
Legal aid attorneys may be more likely to take overpayment cases than some disability lawyers, but their firms often don't have enough attorneys to represent everyone who needs help. They prioritize the types of cases they handle based on their resources and the types of legal issues that are important to low-income people in their community. To find out if a legal aid office will handle your overpayment case, you'll have to contact them.
The largest funder of legal aid offices in the country is the Legal Services Corporation (LSC). You can find your local LSC-funded legal aid office on the LSC website.
There may be other legal aid offices near you that don't receive LSC funding. Many universities with law schools operate legal aid clinics. To find legal aid clinics in your area, try searching for "legal aid clinics near me" in your Google or other search engine web browser.
Updated July 31, 2023