If you are suffering form long term disability, you could file a claim for payment of long term disability benefits. Should you do it yourself or get a lawyer to help you? How much does a disability lawyer cost?
The cost of a long-term disability lawyer will depend on the institution you are claiming disability benefits from.
If you are claiming from the Social Security, there is a maximum amount the disability lawyer can get, as a general rule, regardless of how much you are awarded.
If you are claiming from a insurer covered by Employee Retirement Income Security Act (ERISA), your lawyer can handle your case on an hourly basis or on contingency. There is a provision in the law where you can petition the court to direct the insurer to pay for your attorney’s fees. This depends on the discretion of the judge.
If you are claiming from a private insurer not covered by ERISA, each party pays for his own attorney’s fees under the American rule. Your lawyer will most likely handle the case on contingency, which means the lawyer is entitled to 30% to 40% of the amounts recovered.
Under Social Security Administration (SSA) guidelines, a disability lawyer cannot charge upfront fees from the client, except for reasonable fees to pay for actual costs, such as obtaining copies of medical records, travel expenses, filing fees, postage, deposition costs, etc.
SSA guidelines also limit how much a disability lawyer can take: 25% of the amount recovered or $6000, whichever is less. For example, if your lawyer was able to acquire a favorable judgment for you in the amount of $25,000 disability benefits backpay, 25% of that amount is $6250. Since there is a maximum limit of $6000 that a Social Security disability lawyer can take, the lawyer will only get the maximum of $6000.
There are exceptions to this general rule:
- When you appeal your case after hearing before an Administrative Law Judge (ALJ), and the Appeals Council agrees that the ALJ was in error and sends back your case for a new hearing, the lawyer can request for more than $6000. However, such request is still subject to SSA approval.
- When two lawyers work on your case, such as when you fire the first one and get a new one, the two lawyers’ fees may be more than $6000. These lawyers have to file a fee petition with the SSA to request for more than the maximum amount of $6000.
If you are claiming for long term disability benefits from an insurer covered by ERISA, your disability lawyer can charge an hourly rate or a contingency fee. In a contingency fee arrangement, your lawyer will request for 30% to 40% of any amount recovered plus actual legal costs (such as getting copies of documents, travel expenses, postage fees, etc.). If the lawyer charges an hourly fee, your lawyer can file a petition with the court to direct the other party to pay for your attorney’s fees. Under 29 USC § 1132(g)(1), a court may award fees and costs, as long as the attorney has achieved some degree of success on the merits. Hardt v. Reliance Standard Life Ins. Co., 560 US 242 (2010).
In determining whether the ERISA insurer should pay the other party’s attorney’s fees, the following factors are considered:
- Whether the ERISA insurer acted in bad faith
- Whether the ERISA insurer has the ability to pay the attorney’s fees
- Whether the award of attorney’s fees will deter others from engaging in similar acts
- Whether the attorney was able to obtain a benefit for other plan participants in a similar situation through the litigation
- Whether there was merit in the ERISA insurer’s position
An award of attorney’s fees by the court only includes the lawyer’s time spent litigating before the district and appellate courts, and not during the administrative process within the ERISA insurer.
If you are claiming for long term disability benefits from a private insurer (not Social Security nor covered by ERISA), the lawyer may charge an hourly rate or request for a contingency fee arrangement. Usually, it is a contingency fee arrangement since the client cannot pay the hourly rate due to the disability. As previously mentioned, the lawyer does not receive anything in a contingency fee arrangement, except a range of between 30% to 40% of the amount recovered if the claim is successful (either through settlement or award).
When discussing the legal fees of your attorney, take note of the following: (a) actual costs (sometimes called out-of-pocket expenses); and (b) contingency fee on future benefits.
Actual costs or out of pocket expenses
Actual costs refer to the costs of your claim, excluding your attorney’s fees. These actual costs include travel expenses of your attorney, long distance phone calls, photocopying fees, transcript and deposition costs, and filing fee, to name a few. If your attorney handles your case on contingency, he may request for an upfront fee to pay for the actual costs. This amount is deposited in a trust account and your attorney must inform you every time he makes a withdrawal. Usually, this withdrawal is done when the attorney submits an itemized billing of the costs associated with your claim.
Contingency fee on future benefits
When you are declared to be disabled, the judge may award you backpay starting from the date you were found to be disabled. In addition, you will begin receiving disability benefits from the date of judgment. Check with your lawyer whether contingency includes your future disability benefits. If you feel it’s too much to give a portion of your monthly check to your lawyer, shop around for other attorneys.
When your disability lawyer proposes a contingency fee arrangement, remember that you can always negotiate. If the lawyer proposes 40%, make a counter-offer of 30%. Your lawyer will know if your case is strong because disability is easy to prove with medical records and the opinions of medical experts.
Claiming disability benefits does not have to be difficult or expensive. A good disability lawyer will be able to guide you through this process and will improve your chances of a successful claim. Should you need assistance, we, at the law offices of Albert Goodwin, are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can call us at 718-509-9774 or send us an email at firstname.lastname@example.org.