Today the National Organization of Social Security Claimants’ Representatives (NOSSCR) advised its members that HR 4532, the “Social Security Disability Applicants’ Access to Professional Representation Act of 2010″ was signed into law by President Barack Obama on February 27, 2010.
This legislation is important because it permanently enacted fee withholding and direct payment of fees in Supplemental Security Income (SSI) cases and allows non-attorney representatives the option of being directly paid for representation of claimants in Social Security Disability Insurance (SSDI) claims and SSI.
Both of these provisions were enacted as a five-year demonstration project in the “Social Security Protection Act of 2004” that was set to sunset on March 1, 2010. By signing the bill on February 27, 2010, President Obama has allowed the Social Security Administration to continue to withhold fees for representation provided in SSI claims.
Importance of Fee Withholding in SSI Claims
Prior to SSI fee withholding, it was difficult for individuals pursuing only SSI claims to find representation. (SSI is a poverty-based disability program that is available only for individuals with little or no income or assets. Normally individuals that only qualify for SSI have limited work histories). Since there was no avenue for direct payment in SSI only claims prior to the demonstration project, it was difficult for legal representatives to be paid in SSI claims. Although the Social Security Administration would approve an SSI fee, attorneys were required to collect the fee directly from the individual that was awarded benefits.
I am happy to see that the SSI fee withholding provision has now become permanent. This will help individuals that only qualify for SSI payments to continue to receive representation for their claims. If this bill had not been passed, it is likely that a large population of disabled individuals would have lost access to legal representation.
Concern about Non-Attorney Representative Provision
The second provision of the “Social Security Disability Applicants’ Access to Professional Representation Act of 2010″ made permanent a demonstration project that permits certain non-attorney representatives to have fees withheld and directly paid by the Social Security Administration. (This provision places qualified non-attorney legal representatives in the same position as licensed attorneys.) Although this provision was supported by NOSSCR, I have concerns about the impact this provision has on the quality of legal representation.
In order to qualify for fee withholding, individuals must only demonstrate that they have a bachelor’s degree or equivalent education, possess malpractice liability insurance, pass a criminal background check, pass an examination testing their knowledge of relevant provisions of the Social Security Act, and demonstrate ongoing completion of qualified continuing education courses. This is very different from the qualifications required of a licensed attorney.
Licensed attorneys are required to pass the State Bar Examination of at least one State in order to qualify to practice before the Social Security Administration. We are required to uphold the provisions of Social Security Administration, and are governed by professional conduct rules of the State (or States) that license us to practice law. Not only can our right to represent claimants before the Social Security Administration be stripped for unethical behavior, we can also face disciplinary actions from our own State and lose our right to practice law.
Enhanced Duties of Attorneys/Lawyers
As an attorney I am strictly governed in the handling of client money; in confidentiality of information I learn; in competency to perform my job; in management of my non-lawyer assistants; and in the content of my advertising materials. I must hold bachelor’s degree, have an accredited legal education, and pass an intense Bar Examination. This is important because legal rights are at issue when you are pursuing Social Security disability benefits. The representation permitted by this legislation would not normally be permitted by State Law.
I am not suggesting that non-attorney representatives are not capable of providing quality representation; however, I am concerned that they can advertise themselves in a way that does not make clear that they are not an attorney, and they are not required to adhere to the same ethical standards that an attorney must. I have seen non-attorney representatives engage in behavior that is intentionally misleading to clients and that would be a violation of the attorney rules of professional conduct. Although attorneys may also be guilty of this behavior, clients can file disciplinary actions that must be investigated when an attorney commits these acts. The Social Security Provisions fail to provide this same protection to disability applicants.
It is important that when an individual seeks representation, that they are aware of the experience and qualifications of their legal representation. Although a non-attorney representative can call himself or herself a legal representative, you must remember that these individuals are not required to have a formal legal education, and they are not required to follow the same ethical code that an attorney must.
For individuals seeking legal representation for Social Security Disability, remember that the fee permitted for a non-attorney representative is the same as an attorney representative. Realize that licensed attorneys are required by law to uphold a higher ethical standard and the violation of our professional ethics code can result in not only malpractice, but also the loss of the right to practice law. Inquire about an individual’s experience, qualifications, and legal philosophy prior to choosing a legal representative for a disability claim, and choose the individual that you think will best represent your interests.
This article was written by Steven Butler. Steven is a partner atLinarducci & Butler, PA and his practice is limited to Social Security Disability/SSI claims. Steven offers free initial consultations for Social Security Disability/SSI claims. To schedule a consultation with Steven, please use the Linarducci & Butler Contact Form or call 302-613-0707 to schedule an appointment.
No related posts.
Related posts brought to you by Yet Another Related Posts Plugin.