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Potential Clients And Representation

Posted on in Social Security Disability

I had a relatively brief conversation with a potential client the other day. During the phone conversation I discovered that he is currently being represented by another attorney. I believe this situation merits a very important discussion regarding speaking with an attorney when a claimant has already obtained legal representation.

In this scenario, I told the potential client that I could no longer speak to him about his Social Security disability benefits case. Clearly upset by this, the individual said, "I have spoken to another attorney before you about my case and he said that I could write a letter asking my current attorney to withdraw from my case. Why won't you even talk to me about my condition?"

I would like to spend some time this morning breaking down what happened and some rules governing already represented claimants. The claimant noted that a letter would be sent asking the attorney to withdraw from the case. POMS Section: GN 03910.040 part C states, "A claimant may revoke the appointment of a representative at any time. A revocation of appointment must be in writing and must be signed by the claimant." For more information on this rule, visit the SSA website. In other words, a claimant absolutely has the right to choose his or her representation. A claimant can fire an attorney at will or even shop around for one that will best fit his or her needs. However, the rules are much more complicated governing attorneys.

Every licensed attorney is admitted to practice law in a particular state or states. That state governs the ethical conduct and actions of the attorney. Here in Illinois, where I am licensed, Illinois Rules of Professional Conduct Rule 4.2 governs communications with represented individuals and in pertinent part states, "A lawyer must immediately terminate communication with a person if, after commencing communication, the lawyer learns that the person is one with whom communication is not permitted by this Rule." The rule also notes that it applies even if the represented person "initiates or consents to the communication." In other words, as an Illinois licensed attorney I am bound by the code of ethics not to speak to a represented claimant about his or her case and to in fact "terminate" the conversation once it is discovered.

Is there anything besides legal ethics that would prevent an attorney from speaking to a represented claimant? Another possible reason is the idea of "stealing" another attorney's client. Being labeled in the legal community as a dirty player is nothing any attorney wishes. Additionally, the actual taking of a client away from another known attorney in some circumstances can be grounds for a civil law suit.

Before a claimant thinks about firing a representative and hiring another there are a few considerations one should think about:

1) A disability benefits case can take a very long time, there may be months where no major changes occur in your file. This can have nothing to do with your disability lawyer, but is part of dealing with the government and their lengthy process.

2) Call and try to speak with your disability attorney about your issues and concerns and see what explanation he or she gives and if it makes sense to you. Sometimes just making a phone call can make the difference.

3) Claimants at the application and reconsideration level the majority of the time are denied. This does not always mean that you have a bad case or a bad attorney. The Social Security Administration denies most claims at these levels.

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