By Scott B. Elkind, Esq.
There is lots of advertising by "Social Security Representatives" who offer representation in disability claims. They will claim all kinds of success and guarantees about their results. Whereas, lawyers and law firms offer their services and do not make such wild claims. There are good reasons for this.
A "representative" usually is not a lawyer. In fact, there are no requirements to become a representative. You do not even need a college degree, let alone a law degree or passing a State Bar examination in order to practice. You merely need to register with the Social Security Administration and start practicing law without a license. If it were not for the federal statute permitting this type of representation, it would be a criminal offense for the unauthorized practice of law.
The actual authority for a "Representative" from the Social Security Administration in its Programs Operations Manual Systems (POMS) GN 03910.020 which only defines a "representative" as "generally known to have a good character and reputation" and "capable of giving valuable help to the claimant in connection to the claim." There are no subdefinitions for these requirements, nor do representative have to offer proof or even swear to uphold any standard of practice. The merely need to register and practice. Getting a driver’s license involves much more than becoming a "representative" for Social Security practice.
A "representative" is not required to have any specific training. The old adage that "college teaches you how to learn" is accurate. But, law school teaches you how to learn law and how to represent a client. So much so, that if your representative loses your case, that person cannot file a lawsuit in federal court in order to reverse a bad decision by an administrative law judge. Why? Because they are not licensed lawyers and have not been taught the law and procedures by accredited institutions involved with filing and prosecuting a lawsuit. By the same reasoning, many representatives lack similar requisite skills in understanding the Social Security law and can offer only limited assistance. To trust a insufficiently trained person to undertake complex hearing issues is a recipe for disaster.
Our practice has involved representation of many cases in federal courts which were lost by representatives. It is very clear that many representatives are unaware of many important legal issues which can make or break your disability case.
So, why do these "representatives" make such incredible claims of success?? The representatives are not held to any ethical standards as lawyers are. Therefore, these representative can claim anything without any recourse for their untruthful claims. Whereas, lawyer advertising is carefully controlled and only limited representative are permitted under each state’s ethical guidelines. Violation of state ethical guidelines can result in a suspension from practice.
Moreover, "representatives" are not required to carry malpractice insurance. So, if the representative loses your case due to an act of negligence, you may not be able to recover for their wrongdoing.
Worse yet, most of the big advertisers (both lawyers and non-lawyers) will appoint a "representative" to your case without telling you that you are not being represented by a lawyer. Therefore, it is incumbent upon you to ask whether you are getting lawyer representation. Even then, you may get the response that they are "supervised" by an attorney. Unless you are working directly with the attorney and that lawyer is the one responsible for handling your claim in court, your chances of winning can be significantly diminished.
So, when it comes down to it, is it worth risk of hiring a Social Security "representative" where you can hire an experienced lawyer for the same cost?? This decision is a no-brainer.
Scott B. Elkind is a Principal with Elkind & Shea, The Disability Benefits Law Firm, located in Silver Spring, Maryland.