Should I Hire a Social Security Disability Advocate?

The term "disability advocate" usually refers to a non-attorney representative who assists individuals with their Social Security disability claims. There are several major differences between disability advocates and disability attorneys that make it preferable in most cases to hire an attorney over an advocate.

Qualifications for Disability Advocates vs. Lawyers

Social Security has established criteria that disability advocates must meet in order to receive direct payment of their fees from the Social Security Administration (SSA). A disability advocate must:

• possess a college degree or equivalent training and work experience
• complete a criminal background check
• maintain liability insurance
• pass an exam on Social Security rules and regulations, and
• complete continuing education classes.

By contrast, the training required for attorneys who handle disability cases is much more rigorous. To become a disability lawyer, individuals must complete a four-year degree, graduate from law school, pass a state bar exam, be a member in good standing of a state bar association, and complete hours of continuing legal education.

In addition, lawyers, unlike non-attorney advocates, are bound by rules of ethics and professional conduct. Your attorney has an obligation to provide zealous representation, stay abreast of changes in the law, keep you updated on the status of your case, and charge a fee that is reasonable. Any complaints against an attorney can be filed with the state bar association and may subject the attorney to disciplinary action. In contrast, if a non-attorney advocate fails to meet your expectations, you have little to no recourse.

Hiring an attorney also guarantees that your communications will be protected by the attorney-client privilege, which prohibits sensitive information from being shared with third parties. Although non-lawyer advocates generally maintain confidentiality with clients, they aren't bound by an attorney-client privilege.

What a Non-Attorney Advocate Cannot Do

If you've seen any of the ubiquitous advertising by disability advocacy firms and are considering hiring an advocate, it's important for you to understand that a disability advocate cannot do everything a disability attorney can do.

Properly Cross-Examine Expert Witnesses

Disability attorneys are generally more adept at questioning vocational and medical experts than non-attorney advocates. Lawyers have been trained to aggressively cross-examine expert witnesses and exploit weak spots in their testimony. Disability claims are often denied because damaging expert testimony goes unchallenged; don't let it happen in your case.

File an Appeal in Federal District Court

If your case is unsuccessful at the hearing level and denied by the Social Security Appeals Council, a non-attorney advocate won't be able to handle appeal your case to federal district court. That means you'll have to find an attorney willing to jump into your case late in the process, after the evidence has been submitted and the hearing conducted. Many lawyers will be reluctant to appeal a case to federal court if they haven't handled the hearing or Appeals Council stages. This is because if the previous representative has failed to develop critical evidence or to properly cross-examine a witness, the new attorney may face an uphill battle in federal court.

Cite Appropriate SSA Regulations at the Hearing Level and Appeals Council

Attorneys tend to have a better grasp of Social Security rules and regulations than non-attorney advocates. Whether you're at the hearing level or the Appeals Council, it's essential for your representative to understand Social Security's many regulations, the HALLEX (a manual used by employees of Social Security), and any relevant case law.

In addition, it's common for both attorney and non-attorney representatives to submit written briefs to judges prior to a hearing, and on appeal to the Appeals Council. A lawyer who understands the complexities of Social Security disability law is better-equipped to craft a persuasive argument than an advocate without legal training.

Is a Lawyer More Expensive?

Given the vast differences in training, it is perhaps surprising that disability advocates and attorneys virtually always charge the same fees. That's because Social Security regulations state that disability representatives, both lawyers and non-lawyers, may charge no more than 25% of the past-due disability benefits owed to the claimant, with a cap of $6,000.

To be sure, most non-attorney advocates perform diligent work and possess some specialized knowledgeable about Social Security disability. But attorneys, unlike advocates, have received specialized training in performing legal research, spotting legal issues, drafting briefs, presenting oral arguments, and cross-examining witnesses, all of which may be necessary in a Social Security case. When you consider that advocates and attorneys generally charge the same fees, it's almost always a good idea to hire a trained disability lawyer over a non-attorney advocate.

To find an experienced disability attorney near you, check out Nolo's lawyer locator.