Ineffective Assistance of Counsel - At What Point Should the Claimant Not Suffer From Bad Representation?

Asked about 1 year ago - Amarillo, TX

Imagine an intelligent claimant who has spent many hours researching his claim; he knows his medical records inside and out, but has the unfortunate luck to obtain representation who in the end fails the claimant in many ways? After being told to "not speak" at the hearing, the representative fails to object to the most critical of issues which end up causing yet another denial. At what point can a claimant recover from such poor representation? Throughout all the research of reading case law, I find a plethora of cases where the upper courts have consistently remanded claims for the same (and even to a lesser degree) of issues which a representative fails to object. When a claimant presents critical details of argument and the representative ignores this "help", what is a claimant to do?

Additional information

This is concerning representation of a SSDI and SSI claim (disability).

Attorney answers (4)

  1. Joshua Sachs

    Contributor Level 19


    Lawyer agrees

    Best Answer
    chosen by asker

    Answered . There may or may not be reason to explore the possibility of a of civil malpractice action in this situation, and I express no opinion on that one way or another. "Ineffective assistance of counsel," on the other hand, is a constitutional concept applicable only to criminal cases, which yours is not. So that is not involved here.

    Rixon Charles Rafter III
    Rixon Charles Rafter III, Litigation Lawyer - Fairfax, VA
    Posted about 1 year ago.

    Joshua, I always appreciate and learn from your reasoning, your aporoach, and your style.

    No photo
    Posted about 1 year ago.

    I appreciate the response. I think the title of my post created a misunderstanding. I am not attempting or contemplating pursuing any legal matters against my representative (no matter how terrible he is). I am more concerned for my current claim than to waste time "punishing" someone in a system where I already know would be futile. There is really no protection for the claimant's word anymore.

    My ultimate question is: without going into the minutia of details of my horrid experience with my claim, is there a service where I can present my claim to a disability lawyer as to simply receive a "second opinion"? I truly believe my claim has been handled poorly to the point of some very suspect and concerning matters which I have read elsewhere are considered unethical if not outright unlawful. I need the help of another disability lawyer to help me decide if I have valid concerns, and if so, are they troubling to the point of contacting the state bar. I feel it's like screaming fire in a crowded room, but no one takes the warning seriously because it might seem too unlikely there really is a fire. I need someone to listen to me so I can prove my concerns and to stop building that wall of doubt before I've even explained my situation. I'm not just the average, know-nothing claimant who is simply complaining.

    So, where can I get a second opinion about my claim?

    Joshua Sachs
    Joshua Sachs, Appeals Lawyer - Evanston, IL
    Posted about 1 year ago.

    I am afraid that your questions are far outside the rather narrow area of my own practice and experience. Your proposal to consult another disability attorney for a second opinion sounds like the right place to begin.

  2. Don Karotkin

    Contributor Level 16

    Answered . If a lawyer-client relationship is to have any chance of success, there must be mutual trust and confidence. Since that appears to be lacking here, you should sit down with your lawyer, discuss your concerns, ask questions and get answers. If you are not satisfied after that, you should terminate your lawyer and hire a new one.

    By the way, a good, competent lawyer does not need (or want) "help" from a client on what arguments or objections to make. These are matters that require a legal education, legal training and legal experience to deal with.

    Good luck.

  3. Philip Douglas Cave


    Contributor Level 17


    Lawyer agrees

    Answered . IAC is specific to criminal cases.;; 703-298-9562, 800-401-1583. Answering your... more
  4. Rixon Charles Rafter III

    Contributor Level 20

    Answered . What claimant might consider is that claimant knows all the details about the claimants' case--unfortunately claimants who know all the details tend to think they also know what matters to the legal process—what they do not realize is that all the details do not matter. You hired your attorney to guide you through the legal process.

    Some details are irrelevant, others are tertiary or collateral matters that, although interesting, are not (even when their total sum is weighed across the case) probative.

    Claimant always has the right to challenge an attorney and fire that attorney if the claimant believes the attorney is underperforming and cannot step up. Claimant can also sue the attorney for malpractice (VERY, VERY tough to prove).

    NOT LEGAL ADVICE. FOR EDUCATION AND INFORMATION ONLY. Mr. Rafter is licensed to practice in the Commonwealth of... more

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