Attorney percentage in personal injury case?
We have a proposed settlement in a personal injury case. If we accept there will be a large payment sent to Medicare who paid most of the medical bills. Will our attorney take his percentage before or after Medicare has been satisfied. Thank you.
9 attorney answers
Review your retainer contract then have a conversation with your attorney.
This is a question you should be asking your attorney, rather than complete strangers on the internet. But the answer is the fee is based on the amount recovered, not the client's net share after paying off the client's debts.
Advice given on Avvo is general in nature, and does not constitute an attorney/client relations. Mark R. Bower is a malpractice attorney with 50+ years' experience, a former Court TV Commentator, and is the past Co-Chair of the Medical Negligence Info. Exchange Group of the American Association for Justice, and Board-Certified in Medical Professional Liability by the Amer. Bd. of Prof. Liability Attorneys.
I agree with Mr. Bower. Review the exact terms of the retainer agreement but, as a general rule, the attorney fee is a percentage of the total recovery not just the remainder after payment of medical liens.
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Typically the attorney takes his/her fee from the gross amount, You also better make sure that the Medicare lien is address from the settlement. Your money pays them back. Since you have an attorney, you should be asking him/her the question. That's why you hired them.
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Generally, in New York State, all liens, including Medicare, get paid from the client’s share of the settlement.
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You are required to have a written contingency fee contract. What does it say? Most contingency fees are based on the gross recovery. Your attorney should negotiate down any Medicare lien, which can, sometimes, be a lengthy process.
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Medicare will allow the attorney to take his fees from the Medicare payment up to the percentage of the recovery that goes to Medicare. For example: If the attorney has a 1/3 fee agreement and Medicare is entitled to get 30,000. Then the attorney gets 10,000. and Medicare gets 20,000. The Medicare forms provide for this.
The answer should be in the written agreement fee agreement. You should review the agreement, and then discuss the matter with your attorney. It is fairly typical for the contingent fee to be based on the "gross" amount of the settlement. (That is, the amount before payment of liens and costs.)
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The fee is customarily taken from the gross recovery and the lien is negotiated off of the net, but check your retainer. There are agencies that will negotiate the lien from the client’s share and they will take a percentage of what they save for the client. For instance, if the lien is $10,000 and they save the client $2000, they might take a fee of $600, leaving the client with a net positive of $1,400 with the payment to Medicare being $8000 instead of $10,000 and $1400 coming back to the client. The lawyer will have taken the fee already, so the full $1400 goes to the client. I know of no retainer where the fee is taken after the lien is paid. That would mean the attorney is sharing in your obligation to pay back the lien.
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