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

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?

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

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Attorney answers 4

Best Answer
Posted

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

Posted

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

Asker

Posted

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

Posted

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.

Posted

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 Virginia and the US Federal Courts in Virginia. There is no implied or actual attorney-client relationship arising from this education exchange. You should speak with an attorney licensed in your state, to whom you have provided all the facts before you take steps that may impact your legal rights. Mr. Rafter is under no obligation to answer subsequent emails or phone calls related to this matter.

Asker

Posted

Thank you for your response. I understand your general answer, but the lack of attention to the small details in this case are actually the problem. I obtained the referenced lawyer mainly for his court presence, but I believe he became consumed with the fact he thought my disability claim was going to be a quick win, he didn't listen to the information I presented. He is my second representative and didn't become involved with my claim until after the first representative withdrew himself after the first ALJ denial. I wrote the request for review by myself and was granted a remand with instructions for the ALJ to correct a number of issues (which in the end where never corrected). I wish I could go into the details because that's where the problem lies, but so many details will just exhaust those online who only have a few minutes here and there to help, so I have to resort to providing little pieces here and there hoping I can gain the attention of one long enough to provide a few more details hoping to get a little more advise. What I really need is a complete claim review by another representative to see if I would benefit from better counsel. A few examples of the issues he caused: 1. The SSA employee incorrectly entered my onset date (by 8 years). By the time of the second ALJ hearing (almost 3 years later), my onset date was still incorrect even though I requested for that onset date to be corrected since day one. The Appeals Council even instructed the ALJ to change it, yet he didn't, yet my representative ignored my concerns each time I brought this issue up. 2. At the second ALJ hearing, the Medical Expert did not testify in person (the ALJ allowed him to testify over the phone). My representative didn't object to this. He didn't object to the qualifications of the ME either (he's a child psychiatrist). My impairment is in the family of arthritis. The ME didn't know my disease outside of reciting Wikipedia. 3. Each denial was based upon the incorrect onset date, and the decision language surrounded this date (that was the ALJ's only ammunition to deny my claim). I mean, the list goes on and on. I'm currently at the AC for the second time, but certainly not by the hands of my representative. I had to basically point out all the errors before the representative became re-interested in my claim - I've done ALL the work! I just want a fair hearing with an attentive representative - that's all I ask. Are there services where I can have another disability lawyer review my claim as in a second opinion?

Posted

IAC is specific to criminal cases.

www.court-martial.com; www.court-martial.us.com; mljucmj@gmail.com 703-298-9562, 800-401-1583. Answering your question does not create an attorney-client relationship.

Asker

Posted

Yes, thank you. It's been established in a previous reply I should have used a different phrase. The title of my post is receiving too much focus here. The question is about the options of a claimant when their representative continues to make crucial mistakes.

Posted

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.

Asker

Posted

Thank you for your response. Part of the problem is the fact my emails are ignored, so just simple questions receive no response, I can only imagine if I ask to speak with him about his. It would only be more of the same.

Don Karotkin

Don Karotkin

Posted

I suggest that you phone his office and ask for an appointment for a face-to-face conference with him. If he or his staff refuse to schedule a conference or simply ignore you after repeated requests, you should probably terminate the relationship and hire a new lawyer. Otherwise, you will just have to live with the status quo, which you are clearly not happy with. Good luck.

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