| The Court considers five factors in determining | | | | case, the less expertise the case would require. |
| whether to award disability attorney fees. | | | | 4. The inability of the attorney to accept other cases in |
| 1) Did the ERISA governed disability insurance plan act | | | | order to handle the claim. A more complex case might |
| in bad faith? Was it guilty of forcing the claimant into | | | | not allow a disability attorney to work on other claims |
| Court? | | | | at the same time, or at least greatly reduce the |
| 2) Does the Plan or administrator of the disability plan | | | | number of concurrent clients the disability attorney can |
| have the ability to pay the fees if the Court awards | | | | work with. |
| them? | | | | 5. The customary fee of other attorneys practicing in |
| 3) Would awarding the disability attorney fees act as a | | | | the same specialty. This is where the affidavits of |
| deterrent in the future? | | | | other disability attorneys come in. |
| 4) Did the legal decision have the potential to benefit | | | | 6. Whether the attorney charges a fixed fee or |
| other plan members? | | | | contingent fees. How an attorney charges fees can |
| 5) How did the relative merits of each side compare? | | | | be a relevant factor. |
| While the Court has the right to order the disability | | | | 7. Time limitations imposed by the client or the |
| insurance plan to pay the disability attorney's fees if | | | | circumstances. This factor is comparable to #4, but |
| even one of the above conditions are met, in most | | | | not quite identical. |
| cases, the Court only considers the awarding of fees | | | | 8. The amount of money involved in settling the claim |
| if more than one of the five factors applies. | | | | and the results obtained. The more money involved, |
| First and foremost, the Court looks at whether the | | | | the more likely the disability insurance company or plan |
| disability attorney succeeded in winning a substantial | | | | is culpable. |
| part of the litigation. Then the Court moves on to | | | | 9. The experience, reputation, and ability of the disability |
| considering whether the disability insurance plan had a | | | | attorney(s). |
| justifiable position that was taken in good faith. If it did | | | | 10. The 'undesirability' of the disability benefits case. |
| so, the Court may determine that awarding of | | | | Some cases are more risky for a disability attorney to |
| attorney's fees is not appropriate. | | | | take. |
| Once the Court has determined that compensation to | | | | 11. The nature and length of the professional |
| the disability lawyer is appropriate, ERISA establishes a | | | | relationship with the client. Some cases take many |
| clear set of guidelines. Disability lawyers are only | | | | years to bring to a just result. |
| allowed to invoice hours spent productively pursuing | | | | 12. Awards paid by other courts in similar cases. The |
| successful litigation efforts. Neither hours assisting a | | | | Court does compare decisions reached by other |
| disability claimant during the administrative appeals | | | | Courts across the United States. |
| process nor hours spent pursuing information that later | | | | At the end of the day, a disability insurance attorney |
| proves useless are billable. | | | | can blow it by failing to keep careful records. It does |
| The invoice for the disability attorney's fees must be | | | | absolutely no good to have the Court determine that |
| itemized carefully. Sufficient details should be present | | | | the victor in a disability lawsuit has the right to |
| so that the Court can determine whether the work | | | | compensation for attorney's fees, if the attorney fails |
| performed is clearly connected to the litigation. This is | | | | to do his/her part. A recent case, Pakovich v. Verizon |
| not mere politeness. ERISA demands this so the Court | | | | Plan, demonstrates this. The Judge agreed that it was |
| can recognize when excessive, redundant or | | | | appropriate to review the disability attorney's rights to |
| otherwise unnecessary charges have been included. | | | | compensation, even though a prior court ruling had |
| In addition to this information, ERISA requires the | | | | denied the right. |
| disability attorney to use a reasonable hourly rate. The | | | | Unfortunately, the invoicing presented by the attorney |
| disability attorney must provide affidavits from other | | | | stripped the Judge of any power to establish |
| disability attorneys practicing in the same area stating | | | | appropriate compensation. The required detailed |
| what those attorneys charge to represent long-term | | | | invoicing was absent. The necessary affidavits |
| or short-term disability claimants. This gives the Court | | | | confirming the appropriate disability attorney rates |
| fees to compare. When the disability insurance plan | | | | within the Massachusetts district were not produced. |
| disagrees with the rate asked by the disability attorney, | | | | The Court had no option but to deny the motion for |
| the Court is able to use these figures to evaluate the | | | | attorney fees. |
| appropriateness of the fees. The Court will also | | | | Providing superior disability attorney services to clients |
| consider the expertise of the disability attorney in | | | | goes beyond securing a reversal of a disability plan's |
| determining a fair rate. | | | | denial of disability benefits. It also includes doing |
| The Court uses 12 factors to adjust the final | | | | everything possible to reduce the costs to the client. |
| settlement. Each factor may work alone or combine | | | | When a disability attorney keeps sloppy records and |
| forces with the others. | | | | fails to comply with the basic requirements of ERISA |
| 1. The time and labor involved in comparison to the | | | | that lawyer has failed to practice law in the most |
| complexity of the case. The more protracted a case, | | | | ethical way possible. The best disability attorneys strive |
| the more hours the Court will expect on the invoice. | | | | to establish all the evidence necessary to secure fair |
| 2. The novelty and difficulty of the questions brought | | | | compensation for the attorney fees connected with |
| before the Court. Some cases present a greater | | | | representing his/her client. This shows moral |
| challenge, which the Court recognizes it would take | | | | responsibility. |
| more time to research. | | | | Do more than help your clients to obtain their rightful |
| 3. The skill the attorney had to possess in order to | | | | disability benefits. Help them keep as much of the |
| provide acceptable legal services. The simpler the | | | | settlement as possible. |