In this video Marc Whitehead, a Board Certified Disability attorney, discusses whether or not you can recover attorney’s fees in an ERISA claim.
ERISA does allow for your legal fees to be paid, but this happens a lot more in theory than in practice. Why? Because of the way that the disability laws are written makes it very hard for any one to get their attorney fees paid for, even if they win their claim.
What does ERISA say about attorney fees? The language in this part of the statute is another way that this law hurts policy holders. Not only is the decision about whether or not your fees are covered left to the judge’s discretion, he or she has the ability to decide on the amount you’ll receive as well.
To put in plain English, if you have $5000 in attorney fees the judge doesn’t have to tell your insurer to pay that. Instead the judge can say that it’s fair for the insurance company to pay for half of that and make you cover the rest.
If you hire your attorney on a contingency fee bases, meaning that the attorney only gets paid a percentage of your award and only if you win your claim, those fees aren’t recoverable except for a reasonable hourly rate for the attorneys work done only while the case is in litigation. You can’t recover for attorneys hours done for any work that your attorney did during your administrative appeal. Once again the is subject to the discretion of the judge in your case.
There is only one thing that can really be done to make this fairer for policy holders, Congress needs to alter the way that the disability laws are written. But they aren’t going to do that unless they’re under pressure and that where you come in. If you really want this ridiculous process to change, everyone needs to call or write their congress person and demand that they fix it. Until then there is not much that lawyers and judges can do other then to follow the ERISA statues and try to win your claim.
