University of Illinois Law Review

After successfully adjudicating a claimant's rights to Social Security benefits, an attorney may ask the court to direct payment of his or her fee directly out of the past-due benefits awarded to the claimant. The federal circuit courts have split over the proper method for courts to use in determining the amount of this fee when the claimant and the attorney have entered into a contingency fee arrangement. Some circuits treat the contingency agreement as presumptively reasonable and adjust the fee only in limited situations. Other circuits determine the fee through independent calculation using the lodestar method. This note sets forth criticisms of both methods and argues that a modified contingency method is the best answer. The author seeks to allay the criticism of the contingency method by providing a more concrete and formal inquiry into the contingency agreement.