Form 3368 is the official document your lawyer files with Social Security to charge you a fee for representing you in a disability case

Form 3368, titled "Attorney/Representative Fee Agreement," is how a disability lawyer tells Social Security what they plan to charge you and gets permission to collect that fee. Social Security does not allow lawyers to charge whatever they want — the agency sets a cap (currently 25 percent of your past-due benefits, up to $7,200, though this dollar amount can change yearly) and requires the fee arrangement to be in writing and approved before the lawyer can collect anything.

You will encounter this form after you have hired a lawyer and before your case reaches a hearing or a decision. The lawyer fills it out, you sign it, and the lawyer submits it to Social Security. Once Social Security approves it, the lawyer can collect the fee directly from your back pay if you win — Social Security holds back that amount and sends it to the lawyer instead of to you.

This form protects you by making the fee public and capped. It also protects the lawyer by giving them written proof that you agreed to the arrangement. If you are working with a disability lawyer, you will almost certainly sign a Form 3368 at some point in your case.

Key Takeaways

  • Form 3368 is a written agreement between you and your lawyer that tells Social Security what fee the lawyer will charge if you win your case.
  • Social Security must approve the fee before the lawyer can collect it, and the fee is capped at 25 percent of your back pay or $7,200, whichever is less.
  • Your lawyer fills out the form, you sign it, and your lawyer submits it to Social Security — you do not file it yourself.
  • The fee comes out of your back pay (the money owed to you from the date you became disabled), not from your ongoing monthly benefits.
  • If Social Security denies your case, you owe the lawyer nothing under this agreement, though some lawyers may charge hourly fees for work done before the decision.

When the Form 3368 Gets Filed in Your Case

The timing depends on where your case is. If you are still waiting for an initial decision from Social Security, your lawyer may file Form 3368 early — sometimes right after you hire them — so the approval is already in place if you win. If your case is already in appeal or heading to a hearing, the form usually goes in once the lawyer is formally representing you.

You will not file this form yourself. Your lawyer handles the filing with the Social Security office handling your case. You will receive a copy for your records, and Social Security will send you a notice once they approve the fee arrangement. Keep that approval notice — it is proof that the fee was authorized and capped.

If you are switching lawyers partway through your case, a new Form 3368 must be filed. Social Security will not allow two lawyers to collect fees on the same case, so the first lawyer's fee agreement ends when you hire the second one.

What the Fee Cap Means for Your Money

The 25 percent cap applies to your back pay — the total amount Social Security owes you from the date you became disabled until the date they approve your case. This is not your ongoing monthly benefit. If Social Security awards you $30,000 in back pay, your lawyer can take up to 25 percent of that ($7,500), but the current yearly cap is $7,200, so they would collect $7,200 and you would receive $22,800.

The dollar cap ($7,200 in 2024, though this changes) is separate from the 25 percent cap. Whichever is smaller is what your lawyer can charge. In most cases, the 25 percent of your back pay will be less than the dollar cap, so you pay 25 percent. In cases with very large back-pay awards, the dollar cap kicks in and limits what the lawyer can take.

If you lose your case, you owe nothing under the Form 3368 fee agreement. However, some lawyers also charge hourly fees for work done before the decision, and those fees may be owed separately. Always ask your lawyer upfront whether they charge hourly fees in addition to the contingency fee on Form 3368.

How Social Security Approves or Denies the Fee Agreement

Social Security reviews Form 3368 to make sure the fee does not exceed the cap and that you signed it. The review is usually quick — often within a few weeks — but there is no set important date. Social Security will send you and your lawyer a notice of approval or, rarely, a request for more information.

Social Security can deny the fee agreement if the lawyer is asking for more than the cap allows, if the form is incomplete, or if there is a problem with your signature or the lawyer's credentials. If the form is denied, your lawyer will need to revise it and resubmit. This is uncommon but can happen if the lawyer made an error on the form.

Once approved, the fee agreement stays in place for the life of your case, even if you appeal further or the case goes back to a lower level. You do not need to file a new Form 3368 unless you hire a different lawyer.

What Happens to the Fee When You Win

When Social Security approves your case and calculates your back pay, they automatically hold back the lawyer's fee and send it directly to the lawyer. You will see this on your award notice — it will show your total back pay, the lawyer's fee, and the amount you will receive. The lawyer does not have to chase you for the money, and you do not have to write a check.

The fee is taken from your back pay only, not from your ongoing monthly benefit. Once you start receiving your regular monthly Social Security Disability Insurance (SSDI) or Supplemental Security Income (SSI) payment, the lawyer gets nothing from that — it all goes to you.

If your case is appealed after you win at one level, and you win again at the next level, the lawyer's fee is still capped at 25 percent of the total back pay from the entire case, not 25 percent at each level. This protects you from being charged multiple times.

Differences Between Form 3368 and Hourly Fee Arrangements

Form 3368 is a contingency fee agreement — you pay only if you win, and the fee comes from your back pay. Some lawyers instead charge by the hour, meaning you pay them for their time whether you win or lose. These are two different arrangements, and they require different paperwork.

If your lawyer charges hourly, they will not file Form 3368. Instead, you will sign a separate fee agreement that spells out the hourly rate and how often you will be billed. Hourly fees are not capped by Social Security, so the lawyer can charge whatever you negotiate. This means you could owe money even if you lose.

Most disability lawyers work on contingency (Form 3368) because it aligns their interest with yours — they only make money if you win. But some lawyers offer hourly fees for certain types of work or for clients who prefer that arrangement. Always ask which type of fee your lawyer uses before you hire them.

What to Do If You Disagree With the Fee

If you think your lawyer's fee is too high or if you believe they are charging you something not covered by Form 3368, you can object to Social Security. Write a letter to the Social Security office handling your case explaining your concern. Social Security will review the fee agreement and may hold a hearing to decide whether the fee is reasonable.

You can also file a complaint with your state bar association if you believe your lawyer is violating the fee agreement or acting unethically. The bar association can investigate and take action against the lawyer's license if warranted. Contact information for your state bar is available through the American Bar Association website.

If you want to fire your lawyer before your case is decided, you can do so at any time. Once you hire a new lawyer, the old fee agreement ends and a new Form 3368 is filed with the new lawyer. You will not owe the first lawyer anything under the contingency agreement if you have not won yet, though they may bill you for hourly work if that was part of your arrangement.

Frequently Asked Questions

Can my lawyer charge me a fee if my case is denied?

No, not under Form 3368. If Social Security denies your case, you owe nothing under the contingency fee agreement. However, if your lawyer also charges hourly fees for work done before the decision, you may owe those separately. Always ask your lawyer upfront whether they charge hourly fees in addition to the contingency fee.

What if I win my case but the back pay is very small?

Your lawyer can still collect their fee, but it will be smaller too. If your back pay is $5,000, your lawyer can take 25 percent ($1,250). If the back pay is only $1,000, they can take $250. The fee scales with your award, so a small award means a small fee.

Can I negotiate the fee on Form 3368?

You can ask your lawyer to charge less than the cap allows, and many will negotiate. However, Social Security's 25 percent cap is the maximum — your lawyer cannot charge more than that. If you and your lawyer agree to a lower percentage, that lower amount goes on Form 3368.

Do I need to sign Form 3368 before hiring a lawyer?

No. You sign it after you hire the lawyer and before they file it with Social Security. Your initial agreement with the lawyer is usually a simpler contract or letter. Form 3368 is the official fee agreement that Social Security sees and approves.

What if my lawyer files Form 3368 without my permission?

This should not happen — the form requires your signature. If you discover a Form 3368 filed in your name without your consent, contact Social Security when ready and file a complaint with your state bar association. This is a serious violation of the fee agreement rules.