New VA Rule Would Require Vet Lawyers to Pass Test
The U.S. Department of Veterans Affairs has issued a proposed rule that would require lawyers to take a test before representing veterans. The rule has been attacked by law firms that often provide such services for free. They say a written exam is unnecessary and would deter lawyers from participating.
At particular risk are the nation's homeless vets, a number variously estimated between 200,000 and 500,000 at any one time. "The intent of the VA may have been noble," said Michael Taub of the Philadelphia-based Homeless Advocacy Project, "but it turns out to be misguided."
VA officials say they are reviewing the rule before deciding its final form. "We kind of expected this would be controversial," said assistant general counsel Richard Hipolit.
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In the interest of education, article quoted from extensively.
Continuing:
The tale begins in December, when Congress passed legislation pushed by Sen. Larry E. Craig (R., Idaho), then-chairman of the Veterans' Affairs Committee, to eliminate an 1866 law that prohibited veterans from hiring lawyers to help with initial benefit claims.
Lawyers during that era were often self-trained and many were considered unscrupulous. The law stipulated that veterans couldn't hire a lawyer until the administrative claims process was exhausted. Veterans received assistance in filing claims through service organizations such as the Veterans of Foreign Wars and Disabled American Veterans, or from lawyers taking the cases pro bono.
Craig and others say that having lawyers involved from the start could help reduce a large and stubborn backlog of an estimated 800,000 claims. The new law said veterans may hire lawyers as soon as a notice is filed showing a veteran disagrees with a decision, such as a denial of benefits or a benefit deemed inadequate. But the law also empowered the Department of Veterans Affairs to ensure that lawyers and others had the correct qualifications to represent veterans before accrediting them.
And this is where the controversy started.
The VA interpreted this provision of the law to mean that they could make lawyers sit for a written test to prove that they understood the procedures for handling benefit claims for vets. The testing requirement was spelled out in a proposed rule published by the agency in May. In the ensuing 30 days allowed for comment, the VA was barraged with objections to the draft rule.
Making lawyers get tested before being able to represent military clients will likely dissuade some pro bono attorneys from choosing such clients...it will too much of a hassle some are saying.
"If you go to attorneys with their own practices, families and other distractions and say 'We want you to sit for an exam so you can represent homeless vets,' these attorneys will say they will find some other pro bono causes to take on," Taub said last week in an interview.
Taub's view was echoed by lawyers supervising their firms' pro bono work. "If this thing passes, I might sit for the test - but I might not and just find some other cause to work on," said Craig Martin of Edwards Angell Palmer & Dodge in Wilmington. "My real concern is how I would be able to recruit other people to do it."
Karen L. Forman, pro bono counsel at Saul Ewing in Philadelphia, said her firm had assisted some 60 veterans since 2005, the "vast majority" being homeless. "Lawyers have a choice about what pro bono work they do - and given they have choices, they may choose another area that is not so burdensome," Forman said. "There is a huge area of unmet need. It doesn't seem fair to veterans to put the roadblock in."
In one case cited by Forman, a homeless female veteran who had been rejected three times by the VA for a claim of post-traumatic stress disorder won a lump-sum payment of more than $18,000 and had her monthly disability payment increased after a Saul Ewing lawyer took her case.
A final ruling is expected to be issued in August.
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2011: Jan 