Retaining an Attorney
Hiring an attorney is one of the hardest decisions for a veteran in
pursuing VA benefits. Hiring the right attorney is even harder.
Reason to Consider Hiring An Attorney
First things first. The only reason for a veteran to hire an attorney
is because the veteran believes that an attorney can help achieve a more
favorable result than the veteran alone would otherwise obtain.
That’s it. There is no other good reason.
The trick is, of course, to know when an attorney can get a better
result than the veteran alone or with a non-attorney representative.
Recognizing a situation where an attorney can be helpful is the first
key to successfully hiring an attorney.
When An Attorney Can Help
Attorneys are trained to advocate for their clients. That means an
attorney can help a client when the work to be done requires someone to
understand the facts of the claim, the law that applies to the claim,
and there is an opportunity to explain to a someone why the facts and
the law favor their client. In short, an attorney is can be more
helpful in some situations than in others.
What An Attorney Can Do
Explain the status of your claim, why it has been denied, and what will likely be needed to obtain an award.
Organize the facts of your claim to present the most favorable possible basis for an award of the benefit sought.
Research the rules and regulations that are relevant to your claim.
Combine the facts and law into the most compelling argument for an award of the benefit sought.
Identify the available procedural options (appeal, DRO, remand, etc.).
Receive and respond to VA letters and requests.
Prepare responses to VA and the Board of Veterans’ Appeals requests for evidence.
Prepare written arguments and briefs.
Make oral arguments at VARO hearings, before the Board, and the Court of Appeals for Veterans Claims.
What An Attorney Cannot Do
Change or create facts
Find or create missing records
Change the law, rule, or regulation
Promise to "speed things up" at the VA (may be able to get a "stalled" claim moving)
Create a favorable medical diagnosis
“Sue the Secretary”
“Sue” any other VA employee
Guarantee an award
Attorney Representation in the VA System
As with most other aspects of the VA benefits system, there are rules
for hiring and compensating attorneys. A basic understanding of these
rules is important for a veteran looking to have an attorney represent
them in seeking an award.
It often comes as a shock to veterans (and non-veterans as well) to
learn that a veteran cannot just go out and hire a lawyer to help him or
her file a VA benefits claim. Quite the contrary, veterans are
explicitly prohibited from paying anyone to assist them in filing or
pushing a claim through VA until VA denies the claim! Amazingly, up
until very recently, it was a federal criminal offense for an attorney
to accept compensation of any type for helping a veteran file a VA
claim.
Even more amazingly, Congress still limits a veteran’s right to hire an
attorney, supposedly to protect the veteran from evil attorneys who are
only out to steal benefits from poor, addled veterans. No, its true!
Congress continues to believe that attorneys are more of a threat to a
veteran’s benefits than the VA. (Just for fun, think of the outrage on
cable news shows that would occur if Congress limited the ability of a
gender, ethnic or racial class to hire an attorney the same way as they
do with veterans).
The key VA rules regarding a veteran hiring an attorney are summarized as follows:
An attorney cannot charge a fee for representing a veteran in a benefits
case until the veteran files a Notice of Disagreement (NOD) with the
decision denying the claim.
For an attorney to represent a veteran before the VA, the attorney was be “accredited” by VA.
A fee agreement between an attorney and a veteran must be in writing and submitted to VA.
Again, VA insists that these restrictions are to protect veterans from
unqualified attorneys. Perhaps so, but such restrictions also limit the
number of attorneys available to veterans.
Attorney Fees
Good intentions and public service aside, veterans seeking to hire an
attorney have to recognize one fundamental fact: attorneys are in
business. To survive, a business must bring in more money than it
spends. And, just like plumbers and doctors, attorneys must charge for
services to survive. It is amazing how many veterans seeking to hire an
attorney do not understand this basic fact. Recognizing the realities
of the legal business will make hiring and working with an attorney much
easier.
Not surprisingly, VA also has rules about how and how much an attorney
can charge a veteran for work before the VA (meaning the Regional Office
and the Board of Veterans’ Appeals). For work before the VA, attorneys
can charge:
A fixed fee;
An hourly rate;
A percentage of benefits recovered (a “contingency” fee);
A combination of the above;
as long as the total fee is “reasonable.”
A fixed fee, as the name suggests, is where the attorney agrees to do a
specified task for a specific fee. The advantage to a fixed fee is that
the veteran knows up front exactly how much he or she will pay the
attorney. Fixed fee can run from a few hundred dollars to several
thousands of dollars depending on the task. Similarly, an hourly fee is
an agreement for the attorney to charge for each hour spent on the
agreed task. An hourly rate can vary from around one hundred dollars
per hour to several hundred dollars per hour. Hourly fees are not
common in veterans work because the fees can add up quickly and veterans
rarely have funds to pay an hourly rate if they do not get a large
award.
The most common type of fee is the percentage or contingency fee, which
is the most favorable fee structure for most veterans in most veterans
benefits cases. This is because the attorney is only paid if (1) an
award is made and (2) there is an amount owed to the veteran at the time
of the award. The attorney is then paid a percentage (usually between
20% and 33%) of the amount owed to the veteran when an award is
approved. This amount, also known as a “retroactive” award, is the
amount of due to the veteran from the effective date of the award up to
the date of the award. If the award was made following an appeal to the
Board and the effective date is the date the claim was originally filed
(as it is in most cases), the retroactive amount could be 3 or 4 years
of benefits. If the case goes up to the Veterans Court and back, the
retroactive period could be ten years or more.
As an example, assume a veteran filed a claim on January 1, 2004, and
enters into a 20% contingency fee agreement with an attorney. On
January 1, 2008, the veteran is awarded a 100% disability rating. The
retroactive amount is the 100% monthly payment for the period between
January 1, 2004, and January 1, 2008 (four years), which is
approximately $120,000 at current rates. The attorney’s fee would be
20% of the $120,000 or $24,000.
Attorney Fees Before the Veterans Court
Fees for attorney work in the Veterans Court are not subject to the
restrictive VA regulations. The Court still requires that fees be
“reasonable” for the services rendered and the results obtained. The
most common fee by far is still the contingency fee.
At the Court, however, a federal law known as the Equal Access to
Justice Act or “EAJA” offers veterans who win at the Court the
opportunity to have the government pay all or part of their attorney
fees. Many attorneys will take an engagement for a case at the Court
and agree to accept the EAJA fee, if any, as payment. A veteran looking
to hire a lawyer for an appeal at the Veterans Court should discuss the
possibility of using EAJA to pay the attorney.
Costs
In addition to attorney fees, a fee agreement may also specify that the
veteran may be responsible for “costs,” which are the out-of-pocket
expenses (postage, copying, experts, etc.) paid by the attorney on
behalf of the veteran. A veteran should make sure he or she understands
who is responsible for costs before signing a fee agreement.
Reality Check
Veterans are sometimes surprised by the amount of fees that result from a
contingency or hourly fee agreement and question whether the attorney
“earned” that much money. “After all, I am the one who is
hurt/sick/unable to work” is the usual logic for raising this question.
Several issues make such second-guessing unfair.
The first issue is whether the veteran received what he bargained for in
exchange for the fee. If so, the next issue is whether the attorney
received the fee that the veteran agree to pay. If this is also true,
there is not a legitimate reason to challenge the fee. Another way to
think of such situations is to consider whether the veteran would be
better off with 100% of nothing (no award) or 80% of an award. In any
event, the time for questioning a fee agreement is before it is entered
into, not after the award is obtained.
That is not to say that a fee agreement cannot be challenged because it
was unreasonable, unfair, or improperly used to the attorney’s
advantage. Many attorneys will adjust their fee if the situation
resolved itself without the expected effort. Many times a disagreement
can be resolved by discussing the issue with the attorney. For cases
where the veteran still feels a fee was unfair, VA has a process for
veterans to file complaints and challenge fee agreements. In fact, for
fees administered by VA, the agency holds the attorney’s fee for several
months or until the veteran tells VA he or she has no objection to
payment of a fee by VA.
Finding An Attorney
Only after you understand (1) what you want done, (2) what an attorney
can do for you, and (3) what it should cost you, is it time to find some
attorneys to interview.
There are a only a small number full-time veterans’ attorneys. There
are other attorneys who handle veterans’ cases on a part-time or
occasional basis. In addition, other attorneys volunteer their services
through organizations that match veterans with attorneys willing to
work on a pro bono (without charging a fee) basis. For all that, there
are pitiful few competent and experienced veterans attorneys out there.
The low number of attorneys is somewhat balanced by the national nature
of the practice. In other words, it is not necessary for an attorney to
be located near a claimant to properly represent them before the VA.
Most veteran attorneys rarely meet clients personally because the
clients are located all over the country. Distance is not a problem, as
a good attorney will routinely communicate with clients by mail,
telephone and email, as events develop.
Regardless of where a veteran lives, the best source to find an attorney
is a recommendation from a friend or other veteran that has previously
engaged that attorney in a VA matter. Nothing is better than a personal
recommendation from someone you know and trust. But keep in mind that
even the best and most knowledgeable attorney does not always win and
even the worst prepared and disagreeable attorney will get an award
sometimes.
If a personal recommendation is not available, the next best things are
recommendations from other veterans on websites and blogs such as this
Knol, VAWatchdog.com, and The Veterans Voice. Another good source is a
recommendation from well-respected advocates (such as our own Jim
Strickland). If you are comfortable on the web, a search on Google or
similar search engine for “veteran’s attorney” will bring you all sorts
of entries and advertisements for attorneys practicing in this area.
Your state or local bar association may also have a referral service
where attorneys seeking veteran clients list themselves.
Another potential source of information about veterans’ attorneys is
contact by an attorney looking for clients. Some attorneys advertise
through direct mail. Veterans with new appeals in the Veterans Court
often receive many offers of representation. Whether you agree or
disagree with such tactics, a veteran can find an attorney by responding
to these contacts. However, as with responding to any other
advertisement of services, you should carefully investigate and
interview an attorney identified in this way.
Most active veterans attorneys have their own websites and many
advertise on other veterans-related websites. The local “yellow pages”
may contain advertisements from veterans attorneys. Several
organizations, such as the Court of Appeals for Veterans Claims
(http://www.vetapp.gov/practitioners) and the National Organization of
Veterans Advocates (NOVA) (http://www.vetadvocates.com) also maintain
lists of attorneys available for veterans’ cases. In addition, the VA
lists attorneys and non-attorney representatives that have completed the
VA accreditation process in a database searchable by city, state and
zip code (http://www.va.gov/ogc/apps/accreditation/index.html). For
veterans meeting specific requirements, the Veterans Consortium Pro Bono
Program (http://www.vetsprobono.org) may be able to find an attorney
for veterans with a case on appeal to the Veterans Court. Finally,
local or national offices of the major veterans’ service organizations
(such as the VFW, DAV, VVA) may be able to make suggestions.
Selecting Your Attorney
After you have put together a list of at least two or three attorneys
and their contact information, it is time for you to interview the
attorneys. Many veterans make a big mistake at this point – they speak
to one attorney and hire him or her without considering any others.
They do so without making sure that the attorney they select is right
for them and their case. The result can sometimes be worse than if no
attorney was hired and always results in more stress than necessary. So
prepare yourself to find the best attorney for you and your case.
To do this, you must prepare yourself to have a productive information exchange with the attorney. This means, as a minimum:
Organize the key documents in your case, beginning with the last
correspondence from the VA and including any rating decisions, Statement
of the Case, Board or Court decisions and any important records or
evidence
Prepare a short (one page at most) summary of what your claim is, and the evidence that supports the claim
Know where your claim is in the VA system (VARO denial, NOD filed, at the Board, at the Court, etc.)
Once you are prepared, review the lists of what an attorney can and
cannot do. If you find yourself getting ready to ask for something an
attorney cannot do, stop. If during your discussion, the attorney
promises to do something that he cannot do, move on to someone else.
One other issue worth discussing is the charging of a "consultation fee"
or otherwise requiring a veteran to pay something up front for an
attorney to review a case. No reputable attorney of which the authors
are aware charge such a fee. If an attorney requires a fee to review
your case, our suggestion is to move on - the attorney may not be doing
anything wrong, but there are plenty of attorneys that will review a
case without charge.
Only when you are prepared should you contact the attorneys on your
list. If you decide to telephone the attorney, be prepared to discuss
your case, not just leave a message – many attorneys will take a call
from a potential new client even when they are busy. It is wasteful of
everybody’s time to have an attorney’s attention and not be able to
discuss your case.
If you are comfortable with email, many attorneys prefer to communicate
in this way because they can check their email while away from the
office and on breaks during the day. Also, an email acts as a record of
the contact and the information exchanged – this avoids
misunderstandings and errors in note taking during phone calls. An
initial email containing or attaching the short description of your case
and the key information you prepared above goes a long way towards
getting a busy attorney to respond. Also, when the attorney does
respond, he or she has your email to work from during the follow-up
conversation.
Things to do when interviewing an attorney:
Do tell the attorney why you are calling (for example: “I am looking
for an attorney to represent me in my appeal of a Board decision denying
my PTSD claim.”)
Do explain the basic facts supporting your claim
Do ask the attorney to describe his or her VA claims experience
Do ask the attorney whether he or she has handled similar claims
Do ask the attorney if he or she is accredited by VA
Do ask the attorney what type of fee arrangements are possible
Do take ‘no’ for an answer – if the attorney declines to take your case,
you should spend your time trying to find an attorney that will, not
trying to convince the first attorney of the merits of your case
Don’t expect the attorney to agree to take your case after one call or
email – a good attorney often needs to review the facts and law further
after discussing the matter with you.
Don’t ask the attorney to “give you odds” on getting as award – no case
is a sure thing and any claim can be denied despite the best efforts of
an attorney
Don’t try to describe your entire military history in the first call or email – focus on the event relevant to your claim.
Don’t argue with the attorney about what the law is or why the law is
“wrong” – if you disagree with the attorney’s view of the law, it is
better to find another attorney. If you really believe that you know
the law better than the attorneys you interview – perhaps you don’t.
Don’t take one attorney’s decision to pass on your case as the end of
the matter – but if multiple attorneys decline representation, it may be
time to take a hard look at your claim
If an attorney tells you he is not interested in your case, politely ask
for a reason. Most attorneys will at least tell you whether it is
because they do not see a reasonable chance of success or whether they
are too busy or not familiar with that type of claim. Whatever the
reason, do not take one attorney’s opinion as the final word. Every
attorney has a different view of a case and often another attorney will
take a case that has been rejected elsewhere. Some attorneys pride
themselves with taking the “hard” cases that no one else wants.
Engaging An Attorney
Once you have identified the attorney you want to hire you have to reach
agreement with the attorney on the terms and conditions of the
engagement. A veteran should not be shy in requesting, reviewing, and
asking questions about:
The scope of the representation (what the attorney will do)
How the attorney fee and cost will be calculated (how and how much the attorney will be paid)
What the attorney expects you to do (provide documents, not contact VA, etc.)
What the attorney will do for you (communicate with VA, prepare all documents, attend hearings, etc.)
What happens if you fire the attorney
What happens if the attorney fires you
Whatever else, do not enter into an engagement or sign a fee agreement
until you understand everything in the agreement. A good attorney will
not have a problem answering your questions.
The Attorney-Client Relationship
Once your fee agreement is effective, you are in an “attorney-client”
relationship. Among other things, this means you and your attorney must
live up to the terms and conditions in the fee agreement. In
particular, a client must be open and forthright regarding the facts and
evidence relevant to the claim(s). Withholding information or failing
to be completely truthful is the most common failing of veterans in
dealing with their attorneys. For attorneys, the most common complaint
is the failure to communicate with clients and keep them up to date with
developments.
The attorney-client relationship can and should be professional and
rewarding to both parties. In the VA system, such relationships can
last for years or decades. The attorney and client should work to keep
it a positive relationship.
Respect the Relationship
It is very safe to assume that every veterans attorney is busy and that
his or her time is very precious to them and their clients. The surest
way to get fired by an attorney is to waste his or her time.
It often comes as a surprise to clients, but an attorney can fire a
client for failing to do the things promised in the fee agreement or
becoming an intolerable distraction from other client’s work. An
attorney has a duty to work diligently for a client and to communicate
on developments affecting the client’s claim. A veteran client should
recognize that there are times in the VA process where there is
absolutely nothing to report – and that repeatedly contacting the
attorney will not change the situation.
How to be an engaged and helpful client:
Be absolutely truthful about all aspects of the claim
Return phone calls and respond to letters from the attorney promptly
Tell the attorney whenever you receive a letter or call from any VA office
Keep the attorney informed of changes in your address and contact information
Tell the attorney about and keep all VA appointments
Send the attorney copies of all medical reports and other documents that you receive
Do not contact or discuss your claim with any VA individual
Do not write your Congressman or Senator or contact the media about your claim
How to become a former client
Call or email the attorney repeatedly seeking the status of your claim after the attorney asks you not to
Demand that the attorney submit every letter and legal submittal to you for review and approval
Order the attorney to file every possible paper to “bury” the VA
Tell your attorney an untruth or “forget” to tell him or her a fact relevant to your claim
Demand that the attorney tell VA something that is untrue
Go around the attorney and call, email, or mail the VA about your claim
Miss VA appointments without reasonable excuse
Continue to write the local newspaper, Members of Congress, or the President without discussing with the attorney
Insist that the attorney take a specific legal approach despite the attorney’s best legal advice not to