Printer Friendly Page
VETERANS' ATTORNEYS FACING "THE TEST" -- Under
a
VA proposal, lawyers would have to pass an exam
to
serve veterans. Will that discourage taking on
cases?
The VA is gearing up for "The Test." It
will determine, if the VA stays on plan, who can practice veterans' law.
For more information on attorneys for veterans
use the VA Watchdog search engine...click here...
http://www.yourvabenefits.org/sessearch.
php?q=attorneys+for+veterans&op=ph
For comment on the two following stories, I
turned to an attorney who currently practices veterans' law. His
thoughts:
"I essentially agree with everything in the
[first] column. The column addresses attorneys who do general pro bono
work and that term as used in the column is for work in various areas of
indigent law. If these attorneys either have experience in veterans law
or are under the supervision of an attorney with experience, I have no
problem with that.....
As the column notes, VA has published
proposed rules which require the passing of a test in order to represent
veterans. While I believe this to be beneficial for attorneys who have
never practiced veterans law, I believe this requirement should be
waived for those with adequate experience.....
I would hope when a veteran chooses an
attorney to represent them they make the decision based upon an
attorney's prior experience in this field, but some veterans, like
people in general, will not do their homework.....
The only observation I have to this [second]
column is VA is the only federal or state agency of which I am aware
which requires (or will require) attorneys to pass a specialized test in
order to represent clients before that agency. I'm sure some would say
this is discrimination and others would say all agencies should require
the passing of a test. As I've previously informed you all state bar
ethics rules state an attorney should not take on a matter in a field in
which he or she is not competent...Again, it comes down to the veteran
looking into an attorney's qualifications (experience) prior to signing
a contract."
First story
here...
http://www.philly.com/i
nquirer/front_page/20070716_Vetera
ns_attorneys_facing_test.html
Story below:
-------------------------
Veterans' attorneys facing test
Under a proposal, lawyers would have to pass an
exam to serve veterans. Will that discourage taking on cases?
By Steve Goldstein
Inquirer Washington Bureau
WASHINGTON - From the federal Department of Unintended Consequences:
When Congress finally changes a law dating from the Civil War to aid the
nation's veterans but it leads to a regulation that might have the
opposite effect, who's to blame?
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.
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.
Among those who argued against the test was Taub, a Villanova Law School
graduate and staff lawyer with the Homeless Advocacy Project in
Philadelphia. In 2000, the Homeless Advocacy Project established a
program to serve the legal needs of the city's homeless veterans.
In the last seven years, Homeless Advocacy Project lawyers and law-firm
volunteers have represented more than 635 of Philadelphia's homeless
veterans, the "vast majority" receiving help with VA claims, according
to Taub.
The program has been so successful that several law firms in
Philadelphia and elsewhere in the East Coast have developed pro bono
practices for homeless veterans.
But Taub says the new rule would hurt the pro bono program.
"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.
Senate staff have also conferred with VA officials about the proposed
rule.
Jeff Schrade, a spokesman for Craig, said that a written exam "was never
contemplated" by the provision allowing the VA to establish guidelines
for accreditation.
"It was never considered that attorneys would have to travel somewhere
and take a test," Schrade said. "That's what bar associations are for."
The VA was unwilling to say whether tests would be administered in
Washington or regional VA offices.
The testing requirement does have its proponents, among them the service
organizations that have represented veterans for years. But Jerry Manar,
a deputy director of the VFW, said he had not considered how it might
affect pro bono lawyers.
"I could see where it might be an investment in time . . . but this is
not simple work," said Manar.
However, Taub and the Homeless Advocacy Project provide training for
lawyers working with veterans. They have already trained scores of
private lawyers on the East Coast for pro bono VA work, Taub said.
According to VA assistant general counsel Hipolit, the written exam
could comprise as many as 100 multiple choice questions, but no decision
had been made on its form.
Hipolit said he was not surprised by the amount of adverse comment on
the proposed rule.
"We kind of expected that it would be controversial, because it's a
fairly significant change from what we're doing now," he said.
Asked whether he believed that lawyers representing vets for free might
be deterred by a test, Hipolit said, "That is certainly a legitimate
concern and we're seriously considering those comments and seeing if
there is a way that we can structure things to not discourage pro bono
representation."
Hipolit declined to predict whether the exam might be scrapped when the
final rule is issued, perhaps by the end of August.
"I'm not sure how that's going to come out," he said. "There could
definitely be changes in what comes out in the final."
Contact staff writer Steve Goldstein at 202-408-2758 or
slgoldstein@phillynews.com.
-------------------------
Second story (editorial) here...
http://www.
philly.com/philly/opinion/8525182.html
Story below:
-------------------------
Editorial | Legal Help for Veterans
Making a good thing harder
Helping veterans navigate the often complicated
and frustrating process of claiming benefits from the Department of
Veterans Affairs?
That's smart.
Doing it in a way that may well leave veterans with fewer options for
legal help than they have now?
That's dumb.
Legislation passed by Congress last year loosened curbs on the
involvement of lawyers in representing veterans, including enabling them
to enter the appeals process at an earlier stage.
But in its approach to putting the law into action, the VA wants to
force lawyers to pass an examination before they can represent veterans
in making benefits claims. This is ostensibly to satisfy another
congressional concern, that the veterans get qualified help.
But in the real world, the rule is likely to have the opposite effect.
Here's why: Many of the people who represent veterans in this area are
attorneys from big firms doing the work pro bono. Many of their clients
are indigent or even homeless veterans who could not get legal counsel
any other way.
These lawyers give up lucrative billable hours to do the VA work.
Forcing them to prepare for, schedule, and take a VA-devised examination
might prove to be just enough annoyance to persuade many of these
attorneys to take their pro bono hours elsewhere.
"Pro bono is a competitive business," says Michael Taub, a staff
attorney at the nonprofit Homeless Advocacy Project's veterans project.
Taub coordinates assistance to indigent veterans by lawyers from
big-name Philadelphia firms. He fears the proposed VA rule will cripple
the veterans project.
The VA exam seems superfluous. These lawyers are highly qualified
practitioners who have passed their states' bar examinations. And many
of them have experience navigating VA rules and regulations on behalf of
clients.
How much more reassurance of diligent representation would a VA exam
add? If the test is so vital a quality check, why would representatives
of veterans' service organizations, such as the Veterans of Foreign
Wars, be exempt? These individuals also assist veterans with claims, but
the VA would leave their training and testing to their organizations.
The rule seems to be a classic case of a well-meaning bureaucracy
putting up needless obstacles; the VA should drop it.
The nation should be in the business of removing hurdles from the path
of veterans seeking the services they are owed, not erecting new ones.
-------------------------
Larry Scott --
