Veterans' attorneys facing test

Under a proposal, lawyers would have to pass an exam to serve veterans. Will that discourage taking on cases?

Posted: July 16, 2007

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.

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