Ethics: Counseling Your Clients While Staying Within Ethical Boundaries - PowerPoint Presentation

1. Ethics: Counseling Your Clients While Staying Within Ethical BoundariesSpring 2023 Professional Training ConferenceWinter 2023 Professional Training ConferenceJune 2023 Professional Training ConferencePresenters: Katrina J. Eagle, Esq.Jim Radogna, VA Accredited Agent

2. Can I Help a Veteran Who Is Represented By an Accredited Attorney or Agent?Scenario # 1:Veteran comes into your office to apply for a Disabled Veterans License Plate.Upon discussion you discover that the veteran is represented by a VA accredited attorney in an appeal for compensation benefits.What should you do?Tell the veteran that you can’t assist them because his or her attorney could sue you for interfering with legal representation?Assist the veteran because the attorney has nothing to do with state-level benefits?2

3. Can I Help a Veteran Who Is Represented By an Accredited Attorney or Agent?Our suggestion:Ask the Veteran, “did you talk to your attorney about this first? Explain to the veteran: “If your lawyer needs us to file it for you, it would be best for your lawyer to call and assure us that it’s ok for our office to do this for you.”Further explain that without the attorney’s assurance, it’s possible that the attorney could accuse your office of interfering in an attorney-client relationship, or that your office is trying to scoop the Veteran from the attorney. You could write up a short template authorization form for the Veteran to take to the attorney as a CYA (or your office could fax or email it to the attorney while the Veteran is there in your office). 3

4. Can I Help a Veteran Who Is Represented By an Accredited Attorney or Agent?Scenario # 2:Veteran comes into your office to appeal a recent denial for service connection.Upon discussion you discover that the veteran was represented by a VA accredited attorney but no longer desires to work with that attorney.What should you do?Tell the veteran that you can’t assist them because his or her attorney could sue you for interfering with legal representation?Fill out a VAF 21-22 because the veteran has the right to fire his or her attorney at any time?4

5. Can I Help a Veteran Who Is Represented By an Accredited Attorney or Agent?Our suggestion:Explain to the veteran that although it is his or her right to change representation, the attorney will possibly still collect a fee when the claim is granted. This is true even if the attorney had nothing to do with the grant.The veteran should ask for a letter of termination of representation or disengagement letter from the attorney indicating that they are no longer being represented by an attorney.Veteran really should also ask the attorney to notify VA that the attorney waives their right to any future fee awarded in the Veteran’s case AND send the veteran a copy of that communication (in case VA withholds an attorney fee anyway, the client will have written proof to dispute the withholding).Will the attorney agree to waive future fees? Maybe, maybe not.5

6. How Does OGC Handle Attorney Fee Disputes?38 C.F.R. §14.636(e)Fees permitted for services of an agent or attorney admitted to practice before VA must be reasonable. They may be based on:a fixed feehourly ratea percentage of benefits recovered a combination of such basesWHAT IS A REASONABLE FEE?6

7. What is a Reasonable Fee?Factors VA will consider:The extent and type of services the representative performed;The complexity of the case;The level of skill and competence required of the representative in giving the services;The amount of time the representative spent on the case;The results the representative achieved, including the amount of any benefits recovered;The level of review to which the claim was taken and the level of the review at which the representative was retained;Rates charged by other representatives for similar services;Whether, and to what extent, the payment of fees is contingent upon the results achieved; andIf applicable, the reasons why an agent or attorney was discharged or withdrew from representation before the date of the decision awarding benefits.7

8. How to Challenge a FeeIf the claimant believes the fee is too high, or otherwise unreasonable, he or she can file a motion challenging the reasonableness of the fee. The Office of General Counsel (OGC) will review fee agreement for reasonableness if the claimant files a timely motion.The motion to OGC must be filed within 120 days from the date of the final VA action, which in most cases means 120 days from the date of the fee eligibility decision.If the claimant disagrees with the OGC’s fee determination, the decision is appealable to the Board of Veterans’ Appeals.Complete OGC instructions on how to challenge a fee:https://acrobatˌadobeˌcom/link/review?uri=urn:aaid:scds:US:54ca66de-94c8-32b3-b12d-0e2a2ca2a384NOTE: OGC only handles fee disputes with accredited attorneys or agents. Disputes with nonaccredited individuals or companies must be handled differently.8

9. Can I Help a Veteran Who Is Represented By a Nonaccredited Individual or Company?Scenario # 3:Veteran comes into your office to appeal a recent denial for service connection.Upon discussion you discover that the veteran signed up with a nonaccredited individual or company but no longer desires to work with them.What should you do?Tell the veteran that you can’t assist them because of their contract with the nonaccredited company?Fill out a VAF 21-22 because veterans have the right to work with whomever they desire?9

10. Can I Help a Veteran Who Is Represented By a Nonaccredited Individual or Company?Our suggestion:Explain to the veteran that although it is his or her right to work with a VSO, the unaccredited entity will likely still try to collect a fee when the claim is granted. This is true even if they had nothing to do with the grant.If the veteran gave the nonaccredited entity the username and password to their eBenefits/va.gov account, they should change the password. They should also change any PIN number they use for telephone communications with VA.Let the veteran know most nonaccredited companies are known for their very aggressive collection activities.10

11. What Veterans Should Know About Unaccredited CompaniesThe law requires that an individual who is preparing, presenting, or prosecuting a claim for benefits be accredited by VA. VA only recognizes three categories of representatives: VSOs, attorneys, and agents.Congress has determined who can charge veterans, when advocates can enter into fee agreements with claimants, and how much can be charged. Advocates cannot charge veterans to file an initial claim. Additionally, advocates may not charge a fee on future benefits payments.Many unaccredited representatives state they do not charge for the filing of a claim and are merely “consulting” or “coaching,” but require veterans to sign contracts that will make them pay unregulated sums out of future benefits. Charging in this fashion does not align with the current law, which only allows for attorneys and agents to enter into fee agreements after a denial on an initial claim and limits fees to a percentage of the back benefits if the claimant prevails.11

12. What Veterans Should Know About Unaccredited CompaniesVA requires that, to prepare, present, and prosecute claims on behalf of veterans, there must be a demonstration of competence and good moral character. VA can discipline those who fail to meet these standards. VA has NO jurisdiction over unaccredited entities.Because unaccredited representative’s fees generally rely on increasing the veteran’s future benefits, their model provides no incentive for ensuring that the veteran’s award has been assigned the correct effective date.Unaccredited representatives have no access to the veteran’s electronic VA claims file and relevant VA databases. Further, they are not copied on VA decisions and notices. As such, they cannot see the “big picture” of the claimant’s history, claims, and appeals.Occasionally, a claim for an increased rating through an unaccredited representative “backfires” and instead of being granted an increase, the veteran is faced with a proposal to reduce or sever ratings. It’s not unusual for unaccredited companies to refuse to assist the veteran in fighting the proposal.Because these unaccredited representatives cannot represent veterans in appeals before VA or the courts, veterans often turn to accredited attorneys, agents, or VSOs to step in and resolve pending matters – and, often, fix their mistakes.Unaccredited claims representatives cannot represent the veteran fully and frequently abandon the veteran once the increased rating is achieved or denied.12

13. How to Report Unaccredited RepresentativesDepartment of Veterans Affairs, Office of General Counsel (OGC). VA doesn’t exercise jurisdiction over unaccredited individuals who charge veterans outside the statutory scheme. It is important, however, to inform VA of your concerns by emailing the OGC Accreditation mailbox at ogcaccreditationmailbox@va.gov.Department of Veterans Affairs, Office of Inspector General (OIG). The OIG provides independent oversight over the operations of the Department of Veterans Affairs. If you report unlawful activity to VA OGC and receive no response, or an unfavorable response, consider reporting the matter to OIG. OIG can be reached by telephone at 800.495.8244 or online at https://www.va.gov/oig/hotline/complainant-release-preference.asp.Federal Trade Commission (FTC). One part of FTC’s mission is to protect consumers from unfair and deceptive practices in the marketplace. You should lodge your complaint with FTC at https://reportfraud.ftc.gov/#/?orgcode=USVABLG.State Attorney General. The state attorney general is the top attorney in the state and serves as the “people’s lawyer.” You can find your state attorney general here at https://www.usa.gov/state-attorney-general. State Consumer Protection Agency. Each state has a consumer protection agency to protect against fraudulent business practices. You can find your respective state agency here at https://www.usa.gov/state-consumer.13

14. Pending Legislation RE: Unaccredited RepresentativesH.R. 1139/S. 740 - Guarding Unaccredited Representatives Defrauding (GUARD) VA Benefits ActThis bill imposes fines on individuals for soliciting, contracting for, charging, or receiving any unauthorized fee or compensation with respect to the preparation, presentation, or prosecution of any claim for Department of Veterans Affairs benefits. H.R. 1822 - Preserving Lawful Utilization of Services for Veterans Act (PLUS)Provides pathway for unaccredited claims consultant model, allowing fees to be charged for initial claims. Caps fees for initial claims – 5 months of increase to $12,500.Requires accreditation to be accomplished in 90 days or person automatically accredited.Prohibits internal medical opinions; excludes independent medical opinion providers.14

15. Should I Advise A Camp Lejeune Veteran on How to Proceed?Scenario # 4:Veteran comes into your office and tells you he was just diagnosed with early-stage Parkinson’s Disease. He served at Camp Lejeune from January 1980 to July 1980.He would like to apply for compensation benefits but is not sure if he should contact a law firm about the new PACT Act Camp Lejeune Justice Act instead.Should you make a recommendation?15

16. Camp Lejeune Service Connection vs. Camp Lejeune LawsuitIn our office, we will not recommend any particular law firm that litigates Camp Lejeune lawsuits, but we will discuss the difference between service connection and a Camp Lejeune Justice Act (CLJA) lawsuit.Service Connection:Lifelong tax-free compensation benefits that may increase as condition worsens.Potential to receive Special Monthly Compensation.Potential lifelong survivor benefits to spouse.Access to VA health care.It doesn’t matter where on the base you served as long as it was between August 1, 1953 and December 31, 1987 for at least 30 days.No monetary offsets (other than retirement pay, severance, VA debt collection, etc.).16

17. Camp Lejeune Service Connection vs. Camp Lejeune LawsuitCLJA Lawsuit:One-time lump sum rather than ongoing benefits.Higher burden of proof than Camp Lejeune service connection:A claimant must offer proof of their presence at a particular location on the base to demonstrate exposure to certain volatile organize compounds (VOCs) -Trichloroethylene (TCE), Tetrachloroethylene, also called Perchloroethylene (PCE), Benzene, and Vinyl chloride.Simply being at Camp Lejeune is insufficient. A person must demonstrate exposure AND the presence or past occurrence of a cancer or serious illness that would have resulted from exposure to a VOC that would at least as likely as not cause the illness.For example, Tarawa Terrace and Hadnot Point had documented contamination from PCE and TCE, but other locations on base could be more challenging to prove.A claimant must also offer proof of damages:Medical ExpensesLost EarningsLost Earning CapacityPain & Suffering17

18. Camp Lejeune Service Connection vs. Camp Lejeune LawsuitCLJA Lawsuit:Any award shall be offset by the amount of any disability award, payment, or benefit provided to the individual under any VA program, Medicare or Medicaid.The amount which may be offset must be connected to health care or a disability rating relating to exposure to the water at Camp Lejeune.Offsets and legal fees may greatly reduce the amount of the lump sum payment to the veteran. For example:Settlement: $200,000VA Offset: $100,000Legal Fee (40% plus litigation fees) $88,000Net to Veteran $12,000This veteran can apply for benefits AND file a lawsuit, but it wouldn’t appear to make sense for him to only file a lawsuit and not pursue service connection.There’s no guarantee that the lawyers at the firms handling these lawsuits know much about VA Law. We as advocates do, so we feel it’s important to inform veterans about their options.18

19. VA Standards of Conduct – What to Do38 CFR § 14.632 Standards of conduct for persons providing representation before the Department All persons acting on behalf of a claimant shall faithfully execute their duties as individuals providing representation on a particular claim under § 14.630, representatives, agents, or attorneys. All individuals providing representation are required to be truthful in their dealings with claimants and VA. An individual providing representation on a particular claim under § 14.630, representative, agent, or attorney shall: Provide claimants with competent representation before VA. Competent representation requires the knowledge, skill, thoroughness, and preparation necessary for the representation. This includes understanding the issues of fact and law relevant to the claim as well as the applicable provisions of title 38, United States Code, and title 38, Code of Federal Regulations; Act with reasonable diligence and promptness in representing claimants. This includes responding promptly to VA requests for information or assisting a claimant in responding promptly to VA requests for information. 38 C.F.R. §§ 14.632(a)&(b). 19

20. VA Standards of Conduct – What NOT to DoAn individual providing representation on a particular claim under § 14.630, representative, agent, or attorney shall not: Violate the standards of conduct as described in this section; Circumvent a rule of conduct through the actions of another; Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty; Violate any of the provisions of title 38, United States Code, or title 38, Code of Federal Regulations; Enter into an agreement for, charge, solicit, or receive a fee that is clearly unreasonable or otherwise prohibited by law or regulation; Solicit, receive, or enter into agreements for gifts related to services for which a fee could not lawfully be charged; Delay, without good cause, the processing of a claim at any stage of the administrative process; Mislead, threaten, coerce, or deceive a claimant regarding benefits or other rights under programs administered by VA; Engage in, or counsel or advise a claimant to engage in acts or behavior prejudicial to the fair and orderly conduct of administrative proceedings before VA; Disclose, without the claimant's authorization, any information provided by VA for purposes of representation; or Engage in any other unlawful or unethical conduct. 38 C.F.R. § 14.632(c)20

21. VA Standards of Conduct – Termination of AccreditationAccreditation or authority to provide representation on a particular claim shall be canceled when the General Counsel finds, by clear and convincing evidence, one or more of the following: Violation of or refusal to comply with the laws administered by VA or with the regulations governing practice before VA including the standards of conduct in § 14.632; Knowingly presenting or prosecuting a fraudulent claim against the United States, or knowingly providing false information to the United States; Demanding or accepting unlawful compensation for preparing, presenting, prosecuting, or advising or consulting, concerning a claim; Knowingly presenting to VA a frivolous claim, issue, or argument. A claim, issue, or argument is frivolous if the individual providing representation under § 14.630, representative, agent, or attorney is unable to make a good faith argument on the merits of the position taken or to support the position taken by a good faith argument for an extension, modification, or reversal of existing law; A representative, agent, or attorney before VA demonstrates a lack of the degree of competence necessary to adequately prepare, present, and prosecute claims for veteran's benefits.Any other unlawful or unethical practice adversely affecting an individual's fitness for practice before VA. 38 C.F.R. § 14.633(c)21

22. CVSO Standards of ConductMaintain confidentiality of claimants’ records.Prepare and perfect all claims to the best of your ability with the intent of affording the claimant the benefits to which they are entitled. Ensure that all information is true and factual to the best of your knowledge.Maintain high professional standards in dealing with other service officers, (federal, state, and local) and other persons and agencies as necessary in service to your client.Provide services without prejudice to all persons making a claim to the Department of Veterans Affairs.Maintain a working knowledge of all rules and regulations concerning veterans’ benefits and strive to keep such knowledge updated considering constantly changing laws and regulations.Under no circumstances accept remuneration in cash or other form for services rendered.Not knowingly present a fraudulent claim or submit false information in connection with a claim before any government agency. Not engage in any unlawful, unprofessional or unethical practice such as deceiving or misleading a client. Refrain from the use of racial, religious, age-related, sexual or ethnic epithets, innuendoes, slurs or jokes in the workplace. Conduct yourself in a totally professional manner and refrain from sexual advances, verbal or physical conduct of a sexual nature, or requests for sexual favors.No discrimination based on race, color, religion, sex, sexual orientation, gender identity or expression, age, disability, marital status, citizenship, national origin, genetic information, or any other characteristic protected by law. 22

23. Hypothetical # 1After helping her win a difficult appeal with a large retro award, a grateful veteran sends you a thank you card with a $100 gift certificate.What should you do?Keep the gift certificate because it’s just a token amount compared to the six-figure retro payment the veteran received.Thank the veteran for her generosity but explain that you cannot accept the gift.Donate the gift certificate to a good cause.Follow the guidelines set out by your organization.What if the veteran sent you flowers instead of a gift card?23

24. Hypothetical # 1 Rules to ConsiderA representative shall not: Solicit, receive, or enter into agreements for gifts related to services for which a fee could not lawfully be charged. (Slide 20)Accreditation shall be canceled: Demanding or accepting unlawful compensation for preparing, presenting, prosecuting, or advising or consulting, concerning a claim. (Slide 21)24

25. Hypothetical # 2Veteran’s claim for a back condition is denied because of a negative C&P medical opinion. There is no positive medical evidence in the record.You advise the veteran that, in your opinion, the best course of action is to seek a nexus letter from his chiropractor and file a supplemental claim.The veteran brings you a letter from his chiropractor which states that the back condition is either from carrying heavy equipment in service or from a post-service auto accident. The chiropractor is unwilling to modify the letter because he’s not comfortable stating that it’s at least as likely as not that the veteran’s back condition is due to service.Not wanting to use the letter, you recommend changing direction and filing a higher level review, arguing that the negative C&P exam was inadequate for rating purposes and therefore a duty to assist error occurred.The veteran objects and insists on filing a supplemental claim with the chiropractor’s letter.25

26. Hypothetical # 2What should you do?File the supplemental claim with the chiropractor’s letter. It’s the veteran’s decision, not yours.File the higher level review and argue a DTA. It’s for the veteran’s own good.Explain to the veteran that, in your experience, the higher level review is the better, safer way to proceed. If he still rejects your advice, go ahead and file the supplemental claim with the chiropractor’s letter.Explain to the veteran that, in your experience, the higher level review is the better, safer way to proceed. If he still rejects your advice, go ahead and file the supplemental claim with the chiropractor’s letter. In addition, memorialize your discussion with the veteran in writing.Explain to the veteran that you will not file the supplemental claim, even if he wants to.26

27. Hypothetical # 2 Rules to ConsiderA representative shall: Provide claimants with competent representation before VA. Competent representation requires the knowledge, skill, thoroughness, and preparation necessary for the representation. This includes understanding the issues of fact and law relevant to the claim as well as the applicable provisions of law. (Slide 19)27

28. Hypothetical # 3You’ve overwhelmed by your workload lately.In fact, you recently missed a few filing deadlines but fortunately you were able to use COVID extensions to mitigate the damage to your clients.You’re now faced with a new case that has over 700 documents in VBMS, involves several complicated issues that will require extensive research, and has a deadline approaching within a month.You just don’t see any way that you can diligently assist this new client.28

29. Hypothetical # 3What should you do?This Vet needs assistance and you have an obligation to help her, so you take on the case and hope for the best.Meet with your supervisor and let her know that you have serious doubts that you have the time to adequately represent the Veteran.Do not take on the case but provide the Veteran with advice on where else she can get help with her claim.Both B and C.29

30. Hypothetical # 3 Rules to ConsiderA representative shall: Act with reasonable diligence and promptness in representing claimants. (Slide 19)A representative shall not: Delay, without good cause, the processing of a claim at any stage of the administrative process. (Slide 20)30

31. Hypothetical # 4Surviving spouse wins her DIC claim with your help and is awarded $37,000 in retroactive benefits according to the Award Print in VBMS.A week later, the widow calls and says she just received a direct deposit from VA for $51,000.You look at her VBMS file and can’t see any reason why the award amount isn’t $37,000.31

32. Hypothetical # 4How should you advise your client?Say or do nothing.Bring the error to the attention of the VA without consulting your client.Inform your client about the error, request her permission to inform VA, but if she doesn’t give it to you, you must inform the VA.Inform your client about error, request her permission to inform VA, but if she doesn’t give it to you, explain that an overpayment may be created (which could be subject to a waiver claim b/c of administrative error).Inform your client about the error, request her permission to inform VA, but if she doesn’t give it to you, you must withdraw your representation. 32

33. Hypothetical # 4 Rules to ConsiderA representative shall not: Engage in conduct involving fraud, deceit, misrepresentation, or dishonesty. (Slide 20)A representative shall not: Engage in, or counsel or advise a claimant to engage in acts or behavior prejudicial to the fair and orderly conduct of administrative proceedings before VA. (Slide 20)All individuals providing representation are required to be truthful in their dealings with claimants and VA. (Slide 19)33

34. Hypothetical # 5Veteran served on active duty from 1981 to 1986. He had no other periods of service.He wants you to help him file a claim for NCS pension.You explain to the veteran that he does not meet the eligibility requirements for pension because he did not serve in a period of war.He asks you to file the claim anyway: “Let’s just throw it against the wall.”34

35. Hypothetical # 5What should you do?It’s the policy in your office to file any and all claims, regardless of the merit, so you file the claim.Inform the veteran that because his claim has no merit, you cannot represent him on that claim.Ask the veteran if he has any current disabilities that he thinks may be related to service.B and C. 35

36. Hypothetical # 5 Rule to ConsiderAccreditation shall be canceled: Knowingly presenting to VA a frivolous claim, issue, or argument. A claim, issue, or argument is frivolous if the individual providing representation under § 14.630, representative, agent, or attorney is unable to make a good faith argument on the merits of the position taken or to support the position taken by a good faith argument for an extension, modification, or reversal of existing law. (Slide 21)36

37. QUESTIONS?37

38. More Questions? Feel free to contact us about questions from this training or ANYTIME you have a question about a claim: CACVSO@eagleveteranslaw.com38