Attorneys Representing Veterans: Opportunities and Challenges

Vol. 23 No. 3

By

David Godfrey is a senior attorney to the ABA Commission on Law and Aging. He offers special thanks to Kenneth Goldsmith, legislative counsel and state legislative counsel for the ABA Governmental Affairs Office, for his help in editing this article.

Six years ago, options for attorneys to assist veterans seeking benefits were greatly expanded, and that created both opportunities and challenges for lawyers. Prior to that time, lawyers had been involved in helping veterans seek benefits, largely on a pro bono basis. The changes to the Code of Federal Regulations in 2008 established a system for authorizing advocates to represent veterans in appeals, and it changed the point in the appeals process at which an attorney can start charging a fee. See 38 C.F.R. §§ 14.629–.631 (2008) (authorizing accreditation of attorneys). There is still a prohibition on charging for helping with the initial claims form and eligibility verification. See Accreditation Frequently Asked Questions, Off. Gen. Counsel www.va.gov/ogc/accred_faqs.asp (last updated Oct. 10, 2013) (“Representation” topic).

The 2008 amendments modified the procedural point at which a veteran could pay a lawyer for representation. Previously, lawyers could be paid starting at the appeal to the Court of Appeals for Veterans Claims, and everything before that had to be essentially pro bono. Now attorneys may be paid for conducting a first-level appeal to the Board of Veterans’ Appeals. One of the goals of this change was to expand the options for a veteran unsatisfied with the original determination by the Department of Veterans Affairs (VA). As a result, more attorneys can afford to undertake appeals for veterans unsatisfied with the original VA determination.

The 2008 amendments also created a new system of accreditation for attorneys and other advocates wishing to represent veterans, with or without charging fees. The goal of this change was to ensure that advocates representing veterans meet minimum standards and are accountable to the VA. For lawyers, the news is good—the VA determined that being a lawyer in good standing satisfies the initial certification requirement. Those seeking to represent veterans must file to be accredited by the VA. This is very much like being admitted to a federal court.

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