Firing Your Lawyer?

[dav_marine72]

I assume once your under contract there is no way to get out with your lawyer? I would assume you need to prove some type of malice on their part? Not happy with my current attorney but I think I'm stuck until appeal process is over which means until I die. Anyone know if there is anyway out?

[GuaymasJim]

Need a lot more information! Have you discussed your dissatisfaction with him and given him the opportunity to correct what ever is bothering you? What work has he done for you? He apparently felt that you have a winnable claim with enough potential retro $ to make it worth his time; and you felt he was the right attorney for the job. What has changed? What has or hasn't he done in violation of your contract? Can what ever it is be fixed? How long has he been your attorney? What are you claiming in addition to the long list of conditions for which you are already service-connected? What VA benefit would you receive by winning the claim the attorney was hired to assist you with? At what stage is your claim currently?

It has been my experience that it is much more difficult to get an attorney than it is to get rid of one. Keep in mind that if a second attorney takes your case, that attorney becomes liable for any and all possible errors by commission or omission committed by your original attorney. This could be legal malpractice and/or legal malfeasance as opposed to "malice" which would mean he has intentionally committed some act for the expressed purpose of harming you or your claim. The latter is extremely rare and would be dealt with by your state's bar and would have little or nothing to do with your claim. Not many attorneys are willing to take a case under those circumstances unless the potential chances of success AND the amount of money they would collect by being successful are BOTH very high.

Edited February 22, 2014 by GuaymasJim (see edit history)

[Navy04]

I have a crappy lawyer too. I have had to do all of my leg work. I had called him probably 100 times and finally last week after a few months he called back. He had the nerve to tell me "Since it has only been 5 months on your claim Sir, we would only make $300 on your case if you get approved, WTH". Since I am under contract, I am just going to do all the leg work, and if I have any questions, there is always a lot of help on this site. If I win, I don't care what I have to pay the lawyer, as long as I win in the end. Sorry to hear of your misfortunes. You just need to take the weekend and think about what to do next. God Bless and keep us posted.

[AmicusBrief]

Keep in mind that if a second attorney takes your case, that attorney becomes liable for any and all possible errors by commission or omission committed by your original attorney. This could be legal malpractice and/or legal malfeasance as opposed to "malice"...

After reading this statement I drove to Whole Foods and climbed into a barrel of bulk Sea Salt and quietly closed the lid.

[john999]

Pick your lawyer carefully and pick your fights carefully. I am in favor of lawyers helping vets, but when I read what I just read I wonder. However, if you have a claim where you feel you are in over your head then asking for legal advice and/or representation is probably your best bet most of the time. I tell you one thing: The amount of potential retro is equal to the amount of zeal the lawyers show IMO. My lawyer has made many trips to Florida from Jersey and from Jersey to DC on my (and his) behalf due to potential retro, and the fact he is in so deep now he wants to win badly. When they ignored his briefs at DRO and BVA he got mad. Now at CAVC they may still deny us. Such is life with the VA machine.

John

[dav_marine72]

I wouldn't have even gone to a lawyer except I thought it was needed at the CAVC. She has a ton at stake. Were talking 4 service connections back to 2000 for increases. My back is on appeal from an original 20% rating. Ton of ignored evidence I provided from outside providers, etc. I think she wouldn't want to give up her $$$$. I may just be jumping the gun. Getting the joint remand from the CAVC with explicit instructions from the AMC to the RO I thought maybe something would actually happen. They gave me higher ratings from 2013 when I was already 100% and said the examiner did not provide opinions on my conditions prior to her 2013 exam. When I got the 28 page exam report for the eight service connections on appeal to my dismay the RO did not ask the examiner to make an opinion prior to 2013 as instructed. So I assume it's another 2-3 years at the AMC. She submitted a rebuttal but I don't know.

[john999]

I just had my CUE that involved potential 30 years of 100% denied at the CAVC. I worked on that CUE since 2005. I had two lawyers at my hearing. The court panel just denied every single argument we raised. It is depressing. Even if I were to appeal this to the federal court and I won I am not sure I will live long enough to collect a dime. Without a lawyer my claim would have been chicken$#@!D years ago. I don't think it is that difficult to fire your lawyer, but if you lose often enough they will probably fire you. You can have the best lawyers and great evidence and still lose. All you can do is appeal or just walk away with what you have. Considering the investment we both have made who wants to give up?

John

[dav_marine72]

Sorry to hear John. I often feel I will die before getting my claims settled also. I really thought with the joint remand and instructions from the BVA on how to consider rating me higher was actually going to do something at the RO. You'd think after 18 years of fighting these guys I'd know better. Yeah I know your Army bro but I'm laughing at these clowns like really? I was a Marine and I'm Irish. I'm stubborn as hell! Never giving up. Thanks for your thoughts and everyone else too. John - I know you've been out here for years and you help a ton of people. I fall off the wagon because I come here and think of my case. Thanks for your time!

[VetEyeC]

Hi all I am new to the forum. I can across this as a link somewhere on this site, in a different topic.

Section (f) (1) say that "A power of attorney may be revoked at any time, and an agent or attorney may be discharged at any time". I have no idea how that will affect the claims. Although I think we should read the entire document.

§14.631 Powers of attorney; disclosure of claimant information.

(a) A power of attorney, executed on either VA Form 21-22, “Appointment of Veterans Service Organization as Claimant’s Representative,” or VA Form 21-22a, “Appointment of Attorney or Agent as Claimant’s Representative,” is required to represent a claimant before VA and to authorize VA’s disclosure of information to any person or organization representing a claimant before the Department. Without the signature of a person providing representation for a particular claim under §14.630 of this part or an accredited veterans service organization representative, agent, or attorney, the appointment is invalid, and the person appointed to provide representation is under no obligation to do so. The power of attorney shall meet the following requirements:

(1) Contain signature by:

(i) The claimant, or

(ii) The claimant’s guardian, or

(iii) In the case of an incompetent, minor, or otherwise incapacitated person without a guardian, the following in the order named—spouse, parent, other relative or friend (if interests are not adverse), or the director of the hospital in which the claimant is maintained; and

(iv) An individual providing representation on a particular claim under §14.630 of this part or an accredited veterans service organization representative, agent, or attorney; and

(2) Shall be presented to the appropriate VA office for filing in the veteran’s claims folder.

(b) VA may, for any purpose, treat a power of attorney naming as a claimant’s representative an organization recognized under §14.628, a particular office of such an organization, or an individual representative of such an organization as an appointment of the entire organization as the claimant’s representative, unless the claimant specifically indicates in the power of attorney a desire to appoint only the individual representative. Such specific indication must be made in the space on the power-of-attorney form for designation of the representative and must use the word “only” with reference to the individual representative.

© An organization, individual providing representation on a particular claim under §14.630, representative, agent, or attorney named in a power of attorney executed pursuant to paragraph (a) of this section may withdraw from representation provided before a VA agency of original jurisdiction if such withdrawal would not adversely impact the claimant’s interests. This section is applicable until an agency of original jurisdiction certifies an appeal to the Board of Veterans’ Appeals after which time 38 CFR 20.608 governs withdrawal from representation before the Board. Withdrawal is also permissible if a claimant persists in a course of action that the organization or individual providing representation reasonably believes is fraudulent or criminal and is furthered through the representation of the organization or individual; the claimant fails to uphold an obligation to the organization or individual providing representation regarding the services of the organization or individual; or other good cause for withdrawal exists. An organization or individual providing representation withdraws from representation by notifying the claimant, the VA organization in possession of the claims file, and the agency of original jurisdiction in writing prior to taking any action to withdraw and takes steps necessary to protect the claimant’s interests including, but not limited to, giving advance notice to the claimant, allowing time for appointment of alternative representation, and returning any documents provided by VA in the course of the representation to the agency of original jurisdiction or pursuant to the claimant’s instructions, to the organization or individual substituted as the representative, agent, or attorney of record. Upon withdrawing from representation, all property of the claimant must be returned to the claimant. If the claimant is unavailable, all documents provided by VA for purposes of representation must be returned to the VA organization in possession of the claims file. Any other property of the claimant must be maintained by the organization or individual according to applicable law.

Note to §14.631©: Written notification to VA may be submitted via hand delivery, mail, electronic mail, or facsimile.

(d) Questions concerning the validity or effect of powers of attorney shall be referred to the Regional Counsel of jurisdiction for initial determination. This determination may be appealed to the General Counsel.

(e) (1) Only one organization, representative, agent, or attorney will be recognized at one time in the prosecution of a particular claim. Except as provided in §14.629© and paragraph (f)(2) of this section, all transactions concerning the claim will be conducted exclusively with the recognized organization, representative, agent, or attorney of record until notice of a change, if any, is received by the appropriate office of VA.

(2) An organization named in a power of attorney executed in accordance with paragraph (a) of this section may employ an attorney to represent a claimant in a particular claim. Unless the attorney is an accredited representative of the organization, the written consent of the claimant shall be required.

(f) (1) A power of attorney may be revoked at any time, and an agent or attorney may be discharged at any time. Unless a claimant specifically indicates otherwise, the receipt of a new power of attorney executed by the claimant and the organization or individual providing representation shall constitute a revocation of an existing power of attorney.

(2) If an agent or attorney limits the scope of his or her representation regarding a particular claim by so indicating on VA Form 21-22a, or a claimant authorizes a person to provide representation in a particular claim under §14.630, such specific authority shall constitute a revocation of an existing general power of attorney filed under paragraph (a) of this section only as it pertains to, and during the pendency of, that particular claim. Following the final determination of such claim, the general power of attorney shall remain in effect as to any new or reopened claim.

(g) If a request to substitute is granted pursuant to 38 CFR 3.1010, then a new VA Form 21-22, “Appointment of Veterans Service Organization as Claimant's Representative,” or VA Form 21-22a, “Appointment of Individual as Claimant's Representative,” under paragraph (a) of this section is required in order to represent the substitute before VA. If the substitute desires representation on a one-time basis pursuant to §14.630(a), a statement signed by the person providing representation and the substitute that no compensation will be charged or paid for the services is also required. (Authority: 38 U.S.C. 501(a), 5121A, 5902, 5903, 5904)

(The Office of Management and Budget has approved the information collection requirements in this section under control number 2900-0321.)

[43 FR 46535–46537, Oct. 10, 1978, amended at 53 FR 52421, Dec. 28, 1988; 61 FR 7216, Feb. 27, 1996; 68 FR 8546, Feb. 24, 2003; 73 FR 29873, May 22, 2008; 79 FR 52983, Sep. 5, 2014]

Supplement Highlights references: 83(3), 111(1).

[Recondo@53]

I'm aware that you can change your agent under good reasoning. My case is currently at the BVA. I have decided I no longer want representation as I am doing all the leg work myself. Also, I have already had my BVA hearing and then after, brought on the attorney on. There is really no point to have them since I am catching VA mistakes on my claims and I am submitting evidence on my own. Can I just submit a new 21-22a and appoint myself as the agent? Can anyone advise on the path I should take? Thanks in advance!

[Chuck75]

Unless you can show cause, the fired attorney will likely retain rights to a % of any retro settlement.