Have Had Attorney Less Than Two Months, Owe Fees?

[sevensees]

Hello,

At the suggestion of many users here (especially Berta), we hired an attorney for my father's claim less than two months ago.

He's been fighting for 10 years on this claim. He filed in 2005 and was rated 50% major depression and anxiety in 2012. He had a c&p exam today for his appeal and after speaking to the examiner alone afterward about his condition and other doctors declaring him permanently disabled, she said "Trust me, you should be fine".

If that means he might get a much higher rating soon and "possibly" a very large back pay for 10 years, us he required to pay the new attorney 20% of the back pay for 10 years when they had absolutely no bearing "yet" on his case?

They filed a new claim for headaches, but

He hasn't had any motion from the VA on that yet. I do t think they have even received the C-file yet.

There is no problem in paying someone money that they have earned and helped to achieve, but if this goes through as is, they had no bearing. I'm sure we should pay them something for filing this new headache claim since they did that, but not 20% of 10 years they had nothing to do with. Obviously if this doesn't go well and the VA doesn't increase for some reason and they fight to help us win it's a different story.

Does anyone have any advice or suggestions on this? Thank you very much!

[rootbeer22]

sevensees

Did you both (you and the attorney) have a misunderstanding about your agreement or contract with the lawyer? I've dealt with a couple of slimy attorneys, a couple of times in my life? It sounds like your attorney wants a piece of "all" of your VA claims--old and new? However, if you did not specify the limitations on what he is representing you on/for, you could very well be on tap for everything and to give him a percentage for "all" of your contentions that he can get back-pay on? The other thing they do, is put in a "bail-out" clause of your agreement in which they can charge you 2 to 3 hundred dollars and hour for work they do on your behalf if you leave them before you get a final outcome on you VA claim. This also includes incidental charges that can turn into significant extra money? Frankly, they are not all bad and there are some good ones but you need to understand what "authority" fully that you give them..otherwise the relationship can be very costly to you..over and above the normal rates for a Vet....goodluck...rootbeer22..

Edited July 13, 2015 by rootbeer22 (see edit history)

[Navy04]

I have tried to help many Vets that were in this same boat, and ultimately most of them had to pay the 20% overall regardless of what the Lawyer did or did not do, as that is what the Contract or Agreement stated. In the end if your father gets what he has been fighting for, does it really matter. My twin brother just got his SSDI and by the time the Ex and the Lawyers get their money, there wont be enough retro left for a bowl of rice, but guess what, Now he gets a Check and Benefits for the rest of his life, so the rest is Water under the Bridge. Good luck and God Bless!!!

[Chuck75]

The usual appeal based agreement covers the period and issues involved in the appeal. The 20% is 20% of the resultant retro pay

won as a result of the appeal. The VA rules also allow incidental expenses. EAJA also has various rules that may be involved.

[63SIERRA]

GIVE UNTO CEASAR WHAT IS CEASARS AND GIVE UNTO GOD WHAT IS GODS.

If a person works for you they should be compensated .. if you made an aggreement, honor it.

Edited July 13, 2015 by 63SIERRA (see edit history)

[sevensees]

Thank you all. It would have most likely been better then to wait until after the appeal decision to hire an attorney.

I have no problem paying someone for a claim they helped win, but to pay them for something they had no assistance with seems assinine.

Edited to correct phones auto correcting.

Edited July 13, 2015 by sevensees (see edit history)

[Buck52]

Charging a Fee for Help with Filing a Claim

sevensees

Maybe this will help ya understand the attorney fees a little better!

Generally, no individual or organization may charge a fee for help with filing an initial application for benefits. There is only one exception to this rule and that is under the third-party exemption in 38 CFR § 14.636 (d). We have included this citation in this paper. The requirements under this exception are very limiting and very demanding. No one that we know of, who is charging a fee, thinking he or she is operating under this exception, is doing it legally. Here are the ways they are violating this law. (In most cases those who are operating illegally are engaging in all 4 of these unlawful activities.)

(1) The person paying the fee is not a disinterested third party as required by law.

(2) The person filing the claim is not submitting the fee agreement to VA general counsel as required.

(3) The person filing the claim is not submitting the disclaimer to General Counsel as required.

(4) In some cases, the paying of the fee is contingent upon a percentage of the amount of the claim being approved -- this is not legal.

If you are working with someone who is not operating legally as outlined above, you should not continue to use that person's services. If you yourself are operating in a manner that is not in accord with the conditions outlined above, you must stop doing that. You're not legal. Not only could unauthorized people get a notice to cease and desist but in some cases there could be fines or legal action involved as well. It's not worth it.

38 CFR § 14.636 Payment of fees for representation by agents and attorneys in proceedings before Agencies of Original Jurisdiction and before the Board of Veterans' Appeals.

(a) Applicability of rule. The provisions of this section apply to the services of accredited agents and attorneys with respect to benefits under laws administered by VA in all proceedings before the agency of original jurisdiction or before the Board of Veterans' Appeals regardless of whether an appeal has been initiated.

(b) Who may charge fees for representation. Only accredited agents and attorneys may receive fees from claimants or appellants for their services provided in connection with representation. Recognized organizations (including their accredited representatives when acting as such) and individuals recognized under §14.630 of this part are not permitted to receive fees. An agent or attorney who may also be an accredited representative of a recognized organization may not receive such fees unless he or she has been properly designated as an agent or attorney in accordance with §14.631 of this part in his or her individual capacity as an accredited agent or attorney.

© Circumstances under which fees may be charged. Except as noted in paragraph ©(2) and in paragraph (d) of this section, agents and attorneys may charge claimants or appellants for representation provided: after an agency of original jurisdiction has issued a decision on a claim or claims, including any claim to reopen under 38 CFR 3.156 or for an increase in rate of a benefit; a Notice of Disagreement has been filed with respect to that decision on or after June 20, 2007; and the agent or attorney has complied with the power of attorney requirements in §14.631 and the fee agreement requirements in paragraph (g) of this section.

(1) Agents and attorneys may charge fees for representation provided with respect to a request for revision of a decision of an agency of original jurisdiction under 38 U.S.C. 5109A or the Board of Veterans' Appeals under 38 U.S.C. 7111 based on clear and unmistakable error if a Notice of Disagreement was filed with respect to the challenged decision on or after June 20, 2007, and the agent or attorney has complied with the power of attorney requirements in §14.631 and the fee agreement requirements in paragraph (g) of this section.

(2) In cases in which a Notice of Disagreement was filed on or before June 19, 2007, agents and attorneys may charge fees only for services provided after both of the following conditions have been met:

A final decision was promulgated by the Board with respect to the issue, or issues, involved in the appeal; and

The agent or attorney was retained not later

...............Buck

[Philip Rogers]

No offense, but you're an adult and you agreed to those terms. Next time don't sign so quickly!!! Take a day or two to think it over. Check and see if the attorney is certified/authorized by the VA, to represent veterans claims, at the VA, and if not, you might be able to get out of it. jmo

pr

[sevensees]

GIVE UNTO CEASAR WHAT IS CEASARS AND GIVE UNTO GOD WHAT IS GODS.

If a person works for you they should be compensated .. if you made an aggreement, honor it.

There's nothing wrong with paying people for working for you and I agree as I stated above that they should be compensated. But if they were just hired and did nothing to help with the current claim that pays them possibly $60,000 in pack pay they did nothing to achieve, I don't see how that would be considered fair. It would be fair to pay them what would be appropriate for ordering a c-file, filing a headache claim with is not yet in motion, and where else they have done in the 1 month+ since being hired.

We hired them to help win a back pay. If they don't help win that back pay, how come they should be compensated an extreme amount for no relevant work associate with their big pay day?

[Buck52]

sevensees

When you hired this attorney and he/she is legal with the VA Rules and you appointed him/her POA to help you with this claim and you agreed to pay if you win...

Then your bound to pay him/her upon winning your Award and if this means your Appeal 20 years old or your first initials claim and this attorney wins it all for you then yes you should pay him even if it means some things he never did the point is he won and you get all this BACK RETRO, then he in entitled to the 20%,

Ask yourself this? would you have won without the help of this attorney? probably not and the hamster wheel keeps on rolling.

...I understand what your meaning is and it don't seem fair but that's the way it is...so basically when you hire an Accredited Attorney, &give him/her POA and he wins your claim he/she in entitled to the 20% retro.

Maybe this will help understand about attorney fees a little better!

VA Office of General Counsel Website -- Frequently Asked Questions about Accreditation

http://www4.va.gov/ogc/accred_faqs.asp

Question: In a law office with attorneys and paralegals working under the supervision of a single Department of Veterans Affairs (VA) accredited attorney, who needs to apply for VA accreditation using a VA Form 21a?

Response: Accreditation means the authority granted by VA to representatives, agents, and attorneys to assist claimants in the preparation, presentation, and prosecution of claims for VA benefits. 38 C.F.R. § 14.627(a). Without accreditation, an individual may not independently assist claimants in the preparation, presentation, and prosecution of claims for VA benefits.

VA regulations allow interns, paralegals, and law students to assist in preparation, presentation, and prosecution of claims for VA benefits of claimants for benefits, but only under the direct supervision of the attorney of record, and with the specific written consent of the claimant. 38 C.F.R. § 14.629©(3). VA does not accredit these individuals. With the written consent of the claimant, attorneys affiliated or associated with the attorney of record may assist in the representation of the claimant, and may do so without the requirement for direct supervision by the attorney of record. 38 C.F.R. § 14.629©(2).

Thus, in a law firm where several attorneys and paralegals work on VA claims for a single accredited attorney properly appointed on a VA Form 21-22a as the attorney of record, each attorney must be accredited if their work involves assisting claimants in the preparation, presentation, and prosecution of claims for veterans benefits. Paralegals may assist the attorney of record subject to the written consent of the claimant but may not independently provide representation to claimants.

Question: If an attorney’s practice consists solely of advising clients that they might be eligible for benefits and referring them to a recognized service organization or accredited agent or attorney, does the attorney need to be accredited?

Response: No. As a general rule, an attorney’s practice of advising veterans about VA benefits not involving a specific claim does not require accreditation. Aside from regulating admission to practice before the Department, VA’s accreditation authority is generally limited to regulating the conduct of individuals in assisting claimants with the preparation, presentation, and prosecution of claims for benefits and reviewing the fees and expenses charged for representation in proceedings before the Department. Reviewing a veteran’s records, researching available VA benefits, and advising a veteran as to potential benefits before he or she decides to file for a benefit is not part of the preparation, presentation, or prosecution of a claim, and as such, is outside VA’s accreditation authority. Accordingly, accreditation is not required for such consultation by attorneys.

Question: If an attorney works with pension benefit clients and advises clients as to eligibility requirements, but does not file the application for them, do they need to be accredited?

Response: Yes. In answering this question, we assume that (1) a “pension benefit client” means a veteran not currently receiving VA pension but one who has expressed intent to file for such benefit, and (2) that the advice provided includes those acts in making the claim ready for filing, but not the actual filing of the claim. Here, the advice constitutes preparation of a claim and therefore requires accreditation. This is because the advice is given in regards to a specific application for benefits rather than general advice not related to a specific claim. The difference is significant in that the purpose of VA’s accreditation program is to ensure that claimants for VA benefits receive qualified assistance in preparing and presenting their claims.

Question: Is VA accreditation required to assist a veteran in preparing his or her claim?

Response: Yes. Accreditation means the authority granted by VA to assist claimants in the preparation, presentation, and prosecution of claims for benefits. 38 C.F.R. § 14.627(a). Unaccredited individuals may provide other services to veterans so long as they do not assist in the preparation, presentation, and prosecution of claims for benefits.

Question: I am providing pro bono representation to a veteran. Does this require VA accreditation?

Response: Yes. Our intent is that attorneys will apply for accreditation for any new representation as indicated by the filing of a VA Form 21-22a after June 22, 2008. The claim and a VA Form 21-22a may be filed while the accreditation application is pending. VA Regional Offices (RO) have been instructed to accept such filings and communicate to the attorney the need for accreditation. Although representation without accreditation is not permissible, the RO will hold the VA Form 21-22a (permitting the claimant to have his or her choice of representation) until the accreditation application has been processed.

Attorneys who initiated representation on a claim prior to the June 23, 2008 effective date of the new rules, need not seek accreditation for representation provided on that claim. Initiation of a representation before the effective date of the new rules would be indicated by appointment on a VA Form 21-22a or an attorney’s letterhead

...............Buck

Edited July 13, 2015 by Buck52 (see edit history)

[sevensees]

No offense, but you're an adult and you agreed to those terms. Next time don't sign so quickly!!! Take a day or two to think it over. Check and see if the attorney is certified/authorized by the VA, to represent veterans claims, at the VA, and if not, you might be able to get out of it. jmopr

Sir, I agree that I'm an adult and we signed those papers. And yes if I made a mistake I may have to live with it. I may have just cost my father a lot of money when it wasn't needed or maybe I should have waited until the appeal decision came through..

But I come here looking for help. Pointing out that I'm an adult and being condescending isn't exactly necessary, is it?

[sevensees]

I will read all of these replies when I get home in a little while. Thank you all for your help.

[Philip Rogers]

Sir, I agree that I'm an adult and we signed those papers. And yes if I made a mistake I may have to live with it. I may have just cost my father a lot of money when it wasn't needed or maybe I should have waited until the appeal decision came through..

But I come here looking for help. Pointing out that I'm an adult and being condescending isn't exactly necessary, is it?

I'm sorry if I "hurt your feelings." I don't believe I was condescending and I wasn't trying to be. As an "adult" you should know by now that life isn't always fair. Again, you signed it. Even stating what I did, I offered a possible way out for you. Good luck to your Dad. I'll withhold any further assistance, so as not to hurt "your feelings," and further cause you pain.

jmo

pr

[sevensees]

I'm sorry if I "hurt your feelings." I don't believe I was condescending and I wasn't trying to be. As an "adult" you should know by now that life isn't always fair. Again, you signed it. Even stating what I did, I offered a possible way out for you. Good luck to your Dad. I'll withhold any further assistance, so as not to hurt "your feelings," and further cause you pain.

jmo

pr

I have been up all night with my father, helping him get through his C&P exam that he had this morning. I litereally haven't slept since Saturday night. After his exam today, I had to take my mother to the dentist for emergency dental surgery, so maybe I was a little quick to react.

But you don't need to jump all over the life isn't fair stuff and "hurt feelings" and "causing me further pain" stuff. Yeah, if its not productive to the topic, I guess I don't really need to hear it. But I do thank you anyway. I will be looking into the attorney to verify that. I do appreciate it.

Edit: Yes, they are an accredited attorney with the VA.

Edited July 13, 2015 by sevensees (see edit history)

[sevensees]

Ask yourself this? would you have won without the help of this attorney? probably not and the hamster wheel keeps on rolling.

Hi Buck, thanks for the info.

What I had stated was that if we do win this from the appeal as it stands, then yes. We would have won this without the help of an attorney. The appeal has been on going for over 10 years, the lawyer was hired less than two months ago They have not done a single thing with this appeal. All they have done so far for my father was file a new headache claim.

[sevensees]

I found this, and I'm hoping it might be useful. The only problem is that the bottom part about the presumptions of fees seems to make the entire top part irrelevant... since all fees are 20% anyway.

FEES MUST BE REASONABLE

Fees may neither be excessive nor unreasonable. VA may on its own motion or at the request of a veteran or claimant seek review of a fee agreement concerning the amount of the fee to determine whether the amount called for in the fee agreement is either excessive or unreasonable. 38 U.S.C. § 5904©(3).

There are specific factors to be considered in determining whether the fee called for in the fee agreement is reasonable. Those factors include:

(1) The extent and type of services the representative performed;

(2) The complexity of the case;

(3) The level of skill and competence required of the representative in giving the services;

(4) The amount of time the representative spent on the case;

(5) The results the representative achieved, including the amount of any benefits recovered;

(6) The level of review to which the claim was taken and the level of the review at which the representative was retained;

(7) Rates charged by other representatives for similar services; and

(8) Whether, and to what extent, the payment of fees is contingent upon the results achieved. 38 C.F.R. § 14.636(e).

PRESUMPTIONS RELATED TO THE REASONABLENESS OF FEES

There are certain presumptions related to whether the amount of a contingent fee is reasonable. See 38 C.F.R. § 14.636(f).

Fees which do not exceed 20 percent of any past‑due benefits awarded shall be presumed to be reasonable.

Fees which exceed 33 1/3 percent of any past‑due benefits awarded shall be presumed to be unreasonable.

These presumptions may be rebutted through an examination of the factors in 38 C.F.R. § 14.636(e) establishing that there is clear and convincing evidence that a fee which does not exceed 20 percent of any past‑due benefits awarded is not reasonable or that a fee which exceeds 33 1/3 percent is reasonable in a specific circumstance.

[GuaymasJim]

I suggest that you speak with the attorney about the fees. Calmly and politely explain your concerns; and ask him to justify the amount he is actually receiving. If after doing so, you are not satisfied with his response, contact your state's Bar Assn. all of which have an arbitration unit. Peer pressure is a very strong tool!

[Carl the Engineer]

sevensees,

First, I agree with you that you should have waited until the denial before getting the lawyer. Same when filing for SSDI. You first couple of shots at a claim are a crapshoot. Two veterans with the same ailment will get two different results, etc.

Second, I think you may be counting you chickens before they hatch. The C&P examiner can promise you the moon, but when you do get the letter (and the letter is all that matters), you may be unhappy (could be denied) and you may need that lawyer.

Don't burn that bridge, you may need to use it....

And you may find out, 100% of 80% is alot more than 100% of nothing.

Good luck,

Hamslice

[Carl the Engineer]

Again, wait til you get the letter. You are shooting in the dark until then,,,

Hamslice

[sevensees]

I suggest that you speak with the attorney about the fees. Calmly and politely explain your concerns; and ask him to justify the amount he is actually receiving. If after doing so, you are not satisfied with his response, contact your state's Bar Assn. all of which have an arbitration unit. Peer pressure is a very strong tool!

Well I hope it never comes to that, but definately worth keeping in mind.

sevensees,

First, I agree with you that you should have waited until the denial before getting the lawyer. Same when filing for SSDI. You first couple of shots at a claim are a crapshoot. Two veterans with the same ailment will get two different results, etc.

Second, I think you may be counting you chickens before they hatch. The C&P examiner can promise you the moon, but when you do get the letter (and the letter is all that matters), you may be unhappy (could be denied) and you may need that lawyer.

Don't burn that bridge, you may need to use it....

And you may find out, 100% of 80% is alot more than 100% of nothing.

Good luck,

Hamslice

On the first thing, yes it was probably too early. I really thought that the appeal would drag on for a while and that the attorney would be able to step in where it was to do their thing and help with the appeal.

On the second thing, I'm not counting them. If anything, after 10 years, the both of us have learned to be very pessimistic when dealing with this stuff. Its more of an if-then. The reason I posted it is because its very possible, and I need to see before it happens what recourse there is for paying an attorney who had 0 bearing what-so-ever on an appeal.