AM62 - Comment - Maria L. Imperial

Re: RIN 2900-AM62 -- Accreditation of Agents and Attorneys; Agent and Attorney Fees To Whom It May Concern: As the Executive Director of the City Bar Justice Center ("Justice Center"), the pro bono affiliate of The Association of the Bar of the City of New York, one of the nation's oldest and largest bar associations, I am grateful to the Department of Veterans Affairs (VA) for the opportunity to comment on the proposed rules regarding accreditation of agents and attorneys and agent and attorney fees (collectively, the "Proposed Rules"). The mission of the Justice Center is to increase access to justice by leveraging the resources of the private bar. We operate a number of pro bono legal projects in different areas of law and are considering expanding our work to veterans' appeals. Our model consists of screening cases for eligibility, conducting intake and assigning cases to volunteer attorneys who are trained and supervised by the Justice Center. A volunteer must undergo a rigorous training program before a case is assigned to him or her. Last year, we leveraged nearly 40,000 hours in pro bono legal services. The Justice Center recognizes and appreciates that the Proposed Rules seek to increase veterans' access to justice by establishing the "procedures and rules necessary for the VA to facilitate the paid representation of claimants by accredited agents and attorneys" (emphasis added). Prior federal law, 38 U.S.C. 5904, prohibited a veteran seeking any veterans benefits from paying an attorney to represent him or her in proceedings before the VA at any time before the matter has been decided both at the Departmental level and at the first level of appeal at the Board of Veterans' Appeals. The fee limitation had even been enforced with criminal penalties and, as a result, veterans either proceeded pro se or with pro bono assistance. As the stated intent of the Proposed Rules is to facilitate the paid representation of veterans, the Justice Center assumes that they are not meant to apply to pro bono attorneys. In fact, Proposed Section 14.630, Authorization for a Particular Claim, allows "the VA to recognize any individual for purposes of providing representation on one claim, provided that the individual certifies that he or she will not charge a fee for the representation and files the appropriate power of attorney." This provision seems to acknowledge the difference between an lawyer providing occasional pro bono representation to a veteran and a lawyer who devotes part of his or her regular legal practice to handling such cases. As a practical matter, the Justice Center seeks to train and utilize volunteers so that they can handle a few cases, so that more veterans can receive assistance and we can better utilize limited volunteer and training resources. Only by using pro bono lawyers for more than one case can the program provide a meaningful level of assistance to needy veterans. It seems counterintuitive for the VA to distinguish between a pro bono attorney who helps a veteran with one claim, and one who provides pro bono assistance to two or three [or do you want to say ?several?] veterans. The Justice Center fears that the application of the accreditation requirements contained within 38 C.F.R. Section 14.629, Accreditation of Agents and Attorneys, will jeopardize our ability to recruit and use volunteer attorneys and therefore will cut off many middle and low income veterans' access to justice. While we are confident that the VA does not seek to curtail or place limitations on the continued pro bono representation of veterans, pro bono representation of veterans needs to be protected and nurtured and not further restricted. In order to avoid discouraging attorneys from continuing to handle veterans? appeals on a pro bono basis, we respectfully request that you clarify that the Proposed Rules do not apply to pro bono attorneys. An analogy could be drawn with the Bankruptcy Abuse Prevention and Consumer protection Act of 2005 (BAPCA), which seeks to regulate the conduct of debtor's attorneys. Section 101(12A) of BAPCA defined a "debt relief agency" as any person who provides any bankruptcy assistance to an assisted person in return for the payment of money or other valuable consideration. However, subsection B of that provision excludes from that definition ?a nonprofit organization that is exempt from taxation under section 501 (c)(3) of the Internal Revenue Code of 1986.? The bankruptcy law makes clear that the regulations only apply to "debt relief agencies" and clarifies that attorneys affiliated with 501 (c)(3) organizations or pro bono attorneys do not fall within the definition of debt relief agencies. We note that the VA has the authority to adopt a similar approach in its revised rules and urge that it do so. Thank you for your time and consideration of this important matter. Very truly yours, Maria L. Imperial The Department of Veterans Affairs (VA) proposes to amend its regulations governing the representation of claimants for veterans benefits in order to implement provisions of the Veterans Benefits, Health Care, and Information Technology Act of 2006, and to reorganize and clarify existing regulations. The proposed regulations would establish the procedures and rules necessary for VA to facilitate the paid representation of claimants by accredited agents and attorneys after a notice of disagreement has been filed with respect to a case. The intended effect of these regulations is to fulfill Congress' direction that agents and attorneys may be paid for services rendered after a notice of disagreement is filed with respect to a decision by an agency of original jurisdiction while ensuring that claimants for veterans benefits have responsible qualified representation in the preparation, presentation, and prosecution of claims for veterans benefits.