As many veterans are discovering, the State of New Jersey passed a new law aimed at preventing unaccredited representatives from representing veterans for a fee in New Jersey. Let’s look at what this means for veterans looking for help with their claims, and how the New Jersey Law Veteran’s Guardian, and other services, are impacting veterans’ choice of representation.
Who can represent veterans in New Jersey?
The New Jersey law seeks to make it a violation for anyone to represent veterans in a way that is inconsistent with federal law. The Federal Statute and Regulations specify that only “accredited” attorneys and agents, authorized by the Department of Veterans Affairs, can charge fees for work done to assist veterans. The Federal statutes also state that, under the Appeals Modernization Act, fees may only be charged for work after the VA has issued an initial decision on the claim. Under the New Jersey Law Veteran’s Guardian is impacted in that they can’t help on initial claims, or in fact, at any time before a Notice of Disagreement is filed.
How does that impact companies that are not accredited?
At the federal level, Congress and the VA did not impose any penalties for businesses that are unaccredited and provide services to veterans for a fee. Many of these services distinguish their offerings by noting that they are not directly representing a veteran before the Department of Veterans Affairs but instead offer “self help” tools and ways to prepare a veteran to present their case. They generally charge a fee based on a multiple of any increase received by the veteran, rather than a percentage of retroactive benefits or a flat or hourly fee, as most accredited representatives are limited to receive. With the New Jersey Law Veteran’s Guardian, businesses are barred from offering these services, which may not help veterans who are looking for options in their representation.
Because there are no penalties, and because these organizations are not otherwise regulated, there is a push in state legislatures to place limits on the abilities of these companies to operate.
Currently, at least one of these companies is challenging the New Jersey law in Court, arguing that it is a violation of First Amendment protections.
Is the law good or bad?
There are two ways of thinking about the law, and the intent. First, it could be seen as a good thing, protecting veterans from services that might be unnecessary, or don’t offer the value that a fee of 4-6x the monthly value of an increase might warrant. The VA’s rules for accredited attorneys and agents have strict guidelines on reasonable fees and a process to review those fees against the results in a claim.
On the other hand, laws like this could be viewed as paternalistic, giving veterans little credit for making decisions in their own best interest. In other words – is it good or bad to legislate away options for veterans trying to decide what type of help they want and what they want to pay for that help? There’s definitely a public good in avoiding predatory behavior, but too often these efforts swing too far to discourage attorneys, and non-attorney representatives from undertaking the many hours of work needed to help in a challenging area of the law.
For example, the ban at the federal and state level of any veteran obtaining any paid help to file an initial claim comes from the idea that the VA should get a first bite at the apple, without the veteran having to spend any money in fees, as the VA might “get it right” and award the claim on the first shot. That’s absolutely true, but the inverse is also reasonable: Some veterans may struggle gathering the medical and factual support to get a claim in the right way the first time, and lose valuable time having to appeal. If someone charged a fee to help on an initial claim and succeeded in getting the benefit sought, the fee would likely be lower than it would if they were only allowed to get involved once an appeal needs to be filed and more time has passed. Maybe a veteran would want to pay 500 – 1500 in a one-time flat fee for access to resources in developing a VA nexus letter, draft forms, advice on completing paperwork, and other materials to offer a better shot at an initial win. There are Veterans Service Organizations that offer free assistance, but those organizations (chartered by and sharing office space with the VA itself) may have representatives that see their role as gatekeepers rather than direct advocates. One huge benefit to paying an attorney a contingent fee is that you know from day one, that attorney is aligned to the same outcome you seek: the highest possible benefit as far back as possible. Not so with free services.
New Jersey Law Veteran’s Guardian and Accredited Attorney’s Next Steps:
There’s no easy answer on this. As a law firm that employs accredited attorneys to assist veterans consistent with the VA’s regulations and statutes, we’ll always play by the rules. We don’t believe the new state law targets duly accredited attorneys, and so we believe we can still represent veterans in the state as long as we are consistent with federal mandates. That said, there are many who believe nobody should ever be paid a fee for helping veterans in any way, and downplay the value and the choice in electing to hire an attorney to do the work to win a case. No doubt more laws will be advocated to further remove that choice for veterans.
I believe that veterans shouldn’t have to decide if a service is a scam, but, beyond that, most veterans I’ve met are quite aware of free services available, and they know when it’s time to “get what you paid for” with a private rep. Under the New Jersey Law Veteran’s Guardian these private reps, or any other services like them, are barred from helping veterans. It’s not clear that veterans need the government to act as a parent to help vets make the right calls. Veterans should be given the freedom and respect to choose the type of representation that’s right for them.
We’ll continue following the challenge to this law. In the meantime, we are ready to jump in on any cases left in the wind by the new law impacting veterans benefits in New Jersey.
Rich Frankel is the managing partner of Bross & Frankel. He is a member of the New Jersey and Pennsylvania bars. He has focused exclusively on disability and social security benefits since 2005.
Mr. Frankel joined what is now Bross & Frankel after having watched his father struggle with disability, fighting a lengthy illness. Mr. Frankel founded the firm’s veteran’s law practice and substantially grew the social security disability practice, focusing Bross & Frankel’s ability to fight for all of the disability benefits available to his clients.
Mr. Frankel additionally fights for clients in court, obtaining frequent victories in Social Security appeals and against insurance companies in Federal court.