When Congress awarded pensions to veterans after the Civil War, some unscrupulous attorneys succeeded in bilking their clients out of much of that pension money they had coming to them.
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At least, that's how history records it. One can hear the attorneys even now, slamming down their carpetbags and arguing, "Bilked? Bilked? It says right in the contract, 'plus costs.' "
Regardless, to make sure the bulk of the pension funds went to the actual veteran designated, Congress imposed a limit -- first of $5, then $10 -- on what lawyers could receive for assisting a veteran.
That lasted until 1988, when Congress removed the $10 ceiling and created an independent Court of Appeals for Veterans Claims. Veterans can now seek legal representation when their cases reach the court, but are still prohibited from paying a lawyer for services until the Veterans Affairs board of appeals makes a decision on their claim, a process that can take years.
The real-world effect of all this is that lawyers, to this day, are seldom involved in helping veterans resolve disputes before the VA.
Instead, the veterans often take advantage of free representation offered by such groups as the American Legion. And while those representatives are usually not lawyers, the VA system "is a very unique animal in administrative law" and attorneys would not necessarily be more effective than the Legion's experienced agents in dealing with it, argues Steve Smithson, deputy director for claims services for the American Legion.
The current restriction is "a museum piece that should have been gotten rid of a long time ago," argues Eugene R. Fidell, who teaches military law at American University's Washington College of Law. Mr. Fidell says he knows of "no other situation where litigants can't pay a reasonable fee to their attorneys."
It would be interesting to poll any assembly of law school professors to ascertain what they believe would constitute an "unreasonable" attorney's fee. But in this case -- for once -- the brethren of the bar have it right.
"The bureaucracy of 2006 is a maze," explains Sen. Lindsey Graham, R-S.C., who, with Veterans Affairs Committee Chairman Larry Craig, R-Idaho, is co-sponsoring a bill that would allow veterans to hire lawyers to represent them. "The reality is that the laws are complex, and I want veterans to have the option" of hiring a lawyer."
Shelley Berkley, D-Nev., a member of the House Veterans Affairs Committee and also a co-sponsor, says she expects the service organizations would continue to represent most claimants.
"Nonetheless," she says, "we believe that in this day and age, veterans should not be prohibited from hiring an attorney if they choose to do so."
Technically, the Sixth Amendment's right to "assistance of counsel" applies only to criminal prosecutions. And it's to be regretted that Congress doesn't respond to a VA bureaucracy now acknowledged to have become "a maze" simply by getting out their hedge trimmers.
It will also be interesting to see whether opening the floodgates to the legal fraternity will render justice in such cases prompter and less expensive. (We won't hold our breaths.)
But by the time a veteran is involved in haggling with the VA about his or her benefits, the beneficiary is in many cases elderly, infirm and all the more in need of experienced guidance. They should have the right to hire an attorney if they want one.
House Bill 4914 and the companion Senate Bill 2694 are well worth enacting.
