Note: This was posted to my old site earlier this year; I was able to recover a draft. I am posting it for posterity; the date stamp is an estimate only.
When you hire a lawyer, one of the benefits is that you don’t have to face your opponent alone — communications go through your lawyer instead. It’s actually unethical for a lawyer to communicate directly with the opposing party if that person is represented by counsel. Part of the logic is that the other side might try to take advantage of you, undermining your lawyer or intimidating you to do or say something against your interests if your lawyer isn’t around to defend you or inform you of your rights. Also, you hired a lawyer for a reason — you shouldn’t have to deal with this stuff all the time. Whatever the reasons for it, this is a rule that is deeply ingrained in the legal profession.
So I was surprised to learn that the Department of Veterans Affairs had recently changed its policy about communicating with veterans who are represented by lawyers in claims against the VA. Under the new policy, the VA asserts the right to communicate directly with veterans who have retained counsel, even without counsel’s consent or knowledge. Under the previous policy, the VA honored the attorney-client relationship by only communicating with the attorney.
The Court of Appeals for Veterans Claims had an opportunity to review and comment on the change in policy in a recent case, Kelley v. Shinseki. The case came before the court because (no surprise) the VA started to implement this policy: they communicated with a represented veteran. In a telephone conversation, a VA staff member reportedly told the veteran directly, without informing his lawyer, that they had his claim file, were working on it, and would be in touch. The veteran’s lawyer contacted the VA and asked that they stop communicating with her client directly, and instead communicate directly with her. The VA replied, sorry, we’ve changed our policy, and we can talk to your client if we want to.
Understandably, the lawyer did not like this answer, and filed an appeal with the CAVC (technically, an “extraordinary writ of mandamus”), requesting that they order the VA to follow its old policy. The court ultimately did not issue such an order.
In its opinion, the court made it clear that this wasn’t the strongest case. The communication in this case was about what the court termed “ministerial” matters. In other words, the VA was simply telling the veteran about the status of things — we have your file, we’re looking for a certain document, we’re working on it, etc.
For my part, I think even this is troublesome, as the lawyer is expected to keep track of all these matters, and may not always be able to get the full story later if the client, for example, misses some of the details. But it wasn’t clear to the court that this sort of communication would undermine the attorney-client relationship; it did not, in the eyes of the court, justify the “extraordinary” relief requested. But even in denying the order, the court made it clear that the VA was walking on very thin ice with its new policy. The court called the policy “open-ended.” In essence, the VA claimed the right to communicate with the veteran about anything for any reason, and there was no qualification in the new policy limiting it to “ministerial” matters that the court said it was okay to tell the veteran about.
The court also warned that if the VA actually communicated with a veteran about “more-than-ministerial matters,” it could “cross[] the line and violate[] a claimant’s statutory right to counsel.” It also questioned the VA’s reasoning that communicating directly with a veteran would be more efficient. Bypassing the attorney in many cases may actually be way more inefficient; the attorney may be able to give a direct answer to a VA question, but the client may want to speak to the attorney before answering.
I would also add, as I noted above, that confusion and miscommunication are real possibilities when you cut the attorney out of the loop. Also, the court did not go into this, but as I see things, the VA’s new policy only applies to non-lawyer staff members at the VA. Any lawyer representative of the VA would be bound by the rules of professional conduct, no matter what VA policy is. And the rules governing lawyers plainly forbid any kind of communication with a represented party about the case; a lawyer who does communicate with a represented adverse party risks disciplinary action from the Bar. So if the VA persists in trying this new policy (or some variant of it), the VA would be effectively bound by two sets of rules — one for its lawyer staff, and one for its non-lawyer staff. I’m not sure about how they operate and what kinds of safeguards are in place, but to the extent that the VA’ s new policy might cause it to stop paying attention to who is or isn’t represented on an agency-wide basis, this could be putting the agency’s lawyers at risk of violating their professional obligations.
So, although the VA “won” this case, the court’s order should make them rethink the wisdom of their new policy. At the very least, they need to limit the policy to “ministerial matters” — a fuzzy line to draw sometimes. They also do need to continue to keep track of which veterans are represented anyway, for the sake of the agency’s lawyers. I also think the new policy also undermines veterans’ right to counsel and the value of having counsel, which just isn’t right — veterans should be treated like anyone else who has hired a lawyer, and I see no good reason for the VA to play by a different set of rules. Ultimately, the new policy just seems to be more trouble than it’s worth. The VA would be smart to scrap it.
