The Oklahoma Bar Journal February 2025

from potential abuses. The concept of reasonable fees, along with VA oversight, helps protect veterans while ensuring that accredited rep resentatives are fairly compensated for their services. DISCIPLINARY MEASURES AND ENFORCEMENT To maintain the integrity of the ADF program, 38 U.S.C. §5903 provides the VA with the authority to take disciplinary action against accredited representatives who fail to meet the established standards of conduct or who engage in unethi cal behavior. More specifically, 38 U.S.C. §5904 and 38 C.F.R. §14.633 give the VA the authority to take disciplinary measures, includ ing suspension and revocation of accreditation, depending on the severity of the violation. The types of violations that may lead to suspension or revocation of accred itation can encompass a wide range of unethical behaviors, including misrepresentation of qualifications, filing fraudulent claims, failure to provide adequate or competent rep resentation, failure to act in the best interests of veterans and conflicts of interest. For example, if an accred ited representative knowingly submits false information to the VA on behalf of a veteran, it may harm the veteran’s chances of receiving the benefits they deserve and, in turn, undermines the integrity of the ADF program. While serving as a deterrent against misconduct, the statutory framework reinforces the expectation of high ethical stan dards within the ADF program. The regulatory framework out lines the procedures for investigat ing allegations of misconduct and the rights of accredited represen tatives facing disciplinary action. 18 The disciplinary procedures are

awarded on a claim shall be pre sumed to be reasonable, 11 whereas a fee that exceeds 33.33% of the past due benefits creates a rebuttable pre sumption that is unreasonable. 12 Thus, the driving principle in ensuring veterans receive fair treatment when seeking assistance with their claims is the “reason ableness” of the fee being charged. Reasonableness turns, in part, on the complexity of the case and the level of service provided. 13 This flexibility allows fees to be tailored to the unique circumstances of each veteran’s case. For example, higher fees may be warranted in those cases involving multiple claims, appeals or the need for expert testimony, given the time and expertise required. However, a straightforward claim may warrant a lower fee. 14 In addition, accredited representatives who offer a higher level of service – such as thorough case evaluations, individual consulta tions and ongoing support through out the claims process – may warrant charging higher fees than those who provide more basic assistance. 15 Accredited representatives must provide a clear breakdown of their fees and services, which further reinforces transparency. 16 This transparency helps foster trust between veterans and their accredited representatives by eliminating unexpected costs or hidden charges. The VA also has the authority to review and approve fee agreements, 17 either on its own motion or on the veteran’s motion, which provides additional oversight of fee agreements and compensation within the ADF program. By reviewing fee agree ments, the VA is able to intervene if they identify concerns regarding the reasonableness of the fees being charged and to protect veterans

FEES AND COMPENSATION Another important element of the ADF program relates to the fees that accredited representa tives may charge for their services. Accredited representatives are allowed to charge fees for services provided in connection with claims for benefits as long as such fees are reasonable and disclosed to the veteran in advance. Specifically, an accredited representative may only charge claimants a fee after an agency of original jurisdiction ( e.g. , a VA regional office) has issued an initial decision on a claim and the attorney or claims agent has filed a power of attorney and a fee agree ment with the VA. 8 This provision establishes a framework for com pensation while also safeguarding veterans from potential exploita tion. Two types of fee agreements can be filed with the VA: representative agree that the fee is to be paid to the accredited representative by the VA directly from any past-due benefits awarded to the claimant. Nondirect payment: The Direct payment : The claim ant and the accredited

accredited representative is responsible for collecting any fee for representation from the claimant without assistance from the VA. 9

While the law does not specify the amounts accredited represen tatives may charge, it does provide that fees may be charged based on a fixed amount, an hourly rate, a percentage of past-due benefits recovered or a combination of such bases, and the fees must be reasonable . 10 A fee that does not exceed 20% of the past-due amount of benefits

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

FEBRUARY 2025 | 9

THE OKLAHOMA BAR JOURNAL