CAVC: Change in VA communication policy raises issues

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.

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DC Circuit: FOIA request demands a real response

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.

The Freedom of Information Act (FOIA) is one of the most important tools of the news media, government watchdogs, and citizens who care about transparency and government accountability. Anyone can file a FOIA request, describing government records they are seeking, and if the government has the documents described, it must turn them over. This is subject to certain exceptions: for example, if the documents implicate personal privacy of citizens, or national security.

Many government agencies receive a lot of these requests, leading to substantial backlogs and delays in responding. Congress has seen fit, over the years, to try to speed the process up by creating deadlines for the government in the FOIA process. If the government does not meet these deadlines, the requester can take them to court.

For example, when a requester first submits a FOIA request, the government must “determine within 20 [working] days … whether to comply with such request and shall immediately notify the person making such request of such determination and the reasons therefor, and of the right of such person to appeal….” 5 U.S.C. § 552(a)(6)(A)(i). Failing to meet this deadline gives the citizen the right to sue. If the citizen sues, the government agency can also end up on the hook for the requester’s court costs and attorney’s fees, which adds some teeth to the right to sue.

Recently, the Federal Election Commission (FEC), having failed to respond to a request from the government watchdog CREW, tried to get off the hook with a novel legal argument. They argued that, in fact, they had responded to the request, by acknowledging they had received it and would respond with some documents. But in this so-called “response” or “determination,” the FEC had not given any reasons for withholding other documents, and had asserted that their communications were not final decisions that could be appealed; the law, as quoted above, seems to require more.

The FEC managed to persuade the trial court that they had “responded,” and that CREW had no right to sue them. CREW appealed this decision, and the DC Circuit ruled that, indeed, the statute requires more of a response than the FEC gave. Allowing the government to respond with a simple “placeholder” response — that they had received the request and will respond at some point in the future — would create a huge loophole for government agencies to exploit. It would undermine the whole point of having a deadline, and it simply doesn’t satisfy what the law requires.

Now, in fairness, the FEC wasn’t being totally ridiculous or unreasonable. The court did note that they had communicated back and forth with CREW in a reasonable manner soon after the request was submitted, asking if CREW would agree to exclude certain documents, and producing others on a rolling basis. Such collaboration isn’t uncommon between requesters and agencies, and often improves the efficiency of the whole process. In fact, they had finished the process within four months, which, unfortunately, as these things go, is pretty quick (although it’s possible that CREW’s lawsuit, filed in month three, sped things up in this case).

But even if one thinks that the FEC was acting reasonably and in good faith here, that doesn’t change what the law says they have to do. Further, the court always has to think about the impact of their ruling on other cases, and creating a huge loophole on what counts as a response could undermine the FOIA process in many other cases.

The DC Circuit’s important decision re-affirms the right of FOIA requesters to sue when agencies delay giving a clear response about what documents they will produce and why. Most people already assumed that this was the law, but the court’s decision makes it clear, and the rule urged by the FEC would have greatly undermined FOIA’s system of deadlines. The court’s decision, going forward, will protect citizens from undue agency delay when they seek information, and uphold the values of transparency and accountability embodied in FOIA.

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