Cornell: Attorney Fees Earned?

Cornell v. McDonald, Opinion Number 15-3191, decided December 12, 2016 involves a dispute over whether an attorney earned a fee related to a claim.

Cornell represented the veteran on a claim for hearing loss which resulted in a favorable result in 2011.  After the favorable result, the attorney wrote a letter to the veteran closing her file.  Six months later, the veteran, with the assistance of a VSO applied for individual unemployability.  The IU claim was granted with an effective date going back to the initial favorable result in 2011.  The VA withheld the attorney fee from the veteran’s award and paid it over to the attorney.  Five months later, the veteran appeared to have filed a notice of disagreement and the VA attempted to claw back the fee as unearned.

On appeal, the attorney admitted she never presented a claim, argument, or evidence for individual unemployabilty, that she overlooked the possibility of an IU claim, and that she closed her file after the initial favorable decision.  But, the attorney argued that the IU award was premised on her earlier favorable result, used the same effective date, and that the delay in the VA trying to claw back the money (5 months after it was paid to her, which would have been 8-10 months after the veteran found out about the result) all supported finding the award was appropriate.

The Court found she did not contribute to the award and thus did not earn it.

I can’t help but feel the result was correct.  The attorney did not meaningfully contribute to the IU claim.  However, her brief makes clear she only accepted a fee the VA initially determined she was owed.  And, that the challenge to the fee was very delayed (through the negligence of the VA); the result being that a fee she might have used to keep her practice open and help more veterans was taken away from her.  This is a hard case to see any true winners in.  Perhaps the real lesson is the always remember to get in evidence and argument about a claim for individual unemployability.  

Written by Chief Judge Davis and joined in by Judges Kasold and Lance.