Kelley: Exclusive Contact No More…Or Not

Douglas L. Kelley v. Eric K. Shinseki, Opinion Number 12-1829, decided May 3, 2013, concerns a writ of mandamus filed by the veteran requesting the VA direct it’s verbal communications toward the veteran’s attorney and not the veteran.

The VA used to allow attorneys to send a written request that all communication be directed toward the attorney.  Many advocates used this to make sure they stayed up to date on the case and also to make sure the veterans they represented did not make accidental admission to the VA that would harm their case.  In November 2012 the VA changed its regulations such that it stopped honoring these requests for exclusive contact.

In this case, the veteran sent an email to the RO regarding his claim and appeared to copy multiple people on the email, including his attorney, legislative staff and the President.  His email appears to have complained about the generally slow pace of decision making.  In response to the email, a RO assistant manager contacted the veteran by telephone to discuss the status of his appeal.  The veteran contacted his attorney with the RO response.

The veteran’s attorney contacted the RO several times about this contact and was told the exclusive contacts policy had been eliminated.  

The veteran filed a writ of mandamus with the Court requesting an order directing the VA to communicate only with counsel because the VA was prohibiting the veteran from benefiting from advice and representation of counsel and interfering with the attorney-client relationship.  

The Court recognized the repeal of the exclusive contact policy and looked at the veteran’s argument, but could not find that the RO had actually interfered with the attorney-client relationship or hindered him from consulting with this counsel.  

Still, the Court waived a flag of caution to the VA.  They stated the “Court is concerned that the new direct contact policy is unlimited in its scope”.  Id. at *11.  The acknowledged possible communication can be ministerial (such as was the case here), but could also extend to communication that would interfere with the attorney-client relationship and the statutory right to counsel.  The Court noted the VA offered no evidence or data demonstrating contact through counsel was slower and noted the new policy could create needless confusion.

Thus, the Court sanctioned the end of the exclusive communication policy, but suggested direct communication might have its limits.  A savvy practitioner will now reference this decision in a letter to the VA regarding client contact,, the savvy veteran will be wary of talking directly to the VA, and hopefully the VA will promulgate new rules that allow ministerial communication as opposed to substantive communication.

Decided by Judges Moorman, Schoelen, and Pietsch.