[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19422-19424]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10031]
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LEGAL SERVICES CORPORATION
45 CFR Part 1638
Restriction on Solicitation
AGENCY: Legal Services Corporation.
ACTION: Final rule.
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SUMMARY: This final rule implements a restriction contained in the
Legal Services Corporation's (``LSC'' or ``Corporation'') FY 1996
appropriations act that is currently incorporated by reference in the
Corporation's FY 1997 appropriations act, which prohibits an LSC
recipient from representing an individual who had not sought legal
advice from the recipient but whom the recipient advised to seek legal
representation or take legal action. In addition to setting out the
prohibition on solicitation, this final rule also provides guidance on
activities that do not fall within the restriction, such as the
representation of clients under a statutory or private ombudsman
program.
DATES: Effective May 21, 1997.
[[Page 19423]]
FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel,
(202) 336-8910.
SUPPLEMENTARY INFORMATION: On May 19, 1996, the Operations and
Regulations Committee (``Committee'') of the LSC Board of Directors
(``Board'') requested the LSC staff to prepare an interim rule to
implement Sec. 504(a)(18), a restriction in the Corporation's FY 1996
appropriations act, Pub. L. 104-134, 110 Stat. 1321 (1996), which
prohibits an LSC recipient from representing an individual who had not
sought legal advice from the recipient but whom the recipient advised
to seek legal representation or take legal action. The Committee held
hearings on staff proposals on July 8 and 19 and the Board adopted an
interim rule on July 20 for publication in the Federal Register. The
interim rule was published on August 29, 1996 (61 FR 45755).
The Corporation received five timely comments on the interim rule,
and the Committee held public hearings to discuss the written comments
and to hear oral comments on December 13, 1996, and January 5, 1997.
The Committee made a few changes to the interim rule and recommended a
final rule to the Board, which adopted the Committee's recommendation
on January 6, 1997, for publication as a final rule.
The Corporation's FY 1997 appropriations act became effective on
October 1, 1996, see Pub. L. 104-208, 110 Stat. 3009 (1996). It
incorporated by reference the Sec. 504 condition on LSC grants included
in the FY 1996 appropriations act implemented by this rule.
Accordingly, the preamble and text of this rule continue to refer to
the appropriate section number of the FY 1996 appropriations act.
Generally, this final rule prohibits LSC recipients and their
employees from representing any individuals to whom they have given in-
person unsolicited advice. It also prohibits recipients and their
employees who have given such advice from referring the person
receiving the advice to another LSC recipient.
A section-by-section discussion of this final rule is provided
below.
Section 1638.1 Purpose
The purpose of this rule is to ensure that recipients do not obtain
clients through in-person unsolicited advice to seek legal
representation or to take legal action.
Section 1638.2 Definitions
This section defines ``in-person'' to include a face-to-face
conversation and other personal contacts, such as a personal letter or
telephone call. While the ordinary meaning of ``in-person'' is limited
to ``face-to-face'' contacts, for the purposes of this part, a personal
letter or phone call from a recipient or a recipient's employee to an
individual advising that individual to obtain counsel or take legal
action would constitute ``in person'' advice.
``Unsolicited advice'' is defined as advice to obtain counsel or
take legal action given by a recipient or employee of a recipient to an
individual with whom the recipient does not have an attorney-client
relationship and who did not seek legal advice or assistance from the
recipient. It does not include advice to obtain counsel or to take
legal action that an individual receives from others, such as social
workers, judges or neighbors.
Section 1638.3 Prohibition
This section prohibits LSC recipients and their employees from
representing any individual to whom they have given in-person
unsolicited advice. It also prohibits recipients and their employees
who have given such advice from referring the person receiving the
advice to another LSC recipient. A recipient may, however, refer a
person who has received unsolicited advice from one of the recipient's
employees to a private attorney who takes the case pro bono, but the
recipient may not count the case toward its private attorney
involvement requirement as set out in 45 CFR part 1614.
Section 1638.4 Permissible Activities
There is a continuing need for community legal education about laws
that affect clients and about the service provided by the program.
Representation of clients resulting from such activities does not
constitute solicitation. This section explicitly notes, therefore, that
it is permissible to represent individuals who seek assistance as a
result of the recipient's participation in community legal education
activities such as outreach activities, public service announcements,
maintaining an ongoing presence in a courthouse to provide advice at
the invitation of the court, disseminating community legal education
publications and presentations to groups that request it. This is true
even if these activities include descriptions of legal rights and
responsibilities, and descriptions of the recipient's services as well
as ways to access the services. An individual who seeks assistance from
the recipient after involvement in one of these activities may be
represented provided that the request for assistance did not result
from in-person unsolicited advice.
Paragraph (c) of this section is new and was added in response to
public comments which urged the Corporation to clarify that the rule
would not prevent representation or referral of clients under certain
ombudsman programs normally undertaken by recipients under grant or
contract. Such programs are intended to provide assistance to certain
vulnerable populations, such as the institutionalized or disabled.
Ombudsmen are persons who are generally charged with investigating
complaints about abuses by government or others, reporting findings to
appropriate officials, and taking actions to bring about remedies or
other equitable results.
An example in one comment described a Georgia program under which
the recipient, acting as an ombudsman, investigates conditions in
nursing homes and personal care homes in Atlanta. Under the program, an
ombudsman responds to complaints by residents and makes unannounced
visits to the homes. When the ombudsman identifies legitimate problems,
the ombudsman is also required by State law and the Federal Older
Americans Act to be an advocate for the residents in trying to
alleviate those conditions. Part of the role as advocate is to advise
residents that they should take legal action and, when necessary, refer
clients to legal counsel. Specific statutory ombudsman programs
referenced in the comments include the Protection and Advocacy for
Individuals with Mental Illness (``PAIMI''), the Protection and
Advocacy for Individual Rights (``PAIR''), the Protection and Advocacy
for Persons with Developmental Disabilities (``PADD''), and the
ombudsman program under the Older Americans Act.
The Board agreed with the comments and this final rule is revised
to include a provision that clarifies that the prohibition in this rule
does not apply to Federal and State statutory or private ombudsman
programs. The purpose of Sec. 504(a)(18) is to prevent recipients from
soliciting clients by requiring that clients initiate the legal
assistance. According to the legislative history of this provision,
Congress determined that it is inappropriate for Federally funded legal
aid offices to solicit clients at a time when programs continue to turn
away clients due to lack of resources. The ombudsman programs are
created by Congress and the States to provide aid and protection to
certain vulnerable populations, whose members, because of disabilities
or fear of repercussions,
[[Page 19424]]
are unable to seek the assistance they need. Under grants or contracts,
LSC recipients might be expected to investigate, report and provide
referral or legal assistance to these vulnerable people. Reading the
restriction on solicitation together with the State and other Federal
statutes establishing ombudsman programs, the Corporation believes that
Congress intends Sec. 504 to prohibit legal services programs from
soliciting clients who are otherwise able to independently seek legal
aid, but does not intend Sec. 504 to prohibit assistance to those
served by Federal and State statutory or private ombudsman programs for
individuals who are unable to seek independently the legal and other
care that they need.
Section 1638.5 Recipient Policies
This section requires that recipients establish written policies to
implement the requirements of this part.
List of Subjects in 45 CFR Part 1638
Grant programs; Legal services; Solicitation.
For reasons set forth in the preamble, 45 CFR Part 1638 is revised
as follows:
PART 1638--RESTRICTION ON SOLICITATION
Sec.
1638.1 Purpose.
1638.2 Definitions.
1638.3 Prohibition.
1638.4 Permissible activities.
1638.5 Recipient policies.
Authority: Sec. 504(a)(18), Pub. L. 104-208, 110 Stat. 3009;
Pub. L. 104-134, 110 Stat. 1321.
Sec. 1638.1 Purpose.
This part is designed to ensure that recipients and their employees
do not solicit clients.
Sec. 1638.2 Definitions.
(a) In-person means a face-to-face encounter or a personal
encounter via other means of communication such as a personal letter or
telephone call.
(b) Unsolicited advice means advice to obtain counsel or take legal
action given by a recipient or its employee to an individual who did
not seek the advice and with whom the recipient does not have an
attorney-client relationship.
Sec. 1638.3 Prohibition.
(a) Recipients and their employees are prohibited from representing
a client as a result of in-person unsolicited advice.
(b) Recipients and their employees are also prohibited from
referring to other recipients individuals to whom they have given in-
person unsolicited advice.
Sec. 1638.4 Permissible activities.
(a) This part does not prohibit recipients or their employees from
providing information regarding legal rights and responsibilities or
providing information regarding the recipient's services and intake
procedures through community legal education activities such as
outreach, public service announcements, maintaining an ongoing presence
in a courthouse to provide advice at the invitation of the court,
disseminating community legal education publications, and giving
presentations to groups that request them.
(b) A recipient may represent an otherwise eligible individual
seeking legal assistance from the recipient as a result of information
provided as described in Sec. 1638.4(a), provided that the request has
not resulted from in-person unsolicited advice.
(c) This part does not prohibit representation or referral of
clients by recipients pursuant to a statutory or private ombudsman
program that provides investigatory and referral services and/or legal
assistance on behalf of persons who are unable to seek assistance on
their own, including those who are institutionalized or are physically
or mentally disabled.
Sec. 1638.5 Recipient policies.
Each recipient shall adopt written policies to implement the
requirements of this part.
Dated: April 14, 1997.
Victor M. Fortuno,
General Counsel.
[FR Doc. 97-10031 Filed 4-18-97; 8:45 am]
BILLING CODE 7050-01-P
