[Federal Register Volume 59, Number 115 (Thursday, June 16, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-14566]
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[Federal Register: June 16, 1994]
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LEGAL SERVICES CORPORATION
45 CFR Part 1607
Governing Bodies
AGENCY: Legal Services Corporation.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This proposed regulation would amend the Legal Services
Corporation's (``LSC'' or ``Corporation'') regulations, relating to
governing bodies of recipients of LSC funds. Many of the revisions are
simply intended to clarify current Corporation policy or to interrelate
this part to other LSC regulations. However, a number of the proposed
revisions represent changes in Corporation policy or interpretations
with respect to issues that arise under the regulation. The proposal
also includes a number of technical revisions to make the rule easier
to apply and use.
DATES: Comments should be received by August 15, 1994.
ADDRESSES: Comments should be submitted to the Office of the General
Counsel, Legal Services Corporation, 750 First Street, NE., 11th Floor,
Washington, DC 20002-4250.
FOR FURTHER INFORMATION CONTACT: Victor Fortuno, General Counsel,
Office of the General Counsel (202) 336-8810.
SUPPLEMENTARY INFORMATION: The Operations and Regulations Committee of
the LSC Board of Directors (``Committee'') held public hearings on
April 15, 1994, in Washington, DC and on May 13, 1994, in Atlanta,
Georgia, to consider drafts of proposed revisions to 45 CFR part 1607,
LSC's regulation on recipient governing bodies. At the meeting in
Atlanta, the Committee approved a draft to be published in the Federal
Register as a proposed rule for public comment.
The Corporation is extending the customary 30-day comment period to
60 days in order to allow bar associations and other organizations with
a specific interest in this rule sufficient time to comment. Bar
associations play a substantial role in the appointment of recipient
board members, and the Committee encourages their involvement in this
rulemaking process.
The Committee recognizes that reauthorization of the Corporation is
presently under consideration by Congress. Whenever Congress does
reauthorize the Corporation, the Corporation's regulations will be
revisited and revised accordingly.
This proposed rule is intended to amend 45 CFR part 1607 and to
supersede part 1607's interpretive guideline published at 48 FR 36820
(August 15, 1983).
Section 1607.1 Purpose
No change is proposed for this section.
Section 1607.2 Definitions
Most of the changes proposed for this section are technical and
clarifying in nature. The section was reordered to put the definitions
in alphabetical order. Also, definitions found in other parts of the
regulations, but applicable to this part are included here for easier
reference. In addition, language found in other sections of this part
that, in fact, constitute definitions of terms are included here both
for easier reference and to treat similar terms similarly. Some of the
language has been clarified to make it consistent with past and current
LSC interpretations.
Section 1607.2(a). The definition of attorney member was added to
make it clear that national support center board members do not have to
be admitted to practice in a state where the center actually provides
legal assistance.
Section 1607.2(c). The definition of eligible client member has
been changed in two principal ways. First, the language has been
revised to make it clear that client board members must be eligible at
the time of their appointment to each term of office. Thus, a client
member who is financially eligible for services when first appointed to
a recipient's board may not be reappointed to a second or subsequent
term if, at the time of reappointment, the client board member is no
longer financially eligible for LSC-funded services. However, nothing
in the rule would require a client board member to resign during the
course of a term if the client became ineligible subsequent to
appointment. Second, language was added to deal with two additional,
distinct issues. The proposed rule now makes it clear that the
recipient should decide how client board member eligibility is
determined. The proposed rule also makes it clear that the recipient
should decide whether it or a particular group should make the
determination, and that the recipient could decide, for some groups,
the recipient will make the determination and for others it will leave
the determination up to the appointing group.
The Committee considered and decided not to expand the definition
of eligible client member to include individuals who are eligible for
non-LSC-funded services provided by the recipient, because it wished to
insure that the focus of the legal services program remains on the poor
community.
Section 1607.2(d). The proposal revises the definition of governing
body to clarify that, in addition to the governing bodies of recipients
who have as a primary purpose the provision of legal assistance to
eligible clients, it also applies to the governing bodies or policy
boards created pursuant to Sec. 1607.6(e).
Section 1607.2(e). This definition of recipient appears in 45 CFR
part 1600, but is repeated here for clarity in interpreting this part.
Section 1607.3 Composition
Section 1607.3(a). The proposal includes general language,
applicable to all categories of board membership, that requires board
members to be supportive of the purposes of the LSC Act, and to be
interested in and knowledgeable about the delivery of quality legal
services to the poor. The current regulation does not include any
similar requirement for client board members, but does include similar,
although not identical, requirements for attorney and ``other'' board
members. The proposal removes the reference to the board reflecting
``the characteristics'' of the client community, in part because it is
not clear what that language means and in part because it could be
construed to be inconsistent with diversity requirements that are
included later in the rule for each category of board membership.
Section 1607.3(b). With respect to attorney board members, the
proposal revises the language of the rule that is based on the
requirements of the McCollum Amendment, which require a majority of the
board members to be appointed by state, county and municipal bar
associations. The revision clarifies that the appointments can be made
by one or more such bar associations, so long as those bar associations
collectively represent a majority of attorneys practicing law in the
recipient's service area. If there are minority or gender-based bar
associations that represent attorneys practicing in a particular
locality, those bar associations may be included in the mix of bar
associations that make appointments of attorneys to a recipient's
board, especially if their inclusion would help to insure that there is
appropriate diversity among the attorney members of the board. In
addition, although the rule, consistent with the language of the
McCollum Amendment, states that the appointments are to be made by the
``governing bodies'' of the bar associations, the Committee recognizes
that different bar associations should be free to exercise their
appointment responsibility in a manner consistent with their own
policies, procedures and practices. The McCollum Amendment does not
direct LSC to impose any particular method of appointment on a bar
association.
The proposed rule also adds language which is based on part of the
McCollum amendment that makes it clear that national support centers
are not required to use the American Bar Association (``ABA'') or a
collection of all state bars to appoint their attorney members, simply
because they provide service nationally. The proposed rule also
recognizes that some recipients, especially Native-American or migrant
programs, may have offices in one state, but also provide services in
one or more adjacent or nearby states. The language is intended to
permit those programs, if they so decide, to have the bar associations
of the other states in which they provide service make appointments as
well as the bar of the state in which their principal office is
located.
In addition, the proposed rule explicitly states what is implicit
in the language of the current regulation, i.e., that the additional
ten percent of the board members who must be attorneys, but who are not
covered by the McCollum amendment, may be selected by the recipient's
governing body, if it so chooses. The proposed rule does change current
law with respect to the additional ten percent of attorney board
members in one respect, however. Under the current regulation, the
additional attorneys must be representatives of bar associations or
other legal organizations, e.g., law schools. This requirement is not
contained in the LSC Act. Under the proposed regulation, the recipient
may select attorneys who are not representatives of any particular bar
or legal organization, or may select attorneys who are affiliated with
non-legal organizations, as long as they are admitted to practice in a
state within the recipient's service area, and as long as the
organization has an interest in the delivery of legal services to the
poor. Thus, the recipient would be able to select lawyers who represent
the business community or the United Way and may be helpful in
fundraising, or lawyers who provide substantial pro bono services to
the client community and may be helpful in designing a recipient's
private attorney involvement program.
Finally, the proposed regulation revises and relocates the section
that relates to diversity among attorney board members. This provision
is a variation of the language previously found in Sec. 1607.3(c). It
is revised to incorporate a more current statement of the concerns
addressed by that subsection, but no substantive change is intended.
While the language of the proposed rule specifically mentions race,
ethnicity and gender, it also includes a reference to other factors
that may be relevant in a particular legal community and population of
the area served by the recipient, including, for example, age, physical
abilities and religious belief.
Section 1607.3(c). The proposal includes a number of changes in the
language that relates to client board members. The principal revision
addresses an issue that has remained ambiguous under the language of
the current regulation and has caused problems for some LSC recipients.
The proposed revision would codify the current LSC interpretation of
the language to require that client board members be selected by client
groups that have been designated by the recipient. This proposal also
adds language that more accurately reflects the kind of groups or
organizations that would be appropriate client groups for purposes of
eligible client member selection. In addition, the proposal adds a
diversity goal for client board members that is similar to the
requirement for attorney board members.
Section 1607.3(d). With respect to the ``other'' board members,
i.e., those that are neither attorney members nor eligible client
members, the proposal makes it clear that recipient boards are
permitted to fill the remaining ``other'' slots. This gives recipients
flexibility to include board members who can help them with
fundraising, community relations, coordination with other social
service providers, or any other locally identified need. Law school
professors who cannot count as ``attorney members'' because they are
not admitted to practice in a state within the recipient's service
area, could be selected for this category of membership. Although there
is no comparable language in the current regulation, this provision is
consistent with longstanding LSC interpretations. In addition, the
proposal includes language that makes it clear that ``other'' board
members should be selected with the goals of diversity in mind.
Section 1607.3(e). This proposal adds language to the
``domination'' provision in the current regulation to make it clear
that the provision was not intended to prevent recipients from
designating a single regional or statewide client council as the
appointing organization for client board members, so long as that
client council represents numerous smaller client groups.
Section 1607.3(f). The proposal deletes language which could be
incorrectly interpreted to give LSC authority to veto particular
methods of selecting local board members. In addition, the proposal
states affirmatively that recipients may recommend names to and consult
with bar associations and other appointing groups to insure that
appropriate appointments are made. This revision recognizes that bar
associations or other groups may request information on who would make
a good legal services program board member and may rely on input from
the recipients in making the appointments.
Section 1607.3(g). The proposed rule includes a new provision that
is intended to establish standards for dealing with recipient board
vacancies. It establishes a standard of reasonable and good faith
efforts to insure that governing body vacancies are filled promptly,
but recognizes that recipients often have no control over the
appointment process other than to change the groups that they have
designated to make the appointments if a particular group fails to make
an appointment in a timely manner. In order to avoid the creation of
vacancies, recipients, through their own by-laws or board policies,
could take a number of actions when appointing organizations are slow
in making appointments, refuse to make them, or are unable to make them
for whatever reason. For example, a recipient's board could permit its
members to hold over until replacements are appointed, or could make
short-term interim appointments, if necessary, until regular
appointments can be made.
Section 1607.3(h). The proposed regulation includes a new provision
that grants the recipient the authority to reject an appointment of a
board member when the recipient determines that the person who has been
appointed does not meet the criteria set out in the regulation,
including financial eligibility for client board members, or where the
person appointed has a significant individual or institutional conflict
of interest with the recipient or its client community. The ABA's
Standards for Providers of Legal Services to the Poor states, in
Standard 7.2-5, that ``governing body members should not knowingly
attempt to influence any decisions in which they have a conflict of
interest with provider clients'' and Standard 7.2-6 states that
``members should not be selected by * * * any institution or agency
which is in conflict with the provider or its clients.'' The Commentary
to those standards contains discussions of both institutional and
individual conflicts of interest and suggests that when such conflicts
arise with respect to a sitting board member, the member and the
recipient should be guided by laws of the jurisdiction regarding
disclosure and recusal. While the Standards state an absolute rule
prohibiting appointments by institutions or agencies that have a
conflict with the recipient or its clients (e.g. a welfare department
or county attorney's office should not make appointments to a
recipient's board), they also note that:
If a person is employed by or is otherwise significantly
connected with an institution that is in conflict with the
provider's clients, generally that person should not serve on the
governing body. That person may serve, however, if there is evidence
* * * that the particular individual is not in actual conflict * *
*.
Thus, the question of whether it is appropriate for government
attorneys or other public employees or elected officials, or attorneys
representing finance companies or real estate developers, to serve on
recipient governing bodies as members appointed by a bar association as
its representative is a factual issue. The Commentary recognizes that:
(c)onflicts may arise in the representation by attorney board
members of institutions or individuals who are in conflict with
provider clients. Concern about the risks associated with conflicts
should not exclude from the governing body every person identified
with an institution or individual with an adverse interest. A strict
rule could exclude persons with skills and experience of benefit to
the provider and could inhibit development of an effective
relationship between the provider and the private bar. In rural
areas particularly, where the pool of potential members is
relatively small, it may be impossible to avoid all conflicts. The
provider, however, should assure that the presence of members with
potential conflicts does not inhibit forceful representation of
clients.
The proposed provision suggests a way that, under appropriate
circumstances, the recipient can assure that individuals with clear and
substantial conflicts of interest do not serve on its governing body,
while permitting it to seat other individuals who may have a less
substantial or merely potential conflict, and leaving it to the
guidance of the applicable rules of professional responsibility when
actual conflicts arise.
Section 1607.4 Functions of a Governing Body
Section 1607.4(a). This proposal deletes the requirement for
``effective'' prior public notice, which has proven to be a difficult
concept to enforce and may be very fact-specific. The Committee felt
that truly effective public notice is virtually impossible to achieve,
even if a recipient spent huge amounts of money on advertising. The
Corporation does not wish to promote such wasteful expenditures or
assume that the efforts were not ``effective'' simply because few
members of the public showed up at a board meeting. Instead, the
standard should be that of ``reasonable'' prior public notice, so that
recipients would only be required to do what is reasonable under the
specific local circumstances.
The Committee also considered whether it should include within the
regulation specific guidance as to what kinds of matters were properly
discussed in executive session. Instead, it decided to recommend that
recipients look to the kinds of matters described in the LSC bylaws and
Sunshine Act regulation (45 CFR part 1622), state Sunshine Act
provisions, or other provisions in state non-profit corporation law for
guidance as to the kinds of matters that should appropriately be
discussed out of the public eye. A recipient should determine, based on
that review and local circumstances, how it should conduct its
business.
Section 1607.4(b). The proposed regulation includes new language to
make it clear that recipient governing bodies have, in addition to the
specific functions described in the regulation, the authority and
responsibility inherent in their status as boards of non-profit
corporations. The Committee felt that the current regulatory language
did not grant the governing body the general authority, for example, to
hire and fire a program's executive director, and there should be
language that granted such authority.
In addition, there is new language that was added to make the
section consistent with ABA opinions on the role of governing bodies of
legal assistance programs under the Model Rules, especially with
respect to the governing bodies' interference with an attorney's
representation of a client or with the conduct of any ongoing
representation. The Committee wished to make clear that while Board
members were prohibited from such interference, the Board as a whole
should be encouraged to adopt policies to guide the executive
director's actions when he or she discovers that the recipient has
undertaken representation in a case that is inappropriate under the
restrictions of the LSC Act or regulations.
Section 1607.4(c). This new provision is intended to make it clear
that it is up to recipients to design their own bylaws. The Corporation
would have authority to review a program's bylaws, as well as any
revisions that are made in them, for the purpose of ensuring that they
comply with the LSC Act and regulations.
Section 1607.5 Compensation
Section 1607.5(a). The proposed regulation makes two significant
changes in the current rule dealing with recipient board member
compensation. First, since the provision of the LSC Act that prohibits
compensation applies only to attorney board members, it would be
consistent with the Act to permit a recipient to pay compensation to a
client or other non-attorney board member for board service or other
service to the recipient. The regulation was revised to make it
consistent with the restriction in the Act.
Second, this proposal reverses the policy decision made by the LSC
Board in 1988, which interpreted the language of the LSC Act to
prohibit a recipient board member from receiving compensation from any
recipient, not just the one on whose board the member sat. The effect
of the 1988 revision was to prohibit field program staff from sitting
on state and national support center boards, and vice versa. It
prevented support centers from being accountable through their boards
to the programs that they were intended to serve. This proposed
language restores and clarifies the prior LSC policy that was in
existence from 1975 to 1988 and which reflects the intent of Congress.
Both the Legal Services Corporation Reauthorization bill that passed
the House in 1992 (H.R. 2039) and the bill that was approved by the
Senate Committee on Labor and Human Resources the same year (S. 2870)
would have amended the LSC Act in a manner consistent with the proposed
revision.
In addition, the proposal clarifies that all board members may
receive a per diem payment for expenses in lieu of actual expense
reimbursements, so long as such a payment is reasonable in light of
actual average costs. Such a per diem may be easier for programs to
administer and may encourage board members to save money on items such
as meals and lodging by setting the per diem at a relatively low rate.
The last phrase of the sentence was deleted to make it clear that
reimbursement could be made for expenses incurred by recipient board
members, on the same terms and conditions that are applicable to non-
board members when such board members are involved in other program
activities not directly related to their board membership or service,
e.g., attorney board members who volunteered to drive a program client
to a meeting or a hearing could receive reimbursement for automobile
expenses, or attorney board members who did pro bono work on behalf of
the program could receive reimbursement for travel expenses for
attending an out-of-town settlement conference.
Sections 1607.5 (b) and (c). The proposal includes two new
provisions that clarify how the compensation prohibition relates to a
recipient's private attorney involvement program. One provision makes
it clear that the Corporation could partially waive the compensation
prohibition for those rural programs that operate in areas where there
are so few attorneys that it is difficult or impossible to find
attorneys willing to serve on program boards if that means that their
partners and associates are barred from participating in judicare or
other compensated PAI activities. The second provision was added to
clarify that attorney board members can receive referrals of fee-
generating cases and participate freely in the recipient's pro bono PAI
programs on the same terms as any other attorney. This is particularly
important for rural areas where there are few private attorneys.
Section 1607.6 Waiver
Section 1607.6(a). There is no change in this waiver provision
which was designed to cover those programs, primarily reservation-based
Native-American programs, that existed prior to the creation of the
Corporation and had nonattorney majorities on their boards. In lieu of
attorneys, most of those programs include tribal advocates who practice
in tribal courts.
Section 1607.6(b). This new provision was added to permit the
Corporation president the discretion to waive the requirement of one-
third client membership when the president has determined that a
recipient, like the National Clearinghouse for Legal Services or the
Food Research & Action Center (``FRAC''), does not have as a primary
purpose the provision of legal assistance to clients. The waiver
provision requires a specific determination by the Corporation
president, rather than a self-determination by the recipient, and does
not permit waiver of the client board member requirement so long as the
recipient has as a primary purpose the provision of legal assistance to
clients. Such a waiver does not conflict with the statutory provision
governing client membership because that provision applies only to
those recipients that are organized ``solely for the provision of legal
assistance to eligible clients.'' It is anticipated that this waiver
will be used sparingly for exceptional circumstances.
Section 1607.6(c). This provision was revised to clarify that the
Corporation president could waive any provisions of the regulation, as
long as the waiver conforms with applicable law. It also allows partial
waivers to be granted. In addition, language was added to make it clear
that the nature of the legal community could be considered as a basis
for a waiver, as well as requirements of state law. The Committee
recognized that there may be programs, especially in rural areas, where
there are peculiar problems or situations within the legal community
that may make it necessary or desirable to permit the recipient to have
a governing board that varies from the normal. An example would be for
those programs that serve native-American populations and practice in
tribal courts. The president, through the waiver authority, could
permit the recipient to substitute one or more tribal advocates for
attorney board members. In addition, this provision could be used as
authority for partial waiver of the compensation prohibition, to permit
a recipient to adopt policies that would allow partners or associates
of a board member to participate in compensated PAI activities
supported by the recipient.
Section 1607.6(d). The only change made in this subsection was a
reference to the previous subsection.
Section 1607.6(e). This new provision was added to permit the LSC
president to require an organization that is not principally a legal
assistance organization but gets an LSC grant for legal assistance
activities, to set up a policy board, similar to those established for
several of the Delivery Systems Study programs during the late 1970's,
to govern the activities covered by the LSC grant.
Deletion of Section 1607.7 Compliance
The compliance section of the current regulation is no longer
applicable, since it refers to the changes that were made in the
regulation in 1983. None of the proposed revisions would require
programs to change anything about their board structures in order to
come into compliance, although they would permit programs to make
numerous changes and still remain in compliance with the regulation.
Therefore the Committee proposal deletes the provisions on compliance.
The Corporation should insure compliance with the new regulation in the
same manner as it insures compliance with the other regulations.
List of Subjects in 45 CFR Part 1607
Legal services.
For the reasons set forth in the preamble, LSC proposes to amend 45
CFR part 1607 as follows:
PART 1607--GOVERNING BODIES
1. The authority citation for part 1607 is revised to read as
follows:
Authority: 42 U.S.C. 2996f(c).
2. Section 1607.1 is revised to read as follows:
Sec. 1607.1 Purpose.
This part is designed to insure that the governing body of a
recipient will be well qualified to guide a recipient in its efforts to
provide high-quality legal assistance to those who otherwise would be
unable to obtain adequate legal counsel, and to insure that the
recipient is accountable to its clients.
3. Section 1607.2 is revised to read as follows:
Sec. 1607.2 Definitions.
(a) Attorney member as used in this part means a board member who
is an attorney admitted to practice in a State within the recipient's
service area.
(b) Board member refers to a member of a recipient's governing
body.
(c) Eligible client member as used in this part means a person who
is eligible to receive legal assistance under the Act at the time of
appointment to each term of office to the recipient's governing body,
without regard to whether the person actually has received or is
receiving legal assistance at that time. Eligibility of client members
shall be determined by the recipient or, if the recipient so chooses,
by the appointing organization(s) or group(s), in accordance with
policies adopted by the recipient.
(d) Governing body refers to the board of directors or other
governing policy board or body of a recipient receiving funds under
section 1006(a)(1)(A) of the Act.
(e) Recipient refers to any grantee or contractor receiving
financial assistance from the Corporation under section 1006(a)(1)(A)
of the Act.
4. Section 1607.3 is revised to read as follows:
Sec. 1607.3 Composition.
(a) A recipient shall be incorporated in a State in which it
provides legal assistance, and shall have a governing body that
reasonably reflects the interests of the eligible clients in the area
served and consists of members, each of whom is supportive of the
purposes of the Act and has an interest in, and knowledge of, the
delivery of quality legal services to the poor.
(b) At least sixty percent (60%) of a governing body shall be
attorney members.
(1) A majority of the members of the governing body shall be
attorney members appointed by the governing body(ies) of one or more
State, county or municipal bar associations, the membership of which
represents a majority of attorneys practicing law in the localities in
which the recipient provides legal assistance.
(i) Appointments may be made either by the bar association which
represents a majority of attorneys in the recipient's service area or
by bar associations which collectively represent a majority of the
attorneys practicing law in the recipient's service area.
(ii) Recipients that provide legal assistance in more than one
State may provide that appointments of attorney members be made by the
appropriate bar association(s) in the State(s) or locality(ies) in
which the recipient's principal office is located or in which the
recipient provides legal assistance.
(2) Any additional attorney members may be selected by the
recipient's governing body or may be appointed by other organizations
that are designated by the recipient and have an interest in the
delivery of legal services to the poor.
(3) Appointments shall be made so as to insure that the attorney
members reasonably reflect the diversity of the legal community and the
population of the areas served by the recipient, including race,
ethnicity, gender and other factors.
(c) At least one-third of the members of a recipient's governing
body shall be eligible clients when appointed. The members who are
eligible clients shall be appointed by a variety of appropriate groups
designated by the recipient that may include, but are not limited to,
client and neighborhood associations and community-based organizations
which advocate for or deliver services or resources to the client
community served by the recipient. Recipients shall designate groups in
a manner that reflects, to the extent possible, the variety of
interests within the client community, and eligible client members
should be selected so that they reasonably reflect the diversity of the
eligible client population served by the recipient, including race,
gender, ethnicity and other factors.
(d) The remaining members of a governing body may be appointed by
the recipient's governing body or selected in a manner described in the
recipient's bylaws or policies, and the appointment or selection shall
be made so that the governing body as a whole reasonably reflects the
diversity of the areas served by the recipient, including race,
ethnicity, gender and other factors.
(e) The nonattorney members of a governing body shall not be
dominated by persons serving as the representatives of a single
association, group or organization, except that eligible client members
may be selected from client organizations that are composed of
coalitions of numerous smaller or regionally based client groups.
(f) Members of a governing body may be selected by appointment,
election, or other means consistent with this part and with applicable
State law. Recipients may recommend candidates for governing body
membership to the appropriate bar associations or other appointing
groups and may consult with appointing organizations to insure that
appointments are made consistent with the provisions of this part.
(g) Recipients shall make reasonable and good faith efforts to
insure that governing body vacancies are filled as promptly as
possible.
(h) A recipient may reject the appointment of a board member if the
recipient determines that:
(1) The person does not meet the criteria for board membership set
out in this part, including financial eligibility for persons appointed
as eligible client members, or
(2) The person has an actual and significant individual or
institutional conflict of interest with the recipient or the
recipient's client community that could influence the person's ability
to exercise independent judgment as a member of the recipient's
governing body.
5. Section 1607.4 is revised to read as follows:
Sec. 1607.4 Functions of a governing body.
(a) A governing body shall have at least four meetings a year. A
recipient shall give timely and reasonable prior public notice of all
meetings, and all meetings shall be public except for those concerned
with matters properly discussed in executive session.
(b) In addition to other powers and responsibilities that may be
provided for by state law, a governing body shall establish and enforce
broad policies governing the operation of a recipient, but neither the
governing body nor any member thereof shall interfere with any
attorney's professional responsibilities to a client or obligations as
a member of the profession or interfere with the conduct of any ongoing
representation.
(c) A governing body shall adopt bylaws which are consistent with
State law and the requirements of this part. Recipients shall submit a
copy of such bylaws to the Corporation and shall give the Corporation
timely notice of any changes in such bylaws.
6. Section 1607.5 is revised to read as follows:
Sec. 1607.5 Compensation.
(a) While serving on the governing body of a recipient, no attorney
member shall receive compensation from that recipient, but any member
may receive a reasonable per diem expense payment or reimbursement for
actual expenses for normal travel and other reasonable out-of-pocket
expenses.
(b) Pursuant to a waiver granted under Sec. 1607.6(c)(1), a
recipient may adopt policies that would permit partners or associates
of attorney members to participate in any compensated private attorney
involvement activities supported by the recipient.
(c) A recipient may adopt policies that permit attorney members,
subject to terms and conditions applicable to other attorneys in the
service area, (1) to accept referrals of fee-generating cases under
part 1609 of this chapter, (2) to participate in any uncompensated
private attorney involvement activities supported by the recipient, (3)
to seek and accept attorneys' fees awarded by a court or administrative
body or included in a settlement in cases undertaken pursuant to
paragraphs (c)(1) and (2) of this section, and (4) to receive
reimbursement from the recipient for out-of-pocket expenses incurred by
the attorney member as part of the activities undertaken pursuant to
paragraph (c)(2) of this section.
7. Section 1607.6 is revised to read as follows:
Sec. 1607.6 Waiver.
(a) Upon application, the president shall waive the requirements of
this part to permit a recipient that was funded under section 222(a)(3)
of the Economic Opportunity Act of 1964 and, on July 25, 1974, had a
majority of persons who were not attorneys on its governing body, to
continue such nonattorney majority.
(b) Upon application, the president may waive Sec. 1607.3(c) for
those recipients which the president has determined do not have as a
primary purpose the provision of legal assistance to clients.
(c) Upon application, the president may grant any waivers of the
requirements of this part which are permitted by applicable law if a
recipient demonstrates that it cannot comply with them because of (1)
the nature of the population, legal community or area served, or (2)
special circumstances, including but not limited to, conflicting
requirements of the recipient's other major funding source(s) or State
law.
(d) A recipient seeking a waiver under paragraph (c) of this
section shall demonstrate that it has made diligent efforts to comply
with the requirements of this part.
(e) As a condition of granting a waiver under paragraph (c) of this
section, the president may require that a recipient establish a policy
board or body, whose membership is selected consistent with the
requirements of Sec. 1607.3, to establish and enforce policy,
consistent with the provisions of Sec. 1607.4, with respect to the
services provided under any grant or contract made under the LSC Act.
Dated: June 10, 1994.
Victor M. Fortuno,
General Counsel.
[FR Doc. 94-14566 Filed 6-15-94; 8:45 am]
BILLING CODE 7050-01-P
