[Federal Register Volume 63, Number 33 (Thursday, February 19, 1998)]
[Proposed Rules]
[Pages 8387-8389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4157]
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LEGAL SERVICES CORPORATION
45 CFR Part 1644
Disclosure of Case Information
AGENCY: Legal Services Corporation.
ACTION: Proposed rule.
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SUMMARY: This proposed rule is a new rule intended to implement a
provision in the Legal Services Corporation's (LSC or Corporation) FY
1998 appropriations act which requires basic field recipients to
disclose certain information to the public and to the Corporation
regarding cases their attorneys file in court. The case information
that is provided to the Corporation will be subject to disclosure under
the Freedom of Information Act.
DATES: Comments should be received on or before March 23, 1998.
ADDRESSES: Comments should be submitted to the Office of the General
Counsel, Legal Services Corporation, 750 First St. NE., 11th Floor,
Washington, DC 20002-4250.
FOR FURTHER INFORMATION CONTACT: Office of the General Counsel, (202-
336-8817.
SUPPLEMENTARY INFORMATION: This proposed new rule is intended to
implement Section 505 of the Corporation's FY 1998 appropriations act,
which requires basic field recipients to disclose certain information
to the public and to the Corporation regarding cases filed in court by
any attorney employed by a recipient. See Public Law 105-119, 111 Stat.
2440. The Corporation issued a program letter on December 9, 1997,
providing recipients with guidance on compliance with Section 505 until
such time as a rule could be promulgated by the Corporation. On
February 6, 1998, the Corporation's Operations and Regulations
Committee (Committee) of the Corporation's Board of Directors (Board)
met to consider a draft proposed rule to implement the case disclosure
requirement. After making some changes to the draft rule, the Committee
adopted this proposed rule for publication for public comment. A
section-by-section analysis follows.
Section-by-Section Analysis
Section 1644.1 Purpose
The purpose section states that the rule is intended to ensure that
recipients disclose to the public and to the Corporation information
required by the case disclosure requirement on cases filed in court by
their attorneys.
Section 1644.2 Definitions
The case disclosure provision requires that recipients disclose
certain information, including the cause of action, for each case filed
in court by a recipient attorney. To clarify this requirement, this
proposed rule includes three definitions.
First, paragraph (a) of Sec. 1644.2 defines to disclose the cause
of action. To disclose the cause of action means to provide a
sufficient description of a particular case to indicate the principal
nature of the case. Examples would include: ``breach of warranty,''
``bankruptcy,'' ``divorce,'' ``domestic violence,'' ``petition to quiet
title,'' ``action to recover property,'' and ``employment
discrimination action.''
[[Page 8388]]
Paragraph (b) clarifies the type of recipient subject to the case
disclosure requirement. Recipient is defined as a grantee which
receives funds under Section 1006(a)(1)(A) of the LSC Act, 42 U.S.C.
2996e(a)(1)(A), that is, a basic field recipient which provides direct
legal assistance to the poor. Section 505 does not specifically apply
to subrecipients. However, as a matter of policy, this proposed rule
extends the case disclosure requirement of Section 505 to subrecipients
that provide direct legal representation to eligible clients.
Paragraph (c) clarifies that the term attorney, as used in this
part, means any attorney who is employed by a recipient. This would
include attorneys employed as regular or contract employees, regardless
of whether such attorneys are employed full-time or part-time. This
definition is not intended to mean that cases filed by part-time
attorneys outside of their employment with the recipient are subject to
this rule's case disclosure requirement. They are not. However, all
cases filed by a recipient's part-time attorneys under their employment
with the recipient must be reported.
Finally, the definition of attorney does not include private
attorneys providing legal assistance under a recipient's private
attorney involvement (PAI) program, because such attorneys are not
employed by a recipient. Another section in this rule expressly
provides that the case disclosure requirement does not apply to cases
filed under a recipient's PAI program.
Section 1644.3 Case Disclosure Requirement
This section sets out the basic requirements of the case disclosure
provision. Paragraph (a) lists the information a recipient must
disclose about applicable cases. First, the name and full address of
each party to a case must be disclosed unless one of two statutory
protections apply. The term ``full address'' means an address
sufficient to contact a party to the case, such as a street address or
post office box number with the city, state and zip code.
This provision is not intended to require recipients to provide a
name and address of a party when they have no knowledge of and no
access to such information. This could occur, for example, when the
information is not a matter of public record, the party is not a client
of the recipient, and the private attorney for that party refuses to
provide the information. However, the recipient must be able to
document its inability to provide the information and satisfy the
Corporation that a reasonable effort was made to obtain the
information.
A name or address need not be disclosed if (1) The name or address
is protected by an order or rule of court or by State or Federal law,
or (2) the recipient's attorney reasonably believes that revealing the
information would put the client of the recipient at risk of physical
harm. These protections are consistent with the express legislative
intent of the purpose and scope of the requirement. The legislative
history indicates that Congress intends that the disclosure requirement
apply to ``the most basic information'' about a case which is already
public and on file in court records, but does not apply to information,
for example, that would risk harm to a person or that is protected by
the attorney-client privilege. See 143 Cong. Rec. H 8004-8008 (Sept.
26, 1997).
The case disclosure requirement also requires disclosure of the
cause of action for any applicable case. This requirement is intended
to provide the public and the Corporation with information regarding
the nature or types of cases filed in court by legal services
attorneys, so that there is a public awareness of how legal services
funds are being expended.
Finally, the case disclosure provision requires disclosure of the
name and full address of the court where a case is filed and the case
number assigned to the case. ``Full address'' means an address
sufficient to contact the court.
Paragraph (b) of this section requires recipients to provide their
case information to the Corporation in semiannual reports, as specified
by the Corporation. The Corporation will provide guidance to recipients
on how and when to provide the information. This paragraph also
clarifies that reports submitted to the Corporation are subject to
disclosure under the Freedom of Information Act.
Paragraph (c) provides that a recipient must make the case
information described in paragraph (a) available in written form to any
person who requests such information. This rule does not mandate how
recipients must maintain the case information for disclosure to the
public, except that it must be provided in written form. Recipients may
choose to maintain an up-to-date central file containing the case
information for each case filed after January 1, 1998. Alternatively,
recipients may choose to compile such information centrally only at the
time of receipt of a public request or in preparation of the semiannual
report to the Corporation. In either event, the case information must
be made available within a reasonable time after a request is made by
any member of the public. Recipients may charge reasonable mailing and
document copying fees.
Section 1644.4 Applicability
This section clarifies the scope of the case disclosure
requirement. First, it states that only actions filed on behalf of
plaintiffs and petitioners must be disclosed. This is consistent with
the language of Section 505, which requires case information about
``each case filed by its [a recipient's] attorneys.'' This language
clearly applies to ``each case'' filed, not to individual filings in a
particular case. Thus, the case disclosure requirement does not require
updates on the status of cases for which information has already been
filed. In addition, the language of Section 505 refers to cases filed
by a recipient attorney. The general understanding of the meaning of
filing a case is that it refers to the initiation of a case, such as
the filing of a complaint by a plaintiff. Accordingly, submissions of
pleadings such as an answer or a cross claim on behalf of a defendant
in a case that was not initiated by a recipient are not covered by the
case disclosure requirement.
Although the case disclosure requirement normally applies only to
the original filing of a case, subparagraph (a)(2) of this section
applies the requirement when there is an appeal filed in court by a
recipient and the recipient was not the attorney of record in the case
below. Likewise, subparagraph (a)(3) applies the requirement to any
judicial appeal of an administrative action when the appeal is first
filed in court.
Finally, paragraph (b) clarifies that this rule does not apply to
private attorney involvement (PAI) programs under 45 CFR Part 1614. PAI
attorneys are not attorneys employed by recipients; rather, they are
generally private attorneys with their own private practices who have
been recruited by recipients to provide some pro bono or reduced fee
legal assistance to eligible clients. Besides, it has long been the
policy of the Corporation not to place discretionary burdens on PAI
programs that would greatly hamper the recruitment of PAI attorneys.
Section 1644.5 Recipient Policies and Procedures
This section requires the recipient to establish written policies
and procedures to guide the recipient's staff to ensure compliance with
this rule. Such procedures could include information regarding how any
person may be given access to or be provided
[[Page 8389]]
with copies of a recipient's case disclosure information. The
procedures could also set out the costs for copying or mailing such
information.
List of Subjects in 45 CFR Part 1644
Grant programs, Legal services, Reporting and recordkeeping
requirements.
For reasons set forth in the preamble, LSC proposes to amend
Chapter XVI of Title 45 by adding part 1644 as follows:
PART 1644--DISCLOSURE OF CASE INFORMATION
Sec.
1644.1 Purpose.
1644.2 Definitions.
1644.3 Case disclosure requirement.
1644.4 Applicability.
1644.5 Recipient policies and procedures.
Authority: Pub. L. 105-119, 111 Stat. 2440, Sec. 505; Pub. L.
104-134, 110 Stat. 1321; 42 U.S.C. 2996g(a).
Sec. 1644.1 Purpose.
The purpose of this rule is to ensure that recipients disclose to
the public and to the Corporation certain information on cases filed in
court by their attorneys.
Sec. 1644.2 Definitions.
For the purposes of this part:
(a) To disclose the cause of action means to provide a sufficient
description of the case to indicate the type or principal nature of the
case.
(b) Recipient means any grantee or contractor receiving funds from
the Corporation under section 1006(a)(1) of the Act and includes any
subrecipient which receives LSC funds from a recipient for direct
representation of eligible clients.
(c) Attorney means any attorney employed by the recipient, as a
regular or contract employee, and regardless of whether the attorney is
employed full-time or part time.
Sec. 1644.3 Case disclosure requirement.
(a) For each case filed in court by its attorneys after January 1,
1998, a recipient shall disclose, in accordance with the requirements
of this part, the following information:
(1) The name and full address of each party to a case, unless:
(A) the information is protected by an order or rule of court or by
State or Federal law; or
(B) the recipient's attorney reasonably believes that revealing
such information would put the client of the recipient at risk of
physical harm;
(2) The cause of action;
(3) The name and full address of the court where the case is filed;
and
(4) The case number assigned to the case by the court.
(b) Recipients shall provide the information required in paragraph
(a) of this section to the Corporation in semiannual reports in the
manner specified by the Corporation. Recipients may file such reports
on behalf of their subrecipients for cases filed by subrecipients
covered by this part. Such reports will be made available to the public
by the Corporation upon request pursuant to the Freedom of Information
Act, 5 U.S.C. 552.
(c) Upon request, a recipient shall make the information required
in paragraph (a) of this section available in written form to any
person. Recipients may charge reasonable mailing and document copying
fees.
Sec. 1644.4 Applicability.
(a) The case disclosure requirements of this part apply:
(1) Only to actions filed on behalf of plaintiffs or petitioners;
(2) Only to the original filing of a case, except for appeals filed
in appellate courts by a recipient if the recipient was not the
attorney of record in the case below; or
(3) To judicial appeals of administrative actions when such appeals
are first filed in court.
(b) This part does not apply to cases filed by private attorneys as
part of a recipient's private attorney involvement activities pursuant
to part 1614 of this chapter.
Sec. 1644.5 Recipient policies and procedures.
Each recipient shall adopt written policies and procedures to
implement the requirements of this part.
Dated: February 13, 1998.
Suzanne B. Glasow,
Senior Assistant General Counsel.
[FR Doc. 98-4157 Filed 2-18-98; 8:45 am]
BILLING CODE 7050-01-P
