[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Rules and Regulations]
[Pages 45754-45755]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21663]
-----------------------------------------------------------------------
LEGAL SERVICES CORPORATION
45 CFR Part 1637
Representation of Prisoners
AGENCY: Legal Services Corporation.
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: This interim rule implements a restriction in the Legal
Services Corporation's (``LSC'' or ``Corporation'') FY 1996
appropriations act which prohibits recipients from participating in any
litigation on behalf of prisoners. Although this interim rule is
effective upon publication, the Corporation also solicits public
comment on the interim rule in anticipation of adoption of a final rule
at a later time.
DATES: This interim rule is effective on August 29, 1996. Comments must
be submitted on or before October 28, 1996.
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: 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)(15), a restriction in the Corporation's FY 1996
appropriations act, Public Law 104-134, 110 Stat. 1321 (1996), which
prohibits participation of LSC recipients in any litigation on behalf
of a person incarcerated in a Federal, State or local prison. The
Committee held hearings on staff proposals on July 9 and 19 and the
Board adopted this interim rule on July 20 for publication in the
Federal Register. The Committee recommended and the Board agreed to
publish this rule as an interim rule. An interim rule is necessary in
order to provide prompt and critically necessary guidance to LSC
recipients on legislation which is already effective and which carries
strong penalties for noncompliance. Because of the great need for
guidance on how to comply with substantially revised legislative
requirements, prior notice and public comment are impracticable,
unnecessary, and contrary to the public interest. See 5 U.S.C.
553(b)(3)(B) and 553(d)(3). Accordingly, this rule is effective upon
publication.
However, the Corporation also solicits public comment on the
interim rule for review and consideration by the Committee. After
receipt of public comment, the Committee intends to hold public
hearings to discuss the written comments and to hear oral comments. It
is anticipated that a final rule will be issued which will supersede
this interim rule.
Generally, this rule prohibits any recipient involvement in
litigation on behalf of persons who are incarcerated in a Federal,
State or local prison.
A section-by-section discussion of this interim rule is provided
below.
Section 1637.1 Purpose
This rule is intended to ensure that LSC recipients do not litigate
on behalf of any person who is incarcerated in a Federal, State or
local prison.
Section 1637.2 Definitions
The statutory restriction prohibits LSC recipients from
participating in any litigation on behalf of a person who is
incarcerated in a Federal, State or local prison. To provide guidance
regarding the reach of this restriction, the definition section defines
the terms ``incarcerated'' and ``Federal, State or local prison.''
``Incarcerated'' is defined as the involuntary physical restraint
in a facility dedicated to such restraint of a person who has been
arrested for or convicted of a crime. The term ``Federal, State or
local prison'' refers to any facility maintained by a governmental
authority for purposes of housing persons who are incarcerated.
The definition includes pre-trial detainees even though they are
persons who have not been convicted of a crime.
[[Page 45755]]
Conversely, it does not apply to parolees and probationers, even though
they are persons who have been convicted of a crime and who are still
under the jurisdiction of the corrections department, because they are
no longer physically held in custody in a prison. The definitions would
include persons who are held involuntarily in a mental health facility
if they were committed as a result of their arrest for a crime. On the
other hand, a person held in a mental health facility because of a
civil commitment would not be incarcerated and could be represented.
The term would also not include juvenile offenders who have not been
charged as adults because charges against juveniles are generally
considered to be civil in nature.
Intermittent imprisonment poses close questions, which would be
resolved on a case-by-case basis, determined by whether the person is
predominantly incarcerated or free. For example, persons on furlough or
on daytime work release should be considered to be incarcerated;
however, persons serving a term of successive weekends in prison would
be considered not to be incarcerated.
``Federal, State or local prison'' is defined as a facility that is
maintained under governmental authority for purposes of housing persons
who are incarcerated. It includes private facilities under contract
with State corrections departments to house convicted criminals. It
also includes local jails.
Section 1637.3 Prohibition
This section states the prohibition on participation in litigation
or administrative proceedings challenging the conditions of
incarceration on behalf of a person who is incarcerated in a Federal,
State or local prison.
Section 1637.4 Change in Circumstances
This section addresses the situation where there is a change of
circumstances after litigation is undertaken on behalf of an eligible
client and the individual becomes incarcerated. Such a change poses a
practical problem on which the regulation seeks to provide guidance.
When a program learns that its client has become incarcerated in a
prison, it must use its best efforts to discontinue representation of
the individual. Incarceration, however, may be of short duration and,
in some circumstances, by the time the recipient has succeeded in
withdrawing from the matter consistent with its ethical duty to the
client, the incarceration may have ended and with it the basis for the
prohibition. To address such a situation, the rule provides an
exception to the general prohibition. The exception would allow the
recipient's attorney to continue representation when the anticipated
duration of the incarceration is likely to be brief and the litigation
will outlast the period of the incarceration. As a guideline, the
recipient should consider incarceration which is expected to last less
than 3 months to be brief.
When incarceration has occurred after litigation has begun and its
duration is uncertain, there may be circumstances where a court will
not permit withdrawal in spite of the recipient's best efforts to do
so, generally because withdrawal would prejudice the client and is
found to be inconsistent with the recipient's professional
responsibilities. Whether continued representation in such
circumstances would be deemed to violate the regulation will be
determined on a case-by-case basis. Recipients should, however,
document their efforts to withdraw and renew the effort if it appears
that the incarceration will be of longer duration than originally
anticipated.
During the period in which the recipient is seeking alternate
counsel or other proper ways to conclude its involvement in such
litigation, it may file such motions as are necessary to preserve its
client's rights in the matter under litigation. The recipient may not
file any additional, related claims on behalf of that client, however,
unless failure to do so would jeopardize an existing claim or right of
the client.
Section 1637.5 Recipient Policies, Procedures and Recordkeeping
This section requires recipients to establish written policies and
procedures to ensure compliance with this part. Recipients are also
required to maintain documentation adequate to demonstrate compliance
with this part.
List of Subjects in 45 CFR Part 1637
Grant programs-law; Legal Services; Prisoner litigation.
For reasons set forth in the preamble, 45 CFR Chapter XVI is
amended by adding part 1637 as follows:
PART 1637--RESTRICTION ON LITIGATION ON BEHALF OF PRISONERS
Sec.
1637.1 Purpose.
1637.2 Definitions.
1637.3 Prohibition.
1637.4 Change in circumstances.
1637.5 Recipient policies, procedures and recordkeeping.
Authority: Pub. L. 104-134, 110 Stat. 1321, 42 U.S.C. 2996g(e).
Sec. 1637.1 Purpose.
This part is intended to ensure that recipients do not participate
in any litigation on behalf of persons incarcerated in Federal, State
or local prisons.
Sec. 1637.2 Definitions.
(a) Incarcerated means the involuntary physical restraint, in a
facility dedicated to such restraint, of a person who has been arrested
for or convicted of a crime.
(b) Federal, State or local prison means any facility maintained
under governmental authority for purposes of housing persons who are
incarcerated.
Sec. 1637.3 Prohibition.
A recipient may not participate in any civil litigation on behalf
of a person who is incarcerated in a Federal, State or local prison,
whether as a plaintiff or as a defendant, nor may a recipient
participate on behalf of such an incarcerated person in any
administrative proceeding challenging the conditions of incarceration.
Sec. 1637.4 Change in circumstances.
If, to the knowledge of the recipient, a client becomes
incarcerated after litigation has commenced, the recipient must use its
best efforts to withdraw promptly from the litigation, unless the
period of incarceration is anticipated to be brief and the litigation
is likely to continue beyond the period of incarceration.
Sec. 1637.5 Recipient policies, procedures and recordkeeping.
Each recipient shall adopt written policies and procedures to guide
its staff in complying with this part and shall maintain records
sufficient to document the recipient's compliance with this part.
Dated: August 20, 1996.
Suzanne B. Glasow,
Senior Counsel for Operations & Regulations.
[FR Doc. 96-21663 Filed 8-28-96; 8:45 am]
BILLING CODE 7050-01-P
