[Federal Register Volume 59, Number 189 (Friday, September 30, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-24276]


[[Page Unknown]]

[Federal Register: September 30, 1994]


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LEGAL SERVICES CORPORATION
45 CFR Part 1621

 

Client Grievance Procedures

AGENCY: Legal Services Corporation.

ACTION: Proposed Rule.

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SUMMARY: This proposed regulation would revise the Legal Services 
Corporation's (``Corporation'' or ``LSC'') regulation relating to 
client grievance procedures. The proposed rule revises the procedural 
requirements for client grievances and conforms the rule to applicable 
rules of professional responsibility and the attorney-client privilege. 
The proposal also includes a number of technical and structural 
revisions to make the rule easier to apply.

DATES: Comments should be received on or before November 29, 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 M. Fortuno, General Counsel, 
Office of the General Counsel, (202) 336-8810.

SUPPLEMENTARY INFORMATION: On June 19 and July 15, 1994, in Washington, 
DC., the Operations and Regulations Committee (``Committee'') of the 
LSC Board of Directors held hearings on proposed revisions to 45 CFR 
part 1621, LSC's regulation on client grievance procedures. At the July 
15 meeting, the Committee approved a draft to be published in the 
Federal Register as a proposed rule for public comment and agreed to 
extend the customary 30-day comment period to 60 days.
    The Committee recognizes that Congress is currently considering 
reauthorization legislation for the Corporation. Whenever Congress does 
pass a new LSC Act, the Corporation's regulations will be revisited and 
revised accordingly.

Section 1621.1  Purpose

    The revisions to this section are intended to clarify that there is 
no statutory entitlement to legal services or to a particular type of 
legal assistance. The intent of this rule is to provide for a mechanism 
whereby applicants for service or clients may complain about the denial 
of service or the quality of services provided.
    The proposed revisions to this section also make it clear that the 
rules regarding complaints about the quality and manner of service 
apply only to recipients that actually provide services to clients and 
not to those support centers and other recipients that do not offer 
direct intake. They also clarify that the ``applicants for service'' 
and the ``clients'' are not, for the purposes of these rules, local 
legal services programs, but rather, that they are the financially 
eligible clients represented by LSC-funded programs. Finally, the 
revisions are intended to clarify that a recipient is not accountable 
to the entire client community with regard to client grievances, but 
only to its actual clients and, to a limited extent, to those members 
of the community who actually apply for services.

Section 1621.2  Grievance Committee

    The proposed revision to this section would allow a recipient to 
include more than a proportionate number of clients on a grievance 
committee. The current rule requires that the committee be composed of 
lawyer and client members in approximately the same proportion in which 
they serve on the governing body. However, there is no statutory 
requirement governing the composition of board committees and, for 
client grievance issues, it may be preferable in some situations to 
have more than one-third of the committee membership be clients. In any 
event, at least one lawyer must be on the committee.

Section 1621.3  Complaints About the Quality or Manner of Providing 
Services

    Paragraph (a) is revised to clarify that the grievance procedure is 
available only to actual clients or their representatives, and not to 
opposing counsel or some other person who is disgruntled by the 
recipient's operations. It is also designed to address complaints not 
only about the quality of legal assistance, but also about a client's 
general treatment by the recipient's staff, including the receptionist, 
intake workers, or any other staff member who interacts with clients.
    Paragraph (a) is also revised to require a program to establish 
procedures for complaints about PAI attorneys. These procedures need 
not be the same as they are for program staff. The Corporation has a 
strong interest in encouraging involvement of the private bar in its 
recipients' PAI projects and does not want the grievance procedures to 
act as a deterrent to such involvement. However, the Corporation also 
sees the value in providing some complaint mechanism for dissatisfied 
clients. Therefore, the Corporation is especially interested in 
receiving comments from the private bar on this issue. Such comments 
should address issues such as local ethical requirements to report 
malpractice on the part of attorneys, complaint procedures, and 
appropriate actions that should be taken when a complaint is found to 
have merit.
    Paragraph (b) sets out the minimum requirements for a program's 
grievance procedures. It adds a requirement that complaints be in 
writing and retains the provision for transcription of oral complaints 
into writing, so that grievance committees would not have to respond to 
every oral statement made about a recipient. If a grievance committee 
does not satisfactorily resolve the matter based on the written 
complaint, the provision provides that the complainant then has an 
opportunity to address the committee in person or by teleconference. 
Although not required by the proposed rule, procedures may include a 
provision allowing a complainant to appeal the grievance committee's 
decision to the program's whole board of directors.
    This provision also clarifies that there is no attorney-client 
relationship between the complainant and the board's grievance 
committee. Thus, in order for the grievance committee to investigate a 
complaint, the client would have to consent to disclose any necessary 
confidential information. It is important to require that the consent 
be explicit, rather than simply treating the filing of a complaint as 
an implied consent. The consent called for is limited to those 
disclosures to the committee or the board necessary to consider the 
grievance.
    Paragraph (c) adds a provision setting out what a grievance 
committee may do in response to a complaint made pursuant to this Part. 
This is an effort to make it clear that the committee could recommend 
any action that is consistent with the applicable rules of professional 
responsibility, but it would be up to the executive director to 
determine what action is appropriate and to implement such action.
    Paragraph (d) requires a recipient to maintain a file, separate 
from the client's case file, containing a copy or summary of every 
written complaint and a statement of its disposition. In view of the 
second sentence of this paragraph, the requirement in the current rule 
that the file be preserved for review by the Corporation has been 
deleted. The second sentence adds a provision that prohibits the 
recipient from disclosing any information in the file that would 
violate the attorney-client privilege or the applicable rules of 
professional responsibility. Keeping the information the Corporation 
may need to see in a file separate from the client's case file would 
make it easier for the Corporation to have access to complaint 
information in a manner that would be less likely to jeopardize the 
confidentiality of client information. The Committee believes that the 
provisions on access to client information should be consistent with 
the applicable rules of professional responsibility and with section 
1006(b)(3) of the LSC Act, which prohibits LSC from abrogating the 
authority of states and local jurisdictions to enforce those rules.
    The ABA's Standing Committee on Legal Aid and Indigent Defendants 
(``SCLAID'') has expressed great concern about the protection of client 
confidences, secrets, and other information gained in the course of 
representation, and has urged the Committee to adopt rules that would 
permit LSC to have access to information only in a manner consistent 
with the applicable rules of professional responsibility. The Committee 
proposal makes it clear that complaint information disclosed by a 
client should not be disclosed to LSC or to any third party, except as 
permitted by applicable rules. Generally, that would mean that when the 
identity of a client is not known, information may be made available so 
long as it does not identify a client, either directly or indirectly. 
Thus, a client's name and any other information that could associate 
the document with a particular client, such as an address or the name 
of an employer, should be redacted.
    Once a document has been purged of any information that could be 
used to identify a particular individual or that could be associated 
with a particular person, that document could be shared with LSC, 
consistent with the rules of professional responsibility. However, the 
Committee solicits comments as to whether other information than that 
which would identify a client may have to be withheld pursuant to local 
rules of professional responsibility. The comments should include 
specific examples of types of information that would have to be 
withheld.
    In the event that LSC is investigating a specific complaint 
involving a previously identified client, unless the specific client 
has consented to the disclosure, the recipient may be under an 
obligation to withhold from LSC substantially more of the information 
provided by the client in order to ensure that secrets, confidences, 
and information gained in the course of the representation are not 
inappropriately revealed. Should the information thus provided prove 
insufficient to permit LSC to fulfill its obligation to ensure that 
recipients meet the requirements of this part, it is anticipated that 
the recipient and LSC will work together to devise an acceptable manner 
in which to proceed. Of course, if LSC is investigating a complaint at 
the request of a client, the client may consent to the disclosure of 
the information.

Section 1621.4  Complaints About Denial of Assistance

    Paragraph (a) is revised to require recipients to establish simple 
procedures for the timely review of a complaint by an applicant for 
service regarding a decision to deny service.
    Paragraph (b) sets out the requirements for such procedures, which 
should include instructions on how an applicant may obtain information 
on the reasons for a denial of service, including information on the 
recipient's priorities, eligibility guidelines, statutory restrictions 
on representation, and a recipient's case acceptance criteria. Case 
acceptance criteria would include, but would not be limited to, 
consideration of the merits of the applicant's case and any conflicts 
of interest that may exist. The Committee would like to hear comments 
on other items that should be included as case acceptance criteria. The 
procedures should also contain information on how a complainant can 
make a complaint and confer with a recipient's director or a member of 
the grievance committee regarding the denial of service.
    Proposed paragraph (c) requires recipients to make reasonable and 
appropriate efforts to inform applicants about the complaint 
procedures. What is reasonable and appropriate would vary depending on 
the resources of a recipient and the volume of its applicants. There 
are a variety of ways, depending on the circumstances, in which the 
standard could be met. They include, but are not limited to: (1) 
Providing written information about the complaint procedure to all 
rejected applicants whose eligibility is determined in person; (2) 
providing written notification to rejected applicants whose 
determinations are routinely acknowledged in writing; (3) using voice 
mail or other available technology, if appropriate and economically 
feasible; or (4) providing oral descriptions of the complaint 
procedures for rejected applicants who express dissatisfaction with the 
determination. The standard would not include a practice that would 
overwhelm a program's telephone system or exact too high an 
administrative cost.
    Paragraph (d) prohibits the recipient from disclosing any 
information maintained by the recipient regarding a complaint of denial 
of assistance to the Corporation or any third party in a manner that 
would violate the attorney-client privilege or the applicable rules of 
professional responsibility. This paragraph does not require the 
recipient to maintain a file on complaints of denial of assistance.
    Although recipients are not required to do so by the rule, they 
should make reasonable and appropriate efforts to ensure that non-
English speaking individuals and those with communicative disorders 
understand the complaint procedures, have the tools to adequately 
express their complaints, and receive appropriate explanations of why 
their applications for service were denied or what actions are being 
taken in response to their complaints.

List of Subjects in 45 CFR Part 1621

    Legal services.

    For reasons set forth in the preamble, part 1621 is proposed to be 
revised to read as follows:

PART 1621--CLIENT GRIEVANCE PROCEDURES

Sec.
1621.1  Purpose.
1621.2  Grievance Committee.
1621.3  Complaints about the quality or manner of providing 
services.
1621.4  Complaints about denial of assistance.

    Authority: 42 U.S.C. 2996e(b)(3); 2996f(a)(1).


Sec. 1621.1  Purpose.

    By providing an effective complaint mechanism for an applicant for 
service who believes that legal assistance has been denied improperly, 
or for a client who is dissatisfied with the quality or manner of 
services provided, this part seeks to insure that recipients treat 
every client and applicant for service fairly and with dignity and 
respect and provide each client with high quality legal services.


Sec. 1621.2  Grievance Committee.

    The governing body of a recipient shall establish a grievance 
committee or committees, composed of lawyer and eligible client members 
of the governing body. One third or more of the members of each 
grievance committee shall be eligible client members of the governing 
body.


Sec. 1621.3  Complaints about the quality or manner of providing 
services.

    (a) A recipient shall establish procedures for determining the 
validity of a complaint by a client about the manner or quality of 
services that have been provided to the client by members of the 
recipient's staff or by private attorneys under part 1614 of these 
regulations.
    (b) The procedures shall provide at least:
    (1) Information to a client at the time of the initial visit about 
how to make a complaint;
    (2) Prompt consideration of each complaint by the director of the 
recipient, or the director's designee; and
    (3) An opportunity for a complainant to submit a written complaint 
to a grievance committee established by the governing body pursuant to 
Sec. 1621.2, if the director of the recipient or the director's 
designee is unable to resolve the matter to the complainant's 
satisfaction.
    (i) Upon request, the recipient shall transcribe a brief written 
statement of the complaint, dictated by the complainant, for submission 
to the grievance committee.
    (ii) Each written complaint shall include a signed statement by the 
complainant giving limited written consent to disclose client 
confidences, secrets or other information relating to the 
representation of the complainant necessary to investigate the matters 
and issues raised by the complaint.
    (4) The procedures shall also provide an opportunity for the 
complainant to appear before the grievance committee, either in person 
or by teleconference, if the grievance committee is unable to resolve 
the matter to the complainant's satisfaction based on the written 
complaint. The complainant may be assisted by another person.
    (c) The grievance committee may recommend that the director of the 
recipient take appropriate action to correct any problems that it finds 
as a result of a review of a complaint made under this section. No 
actions shall be taken that are inconsistent with the applicable rules 
of professional responsibility.
    (d) The recipient shall maintain a file, separate from the case 
file, containing either a copy or, if appropriate, a complete and 
accurate summary of every written complaint made pursuant to 
Sec. 1621.3 and a statement of its disposition. The recipient shall not 
disclose the contents of this file to the Corporation or to any other 
third party in a manner that would violate the attorney-client 
privilege or applicable rules of professional responsibility, without 
the express written consent of the client.


Sec. 1621.4  Complaints about denial of assistance.

    (a) A recipient shall establish simple procedures for timely review 
of a complaint by an applicant for service regarding (1) a decision by 
the recipient to deny service and (2) the reasons for the denial.
    (b) The procedures shall include instructions regarding how 
applicants for service can:
    (1) obtain information necessary to explain why service was denied, 
including information describing the recipient's priorities, 
eligibility guidelines, applicable restrictions on representation 
contained in the Act and regulations, and case acceptance criteria. 
Such case acceptance criteria may include, but shall not be limited to, 
the merits of a client's claim and any conflicts of interest that may 
exist;
    (2) make a complaint questioning the denial of assistance; and
    (3) confer with the director of the recipient or the director's 
designee, and, to the extent practicable, with a member of a grievance 
committee established pursuant to Sec. 1621.2 regarding the reasons for 
the decision denying service.
    (c) Recipients shall make reasonable and appropriate efforts to 
inform applicants who have been denied service about the complaint 
procedures set out in Sec. 1621.4(b).
    (d) A recipient shall not disclose to the Corporation or to any 
third party any documents maintained by the recipient regarding denials 
of assistance that would violate the attorney-client privilege or 
applicable rules of professional responsibility, without the express 
written consent of the applicants for service.

    Dated: September 27, 1994.
Victor M. Fortuno,
General Counsel.
[FR Doc. 94-24276 Filed 9-29-94; 8:45 am]
BILLING CODE 7050-01-P