[Federal Register Volume 60, Number 183 (Thursday, September 21, 1995)]
[Proposed Rules]
[Pages 48950-48951]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-23490]



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LEGAL SERVICES CORPORATION

45 CFR Part 1633


Restriction on Representation in Certain Eviction Proceedings

AGENCY: Legal Services Corporation.

ACTION: Proposed rule.

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SUMMARY: This proposed rule is intended to ensure that recipients 
refrain from using Legal Services Corporation (``LSC'' or 
``Corporation'') funds to provide representation in eviction 
proceedings of persons engaged in certain illegal drug activity.

DATES: Comments must be submitted on or before October 23, 1995.

ADDRESSES: Comments should be submitted to the Office of the General 
Counsel, Legal Services Corporation, 750 First Street, N.E., 11th 
Floor, Washington, DC 20002-4250.

FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, at 
(202) 336-8810.

SUPPLEMENTARY INFORMATION: On June 25, 1995, the Corporation Board of 
Directors (``Board'') adopted a resolution requiring Corporation staff 
to prepare a regulation prohibiting the use of Corporation funds to 
represent in certain eviction proceedings persons alleged to be 
engaging in illegal drug activity. On September 9, 1995, the Board's 
Operations and Regulations Committee (``Committee'') held public 
hearings on proposed 45 CFR Part 1633. After adopting several changes 
to the staff draft of the regulation, the Committee voted to publish 
the proposed rule in the Federal Register for notice and comment.
    The LSC Act grants the Corporation both general and specific 
rulemaking authority. Texas Rural Legal Aid v. LSC, 940 F.2d 685, 690-
91 (D.C. Cir. 1991); see e.g., 42 U.S.C. 2996e(a)(1)(A), (a)(1)(B), and 
2996f(a)(3). In particular, section 1007(a)(3) of the LSC Act ``gives 
[the Corporation] substantial power to regulate the `delivery of legal 
assistance' by program recipients.'' TRLA, at 691. In addition, as a 
private corporation granted the powers of a District of Columbia 
nonprofit corporation, 42 U.S.C. 2996e(a), the Corporation has the 
power to establish the terms under which it will make grants to 
entities to provide legal assistance. Id. Congress intended the 
exercise of ``considerable discretion'' by the Corporation in its 
implementation of the LSC Act. Id. Finally, under section 1007(a)(2)(C) 
of the LSC Act, 42 U.S.C. 2996f(a)(2)(C), the Corporation may provide 
guidance to its recipients as to appropriate caseload matters by 
establishing national goals, in conformance with which recipients are 
to establish priorities for the acceptance of cases. Id. at 693.
    A purpose of the legal services program is to assist in improving 
opportunities for low income persons. 42 U.S.C. 2996(3). In addition, 
in its grantmaking and oversight functions, the Corporation must ensure 
that recipients provide legal assistance in the most economical and 
effective manner. 42 U.S.C. 2996f(a)(3). Hence, a principal national 
goal of the Corporation, based in the LSC Act, is to provide economical 
and effective legal assistance in a manner that improves opportunities 
for low income persons.
    The drug problem has had a devastating effect on the poor in our 
country, especially those living in public housing. This situation is 
of grave concern to the Board, and has been an on-going concern in 
Congress. For example, section 508(18) of H.R. 2076, an appropriations 
measure currently before Congress, would prohibit recipients from 
providing representation in certain drug-related eviction proceedings. 
See H.R. 2076, 104th Cong., 1st Sess, section 504(18).
    Since tenants of public housing projects who engage in illegal drug 
activity may be viewed as a destructive force within public housing 
communities acting to the detriment of low income persons, it is the 
Corporation's considered view that representation of those who engage 
in such activity undermines the purposes of the LSC Act. Based on the 
above, the Board directed staff to prepare a proposed regulation 
addressing these concerns. Such regulation will implement the 
Corporation's goal of providing economical and effective legal 
assistance in a manner that improves opportunities for low income 
persons and will provide specific guidance to recipients to revise 
their priorities and procedures in the area of representation in drug-
related eviction proceedings.
    A section-by-section discussion of the proposed rule is provided 
below.

Section 1633.1  Purpose

    This section sets out the purpose of the proposed rule: to 
implement the goal of the Corporation to provide economical and 
effective legal assistance in a manner that improves opportunities for 
low income persons and to provide specific guidance in the case of 
drug-related eviction proceedings by prohibiting any recipient from 
providing representation in certain proceedings to evict from public 
housing projects persons convicted of or being prosecuted for certain 
drug-related activity.

Section 1633.2  Definitions

    This section defines ``controlled substance,'' ``public housing 
project,'' and ``public housing agency'' in the manner those terms are 
defined by federal statute. The term ``being prosecuted'' is defined to 
make clear that the prohibition attaches only when a prosecution has 
been instituted and is being pursued by a governmental authority, for 
example, by indictment or information. It is not sufficient for an 
affidavit to have been sworn by a private citizen or for an arrest to 
have occurred if no prosecution has followed.

Section 1633.3  Prohibition

    This section sets out the prohibition on the use of Corporation 
funds. It is intended to preclude the provision of representation in a 
proceeding to evict from a public housing project a person who has been 
recently convicted of or is being prosecuted for illegal drug activity. 
Such activity must be evidenced by a conviction or current prosecution 
for the sale, distribution, use or manufacture of a controlled 
substance. Under the prohibition if representation was commenced prior 
to prosecution, the recipient should seek to end the representation if 
a prosecution is thereafter commenced. The Corporation has concluded 
that a formal charge of illegal drug activity against a client will 
suffice to prohibit representation even though a conviction has not as 
yet resulted. The Corporation, however, believes that the prohibition 
should apply only when the charge of illegal drug activity has resulted 
in formal prosecution proceedings.
    In addition, the prohibition applies only if the allegation which 
forms the 

[[Page 48951]]
basis for the eviction proceeding is that the particular illegal drug 
activity for which the person has been convicted or is being prosecuted 
did or does now threaten the health or safety of others living in the 
public housing project or working in the public housing agency. This 
qualification is intended to make clear that, in order for the 
prohibition to apply, the allegation which forms the basis for the 
eviction must be that, at the time the illegal drug activity was 
engaged in, it threatened the health or safety of others within the 
public housing community or that the activity currently threatens such 
health or safety. In other words, the threat must stem from the illegal 
drug activity which resulted in prosecution/conviction.
    Finally, the prohibition extends only to the individual who has 
been convicted or is being prosecuted, and does not extend to other 
members of the individual's household who may be facing eviction 
because of the individual's illegal activity. For example, if a person 
is facing eviction based on the fact that another person in the 
household has been convicted of or is being prosecuted for the illegal 
sale, distribution, use or manufacture of a controlled substance, then 
the prohibition would not attach.

Section 1633.4  Recordkeeping

    This section requires recipients to maintain documentation 
regarding representation declined under this part. Such recordkeeping 
will assist the Corporation in its compliance monitoring efforts and 
will provide empirical data for informational purposes.

List of Subjects in 45 CFR 1633

    Legal services, Drugs, Public housing.

    For reasons set forth in the preamble, LSC proposes to amend 45 CFR 
chapter XVI by adding part 1633 as follows:

PART 1633--RESTRICTION ON REPRESENTATION IN CERTAIN EVICTION 
PROCEEDINGS

Sec.
1633.1  Purpose.
1633.2  Definitions.
1633.3  Prohibition.
1633.4  Recordkeeping.

    Authority: 42 U.S.C. 2996e(a), (b)(1)(A), 2996f(a)(2)(C), 
2996f(a)(3), 2996g(e).


Sec. 1633.1  Purpose.

    This part is designed to ensure that Corporation funds will not be 
used to provide representation in certain eviction proceedings to 
persons charged with or convicted of illegal drug activities.


Sec. 1633.2  Definitions.

    (a) ``Controlled substance'' has the meaning given that term in 
section 102 of the Controlled Substances Act (21 U.S.C. 802);
    (b) ``Public housing project'' and ``public housing agency'' have 
the meanings given those terms in section 3 of the United States 
Housing Act of 1937 (42 U.S.C. 1437a); and
    (c) A person is ``being prosecuted'' if a criminal proceeding has 
been instituted against such person by a governmental authority with 
jurisdiction to bring such prosecution.


Sec. 1633.3  Prohibition.

    Corporation funds shall not be used to defend any person in a 
proceeding to evict that person from a public housing project if:
    (a) the person has been recently convicted of or is being 
prosecuted for the illegal sale, distribution, use or manufacture of a 
controlled substance; and
    (b) the eviction proceeding is brought by a public housing 
authority on the basis that such illegal drug activity for which the 
person has been convicted or for which the person is being prosecuted 
did or does now threaten the health or safety of other tenants residing 
in the public housing project or employees of the public housing 
agency.


Sec. 1633.4  Recordkeeping.

    Recipients shall maintain a record of all instances in which 
representation is declined under this part. Records required by this 
section shall be available to the Corporation, and should be maintained 
in a manner consistent with the attorney-client privilege and the rules 
of professional responsibility applicable in the local jurisdiction.

    Dated: September 18, 1995.
Suzanne B. Glasow,
Senior Counsel for Operations & Regulations.
[FR Doc. 95-23490 Filed 9-20-95; 8:45 am]
BILLING CODE 7050-01-P