[Federal Register Volume 61, Number 63 (Monday, April 1, 1996)]
[Rules and Regulations]
[Pages 14250-14252]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-7823]



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LEGAL SERVICES CORPORATION

45 CFR Part 1633


Restriction on Representation in Certain Eviction Proceedings

AGENCY: Legal Services Corporation.

ACTION: Final rule.

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SUMMARY: This rule is intended to proscribe the use of Legal Services 
Corporation (``LSC'' or ``Corporation'') funds to provide 
representation in eviction proceedings of persons engaged in certain 
illegal drug activity. Should it become a statutory requirement, the 
rule will be amended to also proscribe the use of non-LSC funds for 
this purpose.

EFFECTIVE DATE: May 1, 1996.

FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, 
Legal Services Corporation, 750 First Street NE., 11th Floor, 
Washington, DC 20002-4250. (202) 336-8800.

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 persons alleged to be engaging in illegal drug activity in 
certain eviction proceedings. On September 9, 1995, the Board's 
Operations and Regulations Committee (``Committee'') held public 
hearings on a proposed rule, to be designated 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 proposed rule was published in the Federal Register on 
September 21, 1995 (60 FR 48950). Thirteen comments were submitted 
during the allotted time and seven arrived after the deadline, but all 
twenty were fully considered. The Committee met on December 17, 1995, 
and February 23, 1996, to consider the written and oral comments to the 
proposed rule. Based on the comments, the Committee revised the 
proposed rule. On February 24, 1996, the Board voted to adopt the rule 
as recommended by the Committee as a final rule.

Corporation's Authority To Promulgate the Rule

    One comment questioned LSC's authority to promulgate the rule. 
Under the LSC Act, the Corporation has been granted both general and 
specific rulemaking authority. The Corporation's rulemaking authority 
includes the authority to promulgate this rule in the absence of 
legislation intended to restrict the Corporation's discretion to 
regulate the matter which is the subject of the rule. See Texas Rural 
Legal Aid v. LSC, 940 F.2d 685, 690-91 (D.C. Cir. 1991), citing to 
provisions of the LSC Act, including 42 U.S.C. 2996e(a) and 2996f(a). 
As noted below, promulgation of this rule is consistent with provisions 
in H.R. 2076, the appropriations bill which included funds for LSC for 
Fiscal Year (``FY'') 1996. (H.R. 2076 was passed by Congress but vetoed 
by the President; however, the Corporation anticipates passage of 
legislation containing substantially similar language in the near 
future.)
    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 ongoing concern of the 
Congress, as evidenced by H.R. 2076, section 504(18) of the House bill, 
section 14(a)(18) of the Senate version, and section 504(a)(17) of the 
House-Senate Conference version, and of the U.S. Department of Housing 
and Urban Development (``HUD''). 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 in eviction proceedings of those formally 
charged with or convicted of such activities is not consistent with the 
purposes of the LSC Act. This rule 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 for revising their priorities and 
procedures in the area of representation in drug-related eviction 
proceedings.
    The remainder of this commentary provides a section-by-section 
analysis of the rule, discusses the major issues raised by comments, 
and notes the changes made in the final regulation.

Section 1633.1  Purpose

    This rule is intended to preclude recipients' use of Corporation 
funds to defend, in certain evictions proceedings, persons who have 
been charged with or convicted of illegal drug activities.

Section 1633.2  Definitions

    This section defines key terms used in the regulation. Several 
comments advocated changing the definition of ``being prosecuted'' 
which was included in the proposed rule. This is unnecessary, as the 
final rule no longer contains a definition of ``being prosecuted.'' The 
Corporation has revised the Prohibition section of the rule to be 
consistent with the apparent intent of Congress, as expressed in H.R. 
2076. Section 504(a)(17) of that bill prohibited a recipient from using 
funds to defend a person in a proceeding to evict that person from a 
public housing project, if ``that person has been charged with the 
illegal sale or distribution of a controlled substance.'' Therefore, in 
the final rule, recipients are prohibited from providing representation 
in eviction

[[Page 14251]]
proceedings to persons who have been charged with or convicted of 
illegal drug activities. At the same time, the Corporation emphasizes 
that the prohibition on representation applies only when a formal 
charge of illegal drug activity, whether by information or indictment 
or their equivalent, has been made and is pending against a person, or 
there has been a conviction. Thus, the prohibition on representation of 
a person will be lifted if and when such a charge has been dismissed, 
that person has been acquitted of the charged illegal drug activity, or 
one year has elapsed since that person's conviction.

Section 1633.3  Prohibition

    This section sets out the prohibition on the use of Corporation 
funds. It is intended to preclude a recipient from defending a person 
who has been charged with or, within the previous year, convicted of 
certain illegal drug activity in a proceeding to evict that person from 
a public housing project.
    The prohibition set forth in the final rule, as in the proposed 
rule, only restricts recipients' use of Corporation funds. The 
Corporation notes, however, that the House-Senate Conference bill, 
section 504(a)(17), which was passed by Congress and vetoed by the 
President, would have prohibited LSC from funding any recipient that 
engages in representation in the eviction proceedings which are the 
subject of this rule, regardless of whether the recipient uses LSC or 
some other funds to support the representation. Thus, should it become 
a statutory requirement, the rule will be amended to also proscribe the 
use of non-LSC funds for this purpose.
    Not surprisingly, most comments addressed this section of the rule. 
In general, the comments ranged from generally supportive to generally 
opposed, and from advocating expansion of the rule (for example, to 
cover all illegal activity) to advocating limiting the rule (for 
example, by permitting discretion on the part of attorneys). After 
considering all of the comments, the Corporation has concluded that the 
rule should reflect the apparent intent of Congress as declared in H.R. 
2076. In response to the comments, however, some modifications have 
been made to clarify the intent of the rule. These changes are 
discussed below, as are some of the specific comments.

Recent Conviction

    Several comments pointed out that the term ``recent'' as used in 
the proposed rule is vague and subject to inconsistent interpretation. 
In response, the final rule has been modified to specify a time period 
of one year. Thus, under the rule, a recipient may not represent, in 
eviction proceedings, a person who, within one year of applying for 
legal services, has been convicted of illegal drug activities which 
threatened the health or safety of tenants or employees of the public 
housing project.

Illegal Drug Activities

    Although the Corporation does not want to encourage recipients to 
provide legal assistance to persons who use, manufacture, or possess 
illegal controlled substances, in the final rule, LSC has decided to 
restrict the prohibition on recipients' provision of representation to 
persons who have been charged with or convicted of the illegal sale or 
distribution of controlled substances. Such a restriction is consistent 
with H.R. 2076, section 504(a)(17), which, if signed into law, would 
have precluded the Corporation from providing funds to any person or 
entity that defends in eviction proceedings a person who has been 
charged with the illegal sale or distribution of a controlled 
substance. Since, in H.R. 2076, Congress did not include possession, 
use, or manufacture of controlled substances as proscribed drug-related 
activities, the Corporation has decided not to extend the prohibition 
on representation to such activities. However, sound judgment should be 
exercised by recipients on this issue.

Constitutional Objections

    Two comments expressed concern that the prohibition impinges upon 
the due process rights of those tenants denied representation under the 
rule. One of these comments argues that the rule contradicts the notion 
of constitutional due process. The apparent concern is that the rule 
penalizes those merely alleged to have engaged in criminal behavior.
    The Corporation is aware of the likelihood that some tenants who 
are eventually acquitted or against whom charges are eventually 
dismissed will be denied representation in their eviction proceeding. 
While mindful of the burden on those denied representation under the 
rule, the Corporation continues to be of the view that the rule should 
be consistent with the apparent intent of Congress, as indicated in 
H.R. 2076. Under the final rule, the prohibition applies when a formal 
charge of illegal drug activity has been made against a person, for 
example, by indictment or information. Statements of witnesses or even 
an arrest will not suffice. Finally, although the rule denies certain 
individuals access to a legal services attorney to represent them in 
eviction proceedings, it does not deny such individuals the opportunity 
to participate in the eviction procedures provided under HUD 
regulations. See, generally, 24 CFR part 966.

Health and Safety

    In the comments, an issue arose concerning the prohibition's 
qualification that the drug activity threaten the health and safety of 
those residing in the public housing project or working in the public 
housing agency. It was suggested that, for the prohibition to apply, a 
threat to health or safety should not have to be alleged. While true 
that under the HUD regulations governing lease terminations, illegal 
drug activity provides grounds for such termination without reference 
to health or safety, the Corporation has decided to adopt the 
congressional view and to restrict representation when the basis for 
the eviction procedure is a threat to health or safety. See H.R. 2076, 
section 504(18) of the House bill, section 14(a)(18) of the Senate 
version, and section 504(a)(17) of the House-Senate Conference version.

Other Members of Household

    Several comments suggested expanding the rule to prohibit 
representation in eviction proceedings of those being evicted because 
other members of the household engaged in illegal drug activity. Upon 
reflection, the Corporation has decided to limit the prohibition on 
representation to the person charged with or convicted of the illegal 
drug activity, which is consistent with the apparent intent of 
Congress. Thus, representation of household members in eviction 
proceedings is not prohibited under the final rule.

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 and policy development 
purposes. This section has been modified to indicate that, in addition 
to the Corporation and its agents and representatives, records will be 
available to those entitled to access by statute.
    The proposed rule included language advising recipients that the 
records should be maintained in a manner consistent with the attorney-
client privilege and all applicable rules of professional 
responsibility. Since all actions of recipients must be consistent

[[Page 14252]]
with the attorney-client privilege and rules of professional 
responsibility, upon consideration, the Corporation has determined that 
inclusion of specific language in the rule is not necessary. In 
implementing the requirement, recipients should remain aware of the 
access provision and mindful of the ethical precepts governing client 
confidentiality.

List of Subjects in 45 CFR 1633

    Legal services, Drugs, Public housing.

    For the reasons set forth in the preamble, LSC amends 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. Secs. 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 recipients do not use 
Corporation funds to provide representation in certain public housing 
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);
    (c) A person has been ``charged with'' engaging in illegal drug 
activities if a criminal proceeding has been instituted against such 
person by a governmental entity with authority to initiate such 
proceeding and such proceeding is pending.


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 charged with or, within one year of the 
date when services are requested from a legal services provider, has 
been convicted of the illegal sale or distribution of a controlled 
substance; and
    (b) The eviction proceeding is brought by a public housing agency 
on the basis that such illegal drug activity for which the person has 
been charged or for which the person has been convicted 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 to any other person 
or entity statutorily entitled to access to such records.

    Dated: March 26, 1996.
Victor M. Fortuno,
General Counsel.
[FR Doc. 96-7823 Filed 3-29-96; 8:45 am]
BILLING CODE 7050-01-P