[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]


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LEGAL SERVICES CORPORATION
45 CFR Part 1637


Representation of Prisoners

AGENCY: Legal Services Corporation.

ACTION: Interim rule with request for comments.

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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