[Federal Register Volume 61, Number 169 (Thursday, August 29, 1996)]
[Rules and Regulations]
[Pages 45740-45741]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-21666]



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Part IX





Legal Services Corporation





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45 CFR Part 1609, et al.



Grantees: Regulations Implementing New Statutory Restrictions; Interim 
Final Rules and Proposed Rule

  Federal Register / Vol. 61, No. 169 / Thursday, August 29, 1996 / 
Rules and Regulations  

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LEGAL SERVICES CORPORATION

45 CFR Parts 1610 and 1636


Use of Non-LSC Funds; Client Identity and Statement of Facts

AGENCY: Legal Services Corporation.

ACTION: Interim rule with request for comments.

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SUMMARY: This interim rule is intended to implement a restriction 
contained in the Legal Services Corporation's (``LSC'' or 
``Corporation'') FY 1996 appropriations act. The rule requires LSC 
recipients to identify by name each plaintiff they represent in any 
litigation. In the case of pre-litigation negotiation, the regulation 
requires recipients representing plaintiffs to notify potential 
defendants of the names of the plaintiffs represented by the recipient. 
The rule also requires that a plaintiff sign a written statement of 
facts on which a complaint is based before the recipient engages in 
litigation or before it undertakes pre-litigation negotiations on the 
plaintiff's behalf. 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.
    This rule also amends part 1610 to reference 5 interim rules 
included in this publication of the Federal Register in the definition 
of ``Activity prohibited by or inconsistent with Section 504.''

DATES: This interim rule and the revision to part 1610 are 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)(8), a restriction in the Corporation's FY 1996 
appropriations act which requires LSC recipients to identify the 
plaintiffs they represent and have the plaintiffs sign written 
statements of the facts underlying the claims. The Committee held 
hearings on staff proposals on July 8 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 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.
    A section-by-section discussion of this interim rule is provided 
below.

Section 1636.1  Purpose

    The purpose of the rule is to ensure that during pre-litigation 
settlement negotiations and when filing a complaint in a court of law 
or otherwise participating in litigation against a defendant, 
Corporation recipients identify their clients to the adverse party. The 
rule also seeks to ensure that recipients undertake such activities 
based on facts which support the complaint.

Section 1636.2  Requirements

    This section sets forth the requirement that recipients identity 
the plaintiffs in all court complaints filed and prior to engaging in 
any pre-litigation settlement negotiations. The disclosure of a 
client's identity is not required when a court of competent 
jurisdiction has entered an order protecting the client from such 
disclosure to prevent probable, serious harm to significant client 
interests. In addition, this section requires that prior to the 
recipient entering in any pre-litigation settlement negotiations or 
prior to filing the complaint in court, each recipient obtain from the 
client being represented a signed statement of the facts supporting the 
complaint. The section does not apply to defendants represented by a 
recipient for counterclaims filed against a plaintiff. The requirements 
also do not apply to a recipient's delivery of advice and brief 
services to attempts to resolve matters for a client through 
negotiations in which there is no contemplation of litigation.
    The statement of facts is to be written in English and in the 
client's language if the client does not understand English. If the 
client's language is only an oral and not a written language, such as 
the Navajo language, the statement in English should be certified to 
have been translated orally to the client prior to the client's 
signing.
    In a few emergency situations, it may be necessary for the 
recipient to negotiate with a prospective defendant or to file an 
action before the plaintiff's statement of facts can be prepared or 
signed. This section allows the recipient to proceed without a signed 
statement in such emergencies, if delay in proceeding is reasonably 
likely to cause harm to a significant interest of the client. Emergency 
situations might include threats to take the client's child out of 
State, to assault the client, or to evict the client without following 
the required legal procedures. Where a recipient proceeds on an 
emergency basis, a statement must be prepared and signed as soon as 
possible.

Section 1636.3  Access to Written Statements

    This part provides a right of access to the statements of facts for 
certain specified governmental officials and their agents but not for 
adverse parties and others. The required statement of facts must be 
available in order for the auditors and monitors to review in order to 
confirm that the statement of facts has been obtained. The Corporation 
does not anticipate that copies of the statement will normally be 
retained in any LSC files. Access to the statement of facts by parties 
to the lawsuit is governed solely by the discovery rules of the court. 
This part does not create any new right of access to information for 
parties to a lawsuit or for others and the Corporation anticipates 
that, pursuant to current law, courts will, in most cases, determine 
that the statement is not discoverable by an adverse party in 
litigation.
    A copy of each statement drafted according to this section should 
be maintained separate from the client's case file.

Section 1636.4  Applicability

    This section specifies that the requirements of this part apply not 
only to cases handled by recipient staff but also to cases for which 
private attorneys are compensated by the recipient. Attorneys who are 
handling cases pro bono, however, are not required by the rule to 
maintain such documentation because pro bono attorneys are

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uncompensated and do not fall within the prohibition. In addition, it 
is the Corporation's judgment that the requirement of a plaintiff's 
statement of facts would be a substantial impediment to the recruitment 
of pro bono lawyers. Besides, the fact that pro bono lawyers are 
volunteering their time provides some protection against their bringing 
frivolous law suits.

Section 1636.5  Recipient Policies, Procedures and Recordkeeping

    This section requires recipients to establish policies and 
procedures to ensure compliance with this part and to maintain records 
sufficient to document compliance with this part.

Amendment to 45 CFR Part 1610 to Reference This Part and Parts 1637, 
1638, 1639, and 1642

    This interim rule also amends 45 CFR Part 1610 as published as an 
interim rule at 61 FR 41960 on August 13, 1996, to include references 
to this part and parts 1637, 1638, 1639 and 1642 in the definition of 
``Activity prohibited by or inconsistent with Section 504.''

List of Subjects

45 CFR Part 1610

    Grant programs--law, Legal services.

45 CFR Part 1636

    Client identity, Grant programs, Legal services.

    For reasons set forth in the preamble, 45 CFR Chapter XVI is 
amended as follows:

PART 1610--[AMENDED]

    1. 45 CFR Part 1610, as published in the Federal Register as an 
interim rule at 61 FR 41960 is amended by adding Section 1610.2(b)(4), 
(9), (11), (12) and (14) as follows:


Sec. 1610.2  Definitions

* * * * *
    (b) * * *
    (4) Section 504(a)(8) and Part 1636 of this Chapter (Statement of 
facts and client identification);
* * * * *
    (9) Section 504(a)(13) and Part 1642 of this Chapter (Attorneys' 
fees);
* * * * *
    (11) Section 504(a)(15) and Part 1637 of this Chapter (Prisoner 
litigation);
    (12) Section 504 (a)(16), as modified by Section 504(e), and Part 
1639 of this Chapter (Welfare reform);
* * * * *
    (14) Section 504(a)(18) and Part 1638 of this Chapter (In-person 
solicitation).
    2. Part 1636 is added to read as follows:

PART 1636--CLIENT IDENTITY AND STATEMENT OF FACTS

Sec.
1636.1  Purpose.
1636.2  Requirements.
1636.3  Access to written statements.
1636.4  Applicability.
1636.5  Recipient policies, procedures and recordkeeping.

    Authority: Pub. L. 104-134, 110 Stat. 1321.


Sec. 1636.1  Purpose.

    The purpose of this rule is to ensure that, when an LSC recipient 
files a complaint in a court of law or otherwise initiates or 
participates in litigation against a defendant or engages in pre-
complaint settlement negotiations, the recipient identifies the 
plaintiff it represents and assures that the plaintiff has a colorable 
claim.


Sec. 1636.2  Requirements.

    (a) When a recipient files a complaint in a court of law or 
otherwise initiates or participates in litigation against a defendant, 
or before a recipient engages in pre-complaint settlement negotiations 
on behalf of a client who has authorized it to file suit in the event 
that the settlement negotiations are unsuccessful, it shall:
    (1) identify each plaintiff by name in any complaint it files and 
identify each plaintiff it represents to prospective defendants in pre-
litigation settlement negotiations, unless a court of competent 
jurisdiction has entered an order protecting the client from such 
disclosure based on a finding, after notice and an opportunity for a 
hearing on the matter, of probable, serious harm to the plaintiff if 
the disclosure is not prevented; and
    (2) prepare a dated written statement signed by each plaintiff, 
enumerating the particular facts supporting the complaint, insofar as 
they are known to the plaintiff when the statement is signed.
    (b) The statement of facts must be written in English and, if 
necessary, in a language other than English that the plaintiff 
understands.
    (c) In the event of an emergency, where the recipient reasonably 
believes that delay is likely to cause harm to a significant safety, 
property or liberty interest of the client, the recipient may proceed 
with the litigation or negotiation without a signed statement of fact, 
provided that the statement is signed as soon as possible thereafter.


Sec. 1636.3  Access to written statements.

    (a) Written statements of fact prepared in accordance with this 
part are to be kept on file by the recipient and made available to the 
Corporation or to any Federal department or agency auditing or 
monitoring the activities of the recipient of the Corporation or to any 
auditor or monitor receiving Federal funds to audit or monitor on 
behalf of a Federal department or agency or on behalf of the 
Corporation.
    (b) This part does not give any other party any right of access to 
the plaintiff's written statement of facts, either in the lawsuit or 
through any other procedure. Access by other parties to the statement 
of facts is governed solely by the discovery rules of the court in 
which the action is brought.


Sec. 1636.4  Applicability.

    This part applies to cases for which private attorneys are 
compensated by the recipient as well as to those cases initiated by the 
recipient's staff.


Sec. 1636.5  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. 96-21666 Filed 8-28-96; 8:45 am]
BILLING CODE 7050-01-P