[Federal Register Volume 62, Number 76 (Monday, April 21, 1997)]
[Rules and Regulations]
[Pages 19421-19422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-10032]



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LEGAL SERVICES CORPORATION

45 CFR Part 1637


Representation of Prisoners

AGENCY: Legal Services Corporation.

ACTION: Final rule.

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SUMMARY: This final rule implements a restriction in the Legal Services 
Corporation's (``LSC'' or ``Corporation'') FY 1996 appropriations act 
that is currently incorporated by reference in the Corporation's FY 
1997 appropriations act which prohibits recipients from participating 
in any civil litigation on behalf of prisoners. The restriction also 
prohibits recipients from providing representation to prisoners in any 
administrative proceeding challenging the conditions of incarceration. 
Finally, this rule provides guidance for recipients on how to deal with 
the brief incarceration of their clients.

DATES: Effective May 21, 1997.

FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, 
(202) 336-8910.

SUPPLEMENTARY INFORMATION: Section 504(a)(15) of the Corporation's FY 
1996 appropriations act, Public Law 104-134, 110 Stat. 1321 (1996), 
prohibits the participation of LSC recipients in any litigation on 
behalf of a person incarcerated in a Federal, State or local prison. 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 the restriction. The Committee 
held hearings on staff proposals on July 9 and 19 and the Board adopted 
an interim rule on July 20 for publication in the Federal Register. The 
interim rule was published on August 29, 1996, at 61 FR 45754.
    The Corporation received 14 timely comments on the interim rule, 
and the Committee held public hearings on the rule on December 13, 
1996, and January 5, 1997. The Committee made a few changes and 
recommended a final rule, which the Board adopted on January 6, 1997, 
for publication as a final rule.
    The Corporation's FY 1997 appropriations act became effective on 
October 1, 1996, see Pub. L. 104-208, 110 Stat. 3009 (1996). It 
incorporated by reference the Sec. 504 condition on LSC grants included 
in the FY 1996 appropriations act implemented by this rule. 
Accordingly, the preamble and text of this rule continue to refer to 
the appropriate section number of the FY 1996 appropriations act.
    Generally, this rule prohibits any involvement by recipients in 
litigation on behalf of persons who are incarcerated in Federal, State 
or local prisons. It also prohibits recipients from providing 
representation to prisoners in any administrative proceeding 
challenging the conditions of incarceration.
    A section-by-section discussion of this final rule is provided 
below.

Section 1637.1  Purpose

    This rule is intended to ensure that LSC recipients are not 
involved in any civil litigation on behalf of any person who is 
incarcerated in a Federal, State or local prison. The word ``civil'' 
has been added to this final rule to clarify that the restriction 
applies only to civil litigation. Other statutory restrictions in the 
LSC Act already prohibit most criminal representation by LSC 
recipients.

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.'' In 
response to public comments on the interim rule's definitions, both 
technical and substantive changes have been made to these two 
definitions in this final rule. The technical changes have been made to 
delete unnecessary terms.
    Many of the public comments received by the Corporation came from 
mental health organizations, which were concerned about the discussion 
in the interim rule of the definitions of ``incarcerated'' and 
``Federal, State or local prison.'' The commentary stated that:

    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 comments were concerned about the effect of the rule on the ability 
of the mentally ill to receive much needed legal assistance. Others 
were concerned about the stigma that would result by the association of 
mental illness with criminal activity.
    Two specific objections were raised about the interpretation of the 
definitions in the commentary. First, commenters were of the view that 
the interpretation goes beyond the intent of the language of the 
underlying statute. Section 504 (a)(15) prohibits the Corporation from 
giving a grant to a recipient that ``participates in any litigation on 
behalf of a person incarcerated in a Federal, State, or local prison.'' 
The comments maintained that a mental health facility is not a prison. 
Prisons are generally understood to be penal institutions intended to 
house criminals, not persons with mental illnesses. One comment pointed 
out that, depending on the local law or police policies, persons may be 
arrested and charged for a minor crime, such as loitering, shoplifting, 
or disturbing the peace and then put in jail, only to be moved to a 
mental facility when they are determined to have psychological 
problems. Under the interim rule's interpretation, if a person were 
arrested under such circumstances and placed in a mental facility, that 
person would not be eligible for legal assistance from an LSC 
recipient. Another comment pointed out that such people are often 
indistinguishable in regard to their diagnosis or behavior from those 
in a mental health facility who are civilly committed. The Board agreed 
that the commentary's interpretation went beyond the intent of the 
statutory restriction and revised the definition of ``Federal, State or 
local prison'' so that the restriction clearly applies only to 
incarceration in a penal institution intended to house criminals.
    The term ``Federal, State or local prison'' is thus defined in this 
final rule as a ``penal facility maintained under governmental 
authority'' and includes local jails and private facilities under 
contract with State corrections departments to house convicted 
criminals. ``Incarcerated'' is defined as ``the involuntary physical 
restraint of a person who has been arrested for or convicted of a 
crime.''

Section 1637.3  Prohibition

    This section states the prohibition on participation in civil 
litigation on behalf of a person who is incarcerated in a Federal, 
State or local prison. It also prohibits recipients from representing 
such a person in any administrative proceeding challenging the 
conditions of incarceration.
    Given the definitions in Sec. 1637.2, the prohibition in this part 
would apply to pre-trial detainees even though they are persons who 
have not been convicted of a crime. Conversely, it would not apply to 
parolees and probationers, even though they are persons who have been 
convicted of a crime and are still under the jurisdiction of the 
corrections department, because they are no longer physically held in 
custody in a prison. The prohibition would also not apply to

[[Page 19422]]

juvenile offenders who have not been charged as adults because charges 
against juveniles are generally considered to be civil in nature. 
Finally, it would not apply to persons who are held involuntarily in 
mental health facilities.
    Intermittent imprisonment poses close questions, which will be 
resolved on a case-by-case basis by the Corporation, 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.

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 
special practical problems. 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 continued representation by the recipient 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. This exception for a 
brief incarceration does not permit a recipient to take on new issues 
or matters for the client during the brief incarceration.
    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. One comment urged the Corporation to deal with this 
issue by adding language to the text. The Board determined that a 
commentary discussion of the matter provides sufficient guidance to 
recipients. The LSC Act includes provisions requiring recipients to 
comply with the applicable codes of professional responsibility, and it 
is not necessary to include a reference to that requirement in every 
regulation where it might apply. Accordingly, whether continued 
representation in such circumstances would be deemed to violate the 
regulation will be determined on a case-by-case basis by the 
Corporation. Recipients are advised to document their efforts to 
withdraw and renew their efforts 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; Legal services; Prisoners

    For the reasons set forth in the preamble, 45 CFR Part 1637 is 
revised as follows:

PART 1637--REPRESENTATION 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: 42 U.S.C. 2996g(e); Pub. L. 104-208, 110 Stat. 3009; 
Pub. L. 104-134, 110 Stat. 1321.


Sec. 1637.1  Purpose.

    This part is intended to ensure that recipients do not participate 
in any civil litigation on behalf of persons incarcerated in Federal, 
State or local prisons.


Sec. 1637.2  Definitions.

    (a) Incarcerated means the involuntary physical restraint of a 
person who has been arrested for or convicted of a crime.
    (b) Federal, State or local prison means any penal facility 
maintained under governmental authority.


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: April 14, 1997.
Victor M. Fortuno,
General Counsel.
[FR Doc. 97-10032 Filed 4-18-97; 8:45 am]
BILLING CODE 7050-01-P