[Federal Register Volume 78, Number 155 (Monday, August 12, 2013)]
[Proposed Rules]
[Pages 48848-48851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19383]
=======================================================================
-----------------------------------------------------------------------
LEGAL SERVICES CORPORATION
45 CFR Part 1614
Private Attorney Involvement
AGENCY: Legal Services Corporation.
ACTION: Revised notice of rulemaking workshop and request for comments
and expressions of interest in participating in the rulemaking
workshop.
-----------------------------------------------------------------------
SUMMARY: The Legal Services Corporation (LSC) is conducting two
Rulemaking Workshops (Workshops), as noticed at 78 FR 27339 (May 10,
2013), and is requesting public comments on revising LSC's Private
Attorney Involvement (PAI) rule to respond to
[[Page 48849]]
Recommendation 2 of LSC's Pro Bono Task Force (PBTF) Report. The
discussions in the Workshops and the other comments received will be
considered in connection with rulemaking by LSC.
On July 23, 2013, LSC hosted the first of the two Workshops. LSC
solicits expression of interest in participating as a panelist in the
second Workshop on September 17, 2013, from the recipient community,
the organized bar, pro bono organizations, and other interested
parties. In preparation for that workshop, LSC is publishing the
additional questions below. Additionally, LSC is extending the deadline
for comments and expressions of interest for that Workshop. The new
deadline is August 28 at 5:30 p.m. Eastern Daylight Time. The final
deadline for all comments in this stage of rulemaking remains October
17, 2013, at 5:30 p.m. Eastern Daylight Time.
DATES: Three deadlines are set out in this notice. Submissions that do
not follow the directions in this notice, or that are received after a
deadline has passed, may not be considered by LSC, in its discretion.
(1) The deadline of August 20, 2013, in the May 10, 2013, Notice is
hereby extended to August 28, 2013. Expressions of interest in
participating as a panelist in the second Workshop must be received by
5:30 p.m. EDT on August 28, 2013. Written comments for consideration at
the second Workshop regarding (a) the revision of LSC's PAI rule, 45
CFR part 1614, to respond to Recommendation 2 of the PBTF Report, or
(b) additions, deletions, or modifications to the Topics for Discussion
in the Workshop, including relevant alternatives, must be received by
the same deadline of 5:30 p.m. EDT on August 28, 2013.
(2) Non-panelist public participants for the second Workshop must
register with LSC by 5:30 p.m. EDT on September 6.
(3) All written comments on revising the PAI rule, 45 CFR part
1614, in response to Recommendation 2 of the PBTF Report must be
received by 5:30 p.m. EDT on October 17, 2013.
ADDRESSES: Written materials, expressions of interest, and registration
for the workshops must be submitted to Mark Freedman, Senior Assistant
General Counsel, Legal Services Corporation, 3333 K Street NW.,
Washington, DC 20007; 202-337-6519 (fax); or [email protected].
Electronic submissions are preferred via email with attachments in
Acrobat PDF format.
FOR FURTHER INFORMATION CONTACT: Mark Freedman, Senior Assistant
General Counsel, Legal Services Corporation, 3333 K Street NW.,
Washington, DC 20007; (202) 295-1623 (phone); 202-337-6519 (fax); or
[email protected].
SUPPLEMENTARY INFORMATION:
I. Background Information
On January 26, 2013, the LSC Board of Directors (LSC Board) voted
to authorize LSC to initiate rulemaking to consider revisions to 45 CFR
part 1614--Private Attorney Involvement (PAI) to respond to
Recommendation 2 of the LSC Pro Bono Task Force (PBTF) Report,
available at: http://bit.ly/LSCPBTF-Report. Part 1614 is designed to
ensure that recipients of Legal Services Corporation funds involve
private attorneys in the delivery of legal assistance to eligible
clients. 45 CFR 1614.1. With certain exceptions, a recipient of LSC
funding is required to devote an amount equal to at least 12\1/2\% of
the recipient's LSC annualized basic field award to the involvement of
private attorneys in the delivery of legal services to eligible
clients. Id.
Recommendation 2 of the PBTF Report suggests LSC should reexamine
the regulation in three areas, which are the three Topics for
Discussion for this rulemaking:
Topic 1: Resources spent supervising and training law students, law
graduates, deferred associates, and others should be counted toward
grantees' PAI obligations, especially in ``incubator'' initiatives;
Topic 2: Grantees should be allowed to spend PAI resources to
enhance their screening, advice, and referral programs that often
attract pro bono volunteers while serving the needs of low-income
clients; and
Topic 3: LSC should reexamine the rule that mandates adherence to
LSC grantee case handling requirements including that matters be
accepted as grantee cases in order for programs to count toward PAI
requirements.
On April 16, 2013, the LSC Board voted to convene two Workshops in
connection with the rulemaking. On May 10, 2013, LSC published a notice
in the Federal Register at 78 FR 27339 (May 10, 2013) regarding the
Workshops and seeking comments on the potential rulemaking. https://federalregister.gov/a/2013-11071. The first Workshop was held in
connection with LSC's Board meeting in Denver, Colorado on July 23,
2013. The second Workshop will be held on September 17, 2013, at the F.
William McCalpin Conference Center, Legal Services Corporation
Headquarters, 3333 K Street NW., Washington, DC 20007, from 1:30 p.m.-
4:30 p.m. EDT. Participants are invited to attend in person, via
webinar, or telephonically. Information about how to participate,
materials regarding this rulemaking, and materials from the first
Workshop are available on LSC's Web site at http://bit.ly/PAIrulemakingdetails.
II. Nature of the Workshops
Rulemaking workshops enable LSC to meet with interested parties to
discuss, but not negotiate, LSC rules and regulations. The Workshops
for the PAI rule are meetings at which the panelists and participants
hold open discussions to share ideas regarding how to revise the PAI
rule in a manner responsive to the Recommendation 2 of LSC's Pro Bono
Task Force Report.
III. Public Participation: Panelists and Open Comment
LSC is inviting expressions of interest from the public to
participate in the second Workshop as a panelist. Expressions of
interest in participating as a panelist should be submitted, in
writing, to LSC at the address above before the stated deadline. LSC
will select panelists shortly thereafter and will inform all those who
expressed interest whether or not they have been selected.
Expressions of interest must include:
(1) A brief outline of the key points that you would like to make
as they relate to the three topics and items of interest identified in
the May 10, 2013, Notice and the additional questions identified in
this Notice;
(2) a summary of your qualifications; and
(3) a completed checklist of the topics and items that you will
address, including the additional questions identified below. The
checklist will be available at the Workshop Web site at: http://bit.ly/PAIrulemakingdetails.
The Workshop will be open to public observation, and portions of
the Workshop will be open for public comment from in-person, webinar,
and telephone participants (who must register for the webinar to
comment via the telephone). Participants other than selected panelists
must register with LSC before 5:30 p.m. EST on September 6, 2013, to
ensure that sufficient arrangements can be made for their
participation. Panelists and in-person participants are expected to
cover their own expenses (travel, lodging, etc.). LSC may consider
providing financial assistance to a panelist for whom travel costs
would represent a significant
[[Page 48850]]
hardship and barrier to participation. Any such person should so note
in his/her expression of interest for LSC's consideration.
Beginning with the May 10, 2013, Notice, LSC has an open comment
period through October 17, 2013, regarding revisions to 45 CFR part
1614 to respond to Recommendation 2 of the PBTF Report. LSC welcomes
written comments during the comment period and will consider the
comments received in the rulemaking process. Written comments received
prior to the Workshop may be addressed in the Workshop. Written
comments must be submitted as per the directions above and the
deadlines indicated.
IV. Topics for Discussion
The May 10, 2013, Notice identified the three topics and items for
discussion for the Workshops and written comments. Each topic is taken
directly from the three suggestions in Recommendation 2 of the PBTF
Report stated above. Members of the public are welcome to recommend
additions, deletions, or modifications to these Topics for Discussion,
including relevant alternatives, for LSC's consideration through
written comments submitted prior to the second Workshop.
The May 10, 2013, Notice, topics, items for discussion, additional
background information on each of these topics, and materials from the
first Workshop are located at the PAI Workshops Web page at http://bit.ly/PAIrulemakingdetails.
V. Additional Questions
The May 10, 2013, Notice contained the three Topics for Discussion
and a number of specific items for each topic. The following questions
seek specific proposals to address in greater detail the issues raised
by those topics and items. LSC asks for comments that address these
specific questions with concrete examples or proposals. LSC asks that
panelists identify in the expressions of interest which of these
questions they will address, and to submit as comments concrete
examples or proposals for discussion. The original topics and items are
also on the agenda, but these questions are meant to focus the
discussion.
A. Scope of Part 1614.
Topics 1 and 2 both raise questions regarding the definition of a
private attorney for purposes of Part 1614. These topics also raise
questions about the purpose of the Part 1614 rule and what work meets
the Part 1614 requirements. The definition of a private attorney
combines elements of the private attorney definition in 45 CFR
1614.1(d), the staff attorney definition in 45 CFR 1600.1, and the
attorney definition in 45 CFR 1600.1. Based on the regulations and
LSC's interpretation and application of them, the current definition
for private attorney can be paraphrased as follows:
A private attorney is an attorney who:
1. Provides legal assistance to eligible clients; and
2. Is authorized to practice law in the jurisdiction where assistance
is rendered; and
3. Earns one half or less of her annual professional income from
either:
a. a grant from LSC; or
b. from a recipient, subrecipient, grantee, or contractor,
including:
i. an LSC basic field program; or
ii. a subrecipient of an LSC recipient that is a staff-model legal
services program primarily providing civil legal assistance to low-
income persons; and
receives an LSC subgrant under 45 CFR part 1627; or
receives a Part 1614 subgrant using non-LSC funds.
This definition is based on the attorney's income and does not
consider the hours worked or the nature of the attorney's legal
practice (for-profit, non-profit, public interest, government, etc.).
The following questions involve the scope of this definition for the
primary Part 1614 activities that constitute ``involvement of private
attorneys'' in the delivery of legal services to eligible clients.
These questions do not address the scope of related work, such as
screening and administrative support, that may involve non-attorneys in
secondary Part 1614 functions.
Topic 1:
1. Please provide specific suggestions for definitions, limits, or
guidelines relating to the potential addition of law students, pre-
admission law graduates, or paralegals to the scope of Part 1614
activities.
2. Are there any other categories of non-lawyers whose work should
be considered for inclusion in Part 1614?
3. If you recommend changing the definition of a private attorney,
then please provide specific recommendations addressing the scope of
the definition and how the proposed definition relates to the purpose
of the rule.
4. Please provide specific suggestions relating to the potential
inclusion in Part 1614 of underemployed attorneys receiving reduced
fees (e.g., in ``incubator projects'') that may be their primary
professional income.
5. Please provide specific suggestions relating to the potential
inclusion in Part 1614 of attorneys who are not authorized to practice
law in the jurisdiction of the LSC recipient but who may provide legal
information or other Part 1614 services if permitted under local bar
rules.
Topic 2:
6. Should Part 1614 include the use of non-LSC funds as a subgrant
to provide support to attorneys working at a staff-attorney model legal
aid program that receives no LSC funds? This question specifically
addresses the situation in Advisory Opinion 2009-1004. Please identify
how involving attorneys at non-LSC, staff-attorney model legal aid
programs relates to the purposes of Part 1614.
B. Tracking and Accounting for Part 1614 Work
Topics 2 and 3 both raise questions about how Part 1614 work should
be tracked and accounted for. The Pro Bono Task Force and many
panelists at the first workshop suggested that the LSC definition of
cases and the related case management system requirements are not well
suited for Part 1614.
1. What criteria and methods should LSC recipients use to identify
and track Part 1614 services to provide sufficient information for
reporting and accountability purposes about attempts to place eligible
clients with private attorneys, or others, and the outcome of those
efforts?
2. Please identify what criteria should apply to referral placement
organizations, such as bar association programs, for them to qualify
for Part 1614.
3. Please identify how LSC recipients can account for and track PAI
services while not creating conflicts for the recipient regarding
future representation of clients, consistent with local bar rules.
C. Support for Unscreened Work of Private Attorney Clinics
Topic 3 raises the question of LSC recipients providing support to
clinics hosted by other organizations (or co-sponsored) that involve
private attorneys in providing legal assistance without screening for
LSC eligibility. Part 1614 eligibility for these situations involves
both tracking issues (section B above) and subsidization issues. These
questions specifically address Advisory Opinion 2008-1001.
1. Should LSC permit LSC recipients to obtain some credit under
Part 1614 for support for these clinics if they do not screen for LSC
eligibility and the clinics may provide services to both eligible and
ineligible clients? Please
[[Page 48851]]
provide specifics about screening concerns and methods to address them.
2. Should eligibility screening in these clinics for Part 1614 be
the same as regular intake screening for LSC recipients or different?
If different, then please identify methods or criteria for screening.
3. Please identify methods or criteria for LSC to ensure that LSC
recipients providing support to these clinics, if permitted, are not
improperly subsidizing either services to ineligible individuals or
impermissible activities.
4. Please identify methods or criteria to distinguish between
permissible activities supporting other entities and attorneys, such as
general trainings, and impermissible subsidization.
VI. Format of the September Workshop
The Workshop will include a panel discussion of the Topics for
Discussion and related questions and items identified in the May 10,
2013, Notice and this Notice. Panelists will be selected to represent a
diversity of opinions and perspectives.
In addition to the panel, LSC encourages observation and
participation by all interested individuals and organizations. The
meeting agenda will include opportunities for individuals who are not
members of the panel to provide public comments in person, by webinar,
or via telephone (webinar registration is required to comment by
telephone). LSC plans to transcribe the meetings and make the webinar
recording available on its Web site.
By September 12, 2013, LSC will post the final agenda for the
September Workshop on the PAI Workshops Web page at http://bit.ly/PAIrulemakingdetails.
VII. Important Notes
Information received in response to this Notice of Rulemaking
Workshops and Request for Expressions of Interest in Participation in
the Rulemaking Workshops may be published or summarized by LSC without
acknowledgement of, or permission from, you or your organization.
Furthermore, your responses may be releasable to the public under the
Freedom of Information Act (FOIA), 42 U.S.C. 2996d, and the LSC FOIA
regulation, 45 CFR part 1619. LSC, at its discretion, may request
individual commenters to elaborate on information in their written
comments.
Dated: August 6, 2013.
Atitaya C. Rok,
Staff Attorney.
[FR Doc. 2013-19383 Filed 8-9-13; 8:45 am]
BILLING CODE 7050-01-P