[Federal Register Volume 78, Number 213 (Monday, November 4, 2013)]
[Proposed Rules]
[Pages 65933-65936]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-26102]


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LEGAL SERVICES CORPORATION

45 CFR Part 1613


Restrictions on Legal Assistance With Respect to Criminal 
Proceedings

AGENCY: Legal Services Corporation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule updates the Legal Services Corporation (LSC 
or Corporation) regulation on legal assistance with respect to criminal 
proceedings. The Tribal Law and Order Act of 2010 (TLOA) amended the 
LSC Act to authorize LSC funds to be used for representation of persons 
charged with criminal offenses in tribal courts. This proposed rule 
will bring the regulations into alignment with the amended LSC Act. The 
proposed rule will also revise the conditions under which LSC 
recipients can accept or decline tribal court appointments to represent 
defendants in criminal proceedings.

DATE: Comments must be submitted by December 4, 2013.

ADDRESSES: Written comments must be submitted to Stefanie K. Davis, 
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. Written comments sent to any 
other address or received after the end of the comment period may not 
be considered by LSC.

FOR FURTHER INFORMATION CONTACT: Stefanie K. Davis, Assistant General 
Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 
20007, (202) 295-1563 (phone), (202) 337-6519 (fax), 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Statutory and Regulatory Background.

    The Corporation first issued 45 CFR part 1613 in 1976 to implement 
a statutory prohibition on the use of LSC funds to provide legal 
assistance in criminal cases. Section 1007 of the LSC Act prohibited 
the use of LSC funds to provide legal assistance ``with respect to any 
criminal proceeding.'' Public Law 93-355, Sec.  1007(b)(2), 88 Stat. 
383 (Jul. 25, 1974) (42 U.S.C. 2996f(b)(2)). The original section 
1613.2 defined ``criminal proceeding'' as ``the adversary judicial 
proceeding prosecuted by a public officer and initiated by a formal 
complaint, information, or indictment charging a person with an offense 
denominated `criminal' by applicable law and punishable by death, 
imprisonment, or a jail sentence. A misdemeanor or lesser offense tried 
in an Indian tribal court is not a `criminal proceeding.' '' 41 FR 
38506, Sept. 10, 1976. Neither the proposed rule nor the final rule 
explained why the Corporation exempted minor criminal cases in tribal 
courts from the general prohibition.
    The following year, Congress amended the LSC Act to codify the 
Corporation's exemption of minor crimes in tribal courts from the types 
of criminal proceedings for which LSC funds could not be used. Public 
Law 95-222, Sec.  10(b), 91 Stat. 1620-1623 (Dec. 28, 1977). According 
to the House Report on H.R. 6666, which became Public Law 95-222, it 
made this amendment at the Corporation's request. H.R. Rep. 95-310, 
1977 U.S.C.C.A.N. 4503, 4515-16 (May 13, 1977). The Committee on the 
Judiciary explained:

    Section 7(b)(2) permits a legal services program to provide 
representation in a very narrow category of technically criminal 
cases that may be viewed as basically civil in nature to a person 
charged with an offense involving hunting, fishing, trapping or 
gathering fruits of the land when the principal defense asserted 
involves rights arising from a treaty with Indians. A number of 
legal services programs have developed expertise in the highly 
specialized area of Indian treaty law. Prior to the passage of the 
Legal Services Corporation Act they provided assistance to Indians 
charged with criminal offenses when the defense arose out of an 
asserted treaty right. Because an effective defense depends on 
knowledge of treaty law, rather than of criminal law, state-
appointed private counsel and public defenders generally lack the 
legal background required to provide an effective defense.
    The provision of section 7(b)(2) authorizing representation of 
an Indian charged with a misdemeanor or lesser offense in an Indian 
tribal court is declaratory of existing law and codifies current 
Corporation Regulations.
    The committee approves the provisions of current Corporation 
Regulations, that appropriately define the scope of the prohibition 
against criminal representation and the narrow exceptions to the 
prohibition that are required for fulfillment of a lawyer's 
professional obligations and responsibilities.

    In 2010, Congress enacted the TLOA. The TLOA had two major effects 
on tribal criminal jurisdiction. First, it authorized tribal courts to 
impose longer sentences, raising the maximum duration from up to one 
year to a total of nine years for multiple charges. Public Law 111-211, 
Tit. II, Subtitle C, Sec.  234(a), 124 Stat. 2280 (Jul. 29, 2010). 
Second, it required tribes exercising the expanded sentencing authority 
to, ``at the expense of the tribal government, provide an indigent 
defendant the assistance of a defense attorney.'' Public Law 111-211, 
Tit. II, Subtitle C, Sec.  234(c)(2), 124 Stat. 2280. Of most relevance 
for LSC funding recipients, the TLOA amended section 1007(b)(2) of the 
LSC Act to authorize the use of LSC funds to provide representation in 
all criminal proceedings before tribal courts. Public Law 111-211, Tit. 
II, Subtitle C, Sec.  235(d), 124 Stat. 2282.
    Congress further expanded tribal court jurisdiction in 2013. 
Through the Violence Against Women Reauthorization Act of 2013 (2013 
VAWA), Congress amended the Indian Civil Rights Act of 1968 to 
authorize tribal courts to exercise special criminal jurisdiction over 
domestic violence cases. Public Law 113-4, Sec.  904(b)(1), 127 Stat. 
120-121 (Mar. 7, 2013) (25 U.S.C. 1304(a)). This ``special domestic 
violence criminal jurisdiction'' is exercised concurrently with state 
or Federal jurisdictions, or both, as applicable. Public Law 113-4, 
Sec.  904(b)(2), 127 Stat. 121 (25 U.S.C. 1304(b)(2)). Unlike prior 
congressional enactments, the 2013 VAWA explicitly authorizes tribes to 
exercise jurisdiction over both Indian and non-Indian defendants in 
certain circumstances.
    In order for the tribe to assert special domestic violence criminal 
jurisdiction, the alleged act must have occurred within Indian country. 
Public Law 113-4, Sec.  904(c), 127 Stat. 122. ``Indian country'' is a 
term of art defined in 8 U.S.C. 1151. If neither the victim nor the 
accused is Indian, the court may not exercise jurisdiction. Public Law 
113-4, Sec.  904(b)(4)(A)(i), 127 Stat. 121. If only the accused is a 
non-Indian, the court may exercise jurisdiction only if the accused 
resides in the Indian country over which the tribe has jurisdiction; is 
employed in the Indian country of the tribe; or is a spouse, intimate 
partner, or dating partner of a member of the tribe or an Indian who 
resides in the Indian country of the tribe. Public Law 113-4, Sec.  
904(b)(4)(B), 127 Stat. 122.
    The 2013 VAWA also introduced another set of crimes in Indian 
country for which defendants are entitled to counsel at the tribal 
government's expense. Section 904(d)(2) states that if a sentence of 
any length of time may be imposed, the defendant is entitled to all of 
the rights laid out in Section 202(c) of the Indian Civil Rights Act. 
Public Law 113-4, Sec.  904(d)(2), 127 Stat. 122.

[[Page 65934]]

The TLOA previously amended section 202(c) to require tribes exercising 
expanded criminal sentencing authority to provide counsel only to 
defendants facing total terms of imprisonment that would exceed one 
year. Public Law 111-211, Sec.  234(a), 124 Stat. 2280.
    In summary, the TLOA and the 2013 VAWA amended the Indian Civil 
Rights Act to expand both the sentencing authority and the jurisdiction 
of tribal criminal courts. The TLOA also amended the LSC Act to allow 
the use of LSC funds for representation of criminal defendants in 
tribal courts facing sentences of more than a year. LSC grant 
recipients now have the option of using their LSC funds to provide 
criminal representation. Additionally, because tribes must provide 
defendants with counsel at tribal government expense in certain 
circumstances, LSC recipients may be faced with increasing numbers of 
appointments to represent criminal defendants.

II. LSC Consideration of the Statutory Changes

    On January 25, 2013, the Operations and Regulations Committee (the 
Committee) of the LSC Board of Directors (the Board) voted to recommend 
that the Board authorize rulemaking to conform Part 1613 to the 
amendments to the LSC Act and to address recipients' concerns regarding 
criminal appointments. On January 26, 2013, the Board authorized the 
initiation of rulemaking.
    In response to the statutory changes described above, LSC sought 
input from experts in tribal law, including tribal court officials and 
practitioners, and the public to determine whether the Corporation 
needed to amend its regulations. LSC published a Request for 
Information (RFI) regarding the restrictions on legal assistance with 
respect to criminal proceedings in tribal courts. 78 FR 27341, May 10, 
2013. Additionally, during its July 22, 2013 meeting of the Board of 
Directors, the Committee heard from a panel of five experts in tribal 
law representing a variety of perspectives.
    During the July 22, 2013 panel presentation, the panelists' 
commentary focused on two main issues: the limited availability of 
resources to provide representation in criminal cases, and the 
political and cultural difficulties of representing defendants charged 
with domestic violence, particularly non-Indian defendants. One 
commentator noted that at the current time, LSC's Native American 
grants are too small to meet the existing needs of tribal communities. 
The clients tend to live far from the grantees' offices and from each 
other, requiring attorneys to travel long distances and incur expenses 
for gas and lodging. The costs associated with this travel and the 
limited funding available to cover them make it difficult to attend 
frequent court hearings. For this reason, the commentator did not 
anticipate LSC Native American grant recipients undertaking widespread 
representation under the TLOA. He recommended that any potential 
amendments to the regulations allow flexibility for recipients of LSC 
Native American grants to take on this type of representation if they 
determine it is a priority, but not to require grantees to do it.
    In a similar vein, a member of the Board raised a concern he had 
heard from recipients: that tribal courts would execute their 
responsibility to provide representation at tribal expense by simply 
appointing LSC-funded attorneys. One commentator concurred with the 
concern and recommended that any amendments to the rule provide the 
flexibility that the previous panelist preferred, but at the same time 
protect grantees from having to accept compulsory appointments. A third 
commentator followed up on a related question by opining that LSC-
funded grantees, as the attorneys working in tribal communities and 
conversant with tribal cultures, are better positioned to undertake 
expanded criminal representation than attorneys with expertise in 
criminal law, but with no background in Indian law or tribal 
communities.
    With respect to the policy of representing defendants in domestic 
violence cases, panelists generally agreed that doing so would raise 
thorny issues of parity among victims and defendants, as well as Indian 
and non-Indian defendants. Two panelists noted that their organizations 
approach domestic violence representation from the victim's perspective 
and would be reluctant to represent the defendant in a domestic 
violence case. One panelist also identified the possibility that 
representation of a defendant would prevent an LSC-funded organization 
from representing the alleged victim in the case, thereby reducing the 
amount of assistance available to victims. Similarly, the two panelists 
also stated opposition to using LSC Native American funds to represent 
non-Indian defendants in cases involving Indian victims. Their 
opposition arose out of both the potential use of Native American grant 
funding to represent non-Indian defendants, thereby reducing the amount 
of funding available to assist Indian victims, and to the need to 
ensure that if non-Indian defendants had access to counsel, Indian 
victims would have access to counsel as well.
    The RFI, published on May 10, 2013, asked commenters to answer 
questions about the impact of the TLOA and VAWA on criminal laws in 
tribal jurisdictions and on tribal appointments of defense counsel. 78 
FR 27341, May 10, 2013. The comment period closed on August 23, 2013. 
LSC received comments from three tribes, one tribal prosecutor, and one 
organization representing attorneys practicing in front of tribal 
courts. Of the four responding tribal entities, one does not exercise 
criminal jurisdiction, one indicated that it was not aware of any 
changes that the tribe would be making to its authority to hear and 
hand down sentences in criminal cases, one was in the process of 
reviewing its criminal laws to determine whether they needed amending 
to be consistent with the TLOA and VAWA, and one had received a grant 
to begin drafting a criminal code that would comply with TLOA and VAWA. 
Both of the tribes that are working on their criminal codes welcomed 
the ability of grantees to use LSC funds to represent defendants in all 
criminal matters, including domestic violence cases. One tribe invited 
LSC's involvement as it develops its domestic violence case policies 
and identified direct contracts between itself and LSC grantees as a 
way to ensure that it can fulfill its responsibility under TLOA to 
provide counsel to defendants in criminal cases. Another stated its 
opinion that representation of indigent defendants is hindered by a 
lack of funding, and that LSC funds could help provide proper 
representation for indigent defendants facing criminal charges in its 
tribal court.
    The representative organization's comments were substantially 
similar to some of the comments made by panelists at the July 22, 2013 
Committee meeting. For example, the organization reiterated that LSC's 
Native American grant funding is limited and inadequate to meet 
existing needs, such that requiring grantees to provide counsel in 
criminal proceedings would exacerbate financial pressures. It stated 
that the primary mission of LSC Native American grant recipients is to 
provide high-quality civil legal services in matters that uniquely 
affect tribes, such as ensuring that the rights of tribes and tribal 
members guaranteed by the Indian Child Welfare Act are protected. The 
organization also reiterated two additional concerns stated by 
panelists at the July 22, 2013 Committee meeting. The first was that a 
provider's

[[Page 65935]]

representation of a defendant in a domestic violence case would create 
a conflict of interest that would prevent the provider from providing 
legal assistance to the victim. The second was that requiring 
representation of criminal defendants could mean using the limited LSC 
Native American funding to represent non-Indian defendants in tribal 
criminal proceedings. Finally, the commenter recommended that LSC amend 
Part 1613 to be consistent with the TLOA and allow grantees the option 
of representing defendants in tribal criminal proceedings, but not 
require such representation.
    Pursuant to the LSC Rulemaking Protocol, LSC staff prepared a 
proposed rule amending Part 1613 with an explanatory rulemaking options 
paper. On October 22, 2013, the Board approved the proposed rule for 
publication in the Federal Register for notice and comment. A section 
by section discussion of the proposed rule is provided below.

III. Authority

    The authority is revised to update the provision of the LSC Act 
governing representation in criminal proceedings and reflect the change 
in authorization made by the Tribal Law and Order Act of 2010.

IV. Proposed Changes

1613.1 Purpose

    The Corporation proposes to revise this section to state that LSC 
grant recipients may not represent individuals in criminal proceedings 
unless authorized by Part 1613. Previously, this section only 
recognized that recipients were authorized to provide assistance in 
criminal proceedings if the attorney's responsibilities as a member of 
the bar required him to provide such assistance. The LSC Act has been 
amended twice to authorize criminal representation in tribal 
proceedings since the regulation was originally enacted in 1976, and 
the Corporation now proposes to amend Part 1613 to be consistent with 
those statutory amendments. For these reasons, the Corporation believes 
it is necessary to amend this section to recognize that, in addition to 
an attorney's professional responsibilities, Federal statutes and 
regulations may also authorize an LSC-funded attorney to undertake 
criminal representation.

1613.2 Definition

    The Corporation proposes to amend the definition of ``criminal 
proceeding'' to remove the exclusion of misdemeanors or lesser offenses 
in Indian tribal courts from the definition. This change is proposed 
for two reasons. First, removing the exclusion of misdemeanors or 
lesser offenses within tribal court jurisdiction would bring the rule 
into alignment with section 1007(b)(2) of the LSC Act, which authorizes 
LSC funds to be used for representation in criminal proceedings before 
Indian tribal courts. Second, removing the exclusion makes clear that 
criminal proceedings in Indian tribal courts are ``criminal 
proceedings'' subject to the provisions in proposed 1613.5.

1613.4 Authorized Representation

    The Corporation proposes to revise section 1613.4(a) to allow 
recipients to undertake criminal appointments after a determination 
that such appointment ``will not impair the recipient's primary 
responsibility to provide civil legal services.'' Under the current 
rule, recipients must determine that accepting a criminal appointment 
will be ``consistent with'' its primary responsibility to provide civil 
legal services. The Corporation believes that changing the standard to 
impairment of the recipient's primary responsibility to provide civil 
legal services will allow recipients to consider the impact a criminal 
appointment will have at a more meaningful level because it 
contemplates that such appointments may have a measurable impact on a 
recipient's financial and human resources.
    The existing language in section 1613.4(a) has been the subject of 
litigation in several jurisdictions in which trial courts appointed 
attorneys at LSC recipients in criminal cases over the Part 1613 
objection of the recipients. Courts have overwhelmingly upheld 
recipients' declinations of criminal appointments under section 
1613.4(a). See, e.g., Rehmann v. Maynard, 376 S.E.2d 169, 172 (W.Va. 
Dec. 21, 1988); Central Florida Legal Servs v. Perry, 406 So. 2d 111, 
113 (Fla. App. 1981). Courts considering this issue placed considerable 
weight on the recipients' determinations that an appointment was not 
consistent with their duty to provide civil legal services. See, e.g., 
Rehmann, 376 S.E.2d at 173 (``We conclude . . . that a circuit judge is 
prohibited by 42 U.S.C.S. 2996f(b)(2) (1974) and 45 CFR 1613.4 (1978) 
from appointing an attorney employed by a local legal services program 
that receives funds from the federal Legal Services Corporation to 
represent an indigent criminal defendant, where the local legal 
services program has made a formal policy determination that such 
criminal representation is inconsistent with its primary responsibility 
to provide legal assistance to eligible clients in civil matters.''); 
Central Florida Legal Servs, 406 So. 2d at 113; Central Florida Legal 
Servs. v. Eastmoore, 517 F.Supp. 497, 500 (M.D. Fla. 1981) (``[T]he 
CFLS attorneys may not represent criminal defendants in light of the 
CFLS determination that it does not have sufficient resources to devote 
to a criminal proceeding.''). Because the proposed change to section 
1613.4(a) does not affect a recipient's discretion to determine whether 
a particular court appointment will impair its ability to provide 
quality civil legal services, the Corporation believes that the 
precedents discussed above should continue to apply.

1613.5 Criminal Representation in Indian Tribal Courts

    The Corporation proposes to add a new section 1613.5 to address 
representation in criminal cases before Indian tribal courts and the 
circumstances under which recipients may accept a tribal court 
appointment to represent a criminal defendant. Subsection (a) 
reiterates the statutory authorization for LSC funds to be used for 
representation of a person charged with an offense in an Indian tribal 
court. Subsection (b) is similar to section 1613.4(a) in that it allows 
recipients to accept court appointments when the recipient determines 
that the appointment will not impair the recipient's primary 
responsibility to provide legal assistance to eligible clients in civil 
matters. The Corporation has incorporated the revised language from 
section 1613.4(a) into section 1613.5(b) to make clear that, consistent 
with the discussion of this language and related court precedents in 
section 1613.4 above, the recipient remains the final arbiter of 
whether accepting a criminal appointment from a tribal court will 
impair the recipient's responsibility to provide legal assistance to 
eligible clients in civil proceedings.
    Section 234 of the TLOA requires tribal courts exercising the 
expanded sentencing authority to provide indigent defendants with the 
assistance of a licensed attorney ``at the expense of the tribal 
government.'' In conjunction with the TLOA's amendment to the LSC Act 
authorizing the use of LSC funds for representation in any criminal 
proceeding in tribal court, this provision may lead to increased 
interest on the part of tribal courts to appoint recipient attorneys to 
serve as defense counsel. Indeed, in response to the RFI, two tribes 
commented that they welcome the increased ability of LSC recipients to 
use LSC funds to serve as defense counsel. Because the provision

[[Page 65936]]

requiring that tribes provide defense counsel at the tribes' expense 
and the provision authorizing LSC recipients to use LSC funds to 
provide criminal representation are not linked in the TLOA, it is 
unclear whether tribal courts will reimburse LSC recipients for 
providing representation pursuant to a tribal court appointment.
    Proposed section 1613.5(b) allows a recipient to consider whether 
accepting an appointment from an Indian tribal court will impair the 
recipient's responsibility to provide civil legal assistance. A 
recipient may evaluate many factors in determining whether impairment 
will occur, including but not limited to the recipient's civil legal 
workload, the recipient's program priorities, the recipient's existing 
expertise in tribal criminal law, the recipient's capacity to 
investigate and defend a criminal case competently, the frequency and 
number of proceedings in the case, and the distance to the court where 
the proceedings will take place. A recipient may also consider whether, 
and to what extent, the tribal court will compensate the recipient for 
accepting the appointment. The fact that a tribal court will or will 
not compensate the recipient may or may not be dispositive of whether 
the appointment will impair the recipient's responsibility to provide 
legal assistance in civil cases. It is within the recipient's 
discretion to determine what factors to consider and the weight to be 
given to each factor when deciding whether to accept a criminal 
appointment.

List of Subjects in 45 CFR Part 1613

    Crime, Grant programs--law, Legal services, Tribal.

    For the reasons stated in the preamble, and under the authority of 
42 U.S.C. 2996g(e), the Legal Services Corporation proposes to amend 45 
CFR Part 1613 as follows:

PART 1613--RESTRICTIONS ON LEGAL ASSISTANCE WITH RESPECT TO 
CRIMINAL PROCEEDINGS

0
1. The authority citation for Part 1613 is revised to read as follows:

    Authority: Sec. 234(d), Pub. L. 111-211, 124. Stat. 2282; 42 
U.S.C. 2996f(b)(2).

0
2. Revise Sec.  1613.1 to read as follows:


Sec.  1613.1  Purpose.

    This part is designed to ensure that Corporation funds will not be 
used to provide legal assistance with respect to criminal proceedings 
unless such assistance is authorized by this part.
0
3. Revise Sec.  1613.2 to read as follows:


Sec.  1613.2  Definition.

    Criminal proceeding means the adversary judicial process prosecuted 
by a public officer and initiated by a formal complaint, information, 
or indictment charging a person with an offense denominated 
``criminal'' by applicable law and punishable by death, imprisonment, 
or a jail sentence.
0
4. Revise Sec.  1613.4(a) to read as follows:


Sec.  1613.4  Authorized representation.

* * * * *
    (a) Pursuant to a court appointment made under a statute or a court 
rule of equal applicability to all attorneys in the jurisdiction, if 
authorized by the recipient after a determination that acceptance of 
the appointment would not impair the recipient's primary responsibility 
to provide legal assistance to eligible clients in civil matters.
* * * * *
0
5. Add Sec.  1613.5 to read as follows:


Sec.  1613.5  Criminal representation in Indian tribal courts.

    (a) Legal assistance may be provided with Corporation funds to a 
person charged with a criminal offense in an Indian tribal court who is 
otherwise eligible.
    (b) Legal assistance may be provided in a criminal proceeding in an 
Indian tribal court pursuant to a court appointment only if the 
appointment is made under a statute or a court rule or practice of 
equal applicability to all attorneys in the jurisdiction, and is 
authorized by the recipient after a determination that acceptance of 
the appointment would not impair the recipient's primary responsibility 
to provide legal assistance to eligible clients in civil matters.

    Dated: October 29, 2013.
Atitaya C. Rok,
Staff Attorney.
[FR Doc. 2013-26102 Filed 11-1-13; 8:45 am]
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