Private Attorney Involvement, 48848-48851 [2013-19383]

Agencies

• LEGAL SERVICES CORPORATION

[Federal Register Volume 78, Number 155 (Monday, August 12, 2013)]
[Proposed Rules]
[Pages 48848-48851]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-19383]


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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.

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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 pairulemaking@lsc.gov. 
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 
pairulemaking@lsc.gov.

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: https://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 https://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: https://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 https://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 https://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