Proposed Rule2023-23568
Restriction on Solicitation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
October 25, 2023
Issuing agencies
Legal Services Corporation
Abstract
This proposed rule revises the Legal Services Corporation (LSC or Corporation) regulation prohibiting solicitation of clients. LSC proposes to add definitions for "communicate" and "communication," revise the existing text to make language more active, and clarify how recipients may interact with client-eligible individuals. The main goal of these revisions is to formalize the interpretations that the Office of Legal Affairs has issued over the past several years, making clear that recipients may inform client eligible individuals about their rights and responsibilities and provide them with information about the recipient's intake process, as well as how recipients may relay that information without violating either LSC's Fiscal Year 1996 appropriations statute or LSC's regulations.
Full Text
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<title>Federal Register, Volume 88 Issue 205 (Wednesday, October 25, 2023)</title>
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[Federal Register Volume 88, Number 205 (Wednesday, October 25, 2023)]
[Proposed Rules]
[Pages 73303-73305]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23568]
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LEGAL SERVICES CORPORATION
45 CFR Part 1638
Restriction on Solicitation
AGENCY: Legal Services Corporation.
ACTION: Notice of proposed rulemaking.
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SUMMARY: This proposed rule revises the Legal Services Corporation (LSC
or Corporation) regulation prohibiting solicitation of clients. LSC
proposes to add definitions for ``communicate'' and ``communication,''
revise the existing text to make language more active, and clarify how
recipients may interact with client-eligible individuals. The main goal
of these revisions is to formalize the interpretations that the Office
of Legal Affairs has issued over the past several years, making clear
that recipients may inform client eligible individuals about their
rights and responsibilities and provide them with information about the
recipient's intake process, as well as how recipients may relay that
information without violating either LSC's Fiscal Year 1996
appropriations statute or LSC's regulations.
DATES: Comments must be submitted by December 26, 2023.
ADDRESSES: You may submit comments by any of the following methods:
<bullet> Federal eRulemaking Portal: <a href="http://www.regulations.gov">http://www.regulations.gov</a>.
Follow the instructions for submitting comments.
<bullet> Email: <a href="/cdn-cgi/l/email-protection#274b544455524b424a464c4e4940674b544409404851"><span class="__cf_email__" data-cfemail="0d617e6e7f786168606c6664636a4d617e6e236a627b">[email protected]</span></a>. Include ``Comments on
Revisions to Part 1638'' in the subject line of the message.
<bullet> Mail: Elijah Johnson, Assistant General Counsel, Legal
Services Corporation, 3333 K Street NW, Washington, DC 20007, ATTN:
Part 1638 Rulemaking.
<bullet> Hand Delivery/Courier: Elijah Johnson, Assistant General
Counsel, Legal Services Corporation, 3333 K Street NW, Washington, DC
20007, ATTN: Part 1638 Rulemaking.
Instructions: Electronic submissions are preferred via email with
attachments in Acrobat PDF format. LSC will not consider written
comments sent to any other address or received after the end of the
comment period.
FOR FURTHER INFORMATION CONTACT: Elijah Johnson, Assistant General
Counsel, Legal Services Corporation, 3333 K Street NW, Washington, DC
20007; (202) 295-1638 (phone), or <a href="/cdn-cgi/l/email-protection#f9939691978a96979cb9958a9ad79e968f"><span class="__cf_email__" data-cfemail="96fcf9fef8e5f9f8f3d6fae5f5b8f1f9e0">[email protected]</span></a>.
SUPPLEMENTARY INFORMATION:
I. Background
On April 26, 1996, Congress passed the appropriations act for
Fiscal Year 1996. Public Law 104-134, 110 Stat. 1321. Through this
statute, Congress enacted a series of restrictions applicable to LSC
grant recipients' activities. One of the restrictions was section
504(a)(18), which states that grant recipients
will not accept employment resulting from in-person unsolicited
advice to a nonattorney that such nonattorney should obtain counsel
or take legal action, and will not refer such nonattorney to another
person or entity or an employee of the person or entity, that is
receiving financial assistance provided by the Corporation[.]
Public Law 104-134, 110 Stat. 1321, 1321-56.
On May 19, 1996, the Operations and Regulations Committee of the
LSC Board requested LSC staff to prepare an interim rule to implement
section 504(a)(18), and in April 1997, LSC promulgated part 1638.
Consistent with section 504(a)(18), LSC's rule prohibited a grant
recipient from representing an individual who had not sought legal
advice from the grant recipient but was advised to seek legal
representation or take legal action by the grant recipient. Part 1638
also prohibits grant recipients who have given in-person unsolicited
advice to an individual from referring the individual receiving the
advice to
[[Page 73304]]
another LSC grant recipient. Id. Finally, LSC included language in part
1638 stating that providing legal information, including information
about the availability of counsel and a grant recipient's intake
procedures, are permissible activities. 45 CFR 1638.4(a).
The broad definition of ``in-person'' may restrict more conduct
than Congress intended when it enacted the prohibition on client
solicitation. Section 504(a)(18) applies only to ``in-person advice.''
It does not mention ``personal encounters via other means of
communication,'' which part 1638 does. 45 CFR 1638.2(a). Congress
appears to have based section 504(a)(18) on ABA Model Rule 7.3, which
generally prohibits ``in-person, live telephone, or real-time
electronic communications.'' Model Rule 7.3 also prohibits solicitation
through ``written, recorded or electronic communications,'' but only
when such communications are abusive. Thus, part 1638's inclusion of
``a personal letter'' in the definition of ``in-person'' goes beyond
the statutory language of section 504(a)(18) and the use of the same
term by ABA Model Rule 7.3. The ABA updated Rule 7.3 in 2013. The
changes, among other things, added electronic communications and
reinforced the distinction between in-person contacts and written
contacts (an electronic contact is in the same category as an ``in-
person'' contact only when it is a ``real-time electronic contact.'').
The regulation's existing language has caused grantees to question
whether they can provide information about the individuals' legal
rights and the availability of legal assistance through texts, phone
calls, and in-person contacts at court clinics. Over the years, OLA has
received multiple inquiries from grant recipients and other
stakeholders about what proposed outreach activities are permissible
under part 1638. Some of the examples include:
<bullet> sending text messages explaining defendants' rights to
unrepresented individuals in eviction cases;
<bullet> informing individuals of the availability of legal
assistance via mailings and text messages; and
<bullet> individuals approaching grant recipient attorneys at
court-based self-help clinics.
In July 2003, OLA published an advisory opinion answering a
question from the Northwest Justice Project (``NJP''). NJP asked
whether they could hand out informational brochures to individuals in
the courthouse as part of their administration of the Housing Justice
Program (``HJP''). The HJP provided same-day advice and representation
from volunteer attorneys to LSC-eligible clients in eviction
proceedings in court. The previous coordinator of the HJP, a non-LSC-
funded organization, contacted prospective clients at the courthouse,
advised them of the availability of services, asked if they would like
to discuss their case with a lawyer, and represented some the same day.
Upon assuming operation of the program, NJP stopped engaging in direct
contact and submitted its inquiry to LSC. NJP contacted LSC because it
was concerned that the lack of direct client engagement had led to a
decline in the usage of HJP services. LSC confirmed that under part
1638, it would be impermissible for NJP to communicate with prospective
clients at the courthouse to advise them of the availability of legal
services and ask individuals if they wanted to discuss their case with
a lawyer and then accept those individuals as clients. EX-2003-1011,
June 9, 2003. This advisory opinion remained LSC's position until 2016.
In 2016, OLA received a question from a law professor who was
researching methods for increasing the likelihood that individuals
living in poverty would engage with the legal system, including by
seeking free legal services. The study proposed to test the
effectiveness of different types of mailings sent to defendants in debt
collection cases. The professor asked OLA whether part 1638 prohibits a
grant recipient from representing individuals to whom the grant
recipient has mailed information regarding their rights and identifying
the types of legal services provided by the grant recipient. AO 2016-
001. OLA opined that a mailing from an LSC grant recipient would
violate part 1638 if it provided (1) ``unsolicited advice'' and (2)
constituted a ``personal letter.'' Id. OLA also stated that a mailing
that contains only ``information regarding legal rights and
responsibilities or . . . information regarding the recipient's
services and intake procedures'' does not constitute ``unsolicited
advice.'' Further, a mailing does not constitute a ``personal letter''
if the letter provides only generic information that is not tailored to
the individual receiving the mailing and it does not include specific
facts related to the individual's legal issues. Id. OLA concluded that
a mailing that contains unsolicited advice that is not tailored to the
individual receiving the mailing is not considered a ``personal
letter'' under Sec. 1638.2(a). Id.
In 2020, OLA issued an advisory opinion about part 1638 that
addressed a question involving the permissibility of a grant recipient
representing individuals that it had either (1) contacted over the
telephone or via text message; or (2) initiated contact with through
the grant recipient's ongoing presence in the courthouse. Regarding in-
person contact in courthouses, OLA confirmed that part 1638 does not
prohibit a grant recipient from initiating contact with individuals if
the grant recipient is providing ``information regarding legal rights
and responsibilities'' or providing information about the grant
recipient's intake process while ``. . . maintain[ing] an ongoing
presence in a courthouse to provide advice at the invitation of the
court[.]'' AO 2020-004. Additionally, part 1638 does not prohibit grant
recipients from representing an individual that the grant recipient
initiated contact with over the telephone or via text message as long
as the communication contains only generic information that is not
tailored to the individual or the specific facts of the individual's
legal issues. Id.
LSC issued its most recent guidance on part 1638 in 2022. In
Program Letter 22-1, LSC advised that grant recipients could send text
messages to defendants (tenants) in landlord/tenant cases to notify
them that an eviction case has been filed against them; to let them
know of any upcoming court appearances; and to inform them of the
availability of counsel. Program Letter 22-1. The program letter cited
previous guidance from OLA regarding unsolicited advice via text
message and mail.
LSC believes regulatory action is justified at this time for two
reasons. First, OLA has been applying a nearly thirty-year-old rule
concerning communications to new technologies and outreach strategies
developed since part 1638 was published. Second, regulatory action is
justified because LSC has continued to receive questions from grantees
and other stakeholders about whether certain proposed outreach
activities are permissible under part 1638. These questions have become
more compelling as governments began lifting moratoria on filing
evictions and pursuing debt collection cases that they had put into
place near the beginning of the COVID-19 pandemic. Rulemaking to make
part 1638 more consistent with the language of section 504(a)(18) has
become more critical to helping grantees inform people living in
poverty who are facing eviction or potentially significant financial
consequences about their rights and the availability of attorneys to
assist them.
On July 25, 2023, the Operations and Regulations Committee voted to
[[Page 73305]]
recommend that the Board authorize rulemaking on part 1638. On July 27,
2023, the Board authorized LSC to begin rulemaking. On October 16,
2023, the Committee voted to recommend that the Board authorize
publication of this NPRM in the Federal Register for notice and
comment. On October 17, 2023, the Board accepted the Committee's
recommendation and voted to approve publication of this NPRM.
II. Proposed Changes
Sec. 1638.1 Purpose
LSC proposes to make no changes to this section.
Sec. 1638.2 Definitions
LSC proposes to add a definition for the terms communicate and
communication that pertains to mailed, emailed, and texted messages, as
opposed to merely in-person engagements. With additional technology
since the inception of this prohibition, this change will provide
greater flexibility and clarity around the methods of communication
that are permitted. This is not intended to require recipients to use
various methods to reach client-eligible individuals; rather it
clarifies which methods are permissible.
LSC also proposes to amend the definition of the term in-person to
include virtual engagements such as clinics conducted via Zoom or other
videoconferencing software. LSC proposes to make this change to reflect
the transition, hastened by the COVID-19 pandemic, to the provision of
legal services through virtual means in addition to traditional in-
person engagements.
Finally, to account for adding a new definition, LSC proposes to
redesignate existing paragraph (b), defining the term unsolicited
advice, as paragraph (c).
Sec. 1638.3 Prohibition
LSC proposes to edit the text to be active as opposed to passive.
For example, ``shall not represent'' would replace ``are prohibited
from representing.''
Sec. 1638.4 Permissible Activities
LSC proposes to edit the text to be active as opposed to passive.
Additionally, LSC proposes to revise Sec. 1638.4(a) to permit
communication and in-person engagement about individuals' legal rights
and responsibilities and grantees' intake procedures. LSC believes that
the proposed language should be clearer that grantees are permitted to
send individuals information about rights and responsibilities that
could lend itself to individuals filing complaints, either pro se or
with the assistance of counsel. This instance may arise in the context
of housing cases; for example, in housing habitability and tenant
building purchase cases. A grantee may discover that there is a
building with numerous safety issues and communicate with the tenants
about the warranty of habitability, their options for getting the
landlord to make repairs, including affirmative litigation, and the
grantee's intake process. After receiving such legal information, some
tenants could conceivably apply for legal assistance to help them
pursue legal action to force repairs. This approach is consistent with
the text of section 504(a)(18) of LSC's 1996 appropriation statute,
which speaks in general terms about prohibited solicitation. It is
critical to closing the justice gap that grantees are aware that they
can advise their client-eligible communities about issues for which
affirmative litigation may be an appropriate solution.
Further, LSC proposes to add paragraphs (c) and (e) to incorporate
OLA's interpretations of existing part 1638 and the guidance LSC
provided in PL 22-1. Finally, LSC proposes to redesignate existing
paragraph (c) as paragraph (d) and to revise new paragraph (d) to
replace the phrase ``physically or mentally disabled'' with the person-
first term ``living with a physical or mental disability.''
Sec. 1638.5 Recipient Policies
LSC proposes no changes to this section.
List of Subjects in 45 CFR Part 1638
Grant programs--law, Legal services.
For the reasons set forth in the preamble, the Legal Services
Corporation proposes to amend 45 CFR part 1638 as follows:
PART 1638--RESTRICTION ON SOLICITATION
0
1. Revise the authority citation for part 1638 to read as follows:
Authority: 42 U.S.C. 2996g(e).
0
2. Revise Sec. 1638.2 to read as follows:
Sec. 1638.2 Definitions.
(a) Communicate or communication means to share information.
Permissible forms of communication include, but are not limited to,
sending information via mailings, text message, email, or other methods
of voice or electronic communication.
(b) In-person means a face-to-face encounter, including virtual
clinics or other encounters via videoconference.
(c) Unsolicited advice means advice to obtain counsel or take legal
action given by a recipient or its employee to an individual who did
not seek the advice and with whom the recipient does not have an
attorney-client relationship.
0
3. Revise Sec. 1638.3 to read as follows:
Sec. 1638.3 Prohibition.
(a) Recipients and their employees shall not represent a client as
a result of in-person unsolicited advice.
(b) Recipients and their employees shall not refer to other
recipients individuals to whom they have given in-person unsolicited
advice.
0
4. Revise Sec. 1638.4 to read as follows:
Sec. 1638.4 Permissible activities.
A recipient may:
(a) Communicate about legal rights and responsibilities or the
recipient's services and intake procedures or provide the same
information through community legal education activities such as
outreach, public service announcements, maintaining an ongoing presence
in a courthouse to provide advice at the invitation of the court,
disseminating community legal education publications, and giving
presentations to groups that request them.
(b) Communicate to parties in civil cases to notify them that a
case has been filed against them; to inform them of upcoming court
dates; to inform them that counsel may be available to represent them;
and to provide information about intake.
(c) Represent an otherwise eligible individual seeking legal
assistance from the recipient as a result of a communication or
information provided as described in Sec. 1638.4(a), provided that the
request has not resulted from in-person unsolicited advice.
(d) Represent or refer clients pursuant to a statutory or private
ombudsman program that provides investigatory and referral services
and/or legal assistance on behalf of persons who are unable to seek
assistance on their own, including those who are institutionalized or
living with a physical or mental disability.
(e) Represent an individual with whom the recipient initiated
contact over the phone or via an electronic platform so long as the
communication provides only generic information that is not tailored to
the individual or the specific facts of the individual's legal issues.
Dated: October 20, 2023.
Stefanie Davis,
Deputy General Counsel for Regulations and Ethics Officer, Legal
Services Corporation.
[FR Doc. 2023-23568 Filed 10-24-23; 8:45 am]
BILLING CODE 7050-01-P
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