Rule2024-07761
Restriction on Solicitation
Primary source
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Published
April 12, 2024
Effective
May 13, 2024
Issuing agencies
Legal Services Corporation
Abstract
This final rule revises the Legal Services Corporation's (LSC or Corporation) regulation prohibiting solicitation of clients. LSC adds definitions for the terms "communicate" and "communication," revises the existing text to make language more active, and clarifies how recipients may interact with client-eligible individuals. The main goal of these revisions is to formalize the interpretations of LSC's rule on solicitation that the Office of Legal Affairs (OLA) 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 recipients' intake processes, as well as how recipients may relay that information without violating either LSC's Fiscal Year 1996 appropriations statute or the rule prohibiting solicitation.
Full Text
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<title>Federal Register, Volume 89 Issue 72 (Friday, April 12, 2024)</title>
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[Federal Register Volume 89, Number 72 (Friday, April 12, 2024)]
[Rules and Regulations]
[Pages 25813-25816]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-07761]
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LEGAL SERVICES CORPORATION
45 CFR Part 1638
Restriction on Solicitation
AGENCY: Legal Services Corporation.
ACTION: Final rule.
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SUMMARY: This final rule revises the Legal Services Corporation's (LSC
or Corporation) regulation prohibiting solicitation of clients. LSC
adds definitions for the terms ``communicate'' and ``communication,''
revises the existing text to make language more active, and clarifies
how recipients may interact with client-eligible individuals. The main
goal of these revisions is to formalize the interpretations of LSC's
rule on solicitation that the Office of Legal Affairs (OLA) 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 recipients' intake processes,
as well as how recipients may relay that information without violating
either LSC's Fiscal Year 1996 appropriations statute or the rule
prohibiting solicitation.
DATES: This final rule is effective on May 13, 2024.
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#254f4a4d4b564a4b40654956460b424a53"><span class="__cf_email__" data-cfemail="dab0b5b2b4a9b5b4bf9ab6a9b9f4bdb5ac">[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[.]'' Pubic Law 104-134, 110
Stat. 1321, 1321-56.
On May 19, 1996, the Operations and Regulations Committee
(Committee) of the LSC Board of Directors requested that LSC staff
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 prohibits a grant recipient from representing an individual
who had not sought legal advice from the grant recipient but who the
grant recipient had provided in person unsolicited advice to seek legal
representation or take legal action. 45 CFR 1638.3(a). Part 1638 also
prohibits a grant recipient who has given in-person unsolicited advice
to an individual from referring that individual to another LSC grant
recipient. 45 CFR 1638.3(b). 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 regulation's language caused grantees to question whether they
can provide information about 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
the types of proposed outreach activities permissible under part 1638.
Examples of inquiries include:
<bullet> Is it permissible to send text messages to unrepresented
individuals explaining defendants' rights in eviction cases?
<bullet> Is it permissible to inform individuals of the
availability of legal assistance via mailings and text messages?
<bullet> What activities are allowed when interacting with
individuals approaching grant recipient attorneys at court-based self-
help clinics?
In July 2003, OLA published an advisory opinion (AO) 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 provide unsolicited advice
to 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 to increase 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
[[Page 25814]]
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 addressing 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 a grant recipient
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 became more
compelling as governments began lifting moratoria on filing evictions
and pursuing debt collection cases that had been 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 Committee voted to recommend that the LSC
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 a notice of
proposed rulemaking (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 the NPRM. LSC
published the notice of proposed rulemaking in the Federal Register on
October 25, 2023. 88 FR 73303, Oct. 25, 2023. The comment period
remained open for sixty days and closed on December 26, 2023.
After consideration of the comments received during the comment
period, on April 2, 2024, the Committee voted to recommend that the LSC
Board adopt this final rule and approve its publication in the Federal
Register. On April 8, 2024, the Board voted to adopt and publish this
final rule.
Materials regarding this rulemaking are available in the open
rulemaking section of LSC's website at <a href="https://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking">https://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking</a>. After the effective date of the
rule, those materials will appear in the closed rulemaking section at
<a href="https://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking/closed-rulemaking">https://www.lsc.gov/about-lsc/laws-regulations-guidance/rulemaking/closed-rulemaking</a>.
II. Section-by-Section Discussion of Comments and Regulatory Provisions
LSC received seven comments during the public comment period.
Comments were received from the following: (1) the National Legal Aid
and Defender Association (NLADA) by its Civil Council, the elected
representative body that establishes policy for the NLADA Civil
Division, and its Regulations Committee; (2) the American Bar
Association (ABA) through its Standing Committee on Legal Aid and
Indigent Defense (SCLAID); (3) Lakeshore Legal Aid, an LSC-funded
recipient; (4) four law students and one private individual. LSC
received one telephone call from a LSC grantee former Executive
Director after the comment period. All commenters were generally
supportive of LSC's proposed changes to part 1638.
III. Proposed Changes
Section 1638.1 Purpose
LSC proposed to make no changes to this section. LSC received no
comments on this section.
Section 1638.2 Definitions
LSC proposed 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 advances in technology
since the inception of this prohibition, this change will provide
greater flexibility and clarity around the methods of communication
that are permitted. This change is not intended to require recipients
to use particular methods to reach client-eligible individuals. Rather,
it clarifies which methods are permissible.
LSC also proposed to amend the definition of the term in-person to
include virtual engagements such as clinics conducted via Zoom or other
videoconferencing software. LSC proposed 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 proposed to
redesignate existing paragraph (b), defining the term unsolicited
advice, as paragraph (c).
Comments: Commenters generally supported LSC's proposed changes to
provide clarity and greater flexibility for recipients to reach client-
eligible members. For example, in the ABA's view, ``the proposed
revisions to section 1638 that clearly delineate permissible
communication and impermissible in-person solicitation are consistent
with what is allowed under Model Rule 7.3. The revisions setting forth
permissible communication such as `sending information via mailings,
text message, email, or other methods of voice or electronic
Communication' meet the
[[Page 25815]]
`easily disregarded' standard under Rule 7.3, as they do not implicate
a potential for undue influence to be exerted by the lawyer in the
interaction.'' Additionally, at the Committee meeting on January 21,
2024, this comment was discussed, and Board members commented that
phone use is still very prevalent in some areas, and it is important
for recipients to be able to provide legal information to eligible
clients by calling the clients because that is the only viable means of
communication.
Some commenters recommended additional refinement of the terms
communicate and communication. One person commented that ``further
explanation is required for the record as per why LSC is declining to
include live phone calls within its definition of in-person activity''
because LSC's decision to not extend ``in-person activity'' to phone
calls by narrowing the proposed definition to ``face-to-face
encounters'', is ``directly contrary to Model Rule 7.3's explicit
inclusion of prohibiting solicitation via live telephone.'' Another
suggested clarifying ``what types of communication are not considered
solicitation under the rule'' because the proposed rule definitions
``could potentially include any form of interaction between a recipient
and a client-eligible individual.'' Additionally, the commenter
continued, the rule should specify how recipients may communicate with
client-eligible individuals without violating part 1638. Lastly, LSC
``may want to consider adopting or adapting the ABA's guidance on
electronic and written communication to clarify its own rule on
solicitation. This may help recipients avoid confusion and potential
violations of the rule.''
Response: LSC believes the language in the proposed rule provides
sufficient clarity and, therefore, will adopt this section with no
changes. It is impossible to list out every potential scenario that may
arise and language such as ``not limited to'' and ``including'' is
intended to signal that the examples are not an exhaustive list. LSC
agrees with the ABA's comments that the proposed revisions to this
section clearly delineate permissible communication and impermissible
in-person solicitation and the changes are consistent with what is
allowed under Model Rule 7.3.
Regarding the use of telephone, the definition of ``communication''
includes methods of voice or electronic communication. The telephone is
an example of voice communication but is not the only means of voice
communication. In 2020, OLA opined that part 1638 does not prohibit a
grant recipient from representing an individual that the grant
recipient initiated contact with over the telephone 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.
AO-2020-004 (June 24, 2020).
Section 1638.3 Prohibition
LSC proposed to edit the text to be active as opposed to passive.
For example, ``shall not represent'' replaced ``are prohibited from
representing.''
Comments: LSC received one comment in support of the change.
Response: LSC adopts the proposed version in this final rule
without change.
Section 1638.4 Permissible Activities
LSC proposed to edit the text of this rule to be active as opposed
to passive. Additionally, LSC proposed 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 clarifies 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 proposed to add paragraphs (c) and (e) to incorporate
OLA's interpretations of existing part 1638 and the guidance LSC
provided in Program Letter 22-1. Finally, LSC proposed 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.''
Comments: Commenters generally supported LSC's proposed changes.
The ABA noted that ``the range of permissible activities set forth
under section 1638.4 reflects the same types of activities in which
lawyers in general may engage under Rule 7.3.'' Additionally, Lakeshore
Legal Aid commented that ``the proposed changes to section 1638,
particularly section 1638.4(b), clarify that this critical notice to
tenants is allowable in the regulation itself. This change will
encourage legal aid programs to provide the exact notice that tenants
need to avail themselves of legal representation, protect their rights,
and remain in their homes.''
There were two main suggested edits. The first was to make this
section ``more explicit that this list of permissible activities is an
illustrative one, not an exhaustive one . . . The intention of this
revision would be undermined if an LSC recipient could look at this
regulation a few years from now and come away thinking that a
permissible outreach effort should be avoided because it was not one of
the specific activities listed in Sec. 1638.4.''
The second is regarding the phrase in Sec. 1638.4(a) ``at the
invitation of the court.'' NLADA observed that the meaning of the
phrase is unclear because ``[a]n invitation could be a formal letter, a
request by a judge on the record, or a simple ask by a clerk or other
court staff.'' They continued: ``[m]any LSC recipients work closely
with courts to maintain a presence in the courthouse. This increases
the ability to provide legal information and reach eligible clients who
may in fact be seeking legal advice.'' NLADA suggested changing the
language to ``in cooperation with the court . . . This will also help
clarify that LSC recipients do not need to wait for a formal invitation
by the court to reach out to court officials and work alongside courts
to establish a courthouse presence and reach clients in need of
services.'' This comment was also discussed at the January 21, 2024,
Committee meeting, during which Board members remarked that if the
statute does not require recipients to be present in the courthouse
``at the invitation of the court,'' the phrase should not be included
in this rule. Further, recipients should cooperate with courts, but
since courthouses are public buildings, recipients should not be
precluded from performing important functions for eligible clients if
the court has not invited the recipient or is not particularly
cooperative.
[[Page 25816]]
Lastly, one commenter suggested updating the new paragraph (d),
which is a redesignation of existing paragraph (c). The commenter
recommended that LSC revise the list of individuals who may not be able
to seek legal assistance on their own to include persons who are
incarcerated, unhoused, living in institutions or correctional
facilities, or living with a physical or mental disability.
Response: LSC agrees it is important for this rule to be flexible
enough for recipients to apply the rule to new technologies and
circumstances not contemplated at the time of these changes. Therefore,
the section will be revised to indicate the listed methods are examples
of permissible activities.
Further, LSC agrees that a recipient may have a difficult time
proving they were in a courthouse ``at the invitation of the court''
particularly because the rule does not indicate what constitutes an
``invitation.'' Although not contemplated in the NPRM, LSC believes
that removal of ``at the invitation of the court'' is a logical
outgrowth of the proposed rule changes. The purpose of this rulemaking
was to clarify and simplify part 1638. Removal of this language is not
a substantive change, rather it is a technical change to remove
ambiguity. As mentioned during the January 21, 2024, Committee meeting,
section 504(a)(18) does not require this language. In fact, the statute
does not discuss a recipient's activities in courthouses at all.
Further, as the written comments note, a recipient's ongoing presence
in a courthouse is sufficient to establish the court's approval of the
recipient being in the courthouse. Therefore, the term will be removed
for the sake of clarity.
Lastly, to achieve active voice, LSC will amend the last clause of
Sec. 1638.4(d) to read as ``including institutionalized individuals or
individuals living with a physical or mental disability.''
Section 1638.5 Recipient Policies
LSC proposed no changes to this section. LSC received no comments
on 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 amends 45 CFR part 1638 as follows:
PART 1638--RESTRICTION ON SOLICITATION
0
1. The authority citation for part 1638 is revised 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. Recipients
may engage in various activities including, but not limited to,
outreach, public service announcements, maintaining an ongoing presence
in a courthouse to provide advice, 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 requesting legal
assistance from the recipient as a result of a communication or
information provided as described in paragraph (a) of this section,
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 institutionalized individuals or
individuals 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: April 8, 2024.
Stefanie Davis,
Deputy General Counsel, Legal Services Corporation.
[FR Doc. 2024-07761 Filed 4-11-24; 8:45 am]
BILLING CODE 7050- 01-P
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