By Alan Houseman

[Part 7 of the series on the 40th anniversary of the Legal Services Corporation]

From the beginning of the Legal Services Corporation (LSC), there have been restrictions on who can be served and what can be done by LSC-funded civil legal aid programs. The original 1974 LSC Act included a number of restrictions. Congress added more in 1982 and 1989 through appropriation provisions that in most cases only restricted a program’s LSC funds. In the FY96 appropriations legislation, modified slightly by the FY98 appropriations legislation, and incorporated in the FY99 and subsequent appropriations legislation, Congress added many more and made these new restrictions apply to all funds received by a program with LSC funding. This blog reviews the history of restrictions on programs funded by LSC.

The LSC restrictions imposed in 1996 and subsequently, left legal services programs and their staff with less capacity to effectively represent low-income persons in the courts and before other forums that affect their rights and responsibilities. Even so, over 95% of the work done in legal services in 1995 could continue and over 98% of the cases brought to court in 1995 could still be brought. Moreover, there continue to be many critically important representational activities that can still be done by LSC-funded entities, and programs can continue to address systemic problems faced by low-income persons in virtually all substantive areas.

Note that some states and other funders have also imposed restrictions on their funding. Most of the state restrictions are identical to the LSC restrictions. A few states and some other funders have imposed additional restrictions to funding not included in the LSC restrictions.

RESTRICTIONS IN ORIGINAL LSC ACT

Restrictions on types of cases that could be handled: The 1974 LSC Act prohibited (1) litigation involving nontherapeutic abortion; (2) representation in school desegregation cases; (3) representation in selective service and military cases; (4) representation in certain juvenile cases; (5) representation in criminal cases; (6) representation in habeas corpus collaterally attacking a criminal conviction; and (7) bringing fee-generating cases ( defined as any case or matter which, if undertaken on behalf of an eligible client by an attorney in private practice, reasonably may be expected to result in a fee for legal services from an awards to a client, from public funds, or from the opposing party.) The restriction on juvenile representation was removed during the 1977 reauthorization of the LSC Act.

Restrictions on clients that could be represented: The LSC Act permits representation of all aliens, public housing residents, prisoners and others so long as they met financial eligibility guidelines.

Restrictions on representation and other activities: The 1974 LSC Act included restrictions on legislative and administrative advocacy, ballot measures, initiatives or referendum, class actions, training and organizing, but there were qualifications and exceptions that significantly limited those restrictions.

Ballot measures, initiatives and referendum: Programs could not advocate or oppose any ballot measure, initiative, or referendum.

Legislative and administrative advocacy: The 1974 Act prohibited indirect or direct attempts to “influence the issuance, amendment or revocation of any executive order or similar promulgation by any Federal, State or local agency, or to undertake to influence the passage or defeat of any legislation by the Congress of the United States, or by any State or local legislative bodies, or State proposal by initiative petition. However, the Act permitted representing clients before legislative and administrative bodies when “necessary to the provision of legal advice and representation with respect to … (a) client’s legal rights and responsibilities.” The Act also permitted program staff to testify, draft, or review measures or to make representations to government agencies, legislative bodies, committee or members when requested to do so. The Act also permitted representation when agencies and legislative bodies are considering a measure directly affecting the activities of a program or the Corporation (self-help lobbying).

Class actions could be undertaken with the express approval of the project director under policies promulgated by the program’s board.

Training: While programs could not conduct or support training programs to advocate for particular public policies or encourage political activities, labor or anti-labor activities, boycotts, strikes and demonstrations, programs could train attorneys and paralegals to provide legal assistance and disseminate information about public policies.

Organizing: While programs could not organize a group, association, and the like, they could provide legal assistance to such groups.

Restrictions on personal activities of staff attorneys: Staff attorneys cannot: (1) run for partisan elective office (and must resign if they decide to run); (2) engage in any political activity during working hours; (3) engage in any illegal demonstrations, boycotts, strikes or other illegal activity at any time; or (4) engage in voter registration or transporting voters to the polls during working hours.

Funds Covered: Restrictions on the type of cases and scope of representation applied to both LSC and private funds, but not to non-LSC public funds (which included IOLTA funds).

RESTRICTIONS ADDED ON LSC FUNDS IN THE 1980S BY APPROPRIATION PROVISIONS

The LSC Act provisions remained in effect. In some areas noted below, the appropriation provisions created more restrictions than the LSC Act. Except where noted, the appropriation provisions did not cover private or non-LSC public funds.

Restriction on types of cases: Programs could not participate in representation (1) relating to abortion with LSC funds and (2) in redistricting cases or activities involving the taking of the census with both LSC and private funds.

Restrictions on clients that could be represented: As a result of provisions contained in the LSC appropriation and the Immigration Reform and Control Act of 1986, use of LSC funds was only permitted for representation of the following categories of aliens:

Lawful permanent resident aliens including those granted amnesty.

1. Lawful temporary resident aliens under the seasonal agricultural worker (SAW) program.
2. Any alien who is either married to a U.S. citizen, the parent of a U.S. citizen, or an unmarried child under the age of 21 of a U.S. citizen assuming such alien has filed an application for adjustment of status to permanent residency and such application has not been denied.
3. Aliens granted asylum.
4. Aliens granted refugee status.
5. Aliens granted conditional entrant status.
6. Aliens granted withholding of deportation.
7. H-2A nonimmigrant temporary agricultural workers (concerning the worker’s employment contract).
8. Replenishment agricultural workers (RAW’s) admitted for temporary residence.

Restrictions on Representation

Class Actions: LSC funds could not be used to bring a class action against a governmental entity except under the following conditions: (1) the relief was sought for the primary benefit of eligible clients; (2) the program had to notify the government entity involved and attempt to negotiate the issues which adversely affect the particular clients represented; (3) the board of each program had to adopt a class action policy, which could preclude or limit class actions; (4) before filing a class action against a governmental entity, the Project Director had to: (a) expressly approve the filing consistent with program policies; (b) determine that the government entity: (I) would not change its policy or practice; (ii) that the policy or practice would continue to adversely affect eligible clients; (iii) that the program had notified the government entity of its intention to seek class relief; and (iv) that the efforts to negotiate had failed.

Representation before legislative bodies:   LSC funds could not be used for: (1) self-help lobbying; (2) grassroots lobbying; (3) advocacy on referendums, initiatives or constitutional amendments.   However, LSC funds could be used to communicate to a legislative body on behalf of an eligible client on a specific issue but only if: (1) appropriate administrative and judicial relief had been exhausted; (2) the legislative body could provide relief; and (3) the communication was not part of a coordinated campaign. LSC funds could be used to respond to requests of legislative officials. Private funds could be used for all of the above and to represent clients before legislative bodies when “necessary to the provision of legal advice and representation with respect to … (a) client’s legal rights and responsibilities.”

Participation in agency rulemaking: LSC funds could be used to represent clients in agency rulemaking if the representation was on behalf of an eligible client on a particular application, claim or case which directly involved the client’s legal rights or responsibilities. LSC funds could be used to respond to requests of administrative officials. Private funds could be used for all of the above and to represent clients before legislative bodies when “necessary to the provision of legal advice and representation with respect to … (a) client’s legal rights and responsibilities.”

Training: LSC funds could not be used to disseminate information about public policies or to train people how to lobby or participate in agency rulemaking.

Restrictions on personal activities of staff attorneys: No new restrictions.

RESTRICTIONS IMPOSED IN 1996 APPROPRIATION PROVISIONS AND CONTINUED TO DATE

All restrictions in the LSC Act remain. The 1996 appropriation provisions replaced the 1980s’ appropriation provisions which are no longer in effect.

Non-LSC funds: With regard to the 1996 restrictions described below, all of a program’s funds from whatever source (except tribal funds) are restricted. Programs cannot use funds from non-LSC sources to undertake activities that are subject to the restrictions and that cannot be done with LSC funds. However, programs may transfer non-LSC funds to affiliated or entirely separate entities to use for representation in restricted cases.

Restrictions on types of cases

Welfare Reform: Programs cannot engage in litigation on behalf of groups or participate in lobbying or rulemaking involving State or Federal welfare reform initiatives, laws or regulations (unless they fall within the exceptions for lobbying and rulemaking outlined below). However, programs can represent an individual client who is seeking relief from a welfare agency because of threatened adverse action based on a welfare reform law, regulation or policy. As a result of the Supreme Court decision in Legal Services Corporation v. Velazquez, 531 U.S. 533 (2001), legal services programs representing such individuals in cases seeking relief from welfare agencies can now raise all relevant legal issues and can challenge existing statutory law or regulations.

Redistricting: Representation in redistricting cases is prohibited.   However, representation in voting rights issues not involving redistricting is permitted.

Abortion: Programs cannot participate in any litigation with regard to abortion.

Drug evictions from public housing: Programs cannot represent persons convicted of, or charged with, drug crimes in public housing evictions when the evictions are based on threats to health or safety of public housing residents or employees.

Assisted suicide, euthanasia and mercy killing: Programs cannot use LSC funds for any activities relating to assisted suicide, euthanasia and mercy killing.

Restrictions on clients that could be represented

Aliens: Programs generally cannot use any funds to represent most undocumented and several other categories of aliens. However, certain legal aliens can be represented using both LSC and non-LSC funds. Specifically:

1. Lawful permanent resident aliens.
2. Any alien who is either married to a U.S. citizen, the parent of a U.S. citizen, or an unmarried child under the age of 21 of a U.S. citizen, assuming such alien has filed an application for adjustment of status to permanent residency and such application has not been denied.
3. Aliens granted asylum.
4. Aliens granted refugee status.
5. Aliens granted conditional entrant status.
6. Aliens granted withholding of deportation.
7. H-2A nonimmigrant temporary agricultural workers, concerning the worker’s employment contract.
8. H-2B nonimmigrant forestry workers, concerning the worker’s employment                       contract.
9. Victims of human trafficking
10. Aliens who are victims (or parents of victims) of domestic violence, victims of sexual assault or certain other sexual or violent crimes, when legal assistance is directly related to the prevention of, or obtaining relief from, the violence, assault or criminal activity.

Prisoners: Programs cannot participate in civil litigation on behalf of a person incarcerated in a Federal, State or local prison or participate in administrative proceedings challenging the conditions of incarceration.

Restrictions on representation

Legislative Advocacy: Programs are precluded from directly or indirectly attempting to influence pending or proposed legislation. However, programs can use non-LSC funds to respond to a written request for information or testimony from a legislative body or committee, or a member of such body or committee, so long as the response is made only to the parties that made the request and the program does not arrange for the request to be made.

Administrative Advocacy: Programs cannot represent clients or client interests before administrative agencies engaged in rulemaking and cannot use LSC funds to respond to requests of administrative officials with regard to rules directly affecting clients. However, programs can use non-LSC funds to: (1) participate in public comment in a rulemaking proceeding, or (2) respond to a written request for information or testimony from a government agency, so long as the response is made only to the parties that made the request and the program does not arrange for the request to be made.

Self-help lobbying: Programs are precluded from all self-help lobbying before agencies or legislative bodies, with two exceptions. Programs can use non-LSC funds to affirmatively contact or communicate with State or local legislative or administrative officials with regard to pending or proposed agency proposals or legislation to fund the program. Programs can use non-LSC funds respond to requests of federal, State or local legislative or administrative officials with regard to pending or proposed legislation or agency proposals to fund the program, so long as the response is made only to the parties that made the request and the program does not arrange for the request to be made.

Grass roots lobbying: Programs are prohibited from participating in any grass roots lobbying.

Class Actions: Programs cannot initiate, participate or engage in class actions, but can continue certain limited non-adversarial activities in existing class actions and can represent individuals who are members of a class in certain limited circumstances.

Attorneys’ fees: The 2010 consolidated appropriations bill eliminated the statutory restriction on claiming, collecting and retaining attorneys’ fees. Effective March 15, 2010, LSC eliminated the attorneys’ fee regulation (45 CFR 1642) and programs are now permitted to make claims for attorneys’ fees in any case in which they are otherwise legally permitted to make such a claim. Programs are also permitted to collect and retain attorneys’ fees whenever such fees are awarded to them. With the repeal of the restriction, programs are permitted to claim, collect and retain attorneys’ fees with respect to any work they have performed for which fees are available to them, without regard to when the legal work for which fees are claimed or awarded was performed.

Solicitation: Programs are prohibited from representing clients as a result of in-person solicitation. However, programs can operate community legal education programs and engage in outreach activities to client groups, and may represent clients who seek assistance as a result of those activities, but may not affirmatively seek to identify particular individual participants who have specific problems on which they need assistance and advise those particular participants to seek such assistance from the program or another program.

Training: Programs cannot conduct training programs to advocate particular public policies or political activities or to train people to engage in restricted activities.

Client identification: Except in emergency situations, programs are required to identify by name to the defendant any client who is a plaintiff and obtain a signed statement of facts from such plaintiff before the program can file suit or engage in pre-complaint settlement negotiations on the client’s behalf. Access by adverse parties to the written statement of facts is governed by the law and discovery rules of the court in which the action is brought.

Case disclosure: Upon request, programs must disclose to the public and must report semi-annually to LSC certain information about each case that is filed by program attorneys in any court (not administrative agencies). The information includes (1) the name and address of each party to the legal action, (2) the cause of action of the case, and (3) the name and address of the court in which the case was filed and the case number assigned to the case. Programs do not need to file name and address information when such information is protected by an order or rule of a court or by a State or Federal law or when revealing such information would put the client of the program at risk of physical harm. This requirement applies only where a program represents a plaintiff in an action; cases where the programs represent defendants or third parties need not be reported.

Restrictions on personal activities of staff attorneys: No new restrictions.

Restrictions on assisted suicide: The Assisted Suicide Funding Restrictions Act of 1997 prohibited the use of LSC funds for any assisted suicide, euthanasia or mercy killing activities.

Alan Houseman is the former executive director of CLASP and emeritus senior fellow of the organization, and the president of the Consortium for the National Equal Justice Library. The opinions presented in this blog series are his own.