[Federal Register Volume 63, Number 33 (Thursday, February 19, 1998)]
[Proposed Rules]
[Pages 8387-8389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4157]


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LEGAL SERVICES CORPORATION

45 CFR Part 1644


Disclosure of Case Information

AGENCY: Legal Services Corporation.

ACTION: Proposed rule.

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SUMMARY: This proposed rule is a new rule intended to implement a 
provision in the Legal Services Corporation's (LSC or Corporation) FY 
1998 appropriations act which requires basic field recipients to 
disclose certain information to the public and to the Corporation 
regarding cases their attorneys file in court. The case information 
that is provided to the Corporation will be subject to disclosure under 
the Freedom of Information Act.

DATES: Comments should be received on or before March 23, 1998.

ADDRESSES: Comments should be submitted to the Office of the General 
Counsel, Legal Services Corporation, 750 First St. NE., 11th Floor, 
Washington, DC 20002-4250.

FOR FURTHER INFORMATION CONTACT: Office of the General Counsel, (202-
336-8817.

SUPPLEMENTARY INFORMATION: This proposed new rule is intended to 
implement Section 505 of the Corporation's FY 1998 appropriations act, 
which requires basic field recipients to disclose certain information 
to the public and to the Corporation regarding cases filed in court by 
any attorney employed by a recipient. See Public Law 105-119, 111 Stat. 
2440. The Corporation issued a program letter on December 9, 1997, 
providing recipients with guidance on compliance with Section 505 until 
such time as a rule could be promulgated by the Corporation. On 
February 6, 1998, the Corporation's Operations and Regulations 
Committee (Committee) of the Corporation's Board of Directors (Board) 
met to consider a draft proposed rule to implement the case disclosure 
requirement. After making some changes to the draft rule, the Committee 
adopted this proposed rule for publication for public comment. A 
section-by-section analysis follows.

Section-by-Section Analysis

Section 1644.1  Purpose

    The purpose section states that the rule is intended to ensure that 
recipients disclose to the public and to the Corporation information 
required by the case disclosure requirement on cases filed in court by 
their attorneys.

Section 1644.2  Definitions

    The case disclosure provision requires that recipients disclose 
certain information, including the cause of action, for each case filed 
in court by a recipient attorney. To clarify this requirement, this 
proposed rule includes three definitions.
    First, paragraph (a) of Sec. 1644.2 defines to disclose the cause 
of action. To disclose the cause of action means to provide a 
sufficient description of a particular case to indicate the principal 
nature of the case. Examples would include: ``breach of warranty,'' 
``bankruptcy,'' ``divorce,'' ``domestic violence,'' ``petition to quiet 
title,'' ``action to recover property,'' and ``employment 
discrimination action.''

[[Page 8388]]

    Paragraph (b) clarifies the type of recipient subject to the case 
disclosure requirement. Recipient is defined as a grantee which 
receives funds under Section 1006(a)(1)(A) of the LSC Act, 42 U.S.C. 
2996e(a)(1)(A), that is, a basic field recipient which provides direct 
legal assistance to the poor. Section 505 does not specifically apply 
to subrecipients. However, as a matter of policy, this proposed rule 
extends the case disclosure requirement of Section 505 to subrecipients 
that provide direct legal representation to eligible clients.
    Paragraph (c) clarifies that the term attorney, as used in this 
part, means any attorney who is employed by a recipient. This would 
include attorneys employed as regular or contract employees, regardless 
of whether such attorneys are employed full-time or part-time. This 
definition is not intended to mean that cases filed by part-time 
attorneys outside of their employment with the recipient are subject to 
this rule's case disclosure requirement. They are not. However, all 
cases filed by a recipient's part-time attorneys under their employment 
with the recipient must be reported.
    Finally, the definition of attorney does not include private 
attorneys providing legal assistance under a recipient's private 
attorney involvement (PAI) program, because such attorneys are not 
employed by a recipient. Another section in this rule expressly 
provides that the case disclosure requirement does not apply to cases 
filed under a recipient's PAI program.

Section 1644.3  Case Disclosure Requirement

    This section sets out the basic requirements of the case disclosure 
provision. Paragraph (a) lists the information a recipient must 
disclose about applicable cases. First, the name and full address of 
each party to a case must be disclosed unless one of two statutory 
protections apply. The term ``full address'' means an address 
sufficient to contact a party to the case, such as a street address or 
post office box number with the city, state and zip code.
    This provision is not intended to require recipients to provide a 
name and address of a party when they have no knowledge of and no 
access to such information. This could occur, for example, when the 
information is not a matter of public record, the party is not a client 
of the recipient, and the private attorney for that party refuses to 
provide the information. However, the recipient must be able to 
document its inability to provide the information and satisfy the 
Corporation that a reasonable effort was made to obtain the 
information.
    A name or address need not be disclosed if (1) The name or address 
is protected by an order or rule of court or by State or Federal law, 
or (2) the recipient's attorney reasonably believes that revealing the 
information would put the client of the recipient at risk of physical 
harm. These protections are consistent with the express legislative 
intent of the purpose and scope of the requirement. The legislative 
history indicates that Congress intends that the disclosure requirement 
apply to ``the most basic information'' about a case which is already 
public and on file in court records, but does not apply to information, 
for example, that would risk harm to a person or that is protected by 
the attorney-client privilege. See 143 Cong. Rec. H 8004-8008 (Sept. 
26, 1997).
    The case disclosure requirement also requires disclosure of the 
cause of action for any applicable case. This requirement is intended 
to provide the public and the Corporation with information regarding 
the nature or types of cases filed in court by legal services 
attorneys, so that there is a public awareness of how legal services 
funds are being expended.
    Finally, the case disclosure provision requires disclosure of the 
name and full address of the court where a case is filed and the case 
number assigned to the case. ``Full address'' means an address 
sufficient to contact the court.
    Paragraph (b) of this section requires recipients to provide their 
case information to the Corporation in semiannual reports, as specified 
by the Corporation. The Corporation will provide guidance to recipients 
on how and when to provide the information. This paragraph also 
clarifies that reports submitted to the Corporation are subject to 
disclosure under the Freedom of Information Act.
    Paragraph (c) provides that a recipient must make the case 
information described in paragraph (a) available in written form to any 
person who requests such information. This rule does not mandate how 
recipients must maintain the case information for disclosure to the 
public, except that it must be provided in written form. Recipients may 
choose to maintain an up-to-date central file containing the case 
information for each case filed after January 1, 1998. Alternatively, 
recipients may choose to compile such information centrally only at the 
time of receipt of a public request or in preparation of the semiannual 
report to the Corporation. In either event, the case information must 
be made available within a reasonable time after a request is made by 
any member of the public. Recipients may charge reasonable mailing and 
document copying fees.

Section 1644.4  Applicability

    This section clarifies the scope of the case disclosure 
requirement. First, it states that only actions filed on behalf of 
plaintiffs and petitioners must be disclosed. This is consistent with 
the language of Section 505, which requires case information about 
``each case filed by its [a recipient's] attorneys.'' This language 
clearly applies to ``each case'' filed, not to individual filings in a 
particular case. Thus, the case disclosure requirement does not require 
updates on the status of cases for which information has already been 
filed. In addition, the language of Section 505 refers to cases filed 
by a recipient attorney. The general understanding of the meaning of 
filing a case is that it refers to the initiation of a case, such as 
the filing of a complaint by a plaintiff. Accordingly, submissions of 
pleadings such as an answer or a cross claim on behalf of a defendant 
in a case that was not initiated by a recipient are not covered by the 
case disclosure requirement.
    Although the case disclosure requirement normally applies only to 
the original filing of a case, subparagraph (a)(2) of this section 
applies the requirement when there is an appeal filed in court by a 
recipient and the recipient was not the attorney of record in the case 
below. Likewise, subparagraph (a)(3) applies the requirement to any 
judicial appeal of an administrative action when the appeal is first 
filed in court.
    Finally, paragraph (b) clarifies that this rule does not apply to 
private attorney involvement (PAI) programs under 45 CFR Part 1614. PAI 
attorneys are not attorneys employed by recipients; rather, they are 
generally private attorneys with their own private practices who have 
been recruited by recipients to provide some pro bono or reduced fee 
legal assistance to eligible clients. Besides, it has long been the 
policy of the Corporation not to place discretionary burdens on PAI 
programs that would greatly hamper the recruitment of PAI attorneys.

Section 1644.5  Recipient Policies and Procedures

    This section requires the recipient to establish written policies 
and procedures to guide the recipient's staff to ensure compliance with 
this rule. Such procedures could include information regarding how any 
person may be given access to or be provided

[[Page 8389]]

with copies of a recipient's case disclosure information. The 
procedures could also set out the costs for copying or mailing such 
information.

List of Subjects in 45 CFR Part 1644

    Grant programs, Legal services, Reporting and recordkeeping 
requirements.

    For reasons set forth in the preamble, LSC proposes to amend 
Chapter XVI of Title 45 by adding part 1644 as follows:

PART 1644--DISCLOSURE OF CASE INFORMATION

Sec.
1644.1  Purpose.
1644.2  Definitions.
1644.3  Case disclosure requirement.
1644.4  Applicability.
1644.5  Recipient policies and procedures.

    Authority: Pub. L. 105-119, 111 Stat. 2440, Sec. 505; Pub. L. 
104-134, 110 Stat. 1321; 42 U.S.C. 2996g(a).


Sec. 1644.1  Purpose.

    The purpose of this rule is to ensure that recipients disclose to 
the public and to the Corporation certain information on cases filed in 
court by their attorneys.


Sec. 1644.2  Definitions.

    For the purposes of this part:
    (a) To disclose the cause of action means to provide a sufficient 
description of the case to indicate the type or principal nature of the 
case.
    (b) Recipient means any grantee or contractor receiving funds from 
the Corporation under section 1006(a)(1) of the Act and includes any 
subrecipient which receives LSC funds from a recipient for direct 
representation of eligible clients.
    (c) Attorney means any attorney employed by the recipient, as a 
regular or contract employee, and regardless of whether the attorney is 
employed full-time or part time.


Sec. 1644.3  Case disclosure requirement.

    (a) For each case filed in court by its attorneys after January 1, 
1998, a recipient shall disclose, in accordance with the requirements 
of this part, the following information:
    (1) The name and full address of each party to a case, unless:
    (A) the information is protected by an order or rule of court or by 
State or Federal law; or
    (B) the recipient's attorney reasonably believes that revealing 
such information would put the client of the recipient at risk of 
physical harm;
    (2) The cause of action;
    (3) The name and full address of the court where the case is filed; 
and
    (4) The case number assigned to the case by the court.
    (b) Recipients shall provide the information required in paragraph 
(a) of this section to the Corporation in semiannual reports in the 
manner specified by the Corporation. Recipients may file such reports 
on behalf of their subrecipients for cases filed by subrecipients 
covered by this part. Such reports will be made available to the public 
by the Corporation upon request pursuant to the Freedom of Information 
Act, 5 U.S.C. 552.
    (c) Upon request, a recipient shall make the information required 
in paragraph (a) of this section available in written form to any 
person. Recipients may charge reasonable mailing and document copying 
fees.


Sec. 1644.4  Applicability.

    (a) The case disclosure requirements of this part apply:
    (1) Only to actions filed on behalf of plaintiffs or petitioners;
    (2) Only to the original filing of a case, except for appeals filed 
in appellate courts by a recipient if the recipient was not the 
attorney of record in the case below; or
    (3) To judicial appeals of administrative actions when such appeals 
are first filed in court.
    (b) This part does not apply to cases filed by private attorneys as 
part of a recipient's private attorney involvement activities pursuant 
to part 1614 of this chapter.


Sec. 1644.5  Recipient policies and procedures.

    Each recipient shall adopt written policies and procedures to 
implement the requirements of this part.

    Dated: February 13, 1998.
Suzanne B. Glasow,
Senior Assistant General Counsel.
[FR Doc. 98-4157 Filed 2-18-98; 8:45 am]
BILLING CODE 7050-01-P