[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] ======================================================================= ----------------------------------------------------------------------- LEGAL SERVICES CORPORATION 45 CFR Part 1644 Disclosure of Case Information AGENCY: Legal Services Corporation. ACTION: Proposed rule. ----------------------------------------------------------------------- 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