Advisory Opinion 2016-007

LSC Restrictions on non-LSC Funded Self Help Centers

Issue

Do the LSC restrictions apply to legal assistance provided by an LSC grantee’s staff attorneys at self-help centers funded by a grant from a state court system?

Brief Answer

Yes. Non-LSC funded legal assistance provided by an LSC grantee is subject to the LSC restrictions on non-LSC funded activities.

Background

An LSC grantee (Grantee) receives $2 million a year from a state court system to operate self-help centers for people with legal problems. Grantee pays all costs for the self-help centers, including attorney and support staff salaries, out of the contract funds.

Agreement between Grantee and Center Participants

Each individual assisted at a center signs an Agreement for Self-Help Assistance (Agreement). The Agreement has the following provisions relevant to this issue.

Scope of Legal Services

The Agreement states that Grantee “will provide short-term limited legal services” regarding a variety of civil matters. It states that those services “may include” the following activities. 

  • “brief advice about your legal problem”
  • “general information about the legal system and law”
  • “case status information”
  • “assistance with the court forms”
  • “referrals”

Scope of Representation by a Lawyer

 The Agreement states that “a client-lawyer relationship is established” although “the lawyer’s representation of you” will not continue “beyond your consultation today” and there is no expectation that Grantee “shall provide continuing representation to you for any legal matter on which you consult with Center staff.”

Waiver of Conflicts Among Clients

The Agreement requires the individual to provide “informed consent for the Center and [Grantee] to provide services to you even though conflicts of interest may exist” in which “the Center may provide similar assistance to another person involved in your case whose interests may be opposed to yours.”

Website Information

Grantee lists the following services on the section of its website regarding these self-help centers. 

  • “complete court forms”
  • “learn how to file court documents”
  • “prepare for court”
  • “prepare for mediation”
  • “understand court documents”

 The website also states that “Self-Help Center lawyers will not represent you in court” and “[t]his service is provided to help you represent yourself.”

Operation of Self-Help Centers

Grantee staff describe the self-help centers as providing the types of services described in the Agreement and on the website. Grantee does not screen individuals seeking assistance through the self-help centers for eligibility under LSC’s governing statutes and regulations, although it does do minimal income screening at two centers. Nor does Grantee treat any of the services provided as subject to the LSC restrictions on non-LSC funded activities. Grantee staff state that persons served at the self-help centers are not applicants for legal assistance and are not clients of Grantee. They also point to the lack of continuous representation and to their determination that all self-help participants are automatically eligible for services at the centers.

Authority

The LSC Act and LSC’s fiscal year 1996 appropriations legislation place several restrictions on grantees’ use of both LSC and non-LSC funds. The restrictions prevent recipients from using any funds (other than tribal funds) for assisting some categories of potential clients (e.g., Part 1626—ineligible non-citizens), engaging in some areas of representation (e.g., Part 1637—prisoner litigation), and undertaking some types of legal action (e.g., Part 1617—class actions). See 45 C.F.R. Part 1610 regarding most restrictions on non-LSC funds.

The restrictions do not bar grantees from having any contact with those potential clients or from discussing those areas of representation or types of legal action. For example, 45 C.F.R. Part 1626 prohibits recipients from “provid[ing] legal assistance,” but allows recipients to conduct intake for and make referrals of non-citizens who are ineligible to receive legal assistance. 45 C.F.R. § 1626.3. The rule recognizes that intake screening and referring individuals to another provider for whatever reason, eligibility-related or not, do not involve the types of legal analysis or legal work covered by the statutory restriction on “provid[ing] legal assistance for or on behalf of” some non-citizens. Pub. L. 104-134, tit. V, § 504(a)(11), 122 Stat. 1321-50, 1321-53 (1996), as incorporated by reference thereafter through Pub. L. 105-119, tit. V, § 502(a)(2), 111 Stat. 2440, 2510 (1998).

In the main definitions section of the regulations, LSC adopted the LSC Act’s definition of legal assistance as “the provision of any legal services consistent with the purposes and provisions of” the LSC Act or other applicable law. 45 C.F.R. § 1600.1; see also 42 U.S.C. § 2996a(2). Through guidance documents, LSC has refined the statutory definition into two types of legal services: “legal assistance” and “legal information.” See LSC Case Service Report (CSR) Handbook at 3-4. These definitions are based on the ABA Standards for the Provision of Civil Legal Aid (2006) regarding full legal representation, limited representation—legal advice or brief services, assistance to pro se litigants, and provision of legal information. SeeABA Standards 3.1, 3.4, 3.5 and 3.6.

Legal Assistance—CSR Handbook § 2.2

Legal assistance is [limited or extended service] specific to the client’s unique circumstances and involves a legal analysis that is tailored to the client’s factual situation. Legal assistance involves applying legal judgment in interpreting the particular facts and in applying relevant law to the facts presented. The provision of legal assistance creates an attorney-client relationship.

Legal Information CSR Handbook § 2.3

[Legal information is] the provision of substantive information not tailored to address a person’s specific legal problem. As such, it is general and does not involve applying legal judgment and does not recommend a specific course of action. For example, providing only a pamphlet or brochure is legal information and not legal assistance. The provision of legal information does not create an attorney-client relationship.

The CSR definition of legal assistance “is synonymous with ‘legal services’” in the Part 1635 definition of a case as a grantee “provid[ing] legal services to one or more specific clients, including . . . advice [and] providing brief services . . . .” CSR Handbook at 2, n. 2; see also 45 C.F.R. § 1635.2(a)(timekeeping). LSC also adopted the CSR definition of legal assistance in the private attorney involvement rule at 45 C.F.R. § 1614.3(e) “for consistency in the treatment of legal assistance and compliance with eligibility screening requirements by both recipients and private attorneys.” 79 Fed. Reg. 61,770; 61,772 (2014) (Final Rule—45 C.F.R. Part 1614).

Analysis

Grantee states in the Agreement that its lawyers are providing representation and forming attorney-client relationships with the individuals assisted at these self-help centers. Furthermore, the Agreement requires that those individuals consent to potential conflicts that could arise based on Grantee’s representing two people with opposing interests in the same case at these clinics. Lastly, the clinic activities could involve an application of legal judgment that would constitute legal assistance. None of the information Grantee has provided to date suggests that the self-help centers are limited to providing legal information. In the absence of any such limitation, Grantee appears to be providing legal assistance subject to the LSC restrictions on non-LSC funded activities.

Whether or not the grantee provides continuous representation is not relevant to determining whether Grantee’s service constitutes legal assistance instead of legal information, because legal assistance includes limited services such as advice and counsel or brief services, which are within the scope of the activities of these clinics. Grantee’s blanket statement that these individuals are not applicants or clients and are automatically eligible is not persuasive, because Grantee does not provide any factual basis for those assertions and the statement directly contradicts the language of the Agreement.

We note that the activities of the self-help centers are not necessarily legal assistance in all situations. For example, grantees can provide “referrals,” “general information about the legal system and law,” and “case status information” to non-clients as legal information without legal representation. Thus, if Grantee limited its clinic activities solely to these services, it could do so without implicating the restrictions. Instead, Grantee has created attorney-client relationships with these participants to provide them with limited representation. That may make management of the clinics easier and reflect Grantee’s intent to provide a range of services including both legal information and legal assistance. But by providing legal assistance, as distinguished from legal information, in at least some cases, Grantee has subjected its activities in those cases to the LSC restrictions on non-LSC funds. As such, Grantee must screen each such case for compliance with those restrictions.

Alternately, Grantee could establish a separate non-LSC funded legal entity to operate these clinics with objective integrity and independence from Grantee, as permitted by 45 C.F.R. § 1610.8. Some LSC grantees have created non-LSC funded sibling entities or subsidiary entities that conduct restricted activities with all of the required separation from the LSC grantee and from the grantee’s LSC-funded and restricted work. The United States Court of Appeals for the Second Circuit determined that the restrictions on non-LSC funds do not facially violate the First Amendment because “[i]t appears likely that LSC grantees with substantial non-federal funding can provide the full range of restricted activity through separately incorporated affiliates without serious difficulty.” Velazquez v. Legal Services Corp., 164 F.3d 757, 767 (2d Cir. 1999).

This opinion supersedes the April 9, 1998 opinion regarding court pro se clinics. LSC Office of General Counsel Letter to Atlanta Legal Aid Society (April 9, 1998). In that opinion, we concluded that the eligibility requirements of 45 C.F.R. Parts 1611 and 1626 did not apply to proposed pro se clinics because individuals attending a clinic (1) did not form an attorney-client relationship with the assisting attorney, (2) did not receive representation, and (3) did not receive “legal assistance” or “legal services” as LSC defines those terms. We understand that court pro se clinics, much like the one analyzed in this Opinion, often involve the formation of attorney-client relationships, the provision of representation, and the provision of individualized legal assistance. Thus, the 1998 opinion would apply only to those limited situations in which a pro se clinic met the very narrow circumstances that opinion addressed. Leaving the opinion operative could potentially lead to confusion about when LSC’s restrictions apply to a court self-help clinic for pro se individuals. For these reasons, the April 9, 1998 opinion is hereby withdrawn as superseded.

Conclusion

The LSC restrictions apply to non-LSC funded legal assistance provided by Grantee staff attorneys at self-help centers where Grantee describes the work as involving the representation of clients and the creation of attorney-client relationships. Grantee must screen these cases and not provide prohibited legal assistance. Alternately, Grantee could operate the centers without LSC restrictions through a non-LSC funded entity with sufficient legal and other separation to maintain objective integrity and independence from Grantee.

RONALD S. FLAGG
General Counsel and Vice President for Legal Affairs

MARK FREEDMAN
Senior Associate General Counsel

STEFANIE K. DAVIS
Assistant General Counsel