Office of the General Counsel
External Opinion: 98-53
...the meaning of "private attorney" in 45 CFR Part 1614...
Vernon Lewis, Director
West Texas Legal Services
600 E. Weatherford Street
Fort Worth, Texas 76102
Dear Mr. Lewis:
This is a response to your October 16, 1998 request for an opinion on the meaning of "private attorney" in 45 CFR Part 1614 and whether staff attorneys employed by West Texas Legal Services (WTLS) who engage in pro bono legal assistance activities on their own time are private attorneys for the purposes of Part 1614.
Part 1614 sets out the Corporation's policies regarding the use of private attorneys by recipients in the provision of legal assistance to the poor. Recipients are required to devote at least 12.5% of their funds in the involvement of private attorneys in the provision of legal services. §1614.1(a). This is commonly referred to as the PAI requirement. Id. "Private attorney" is defined in §1614.1(d) as:
an attorney who is not a staff attorney as defined in Section 1600.1 of these regulations.
"Staff attorney" is defined in §1600.1 as: an attorney more than one half of whose annual professional income is derived from the proceeds of a grant from the Legal Services Corporation or is received from a recipient, subrecipient, grantee, or contractor that limits its activities to providing legal assistance to clients eligible for assistance under the Act.
According to this definition, a staff attorney is either an attorney who receives at least 51% of his professional income from LSC grant funds or who receives at least 51% of his income from a recipient, subrecipient, grantee or contractor that limits its activities to the provision of legal assistance to eligible clients. Since there are few, if any, LSC recipients that currently limit their activities to providing legal assistance to clients eligible for legal assistance under the LSC Act, most staff attorneys fall in the category of attorneys who receive at least 51% of their professional income from LSC grant funds.
You have asked whether WTLS' staff attorneys may engage in legal assistance activities on their own time and whether such legal assistance may be allocated to WTLS' PAI requirement. According to §1614.1(a), only legal assistance provided by private attorneys may be allocated to a program's PAI requirement. If an attorney falls within the definition of "staff attorney," that attorney is not a private attorney and any legal assistance provided by that attorney may not be applied to the recipient's PAI requirement, regardless of whether the legal assistance is provided on the attorney's own time. It is the fact that an attorney is a staff attorney that controls, not whether the attorney engages in legal assistance during or outside of program time.
This is consistent with the purpose of the PAI policy which is to "expand the number of private attorneys involved in the delivery of legal assistance to poor people." Preamble to final rule, 45 CFR Part 1614, 50 Fed. Reg. 48587 (November 26, 1985). The definition of "private attorney" was added to the rule in 1985 because the LSC Board discovered that some programs were laying off staff attorneys and then would contract to pay these attorneys for doing the same work they had done before as staff. Id. In order to stop the practice of allocating the legal assistance engaged in by such attorneys to PAI, the Board added the definition of "private attorney" in 1985. Id. The Board retained the definition in a revision to the rule in 1986 and added another provision which prohibits the allocation of PAI funds to any former staff attorney for a period of two years after the attorney no longer works for the recipient. Preamble to final rule, 51 Fed. Reg. 21558 (June 13, 1986).
I hope this adequately responds to your inquiry. Please let me know if I can provide any additional assistance in this matter.
/s/ Suzanne B. Glasow
Senior Assistant General Counsel