Private Attorney Involvement FAQs
A. Definition of Private Attorney (updated 10-28-2015)
C. Law Students (updated 10-28-2015)
E. Clinics (updated 10-28-2015)
A. Definition of Private Attorney
- What if an attorney is not licensed in the state in which the client's legal case is filed, but will be admitted pro hac vice and will co-counsel the case with a recipient attorney?
- The attorney meets the 45 CFR § 1614.3(a) definition of "attorney." That definition states that "attorney means a person who is authorized to practice law in the jurisdiction in which assistance is rendered." (Emphasis added.) Even if the attorney is admitted only for the purpose of representing an individual in the case that he or she is co-counseling with the recipient, that person is an "attorney" within the meaning of § 1614.3(a).
- Under what, if any, circumstances may a government attorney be used for PAI? If a government attorney for an agency such as EEOC is separately handling a case involving the same claims and the same client as a recipient, would that be considered PAI?
- LSC revised the definition of "private attorney" in part to clarify that government attorneys may participate in a recipient's PAI activities. This means that a government attorney may, to the extent authorized by the terms of his or her employment with the government, represent a recipient's clients, provide legal information in a clinic, or otherwise provide support to the recipient as part of the recipient's PAI program. The EEOC-common interest litigation scenario described in the question, however, would not count as PAI. The EEOC attorney may share an interest in the handling and outcome of the case, but because the attorney is engaging with the recipient's client as part of her government employment, rather than volunteering in a case she would not otherwise be participating in, her involvement does not count as PAI. For similar reasons, her work would not count as support to the recipient for PAI purposes.
- Are full-time fellows who receive a living allowance or a salary from a third party, such as AmeriCorps VISTA fellows, Equal Justice Works fellows, or Skadden fellows, to work for a recipient "private attorneys" for purposes of the PAI rule?
- No. LSC considers full-time fellows at a recipient, regardless of their funding source, to be employed by the recipient for purposes of the PAI rule. This is true regardless of whether the funding is characterized as a salary, stipend, living allowance, or subsistence allowance; as well as whether the recipient is providing any compensation of its own.
- According to the new rule, the term "private attorney" excludes an attorney who is "acting within the terms of his or her employment by a non-profit organization whose primary purpose is the delivery of free civil legal services to low-income individuals" or who is "acting within the terms of his or her employment by a component of a non-profit organization, where the component's primary purpose is the delivery of free civil legal services to low-income individuals." How does a recipient determine if the organization's or component's primary purpose is the delivery of free legal services to low-income individuals: by looking to the mission statement, by-laws, use of income screening, or other factors?
- Recipients can look at a variety of sources to determine if an organization's or component's primary purpose is the delivery of free legal services to low-income individuals, including those listed above. Recipients may also consider an organization's articles of incorporation, public statements of purpose, and other official documentation that describes the organization's mission and purpose. Please note that the absence of income screening is not dispositive of whether an organization primarily provides free legal services to low-income individuals.
- Does the "primary purpose" exclusion apply only to attorneys who are handling cases, or does it also apply to attorneys engaged in PAI support activities?
- It applies to all attorneys providing direct delivery of legal assistance or participating in support activities that are part of a recipient's PAI program.
- Are attorneys employed by law firms who participate in a "loaned associate" program in which they work at a recipient for a discrete period of time, then return to the firm, considered private attorneys?
- Yes. Attorneys working at a recipient for a discrete period of time as part of a firm-sponsored loaned associate program are private attorneys for purposes of Part 1614.
- It is important to distinguish between loaned associates, who are attorneys actually employed by a firm, and the post-graduate fellows discussed above in question 3. Generally speaking, post-graduate fellows are recent law school graduates who commit to working on a specific project at a legal aid organization for a one- or two-year term. Some fellows, such as Skadden fellows, may be sponsored or funded by a law firm, but they are not employees of the firm. They are considered employees of the legal aid organization for purposes of Part 1614.
- (Added 10-28-2015) A recent law graduate who has passed the Bar and has been admitted to practice in our state will be volunteering in one of our offices. She has no employer at this time. We expect her to advise/represent eligible clients in various areas of law. Can we count her cases as PAI or should they be staff cases?
Based on the facts presented, the volunteer would qualify as a private attorney under § 1614.3(a) because she is licensed to practice in your state and you do not employ her on a full-time or part-time basis. Her cases may be counted toward the PAI requirement if she provides the highest level of service on the case, consistent with Section 10.1(b)(iv) of the CSR Handbook.
B. Recruitment and Training Involving Private Attorneys
- Can I count staff time spent recruiting private attorneys to participate in our PAI program toward the PAI requirement?
- Yes. The costs of recruiting must meet the standards set forth in 45 CFR Part 1630 for allocating costs to your LSC grant.
- When an attorney attends a CLE or bar association event to recruit pro bono attorneys, can the recipient allocate costs incurred for the attorney's travel to the event and attendance at the event?
- It depends. In order for a recipient to allocate any costs to the PAI requirement, the purpose of the event and the purpose of the attorney's attendance must be related to recruiting private attorneys to participate in the recipient's PAI program. A recipient may not allocate costs associated with attending general bar association events or CLEs to the PAI requirement simply because the recipient interacts with private attorneys. Recipients must comply with the fiscal recordkeeping requirements in 45 CFR § 1614.7 and the standards for allocating costs at 45 CFR Part 1630.
- Would trainings provided to public defenders and district attorneys regarding the educational rights of juveniles in detention be considered PAI?
- No. Trainings provided by recipient staff to other attorneys to inform them about issues that may be faced by mutual clients or client populations are not PAI. Training private attorneys on a particular area of law in preparation to provide legal information and legal assistance to eligible clients at a clinic would count as PAI, because the training is necessary for the private attorneys to serve individuals attending the clinic. Trainings provided to other attorneys to raise awareness of issues that may affect their clients, such as the educational rights of juveniles, appear to be more akin to continuing legal education that is not PAI than to engaging private attorneys in the provision of legal information and legal assistance to eligible clients.
- May a recipient allocate costs associated with developing and providing training on a substantive area of law to private attorneys?
- Yes, generally. Training provided by the recipient to private attorneys may be counted as a support activity under 45 CFR § 1614.4(b)(3) if the training is provided in furtherance of its PAI program. For example, if a recipient provides training to private attorneys on public benefits in an effort to recruit private attorneys to accept public benefits cases on referral, or to participate in a PAI clinic serving individuals with public benefits issues, the costs associated with developing and providing that training would be allocable to the PAI requirement. It is not necessary for recipients to require attorneys attending the training to take a pro bono case in order to allocate the costs to the PAI requirement.
- May the recipient allocate to the PAI requirement costs associated with the training and with supervision of a private attorney who takes a case as a requirement of attending the training if the private attorney receives CLE credit for participating?
- Yes. For purposes of allocating costs to the PAI requirement, it does not matter whether the private attorney receives CLE credit.
- Regarding the new PAI rule on counting supervision and mentoring time for law students under PAI requirements, can the time of the attorney used to recruit, interview, and conduct other activities to obtain the student volunteers count too? For example, I have so far spent about 15 hours in reviewing summer intern applications, a full day of interviews, following up with offers, and confirming start dates. Does this count as PAI under the new rules?
- Yes. Because recipients may now allocate costs to PAI associated with law student work supporting the recipients' provision of legal information and legal assistance to eligible clients, recipients may also allocate costs associated with recruiting and hiring law students. This is consistent with allowing recipients to allocate costs associated with recruitment of private attorneys to the PAI requirement.
C. Law Students
- We would like to count work that law students provide toward the PAI requirement. Does their work have to be supervised by a staff attorney in order to count?
- Generally, yes. Recipients may involve law students in providing legal information and legal assistance to eligible clients. While staff attorneys will most often supervise the students' work, there may be instances in which a non-attorney employee of the recipient is responsible for supervising the students' work. For example, a paralegal who normally handles SSI cases may supervise a student working on a client's SSI case. The costs allocated to the PAI requirement are those invested by the program in supervising and training the law students, as well as any overhead costs incurred in supporting the students while working for the recipient.
- If a law student represents a recipient's client in court pursuant to a student practice rule, can we count that case as a PAI case?
- No. Part 1614 allows recipients to count two types of law student activities as PAI: representation in an administrative tribunal where permitted by law, and support to the recipient's provision of legal information or delivery of legal information to eligible clients. The law student's representation may be considered support under 45 CFR § 1614.4(b)(7), however, and you may allocate costs incurred in supervising and hosting the law student to the PAI requirement.
- Can amounts paid by a recipient to cover a law student's costs and expenses be considered "actual costs and expenses" and allocated to the PAI requirement? For example, can a recipient count a stipend paid to law students to defray housing and food costs while working over the summer in a rural area toward the PAI requirement?
- No. Section 1614.4(b)(7) prohibits allocating compensation paid to law students to the PAI requirement. LSC considers stipends to be compensation for purposes of the PAI rule.
- What if the recipient directly provides an apartment in the rural area for use by the law students?
- The recipient's costs associated with providing the apartment would constitute compensation to the law students. They would not be allocable to the PAI requirement.
- (Added 10-28-2015) Local Law School (Local) provides us with funding for summer law clerks. They pay $5,000 per student. We get a check from Local. We then pay the students and ensure that they complete their required terms of service. We are a pass through for the funds, but must pay the students directly with funding from Local since we supervise the students. Can we count the amount that we are provided by Local toward our PAI requirement?
No. LSC considers compensated summer law clerks to be employees of the recipient for purposes of the PAI rule, even though they are getting paid by a third party to work as a full-time clerk at the recipient. You may still count time spent supervising the student, plus associated overhead and other costs, to the PAI requirement.
D. Other Professionals
- We want to use professionals other than lawyers in our PAI program, and we want to pay them for their services. Can we do that?
- Yes. In order to count toward your PAI requirement, however, fees paid to other professionals may not exceed 50% of the local prevailing market rate for the service provided by the other professional. This is also true for fees paid to private attorneys.
- What does it mean for "other professionals" to provide support "in their areas of expertise"?
- It depends. In the preamble to the final rule, we gave two examples of other professionals using their expertise to help recipients deliver legal information and legal assistance to eligible clients. The first example was a volunteer paralegal representing a recipient's client in a Supplemental Security Income case. The second was a volunteer accountant providing a legal information program on the earned income tax credit. LSC intended to allow recipients to allocate costs associated with obtaining particular technical knowledge that may not be unique to lawyers and that recipients need to effectively carry out their programs.
(Note: Questions 1–5 below and their respective answers relate to the scenario presented in the first question in this section.)
- We will be working with the local bar to put on general informational workshops open to both eligible and non-eligible clients. Can we count costs incurred in setting up the workshops toward our PAI requirement?
- Yes, if the workshops are legal information workshops. 45 CFR § 1614.4(b)(4) allows recipients to provide support to courts or bar associations that are establishing legal information clinics. Once the clinic is operational, 45 CFR § 1614.4(b)(5)(i) permits recipients to allocate to the PAI requirement costs associated with their support to a PAI clinic that provides only legal information, regardless of whether the clinic screens for eligibility.
- If the workshop also has a portion for specific advice, and intake eligibility is determined, can the program count as PAI cases advice given to eligible clients by the volunteer attorneys?
- If ineligible clients are also given advice by the volunteer attorneys, while it is clear those cases cannot be counted, does it affect whether we can count the time spent helping the bar establish the workshop component toward the PAI requirement?
- No. Recipients may allocate costs to the PAI requirement associated with helping the bar association to establish the entire workshop, regardless of whether the legal advice portion screens for eligibility. Once the clinic is operating, however, recipients must follow 45 CFR § 1614.4(b)(5) in order to allocate costs incurred in supporting the clinic to the PAI requirement. In other words, under 45 CFR § 1614.4(b)(5)(i), recipients may also allocate costs to the PAI requirement associated with facilitating the legal information portion of the workshop. Under 45 CFR § 1614.4(b)(5)(ii), the recipient's private attorneys CANNOT provide legal assistance to unscreened or ineligible individuals as part of the recipient's support for the workshop.
- Under the same scenario, would the recipient still be able to count all persons who attended the informational workshop under "other services"?
- What if the above workshop is offered as just an advice clinic and eligibility is screened with both eligible and ineligible clients getting advice? How would that affect the time spent arranging the clinic? What, if any, other requirements are necessary to separate out the eligible from ineligible advice cases? If eligible and ineligible individuals are separated and the legal assistance for the eligible individuals is handled by a private attorney who handles exclusively eligible individuals, can they be counted as PAI cases and the time the program spends supervising the work on those cases be counted toward the PAI requirement?
- As stated above, the fact that the clinic ultimately provides legal assistance to both eligible and ineligible clients does not affect whether a recipient may help the bar association develop the workshop and allocate the costs of that help to the PAI requirement. At the current time, LSC does not have additional requirements for separating ineligible and eligible clients beyond those stated in 45 CFR § 1614.4(b)(5)(ii). If the clinic provides legal assistance to both eligible and ineligible clients, the recipient may allocate costs to the PAI requirement associated with the screening and with providing legal assistance to eligible clients. The recipient may count legal assistance provided to an eligible individual as a CSR case if the individual is screened in accordance with 45 CFR § 1614.4(b)(5)(ii), determined to be eligible, accepted as a client of the recipient, and all other provisions of Chapter II of the LSC CSR Handbook are met.
- (Added 10-28-2015) A recipient offers a clinic at which individuals receive advice and limited assistance filling out court forms. Individuals arrive and complete a brief intake form, which includes income information and a citizenship attestation. They then attend a legal information session provided by a private attorney. Individuals who wish to meet with the private attorney to get advice and assistance completing the forms are screened for eligibility by the program staff (who is not authorized to provide legal assistance) and receive forms and some guidance on completing the forms. Individuals may complete the form at the clinic and consult with the private attorney, who will review and provide legal advice (and documents that advice and includes it in the individual’s file). Alternatively, some individuals may leave with the forms and complete them on their own without consulting the private attorney. May the costs for the clinic be allocated to the PAI requirement even though not all clients see a private attorney?
Yes. The clinic is one in which the private attorney provides legal information to all individuals who attend, plus legal assistance to those individuals who want to meet with the private attorney and are eligible for LSC-funded legal assistance. Recipient staff provides support to the private attorney. Consequently, costs associated with the initial limited screening and the full screening, the legal information presentation conducted by the private attorney, legal assistance provided to LSC-eligible clients by the private attorney, and any overhead costs incurred, may be allocated to the PAI requirement.
F. Support Provided by Private Attorneys to Recipients
- If a law firm provides space for a recipient's attorney to provide training to clients, can the recipient allocate the time spent delivering the training to the PAI requirement?
- No. The donation of space is purely a donation to the recipient and is not PAI. The recipient may allocate costs associated with the time its staff spent working with the firm to secure space to the PAI requirement under 45 CFR § 1614.4(b)(1).
- Can the time a recipient's staff attorney spends using a private firm's research system be allocated to PAI?
- No, for the reason stated above. Again, the recipient may allocate costs associated with the time its staff spent working with the firm to obtain permission and access to its research system to the PAI requirement.
If you have any questions regarding this FAQ, please email us. We intend to update this guidance as we receive questions about the operation of the rule that have answers, which generally will be applicable to Private Attorney Involvement (PAI) programs.