QUESTIONS PRESENTED

1. Whether bar associations that appoint the attorney members of a recipient’s governing body under 45 C.F.R. § 1607.3(b)(1) are limited to associations that are open to all licensed attorneys in the recipient’s service area. 
2. Whether a recipient operating in a service area where a majority of the attorneys do not belong to a “State, county or municipal bar association” can comply with 45 C.F.R. § 1607.3(b)(1).

BRIEF ANSWER

I. No. The Legal Service Corporation’s (“LSC’s”) regulations at 45 C.F.R. § 1607.3 implement the governing body requirements of both the LSC Act and the McCollum Amendment.  42 U.S.C. § 2996f(c) and section 502 of LSC’s FY 1983 appropriation, Pub. L. 97-377, 96 Stat. 1874 (1982).  Part 1607.3(b)(1) sets forth requirements regarding composition and appointment for attorney board members:

(b) At least sixty percent (60%) of a governing body shall be attorney members.

(1) A majority of the members of the governing body shall be attorney members appointed by the governing body(ies) of one or more State, county or municipal bar associations, the membership of which represents a majority of attorneys practicing law in the localities in which the recipient provides legal assistance.

(i) Appointments may be made either by the bar association which represents a majority of attorneys in the recipient’s service area or by bar associations which collectively represent a majority of the attorneys practicing law in the recipient’s service area.

45 C.F.R. § 1607.3(b).

Neither the LSC Act, the McCollum Amendment, nor LSC’s regulation requires that the bar association or associations that appoint the attorney members of a recipients governing board be limited to bar associations open to all licensed attorneys in a recipient’s service area.  While it is desirable that the appointing bar associations be open as broadly as possible to all attorneys in a recipient’s service area, there may be circumstances where specialty bar associations may be included among the appointing associations to comply with the requirement that the appointing bars “collectively represent a majority of attorneys in the recipient’s service area.”

II. Yes. A recipient operating in a service area where a majority of the attorneys do not belong to a “State, county or municipal bar association” can comply with 45 C.F.R. § 1607.3(b)(1). 

The LSC Act defines LSC’s core purpose as follows: “providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance.”  42 U.S.C. § 2996b(a); Pub L. No. 104-134, § 501(a)(1), 110 Stat. 1321 (1996).  Where strict adherence to the McCollum Amendment and 45 C.F.R. § 1607.3(b)(1) is impossible, the Amendment and regulation should not be read to thwart the core purpose of the LSC.  See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982).  Accordingly, where a recipient operates in a service area where a majority of lawyers do not belong to a “State, county or municipal bar association,” the recipient must make best efforts to seek appointments for attorney board members from multiple bar associations in an attempt to satisfy the regulatory standard.

BACKGROUND

The question presented here arises out of the efforts of Puerto Rico Legal Services (“PRLS”) to comply with the LSC regulation addressing the composition of recipient governing bodies, 45 C.F.R. § 1607.3(b)(1).[fn]Our understanding of the facts regarding PRLS’s efforts to comply with 45 C.F.R. § 1607.3(b)(1) are based on a Complaint sent July 15, 2018, to LSC’s Office of Inspector General Hotline and LSC’s General Counsel. The representations in the Complaint are supported by attachments to the letter, including the Final Report of the PRLS Special Committee formed to evaluate the procedure to fill vacancies on the governing board and a letter from the PRLS board chairman to board members relaying proposed amendments to PRLS regulations governing attorney board member appointments.[/fn]  Prior to 2018, under Article V(2)(A) of the PRLS Board Regulations, 60 percent of the PRLS Board members (15 of 25 members, including the Board’s President) were required to be appointed by Puerto Rico’s mandatory bar, the Colegio de Abogado y Abogadas Puerto Rico (the Puerto Rico Bar Association, “CAAPR”).  In 2014, however, membership in the CAAPR became voluntary as a result of a Puerto Rico Supreme Court decision.  Rivera Schatz v. ELA y C. Abo. PR II, 191 P.R. Dec. 791 (2014).  Subsequently, membership in the CAAPR dwindled to around 15 percent of the practicing attorneys in Puerto Rico.  This resulted in CAAPR members no longer constituting “a majority of attorneys in the recipient’s service area” and meant that CAAPR could not remain the sole appointing body without violating 45 C.F.R. § 1607.3(b)(1). Consequently, in August 2017, LSC’s Office of Legal Affairs advised PRLS to update its attorney board member appointment procedure to comply with the requirement that board appointments be made by bar associations collectively representing a majority of the practicing attorneys in Puerto Rico.  OLA Advisory Opinion 2017-006.

In its efforts to comply, PRLS identified three Puerto Rican “bar associations of open enrollment” and two agreed to participate in the attorney board member appointment process – CAAPR and the Federal Bar Association (“FBA”).  Memorandum from Chairperson Jaime Ruberte Santiago to PRLS Board Members 2 (April 12, 2018).  Together, CAAPR and FBA represent almost 25 percent of practicing attorneys in Puerto Rico, well below the majority of the attorneys practicing in PRLS’s service area that 45 C.F.R. § 1607.3(b)(1) requires. 

On July 15, 2018, an individual sent a complaint to LSC’s Office of the Inspector General Hotline and LSC’s General Counsel alleging that PRLS had erroneously failed to include the Colegio de Notarios de Puerto Rico (“Puerto Rico Notary Bar Association”) as one of the bar associations that appoints PRLS attorney board members.  All notaries in Puerto Rico are required to be practicing attorneys.  Puerto Rico Board of Bar Examiners, Rules for the Admission of Applicants to the Practice of Law and the Notarial Profession 10 (2013) (Rule 4.3).  To become a notary, one must earn a law degree from an American Bar Association (“ABA”) approved law school, pass the general bar exam, take a Notary Law course in any Puerto Rican law school accredited by the ABA or by the Supreme Court of Puerto Rico and earn at least a “C,” and pass the Notarial Law Exam.  Id. at 9-10, 16 (Rules 4.1, 4.3, and 7.1).  To join the Puerto Rico Notary Bar Association, one must be an attorney and a notary.  The College of Notaries of Puerto Rico has about 1,000 members.  See Puerto Rico Notary Bar Association, Members Directory (last visited Sept. 19, 2018).

APPLICABLE LAW

A.             Section 1007(c) of the LSC Act

LSC’s governing body requirements originate from the LSC Act and LSC’s annual appropriation statutes.  In relevant part, section 1007(c) of the Act provides:

In making grants or entering into contracts for legal assistance, the Corporation shall insure that any recipient organized solely for the purpose of providing legal assistance to eligible clients is governed by a body at least 60 percent of which consists of attorneys who are members of the bar of a State in which the legal assistance is to be provided . . . and at least one-third of which consists of persons who are, when selected, eligible clients who may also be representatives of associations or organizations of eligible clients.

42 U.S.C. § 2996f(c) (emphasis added).  Thus, under the LSC Act, recipient governing bodies must be composed of at least 60 percent attorneys.  Id.

B.    The McCollum Amendment

Section 502 of LSC’s FY 1983 appropriations act, commonly referred to as “the McCollum Amendment” after its sponsor Rep. William McCollum, imposed additional governing body requirements on LSC recipients. Pub. L. 97-377, 96 Stat. 1874 (1982).  Congress has included some version of the McCollum Amendment in all of LSC’s subsequent appropriations, including at section 502 of LSC’s 1996 appropriations act, which has been incorporated by reference every year thereafter.  Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, Title V, § 502(2)(B), 110 Stat. 1321 (April 26, 1996), incorporated by reference in subsequent appropriations, see, e.g., Commerce, Justice, Science, and Related Agencies Appropriations Act, 2012, Pub. L. No. 112-55, Div. B, Title IV, 125 Stat. 629 (2011).  The McCollum Amendment, in its current form and relevant part, provides that:

None of the funds appropriated in this Act to the Legal Services Corporation shall be used by the Corporation to make a grant, or enter into a contract, for the provision of legal assistance unless the Corporation ensures that the person or entity receiving funding to provide such legal assistance is— . . .

(2)  a qualified nonprofit organization, chartered under the laws of a State or the District of Columbia, that—

(A) furnishes legal assistance to eligible clients; and

(B) is governed by a board of directors or other governing body, the majority of which is comprised of attorneys who—

(i) are admitted to practice in a State or the District of Columbia; and

(ii) are appointed to terms of office on such board or body by the governing body of a State, county, or municipal bar association, the membership of which represents a majority of the attorneys practicing law in the locality in which the organization is to provide legal assistance;

Pub L. No. 104-134, § 502(2)(B), 110 Stat. 1321 (April 26, 1996) (emphasis added).  Thus, the McCollum Amendment requires that a bar association that represents a majority of the attorneys practicing law in the area served by the recipient appoint attorneys constituting a majority of the board members. Id. at § 502(2)(B)(2)(ii).

C.    LSC Governing Body Regulations

LSC regulations at 45 C.F.R. §1607.3 implement the governing body requirements of both the LSC Act and the McCollum Amendment:

(b) At least sixty percent (60%) of a governing body shall be attorney members.

(1) A majority of the members of the governing body shall be attorney members appointed by the governing body(ies) of one or more State, county or municipal bar associations, the membership of which represents a majority of attorneys practicing law in the localities in which the recipient provides legal assistance.

(i)  Appointments may be made either by the bar association which represents a majority of attorneys in the recipient's service area or by bar associations which collectively represent a majority of the attorneys practicing law in the recipient's service area.

45 C.F.R. § 1607.3(b).

The prior version and history underlying this regulation are relevant to the question presented here.  The version of 45 C.F.R. § 1607.3 published in 1983 read, in relevant part:  

(c) Appointment of the attorney members of the governing body shall be conducted so that a majority of the governing body are appointed by the governing bodies of State, county or municipal bar associations, the membership of which represents a majority of attorneys practicing law in the localities in which the recipient is to provide legal assistance.  Appointments shall be made to insure that the attorney board members include women and minorities and reasonably reflect the population of the areas served.  Appointments may be either by the bar association which represents a majority of attorneys in the recipient’s service areas or by the bar associations which collectively represent a majority of the attorneys practicing law in the recipient’s service area. 

48 FR 1971 (1983). 

In response to numerous compliance questions from recipients about this provision, LSC published additional guidance later the same year.  The additional guidance did not become a part of Code of Federal Regulations but was identified as an “authoritative interpretation of the amended regulation.”  48 FR 36820 (1983).  The guidance contained the “definition of State, County or Municipal Bar Association”: 

To qualify as a state, county or municipal bar association, a bar association must be open to all licensed attorneys within a designated jurisdiction and not be designed to appeal to a segment of the bar on the basis of racial or ethnic characteristics, gender, religion or specialized interest. Parish, borough, judicial circuit or multicounty bars qualify under this section.

48 FR 36820 (1983) (emphasis added).

The drafting history relating to 45 C.F.R. § 1607.3 did not end, however, in 1983.  LSC published the current version of 45 C.F.R. § 1607.3 (quoted above) in 1994.  In revising the rule in 1994, LSC issued the following guidance relevant to the question presented here:

The McCollum Amendment requires a majority of the board members to be appointed by appropriate state, county and municipal bar associations. The revision clarifies that the appointments can be made by one or more such bar associations, as long as those bar associations collectively represent a majority of attorneys practicing law in the recipient's service area. If there are minority or gender-based bar associations that represent attorneys practicing in a particular locality, those bar associations may be included in the mix of bar associations that make appointments of attorneys to a recipient's board, especially if their inclusion would help to insure that there is appropriate diversity among the attorney members of the board.

59 FR 65249 (1994) (emphasis added).

ANALYSIS

I. Whether bar associations that appoint the attorney members of a recipient’s governing body under 45 C.F.R. § 1607.3(b)(1) are limited to associations that are open to all licensed attorneys in the recipient’s service area.

45 C.F.R. § 1607.3(b)(1)(i) provides that, where no single bar association “represents a majority of attorneys in the recipient’s service area,” the recipient must identify “bar associations which collectively represent a majority of the attorneys practicing law in the recipient's service area” to appoint its attorney board members.  Because no single bar association represents a majority of attorneys practicing in Puerto Rico, PRLS identified three Puerto Rican “bar associations of open enrollment” and invited them to participate in making attorney board member appointments.  Memorandum from Chairperson Jaime Ruberte Santiago to PRLS Board Members 2 (April 12, 2018).  CAAPR and FBA agreed to participate.  Jointly, CAAPR and FBA represent about 25 percent of practicing attorneys in Puerto Rico, and thus fall far short of the majority required by 45 C.F.R. § 1607.3(b)(1). 

The question presented here arises from PRLS’s decision to limit the bar associations appointing members to it governing board to “bar associations of open enrollment.”  The idea of “open enrollment” likely arises from guidance LSC published in 1983 quoted above.  PRLS may have considered the Puerto Rico Notary Bar Association a bar association of specialized interest and, as such, not eligible to appoint PRLS attorney board members.

The 1994 amendment and guidance issued by LSC (quoted above) rendered obsolete the 1983 version of the regulation and the associated guidance.  As such, the 1983 guidance against using bar associations “designed to appeal to a segment of the bar on the basis of racial or ethnic characteristics, gender, religion or specialized interest” does not control what constitutes a “State, county or municipal bar association” for the purpose of 45 C.F.R. Part 1607.3.

Nothing in the LSC Act, the McCollum Amendment, or 45 C.F.R. § 1607.3 requires that a “State, county, or municipal bar association” be open to all licensed attorneys for the association to qualify to make attorney appointments to a recipient’s board.  To the contrary, as the 1994 guidance points out, such a requirement can undermine compliance with the requirement of 45 C.F.R. § 1607.3(b)(1) that recipients designate a bar association or bar associations that collectively represent a “majority of attorneys practicing law in the recipient's service” area to fill attorney board member vacancies.

To comply with 45 C.F.R. § 1607.3(b)(1), PRLS must look beyond “bar associations of open enrollment” and recruit a “mix of bar associations” that represent the majority of practicing attorneys in Puerto Rico to appoint PRLS attorney board members.  See 59 FR 65249, 65249 (1994).  To accomplish this, PRLS should identify additional bar associations – such as the Puerto Rico Notary Bar Association – to appoint PRLS attorney board members.

Neither the LSC Act, the McCollum Amendment, nor the implementing regulations define the term “bar association” for purposes of 45 C.F.R. § 1607.3.  The Puerto Rico Notary Bar Association is made up exclusively of attorneys practicing throughout the Commonwealth of Puerto Rico.  As such, the Puerto Rico Notary Bar Association falls within the definition of a “State, county or municipal bar association” for purposes of 45 C.F.R. § 1607.3(b)(1).  Applying a more restrictive definition to the phrase “State, county or municipal bar association” would undermine compliance with the statutory command that attorney board members be appointed by “a majority of the attorneys practicing law in the locality in which the organization is to provide legal assistance.”  Pub L. No. 104-134, § 502(2)(B), 110 Stat. 1321 (1996).  The phrase should not be interpreted in a way that precludes statutory compliance.

II. Whether a recipient operating in a service area where a majority of the attorneys do not belong to a “State, county or municipal bar association” can comply with 45 C.F.R. § 1607.3(b)(1).

The LSC Act defines LSC’s core purpose: “providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance.”  42 U.S.C. § 2996b(a).  LSC’s appropriation acts authorize LSC to make basic field program funds “available for each geographic area on a per capita basis relative to the number of individuals in poverty,” and Puerto Rico is one of LSC’s geographic areas.  Pub L. No. 104-134, §501(a)(1), 110 Stat. 1321 (1996). 

It appears possible, if not likely, that a majority of attorneys in PRLS’s service area are not members of a “State, county or municipal bar association.”  Under these circumstances, strict adherence to the terms of the McCollum Amendment and 45 C.F.R. § 1607.3(b)(1) would defeat the core purpose of the LSC Act and LSC appropriation – providing financial support for legal assistance in each of LSC’s geographic areas to those unable to afford it.  Where strict adherence to a statutory or regulatory provision is impossible, the provision should not be interpreted to thwart the core purpose of a statute.  See Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982) (quoting Commissioner v. Brown, 380 U.S. 563, 571 (1965) (“[I]n rare cases the literal application of a statute will produce a result demonstrably at odds with the intentions of its drafters. . . . We have reserved some ‘scope for adopting a restricted rather than a literal or usual meaning of its words where acceptance of that meaning . . . would thwart the obvious purpose of the statute.’”).  Therefore, where a recipient operates in a service area where a majority of lawyers do not belong to a “state, county or municipal bar association” the recipient must make best efforts to seek appointments for attorney board members from multiple bar associations in an attempt to satisfy the regulatory standard.  In this instance, PRLS should make best efforts to identify additional bar associations – such as the Puerto Rico Notary Bar Association – to appoint PRLS attorney board members.

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

KARLY SATKOWIAK
Graduate Law Fellow
Office of Legal Affairs