Restrictions by Funders and the Ethical Practice of Law

Fordham Law Review

Volumn 67, Issue 5, 1999, Pages 2187-2239

  Houseman, Alan W ^a  

^a NONE

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EID: 0347721879     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (318)

1. Russell G. Pearce et al., Ethical Issues Panel, 25 Fordham Urb. L.J. 357, 388 (1998) (panel discussion comments of Stephen Gillers).
2. See infra Part I.A (discussing the LSC restrictions in detail).
3. See Pearce et al., supra note 1, at 371-87 (panel discussion comments of Stephen Ellmann); id. at 368-71 (panel discussion comments of Emily J. Sack). The Committee on Civil Rights and the Committee on Professional Responsibility of the Association of the Bar of the City of New York asserted in a recent article that the 1996 restrictions "conflict with the basic ethical precepts requiring an attorney to act in the client's best interest, to represent the client zealously and to exercise independent judgment." Committees on Civil Rights and Prof'l Responsibility, A Call for the Repeal or Invalidation of Congressional Restrictions on Legal Services Lawyers, 53 Record of the Ass'n of the Bar of the City of New York 13, 55 (1998).
4. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399 (1996).
5. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Pub. L. No. 105-119, § 502, 111 Stat. 2440, 2510 (1997); Omnibus Consolidated Appropriations Act of 1997, Pub. L. No. 104-208, § 502, 110 Stat. 3009, 3009-59 (1996).
6. See Legal Services Corp., 1996 Fact Book 9 (1997).
7. See Alan W. Houseman, Address: Interpretation of LSC Restrictions, 25 Fordham Urb. L.J. 285, 287 (1998) [hereinafter Houseman, Address].
8. Although it is not the subject of this Article, it is necessary to point out that those who care about equal justice for the poor must take whatever steps possible to remove restrictions on which clients can be served and what legal services can be provided. Perhaps the most pernicious is the restriction on the use of non-LSC funds by LSC-funded recipients, which dries up funding sources that have in the past and would have in the future provided resources to serve the critical legal problems of low-income clients. In addition, the restrictions on class actions, claiming attorneys' fees, and welfare reform limit what can be done for clients, putting those served by LSC recipients at a disadvantage not faced by adverse parties. On the merits, restrictions on advocacy are unnecessary to address perceived problems, are unjustified, and deny low-income persons equal access to our system of justice. The principles of equal justice do not distinguish between one group of clients and another, between the deserving and the undeserving poor, whether they be welfare recipients, aliens, prisoners, or persons charged with drug offenses who reside in a public housing project. Nor should low-income persons be foreclosed from bringing class actions to vindicate their rights, claiming attorneys' fees that are available by law, or seeking necessary relief that is only available from legislative or administrative bodies. It has been this author's experience as one of the chief lobbyists for preserving an effective, professional LSC that current arguments about the ethical impact of restrictions have little appeal to either supporters or critics of civil legal assistance and are not likely to persuade anyone to oppose restrictions. Unfortunately, the task of removing existing restrictions and preventing future restrictions requires a long term effort at education and persuasion and the development of a much more widespread base of public support. The discussion of this long-term strategy is not the subject of this Article nor the focus of this symposium, but it is the fundamental task for all of those who believe in equal justice for low-income people.
9. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 504, 110 Stat. 1321, 1321-53; 45 C.F.R. § 1610.3-.4 (1998).
10. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504(a)(2)-(6), 110 Stat. at 1321-53; 45 C.F.R. § 1612.6.
11. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504(a)(7), 110 Stat. at 1321-53; 45 C.F.R. § 1617.3.
12. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 508 (b)(2)(B), 110 Stat. 1321-57 to -58.
13. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504(a)(13), 110 Stat. at 1321-55; 45 C.F.R. § 1642.3.
14. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504(a)(16), 110 Stat. at 1321-55; 45 C.F.R. § 1639.3.
15. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504(a)(1), 110 Stat. at 1321-53; 45 C.F.R. § 1632.3.
16. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504(a)(14), 110 Stat. at 1321-53.
17. See id. § 504(a)(11), 110 Stat. at 1321-54 to -55; 45 C.F.R. § 1626.3.
18. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504(a)(15), 110 Stat. at 1321-55; 45 C.F.R. § 1637.
19. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504(a)(17), 110 Stat. at 1321-56; 45 C.F.R. § 1633.3.
20. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504(a)(8), 110 Stat. at 1321-56; 45 C.F.R. § 1636.2.
21. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, § 504(a)(12), 110 Stat. at 1321-55; 45 C.F.R. § 1612.8.
22. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act of 1998, Pub. L. No. 105-119, 111 Stat. 2440 (1997).
23. See id., § 504(a)(8), 111 Stat. at 2511.
24. See id., § 501 (b), 111 Stat. at 2510 (stating that sections 1007(a)(9) and 1011 of the LSC Act "shall not apply to the provision, denial, suspension, or termination of any financial assistance using funds appropriated in this Act").
25. See id., § 505(a), 111 Stat. at 2511; 45 C.F.R. § 1644.1-.4 (1998).
26. See Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, tit. V, 112 Stat. 2681, 2681-107 (1998).
27. The 1998 elections did not affect the number of Congressmembers who support and oppose legal services.
28. See Houseman, Address, supra note 7, at 298-301. There were considerable differences among opponents on how to kill LSC. In September 1995, the House Judiciary Committee reported out the Legal Aid Act of 1995, H.R. 2277, 104th Cong. (1995), which would have radically altered the current federally funded legal services program by eliminating the Legal Services Corporation and by sending funds to the states for allocation under the rubric of "block grants." Over a four-year period, block grant funds could be used for only a limited range of services and causes of action, subject to severe restrictions, and state legal services funds were subject to the same restrictions as those that applied to the federal funds. The House leadership, however, wanted to end legal services within two years and decided to let reauthorization for the Legal Services Corporation languish. See Legal Services Legislative Update, PAG Update (Project Advisory Group, Nat'l Orgs. of Legal Servs. Programs, Wash., D.C.), Nov. 1, 1995, at 1, 1. The original House appropriation for fiscal year 1997 included only $141 million for LSC, putting it on a "glide path to elimination." House Appropriations Subcommittee Holds Hearings on FY 1997 Funding for LSC, PAG Update (Project Advisory Group, Nat'l Orgs. of Legal Servs. Programs, Wash., D.C.), April 17, 1996, at 1, 1. The full House, however, subsequently raised the LSC funding to $250 million. See 142 Cong. Rec. H7853 (daily ed. Sept. 25, 1997). Similar proposals came from the House Appropriations Committee for fiscal year 1998 and fiscal year 1999 and were again changed on the House floor. See 144 Cong. Rec. H6973 (daily ed. Aug. 3, 1998); 143 Cong. Rec. H7853 (daily ed. Sept. 25, 1997).
29. See Houseman, Address, supra note 7, at 298-301. There were considerable differences among opponents on how to kill LSC. In September 1995, the House Judiciary Committee reported out the Legal Aid Act of 1995, H.R. 2277, 104th Cong. (1995), which would have radically altered the current federally funded legal services program by eliminating the Legal Services Corporation and by sending funds to the states for allocation under the rubric of "block grants." Over a four-year period, block grant funds could be used for only a limited range of services and causes of action, subject to severe restrictions, and state legal services funds were subject to the same restrictions as those that applied to the federal funds. The House leadership, however, wanted to end legal services within two years and decided to let reauthorization for the Legal Services Corporation languish. See Legal Services Legislative Update, PAG Update (Project Advisory Group, Nat'l Orgs. of Legal Servs. Programs, Wash., D.C.), Nov. 1, 1995, at 1, 1. The original House appropriation for fiscal year 1997 included only $141 million for LSC, putting it on a "glide path to elimination." House Appropriations Subcommittee Holds Hearings on FY 1997 Funding for LSC, PAG Update (Project Advisory Group, Nat'l Orgs. of Legal Servs. Programs, Wash., D.C.), April 17, 1996, at 1, 1. The full House, however, subsequently raised the LSC funding to $250 million. See 142 Cong. Rec. H7853 (daily ed. Sept. 25, 1997). Similar proposals came from the House Appropriations Committee for fiscal year 1998 and fiscal year 1999 and were again changed on the House floor. See 144 Cong. Rec. H6973 (daily ed. Aug. 3, 1998); 143 Cong. Rec. H7853 (daily ed. Sept. 25, 1997).
30. See Houseman, Address, supra note 7, at 298-301. There were considerable differences among opponents on how to kill LSC. In September 1995, the House Judiciary Committee reported out the Legal Aid Act of 1995, H.R. 2277, 104th Cong. (1995), which would have radically altered the current federally funded legal services program by eliminating the Legal Services Corporation and by sending funds to the states for allocation under the rubric of "block grants." Over a four-year period, block grant funds could be used for only a limited range of services and causes of action, subject to severe restrictions, and state legal services funds were subject to the same restrictions as those that applied to the federal funds. The House leadership, however, wanted to end legal services within two years and decided to let reauthorization for the Legal Services Corporation languish. See Legal Services Legislative Update, PAG Update (Project Advisory Group, Nat'l Orgs. of Legal Servs. Programs, Wash., D.C.), Nov. 1, 1995, at 1, 1. The original House appropriation for fiscal year 1997 included only $141 million for LSC, putting it on a "glide path to elimination." House Appropriations Subcommittee Holds Hearings on FY 1997 Funding for LSC, PAG Update (Project Advisory Group, Nat'l Orgs. of Legal Servs. Programs, Wash., D.C.), April 17, 1996, at 1, 1. The full House, however, subsequently raised the LSC funding to $250 million. See 142 Cong. Rec. H7853 (daily ed. Sept. 25, 1997). Similar proposals came from the House Appropriations Committee for fiscal year 1998 and fiscal year 1999 and were again changed on the House floor. See 144 Cong. Rec. H6973 (daily ed. Aug. 3, 1998); 143 Cong. Rec. H7853 (daily ed. Sept. 25, 1997).
31. See Legal Servs. Corp., Budget Request for Fiscal Year 1999, at 29-31 (1998).
32. See Earl Johnson, Jr., Justice and Reform: The Formative Years of the American Legal Services Program 106-16 (1993).
33. See John A. Dooley & Alan W. Houseman, Legal Services History ch. 1, at 9 (Nov. 1985) (unpublished manuscript, on file with the Fordham Law Review).
34. See id. at 9-10.
35. Pub. L. No. 93-355, 88 Stat. 378 (1974) (codified at 42 U.S.C. § 2996 (1994)).
36. See Dooley & Houseman, supra note 31, ch. 1, at 9-18.
37. See id.
38. See id., ch. 1, at 15-16.
39. See id., ch. 1, at 16.
40. See Warren E. George, Development of the Legal Services Corporation, 61 Cornell L. Rev. 681, 698 (1976); Dooley & Houseman, supra note 31, ch. 1, at 16-18.
41. See An Act to Amend the Legal Services Corporation Act to Provide Authorization of Appropriations for Additional Fiscal Years, and for Other Purposes, Pub. L. No. 95-222, 91 Stat. 1619 (1977) (codified at 42 U.S.C. § 2996 (1994)).
42. See Legal Services Corporation Act of 1974, Pub. L. No. 93-355, 88 Stat. 378 (codified at 42 U.S.C. § 2996 (1994)); Dooley & Houseman, supra note 31, ch. 3, at 3-5.
43. The LSC Act does not have a sunset provision, thus the Act remains in effect. See Dooley & Houseman, supra note 31, ch. 3, at 3. Spending was authorized, however, for fiscal years 1978-80. See 42 U.S.C. § 2996i(a) (1994).
44. See 42 U.S.C. § 2996e(d)(5).
45. Id. § 2996f(a)(7).
46. See id. § 2996g(a).
47. See id. § 2996g(b).
48. See id. § 2996h(c)(1).
49. See id. § 2996h(d).
50. See id. § 2996f(a)(5).
51. See id. § 2996f(a)(5)(B)(ii).
52. See U.S. Comptroller General, Formal Op. B-202116 (1981).
53. See 42 U.S.C. § 2996f(b)(1).
54. See id. § 2996f(a)(2)(A).
55. See id. § 2996f(b)(2).
56. See id. § 2996f(b)(3).
57. See. id. § 2996f(b)(8).
58. See id. § 2996f(b)(9).
59. See id. § 2996f(b)(10).
60. See id. §§ 2996e(d)(4), 2996f(b)(4).
61. See id. § 2996f(b)(7).
62. See id. § 2996f(b)(6).
63. See id. § 2996e(b)(5).
64. See id. § 2996e(e)(2).
65. See id. § 2996e(e)(1).
66. See id. § 2996(f)(a)(6).
67. The LSC regulations are located at 45 C.F.R. §§ 1600-1644 (1998).
68. See, e.g., 45 C.F.R. § 1608 (1994) (proposing regulations relating to prohibited political activities); 45 C.F.R. § 1632 (1989) (proposing a prohibition on involvement in the redistricting process). LSC General Counsel Opinions are not catalogued nor published, but they are available from the Office of General Counsel at LSC. Opinions are issued to individuals or to the entities that represent them.
69. See, e.g., 45 C.F.R. § 1612 (1998) (limiting prohibitions to "self-interest lobbying" with LSC funds).
70. See 45 C.F.R. § 1610.3.
71. See Joint Resolution Making Further Continuing Appropriations and Providing for Productive Employment for the Fiscal Year 1983, and for other Purposes, Pub. L. No. 97-377, tit. VIII, 96 Stat. 1830, 1874-76 (1982).
72. See Dooley & Houseman, supra note 31, ch. 3, at 9.
73. See An Act Making Appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies for the Fiscal Year Ending September 30,1984, and for Other Purposes, Pub. L. No. 98-166, tit. II, 97 Stat. 1071, 1090 (1983); Tit. VIII, 96 Stat. at 1874. Public Law 97-377, for example, provided that none of the funds appropriated in this Act for the Legal Services Corporation shall be expended to provide legal assistance for or on behalf of any alien unless the alien is a resident of the United States and is - (1) an alien lawfully admitted for permanent residence as an immigrant as defined by sections 101(a)(15) and 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15), (20)); (2) an alien who is either married to a United States citizen or is a parent or an unmarried child under the age of twenty-one years of such a citizen and who has filed an application for adjustment of status to permanent resident under the Immigration and Nationality Act, and such application has not been rejected; (3) an alien who is lawfully present in the United States pursuant to an admission under section 207 of the Immigration and Nationality Act (8 U.S.C. 1157, relating to refugee admissions) or who has been granted asylum by the Attorney General under such Act; or (4) an alien who is lawfully present in the United States as a result of the Attorney General's withholding of deportation pursuant to section 243(h) of the Immigration and Nationality Act (8 U.S.C. 1253(h)). Tit. VIII, 96 Stat. at 1874. Public Law 97-377 further provided: [a]n alien who is lawfully present in the United States as a result of being granted conditional entry pursuant to section 203(a)(7) of the Immigration and Nationality Act (8 U.S.C. 1153(a)(7)) before April 1, 1980, because of persecution or fear of persecution on account of race, religion, or political opinion or because of being uprooted by catastrophic natural calamity shall be deemed, for purposes of section 1007(b)(11) of the Legal Services Corporation Act, to be an alien described in subparagraph (C) of such section. Id., 96 Stat. at 1874-75.
74. See 42 U.S.C. § 2996f(b)(8) (1994).
75. See An Act Making Appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies for the Fiscal Year Ending September 30, 1991, and for Other Purposes, Pub. L. No. 101-515, § 607, 104 Stat. 2149, 2149-50 (1990); Dooley & Houseman, supra note 31, ch. 4, at 4-9.
76. The procedural requirements were that: (A) the project director of a recipient has expressly approved in writing the undertaking of such communication to be made on behalf of a client or class of clients in accordance with policy established by the governing body of the recipient; and (B) the project director of a recipient has determined prior to the undertaking of such communication, that - (i) the client and each client is in need of relief which can be provided by the legislative body involved; (ii) appropriate judicial and administrative relief have been exhausted; and (iii) documentation has been secured from each eligible client that includes a statement of the specific legal interests of the client, except that such communication may not be the result of participation in a coordinated effort to provide such communications under this proviso; and (C) the project director of a recipient maintains documentation of the expenses and time spent under this proviso as part of the records of the recipient; or (D) the project director of a recipient has approved the submission of a communication to a legislator requesting introduction of a private relief bill. § 607, 104 Stat. at 2150.
77. Id., 104 Stat. at 2149.
78. See id., 104 Stat. at 2150.
79. See id., 104 Stat. at 2148-50.
80. Id., 104 Stat. at 2149.
81. See id.
82. See Tex. Gov't Code Ann. tit. 2, subch. A, art. XI, § 4(F) (West 1998).
83. IOLTA funds may not be used in matters that might reasonably be expected to result in a fee award from public funds or the opposing party unless the adequate legal services were not otherwise available to the person. See id.
84. See id. § 51.903(c)-(d).
85. See id. § 51.903(g).
86. See Wash. Rev. Code Ann. § 43.08.260 (West 1998).
87. For example, Washington's general revenue statute provides that access to information does not cover "confidential information protected by the United States Constitution, the state Constitution, the attorney-client privilege, and applicable rules of attorney conduct." Id. § 43.08.260(7)(a)(ii)(b)(i).
88. Wash. Rev. Code Ann. § 43.08.260 provides: Any money appropriated by the legislature from the public safety and education account pursuant to RCW 43.08.250 or from any other state fund or account for civil representation of indigent persons shall be used solely for the purpose of contracting with qualified legal aid programs for legal representation of indigent persons in matters relating to: (a) Domestic relations and family law matters, (b) public assistance and health care, (c) housing and utilities, (d) social security, (e) mortgage foreclosures, (f) home protection bankruptcies, (g) consumer fraud and unfair sales practices, (h) rights of residents of long-term care facilities, (i) wills, estates, and living wills, (j) elder abuse, and (k) guardianship.
89. Id. § 43.08.260. Section 2(4) of the Legal Aid Act of 1995 provides: (A) The term "qualified cause of action" means only a civil cause of action which results only from - (i) landlord and tenant disputes, including an eviction from housing except an eviction where the prima facie case for the eviction is based on criminal conduct; (ii) foreclosure of a debt on a qualified client's residence; (iii) the filing of a petition under chapter 7 or 12 of title 11, United States Code, or under chapter 13 of such title unless a petition of eviction has preceded the filing of such petition; (iv) enforcement of a debt; (v) an application for a statutory benefit; (vi) appeal of a denial of a statutory benefit on a statutory ground; (vii) child custody and support; (viii) action to quiet title; (ix) activities involving spousal or child abuse on behalf of the abused party; (x) an insurance claim; (xi) competency hearing; (xii) probate; (xiii) divorce or separation; (xiv) employment matters; or (xv) consumer fraud. Additional causes of action qualify as a qualified cause of action if they arise out of the same transaction as a cause of action described in this subparagraph unless such additional causes of action are described in clause (i) of subparagraph (B). (B) Such term does not include - (i) a class action under Federal, State, or local law; or (ii) any challenge to the constitutionality of any statute. The Legal Aid Act of 1995, H.R. 2277, 104th Cong. § 2(4) (1995).
90. See id. § 3(f).
91. This should be distinguished from withdrawing after a case has been undertaken because of a change in the law or a change in the circumstances of the client.
92. See Model Rules of Professional Conduct Rule 1.2(c) (1998).
93. Id. Rule 1.2 cmt. 4.
94. For the LSC regulation on fee-generating cases and the exceptions for representation that are permitted, see 45 C.F.R. § 1609 (1998).
95. For example, does refinancing a home or a family farm fall within the Washington State list of "home protection bankruptcies" or "mortgage foreclosures" or the Legal Aid Act's list of "foreclosure of a debt on a client's residence"?
96. See supra notes 13-14 and accompanying text.
97. See supra Part I.B.1.
98. See supra notes 70-79 and accompanying text.
99. See infra note 172 and accompanying text.
100. See supra note 9 and accompanying text.
101. See supra notes 9-19 and accompanying text.
102. See supra notes 9-19 and accompanying text.
103. See An Act Making Appropriations for the Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Programs for the Fiscal Year Ending September 30, 1995, and Making Supplemental Appropriations for These Departments and Agencies for the Fiscal Year Ending September 30, 1994, and for other Purposes, Pub. L. No. 103-317, § 403(b)(1), 108 Stat. 1724, 1759 (1995) (re-enacting the class action limitations in Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L. No. 101-515, § 607, 104 Stat. 2101, 2148-49 (1990)).
104. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1991, Pub. L. No. 101-515, § 607, 104 Stat. 2101, 2148-49 (1990).
105. Id., 104 Stat. at 2149-50.
106. Id., 104 Stat. at 2149-50.
107. See id., 104 Stat. at 2149.
108. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 504, 110 Stat. 1321, 1321-53 to -57 (1996).
109. See id. § 504(e), 110 Stat. at 1321-57.
110. See id., 110 Stat. at 1321-57.
111. See Houseman, Address, supra note 7, at 287. These include Ann Arbor, Boston, Charlottesville (Virginia), Chicago, Grand Rapids, Los Angeles, Miami, Minneapolis, New York, Philadelphia, Portland (Oregon), Saginaw, St. Louis, San Francisco, Toledo, and Washington, D.C.
112. For example, the National Legal Aid and Defender Association ("NLADA"), the trade association that represents civil and defender legal aid organizations in the United States, and the ABA Section on Litigation operate a national Litigation Assistance Partnership Project that matches law firms to legal services programs who need pro bono assistance and cannot find such in their local service area. See National Legal Aid & Defender Ass'n, NLADA Special Projects (last visited Jan. 13, 1999) 〈http://www.nlada.org/c-specpr.htm〉. In addition, the Law Firm Pro Bono Project of the Pro Bono Institute also assists legal services programs to find pro bono assistance.
113. See 45 C.F.R. § 1610 (1998).
114. See id. § 1610.8.
115. For example, the 1995 case closure data from LSC indicate that only 0.6% of cases involved prisoners and 1.17% involved immigration issues, two categories directly affected by the 1996 restrictions on representation of prisoners and certain aliens. See Legal Servs. Corp., The Legal Services Corporation Restricted Cases Tracking Log (1996) (on file with author). Of the 1,657,795 cases closed in 1995, less than 200 involved class actions according to the reports of recipients made to the author in an informal survey conducted in 1996. See id. In fact, as noted elsewhere, there were only 630 open class action cases in June 1996, and many of these were cases filed years before and open because of the active monitoring of decrees. See id.
116. See supra note 87.
117. See supra notes 13-19 and accompanying text.
118. See 45 C.F.R. § 1626.5. In addition, LSC-funded recipients may also represent lawful temporary resident aliens under the special agricultural worker program; aliens granted asylum; aliens granted refugee status; aliens granted conditional entrant status; aliens granted withholding of deportation; and H-2A nonimmigrant temporary agricultural workers (concerning the worker's employment contract). See id. § 1626.
119. See id. § 1639.
120. See supra note 10 and accompanying text.
121. The Professional Responsibility Counsel of the Washington State Bar Association issued an informal letter opinion advising Washington attorneys funded by LSC that they may condition representation of the client on waiver or relinquishment of State or Federal claims for attorney's fees if, and only if, in the reasonable opinion of the attorney, such a waiver or relinquishment will not effectively preclude the lawyer from providing competent representation, the attorney has consulted with the client about the limitations of representation and has obtained written consent to that representation. If the opinion of the attorney is to the contrary or consent is not obtained, [the Northwest Justice Project] must decline representation of the client. Response to Letter of Inquiry No. 1741 from Cathy J. Blinka, Professional Responsibility Counsel, Washington State Bar Ass'n, to Deborah Perluss, Esq., Northwest Justice Project 1 (Apr. 29, 1997) (on file with author).
122. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 504(a)(16), 110 Stat. 1321, 1321-55 to -56. This provision was included in the 1998 Appropriations Act by incorporation. See Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 1998, Pub. L. No. 105-119, § 502(a), 111 Stat. 2440, 2510 (1997).
123. § 504(a)(16), 110 Stat. 1321-55 to -56.
124. 45 C.F.R. § 1639.4.
125. Id. § 1639.2(b).
126. See 42 U.S.C. § 1382(c) (Supp. II 1996).
127. Id. § 1382(c)(a)(3)(c)(i).
128. See 20 C.F.R. § 416.924 (1998).
129. See Letter from Jonathan M. Stein, General Counsel, and Richard Weishaupt, Project Head, Health and Human Services Union, Community Legal Services, to John J. Callahan, Acting Commissioner, Social Security Administration (Apr. 2, 1997) (on file with author). Stein and Weishaupt are perhaps the most knowledgeable advocates on the children's disability program. They successfully argued Sullivan v. Zebley, 493 U.S. 521 (1990), which held that certain regulations of the Department of Health and Human Services exceeded Congress's delegated statutory authority, see id. at 541.
130. See 42 U.S.C. §§ 601-618 (Supp. II 1996).
131. See Legal Serv. Corp., 1998 Fact Book and Program Information 12 (1998).
132. 42 U.S.C. § 607(e)(2).
133. See Model Rules of Professional Conduct Rule 5.4(c) (1998).
134. Id.
135. Id. Rule 1.8(f)(1)-(2). In addition, client confidentiality must be preserved. See id. Rule 1.8(f)(3).
136. Model Code of Professional Responsibility DR 5-107(B) (1981).
137. Id. Canon 35.
138. Id. Canon 5.
139. Id.
140. See id.
141. Id. EC 5-24.
142. Id. EC 5-21 (citation omitted).
143. See Committees on Civil Rights and Prof'l Responsibility, supra note 3, at 54-55; Pearce et al., supra note 1, at 371-87 (panel discussion comments of Stephen Ellmann).
144. See Pearce et al., supra note 1, at 381 (panel discussion comments of Stephen Ellmann).
145. Model Rules of Professional Conduct Rule 1.2 cmt. 4 (1998).
146. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 334 (1974).
147. See id.
148. The general holding provides: We hold that the activities on behalf of the clients of the staff of lawyers of a legal services office may be limited or restricted only to the extent necessary to allocate fairly and reasonably the resources of the office and establish proper priorities in the interest of making maximum legal services available to the indigent, and then only to an extent and in a manner consistent with the requirements of the Code of Professional Responsibility. Id.
149. See id.
150. See id.
151. See id.
152. See Model Code of Professional Responsibility EC 5-1 (1981).
153. See, e.g., 141 Cong. Rec. S14,586-609 (daily ed. Sept. 29, 1995) (statement of Sen. Domenici) ("[Legal Services] ought to be for the individual poor people who have a need for a lawyer.")
154. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 343 (1977).
155. See id.
156. Id.
157. See Restatement (Third) of the Law Governing Lawyers § 215 (Proposed Final Draft No. 1, 1996).
158. Id. § 215(2). Stephen Ellmann pointed out in his analysis that the American Law Institute has just published a revised version of section 215 and its accompanying commentary. See Pearce et al., supra note 1, at 379-81 (panel discussion comments of Stephen Ellmann). The revised draft does not change the text of section 215 itself, but does extensively revise the accompanying commentary. For example, the commentary observes that law other than the law of lawyering may govern attorney-client relationships in this context, and thus may permit what the law of lawyering would forbid. See Restatement (Third) of the Law Governing Lawyers § 215 cmt. a (Proposed Final Draft No. 2, 1998). The final comment describes a range of "legal service and similarly funded representation[s]," and ends with the observation that: Regardless of the method of appointment, the form of compensation or the nature of the paying organizations (for example, whether governmental or private or whether non-profit or for-profit), the lawyer's representation of and relationship with the individual client must proceed as provided for in this Section [215]. Id. cmt. g.
159. Model Rules of Professional Conduct Rule 1.1 (1998).
160. See id.; Model Code of Professional Responsibility EC 6-1 (1981).
161. Model Rules of Professional Conduct Rule 1.2(c).
162. Id. Rule 1.2 cmt. 5.
163. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399 (1996).
164. Id.
165. Id.
166. See id.
167. 45 C.F.R. § 1639.1-.6 (1998).
168. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399.
169. Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (codified as amended in scattered sections of 7, 8, 21, 25, 42 U.S.C.)
170. See Alan W. Houseman, Legal Representation and Advocacy Under the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, 30 Clearinghouse Rev. 932, 933 n.5 (1997).
171. See Marie A. Failinger & Larry May, Litigating Against Poverty: Legal Services and Group Representation, 45 Ohio St. L.J. 1, 17-18 (1984).
172. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 334 (1974).
173. According to the information provided by the LSC recipients in response to an LSC request for information on pending class actions, at the time that LSC recipients were forced to withdraw from pending class actions, over 155 of the 286 recipients were not providing representation in a class action suit. See Legal Services Corp., Legal Services Corporation Restricted Cases Tracking Log passim (1996) (on file with author).
174. Note that the current prohibition does permit recipients to use non-LSC funds to respond to written requests of officials and to comment on proposed rules in public rulemaking proceedings. See 45 C.F.R. § 1612.6 (1997).
175. Canons of Professional Ethics Canon 26 (1970).
176. See Model Rules of Professional Conduct Rule 3.9 (1998).
177. See supra notes 90-93 and accompanying text.
178. ABA Comm. on Professional Responsibility and Ethics, Formal Op. 324 (1970).
179. ABA Comm. on Professional Responsibility and Ethics, Formal Op. 334 (1974).
180. See id.
181. See id.
182. See id.
183. See id.
184. See id.
185. See id.
186. See id.
187. See supra note 52 and accompanying text.
188. See 45 C.F.R § 1611.9 (1998).
189. See supra notes 115-16 and accompanying text.
190. See supra note 68 and accompanying text.
191. This conclusion is based on the author's experience providing representation to LSC recipients as General Counsel to the National Legal Aid and Defender Association and the Project Advisory Group from December 1981 until the present. Between 1976 and 1981, the author was a senior officer at LSC and was routinely briefed about recipient compliance issues.
192. See Houseman, Address, supra note 7, at 297.
193. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 508, 110 Stat. 1321, 1321-57.
194. See id. § 508(c), 110 Stat. at 1321-58 (requiring the LSC to report to Congress every 60 days on the status of such cases and matters).
195. See Houseman, Address, supra note 7, at 297.
196. See Letter from Alexander D. Forger, President of LSC, to the Honorable Judd Gregg, the Honorable Ernest F. Hollings, the Honorable Harold Rogers, and the Honorable Alan B. Mollohan 2 (Aug. 23, 1996) (on file with author). These were the chairs and ranking members of the relevant appropriation subcommittees of the House and Senate.
197. See Letter from Alexander D. Forger, President of LSC, to the Honorable Judd Gregg, the Honorable Ernest F. Hollings, the Honorable Harold Rogers, and the Honorable Alan B. Mollohan 1 (Dec. 21, 1996) (on file with author).
198. See Nina Bernstein, Suit Challenges Accord that Bars Legal Services Class-Action Cases for Poor, N.Y. Times, Aug. 1, 1996, at D22; Marcia Coyle, Limits at LSC Compel Lawyer to Quit a Case, Nat'l L.J., July 8, 1996, at A21; Jan Hoffman, Counseling the Poor, But Now One by One, N.Y. Times, Sept. 15, 1996, § 1, at 47; Claudia MacLachlan, LSC, Branch Spar over Class Action, Nat'l L.J., Aug. 19, 1996, at A10; Eva M. Rodriguez, Legal Aid Forced to Drop Cases, Legal Times, Aug. 12, 1996, at 1.
199. See Nina Bernstein, Suit Challenges Accord that Bars Legal Services Class-Action Cases for Poor, N.Y. Times, Aug. 1, 1996, at D22; Marcia Coyle, Limits at LSC Compel Lawyer to Quit a Case, Nat'l L.J., July 8, 1996, at A21; Jan Hoffman, Counseling the Poor, But Now One by One, N.Y. Times, Sept. 15, 1996, § 1, at 47; Claudia MacLachlan, LSC, Branch Spar over Class Action, Nat'l L.J., Aug. 19, 1996, at A10; Eva M. Rodriguez, Legal Aid Forced to Drop Cases, Legal Times, Aug. 12, 1996, at 1.
200. See Nina Bernstein, Suit Challenges Accord that Bars Legal Services Class-Action Cases for Poor, N.Y. Times, Aug. 1, 1996, at D22; Marcia Coyle, Limits at LSC Compel Lawyer to Quit a Case, Nat'l L.J., July 8, 1996, at A21; Jan Hoffman, Counseling the Poor, But Now One by One, N.Y. Times, Sept. 15, 1996, § 1, at 47; Claudia MacLachlan, LSC, Branch Spar over Class Action, Nat'l L.J., Aug. 19, 1996, at A10; Eva M. Rodriguez, Legal Aid Forced to Drop Cases, Legal Times, Aug. 12, 1996, at 1.
201. See Nina Bernstein, Suit Challenges Accord that Bars Legal Services Class-Action Cases for Poor, N.Y. Times, Aug. 1, 1996, at D22; Marcia Coyle, Limits at LSC Compel Lawyer to Quit a Case, Nat'l L.J., July 8, 1996, at A21; Jan Hoffman, Counseling the Poor, But Now One by One, N.Y. Times, Sept. 15, 1996, § 1, at 47; Claudia MacLachlan, LSC, Branch Spar over Class Action, Nat'l L.J., Aug. 19, 1996, at A10; Eva M. Rodriguez, Legal Aid Forced to Drop Cases, Legal Times, Aug. 12, 1996, at 1.
202. See Nina Bernstein, Suit Challenges Accord that Bars Legal Services Class-Action Cases for Poor, N.Y. Times, Aug. 1, 1996, at D22; Marcia Coyle, Limits at LSC Compel Lawyer to Quit a Case, Nat'l L.J., July 8, 1996, at A21; Jan Hoffman, Counseling the Poor, But Now One by One, N.Y. Times, Sept. 15, 1996, § 1, at 47; Claudia MacLachlan, LSC, Branch Spar over Class Action, Nat'l L.J., Aug. 19, 1996, at A10; Eva M. Rodriguez, Legal Aid Forced to Drop Cases, Legal Times, Aug. 12, 1996, at 1.
203. On December 24, 1996, a New York state trial judge issued an opinion which denied a motion to withdraw as counsel for a certified plaintiff class filed by Valerie Bogart, a staff attorney with Legal Services for the Elderly ("LSE"), a component of Legal Services of New York City. Ms. Bogart had been lead counsel to the plaintiff class in Varshavsky v. Perales, 608 N.Y.S.2d 184 (App. Div. 1994), a state court class action that successfully enjoined the New York State Department of Social Services' abolition of its In-Home Administrative Hearing Process, thereby reinstating the process of the provision of hearings to elderly homebound persons who were too disabled to travel to hearings at the welfare department. See id. at 185. Since the issuance of the preliminary injunction and its affirmance on appeal, Ms. Bogart and her co-counsel had been engaged in monitoring the Department's compliance with the order. Because LSC was not a party to this case, the opinion had no legal effect on the appropriation provisions or the LSC regulations discussed in the court's opinion. In addition, it should be noted that neither LSC nor the Justice Department filed briefs in the case nor did any party present legal arguments contrary to those submitted by Ms. Bogart's attorney. Finally, the court's analysis of the scope of the "safe harbor provisions" of the final class action regulation is, in material respects, incorrect. Under 45 C.F.R. § 1617.2(b)(2), recipients may represent individual clients to obtain the benefit of relief order by a court in a class action and can engage in some non-adversarial activities. See 45 C.F.R. § 1617.2(b)(2) (1998). Because the LSC concluded that Ms. Bogart's activities fell within the "safe harbor provision," the judge's opinion was advisory.
204. The LSC has interpreted the statutory provisions on drug-related evictions to apply only to a tenant when that tenant has (1) been convicted, or has been charged by a prosecuting authority, with the illegal sale or distribution of a controlled substance, and (2) the eviction proceeding is brought because the illegal drug activity of that tenant threatens the health or safety of another tenant residing in the public housing project or an employee of the agency. See 45 C.F.R. § 1633.3.
205. See id. § 1612.6.
206. The LSC has interpreted the prohibition on prisoner representation to address the most common problem of individuals who are arrested and imprisoned for a short period of time and then subsequently lose their status as prisoners. If "the period of incarceration is anticipated to be brief and the litigation is likely to continue beyond the period of incarceration[,]" then recipients do not have to take steps to withdraw. 45 C.F.R. § 1637.4. LSC provides as a guideline that brief incarceration is to be "incarceration which is expected to last less than 3 months." 62 Fed. Reg. 19,421, 19,422 (1997) (to be codified at 45 C.F.R. pt. 1637).
207. See supra notes 8-9 and accompanying text.
208. 45 C.F.R. § 1626.9 (setting forth the provision on the changing circumstances of aliens).
209. Model Rules of Professional Conduct Rule 1.16(a)(1) (1998).
210. Perhaps the consequences would only mean that the entity loses its federal funding. See supra Part II.B.
211. The "violation of other law" language has been applied in situations where the client suggests a course of action that is illegal, and the attorney must withdraw to avoid the illegality. There is little discussion of situations where a higher law directs the lawyer to withdraw, as in the case of the 1996 restrictions on LSC-funded recipients.
212. See, e.g., Response to Letter of Inquiry No. 98-25 from Michael D. McDowell, Committee on Legal Ethics and Professional Responsibility, Pennsylvania Bar Association, to Carolyn L. Carter, Esq. 3-4 (Mar. 19, 1998) (on file with author) [hereinafter Inquiry No. 98-25] (stating that in the Committee's opinion, complying with a federal requirement to release information about clients does not contravene Model Rule 1.6).
213. Model Rules of Professional Conduct Rule 1.16(b)(6).
214. Id. Rule 1.16(c).
215. LSC has not determined the scope of the statutory and regulatory requirement that aliens must "present in the United States" in order to be represented. 45 C.F.R. § 1626.5 (1998). LSC is likely to soon begin, however, a new rulemaking procedure soon to determine how that phrase should be interpreted. See 63 Fed. Reg. 60,026, 60,026-27 (Nov. 6, 1998).
216. Model Rules of Professional Conduct Rule 1.6.
217. See id. Rule 1.16(b).
218. See, e.g., ABA Comm. on Professional Ethics, Informal Op. 1081 (1969) (finding that attorneys should not divulge information that would identify the client); Arizona State Bar, Op. No. 81-4 (1981) (authorizing legal services to release information upon the request of the governing board, but barred release of client secrets without consent); Committee on Legal Ethics, D.C. Bar, Op. No. 124 (1983) (holding that an attorney must protect the identity of clients, unless ordered to disclose the identity by a court order); Kentucky Bar Ass'n, Op. E-253 (1981) (allowing disclosure of information only if the client has authorized the release, there is no expectation of confidentiality on the part of the client, or the information is in the public record because of the attorney's representation of the client); Mississippi State Bar, Op. No. 101 (1985) (stating that attorneys need not disclose client information as required by federally funded corporations).
219. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. No. 1081 (1969).
220. See id.
221. See id.
222. See ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1287 (1974).
223. See id.
224. Id.
225. ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1394 (1977).
226. See id.
227. ABA Comm. on Professional Ethics, Informal Op. 1081 (1969).
228. ABA Comm. on Ethics and Professional Responsibility, Informal Op. No. 1394 (1977).
229. Id.
230. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 334 (1974).
231. See id.
232. Id.
233. See ABA Comm. on Ethics and Professional Responsibility, Informal Op. 1443 (1979).
234. See id.
235. Compare Model Code of Professional Responsibility DR 4-101(A) (1981) (prohibiting communication of client secrets or confidences), with Model Rules of Professional Conduct Rule 1.6 (1998) (prohibiting communication of any information relating to representation).
236. Model Rules of Professional Conduct Rule 1.6.
237. Webster's New International Dictionary 1916 (3d ed. 1986).
238. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. No. 96-399 (1996).
239. See 2 Geoffrey C. Hazard, Jr. & W. William Hodes, The Law of Lawyering § AP4:103 (2d ed. 1998).
240. Model Rules of Professional Conduct Rule 1.6 cmt. 21.
241. Id.
242. Restatement (Third) of the Law Governing Lawyers § 115 (Proposed Final Draft No. 1, 1996).
243. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 504(a)(8), 110 Stat. 1321, 1321-53; 45 C.F.R. § 1636 (1998).
244. See 45 C.F.R. § 1644.1-.4 (1997).
245. See id. § 1644.4(a).
246. See id.
247. See id.
248. Id.
249. Id. § 1644.4(a)(1)(ii).
250. See Inquiry No. 98-25, supra note 206, at 3-4.
251. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 509(h), 110 Stat. 1321, 1321-60. The act provides: Notwithstanding section 1006(b)(3) of the Legal Services Corporation Act (42 U.S.C. 2996e(b)(3)), financial records, time records, retainer agreements, client trust fund and eligibility records, and client names, for each recipient shall be made available to any auditor or monitor of the recipient, including any Federal department or agency that is auditing or monitoring the activities of the Corporation or of the recipient, and any independent auditor or monitor receiving Federal funds to conduct such auditing or monitoring, including any auditor or monitor of the Corporation, except for reports or records subject to the attorney-client privilege. Id. § 509(h), 110 Stat. at 1321-60.
252. 42 U.S.C. § 2996e(b)(3) (1994).
253. See id. § 2996h(d) (providing that "neither the Corporation nor the Comptroller General shall have access to any reports or records subject to the attorney-client privilege").
254. See, e.g., Alabama Rules of Professional Conduct Rule 1.6 cmt. (1996) ("The confidentiality rule applies not merely to matters communicated in confidence by the client but also to all information relating to the representation, whatever its source.").
255. See Letter from Edouard Quatrevaux, Legal Services Corporation Inspector General, to the Honorable Harold Rogers, Chairman, and the Honorable Alan B. Mollohan, Ranking Minority Member, Subcommittee on Commerce, Justice, State, The Judiciary and Related Agencies, Committee on Appropriations, United States House of Representatives 2-3 (Nov. 20, 1995) (on file with author).
256. See Access to Audit Working Papers, 61 Fed. Reg. 54,821, § II-1.F (Oct. 22, 1996) (providing Audit Guides for LSC Recipients and Auditors).
257. See 2 Hazard & Hodes, supra note 233, § AP4:103; Inquiry No. 98-25, supra note 206, at 3-4.
258. See 2 Hazard & Hodes, supra note 233, § AP4:105.
259. 144 F.2d 778 (2d Cir. 1944).
260. See, e.g., Baird v. Koerner, 279 F.2d 623, 632 (9th Cir. 1960) ("If the identification of the client conveys information which ordinarily would be conceded to be part of the usual privileged communication between attorney and client, then the privilege should extend to such identification in the absence of other factors.").
261. See Pape, 144 F.2d. at 782.
262. See Behrens v. Hironimus, 170 F.2d 627, 628 (4th Cir. 1948).
263. See R. M. Weddle, Annotation, Disclosure of Name, Identity, Address, Occupation, or Business of Client as Violation of the Attorney-Client Privilege, 16 A.L.R.3d 1047, 1050-53 (1967).
264. Id.
265. Id.
266. Id.
267. 8 John Henry Wigmore, Evidence § 2313 (1961) (emphasis omitted).
268. Id.
269. See Weddle, supra note 257, at 1053-54; see also NLRB v. Harvey, 349 F.2d 900, 905 (4th Cir. 1965) (acknowledging that the identity of the client should not be disclosed where disclosure would result in the disclosure of confidential communication); Baird v. Koerner, 279 F.2d 623, 631-32 (9th Cir. 1960) (holding that an attorney cannot be forced to reveal the name of his client when the client employed the attorney to voluntarily mail tax payments to the government).
270. 435 N.Y.S.2d 882 (Sup. Ct. 1980).
271. See id. at 883.
272. See id. at 886.
273. See Audits of States, Local Governments, and Non-Profit Organizations, 62 Fed. Reg. 35,278 (1997).
274. Audit Guide for LSC Recipients and Auditors, 61 Fed. Reg. 54,816, 54,821 (1996).
275. Legal Services Corp., Appendix A: Compliance Supplement for Audits of LSC Recipients 10 (1997).
276. Audit Guide for LSC Recipients and Auditors, 61 Fed. Reg. 54,816, 54,817 (Oct. 22, 1996).
277. Letter from Sherman S. Welpron, Jr., Chairman, American Bar Association, to Dan J. Bradley, Legal Services Corporation (Dec. 10, 1979) (on file with author).
278. See Interview with Linda Perle, Senior Staff Attorney, Center for Law and Social Policy, in Washington, D.C. (Nov. 10, 1998). Ms. Perle tracks LSC recipients interaction with the Office of the Inspector General and provides representation to recipients who have disputes with LSC.
279. See id.
280. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 509, 110 Stat. 1321, 1321-58 to -59.
281. LSC has requested that Congress clarify this issue in the fiscal year 1999 appropriations legislation by providing for unrestricted access by IPAs to recipient case files. See Memorandum from Dom Gillivan to Jennifer Mitter (September 14, 1998) (on file with author). Congress did not act on this request in the fiscal year 1999 appropriation bill. See Omnibus Consolidated and Emergency Supplemental Appropriations Act, 1999, Pub. L. No. 105-277, tit. V, 112 Stat. 2681, 2681-107 (1998).
282. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399.
283. See supra notes 5-7 and accompanying text.
284. See supra notes 5-7 and accompanying text.
285. See infra note 280.
286. The author has tracked recipient and former recipient activities as part of his role in the Project for the Future of Equal Justice, a joint project of the Center for Law and Social Policy and the National Legal Aid and Defender
287. The interpretations of these restrictions are best left to LSC, which has the legal duty to provide guidance to recipients about what the restrictions require, determine which clients the recipient may not represent, and how recipients of LSC funds should respond to situations that involve ongoing representation of clients or continued participation in cases that are restricted. LSC has now finalized regulations interpreting the 1996 and 1997 appropriation restrictions.
288. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, 100 Stat. 1321; ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399.
289. See H.R. 2076, 104th Cong. (1995) (enacted).
290. See Omnibus Consolidated Rescissions and Appropriations Act of 1996, 110 Stat. 1321.
291. See An Act Making Omnibus Appropriations for the Fiscal Year Ending September 30, 1997, and for Other Purposes, Pub. L. No. 104-208, 110 Stat. 3009 (1996).
292. See Houseman, Address, supra note 7, at 290.
293. LSC has interpreted the statutory provisions on drug-related evictions to apply only to a tenant when that tenant has (1) been convicted, or has been charged by a prosecuting authority, with the illegal sale or distribution of a controlled substance and (2) the eviction proceeding is brought because the illegal drug activity of that tenant threatens the health or safety of another tenant residing in the public housing project or an employee of the agency. See 45 C.F.R. § 1633.3 (1998).
294. Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 504(a)(16), 110 Stat. 1321, 1355-56; see 45 C.F.R. § 1639.4.
295. For example, Formal Opinion 96-399 states that recipients cannot undertake "representation challenging the LSC, its conduct or oversight proceedings, or that of any LSC grantee." ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399 (1996). This statement is somewhat misleading. Section 506 of Pub. L. 104-134 prohibits recipients from using LSC funds (but not non-LSC funds) to sue LSC. See § 506, 110 Stat. at 1321-57. Section 504(a)(5) prohibits recipients from lobbying on oversight proceedings affecting LSC, but section 504(b) permits the use on non-LSC funds to contact, communicate with and respond to a request of a state or local legislative body about oversight proceedings affecting a recipient. See § 504, 110 Stat. at 1321-53 to -57. In another example, Formal Opinion 96-399 states that recipients cannot undertake "representation with regard to administrative policy at any level of government." ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399. Sections 504(a)(2) and (3), however, prohibit only rulemaking activity by recipients. Representation in agency hearings that adjudicate the rights of individual beneficiaries (e.g., welfare, Social Security, SSI hearings) is not prohibited and can result in challenges to agency policy on behalf of an individual client. See 45 C.F.R. § 1612.5(a).
296. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399 (1996).
297. Rule 1.4 of the Model Rules of Professional Conduct provides: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Model Rules of Professional Conduct Rule 1.4 (1998).
298. Throughout, Formal Opinion 96-399 makes practice suggestions which do not seem to be required by ethical rules, even though they may constitute thoughtful advice and good recipient practices. See ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399. For example, the opinion suggests which staff members should return phone calls and recommends implementation of screening procedures for new representation to ensure that violation of law will not occur. See id. Such practical advice is best left to the LSC recipient to determine.
299. Compare id. (describing the representation), with Telephone Interview with Robert Gross, Director, New Hampshire Legal Assistance (January 10, 1996) (revealing that New Hampshire Legal Assistance gave up its LSC funding).
300. ABA Comm. on Ethics and Professional Responsibility, Formal Op. No. 96-399.
301. See Pearce et al., supra note 1, at 391 (panel discussion comments of Stephen Gillers).
302. Courts are specifically prohibited from questioning whether representation by LSC recipients is authorized in a case or matter before the court, and places the responsibility on LSC for interpreting the LSC Act when adverse parties challenge the representation. See 42 U.S.C. § 2996e(b)(1)(B) (1994).
303. There have been two major court challenges to the LSC restrictions. To date, the results have been generally unsuccessful. See Velazquez v. Legal Servs. Corp., 985 F. Supp. 323, 344 (E.D.N.Y. 1997) (denying plaintiffs' preliminary injunction motion), aff'd in part, rev'd in part, 164 F.3d 757, 773 (2d Cir. 1999) (holding that § 504(a)(16) of the Omnibus Consolidated Rescissions and Appropriations Act of 1996 was unconstitutional, and affirming on all other points of law the district court's denial of the plaintiff's preliminary injunction motion); Legal Aid Soc'y v. Legal Servs. Corp., 981 F. Supp. 1288, 1301 (D. Haw. 1997) (rejecting a constitutional challenge to LSC funding restrictions), aff'd in part, vacated in part, 145 F.3d 1017, 1031 (9th Cir.) (affirming the district court's First Amendment holding, but reversing the district court's holding that the LSC restrictions did not violate the Due Process and Equal Protection Clause rights of indigents), cert. denied, 119 S. Ct. 539 (1998).
304. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399 (1996).
305. See supra note 205-09 and accompanying text.
306. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399.
307. See 45 C.F.R. § 1637.3-.4 (1998).
308. See 45 C.F.R. § 1611.9 (1998) (financial eligibility); id. § 1626.7 (changes in alien status).
309. See id. § 1637.4; id. § 1626.9.
310. ABA Comm. on Ethics and Professional Responsibility, Formal Op. 96-399.
311. Id.
312. Id.
313. Id.
314. See id.
315. Id.
316. Id.
317. See id.
318. See Standards for Providers of Civil Legal Services to the Poor Standard 6.1 (1986).