Restriction on Representation in Certain Eviction Proceedings

LEGAL SERVICES CORPORATION

45 CFR Part 1633

Restriction on Representation in Certain Eviction Proceedings

AGENCY: Legal Services Corporation.

ACTION: Proposed rule.

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SUMMARY: This proposed rule is intended to ensure that recipients

refrain from using Legal Services Corporation (``LSC'' or

``Corporation'') funds to provide representation in eviction

proceedings of persons engaged in certain illegal drug activity.

DATES: Comments must be submitted on or before October 23, 1995.

ADDRESSES: Comments should be submitted to the Office of the General

Counsel, Legal Services Corporation, 750 First Street, N.E., 11th

Floor, Washington, DC 20002-4250.

FOR FURTHER INFORMATION CONTACT: Victor M. Fortuno, General Counsel, at

(202) 336-8810.

SUPPLEMENTARY INFORMATION: On June 25, 1995, the Corporation Board of

Directors (``Board'') adopted a resolution requiring Corporation staff

to prepare a regulation prohibiting the use of Corporation funds to

represent in certain eviction proceedings persons alleged to be

engaging in illegal drug activity. On September 9, 1995, the Board's

Operations and Regulations Committee (``Committee'') held public

hearings on proposed 45 CFR Part 1633. After adopting several changes

to the staff draft of the regulation, the Committee voted to publish

the proposed rule in the Federal Register for notice and comment.

The LSC Act grants the Corporation both general and specific

rulemaking authority. Texas Rural Legal Aid v. LSC, 940 F.2d 685, 690-

91 (D.C. Cir. 1991); see e.g., 42 U.S.C. 2996e(a)(1)(A), (a)(1)(B), and

2996f(a)(3). In particular, section 1007(a)(3) of the LSC Act ``gives

[the Corporation] substantial power to regulate the `delivery of legal

assistance' by program recipients.'' TRLA, at 691. In addition, as a

private corporation granted the powers of a District of Columbia

nonprofit corporation, 42 U.S.C

0 F.2d 685, 690-

91 (D.C. Cir. 1991); see e.g., 42 U.S.C. 2996e(a)(1)(A), (a)(1)(B), and

2996f(a)(3). In particular, section 1007(a)(3) of the LSC Act ``gives

[the Corporation] substantial power to regulate the `delivery of legal

assistance' by program recipients.'' TRLA, at 691. In addition, as a

private corporation granted the powers of a District of Columbia

nonprofit corporation, 42 U.S.C. 2996e(a), the Corporation has the

power to establish the terms under which it will make grants to

entities to provide legal assistance. Id. Congress intended the

exercise of ``considerable discretion'' by the Corporation in its

implementation of the LSC Act. Id. Finally, under section 1007(a)(2)(C)

of the LSC Act, 42 U.S.C. 2996f(a)(2)(C), the Corporation may provide

guidance to its recipients as to appropriate caseload matters by

establishing national goals, in conformance with which recipients are

to establish priorities for the acceptance of cases. Id. at 693.

A purpose of the legal services program is to assist in improving

opportunities for low income persons. 42 U.S.C. 2996(3). In addition,

in its grantmaking and oversight functions, the Corporation must ensure

that recipients provide legal assistance in the most economical and

effective manner. 42 U.S.C. 2996f(a)(3). Hence, a principal national

goal of the Corporation, based in the LSC Act, is to provide economical

and effective legal assistance in a manner that improves opportunities

for low income persons.

The drug problem has had a devastating effect on the poor in our

country, especially those living in public housing. This situation is

of grave concern to the Board, and has been an on-going concern in

Congress. For example, section 508(18) of H.R. 2076, an appropriations

measure currently before Congress, would prohibit recipients from

providing representation in certain drug-related eviction proceedings.

See H.R. 2076, 104th Cong., 1st Sess, section 504(18)

effective legal assistance in a manner that improves opportunities for

low income persons and to provide specific guidance in the case of

drug-related eviction proceedings by prohibiting any recipient from

providing representation in certain proceedings to evict from public

housing projects persons convicted of or being prosecuted for certain

drug-related activity.

Section 1633.2 Definitions

This section defines ``controlled substance,'' ``public housing

project,'' and ``public housing agency'' in the manner those terms are

defined by federal statute. The term ``being prosecuted'' is defined to

make clear that the prohibition attaches only when a prosecution has

been instituted and is being pursued by a governmental authority, for

example, by indictment or information. It is not sufficient for an

affidavit to have been sworn by a private citizen or for an arrest to

have occurred if no prosecution has followed.

Section 1633.3 Prohibition

This section sets out the prohibition on the use of Corporation

funds. It is intended to preclude the provision of representation in a

proceeding to evict from a public housing project a person who has been

recently convicted of or is being prosecuted for illegal drug activity.

Such activity must be evidenced by a conviction or current prosecution

for the sale, distribution, use or manufacture of a controlled

substance. Under the prohibition if representation was commenced prior

to prosecution, the recipient should seek to end the representation if

a prosecution is thereafter commenced. The Corporation has concluded

that a formal charge of illegal drug activity against a client will

suffice to prohibit representation even though a conviction has not as

yet resulted. The Corporation, however, believes that the prohibition

should apply only when the charge of illegal drug activity has resulted

in formal prosecution proceedings.

In addition, the prohibition applies only if the allegation which

forms the

that a formal charge of illegal drug activity against a client will

suffice to prohibit representation even though a conviction has not as

yet resulted. The Corporation, however, believes that the prohibition

should apply only when the charge of illegal drug activity has resulted

in formal prosecution proceedings.

In addition, the prohibition applies only if the allegation which

forms the

basis for the eviction proceeding is that the particular illegal drug

activity for which the person has been convicted or is being prosecuted

did or does now threaten the health or safety of others living in the

public housing project or working in the public housing agency. This

qualification is intended to make clear that, in order for the

prohibition to apply, the allegation which forms the basis for the

eviction must be that, at the time the illegal drug activity was

engaged in, it threatened the health or safety of others within the

public housing community or that the activity currently threatens such

health or safety. In other words, the threat must stem from the illegal

drug activity which resulted in prosecution/conviction.

Finally, the prohibition extends only to the individual who has

been convicted or is being prosecuted, and does not extend to other

members of the individual's household who may be facing eviction

because of the individual's illegal activity. For example, if a person

is facing eviction based on the fact that another person in the

household has been convicted of or is being prosecuted for the illegal

sale, distribution, use or manufacture of a controlled substance, then

the prohibition would not attach.

Section 1633.4 Recordkeeping

This section requires recipients to maintain documentation

regarding representation declined under this part. Such recordkeeping

will assist the Corporation in its compliance monitoring efforts and

will provide empirical data for informational purposes.

List of Subjects in 45 CFR 1633

Legal services, Drugs, Public housing.

en

the prohibition would not attach.

Section 1633.4 Recordkeeping

This section requires recipients to maintain documentation

regarding representation declined under this part. Such recordkeeping

will assist the Corporation in its compliance monitoring efforts and

will provide empirical data for informational purposes.

List of Subjects in 45 CFR 1633

Legal services, Drugs, Public housing.

For reasons set forth in the preamble, LSC proposes to amend 45 CFR

chapter XVI by adding part 1633 as follows:

PART 1633--RESTRICTION ON REPRESENTATION IN CERTAIN EVICTION

PROCEEDINGS

Sec.

1633.1 Purpose.

1633.2 Definitions.

1633.3 Prohibition.

1633.4 Recordkeeping.

Authority: 42 U.S.C. 2996e(a), (b)(1)(A), 2996f(a)(2)(C),

2996f(a)(3), 2996g(e).

Sec. 1633.1 Purpose.

This part is designed to ensure that Corporation funds will not be

used to provide representation in certain eviction proceedings to

persons charged with or convicted of illegal drug activities.

Sec. 1633.2 Definitions.

(a) ``Controlled substance'' has the meaning given that term in

section 102 of the Controlled Substances Act (21 U.S.C. 802);

(b) ``Public housing project'' and ``public housing agency'' have

the meanings given those terms in section 3 of the United States

Housing Act of 1937 (42 U.S.C. 1437a); and

(c) A person is ``being prosecuted'' if a criminal proceeding has

been instituted against such person by a governmental authority with

jurisdiction to bring such prosecution.

Sec. 1633.3 Prohibition.

Corporation funds shall not be used to defend any person in a

proceeding to evict that person from a public housing project if:

(a) the person has been recently convicted of or is being

prosecuted for the illegal sale, distribution, use or manufacture of a

controlled substance; and

such person by a governmental authority with

jurisdiction to bring such prosecution.

Sec. 1633.3 Prohibition.

Corporation funds shall not be used to defend any person in a

proceeding to evict that person from a public housing project if:

(a) the person has been recently convicted of or is being

prosecuted for the illegal sale, distribution, use or manufacture of a

controlled substance; and

(b) the eviction proceeding is brought by a public housing

authority on the basis that such illegal drug activity for which the

person has been convicted or for which the person is being prosecuted

did or does now threaten the health or safety of other tenants residing

in the public housing project or employees of the public housing

agency.

Sec. 1633.4 Recordkeeping.

Recipients shall maintain a record of all instances in which

representation is declined under this part. Records required by this

section shall be available to the Corporation, and should be maintained

in a manner consistent with the attorney-client privilege and the rules

of professional responsibility applicable in the local jurisdiction.

Dated: September 18, 1995.

Suzanne B. Glasow,

Senior Counsel for Operations & Regulations.

[FR Doc. 95-23490 Filed 9-20-95; 8:45 am]

BILLING CODE 7050-01-P