Legal Services Corporation
Operations And Regulations Committee Meeting
Saturday, November 22, 2003
City Bar Center for CLE
The Association of the Bar of the City of New York
42 West 44th Street
New York, New York 10036-6604
COMMITTEE MEMBERS PRESENT:
Thomas R. Meites, Chair
Lillian R. BeVier
Frank B. Strickland, ex-officio
BOARD MEMBERS PRESENT:
Robert J. Dieter
Thomas A. Fuentes
Herbert S. Garten
Maria Luisa Mercado
STAFF AND PUBLIC PRESENT:
Victor M. Fortuno, Vice President for Legal Affairs,
General Counsel & Corporate Secretary
Randi Youells, Vice President for Programs
John Eidleman, Acting Vice President for Compliance
Leonard Koczur, Acting Inspector General, Office of
the Inspector General
Laurie Tarantowicz, Assistant Inspector General and
David Maddox, Assistant Inspector General for
David Richardson, Treasurer & Comptroller
Mattie C. Condray, Senior Assistant General Counsel
Dawn Browning, Assistant General Counsel
Michael Genz, Director, Office of Program Performance (OPP)
Alice Dickerson, Director, Office of Human Resources
Lisa Rosenberg, Congressional Liaison
Elizabeth Cushing, Board Liaison
Perry Wasserman, Special Assistant to the VP for Gov't
Relations & Public Affairs
Patricia Batie, FOIA Officer
Julie Clark, Vice President for Government Relations,
National Legal Aid and Defenders Association ("NLADA")
Don Saunders, Director for Civil Legal Services, NLADA
Linda Perle, Senior Attorney-Legal Services, Center for
Law and Social Policy ("CLASP")
Bill O. Whitehurst, Chairman, ABA's Standing Committee
for Legal Aid & Indigent Defendants ("SCLAID")
Lillian Moy, Executive Director, Legal Aid Society of
Northeastern New York
Catherine Samuels, Director of the Law & Society
Program of the Open Society Institute
Jane Stern, Program Director, New York Community Trust
Stephen Brooks, General Counsel, Interest on Lawyer
Elizabeth Shearer, Sr. Legal Aid Consultant, Legal Aid
of Queensland, Australia
Bernice Phillips, Buffalo Prenatal Network (Nominee)
James Daley, Oversight Counsel for the Committee on
the Judiciary, U.S. House of Representatives
Andrew Scherer, Executive Director, Legal Services for
New York ("LSNY")
Alexander Burstein, Executive Director, Legal Aid
Society of Rockland County
|C O N T E N T S|
|Approval of agenda||4|
|Approval of the Committee's meeting minutes of September 14, 2003||
Consider and act on recommendation to make to the
Board of Directors regarding adoption of proposed
revisions to 45 CFR Part 1604, LSC's regulation on
Outside Practice of Law
|Consider and act on whether to undertake any further rulemaking activities prior to appointment of a new President for LSC||
|Consider and act on other business||10|
|Consider and act on adjournment of meeting||10|
|MOTIONS:||Pages 4, 4, 8, 10|
P R O C E E D I N G S
MR. MEITES: I am Tom Meites. I'm the Chair of the Operations and Regulations Committee and I call our committee into session.
The other member of the committee who is here is Lillian BeVier, to my right.
The first item is, I'll ask for a motion for approval of our agenda.
M O T I O N
MS. BeVIER: So moved.
MR. MEITES: Seconded and passed.
Second, I'll ask for approval of the minutes of our Committee meeting which was held on September 14, 2003.
M O T I O N
MS. BeVIER: So moved.
MR. MEITES: I second it, and it passes.
On the first substantive item on the agenda, further consideration of the adoption of the proposed revisions to 45 CFR Part 1604, which is the Corporation's regulation dealing with the outside practice of law.
Our committee considered these proposed revisions at our September meeting.
Mattie, why don't you recall for us the status of our deliberations and where we are now?
MS. CONDRAY: Okay. For the record, my name is Mattie Condray. I'm senior assistant general counsel with Legal Services Corporation.
Procedurally, where you are is there was a Notice of Proposed Rulemaking with changes to the Corporation's rules on outside practice of law published. Comments were received. A draft final rule had been presented to the Committee back in January of 2003.
No action was taken at that time, because of concerns expressed by Chairman Sensenbrenner of the House Judiciary Committee, among other things concerned with acting on rulemakings before the new Board was in. The new Board is in.
The draft final rule was provided to you prior to the last meeting, but everybody wanted to kind of take a closer look at it before acting.
It's again up for action for the committee to recommend, if the committee so wishes, adoption by the Board and publication of the final rule.
I know we're kind of running late, so I will provide as much or as little of a briefing on what is the substance of what is in there as the committee wishes.
MR. MEITES: Both Lilly and I are familiar with the rule, because it was considered at the last meeting.
I believe we were advised at the last meeting that the Congressman and his office had further discussions with the office and whatever objections or questions about this particular rule had been resolved; is that correct?
MS. CONDRAY: Right. There are no outstanding issues.
The issue that Chairman Sensenbrenner had noted in his letter, the substantive issue, was -- I'll back up very briefly for the purpose of explaining this.
The Corporation had issued a notice of proposed rulemaking originally in 1995, proposing a substantial number of changes to the outside practice of law rule.
One of the changes that was proposed at that time would have permitted full-time attorneys for programs who were doing permitted outside practice of law cases, who received compensation, to be able to turn that compensation over to the program, remit it back to the program.
In 1995, that was legal. That would no longer be permissible under the attorneys' fees prohibitions that were enacted with the 1996 appropriations law.
The committee, when we republished this as an NPRM, notice of proposed rulemaking, the committee had directed us to simply republish the existing NPRM, which we did.
We noted in the preamble to that publication that we had concerns about the legality of this proposal, but in the interest of moving it forward, we were at least just putting the proposal out there, but putting the public on notice that the Corporation didn't feel it could adopt it.
The draft final rule that is in front of you no longer contains that provision, so there is nothing in the draft final rule which is inconsistent with the Corporation's requirements under the Appropriations Act or 1642, the attorneys' fees regulation.
MR. MEITES: Lilly, I've read the rule in its present form, and I am prepared to recommend its adoption by the Board. Your views are?
MS. BeVIER: I agree.
M O T I O N
MR. MEITES: I therefore will move that our committee's recommendation be that it be adopted by the Board.
MS. BeVIER: Second.
MR. MEITES: So that will be our recommendation to the Board.
MS. CONDRAY: Thank you. And I will note that I found a couple of typos that will get, obviously, if the Board so recommends that it be published, will be fixed before it's published.
MR. MEITES: The next item is to consider and act on whether to undertake any further rulemaking activities prior to appointment of a new president for the Legal Services Corporation.
At our last meeting, our committee focused on several aspects of the two ripest rulemakings under consideration, and the areas that we had asked the staff to report to us on were retainer agreements and group representation. They're two different rules.
Since then, our committee has learned, indeed, as the public has been informed, the Corporation is entering what hopefully are the final stages of its selection of a new president.
In light of that, the staff has informed me that its recommendation is that we defer any further rulemaking activity until there is a new president and the president has a chance to settle in, to discuss pending rulemaking with the staff, so that the president and the staff can work out whatever the position of the staff is.
Is that a fair statement of the staff's position?
MS. CONDRAY: Yes, that's correct.
MR. MEITES: I am inclined to accept that recommendation.
MS. BeVIER: I definitely think that's the appropriate course.
MR. MEITES: In light of that, our committee will defer any further action at this meeting. Indeed, we will not schedule any action for the next meeting, unless the new president is on board and up to speed and the staff so advises us.
So our intention then is, in fact to wait a reasonable time until the president is up to speed and the staff and the president advises us that it believes it's in position to make recommendations.
That completes our formal agenda. I'll open the floor to any public comments.
MR. MEITES: Hearing none, is there any other business before us?
M O T I O N
MR. MEITES: Hearing none, I will move that we adjourn.
MS. BeVIER: Second.
MR. MEITES: And so our meeting is adjourned. Thank you very much.
(Whereupon, at 10:38 a.m., the meeting was adjourned.)
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