Advisory Opinion 2022-004
Application of the Part 1614 “Private Attorney” Definition to a California Legal Services Support Center and Statewide Advocacy Program
August 5, 2022
Does the Western Center on Law and Poverty (Western Center), which is a California legal services support center and statewide advocacy program, qualify as a § 1614.3(i) “private attorney” under the LSC Private Attorney Involvement (PAI) regulation at 45 C.F.R. Part 1614?
No. The Western Center does not qualify as a “private attorney” under 45 C.F.R. Part 1614 because it is a non-profit organization with a primary purpose of delivery of free civil legal services for the low-income community. The regulation’s definition of “private attorney” states that it “does not include . . . An attorney acting within the terms of his or her employment by a non-profit organization whose primary purpose is the delivery of free civil legal services to low-income individuals . . . .” 45 C.F.R. § 1614.3(i) (emphasis added).
The Western Center is a California non-profit organization. The Western Center’s annual report states that it has “advocated on behalf of Californians experiencing poverty in every branch of government—from the courts to the legislature.” The annual report further states that it has engaged in five types of activities, all for the purpose of assisting people experiencing poverty: (1) administrative advocacy, (2) state budget advocacy, (3) lawsuits, (4) policy advocacy advancing legislation, and (5) technical assistance for legal services and community-based advocates. All these activities involve the delivery of free legal services to low-income people as those terms are used in both 45 C.F.R. Part 1614 and the LSC Act, 42 U.S.C. §§ 2996–2996l. Thus, the § 1614.3(i) exclusion applies and the Western Center is not a “private attorney” under 45 C.F.R. Part 1614.
Background and Applicable Law
An LSC grantee’s PAI practices have raised the question whether the Western Center can qualify as a “private attorney” under 45 C.F.R. Part 1614.
Part 1614 Definition of Private Attorney
LSC adopted 45 C.F.R. Part 1614 “to ensure that recipients of LSC funds involve private attorneys . . . in the delivery of legal information and legal assistance to eligible clients.” 45 C.F.R. § 1614.1. Purpose. The regulation requires that every year LSC grantees spend an amount equal to 12.5% of their annualized basic field grant award on qualified activities towards that goal. 45 C.F.R. § 1614.2(a).
Part 1614 states that “private attorney means an attorney” subject to four exclusions. 45 C.F.R. § 1614.3(i). Two exclusions involve attorneys already employed by an LSC grant recipient. 45 C.F.R. § 1614.3(i)(1) & (2). The other two exclusions apply to “an attorney acting within the terms of his or her employment by a non-profit organization whose primary purpose is the delivery of free civil legal services to low-income individuals” or employed by a non-profit organization’s component with such a purpose. 45 C.F.R. § 1614.3(i)(3) & (4) (emphasis added). LSC explained these exclusions as necessary to accomplish the purpose of the rule:
LSC believes that the focus should be on engaging attorneys who are not employed to provide free legal services to low-income individuals . . . .
Part 1614—Preamble to Final Rule, 79 Fed. Reg. 61,770 at 61,774 (Oct. 15, 2014) (emphasis added); see also Part 1614—Preamble to Proposed Rule, 79 Fed. Reg. 21,188 at 21,191 (April 15, 2014) (“the purpose of the PAI rule is to engage attorneys who are not currently involved in the delivery of legal services to low-income individuals as part of their regular employment.”).
As explained in the preamble to Part 1614, many non-profit organizations still qualify as “private attorneys.” For example, while a grantee “may no longer be able to count co‑counseling with a legal aid organization toward its PAI requirement,” it could do so for co‑counseling with a state Protection and Advocacy organization that has a primary purpose to “engage in systemic advocacy efforts and to provide individual assistance to individuals with the full range of emotional, developmental, and physical disabilities” and does not limit itself to providing free legal services for low-income individuals. Part 1614—Preamble to Final Rule, 79 Fed. Reg. 61,770 at 61,773–74 (Oct. 15, 2014).
Western Center on Law and Poverty
The Western Center describes itself in its 2021 Annual Report as “advocat[ing] on behalf of Californians experiencing poverty in every branch of government—from the courts to the legislature.” It describes its activities in five categories:
- “Administrative advocacy” regarding government policies and procedures “to protect and uplift Californians living in poverty.”
- “Budget advocacy” that “pushes the state to use its budget to bring California closer to true economic and racial equity.”
- “Lawsuits . . . to ensure the laws to protect and support Californians with low incomes . . .are upheld [and enforced] . . . .”
- “Policy advocacy . . . advancing legislation that gets to the heart of the issues causing California’s massive income inequality, unsustainable housing market, lack of access to health care, and destructive systems of justice.”
- “Technical assistance” for “hundreds of legal services and community-based advocates throughout the state and nation . . . [who] are often the only line of defense for people with low incomes when they are forced to navigate complex legal issues.”
Western Center on Law and Poverty 2021 Annual Report, https://wclp.org/annual-reports/ (June 28, 2022). The Western Center’s website sets out the same activities in the section labelled “What We Do.” https://wclp.org/ (June 28, 2022)
The LSC grantee’s executive director stated that he believes that the Western Center qualifies as a Part 1614 private attorney and the legal aid exclusion does not apply. Based on his conversations and correspondence with the Western Center’s litigation director, he concluded that the Western Center’s primary mission is not the delivery of free civil legal services to low-income individuals. In support of that position, the executive director provided emails from the Western Center’s litigation director with the following information.
[I]t would not be accurate to say that Western Center's primary mission is to provide free legal services directly to low income individuals. . . .
[The] Western Center functions primarily as a support center and as an anti-poverty advocacy organization. . . .
[[T]he Legal Services Corporation funded Western Center as California's state support center until 1995, when Congress eliminated funding for all state and national support centers. Even without federal funding, we have continued in that role for LSC-funded and many other legal services programs throughout the state. In that role, we respond to literally thousands of phone, email, and listserve requests from legal services advocates for advice each year; conduct scores of trainings; coordinate task forces in substantive law areas; and publish manuals and other materials to assist legal aid attorneys who provide direct representation. . . .
In our advocacy role, we partner with legal services programs (when they are permitted to do so) in administrative and legislative advocacy and litigation. When Western Center co-counsels on a case with a legal services program, we rarely have direct client contact and serve mostly as support for the program's attorneys, who are usually the lead counsel.
Western Center’s Previous Funding from LSC to Provide Legal Services
Prior to 1996, LSC funded the Western Center as a support center and statewide advocacy organization. Congress established LSC “for the purpose of providing financial support for legal assistance in noncriminal proceedings or matters to persons financially unable to afford legal assistance.” <a data-cke-saved-href=" uscode.house.gov="">LSC Act § 1003(a), 42 U.S.C. § 2996b(a). Congress defined “legal assistance” as “the provision of any legal services consistent with the purposes and provisions of [the codified LSC Act].” LSC Act § 1002(5), 42 U.S.C. § 2996a(5) (emphasis added). Thus, for purposes of the LSC Act and LSC’s regulations, LSC’s mission can also be stated as “providing financial support for legal [services] in noncriminal proceedings or matters to persons financially unable to afford legal [services].”
Pursuant to this statutory mission, LSC took over the grants managed by the Office for Economic Opportunity (OEO) so that, “[t]he delivery and support structure put in place by OEO was carried over fundamentally unchanged by LSC when it began to function in 1975[,]” including “continuing support for the national back-up centers [and] maintaining a strong national training and communications capacity . . . .” Alan Houseman and Linda Perle, Securing Equal Justice for All: A Brief History of Civil Legal Assistance in the United States at 25 (May 2018) (Securing Equal Justice for All). LSC took over funding a system for delivery of legal services to low-income people that included both direct legal services providers (“basic field” grants) and a “legal services infrastructure.”
In addition to local service providers, OEO [had] also developed a unique legal services infrastructure. OEO funded a system of national and state support centers, training programs, and a national clearinghouse for research and information. This system would provide the legal services community with leadership and support on substantive poverty law issues and undertake litigation and representation before state and federal legislative and administrative bodies on issues of national and statewide importance.
Id. at 13 (emphasis added). Furthermore, legal services in the U.S. has “a long history of effective representation of low-income persons and has achieved many significant results for the low-income community from the courts, administrative agencies, and legislative bodies.” Id. at 7.
The Western Center meets the definition of “a non-profit organization whose primary purpose is the delivery of free civil legal services to low-income individuals” in 45 C.F.R. § 1614.3(i). The Western Center is a non-profit organization integral to the “legal services infrastructure” that works exclusively on advocacy for low-income people. Nonetheless, an LSC grantee disputes that the Western Center’s primary purpose is “delivery of free civil legal services” on the theory that the Western Center’s primary functions are as a support center for legal aid programs and a provider of administrative and legislative advocacy, which the grantee argues are not “delivery of free civil legal services.” Even with regards to representing low-income clients in litigation, the grantee claims that the Western Center’s work is not “delivery of free civil legal services” because it “rarely [has] direct client contact and serve[s] mostly as support for the [LSC grantee] program’s attorneys, who are usually the lead counsel.”
The grantee has incorrectly read “delivery of free civil legal services” to apply only to the provision of free legal services “directly to low-income individuals” and then only as lead counsel in litigation. Rather, consistent with both the LSC Act and Part 1614, “delivery of free civil legal services” includes all the Western Center’s activities as a legal aid support center and statewide advocacy organization for low-income people. The Western Center exemplifies the “national and state support centers [and] training programs” described in Securing Equal Justice for All as integral to the “unique legal services infrastructure” funded first by the OEO and then by LSC pursuant to the mandate in the LSC Act for “providing financial support for legal assistance [a/k/a legal services] in noncriminal proceedings or matters . . . .” Additionally, LSC has no requirement that only lead counsel can qualify as providing “free civil legal services” for a low-income client.
Furthermore, the meaning of “delivery of free civil legal services” in Part 1614 comes from the entire regulation and includes much more than representation of individual clients in cases. Part 1614 seeks to “involve private attorneys . . . in the delivery of legal information and legal assistance to eligible clients.” 45 C.F.R. § 1614.3—Definitions. To that end, Part 1614 provides for two categories of activities by private attorneys that qualify as “delivery of free legal services”: “(a) Direct delivery of legal assistance to recipient clients.” and “(b) Support and other activities.” 45 C.F.R. 1614.4(b). For example, PAI activities could include a private, for‑profit attorney co-counseling with a grantee (direct delivery) or providing a foreclosure training for the grantee’s attorneys (support and other activities).
The Western Center is a non-profit organization with a primary purpose of delivering free legal services to low-income people. Thus, the Western Center meets an exclusion in § 1614.3 and does not qualify as a “private attorney” in Part 1614. An LSC grantee cannot treat the Western Center as a “private attorney” when calculating whether it has expended sufficient funds to meet the Part 1614 private attorney involvement requirement.
Nothing in Part 1614 or this opinion discourages any grantee from making use of the Western Center’s services or collaborating with them. As stated in the preamble to the current Part 1614:
LSC wants to be clear that its decision to exclude legal aid attorneys from the definition of private attorney does not mean that recipients should not collaborate with these providers in the delivery of legal information and legal assistance to eligible clients. LSC supports and encourages recipients to work creatively and to build relationships necessary to increase their effectiveness at achieving positive outcomes for their clients. The exclusion simply means that recipients may not allocate costs associated with those collaborations to the PAI requirement.
Part 1614—Preamble to Final Rule, 79 Fed. Reg. 61,770 at 61, 774 (Oct. 15, 2014).
WILL A. GUNN
Vice President for Legal Affairs and General Counsel
Senior Associate General Counsel