The ABA has developed a Free Legal Answers system that can provide a mechanism for free volunteer lawyers to provide online legal advice. The ABA makes this system available for local entities to operate in each state or region (the ABA does not administer it).
Under what circumstances does an LSC grantee’s involvement with a local Free Legal Answers system require that clients receiving such advice be screened for LSC eligibility under LSC’s regulations?[fn]LSC grantees must screen clients for financial eligibility and U.S. citizenship or other non-citizen eligibility. 45 C.F.R. Parts 1611 and 1626. Other requirements apply to LSC grantees, but are not relevant to this opinion.[/fn]
Whether those clients must be screened for LSC eligibility depends on the nature and extent of a grantee’s involvement with the local Free Legal Answers system.
LSC grantees must conduct LSC screening of clients before providing them with legal “advice”—that is, services involving the application of law to facts in a way that requires legal analysis by a licensed lawyer or similarly authorized person. Screening is not required where LSC grantees provide clients solely with legal information—that is, services that do not include legal analysis and that do not create an attorney-client relationship.
Those screening requirements also apply to clients provided legal advice by volunteer attorneys working through a pro bono program operated entirely by an LSC grantee. In contrast, they do not apply to individuals who are provided legal advice by attorneys who are not working for a grantee or as part of a grantee’s pro bono program. Screening is not required when a grantee solely provides an individual with contact information for a private attorney who might assist her, but who does so independently from the grantee and its pro bono programs.
Nor do those screening requirements apply to a pro bono program in which an LSC grantee provides support solely for legal information services, and provides no support for any legal advice services.
The ABA makes the Free Legal Answers system available for any state or jurisdiction in which a site administrator agrees to take responsibility for operating the system, including promotion and recruitment of attorneys. If an LSC grantee serves as a site administrator, then the system must conduct LSC screening for clients receiving legal advice. By contrast, depending on the details of the arrangements, a Free Legal Answers system administered by another entity could receive some support from an LSC grantee without requiring screening of all legal advice clients. We would have to consider the nature and extent of the grantee’s involvement to determine whether the LSC screening requirements would apply in those situations.
LSC Screening and Volunteer Attorney Activities
|Legal Information Provided||Legal Advice Provided|
|No Grantee Involvement||No Screening||No Screening|
|Grantee Support||No Screening||Screening May be Required Depending on the Nature and Extent of Grantee Involvement|
LSC staff are available to work with grantees and others regarding the nature and limits of an LSC grantee’s involvement with the design and operation of any specific system.
ABA Free Legal Answers System
The ABA developed the Free Legal Answers online system for volunteer attorneys to provide limited legal services to low-income people. The system permits an applicant to submit a legal question that a volunteer attorney can respond to within a few days. The attorney’s response could include either or both legal advice and legal information. Although the precise arrangements differ across states and regions, Free Legal Answers typically screens applicants for incomes up to 250% of Federal Poverty Guidelines and does not screen for U.S. citizenship or eligible non-citizen status.
Implementation of Free Legal Answers in any state or region requires an administrator to take responsibility for operating the system. The administrator may operate the system by itself or with other entities. At a minimum, the administrator typically accepts responsibility for the following duties regarding the state-specific Free Legal Answers website (as stated in the licensing agreement provided by the ABA):
- overseeing the setup and daily operation of the website using the ABA’s template and software;
- responding to questions, problems, or concerns about the operation of the website; and
- notifying applicants who do not receive answers that they cannot be helped at that time.
- recruiting volunteer attorneys;
- verifying that all participating attorneys are licensed in that jurisdiction;
- working with local law schools to host virtual legal advice clinics;
- partnering with public libraries to promote use of the website;
- promoting the website to legal aid programs and other entities helping low-income people with legal issues;
- formulating and implementing a public awareness plan to promote use of the website by the public;
The software and hardware for operating the system may be maintained by the ABA’s national partners, or it may be operated by the administrator on a separate computer system. In practice, some administrators have set additional screening requirements and have implemented systems for monitoring the quality of the legal advice. The ABA provides malpractice insurance that can cover legal advice provided by attorneys through Free Legal Answers. In some areas malpractice insurance is provided by the administrator through a different policy.
In many areas of the country, non-LSC entities are potentially available to serve as administrators to operate a state-specific Free Legal Answers website. In other areas, the LSC grantee may be the only entity with the capacity to perform these duties.
Legal Advice and Legal Information
Both the ABA and LSC define “legal assistance” as services involving the application of law to facts in a way that requires legal analysis by a licensed lawyer or similarly authorized person. The person receiving the advice is a client. “Legal advice” is one type of legal assistance, usually involving brief advice without preparing any documents or taking any actions on the client’s behalf.
By contrast, any person can provide “legal information” that does not include legal analysis and that does not create an attorney-client relationship. See American Bar Association, Standards for the Provision of Civil Legal Aid 136–37 (2006) and Legal Services Corporation, Case Service Reporting Handbook §§ 2.2, 2.3 and 8.2 (rev. ed. 2017). By itself, the provision of legal information does not create a lawyer-client relationship, even when a lawyer provides the information.
For example, explaining the process for obtaining a child custody order is legal information. By contrast, an evaluation of a parent’s legal basis for a claim for custody of a specific child is legal advice to a client that only a lawyer or similarly licensed person can provide.
Legal Information Provided by LSC Grantees and Volunteer Attorneys
LSC does not apply the LSC-eligibility screening requirements to the provision of legal information. Thus, LSC grantees can provide legal information without screening the people receiving that information. The same rule applies to legal information provided by attorneys volunteering with a grantee. For example, a grantee could operate a Saturday housing clinic staffed by grantee attorneys and volunteer attorneys. At the clinic, those attorneys give a public presentation with legal information about eviction rights and procedures. LSC does not require eligibility screening of the people attending the presentation.
LSC Screening Requirements for Legal Advice by Volunteer Attorneys
LSC grantees can provide legal advice only to clients who meet the LSC requirements for U.S. citizenship or eligible non-citizen status (45 C.F.R. Part 1626). For LSC-funded legal advice, the clients must also meet the LSC financial eligibility requirements (45 C.F.R. Part 1611). These screening requirements apply to legal advice provided by grantee staff or by volunteer attorneys working through a grantee program, such as a clinic operated entirely by the LSC grantee.
For example: a woman with a housing problem calls a grantee. The grantee refers her to the grantee’s pro bono advice clinic the following Saturday. The grantee runs the clinic and provides support for the volunteer attorneys. The woman goes to the clinic, meets with a volunteer attorney, and the attorney provides her with legal advice. The clinic must screen that client for LSC eligibility because she obtained legal advice in a grantee program. Similarly, the grantee could accept the woman for services and assign her to a volunteer attorney instead of to a staff attorney. In that situation, the woman has been accepted as a grantee client and must be screened.
By contrast, a grantee who does not assist an applicant could provide contact information for other entities or private attorneys who might provide free advice or services while acting independently of the grantee. Under those circumstances, the mere fact of the grantee providing the contact information does not trigger the LSC screening requirements.
For example, a man with a child custody problem goes to the same grantee clinic in the prior example. The staff tell him that they have no attorneys that day who work on child custody. They provide him with the contact information for three attorneys who handle child custody work and sometimes provide free consultations. The grantee has no further contact with him. The man contacts one of the attorneys and says he got her name from the grantee. The attorney decides to provide a free 30-minute consultation including legal advice. The grantee has no involvement with that consultation or the attorney’s decision to provide it. The services of that attorney are not grantee services and the LSC screening requirements do not apply to that case.
LSC Grantee Involvement in Pro Bono Programs
LSC grantee involvement in pro bono programs varies greatly. In some situations, the grantee operates a pro bono program with its own resources and all clients receiving legal advice must be screened. In other situations, the program operates with support from the grantee and other partners. For example, a grantee might provide general support like advertising or recruitment for a pro bono program otherwise operated by a bar association. Those situations require a fact-specific analysis to determine whether the grantee’s level of support is so significant that it requires screening of clients receiving legal advice. Furthermore, a program might conduct LSC screening for clients receiving legal advice and not for clients receiving solely legal information.
LSC’s regulations regarding the screening requirements applicable to pro bono clinics provide useful guidance to the issues presented here. 45 C.F.R. Part 1614 addresses pro bono clinics that qualify for LSC’s Private Attorney Involvement (PAI) requirement. Those PAI clinics are activities “in which private attorneys, law students, law graduates, or other professionals are involved in providing legal information and/or legal assistance [including legal advice] to the public at a specified time and location.” 45 C.F.R. § 1614.3(h).
Grantees can provide support to the legal information portions of those clinics without any requirement for LSC screening. Id. at 1614.4(b)(5)(ii)(C). LSC support for the legal information portion of the clinic does not require LSC screening for other portions of the clinic providing legal assistance. Rather, LSC will look at whether the grantee provides support to those other parts of the clinic.
LSC permits grantees to “provide support to a PAI clinic that provides legal assistance [including legal advice]” but only “if the PAI clinic screens for eligibility” using the same screening criteria that the grantee uses for its own cases. Id. at 1614.4(b)(5)(ii) (emphasis added).
For clinics that do not screen for LSC eligibility, the grantee cannot allocate to PAI any costs associated with portion of the clinic providing legal assistance (including legal advice). Id. at 1614.4(b)(5)(ii)(C).
LSC has rejected suggestions that it permit LSC grantees to support legal assistance by private attorneys to clients who are not screened or only subject to limited screens. Rather, LSC determined that the LSC statutes and regulations require screening of clients who receive legal assistance supported by an LSC grantee.
LSC concluded that, regardless of whether legal assistance is provided directly by a recipient or through PAI activities individuals must be screened for LSC eligibility and legal assistance may be provided only to those individuals who may be served consistent with the LSC Act, the LSC appropriation statutes, and the applicable regulations.
79 Fed. Reg. 61770, 61777 (Oct. 15, 2014) (preamble to final rule).
Whether clients receiving legal advice via the ABA’s Free Legal Answers system must be screened for eligibility under LSC’s regulations turns on the nature and extent of the involvement of the LSC grantee, and, in particular, whether the grantee serves as the system administrator.
The Grantee Serves as the System Administrator
As with PAI clinics discussed in Part 1614, if an LSC grantee serves as the system administrator with responsibility for all of the above-described operations of the Free Legal Answers site, then the site must perform an LSC screen on all clients provided legal advice. If the volunteer attorneys limit their answer to legal information, then no screening is required.
If the grantee serves as a system administrator entirely with non-LSC public funds, (e.g., state or IOLTA funds), then the system must screen clients receiving legal advice for citizenship or eligible non-citizen status in accordance with Part 1626, but the Part 1611 financial eligibility requirements would not apply. Any financial eligibility requirements of the other public funder would apply instead.
The Grantee Is Not the System Administrator
If another entity serves as the system administrator, then the grantee may provide different types of support to the system. The nature and extent of that support will determine if the LSC screening requirement will apply to all clients receiving legal advice through the site.
For example, an LSC grantee might work with volunteer attorneys to develop standardized forms for divorce and support or other types of cases that are then available for free via the statewide website and used by the grantee, by any attorney, and by pro se litigants. A Free Legal Answers system operated by a non-LSC-funded organization could use those forms without applying the LSC screening requirements.
An LSC grantee might assist a bar association developing a Free Legal Answers system but not assist in the operation of the system (presuming that the development work was otherwise permissible). LSC would not require LSC screening during the later operation of the system without involvement of the grantee. See 45 C.F.R. § 1614.4(b)(4) (permitting grantees to allocate to PAI costs associated with technical assistance to bar associations or courts for planning and established private attorney legal clinics.)
The LSC client eligibility requirements involving citizenship or non-citizen status apply to legal advice provided to clients by volunteer attorneys working through a grantee-administered Free Legal Answers system. If the grantee involvement is LSC-funded, then the LSC financial eligibility requirements apply as well.
These screening requirements do not apply to people who contact a grantee-administered system, but who do not receive legal advice through that Free Legal Answers system. The grantee could provide anyone with information about contacting attorneys who are not using the Free Legal Answers system and who might provide legal advice outside of that system and without grantee involvement. The LSC screening requirements do not apply when the only grantee involvement was providing that type of contact information.
A non-grantee administered system is not subject to the LSC screening requirements solely because it uses resources that the grantee helped develop in the past. Grantee support for a non-grantee administered system must not support legal advice provided through the system to clients not subject to LSC screening.