AO-2017-005

Definition of “full-time attorney” in 45 C.F.R. Part 1604

QUESTIONS PRESENTED

45 C.F.R. § 1604.4 provides that a recipient’s written policies may permit a “full-time attorney” to engage in the outside practice of law under certain specified circumstances. Section 1604.2(a) defines “full-time attorney” as “an attorney who is employed full-time by a recipient in legal assistance activities supported in major part by the Corporation, and who is authorized to practice law in the jurisdiction where assistance is provided.” The questions presented all bear on the definition of “full-time attorney,” specifically:

  1. Does “supported in major part by the Corporation” refer to an attorney’s legal assistance activities or the recipient’s legal assistance activities?
  2. What does “supported in major part” mean?
  3. What does “full-time” mean?

BRIEF ANSWER

Under Part 1604, a “full-time attorney” is an attorney employed “full-time” (as defined by the recipient) in a position where 50% or more of the attorney’s salary is funded by LSC.

  1. Based on the plain language of the LSC Act and the drafting history of Part 1604, “supported in major part by the Corporation” refers to an attorney’s legal assistance activities, and not to the legal assistance activities of the recipient itself.
  2. Based on the text of the LSC Act and prior LSC guidance, “in major part” means 50% or more.
  3. Based on the drafting history of Part 1604, the meaning of “full-time” is left for recipients to define in their outside practice of law policies.

BACKGROUND

Section 1007(a)(4) of the LSC Act provides that LSC “shall insure that attorneys employed full time in legal assistance activities supported in major part by the Corporation refrain from (A) any compensated outside practice of law, and (B) any uncompensated outside practice of law except as authorized in guidelines promulgated by the Corporation.” 42 U.S.C. § 2996f(a)(4). The restrictions applicable under this provision appear clearly to apply to attorneys’ legal assistance activities.

LSC implemented section 1007(a)(4) by promulgating 45 C.F.R. Part 1604. Consistent with the language of the LSC Act, the restrictions in the original Part 1604, promulgated in 1976, applied directly to attorneys, providing that “[n]o attorney shall engage in any outside practice of law if the director of the recipient has determined that such practice is inconsistent with the attorney’s full time responsibilities.” 41 Fed. Reg. 18512 (May 5, 1976). It defined “attorney” as “a person who is employed full time in legal assistance activities supported in major part by the Corporation, and who is authorized to practice law in the jurisdiction where assistance is rendered.” Id.

While the 1976 version of Part 1604 was in effect, and consistent with both the LSC Act and the regulation, LSC’s Office of Legal Affairs (and its predecessor, the Office of General Counsel) consistently read the restriction on the outside practice of law as applying to attorneys. See External Opinion EX-2003-1012 (July 23, 2003) (“full-time attorneys employed by recipients”); External Opinion EX-99-02 (June 18, 1999) (“full time attorneys who are paid 50% or more of their salary with LSC funds”); Opinion dated Dec. 24, 1991 (“full-time attorneys employed by recipients”); Opinion dated Nov. 25, 1980 (“staff attorneys”); Opinion dated March 14, 1979 (to Alaska Legal Services Corporation) (“program attorneys”); Opinion dated March 14, 1979 (to Southern New Mexico Legal Services, Inc.) (“legal services attorneys”).

In 2003, LSC amended Part 1604. LSC amended the general policy to require recipients to “adopt written policies governing the outside practice of law by full-time attorneys that are consistent with the LSC Act, this part and applicable rules of professional responsibility.” 45 C.F.R. § 1604.3(a); see also 68 Fed. Reg. 67372, 67374 (Dec. 2, 2003). In addition, “because [the definition of attorney in the original Part 1604 was] inconsistent with the definition of ‘attorney’ in Part 1600[,]” LSC eliminated that term and definition. 68 Fed. Reg. 67373 (final rule); 67 Fed. Reg. 57550, 57551 (Sept. 11, 2002) (proposed rule). In its place, LSC added the term “full-time attorney” and defined it as “an attorney who is employed full-time by a recipient in legal assistance activities supported in major part by the Corporation, and who is authorized to practice law in the jurisdiction where assistance is provided.” 45 C.F.R. § 1604.2(a) (emphasis added). In amending the regulation, LSC did not define “full-time” because it wanted to “leave the decision as to what constitutes ‘full-time’ to the recipient’s own personnel and outside practice policies and to any appropriate statutory definitions found elsewhere.” 67 Fed. Reg. 57551. Nor did LSC explain why it add the words “by a recipient” to the definition of “full-term attorney.”

Since amending the regulatory language in 2003, the Office of Legal Affairs has issued several opinions clarifying the term “full-time attorney,” without addressing whether “supported in major part by the Corporation” refers to an attorney’s legal assistance activities or the recipient’s legal assistance activities. See External Opinion EX-2005-1004 (June 10, 2005); see also Advisory Opinion AO-2013-009 (Nov. 26, 2013); Advisory Opinion AO-2013-006 (Aug. 12, 2013).

ANALYSIS

I. Does “supported in major part by the Corporation” refer to an attorney’s legal assistance activities or all of a recipient’s legal assistance activities?

The plain language of the LSC Act and the drafting history of Part 1604 demonstrate “supported in major part by the Corporation” refers to the legal work performed by an attorney and not to all of the recipient’s legal assistance activities.

Section 1007(a)(4) of the LSC Act restricts “attorneys employed full time in legal assistance activities supported in major part by the Corporation” from engaging in the outside practice of law. 42 U.S.C. § 2996f(a)(4). Unlike other restrictions in section 1007 that apply to recipients, see, e.g., id. § 2996f(a)(7), the section 1007(a)(4) restriction, by its terms, applies to “attorneys[,]” id. § 2996f(a)(4). Moreover, applying the restriction to attorneys whose work is funded in major part by LSC is consistent with other section 1007 restrictions that regulate activities of LSC-funded attorneys but not of other attorneys working at a recipient. See id. § 2996f(a)(6) (restricting attorneys engaged in legal assistance activities funded by LSC from engaging in political activities). By contrast, reading section 1007(a)(4) to apply to all attorneys working for a recipient whose work is funded in major part by LSC would lead this restriction to apply only to some recipients, an outcome not found elsewhere in the statute and not supported by LSC. See id. § 2996 et seq.; Opinion dated Feb. 28, 1992 (rejecting interpretation of LSC Act in manner that would apply requirement to only some recipients).

The original Part 1604 mirrored the LSC Act’s text, and, consistent with the statutory language, the original Part 1604 applied the restriction to attorneys and not recipients as a whole. See External Opinion EX-2003-1012 (July 23, 2003) (“full-time attorneys employed by recipients”); External Opinion EX-99-02 (June 18, 1999) (“full time attorneys who are paid 50% or more of their salary with LSC funds”); Opinion dated Dec. 24, 1991 (“full-time attorneys employed by recipients”); Opinion dated Nov. 25, 1980 (“staff attorneys”); Opinion dated March 14, 1979 (to Alaska Legal Services Corporation) (“program attorneys”); Opinion dated March 14, 1979 (to Southern New Mexico Legal Services, Inc.) (“legal services attorneys”); see also 41 Fed. Reg. 18512 (preamble).

Nothing in the regulatory history of the 2003 amendment, which added the phrase “by the recipient,” suggests LSC meant to substantively change the definition to deviate from the text of the LSC Act. Accordingly, “supported in major part” refers to an attorney’s legal services activities.

II. What does “supported in major part” mean?

As used in Part 1604, “in major part” means half or more of the attorney’s full-time salary is funded by LSC.

The Office of Legal Affairs has long and consistently interpreted “in major part” to mean a majority of the funding for an attorney’s salary. See External Opinion EX-99-02 (June 18, 1999) (“restrictions apply only to full time attorneys who are paid 50% or more of their salary with LSC funds”). Elsewhere in section 1007, Congress imposed restrictions on “attorneys . . . supported in whole or in part by the Corporation[,]” meaning attorneys who received any funding from LSC. See e.g., 42 U.S.C. § 2996f(a)(6) (emphasis added). By contrast, Congress restricted the outside practice of law by attorneys “supported in major part by the Corporation[.]” Id. § 2996f(a)(4) (emphasis added). Absent congressional or regulatory clarification as to what “in major part” means, LSC’s longstanding interpretation that it means “50% or more” is reasonable. 

III. What does “full-time” mean?

In amending Part 1604 in 2003, LSC did not define “full-time,” stating that it wanted to “leave the decision as to what constitutes ‘full-time’ to the recipient’s own personnel and outside practice policies and to any appropriate statutory definitions found elsewhere.” 67 Fed. Reg. 57551 (proposed rule); see also 68 Fed. Reg. 67373 (final rule). Nevertheless, a program’s definition of “full-time” as applied for its outside practice of law policy should be consistent with the definition the program uses for other purposes. 68 Fed. Reg. 67372.

CONCLUSION

As used in Part 1604, a “full time attorney” means an individual employed full time (as defined by the recipient) and whose work is supported by 50% or more by LSC.

RONALD S. FLAGG
General Counsel and Vice President for Legal Affairs
BLAIR L. GILBERT
Graduate Fellow