QUESTIONS PRESENTED

I. Whether the Legal Services Corporation (LSC) Act or LSC’s regulations prohibit recipients from participating in research studies.

II. Whether the LSC Act or LSC’s regulations prohibit a recipient from participating in a research study in which a lottery determines whether eligible applicants for legal services receive extended representation or, alternatively, brief advice and self-help resources.

BRIEF ANSWER

I. No.  Neither the LSC Act nor LSC’s regulations prohibit recipients from participating in research studies.

II. No.  Neither the LSC Act or LSC’s regulations prohibit an LSC recipient from participating in a research study in which eligible applicants are selected randomly to receive extended representation or, alternatively, brief advice and self-help resources.

BACKGROUND

Legal aid providers have limited resources to serve low-income Americans seeking legal assistance.  For example, in 2017, LSC-funded legal aid organizations were able to fully address at most 38 percent of civil legal issues eligible clients presented to them.  LSC, The Justice Gap:  Measuring the Unmet Civil Legal Needs of Low-income Americans 13 (2017).  Recipients were not able to provide any legal assistance for more than 40 percent of the problems eligible applicants presented to them in 2017.  Id. at 43.  More than half of these applicants were not served because their problems fell outside the legal need categories recipients had prioritized.  Id.  About one in four eligible problems fell within recipients’ priorities, but the recipient had insufficient resources to assist the applicant.  Id.  In the face of profound resource constraints, data can help legal aid providers determine how best to direct their limited resources.  Outside organizations, such as government entities, foundations, other private funders, bar associations, and academic institutions may be available to fund or perform research that could provide useful data bearing on these resource-allocation issues. 

This Advisory Opinion arises out of a proposed research project with an LSC-funded legal aid provider that is intended to produce useful data to guide resource-allocation decisions.[1]

The LSC-funded legal aid provider assists eligible applicants who are seeking expungements of criminal records.  In an expungement (or expunction) proceeding, an individual with a criminal history (an arrest, a charge, or a conviction) requests that the official record of the event be destroyed, sealed, or otherwise rendered unavailable to the public. The recipient currently offers two levels of service to expungement applicants.  First, the recipient sometimes provides limited services, meaning brief advice and self-help materials.  Second, the recipient sometimes offers extended attorney representation.  The attorney providing the service is either a recipient staff lawyer, who dedicates about 20 percent of his work time to expungements, or a lawyer from a city’s pro bono partnership’s expungement project acting under a referral.  Although the recipient has not conducted a study, it believes, all other things being equal, that expungement success rates for limited services cases are likely lower than for extended representation cases.

The recipient’s service area consists of one urban and three rural counties.  In the urban county, in 2018, the recipient closed 77 limited services cases and 100 full representation cases for expungements.  The recipient believes, and research supports, that there are hundreds, and probably thousands, of client-eligible individuals who have expungement-eligible items on their criminal records.  Even with the support of pro bono attorneys, the recipient lacks the resources to provide full representation to all such individuals.  In 2018, the recipient accepted referrals and did intake for expungement applicants who contacted it.  In partnership with a local law school, it also held occasional “expungement events” at various locations.  As a function of its limited budget, this is the limit of the recipient’s outreach regarding expungements in the urban county.

In the three rural counties, the recipient’s expungement activity is more limited.  Because the recipient has no budget for expungement outreach in the rural counties, few client-eligible individuals contact it.  Even though there are likely hundreds of client-eligible individuals with expungement-eligible items on their criminal records in the rural counties, the recipient completed just four limited services cases and three extended representation cases in 2018.  The recipient determined that it has staff capacity to complete approximately 65 extended representation cases over two years in the three rural counties.  

The study would involve students and researchers at three law schools investigating the comparative cost-effectiveness of the recipient’s two expungement service levels – extended representation vs. brief advice and self-help resources.  The study would also examine whether expungement improves housing and employment outcomes for clients served.  The researchers have obtained grants from a federal government agency and from two national foundations to support the project.

The study will work as follows.  Using $175,000 in grant funds, the recipient will greatly increase its outreach and intake in all four counties in its service area—primarily by advertising for and holding more expungement events.  The recipient anticipates that, in each county, the increased outreach and expungement events will result in the recipient’s intaking at least double the number of applicants for whom it currently has the capacity to provide extended representation.  

During intake, every applicant will receive at least limited services consisting of (i) a copy of their unofficial criminal record, (ii) a review of their criminal record to identify expungable and non-expungable items, (iii) a brief explanation of the expungement process, and (iv) a copy of comprehensive, county-specific, illustrated, and user-focused self-help materials.  Then, the intake staff will explain the study to the applicant that:

• Individuals can enter into an optional study where the individual might be offered extended representation from a recipient staff attorney or a pro bono lawyer. The applicant will be told that there are not enough lawyers to provide all eligible individuals with extended representation, so the study will allocate access to extended representation by lottery to provide all individuals who choose to participate with an equal probability of extended representation.  Individuals who decline to opt in to the study are not offered extended representation.
• Those offered, by lottery, extended representation will be provided the $20 fee to obtain an official copy of their criminal record.
• Those not offered, by lottery, extended representation will receive limited services and self-help materials.
• To participate in the study, the individual must sign documents authorizing researchers to obtain official records (e.g., tax records) to track employment, income, and housing information.
• Study participants will be asked to respond to periodic optional surveys about their housing and employment situations for two years. Upon completing each optional survey, the participant will receive a $5 incentive payment.  If the participant answers all surveys, she or he will receive incentive payments totaling $175. 
• The individual can withdraw from the study at any time by notifying the researchers.

Under the study, because of the grant-funded additional outreach and intake, the recipient anticipates the number of individuals seeking assistance for expungement will increase. The recipient will not, however, have more capacity than it had in 2018 to provide extended representation services.  Accordingly, the recipient anticipates that the number of individuals receiving extended representation in its urban county (approximately 100 per year) under the study will remain at the same level as in 2018.  But because of the grant-funded outreach and intake, the recipient anticipates that an increased number of individuals will receive extended representation in the recipient’s rural counties -- approximately 65 over two years instead of three in 2018.  In sum, the recipient expects that during the study substantially more client-eligible individuals in its service area will receive some level of legal assistance in expungement matters.

APPLICABLE LAW

Neither the LSC Act nor LSC’s regulations address recipient participation in research studies. But both the LSC Act and LSC’s regulations include other provisions relating to research that bear on recipient participation in research studies.

The LSC Act expressly authorizes LSC to conduct research “relating to the delivery of legal assistance.”  42 U.S.C. § 2996e(a)(3) (authorizing LSC “to undertake directly, or by grant or contract, the following activities relating to the delivery of legal assistance—(A) research, except that broad general legal or policy research unrelated to representation of eligible clients may not be undertaken by grant or contract . . . ”).

The LSC Act and LSC’s regulations give recipients the responsibility for setting case priorities.  The LSC Act requires that “recipients, consistent with goals established by the Corporation, adopt procedures for determining and implementing priorities for the provision of such assistance, taking into account the relative needs of eligible clients for such assistance . . ..” Id. § 2996f(a)(2)(C).  Part 1620 directs recipients to consider various factors when establishing case priorities, including:

(3) The population of eligible clients in the geographic areas served by the recipient, including all significant segments of that population with special legal problems or special difficulties of access to legal services; . . . (6) The availability of other sources of training, support, and outreach services; . . . (8) The susceptibility of particular problems to solution through legal processes; (9) Whether legal efforts by the recipient will complement other efforts to solve particular problems in the area served; (10) Whether legal efforts will result in efficient and economic delivery of services; and (11) Whether there is a need to establish different priorities in different parts of the recipient’s service area.

 45 C.F.R. § 1620.3(c).

 A recipient’s governing body must conduct an annual review of its case priorities.  Id. § 1620.5(a) (“Annual Review”).  To determine “whether the recipient’s priorities should be changed,” LSC encourages the governing body to consider:

 (1) The extent to which the objectives of the recipient’s priorities have been accomplished; (2) Changes in the resources of the recipient; (3) Changes in the size, distribution, or needs of the eligible client population; and (4) The volume of non-priority emergency cases or matters in a particular legal area since priorities were last reviewed.

 Id. § 1620.5(b).  Although neither the LSC Act nor LSC’s regulations identify any data a recipient must use when considering these factors and setting case priorities, data about legal needs and available resources could enhance the quality of decision-making about the allocation of scarce legal aid resources.[2]

Nothing in the LSC Act or LSC’s regulations prohibit recipients from structuring intake so that a lottery determines whether eligible applicants receive extended services or, alternatively, brief advice and self-help resources.  The federal government regularly allocates scarce resources using randomization pursuant to statutes and regulations governing, among other things, the military draft,[3] jury selection,[4] hunting,[5] commercial license distribution,[6] agriculture,[7] and immigration.[8]  Most relevant here, Congress has in other contexts directed that randomization be used to study the effectiveness of various government programs.[9]

ANALYSIS

I. Whether the LSC Act or LSC’s regulations prohibit recipients from participating in research studies.

 Neither the LSC Act nor LSC’s regulations prohibit recipient participation in research studies.  The LSC Act expressly authorizes LSC to conduct research “relating to the delivery of legal assistance,” and the participation of LSC funding recipients in such research would be consistent with this provision.  Moreover, both the LSC Act and LSC’s regulations require recipients to set and regularly update case priorities for providing legal assistance.  45 C.F.R. §§ 1620.3(c), 1620.5(a).  Data obtained from research studies can enhance the process of prioritizing legal needs and allocating scarce legal aid resources. 

We are not aware of any other statute, regulation, or ethical rule that would render recipient involvement in research studies illegal or improper.  The American Bar Association (ABA) Model Rules of Professional Conduct, including the Model Rules governing Communications (Rule 1.4), Confidentiality of Information (Rule 1.6), and Duties to Prospective Clients (Rule 1.18), do not prohibit lawyers from partnering with researchers.  Model Rule 1.4[10] may require a lawyer to obtain a client’s consent for a study, such as if any confidential client information is being used in the study.

II. Whether the LSC Act or LSC’s regulations prohibit a recipient from participating in a research study in which eligible applicants would be selected randomly to receive extended representation or, alternatively, brief advice and self-help resources.

Neither the LSC Act nor LSC’s regulations prohibit recipients from participating in the proposed research study.  Nor do the ABA Model Rules of Professional Conduct preclude such participation.

Under the study’s design, more individuals in the recipient’s four-county service area will receive some level of legal assistance in expungement matters.  In 2018, three individuals in the rural counties and 100 individuals in the recipient’s urban county received extended attorney representation.  Under the proposed study, it is projected that over two years 65 individuals in the rural counties and 200 individuals in the urban county will receive extended representation annually.  In 2018, four individuals in the rural counties and 77 individuals in the urban county received limited services (brief advice and self-help).  Under the proposed study, it is projected that substantially more individuals throughout the service area will receive limited services. We believe limited services are better than no services at all, and, in any event, the study will provide data on the outcomes for individuals receiving solely limited services.

That a lottery would be used to determine which eligible applicants would receive extended representation or, alternatively, brief advice and self-help resources, does not alter our conclusion.  Our understanding is that currently the allocation of the recipient’s expungement services turns largely on the personal characteristics or resources of individual applicants, including free time, social networks, access to transportation, determination, facility with languages that the recipient can accommodate, and other characteristics needed to succeed in finding the recipient and completing its intake process.

Under the study, the recipient will conduct increased outreach, including community events designed to make it easier for anyone in the recipient’s service population who would benefit from an expungement to contact the recipient and complete intake.  Everyone able to reach the recipient through this expanded outreach, and agreeing to opt in to the study, would have an equal chance to receive extended services, resulting in a more equitable distribution of the recipient’s scarce attorney resources across the service area.  Neither the LSC Act, LSC’s regulations, nor the ABA Model Rules of Professional Conduct preclude randomly allocating scarce services or create a requirement or preference for allocating legal services to those individuals who are best able to access a legal services provider and complete the intake process. We are not aware of any other statute or regulation that would render randomization illegal or improper.  To the contrary, the federal government allocates scare resources using randomization in various statues and regulations.[11]

This opinion should not be interpreted as an LSC requirement that its funding recipients participate in research studies generally or in any particular study. To the extent recipients participate in research studies, they should be aware of the research organization’s rules or guidelines for responsibly conducting research, and should secure clients’ informed and voluntary consent where required.

RONALD S. FLAGG
Vice President for Legal Affairs andGeneral Counsel

 STEFANIE K. DAVIS
Assistant General Counsel

KARLY SATKOWIAK
Graduate Law Fellow

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[1] Our understanding of the proposed research study comes from the researchers who are partnering with the recipient.

[2] LSC requires it recipients to collect information on case results achieved for clients in all extended service cases.  Program Letter 16-5 (August 4, 2016).  LSC does not, however, specify how such information must be used.

[3] See, e.g., 50 U.S.C. § 3805 (Westlaw through Pub L. No. 16-5) (providing for randomly selecting individuals for training and military service).

[4] See, e.g., 28 U.S.C. § 1863 (Westlaw through Pub L. No. 16-5) (providing for random jury selection).

[5] See, e.g., 50 C.F.R. § 32.62 (2018) (issuing federal land hunting permits by random drawing to maintain quotas).

[6] See, e.g., 47 U.S.C. § 309(i) (Westlaw through Pub. L. No. 16-5) (granting radio permits to qualified applicants by random selection to diversity ownership). 

[7] See, e.g., 7 U.S.C. § 1359gg (Westlaw through Pub. L. No. 16-5) (allocating sugarcane growing acreage to farms by random drawing under a quota system).

[8] See, e.g., 8 U.S.C. § 1153(e)(2) (Westlaw through Pub. L. No. 16-5) (awarding diversity visas among eligible immigrant applicants randomly).

[9] See, e.g., 20 U.S.C. § 9544 (Westlaw through Pub. L. No. 16-5) (education policy study); 34 U.S.C. § 10631 (Westlaw through Pub. L. No. 16-5) (study of reentry programs for justice-involved individuals); 42 U.S.C. § 613(f) (Westlaw through Pub. L. No. 16-5) (Temporary Assistance for Needy Families study); 42 U.S.C. § 9844 (Westlaw through Pub. L. No. 16-5) (Head Start Programs study); 42 U.S.C. § 62b (2007) (child welfare study).

[10] Model Rules of Prof’l Conduct r. 1.4 (Am. Bar Ass’n 2018) ( “(a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent . . . is required by these rules; . . . (b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.”). 

[11] See supra, notes 3-9.