82 FR 10446 - Fee-Generating Cases

LEGAL SERVICES CORPORATION

Federal Register Volume 82, Issue 28 (February 13, 2017)

Page Range		10446-10449
FR Document		2017-02717
This proposed rule revises the Legal Services Corporation (LSC or Corporation) regulation regarding fee-generating cases. This proposed rule clarifies the definition of ``fee-generating case,'' clarifies that brief advice is permitted by the regulation, and revises how a recipient accounts for attorneys' fees awards.
Federal Register, Volume 82 Issue 28 (Monday, February 13, 2017)
[Federal Register Volume 82, Number 28 (Monday, February 13, 2017)]
[Proposed Rules]
[Pages 10446-10449]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-02717]


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LEGAL SERVICES CORPORATION

45 CFR Part 1609


Fee-Generating Cases

AGENCY: Legal Services Corporation.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This proposed rule revises the Legal Services Corporation (LSC 
or Corporation) regulation regarding fee-generating cases. This 
proposed rule clarifies the definition of ``fee-generating case,'' 
clarifies that brief advice is permitted by the regulation, and revises 
how a recipient accounts for attorneys' fees awards.

DATES: Comments must be submitted by March 15, 2017.

ADDRESSES: You may submit comments by any of the following methods:

[[Page 10447]]

     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Email: [email protected]. Include ``Comments on 
Revisions to Part 1609'' in the subject line of the message.
     Fax: (202) 337-6519.
     Mail: Stefanie K. Davis, Assistant General Counsel, Legal 
Services Corporation, 3333 K Street NW., Washington, DC 20007, ATTN: 
Part 1609 Rulemaking.
     Hand Delivery/Courier: Stefanie K. Davis, Assistant 
General Counsel, Legal Services Corporation, 3333 K Street NW., 
Washington, DC 20007, ATTN: Part 1609 Rulemaking.
    Instructions: Electronic submissions are preferred via email with 
attachments in Acrobat PDF format. LSC will not consider written 
comments sent to any other address or received after the end of the 
comment period.

FOR FURTHER INFORMATION CONTACT: Stefanie K. Davis, Assistant General 
Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 
20007; (202) 295-1563 (phone), (202) 337-6519 (fax), or [email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    Section 1007(b)(1) of the Legal Services Corporation Act of 1974 
prohibits recipients from using LSC funds ``to provide legal assistance 
(except in accordance with guidelines promulgated by the Corporation) 
with respect to any fee-generating case[.]'' 42 U.S.C. 2996f(b)(1). LSC 
implemented this provision through 45 CFR part 1609. In the preamble to 
part 1609, LSC explained that the private bar is generally ``eager to 
accept contingent fee cases and cases in which there may be an award of 
attorneys' fees to be paid by the opposing party pursuant to 
[statute].'' 41 FR 38505, Sept. 10, 1976. LSC therefore drafted part 
1609 to ``insure that recipients do not use scarce legal services 
resources when private attorneys are available to provide effective 
representation and . . . assist eligible clients to obtain appropriate 
and effective legal assistance.'' 45 CFR 1609.1(a), (b). Nevertheless, 
LSC recognized that ``there may be instances when no private attorney 
is willing to represent an individual, because the recovery of a fee is 
unlikely, the potential fee is too small, or some other reason.'' 41 FR 
38505, Sept. 10, 1976.
    To balance these considerations, part 1609 (1) defines ``fee-
generating case'' to prohibit recipients from accepting cases that a 
private attorney would take, and (2) provides exceptions to the 
prohibition for when adequate representation by the private bar is 
unavailable and implements safeguards to prevent recipients from taking 
cases the private bar would accept. Id. The definition of ``fee-
generating case'' includes ``every situation in which an attorney 
reasonably may expect to receive a fee for services from any source 
except the client.'' 41 FR 38505. Specifically, LSC defined ``fee-
generating case'' as ``any case or matter which, if undertaken on 
behalf of an eligible client by an attorney in private practice, 
reasonably may be expected to result in a fee for legal services from 
an award to a client, from public funds, or from the opposing party.'' 
Id. Section 1609.3 then clarified circumstances in which a recipient 
may use LSC funds to provide legal assistance in a fee-generating case, 
such as after the case has been rejected by the local lawyer referral 
service or by two private attorneys. 45 CFR 1609.3(a)(1).
    In 1996, LSC proposed two changes to clarify the meaning of ``fee-
generating case.'' First, LSC proposed ``[a] technical numerical 
change'' to the definition of ``fee-generating case'' which was 
intended ``to clarify that the definition includes fees from three 
sources: an award (1) to a client, (2) from public funds, or (3) from 
the opposing party.'' 61 FR 45765, Aug. 29, 1996. This proposed change 
resulted in comments about whether LSC intended to make substantive 
changes to the definition. 62 FR 19398, Apr. 21, 1997. Because the 
Board did not intend to change the definition and sought to avoid 
confusion about its intent, the Board rejected the numerical changes to 
the proposed rule. Id.
    Nevertheless, the Board adopted a second proposed change by 
adopting language that explained what is not a ``fee-generating case.'' 
Id. The revision excluded court appointments from the definition 
because such cases, even where fees are paid, are considered a 
professional obligation. Id. Additionally, the revision excluded 
situations where recipients undertake representation under a contract 
with a government agency or other entity and the agency or entity pays 
the recipient ``because a contract payment does not constitute fees 
that come from an award to a client or attorneys' fees that come from 
the losing party in a case, or from public funds.'' Id.; see 45 CFR 
1609.2(b). LSC has not made substantive changes to the definition of 
``fee-generating case'' since this revision. See 76 FR 23502, Apr. 27, 
2011.
    When a recipient may take a fee-generating case, Part 1609 also 
prescribes how recipients account for attorneys' fees received in the 
case. Part 1609 requires the proceeds be remitted to the recipient. 41 
FR 38505. In 1984, LSC adopted a new section, Sec.  1609.6, that 
required attorneys' fees received by the recipient to be returned to 
the fund from which the resources to litigate the case came. 49 FR 
19657, May 9, 1984. In other words, if the recipient funded a 
particular case half with LSC funds and half with private funds, Sec.  
1609.6 required the recipient to allocate any attorneys' fees received 
to each fund in equal proportion. The new section also required that 
fees be recorded during the accounting period in which the program 
receives the award. Id.
    In 1996, LSC's appropriation legislation provided that no LSC funds 
could be used to provide financial assistance to a recipient that 
receives attorneys' fees pursuant to any federal or state law. Sec. 
504(a)(13), Public Law 104-134, 110 Stat. 1321, 1321-55; 75 FR 21507, 
Apr. 26, 2010. To implement this legislation, LSC created a separate 
rule, 45 CFR part 1642. 62 FR 25862, May 12, 1997 (final rule); 61 FR 
45762, Aug. 29, 1996 (interim final rule). LSC moved Sec.  1609.6 to 
part 1642 and revised the provision to require recipients to allocate 
fees from cases or matters supported in whole or in part with LSC funds 
to the LSC fund in the same proportion that the case or matter was 
funded with LSC funds. Id. In a departure from then-existing Sec.  
1609.6, LSC did not propose to dictate how recipients allocated 
remaining fees to their non-LSC accounts. Id.
    In 2010, Congress repealed the prohibition on accepting and 
retaining attorneys' fees. Sec. 533, Public Law 111-117, 123 Stat. 
3034, 3157. LSC subsequently repealed part 1642 but retained two 
provisions relevant to accounting for attorneys' fee awards and 
accepting reimbursement of costs from a client. 75 FR 6816, Feb. 11, 
2010 (interim final rule); 75 FR 21506, Apr. 26, 2010 (final rule). LSC 
placed these two provisions in part 1609 at Sec. Sec.  1609.4 and 
1609.6, respectively. 75 FR 21508. LSC has made no changes to either 
section since then.
    LSC added rulemaking on part 1609 to its annual rulemaking agenda 
in June, 2015. On July 18, 2016, the Committee voted to recommend that 
the Board authorize rulemaking on part 1609. On January 26, 2017, the 
Committee voted to recommend that the Board approve publication of this 
NPRM in the Federal Register for notice and comment. On January 28, 
2017, the Board accepted the Committee's recommendation and voted to 
approve publication of this NPRM.

[[Page 10448]]

II. Proposed Changes

Section 1609.1 Purpose

    LSC proposes to make no changes to this section.

Section 1609.2 Definition

    Recipients have repeatedly requested guidance regarding what 
constitutes a ``fee-generating case'' as defined in Sec.  1609.2(a). 
Questions have included whether paid court appointments are ``fee-
generating cases'' and whether ``advice and counsel'' or ``brief 
services'' are prohibited if the case may, during the course of 
subsequent extended representation, develop into a ``fee-generating 
case.'' Recipients have also sought guidance regarding permissible 
sources of fees.
    Section 1609.2 currently provides, ``Fee-generating case means any 
case or matter which, if undertaken on behalf of an eligible client by 
an attorney in private practice, reasonably may be expected to result 
in a fee for legal services from an award to a client, from public 
funds or from the opposing party.'' 45 CFR 1609.2(a). A reader could 
interpret ``award'' as modifying only ``to a client'' and not to 
include an ``award . . . from public funds or [an award] from the 
opposing party.'' Thus, under the current definition, a recipient might 
accept a case that may result in an award from public funds, a result 
not intended by LSC. Therefore, LSC proposes removing ``from public 
funds or from the opposing party'' from the definition.
    Additionally, LSC proposes to revise part 1609 to clarify that a 
recipient may provide brief services to an eligible client despite the 
possibility that the case may result in fees otherwise restricted by 
part 1609. In AO-2015-002, LSC considered whether a recipient may 
provide ``advice and counsel'' or ``limited services'' (as defined in 
45 CFR 1611.2(a) and (e)) to an eligible client where the matter might 
constitute a fee-generating case if extended services were provided. 
Based on the language of Sec.  1609.3, which prohibits recipients from 
using LSC funds to provide assistance in ``every situation in which an 
attorney reasonably may expect to receive a fee[,]'' LSC concluded an 
``attorney's reasonable expectation of such fees would not typically 
arise until after . . . initial advice or brief services was under way 
or had been completed.'' AO-2015-002, June 17, 2015. LSC proposes 
incorporating this clarification into part 1609 by adding a separate 
paragraph to Sec.  1609.2(b). The new paragraph would explain that 
``advice and counsel'' or ``limited services'' in matters that may 
later constitute fee-generating cases are not prohibited by part 1609.
    Finally, in response to questions regarding court appointments, 
revised Sec.  1609.2(b) states that a court appointment pursuant to a 
statute or court rule or practice that is equally applicable to all 
attorneys in the jurisdiction is not a fee-generating case. 45 CFR 
1609.2.

Section 1609.3 General Requirements

    LSC proposes a technical change to the heading of Sec.  1609.3 to 
more accurately reflect the topic it addresses. Section 1609.3 briefly 
sets forth the general prohibition on a recipient's using LSC funds to 
provide legal assistance in a fee-generating case. The bulk of Sec.  
1609.3, however, prescribes the circumstances and procedures under 
which recipients may accept fee-generating cases. To more aptly reflect 
the substance of Sec.  1609.3, LSC proposes to rename Sec.  1609.3 
``Authorized representation in a fee-generating case.''

Section 1609.4 Accounting For and Use of Attorneys' Fees

    LSC proposes to revise part 1609's accounting requirement for 
receipt of attorneys' fees. Currently Sec.  1609.4 requires that 
attorneys' fees received by a recipient supported at least in part by 
LSC funds be allocated to the LSC grant account in the proportion to 
which the LSC funds were used. Sec.  1609.4(a). This language requires 
this accounting only for attorneys' fees received by the recipient, 
which could be interpreted to mean that attorneys' fees awarded to a 
staff attorney in his or her own name need not be remitted to the 
recipient or be subject to the accounting requirement.
    To clarify that attorneys' fee awards received by either the 
recipient or a recipient's staff attorney are subject to the accounting 
requirement, LSC proposes the following revisions to Sec.  1609.4. 
First, LSC proposes to require recipients to file any petitions for 
attorneys' fees in the name of the recipient and not in the name of any 
staff attorney. To the extent a jurisdiction may allow an attorneys' 
fee petition in the recipient's name rather than a staff attorney, this 
change would help ensure that the court would award attorneys' fees to 
the organization and not to an individual staff attorney. LSC proposes 
placing this addition as Sec.  1609.4(a), and redesignating the current 
paragraphs (a) and (b) of this section as paragraphs (b) and (c), 
respectively.
    Second, LSC proposes to state explicitly that, in the event a 
jurisdiction requires that attorneys' fee petitions be made in a staff 
attorney's name, the staff attorney must remit the award to the 
recipient, which must then allocate an award of attorneys' fees to its 
LSC grant account in proportion to the amount of LSC funds used to 
obtain the award. LSC believes that these two changes will accommodate 
variations in state and local rules governing the award of attorneys' 
fees and help ensure that any attorneys' fee awards supported by LSC 
funds are adequately credited to LSC funds.
    Finally, to more aptly describe the substance of Sec.  1609.4, LSC 
proposes changing the heading to ``Requesting and receiving attorneys' 
fees.''

Section 1609.5 Acceptance of Reimbursement From a Client

    To create consistency in the verbs used in the headings for Sec.  
1609.4 and Sec.  1609.5 and more aptly describe the substance of the 
latter section, LSC proposes to change the heading to ``Receiving 
reimbursement from a client.'' LSC proposes no substantive changes to 
this section.

Section 1609.6 Recipient Policies, Procedures and Recordkeeping

    LSC proposes to make no changes to this section.

List of Subjects in 45 CFR Part 1609

    Administrative practice and procedure, Grant programs--law, Legal 
services.

    For the reasons set forth in the preamble, the Legal Services 
Corporation proposes to amend 45 CFR part 1609 as follows:

PART 1609--FEE-GENERATING CASES

0
1. The authority citation for part 1609 continues to read as follows:

    Authority:  42 U.S.C. 2996g(e).

0
2. Revise paragraph (a) and add paragraph (b)(3) to Sec.  1609.2 to 
read as follows:


Sec.  1609.2   Definitions.

    (a) Fee-generating case means any case or matter which, if 
undertaken on behalf of an eligible client by an attorney in private 
practice, reasonably may be expected to result in a fee for legal 
services from an award to a client.
    (b) * * *
    (3) A recipient provides only advice and counsel or limited 
services, as those terms are defined in 45 CFR 1611.1(a) and (e), to an 
eligible client.
0
3. Revise the heading of Sec.  1609.3 to read as follows:

[[Page 10449]]

Sec.  1609.3   Authorized representation in a fee-generating case.

* * * * *
0
4. Revise Sec.  1609.4 to read as follows:


Sec.  1609.4   Requesting and receiving attorneys' fees.

    (a) Any petition seeking attorneys' fees for representation 
supported in whole or in part with funds provided by LSC, shall, to the 
extent permitted by law, be filed in the name of the recipient.
    (b) Attorneys' fees received by a recipient or an employee of a 
recipient for representation supported in whole or in part with funds 
provided by LSC shall be allocated to the fund in which the recipient's 
LSC grant is recorded in the same proportion that the amount of LSC 
funds expended bears to the total amount expended by the recipient to 
support the representation.
    (c) Attorneys' fees received shall be recorded during the 
accounting period in which the money from the fee award is actually 
received by the recipient and may be expended for any purpose permitted 
by the LSC Act, regulations and other law applicable at the time the 
money is received.
0
5. Revise the heading of Sec.  1609.5 to read as follows:


Sec.  1609.5   Receiving reimbursement from a client.

* * * * *

    Dated: February 6, 2017.
Stefanie K. Davis,
Assistant General Counsel.
[FR Doc. 2017-02717 Filed 2-10-17; 8:45 am]
 BILLING CODE 7050-01-P
Federal Register / Vol. 82, No. 28 / Monday, February 13, 2017 / Proposed Rules 10447

• Federal eRulemaking Portal: http:// representation by the private bar is 1609 requires the proceeds be remitted
www.regulations.gov. Follow the unavailable and implements safeguards to the recipient. 41 FR 38505. In 1984,
instructions for submitting comments. to prevent recipients from taking cases LSC adopted a new section, § 1609.6,
• Email: lscrulemaking@lsc.gov. the private bar would accept. Id. The that required attorneys’ fees received by
Include ‘‘Comments on Revisions to Part definition of ‘‘fee-generating case’’ the recipient to be returned to the fund
1609’’ in the subject line of the message. includes ‘‘every situation in which an from which the resources to litigate the
• Fax: (202) 337–6519. attorney reasonably may expect to case came. 49 FR 19657, May 9, 1984.
• Mail: Stefanie K. Davis, Assistant receive a fee for services from any In other words, if the recipient funded
General Counsel, Legal Services source except the client.’’ 41 FR 38505. a particular case half with LSC funds
Corporation, 3333 K Street NW., Specifically, LSC defined ‘‘fee- and half with private funds, § 1609.6
Washington, DC 20007, ATTN: Part generating case’’ as ‘‘any case or matter required the recipient to allocate any
1609 Rulemaking. which, if undertaken on behalf of an attorneys’ fees received to each fund in
• Hand Delivery/Courier: Stefanie K. eligible client by an attorney in private equal proportion. The new section also
Davis, Assistant General Counsel, Legal practice, reasonably may be expected to required that fees be recorded during
Services Corporation, 3333 K Street result in a fee for legal services from an the accounting period in which the
NW., Washington, DC 20007, ATTN: award to a client, from public funds, or program receives the award. Id.
Part 1609 Rulemaking. from the opposing party.’’ Id. Section
1609.3 then clarified circumstances in In 1996, LSC’s appropriation
Instructions: Electronic submissions
which a recipient may use LSC funds to legislation provided that no LSC funds
are preferred via email with attachments
provide legal assistance in a fee- could be used to provide financial
in Acrobat PDF format. LSC will not
consider written comments sent to any generating case, such as after the case assistance to a recipient that receives
other address or received after the end has been rejected by the local lawyer attorneys’ fees pursuant to any federal
of the comment period. referral service or by two private or state law. Sec. 504(a)(13), Public Law
attorneys. 45 CFR 1609.3(a)(1). 104–134, 110 Stat. 1321, 1321–55; 75 FR
FOR FURTHER INFORMATION CONTACT:
In 1996, LSC proposed two changes to 21507, Apr. 26, 2010. To implement this
Stefanie K. Davis, Assistant General legislation, LSC created a separate rule,
clarify the meaning of ‘‘fee-generating
Counsel, Legal Services Corporation, 45 CFR part 1642. 62 FR 25862, May 12,
case.’’ First, LSC proposed ‘‘[a] technical
3333 K Street NW., Washington, DC 1997 (final rule); 61 FR 45762, Aug. 29,
numerical change’’ to the definition of
20007; (202) 295–1563 (phone), (202) 1996 (interim final rule). LSC moved
‘‘fee-generating case’’ which was
337–6519 (fax), or sdavis@lsc.gov. § 1609.6 to part 1642 and revised the
intended ‘‘to clarify that the definition
SUPPLEMENTARY INFORMATION: includes fees from three sources: an provision to require recipients to
I. Background award (1) to a client, (2) from public allocate fees from cases or matters
funds, or (3) from the opposing party.’’ supported in whole or in part with LSC
Section 1007(b)(1) of the Legal 61 FR 45765, Aug. 29, 1996. This funds to the LSC fund in the same
Services Corporation Act of 1974 proposed change resulted in comments proportion that the case or matter was
prohibits recipients from using LSC about whether LSC intended to make funded with LSC funds. Id. In a
funds ‘‘to provide legal assistance substantive changes to the definition. 62 departure from then-existing § 1609.6,
(except in accordance with guidelines FR 19398, Apr. 21, 1997. Because the LSC did not propose to dictate how
promulgated by the Corporation) with Board did not intend to change the recipients allocated remaining fees to
respect to any fee-generating case[.]’’ 42 definition and sought to avoid their non-LSC accounts. Id.
U.S.C. 2996f(b)(1). LSC implemented confusion about its intent, the Board
this provision through 45 CFR part In 2010, Congress repealed the
rejected the numerical changes to the prohibition on accepting and retaining
1609. In the preamble to part 1609, LSC proposed rule. Id.
explained that the private bar is attorneys’ fees. Sec. 533, Public Law
Nevertheless, the Board adopted a 111–117, 123 Stat. 3034, 3157. LSC
generally ‘‘eager to accept contingent fee second proposed change by adopting
cases and cases in which there may be subsequently repealed part 1642 but
language that explained what is not a
an award of attorneys’ fees to be paid by retained two provisions relevant to
‘‘fee-generating case.’’ Id. The revision
the opposing party pursuant to accounting for attorneys’ fee awards and
excluded court appointments from the
[statute].’’ 41 FR 38505, Sept. 10, 1976. accepting reimbursement of costs from a
definition because such cases, even
LSC therefore drafted part 1609 to client. 75 FR 6816, Feb. 11, 2010
where fees are paid, are considered a
‘‘insure that recipients do not use scarce (interim final rule); 75 FR 21506, Apr.
professional obligation. Id.
legal services resources when private 26, 2010 (final rule). LSC placed these
Additionally, the revision excluded
attorneys are available to provide two provisions in part 1609 at §§ 1609.4
situations where recipients undertake
effective representation and . . . assist and 1609.6, respectively. 75 FR 21508.
representation under a contract with a
eligible clients to obtain appropriate and government agency or other entity and LSC has made no changes to either
effective legal assistance.’’ 45 CFR the agency or entity pays the recipient section since then.
1609.1(a), (b). Nevertheless, LSC ‘‘because a contract payment does not LSC added rulemaking on part 1609
recognized that ‘‘there may be instances constitute fees that come from an award to its annual rulemaking agenda in June,
when no private attorney is willing to to a client or attorneys’ fees that come 2015. On July 18, 2016, the Committee
represent an individual, because the from the losing party in a case, or from voted to recommend that the Board
recovery of a fee is unlikely, the public funds.’’ Id.; see 45 CFR 1609.2(b). authorize rulemaking on part 1609. On
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potential fee is too small, or some other LSC has not made substantive changes January 26, 2017, the Committee voted
reason.’’ 41 FR 38505, Sept. 10, 1976. to the definition of ‘‘fee-generating case’’ to recommend that the Board approve
To balance these considerations, part since this revision. See 76 FR 23502, publication of this NPRM in the Federal
1609 (1) defines ‘‘fee-generating case’’ to Apr. 27, 2011. Register for notice and comment. On
prohibit recipients from accepting cases When a recipient may take a fee- January 28, 2017, the Board accepted
that a private attorney would take, and generating case, Part 1609 also the Committee’s recommendation and
(2) provides exceptions to the prescribes how recipients account for voted to approve publication of this
prohibition for when adequate attorneys’ fees received in the case. Part NPRM.

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10448 Federal Register / Vol. 82, No. 28 / Monday, February 13, 2017 / Proposed Rules

II. Proposed Changes generating cases are not prohibited by petitions be made in a staff attorney’s
part 1609. name, the staff attorney must remit the
Section 1609.1 Purpose Finally, in response to questions award to the recipient, which must then
LSC proposes to make no changes to regarding court appointments, revised allocate an award of attorneys’ fees to its
this section. § 1609.2(b) states that a court LSC grant account in proportion to the
Section 1609.2 Definition appointment pursuant to a statute or amount of LSC funds used to obtain the
court rule or practice that is equally award. LSC believes that these two
Recipients have repeatedly requested applicable to all attorneys in the changes will accommodate variations in
guidance regarding what constitutes a jurisdiction is not a fee-generating case. state and local rules governing the
‘‘fee-generating case’’ as defined in 45 CFR 1609.2. award of attorneys’ fees and help ensure
§ 1609.2(a). Questions have included that any attorneys’ fee awards supported
whether paid court appointments are Section 1609.3 General Requirements
by LSC funds are adequately credited to
‘‘fee-generating cases’’ and whether LSC proposes a technical change to LSC funds.
‘‘advice and counsel’’ or ‘‘brief services’’ the heading of § 1609.3 to more
are prohibited if the case may, during Finally, to more aptly describe the
accurately reflect the topic it addresses.
the course of subsequent extended substance of § 1609.4, LSC proposes
Section 1609.3 briefly sets forth the
representation, develop into a ‘‘fee- changing the heading to ‘‘Requesting
general prohibition on a recipient’s
generating case.’’ Recipients have also and receiving attorneys’ fees.’’
using LSC funds to provide legal
sought guidance regarding permissible assistance in a fee-generating case. The Section 1609.5 Acceptance of
sources of fees. bulk of § 1609.3, however, prescribes Reimbursement From a Client
Section 1609.2 currently provides, the circumstances and procedures under
‘‘Fee-generating case means any case or which recipients may accept fee- To create consistency in the verbs
matter which, if undertaken on behalf of generating cases. To more aptly reflect used in the headings for § 1609.4 and
an eligible client by an attorney in the substance of § 1609.3, LSC proposes § 1609.5 and more aptly describe the
private practice, reasonably may be to rename § 1609.3 ‘‘Authorized substance of the latter section, LSC
expected to result in a fee for legal representation in a fee-generating case.’’ proposes to change the heading to
services from an award to a client, from ‘‘Receiving reimbursement from a
public funds or from the opposing Section 1609.4 Accounting For and client.’’ LSC proposes no substantive
party.’’ 45 CFR 1609.2(a). A reader Use of Attorneys’ Fees changes to this section.
could interpret ‘‘award’’ as modifying LSC proposes to revise part 1609’s Section 1609.6 Recipient Policies,
only ‘‘to a client’’ and not to include an accounting requirement for receipt of Procedures and Recordkeeping
‘‘award . . . from public funds or [an attorneys’ fees. Currently § 1609.4
award] from the opposing party.’’ Thus, requires that attorneys’ fees received by LSC proposes to make no changes to
under the current definition, a recipient a recipient supported at least in part by this section.
might accept a case that may result in LSC funds be allocated to the LSC grant List of Subjects in 45 CFR Part 1609
an award from public funds, a result not account in the proportion to which the
intended by LSC. Therefore, LSC LSC funds were used. § 1609.4(a). This Administrative practice and
proposes removing ‘‘from public funds language requires this accounting only procedure, Grant programs—law, Legal
or from the opposing party’’ from the for attorneys’ fees received by the services.
definition. recipient, which could be interpreted to For the reasons set forth in the
Additionally, LSC proposes to revise mean that attorneys’ fees awarded to a preamble, the Legal Services
part 1609 to clarify that a recipient may staff attorney in his or her own name Corporation proposes to amend 45 CFR
provide brief services to an eligible need not be remitted to the recipient or part 1609 as follows:
client despite the possibility that the be subject to the accounting
case may result in fees otherwise requirement. PART 1609—FEE-GENERATING
restricted by part 1609. In AO–2015– To clarify that attorneys’ fee awards CASES
002, LSC considered whether a recipient received by either the recipient or a
may provide ‘‘advice and counsel’’ or recipient’s staff attorney are subject to ■ 1. The authority citation for part 1609
‘‘limited services’’ (as defined in 45 CFR the accounting requirement, LSC continues to read as follows:
1611.2(a) and (e)) to an eligible client proposes the following revisions to Authority: 42 U.S.C. 2996g(e).
where the matter might constitute a fee- § 1609.4. First, LSC proposes to require
generating case if extended services recipients to file any petitions for ■ 2. Revise paragraph (a) and add
were provided. Based on the language of attorneys’ fees in the name of the paragraph (b)(3) to § 1609.2 to read as
§ 1609.3, which prohibits recipients recipient and not in the name of any follows:
from using LSC funds to provide staff attorney. To the extent a § 1609.2 Definitions.
assistance in ‘‘every situation in which jurisdiction may allow an attorneys’ fee
an attorney reasonably may expect to petition in the recipient’s name rather (a) Fee-generating case means any
receive a fee[,]’’ LSC concluded an than a staff attorney, this change would case or matter which, if undertaken on
‘‘attorney’s reasonable expectation of help ensure that the court would award behalf of an eligible client by an
such fees would not typically arise until attorneys’ fees to the organization and attorney in private practice, reasonably
after . . . initial advice or brief services not to an individual staff attorney. LSC may be expected to result in a fee for
jstallworth on DSK7TPTVN1PROD with PROPOSALS

was under way or had been completed.’’ proposes placing this addition as legal services from an award to a client.
AO–2015–002, June 17, 2015. LSC § 1609.4(a), and redesignating the (b) * * *
proposes incorporating this clarification current paragraphs (a) and (b) of this (3) A recipient provides only advice
into part 1609 by adding a separate section as paragraphs (b) and (c), and counsel or limited services, as those
paragraph to § 1609.2(b). The new respectively. terms are defined in 45 CFR 1611.1(a)
paragraph would explain that ‘‘advice Second, LSC proposes to state and (e), to an eligible client.
and counsel’’ or ‘‘limited services’’ in explicitly that, in the event a ■ 3. Revise the heading of § 1609.3 to
matters that may later constitute fee- jurisdiction requires that attorneys’ fee read as follows:

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Federal Register / Vol. 82, No. 28 / Monday, February 13, 2017 / Proposed Rules 10449

§ 1609.3 Authorized representation in a SUMMARY: On December 6, 2016, FRA DC 20590 (telephone: 202–493–6185); or
fee-generating case. published an NPRM proposing to Mr. Michael Hunter, Trial Attorney,
* * * * * amend its regulations on passenger Office of Chief Counsel, Federal
■ 4. Revise § 1609.4 to read as follows: equipment safety standards. By this Railroad Administration, 1200 New
document, FRA is reopening the Jersey Avenue SE., Mail Stop 10,
§ 1609.4 Requesting and receiving
attorneys’ fees. NPRM’s comment period, which closed Washington, DC 20590 (telephone: 202–
February 6, 2017. 493–0368).
(a) Any petition seeking attorneys’
fees for representation supported in DATES: The comment period for the
SUPPLEMENTARY INFORMATION: The
whole or in part with funds provided by NPRM, (81 FR 88006, Dec. 6, 2016), is
NPRM addresses three main subject
LSC, shall, to the extent permitted by reopened. Written comments must be
areas: (1) Tier III trainset safety
law, be filed in the name of the received by March 21, 2017. Comments
standards; (2) alternative
recipient. received after that date will be
crashworthiness and occupant
(b) Attorneys’ fees received by a considered to the extent practicable.
protection performance requirements for
recipient or an employee of a recipient ADDRESSES: Comments: Comments
Tier I passenger equipment; and (3) the
for representation supported in whole or related to Docket No. FRA–2013–0060 maximum authorized speed for Tier II
in part with funds provided by LSC may be submitted by any of the passenger equipment.
shall be allocated to the fund in which following methods:
the recipient’s LSC grant is recorded in • Web site: The Federal eRulemaking In a December 12, 2016 letter, the
the same proportion that the amount of Portal, www.regulations.gov. Follow the American Public Transportation
LSC funds expended bears to the total Web site’s online instructions for Association (APTA) requested a 30-day
amount expended by the recipient to submitting comments. extension of the NPRM’s comment
support the representation. • Fax: 202–493–2251. period. APTA stated it needs additional
(c) Attorneys’ fees received shall be • Mail: Docket Management Facility, time to thoroughly review the NPRM
recorded during the accounting period U.S. Department of Transportation, 1200 and review and consolidate comments
in which the money from the fee award New Jersey Avenue SE., Room W12– on the NPRM from its members and
is actually received by the recipient and 140, Washington, DC 20590. affiliates.
may be expended for any purpose • Hand Delivery: Docket Management As the comment period for the NPRM
permitted by the LSC Act, regulations Facility, U.S. Department of closed on February 6, 2017, FRA is
and other law applicable at the time the Transportation, 1200 New Jersey reopening the comment period
money is received. Avenue SE., Room W12–140, between 9 consistent with guidance issued January
■ 5. Revise the heading of § 1609.5 to a.m. and 5 p.m., Monday through 20, 2017, intended to provide the new
read as follows: Friday, except Federal holidays. Administration an adequate opportunity
Instructions: All submissions must to review new and pending regulations.
§ 1609.5 Receiving reimbursement from a include the agency name, docket name,
client. Written comments must be received by
and docket number or Regulatory March 21, 2017. Comments received
* * * * * Identification Number (RIN) for this after that date will be considered to the
Dated: February 6, 2017. rulemaking (2130–AC46). Note that all extent practicable.
Stefanie K. Davis, comments received will be posted
Assistant General Counsel. without change to http:// Privacy Act
[FR Doc. 2017–02717 Filed 2–10–17; 8:45 am]
www.regulations.gov, including any
personal information provided. Please Under 5 U.S.C. 553(c), DOT solicits
BILLING CODE 7050–01–P
see the Privacy Act heading in the comments from the public to better
SUPPLEMENTARY INFORMATION section of inform its rulemaking process. DOT
this document for Privacy Act posts comments, without edit, including
DEPARTMENT OF TRANSPORTATION any personal information the
information related to any submitted
comments or materials. commenter provides, to
Federal Railroad Administration
Docket: To access the docket to read www.regulations.gov, as described in
background documents or comments the system of records notice (DOT/ALL–
49 CFR Parts 236 and 238
received, go to http:// 14 FDMS), available at www.dot.gov/
[Docket No. FRA–2013–0060; Notice No. 2] www.regulations.gov at any time or visit privacy.
RIN 2130–AC46 the Docket Management Facility, U.S. Authority: 49 U.S.C. 20103, 20107, 20133,
Department of Transportation, 1200 20141, 20302–20303, 20306, 20701–20702,
Passenger Equipment Safety New Jersey Avenue SE., Room W12– 21301–21302, 21304; 28 U.S.C. 2461, note;
Standards; Standards for Alternative 140, between 9 a.m. and 5 p.m., Monday and 49 CFR 1.89.
Compliance and High-Speed Trainsets through Friday, except Federal holidays.
Issued in Washington, DC, on February 8,
AGENCY: Federal Railroad FOR FURTHER INFORMATION CONTACT: Mr. 2017.
Administration (FRA), Department of Devin Rouse, Mechanical Engineer,
Patrick Warren,
Transportation (DOT). Passenger Rail Division, Office of
Railroad Safety, Federal Railroad Executive Director.
ACTION: Notice of proposed rulemaking [FR Doc. 2017–02877 Filed 2–10–17; 8:45 am]
Administration, 1200 New Jersey
jstallworth on DSK7TPTVN1PROD with PROPOSALS

(NPRM); reopening of comment period.
Avenue SE., Mail Stop 25, Washington, BILLING CODE 4910–06–P

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Document Created: 2017-02-11 00:59:28
Document Modified: 2017-02-11 00:59:28
Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Proposed Rules
Action		Notice of proposed rulemaking.
Dates		Comments must be submitted by March 15, 2017.
Contact		Stefanie K. Davis, Assistant General Counsel, Legal Services Corporation, 3333 K Street NW., Washington, DC 20007; (202) 295-1563 (phone), (202) 337-6519 (fax), or [email protected]
FR Citation		82 FR 10446
CFR Associated		Administrative Practice and Procedure; Grant Programs-Law and Legal Services