B-205651 L/M, AUG 24, 1982

B-205651 L/M, AUG 24, 1982

DIGEST: A MEMBER OF CONGRESS REQUESTED GAO TO DETERMINE THE LIMITS OF AUTHORITY OF LEGAL SERVICES STAFF ATTORNEYS TO REPRESENT CLIENTS. IN ENACTING THE LEGAL SERVICES CORPORATION ACT OF 1974, CONGRESS INTENDED TO GRANT LSC STAFF ATTORNEYS THE MAXIMUM DEGREE OF AUTHORITY AND INDEPENDENCE IN PROVIDING LEGAL ASSISTANCE IN ORDER TO INSULATE THEM FROM POLITICAL PRESSURE. ON THE BASIS OF THE FACTUAL MATERIAL PRESENTED BY THE MEMBER, WE CONCLUDED THAT THE LSC STAFF ATTORNEY INVOLVED IN THAT CASE DID NOT VIOLATE ANY LAWS OR REGULATIONS.

JACK EDWARDS, HOUSE OF REPRESENTATIVES:

THIS IS IN RESPONSE TO YOUR LETTER OF NOVEMBER 24, 1981, REQUESTING AN OPINION FROM THIS OFFICE OF THE LEGALITY AND PROPRIETY OF CERTAIN ACTIVITIES OF A LEGAL SERVICES CORPORATION OF ALABAMA (LSCA) STAFF ATTORNEY. THE LSCA IS A GRANT RECIPIENT OF THE LEGAL SERVICES CORPORATION (LSC). WE HAVE REVIEWED THE CORRESPONDENCE YOU PROVIDED US WITH YOUR LETTER AND HAVE CONCLUDED THAT NONE OF THE LSCA STAFF ATTORNEY'S ACTIVITIES WERE INCONSISTENT WITH, OR IN VIOLATION OF, THE LEGAL SERVICES CORPORATION ACT OF 1974, AS AMENDED, 42 U.S.C. SEC. 2996 ET SEQ.

THIS CASE INVOLVES A CONFRONTATION BETWEEN THE MAYOR OF VREDENBURGH, ALABAMA AND MR. ALLEN BARKIN, STAFF ATTORNEY WITH LSCA. THE CORRESPONDENCE SUBMITTED WITH YOUR REQUEST RELATES THAT IN MAY 1981, ONE OF THE CITIZENS OF VREDENBURGH CONTACTED A REPRESENTATIVE OF LSCA ON BEHALF OF AN ORGANIZATION KNOWN AS THE VREDENBURGH CIVIC ASSOCIATION AND REQUESTED ASSISTANCE IN OBTAINING A SEWER SYSTEM FOR THE TOWN. LSCA DETERMINED THAT THE CLIENT WAS ELIGIBLE FOR ITS SERVICES AND ASSIGNED MR. ALLEN BARKIN, AN ATTORNEY IN THE BAY MINETTE LSCA OFFICE, TO REPRESENT THE ASSOCIATION.

THE ASSOCIATION WAS PRIMARILY INTERESTED IN OBTAINING ASSISTANCE IN THE CONSTRUCTION OF A SEWER SYSTEM FOR THE TOWN. MR. BARKIN WAS INFORMED THAT THE MAYOR HAD PREVIOUSLY APPLIED FOR SUCH ASSISTANCE BUT THAT THE REQUEST HAD BEEN DENIED. MR. BARKIN ASSUMED THAT THE TOWN WAS UNINCORPORATED AND BEGAN MEETING WITH FEDERAL AGENCIES TO OBTAIN FINANCIAL ASSISTANCE ON BEHALF OF THE TOWN. DURING THE COURSE OF THESE MEETINGS, HE DISCOVERED THAT THE TOWN HAD BEEN INCORPORATED SINCE 1913 AND THAT THE TOWN OFFICIALS WOULD HAVE TO APPLY FOR ANY FEDERAL ASSISTANCE.

LSCA SPONSORED A COMMUNITY EDUCATION EVENT IN VREDENBURGH IN JULY 1981, LED BY 7 LSCA OFFICIALS AND OFFICIALS OF THE FEDERATION OF SOUTHERN COOPERATIVES, THE ALABAMA DEMOCRATIC CONFERENCE AND THE SHERIFF OF WILCOX COUNTY. OVER 100 RESIDENTS ATTENDED AND AS A RESULT OF THE MEETING THE ASSOCIATION DETERMINED THERE WERE THREE PRIORITY ISSUES: (1) ACCESS TO THE POLITICAL SYSTEM, (2) A SEWER SYSTEM, AND (3) JOBS.

MR. BARKIN BEGAN AN EXCHANGE OF LETTERS WITH THE MAYOR CONCERNING HOW HIS CLIENTS COULD PARTICIPATE IN TOWN COUNCIL MEETINGS. IN A LETTER DATED SEPTEMBER 16, 1981, MR. BARKIN STATED THAT " *** BLACK PEOPLE MAKE UP APPROXIMATELY 80 PERCENT OF THE REGISTERED VOTERS IN VREDENBURGH. WOULD NOT SURPRISE ME IF A BLACK PERSON WERE NOMINATED FOR ONE OR MORE OF THE MUNICIPAL OFFICES IN THE NEXT ELECTION. IF THEY ARE NOMINATED, I BELIEVE THEY COULD WIN." THE MAYOR CONSTRUED THIS STATEMENT AS A THREAT AND, THEREFORE, AS AN INAPPROPRIATE ACT ON MR. BARKIN'S PART.

YOU INDICATE THAT YOU DO NOT WISH US TO INVESTIGATE THE ACTIVITIES OF LSCA IN THIS MATTER. INSTEAD, YOU HAVE REQUESTED OUR VIEWS ON THREE GENERAL QUESTIONS AS FOLLOWS:

QUESTION 1. WHAT IS THE LEGAL SERVICES CORPORATION ALLOWED TO DO LEGALLY?

ANSWER. THE LEGAL SERVICES CORPORATION ACT OF 1974 (42 U.S.C. SEC. 2996 ET SEQ.) AND ITS LEGISLATIVE HISTORY INDICATE THAT CONGRESS INTENDED THAT THE LEGAL SERVICES CORPORATION SERVICES CORPORATION AND ITS RECIPIENTS WOULD BE INDEPENDENT FROM THE FEDERAL GOVERNMENT AND POLITICAL PRESSURES. CONGRESS ALSO INTENDED THAT THE ATTORNEYS IN THE PROGRAM WOULD HAVE FULL FREEDOM TO PROTECT THE BEST INTEREST OF THEIR CLIENTS IN KEEPING WITH THE CANONS OF ETHICS AND THE HIGH STANDARDS OF THE LEGAL PROFESSION.

CONGRESS RECOGNIZED THAT MANY CLIENTS WOULD REQUIRE REPRESENTATION THAT PLACED THE ATTORNEY IN DIRECT CONFLICT WITH LOCAL, AND STATE GOVERNMENTS AND FELT THAT THE ATTORNEY SHOULD BE IMMUNE FROM POLITICAL PRESSURES THAT MIGHT RESULT FROM HIS INVOLVEMENT IN SOCIAL ISSUES. SEE H.REP. 93-247, 93D CONG. 1ST SESS. 1. ACCORDINGLY, CONGRESS INTENDED TO PROVIDE LSC ATTORNEYS WITH BROAD AUTHORITY TO REPRESENT CLIENTS' INTERESTS WITHOUT FEAR OF REPRISALS.

THUS, LSC ATTORNEYS, EXCEPT FOR A FEW RESTRICTIONS DISCUSSED HEREAFTER, MAY EMPLOY ALL THE TACTICS AND PROCEDURES UTILIZED BY ATTORNEYS OF THE PRIVATE BAR IN REPRESENTING PAYING CLIENTS.

QUESTION 2. ARE THERE LIMITS ON LSC ATTORNEYS IN REPRESENTING THEIR CLIENTS?

ANSWER. ALTHOUGH LSC ATTORNEYS HAVE FULL FREEDOM TO PROTECT THE BEST INTERESTS OF THEIR CLIENTS, THEIR METHODS MUST BE IN KEEPING WITH THE CODE OF PROFESSIONAL RESPONSIBILITY, THE CANONS OF ETHICS, AND THE HIGH STANDARDS OF THE LEGAL PROFESSION. SEE 42 U.S.C. SEC. 2996(6) AND 42 U.S.C. SEC. 2996FA)(10). LSC ATTORNEYS ARE ALSO REQUIRED TO CONFORM TO THE LIMITATIONS OUTLINED IN 42 U.S.C. SEC. 2996FB), WHICH RESTRICTS THE USE OF FEDERAL FUNDS TO REPRESENT CLIENTS IN FEE GENERATING CASES, OR WITH RESPECT TO ANY CRIMINAL PROCEEDING, OR A CIVIL ACTION THAT STEMS FROM A CRIMINAL CONVICTION. THESE ATTORNEYS IN THEIR OFFICIAL CAPACITIES MAY NOT INVOLVE THEMSELVES IN ANY POLITICAL ACTIVITY OR PROVIDE ASSISTANCE TO VOTERS IN CONNECTION WITH AN ELECTION OR ENGAGE IN VOTER REGISTRATION ACTIVITY. LSC ATTORNEYS MAY NOT CONDUCT TRAINING PROGRAMS FOR THE PURPOSE OF ADVOCATING A PARTICULAR PUBLIC POLICY OR ENCOURAGING POLITICAL OR LABOR ACTIVITIES, BOYCOTTS, ETC. THEY MAY NOT FORM OR ORGANIZE ASSOCIATIONS OR SIMILAR ENTITIES. THEY MAY NOT INITIATE LITIGATION TO PROCURE A NONTHERAPEUTIC ABOTION OR PROVIDE LEGAL ASSISTANCE WITH RESPECT TO CERTAIN SCHOOL DESEGREGATION CASES. FINALLY, THEY MAY NOT PROVIDE LEGAL ASSISTANCE IN A CASE ARISING OUT OF A VIOLATION OF THE MILITARY SELECTIVE SERVICE ACT OR OF DESERTION FROM THE ARMED FORCES OF THE UNITED STATES. NONE OF THE ABOVE RESTRICTIONS APPEAR TO BE APPLICABLE TO MR. BARKIN'S REPRESENTATION OF THE VREDENBURGH CIVIC ASSOCIATION.

QUESTION 3. WAS THE LSCA'S REPRESENTATION OF THE VREDENBURGH CIVIC ASSOCIATION PROPER?

ANSWER. ON THE BASIS OF THE BROAD AUTHORITY AND INDEPENDENCE TO REPRESENT CLIENTS THAT LSCA ATTORNEYS ARE PROVIDED UNDER THE LEGAL SERVICES CORPORATION ACT OF 1974 AND IMPLEMENTING REGULATIONS CONTAINED IN 45 CFR CHAPTER 16, WE ARE UNABLE TO CONCLUDE THAT ANY OF THE ACTIVITIES WHICH LED TO YOUR INQUIRY VIOLATED ANY LAW OR REGULATIONS. FOR EXAMPLE, THE HOLDING OF A MEETING FOR THE PURPOSE OF DEVELOPING "PRIORITY ISSUES" AND THE ATTEMPT TO SECURE FEDERAL ASSISTANCE APPEAR TO BE LEGITIMATE CLIENT REPRESENTATION EFFORTS. THE OTHER ACTIONS COMPLAINED OF ALSO DO NOT APPEAR, ON THE BASIS OF THE FACTUAL SUMMARIES CONTAINED IN THE CORRESPONDENCE SUBMITTED WITH YOUR LETTER, TO HAVE BEEN IN VIOLATION OF ANY OF THE RESTRICTIONS ON ALLOWABLE LSC ACTIVITIES, SUMMARIZED ABOVE. THAT IS NOT TO SAY THAT WE ENDORSE THE METHODS AND PROCEDURES EMPLOYED IN THIS CASE. WE DO NOT CONSTRUE MR. BARKIN'S REMARKS IN HIS SEPTEMBER 16, 1981, LETTER TO THE MAYOR AS CONTAINING A THREAT, WHICH THE MAYOR BELIEVED WAS IMPLIED, OR AS VIOLATING LSC RESTRICTIONS. IN THIS CONNECTION, UNDER 42 U.S.C. SEC. 2996FA)(6) LSC ATTORNEYS MAY NOT PERSONALLY INVOLVE THEMSELVES IN POLITICAL ACTIVITIES, BUT MAY PROVIDE LEGAL ADVICE AND REPRESENTATION TO POTENTIAL CANDIDATES. SEE 42 U.S.C. SEC. 2996FA)(6)(B). OUR REVIEW OF THE CORRESPONDENCE THAT YOU PROVIDED, INCLUDING THE QUOTED REMARKS FROM THE SEPTEMBER 16, 1981 LETTER, DOES NOT DEMONSTRATE THAT MR. BARKIN WAS PERSONALLY INVOLVED IN POLITICAL ACTIVITIES. WHILE HE MAY HAVE BEEN INVOLVED IN ADVISING MEMBERS OF THE ASSOCIATION, AS HIS CLIENTS, CONCERNING THE LEGAL REQUIREMENTS FOR RUNNING FOR OFFICE, HE WAS FREE TO DO THIS UNDER THE LAW AND REGULATIONS.

IN SUMMARY, CONGRESS IN ENACTING THE LEGAL SERVICES CORPORATION ACT OF 1974 INTENDED TO GRANT STAFF ATTORNEYS OF LSC RECIPIENTS THE MAXIMUM DEGREE OF AUTHORITY AND INDEPENDENCE IN PROVIDING LEGAL ASSISTANCE IN ORDER TO INSULATE THEM FROM POLITICAL PRESSURE. IN THE CASE AT HAND, WHILE LSCA'S STAFF ATTORNEY MAY NOT HAVE REPRESENTED HIS CLIENTS IN THE MOST PROPITIOUS AND PRUDENT MANNER, IN OUR OPINION HE AND THE LSCA DID NOT VIOLATE ANY LAWS OR REGULATIONS.