Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Proposed Rules 73303 

(A) Subsections (c)(3), (d)(1), and 

(d)(2)—Exemption (k)(2). Records in this 

system of records may contain 

investigatory material compiled for law 

enforcement purposes other than 

material within the scope of 5 U.S.C. 

552a(j)(2). Application of exemption 

(k)(2) may be necessary because access 

to, amendment of, or release of the 

accounting of disclosures of such 

records could: inform the record subject 

of an investigation of the existence, 

nature, or scope of an actual or potential 

law enforcement or disciplinary 

investigation, and thereby seriously 

impede law enforcement efforts by 

permitting the record subject and other 

persons to whom the subject might 

disclose the records or accounting of 

records to avoid criminal penalties, civil 

remedies, or disciplinary measures; 

interfere with a civil or administrative 

action or investigation by allowing the 

subject to tamper with witnesses or 

evidence, and to avoid detection or 

apprehension, which may undermine 

the entire investigatory process; or 

reveal confidential sources who might 

not have otherwise come forward to 

assist in an investigation and thereby 

hinder DoD’s ability to obtain 

information from future confidential 

sources, and result in an unwarranted 

invasion of the privacy of others. 

(B) Subsection (d)(3), and (d)(4). 

These subsections are inapplicable to 

the extent that an exemption is being 

claimed from subsections (d)(1) and (2). 

Accordingly, exemptions from 

subsections (d)(3), and (d)(4) areclaimed 

pursuant to (k)(2). 

(C) Subsection (e)(1). In the collection 

of information for investigatory 

purposes it is not always possible to 

conclusively determine the relevance 

and necessity of particular information 

in the early stages of the investigation or 

adjudication. In some instances, it will 

be only after the collected information 

is evaluated in light of other information 

that its relevance and necessity for 

effective investigation and adjudication 

can be assessed. Collection of such 

information permits more informed 

decision-making by the Department 

when making required disciplinary 

determinations. Accordingly, 

application of exemption (k)(2) may be 

necessary. 

(D) Subsection (e)(4)(G) and (H). 

These subsections are inapplicable to 

the extent exemption is claimed from 

subsections (d)(1) and (2). 

(E) Subsection (e)(4)(I). To the extent 

that this provision is construed to 

require more detailed disclosure than 

the broad, generic information currently 

published in the system notice, an 

exemption from this provision is 

necessary to protect the confidentiality 

of sources of information and to protect 

the privacy and physical safety of 

witnesses and informants. Accordingly, 

application of exemption (k)(2) may be 

necessary. 

(F) Subsection (f). The agency’s rules 

are inapplicable to those portions of the 

system that are exempt. Accordingly, 

application of exemption (k)(2) may be 

necessary. 

(iv) Exempt records from other 

systems. In the course of carrying out 

the overall purpose for this system, 

exempt records from other systems of 

records may in turn become part of the 

records maintained in this system. To 

the extent that copies of exempt records 

from those other systems of records are 

maintained in this system, the DoD 

claims the same exemptions for the 

records from those other systems that 

are entered into this system, as claimed 

for the prior system(s) of which they are 

a part, provided the reason for the 

exemption remains valid and necessary. 

* * * * * 

Dated: October 17, 2023. 

Aaron T. Siegel, 

Alternate OSD Federal Register Liaison 

Officer, Department of Defense. 

[FR Doc. 2023–23299 Filed 10–24–23; 8:45 am] 

BILLING CODE 6001–FR–P 

LEGAL SERVICES CORPORATION 

45 CFR Part 1638 

Restriction on Solicitation 

AGENCY: Legal Services Corporation. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: This proposed rule revises the 

Legal Services Corporation (LSC or 

Corporation) regulation prohibiting 

solicitation of clients. LSC proposes to 

add definitions for ‘‘communicate’’ and 

‘‘communication,’’ revise the existing 

text to make language more active, and 

clarify how recipients may interact with 

client-eligible individuals. The main 

goal of these revisions is to formalize 

the interpretations that the Office of 

Legal Affairs has issued over the past 

several years, making clear that 

recipients may inform client eligible 

individuals about their rights and 

responsibilities and provide them with 

information about the recipient’s intake 

process, as well as how recipients may 

relay that information without violating 

either LSC’s Fiscal Year 1996 

appropriations statute or LSC’s 

regulations. 

DATES: Comments must be submitted by 

December 26, 2023. 

ADDRESSES: You may submit comments 

by any of the following methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. Follow the 

instructions for submitting comments. 

• Email: lscrulemaking@lsc.gov. 

Include ‘‘Comments on Revisions to Part 

1638’’ in the subject line of the message. 

• Mail: Elijah Johnson, Assistant 

General Counsel, Legal Services 

Corporation, 3333 K Street NW, 

Washington, DC 20007, ATTN: Part 

1638 Rulemaking. 

• Hand Delivery/Courier: Elijah 

Johnson, Assistant General Counsel, 

Legal Services Corporation, 3333 K 

Street NW, Washington, DC 20007, 

ATTN: Part 1638 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: 

Elijah Johnson, Assistant General 

Counsel, Legal Services Corporation, 

3333 K Street NW, Washington, DC 

20007; (202) 295–1638 (phone), or 

johnsone@lsc.gov. 

SUPPLEMENTARY INFORMATION: 

I. Background 

On April 26, 1996, Congress passed 

the appropriations act for Fiscal Year 

1996. Public Law 104–134, 110 Stat. 

1321. Through this statute, Congress 

enacted a series of restrictions 

applicable to LSC grant recipients’ 

activities. One of the restrictions was 

section 504(a)(18), which states that 

grant recipients 

will not accept employment resulting from 

in-person unsolicited advice to a nonattorney 

that such nonattorney should obtain counsel 

or take legal action, and will not refer such 

nonattorney to another person or entity or an 

employee of the person or entity, that is 

receiving financial assistance provided by the 

Corporation[.] 

Public Law 104–134, 110 Stat. 1321, 

1321–56. 

On May 19, 1996, the Operations and 

Regulations Committee of the LSC 

Board requested LSC staff to prepare an 

interim rule to implement section 

504(a)(18), and in April 1997, LSC 

promulgated part 1638. Consistent with 

section 504(a)(18), LSC’s rule prohibited 

a grant recipient from representing an 

individual who had not sought legal 

advice from the grant recipient but was 

advised to seek legal representation or 

take legal action by the grant recipient. 

Part 1638 also prohibits grant recipients 

who have given in-person unsolicited 

advice to an individual from referring 

the individual receiving the advice to 


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73304 Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Proposed Rules 

another LSC grant recipient. Id. Finally, 

LSC included language in part 1638 

stating that providing legal information, 

including information about the 

availability of counsel and a grant 

recipient’s intake procedures, are 

permissible activities. 45 CFR 1638.4(a). 

The broad definition of ‘‘in-person’’ 

may restrict more conduct than 

Congress intended when it enacted the 

prohibition on client solicitation. 

Section 504(a)(18) applies only to ‘‘inperson advice.’’ It does not mention 

‘‘personal encounters via other means of 

communication,’’ which part 1638 does. 

45 CFR 1638.2(a). Congress appears to 

have based section 504(a)(18) on ABA 

Model Rule 7.3, which generally 

prohibits ‘‘in-person, live telephone, or 

real-time electronic communications.’’ 

Model Rule 7.3 also prohibits 

solicitation through ‘‘written, recorded 

or electronic communications,’’ but only 

when such communications are abusive. 

Thus, part 1638’s inclusion of ‘‘a 

personal letter’’ in the definition of ‘‘inperson’’ goes beyond the statutory 

language of section 504(a)(18) and the 

use of the same term by ABA Model 

Rule 7.3. The ABA updated Rule 7.3 in 

2013. The changes, among other things, 

added electronic communications and 

reinforced the distinction between inperson contacts and written contacts (an 

electronic contact is in the same 

category as an ‘‘in-person’’ contact only 

when it is a ‘‘real-time electronic 

contact.’’). 

The regulation’s existing language has 

caused grantees to question whether 

they can provide information about the 

individuals’ legal rights and the 

availability of legal assistance through 

texts, phone calls, and in-person 

contacts at court clinics. Over the years, 

OLA has received multiple inquiries 

from grant recipients and other 

stakeholders about what proposed 

outreach activities are permissible 

under part 1638. Some of the examples 

include: 

• sending text messages explaining 

defendants’ rights to unrepresented 

individuals in eviction cases; 

• informing individuals of the 

availability of legal assistance via 

mailings and text messages; and 

• individuals approaching grant 

recipient attorneys at court-based selfhelp clinics. 

In July 2003, OLA published an 

advisory opinion answering a question 

from the Northwest Justice Project 

(‘‘NJP’’). NJP asked whether they could 

hand out informational brochures to 

individuals in the courthouse as part of 

their administration of the Housing 

Justice Program (‘‘HJP’’). The HJP 

provided same-day advice and 

representation from volunteer attorneys 

to LSC-eligible clients in eviction 

proceedings in court. The previous 

coordinator of the HJP, a non-LSCfunded organization, contacted 

prospective clients at the courthouse, 

advised them of the availability of 

services, asked if they would like to 

discuss their case with a lawyer, and 

represented some the same day. Upon 

assuming operation of the program, NJP 

stopped engaging in direct contact and 

submitted its inquiry to LSC. NJP 

contacted LSC because it was concerned 

that the lack of direct client engagement 

had led to a decline in the usage of HJP 

services. LSC confirmed that under part 

1638, it would be impermissible for NJP 

to communicate with prospective 

clients at the courthouse to advise them 

of the availability of legal services and 

ask individuals if they wanted to 

discuss their case with a lawyer and 

then accept those individuals as clients. 

EX–2003–1011, June 9, 2003. This 

advisory opinion remained LSC’s 

position until 2016. 

In 2016, OLA received a question 

from a law professor who was 

researching methods for increasing the 

likelihood that individuals living in 

poverty would engage with the legal 

system, including by seeking free legal 

services. The study proposed to test the 

effectiveness of different types of 

mailings sent to defendants in debt 

collection cases. The professor asked 

OLA whether part 1638 prohibits a grant 

recipient from representing individuals 

to whom the grant recipient has mailed 

information regarding their rights and 

identifying the types of legal services 

provided by the grant recipient. AO 

2016–001. OLA opined that a mailing 

from an LSC grant recipient would 

violate part 1638 if it provided (1) 

‘‘unsolicited advice’’ and (2) constituted 

a ‘‘personal letter.’’ Id. OLA also stated 

that a mailing that contains only 

‘‘information regarding legal rights and 

responsibilities or . . . information 

regarding the recipient’s services and 

intake procedures’’ does not constitute 

‘‘unsolicited advice.’’ Further, a mailing 

does not constitute a ‘‘personal letter’’ if 

the letter provides only generic 

information that is not tailored to the 

individual receiving the mailing and it 

does not include specific facts related to 

the individual’s legal issues. Id. OLA 

concluded that a mailing that contains 

unsolicited advice that is not tailored to 

the individual receiving the mailing is 

not considered a ‘‘personal letter’’ under 

§ 1638.2(a). Id. 

In 2020, OLA issued an advisory 

opinion about part 1638 that addressed 

a question involving the permissibility 

of a grant recipient representing 

individuals that it had either (1) 

contacted over the telephone or via text 

message; or (2) initiated contact with 

through the grant recipient’s ongoing 

presence in the courthouse. Regarding 

in-person contact in courthouses, OLA 

confirmed that part 1638 does not 

prohibit a grant recipient from initiating 

contact with individuals if the grant 

recipient is providing ‘‘information 

regarding legal rights and 

responsibilities’’ or providing 

information about the grant recipient’s 

intake process while ‘‘. . . 

maintain[ing] an ongoing presence in a 

courthouse to provide advice at the 

invitation of the court[.]’’ AO 2020–004. 

Additionally, part 1638 does not 

prohibit grant recipients from 

representing an individual that the grant 

recipient initiated contact with over the 

telephone or via text message as long as 

the communication contains only 

generic information that is not tailored 

to the individual or the specific facts of 

the individual’s legal issues. Id. 

LSC issued its most recent guidance 

on part 1638 in 2022. In Program Letter 

22–1, LSC advised that grant recipients 

could send text messages to defendants 

(tenants) in landlord/tenant cases to 

notify them that an eviction case has 

been filed against them; to let them 

know of any upcoming court 

appearances; and to inform them of the 

availability of counsel. Program Letter 

22–1. The program letter cited previous 

guidance from OLA regarding 

unsolicited advice via text message and 

mail. 

LSC believes regulatory action is 

justified at this time for two reasons. 

First, OLA has been applying a nearly 

thirty-year-old rule concerning 

communications to new technologies 

and outreach strategies developed since 

part 1638 was published. Second, 

regulatory action is justified because 

LSC has continued to receive questions 

from grantees and other stakeholders 

about whether certain proposed 

outreach activities are permissible 

under part 1638. These questions have 

become more compelling as 

governments began lifting moratoria on 

filing evictions and pursuing debt 

collection cases that they had put into 

place near the beginning of the COVID– 

19 pandemic. Rulemaking to make part 

1638 more consistent with the language 

of section 504(a)(18) has become more 

critical to helping grantees inform 

people living in poverty who are facing 

eviction or potentially significant 

financial consequences about their 

rights and the availability of attorneys to 

assist them. 

On July 25, 2023, the Operations and 

Regulations Committee voted to 


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Federal Register / Vol. 88, No. 205 / Wednesday, October 25, 2023 / Proposed Rules 73305 

recommend that the Board authorize 

rulemaking on part 1638. On July 27, 

2023, the Board authorized LSC to begin 

rulemaking. On October 16, 2023, the 

Committee voted to recommend that the 

Board authorize publication of this 

NPRM in the Federal Register for notice 

and comment. On October 17, 2023, the 

Board accepted the Committee’s 

recommendation and voted to approve 

publication of this NPRM. 

II. Proposed Changes 

§ 1638.1 Purpose 

LSC proposes to make no changes to 

this section. 

§ 1638.2 Definitions 

LSC proposes to add a definition for 

the terms communicate and 

communication that pertains to mailed, 

emailed, and texted messages, as 

opposed to merely in-person 

engagements. With additional 

technology since the inception of this 

prohibition, this change will provide 

greater flexibility and clarity around the 

methods of communication that are 

permitted. This is not intended to 

require recipients to use various 

methods to reach client-eligible 

individuals; rather it clarifies which 

methods are permissible. 

LSC also proposes to amend the 

definition of the term in-person to 

include virtual engagements such as 

clinics conducted via Zoom or other 

videoconferencing software. LSC 

proposes to make this change to reflect 

the transition, hastened by the COVID– 

19 pandemic, to the provision of legal 

services through virtual means in 

addition to traditional in-person 

engagements. 

Finally, to account for adding a new 

definition, LSC proposes to redesignate 

existing paragraph (b), defining the term 

unsolicited advice, as paragraph (c). 

§ 1638.3 Prohibition 

LSC proposes to edit the text to be 

active as opposed to passive. For 

example, ‘‘shall not represent’’ would 

replace ‘‘are prohibited from 

representing.’’ 

§ 1638.4 Permissible Activities 

LSC proposes to edit the text to be 

active as opposed to passive. 

Additionally, LSC proposes to revise 

§ 1638.4(a) to permit communication 

and in-person engagement about 

individuals’ legal rights and 

responsibilities and grantees’ intake 

procedures. LSC believes that the 

proposed language should be clearer 

that grantees are permitted to send 

individuals information about rights 

and responsibilities that could lend 

itself to individuals filing complaints, 

either pro se or with the assistance of 

counsel. This instance may arise in the 

context of housing cases; for example, in 

housing habitability and tenant building 

purchase cases. A grantee may discover 

that there is a building with numerous 

safety issues and communicate with the 

tenants about the warranty of 

habitability, their options for getting the 

landlord to make repairs, including 

affirmative litigation, and the grantee’s 

intake process. After receiving such 

legal information, some tenants could 

conceivably apply for legal assistance to 

help them pursue legal action to force 

repairs. This approach is consistent 

with the text of section 504(a)(18) of 

LSC’s 1996 appropriation statute, which 

speaks in general terms about prohibited 

solicitation. It is critical to closing the 

justice gap that grantees are aware that 

they can advise their client-eligible 

communities about issues for which 

affirmative litigation may be an 

appropriate solution. 

Further, LSC proposes to add 

paragraphs (c) and (e) to incorporate 

OLA’s interpretations of existing part 

1638 and the guidance LSC provided in 

PL 22–1. Finally, LSC proposes to 

redesignate existing paragraph (c) as 

paragraph (d) and to revise new 

paragraph (d) to replace the phrase 

‘‘physically or mentally disabled’’ with 

the person-first term ‘‘living with a 

physical or mental disability.’’ 

§ 1638.5 Recipient Policies 

LSC proposes no changes to this 

section. 

List of Subjects in 45 CFR Part 1638 

Grant programs—law, Legal services. 

For the reasons set forth in the 

preamble, the Legal Services 

Corporation proposes to amend 45 CFR 

part 1638 as follows: 

PART 1638—RESTRICTION ON 

SOLICITATION 

■ 1. Revise the authority citation for part 

1638 to read as follows: 

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

■ 2. Revise § 1638.2 to read as follows: 

§ 1638.2 Definitions. 

(a) Communicate or communication 

means to share information. Permissible 

forms of communication include, but 

are not limited to, sending information 

via mailings, text message, email, or 

other methods of voice or electronic 

communication. 

(b) In-person means a face-to-face 

encounter, including virtual clinics or 

other encounters via videoconference. 

(c) Unsolicited advice means advice to 

obtain counsel or take legal action given 

by a recipient or its employee to an 

individual who did not seek the advice 

and with whom the recipient does not 

have an attorney-client relationship. 

■ 3. Revise § 1638.3 to read as follows: 

§ 1638.3 Prohibition. 

(a) Recipients and their employees 

shall not represent a client as a result of 

in-person unsolicited advice. 

(b) Recipients and their employees 

shall not refer to other recipients 

individuals to whom they have given inperson unsolicited advice. 

■ 4. Revise § 1638.4 to read as follows: 

§ 1638.4 Permissible activities. 

A recipient may: 

(a) Communicate about legal rights 

and responsibilities or the recipient’s 

services and intake procedures or 

provide the same information through 

community legal education activities 

such as outreach, public service 

announcements, maintaining an 

ongoing presence in a courthouse to 

provide advice at the invitation of the 

court, disseminating community legal 

education publications, and giving 

presentations to groups that request 

them. 

(b) Communicate to parties in civil 

cases to notify them that a case has been 

filed against them; to inform them of 

upcoming court dates; to inform them 

that counsel may be available to 

represent them; and to provide 

information about intake. 

(c) Represent an otherwise eligible 

individual seeking legal assistance from 

the recipient as a result of a 

communication or information provided 

as described in § 1638.4(a), provided 

that the request has not resulted from 

in-person unsolicited advice. 

(d) Represent or refer clients pursuant 

to a statutory or private ombudsman 

program that provides investigatory and 

referral services and/or legal assistance 

on behalf of persons who are unable to 

seek assistance on their own, including 

those who are institutionalized or living 

with a physical or mental disability. 

(e) Represent an individual with 

whom the recipient initiated contact 

over the phone or via an electronic 

platform so long as the communication 

provides only generic information that 

is not tailored to the individual or the 

specific facts of the individual’s legal 

issues. 

Dated: October 20, 2023. 

Stefanie Davis, 

Deputy General Counsel for Regulations and 

Ethics Officer, Legal Services Corporation. 

[FR Doc. 2023–23568 Filed 10–24–23; 8:45 am] 

BILLING CODE 7050–01–P 


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