The Legal Services Corporation (LSC) has made only minor modifications in the Grant Assurances that the LSC will use when it enters into grants with LSC recipients in 2015.
During an extended comment period on possible revisions to the Grant Assurances, ABA Governmental Affairs Director Thomas M. Susman expressed the ABA’s concerns June 20 about proposed changes to Grant Assurance #10 regarding government access to the records of LSC recipients. The ABA comments were prepared in coordination with the association’s Standing Committee on Legal Aid and Indigent Defendants and the Center for Professional Responsibility.
The current language of Grant Assurance #10, which will be retained for 2015, requires LSC recipients to give LSC and the U.S. Comptroller General access to all records to which they are entitled under the provisions of the LSC Act and other “applicable” law. The proposed change would have required LSC recipients to provide access to all requested records, except “such materials that may be properly withheld under federal law,” including those “subject to the federal attorney-client privilege.” This change, according to the ABA comments, would have weakened the current language of Grant Assurance #10, which protects materials that may properly be withheld “due to applicable law or rules,” including “records subject to the attorney-client privilege.”
According to LSC, the change was proposed in response to the July 2013 decision of the Court of Appeals for the District of Columbia Circuit in U.S v. Cal. Rural Legal Assistance, 722 F 3d. 424 (D.C. Cir. 2013). In that case, the court ruled that federal law regarding privilege, not state law, governed in an action to enforce a subpoena for documents held by the LSC recipient.
After reviewing the comments from the ABA, other groups and LSC recipients, LSC determined that the existing “applicable law” language incorporates the U.S. v. CLRA decision and that changing it could create unnecessary and unintended problems.
In its comments, the ABA stated that the law governing disclosure of confidential client materials remains unsettled, and an important applicable federal law is the LSC Act, which states that the corporation shall not interfere with attorneys in carrying out their professional responsibilities as determined by the ABA’s legal ethics rules nor abrogate the authority of a state to enforce its applicable attorney ethical standards. “Thus, that federal law seems to turn to the state professional responsibility rules for its content, since only the states dictate ‘attorneys’ professional responsibilities’ (at least for practice in state courts, where much of an LSC grantee’s work is performed),” according to the comments. "Even if the decision in U.S. v. CRLA means that only federal professional responsibility law applies, such an approach is not sufficient to provide clarity regarding what rules apply and what materials are protected,” the comments continued, “and the court did not discuss the meaning in the LSC Act of the terms “statements of professional responsibility and attorneys’ professional responsibilities.”
The association also recommended that LSC include a clause in Grant Assurance #10 stating that a violation “will not be presumed to have automatically occurred if a recipient withholds certain documents under a colorable claim that they are protected under applicable law.”