19 CSR 15-4.270 - Legal Assistance

Current through Register Vol. 46, No. 19, October 1, 2021

PURPOSE: This rule sets forth the requirements for legal assistance and establishes criteria that legal assistance providers shall meet.

(1) The area agency shall award funds to the legal assistance provider(s) that most fully meets the following requirements. The legal assistance provider(s) shall-
(A) Have staff with expertise in specific areas of law affecting older persons with economic or social needs, for example, public benefits, institutionalization and alternatives to institutionalization;
(B) Demonstrate the capacity to provide effective administrative and judicial representation in the areas of law affecting older persons with economic or social need;
(C) Demonstrate the capacity to provide support to other advocacy efforts, for example, the long-term care ombudsman program;
(D) Demonstrate the capacity to deliver legal assistance to institutionalized, isolated and homebound older individuals effectively; and
(E) Demonstrate the capacity to provide legal assistance in the principal language spoken by clients in areas where a significant number of clients do not speak English as their principal language.
(2) A legal assistance provider may not require an older person to disclose information about income or resources as a condition for providing legal assistance under this part. A legal assistance provider may ask about the person's financial circumstances as a part of the process of providing legal advice, counseling and representation or for the purpose of identifying additional resources and benefits for which an older person may be eligible.
(3) Each legal assistance provider, its attorney and employees shall comply with the following regulations when engaged in the outside practice of law:
(A) No attorney shall engage in any outside practice of law if the director of the provider has determined that the practice is inconsistent with the attorney's full-time responsibilities;
(B) If the requirement of subsection (3)(A) is met, a provider may permit an attorney to engage in compensated outside practice of law when the attorney is newly employed and has a professional responsibility to close cases from a previous law practice and does so as expeditiously as possible;
(C) If the requirement of subsection (3)(A) is met, a provider may permit an attorney to engage in compensated outside practice of law when the attorney is acting pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction and remits to the provider all compensation received; or
(D) If the requirement of subsection (3)(A) is met, a provider may permit an attorney to engage in uncompensated outside practice of law when the attorney is acting pursuant to an appointment made under a court rule or practice of equal applicability to all attorneys in the jurisdiction or on behalf of a close friend, family member, religious community or charitable group.
(4) A provider, employee of the provider or staff attorney shall not engage in the following prohibited political activities:
(A) A provider shall not contribute or make available Older Americans Act (the Act) funds or any personnel requirement to any political party or association to the campaign of any candidate for public or party office or for use in advocating or opposing any ballot measure, initiative or referendum;
(B) No employee intentionally shall identify the Title III program or provider with any partisan or nonpartisan political activity or with the campaign of any candidate for public or party office;
(C) No employee shall use any Act funds for activities prohibited to attorneys under subsection (4)(A); nor shall an employee intentionally identify or encourage others to identify the provider with those activities;
(D) While engaged in legal assistance activities (any activity carried out during an employee's working hours which uses resources provided under the Act, and, in fact, provides legal assistance to an eligible client), no employee and no staff attorney, at any time, shall-
1. Use official authority or influence for the purpose of interfering with or affecting the result of an election or nomination for office, whether partisan or nonpartisan;
2. Coerce, directly or indirectly, attempt to coerce, command or advise an employee under the Act to pay, lend or contribute anything of value to a political party or committee, organizations, agency or person for political purposes; or
3. Be a candidate for partisan elective public office; and
(E) While engaged in legal assistance activities supported under the Act, no attorney shall engage in any-
1. Political activity;
2. Activity to provide voters with transportation to the polls or to provide similar assistance in connection with an election; or
3. Voter registration activity.
(5) No provider shall use funds received under the Act to provide legal assistance in a fee-generating case unless other adequate representation is unavailable. All providers shall establish procedures for the referral of fee-generating cases.
(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 assistance from an award to a client, from public funds or from the opposing party.
(B) Other adequate representation is deemed to be unavailable when the provider had determined that fee referral is not possible due to any of the following:
1. The case has been rejected by the local lawyer-referral service or by two (2) private attorneys;
2. Neither the referral service nor any lawyer will consider the case without payment of a consultation fee; or
3. Emergency circumstances compel immediate action before referral can be made, but the client is advised that, if appropriate, and consistent with professional responsibility, referral will be attempted at a later time.
(C) Other adequate representation is deemed to be unavailable when-
1. Recovery of damages is not the principal object of the case and a request for damages is merely ancillary to an action for equitable or other nonpecuniary relief or inclusion of a counterclaim requesting damages is necessary for effective defense or because of applicable rules governing joinder of counterclaims;
2. A court appoints a provider or an employee for a provider pursuant to a statute or a court rule or practice of equal applicability to all attorneys in the jurisdiction; or
3. An eligible client is seeking benefits under Title II of the Social Security Act, 42 U.S.C. 401, Federal Old Age Act, Survivors and Disability Insurance Benefits; or Title XXVI of the Social Security Act, 42 U.S.C. 1381, Supplemental Security Income for Aged, Blind and Disabled.
(D) A provider may seek and accept a fee awarded or approved by a court or administrative body or included in a settlement if-
1. The requirements of subsections (4)(B) and (C) are met; and
2. Funds received are not used for purposes prohibited by the Act.
(E) When a case or matter subject to this section results in a recovery of damages, other than statutory benefits, a provider may accept reimbursement from the client for out-of-pocket costs and expenses incurred in connection with the case or matter, if the-
1. Requirements of subsections (4)(B) and (C) are met; and
2. Client has agreed in writing to reimburse the provider for these costs and expenses.
(6) While carrying out legal assistance activities funded under the Act, no employee shall-
(A) Knowingly participate in any public demonstration, picketing, boycott or strike, except as permitted by law in connection with the employee's own employment situation;
(B) Intentionally exhort, direct or coerce others to engage in those activities or otherwise usurp or invade the rightful authority of a client to determine what course of action to follow; and
(C) Be prohibited, if an attorney, by any provision of this section from-
1. Informing and advising a client about legal alternatives to litigation or the lawful conduct of litigation; or
2. Fulfilling the professional responsibilities of an attorney to a client.
(7) No funds made available to a provider under the Act shall be used, at any time, directly or indirectly, to support activities intended to influence the issuance, amendment or revocation of any executive or administrative order or regulation of a federal, state or local agency or to undertake to influence the passage or defeat of any legislation by the Congress of the United States or by any state or local legislative body or state proposals by initiative petition, except that an employee may-
(A) Respond to a request from a governmental agency or a legislative body, committee or member made to the employee or to a recipient to testify, draft or review measures or to make representation to the agency, body, committee or member on a specific matter; or
(B) Engage in the activities at the request of an eligible client of a provider, to the extent the activities are necessary to the provision of legal advice and representation to a client who has sought this legal advice and representation with respect to particular legal rights and responsibilities which would be affected by particular legislation or administrative measures, but no employee shall solicit a client in violation of professional responsibilities for the purpose of making the representation possible.
(8) Providers shall adopt procedures and forms to document that the legislative and administrative activities in which they engage fall within the activities permitted in 45 CFR section 1321.71.
(A) With respect to activities permitted under subsection (7)(A), a written request signed by an official of the governmental agency or a member of the legislative body or committee making the request which states the type of representation or assistance required and identified the executive or administrative order, regulation or legislation to be addressed;
(B) With respect to activities permitted under subsection (7)(B), a retainer agreement signed by the client(s) represented, or by an official of the client group in the case of a group client, which agreement shall specify the legislative or administrative measure on which representation is sought (appearance at a hearing, legislative drafting, etc.) and which shall include a statement of the client's direct interest in the particular legislative or administrative measure to be addressed; and
(C) Providers shall obtain the documentation required by this section prior to undertaking any of the activities permitted by subsection (7)(A) or (B) in the absence of a written request provided that the fact, nature and circumstances of the request are subsequently documented in writing and signed by the requesting authority.
(9) No funds made available under the Act shall be used to-
(A) Maintain separate offices for the sole purpose of engaging in legislative activity;
(B) Pay dues to any organization (other than a bar association) a substantial purpose or function of which is to take positions on matters pending before legislative or administrative bodies;
(C) Pay for transportation to legislative or administrative proceedings of persons other than employees engaged in activities permitted under this section or witnesses entering appearances in the proceedings on behalf of clients of the providers, except that those funds may be used to transport the client where necessary and appropriate. This subsection does not authorize payment of transportation expenses for employees not actually engaged in permitted representation activities;
(D) Pay, in whole or in part for the conduct of, or transportation to, an event if a primary purpose of expenditure is to facilitate lobbying or any other activity which would be prohibited if conducted with funds made available under the Act;
(E) Pay for administrative or related costs associated with any activity prohibited by this part; or
(F) Assist others, through legislative liaison activities, to influence legislation in a manner that would be prohibited if undertaken with funds made available under the Act. Legislative liaison activities include, but are not limited to, attending legislative sessions or committee hearings, gathering information regarding pending legislation and analyzing the effect of pending legislation.
(10) Notwithstanding the provisions of subsection (7)(A), providers shall not use funds made available under the Act for publicity or propaganda purposes designed to support or defeat proposed legislation or legislation pending before Congress or any state legislature. For purpose of this regulation, publicity or propaganda means any oral communication or any advertisement, telegram, letter, article, newsletter or other printed or written matter or device which contains a direct suggestion or, when taken as a whole, an indirect suggestion to the public at large or to selected individuals to contact elected representatives in support of or in opposition to pending or proposed legislation.
(11) No funds made available to a provider under the Act shall be used to support the preparation, production and dissemination of any article, newsletter or other publication or written matter for general distribution which contains any reference to proposed or pending legislation unless-
(A) The publication does not contain any publicity or propaganda prohibited by section (10);
(B) The provider has adopted a policy requiring the provider's executive director, or his/her designee, to review each application produced by the provider prior to its dissemination for conformity to these regulations;
(C) The provider provides a copy of any such material produced by the provider to the area agency within thirty (30) days after publication; and
(D) These funds are used only for costs incident to the preparation, production and dissemination of publications to providers, providers' staff and board members, private attorneys representing eligible clients and the area agency, as opposed to the public at large.
(12) Notwithstanding the provisions of section (7), no funds made available to a provider under the Act shall be used, directly or indirectly, to pay for any personal service, advertisement, telegram, telephone communication, letter, printed or written matter or other device, intended or designed to influence any decision by a federal, state or local agency, except where legal assistance is provided by an employee of a provider to an eligible client on a particular application, claim or case, which directly involves the client's legal rights and responsibilities or to influence any member of Congress or any other federal, state or local elected officials to favor or oppose any acts, bills, resolutions or similar legislation or any referendum, initiative, constitutional amendment or any similar procedure of Congress, any state legislature, any local council or any similar governing body, except that this subsection shall not preclude funds from being used in connection with communications made in response to any federal, state or local official upon a specific matter.
(A) The exception for communications to officials does not authorize communication with anyone other than the requesting party.
(B) No employee of the provider, directly or indirectly, shall solicit a request from any official to testify or otherwise advocate the support or defeat of legislative measures.
(13) Nothing in this section is intended to prohibit an employee from-
(A) Communicating with a governmental agency for the purpose of obtaining information, clarification or interpretation of the agency's rules, practices or policies;
(B) Informing a client about a new or proposed statute, executive order or administrative regulation consistent with the requirements of sections (10) and (11);
(C) Responding to an individual client's request for advice only with respect to the client's own communications to officials unless otherwise prohibited by the Older Americans Act, Title III regulations or other applicable law. This provision does not authorize publication or training of a client on lobbying techniques or the composition of a communication for the client's use; or
(D) Making direct contact with the area agency for any purpose.

Notes

19 CSR 15-4.270
AUTHORITY: section 660.050, RSMo Supp. 1999.* This rule was previously filed as 13 CSR 15-6.180 and 13 CSR 15-4.270. Original rule filed Jan. 6, 1986, effective April 30, 1986. Amended: Filed Aug. 28, 2000, effective March 30, 2001. Moved to 19 CSR 15-4.270, effective Aug. 28, 2001.

*Original authority: 660.050, RSMo 1984, amended 1988, 1992, 1993, 1994, 1995.

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