����51

QUESTION PRESENTED

Legal Service Corporation’s (“����51’s”) regulations require recipients to document that potential clients are U.S. citizens or hold eligible non-citizen status, 45 C.F.R. §§ 1626.6, 1626.7, unless the recipient represents the client as part of a “separately funded public defender program or project.”  Id. § 1610.6(a).  Under Louisiana law, children and their parents involved in “Child in Need of Care” cases have the right to be represented by an attorney.  The Louisiana Bar Foundation has contracted with Acadiana ����51 (“A����51”) to represent children in these cases pursuant to court appointment.  The question presented is whether A����51’s contract to represent children constitutes a “separately funded public defender program or project” under Section 1610.6(a), so that the representation is not subject to the restriction on representing individuals who are not citizens or who do not hold eligible non-citizen status?  Id. § 1626.3.

BRIEF ANSWER

Yes. Section 1610.6(a) states that the ����51 restrictions in Parts 1626 (citizenship and alienage), 1613 (criminal proceedings), 1615 (actions challenging criminal convictions), and 1637 (civil litigation for prisoners) do not apply to a recipient’s “separately funded public defender program or project[.]”  Section 1610.6(a) applies where a state or other governmental unit commits to provide a defender service at public expense and contracts with an ����51 recipient to provide those services.  This standard is met where a state law provides children faced with entering state custody with the same right to counsel as individuals facing criminal prosecution. 

In this case, Louisiana law provides both children and parents the right to be represented by an attorney in child protection cases.  The state legislature appropriates funds to the Louisiana Supreme Court to cover the expense of providing children with an attorney.  The Louisiana Supreme Court contracts with the Louisiana Bar Foundation, which in turn contracts with A����51 to provide these services.  Accordingly, A����51’s representation under this contract constitutes a “separately funded public defender program or project” under 45 CFR § 1610.6(a).  Consequently, A����51 does not need to screen children it represents pursuant to this contract for citizenship or eligible non-citizenship status.

BACKGROUND

Louisiana law provides children and indigent parents the right to be represented by an attorney in “Child in Need of Care” cases.  (2019) (“The court shall appoint the program designated for the jurisdiction by the Louisiana Supreme Court to provide qualified, independent counsel for the child at the time the order setting the first court hearing is signed.”); (“If a parent of a child is financially unable to afford counsel, the court shall refer the parent for representation by the Indigent Parents’ Representation Program administered by the Louisiana Public Defender Board.”).

Under Louisiana law, children are deemed “in need of care” when they are neglected or abused.  .  Where a Louisiana court receives a complaint alleging facts showing “reasonable grounds to believe that the child is in need of care and that emergency removal is necessary to secure the child’s protection,” the court must “determine whether emergency removal or the issuance of a safety plan order is necessary to secure the child's protection.”  .  The Court issues an Instanter Custody Order or Safety Plan Order with its determination.  In the Order, the Court appoints counsel to represent the child and different counsel to represent the parent.  Id.

In 2003, the state legislature created a Task Force on Legal Representation in Child Protection Cases (“The Task Force”) to “study … the provision of legal representation of abused and neglected children and their indigent parents in child protection cases and to make recommendations on how those services may be more effectively and efficiently provided and funded.”  La. H.C.R. No. 44 of the 2003 Reg. Sess.  The Task Force operated from 2003-2014 and periodically made recommendations to the legislature, which the legislature accepted and enacted into law.  See Recommendations Pursuant to House Concurrent Resolution 66 of 2013, Task Force on Legal Representation in Child Protection Cases 44-45 (2014) [hereinafter, “The Task Force Report”].[fn]“House Concurrent Resolution 66 of the 2013 Regular Session continued the work of the Task Force for a final year in order to formalize and institutionalize this effective and efficient system of representation and to ensure ongoing programmatic quality, fiscal accountability, and state level oversight.” Id.[/fn]

At the time the legislature created the Task Force, the district public defender was authorized by statute to represent children in Child in Need of Care cases.  The Task Force recognized that the then-existing system of representing children and indigent parents in child welfare cases was insufficient to ensure quality representation. To create a uniform statewide system of representation that would be more stable, efficient, and equitable,

[t]he task force urged the legislature to create a Child Advocacy Program (within the Mental Health Advocacy Service) to provide for specialized representation of children in child protection cases and an Indigent Parents’ Representation Board (within the Louisiana Public Defender Board) to provide for representation of indigent parents in child protection cases. 

The Task Force Report, at 13-14.  In 2006 and 2007, the Louisiana legislature created these entities. 2006 La. Sess. Law Serv. Act 271 (West); 2007 La. Sess. Law Serv.  Act 95 (West).

By 2010, the Louisiana Public Defender Board was providing the required government- compensated representation for indigent parents.  The Task Force Report, at 15-16.  At that time, however, the Mental Health Advocacy Service “had not yet developed statewide capacity at either at the local or state administration levels.”  Id. at 15. 

To achieve a uniform statewide system of representation as quickly as possible, The Task Force recommended that the Louisiana Bar Foundation “provide for representation of children in need of care in all the jurisdictions not already served by the [Mental Health Advocacy Service]” by contracting with the state’s legal services organizations.  Id.  The Bar Foundation agreed.  In 2013, The Task Force requested that the Supreme Court accept the appropriation for child representation in child protection cases “with the understanding that the funds would … flow through the Supreme Court to the Bar Foundation for administration of the child representation program.”  Id. at 17.  The Supreme Court agreed and contracted with the Louisiana Bar Foundation to provide representation for children in parishes where the Mental Health Advocacy Service does not.  Margot E. Hammond, , 66 La. B. J., no. 2, 93- 94 (2018).  The Bar Foundation, in turn, contracts with two Louisiana legal services organizations – A����51 and Southeast Louisiana Legal Services –to provide representation for children.  Id.   

Pursuant to the contract, Louisiana courts appoint A����51 attorneys to represent children in approximately 1,500 cases annually.  Once an A����51 attorney receives the Instanter Order, he or she must appear on behalf of the child at the initial hearing.  Often, the A����51 attorney has less than an hour, and at most 72 hours, to prepare for the initial hearing.  The child often does not attend the hearing, and the A����51 attorney may not meet the child before the hearing.

The A����51 attorney attempts to screen the children to determine whether they are client-eligible by obtaining information from the court, the social worker, or the parent.  At times, these parties are reluctant to provide the information necessary for A����51 to confirm that a child is a U.S. citizen or has eligible non-citizen status as ����51’s regulations require.[fn]Our understanding of A����51’s arrangement comes from an ����51 Office of Compliance and Enforcement (OCE) Technical Assistance Review conducted at A����51 in June 2017 and emails between OCE and A����51 in June of 2019.[/fn]

APPLICABLE AUTHORITY

Part 1626 of ����51’s regulations requires recipients to obtain documentation of U.S. citizenship or eligible non-citizen status from potential clients.  .  Section 1610.6 of ����51’s regulations, however, exempts from this requirement “[a] recipient’s . . . separately funded public defender program or project[.]” Id. § 1610.6(a).[fn]The restrictions in Parts 1613 (criminal proceedings), 1615 (actions challenging criminal convictions), and 1637 (civil litigation for prisoners) are also exempted by Section 1610.6, but they are not germane to this analysis. [/fn]

In an Advisory Opinion issued September 9, 2016, the Office of Legal Affairs reviewed an ����51 recipient’s representation under a New Jersey law that “provides individuals facing civil commitment with the right to be represented by an attorney and, if unrepresented or unable to afford an attorney, the right to be provided with an attorney paid for by the appropriate government agency.”  AO-2016-005 (quoting NJSA 30:4-27.11(c)) (internal quotation marks omitted).  The state’s Office of the Public Defender represented minors in these proceedings, and, pursuant to a contract, a county government paid the ����51 recipient with state funds to represent the adults.  Some, but not all, clients had criminal matters associated with the commitments. 

In an Advisory Opinion issued May 17, 2017, the Office of Legal Affairs reviewed an ����51 recipient’s representation under a Wyoming law that provides an individual facing civil commitment the “right to appointed counsel if he is indigent[.]”  AO-2017-003 (quoting Wy. Stat. Ann. § 25-10-109(g)).

In both AO-2016-005 and AO-2017-003, we explained that the phrase “separately funded public defender program or project” “cover[s] situations in which a state or other governmental unit commits to provide a defender service at public expense and contracts that function out to an ����51 funding recipient.” AO-2016-005, at 5; AO-2017-003, at 2.  We concluded that because the New Jersey and Wyoming laws provided individuals facing civil commitment with the same right to counsel as individuals facing criminal prosecution, the recipients in New Jersey and Wyoming carried out public defender functions.  AO-2016-005, AO-2017-003.  Accordingly, under § 1610.6(a), the recipient’s representation in these civil commitment proceedings was exempt from the requirements of Part 1626 of ����51’s regulations.  AO-2016-005, at 5; AO-2017-003, at 3.  

ANALYSIS

Section 1610.6(a) provides that four enumerated restrictions do not apply to a “recipient’s . . .  separately funded public defender program or project.” The question here turns on whether A����51’s representation pursuant under Louisiana law and the contracts entered under that law constitutes a separately funded “public defender program or project” under section 1610.6(a).    We understand the quoted phrase to apply in situations where a state or other governmental unit commits to provide a defender service at public expense and contracts that function out to an ����51 funding recipient.  That is the circumstance here. 

The state of Louisiana, by statute, provides children and indigent parents in child protection cases with the same right to be represented by an attorney as an individual facing criminal prosecution.  La. Child. Code Ann. art. - (2018).  Throughout the state, the Public Defender Board provides this representation for parents.  The Mental Health Advocacy Service and Louisiana Bar Foundation provide this representation for children.  The Louisiana Bar Foundation does so through contracts with A����51 and another legal services provider.  When a court appoints A����51 pursuant to this contract to represent a child faced with the possibility of being removed from their home and placed in state custody, A����51 carries out a “public defender” function.  Indeed, the district public defender represented children in child welfare cases before Louisiana restructured how it provided representation for children in child protection cases to have a more effective, affordable, and efficient system.  See ; see The Task Force Report, at 4.

In AO-2016-005 and AO-2017-003, we reviewed cases presenting similar circumstances:  state law provided indigent individuals facing civil commitment with the right to a government-funded attorney, and the state provided the attorney by contracting with an ����51 recipient.  In New Jersey and Wyoming, the city and county, respectively, contracted directly with the ����51 recipient to provide defense services.  Here, the state bar foundation receives state funding through the Supreme Court and contracts with an ����51 recipient to provide children with statutorily authorized representation.  The analysis does not change simply because the public funds pass through the Louisiana Bar Foundation.  Accordingly, A����51’s representation pursuant to the contract and under this law constitutes a “separately funded public defender program or project.”  Because this representation is separately funded, meaning that no ����51 funds are used, A����51 qualifies for the exemption in § 1610.6(a).  Therefore, the prohibitions identified in Part 1610, including Part 1626’s citizenship and alienage requirements, do not apply to A����51’s representation in this circumstance. 

As this analysis indicates, the determination of what constitutes a “public defender program or project” is a circumstance-specific inquiry.  This Opinion does not provide a general rule for all civil right-to-counsel situations.  Historically, Louisiana district public defenders were authorized by statute to represent children in Child in Need of Care cases.  This Opinion does not reach a conclusion on whether A����51’s contract would constitute a “separately funded public defender program or project” absent that fact. 

RONALD S. FLAGG
Vice President for Legal Affairs and General Counsel

STEFANIE K. DAVIS
Assistant General Counsel

KARLY SATKOWIAK
Special Counsel