����51

QUESTIONS PRESENTED

       I. Does 45 C.F.R Part 1638 prohibit ����51 grantees from representing an individual the grantee initiated contact with over the telephone or via text message regarding rights and identifying the types of legal services provided by the grantee?

    II. Does 45 C.F.R. Part 1638 prohibit ����51 grantees from representing an individual the grantee initiated contact with in-person during their ongoing presence in a courthouse?

BRIEF ANSWER

      I.  does not prohibit a grantee from representing an individual the grantee initiated contact with over the telephone or via text message so long as the communication provides only generic, form material that is not tailored to the individual receiving it or the specific facts relating to the individual’s legal issues. AO-2016-001. The initial communication may advise that lawyers are available but may not advise that “you should get a lawyer for this type of proceeding.” Id.

    II.  does not prohibit a grantee from representing an individual the grantee initiated contact with in-person during their ongoing presence in a courthouse. They may not, however, provide legal advice tailored to an individual’s specific case or advise an individual to hire a lawyer to represent them. AO-2016-001.

BACKGROUND

In anticipation of the expiration of federal and state COVID-19 eviction moratoria, an ����51 grantee recently contacted the Office of Legal Affairs regarding restrictions on solicitation under 45 C.F.R. Part 1638. The grantee would like to conduct outreach to advise tenants of their rights and connect them with legal services. In particular, the grantee would provide them with hotline numbers and/or online intake links in-person, over the telephone, and via text massage. Separately, an external stakeholder asked ����51 whether it violates ����51’s rules for a legal services program to maintain an information desk at a courthouse to provide information about its services. Because both inquiries involve the application of Part 1638 to grantee activities, we address both in this opinion.

ANALYSIS

Section 504(a)(18) of ����51’s FY 1996 appropriation act, incorporated by reference in ����51’s annual appropriations thereafter, provides that recipients of ����51 funds

“. . . 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[.]” 

Pub. L. 104-134, Title V, 110 Stat. 1321, 1321-51 (1996) (emphasis added).

����51 implemented this statutory restriction in 45 C.F.R. Part 1638. Section 1638.3(a) provides that “recipients and their employees are prohibited from representing a client as a result of in-person unsolicited advice.” 45 C.F.R. § 1638.3(a) (emphasis added). The regulation defines “in-person” as “a face-to-face encounter or a personal encounter via other means of communication such as a personal letter or telephone call.” Id. § 1638.2(a) (emphasis added). The regulation defines “unsolicited advice” as “advice to obtain counsel or take legal action given by a recipient or its employees to an individual who did not seek the advice and with whom the recipient does not have an attorney–client relationship.” Id. (emphasis added).

Part 1638 also expressly permits ����51 grantees to provide information regarding legal rights and responsibilities or grantees’ legal services and intake procedures:

(a) This part does not prohibit recipients or their employees from providing information regarding legal rights and responsibilities or providing information regarding the recipient's services and intake procedures 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) A recipient may represent an otherwise eligible individual seeking legal assistance from the recipient as a result of information provided as described in § 1638.4(a), provided that the request has not resulted from in-person unsolicited advice.

 45 C.F.R. § 1638.4 (emphasis added).

 I.              Communication via Text Messages and Telephone Calls

Part 1638 does not prohibit an ����51 grantee from sending text messages to individuals facing eviction that contain only information about the end of eviction moratoriums, tenant rights, the availability of attorneys to handle eviction cases, and ����51 grantee hotline and intake line numbers.

A communication from an ����51 grantee to an individual triggers the prohibition in Part 1638 only if it both (1) constitutes a “personal letter or telephone call;” and (2) provides “unsolicited advice.” AO-2016-001. A communication, such as a text message, does not constitute a “personal letter or telephone call” if the substance of the letter or call provides only generic, form material that is not tailored to the individual receiving it or the specific facts relating to the individual’s legal issues. Id. A communication does not provide “unsolicited advice” if it contains solely “information regarding legal rights and responsibilities or . . . information regarding the grantee’s services and intake procedures.” Id.

It is also consistent with Part 1638 for ����51 grantees to make telephone calls conveying information about the end of eviction moratoria, tenant rights, the availability of attorneys to handle eviction cases, and ����51 grantee hotline and intake line numbers so long as the substance of the call is limited to that legal information. Such calls should be carefully scripted. ����51 recommends that grantees who decide to pursue this type of informational phone call: 

• Provide the callers with instructions about how the calls should proceed (including instructions not to give any advice about the specifics of the individual’s case or advice to call the intake line, as opposed to informing that an intake line is available); and

• Conduct oversight of the call process, which could include notes of each call and/or an attestation that the grantee followed the script and did not advise the individual to call the hotline.

����51 grantees may provide the individual with an intake number or connect them directly with the intake line, whichever the individual prefers.

II.            In-Person Contact in Courthouses

����51 grantees can maintain a presence in courthouses and provide information about their services without violating Part 1638. Under ����51’s rules, recipients may provide “information regarding legal rights and responsibilities or providing information regarding the recipient’s services and intake procedures through . . . maintaining an ongoing presence in a courthouse to provide advice at the invitation of the court[.]” 45 C.F.R. 1638.4(a). Additionally, a recipient may represent an individual “seeking legal assistance from the recipient as a result of information provided as described in § 1638.4(a), provided that the request has not resulted from in-person unsolicited advice.” Id. § 1638.4(b). In other words, a recipient may provide information about its services and intake procedures to an individual via an information table at a courthouse and may accept that individual as a client. The recipient may not, however, provide legal advice tailored to an individual’s specific case or advise an individual to hire a lawyer to represent them, again in contrast to informing someone that lawyers are available. Id. 1638.3(a).  

CONCLUSION

 Part 1638 does not prohibit ����51 grantees from representing individuals an ����51 grantee communicated with in-person, over the telephone, or via text message so long as the communication provides only generic, form material that is not tailored to the individual receiving it or the specific facts relating to the individual’s legal issues. 

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

STEFANIE K. DAVIS
Senior Assistant General Counsel

BRADLEY S. O’NEIL
Graduate Law Fellow