Client Eligibility Rules
I. INTRODUCTIONS AND DEFINITIONS
II. FINANCIAL ELIGIBILITY
III. FEE GENERATING CASES
V. OTHER INELIGIBLE PERSONS AND MATTERS
VI. GROUP REPRESENTATION
VII. CHANGE OF CIRCUMSTANCES
VIII. REFERRALS AND RECONSIDERATION
IX. CONFIDENTIALITY AND VERIFICATION
X. APPEAL BY APPLICANT
XI. RETAINER AGREEMENT
I. INTRODUCTIONS AND DEFINITIONS
A. In General
The basic standard for eligibility for ILS services shall be the applicant's inability to pay a reasonable fee for a lawyer's services. The eligibility determination is a three step process:
- determining if an applicant's household income and equity of assets are low enough to qualify prima facie as eligible;
- if the applicant's household income or assets are too high to qualify prima facie, is the applicant eligible under any of the exceptions;
- even if eligible under either of the above, does the nature of the legal problem exclude the applicant?
An applicant who is financially ineligible may still be served if the assistance is wholly supported by funds from a source other than LSC and the assistance is otherwise permissible under applicable law and regulation. For example, an office or project with an Older Americans' Act grant may serve seniors who are financially ineligible with funds under the grant.
Representation may be provided to groups and organizations if certain conditions are met.
Ineligible applicants shall be referred to other agencies.
Information shall be maintained in confidentiality.
Applicants shall be advised at the time of application of their rights of appeal.
- "Income" means actual current annual total cash receipts before taxes of all persons who are resident members of and contribute to, the support of a household.
- "Total cash receipts" include money wages and salaries before any deductions but do not include food or rent in lieu of wages. They include income from self-employment, after deductions for business or farm expenses. They include regular payments from public assistance, social security, unemployment and worker's compensation, strike benefits from union funds, veterans benefits, training stipends, alimony, spousal maintenance, child support and military family allotments or other regular support from an absent family member or someone not living in the household; public or private employee pensions and regular insurance or annuity payments; income from dividends, interest, rents, royalties or from estates and trusts. They do not include money withdrawn from a bank, tax refunds, gifts, one-time insurance payments, and/or compensation for injuries sustained; nor do they include non-cash benefits.
- "Household" means persons who live together and are related by blood or marriage and who have a legal obligation of support for one another. If the applicant is a victim of domestic violence, only the assets and income of the applicant and members of the applicant's household other than those of the alleged perpetrator of the domestic violence shall be considered. Any assets held by the alleged perpetrator of the domestic violence, jointly held by the applicant with the alleged perpetrator of the domestic violence, or assets jointly held by any member of the applicant's household with the alleged perpetrator of the domestic violence, shall not be considered.
- "Unemancipated" person is one who is taken as a tax dependent by another person and who is under eighteen (18) years of age.
- "Parent" means either a natural parent or a person standing in the legal relationship of a natural parent to the applicant.
- "Student" means any person enrolled in an institution providing post high school education. Such institutions include but are not limited to trade schools, vocational schools, business schools, colleges and universities.
- "Fee generating case"means any case or matter which, if undertaken on behalf of an eligible client by an attorney in private practice:
- seeks actual damages exceeding $3000.00 in affirmative actions;
- seeks actual damages in counterclaims, cross-claims, set-offs, and third party complaints, all of which may include alternative relief, wherein the net money recovery may reasonably be expected to exceed $3000.00; or
- reasonably may be expected to result in a fee for legal services from public funds, from an award to the client, or from the opposing party when he or she would be ineligible for ILS services.
- "Governmental program for low income individuals or families" means any Federal, State or local program that provides benefits of any kind to persons whose eligibility is determined on the basis of financial need.
- "Corporation" means the Legal Services Corporation.
- "Applicant" means any individual or organization of individuals that makes a request for the provision of legal services by ILS through the established case intake procedures.
42 U.S.C. 2996e(b)(1), 2996f(a)(1), 2996f(a)(2); 45 C.F.R. Part 1611.
1. Past income is not to be used in computing the applicant's eligibility. Future income is to be projected on the basis of the applicant's reasonable expectation of future income.
2. An applicant shall be prima facie eligible if the income of the applicant does not exceed the limits of Schedule A (Schedule A.)
3. If the applicant's income exceeds the amount of Schedule A, but falls within 200% of the applicable Federal Poverty Guidelines amount, the applicant may nonetheless be eligible if the applicant's circumstances show that eligibility should be allowed on the basis of one or more of the following factors:
- Current income prospects, taking into account seasonal variations in income;
- Unreimbursed medical expenses and medical insurance premiums;
- Fixed debts and obligations;
- Expenses such as dependent care, transportation, clothing and equipment expenses necessary for employment, job training, or educational activities in preparation for employment;
- Non-medical expenses associated with age or disability;
- Current taxes; or
- Other significant factors that affect the applicant's ability to afford legal assistance.
For example, if the applicant's income is above the ceiling in Schedule A but less than 200% of the poverty guidelines, and the applicant has expenses listed above that when subtracted from the applicant's income reduces the applicant's remaining income below the ceiling, then the applicant shall be considered to be financially eligible.
4. The applicant meets the income test if he or she is seeking assistance to maintain benefits provided by a governmental program for low income individuals or families. The applicant also meets the test if the applicant's income does not exceed 200% of the federal poverty guidelines and the applicant is seeking assistance to obtain governmental benefits for low income individuals and families, or the applicant is seeking assistance to obtain or maintain governmental benefits for persons with disabilities.
5. The applicant shall be considered to meet the income test if the Executive Director, or his/her designee, has determined on the basis of documentation received by the recipient, that the applicant's income is primarily committed to medical or nursing home expenses and that, excluding such portion of the applicant's income which is committed to medical or nursing home expenses, the applicant would otherwise meet the income test.
6. In the event that ILS determines to serve an applicant whose gross income exceeds the maximum set forth in Schedule A, that decision shall be documented and included in the client's file.
1. Notwithstanding the provisions of the above section A, no applicant shall be found eligible if the members in his or her family unit own cash or other assets which can readily be converted into cash (e.g. bank accounts, including checking and savings, and investments including stocks, bonds and other securities) in amounts in excess of $3,000.00. If the applicant has between $1,000.00 and $3,000.00 in cash or other assets which can be readily converted into cash, then ILS will not accept the case if the applicant would be able to retain private counsel to resolve the issue.
2. The equity in an applicant's or applicant family's principal residence shall not be considered an asset for the purposes of paragraph B.1, above. However, the equity in any other real property shall be considered as an asset, unless the applicant shows that the equity cannot readily be converted to cash.
3. Automobiles and other vehicles used for transportation shall not be considered assets.
4. Reasonable equity in work-related equipment which is essential to the employment or self-employment of an applicant or member of the applicant's family unit, shall not be utilized to disqualify an applicant, provided that the owner is attempting to produce income consistent with its fair market value.
5. Tangible property of up to $8,000 shall not be considered as assets for the purposes of paragraph B.1, above.
6. If an applicant's sole source of income is TANF or SSI, that person meets the ILS' asset test.
7. The Executive Director or his designee may waive the asset ceiling for specific applicants in unusual circumstances. Reasons for waiving the ceiling shall be documented and maintained.
C. Unemancipated Persons
An unemancipated applicant shall be prima facie ineligible if a parent, having custody of the applicant, is ineligible. Also see section V(I) of these eligibility rules.
45 C.F.R. Section 1611.3, .4, and .5. (48 Fed. Reg. 54205,6).
A. Acceptance of Fee Generating Cases
ILS may not represent clients in fee generating cases unless other adequate representation is unavailable.
B. Other Adequate Representation
Other adequate representation is deemed to be unavailable when:
- ILS has determined that free referral is not possible because:
- the case has been rejected by the local lawyer referral service, or by two private attorneys; or
- neither the referral service nor any lawyer will consider the case without payment of a consultation fee; or
- 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; or
- 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 non-pecuniary relief; or inclusion of a counter-claim requesting damages is necessary for effective defense or because of applicable rules governing joinder of counterclaim; or
- A court appoints a recipient or an employee of a recipient pursuant to a statute or a court rule or practice of equal applicability to all attorneys in the jurisdiction.
A case which seeks the replevin of property shall not be considered fee-generating.
An applicant who is ineligible because his/her case is deemed fee generating shall be referred in accordance with section VIII of these guidelines.
See 42 U.S.C. Section 2296f(b)(1); 45 C.F.R. Section 1609 (41 Fed. Reg. 38505-6).
A. Residency Generally Required
An applicant shall be prima facie eligible for ILS services if s/he is a resident of a "covered area." The ILS "covered area: currently includes all counties in the State of Indiana.
1. If an applicant, otherwise eligible, is not a resident of the covered areas but has a problem which might be resolved in the covered areas, then the Executive Director shall have the exclusive discretion to decide whether ILS shall serve the applicant.
2. If an applicant meets all conditions of eligibility but has a problem which might be resolved in a non-covered area, then the Executive Director shall have the exclusive discretion to decide whether ILS shall serve said applicant.
3. See also V(R) of these eligibility rules.
1. No student shall be eligible for ILS legal assistance unless the student is financially eligible, and either
- the student has not received a majority of his/her support from his/her parent during the past twelve months, or
- the student's parent has provided the majority of the student's support during the past twelve months and the student's parent would be eligible for ILS legal assistance.
2. A student shall be referred to the appropriate agency if the case is of a type in which it provides legal assistance.
3. ILS shall not provide legal assistance to students in the following matters:
- residency contests to determine eligibility for instate tuition;
- disciplinary matters not involving the possibility of suspension from an institution providing post high school education;
- matters involving quasi criminal charges and proceedings.
B. Paternity and Support
An applicant, who is seeking either (1) to establish paternity over a child or (2) to obtain support, under an existing court order or decree, for a child from the parent of the child, shall prima facie be ineligible for ILS representation.
An applicant whose case involves the probate of a will and the size of the estate is sufficient to pay for the necessary legal services shall prima facie be ineligible for ILS representation.
D. Dissolution of Marriage
An applicant who is seeking representation for a dissolution of marriage, where it appears likely that the court will order the spouse to pay applicant's attorney fees, shall be prima facie ineligible for ILS representation unless the applicant either (1) has no knowledge of the whereabouts of his/her spouse, or (2) s/he has a spouse beyond the jurisdiction of the Indiana courts.
An applicant who is seeking to establish a guardianship or is the prospective guardian in a guardianship proceeding must satisfy the following guidelines for ILS representation.
- The prospective ward and the prospective guardian meet ILS income eligibility rules.
- ILS will not represent a prospective guardian in cases in which:
- other legal representation is available to the prospective guardian;
- the guardianship is contested by the ward;
- less restrictive alternatives to guardianship (e.g., power of attorney, representative payeeship) are appropriate; or
- the casehandler is not satisfied that the prospective guardian is fit to represent the prospective ward's interests.
- If the above guidelines are met and the prospective ward is under 14, ILS can represent the prospective guardian. However, if the prospective ward is 14 or older, the following additional steps must be taken:
- Before the case is formally accepted, the ILS staff person must have a face-to-face meeting with the prospective ward to determine whether the prospective ward is capable of asserting her/his needs for legal assistance.
- If the prospective ward is capable of asserting this need, ILS will not represent the prospective guardian.
- However, ILS can represent the prospective ward at her/his request. For example, in cases in which a guardianship is needed to enroll a person in school and the prospective ward is over age 14, ILS can represent the prospective ward.
- The ILS staff person assigned to the case must acquire as much objective data about the condition of the prospective ward as is feasible (e.g., from doctors, medical records, nursing home personnel). If there is a medical determination that the prospective ward is likely to recover from the illness or disability which is currently causing the incompetence, ILS will not represent the prospective guardian.
- If ILS does represent the prospective guardian, the casehandler must give formal service of process to the prospective ward and must give the prospective ward notice of her/his right to be represented and of her/his right to request that the court appoint an attorney to represent her/him. In addition, the casehandler must request that the Court appoint a Guardian ad Litem for the prospective ward.
- Before the case is formally accepted, the ILS staff person must have a face-to-face meeting with the prospective ward to determine whether the prospective ward is capable of asserting her/his needs for legal assistance.
- Exceptions to or waiver of these guidelines can be made only with the prior approval of the Executive Director or his designee.
F. De Minimus Cases
An applicant, otherwise eligible for ILS service, who is seeking representation in cases wherein the actual amount of damages sought in affirmative actions, counterclaims, cross-claims, set-offs, and third party complaints are de minimus, shall be prima facie ineligible.
Such an applicant may be referred to a small claims court by an ILS interviewing attorney for the purpose of representing him/herselfpro se, but only after the ILS attorney:
- determines that the issues of the applicant's case are not complex;
- determines that the opposing party is not represented by legal counsel;
- determines that the applicant has the apparent capacity and capabilities of representing him/herself;
- advises the applicant of the procedures for filing pleadings and documents with the Division of Small Claims Court; and
- provides the applicant, when necessary, with paralegal and other assistance to insure that the proper and appropriate steps are taken by the applicant to file the pleadings and documents with the Division of the Small Claims Court.
If the opposing party secures legal counsel after the applicant has been referred by ILS to the Division of Small Claims Court and the referred applicant is representing him/herselfpro se, the referred applicant may return to ILS for legal representation and receive such representation if otherwise eligible for ILS services.
See Section IV of these guidelines.
H. Criminal Related Matters
An applicant shall be ineligible if s/he is seeking legal assistance with respect to any criminal proceeding, or in civil actions when the applicant has been convicted of a criminal charge where the civil action arises out of alleged acts or failures to act and the action is brought against an officer of the court or against a law enforcement official for the purpose of challenging the validity of criminal conviction.
An eligible unemancipated applicant shall be prima facie ineligible for representation in a delinquency proceeding if there exists, in the county where such applicant resides or is charged with a juvenile offense, a juvenile public defender program.
J. School Desegregation
An applicant seeking legal assistance with respect to any proceeding or litigation relating to the desegregation of any elementary or secondary school or school system shall be ineligible.
An applicant seeking legal assistance with respect to any proceeding or litigation which seeks to procure a non-therapeutic abortion or to compel any individual or institution to perform an abortion, or to assist in the performance of an abortion, or to provide facilities for the performance of an abortion, contrary to the religious beliefs or moral convictions of such individual or institution shall be ineligible.
L. Armed Services
An applicant seeking legal assistance with respect to any proceeding or litigation arising out of a violation of the Military Selective Service Act or of desertion from the Armed Forces of the United States shall be ineligible.
An alien applicant who is not eligible under 45 CFR 1626 shall be ineligible. See Section 220.00 of the Legal Work Management Manual for instructions on determining alien eligibility.
An applicant seeking assistance to revise a legislative, judicial, or elective district at any level of government shall be ineligible. See 45 CFR 1632.
O. Eviction from Public Housing
An applicant seeking assistance to defend the applicant from being evicted from a public housing project shall be ineligible if:
- The applicant has been charged with or has been convicted of the illegal sale, distribution, or manufacture of a controlled substance, or possession of a controlled substance, or possession of a controlled substance with the intent to sell or distribute; and
- The eviction proceeding is brought by a public housing agency on the basis that the illegal drug activity for which the person has been charged or for which the person has been convicted threatens the health or safety of other tenants residing in the public housing project or employees of the public housing agency.
See 45 CFR 1633.
An applicant who is incarcerated in a federal, state, or local prison who is seeking assistance in any litigation or who is seeking assistance in an administrative proceeding challenging the conditions of incarceration shall not be eligible for assistance. See 45 CFR 1637.
Q. Assisted Suicide, Euthanasia, and Mercy Killing
An applicant who seeks assistance to cause or assist in causing the suicide, euthanasia, or mercy killing of any individual shall not be eligible for assistance. See 45 CFR 1643.
1. An applicant, otherwise ineligible, may be provided legal assistance pursuant to programs approved by the Board of Directors and supported by funds from a source other than the Legal Services Corporation if the assistance is otherwise permissible under applicable law and regulation. Cases prohibited under Subsections J through Q, above, cannot be handled by ILS even if other funding is available. See 45 C.F.R. 1611.4(a).
2. From time to time, judges seek to appoint ILS casehandlers to provide representation to indigent parties in civil cases or to serve as guardians ad litem for incompetent parties in civil cases. Frequently, but not always, these are cases in which the party has an absolute or qualified right to appointed counsel or to the assignment of a guardian ad litem.
Given ILS's limited resources, it recognizes that service as appointed counsel or guardian ad litem detracts from the resources of the program to serve other needy clients and the ability of the program to make its own case acceptance decisions. It also recognizes that ILS attorneys, like the practicing bar in general, have an obligation as officers of the court to serve the courts when called upon to do so.
It is ILS's policy to accept appointments as counsel or guardians ad litem in civil cases on the same basis as described in the Legal Services Corporation Regulation on appointments as counsel in criminal cases. 45 C.F.R. Section 1613.4(a). Specifically, such appointments will be accepted when ILS's attorneys are called upon to provide the service as part of a plan administered by the appointing court that calls upon all lawyers practicing in the relevant jurisdiction to fulfill similar obligations on an equal basis.
Applicants who are ineligible shall be referred in accordance with section VIII of these guidelines.
A. ILS may provide legal assistance to a group, corporation, association or other organization if it provides information showing that it lacks and has no practical means of obtaining funds to retain private counsel and either:
- The group, or for a non-membership group the organizing or operating body of the group, is primarily composed of individuals who would be financially eligible for LSC-funded legal assistance; or
- The group has as a principal activity the delivery of services to those persons in the community who would be financially eligible for LSC-funded legal assistance and the legal assistance sought relates to such activity.
- In order to make a determination that a group, corporation, association or other entity is eligible for legal services as required by paragraph (a) of this section, ILS shall consider the resources available to the group, such as the group's income and income prospects, assets and obligations and either:
- For a group primarily composed of individuals who would be financially eligible for LSC-funded legal assistance, whether the financial or other socioeconomic characteristics of the persons comprising the group are consistent with those of persons who are financially eligible for LSC-funded legal assistance; or
- For a group having as a principal activity the delivery of services to those persons in the community who would be financially eligible for LSC-funded legal assistance, whether the financial or other socioeconomic characteristics of the persons served by the group are consistent with those of persons who are financially eligible for LSC-funded legal assistance and the assistance sought relates to such activity of the group.
- ILS shall collect information that reasonably demonstrates that the group, corporation, association or other entity meets the eligibility criteria set forth herein.
C. The eligibility requirements set forth herein apply only to legal assistance supported by funds from LSC, provided that any legal assistance provided, regardless of the source of funds supporting the assistance, must be otherwise permissible under applicable law and regulation.
If a client becomes financially ineligible through a change in circumstances which is sufficiently likely to continue so that the client may afford private legal assistance, consistent with an attorney's professional responsibilities, ILS may discontinue representing the client. Prior to such discontinuance, ILS must provide the client with at least ten (10) days written notice of such a proposed discontinuance. Referral may be made in accordance with section VIII of these eligibility rules.
An applicant who is ineligible or a client who becomes ineligible, in accordance with Section VII of these eligibility rules, shall be referred in the following manner:
- If the applicant (a) is financially ineligible; (b) has a fee generating case; or (c) has a case of a type in which ILS may not provide legal assistance, the applicant shall be referred to the local bar association referral system (if there is such a system) or in any other manner established by ILS and the appropriate bar associations.
- Applicants who are ineligible because of Section V, paragraph B (support and paternity) of these guidelines may be referred to the local prosecutor's office.
- Defendants in criminal and juvenile court proceedings may be referred to the appropriate public defender program if one exists.
- A student shall be referred to the appropriate agency if the case is of a type in which it provides legal assistance.
1. Any applicant who is ineligible due to a fee-generating case and who, after being appropriately referred, is rejected or not accepted by two private attorneys via the above referral may be accepted by ILS if otherwise eligible.
2. Any applicant who is ineligible due to the student provision (Section V(A) of these guidelines) and who, after being appropriately referred, is rejected or not accepted by the organization may be accepted by ILS if otherwise eligible.
1. ILS shall not disclose, without written consent of the applicant, any information furnished to ILS by the applicant to establish financial eligibility to any person not employed by ILS that permits identification of the client, except that ILS shall provide such information to the Corporation when:
- The Corporation is investigating allegations that question the financial eligibility of a previously identified client and ILS's representation thereof;
- The information sought by the Corporation relates solely to the financial eligibility of that particular client;
- The information sought by the Corporation is necessary to confirm or deny specific allegations relating to that particular client's financial eligibility and ILS's representation thereof; and
- The specific information sought by the Corporation is not protected by the attorney-client privilege or the release of such information does not otherwise violate the Rules of Professional Conduct as determined by ILS.
2. If there is substantial reason to doubt the accuracy of the information furnished by an applicant to establish eligibility, ILS shall make appropriate inquiry, in a manner consistent with an attorney-client relationship, in order to verify it.
Any applicant who is denied legal services by ILS shall be informed that such denial may be reviewed, in accordance with the ILS Client Grievance Procedure. Upon appeal, the Executive Director shall consider:
- the age and physical condition of the applicant and members of the applicant's household;
- the cost of obtaining private counsel;
- the consequences to the applicant if services are denied;
- other factors related to financial inability to afford legal assistance; and
- whether adequate staff time and resources are available to provide the requested services.
If the applicant is dissatisfied with the decision of the Executive Director, the Executive Director shall inform the applicant of the applicant's right to have such decision reviewed by the ILS Board's Standing Grievance Committee. The Committee, upon the applicant's request, shall review the decision of the Executive Director, and the Committee's decision shall be final.
1. Each client who receives legal services from ILS shall execute a written retainer agreement, in a form approved by the Corporation. The retainer agreement shall be executed when representation commences (or, if not possible owing to an emergency situation, as soon thereafter as is practicable), and shall clearly identify the relationship between the client and ILS, the matter in which representation is sought, the nature of the legal services to be provided, and the rights and responsibilities of the client. The executed retainer agreement shall be retained as a part of the client's file.
2. A written retainer agreement need not be executed by the client when the only service to be provided is brief advice and consultation.
Revised: December 9, 2005