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QUESTION PRESENTED

Wyoming law provides an individual facing civil commitment with the right to appointed counsel if he or she is indigent. Where the government contracts with an LSC recipient to provide representation in these civil commitment proceedings, does the representation constitute a “separately funded public defender program or project” under 45 C.F.R. § 1610.6(a)?

BRIEF ANSWER

Yes. Section 1610.6(a) states that certain LSC restrictions do not apply to a recipient’s “separately funded public defender program or project[.]” As explained in Advisory Opinion 2016-005, the phrase “separately funded public defender programs or projects” includes situations in which the government commits to providing a defender service and contracts with an LSC recipient to provide those services. The government commits to providing a defender service where the law provides individuals facing civil commitment with the same right to counsel as individuals facing criminal prosecution.

In this case, Wyoming law provides individuals facing civil commitment with the right to appointed counsel if the individual is indigent. Pursuant to a contract with Laramie County, Legal Aid of Wyoming (LAW) provides these services. Accordingly, LAW’s representation pursuant to the contract and under this law constitutes a “separately funded public defender program or project.” As a result, under section 1610.6(a), certain LSC restrictions do not apply to this representation.

FACTUAL BACKGROUND

Under Wyoming law, a person may be detained when a law enforcement officer or examiner.[fn]  For purposes of involuntary commitment, Wyoming law defines “examiner” as “a licensed psychiatrist, a licensed physician, an advanced practice registered nurse with a clinical specialty in psychiatric and mental health nursing working in collaboration with a licensed physician, a licensed psychologist, a licensed professional counselor, a licensed addictions therapist, a licensed clinical social worker or a licensed marriage and family therapist. For purposes of emergency detention proceedings only, ‘examiner’ includes a licensed physician's assistant.” Wyo. Stat. Ann. §§ 25-10-101(iv).[/fn] believes the person is mentally ill, defined as “a physical, emotional, mental or behavioral disorder which causes a person to be dangerous to himself or others and which requires treatment[.]” Wyo. Stat. Ann. §§ 25-10-101(ix), -109(a). When detained, the person must be informed of “his right to contact . . . an attorney, of his right to appointed counsel if he is indigent, of his right to remain silent and that his statements may be used as a basis for continued detention, directed outpatient commitment[,] or involuntary hospitalization.” Id. § 25-10-109(g).

Pursuant to a contract for representation in these commitment proceedings, Laramie County courts refer individuals facing involuntary commitment to LAW. Many of these individuals referred to LAW have severe mental impairments and cannot attest to their citizenship or alien status as required by 45 C.F.R. Part 1626. At the end of each month, Laramie County pays LAW $100 per hour for its services, and LAW uses part of this money to fund the services provided in the next month.

APPLICABLE AUTHORITY

Part 1626 of LSC’s regulations requires a recipient to obtain documentation of U.S. citizenship or eligible alien status from potential clients. . Section 1610.6 of LSC’s regulations, however, exempts from this requirement “[a] recipient’s . . . separately funded public defender program or project[.]” .

In an Advisory Opinion issued September 9, 2016, the Office of Legal Affairs reviewed an LSC 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 (Sept. 9, 2016) (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, the state paid the recipient to represent the adults. Id.

In that opinion, 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 LSC funding recipient.” Id. We concluded that because the New Jersey law “provides individuals facing civil commitment with the same right to be represented by an attorney as individuals facing criminal prosecution[,]” the recipient was “plainly carrying out a ‘public defender’ function[.]” Id. Accordingly, under § 1610.6(b), the recipient’s representation in these civil commitment proceedings was exempt from the requirements of Parts 1613, 1615, 1626, and 1637. Id.

ANALYSIS

Wyoming law provides an individual facing civil commitment with a right to appointed counsel if he or she is indigent. Pursuant to a contract to provide this representation, Laramie County pays LAW to represent these individuals. In AO-2016-005 (Sept. 9, 2016), we reviewed a case presenting similar circumstances: state law provided indigent individuals facing civil commitment with the right to a government-funded attorney, and the state provided the attorneys via a contract with an LSC recipient.

Unlike in New Jersey, where the state public defender represented some of the individuals facing civil commitment, it appears that the government chose to contract out all defense services to LAW. Regardless of whether the government contracts out all or only part of these services, defense representation in a commitment proceeding where the government commits to provide counsel to the indigent is a public defender function. Where this representation is separately funded, i.e., no LSC funds are used, a recipient qualifies for the exemption in § 1610.6(a). Accordingly, the prohibitions identified in Part 1610, including Part 1626’s citizenship and alienage requirements, do not apply to LAW’s representation in these circumstances.

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

STEFANIE K. DAVIS
Assistant General Counsel

BLAIR L. GILBERT
Graduate Fellow