15VAC5-10 Regulations Governing Virginia Legal Aid Societies

REGULATIONS

Vol. 32 Iss. 13 - February 22, 2016

TITLE 15. JUDICIAL

VIRGINIA STATE BAR

Chapter 10

Final Regulation

REGISTRAR'S NOTICE: The Virginia State Bar is claiming an exemption from the Administrative Process Act in accordance with § 2.2-4002 A 2 of the Code of Virginia, which exempts courts, any agency of the Supreme Court, and any agency that by the Constitution is expressly granted any of the powers of a court of record.

Title of Regulation: 15VAC5-10. Regulations Governing Virginia Legal Aid Societies (amending 15VAC5-10-10).

Statutory Authority: § 54.1-3916 of the Code of Virginia.

Effective Date: March 23, 2016.

Agency Contact: Stephanie G. Blanton, Executive Assistant, Virginia State Bar, 1111 East Main Street, Suite 700, Richmond, VA 23219, telephone [phone] or email [e-mail].

Summary:

The amendments revise the requirements to become a licensed legal aid society, clarify the reporting obligations of legal services providers holding themselves out to the public as "legal aid societies" or "legal aid" in Virginia, and allow sanctions against organizations misleading the public through the use of unauthorized naming and service description practices.

15VAC5-10-10. Function and operation of legal aid societies.

The bar recognizes the need to provide equal access to the system of justice in the Commonwealth for individuals who seek redress of grievances, to provide high quality legal assistance to those who would otherwise be unable to afford adequate legal counsel, to preserve attorney-client relationships, and to protect the integrity of the adversary process.

1. The function of a legal aid society is to provide free legal assistance to those requiring such assistance but who are unable to pay therefor.

2. Only a nonprofit corporation can function as a legal aid society in the Commonwealth.

3. A legal aid society is defined as a nonprofit organization providing free legal assistance exclusively to those requiring such assistance but who are unable to pay therefor.

4. No legal aid society can function in the Commonwealth without being licensed by the Secretary-Treasurer of the Virginia State Bar.

5. Upon application of a legal aid society, with supporting documents, the Secretary-Treasurer of the Virginia State Bar shall issue a license if:

a. The State Corporation Commission has issued a certificate of incorporation to the society.

b. A majority of the members of the society's Board of Directors are active members of the Virginia State Bar.

c. No member of the Virginia State Bar devoting his full time to, or receiving any compensation from, the society shall be a voting member of its board.

d. The provisions of subdivisions 5 b and c shall be included in the bylaws of the society at all times.

6. No payment for the provision of legal assistance shall be received from clients by the society or its employees, except for necessary expenses or court costs.

7. Guidelines and procedures shall be established and maintained to insure that legal assistance is provided only to those who are unable to pay therefor. Legal assistance to elderly persons meeting standards of eligibility under the Older Americans Act and regulations thereto is deemed consistent with this requirement.

8. A legal aid society may appear before and practice in all the courts, administrative agencies and legislative bodies of the Commonwealth and all political subdivisions thereof, only through attorneys who are members of the Virginia State Bar or other persons who are permitted by law to so appear and practice.

9. A legal aid society holding a license issued by the Secretary-Treasurer of the Virginia State Bar is deemed to be approved by the Virginia State Bar. Each licensee shall make an annual report and file it with the Secretary-Treasurer of the Virginia State Bar. The annual report shall contain the following information:

a. Source of funding

b. Cost of operation

c. Number of cases handled

d. Type of cases handled

e. Number of lawyers employed and/or assisting

f. Any changes in the Articles of Incorporation or bylaws made since the last annual report.

10. A license shall be revoked by the Secretary-Treasurer of the Virginia State Bar on his own motion or on the motion of any other person if it is found, after investigation and after giving the licensee reasonable notice and an opportunity to be heard, that the licensee has violated the law, the Code of Professional Responsibility or these regulations, or has been inactive for a period of one year or more or has failed to adhere to its charter or bylaws.

1. A nonprofit organization qualifying as a tax exempt entity under § 501(c)(3) of the Internal Revenue Code may apply to be a licensed legal aid society in the Commonwealth if its primary purpose is to provide free legal assistance exclusively to those requiring such assistance but who are unable to pay for it.

2. No person, organization, or corporation shall define itself or hold itself out to the public as a legal aid society in the Commonwealth without being licensed by the Secretary-Treasurer of the Virginia State Bar.

3. Upon application of a nonprofit organization seeking to become a licensed legal aid society, with supporting documents, the Secretary-Treasurer of the Virginia State Bar shall issue a license if:

a. The State Corporation Commission has issued a certificate of incorporation to the applicant.

b. A majority of the members of the applicant's board of directors are active members of the Virginia State Bar.

c. No member of the Virginia State Bar devoting his full time to or receiving any compensation from the applicant shall be a voting member of its board.

d. The provisions of subdivisions 3 b and 3 c of this section shall be included in the bylaws of the applicant at all times.

e. The applicant has submitted a copy of its Internal Revenue Service determination letter.

f. The applicant provides for the prior fiscal year, if applicable, an acceptable audit conducted under standards set by the American Institute of Certified Public Accountants.

g. The applicant provides proof of acceptable professional liability insurance coverage for its operations that meets or exceeds an aggregate sum determined annually by the Virginia State Bar inclusive of coverage in the amount of $250,000 per claim for lawyers who provide client legal services under the auspices of the program.

4. No fee for the provision of legal assistance shall be requested or received from clients by the licensed legal aid society or its employees, except for necessary expenses or costs.

5. A licensed legal aid society shall establish and maintain guidelines and procedures to ensure that legal assistance is provided only to those who are unable to pay for it. Legal assistance to persons meeting standards of eligibility under 42 USC § 2996 et seq. (Title X - Legal Services Corporation Act) and associated regulations is deemed consistent with this requirement.

6. A licensed legal aid society may appear before and practice in all the courts, administrative agencies, and legislative bodies of the Commonwealth and all political subdivisions thereof only through attorneys who are members of the Virginia State Bar or other persons who are permitted by law to so appear and practice.

7. A legal aid society holding a license issued by the Secretary-Treasurer of the Virginia State Bar is deemed to be an approved licensee. Each licensee shall make an annual report and file it with the Secretary-Treasurer of the Virginia State Bar within 90 days of the conclusion of the bar's fiscal year. The annual report shall contain the following information:

a. Source of funding;

b. Cost of operation;

c. Number of cases handled;

d. Type of cases handled;

e. Staffing, providing the number and title of all employees and the number of volunteer attorneys assisting within the period covered by the report;

f. Change in the articles of incorporation or bylaws made since the last annual report;

g. Current roster of the members of the board of directors indicating vacancies, names of appointing authorities, and each member's bar or lay statuses;

h. Audit conducted in accordance with generally accepted auditing standards of the American Institute of Certified Public Accountants, which shall be submitted within 180 days of the conclusion of the licensee's fiscal year;

i. Proof of required professional liability coverage and timely notice to the bar during the course of the year of any lapse or denial in coverage; and

j. Client eligibility guidelines.

8. A license shall be revoked by the Secretary-Treasurer of the Virginia State Bar on his own motion or on the motion of any other person if it is found, after investigation and after giving the licensee reasonable notice and an opportunity to be heard, that the licensee (i) has committed a substantial and material violation of law, its charter or bylaws, or this chapter; or (ii) has been inactive for a period of one year or more.

11. 9. From any decision of the Secretary-Treasurer of the Virginia State Bar in (i) granting, or (ii) refusing or; (iii) revoking, or (iv) refusing to revoke a license, any interested person may appeal to the Council of the Virginia State Bar.

12. The Council of the Virginia State Bar reserves the right to amend these regulations from time to time.

VA.R. Doc. No. R16-2753; Filed January 26, 2016, 1:09 p.m.