BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 2764|
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                                 THIRD READING


          Bill No:  AB 2764
          Author:   Assembly Judiciary Committee 
          Amended:  8/2/10 in Senate
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  4-0, 6/29/10
          AYES:  Corbett, Harman, Hancock, Leno
          NO VOTE RECORDED:  Walters
           
          ASSEMBLY FLOOR  :  71-1, 5/13/10 - See last page for vote


           SUBJECT  :    State Bar Act:  fees

           SOURCE  :     State Bar of California


           DIGEST  :    This bill authorizes the State Bar of California  
          to collect active membership dues of up to $410 for the  
          year 2011, which would continue the current active dues  
          amount of $410.  Consistent with existing law, those dues  
          would fund only mandatory programs of the State Bar, and  
          members can deduct $5 if they did not wish to support  
          lobbying and other legislative activities.  Members can  
          also deduct an additional $5 if they did not wish to fund  
          access and elimination of bias programs.  

           ANALYSIS  :    Existing law requires all attorneys who  
          practice law in California to be members of the State Bar  
          and establishes the State Bar for the purpose of regulating  
          the legal profession.  Pursuant to the State Bar Act, the  
          annual mandatory membership fee set by the State Bar's  
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          Board of Governors (Board) to pay for discipline and other  
          functions must be ratified by the Legislature.  (Section  
          6000 et seq. of the Business and Professions Code [BPC])

          Existing law authorizes the State Bar to collect $315 in  
          annual membership fees from active members for a total  
          annual dues bill of $410 for the year 2010.  (BPC Section  
          6140)  The other $95 is pursuant to statutory authorization  
          to assess annually the following fees: 

           $40 for the Client Security Fund (BPC Section 6140.55).

           $25 for disciplinary activities (BPC Section 6140.6).

           $10 to fund the Lawyer Assistance Program (BPC Section  
            6140.9).

           $10 special assessment to fund information technology  
            upgrades (expires January 1, 2011) (BPC Section 6140.35).

           $10 for the Building Fund (expires January 1, 2014) (BPC  
            Section 6140.3). 

          Existing law authorizes the State Bar to collect $75 in  
          annual membership fees from inactive members for a total  
          annual dues bill of $125 for the year 2010.  (BPC Section  
          6141)  The other $50 is pursuant to statutory authorization  
          to assess annually the following fees: 

           $10 for the Client Security Fund (BPC Section 6140.55).
           $25 for disciplinary activities (BPC Section 6140.6).
           $5 to fund the Lawyer Assistance Program (BPC Section  
            6140.9).
           $10 for the Building Fund (expires January 1, 2014) (BPC  
            Section 6140.3).

          Existing case law,  Keller v. State Bar of California  (1990)  
          496 U.S. 1, prohibits the use by the State Bar of mandatory  
          dues to fund political and ideological activities, as a  
          violation of a member's First Amendment freedom of speech  
          rights, where such expenditures were not necessarily or  
          reasonably incurred for the purpose of regulating the legal  
          profession or improving the quality of the legal services  
          available to the people of the state.  Existing law allows  







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          members to deduct up to $10 from the mandatory dues if the  
          member does not wish to fund legislative activities and  
          non-  Keller  lobbying and activities with his/her dues.  (BPC  
          Section 6140.05,  Keller v. State Bar of California  (1990)  
          496 U.S. 1)

          This bill authorizes the State Bar to collect active  
          membership dues of up to $410 for the year 2011.

          Existing law provides that the Board may increase the  
          annual membership fee fixed by Section 6140 by an  
          additional amount not exceeding $10.  This additional  
          amount may be used only for the costs of upgrading the  
          board's information technology system, including purchasing  
          and maintenance costs and both computer hardware and  
          software.  This special assessment for information  
          technology upgrades shall be separately listed and  
          described in the annual membership fee invoice, which shall  
          include notice of the repeal of this section on January 1,  
          2011.

          This bill extends that sunset until January 1, 2014, and,  
          as of that date, is repealed.

          Existing law requires the Board to report to the Assembly  
          Judiciary Committee and the Senate Judiciary Committee on  
          or before April 1, 2009, and on or before April 1 of the  
          succeeding two years, on the use of the funds authorized  
          pursuant to Section 6140.35. 

          This bill extends that date until 2011, and extends the  
          sunset date from January 1, 2012, until January 1, 2014. 

           Background  

           Recent embezzlement and Bar's response  .  On April 6, 2009,  
          the Attorney General filed embezzlement and tax evasion  
          charges against Sharon Pearl, the Bar's former Director of  
          Real Property (DRP).  Pearl embezzled Bar funds over a  
          period of eight years, and estimates of the loss ranged  
          from $655,000 to $675,820.  In response to the incident,  
          Laura Chick, Chair of the State Bar Board of Governors'  
          Audit Committee, submitted a six-page letter to the Chairs  
          and Vice Chairs of the Senate and Assembly Judiciary  







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          Committees explaining how the embezzlement occurred and  
          describing the Bar's response to the incident.  According  
          to the letter:

            The [Bar's internal] investigation determined that the  
            DRP diverted tenants' payments for rent and fees to a  
            non-State Bar account over which she had control, and hid  
            the non-receipt of those payments by manipulating  
            information about expected rent revenue and falsifying  
            documentation supporting rent credits for various tenant  
            renovations or service interruptions due to the Bar's  
            seismic retrofit project.  . . .  She used her position  
            to become the single point of contact between the State  
            Bar and its tenants; she verified the rent payment  
            schedules prepared by the Office of Finance; and she was  
            personally responsible for both issuing invoices to  
            tenants and collecting rent checks from them.  This,  
            ultimately, was the point of failure in the internal  
            controls over rent billing and collection, as the DRP was  
            able to divert rent payments while providing plausible  
            explanations for their absence to the Office of Finance,  
            and to the Bar's independent auditors (Deloitte & Touche)  
            during the annual financial audit. 

          After the incident came to light, the State Bar hired a  
          certified public accounting firm specializing in local  
          governments to perform an independent forensic review and  
          make recommendations for improvements to the internal  
          controls relating to rent billing and collection  
          procedures.  As a result, according to the letter, the Bar  
          has taken a number of actions to improve rent billing and  
          collection procedures including:

          1. The Office of General Counsel prepared a lease profile  
             for each tenant, clearly outlining all lease terms and  
             conditions.

          2. The Office of Operations prepared a rent income schedule  
             for each tenant, listing the expected rent, by month,  
             for the entire term of the lease.

          3. Leases, lease profiles, rent income schedules, and all  
             relevant supporting documents related to tenants have  
             been jointly verified and signed-off by the State Bar's  







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             Offices of Operations, Finance, and General Counsel and  
             are jointly accessible to all three in a secure location  
             on the State Bar's network.  This change ensures  
             appropriate checks and balances, as no single department  
             or individual employee has a monopoly on information;  
             lease terms and expected revenues are verifiable and any  
             deviations are transparent.

          4. The Office of Finance now invoices tenants directly,  
             based on the rent schedules that have been loaded into  
             the accounting system.  Tenants have been instructed to  
             mail rent checks directly to the Office of Finance.  The  
             Bar is also exploring the possibility of collecting rent  
             payments via electronic funds transfer from tenants.
           
          5. The State Bar will explore the possibility of engaging a  
             professional property management company.

           Prior legislation  .  SB 641 (Corbett), 2009-10 Session,  
          which would have authorized annual State Bar membership  
          dues for 2010, passed the Senate (39-0) on May 26, 2009,  
          but was vetoed.  In his veto message, the Governor stated:   


            "I am returning Senate Bill 641 without my signature.   
            This bill would, among other provisions, authorize the  
            State Bar to collect annual bar dues from its members for  
            2010.

            "In 1997, Governor Pete Wilson vetoed the annual State  
            Bar dues bill, citing numerous concerns that the State  
            Bar had become overly political, unresponsive to its  
            membership, and inefficient.  Unfortunately, twelve years  
            later, inefficiencies remain unaddressed and questions  
            about the State Bar's role in the evaluation of judicial  
            nominees suggest that the State Bar's political agenda  
            continues.

            "In July, the State Auditor released a report critical of  
            the State Bar.  Among the problems noted by the report:  
            salaries for staff have risen significantly over the past  
            five years; the costs of its disciplinary system have  
            escalated by $12 million from 2004 to 2008 while the  
            number of disciplinary inquiries opened has declined; and  







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            a lack of internal controls allowed the embezzlement of  
            nearly $676,000 by a former employee.  As the  
            organization charged with regulating the professional  
            conduct of its members, the conduct of the State Bar  
            itself must be above reproach.  Regrettably, it is not.

            "In addition, recent actions by the State Bar's Judicial  
            Nominees Evaluation Commission (JNE) also call into  
            question the State Bar's impartiality in considering  
            judicial appointments.  All JNE Commission proceedings  
            are required by law to be confidential and qualification  
            ratings are not to be released to the public prior to the  
            Governor considering an appointment.  Unfortunately,  
            recent events have required the State Bar to launch an  
            official inquiry into the confidentiality of such  
            proceedings.  Moreover, the Chief Justice of the Supreme  
            Court has recently questioned the reliability of the  
            Commission's recommendations by noting its failure to  
            follow statutory guidelines when considering judicial  
            nominees.  By failing to follow the law, the JNE  
            Commission has damaged its reputation for impartiality  
            and, in turn, the State Bar's.

            "There is no question the State Bar has an essential role  
            in the state's justice system and must continue to  
            oversee the licensing, education, and discipline of  
            California's lawyers.  However, I am returning this bill  
            without my signature because the State Bar cannot  
            continue with business as usual.  It must take the time  
            to reexamine the problems noted by the State Auditor and  
            continue its investigation into the JNE Commission.  I  
            urge the State Bar to resolve these issues as soon as  
            possible so the Legislature can reintroduce this measure  
            early next year."

          In response to the veto, State Bar President Howard Miller  
          stated, "The Governor's veto of the State Bar dues bill is  
          regrettable, but we must take the Governor's concerns  
          seriously.  Many of them are justified.  There have been  
          serious management and financial issues at the State Bar,  
          starting with the embezzlement by a single employee over an  
          eight-year period of $675,000.  The State Auditor, and  
          others, have also criticized with precision the management  
          of the Office of Chief Trial Counsel.  We will look closely  







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          at these and all other issues raised by the Governor.   
          Events such as his veto message can challenge the State Bar  
          to renew itself as an institution and its service to the  
          public and the legal profession.  I am confident the Board  
          of Governors is up to that challenge."

          In January 2010, the Legislature passed and the Governor  
          signed SB 55 (Corbett), Chapter 2, Statutes of 2010,  
          authorizing the State Bar to collect annual membership dues  
          for 2010.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  No    
          Local:  No

           SUPPORT  :   (Verified  7/8/10)

          State Bar of California (source)


           ARGUMENTS IN SUPPORT  :    According to the California State  
          Bar, this bill continues the State Bar's authority to  
          assess and collect dues from licensed attorneys in  
          California in order to support the Bar's operations,  
          including discipline.  This bill authorizes the Bar to  
          continue to collect active membership dues of up to $410  
          for the year 2011, maintaining 2010 dues levels.  The  
          author's office notes that, consistent with existing law,  
          those dues would fund only mandatory programs of the Bar,  
          and members will continue to be able to deduct $5 if they  
          do not wish to support lobbying and other legislative  
          activities.  This bill also extends the sunset on the $10  
          special assessment to fund information technology upgrades  
          which expires January 1, 2011. 


           ASSEMBLY FLOOR  : 
          AYES: Adams, Ammiano, Arambula, Bass, Beall, Bill  
            Berryhill, Tom Berryhill, Blakeslee, Block, Blumenfield,  
            Bradford, Brownley, Buchanan, Charles Calderon, Carter,  
            Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,  
            Emmerson, Eng, Evans, Feuer, Fletcher, Fong, Fuentes,  
            Fuller, Furutani, Gaines, Galgiani, Garrick, Gilmore,  
            Hall, Harkey, Hayashi, Hernandez, Hill, Huber, Huffman,  
            Jeffries, Jones, Knight, Lieu, Logue, Bonnie Lowenthal,  







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            Ma, Mendoza, Monning, Nava, Nestande, Niello, Norby, V.  
            Manuel Perez, Portantino, Ruskin, Salas, Saldana, Smyth,  
            Solorio, Audra Strickland, Swanson, Torlakson, Torres,  
            Torrico, Tran, Villines, Yamada, John A. Perez
          NOES: Anderson
          NO VOTE RECORDED: Caballero, DeVore, Hagman, Miller,  
            Nielsen, Silva, Skinner, Vacancy


          RJG:mw  7/9/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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