BILL ANALYSIS Ó
AB 1865
Page 1
Date of Hearing: April 10, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1865 (Alejo) - As Amended: April 9, 2012
SUBJECT : RESIDENTIAL TENANCIES: EVICTIONS: NOTICES
KEY ISSUE : SHOULD THE COURT NOTICE SENT TO ALL DEFENDANTS UPON
THE FILING OF AN EVICTION CASE INCLUDE ADDITIONAL CONTACT
INFORMATION FOR ONE OR MORE NONPROFIT BAR ASSOCIATIONS, IF
AVAILABLE, THAT PROVIDE LEGAL SERVICES TO PERSONS IN THE COURT
WHERE THE ACTION IS FILED?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, sponsored by the Conference of California Bar
Associations, seeks to require the mandatory court notice sent
to each defendant in an unlawful detainer action to contain, in
addition to name and phone number of the county bar association,
the name and telephone number of one or more nonprofit bar
associations, if available, that provides legal services to
persons in the court where the action is filed. In addition,
only associations that are duly authorized by the State Bar as a
lawyer referral service (LRS) would be eligible to appear on the
court notice. Supporters of the bill contend that existing law
unnecessarily restricts the court from including more
information about qualified lawyer referral services available
to tenants on the court notice that is sent to tenants facing
eviction. LRS are regulated both by Section 6155 of the
Business & Professions Code, and by a detailed set of State Bar
Rules and Regulations to ensure that they comply with minimum
professional standards or else face losing certification by the
Bar. The bill is opposed by several apartment associations, who
express concern that this bill will result in more referrals of
tenants to lawyers who do not understand unlawful detainer law,
thus producing unjustified delays in the expedited eviction
process.
SUMMARY : Expands court-provided notice to defendants in
eviction cases to provide information about lawyer referral
programs operated by nonprofit local bar associations.
Specifically, this bill requires the mandatory court notice sent
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to each defendant in an unlawful detainer action to contain, in
addition to name and phone number of the county bar association,
the name and telephone number of one or more nonprofit bar
associations, if available, that provides legal services to
persons in the court where the action is filed and that is duly
authorized by the State Bar as a lawyer referral service.
EXISTING LAW :
1)Requires the court clerk, upon the filing of any unlawful
detainer action, to mail to each defendant named in the action
a notice that contains on its face the following:
a) the name and telephone number of the county bar
association; and
b) the name and telephone number of an office or offices
funded by the Legal Services Corporation or qualified legal
service projects that receive funds distributed through the
State Bar program for legal services to indigent persons,
that provide legal services to low-income persons in the
county in which the action was filed. (Code of Civil
Procedure Section 1161.2.)
2)Prohibits a lawyer referral service from being owned or
operated, in whole or in part, directly or indirectly, by
those lawyers to whom, individually or collectively, more than
20 percent of referrals are made. Further provides that a
referral service that is owned or operated by a bar
association shall be deemed to be owned or operated by its
governing committee so long as the governing committee is
constituted and functions in the manner prescribed by the
minimum standards. (Business and Professions Code Section
6155(b).)
3)Requires the State Bar, with the approval of the Supreme
Court, to formulate and enforce rules and regulations which,
among other things, do the following:
a) Establish minimum standards for lawyer referral
services. The minimum standards shall include provisions
ensuring that panel membership shall be open to all
attorneys practicing in the geographical area served who
are qualified by virtue of suitable experience, and
limiting attorney registration and membership fees to
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reasonable sums which do not discourage widespread attorney
membership.
b) Require that an entity seeking to qualify as a lawyer
referral service register with the State Bar and obtain
from the State Bar a certificate of compliance with the
minimum standards for lawyer referral services.
c) Require that, to increase access to the justice system
for all Californians, lawyer referral services establish
separate ongoing activities or arrangements that serve
persons of limited means.
d) Require each lawyer who is a member of a certified
lawyer referral service to comply with all applicable
professional standards, rules, and regulations, and to
possess a policy of errors and omissions insurance, as
specified. (Business and Professions Code Section
6155(f).)
4)Provides that cause for denial of certification, or
recertification, or revocation of certification of a lawyer
referral service shall include, but not be limited to,
noncompliance with the statutes or minimum standards governing
lawyer referral services. (Business and Professions Code
Section 6155(g).)
COMMENTS : This bill, sponsored by the Conference of California
Bar Associations, seeks to require the mandatory court notice
sent to each defendant in an unlawful detainer action to
contain, in addition to name and phone number of the county bar
association, the name and telephone number of one or more
nonprofit bar associations, if available, that provides legal
services to persons in the court where the action is filed. In
addition, only associations that are duly authorized by the
State Bar as a lawyer referral service would be eligible to
appear on the court notice.
Author's Statement : According to the author, existing law
unnecessarily restricts the court from including more
information about legal services available to tenants on the
court notice that is sent to tenants facing eviction. The
author explains the need for the bill as such:
Current law requires the unlawful detainer notice mailed
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to defendants to contain the name and phone number of the
local county bar association (but no more.)
In many large counties, however, there can be several
metropolitan or regional bar associations in the
defendant's city, town or neighborhood, which also
maintain non-profit, fully certified lawyer referral
services which do not solicit clients but respond to
requests for legal assistance, and which may be much more
conveniently located for the defendant client. AB 1865
would authorize the courts providing the notice to include
the name of one or more of these nonprofit bar
associations on the notice, so that defendants can have a
greater selection of lawyer referral services to choose
from.
The sponsor notes, as just one example, that non-profit bar
associations in Glendale and Pasadena are qualified and
available to serve persons facing eviction from properties in
adjacent neighborhoods of Los Angeles, and that such tenants
might benefit from having additional contact information
provided to them through the court notice.
This bill furthers the legislative intent of SB 892 (1991) to
help tenants facing eviction find competent legal
representation. Existing law requires the court notice sent to
tenants facing eviction to provide the name and phone number of
the county bar association, as well as the name and number of
offices or legal service projects, as specified, that provide
legal services to low-income persons in the county in which the
action was filed. This latter requirement ensures that the
notice provide the contact information for at least one legal
services provider serving persons in that area, other than the
county bar association, that is funded by the federal Legal
Services Corporation (LSC) or that receive funds through the
State Bar program for legal services to indigent persons,
pursuant to Business & Professions Code Section 6216. In short,
existing law seems intended to help connect defendants in
unlawful detainer actions to a lawyer who may provide legal
counsel or advice, either through the bar association's
certified lawyer referral service or a LSC-funded or Section
6216-funded legal service provider.
In 1991, the Legislature passed and the Governor signed SB 892
(Lockyer), which enacted many of the provisions of CCP Section
1161.2 to respond to a perceived crisis stemming from
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unscrupulous eviction defense services that used records of
court filings in civil cases to solicit and defraud tenants.
The legislative intent language of SB 892 noted that there "are
many law firms and organizations, such as those funded by the
federal Legal Services Corporation, which provide competent,
thorough, and ethical legal advice and representation to
tenants. These organizations do not find it necessary to
solicit clients at their homes but instead respond to requests
for legal assistance." Legal services programs operated by
local county bar associations were included in the statute
because they met this description. The author contends that
nonprofit bar associations, authorized by the State Bar as a
lawyer referral service, also fit this description and thus the
addition of their contact information to the court notice
furthers the intent of the statute to assist tenants seeking
legal counsel with additional information about resources
available to them.
Requirements for Lawyer Referral Services under the Business &
Professions Code and State Bar Rules. The term "lawyer referral
service" (LRS) means an individual, partnership, corporation,
association, or any other entity, or a service or agency of an
entity, which operates for the direct or indirect purpose of
referring potential clients to lawyers, whether or not the term
"referral service" is used. (Rule 4, "Rules and Regulations of
the State Bar of California
Pertaining to Lawyer Referral Services.") The purposes of a LRS
shall be (1) to provide a way in which any person may be
referred to a qualified, insured lawyer who is able to render
and is interested in rendering needed legal services; (2) to
provide information about lawyers and the availability of legal
services which will aid the public in their selection of a
lawyer; (3) to inform the public when and where to seek legal
and dispute resolution services; (4) to provide general, legal
and dispute resolution information needed by the public; (5) to
improve the quality of legal services available to the public;
and (6) to provide access to affordable legal services to the
public. (Rule 5.1, Ibid.)
A LRS must be comprised of a staff which processes the requests
for legal assistance, a panel of lawyers who provide legal
assistance; and a committee or governing body. (Rule 4.3.) An
entity seeking to qualify as a lawyer referral service must
register with the State Bar and obtain from the State Bar a
certificate of compliance with the minimum standards for lawyer
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referral services. (BPC Section 6155(f).) Certification shall
be renewed at least every two years, and denial of certification
or recertification may occur if the State Bar determines
noncompliance with either statutory requirements or minimum
standards governing LRS. (BPC Section 6155(g).) The governing
committee reviews attorneys for their service area, which is
typically limited to a county. At least 20 attorneys are
required to establish a LRS for a particular service area (Rule
12.6), who are then subcategorized into subject matter panels
(Rule 12.2). LRS must establish rotational procedures to assure
fair and impartial referrals (Rule 13.1), and subject matter
panels require a minimum of four attorneys to ensure a
legitimate rotation (Rule 12.4). Those selected for the subject
matter panel are reviewed by the governing committee, which then
determines whether the member qualifies for that panel, ensuring
that an attorney who is selected has sufficient experience in
that subject matter. All lawyers who are members of a panel
operated by the LRS are required to comply with all applicable
professional standards, rules, and regulations, and to possess a
policy of errors and omissions insurance of at least $100,000
per occurrence and $300,000 aggregate per year. (Business and
Professions Code Section 6155(g).)
ARGUMENTS IN OPPOSITION : This bill is opposed by several
apartment associations, who submitted a joint letter to the
Committee stating their opposition as follows:
Proponents argue that the current law is inadequate, and
that ANY nonprofit bar association with an authorized
referral program should be listed. Consequently, a court,
under the proposed law, may list the name and phone number
of a nonprofit with no ties to experienced attorneys in the
area of unlawful detainer (UD) law. Thus, an attorney with
little or no understanding of the way the UD process works
may receive more work, which may result in undue and
unjustified delays in a process that is supposed to be
expeditious. . . . The bill allows referrals with no
conditions on funding or qualifications. Referrals to
unfunded organizations and attorneys provide even less
assurances that a representative will act diligently and
efficiently.
Inexperienced lawyers may also use unfair delay tactics
ordinarily found in other kinds of civil cases, to give
their client an unfair advantage. Such tactics include
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improper attempts to keep a defendant-tenant, who is in
wrongful possession, in the home as long as he can. The
result: landlords bear the burden of the undue legal costs,
while incurring significant losses to income. Specifically,
the longer a process drags on, the longer the landlord goes
without any rental income from the defendant in possession,
while losing the opportunity to rent the space to another.
Allowing referrals to inexperienced individuals and groups
will frustrate the purpose of the law, the courts and
result in unfair delay and unfair burden to landlords.
Opponents express concern that this bill will result in more
referrals of tenants to lawyers who do not understand unlawful
detainer law, thus producing unjustified delays in the expedited
eviction process. This concern appears to confuse the function
of a lawyer referral service, as referenced in this bill, and an
actual law firm or legal service provider who would actually be
representing the tenant. Under the State Bar Rules cited above,
lawyer referral services operate for the purpose "of referring
potential clients to lawyers" (Rule 4.1) and "to provide a way
in which a person may be referred to a qualified, insured lawyer
who is able to render and is interested in rendering needed
legal services" (Rule 5.1(a)). As previously discussed, the
Rules are actually designed to accomplish the opposite of the
opponents' concern-namely, to facilitate a proper referral to a
qualified lawyer "to respond to all circumstances of the client,
including the type of the legal problem presented." (Rule
13.1.)
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (sponsor)
City of Santa Monica
Consumer Attorneys of Santa Monica
Watsonville Law Center
Opposition
Apartment Association, California Southern Cities
Apartment Association of Orange County
East Bay Rental Housing Association
NORCAL Rental Property Association
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Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334