BILL ANALYSIS Ó AB 1865 Page 1 Date of Hearing: April 17, 2012 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair AB 1865 (Alejo) - As Amended: April 9, 2012 PROPOSED CONSENT (As Proposed to be Amended) 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, as determined by the court, 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. As proposed to be amended, four apartment associations that previously opposed the bill now have withdrawn their opposition and are neutral. There is currently no registered opposition to the bill. SUMMARY : Expands court-provided notice to defendants in eviction cases to provide information about lawyer referral programs operated by nonprofit local bar associations. AB 1865 Page 2 Specifically, this bill requires 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, as determined by the court, 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 AB 1865 Page 3 are qualified by virtue of suitable experience, and limiting attorney registration and membership fees to 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. Because the bill limits the possible candidates for inclusion on the notice to those "that provide legal services in the court where the (unlawful detainer) action is filed," it is thought that the court in its wisdom will generally be aware, or easily can be made aware, of the presence of such associations operating in the court. Nothing in this bill or in existing law AB 1865 Page 4 authorizes a nonprofit association to mount a formal legal challenge or appeal to any court notice that does not include its specific contact information. 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. For example, a nonprofit bar association in Placer County may be qualified and available to serve tenants facing eviction from properties in adjacent Sacramento County, but current law prevents that association's contact information from being made available through the court notice to tenants who might benefit from it. 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 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 AB 1865 Page 5 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. A "lawyer referral service" (LRS) operates for the direct or indirect purpose of referring potential clients to lawyers. (Rule 4, "Rules and Regulations of the State Bar of California Pertaining to Lawyer Referral Services.") The purposes of a LRS include (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; and (2) to provide information about lawyers and the availability of legal services which will aid the public in their selection of a lawyer; (Rule 5.1.) 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 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).) An 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. 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. (Rule 12.4) As proposed to be amended, this bill clarifies that the additional nonprofit association appearing on the notice is determined by the court. In response to the concerns of several apartment associations, the author proposes to amend the bill to clarify that the additional contact information of the nonprofit association(s) appearing on the notice, as required by this bill, is determined by the court. The proposed amendment is not intended to allow the court pure discretion to decide whether to AB 1865 Page 6 include additional contact information for a nonprofit bar association or not. The notice must include the additional information of at least one such nonprofit association, if one is available that operates an authorized LRS. The amendment is: On page 3, line 11, after "associations" insert ", as determined by the court," As a result of this proposed amendment, four apartment associations have notified the author and the Committee that they have now removed their opposition to the bill. REGISTERED SUPPORT / OPPOSITION : Support Conference of California Bar Associations (sponsor) City of Santa Monica Consumer Attorneys of California Santa Clara County La Raza Lawyers Association Watsonville Law Center Western Center on Law and Poverty Opposition (as proposed to be amended) None on file Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334