BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2011-2012 Regular Session AB 2684 (Committee on Judiciary) As Amended May 8, 2012 Hearing Date: July 3, 2012 Fiscal: No Urgency: No RD SUBJECT Civil Actions: interpreter costs: indigent DESCRIPTION Existing law allows for a prevailing party to recover certain specified costs. This bill would add court interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a pro bono attorney, as defined. Additionally, this bill seeks to promote additional pro bono support by allowing financial contributions to legal aid organizations, as specified, to help meet a state contractor's pro bono goals. BACKGROUND The California Code of Civil Procedure permits certain costs to be recovered by a prevailing party, as specified. Until last year, there was no provision providing for recovery of costs for court interpreters provided to non-English speakers in civil cases. AB 1403 (Committee on Judiciary, Ch. 409, Stats. 2011), among other things, provided a limited remedy by providing for recovery of costs for qualified court interpreters authorized by the court for indigent non-English speakers who are represented by a qualified legal services project, as specified under the Business and Professions Code. This bill, a follow-up to AB 1403, would add that court interpreter fees can be recovered by a prevailing party for a qualified court interpreter authorized by the court for an indigent non-English speaker who is represented by a pro bono (more) AB 2684 (Committee on Judiciary) Page 2 of ? attorney, as defined. In addition, the California Business and Professions Code requires that any contract with the state for legal services that exceeds $50,000 include a certification by the contracting law firm that it agrees to make a good faith effort to provide a minimum number of hours of pro bono legal services, as defined, during each year of the contract. Separately, the Business and Professions Code permits a lawyer to fulfill his or her pro bono goals in part by providing financial support to organizations providing free legal services to persons of limited means equal to, at minimum, the approximate value of the hours of pro bono legal service that he or she would otherwise have provided. This bill would also recognize that financial contributions to legal aid organizations can help to meet a state contractor's pro bono goals. CHANGES TO EXISTING LAW 1. Existing law defines "indigent person" as a person whose income is: (1) 125 percent or less of the current poverty threshold as specified; or (2) who is eligible for Supplemental Security Income or free services under the Older Americans Act or Developmentally Disabled Assistance Act. (Bus. & Prof. Code Sec. 6213(d).) Existing law provides that except as otherwise provided by statute, a prevailing party, as defined, is entitled as a matter of right to recover costs in any action or proceeding. (Code Civ. Proc. Sec. 1032(a)(5).) Existing law enumerates the items allowable as costs under Section 1032, including, among other things: filing, motion, and jury fees; court reporter fees as established by statute; court interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a qualified legal service project, as specified; and any other item that is required to be awarded to the prevailing party pursuant to statute as an incident to prevailing in the action at trial or on appeal. (Code Civ. Proc. Sec. 1033.5(a).) Existing law defines a pro bono attorney as any attorney, law firm, or legal corporation, licensed to practice law in this AB 2684 (Committee on Judiciary) Page 3 of ? state, that undertakes, without charge to the party, the representation of an indigent person, referred by a qualified legal services project, qualified support center, or other qualified project, in a case not considered to be fee generating, as defined. (Bus. & Prof. Code Sec. 8030.4(d).) This bill would add to the existing authorization for recovery of court interpreter fees by prevailing parties under Section 1033.5 of the Code of Civil Procedure above, where the court has authorized a qualified court interpreter for an indigent person who is represented by a pro bono attorney, as defined. 2. Existing law requires that any contract with the state for legal services that exceeds $50,000 include a certification by the contracting law firm that the firm agrees to make a good faith effort to provide, during the duration of the contract, a minimum number of hours of pro bono legal services, as defined, during each year of the contract equal to the lesser of either: (1) 30 multiplied by the number of full-time attorneys in the firm's offices in the state, with the number of hours prorated on an actual day basis for any contract period of less than a full year, or (2) 10 percent of its contract with the state, as specified. (Bus. & Prof. Code Sec. 6072(a).) Existing law provides that it has been the tradition of those learned in the law and licensed to practice law in this state to provide voluntary pro bono legal services to those who cannot afford the help of a lawyer, and that every lawyer authorized and privileged to practice law in California is expected to make a contribution. Existing law provides that in some circumstances, it may not be feasible for a lawyer to directly provide pro bono services and, in those circumstances, a lawyer may instead fulfill his or her individual pro bono ethical commitment, in part, by providing financial support to organizations providing free legal services to persons of limited means. Existing law specifies certain factors that the lawyer should consider in deciding to provide financial support. (Bus. & Prof. Code Sec. 6073.) This bill would specify in Section 6072 of the Business and Professions Code that the contracting firm must agree to make a good faith effort to provide, during the duration of the contract, a minimum number of hours of pro bono legal services, or an equivalent amount of financial contributions AB 2684 (Committee on Judiciary) Page 4 of ? to qualified legal service projects and support centers, as defined, during each year of the contract equal to the lesser of two specified formulas. This bill would add a reference to financial contributions wherever reference is made to providing pro bono legal services. COMMENT 1. Stated need for the bill According to the author: The Assembly Judiciary Committee has held many hearings on the legal aid funding crisis precipitated by the economic recession as well as the lack of civil court interpreters - a problem made worse by recent and ongoing budget cuts. This bill follows upon last year's AB 1403, to facilitate the provision of court interpreters when they are determined to be necessary for indigent parties in civil matters. AB 1403 allowed indigent parties to recover the cost of court interpreters when they are the prevailing party and are represented without charge by a qualified nonprofit legal services organization. This bill would simply allow for the same cost recovery when the matter is handled by a pro bono attorney affiliated with a qualified legal services organization. Only cases that are not considered to be fee generating would be covered. Doing so would also help to expand access to interpreter services at a time when court budget cuts are a significant obstacle to court-provided interpreters. Despite budget limitations, our courts must increasingly serve a growing number of parties who need assistance with English, a time-consuming process that frequently causes significant delays in court proceedings for all court users. Making professional interpreters more widely available will assist the court in handling matters expeditiously while limiting the need to rely on court interpreters and other court personnel. This bill Ýalso] promotes legal pro bono support by counting the financial contributions to nonprofit legal aid groups made by lawyers and law firms who are state contractors. Under existing law, contracts for legal services of more than $50,000 must include a certification that the contracting firm AB 2684 (Committee on Judiciary) Page 5 of ? will make a good faith effort to provide direct pro bono services during the period of the contract. (Bus. & Prof. Code section 6072.) A separate provision of existing law recognizes that lawyers can help to meet their pro bono goals by making financial contributions to legal aid organizations in addition to or in lieu of providing direct pro bono services. (Bus. & Prof. Code section 6073.) This bill more explicitly links these provisions by recognizing that financial contributions to legal aid organizations can help to meet a state contractor's pro bono goals. 2. Allows for recovery of court interpreter fees if an indigent non-English speaker is represented by a pro bono attorney California law allows for prevailing parties to recover certain costs, as specified. This bill adds that a prevailing party may recover fees for a qualified court interpreter authorized by the court for indigent non-English speakers represented by pro bono attorneys, as specified. Last year, AB 1403 (Committee on Judiciary, Ch. 409, Stats. 2011) was enacted to allow prevailing parties to recover fees for qualified court reporters authorized by the court for indigent non-English speakers, where that person was represented by a qualified legal services project. In other words, these are fees that were expended on qualified professional court reporters that are not provided by the court, but are instead paid for by the legal services project representing an indigent non-English speaker. This bill would, in a similarly limited fashion, allow for recovery of those fees by prevailing parties where the court authorized a qualified court interpreter and the indigent non-English speaker is represented by a pro bono attorney, specifically defined as an attorney, law firm, or legal corporation that undertakes, without charge to the party, the representation of an indigent person, referred by a qualified legal services project, qualified support center, or other qualified project, in a case not considered to be fee generating. Proponents of this bill argue that "Ým]any Californians, including victims of domestic violence and others in civil court proceedings, are not proficient in English and need language interpreters to obtain meaningful access to the court system in civil matters. AB 2684 will promote access to justice, AB 2684 (Committee on Judiciary) Page 6 of ? efficient court administration, and greater public trust and confidence in the legal system by adding court interpreter fees for a qualified court interpreter authorized by the court for an indigent person represented by a pro bono attorney to the allowable costs under California Code of Civil Procedure Section 1033.5(a)." From a policy standpoint, it does not seem unreasonable to provide for recovery of such fees where the case involved an indigent person, authorization from the court was obtained for a qualified court interpreter, and the party ultimately prevailed-especially when the representing attorney undertook the case without charge to the party. Moreover, where such recovery would have been allowed if the indigent person had been represented by a qualified legal services project, it arguably appears consistent with existing law to allow for recovery where it is a qualifying pro bono attorney that is representing that same person. 3. Allows financial contributions as one form of pro bono support that can satisfy the pro bono obligations of state contractors The bill would also seek to encourage further pro bono services by firms who seek to contract with the state and are statutorily required to commit to make a good faith effort to provide, during the duration of the contract, a minimum number of hours of pro bono legal services, as specified, during each year of the contract. Under existing law such firms must commit to provide the lesser of either: (1) 30 multiplied by the number of full-time attorneys in the firm's offices in the state, with the number of hours prorated on an actual day basis for any contract period of less than a full year, or (2) 10 percent of its contract with the state, as specified. (Bus. & Prof. Code Sec. 6072(a).) This bill would specify that a firm could meet the requirement either by committing to make a good faith effort to provide, during the duration of the contract, a minimum number of hours of pro bono services (as already stated under existing law) or an equivalent amount of financial contributions to qualified legal services projects and support centers, as defined, during each year of the contract, equal to the lesser amount calculated by the two specified formulas. This does not appear to expand upon the existing requirement or dilute it, but merely recognizes that existing law allows pro bono services can be provided in this additional manner --by AB 2684 (Committee on Judiciary) Page 7 of ? making equivalent financial contributions. (See Bus. & Prof. Code Sec. 6073.) In doing so, the bill allows for more routes by which firms seeking to contract with the state may provide pro bono support when determining if they can make the commitment required under law. It would also arguably encourage pro bono support that takes the form of financial support to certain nonprofit legal aid organizations. Support : Legal Aid Association of California; OneJustice Opposition : None Known HISTORY Source : None Known Related Pending Legislation : None Known Prior Legislation : AB 1403 (Committee on Judiciary, Ch. 409, Stats. 2011) See Background Prior Vote : Assembly Floor (Ayes 59, Noes 14) Assembly Judiciary Committee (Ayes 8, Noes 2) **************