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)



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          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 
                                                                      



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            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 
                                                                      



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            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 
                                                                      



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            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, 
                                                                      



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          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 
                                                                      



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          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) 

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