BILL ANALYSIS Ó
AB 296
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Date of Hearing: May 7, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 296 (Wagner) - As Amended: May 2, 2013
As Proposed to be Amended
SUBJECT : PROVISIONAL LICENSES: ATTORNEYS
KEY ISSUE : SHOULD CALIFORNIA ALLOW A SPOUSE OR DOMESTIC PARTNER
OF AN ACTIVE DUTY MEMBER OF THE ARMED FORCES OF THE UNITED
STATES TO BE GRANTED A PROVISIONAL LICENSE TO TEMPORARILY
PRACTICE LAW IN CALIFORNIA WITHOUT FIRST PASSING THE STATE BAR
EXAMINATION, AND IF SO, UNDER WHAT CIRCUMSTANCES?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill, which recently received unanimous support in the
Assembly Veterans Affairs Committee, seeks to allow a spouse or
domestic partner of an active duty member of the armed forces of
the United States to be granted a provisional license to
practice law in California without first passing the state bar
examination under very carefully circumscribed circumstances.
The author and the Committee have worked very closely with
representatives of the State Bar to try to strike the right
balance of beginning to allow such provisional licenses while
ensuring adequate consumer protections are in place. However
the State Bar has no position on the measure at this time. The
bill is supported by the California Communities United Institute
and it has no known opposition.
SUMMARY : Seeks to authorize provisional licenses to practice
law to spouses of military members who are stationed in
jurisdictions outside the spouse's location of bar membership.
Specifically, this bill :
1)Provides that a person who has been an active member in good
standing of the bar of an admitting sister state or United
States jurisdiction, possession, or territory may apply to
receive a provisional license to practice law in California,
and that a provisional license to practice law shall be
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granted to an applicant who meets the following requirements:
(1) Is at least 18 years of age; (2) Is of good moral
character; (3) Has passed an examination in professional
responsibility or legal ethics as the examining committee may
prescribe; (4) Supplies evidence satisfactory to the State Bar
that he or she is married to, or in a domestic partnership or
other legal union with, an active duty member of the Armed
Forces of the United States who is assigned to a duty station
in California under official active duty military orders; (5)
Holds a current license to practice law in another state,
district, or territory of the United States; (6) Establishes
that he or she is not currently subject to lawyer discipline
or the subject of a pending disciplinary matter in any
jurisdiction; (7) Pays annual bar membership dues; and (8)
Complies with all ethical, legal, and continuing legal
education obligations.
2)Requires an applicant for a provisional license under the bill
to register for and take the California bar examination, in
compliance with specified conditions; and further provides
that the State Bar shall expedite all moral character
investigations or proceedings for provisional license
applicants.
3)Provides that a provisional licenseholder shall take the first
general bar examination or Attorneys' Examination administered
at least 90 calendar days after his or her moral character
determination application is submitted to the State Bar.
4)Provides that a provisional licenseholder who has been an
active member of a sister jurisdiction for less than four
years preceding the first day of examination applied for must
take the general bar examination administered by the State
Bar. Also provides however that a provisional licenseholder
who has been an active member in good standing of the bar of
the admitting sister jurisdiction for at least four years
preceding the first day of examination applied for may elect
to take the Attorneys' Examination rather than the general bar
examination.
5)Provides that a provisional licenseholder must associate with
an active member of the State Bar; and provides that a
provisional licenseholder must disclose his or her provisional
licensure in any contract for legal services, and the failure
to comply with this shall be grounds for revocation of the
provisional license.
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6)Provides that if the provisional licenseholder does not pass
the general bar examination or Attorneys' Examination, the
provisional license shall expire on the date the examination
results become available. Further provides that if the
provisional licenseholder passes the general bar examination
or Attorneys' Examination, the provisional license shall
expire on the date the provisional licenseholder takes the
oath of admission.
7)Provides that a provisional license shall only be valid while
the active duty member of the Armed Forces is assigned to a
duty station in California under official active duty military
orders.
EXISTING LAW regulates attorneys and the practice of law in the
State, referred to as the State Bar Act. (Business and
Professions Code Section 6000 et seq. All further statutory
references are to the Business and Professions Code, unless
otherwise indicated.)
1)Provides that out-of-state attorneys who have practiced law in
another state, jurisdiction, possession, or territory within
the United States may be admitted to practice law in this
state, provided they: (1) Be at least 18 years old; (2) Be of
good moral character; (3) Have passed the general bar
examination given by the examining committee, and (4) Have
passed an examination in professional responsibility or legal
ethics as the examining committee may prescribe. (Section
6062(a).)
2)Provides that out-of-state attorneys who have practiced law in
another state, jurisdiction, possession or territory within
the United States for at least four years immediately prior to
the filing of his or her application for admission to the
California State Bar may be admitted provided their
applications meet the above specified requirements, however,
they may be permitted to take the Attorney's Examination
rather than the general bar examination. (Section
6062(a)(3).)
3)Provides that out-of-state attorneys who have practiced law in
another state, jurisdiction, possession or territory within
the United States for less than four years and attorneys
admitted four years or more in another jurisdiction but who
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have not been active members in good standing of their
admitting jurisdiction may be admitted provided they take the
general bar examination, along with meeting the other
specified requirements. (Section 6062(a)(3).)
4)Provides that out-of-state attorneys who have been admitted to
practice law in a jurisdiction other than a sister state,
United States jurisdiction, possession, or territory may be
admitted to practice law in this state provided their
application meets the above specified requirements, which
includes having passed the general bar examination. (Section
6062(b).)
COMMENTS : This bill departs from long-standing provisions of
the State Bar Act, which currently provide that out-of-state
attorneys who have been admitted to practice law in a sister
jurisdiction, including those in partnerships with members of
the United States armed forces, may apply for admission to the
State Bar only if they meet certain specified requirements
including having passed the State Bar Examination. This bill
seeks to authorize a spouse or domestic partner of an active
duty member of the Armed Forces of the United States to be able
to apply to receive a provisional license to practice law in
California without first taking the State Bar Examination.
In support of the bill, the author writes:
AB 296 will provide a provisional license to practice
law in order to allow an active member in good
standing of the bar of an admitting sister state of
the United States jurisdiction, possession, or
territory who is the spouse of an active member of the
Armed Forces of the United States, to secure
employment while completing state requirements that
may be different from what was required by the
previous licensing state or while awaiting
verification of current license.
By allowing these military spouses to obtain these
provisional licenses, it will alleviate the
substantial amount of pressure that falls onto
military families. A large portion of military
spouses require a license to work in their profession
and if that spouse is unable to receive employment
after moving across state lines, it can have an impact
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on a Service member's decision to continue serving.
These provisional licenses can relieve both the
financial pressure on military families and the
pressure on Service members to leave the service in
order to avoid moving across state lines.
Author's Collaborative Efforts Working With Representatives of
the State Bar : In order to try to meet concerns of the State
Bar, the author has worked with representatives of the State Bar
to try to address the myriad practical issues that arise in his
attempt to create such new provisional licenses. Though the
State Bar has graciously provided helpful technical assistance
in this regard, it has not yet had an opportunity to take a
position on the measure as proposed to be amended.
Background and History: Admission Requirements for Out-of-State
Attorneys and the California Bar Examination : As this Committee
well knows, the State Bar Act regulates attorneys and the
practice of law in California. Under the State Bar Act, an
out-of-state attorney who has practiced in another state
currently may be admitted to practice law in California,
provided they meet the following requirements: be at least 18
years old, be of good moral character, have passed the General
Bar Examination, and have passed an examination in professional
responsibility or legal ethics. An out-of-state attorney who
has practiced in another state for at least four years
immediately prior to the filing of his or her application for
admission to the California State Bar may be admitted, provided
they meet the above specified requirements, if they take and
pass the Attorney's Examination rather than the General Bar
Examination. As many of us painfully and distantly recall, Rule
4.3(h) of the Rules of the State Bar, Title 4, Div. 1 specifies
that the General Bar Examination consists of multiple-choice
questions, essay questions, and performance tests. Rule 4.3(c)
of the Rules of the State Bar, Title 4, Div. 1 specifies that
the Attorney's Examination includes essay questions and
performance tests of the General Bar Examination, but not its
multiple-choice questions (lucky them).
California has one of the most difficult Bar examinations in the
country, and its minimum passing score is higher than every
other state except for Delaware. Most of the other states
require the Multistate Bar Examination ("MBE"), like California,
except for Louisiana, Puerto Rico and Washington, which will
require the MBE effective July 2013. One reason why California
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may have a "tougher" exam is that California allows a broad
range of applicants to take the examination, ranging from a
graduate of an ABA-approved law school, to a graduate of a
non-ABA approved in-state school approved by state authority, a
graduate of a non-ABA approved law school and bar passage in
another state without additional legal education, and lastly
those who engage in the study of law under the authority of a
judge or licensed attorney. The rigorous and thorough exam is
intended to protect consumers by ensuring competence of those
licensed to practice law.
Some Statistics : According to the analysis of the Veterans
Affairs Committee, California has approximately 72,000 military
spouses (civilians married to service members) residing here in
any given year (California Research Bureau, Professional
Licensing and Military Spouses. (2013). S-13-001). And 95% of
military spouses are reportedly women. Over a third of military
spouses are employed in professions that require some sort of
license or certificate. (Professional Licensing and Military
Spouses.) Additionally a recent survey showed that more than
two-thirds of all service members state their decision to
re-reenlist was largely or moderately affected by their spouses'
career prospects. (U.S. Department of the Treasury and U.S.
Department of Defense (2012) Supporting Our Military Families:
Best Practices for Streamlining Occupational Licensing Across
State Lines.)
Out-of-state attorneys practicing law in California : According
the State Bar, there are three programs that currently permit a
person who is eligible to practice law in another state to
practice law in California under the supervision of or in
association with an active member of the State Bar, subject to
the limitations, restrictions and other provisions of the
governing statutes and rules. Other programs currently allow
qualified out-of-state attorneys to practice a limited scope of
law in California, subject to specified rules.
Registered Legal Service Attorneys: Rule 9.45 of the California
Rules of Court and Rules 3.360 - 3.367 of the Rules of the State
Bar of California govern registered legal services attorneys.
Subject to all applicable rules, regulations, and statutes, an
out-of-state attorney practicing law under that rule may
practice law in California only while working at a qualifying
legal services provider, as defined in the rule, under the
supervision of an attorney who is employed by the qualifying
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legal services provider and who is an active member in good
standing of the State Bar of California. An attorney
supervising a registered legal services attorney must meet the
requirements of Rule 9.45(h) relating to number of years in
practice, required level of supervision, and other details.
Pro Hac Vice: Under Rule 9.40 of the California Rules of Court,
an out-of-state attorney who has been retained to appear in a
particular case pending in a California court may, in the
discretion of that court, be permitted upon written application
to appear as counsel pro hac vice, provided that an active
member of the State Bar of California is associated as attorney
of record. Rule 9.40 contains other details, requirements, and
limitations governing pro hac vice counsel.
Out-of-State Attorney Arbitration Counsel: Under Code of Civil
Procedure Section 1282.4, Rule 9.43 of the California Rules or
Court, and Rules 3.380 - 3.382 of the Rules of the State Bar of
California, an out-of-state attorney may represent a party in
connection with an arbitration in California, subject to
approval by the arbitrator or arbitral form and other applicable
provisions in the statute and rules. The out-of-state attorney
must be retained to appear in association with an active member
of the State Bar of California who is attorney of record in the
arbitration.
It is unclear how many military spouses this bill would affect.
Nevertheless, as stated by the author the inability to practice
law in California would pose a significant barrier to employment
for the attorney spouse. He or she might be able to find an
attorney position which does not require admission to the
California Bar as set forth above, but those positions would be
far fewer than those requiring state bar admission. The
programs summarized above are by nature quite limited in scope.
The Issuance of Provisional Licenses to Out-of-State Attorneys
Inherently Raises Important Consumer Protection Concerns : If
the standards for admission of out-of-state attorneys are lower
in the sister state that admitted the applicant to practice law
than in California, then valid consumer protection concerns are
clearly triggered by this potential change. For example,
Wisconsin admits any graduate from the University of Wisconsin
Law School and Marquette University Law School without requiring
passage of the bar examination, commonly referred to as 'diploma
privileges.' In addition, in 27 states, attorney who were
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initially admitted to practice by a sister state's diploma
privilege are eligible for admission on motion. (See
Comprehensive Guide to Bar Admission Requirements, National
Conference of Bar Examiners, 2011.)
The Committee of Bar Examiners of the State Bar reports that
only 34.9% of persons in July 2012 who took the Attorneys'
Examination passed (152 out of 435 applicants) and only 45.9% of
persons in February 2012 who took the Attorneys' Examination
passed (201 out of 438 applicants). If California were to
authorize admission of all out-of-state attorneys without first
taking and passing the Attorneys' Examination, then the 520
attorneys who failed to meet the rigors of the Attorneys'
Examination, if out-of-state attorneys, would be licensed to
practice law in California.
It is not known what number of out-of-state attorneys who fall
within the strict conditions of this bill as proposed to be
amended would be permitted to practice law in this state for a
period of time, even though they might not ultimately pass the
state's rigorous bar examination. It seems safe to assume the
number would, at any rate, be relatively quite small, which is
not to suggest that some clients would still be at risk to
suffer potential harm in such an event. Such risk is true with
other in-state attorneys of course as well however.
Proposed Clarifying Committee Amendments : When this measure was
heard in the Assembly Veterans Affairs Committee, the Committee
appropriately endeavored to incorporate technical and clarifying
amendments helpfully suggested by the State Bar to meet the
author's intent. Many of these amendments were recently added
to the measure. Given the implementation complexity of these
new provisions, however, this analysis, in collaboration with
the technical expertise of the Bar, reflects various clarifying
changes to the current version of the bill, as reflected in a
mock up being distributed to the Committee members, including:
1)The current version of the bill says that a provisional
license to practice law "shall be granted" if certain
requirements are met. The mock up states that a person "shall
be eligible" to be certified to the Supreme Court for
provisional admission and a provisional license if certain
requirements are met.
2)The current version of the bill applies to any person who "has
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been" an active member in good standing of the bar of an
admitting sister state. The mock up applies only to a person
who "is" an active member.
3)The current version of the bill applies to a person with a
"current license to practice law." The mock up applies to an
"active member in good standing entitled to practice law."
4)The current version of the bill requires the applicant to
establish that he or she "is not currently" subject to lawyer
discipline or the subject of a pending disciplinary matter.
The mock up requires that the applicant "has never been"
subject to lawyer discipline, and is not the subject of a
pending disciplinary matter.
5)The current version of the bill says the State Bar "shall
expedite all moral character investigations or proceedings for
provisional license applicants." The mock up has no provision
expediting moral character review, investigation or
proceedings.
6)The current version of the bill says the applicant must take
the first bar examination administered at least 90 days after
his or her moral character determination application is
submitted to the State Bar. Instead, the mock up makes clear
that this requirement is triggered by the effective date of
the assignment of the active duty member to California, not by
submission of the moral character application.
7)The current version of the bill does not say when the
applicant must take and pass the professional responsibility
or legal ethics exam required in California. The mock up ties
the requirement to take the professional responsibility or
legal ethics exam to the same timing that applies to the bar
examination.
8)The current version of the bill says the provisional license
holder must "associate with" an active member of the State
Bar. The mock up importantly says the provisional license
holder may practice law in California only "under the
supervision of" an active member of the State Bar.
9)The current version of the bill says the provisional license
holder must "disclose his or her provisional licensure in any
contract for legal services." The mock up says the
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provisional license holder must state in all "written fee
agreements" that he or she is admitted to practice in
California under a provisional license only.
10)The mock up has a separate provision, not in the current
version of the bill, providing that a provisional license
holder may not advertise, hold out to the public, or otherwise
represent that he or she is admitted or licensed to practice
law in California, unless the provisional license holder
concurrently states that he or she is admitted to practice in
California under a provisional license only.
11)The current version of the bill says that the provisional
license shall expire if the provisional license holder does
not "pass" the required bar examination. The mock up is
similar, but adds that the provisional license shall expire if
the provisional license holder does not register for and take
that exam.
There are also other technical clarifications in the mock up,
but these are the principal ones, that together appear to make
for a well-crafted new opportunity for provisional licenses to
be temporarily available to a spouse or domestic partner of an
active duty member of the armed forces of the United States
under the above noted very carefully circumscribed
circumstances.
REGISTERED SUPPORT/OPPOSITION:
Support
California Communities United Institute
Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334