BILL ANALYSIS                                                                                                                                                                                                    Ó






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          AB 296 (Wagner)
          As Amended May 15, 2013
          Hearing Date: July 2, 2013
          Fiscal: No
          Urgency: No
          BCP


                                        SUBJECT
                                           
                                      Attorneys

                                      DESCRIPTION  

          This bill would authorize a person who is an active member in  
          good standing of the bar of another state or United States  
          jurisdiction, possession, or territory to apply and be eligible  
          for a provisional license to practice law in California if the  
          applicant meets certain requirements, including, among others,  
          supplying 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. 

          The bill would require an applicant to take the first general  
          bar examination or Attorneys' Examination, as specified,  
          administered after the date the active duty member must report  
          to a duty station in the state, except as provided. 

          The bill would require the provisional licenseholder to abide by  
          all the laws, rules, and regulations that govern fully licensed  
          members of the State Bar and would also subject him or her to  
          the same duties, responsibilities, and obligations and confer  
          the same rights and benefits, as fully licensed members of the  
          State Bar, except as provided. 

                                      BACKGROUND  

          The State Bar of California is a public corporation.  Attorneys  
          who wish to practice law in California generally must be  
                                                                (more)



          AB 296 (Wagner)
          Page 2 of ?



          admitted and licensed in this state and must be a member of the  
          State Bar.  (Cal. Const., art. VI, Sec. 9.)  The State Bar of  
          California is the largest state bar in the country.  As of May  
          2013, the State Bar had 178,050 active members and 51,985  
          inactive members, which represents a slight annual increase in  
          both active members and inactive members.  Total State Bar  
          membership is listed at 242,738, which includes 2,122 judge  
          members and 10,580 members who are "Not Eligible to Practice  
          Law."
          Although some states do offer reciprocity - the practice which  
          allows attorneys from one state to be admitted to practice in  
          another state without taking the bar examination, if the other  
          state extends the same courtesy - California does not.  The  
          State Bar's Office of Admissions describes the process for  
          out-of-state attorneys seeking admission into California as  
          follows:

            To be admitted to practice law in California, an attorney  
            applicant must comply with the requirements outlined in the  
            Rules, which include:  1) registration as an attorney  
            applicant; 2) a positive moral character determination; 3)  
            passage of the Multistate Professional Responsibility  
            Examination (MPRE); and, 4) passage of the California Bar  
            Examination. Additionally, an applicant must not be  
            certified by the State Department of Social Services as  
            being in non-compliance with a court ordered child or family  
            support obligation. There is no requirement of citizenship  
            or residency.

            Attorney applicants admitted in other states or  
            jurisdictions of the United States who have been admitted in  
            active status in good standing four years immediately  
            preceding the first day of the administration of the  
            California Bar Examination, may elect to take the Attorneys'  
            Examination, which is of two days duration and consists of  
            six essay questions and the two performance test questions  
            from the California Bar Examination. Attorney applicants  
            admitted less than four years, attorneys not in good  
            standing and attorneys not in active status must take the  
            General Bar Examination, which is of three days duration and  
            consists of six essay questions, two performance test  
            questions and a 200-item multiple-choice Multistate Bar  
            Examination portion. Attorneys qualified to take the  
            Attorneys' Examination may choose to take the California Bar  
            Examination instead of the Attorneys' Examination

                                                                      



          AB 296 (Wagner)
          Page 3 of ?



          This bill would additionally create a procedure by which a  
          person married to, or in a domestic partnership or other legal  
          union with, an active member of the Armed Forces who is  
          assigned to a duty station in California under active duty  
          military orders may receive a provisional license to practice  
          law in California, provided that the person takes the next  
          available bar exam, as specified.

                                CHANGES TO EXISTING LAW
           
           Existing law  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.  (Bus. & Prof.  
          Code Sec. 6062(a).)

           Existing law  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.  (Bus. &  
          Prof. Code Sec. 6062(a)(3).)

           Existing law  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 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.  (Bus. & Prof. Code Sec. 6062(a)(3).)

           Existing law  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.  (Bus. &  
          Prof. Code Sec. 6062(b).)
                                                                      



          AB 296 (Wagner)
          Page 4 of ?




           This bill would additionally provide that a person who is an  
          active member in good standing of the bar of an admitting sister  
          state or United States jurisdiction, possession, or territory  
          may apply and shall be eligible to be certified to the Supreme  
          Court for provisional admission, and to receive a provisional  
          license to practice law in California, if the applicant meets  
          all of the following requirements:
                 is at least 18 years of age;
           files an application for determination of moral character with  
            the State Bar and is determined to be of good moral character;
           has passed an examination in professional responsibility or  
            legal ethics as the examining committee may prescribe;
           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 military orders;
           establishes that he or she is an active member in good  
            standing entitled to practice law in another state, United  
            States jurisdiction, possession, or territory; and
            establishes that he or she has never been subject to lawyer  
            discipline and is not the subject of a pending disciplinary  
            matter in any jurisdiction.

           This bill  would require the applicant or provisional  
          licenseholder to apply for and take the first general bar  
          examination or Attorneys' Examination administered after the  
          date the active member of the Armed Forces must report to a duty  
          station in California, unless:  (1) the first examination is  
          administered less than 90 days after the active duty member must  
          report to a duty station in California, in which case the  
          applicant or licenseholder must either take the first  
          examination or the second examination after that date; or (2) if  
          the active duty member reported to a duty station in California  
          before January 1, 2014, the applicant or provisional  
          licenseholder shall apply for and take the examination no later  
          than July 2014.

           This bill  would require a provisional licenseholder to abide by  
          all of the laws, rules, and regulations that govern fully  
          licensed members of the State Bar, including payment of annual  
          bar membership dues and compliance with the Minimum Continuing  
          Legal Education Requirements.

           This bill  would provide that a provisional licenseholder is  
                                                                      



          AB 296 (Wagner)
          Page 5 of ?



          subject to the same duties, responsibilities, and obligations as  
          fully licensed members of the State Bar and shall be conferred  
          the same rights and benefits of the State Bar, subject to the  
          following:
                 a provisional licenseholder 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 licenseholder concurrently states that he or she is  
               admitted to practice in California under a provisional  
               license;
                 a provisional licenseholder shall state in all written  
               fee agreements and other contracts for legal services that  
               he or she is admitted to practice in California under a  
               provisional license only; and
                 a provisional licenseholder may practice law in  
               California only under the supervision of an attorney who is  
               an active member in good standing.

           This bill  would provide that the provisional license shall  
          automatically and immediately terminate upon the earliest of the  
          following:
                 failure of the applicant or licenseholder to apply for,  
               take, and pass the general bar examination or Attorneys'  
               Examination, as required;
                 a change resulting in the active duty member of the  
               Armed Forces no longer being assigned to a duty station in  
               California under official active duty military orders; or
                 divorce, dissolution, or legal termination of the  
               marriage, domestic partnership, or other legal union with  
               the active duty member of the Armed Forces.

           This bill  would provide that a provisional license shall be  
          automatically superseded and immediately terminate upon the  
          issuance of a full license to practice law in California to the  
          provisional licenseholder.

                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author:

            The ability to practice law in California requires an  
            individual to possess a license which comes with several  
            conditions, which can cause lengthy re-employment delays for  
            military spouses who practice law and move between states.   
                                                                      



          AB 296 (Wagner)
          Page 6 of ?



            Because of these delays and the expense involved in  
            re-licensure, many spouses decide not to practice in their  
            professions.  This is a difficult financial and career  
            choice issue for military members and their spouses,  
            potentially impacting their desire to stay in the military.

            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 a 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 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.

          2.   Provisional license to practice law  

          This bill seeks to allow a person who is in good standing of the  
          bar of an admitting sister state or United States jurisdiction,  
          possession, or territory to receive a provisional license to  
          practice law in California.  Those persons must be 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.  Those persons would still be required to  
          be of good moral character, pass the professional responsibility  
          examination, not be subject to discipline in any jurisdiction,  
          and agree to take the next available general bar examination or  
          Attorneys' examination.  In exchange, the provisional  
          licenseholder can practice law only under the supervision of an  
          attorney who is an active member in good standing of the State  
          Bar, and provide various disclosures that he or she is admitted  
          to practice law in California under a provisional license only.   
                                                                      



          AB 296 (Wagner)
          Page 7 of ?



          That license would terminate under various circumstances,  
          including, if the person fails to apply for, take, and pass the  
          bar examination.

          As a practical matter, this bill seeks to address the situation  
          where a person's partner is an active duty member of the Armed  
          Forces who has been assigned to a duty station in California  
          under active duty orders.  That relocation could pose challenges  
          for an attorney in another jurisdiction who relocates with his  
          or her partner and is unable to practice law until passing the  
          next California bar examination.  To address that situation, the  
          bill would allow the attorney to apply for a provisional license  
          that would allow him or her to practice law, under supervision  
          of a licensed California attorney, until the next bar  
          examination occurs.  

          It should be noted that existing California Rules of Court  
          allows certain non-California attorneys to practice law in  
          California under the multijurisdictional practice (MJP) rules,  
          specifically, the State Bar notes that the following attorneys  
          are allowed to practice under those rules:  "[a]ttorneys working  
          for a qualified legal services provider and under the  
          supervision of a California attorney working for the same  
          provider (rule 9.45); attorneys working as in-house counsel for  
          a qualifying institution (rule 9.46); attorneys practicing law  
          temporarily in California as part of litigation (rule 9.47); and  
          non-litigating attorneys temporarily in California to provide  
          legal services (rule 9.48)."  (FAQ, State Bar of Cal.  
           [as of June 26, 2013].)  
           Out-of-state attorneys may also appear pro hac vice (to  
          participate in a particular case), at the discretion of the  
          court, upon written application, and provided that an active  
          attorney of the State Bar is associated as an attorney of  
          record, as well as out-of-state attorney arbitration counsel and  
          military counsel, as specified. (Rules of Court 9.40, 9.41,  
          9.43.)

          3.   State Bar passage rates  

          California's bar examination has traditionally been seen as one  
          of the toughest in the nation.  In the most recent bar  
          examination, February 2013, only 41.0 percent of the prospective  
          attorneys taking the examination passed.  In July 2012, only  
          55.3 percent passed the examination, which represented 4,834  
          people from a total of 8,737 test takers.  
                                                                      



          AB 296 (Wagner)
          Page 8 of ?




          Out-of-state attorneys who took California's shorter Attorneys'  
          Examination appear to fare similarly to takers of the general  
          bar examination.  In the most recent examinations, 50 percent of  
          these out-of-state attorneys passed in February 2013, and 34.9  
          percent passed in July of 2012.  Thus, as a practical matter,  
          the current standard set by the State Bar for admission arguably  
          serves a role in terms of consumer protection and limits the  
          number of attorneys practicing in the state.  

          4.   Numbers of military spouses in California  

          Regarding the challenges faced by spouses of servicemembers, the  
          California Research Bureau's report entitled Professional  
          Licensing and Military Spouses found:

            California has approximately 72,500 military spouses  
            (civilians married to  servicemembers) residing here in any  
            given year. This population is highly mobile~ about 15  
            percent of military families move across state lines each  
            year.  With each move, a spouse has to leave a job, move  
            households, and decide whether or not to pursue a new job in  
            a new location.

            Over a third of all military spouses are employed in  
            professions that require some sort of professional license  
            or certificate. Most states have unique licensing  
            requirements and an interstate move frequently requires a  
            new application for a license or certificate. Applying for a  
            new license or certificate in a new state requires time,  
            money, and paperwork, and does not guarantee employment in  
            the field.

            Licensing and certification requirements affect both  
            financial and personal well?being of military personnel.  
            Many military personnel, especially lower?enlisted  
            personnel, rely on a spouse's salary to help pay the bills.  
            Additionally, a recent survey showed that more than  
            two?thirds of all service members stated their decision to  
            re?enlist was largely or moderately affected by their  
            spouse's career prospects.  
            (http://www.library.ca.gov/crb/13/S-13-001.pdf.)  
           
          5.   Opposition's concerns  

          The author notes that this bill is "inspired by the national  
                                                                      



          AB 296 (Wagner)
          Page 9 of ?



          movement being led by the Military Spouse JD Network." The  
          Military Spouse JD Network (MSJDN) is self-described as an  
          advocate for licensing accommodations for military spouses,  
          including bar membership without additional examination.  Steps  
          taken nationwide to accomplish that goal include a resolution  
          passed by the House of Delegates of the American Bar Association  
          (ABA) that "urges state and territorial bar admission  
          authorities to adopt rules, regulations, and procedures that  
          accommodate the unique needs of military spouse attorneys who  
          move frequently in support of the nation's defense," and a  
          resolution supported by the Conference of Chief Justices to  
          encourage adoption of rules regarding admission of attorneys who  
          are dependents of service members.  MSJDN asserts that they sent  
          a proposal to the California State Bar on January 27, 2012,  
          based on the ABA and Conference of Chief Justices resolutions,  
          that encourages the State Bar to adopt a rule reducing licensing  
          barriers for military spouses who are active attorneys in good  
          standing in other U.S. jurisdictions, and who are residing in  
          California due to military orders.  

          However, MSJDN, in opposition, contends that AB 296 does not  
          help military families because it codifies what they have  
          identified as the single largest barrier to a continuous legal  
          career for a military spouse: repetitive, expensive, and  
          time-intensive bar examinations.  Staff notes that MSJDN's  
          concern is with the bill's requirement to take the next  
          available bar examination (or the second available bar  
          examination if the first examination is administered less than  
          90 days after the active duty member must report to a duty  
          station in California).  Similarly, the Military Officers  
          Association of America, National Military Family Association,  
          and In Gear Career oppose the requirement that an applicant to  
          sit for the next available bar examination.  That requirement  
          was amended into AB 296 as the result of negotiations with the  
          State Bar in an effort to allow a provisional license to  
          practice law, while, ensuring adequate consumer protection.    
          The author further notes: 

            The amended version of this bill is a reasonable compromise  
            with the California State Bar which allows a military spouse  
            to practice law on a provisional license, provided they take  
            the next available Bar Exam.  As current law requires  
            everyone to take the California State Bar Exam before they  
            can practice law in California, this bill is a significant  
            improvement for military spouses over the rules currently on  
            the books.
                                                                      



          AB 296 (Wagner)
          Page 10 of ?





           Support  :  None Known

           Opposition  :  In Gear Career; Military Officers Association of  
          America; Military Spouse JD Network; National Military Family  
          Association; one individual

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :

          SB 345 (Evans) would authorize the State Bar of California to  
          collect active membership dues of up to $390 for the year 2014.   
          This bill is currently in the Assembly Judiciary Committee.

          SB 888 (Dickinson) would, among other things, allow the State  
          Bar to bring a civil enforcement action for the unauthorized  
          practice of law in which the court shall impose civil penalties  
          for violations and award reasonable attorney's fees and costs to  
          the State Bar.  This bill is currently on the Senate Floor.
                                           
           Prior Legislation  :  None Known

           Prior Vote  :

          Assembly Floor (Ayes 73, Noes 0)
          Assembly Committee on Judiciary (Ayes 10, Noes 0)
          Assembly Committee on Veterans Affairs (Ayes 7, Noes 1)

                                   **************