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)
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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
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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).)
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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
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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.
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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.
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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.
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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
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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.
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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)
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