Amended in Assembly May 8, 2013

Amended in Assembly March 21, 2013

California Legislature—2013–14 Regular Session

Assembly Bill No. 888

Introduced by Assembly Member Dickinson

February 22, 2013

An act to amend Section 17206 of, and to add Section begin delete 6026.6 end delete begin insert 6126.6 end insert to, the Business and Professions Code, relating to the State Bar.

LEGISLATIVE COUNSEL’S DIGEST

AB 888, as amended, Dickinson. State Bar of California: enforcement actions.

(1) Existing law prohibits a person from practicing law in California, or from advertising or holding himself or herself out as practicing law, unless the person is an active member of the State Bar, or otherwise authorized, as specified, to practice law in this state. A violation of these provisions is a crime.

This bill would, for violations begin delete of any of these end delete begin insert of the above-described end insert provisions, require the State Bar to disclose, in confidence, the information in its investigation begin insert to the agency responsible for the criminal enforcement of these provisions end insert or exchange that information with begin delete the agency responsible for the criminal enforcement of those provisions. end delete begin insert that agency. end insert This bill would authorize the State Bar to request begin delete that end delete the Attorney General, a district attorney, or a city attorney acting as a local prosecutor, begin insert to end insert bring an enforcement begin delete action, as specified, end delete begin insert action end insert or bring a civil action in its own name, as specified. begin delete The bill would require that the court, in a civil enforcement action by the State Bar, impose and consider specified remedies, including, but not limited to, specified civil penalties to be paid to the State Bar, and specified penalties for any intentional violation of any injunction prohibiting the unlawful practice of law, as specified, to be paid to the State Bar. end delete begin insert The bill would require the court, in a civil enforcement action by the State Bar for the unlawful practice of law, to impose a civil penalty not to exceed $2,500, to be paid to the State Bar. The bill would also require the court to impose a civil penalty not to exceed $6,000 for the intentional violation of any injunction prohibiting the unlawful practice of law. The bill would specify that if the conduct constituting the intentional violation is of a continuing nature, each day of that conduct shall be deemed a separate and distinct violation. The bill would, in determining the amount of the civil penalty to be assessed for these violations, require the court to consider any relevant circumstances, as specified. The bill would also require the court to consider, when applicable, additional relief provided under existing law and to award reasonable attorney’s fees and costs, as specified. end insert

(2) Existing law makes begin delete any person who engages, has engaged, or proposes to engage in unfair competition, liable for a civil penalty not to exceed $2,500 for each violation, which must be assessed and recovered in a civil action brought in the name of the people of the State of California by any of specified persons, in any court of competent jurisdiction. end delete begin insert a person who engages in unfair competition, as defined, liable for a civil penalty not to exceed $2,500 dollars for each violation and requires that this penalty be assessed and recovered in a civil action brought in the name of the people of the State of California by specified persons in any court of competent jurisdiction. end insert Existing law begin delete requires, if the action is end delete begin insert requires a court, for an unfair competition action end insert brought at the request of a board within the Department of Consumer Affairs or a local consumer affairs agency, begin delete that the court end delete begin insert to end insert determine the reasonable expenses incurred by the board or local agency in the investigation and prosecution of the begin delete action. end delete begin insert action, and provides for the reimbursement of these expenses, as specified. end insert

This bill would begin delete also require, if the action is end delete begin insert similarly require the court, for an action end insert brought at the request of the State Bar of California, begin delete that the court end delete begin insert to end insert determine the reasonable expenses incurred by the State Bar in the investigation and prosecution of the action begin delete and require the amount of those expenses be paid to the State Bar to fund its investigation and enforcement of specified provisions end delete begin insert and provide for the reimbursement of these expenses end insert .

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section begin delete 6026.6 end delete begin insert 6126.6 end insert is added to the Business
and Professions Code, to read:

begin delete 6026.6. end delete
begin insert 6126.6. end insert   

(a) For violations of Sections 6125 and 6126, the State
Bar shall disclose, in confidence, the information in its
investigation begin insert to the agency responsible for the criminal
enforcement of the provisions of this article end insert or exchange that
information with begin delete the agency responsible for the criminal
enforcement of the provisions of this article. end delete begin insert that agency. end insert The State
Bar may request the Attorney General, a district attorney, or a city
attorney acting as a local prosecutor, to bring an enforcement action
under Chapter 5 (commencing with Section 17200) of Part 2 of
Division 7, or the State Bar may bring a civil action in its own
name, as provided in Section 6030 begin insert , for any violation of Section
6125 or 6126 end insert .

(b) In a civil enforcement action brought by the State Bar, in
addition to the remedies and relief available in Section 6030 and
subdivision (e) of Section 6126.3, the court shall:

(1) Impose begin insert a end insert civil begin delete penalties specified in Section 17206, end delete begin insert penalty
in an amount not to exceed two thousand five hundred dollars
($2,500) for each violation of Section 6125 or 6126, end insert to be paid to
the State Bar. begin insert In determining the amount of the civil penalty to be
assessed, the court shall consider any relevant circumstances
presented by any of the parties to the case, including, but not
limited to, the nature and seriousness of the misconduct, the
number of violations, the persistence of the misconduct, the length
of time over which the misconduct occurred, the willfulness of the
defendant’s misconduct, and the defendant’s assets, liabilities,
and net worth. end insert

(2) Impose begin delete penalties for any end delete begin insert a civil penalty for the end insert intentional
violation of any injunction prohibiting the unlawful practice of
law, begin delete as specified in Section 17207, end delete begin insert in an amount not to exceed six
thousand dollars ($6,000) for each violation, end insert to be paid to the State
Bar. begin insert If the conduct constituting the violation is of a continuing
nature, each day of that conduct shall be deemed a separate and
distinct violation. In determining the amount of the civil penalty
to be assessed, the court shall consider any relevant circumstances,
including, but not limited to, the extent of the harm caused by the
conduct constituting a violation, the nature and persistence of the
conduct, the length of time over which the conduct occurred, the
defendant’s assets, liabilities, and net worth, and any corrective
action taken by the defendant. end insert

(3) Consider, when applicable, the relief available in paragraphs
(1) to (6), inclusive, of subdivision (a) of Section 6126.5.

(4) Award to the State Bar reasonable attorney’s fees and costs
and, in the court’s discretion, exemplary damages as provided in
Section 3294 of the Civil Code.

SEC. 2.  

Section 17206 of the Business and Professions Code
is amended to read:

17206.  

Civil Penalty for Violation of Chapter

(a) Any person who engages, has engaged, or proposes to engage
in unfair competition shall be liable for a civil penalty not to exceed
two thousand five hundred dollars ($2,500) for each violation,
which shall be assessed and recovered in a civil action brought in
the name of the people of the State of California by the Attorney
General, by any district attorney, by any county counsel authorized
by agreement with the district attorney in actions involving
violation of a county ordinance, by any city attorney of a city
having a population in excess of 750,000, by any city attorney of
any city and county, or, with the consent of the district attorney,
by a city prosecutor in any city having a full-time city prosecutor,
in any court of competent jurisdiction.

(b) The court shall impose a civil penalty for each violation of
this chapter. In assessing the amount of the civil penalty, the court
shall consider any one or more of the relevant circumstances
presented by any of the parties to the case, including, but not
limited to, the following: the nature and seriousness of the
misconduct, the number of violations, the persistence of the
misconduct, the length of time over which the misconduct occurred,
the willfulness of the defendant’s misconduct, and the defendant’s
assets, liabilities, and net worth.

(c) If the action is brought by the Attorney General, one-half of
the penalty collected shall be paid to the treasurer of the county in
which the judgment was entered, and one-half to the General Fund.
If the action is brought by a district attorney or county counsel,
the penalty collected shall be paid to the treasurer of the county in
which the judgment was entered. Except as provided in subdivision
(e), if the action is brought by a city attorney or city prosecutor,
one-half of the penalty collected shall be paid to the treasurer of
the city in which the judgment was entered, and one-half to the
treasurer of the county in which the judgment was entered. The
aforementioned funds shall be for the exclusive use by the Attorney
General, the district attorney, the county counsel, and the city
attorney for the enforcement of consumer protection laws.

(d) The Unfair Competition Law Fund is hereby created as a
special account within the General Fund in the State Treasury. The
portion of penalties that is payable to the General Fund or to the
Treasurer recovered by the Attorney General from an action or
settlement of a claim made by the Attorney General pursuant to
this chapter or Chapter 1 (commencing with Section 17500) of
Part 3 shall be deposited into this fund. Moneys in this fund, upon
appropriation by the Legislature, shall be used by the Attorney
General to support investigations and prosecutions of California’s
consumer protection laws, including implementation of judgments
obtained from such prosecutions or investigations and other
activities which are in furtherance of this chapter or Chapter 1
(commencing with Section 17500) of Part 3. Notwithstanding
Section 13340 of the Government Code, any civil penalties
deposited in the fund pursuant to the National Mortgage Settlement,
as provided in Section 12531 of the Government Code, are
continuously appropriated to the Department of Justice for the
purpose of offsetting General Fund costs incurred by the
Department of Justice.

(e) If the action is brought at the request of a board within the
Department of Consumer Affairs, a local consumer affairs agency,
or the State Bar of California, the court shall determine the
reasonable expenses incurred by the board, local agency, or the
State Bar in the investigation and prosecution of the action.

Before any penalty collected is paid out pursuant to subdivision
(c), the amount of any reasonable expenses incurred by the board
shall be paid to the Treasurer for deposit in the special fund of the
board described in Section 205. If the board has no such special
fund, the moneys shall be paid to the Treasurer. The amount of
any reasonable expenses incurred by a local consumer affairs
agency shall be paid to the general fund of the municipality or
county that funds the local agency. The amount of any reasonable
expenses incurred by the State Bar shall be paid to the State Bar
to fund its investigation and enforcement of Sections 6125 and
6126.

(f) If the action is brought by a city attorney of a city and county,
the entire amount of the penalty collected shall be paid to the
treasurer of the city and county in which the judgment was entered
for the exclusive use by the city attorney for the enforcement of
consumer protection laws. However, if the action is brought by a
city attorney of a city and county for the purposes of civil
enforcement pursuant to Section 17980 of the Health and Safety
Code or Article 3 (commencing with Section 11570) of Chapter
10 of Division 10 of the Health and Safety Code, either the penalty
collected shall be paid entirely to the treasurer of the city and
county in which the judgment was entered or, upon the request of
the city attorney, the court may order that up to one-half of the
penalty, under court supervision and approval, be paid for the
purpose of restoring, maintaining, or enhancing the premises that
were the subject of the action, and that the balance of the penalty
be paid to the treasurer of the city and county.