BILL NUMBER: AB 888 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 8, 2013
AMENDED IN ASSEMBLY MARCH 21, 2013
INTRODUCED BY Assembly Member Dickinson
FEBRUARY 22, 2013
An act to amend Section 17206 of, and to add Section
6026.6 6126.6 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 of any of these
of the above-described provisions, require the State Bar
to disclose, in confidence, the information in its investigation
to the agency responsible for the criminal enforcement of these
provisions or exchange that information with the
agency responsible for the criminal enforcement of those provisions.
that agency. This bill would authorize the State
Bar to request that the Attorney General, a
district attorney, or a city attorney acting as a local prosecutor,
to bring an enforcement action, as specified,
action or bring a civil action in its own name,
as specified. 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.
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.
(2) Existing law makes 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. a person who engages
in unfair competition, as defined, liable for a civil pe
nalty 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. Existing law
requires, if the action is requires a court,
for an unfair competition action brought at the request of a
board within the Department of Consumer Affairs or a local consumer
affairs agency, that the court to
determine the reasonable expenses incurred by the board or local
agency in the investigation and prosecution of the action.
action, and provides for the reimbursement of these
expenses, as specified.
This bill would also require, if the action is
similarly require the court, for an action brought at the
request of the State Bar of California, that the court
to determine the reasonable expenses incurred by
the State Bar in the investigation and prosecution of the action
and require the amount of those expenses be paid to the
State Bar to fund its investigation and enforcement of specified
provisions and provide for the reimbursement of these
expenses .
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 6026.6 6126.6 is
added to the Business and Professions Code, to read:
6026.6. 6126.6. (a) For violations
of Sections 6125 and 6126, the State Bar shall disclose, in
confidence, the information in its investigation to the agency
responsible for the criminal enforcement of the provisions of this
article or exchange that information with the agency
responsible for the criminal enforcement of the provisions of this
article. that agency. 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 , for any violation of Section 6125 or 6126 .
(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 a civil penalties specified in
Section 17206, penalty in an amount not to exceed two
thousand five hundred dollars ($2,500) for each violation of Section
6125 or 6126, to be paid to the State Bar. 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, liabilit ies, and net worth.
(2) Impose penalties for any a civil
penalty for the intentional violation of any injunction
prohibiting the unlawful practice of law, as specified in
Section 17207, in an amount not to exceed six thousand
dollars ($6,000) for each violation, to be paid to the State
Bar. 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.
(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.