BILL ANALYSIS Ó
AB 888
Page 1
Date of Hearing: May 7, 2013
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 888 (Dickinson) - As Amended: March 21, 2013
As Proposed to be Amended
SUBJECT : State Bar of California: New Enforcement Authority
KEY ISSUE : SHOULD THE STATE BAR HAVE STRONGER ENFORCEMENT TOOLS
TO BATTLE THE UNAUTHORIZED PRACTICE OF LAW?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill, sponsored by the State Bar of California, seeks to
strengthen enforcement of penalties and remedies against an
individual who practices law or who holds himself or herself out
to be a practicing attorney when he or she is not authorized to
do so. As the author notes, for the first time, the measure
would appropriately give the Bar the authority to seek attorney
fees, investigative costs and civil penalties - including
restitution for victims - when it goes to court to stop a
non-lawyer from practicing law. The Bar's executive director
further notes that if enacted, the measure would give the Bar
far greater power to address the unauthorized practice of law
through the civil courts. Presently the state attorney
general's office, district attorneys and other prosecutors
already have the authority to criminally prosecute non-lawyers
for doing legal work and also to seek injunctions under the
state's unfair competition law to shut down their operations.
And under legislation the Bar's executive director authored as a
state senator, the Bar also can seek injunctions against the
unauthorized practice of law. However the Bar has not yet been
able to seek the broad range of fees, costs and penalties
available to other prosecutors. The author states that the
result has been that the Bar's efforts to go after unauthorized
lawyers has been unduly hampered, and it has generally done so
only in combination with prosecutors. This bill would address
those enforcement tool deficiencies by ensuring the Bar can
pursue injunctions and can obtain money judgments in these
cases.
AB 888
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SUMMARY : Seeks to provide the State Bar of California with
stronger enforcement tools to battle the unauthorized practice
of law. Specifically, this bill :
1)Requires, for persons who engage in the unauthorized practice
of law, the State Bar of California to disclose, in
confidence, the information in its investigation or exchange
that information with the agency responsible for the criminal
enforcement of those provisions.
2)Authorizes the State Bar to request that the Attorney General,
a district attorney, or a city attorney acting as a local
prosecutor, bring an enforcement action under the State's
unfair competition statutes or the State Bar may bring a civil
action in its own name.
3)Requires that the court, in a civil enforcement action by the
State Bar, to 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 unauthorized practice of law to
be paid to the State Bar.
4)Authorizes the court, in a civil enforcement action by the
State Bar, to award reasonable attorney's fees and costs and,
in the court's discretion, exemplary damages.
5)Requires, if the action is brought at the request of the State
Bar, that the court 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.
EXISTING LAW :
1)Provides that no person shall practice law in California
unless the person is an active member of the State Bar.
(Business and Professions Code Section 6125. All further
statutory references are to this Code, unless otherwise
indicated.)
2)Provides that a person who advertises or holds himself or
herself out as practicing or entitled to practice law or
AB 888
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otherwise practicing law and who is not an active member of
the State Bar is guilty of a misdemeanor. (Section 6126(a).)
3)Provides that any person who has been involuntarily enrolled
as an inactive member of the State Bar, or has been suspended
from membership from the State Bar, or has been disbarred, or
has resigned from the State Bar with charges pending, and
thereafter practices or attempts to practice law is guilty of
a crime punishable by imprisonment in the state prison or
county jail. (Section 6126(b).)
4)Provides that the willful failure of a member of the State
Bar, or one who has resigned or been disbarred, to comply with
an order of the Supreme Court to comply with California Rules
of Court Rule 955, which sets out the range of allowable
Supreme Court orders for resigned, disbarred, or suspended
attorneys, is an alternate felony-misdemeanor. (Section
6126(c).)
5)Authorizes the State Bar to enjoin any violations or
threatened violations of the unauthorized practice of law in a
civil action brought in the superior court by the State Bar.
(Section 6030.)
COMMENTS : This bill, sponsored by the State Bar of California,
will substantially strengthen enforcement tools available to
battle the unauthorized practice of law. The author provides
the following helpful background to demonstrate the need for the
measure:
The unauthorized practice of law is already a crime,
but the State Bar has little authority to stop the
practice because it cannot prosecute and enforce
criminal laws. The limit of this authority was
recently highlighted by the post-foreclosure scam
where businesses would promise to help homeowners
remain in their homes for a period of time after they
had already been foreclosed on. The perpetrators
would act as attorneys and accept payment for services
that they did not provide. While the State Bar has
the power to bring a civil action in the superior
court to enjoin any violation, the action is limited
because it doesn't allow the State Bar to recover
civil penalties, including sanctions for violating
AB 888
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[an] injunction. And often the perpetrators will move
to a different location and set up a new shop?
To enhance the State Bar's enforcement of the
unauthorized practice of law, AB 888 [allows] the
State Bar to obtain the same relief of civil
penalties, costs and attorneys' fees, and remedies for
consumers that courts may no award in civil
enforcement actions by the Attorney General, district
attorneys and city attorneys. If the State Bar turns
over its investigation to the Attorney General, a DA
or some other local prosecutor, the State Bar would
also be among the licensing entities that could
recover the costs of its investigation.
Background -- The Unauthorized Practice Of Law Is Not A New
Phenomenon : As cogently noted several years ago by the Los
Angeles District Attorney's Office in its excellent briefing
manual entitled the "Unauthorized Practice Of Law Manual For
Prosecutors," published in February 2004 (and found at
http://da.co.la.ca.us/pdf/UPLpublic.pdf , cited as "Manual at
p.__"):
California's modern efforts to regulate law practice
and discourage unqualified practitioners trace back to
1927 and before. But the UPL problem of today has
taken on troubling new dimensions, as both Los Angeles
and California as a whole struggle with the challenges
and opportunities of unprecedented cultural diversity
and social change. Disturbing new forms of UPL-related
fraud are now commonplace, and the volume and
intensity of complaints increase steadily. From
unscrupulous "consultants" who prey on newcomers to
America with promises of "special influence" ? to
insurance salespersons masquerading as experienced
estate planners, to disbarred attorneys, and those
without any legal training at all, earning six figure
incomes for unqualified work-the integrity of our
system of access to justice is increasingly at risk.
It is of vital concern to consumers, honest law
practitioners, and the justice system as a whole that
we identify these problems and implement new and
better strategies to protect the public and our
institutions.
AB 888
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Defining the Practice of Law : Determining what constitutes the
"practice of law" in California is an issue which is central to
any consideration of how best to enforce the laws against
unauthorized law practice. As the above noted manual notes,
however, neither the Business and Professions Code nor other
California statutes comprehensively defines the practice of law
for all purposes. California's Supreme Court and courts of
appeals have knowingly crafted a broad definition of law
practice suited to grow with the profession "to maximize its
ability to protect its citizens from wrongs arising from the
practice - or counterfeited practice - of law." (Manual at p.
5; see., e.g., Birbower, Montalban, Condo & Frank, P.C. v.
Superior Court (1998) 17 Cal.4th 119.) The author states that
the new enforcement tools provided in this bill should
substantially assist the State Bar in its efforts to deter and
to penalize the unauthorized practice of law.
Author's Technical Amendments Reflected in This Analysis : In
order to address some earlier concerns raised by the Attorney
General's Office and some district attorneys, the author is
prudently amending this measure to no longer reference Business
and Professions Code section 17200. The effect remains the
same, but instead of referencing that code section17200, the
bill's new provisions are added directly into the State Bar Act.
Additional technical corrections are also made.
REGISTERED SUPPORT/OPPOSITION:
Support
The State Bar of California
Opposition
California Association of Legal Document Assistants [letter
received long past deadline]
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334