BILL ANALYSIS                                                                                                                                                                                                    Ó



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          CONCURRENCE IN SENATE AMENDMENTS
          AB 888 (Dickinson)
          As Amended September 6, 2013
          2/3 vote.  Urgency 
           
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          |ASSEMBLY:  |74-0 |(May 13, 2013)  |SENATE: |36-1 |(September 10, |
          |           |     |                |        |     |2013)          |
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           Original Committee Reference:    JUD.  

           SUMMARY  :  Seeks to provide the State Bar of California with  
          stronger enforcement tools to battle the unauthorized practice  
          of law.  Specifically,  this bill  , among other things: 

          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)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. 

          3)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.  

          4)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.

          5)Provides that any penalty collected shall be paid into the  
            treasury of the State Bar and the funds received shall be used  
            as the board may direct for the purposes of providing relief  
            to clients harmed by persons engaged in the unauthorized  
            practice of law and for the purposes established pursuant to  








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            Business and Professions Code (B&P) Section 6033. 

          6)Requires the State Bar to report annually to the Assembly and  
            Senate Committees on Judiciary concerning the number of  
            complaints of the unauthorized practice of law received,  
            referrals made pursuant to subdivision (a) of B&P Section  
            6126.8, and proceedings filed by the State Bar pursuant to B&P  
            Sections 6030, 6126.3, 6126.4, and 6126.8, during the  
            preceding calendar year, as well as any collection and  
            expenditure of funds received.

          7)Specifies that the State Bar's report shall also include an  
            accounting of any collection and expenditure of funds  
            authorized by B&P Section 6126.8 during the preceding calendar  
            year.

           The Senate amendments  : 

          1)Specify that in an action under this act, any penalty  
            collected shall be paid into the treasury of the State Bar and  
            the funds received shall be used as the board may direct for  
            the purposes of providing relief to clients harmed by persons  
            engaged in the unauthorized practice of law and for the  
            purposes established pursuant to B&P Section 6033.

          2)Require the State Bar to report annually to the Assembly and  
            Senate Committees on Judiciary concerning the number of  
            complaints of the unauthorized practice of law received,  
            referrals made pursuant to subdivision (a) of B&P Section  
            6126.8, and proceedings filed by the State Bar pursuant to B&P  
            Sections 6030, 6126.3, 6126.4, and 6126.8, during the  
            preceding calendar year, as well as any collection and  
            expenditure of funds received.

          3)Provide that the report shall also include an accounting of  
            any collection and expenditure of funds authorized by B&P  
            Section 6126.8 during the preceding calendar year. The report  
            required by this section may be included in the report  
            described in B&P Section 6086.15.
           
           4)Add an urgency clause allowing this bill to take effect  
            immediately upon enactment.
           
          FISCAL EFFECT  :  None.  This bill is keyed non-fiscal by the  
          Legislative Counsel. 








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          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  
               [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 now 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.

          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 (found at  
          http://da.co.la.ca.us/pdf/UPLpublic.pdf):
           
               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  








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               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.
           
           The bill specifies that the State Bar is to report annually to  
          the Assembly and Senate Committees on Judiciary concerning the  
          number of complaints of the unauthorized practice of law  
          received, referrals made pursuant to subdivision (a) of B&P  
          Section 6126.8, and proceedings filed by the State Bar pursuant  
          to B&P Sections 6030, 6126.3, 6126.4, and 6126.8, during the  
          preceding calendar year, as well as any collection and  
          expenditure of funds received.  The bill further specifies that  
          any penalty collected shall be paid into the treasury of the  
          State Bar to be directed to the Justice Gap Fund, which provides  
          small but important supplemental funding for qualified legal  
          services projects and support centers according to the  
          established interest on lawyer's trust accounts formula, and  
          also as needed for the purposes of providing relief to clients  
          harmed by persons engaged in the unauthorized practice of law  
          when alternative avenues are inadequate.
           

          Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334


          FN: 0002770  
          











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