BILL ANALYSIS Ó
AB 888
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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
AB 888
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