BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                             Senator Noreen Evans, Chair
                              2013-2014 Regular Session


          AB 1024 (Gonzalez)
          As Amended September 6, 2013
          Hearing Date:  September 11, 2013
          Fiscal: Yes
          Urgency: No
          TH


                                        SUBJECT
                                           
                          Attorneys: Admission to Practice

                                      DESCRIPTION 

          This bill would explicitly authorize the Supreme Court to admit  
          an applicant who is not lawfully present in the United States as  
          an attorney at law in all the courts of this state upon  
          certification by the State Bar examining committee that the  
          applicant has fulfilled the requirements for admission to  
          practice law.

                                      BACKGROUND  

          In 1996, Congress enacted the Personal Responsibility and Work  
          Opportunity Reconciliation Act (PRWORA), Pub. L. No. 104-193,  
          110 Stat. 2105 (Aug. 22, 1996).  PRWORA, among other things,  
          prohibits certain categories of individuals not lawfully present  
          in the United States from receiving certain public benefits,  
          including "any grant, contract, loan, professional license, or  
          commercial license provided by an agency of a State or local  
          government or by appropriated funds of a State or local  
          government."  (8 U.S.C. Sec. 1621(c).)  PRWORA provides that a  
          state may render "an alien who is not lawfully present in the  
          United States . . . eligible for any State or local public  
          benefit for which such alien would otherwise be ineligible . . .  
          through the enactment of a State law after the date of the  
          enactment of this Act which affirmatively provides for such  
          eligibility."  (8 U.S.C. Sec. 1621(d).)  Consistent with that  
          provision, this bill seeks to expressly extend eligibility to  
          obtain a license to practice law to individuals who are not  
          lawfully present in the United States.
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          The Supreme Court is currently considering Sergio Garcia for  
          admission to practice law in the State of California.  (See In  
          re Sergio C. Garcia on Admission, S202512, May 15, 2012.)  Mr.  
          Garcia has been unlawfully present in the United States for  
          approximately 20 years, and is currently petitioning the Federal  
          government for an immigrant visa.  During his time in the United  
          States, Mr. Garcia has graduated from law school, passed the  
          California Bar Exam, and has been found by the Committee of Bar  
          Examiners to have met all the necessary requirements for  
          admission to practice law in the State of California.  However,  
          given his immigration status, it is an open question whether the  
          Supreme Court can admit Mr. Garcia to practice law.  To clarify  
          the issue, this bill would expressly provide that the Supreme  
          Court may admit an applicant who is not lawfully present in the  
          United States as an attorney at law in all the courts of this  
          state upon certification by the State Bar examining committee  
          that the applicant has fulfilled the requirements for admission  
          to practice law.

                                CHANGES TO EXISTING LAW
           
           Existing federal law  , the Personal Responsibility and Work  
          Opportunity Reconciliation Act, prohibits certain categories of  
          individuals not lawfully present in the United States from  
          receiving specified public benefits, including "any grant,  
          contract, loan, professional license, or commercial license  
          provided by an agency of a State or local government or by  
          appropriated funds of a State or local government."  (8 U.S.C.  
          Sec. 1621(c).)

           Existing federal law  provides that a state may render "an alien  
          who is not lawfully present in the United States . . . eligible  
          for any State or local public benefit for which such alien would  
          otherwise be ineligible . . . through the enactment of a State  
          law after the date of the enactment of this Act which  
          affirmatively provides for such eligibility."  (8 U.S.C. Sec.  
          1621(d).)

           Existing law  , the State Bar Act, establishes qualifications for  
          individuals who seek to be certified to the Supreme Court for  
          admission and a license to practice law.  Among other things,  
          applicants to the State Bar must: (1) be at least 18 years old;  
          (2) be of good moral character; (3) have received a juris doctor  
          (J.D.) degree or otherwise studied law diligently and in good  
          faith, as specified; (4) have passed a prescribed examination in  
                                                                      



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          professional responsibility or legal ethics; and (5) have passed  
          the general bar examination before they can be certified for  
          admission.  (Bus. & Prof. Code Sec. 6060.)

           Existing law  states that upon certification by the examining  
          committee that an applicant has fulfilled the requirements for  
          admission to practice law, the Supreme Court may admit such  
          applicant as an attorney at law in all the courts of this state  
          and may direct an order to be entered upon its records to that  
          effect.  (Bus. & Prof. Code Sec. 6064.)

           Existing law  states that every person on his admission shall  
          take an oath to support the Constitution of the United States  
          and the Constitution of the State of California, and faithfully  
          to discharge the duties of any attorney at law to the best of  
          his knowledge and ability.  (Bus. & Prof. Code Sec. 6067.)

           This bill  would provide that upon certification by the examining  
          committee that an applicant who is not lawfully present in the  
          United States has fulfilled the requirements for admission to  
          practice law, the Supreme Court may admit that applicant as an  
          attorney at law in all the courts of this state and may direct  
          an order to be entered upon its records to that effect.

                                        COMMENT
           
          1.  Stated need for the bill  
          
          The author writes:
          
            There are currently bright, young individuals, who have worked  
            hard to progress in their education and have met the rigorous  
            requirements for obtaining a law degree and a legal license,  
            including passing the California Bar Exam, but due to their  
            immigration status are unable to fulfill their dream of  
            becoming a licensed attorney.  Sergio Garcia is one of those  
            Dreamers who are currently unable to obtain a law license.   
            Having passed the State Bar examination and fulfilled all  
            other requirements, Mr. Garcia was routinely sworn into the  
            legal profession in 2011.  Two weeks later his license was  
            rescinded on the basis that the Personal Responsibility and  
            Work Opportunity Reconciliation Act passed by Congress in 1996  
            prohibits undocumented immigrants from receiving professional  
            licenses with the use of public funds, unless state law  
            explicitly overrides it.

                                                                      



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            AB 1024 is a direct response to an admission application  
            currently pending at the California State Supreme Court.  AB  
            1024 would make explicit the intent of this legislature that  
            all individuals who meet the state law qualifications for the  
            practice of law in California be affirmatively eligible to  
            apply for and obtain a law license regardless of their  
            citizenship or immigration status.  Specifically, AB 1024  
            permits the State Supreme Court to admit as an attorney any  
            applicant who is certified by the examining committee as  
            having fulfilled the requirements for admission to practice  
            law, notwithstanding their undocumented status.  This  
            provision would therefore satisfy the requirements of 8 U.S.C.  
             1621(a), to the extent that 8 U.S.C.  1621(a) is  
            applicable. 
             
            The bill does not create any authorization for employment in  
            the United States nor does it modify or displace any  
            requirement for admission to practice law.

          2.  Regulation of the Legal Profession  

          The State Bar Act, codified at Business and Professions Code  
          Section 6000, et seq., sets out a comprehensive framework for  
          regulating the practice of law and the admission of attorneys in  
          the State of California.  Among other things, the act requires  
          individuals applying for membership in the State Bar to be at  
          least 18 years old, to be of good moral character, to have  
          received a juris doctor (J.D.) degree or otherwise studied law  
          diligently and in good faith (as specified), to have passed a  
          prescribed examination in professional responsibility or legal  
          ethics, and to have passed the general bar examination.  (See  
          Bus. & Prof. Code Sec. 6060.)  The State Bar Act is  
          fundamentally a consumer protection measure designed to ensure  
          that attorneys who serve California residents meet certain  
          minimum qualifications and standards.  A license to practice law  
          in the State of California serves as recognition that the  
          licensed individual has attained the education, demonstrated the  
          knowledge, and evidenced the good moral character necessary to  
          serve competently as an attorney in California's legal  
          marketplace.  (See In re Martin (1962) 58 Cal.2d 133, 139  
          (noting the "implied representation of competency made by the  
          licensing of [an] attorney").)

          Importantly, the State Bar Act is not a pathway to  
          naturalization and a license to practice law in California is  
          not tantamount to a work authorization.  According to the  
                                                                      



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          Committee of Bar Examiners of the State of California, the  
          Supreme Court "currently admits non-immigrant aliens to the  
          practice of law in California without regard to their ability to  
          be legally employed as attorneys."  (Opening Brief of the  
          Committee of Bar Examiners at 20-21, In re Sergio C. Garcia on  
          Admission, S202512, May 15, 2012.)  While these individuals may  
          return home to their countries of origin, may remain here and  
          attempt to adjust their status, or may seek lawful permanent  
          residence after receiving their law licenses, the grant of a  
          license provides no guarantee of a pathway to lawful employment  
          in the United States.  Whether, and to what extent, a licensee  
          wants to use their California law license in future employment  
          endeavors is wholly within the purview of each licensed  
          attorney, and it is their duty to ensure that they use their law  
          license in compliance with all applicable laws and regulations.

          This bill would not disturb the existing framework for assessing  
          the qualifications of applicants to the State Bar, nor would it  
          impact the immigration and naturalization status of those  
          seeking a license to practice law in the State of California.   
          It merely clarifies that the Supreme Court may issue a law  
          license to any qualified applicant, regardless of their  
          immigration status.
          
          3.  Moral Character Requirement  

          In order to be certified to the Supreme Court for admission and  
          a license to practice law, a person must, among other things,  
          "be of a good moral character."  (Bus. & Prof. Code Sec.  
          6060(b).)  The Supreme Court interprets the moral character  
          requirement of the State Bar Act as asking whether an applicant  
          is "a fit and proper person to be permitted to practice law,"  
          and notes that "the answer to this usually turns upon whether he  
          [or she] has committed or is likely to continue to commit acts  
          of moral turpitude."  (March v. Committee of Bar Examiners  
          (1967) 67 Cal.2d 718, 720.)  Importantly, the Court has held  
          that "every intentional violation of the law is not, ipso facto,  
          grounds for excluding an individual from membership in the legal  
          profession."  (Hallinan v. Committee of Bar Examiners, State Bar  
          (1966) 65 Cal.2d 447, 459.)  As explained in Hallinan:

            There is certain conduct involving fraud, perjury, theft,  
            embezzlement, and bribery where there is no question but that  
            moral turpitude is involved.  On the other hand, because the  
            law does not always coincide exactly with principles of  
            morality there are cases that are crimes that would not  
                                                                      



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            necessarily involve moral turpitude.  In such cases,  
            investigation into the circumstances surrounding the  
            commission of the act must reveal some independent act beyond  
            the bare fact of a criminal conviction to show that the act  
            demonstrates moral unfitness and justifies exclusion or other  
            disciplinary action by the bar.

            As the United States Supreme Court emphasized in Schware v.  
            Board of Bar Examiners [(1957) 353 U.S. 232, 239], "[a] State  
            can require high standards of qualification, such as good  
            moral character or proficiency in its law, before it admits an  
            applicant to the bar, but any qualification must have a  
            rational connection with the applicant's fitness or capacity  
            to practice law.  Obviously an applicant could not be excluded  
            merely because he was a Republican or a Negro or a member of a  
            particular church.  Even in applying permissible standards,  
            officers of a State cannot exclude an applicant when there is  
            no basis for their finding that he [or she] fails to meet  
            these standards, or when their action is invidiously  
            discriminatory. "  (Hallinan v. Committee of Bar Examiners, 65  
            Cal.2d at 459-460 (internal citations omitted).)

          Furthermore, the California Supreme Court pronounced that "every  
          intentional violation of the law is not, ipso facto, grounds for  
          excluding an individual from membership in the legal  
          profession."  (Hallinan, 65 Cal.2d at 459.)  Accordingly,  
          concluding that, as a class, applicants who are not lawfully  
          present in the United States lack the moral fitness to serve as  
          attorneys in the State of California goes against California's  
          well-established public policy that an applicant's "good moral  
          character" is necessarily an individual examination.  Judgments  
          about the moral fitness of applicants must be carried out on a  
          case-by-case basis.  These case-by-case assessments are  
          currently conducted by the Committee of Bar Examiners during the  
          application process, and this bill would not disturb that  
          existing framework.
          
          4.  Ability to Represent California Clients  

          Individuals not lawfully present in the United States who are  
          admitted to the California State Bar may be automatically  
          disqualified from representing certain clients and taking on  
          some types of cases because of their immigration status.  For  
          example, federal law may preclude attorneys not lawfully present  
          in the U.S. from representing others in matters before the U.S.  
          Citizenship and Immigration Services agency.  (See e.g. In the  
                                                                      



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          Matter of Ravindra Singh Kanwal, D2009-053 (OCIJ July 8, 2009)  
          (respondent suspended from practice before the Immigration  
          Courts because he lacked authorization to work in the United  
          States).  These attorneys may also be precluded from working for  
          a law firm, corporation, or public agency by operation of  
          federal law.  (See 8 U.S.C. Sec. 1324a (prohibiting the  
          employment of an alien in the United States knowing the alien  
          lacks work authorization).)

          However, the inability to represent California residents in some  
          legal matters does not necessarily preclude all possible uses of  
          a law license.  Each person admitted to practice law in  
          California, irrespective of immigration status, is obligated to  
          "faithfully . . . discharge the duties of any attorney at law to  
          the best of his [or her] knowledge and ability."  (Bus. & Prof.  
          Code Sec. 6067.)  California attorneys have an obligation to  
          decline representation in matters where they cannot competently  
          represent the interests of their client, whether due to lack of  
          skill or experience, or because of an ethical or legal  
          restriction.  (See California Rules of Professional Conduct,  
          Rule 3-110 (Failing to Act Competently).)  This bill would not  
          alter this existing standard, and attorneys not lawfully present  
          in the United States would, like every other California  
          attorney, be duty bound to practice law competently and in a  
          manner commensurate with their legal and ethical obligations.

          5. Attorney's Oath  

          Business and Professions Code Section 6067 requires every person  
          on his or her admission to the State Bar to "take an oath to  
          support the Constitution of the United States and the  
          Constitution of the State of California, and faithfully to  
          discharge the duties of any attorney at law to the best of his  
          [or her] knowledge and ability."  As with questions regarding  
          the moral fitness of applicants to the State Bar, whether or not  
          any particular candidate can honestly and faithfully assent to  
          this oath can only be evaluated on a case-by-case basis.  (See  
          Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 297  
          ("we cannot say that aliens as a class are incapable of honestly  
          subscribing to this oath").)  According to the Committee of Bar  
          Examiners of the State of California, the "attorney's oath is a  
          forward-looking obligation imposed on the individual at the time  
          of his admission . . . The oath is not given to 'aliens as a  
          class' but to attorneys as individuals," and any applicant not  
          lawfully present in the United States "will have to subscribe to  
          it if . . . admitted."  (Opening Brief of the Committee of Bar  
                                                                      



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          Examiners at 32, In re Sergio C. Garcia on Admission, S202512,  
          May 15, 2012.)

          6.  Pending Litigation  

          In the past, this Committee has raised concerns about bills that  
          interfere with pending litigation.  Any such interference could  
          result in a direct financial windfall to a private party,  
          prevent a court from deciding an action based upon the laws in  
          place at the time the cause of action accrued, or create a  
          situation where the legislative branch is used to circumvent the  
          discretion and independence of the judicial branch.

          This bill, however, does not raise the concerns normally  
          associated with measures that could impact pending litigation.   
          First, this bill would not alter any of the requirements  
          established by the State of California for admission to the  
          State Bar.  Rather, it would exempt a particular class of  
          professional licenses from the provisions of the federal  
          Personal Responsibility and Work Opportunity Reconciliation Act,  
          an act which is unrelated to the regulation of the legal  
          profession.  A significant amount of time, effort, and financial  
          resources are required to become a licensed attorney in the  
          State of California, and this bill would not lessen these  
          requirements.

          Second, this bill is not retroactive and would not compromise  
          the independence of the judicial branch nor circumvent its  
          discretion to expound and interpret California law.  During oral  
          argument on Mr. Garcia's petition, the Supreme Court clearly  
          indicated that it was left to the Legislature, not the courts,  
          to decide whether applicants who are not lawfully present in the  
          United States ought to be admitted to the practice of law.   
          Indeed, Justice Baxter characterized the Personal Responsibility  
          and Work Opportunity Reconciliation Act as presenting "an open  
          invitation" to the Legislature to permit individuals not  
          lawfully present in the U.S. to practice law in California.   
          Given the Court's strong statements that creating exemptions to  
          PRWORA falls within the purview of the Legislature, enactment of  
          this bill would not have the effect of undermining the integrity  
          or independence of the Judiciary.
          
          
           Support  :  American Civil Liberties Union of California; American  
          Friends Service Committee; California Attorney General's Office;  
          California Faculty Association; California Immigrant Policy  
                                                                      



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          Center; Catholic Charities CYO; Central American Resource  
          Center; Chinese for Affirmative Action; Coalition for Humane  
          Immigrant Rights of Los Angeles; Consumer Attorneys of  
          California; Dolores Street Community Services; Educators for  
          Fair Consideration; National Center for Lesbian Rights; Pangea  
          Legal Services; Pomona College; United We Dream Network

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  Author

           Related Pending Legislation  :  None Known

           Prior Legislation  :  AB 844 (Lara, Chapter 619, Statutes of 2011)  
          provides that any student, including a person without lawful  
          immigration status or a person who is exempt from nonresident  
          tuition, may serve in any capacity in student government at the  
          California State University or the California Community Colleges  
          and receive any grant, scholarship, fee waiver, or reimbursement  
          for expenses that is connected with that service to the full  
          extent consistent with federal law.  This bill also eliminated  
          the requirement that a nonvoting student member of a community  
          college district governing board be a resident of California.

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