BILL ANALYSIS                                                                                                                                                                                                    



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          Date of Hearing:  September 12, 2013

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                 AB 1024 (Gonzalez) - As Amended:  September 6, 2013

                                   FOR CONCURRENCE
           
          SUBJECT  :  ATTORNEYS: ADMISSION TO PRACTICE

           KEY ISSUE  :  SHOULD THE LEGISLATURE ENACT ADDITIONAL STATUTORY  
          AUTHORIZATION TO MAKE CLEAR THAT UNDOCUMENTED IMMIGRANTS WHO  
          OTHERWISE SATISFY THE REQUIREMENTS FOR ADMISSION TO PRACTICE LAW  
          MAY BE ADMITTED?

                                      SYNOPSIS

          This bill is a direct response to an admission application by  
          Sergio Garcia currently pending at the California State Supreme  
          Court.  Federal law requires enactment of a state law  
          affirmatively providing eligibility for public benefits to  
          undocumented immigrations if the public benefit consists of a  
          grant, contract, loan, professional license, or commercial  
          license, and the public benefit is provided by an agency of a  
          State or local government or by appropriated funds of a State or  
          local government.  This bill would ensure that the required law  
          affirmatively provides the required eligibility, assuming that  
          admission to the State Bar by the California Supreme Court is a  
          public benefit provided by a state agency or by appropriated  
          funds so as to trigger the obligation to enact a state law, and  
          further assuming that such a law has not already been enacted.   
          According to supporters, there are currently many 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 license to practice law, but due to their  
          immigration status may be unable to fulfill their dreams.  
          Insofar as existing law is not adequate to authorize his  
          admission, this bill would provide the required statutory  
          approval.

           SUMMARY  :  Provides that upon certification by the examining  
          committee of the State Bar 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  








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          and may direct an order to be entered upon its records to that  
          effect.

           EXISTING LAW  :

          1)Prohibits, under the federal Personal Responsibility and Work  
            Opportunity Reconciliation Act, 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).)

          2)Provides, under federal law, 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).)

          3)Establishes, under the State Bar Act, 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 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.)

          4)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.)

          5)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.)








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           FISCAL EFFECT  :  Unknown

           COMMENTS  : The author explains the bill as follows:
          
               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.

               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.

           Need For The Bill.   The federal Personal Responsibility and Work  
          Opportunity Reconciliation Act (PRWORA), Pub. L. No. 104-193,  
          110 Stat. 2105 prohibits certain categories of individuals not  
          lawfully present in the United States from receiving certain  








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          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. Section 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 [Aug. 22, 1996]  
          which affirmatively provides for such eligibility."  (8 U.S.C.  
          Section 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.

          Federal law thus requires enactment of a state law affirmatively  
          providing eligibility if two conditions are met: (1) the public  
          benefit consists of a grant, contract, loan, professional  
          license, or commercial license, and (2) the public benefit is  
          provided by an agency of a State or local government or by  
          appropriated funds of a State or local government.  Assuming  
          that admission to the State Bar by the California Supreme Court  
          is a public benefit provided by a state agency or by  
          appropriated funds so as to trigger the obligation to enact a  
          state law, and further assuming that such a law has not already  
          been enacted, this bill would ensure that the required law  
          affirmatively provides the required eligibility.

          The Supreme Court has not rendered a decision whether Sergio  
          Garcia's immigration status precludes his eligibility for  
          admission to practice law.  (In re Sergio C. Garcia on  
          Admission, S202512, May 15, 2012.)  Mr. Garcia has reportedly  
          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 apparently 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 may be uncertain whether the  
          Supreme Court can admit Mr. Garcia consistently with federal  
          law.  Indeed, the U.S. Department of Justice has filed an amicus  
          brief in the Garcia case opining that 8 U.S.C. Section 1621  
          precludes issuance of a law license to Mr. Garcia, but also  
          noting that federal law allows California to enact a law making  








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          undocumented immigrants eligible for this public benefit.  

          Although many eminent individuals and institutions, including  
          the State Bar, have argued in the Garcia case that existing law  
          should be sufficient, this bill seeks to further clarify the  
          question by expressly providing that the Supreme Court may admit  
          an applicant who is not lawfully present in the United States as  
          an attorney at law in 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.

           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.)  
           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").)

          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 his or her  
          immigration status.
           
          Ability to Represent California Clients  .  Of course, admission  
          to practice law is not a pathway to naturalization or tantamount  
          to a work authorization.  According to the 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  








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          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 wishes to use his or her  
          California law license in future employment endeavors is left to  
          the discretion of each licensed attorney, and it is the  
          attorney's duty to ensure that his or her law license is used in  
          compliance with all applicable laws and regulations.  For  
          example, there appears to be no prohibition against serving  
          clients as a sole practitioner.  Thus, even if a person admitted  
          to practice law may be limited in their ability to be employed,  
          or to perform certain work, these limitations would not  
          necessarily preclude all possible uses of a law license.

           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 as a question 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.)  

          Furthermore, the California Supreme Court has made clear 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,  
          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.
          
           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  








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          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 any particular candidate can honestly and faithfully  
          assent to this oath must 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 Examiners at 32, In re Sergio C.  
          Garcia on Admission, S202512, May 15, 2012.)

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Civil Liberties Union of California
          American Friends Service Committee
          California Attorney General's Office
          California Faculty Association
          California Immigrant Policy 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 on file
           
          Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334 










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