BILL ANALYSIS Ó
AB 1024
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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
AB 1024
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