BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 1159 (Gonzalez)
As Amended August 22, 2013
Hearing Date: August 26, 2013
Fiscal: Yes
Urgency: Yes
BCP:rm
SUBJECT
Immigration Services
DESCRIPTION
This bill would require attorneys providing immigration reform
act services, as defined, to provide a client with a written
contract containing specified information, including a
description of the services that the attorney anticipates will
be performed, the basis of compensation for these services, and
a statement informing the client that he or she may report
complaints regarding the attorney's services to specified
entities. This bill would require the provisions of those
contracts to be stated in English and the client's native
language, as specified.
The bill would also prohibit an attorney or an immigration
consultant from demanding or accepting the advance payment of
any funds for immigration reform act services before the
enactment of an immigration reform act, as defined, and would
require any funds received after the effective date of this
bill, but before the enactment of an immigration reform act, to
be refunded to the client. The bill would require any funds
that were received before the effective date of the bill for
services not yet rendered to be either refunded to the client or
deposited in a client trust account, as specified.
This bill would increase the amount of bond required to be filed
by an immigration consultant from $50,000 to $100,000, and
require consultants to itemize their contracts, establish a
client trust account, and to deposit any funds received from the
(more)
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client prior to performing immigration reform act services.
The bill would make it a violation of specified provisions of
law relating to the unauthorized practice of law for any person
who is not an attorney to literally translate from English into
another language the phrases "notary public," "notary,"
"licensed," "attorney," "lawyer," or any other terms that imply
that the person is an attorney.
BACKGROUND
The Immigration Consultants Act (ICA) was enacted in 1986 to
regulate activities of immigration consultants who perform a
variety of services for persons who seek adjustment of their
immigrant status at minimal cost. The explosion of immigration
applications, a result of the 1986 federal and amnesty law
revisions, necessitated the regulation of these persons. The
ICA and its subsequent amendments now require immigration
consultants to, among other things: (1) provide clients with
written contracts; (2) file a bond with the Secretary of State;
and (3) post a notice of compliance with the bonding requirement
and a statement that the immigration consultant is not an
attorney (if pertinent) or that the attorney is authorized under
some other federal rule or is an attorney from another state.
Due to concerns that pending federal immigration reform could
result in a similar increase in immigration applications, this
bill seeks to enact various restrictions on persons who would
offer services pursuant to that reform. Regarding the impact of
the pending proposal for reform, the Border Security, Economic
Opportunity, and Immigration Modernization Act of 2013 (S. 744),
("Act") the United States' Senate Judiciary Committee Report
noted:
One of the key components of the Border Security, Economic
Opportunity and Immigration Modernization Act (S. 744) is
the path to earned citizenship for the estimated 11 million
undocumented immigrants living and working in the shadows of
American society. This legislation will give this
population a tough but fair opportunity to come forward and
earn their citizenship by meeting several requirements,
including paying fees and fines, passing national security
and criminal background checks, paying their taxes, and
learning English.
During the Committee's consideration of S. 744, and its
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extensive study and consideration of comprehensive
immigration reform in previous Congresses, the Committee has
heard from law enforcement officials, community leaders,
faith groups, civil rights groups, and individual members of
the public about the urgent need to address the millions of
undocumented immigrants living in the United States.
Undocumented immigrants have a tenuous place in our
communities. They live in constant fear of deportation. If
they are victims of crime, they often do not report those
crimes to State and local law enforcement. They work for low
wages, unable to defend themselves from employer harassment
and exploitation. Many have been in the country for 10
years or more, have made valuable contributions to their
communities, and have immediate relatives who are American
citizens. The prospect of deporting these individuals would
not only be prohibitively expensive, but would also have
untold damaging effects on our economy, which relies on the
work, taxes, and purchasing power of undocumented immigrants
even as our legal system fails to fully recognize or protect
them. It would separate families and run counter to our
ideals as a Nation. Instead, S. 744 outlines a tough but
fair path that will bring individuals out of the shadows and
into the lawful immigration system, by allowing eligible
applicants to adjust to the legal status of Registered
Provisional Immigrant (RPI).
(http://www.gpo.gov/fdsys/pkg/CRPT-113srpt40/pdf/CRPT-113srpt
40.pdf.)
The Act was passed by the Senate on June 27, 2013, and is
currently in the House of Representatives. To proactively
address the fraud that likely will occur as a result of the
Act, this bill would impose various restrictions on
immigration consultants and attorneys who offer services
pursuant to any pending or future immigration reform act,
including a prohibition on accepting advance fees before the
immigration reform is enacted and requiring attorneys to
provide a translated written contract with specified elements.
This bill was approved by the Senate Committee on Business,
Professions and Economic Development on August 19, 2013 by a
vote of 9 to 0.
CHANGES TO EXISTING LAW
1. Existing law requires all attorneys who practice law in
California to be members of the State Bar of California (State
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Bar) and establishes the State Bar for the purpose of
regulating the legal profession. (Bus. & Prof. Code Sec. 6000
et seq.)
Existing law provides that in non-contingent fee matters, an
attorney must have a written contract for services with their
client whenever the client's total expense, including fees,
will foreseeably exceed $1,000, as specified. The written
contract must contain: (1) any basis compensation; (2) the
general nature of the legal services to be provided; and (3)
the respective responsibilities of the attorney and the client
as to the performance of the contract. Failure to comply with
the written contract requirement renders the agreement
voidable at the option of the client, and the attorney shall,
upon the agreement being voided, be entitled to collect a
reasonable fee. (Bus. & Prof. Code Sec. 6148 (a), (c).)
This bill would provide that it is unlawful for an attorney to
demand or accept advance payment of any funds from a person
for immigration reform act services before the enactment of an
immigration reform act. Any funds received after the
effective date of this bill, but, before the enactment of an
immigration reform act must be refunded to the client.
This bill would further provide that:
if an attorney providing immigration reform act services
accepted funds prior to the effective date of this bill,
and the services provided in connection with payment of
those funds were rendered, the attorney shall provide the
client with a statement of accounting describing services
rendered; and
any funds received before the effective date of this
bill, and before the enactment of an immigration reform
act, for which immigration reform act services have not yet
been rendered, shall either be refunded to the client or
shall be deposited in a client trust account. If the
attorney elects to deposit funds in a client trust account,
he or she shall provide a written notice to the client, in
English and the client's native language, that there are no
benefits or relief that are available and that no
application may be processed until enactment of an
immigration reform act and the related necessary federal
regulations and forms.
This bill would require an attorney providing immigration
reform act services to, prior to providing those services,
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provide the client with a written contract. That contract
shall include, but need not be limited to, all of the
following:
a description explaining the services the attorney
anticipates performing;
the basis for compensation, as specified; and
a statement informing the client that he or she may
report complaints to the Office of Immigration Assistance
of the Department of Justice, to the State Bar, or to the
bar of the court of any state, possession, territory, or
commonwealth of the United States or District of Columbia,
as specified.
This bill would require the provisions of the written contract
to be stated both in English and the client's native language,
except as follows:
upon consent of the client, the contract need not be
written in English, and may instead be written in the
client's native language or another language that the
client understand; and
for unwritten languages and languages that, in a
reasonable person's estimation, are extremely rare or
uncommon, the provisions of the contract shall be written
in English and shall be orally translated to the client in
a language the client can understand. If a contract is
orally translated, the written contract shall include a
verification that the provisions have been orally
translated, that the translator is competent to make the
translation, and that the translation is true and accurate
to the best of the translator's abilities.
This bill would state that a written contract is void if it
does not comply with the above requirements.
This bill would require the State Bar to work with the
necessary professional association for lawyers practicing
immigration law to prepare and provide forms for contracts,
which the State Bar shall translate into the languages
specified in Civil Code Section 1632.
This bill would not apply the above written contract and
translation requirements to attorneys who provide immigration
reform act services in accordance with any of the following:
(1) qualified legal services project or support center; (2) a
nonprofit, tax-exempt corporation that helps clients complete
application forms in immigration matters free of charge or for
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a nominal fee; or (3) for free, at no cost to the client, as
pro bono legal services.
This bill would provide that the above exempted attorneys
must, instead, provide a written notice to the client
containing a description of the services, basis for
compensation, and where he or she may report complaints. This
bill would state that the notice is not a contract.
This bill would apply the above provisions to:
an attorney who is an active member of the State Bar who
provides immigration reform act services; and
an attorney who is not an active member but: (1) is
authorized by federal law to practice law and to represent
persons before the Board of Immigration Appeals of the
United States Citizenship and Immigration Services; and (2)
is providing immigration reform act services in an office
or business in California.
This bill would define "immigration reform act" as any pending
or future act of Congress that is enacted after the effective
date of this section but before January 1, 2017, including but
not limited to the "Border Security, Economic Opportunity, and
Immigration Modernization Act" (S. 744, 2013), as specified.
This bill would define immigration reform act services as
services necessary in the preparation of an application and
other related initial processes in order for an undocumented
immigrant, as specified, to attain lawful status under the
immigration reform act.
2. Existing law provides that no person shall practice law in
California unless the person is an active member of the State
Bar. (Bus. & Prof. Code Sec. 6125.)
Existing law provides that any person advertising or holding
himself or herself out as practicing or entitled to practice
law or otherwise practicing law who is not an active member of
the State Bar, or otherwise authorized pursuant to statute or
court rule to practice law in this state at the time of doing
so, is guilty of a misdemeanor. (Bus. & Prof. Code Sec.
6126(a).)
Existing law authorizes the State Bar to enjoin any violations
or threatened violations of the unauthorized practice of law
in a civil action brought in the superior court by the State
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Bar. (Bus. & Prof. Code Sec. 6030.)
This bill would provide that it is a violation of the existing
prohibition on non-attorneys advertising or holding themselves
out as entitled to practice law for any person who is not an
attorney to literally translate from English into another
language, in any document, any words or titles, including
"notary public," "notary," "licensed," "attorney," or "lawyer"
that imply the person is an attorney, as specified. This bill
would provide that a person who violates the translation
prohibition is liable for a civil penalty not to exceed
$1,000, as specified.
3. Existing law , the Immigration Consultants Act (ICA),
regulates the activities of immigration consultants by
requiring them to pass a background check conducted by the
Secretary of State (SOS), file a $50,000 bond with the SOS, to
comply with specified notice requirements, and to provide
clients with written contracts in their native language, as
specified. (Bus. & Prof. Code Sec. 22440 et seq.)
Existing law further prohibits an immigration consultant from
literally translating words or titles that imply that the
person is an attorney, as specified. (Bus. & Prof. Code Sec.
22442.3.)
Existing law provides that a violation of the ICA subjects a
person to a civil penalty not to exceed $100,000 for each
violation, is a misdemeanor punishable by a fine of not less
than $2,000 or more than $10,000, and that the second or
subsequent violation is a felony. (Bus. & Prof. Code Sec.
22445.)
Existing law allows a person claiming to be aggrieved to bring
a civil action for injunctive relief, or damages, or both, and
requires a court finding a violation to award the plaintiff
actual damages plus treble damages, as specified, and
reasonable attorney's fees and costs. (Bus. & Prof. Code Sec.
22446.5.) Existing law further allows a person who is awarded
damages to recover those damages from the required bond, as
specified. (Bus. & Prof. Code Sec. 22447.)
This bill would additionally:
increase the amount of the bond to $100,000,
effective July 1, 2014;
require each service to be performed to be itemized
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with an explanation of the purpose and process of the
service, and make corresponding changes;
revise the existing exemptions for non-profit tax
exempt corporations who help client complete application
forms by clarifying that only a nominal fee may be
charged;
require an immigration consultant who provides
immigration reform act services to establish and deposit
into a client trust account any funds received from a
client prior to performing those services;
allow an immigration consultant providing
immigration reform act services for the client to
withdraw funds received from that client: (1) after
completing one or more of the itemized services, as
specified; or (2) after completing one or more of the
documents listed, as specified;
prohibit an immigration consultant from demanding or
accepting advance payment of any funds from a person for
immigration reform act services before the enactment of
an immigration reform act;
provide that funds received after the effective date
of this bill but before enactment of an immigration
reform act must be refunded to the client;
provide that for funds received before the effective
date of the bill: (1) the consultant must provide the
client with an accounting for services that were
rendered; and (2) any funds received for which services
have not yet been rendered must be refunded or deposited
into a client trust account, as specified; and
state that a person who violates the above
restrictions on advance fees shall be subject to a civil
penalty not to exceed $1,000, as specified, and require a
court to grant a prevailing plaintiff reasonable
attorney's fees and costs.
This bill would state that a violation of the existing
prohibition on translating terms that imply the person is an
attorney is a violation of the State Bar Act's prohibition on
non-attorney's holding themselves out to be authorized to
practice law. In addition to the remedies and penalties under
the ICA law, this bill would provide that a person who
violates the translation prohibition would be subject to a
civil penalty of up to $1,000 per day for each violation, as
specified.
COMMENT
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1. Stated need for the bill
According to the author:
AB 1159 is an important consumer protection measure that
will immediately assist in helping to protect the vulnerable
community that will be seeking assistance under
comprehensive immigration reform.
Immigration fraud has already begun. A few bad actors are
already making guarantees they cannot fulfill, and are
already taking fees for services they cannot possibly
provide until the federal government has acted.
If immigration reform passes, it is estimated that 11
million nationwide will be impacted. Of that 11 million,
approximately 2.55 million live in California. No one knows
how many of the 2.55 million will be victimized by fraud,
but we do know the risk of fraud is very high since the
fraud is already occurring. . . AB 1159 is designed to
significantly help reduce fraud and to provide appropriate
enforcement tools to recover against those individuals who
do engage in fraudulent behavior.
AB 1159 is a reasonable approach to ensure consumer
protection for immigrants. By putting in place these
safeguards now, the bill will help prevent the fraud at the
front end, avoiding more significant repercussions down the
road.
2. Attorney provisions
In response to the likely fraud as the result of pending federal
immigration reform, this bill would: (1) restrict the ability
for attorneys to receive advance fees for immigration reform act
services before the reform is enacted; and (2) generally require
an attorney performing immigration reform act services to use a
written contract that is translated into the client's native
language. Regarding the need for those restrictions, the State
Bar of California (State Bar), sponsor, contends: "Without
question, the vast majority of immigration law practitioners are
superb lawyers who provide quality representation to their
clients. However, a small percentage of practitioners, both
lawyers and non lawyers, will likely cause harm to those clients
that are seeking immigration reform services. Tragically, a
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small number of practitioners have the potential of harming a
large number of clients given the sophistication of advertising
schemes today. Law enforcement and regulatory bodies are
already reporting suspicious behavior by a small number of
practitioners who are taking money from these clients even
though Congress has not yet passed comprehensive immigration
reform services. We need to do everything reasonably possible
to protect this most vulnerable community . . . ."
The California Chapters of the American Immigration Lawyers
Association and other organizations, in opposition, generally
assert that AB 1159 would have a harmful effect on the very
population it purportedly seeks to protect and would set two bad
precedents: "a State Bar imposing an extra layer of regulation
on a subset of attorneys based only on their practice area,
rather than for a valid reason such as malfeasance, and a State
Bar restricting the ability of attorneys who are not among its
members to practice law in California." The California Labor
Federation, in support of the restrictions, argues that
"[i]mmigration services fraud has a devastating impact on the
victims. Immigrants can lose thousands of dollars in fees for
applications, petitions, and documents that are incorrectly
filed or never filed at all. The result is that legitimate
applications for permanent residency or citizenship are delayed
or invalidated. In the worst case scenarios the victim may be
subject to removal proceedings."
a. Advance fee prohibition
This bill would prohibit an attorney from demanding or
receiving advance payment of any funds from a person for
immigration reform act services before the enactment of an
immigration reform act. That prohibition seeks to target
attorneys who are reportedly advertising and collecting fees
for services in connection with immigration reform that may or
may not be enacted in the future. Although, as noted in the
Background above, the Border Security, Economic Opportunity,
and Immigration Modernization Act of 2013 (S. 744) is
currently in the House of Representatives, it is unclear
whether it will actually be passed, or, if passed, if it will
resemble the current form of the Act. As a result, this bill
seeks to prohibit the collection of fees that attorneys may be
currently collecting for reform that may never be enacted.
The American Immigration Lawyers Association (AILA), in
opposition, asserts: "AILA understands the need to restrict
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the ability of attorneys to collect fees for a service that is
not permitted or warranted under existing law. There are many
ethics rules attorneys must follow on this subject. However,
[Section] 6242 of AB 1159 would also prohibit an attorney from
completing critical research and background work. AILA
believes that these services are legitimate and permitted
under current law. AB 1159 should not impede an attorney's
ability to service a client."
Regarding the concerns raised by the opposition, staff notes
that the bill's language prohibits advance fees "from a person
for immigration reform act services before the enactment of an
immigration reform act," but defines immigration reform act
services as "the services necessary in the preparation of an
application and other related initial processes . . . to
attain lawful status under an immigration reform act." Since
the same steps necessary in the preparation of an application
under the potential immigration reform act may be the same as
those taken under existing law, the issue raised essentially
becomes whether the proposed statutory language could be
construed as applying to generic services that happen to be
the same as preparations required under any enacted reform
act. To address this issue, the author may wish to consider
the following amendment to clarify that immigration reform act
services are those offered in connection with pending or
future immigration reform.
Suggested amendment :
On page 4, line 38, after services insert:
offered in connection with an immigration reform act that
are
This bill would further provide that if fees were collected
before this bill is enacted, and the services were rendered,
the attorney must provide the client with a statement of
accounting for those services. For fees that were collected
before enactment and the services have not been rendered, this
bill would require the attorney to refund those fees or place
them in a client trust account. If placed in a trust account,
the attorney must provide a specified notice in English and
the client's native language. Any advance fees received after
the effective date of the bill, but before the enactment of an
immigration reform act, must be returned to the client.
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b. Written contract
This bill would also require an attorney providing immigration
reform act services to, prior to providing those service,
provide the client with a written contract that includes: (1)
a description of the services to be performed; (2) basis for
compensation for the services; and (3) statement regarding
where to report complaints. This bill would also require the
provisions to be stated in both English and the client's
native language except where the client has consented to have
the contract not be written in English, as specified, or if
the native language is unwritten, extremely rare or uncommon.
If the language is unwritten, rare, or uncommon, the contract
must be written in English and orally translated to the client
in a language the client can understand and include
verification that the contract has been orally translated.
AILA, in opposition, argues that: "California Civil Code
[Section] 1632 already mandates a translated contract or
agreement for legal services; not just for immigration cases.
Therefore, it is unclear why the provisions of AB 1159 are
necessary. Furthermore, [Civil Code Section] 1632 also
specifies that key terms and conditions of the contract must
be included in the translated contract. AB 1159 could result
in conflicting requirements for attorneys in California. In
the alternative, AILA recommends that the author consider
amending the bill to rely on a standard 'advisement' form
prepared by the State Bar of California in various languages.
Attorneys could then distribute the form to clients to
satisfactorily comply with any new mandate." Staff notes that,
from a policy standpoint, it appears essential for clients to
understand the nature and details of their contract with an
attorney for immigration reform act services. Alternatively,
such a requirement should arguably be crafted in a way so as
to not discourage qualified immigration attorneys from
providing services to certain communities due to their native
language. Regarding the potential unintended consequences,
AILA contends that "[m]andating that attorneys provide
translated written contacts could have the unintended
consequence of putting honest immigration attorneys at risk of
extraneous penalties by the State Bar of California, if there
is an error or mistake in their translation of any part of
that agreement."
Despite those concerns, as noted by AILA, Civil Code Section
1632 already generally requires contracts entered into for
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purposes of legal services to be translated if negotiated
primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean.
Thus, some attorneys are presumably already translating
immigration related contracts when negotiating in one of the
languages specified by Section 1632. To further facilitate
the translation of these contracts, and respond to concerns
raised by the opposition, the bill would require the State Bar
to work with the necessary professional association for
attorneys practicing immigration law to prepare and provide
forms for contracts, which the State Bar must translate into
the languages specified by Section 1632.
To further address workability issues, the following
amendments would revise the translation provision by making
the requirement to provide a translation operative after the
State Bar posts the translations, clarifying that attorneys
who use the State Bar's translations are deemed to comply with
the bill's requirements, and providing that the State Bar must
make the forms and their translations available on their
Internet Web site free of charge.
Author's amendments:
On page 6, strike out lines 39 through 40, inclusive and on
page 7, strike lines 1 through 3, inclusive, and insert:
(5) This subdivision shall become operative 30 days after
the State Bar makes the forms and their translations
available on their Internet web site pursuant to
subdivision (c)(2).
(c) (1) The State Bar shall work with the necessary
professional association for lawyers practicing immigration
law to prepare and provide forms that include the
information specified in paragraphs (1) to (3), inclusive,
of subdivision (a). The State Bar shall translate those
forms into the languages specified in Civil Code section
1632, and, upon request, may translate the forms into any
other language.
(2) The State Bar shall make the forms and their
translations described in paragraph (1) available on their
Internet Web site free of charge no later than 90 days
after the implementation of regulations for an immigration
reform act.
(3) An attorney who uses the forms provided by the State
Bar pursuant to this subdivision shall be deemed to comply
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with the requirements of subdivision (b).
Additionally, this bill would provide that a written contract
is void if it does not comply with the translation
requirements described above. To ensure that contracts are
not voided contrary to the desires of the client, the author
may wish to consider the following amendment to clarify that a
contract which does not comply with the translation
requirements is voidable by the client (thereby leaving it to
the client's discretion).
Suggested amendment :
On page 6, strike out lines 32 through 33, inclusive, and
insert:
(4) A written contract is voidable by the client if it does
not comply with this subdivision.
It should be noted that the August 22, 2013 amendments
exempted attorneys who perform immigration reform act services
in connection with a qualified legal services project or
support center, a nonprofit tax-exempt corporation that helps
clients complete application forms free of charge or for a
nominal fee, or, for free at no cost as pro bono legal
services. While exempted from the contract and translation
requirements, this bill would still require those attorneys to
provide a written notice to the client containing a
description of the services, basis for compensation, and where
to report complaints. Staff notes that concerns have been
raised about the proposed written notice, and, that it is
unclear whether the amendment to the definition of
"immigration reform act services" in Comment 2(a) addresses
concerns about under what circumstances the notice must be
provided.
c. Application of attorney provisions
This bill would apply the above provisions regarding advance
fees and written contracts to attorneys who are active members
of the State Bar as well as attorneys who are not active
members but (1) provide immigration reform act services in an
office or business in California and (2) are authorized by
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federal law to practice law and to represent persons before
the Board of Immigration Appeals of the United States
Citizenship and Immigration Services. From a policy
standpoint, that provision would appear to apply the above
restrictions with some uniformity so that clients who visit
attorneys in California (aside from those exempted above) are
treated similarly.
AILA, in opposition, contends that "[u]nder Immigration
practice, many out-of-state attorneys work with [U.S.
Citizenship and Immigration Services (USCIS)] offices like the
California Service Center (CSC) to represent individuals in
California. The state should not be involved in seeking to
restrict the ability of an attorney, authorized by federal
law, to practice law in California. Such regulations are
likely preempted by federal law. AILA would ask that the
provisions relating to federal immigration attorneys be
removed." The State Bar, in response, contends that:
"California under its police powers has jurisdiction over
non-California lawyers who are doing business in the State and
representing immigrant clients residing in the State. Those
lawyers have to comply with all other existing laws when doing
business in the state. The ban on no advance payments and
written contracts in AB 1159 regulates the transaction with
clients, not what the lawyer may or may not do before BIA or
USCIS."
3. Restrictions on immigration consultants
As noted in the Background, existing law imposes numerous
requirements on those who would act in the capacity of an
immigration consultant. Consultants must pass a background
check, provide clients with a written contract in English and
the client's native language, conspicuously display a statutory
notice with specified information (including that the consultant
is not an attorney), and file a $50,000 surety bond with the
Secretary of State. Existing law also prohibits consultants
from making false or misleading statements, making guarantees or
promises unless it is in writing and there a basis in fact for
the promise or guarantee, and making any statement that the
consultant can obtain special favors. Violations of those
provisions is a misdemeanor, subject a person to a civil penalty
not to exceed $100,000, and can be a felony if there are repeat
violations.
This bill would further strengthen those provisions by: (1)
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requiring the written contract to itemize each service to be
performed; (2) requiring consultants who provide immigration
reform act services to deposit any funds received into a client
trust account and only withdraw funds upon completing an
itemized service or a document listed; (3) prohibiting
consultants from demanding or accepting advance payment of any
funds from a person for immigration reform act services before
the reform is enacted; (4) imposing a civil penalty of up to
$1,000 per day for violations of the advance fee prohibition;
and (5) increasing the amount of the required surety bond from
$50,000 to $100,000.
4. Translations
Under existing law, immigration consultants are prohibited from
literally translating, with the intent to mislead, any words or
titles, including notary public, notary, licensed, attorney, or
lawyer, that imply that the person is an attorney. (Bus. &
Prof. Code Sec. 22442.3.) That prohibition was added by AB 2520
(Napolitano, Chapter 561, Statutes of 1994) in response to
instances of consumer fraud by non-attorney immigration service
providers. This Committee's analysis noted that the prohibition
was supported by the findings of a State Bar Task Force as
follows:
Testimony at the two public hearings revealed that the
highest incidence of consumer fraud appears to be engaged in
by non-attorney immigration service providers, although
complaints were also heard regarding activities engaged in
by both out-of-state and California-licensed attorney
immigration service providers. Many non-attorney service
providers employ storefront advertisements which hold
themselves out as a "notario," "licenciado," or "abogado;"
terms which can connote legal training or licensure to
members of the Latin-American immigrant community.
Advertisements are often misleading and deceptive, raising
false consumer hopes in an attempt to attract business.
Non-attorney service providers appear to frequently change
business locations to: 1) avoid unhappy clients; 2) avoid
law enforcement investigation and prosecution; and 3)
attract fresh customers.
This bill would strengthen that existing translation prohibition
(and a related prohibition regarding the surety bond) by
providing that a violation is also a violation of the Star Bar
Act's prohibition on non-attorney's advertising or holding
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themselves out as practicing or entitled to practice law, and,
add a civil penalty of up to $1,000 per day for each violation.
This bill would also add similar language to the State Bar Act
that would prohibit any person who is not an attorney from
literally translating any words that imply the person is an
attorney, and, specifically prohibit the translation of the
phrase "notary public" into Spanish as "notario public" or
"notario." Consistent with the proposed change to the ICA, this
bill would add a $1,000 civil penalty to the prohibition on
translation that would be added to the State Bar Act.
Regarding the risks posed by non-attorneys representing
themselves as "notario," AILA's public service Internet Web site
entitled "Stop Notario Fraud" states that:
Notarios are not lawyers. They also are not valid
accredited representatives approved by the U.S. government.
Often, they use the term "notario publico" to advertise
their services in the Hispanic community. That title is not
recognized in the United States as it is in some Latin
American countries.
While many legitimate community and religious organizations
provide immigration-related services, non-lawyers who
advertise as legal "consultants" or "notarios publicos" are
not authorized or qualified to help with immigration
law-related matters.
These notarios often take advantage of people from their own
ethnic community. Some attempt to provide legal service, but
are not competent. Still others will take your money without
ever intending to file your documents or help you in any
way. Don't let them harm you and your family! (Stop Notario
Fraud .)
5. Potential future amendments
The author has raised the possibility of further amending the
bill to: (1) provide that if an attorney opts to translate the
three required items inside the contract rather than using a
form, those items must be at the top of the contract; and (2)
authorize the State Bar to seek civil penalties against
immigration consultants for violations of the existing
prohibition on translating words or title that imply the person
is an attorney. As this bill is currently in its last policy
committee hearing in the Senate, the Committee should consider
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whether those potential amendments raise additional policy
issues that may require further vetting by this Committee.
Support : American Federation of State, County, and Municipal
Employees (AFSCME), AFL-CIO; California Catholic Conference;
California Labor Federation; San Diego Volunteer Lawyer Program,
Inc.; Sheriff Leroy D. Baca; UFW; UNITE HERE Local 30; Western
Center on Law & Poverty
Opposition : AIDS Legal Referral Panel; American Immigration
Lawyers Association; Asian American Bar Association of the
Greater Bay Area; Asian Law Alliance; Asian Pacific Islander
Legal Outreach; Central American Resource Center; Justice for
Our Neighbors - Bay Area Immigration Taskforce; National Center
for Lesbian Rights; National Lawyers Guild Bay Area Chapter;
Northern California Chapter of the American Immigration Lawyers
Association; Northern California Chapter of the Iranian American
Bar Association; Omid Advocates; Pangea Legal Services; San
Diego Chapter of the American Immigration Lawyers Association;
San Diego Chapter of the Iranian American Bar Association;
Southern California Chapter of the American Immigration Lawyers
Association; one individual
HISTORY
Source : State Bar of California
Related Pending Legislation : AB 888 (Dickinson) would allow the
State Bar to bring a civil action for any violation of the
existing prohibitions on the unauthorized practice of law, and
require the court in those actions to impose a civil penalty,
consider providing relief to any injured party, and award the
State Bar reasonable attorney's fees and costs. This bill is
currently on the Senate Floor.
Prior Legislation :
AB 630 (Chu, Chapter 605, Statutes of 2006) increased the
regulation of immigration consultants by: (1) requiring
fingerprinting and background checks; (2) authorizing the
Secretary of State to issue cease and desist orders; and (3)
requiring the Secretary of State to post information on its
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Internet Web site about bond compliance, filing of disclosure
statements, the passing of background checks, and photographs of
immigration consultants.
Prior Vote :
Senate Committee on Business, Professions and Economic
Development (Ayes 9, Noes 0)
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