BILL ANALYSIS                                                                                                                                                                                                    






                                          
                             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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