BILL ANALYSIS Ó
-----------------------------------------------------------------
|SENATE RULES COMMITTEE | AB 1159|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 651-1520 Fax: (916) | |
|327-4478 | |
-----------------------------------------------------------------
THIRD READING
Bill No: AB 1159
Author: Gonzalez (D), et al.
Amended: 9/3/13 in Senate
Vote: 27 - Urgency
PRIOR VOTES NOT RELEVANT
SENATE BUSINESS, PROF. & ECON. DEV. COMM .: 9-0, 8/19/13
AYES: Lieu, Block, Corbett, Galgiani, Hernandez, Hill, Padilla,
Wyland, Yee
NO VOTE RECORDED: Emmerson
SENATE JUDICIARY COMMITTEE : 7-0, 8/26/13
AYES: Evans, Anderson, Corbett, Jackson, Leno, Monning, Vidak
SENATE APPROPRIATIONS COMMITTEE : 7-0, 8/30/13
AYES: De León, Walters, Gaines, Hill, Lara, Padilla, Steinberg
SUBJECT : Immigration services
SOURCE : State Bar of California
DIGEST : This bill provides that it is the unlicensed practice
of law for an immigration consultant, or any person who is not
an attorney, to literally translate, from English into another
language, in written documents or advertisements, the term
"notary public," or any other term that implies that the person
is an attorney; requires attorneys who provide immigration
reform act services to use a written contract in English and in
the client's native language which contains specified elements;
CONTINUED
AB 1159
Page
2
prohibits an attorney or an immigration consultant from
demanding or accepting the advance payment of any funds from a
person for immigration reform act services before the enactment
of any immigration reform act; requires immigration consultants
to place client funds into a trust account; and increases the
bond required by an immigration consultant to $100,000.
ANALYSIS :
Existing law:
1.Prohibits the practice of law in California by any person who
is not an active member of the State Bar of California.
Further provides that any person advertising or holding out as
practicing, entitled to, 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, is guilty
of a misdemeanor punishable by up to one year imprisonment or
by a fine of up to $1,000, or by both. A second or subsequent
conviction requires a sentence of not less than 90 days in
jail, except as provided.
2.Regulates a person engaged in the business or acting in the
capacity of an immigration consultant, and provides that a
violation of these provisions is a crime.
3.Defines "immigration consultant" as a person giving non-legal
assistance or advice on an immigration matter, such as
completing forms, translating answers, securing forms, making
referrals, or submitting forms.
4.Requires an immigration consultant to satisfactorily pass a
background check conducted by the Secretary of State (SOS),
and requires the SOS to disqualify an individual from acting
as an immigration consultant who does not meet certain
specified requirements.
5.Requires immigration consultants to provide a client, in the
client's native language, a written contract with certain
contract language requirements and restrictions prescribed by
the Department of Consumer Affairs (DCA) regulations, and
exempts from this requirement employees of a nonprofit,
tax-exempt corporation who provide certain free or low-cost
services.
CONTINUED
AB 1159
Page
3
6.Requires immigration consultants to provide a client with
payment receipts, as well as statements of services and
payments every two months.
7.Requires immigration consultants to visibly display certain
information, such as evidence of compliance with the bonding
requirement, a statement that the immigration consultant is
not an attorney, fee information, and to provide similar
written information to clients prior to providing services.
8.Requires an immigration consultant to clearly identify that
he/she is not an attorney.
9.Prohibits an immigration consultant from literally
translating, with the intent to mislead, from English into
another language, words or titles including, but not limited
to, "notary public," "notary," "licensed," "attorney,"
"lawyer," or any term that might imply that the person is an
attorney in any document, including an advertisement,
stationery, letterhead, business card, or other comparable
written material describing the immigration consultant.
10.Requires all immigration consultants to file a $50,000 surety
bond, related disclosure form, and other specified information
with the SOS, and to file and routinely update additional
business information with the SOS, and allows the SOS to
charge a fee to cover the costs of filing and maintaining the
bond.
11.Makes a violation of the immigration consultant requirements
subject to a civil penalty not to exceed $100,000 for each
violation and a misdemeanor punishable by a fine of $2,000 to
$10,000 per client and/or up to one year imprisonment. Makes
a second or subsequent violation for certain provisions a
felony.
12.Prohibits a notary public (who is not an attorney) from
making the literal translation of the phrase "notary public"
into Spanish "notario publico" or "notario" and provides for
suspension or revocation of the commission of any notary
public who fails to comply with that prohibition.
This bill:
CONTINUED
AB 1159
Page
4
1.Makes it a violation of the laws prohibiting the unauthorized
practice of law for any person who is not an attorney to
literally translate from English into another language, in any
document, including an advertisement, stationery, letterhead,
business card, or other comparable written material, any words
or titles, including, but not limited to, "notary public,"
"notary," "licensed," "attorney," or "lawyer," to imply that
the person is an attorney, and expressly prohibits the literal
translation of the phrase "notary public" into Spanish as
"notario publico" or "notario."
2.Adds a specified body of law to the State Bar Act relating to
"Attorneys Providing Immigration Services."
3.Defines the following terms:
A. "Immigration reform act" means any pending or future act
of Congress that is enacted after the effective date of
this bill but before January 1, 2017, including but not
limited to, the federal act known as the "Border Security,
Economic Opportunity, and Immigration Modernization Act,"
which authorizes an undocumented immigrant, who either
entered the United States without inspection or who did not
depart after expiration of a nonimmigrant visa, to attain a
lawful status under federal law.
B. "Immigration reform act services" means the services
offered in connection with an immigration reform act that
are necessary in the preparation of an application and
other related initial processes in order for an
undocumented immigrant, who either entered the United
States without inspection or who did not depart after
expiration of a nonimmigrant visa, to attain a lawful
status under an immigration reform act.
1.Specifies that these provisions shall apply to:
A. An attorney who is an active member of the State Bar who
provides immigration reform act services.
B. An attorney who is not a member of the State Bar, but
who is authorized by federal law to practice law and to
represent persons before the Board of Immigration Appeals
CONTINUED
AB 1159
Page
5
or the United States Citizenship and Immigration Services,
and who is providing immigration reform act services in an
office or business in California.
1.Prohibits an attorney from demanding or accepting the advance
payment of any funds from a person for immigration reform act
services before the enactment of an immigration reform act,
and provides that any funds received after the effective date
of the bill, but before the enactment of an immigration reform
act, shall be refunded to the client.
2.Provides that if an attorney providing immigration reform act
services accepted funds prior to the effective date of these
provisions, and the services were provided, the attorney shall
provide the client with a statement of accounting describing
the services rendered. Any funds received before the
effective date of the bill, but before the enactment of an
immigration reform act, shall be deposited into a client trust
account. An attorney that deposits funds into a client trust
account shall provide the client a written notice in English
and in the client's native language, that no benefits or
relief are available, and that an application may not be
processed until the enactment of an immigration reform act, as
specified.
3.Requires that the written contract of an immigration
consultant contain additional information, including an
itemization of each service to be performed; an explanation of
the purpose and process of each service; and the cost of
preparing each document specified in the contract.
4.Specifies that an immigration consultant who literally
translates, from English into another language, the words or
titles, including, but not limited to, "notary public,"
"notary," "licensed," "attorney," "lawyer," or any other terms
that imply that the person is an attorney, shall constitute
the unlicensed practice of law, as specified. Establishes, in
addition to any other remedy, a civil penalty of up to $1,000
per day for each violation of this provision, as specified.
5.Requires an immigration consultant, who provides immigration
reform act services to a client, to establish and deposit into
a client trust account any funds received from the client
prior to performing services for that client, and imposes
CONTINUED
AB 1159
Page
6
certain requirements relating to the expenditure of funds from
the trust account.
6.Defines terms relating to immigration consultants who perform
immigration reform act services:
A. "Immigration reform act" means any pending or future act
of Congress that is enacted after the effective date of the
bill but before January 1, 2017, including but not limited
to the federal act known as the "Border Security, Economic
Opportunity, and Immigration Modernization Act" (S. 744,
2013), that authorizes an undocumented immigrant who either
entered the United States without inspection or who did not
depart after expiration of a nonimmigrant visa, to attain a
lawful status under federal law.
B. "Immigration reform act services" means the services of
an immigration consultant, as described, that are provided
in connection with an immigration reform act.
1.Prohibits an immigration consultant from demanding or
accepting the advance payment of any funds from a person for
immigration reform act services before the enactment of an
immigration reform act, as defined, and requires any funds
received after the effective date of the bill, but before the
enactment of an immigration reform act, to be refunded to the
client. Any funds received before the effective date of the
bill, but before the enactment of the immigration reform act
shall be deposited into a client trust account or refunded to
the client.
2.Provides that if an immigration consultant providing
immigration reform act services accepted funds prior to the
effective date of these provisions, and the services were
provided, the consultant shall provide the client with a
statement of accounting describing the services rendered. Any
funds received before the effective date of the bill, but
before the enactment of an immigration reform act shall either
be refunded to the client or deposited into a client trust
account. An immigration consultant who deposits funds into a
client trust account shall comply with all applicable
provisions of this bill and provide the client a written
notice in English and in the client's native language, that no
benefits or relief are available, and that no application may
CONTINUED
AB 1159
Page
7
be processed until the enactment of an immigration reform act,
as specified. Establishes, in addition to any other remedy, a
civil penalty of up to $1,000 per day for each violation of
this provision, as specified.
3.Increases the amount of the required bond from $50,000 to
$100,000 for all immigration consultants, effective July 1,
2014.
Comments
According to the author's office, this bill is a consumer
protection measure that establishes minimum statutory
requirements and regulations through the State Bar for attorneys
and non-lawyer document preparers who offer immigration services
under comprehensive immigration reform. The goal of this bill
is to protect individuals seeking a path to citizenship from
fraud and abuse.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
According to the Senate Appropriations Committee:
Minor costs in Fiscal Year (FY) 2013-14 of less than $20,000
(Business Fees Fund) to the SOS for form and Internet Web site
changes, noticing, and postage. Additional costs in FY
2014-15 of approximately $35,000 (Business Fees Fund) to
accommodate the increased workload associated with bond
processing and cease and desist notices/orders in response to
the surety bond increase for immigration consultants.
Minor, absorbable one-time costs to DCA to revise regulations
related to written contract requirements for immigration
consultants.
One-time costs to the State Bar to create a template contract
form and necessary language translations. All costs to be
offset by existing fee revenue.
Non-reimbursable local costs for enforcement offset to a
degree by fine revenue for violations of various prohibitions
specified in this bill.
CONTINUED
AB 1159
Page
8
Potential minor revenue increases (General Fund) for civil
penalty collections to the extent additional civil actions are
brought by the Attorney General.
SUPPORT : (per Senate Judiciary Committee analysis of 8/26/13
-- unable to reverify at time of writing)
State Bar of California (source)
AFSCME, AFL-CIO
California Catholic Conference
California Labor Federation
Los Angeles County Sheriff, Leroy D. Baca
San Diego Volunteer Lawyer Program, Inc.
UNITE HERE Local 30
Western Center on Law and Poverty
OPPOSITION : (per Senate Judiciary Committee analysis of
8/26/13 -- unable to reverify at time of writing)
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
ARGUMENTS IN SUPPORT : According to the author and the bill's
sponsor, the State Bar of California, this bill is proposed in
anticipation of federal immigration reform legislation that is
currently pending in Congress, and is intended to proactively
CONTINUED
AB 1159
Page
9
head off problems in implementing immigration reform measures in
California.
The San Diego Volunteer Lawyer Program, Inc. (SDVLP) believes
this bill is a reasonable approach to ensure consumer protection
for immigrants who are seeking relief under the impending
federal immigration reform bill, and argues that by putting in
place these safeguards now, the state can protect the more than
2.5 million Californians who seek immigration reform act
services from the potential fraud and abuse that has already
created undue hardships for clients of immigration legal
services. SDVLP states that oftentimes lawyers and consultants
make guarantees to clients that they cannot fulfill, demand fees
for services that they cannot possibly provide at this time, and
even prey upon members of a community whose language barriers or
unfamiliarity with the American legal system leave them
susceptible to this fraud.
ARGUMENTS IN OPPOSITION : The American Immigration Lawyers
Association (AILA) argues that this bill places unusual burdens
on a single group of attorneys which could have the effect of
limiting access to legal services for the state's immigrants.
AILA believes this bill should be made a two-year bill in order
to allow all stakeholders to further discuss and develop precise
protections. AILA argues that there is no demonstrated need for
this bill stating that the State Bar's own reports show that
immigration fraud accounts for a miniscule percentage of draws
on the Client Security Fund, and that instead of being the
problem, immigration lawyers are the ones who expose fraud and
pick up the pieces when things go wrong.
AILA argues that there has not been an explanation why current
statutes and State Bar rules are insufficient to redress any
inappropriate behavior by a California attorney, and that some
issues addressed by this bill are already subject to redress
under existing law and State Bar rules. AILA states, "It is
unprecedented and unwarranted for a state legislature to
interfere in the attorney/client relationship at
this level, and the one-size-fits all micromanagement of that
agreement neither benefits clients nor protects immigrants from
victimization."
CONTINUED
AB 1159
Page
10
MW:ej 9/1/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****
CONTINUED