BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                            



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                                    THIRD READING


          Bill No:  AB 1159
          Author:   Gonzalez (D), et al.
          Amended:  9/11/13 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

           SENATE JUDICIARY COMM.  :  7-0, 9/10/13 (pursuant to Senate Rule  
            29.10)
          AYES:  Evans, Anderson, Corbett, Jackson, Leno, Monning, Vidak


           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  
                                                                CONTINUED





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          "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;  
          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.

           Senate Floor Amendments  of 9/11/13 make a technical change.

           Senate Floor Amendments  of 9/6/13 insert notice and posting  
          requirements; clarify that civil penalties, as specified, are to  
          be directed by the State Bar to provide free legal services or  
          mitigate unpaid claims of injured immigrant clients; and make  
          other clarifying changes.

           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  







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            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.
          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  







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            $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:

          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," that 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.Establishes, in addition to any other remedy, a civil penalty  
            of up to $1,000 per day for each violation of the provisions  
            specified in #1 above.  Requires the penalties collected be  
            allocated to a specified fund to provide free legal services  
            related to immigration reform act services to clients of  
            limited means or to a fund to mitigate unpaid claims of  
            injured immigrant clients, as directed by the Board of  
            Trustees (Board) of the State Bar.  Requires the Board to  
            annually report any collection and expenditure of these moneys  
            to the Assembly and Senate Judiciary Committees.

          3.Adds a specified body of law to the State Bar Act relating to  
            "Attorneys Providing Immigration Services," which:  

             A.   Defines the following terms:

                (1)     "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  







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                  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.  Requires the State Bar to  
                  announce and post on its Internet Web site when an  
                  immigration reform act is enacted.

                (2)     "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.

             A.   Specifies that these provisions apply to:

                (1)     An attorney who is an active member of the State  
                  Bar who provides immigration reform act services.
                (2)     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 or the United States Citizenship and Immigration  
                  Services, and who is providing immigration reform act  
                  services in an office or business in California.

             A.   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  
               promptly, but no later than 30 days after the receipt of  
               the funds..

             B.   States that if an attorney providing immigration reform  
               act services accepted funds for immigration reform act  
               services prior to the effective date of these provisions,  
               and the services to be performed in connection with payment  
               of those funds were rendered, the attorney shall promptly,  
               but no later than 30 days after the effective date of this  







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               bill, provide the client with a statement of accounting  
               describing the services rendered.  Any funds received  
               before the effective date of this bill, for which  
               immigration reform act services were not rendered prior to  
               the effective date of this bill, will be either refunded to  
               the client or deposited into a client trust account.  An  
               attorney that deposits funds into a client trust account  
               will provide a written notice in English and in the  
               client's native language, informing the client 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, and that he/she may report  
               complaints to specified entities.  The notice must include  
               toll-free numbers and Internet Web sites of those entities.

             C.   Requires an attorney providing immigration reform act  
               services, when a contract for legal services is required in  
               writing pursuant to specified provisions of law, to provide  
               a written notice informing the client that the client may  
               report complaints to specified entities.  Makes these  
               provisions operative when the State Bar posts the form and  
               specified translations of the form on its Internet Web  
               site, but no later than 45 days after the effective date of  
               the bill.

          1.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; the cost of preparing  
            each document specified in the contract; and a provision  
            informing the client that he/she may report complaints to the  
            Executive Office for Immigration Review of the United States  
            Department of Justice.

          2.Specifies that an immigration consultant who literally  
            translates, from English into another language, any words or  
            titles, including, but not limited to, "notary public,"  
            "notary," "licensed," "attorney," or "lawyer," that imply that  
            the person is an attorney, shall constitute the unlicensed  
            practice of law, as specified.  Expressly prohibits the  
            literal translation of "notary public" into Spanish as  
            "notario publico" or "notario."  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.







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          3.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  
            certain requirements relating to the expenditure of funds from  
            the trust account.

          4.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.  Requires the State Bar to  
               announce and post on its Internet Web site when an  
               immigration reform act is enacted.

             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 promptly, but no later than 30 days after the receipt  
            of the funds.  Any funds received before the effective date of  
            the bill, for which immigration reform act services were not  
            rendered prior to the effective date of this bill, 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 provided  
            in connection with payment of those funds were rendered, the  







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            consultant shall promptly, but no later than 30 days after the  
            effective date of this bill, provide the client with a  
            statement of accounting describing the services rendered.  Any  
            funds received before the effective date of the bill, for  
            which immigration reform act services were not rendered prior  
            to the effective date of this bill, 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 be processed until the  
            enactment of an immigration reform act, as specified, and that  
            it is unlawful for an immigration consultant to demand or  
            accept advance payment of any funds for immigration reform act  
            services before enactment of an immigration reform act.   
            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  







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            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.

           Potential minor revenue increases (General Fund) for civil  
            penalty collections to the extent additional civil actions are  
            brought by the Attorney General.

           SUPPORT  :   (Verified  9/9/13) (reflects prior version of bill)

          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  :    (Verified 9/9/13) (reflects prior version of  
          bill)

          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







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          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  
          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.







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          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."


          MW:ej  9/12/13   Senate Floor Analyses 

                           SUPPORT/OPPOSITION:  SEE ABOVE

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