BILL ANALYSIS Ó
AB 1159
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1159 (Gonzalez)
As Amended September 11, 2013
2/3 vote. Urgency
-----------------------------------------------------------------
|ASSEMBLY: | |(May 9, 2013) |SENATE: |38-0 |(September 12, |
| | | | | |2013) |
-----------------------------------------------------------------
(vote not relevant)
Original Committee Reference: ED.
SUMMARY : Imposes various restrictions and obligations on
persons who would offer services related to comprehensive
immigration reform.
The Senate amendments delete the Assembly version of this bill,
and instead:
1)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 promptly refunded to the
client, as specified.
2)Provide that:
a) 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 promptly
provide the client with a statement of accounting
describing services rendered; and
b) Any funds received before the effective date of this
bill for which immigration reform act services were not
rendered prior to the effective date, shall be either
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 specified
written notice to the client, in English and the client's
native language.
AB 1159
Page 2
3)Provide that when a contract for legal services is required to
be in writing, as specified, an attorney providing immigration
reform act services shall provide a written notice informing
the client where he or she may report complaints.
4)Require that notice to be attached or incorporated into any
written contract for immigration reform act services, and,
require the notice to be signed by both the attorney and
client if it is attached to a written contract. This bill
would require the notice to be in English and in one of the
languages translated by the State Bar, if the contract for
immigration reform act services was negotiated in one of those
languages.
5)Require the State Bar to provide the form of the notice, post
the form and translations of the form on its Internet Web
site, and to translate the form into Spanish, Chinese,
Tagalog, Vietnamese, Korean, Armenian, Persian, Japanese,
Russian, Hindi, Arabic, French, Punjabi, Portuguese,
Mon-Khmer, Hmong, Thai, and Gujarati. This bill would specify
that an attorney who meets specified criteria shall be
responsible for adding and translating the name of, toll-free
number of, and information on the Internet Web site for, the
bar or court in which he or she is admitted to practice law.
6)Provide that failure to comply with the notice and translation
requirement renders the contract voidable at the option of the
client, and the attorney shall, upon the contract being
voided, be entitled to collect a reasonable fee.
7)Make the above notice and translation provision operative when
the State Bar posts on its Internet Web site the required form
and translations, and, require the State Bar to post the form
and translations as soon as practicable but no later than 45
days after the effective date of the bill.
8)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 require the State Bar to announce and post on its
Internet Web site when an immigration reform act has been
enacted.
AB 1159
Page 3
9)Define immigration reform act services as 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, as
specified, to attain lawful status under the immigration
reform act.
10)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.
11)Provide that, in a civil action brought by the State Bar, the
civil penalty collected shall be paid to the State Bar and
allocated to provide free legal services related to
immigration reform act services to clients of limited means or
to a fund for the purposes of mitigating unpaid claims of
injured immigrant clients.
12)Require the Board of Trustees of the State Bar to annually
report any collection and expenditure of funds for the
preceding calendar year to the Assembly and Senate Committees
on Judiciary, as specified.
13)With respect to immigration consultants:
a) Increases the amount of the bond to $100,000, effective
July 1, 2014;
b) Requires each service to be performed to be itemized
with an explanation of the purpose and process of the
service, and make corresponding changes;
c) Revises 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;
d) Requires an immigration consultant who provides
immigration reform act services to establish and deposit
into a client trust account any funds received from a
AB 1159
Page 4
client prior to performing those services;
e) Allows an immigration consultant providing immigration
reform act services for the client to withdraw funds
received from that client: i) after completing one or more
of the itemized services, as specified; or ii) after
completing one or more of the documents listed, as
specified;
f) Prohibits 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;
g) Provides that funds received after the effective date of
this bill but before enactment of an immigration reform act
must be refunded to the client;
h) Provides that for funds received before the effective
date of the bill: i) the consultant must provide the client
with an accounting for services that were rendered; and ii)
any funds received for which services have not yet been
rendered must be refunded or deposited into a client trust
account, as specified;
i) States 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;
and
j) Expressly prohibits the literal translation of the
phrase "notary public" into Spanish as "notario public" or
"notario."
14)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 Immigration
Consultants Act (ICA), this bill provides 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.
AB 1159
Page 5
FISCAL EFFECT : According to the Senate Appropriations
Committee:
1)Minor costs in fiscal year (FY) 2013-14 of less than $20,000
(Special Fund*) to the Secretary of State (SOS) for form and
Web site changes, noticing, and postage. Additional costs in
FY 2014-15 of approximately $35,000 (Special Fund*) to
accommodate the increased workload associated with bond
processing and cease and desist notices and orders in response
to the surety bond increase for immigration consultants.
2)Minor, absorbable one-time costs to the Department of Consumer
Affairs (DCA) to revise regulations related to written
contract requirements for immigration consultants.
3)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.
4)Non-reimbursable local costs for enforcement offset to a
degree by fine revenue for violations of various prohibitions
specified in the bill.
5)Potential minor revenue increases (General Fund) for civil
penalty collections to the extent additional civil actions are
brought by the Attorney General.
*Business Fees Fund
COMMENTS : In support of the bill, the author states:
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
AB 1159
Page 6
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.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0002759