BILL ANALYSIS                                                                                                                                                                                                    Ó



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          Date of Hearing:  April 21, 2015


                           ASSEMBLY COMMITTEE ON JUDICIARY


                                  Mark Stone, Chair


          AB 285  
          (Gallagher) - As Amended March 26, 2015





                              As Proposed to be Amended


          SUBJECT:  LEGAL DOCUMENT ASSISTANTS


          KEY ISSUE:  IN ORDER TO REDUCE OPERATING COSTS ASSOCIATED WITH  
          REGULAR REPLACEMENT OF THEIR PRINTED MATERIALS, SHOULD LEgal  
          document assistants be PERMITTED TO DO THE FOLLOWING: (1) OMIT  
          THEIR REGISTRATION EXPIRATION DATE FROM APPEARING on all PRINTED  
          WORK-RELATED PAPERS AND DOCUMENTS, except a contract for  
          services; and (2) keep the same county-issued registration  
          number, even after THEIR REGISTRATION lapseS or IS NOT RENEWED?


                                      SYNOPSIS


          Legal document assistants (LDAs) provide legal document  
          preparation and self-help services to the public within  
          parameters established under consumer protection legislation  
          established in the early 1990's. Under existing law, LDAs may  
          not provide any self-help service for compensation unless  








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          registered in the county of his or her principal place of  
          business, and any other county in which he or she serves  
          clients.  The types of services that LDAs are authorized to  
          perform include: (1) completing legal documents in a ministerial  
          manner, selected by a self-represented person, by typing or  
          otherwise completing the documents at the person's specific  
          direction; (2) making published legal documents available to a  
          person who is representing himself or herself in a legal matter;  
          and (3) filing and serving legal forms and documents at the  
          specific direction of a person who is representing himself or  
          herself in a legal matter.


          This bill, sponsored by the California Association of Legal  
          Document Assistants (CALDA), seeks modest changes to laws  
          regarding the registration of legal document assistants,  
          particularly disclosure rules that require LDAs to display  
          certain registration information on all of their business  
          materials and documents.  First, the bill repeals the  
          requirement that a registered LDA must display the expiration  
          date of his or her registration on printed solicitation, papers,  
          documents, and other printed materials, with exception of the  
          written contract for services that must be provided to each  
          client.  As proposed to be amended, the bill limits the  
          disclosure exemption for the expiration date to only printed  
          materials and clarifies that LDAs must still disclose their  
          registration expiration date on the written contract for  
          services, as well as on any Internet website maintained by the  
          LDA and documents, correspondence or materials that are in  
          electronic rather than printed form. Second, the bill would  
          allow LDAs to keep the same registration number after periods of  
          non-renewal.  Proponents, including the National Federation of  
          Independent Businesses (NFIB), contend that both changes are  
          needed to reduce unnecessary cost burdens on LDAs, namely, by  
          forcing them to regularly purchase new written materials and  
          discard old materials whenever an expiration date or  
          registration number changes.  Additional author's amendments  
          reduce the scope of the bill in response to Committee concerns  
          that the removed provisions unacceptably reduced consumer  








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          protections in current law.  This bill has no registered  
          opposition and will be referred to the Assembly Local Government  
          Committee upon approval by this Committee.


          SUMMARY:  Makes modest changes to rules governing the use of  
          registration information of legal document assistants (LDA).   
          Specifically, this bill:   


          1)Provides that the expiration date of an LDA's registration  
            need not appear in printed solicitations or advertisements,  
            nor on printed papers or documents prepared or used by the  
            registered LDA, including but not limited to, contracts,  
            letterhead, business cards, correspondence, documents, forms,  
            claims, petitions, checks, receipts, and pleadings.


          2)Provides that the registered LDA's name, business address,  
            telephone number, registration number, expiration date of the  
            registration, and county of registration shall appear on the  
            written contract required to be given to every client prior to  
            providing services, as well as on any Internet website  
            maintained by the registrant and in any solicitation,  
            advertisement, document, or correspondence prepared or used by  
            the registrant in electronic form.


          3)Requires the county clerk, upon renewal of registration, to  
            assign the LDA the same registration number previously issued,  
            including in instances where renewal is sought after a lapse  
            in registration.


          EXISTING LAW:   


          1)Prohibits any LDA, including any LDA employed by a partnership  
            or corporation, from providing any self-help service for  








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            compensation, unless the LDA is registered in the county in  
            which his or her principal place of business is located and in  
            any other county in which he or she performs acts for which  
            registration is required.  (Business & Professions Code  
            6400(f).  All further references are to this code unless  
            otherwise stated.)


          2)Requires a LDA or unlawful detainer assistant (UDA) to  
            register with the county clerk in the county in which his or  
            her principal place of business is located (deemed primary  
            registration), and in any other county in which he or she  
            performs acts for which registration is required (deemed  
            secondary registration). Provides that any registration in a  
            county, other than the county of the person's place of  
            business, shall state the person's principal place of business  
            and provide proof that the registrant has satisfied specified  
            bonding requirements.  (Section 6402.)


          3)Requires an applicant to pay a fee of $175 to the county clerk  
            at the time he or she files an application for initial  
            registration, including a primary or secondary registration,  
            or renewal of registration.  (Section 6404.)


          4)Requires an individual applicant to post a bond of $25,000,  
            and any partnership or corporation applying for registration  
            to post a bond of $25,000 for one to four assistants, $50,000  
            for five to nine assistants, and $100,000 for ten or more  
            assistants.  (Section 6505.)


          5)Provides that a certificate of registration shall be effective  
            for a period of two years, and requires the county clerk to  
            deny registration or renewal of registration if the applicant  
            has been convicted of specified crimes, has been found guilty  
            of the unauthorized practice of law, has been held civilly  
            liable for certain misconduct, or has had his registration  








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            previously revoked, as provided.  (Section 6406.)


          6)Requires the county clerk to maintain a register of LDAs and  
            UDAs, assign a unique number to each LDA or UDA, and issue an  
            identification card to each one. Provides that upon renewal of  
            registration, the same number shall be assigned, provided  
            there is no lapse in the period of registration.  (Section  
            6407.)


          7)Requires the registrant's name, business address, telephone  
            number, registration number, expiration date of the  
            registration, and county of registration to appear in any  
            solicitation or advertisement, and on any papers or documents  
            prepared or used by the registrant, including, but not limited  
            to, contracts, letterhead, business cards, correspondence,  
            documents, forms, claims, petitions, checks, receipts, money  
            orders, and pleadings.  (Section 6408.)


          8)Requires every LDA or UDA who enters into a contract or  
            agreement with a client, prior to providing any services, to  
            provide the client with a written contract that meets certain  
            criteria and contains specified statements and disclaimers.   
            (Section 6410.)


          FISCAL EFFECT:  As currently in print this bill is keyed fiscal.


          COMMENTS:  This bill, sponsored by the California Association of  
          Legal Document Assistants (CALDA), seeks modest changes to laws  
          regarding the registration of legal document assistants,  
          particularly disclosure rules that require LDAs to print certain  
          registration information on all documents and materials they use  
          in the ordinary course of business.  First, the bill repeals the  
          requirement that a registered LDA must display the expiration  
          date of his or her registration on printed solicitation, papers,  








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          documents, and other printed materials, with exception of the  
          written contract for services that must be provided to each  
          client.  As proposed to be amended, the bill preserves the  
          requirement to disclose the registration expiration date with  
          respect to appearing on the LDA's website and other papers and  
          documents used by the LDA in electronic form, where technology  
          allows materials to be easily updated without having to discard  
          or reprint entire new batches of business materials.


          Background on Legal Document Assistants.  Chapter 5.5 of  
          Division 3 of the Business and Professions Code (commencing with  
          Section 6400) ("Chapter 5.5") regulates both legal document  
          assistants (LDA) and unlawful detainer assistants (UDA).   
          Although they are defined separately in statute, the two groups  
          are subject to the same registration and oversight structure  
          provided under Chapter 5.5, and unless otherwise stated, will be  
          discussed interchangeably in this analysis.


          Generally speaking, LDAs provide legal document preparation and  
          self-help services to the public within parameters established  
          under the Chapter.  LDAs may not provide any self-help service  
          for compensation unless registered in the county of his or her  
          principal place of business, and any other county in which he or  
          she serves clients.  The term "self-help services" defines the  
          activities that registered LDAs are specifically authorized to  
          perform, namely:  (1) completing legal documents in a  
          ministerial manner, selected by a self-represented person, by  
          typing or otherwise completing the documents at the person's  
          specific direction; (2) providing general published factual  
          information that has been written or approved by an attorney,  
          pertaining to legal procedures, rights, or obligations to a  
          person who is representing himself or herself in a legal matter,  
          to assist the person in self-representation; (3) making  
          published legal documents available to a person who is  
          representing himself or herself in a legal matter; and (4)  
          filing and serving legal forms and documents at the specific  
          direction of a person who is representing himself or herself in  








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          a legal matter.


          At its core, Chapter 5.5 is a consumer protection statute, first  
          enacted in the early 1990s in response to an epidemic of fraud  
          perpetrated upon vulnerable consumers by non-lawyers who offered  
          legal document preparation and other services for a fee.   
          Because the statute was intended to deter bad actors and stop  
          the spread of acts that were largely presumed to be part of a  
          scheme to commit fraud, Chapter 5.5 contains a number of  
          provisions that by today's standards may seem unnecessarily  
          strict and burdensome, at least to LDAs who now operate in a  
          more legitimate environment.  It is important to note, however,  
          that the Legislature previously evaluated the statute and  
          determined that its "existing enforcement mechanisms are at  
          least minimally sufficient to provide the necessary consumer  
          protection."  (See Professor J. Clark Kelso (McGeorge School of  
          Law), An Assessment of the Legal Document Assistant Pilot  
          Project (May 2002).)  Consequently, efforts to update the  
          statute should be evaluated not only with respect to their  
          impact on registered LDAs, but also in regard to any impact on  
          the balance of consumer protection that has been achieved in  
          this area when the LDA pilot program statute was first enacted  
          over 20 years ago, and later made permanent in 2002 (in what is  
          largely its current form).


          Author's amendment: Publication of registration expiration date.  
           Under existing law, LDAs are required to disclose their  
          registration information, business address, telephone number,  
          and registration expiration date on all business materials, such  
          as sales brochures, forms, ink stamps, and checks.  According to  
          the author and sponsor (proponents), inclusion of the expiration  
          date on all materials used by the LDA (checks, ink stamps,  
          brochures, and other such collateral) is unduly burdensome and  
          cost prohibitive to LDAs because those materials must be thrown  
          out and repurchased at every renewal once they show the expired  
          registration date.  Proponents contend that it is reasonable to  
          continue to mandate that other registration information be  








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          provided on work materials, but it is not necessary to require  
          the registration expiration date on materials, as long as the  
          expiration date appears on the written contract for services  
          that is required to be provided to every client of the LDA. 


          As currently in print, the bill would exempt the registration  
          expiration date from appearing on any LDA work materials, except  
          for the client contract for services, as well as from appearing  
          on the LDA's Internet website.  Because exempting the expiration  
          date from appearing on the LDA's website is not necessary to  
          achieve the stated purpose of relieving cost burdens associated  
          with discarding and reprinting written materials, the author  
          proposes to amend the bill to limit the proposed disclosure  
          exemption for the expiration date to only printed materials.  As  
          proposed to be amended, the bill clarifies that LDAs must still  
          disclose their registration expiration date on the written  
          contract for services, as well as on any Internet website  
          maintained by the LDA, as well as any documents, correspondence  
          or materials that are in electronic, rather than printed, form.   
          The amendment is:


               On page 12, line 6, strike "Internet Web site" and after  
               "any" insert "printed"


               On page 12, line 13, after "Section 6410" insert "as well  
               as on any Internet website maintained by the registrant and  
               in any solicitation, advertisement, document, or  
               correspondence prepared or used by the registrant in  
               electronic form"


          Because much of the correspondence, advertisement, and  
          preparation done by LDAs now occurs through use of the Internet  
          or use of electronic documents, many (but admittedly not all)  
          prospective consumers should still be made aware of the LDA's  
          registration expiration date under these proposed amendments.   








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          Also, the bill ensures that all LDA clients who are offered a  
          contract for services will receive disclosure of the expiration  
          date because the date will be required to be printed on the  
          mandatory written contract.


          Assignment of the same registration number.  Section 6407(a)  
          requires the county clerk, upon renewal of registration, to  
          assign a new registration number to the LDA if the renewal is  
          late or registration has for some reason lapsed, even if the  
          period of non-renewal is entirely voluntary.  According to  
          proponents, requiring the issuance of a new registration number  
          is unduly burdensome and serves only to increase costs by  
          forcing LDAs to reorder stamps, stationary, business cards, and  
          other promotional materials to reflect the new number.  This  
          bill would simply require the county clerk, upon renewal of  
          registration, to assign the same registration number, including  
          in instances where renewal is sought after a lapse in  
          registration.


          Proponents contend this change would bring this provision more  
          closely in line with professions like engineers, lawyers,  
          contractors, real estate agents, accountants and tax preparers,  
          who maintain their original assigned registration numbers even  
          when renewing after a voluntary period of non-practice.  They  
          also contend that assignment of multiple registration numbers to  
          one registered LDA may mislead the public as to how long that  
          registrant has been practicing in the profession.  Committee  
          staff also notes that this change may help protect consumers by  
          making it easier to track the history of individual LDAs should  
          the need arise to investigate any case of alleged misconduct.


          Author's amendments reduce scope of the bill.  As currently in  
          print, the bill seeks to extend the length of the registration  
          term for LDAs from two to four years, and to allow LDAs to  
          provide services statewide without having to register in every  
          county in which they provide services, as is required by current  








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          law.  In order to address concerns expressed by the Committee  
          that the bill simply seeks to reduce existing consumer  
          protections provided by the current registration scheme without  
          proposing any alternative measures to continue to protect  
          consumers, the author has proposed to amend the bill to remove  
          those provisions at this time.  The amendments are:


               Strike page 3, lines 1 to 17; strike pages 4 to 10  
               inclusive; strike page 11, lines 1 to 16.


               On page 11, line 17, strike "SEC. 7" and insert "SEC. 1"


               On page 12, line 1, strike "SEC. 8" and insert "SEC. 2"


               On page 12, line 14, strike "SEC. 9" and insert "SEC. 3"


          Previous related legislation.  AB 1573 (Burton) Ch. 1011, Stats.  
          1993, first established registration, bonding requirements, and  
          further regulation for so-called "unlawful detainer assistants"  
          in order to protect consumers from documented cases of scamming  
          activity involving the unauthorized practice of law in the field  
          of eviction defense.


          SB 1418 (Rosenthal) Ch. 1079, Stats. 1998, subsequently  
          established registration, bonding requirements, and regulation  
          of "legal document assistants."


          AB 2810 (Pacheco) Ch. 386, Stats. 2000, required legal document  
          assistants and unlawful detainer assistants to only post a  
          single multi-county bond of $25,000, instead of posting such a  
          bond in every county in which the LDA or UDA does business.









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          AB 1698 (Committee on Judiciary) Ch. 1018, Stats. 2002, repealed  
          the sunset date for the Legal Document Assistant Pilot Project,  
          and established new regulations for LDAs.


          


          REGISTERED SUPPORT / OPPOSITION:


          Support


          California Association of Legal Document Assistants (sponsor)


          National Federation of Independent Business
          Responsive Law
          Over 40 individual and small business LDAs
          Opposition


          None on file


          Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334



















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