BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 285 (Gallagher)
Version: July 2, 2015
Hearing Date: July 14, 2015
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Professions and vocations: registration
DESCRIPTION
This bill, until January 1, 2021, would repeal all secondary
county registration requirements for unlawful detainer
assistants (UDAs) and legal document assistants (LDAs),
establish a 15-hour continuing legal education requirement for
UDA and LDA registration and renewal, provide additional oral
and written client disclosures, and provide that the venue for
any disputes involving a UDA or LDA would be in the county of
the client's primary residence. This bill would also authorize
a county clerk to assign the same registration number to a UDA,
LDA, process server, and professional copier renewing his or her
registration as long as the registration has not lapsed for
three or more years.
BACKGROUND
Under California law, certain types of legal services can be
performed by legal document assistants (LDAs) or unlawful
detainer assistants (UDAs). Legal document and unlawful
detainer assistants provide, for compensation, self-help
assistance to members of the public who are representing
themselves in legal matters. LDAs and UDAs are prohibited from
providing legal advice or opinion, but they are permitted to
prepare legal documents; provide attorney-authored general
information and published legal documents; and file and serve
documents at the direction of the client.
AB 285 (Gallagher)
Page 2 of ?
LDAs and UDAs are subject to comprehensive registration,
bonding, and business practice requirements to ensure that
clients are protected from unscrupulous legal document
preparers. LDAs and UDAs are required to register in the county
of their primary place of business (primary registration) and in
each additional county in which they provide services (secondary
registration). County clerks are responsible for reviewing the
applications of and registering LDAs and UDAs. Among their
duties, clerks are responsible for ensuring that registrants
receive identification cards and comply with the prerequisites
for registration. Clerks are also responsible for maintaining a
register, assigning a number, and issuing identification cards
to process servers (individuals who serve legal documents) and
professional photocopiers (services that receive or copy
personal medical information, personal identifying information,
or business records, including legal documents).
This bill would repeal the secondary county registration
requirements of LDAs and UDAs and require additional education
and client disclosures. This bill would also authorize county
clerks to assign the same registration number to LDAs, UDAs,
process servers, and professional photocopiers if the
registration has not lapsed for three or more years.
CHANGES TO EXISTING LAW
Existing law prescribes registration, business practices, client
disclosures, and education requirements for legal document
assistants (LDAs) and unlawful detainer assistants (UDAs).
(Bus. & Prof. Code Sec. 6400 et seq.)
Existing law defines a legal document assistant (LDA) as a
person, corporation, partnership, association, or other entity
that employs or contracts with any person, unless otherwise
exempt, who provides or assists in providing, for compensation,
any self-help service to another person who is self-represented
in a legal matter. (Bus. & Prof. Code Sec. 6400(c).) Existing
law prohibits LDAs from providing any kind of advice,
explanation, opinion, or recommendation to a client about
possible legal rights, remedies, defenses, options, selection of
forms, or strategies.
Existing law defines an unlawful detainer assistant (UDA) to
mean an individual who, for compensation, renders assistance or
advice in the prosecution or defense of an unlawful detainer
AB 285 (Gallagher)
Page 3 of ?
claim or action. (Bus. & Prof. Code Sec. 6400 (a).)
Existing law requires UDAs and LDAs to be registered with the
county clerk in the county in which their principal place of
business is located and in any other county in which they
perform acts for which registration is required. (Bus. & Prof.
Code Sec. 6402.)
Existing law requires an LDA or UDA applicant to provide
specified information, including his or her name, age, address,
telephone number, felony and misdemeanor convictions, and
liability in civil actions. (Bus. & Prof. Code Sec. 6403(a),
(c).) Existing law requires the county clerk to retain the
registration application for three years following the
expiration date of the application. (Bus. & Prof. Code Sec.
6403(e).)
Existing law requires LDA or UDA applicants to pay a $175 fee 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. (Bus. & Prof. Code
Sec. 6404.)
Existing law requires the LDA or UDA registration applicant to
include with the registration application a $25,000 bond (for
individuals) or, if the applicant is a partnership or
corporation, a bond for $25,000 for one to four LDAs or UDAs,
$50,000 for five to nine assistants, or $100,000 for 10 or more
assistants. (Bus. & Prof. Code Sec. 6405(a).) Existing law
requires the bond to be made in favor of the State of California
for the benefit of any person who is damaged as a result of a
violation of the LDA or UDA statutes or by the fraud,
dishonesty, or incompetency of an individual, partnership, or
corporation registered as an LDA. (Bus. & Prof. Code Sec.
6405(h).)
Existing law makes a certificate of registration effective for
two years, until the date the bond expires, or until the total
number of LDAs and UDAs employed by a partnership or corporation
exceeds the number allowed for the amount of the bond in effect,
whichever occurs first. (Bus. & Prof. Code Sec. 6406(a).)
Existing law, if the county clerk finds that an applicant has
failed to demonstrate having met the requisite requirements to
obtain registration, requires the county clerk to return the
application and fee to the applicant with a notice to the
applicant indicating the reason for the denial and the method of
AB 285 (Gallagher)
Page 4 of ?
appeal. (Bus. & Prof. Code Sec. 6406(c).)
Existing law requires the county clerk to maintain a register of
LDAs, and a register of UDAs, assign a unique number to each
LDA, or UDA, and issue an identification card to each one.
(Bus. & Prof. Code Sec. 6407(a).) Upon renewal of registration,
the same number is assigned, provided there is no lapse in the
period of registration. (Id.) Existing law prescribes the size
of and information contained on the identification card. (Bus.
& Prof. Code Sec. 6407(b).)
Existing law requires a registered LDA or UDA to include his or
her name, business address, telephone number, registration
number, and county of registration 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. The registrant'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 provided to a client pursuant to
Section 6410, as well as on any Internet Web site maintained by
the registrant, and in any solicitation, advertisement,
document, or correspondence prepared or used by the registrant
in electronic form. (Bus. & Prof. Code Sec. 6408.)
Existing law requires every LDA or UDA who enters into a
contract or agreement with a client to provide services, prior
to providing any services, to provide the client with a written
contract, the contents of which shall be prescribed by
regulations adopted by the Department of Consumer Affairs, and
requires the written contract to include all of the following
provisions:
the services to be performed;
the costs of the services to be performed;
a statement, on the face of the contract in 12-point boldface
type, that the legal document assistant or unlawful detainer
assistant is not an attorney and may not perform the legal
services that an attorney performs;
a statement in 12-point boldface type that the county clerk
has not evaluated or approved the registrant's knowledge or
experience, or the quality of the registrant's services;
a statement in 12-point boldface type that the consumer may
obtain information regarding free or low-cost representation
AB 285 (Gallagher)
Page 5 of ?
through a local bar association or legal aid foundation and
that the consumer may contact local law enforcement, a
district attorney, or a legal aid foundation if the consumer
believes that he or she has been a victim of fraud, the
unauthorized practice of law, or any other injury; and
a statement in 12-point boldface type that a legal document
assistant or unlawful detainer assistant is not permitted to
engage in the practice of law, including providing any kind of
advice, explanation, opinion, or recommendation to a consumer
about possible legal rights, remedies, defenses, options,
selection of forms, or strategies. (Bus. & Prof. Code Sec.
6410(a), (b).)
Existing law requires the contract to be written both in English
and in any other language comprehended by the client and
principally used in any oral sales presentation or negotiation
leading to execution of the contract, and the legal document
assistant or the unlawful detainer assistant is responsible for
translating the contract into the language principally used in
any oral sales presentation or negotiation leading to the
execution of the contract. (Bus. & Prof. Code Sec. 6410(c).)
Existing law specifies that the failure of an LDA or UDA to
provide the required contract information makes the contract or
agreement for services voidable at the option of the client;
upon the voiding of the contract, the LDA or UDA is required to
immediately return in full any fees paid by the client. (Bus. &
Prof. Code Sec. 6410(d).)
Existing law , in addition to any other right to rescind,
provides the client the right to rescind the contract within 24
hours of the signing of the contract, and the client may cancel
the contract by giving the LDA or the UDA any written statement
to the effect that the contract is canceled. If the client
gives notice of cancellation by mail addressed to the LDA or
UDA, with first-class postage prepaid, cancellation is effective
upon the date indicated on the postmark, and, upon the voiding
or rescinding of the contract or agreement for services, the LDA
or UDA is required to immediately return to the client any fees
paid by the client, except fees for services that were actually,
necessarily, and reasonably performed on the client's behalf by
the legal document assistant or unlawful detainer assistant with
the client's knowing and express written consent. (Bus. & Prof.
Code Sec. 6410(e).)
AB 285 (Gallagher)
Page 6 of ?
Existing law makes it unlawful for any legal document assistant
or unlawful detainer assistant, in the first in-person or
telephonic solicitation of a prospective client of legal
document or unlawful detainer assistant services, to enter into
a contract or agreement for services or accept any compensation
unless the legal document assistant or the unlawful detainer
assistant states orally, clearly, affirmatively and expressly
all of the following, before making any other statement, except
statements required by law in telephonic or home solicitations,
and a greeting, or asking the prospective client any questions:
the identity of the person making the solicitation;
the trade name of the person represented by the person making
the solicitation, if any;
the kind of services being offered for sale; and
the statement: "I am not an attorney" and, if the person
offering legal document assistant or unlawful detainer
assistant services is a partnership or a corporation, or uses
a fictitious business name, "[name] is not a law firm. I/we
cannot represent you in court, advise you about your legal
rights or the law, or select legal forms for you." (Bus. &
Prof. Code Sec. 6410.5(a).)
Existing law , if the first contact between an LDA or UDA and a
prospective client is initiated by the prospective client, makes
it unlawful for the LDA or UDA to enter into a contract or
agreement for services or accept any compensation unless the LDA
or UDA states orally, clearly, affirmatively and expressly,
during that first contact, and before offering any contract or
agreement for services to the prospective client, the following:
"I am not an attorney [and, if the person offering legal
document assistant or unlawful detainer assistant services is a
partnership or a corporation, or uses a fictitious business
name, "[name] is not a law firm."] [I/We] cannot (1) represent
you in court, (2) advise you about your legal rights or the law,
or (3) select legal forms for you." (Bus. & Prof. Code Sec.
6410.5(b).) Existing law allows, after making this statement,
and before offering the prospective client a contract or
agreement for services, an LDA or UDA who has made the statement
to ask the prospective client to read the "Notice to Consumer,"
as provided by statute, and after allowing the prospective
client time to read the notice, to ask the prospective client to
sign and date the notice. (Id.)
Existing law prescribes registration and registration renewal
requirements for process servers. (Bus. & Prof. Code Sec.
AB 285 (Gallagher)
Page 7 of ?
22355.)
Existing law defines a process server as any natural person that
makes, for compensation, more than 10 services of process in
California during a calendar year, and any corporation that
derives compensation from service of process within California.
(Bus. & Prof. Code Sec. 22350.)
Existing law prescribes registration and registration renewal
requirements for professional photocopiers. (Bus. & Prof. Code
Sec. 22457.)
Existing law defines a professional photocopier to mean any
person who, for compensation, obtains or reproduces documents
pertaining to personal medical information, personal identifying
information, or business records. (Bus. & Prof. Code Sec.
22450.)
Existing law requires process servers and professional
photocopiers to register with the county clerk of the county in
which they reside or have a principal place of business. (Bus. &
Prof. Code Secs. 22350 et seq., 22450 et seq.)
Existing law requires the county clerk to retain a certificate
of registration of a process server for a period of three years
following the expiration date of the certificate or retain an
application for registration of a professional photocopier for
three years following the expiration date of the application.
(Bus. & Prof. Code Secs. 22351(c), 22452(c).)
This bill would repeal the requirement for an LDA or UDA to also
register in any other county in which he or she performs acts
for which registration is required (secondary registration),
make conforming changes in several code sections, and, require
the LDA or UDA to register in any county in which he or she
maintains a branch office.
This bill , to be eligible to renew registration, would require
the registrant to complete 15 hours of continuing legal
education courses, as specified, during the two-year period
preceding renewal.
This bill would repeal the requirement that the application for
registration indicate whether the registration was primary or
secondary, and, instead, require an application for renewal of
AB 285 (Gallagher)
Page 8 of ?
registration to include a statement by the applicant that he or
she has completed the 15-hour legal education courses prescribed
under this bill.
This bill would require a registered LDA or UDA to provide his
or her name, business address, telephone number, registration,
and county of registration in on any printed papers or documents
prepared or used by the registrant, but no longer require the
expiration date of the registration to be provided in any
solicitation or advertisement, or on any printed papers or
documents. This bill would require the above information to
also appear on the written contract that must be provided to a
client, as well as on any Internet Web site maintained by the
registrant, and in any solicitation, advertisement, document, or
correspondence prepared or used by the registrant in electronic
form.
This bill would require the venue for an action arising out of a
dispute between an LDA or UDA and his or her client to be the
county in which the client has his or her primary residence, and
require a written contract entered into on or after January 1,
2016, between an LDA or UDA and a client to contain a statement
that the venue for an action arising out of a dispute between an
LDA or UDA and his or her client shall be the county in which
the client has his or her primary residence.
This bill would make it unlawful for any LDA or UDA, in the
first contact with a prospective client, to enter into a
contract or agreement for services or accept any compensation
unless the LDA or UDA orally states to the prospective client
specified information, including the county in which the LDA or
UDA is registered and his or her registration number and
expiration date of the registration.
This bill , after the LDA or UDA makes the required oral consumer
notification statements, would make it unlawful for an LDA or
UDA to enter into a contract or agreement for services or accept
any compensation unless the LDA or UDA also provides the client
with a written notice to consumer, and requires the LDA or UDA
to ask the prospective client to sign and date the notice.
This bill , if the first contact between the LDA or UDA and the
client is not in person, would require the written notice to
consumer to be provided to the prospective client at the first
in person meeting or mailed to the prospective client before
AB 285 (Gallagher)
Page 9 of ?
entering into a contract or agreement for services or accepting
any compensation.
This bill would require the LDA's or UDA's notice to consumer
and written contract entered into between an LDA or UDA and a
client to include the contact information of the County Clerk's
office where the LDA or UDA is registered, including the
address, phone number, and Internet Web site, if available.
This bill would make the LDA or UDA responsible for translating
the notice to consumer into the language principally used in any
oral sales presentation or negotiation.
This bill would add to the statutory Notice to Consumer that the
LDA or UDA is registered in the specified county, registration
number, and expiration date and a statement that the prospective
client can confirm the LDA's or UDA's registration by contacting
the office of the county clerk where the LDA or UDA is
registered at the appropriate county clerk's phone number,
address, or Internet Web site to be provided by the LDA or UDA.
This bill would make the above provisions regarding LDAs and
UDAs effective only until January 1, 2021, unless a later
enacted statute is enacted before that date to delete or extend
that sunset.
This bill would authorize the county clerk to assign the same
registration number upon renewal of LDA, UDA, process service,
and professional photocopier registration, provided the
applicant is renewing registration in the same county in which
he or she was previously registered and there is no lapse of
three or more years in the period of registration.
COMMENT
1. Stated need for the bill
The author writes:
AB 285 brings common-sense changes to the registration
requirements of Legal Document Assistants to modernize the
profession and bring it in line with similar businesses and
professions. Legal Document Assistants are key providers of
crucial legal services to underserved populations. It is
important to make these changes to clear up unnecessary and
AB 285 (Gallagher)
Page 10 of ?
onerous requirements, while leaving crucial consumer
protections in place.
2. Revising LDA and UDA disclosures to consumers
Existing law requires LDAs and UDAs to provide his or her
registration number and registration expiration date on 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. This bill would remove the expiration
date provision from any printed papers or documents, but, if the
LDA or UDA maintains an Internet Web site, would require the
expiration date to be included on that Internet Web site and any
document in electronic form. This bill would also require the
expiration date to be provided in the Notice to Consumer
provided to a prospective client, be provided orally or in
writing when soliciting a client, and any written contract with
the client.
The National Federation of Independent Business (NFIB), in
support, states that "[t]he [LDA] profession was created by the
Legislature to provide critical legal document support for those
who cannot afford the high legal fees of other professionals.
Unfortunately the LDA registration process has proven to be
overbearing and challenging for these small business owners, and
is a huge disincentive for people to enter into this important
line of work. Unlike other similar professions like notaries or
paralegals, the law requires LDAs to include the expiration date
of their registration on all legal documents, while requiring
them to re-register every two years whereupon they receive a new
registration number. This means that they must re-purchase new
documents, stamps, etc., every time their registration is
renewed. The inclusion of an expiration date on the legal
documents serves no legitimate purpose in consumer protection.
Current law imposes a burden on one profession that similar
professions do not bear."
The California Association of Legal Document Assistants (CALDA),
sponsor, states that "requiring that all work related materials
have to include the registration expiration date is an undue
burden on LDAs. This requirement is unnecessarily duplicative
for every document, but should continue to be included in the
required Contract for Self Help Services we use in our daily
AB 285 (Gallagher)
Page 11 of ?
work." CALDA further asserts that this bill "will make
registration and the LDA practice more cost and time effective,
which will in turn aid low-income clients who cannot afford the
rising cost of attorney's fees and frequently need LDA
services."
The author points to a study by the Responsive Law Center, which
found that "Californians are increasingly unable to afford legal
help. The average Californian must work 20 hours to pay for
just one hour of an attorney's time" (based on a pre-tax income
of $29,630 and attorney billing rate of $250/hour). The author
argues that LDAs play an important role in providing access to
justice through assisting self-represented parties with document
preparation and other tasks, but, unfortunately, regulatory
burdens discourage many LDAs from expanding and becoming more
accessible. The bill seeks to provide an appropriate balance
between the cost of doing business as an LDA or UDA and client
protection by removing the two-year reprinting requirement
currently undertaken by an LDA or UDA after each registration
renewal, and establishing new written contract, consumer notice,
Internet Web site, and electronic form disclosure requirements,
which would include the expiration date of the registration.
Further, to address concerns raised by the Western Center on Law
and Poverty, this bill was recently amended to clarify the oral
statement, written notice to consumer, and contract provisions,
and to add a sunset of the LDA and UDA provisions specified
under this bill in order to provide additional consumer
protections.
3. Providing venue for client actions against LDAs and UDAs in
lieu of multi-county registration
Existing law requires an LDA or UDA to register in the county of
his or her principal place of business, which is considered the
primary registration. If the LDA or UDA also provides services
to clients in other counties, the LDA or UDA is also required to
register in those counties, which is considered the secondary
registration(s).
Notably, the current registration requirement was written before
the advent of the Internet, which is used by many professionals
and businesses to solicit services and provide information to
prospective clients. The author argues that by current law,
anyone with an Internet Web site should presumably register in
all counties, or refuse business in counties in which they are
AB 285 (Gallagher)
Page 12 of ?
not registered. Yet, the author points out, similar
professions, including process servers and notaries, are not
subject to such a requirement. Further, CALDA argues that the
primary and secondary registration requirements are an
unnecessary burden on LDAs who wish to do business at the state
level, but are restricted due to the time consuming process of
registering in every single county.
This bill seeks to update existing law to provide for the
solicitation of services of UDAs and LDAs by allowing an LDA or
UDA to register only in the county in which her principal place
of business is located, and in which he or she maintains a
branch office. In order to ensure that clients are able to
effectively pursue claims against an LDA or UDA, if needed, this
bill would establish that the venue for any dispute between a
client and an LDA or UDA must be in the county where the client
primarily resides. In this way, this bill seeks to balance the
interconnectivity of professionals and clients, while
maintaining appropriate client protection and convenience
through judicial review in the county in which the client
resides, rather than the county in which the LDA or UDA
principally performs his or her business. This bill maintains
the requirement to disclose the county of registration and
registration number, and would also require the LDA or UDA to
provide written notice of the venue requirement in the written
contract with the client to ensure the client is aware of his or
her rights.
4. Registration number continuity
Rather than reassigning a new registration number to an LDA or
UDA at each registration renewal, this bill would authorize the
county clerk to assign the same registration number to the LDA
or UDA, provided the registration has not lapsed for three or
more years.
The author argues that this number reassignment requirement is
problematic for several reasons: "First, requiring a new
registration number serves only to increase costs to LDAs by
forcing providers to reorder stamps, stationary, business cards,
and other promotional materials. Additionally, multiple
registration numbers make it more difficult to track the history
of nefarious individuals and is deceptive to the public as to
how long the registrant has been practicing." The author
contends that allowing LDAs and UDAs to keep their original
AB 285 (Gallagher)
Page 13 of ?
registration numbers after periods of non-renewal, provided
there is not a lapse of three or more years, would bring this
requirement more closely in line with similar professions
(lawyers, contractors, engineers, medical professionals, private
investigators, CPAs, and tax preparers) who maintain their
original registration numbers, even after voluntary periods of
non-practice.
Further, county clerks do not want to maintain applications for
an undefined amount of time to comply with this provision, so
this bill would limit the lapse provision to three years, which
is consistent with the current county clerk record retention
requirement. To maintain consistency, this bill also allows
county clerks to assign the same registration number to process
servers and professional photocopiers if there is no lapse in
registration for three or more years.
5. Increased education requirements
In order for an LDA or UDA to renew his or her registration,
this bill would require an LDA or UDA to complete 15 hours of
continuing legal education (CLE) courses during the two-year
period preceding renewal. This bill would also require the LDA
or UDA to provide a statement in the renewal application that he
or she has completed the required courses.
In support of this provision, the author argues that legal
documents are constantly being updated, and with the vast
growing of self-represented litigants needing assistance in
representing themselves, it is essential for the LDA or UDA to
constantly update his or her skills and knowledge base in the
areas in which he or she provides assistance to clients. The
author asserts that one way this can be done is through CLE.
The author contends that mandatory CLE will protect the consumer
by ensuring the quality of the legal professional's work.
Furthermore, a well-trained LDA and UDA workforce will be
well-equipped to deliver access to justice for Californians who
cannot afford the cost of traditional legal services. Notably,
CLE requirements established under this bill are nearly double
the required 8 hours necessary for paralegals.
Support : A Legal Bridge; A People's Choice; Affordable Wills &
Trusts; ASAP Legal, Inc.; California Document Preparers;
Judicial Self-Help Center; Quality Document Preparation Center;
AB 285 (Gallagher)
Page 14 of ?
National Federation of Independent Business; Responsive Law
Center; Siskiyou Legal Document Services; 33 Individuals
Opposition : None Known
HISTORY
Source : California Association of Legal Document Assistants
Related Pending Legislation : None Known
Prior Legislation :
AB 620 (Perez, Chapter 458, Statutes of 2009) provided county
clerks with flexibility to issue identification cards that take
advantage of new security features, and clarified rules
pertaining to identification cards for corporations and
partnerships of legal document assistants, unlawful detainer
assistants, process servers, and professional photocopiers. It
also required that applications for professional photocopiers be
signed under penalty of perjury, as is already required for
related professions.
AB 935 (Committee on Business & Professions, Chapter 402,
Statutes of 2007), among other things, established a three-year
retention period for applications and certificates of
registration of process servers, professional copiers, unlawful
detainer assistants, and legal document assistants filed with
the county clerk.
AB 1698 (Committee on Judiciary, Chapter 1018, Statutes of 2002)
repealed the legal document assistant pilot program regulations
and replaced it with a permanent and more comprehensive set of
regulations.
SB 1418 (Rosenthal, Chapter 1079, Statutes of 1998) established
a four-year pilot project regulating the business and
registration of legal document assistants, with a sunset date of
January 1, 2003.
Prior Vote :
Assembly Floor (Ayes 76, Noes 0)
Assembly Appropriations Committee (Ayes 15, Noes 0)
Assembly Local Government Committee (Ayes 9, Noes 0)
AB 285 (Gallagher)
Page 15 of ?
Assembly Judiciary Committee (Ayes 10, Noes 0)
**************