BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015-2016 Regular Session AB 2878 (Committee on Judiciary) Version: June 2, 2016 Hearing Date: June 28, 2016 Fiscal: No Urgency: No ME SUBJECT Attorneys: State Bar: board of trustees DESCRIPTION This bill would authorize the State Bar of California (State Bar) to collect annual membership dues for 2017 and would, among other things: codify a protocol for handling unlawful practice of law complaints; provide that access to records of State Bar Court are subject to the rules and laws applicable to the judiciary instead of the California Public Records Act or Bagley-Keene Open Meeting Act; require various additional audits of the State Bar by the State Auditor; require the Board of Trustees (Board) to transition from a 19 member Board to a 13 member board and comprised of a majority of public members; provide that no motion of the Board can be approved unless a majority of the public members approve the motion; create a Commission of nine appointed members to evaluate issues of State Bar governance and report findings, as specified; require the Chief Justice to appoint a temporary State Bar enforcement program monitor to evaluate the disciplinary system, make recommendations, and report findings, as specified; prohibit the State Bar from creating foundations or nonprofits, as specified; and require the State Bar to conduct an analysis of the Client Security Fund, as specified. BACKGROUND AB 2878 (Committee on Judiciary) PageB of? The State Bar of California is a public corporation. Attorneys who wish to practice law in California generally must be admitted and licensed in this state and must be a member of the State Bar. (Cal. Const., art. VI, Sec. 9.) The State Auditor and media have reported extensively in the last year regarding the State Bar's lack of transparency and problems with the discipline system, including the mishandling of over 300 complaints alleging the unauthorized practice of law. The power to regulate the practice of law, including the power to admit and to discipline attorneys, is among the inherent powers of the Supreme Court. The State Bar functions as the administrative arm of the Supreme Court for the purpose of assisting in attorney admissions and discipline, with the Court retaining its inherent judicial authority to disbar or suspend attorneys. The State Bar of California is the largest state bar in the country. As of March 2016, the State Bar had 186,152 active members and 56,929 inactive members, which represents a slight annual increase in both active members and inactive members. Total State Bar membership is listed at 257,788, which includes 2,162 judge members and 12,544 members who are "Not Eligible to Practice Law." The State Bar's programs are financed mostly by annual membership dues paid by attorneys as well as other fees paid by applicants seeking to practice law. The Legislature has required the Board to establish and administer a Client Security Fund (CSF) to relieve or mitigate pecuniary losses caused by dishonest conduct of active attorneys. Among the criticisms of the State Bar in a recent State Auditor report was that the State Bar failed to be transparent with the Legislature and that it now takes 18 to 36 months for a victim to be paid from the CSF. If the Bar dues bill fails to pass or be signed by the Governor, the Supreme Court will be able to exercise its inherent constitutional power over regulation of the legal profession and may order a special regulator assessment to fund the State Bar's discipline-related functions. This bill would authorize the State Bar to collect the annual membership dues for 2017 and make various substantive changes to the State Bar Act designed to increase transparency, protect victims of unscrupulous non-attorneys, remove politics from the Board, reform the discipline system, and make various other changes in response to the findings in the State Auditor's audit of the State Bar and various media reports. AB 2878 (Committee on Judiciary) PageC of? CHANGES TO EXISTING LAW 1.Existing law establishes that protection of the public shall be the highest priority for the State Bar of California and the Board of Trustees in exercising their licensing, regulatory, and disciplinary functions. Whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (Bus. & Prof. Code Sec. 6001.1.) Existing law requires all attorneys who practice law in California to be members of the State Bar and establishes the State Bar for the purpose of regulating the legal profession. Pursuant to the State Bar Act, the annual mandatory membership fee set by the State Bar's Board of Trustees to pay for discipline and other functions must be ratified by the Legislature. (Bus. & Prof. Code Sec. 6000 et seq.) Existing law authorizes the State Bar to collect $315 in annual membership fees from active members for a total annual dues bill of $390 for the year 2015. (Bus. & Prof. Code Sec. 6140.) The other $75 is pursuant to statutory authorization to assess annually the following fees: $40 for the Client Security Fund (Bus. & Prof. Code Sec. 6140.55); $25 for disciplinary activities (Bus. & Prof. Code Sec. 6140.6); and $10 to fund the Lawyer Assistance Program (Bus. & Prof. Code Sec. 6140.9). Existing law authorizes the State Bar to collect $75 in annual membership fees from inactive members for a total annual dues bill of $115 for the year 2015. (Bus. & Prof. Code Sec. 6141.) The other $40 is pursuant to statutory authorization to assess annually the following fees: $10 for the Client Security Fund (Bus. & Prof. Code Sec. 6140.55); $25 for disciplinary activities (Bus. & Prof. Code Sec. 6140.6); $5 to fund the Lawyer Assistance Program (Bus. & Prof. Code Sec. 6140.9.) Existing law authorizes the State Bar to increase the annual membership fees by an additional $40, to be allocated only for purposes of providing voluntary support for nonprofit organizations that provide free legal services to persons of limited means. Members have the option of deducting the $40 from the annual membership fee if they elect not to have the AB 2878 (Committee on Judiciary) PageD of? amount allocated for the purposes of legal services. (Bus. & Prof. Code Secs. 6033, 6140.03.) This bill , until January 1, 2018, would require the board to charge an annual membership fee for 2017 of $390 for active members. 2.Existing law subjects the State Bar to the California Public Records Act (CPRA) and provides that all public records and writings of the State Bar are subject to the CPRA with exceptions, as specified. Identifying information submitted by applicants to the State Bar for admission to practice law and State Bar admissions records, as specified, are confidential and may not be disclosed pursuant to any law, including the CPRA. (Bus. & Prof. Code Secs. 6001(g), 6026.11, 6060.25, 6086.1(b), 6168, 6200(h), 6232(d), 6234.) Existing law subjects the State Bar to the Bagley-Keene Open Meeting Act, except that the Act shall not apply to the Judicial Nominees Evaluation Commission or the Committee of Bar Examiners. (Bus. & Prof. Code Secs. 6001(g), 6026.5, 6026.7; Gov. Code Sec. 11121.) This bill would provide that access to records of the State Bar Court is subject to the rules and laws applicable to the judiciary instead of the CPRA and would exempt the State Bar Court from the Bagley-Keene Open Meeting Act. 3.Existing law provides that the Board shall engage the services of an independent national or regional public accounting firm with at least five years of experience in governmental auditing for an audit of its financial statement for each fiscal year. The financial statement must be promptly certified and a copy of the audit and financial statement must be submitted, as specified, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary. Existing law requires that the audit examine both: the receipts and expenditures of the State Bar and the State Bar sections to ensure that the receipts of the sections are being applied, and their expenditures are being made, in compliance with specified law, and that the receipts of the sections are applied only to the work of the sections; and the receipts and expenditures of the State Bar to ensure AB 2878 (Committee on Judiciary) PageE of? that the funds collected on behalf of the Conference of Delegates of the California Bar Associations are conveyed to that entity, as specified. (Bus. & Prof. Code Sec. 6145(a).) Existing law , in relevant part, requires that every two years, the Board shall contract with the California State Auditor's Office to conduct a performance audit of the State Bar's operations for the respective fiscal year. A copy of the performance audit must be submitted as specified, to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary. For these purposes, the California State Auditor's Office may contract with a third party to conduct the performance audit. This, however, is not intended to reduce the number of audits the California State Auditor's office may otherwise be able to conduct. (Bus. & Prof. Code Sec. 6145(b).) This bill would require the board to contract with the California State Auditor's Office for an audit of its revenues, expenditures, reserves, and its financial statements for each fiscal year through 2020. This bill would require the California State Auditor, for the performance audit due in January 2017, to review all of the State Bar's expenses, including, but not limited to, executive salaries and benefits, outside contracts and real estate holdings, to determine the appropriate and necessary expenses of the State Bar and the appropriate member dues level. 1.Existing law establishes that the State Bar is governed by a 19-member Board of Trustees consisting of 6 board members who are not attorneys (public members) and 13 members who are attorneys. Six of the 13 attorney board members are elected by other licensed attorneys to represent districts throughout the state. Five attorneys are appointed by the Supreme Court. One attorney is appointed by the Senate Committee on Rules. One attorney is appointed by the Speaker of the Assembly. Four of the six public members are appointed by the Governor. And, the Senate Rules Committee and Assembly Speaker appoint one public member each. (Bus. & Prof. Code Secs. 6011-6019.) This bill would require the Board to transition from a 19 member board to a 13 member board, as specified. AB 2878 (Committee on Judiciary) PageF of? This bill would remove from the Board attorney members elected from State Bar Districts and would make conforming changes. This bill would require that a minimum of seven members of the Board be public members appointed as follows: four by the Governor, two by the Assembly, one by the Senate Rules Committee, and none by the Supreme Court. This bill would provide that no motion of the Board can be approved unless a majority of the public members approve the motion. This bill would require each member of the Board appointed after December 31, 2016, to have demonstrated educational or experience expertise, or both, in one of five specified areas, including public finance. 2.Existing law provides that the State Bar officers are a president, vice president, secretary, and treasurer, elected by the Board. (Bus. & Prof. Code Secs. 6020, 6021.) This bill would require the Supreme Court to instead select from its appointed members a president and vice president of the State Bar. This bill would create a Commission of nine appointed members and require the Commission to evaluate all issues of governance of the State Bar, including, but not limited to, a full review of other states with attorney regulatory structures that are different than the State Bar, in order to recommend the best governance structure for the State Bar and to ensure that protection of the public is the highest priority of the State Bar in its regulatory duties. This bill would require the Commission to provide a report to the Governor, the Chief Justice of the California Supreme Court, and the Senate and Assembly Committees on Judiciary by April 30, 2017. This bill would require the Chief Justice to appoint a State Bar enforcement program monitor prior to March 31, 2017, and would require the program enforcement monitor to evaluate the disciplinary system and procedures of the State Bar, as specified. AB 2878 (Committee on Judiciary) PageG of? This bill would require the program enforcement monitor to submit an initial report no later than October 1, 2019, to issue a final report before March 31, 2020. This provision would sunset on January 1, 2020. 3.Existing law requires the State Bar to annually report on the performance and condition of its discipline system, including the backlog of discipline cases that are six months old and case processing times, as provided. (Bus. & Prof. Code Sec. 6086.15.) Existing law creates the Governance in the Public Interest Task Force, effective February 1, 2013, and requires that the task force report to the Supreme Court, the Governor and the Assembly and Senate Judiciary Committees on Judiciary by May 15, 2014, and every three years thereafter, its recommendations for enhancing public protection and ensuring that public protection is the State Bar's highest priority. (The task force has yet to submit its first report.) (Bus. & Prof. Code Sec. 6001.2.) Existing law permits the State Bar, for the purpose of carrying into effect and promoting its objectives, to sell, lease, exchange, convey, transfer, assign, encumber, pledge, or dispose of any of its real or personal property or any interest therein, including without limitation all or any portion of its income or revenues from membership fees paid or payable by members. (Bus. & Prof. Code Sec. 6001.) Existing law provides that whenever the Board secures an obligation of the State Bar on all or any portion of the fees from membership dues the Legislature may not, until the obligation is repaid in full, reduce membership dues below the maximum amount in effect when the obligation was created and provides that this constitutes a covenant to the holder of the obligation. (Bus. & Prof. Code Sec. 6008.5.) This bill would delete the provision in law that prohibits the Legislature from reducing membership dues if the Board secures an obligation of the State Bar on membership dues. 4.Existing law authorizes the State Bar to raise additional revenue by any lawful means, including, but not limited to, AB 2878 (Committee on Judiciary) PageH of? the creation of foundations or not-for-profit corporations. (Bus. & Prof. Code Sec. 6001.) This bill would prohibit the State Bar from creating any foundation or nonprofit corporations, as specified. 5.Existing law requires the board to establish and administer a Client Security Fund to relieve or mitigate pecuniary losses caused by dishonest conduct of active members of the State Bar, as specified. (Bus. & Prof. Code Sec. 6140.5.) This bill would require the State Bar to conduct a thorough analysis of the Client Security Fund and to submit a report to the Legislature on its analysis of that fund by March 15, 2017, as specified. 6.Existing law prohibits a person from practicing law in California unless the person is an active member of the State Bar. (Bus. & Prof. Code Sec. 6125.) Existing law provides for the fine and imprisonment of persons who engage in the unauthorized practice of law, as specified. (Bus. & Prof. Code Sec. 6126(a), (b).) Existing law , in relevant part, provides that the following acts or omissions in respect to the practice of law are contempts of the authority of the courts: assuming to be an officer or attorney of a court and acting as such, without authority; and advertising or holding oneself out as practicing or entitled to practice law or otherwise practicing law in any court, without being an active member of the State Bar. (Bus. & Prof. Code Sec. 6127.) Existing law provides that in addition to any criminal penalties or contempt proceedings, above, the courts of this state shall have specified jurisdiction when a person advertises or holds himself or herself out as practicing or entitled to practice, or otherwise practices law, without being an active member of the State Bar or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so (hereinafter referred to as the "unauthorized practice of law"). The State Bar, or superior court on its own motion, may make application, as AB 2878 (Committee on Judiciary) PageI of? specified, for assumption by the court of jurisdiction over the practice to the extent provided in this section. In any proceeding under this section, the State Bar is permitted to intervene and assume primary responsibility for conducting the action. (Bus. & Prof. Code Sec. 6126.3(a)-(c).) Existing law authorizes the court, if it finds that the facts set forth regarding the unauthorized practice of law have occurred, and that the interests of a client or an interested person or entity will be prejudiced if the proceeding provided herein is not maintained, to make an order assuming jurisdiction over the person's practice, as specified. If the person to whom the order to show cause is directed does not appear, existing law authorizes the court to make its order upon the verified application or upon such proof it may require. Thereupon, the court must appoint one or more active members of the State Bar to act under its direction to mail a notice of cessation of practice, as specified, and may appoint those appointed attorneys to do one or more of the following, among other things: examine the files and records of the practice and obtain information as to any pending matters that may require attention; notify persons or entities who appear to be clients in connection to the event or events stated in relation to the unauthorized practice of law, and inform them that it may be in their best interest to obtain other legal counsel; with the consent of the client, file notices, motions, and pleadings on behalf of the client where jurisdictional time limits are involved and other legal counsel has not yet been obtained; and do any other acts that the court may direct to carry out for the purposes of this section. (Bus. & Prof. Code Sec. 6126.3(e).) Existing law requires that the court provide a copy of any order issued pursuant to this section on the unauthorized practice of law to the Office of the Trial Counsel of the State Bar. (Bus. & Prof. Code Sec. 6126.3(e).) Existing law provides that upon a finding by the court that it AB 2878 (Committee on Judiciary) PageJ of? is more likely than not that the application will be granted and that delay in making orders described above will result in substantial injury to clients or to others, the court, without notice or upon notice as it shall prescribe, may make interim orders containing any provisions that the court deems appropriate under the circumstances. Such an interim order shall be served, as specified. (Bus. & Prof. Code Sec. 6126.3(j).) Existing law provides that an order pursuant to this section on the unauthorized practice of law is not appealable and shall not be stayed by petition for a writ, except as ordered by the superior or appellate court. (Bus. & Prof. Code Sec. 6126.3(l).) Existing law provides that a member of the State Bar appointed pursuant to this section on the unauthorized practice of law shall serve without compensation, except as specified. (Bus. & Prof. Code Sec. 6126.3(m).) This bill sets forth specific requirements for the handling of unlawful practice of law complaints, including: specific timeframes for processing those complaints; specified, acceptable resolutions for those complaints; and requiring that those complaints be forwarded to law enforcement. COMMENT 1.Stated need for the bill According to the author: This bill continues the Legislature's important oversight of the State Bar through the annual dues authorization bill, which is part of our general oversight role over agencies in the executive and judicial branches of government. As the Supreme Court itself acknowledged in In re Garcia (2014) 58 Cal.4th 440, the Legislature may establish reasonable rules regulating the Bar, despite the fact that the Supreme Court has ultimate responsibility for admissions and discipline. This bill seeks to exercise the Legislature's oversight role over the State Bar after yet another year of extensive and publically reported turmoil AB 2878 (Committee on Judiciary) PageK of? involving the Bar, some of which has only come to light because of new open government laws that we approved last year and which took effect just months ago. The State Bar was created to license and regulate attorneys, with the protection of the public as its highest priority. [ . . . ] Unfortunately, in just this last year alone, far too many instances have come to light that illustrate how far the Bar has strayed from its paramount mission to protect the public. Hundreds of complaints from the public about the unauthorized practice of law were thrown into a drawer and forgotten for months and even years; an audit of the Bar's discipline system showed that the Bar imposed inappropriately light sanctions on attorneys in an effort to clear its backlog of such cases; the Bar's discipline system has focused on minor abuses that do not threaten the public without properly prioritizing more serious discipline cases; the Bar refinanced a $25 million loan on its property in Los Angeles and took out a new $10 million loan on its property in San Francisco by pledging future bar dues as collateral and tied the hands of the Legislature in the process, all without notice to the Legislature; [ . . . ] it was revealed that the Executive Director (and about a dozen member of her executive team) earn a salary far higher than Governor Brown; the Bar recently hired a public relations professional who makes more money than the White House Press Secretary; the Bar's executive staff receives far greater benefits than the rest of the staff; the Bar unlawfully transferred money between its funds; the Bar held at least one meeting in violation of the Bagley-Keene Open Meetings Law; and the Bar is involved in ongoing litigation with five former Bar employees. And the list of wrong doing goes on and on. Too often today, the Bar behaves more like a law firm than a regulator and this has resulted in attorney discipline and public protection receiving short shrift. This bill takes critical steps to make the Bar, once and for all, an effective regulator of attorneys and a protector of the public[.] 2.The Supreme Court AB 2878 (Committee on Judiciary) PageL of? The Supreme Court is not the State Bar Board of Trustees (Board). However, in the frustration surrounding the Board, its former Chief Trial Council, and Executive team, the Board and the Supreme Court are being conflated by some critics. This Supreme Court is arguably the most diverse state Supreme Court in the nation and reflects the new California, in terms of racial, gender, and age diversity. While change is needed with the Board, arguably, this newer Court should be given a reasonable opportunity to address issues within its own branch of government. The Supreme Court is entrusted as the final adjudicator of State laws. While actions of the State Bar, including by the Board, the former Chief Trial Counsel, and Executive team have generated dozens of critical media reports as well as criticism by the State Auditor, this Committee is not aware of any criticism of the State Bar Court, the Supreme Court, or the Chief Justice regarding their respective roles in licensing and disciplining attorneys. 3.The State Bar functions as the administrative arm of the Supreme Court for the purpose of assisting in attorney admissions and discipline, with the Court retaining its inherent judicial authority to disbar or suspend attorneys As a constitutional matter, the judicial power of California is vested in the Supreme Court, Courts of Appeal, and superior courts. (Cal. Const., art. VI, Sec. 1.) The power to regulate the practice of law, including the power to admit and to discipline attorneys, is among the inherent powers of the Supreme Court. (In re Attorney Discipline System (1998) 19 Cal.4th 582, 592; Obrien v. Jones (2000) 23 Cal.4th 40, 48.) In addressing this inherent authority, the Supreme Court has explained: "'The important difference between regulation of the legal profession and regulation of other professions is this: Admission to the bar is a judicial function, and members of the bar are officers of the court, subject to discipline by the court. Hence, under the constitutional doctrine of separation of powers, the court has inherent and primary regulatory power.'" (In re Attorney Discipline System, supra, 19 Cal.4th at 593.) Although originally a creature of statute, the State Bar of California is now "a constitutional entity within the judicial article of the California Constitution." (Obrien, supra, 23 Cal.4th at 48; see Cal. Const., art. VI, Sec. 9; Bus. & Prof. AB 2878 (Committee on Judiciary) PageM of? Code, Sec. 6001.) The State Bar functions as the administrative arm of the Supreme Court for the purpose of assisting in attorney admissions and discipline, with the court retaining its inherent judicial authority to disbar or suspend attorneys. (In re Attorney Discipline System, supra, 19 Cal.4th at 599-600; see Keller v. State Bar of California (1990) 496 U.S. 1, 11.) The State Bar's regulatory assistance is an integral part of the judicial function. (Obrien, supra, 23 Cal.4th at 48.) Emphasizing the sui generis nature of the State Bar as its administrative arm, the Supreme Court has made clear that "express legislative recognition of reserved judicial power over admission and discipline is critical to the constitutionality of the State Bar Act." (In re Attorney Discipline System, supra, 19 Cal.4th at 600, citing Bus. & Prof. Code Sec. 6087.) In addition, the Legislature's exercise, under the police power, of a reasonable degree of regulation and control over the profession and practice of law in California, is well established. (Obrien, supra, 23 Cal.4th at 48.) The Legislature also exercises regulatory authority pursuant to the State Bar Act and has authority to set the amount of membership fees necessary to fund the disciplinary system. The Legislature has enacted statutes making protection of the public the highest priority of the State Bar (Bus. & Prof. Code Sec. 6001.1) and empowering the Bar to promote improvement of the administration of justice (Bus. & Prof. Code Sec. 6031(a).) And, while the Board has statutory authority to formulate rule proposals, they only take effect if the State Supreme Court approves them.<1> 4.This bill would marginalize a co-equal branch of government even though the State Bar functions as the administrative arm of the Supreme Court This bill would provide that no motion of the Board can be approved unless a majority of the public members approve the motion. While these provisions are seemingly intended to increase transparency and fairly distribute authority, as drafted this bill would disproportionately favor certain branches of government over others. Specifically, pursuant to this bill, the Supreme Court continues to appoint no public --------------------------- <1> The Rules of Professional Conduct are the professional standards to which California attorneys must adhere. Violation of the rules may subject an attorney to discipline. AB 2878 (Committee on Judiciary) PageN of? members, the Assembly Speaker appoints two, the Governor continues to appoint four, and the Senate Rules Committee continues to appoint one. Accordingly, the Governor's appointees could control every motion, whereas the Supreme Court would have no power on the Board, and the Assembly would have double the power of the Senate. The following amendment is suggested to remove this inequitable consequence, by striking the requirement that a majority of the public members approve every motion. Suggested Amendment : On page 13, strike out lines 19 and 20. 5.The Chief Justice requests the authority to appoint a Special Master to review issues of governance of the State Bar instead of the creation of a Commission As discussed in Comment 3, above, the power to regulate the practice of law, including the power to admit and to discipline attorneys, is among the inherent powers of the Supreme Court. This bill would provide for the creation of the California State Bar Governance Commission (Commission) to study the best governance structure for the State Bar to fulfill its core function of public protection. Specifically, this Commission would be comprised of nine volunteer Commission members. The Commission members would be appointed by the same entities that currently appoint the Board Members of the State Bar-i.e. the Governor, Chief Justice, Speaker of the Assembly, and Senate Committee on Rules. The Commission would be tasked with "evaluating all issues of governance of the State Bar, including, but not limited to, a full review of other states with attorney regulatory structures that are different than the State Bar and a possible separation of the State Bar's regulatory and trade association functions [. . .]." The Chief Justice of the California Supreme Court, as the leader of the Court, requests that instead of creating this new commission, she be given the statutory authority to appoint a Special Master. Under her proposal, the Supreme Court would assess whether changes to the governing board or overall structure of the State Bar would better support regulation of the legal profession, protection of the public, AB 2878 (Committee on Judiciary) PageO of? and effective administration of justice. To aid in its assessment, the Supreme Court would be statutorily required to appoint a Special Master on or before March 1, 2017. The Special Master would be tasked with reviewing issues of governance of the State Bar, including, but not limited to, a full review of other states with attorney regulatory structures that are similar to or different than the State Bar, possible changes to the composition and operation of the Board, and a possible restructuring of the regulatory and non-regulatory functions of the State Bar. To aid the Special Master in fulfilling his or her duties, the Supreme Court would be required to provide a public list of questions pertaining to governance, regulatory, and other areas perceived as aiding in or interfering with regulation of the legal profession, protection of the public, or the effective administration of justice. The Supreme Court would also be required to consult with the Administration, the Assembly Committee on Judiciary, and the Senate Committee on Judiciary, all of which would be invited to contribute questions to this list. A Special Master, sometimes called a referee, typically is a lawyer or retired judge who is appointed by a court to hear a case or consider matters involving difficult or specialized issues. The appointing court may specify or limit the powers of the Special Master and limit the issues considered. Depending on the court's order, the Special Master will take evidence and file a report that may contain findings of fact and conclusions of law. Once a Special Master's report is filed, the court will ordinarily accept findings of fact unless they are clearly erroneous, but the court may always determine questions of law de novo. In California, Special Masters have been appointed in a variety of cases. In 1998 when the State Bar fee bill was vetoed, the Supreme Court appointed a Special Master to supervise and oversee the collection, disbursement, and allocation of the collected court-imposed regulatory fees on active members of the Bar. Given that the Supreme Court has the authority over the admission and practice of law in the State of California, it is arguably appropriate that the Supreme Court take the leading role in assessing how the State Bar, as its administrative arm, is best structured and governed to support adequate regulation of the legal profession, protection of the public, and the AB 2878 (Committee on Judiciary) PageP of? effective administration of justice. In recognition of the Supreme Court's primary authority over the admission and practice of law and in deference to the Chief Justice, the following amendment is suggested to remove the Commission that would study governance and replace it with the Chief Justice's language whereby the Special Master would review issues of governance of the State Bar. Suggested Amendments : On page 6, in line 4, strike out "SEC. 2." and insert "SEC. 1." On page 7, strike out lines 29 through 39. On page 8, strike out lines 1 through 37 and insert: SEC. 2. Section 6001.3 is added to the Business and Professions Code, to read: (a) In exercise of its oversight role over the State Bar, the Supreme Court shall assess whether changes to the governing board or overall structure of the State Bar would better support regulation of the legal profession, protection of the public, and effective administration of justice. (b) To aid in its assessment, the Supreme Court shall appoint a special master on or before March 1, 2017. (c) The special master shall review issues of governance of the State Bar, including, but not limited to, a full review of other states with attorney regulatory structures that are similar to or different than the State Bar, possible changes to the composition and operation of the Board of Trustees, and a possible restructuring of the regulatory and non-regulatory functions of the State Bar. (d) To aid the special master in fulfilling his or her duties, the Supreme Court shall provide a list of questions pertaining to governance, regulatory, and other areas perceived as aiding in or interfering with regulation of the legal profession, protection of the AB 2878 (Committee on Judiciary) PageQ of? public, or effective administration of justice. The Supreme Court shall consult with the Administration, the Assembly Committee on Judiciary, and the Senate Committee on Judiciary, who will be invited to contribute questions to this list. The Supreme Court shall provide written guidelines to the special master for the conduct of his or her duties. The list of questions and written guidelines shall be made available to the public. (e) The special master shall engage in fact-finding to identify: (1) Those functions of the State Bar that are regulatory, those functions that are non-regulatory but which reasonably serve to protect the public or improve the administration of justice, and those functions that are non-regulatory and provide little or no value to public protection or the administration of justice. (2) All areas that relate to the State Bar's governance structure and interfere with the competent performance of its regulatory and public protection functions and its efforts to improve the administration of justice. (3) All changes and refinements in the structure or governance of the State Bar that reasonably should be considered by the Supreme Court as potentially effective in addressing the areas identified in subdivision (f)(2). In ascertaining which changes reasonably should be considered, the special master shall identify the fiscal and operational implications of the changes. For each change identified, the special master shall provide a proposed implementation plan that includes specification of all modifications to statutory law, Rules of Court, and Rules of the State Bar that will be necessary to accomplish such change. (f) To aid in the fact-finding process, the special master shall hold public hearings to accept written and transcribed oral comments from the public and interested stakeholders, including the authorized State Bar employee bargaining unit representatives. The special master shall also receive the transcribed and other AB 2878 (Committee on Judiciary) PageR of? written comments and information previously taken during the public hearings conducted in 2016 by the State Bar's Governance in the Public Interest Task Force. The special master shall provide bi-monthly written reports of updates on his or her work to the Supreme Court, the Administration, the Assembly Committee on Judiciary, and the Senate Committee on Judiciary.(g) On or before October 1, 2017, the special master shall deliver a written report to the Supreme Court, the Administration, the Assembly Committee on Judiciary, and the Senate Committee on Judiciary. The report shall set forth the special master's findings of fact as required in this section, and may include other observations made by the special master, if related to the performance or functioning of the State Bar and supported by substantial and credible information. (h) Based on its review of the special master's report, and after consultation with the Administration, the Assembly Committee on Judiciary, and the Senate Committee on Judiciary, the Supreme Court shall make its assessment of how the State Bar, as its administrative arm, is best structured and governed to support adequate regulation of the legal profession, protection of the public, and the effective administration of justice. The Supreme Court's written report of its assessments shall be delivered to the Administration, the Assembly Committee on Judiciary, and the Senate Committee on Judiciary on or before March 1, 2018. It is contemplated that the Legislature will evaluate the Supreme Court's report in exercising its regulatory authority pursuant to the State Bar Act. (i) The State Bar shall furnish the special master with all reasonable assistance as necessary. To pay for the services and expenses of the special master, a per-member fee shall be assessed for all active members at a sum not exceeding ($ ). 6.Alternative when State Bar due bills fail to be signed into law If no State Bar dues bill is enacted by January 1, 2017, attorney bar dues may increase. In last year's State Bar dues AB 2878 (Committee on Judiciary) PageS of? bill, the Legislature required that the State Bar develop and implement a workforce plan for its discipline system and conduct a public sector compensation and benefits study, including a recommendation for an appropriate backlog goal and an assessment of staffing needed to achieve that goal. The Legislature further required the State Bar to conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for its annual dues. The workforce plan and the spending plan, which could arguably justify increased dues, were submitted to the Legislature in May 2016. In the event that AB 2878 does not pass or is vetoed, the Supreme Court, in the exercise of its inherent constitutional power over regulation of the legal profession, may order a special regulatory assessment to fund the State Bar's discipline-related functions. In the case of In re Attorney Discipline System (1998) 19 Cal.4th 582, the Supreme Court considered information provided by the State Bar in ordering that each active member of the State Bar pay a mandatory regulatory fee of $171.44. The Court also appointed a Special Master to supervise and oversee the collection, disbursement, and allocation of the collected fees, and imposed an additional fee of $1.56 upon each active member of the State Bar to pay for the fees and expenses related to the Special Master and his activities. If AB 2878 fails, it is likely that the Supreme Court will act in a similar fashion if AB 2878 fails. 7.Codifying a protocol to protect immigrants from the unauthorized practice of law In January of this year, the Daily Journal revealed that the State Bar had ignored 59 complaints of unauthorized practice of law dating back to 2007. (Lyle Moran, State Bar Admits Ignoring Dozens of Complaints Against People Practicing Law Without a License, Daily Journal (Jan. 29, 2016).) In response, the State Bar acknowledged that "[c]omplaints against non-attorneys often come from immigrants who have been exploited by unscrupulous businesses, and it is important to [the State Bar] to root out this fraud and safeguard the public's interests[.]" Less than two months later, the Daily Journal reported that the State Bar allowed an additional 270 complaints alleging the unauthorized practice of law to sit idle without assignment to an investigator for months. (Lyle Moran, State Bar Let Hundreds of Complaints Against Non-Attorneys Sit Idle, Daily Journal (March 4, 2016).) AB 2878 (Committee on Judiciary) PageT of? At a recent Summit organized by the State Bar regarding the Unauthorized Practice of Law, immigration law practitioners shared stories about the State Bar not following through on complaints they filed on behalf of immigrants against those engaged in the unauthorized practice of law and attorneys licensed in other states who practice immigration law in California. At that Summit, the State Bar revealed new protocols they were developing to handle unauthorized practice of law complaints. Correctly recognizing that failure to immediately investigate allegations of unauthorized practice of law leaves future victims vulnerable to the perpetrators, and in the interest of protecting the public, this bill would codify those protocols. Also at the Summit, it was clear that the OCTC lacks meaningful experience in immigration law. The OCTC would arguably benefit from employing an attorney with significant immigration law experience. Accordingly, the author may wish to consider the following amendment to require the OCTC to employ a supervising attorney with significant immigration experience: Suggested amendment : On page 20, in line 23 insert: "(n) the Office of Chief Trial Counsel shall hire at least one supervising attorney with the following experience: (1) Have at least three years of experience handling asylum, T-Visa, U-Visa, or special immigrant juvenile status cases and have represented at least 25 individuals in these matters. (2) Have experience in representing individuals in removal proceedings and asylum applications. 8.The State Bar Enforcement Monitor Audits by the State Auditor's Office and media accounts have demonstrated that the discipline system at the State Bar in the Office of Chief Trial Counsel (OCTC) is broken. The 2015 State Auditor's performance audit of the State Bar revealed that the State Bar did not fully and consistently report its backlog of discipline cases or its case processing times to the Legislature. The Auditor asserted that the manner in which the State Bar reduced its backlog of discipline cases may have caused significant risk to the public. According to the AB 2878 (Committee on Judiciary) PageU of? Auditor, "?to reduce its backlog, the State Bar allowed some attorneys whom it otherwise might have disciplined more severely-or even disbarred-to continue practicing law, at significant risk to the public." In an effort to improve the processing of complaints from intake to resolution in the OCTC, this bill would require the Chief Justice to appoint a temporary State Bar enforcement program monitor (Monitor) prior to March 31, 2017. The Monitor would be given various duties, including, monitoring and evaluating the State Bar's disciplinary system and procedures. The Monitor would be charged with making his or her highest priority the reform and reengineering of the State Bar's enforcement program and operations, and the improvement of the overall efficiency of the State Bar's disciplinary system so that the State Bar may successfully and consistently protect the public. The Monitor would be required to submit an initial report to the Assembly and Senate Committees on Judiciary and others no later than October 1, 2019, and to issue a final report before March 31, 2020. Statutory authorization for the Monitor would cease on January 1, 2021. The strong evidence of a broken discipline system in the OCTC arguably warrants the imposition of an independent Monitor. That being said, staff notes that this Committee has received no complaints regarding the State Bar Court or the Supreme Court regarding their respective roles in State Bar discipline. Because the Chief Justice is part of the Supreme Court, it would arguably be more appropriate for another person to appoint the Monitor. Accordingly, the author's office suggests giving that authority to the California Attorney General instead. The following author's amendments would make that change and also correct an inadvertent error in the bill regarding the year the Monitor provisions sunset. Author's Amendments : On page 14, in line 35, strike out "Chief Justice of the California Supreme" and insert "Attorney General" On page 14, in line 36, strike out "Court On page 14, in line 37, strike out "the Chief Justice of the California" On page 14, strike out line 38 AB 2878 (Committee on Judiciary) PageV of? On page 14, in line 39, strike out "conduct interviews of candidates for the position." On page 15, in line 6, remove "Chief Justice" and insert "Attorney General" On page 15, strike out line 35 and insert "duties." On page 15, strike out lines 36 and 37. On page 16, in line 16, strike out "2020," and insert "2021," 9.Respecting the victims of dishonest attorneys The Legislature required the Board to establish and administer a Client Security Fund to relieve or mitigate pecuniary losses caused by dishonest conduct of active members of the State Bar. In the May 2016 audit of the State Bar, the State Auditor noted: The State Bar has not clearly informed stakeholders of the amounts it estimates it will pay to reimburse members of the public who suffer financial losses because of dishonest attorneys. By the end of 2015, the State Bar estimated it would pay about $18.9 million from its Client Security Fund for such reimbursements. Unfortunately, the Client Security Fund had approximately $2.2 million available by that time, severely limiting the State Bar's ability to pay these claims. However, beginning in 2012, the State Bar eliminated from its financial statements any disclosure of Client Security Fund claims it expected to pay, reporting instead that the fund's balance had improved. This impeded stakeholders' ability to assess the financial condition of the Client Security Fund. After we discussed this issue with the State Bar, it revised its 2015 financial statements to disclose the amount of the Client Security Fund's estimated payouts. (California State Auditor, State Bar of California: Its Lack of Transparency Has Undermined Its Communications With Decision Makers and Stakeholders, Report 2015-047 (May 2016).) The State Auditor further reported that by the end of 2015, the AB 2878 (Committee on Judiciary) PageW of? State Bar had about 5,500 applications that the State Bar estimated would cost $18.9 million. However, the Client Security fund balance had dropped to $2.2 million, thus reducing the State Bar's ability to pay claims in a timely manner. Because "the State Bar lacked the funds necessary to pay claims, it slowed its claims processing from about 18 months to about 36 months?" In response to the State Auditor's report that the State Bar has lacked transparency around providing the Legislature with an ability to accurately assess the financial condition of the Client Security Fund, and in response to claims now taking about 36 months to process, this bill would require the State Bar to conduct a thorough analysis of the Client Security Fund and to submit a report to the Legislature on its analysis of that fund by March 15, 2017. The analysis is intended to help ensure that the Client Security Fund can adequately protect the public and relieve or mitigate financial losses caused by the dishonest conduct of members of the State Bar by paying claims in a timely manner. The author offers the following amendment to clarify what is meant by paying claims in a timely manner and to allow for a review of the governance structure of the Client Security Fund to ensure that the structure provides for the most effective and efficient operation of the Fund. Author's amendment : On page 21, on line 8, after "including" insert "a review of the governance structure of Client Security Fund to ensure that the structure provides for the most effective and efficient operation of the Fund," On page 21, on line 27, after "from the" insert "later of the" On page 21, on line 27, after "Bar" insert "and upon the resolution of underlying discipline case involving an attorney member, which is a prerequisite to paying the claim" 10.Correcting problems identified by the State Auditor in the most recent audit of the State Bar and the authorization of further audits AB 2878 (Committee on Judiciary) PageX of? Last year's State Bar dues bill required the Board to contract with the California State Auditor to conduct an in-depth financial audit of the State Bar, including an audit of its financial statement, internal controls, and relevant management practices. The audit was required to, at a minimum, examine the revenues, expenditures, and reserves of the State Bar, including all fund transfers. The Auditor submitted the audit in May of 2016 and noted the following: We identified other instances in which the State Bar's reports lacked transparency. For example, the State Bar reported the balance in two of its funds as unrestricted-or available for general use-when, in fact, that money could only be used for specific purposes. The State Bar also has not clearly reported its budget assumptions to the Legislature, despite the fact that the Legislature relies on that budget to ensure the reasonableness of the State Bar's fees. In addition, the State Bar recently pledged its member fee revenue when it entered into a loan agreement without informing the Legislature, even though the pledge might have restricted the Legislature's ability to lower the State Bar's fees. After we discussed our concern regarding this loan provision with the State Bar, it replaced this provision with a $7 million debt service reserve. The State Bar also created and used a nonprofit foundation without sufficient oversight of its Board of Trustees, and recently used almost $14,800 from its general fund to eliminate the foundation's fund deficit without its board's knowledge or approval. (California State Auditor, State Bar of California: Its Lack of Transparency Has Undermined Its Communications With Decision Makers and Stakeholders, Report 2015-047 (May 2016). In response to the State Auditor's report that the State Bar continues to lack transparency in its reports to the Legislature, this bill would require the Board to contract with the California State Auditor's Office for an audit of its revenues, expenditures, reserves, and its financial statements for each fiscal year through 2020. This would be in addition to the biannual performance audit that the State Bar is required to contract with the State Auditor to perform and the annual audit of the Bar's financial statement that is required to be performed by an independent accounting entity. Accordingly, in AB 2878 (Committee on Judiciary) PageY of? the next few years, the Board would have to contract with the State Auditor for two types of audits and also would have to contract with an additional independent auditor for an audit of their financial statement. SEIU 1000, an authorized State Bar employee bargaining unit representative, writing with a support with amendments position, states: The current language of the bill also sets out a series of reports and audits on top of existing reports and audits. The timing of these reports creates a hardship for our members and, we believe, sets up the State Bar to fail in its regulatory reforms. We believe that the Legislature, when requiring reports or audits must set reasonable timelines to plan, report, and implement the recommendations in such a way that is productive. The author offers the following amendments in an effort to streamline the audits: Author's amendments : On page 21, in line 38, strike out "the Supreme Court," and insert "California," On page 22, after line 15, insert: "The State Auditor shall develop a methodology for auditing the State Bar's revenues, expenditures, reserves, and its financial statement for the audit due to the board, to the Chief Justice of California, and to the Assembly and Senate Committees on Judiciary in 2018, and may, for all financial audits performed subsequently to that audit, contract with a third party to conduct the financial audit following the methodology developed by the State Auditor in this paragraph and subject to State Auditor review. On page 22, in line 27, strike out "the Supreme Court," and insert "California," On page 22, in line 35, strike out "the Supreme" and insert "California," On page 22, in line 36, strike out "Court," On page 22, in line 38, strike out "the California Supreme AB 2878 (Committee on Judiciary) PageZ of? Court," and insert "California," On page 23, between lines 4 and 5 insert "The performance audits due to the board, to the Chief Justice of California, and to the Assembly and Senate Committees on Judiciary in 2017 and in 2019 may be combined with the financial audit required in subdivision (a)." On page 23, in line 35, strike out "the California Supreme Court," and insert "California," On page 24, in line 20, strike out "the California Supreme Court," and insert "California," On page 24, in line 28, strike out "the Supreme Court," and insert "California," Additionally, in response to State Auditor's finding that the State Bar recently pledged its member fee revenue when it entered into a loan agreement without informing the Legislature, even though the pledge might have restricted the Legislature's ability to lower the State Bar's fees, this bill would delete the provision in law that provides that the Legislature may not reduce membership dues if the Board secures an obligation of the State Bar on membership dues. Further, in response to the State Auditor's report that the State Bar also created and used a nonprofit foundation without sufficient oversight of its Board, and recently used almost $14,800 from its general fund to eliminate the foundation's fund deficit without its Board's knowledge or approval, this bill would prohibit the State Bar from creating any foundation or nonprofit corporations as of December 31, 2016. 11.Removing politics from governance, streamlining the State Bar Board of Trustees, and being more inclusive of appointees from all appointing authorities The State Bar Board (Board) consists of 19 Board Member positions. Of those 19 positions, 6 are public member positions (non-attorneys) and 13 are attorneys. Of the 6 public members, 4 are appointees of the Governor, one is an appointee of the Senate Committee on Rules, and one is an appointee of the Assembly Speaker. Of the 13 Attorney appointees, 6 represent AB 2878 (Committee on Judiciary) PageA of? districts within California and are elected by attorneys, 5 are appointed by the Supreme Court, one is appointed by the Senate Committee on Rules, and one is appointed by the Assembly Speaker. This bill would require the Board to transition from a 19 member board to a 13 member board through the gradual elimination of the 6 elected attorney positions. The bill also removes the attorney appointee from the Speaker of the Assembly and allows the Speaker instead to appoint a public member. Accordingly, the new Board would consist of 7 public members and 6 attorney members. This bill would further require each member of the Board appointed after December 31, 2016, to have demonstrated educational or experience expertise, or both, in one of 5 specified areas, including public finance. While current law provides that the officers of the State Bar are the president, vice president, secretary, and treasurer, and are elected by the Board, this bill would instead require the Supreme Court to select from its appointed members a president and vice president of the State Bar. These robust changes to the board structure would arguably lead to a more focused, efficient, and less political Board. The author seeks the following amendments to further reform the Board structure. The following author's amendments would: (1) allow rather than require the appointing bodies to consider appointees with educational or experience in six areas, including immigration law; (2) would allow the appointees of the Supreme Court and the appointees of the Governor, Senate Committee on Rules and Speaker of the Assembly to serve for a term of four years instead of three; and (3) change the title of Board President and Vice President to Board Chair and Vice-Chair, to allow the Supreme Court to appoint both the Chair and Vice-Chair, and to allow their terms to be two years as Chair and Vice-Chair instead of one year terms, which will arguably allow for more consistency on the Board. Author's amendments : 1) On page 9, in line 19, strike out "Each member appointed" and insert "When making appointments to the Board" AB 2878 (Committee on Judiciary) PageB of? On page 9, in line 19, strike out "shall have" and insert "each appointing body should consider appointing members with" On page 9, in line 20, strike out "educational" and insert "education" On page 9, in line 20, strike out "experience expertise," and insert "experience," On page 9, after line 26, insert "(6) Immigration law" 2) On page 9, in line 39, strike out "three" and insert "four" On page 10, in line 10, strike out "three" and insert "four" On page 11, in line 14, insert "be four years" before "and he" Amend Section 6013.1 of the Business and Profession Code to reflect a term of four years, instead of three, for Supreme Court appointments to the Board. . 3) On page 11, in line 34, strike out "its" On page 11, in line 35, strike out "appointed" and insert "the" On page 11, in line 35, strike out "a president and a vice president" and insert "of the board a chair and a vice-chair" On page 11, in line 36, strike out "president." And insert "chair." On page 11, strike out lines 37 through 39 On page 12, in line 1, strike out "year." On page 12, in line 4, strike out "president, vice president, and treasurer" and insert "chair and vice-chair" AB 2878 (Committee on Judiciary) PageC of? On page 12, in line 6, strike out "appointment or" and insert "appointment." On page 12, strike out line 7. On page 12, in line 8, strike out "president" and insert "chair and vice-chair" On page 12, in line 8, strike out "one-year, except" and insert "two-years," On page 12, strike out lines 9 through 16 On page 12, in line 20, strike out "officers" and insert "secretary and treasurer" Staff notes, under current law, the 19-member Board consists of a supermajority of attorneys (13) as compared to public members (6). This bill creates a public member majority Board consisting of seven public members and six attorney members. The arguments offered by proponents of a public member majority board appear to rely on the premise that attorneys would be inherently self-interested and more likely to render decisions as Board members that would advantage attorneys to the detriment of the public. Proponents also argue that the State needs to preserve anti-trust immunity<2> through changing the composition of the Board from a supermajority attorney Board to a majority public member Board. Some letters received by the Committee point to the Supreme Court decision of North Carolina State Board of Dental Examiners v. FTC (2015) 135 S. Ct. 1101 as necessitating a need for a public majority Board with each vote controlled only by the public members. Staff notes, however, that the Court in the North Carolina State Board of Dental Examiners case in no way held that market participant majority boards would inherently eviscerate the state's anti-trust immunity. Having a majority --------------------------- <2> The United States Supreme Court in Parker v. Brown (1942) 317 U.S. 341 interpreted antitrust laws to confer immunity on anticompetitive conduct by the States when acting in their own sovereign capacity. AB 2878 (Committee on Judiciary) PageD of? public member controlled Boards would not ensure anti-trust immunity with respect to every single decision or action taken by the Board. They key for a State to receive anti-trust immunity is for a Board to receive active supervision by the State when it is engaging in decisions regarding market participation. For example in the North Carolina case, the state could not invoke anti-trust immunity because the state was not actively supervising the Board when it determined that teeth whitening could only be performed by dentists and issued cease-and-desist letters to non-dentist teeth whiteners. Notwithstanding the fact that the state had a Dental Practice Act that did not address teeth whitening, the dental board decided that teeth whitening was solely within dentists' scope of practice. Accordingly, it is unclear as to why the very fact specific decision in the North Carolina case should have any impact on how California decides the best composition of its State Bar Board. The Bar makes suggestions about what rules practicing lawyers should be subject to through their recommendations regarding the Rules of Professional Conduct. The Supreme Court ultimately determines whether to accept or reject those rules. The State Bar's Office of Chief Trial Counsel makes determinations regarding the discipline of lawyers. But, the Supreme Court has final say in matters of discipline. It is the Legislature and Supreme Court who make determinations about criteria for becoming attorneys and what is within the scope of practice of an attorney. There is nothing to suggest that the State Bar Board has been engaging in the same kind of activity that made the state of North Carolina lose their anti-trust immunity in that specific circumstance. Indeed, the Committee has not been made aware of any instances in which our supermajority attorney Bar Board has been sued for anti-competitive/anti-trust activity. Staff further notes that other state professional boards, such as the Medical Board, are comprised of a majority of members of the profession. Notably, the Court in the North Carolina case actually noted that having market participant controlled boards could be beneficial. As stated by the Court, "[t]he States have a sovereign interest in structuring their governments and may conclude that there are substantial benefits to staffing their agencies with experts in complex and technical subjects. There is, moreover, a long tradition of citizens esteemed by their professional colleagues AB 2878 (Committee on Judiciary) PageE of? devoting time, energy, and talent to enhancing the dignity of their calling." (Id. At 1115 (internal citations omitted).) An effective way for the state to preserve its anti-trust immunity is to ensure that appointees are ethical, balanced, and fair. Each of the four appointing authorities have the obligation to ensure their appointees, whether attorneys or non-attorneys, possess high ethical standards. Doing away with attorney-elected appointees, as this bill does, will ensure that the Assembly, Senate, Governor, and Supreme Court maintain all control over the caliber of appointees to the Board. The following amendments are suggested to change the board composition to consist of 6 public members and 7 attorney members. Suggested amendment : On page 9, in line 37, strike out "Rules." and insert "Rules, and one by the Speaker of the Assembly." On page 10, in line 4, strike out "minimum of seven" and insert "maximum of six" On page 10, in line 18, strike "two" and insert "one" On page 10, in line 19, strike "members" and insert "member" On page 10, strike out lines 27 through 32 The following suggested author's amendment would require that members of the Executive Committee include at least one appointee by each of the appointing entities. This will allow for oversight and parity in participation by all appointing entities in the most crucial decisions made by the Board. Author's amendment : Add a new section to the bill amending Section 6029 of the Business and Professions Code to read: (a) The board may appoint such committees, officers and employees as it deems necessary or proper, and fix and pay salaries and necessary expenses. AB 2878 (Committee on Judiciary) PageF of? (b) The members of the Executive committee shall include at least one member appointed by each of the Supreme Court, the Governor, the Senate Committee on Rules and the Speaker of the Assembly. The following amendments are suggested to: (1) remove unnecessary provisions due to the removal of elected attorneys and allow the appointing entities to appoint for unexpired terms when vacancies occur; and (2) remove the bill's findings and declarations as this bill is now substantive: Suggested amendment : 1) On page 9, in line 39, after "years." insert "Vacancies shall be filled for the remainder of the term." On page 10, strike out lines 11 through 15, and insert "years. Vacancies shall be filled for the remainder of the term." On page 11, in line 13, strike out "commence at the conclusion of the annual meeting" On page 11, in line 14, strike out "Succeeding his or her election or appointment," On page 11, in line 15, strike out "elected or" On page 11, strike out lines 16 through 18 and insert "qualified. Vacancies shall be filled for the remainder of the term." 2) On page 4, strike out lines 1 through 31. On page 5, strike out lines 1 through 40. On page 6, strike out lines 1 through 3. 1.Refinements to Bagley-Keene and the California Public Records Act This bill would provide that access to records of the State Bar Court is subject to the rules and laws applicable to the judiciary instead of the California Public Records Act and would exempt the State Bar Court from the Bagley-Keene Open Meeting AB 2878 (Committee on Judiciary) PageG of? Act. Out of an abundance of caution to ensure that the statutory exception to California Public Records Act enacted last year, that prohibited sharing identifying information submitted by an applicant to the State Bar, would not be construed to be violated in the event of sharing information for purposes such as announcing applicants who have passed the bar examination, the author proposes the following amendments. Author's amendments : On page 13, in line 4, strike out "to the board" On page 14, after line 28, insert "This subdivision shall apply retroactively to January 1, 2016." 2.Push for removing the sections of the State Bar from the State Bar This Committee received letters urging it to amend the bill to, at the very least, remove the sections from the State Bar. Proponents of de-unifying the State Bar assert that the structure is inherently infirm and results in a distracted State Bar that spends too much time on "trade association" matters and not enough time on discipline. In support of decoupling, the Center for Public Interest Law writes the following: It is time for action. It is completely improper for a government agency to mix regulatory duties with trade association activities that are promotional and protective of the profession the agency is supposed to regulate. That creates a conflict of interest, and has resulted in time-consuming and bureaucratic calculations of expenditures which may be funded with compulsory Bar licensing fees and those that may not be so funding. No other California occupational licensing agency is structured as such; no other agency has a 'Hudson deduction' by which licensees can opt out of paying for trade association activities they choose not to support. Also, in support of decoupling, a group of Board Members, including both Senate appointees, assert the following: The Board of Trustees is a distracted regulator. It spends AB 2878 (Committee on Judiciary) PageH of? much of its energy on professional association matters such as appointments of attorneys to positions of prestige, providing continuing legal education in competition with voluntary bars and for-profit providers while also regulating those providers, conducting an annual conference that draws fewer attendees and requires greater subsidy each year, publishing legal content, selling insurance, etc. [. . .] over that past two years, the Board has spent far more time in closed session addressing personnel, litigation and real estate issues than it has devoted in open session to regulation [. . .]. [T]he aspirations of attorney Trustees to attain the coveted tile of president of the California State Bar have very destructive consequences. Would-be Presidents often identify themselves from the moment they are seated and begin to compete for an election to be held three years later. The election season is perpetual. Although this bill does not provide for the removal of the sections from the State Bar, it arguably addresses many of the issues raised by those who wish to decouple the State Bar. For example, this bill substantially revises the State Bar Act so as to reduce the politics on the Board, shine light on State Bar finances, provide victims of unauthorized practice of law a better opportunity to be heard, and increases the likelihood that victims of nefarious attorneys are able get restitution from the Client Security Fund. Support : California Lawyers Guild; Responsive Law; SEIU Local 1000 (support if amended); State Bar Board of Trustees Denny Mangers, Heather Linn Rosing, Glenda Corcoran, and Joanna Mendoza (support if amended); several individuals (support if amended) Opposition : Center for Public Interest Law (CPIL) (oppose unless amended); several individuals (oppose unless amended) HISTORY Source : Assembly Committee on Judiciary Related Pending Legislation : None Known Prior Legislation : SB 387 (Jackson, Ch. 5, Stats. 2015) AB 2878 (Committee on Judiciary) PageI of? authorized the State Bar of California to collect active membership dues of up to $390 for the year 2016; required the State Bar to develop and implement a specified workforce plan for its discipline system; required the State Bar to conduct a public sector compensation and benefits study, conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for the annual membership fee, as specified; required the State Bar to contract with the California State Auditor's Office to conduct an in-depth financial audit of the State Bar; and made the State Bar subject to the Bagley-Keene Open Meeting Act and the California Public Records Act, as specified. Prior Vote : Assembly Floor (Ayes 79, Noes 0) Assembly Floor (Ayes 10, Noes 50) Assembly Judiciary Committee (Ayes 10, Noes 0) **************