BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 2878|
          |Office of Senate Floor Analyses   |                              |
          |(916) 651-1520    Fax: (916)      |                              |
          |327-4478                          |                              |
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                                   THIRD READING 


          Bill No:  AB 2878
          Author:   Committee on Judiciary   
          Amended:  8/31/16 in Senate
          Vote:     21 

           ASSEMBLY FLOOR:  10-50, 5/31/16 - See last page for vote (FAIL)

           ASSEMBLY FLOOR:  79-0, 6/2/16 - See last page for vote

           SUBJECT:   Attorneys:  State Bar:  board of trustees


          SOURCE:    Author


          DIGEST:  This bill authorizes the State Bar of California (State  
          Bar) to collect annual membership dues for 2017 and, among other  
          things:


             Reconstitutes the membership of the State Bar Board of  
             Trustees (Board) from a 19-member Board consisting of a  
             supermajority of attorneys (13) as compared to non-attorneys  
             (six), to a 13-member Board consisting of seven attorneys and  
             six non-attorney members, by eliminating the six attorneys  
             elected to the Board;  

             Provides that the President and Vice-President of the Board  
             are to be renamed as the Chair and Vice-Chair and to be  
             appointed by the Supreme Court instead of elected by the  
             Board; 

             Provides that each appointing body should consider  








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             appointing members with education or experience in one of six  
             specified areas, including immigration law;

             Provides that members of the Board serve four year terms  
             instead of three;

             Codifies new 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);

             Requires the Office of Chief Trial Counsel at the State Bar  
             to employ at least one supervising attorney with significant  
             immigration law experience;

             Requires the Executive Committee to include at least one  
             Board member appointed by the Governor, Senate, Assembly, and  
             Supreme Court to ensure oversight and participation by all  
             appointing entities in the most crucial decisions made by the  
             Board;

             Provides that access to records of the State Bar Court are  
             subject to the rules and laws applicable to the judiciary  
             instead of the California Public Records Act (CPRA) or  
             Bagley-Keene Open Meeting Act;

             Enhances the annual financial audits of the State Bar and  
             requires an additional performance audit of the State Bar by  
             the State Auditor;

             Requires the Attorney General to appoint a temporary State  
             Bar enforcement program monitor to evaluate the disciplinary  
             system, make recommendations, and report findings, as  
             specified;

             Eliminates the ability of the State Bar to prevent future  
             Legislatures from reducing future membership dues;

             Requires Board approval of contracts for goods, services, or  
             both for an aggregate amount in excess of $50,000 as well as  
             of contracts for information technology, goods, services, or  
             both, for an aggregate amount in excess of $100,000, as  
             specified;







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             Requires the Board to adopt policies and procedures to  
             require Board approval of any contract that could impact the  
             State Bar's ability to carry out its paramount duty to  
             protect the public;

             Prohibits the State Bar from creating foundations or  
             nonprofits, as specified; and

             Requires the State Bar to conduct an analysis of the Client  
             Security Fund (CSF), as specified.


          ANALYSIS:  


          Existing law:


           1) 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. 


           2) Requires all attorneys who practice law in California to be  
             members of the State Bar, establishes that the State Bar is a  
             public corporation established for the purpose of regulating  
             the legal profession.  


           3) 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 2016.  The other $75 is pursuant to  
             statutory authorization to assess annually the following  
             fees: $40 for the CSF; $25 for disciplinary activities; and  
             $10 to fund the Lawyer Assistance Program (LAP). 


           4) 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 2016. The other $40 is pursuant to  







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             statutory authorization to assess annually the following  
             fees:  $10 for the CSF; $25 for disciplinary activities; $5  
             to fund the LAP.


           5) 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 may deduct the $40 from the annual membership fee if  
             they elect not to have the amount allocated for the purposes  
             of legal services.  


           6) Subjects the State Bar to the 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.


           7) 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.


           8) Requires the Board to 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, as  
             specified.


           9) Requires, in relevant part, that every two years, the Board  
             contract with the California State Auditor's Office to  
             conduct a performance audit of the State Bar's operations, as  
             specified. 


           10)      Establishes that the State Bar is governed by a  
             19-member Board of Trustees consisting of six board members  
             who are not attorneys (public members) and 13 members who are  







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             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 and one public member is appointed by  
             the Senate Committee on Rules.  One attorney and one public  
             member is appointed by the Speaker of the Assembly.  Four of  
             the six public members are appointed by the Governor.  


            11)      Provides that the State Bar officers are a president,  
             vice president, secretary, and treasurer, elected by the  
             Board.  


            12)      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.  


            13)      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 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.   


            14)      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.  


            15)      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  







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             obligation.  


            16)      Authorizes the State Bar to raise additional revenue  
             by any lawful means, including, but not limited to, the  
             creation of foundations or not-for-profit corporations.  


            17)      Requires the Board to establish and administer a CSF  
             to relieve or mitigate pecuniary losses caused by dishonest  
             conduct of active members of the State Bar, as specified.  


            18)      Prohibits a person from practicing law in California  
             unless the person is an active member of the State Bar, and  
             provides for the fine and imprisonment of persons who engage  
             in the unauthorized practice of law, as specified.  


            19)      Provides that in addition to any criminal penalties or  
             contempt proceedings, 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 (the "unauthorized practice of law"). The State Bar, or  
             superior court on its own motion, may make application for  
             assumption by the court of jurisdiction over the practice, as  
             specified.  In any proceeding related to the unauthorized  
             practice of law, the State Bar is permitted to intervene and  
             assume primary responsibility for conducting the action.  


           20)      Requires that the court provide a copy of any order  
             issued on the unauthorized practice of law to the Office of  
             the Trial Counsel of the State Bar.  


           This bill:


           1) Requires, until January 1, 2018, the Board to charge an  
             annual membership fee for 2017 of $390 for active members. 







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           2) Provides 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 exempts the State Bar Court from the  
             Bagley-Keene Open Meeting Act.


           3) Requires the California State Auditor's Office to conduct an  
             additional performance audit evaluating the State Bar's  
             progress in certain areas, including correcting any issues  
             raised in prior California State Auditor audits.  


           4) Requires the Board to expand the scope of its annual  
             independent financial statement audit to also include an  
             audit of its revenues, expenditures, and reserves.


           5) Requires 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.


           6) Requires the Board to transition from a 19 member Board to a  
             13 member Board, as specified.


           7) Removes from the Board the six attorney members who are  
             elected from State Bar Districts and would make conforming  
             changes. 


           8) Requires that a maximum of six members of the Board be  
             non-attorney members appointed as follows:  four by the  
             Governor, one by the Assembly Speaker, one by the Senate  
             Rules Committee, and none by the Supreme Court.


           9) Provides that each appointing body should consider  
             appointing members with education or experience, in one of  







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             six specified areas, including immigration law.


           10)      Requires the Supreme Court to select a Chair and  
             Vice-chair of the State Bar.


           11)      Requires the Attorney General to appoint a State Bar  
             enforcement program monitor prior to March 31, 2017, and  
             requires the monitor to evaluate the disciplinary system and  
             procedures of the State Bar, as specified.  


           12)      Requires the program enforcement monitor to submit an  
             initial report no later than October 1, 2019 and to issue a  
             final report before March 31, 2020. This provision sunsets on  
             January 1, 2021.


           13)      Deletes 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.


           14)      Eliminates the ability of the State Bar to prevent  
             future Legislatures from reducing future membership dues.


           15)      Requires Board approval of contracts for goods,  
             services, or both for an aggregate amount in excess of  
             $50,000 as well as of contracts for information technology,  
             goods, services, or both, for an aggregate amount in excess  
             of $100,000, as specified.


           16)      Requires the Board to adopt policies and procedures to  
             require Board approval of any contract that could impact the  
             State Bar's ability to carry out its paramount duty to  
             protect the public.


           17)      Prohibits the State Bar from creating any foundation  
             or nonprofit corporations, as specified.








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           18)      Requires the State Bar to conduct a thorough analysis  
             of the CSF and to submit a report to the Legislature on its  
             analysis of that fund by March 15, 2017, as specified.  


           19)      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.


           20)      Requires the Bar's Office of Chief Trial Counsel to  
             employ a supervising attorney with significant immigration  
             law experience, including representing individuals in removal  
             proceedings and asylum applications.


          Background


          The State Bar 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  







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          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 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. Ultimately, if the  
          Bar dues bill fails to pass or is vetoed, the Supreme Court can  
          exercise its inherent constitutional power over regulation of  
          the legal profession and order a special regulatory assessment  
          to fund the State Bar's discipline-related functions.  


          This bill authorizes the State Bar to collect the annual  
          membership dues for 2017 and makes 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.  


          Comments


          1)Stated need for the bill.  The author writes the following:


               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 publicly reported turmoil  
               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.  [. . . ] This  







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               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 State Bar functions as the administrative arm of the  
            Supreme Court.  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 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. 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.)








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            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. 
                                                

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:YesLocal:   No


          SUPPORT:   (Verified8/31/16)


          None received


          OPPOSITION:   (Verified8/31/16)


          None received

           ASSEMBLY FLOOR:  10-50, 5/31/16 (FAIL)
           AYES: Atkins, Cooley, Dodd, Gordon, Jones-Sawyer, O'Donnell,  
            Quirk, Santiago, Mark Stone, Rendon
           NOES: Alejo, Travis Allen, Arambula, Baker, Bigelow, Bonta,  
            Brough, Brown, Burke, Calderon, Campos, Chang, Chávez, Chiu,  
            Chu, Cooper, Dababneh, Gallagher, Cristina Garcia, Gatto,  
            Gipson, Gonzalez, Gray, Grove, Harper, Roger Hernández,  
            Holden, Irwin, Jones, Lackey, Levine, Lopez, Low, Maienschein,  
            Mathis, Mayes, McCarty, Medina, Obernolte, Olsen, Patterson,  
            Rodriguez, Salas, Steinorth, Ting, Wagner, Waldron, Weber,  
            Wilk, Wood
           NO VOTE RECORDED: Achadjian, Bloom, Bonilla, Chau, Dahle, Daly,  







                                                                    AB 2878  
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            Eggman, Frazier, Beth Gaines, Eduardo Garcia, Gomez, Hadley,  
            Kim, Linder, Melendez, Mullin, Nazarian, Ridley-Thomas,  
            Thurmond, Williams

          ASSEMBLY FLOOR:  79-0, 6/2/16
          AYES:  Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,  
            Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos,  
            Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh,  
            Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher,  
            Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez,  
            Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger  
            Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey,  
            Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes,  
            McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,  
            O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez,  
            Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting,  
            Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
          NO VOTE RECORDED:  Bigelow

          Prepared by:Margie Estrada / JUD. / (916) 651-4113
          8/31/16 21:22:44


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