BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2878| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- 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 AB 2878 Page 2 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; AB 2878 Page 3 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 AB 2878 Page 4 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 AB 2878 Page 5 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 AB 2878 Page 6 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. AB 2878 Page 7 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 AB 2878 Page 8 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. AB 2878 Page 9 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 AB 2878 Page 10 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 AB 2878 Page 11 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.) AB 2878 Page 12 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 Page 13 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 **** END ****