BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Hannah-Beth Jackson, Chair 2015 - 2016 Regular Session SB 387 (Jackson) Version: February 24, 2015 Hearing Date: May 12, 2015 Fiscal: No Urgency: No BCP SUBJECT Attorneys: annual membership fees DESCRIPTION This bill would authorize the State Bar of California (State Bar or the Bar) to collect active membership dues of up to $390 for the year 2016. Consistent with existing law, those dues would fund only mandatory programs of the State Bar, and members could deduct $5 if they did not wish to support lobbying and other legislative activities. Members could also deduct an additional $5 if they did not wish to fund access and elimination of bias programs. BACKGROUND 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 Bar of California is the largest state bar in the country. As of May 2015, the State Bar had 183,978 active members and 55,240 inactive members, which represents a slight annual increase in both active members and inactive members. Total State Bar membership is listed at 253,208, which includes 2,149 judge members and 11,840 members who are "Not Eligible to Practice Law." The Bar's programs are financed mostly by annual membership dues paid by attorneys as well as other fees paid by applicants seeking to practice SB 387 (Jackson) PageB of? law. This bill would authorize the State Bar to collect the annual membership dues for 2016. CHANGES TO EXISTING LAW 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 case law , Keller v. State Bar of California (1990) 496 U.S. 1, prohibits the use by the State Bar of mandatory dues to fund political and ideological activities, as a violation of a member's First Amendment freedom of speech rights, where such expenditures are not necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of the legal services available to the people of the state. Existing law allows members to deduct up to $5 from the mandatory dues if the member does not wish to fund legislative activities and non-Keller lobbying and activities with his or her dues. (Bus. & Prof. Code Sec. 6140.05; Keller v. State Bar of California (1990) 496 U.S. 1.) Existing law authorizes the State Bar to increase the annual SB 387 (Jackson) PageC of? 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 amount allocated for the purposes of legal services. (Bus. & Prof. Code Secs. 6033, 6140.03.) This bill would authorize the State Bar to collect active membership dues of up to $390 for the year 2016. COMMENT 1. Stated need for the bill According to the author, "SB 387 seeks to authorize the State Bar of California to collect membership dues for 2016. The State Bar's current authority to collect membership dues sunsets on January 1, 2016." The author further notes that the annual bar dues bill is the vehicle by which the Legislature performs its historic oversight function of the State Bar. 2. Mandatory membership dues This bill would authorize the State Bar to collect active membership dues of up to $390 for the year 2016. That amount is consistent with last year and is broken down as follows: $315 for the actual membership fee, $40 for the Client Security Fund, $25 for disciplinary activities, and $10 to fund the Lawyer Assistance Program. Also consistent with prior bar dues bills, SB 387 would only extend the authority for the State Bar to collect membership dues by one year so as to provide an opportunity next year for continued oversight of the State Bar. Staff notes that while there appears to be no debate as to whether or not the State Bar should be able to continue to collect dues for 2016, there has been significant public discussion, as the result of recent litigation, about the activities of the State Bar. It should be noted that some of the concerns arise from allegations that are still subject to pending litigation - as a result, it is unclear what, if any misconduct occurred at the State Bar. In light of those concerns - including those involving the discipline system (which is currently subject to a State Audit) - the following comments discuss significant updates as to the status of the SB 387 (Jackson) PageD of? State Bar. 3. Discipline Under existing law, the State Bar's highest priority is protection of the public, and, 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.) The State Bar, in submitting its Annual Discipline Report for Year Ending December 31, 2014, noted that "[t]he attorney discipline system is, by far, the largest component of the State Bar, and it plays an indispensable role in carrying out the Bar's mission of public protection. It is the discipline system which receives complaints against attorneys, investigates those complaints, prosecutes them when warranted, and recommends sanctions against attorneys found culpable of misconduct. The performance of the discipline system is a crucial measure of the success of the State Bar as a public regulatory agency." (R. Hawley letter re: Annual Discipline Report for Year Ending December 31, 2014 (Apr. 30, 2015) State Bar, pg. 1.) The State Bar further outlined the structure of the discipline system as follows: In California, a lawyer is licensed when admitted as a member of the State Bar. Only active members of the State Bar may practice law. The State Bar is a constitutional agency established in the judicial branch. In administering the requirements for admission and discipline of California lawyers, the State Bar is an administrative arm of the California Supreme Court. Under its inherent judicial power to regulate admission and discipline, it is the Supreme Court that admits and disbars, or suspends a lawyer from the practice of law. In California's attorney discipline system, all communications and information concerning the conduct of California lawyers are first received by the State Bar's Office of the Chief Trial Counsel [(OCTC)]. OCTC investigates those complaints involving allegations of professional misconduct and may initiate and prosecute disciplinary proceedings in the State Bar Court. The Hearing Department of the State Bar Court conducts evidentiary hearings and renders a decision with findings and recommendations of discipline that are reviewable by the Review Department of the State Bar Court. The State Bar Court's final decision and accompanying record in each SB 387 (Jackson) PageE of? case are then transmitted to the Supreme Court. In cases where the State Bar Court recommends the suspension or disbarment of a lawyer, the Supreme Court undertakes an independent determination of the discipline to be imposed. Discipline occurs with a final decision and order of the Supreme Court. (Id., pgs. 2-3.) Regarding the performance of the discipline system, the 2014 Annual Discipline Report notes that, "[a]s of December 31, 2014, the number of backlog active cases was 263, compared to 2,612 in 2010. This included 157 cases still under inquiry or active investigation, as compared to 1,584 in 2010 and 106 cases, for which the investigation was complete but charges had not yet been filed, significantly lower than the 1,028 cases in 2010." (Id., transmittal page.) The report further includes the following statistical data about the discipline system: Activity in 2014 The State Bar's Office of Chief Trial Counsel (OCTC) received 16,024 new complaints, reportable actions, and other cases in 2014. OCTC's Intake Unit processed 15,497 cases, of which 3,791 were referred to the Enforcement Unit for investigation. OCTC completed 3,648 investigations, with 1,084 of those having sufficient evidence to support the imposition of discipline against the attorney, and filed formal charges in 1,008 cases. The State Bar Court took action on 1,675 cases, closing 117 and referring 1,158 to the California Supreme Court. The Supreme Court disposed 1,536 cases, dismissing 4; remanding 1 to the State Bar Court; suspending 1; granting 508 requests for resignations of attorneys without charges pending; and imposing discipline in 1,012 cases. The Supreme Court disbarred 171 attorneys in 2014, including 55 by reason of default, and suspended 263 attorneys. Caseload in 2014 On December 31, 2014, OCTC had an open caseload of SB 387 (Jackson) PageF of? 4,095 active cases, which included 1,796 in the inquiry stage, 1,225 in the investigation stage, 174 in pre-filing, and 900 cases before the State Bar Court. The office's active caseload included 261 active cases over six months old, including 39 in inquiry, 116 in investigation and 106 in pre-filing matters. The office also had a suspended caseload of 1,816 cases in the investigation or pre-filing stages. Of these, 1,712 were over six months old (including 1,548 investigations and 164 pre-filing cases). The office's total backlog, encompassing all active and suspended cases older than six months and not yet formally filed, was 1,973 cases. Speed of Case Handling in 2014 The median time to evaluate a case and refer it for investigation was 21 days. The median time to complete an investigation having sufficient evidence to support the imposition of discipline against the attorney was 155 days. The median time between the completion of an investigation and filing formal charges was 74 days. The median time from formal filing to a referral to the Supreme Court was 168 days. The median total time from the receipt of a complaint to filing of formal charges was 263 days. The median total time from the receipt of a complaint to final disposition by the Supreme Court was 505 days. (Id., pgs. 2-3.) It should be noted that, under existing law, the Board of Trustees is required to contract with the California State Auditor's office to conduct a performance audit of the State Bar's operations every two years. That audit is currently under way and will reportedly focus on the discipline system - accordingly, the State Bar should work with the author and other stakeholders on any recommendations made by the State Auditor when the report is released in the next couple months. As a matter of policy, addressing any concerns raised by the audit would appear essential to ensuring that the State Bar is performing its fundamental mission of public protection by appropriately disciplining attorneys who have violated the public trust. SB 387 (Jackson) PageG of? 4. Client Security Fund Under existing law, the Client Security Fund (CSF) seeks to protect consumers of legal services by mitigating losses caused by the "dishonest" conduct of California attorneys. The CSF is funded through a mandatory contribution that is collected as part of the annual bar dues bill - active members contribute $40, and, inactive members contribute $10. Under the State Bar's rules, the following types of dishonest conduct can lead to reimbursement from the fund: (1) theft or embezzlement of money or the wrongful taking or conversion of money or property; (2) failure to refund unearned attorney fees paid to the lawyer in advance where the lawyer performed no services, or an insignificant portion of the services; (3) the borrowing of money from a client without the intention or reasonably anticipated ability to repay the money; (4) obtaining money or property from a client by representing that it would be used for investment purposes when no investment is made; and (5) an act of intentional dishonesty or deceit that directly leads to the loss of money or property that actually came into the lawyer's possession. The State Bar's 2014 Annual Discipline Report further notes: Between 2005 and 2008, the Client Security Fund (CSF) program received about 1,100 applications per year. However, in 2009, the loan modification fraud crisis spurred a dramatic surge in CSF applications. Over 3,000 new applications were received in 2009 and almost 4,000 were received in 2010. The rate of new applications has declined every year since then, but, even in 2014, applications remained 40 [percent] above the 2005 - 8 level. As a consequence, the Client Security Fund has drawn down its reserves from $11.4 million at the beginning of 2010 to $2.2 million at the end of 2014. At year end, there were 5,674 open applications for CSF assistance. Based on past experience, the State Bar estimates that payouts related to these applications will eventually total $17.6 million. At current revenue levels, it will take approximately three years to collect sufficient funds to finance these grants. (State Bar, Annual Discipline Report for Year Ending December 31, 2014 (Apr. 30, 2015), pg. 58.) Given the current status of the CSF and the public policy goal of ensuring that the losses of consumers injured by dishonest SB 387 (Jackson) PageH of? attorneys are made whole (to the extent possible), the State Bar should continue to explore ways in which the CSF deficit can be addressed. Furthermore, it should be noted that an additional influx of claims could occur in the near future should there be increased instances of immigration fraud as a result of President Obama's series of executive actions relating to immigration accounted on November 20, 2014. 5. Composition of Board of Trustees Under existing law, the State Bar is governed by a Board of Trustees that is generally made up of 19 members.<1> Of those 19 members, 13 are "lawyer members," and 6 are public "non-lawyer" members. The six public members are appointed as follows: four by the Governor, one by the Senate Committee on Rules, and one by the Speaker of the Assembly. Currently, there are four vacant public member seats, and, of those seats, three are due to the lack of appointments of public members by the Governor. The fourth seat has been appointed by the Governor and is pending approval by the Senate Committee on Rules. In light of the current focus on the State Bar, it appears essential that these appointments be made as soon as possible by the Governor. Accordingly, all interested parties should continue working to encourage the Governor to make those appointments as soon as possible so as to allow the Board of Trustees to have the benefit of those public members. The appointment of those public members would appear to be essential so that the Board of Trustees can adequately respond to the recent concerns. 6. Fiscal Condition of the State Bar The following information was reported to the Legislature in the 2014 Financial Statement and Independent Auditor's Report of the State Bar of California: Assets - As of December 31, 2014, the State Bar's total assets were $195.6 million, down slightly by $2.4 million, or 1.2 [percent] compared to $198.0 million last year. The -------------------------- <1> The State Bar notes that the Board of Trustees can theoretically have 20 members as follows: "A president may continue to serve an extra year if his or her term as one of the appointed or elected members has expired. He or she would become the 20th board member." SB 387 (Jackson) PageI of? decrease is due to a combination of 1) a $6.7 million decrease in cash [and] investment; 2) a $0.8 million net decrease in capital assets; partially offset by 3) a $4.6 million net increase in prepayments and accounts receivables; and 4) a $0.5 million net increase in Other Postemployment Benefits Obligation (OPEB) assets. Cash, investments, and restricted cash consisted of balances in demand deposit accounts, money market accounts, the State Bar's share of California's Local Agency Investment Fund, and investment securities. For the year ended December 31, 2014, the combined cash and investment balance was $78.9 million, down by $6.6 million or 7.8[percent] from $85.6 million last year. The lower cash balance is due primarily to grant prepayment made for 2015 and a $1.5 million contribution made to the State Bar's OPEB Plan. Capital assets consisted of land, buildings, building and leasehold improvements, tenant improvement, office equipment, and furniture and fixtures, net of accumulated depreciation. Net capital assets balance as of December 31, 2014, was $101.4 million, a $0.8 million decrease compared to $102.2 million last year. The decrease is due to normal depreciation of $3.6 million, partially offset by $2.8 million additional capital expenditures incurred in 2014. Other assets consisted of interest receivable, prepayments, grants receivable, other receivable, and the OPEB asset. The combined balance as of December 31, 2014, was $15.3 million, up by $5.1 million or 50.0 [percent] from $10.2 million in 2013. The increase is due to a $0.6 million net increase in the OPEB plan asset and a higher prepayment balance as a result of timing of payments of the [State] Bar's two grant funds. The 2015 first quarter grant payments for the Legal Service Trust Fund and Equal Access Fund programs were prepaid in December 2014. Liabilities - The State Bar's total liabilities consisted of accounts payable to vendor accounts, unearned fees collected in advance, grants payable, loans payable, and employee vacation and sick leave accruals. As of December 31, 2014, State Bar's total liabilities were $57.6 million, down by $9.5 million or 14.2[percent] compared to $67.1 million last year. The decrease is a result of a $1.3 million reduction in the loan payable from the repayment of the Los Angeles building mortgage, and a $8.2 SB 387 (Jackson) PageJ of? million decrease in [Interest on Lawyers' Trust Accounts (IOLTA)] grant and accounts payable. The higher accounts payable balance in 2013 was due to the timing of payments for the L.A. building construction costs at year-end. The decrease in grants payable in 2014 is due to the restructuring of the IOLTA grant program. In March, 2014, the Board adopted a resolution to align the IOLTA grant year to a calendar year. As a result, all of the 2014 grant distributions were processed in 2014 and there was not a grants payable balance as of December 31, 2014. Net Position - The State Bar's net position as of December 31, 2014, was $138.0 million, up by $7.1 million or 5.4 [percent] compared to $130.9 million in 2013. Operating Revenues - For the fiscal year ended December 31, 2014, the State Bar's total operating and non-operating revenues were $140 million. Total operating revenues for all programs for 2014 were $137.9 million, up by $1.8 million or 1.3 [percent] compared to $136.2 million last year. The increase is due to a $3.5 million increase in membership revenue, partially offset by a $1.8 million decrease in the AB 145 [(Committee on Budget, Chapter 75, Statutes of 2005)] filing fees in the Equal Access Fund program. The increase in membership revenue is due largely to higher membership revenues received as a result of the $10 increase in the optional contribution to legal services and overall growth in the membership due to new admittees. Total non-operating revenues were $2.1 million, up by $0.8 million or 61.5 [percent] from $1.3 million last year. Operating Expenses - For fiscal year 2014, the State Bar's total operating expenses were $132.8 million, down by $8.7 million or 6.1 [percent] compared to $141.5 million last year. The decrease is a due to a decline of $9 million in IOLTA grant distribution as a result of the program restructuring explained above and a $2.2 million decrease in the Client Security Fund application payouts. These decreases are partially offset by higher operating costs from the new L.A. facility and higher personnel costs from the Bar's implementation of the 2014 MOU. (State Bar, 2014 Financial Statement and Independent Auditor's Report of the State Bar of California (Apr. 30, 2015) pgs. 5-6, 8.) SB 387 (Jackson) PageK of? 7. Update on Strategic Plan Under existing law, the Board of Trustees is required to complete and implement a five-year strategic plan, updated every two years, and submit a report each year on measures taken to implement that plan. The most recent report, submitted by the current president of the State Bar on February 13, 2015, contained various updates, including the following items of particular interest to this Committee: Legal Services - The State Bar has been very active in support of enhanced funding for legal services and administers the following funds: Interest on Lawyers' Trust Accounts (IOLTA) grants; Equal Access Fund (EAF); Justice Gap Fund; State Bar Dues voluntary contribution to legal services; and the Attorney General National Mortgage Settlement Fund Grants. In 2014-2015, annual grants went to almost 100 non-profit legal aid organizations, including direct legal services providers and support centers that collectively provide services in all 58 California counties. Legislatively, the Bar successfully supported an increase, beginning in 2015, to $40 of non-mandatory (opt out) member dues earmarked for legal services funding. The State Bar's Annual dues bill also includes a voluntary check-off box and a suggested donation amount of $100 contribution to the Justice Gap Fund. In 2014, Justice Gap funds were supplemented with an additional line-item on the attorney member dues bill enabling attorneys to contribute $30 to the fund through an opt-out check-off. The donations received through the Justice Gap Fund are combined with revenue from IOLTA and distributed on a formulaic basis to all California legal aid organizations that qualify for grant funding. In 2014, the $30 voluntary check-off box on the Annual dues bill for legal services and the suggested donation amount of $100 contribution to the Justice Gap Fund, allowed the State Bar to raise over $5.5 million [in] additional support for legal services programs. In addition to the funds discussed above, in 2013-2014, the State Bar administered over $10.4 million in grants from the Attorney General National Mortgage Settlement Fund. The State Bar distributed over $6 million of these one-time grants to legal aid organizations helping California families deal with the foreclosure crisis. In addition to supporting increased funding for legal services, the State Bar SB 387 (Jackson) PageL of? is working to find other ways to expand access to courts and lawyers for low and moderate income Californians. The Task Force on Civil Justice Strategies, chaired by then State Bar President Luis Rodriguez and co-chaired by myself was charged with analyzing the "justice gap," evaluating the role of the legal profession in addressing the crisis, seeking broad input from groups working in this area, studying creative solutions being considered in other states and countries, and developing an action plan to fill the justice gap and achieve true "access to justice" in California. The Task Force on Civil Justice Strategies met seven times in 2014, focusing on innovative strategies to address California's "justice gap." A report is forthcoming. Immigration reform - In the wake of the Obama administration's November 2014 announcement of a plan to provide administrative relief and work permits to as many as 3.7 million undocumented parents of U.S. citizens and legal permanent residents, as well as an additional 300,000 young immigrants who were brought to the country illegally as children, the State Bar took unprecedented proactive action to help prevent a potential explosion of misconduct and client abuse in the area of immigration reform fraud. The State Bar has continued to monitor complaints received by the Office of the Chief Trial Counsel since the effective date of AB 1159 [(Gonzalez, Chapter 574, Statutes of 2013)]to identify complaints that the office has opened against attorneys related to immigration work. Additionally, in the area of external relations, the State Bar has taken proactive steps to seek out those who continue to exploit immigrants by ignoring AB 1159: o Developed an External Relations & Outreach Program to targeted partnerships, in order to advance the directive of AB 1159; o Conducted town halls with community organizations, to provide information about the protections and resources available to the immigrant community; o Created an "immigration hotline" telephone number and tracked the number of calls which are directed to the Intake Unit for handling and will track the number of complaints that allege fraudulent acts related to an immigration matter, including violations of AB 1159; and o Issued media releases alerting consumers on immigration related issues. SB 387 (Jackson) PageM of? Public Protection - In the area of expanding external relations to enable a more pro-active approach to public protection, the Bar organized 11 town hall meetings throughout the State in conjunction with other consumer protection agencies and members of state and local government, which focused on consumer fraud issues for Seniors, Veterans, and the general public. (State Bar, Measures To Implement Strategic Plan and To Enhance and Ensure Public Protection (Feb. 13, 2015) pg. 4.) Support : None Known Opposition : None Known HISTORY Source : State Bar of California Related Pending Legislation : SB 134 (Hertzberg, 2015) would authorize the State Bar of California to collect, in conjunction with its annual membership dues, voluntary fees for the support of the Public Interest Attorney Loan Repayment Program. SB 134 is currently on the Senate Floor. Prior Legislation : AB 2746 (Committee on Judiciary, Chapter 429, Statutes of 2014) SB 345 (Evans, Chapter 681, Statutes of 2013) AB 2685 (Committee on Judiciary, Chapter 348, Statutes of 2012) SB 163 (Evans, Chapter 417, Statutes of 2011) AB 2764 (Committee on Judiciary, Chapter 476, Statutes of 2010) SB 55 (Corbett, Chapter 2, Statutes of 2010) SB 641 (Corbett, 2009) was vetoed by the Governor. SB 387 (Jackson) PageN of? AB 3049 (Committee on Judiciary, Chapter 165, Statutes of 2008) SB 686 (Corbett, Chapter 474, Statutes of 2007) AB 1529 (Jones, Chapter 341, Statutes of 2005) AB 145 (Committee on Budget, Chapter 75, Statutes of 2005) SB 1490 (Committee on Judiciary, Chapter 384, Statutes of 2004) AB 1708 (Committee on Judiciary, Chapter 334, Statutes of 2003) SB 352 (Kuehl, Chapter 24, Statutes of 2001) SB 1367 (Schiff, Chapter 118, Statutes of 2000) SB 144 (Schiff, Chapter 342, Statutes of 1999) **************