BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                     SB 387


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          SENATE THIRD READING


          SB  
          387 (Jackson)


          As Amended  September 4, 2015


          Majority vote


          SENATE VOTE:  38-0


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          |Committee       |Votes|Ayes                   |Noes                 |
          |                |     |                       |                     |
          |                |     |                       |                     |
          |                |     |                       |                     |
          |----------------+-----+-----------------------+---------------------|
          |Judiciary       |10-0 |Mark Stone, Weber,     |                     |
          |                |     |Wagner, Alejo, Chau,   |                     |
          |                |     |Chiu, Gallagher,       |                     |
          |                |     |Cristina Garcia,       |                     |
          |                |     |Maienschein, Thurmond  |                     |
          |                |     |                       |                     |
          |----------------+-----+-----------------------+---------------------|
          |Appropriations  |17-0 |Gomez, Bigelow, Bloom, |                     |
          |                |     |Bonta, Calderon,       |                     |
          |                |     |Chang, Nazarian,       |                     |
          |                |     |Eggman, Gallagher,     |                     |
          |                |     |                       |                     |
          |                |     |                       |                     |
          |                |     |Eduardo Garcia,        |                     |
          |                |     |Holden, Jones, Quirk,  |                     |
          |                |     |Rendon, Wagner, Weber, |                     |
          |                |     |Wood                   |                     |








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          SUMMARY:  Reauthorizes attorney license fees at the same level  
          as the current year and improves transparency and accountability  
          of the State Bar and makes the State Bar subject to the Public  
          Records Act and the Bagley-Keene Open Meeting Act.   
          Specifically, this bill:  


          1)Reauthorizes the State Bar to collect up to $390 for active  
            membership dues for the year 2016.
          2)Clarifies that information contained in the State Bar's Annual  
            Discipline Report must include all matters affecting public  
            protection, including specified discipline cases and both  
            average and median case processing times.


          3)Requires the State Bar to develop and implement a workplace  
            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.   Requires 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.  Requires that the workforce plan and the  
            spending plan be submitted to the Legislature by May 15, 2016,  
            and be implemented by December 31, 2016.


          4)Requires the State Bar's Board of Trustees (Board) to contract  
            with the California State Auditor to conduct a financial audit  
            of the State Bar, including an audit of its financial  
            statement, internal controls and practices, and requires that  
            the audit be submitted to the Board, the Chief Justice of the  
            California Supreme Court, and the Assembly and Senate  
            Judiciary Committees by May 15, 2015.  Requires the audit to  








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            examine revenues, expenditures, reserves and fund transfers.  


          5)Subjects the State Bar to the Public Records Act, with  
            specified exceptions.  Provides that 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  
            state law including the Public Records Act.


          6)Effective April 1, 2016, subjects the State Bar to the  
            Bagley-Keene Open Meeting Act, as provided, with exemptions  
            for the Judicial Nominees Evaluation Commission and the  
            Committee of Bar Examiners.  


          7)Contains chaptering out language.


          EXISTING LAW:   

          1)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, requires the annual mandatory membership fee  
            set by the State Bar's Board to pay for discipline and other  
            functions to be ratified by the Legislature.  

          2)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.  Provides that the other $75 is pursuant to  
            statutory authorization to assess annually the following fees:  
             $40 for the Client Security Fund; $25 for the disciplinary  
            system; and $10 for the Lawyer Assistance Program.  

          3)Authorizes the State Bar to collect $75 in annual membership  
            fees from inactive members for a total annual dues bill of  
            $115.  Provides that the other $40 is pursuant to statutory  








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            authorization to assess annually the following fees:  $10 for  
            the Client Security Fund; $25 for the disciplinary system; and  
            $5 for the Lawyer Assistance Program.  

          4)Directs $40 of membership dues to legal services purposes  
            unless a member elects not to support those activities.  

          5)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.  

          6)Requires the State Bar to contract with an independent  
            national or regional public accounting firm to conduct an  
            annual financial audit of the State Bar, as provided, and  
            requires that a copy of the audit and the financial statement  
            be submitted, with 120 days of the close of the fiscal year,  
            to the Board, the Chief Justice of the California Supreme  
            Court and the Assembly and Senate Judiciary Committees.  

          7)Requires the State Auditor to conduct a performance audit of  
            the operations of the State Bar on a biannual basis and  
            requires a copy of the audit be submitted, with 120 days of  
            the close of the fiscal year, to the Board, the Chief Justice  
            of the California Supreme Court and the Assembly and Senate  
            Judiciary Committees.  

          8)Provides, under the California Public Records Act, that all  
            records maintained by local and state governmental agencies  
            are open to public inspection unless specifically exempt and  
            the exemptions include the Judicial Branch.  Requires the  
            State Bar to provide to the public, if requested, specified  
            information on employee compensation and benefits.


          9)Requires, under the Bagley-Keene Open Meeting Act, that all  
            meetings of a state body be open and public, but excludes the  
            Judicial Branch from the Act.  Requires the Board to ensure  
            that its meetings are consistent with, and conform to, the  








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            Bagley-Keene Act.  


          FISCAL EFFECT:  According to the Assembly Appropriations  
          Committee, the State Auditor will incur one-time costs of around  
          $275,000 for the audit, to be reimbursed by the State Bar.

          COMMENTS:  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.  California, like 30 other states  
          including Florida, Texas, and Washington, has a unified bar,  
          which means that the State Bar is both the regulatory arm of the  
          state, as well as an attorney trade association.  Attorneys who  
          wish to practice law in this state must join the State Bar and  
          their dues cover both the regulatory arm and the trade  
          association.  This bill authorizes the State Bar to collect  
          active membership dues of up to $390 for the year 2016.  The  
          mandatory fee of $390 holds mandatory fees constant at the same  
          rate as this year.  

          As required by statute, the State Auditor completes a  
          performance audit of the State Bar every two years.  This year,  
          the State Auditor chose to review the Bar's discipline process,  
          in particular its backlog of discipline cases, and the State  
          Bar's recent $75 million purchase and renovation of a building  
          in Los Angeles.  The audit, released this past June, uncovered  
          significant, questionable decisions made by the Bar in the  
          handling of both matters.  


          Auditor Finds That the Bar Underreported its Backlog and, When  
          Seeking to Eliminate the Backlog, Made Choices That Did Not Put  
          Public Protection First.  The State Bar operates a discipline  
          process to protect the public from unscrupulous attorneys, with  
          possible disciplinary actions ranging from letters of warning  
          and private reprovals to disbarment.  To operate effectively and  
          maximize public protection, the State Bar must minimize its  
          backlog (cases not processed within six months), which otherwise  
          might allow wayward attorneys to continue to practice law,  








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          without review, for too long.  Understanding of the importance  
          of the disciplinary function and the need to reduce its backlog,  
          the State Bar is required to report annually to the Legislature,  
          the Governor and the Chief Justice on the discipline process and  
          any backlog.  Unfortunately, the State Auditor discovered that  
          the State Bar did not fully and consistently report the backlog  
          or its case processing times, and, when taking steps to reduce  
          the backlog, did not protect the public sufficiently.


          First, the audit uncovered that the State Bar did not fully or  
          consistently report its discipline caseload backlog or its case  
          processing times.  More importantly, the Auditor determined that  
          in order to reduce its backlog of discipline cases, the Bar made  
          questionable choices, causing "significant risk to the public."   
          (California State Auditor, State Bar of California:  It Has Not  
          Consistently Protected the Public Through its Attorney  
          Discipline Process and Lacks Accountability 1 (June 2015).)   
          This bill addresses both those issues by requiring that the  
          State Bar fully reports its backlog and reports both its average  
          and its median case processing times.  The bill also requires  
          the State Bar to engage in workforce planning for its discipline  
          system and to conduct a public sector compensation and benefits  
          study to reassess the staff required to oversee its discipline  
          program.  This should help ensure that the State Bar has the  
          right quality and quantity of staff conducting its most  
          important mission - protecting the public from unscrupulous  
          attorneys.  


          In 2012, the State Bar purchased a building in Los Angeles;  
          however, according to the State Auditor, the State Bar did not  
          perform a cost-benefit analysis to determine if the purchase was  
          appropriate and warranted before receiving approval from its  
          Board to purchase the building, did not fully inform the  
          Legislature of its plans, and potentially risked public safety  
          by doing so and not prioritizing other areas, such as attorney  
          discipline.  The State Bar spent $76.6 million on the purchase  
          and renovation of the building, which the Legislature had been  








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          told would cost just one-third of that price - $26 million.  The  
          Auditor found that the decision to purchase the Los Angles  
          building jeopardized the State Bar's core function to protect  
          public safety:  "Rather than using its financial resources to  
          improve its attorney discipline system, the State Bar dedicated  
          a significant portion of its funds to purchase and renovate a  
          building in Los Angeles in 2012."  (Id. at 43)


          Even more troubling, the State Bar chose to secure the  
          additional funding for the Los Angeles building, in part,  
          through a loan that required the State Bar to use $4.6 million  
          of its Public Protection Fund as collateral for the loan.  The  
          sole purpose of the Public Protection Fund, which the State Bar  
          itself established in 2001, is to protect the public in the  
          event of a financial emergency - and that emergency is generally  
          regarded as a veto of the State Bar's annual dues bill, which  
          has happened twice in the last 20 years: once in 1997 and most  
          recently in 2009.  [SB 1145 (Burton) of 1997; SB 641 (Corbett)  
          of 2009.]  However, without any notification to its members or  
          the Legislature, the State Bar chose, unilaterally, to tie up  
          over 70% of its Public Protection Fund - $4.6 million of the  
          $6.5 million fund - for the 15-year life of the loan.  


          The use of the Public Protection Fund to secure the loan on the  
          Los Angeles building is, according to the State Auditor, part of  
          a larger pattern in which the State Bar has been transferring  
          money between its various funds and using the money on unrelated  
          items.  The Auditor found that, from 2009 through 2012, the  
          State Bar made 50 transfers between funds involving a total of  
          $64.2 million.  (Id. at 13.)  While many of these may  have been  
          justified and appropriate, the Legislature may want more  
          oversight, at least in the foreseeable future, to ensure that  
          the State Bar and its Board are making decisions that are truly  
          in the public's best interest.  


          Given the concerns raised by the Auditor about the State Bar's  








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          lack of transparency and accountability, and the given the  
          resulting potential risk to public protection, this bill rightly  
          requires the Auditor do an in-depth financial audit of the State  
          Bar, including a review of the State Bar's internal controls and  
          relevant practices.  The in-depth audit is limited in time -  
          just one year - in the hope that during that time, the State  
          Bar's Board can improve its own oversight of the Bar and ensure  
          that, once again, public protection is the State Bar's paramount  
          priority.  


          Bill Requires Greater Transparency and Accountability for the  
          State Bar.  Unlike other state licensing agencies that operate  
          under the executive branch of government, the State Bar is  
          located within the judicial branch.  As a result, the State Bar  
          has not yet been subject to some of the state's important  
          consumer protection and openness laws which seek to ensure the  
          integrity, transparency, and accountability of state government  
          operations, such as the Public Records Act and the Public  
          Contract rules, and has not been required to fully and  
          completely comply with the Bagley-Keene Open Meeting Act.  This  
          bill requires the State Bar to comply with both the Public  
          Records Act (PRA) and, effective April 1, 2016, the Bagley-Keene  
          Open Meeting Act (BKA), with appropriate exceptions to protect  
          privacy.  In particular, the bill provides that identifying  
          information submitted by applicants to the State Bar for  
          admission to practice law and State Bar admissions records are  
          confidential and not subject to disclosure under the PRA.  This  
          helps protect the legitimate privacy expectations of State Bar  
          applicants.  This bill also exempts the Committee of Bar  
          Examiners and the Commission on Judicial Nominees Evaluation  
          from the requirements of the BKA.




          Analysis Prepared by:                                             
                          Leora Gershenzon / JUD. / (916) 319-2334  FN:  
          0002210








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