SB 1257 Senate Bill - Bill Analysis

BILL ANALYSIS Ó

SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session

SB 1257 (Block)
Version: February 18, 2016
Hearing Date: April 26, 2016
Fiscal: No
Urgency: No
ME

SUBJECT

State Bar: admission: license: pro bono service requirement

DESCRIPTION

This bill would require any person who applies to become a
licensed California attorney to complete at least 50 hours of
pro bono service, as defined, prior to filing an application for
admission with the State Bar of California.

BACKGROUND

In 1963, the United States Supreme Court decided Gideon v.
Wainright (1963) 372 U.S. 335, in which it unanimously ruled
that state courts are required under the Sixth Amendment of the
Constitution to provide counsel in criminal cases for defendants
unable to afford their own attorneys. Thus, in every criminal
case which carries the possibility of imprisonment, the accused
has the right to an appointed counsel when he or she cannot
afford one.

In contrast, the right to counsel in civil proceedings is not as
well established. The concept is not novel, but rather goes
back to the earliest days of the common law when indigent
litigants had a right to appointment of counsel so they could
have access to the civil courts. English courts appointed
attorneys for such litigants as early as the 13th and 14th
centuries, and other countries have recognized a statutory right
to counsel in civil cases. The U.S. Supreme Court, however, has
declined to extend the right to counsel to indigents in civil
proceedings. In Lassiter v. Department of Social Services
(1981) 452 U.S. 18, the Court affirmed that an indigent
litigant's right to an appointed counsel applies only when the
litigant may be deprived of his or her personal liberty.
Consequently, while most European and Commonwealth countries

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have a right to counsel in civil cases, the United States mainly
relies upon limited legal services and pro bono programs to
provide representation in civil matters.

Existing law provides that it has been the tradition of those
learned in the law and licensed to practice law in this state to
provide voluntary pro bono legal services to those who cannot
afford the help of a lawyer; that every lawyer authorized and
privileged to practice law in California is expected to make a
contribution; that in some circumstances, it may not be feasible
for a lawyer to directly provide pro bono services; and that in
those circumstances, a lawyer may instead fulfill his or her
individual pro bono ethical commitment, in part, by providing
financial support to organizations providing free legal services
to persons of limited means. (Bus. & Prof. Code Sect. 6073.)

In recent years, there has been a growing movement, endorsed by
judges, legal leaders and scholars, including the American Bar
Association, California Commission on Access to Justice, and the
Conference of California Bar Associations, to provide legal
counsel as a matter of right to indigent litigants in matters
where basic human needs are at stake. Proponents argue that
meaningful access to the civil justice system is largely
dependent upon legal representation; and that the likelihood of
a just result is significantly increased by competent
representation. In recognition of the need for indigent civil
litigants in California to be represented by legal counsel, the
State of California enacted a pilot project, the Sargent Shriver
Civil Counsel Act, in selected courts to provide legal
representation to low-income parties in civil matters involving
critical issues affecting basic human needs.

To achieve greater access to justice for indigent unrepresented
Californians, this bill would require any person who applies to
become a licensed California attorney to complete at least 50
hours of pro bono service, as defined, prior to filing an
application for admission with the State Bar of California.

CHANGES TO EXISTING LAW

Existing law provides that 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.

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(Bus. & Prof. Code Sec. 6001.1)

Existing law requires that 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.)

Existing law , the State Bar Act, sets forth requirements for an
individual to be certified by the Supreme Court for admission
and a license to practice law, including but not limited to,
having to pass the general bar examination, passing an
examination in professional responsibility, and having to
complete certain legal education in a law school, law office, or
judge's chambers. (Bus. & Prof. Code Sec. 6060)

Existing law provides that every lawyer authorized and
privileged to practice law in California is expected to make a
contribution to provide voluntary pro bono legal services to
those who cannot afford the help of a lawyer. (Bus. & Prof.
Code Sec. 6073)

This bill would require an applicant for admission and a license
to practice law to complete at least 50 hours of pro bono
service, as defined, prior to filing an application.

This bill would define "pro bono service" as work that does
either of the following:
Assists in the provision of legal services without
charge for persons of limited means, not-for profit
organizations, or individuals, groups, or organizations
seeking to secure or promote access to justice, including,
but not limited to, the protection of civil rights, civil
liberties, or public rights; and
Assists in the provision of legal assistance in public
service for a judicial, legislative, executive, or other
governmental entity.

This bill would provide that pro bono service may be completed
in any state or territory of the United States, the District of
Columbia, or any foreign country.

This bill would provide that the pro bono service must be
supervised by an active licensed attorney in good standing.

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This bill would provide that if the pro bono service is
completed in California, the supervisor is required to be
licensed to practice law in California.

This bill would provide that no applicant may satisfy any part
of the 50-hour requirement by participating in any partisan
political activities.

This bill would provide that the 50 hours of pro bono service
shall be provided after the commencement of the applicant's
legal studies, and prior to filing an application for admission
and a license to practice law.

This bill would require, upon completion of the pro bono service
requirement, an applicant shall complete and submit a form to
the State Bar that is signed by the applicant and supervising
attorney that describes the nature and dates of pro bono service
and the number of hours completed.

This bill states that the purpose of the pro bono legal service
requirement is to supplement the applicant's legal education
with practical legal work experience.

COMMENT

1. S tated need for the bill

The author writes:

During their tenure at law school, students have a heavy
course load and are most likely involved in extracurricular
activities. However, most law students do not get hands on
experience in the area they are pursuing, nor do they get to
compare the different types of work they may be involved in
post-graduation. Although there are already various
requirements that must be met in order to sit for the bar
exam, the new pro bono requirement will expose candidates to
real world experience, and explore different segments of the
legal field, while volunteering in different communities.
This is crucial to the development of our work force and the
future of the advancement of diversity in the legal field.

On October 12, 2013, the State Bar's Board of Trustees
adopted the Phase I Final Report of the Task Force on

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Admissions Regulations Reform (TFARR). One of the three
proposed competency training proposals was a 50-hour pro
bono component.

2. Pro-bono requirement would help indigent Californians have
access to justice

As stated by Chief Justice Tani G. Cantil-Sakauye:

Pro bono publico - for the "public good" - not just in the
sense of professional work undertaken voluntarily and
without payment, but in the sense of a public service to
those who are unable to afford the services of skilled
professionals. It is a noble and necessary calling for
all attorneys.

California has a long history of collaboration among key
stakeholders working to increase access to justice, including an
extensive statewide network of nearly 100 legal aid programs, as
well as court-based self-help centers, law libraries, pro bono
lawyers, and other government and nonprofit service providers.
(Judicial Council of California, Report to the Legislature on
the Sargent Shriver Civil Counsel Act, Jan. 29, 2016.)

Additionally, California has a strong public policy in support
of investing in access to justice for California's indigent
population. The state has provided $3 million for immigrant
rights legal organizations to provide legal aid for
unaccompanied immigrant minors and youth to receive predicate
state court orders needed for the immigrants to apply for
Special Immigrant Juvenile Status immigration relief with the
federal government. In the current budget passed last year, the
State of California provided $15 million to organizations to aid
immigrants in applying for Deferred Action for Parents of
Americans (DAPA), Deferred Action for Childhood Arrivals (DACA),
Victims of Crime Visas (U-Visas), Victims of Trafficking Visas
(T-Visas), other immigration remedies, and naturalization.

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Additionally, the state provides $10 million ongoing to legal
service organizations through the Equal Access Fund (EAF).

The pro bono service requirements of those who apply to become
licensed attorneys in the State of California is consistent with
the public policy of the State of California to provide access
to justice to everyone and pro bono legal services to those who
cannot afford competent legal representation.

3. Practical legal training

The purpose of the 50-hour pro bono service requirement,
according to the text of the bill, is to "supplement the
applicant's legal education with practical legal work
experience." Under this bill, each applicant for admission to
the State Bar will need to complete 50 hours of pro bono service
under the supervision of a licensed attorney. Currently, there
is no requirement that California State Bar applicants receive
any practical legal work experience before becoming licensed
attorneys. The pro bono requirement under this bill will ensure
that new California attorneys receive a minimum amount of
practical legal work experience and at the same time help
provide indigent litigants with help they otherwise would not
have received.

Some law schools have law faculty run clinics where students are
able to receive practical and supervised legal training while
aiding indigent populations. For example, the University of
California, Los Angeles Law School (UCLAW) has several clinics,
including an Asylum Clinic, Civil Rights & Police Accountability
Clinic, International Human Rights Clinic, Veterans Benefits
Legal Clinic, and Youth and Justice Clinic. (See
[as of April 19, 2016].)

According to UCLAW:

The UCLA Clinical Program offers extensive and rigorous
practical training for students interested in?public
interest work. Through our clinics, students develop the
skills that will prepare them for a lifelong practice
while making a difference in people's lives. Alongside
faculty members and practicing attorneys, students in our
clinical program are helping non-profit organizations?

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However, the supervising law school faculty may not be an
attorney licensed to practice law in the State of California, as
is required for the State Bar applicant to receive credit for
their pro bono service under the bill's current provisions.
Moreover, a person can practice immigration law in California if
the person is licensed to practice law in other states. Under
the provisions of this bill, hours that an applicant spent
providing immigration help to an indigent immigrant would not
count if the supervising attorney could legally practice
immigration law in California but is not a member of the
California State Bar. To remedy this concern, the author offers
the following amendment:

Author's Amendment :
On page 2, on line 9, strike out "Unless the service is
completed" and strike out line 10, and strike out line 11.

4. Self-certification for showing completion of pro bono hours

Attorneys in California are required to complete minimum
continuing legal education (MCLE). Attorneys certify their
completion of their MCLE hours to the State Bar when their
period of compliance is up. Currently, they can self-certify
through the State Bar website at calbar.org. Attorneys are
advised that they should maintain their records of attendance at
approved continuing legal education programs in the event they
will be audited.

Similarly, in this bill, there is a requirement that the
applicant self-certify their completion of the 50 pro bono
hours. As with the MCLE requirement, the State Bar could make
it convenient for the applicant to report their completion of
the pro bono requirement during the application process. To
ensure the attorneys accurately report their MCLE hours, the
State Bar engages in audits of attorney MCLE hours. The author
offers the following amendment to make it clear that the State
Bar may create the form upon which the applicant can report
their pro-bono service.

Author's Amendment :
On page 2, following line 34, insert: "(h) The State Bar

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may choose to create the form upon which the applicant can
report completion of pro bono service."

The author offers the following amendment to require the State
Bar to randomly audit applicants to ensure their completion of
pro bono hours.

Author's Amendment :
On page 2, following new paragraph (h), insert: "(i) The
State Bar shall randomly audit applicants to ensure
completion of 50 hours of pro bono service."

5. Allowing time for those currently engaged in legal education
to satisfy the new pro bono service requirement.

Under the current provisions of this bill, any person who wishes
to apply to be a member of the California State Bar after
January 1, 2017 will need to have completed 50 hours of pro bono
service. As a matter of fairness, these applicants will
arguably not have ample time to complete 50 hours of pro bono
service. The author offers the following amendment to address
this concern.

Author's Amendment :
On page 2, following new paragraph (i), insert: "(j) This
section shall become operative on January 1, 2018."

This amendment gives applicants ample time to complete the 50
hours of pro bono service required by this bill.

Support : None Known

Opposition : None Known

HISTORY

Source : Author

Related Pending Legislation :

SB 1281 (Block, 2016) would require all law schools that are not
accredited by the American Bar Association (ABA) to post on

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their Internet Web sites specified information including, but
not limited to, bar passage data and tuition costs. SB 1281 is
currently in the Senate Judiciary Committee.

Prior Legislation :

SB 686 (Corbett, Chapter 474, Statutes of 2007) provides that
every lawyer authorized and privileged to practice law in
California is expected to make a contribution to provide
voluntary pro bono legal services to those who cannot afford the
help of a lawyer.

AB 590 (Feuer, Chapter 457, Statutes of 2009) enacted the
Sargent Shriver Civil Counsel Act and expressed the intent of
the Legislature to encourage the legal profession to make
further efforts to meet its professional responsibilities and
other obligations by providing pro bono legal services and
financial support of nonprofit legal organizations that provide
free legal services to underserved communities.

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