BILL ANALYSIS Ó
SB 1257
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Date of Hearing: June 8, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
1257 (Block) - As Amended May 31, 2016
As Proposed to be Amended
SENATE VOTE: 26-9
SUBJECT: STATE BAR: ADMISSION: LICENSE: PRO BONO SERVICE
REQUIREMENT
KEY ISSUE: SHOULD APPLICANTS FOR LICENSURE AS ATTORNEYS BY THE
STATE BAR BE REQUIRED TO PERFORM AT LEAST 50 HOURS OF PRO BONO
LEGAL SERVICE PRIOR TO FILING AN APPLICATION FOR ADMISSION TO
THE STATE BAR?
SYNOPSIS
This well-intentioned bill seeks to address two problems in the
justice system: the alarming shortage of legal aid for the
indigent and those with limited means, and the need for future
lawyers to have more practical experience prior to becoming
licensed to practice law. As this Committee has frequently
observed with alarm, legal aid organizations have been
significantly crippled by the decimation of funding in recent
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years. While the state has long suffered from a wide "justice
gap" between the legal needs of poor people and the resources
available to address those needs, conditions have deteriorated
markedly since 2008, the depths of the last recession, and have
not yet recovered. At the same time, there is a consensus of
opinion that prospective lawyers, as well as their future
clients, would benefit from more practical legal training under
the supervision of licensed attorneys prior to becoming licensed
themselves.
This bill seeks to address both of these problems to some extent
by requiring applicants for licensure as attorneys by the State
Bar of California to perform at least 50 hours of pro bono legal
service prior to filing an application for admission to the
State Bar. The requirements of this bill are somewhat similar
to a recent proposal for a pre-admission competency training
program by the State Bar that was approved more than three years
ago, but never implemented. It is also similar to a rule adopted
recently by the New York State Court of Appeals, requiring
applicants for admission to the New York State bar to perform 50
hours of pro bono services, on which this legislation appears to
be modeled.
This bill raises a number of questions, including how a pro bono
legal service requirement would affect low-income law students
(who need paying jobs) and whether attorneys who are licensed in
foreign countries or other states, should be exempted from its
requirements, which the author may want to consider as the bill
moves forward. In order to clarify several issues, the author
has agreed to accept several minor clarifying amendments that
are reflected in this analysis. This bill is supported by the
Conference of California Bar Associations and has no opposition
on file.
SUMMARY: Requires any person who applies to become a licensed
California attorney to complete at least 50 hours of pro bono
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service prior to filing an application for admission with the
State Bar of California. Specifically, this bill:
1)Requires an applicant for admission and a license to practice
law to complete at least 50 hours of pro bono legal service
after the commencement of the applicant's legal studies and
prior to filing an application for admission and a license to
practice law.
2)Defines "pro bono legal service" as work without compensation
except for costs in the provision of legal service to any of
the following:
a) A legal aid organization.
b) A nonprofit group or organization seeking to secure or
promote access to justice, including, but not limited to,
the protection of civil rights, civil liberties, or public
rights.
c) A charitable, civic, community, governmental, or
educational organization in matters designed primarily to
address the economic, health, and social needs of persons
who are indigent or of limited means.
1)Allows pro bono legal service to be completed in any state or
territory of the United States, the District of Columbia, or
any foreign country.
2)Requires the pro bono legal service to be supervised by an
active licensed attorney in good standing or an active judge.
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3)Provides that no applicant may satisfy any part of the 50-hour
requirement by participating in any partisan political
activities.
4)Requires, upon completion of the pro bono legal service
requirement, an applicant shall complete and submit a form to
the State Bar that is signed by the applicant and supervising
attorney or active judge that describes the nature and dates
of pro bono service and the number of hours completed.
5)Requires the State Bar to adopt rules for the submission to,
and retention by, the Bar of the certification forms.
6)States that the purpose of the pro bono legal service
requirement is to encourage and facilitate pro bono legal
service and supplement the applicant's legal education with
practical legal work experience.
7)Allows the State Bar to create the form upon which the
applicant can report completion of pro bono legal service.
8)Requires the State Bar to randomly audit applicants to ensure
completion of 50 hours of pro bono legal service.
9)Makes the bill operative on January 1, 2018.
EXISTING LAW:
1)Provides that the State Bar's highest priority is protection
of the public, and, whenever the protection of the public is
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inconsistent with other interests sought to be promoted, the
protection of the public shall be paramount. (Bus. & Prof.
Code Sec. 6001.1. All further statutory references are to the
Business & Professions Code, unless otherwise indicated.)
2)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.)
3)Specifies 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. (Section
6060.)
4)Requires every contract with the state for legal services that
exceeds fifty thousand dollars ($50,000) to include a
certification by the contracting law firm that the firm agrees
to make a good faith effort to provide, during the duration of
the contract, a minimum number of hours of pro bono legal
services, or an equivalent amount of financial contributions
to qualified legal services projects and support centers.
(Section 6072 (a).)
5)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 and allows a lawyer to
fulfill his or her pro bono goals in part by providing
financial support to organizations providing free legal
services to persons of limited means equal to, at minimum, the
approximate value of the hours of pro bono legal service that
he or she would otherwise have provided. (Section 6073.)
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FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: As this Committee has frequently observed with alarm,
legal aid organizations have been significantly crippled by the
decimation of funding in recent years. While the state has long
suffered from a wide "justice gap" between the legal needs of
poor people and the resources available to address those needs,
conditions have deteriorated markedly since 2008, the depths of
the last recession, and have not yet recovered. As a result,
millions of people in California and across the nation now
appear in court every year without legal representation - a
trend that began in the 1990s after federal limits were imposed
on legal aid programs, and one that has worsened with the
current economic recession. As these unrepresented parties
attempt to navigate our civil justice system they encounter an
open secret known to every judge and lawyer: even if the law is
on your side, if you don't have a lawyer you may have no rights
at all. Even greater numbers of people may simply be forced to
give up their rights without attempting to represent themselves,
knowing the odds are hopeless.
Over 45 years ago the U.S. Supreme court in Gideon v. Wainwright
(1963) 372 U.S. 335 recognized the "obvious truth" that any
person hauled into court who is too poor to hire a lawyer cannot
be assured a fair trial unless legal counsel is provided. Of
course, it's not that judges favor lawyers; it's that in our
adversarial system of justice, judges largely rely on the
parties to present the case. Not surprisingly, studies show
that unrepresented parties are likely to lose - even if their
case is meritorious, and particularly if their opponent is
represented by a lawyer.
In recognition of the need for indigent civil litigants in
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California to be represented by legal counsel, the State of
California enacted the Sargent Shriver Civil Counsel Act in 2009
(AB 590 (Feuer), Chapter 457, Statutes of 2009) to provide legal
representation to low-income parties in civil matters involving
critical issues affecting basic human needs. The Act created
seven pilot projects operated by legal services nonprofit
corporations working in collaboration with local courts and
other legal services providers in the community to provide legal
representation to low-income Californians at or below 200
percent of the federal poverty level. The purpose of these
services is to ensure that unrepresented parties in the proposed
case types have meaningful access to justice; guard against the
involuntary waiver of rights, or the disposition of cases by
default, in the selected legal areas; and encourage the fair and
expeditious resolution of disputes, consistent with principles
of judicial neutrality.
The Shriver pilot projects started in fiscal year 2011-2012 and
were initially authorized for a three-year period, subject to
renewal. All pilots and funding will terminate after six years
(in 2017) unless the Legislature extends the statutory authority
for the program this year. Total available funding for all
projects is $9.5 million per year, funded by a special 10 dollar
supplemental filing fee on certain post-judgment motions.
This bill seeks to address the problem of access to justice and
legal services by requiring, as a prerequisite to licensure by
the State Bar, law students to complete at least 50 hours of pro
bono legal service after the commencement of the applicant's
legal studies, and prior to filing an application for admission
and a license to practice law. However, the type of practical
legal work that meets the definition of "pro bono legal service"
under the bill is not strictly limited to legal work for the
indigent. Work for "a legal aid organization as defined by
Section 6159.51" and work for a "a charitable, civic, community,
governmental, or educational organization in matters designed
primarily to address the economic, health, and social needs of
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persons who are indigent or of limited means," both of which are
included in the bill's definition of "pro bono legal service,"
seem to meet the criteria (with the exception of allowing work
that is not primarily designed for those purposes). The bill
also includes the following within its definition of pro bono
legal service: work for a "nonprofit group or organization
seeking to secure or promote access to justice, including, but
not limited to, the protection of civil rights, civil liberties,
or public rights." While this work would not exclusively
benefit the indigent or those of limited means, it arguable
would benefit the public as a whole.
Pending (and Apparently Stalled) Efforts by the California State
Bar to Adopt Similar Rules. More than four years ago, in
February, 2012, the Board of Trustees of the State Bar approved
the appointment of the Task Force on Admissions Regulation
Reform (Task Force, or TFARR) to examine whether the State Bar
should develop a regulatory requirement for a pre-admission
competency training program and if so, propose such a program to
the Supreme Court. The Task Force held eight public hearings in
the State Bar's Los Angeles and San Francisco offices where it
heard testimony from practitioners, legal academics, judges,
clients, other state bar associations and members of the public.
The Task Force also considered an extensive body of research
and literature on the topic of law practice competency skills
training for new lawyers.
On June 11, 2013 the Task Force received and referred the Phase
I Final Report with three competency training recommendations,
including a requirement for 50 hours of pro bono legal service
prior to admission, to the Board Committee on Regulation,
Admissions and Discipline Oversight with a recommendation to
send the final report out for public comment. In July of 2013,
the committee authorized 45 days of public comment, during which
it received 30 public comments. In October of 2013, the Board
of Trustees adopted the recommendation and authorized the
creation of a special committee to devise an implementation plan
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for the proposals. However, the 50 hour pro bono requirement
has yet to be implemented by the State Bar.
Similar Efforts in Other States. On September 14, 2012, the New
York State Court of Appeals adopted a new rule requiring
applicants for admission to the New York State bar to perform 50
hours of pro bono services. Because of the close similarity in
language, the New York rule appears to be the model for this
legislation.
Questions Raised by This Well-Intentioned Bill. Is this a
subject more appropriately addressed by the State Bar? This
bill appears to be motivated, at least to some extent, by
frustration with the State Bar's failure to enact a new
requirement for applicants for licensure to perform pro bono
legal service. According to the author:
On October 12, 2013, the State Bar's Board of Trustees adopted
the Phase I Final Report of the Task Force on Admissions
Regulations Reform (TFARR). One of the three proposed
competency training proposals was a 50 hour pro bono
component. The report describes the benefits to bar applicants
and the profession if the program were enacted. However to
date, the 50 hour pro bono requirement has yet to be
implemented. This bill will insure that this important program
is enacted and becomes a requirement in order to practice law
in this state.
The TFARR sought to address, or at least consider, more issues
that this bill does. For example, the final report from TFARR
acknowledged several issues and alternatives that arguably could
or should be addressed by a competency training proposal which
are not addressed by this bill.
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The California Bar could implement a clinical experience
requirement effective today without the vast majority of
law schools in California having to add any new or expanded
clinical courses, any new positions in existing clinical
courses, or any additional faculty in order for their
students to qualify for admission because 84% of law
schools either already have or are easily capable of
providing the course capacity to comply with a requirement
that each bar applicant have a clinical experience.
It may be appropriate to allow an alternative track to
satisfy the pre-admission competency training requirement,
as allowed by TFARR, allowing an applicant to earn credit
equivalent hours outside of law school in a Bar-approved
apprenticeship, externship, or clerkship.
It may be appropriate to consider whether a competency
training requirement should apply to foreign students and
attorneys licensed in other states, including those in LLM
programs in California, or just new attorneys who seek
admission to practice in California.
Regardless of the merit of the above issues and considerations,
the lack of action on behalf of the State Bar to implement any
TFARR recommendations leads some, including the bill's author
apparently, to believe that legislative action is appropriate.
Therefore, the author may wish to consider some of the questions
that were left unanswered by the TFARR as this bill moves
forward.
How would the requirement for pro bono legal service to be
"without compensation" affect low-income students? The TFARR
acknowledged the issue of how the practical work requirements
contemplated by the Bar would affect students already struggling
with debt:
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An issue raised by many witnesses who appeared before the
Task Force as well as by many Task Force Members is the
financial impact of any new competency training
requirement. Many recent law graduates face staggering
levels of debt . . . and as a result, mandating that these
graduates bear the burden of paying additional monies to
fulfill new competency training requirements is a matter of
great concern. Of all the concerns expressed about whether
to add any new requirements, we find this one to be the
weightiest, especially given the challenges that so many
new admittees face today in finding employment.
( http://www.calbar.ca.gov/portals/0/documents/bog/bot_ExecDi
r/ADA%20Version_STATE_BAR_TASK_FORCE_REPORT_%28FINAL_AS_APPR
OVED_6_11_13%29_062413.pdf )
For some students, especially those who need paying jobs in
order to attend law school, the requirement to work 50 hours
"without compensation" could constitute a financial hardship.
Therefore, as the bill moves forward, the author may wish to
consider whether it would be reasonable to consider some or all
work done by low-income students that would otherwise qualify as
bono legal service, could be for pay, rather than "without
compensation."
Will this pro bono legal service requirement become a substitute
for state-funded legal aid, even though legal advice from law
students is not equivalent to (and should not be a substitute
for) legal advice and representation by legal counsel? To some
extent, this bill is motivated by an admirable desire to match
the need of the indigent and low-income for legal services with
the need of law students for practical experience. It would
provide legal assistance to the poor while also providing
practical experience to law students, which would seem to be a
win for both low-income individuals and law students. The
California Conference of Bar Associations writes the following
in support of the bill:
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The need for affordable legal services in California is
dire. Eight out of ten people living below the poverty
line, and six out of ten middle-class litigants, have no
lawyer in civil matters. As noted in the 2015 report of
the State Bar of California's Civil Justice Strategies Task
Force, "Despite the existence of a diverse, statewide
network of non-profit legal services organizations,
millions of low and moderate income Californians are unable
to access affordable legal assistance when they need it. .
. A lack of adequate legal assistance can have dire
consequences, including a loss of income, housing, or
educational opportunities; family instability; damage to
physical or mental health; or verbal or physical violence
or threats of violence."
For this reason, the CCBA in recent years has endorsed
implementation of a statewide "Civil Gideon" program
providing free counsel by right to indigent litigants in
civil matters, as well as a mandatory pro bono requirement
for the State's attorneys. SB 1257, with its requirement
that law students provide pro bono legal services under the
direction of experienced attorneys to legal services
organizations, nonprofit organizations dedicated to the
protection of civil rights, civil liberties, or public
rights, and other organizations dedicated to addressing the
economic, health, and social needs of persons who are
indigent or of limited means, takes a small but important
step towards achieving these essential goals.
While it is a worthy goal to match the needs of law students for
practical legal experience with the need of the low income for
legal representation, the services of law students are not
equivalent to those of a licensed and experienced attorney and
should not be considered a reasonable substitute. At the very
least, the Legislature should renew its commitment to funding
access to justice and legal aid by reauthorizing the Sargent
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Shriver Civil Counsel Act, which is scheduled to sunset in 2017
unless the Legislature extends the statutory authority for the
self-funded program this year.
Minor Clarifying Amendments. In order to clarify a number of
issues, the author proposes the following amendments:
1.To clarify when the pro bono legal service must be completed,
on page 2, at line 7, strike out "filing an application" and
insert the following: admission
2.To broaden the purpose of the pro bono service requirement
beyond just work experience, as now provided by the bill, to
include a public service component, on page 2, line 8, after
"to" insert the following: encourage and facilitate pro bono
legal service and
3.To allow an applicant's pro bono service to be supervised by
an active judge, consistent with other provisions in the bill,
on page 2, at line 11, insert the following after "standing"
insert the following: , or an active judge
PRIOR SIMILAR LEGISLATION: AB 2684 ((Assembly Judiciary
Committee), Chapter 758, Statutes of 2012) provides that court
interpreter fees may also be recovered when the court has
authorized a court interpreter for an indigent person who is
represented by pro bono attorney and allows that the
certification of pro bono legal services for a legal services
contract with the state exceeding $50,000 to be fulfilled by a
certification to make either a good faith effort to provide the
specified minimum number of hours of pro bono legal services or
an equivalent amount of financial contributions to qualified
legal services and support centers.
AB 1403 ((Assembly Judiciary Committee), Chapter 409, Statutes
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of 2011) allows indigent parties to recover the cost of court
interpreters when they are the prevailing party and are
represented without charge by a qualified nonprofit legal
services organization.
AB 590 ((Feuer), Chapter 457, Statutes of 2009) creates a fully
self-supported pilot project, the Sargent Shriver Civil Counsel
Act, for the appointment of legal representation for
unrepresented low-income parties in civil matters involving
critical issues, such as domestic violence, child custody and
elder abuse.
REGISTERED SUPPORT / OPPOSITION:
Support
Conference of California Bar Associations
Opposition
None on file
Analysis Prepared by:Alison Merrilees / JUD. / (916)
319-2334
SB 1257
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