BILL ANALYSIS Ó
SB 1257
Page 1
Date of Hearing: June 28, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB
1257 (Block) - As Amended June 23, 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.
As originally drafted, this bill offered relatively few options
for law students to perform pro bono legal service and required
the pro bono legal service to be without pay. As amended on
June 23rd, this bill offers far more options for performing pro
bono legal service and allows such service to be paid, as long
as the client who receives the legal service does not pay the
student for the service. These provisions provide an answer to
the questions raised by the original form of the bill, including
how a pro bono legal service requirement would affect low-income
law students (who need paying jobs). Recent amendments also
exempt licensed attorneys seeking further legal education, and
those who are licensed in foreign countries or other states,
from the bill's requirements. This bill is supported by the
Conference of California Bar Associations, Monterey College of
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Law, the American Civil Liberties Union of California, 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
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 admission to practice law.
2)States that the purpose of the bill's pro bono legal service
requirement is to supplement the applicant's legal education
with practical legal work experience and expose the applicant
to the professional value of pro bono legal service for the
public good.
3)Requires all qualifying pro bono legal service shall be
performed and allows the pro bono legal service, or any
portion thereof, to be completed in any state or territory of
the United States, the District of Columbia, or any foreign
country, as long as in both cases it is under the supervision
of one of the following:
a) A member of a law school faculty, including adjunct
faculty, or an instructor employed by a law school.
b) A person with the appropriate licensing to represent the
client before the relevant judicial body or government
agency, which includes, but is not limited to, an active
licensed attorney in good standing.
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c) An active licensed attorney in good standing.
1)Defines "pro bono legal service" as work without compensation
from the client who receives the legal service that is
designed to benefit the public interest or persons who are
indigent or of modest means for one of the individuals,
organizations, or programs listed in subdivision (d) that is
for one of the following purposes:
a) To secure or promote access to justice, including, but
not limited to, the protection of civil rights, civil
liberties, or public rights.
b) To address the economic, health, and social needs of
persons who are indigent or of modest means.
c) To further the purpose of a charitable, civic,
community, governmental, or educational organization where
payment of the market rate for legal fees would
significantly deplete the organization's resources or would
otherwise be inappropriate.
1)Requires pro bono legal service to be performed with or for
any of the following:
a) A "legal aid organization," as defined by Section
6159.51, or a qualified legal services project or a
qualified support center, as defined in Section 6213.
b) A nonprofit organization.
c) A charitable, civic, community, governmental, or
educational organization.
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d) An externship, law school clinic or other placement
approved for credit hours by a law school, or law
school-sponsored project, in which the applicant is
assigned work that otherwise meets the criteria of this
section.
e) A law firm, including a solo practitioner, or other
legal services provider where the applicant is assigned
work that otherwise meets the criteria of this section.
f) A State Bar-certified lawyer referral and information
services panel that provides legal services to the indigent
or persons of modest means without charge or for less than
market rate.
g) An attorney incubator program or nonprofit law
corporation affiliated with a law school or bar association
that provides legal services to the indigent or persons of
modest means without charge or for less than market rate.
1)Provides that the provisions of the bill do not prohibit an
applicant from receiving compensation, including, but not
limited to, a salary, for performing pro bono legal service
that is paid by a person or entity other than the client who
receives the pro bono legal service.
2)Requires the 50 hours of pro bono legal service to be provided
after the commencement of the applicant's legal studies, and
prior to admission.
3)Prohibits an applicant from satisfying any part of the 50-hour
requirement by participating in any partisan political
activities.
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4)Exempts from the pro bono legal service requirement all of the
following:
a) An applicant who is already admitted to practice in any
state, territory, or foreign jurisdiction.
b) An applicant who has earned a J.D. or its equivalent in
a foreign jurisdiction and is qualified to practice without
a separate admission process in that jurisdiction.
c) An applicant qualifying for admission by completion of
an LL.M. degree program.
5)Requires each law school to publicly disclose, on its Internet
Web site through a link from the Internet Web site homepage of
the law school under "Pro Bono Legal Service Requirement for
Law Students," all of the following information:
a) A description of the requirements of this section.
b) Links to programs available to students at the school
and in the local community that provide opportunities for
pro bono legal service and allow students to comply with
the requirements of this section.
c) Times and dates when the programs are open or available
to students.
6)Requires the State Bar to publicly disclose on its Internet
Web site, with a link from the "Future Lawyers" or
"Admissions" Internet Web page of the State Bar under "Pro
Bono Legal Service Requirement for Law Students," all of the
following information:
a) A description of the pro bono legal service requirement.
b) A link to the information about pro bono legal service
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opportunities for each law school in the state that
provides its link to that information to the State.
7)Requires the State Bar to randomly audit the compliance
documentation applicants submit to document their compliance
with the pro bono legal service requirement but states that it
does not require the State Bar to audit or investigate any
service providers for which work was done by an applicant or
to evaluate the substance of any work that was done by an
applicant.
8)Makes the provisions of the bill apply to all applicants who
enter law school on or after 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
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.)
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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.)
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
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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
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
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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
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
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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
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.
Valuable Insight from Former TFARR Members. 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:
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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.
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.
Shortly before this bill was first scheduled to be heard in this
Committee, former members of the TFARR contacted the author and
the Committee to add their input about the content of the bill.
As a result of input from the former TFARR members, this bill is
far more flexible in its provisions and offers a plethora of
opportunities for law students to complete the 50 hours of pro
bono legal service required by the bill. At the same time,
recent amendments to the bill clarify that all pro bono legal
service, regardless of how and where it is performed, must
further one of several purposes that promote access to justice
and pro bono legal service to the public, the indigent, and
those of modest means. Specifically, the recent amendments
require that the legal service be performed for one of the
following purposes:
1) To secure or promote access to justice, including, but
not limited to, the protection of civil rights, civil
liberties, or public rights.
2) To address the economic, health, and social needs of
persons who are indigent or of modest means.
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3) To further the purpose of a charitable, civic,
community, governmental, or educational organization where
payment of the market rate for legal fees would
significantly deplete the organization's resources or would
otherwise be inappropriate.
As a result, the bill reasonably ensures that not only can
students readily provide opportunities to perform the 50 hours
of pro bono legal service, but that the service serves the
public, as well.
The Bill Does Not Exempt Low-Income Law Students from the Pro
Bono Legal Service Requirement, but Provides Opportunities to
Complete the Requirement That Allow Low-Income Students to be
Paid and Gain Work Experience. 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:
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 )
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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.
As originally in print, this was a significant issue. However,
as amended on June 23rd, the bill now provides not only a large
number of options for students to fulfill the pro bono legal
service requirement (including during the course of regular
coursework), but it also allows students to be paid for their
service, as long as they are not paid by the clients who receive
the benefit of their legal service. So if a student had a paid
job at a law firm, the student could fulfill the 50 hour pro
bono legal service requirement by working for indigent or modest
means clients who obtain free or reduced fee legal services from
the law firm. Because of these recent amendments, the pro bono
legal service requirement should be relatively easy for all
students to complete and no exemption from the requirement is
necessary. Furthermore, the pro bono legal service can provide
valuable experience and training for law students that also
makes students more employable upon graduation. All students,
regardless of income, should be able to take advantage of this
same valuable opportunity.
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. Fortunately,
the Legislature has renewed its commitment to funding access to
justice and legal aid by reauthorizing and making permanent the
Sargent Shriver Civil Counsel Act, which was scheduled to sunset
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in 2017.
Does the Legislature have the authority to mandate this
requirement as a condition of admission to practice law in
California? As a general matter, the question whether an
applicant should be admitted to the State Bar and thereby obtain
a license to practice law in California is governed by state
law. In California, the general requirements and standards for
admission to the State Bar are set forth both in statutory
provisions enacted by the Legislature (Bus. & Prof. Code, § 6060
et seq.) and in court rules that are promulgated by the Supreme
Court (see, e.g., Cal. Rules of Court, rule 9.30 [Rules on Law
Practice, Attorneys, and Judges]; see also Rules of State Bar,
rules 4.1 to 4.269 [Admissions and Educational Standards]).
Although both the Legislature and this court possess the
authority to establish rules regulating admission to the State
Bar, under the California Constitution the Supreme Court bears
the ultimate responsibility and authority for determining the
issue of admission. (See, e.g., Hustedt v. Workers' Comp.
Appeals Bd. (1981) 30 Cal.3d 329, 336-337 ["In California, the
power to regulate the practice of law, including the power to
admit and to discipline attorneys, has long been recognized to
be among the inherent powers of the article VI courts. Indeed,
every state in the United States recognizes that the power to
admit and to discipline attorneys rests in the judiciary." (fn.
omitted)]; In re Lavine (1935) 2 Cal.2d 324, 328."]. (In re
Garcia (2014) 58 Cal.4th 440, 451-452.) "An attorney is an
officer of the court and whether a person shall be admitted [or
disciplined] is a judicial, and not a legislative, question."
(In re Attorney Discipline System (1998) 19 Cal. 4th 582, 592.)
However, "it is generally conceded that the legislature may
prescribe reasonable rules and regulations for admission to the
bar which will be followed by the courts. The regulations so
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prescribed must ? be reasonable and shall not deprive the
judicial branch of its power to prescribe additional conditions
under which applicants shall be admitted, nor take from the
courts the right and duty of actually making orders admitting
them." (In re Garcia, supra, 58 Cal.4th at pp. 451-452.)
In the case of this bill, SB 1257 proposes to add one additional
requirement for admission to the bar: 50 hours of Pro Bono legal
service. The question of whether the bill violates article VI of
the California Constitution by interfering with or usurping the
role of the Supreme Court in licensing issues hinges upon
whether the pro bono requirement is reasonable and whether, in
the words of the Supreme Court itself in Garcia, it would
"deprive the judicial branch of its power to prescribe
additional conditions under which applicants shall be admitted,
nor take from the courts the right and duty of actually making
orders admitting them." Here, the Legislature would not be
dictating to the Supreme Court that applicants who complete pro
bono legal service must be admitted to practice law. The bill
is merely placing a reasonable requirement - related to the
worthy goals "to supplement the applicant's legal education with
practical legal work experience and expose the applicant to the
professional value of pro bono legal service for the public
good"- on law students "after the commencement of the
applicant's legal studies, and prior to admission."
In an abundance of caution and to avoid interfering with the
Supreme Court's plenary power over admission to the bar, the
author may want to amend the bill to make the requirements of
the bill applicable to prior to submitting an application for
admission, or to make the enactment of the requirements in the
bill "subject to approval by the Supreme Court as a new
condition of admission to the State Bar."
Clarifying Amendments. In order to clarify a number of issues,
the author proposes the following amendments:
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On Page 2, at line 15, strike out "adjunct" and insert:
"part-time"
On Page 2, at line 24, strike out "both of"
On Page 3, between lines 17 and 18, insert:
(3) "Attorney Incubator Program" means a postgraduate training
program that helps attorneys learn how to develop and sustain
law firms.
On Page 4, line 3: strike out: ", or non-profit law corporation"
On Page 5, lines 18-19, make the following changes:
(C) Times To the extent practicable, information about times
and dates when the programs are open or available to students
that has been provided to the law school by the pro bono legal
service program provider.
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
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legal services and support centers.
AB 1403 ((Assembly Judiciary Committee), Chapter 409, Statutes
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
Monterey College of Law
American Civil Liberties Union of California
Opposition
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None on file
Analysis Prepared by:Alison Merrilees / JUD. / (916)
319-2334