BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | SB 1257| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- VETO Bill No: SB 1257 Author: Block (D) Amended: 6/30/16 Vote: 21 SENATE JUDICIARY COMMITTEE: 6-1, 4/26/16 AYES: Jackson, Moorlach, Hertzberg, Leno, Monning, Wieckowski NOES: Anderson SENATE FLOOR: 26-9, 5/9/16 AYES: Allen, Anderson, Block, De León, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Pan, Pavley, Roth, Wieckowski, Wolk NOES: Berryhill, Cannella, Fuller, Huff, Morrell, Nguyen, Nielsen, Stone, Vidak NO VOTE RECORDED: Bates, Beall, Gaines, Galgiani, Runner SENATE FLOOR: 26-12, 8/15/16 AYES: Allen, Beall, Block, De León, Galgiani, Glazer, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Pan, Pavley, Roth, Wieckowski, Wolk NOES: Anderson, Bates, Cannella, Fuller, Gaines, Huff, Moorlach, Morrell, Nguyen, Nielsen, Stone, Vidak NO VOTE RECORDED: Berryhill ASSEMBLY FLOOR: 42-31, 8/4/16 - See last page for vote SUBJECT: State Bar: admission: license: pro bono service requirement SOURCE: Author SB 1257 Page 2 DIGEST: This bill, to achieve greater access to justice for indigent unrepresented Californians, requires those who apply to become licensed California attorneys, with certain exceptions, to complete at least 50 hours of pro bono legal service, as defined, prior to admission with the State Bar of California. Assembly Amendments clarify who is eligible to supervise the pro bono legal service, the definition of "pro bono legal service," what qualifies as pro bono legal service, and the process for certifying completion of the hours. The amendments exempt certain applicants from the pro bono legal services requirement and add disclosure requirements for law schools and the State Bar related to the pro bono legal service requirement. The amendments add that an applicant may receive compensation 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. The amendments add definition of "modest means" and "attorney incubator programs." The amendments add that the new pro bono legal services requirement applies to applicants that enter law school on or after January 1, 2018. The amendments add that the purpose of the service requirement is also to expose the applicant to the professional value of pro bono legal service for the public good. The amendments also make clarifying nonsubstantive changes. ANALYSIS: 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. 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. SB 1257 Page 3 3) 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. 4) 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. 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, as defined, prior to admission with the State Bar of California. 2) 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 following purposes: to secure or promote access to justice, including, but not limited to, the protection of civil rights, civil liberties, or public rights; to address the economic, health, and social needs of persons who are indigent or of modest means; or 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) Defines "modest means" as low income, very low income, or extremely low income under the official state income limits established by the Department of Housing and Community Development under Section 50093 of the Health and Safety Code or under comparable official state income limits in another United States jurisdiction. SB 1257 Page 4 2) Defines "attorney incubator program" as a postgraduate training program that teaches attorneys how to form, develop, and sustain law firms. 3) Provides that all qualifying pro bono legal services shall be performed under the supervision of: a member of a law school faculty, including part-time faculty, or an instructor employed by a law school; 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; or an active licensed attorney in good standing. 1) Provides that: pro bono legal service may be completed in any state or territory of the United States, the District of Columbia, or any foreign country; no applicant may satisfy any part of the 50-hour requirement by participating in any partisan political activities; pro bono legal service shall be provided after the commencement of the applicant's legal studies, and prior to admission; an applicant may receive compensation 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; and pro bono legal service requirements do not apply to applicants that are already admitted to practice law, who have earned a J.D. or its equivalent in a foreign jurisdiction and are qualified to practice without a separate admission process in that jurisdiction, or qualify for admission by completion of an LL.M. degree program. 1) Requires that pro bono legal service be performed with any of the following: SB 1257 Page 5 a legal aid organization as defined by Bus. & Prof. Code section 6159.51 or a qualified legal services project or a qualified support center as defined in Bus. & Prof. Code section 6213; a nonprofit organization; a charitable, civic, community, governmental, or educational organization; 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; 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; 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; or 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) Requires, upon completion of the pro bono legal service requirement, an applicant shall complete a form describing the nature and dates of pro bono legal service and the number of hours completed and submit the form to the State Bar, as specified. 2) Allows the State Bar to create the form upon which the applicant can report completion of pro bono legal service, requires the State Bar to adopt rules for its retention of the certification forms, and requires the state bar to randomly audit the compliance documentation applicants submit to ensure their completion of pro bono hours. 3) Requires law schools and the State Bar to make public disclosures related to the pro bono legal service requirements, as specified. SB 1257 Page 6 4) States that the purpose of the 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. 5) Specifies the requirements of this bill apply to all applicants who enter law school on or after January 1, 2018. 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. 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, the United States mainly relies upon limited legal services and pro bono programs to provide indigent litigants 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. In recent years, there has been a growing movement, 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 SB 1257 Page 7 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 requires any person who applies to become a licensed California attorney to complete at least 50 hours of pro bono service, as specified, prior to admission with the State Bar of California. Comments 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 Admissions Regulations Reform (TFARR). One of the three proposed competency training proposals was a 50-hour pro bono component. Related/Prior Legislation SB 1281 (Block, Chapter 87, Statutes of 2016) required law schools not accredited by the American Bar Association to post SB 1257 Page 8 information on their internet Web sites, including bar passage data, tuition, fees, financial aid, admissions data, employment outcomes for graduates, conditional scholarships, enrollment data, faculty information, average class size for required courses, and the number of clinical offerings. 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. SB 686 (Corbett, Chapter 474, Statutes of 2007) provided 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. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified8/5/16) ACLU Monterey College of Law & San Luis Obispo College of Law Conference of California Bar Associations OPPOSITION: (Verified8/5/16) None received ARGUMENTS IN SUPPORT: In support, the American Civil Liberties Union of California (ACLU) writes that this bill will "help address the large and growing justice gap by promoting pro bono service by new applicants seeking admission to practice law in SB 1257 Page 9 California." The ACLU notes that "California meets only a fraction of the legal needs of the poor - turning away far more potential clients than are served by existing resources, even taking into account the strict eligibility requirements for legal aid and the few types of legal matters for which services are provided. While more must be done to fund nonprofit legal aid groups, pro bono services can play an important part in addressing the unmet need. We believe pro bon o services for the poor are appropriately asked of those who are privileged to practice law in California [.]" GOVERNOR'S VETO MESSAGE: I am returning Senate Bill 1257 without my signature. This bill requires an applicant for membership in the State Bar to complete at least fifty hours of supervised pro bono legal service. It also requires that a practicing lawyer or law professor supervise the student. I certainly support law students and lawyers providing pro bono legal services. Some law schools already promote volunteerism and pro bono service in various ways and many employers also require a certain amount of pro bono hours for associates and clerks. While I commend the author for his desire to further these efforts, I don't believe a state mandate can be justified. Law students in California are now contending with skyrocketing costs-often more than $200,000 for tuition and room and board-and many struggle to find employment once they are admitted to the Bar. In this context, I believe it would be unfair to burden students with the requirements set forth in this bill. Instead, we should focus on lowering the cost of legal SB 1257 Page 10 education and devising alternative and less expensive ways to qualify for the Bar Exam. By doing so, we could actually expand the opportunity to serve the public interest. ASSEMBLY FLOOR: 42-31, 8/4/16 AYES: Alejo, Arambula, Atkins, Bloom, Bonilla, Bonta, Brown, Burke, Calderon, Chau, Chiu, Chu, Cooper, Dodd, Eduardo Garcia, Gipson, Gomez, Gordon, Gray, Holden, Irwin, Jones-Sawyer, Kim, Levine, Lopez, Low, McCarty, Medina, Mullin, Nazarian, O'Donnell, Quirk, Ridley-Thomas, Rodriguez, Santiago, Mark Stone, Thurmond, Ting, Weber, Williams, Wood, Rendon NOES: Achadjian, Travis Allen, Baker, Bigelow, Brough, Campos, Chang, Dababneh, Dahle, Beth Gaines, Gallagher, Cristina Garcia, Gatto, Gonzalez, Grove, Hadley, Harper, Jones, Lackey, Linder, Maienschein, Mathis, Melendez, Obernolte, Olsen, Patterson, Salas, Steinorth, Wagner, Waldron, Wilk NO VOTE RECORDED: Chávez, Cooley, Daly, Eggman, Frazier, Roger Hernández, Mayes Prepared by: Margie Estrada / JUD. / (916) 651-4113 8/30/16 16:00:43 **** END ****