BILL ANALYSIS                                                                                                                                                                                                    






                 SENATE JUDICIARY COMMITTEE
                  John L. Burton, Chairman
                  1997-98 Regular Session


SB 1418                                                S
Senator Rosenthal                                      B
As Amended March 25, 1998
Hearing Date: March 31, 1998                           1
Business and Professions Code                          4
DBM:cjt                                                1
                                                       8

                           SUBJECT

     Self-Help Legal Services: Legal Document Assistants


                         DESCRIPTION  

SB 1418 would create a new category of legal technician --  
the legal document assistant.  It would specify the types  
of services which legal document assistants could provide  
and would enact penalties for legal document assistants who  
provide unauthorized services.  This bill would impose  
additional requirements for unlawful detainer assistants.   
The bill would sunset in three years.   

                          BACKGROUND  

Legal technicians are non-lawyers who perform law related  
tasks. Unlike paralegals, they do not work under the  
supervision of an attorney.  Legal technicians are  
sometimes referred to as independent paralegals.

California courts follow  People v. Landlords Professional  
Services  (1989) 215 Cal.App.3d 1599, in determining the  
proper role of a legal technician.  In  People v. Landlords  ,  
the California Court of Appeals found that an eviction  
service offered by a company of nonlawyers to assist  
landlords in the preparation, filing and resolution of  
unlawful detainer actions amounted to the unauthorized  
practice of law because the service's representative held  
himself out as "counselor," and because the service  
interviewed the client and provided specific legal advice.   
However, the court noted that it was not the practice of  









law as long as the service was merely clerical -- i.e.  
providing forms for clients, filling in the forms at  
clients' specific direction, and filing and serving them as  
directed by clients.  Similarly, giving a client a manual,  
even a detailed one containing specific advice, for the  
preparation of an eviction would not constitute the  
practice of law if the service did not personally advise  
the client with regard to his or her case.


                   CHANGES TO EXISTING LAW
  
  Existing law  requires that legal technicians who sell  
services related to unlawful detainer or who act as  
immigration consultants:  (1) restrict their activities to  
specified services that do not constitute the practice of  
law, (2) be registered with the clerk's office in the  
county in which they sell their services, and (3) post a  
bond (Business and Professions Code 6400 and 22440).  It  
also provides that any person holding himself or herself  
out as practicing or entitled to practice law, who is not  
an active member of the State Bar,  is guilty of a  
misdemeanor (Business and Professions Code Section 6125).

  This bill  would require all persons who sell self-help  
legal services to: 

(1) restrict their activities to specified services that  
include: (a) providing general published factual  
information written or approved by an attorney; (b) making  
published legal documents available to a person  
representing him or herself in a legal matter; (c)  
completing legal documents selected by the person and at  
the direction of the person in a ministerial manner; (d)  
filing and serving legal documents at the specific  
direction of the person.

(2) provide their customers with a written contract  
detailing the services to be performed, their cost, and  
explaining that legal document assistants and unlawful  
detainer assistants are not attorneys.  It would further  
require that this contract be stated in both English and in  
any language used to negotiate or advertise services.   

(3) register with the clerk's office in the county in which  
they sell self-help legal services and post a bond of  









$25,000.  The bill would provide that any person who sells  
self-help legal services beyond those specified in this  
bill is guilty of a misdemeanor and subject to a fine of  
not less than $1000 and not more than $2000.  It would  
further provide that any person who has been convicted of  
this or any other crime relating to deceptive business  
practices or fraud, or who has had a civil judgment entered  
against him or her arising out of a failure to properly  
perform his or her duties as an unlawful detainer or legal  
document assistant, may be denied registration or renewal  
of registration as a legal document assistant.  

  This bill  would sunset its terms in three years, (January  
1, 2002), unless a new statute deletes or extends that  
date.   


                               


                          COMMENT
  
1.    Stated need:  providing consumer protection for  
  persons using self-help legal services  

  According to the author, self-help legal clinics are  
  prevalent throughout the state.  Many are used by low  
  income persons who, because they cannot afford the  
  services of an attorney, must represent themselves.  The  
  intent of this bill is to codify  People v. Landlords  and  
  to provide for the accountability of persons who sell  
  self-help legal services.  By offering parameters for  
  self-help legal services and by offering other consumer  
  protections such as requiring that legal document  
  assistants and unlawful detainer assistants register with  
  their respective counties and post a bond, the author  
  believes that persons who choose to use self-help legal  
  services will be better protected than they are under  
  existing law.   

2.   Recent amendments address major concerns, some  
  opposition remains  

  While opponents note that recent amendments requested by  
  Judicial Council have significantly improved the bill,  
  they argue that the consumer protections it contains are  









  still not sufficient to justify the legitimacy it bestows  
  upon legal technicians.  

  Judicial Council is concerned that: (1) the bill does not  
  provide for appropriate regulatory oversight of persons  
  selling self-help legal services; (2) the bill does not  
  call for an evaluation of the consequences of codifying a  
  legal technician's right to sell self-help legal  
  services, nor does it provide an appropriation for such  
  an evaluation; and (3) the bill does not require that  
  legal document assistants or unlawful detainer assistants  
  receive appropriate training.   Further, Judicial Council  
  would like to continue working with the author to resolve  
  technical difficulties with the registration and renewal  
  of registration process proposed in the bill.  

  The author's office responds by pointing out that the  
  success or failure of the legal document and unlawful  
  detainer assistant programs will be monitored by the  
  numerous public interest law organizations which support  
  the bill.  Further, they point out that the three year  
  sunset provision contained in the bill offers the  
  legislature an opportunity to revisit the issue.  The  
  author's office has pledged to continue to work in good  
  faith to resolve the concerns raised by Judicial Council.  
   

  The Beverly Hills Bar Association requests that the bill  
  include an appropriation for the enforcement of  
  provisions in the bill which prohibit the unauthorized  
  practice of law.


Support: Western Center on Law and Poverty; California  
Rural Legal Assistance Foundation; Los Angeles Housing Law  
Project; Bet Tzedek Legal Services; The American Federation  
of State, County and Municipal Employees; California  
Apartment Association; California Association of  
Independent Paralegals


Opposition: Judicial Council; Beverly Hills Bar Association

                           HISTORY
  
Source: Author










Related Pending Legislation: None Known

Prior Legislation: SB 709 (Rosenthal) - Died in Committee


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