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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