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 **************