BILL ANALYSIS
SENATE RULES COMMITTEE SB 1418
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UNFINISHED BUSINESS
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Bill No: SB 1418
Author: Rosenthal (D)
Amended: 8/18/98
Vote: 21
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SENATE JUDICIARY COMMITTEE : 7-0, 3/31/98
AYES: Burton, Schiff, Leslie, Lockyer, O'Connell, Sher,
Wright
NOT VOTING: Calderon, Haynes
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SENATE FLOOR : 29-0, 4/23/98
AYES: Ayala, Brulte, Burton, Costa, Greene, Haynes,
Hughes, Johannessen, Johnston, Karnette, Kelley, Knight,
Kopp, Leslie, Lewis, Maddy, McPherson, Monteith,
Mountjoy, O'Connell, Peace, Polanco, Rainey, Rosenthal,
Schiff, Solis, Thompson, Vasconcellos, Wright
NOT VOTING: Alpert, Calderon, Craven, Dills, Hayden,
Hurtt, Johnson, Lockyer, Sher, Watson
ASSEMBLY FLOOR : 42-31, 8/21/98 - See last page for vote
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SUBJECT : Legal document assistants
SOURCE : Author
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DIGEST : This bill creates a new category of legal
technician -- the legal document assistant. It specifies
the types of services which legal document assistants could
provide and enacts penalties for legal document assistants
who provide unauthorized services. This bill imposes
additional requirements for unlawful detainer assistants.
The bill sunsets in three years.
Assembly Amendments :
1.Provide that the provisions of this bill shall constitute
a four-year pilot project.
2.Adds operative dates.
3.Prohibit legal document assistants after January 1, 2000
unless licensed in the county where they do business.
4.Provides mechanism for the Department of Consumer Affairs
to suspend the pilot project prior to January 1, 2003, as
specified.
ANALYSIS : 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. 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.
This bill creates a four-year pilot project, prohibiting a
legal document assistant (LDA) (i.e., defined as any person
who provides or assists in providing, for compensation)
from providing self-help service to the public unless the
LDA is registered in the county in which services are being
provided. Specifically, this bill:
1.Prohibits LDAs from providing any kind of advice,
explanation, opinion, or recommendation to a consumer
about legal rights, remedies, defenses, options,
selection of forms or strategies.
2.Defines self-help service, the only types of services
LDAs are authorized to provide, as:
(a)Completing legal documents in a ministerial manner,
by typing or otherwise, at the specific direction of
a person who is representing himself or herself in a
legal matter.
(b)Providing general published factual information that
has been written or approved by an attorney,
pertaining to legal procedures, rights, or
obligations to a person who is representing himself
or herself in a legal matter.
(c)Making published legal documents available to a
person who is representing himself or herself in a
legal matter.
(d)Filing and serving legal documents at the specific
direction of a person who is representing himself or
herself in a legal matter.
3.Provides that, if the application shows any of the
following, the county clerk shall return the application
and notify the applicant of the right to a review of the
denial by the Department of Consumer Affairs (DCA) to
determine if the applicant should be allowed to register
as an LDA:
(a)The applicant has been convicted of any felony, or of
a misdemeanor for the unauthorized practice of law.
(b)The applicant has been held liable in a civil action
for fraud, misrepresentation, or the use of an
unfair, unlawful, or deceptive business practice.
(c)The applicant has had a civil judgment entered
against him or her for negligent, reckless, or
willful failure to perform his or her duties as an
LDA.
(d)The applicant has had his or her LDA registration
revoked.
(e)The applicant has been convicted of a misdemeanor
violation of any of the requirements of this bill.
4.Requires an applicant for registration as an LDA to have
satisfied certain educational and practice criteria and
to post a $25,000 bond as a condition of being certified
for registration as an LDA.
5.Requires an LDA to enter into a written contract with
every client, and requires the contract to include, among
other things: that the LDA is not an attorney and that
registration with the county is not an endorsement by the
county of the quality of the LDA's services or
experience. The LDA is required to translate any written
contract into the language principally used in any
negotiations leading to the execution of the contract.
6.Gives any person injured by the unlawful act of an LDA
the right to file a complaint and seek redress in any
municipal or superior court for injunctive relief,
restitution, and damages. Attorney's fees shall be
awarded to a prevailing plaintiff.
7.Authorizes DCA to suspend operation of the LDA
registration program prior to the January 1, 2003, sunset
date upon a finding that, at any time after December 31,
2000, fewer than 200 LDAs have registered statewide.
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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: Yes
SUPPORT : (Verified 8/24/98)
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
City of Los Angeles
California Bankers Association
OPPOSITION : (Verified 8/24/98)
Judicial Council
Beverly Hills Bar Association
ARGUMENTS IN SUPPORT : 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.
ARGUMENTS IN OPPOSITION : The Department of Consumer
Affairs writes that, "the department recognizes that there
are problems with some unscrupulous LDAs who fraudulently
perform services for consumers in the preparation of legal
documents. The magnitude of the problem in the
marketplace, however, is unknown. Over and above the
unknown dimensions of the problem, the department contends
that this bill may actually work to disserve consumers who
would be falsely led to believe that government at the
state or local level will come to the aid of the consumers
in the event of some wrong doing. Simply registering LDAs
with county clerks provides no enforcement mechanism to
remedy the misconduct of LDAs, thereby creating the
appearance, but not the reality, of government oversight
and control.
If SB 1418 is enacted, the department believes that the
unknown number of individuals acting as LDAs (perhaps as
many as 2000) would not voluntarily register with the
county clerk. The department's belief is based on the
enactment of AB 1573 (Burton) in 1993 which provided for
the registration of individuals acting as assistants in the
preparation of responses to unlawful detainer actions.
While the Legislature and the Governor were correct in
attempting to remedy the problems with Unlawful Detainer
Assistants (UDAs), five years of experience with this legal
mandate has revealed that a mere 19 individuals of the
several hundreds performing this work in California, have
voluntarily complied with the registration requirement for
UDAs. There is little reason to believe that a LDA
registration requirement would have a greater rate of
compliance than that achieved by the UDA registration
requirement.
"SB 1418 fails to provide any enforcement for the LDA
registration program. The department believes that without
enforcement provisions, compliance with the registration
requirement will be unlikely. As with the UDAs, the LDAs
will ignore a registration program that is unenforceable.
The department is also concerned that SB 1418 will
encourage the unauthorized practice of law by these LDAs.
due to the lack of enforcement, SB 1418 will not prevent
those LDAs who do register from continuing to practice law
without a license. In fact, a government-issued
registration will mislead unsuspecting consumers, many of
whom are poor, uneducated, elderly, or non-English
speaking. These individuals will not know that this
registration does not authorize LDAs to practice law. They
will simply equate governmental registration, even at the
county level, with government sanction of these LDAs.
These vulnerable consumers will place their trust in these
individuals and expect to get competent legal services.
ASSEMBLY FLOOR :
AYES: Alquist, Aroner, Baca, Bowen, Brown, Bustamante,
Cardenas, Cardoza, Cedillo, Davis, Ducheny, Escutia,
Figueroa, Floyd, Gallegos, Havice, Hertzberg, Honda,
Keeley, Knox, Kuehl, Lempert, Mazzoni, Migden, Murray,
Napolitano, Ortiz, Pacheco, Papan, Prenter, Scott,
Shelley, Strom-Martin, Sweeney, Thomson, Torlakson,
Vincent, Washington, Wayne, Wildman, Wright, Villaraigosa
NOES: Ackerman, Alby, Ashburn, Battin, Baugh, Bordonaro,
Bowler, Brewer, Campbell, Cunneen, Firestone, Frusetta,
Goldsmith, Granlund, House, Kaloogian, Leach, Leonard,
Margett, McClintock, Miller, Morrissey, Morrow, Olberg,
Oller, Poochigian, Pringle, Richter, Runner, Thompson,
Woods
NOT VOTING: Aguiar, Baldwin, Kuykendall, Machado,
Martinez, Perata, Takasugi
RJG:sl 8/24/98 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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