BILL ANALYSIS SENATE RULES COMMITTEE SB 1418 Office of Senate Floor Analyses 1020 N Street, Suite 524 (916) 445-6614 Fax: (916) 327-4478 . UNFINISHED BUSINESS . Bill No: SB 1418 Author: Rosenthal (D) Amended: 8/18/98 Vote: 21 . 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 . SUBJECT : Legal document assistants SOURCE : Author . 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 **** END ****