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  ****