BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Adam B. Schiff, Chairman
1999-2000 Regular Session
AB 1858 A
Assembly Member Romero B
As Amended June 26, 2000
Hearing Date: August 8, 2000 1
Business and Professions Code 8
GWW:cjt 5
8
SUBJECT
Immigration and Naturalization Services:
-Lawyer Advertising and Immigration Consultants-
DESCRIPTION
This bill would require that any advertisement by or on
behalf of a State Bar member published in the classified or
"yellow pages" section of a telephone or business
directory, which offers to provide legal services related
to immigration or naturalization services, shall include a
statement that the person is an active member of the State
Bar. If the advertisement solicits the employment of a law
firm or corporation employing more than one attorney, the
advertisement shall disclose that services related to
immigration or naturalization provided by the firm or
corporation shall be provided by an active State Bar member
or by a person under the member's active supervision. This
requirement would not apply to classified or "yellow pages"
listings of three lines or less, which state only the name,
address, and phone number of the listed entity.
This requirement would not apply to attorneys employed by
public agencies or by nonprofit entities registered with
the Secretary of State.
This bill would also increase the maximum civil penalty for
violation of the immigration consultants law from $10,000
to $100,000.
(This analysis reflects author's amendments to be offered
(more)
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in Committee.)
BACKGROUND
Despite the enactment of recent laws requiring the
registration and bonding of immigration consultants, the
immigrant community is still besieged with fraudulent
immigration consultants and their practices.
A Los Angeles Times article highlighted the problem:
"bogus consultants who prey on unsuspecting newcomers" by
falsely representing themselves as immigration attorneys,
in violation of state law. (Los Angeles Times, January 26,
2000.) For example, the article states, "Fraudulent
consultants often gain the confidence of illegal immigrants
by offering friendly services in their native tongue.
Consultants sometimes suggest that they have inside
connections with the INS or some other federal agency." In
one particularly egregious case cited in the article, a
"consultant" alternately represented himself as an attorney
and an INS official, even though he was neither.
CHANGES TO EXISTING LAW
1. Existing law regulates the practice of law in California
and provides that any person who advertises or holds
himself or herself out as practicing or entitled to
practice law and who is not an active member of the State
Bar is guilty of a misdemeanor. (Business and
Professions Code Section 6126. All references hereafter
are to this Code unless otherwise noted.)
Existing law regulates lawyer advertising and defines
"advertise" or "advertisement" as any communication
disseminated by television, radio or any print medium or
any communication disseminated by means of a mailing
directed generally to members of the public that solicits
employment of the member's legal services. (Section
6157.)
Existing law prohibits, under the general unfair business
practices statute, untrue or misleading advertising, and
provides that a violation is a misdemeanor punishable by
imprisonment and/or a fine not exceeding $2,500.
(Section 17500.)
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This bill would require that any advertisement by or on
behalf of a State Bar member published in the classified
or "yellow pages" section of a telephone or business
directory, which seeks professional employment for the
lawyer to provide legal services related to immigration
or naturalization services, shall include a statement
that the person is an active member of the State Bar. If
the advertisement solicits the employment of a law firm
or corporation employing more than one attorney, the
advertisement shall disclose that services related to
immigration or naturalization provided by the firm or
corporation shall be provided by an active State Bar
member or by a person under the member's active
supervision. A violation would be subject to
disciplinary action by the State Bar.
The bill would also require the disclosure to be in the
same language of the advertisement when another language
is used in the ad.
The requirement would not apply to attorneys employed by
public agencies or by nonprofit entities registered with
the Secretary of State.
2. Existing law regulates the practice of immigration
consultants. While licensed attorneys and those
authorized to represent individuals before the Board of
Immigration Appeals or the United States Immigration and
Naturalization Service (INS) are specifically permitted
to act as immigration consultants, any other person may
act as an "immigration consultant" to give nonlegal
assistance or advice on an immigration matter as long as
they meet the bonding requirement and other statutory
requirements. Existing law also prohibits certain acts
by an immigration consultant, such as making false or
misleading statements or baseless promises to a client,
or making a statement that the consultant has special
influence with the INS. A violation is punishable by a
civil penalty of up to $10, 000 per violation collectable
in a civil action brought by any injured person. A
violation is also punishable as a misdemeanor, by a fine
of between $2,000 and $10,000 and/or imprisonment for up
to one year. (Section 22440 et seq.)
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This bill would increase the maximum civil penalty to
$100,000. Like existing law, the penalty would be
recoverable by the injured party in a civil action.
COMMENT
1. Stated need for bill: disclosure of State Bar membership
According to the author's office, this bill is necessary
to stop the fraud being practiced upon immigrants and
refugees by dishonest predators who falsely represent
themselves as immigration attorneys or expert immigration
consultants. The author believes that, by requiring
telephone and business directory legal advertising to
include a statement that the advertiser is a licensed
member of the bar when the advertisement offers
immigration or naturalization services, it would be
easier for consumers to identify legitimate lawyers.
According to the sponsor, the LA District Attorney's
Office, some non-attorney immigration consultants have
fraudulently and brazenly advertised their services in a
manner suggesting that they are licensed attorneys or
offer legal services. This practice deceives
unsuspecting consumers.
In response to the problem, the bill would require
attorneys to indicate that they are active licensed
members of the bar in any telephone or business directory
advertisement offering the member's services relating to
immigration or naturalization. The sponsor asserts that
this requirement will enable consumers to distinguish
between those advertisers who are licensed attorneys and
those that are not, since non-attorneys would not and
could not lawfully make such a claim.
One opponent objects to this provision, stating that
since California bar membership is not a requirement to
practice immigration law before the INS or the federal
Immigration Board, the requirement is overlybroad and
should instead target the immigration consultant who is
not authorized to provide legal services in any manner.
SHOULD THE BILL ALSO REQUIRE AN IMMIGRATION CONSULTANT
WHO IS NOT LICENSED TO PRACTICE LAW BEFORE THE INS OR THE
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IMMIGRATION BOARD, TO MAKE THAT DISCLOSURE IN ANY OF HIS
OR HER TELEPHONE OR BUSINESS DIRECTORY ADVERTISEMENTS?
The current bill also fails to address the situation of
an out-of-state attorney who is not licensed to practice
in California, but is licensed to practice in the federal
courts and administrative agencies.
SHOULD THE DISCLOSURE PROVISION ALSO APPLY TO
ADVERTISEMENTS BY AN OUT-OF-STATE LAWYER WHO IS ADMITTED
TO PRACTICE BEFORE THE IMMIGRATION COURT?
If the above two amendments are adopted, the bill would
allow consumers to get a complete picture of all
immigration consultants advertising their services by
requiring them to say what they are and what they are
not.
The disclosure requirement would not apply to attorneys
employed by public agencies or by nonprofit entities
registered with the Secretary of State. According to the
sponsor, the exemption is appropriate because these
agencies and their attorneys are not a source of
fraudulent activity.
2. Stated need for increase in civil penalty to $100,000
maximum
The proposed increase in the civil penalty is necessary,
the author argues, to "offset the large amounts of money
that many consumers lose as a result of the unlawful
practice of law and to serve as a deterrence to those
defrauding consumers." According to the author,
immigrants often spend thousands of dollars, sometimes
their entire savings, attempting to obtain legal work
permits or other immigration documents with the help of
an immigration consultant. Information from the Los
Angeles District Attorney's Office indicates that the
costs of obtaining services from immigration consultants
can range from $600 to $25,000.
Proponents also assert that immigrants can lose more than
money if a consultant bungles the application. According
to the Los Angeles Times article, one immigrant paid a
consultant $2,500 to help him apply for permanent
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residency. Instead of filing a permanent residency
application, the consultant submitted an application for
political asylum without notifying the immigrant. The
immigrant knew he did not qualify for political asylum,
and the INS subsequently rejected the application. The
consultant appealed the ruling but failed to advise the
client of the hearing date. As a result, the INS ordered
the immigrant deported. Nor is the practice isolated to
the reported case in the Los Angeles Times. The Asian
Law Caucus, in support of AB 1858, writes that a number
of unsuspecting Hmong families have been bamboozled by
so-called immigration "specialists" who file meritless
asylum claims, resulting in deportation proceedings
against immigrants who thought they were obtaining a
legitimate means of remaining in the country.
Thus, proponents argue, increasing the maximum civil
penalty from $10,000 to $100,000 would provide greater
deterrence and more approximate the harm done to some
victims. The sponsor reports that in several
immigration fraud cases pursued by their office, the
"takings" have exceeded $100,000.
3. Pending related legislation
AB 2687 (Margett) would require notaries public that
provide immigration form data entry services to be bonded
as immigration consultants under the Business and
Professions Code. The bill was unanimously approved by
this Committee in June and was recently signed by the
Governor.
Support: Attorney General's Office; Asian Law Alliance;
Asian Law Caucus;
California Immigrant Welfare Collaborative; The
Citizenship Project;
El Colegio Popular; Maternal and Child Health
Access; Mexican
American Bar Association of Los Angeles County;
Southern California
Chinese Lawyers Association
Opposition: Joseph Giannini, Esq.
HISTORY
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Source: Los Angeles County District Attorney's Office
Related Pending Legislation: AB 2687 (Margett) Chapter 194,
Stats. of 2000
Prior Legislation: None Known
Prior Vote: Assembly Floor: 57 -16
Assembly Judiciary Committee: 10 - 3
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