BILL NUMBER: AB 590 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 12, 2009
INTRODUCED BY Assembly Member Feuer
FEBRUARY 25, 2009
An act to add Article 9.6 (commencing with Section 6159.5) to
Chapter 4 of Division 3 of the Business and Professions Code,
and to amend Section 70626 of, and to add Chapter 2.1 (commencing
with Section 68650) to Title 8 of, the Government Code,
relating to the practice of law.
LEGISLATIVE COUNSEL'S DIGEST
AB 590, as amended, Feuer. Legal aid.
Existing
(1) Existing law, the State Bar
Act, provides for the licensure and regulation of attorneys by the
State Bar of California, a public corporation. Existing law provides
that it is the duty of an attorney to, among other things, never
reject, for any consideration personal to himself or herself, the
cause of the defenseless or oppressed. Existing law provides that a
lawyer may fulfill his or her ethical commitment to provide pro bono
services, in part, by providing financial support to organizations
providing free legal services to persons of limited means.
This bill would state the intent of the Legislature to
expand the availability of legal counsel in critical civil matters
through locally controlled pilot programs designed to test and
evaluate new methods for the fair and cost-efficient resolution of
legal disputes, and the comprehensive enforcement of vital legal
rights, with respect to basic human needs. The bill would state the
additional intent of the Legislature to encourage the legal
profession to make further efforts to meet its professional
responsibilities and other obligations by providing pro bono legal
services and financial support of nonprofit legal organizations that
provide free legal services to underserved communities.
This bill would prohibit a person or organization that is not a
specified type of legal aid organization, as defined, from using the
term "legal aid," or any confusingly similar name in any firm name,
trade name, fictitious business name, or other designation, or on any
advertisement, letterhead, business card, or sign. The bill
additionally would prohibit any person from charging a fee for any
legal form or other document created by a legal aid organization, a
court, or other public agency that is available to the public without
charge, or from charging a fee to assist in the provision of
self-help services that are provided without charge by a court or
legal aid organization. The bill would subject a person or
organization that violates these prohibitions to specified civil
liability.
This bill would, subject to funding specifically provided for this
purpose, require the Judicial Council to develop one or more model
pilot projects in selected courts pursuant to a competitive grant
process and a request for proposals. The bill would provide that
legal counsel shall be appointed to represent low-income parties in
civil matters involving critical issues affecting basic human needs
in those courts selected by the Judicial Council, as specified. The
bill would provide that each project shall be a partnership between
the court, a qualified legal services provider that shall serve as
the lead agency for case assessment and direction, and other legal
services providers in the community who are able to provide the
services for the project. The bill would require the lead legal
services agency, to the extent practical, to identify and make use of
pro bono services in order to maximize available services
efficiently and economically.
(2) Existing law sets the fees at $15 or $20 for various court
services, including, but not limited to, issuing a writ for the
enforcement of an order or judgment, issuing an abstract of judgment,
recording or registering any license or certificate, issuing an
order of sale, and filing and entering an award under the Workers'
Compensation Law.
This bill would increase those fees by $10, and would provide that
the $10 fee increase shall be transmitted quarterly for deposit in
the Trial Court Trust Fund and used by the Judicial Council for
implementing and administering the civil representation pilot program
described in (1) above.
Vote: majority. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. It is the intent of the Legislature
to expand the availability of legal counsel in critical civil matters
through locally controlled pilot programs designed to test and
evaluate new methods for the fair and cost-efficient resolution of
legal disputes, and the comprehensive enforcement of vital legal
rights, with respect to basic human needs. These pilot programs shall
be implemented without additional allocations from or expenditures
by the state General Fund. The pilot programs should be designed to
guard against the involuntary waiver of those rights or their
disposition by default, particularly by indigent parties, including
the elderly and people with disabilities. These pilot programs should
be designed to address the substantial inequities in timely and
effective access to justice that often give rise to an undue risk of
erroneous decision because of the nature and complexity of the law
and the proceeding or disparities between the parties in education,
sophistication, language proficiency, and legal representation or
access to self-help or alternative dispute resolution services. The
Legislature further recognizes that there are significant social and
governmental costs of depriving such parties of those legal rights,
and that these costs may be avoided by providing the assistance of
counsel where parties have a reasonable possibility of achieving a
favorable outcome.
SECTION 1. The Legislature hereby finds and
declares all of the following:
(a) There is an increasingly dire need for legal services for poor
Californians. Due to insufficient funding from all sources, existing
programs providing free services in civil matters to indigent and
disadvantaged persons, especially underserved groups such as elderly,
disabled, children, and non-English-speaking persons, are not
adequate to meet existing needs.
(b) The critical need for legal representation in civil cases has
been documented repeatedly and the statistics are staggering.
California courts are facing an ever increasing number of parties who
go to court without legal counsel. Over 4.3 million Californians are
believed to be currently unrepresented in civil court proceedings,
largely because they cannot afford representation. Current funding
allows legal services programs to assist less than one-third of
California's poor and lower-income residents. As a result, many
Californians are unable to meaningfully access the courts and obtain
justice in a timely and effective manner. The effect is that critical
legal decisions are made without the court having the necessary
information, or without the parties having an adequate understanding
of the orders to which they are subject.
(c) The modern movement to offer legal services for the poor was
spearheaded by Sargent Shriver in 1966, aided by the American Bar
Association, then headed by future Supreme Court Justice Lewis
Powell, driven by the large disparity that existed between the number
of lawyers available for poor Americans compared with the
availability of legal services for others. While much progress has
been made since then, significant disparity continues. According to
federal poverty data, there was one legal aid attorney in 2006 for
every 8,373 poor people in California. By contrast, the number of
attorneys providing legal services to the general population is
approximately one for every 240 people - nearly 35 times higher.
(d) There are significant social and governmental costs of
depriving unrepresented parties of vital legal rights affecting basic
human needs, particularly with respect to indigent parties,
including the elderly and people with disabilities, and these costs
may be avoided or reduced by providing the assistance of counsel
where parties have a reasonable possibility of achieving a favorable
outcome.
(e) Expanding representation will not only improve access to the
courts and the quality of justice obtained by these individuals, but
will allow court calendars that currently include many
self-represented litigants to be handled more effectively and
efficiently. Increasing the availability of legal representation for
litigants who must currently represent themselves or face loss of
their legal rights is a key priority of the Judicial Council and
Chief Justice Ronald M. George. As the Chief Justice has noted, the
large and growing number of self-represented litigants is one of the
most challenging issues in the coming decade, imposing significant
costs on the judicial system and the public by impairing the ability
of the courts to efficiently process heavy caseloads, and eroding the
public's confidence in our judicial system. The experience and data
collected through a pilot program will assist the courts and the
legal community in developing new strategies to provide legal
representation to overcome this challenge.
SEC. 2. In light of the large and ongoing justice gap between the
legal needs of low-income Californians and the legal resources
available to meet those needs, it is the intent of the Legislature to
encourage the legal profession to make further efforts meet its
professional responsibilities and other obligations by providing pro
bono legal services and financial support of nonprofit legal
organizations that provide free legal services to underserved
communities.
SEC. 3. Article 9.6 (commencing with Section 6159.5) is added to
Chapter 4 of Division 3 of the Business and Professions Code, to
read:
Article 9.6. Legal Aid Organizations
6159.5. The Legislature hereby finds and declares all of the
following:
(a) Legal aid programs provide a valuable service to the public by
providing free legal services to the poor.
(b) Private, for-profit organizations that have no lawyers have
been using the name "legal aid" in order to obtain business from
people who believe they are obtaining services from a nonprofit legal
aid organization.
(c) Public opinion research has shown that the term "legal aid" is
commonly understood by the public to mean free legal assistance for
the poor.
(d) Members of the public seeking free legal assistance are often
referred by telephone and other directory assistance information
providers to for-profit organizations that charge a fee for their
services, and there are a large number of listings in many telephone
directories for "legal aid" that are not nonprofit but are actually
for-profit organizations.
(e) The Los Angeles Superior Court has held that there is a common
law trademark on the name "legal aid," which means legal services
for the poor provided by a nonprofit organization.
(f) The public will be benefited if for-profit organizations are
prohibited from using the term "legal aid," in order to avoid
confusion.
6159.51. For purposes of this article, "legal aid organization"
means a nonprofit organization that provides civil legal services for
the poor without charge.
6159.52. (a) It is unlawful for any person or organization to use
the term "legal aid," "legal aide," or any confusingly similar name
in any firm name, trade name, fictitious business name, or any other
designation, or on any advertisement, letterhead, business card, or
sign, unless the person or organization is a legal aid organization
subject to fair use principles for nominative, descriptive, or
noncommercial use.
(b) It is unlawful for any person to sell or charge a fee for any
legal form or other document created by a legal aid organization or
by a court or other public agency of the state regarding or for use
in a court action or proceeding if the form or other document is
available to the public without charge from the legal aid
organization, court, or other public agency.
(c) It is unlawful for any person for a fee to assist or offer to
assist in the provision of self-help services that are provided
without charge by a court or legal aid organization.
6159.53. (a) Any consumer injured by a violation of Section
6159.52 may file a complaint and seek injunctive relief, restitution,
and damages in the superior court of any county in which the
defendant maintains an office, advertises, or is listed in a
telephone directory.
(b) A person who violates Section 6159.52 shall be subject to an
injunction against further violation of Section 6159.52 by any legal
aid organization that maintains an office in any county in which the
defendant maintains an office, advertises, or is listed in a
telephone directory. In an action under this subdivision, it is not
necessary to allege or prove actual damage to the plaintiff, and
irreparable harm and interim harm to the plaintiff shall be presumed.
(c) Reasonable attorney's fees shall be awarded to the prevailing
plaintiff in any action under this section.
SEC. 4. Chapter 2.1 (commencing with Section
68650) is added to Title 8 of the Government Code
, to read:
CHAPTER 2.1. CIVIL LEGAL REPRESENTATION
68650. (a) Legal counsel shall be appointed to represent
low-income parties in civil matters involving critical issues
affecting basic human needs in those specified courts selected by the
Judicial Council as provided in this section.
(b) (1) Subject to funding specifically provided for this purpose
pursuant to subdivision (d) of Section 70626, the Judicial Council
shall develop one or more model pilot projects in selected courts
pursuant to a competitive grant process and a request for proposals.
Projects authorized under this section shall provide representation
of counsel for low-income persons who require legal services in civil
matters involving basic human needs that would not be met using
existing legal resources, and to gather information on the outcomes
associated with providing these services, to guard against the
involuntary waiver of those rights or their disposition by default.
These pilot projects should be designed to address the substantial
inequities in timely and effective access to justice that often give
rise to an undue risk of erroneous decision because of the nature and
complexity of the law and the proceeding or disparities between the
parties in education, sophistication, language proficiency, legal
representation, access to self-help, and alternative dispute
resolution services. In order to ensure that the scarce funds
available for the program are used to serve the most critical cases
and the parties least able to access the courts without
representation, eligibility for representation shall be limited to
clients whose household income falls at or below 200 percent of the
federal poverty level. Projects shall impose asset limitations
consistent with their existing practices in order to ensure optimal
use of funds.
(2) Each project shall be a partnership between the court, a
qualified legal services provider that shall serve as the lead agency
for case assessment and direction, and other legal services
providers in the community who are able to provide the services for
the project. The lead legal services agency shall be the central
point of contact for receipt of referrals to the project and to make
determinations of eligibility based on uniform criteria. The lead
legal services agency shall be responsible for providing
representation to the clients or referring the matter to one of the
organization or individual providers with whom the legal services
agency contracts to provide the service. To the extent practical, the
lead legal services agency shall identify and make use of pro bono
services in order to maximize available services efficiently and
economically.
SEC. 5. Section 70626 of the Government
Code is amended to read:
70626. (a) The fee for each of the following services is
fifteen twenty-five dollars ($15).
Amounts ($25). Subject to subdivision (d), amounts
collected shall be distributed to the Trial Court Trust Fund
under Section 68085.1.
(1) Issuing a writ of attachment, a writ of mandate, a writ of
execution, a writ of sale, a writ of possession, a writ of
prohibition, or any other writ for the enforcement of any order or
judgment.
(2) Issuing an abstract of judgment.
(3) Issuing a certificate of satisfaction of judgment under
Section 724.100 of the Code of Civil Procedure.
(4) Certifying a copy of any paper, record, or proceeding on file
in the office of the clerk of any court.
(5) Taking an affidavit, except in criminal cases or adoption
proceedings.
(6) Acknowledgment of any deed or other instrument, including the
certificate.
(7) Recording or registering any license or certificate, or
issuing any certificate in connection with a license, required by
law, for which a charge is not otherwise prescribed.
(8) Issuing any certificate for which the fee is not otherwise
fixed.
(b) The fee for each of the following services is twenty
thirty dollars ($20). Amounts
($30). Subject to su bdivision (d), amounts
collected shall be distributed to the Trial Court Trust Fund under
Section 68085.1.
(1) Issuing an order of sale.
(2) Receiving and filing an abstract of judgment rendered by a
judge of another court and subsequent services based on it, unless
the abstract of judgment is filed under Section 704.750 or 708.160 of
the Code of Civil Procedure.
(3) Filing a confession of judgment under Section 1134 of the Code
of Civil Procedure.
(4) Filing an application for renewal of judgment under Section
683.150 of the Code of Civil Procedure.
(5) Issuing a commission to take a deposition in another state or
place under Section 2026.010 of the Code of Civil Procedure, or
issuing a subpoena under Section 2029.300 to take a deposition in
this state for purposes of a proceeding pending in another
jurisdiction.
(6) Filing and entering an award under the Workers' Compensation
Law (Division 4 (commencing with Section 3200) of the Labor Code).
(7) Filing an affidavit of publication of notice of dissolution of
partnership.
(8) Filing an appeal of a determination whether a dog is
potentially dangerous or vicious under Section 31622 of the Food and
Agricultural Code.
(9) Filing an affidavit under Section 13200 of the Probate Code,
together with the issuance of one certified copy of the affidavit
under Section 13202 of the Probate Code.
(10) Filing and indexing all papers for which a charge is not
elsewhere provided, other than papers filed in actions or special
proceedings, official bonds, or certificates of appointment.
(c) The fee for filing a first petition under Section 2029.600 or
2029.620 of the Code of Civil Procedure, if the petitioner is not a
party to the out-of-state case, is eighty dollars ($80). Amounts
collected shall be distributed to the Trial Court Trust Fund pursuant
to Section 68085.1.
(d) Of the amounts collected pursuant to subdivisions (a) and (b),
ten dollars ($10) of each fee shall be transmitted quarterly to be
deposited in the Trial Court Trust Fund and used by the Judicial
Council for the expenses of the Judicial Council in implementing and
administering the civil representation pilot program under Section
68650.