BILL NUMBER: AB 590 AMENDED
BILL TEXT
AMENDED IN SENATE JUNE 30, 2009
AMENDED IN ASSEMBLY APRIL 30, 2009
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 Sections 68085.1 and 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.
(1) Existing
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 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 for 3-year periods 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
project 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. The bill would
provide that the court partner is responsible for providing
procedures, personnel, training, and case management and
administration practices that reflect best practices, as specified.
The bill would require a local advisory committee to be formed to
facilitate the administration of the local project and to ensure that
the project is fulfilling its objectives. The bill would require the
Judicial Council to conduct a study to demonstrate the effectiveness
and continued need for the pilot program, and to report its findings
and recommendations to the Governor and the Legislature on or before
March 1, 2013, and every 3 years thereafter.
(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: yes
no . State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
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) The fair resolution of conflicts through the legal system
offers financial and economic benefits by reducing the need for many
state services and allowing people to help themselves. There are
significant social and governmental fiscal 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. While court self-help
services are important, those services are insufficient alone to meet
all needs. Experience has shown that those services are much less
effective when, among other factors, unrepresented parties lack
income, education, and other skills needed to navigate a complex and
unfamiliar court process, and particularly when unrepresented parties
are required to appear in court or face opposing counsel.
Recognizing that not all indigent parties may be allowed
representation, even when they have meritorious cases, and that
self-help services cannot meet the needs of all unrepresented
parties, courts presented with disputes regarding basic human needs
that involve low-income litigants facing parties who are represented
by counsel have a special responsibility to employ best practices
designed to ensure that unrepresented parties obtain meaningful
access to justice and to guard against the involuntary waiver or
other loss of rights or the disposition of those cases without
appropriate information and regard for potential claims and defenses,
consistent with principles of judicial neutrality. 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.
(f) The doctrine of equal justice under the law is based on two
principles. One is that the substantive protections and obligations
of the law shall be applied equally to everyone, no matter how high
or low their station in life. The second principle involves access to
the legal system. Even if we have fair laws and an unbiased
judiciary to apply them, true equality before the law will be
thwarted if people cannot invoke the laws for their protection. For
persons without access, our system provides no justice at all, a
situation that may be far worse than one in which the laws expressly
favor some and disfavor others.
(g) Many judicial leaders acknowledge that the disparity in
outcomes is so great that indigent parties who lack representation
regularly lose cases that they would win if they had counsel. A
growing body of empirical research confirms the widespread perception
that parties who attempt to represent themselves are likely to lose,
regardless of the merits of their case, particularly when the
opposing party has a lawyer, while parties represented by counsel are
far more likely to prevail. Judicial leaders and scholars also
believe that the presence of counsel encourages settlements. Just as
importantly, court opinion surveys show that more than two-thirds of
Californians believe low-income people usually receive worse outcomes
in court than others. Unfairness in court procedures and outcomes,
whether real or perceived, threatens to undermine public trust and
confidence in the courts. The sense that court decisions are made
through a process that is fair and just, both in substance and
procedure, strongly affects public approval and confidence in
California courts. As many legal and judicial leaders have noted, the
combined effect of widespread financial inability to afford
representation coupled with the severe disadvantages of appearing in
court without an attorney foster a destructive perception that money
drives the judicial system. Respect for the law and the legal system
is not encouraged if the public perceives, rightly or wrongly, that
justice is mainly for the wealthy.
(h) Equal access to justice without regard to income is a
fundamental right in a democratic society. It is essential to the
enforcement of all other rights and responsibilities in any society
governed by the rule of law. It also is essential to the public's
confidence in the legal system and its ability to reach just
decisions.
(i) The adversarial system of justice relied upon in the United
States inevitably allocates to the parties the primary responsibility
for discovering the relevant evidence, finding the relevant legal
principles, and presenting them to a neutral judge or jury.
Discharging these responsibilities generally requires the knowledge
and skills of a legally trained professional. The absence of
representation not only disadvantages parties, it has a negative
effect on the functioning of the judicial system. When parties lack
legal counsel, courts must cope with the need to provide guidance and
assistance to ensure that the matter is properly administered and
the parties receive a fair trial or hearing. Those efforts, however,
deplete scarce court resources and negatively affect the court's
ability to function as intended, including causing erroneous and
incomplete pleadings, inaccurate information, unproductive court
appearances, improper defaults, unnecessary continuances, delays in
proceedings for all court users, and other problems that can
ultimately subvert the administration of justice.
(j) Because in many civil cases lawyers are as essential as judges
and courts to the proper functioning of the justice system, the
state has just as great a responsibility to ensure adequate counsel
is available to both parties in those cases as it does to supply
judges, courthouses, and other forums for the hearing of those cases.
(k) Many of those living in this state cannot afford to pay for
the services of lawyers when needed for them to enjoy fair and equal
access to justice. In some cases, justice is not achievable if one
side is unrepresented because the parties cannot afford the cost of
representation. The guarantees of due process and equal protection as
well as the common law that serves as the rule of decision in
California courts underscore the need to provide legal representation
in critical civil matters when parties cannot afford the cost of
retaining a lawyer. In order for those who are unable to afford
representation to exercise this essential right of participants in a
democracy, to protect their rights to liberty and property, and to
the pursuit of basic human needs, the state has a responsibility to
provide legal counsel without cost. In many cases decided in the
state's adversarial system of civil justice the parties cannot gain
fair and equal access to justice unless they are advised and
represented by lawyers. In other cases, there are some forums in
which it may be possible for most parties to have fair and equal
access if they have the benefit of representation by qualified
nonlawyer advocates, and other forums where parties can represent
themselves if they receive self-help assistance.
(l) The state has an interest in providing publicly funded legal
representation and nonlawyer advocates or self-help advice and
assistance, when the latter is sufficient, and doing so in a
cost-effective manner by ensuring the level and type of service
provided is the lowest cost type of service consistent with providing
fair and equal access to justice. Several factors can affect the
determination of when representation by an attorney is needed for
fair and equal access to justice and when other forms of assistance
will suffice. These factors include the complexity of the substantive
law, the complexity of the forum's procedures and process, the
individual's education, sophistication and English language ability,
and the presence of counsel on the opposing side of the dispute.
(m) If those advised, assisted, or represented by publicly funded
lawyers are to have fair and equal access to justice, those lawyers
must be as independent, ethical, and loyal to their clients as those
serving clients who can afford to pay for counsel.
(n) The services provided for in this act are not intended to, and
shall not, supplant legal services resources from any other source.
This act does not entitle any person to receive services from a
particular legal services provider, nor shall this act override the
local or national priorities of existing legal services programs. The
services provided for in this act are likewise not intended to
undermine any existing pilot programs or other efforts to simplify
court procedures or provide assistance to unrepresented litigants.
Furthermore, nothing in this act shall be construed to prohibit the
provision of full legal representation or other appropriate services
funded by another source.
SEC. 2. SECTION 1. 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 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.
SEC. 3. SEC. 2. 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. All matter omitted in
this version of the bill appears in the bill as amended in Assembly,
April 30, 2009. (JR11)