BILL ANALYSIS
AB 590
Page 1
Date of Hearing: April 21, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 590 (Feuer) - As Amended: March 12, 2009
As Proposed to be Amended
SUBJECT : ACCESS TO JUSTICE: CIVIL COUNSEL
KEY ISSUE : IN ORDER TO PROMOTE EQUAL ACCESS TO JUSTICE AND
RELIEVE COURT BURDENS REGARDING UNREPRESENTED PARTIES, SHOULD A
SELF-SUPPORTED PILOT PROGRAM BE UNDERTAKEN BY THE JUDICIAL
COUNCIL TO PROVIDE FOR THE APPOINTMENT OF COUNSEL FOR INDIGENT
PARTIES IN CRITICAL CIVIL CASES?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial measure seeks to address the large and
growing problem of unrepresented parties in a court system
designed to function with skilled legal advocates on both sides
presenting the law and the fact to a neutral judge or jury.
Legal and judicial leaders increasingly recognize the need to
fix a system that is not only failing to meet the needs of so
many court users, and the courts themselves, but also failing to
honor basic constitutional and common law principles underlying
the doctrine of equal justice under the law. The bill
authorizes the Judicial Council to establish a fully
self-supported pilot program for the appointment of legal
representation for unrepresented low-income parties in civil
matters involving critical issues affecting basic human needs so
that judicial decisions are made on the basis of the necessary
information and the parties have an adequate understanding of
the orders to which they are subject. In so doing, it builds on
a 2007 budget proposal advocated by California Supreme Court
Chief Justice Ronald George and backed by Governor
Schwarzenegger, but avoids the need to draw on scarce state
funds by relying instead on a small $10 increase on certain
court fees that are currently low and largely optional or
charged only when a party has used the legal system to his or
her advantage.
SUMMARY : Promotes access to justice for low-income
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Californians. Specifically, this bill :
1)Establishes a fully self-supported pilot program by the
Judicial Council for the appointment of legal representation
for unrepresented low-income parties in civil matters
involving critical issues affecting basic human needs so that
judicial decisions are made on the basis of the necessary
information and the parties have an adequate understanding of
the orders to which they are subject. 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.
2)Finds that the absence of representation not only
disadvantages parties, but 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.
Such 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.
3)Provides that the Judicial Council shall report to the
Governor and the Legislature regarding the effectiveness and
continued need for the pilot program along with other findings
and recommendations on or before March 1, 2013, including the
impact of counsel on equal access to justice and the effect on
court administration and efficiency, such as reduced courtroom
time for hearings, increased compliance with orders and court
schedules, reduced case delays, and enhanced coordination
between courts and other government service providers and
community resources.
4)Combats fraudulent and deceptive misuse of the term "legal
aid" unless the entity is a bona fide nonprofit organization
that provides civil legal services for the poor without charge
by prohibiting such conduct and providing a mechanism by which
injured consumers and legal aid organizations may obtain
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relief, and similarly makes it 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 or 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.
5)States 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 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.
EXISTING LAW :
1)Guarantees a right to counsel in criminal proceedings (Gideon
v. Wainwright (1963) 372 U.S. 335), but not generally in civil
matters (Lassiter v. Department of Social Services (1981) 452
U.S. 18).
2)Provides that it has been the tradition of those learned in
the law and licensed to practice law in this state to provide
voluntary pro bono legal services to those who cannot afford
the help of a lawyer; that every lawyer authorized and
privileged to practice law in California is expected to make a
contribution; that in some circumstances, it may not be
feasible for a lawyer to directly provide pro bono services;
and that in those circumstances, a lawyer may instead fulfill
his or her individual pro bono ethical commitment, in part, by
providing financial support to organizations providing free
legal services to persons of limited means. (Business and
Professions Code Section 6073.)
3)Provides that a contract with the state for legal services
that exceeds fifty thousand dollars ($50,000) shall include a
certification by the contracting law firm that the firm agrees
to make a good faith effort to provide, during the duration of
the contract, a minimum number of hours of pro bono legal
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services during each year of the contract and that failure to
make a good faith effort may be cause for nonrenewal of a
state contract for legal services, and may be taken into
account when determining the award of future contracts with
the state for legal services, and that in awarding a contract
with the state for legal services that exceeds fifty thousand
dollars ($50,000), the awarding department shall consider the
efforts of a potential contracting law firm to provide, during
the 12-month period prior to award of the contract, the
minimum number of hours of pro bono legal services. (Business
and Professions Code Section 6072.)
COMMENTS : According to the old proverb, a lawyer who represents
himself in court has a fool for a client. This principle is so
well established by experience that it has been cited by the
U.S. Supreme Court in support of the holding that a lawyer who
represents himself cannot collect attorney's fees because he is
unlikely to offer effective prosecution of meritiorious claims.
(Kay v. Ehrler (1991) 499 U.S. 432, 437-38.)
If lawyers are unfit to represent themselves, what are we to
make of non-lawyers who do so? Yet millions of people in
California and across the nation now appear in court every year
without legal representation - a trend that began in the 1990s
after federal limits were imposed on legal aid programs, and one
that has worsened with the current economic recession. As these
unrepresented parties attempt to navigate our civil justice
system they encounter an open secret known to every judge and
lawyer: even if the law is on your side, if you don't have a
lawyer you may have no rights at all. Even greater numbers of
people may simply be forced to give up their rights without
attempting to represent themselves, knowing the odds are
hopeless.
A Growing Need For Legal Services, But Diminishing Resources .
As the Legislature, the Judicial Council and the California
Commission on Access to Justice have previously observed, 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. Legal services programs are able to assist less than
one-third of California's poor and lower-income residents.
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"At best, being low income and having the right kind of problem
gets a person in the door at a legal aid office. It doesn't
guarantee that there's a lawyer available to help, no matter how
meritorious the case. And there are numerous legal issues -
including some kinds of consumer disputes, employment cases and
some family law issues - that most legal aid offices don't have
the staff to handle." (C. Pastore, Rescuing Legal Aid, Los
Angeles Times (Feb. 23, 2009.))
As Chief Justice Ronald George noted in his 2009 State of the
Judiciary Speech, the current economic downturn has increased
court caseloads in a number of civil areas, including many of
the areas where unrepresented parties predominate, such as
domestic violence, probate conservatorships and guardianships of
the person, unlawful detainer, elder abuse and civil harassment
restraining orders. Tragically, however, as the current
economic recession has increased the need for assistance it has
caused funding for nonprofit legal centers to dwindle as
interest rates on lawyer trust accounts for which legal aid
organizations largely depend have dropped to near zero, while
law firms and other private funding sources have scaled back
their support.
The issue has surfaced repeatedly in press reports from the New
York Times, Los Angeles Times, San Francisco Chronicle and
others, and was noted most recently in an article last week in
the Orange County Register headlined "Bankruptcy? Foreclosure?
Many asking for free legal aid: Legal nonprofits in Orange
County report record number of demand."
Dan Colburn calls his van home. He spends his nights
driving around north Orange County, looking for a desolate
parking lot where he can sleep undisturbed.
Four months ago, the Navy veteran was kicked out of his
mobile home, unable to afford the $355 in monthly payments.
He had moved to the mobile home after losing his home in
Big Bear in 2007 - deciding to pay $180,000 in medical
bills rather than his mortgage.
The 61-year-old says he survives solely on $1,200 in Social
Security. The former locksmith also has been unable to
find work.
He decided to turn for help to the Legal Aid Society of
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Orange County, and filed for personal bankruptcy this
month.
The Legal Aid Society - as well as the Public Law Center -
report that more and more individuals like Colburn have
spiraled into poverty and are now coming to their clinics
seeking help. Dozens of other legal nonprofits statewide
also attest to increased demand.
"We have more foreclosures, we have more everything,'' said
Bob Cohen, executive director of the Legal Aid Society.
"We've never seen this need. Families are falling apart
because they have no money."
At the center, there has been a 337-percent increase in the
number of clients seeking help with their foreclosures, and
a 135-percent rise in foreclosure cases from 2006-2008.
As for the Public Law Center, the nonprofit reports a
67-percent increase in cases handled through its twice
monthly bankruptcy clinic in the past year.
The need is reverberated throughout other legal aid-groups
in the state. There are 100 legal nonprofits in California
- many of which are seeing increased need because of the
economy, according to Stephanie Choy, managing director of
the State Bar's Legal Services Trust Fund program, which
provides money to such groups.
"When there is a bad economy, people's legal needs go up,''
she said. "Even before this economy, these organizations
could only serve a portion of people's needs."
There probably will be fewer clients who can be helped in
the future, experts say.
Funds for such legal service organizations are dwindling
because funding from government - which is struggling with
deficits, foundations and grants -- are drying up, meaning
the groups will be able to help fewer people, said Deborah
Rhode, a professor at Stanford Law School.
"Many of these programs are in a position with having to do
more with even less,'' Rhode said. "And the future looks
even worse. (Orange County Register, April 16, 2009.)
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Courts Increasingly Challenged By The Large Number Of
Unrepresented Parties In A Broad Range Of Civil Proceedings.
Over 45 years ago the U.S. Supreme court in Gideon v. Wainwright
(1963) 372 U.S. 335 recognized the "obvious truth" that any
person hauled into court who is too poor to hire a lawyer cannot
be assured a fair trial unless legal counsel is provided. Of
course, it's not that judges favor lawyers; it's that in our
adversarial system of justice, judges largely rely on the
parties to present the case. Not surprisingly, studies show
that unrepresented parties are likely to lose - even if their
case is meritorious, and particularly if their opponent is
represented by a lawyer.
Gideon was a criminal case, and its holding has largely been
limited to criminal proceedings, despite tireless efforts by
bench and bar leaders, most notably retired Court of Appeal
Justice Earl Johnson. As a result there is no right to
appointed counsel in civil cases, even when the stakes may
involve vital legal rights and basic human needs. As a result,
many Californians are unable to meaningfully access the courts
and obtain justice in a timely and effective manner. 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. 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.
Concern Regarding Affect Of Unrepresented Parties On Court
Functions, Outcomes, Rule of Law, And Public Trust and
Confidence. Legal and judicial leaders increasingly recognize
the need to fix a system that is not only failing to meet the
needs of so many court users, and the courts themselves, but
also failing to honor basic constitutional and common law
principles underlying the doctrine of equal justice under the
law. The statutes passed by this Legislature and applied by the
courts are intended to embody the principle 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.
But, as the California Commission on Access to Justice has
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noted, 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 effectively provides no justice at
all - a situation that may be far worse than one in which the
laws expressly favor some and disfavor others.
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 this widespread
perception: 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. (E.g., R. Sandefur, Elements of
Expertise: Lawyers' Impact on Civil Trial and Hearing Outcomes,
34-42, (forthcoming 2009)(copy on file with the Committee); R.
Engler, And Justice for All-Including the Unrepresented Poor:
Revisiting the Roles of the Judges, Mediators and Clerks, 67
Fordham L. Rev 1987 (1999). See also R. Engler, Connecting
Self-Representation to Civil Gideon: What Existing Data Reveal
About When Counsel is Most Needed, 36 Fordham Urb. L. J__ (2009)
(forthcoming).)
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.
Expanding representation will not only improve access to the
courts and the quality of justice obtained by these individuals,
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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 heir legal rights is a key priority
of the Judicial Council and Chief Justice Ronald M. George. As
the Chief Justice noted in his 2007 State of the Judiciary
Speech to the Legislature, 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.
Moreover, 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.
This Bill Would Authorize A Self-Supported Demonstration Project
That Would Develop Methods To Address The Manifest Need For
Increased Access To Civil Counsel In Critical Cases When Parties
Are Too Poor To Afford A Lawyer. AB 590 reflects a growing
national movement in the legal community, endorsed by judges,
legal leaders and scholars, including the American Bar
Association, California Commission on Access to Justice, and the
Conference of California Bar Associations to increase access to
counsel in critical civil cases when a party is too poor to
afford a lawyer. It builds on a 2007 proposal advocated by
Chief Justice George and backed by Governor Schwarzenegger which
sought to create a demonstration program funded by the state
budget. In light of the state's well known budget constraints,
that effort was unsuccessful. This bill in contrast would
support the project without drawing on scarce state funds by a
small $10 increase on certain court fees that are currently low
($15 to $20) and either optional (certifying copies of records)
or generally charged only when a party has used the legal system
to his or her advantage (e.g., obtaining an abstract of judgment
or certificate of judgment).
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Under the bill, the Judicial Council is authorized to develop
one or more model pilot projects in selected courts pursuant to
a competitive grant process and a request for proposals, subject
to the funding specifically provided for this purpose in the
bill. Approved projects would provide representation of counsel
for low-income persons who require legal services in civil
matters involving basic human needs as well as providing court
procedures, personnel, training, and case management and
administration methods that reflect best practices to assure
unrepresented parties in those cases have meaningful access to
justice, 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. Each
project shall be a partnership between the court and a qualified
legal services provider who would serve as the central point of
contact for receipt of referrals to the project and to make
determinations of eligibility based on uniform criteria. The
legal services provider is to identify and make use of pro bono
services in order to maximize available services efficiently and
economically. The participating courts would be responsible for
providing procedures, personnel, training and case management
and administration practices that reflect best practices to
assure unrepresented parties meaningful access to justice and to
guard against the involuntary waiver of rights, as well as to
encourage fair and expeditious voluntary dispute resolution,
consistently with principles of judicial neutrality. The bill
also calls for the Judicial Council to study the effectiveness
and continued need for the pilot program and report its initial
findings and recommendations to the Governor and the Legislature
on or before March 1, 2013.
Promotion of Pro Bono. The Access Commission has recommended
measures to promote pro bono by lawyers, noting:
Every year, tens of thousands of California lawyers provide
pro bono legal services in conjunction with over 100
California legal services programs or other public interest
groups. ?. They provide business law assistance to
non-profit organizations and micro-entrepreneurs. They
staff clinics at senior centers, family resource centers
and homeless shelters where they offer brief advice,
counsel and information. They assist in community
education and outreach programs designed to inform and
enable low and moderate income individuals to resolve their
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own legal issues. While organized pro bono efforts have
existed for many years, during the past 25 years in
particular the legal profession has sought to significantly
expand institutionalized pro bono rather than rely on the
isolated acts of charitably minded lawyers. Pro bono
programs now mobilize large numbers of pro bono attorneys
whose efforts, along with those of legal services attorney
staff, help provide a continuum of legal services to
California's low-income population, from legal
representation, impact litigation and business law
assistance to non-profit organizations and
micro-entrepreneurs, to community education and outreach,
and policy advocacy. ? While the efforts of volunteer
lawyers, paralegals and law students will never fill all of
the unmet legal needs facing low and moderate income
Californians, they are a crucial element in the network of
attorney-staffed legal services programs. However, there
remains significant capacity for the legal community to
provide more pro bono legal services. Therefore, it is
important that pro bono and legal services programs have
the resources to successfully recruit, train, mobilize and
mentor California pro bono lawyers.
Among other recommendations, the commission singled out for
special attention the value of adopting ABA Model Rule 6.5,
which allows attorneys working in legal services and court-based
advice and counsel or brief service clinics to assist clients,
unless the attorney has actual knowledge of a conflict. It is
believed that the State Bar is making progress on this issue,
but it is clear that advice and referral clinics are beneficial
for only a small set of legal problems, and represent only part
of the overall unmet need for legal services. As this bill
moves forward, the author intends to work with the Access
Commission, State Bar, Legal Aid Association of California, the
Judicial Council and other interested stakeholders to explore
specific mechanisms to promote these critical pro bono services
and related financial support of nonprofit legal organizations
that provide free legal services to underserved communities.
For example, existing law provides that a contract with the
state for legal services that exceeds $50,000 shall include a
certification by the contracting law firm that the firm agrees
to make a "good faith effort" to provide a minimum number of
hours of pro bono legal services during each year of the
contract, and that failure to make a good faith effort may be
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cause for nonrenewal of a state contract for legal services, and
may be taken into account when determining the award of future
contracts with the state for legal services, and that in
awarding a contract with the state for legal services that
exceeds $50,000, the awarding department shall consider the
efforts of a potential contracting law firm to provide, during
the 12-month period prior to award of the contract, the minimum
number of hours of pro bono legal services. (Business and
Professions Code Section 6072.) Unfortunately, firms receiving
state contract funds are not required to provide any information
regarding their ability to reach these goals, and anecdotal
information from legal aid organizations indicates that these
firms vary widely in their efforts to provide pro bono services
and financial support. Moreover, it appears that the lack of
information from firms may hamper the ability of state agencies
to consider the firms' efforts in the award or renewal of
contracts. The existing statute has also not been updated to
reflect the recognition that financial support of legal aid
organizations can also be counted toward meeting a firm's pro
bono commitment. (Business and Professions Code Section 6073.)
Legal Aid Fraud. Lastly, the bill outlaws legal aid fraud and
related misconduct. As the Commission's report explains:
When people are sued or need legal advice, they are
commonly directed to "legal aid" agencies in court forms
and by court staff, by information and referral lines, or
by word of mouth. Indigent people sued for eviction,
divorce, debt collection, or car repossessions, believe
that by contacting "legal aid" they are reaching out to the
proper agency that will assist them for no or low fees.
Unfortunately, because the
term "legal aid" is not regulated, anyone can use it as
part of their business name.
The result is that unscrupulous people create companies
named "legal aid" and take advantage of the widely held
belief that "legal aid" is the place that low-income people
in legal need should turn to. Other vulnerable groups such
as immigrants are similarly exploited, both because they
are often unfamiliar with the American legal system and
because they are unlikely to approach law enforcement
agencies to report abuses.
These companies defraud our state's most vulnerable
populations at a very precarious time in their lives. They
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take large deposits and fail to file responsive pleadings
essential to protect critical rights; they overcharge for
services; and they charge for services that could be
obtained at no cost. The harm caused by these fraudulent
practices has consequences far beyond the harm they
directly inflict on the consumers who employ their
services. By presenting themselves as "legal aid" and then
not fulfilling their promise and overcharging clients,
these businesses cause the public to distrust legal aid
agencies generally, not realizing that these for-profit
businesses are not true legal aid organizations. This
distrust can have far reaching effects if the poor do not
seek the assistance of legal aid under the belief that it
will cost them money they do not have and will not
adequately assist them with their legal problems.
Currently, there is no way to control directory assistance
referrals to these "legal aid" listings, and even
successful lawsuits against these businesses only result in
temporary abatement, as they simply change the name and
location of their operations to continue these fraudulent
practices.
REGISTERED SUPPORT / OPPOSITION :
Support
AIDS Legal Referral Panel
Bet Tzedek Legal Services
California Commission on Access to Justice
California Indian Legal Services
California Rural Legal Assistance Foundation
Central California Legal Services, Inc.
City of Santa Monica
Disability Rights Education and Defense Fund (DREDF)
Inner City Law Center
Legal Aid Association of California
Legal Aid Society of San Diego
Legal Services of Northern California
Legal Services for Prisoners with Children
Los Angeles Center for Law and Justice
Neighborhood Legal Service of Los Angeles County
Public Advocates
Public Counsel
Public Interest Clearinghouse
Western Center on Law and Poverty
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Watsonville Law Center
Opposition
None on file
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334