BILL ANALYSIS
AB 590
Page 1
ASSEMBLY THIRD READING
AB 590 (Feuer)
As Amended April 30, 2009
Majority vote
JUDICIARY 7-2 APPROPRIATIONS 12-5
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|Ayes:|Feuer, Brownley, Evans, |Ayes:|De Leon, Ammiano, Charles |
| |Jones, Krekorian, Lieu, | |Calderon, Davis, Fuentes, |
| |Monning | |Hall, John A. Perez, |
| | | |Price, Skinner, Solorio, |
| | | |Torlakson, Krekorian |
| | | | |
|-----+--------------------------+-----+---------------------------|
|Nays:|Knight, Nielsen |Nays:|Nielsen, Duvall, Harkey, |
| | | |Miller, |
| | | |Audra Strickland |
| | | | |
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SUMMARY : Promotes access to justice for low-income Californians.
Specifically, this bill :
1)Establishes a fully self-supported pilot program by the Judicial
Council (JC) 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
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in proceedings for all court users and other problems that can
ultimately subvert the administration of justice.
3)Provides that JC 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 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.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, estimated annual revenues to the Trial Court Trust Fund
from the $10 fee increases is $11 million. The scope and size of
the pilot project, including all of JC's administrative costs will
be determined by the actual fee revenues. JC indicates that there
could be future savings in court case-processing costs to the
extent the pilot projects illuminate improved practices and
increase case-management efficiencies.
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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 meritorious claims.
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.
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.
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.
Legal and judicial leaders increasingly recognize the need to fix
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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 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.
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 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.
The Access Commission has also recommended measures to promote pro
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bono by 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, JC 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.
Lastly, the bill outlaws legal aid fraud and related misconduct.
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0001114