BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 590
Assemblymember Feuer
As Amended August 20, 2009
Hearing Date: August 24, 2009
Business and Professions Code; Government Code
SK
PURSUANT TO SENATE RULE 29.10
SUBJECT
Civil Representation: Pilot Program
DESCRIPTION
This bill would, beginning July 1, 2011, and subject to funding
specifically provided for this purpose, enact the Sargent
Shriver Civil Counsel Act, requiring the Judicial Council to
develop one or more pilot projects in selected courts to provide
legal representation to low-income persons in civil matters
involving critical issues affecting basic human needs, as
specified. Under the bill, the Judicial Council must develop
the pilot projects using a competitive grant process and a
request for proposals. This bill would require the Judicial
Council to report to the Governor and the Legislature on or
before March 1, 2015, and every three years thereafter regarding
the effectiveness and continued need for the pilot program as
well as any findings and recommendations.
This bill also contains provisions concerning use of the term
"legal aid" and the provision of pro bono legal services. These
provisions were previously reviewed by this committee when it
heard the bill on July 14, 2009, as detailed in Comment 1 below.
BACKGROUND
In 1963, the United States Supreme Court decided Gideon v.
Wainright (1963) 372 U.S. 335, in which it unanimously ruled
that state courts are required under the Sixth Amendment of the
Constitution to provide counsel in criminal cases for defendants
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unable to afford their own attorneys. Thus, in every criminal
case which carries the possibility of imprisonment, the accused
has the right to an appointed counsel when he or she cannot
afford one.
In contrast, the right to counsel in civil proceedings is not as
well established. The concept is not novel, but rather goes
back to the earliest days of the common law when indigent
litigants had a right to appointment of counsel so they could
have access to the civil courts. English courts appointed
attorneys for such litigants as early as the 13th and 14th
centuries, and other countries have recognized a statutory right
to counsel in civil cases. The U.S. Supreme Court, however, has
declined to extend the right to counsel to indigents in civil
proceedings. In Lassiter v. Department of Social Services
(1981) 452 U.S. 18, the Court affirmed that an indigent
litigant's right to an appointed counsel applies only when the
litigant may be deprived of his or her personal liberty.
Consequently, while most European and Commonwealth countries
have a right to counsel in civil cases, the United States mainly
relies upon limited legal services and pro bono programs to
provide representation in civil matters.
In recent years, there has been a growing movement, 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 provide legal
counsel as a matter of right to indigent litigants in matters
where basic human needs are at stake. Proponents argue that
meaningful access to the civil justice system is largely
dependent upon legal representation; and that the likelihood of
a just result is significantly increased by competent
representation.
This bill would require the Judicial Council, beginning July 1,
2011, to develop pilot projects in selected courts to provide
legal representation to low-income parties in civil matters
involving critical issues affecting basic human needs, as
specified.
CHANGES TO EXISTING LAW
Existing law guarantees a right to counsel in criminal
proceedings (Gideon v. Wainwright, supra, 372 U.S. 335), but not
generally in civil matters (Lassiter v. Department of Social
Services, supra, 452 U.S. 18).
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This bill would, beginning July 1, 2011, and subject to funding
provided for this purpose, require the Judicial Council to
develop one or more pilot projects in selected courts to provide
legal representation to low-income persons in civil matters
involving critical issues affecting basic human needs. Under
the bill, the Judicial Council must develop the pilot projects
using a competitive grant process and a request for proposals.
This bill would specify that the projects shall provide
representation of counsel for low-income persons who require
legal services in civil matters involving the following: (1)
housing-related matters; (2) domestic violence and civil
harassment restraining orders; (3) probate conservatorships; (4)
guardianships of the person; (5) elder abuse; or (6) actions by
a parent to obtain sole legal or physical custody of a child.
This bill would provide that eligibility for representation
shall be limited to clients whose household income falls at or
below 200 percent of the federal poverty level. This bill would
specify that no more than 20 percent of available funds may be
directed to projects regarding civil matters involving actions
by a parent to obtain sole legal or physical custody of a child.
This bill would provide that each project shall be a partnership
between the court, a qualified legal services project, as
defined, and other legal services providers in the community.
This bill would impose various responsibilities on the lead
legal services agency including that the agency would be
responsible for providing representation to a client or
referring the matter to another organization or provider.
This bill would require the Judicial Council to appoint a
committee to select participating courts and would require that
projects be selected primarily on the basis of whether in the
cases proposed for service the persons to be assisted are likely
to be opposed by a party who is represented by counsel. This
bill would also require the Judicial Council to consider the
following factors:
(1) the likelihood that representation in the proposed case
type tends to affect whether a party prevails or otherwise
obtains a significantly more favorable outcome in a matter in
which they would otherwise frequently have judgment entered
against them or suffer the deprivation of the basic human need
at issue;
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(2) the likelihood of reducing the risk of an erroneous
decision;
(3) the nature and severity of potential consequences for the
unrepresented party regarding the basic human need at stake if
representation is not provided;
(4) whether the provision of legal services may eliminate or
reduce the need for and cost of public social services for the
client and others in the household;
(5) the unmet need for legal services in the geographic area to
be served; and
(6) the availability and effectiveness of other types of court
services, such as self-help.
This bill would provide that projects shall be authorized for a
three-year period beginning July 1, 2011, and may be renewed for
a period determined by the Judicial Council in consultation with
the court in light of the court's capacity and success.
This bill would require an applicant to meet specified
requirements such as identifying the partnership between the
court, the lead legal services agency, and other agencies or
providers and an explanation of the project's administration.
This bill would require a local advisory committee to be formed
for each project in order to facilitate the project's
administration and ensure that it is fulfilling its objectives.
The committee must include representatives of the bench and
court administration, the lead legal services agency, and
participating agencies or providers.
This bill would require the Judicial Council to report to the
Governor and the Legislature on or before March 1, 2015, and
every three years thereafter regarding the effectiveness and
continued need for the pilot program as well as any findings and
recommendations. Specified information must also be included in
the study.
This bill would specify that $10 of certain fees for various
court services be deposited into the Trial Court Trust Fund and,
beginning July 1, 2011, used by the Judicial Council for
implementing and administering the bill's civil representation
pilot program.
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This bill contains various legislative findings and declarations
concerning, among other things, the dire need for legal services
for poor Californians, the lack of adequate funding, the impact
of unrepresented litigants on the judicial system, the
importance of equal access to justice without regard to income
as a fundamental right in a democratic society, the guarantees
of due process and equal protection as well as the common law
which all underscore the need to provide legal representation in
critical civil matters when parties cannot afford a lawyer, and
the state's interest in providing publicly funded legal
representation, nonlawyer advocates, or self-help advice, where
sufficient.
This bill would prohibit the use of the term "legal aid" by any
entity unless the entity is a nonprofit organization that
provides civil legal services to the poor without charge. This
bill would also prohibit any person from selling or charging a
fee for certain legal forms used in court proceedings that are
available to the public for free.
This bill would also state the intent of the Legislature to
encourage attorneys to make further efforts to meet their
professional responsibilities and other obligations by providing
pro bono legal services, as specified.
COMMENT
1. Need to rehear the bill pursuant to Senate Rule 29.10; focus
of analysis
This bill was first heard in this committee on July 14, 2009,
and passed out on a 3-2 vote. At the time, this bill contained
only the provisions concerning legal aid and pro bono described
above. On August 20, 2009, this bill was amended to also
include the provisions requiring the Judicial Council to develop
pilot projects in selected courts to provide legal
representation to low-income parties in certain civil matters.
This hearing is necessary so that the committee may review these
new provisions.
In addition, because the bill's provisions regarding legal aid
and pro bono were analyzed when the bill was previously heard in
this committee, this analysis focuses only on the August 20,
2009 amendments to the bill.
2. Stated need for the bill
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The author writes:
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. (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.
In addition, the author notes that the bill would "build 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 [portion of] certain court fees that are . . . largely
optional or charged only when a party has used the legal system
to his or her advantage."
In 2007, the California Commission on Access to Justice noted
the increasing need for legal services for poor Californians and
the inability of existing legal services programs to meet that
need. In its Action Plan for Justice the Commission stated:
Unfortunately, the increases in funding that have been
achieved, while critically important, have not matched the
need for services. As a result, California is falling far
behind many other states in funding for legal services
programs. California ranks 22nd in the country in funding per
poor person for legal services, according to the American Bar
Association's Project to Expand Resources for Legal Services
(PERLS). Several states have 2 or 3 times the amount of
funding per poor person compared with California. . . .
There are only 754 legal aid attorneys in California, out of a
total of 165,381 active attorneys, to address the legal
problems of an indigent population that numbered 6.3 million
in 2005, representing nearly 18% of the population. This
results in the dismal reality that there are 8,360 eligible
clients per legal aid attorney.
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3. Increased access to civil legal representation
By requiring the Judicial Council to establish model pilot
projects in selected courts to provide legal representation to
low-income persons in civil matters involving critical issues
affecting basic human needs, this bill raises important public
policy issues regarding increased access to civil legal
representation.
As noted earlier, there is a growing legal movement to provide
legal counsel to low-income litigants in matters where basic
human needs are at stake. For example, on August 7, 2006, the
American Bar Association's (ABA) House of Delegates unanimously
approved a resolution urging federal, state, and territorial
governments to provide legal counsel as a matter of right at
public expense to low-income persons in adversarial proceedings
where basic human needs are at stake. That resolution furthered
the ABA's core principle that society must provide equal access
to justice, and that the legal profession has a special
obligation to provide that access. In 2006, the Conference of
California Bar Associations also approved a resolution urging
that the California Constitution be amended to provide that
those who cannot afford legal representation should be provided
counsel when needed to protect their rights to basic human
needs, including sustenance, shelter, safety, health, and child
custody. Supporters of the resolution stated that in addition
to providing better access to justice for all California
residents, especially those who could not otherwise afford legal
representation, the resolution would also improve various court
procedures and "lighten the load of judges who now must
facilitate the cases of people who are unrepresented."
In addition to improving access to the courts for low-income
individuals, this bill is likewise intended to assist the courts
in efficiently processing heavy caseloads particularly in those
instances where court calendars currently include many
self-represented litigants. The ABA also noted that the
American justice system requires parties to identify controlling
legal principles, determine relevant facts and follow often
complex rules of evidence and procedure, and present a coherent
case to the jury. Non-lawyers generally lack the knowledge,
expertise, and skills to perform those required tasks and are
destined to have limited success no matter how valid their
claim. According to the author, the "disparity in outcomes is
so great that indigent parties who lack representation regularly
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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."
This bill would attempt to address these disparities by
providing that projects selected for the pilot program shall be
selected primarily on the basis of whether in the cases proposed
for service the persons to be assisted are likely to be opposed
by a party who is represented by counsel. In addition, the
Judicial Council must also consider various factors, including:
(1) the likelihood that representation in the proposed case type
tends to affect whether a party prevails or otherwise obtains a
significantly more favorable outcome in a matter in which they
would otherwise frequently have judgment entered against them or
suffer the deprivation of the basic human need at issue; (2) the
likelihood of reducing the risk of an erroneous decision; and
(3) the nature and severity of potential consequences for the
unrepresented party regarding the basic human need at stake if
representation is not provided.
This bill also contains various findings and declarations,
including the following statement concerning the impact of
unrepresented litigants on the judicial system:
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.
4. Critical issues affecting basic human needs
This bill would authorize pilot projects which provide legal
representation to low-income persons who require legal services
in civil matters involving critical issues affecting basic human
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needs. As noted above, there has been a growing movement to
provide legal representation to low-income litigants in matters
where basic human needs are at stake. For example, in 2007, the
California Commission on Access to Justice recommended in its
Action Plan for Justice that local pilot projects be funded in
order to provide "a continuum of service, including full
representation, for high priority needs." The Action Plan
recommended a "coordinated continuum of responses, including
full representation where appropriate, to specific, basic legal
needs faced by individuals with limited or no access to legal
assistance in those communities." The Action Plan further
stated:
Because legal representation plays such a crucial role in
meaningful access to justice, Chief Justice Ronald M. George
recently proposed developing pilot projects aimed at providing
full representation for low-income litigants in a limited
category of cases, such as family law and housing in which
important individual rights are involved.
This bill would similarly focus on those cases in the following
critical cases in which an individual's basic human needs are
affected: (1) housing-related matters; (2) domestic violence and
civil harassment restraining orders; (3) probate
conservatorships; (4) guardianships of the person; (5) elder
abuse; or (6) actions by a parent to obtain sole legal or
physical custody of a child.
This bill would specify that no more than 20 percent of
available funds may be directed to projects regarding civil
matters involving actions by a parent to obtain sole legal or
physical custody of a child. This language was included to cap
the amount of funding that might go to projects dealing with
these kinds of cases, however there may be unmet need in
specific communities beyond this amount. Because of the large
and recognized need to support assistance to low-income persons
in these kinds of cases, the committee may wish to discuss with
the author the level of the cap.
5. Study by Judicial Council to evaluate the effectiveness and
continued need for the program
In its Action Plan for Justice, the California Commission on
Access to Justice recognized the importance of data collection,
noting "[t]he pilot projects should be designed so as to enable
the gathering of data and information California needs to
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determine the costs and infrastructure requirements involved in
fully meeting the legal needs of the poor."
This bill accordingly would require the Judicial Council to
report to the Governor and the Legislature on or before March 1,
2015, and every three years thereafter regarding the
effectiveness and continued need for the pilot program as well
as any findings and recommendations. The study must include the
percentage of funding by case type and data on the impact of
counsel on equal access to justice and the effect on court
administration and efficiency. The report must also describe
the benefits-both to the clients and the courts-of providing
representation to those who were not previously represented as
well as strategies and recommendations for maximizing the
benefit of that representation in the future.
6. Funding mechanism
This bill would specify that $10 of certain fees for various
court services be deposited into the Trial Court Trust Fund and,
beginning July 1, 2011, used by the Judicial Council for
implementing and administering the civil representation pilot
program created by the bill. Those fees include fees for
services such as, among other things, 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.
A previous version of this bill would have increased by $10 the
fees for these court services. While these provisions were
opposed at the time by the California Association of Collectors,
the increases were removed from the bill on June 30, 2009 and
inserted into SBx4 13 (Ducheny, Ch. 22, Stats. 2009-10 Fourth
Extraordinary Session), the courts budget trailer bill. As a
result, the fees for these various court services have been
increased pursuant to the recently enacted budget agreement.
This bill no longer increases these fees, but instead simply
provides that $10 of the various fees shall be deposited into
the Trial Court Trust Fund and, beginning July 1, 2011, used by
the Judicial Council for implementing and administering the
civil representation pilot program created by the bill.
7. Clarifying amendment necessary should the bill be returned to
the Senate Floor
Because this bill has been referred to this committee pursuant
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to Senate Rule 29.10, the committee is not able to amend the
bill. The bill may be amended, however, when it is returned to
the Senate Floor and the author has indicated that he intends to
amend the bill at that time to address chaptering out issues.
The following amendment is also necessary at that time in order
to clarify the intent of the bill regarding the use of the fees
by the Judicial Council for the civil representation pilot
program:
On page 20, line 22, strike ". Commencing July 1, 2011, these
amounts shall be" and insert "and, beginning July 1, 2011,"
The author has indicated a willingness to amend the bill in this
manner.
Support : AIDS Legal Referral Panel; Bet Tzedek Legal Services;
California Advocates for Nursing Home Reform; California
Alliance for Retired Americans; California Commission on Access
to Justice; California Indian Legal Services; California Rural
Legal Assistance Foundation; Center for California Homeowner
Association Law; Central California Legal Services, Inc.; City
of Santa Monica; Congress of California Seniors; Consumer
Attorneys of California; 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; Public Law Center; State Bar of
California; Watsonville Law Center; Western Center on Law and
Poverty; Justice Earl Johnson, Jr. (Ret.); Hon. Douglas P.
Miller, Associate Justice, Court of Appeal, Fourth District,
Division Two; Hon. James Lambden, Associate Justice, Court of
Appeal, First Appellate District, Division Two; Hon. Arthur
Gilbert, Presiding Justice, Court of Appeal, Second Appellate
District, Division Six; Hon. James Herman, Superior Court of
California, County of Santa Barbara, Hon. Steven Austin,
Superior Court of California, County of Contra Costa
Opposition : California Association of Collectors (to a prior
version of the bill; See Comment 6)
HISTORY
Source : Author
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Related Pending Legislation : AB 663 (Jones), which relates to
use of the term "legal aid," is currently in the Senate
Appropriations Committee.
Prior Legislation : AB 3050 (Jones, 2008), which contained
similar provisions to this bill regarding use of the term "legal
aid," was vetoed.
Prior Vote :
Assembly Judiciary Committee (Ayes 7, Noes 2)
Assembly Appropriations Committee (Ayes 12, Noes 5)
Assembly Floor (Ayes 50, Noes 29)
Senate Judiciary Committee (Ayes 3, Noes 2)
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