BILL ANALYSIS
AB 590
Page 1
REPLACE 09/10/09- PER COMMITTEE CONSULTANT
CONCURRENCE IN SENATE AMENDMENTS
AB 590 (Feuer)
As Amended September 4, 2009
Majority vote
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|ASSEMBLY: |50-29|(June 1, 2009) |SENATE: |23-13|(September 9, |
| | | | | |2009) |
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Original Committee Reference: JUD.
SUMMARY : Promotes access to justice for low-income
Californians. Specifically, this bill :
1)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.
2)Establishes a fully self-supported pilot project by the
Judicial Council (JC) for the appointment of legal
representation for unrepresented low-income parties in civil
matters involving critical issues, such as domestic violence,
child custody and elder abuse 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 unrepresented litigants to be handled
more effectively and efficiently.
3)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,
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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)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, 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.
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.
The Senate amendments delay implementation of the project for
two years, impose a sunset on the pilot program and on existing
fees, allow greater support for family law cases to the extent
funding is available, and clarify the process for subsequent
distributions, if any, as well as the content of the JC's
report.
AS PASSED BY THE ASSEMBLY , this bill was substantially the same
as described above.
FISCAL EFFECT : According to the Assembly Appropriations
Committee, estimated annual revenues to the Trial Court Trust
Fund from the existing $10 fee 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 : 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, family law, probate conservatorships and
guardianships of the person, housing, 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.
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.
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.
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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. 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 and the issues at stake are so
fundamental to any system of justice that they must be decided
based on the law and the evidence, not by supposition or
default. The pilot is intended to address the discrepancy and
risk of error that arises when one party is represented by
counsel and the other is not, a recurrent disparity that
according to data characterizes particular types of cases,
creates the greatest challenges to the essential and appropriate
operation of the judicial system, and for which there are no
effective alternatives to provide counsel.
The bill also carries forward a separate recommendation of the
Access Commission to outlaw legal aid fraud.
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Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334
FN: 0003111