BILL ANALYSIS �
AB 1865
Page 1
Date of Hearing: April 17, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1865 (Alejo) - As Amended: April 9, 2012
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT : RESIDENTIAL TENANCIES: EVICTIONS: NOTICES
KEY ISSUE : SHOULD THE COURT NOTICE SENT TO ALL DEFENDANTS UPON
THE FILING OF AN EVICTION CASE INCLUDE ADDITIONAL CONTACT
INFORMATION FOR ONE OR MORE NONPROFIT BAR ASSOCIATIONS, IF
AVAILABLE, THAT PROVIDE LEGAL SERVICES TO PERSONS IN THE COURT
WHERE THE ACTION IS FILED?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This bill, sponsored by the Conference of California Bar
Associations, seeks to require the mandatory court notice sent
to each defendant in an unlawful detainer action to contain, in
addition to name and phone number of the county bar association,
the name and telephone number of one or more nonprofit bar
associations, if available, as determined by the court, that
provides legal services to persons in the court where the action
is filed. In addition, only associations that are duly
authorized by the State Bar as a lawyer referral service (LRS)
would be eligible to appear on the court notice. Supporters of
the bill contend that existing law unnecessarily restricts the
court from including more information about qualified lawyer
referral services available to tenants on the court notice that
is sent to tenants facing eviction. LRS are regulated both by
Section 6155 of the Business & Professions Code, and by a
detailed set of State Bar Rules and Regulations to ensure that
they comply with minimum professional standards or else face
losing certification by the Bar. As proposed to be amended,
four apartment associations that previously opposed the bill now
have withdrawn their opposition and are neutral. There is
currently no registered opposition to the bill.
SUMMARY : Expands court-provided notice to defendants in
eviction cases to provide information about lawyer referral
programs operated by nonprofit local bar associations.
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Specifically, this bill requires the mandatory court notice sent
to each defendant in an unlawful detainer action to contain, in
addition to name and phone number of the county bar association,
the name and telephone number of one or more nonprofit bar
associations, if available, as determined by the court, that
provides legal services to persons in the court where the action
is filed and that is duly authorized by the State Bar as a
lawyer referral service.
EXISTING LAW :
1)Requires the court clerk, upon the filing of any unlawful
detainer action, to mail to each defendant named in the action
a notice that contains on its face the following:
a) the name and telephone number of the county bar
association; and
b) the name and telephone number of an office or offices
funded by the Legal Services Corporation or qualified legal
service projects that receive funds distributed through the
State Bar program for legal services to indigent persons,
that provide legal services to low-income persons in the
county in which the action was filed. (Code of Civil
Procedure Section 1161.2.)
2)Prohibits a lawyer referral service from being owned or
operated, in whole or in part, directly or indirectly, by
those lawyers to whom, individually or collectively, more than
20 percent of referrals are made. Further provides that a
referral service that is owned or operated by a bar
association shall be deemed to be owned or operated by its
governing committee so long as the governing committee is
constituted and functions in the manner prescribed by the
minimum standards. (Business and Professions Code Section
6155(b).)
3)Requires the State Bar, with the approval of the Supreme
Court, to formulate and enforce rules and regulations which,
among other things, do the following:
a) Establish minimum standards for lawyer referral
services. The minimum standards shall include provisions
ensuring that panel membership shall be open to all
attorneys practicing in the geographical area served who
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are qualified by virtue of suitable experience, and
limiting attorney registration and membership fees to
reasonable sums which do not discourage widespread attorney
membership.
b) Require that an entity seeking to qualify as a lawyer
referral service register with the State Bar and obtain
from the State Bar a certificate of compliance with the
minimum standards for lawyer referral services.
c) Require that, to increase access to the justice system
for all Californians, lawyer referral services establish
separate ongoing activities or arrangements that serve
persons of limited means.
d) Require each lawyer who is a member of a certified
lawyer referral service to comply with all applicable
professional standards, rules, and regulations, and to
possess a policy of errors and omissions insurance, as
specified. (Business and Professions Code Section
6155(f).)
4)Provides that cause for denial of certification, or
recertification, or revocation of certification of a lawyer
referral service shall include, but not be limited to,
noncompliance with the statutes or minimum standards governing
lawyer referral services. (Business and Professions Code
Section 6155(g).)
COMMENTS : This bill, sponsored by the Conference of California
Bar Associations, seeks to require the mandatory court notice
sent to each defendant in an unlawful detainer action to
contain, in addition to name and phone number of the county bar
association, the name and telephone number of one or more
nonprofit bar associations, if available, that provides legal
services to persons in the court where the action is filed. In
addition, only associations that are duly authorized by the
State Bar as a lawyer referral service would be eligible to
appear on the court notice.
Because the bill limits the possible candidates for inclusion on
the notice to those "that provide legal services in the court
where the (unlawful detainer) action is filed," it is thought
that the court in its wisdom will generally be aware, or easily
can be made aware, of the presence of such associations
operating in the court. Nothing in this bill or in existing law
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authorizes a nonprofit association to mount a formal legal
challenge or appeal to any court notice that does not include
its specific contact information.
According to the author, existing law unnecessarily restricts
the court from including more information about legal services
available to tenants on the court notice that is sent to tenants
facing eviction. For example, a nonprofit bar association in
Placer County may be qualified and available to serve tenants
facing eviction from properties in adjacent Sacramento County,
but current law prevents that association's contact information
from being made available through the court notice to tenants
who might benefit from it.
This bill furthers the legislative intent of SB 892 (1991) to
help tenants facing eviction find competent legal
representation. Existing law requires the court notice sent to
tenants facing eviction to provide the name and phone number of
the county bar association, as well as the name and number of
offices or legal service projects, as specified, that provide
legal services to low-income persons in the county in which the
action was filed. This latter requirement ensures that the
notice provide the contact information for at least one legal
services provider serving persons in that area, other than the
county bar association, that is funded by the federal Legal
Services Corporation (LSC) or that receive funds through the
State Bar program for legal services to indigent persons,
pursuant to Business & Professions Code Section 6216. In short,
existing law seems intended to help connect defendants in
unlawful detainer actions to a lawyer who may provide legal
counsel or advice, either through the bar association's
certified lawyer referral service or a LSC-funded or Section
6216-funded legal service provider.
In 1991, the Legislature passed and the Governor signed SB 892
(Lockyer), which enacted many of the provisions of CCP Section
1161.2 to respond to a perceived crisis stemming from
unscrupulous eviction defense services that used records of
court filings in civil cases to solicit and defraud tenants.
The legislative intent language of SB 892 noted that there "are
many law firms and organizations, such as those funded by the
federal Legal Services Corporation, which provide competent,
thorough, and ethical legal advice and representation to
tenants. These organizations do not find it necessary to
solicit clients at their homes but instead respond to requests
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for legal assistance." Legal services programs operated by
local county bar associations were included in the statute
because they met this description. The author contends that
nonprofit bar associations, authorized by the State Bar as a
lawyer referral service, also fit this description and thus the
addition of their contact information to the court notice
furthers the intent of the statute to assist tenants seeking
legal counsel with additional information about resources
available to them.
Requirements for lawyer referral services. A "lawyer referral
service" (LRS) operates for the direct or indirect purpose of
referring potential clients to lawyers. (Rule 4, "Rules and
Regulations of the State Bar of California Pertaining to Lawyer
Referral Services.") The purposes of a LRS include (1) to
provide a way in which any person may be referred to a
qualified, insured lawyer who is able to render and is
interested in rendering needed legal services; and (2) to
provide information about lawyers and the availability of legal
services which will aid the public in their selection of a
lawyer; (Rule 5.1.) An entity seeking to qualify as a lawyer
referral service must register with the State Bar and obtain
from the State Bar a certificate of compliance with the minimum
standards for lawyer referral services. (BPC Section 6155(f).)
Certification shall be renewed at least every two years, and
denial of certification or recertification may occur if the
State Bar determines noncompliance with either statutory
requirements or minimum standards governing LRS. (BPC Section
6155(g).) An LRS must establish rotational procedures to assure
fair and impartial referrals (Rule 13.1), and subject matter
panels require a minimum of four attorneys to ensure a
legitimate rotation. Those selected for the subject matter
panel are reviewed by the governing committee, which then
determines whether the member qualifies for that panel, ensuring
that an attorney who is selected has sufficient experience in
that subject matter. (Rule 12.4)
As proposed to be amended, this bill clarifies that the
additional nonprofit association appearing on the notice is
determined by the court. In response to the concerns of several
apartment associations, the author proposes to amend the bill to
clarify that the additional contact information of the nonprofit
association(s) appearing on the notice, as required by this
bill, is determined by the court. The proposed amendment is not
intended to allow the court pure discretion to decide whether to
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include additional contact information for a nonprofit bar
association or not. The notice must include the additional
information of at least one such nonprofit association, if one
is available that operates an authorized LRS. The amendment is:
On page 3, line 11, after "associations" insert ", as
determined by the court,"
As a result of this proposed amendment, four apartment
associations have notified the author and the Committee that
they have now removed their opposition to the bill.
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (sponsor)
City of Santa Monica
Consumer Attorneys of California
Santa Clara County La Raza Lawyers Association
Watsonville Law Center
Western Center on Law and Poverty
Opposition (as proposed to be amended)
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334