BILL ANALYSIS �
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
AB 2684 (Committee on Judiciary)
As Amended May 8, 2012
Hearing Date: July 3, 2012
Fiscal: No
Urgency: No
RD
SUBJECT
Civil Actions: interpreter costs: indigent
DESCRIPTION
Existing law allows for a prevailing party to recover certain
specified costs. This bill would add court interpreter fees for
a qualified court interpreter authorized by the court for an
indigent person represented by a pro bono attorney, as defined.
Additionally, this bill seeks to promote additional pro bono
support by allowing financial contributions to legal aid
organizations, as specified, to help meet a state contractor's
pro bono goals.
BACKGROUND
The California Code of Civil Procedure permits certain costs to
be recovered by a prevailing party, as specified. Until last
year, there was no provision providing for recovery of costs for
court interpreters provided to non-English speakers in civil
cases. AB 1403 (Committee on Judiciary, Ch. 409, Stats. 2011),
among other things, provided a limited remedy by providing for
recovery of costs for qualified court interpreters authorized by
the court for indigent non-English speakers who are represented
by a qualified legal services project, as specified under the
Business and Professions Code.
This bill, a follow-up to AB 1403, would add that court
interpreter fees can be recovered by a prevailing party for a
qualified court interpreter authorized by the court for an
indigent non-English speaker who is represented by a pro bono
(more)
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attorney, as defined.
In addition, the California Business and Professions Code
requires that any contract with the state for legal services
that exceeds $50,000 include a certification by the contracting
law firm that it agrees to make a good faith effort to provide a
minimum number of hours of pro bono legal services, as defined,
during each year of the contract. Separately, the Business and
Professions Code permits a lawyer to fulfill his or her pro bono
goals in part by providing financial support to organizations
providing free legal services to persons of limited means equal
to, at minimum, the approximate value of the hours of pro bono
legal service that he or she would otherwise have provided.
This bill would also recognize that financial contributions to
legal aid organizations can help to meet a state contractor's
pro bono goals.
CHANGES TO EXISTING LAW
1. Existing law defines "indigent person" as a person whose
income is: (1) 125 percent or less of the current poverty
threshold as specified; or (2) who is eligible for
Supplemental Security Income or free services under the Older
Americans Act or Developmentally Disabled Assistance Act.
(Bus. & Prof. Code Sec. 6213(d).)
Existing law provides that except as otherwise provided by
statute, a prevailing party, as defined, is entitled as a
matter of right to recover costs in any action or proceeding.
(Code Civ. Proc. Sec. 1032(a)(5).)
Existing law enumerates the items allowable as costs under
Section 1032, including, among other things:
filing, motion, and jury fees;
court reporter fees as established by statute;
court interpreter fees for a qualified court interpreter
authorized by the court for an indigent person represented
by a qualified legal service project, as specified; and
any other item that is required to be awarded to the
prevailing party pursuant to statute as an incident to
prevailing in the action at trial or on appeal. (Code Civ.
Proc. Sec. 1033.5(a).)
Existing law defines a pro bono attorney as any attorney, law
firm, or legal corporation, licensed to practice law in this
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state, that undertakes, without charge to the party, the
representation of an indigent person, referred by a qualified
legal services project, qualified support center, or other
qualified project, in a case not considered to be fee
generating, as defined. (Bus. & Prof. Code Sec. 8030.4(d).)
This bill would add to the existing authorization for recovery
of court interpreter fees by prevailing parties under Section
1033.5 of the Code of Civil Procedure above, where the court
has authorized a qualified court interpreter for an indigent
person who is represented by a pro bono attorney, as defined.
2. Existing law requires that any contract with the state for
legal services that exceeds $50,000 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 services, as
defined, during each year of the contract equal to the lesser
of either: (1) 30 multiplied by the number of full-time
attorneys in the firm's offices in the state, with the number
of hours prorated on an actual day basis for any contract
period of less than a full year, or (2) 10 percent of its
contract with the state, as specified. (Bus. & Prof. Code
Sec. 6072(a).)
Existing law 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, and that every lawyer
authorized and privileged to practice law in California is
expected to make a contribution. Existing law provides that in
some circumstances, it may not be feasible for a lawyer to
directly provide pro bono services and, 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. Existing law specifies
certain factors that the lawyer should consider in deciding to
provide financial support. (Bus. & Prof. Code Sec. 6073.)
This bill would specify in Section 6072 of the Business and
Professions Code that the contracting firm must agree to make
a good faith effort to provide, during the duration of the
contract, a minimum number of hours of pro bono legal
services, or an equivalent amount of financial contributions
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to qualified legal service projects and support centers, as
defined, during each year of the contract equal to the lesser
of two specified formulas.
This bill would add a reference to financial contributions
wherever reference is made to providing pro bono legal
services.
COMMENT
1. Stated need for the bill
According to the author:
The Assembly Judiciary Committee has held many hearings on the
legal aid funding crisis precipitated by the economic
recession as well as the lack of civil court interpreters - a
problem made worse by recent and ongoing budget cuts.
This bill follows upon last year's AB 1403, to facilitate the
provision of court interpreters when they are determined to be
necessary for indigent parties in civil matters. AB 1403
allowed indigent parties to recover the cost of court
interpreters when they are the prevailing party and are
represented without charge by a qualified nonprofit legal
services organization. This bill would simply allow for the
same cost recovery when the matter is handled by a pro bono
attorney affiliated with a qualified legal services
organization. Only cases that are not considered to be fee
generating would be covered. Doing so would also help to
expand access to interpreter services at a time when court
budget cuts are a significant obstacle to court-provided
interpreters. Despite budget limitations, our courts must
increasingly serve a growing number of parties who need
assistance with English, a time-consuming process that
frequently causes significant delays in court proceedings for
all court users. Making professional interpreters more widely
available will assist the court in handling matters
expeditiously while limiting the need to rely on court
interpreters and other court personnel.
This bill �also] promotes legal pro bono support by counting
the financial contributions to nonprofit legal aid groups made
by lawyers and law firms who are state contractors. Under
existing law, contracts for legal services of more than
$50,000 must include a certification that the contracting firm
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will make a good faith effort to provide direct pro bono
services during the period of the contract. (Bus. & Prof.
Code section 6072.) A separate provision of existing law
recognizes that lawyers can help to meet their pro bono goals
by making financial contributions to legal aid organizations
in addition to or in lieu of providing direct pro bono
services. (Bus. & Prof. Code section 6073.) This bill more
explicitly links these provisions by recognizing that
financial contributions to legal aid organizations can help to
meet a state contractor's pro bono goals.
2. Allows for recovery of court interpreter fees if an indigent
non-English speaker is represented by a pro bono attorney
California law allows for prevailing parties to recover certain
costs, as specified. This bill adds that a prevailing party may
recover fees for a qualified court interpreter authorized by the
court for indigent non-English speakers represented by pro bono
attorneys, as specified.
Last year, AB 1403 (Committee on Judiciary, Ch. 409, Stats.
2011) was enacted to allow prevailing parties to recover fees
for qualified court reporters authorized by the court for
indigent non-English speakers, where that person was represented
by a qualified legal services project. In other words, these are
fees that were expended on qualified professional court
reporters that are not provided by the court, but are instead
paid for by the legal services project representing an indigent
non-English speaker.
This bill would, in a similarly limited fashion, allow for
recovery of those fees by prevailing parties where the court
authorized a qualified court interpreter and the indigent
non-English speaker is represented by a pro bono attorney,
specifically defined as an attorney, law firm, or legal
corporation that undertakes, without charge to the party, the
representation of an indigent person, referred by a qualified
legal services project, qualified support center, or other
qualified project, in a case not considered to be fee
generating.
Proponents of this bill argue that "�m]any Californians,
including victims of domestic violence and others in civil court
proceedings, are not proficient in English and need language
interpreters to obtain meaningful access to the court system in
civil matters. AB 2684 will promote access to justice,
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efficient court administration, and greater public trust and
confidence in the legal system by adding court interpreter fees
for a qualified court interpreter authorized by the court for an
indigent person represented by a pro bono attorney to the
allowable costs under California Code of Civil Procedure Section
1033.5(a)."
From a policy standpoint, it does not seem unreasonable to
provide for recovery of such fees where the case involved an
indigent person, authorization from the court was obtained for a
qualified court interpreter, and the party ultimately
prevailed-especially when the representing attorney undertook
the case without charge to the party. Moreover, where such
recovery would have been allowed if the indigent person had been
represented by a qualified legal services project, it arguably
appears consistent with existing law to allow for recovery where
it is a qualifying pro bono attorney that is representing that
same person.
3. Allows financial contributions as one form of pro bono
support that can satisfy the pro bono obligations of state
contractors
The bill would also seek to encourage further pro bono services
by firms who seek to contract with the state and are statutorily
required to commit to make a good faith effort to provide,
during the duration of the contract, a minimum number of hours
of pro bono legal services, as specified, during each year of
the contract. Under existing law such firms must commit to
provide the lesser of either: (1) 30 multiplied by the number of
full-time attorneys in the firm's offices in the state, with the
number of hours prorated on an actual day basis for any contract
period of less than a full year, or (2) 10 percent of its
contract with the state, as specified. (Bus. & Prof. Code Sec.
6072(a).) This bill would specify that a firm could meet the
requirement either by committing to make a good faith effort to
provide, during the duration of the contract, a minimum number
of hours of pro bono services (as already stated under existing
law) or an equivalent amount of financial contributions to
qualified legal services projects and support centers, as
defined, during each year of the contract, equal to the lesser
amount calculated by the two specified formulas.
This does not appear to expand upon the existing requirement or
dilute it, but merely recognizes that existing law allows pro
bono services can be provided in this additional manner --by
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making equivalent financial contributions. (See Bus. & Prof.
Code Sec. 6073.) In doing so, the bill allows for more routes
by which firms seeking to contract with the state may provide
pro bono support when determining if they can make the
commitment required under law. It would also arguably encourage
pro bono support that takes the form of financial support to
certain nonprofit legal aid organizations.
Support : Legal Aid Association of California; OneJustice
Opposition : None Known
HISTORY
Source : None Known
Related Pending Legislation : None Known
Prior Legislation : AB 1403 (Committee on Judiciary, Ch. 409,
Stats. 2011) See Background
Prior Vote :
Assembly Floor (Ayes 59, Noes 14)
Assembly Judiciary Committee (Ayes 8, Noes 2)
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