BILL ANALYSIS �
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THIRD READING
Bill No: AB 852
Author: Dickinson (D)
Amended: 4/9/14 in Senate
Vote: 27 - Urgency
PRIOR VOTES NOT RELEVANT
SUBJECT : State Bar of California: enforcement actions
SOURCE : State Bar of California
DIGEST : This bill generally allows the State Bar of
California (State Bar) to bring a civil action for any violation
of the existing prohibitions on the unauthorized practice of law
(UPL).
Senate Floor Amendments of 4/9/14 remove contents of this bill
related to an exemption from the California Environmental
Quality Act and insert the current contents related to the State
Bar's ability to bring a civil action for violations related to
the UPL, and add an urgency clause.
ANALYSIS : Under existing law, no person can practice law
unless the person is an active member of the State Bar. The
State Bar has the authority to bring a civil action to enjoin
violations of existing law which prohibits the UPL.
This bill:
1. Allows the State Bar to bring a civil enforcement action for
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the UPL in which the court shall impose civil penalties for
violations and award reasonable attorney's fees and costs to
the State Bar.
2. Allows the State Bar to annually report specified
information (complaints, requests for enforcement,
enforcement actions and penalties) about UPL to the Attorney
General and other public prosecutors and to the Senate
Judiciary Committee and the Assembly Judiciary Committee.
Background
The State Bar is a public corporation and is currently governed
by a 23-member Board of Trustees. Attorneys who wish to
practice law in California generally must be admitted and
licensed in this state and must be a member of the State Bar.
As of May 2013, the State Bar had 178,050 active members and
51,985 inactive members, which represents a slight annual
increase in both active members and inactive members. Total
State Bar membership is listed at 242,738, which includes 2,122
judge members and 10,580 members who are "Not Eligible to
Practice Law."
Under existing law, no person can practice law unless the person
is an active member of the State Bar. With regards to the
history and scope of that general prohibition, the California
Supreme Court observed:
The California Legislature enacted [the prohibition on the
unauthorized practice of law (UPL)] in 1927 as part of the
State Bar Act (the Act), a comprehensive scheme regulating the
practice of law in the state. Since the Act's passage, the
general rule has been that, although persons may represent
themselves and their own interests regardless of State Bar
membership, no one but an active member of the State Bar may
practice law for another person in California. The
prohibition against unauthorized law practice is within the
state's police power and is designed to ensure that those
performing legal services do so competently.
Although the Act did not define the term "practice law," case
law explained it as "'the doing and performing services in a
court of justice in any matter depending therein throughout
its various stages and in conformity with the adopted rules of
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procedure.'" (Birbrower, Montalbano, Condon & Frank v.
Superior Court (1998) 17 Cal.4th 119, 127-128.)
In addition to the general UPL prohibition, existing law
specifically provides that any person advertising or holding
himself /herself out as practicing or entitled to practice law
who is not an active member of the State Bar, or otherwise
authorized to practice law, is guilty of a misdemeanor. The
State Bar has the authority to bring a civil action enjoin to
violations of those and other provisions that similarly prohibit
the UPL. Despite those provisions, an article by Laura Ernde in
the February 2013 California Bar Journal noted continued
difficulty in addressing the UPL by certain individuals,
specifically:
In California, the State Bar gets hundreds of complaints a
year about individuals and businesses practicing law without a
license, claiming that they can solve legal problems for
consumers, Assistant Chief Trial Counsel Dane Dauphine said
[]. Because it doesn't have jurisdiction over non-attorneys,
the State Bar generally tries to address the problem by
sending cease-and-desist letters to the offenders and
reporting the offenders to other law enforcement agencies,
Dauphine said. . . . UPL, is a crime punishable by a
misdemeanor conviction.
But in reality, law enforcement has other higher priorities to
address, State Bar Deputy Executive Director Robert Hawley
said. Many of the biggest abuses occur in immigrant
communities where people don't understand that the legal
system here is different than in their home countries. (Laura
Ernde, State Bar to look at limited-practice licensing
program, Feb. 2013, California Bar Journal
[as of June 20, 2013.)
Prior legislation . AB 888 (Dickinson, 2013) is substantially
similar to this bill and was vetoed by Governor Brown.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (Verified 4/11/14)
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State Bar of California (source)
ARGUMENTS IN SUPPORT : According to the author:
While the State Bar has the power to bring a civil action in
the superior court to enjoin the unauthorized practice of law,
that action is limited and does not allow the State Bar to
recover civil penalties, including sanctions for violating any
injunction.
The limit of this authority was recently highlighted by the
post-foreclosure scam where businesses would promise to help
homeowners remain in their homes for a period of time after
they had already been foreclosed on. Perpetrators who were
not attorneys, but who would purport to be acting as
attorneys, accepted payments for services and often did not
provide any of those services.
Many times, these perpetrators will simply move to a different
location and set up a new shop, often acting under a different
business name.
AL:dk 4/14/14 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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