BILL NUMBER: AB 2878 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 31, 2016
AMENDED IN SENATE AUGUST 19, 2016
AMENDED IN ASSEMBLY JUNE 2, 2016
AMENDED IN ASSEMBLY MAY 27, 2016
AMENDED IN ASSEMBLY APRIL 18, 2016
INTRODUCED BY Committee on Judiciary (Assembly Members Mark Stone
(Chair), Alejo, Chau, Chiu, Cristina Garcia, and Holden)
FEBRUARY 25, 2016
An act to amend Sections 6001, 6001.1,
6008.6, 6011, 6013.1, 6013.3, 6013.5, 6015, 6016, 6019, 6021,
6022, 6026.7, 6029, 6030, 6060.2, 6060.25, 6086.5, 6140, and 6145 of,
to add Sections 6134 and 6140.56 to, to add and repeal Section
6075.6 of, and to repeal Sections 6008.5, 6009.7, 6012, 6013.2, 6018,
and 6026.5 of, the Business and Professions Code, relating to the
State Bar.
LEGISLATIVE COUNSEL'S DIGEST
AB 2878, as amended, Committee on Judiciary. Attorneys: State Bar:
board of trustees.
The State Bar Act provides for the licensure and regulation of
attorneys by the State Bar of California, a public corporation
governed by a board of trustees. That act requires 6 members of the
19-member board to be attorneys elected from State Bar Districts.
That act requires protection of the public to be the highest priority
for the State Bar and the board of trustees in exercising their
licensing, regulatory, and disciplinary functions and requires
protection of the public to be paramount whenever the protection of
the public is inconsistent with any other interest sought to be
promoted. That act provides that the State Bar is subject to the
Bagley-Keene Open Meeting Act and the California Public Records Act,
as specified. That act, until January 1, 2017, requires the board to
charge an annual membership fee for active members of up to $315 for
2016. The act requires the board of trustees to elect or select the
president, vice president, and treasurer of the State Bar, as
specified. Existing law prohibits the Legislature, when the board of
trustees places a charge upon or otherwise makes available all or any
portion of the income or revenue from membership fees for the
payment of security of an obligation of the State Bar and so long as
any obligation remains unpaid, from reducing the maximum membership
fee below the maximum in effect at the time the obligation is created
or incurred and provides that this provision constitutes a covenant
to the holder of such an obligation. The act requires the board of
trustees to contract with the California State Auditor's Office to
conduct a performance audit of the State Bar's operations, as
specified. That act establishes the State Bar Court to act in the
place of the board of trustees in the determination of disciplinary
proceedings, as specified. That act requires the board to appoint a
lawyer admitted to practice in California to serve as chief trial
counsel, as specified. That act authorizes the State Bar to raise
additional revenue by any lawful means, including, but not limited
to, the creation of foundations or not-for-profit corporations. That
act requires the board to establish and administer a Client Security
Fund to relieve or mitigate pecuniary losses caused by dishonest
conduct of active members of the State Bar, as specified.
This bill would provide that the board of trustees consist of no
more than 19 members and no fewer than 13 members and would require
the board to transition to a 13-member board, as specified. The bill
would remove from the board attorney members elected from State Bar
Districts and would make conforming changes. The bill would provide
that each appointing body, when making appointments to the board
after December 31, 2016, should consider appointing members who have
education or experience, or both, in one of 6 specified areas,
including public finance. The bill would require that a maximum of 6
members of the board be public members, as appointed by specified
entities, and would require members of the board to serve a term of 4
years. The bill would require the California Supreme
Court to select from the members of the board a chair and vice chair
instead of the board of trustees electing a president and vice
president. The bill would require members of the executive committee
of the board to include at least one member of the board appointed by
each appointing authority.
This bill would provide that protection of the public
requires that professional legal services are provided in a
competent, accessible, and ethical manner, and that the judicial
system functions in a fair, impartial, and just manner. The bill
would define protection of the public, for purposes of staffing and
resource allocations, as specified core functions of the State Bar,
including, administration of the bar admissions and law school
accreditation processes. The bill would provide that any
decision of the board raising antitrust concerns is subject to
review, modification, veto, or other appropriate action by the
California Supreme Court.
The bill would require the Office of Chief Trial Counsel to open a
nonattorney complaint against a person when the office becomes aware
of an allegation that a person not licensed to practice law in
California has practiced or held himself or herself out as practicing
law or entitled to practice law in the state and would require the
complaint to be evaluated and processed, as specified.
This bill would require the Attorney General to appoint a State
Bar enforcement program monitor prior to March 31, 2017, and would
require the program enforcement monitor to evaluate the disciplinary
system and procedures of the State Bar, as specified. The bill would
require the program enforcement monitor to submit an initial report
no later than October 1, 2019, and to issue a final report before
March 31, 2020. The bill would make these provisions inoperative on
March 31, 2020, and would repeal the provision as of January 1, 2021.
The bill would require the board of trustees to engage the
services of an independent national or regional public accounting
firm with at least 5 years of experience in governmental auditing for
an audit of its revenues, expenditures, reserves, and financial
statements for each fiscal year and would require the California
State Auditor, for the performance audit due in January 2017, to
review all of the State Bar's expenses, including, but not limited
to, executive salaries. The bill would also require California State
Auditor to conduct a performance audit evaluating the State Bar's
progress in certain areas, including correcting any issues raised in
prior California State Auditor audits, and would require the
California State Auditor to report its findings and recommendations,
as specified.
This bill would provide that access to records of the State Bar
Court is subject to the rules and laws applicable to the judiciary
instead of the California Public Records Act and would exempt the
State Bar Court from the Bagley-Keene Open Meeting Act.
This bill, until January 1, 2018, would require the board to
charge an annual membership fee in a specified amount for 2017. The
bill would repeal the provision prohibiting the Legislature from
reducing the maximum membership fee and would prohibit the State Bar
from creating any foundation or nonprofit corporations, as specified.
The bill would require the State Bar to conduct a thorough analysis
of the Client Security Fund and to submit a report to the Legislature
on its analysis of that fund by March 15, 2017, as specified.
Existing constitutional provisions require that a statute that
limits the right of access to the meetings of public bodies or the
writings of public officials and agencies be adopted with findings
demonstrating the interest protected by the limitation and the need
for protecting that interest.
This bill would make legislative findings to that effect.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6001 of the Business and Professions Code is
amended to read:
6001. The State Bar of California is a public corporation. It is
hereinafter designated as the State Bar.
The State Bar has perpetual succession and a seal and it may sue
and be sued. It may, for the purpose of carrying into effect and
promoting its objectives:
(a) Make contracts.
(b) Borrow money, contract debts, issue bonds, notes, and
debentures and secure the payment or performance of its obligations.
(c) Own, hold, use, manage, and deal in and with real and personal
property.
(d) Construct, alter, maintain, and repair buildings and other
improvements to real property.
(e) Purchase, lease, obtain options upon, acquire by gift,
bequest, devise, or otherwise, any real or personal property or any
interest therein.
(f) Sell, lease, exchange, convey, transfer, assign, encumber,
pledge, dispose of any of its real or personal property or any
interest therein, including without limitation all or any portion of
its income or revenues from membership fees paid or payable by
members.
(g) Do all other acts incidental to the foregoing or necessary or
expedient for the administration of its affairs and the attainment of
its purposes.
Pursuant to those powers enumerated in subdivisions (a) to (g),
inclusive, it is recognized that the State Bar has authority to raise
revenue in addition to that provided for in Section 6140 and other
statutory provisions. The State Bar is empowered to raise that
additional revenue by any lawful means. However, as of December 31,
2016, the State Bar shall not create any foundations or nonprofit
corporations.
The State Bar shall conspicuously publicize to its members in the
annual dues statement and other appropriate communications, including
its Web site and electronic communications, that its members have
the right to limit the sale or disclosure of member information not
reasonably related to regulatory purposes. In those communications
the State Bar shall note the location of the State Bar's privacy
policy, and shall also note the simple procedure by which a member
may exercise his or her right to prohibit or restrict, at the member'
s option, the sale or disclosure of member information not reasonably
related to regulatory purposes. On or before May 1, 2005, the State
Bar shall report to the Assembly and Senate Committees on Judiciary
regarding the procedures that it has in place to ensure that members
can appropriately limit the use of their member information not
reasonably related to regulatory purposes, and the number of members
choosing to utilize these procedures.
No law of this state restricting, or prescribing a mode of
procedure for the exercise of powers of state public bodies or state
agencies, or classes thereof, including, but not by way of
limitation, the provisions contained in Division 3 (commencing with
Section 11000), Division 4 (commencing with Section 16100), and Part
1 (commencing with Section 18000) and Part 2 (commencing with Section
18500) of Division 5, of Title 2 of the Government Code, shall be
applicable to the State Bar, unless the Legislature expressly so
declares. Notwithstanding the foregoing or any other law, pursuant to
Sections 6026.7 and 6026.11, the State Bar is subject to the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code) and,
commencing April 1, 2016, the Bagley-Keene Open Meeting Act (Article
9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division
3 of Title 2 of the Government Code).
SEC. 2. Section 6001.1 of the Business and
Professions Code is amended to read:
6001.1. (a) Protection of the public shall be the highest
priority for the State Bar of California and the board of trustees in
exercising their licensing, regulatory, and disciplinary functions.
Whenever the protection of the public is inconsistent with other
interests sought to be promoted, the protection of the public shall
be paramount.
(b) Protection of the public requires that professional legal
services are provided in a competent, accessible, and ethical manner
and that the judicial system functions in a fair, impartial, and just
manner. For purposes of staffing and resource allocations,
protection of the public is defined as the following core functions
of the State Bar in the following order of priority:
(1) Administration of the bar admissions and law school
accreditation processes, recordkeeping and licensing functions, and
the lawyer discipline system.
(2) Administration of programs that advance professional
competence and ethics, support the prevention of discipline problems
before they occur, address the unlawful practice of law, and support
the judicial selection process.
(3) Administration of programs that support the fair and equal
administration of justice, effective functioning of the legal system,
and diversity of the profession.
SEC. 3. SEC. 2. Section 6008.5 of
the Business and Professions Code is repealed.
SEC. 3. Section 6008.6 of the Business
and Professions Code is amended to read:
6008.6. (a) The State Bar shall award no
contract for goods, services, or both, for an aggregate amount in
excess of fifty thousand dollars ($50,000), or for information
technology goods, services, or both, for an aggregate amount in
excess of one hundred thousand dollars ($100,000), except pursuant to
the standards established in Article 4 (commencing with Section
10335) of Chapter 2 of Part 2 of Division 2 of the Public Contract
Code. Code and approval of the
board of trustees. The State Bar shall establish a request for
proposal procedure by rule, pursuant to the general standards
established in Article 4 (commencing with Section 10335) of Chapter 2
of Part 2 of Division 2 of the Public Contract Code. For the
purposes of this section, "information technology" includes, but is
not limited to, all electronic technology systems and services,
automated information handling, system design and analysis,
conversion voice, video, and data communications, network systems,
requisite facilities, equipment, system controls, stimulation,
electronic commerce, and all related interactions between people and
machines.
(b) The board of trustees shall adopt policies and procedures to
require board approval of any contract that could impact the State
Bar's ability to carry out its paramount duty to protect the public.
SEC. 4. Section 6009.7 of the Business and Professions Code is
repealed.
SEC. 5. Section 6011 of the Business and Professions Code is
amended to read:
6011. (a) The board shall consist of no more than 19 members and
no fewer than 13 members.
(b) It is the intent of the Legislature that the board consist of
no more than 19 members and no fewer than 13 members during the
period of transition from a 19-member board to a 13-member board. It
is the intent of the Legislature that the board decrease its size
without shortening, lengthening, or abolishing terms commencing prior
to December 31, 2016, with the ultimate goal of instituting a
13-member board no later than October 31, 2019. It is the intent of
the Legislature that this transition occur by the expiration of the
terms of the elected members who are serving on the board as of
December 31, 2016.
(c) When making appointments to the board on and after December
31, 2016, each appointing body should consider appointing members
with education or experience, or both, in at least one of the
following:
(1) Public finance.
(2) Public administration.
(3) Business or financial management.
(4) State government, particularly prior regulatory experience.
(5) Legal ethics.
(6) Immigration law.
SEC. 6. Section 6012 of the Business and Professions Code is
repealed.
SEC. 7. Section 6013.1 of the Business and Professions Code is
amended to read:
6013.1. (a) The Supreme Court shall appoint five attorney members
of the board pursuant to a process that the Supreme Court may
prescribe. These attorney members shall serve for a term of four
years and may be reappointed by the Supreme Court for one additional
term only.
(b) An attorney member elected pursuant to Section 6013.2 may be
appointed by the Supreme Court pursuant to this section to a term as
an appointed attorney member.
(c) The Supreme Court shall fill any vacancy in the term of, and
make any reappointment of, any appointed attorney member.
(d) When making appointments to the board, the Supreme Court
should consider appointing attorneys that represent the following
categories: legal services; small firm or solo practitioners;
historically underrepresented groups, including consideration of
race, ethnicity, gender, and sexual orientation; and legal academics.
In making appointments to the board, the Supreme Court should also
consider geographic distribution, years of practice, particularly
attorneys who are within the first five years of practice or 36 years
of age and under, and participation in voluntary local or state bar
activities.
(e) The State Bar shall be responsible for carrying out the
administrative responsibilities related to the appointment process
described in subdivision (a).
SEC. 8. Section 6013.2 of the Business and Professions Code is
repealed.
SEC. 9. Section 6013.3 of the Business and Professions Code is
amended to read:
6013.3. (a) One attorney member of the board shall be appointed
by the Senate Committee on Rules and one attorney member of the board
shall be appointed by the Speaker of the Assembly.
(b) An attorney member appointed pursuant to this section shall
serve for a term of four years. Vacancies shall be filled for the
remainder of the term. An appointed attorney member may be
reappointed pursuant to this section.
SEC. 10. Section 6013.5 of the Business and Professions Code is
amended to read:
6013.5. (a) Effective January 1, 2017, a maximum of six members
of the board shall be members of the public who have never been
members of the State Bar or admitted to practice before any court in
the United States.
(b) Each of these members shall serve for a term of four years.
Vacancies shall be filled for the remainder of the term.
(c) Effective January 1, 2017, one public member shall be
appointed by the Senate Committee on Rules and one public member
shall be appointed by the Speaker of the Assembly.
(d) Four public members shall be appointed by the Governor,
subject to the confirmation of the Senate.
(e) Each respective appointing authority shall fill any vacancy in
and make any reappointment to each respective office.
SEC. 11. Section 6015 of the Business and Professions Code is
amended to read:
6015. No person is eligible for attorney membership on the board
unless both of the following conditions are satisfied:
(a) He or she is an active member of the State Bar.
(b) Either:
(1) Prior to October 31, 2019, if elected, he or she maintains his
or her principal office for the practice of law within the State Bar
district from which he or she is elected.
(2) If appointed by the Supreme Court or the Legislature, he or
she maintains his or her principal office for the practice of law
within the State of California.
SEC. 12. Section 6016 of the Business and Professions Code is
amended to read:
6016. The term of office of each attorney member of the board
shall be four years and he or she shall hold office until his or her
successor is appointed and qualified. Vacancies shall be filled for
the remainder of the term.
The board of trustees may provide by rule for an interim board to
act in the place and stead of the board when because of vacancies
during terms of office there is less than a quorum of the board.
SEC. 13. Section 6018 of the Business and Professions Code is
repealed.
SEC. 14. Section 6019 of the Business and Professions Code is
amended to read:
6019. Each place upon the board for which a member is to be
appointed shall for the purposes of the appointment be deemed a
separate office.
SEC. 15. Section 6021 of the Business and Professions Code is
amended to read:
6021. (a) (1) The California Supreme Court shall
select from the members of the board a chair and a vice chair to
serve in the absence of the chair.
(2) The chair and vice chair shall assume the duties of their
respective offices at the conclusion of the annual meeting following
their appointment.
(b) The term of the board chair and vice chair shall be one year.
SEC. 16. Section 6022 of the Business and Professions Code is
amended to read:
6022. The secretary and treasurer of the State Bar shall be
selected annually by the board and need not be members of the State
Bar.
SEC. 17. Section 6026.5 of the Business and Professions Code, as
added by Section 3 of Chapter 537 of the Statutes of 2015, is
repealed.
SEC. 18. Section 6026.7 of the Business and Professions Code, as
added by Section 5 of Chapter 537 of the Statutes of 2015, is amended
to read:
6026.7. (a) The State Bar is subject to the Bagley-Keene Open
Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1
of Part 1 of Division 3 of Title 2 of the Government Code) and all
meetings of the State Bar are subject to the Bagley-Keene Open
Meeting Act.
(b) Notwithstanding any other law, the Bagley-Keene Open Meeting
Act shall not apply to the Judicial Nominees Evaluation Commission,
the Committee of Bar Examiners, or the State Bar Court.
(c) In addition to the grounds authorized in the Bagley-Keene Open
Meeting Act, a closed session may be held for those meetings, or
portions thereof, relating to both of the following:
(1) Appeals from decisions of the Board of Legal Specialization
refusing to certify or recertify an applicant or suspending or
revoking a specialist's certificate.
(2) The preparation, approval, grading, or administration of
examinations for certification of a specialist.
SEC. 19. Section 6029 of the Business and Professions Code is
amended to read:
6029. (a) The board may appoint such committees, officers and
employees as it deems necessary or proper, and fix and pay salaries
and necessary expenses.
(b) The members of the executive committee of the board shall
include at least one board member appointed by each of the following
appointing authorities:
(1) The Supreme Court.
(2) The Governor.
(3) The Speaker of the Assembly.
(4) The Senate Committee on Rules.
SEC. 20. Section 6030 of the Business and Professions Code is
amended to read:
6030. (a) The board shall be charged with the executive function
of the State Bar and the enforcement of the provisions of this
chapter.
(b) The violation or threatened violation of any provision of
Articles 7 (commencing with Section 6125) and 9 (commencing with
Section 6150) of this chapter may be enjoined in a civil action
brought in the superior court by the State Bar and no undertaking
shall be required of the State Bar.
(c) Any decision of the board raising antitrust concerns is
subject to review, modification, veto, or other appropriate action by
the California Supreme Court.
SEC. 21. Section 6060.2 of the Business and Professions Code is
amended to read:
6060.2. (a) All investigations or proceedings conducted by the
State Bar concerning the moral character of an applicant shall be
confidential and shall not be disclosed pursuant to any state law,
including, but not limited to, the California Public Records Act
(Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1
of the Government Code) unless the applicant, in writing, waives the
confidentiality.
(b) Notwithstanding subdivision (a), the records of the proceeding
may be disclosed in response to either of the following:
(1) A lawfully issued subpoena.
(2) A written request from a government agency responsible for
either the enforcement of civil or criminal laws or the professional
licensing of individuals that is conducting an investigation about
the applicant.
SEC. 22. Section 6060.25 of the Business and Professions Code is
amended to read:
6060.25. (a) Notwithstanding any other law, any identifying
information submitted by an applicant to the State Bar for admission
and a license to practice law and all State Bar admission records,
including, but not limited to, bar examination scores, law school
grade point average (GPA), undergraduate GPA, Law School Admission
Test scores, race or ethnicity, and any information contained within
the State Bar Admissions database or any file or other data created
by the State Bar with information submitted by the applicant that may
identify an individual applicant, other than information described
in subdivision (b), shall be confidential and shall not be disclosed
pursuant to any state law, including, but not limited to, the
California Public Records Act (Chapter 3.5 (commencing with Section
6250) of Division 7 of Title 1 of the Government Code).
(b) (1) This section does not prohibit the disclosure of any of
the following:
(A) The names of applicants who have passed any examination
administered, given, or prescribed by the Committee of Bar Examiners.
(B) Information that is provided at the request of an applicant to
another jurisdiction where the applicant is seeking admission to the
practice of law.
(C) Information provided to a law school that is necessary for the
purpose of the law school's compliance with accreditation or
regulatory requirements.
(D) Information provided to the National Conference of Bar
Examiners or a successor nonprofit organization in connection to the
State Bar's administration of any examination.
(2) This subdivision shall apply retroactively to January 1, 2016.
(c) Disclosure of any of the information in subparagraphs (B) to
(D), inclusive, of paragraph (1) of subdivision (b) shall not
constitute a waiver under Section 6254.5 of the Government Code of
the exemption from disclosure provided for in subdivision (a) of this
section.
SEC. 23. Section 6075.6 is added to the Business and Professions
Code, to read:
6075.6. (a) (1) The Attorney General shall appoint a State Bar
enforcement program monitor prior to March 31, 2017. The applicant
for the position shall have investigative experience, shall be
familiar with California laws and procedures, and, preferably, shall
be familiar with the rules and procedures of the State Bar lawyer
discipline system and relevant administrative procedures. The monitor
may be a state employee or his or her services may be provided
pursuant to contract.
(2) The Attorney General shall supervise the monitor and may
terminate or dismiss him or her from this position.
(b) (1) The enforcement program monitor shall monitor and evaluate
the disciplinary system and procedures of the State Bar. The
enforcement program monitor shall make his or her highest priority
the reform and reengineering of the State Bar's enforcement program
and operations and the improvement of the overall efficiency of the
State Bar's disciplinary system so that the State Bar is successfully
and consistently protecting the public.
(2) This monitoring duty shall include, but not be limited to, the
prioritization of cases most impacting public protection, improving
the timeframe for the handling of complaints and in the rendering of
initial decisions on complaints, the efficiency of the system, the
fairness and courtesy given to complainants, the adequacy of the
staffing and the budget allocated to the discipline section of the
State Bar, the reduction of the complaint backlog, the consistency in
the application of sanctions or discipline imposed, the
implementation of laws affecting discipline and the State Bar's
operations, disciplinary standards and rules, staff concerns
regarding disciplinary matters or procedures, and the State Bar's
cooperation with other governmental entities charged with enforcing
related laws and regulations that affect members of the State Bar.
(3) The monitor shall exercise no authority over the State Bar's
discipline operations or staff, however, the State Bar and its staff
shall cooperate with the program enforcement monitor, and the
State Bar shall provide data, information, and case files as
requested by the enforcement program monitor to perform all of his or
her duties.
(c) The enforcement program monitor shall submit an initial
written report of his or her findings and conclusions to the State
Bar, the California Supreme Court, and the Legislature no
later than October 1, 2019, and be available to make oral reports to
each if requested to do so. The initial report shall include an
analysis of the sources of information that resulted in each
disciplinary action imposed since January 1, 2016. The monitor may
also provide additional information to either the California
Supreme Court, the State Bar, or the Legislature at his or her
discretion or at the request of the California Supreme
Court, the State Bar, or the Legislature. The program enforcement
monitor shall make his or her reports available to the public or the
media. The monitor shall make every effort to provide the State Bar
with an opportunity to reply to any facts, findings, issues, or
conclusions in his or her reports with which the State Bar may
disagree.
(d) The enforcement program monitor shall issue a final report
prior to March 31, 2020.
(e) This section shall become inoperative on March 31, 2020, and
as of January 1, 2021, shall be repealed.
SEC. 24. Section 6086.5 of the Business and Professions Code is
amended to read:
6086.5. The board of trustees shall establish a State Bar Court,
to act in its place and stead in the determination of disciplinary
and reinstatement proceedings and proceedings pursuant to
subdivisions (b) and (c) of Section 6007 to the extent provided by
rules adopted by the board of trustees pursuant to this chapter. In
these proceedings the State Bar Court may exercise the powers and
authority vested in the board of trustees by this chapter, including
those powers and that authority vested in committees of, or
established by, the board, except as limited by rules of the board of
trustees within the scope of this chapter.
Access to records of the State Bar Court shall be governed by
court rules and laws applicable to records of the judiciary and not
the California Public Records Act (Chapter 3.5 (commencing with
Section 6250) of Division 7 of Title 1 of the Government Code).
For the purposes of Sections 6007, 6043, 6049, 6049.2, 6050, 6051,
6052, 6077 (excluding the first sentence), 6078, 6080, 6081, and
6082, "board" includes the State Bar Court.
Nothing in this section shall authorize the State Bar Court to
adopt rules of professional conduct or rules of procedure.
The Executive Committee of the State Bar Court may adopt rules of
practice for the conduct of all proceedings within its jurisdiction.
These rules may not conflict with the rules of procedure adopted by
the board, unless approved by the California Supreme
Court.
SEC. 25. Section 6134 is added to the Business and Professions
Code, to read:
6134. (a) When the Office of the Chief Trial Counsel becomes
aware of an allegation that a person not licensed to practice law in
California has practiced or held himself or herself out as practicing
law or entitled to practice law in the state, the office's intake
unit shall open a nonattorney complaint against that person for
evaluation and processing.
(b) The intake unit shall open a case record in the office's case
management system with the complaint form received date. The
complaint form received date shall be the date the State Bar first
received the complaint. Evaluation and processing of the nonattorney
complaint shall include, but not be limited to, all of the following:
(1) Creation of a summary of the allegation or allegations in the
case record and assignment to staff, including inputting staff
assignment codes into the case management system.
(2) Identifying the source of the complaint.
(3) Identifying the relevant practice area of law, such as
immigration, loan modification, or debt resolution, and recording the
relevant practice area of law in the case record.
(4) Identifying whether the allegations include potential identity
theft of a licensed attorney's identity and, if so, contacting the
potential victim attorney to verify whether the attorney is aware of
the potential identify theft and whether he or she has notified law
enforcement.
(5) Evaluating the nonattorney complaint for unauthorized practice
of law allegations, which includes opening a corresponding attorney
complaint case record, if appropriate, such as in the case in which
the nonattorney complaint also identifies a licensed California
attorney potentially aiding or abetting the person in the
unauthorized practice of law.
(6) Seeking additional information from the complainant or other
sources, such as the Internet, when the nonattorney complaint does
not provide specific or sufficient facts to establish that the
unauthorized practice of law may have occurred.
(7) Determining whether to forward the complaint to the
enforcement unit for investigation.
(c) If the nonattorney complaint sufficiently alleges an
unauthorized practice of law violation, the intake unit shall do both
of the following:
(1) Forward the nonattorney complaint to the enforcement unit for
further action.
(2) Refer the matter to law enforcement or other appropriate
agency for consideration of criminal or other enforcement action, as
specified in subdivisions (f) and (g).
(d) If the nonattorney complaint sufficiently alleges the use of
"notario," "notario publico," or other words or phrases in violation
of Section 6126.7 or there is other evidence of a violation of
Section 6126.7, the intake unit shall forward the complaint to the
enforcement unit for further action.
(e) If the nonattorney complaint does not sufficiently allege an
unauthorized practice of law violation or a violation of Section
6126.7, the intake unit shall do all of the following:
(1) Notify the complainant in writing of the determination.
(2) Advise the complainant in writing of the opportunity to seek
reconsideration of the determination.
(3) Process the case for closure, including updating the case
record.
(f) The
intake unit's staff shall resolve nonattorney complaints by either:
(1) Forwarding the nonattorney complaint to the office's
enforcement unit.
(2) Closing the nonattorney complaint in the intake unit.
(g) (1) A nonattorney complaint alleging the unauthorized practice
of law shall be presumed to warrant a law enforcement referral to
federal, state, or local authorities, such as the United States
Attorney, the Attorney General, the local district attorney, local
county counsel, or local city attorney, for criminal or other
enforcement action.
(2) After the intake unit forwards a nonattorney complaint, the
office's enforcement unit shall make the referral required under
paragraph (1), where appropriate, and shall coordinate with law
enforcement, as appropriate, throughout the office's investigation of
the nonattorney complaint.
(3) The intake unit may, where warranted, refer nonattorney
complaints that do not allege the unauthorized practice of law to
another regulatory agency, such as the Bureau of Real Estate, the
Department of Consumer Affairs, the United States Securities and
Exchange Commission, the Federal Trade Commission, and the United
States Patent and Trademark Office.
(h) Staff of the intake unit shall evaluate nonattorney complaints
and strive to meet all of the following in at least 90 percent of
nonattorney complaints filed:
(1) Open a nonattorney complaint case record within five days from
the complaint form received date, as defined in subdivision (b).
(2) Complete the initial legal review of the nonattorney complaint
within 20 days from the complaint form received date.
(3) Process the nonattorney complaint to resolution, which means
closing the case or forwarding the case for investigation, within 60
days from the complaint form received date.
(i) Staff of the intake unit shall maintain processing activities
in the nonattorney complaint case record, including the recording and
tracking of other regulatory agency referrals made in connection
with a nonattorney complaint.
(j) All nonattorney complaints forwarded by the intake unit to the
office's enforcement unit shall be investigated to determine whether
there is evidence of the unauthorized practice of law or any
violation of Section 6126.7. There shall be an appropriate law
enforcement referral upon assignment to a staff member of the
enforcement unit. Assigned enforcement unit staff shall update any
law enforcement agency to which the complaint was referred with the
status and findings of the investigation as it proceeds. Upon
completion of an investigation, the assigned staff of the enforcement
unit shall analyze the evidence to determine whether the evidence is
sufficient to support formal proceedings in superior court.
(k) Enforcement unit staff shall complete nonattorney complaint
investigations to resolution by one of the following:
(1) Filing enforcement proceedings in superior court.
(2) Issuing a cease and desist letter. Enforcement unit staff may
issue a cease and desist letter where the unauthorized practice of
law activity appears isolated in nature and unlikely to recur or
where it otherwise appears that a cease and desist warning will
sufficiently address and stop the activity at issue.
(3) Closing the complaint with no further action.
(l) Enforcement unit staff shall investigate nonattorney
complaints adhering to the same backlog time standard applicable to
attorney discipline complaints and shall resolve the complaint within
six months from the complaint form received date.
(m) Intake unit staff and enforcement unit staff shall, as
appropriate, maintain and update processing activities in the
nonattorney case record, as follows:
(1) Record and track the number of superior court proceedings
initiated pursuant to Section 6126.3.
(2) Record and track the number of superior court proceedings
initiated pursuant to Section 6126.4.
(3) Record and track the number of superior court proceedings
initiated pursuant to Section 6126.7.
(4) Record and track the number of superior court proceedings
initiated pursuant to Section 6127.
(5) Record and track the number of law enforcement referrals made
in connection with nonattorney complaints.
(6) Record and track the number of other agency referrals made in
connection with nonattorney complaints.
(7) Record and track the number of cease and desist letters issued
in connection with nonattorney complaints.
(n) The Office of Chief Trial Counsel shall hire at least one
supervising attorney with the following experience:
(1) At least three years of experience handling asylum, T-Visa,
U-Visa, or special immigrant juvenile status cases and has
represented at least 25 individuals in these matters.
(2) Experience in representing individuals in removal proceedings
and asylum applications.
SEC. 26. Section 6140 of the Business and Professions Code is
amended to read:
6140. (a) The board shall fix the annual membership fee for
active members for 2017 at a sum not exceeding three hundred fifteen
dollars ($315).
(b) The annual membership fee for active members is payable on or
before the first day of February of each year. If the board finds it
appropriate and feasible, it may provide by rule for payment of fees
on an installment basis with interest, by credit card, or other
means, and may charge members choosing any alternative method of
payment an additional fee to defray costs incurred by that election.
(c) This section shall remain in effect only until January 1,
2018, and, as of that date, is repealed, unless a later enacted
statute, that is enacted before January 1, 2018, deletes or extends
that date.
SEC. 27. Section 6140.56 is added to the Business and Professions
Code, to read:
6140.56. (a) To ensure that the Client Security Fund can
adequately protect the public and relieve or mitigate financial
losses caused by the dishonest conduct of members of the State Bar by
paying claims in a timely manner, the State Bar shall conduct a
thorough analysis of the Client Security Fund, including a review of
the governance structure of the Client Security Fund to ensure that
the structure provides for the most effective and efficient operation
of the fund, a determination of the ongoing needs of the fund to
satisfy claims in a timely manner, a review of additional efforts
that can be taken to increase the collection of payments from the
responsible attorneys, and a review of other State Bar expenditures
to determine whether other expenditures that do not directly impact
the State Bar's public protection functions, including, but not
limited to, executive salaries and benefits, can be reduced or
redirected in order to better fund the Client Security Fund through
existing revenue, and, whether, after all other options have been
fully and thoroughly exhausted, an increase in membership dues is
necessary to ensure that the Client Security Fund can timely pay
claims.
(b) The State Bar shall submit a report on its analysis of the
Client Security Fund to the Legislature by March 15, 2017, so that
the plans can be reviewed in conjunction with the bill that would
authorize the imposition of the State Bar's membership fee. The
report shall be submitted in compliance with Section 9795 of the
Government Code.
(c) For purposes of this section, "timely manner" means within 12
months from the later of the time the claim is received by the State
Bar and upon the resolution of the underlying discipline case
involving an attorney member, which is a prerequisite to paying the
claim.
SEC. 28. Section 6145 of the Business and Professions Code is
amended to read:
6145. (a) The board shall engage the services of an independent
national or regional public accounting firm with at least five years
of experience in governmental auditing for an audit of its revenues,
expenditures, reserves, and its financial statement for each fiscal
year. The financial statement shall be promptly certified under oath
by the Treasurer of the State Bar, and a copy of the audit and
financial statement shall be submitted within 120 days of the close
of the fiscal year to the board, to the Chief Justice of California,
and to the Assembly and Senate Committees on Judiciary.
The audit shall examine the receipts and expenditures of the State
Bar and the State Bar sections to ensure that the receipts of the
sections are being applied, and their expenditures are being made, in
compliance with subdivision (a) of Section 6031.5, and that the
receipts of the sections are applied only to the work of the
sections.
The audit also shall examine the receipts and expenditures of the
State Bar to ensure that the funds collected on behalf of the
Conference of Delegates of California Bar Associations as the
independent successor entity to the former Conference of Delegates of
the State Bar are conveyed to that entity, that the State Bar has
been paid or reimbursed for the full cost of any administrative and
support services provided to the successor entity, including the
collection of fees or donations on its behalf, and that no mandatory
dues are being used to fund the activities of the successor entity.
In selecting the accounting firm, the board shall consider the
value of continuity, along with the risk that continued long-term
engagements of an accounting firm may affect the independence of that
firm.
(b) The board shall contract with the California State Auditor's
Office to conduct a performance audit of the State Bar's operations
from July 1, 2000, to December 31, 2000, inclusive. A copy of the
performance audit shall be submitted by May 1, 2001, to the board, to
the Chief Justice of California, and to the Assembly and Senate
Committees on Judiciary.
Every two years thereafter, the board shall contract with the
California State Auditor's Office to conduct a performance audit of
the State Bar's operations for the respective fiscal year, commencing
with January 1, 2002, to December 31, 2002, inclusive. A copy of the
performance audit shall be submitted within 120 days of the close of
the fiscal year for which the audit was performed to the board, to
the Chief Justice of California, and to the Assembly and Senate
Committees on Judiciary.
For the performance audit due to the board, to the Chief Justice
of the California Supreme Court, and to the Assembly and Senate
Committees on Judiciary in 2017, the California State Auditor shall
review all of the State Bar's expenses, including, but not limited
to, executive salaries and benefits, outside contracts, and real
estate holdings, to determine the expenses that are appropriate and
necessary to protect the public and what the appropriate level of
member dues should be.
For the purposes of this subdivision, the California State Auditor'
s Office may contract with a third party to conduct the performance
audit. This subdivision is not intended to reduce the number of
audits the California State Auditor's Office may otherwise be able to
conduct.
(c) (1) In addition to the audits required in subdivision (b), the
California State Auditor shall conduct a performance audit
evaluating the State Bar's progress in:
(A) Reviewing any changes in the State Bar's expenses made as a
result of prior audits by the California State Auditor.
(B) Correcting any issues raised in prior audits by the California
State Auditor.
(C) Increasing operational effectiveness and efficiency.
(2) The California State Auditor shall report its findings and
recommendations to the board, to the Chief Justice of California, to
the Assembly Committee on Judiciary, and to the Senate Committee on
Judiciary, no later than June 15, 2018.
SEC. 29. The Legislature finds and declares that Sections 18 and
24 of this act, which amend Sections 6026.7 and 6086.5 of the
Business and Professions Code, impose a limitation on the public's
right of access to the meetings of public bodies or the writings of
public officials and agencies within the meaning of Section 3 of
Article I of the California Constitution. Pursuant to that
constitutional provision, the Legislature makes the following
findings to demonstrate the interest protected by this limitation and
the need for protecting that interest:
In order to protect the decisionmaking process of the State Bar
Court in a manner that is similar to the deliberative functions of
other courts and in order to ensure that personal or sensitive
information regarding discipline by the State Bar Court is kept
confidential, including for persons participating in discussions and
offers of settlement pursuant to arbitration or mediation, it is
necessary to exempt the State Bar Court from the provision of the
Bagley-Keene Open Meeting Act and the California Public Records Act.