Bill Text: CA AB2878 | 2015-2016 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Attorneys: State Bar: board of trustees.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Engrossed - Dead) 2016-11-30 - Died on unfinished business file, concurrence pending. [AB2878 Detail]
Download: California-2015-AB2878-Amended.html
Bill Title: Attorneys: State Bar: board of trustees.
Spectrum: Partisan Bill (Democrat 6-0)
Status: (Engrossed - Dead) 2016-11-30 - Died on unfinished business file, concurrence pending. [AB2878 Detail]
Download: California-2015-AB2878-Amended.html
BILL NUMBER: AB 2878 AMENDED
BILL TEXT
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, 6011, 6013.3, 6013.5,
6015, 6016, 6019, 6021, 6022, 6026.7, 6030, 6060.2,
6060.25, 6086.5, and 6140 of, to amend, repeal, and add Section
6145 of, to add Section 6140.56,
Sections 6001.3, 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 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
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 require
each member of the board appointed after December 31, 2016, to have
demonstrated educational or experience expertise, or both, in one of
5 specified areas, including public finance. This
The bill would require that a minimum of 7 members of the board
be public members, as appointed by specified entities, and would
provide that no motion of the board can be approved unless
a majority of the public members approve the motion.
The bill would require the Supreme Court to select from
its appointed members a president and vice president of the State Bar
instead of the board of trustees electing a president and vice
president.
This bill would create the California State Bar Governance
Commission and would provide that it consists of 9 members to be
appointed as specified. The bill would require the commission to
evaluate all issues of governance of the State Bar, including, but
not limited to, a full review of other states with attorney
regulatory structures that are different than the State Bar, in order
to recommend the best governance structure for the State Bar and to
ensure that protection of the public is the highest priority of the
State Bar in its regulatory duties. The bill would require the
commission to provide a report to the Governor, the Chief Justice of
the California Supreme Court, and the Senate and Assembly Committees
on Judiciary by April 30, 2017. The bill would repeal these
provisions as of January 1, 2018.
This bill would require the Chief Justice of the California
Supreme Court 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 contract with the
California State Auditor's Office for an audit of its revenues,
expenditures, reserves, and its 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.
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 the provision authorizing the
State Bar to raise additional revenue by any lawful means. The
bill would specify that the State Bar is empowered to raise
additional revenue by any lawful means 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. The bill would state various findings and declarations of
the Legislature.
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: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The Legislature finds and declares all of the
following:
(a) The protection of the public is required, by statute, to be
the highest priority of the State Bar of California and must be the
paramount focus of the State Bar, its employees, and, most
importantly, its board of trustees. All other duties and activities
of the State Bar are ancillary to its regulatory oversight of the
state's more than 250,000 attorneys, over 185,000 of whom are active
members.
(b) Throughout its history, the State Bar has been the subject of
substantial controversies, including allegations of serious fiscal
and management improprieties, and most recently failure to properly
protect the public against the unauthorized practice of law,
including allowing hundreds of complaints to languish in a drawer.
(c) In May 2015, the California State Auditor released its
biannual performance audit of the State Bar, reviewing the State Bar'
s backlog of discipline cases and its recent $75,000,000 purchase and
renovation of a building in Los Angeles at three times the cost
originally estimated and requiring a loan against the Public
Protection Fund, which is designed to be an emergency fund to protect
the public in the event of a financial emergency. The audit
uncovered significant, questionable decisions made by the State Bar
in the handling of both matters, including that the State Bar had not
fully or consistently reported its backlog of discipline cases and
that, in order to reduce its backlog of discipline cases, the State
Bar made questionable choices, potentially causing "significant risk
to the public."
(d) Most recently and without consultation with the Legislature,
the State Bar chose to replace the loan on the Los Angeles building,
along with a brand new loan for updating its San Francisco building,
with a securitization on future members dues, potentially tying the
hands of the Legislature in setting future dues amounts.
(e) As a result of the troubling findings of the audit, the
Legislature, as part of the 2015 State Bar dues legislation, imposed
important new preliminary reforms on the State Bar. First, the
Legislature mandated that the State Bar be subject to both the
California Public Records Act and the Bagley-Keene Open Meetings Act.
These good government reforms help ensure the integrity,
transparency, and accountability of the State Bar. Second, the
Legislature directed the California State Auditor to conduct a full
financial audit of the State Bar, which is due on May 15, 2016.
Finally, the State Bar must develop a workforce plan for its attorney
discipline system and a spending plan to determine the level for
dues to recommend to the Legislature, which are both due on May 15,
2016. These reports should help inform the Legislature regarding the
appropriate actions to take in its oversight responsibility of the
State Bar and its own determination of the proper dues amount.
(f) In 2011, the Legislature directed the State Bar to establish a
Governance in the Public Interest Task Force to make recommendations
to the Governor, the Supreme Court, and the Legislature every three
years, beginning May 15, 2014, for, among other things, enhancing the
protection of the public and ensuring that protection of the public
is the highest priority in the licensing, regulation, and discipline
of attorneys, to be reviewed by the Assembly and Senate Committees on
Judiciary in their regular consideration of the annual State Bar
dues measure. That first report is now two years overdue and,
although the Governance in the Public Interest Task Force finally
began holding meetings this year, it appears that this already long
overdue report will not be completed during this legislative session.
(g) It is the intent of the Legislature, in fulfilling its
important oversight responsibility over the State Bar and the proper
amount State Bar members must pay in annual dues, that this bill
serve as the vehicle to implement possible recommendations for
substantially improving the operations, effectiveness, and efficiency
of the State Bar based on the 2016 California State Auditor's audit
of the State Bar, along with the State Bar's discipline workforce and
spending plans and any draft Governance Task Force report or other
information, in order to ensure that the dues are the appropriate
amount, that the State Bar becomes more accountable to the public,
and that public protection is, and remains, the State Bar's top
priority.
SEC. 2. 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. 3. Section 6001.3 is added to the
Business and Professions Code , to read:
6001.3. (a) There is hereby created, as of January 1, 2017, the
California State Bar Governance Commission, consisting of nine
members, who shall be appointed by February 1, 2017, and selected as
follows:
(1) Two members appointed by the Governor.
(2) Three members appointed by the Chief Justice of the California
Supreme Court.
(3) Two members appointed by the Speaker of the Assembly.
(4) Two members appointed by the Senate Committee on Rules.
(b) The chairperson of the commission shall be elected by the
members of the commission and shall preside at meetings of the
commission.
(c) Appointed members of the commission shall not receive a
salary, but shall be entitled to a per diem allowance of fifty
dollars ($50) for each day's attendance at a meeting of the
commission, not to exceed three hundred dollars ($300) in any month,
and reimbursement for expenses incurred in the performance of their
duties under this chapter, including travel and other necessary
expenses.
(d) The commission may adopt bylaws for the regulation of its
affairs and the conduct of its business.
(e) The commission shall meet on the call of the chairperson, at
the request of a majority of the members, or at the request of the
California Chief Justice of the Supreme Court. A majority of all
members of the commission constitutes a quorum for the transaction of
business.
(f) The State Bar shall furnish all administrative assistance
required by the commission.
(g) The commission shall evaluate all issues of governance of the
State Bar, including, but not limited to, a full review of other
states with attorney regulatory structures that are different than
the State Bar and a possible separation of the State Bar's regulatory
and trade association functions, in order to recommend the best
governance structure for the State Bar to ensure that the protection
of the public is the highest priority in the licensing, regulation,
and discipline of attorneys and that the State Bar appropriately
functions as a government agency subject to laws that apply to
similar regulatory bodies. The commission shall, by April 30, 2017,
provide a report to the Governor, the Chief Justice of the California
Supreme Court, and the Senate and Assembly Committees on Judiciary
on its recommendations, along with an implementation plan for those
recommendations. If the commission does not reach a consensus on all
of the recommendations in its report, the dissenting members of the
commission may prepare and submit a dissenting report to the same
entities described in this subdivision.
SEC. 3. SEC. 4. Section 6008.5 of
the Business and Professions Code is repealed.
SEC. 4. SEC. 5. Section 6009.7 of
the Business and Professions Code is repealed.
SEC. 5. SEC. 6. 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) Each member appointed after December 31, 2016, shall have
demonstrated educational or experience expertise, 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.
SEC. 6. SEC. 7. Section 6012 of the
Business and Professions Code is repealed.
SEC. 7. 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
shall be appointed by the Speaker of the Assembly.
Rules.
(b) An attorney member appointed pursuant to this section shall
serve for a term of three years. An appointed attorney member may be
reappointed pursuant to this section.
SEC. 10. Section 6013.5 of t he
Business and Professions Code is amended to read:
6013.5. Notwithstanding any other provision of law, six
(a) Effective January 1, 2017, a
minimum of seven 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. They shall
be appointed through 1982 by the Governor, subject to the
confirmation of the Senate.
Each
(b) Each of such
these members shall serve for a term of three
years, commencing at the conclusion of the annual meeting next
succeeding his appointment, except that for the initial term
after enactment of this section, two shall serve for one year, two
for two years, and the other two for three years, as determined by
lot. or her appointment.
In 1983
(c) Effective January 1, 2017, one
public member shall be appointed by the Senate Committee on Rules
and one two public member
members shall be appointed by the Speaker of the
Assembly.
For each of the years, 1984 and 1985, two
(d) Four public members shall be
appointed by the Governor, subject to the confirmation of the Senate.
Each
(e) Each respective appointing
authority shall fill any vacancy in and make any reappointment to
each respective office.
(f) It is the intent of the Legislature that the increase of
public members appointed by the Speaker of the Assembly, from one to
two, as required by this measure adding this subdivision, occur at
the expiration of the terms of the attorney members who are appointed
by the Speaker of the Assembly and serving on the board as of
December 31, 2016.
SEC. 8. 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 all 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.
(c) If newly appointed after December 31, 2016, he or she
satisfies the requirements of subdivision (c) of Section 6011.
SEC. 9. 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 commence at the conclusion of the annual meeting next
succeeding his or her election or appointment, and he or she shall
hold office until his or her successor is elected or appointed and
qualified. For the purposes of this section, the time intervening
between any two successive annual meetings shall be deemed to be one
year.
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. 10. SEC. 13. Section 6018 of
the Business and Professions Code is repealed.
SEC. 11. 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. 12. SEC. 15. Section 6021 of
the Business and Professions Code is amended to read:
6021. (a) (1) Within The Supreme Court
shall select from its appointed members a president and a vice
president to serve in the absence of the president.
(2) Within the period of 90 days
next preceding the annual meeting, the board, at a meeting called for
that purpose, shall elect the president, vice president,
and select the treasurer for the ensuing year.
The president, the vice president, and the treasurer shall
be elected from among all members of the board.
(2)
(3) The newly elected president,
vice president, and treasurer shall assume the duties of their
respective offices at the conclusion of the annual meeting following
their election. appointment or selection.
(b) The term of the board president shall be one year, except that
he or she may be reelected reappointed
to a second one-year term as the board president.
(c) Notwithstanding the provisions of Section 6011 regarding a
13-member board, if the president is elected from among those members
of the board whose terms on the board expire by that year and has
not been reappointed to another term under Section 6013.1 or 6013.5,
the president shall serve as a 14th member of the board during his or
her one-year term, and he or she may vote.
SEC. 13. SEC. 16. Section 6022 of
the Business and Professions Code is amended to read:
6022. The officers of the State Bar shall be selected annually by
the board and need not be a member of the State Bar.
SEC. 14. 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. 15. 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 to the board 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 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. The
(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) No motion of the board can be approved unless a majority of
the public members approve the motion.
SEC. 16. SEC. 20. 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. 17. SEC. 21. 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) This section does not prohibit the disclosure of any of the
following:
(1) The names of applicants who have passed any examination
administered, given, or prescribed by the Committee of Bar Examiners.
(2) Information that is provided at the request of an applicant to
another jurisdiction where the applicant is seeking admission to the
practice of law.
(3) Information provided to a law school that is necessary for the
purpose of the law school's compliance with accreditation or
regulatory requirements.
(4) 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.
(c) Disclosure of any of the information in paragraphs (2) to (4),
inclusive, 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. 22. Section 6075.6 is added to the
Business and Professions Code , to read:
6075.6. (a) (1) The Chief Justice of the California Supreme Court
shall appoint a State Bar enforcement program monitor prior to March
31, 2017. The Chief Justice of the California Supreme Court shall
advertise the availability of the position and conduct interviews of
candidates for the position. 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 Chief Justice of the California Supreme Court 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 Bar
shall provide data, information, and case files as requested by the
enforcement program monitor to perform all of his or her duties. The
enforcement program monitor shall have the same access to documents
as the Chief Justice of the California Supreme Court.
(c) The enforcement program monitor shall submit an initial
written report of his or her findings and conclusions to the State
Bar, the 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 Supreme
Court, the State Bar, or the Legislature at his or her discretion or
at the request of the 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, 2020, shall be repealed.
SEC. 18. SEC. 23. 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 Supreme Court.
SEC. 24. 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.
SEC. 19. SEC. 25. 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. 20. SEC. 26. 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
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 time the claim is received by the State Bar.
SEC. 27. 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
contract with the California State Auditor's Office 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 the Supreme Court, 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.
This subdivision is not intended to reduce the number of audits
the California State Auditor's Office may otherwise be able to
conduct.
(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 the Supreme Court, 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 the Supreme Court, 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) Effective January 1, 2016, the board shall contract with the
California State Auditor's Office to conduct an in-depth financial
audit of the State Bar, including an audit of its financial
statement, internal controls, and relevant management practices. The
contract shall include reimbursement for the California State Auditor'
s Office for the costs of conducting the audit. The audit shall, at a
minimum, examine the revenues, expenditures, and reserves of the
State Bar, including all fund transfers. The California State Auditor'
s Office shall commence the audit no later than January 1, 2016, and
a copy of the audit shall be submitted by May 15, 2016, to the board,
the Chief Justice of the Supreme Court, and to the Assembly and
Senate Committees on Judiciary. The audit shall be submitted in
compliance with Section 9795 of the Government Code. This subdivision
shall cease to be operative January 1, 2017.
(c) This section shall become inoperative on January 1, 2021, and
as of that date is repealed.
SEC. 28. Section 6145 is added to the
Business and Professions Code , 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 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 the California Supreme Court, 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 the California Supreme Court, 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 the Supreme Court, and to the Assembly and
Senate Committees on Judiciary.
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.
SEC. 21. SEC. 29. The Legislature
finds and declares that Sections 17 and 20 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.
