Bill Text: CA SB163 | 2011-2012 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Attorneys: board of trustees: annual membership fee.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2011-10-02 - Chaptered by Secretary of State. Chapter 417, Statutes of 2011. [SB163 Detail]
Download: California-2011-SB163-Amended.html
Bill Title: Attorneys: board of trustees: annual membership fee.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2011-10-02 - Chaptered by Secretary of State. Chapter 417, Statutes of 2011. [SB163 Detail]
Download: California-2011-SB163-Amended.html
BILL NUMBER: SB 163 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY SEPTEMBER 1, 2011
AMENDED IN ASSEMBLY JULY 13, 2011
AMENDED IN SENATE MAY 27, 2011
INTRODUCED BY Senator Evans
FEBRUARY 2, 2011
An act to amend Sections 6001.2, 6005, 6006,
6007, 6008.1, 6008.4, 6010, 6011, 6013.6, 6015, 6016, 6018, 6019,
6020, 6021, 6024, 6033, 6036, 6037, 6040, 6042, 6046.7, 6069, 6070,
6076, 6076.5, 6079.5, 6086, 6086.5, 6086.14, 6140, 6140.01, 6140.05,
6140.5, 6141, 6161, 6168, 6169, 6170, 6190.1, 6200, 6201, 6203, 6204,
6206, 6222, 6225, 6226, 6231, and 6238 of, and
to amend, repeal, and add Section 6001.2 of, to add
Sections 6001.1, 6009.7, 6012, 6013.2, 6013.3, 6013.5.5, 6026.7, and
6140.12 to, to add and repeal Section 6140.02 of, to repeal Sections
6012.5, 6013.4, 6014, and 6017 of, and to repeal and add Section
6013.1 of, the Business and Professions Code, relating to attorneys.
LEGISLATIVE COUNSEL'S DIGEST
SB 163, as amended, Evans. Attorneys: board of trustees: annual
membership fee.
Existing law, the State Bar Act, provides for the licensure and
regulation of attorneys by the State Bar of California, a public
corporation.
(1) Under existing law, the State Bar is governed by a board known
as the Board of Governors of the State Bar. The board of governors
consists of 23 members, including 15 attorney members, one attorney
member elected by the board of directors of the California Young
Lawyers Association, 6 public members, and the President of the State
Bar. Existing law provides for the election of attorney members to
the board from specified counties included in State Bar Districts.
Under existing law, the public members of the board are appointed by
the Governor and the Legislature. Existing law requires a public
member to have never been a member of the State Bar or admitted to
practice before any court in the United States. Public members are
subject to specified conflict-of-interest provisions.
This bill would revise and recast these provisions by renaming the
board of governors as the board of trustees and would also revise
the composition of the board to include no more than 23 members and
no less than 19 members, as specified and determined by the State
Bar, to include the existing 6 public members appointed by the
Governor and the Legislature and 13 attorney members. Under the bill,
the 13 attorney members would consist of 6 attorney members elected
from State Bar Districts based on the 6 court of appeal districts, 5
attorney members appointed by the Supreme Court, and 2 attorney
members appointed by the Speaker of the Assembly and the Senate
Committee on Rules. The bill would require these attorney members to
serve for a term of 3 years and would limit the elected and Supreme
Court appointed members to being reappointed or reelected for one
additional term. With respect to the Supreme Court appointments, the
bill would specify criteria that the Supreme Court should consider in
making these appointments and would require the State Bar to carry
out the administrative responsibilities related to the Supreme Court'
s appointments.
The bill would require the State Bar to reduce the board of
trustees from 23 members to 19 members by October 31, 2014. The bill
would require the State Bar to develop a plan for implementing the
transition to a 19-member board by January 31, 2012, and to submit a
written report detailing that plan to the Committees on Judiciary by
January 31, 2012. The bill would also require the State Bar to report
annually to the Committees on Judiciary on its progress toward
implementing this transition. The bill would prohibit the State Bar
from changing or abolishing a board member's term that commenced
prior to December 31, 2011, or forcing any board member to resign
whose term commenced prior to that date in order to accomplish the
transition. The bill would also declare the intent of the Legislature
in this regard.
The bill would make public members subject to additional
conflict-of-interest provisions, such as the provision that prohibits
a public member from being a close family member of a member of the
State Bar.
The bill would make other conforming changes related to the
renaming of the board and the establishment of both an election and
appointment process for attorney members of the board.
(2) Under existing law, the officers of the State Bar are a
president, 4 vice presidents, a secretary, and a treasurer, and one
of the vice presidents may also be elected to the office of
treasurer. Existing law requires the board, within 270 days before
the annual meeting, to elect the officers for the ensuing year.
Existing law requires the president and other officers to be elected
from among members with specified terms. Under existing law, the
president may vote only in the case of a specified tie vote.
This bill would instead provide that the officers shall include a
president, a vice president, a secretary, and a treasurer. The bill
would require the board to elect the officers within 90 days before
the annual meeting. The bill would also authorize the president and
the other officers to be elected from among all members of the board.
The bill would also delete the limitation on the president's voting
authority.
(3) The bill would require the board to complete and implement a
5-year strategic plan and would require the president to report to
the Supreme Court, the Governor, and the Committees on Judiciary on
certain aspects of the strategic plan.
(4) Existing law establishes a Governance in the Public Interest
Task Force within the State Bar. The task force is made up of 11
specified board members , including the President of the State
Bar, and these board members are appointed by the president.
Existing law requires the task force to prepare a report that
includes its recommendations for, among other things, enhancing and
ensuring the protection of the public.
This bill would instead , until January 1, 2013, reconstitute
the task force to be comprised of 7 members, including 3 attorney
members and 3 public members appointed by the president, and the
president would continue to serve as a member of the task force. The
bill would, on and after January 1, 2013 , reconstitute the
task force to be comprised of a total of 6 7
members and the President of the State Bar. Under the
bill, the task force would consist of , including
2 elected attorney members, 2 appointed members, and 2 public
members , who would be selected as specified , and
the president . The bill would require the task force to make
suggestions to the board of trustees regarding the
strategic plan described above and other issues as requested by the
Legislature.
(5) Existing law requires the board of governors to charge an
annual membership fee for active members of up to $315 for 2011.
Existing law also requires the board to charge an annual membership
fee for inactive members of up to $75. Existing law authorizes, until
January 1, 2014, $10 of those membership fees to be allocated to
support nonprofit organizations that provide free legal service to
persons of limited means, and authorizes a member to deduct that
amount from his or her annual fee if the member elects not to make
this allocation.
This bill would require the board to charge that annual membership
fee for active members for 2012 minus a $10 rebate to be described
in a specified manner on the annual dues statement. The bill would
require the board to charge that annual membership fee for inactive
members minus a $10 rebate to be described in a specified manner on
the annual dues statement. The bill would increase the amount of
those membership fees that may be allocated to support nonprofit
organizations that provide free legal services to $20 and the bill
would specify that this $20 shall remain be
retained in the general fund of the State Bar if a member does
not elect to make such an allocation.
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. Section 6001.1 is added to the Business and Professions
Code, to read:
6001.1. 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.
SEC. 2. Section 6001.2 of the Business and
Professions Code is amended to read:
6001.2. (a) On or before February 1, 2011, there shall be created
within the State Bar a Governance in the Public Interest Task Force
comprised of six members and the President of the State Bar, two of
whom shall be elected attorney members of the board who are selected
by the elected attorney members, two of whom shall be attorney
members of the board appointed by the Supreme Court who are selected
by the Supreme Court appointees, and two of whom shall be public
members of the board selected by the public members. The president
shall preside over its meetings, all of which shall be held
consistent with Section 6026.5.
(b) On or before May 15, 2011, and every three years thereafter,
the task force shall prepare and submit a report to the Supreme
Court, the Governor, and the Assembly and Senate Committees on
Judiciary that includes its recommendations for 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. If the task force does not reach a consensus on all of
the recommendations in its report, the dissenting members of the task
force may prepare and submit a dissenting report to the same
entities described in this subdivision, to be reviewed by the
committees in the same manner.
(c) The task force shall make suggestions to the board of trustees
regarding possible additions to, or revisions of, the strategic plan
required by Section 6140.12. In addition, the task force shall also
make suggestions to the board of trustees regarding other issues
requested from time to time by the Legislature.
SEC. 2. Section 6001.2 of the Business
and Professions Code is amended to read:
6001.2. (a) On or before February 1, 2011, there shall be created
within the State Bar a Governance in the Public Interest Task Force
comprised of 11 7 members, including 6
members appointed by the President of the State Bar, seven
three of whom shall be attorney members of the
board and three of whom shall be public members of the board. The
president shall also be a member of the task force and shall preside
over its meetings, all of which shall be held consistent with Section
6026.5.
(b) On or before May 15, 2011, and every three years thereafter,
the task force shall prepare and submit a report to the Supreme
Court, the Governor, and the Assembly and Senate Committees on
Judiciary that includes its recommendations for 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. If the task force does not reach a consensus on all of
the recommendations in its report, the dissenting members of the task
force may prepare and submit a dissenting report to the same
entities described in this subdivision, to be reviewed by the
committees in the same manner.
(c) This section shall remain in effect only until January 1,
2013, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 2.5. Section 6001.2 is added to the
Business and Professions Code , to read:
6001.2. (a) On or before February 1, 2013, there shall be created
within the State Bar a Governance in the Public Interest Task Force
comprised of 7 members, including, 6 members appointed as provided
herein and the President of the State Bar. Two members shall be
elected attorney members of the board of trustees who are selected by
the elected attorney members, two members shall be attorney members
of the board of trustees appointed by the Supreme Court who are
selected by the Supreme Court appointees, and two members shall be
public members of the board of trustees selected by the public
members. The president shall preside over its meetings, all of which
shall be held consistent with Section 6026.5.
(b) On or before May 15, 2014, and every three years thereafter,
the task force shall prepare and submit a report to the Supreme
Court, the Governor, and the Assembly and Senate Committees on
Judiciary that includes its recommendations for 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. If the task force does not reach a consensus on all of
the recommendations in its report, the dissenting members of the task
force may prepare and submit a dissenting report to the same
entities described in this subdivision, to be reviewed by the
committees in the same manner.
(c) The task force shall make suggestions to the board of trustees
regarding possible additions to, or revisions of, the strategic plan
required by Section 6140.12. In addition, the task force shall also
make suggestions to the board of trustees regarding other issues
requested from time to time by the Legislature.
(d) This section shall become operative on January 1, 2013.
SEC. 3. Section 6005 of the Business and Professions Code is
amended to read:
6005. Inactive members are those members who have requested that
they be enrolled as inactive members or who have been enrolled as
inactive members by action of the board of trustees as set forth in
Section 6007.
SEC. 4. Section 6006 of the Business and Professions Code is
amended to read:
6006. Active members who retire from practice shall be enrolled
as inactive members at their request.
Inactive members are not entitled to hold office or vote or
practice law. Those who are enrolled as inactive members at their
request may, on application and payment of all fees required, become
active members. Those who are or have been enrolled as inactive
members at their request are members of the State Bar for purposes of
Section 15 of Article VI of the California Constitution. Those who
are enrolled as inactive members pursuant to Section 6007 may become
active members as provided in that section.
Inactive members have such other privileges, not inconsistent with
this chapter, as the board of trustees provides.
SEC. 5. Section 6007 of the Business and Professions Code is
amended to read:
6007. (a) When a member requires involuntary treatment pursuant
to Article 6 (commencing with Section 5300) of Chapter 2 of Division
5 of, or Part 2 (commencing with Section 6250) of Division 6 of the
Welfare and Institutions Code, or when under an order pursuant to
Section 3051, 3106.5, or 3152 of the Welfare and Institutions Code he
or she has been placed in or returned to inpatient status at the
California Rehabilitation Center or its branches, or when he or she
has been determined insane or mentally incompetent and is confined
for treatment or placed on outpatient status pursuant to the Penal
Code, or on account of his or her mental condition a guardian or
conservator, for his or her estate or person or both, has been
appointed, the Board of Trustees or an officer of the State Bar shall
enroll the member as an inactive member.
The clerk of any court making an order containing any of the
determinations or adjudications referred to in the immediately
preceding paragraph shall send a certified copy of that order to the
State Bar at the same time that the order is entered.
The clerk of any court with which is filed a notice of
certification for intensive treatment pursuant to Article 4
(commencing with Section 5250) of Chapter 2 of Division 5 of the
Welfare and Institutions Code, upon receipt of the notice, shall
transmit a certified copy of it to the State Bar.
The State Bar may procure a certified copy of any determination,
order, adjudication, appointment, or notice when the clerk concerned
has failed to transmit one or when the proceeding was had in a court
other than a court of this state.
In the case of an enrollment pursuant to this subdivision, the
State Bar shall terminate the enrollment when the member has had the
fact of his or her restoration to capacity judicially determined,
upon the member's release from inpatient status at the California
Rehabilitation Center or its branches pursuant to Section 3053, 3109,
or 3151 of the Welfare and Institutions Code, or upon the member's
unconditional release from the medical facility pursuant to Section
5304 or 5305 of the Welfare and Institutions Code; and on payment of
all fees required.
When a member is placed in, returned to, or released from
inpatient status at the California Rehabilitation Center or its
branches, or discharged from the narcotics treatment program, the
Director of Corrections or his or her designee shall transmit to the
State Bar a certified notice attesting to that fact.
(b) The board shall also enroll a member of the State Bar as an
inactive member in each of the following cases:
(1) A member asserts a claim of insanity or mental incompetence in
any pending action or proceeding, alleging his or her inability to
understand the nature of the action or proceeding or inability to
assist counsel in representation of the member.
(2) The court makes an order assuming jurisdiction over the member'
s law practice, pursuant to Section 6180.5 or 6190.3.
(3) After notice and opportunity to be heard before the board or a
committee, the board finds that the member, because of mental
infirmity or illness, or because of the habitual use of intoxicants
or drugs, is (i) unable or habitually fails to perform his or her
duties or undertakings competently, or (ii) unable to practice law
without substantial threat of harm to the interests of his or her
clients or the public. No proceeding pursuant to this paragraph shall
be instituted unless the board or a committee finds, after
preliminary investigation, or during the course of a disciplinary
proceeding, that probable cause exists therefor. The determination of
probable cause is administrative in character and no notice or
hearing is required.
In the case of an enrollment pursuant to this subdivision, the
board shall terminate the enrollment upon proof that the facts found
as to the member's disability no longer exist and on payment of all
fees required.
(c) (1) The board may order the involuntary inactive enrollment of
an attorney upon a finding that the attorney's conduct poses a
substantial threat of harm to the interests of the attorney's clients
or to the public or upon a finding based on all the available
evidence, including affidavits, that the attorney has not complied
with Section 6002.1 and cannot be located after reasonable
investigation.
(2) In order to find that the attorney's conduct poses a
substantial threat of harm to the interests of the attorney's clients
or the public pursuant to this subdivision, each of the following
factors shall be found, based on all the available evidence,
including affidavits:
(A) The attorney has caused or is causing substantial harm to the
attorney's clients or the public.
(B) The attorney's clients or the public are likely to suffer
greater injury from the denial of the involuntary inactive enrollment
than the attorney is likely to suffer if it is granted, or there is
a reasonable likelihood that the harm will reoccur or continue. Where
the evidence establishes a pattern of behavior, including acts
likely to cause substantial harm, the burden of proof shall shift to
the attorney to show that there is no reasonable likelihood that the
harm will reoccur or continue.
(C) There is a reasonable probability that the State Bar will
prevail on the merits of the underlying disciplinary matter.
(3) In the case of an enrollment under this subdivision, the
underlying matter shall proceed on an expedited basis.
(4) The board shall order the involuntary inactive enrollment of
an attorney upon the filing of a recommendation of disbarment after
hearing or default. For purposes of this section, that attorney shall
be placed on involuntary inactive enrollment regardless of the
membership status of the attorney at the time.
(5) The board shall formulate and adopt rules of procedure to
implement this subdivision.
In the case of an enrollment pursuant to this subdivision, the
board shall terminate the involuntary inactive enrollment upon proof
that the attorney's conduct no longer poses a substantial threat of
harm to the interests of the attorney's clients or the public or
where an attorney who could not be located proves compliance with
Section 6002.1.
(d) (1) The board may order the involuntary inactive enrollment of
an attorney for violation of probation upon the occurrence of all of
the following:
(A) The attorney is under a suspension order any portion of which
has been stayed during a period of probation.
(B) The board finds that probation has been violated.
(C) The board recommends to the court that the attorney receive an
actual suspension on account of the probation violation or other
disciplinary matter.
(2) The board shall terminate an enrollment under this subdivision
upon expiration of a period equal to the period of stayed suspension
in the probation matter, or until the court makes an order regarding
the recommended actual suspension in the probation matter, whichever
occurs first.
(3) If the court orders a period of actual suspension in the
probation matter, any period of involuntary inactive enrollment
pursuant to this subdivision shall be credited against the period of
actual suspension ordered.
(e) (1) The board shall order the involuntary, inactive enrollment
of a member whose default has been entered pursuant to the State Bar
Rules of Procedure if both of the following conditions are met:
(A) The notice was duly served pursuant to subdivision (c) of
Section 6002.1.
(B) The notice contained the following language at or near the
beginning of the notice, in capital letters:
IF YOU FAIL TO FILE AN ANSWER TO THIS NOTICE WITHIN THE TIME
ALLOWED BY STATE BAR RULES, INCLUDING EXTENSIONS, OR IF YOU FAIL TO
APPEAR AT THE STATE BAR COURT TRIAL, (1) YOUR DEFAULT SHALL BE
ENTERED, (2) YOU SHALL BE ENROLLED AS AN INVOLUNTARY INACTIVE MEMBER
OF THE STATE BAR AND WILL NOT BE PERMITTED TO PRACTICE LAW UNLESS THE
DEFAULT IS SET ASIDE ON MOTION TIMELY MADE UNDER THE RULES OF
PROCEDURE OF THE STATE BAR, (3) YOU SHALL NOT BE PERMITTED TO
PARTICIPATE FURTHER IN THESE PROCEEDINGS UNLESS YOUR DEFAULT IS SET
ASIDE, AND (4) YOU SHALL BE SUBJECT TO ADDITIONAL DISCIPLINE.
(2) The board shall terminate the involuntary inactive enrollment
of a member under this subdivision when the member's default is set
aside on motion timely made under the State Bar Rules of Procedure or
the disciplinary proceedings are completed.
(3) The enrollment under this subdivision is administrative in
character and no hearing is required.
(4) Upon the involuntary inactive enrollment of a member under
this subdivision, the notice required by subdivision (b) of Section
6092.5 shall be promptly given.
(5) The board may delegate its authority under this subdivision to
the presiding referee or presiding judge of the State Bar Court or
his or her designee.
(f) The pendency or determination of a proceeding or investigation
provided for by this section shall not abate or terminate a
disciplinary investigation or proceeding except as required by the
facts and law in a particular case.
(g) No membership fees shall accrue against the member during the
period he or she is enrolled as an inactive member pursuant to this
section.
(h) The board may order a full range of interim remedies or final
discipline short of involuntary inactive enrollment, including, but
not limited to, conditions of probation following final discipline,
or directly ordered interim remedies, to restrict or supervise an
attorney's practice of law, as well as proceedings under subdivision
(a), (b), (c), or (d), or under Section 6102 or 6190. They may
include restrictions as to scope of practice, monetary accounting
procedures, review of performance by probation or other monitors
appointed by the board, or such other measures as may be determined,
after hearing, to protect present and future clients from likely
substantial harm. These restrictions may be imposed upon a showing as
provided in subdivision (c), except that where license restriction
is proposed, the showing required of the State Bar under the factors
described in subparagraph (B) of paragraph (2) of subdivision (c)
need not be made.
SEC. 6. Section 6008.1 of the Business and Professions Code is
amended to read:
6008.1. No bond, note, debenture, evidence of indebtedness,
mortgage, deed of trust, assignment, pledge, contract, lease,
agreement, or other contractual obligation of the State Bar shall:
(a) Create a debt or other liability of the state nor of any
entity other than the State Bar (or any successor public
corporation).
(b) Create any personal liability on the part of the members of
the State Bar or the members of the board of trustees or any person
executing the same, by reason of the issuance or execution thereof.
(c) Be required to be approved or authorized under the provisions
of any other law or regulation of this state.
SEC. 7. Section 6008.4 of the Business and Professions Code is
amended to read:
6008.4. All powers granted to the State Bar by Sections 6001 and
6008.3 may be exercised and carried out by action of its board of
trustees. In any resolution, indenture, contract, agreement, or other
instrument providing for, creating, or otherwise relating to, any
obligation of the State Bar, the board may make, fix, and provide
such terms, conditions, covenants, restrictions, and other provisions
as the board deems necessary or desirable to facilitate the
creation, issuance, or sale of such obligation or to provide for the
payment or security of such obligation and any interest thereon,
including, but not limited to, covenants and agreements relating to
fixing and maintaining membership fees.
SEC. 8. Section 6009.7 is added to the Business and Professions
Code, to read:
6009.7. (a) (1) The State Bar shall determine the manner by which
to reduce the board of trustees from 23 members to 19 members, as
described in Section 6011, pursuant to the election and appointment
processes specified in Sections 6012, 6013.1, 6013.2, and 6013.3.
(2) The State Bar shall develop a plan for implementing the
transition to a 19-member board by January 31, 2012.
(3) By January 31, 2012, the State Bar shall submit a written
report to the Senate and Assembly Committees on Judiciary that
includes, but is not limited to, the implementation plan described in
paragraph (2).
(b) The State Bar shall complete the transition to a 19-member
board no later than October 31, 2014.
(c) The State Bar shall not change, reduce, shorten, lengthen, or
abolish the terms of board members commencing prior to December 31,
2011, or force any board member to resign in order to institute a
19-member board pursuant to this section.
(d) The State Bar shall report annually to the Senate and Assembly
Committees on Judiciary on its progress toward implementing the
transition to a 19-member board.
SEC. 9. Section 6010 of the Business and Professions Code is
amended to read:
6010. (a) The State Bar is governed by a board known as the board
of trustees of the State Bar. The board has the powers and duties
conferred by this chapter.
(b) As used in this chapter or any other provision of law, "board
of governors" shall be deemed to refer to the board of trustees.
SEC. 10. Section 6011 of the Business and Professions Code is
amended to read:
6011. (a) The board shall consist of no more than 23 members and
no less than 19 members.
(b) It is the intent of the Legislature that the board consist of
no more than 23 members and no less than 19 members during the period
of transition from a 23-member board to a 19-member board, as
described in Section 6009.7. It is the intent of the Legislature that
the board, pursuant to the plan developed by the State Bar as
described in Section 6009.7, gradually decrease its size without
shortening, lengthening, or abolishing terms commencing prior to
December 31, 2011, with the ultimate goal of instituting a 19-member
board no later than October 31, 2014, pursuant to Section 6009.7.
SEC. 11. Section 6012 is added to the Business and Professions
Code, to read:
6012. (a) State Bar Districts, as they existed on December 31,
2011, pursuant to Section 6012.5, as added by Chapter 1223 of the
Statutes of 1989, shall cease, pursuant to the act that added this
section, for purposes of the election of attorney members of the
board. However, attorney members who were elected in 2009, 2010, or
2011 to serve for a three-year term commencing at the conclusion of
the annual meeting held in those years shall be eligible to serve
their full three-year terms.
(b) Commencing on January 1, 2012, State Bar Districts shall be
based on the six court of appeal districts as constituted pursuant to
Section 69100 of the Government Code, as they existed on December
31, 2011. The board shall provide for the election of six attorney
members of the board from these six State Bar Districts as specified
in Section 6013.2.
SEC. 12. Section 6012.5 of the Business and Professions Code is
repealed.
SEC. 13. Section 6013.1 of the Business and Professions Code is
repealed.
SEC. 14. Section 6013.1 is added to the Business and Professions
Code, 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 three
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. 15. Section 6013.2 is added to the Business and Professions
Code, to read:
6013.2. (a) Six members of the board shall be attorneys elected
from the State Bar Districts created by the board pursuant to Section
6012.
(b) An attorney member elected pursuant to this section shall
serve for a term of three years. An elected attorney member may run
for reelection, but may be reelected to only serve one additional
term.
SEC. 15.5. Section 6013.3 is added to the Business and Professions
Code, 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.
(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. 16. Section 6013.4 of the Business and Professions Code is
repealed.
SEC. 17. Section 6013.5.5 is added to the Business and Professions
Code, to read:
6013.5.5. Sections 450 to 450.6, inclusive, shall apply to public
members appointed or reappointed on or after the
January 1, 2012.
SEC. 18. Section 6013.6 of the Business and Professions Code is
amended to read:
6013.6. (a) Except as provided in subdivision (b), any full-time
employee of any public agency who serves as a member of the Board of
Trustees of the State Bar of California shall not suffer any loss of
rights, promotions, salary increases, retirement benefits, tenure, or
other job-related benefits, which he or she would otherwise have
been entitled to receive.
(b) Notwithstanding the provisions of subdivision (a), any public
agency which employs a person who serves as a member of the Board of
Trustees of the State Bar of California may reduce the employee's
salary, but no other right or job-related benefit, pro rata to the
extent that the employee does not work the number of hours required
by statute or written regulation to be worked by other employees of
the same grade in any particular pay period and the employee does not
claim available leave time. The employee shall be afforded the
opportunity to perform job duties during other than regular working
hours if such a work arrangement is practical and would not be a
burden to the public agency.
(c) The Legislature finds that service as a member of the
Board of Trustees of the State Bar of California by a person employed
by a public agency is in the public interest.
SEC. 19. Section 6014 of the Business and Professions Code is
repealed.
SEC. 20. 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) 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. 21. 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.
Except as specified in Section 6013.1, vacancies in the board of
trustees shall be filled by the board by special election or by
appointment for the unexpired 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. 22. Section 6017 of the Business and Professions Code is
repealed.
SEC. 23. Section 6018 of the Business and Professions Code is
amended to read:
6018. Nominations of elected members of the board shall be by
petition signed by at least 20 persons entitled to vote for such
nominees.
Only active members of the State Bar maintaining their principal
offices for the practice of the law in the respective State Bar
districts shall be entitled to vote for the member or members of the
board therefrom.
SEC. 24. 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
elected or appointed shall for the purposes of the election or
appointment be deemed a separate office.
If only one member seeks election to an office, the member is
deemed elected. If two or more members seek election to the same
office, the election shall be by ballot. The ballots shall be
distributed to those entitled to vote at least twenty days prior to
the date of canvassing the ballots and shall be returned to a site or
sites designated by the State Bar, where they shall be canvassed at
least five days prior to the ensuing annual meeting. At the annual
meeting, the count shall be certified and the result officially
declared.
In all other respects the elections shall be as the board may by
rule direct.
SEC. 25. Section 6020 of the Business and Professions Code is
amended to read:
6020. The officers of the State Bar are a president, a vice
president, a secretary, and a treasurer.
SEC. 26. Section 6021 of the Business and Professions Code is
amended to read:
6021. (a) (1) 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 treasurer for the
ensuing year. The president, the vice president, and the treasurer
shall be elected from among all members of the board.
(2) 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.
(b) The term of the board president shall be one year, except that
he or she may be reelected to a second one-year term as the board
president.
SEC. 27. Section 6024 of the Business and Professions Code is
amended to read:
6024. The president shall preside at all meetings of the State
Bar and of the board, and in the event of his or her absence or
inability to act, the vice president shall preside.
Other duties of the president and the vice president, and the
duties of the secretary and the treasurer, shall be such as the board
may prescribe.
SEC. 28. Section 6026.7 is added to the Business and Professions
Code, to read:
6026.7. The board shall ensure that its open meeting
requirements, as described in Section 6026.5, are consistent with,
and conform to, the Bagley-Keene Open Meeting Act (Article 9
(commencing with Section 11120) of Division 3 of Title 2 of the
Government Code).
SEC. 29. Section 6033 of the Business and Professions Code is
amended to read:
6033. (a) Notwithstanding any other provision of law, the State
Bar is expressly authorized to facilitate the professional
responsibilities of members by collecting, in conjunction with the
State Bar's collection of its annual membership dues or otherwise,
voluntary financial support for nonprofit organizations that provide
free legal services to persons of limited means.
(b) To implement this section, the State Bar, in consultation with
the Chief Justice of California, shall appoint a task force of key
stakeholders to analyze the mechanisms and experience of bar
associations that have adopted programs for the collection of
financial contributions from bar members and shall propose an
appropriate method for facilitating the collection and distribution
of voluntary contributions that is best calculated to generate the
greatest level of financial support and participation from State Bar
members, taking into account such issues as the justice-gap between
the legal needs of low-income people in California and the legal
resources available to assist them. The method and any recommended
voluntary contribution amount adopted by the Board of Trustees of the
State Bar of California shall be implemented for the 2008 fiscal
year, and shall be reviewed and adjusted as needed after two years
and, thereafter, every five years as needed, in consultation with
affected service providers and other key stakeholders.
SEC. 30. Section 6036 of the Business and Professions Code is
amended to read:
6036. (a) Any member of the board of trustees shall disqualify
himself or herself from making, participating in the making of, or
attempting to influence any decisions of the board or a committee of
the board in which he or she has a financial interest, as that term
is defined in Section 87103 of the Government Code, that it is
reasonably foreseeable may be affected materially by the decision.
(b) Any member of the board of trustees shall likewise disqualify
himself or herself when there exists a personal nonfinancial interest
that will prevent the member from applying disinterested skill and
undivided loyalty to the State Bar in making or participating in the
making of decisions.
(c) Notwithstanding subdivisions (a) and (b), no member shall be
prevented from making or participating in the making of any decision
to the extent his or her participation is legally required for the
action or decision to be made. The fact that a member's vote is
needed to break a tie does not make his or her participation legally
required for the purposes of this section.
(d) A member required to disqualify himself or herself because of
a conflict of interest shall (1) immediately disclose the interest,
(2) withdraw from any participation in the matter, (3) refrain from
attempting to influence another member, and (4) refrain from voting.
It is sufficient for the purpose of this section that the member
indicate only that he or she has a disqualifying financial or
personal interest.
(e) For purposes of this article and unless otherwise specified,
"member" means any appointed or elected member of the board of
trustees.
SEC. 31. Section 6037 of the Business and Professions Code is
amended to read:
6037. No action or decision of the board or committee of the
board shall be invalid because of the participation therein by a
member or members in violation of Section 6036. However, any member
who intentionally violates the provisions of subdivision (a) of
Section 6036 is guilty of a misdemeanor, punishable by imprisonment
in the county jail not exceeding five days, or by a fine not
exceeding one thousand dollars ($1,000), or by both, and, if the
member is an attorney member of the board, a certified copy of the
record of conviction shall be transmitted to the Supreme Court for
disposition as provided in Sections 6101 and 6102. Upon entry of
final judgment of conviction, the member's term of office on the
board of trustees, and duties and authority incidental thereto, shall
automatically terminate. Any member who intentionally violates the
provisions of subdivision (b) of Section 6036 shall be liable for a
civil penalty not to exceed five hundred dollars ($500) for each
violation, which shall be assessed and recovered in a civil action in
a court of competent jurisdiction brought in the name of the state
only by a district attorney of a county in which the member resides
or maintains offices and the penalty collected shall be paid to the
treasurer of that county.
SEC. 32. Section 6040 of the Business and Professions Code is
amended to read:
6040. The board of trustees may create local administrative
committees and delegate to them such of its powers and duties as
seems advisable. The board may in its discretion divide any committee
into units or sections with concurrent powers and duties in order to
handle the work of the committee more expeditiously. The board may
also prescribe the powers of the committee and the units or sections
thereof.
SEC. 33. Section 6042 of the Business and Professions Code is
amended to read:
6042. The members of local administrative committees, except ex
officio members of the board of trustees, shall hold office at the
pleasure of the board.
SEC. 34. Section 6046.7 of the Business and Professions Code is
amended to read:
6046.7. (a) (1) Notwithstanding any other provision of law, the
Committee of Bar Examiners shall adopt rules that shall be effective
on and after January 1, 2008, for the regulation and oversight of
unaccredited law schools that are required to be authorized to
operate as a business in California and to have an administrative
office in California, including correspondence schools, that are not
accredited by the American Bar Association or the Committee of Bar
Examiners, with the goal of ensuring consumer protection and a legal
education at an affordable cost.
(2) Notwithstanding any other provision of law, the committee
shall adopt rules that shall be effective on and after January 1,
2008, for the regulation and oversight of nonlaw school legal
programs leading to a juris doctor (J.D.) degree, bachelor of laws
(LL.B.) degree, or other law study degree.
(b) Commencing January 1, 2008, the committee shall assess and
collect a fee from unaccredited law schools and legal programs in
nonlaw schools in an amount sufficient to fund the regulatory and
oversight responsibilities imposed by this section. Nothing in this
subdivision precludes the board of trustees from using other funds or
fees collected by the State Bar or by the committee to supplement
the funding of the regulatory and oversight responsibilities imposed
by this section with other funds, if that supplemental funding is
deemed necessary and appropriate to mitigate some of the additional
costs of the regulation and oversight to facilitate the provision of
a legal education at an affordable cost.
SEC. 35. Section 6069 of the Business and Professions Code is
amended to read:
6069. (a) Every member of the State Bar shall be deemed by
operation of this law to have irrevocably authorized the disclosure
to the State Bar and the Supreme Court pursuant to Section 7473 of
the Government Code of any and all financial records held by
financial institutions as defined in subdivisions (a) and (b) of
Section 7465 of the Government Code pertaining to accounts which the
member must maintain in accordance with the Rules of Professional
Conduct; provided that no such financial records shall be disclosed
to the State Bar without a subpoena therefor having been issued
pursuant to Section 6049 of this code, and further provided that the
board of trustees shall by rule provide notice to the member similar
to that notice provided for in subdivision (d) of Section 7473 of the
Government Code. Such notice may be sent by mail addressed to the
member's current office or other address for State Bar purposes as
shown on the member's registration records of the State Bar.
The State Bar shall, by mail addressed to the member's current
office or other address for State Bar purposes as shown on the member'
s registration records of the State Bar, notify its members annually
of the provisions of this subdivision.
(b) With regard to the examination of all financial records other
than those mentioned in subdivision (a), held by financial
institutions as defined in subdivisions (a) and (b) of Section 7465
of the Government Code, no such financial records shall be disclosed
to the State Bar without a subpoena therefor having been issued
pursuant to Section 6049 of this code and the board of trustees shall
by rule provide for service of a copy of the subpoena on the
customer as defined in subdivision (d) of Section 7465 of the
Government Code and an opportunity for the customer to move the board
or committee having jurisdiction to quash the subpoena prior to
examination of the financial records. Review of the actions of the
board or any committee on such motions shall be had only by the
Supreme Court in accordance with the procedure prescribed by the
court. Service of a copy of any subpoena issued pursuant to this
subdivision (b) may be made on a member of the State Bar by mail
addressed to the member's current office or other address for State
Bar purposes as shown on the member's registration records of the
State Bar. If the customer is other than a member, service shall be
made pursuant to Chapter 4 (commencing with Section 413.10) of Title
5 of Part 2 of the Code of Civil Procedure, except that service may
be made by an employee of the State Bar.
(c) For purposes of this section, "member of the State Bar" or
"member" means every member of the State Bar, law firm in California
of which a member of the State Bar is a member, and law corporation
within the meaning of Article 10 of Chapter 4 of Division 3 of this
code.
SEC. 36. Section 6070 of the Business and Professions Code is
amended to read:
6070. (a) The State Bar shall request the California Supreme
Court to adopt a rule of court authorizing the State Bar to establish
and administer a mandatory continuing legal education program. The
rule that the State Bar requests the Supreme Court to adopt shall
require that, within designated 36-month periods, all active members
of the State Bar shall complete at least 25 hours of legal education
activities approved by the State Bar or offered by a State Bar
approved provider, with four of those hours in legal ethics. A member
of the State Bar who fails to satisfy the mandatory continuing legal
education requirements of the program authorized by the Supreme
Court rule shall be enrolled as an inactive member pursuant to rules
adopted by the Board of Trustees of the State Bar.
(b) For purposes of this section, statewide associations of public
agencies and incorporated, nonprofit professional associations of
attorneys, shall be certified as State Bar approved providers upon
completion of an appropriate application process to be established by
the State Bar. The certification may be revoked only by majority
vote of the board, after notice and hearing, and for good cause
shown. Programs provided by the California District Attorneys
Association or the California Public Defenders Association, or both,
including, but not limited to, programs provided pursuant to Title
1.5 (commencing with Section 11500) of Part 4 of the Penal Code, are
deemed to be legal education activities approved by the State Bar or
offered by a State Bar approved provider.
(c) Notwithstanding the provisions of subdivision (a), officers
and elected officials of the State of California, and full-time
professors at law schools accredited by the State Bar of California,
the American Bar Association, or both, shall be exempt from the
provisions of this section. Full-time employees of the State of
California, acting within the scope of their employment, shall be
exempt from the provisions of this section. Nothing in this section
shall prohibit the State of California, or any political subdivision
thereof, from establishing or maintaining its own continuing
education requirements for its employees.
(d) The State Bar shall provide and encourage the development of
low-cost programs and materials by which members may satisfy their
continuing education requirements. Special emphasis shall be placed
upon the use of internet capabilities and computer technology in the
development and provision of no-cost and low-cost programs and
materials. Towards this purpose, the State Bar shall ensure that by
July 1, 2000, any member possessing or having access to the Internet
or specified generally available computer technology shall be capable
of satisfying the full self-study portion of his or her MCLE
requirement at a cost of fifteen dollars ($15) per hour or less.
SEC. 37. Section 6076 of the Business and Professions Code is
amended to read:
6076. With the approval of the Supreme Court, the Board of
Trustees may formulate and enforce rules of professional conduct for
all members of the State Bar.
SEC. 38. Section 6076.5 of the Business and Professions Code is
amended to read:
6076.5. (a) With the approval of the Supreme Court, the members
of the State Bar may formulate by initiative, pursuant to the
provisions of this section, rules of professional conduct for all
members of the bar in the state.
(b) Only active members of the State Bar shall be proponents of
initiative measures pursuant to this section.
(c) Prior to the circulation of any initiative petition for
signatures, the proponents shall file the text of the proposed
initiative measure with both the Secretary of the State Bar and the
Clerk of the Supreme Court.
(d) Upon receipt of the text of a proposed initiative measure, the
secretary shall prepare a summary of the chief purposes and points
of the proposed initiative measure. The summary shall give a true and
impartial statement of the purpose of the measure in such language
that it shall not be an argument or likely to create prejudice either
for or against the measure. The secretary shall provide a copy of
the summary to the proponents within 30 days after receipt of the
final version of the proposed measure. If during the 30-day period
the proponents submit amendments, other than technical,
nonsubstantive amendments, to the final version of such measure, the
secretary shall provide a copy of the summary to the proponents
within 30 days after receipt of such amendments.
(e) The proponents of any proposed initiative measure shall, prior
to its circulation, place upon each section of the petition, above
the text of the measure and across the top of each page of the
petition on which signatures are to appear, in boldface type not
smaller than 12-point, the summary prepared by the secretary.
(f) All such initiative petitions shall have printed across the
top thereof in 12-point boldface type the following: "Initiative
measure to be submitted directly to the members of the State Bar of
California."
(g) Any initiative petition may be presented in sections, but each
section shall contain a full and correct copy of the title and text
of the proposed measure.
(h) The petition sections shall be designed so that each signer
shall personally affix his or her:
(1) Signature;
(2) Printed name;
(3) State Bar membership number; and
(4) Principal office address for the practice of law.
Only a person who is an active member of the State Bar at the time
of signing the petition is entitled to sign it.
The number of signatures attached to each section shall be at the
discretion of the person soliciting the signatures.
(i) Any member of the State Bar, or employee or agent thereof, may
circulate an initiative petition anywhere within the state.
Any person circulating a petition may sign the section he or she
is circulating if he or she is otherwise qualified to do so.
(j) Each section shall have attached thereto the affidavit of the
person soliciting the signatures stating:
(1) The qualifications of the solicitor;
(2) That the signatures affixed to the section were made in his or
her presence;
(3) That to the best of his or her knowledge and belief, each
signature is the genuine signature of the person whose name it
purports to be;
(4) That to the best of his or her knowledge and belief, each
State Bar membership number is the genuine membership number of the
person whose number it purports to be; and
(5) The dates between which all signatures were obtained.
The affidavit shall be verified free of charge by any officer
authorized to administer oaths.
Petitions so verified shall be prima facie evidence that the
signatures thereon are genuine and that the persons signing are
active members of the State Bar. Unless and until it be otherwise
proven upon official investigation, it shall be presumed that the
petition presented contains the signatures of the requisite number of
active members of the State Bar.
(k) All sections of the petition shall be filed with the Secretary
of the State Bar within 180 days after the date upon which the
secretary mailed or delivered to the proponents a copy of the summary
specified in subdivision (d), but all sections circulated in any
State Bar district shall be filed at the same time.
( l ) No initiative measure shall be submitted to the
members of the State Bar for a vote unless with regard to each State
Bar district the petition has been signed by at least 20 percent of
the number of active members whose principal office for the practice
of law was within the district as of the January 1 preceding the date
upon which all sections of the petition from all State Bar districts
were filed with the secretary.
(m) The secretary shall promptly determine the total number of
signatures from each State Bar district affixed to the petition. If
the total number of signatures from any State Bar district is less
than the number required by subdivision ( l ), the
secretary shall so notify the proponents and no further action shall
be taken in regard to the petition. If the total number of signatures
from each and every State Bar district is equal to or greater than
the number required by subdivision ( l ), the secretary
shall verify the names and State Bar membership numbers, and may, in
his or her discretion, verify the office addresses and signatures of
the persons who signed the petition. If the total number of verified
signers of the petition from any State Bar district is less than the
number required by subdivision ( l ), the secretary shall
so notify the proponents and no further action shall be taken in
regard to the petition. If the total number of verified signers of
the petition from each and every State Bar district is equal to or
greater than the number required by subdivision ( l ), the
secretary shall cause the initiative measure to be submitted within
90 days to all of the active members of the State Bar for mail vote
pursuant to such rules and regulations as the board may from time to
time prescribe.
(n) The board of trustees, without petition, may also direct the
secretary to cause an initiative measure embodying a rule of
professional conduct formulated by the board to be submitted to all
of the active members of the State Bar for mail vote in accordance
with the rules and regulations prescribed by the board.
(o) If a majority of the active members of the State Bar fail to
approve the initiative measure, the secretary shall so notify the
proponents and the Clerk of the Supreme Court.
If a majority of the active members of the State Bar approve the
initiative measure, the secretary shall cause the measure to be
submitted to the Supreme Court for its consideration as a rule of
professional conduct.
(p) The rules of professional conduct submitted to the Supreme
Court pursuant to the provisions of this section, when approved by
the Supreme Court, shall have the same force and effect as the rules
of professional conduct formulated by the board of trustees and
approved by the Supreme Court pursuant to Sections 6076 and 6077.
SEC. 39. Section 6079.5 of the Business and Professions Code is
amended to read:
6079.5. (a) The board shall appoint a lawyer admitted to practice
in California to serve as chief trial counsel. He or she shall be
appointed for a term of four years and may be reappointed for
additional four-year periods. He or she shall serve at the pleasure
of the board. He or she shall not engage in private practice. The
State Bar shall notify the Senate Committee on Rules and the Senate
and Assembly Committees on Judiciary within seven days of the
dismissal or hiring of a chief trial counsel.
The appointment of the chief trial counsel is subject to
confirmation by the Senate, and the time limits prescribed in Section
1774 of the Government Code for Senate confirmation and for service
in office are applicable to the appointment.
He or she shall report to and serve under the Regulation,
Admissions, and Discipline Oversight Committee of the Board of
Trustees of the State Bar or its successor committee on attorney
discipline, and shall not serve under the direction of the chief
executive officer.
(b) The chief trial counsel shall have the following
qualifications:
(1) Be an attorney licensed to practice in the State of
California, be in good standing and shall not have committed any
disciplinary offenses in California or any other jurisdiction.
(2) Have a minimum of five years of experience in the practice of
law, including trial experience, with law practice in broad areas of
the law.
(3) Have a minimum of two years of prosecutorial experience or
similar experience in administrative agency proceedings or
disciplinary agencies.
(4) Have a minimum of two years of experience in an administrative
role, overseeing staff functions.
The board may except an appointee from any of the above
qualifications for good cause upon a determination of necessity to
obtain the most qualified person.
On or after July 1, 1987, the chief trial counsel may, as
prescribed by the Supreme Court, petition the court for a different
disposition of a matter than the recommendations of the review
department or the board to the court.
SEC. 40. Section 6086 of the Business and Professions Code is
amended to read:
6086. The board of trustees, subject to the provisions of this
chapter, may by rule provide the mode of procedure in all cases of
complaints against members.
SEC. 41. 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.
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. 42. Section 6086.14 of the Business and Professions Code is
amended to read:
6086.14. (a) The Board of Trustees of the State Bar is authorized
to formulate and adopt rules and regulations necessary to establish
an alternative dispute resolution discipline mediation program to
resolve complaints against attorneys that do not warrant the
institution of formal investigation or prosecution. The program
should identify sources of client dissatisfaction and provide a
mediation process to resolve those complaints or disputes unless the
client objects to mediation. The refusal of an attorney to
participate in the State Bar's alternative dispute resolution
discipline mediation program established pursuant to this section, or
the failure of an attorney to comply with any agreement reached in
the State Bar's alternative dispute resolution discipline mediation
program may subject that attorney to discipline. The rules may
authorize discipline mediation under this article to proceed under
discipline mediation programs sponsored by local bar associations in
this state. The rules shall authorize a local bar association to
charge a reasonable administrative fee for the purpose of offsetting
the costs of maintaining the discipline mediation programs.
(b) The board of trustees shall have the authority to formulate
and adopt standards and guidelines to implement the alternative
dispute resolution discipline mediation program. The standards and
guidelines formulated and adopted by the board, as from time to time
amended, shall be effective and binding on all members, and may
encompass any discipline mediation programs sponsored by local bar
associations.
(c) It is the intent of the Legislature that the authorization of
an alternative dispute resolution discipline mediation program not be
construed as limiting or altering the powers of the Supreme Court of
this state or the State Bar to disbar or discipline members of the
State Bar. The records relating to the alternative dispute resolution
discipline mediation program may be made available in any subsequent
disciplinary action pursuant to any rule, standard, or guideline
adopted by the Board of Trustees of the State Bar.
SEC. 43. 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 2012 at a sum not exceeding three hundred fifteen
dollars ($315) minus a ten dollar ($10) rebate to be shown as such on
the annual dues statement directly below the 2012 membership fee.
(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,
2013, and, as of that date, is repealed, unless a later enacted
statute, that is enacted before January 1, 2013, deletes or extends
that date.
SEC. 44. Section 6140.01 of the Business and Professions Code is
amended to read:
6140.01. (a) (1) Twenty dollars ($20) of the membership fee
authorized pursuant to Sections 6140 and 6141 shall be allocated for
the purposes established pursuant to Section 6033, except to the
extent that a member elects not to support those activities.
allocate that amount of the membership fee for those
purposes, in which case the amount shall be allocated to the general
fund of the State Bar to be available for other regulatory purposes.
(2) The invoice provided to members for payment of the annual
membership fee shall provide each member the option of
deducting twenty dollars ($20) from the annual fee if the member
elects not to have this amount allocated as provided in this section.
If the member does not elect to have this amount allocated for this
purpose with the option to direct the State Bar to
retain in the general fund twenty dollars ($20) of the annual fee
described in subparagraph (1) if the member elects not to have this
amount allocated for the purposes established pursuant to Section
6033. The invoice shall indicate that if the member elects not to
have this amount allocated for the purposes established pursuant to
Section 6033 , such funds shall remain
be retained in the general fund of the State Bar.
(3) The allocation pursuant to this section shall be known as the
Temporary Emergency Legal Services Voluntary Assistance Option.
(b) This section shall remain in effect only until January 1,
2014, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2014, deletes or extends
that date.
SEC. 45. Section 6140.02 is added to the Business and Professions
Code, to read:
6140.02. (a) In the 2012 and 2013 fiscal years, two million
dollars ($2,000,000) of nonmandatory dues collected pursuant to
Section 6033 shall be allocated in each of those years for the
purposes established pursuant to Section 6033, unless the general
fund of the State Bar faces overriding extraordinary circumstances in
the 2013 fiscal year.
(b) This section shall become inoperative on July 1, 2013, and, as
of January 1, 2014, is repealed, unless a later enacted statute,
that becomes operative on or before January 1, 2014, deletes or
extends the dates on which it becomes inoperative and is repealed.
SEC. 46. Section 6140.05 of the Business and Professions Code is
amended to read:
6140.05. (a) The invoice provided to members for payment of the
annual membership fee shall provide each member the option of
deducting five dollars ($5) from the annual fee if the member elects
not to support lobbying and related activities by the State Bar
outside of the parameters established by the United States Supreme
Court in Keller v. State Bar of California (1990) 496 U.S. 1.
(b) For the support or defense of lobbying and related activities
conducted by the State Bar on or after January 1, 2000, outside of
the parameters of Keller v. State Bar of California, and in support
or defense of any litigation arising therefrom, the Board of Trustees
of the State Bar shall not expend a sum exceeding the following: the
product of the number of members paying their annual dues who did
not elect the optional deduction multiplied by five dollars ($5).
Moneys collected pursuant to this section shall not be deemed
voluntary fees or funds for the purpose of subdivision (c) of Section
6031.5.
(c) As used in this section, "lobbying and related activities by
the State Bar" includes the consideration of measures by the Board of
Trustees of the State Bar that are deemed outside the parameters
established in Keller v. State Bar, the purview determination,
lobbying and the preparation for lobbying of the measures, and any
litigation in support or defense of that lobbying. The determination
of these costs shall include, but not be limited to, overhead and
administrative costs.
SEC. 47. Section 6140.12 is added to the Business and Professions
Code, to read:
6140.12. The board shall complete and implement a five-year
strategic plan to be updated every two years. In conjunction with the
submission of the board's proposed final budget as required by
Section 6140.1, the president shall report to the Supreme Court, the
Governor, and the Senate and Assembly Committees on Judiciary on the
measures the board has taken to implement the strategic plan and
shall indicate the measures the board will need to take in the
remaining years of the strategic plan to address the projected needs
contained in the plan.
SEC. 48. Section 6140.5 of the Business and Professions Code is
amended to read:
6140.5. (a) The board shall establish and administer a Client
Security Fund to relieve or mitigate pecuniary losses caused by the
dishonest conduct of active members of the State Bar, Foreign Legal
Consultants registered with the State Bar, and attorneys registered
with the State Bar under the Multijurisdictional Practice Program,
arising from or connected with the practice of law. Any payments from
the fund shall be discretionary and shall be subject to regulation
and conditions as the board shall prescribe. The board may delegate
the administration of the fund to the State Bar Court, or to any
board or committee created by the board of trustees.
(b) Upon making a payment to a person who has applied to the fund
for payment to relieve or mitigate pecuniary losses caused by the
dishonest conduct of an active member of the State Bar, the State Bar
is subrogated, to the extent of that payment, to the rights of the
applicant against any person or persons who, or entity that, caused
the pecuniary loss. The State Bar may bring an action to enforce
those rights within three years from the date of payment to the
applicant.
(c) Any attorney whose actions have caused the payment of funds to
a claimant from the Client Security Fund shall reimburse the fund
for all moneys paid out as a result of his or her conduct with
interest, in addition to payment of the assessment for the procedural
costs of processing the claim, as a condition of continued practice.
The reimbursed amount, plus applicable interest and costs, shall be
added to and become a part of the membership fee of a publicly
reproved or suspended member for the next calendar year. For a member
who resigns with disciplinary charges pending or a member who is
suspended or disbarred, the reimbursed amount, plus applicable
interest and costs, shall be paid as a condition of reinstatement of
membership.
(d) Any assessment against an attorney pursuant to subdivision (c)
that is part of an order imposing a public reproval on a member or
is part of an order imposing discipline or accepting a resignation
with a disciplinary matter pending, may also be enforced as a money
judgment. This subdivision does not limit the power of the Supreme
Court to alter the amount owed or to authorize the State Bar Court,
in the enforcement of a judgment under this subdivision, to approve
an agreement for the compromise of that judgment.
SEC. 49. Section 6141 of the Business and Professions Code is
amended to read:
6141. (a) Until December 31, 2006, the board shall fix the
annual membership fee for inactive members at a sum not exceeding
sixty-five dollars ($65). On January 1, 2007, and thereafter, the
board shall fix the annual membership fee for inactive members at a
sum not exceeding seventy-five dollars ($75) minus a ten dollar ($10)
rebate to be shown as such on the annual dues statement directly
below the 2012 membership fee. The annual membership fee for inactive
members is payable on or before the first day of February of each
year.
(b) An inactive member shall not be required to pay the annual
membership fee for inactive members for any calendar year following
the calendar year in which the member attains the age of 70 years.
SEC. 50. Section 6161 of the Business and Professions Code is
amended to read:
6161. An applicant for registration as a law corporation shall
supply to the State Bar all necessary and pertinent documents and
information requested by the State Bar concerning the applicant's
plan of operation, including, but not limited to, a copy of its
articles of incorporation, certified by the Secretary of State, a
copy of its bylaws, certified by the secretary of the corporation,
the name and address of the corporation, the names and addresses of
its officers, directors, shareholders, members, if any, and employees
who will render professional services, the address of each office,
and any fictitious name or names which the corporation intends to
use. The State Bar may provide forms of application. If the Board of
Trustees or a committee authorized by it finds that the corporation
is duly organized and existing or duly qualified for the transaction
of intrastate business pursuant to the General Corporation Law, or
pursuant to subdivision (b) of Section 13406 of the Corporations
Code, that each officer (except as provided in Section 13403 of the
Corporations Code), director, shareholder (except as provided in
subdivision (b) of Section 13406 of the Corporations Code), and each
employee who will render professional services is a licensed person
as defined in the Professional Corporation Act, or a person licensed
to render the same professional services in the jurisdiction or
jurisdictions in which the person practices, and that from the
application it appears that the affairs of the corporation will be
conducted in compliance with law and the rules and regulations of the
State Bar, the State Bar shall upon payment of the registration fee
in such amount as it may determine issue a certificate of
registration. The applicant shall include with the application, for
each shareholder of the corporation licensed in a foreign country but
not in this state or in any other state, territory, or possession of
the United States, a certificate from the authority in the foreign
country currently having final jurisdiction over the practice of law,
which shall verify the shareholder's admission to practice in the
foreign country, the date thereof, and the fact that the shareholder
is currently in good standing as an attorney or counselor at law or
the equivalent. If the certificate is not in English, there shall be
included with the certificate a duly authenticated English
translation thereof. The application shall be signed and verified by
an officer of the corporation.
SEC. 51. Section 6168 of the Business and Professions Code is
amended to read:
6168. The State Bar may conduct an investigation of the conduct
of the business of a law corporation.
Upon such investigation, the Board of Trustees, or a committee
authorized by it, shall have power to issue subpoenas, administer
oaths, examine witnesses, and compel the production of records, in
the same manner as upon an investigation or formal hearing in a
disciplinary matter under the State Bar Act. Such investigation shall
be private and confidential, except to the extent that disclosure of
facts and information may be required if a cease and desist order is
thereafter issued and subsequent proceedings are had.
SEC. 52. Section 6169 of the Business and Professions Code is
amended to read:
6169. (a) When there is reason to believe that a law corporation
has violated or is about to violate any of the provisions of this
article or the Professional Corporation Act or of any other pertinent
statute, rule, or regulation, the State Bar may issue a notice
directing the corporation to show cause why it should not be ordered
to cease and desist from specified acts or conduct or its certificate
of registration should not be suspended or revoked. A copy of the
notice shall be served upon the corporation in the manner provided
for service of summons upon a California corporation.
(b) A hearing upon the notice to show cause shall be held before a
standing or special committee appointed by the board of trustees.
Upon the hearing, the State Bar and the corporation shall be entitled
to the issue of subpoenas, to be represented by counsel, to present
evidence, and examine and cross-examine witnesses.
(c) The hearing committee shall make findings in writing and shall
either recommend that the proceeding be dismissed or that a cease
and desist order be issued or that the certificate of registration of
the corporation be suspended or revoked. The determination may be
reviewed by the board of trustees or by a committee authorized by the
Board of Trustees to act in its stead, upon written petition for
review, filed with the State Bar by the corporation or the State Bar
within 20 days after service of the findings and recommendation. Upon
review, the board of trustees or the committee may take additional
evidence, may adopt new or amended findings, and make such order as
may be just, as to the notice to show cause.
(d) Subdivisions (a), (b), and (c) shall not apply to the
suspension or revocation of the certificate of registration of a
corporation in either of the following cases:
(1) The death of a sole shareholder, as provided in Section
6171.1.
(2) Failure to file the annual report and renew the certificate of
registration, as provided in Sections 6161.1 and 6163.
SEC. 53. Section 6170 of the Business and Professions Code is
amended to read:
6170. Any action of the State Bar or the Board of Trustees or a
committee of the State Bar, or the chief executive officer of the
State Bar or the designee of the chief executive officer, provided
for in this article, may be reviewed by the Supreme Court by petition
for review pursuant to rules prescribed by the Supreme Court.
SEC. 54. Section 6190.1 of the Business and Professions Code is
amended to read:
6190.1. (a) An application for assumption by the court of
jurisdiction under this article shall be made to the superior court
for the county where the attorney maintains or most recently has
maintained his or her principal office for the practice of law or
where such attorney resides. The court may assume jurisdiction over
the law practice of an attorney to the extent provided in Article 11
(commencing with Section 6180) of Chapter 4 of Division 3.
(b) Where an attorney consents to the assumption by the court of
jurisdiction under the article, the State Bar, a client, or an
interested person or entity may apply to the court for assumption of
jurisdiction over the law practice of the attorney. In any proceeding
under this subdivision, the State Bar shall be permitted to
intervene and to assume primary responsibility for conducting the
action.
(c) Where an attorney does not consent to the assumption by the
court of jurisdiction under this article, only the State Bar may
apply to the court for assumption of jurisdiction over the law
practice of the attorney.
(d) The chief trial counsel may appoint, pursuant to rules adopted
by the board of trustees, an examiner or coexaminer from among the
members of the State Bar in an investigation or formal proceeding
under this article.
SEC. 55. Section 6200 of the Business and Professions Code is
amended to read:
6200. (a) The board of trustees shall, by rule, establish,
maintain, and administer a system and procedure for the arbitration,
and may establish, maintain, and administer a system and procedure
for mediation of disputes concerning fees, costs, or both, charged
for professional services by members of the State Bar or by members
of the bar of other jurisdictions. The rules may include provision
for a filing fee in the amount as the board may, from time to time,
determine.
(b) This article shall not apply to any of the following:
(1) Disputes where a member of the State Bar of California is also
admitted to practice in another jurisdiction or where an attorney is
only admitted to practice in another jurisdiction, and he or she
maintains no office in the State of California, and no material
portion of the services were rendered in the State of California.
(2) Claims for affirmative relief against the attorney for damages
or otherwise based upon alleged malpractice or professional
misconduct, except as provided in subdivision (a) of Section 6203.
(3) Disputes where the fee or cost to be paid by the client or on
his or her behalf has been determined pursuant to statute or court
order.
(c) Unless the client has agreed in writing to arbitration under
this article of all disputes concerning fees, costs, or both,
arbitration under this article shall be voluntary for a client and
shall be mandatory for an attorney if commenced by a client.
Mediation under this article shall be voluntary for an attorney and a
client.
(d) The board of trustees shall adopt rules to allow arbitration
and mediation of attorney fee and cost disputes under this article to
proceed under arbitration and mediation systems sponsored by local
bar associations in this state. Rules of procedure promulgated by
local bar associations are subject to review by the board or a
committee designated by the board to ensure that they provide for a
fair, impartial, and speedy hearing and award.
(e) In adopting or reviewing rules of arbitration under this
section, the board shall provide that the panel shall include one
attorney member whose area of practice is either, at the option of
the client, civil law, if the attorney's representation involved
civil law, or criminal law, if the attorney's representation involved
criminal law, as follows:
(1) If the panel is composed of three members the panel shall
include one attorney member whose area of practice is either, at the
option of the client, civil or criminal law, and shall include one
lay member.
(2) If the panel is composed of one member, that member shall be
an attorney whose area of practice is either, at the option of the
client, civil or criminal law.
(f) In any arbitration or mediation conducted pursuant to this
article by the State Bar or by a local bar association, pursuant to
rules of procedure approved by the board of trustees, an arbitrator
or mediator, as well as the arbitrating association and its
directors, officers, and employees, shall have the same immunity
which attaches in judicial proceedings.
(g) In the conduct of arbitrations under this article the
arbitrator or arbitrators may do all of the following:
(1) Take and hear evidence pertaining to the proceeding.
(2) Administer oaths and affirmations.
(3) Issue subpoenas for the attendance of witnesses and the
production of books, papers, and documents pertaining to the
proceeding.
(h) Participation in mediation is a voluntary consensual process,
based on direct negotiations between the attorney and his or her
client, and is an extension of the negotiated settlement process. All
discussions and offers of settlement are confidential and may not be
disclosed in any subsequent arbitration or other proceedings.
SEC. 56. Section 6201 of the Business and Professions Code is
amended to read:
6201. (a) The rules adopted by the board of trustees shall
provide that an attorney shall forward a written notice to the client
prior to or at the time of service of summons or claim in an action
against the client, or prior to or at the commencement of any other
proceeding against the client under a contract between attorney and
client which provides for an alternative to arbitration under this
article, for recovery of fees, costs, or both. The written notice
shall be in the form that the board of trustees prescribes, and shall
include a statement of the client's right to arbitration under this
article. Failure to give this notice shall be a ground for the
dismissal of the action or other proceeding. The notice shall not be
required, however, prior to initiating mediation of the dispute.
The rules adopted by the board of trustees shall provide that the
client's failure to request arbitration within 30 days after receipt
of notice from the attorney shall be deemed a waiver of the client's
right to arbitration under the provisions of this article.
(b) If an attorney, or the attorney's assignee, commences an
action in any court or any other proceeding and the client is
entitled to maintain arbitration under this article, and the dispute
is not one to which subdivision (b) of Section 6200 applies, the
client may stay the action or other proceeding by serving and filing
a request for arbitration in accordance with the rules established by
the board of trustees pursuant to subdivision (a) of Section 6200.
The request for arbitration shall be served and filed prior to the
filing of an answer in the action or equivalent response in the other
proceeding; failure to so request arbitration prior to the filing of
an answer or equivalent response shall be deemed a waiver of the
client's right to arbitration under the provisions of this article if
notice of the client's right to arbitration was given pursuant to
subdivision (a).
(c) Upon filing and service of the request for arbitration, the
action or other proceeding shall be automatically stayed until the
award of the arbitrators is issued or the arbitration is otherwise
terminated. The stay may be vacated in whole or in part, after a
hearing duly noticed by any party or the court, if and to the extent
the court finds that the matter is not appropriate for arbitration
under the provisions of this article. The action or other proceeding
may thereafter proceed subject to the provisions of Section 6204.
(d) A client's right to request or maintain arbitration under the
provisions of this article is waived by the client commencing an
action or filing any pleading seeking either of the following:
(1) Judicial resolution of a fee dispute to which this article
applies.
(2) Affirmative relief against the attorney for damages or
otherwise based upon alleged malpractice or professional misconduct.
(e) If the client waives the right to arbitration under this
article, the parties may stipulate to set aside the waiver and to
proceed with arbitration.
SEC. 57. Section 6203 of the Business and Professions Code is
amended to read:
6203. (a) The award shall be in writing and signed by the
arbitrators concurring therein. It shall include a determination of
all the questions submitted to the arbitrators, the decision of which
is necessary in order to determine the controversy. The award shall
not include any award to either party for costs or attorney's fees
incurred in preparation for or in the course of the fee arbitration
proceeding, notwithstanding any contract between the parties
providing for such an award or costs or attorney's fees. However, the
filing fee paid may be allocated between the parties by the
arbitrators. This section shall not preclude an award of costs or
attorney's fees to either party by a court pursuant to subdivision
(c) of this section or of subdivision (d) of Section 6204. The State
Bar, or the local bar association delegated by the State Bar to
conduct the arbitration, shall deliver to each of the parties with
the award, an original declaration of service of the award.
Evidence relating to claims of malpractice and professional
misconduct, shall be admissible only to the extent that those claims
bear upon the fees, costs, or both, to which the attorney is
entitled. The arbitrators shall not award affirmative relief, in the
form of damages or offset or otherwise, for injuries underlying the
claim. Nothing in this section shall be construed to prevent the
arbitrators from awarding the client a refund of unearned fees,
costs, or both previously paid to the attorney.
(b) Even if the parties to the arbitration have not agreed in
writing to be bound, the arbitration award shall become binding upon
the passage of 30 days after service of notice of the award, unless a
party has, within the 30 days, sought a trial after arbitration
pursuant to Section 6204. If an action has previously been filed in
any court, any petition to confirm, correct, or vacate the award
shall be to the court in which the action is pending, and may be
served by mail on any party who has appeared, as provided in Chapter
4 (commencing with Section 1003) of Title 14 of Part 2 of the Code of
Civil Procedure; otherwise it shall be in the same manner as
provided in Chapter 4 (commencing with Section 1285) of Title 9 of
Part 3 of the Code of Civil Procedure. If no action is pending in any
court, the award may be confirmed, corrected, or vacated by petition
to the court having jurisdiction over the amount of the arbitration
award, but otherwise in the same manner as provided in Chapter 4
(commencing with Section 1285) of Title 9 of Part 3 of the Code of
Civil Procedure.
(c) Neither party to the arbitration may recover costs or attorney'
s fees incurred in preparation for or in the course of the fee
arbitration proceeding with the exception of the filing fee paid
pursuant to subdivision (a) of this section. However, a court
confirming, correcting, or vacating an award under this section may
award to the prevailing party reasonable fees and costs incurred in
obtaining confirmation, correction, or vacation of the award
including, if applicable, fees and costs on appeal. The party
obtaining judgment confirming, correcting, or vacating the award
shall be the prevailing party except that, without regard to
consideration of who the prevailing party may be, if a party did not
appear at the arbitration hearing in the manner provided by the rules
adopted by the board of trustees, that party shall not be entitled
to attorney's fees or costs upon confirmation, correction, or
vacation of the award.
(d) (1) In any matter arbitrated under this article in which the
award is binding or has become binding by operation of law or has
become a judgment either after confirmation under subdivision (c) or
after a trial after arbitration under Section 6204, or in any matter
mediated under this article, if: (A) the award, judgment, or
agreement reached after mediation includes a refund of fees or costs,
or both, to the client and (B) the attorney has not complied with
that award, judgment, or agreement the State Bar shall enforce the
award, judgment, or agreement by placing the attorney on involuntary
inactive status until the refund has been paid.
(2) The State Bar shall provide for an administrative procedure to
determine whether an award, judgment, or agreement should be
enforced pursuant to this subdivision. An award, judgment, or
agreement shall be so enforced if:
(A) The State Bar shows that the attorney has failed to comply
with a binding fee arbitration award, judgment, or agreement rendered
pursuant to this article.
(B) The attorney has not proposed a payment plan acceptable to the
client or the State Bar.
However, the award, judgment, or agreement shall not be so
enforced if the attorney has demonstrated that he or she (i) is not
personally responsible for making or ensuring payment of the refund,
or (ii) is unable to pay the refund.
(3) An attorney who has failed to comply with a binding award,
judgment, or agreement shall pay administrative penalties or
reasonable costs, or both, as directed by the State Bar. Penalties
imposed shall not exceed 20 percent of the amount to be refunded to
the client or one thousand dollars ($1,000), whichever is greater.
Any penalties or costs, or both, that are not paid shall be added to
the membership fee of the attorney for the next calendar year.
(4) The board shall terminate the inactive enrollment upon proof
that the attorney has complied with the award, judgment, or agreement
and upon payment of any costs or penalties, or both, assessed as a
result of the attorney's failure to comply.
(5) A request for enforcement under this subdivision shall be made
within four years from the date (A) the arbitration award was
mailed, (B) the judgment was entered, or (C) the date the agreement
was signed. In an arbitrated matter, however, in no event shall a
request be made prior to 100 days from the date of the service of a
signed copy of the award. In cases where the award is appealed, a
request shall not be made prior to 100 days from the date the award
has become final as set forth in this section.
SEC. 58. Section 6204 of the Business and Professions Code is
amended to read:
6204. (a) The parties may agree in writing to be bound by the
award of arbitrators appointed pursuant to this article at any time
after the dispute over fees, costs, or both, has arisen. In the
absence of such an agreement, either party shall be entitled to a
trial after arbitration if sought within 30 days, pursuant to
subdivisions (b) and (c), except that if either party willfully fails
to appear at the arbitration hearing in the manner provided by the
rules adopted by the board of trustees, that party shall not be
entitled to a trial after arbitration. The determination of
willfulness shall be made by the court. The party who failed to
appear at the arbitration shall have the burden of proving that the
failure to appear was not willful. In making its determination, the
court may consider any findings made by the arbitrators on the
subject of a party's failure to appear.
(b) If there is an action pending, the trial after arbitration
shall be initiated by filing a rejection of arbitration award and
request for trial after arbitration in that action within 30 days
after service of notice of the award. If the rejection of arbitration
award has been filed by the plaintiff in the pending action, all
defendants shall file a responsive pleading within 30 days following
service upon the defendant of the rejection of arbitration award and
request for trial after arbitration. If the rejection of arbitration
award has been filed by the defendant in the pending action, all
defendants shall file a responsive pleading within 30 days after the
filing of the rejection of arbitration award and request for trial
after arbitration. Service may be made by mail on any party who has
appeared; otherwise service shall be made in the manner provided in
Chapter 4 (commencing with Section 413.10) of Title 5 of Part 2 of
the Code of Civil Procedure. Upon service and filing of the rejection
of arbitration award, any stay entered pursuant to Section 6201
shall be vacated, without the necessity of a court order.
(c) If no action is pending, the trial after arbitration shall be
initiated by the commencement of an action in the court having
jurisdiction over the amount of money in controversy within 30 days
after service of notice of the award. After the filing of such an
action, the action shall proceed in accordance with the provisions of
Part 2 (commencing with Section 307) of the Code of Civil Procedure,
concerning civil actions generally.
(d) The party seeking a trial after arbitration shall be the
prevailing party if that party obtains a judgment more favorable than
that provided by the arbitration award, and in all other cases the
other party shall be the prevailing party. The prevailing party may,
in the discretion of the court, be entitled to an allowance for
reasonable attorney's fees and costs incurred in the trial after
arbitration, which allowance shall be fixed by the court. In fixing
the attorney's fees, the court shall consider the award and
determinations of the arbitrators, in addition to any other relevant
evidence.
(e) Except as provided in this section, the award and
determinations of the arbitrators shall not be admissible nor operate
as collateral estoppel or res judicata in any action or proceeding.
SEC. 59. Section 6206 of the Business and Professions Code is
amended to read:
6206. The time for filing a civil action seeking judicial
resolution of a dispute subject to arbitration under this article
shall be tolled from the time an arbitration is initiated in
accordance with the rules adopted by the board of trustees until (a)
30 days after receipt of notice of the award of the arbitrators, or
(b) receipt of notice that the arbitration is otherwise terminated,
whichever comes first. Arbitration may not be commenced under this
article if a civil action requesting the same relief would be barred
by any provision of Title 2 (commencing with Section 312) of Part 2
of the Code of Civil Procedure; provided that this limitation shall
not apply to a request for arbitration by a client, pursuant to the
provisions of subdivision (b) of Section 6201, following the filing
of a civil action by the attorney.
SEC. 60. Section 6222 of the Business and Professions Code is
amended to read:
6222. A recipient of funds allocated pursuant to this article
annually shall submit a financial statement to the State Bar,
including an audit of the funds by a certified public accountant or a
fiscal review approved by the State Bar, a report demonstrating the
programs on which they were expended, a report on the recipient's
compliance with the requirements of Section 6217, and progress in
meeting the service expansion requirements of Section 6221.
The Board of Trustees of the State Bar shall include a report of
receipts of funds under this article, expenditures for administrative
costs, and disbursements of the funds, on a county-by-county basis,
in the annual report of State Bar receipts and expenditures required
pursuant to Section 6145.
SEC. 61. Section 6225 of the Business and Professions Code is
amended to read:
6225. The Board of Trustees of the State Bar shall adopt the
regulations and procedures necessary to implement this article and to
ensure that the funds allocated herein are utilized to provide civil
legal services to indigent persons, especially underserved client
groups such as but not limited to the elderly, the disabled,
juveniles, and non-English-speaking persons.
In adopting the regulations the Board of Trustees shall comply
with the following procedures:
(a) The board shall publish a preliminary draft of the regulations
and procedures, which shall be distributed, together with notice of
the hearings required by subdivision (b), to commercial banking
institutions, to members of the State Bar, and to potential
recipients of funds.
(b) The board shall hold at least two public hearings, one in
southern California and one in northern California where affected and
interested parties shall be afforded an opportunity to present oral
and written testimony regarding the proposed regulations and
procedures.
SEC. 62. Section 6226 of the Business and Professions Code is
amended to read:
6226. The program authorized by this article shall become
operative only upon the adoption of a resolution by the Board of
Trustees of the State Bar stating that regulations have been adopted
pursuant to Section 6225 which conform the program to all applicable
tax and banking statutes, regulations, and rulings.
SEC. 63. Section 6231 of the Business and Professions Code is
amended to read:
6231. (a) The board shall establish and administer an Attorney
Diversion and Assistance Program, and shall establish a committee to
oversee the operation of the program. The committee shall be
comprised of 12 members who shall be appointed as follows:
(1) Six members appointed by the Board of Trustees, including the
following:
(A) Two members who are licensed mental health professionals with
knowledge and expertise in the identification and treatment of
substance abuse and mental illness.
(B) One member who is a physician with knowledge and expertise in
the identification and treatment of alcoholism and substance abuse.
(C) One member of the board of directors of a statewide nonprofit
organization established for the purpose of assisting lawyers with
alcohol or substance abuse problems, which has been in continuous
operation for a minimum of five years.
(D) Two members who are attorneys, at least one of which is in
recovery and has at least five years of continuous sobriety.
(2) Four members appointed by the Governor, including the
following:
(A) Two members who are attorneys.
(B) Two members of the public.
(3) One member of the public appointed by the Speaker of the
Assembly.
(4) One member of the public appointed by the Senate Committee on
Rules.
(b) Committee members shall serve terms of four years, and may be
reappointed as many times as desired. The board shall stagger the
terms of the initial members appointed.
(c) Subject to the approval of the board, the committee may adopt
reasonable rules and regulations as may be necessary or advisable for
the purpose of implementing and operating the program.
SEC. 64. Section 6238 of the Business and Professions Code is
amended to read:
6238. The committee shall report to the Board of Trustees and to
the Legislature not later than March 1, 2003, and annually
thereafter, on the implementation and operation of the program. The
report shall include, but is not limited to, information concerning
the number of cases accepted, denied, or terminated with compliance
or noncompliance, and annual expenditures related to the program.
