SB 387: State Bar: attorneys: annual membership fees: meetings: public records.
- Session Year: 2015-2016
- House: Senate
- Latest Version Date: 2015-10-06
Existing law, the State Bar Act, provides for the licensure and regulation of attorneys by the State Bar of California, a public corporation. The State Bar is governed by a board of trustees. Existing law authorizes the board, among other duties, to aid in all matters pertaining to the improvement of the administration of justice, including all matters that may advance the professional interests of the members of the State Bar.
Existing law requires the State Bar to issue an Annual Discipline Report describing the performance and condition of the State Bar discipline system. Existing law requires the report to cover the previous calendar year and to include accurate and complete descriptions of, among other things, the existing backlog of cases within the discipline system and a description of the programs at the State Bar directed at preventing acts warranting discipline. Existing law requires the board to appoint a lawyer admitted to practice in California to serve as chief trial counsel. The Office of the Chief Trial Counsel, which is responsible for reviewing charges of lawyer misconduct, investigates and prosecutes complaints about attorneys.
This bill would revise the content of the information in the report. The bill would additionally require the backlog of cases to include other matters opened in the Office of the Chief Trial Counsel and pending beyond 6 months after receipt, as specified.
Existing law, until January 1, 2016, requires the board to charge an annual membership fee for active members of up to $315 for 2015.
This bill would, until January 1, 2017, require the board to charge that annual membership fee for 2016.
Existing law requires the State Bar to review its workload standards to measure the effectiveness and efficiency of its disciplinary activities, including, but not limited to, the State Bar Court and the Client Security Fund, and to provide guidance to the State Bar and the Legislature in allocating resources, as specified.
This bill would delete that requirement. The bill would, instead, require the State Bar to develop and implement a specified workforce plan for its discipline system and conduct a public sector compensation and benefits study to reassess the numbers and classifications of staff required to conduct the disciplinary activities. The bill would require the State Bar to conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for the annual membership fee, as specified. The bill would require the State Bar to report to the Legislature by May 15, 2016.
Existing law requires the board to engage the services of an independent public accounting firm for an audit of its financial statement for each fiscal year.
This bill would require, effective January 1, 2016, the State Bar to contract with the California State Auditors Office to conduct an in-depth financial audit of the State Bar, including an audit of its financial statement, internal controls, and relevant management practices, as provided, and would require the office to provide a copy of the audit to the board, the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
Under existing law, no law of this state restricting or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies is applicable to the State Bar, unless the Legislature expressly so declares. Except as specified, existing law requires every meeting of the board to be open to the public.
Existing law, the Bagley-Keene Open Meeting Act, requires that all meetings of a state body be open and public and that all persons be permitted to attend any meeting of a state body, subject to certain conditions and exceptions. A violation of these provisions is a misdemeanor.
Existing law exempts the board from the act, but requires the board to ensure that its open meeting requirements are consistent with, and conform to, the Bagley-Keene Open Meeting Act.
Existing law, the California Public Records Act, requires state and local agencies to make public records available for inspection, subject to certain exceptions.
This bill, commencing April 1, 2016, would make the State Bar subject to the Bagley-Keene Open Meeting Act. The bill would provide that the Bagley-Keene Open Meeting Act does not apply to the Judicial Nominees Evaluation Commission or the Committee of Bar Examiners. By expanding the scope of that crime, the bill would impose a state-mandated local program. The bill would also make the State Bar subject to the California Public Records Act. The bill would require any identifying information submitted by an applicant to the State Bar for admission and a license to practice law and all State Bar admission records to be confidential and would prohibit disclosure pursuant to any state law, including the California Public Records Act. The bill would make other conforming changes in this regard.
This bill would incorporate additional changes in Section 11121 of the Government Code proposed by AB 85 that would become operative only if AB 85 and this bill are both chaptered and become effective on or before January 1, 2016, and this bill is chaptered last.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law, the State Bar Act, provides for the licensure and regulation of attorneys by the State Bar of California, a public corporation. The State Bar is governed by a board of trustees. Existing law authorizes the board, among other duties, to aid in all matters pertaining to the improvement of the administration of justice, including all matters that may advance the professional interests of the members of the State Bar.
Existing law requires the State Bar to issue an Annual Discipline Report describing the performance and condition of the State Bar discipline system. Existing law requires the report to cover the previous calendar year and to include accurate and complete descriptions of, among other things, the existing backlog of cases within the discipline system and a description of the programs at the State Bar directed at preventing acts warranting discipline. Existing law requires the board to appoint a lawyer admitted to practice in California to serve as chief trial counsel. The Office of the Chief Trial Counsel, which is responsible for reviewing charges of lawyer misconduct, investigates and prosecutes complaints about attorneys.
This bill would revise the content of the information in the report. The bill would additionally require the backlog of cases to include other matters opened in the Office of the Chief Trial Counsel and pending beyond 6 months after receipt, as specified.
Existing law, until January 1, 2016, requires the board to charge an annual membership fee for active members of up to $315 for 2015.
This bill would, until January 1, 2017, require the board to charge that annual membership fee for 2016.
Existing law requires the State Bar to review its workload standards to measure the effectiveness and efficiency of its disciplinary activities, including, but not limited to, the State Bar Court and the Client Security Fund, and to provide guidance to the State Bar and the Legislature in allocating resources, as specified.
This bill would delete that requirement. The bill would, instead, require the State Bar to develop and implement a specified workforce plan for its discipline system and conduct a public sector compensation and benefits study to reassess the numbers and classifications of staff required to conduct the disciplinary activities. The bill would require the State Bar to conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for the annual membership fee, as specified. The bill would require the State Bar to report to the Legislature by May 15, 2016.
Existing law requires the board to engage the services of an independent public accounting firm for an audit of its financial statement for each fiscal year.
This bill would require, effective January 1, 2016, the State Bar to contract with the California State Auditors Office to conduct an in-depth financial audit of the State Bar, including an audit of its financial statement, internal controls, and relevant management practices, as provided, and would require the office to provide a copy of the audit to the board, the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
Under existing law, no law of this state restricting or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies is applicable to the State Bar, unless the Legislature expressly so declares. Except as specified, existing law requires every meeting of the board to be open to the public.
Existing law, the Bagley-Keene Open Meeting Act, requires that all meetings of a state body be open and public and that all persons be permitted to attend any meeting of a state body, subject to certain conditions and exceptions. A violation of these provisions is a misdemeanor.
Existing law exempts the board from the act, but requires the board to ensure that its open meeting requirements are consistent with, and conform to, the Bagley-Keene Open Meeting Act.
Existing law, the California Public Records Act, requires state and local agencies to make public records available for inspection, subject to certain exceptions.
This bill, commencing April 1, 2016, would make the State Bar subject to the Bagley-Keene Open Meeting Act. The bill would provide that the Bagley-Keene Open Meeting Act does not apply to the Judicial Nominees Evaluation Commission or the Committee of Bar Examiners. By expanding the scope of that crime, the bill would impose a state-mandated local program. The bill would also make the State Bar subject to the California Public Records Act. The bill would require any identifying information submitted by an applicant to the State Bar for admission and a license to practice law and all State Bar admission records to be confidential and would prohibit disclosure pursuant to any state law, including the California Public Records Act. The bill would make other conforming changes in this regard.
This bill would incorporate additional changes in Section 11121 of the Government Code proposed by AB 85 that would become operative only if AB 85 and this bill are both chaptered and become effective on or before January 1, 2016, and this bill is chaptered last.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law, the State Bar Act, provides for the licensure and regulation of attorneys by the State Bar of California, a public corporation. The State Bar is governed by a board of trustees. Existing law authorizes the board, among other duties, to aid in all matters pertaining to the improvement of the administration of justice, including all matters that may advance the professional interests of the members of the State Bar.
Existing law requires the State Bar to issue an Annual Discipline Report describing the performance and condition of the State Bar discipline system. Existing law requires the report to cover the previous calendar year and to include accurate and complete descriptions of, among other things, the existing backlog of cases within the discipline system and a description of the programs at the State Bar directed at preventing acts warranting discipline. Existing law requires the board to appoint a lawyer admitted to practice in California to serve as chief trial counsel. The Office of the Chief Trial Counsel, which is responsible for reviewing charges of lawyer misconduct, investigates and prosecutes complaints about attorneys.
This bill would revise the content of the information in the report. The bill would additionally require the backlog of cases to include other matters opened in the Office of the Chief Trial Counsel and pending beyond 6 months after receipt, as specified.
Existing law, until January 1, 2016, requires the board to charge an annual membership fee for active members of up to $315 for 2015.
This bill would, until January 1, 2017, require the board to charge that annual membership fee for 2016.
Existing law requires the State Bar to review its workload standards to measure the effectiveness and efficiency of its disciplinary activities, including, but not limited to, the State Bar Court and the Client Security Fund, and to provide guidance to the State Bar and the Legislature in allocating resources, as specified.
This bill would delete that requirement. The bill would, instead, require the State Bar to develop and implement a specified workforce plan for its discipline system and conduct a public sector compensation and benefits study to reassess the numbers and classifications of staff required to conduct the disciplinary activities. The bill would require the State Bar to conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for the annual membership fee, as specified. The bill would require the State Bar to report to the Legislature by May 15, 2016.
Existing law requires the board to engage the services of an independent public accounting firm for an audit of its financial statement for each fiscal year.
This bill would require, effective January 1, 2016, the State Bar to contract with the California State Auditors Office to conduct an in-depth financial audit of the State Bar, including an audit of its financial statement, internal controls, and relevant management practices, as provided, and would require the office to provide a copy of the audit to the board, the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
Under existing law, no law of this state restricting or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies is applicable to the State Bar, unless the Legislature expressly so declares. Except as specified, existing law requires every meeting of the board to be open to the public.
Existing law, the Bagley-Keene Open Meeting Act, requires that all meetings of a state body be open and public and that all persons be permitted to attend any meeting of a state body, subject to certain conditions and exceptions. A violation of these provisions is a misdemeanor.
Existing law exempts the board from the act, but requires the board to ensure that its open meeting requirements are consistent with, and conform to, the Bagley-Keene Open Meeting Act.
Existing law, the California Public Records Act, requires state and local agencies to make public records available for inspection, subject to certain exceptions.
This bill, commencing April 1, 2016, would make the State Bar subject to the Bagley-Keene Open Meeting Act. The bill would provide that the Bagley-Keene Open Meeting Act does not apply to the Judicial Nominees Evaluation Commission or the Committee of Bar Examiners. By expanding the scope of that crime, the bill would impose a state-mandated local program. The bill would also make the State Bar subject to the California Public Records Act. The bill would require any identifying information submitted by an applicant to the State Bar for admission and a license to practice law and all State Bar admission records to be confidential and would prohibit disclosure pursuant to any state law, including the California Public Records Act. The bill would make other conforming changes in this regard.
This bill would incorporate additional changes in Section 11121 of the Government Code proposed by AB 85 that would become operative only if AB 85 and this bill are both chaptered and become effective on or before January 1, 2016, and this bill is chaptered last.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law, the State Bar Act, provides for the licensure and regulation of attorneys by the State Bar of California, a public corporation. The State Bar is governed by a board of trustees. Existing law authorizes the board, among other duties, to aid in all matters pertaining to the improvement of the administration of justice, including all matters that may advance the professional interests of the members of the State Bar.
Existing law requires the State Bar to issue an Annual Discipline Report describing the performance and condition of the State Bar discipline system. Existing law requires the report to cover the previous calendar year and to include accurate and complete descriptions of, among other things, the existing backlog of cases within the discipline system and a description of the programs at the State Bar directed at preventing acts warranting discipline. Existing law requires the board to appoint a lawyer admitted to practice in California to serve as chief trial counsel. The Office of the Chief Trial Counsel, which is responsible for reviewing charges of lawyer misconduct, investigates and prosecutes complaints about attorneys.
This bill would revise the content of the information in the report. The bill would additionally require the backlog of cases to include other matters opened in the Office of the Chief Trial Counsel and pending beyond 6 months after receipt, as specified.
Existing law, beginning January 1, 2015, until January 1, 2016, requires the board to charge an annual membership fee for active members of up to $315 for 2015.
This bill would, until January 1, 2017, require the board to charge that annual membership fee for 2016.
Existing law requires the State Bar to review its workload standards to measure the effectiveness and efficiency of its disciplinary activities, including, but not limited to, the State Bar Court and the Client Security Fund, and to provide guidance to the State Bar and the Legislature in allocating resources, as specified.
This bill would delete that requirement. The bill would, instead, require the State Bar to develop and implement a specified workforce plan for its discipline system and conduct a public sector compensation and benefits study to reassess the numbers and classifications of staff required to conduct the disciplinary activities. This The bill would require the State Bar to conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for the annual membership fee, as specified. The bill would require the State Bar to report to the Legislature by May 15, 2016.
Existing law requires the State Bar board to engage the services of an independent public accounting firm for an audit of its financial statement for each fiscal year.
This bill would require, effective January 1, 2016, the State Bar to contract with the California State Auditors Office to conduct an in-depth financial audit of the State Bar, including an audit of its financial statement, internal controls, and relevant management practices, as provided, and would require the office to provide a copy of the audit to the State Bar board, the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
Under existing law, no law of this state restricting or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies is applicable to the State Bar, unless the Legislature expressly so declares. Except as specified, existing law requires every meeting of the board to be open to the public.
Existing law, the Bagley-Keene Open Meeting Act, requires that all meetings of a state body be open and public and that all persons be permitted to attend any meeting of a state body, subject to certain conditions and exceptions. A violation of these provisions is a misdemeanor.
Existing law exempts the board from the act, but requires the board to ensure that its open meeting requirements are consistent with, and conform to, the Bagley-Keene Open Meeting Act.
Existing law, the California Public Records Act, requires state and local agencies to make public records available for inspection, subject to certain exceptions.
This bill would make the State Bar subject to the Bagley-Keene Open Meeting Act. By expanding the scope of that crime, the bill would impose a state-mandated local program. The bill would also make the State Bar subject to the California Public Records Act. The bill would make other conforming changes in this regard.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law, the State Bar Act, provides for the licensure and regulation of attorneys by the State Bar of California, a public corporation. The State Bar is governed by a board of trustees. Existing law authorizes the board, among other duties, to aid in all matters pertaining to the improvement of the administration of justice, including all matters that may advance the professional interests of the members of the State Bar. Existing law, beginning January 1, 2015, until January 1, 2016, requires the board to charge an annual membership fee for active members of up to $315 for 2015.
Existing law requires the State Bar to issue an Annual Discipline Report describing the performance and condition of the State Bar discipline system. Existing law requires the report to cover the previous calendar year and to include accurate and complete descriptions of, among other things, the existing backlog of cases within the discipline system and a description of the programs at the State Bar directed at preventing acts warranting discipline.
This bill would revise the content of the information in the report. The bill would additionally require the backlog of cases to include other matters opened in the Office of the Chief Trial Counsel and pending beyond 6 months after receipt, as specified.
Existing law, beginning January 1, 2015, until January 1, 2016, requires the board to charge an annual membership fee for active members of up to $315 for 2015.
This bill would, until January 1, 2017, require the board to charge that annual membership fee for 2016.
Existing law requires the State Bar to review its workload standards to measure the effectiveness and efficiency of its disciplinary activities, including, but not limited to, the State Bar Court and the Client Security Fund, and to provide guidance to the State Bar and the Legislature in allocating resources, as specified.
This bill would delete that requirement. The bill would, instead, require the State Bar to develop and implement a specified workforce plan for its discipline system and conduct a public sector compensation and benefits study to reassess the numbers and classifications of staff required to conduct the disciplinary activities. This bill would require the State Bar to conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for the annual membership fee, as specified. The bill would require the State Bar to report to the Legislature by May 15, 2016.
Existing law requires the State Bar to engage the services of an independent public accounting firm for an audit of its financial statement for each fiscal year.
This bill would require, effective January 1, 2016, the State Bar to contract with the California State Auditors Office to conduct an in-depth financial audit of the State Bar, including an audit of its financial statement, internal controls, and relevant management practices, as provided, and would require the office to provide a copy of the audit to the State Bar, the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
Existing law, the State Bar Act, provides for the licensure and regulation of attorneys by the State Bar of California, a public corporation. The State Bar is governed by a board of trustees. Existing law authorizes the board, among other duties, to aid in all matters pertaining to the improvement of the administration of justice, including all matters that may advance the professional interests of the members of the State Bar. Existing law, beginning January 1, 2015, until January 1, 2016, requires the board to charge an annual membership fee for active members of up to $315 for 2015.
This bill would, until January 1, 2017, require the board to charge that annual membership fee for 2016.
The State Bar of California is a public corporation. It is hereinafter designated as the State Bar.
The State Bar has perpetual succession and a seal and it may sue and be sued. It may, for the purpose of carrying into effect and promoting its objectives:
(a)Make contracts.
(b)Borrow money, contract debts, issue bonds, notes and debentures and secure the payment or performance of its obligations.
(c)Own, hold, use, manage and deal in and with real and personal property.
(d)Construct, alter, maintain and repair buildings and other improvements to real property.
(e)Purchase, lease, obtain options upon, acquire by gift, bequest, devise or otherwise, any real or personal property or any interest therein.
(f)Sell, lease, exchange, convey, transfer, assign, encumber, pledge, dispose of any of its real or personal property or any interest therein, including without limitation all or any portion of its income or revenues from membership fees paid or payable by members.
(g)Do all other acts incidental to the foregoing or necessary or expedient for the administration of its affairs and the attainment of its purposes.
Pursuant to those powers enumerated in subdivisions (a) to (g), inclusive, it is recognized that the State Bar has authority to raise revenue in addition to that provided for in Section 6140 and other statutory provisions. The State Bar is empowered to raise that additional revenue by any lawful means, including, but not limited to, the creation of foundations or not-for-profit corporations.
The State Bar shall conspicuously publicize to its members in the annual dues statement and other appropriate communications, including its Web site and electronic communications, that its members have the right to limit the sale or disclosure of member information not reasonably related to regulatory purposes. In those communications the State Bar shall note the location of the State Bars privacy policy, and shall also note the simple procedure by which a member may exercise his or her right to prohibit or restrict, at the members option, the sale or disclosure of member information not reasonably related to regulatory purposes. On or before May 1, 2005, the State Bar shall report to the Assembly and Senate Committees on Judiciary regarding the procedures that it has in place to ensure that members can appropriately limit the use of their member information not reasonably related to regulatory purposes, and the number of members choosing to utilize these procedures.
No law of this state restricting, or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies, or classes thereof, including, but not by way of limitation, the provisions contained in Division 3 (commencing with Section 11000), Division 4 (commencing with Section 16100), and Part 1 (commencing with Section 18000) and Part 2 (commencing with Section 18500) of Division 5, of Title 2 of the Government Code, shall be applicable to the State Bar, unless the Legislature expressly so declares. Notwithstanding the foregoing or any other law, pursuant to Sections 6026.7 and 6026.11, the State Bar is subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and, commencing April 1, 2016, the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
SEC. 2.Section 6026.5 of the Business and Professions Code is amended to read:6026.5.(a)Every meeting of the board shall be open to the public except those meetings, or portions thereof, relating to:
(1)Consultation with counsel concerning pending or prospective litigation.
(2)Involuntary enrollment of active members as inactive members due to mental infirmity or illness or addiction to intoxicants or drugs.
(3)The qualifications of judicial appointees, nominees, or candidates.
(4)The appointment, employment or dismissal of an employee, consultant, or officer of the State Bar or to hear complaints or charges brought against such employee, consultant, or officer unless such person requests a public hearing.
(5)Disciplinary investigations and proceedings, including resignations with disciplinary investigations or proceedings pending, and reinstatement proceedings.
(6)Appeals to the board from decisions of the Board of Legal Specialization refusing to certify or recertify an applicant or suspending or revoking a specialists certificate.
(7)Appointments to or removals from committees, boards, or other entities.
(8)Joint meetings with agencies provided in Article VI of the California Constitution.
(b)This section shall remain in effect only until April 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before April 1, 2016, deletes or extends that date.
SEC. 3.Section 6026.5 is added to the Business and Professions Code, to read:6026.5.(a)Pursuant to Section 6026.7, every meeting of the board shall be open to the public except those meetings, or portions thereof, relating to:
(1)Consultation with counsel concerning pending or prospective litigation.
(2)Involuntary enrollment of active members as inactive members due to mental infirmity or illness or addiction to intoxicants or drugs.
(3)The qualifications of judicial appointees, nominees, or candidates.
(4)The appointment, employment, or dismissal of an employee, consultant, or officer of the State Bar or to hear complaints or charges brought against such employee, consultant, or officer, unless such person requests a public hearing.
(5)Disciplinary investigations and proceedings, including resignations with disciplinary investigations or proceedings pending, and reinstatement proceedings.
(6)Appeals to the board from decisions of the Board of Legal Specialization refusing to certify or recertify an applicant or suspending or revoking a specialists certificate.
(7)Appointments to or removals from committees, boards, or other entities.
(8)Joint meetings with agencies provided in Article VI of the California Constitution.
(b)This section shall become operative on April 1, 2016.
SEC. 4.Section 6026.7 of the Business and Professions Code is amended to read:6026.7.(a)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).
(b)This section shall remain in effect only until April 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before April 1, 2016, deletes or extends that date.
SEC. 5.Section 6026.7 is added to the Business and Professions Code, to read:6026.7.(a)The State Bar is subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) and all meetings of the State Bar are subject to the Bagley-Keene Open Meeting Act.
(b)Notwithstanding any other law, the Bagley-Keene Open Meeting Act shall not apply to the Judicial Nominees Evaluation Commission or the Committee of Bar Examiners.
(c)This section shall become operative on April 1, 2016.
SEC. 6.Section 6026.11 is added to the Business and Professions Code, to read:6026.11.The State Bar is subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and all public records and writings of the State Bar are subject to the California Public Records Act.
SEC. 7.Section 6060.2 of the Business and Professions Code is amended to read:6060.2.All investigations or proceedings conducted by the State Bar concerning the moral character of an applicant shall be confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) unless the applicant, in writing, waives the confidentiality. However, the records of the proceeding may be subject to lawfully issued subpoenas.
SEC. 8.Section 6060.25 is added to the Business and Professions Code, immediately following Section 6060.2, to read:6060.25.Notwithstanding any other law, any identifying information submitted by an applicant to the State Bar for admission and a license to practice law and all State Bar admission records, including, but not limited to, bar examination scores, law school grade point average (GPA), undergraduate GPA, Law School Admission Test scores, race or ethnicity, and any information contained within the State Bar Admissions database or any file or other data created by the State Bar with information submitted by the applicant that may identify an individual applicant, shall be confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).
SEC. 9.Section 6086.1 of the Business and Professions Code is amended to read:6086.1.(a)(1)Subject to subdivision (b), and except as otherwise provided by law, hearings and records of original disciplinary proceedings in the State Bar Court shall be public, following a notice to show cause.
(2)Subject to subdivision (b), and except as otherwise provided by law, hearings and records of the following matters shall be public:
(A)Filings for involuntary inactive enrollment or restriction under subdivision (a), (c), (d), or (e) of Section 6007.
(B)Petitions for reinstatement under Section 6078.
(C)Proceedings for suspension or disbarment under Section 6101 or 6102.
(D)Payment information from the Client Security Fund pursuant to Section 6140.5.
(E)Actions to cease a law practice or assume a law practice under Section 6180 or 6190.
(b)All disciplinary investigations are confidential until the time that formal charges are filed and all investigations of matters identified in paragraph (2) of subdivision (a) are confidential until the formal proceeding identified in paragraph (2) of subdivision (a) is instituted. These investigations shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This confidentiality requirement may be waived under any of the following exceptions:
(1)The member whose conduct is being investigated may waive confidentiality.
(2)The Chief Trial Counsel or President of the State Bar may waive confidentiality, but only when warranted for protection of the public. Under those circumstances, after private notice to the member, the Chief Trial Counsel or President of the State Bar may issue, if appropriate, one or more public announcements or make information public confirming the fact of an investigation or proceeding, clarifying the procedural aspects and current status, and defending the right of the member to a fair hearing. If the Chief Trial Counsel or President of the State Bar for any reason declines to exercise the authority provided by this paragraph, or disqualifies himself or herself from acting under this paragraph, he or she shall designate someone to act in his or her behalf. Conduct of a member that is being inquired into by the State Bar but that is not the subject of a formal investigation shall not be disclosed to the public.
(3)The Chief Trial Counsel or his or her designee may waive confidentiality pursuant to Section 6044.5.
(c)Notwithstanding the confidentiality of investigations, the State Bar shall disclose to any member of the public so inquiring, any information reasonably available to it pursuant to subdivision (o) of Section 6068, and to Sections 6086.7, 6086.8, and 6101, concerning a member of the State Bar which is otherwise a matter of public record, including civil or criminal filings and dispositions.
SEC. 10.Section 6086.15 of the Business and Professions Code is amended to read:6086.15.(a)The State Bar shall issue an Annual Discipline Report by April 30 of each year describing the performance and condition of the State Bar discipline system, including all matters that affect public protection. The report shall cover the previous calendar year and shall include accurate and complete descriptions of all of the following:
(1)The existing backlog of cases within the discipline system, including the number of complaints as of December 31 of the preceding year that were pending beyond six months after receipt without dismissal, admonition, or the filing of a notice of disciplinary charges. In addition to written complaints received by the State Bar, the backlog of cases shall include other matters opened in the Office of the Chief Trial Counsel and pending beyond six months after receipt without the filing of notices of disciplinary charges, or the initiation of other disciplinary proceedings in the State Bar Court for the purpose of seeking the imposition of discipline against a member of the State Bar, and tables showing time periods beyond six months and the number in each category and a discussion of the reason for the extended periods.
(2)The number of inquiries and complaints and their disposition.
(3)The number, average pending times, and types of matters self-reported by members of the State Bar pursuant to subdivision (o) of Section 6068 and subdivision (c) of Section 6086.8.
(4)The number, average pending times, and types of matters reported by other sources pursuant to Sections 6086.7, 6086.8, 6091.1, subdivision (b) of Section 6101, and Section 6175.6.
(5)The speed of complaint handling and dispositions by type, measured by the median and the average processing times.
(6)The number, average pending times, and types of filed notices of disciplinary charges and formal disciplinary outcomes.
(7)The number, average pending times, and types of other matters, including petitions to terminate practice pursuant to Section 6180 or 6190, interim suspensions and license restrictions pursuant to Section 6007, motions to enforce a binding arbitration award, judgment, or agreement pursuant to subdivision (d) of Section 6203, motions to revoke probation, letters of warning, private reprovals, admonitions, and agreements in lieu of discipline.
(8)The number, average pending times, and outcomes of complaints involving a State Bar member who has been disbarred or who has resigned, and is engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities, or petitions to terminate practice pursuant to Section 6180.
(9)The number, average pending times, and outcomes of complaints against nonattorneys engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities; petitions to terminate practice pursuant to Section 6126.3; or referrals to prosecuting authorities or actions by the State Bar pursuant to Section 6126.7.
(10)A description of the condition of the Client Security Fund, including an accounting of payouts.
(11)An accounting of the cost of the discipline system by function.
(b)The Annual Discipline Report shall include statistical information presented in a consistent manner for year-to-year comparison and shall compare the information required under subdivision (a) to similar information for the previous three years.
(c)The Annual Discipline Report shall be presented to the Chief Justice of California, to the Governor, to the Speaker of the Assembly, to the President pro Tempore of the Senate, and to the Assembly and Senate Judiciary Committees, for their consideration and shall be considered a public document.
SEC. 11.Section 6090.6 of the Business and Professions Code is amended to read:6090.6.In a disciplinary proceeding, the State Bar shall have access, on an ex parte basis, to all nonpublic court records relevant to the competence or performance of its members, provided that these records shall remain confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This access, for investigation and enforcement purposes, shall not be limited by any court order sealing those records, except a court order authorized by Section 851.6, 851.7, 851.8, or 851.85 of the Penal Code. The State Bar may disclose publicly the nature and content of those records, including sealed records other than those specified immediately above in this section, after notice of intention to disclose all or a part of the records has been given to the parties in the underlying action. A party to the underlying action who would be adversely affected by the disclosure may serve notice on the State Bar within 10 days of receipt of the notice of intention to disclose the records that it opposes the disclosure and will seek a hearing in the court of competent jurisdiction on an expedited basis.
SEC. 12.Section 6140 of the Business and Professions Code, as amended by Section 3 of Chapter 429 of the Statutes of 2014, is amended to read:6140.(a)The board shall fix the annual membership fee for active members for 2016 at a sum not exceeding three hundred fifteen dollars ($315).
(b)The annual membership fee for active members is payable on or before the first day of February of each year. If the board finds it appropriate and feasible, it may provide by rule for payment of fees on an installment basis with interest, by credit card, or other means, and may charge members choosing any alternative method of payment an additional fee to defray costs incurred by that election.
(c)This section shall remain in effect only until January 1, 2017, and, as of that date, is repealed, unless a later enacted statute, that is enacted before January 1, 2017, deletes or extends that date.
SEC. 13.Section 6140.16 of the Business and Professions Code is repealed.SEC. 14.Section 6140.16 is added to the Business and Professions Code, to read:6140.16.(a)To align its staffing with its mission to protect the public as provided in Section 6001.1 and to provide guidance to the State Bar and the Legislature in allocating resources, the State Bar shall develop and implement a workforce plan for its discipline system and conduct a public sector compensation and benefits study. The workforce plan and compensation study shall be used to reassess the numbers and classifications of staff required to conduct the activities of the State Bars disciplinary activities.
(b)The workforce planning shall include the development and recommendation of an appropriate backlog goal, an assessment of the staffing needed to achieve that goal while ensuring that the discipline process is not compromised, and the creation of policies and procedures sufficient to provide adequate guidance to the staff of each unit within the discipline system.
(c)In addition to the requirements in subdivisions (a) and (b), the State Bar shall conduct a thorough analysis of its priorities and necessary operating costs and develop a spending plan, which includes its fund balances, to determine a reasonable amount for the annual membership fee that reflects its actual or known costs and those to implement its workforce plan.
(d)The State Bar shall submit a report on its workforce plan and spending plan to the Legislature by May 15, 2016, so that the plans can be reviewed in conjunction with the bill that would authorize the imposition of the State Bars membership fee. The report shall be submitted in compliance with Section 9795 of the Government Code. The State Bar shall complete and implement its workforce plan by December 31, 2016.
SEC. 15.Section 6145 of the Business and Professions Code is amended to read:6145.(a)The board shall engage the services of an independent national or regional public accounting firm with at least five years of experience in governmental auditing for an audit of its financial statement for each fiscal year. The financial statement shall be promptly certified under oath by the Treasurer of the State Bar, and a copy of the audit and financial statement shall be submitted within 120 days of the close of the fiscal year to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
The audit shall examine the receipts and expenditures of the State Bar and the State Bar sections to ensure that the receipts of the sections are being applied, and their expenditures are being made, in compliance with subdivision (a) of Section 6031.5, and that the receipts of the sections are applied only to the work of the sections.
The audit also shall examine the receipts and expenditures of the State Bar to ensure that the funds collected on behalf of the Conference of Delegates of California Bar Associations as the independent successor entity to the former Conference of Delegates of the State Bar are conveyed to that entity, that the State Bar has been paid or reimbursed for the full cost of any administrative and support services provided to the successor entity, including the collection of fees or donations on its behalf, and that no mandatory dues are being used to fund the activities of the successor entity.
In selecting the accounting firm, the board shall consider the value of continuity, along with the risk that continued long-term engagements of an accounting firm may affect the independence of that firm.
(b)The board shall contract with the California State Auditors Office to conduct a performance audit of the State Bars operations from July 1, 2000, to December 31, 2000, inclusive. A copy of the performance audit shall be submitted by May 1, 2001, to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
Every two years thereafter, the board shall contract with the California State Auditors Office to conduct a performance audit of the State Bars operations for the respective fiscal year, commencing with January 1, 2002, to December 31, 2002, inclusive. A copy of the performance audit shall be submitted within 120 days of the close of the fiscal year for which the audit was performed to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
For the purposes of this subdivision, the California State Auditors Office may contract with a third party to conduct the performance audit. This subdivision is not intended to reduce the number of audits the California State Auditors Office may otherwise be able to conduct.
(c)Effective January 1, 2016, the board shall contract with the California State Auditors Office to conduct an in-depth financial audit of the State Bar, including an audit of its financial statement, internal controls, and relevant management practices. The contract shall include reimbursement for the California State Auditors Office for the costs of conducting the audit. The audit shall, at a minimum, examine the revenues, expenditures, and reserves of the State Bar, including all fund transfers. The California State Auditors Office shall commence the audit no later than January 1, 2016, and a copy of the audit shall be submitted by May 15, 2016, to the board, the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary. The audit shall be submitted in compliance with Section 9795 of the Government Code. This subdivision shall cease to be operative January 1, 2017.
SEC. 16.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 and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), 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. 17.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 attorneys representation involved civil law, or criminal law, if the attorneys 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 shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), and may not be disclosed in any subsequent arbitration or other proceedings.
SEC. 18.Section 6232 of the Business and Professions Code is amended to read:6232.(a)The committee shall establish practices and procedures for the acceptance, denial, completion, or termination of attorneys in the Attorney Diversion and Assistance Program, and may recommend rehabilitative criteria for adoption by the board for acceptance, denial, completion of, or termination from, the program.
(b)An attorney currently under investigation by the State Bar may enter the program in the following ways:
(1)By referral of the Office of the Chief Trial Counsel.
(2)By referral of the State Bar Court following the initiation of a disciplinary proceeding.
(3)Voluntarily, and in accordance with terms and conditions agreed upon by the attorney participant with the Office of the Chief Trial Counsel or upon approval by the State Bar Court, as long as the investigation is based primarily on the self-administration of drugs or alcohol or the illegal possession, prescription, or nonviolent procurement of drugs for self-administration, or on mental illness, and does not involve actual harm to the public or his or her clients. An attorney seeking entry under this paragraph may be required to execute an agreement that violations of this chapter, or other statutes that would otherwise be the basis for discipline, may nevertheless be prosecuted if the attorney is terminated from the program for failure to comply with program requirements.
(c)Neither acceptance into nor participation in the Attorney Diversion and Assistance Program shall relieve the attorney of any lawful duties and obligations otherwise required by any agreements or stipulations with the Office of the Chief Trial Counsel, court orders, or applicable statutes relating to attorney discipline.
(d)An attorney who is not the subject of a current investigation may voluntarily enter, whether by self-referral or referral by a third party, the diversion and assistance program on a confidential basis and such information shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). Confidentiality pursuant to this subdivision shall be absolute unless waived by the attorney.
SEC. 19.Section 6234 of the Business and Professions Code is amended to read:6234.Any information provided to or obtained by the Attorney Diversion and Assistance Program, or any subcommittee or agent thereof, shall be as follows:
(a)Confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This confidentiality shall be absolute unless waived by the attorney.
(b)Exempt from the provisions of Section 6086.1.
(c)Not discoverable or admissible in any civil proceeding without the written consent of the attorney to whom the information pertains.
(d)Not discoverable or admissible in any disciplinary proceeding without the written consent of the attorney to whom the information pertains.
(e)Except with respect to the provisions of subdivision (d) of Section 6232, the limitations on the disclosure and admissibility of information in this section shall not apply to information relating to an attorneys noncooperation with, or unsuccessful completion of, the Attorney Diversion and Assistance Program, or any subcommittee or agent thereof, or to information otherwise obtained by the Office of the Chief Trial Counsel, by independent means, or from any other lawful source.
SEC. 20.Section 6252 of the Government Code is amended to read:6252.As used in this chapter:
(a)Local agency includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.
(b)Member of the public means any person, except a member, agent, officer, or employee of a federal, state, or local agency acting within the scope of his or her membership, agency, office, or employment.
(c)Person includes any natural person, corporation, partnership, limited liability company, firm, or association.
(d)Public agency means any state or local agency.
(e)Public records includes any writing containing information relating to the conduct of the publics business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. Public records in the custody of, or maintained by, the Governors office means any writing prepared on or after January 6, 1975.
(f)(1)State agency means every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constitution.
(2)Notwithstanding paragraph (1) or any other law, state agency shall also mean the State Bar of California, as described in Section 6001 of the Business and Professions Code.
(g)Writing means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.
SEC. 21.Section 6276.04 of the Government Code is amended to read:6276.04.Aeronautics Act, reports of investigations and hearings, Section 21693, Public Utilities Code.
Agricultural producers marketing, access to records, Section 59616, Food and Agricultural Code.
Aiding disabled voters, Section 14282, Elections Code.
Air pollution data, confidentiality of trade secrets, Section 6254.7, and Sections 42303.2 and 43206, Health and Safety Code.
Air toxics emissions inventory plans, protection of trade secrets, Section 44346, Health and Safety Code.
Alcohol and drug abuse records and records of communicable diseases, confidentiality of, Section 123125, Health and Safety Code.
Alcoholic beverage licensees, confidentiality of corporate proprietary information, Section 25205, Business and Professions Code.
Ambulatory Surgery Data Record, confidentiality of identifying information, Section 128737, Health and Safety Code.
Apiary registration information, confidentiality of, Section 29041, Food and Agricultural Code.
Archaeological site information and reports maintained by state and local agencies, disclosure not required, Section 6254.10.
Arrest not resulting in conviction, disclosure or use of records, Sections 432.7 and 432.8, Labor Code.
Arsonists, registered, confidentiality of certain information, Section 457.1, Penal Code.
Artificial insemination, donor not natural father, confidentiality of records, Section 7613, Family Code.
Assessors records, confidentiality of information in, Section 408, Revenue and Taxation Code.
Assessors records, confidentiality of information in, Section 451, Revenue and Taxation Code.
Assessors records, display of documents relating to business affairs or property of another, Section 408.2, Revenue and Taxation Code.
Assigned risk plans, rejected applicants, confidentiality of information, Section 11624, Insurance Code.
Attorney applicant, investigation by State Bar, confidentiality of, Section 6060.2, Business and Professions Code.
Attorney applicant, information submitted by applicant and State Bar admission records, confidentiality of, Section 6060.25, Business and Professions Code.
Attorney-client confidential communication, Section 6068, Business and Professions Code, and Sections 952 and 954, Evidence Code.
Attorney, disciplinary proceedings, confidentiality prior to formal proceedings, Section 6086.1, Business and Professions Code.
Attorney, disciplinary proceeding, State Bar access to nonpublic court records, Section 6090.6, Business and Professions Code.
Attorney, law corporation, investigation by State Bar, confidentiality of, Section 6168, Business and Professions Code.
Attorney work product confidentiality in administrative adjudication, Section 11507.6.
Attorney, work product, confidentiality of, Section 6202, Business and Professions Code.
Attorney work product, discovery, Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of the Code of Civil Procedure.
Auditor General, access to records for audit purposes, Sections 10527 and 10527.1.
Auditor General, disclosure of audit records, Section 10525.
Automated forward facing parking control devices, confidentiality of video imaging records from the devices, Section 40240, Vehicle Code.
Automated traffic enforcement system, confidentiality of photographic records made by the system, Section 21455.5, Vehicle Code.
Automobile Insurance Claims Depository, confidentiality of information, Section 1876.3, Insurance Code.
Automobile insurance, investigation of fraudulent claims, confidential information, Section 1872.8, Insurance Code.
Avocado handler transaction records, confidentiality of information, Section 44984, Food and Agricultural Code.
SEC. 22.Section 11121 of the Government Code is amended to read:11121.As used in this article, state body means each of the following:
(a)Every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order.
(b)A board, commission, committee, or similar multimember body that exercises any authority of a state body delegated to it by that state body.
(c)An advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body of a state body, if created by formal action of the state body or of any member of the state body, and if the advisory body so created consists of three or more persons.
(d)A board, commission, committee, or similar multimember body on which a member of a body that is a state body pursuant to this section serves in his or her official capacity as a representative of that state body and that is supported, in whole or in part, by funds provided by the state body, whether the multimember body is organized and operated by the state body or by a private corporation.
(e)Notwithstanding subdivision (a) of Section 11121.1, the State Bar of California, as described in Section 6001 of the Business and Professions Code. This subdivision shall become operative on April 1, 2016.
SEC. 22.5.Section 11121 of the Government Code is amended to read:11121.As used in this article, state body means each of the following:
(a)Every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order.
(b)A board, commission, committee, or similar multimember body that exercises any authority of a state body delegated to it by that state body.
(c)An advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body of a state body, if created by formal action of the state body or of any member of the state body, and if the advisory body so created consists of three or more persons, except as in subdivision (d).
(d)A board, commission, committee, or similar multimember body on which a member of a body that is a state body pursuant to this section serves in his or her official capacity as a representative of that state body and that is supported, in whole or in part, by funds provided by the state body, whether the multimember body is organized and operated by the state body or by a private corporation.
(e)Notwithstanding subdivision (a) of Section 11121.1, the State Bar of California, as described in Section 6001 of the Business and Professions Code. This subdivision shall become operative on April 1, 2016.
SEC. 23.Section 11121.1 of the Government Code is amended to read:11121.1.As used in this article, state body does not include any of the following:
(a)Except as provided in subdivision (e) of Section 11121, state agencies provided for in Article VI of the California Constitution.
(b)Districts or other local agencies whose meetings are required to be open to the public pursuant to the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5).
(c)State agencies provided for in Article IV of the California Constitution whose meetings are required to be open to the public pursuant to the Grunsky-Burton Open Meeting Act (Article 2.2 (commencing with Section 9027) of Chapter 1.5 of Part 1 of Division 2 of Title 2).
(d)State agencies when they are conducting proceedings pursuant to Section 3596.
(e)State agencies provided for in Section 109260 of the Health and Safety Code, except as provided in Section 109390 of the Health and Safety Code.
(f)The Credit Union Advisory Committee established pursuant to Section 14380 of the Financial Code.
SEC. 24.Section 22.5 of this bill incorporates amendments to Section 11121 of the Government Code proposed by this bill and Assembly Bill 85. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 11121 of the Government Code, and (3) this bill is enacted after Assembly Bill 85, in which case Section 11121 of the Government Code, as amended by Assembly Bill 85, shall remain operative only until the operative date of this bill, at which time Section 22.5 of this bill shall become operative, and Section 22 of this bill shall not become operative.
SEC. 25.The Legislature finds and declares that this act imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to allow the State Bar of California to fully accomplish its objectives, including, but not limited to, its licensing, regulatory, and disciplinary functions, it is imperative to protect the privacy interests of those persons submitting information to the State Bar, including any information submitted by an applicant to the State Bar for admission and a license to practice law, those applicants, members, and law corporations subject to investigation and discipline by the State Bar, and those persons participating in discussions and offers of settlement pursuant to arbitration or mediation in order to ensure that any personal or sensitive information is protected as confidential information.
SEC. 26.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
The State Bar of California is a public corporation. It is hereinafter designated as the State Bar.
The State Bar has perpetual succession and a seal and it may sue and be sued. It may, for the purpose of carrying into effect and promoting its objectives:
(a)Make contracts.
(b)Borrow money, contract debts, issue bonds, notes and debentures and secure the payment or performance of its obligations.
(c)Own, hold, use, manage and deal in and with real and personal property.
(d)Construct, alter, maintain and repair buildings and other improvements to real property.
(e)Purchase, lease, obtain options upon, acquire by gift, bequest, devise or otherwise, any real or personal property or any interest therein.
(f)Sell, lease, exchange, convey, transfer, assign, encumber, pledge, dispose of any of its real or personal property or any interest therein, including without limitation all or any portion of its income or revenues from membership fees paid or payable by members.
(g)Do all other acts incidental to the foregoing or necessary or expedient for the administration of its affairs and the attainment of its purposes.
Pursuant to those powers enumerated in subdivisions (a) to (g), inclusive, it is recognized that the State Bar has authority to raise revenue in addition to that provided for in Section 6140 and other statutory provisions. The State Bar is empowered to raise that additional revenue by any lawful means, including, but not limited to, the creation of foundations or not-for-profit corporations.
The State Bar shall conspicuously publicize to its members in the annual dues statement and other appropriate communications, including its Web site and electronic communications, that its members have the right to limit the sale or disclosure of member information not reasonably related to regulatory purposes. In those communications the State Bar shall note the location of the State Bars privacy policy, and shall also note the simple procedure by which a member may exercise his or her right to prohibit or restrict, at the members option, the sale or disclosure of member information not reasonably related to regulatory purposes. On or before May 1, 2005, the State Bar shall report to the Assembly and Senate Committees on Judiciary regarding the procedures that it has in place to ensure that members can appropriately limit the use of their member information not reasonably related to regulatory purposes, and the number of members choosing to utilize these procedures.
No law of this state restricting, or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies, or classes thereof, including, but not by way of limitation, the provisions contained in Division 3 (commencing with Section 11000), Division 4 (commencing with Section 16100), and Part 1 (commencing with Section 18000) and Part 2 (commencing with Section 18500) of Division 5, of Title 2 of the Government Code, shall be applicable to the State Bar, unless the Legislature expressly so declares. Notwithstanding the foregoing or any other law, pursuant to Sections 6026.7 and 6026.11, the State Bar is subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and, commencing April 1, 2016, the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
SEC. 2.Section 6026.5 of the Business and Professions Code is amended to read:6026.5.(a)Every meeting of the board shall be open to the public except those meetings, or portions thereof, relating to:
(1)Consultation with counsel concerning pending or prospective litigation.
(2)Involuntary enrollment of active members as inactive members due to mental infirmity or illness or addiction to intoxicants or drugs.
(3)The qualifications of judicial appointees, nominees, or candidates.
(4)The appointment, employment or dismissal of an employee, consultant, or officer of the State Bar or to hear complaints or charges brought against such employee, consultant, or officer unless such person requests a public hearing.
(5)Disciplinary investigations and proceedings, including resignations with disciplinary investigations or proceedings pending, and reinstatement proceedings.
(6)Appeals to the board from decisions of the Board of Legal Specialization refusing to certify or recertify an applicant or suspending or revoking a specialists certificate.
(7)Appointments to or removals from committees, boards, or other entities.
(8)Joint meetings with agencies provided in Article VI of the California Constitution.
(b)
This section shall remain in effect only until April 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before April 1, 2016, deletes or extends that date.
SEC. 3.Section 6026.5 is added to the Business and Professions Code, to read:6026.5.(a)Pursuant to Section 6026.7, every meeting of the board shall be open to the public except those meetings, or portions thereof, relating to:
(1)Consultation with counsel concerning pending or prospective litigation.
(2)Involuntary enrollment of active members as inactive members due to mental infirmity or illness or addiction to intoxicants or drugs.
(3)The qualifications of judicial appointees, nominees, or candidates.
(4)The appointment, employment, or dismissal of an employee, consultant, or officer of the State Bar or to hear complaints or charges brought against such employee, consultant, or officer, unless such person requests a public hearing.
(5)Disciplinary investigations and proceedings, including resignations with disciplinary investigations or proceedings pending, and reinstatement proceedings.
(6)Appeals to the board from decisions of the Board of Legal Specialization refusing to certify or recertify an applicant or suspending or revoking a specialists certificate.
(7)Appointments to or removals from committees, boards, or other entities.
(8)Joint meetings with agencies provided in Article VI of the California Constitution.
(b)This section shall become operative on April 1, 2016.
SEC. 4.Section 6026.7 of the Business and Professions Code is amended to read:6026.7.(a)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).
(b)
This section shall remain in effect only until April 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before April 1, 2016, deletes or extends that date.
SEC. 5.Section 6026.7 is added to the Business and Professions Code, to read:6026.7.(a)The State Bar is subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) and all meetings of the State Bar are subject to the Bagley-Keene Open Meeting Act.
(b)Notwithstanding any other law, the Bagley-Keene Open Meeting Act shall not apply to the Judicial Nominees Evaluation Commission or the Committee of Bar Examiners.
(c)This section shall become operative on April 1, 2016.
SEC. 6.Section 6026.11 is added to the Business and Professions Code, to read:6026.11.The State Bar is subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and all public records and writings of the State Bar are subject to the California Public Records Act.
SEC. 7.Section 6060.2 of the Business and Professions Code is amended to read:6060.2.All investigations or proceedings conducted by the State Bar concerning the moral character of an applicant shall be confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) unless the applicant, in writing, waives the confidentiality. However, the records of the proceeding may be subject to lawfully issued subpoenas.
SEC. 8.Section 6060.25 is added to the Business and Professions Code, immediately following Section 6060.2, to read:6060.25.Notwithstanding any other law, any identifying information submitted by an applicant to the State Bar for admission and a license to practice law and all State Bar admission records, including, but not limited to, bar examination scores, law school grade point average (GPA), undergraduate GPA, Law School Admission Test scores, race or ethnicity, and any information contained within the State Bar Admissions database or any file or other data created by the State Bar with information submitted by the applicant that may identify an individual applicant, shall be confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).
SEC. 9.Section 6086.1 of the Business and Professions Code is amended to read:6086.1.(a)(1)Subject to subdivision (b), and except as otherwise provided by law, hearings and records of original disciplinary proceedings in the State Bar Court shall be public, following a notice to show cause.
(2)Subject to subdivision (b), and except as otherwise provided by law, hearings and records of the following matters shall be public:
(A)Filings for involuntary inactive enrollment or restriction under subdivision (a), (c), (d), or (e) of Section 6007.
(B)Petitions for reinstatement under Section 6078.
(C)Proceedings for suspension or disbarment under Section 6101 or 6102.
(D)Payment information from the Client Security Fund pursuant to Section 6140.5.
(E)Actions to cease a law practice or assume a law practice under Section 6180 or 6190.
(b)All disciplinary investigations are confidential until the time that formal charges are filed and all investigations of matters identified in paragraph (2) of subdivision (a) are confidential until the formal proceeding identified in paragraph (2) of subdivision (a) is instituted. These investigations shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This confidentiality requirement may be waived under any of the following exceptions:
(1)The member whose conduct is being investigated may waive confidentiality.
(2)The Chief Trial Counsel or President of the State Bar may waive confidentiality, but only when warranted for protection of the public. Under those circumstances, after private notice to the member, the Chief Trial Counsel or President of the State Bar may issue, if appropriate, one or more public announcements or make information public confirming the fact of an investigation or proceeding, clarifying the procedural aspects and current status, and defending the right of the member to a fair hearing. If the Chief Trial Counsel or President of the State Bar for any reason declines to exercise the authority provided by this paragraph, or disqualifies himself or herself from acting under this paragraph, he or she shall designate someone to act in his or her behalf. Conduct of a member that is being inquired into by the State Bar but that is not the subject of a formal investigation shall not be disclosed to the public.
(3)The Chief Trial Counsel or his or her designee may waive confidentiality pursuant to Section 6044.5.
(c)Notwithstanding the confidentiality of investigations, the State Bar shall disclose to any member of the public so inquiring, any information reasonably available to it pursuant to subdivision (o) of Section 6068, and to Sections 6086.7, 6086.8, and 6101, concerning a member of the State Bar which is otherwise a matter of public record, including civil or criminal filings and dispositions.
SEC. 10.Section 6086.15 of the Business and Professions Code is amended to read:6086.15.(a)The State Bar shall issue an Annual Discipline Report by April 30 of each year describing the performance and condition of the State Bar discipline system, including all matters that affect public protection. The report shall cover the previous calendar year and shall include accurate and complete descriptions of all of the following:
(1)The existing backlog of cases within the discipline system, including the number of complaints as of December 31 of the preceding year that were pending beyond six months after receipt without dismissal, admonition, or the filing of a notice of disciplinary charges. In addition to written complaints received by the State Bar, the backlog of cases shall include other matters opened in the Office of the Chief Trial Counsel and pending beyond six months after receipt without the filing of notices of disciplinary charges, or the initiation of other disciplinary proceedings in the State Bar Court for the purpose of seeking the imposition of discipline against a member of the State Bar, and tables showing time periods beyond six months and the number in each category and a discussion of the reason for the extended periods.
(2)The number of inquiries and complaints and their disposition.
(3)The number, average pending times, and types of matters self-reported by members of the State Bar pursuant to subdivision (o) of Section 6068 and subdivision (c) of Section 6086.8.
(4)The number, average pending times, and types of matters reported by other sources pursuant to Sections 6086.7, 6086.8, 6091.1, subdivision (b) of Section 6101, and Section 6175.6.
(5)The speed of complaint handling and dispositions by type, measured by the median and the average processing times.
(6)The number, average pending times, and types of filed notices of disciplinary charges and formal disciplinary outcomes.
(7)The number, average pending times, and types of other matters, including petitions to terminate practice pursuant to Section 6180 or 6190, interim suspensions and license restrictions pursuant to Section 6007, motions to enforce a binding arbitration award, judgment, or agreement pursuant to subdivision (d) of Section 6203, motions to revoke probation, letters of warning, private reprovals, admonitions, and agreements in lieu of discipline.
(8)The number, average pending times, and outcomes of complaints involving a State Bar member who has been disbarred or who has resigned, and is engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities, or petitions to terminate practice pursuant to Section 6180.
(9)The number, average pending times, and outcomes of complaints against nonattorneys engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities; petitions to terminate practice pursuant to Section 6126.3; or referrals to prosecuting authorities or actions by the State Bar pursuant to Section 6126.7.
(10)A description of the condition of the Client Security Fund, including an accounting of payouts.
(11)An accounting of the cost of the discipline system by function.
(b)The Annual Discipline Report shall include statistical information presented in a consistent manner for year-to-year comparison and shall compare the information required under subdivision (a) to similar information for the previous three years.
(c)The Annual Discipline Report shall be presented to the Chief Justice of California, to the Governor, to the Speaker of the Assembly, to the President pro Tempore of the Senate, and to the Assembly and Senate Judiciary Committees, for their consideration and shall be considered a public document.
SEC. 11.Section 6090.6 of the Business and Professions Code is amended to read:6090.6.In a disciplinary proceeding, the State Bar shall have access, on an ex parte basis, to all nonpublic court records relevant to the competence or performance of its members, provided that these records shall remain confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This access, for investigation and enforcement purposes, shall not be limited by any court order sealing those records, except a court order authorized by Section 851.6, 851.7, 851.8, or 851.85 of the Penal Code. The State Bar may disclose publicly the nature and content of those records, including sealed records other than those specified immediately above in this section, after notice of intention to disclose all or a part of the records has been given to the parties in the underlying action. A party to the underlying action who would be adversely affected by the disclosure may serve notice on the State Bar within 10 days of receipt of the notice of intention to disclose the records that it opposes the disclosure and will seek a hearing in the court of competent jurisdiction on an expedited basis.
SEC. 12.Section 6140 of the Business and Professions Code, as amended by Section 3 of Chapter 429 of the Statutes of 2014, is amended to read:6140.(a)The board shall fix the annual membership fee for active members for 2016 at a sum not exceeding three hundred fifteen dollars ($315).
(b)The annual membership fee for active members is payable on or before the first day of February of each year. If the board finds it appropriate and feasible, it may provide by rule for payment of fees on an installment basis with interest, by credit card, or other means, and may charge members choosing any alternative method of payment an additional fee to defray costs incurred by that election.
(c)This section shall remain in effect only until January 1, 2017, and, as of that date, is repealed, unless a later enacted statute, that is enacted before January 1, 2017, deletes or extends that date.
SEC. 13.Section 6140.16 of the Business and Professions Code is repealed.SEC. 14.Section 6140.16 is added to the Business and Professions Code, to read:6140.16.(a)To align its staffing with its mission to protect the public as provided in Section 6001.1 and to provide guidance to the State Bar and the Legislature in allocating resources, the State Bar shall develop and implement a workforce plan for its discipline system and conduct a public sector compensation and benefits study. The workforce plan and compensation study shall be used to reassess the numbers and classifications of staff required to conduct the activities of the State Bars disciplinary activities.
(b)The workforce planning shall include the development and recommendation of an appropriate backlog goal, an assessment of the staffing needed to achieve that goal while ensuring that the discipline process is not compromised, and the creation of policies and procedures sufficient to provide adequate guidance to the staff of each unit within the discipline system.
(c)In addition to the requirements in subdivisions (a) and (b), the State Bar shall conduct a thorough analysis of its priorities and necessary operating costs and develop a spending plan, which includes its fund balances, to determine a reasonable amount for the annual membership fee that reflects its actual or known costs and those to implement its workforce plan.
(d)The State Bar shall submit a report on its workforce plan and spending plan to the Legislature by May 15, 2016, so that the plans can be reviewed in conjunction with the bill that would authorize the imposition of the State Bars membership fee. The report shall be submitted in compliance with Section 9795 of the Government Code. The State Bar shall complete and implement its workforce plan by December 31, 2016.
SEC. 15.Section 6145 of the Business and Professions Code is amended to read:6145.(a)The board shall engage the services of an independent national or regional public accounting firm with at least five years of experience in governmental auditing for an audit of its financial statement for each fiscal year. The financial statement shall be promptly certified under oath by the Treasurer of the State Bar, and a copy of the audit and financial statement shall be submitted within 120 days of the close of the fiscal year to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
The audit shall examine the receipts and expenditures of the State Bar and the State Bar sections to ensure that the receipts of the sections are being applied, and their expenditures are being made, in compliance with subdivision (a) of Section 6031.5, and that the receipts of the sections are applied only to the work of the sections.
The audit also shall examine the receipts and expenditures of the State Bar to ensure that the funds collected on behalf of the Conference of Delegates of California Bar Associations as the independent successor entity to the former Conference of Delegates of the State Bar are conveyed to that entity, that the State Bar has been paid or reimbursed for the full cost of any administrative and support services provided to the successor entity, including the collection of fees or donations on its behalf, and that no mandatory dues are being used to fund the activities of the successor entity.
In selecting the accounting firm, the board shall consider the value of continuity, along with the risk that continued long-term engagements of an accounting firm may affect the independence of that firm.
(b)The board shall contract with the California State Auditors Office to conduct a performance audit of the State Bars operations from July 1, 2000, to December 31, 2000, inclusive. A copy of the performance audit shall be submitted by May 1, 2001, to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
Every two years thereafter, the board shall contract with the California State Auditors Office to conduct a performance audit of the State Bars operations for the respective fiscal year, commencing with January 1, 2002, to December 31, 2002, inclusive. A copy of the performance audit shall be submitted within 120 days of the close of the fiscal year for which the audit was performed to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
For the purposes of this subdivision, the California State Auditors Office may contract with a third party to conduct the performance audit. This subdivision is not intended to reduce the number of audits the California State Auditors Office may otherwise be able to conduct.
(c)Effective January 1, 2016, the board shall contract with the California State Auditors Office to conduct an in-depth financial audit of the State Bar, including an audit of its financial statement, internal controls, and relevant management practices. The contract shall include reimbursement for the California State Auditors Office for the costs of conducting the audit. The audit shall, at a minimum, examine the revenues, expenditures, and reserves of the State Bar, including all fund transfers. The California State Auditors Office shall commence the audit no later than January 1, 2016, and a copy of the audit shall be submitted by May 15, 2016, to the board, the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary. The audit shall be submitted in compliance with Section 9795 of the Government Code. This subdivision shall cease to be operative January 1, 2017.
SEC. 16.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 and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), 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. 17.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 attorneys representation involved civil law, or criminal law, if the attorneys 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 shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), and may not be disclosed in any subsequent arbitration or other proceedings.
SEC. 18.Section 6232 of the Business and Professions Code is amended to read:6232.(a)The committee shall establish practices and procedures for the acceptance, denial, completion, or termination of attorneys in the Attorney Diversion and Assistance Program, and may recommend rehabilitative criteria for adoption by the board for acceptance, denial, completion of, or termination from, the program.
(b)An attorney currently under investigation by the State Bar may enter the program in the following ways:
(1)By referral of the Office of the Chief Trial Counsel.
(2)By referral of the State Bar Court following the initiation of a disciplinary proceeding.
(3)Voluntarily, and in accordance with terms and conditions agreed upon by the attorney participant with the Office of the Chief Trial Counsel or upon approval by the State Bar Court, as long as the investigation is based primarily on the self-administration of drugs or alcohol or the illegal possession, prescription, or nonviolent procurement of drugs for self-administration, or on mental illness, and does not involve actual harm to the public or his or her clients. An attorney seeking entry under this paragraph may be required to execute an agreement that violations of this chapter, or other statutes that would otherwise be the basis for discipline, may nevertheless be prosecuted if the attorney is terminated from the program for failure to comply with program requirements.
(c)Neither acceptance into nor participation in the Attorney Diversion and Assistance Program shall relieve the attorney of any lawful duties and obligations otherwise required by any agreements or stipulations with the Office of the Chief Trial Counsel, court orders, or applicable statutes relating to attorney discipline.
(d)An attorney who is not the subject of a current investigation may voluntarily enter, whether by self-referral or referral by a third party, the diversion and assistance program on a confidential basis and such information shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). Confidentiality pursuant to this subdivision shall be absolute unless waived by the attorney.
SEC. 19.Section 6234 of the Business and Professions Code is amended to read:6234.Any information provided to or obtained by the Attorney Diversion and Assistance Program, or any subcommittee or agent thereof, shall be as follows:
(a)Confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This confidentiality shall be absolute unless waived by the attorney.
(b)Exempt from the provisions of Section 6086.1.
(c)Not discoverable or admissible in any civil proceeding without the written consent of the attorney to whom the information pertains.
(d)Not discoverable or admissible in any disciplinary proceeding without the written consent of the attorney to whom the information pertains.
(e)Except with respect to the provisions of subdivision (d) of Section 6232, the limitations on the disclosure and admissibility of information in this section shall not apply to information relating to an attorneys noncooperation with, or unsuccessful completion of, the Attorney Diversion and Assistance Program, or any subcommittee or agent thereof, or to information otherwise obtained by the Office of the Chief Trial Counsel, by independent means, or from any other lawful source.
SEC. 20.Section 6252 of the Government Code is amended to read:6252.As used in this chapter:
(a)Local agency includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.
(b)Member of the public means any person, except a member, agent, officer, or employee of a federal, state, or local agency acting within the scope of his or her membership, agency, office, or employment.
(c)Person includes any natural person, corporation, partnership, limited liability company, firm, or association.
(d)Public agency means any state or local agency.
(e)Public records includes any writing containing information relating to the conduct of the publics business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. Public records in the custody of, or maintained by, the Governors office means any writing prepared on or after January 6, 1975.
(f)(1)State agency means every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constitution.
(2)Notwithstanding paragraph (1) or any other law, state agency shall also mean the State Bar of California, as described in Section 6001 of the Business and Professions Code.
(g)Writing means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.
SEC. 21.Section 6276.04 of the Government Code is amended to read:6276.04.Aeronautics Act, reports of investigations and hearings, Section 21693, Public Utilities Code.
Agricultural producers marketing, access to records, Section 59616, Food and Agricultural Code.
Aiding disabled voters, Section 14282, Elections Code.
Air pollution data, confidentiality of trade secrets, Section 6254.7, and Sections 42303.2 and 43206, Health and Safety Code.
Air toxics emissions inventory plans, protection of trade secrets, Section 44346, Health and Safety Code.
Alcohol and drug abuse records and records of communicable diseases, confidentiality of, Section 123125, Health and Safety Code.
Alcoholic beverage licensees, confidentiality of corporate proprietary information, Section 25205, Business and Professions Code.
Ambulatory Surgery Data Record, confidentiality of identifying information, Section 128737, Health and Safety Code.
Apiary registration information, confidentiality of, Section 29041, Food and Agricultural Code.
Archaeological site information and reports maintained by state and local agencies, disclosure not required, Section 6254.10.
Arrest not resulting in conviction, disclosure or use of records, Sections 432.7 and 432.8, Labor Code.
Arsonists, registered, confidentiality of certain information, Section 457.1, Penal Code.
Artificial insemination, donor not natural father, confidentiality of records, Section 7613, Family Code.
Assessors records, confidentiality of information in, Section 408, Revenue and Taxation Code.
Assessors records, confidentiality of information in, Section 451, Revenue and Taxation Code.
Assessors records, display of documents relating to business affairs or property of another, Section 408.2, Revenue and Taxation Code.
Assigned risk plans, rejected applicants, confidentiality of information, Section 11624, Insurance Code.
Attorney applicant, investigation by State Bar, confidentiality of, Section 6060.2, Business and Professions Code.
Attorney applicant, information submitted by applicant and State Bar admission records, confidentiality of, Section 6060.25, Business and Professions Code.
Attorney-client confidential communication, Section 6068, Business and Professions Code, and Sections 952 and 954, Evidence Code.
Attorney, disciplinary proceedings, confidentiality prior to formal proceedings, Section 6086.1, Business and Professions Code.
Attorney, disciplinary proceeding, State Bar access to nonpublic court records, Section 6090.6, Business and Professions Code.
Attorney, law corporation, investigation by State Bar, confidentiality of, Section 6168, Business and Professions Code.
Attorney work product confidentiality in administrative adjudication, Section 11507.6.
Attorney, work product, confidentiality of, Section 6202, Business and Professions Code.
Attorney work product, discovery, Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of the Code of Civil Procedure.
Auditor General, access to records for audit purposes, Sections 10527 and 10527.1.
Auditor General, disclosure of audit records, Section 10525.
Automated forward facing parking control devices, confidentiality of video imaging records from the devices, Section 40240, Vehicle Code.
Automated traffic enforcement system, confidentiality of photographic records made by the system, Section 21455.5, Vehicle Code.
Automobile Insurance Claims Depository, confidentiality of information, Section 1876.3, Insurance Code.
Automobile insurance, investigation of fraudulent claims, confidential information, Section 1872.8, Insurance Code.
Avocado handler transaction records, confidentiality of information, Section 44984, Food and Agricultural Code.
SEC. 22.Section 11121 of the Government Code is amended to read:11121.As used in this article, state body means each of the following:
(a)Every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order.
(b)A board, commission, committee, or similar multimember body that exercises any authority of a state body delegated to it by that state body.
(c)An advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body of a state body, if created by formal action of the state body or of any member of the state body, and if the advisory body so created consists of three or more persons.
(d)A board, commission, committee, or similar multimember body on which a member of a body that is a state body pursuant to this section serves in his or her official capacity as a representative of that state body and that is supported, in whole or in part, by funds provided by the state body, whether the multimember body is organized and operated by the state body or by a private corporation.
(e)Notwithstanding subdivision (a) of Section 11121.1, the State Bar of California, as described in Section 6001 of the Business and Professions Code. This subdivision shall become operative on April 1, 2016.
SEC. 22.5.Section 11121 of the Government Code is amended to read:11121.As used in this article, state body means each of the following:
(a)Every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order.
(b)A board, commission, committee, or similar multimember body that exercises any authority of a state body delegated to it by that state body.
(c)An advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body of a state body, if created by formal action of the state body or of any member of the state body, and if the advisory body so created consists of three or more persons, except as in subdivision (d).
(d)A board, commission, committee, or similar multimember body on which a member of a body that is a state body pursuant to this section serves in his or her official capacity as a representative of that state body and that is supported, in whole or in part, by funds provided by the state body, whether the multimember body is organized and operated by the state body or by a private corporation.
(e)Notwithstanding subdivision (a) of Section 11121.1, the State Bar of California, as described in Section 6001 of the Business and Professions Code. This subdivision shall become operative on April 1, 2016.
SEC. 23.Section 11121.1 of the Government Code is amended to read:11121.1.As used in this article, state body does not include any of the following:
(a)Except as provided in subdivision (e) of Section 11121, state agencies provided for in Article VI of the California Constitution.
(b)Districts or other local agencies whose meetings are required to be open to the public pursuant to the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5).
(c)State agencies provided for in Article IV of the California Constitution whose meetings are required to be open to the public pursuant to the Grunsky-Burton Open Meeting Act (Article 2.2 (commencing with Section 9027) of Chapter 1.5 of Part 1 of Division 2 of Title 2).
(d)State agencies when they are conducting proceedings pursuant to Section 3596.
(e)State agencies provided for in Section 109260 of the Health and Safety Code, except as provided in Section 109390 of the Health and Safety Code.
(f)The Credit Union Advisory Committee established pursuant to Section 14380 of the Financial Code.
SEC. 24.Section 22.5 of this bill incorporates amendments to Section 11121 of the Government Code proposed by this bill and Assembly Bill 85. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 11121 of the Government Code, and (3) this bill is enacted after Assembly Bill 85, in which case Section 11121 of the Government Code, as amended by Assembly Bill 85, shall remain operative only until the operative date of this bill, at which time Section 22.5 of this bill shall become operative, and Section 22 of this bill shall not become operative.
SEC. 25.The Legislature finds and declares that this act imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to allow the State Bar of California to fully accomplish its objectives, including, but not limited to, its licensing, regulatory, and disciplinary functions, it is imperative to protect the privacy interests of those persons submitting information to the State Bar, including any information submitted by an applicant to the State Bar for admission and a license to practice law, those applicants, members, and law corporations subject to investigation and discipline by the State Bar, and those persons participating in discussions and offers of settlement pursuant to arbitration or mediation in order to ensure that any personal or sensitive information is protected as confidential information.
SEC. 26.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
The State Bar of California is a public corporation. It is hereinafter designated as the State Bar.
The State Bar has perpetual succession and a seal and it may sue and be sued. It may, for the purpose of carrying into effect and promoting its objectives:
(a)Make contracts.
(b)Borrow money, contract debts, issue bonds, notes and debentures and secure the payment or performance of its obligations.
(c)Own, hold, use, manage and deal in and with real and personal property.
(d)Construct, alter, maintain and repair buildings and other improvements to real property.
(e)Purchase, lease, obtain options upon, acquire by gift, bequest, devise or otherwise, any real or personal property or any interest therein.
(f)Sell, lease, exchange, convey, transfer, assign, encumber, pledge, dispose of any of its real or personal property or any interest therein, including without limitation all or any portion of its income or revenues from membership fees paid or payable by members.
(g)Do all other acts incidental to the foregoing or necessary or expedient for the administration of its affairs and the attainment of its purposes.
Pursuant to those powers enumerated in subdivisions (a) to (g), inclusive, it is recognized that the State Bar has authority to raise revenue in addition to that provided for in Section 6140 and other statutory provisions. The State Bar is empowered to raise that additional revenue by any lawful means, including, but not limited to, the creation of foundations or not-for-profit corporations.
The State Bar shall conspicuously publicize to its members in the annual dues statement and other appropriate communications, including its Web site and electronic communications, that its members have the right to limit the sale or disclosure of member information not reasonably related to regulatory purposes. In those communications the State Bar shall note the location of the State Bars privacy policy, and shall also note the simple procedure by which a member may exercise his or her right to prohibit or restrict, at the members option, the sale or disclosure of member information not reasonably related to regulatory purposes. On or before May 1, 2005, the State Bar shall report to the Assembly and Senate Committees on Judiciary regarding the procedures that it has in place to ensure that members can appropriately limit the use of their member information not reasonably related to regulatory purposes, and the number of members choosing to utilize these procedures.
No law of this state restricting, or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies, or classes thereof, including, but not by way of limitation, the provisions contained in Division 3 (commencing with Section 11000), Division 4 (commencing with Section 16100), and Part 1 (commencing with Section 18000) and Part 2 (commencing with Section 18500) of Division 5, of Title 2 of the Government Code, shall be applicable to the State Bar, unless the Legislature expressly so declares. Notwithstanding the foregoing or any other law, pursuant to Sections 6026.7 and 6026.11, the State Bar is subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and, commencing April 1, 2016, the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
SEC. 2.Section 6026.5 of the Business and Professions Code is amended to read:6026.5.Pursuant to Section 6026.7, every meeting of the board shall be open to the public except those meetings, or portions thereof, relating to:
(a)Consultation with counsel concerning pending or prospective litigation.
(b)Involuntary enrollment of active members as inactive members due to mental infirmity or illness or addiction to intoxicants or drugs.
(c)The qualifications of judicial appointees, nominees, or candidates.
(d)The appointment, employment or dismissal of an employee, consultant, or officer of the State Bar or to hear complaints or charges brought against such employee, consultant, or officer unless such person requests a public hearing.
(e)Disciplinary investigations and proceedings, including resignations with disciplinary investigations or proceedings pending, and reinstatement proceedings.
(f)Appeals to the board from decisions of the Board of Legal Specialization refusing to certify or recertify an applicant or suspending or revoking a specialists certificate.
(g)Appointments to or removals from committees, boards, or other entities.
(h)Joint meetings with agencies provided in Article VI of the California Constitution.
SEC. 3.Section 6026.7 of the Business and Professions Code is repealed.SEC. 2.Section 6026.5 of the Business and Professions Code is amended to read:6026.5.(a)Every meeting of the board shall be open to the public except those meetings, or portions thereof, relating to:
(a)
(1)Consultation with counsel concerning pending or prospective litigation.
(b)
(2)Involuntary enrollment of active members as inactive members due to mental infirmity or illness or addiction to intoxicants or drugs.
(c)
(3)The qualifications of judicial appointees, nominees, or candidates.
(d)
(4)The appointment, employment or dismissal of an employee, consultant, or officer of the State Bar or to hear complaints or charges brought against such employee, consultant, or officer unless such person requests a public hearing.
(e)
(5)Disciplinary investigations and proceedings, including resignations with disciplinary investigations or proceedings pending, and reinstatement proceedings.
(f)
(6)Appeals to the board from decisions of the Board of Legal Specialization refusing to certify or recertify an applicant or suspending or revoking a specialists certificate.
(g)
(7)Appointments to or removals from committees, boards, or other entities.
(h)
(8)Joint meetings with agencies provided in Article VI of the California Constitution.
(b)
This section shall remain in effect only until April 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before April 1, 2016, deletes or extends that date.
SEC. 3.Section 6026.5 is added to the Business and Professions Code, to read:6026.5.(a)Pursuant to Section 6026.7, every meeting of the board shall be open to the public except those meetings, or portions thereof, relating to:
(1)Consultation with counsel concerning pending or prospective litigation.
(2)Involuntary enrollment of active members as inactive members due to mental infirmity or illness or addiction to intoxicants or drugs.
(3)The qualifications of judicial appointees, nominees, or candidates.
(4)The appointment, employment, or dismissal of an employee, consultant, or officer of the State Bar or to hear complaints or charges brought against such employee, consultant, or officer, unless such person requests a public hearing.
(5)Disciplinary investigations and proceedings, including resignations with disciplinary investigations or proceedings pending, and reinstatement proceedings.
(6)Appeals to the board from decisions of the Board of Legal Specialization refusing to certify or recertify an applicant or suspending or revoking a specialists certificate.
(7)Appointments to or removals from committees, boards, or other entities.
(8)Joint meetings with agencies provided in Article VI of the California Constitution.
(b)This section shall become operative on April 1, 2016.
SEC. 4.Section 6026.7 of the Business and Professions Code is amended to read:6026.7.(a)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).
(b)
This section shall remain in effect only until April 1, 2016, and as of that date is repealed, unless a later enacted statute, that is enacted before April 1, 2016, deletes or extends that date.
SEC. 4.SEC. 5.Section 6026.7 is added to the Business and Professions Code, to read:6026.7.(a)The State Bar is subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) and all meetings of the State Bar are subject to the Bagley-Keene Open Meeting Act.
(b)Notwithstanding any other law, the Bagley-Keene Open Meeting Act shall not apply to the Judicial Nominees Evaluation Commission or the Committee of Bar Examiners.
(c)This section shall become operative on April 1, 2016.
SEC. 5.SEC. 6.Section 6026.11 is added to the Business and Professions Code, to read:6026.11.The State Bar is subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and all public records and writings of the State Bar are subject to the California Public Records Act.
SEC. 6.SEC. 7.Section 6060.2 of the Business and Professions Code is amended to read:6060.2.All investigations or proceedings conducted by the State Bar concerning the moral character of an applicant shall be confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) unless the applicant, in writing, waives the confidentiality. However, the records of the proceeding may be subject to lawfully issued subpoenas.
SEC. 8.Section 6060.25 is added to the Business and Professions Code, immediately following Section 6060.2, to read:6060.25.Notwithstanding any other law, any identifying information submitted by an applicant to the State Bar for admission and a license to practice law and all State Bar admission records, including, but not limited to, bar examination scores, law school grade point average (GPA), undergraduate GPA, Law School Admission Test scores, race or ethnicity, and any information contained within the State Bar Admissions database or any file or other data created by the State Bar with information submitted by the applicant that may identify an individual applicant, shall be confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code).
SEC. 7.SEC. 9.Section 6086.1 of the Business and Professions Code is amended to read:6086.1.(a)(1)Subject to subdivision (b), and except as otherwise provided by law, hearings and records of original disciplinary proceedings in the State Bar Court shall be public, following a notice to show cause.
(2)Subject to subdivision (b), and except as otherwise provided by law, hearings and records of the following matters shall be public:
(A)Filings for involuntary inactive enrollment or restriction under subdivision (a), (c), (d), or (e) of Section 6007.
(B)Petitions for reinstatement under Section 6078.
(C)Proceedings for suspension or disbarment under Section 6101 or 6102.
(D)Payment information from the Client Security Fund pursuant to Section 6140.5.
(E)Actions to cease a law practice or assume a law practice under Section 6180 or 6190.
(b)All disciplinary investigations are confidential until the time that formal charges are filed and all investigations of matters identified in paragraph (2) of subdivision (a) are confidential until the formal proceeding identified in paragraph (2) of subdivision (a) is instituted. These investigations shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This confidentiality requirement may be waived under any of the following exceptions:
(1)The member whose conduct is being investigated may waive confidentiality.
(2)The Chief Trial Counsel or President of the State Bar may waive confidentiality, but only when warranted for protection of the public. Under those circumstances, after private notice to the member, the Chief Trial Counsel or President of the State Bar may issue, if appropriate, one or more public announcements or make information public confirming the fact of an investigation or proceeding, clarifying the procedural aspects and current status, and defending the right of the member to a fair hearing. If the Chief Trial Counsel or President of the State Bar for any reason declines to exercise the authority provided by this paragraph, or disqualifies himself or herself from acting under this paragraph, he or she shall designate someone to act in his or her behalf. Conduct of a member that is being inquired into by the State Bar but that is not the subject of a formal investigation shall not be disclosed to the public.
(3)The Chief Trial Counsel or his or her designee may waive confidentiality pursuant to Section 6044.5.
(c)Notwithstanding the confidentiality of investigations, the State Bar shall disclose to any member of the public so inquiring, any information reasonably available to it pursuant to subdivision (o) of Section 6068, and to Sections 6086.7, 6086.8, and 6101, concerning a member of the State Bar which is otherwise a matter of public record, including civil or criminal filings and dispositions.
SEC. 8.SEC. 10.Section 6086.15 of the Business and Professions Code is amended to read:6086.15.(a)The State Bar shall issue an Annual Discipline Report by April 30 of each year describing the performance and condition of the State Bar discipline system, including all matters that affect public protection. The report shall cover the previous calendar year and shall include accurate and complete descriptions of all of the following:
(1)The existing backlog of cases within the discipline system, including the number of complaints as of December 31 of the preceding year that were pending beyond six months after receipt without dismissal, admonition, or the filing of a notice of disciplinary charges. In addition to written complaints received by the State Bar, the backlog of cases shall include other matters opened in the Office of the Chief Trial Counsel and pending beyond six months after receipt without the filing of notices of disciplinary charges, or the initiation of other disciplinary proceedings in the State Bar Court for the purpose of seeking the imposition of discipline against a member of the State Bar, and tables showing time periods beyond six months and the number in each category and a discussion of the reason for the extended periods.
(2)The number of inquiries and complaints and their disposition.
(3)The number, average pending times, and types of matters self-reported by members of the State Bar pursuant to subdivision (o) of Section 6068 and subdivision (c) of Section 6086.8.
(4)The number, average pending times, and types of matters reported by other sources pursuant to Sections 6086.7, 6086.8, 6091.1, subdivision (b) of Section 6101, and Section 6175.6.
(5)The speed of complaint handling and dispositions by type, measured by the median and the average processing times.
(6)The number, average pending times, and types of filed notices of disciplinary charges and formal disciplinary outcomes.
(7)The number, average pending times, and types of other matters, including petitions to terminate practice pursuant to Section 6180 or 6190, interim suspensions and license restrictions pursuant to Section 6007, motions to enforce a binding arbitration award, judgment, or agreement pursuant to subdivision (d) of Section 6203, motions to revoke probation, letters of warning, private reprovals, admonitions, and agreements in lieu of discipline.
(8)The number, average pending times, and outcomes of complaints involving a State Bar member who has been disbarred or who has resigned, and is engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities, or petitions to terminate practice pursuant to Section 6180.
(9)The number, average pending times, and outcomes of complaints against nonattorneys engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities; petitions to terminate practice pursuant to Section 6126.3; or referrals to prosecuting authorities or actions by the State Bar pursuant to Section 6126.7.
(10)A description of the condition of the Client Security Fund, including an accounting of payouts.
(11)An accounting of the cost of the discipline system by function.
(b)The Annual Discipline Report shall include statistical information presented in a consistent manner for year-to-year comparison and shall compare the information required under subdivision (a) to similar information for the previous three years.
(c)The Annual Discipline Report shall be presented to the Chief Justice of California, to the Governor, to the Speaker of the Assembly, to the President pro Tempore of the Senate, and to the Assembly and Senate Judiciary Committees, for their consideration and shall be considered a public document.
SEC. 9.SEC. 11.Section 6090.6 of the Business and Professions Code is amended to read:6090.6.In a disciplinary proceeding, the State Bar shall have access, on an ex parte basis, to all nonpublic court records relevant to the competence or performance of its members, provided that these records shall remain confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This access, for investigation and enforcement purposes, shall not be limited by any court order sealing those records, except a court order authorized by Section 851.6, 851.7, 851.8, or 851.85 of the Penal Code. The State Bar may disclose publicly the nature and content of those records, including sealed records other than those specified immediately above in this section, after notice of intention to disclose all or a part of the records has been given to the parties in the underlying action. A party to the underlying action who would be adversely affected by the disclosure may serve notice on the State Bar within 10 days of receipt of the notice of intention to disclose the records that it opposes the disclosure and will seek a hearing in the court of competent jurisdiction on an expedited basis.
SEC. 10.SEC. 12.Section 6140 of the Business and Professions Code, as amended by Section 3 of Chapter 429 of the Statutes of 2014, is amended to read:6140.(a)The board shall fix the annual membership fee for active members for 2016 at a sum not exceeding three hundred fifteen dollars ($315).
(b)The annual membership fee for active members is payable on or before the first day of February of each year. If the board finds it appropriate and feasible, it may provide by rule for payment of fees on an installment basis with interest, by credit card, or other means, and may charge members choosing any alternative method of payment an additional fee to defray costs incurred by that election.
(c)This section shall remain in effect only until January 1, 2017, and, as of that date, is repealed, unless a later enacted statute, that is enacted before January 1, 2017, deletes or extends that date.
SEC. 11.SEC. 13.Section 6140.16 of the Business and Professions Code is repealed.SEC. 12.SEC. 14.Section 6140.16 is added to the Business and Professions Code, to read:6140.16.(a)To align its staffing with its mission to protect the public as provided in Section 6001.1 and to provide guidance to the State Bar and the Legislature in allocating resources, the State Bar shall develop and implement a workforce plan for its discipline system and conduct a public sector compensation and benefits study. The workforce plan and compensation study shall be used to reassess the numbers and classifications of staff required to conduct the activities of the State Bars disciplinary activities.
(b)The workforce planning shall include the development and recommendation of an appropriate backlog goal, an assessment of the staffing needed to achieve that goal while ensuring that the discipline process is not compromised, and the creation of policies and procedures sufficient to provide adequate guidance to the staff of each unit within the discipline system.
(c)In addition to the requirements in subdivisions (a) and (b), the State Bar shall conduct a thorough analysis of its priorities and necessary operating costs and develop a spending plan, which includes its fund balances, to determine a reasonable amount for the annual membership fee that reflects its actual or known costs and those to implement its workforce plan.
(d)The State Bar shall submit a report on its workforce plan and spending plan to the Legislature by May 15, 2016, so that the plans can be reviewed in conjunction with the bill that would authorize the imposition of the State Bars membership fee. The report shall be submitted in compliance with Section 9795 of the Government Code. The State Bar shall complete and implement its workforce plan by December 31, 2016.
SEC. 13.SEC. 15.Section 6145 of the Business and Professions Code is amended to read:6145.(a)The board shall engage the services of an independent national or regional public accounting firm with at least five years of experience in governmental auditing for an audit of its financial statement for each fiscal year. The financial statement shall be promptly certified under oath by the Treasurer of the State Bar, and a copy of the audit and financial statement shall be submitted within 120 days of the close of the fiscal year to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
The audit shall examine the receipts and expenditures of the State Bar and the State Bar sections to ensure that the receipts of the sections are being applied, and their expenditures are being made, in compliance with subdivision (a) of Section 6031.5, and that the receipts of the sections are applied only to the work of the sections.
The audit also shall examine the receipts and expenditures of the State Bar to ensure that the funds collected on behalf of the Conference of Delegates of California Bar Associations as the independent successor entity to the former Conference of Delegates of the State Bar are conveyed to that entity, that the State Bar has been paid or reimbursed for the full cost of any administrative and support services provided to the successor entity, including the collection of fees or donations on its behalf, and that no mandatory dues are being used to fund the activities of the successor entity.
In selecting the accounting firm, the board shall consider the value of continuity, along with the risk that continued long-term engagements of an accounting firm may affect the independence of that firm.
(b)The board shall contract with the California State Auditors Office to conduct a performance audit of the State Bars operations from July 1, 2000, to December 31, 2000, inclusive. A copy of the performance audit shall be submitted by May 1, 2001, to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
Every two years thereafter, the board shall contract with the California State Auditors Office to conduct a performance audit of the State Bars operations for the respective fiscal year, commencing with January 1, 2002, to December 31, 2002, inclusive. A copy of the performance audit shall be submitted within 120 days of the close of the fiscal year for which the audit was performed to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
For the purposes of this subdivision, the California State Auditors Office may contract with a third party to conduct the performance audit. This subdivision is not intended to reduce the number of audits the California State Auditors Office may otherwise be able to conduct.
(c)Effective January 1, 2016, the board shall contract with the California State Auditors Office to conduct an in-depth financial audit of the State Bar, including an audit of its financial statement, internal controls, and relevant management practices. The contract shall include reimbursement for the California State Auditors Office for the costs of conducting the audit. The audit shall, at a minimum, examine the revenues, expenditures, and reserves of the State Bar, including all fund transfers. The California State Auditors Office shall commence the audit no later than January 1, 2016, and a copy of the audit shall be submitted by May 15, 2016, to the board, the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary. The audit shall be submitted in compliance with Section 9795 of the Government Code. This subdivision shall cease to be operative January 1, 2017.
SEC. 14.SEC. 16.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 and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), 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. 15.SEC. 17.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 attorneys representation involved civil law, or criminal law, if the attorneys 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 shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), and may not be disclosed in any subsequent arbitration or other proceedings.
SEC. 16.SEC. 18.Section 6232 of the Business and Professions Code is amended to read:6232.(a)The committee shall establish practices and procedures for the acceptance, denial, completion, or termination of attorneys in the Attorney Diversion and Assistance Program, and may recommend rehabilitative criteria for adoption by the board for acceptance, denial, completion of, or termination from, the program.
(b)An attorney currently under investigation by the State Bar may enter the program in the following ways:
(1)By referral of the Office of the Chief Trial Counsel.
(2)By referral of the State Bar Court following the initiation of a disciplinary proceeding.
(3)Voluntarily, and in accordance with terms and conditions agreed upon by the attorney participant with the Office of the Chief Trial Counsel or upon approval by the State Bar Court, as long as the investigation is based primarily on the self-administration of drugs or alcohol or the illegal possession, prescription, or nonviolent procurement of drugs for self-administration, or on mental illness, and does not involve actual harm to the public or his or her clients. An attorney seeking entry under this paragraph may be required to execute an agreement that violations of this chapter, or other statutes that would otherwise be the basis for discipline, may nevertheless be prosecuted if the attorney is terminated from the program for failure to comply with program requirements.
(c)Neither acceptance into nor participation in the Attorney Diversion and Assistance Program shall relieve the attorney of any lawful duties and obligations otherwise required by any agreements or stipulations with the Office of the Chief Trial Counsel, court orders, or applicable statutes relating to attorney discipline.
(d)An attorney who is not the subject of a current investigation may voluntarily enter, whether by self-referral or referral by a third party, the diversion and assistance program on a confidential basis and such information shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). Confidentiality pursuant to this subdivision shall be absolute unless waived by the attorney.
SEC. 17.SEC. 19.Section 6234 of the Business and Professions Code is amended to read:6234.Any information provided to or obtained by the Attorney Diversion and Assistance Program, or any subcommittee or agent thereof, shall be as follows:
(a)Confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This confidentiality shall be absolute unless waived by the attorney.
(b)Exempt from the provisions of Section 6086.1.
(c)Not discoverable or admissible in any civil proceeding without the written consent of the attorney to whom the information pertains.
(d)Not discoverable or admissible in any disciplinary proceeding without the written consent of the attorney to whom the information pertains.
(e)Except with respect to the provisions of subdivision (d) of Section 6232, the limitations on the disclosure and admissibility of information in this section shall not apply to information relating to an attorneys noncooperation with, or unsuccessful completion of, the Attorney Diversion and Assistance Program, or any subcommittee or agent thereof, or to information otherwise obtained by the Office of the Chief Trial Counsel, by independent means, or from any other lawful source.
SEC. 18.SEC. 20.Section 6252 of the Government Code is amended to read:6252.As used in this chapter:
(a)Local agency includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.
(b)Member of the public means any person, except a member, agent, officer, or employee of a federal, state, or local agency acting within the scope of his or her membership, agency, office, or employment.
(c)Person includes any natural person, corporation, partnership, limited liability company, firm, or association.
(d)Public agency means any state or local agency.
(e)Public records includes any writing containing information relating to the conduct of the publics business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. Public records in the custody of, or maintained by, the Governors office means any writing prepared on or after January 6, 1975.
(f)(1)State agency means every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constitution.
(2)Notwithstanding paragraph (1) or any other law, state agency shall also mean the State Bar of California, as described in Section 6001 of the Business and Professions Code.
(g)Writing means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.
SEC. 21.Section 6276.04 of the Government Code is amended to read:6276.04.Aeronautics Act, reports of investigations and hearings, Section 21693, Public Utilities Code.
Agricultural producers marketing, access to records, Section 59616, Food and Agricultural Code.
Aiding disabled voters, Section 14282, Elections Code.
Air pollution data, confidentiality of trade secrets, Section 6254.7, and Sections 42303.2 and 43206, Health and Safety Code.
Air toxics emissions inventory plans, protection of trade secrets, Section 44346, Health and Safety Code.
Alcohol and drug abuse records and records of communicable diseases, confidentiality of, Section 123125, Health and Safety Code.
Alcoholic beverage licensees, confidentiality of corporate proprietary information, Section 25205, Business and Professions Code.
Ambulatory Surgery Data Record, confidentiality of identifying information, Section 128737, Health and Safety Code.
Apiary registration information, confidentiality of, Section 29041, Food and Agricultural Code.
Archaeological site information and reports maintained by state and local agencies, disclosure not required, Section 6254.10.
Arrest not resulting in conviction, disclosure or use of records, Sections 432.7 and 432.8, Labor Code.
Arsonists, registered, confidentiality of certain information, Section 457.1, Penal Code.
Artificial insemination, donor not natural father, confidentiality of records, Section 7613, Family Code.
Assessors records, confidentiality of information in, Section 408, Revenue and Taxation Code.
Assessors records, confidentiality of information in, Section 451, Revenue and Taxation Code.
Assessors records, display of documents relating to business affairs or property of another, Section 408.2, Revenue and Taxation Code.
Assigned risk plans, rejected applicants, confidentiality of information, Section 11624, Insurance Code.
Attorney applicant, investigation by State Bar, confidentiality of, Section 6060.2, Business and Professions Code.
Attorney applicant, information submitted by applicant and State Bar admission records, confidentiality of, Section 6060.25, Business and Professions Code.
Attorney-client confidential communication, Section 6068, Business and Professions Code, and Sections 952 and 954, Evidence Code.
Attorney, disciplinary proceedings, confidentiality prior to formal proceedings, Section 6086.1, Business and Professions Code.
Attorney, disciplinary proceeding, State Bar access to nonpublic court records, Section 6090.6, Business and Professions Code.
Attorney, law corporation, investigation by State Bar, confidentiality of, Section 6168, Business and Professions Code.
Attorney work product confidentiality in administrative adjudication, Section 11507.6.
Attorney, work product, confidentiality of, Section 6202, Business and Professions Code.
Attorney work product, discovery, Chapter 4 (commencing with Section 2018.010) of Title 4 of Part 4 of the Code of Civil Procedure.
Auditor General, access to records for audit purposes, Sections 10527 and 10527.1.
Auditor General, disclosure of audit records, Section 10525.
Automated forward facing parking control devices, confidentiality of video imaging records from the devices, Section 40240, Vehicle Code.
Automated traffic enforcement system, confidentiality of photographic records made by the system, Section 21455.5, Vehicle Code.
Automobile Insurance Claims Depository, confidentiality of information, Section 1876.3, Insurance Code.
Automobile insurance, investigation of fraudulent claims, confidential information, Section 1872.8, Insurance Code.
Avocado handler transaction records, confidentiality of information, Section 44984, Food and Agricultural Code.
SEC. 19.SEC. 22.Section 11121 of the Government Code is amended to read:11121.As used in this article, state body means each of the following:
(a)Every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order.
(b)A board, commission, committee, or similar multimember body that exercises any authority of a state body delegated to it by that state body.
(c)An advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body of a state body, if created by formal action of the state body or of any member of the state body, and if the advisory body so created consists of three or more persons.
(d)A board, commission, committee, or similar multimember body on which a member of a body that is a state body pursuant to this section serves in his or her official capacity as a representative of that state body and that is supported, in whole or in part, by funds provided by the state body, whether the multimember body is organized and operated by the state body or by a private corporation.
(e)Notwithstanding subdivision (a) of Section 11121.1, the State Bar of California, as described in Section 6001 of the Business and Professions Code. This subdivision shall become operative on April 1, 2016.
SEC. 22.5.Section 11121 of the Government Code is amended to read:11121.As used in this article, state body means each of the following:
(a)Every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order.
(b)A board, commission, committee, or similar multimember body that exercises any authority of a state body delegated to it by that state body.
(c)An advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body of a state body, if created by formal action of the state body or of any member of the state body, and if the advisory body so created consists of three or more persons. persons, except as in subdivision (d).
(d)A board, commission, committee, or similar multimember body on which a member of a body that is a state body pursuant to this section serves in his or her official capacity as a representative of that state body and that is supported, in whole or in part, by funds provided by the state body, whether the multimember body is organized and operated by the state body or by a private corporation.
(e)Notwithstanding subdivision (a) of Section 11121.1, the State Bar of California, as described in Section 6001 of the Business and Professions Code. This subdivision shall become operative on April 1, 2016.
SEC. 20.SEC. 23.Section 11121.1 of the Government Code is amended to read:11121.1.As used in this article, state body does not include any of the following:
(a)Except as provided in subdivision (e) of Section 11121, state agencies provided for in Article VI of the California Constitution.
(b)Districts or other local agencies whose meetings are required to be open to the public pursuant to the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5).
(c)State agencies provided for in Article IV of the California Constitution whose meetings are required to be open to the public pursuant to the Grunsky-Burton Open Meeting Act (Article 2.2 (commencing with Section 9027) of Chapter 1.5 of Part 1 of Division 2 of Title 2).
(d)State agencies when they are conducting proceedings pursuant to Section 3596.
(e)State agencies provided for in Section 109260 of the Health and Safety Code, except as provided in Section 109390 of the Health and Safety Code.
(f)The Credit Union Advisory Committee established pursuant to Section 14380 of the Financial Code.
SEC. 24.Section 22.5 of this bill incorporates amendments to Section 11121 of the Government Code proposed by this bill and Assembly Bill 85. It shall only become operative if (1) both bills are enacted and become effective on or before January 1, 2016, (2) each bill amends Section 11121 of the Government Code, and (3) this bill is enacted after Assembly Bill 85, in which case Section 11121 of the Government Code, as amended by Assembly Bill 85, shall remain operative only until the operative date of this bill, at which time Section 22.5 of this bill shall become operative, and Section 22 of this bill shall not become operative.
SEC. 21.SEC. 25.The Legislature finds and declares that Sections 6, 7, 9, 14, 15, 16, and 17 of this act impose imposes a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to allow the State Bar of California to fully accomplish its objectives, including, but not limited to, its licensing, regulatory, and disciplinary functions, it is imperative to protect the privacy interests of those persons submitting information to the State Bar, Bar, including any information submitted by an applicant to the State Bar for admission and a license to practice law, those applicants, members, and law corporations subject to investigation and discipline by the State Bar, and those persons participating in discussions and offers of settlement pursuant to arbitration or mediation in order to ensure that any personal or sensitive information is protected as confidential information.
SEC. 22.SEC. 26.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
The State Bar of California is a public corporation. It is hereinafter designated as the State Bar.
The State Bar has perpetual succession and a seal and it may sue and be sued. It may, for the purpose of carrying into effect and promoting its objectives:
(a)Make contracts.
(b)Borrow money, contract debts, issue bonds, notes and debentures and secure the payment or performance of its obligations.
(c)Own, hold, use, manage and deal in and with real and personal property.
(d)Construct, alter, maintain and repair buildings and other improvements to real property.
(e)Purchase, lease, obtain options upon, acquire by gift, bequest, devise or otherwise, any real or personal property or any interest therein.
(f)Sell, lease, exchange, convey, transfer, assign, encumber, pledge, dispose of any of its real or personal property or any interest therein, including without limitation all or any portion of its income or revenues from membership fees paid or payable by members.
(g)Do all other acts incidental to the foregoing or necessary or expedient for the administration of its affairs and the attainment of its purposes.
Pursuant to those powers enumerated in subdivisions (a) to (g), inclusive, it is recognized that the State Bar has authority to raise revenue in addition to that provided for in Section 6140 and other statutory provisions. The State Bar is empowered to raise that additional revenue by any lawful means, including, but not limited to, the creation of foundations or not-for-profit corporations.
The State Bar shall conspicuously publicize to its members in the annual dues statement and other appropriate communications, including its Web site and electronic communications, that its members have the right to limit the sale or disclosure of member information not reasonably related to regulatory purposes. In those communications the State Bar shall note the location of the State Bars privacy policy, and shall also note the simple procedure by which a member may exercise his or her right to prohibit or restrict, at the members option, the sale or disclosure of member information not reasonably related to regulatory purposes. On or before May 1, 2005, the State Bar shall report to the Assembly and Senate Committees on Judiciary regarding the procedures that it has in place to ensure that members can appropriately limit the use of their member information not reasonably related to regulatory purposes, and the number of members choosing to utilize these procedures.
No law of this state restricting, or prescribing a mode of procedure for the exercise of powers of state public bodies or state agencies, or classes thereof, including, but not by way of limitation, the provisions contained in Division 3 (commencing with Section 11000), Division 4 (commencing with Section 16100), and Part 1 (commencing with Section 18000) and Part 2 (commencing with Section 18500) of Division 5, of Title 2 of the Government Code, shall be applicable to the State Bar, unless the Legislature expressly so declares. Notwithstanding the foregoing or any other law, pursuant to Sections 6026.7 and 6026.11, the State Bar is subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code).
SEC. 2.Section 6026.5 of the Business and Professions Code is amended to read:6026.5.Every Pursuant to Section 6026.7, every meeting of the board shall be open to the public except those meetings, or portions thereof, relating to:
(a)Consultation with counsel concerning pending or prospective litigation.
(b)Involuntary enrollment of active members as inactive members due to mental infirmity or illness or addiction to intoxicants or drugs.
(c)The qualifications of judicial appointees, nominees, or candidates.
(d)The appointment, employment or dismissal of an employee, consultant, or officer of the State Bar or to hear complaints or charges brought against such employee, consultant, or officer unless such person requests a public hearing.
(e)Disciplinary investigations and proceedings, including resignations with disciplinary investigations or proceedings pending, and reinstatement proceedings.
(f)Appeals to the board from decisions of the Board of Legal Specialization refusing to certify or recertify an applicant or suspending or revoking a specialists certificate.
(g)Appointments to or removals from committees, boards, or other entities.
(h)Joint meetings with agencies provided in Article VI of the California Constitution.
SEC. 3.Section 6026.7 of the Business and Professions Code is repealed.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. 4.Section 6026.7 is added to the Business and Professions Code, to read:6026.7.The State Bar is subject to the Bagley-Keene Open Meeting Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the Government Code) and all meetings of the State Bar are subject to the Bagley-Keene Open Meeting Act.
SEC. 5.Section 6026.11 is added to the Business and Professions Code, to read:6026.11.The State Bar is subject to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) and all public records and writings of the State Bar are subject to the California Public Records Act.
SEC. 6.Section 6060.2 of the Business and Professions Code is amended to read:6060.2.All investigations or proceedings conducted by the State Bar concerning the moral character of an applicant shall be confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code) unless the applicant, in writing, waives the confidentiality. However, the records of the proceeding may be subject to lawfully issued subpoenas.
SEC. 7.Section 6086.1 of the Business and Professions Code is amended to read:6086.1.(a)(1)Subject to subdivision (b), and except as otherwise provided by law, hearings and records of original disciplinary proceedings in the State Bar Court shall be public, following a notice to show cause.
(2)Subject to subdivision (b), and except as otherwise provided by law, hearings and records of the following matters shall be public:
(A)Filings for involuntary inactive enrollment or restriction under subdivision (a), (c), (d), or (e) of Section 6007.
(B)Petitions for reinstatement under Section 6078.
(C)Proceedings for suspension or disbarment under Section 6101 or 6102.
(D)Payment information from the Client Security Fund pursuant to Section 6140.5.
(E)Actions to cease a law practice or assume a law practice under Section 6180 or 6190.
(b)All disciplinary investigations are confidential until the time that formal charges are filed and all investigations of matters identified in paragraph (2) of subdivision (a) are confidential until the formal proceeding identified in paragraph (2) of subdivision (a) is instituted. These investigations shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This confidentiality requirement may be waived under any of the following exceptions:
(1)The member whose conduct is being investigated may waive confidentiality.
(2)The Chief Trial Counsel or President of the State Bar may waive confidentiality, but only when warranted for protection of the public. Under those circumstances, after private notice to the member, the Chief Trial Counsel or President of the State Bar may issue, if appropriate, one or more public announcements or make information public confirming the fact of an investigation or proceeding, clarifying the procedural aspects and current status, and defending the right of the member to a fair hearing. If the Chief Trial Counsel or President of the State Bar for any reason declines to exercise the authority provided by this paragraph, or disqualifies himself or herself from acting under this paragraph, he or she shall designate someone to act in his or her behalf. Conduct of a member that is being inquired into by the State Bar but that is not the subject of a formal investigation shall not be disclosed to the public.
(3)The Chief Trial Counsel or his or her designee may waive confidentiality pursuant to Section 6044.5.
(c)Notwithstanding the confidentiality of investigations, the State Bar shall disclose to any member of the public so inquiring, any information reasonably available to it pursuant to subdivision (o) of Section 6068, and to Sections 6086.7, 6086.8, and 6101, concerning a member of the State Bar which is otherwise a matter of public record, including civil or criminal filings and dispositions.
SECTION 1.SEC. 8.Section 6086.15 of the Business and Professions Code is amended to read:6086.15.(a)The State Bar shall issue an Annual Discipline Report by April 30 of each year describing the performance and condition of the State Bar discipline system, including all matters that affect public protection. The report shall cover the previous calendar year and shall include accurate and complete descriptions of all of the following:
(1)The existing backlog of cases within the discipline system, including the number of complaints as of December 31 of the preceding year that were pending beyond six months after receipt without dismissal, admonition, or the filing of a notice of disciplinary charges. In addition to written complaints received by the State Bar, the backlog of cases shall include other matters opened in the Office of the Chief Trial Counsel and pending beyond six months after receipt without the filing of notices of disciplinary charges, or the initiation of other disciplinary proceedings in the State Bar Court for the purpose of seeking the imposition of discipline against a member of the State Bar, and tables showing time periods beyond six months and the number in each category and a discussion of the reason for the extended periods.
(2)The number of inquiries and complaints and their disposition.
(3)The number, average pending times, and types of matters self-reported by members of the State Bar pursuant to subdivision (o) of Section 6068 and subdivision (c) of Section 6086.8.
(4)The number, average pending times, and types of matters reported by other sources pursuant to Sections 6086.7, 6086.8, 6091.1, subdivision (b) of Section 6101, and Section 6175.6.
(5)The speed of complaint handling and dispositions by type, measured by the median and the average processing times.
(6)The number, average pending times, and types of filed notices of disciplinary charges and formal disciplinary outcomes.
(7)The number, average pending times, and types of other matters, including petitions to terminate practice pursuant to Section 6180 or 6190, interim suspensions and license restrictions pursuant to Section 6007, motions to enforce a binding arbitration award, judgment, or agreement pursuant to subdivision (d) of Section 6203, motions to revoke probation, letters of warning, private reprovals, admonitions, and agreements in lieu of discipline.
(8)The number, average pending times, and outcomes of complaints involving a State Bar member who has been disbarred or who has resigned, and is engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities, or petitions to terminate practice pursuant to Section 6180.
(9)The number, average pending times, and outcomes of complaints against nonattorneys engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities; petitions to terminate practice pursuant to Section 6126.3; or referrals to prosecuting authorities or actions by the State Bar pursuant to Section 6126.7.
(10)A description of the condition of the Client Security Fund, including an accounting of payouts.
(11)An accounting of the cost of the discipline system by function.
(b)The Annual Discipline Report shall include statistical information presented in a consistent manner for year-to-year comparison and shall compare the information required under subdivision (a) to similar information for the previous three years.
(c)The Annual Discipline Report shall be presented to the Chief Justice of California, to the Governor, to the Speaker of the Assembly, to the President pro Tempore of the Senate, and to the Assembly and Senate Judiciary Committees, for their consideration and shall be considered a public document.
SEC. 9.Section 6090.6 of the Business and Professions Code is amended to read:6090.6.In a disciplinary proceeding, the State Bar shall have access, on an ex parte basis, to all nonpublic court records relevant to the competence or performance of its members , members, provided that these records shall remain confidential. confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This access, for investigation and enforcement purposes, shall not be limited by any court order sealing those records, except a court order authorized by Section 851.6, 851.7, 851.8, or 851.85 of the Penal Code. The State Bar may disclose publicly the nature and content of those records, including sealed records other than those specified immediately above in this section, after notice of intention to disclose all or a part of the records has been given to the parties in the underlying action. A party to the underlying action who would be adversely affected by the disclosure may serve notice on the State Bar within 10 days of receipt of the notice of intention to disclose the records that it opposes the disclosure and will seek a hearing in the court of competent jurisdiction on an expedited basis.
SEC. 2.SEC. 10.Section 6140 of the Business and Professions Code, as amended by Section 3 of Chapter 429 of the Statutes of 2014, is amended to read:6140.(a)The board shall fix the annual membership fee for active members for 2016 at a sum not exceeding three hundred fifteen dollars ($315).
(b)The annual membership fee for active members is payable on or before the first day of February of each year. If the board finds it appropriate and feasible, it may provide by rule for payment of fees on an installment basis with interest, by credit card, or other means, and may charge members choosing any alternative method of payment an additional fee to defray costs incurred by that election.
(c)This section shall remain in effect only until January 1, 2017, and, as of that date, is repealed, unless a later enacted statute, that is enacted before January 1, 2017, deletes or extends that date.
SEC. 3.SEC. 11.Section 6140.16 of the Business and Professions Code is repealed.SEC. 4.SEC. 12.Section 6140.16 is added to the Business and Professions Code, to read:6140.16.(a)To align its staffing with its mission to protect the public as provided in Section 6001.1 and to provide guidance to the State Bar and the Legislature in allocating resources, the State Bar shall develop and implement a workforce plan for its discipline system and conduct a public sector compensation and benefits study. The workforce plan and compensation study shall be used to reassess the numbers and classifications of staff required to conduct the activities of the State Bars disciplinary activities.
(b)The workforce planning shall include the development and recommendation of an appropriate backlog goal, an assessment of the staffing needed to achieve that goal while ensuring that the discipline process is not compromised, and the creation of policies and procedures sufficient to provide adequate guidance to the staff of each unit within the discipline system.
(c)In addition to the requirements in subdivisions (a) and (b), the State Bar shall conduct a thorough analysis of its priorities and necessary operating costs and develop a spending plan, which includes its fund balances, to determine a reasonable amount for the annual membership fee that reflects its actual or known costs and those to implement its workforce plan.
(d)The State Bar shall submit a report on its workforce plan and spending plan to the Legislature by May 15, 2016, so that the plans can be reviewed in conjunction with the bill that would authorize the imposition of the State Bars membership fee. The report shall be submitted in compliance with Section 9795 of the Government Code. The State Bar shall complete and implement its workforce plan by December 31, 2016.
SEC. 5.SEC. 13.Section 6145 of the Business and Professions Code is amended to read:6145.(a)The board shall engage the services of an independent national or regional public accounting firm with at least five years of experience in governmental auditing for an audit of its financial statement for each fiscal year. The financial statement shall be promptly certified under oath by the Treasurer of the State Bar, and a copy of the audit and financial statement shall be submitted within 120 days of the close of the fiscal year to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
The audit shall examine the receipts and expenditures of the State Bar and the State Bar sections to ensure that the receipts of the sections are being applied, and their expenditures are being made, in compliance with subdivision (a) of Section 6031.5, and that the receipts of the sections are applied only to the work of the sections.
The audit also shall examine the receipts and expenditures of the State Bar to ensure that the funds collected on behalf of the Conference of Delegates of California Bar Associations as the independent successor entity to the former Conference of Delegates of the State Bar are conveyed to that entity, that the State Bar has been paid or reimbursed for the full cost of any administrative and support services provided to the successor entity, including the collection of fees or donations on its behalf, and that no mandatory dues are being used to fund the activities of the successor entity.
In selecting the accounting firm, the board shall consider the value of continuity, along with the risk that continued long-term engagements of an accounting firm may affect the independence of that firm.
(b)The board shall contract with the California State Auditors Office to conduct a performance audit of the State Bars operations from July 1, 2000, to December 31, 2000, inclusive. A copy of the performance audit shall be submitted by May 1, 2001, to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
Every two years thereafter, the board shall contract with the California State Auditors Office to conduct a performance audit of the State Bars operations for the respective fiscal year, commencing with January 1, 2002, to December 31, 2002, inclusive. A copy of the performance audit shall be submitted within 120 days of the close of the fiscal year for which the audit was performed to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
For the purposes of this subdivision, the California State Auditors Office may contract with a third party to conduct the performance audit. This subdivision is not intended to reduce the number of audits the California State Auditors Office may otherwise be able to conduct.
(c)Effective January 1, 2016, the board shall contract with the California State Auditors Office to conduct an in-depth financial audit of the State Bar, including an audit of its financial statement, internal controls, and relevant management practices. The contract shall include reimbursement for the California State Auditors Office for the costs of conducting the audit. The audit shall, at a minimum, examine the revenues, expenditures, and reserves of the State Bar, including all fund transfers. The California State Auditors Office shall commence the audit no later than January 1, 2016, and a copy of the audit shall be submitted by May 15, 2016, to the board, the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary. The audit shall be submitted in compliance with Section 9795 of the Government Code. This subdivision shall cease to be operative January 1, 2017.
SEC. 14.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, confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), 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. 15.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 attorneys representation involved civil law, or criminal law, if the attorneys 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 shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code), and may not be disclosed in any subsequent arbitration or other proceedings.
SEC. 16.Section 6232 of the Business and Professions Code is amended to read:6232.(a)The committee shall establish practices and procedures for the acceptance, denial, completion, or termination of attorneys in the Attorney Diversion and Assistance Program, and may recommend rehabilitative criteria for adoption by the board for acceptance, denial, completion of, or termination from, the program.
(b)An attorney currently under investigation by the State Bar may enter the program in the following ways:
(1)By referral of the Office of the Chief Trial Counsel.
(2)By referral of the State Bar Court following the initiation of a disciplinary proceeding.
(3)Voluntarily, and in accordance with terms and conditions agreed upon by the attorney participant with the Office of the Chief Trial Counsel or upon approval by the State Bar Court, as long as the investigation is based primarily on the self-administration of drugs or alcohol or the illegal possession, prescription, or nonviolent procurement of drugs for self-administration, or on mental illness, and does not involve actual harm to the public or his or her clients. An attorney seeking entry under this paragraph may be required to execute an agreement that violations of this chapter, or other statutes that would otherwise be the basis for discipline, may nevertheless be prosecuted if the attorney is terminated from the program for failure to comply with program requirements.
(c)Neither acceptance into nor participation in the Attorney Diversion and Assistance Program shall relieve the attorney of any lawful duties and obligations otherwise required by any agreements or stipulations with the Office of the Chief Trial Counsel, court orders, or applicable statutes relating to attorney discipline.
(d)An attorney who is not the subject of a current investigation may voluntarily enter, whether by self-referral or referral by a third party, the diversion and assistance program on a confidential basis. basis and such information shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). Confidentiality pursuant to this subdivision shall be absolute unless waived by the attorney.
SEC. 17.Section 6234 of the Business and Professions Code is amended to read:6234.Any information provided to or obtained by the Attorney Diversion and Assistance Program, or any subcommittee or agent thereof, shall be as follows:
(a)Confidential and this shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This confidentiality shall be absolute unless waived by the attorney.
(b)Exempt from the provisions of Section 6086.1.
(c)Not discoverable or admissible in any civil proceeding without the written consent of the attorney to whom the information pertains.
(d)Not discoverable or admissible in any disciplinary proceeding without the written consent of the attorney to whom the information pertains.
(e)Except with respect to the provisions of subdivision (d) of Section 6232, the limitations on the disclosure and admissibility of information in this section shall not apply to information relating to an attorneys noncooperation with, or unsuccessful completion of, the Attorney Diversion and Assistance Program, or any subcommittee or agent thereof, or to information otherwise obtained by the Office of the Chief Trial Counsel, by independent means, or from any other lawful source.
SEC. 18.Section 6252 of the Government Code is amended to read:6252.As used in this chapter:
(a)Local agency includes a county; city, whether general law or chartered; city and county; school district; municipal corporation; district; political subdivision; or any board, commission or agency thereof; other local public agency; or entities that are legislative bodies of a local agency pursuant to subdivisions (c) and (d) of Section 54952.
(b)Member of the public means any person, except a member, agent, officer, or employee of a federal, state, or local agency acting within the scope of his or her membership, agency, office, or employment.
(c)Person includes any natural person, corporation, partnership, limited liability company, firm, or association.
(d)Public agency means any state or local agency.
(e)Public records includes any writing containing information relating to the conduct of the publics business prepared, owned, used, or retained by any state or local agency regardless of physical form or characteristics. Public records in the custody of, or maintained by, the Governors office means any writing prepared on or after January 6, 1975.
(f)(1)State agency means every state office, officer, department, division, bureau, board, and commission or other state body or agency, except those agencies provided for in Article IV (except Section 20 thereof) or Article VI of the California Constitution.
(2)Notwithstanding paragraph (1) or any other law, state agency shall also mean the State Bar of California, as described in Section 6001 of the Business and Professions Code.
(g)Writing means any handwriting, typewriting, printing, photostating, photographing, photocopying, transmitting by electronic mail or facsimile, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof, and any record thereby created, regardless of the manner in which the record has been stored.
SEC. 19.Section 11121 of the Government Code is amended to read:11121.As used in this article, state body means each of the following:
(a)Every state board, or commission, or similar multimember body of the state that is created by statute or required by law to conduct official meetings and every commission created by executive order.
(b)A board, commission, committee, or similar multimember body that exercises any authority of a state body delegated to it by that state body.
(c)An advisory board, advisory commission, advisory committee, advisory subcommittee, or similar multimember advisory body of a state body, if created by formal action of the state body or of any member of the state body, and if the advisory body so created consists of three or more persons.
(d)A board, commission, committee, or similar multimember body on which a member of a body that is a state body pursuant to this section serves in his or her official capacity as a representative of that state body and that is supported, in whole or in part, by funds provided by the state body, whether the multimember body is organized and operated by the state body or by a private corporation.
(e)Notwithstanding subdivision (a) of Section 11121.1, the State Bar of California, as described in Section 6001 of the Business and Professions Code.
SEC. 20.Section 11121.1 of the Government Code is amended to read:11121.1.As used in this article, state body does not include any of the following:
(a)State Except as provided in subdivision (e) of Section 11121, state agencies provided for in Article VI of the California Constitution.
(b)Districts or other local agencies whose meetings are required to be open to the public pursuant to the Ralph M. Brown Act (Chapter 9 (commencing with Section 54950) of Part 1 of Division 2 of Title 5).
(c)State agencies provided for in Article IV of the California Constitution whose meetings are required to be open to the public pursuant to the Grunsky-Burton Open Meeting Act (Article 2.2 (commencing with Section 9027) of Chapter 1.5 of Part 1 of Division 2 of Title 2).
(d)State agencies when they are conducting proceedings pursuant to Section 3596.
(e)State agencies provided for in Section 109260 of the Health and Safety Code, except as provided in Section 109390 of the Health and Safety Code.
(f)The Credit Union Advisory Committee established pursuant to Section 14380 of the Financial Code.
SEC. 21.The Legislature finds and declares that Sections 6, 7, 9, 14, 15, 16, and 17 of this act impose a limitation on the publics right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to allow the State Bar of California to fully accomplish its objectives, including, but not limited to, its licensing, regulatory, and disciplinary functions, it is imperative to protect the privacy interests of those persons submitting information to the State Bar, those applicants, members, and law corporations subject to investigation and discipline by the State Bar, and those persons participating in discussions and offers of settlement pursuant to arbitration or mediation in order to ensure that any personal or sensitive information is protected as confidential information.
SEC. 22.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)The State Bar shall issue an Annual Discipline Report by April 30 of each year describing the performance and condition of the State Bar discipline system. system, including all matters that affect public protection. The report shall cover the previous calendar year and shall include accurate and complete descriptions of all of the following:
(1)The existing backlog of cases within the discipline system, including, but not limited to, including the number of complaints as of December 31 of the preceding year that were pending beyond six months after receipt without dismissal, admonition, or the filing of a notice to show cause, of disciplinary charges. In addition to written complaints received by the State Bar, the backlog of cases shall include other matters opened in the Office of Chief Trial Counsel and pending beyond six months after receipt without the filing of notices of disciplinary charges, or the initiation of other disciplinary proceedings in the State Bar Court for the purpose of seeking the imposition of discipline against a member of the State Bar, and tables showing time periods beyond six months and the number in each category and a discussion of the reason for the extended periods.
(2)The number of inquiries and complaints and their disposition.
(3)The number number, average pending times, and types of matters self-reported by members of the State Bar pursuant to subdivision (o) of Section 6068 and subdivision (c) of Section 6086.8.
(4)The number number, average pending times, and types of matters reported by other sources pursuant to Sections 6086.7 and 6086.8. 6086.7, 6086.8, 6091.1, subdivision (b) of Section 6101, and Section 6175.6.
(5)The speed of complaint handling and dispositions by type. type, measured by the median and the average processing times.
(6)The number number, average pending times, and types of filed notices to show cause of disciplinary charges and formal disciplinary outcomes.
(7)The number number, average pending times, and types of informal discipline outcomes, other matters, including petitions to terminate practice, practice pursuant to Section 6180 or 6190, interim suspensions and license restrictions, criminal conviction monitoring, restrictions pursuant to Section 6007, motions to enforce a binding arbitration award, judgment, or agreement pursuant to subdivision (d) of Section 6203, motions to revoke probation, letters of warning, private reprovals, admonitions, and agreements in lieu of discipline.
(8)A description of the programs of the State Bar directed at assuring honesty and competence by attorneys.
(9)A description of the programs of the State Bar directed at preventing acts warranting discipline.
(8)The number, average pending times, and outcomes of complaints involving a State Bar member who has been disbarred or who has resigned, and is engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities, or petitions to terminate practice pursuant to Section 6180.
(9)The number, average pending times, and outcomes of complaints against nonattorneys engaged in the unauthorized practice of law, including referrals to district attorneys, city attorneys, or other prosecuting authorities; petitions to terminate practice pursuant to Section 6126.3; or referrals to prosecuting authorities or actions by the State Bar pursuant to Section 6126.7.
(10)A description of the condition of the Client Security Fund, including an accounting of payouts.
(11)An accounting of the cost of the discipline system by function.
(b)The Annual Discipline Report shall include statistical information presented in a consistent manner for year-to-year comparison and shall compare the information required under subdivision (a) to similar information for the previous three years. The report shall include the general data and tables included in the previous reports of the State Bar Discipline Monitor where feasible.
(c)The Annual Discipline Report shall be presented to the Chief Justice of California, to the Governor, to the Speaker of the Assembly, to the President pro Tempore of the Senate, and to the Assembly and Senate Judiciary Committees, for their consideration and shall be considered a public document.
SECTION 1.SEC. 2.Section 6140 of the Business and Professions Code, as amended by Section 3 of Chapter 429 of the Statutes of 2014, is amended to read:6140.(a)The board shall fix the annual membership fee for active members for 2016 at a sum not exceeding three hundred fifteen dollars ($315).
(b)The annual membership fee for active members is payable on or before the first day of February of each year. If the board finds it appropriate and feasible, it may provide by rule for payment of fees on an installment basis with interest, by credit card, or other means, and may charge members choosing any alternative method of payment an additional fee to defray costs incurred by that election.
(c)This section shall remain in effect only until January 1, 2017, and, as of that date, is repealed, unless a later enacted statute, that is enacted before January 1, 2017, deletes or extends that date.
SEC. 3.Section 6140.16 of the Business and Professions Code is repealed.6140.16.The State Bar shall review its workload standards to measure the effectiveness and efficiency of its disciplinary activities, including, but not limited to, the State Bar Court and the Client Security Fund, and provide guidance to the State Bar and the Legislature in allocating resources. The standards shall be used to reassess the numbers and classifications of staff required to conduct the activities of the State Bars disciplinary activities. The review shall cover the calendar years of 1998, 1999, and 2000. The State Bar shall submit a report to the Legislature on its review of workload standards by June 30, 2001.
SEC. 4.Section 6140.16 is added to the Business and Professions Code, to read:6140.16.(a)To align its staffing with its mission to protect the public as provided in Section 6001.1 and to provide guidance to the State Bar and the Legislature in allocating resources, the State Bar shall develop and implement a workforce plan for its discipline system and conduct a public sector compensation and benefits study. The workforce plan and compensation study shall be used to reassess the numbers and classifications of staff required to conduct the activities of the State Bars disciplinary activities.
(b)The workforce planning shall include the development and recommendation of an appropriate backlog goal, an assessment of the staffing needed to achieve that goal while ensuring that the discipline process is not compromised, and the creation of policies and procedures sufficient to provide adequate guidance to the staff of each unit within the discipline system.
(c)In addition to the requirements in subdivisions (a) and (b), the State Bar shall conduct a thorough analysis of its priorities and necessary operating costs and develop a spending plan, which includes its fund balances, to determine a reasonable amount for the annual membership fee that reflects its actual or known costs and those to implement its workforce plan.
(d)The State Bar shall submit a report on its workforce plan and spending plan to the Legislature by May 15, 2016, so that the plans can be reviewed in conjunction with the bill that would authorize the imposition of the State Bars membership fee. The report shall be submitted in compliance with Section 9795 of the Government Code. The State Bar shall complete and implement its workforce plan by December 31, 2016.
SEC. 5.Section 6145 of the Business and Professions Code is amended to read:6145.(a)The board shall engage the services of an independent national or regional public accounting firm with at least five years of experience in governmental auditing for an audit of its financial statement for each fiscal year. The financial statement shall be promptly certified under oath by the Treasurer of the State Bar, and a copy of the audit and financial statement shall be submitted within 120 days of the close of the fiscal year to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
The audit shall examine the receipts and expenditures of the State Bar and the State Bar sections to ensure that the receipts of the sections are being applied, and their expenditures are being made, in compliance with subdivision (a) of Section 6031.5, and that the receipts of the sections are applied only to the work of the sections.
The audit also shall examine the receipts and expenditures of the State Bar to ensure that the funds collected on behalf of the Conference of Delegates of California Bar Associations as the independent successor entity to the former Conference of Delegates of the State Bar are conveyed to that entity, that the State Bar has been paid or reimbursed for the full cost of any administrative and support services provided to the successor entity, including the collection of fees or donations on its behalf, and that no mandatory dues are being used to fund the activities of the successor entity.
In selecting the accounting firm, the board shall consider the value of continuity, along with the risk that continued long-term engagements of an accounting firm may affect the independence of that firm.
(b)The board shall contract with the California State Auditors Office to conduct a performance audit of the State Bars operations from July 1, 2000, to December 31, 2000, inclusive. A copy of the performance audit shall be submitted by May 1, 2001, to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
Every two years thereafter, the board shall contract with the California State Auditors Office to conduct a performance audit of the State Bars operations for the respective fiscal year, commencing with January 1, 2002, to December 31, 2002, inclusive. A copy of the performance audit shall be submitted within 120 days of the close of the fiscal year for which the audit was performed to the board, to the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary.
For the purposes of this subdivision, the California State Auditors Office may contract with a third party to conduct the performance audit. This subdivision is not intended to reduce the number of audits the California State Auditors Office may otherwise be able to conduct.
(c)Effective January 1, 2016, the board shall contract with the California State Auditors Office to conduct an in-depth financial audit of the State Bar, including an audit of its financial statement, internal controls, and relevant management practices. The contract shall include reimbursement for the California State Auditors Office for the costs of conducting the audit. The audit shall, at a minimum, examine the revenues, expenditures, and reserves of the State Bar, including all fund transfers. The California State Auditors Office shall commence the audit no later than January 1, 2016, and a copy of the audit shall be submitted by May 15, 2016, to the board, the Chief Justice of the Supreme Court, and to the Assembly and Senate Committees on Judiciary. The audit shall be submitted in compliance with Section 9795 of the Government Code. This subdivision shall cease to be operative January 1, 2017.
(a)The board shall fix the annual membership fee for active members for 2015 2016 at a sum not exceeding three hundred fifteen dollars ($315).
(b)The annual membership fee for active members is payable on or before the first day of February of each year. If the board finds it appropriate and feasible, it may provide by rule for payment of fees on an installment basis with interest, by credit card, or other means, and may charge members choosing any alternative method of payment an additional fee to defray costs incurred by that election.
(c)This section shall remain in effect only until January 1, 2016, 2017, and, as of that date, is repealed, unless a later enacted statute, that is enacted before January 1, 2016, 2017, deletes or extends that date.
|
Date
|
Status
|
|---|---|
| Jul 16, 2015 | Read second time. Ordered to third reading. |
| Oct 6, 2015 | Chaptered by Secretary of State. Chapter 537, Statutes of 2015. |
| Oct 6, 2015 | Approved by the Governor. |
| Sep 16, 2015 | Enrolled and presented to the Governor at 4:45 p.m. |
| Sep 11, 2015 | Assembly amendments concurred in. (Ayes 40. Noes 0.) Ordered to engrossing and enrolling. |
| Sep 11, 2015 | Assembly amendments concurred in. (Ayes 40. Noes 0. Page 2752.) Ordered to engrossing and enrolling. |
| Sep 10, 2015 | Read third time. Passed. (Ayes 80. Noes 0. Page 3094.) Ordered to the Senate. |
| Sep 10, 2015 | Read third time. Passed. Ordered to the Senate. |
| Sep 10, 2015 | In Senate. Concurrence in Assembly amendments pending. |
| Sep 4, 2015 | Read third time and amended. |
| Sep 4, 2015 | Ordered to third reading. |
| Sep 4, 2015 | Assembly Rule 69 suspended. |
| Aug 31, 2015 | Read second time. Ordered to third reading. |
| Aug 28, 2015 | Read second time and amended. Ordered to second reading. |
| Aug 28, 2015 | From committee: Do pass as amended. (Ayes 17. Noes 0.) (August 27). |
| Aug 19, 2015 | August 19 set for first hearing. Placed on APPR. suspense file. |
| Feb 24, 2015 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
| Jul 16, 2015 | Re-referred to Com. on APPR. pursuant to Joint Rule 10.5. |
| Jul 15, 2015 | Read second time and amended. Ordered to second reading. |
| Jul 14, 2015 | From committee: Do pass as amended. (Ayes 10. Noes 0.) (July 14). |
| Jun 4, 2015 | Referred to Com. on JUD. |
| May 22, 2015 | Read third time. Passed. (Ayes 38. Noes 0.) Ordered to the Assembly. |
| May 22, 2015 | Read third time. Passed. (Ayes 38. Noes 0. Page 1075.) Ordered to the Assembly. |
| May 22, 2015 | In Assembly. Read first time. Held at Desk. |
| May 20, 2015 | Ordered to special consent calendar. |
| May 14, 2015 | Read second time. Ordered to third reading. |
| May 13, 2015 | From committee: Do pass. (Ayes 7. Noes 0.) (May 12). |
| May 13, 2015 | From committee: Do pass. (Ayes 7. Noes 0. Page 983.) (May 12). |
| May 1, 2015 | Set for hearing May 12. |
| Mar 5, 2015 | Referred to Com. on JUD. |
| Feb 25, 2015 | From printer. May be acted upon on or after March 27. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Sep 11, 2015 | Unfinished Business SB387 Jackson Concurrence | Senate Floor |
Passed |
|
| Sep 10, 2015 | SB 387 Jackson Senate Third Reading By STONE | Assembly Floor |
Passed |
|
| Aug 27, 2015 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jul 14, 2015 | Do pass as amended. | Assembly Standing Committee on Judiciary |
Passed |
|
| May 22, 2015 | Special Consent #2 SB387 Jackson | Senate Floor |
Passed |
|
| May 12, 2015 | Do pass | Senate Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| Center for Public Interest Law | ** Against | Sep 10, 2015 |
| One individual | ** Against | Jul 14, 2015 |
| The State Bar Of California | ** Support | Sep 10, 2015 |
SB 387
Page 5
|
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
UNFINISHED BUSINESS
Bill No: SB 387
Amended: 9/4/15
SENATE JUDICIARY COMMITTEE: 7-0, 5/12/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski
SENATE FLOOR: 38-0, 5/22/15
AYES: Allen, Anderson, Bates, Beall, Berryhill, Block, Cannella, De León, Gaines, Galgiani, Hall, Hancock, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, Liu, McGuire, Mendoza, Mitchell, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk
NO VOTE RECORDED: Fuller
ASSEMBLY FLOOR: 80-0, 9/10/15 - See last page for vote
SUBJECT: State Bar: attorneys: annual membership fees: meetings: public records
SOURCE: State Bar of California
DIGEST: This bill authorizes the State Bar of California to collect active membership dues of up to $390 for the year 2016. This bill also requires the State Bar to develop and implement a specified workforce plan for its discipline system, conduct a public sector compensation and benefits study, and conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for the annual membership fee, as specified, and requires the State Bar to contract with the California State Auditor’s Office to conduct an in-depth financial audit of the State Bar. The bill also makes the State Bar subject to the Bagley-Keene Open Meeting Act and the California Public Records Act, as specified.
Assembly Amendments require the State Bar to implement a workforce plan, conduct a compensation and benefits study, develop a spending plan, contract with the State Auditor for an in-depth fiscal audit, and make the State Bar subject to the Bagley-Keene Open Meeting Act and the California Public Records Act.
Existing law:
Requires all attorneys who practice law in California to be members of the State Bar and establishes the State Bar for the purpose of regulating the legal profession. Pursuant to the State Bar Act, the annual mandatory membership fee set by the State Bar’s Board of Trustees to pay for discipline and other functions must be ratified by the Legislature.
Authorizes the State Bar to collect $315 in annual membership fees from active members for a total annual dues bill of $390 for the year 2015. The other $75 is pursuant to statutory authorization to assess annually the following fees: $40 for the Client Security Fund; $25 for disciplinary; and $10 to fund the Lawyer Assistance Program.
Authorizes the State Bar to collect $75 in annual membership fees from inactive members for a total annual dues bill of $115 for the year 2015. The other $40 is pursuant to statutory authorization to assess annually the following fees: $10 for the Client Security Fund; $25 for disciplinary activities; and $5 to fund the Lawyer Assistance Program.
Authorizes the State Bar to increase the annual membership fees by an additional $40, to be allocated only for purposes of providing voluntary support for nonprofit organizations that provide free legal services to persons of limited means. Members have the option of deducting the $40 from the annual membership fee if they elect not to have the amount allocated for the purposes of legal services.
Provides, under the California Public Records Act, that all records maintained by local and state governmental agencies are open to public inspection unless specifically exempt.
Requires, under the Bagley-Keene Open Meeting Act, that all meetings of a state body be open and public, but excludes the Judicial Branch from the Act. Requires the State Bar’s Board of Trustees to ensure that its meetings are consistent with, and conform to, the Bagley-Keene Open Meeting Act.
This bill:
Authorizes the State Bar to collect active membership dues of up to $390 for the year 2016.
Clarifies that information contained in the State Bar's Annual Discipline Report must include all matters affecting public protection, including specified discipline cases and both average and median case processing times.
Requires the State Bar to develop and implement a workplace plan for its discipline system and conduct a public sector compensation and benefits study, including a recommendation for an appropriate backlog goal and an assessment of staffing needed to achieve that goal. Requires the State Bar to conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for its annual dues. Requires that the workforce plan and the spending plan be submitted to the Legislature by May 15, 2016, and be implemented by December 31, 2016.
Requires the State Bar’s Board of Trustees to contract with the California State Auditor to conduct a financial audit of the State Bar, including an audit of its financial statement, internal controls and practices, and requires that the audit be submitted to the Board, the Chief Justice of the California Supreme Court, and the Assembly and Senate Judiciary Committees by May 15, 2016.
Subjects the State Bar to the California Public Records Act, with specified exceptions. Provides that identifying information submitted by applicants to the State Bar for admission to practice law and State Bar admissions records, as specified, are confidential and may not be disclosed pursuant to any state law including the California Public Records Act.
Subjects, effective April 1, 2016, the State Bar to the Bagley-Keene Open Meeting Act, as provided, with exemptions for the Judicial Nominees Evaluation Commission and the Committee of Bar Examiners
.
Background
The State Bar of California is a public corporation. Attorneys who wish to practice law in California generally must be admitted and licensed in this state and must be a member of the State Bar. (Cal. Const., art. VI, Sec. 9.) The State Bar of California is the largest state bar in the country. As of May 2015, the State Bar had 183,978 active members and 55,240 inactive members, which represents a slight annual increase in both active members and inactive members. Total State Bar membership is listed at 253,208, which includes 2,149 judge members and 11,840 members who are “Not Eligible to Practice Law.”
The State Bar’s programs are financed mostly by annual membership dues paid by attorneys as well as other fees paid by applicants seeking to practice law.
Comments
The author writes, “SB 387 seeks to authorize the State Bar of California to collect membership dues for 2016. The State Bar’s current authority to collect membership dues sunsets on January 1, 2016.” The author further notes that the annual bar dues bill is the vehicle by which the Legislature performs its historic oversight function of the State Bar.
Prior Legislation
Previous legislation on State Bar membership dues:
AB 2746 (Committee on Judiciary, Chapter 429, Statutes of 2014)
SB 345 (Evans, Chapter 681, Statutes of 2013)
AB 2685 (Committee on Judiciary, Chapter 348, Statutes of 2012)
SB 163 (Evans, Chapter 417, Statutes of 2011)
AB 2764 (Committee on Judiciary, Chapter 476, Statutes of 2010)
SB 55 (Corbett, Chapter 2, Statutes of 2010)
SB 641 (Corbett, 2009) was vetoed by the Governor.
AB 3049 (Committee on Judiciary, Chapter 165, Statutes of 2008)
SB 686 (Corbett, Chapter 474, Statutes of 2007)
AB 1529 (Jones, Chapter 341, Statutes of 2005)
AB 145 (Committee on Budget, Chapter 75, Statutes of 2005)
SB 1490 (Committee on Judiciary, Chapter 384, Statutes of 2004)
AB 1708 (Committee on Judiciary, Chapter 334, Statutes of 2003)
SB 352 (Kuehl, Chapter 24, Statutes of 2001)
SB 1367 (Schiff, Chapter 118, Statutes of 2000)
SB 144 (Schiff, Chapter 342, Statutes of 1999)
FISCAL EFFECT: Appropriation: No Fiscal Com.: Yes Local: Yes
According to the Assembly Appropriations Committee, the State Auditor will incur one-time costs of around $275,000 for the audit, to be reimbursed by the State Bar.
State Bar of California (source)
Service Employees International
Union
Center for Public Interest Law
AYES: Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Atkins
Prepared by: Benjamin Palmer / JUD. / (916) 651-4113
9/10/15 23:28:11
**** END ****
SB 387
Page 4
SENATE THIRD READING
SB 387
(Jackson)
As Amended September 4, 2015
Majority vote
SENATE VOTE: 38-0
Committee |
Votes |
Ayes |
Noes |
Judiciary |
10-0 |
Mark Stone, Weber, Wagner, Alejo, Chau, Chiu, Gallagher, Cristina Garcia, Maienschein, Thurmond |
|
Appropriations |
17-0 |
Gomez, Bigelow, Bloom, Bonta, Calderon, Chang, Nazarian, Eggman, Gallagher, Eduardo Garcia, Holden, Jones, Quirk, Rendon, Wagner, Weber, Wood |
|
SUMMARY: Reauthorizes attorney license fees at the same level as the current year and improves transparency and accountability of the State Bar and makes the State Bar subject to the Public Records Act and the Bagley-Keene Open Meeting Act. Specifically, this bill:
Reauthorizes the State Bar to collect up to $390 for active membership dues for the year 2016.
Clarifies that information contained in the State Bar's Annual Discipline Report must include all matters affecting public protection, including specified discipline cases and both average and median case processing times.
Requires the State Bar to develop and implement a workplace plan for its discipline system and conduct a public sector compensation and benefits study, including a recommendation for an appropriate backlog goal and an assessment of staffing needed to achieve that goal. Requires the State Bar to conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for its annual dues. Requires that the workforce plan and the spending plan be submitted to the Legislature by May 15, 2016, and be implemented by December 31, 2016.
Requires the State Bar's Board of Trustees (Board) to contract with the California State Auditor to conduct a financial audit of the State Bar, including an audit of its financial statement, internal controls and practices, and requires that the audit be submitted to the Board, the Chief Justice of the California Supreme Court, and the Assembly and Senate Judiciary Committees by May 15, 2015. Requires the audit to examine revenues, expenditures, reserves and fund transfers.
Subjects the State Bar to the Public Records Act, with specified exceptions. Provides that identifying information submitted by applicants to the State Bar for admission to practice law and State Bar admissions records, as specified, are confidential and may not be disclosed pursuant to any state law including the Public Records Act.
Effective April 1, 2016, subjects the State Bar to the Bagley-Keene Open Meeting Act, as provided, with exemptions for the Judicial Nominees Evaluation Commission and the Committee of Bar Examiners.
Contains chaptering out language.
EXISTING LAW:
Requires all attorneys who practice law in California to be members of the State Bar and establishes the State Bar for the purpose of regulating the legal profession. Pursuant to the State Bar Act, requires the annual mandatory membership fee set by the State Bar's Board to pay for discipline and other functions to be ratified by the Legislature.
Authorizes the State Bar to collect $315 in annual membership fees from active members for a total annual dues bill of $390 for the year 2015. Provides that the other $75 is pursuant to statutory authorization to assess annually the following fees: $40 for the Client Security Fund; $25 for the disciplinary system; and $10 for the Lawyer Assistance Program.
Authorizes the State Bar to collect $75 in annual membership fees from inactive members for a total annual dues bill of $115. Provides that the other $40 is pursuant to statutory authorization to assess annually the following fees: $10 for the Client Security Fund; $25 for the disciplinary system; and $5 for the Lawyer Assistance Program.
Directs $40 of membership dues to legal services purposes unless a member elects not to support those activities.
Requires the State Bar to annually report on the performance and condition of its discipline system, including the backlog of discipline cases that are six months old and case processing times, as provided.
Requires the State Bar to contract with an independent national or regional public accounting firm to conduct an annual financial audit of the State Bar, as provided, and requires that a copy of the audit and the financial statement be submitted, with 120 days of the close of the fiscal year, to the Board, the Chief Justice of the California Supreme Court and the Assembly and Senate Judiciary Committees.
Requires the State Auditor to conduct a performance audit of the operations of the State Bar on a biannual basis and requires a copy of the audit be submitted, with 120 days of the close of the fiscal year, to the Board, the Chief Justice of the California Supreme Court and the Assembly and Senate Judiciary Committees.
Provides, under the California Public Records Act, that all records maintained by local and state governmental agencies are open to public inspection unless specifically exempt and the exemptions include the Judicial Branch. Requires the State Bar to provide to the public, if requested, specified information on employee compensation and benefits.
Requires, under the Bagley-Keene Open Meeting Act, that all meetings of a state body be open and public, but excludes the Judicial Branch from the Act. Requires the Board to ensure that its meetings are consistent with, and conform to, the Bagley-Keene Act.
FISCAL EFFECT: According to the Assembly Appropriations Committee, the State Auditor will incur one-time costs of around $275,000 for the audit, to be reimbursed by the State Bar.
COMMENTS: Attorneys who wish to practice law in California generally must be admitted and licensed in this state and must be a member of the State Bar. California, like 30 other states including Florida, Texas, and Washington, has a unified bar, which means that the State Bar is both the regulatory arm of the state, as well as an attorney trade association. Attorneys who wish to practice law in this state must join the State Bar and their dues cover both the regulatory arm and the trade association. This bill authorizes the State Bar to collect active membership dues of up to $390 for the year 2016. The mandatory fee of $390 holds mandatory fees constant at the same rate as this year.
As required by statute, the State Auditor completes a performance audit of the State Bar every two years. This year, the State Auditor chose to review the Bar's discipline process, in particular its backlog of discipline cases, and the State Bar's recent $75 million purchase and renovation of a building in Los Angeles. The audit, released this past June, uncovered significant, questionable decisions made by the Bar in the handling of both matters.
Auditor Finds That the Bar Underreported its Backlog and, When Seeking to Eliminate the Backlog, Made Choices That Did Not Put Public Protection First. The State Bar operates a discipline process to protect the public from unscrupulous attorneys, with possible disciplinary actions ranging from letters of warning and private reprovals to disbarment. To operate effectively and maximize public protection, the State Bar must minimize its backlog (cases not processed within six months), which otherwise might allow wayward attorneys to continue to practice law, without review, for too long. Understanding of the importance of the disciplinary function and the need to reduce its backlog, the State Bar is required to report annually to the Legislature, the Governor and the Chief Justice on the discipline process and any backlog. Unfortunately, the State Auditor discovered that the State Bar did not fully and consistently report the backlog or its case processing times, and, when taking steps to reduce the backlog, did not protect the public sufficiently.
First, the audit uncovered that the State Bar did not fully or consistently report its discipline caseload backlog or its case processing times. More importantly, the Auditor determined that in order to reduce its backlog of discipline cases, the Bar made questionable choices, causing "significant risk to the public." (California State Auditor, State Bar of California: It Has Not Consistently Protected the Public Through its Attorney Discipline Process and Lacks Accountability 1 (June 2015).) This bill addresses both those issues by requiring that the State Bar fully reports its backlog and reports both its average and its median case processing times. The bill also requires the State Bar to engage in workforce planning for its discipline system and to conduct a public sector compensation and benefits study to reassess the staff required to oversee its discipline program. This should help ensure that the State Bar has the right quality and quantity of staff conducting its most important mission – protecting the public from unscrupulous attorneys.
In 2012, the State Bar purchased a building in Los Angeles; however, according to the State Auditor, the State Bar did not perform a cost-benefit analysis to determine if the purchase was appropriate and warranted before receiving approval from its Board to purchase the building, did not fully inform the Legislature of its plans, and potentially risked public safety by doing so and not prioritizing other areas, such as attorney discipline. The State Bar spent $76.6 million on the purchase and renovation of the building, which the Legislature had been told would cost just one-third of that price – $26 million. The Auditor found that the decision to purchase the Los Angles building jeopardized the State Bar's core function to protect public safety: "Rather than using its financial resources to improve its attorney discipline system, the State Bar dedicated a significant portion of its funds to purchase and renovate a building in Los Angeles in 2012." (Id. at 43)
Even more troubling, the State Bar chose to secure the additional funding for the Los Angeles building, in part, through a loan that required the State Bar to use $4.6 million of its Public Protection Fund as collateral for the loan. The sole purpose of the Public Protection Fund, which the State Bar itself established in 2001, is to protect the public in the event of a financial emergency – and that emergency is generally regarded as a veto of the State Bar’s annual dues bill, which has happened twice in the last 20 years: once in 1997 and most recently in 2009. [SB 1145 (Burton) of 1997; SB 641 (Corbett) of 2009.] However, without any notification to its members or the Legislature, the State Bar chose, unilaterally, to tie up over 70% of its Public Protection Fund – $4.6 million of the $6.5 million fund – for the 15-year life of the loan.
The use of the Public Protection Fund to secure the loan on the Los Angeles building is, according to the State Auditor, part of a larger pattern in which the State Bar has been transferring money between its various funds and using the money on unrelated items. The Auditor found that, from 2009 through 2012, the State Bar made 50 transfers between funds involving a total of $64.2 million. (Id. at 13.) While many of these may have been justified and appropriate, the Legislature may want more oversight, at least in the foreseeable future, to ensure that the State Bar and its Board are making decisions that are truly in the public's best interest.
Given the concerns raised by the Auditor about the State Bar's lack of transparency and accountability, and the given the resulting potential risk to public protection, this bill rightly requires the Auditor do an in-depth financial audit of the State Bar, including a review of the State Bar’s internal controls and relevant practices. The in-depth audit is limited in time – just one year – in the hope that during that time, the State Bar's Board can improve its own oversight of the Bar and ensure that, once again, public protection is the State Bar's paramount priority.
Bill Requires Greater Transparency and Accountability for the State Bar. Unlike other state licensing agencies that operate under the executive branch of government, the State Bar is located within the judicial branch. As a result, the State Bar has not yet been subject to some of the state’s important consumer protection and openness laws which seek to ensure the integrity, transparency, and accountability of state government operations, such as the Public Records Act and the Public Contract rules, and has not been required to fully and completely comply with the Bagley-Keene Open Meeting Act. This bill requires the State Bar to comply with both the Public Records Act (PRA) and, effective April 1, 2016, the Bagley-Keene Open Meeting Act (BKA), with appropriate exceptions to protect privacy. In particular, the bill provides that identifying information submitted by applicants to the State Bar for admission to practice law and State Bar admissions records are confidential and not subject to disclosure under the PRA. This helps protect the legitimate privacy expectations of State Bar applicants. This bill also exempts the Committee of Bar Examiners and the Commission on Judicial Nominees Evaluation from the requirements of the BKA.
Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0002210
SB 387
Page 5
SENATE THIRD READING
SB 387
(Jackson)
As Amended August 28, 2015
Majority vote
SENATE VOTE: 38-0
Committee |
Votes |
Ayes |
Noes |
Judiciary |
10-0 |
Mark Stone, Weber, Wagner, Alejo, Chau, Chiu, Gallagher, Cristina Garcia, Maienschein, Thurmond |
|
Appropriations |
17-0 |
Gomez, Bigelow, Bloom, Bonta, Calderon, Chang, Nazarian, Eggman, Gallagher, Eduardo Garcia, Holden, Jones, Quirk, Rendon, Wagner, Weber, Wood |
|
SUMMARY: Reauthorizes attorney license fees at the same level as the current year and improves transparency and accountability of the State Bar and makes the State Bar subject to the Public Records Act and the Bagley-Keene Open Meeting Act. Specifically, this bill:
Reauthorizes the State Bar to collect up to $390 for active membership dues for the year 2016.
Clarifies that information contained in the State Bar's Annual Discipline Report must include all matters affecting public protection, including specified discipline cases and both average and median case processing times.
Requires the State Bar to develop and implement a workplace plan for its discipline system and conduct a public sector compensation and benefits study, including a recommendation for an appropriate backlog goal and an assessment of staffing needed to achieve that goal. Requires the State Bar to conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for its annual dues. Requires that the workforce plan and the spending plan be submitted to the Legislature by May 15, 2016, and be implemented by December 31, 2016.
Requires the State Bar's Board of Trustees (Board) to contract with the California State Auditor to conduct a financial audit of the State Bar, including an audit of its financial statement, internal controls and practices, and requires that the audit be submitted to the Board, the Chief Justice of the California Supreme Court, and the Assembly and Senate Judiciary Committees by May 15, 2015. Requires the audit to examine revenues, expenditures, reserves and fund transfers.
Subjects the State Bar to the Public Records Act, with specified exceptions.
Subjects the State Bar to the Bagley-Keene Open Meeting Act, as provided.
EXISTING LAW:
Requires all attorneys who practice law in California to be members of the State Bar and establishes the State Bar for the purpose of regulating the legal profession. Pursuant to the State Bar Act, requires the annual mandatory membership fee set by the State Bar's Board to pay for discipline and other functions to be ratified by the Legislature.
Authorizes the State Bar to collect $315 in annual membership fees from active members for a total annual dues bill of $390 for the year 2015. Provides that the other $75 is pursuant to statutory authorization to assess annually the following fees: $40 for the Client Security Fund; $25 for the disciplinary system; and $10 for the Lawyer Assistance Program.
Authorizes the State Bar to collect $75 in annual membership fees from inactive members for a total annual dues bill of $115. Provides that the other $40 is pursuant to statutory authorization to assess annually the following fees: $10 for the Client Security Fund; $25 for the disciplinary system; and $5 for the Lawyer Assistance Program.
Directs $40 of membership dues to legal services purposes unless a member elects not to support those activities.
Requires the State Bar to annually report on the performance and condition of its discipline system, including the backlog of discipline cases that are six months old and case processing times, as provided.
Requires the State Bar to contract with an independent national or regional public accounting firm to conduct an annual financial audit of the State Bar, as provided, and requires that a copy of the audit and the financial statement be submitted, with 120 days of the close of the fiscal year, to the Board, the Chief Justice of the California Supreme Court and the Assembly and Senate Judiciary Committees.
Requires the State Auditor to conduct a performance audit of the operations of the State Bar on a biannual basis and requires a copy of the audit be submitted, with 120 days of the close of the fiscal year, to the Board, the Chief Justice of the California Supreme Court and the Assembly and Senate Judiciary Committees.
Provides, under the California Public Records Act, that all records maintained by local and state governmental agencies are open to public inspection unless specifically exempt and the exemptions include the Judicial Branch. Requires the State Bar to provide to the public, if requested, specified information on employee compensation and benefits.
Requires, under the Bagley-Keene Open Meeting Act, that all meetings of a state body be open and public, but excludes the Judicial Branch from the Act. Requires the Board to ensure that its meetings are consistent with, and conform to, the Bagley-Keene Act.
FISCAL EFFECT: According to the Assembly Appropriations Committee, the State Auditor will incur one-time costs of around $275,000 for the audit, to be reimbursed by the State Bar.
COMMENTS: Attorneys who wish to practice law in California generally must be admitted and licensed in this state and must be a member of the State Bar. California, like 30 other states including Florida, Texas, and Washington, has a unified bar, which means that the State Bar is both the regulatory arm of the state, as well as an attorney trade association. Attorneys who wish to practice law in this state must join the State Bar and their dues cover both the regulatory arm and the trade association. This bill authorizes the State Bar to collect active membership dues of up to $390 for the year 2016. The mandatory fee of $390 holds mandatory fees constant at the same rate as this year.
As required by statute, the State Auditor completes a performance audit of the State Bar every two years. This year, the State Auditor chose to review the Bar's discipline process, in particular its backlog of discipline cases, and the State Bar's recent $75 million purchase and renovation of a building in Los Angeles. The audit, released this past June, uncovered significant, questionable decisions made by the Bar in the handling of both matters.
Auditor Finds That the Bar Underreported its Backlog and, When Seeking to Eliminate the Backlog, Made Choices That Did Not Put Public Protection First. The State Bar operates a discipline process to protect the public from unscrupulous attorneys, with possible disciplinary actions ranging from letters of warning and private reprovals to disbarment. To operate effectively and maximize public protection, the State Bar must minimize its backlog (cases not processed within six months), which otherwise might allow wayward attorneys to continue to practice law, without review, for too long. Understanding of the importance of the disciplinary function and the need to reduce its backlog, the State Bar is required to report annually to the Legislature, the Governor and the Chief Justice on the discipline process and any backlog. Unfortunately, the State Auditor discovered that the State Bar did not fully and consistently report the backlog or its case processing times, and, when taking steps to reduce the backlog, did not protect the public sufficiently.
First, the audit uncovered that the State Bar did not fully or consistently report its discipline caseload backlog or its case processing times. More importantly, the Auditor determined that in order to reduce its backlog of discipline cases, the Bar made questionable choices, causing "significant risk to the public." (California State Auditor, State Bar of California: It Has Not Consistently Protected the Public Through its Attorney Discipline Process and Lacks Accountability 1 (June 2015).) This bill addresses both those issues by requiring that the State Bar fully reports its backlog and reports both its average and its median case processing times. The bill also requires the State Bar to engage in workforce planning for its discipline system and to conduct a public sector compensation and benefits study to reassess the staff required to oversee its discipline program. This should help ensure that the State Bar has the right quality and quantity of staff conducting its most important mission – protecting the public from unscrupulous attorneys.
In 2012, the State Bar purchased a building in Los Angeles; however, according to the State Auditor, the State Bar did not perform a cost-benefit analysis to determine if the purchase was appropriate and warranted before receiving approval from its Board to purchase the building, did not fully inform the Legislature of its plans, and potentially risked public safety by doing so and not prioritizing other areas, such as attorney discipline. The State Bar spent $76.6 million on the purchase and renovation of the building, which the Legislature had been told would cost just one-third of that price – $26 million. The Auditor found that the decision to purchase the Los Angles building jeopardized the State Bar's core function to protect public safety: "Rather than using its financial resources to improve its attorney discipline system, the State Bar dedicated a significant portion of its funds to purchase and renovate a building in Los Angeles in 2012." (Id. at 43)
Even more troubling, the State Bar chose to secure the additional funding for the Los Angeles building, in part, through a loan that required the State Bar to use $4.6 million of its Public Protection Fund as collateral for the loan. The sole purpose of the Public Protection Fund, which the State Bar itself established in 2001, is to protect the public in the event of a financial emergency – and that emergency is generally regarded as a veto of the State Bar’s annual dues bill, which has happened twice in the last 20 years: once in 1997 and most recently in 2009. [SB 1145 (Burton) of 1997; SB 641 (Corbett) of 2009.] However, without any notification to its members or the Legislature, the State Bar chose, unilaterally, to tie up over 70% of its Public Protection Fund – $4.6 million of the $6.5 million fund – for the 15-year life of the loan.
The use of the Public Protection Fund to secure the loan on the Los Angeles building is, according to the State Auditor, part of a larger pattern in which the State Bar has been transferring money between its various funds and using the money on unrelated items. The Auditor found that, from 2009 through 2012, the State Bar made 50 transfers between funds involving a total of $64.2 million. (Id. at 13.) While many of these may have been justified and appropriate, the Legislature may want more oversight, at least in the foreseeable future, to ensure that the State Bar and its Board are making decisions that are truly in the public's best interest.
Given the concerns raised by the Auditor about the State Bar's lack of transparency and accountability, and the given the resulting potential risk to public protection, this bill rightly requires the Auditor do an in-depth financial audit of the State Bar, including a review of the State Bar’s internal controls and relevant practices. The in-depth audit is limited in time – just one year – in the hope that during that time, the State Bar's Board can improve its own oversight of the Bar and ensure that, once again, public protection is the State Bar's paramount priority.
Bill Requires Greater Transparency and Accountability for the State Bar. Unlike other state licensing agencies that operate under the executive branch of government, the State Bar is located within the judicial branch. As a result, the State Bar has not yet been subject to some of the state’s important consumer protection and openness laws which seek to ensure the integrity, transparency, and accountability of state government operations, such as the Public Records Act and the Public Contract rules, and has not been required to fully and completely comply with the Bagley-Keene Open Meeting Act. This bill requires the State Bar to comply with both the Public Records Act (PRA) and the Bagley-Keene Open Meeting Act, with appropriate exceptions to protect privacy.
Although the State Bar is currently exempted from the PRA, the California Supreme Court has nonetheless recognized a "common law" right to access to the records of any public entity that is exempted from the PRA. (Sander v. State Bar of California (2013) 58 Cal. 4th 300 (2013)). The "common law" right to access is, however, limited by countervailing rights of personal privacy. In the Sander case, the California Supreme Court required the Bar to turn over records relating to bar passage but also specified that the Bar was only required to do so if the records could be disclosed without identifying individual applicants.
Although there is not a general, express exemption for a "right of privacy" in the PRA, the PRA is nonetheless mindful of rights of privacy. In particular, Government Code Section 6254(c) specifically exempts "personnel, medical, or similar files, the disclosure of which would constitute an unwarranted invasion of personal privacy." More generally, case law interpreting the general "catch-all" exemption in Government Code Section 6255 has held that individual privacy interests may sufficiently outweigh the public interest in disclosure. (See, e.g., California First Amendment Coalition v. Superior Court (1998) 67 Cal. App. 4th 159; Wilson v. Superior Court (1996) 51 Cal. App. 4th 1136; CBS, Inc. v. Block (1986) 42 Cal.3d 646, 655.) In summarizing the cases in which the courts have used the balancing test exemption in Government Code Section 6255 to protect a privacy interest, the Attorney General's official guideline for the PRA states: "In administering the provisions of the CPRA, agencies must sometimes use the general balancing test to determine whether the right of privacy in a given circumstance outweighs the interests of the public in access to the information."
Given that the State Bar is already subject to a common law right of access to its records, subjecting the State Bar to disclosure requirements under PRA should not entail a substantial change when it comes to balancing individual privacy rights and the public interest in disclosure. The Court in Sander set forth a balancing test between privacy and public access by limiting the right of access to "de-identified" records in order to protect the privacy interest of individual applicants. The several court decisions noted above make clear that the courts have interpreted Section 6255 of the PRA to include the agency's right, and even obligation, to weigh the individual privacy rights against the public interest in disclosure. Thus, an individual's privacy rights should be at least as protected under the PRA as under the common law's balancing test.
Analysis Prepared by: Leora Gershenzon / JUD. / (916) 319-2334 FN: 0002068
Date of Hearing: August 19, 2015
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Jimmy Gomez, Chair
SB 387
(Jackson) – As Amended July 15, 2015
Policy Committee: |
Judiciary |
Vote: |
10 - 0 |
|
|
|
|
|
|
|
|
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill maintains attorney license fees at the current level for one year and requires the California State Auditor (CSA) to conduct a financial audit of the State Bar. Specifically, this bill:
Reauthorizes the State Bar to collect up to $390 for active membership dues for the year 2016.
Requires the State Bar to contract with the CSA for a financial audit, including an audit of the Bar's financial statement, internal controls, and relevant management practices. All costs to the CSA are to be reimbursed by the State Bar.
Requires that the audit be submitted to the Chief Justice and to the Assembly and Senate Judiciary Committees by May 15, 2016.
Requires the State Bar to develop and implement a workplace plan for its discipline system and conduct a public sector compensation and benefits study, including a recommendation for an appropriate backlog goal and an assessment of staffing needed to achieve that goal.
FISCAL EFFECT:
The CSA will incur one-time costs of around $275,000 for the audit, to be reimbursed by the Bar.
COMMENTS:
Background. Attorneys who wish to practice law in California generally must be admitted and licensed in this state and must be a member of the State Bar. As of July 2015, the State Bar had 185,510 active members and 55,074 inactive members. By statute, the Bar's highest priority is protection of the public.
California, like 30 other states, has a unified bar, which means that the State Bar is both the regulatory arm of the state, as well as an attorney trade association. Attorneys who wish to practice law in this state must join the Bar and their dues cover both the regulatory arm and the trade association. This bill authorizes the State Bar to collect active membership dues of up to $390 for the year 2016—the same as for 2015. The Bar’s programs are financed almost exclusively by annual membership dues paid by attorneys, as well as other fees paid by applicants seeking to practice law.
Recent State Audit. As required by statute, the State Auditor completes a performance audit of the Bar every two years. This year, the State Auditor chose to review the Bar's discipline process, in particular its backlog of discipline cases, and the Bar's recent $75 million purchase and renovation of a building in Los Angeles.
With regard to discipline cases, the Auditor found that the Bar has continued to underreport its backlog of such cases and case processing times, and as the Bar reduced its excessive backlog, the severity of discipline imposed on attorneys decreased. With regard to the building, the Auditor found that the Bar spent $76.6 million to purchase the building, even though four months prior to the purchase, the Bar informed the Legislature that the building would cost only $26 million. The audit indicates that the Bar, in part, covered this funding shortfall through an inappropriate use of other fund sources.
The Auditor made a number of recommendations to the Bar and the Legislature, and this bill, as recently amended, implements those recommendations requiring legislative action.
Opposition. The Center of Public Interest Law (CPIL) argues that the bill should also be amended to reorganize the State Bar's Board of Trustees to have a public member supermajority or to create a state entity to review, revise, amend or reject any of the Bar's or the Board's decisions that have a anticompetitive impact; and to require the Bar to fully comply with both the Bagley-Keene Act and the Public Records Act.
Analysis Prepared by: Chuck Nicol / APPR. / (916) 319-2081
SB 387
Page 13
Date of Hearing: July 14, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
SB 387
(Jackson) – As Introduced February 24, 2015
As Proposed to be Amended
SENATE VOTE: 38-0
SUBJECT: STATE BAR DUES: ANNUAL AUTHORIZATION OF MEMBER DUES AND AUDIT RESPONSE
KEY ISSUES:
SHOULD THE LEGISLATURE AUTHORIZE THE STATE BAR TO assess MEMBERSHIP dues for active bar members in 2016 AT $390, THE SAME RATE AS LAST YEAR?
as part of ITS annual oversight process, AND IN LIGHT OF THE MOST RECENT FINDINGS OF CONCERN IN THE LATEST AUDIT OF THE BAR by the state auditor, should the legislature AND THE BAR consider additional measures to further strengthen bar procedures, accountability openness, AND GOVERNANCE CONSISTENT WITH THE BAR’S PARAMOUNT DUTY TO PROTECT THE PUBLIC?
SYNOPSIS
This bill, sponsored by the State Bar of California, continues the long tradition of Judiciary Committee oversight of the Bar via review of the annual dues authorization bill. The bill comes to this Committee after yet another year of turmoil involving the Bar where many troubling issues have arisen in the press and in an audit released just last month by the State Auditor. First, in November 2014, the State Bar terminated its executive director. In response to that termination, the executive director filed suit against the State Bar, alleging whistleblower status and charging the bar with "egregious” fiscal improprieties. The two sides are now in arbitration. Then, just last month, the State Auditor released her biannual performance audit of the Bar, reviewing the Bar's discipline process, specifically its backlog of discipline cases, and the Bar's recent $75 million purchase and renovation of a building in Los Angeles, which the Legislature had been told would cost just one-third of that price: $26 million. The audit uncovered significant, questionable decisions made by the Bar in the handling of both matters, the most egregious of which appears to be the Bar's decision to secure the additional funding for the building, in part, through a loan that required the Bar to use $4.6 million of its Public Protection Fund –constituting most of that fund – as collateral for the loan. The sole purpose of the Public Protection Fund, according to the Bar, which established the fund, is to protect the public in the event of a financial emergency. However, because of the collateralization of those funds, they will not be available in case of financial emergency for the next 15 years.
This bill maintains the bar dues at the same level that is now in place for 2015. As proposed to be amended, the bill also implements many of the recommendations from the most recent audit by the State Auditor, including better defining the backlog of discipline cases, requiring the Bar to complete a workforce plan for its discipline system, and requiring the Bar to develop a reasonable spending plan based on its necessary operations. As a result of the fiscal concerns discussed above, the bill, as proposed to be amended, also requires the State Auditor to complete an in-depth financial review of the Bar, including its internal controls and relevant practices, as well as its revenues, expenditures, reserves and fund transfers. This audit, together with the Bar's discipline workforce plan and spending plan, is intended to help answer many of the questions that today remain unanswered and help the Legislature properly oversee the operations of the Bar in the future.
The bill is opposed by the Center for Public Interest Law, unless amended to address not only the issues raised by the latest audit, but also to require the Bar to follow the law, including compliance with a recent U.S. Supreme Court case regarding governance structures of state licensing entities whose governing boards include a majority of active members licensed by the entity, and implementation of basic transparency and accountability measures "so that its various stakeholders — including the Legislature and the public, which the Bar is mandated to protect as its “paramount” priority — may meaningfully monitor its regulation of the legal profession." (Footnote omitted.)
SUMMARY: Reauthorizes attorney license fees at the same level as the current year and improves transparency and accountability of the State Bar. Specifically, this bill:
Reauthorizes the State Bar to collect up to $390 for active membership dues for the year 2016.
Clarifies that information contained in the State Bar's Annual Discipline Report must include all matters affecting public protection, including specified discipline cases and both average and median case processing times.
Requires the State Bar to develop and implement a workplace plan for its discipline system and conduct a public sector compensation and benefits study, including a recommendation for an appropriate backlog goal and an assessment of staffing needed to achieve that goal. Requires the State Bar to conduct a thorough analysis of its operating costs and develop a spending plan to determine a reasonable amount for its annual dues. Requires that the workforce plan and the spending plan be submitted to the Legislature by May 15, 2016 and be implemented by December 31, 2016.
Requires the Bar's Board of Trustees (Board) to contract with the California State Auditor to conduct a financial audit of the State Bar, including an audit of its financial statement, internal controls and practices, and requires that the audit be submitted to the Board, the Chief Justice of the California Supreme Court, and the Assembly and Senate Judiciary Committees by May 15, 2015. Requires the audit to examine revenues, expenditures, reserves and fund transfers.
EXISTING LAW:
Requires all attorneys who practice law in California to be members of the State Bar and establishes the State Bar for the purpose of regulating the legal profession. Pursuant to the State Bar Act, requires the annual mandatory membership fee set by the State Bar’s Board to pay for discipline and other functions to be ratified by the Legislature. (Business & Professions Code Section 6000 et seq. Unless stated otherwise, all further statutory references refer to that code.)
Authorizes the State Bar to collect $315 in annual membership fees from active members for a total annual dues bill of $390 for the year 2015. Provides that the other $75 is pursuant to statutory authorization to assess annually the following fees: $40 for the Client Security Fund; $25 for the disciplinary system; and $10 for the Lawyer Assistance Program. (Sections 6140, 6140.55, 6140.6, 6140.9.)
Authorizes the State Bar to collect $75 in annual membership fees from inactive members for a total annual dues bill of $115. Provides that the other $40 is pursuant to statutory authorization to assess annually the following fees: $10 for the Client Security Fund; $25 for the disciplinary system; and $5 for the Lawyer Assistance Program. (Sections 6141, 6140.55, 6140.6, 6140.9.)
Directs $40 of membership dues to legal services purposes unless a member elects not to support those activities. (Section 6140.03.)
Requires the State Bar to annually report on the performance and condition of its discipline system, including the backlog of discipline cases that are six months old and case processing times, as provided. (Section 6086.15.)
Requires the State Bar to contract with an independent national or regional public accounting firm to conduct an annual financial audit of the State Bar, as provided, and requires that a copy of the audit and the financial statement be submitted, with 120 days of the close of the fiscal year, to the Board, the Chief Justice of the California Supreme Court and the Assembly and Senate Judiciary Committees. (Section 6145(a).)
Requires the State Auditor to conduct a performance audit of the operations of the State Bar on a biannual basis and requires a copy of the audit be submitted, with 120 days of the close of the fiscal year, to the Board, the Chief Justice of the California Supreme Court and the Assembly and Senate Judiciary Committees. (Section 6145(b).)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: This bill continues the long tradition of Judiciary Committee oversight of the California State Bar via review of the annual dues authorization bill. The bill comes to this Committee after yet another year of turmoil involving the Bar at a time when many issues that have arisen in the press and in other documents remain unanswered.
Background on the Bar. Attorneys who wish to practice law in California generally must be admitted and licensed in this state and must be a member of the State Bar. (Cal. Const., Art. VI, Sec. 9.) The State Bar of California is the largest state bar in the country. As of July 2015, the State Bar had 185,510 active members and 55,074 inactive members, which represents a slight annual increase in both active members and inactive members. Total State Bar membership is listed at 254,511, which includes 2,142 judge members and 11,784 members who are “not eligible to practice law.” By statute, the Bar's highest priority is protection of the public. (Section 6001.1.)
California, like 30 other states including Florida, Texas and Washington, has a unified bar, which means that the State Bar is both the regulatory arm of the state, as well as an attorney trade association. Attorneys who wish to practice law in this state must join the Bar and their dues cover both the regulatory arm and the trade association. (Compare physicians, who are licensed and regulated by the Medical Board of California within the Department of Consumer Affairs, but who may voluntarily join the California Medical Association, their trade group, which provides "legislative, legal, regulatory, economic and social advocacy." (http://www.cmanet.org/about/).) Eighteen states, including Illinois, New York, Pennsylvania and Massachusetts, have non-unified bars, where attorneys must only join the regulatory arm and not the trade association. Dues payments required by unified bars are, typically, considerably higher that dues payments required by non-unified bars.
The Bill in Print Largely Confines Measure to Maintaining Bar Dues at Current Rates. This bill authorizes the State Bar to collect active membership dues of up to $390 for the year 2016. The mandatory fee of $390 holds mandatory fees constant at the same rate as this year. The Bar’s programs are financed almost exclusively by annual membership dues paid by attorneys, as well as other fees paid by applicants seeking to practice law. The Bar also uses its name and membership lists to help sell items such as malpractice insurance and car rentals, and receives payment for those activities. The Bar has complete discretion over how funds from this latter activity, which amount to approximately $2 million per year, are used.
Well Reported and Very Disconcerting Problems at The Bar in This Past Year Have Left the Bar Without Permanent Leadership and Have Raised Questions, Yet Unanswered, About Bar Expenditures, Oversight and Transparency. In November 2014, the State Bar terminated its executive director. According to published reports, the executive director’s annual salary at the time of termination was $259,000. In response to that termination, the executive director reportedly filed suit against the State Bar, alleging whistleblower status and charging the bar with "egregious" fiscal improprieties. Bar officials reportedly responded with accusations against him, including criticism of his lavish expense accounts, a trip to Mongolia by him and a former business partner of his, a reported $5,600 restaurant bill paid by the State Bar, and a $30,000 secret expense account gifted to Bar presidents. The Bar also fired its general counsel, who had recently been hired by the executive director, as well as the Bar’s chief financial officer. Since then, the court has ordered that the parties arbitrate their dispute, as required in the executive director's employment contract. It can only be presumed that the Bar and its former executive director are doing just that. It is hoped, in the interest of transparency, that the State Bar adopts policies to ensure accountability and good government, and that whatever settlement reached between the parties, including the amount of any Bar funds used in any possible settlement – whether discretionary or mandatory – is made public. It is also hoped that the Bar can resolve all these matters quickly and focus its core function to protect the public from errant attorneys. Regardless of any resolution with the former executive director, these matters leave a host of unanswered questions about potential Bar misspending and other possible improprieties.
While many of these reported claims may never be fully brought into the public light due to ongoing litigation involving the Bar and its former executive officer and other bar staff, enough is known already to trigger special legislative and public concern about how this public agency is being governed and overseen. Reflecting public concern, the Center for Public Interest Law (CPIL), the only public interest organization with a history of overseeing board governance, strongly opposes this bill in its current form. CPIL asserts that other substantial reforms are necessary to address a host of stated governance and process concerns, including either reorganizing the Board to have a public member supermajority, or creating a state entity to review, revise, amend or reject any of the Bar's or the Board's decisions that have a restraint impact; and requiring the Bar to fully comply with both Bagley-Keene and the Public Records Act.
Very Recent State Audit Faults the Bar for Not Consistently Protecting the Public and For Lacking Accountability. As required by statute, the State Auditor completes a performance audit of the Bar every two years. (The Bar is also required to contract with an accounting firm to perform an annual financial audit, discussed in more detail below, although that audit, to date, is much more limited.) This year, the State Auditor chose to review the Bar's discipline process, in particular its backlog of discipline cases, and the Bar's recent $75 million purchase and renovation of a building in Los Angeles. The audit, released last month, uncovered significant, questionable decisions made by the Bar in the handling of both matters. (California State Auditor, State Bar of California: It Has Not Consistently Protected the Public Through its Attorney Discipline Process and Lacks Accountability (June 2015).)
Auditor Finds That the Bar Underreported its Backlog and, When Seeking to Eliminate the Backlog, Made Choices That Did Not Put Public Protection First. The Bar operates a discipline process to protect the public from unscrupulous attorneys, with possible disciplinary actions ranging from letters of warning and private reprovals to disbarment. To operate effectively and maximize public protection, the Bar must minimize its backlog (cases not processed within six months), which otherwise might allow wayward attorneys to continue to practice law, without review, for too long. Understanding of the importance of the disciplinary function and the need to reduce its backlog, the Bar is required to report annually to the Legislature, the Governor and the Chief Justice on the discipline process and any backlog. (Section 6086.15.) Unfortunately, the State Auditor discovered that the Bar did not fully and consistently report the backlog or its case processing times, and, when taking steps to reduce the backlog, did not protect the public sufficiently.
First, the audit uncovered that the Bar did not fully or consistently report its backlog or its case processing times. While getting more accurate in recent years, the Auditor found that the Bar underreported it backlog significantly in 2009 (the Bar reported 348 cases, while the backlog was actually 4,276 cases) and, though less so, in 2010 (the Bar reported 4,193 cases, while the backlog was actually 5,174 cases). (Id. at 27.) The Bar is still underreporting its backlog today, but the difference is significantly smaller. Additionally, the Bar changed its metrics for reporting case processing times, without making that clear, changing from reporting average case processing times to reporting mean case processing times for 90 percent of its discipline cases. This change resulted in the Bar underreporting actual case processing times by over 70 percent (the Bar reported case processing time was 263 days last year, while actual average case processing time discovered by the Auditor was 450 days). (Id. at 31.)
More importantly, the Auditor determined that in order to reduce its backlog of discipline cases, the Bar made questionable choices, causing "significant risk to the public":
However, we found that as the State Bar reduced its excessive backlog of disciplinary cases, the severity of the discipline it imposed on attorneys who failed to fulfill their professional responsibilities decreased. In other words, to reduce its backlog, the State Bar allowed some attorneys whom it otherwise might have disciplined more severely—or even disbarred—to continue practicing law, at significant risk to the public. . . . The chief trial counsel confirmed that she believes the volume and speed in processing the backlog in 2011 caused the State Bar to lower the quality of its case settlements, and believed that insufficient quality control was a key factor that enabled the State Bar to decrease its backlog. (Id. at 1.)
To address these concerns, the Auditor made a number of recommendations to the Bar and the Legislature, and this bill, as proposed to be amended, implements those recommendations which require legislative action. In particular, the amendments require the Bar to fully reports its backlog and list all case types that need to be reported to help eliminate underreporting. Second, the amendments also require that the Bar to report both its average and its median case processing times. This dual report will ensure that the Legislature is fully informed about the size and processing times of any backlog. Finally, the amendments require the Bar to engage in workforce planning for its discipline system and to conduct a public sector compensation and benefits study to reassess the staff required to oversee its discipline program. This should help ensure that the Bar has the right quality and quantity of staff conducting its most important mission -- protecting the public from unscrupulous attorneys.
Purchase of Building in Los Angeles Disclosed Problems with Transparency, Accountability and Public Protection. In 2012, the Bar purchased a building in Los Angeles; however, according to the State Auditor, the Bar did not perform a cost-benefit analysis to determine if the purchase was appropriate and warranted before receiving approval from its Board to purchase the building, did not fully inform the Legislature of its plans, and potentially risked public safety by doing so and not prioritizing other areas, such as attorney discipline:
The State Bar of California’s … primary mission is the protection of the public through its attorney discipline system. However, the State Bar’s financial priorities over the past six years did not consistently reflect that mission: Rather than using its financial resources to improve its attorney discipline system, the State Bar dedicated a significant portion of its funds to purchase and renovate a building in Los Angeles in 2012. Although the Legislature approved $10.3 million for this building, the State Bar ultimately spent approximately $76.6 million on it. Facilitating this purchase required the State Bar to transfer $12 million between its various funds, some of which its Board of Trustees (board) had set aside for other purposes.
The ultimate responsibility for ensuring that the State Bar spends funds prudently rests with the board, which should have ensured that the State Bar’s decision to purchase the Los Angeles building was justified and financially beneficial. However, the State Bar did not fully communicate its questionable financial decisions regarding this new building to the board because it never presented its board with comprehensive cost estimates of purchasing versus leasing a building. Moreover, only four months before it purchased the Los Angeles building, the State Bar informed the Legislature in an annual report that a building would cost $26 million—a third of the $76.6 million the State Bar ultimately paid. In addition, the State Bar could offer no evidence that it informed the Legislature of its final decision to purchase the Los Angeles building even though state law required it to do so. As a result, key decision makers and stakeholders lacked the information necessary to make informed financial decisions related to the purchase of the Los Angeles building or to understand its impact on the State Bar’s other financial priorities. (Id. at 43.)
The Auditor found that the decision to purchase the Los Angles building jeopardized the State Bar’s core function to protect public safety: "Rather than using its financial resources to improve its attorney discipline system, the State Bar dedicated a significant portion of its funds to purchase and renovate a building in Los Angeles in 2012." (Id.)
Even more troubling, the Bar chose to secure the additional funding for the Los Angeles building, in part, through a loan that required the Bar to use $4.6 million of its Public Protection Fund as collateral for the loan. The sole purpose of the Public Protection Fund, which the Bar itself established in 2001, is to protect the public in the event of a financial emergency – and that emergency is generally regarded as a veto of the Bar’s annual dues bill, which has happened twice in the last 20 years: once in 1997 and most recently in 2009. (SB 1145 (Burton), 1997; SB 641 (Corbett), 2009.) However, without any notification to its members or the Legislature, the Bar decided, unilaterally, to tie up over 70 percent of its Public Protection Fund – $4.6 million of the $6.5 million fund – for the 15-year life of the loan. The Bar may not access those Public Protection funds for any reason during that time, or it will default on the loan for the Los Angeles building. This completely negates the purpose of the fund – public protection. It appears the Bar, without notice or consultation with the Legislature, made an unwarranted and unsupported choice by tying up the bulk of that fund for the next 15 years that jeopardized its ability to protect the public. Alternatively, the Board may have determined that the Public Protection Fund is not necessary. If that is the case, the Board, in consultation with the Legislature, could have decided that the remaining unsecured funds, as well as the $4.5 million that is securing the Los Angeles building loan after the loan is paid off, could be used for other purposes, such as reducing the “justice gap” or refunding unnecessary dues to members.
The use of the Public Protection Fund to secure the loan on the L.A. building is, according to the State Auditor, part of a larger pattern in which the Bar has been transferring money between its various funds and using the money on unrelated items. The Auditor found that, from 2009 through 2012, the Bar made 50 transfers between funds involving a total of $64.2 million. (Id. at 13.) While many of these may have been justified and appropriate, the Legislature may want more oversight, at least in the foreseeable future, to ensure that the Bar and its Board are making decisions that are truly in the public's best interest.
Given the concerns raised by the Auditor about the Bar's lack of transparency and accountability, and the given the resulting potential risk to public protection, this bill rightly proposes to have the Auditor do an in-depth financial audit of the Bar, including a review of the Bar’s internal controls and relevant practices. The in-depth audit is limited in time – just one year –in the hope that during that time, the Bar's Board can improve its own oversight of the Bar and ensure that, once again, public protection is the Bar's paramount priority. The Bar has welcomed all of the Auditor’s recommendations, and it is hoped that the Bar will welcome all steps needed to improve transparency, accountability and public protection.
Should the Bar, Despite its Historical Judicial Branch Location, be Subject to Some Additional, but Nonetheless, Important Consumer Protection, Transparency and Openness Laws? Unlike other state licensing agencies that operate under the executive branch of government, the Bar is located within the judicial branch. ("The State Bar of California is a public corporation." (Cal. Const. Art IV, Sec. 9).) Even though an important part of the Bar functions as an administrative arm of the court for purposes of admission and discipline of attorneys, the Bar has many other non-court related functions. Thus, the Bar has long been subject to legislative oversight and direction. For example, the Business & Professions Code already addresses such topics as the requirements for attorney admission (Sections 6060-69), the composition and duties of the Committee of Bar Examiners (Sections 6064.6, 64.7), and the duties and composition of the State Bar Board of Trustees itself (Sections 6010-33).
Because the Bar is housed within the judicial branch, it has not yet been subject to some of the state’s important consumer protection and openness laws which seek to ensure the integrity, transparency, and accountability of state government operations, such as the Public Records Act and the Public Contract rules. However there has been a trend towards consistency with key consumer protection laws; for example, in 2011, SB 163 (Evans), Chap. 417, Stats. 2011, made the Bar essentially subject to the terms of the Bagley-Keene Opening Meeting Law (B-K Act) by the Legislature, see discussion below.
Whether continuing to exclude the Bar's non-court related functions from the benefits of such important public protection and transparency laws make sense today, in light of the government's increasingly vigorous commitment to transparency and accountability to the public it serves and troubling information about the Bar’s financial controls and decision making, as well as the Bar's express public protection duty and its acknowledgment of the importance of providing maximum transparency to the public, warrants beneficial review and consideration by the Bar and the Legislature.
In 2011, the Legislature Directed the Bar to Conform to the Bagley-Keene Open Meeting Requirements, But the Bar Apparently Has Not Yet Fully Conformed On Some Key Secrecy Issues: All licensing boards in the executive branch governing such professions as physicians and accountants have long been subject to the B-K Act. 2011’s SB 163 (Evans) included significant reforms of the State Bar’s governance. One of those reforms specifically provided that the board “shall ensure that its open meeting requirements, as described in [Business & Professions Code] Section 6026.5, are consistent with, and conform to,” the B-K Act. (Section 6026.7.) Thus, the plain language of current law requires the Bar board to act to ensure that its open meetings requirements are “consistent with, and conform to” the B-K open meetings law.
Since then, CPIL has raised numerous and ongoing concerns to this Committee about the Bar's asserted failure to comply with the requirements of the B-K Act in some key respects. CPIL states emphatically that the clear language of Section 6026.7 contains no exceptions to the B-K Act, and thus on its face requires the Bar to comply with all of the B-K Act, not just those parts of the Act that meet with the Board’s approval. In response to concerns raised by this Committee in 2012 and ongoing by CPIL about its lack of compliance with B-K, the Bar engaged in rulemaking, but, according to CPIL's letter of opposition unless amended to this bill, "three of the four proposed changes were not only not consistent with Bagley-Keene; they directly contradict it and are inconsistent with it." CPIL contends that the Bar ignored their concerns and adopted the three changes that, in fact, contradict B-K.
While the Bar acknowledges the importance of providing maximum transparency to the public, CPIL contends that the Bar erroneously believes that the language and intent of SB 163 allows it broad discretion to depart from the B-K Act in non-trivial ways -- notwithstanding the statute’s use of the words "shall," “consistent with,” and “conform to.” CPIL points to the Board’s unsuccessful legislative efforts to eliminate the B-K Act requirement from SB 163 as further evidence that the Legislature meant what it expressly stated in SB 163, namely, that the Bar's open meetings requirements must be “consistent with, and conform to” the B-K Act. Moreover, CPIL argues that the Board’s prior, unsuccessful effort to secure a letter in the Senate Journal to limit its obligation under the B-K Act is additional evidence reinforcing that the plain language of Section 6026.7 means what it says. To address this, CPIL requests, among other amendments, that the Bar be required to comply with B-K, with specific exemptions for the Commission on Judicial Nominations and the Review Committee of the Commission on Judicial Nominees.
Should Bar Administrative Records Be More Accessible To the Public? The Legislature has broadly supported transparency and stated, in the California Public Records Act (PRA), that “access to information concerning the conduct of the people's business is a fundamental and necessary right of every person in this state.” (Gov’t Code Section 6250.) The PRA, however, explicitly exempts agencies under Article IV of the State Constitution, thus apparently, although not explicitly, exempting the Bar. While courts are not subject to the PRA, judicial records are public records (with exceptions) and the Legislature has directed the judicial branch to open up its administrative records as well. (See Gov’t Code Section 68106.2, directing the Judicial Council to develop a rule of court – now Rule 10.500 – to provide public access to the administrative records of the courts.) However, because of the Bar’s status as a judicial branch entity that is also not a court, it does not appear to have been included in the broad statutory public protection mandate for public access to records.
The California Supreme Court recently determined that the Bar is subject to the common law right of access to public records, which allows access to public records “in which there is a legitimate public interest, if that interest is not outweighed by other interests.” (Sander v. State Bar (2013) 58 Cal.4th 300, 323 [Court found that the Bar must provide access to its admissions database as long as applicants’ privacy can be protected].) However, the common law right of access is much more limited than the PRA and thus the Bar has much less public oversight today than other regulatory and licensing agencies located in the Executive Branch.
CPIL states emphatically that the Bar should be made subject to the PRA, arguing that it has thus far failed to comply with a request for information that is specifically required today by statute – Section 6001.4 specifically requires the State Bar make available, "upon request of a member of the public, the classification and total annual compensation paid to each of its employees by name, as well as any and all rules, policies, and agreements pertaining to the compensation and benefits of any employees of the State Bar." However, writes CPIL, for "eight months, a journalist with a California legal newspaper has been requesting the exact information that section 6001.4 requires the Bar to disclose. The Bar has entirely failed to respond to her request at all, much less provide the information she has requested." It appears that the public's right of access to public information maintained by the Bar and the Bar's general transparency and accountability could be improved. Thus, clarifying the PRA’s effect on the State Bar appears to be an additional and timely issue for possible consideration as part of the Legislature’s oversight process.
Should The Bar Follow Applicable Contracting Rules Under the Public Contract Code for Greater Public Protection and Transparency of Operations? The Public Contract Code requires that contracts for services entered into by state agencies for $5,000 or more are generally subject to significant control requirements, including competitive bidding, and review and approval by the Department of General Services. However, courts and agencies within the judicial branch are currently specifically exempt from these requirements. (Public Contract Code Section 10335.7.) Instead, the Bar has only been required by the Legislature to use competitive bidding for contracts that are over $50,000 in the aggregate or, in the case of information technology, over $100,000. (Section 6008.6.) There is also apparently no agency similar to the Department of General Services, which oversees state contracting, to provide oversight of the Bar’s contracting processes. While there is certainly no suggestion that the Bar may be inappropriately awarding contracts or otherwise misusing its resources, this apparent lack of traditional oversight mechanisms may inadvertently leave open the risk of potential misuse of member dues. Recent difficulties in the development of various state automation systems underscore the need and benefit for all state agencies to have independent oversight mechanisms and competitive bidding requirements when it comes to outside contracting, so this may be an issue for consideration by the Bar and the Legislature.
This Bill Does Not Increase Modest Assistance to Legal Aid Organizations, Although Much More is Needed to Begin to Close the "Justice Gap." As this Committee has highlighted for many years, there has long been a dire need for civil legal services for poor Californians – especially underserved groups, such as elderly, disabled, children and people needing assistance with English. By many measures, California suffers from an overwhelming "justice gap" between the legal needs of low-income people and the legal help they receive. It has been estimated that the cost of closing the gap would amount to $400 million. Even in the best of times, legal aid providers have been able to address only a fraction of the demand for help. Because of insufficient resources, legal services programs can offer assistance in only a few types of cases; many poor and moderate-income Californians do not qualify for services; and most of those who meet the strict eligibility limits and seek assistance regarding problems for which a legal services office provides service are nevertheless turned away, simply for lack of staff. Even those who receive services are frequently under-served with brief advice and consultation, rather than full and fair representation.
As this Committee knows well, for over 30 years, interest on lawyer trust accounts (IOLTA) has been the primary mechanism on which the state has relied to fund legal aid programs. It seems likely that when the IOLTA program was instituted in 1981, no one anticipated that bank interest rates would be virtually zero, as the federal funds rate has been since the 2009-10 IOLTA grant cycle. The historic plunge in interest rates continues to pose an unprecedented challenge to the premise that legal aid programs can rely on IOLTA funding to help maintain their essential mission. Absent a substantial increase in interest rates, which is certainly undesirable in macro-economic terms, it has become painfully clear that IOLTA alone will never adequately address the needs of those less fortunate who require legal assistance.
As this Committee has frequently discussed and sought to ameliorate, funding for legal aid organizations that provide essential legal help for extremely impoverished individuals has been decimated in recent years. The Legislature has for years worked with the Bar to come up with alternative funding sources, in the past using non-mandatory dues, but that was allowed to sunset several years ago diminishing state funding for legal aid even further, despite significantly greater needs for legal services by those who cannot afford them, and dramatically lower funding from other sources. Current law provides an optional legal aid fee by which members who choose to do so can help defray the cost of ensuring that legal services are available without regard to ability to pay market rates, consistently with each lawyer's professional responsibility, at the rate of $40. These voluntary contributions make up for some, but by no means all, of those lost non-mandatory contributions. Unfortunately, this year's bill does not provide any new funding for legal services programs.
The Bar’s leadership has, in the past, stated its commitment to this Committee to find other non-mandatory sources of funds as soon as possible to not just bridge this continuing crisis but to try finally to overcome it. A recent resolution adopted by the State Bar on May 9, 2015 details the funding crisis in legal services and finds that "due to inadequate funding legal services must turn away eligible clients who are left to navigate complex legal situations on their own – and risk losing their families, homes and livelihoods in the process." The resolution ends with the Bar and its Board supporting "increased stable funding for legal services through an increased Equal Access Fund [limited state General Fund support of legal services] and otherwise to provide critically needed legal help to low-income and vulnerable residents of California." It is hoped that going forward the Bar and its Board will be able to find additional, ongoing funding for legal services from the Bar's unrestricted sources of funding, funding that today is used for discretionary expenses, including executive travel and dining and other nonessential and non-public protection funds, that might be better invested in helping California's most vulnerable residents who seek legal assistance to avoid, among other things, domestic violence, unemployment and homelessness.
Should the Bar's Board of Trustees Continue to Oversee Attorneys When the Vast Majority of Members Are Practicing Attorneys? Under recent reforms enacted by the Legislature in an effort to address earlier and significant concerns about the Bar's governance (SB 163 (Evans), Chap. 417, Stats. 2011), the State Bar is governed by its Board of Trustees, which is now made up of 19 members (though the Board President may remain on the Board for one year after his or her term is completed and be the 20th member, which current Board President Craig Holden has elected to do). (Section 6010 et seq.) Among other reforms, SB 163 revised the composition and reduced the size of the Board from 23 to 19 members over a three-year period, adding for the first time a substantial component of attorney members selected by the Supreme Court. That bill also, consistent with other professional statutes, specified for the first time that the protection of the public is the highest priority for the Bar and its Board.
Under the Legislature’s 2011 governance reforms, the Board was still permitted to have a supermajority majority of lawyer-members following assurances from the Bar that the increased percentage of public members would address Board governance problems. Thus, of the current 19 (or 20) board members, 13 (or 14) are lawyer members -- 6 of whom are elected by bar members in districts across the state -- and 6 are public members. Currently, there are three vacant public member seats, all of them gubernatorial appointees, so the Board is currently composed of 17 members, 14 of whom are active members of the State Bar and 3 of whom are public members.
Notwithstanding these prior reforms, CPIL still questions whether the Board can adequately govern the Bar and the legal profession and, most importantly protect the public, given that the vast majority of the Board (currently 82 percent) are also active Bar members. In support of this concern, CPIL cites a very recent U.S. Supreme Court case which found that if a state licensing board has a majority of members who are active market participants, the board can only invoke antitrust immunity if it is subject to active state supervision. In that case, North Carolina State Board of Dental Examiners v. Federal Trade Commission (2015) 135 S. Ct. 1101, the Supreme Court held, in a 6-3 decision, that the North Carolina Dental Board, (composed of eight members, six of whom were practicing dentists) did not have state immunity to an antitrust action brought by the Federal Trade Commission to stop them from preventing non-dentists from offering teeth whitening services. The Court held that the dental board, since it was controlled by "market participants" who pose a risk of self-dealing, could only invoke state immunity to an antitrust action if the board is "actively supervised" by state officials. It is important to note that 75 percent of the North Carolina dental board members were active dentists, while currently fully 82 percent of the State Bar Board is composed of active Bar members. Even when all public members are appointed, the Bar's Board will still be composed of a supermajority of active Bar members – 68 to 70 percent (depending on whether the Board has 19 or 20 members) active Bar members.
CPIL argues that the only way that the Bar can satisfy the holding in North Carolina State Board of Dental Examiners, supra, is to "(1) restructure the Board of Trustees to a supermajority of public members, with the added provision that no vote may be taken where those voting are not public members in the majority, or (2) create clear state supervision of all Bar acts and decisions for anticompetitive effect."
ARGUMENTS IN OPPOSITION: CPIL strongly opposes this bill, unless it is amended to make the changes discussed above, including either reorganizing the Board to have a public member supermajority, or creating a state entity to review, revise, amend or reject any of the Bar's or the Board's decisions that have a restraint impact; and requiring the Bar to fully comply with both Bagley-Keene Act and the Public Records Act. In addition, CPIL seeks a number of other changes to make the Bar operate in a more transparent and effective, including:
Transfer the Bar's discipline function (the Office of Chief Trail Counsel, the Office of Investigations, and the Audit and Review Unit) to the Attorney General's office to avoid any anti-competitive challenge to the discipline function;
Increase Bar dues to better support the discipline function and for audits of the discipline unit;
Subject the Bar to the rulemaking provisions of the Administrative Procedure Act (which would also provide more state oversight over the Bar);
Create a Chief Operating Officer to oversee all expenditures and have that person report directly to the executive director;
Require that the executive director's expenses be reviewed directly by the Board;
Better define the discipline backlog, more accurately reporting on the backlog and on case processing times, and complying with existing law regarding complex cases;
Require the Bar to webcast all Board and Board standing committee meetings and to post minutes of those meetings online.
CPIL believes that all of these changes are necessary to end the Bar's "practice of secrecy, nontransparency, deliberate evasion and ignorance of clearly applicable law, and dereliction of regulatory duties." CPIL adds that such conduct by the Bar "is not acceptable for any government agency, much less one charged with regulation of the legal profession and protection of the public as its 'paramount' priority."
REGISTERED SUPPORT / OPPOSITION:
Support
State Bar of California (sponsor)
Opposition
Center for Public Interest Law (unless amended)
One individual
Analysis Prepared by: Alison Merrilees and Leora Gershenzon / JUD. / (916) 319-2334
SB 387
Page 3
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Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 |
THIRD READING
Bill No: SB 387
Introduced: 2/24/15
SENATE JUDICIARY COMMITTEE: 7-0, 5/12/15
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski
SUBJECT: Attorneys: annual membership fees
SOURCE: State Bar of California
DIGEST: This bill authorizes the State Bar of California to collect active membership dues of up to $390 for the year 2016.
Existing law:
Requires all attorneys who practice law in California to be members of the State Bar and establishes the State Bar for the purpose of regulating the legal profession. Pursuant to the State Bar Act, the annual mandatory membership fee set by the State Bar’s Board of Trustees to pay for discipline and other functions must be ratified by the Legislature.
Authorizes the State Bar to collect $315 in annual membership fees from active members for a total annual dues bill of $390 for the year 2015. The other $75 is pursuant to statutory authorization to assess annually the following fees: $40 for the Client Security Fund; $25 for disciplinary; and $10 to fund the Lawyer Assistance Program.
Authorizes the State Bar to collect $75 in annual membership fees from inactive members for a total annual dues bill of $115 for the year 2015. The other $40 is pursuant to statutory authorization to assess annually the following fees: $10 for the Client Security Fund; $25 for disciplinary activities; and $5 to fund the Lawyer Assistance Program.
Authorizes the State Bar to increase the annual membership fees by an additional $40, to be allocated only for purposes of providing voluntary support for nonprofit organizations that provide free legal services to persons of limited means. Members have the option of deducting the $40 from the annual membership fee if they elect not to have the amount allocated for the purposes of legal services.
This bill authorizes the State Bar to collect active membership dues of up to $390 for the year 2016.
Background
The State Bar of California is a public corporation. Attorneys who wish to practice law in California generally must be admitted and licensed in this state and must be a member of the State Bar. (Cal. Const., art. VI, Sec. 9.) The State Bar of California is the largest state bar in the country. As of May 2015, the State Bar had 183,978 active members and 55,240 inactive members, which represents a slight annual increase in both active members and inactive members. Total State Bar membership is listed at 253,208, which includes 2,149 judge members and 11,840 members who are “Not Eligible to Practice Law.”
The State Bar’s programs are financed mostly by annual membership dues paid by attorneys as well as other fees paid by applicants seeking to practice law. This bill authorizes the State Bar to collect the annual membership dues for 2016.
Comments
The author writes, “SB 387 seeks to authorize the State Bar of California to collect membership dues for 2016. The State Bar’s current authority to collect membership dues sunsets on January 1, 2016.” The author further notes that the annual bar dues bill is the vehicle by which the Legislature performs its historic oversight function of the State Bar.
Prior Legislation
Previous legislation on State Bar membership dues:
AB 2746 (Committee on Judiciary, Chapter 429, Statutes of 2014)
SB 345 (Evans, Chapter 681, Statutes of 2013)
AB 2685 (Committee on Judiciary, Chapter 348, Statutes of 2012)
SB 163 (Evans, Chapter 417, Statutes of 2011)
AB 2764 (Committee on Judiciary, Chapter 476, Statutes of 2010)
SB 55 (Corbett, Chapter 2, Statutes of 2010)
SB 641 (Corbett, 2009) was vetoed by the Governor.
AB 3049 (Committee on Judiciary, Chapter 165, Statutes of 2008)
SB 686 (Corbett, Chapter 474, Statutes of 2007)
AB 1529 (Jones, Chapter 341, Statutes of 2005)
AB 145 (Committee on Budget, Chapter 75, Statutes of 2005)
SB 1490 (Committee on Judiciary, Chapter 384, Statutes of 2004)
AB 1708 (Committee on Judiciary, Chapter 334, Statutes of 2003)
SB 352 (Kuehl, Chapter 24, Statutes of 2001)
SB 1367 (Schiff, Chapter 118, Statutes of 2000)
SB 144 (Schiff, Chapter 342, Statutes of 1999)
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
State Bar of California (source)
OPPOSITION: (Verified 5/14/15)
None received
Prepared by: Benjamin Palmer / JUD. / (916) 651-4113
5/15/15 15:24:29
**** END ****
SB 387 (Jackson)
Page 12 of 12
Senator Hannah-Beth Jackson, Chair
2015 - 2016 Regular Session
SB 387 (Jackson)
Version: February 24, 2015
Hearing Date: May 12, 2015
Fiscal: No
Urgency: No
BCP
SUBJECT
Attorneys: annual membership fees
DESCRIPTION
This bill would authorize the State Bar of California (State Bar or the Bar) to collect active membership dues of up to $390 for the year 2016. Consistent with existing law, those dues would fund only mandatory programs of the State Bar, and members could deduct $5 if they did not wish to support lobbying and other legislative activities. Members could also deduct an additional $5 if they did not wish to fund access and elimination of bias programs.
BACKGROUND
The State Bar of California is a public corporation. Attorneys who wish to practice law in California generally must be admitted and licensed in this state and must be a member of the State Bar. (Cal. Const., art. VI, Sec. 9.) The State Bar of California is the largest state bar in the country. As of May 2015, the State Bar had 183,978 active members and 55,240 inactive members, which represents a slight annual increase in both active members and inactive members. Total State Bar membership is listed at 253,208, which includes 2,149 judge members and 11,840 members who are “Not Eligible to Practice Law.”
The Bar’s programs are financed mostly by annual membership dues paid by attorneys
as well as other fees paid by applicants seeking to practice law. This bill would authorize the State Bar to collect the annual membership dues for 2016.
CHANGES TO EXISTING LAW
Existing law requires all attorneys who practice law in California to be members of the State Bar and establishes the State Bar for the purpose of regulating the legal profession. Pursuant to the State Bar Act, the annual mandatory membership fee set by the State Bar’s Board of Trustees to pay for discipline and other functions must be ratified by the Legislature. (Bus. & Prof. Code Sec. 6000 et seq.)
Existing law authorizes the State Bar to collect $315 in annual membership fees from active members for a total annual dues bill of $390 for the year 2015. (Bus. & Prof. Code Sec. 6140.) The other $75 is pursuant to statutory authorization to assess annually the following fees: $40 for the Client Security Fund (Bus. & Prof. Code Sec. 6140.55); $25 for disciplinary activities (Bus. & Prof. Code Sec. 6140.6); and $10 to fund the Lawyer Assistance Program (Bus. & Prof. Code Sec. 6140.9).
Existing law authorizes the State Bar to collect $75 in annual membership fees from inactive members for a total annual dues bill of $115 for the year 2015. (Bus. & Prof. Code Sec. 6141.) The other $40 is pursuant to statutory authorization to assess annually the following fees: $10 for the Client Security Fund (Bus. & Prof. Code Sec. 6140.55); $25 for disciplinary activities (Bus. & Prof. Code Sec. 6140.6); $5 to fund the Lawyer Assistance Program (Bus. & Prof. Code Sec. 6140.9).
Existing case law, Keller v. State Bar of California (1990) 496 U.S. 1, prohibits the use by the State Bar of mandatory dues to fund political and ideological activities, as a violation of a member’s First Amendment freedom of speech rights, where such expenditures are not necessarily or reasonably incurred for the purpose of regulating the legal profession or improving the quality of the legal services available to the people of the state. Existing law allows members to deduct up to $5 from the mandatory dues if the member does not wish to fund legislative activities and non-Keller lobbying and activities with his or her dues. (Bus. & Prof. Code Sec. 6140.05; Keller v. State Bar of California (1990) 496 U.S. 1.)
Existing law authorizes the State Bar to increase the annual membership fees by an additional $40, to be allocated only for purposes of providing voluntary support for nonprofit organizations that provide free legal services to persons of limited means. Members have the option of deducting the $40 from the annual membership fee if they elect not to have the amount allocated for the purposes of legal services. (Bus. & Prof. Code Secs. 6033, 6140.03.)
This bill would authorize the State Bar to collect active membership dues of up to $390 for the year 2016.
COMMENT
1. Stated need for the bill
According to the author, “SB 387 seeks to authorize the State Bar of California to collect membership dues for 2016. The State Bar’s current authority to collect membership dues sunsets on January 1, 2016.” The author further notes that the annual bar dues bill is the vehicle by which the Legislature performs its historic oversight function of the State Bar.
2. Mandatory membership dues
This bill would authorize the State Bar to collect active membership dues of up to $390 for the year 2016. That amount is consistent with last year and is broken down as follows: $315 for the actual membership fee, $40 for the Client Security Fund, $25 for disciplinary activities, and $10 to fund the Lawyer Assistance Program. Also consistent with prior bar dues bills, SB 387 would only extend the authority for the State Bar to collect membership dues by one year so as to provide an opportunity next year for continued oversight of the State Bar.
Staff notes that while there appears to be no debate as to whether or not the State Bar should be able to continue to collect dues for 2016, there has been significant public discussion, as the result of recent litigation, about the activities of the State Bar. It should be noted that some of the concerns arise from allegations that are still subject to pending litigation – as a result, it is unclear what, if any misconduct occurred at the State Bar. In light of those concerns – including those involving the discipline system (which is currently subject to a State Audit) - the following comments discuss significant updates as to the status of the State Bar.
3. Discipline
Under existing law, the State Bar’s highest priority is protection of the public, and, whenever the protection of the public is inconsistent with other interests sought to be promoted, the protection of the public shall be paramount. (Bus. Prof. Code Sec. 6001.1.) The State Bar, in submitting its Annual Discipline Report for Year Ending December 31, 2014, noted that “[t]he attorney discipline system is, by far, the largest component of the State Bar, and it plays an indispensable role in carrying out the Bar’s mission of public protection. It is the discipline system which receives complaints against attorneys, investigates those complaints, prosecutes them when warranted, and recommends sanctions against attorneys found culpable of misconduct. The performance of the discipline system is a crucial measure of the success of the State Bar as a public regulatory agency.” (R. Hawley letter re: Annual Discipline Report for Year Ending December 31, 2014 (Apr. 30, 2015) State Bar, pg. 1.) The State Bar further outlined the structure of the discipline system as follows:
In California, a lawyer is licensed when admitted as a member of the State Bar. Only active members of the State Bar may practice law. The State Bar is a constitutional agency established in the judicial branch. In administering the requirements for admission and discipline of California lawyers, the State Bar is an administrative arm of the California Supreme Court. Under its inherent judicial power to regulate admission and discipline, it is the Supreme Court that admits and disbars, or suspends a lawyer from the practice of law.
In California’s attorney discipline system, all communications and information concerning the conduct of California lawyers are first received by the State Bar’s Office of the Chief Trial Counsel [(OCTC)]. OCTC investigates those complaints involving allegations of professional misconduct and may initiate and prosecute disciplinary proceedings in the State Bar Court. The Hearing Department of the State Bar Court conducts evidentiary hearings and renders a decision with findings and recommendations of discipline that are reviewable by the Review Department of the State Bar Court. The State Bar Court’s final decision and accompanying record in each case are then transmitted to the Supreme Court. In cases where the State Bar Court recommends the suspension or disbarment of a lawyer, the Supreme Court undertakes an independent determination of the discipline to be imposed. Discipline occurs with a final decision and order of the Supreme Court. (Id., pgs. 2-3.)
Regarding the performance of the discipline system, the 2014 Annual Discipline Report notes that, “[a]s of December 31, 2014, the number of backlog active cases was 263, compared to 2,612 in 2010. This included 157 cases still under inquiry or active investigation, as compared to 1,584 in 2010 and 106 cases, for which the investigation was complete but charges had not yet been filed, significantly lower than the 1,028 cases in 2010.” (Id., transmittal page.) The report further includes the following statistical data about the discipline system:
Activity in 2014
The State Bar’s Office of Chief Trial Counsel (OCTC) received 16,024 new complaints, reportable actions, and other cases in 2014.
OCTC’s Intake Unit processed 15,497 cases, of which 3,791 were referred to the Enforcement Unit for investigation.
OCTC completed 3,648 investigations, with 1,084 of those having sufficient evidence to support the imposition of discipline against the attorney, and filed formal charges in 1,008 cases.
The State Bar Court took action on 1,675 cases, closing 117 and referring 1,158 to the California Supreme Court.
The Supreme Court disposed 1,536 cases, dismissing 4; remanding 1 to the State Bar Court; suspending 1; granting 508 requests for resignations of attorneys without charges pending; and imposing discipline in 1,012 cases.
The Supreme Court disbarred 171 attorneys in 2014, including 55 by reason of default, and suspended 263 attorneys.
Caseload in 2014
On December 31, 2014, OCTC had an open caseload of 4,095 active cases, which included 1,796 in the inquiry stage, 1,225 in the investigation stage, 174 in pre-filing, and 900 cases before the State Bar Court.
The office’s active caseload included 261 active cases over six months old, including 39 in inquiry, 116 in investigation and 106 in pre-filing matters.
The office also had a suspended caseload of 1,816 cases in the investigation or pre-filing stages. Of these, 1,712 were over six months old (including 1,548 investigations and 164 pre-filing cases).
The office’s total backlog, encompassing all active and suspended cases older than six months and not yet formally filed, was 1,973 cases.
Speed of Case Handling in 2014
The median time to evaluate a case and refer it for investigation was 21 days.
The median time to complete an investigation having sufficient evidence to support the imposition of discipline against the attorney was 155 days.
The median time between the completion of an investigation and filing formal charges was 74 days.
The median time from formal filing to a referral to the Supreme Court was 168 days.
The median total time from the receipt of a complaint to filing of formal charges was 263 days.
The median total time from the receipt of a complaint to final disposition by the Supreme Court was 505 days. (Id., pgs. 2-3.)
It should be noted that, under existing law, the Board of Trustees is required to contract with the California State Auditor’s office to conduct a performance audit of the State Bar’s operations every two years. That audit is currently under way and will reportedly focus on the discipline system – accordingly, the State Bar should work with the author and other stakeholders on any recommendations made by the State Auditor when the report is released in the next couple months. As a matter of policy, addressing any concerns raised by the audit would appear essential to ensuring that the State Bar is performing its fundamental mission of public protection by appropriately disciplining attorneys who have violated the public trust.
4. Client Security Fund
Under existing law, the Client Security Fund (CSF) seeks to protect consumers of legal services by mitigating losses caused by the “dishonest” conduct of California attorneys. The CSF is funded through a mandatory contribution that is collected as part of the annual bar dues bill – active members contribute $40, and, inactive members contribute $10. Under the State Bar’s rules, the following types of dishonest conduct can lead to reimbursement from the fund: (1) theft or embezzlement of money or the wrongful taking or conversion of money or property; (2) failure to refund unearned attorney fees paid to the lawyer in advance where the lawyer performed no services, or an insignificant portion of the services; (3) the borrowing of money from a client without the intention or reasonably anticipated ability to repay the money; (4) obtaining money or property from a client by representing that it would be used for investment purposes when no investment is made; and (5) an act of intentional dishonesty or deceit that directly leads to the loss of money or property that actually came into the lawyer’s possession. The State Bar’s 2014 Annual Discipline Report further notes:
Between 2005 and 2008, the Client Security Fund (CSF) program received about 1,100 applications per year. However, in 2009, the loan modification fraud crisis spurred a dramatic surge in CSF applications. Over 3,000 new applications were received in 2009 and almost 4,000 were received in 2010. The rate of new applications has declined every year since then, but, even in 2014, applications remained 40 [percent] above the 2005 - 8 level.
As a consequence, the Client Security Fund has drawn down its reserves from $11.4 million at the beginning of 2010 to $2.2 million at the end of 2014. At year end, there were 5,674 open applications for CSF assistance. Based on past experience, the State Bar estimates that payouts related to these applications will eventually total $17.6 million. At current revenue levels, it will take approximately three years to collect sufficient funds to finance these grants. (State Bar, Annual Discipline Report for Year Ending December 31, 2014 (Apr. 30, 2015), pg. 58.)
Given the current status of the CSF and the public policy goal of ensuring that the losses of consumers injured by dishonest attorneys are made whole (to the extent possible), the State Bar should continue to explore ways in which the CSF deficit can be addressed. Furthermore, it should be noted that an additional influx of claims could occur in the near future should there be increased instances of immigration fraud as a result of President Obama’s series of executive actions relating to immigration accounted on November 20, 2014.
5. Composition of Board of Trustees
Under existing law, the State Bar is governed by a Board of Trustees that is generally made up of 19 members.1 Of those 19 members, 13 are “lawyer members,” and 6 are public “non-lawyer” members. The six public members are appointed as follows: four by the Governor, one by the Senate Committee on Rules, and one by the Speaker of the Assembly. Currently, there are four vacant public member seats, and, of those seats, three are due to the lack of appointments of public members by the Governor. The fourth seat has been appointed by the Governor and is pending approval by the Senate Committee on Rules.
In light of the current focus on the State Bar, it appears essential that these appointments be made as soon as possible by the Governor. Accordingly, all interested parties should continue working to encourage the Governor to make those appointments as soon as possible so as to allow the Board of Trustees to have the benefit of those public members. The appointment of those public members would appear to be essential so that the Board of Trustees can adequately respond to the recent concerns.
6. Fiscal Condition of the State Bar
The following information was reported to the Legislature in the 2014 Financial Statement and Independent Auditor’s Report of the State Bar of California:
Assets – As of December 31, 2014, the State Bar’s total assets were $195.6 million, down slightly by $2.4 million, or 1.2 [percent] compared to $198.0 million last year. The decrease is due to a combination of 1) a $6.7 million decrease in cash [and] investment; 2) a $0.8 million net decrease in capital assets; partially offset by 3) a $4.6 million net increase in prepayments and accounts receivables; and 4) a $0.5 million net increase in Other Postemployment Benefits Obligation (OPEB) assets.
Cash, investments, and restricted cash consisted of balances in demand deposit accounts, money market accounts, the State Bar’s share of California’s Local Agency Investment Fund, and investment securities. For the year ended December 31, 2014, the combined cash and investment balance was $78.9 million, down by $6.6 million or 7.8[percent] from $85.6 million last year. The lower cash balance is due primarily to grant prepayment made for 2015 and a $1.5 million contribution made to the State Bar’s OPEB Plan.
Capital assets consisted of land, buildings, building and leasehold improvements, tenant improvement, office equipment, and furniture and fixtures, net of accumulated depreciation. Net capital assets balance as of December 31, 2014, was $101.4 million, a $0.8 million decrease compared to $102.2 million last year. The decrease is due to normal depreciation of $3.6 million, partially offset by $2.8 million additional capital expenditures incurred in 2014.
Other assets consisted of interest receivable, prepayments, grants receivable, other receivable, and the OPEB asset. The combined balance as of December 31, 2014, was $15.3 million, up by $5.1 million or 50.0 [percent] from $10.2 million in 2013. The increase is due to a $0.6 million net increase in the OPEB plan asset and a higher prepayment balance as a result of timing of payments of the [State] Bar’s two grant funds. The 2015 first quarter grant payments for the Legal Service Trust Fund and Equal Access Fund programs were prepaid in December 2014.
Liabilities – The State Bar’s total liabilities consisted of accounts payable to vendor accounts, unearned fees collected in advance, grants payable, loans payable, and employee vacation and sick leave accruals. As of December 31, 2014, State Bar’s total liabilities were $57.6 million, down by $9.5 million or 14.2[percent] compared to $67.1 million last year. The decrease is a result of a $1.3 million reduction in the loan payable from the repayment of the Los Angeles building mortgage, and a $8.2 million decrease in [Interest on Lawyers’ Trust Accounts (IOLTA)] grant and accounts payable. The higher accounts payable balance in 2013 was due to the timing of payments for the L.A. building construction costs at year-end. The decrease in grants payable in 2014 is due to the restructuring of the IOLTA grant program. In March, 2014, the Board adopted a resolution to align the IOLTA grant year to a calendar year. As a result, all of the 2014 grant distributions were processed in 2014 and there was not a grants payable balance as of December 31, 2014.
Net Position – The State Bar’s net position as of December 31, 2014, was $138.0 million, up by $7.1 million or 5.4 [percent] compared to $130.9 million in 2013.
Operating Revenues – For the fiscal year ended December 31, 2014, the State Bar’s total operating and non-operating revenues were $140 million. Total operating revenues for all programs for 2014 were $137.9 million, up by $1.8 million or 1.3 [percent] compared to $136.2 million last year. The increase is due to a $3.5 million increase in membership revenue, partially offset by a $1.8 million decrease in the AB 145 [(Committee on Budget, Chapter 75, Statutes of 2005)] filing fees in the Equal Access Fund program. The increase in membership revenue is due largely to higher membership revenues received as a result of the $10 increase in the optional contribution to legal services and overall growth in the membership due to new admittees. Total non-operating revenues were $2.1 million, up by $0.8 million or 61.5 [percent] from $1.3 million last year.
Operating Expenses – For fiscal year 2014, the State Bar’s total operating expenses were $132.8 million, down by $8.7 million or 6.1 [percent] compared to $141.5 million last year. The decrease is a due to a decline of $9 million in IOLTA grant distribution as a result of the program restructuring explained above and a $2.2 million decrease in the Client Security Fund application payouts. These decreases are partially offset by higher operating costs from the new L.A. facility and higher personnel costs from the Bar’s implementation of the 2014 MOU. (State Bar, 2014 Financial Statement and Independent Auditor’s Report of the State Bar of California (Apr. 30, 2015) pgs. 5-6, 8.)
7. Update on Strategic Plan
Under existing law, the Board of Trustees is required to complete and implement a five-year strategic plan, updated every two years, and submit a report each year on measures taken to implement that plan. The most recent report, submitted by the current president of the State Bar on February 13, 2015, contained various updates, including the following items of particular interest to this Committee:
Legal Services - The State Bar has been very active in support of enhanced funding for legal services and administers the following funds: Interest on Lawyers’ Trust Accounts (IOLTA) grants; Equal Access Fund (EAF); Justice Gap Fund; State Bar Dues voluntary contribution to legal services; and the Attorney General National Mortgage Settlement Fund Grants. In 2014-2015, annual grants went to almost 100 non-profit legal aid organizations, including direct legal services providers and support centers that collectively provide services in all 58 California counties. Legislatively, the Bar successfully supported an increase, beginning in 2015, to $40 of non-mandatory (opt out) member dues earmarked for legal services funding. The State Bar’s Annual dues bill also includes a voluntary check-off box and a suggested donation amount of $100 contribution to the Justice Gap Fund. In 2014, Justice Gap funds were supplemented with an additional line-item on the attorney member dues bill enabling attorneys to contribute $30 to the fund through an opt-out check-off. The donations received through the Justice Gap Fund are combined with revenue from IOLTA and distributed on a formulaic basis to all California legal aid organizations that qualify for grant funding.
In 2014, the $30 voluntary check-off box on the Annual dues bill for legal services and the suggested donation amount of $100 contribution to the Justice Gap Fund, allowed the State Bar to raise over $5.5 million [in] additional support for legal services programs. In addition to the funds discussed above, in 2013-2014, the State Bar administered over $10.4 million in grants from the Attorney General National Mortgage Settlement Fund. The State Bar distributed over $6 million of these one-time grants to legal aid organizations helping California families deal with the foreclosure crisis. In addition to supporting increased funding for legal services, the State Bar is working to find other ways to expand access to courts and lawyers for low and moderate income Californians.
The Task Force on Civil Justice Strategies, chaired by then State Bar President Luis Rodriguez and co-chaired by myself was charged with analyzing the “justice gap,” evaluating the role of the legal profession in addressing the crisis, seeking broad input from groups working in this area, studying creative solutions being considered in other states and countries, and developing an action plan to fill the justice gap and achieve true “access to justice” in California. The Task Force on Civil Justice Strategies met seven times in 2014, focusing on innovative strategies to address California’s “justice gap.” A report is forthcoming.
Immigration reform - In the wake of the Obama administration’s November 2014 announcement of a plan to provide administrative relief and work permits to as many as 3.7 million undocumented parents of U.S. citizens and legal permanent residents, as well as an additional 300,000 young immigrants who were brought to the country illegally as children, the State Bar took unprecedented proactive action to help prevent a potential explosion of misconduct and client abuse in the area of immigration reform fraud. The State Bar has continued to monitor complaints received by the Office of the Chief Trial Counsel since the effective date of AB 1159 [(Gonzalez, Chapter 574, Statutes of 2013)]to identify complaints that the office has opened against attorneys related to immigration work. Additionally, in the area of external relations, the State Bar has taken proactive steps to seek out those who continue to exploit immigrants by ignoring AB 1159:
Developed an External Relations & Outreach Program to targeted partnerships, in order to advance the directive of AB 1159;
Conducted town halls with community organizations, to provide information about the protections and resources available to the immigrant community;
Created an “immigration hotline” telephone number and tracked the number of calls which are directed to the Intake Unit for handling and will track the number of complaints that allege fraudulent acts related to an immigration matter, including violations of AB 1159; and
Issued media releases alerting consumers on immigration related issues.
Public Protection - In the area of expanding external relations to enable a more pro-active approach to public protection, the Bar organized 11 town hall meetings throughout the State in conjunction with other consumer protection agencies and members of state and local government, which focused on consumer fraud issues for Seniors, Veterans, and the general public. (State Bar, Measures To Implement Strategic Plan and To Enhance and Ensure Public Protection (Feb. 13, 2015) pg. 4.)
Support: None Known
Opposition: None Known
HISTORY
Source: State Bar of California
Related Pending Legislation: SB 134 (Hertzberg, 2015) would authorize the State Bar of California to collect, in conjunction with its annual membership dues, voluntary fees for the support of the Public Interest Attorney Loan Repayment Program. SB 134 is currently on the Senate Floor.
Prior Legislation:
AB 2746 (Committee on Judiciary, Chapter 429, Statutes of 2014)
SB 345 (Evans, Chapter 681, Statutes of 2013)
AB 2685 (Committee on Judiciary, Chapter 348, Statutes of 2012)
SB 163 (Evans, Chapter 417, Statutes of 2011)
AB 2764 (Committee on Judiciary, Chapter 476, Statutes of 2010)
SB 55 (Corbett, Chapter 2, Statutes of 2010)
SB 641 (Corbett, 2009) was vetoed by the Governor.
AB 3049 (Committee on Judiciary, Chapter 165, Statutes of 2008)
SB 686 (Corbett, Chapter 474, Statutes of 2007)
AB 1529 (Jones, Chapter 341, Statutes of 2005)
AB 145 (Committee on Budget, Chapter 75, Statutes of 2005)
SB 1490 (Committee on Judiciary, Chapter 384, Statutes of 2004)
AB 1708 (Committee on Judiciary, Chapter 334, Statutes of 2003)
SB 352 (Kuehl, Chapter 24, Statutes of 2001)
SB 1367 (Schiff, Chapter 118, Statutes of 2000)
SB 144 (Schiff, Chapter 342, Statutes of 1999)
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1 The State Bar notes that the Board of Trustees can theoretically have 20 members as follows: “A president may continue to serve an extra year if his or her term as one of the appointed or elected members has expired. He or she would become the 20th board member.”
Bill Author
Bill Co-Author(s):