CALIFORNIA ASSEMBLY BILL AB 888

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1 CALIFORNIA ASSEMBLY BILL AB 888 Clifford C. Smith * I. INTRODUCTION As a paralegal who is a proponent of global access to justice, I am pleased to provide my comments on AB 888 regarding the State Bar of California on enforcement actions. First, if adopted, it would create a broad rule to target non-lawyers offering a variety of services that benefit consumers. In turn, it will likely reduce competition resulting in consumers paying more and reducing options for competitive services. Second, the introduction of AB 888 comes at a time when the State Bar is considering the licensing of legal technicians that would leave consumers with little choice but to accept either higher priced lawyer fees; or else middle range fees from legal technicians with few options in between. Finally, enforcing regulations against Immigration Consultants would be operating in a field of law that Congress intends the federal government to operate in, thus any state law directed to ICs would be preempted. II. UNAUTHORIZED PRACTICE OF LAW AB 888 would amend section 17206, while adding section 6126, to the Business and Professions Code, in connection with the State Bar of California enforcement of unauthorized practice of law (UPL). UPL came to the forefront in California during the 1980s-1990s, when the California Public Protection Committee was appointed by the State Bar to investigate public harm from non-lawyer legal services. Much to the astonishment of the organized bar it concluded the state UPL laws should be repealed and that legal technicians should be allowed to offer a range of limited legal services, on the condition legal technicians register and inform clients that they were not lawyers. 1 Thereafter, a commission on Legal Technicians was tasked with restudying the issue and largely agreed with the results of its predecessors and recommended that non-lawyers be authorized by the California Supreme Court to deliver legal services in several major areas, as well as under the terms of a licensing scheme that would be supervised by an independent state agency. 2 However, the State Bar chose not to follow those recommendations. * Clifford holds credentials in advanced paralegal applications, litigation and research. He is also a graduate of Duke Continuing Studies, UCLA Extension and Ashworth College. 1 Ralph Warner, Catherine Jermany and Stephen Elias. The Independent Paralegal s Handbook, 6 th ed., Berkeley: Nolo (2006) at ch. 14/8. 2 Id. at ch. 14/9 1

2 Considered by many an authority on UPL, Stanford law professor Deborah Rhode has concluded that most UPL complaints brought against non-lawyers are from members of the bar and not consumers. 3 And, in a 1995 report, the California State Bar s Commission on Legal Technicians found that 76% percent of consumers were satisfied with the assistance received from independent paralegals, as compared to lawyers who received a 67% rating. 4 Numerous studies have shown that non-lawyers provide a beneficial service to consumers. 5 III. DISCUSSION A. AB 888 Would Unjustly Target Non-Lawyers and Stifle Competition AB 888 provides a financial incentive for the State Bar to target non-lawyers who provide competitively priced services to consumers. It is well settled that consumers benefit from competition that ultimately results in lower prices. 6 Here, AB 888 is excessively broad and would unjustly target non-lawyers that would likely reduce competition. 7 In turn, consumers would have to pay higher prices for routine services, which often do not require the skills of a lawyer. It would also create a new class of non-lawyer criminals, which would disrupt lives, jobs, families and place unnecessary demands on an already overloaded California judicial system. Because of the excessively broad scope of AB 888, it would also ensnare other potential victims, such as paralegals and legal document assistants, who are already trained in law and required to possess law related credentials. 8 Accordingly, AB 888 should be scrapped because it would unjustly target non-lawyers and stifle competition. 3 Deborah L. Rhode. "Policing the Professional Monopoly: A Constitutional and Empirical Analysis of Unauthorized Practice Prohibitions," 34 Stanford Law Review 1 (1981) (arguing that [a]lthough the organized bar has often suggested that the campaign against lay practice arose as a result of a public demand, the consensus among historians is to the contrary. ). 4 See STATE BAR OF CALIFORNIA, COMMISSION ON LEGAL TECHNICIANS REPORT 5 (1990). 5 See generally, Recommendation 86-1, Nonlawyer Assistance and Representation, 1 C.F.R (1986), reprinted in ADMINISTRATIVE CONFERENCE OF THE UNITED STATES, RECOMMENDATIONS AND REPORTS 3 (1986); ABA COMM N ON NONLAWYER PRACTICE, NONLAWYER ACTIVITY IN LAW-RELATED SITUATIONS, A REPORT WITH RECOMMENDATIONS (1995) ; and Joi Pierce Cregler, The Role of Independent Paralegals in Improving the Quality and Delivery of Legal Services, May 2002, at <http://www.law.harvard.edu/academics/clinical/bellow-sacks/>. 6 National Society of Professional Engineers v. United States, 435 U.S. 679, 695 (1978) (quoting Standard Oil Co. v. FTC, 340 U.S. 231, 248 (1951)). 7 Both the FTC and DOJ have been active in issuing joint advocacy letters to bar associations that target nonlawyers in order to promote free and unfettered competition in all sectors of the economy. 8 See generally, CAL. BUS. & PROF.CODE 6450, et seq (paralegals) and BUS. & PROF CODE 6400, et seq. (LDAs). 2

3 B. AB 888 Is Being Introduced To Prep The Market For Legal Technicians To The Detriment of Non-Lawyer Competition. AB 888 comes at an opportune time when the State Bar of California is considering the licensing of legal technicians who would offer limited legal services to the public. 9 In turn, it would create two avenues for legal services: the higher priced lawyer avenue at $300 per hour; or the Baltic avenue option of $100 per hour for the legal technician. Regardless of what avenue a consumer embarks on, it will be detrimental to working people earning $15 to $25 per hour, since they still won t be able to afford legal services. Arguably, the licensing of legal technicians would create another layer of regulation likely to drive up costs for legal services. It makes little sense when there are already thousands of trained paralegals and legal document assistance in California ready to provide limited legal services, thus eliminating another layer of regulation. Paralegals are already trained in substantive law, procedural law, legal analysis, writing and research. What we have is an existing workforce ready to go. AB 888, coupled with the push for licensing legal technicians, is a combustible combination, because it preps the market with laws that unjustly target non-lawyers. In turn, non-lawyers would be forced out of the market and to defend themselves against UPL charges, irrespective of what law-related training they have. Accordingly, AB 888 should be scrapped because it is being used to prep the market for legal technicians to the detriment of non-lawyer competition. C. Immigration Consultants Fall Under A Federal Field of Law Immigration falls under federal law. 10 Likewise, the representation of aliens falls under federal law The Limited Licensing Working Group is to explore, research and report back to the Regulation, Admissions and Discipline Oversight Committee regarding the feasibility of developing and implementing standards for creating a limited license to practice law and/or the licensing of legal technicians, for those not fully admitted to the State Bar as attorneys. From The State Bar of California website. 10 U.S. Const. art 1, 8, cl. 4, provides that Congress shall have the power to establish a uniform Rule of Naturalization. See also Chirac v. Chirac s Lessee, 15 U.S. (2 Wheat.) (1817) (Naturalization is vested exclusively in Congress to the exclusion of the states) C.F.R

4 AB 888, if adopted, would allow a state law to operate within a federal field of law exclusively occupied by federal authority. As such, it would be preempted under the Supremacy Clause. Even when state law is consistent with the objectives of a federal authority, when Congress occupies that field it supplants all state law operating within that field. 12 Here, Congress has spoken decisively on the field of immigration. 13 Moreover, there is a long standing tradition of non-lawyers representing claimants before federal agencies. This authority is derived from the Administrative Procedure Act, which falls exclusively under federal law. 14 The foundation for federal supremacy finds itself in the early case of McCulloch v. Maryland, where Chief Justice Marshall concluded: [T]he States have no power...to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government. 15 Marshall further concluded that the Union is a government of the people that emanates from them. Its powers are granted by them, and are to be exercised directly on them, and for their benefit. Here, non-lawyers from immigration consultants to paralegals represent the very power of the people espoused by Chief Justice Marshall, which naturally extends to offering services in direct competition with lawyers, absent being targeted by the state. Accordingly, AB 888 should be scrapped because it would occupy a federal field of law while also undermining the power of the people to enjoy a free and unfettered marketplace. D. AB 888 Is Symptomatic Judicial Activism That Does Not Address The Underlying Cause of UPL. AB 888, if adopted, looks to treat the symptom of unauthorized practice of law, but fails to address its underlying cause. 12 See Morales v. Transworld Airlines, Inc., 504 U.S. 374, (1992). 13 U.S. Const. art. VI, cl U.S.C. 555(b) ( A person compelled to appear in person before an agency or representative thereof is entitled to be accompanied, represented, and advised by counsel or, if permitted by the agency, by other qualified representative. A party is entitled to appear in person or by or with counsel or other duly qualified representative in an agency proceeding ) U.S. (4 Wheat.)

5 Its underlying cause is simple economics where lawyers have out-priced themselves in a market demanding affordable legal services. In turn, consumers have turned to non-lawyers, self-help legal books, legal software and internet based services. The market will continue to expand in those areas. Moreover, many of the services required by consumers are so ordinary in nature they do not necessarily require the skills of lawyers. Like the Borders bookstore chain that could not develop a competitively priced e-reader, lawyers find themselves in a similar position of being unable to develop a competitively priced model for legal services. In turn, the market has shifted towards alternative legal solutions. Accordingly, AB 888 is symptomatic judicial activism that does not address the underlying cause of UPL. IV. CONCLUSION AB 888 is seriously flawed on four major fronts: It will unjustly target non-lawyers and stifle competition. It will be used to prep the market for legal technicians to the detriment of non-lawyer competition. The enforcement of UPL directed to immigration consultants encroaches on a federal field of law and is preempted by law. It is symptomatic judicial activism that does not address the underlying cause of UPL, which is lawyers having priced themselves out of the market. For guidance on AB 888, we need only look at the previous State Bar Commission reports, which concluded UPL should be repealed. For all of the preceding reasons, AB 888 should be scrapped CCS 5

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