BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 1024 (Gonzalez)
As Amended September 6, 2013
Hearing Date: September 11, 2013
Fiscal: Yes
Urgency: No
TH
SUBJECT
Attorneys: Admission to Practice
DESCRIPTION
This bill would explicitly authorize the Supreme Court to admit
an applicant who is not lawfully present in the United States as
an attorney at law in all the courts of this state upon
certification by the State Bar examining committee that the
applicant has fulfilled the requirements for admission to
practice law.
BACKGROUND
In 1996, Congress enacted the Personal Responsibility and Work
Opportunity Reconciliation Act (PRWORA), Pub. L. No. 104-193,
110 Stat. 2105 (Aug. 22, 1996). PRWORA, among other things,
prohibits certain categories of individuals not lawfully present
in the United States from receiving certain public benefits,
including "any grant, contract, loan, professional license, or
commercial license provided by an agency of a State or local
government or by appropriated funds of a State or local
government." (8 U.S.C. Sec. 1621(c).) PRWORA provides that a
state may render "an alien who is not lawfully present in the
United States . . . eligible for any State or local public
benefit for which such alien would otherwise be ineligible . . .
through the enactment of a State law after the date of the
enactment of this Act which affirmatively provides for such
eligibility." (8 U.S.C. Sec. 1621(d).) Consistent with that
provision, this bill seeks to expressly extend eligibility to
obtain a license to practice law to individuals who are not
lawfully present in the United States.
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The Supreme Court is currently considering Sergio Garcia for
admission to practice law in the State of California. (See In
re Sergio C. Garcia on Admission, S202512, May 15, 2012.) Mr.
Garcia has been unlawfully present in the United States for
approximately 20 years, and is currently petitioning the Federal
government for an immigrant visa. During his time in the United
States, Mr. Garcia has graduated from law school, passed the
California Bar Exam, and has been found by the Committee of Bar
Examiners to have met all the necessary requirements for
admission to practice law in the State of California. However,
given his immigration status, it is an open question whether the
Supreme Court can admit Mr. Garcia to practice law. To clarify
the issue, this bill would expressly provide that the Supreme
Court may admit an applicant who is not lawfully present in the
United States as an attorney at law in all the courts of this
state upon certification by the State Bar examining committee
that the applicant has fulfilled the requirements for admission
to practice law.
CHANGES TO EXISTING LAW
Existing federal law , the Personal Responsibility and Work
Opportunity Reconciliation Act, prohibits certain categories of
individuals not lawfully present in the United States from
receiving specified public benefits, including "any grant,
contract, loan, professional license, or commercial license
provided by an agency of a State or local government or by
appropriated funds of a State or local government." (8 U.S.C.
Sec. 1621(c).)
Existing federal law provides that a state may render "an alien
who is not lawfully present in the United States . . . eligible
for any State or local public benefit for which such alien would
otherwise be ineligible . . . through the enactment of a State
law after the date of the enactment of this Act which
affirmatively provides for such eligibility." (8 U.S.C. Sec.
1621(d).)
Existing law , the State Bar Act, establishes qualifications for
individuals who seek to be certified to the Supreme Court for
admission and a license to practice law. Among other things,
applicants to the State Bar must: (1) be at least 18 years old;
(2) be of good moral character; (3) have received a juris doctor
(J.D.) degree or otherwise studied law diligently and in good
faith, as specified; (4) have passed a prescribed examination in
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professional responsibility or legal ethics; and (5) have passed
the general bar examination before they can be certified for
admission. (Bus. & Prof. Code Sec. 6060.)
Existing law states that upon certification by the examining
committee that an applicant has fulfilled the requirements for
admission to practice law, the Supreme Court may admit such
applicant as an attorney at law in all the courts of this state
and may direct an order to be entered upon its records to that
effect. (Bus. & Prof. Code Sec. 6064.)
Existing law states that every person on his admission shall
take an oath to support the Constitution of the United States
and the Constitution of the State of California, and faithfully
to discharge the duties of any attorney at law to the best of
his knowledge and ability. (Bus. & Prof. Code Sec. 6067.)
This bill would provide that upon certification by the examining
committee that an applicant who is not lawfully present in the
United States has fulfilled the requirements for admission to
practice law, the Supreme Court may admit that applicant as an
attorney at law in all the courts of this state and may direct
an order to be entered upon its records to that effect.
COMMENT
1. Stated need for the bill
The author writes:
There are currently bright, young individuals, who have worked
hard to progress in their education and have met the rigorous
requirements for obtaining a law degree and a legal license,
including passing the California Bar Exam, but due to their
immigration status are unable to fulfill their dream of
becoming a licensed attorney. Sergio Garcia is one of those
Dreamers who are currently unable to obtain a law license.
Having passed the State Bar examination and fulfilled all
other requirements, Mr. Garcia was routinely sworn into the
legal profession in 2011. Two weeks later his license was
rescinded on the basis that the Personal Responsibility and
Work Opportunity Reconciliation Act passed by Congress in 1996
prohibits undocumented immigrants from receiving professional
licenses with the use of public funds, unless state law
explicitly overrides it.
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AB 1024 is a direct response to an admission application
currently pending at the California State Supreme Court. AB
1024 would make explicit the intent of this legislature that
all individuals who meet the state law qualifications for the
practice of law in California be affirmatively eligible to
apply for and obtain a law license regardless of their
citizenship or immigration status. Specifically, AB 1024
permits the State Supreme Court to admit as an attorney any
applicant who is certified by the examining committee as
having fulfilled the requirements for admission to practice
law, notwithstanding their undocumented status. This
provision would therefore satisfy the requirements of 8 U.S.C.
§ 1621(a), to the extent that 8 U.S.C. § 1621(a) is
applicable.
The bill does not create any authorization for employment in
the United States nor does it modify or displace any
requirement for admission to practice law.
2. Regulation of the Legal Profession
The State Bar Act, codified at Business and Professions Code
Section 6000, et seq., sets out a comprehensive framework for
regulating the practice of law and the admission of attorneys in
the State of California. Among other things, the act requires
individuals applying for membership in the State Bar to be at
least 18 years old, to be of good moral character, to have
received a juris doctor (J.D.) degree or otherwise studied law
diligently and in good faith (as specified), to have passed a
prescribed examination in professional responsibility or legal
ethics, and to have passed the general bar examination. (See
Bus. & Prof. Code Sec. 6060.) The State Bar Act is
fundamentally a consumer protection measure designed to ensure
that attorneys who serve California residents meet certain
minimum qualifications and standards. A license to practice law
in the State of California serves as recognition that the
licensed individual has attained the education, demonstrated the
knowledge, and evidenced the good moral character necessary to
serve competently as an attorney in California's legal
marketplace. (See In re Martin (1962) 58 Cal.2d 133, 139
(noting the "implied representation of competency made by the
licensing of [an] attorney").)
Importantly, the State Bar Act is not a pathway to
naturalization and a license to practice law in California is
not tantamount to a work authorization. According to the
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Committee of Bar Examiners of the State of California, the
Supreme Court "currently admits non-immigrant aliens to the
practice of law in California without regard to their ability to
be legally employed as attorneys." (Opening Brief of the
Committee of Bar Examiners at 20-21, In re Sergio C. Garcia on
Admission, S202512, May 15, 2012.) While these individuals may
return home to their countries of origin, may remain here and
attempt to adjust their status, or may seek lawful permanent
residence after receiving their law licenses, the grant of a
license provides no guarantee of a pathway to lawful employment
in the United States. Whether, and to what extent, a licensee
wants to use their California law license in future employment
endeavors is wholly within the purview of each licensed
attorney, and it is their duty to ensure that they use their law
license in compliance with all applicable laws and regulations.
This bill would not disturb the existing framework for assessing
the qualifications of applicants to the State Bar, nor would it
impact the immigration and naturalization status of those
seeking a license to practice law in the State of California.
It merely clarifies that the Supreme Court may issue a law
license to any qualified applicant, regardless of their
immigration status.
3. Moral Character Requirement
In order to be certified to the Supreme Court for admission and
a license to practice law, a person must, among other things,
"be of a good moral character." (Bus. & Prof. Code Sec.
6060(b).) The Supreme Court interprets the moral character
requirement of the State Bar Act as asking whether an applicant
is "a fit and proper person to be permitted to practice law,"
and notes that "the answer to this usually turns upon whether he
[or she] has committed or is likely to continue to commit acts
of moral turpitude." (March v. Committee of Bar Examiners
(1967) 67 Cal.2d 718, 720.) Importantly, the Court has held
that "every intentional violation of the law is not, ipso facto,
grounds for excluding an individual from membership in the legal
profession." (Hallinan v. Committee of Bar Examiners, State Bar
(1966) 65 Cal.2d 447, 459.) As explained in Hallinan:
There is certain conduct involving fraud, perjury, theft,
embezzlement, and bribery where there is no question but that
moral turpitude is involved. On the other hand, because the
law does not always coincide exactly with principles of
morality there are cases that are crimes that would not
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necessarily involve moral turpitude. In such cases,
investigation into the circumstances surrounding the
commission of the act must reveal some independent act beyond
the bare fact of a criminal conviction to show that the act
demonstrates moral unfitness and justifies exclusion or other
disciplinary action by the bar.
As the United States Supreme Court emphasized in Schware v.
Board of Bar Examiners [(1957) 353 U.S. 232, 239], "[a] State
can require high standards of qualification, such as good
moral character or proficiency in its law, before it admits an
applicant to the bar, but any qualification must have a
rational connection with the applicant's fitness or capacity
to practice law. Obviously an applicant could not be excluded
merely because he was a Republican or a Negro or a member of a
particular church. Even in applying permissible standards,
officers of a State cannot exclude an applicant when there is
no basis for their finding that he [or she] fails to meet
these standards, or when their action is invidiously
discriminatory. " (Hallinan v. Committee of Bar Examiners, 65
Cal.2d at 459-460 (internal citations omitted).)
Furthermore, the California Supreme Court pronounced that "every
intentional violation of the law is not, ipso facto, grounds for
excluding an individual from membership in the legal
profession." (Hallinan, 65 Cal.2d at 459.) Accordingly,
concluding that, as a class, applicants who are not lawfully
present in the United States lack the moral fitness to serve as
attorneys in the State of California goes against California's
well-established public policy that an applicant's "good moral
character" is necessarily an individual examination. Judgments
about the moral fitness of applicants must be carried out on a
case-by-case basis. These case-by-case assessments are
currently conducted by the Committee of Bar Examiners during the
application process, and this bill would not disturb that
existing framework.
4. Ability to Represent California Clients
Individuals not lawfully present in the United States who are
admitted to the California State Bar may be automatically
disqualified from representing certain clients and taking on
some types of cases because of their immigration status. For
example, federal law may preclude attorneys not lawfully present
in the U.S. from representing others in matters before the U.S.
Citizenship and Immigration Services agency. (See e.g. In the
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Matter of Ravindra Singh Kanwal, D2009-053 (OCIJ July 8, 2009)
(respondent suspended from practice before the Immigration
Courts because he lacked authorization to work in the United
States). These attorneys may also be precluded from working for
a law firm, corporation, or public agency by operation of
federal law. (See 8 U.S.C. Sec. 1324a (prohibiting the
employment of an alien in the United States knowing the alien
lacks work authorization).)
However, the inability to represent California residents in some
legal matters does not necessarily preclude all possible uses of
a law license. Each person admitted to practice law in
California, irrespective of immigration status, is obligated to
"faithfully . . . discharge the duties of any attorney at law to
the best of his [or her] knowledge and ability." (Bus. & Prof.
Code Sec. 6067.) California attorneys have an obligation to
decline representation in matters where they cannot competently
represent the interests of their client, whether due to lack of
skill or experience, or because of an ethical or legal
restriction. (See California Rules of Professional Conduct,
Rule 3-110 (Failing to Act Competently).) This bill would not
alter this existing standard, and attorneys not lawfully present
in the United States would, like every other California
attorney, be duty bound to practice law competently and in a
manner commensurate with their legal and ethical obligations.
5. Attorney's Oath
Business and Professions Code Section 6067 requires every person
on his or her admission to the State Bar to "take an oath to
support the Constitution of the United States and the
Constitution of the State of California, and faithfully to
discharge the duties of any attorney at law to the best of his
[or her] knowledge and ability." As with questions regarding
the moral fitness of applicants to the State Bar, whether or not
any particular candidate can honestly and faithfully assent to
this oath can only be evaluated on a case-by-case basis. (See
Raffaelli v. Committee of Bar Examiners (1972) 7 Cal.3d 288, 297
("we cannot say that aliens as a class are incapable of honestly
subscribing to this oath").) According to the Committee of Bar
Examiners of the State of California, the "attorney's oath is a
forward-looking obligation imposed on the individual at the time
of his admission . . . The oath is not given to 'aliens as a
class' but to attorneys as individuals," and any applicant not
lawfully present in the United States "will have to subscribe to
it if . . . admitted." (Opening Brief of the Committee of Bar
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Examiners at 32, In re Sergio C. Garcia on Admission, S202512,
May 15, 2012.)
6. Pending Litigation
In the past, this Committee has raised concerns about bills that
interfere with pending litigation. Any such interference could
result in a direct financial windfall to a private party,
prevent a court from deciding an action based upon the laws in
place at the time the cause of action accrued, or create a
situation where the legislative branch is used to circumvent the
discretion and independence of the judicial branch.
This bill, however, does not raise the concerns normally
associated with measures that could impact pending litigation.
First, this bill would not alter any of the requirements
established by the State of California for admission to the
State Bar. Rather, it would exempt a particular class of
professional licenses from the provisions of the federal
Personal Responsibility and Work Opportunity Reconciliation Act,
an act which is unrelated to the regulation of the legal
profession. A significant amount of time, effort, and financial
resources are required to become a licensed attorney in the
State of California, and this bill would not lessen these
requirements.
Second, this bill is not retroactive and would not compromise
the independence of the judicial branch nor circumvent its
discretion to expound and interpret California law. During oral
argument on Mr. Garcia's petition, the Supreme Court clearly
indicated that it was left to the Legislature, not the courts,
to decide whether applicants who are not lawfully present in the
United States ought to be admitted to the practice of law.
Indeed, Justice Baxter characterized the Personal Responsibility
and Work Opportunity Reconciliation Act as presenting "an open
invitation" to the Legislature to permit individuals not
lawfully present in the U.S. to practice law in California.
Given the Court's strong statements that creating exemptions to
PRWORA falls within the purview of the Legislature, enactment of
this bill would not have the effect of undermining the integrity
or independence of the Judiciary.
Support : American Civil Liberties Union of California; American
Friends Service Committee; California Attorney General's Office;
California Faculty Association; California Immigrant Policy
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Center; Catholic Charities CYO; Central American Resource
Center; Chinese for Affirmative Action; Coalition for Humane
Immigrant Rights of Los Angeles; Consumer Attorneys of
California; Dolores Street Community Services; Educators for
Fair Consideration; National Center for Lesbian Rights; Pangea
Legal Services; Pomona College; United We Dream Network
Opposition : None Known
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation : AB 844 (Lara, Chapter 619, Statutes of 2011)
provides that any student, including a person without lawful
immigration status or a person who is exempt from nonresident
tuition, may serve in any capacity in student government at the
California State University or the California Community Colleges
and receive any grant, scholarship, fee waiver, or reimbursement
for expenses that is connected with that service to the full
extent consistent with federal law. This bill also eliminated
the requirement that a nonvoting student member of a community
college district governing board be a resident of California.
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