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. (more) AB 1024 (Gonzalez) Page 2 of ? 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 AB 1024 (Gonzalez) Page 3 of ? 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. AB 1024 (Gonzalez) Page 4 of ? 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 AB 1024 (Gonzalez) Page 5 of ? 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 AB 1024 (Gonzalez) Page 6 of ? 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 AB 1024 (Gonzalez) Page 7 of ? 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 AB 1024 (Gonzalez) Page 8 of ? 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 AB 1024 (Gonzalez) Page 9 of ? 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. **************