AB-285 UPDATE

January 1, 2016

The bill has passed. Today's law, as amended:

SECTION 1.

6400.

(b) “Unlawful detainer claim” means a proceeding, filing, or action affecting rights or liabilities of any person that arises under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3 of the Code of Civil Procedure and that contemplates an adjudication by a court.

(c) “Legal document assistant” means:

(1) Any person who is not exempted under Section 6401 and who provides, or assists in providing, or offers to provide, or offers to assist in providing, for compensation, any self-help service to a member of the public who is representing himself or herself in a legal matter, or who holds himself or herself out as someone who offers that service or has that authority. This paragraph does not apply to any individual whose assistance consists merely of secretarial or receptionist services.

(2) A corporation, partnership, association, or other entity that employs or contracts with any person not exempted under Section 6401 who, as part of his or her responsibilities, provides, or assists in providing, or offers to provide, or offers to assist in providing, for compensation, any self-help service to a member of the public who is representing himself or herself in a legal matter or holds himself or herself out as someone who offers that service or has that authority. This paragraph does not apply to an individual whose assistance consists merely of secretarial or receptionist services.

(d) “Self-help service” means all of the following:

(1) Completing legal documents in a ministerial manner, selected by a person who is representing himself or herself in a legal matter, by typing or otherwise completing the documents at the person’s specific direction.

(2) Providing general published factual information that has been written or approved by an attorney, pertaining to legal procedures, rights, or obligations to a person who is representing himself or herself in a legal matter, to assist the person in representing himself or herself. This service in and of itself, shall not require registration as a legal document assistant.

(3) Making published legal documents available to a person who is representing himself or herself in a legal matter.

(4) Filing and serving legal forms and documents at the specific direction of a person who is representing himself or herself in a legal matter.

(e) “Compensation” means money, property, or anything else of value.

(f) A legal document assistant, including any legal document assistant employed by a partnership or corporation, shall not provide any self-help service for compensation, unless the legal document assistant is registered pursuant to Section 6402.

(g) A legal document assistant may not provide any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms, or strategies. A legal document assistant shall complete documents only in the manner prescribed by paragraph (1) of subdivision (d).

SEC. 2.

6401.7.

SEC. 3.

6402.

SEC. 4.

6402.2.

SEC. 5.

6403.

(1) Name, age, address, and telephone number.

(2) Whether he or she has been convicted of a felony, or of a misdemeanor under Section 6126 or 6127, or found liable under Section 6126.5.

(3) Whether he or she has been held liable in a civil action by final judgment or entry of a stipulated judgment, if the action alleged fraud, the use of an untrue or misleading representation, or the use of an unfair, unlawful, or deceptive business practice.

(4) Whether he or she has ever been convicted of a misdemeanor violation of this chapter.

(5) Whether he or she has had a civil judgment entered against him or her in an action arising out of the applicant’s negligent, reckless, or willful failure to properly perform his or her obligation as a legal document assistant or unlawful detainer assistant.

(6) Whether he or she has had a registration revoked pursuant to Section 6413.

(7) If the application is for a renewal of registration, a statement by the applicant that he or she has completed the legal education courses required by Section 6402.2.

(b) The application for registration of a natural person shall be accompanied by the display of personal identification, such as a California driver’s license, birth certificate, or other identification acceptable to the county clerk to adequately determine the identity of the applicant.

(c) The application for registration of a partnership or corporation shall contain all of the following statements about the applicant:

(1) The names, ages, addresses, and telephone numbers of the general partners or officers.

(2) Whether the general partners or officers have ever been convicted of a felony, or a misdemeanor under Section 6126 or 6127, or found liable under Section 6126.5.

(3) Whether the general partners or officers have ever been held liable in a civil action by final judgment or entry of a stipulated judgment, if the action alleged fraud, the use of an untrue or misleading representation, or the use of an unfair, unlawful, or deceptive business practice.

(4) Whether the general partners or officers have ever been convicted of a misdemeanor violation of this chapter.

(5) Whether the general partners or officers have had a civil judgment entered against them in an action arising out of a negligent, reckless, or willful failure to properly perform the obligations of a legal document assistant or unlawful detainer assistant.

(6) Whether the general partners or officers have ever had a registration revoked pursuant to Section 6413.

(7) If the application is for a renewal of registration, a statement by the applicant that the individuals performing legal document assistant or unlawful detainer assistant services have completed the legal education courses required by Section 6402.2.

(d) The applications made under this section shall be made under penalty of perjury.

(e) The county clerk shall retain the application for registration for a period of three years following the expiration date of the application, after which time the application may be destroyed if it is scanned or if the conditions specified in Section 26205.1 of the Government Code are met. If the application is scanned, the scanned image shall be retained for a period of 10 years, after which time that image may be destroyed and, notwithstanding Section 26205.1 of the Government Code, no reproduction thereof need be made or preserved.

SEC. 6.

6404.

SEC. 7.

6405.

(2) An application for a certificate of registration by a partnership or corporation shall be accompanied by a bond executed by a corporate surety qualified to do business in this state and conditioned upon compliance with this chapter in the following amount, based on the total number of legal document assistants and unlawful detainer assistants employed by the partnership or corporation:

(A) Twenty-five thousand dollars ($25,000) for one to four assistants.

(B) Fifty thousand dollars ($50,000) for five to nine assistants.

(C) One hundred thousand dollars ($100,000) for 10 or more assistants. An application for a certificate of registration by a person employed by a partnership or corporation shall be accompanied by a bond of twenty-five thousand dollars ($25,000) only if the partnership or corporation has not posted a bond in the amount required by this subdivision.

(3) If a partnership or corporation increases the number of assistants it employs above the number stated in its application for a certificate of registration, the partnership or corporation shall promptly increase the bond to the applicable amount in subparagraphs (B) or (C) of paragraph (2) based on the actual number of assistants it employs, and shall promptly submit the increased bond to the county clerk.

(4) The bond may be terminated pursuant to Section 995.440 of, and Article 13 (commencing with Section 996.310) of Chapter 2 of Title 14 of Part 2 of, the Code of Civil Procedure.

(b) The county clerk shall, upon filing of the bond, deliver the bond forthwith to the county recorder for recording. The recording fee specified in Section 27361 of the Government Code shall be paid by the registrant. The fee may be paid to the county clerk who shall transmit it to the recorder.

(c) The fee for filing, canceling, revoking, or withdrawing the bond is seven dollars ($7).

(d) The county recorder shall record the bond and any notice of cancellation, revocation, or withdrawal of the bond, and shall thereafter mail the instrument, unless specified to the contrary, to the person named in the instrument and, if no person is named, to the party leaving it for recording. The recording fee specified in Section 27361 of the Government Code for notice of cancellation, revocation, or withdrawal of the bond shall be paid to the county clerk, who shall transmit it to the county recorder.

(e) In lieu of the bond required by subdivision (a), a registrant may deposit the amount required by subdivision (a) in cash with the county clerk.

(f) If the certificate is revoked, the bond or cash deposit shall be returned to the bonding party or depositor subject to subdivision (g) and the right of a person to recover against the bond or cash deposit under Section 6412.

(g) The county clerk may retain a cash deposit until the expiration of three years from the date the registrant has ceased to do business, or three years from the expiration or revocation date of the registration, in order to ensure there are no outstanding claims against the deposit. A judge may order the return of the deposit prior to the expiration of three years upon evidence satisfactory to the judge that there are no outstanding claims against the deposit.

(h) The bond required by this section shall be in favor of the State of California for the benefit of any person who is damaged as a result of the violation of this chapter or by the fraud, dishonesty, or incompetency of an individual, partnership, or corporation registered under this chapter. The bond required by this section shall also indicate the name of the county in which it will be filed.

SEC. 8.

6406.

(b) Except as provided in subdivisions (d) to (f), inclusive, an applicant shall be denied registration or renewal of registration if the applicant has been any of the following:

(1) Convicted of a felony, or of a misdemeanor under Section 6126 or 6127, or found liable under Section 6126.5.

(2) Held liable in a civil action by final judgment or entry of a stipulated judgment, if the action alleged fraud, or the use of an untrue or misleading representation, or the use of an unfair, unlawful, or deceptive business practice.

(3) Convicted of a misdemeanor violation of this chapter.

(4) Had a civil judgment entered against him or her in an action arising out of the applicant’s negligent, reckless, or willful failure to properly perform his or her obligation as a legal document assistant or unlawful detainer assistant.

(5) Had his or her registration revoked pursuant to Section 6413.

(c) If the county clerk finds that the applicant has failed to demonstrate having met the requisite requirements of Section 6402, 6402.1, or 6402.2, or that any of the paragraphs of subdivision (b) apply, the county clerk, within three business days of submission of the application and fee, shall return the application and fee to the applicant with a notice to the applicant indicating the reason for the denial and the method of appeal.

(d) The denial of an application may be appealed by the applicant by submitting, to the director, the following:

(1) The completed application and notice from the county clerk specifying the reasons for the denial of the application.

(2) A copy of any final judgment or order that resulted from any conviction or civil judgment listed on the application.

(3) Any relevant information the applicant wishes to include for the record.

(e) The director shall order the applicant’s certificate of registration to be granted if the director determines that the issuance of a certificate of registration is not likely to expose consumers to a significant risk of harm based on a review of the application and any other information relating to the applicant’s unlawful act or unfair practice described in paragraphs (1) to (5), inclusive, of subdivision (b). The director shall order the applicant’s certificate of registration to be denied if the director determines that issuance of a certificate of registration is likely to expose consumers to a significant risk of harm based on a review of the application and any other information relating to the applicant’s unlawful act or unfair practice described in paragraphs (1) to (5), inclusive, of subdivision (b). The director shall send to the applicant and the county clerk a written decision listing the reasons registration shall be granted or denied within 30 days of the submission of the matter.

(f) If the director orders that the certificate of registration be granted, the applicant may resubmit the application, with the appropriate application fee and the written decision of the director. The county clerk shall grant the certificate of registration to the applicant within three business days of being supplied this information.

SEC. 9.

6407.

(b) The identification card shall be a card not less than three and one-quarter by two inches, and shall contain at the top, the title “Legal Document Assistant” or “Unlawful Detainer Assistant,” as appropriate, followed by the registrant’s name, address, registration number, date of expiration, and county of registration. It shall also contain a photograph of the registrant in the lower left corner. The identification card for a partnership or corporation registration shall be issued in the name of the partnership or corporation, and shall not contain a photograph. The front of the card, above the title, shall also contain the following statement in 12-point boldface type: “This person is not a lawyer.” The front of the card, at the bottom, shall also contain the following statement in 12-point boldface type: “The county clerk has not evaluated this person’s knowledge, experience, or services.”

SEC. 10.

6408.

SEC. 11.

6409.1.

SEC. 12.

6410.

(b) The written contract shall include all of the following provisions:

(1) The services to be performed.

(2) The costs of the services to be performed.

(3) The contact information of the county clerk’s office for the county in which the legal document assistant or unlawful detainer assistant is registered, including the address, phone number, and, if available, Internet Web site.

(4) There shall be printed on the face of the contract in 12-point boldface type a statement that the legal document assistant or unlawful detainer assistant is not an attorney and may not perform the legal services that an attorney performs.

(5) The contract shall contain a statement in 12-point boldface type that the county clerk has not evaluated or approved the registrant’s knowledge or experience, or the quality of the registrant’s services.

(6) The contract shall contain a statement in 12-point boldface type that the consumer may obtain information regarding free or low-cost representation through a local bar association or legal aid foundation and that the consumer may contact local law enforcement, a district attorney, or a legal aid foundation if the consumer believes that he or she has been a victim of fraud, the unauthorized practice of law, or any other injury.

(7) The contract shall contain a statement in 12-point boldface type that a legal document assistant or unlawful detainer assistant is not permitted to engage in the practice of law, including providing any kind of advice, explanation, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, selection of forms, or strategies.

(c) The contract shall be written both in English and in any other language comprehended by the client and principally used in any oral sales presentation or negotiation leading to execution of the contract. The legal document assistant or the unlawful detainer assistant is responsible for translating the contract into the language principally used in any oral sales presentation or negotiation leading to the execution of the contract.

(d) A written contract entered into on or after January 1, 2016, shall contain a statement that, pursuant to Section 6409.1, the venue for an action arising out of a dispute between a legal document assistant or unlawful detainer assistant and his or her client shall be the county in which the client has his or her primary residence.

(e) Failure of a legal document assistant or unlawful detainer assistant to comply with subdivisions (a), (b), (c), and (d) shall make the contract or agreement for services voidable at the option of the client. Upon the voiding of the contract, the legal document assistant or unlawful detainer assistant shall immediately return in full any fees paid by the client.

(f) In addition to any other right to rescind, the client shall have the right to rescind the contract within 24 hours of the signing of the contract. The client may cancel the contract by giving the legal document assistant or the unlawful detainer assistant any written statement to the effect that the contract is canceled. If the client gives notice of cancellation by mail addressed to the legal document assistant or unlawful detainer assistant, with first-class postage prepaid, cancellation is effective upon the date indicated on the postmark. Upon the voiding or rescinding of the contract or agreement for services, the legal document assistant or unlawful detainer assistant shall immediately return to the client any fees paid by the client, except fees for services that were actually, necessarily, and reasonably performed on the client’s behalf by the legal document assistant or unlawful detainer assistant with the client’s knowing and express written consent. The requirements of this subdivision shall be conspicuously set forth in the written contract.

SEC. 13.

6410.5.

(1) The identity of the person making the solicitation.

(2) The trade name of the person represented by the person making the solicitation, if any.

(3) The kind of services being offered for sale.

(4) The statement: “I am not an attorney” and, if the person offering legal document assistant or unlawful detainer assistant services is a partnership or a corporation, or uses a fictitious business name, “[name] is not a law firm. I/we cannot represent you in court, advise you about your legal rights or the law, or select legal forms for you.”

(5) The county in which the legal document assistant or unlawful detainer assistant is registered and his or her registration number.

(6) The expiration date of the legal document assistant’s or unlawful detainer assistant’s current registration period.

(b) After the legal document assistant or unlawful detainer assistant makes the oral statements required pursuant to subdivision (a), and before the legal document assistant or unlawful detainer assistant enters into a contract or agreement for services or accept any compensation, the legal document assistant or unlawful detainer assistant shall provide the prospective client with a “Notice to Consumer” set forth below. After allowing the prospective client time to read the notice, the legal document assistant or unlawful detainer assistant shall ask the prospective client to sign and date the notice. If the first contact is not in person, the legal document assistant or unlawful detainer assistant shall provide the notice to the prospective client at the first in-person meeting or mail the notice to the prospective client before entering into a contract or agreement for services or accepting any compensation. The notice shall be set forth in black, bold, 12-point type on a separate, white, 81/2 by 11 inch sheet of paper which contains no other print or graphics, and shall be in the following form. The notice shall contain only the appropriate name or other designation from those indicated in brackets below. At the time a prospective client signs the notice and before that prospective client is offered any contract or agreement for signature, the legal document assistant or unlawful detainer assistant shall give the prospective client a clearly legible copy of the signed notice. A legal document assistant or unlawful detainer assistant shall not ask or require a prospective client or a client to sign any other form of acknowledgment regarding this notice.

(c) The legal document assistant or unlawful detainer assistant shall be responsible for translating, if necessary, the “Notice to Consumer” required pursuant to subdivision (b) into the language principally used in any oral sales presentation or negotiation.

SEC. 14.

22355.

(b) The temporary and permanent identification cards shall be not less than 31/4 inches by 2 inches and shall contain at the top the title, “Registered Process Server,” followed by the registrant’s name, address, registration number, date of expiration, and county of registration. In the case of a natural person, it shall also contain a photograph of the registrant in the lower left corner. The identification card for a partnership or corporation registration shall be issued in the name of the partnership or corporation, and shall not contain a photograph.

SEC. 15.

22457.

(b) The identification card shall be a card not less than three and one-quarter inches by two inches, and shall contain at the top the title, “Professional Photocopier” followed by the registrant’s name, address, registration number, date of expiration, and county of registration. It shall also contain a photograph of the registrant in the lower left corner. The identification card for a partnership or corporation registration shall be issued in the name of the partnership or corporation, and shall not contain a photograph. The identification card for an employee of a professional photocopier or a partnership or corporation shall contain a photograph of the employee in the lower left corner.

(c) The identification card for an employee of a professional photocopier or a partnership or corporation shall be issued in the name of the employee and include “Employee of: [insert name of the professional photocopier or the partnership or corporation].”

SEC. 16.

However, if the Commission on State Mandates determines that this act contains other costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.

Assembly Bill 285 - Update

By Ian Duncan, CALDA President

August 28, 2015

I'm happy to announce the AB 285 passed the Senate yesterday in a unanimous vote.  This concludes its journey through the Legislature.  The last step is for the Governor to sign the bill, after which it becomes law.  He has until October 11 to do this.  I keep everyone informed.

CALDA sponsored AB 285 in order to update the statutory regulations that govern our industry.  The would eliminate some of the onerous rules that have existed since the passage of the Rosenthal Bill, such as putting our registration expiration date on all of our materials, the requirement that some LDAs must follow to register in multiple counties (especially in small counties), and more easily keeping our registration numbers after periods of non-renewal. 

Most positively, if the bill passes, Continuing Legal Education will now be mandatory for all LDAs as a condition for re-registering. 

The tradeoffs in the bill are few.  The bill contains a sunset clause, as does much new legislation, and we already have commitments from various supporters and from Assemblyman Gallagher's office to work to repeal the sunset when the time comes two to three years from now.  The issue of the sunset may well be moot anyway by then, as we are certainly not stopping and resting on our laurels with this legislation.  The bill also adds a information about our registration to the mandatory "Notice to Consumer". 

We will have a discussion at the Conference about the changes to our industry made by this bill so that you may be informed.  But, perhaps more importantly, we will also have a discussion on the future of our industry and what further changes the membership would like to see happen at the state level. 

Please sign up for the LA Conference now so that you may be a part of these important changes regarding our industry.

Thank you for your kind support throughout the year.

Assembly Bill 285 - Update

By Regina Van Hecke, CALDA Legislative Chair

July 1, 2015

Assembly bill 285, sponsored by CALDA and introduced by Assemblyman James Gallagher (R-Butte County), makes important changes to the registration and practice requirements for Legal Document Assistants.  These changes to current law will help to modernize the profession and bring its requirements in line with similar businesses and professions.  

Mandatory Continuing Legal Education

AB 285 ensures the quality of service provided by LDAs by requiring the completion of fifteen hours of continuing education prior to registration renewal every two years. This will help LDAs keep current with the constant updates and changes to legal documents, allowing them to better serve their clients.   This will also strengthen CALDA because we are an approved provider of CLE.

Secondary Registration Will Be Eliminated

The confusing system of secondary registration will be eliminated.  Under current law, LDAs must register with the County Clerk in any county in which they provide services.  Given that the modern-day widespread use of the internet allows businesses to easily advertise and provide services in many locations, AB 285 allows LDAs to practice statewide while registering only in their primary county of practice and in any county in which they maintain a branch office. 

No More Need to List Registration Date on Materials and Work Product

Currently we need to list our registration expiration date on all of our materials, including stationery, business cards, and work product.  AB 285 eliminates this requirement, which will allow us to avoid the high cost of repurchasing all of our materials every time our registration is renewed.  The bill continues to protect consumers by requiring that all registration information, including the registration expiration date, be provided to clients upon initial contact as well as being posted on the LDA’s website.  As a concession, we will need to include our registration information on the written Notice to Consumer.

Keep Same Registration Number after Periods of Non-Renewal

Whereas the Business and Professions Code currently requires that a new registration number be assigned if renewal is late, AB 285 allows LDAs to keep their original registration numbers after periods of non-renewal provided the lapse in registration is no more than three years. This allows LDAs who have had periods of non-renewal to be able to continue using the supplies that they already have.  

Current Status:  The bill has passed the Assembly, and is currently in the Senate.  We will have our hearing in the Senate Judiciary Committee on July 14.  After that hearing, the full Senate will vote and then we will anxiously await the Governor’s signature.