TO: CALDA Membership

FROM: CALDA Board of Directors

RE: STATUS UPDATE ON CALDA'S LEGISLATIVE EFFORTS TO PROTECT THE LDA PROFESSION

DATE: AUGUST 29, 2022 

Legal challenges to State Bar control:

AB 2958 is the Bar’s attorney Bar dues bill for two years, or until the bar improves its disciplinary system, which would place a hold on any spending by the Bar on programs like the paraprofessional program. The question and logical assumption here is that if the Bar is restricted to this spending limitation then by default it should not be able to pursue regulating LDAs. At this time, our Lobbyist Matt Siverling is reviewing the status of this bill.

The Attorney General: Seeking opinion from the California Attorney General to the effect that the State Bar of California does not have the authority under the Constitution of the State of California to regulate any group other than attorneys licensed by the State Bar of California; namely, that the Bar has no domain over Legal Document Assistants.

The Department of Justice: Seeking position letter from US Dept of Justice and Federal Trade Commission directed to State of California Bar to the effect that the State Bar is not compliant with the US Supreme Court case of North Carolina State Board of Dental Examiners v. Federal Trade Commission, 135 S.Ct. 1101 (2015), in that the regulation of LDAs by the State Bar may have an anti-competitive effect on the public .

The State Bar wants LDAs regulated.  We welcome appropriate regulation, just not by the State Bar which continues its antipathy toward LDAs.  Our attempts to work with the Bar on sensible regulation have been met with the sentiment that we agree to coming under their control, and we’ll negotiate the specifics later.  There are approximately 480 CALDA members, but an estimated 1500 – 2000 registered LDAs in California. This total is far short of consumer need. For example, we have far fewer LDAs in California per capita, as compared to Nevada. We want to do the right thing for the consumer. We want to ensure as best we can that an LDA is trained in the discipline they offer as a service and in UPL and Ethics. 

California Business Professions Code 6400 Enhancement Proposals:

• Sunset Clause: eliminate entirely or at least extend for 5 + years
• Require background  checks/LiveScan for registration
• Statewide database of all registered California LDAs (CALDA efforts in progress)
• Expand and strengthen consumer complaint procedure to be fielded by the DCA and/or the County Clerks
• Increase MCLE requirements from 15 – 25 (additional 10 unit to be  focused on UPL/Ethics)

The foregoing might require an increase in annual registration fees for all California LDAs.

Look for calls to action from CALDA. Public relations campaign channels:

• Letters from LDA clients and other supporters
• Press releases and articles supporting LDAs and/or showing vulnerabilities or lack of capacity of the State Bar to regulate LDAs (e.g., most recent  scathing letter from the State Bar Auditor)
• Polls and surveys
• Letters to your Representatives when the bill is in legislation
• Letters to the Governor to pass our bill

TO: CALDA Membership

FROM: CALDA Board of Directors

RE:  ASSEMBLY BILL 1916: PROPOSED RENEWAL OF CALIFORNIA B & P CODE SECTION 6400

DATE: JUNE 24, 2022

Subject:  LDA enabling legislation is set to expire 12-31-2023.  Prior renewals had been routine. Not this time.

TIMELINE of actions of the CALDA Legislative Committee to date:

• 1.      Nov -Dec 2021: CALDA BOD decides to submit legislation to extend expiration of existing of LDA enabling legislation one year earlier than was previously done with the goal of eliminating the sunset clause entirely, or at least gaining a longer renewal period.

• 2.      Jan 2022:  On advice of CALDA lobbyist, after he received pushback from the Assembly Judiciary Committee that the committee was not open to outright elimination of the sunset provision, our lobbyist secured Assemblyman Philip Chen as sponsor for AB 1916, which specified a 5-year extension.

• 3.      March 2022:  Met with, Assembly Judiciary Committee Staff Legal Counsel, Nick Liedtke.  It quickly became apparent that this time around the sunset provision extension would not be smooth sailing. The Judiciary Committee legal counsel made it quite clear that we would need to be subject to a much more rigorous regulatory framework, which we soon learned meant complete control by the State Bar, as opposed to continuing to be under the supervision of the Department of Consumer Affairs, or “DCA”. 

• 4.      April 2022: Met with two former highly-placed DCA staff members (now lobbyists) to gain some insight as to the receptiveness we might encounter with DCA in an effort to make the supervision and regulation of our profession much more rigorous.

• 5.      April 2022: Met with Leah Wilson, Exec Director of the State Bar of California and her two top staff members.  Much like the March meeting with the Assembly Judiciary Legal Counsel, it quickly became apparent that this administrative group of the State Bar had already taken the position that the “logical home” for LDAs would be under the complete supervision and control of the Bar. The CALDA Legislation Committee once again did not agree with that approach, and so the discussion was to be continued at future meetings, if any.

• 6.      May 2022:  Met with Assemblyman Mark Stone, Chair of the Assembly Judiciary Committee and the Assembly Judiciary Committee Legal Counsel Nick Liedtke. CALDA Attorney Richard Lubetzky laid out for Chairman Stone many reasons CALDA believes the Bar is not the appropriate “home” for our profession. As with the previous meetings above, it became obvious that they are not open to discussing anything but a complete takeover by the State Bar.

• 7.      May 2022: Met with Senator Anna Caballero, former Director of DCA to gain some insight into our efforts to approach and work with the DCA in future LDA regulation.

• 8.      July 15 2022 (scheduled): Meet with legislative liaisons at DCA in an effort to assist them in defining and creating additional appropriate regulation of LDAs.  Detailed preparation for this meeting are underway.

• 9.      July - Dec 2022: Will continue building the case with the various stakeholders as well as creating a public awareness campaign of the importance of the LDA profession to California consumers, and its independence from the State Bar.

• 10.  December 2022: Re-submit AB 1916, as informed by the results of all these efforts.

Specific strategic projects under way to bolster the case for LDAs to remain under the purview of the DCA and not the State Bar:

• Letter submitted to California Attorney General requesting their opinion on the constitutionality the State Bar’s authority to regulate non-lawyers, i.e., LDAs.

• Requesting letter from  California’s legislatively-authorized State Bar Auditor summarizing the State Bar’s capability to regulate LDAs and whether they have the resources to do so, and if, by definition, of the State Bar’s charter, if that regulation of LDAs is a misuse of Bar resources.

•  Letter submitted to U.S. Department of Justice and Federal Trade Commission seeking their opinion on the issue to the State Bar’s regulation as being anti-competitive and therefore a potential antitrust violation.

• Formal request to the State Bar for documentation of alleged wrongdoing by LDAs.

• Background work on publication of articles favorable to the work of LDAs.

CALDA Special AB 1916 Committee Members:

Rob VanSteen, Pres.; Jim Wilroy, Vice Pres.;  Chester Ruiz, Legislative Committee Co-Chair; Elizabeth Olvera, Legislative Committee Co-Chair; Richard Lubetzsky, CALDA Legal Counsel; Matt Siverling, CALDA Lobbyist; Nancy Newlin, Past President, current Nominations & Elections Chair; Ian Duncan, Past Pres; and Helen Bellamy, Legislative Committee Member.

TO: CALDA Membership

FROM: CALDA Board of Directors

RE: STATE BAR OF CALIFORNIA PROPOSAL TO REGULATE THE LDA PROFESSION

DATE: May 17, 2022

The provisions of the California Business & Professions Code Section 6400 et seq. created our profession effective January 1, 2000.  Since then, its continued existence has been subject to a so-called “Sunset” provision requiring that new legislation be submitted and passed into law for additional periods, typically four years.  This process has been more or less “automatic” … until now.

The current enabling law will expire next year on December 31, 2023.  CALDA’s Board of Directors decided to not wait until the last possible date to submit a new bill, and submitted AB 1916 on February 9, 2022, rather than nearly a year later. This bill proposed a five-year extension.  

After 22 years of effectively and economically serving the needs of self-represented clients by LDAs, CALDA’s Board was met with a non-negotiable requirement by the Assembly Judiciary Committee that all things LDA be placed under the control of the State Bar of California.  

The thrust of this demand was the belief (with no evidence actually produced) by the State Bar and the Assembly Judiciary Committee that LDAs are essentially “unregulated” and that continuing in this manner would present substantial risks to consumers seeking our self-help legal document services.

This no-compromise position did not become absolutely clear until after many hours of collaboration by CALDA board members and CALDA legal Counsel Richard Lubetzky, as well as multiple meetings with representatives of both the State Bar and the Assembly Judiciary Committee.

Since the specific provisions of exactly what the modified LDA legislation would look like under the aegis of the State Bar did not become clear until just a few days before the bill was due to be reported out of the committee (or not), the Board of Directors decided to withdraw the bill at this time.

While the Board will continue to meet with the State Bar on what the specifics of such a program would look like, we are not optimistic at this point that the State Bar will be easily convinced to relent on the fundamental premise that LDAs should be under their domain.

The following are some of the main features of the State Bar proposal to date:

• 1.      Transfer of all regulation of LDAs from the CA Department of Consumer Affairs (DCA) to the State Bar of California

• 2.      Revised and additional disclosures and registration procedures

• 3.      Fingerprinting and background check required for registration

• 4.      Completely revised procedure for disciplinary sanctions, fines, etc.

• 5.      LDA client contract modifications

For more details on the proposal from the State Bar of California, please refer to the following linked memo. Special thanks to Elizabeth Olvera for providing her excellent summary and analysis: EO memo