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SB-1194 Legal services: attorneys and immigration consultants.(2001-2002)

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Senate Bill No. 1194
CHAPTER 304

An act to amend Sections 22443.1 and 22447 of, and to add Sections 6126.5 and 22443.3 to, the Business and Professions Code, relating to legal services.

[ Filed with Secretary of State  September 19, 2001. Approved by Governor  September 18, 2001. ]

LEGISLATIVE COUNSEL'S DIGEST


SB 1194, Romero. Legal services: attorneys and immigration consultants.
(1) Existing law, the State Bar Act, prohibits a person from practicing law in California without being an active member of the State Bar, and makes it a crime for a person to hold himself or herself out as a practicing lawyer without an active membership in the State Bar.
This bill would allow a person who obtained services provided in violation of these prohibitions, or who purchased goods, services, or real or personal property in connection with services provided in violation of these prohibitions, to be awarded relief, including damages in the amount that he or she suffered loss and equitable relief, from an individual practicing law without an active State Bar membership or an individual who sold the goods, services, or property, in an enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney acting as a public prosecutor. The bill would also require the court to award reasonable attorney’s fees and costs and authorize the court to award exemplary damages to the prosecuting agency.
(2) Existing law requires a person engaging in the business or acting in the capacity of an immigration consultant to have filed a bond of $50,000 with the Secretary of State.
This bill would make it unlawful for a person to disseminate a statement indicating that he or she acts or proposes to act as an immigration consultant without having filed a bond. The bill would also delete obsolete references to making a deposit in lieu of filing a bond.
Because a violation of the provisions regarding representation as an immigration consultant without a bond would be a misdemeanor, the bill would impose a state-mandated local program.
(3) Existing law, until January 1, 2002, authorizes a person who is awarded damages in an action or proceeding for injuries caused by the acts of a person acting as an immigration consultant to recover damages from the bond and also provides that when any claim or claims against a bond have been paid, the immigration consultant shall cease to conduct any business unless and until the bond has been reinstated bringing the balance available for the payment of claims up to the minimum amount required.
This bill would extend these provisions indefinitely. (4) The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.

The people of the State of California do enact as follows:


SECTION 1.

 Section 6126.5 is added to the Business and Professions Code, to read:

6126.5.
 (a) In addition to any remedies and penalties available in any enforcement action brought in the name of the people of the State of California by the Attorney General, a district attorney, or a city attorney, acting as a public prosecutor, the court shall award relief in the enforcement action for any person who obtained services offered or provided in violation of Section 6125 or 6126 or who purchased any goods, services, or real or personal property in connection with services offered or provided in violation of Section 6125 or 6126 against the person who violated Section 6125 or 6126, or who sold goods, services, or property in connection with that violation. The court shall consider the following relief:
(1) Actual damages.
(2) Restitution of all amounts paid.
(3) The amount of penalties and tax liabilities incurred in connection with the sale or transfer of assets to pay for any goods, services, or property.
(4) Reasonable attorney’s fees and costs expended to rectify errors made in the unlawful practice of law.
(5) Prejudgment interest at the legal rate from the date of loss to the date of judgment.
(6) Appropriate equitable relief, including the rescission of sales made in connection with a violation of law.
(b) The relief awarded under paragraphs (1) to (6), inclusive, of subdivision (a) shall be distributed to, or on behalf of, the person for whom it was awarded or, if it is impracticable to do so, shall be distributed as may be directed by the court pursuant to its equitable powers.
(c) The court shall also award the Attorney General, district attorney, or city attorney reasonable attorney’s fees and costs and, in the court’s discretion, exemplary damages as provided in Section 3294 of the Civil Code.
(d) This section shall not be construed to create, abrogate, or otherwise affect claims, rights, or remedies, if any, that may be held by a person or entity other than those law enforcement agencies described in subdivision (a). The remedies provided in this section are cumulative to each other and to the remedies and penalties provided under other laws.

SEC. 2.

 Section 22443.1 of the Business and Professions Code is amended to read:

22443.1.
 (a) Prior to engaging in the business or acting in the capacity of an immigration consultant on or after January 1, 1998, each person shall file with the Secretary of State a bond of fifty thousand dollars ($50,000) executed by a corporate surety admitted to do business in this state and conditioned upon compliance with this chapter. The total aggregate liability on the bond shall be limited to fifty thousand dollars ($50,000). 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 bond required by this section shall be in favor of, and payable to, the people of the State of California and shall be for the benefit of any person damaged by any fraud, misstatement, misrepresentation, unlawful act or omission, or failure to provide the services of the immigration consultant or the agents, representatives, or employees of the immigration consultant while acting within the scope of that employment or agency.
(c) The Secretary of State shall charge and collect a filing fee to cover the cost of filing the bond.
(d) The Secretary of State shall enforce the provisions of this chapter that govern the filing and maintenance of bonds.
(e) This section does not apply to employees of nonprofit, tax-exempt corporations who help clients to complete application forms in immigration matters, either free of charge or for a fee. Any fees charged may include reasonable costs and shall be consistent with fees authorized by the United States Immigration and Naturalization Service for qualified designated entities.

SEC. 3.

 Section 22443.3 is added to the Business and Professions Code, to read:

22443.3.
 It is unlawful for any person to disseminate by any means any statement indicating directly or by implication that the person engages in the business or acts in the capacity of an immigration consultant, or proposes to engage in the business or act in the capacity of an immigration consultant, unless the person has on file with the Secretary of State a bond, in the amount and subject to the terms described in Section 22443.1, that is maintained throughout the period covered by the statement, such as, but not limited to, the period of a yellow pages listing.

SEC. 4.

 Section 22447 of the Business and Professions Code is amended to read:

22447.
 (a) A person who is awarded damages in an action or proceeding for injuries caused by the acts of a person engaged in the business of, or acting in the capacity of, an immigration consultant, in the performance of his or her duties as an immigration consultant, may recover damages from the bond required by Section 22443.1.
(b) When any claim or claims against a bond have been paid so as to reduce the principal amount of the bond remaining available to pay claims below the principal amount required by Section 22443.1, the immigration consultant shall cease to conduct any business unless and until the bond has been reinstated up to the minimum amount required by Section 22443.1.

SEC. 5.

 No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.