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SB-316 Attorneys: pro bono legal services.(2017-2018)

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Date Published: 06/22/2017 09:00 PM
SB316:v95#DOCUMENT

Amended  IN  Assembly  June 22, 2017
Amended  IN  Senate  May 03, 2017
Amended  IN  Senate  April 17, 2017
Amended  IN  Senate  March 29, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Senate Bill No. 316


Introduced by Senator Wieckowski

February 13, 2017


An act to amend Sections 6072 and 6073 of, and to add Sections 6073.1 and 6073.2 to, the Business and Professions Code, relating to attorneys.


LEGISLATIVE COUNSEL'S DIGEST


SB 316, as amended, Wieckowski. Attorneys: pro bono legal services.
The State Bar Act provides for the licensure and regulation of attorneys by the State Bar of California, a public corporation governed by a board of trustees. The act provides that it has been the tradition of those learned in the law and licensed to practice law in this state to provide voluntary pro bono legal services to those who cannot afford the help of a lawyer and further provides that every lawyer authorized and privileged to practice law in California is expected to make a contribution, whether by directly providing pro bono legal services or, if that is not feasible, by providing financial support to organizations providing free legal services to persons of limited means, as specified.
The State Bar Act also, with specified exceptions, requires a law firm that contracts with the state for legal services exceeding $50,000 to certify that it agrees to make a good faith effort to provide a minimum number of hours of pro bono legal services, as defined, during each year of the contract. The act provides that failure of a firm to make a good faith effort to provide those hours may be cause for nonrenewal of a state contract and may be taken into account when determining the award of future contracts with the state.
This bill, with respect to the expectation of every lawyer authorized and privileged to practice law in California to make a contribution as specified, instead would provide that those lawyers are strongly encouraged to fulfill their individual pro bono ethical commitments to make a contribution of both 50 hours of pro bono legal services, as defined, and financial contributions to legal aid organizations, as defined. The bill would set forth aspirational goals for these contributions. The bill would require a member of the State Bar to report the hours of pro bono legal services performed and the amount of money contributed to legal aid organizations and nonprofit public benefit corporations and other specified organizations on an annual basis when the State Bar statement is due and would require the design of a member’s State Bar online profile to allow the member to report this and other related information and indicate whether the member prefers choose whether to keep the reported pro bono information private or available to the public, as specified. The bill would exempt certain members from the contributions and reporting requirements but an exempted member would be authorized to publicly disclose otherwise reportable information relating to contributions. Under the bill, failure of a member to contribute and report as required would not be grounds for disciplinary or administrative recourse. The bill would require the State Bar to retain and maintain reported information during the time the member’s status is active and would further require up to the previous 5 years of active status of the information to be made publicly available on the member’s State Bar online profile pursuant to the voluntary public disclosure of that information by the member. The bill would provide for the confidentiality of, and prohibit disclosure of, reported information not made publicly available.
The bill would define pro bono legal services for purposes of a member’s ethical commitment and reporting and for purposes of the certification requirement for state contracts for legal services.
Existing constitutional provisions require that a statute that limits the right of access to the meetings of public bodies or the writings of public officials and agencies be adopted with findings demonstrating the interest protected by the limitation and the need for protecting that interest.
This bill would make legislative findings to that effect.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 6072 of the Business and Professions Code is amended to read:

6072.
 (a) A contract with the state for legal services that exceeds fifty thousand dollars ($50,000) shall include a certification by the contracting law firm that the firm agrees to make a good faith effort to provide, during the duration of the contract, a minimum number of hours of pro bono legal services, or an equivalent amount of financial contributions to qualified legal services projects and support centers, as defined in Section 6213, during each year of the contract equal to the lesser of either (1) 30 multiplied by the number of full-time attorneys in the firm’s offices in the state, with the number of hours prorated on an actual day basis for any contract period of less than a full year or (2) 10 percent of its contract with the state. “Ten percent of the contract” shall mean the number of hours equal to 10 percent of the contract amount divided by the average billing rate of the firm.
(b) Failure to make a good faith effort may be cause for nonrenewal of a state contract for legal services, and may be taken into account when determining the award of future contracts with the state for legal services. If a firm fails to provide the hours of pro bono legal services set forth in its certification, the following factors shall be considered in determining whether the firm made a good faith effort:
(1) The actual number of hours of pro bono legal services or the amount of financial contributions provided by the firm during the term of the contract.
(2) The firm’s efforts to obtain pro bono legal work from legal services programs, pro bono programs, and other relevant communities or groups.
(3) The firm’s history of providing pro bono legal services or financial contributions, or other activities of the firm that evidence a good faith effort to provide pro bono legal services or financial contributions, such as the adoption of a pro bono policy or the creation of a pro bono committee.
(4) The types of pro bono legal services provided, including the quantity and complexity of cases as well as the nature of the relief sought.
(5) The extent to which the failure to provide the hours of pro bono legal services or financial contributions set forth in the certification is the result of extenuating circumstances unforeseen at the time of the certification.
(c) In awarding a contract with the state for legal services that exceeds fifty thousand dollars ($50,000), the awarding department shall consider the efforts of a potential contracting law firm to provide, during the 12-month period prior to award of the contract, the minimum number of hours of pro bono legal services described in subdivision (a). Other things being equal, the awarding department shall award a contract for legal services to firms that have provided, during the 12-month period prior to award of the contract, the minimum number of hours of pro bono legal services described in subdivision (a).
(d) As used in this section, “pro bono legal services” has the meaning provided in Section 6073.1.
(e) Nothing in this section shall subject a contracting law firm that fails to provide the minimum number of hours of pro bono legal services described in subdivision (a) to civil or criminal liability, nor shall that failure be grounds for invalidating an existing contract for legal services.
(f) This article shall not apply to state contracts with, or appointments made by the judiciary of, an attorney, law firm, or organization for the purposes of providing legal representation to low- or middle-income persons, in either civil, criminal, or administrative matters.
(g) This article shall not apply to contracts entered into between the state and an attorney or law firm if the legal services contracted for are to be performed outside the State of California.

SEC. 2.

 Section 6073 of the Business and Professions Code is amended to read:

6073.
 It has been the tradition of those learned in the law and licensed to practice law in this state to provide voluntary pro bono legal services to those who cannot afford the help of a lawyer. Every lawyer authorized and privileged to practice law in California is strongly encouraged to fulfill his or her individual pro bono ethical commitment to make a contribution of both 50 hours of pro bono legal services and financial contributions to legal aid organizations. Lawyers also make invaluable contributions through their other voluntary public service activities that increase access to justice or improve the law and the legal system. In view of their expertise in areas that critically affect the lives and well-being of members of the public, lawyers are uniquely situated to provide invaluable assistance in order to benefit those who might otherwise be unable to assert or protect their interests, and to support those legal organizations that advance these goals.

SEC. 3.

 Section 6073.1 is added to the Business and Professions Code, to read:

6073.1.
 For purposes of this article, the following definitions apply:
(a) “Legal aid organization” has the meaning provided in Section 6159.51.
(b) “Person of limited means” means an individual qualified as “low-income,” “very low-income,” or “extremely low-income” under the current Department of Housing and Community Development Official State Income Limits as set forth on the State of California’s Internet Web site.
(c) (1) “Pro bono legal services” means providing legal services without expectation of compensation from the client other than reimbursement of expenses to:
(A) An indigent person, as defined in paragraph (1) of subdivision (f) of Section 8030.4.
(B) A legal aid organization, nonprofit public benefit corporation, as authorized by Section 13406 of the Corporations Code, or other charitable, religious, civic, community, governmental, and educational organization in matters that are designed primarily to address the needs of persons of limited means.
(2) “Pro bono legal services” does not include legal services written off as bad debts.
(d) “Other voluntary public service activities” means the following:
(1) Legal services provided to an organization, in matters in furtherance of its organizational purposes, where payment of market rate for legal fees would significantly deplete the organization’s resources or would otherwise be inappropriate.
(2) Legal services provided in the State of California at no fee or reduced fee to an individual, group, or organization that seeks to improve the administration of justice to persons of limited means, including, but not limited to, one of the following purposes:
(A) Strengthening respect for the rule of law.
(B) Simplifying the legal process.
(C) Increasing the availability and quality of legal services to poor persons.
(D) Increasing participation by poor persons in legal activities that improve the law, the legal system, or the legal profession.
(e) “Reduced fee legal services” means providing or enabling direct delivery of legal services at a substantially reduced rate affordable to persons of limited means to:
(1) A person of limited means.
(2) A person or organization identified in subparagraph (A) or (B) of paragraph (1) of subdivision (c).

SEC. 4.

 Section 6073.2 is added to the Business and Professions Code, to read:

6073.2.
 (a) Every Pursuant to Section 6073, every lawyer should aspire to fulfill his or her individual commitment to provide at least 50 hours of pro bono legal services each year and contribute financially to California legal aid organizations. A lawyer should aspire to annually contribute financially to legal aid organizations a total amount equivalent to, or greater than, the following:

(1)The amount typically billed by the lawyer, or by the firm with which the lawyer is associated, for one hour of time.

(2)If the lawyer performs his or her work on a contingency basis, the amount typically billed by lawyers in the community for one hour of time.

(3)The amount typically paid by the organization employing the lawyer for one hour of the lawyer’s time.

(4)If the lawyer is underemployed, an amount not to exceed one-tenth of one percent of the lawyer’s annual income.

(b) A member of the State Bar shall report the hours of pro bono legal services and the amount of money contributed to California legal aid organizations and nonprofit public benefit corporations, as authorized by Section 13406 of the Corporations Code, on an annual basis when the State Bar statement is due. If the member’s employer prohibits the member from performing pro bono legal services, the member may so report when the member reports the hours of pro bono legal services performed.

(c)A member of the State Bar may also voluntarily report the hours of reduced fee legal services.

(d)Each member shall self-report this information through the member’s State Bar online profile on the State Bar’s Internet Web site through a provided section where those hours and financial contributions shall be declared.

(e)

(c) A member shall self-report fulfilling his or her individual commitment through the member’s State Bar online profile on the State Bar’s Internet Web site through a provided section where those hours and financial contributions shall be declared. The design of a member’s State Bar online profile shall allow the member to report:
(1) Amount of pro bono legal services hours performed. For a member’s reported information under this paragraph, the member may choose to make the member’s reported information publicly available on the member’s State Bar online profile, pursuant to voluntary public disclosure, or keep the reported information private.
(2) Amount of money contributed financial contributions to a California legal aid organization. organizations, nonprofit public benefit corporations, as authorized by Section 13406 of the Corporations Code, or both. For a member’s reported information under this paragraph, the member may choose to make the member’s reported information publicly available on the member’s State Bar online profile, pursuant to voluntary public disclosure, or keep the reported information private.
(3) Hours of other legal services, including reduced fee legal services, performed for a low-income individual or individual, nonprofit organization. organization, or public law library established under Section 6360. For a member’s reported information under this paragraph, the member may choose to make the member’s reported information publicly available on the member’s State Bar online profile, pursuant to voluntary public disclosure, or keep the reported information private.

(4)If the member’s current employer prohibits the member from performing pro bono legal services.

(4) The following categories of employment status, which shall be provided for a member to select on the member’s State Bar online profile:

(5)

(A) If the member is employed by a government agency or is an officer or elected official of the State of California. California pursuant to Section 6070.

(6)

(B) If the member is employed by an organization primarily engaged in the provision of pro bono legal services. services, including qualified legal services projects and qualified support centers, as defined in Section 6213, legal aid organizations, and nonprofit public benefit corporations, as authorized by Section 13406 of the Corporations Code.

(7)Whether the member prefers to keep the reported pro bono information private or available to the public.

(C) If the member is prohibited by the member’s current employer from performing pro bono legal services.

(f)

(d) The State Bar shall retain and maintain the information reported pursuant to subdivision (b) for purposes of historical record on a member’s State Bar online profile during the time the member’s status is active. This information shall be made publicly available on the member’s State Bar online profile up to the previous five years of active status pursuant to voluntary public disclosure by the member.

(g)Subdivisions (a), (b), (c), and (d) and Section 6073 do not apply to a member of the State Bar who is exempt from mandatory continuing legal education requirements pursuant to Section 6070 or who is employed by an organization primarily engaged in the provision of pro bono legal services, including qualified legal services projects and qualified support centers, as defined in Section 6213, legal aid organizations, and nonprofit public benefit corporations, as authorized by Section 13406 of the Corporations Code.

(h)A member of the State Bar exempt under subdivision (g) or whose current employer prohibits the member from performing pro bono legal services, may nevertheless publicly disclose the amount of money contributed to a California legal aid organization pursuant to this section. A member of the State Bar exempt under subdivision (g) may nevertheless publicly disclose any of the information in paragraphs (1) to (7), inclusive, of subdivision (e). This information shall be made publicly available on the member’s State Bar online profile, pursuant to voluntary public disclosure by the member.

(i)

(e) Notwithstanding any other law, if the information reported pursuant to subdivision (b) is not made publicly available on the member’s State Bar online profile pursuant to voluntary disclosure by a member pursuant to the procedure described in subdivision (e), (c), such information shall be confidential and shall not be disclosed pursuant to any state law, including, but not limited to, the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1 of the Government Code). This subdivision does not prohibit the disclosure of aggregate data that does not reveal personally identifying data.

(j)

(f) Failure of a member of the State Bar to comply with any of the provisions of Sections 6073 and 6073.1 and this section is not grounds for disciplinary or administrative recourse.

SEC. 5.

 The Legislature finds and declares that Section 4 of this act, which adds Section 6073.2 to the Business and Professions Code, imposes a limitation on the public’s right of access to the meetings of public bodies or the writings of public officials and agencies within the meaning of Section 3 of Article I of the California Constitution. Pursuant to that constitutional provision, the Legislature makes the following findings to demonstrate the interest protected by this limitation and the need for protecting that interest:
In order to protect individual State Bar members who choose to maintain the privacy of information concerning the hours of pro bono legal services performed and the amount of money contributed to legal aid organizations on an annual basis by those individuals, it is necessary to provide those individuals with an option to exempt that information from the provisions of the California Public Records Act. This option and resulting limitation properly balances the rights of individuals against the ability of the public to access that information.