ALDAP is seeking your comments on California Business and Professions Code section 6400 et seq. (California's LDA statutes). It is our desire to create an open discussion related to the statutes governing non-attorneys in the State of California. What needs changing? What should remain the same? Are there any portions that should be struck? Added? After ten years, we wish to re-examine the legislation surrounding our industry and seek improvements to the existing laws.
Our efforts has proven that grievous harm to consumers by these individuals and companies has gone and will remain ignored by law enforcement.
For the past ten years, LDAs have regularly questioned just how to enforce the statutes governing LDAs. LDAs are governed by the Department of Consumer Affairs pursuant to California Business and Professions Code section 101.6 which provides that the DCA is “established for the purpose of ensuring that those private businesses and professions deemed to engage in activities which have potential impact upon the public health, safety, and welfare are adequately regulated in order to protect the people of California.”
Toward this end, the DCA is to “establish minimum qualifications and levels of competency and license persons desiring to engage in the occupations they regulate upon determining that such persons possess the requisite skills and qualifications necessary to provide safe and effective services to the public, or register or otherwise certify persons in order to identify practitioners and ensure performance according to set and accepted professional standards. They (DCA) provide a means for redress of grievances by investigating allegations of unprofessional conduct, incompetence, fraudulent action, or unlawful activity brought to their attention by members of the public and institute disciplinary action against persons licensed or registered under the provisions of this code when such action is warranted. In addition, they conduct periodic checks of licensees, registrants, or otherwise certified persons in order to ensure compliance with the relevant sections of this code.” (emphasis added).
ALDAP has noted that its complaints have been pushed aside by the DCA with referrals to local law enforcement. ALDAP has also received correspondence from local law enforcement denying responsibility for enforcement. Local District Attorneys have ignored complaints and the California State Bar responded that it is "maintaining a file." Now, these complaints were not of a minor nature, but rather, included forgery, UPL, transfer of real properties for no apparent reason other than to charge fees, exorbitant fees for the work performed, and failure to use the required LDA contract. One such case even included fraudulent statements by the rogue that he was, indeed, an attorney, just not licensed in California.
ALDAP's complaints were supported by client declarations, reams of documented proof and our own declarations based on office sting operations. Apparently, legislated consumer protections are merely a ruse.
California's economic downturn created burdens and challenges. Local district attorneys offer that there are much more egregious crimes to be investigated and that the statute of limitations on fraud is short. Time and budget constraints limit law enforcement investigation. However, ALDAP frequently receives calls and emails from harmed consumers begging us to help them. There is nothing we can do, aside from guiding the harmed consumer to the proper authorities. Unfortunately, with the exception of a civil suit, consumers are left with little recourse. Reputable LDAs also suffer as a result of consumer skepticism and distrust.
ALDAP intends to change up its methodologies in order to enforce the regulations governing the LDA industry and to attain the level of professionalism that we deserve. ALDAP is working with other state and national associations to create proposed amendments to the current legislation to enhance the role of the LDA and to clear up the “gray” provisions that exist and cloud efforts to enforce the laws. It appears that if we do not do it ourselves, we may never receive professional recognition. As a matter of fact, the Elkins Family Law Task Force reported that until LDA compliance is assured, it could not recommend use of LDAs to our court users.
Many states are reviewing non-attorney document preparers as a viable alternative to the high cost of attorney fees. Hawaii, after a failed attempt to broaden its definition of the practice of law to exclude document preparers and other legal document professionals, will soon be reviewing proposed legislation allowing for legal document preparers, but with strict guidelines.
ALDAP believes California should be THE model for other states. Unfortunately, existing legislation leaves much to be desired. Violators are commonplace. Consumers continue to be harmed. Compliant LDAs are also harmed by those who fail to pony up the fees for a bond and registration. Consumers and reputable competent LDAs are harmed by those who have little knowledge of the preparation and processing of legal documents, knowledge of ethics, confidentiality, or the definition of UPL. It has commonly been acknowledged in the legal profession that a little bit of knowledge can be a dangerous thing. An LDA should have complete comprehension of how to assist a client without stepping on or over the line.
The following comprises a brief view of changes to existing legislation ALDAP's board has discussed:
At present the minimum qualifications are that a person must have a high school diploma or general equivalency diploma, and either a minimum of two years of law-related experience under the supervision of a licensed attorney, or a minimum of two years experience, prior to January 1, 1999, providing self-help service – or a baccalaureate degree in any field and either a minimum of one year of law-related experience under the supervision of a licensed attorney, or a minimum of one year of experience, prior to January 1, 1999, providing self-help service.
ALDAP believes that in order to provide appropriate services, an LDA should have a legal background, including appropriate legal document preparation experience and knowledge of the rules of ethics and confidentiality in order to assist non-attorneys with their paperwork. With the current legislation, any person with a two year degree can work as a file clerk in a law firm and will therefore, qualify to assist consumers with legal document preparation. Consumers are not protected from LDAs who do not know what they are doing and who are taking advantage of consumers who may not know what they are doing. This can result in mistakes which could cost consumers rights and remedies. A paralegal or a legal secretary with a minimum of five years experience should have knowledge of published information and the court processes and in that regard, could properly assist a pro per court user on the finer nuances of procedure and document preparation through the use of published information and practice guides. This is ALDAP's Advantage(TM) business model which has proven over time to assist a pro se client by educating that client on the court rules, procedures and requirements. ALDAP would like to see the two minimum provisions deleted with additional qualifications to be added:
To be eligible to apply for registration under this chapter as a legal document assistant, the applicant shall possess at least one of the following:
(a) A certificate of completion from a paralegal program that is institutionally accredited but not approved by the American Bar Association, that requires successful completion of a minimum of 24 semester units, or the equivalent, in legal specialization courses.
(b) A certificate of completion from a paralegal program approved by the American Bar Association; or
(c) Five years documented experience working as a legal secretary or paralegal in a law firm.
At present, the statutes require that “A legal document assistant, including any legal document assistant employed by a partnership or corporation, may not provide any self-help service for compensation, unless the legal document assistant is registered in the county in which his or her principal place of business is located and in any other county in which he or she performs acts for which registration is required. A legal document assistant or unlawful detainer assistant shall be registered pursuant to this chapter by the county clerk in the county in which his or her principal place of business is located (deemed primary registration), and in any other county in which he or she performs acts for which registration is required (deemed secondary registration). Any registration in a county, other than the county of the person's place of business, shall state the person's principal place of business and provide proof that the registrant has satisfied the bonding requirement of Section 6405. No person who has been disbarred or suspended from the practice of law pursuant to Article 6 (commencing with Section 6100) of Chapter 4 may, during the period of any disbarment or suspension, register as a legal document assistant or unlawful detainer assistant. The Department of Consumer Affairs shall develop the application required to be completed by a person for purposes of registration as a legal document assistant. The application shall specify the types of proof that the applicant shall provide to the county clerk in order to demonstrate qualifications and requirements of Section 6402.1.”
ALDAP intends to propose that LDAs be required to follow registration requirements similar to those of notaries or immigration consultants. LDAs should be required to register with the State of California Secretary of State and the SOS should govern the acts of LDAs. Further, LDAs should be required to undergo background reviews via the DOJ as is required of notaries and immigration consultants. The SOS has proven itself diligent in its compliance procedures. LDAs should not be required to hold multiple registrations to operate within the state of California. The SOS should maintain on online register of LDAs, to include name, business contact information, registration number and expiration date. The bond information should be included as well as a photo of the LDA. Identification cards should be issued. The LDA contract should be changed to reflect the location of this information in order for a consumer to independently research the LDA.
Outside Scope of Authority:
Existing language clearly employs the unlawful practice of law as follows: “A legal document assistant may not provide service to a client who requires assistance that exceeds the definition of self-help service in subdivision (d) of Section 6400, and shall inform the client that the client requires the services of an attorney.”
This language would suggest that an LDA make a determination that clearly requires the application of legal acumen. The language should be amended as follows: "A legal document assistant must inform each client that he or she cannot exceed the definition of self-help service and that the client should always consult with a licensed attorney prior to hiring a legal document assistant." The contract should also specify language to this effect in boldface, large font.
ALDAP supports use of an ethics and basic legal document examination prior to issuance of a registration. ALDAP also supports the requirement that once an LDA is registered he or she must complete 12 hours minimum continuing education with 4 hours to be on the topic of ethics to be performed every two years. Documentation of CLE should be submitted with an application for re-issuance of registration.
Of course, ALDAP would include in its proposed amendment a "grandfather" clause for those LDAs who already maintain registration. The sunset date shall be upon the date of any proposed amendments becoming law.
Before we begin writing proposed amendments, ALDAP would appreciate your comments and questions. This is a huge task and ALDAP would appreciate input from others who may have comments concerning amending current legislation. Some LDAs may not wish for any changes to the statutes; others may wish for dramatic change. Please comment publicly here on The Scribe, or if you prefer, you may email your comments to Kathleen Mountjoy at Legislation@aldap.org or to Anna Taylor at Compliance@aldap.org.