Draft Model California LDA Legislative Changes

Tom Gordon, of Responsive Law, met with myself and Suzanne Bowlby to discuss changes to California's B&P 6400 - the LDA law. We provided our input as to the seeming "failures" in the existing code and Mr. Gordon later provided us with the following rough draft of proposed model legislation drafted using Arizona's existing statute and input from our meeting and from legal document preparers in other states. At this time, there is no set target date for introduction of proposed legislation, but we are hoping to have it (in some form) before the legislators in time for the 2012 session. We are asking for comments from anyone interested in legislation so that we may prepare a written and comprehensive response to Mr. Gordon's request for input from California LDAs and Paralegals.

We would like to know what you think. Should we make an effort to change the legislation? Is this playing with fire? Do you have any comments, modifications, additions or deletions you would like to see? What are your thoughts?
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DRAFT MODEL STATE LEGAL TECHNICIAN LEGISLATION

NOTE: This rough draft of model legal technician legislation is based largely on the Arizona Legal Document Preparer (LDP) statute, with input from the California statute and the proposed Washington state framework as well. We have chosen the term “legal technician” for ease in drafting, and because it may impute some additional respect to the profession.


Purposes

The purpose of the legal technician program is to expand low-cost services in non-contested legal matters in which parties are unrepresented by providing opportunity and fair administration for legal technicians, while affording a high degree of consumer protection through accountability and quality of service.

Section 1: Legal Technician

A. Definitions. The following definitions shall apply:

“Board” means the Board of Legal Technicians.

“Designated principal” means the individual associated with a certified business entity, on file with the board, who is a certified legal technician and is responsible for supervising all certified legal technicians, trainees and staff working for the business.

“Legal technician” means an individual or business entity certified pursuant to this section to prepare or provide legal documents, without the supervision of an attorney, for an entity or a member of the public who is engaging in self-representation in any legal matter. An individual or business entity whose assistance consists merely of secretarial or receptionist services is not a legal technician.

“Trainee” means a person who would qualify for certification as a legal technician but for the lack of required experience, and who is seeking to gain the required experience to qualify as a certified legal technician by working under the supervision of a designated principal, on behalf of a certified business entity, to perform authorized services, as set forth in this section.

B. Applicability. In order to qualify to provide legal document preparation services under this section, legal technicians and business entities that provide legal document preparation services shall hold valid certification and perform their duties in accordance with this Chapter.

C. Administration.

1. The Board of Legal Technicians is established. (1) The board shall certify and recertify qualified applicants and shall make determinations regarding disciplinary proceedings. The board shall oversee a staff to administer the program. (2)

2. Establishment and Administration of Fund. The board shall establish a legal technician fund consisting of monies received for certification fees, costs and civil penalties. The board shall administer the legal technician fund and shall receive and expend monies from the fund.


D. Certification. The following requirements apply:

1. Eligibility Individual Standard Certification.

a. The board shall issue certification to an applicant for Individual Certification who provides or shows proof of each of the following: (3)

i. Age. An applicant must be at least eighteen years of age;

ii. Good standing. An applicant must show that he or she is not an individual whose application has been denied or whose individual certificate has been revoked by the board, except that the board may grant the application of such an individual if the board reviews the application of the applicant during a board meeting and is satisfied the applicant meets the requirements of this section, and by majority vote of the board, allows certification of the applicant. (4)

iii. Education or Experience. The applicant shall also possess one of the following combinations of education or experience:

1. Option 1. A two-year associates degree from an accredited college or university and a minimum of two years of law-related experience under the supervision of a licensed attorney; under the supervision of a certified legal technician; or as court employee; or completed independently before this law took effect; or in a combination of any of the above.

2. Option 2. A four-year bachelor of arts or bachelor of science degree from an accredited college or university and a minimum of one year of law-related experience under the supervision of a licensed attorney; under the supervision of a certified legal technician; as a court employee; or completed independently before this law took effect; or in a combination of any of the above.

3. Option 3. A minimum of three years of law-related experience under the supervision of a licensed attorney; under the supervision of a certified legal technician; as a court employee; or completed independently before this law took effect; or in a combination of any of the above.

4. Option 4. A certificate of completion from a paralegal or legal assistant program approved by the American Bar Association or that is institutionally accredited, that requires successful completion of a minimum of 24 semester units, or the equivalent, in legal specialization courses, with a grade of “C” or better, or a pass in a pass/fail program;

5. Option 5. A certificate of completion from an accredited educational program designed specifically to qualify a person for certification as a legal technician under this section;

6. Option 6. The successful completion of eight semester units from a law school institutionally accredited or accredited by the American Bar Association or the bar association of this state, with a grade of “C” or better, or a pass in a pass/fail program.

b. An applicant who is denied certification by the board may exercise the right to a hearing by the board.

2. Eligibility for Business Entity Standard Certification.

a. All corporations, limited liability companies, partnerships, and all sole proprietorships that offer authorized legal document preparation services to parties and employ more than one certified legal technician, or supervise trainees, shall obtain certification as a business entity.

b. The business entity shall designate a certified individual legal technician as a principal pursuant to this section. The designated principal shall have the following duties and responsibilities:

i. Prepare and submit, with the business entity application, and by [Month] [Date] (5) of each year, a list of all certified legal technicians and trainees acting on behalf of the business entity;

ii. Actively and directly supervise all other certified legal technicians, trainees, and staff working for the certified business entity; and

iii. Represent the business entity, at the discretion of the entity, in any proceeding under this section.

c. In the event a designated principal is no longer able or willing to serve as the principal, a certified business entity shall immediately designate another certified individual legal technician as the new designated principal and file an updated designated principal form with the division staff.

d. If the status of an individual certificate holder changes from being associated with a business entity, the legal technician shall notify the division staff in writing.

e. The owner or officers of a certified legal technician business entity are not required to hold individual certification, provided the business entity has a designated principal who holds valid individual certification as a legal technician. (6)

f. A person whose individual application has been denied or revoked by the board without being later granted or reinstated may not hold ownership interest in a certified legal technician business.

3. Trainees. A certified business entity may employ a person who would qualify for certification as a legal technician but for the lack of required experience. A designated principal may train the employee to perform services authorized by this section until such time as the trainee meets the minimum eligibility requirements for individual certification. (7) Any designated principal who undertakes to train an employee shall:

a. Supervise the quality of and guide the trainee’s work;

b. Ensure the trainee is familiar with and adheres to this Chapter;

c. Provide the designated principal’s name and certificate number on any documents prepared by the trainee under the designated principal’s supervision; and

d. Prepare and submit to the board the name, address, start date of the trainee, and the anticipated date the trainee will meet the minimum eligibility requirements to seek individual certification. (8)

4. Eligibility for Online Legal Technicians.

a. To provide legal technician services to any customer in [this state], an online provider of legal technician services must:

i. Establish a designated principal who is a certified individual legal technician under this Chapter and who is responsible for receiving service of process in the state and ensuring that the online legal technician service provider complies with all applicable provisions.

ii. Comply with all applicable codes of conduct ethical and professional responsibility standards under this chapter, including that an online legal technician service must:

1. Clearly and unequivocally state in prominent locations throughout the website and on every downloadable form that an attorney-client relationship is not created, nor is any privilege associated with that relationship.

2. Provide on the website in clear and simple terms the nature of the services provided, and the role of all attorneys, legal technicians, other personnel and automated systems in providing, preparing and submitting legal documents.

3. Provide clearly and prominently the current certification and legal technician certification number for [this state].

E. Role and Responsibilities of Certificate Holders.

1. Authorized Services. A certified legal technician is authorized to provide all of the following services for any individual or entity:

a. Prepare, provide, or select legal documents for customers;

b. Provide general legal information pertaining to legal rights, procedures, or options available, but may not provide any kind of specific advice, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, or strategies;

c. Review forms and filings for completeness, spelling and grammar, as well as internal consistency of names, addresses and other similar information. A legal technician may not review forms for legal sufficiency, draw legal conclusions, or apply the law to the facts of a particular situation.

d. File and arrange for service of legal forms and documents for a person in a legal matter.

2. Code of Conduct.

a. Identification. All documents prepared by a legal technician shall include: the legal technician’s name; the title “Certified Legal Technician;” the legal technician’s certificate number; and the business entity name and certificate number where applicable.(9)

b. Ethics and Professionalism. (10)

i. A legal technician shall avoid impropriety and the appearance of impropriety in all activities, shall respect and comply with the laws, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the legal and judicial systems.

ii. A legal technician shall refrain from knowingly making misleading, untrue, or fraudulent representations while assisting a consumer in the preparation of legal documents, and shall observe the highest standards of integrity and truthfulness in all professional dealings.

iii. A legal technician shall treat information received from the consumer as confidential, yet recognize and acknowledge that the privilege of attorney-client confidential communications is not extended to certified legal technicians.

iv. A legal technician shall not represent that they are authorized to practice law in [this state], nor shall the legal technician provide legal advice or services to another by expressing opinions, either verbal or written, about possible legal rights, remedies, defenses, options, or strategies, or by representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process.

v. A legal technician shall inform the consumer in writing that a legal technician is not a lawyer, is not employed by a lawyer, and cannot give legal advice, and that communications with a legal technician are confidential but not privileged.(11)

vi. A legal technician shall not use the designations “lawyer,” “attorney at law,” “counselor at law,” “law office,” “JD,” “Esq.,” or other equivalent words, the use of which is reasonably likely to induce others to believe the legal technician is authorized to engage in the practice of law in this state.

c. Fees and Services.

i. A legal technician shall provide in writing an itemization of all rates and charges to that consumer.

d. Skills and Practice.

i. A legal technician may consult and involve other professionals in order to assist the consumer, while protecting the confidentiality of his or her consumers to the extent possible. (12)

ii. A legal technician shall provide completed documents to a consumer in a timely manner, and shall meet document preparation deadlines in accordance with rules, statutes, court orders, or agreements with the parties. A legal technician shall provide immediate notification to the consumer of any delays.

iii. A legal technician shall accept only those assignments for which the legal technician’s level of competence will result in the preparation of an accurate document.

iv. A legal technician shall not at any time engage in the unauthorized practice of law.

F. Renewal of Certification. All standard certifications expire at midnight, on [Month][Day] of each odd numbered year.(13) Renewal fees are due before this date.

G. Complaints, Investigation, Disciplinary Proceedings and Certification and Disciplinary Hearings.(14)

1. Grounds for Discipline. A certificate holder is subject to disciplinary action if the board finds the certificate holder has:

a. Failed to perform any duty to discharge any obligation in the course of the certificate holder’s responsibilities as required by law or has failed to comply with any ethical or skills and practice standards;

b. Aided or assisted another person or business entity to provide services requiring certification if the other person or entity does not hold the required certification;

c. Been convicted of a criminal offense while certified by final judgment of a felony relevant to certification or failed to provide information regarding a criminal conviction;

d. Exhibited gross negligence or incompetence in the performance of duties;

e. Evaded service of a subpoena or notice or failed to cooperate with or supply information to the staff or board.

2. Filing of complaint. Any person may(15) file a complaint with the division staff if it appears a certificate holder has violated statutes, court rules, or this Chapter. The complaint shall be in writing with sufficient specificity to warrant further investigation. The complaint form shall provide the name, telephone number and address of the complainant.

3. The division staff shall immediately dismiss any complaint lacking any of the above information, or if a complaint fails to establish jurisdiction of the board.(16)

4. Standing of Complainant. A complainant does not have standing regarding any proceedings and is not a party to any proceedings. The complainant may, upon request, receive notice of public proceeding concerning the complaint. Failure by division staff to provide the complainant with information as required by this subsection shall not affect the ultimate disposition of any proceedings.

5. Investigative Subpoenas. Upon a demonstration of good cause, the board may issue an investigative subpoena to any person or entity for documents or information related to a pending investigation over which the board has jurisdiction.

6. Resolution of Complaints and Investigations. The division may resolve a complaint by:

a. Dismissing the complaint.

b. Resolving the complaint through a formal discipline proceeding. Formal Disciplinary Proceedings:

i. Provide the certificate holder the right to a hearing;

ii. May result in sanctions, including costs and civil penalties; and

iii. Are not confidential.

7. Public Availability of Certification and Discipline.

a. The board shall maintain an accurate, up-to-date list of all currently certified legal technicians and the disciplinary records of each available to the public.

H. Fee Schedule.

1. Certification for each two year certification period $[] (17)

2. Business Entity Certification for Two Year Certification Period $[]

3. Inactive Status $[]

4. Late Renewal $ []


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Notes:
(1) In Arizona and Washington (proposed), the Supreme Court oversees the administration of LT programs, but LTs are not providing legal services, so it is not clear that the SC in any state should have jurisdiction over them. Some administration is necessary, but it seems that a competent board should be sufficient. In Arizona, the SC serves as the last review board for certification decisions, but it seems that applicants and LTs will have adequate due process through a board procedure and the typical redress to courts. It may be necessary to include in the law that the “final” decision from the board is the necessary final step in exhausting administrative remedies before any claim can be brought in court.
(2) In Arizona, the board is comprised of an attorney, a judge and a member appointed by the Supreme Court; that level of detail seems unnecessary in model legislation.
(3) Arizona also requires an applicant to furnish fingerprints for a criminal background investigation, have good moral character, and be a citizen or legal resident. As far as the moral character and criminal background check go, including them adds to the complexity and cost of administration, and requires further regulations to determine what constitutes “moral character,” and what in a criminal background check would be disqualifying, unless these decisions are left to the board without additional guidance. Requiring legal citizenship or residency injects a political message without consumer benefit, so it has also been omitted here.
(4) Arizona also requires that an applicant show that he or she is not an individual who has been disbarred by the highest court in any state, without reinstatement, except that the board may grant the application of such an individual if: The board reviews the application of the applicant during a board meeting and is satisfied the applicant meets the requirements of this section, and by majority vote of the board in public session, allows certification of the applicant. Given the various possible reasons for disbarment, not all of which may be relevant to competence as an LT, and given a preference for autonomy of the LT profession from the bar, this requirement has been omitted.
(5) As with its recertification standards, which are required on the same date each year for all LTs, regardless of when they became certified, Arizona’s single deadline for other administrative requirements is a smart move that conserves resources for the state and results in clarity for LTs.
(6) This provision allows out-of-state businesses to operate within the state; it also allows large entities run by non-LTs to provide services.
(7) Arizona allows a trainee to work as a trainee for only two and a half years, which seems designed to prevent the creation of a permanent “trainee” position. Allowing more than the six month leeway they allow might be a more balanced approach and, for example, allow women to enter the field and count their training, even after they have left for maternity leave or other reasons. There are analogous provisions under the ABA for completing law school within a certain number of semesters, but there do not appear to be analogous provisions in California for apprenticing attorneys (those who do not go to law school before taking the bar exam), which seems to be a more applicable analogy.
(8) Arizona also requires a certificate holder who has been disbarred from the practice of law in any state since original certification as a legal technician to tell the board within 30 days of service of the notice of the disbarment. Arizona also requires a certificate holder who has been denied admission to the practice of law in Arizona since original certification as a legal technician to provide the information regarding the denial to the board within 30 days of service of the notice of the denial. These requirements correspond to Arizona’s requirements that someone who has been disbarred in any state, or who has been denied admission to the AZ board must have a special hearing before being certified as an LDP.
(9) Arizona requires that an LDP shall provide their name, title and certificate number to any person upon request, which seems odd and overbroad. I also think the nonjudicial agency language is quite odd, and am unsure of a case in which this would be applicable. It’s also strange to expressly require for a nonjudicial agency to prohibit the posting of a name and ID number, but not to include a court, which presumably an LT would have to listen to.
(10) Arizona has a number of detailed ethics requirements that are summed up in this shortened list.
(11) The reference to confidentiality is new.
(12) This reference to confidentiality is also new.
(13) Establishing deadlines may reach a level of detail we don’t need to incorporate in our model legislation. If we do want to incorporate it, it seems like establishing one date per year rather than a rolling admissions/recertification system minimizes the level of bureaucracy throughout the year and results in clarity for LTs.
(14) Legal technician professional associations may provide much of the needed oversight and structure for disciplinary proceedings, as will general market forces. Arizona’s complaint and disciplinary proceedings provisions are exceedingly detailed. This section is designed to provide a loose framework for such proceedings, that state can work into its existing structures.
(15) Arizona requires all judicial officers, court employees and certificate holders to file complaints with the board; we removed that requirement, as it is nearly impossible to monitor, and in the hopes that an aggrieved consumer would stand up for themselves and file a complaint if other mechanisms (such as a refund) are not sufficient to remedy any wrongs. One could envision a situation in which a consumer is wronged by inadequate services provided by an LT, and the consumer does not realize or is otherwise unable to report on the LT’s failures. In such a case, it is possible a court employee’s reporting would be valuable. To address this, the model legislation does not bar such reporting, but simply don’t require it. In general, allowing the market and private interactions to solve disputes seems like the more efficient and likely more satisfying option, and one that uses fewer state resources.
(16) Arizona allows the board to retain authority after expiration of a certificate, to initiate a complaint, direct division staff to investigate a complaint, or take disciplinary action regarding the certification of a certificate. This is unnecessary; if a person has a claim for damages against an LT whose license has expired, the person can bring a claim against them. The board should not retain jurisdiction over someone whose certification has expired.
(17) In 2009, Arizona’s fee was $650 every two years, or $325 per year. California’s was $175 plus the bond requirement. Since we require a bond in the model legislation, a smaller fee seems warranted. However, for model legislation purposes, including an actual number does not seem necessary.