BILL NUMBER: SB 387 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 28, 2015
AMENDED IN ASSEMBLY JULY 15, 2015
INTRODUCED BY Senator Jackson
FEBRUARY 24, 2015
An act to amend Sections 6001, 6026.5, 6060.2, 6086.1,
6086.15, 6090.6, 6140, and 6145
6145, 6168, 6200, 6232, and 6234 of, and
to add Section 6026.11 to, and to repeal and add
Section Sections 6026.7 and 6140.16 of, the
Business and Professions Code, and to amend Sections 6252,
11121, and 11121.1 of the Government Code, relating to
attorneys. the State Bar.
LEGISLATIVE COUNSEL'S DIGEST
SB 387, as amended, Jackson. State Bar: attorneys: annual
membership fees. fees: meetings: public
records.
Existing law, the State Bar Act, provides for the licensure and
regulation of attorneys by the State Bar of California, a public
corporation. The State Bar is governed by a board of trustees.
Existing law authorizes the board, among other duties, to aid in all
matters pertaining to the improvement of the administration of
justice, including all matters that may advance the professional
interests of the members of the State Bar.
Existing law requires the State Bar to issue an Annual Discipline
Report describing the performance and condition of the State Bar
discipline system. Existing law requires the report to cover the
previous calendar year and to include accurate and complete
descriptions of, among other things, the existing backlog of cases
within the discipline system and a description of the programs at the
State Bar directed at preventing acts warranting discipline.
Existing law requires the board to appoint a lawyer admitted to
practice in California to serve as chief trial counsel. The Office of
the Chief Trial Counsel, which is responsible for reviewing charges
of lawyer misconduct, investigates and prosecutes complaints about
attorneys.
This bill would revise the content of the information in the
report. The bill would additionally require the backlog of cases to
include other matters opened in the Office of the Chief Trial Counsel
and pending beyond 6 months after receipt, as specified.
Existing law, beginning January 1, 2015, until
January 1, 2016, requires the board to charge an annual membership
fee for active members of up to $315 for 2015.
This bill would, until January 1, 2017, require the board to
charge that annual membership fee for 2016.
Existing law requires the State Bar to review its workload
standards to measure the effectiveness and efficiency of its
disciplinary activities, including, but not limited to, the State Bar
Court and the Client Security Fund, and to provide guidance to the
State Bar and the Legislature in allocating resources, as specified.
This bill would delete that requirement. The bill would, instead,
require the State Bar to develop and implement a specified workforce
plan for its discipline system and conduct a public sector
compensation and benefits study to reassess the numbers and
classifications of staff required to conduct the disciplinary
activities. This The bill would require
the State Bar to conduct a thorough analysis of its operating costs
and develop a spending plan to determine a reasonable amount for the
annual membership fee, as specified. The bill would require the State
Bar to report to the Legislature by May 15, 2016.
Existing law requires the State Bar board
to engage the services of an independent public accounting firm
for an audit of its financial statement for each fiscal year.
This bill would require, effective January 1, 2016, the State Bar
to contract with the California State Auditor's Office to conduct an
in-depth financial audit of the State Bar, including an audit of its
financial statement, internal controls, and relevant management
practices, as provided, and would require the office to provide a
copy of the audit to the State Bar board
, the Chief Justice of the Supreme Court, and to the Assembly
and Senate Committees on Judiciary.
Under existing law, no law of this state restricting or
prescribing a mode of procedure for the exercise of powers of state
public bodies or state agencies is applicable to the State Bar,
unless the Legislature expressly so declares. Except as specified,
existing law requires every meeting of the board to be open to the
public.
Existing law, the Bagley-Keene Open Meeting Act, requires that all
meetings of a state body be open and public and that all persons be
permitted to attend any meeting of a state body, subject to certain
conditions and exceptions. A violation of these provisions is a
misdemeanor.
Existing law exempts the board from the act, but requires the
board to ensure that its open meeting requirements are consistent
with, and conform to, the Bagley-Keene Open Meeting Act.
Existing law, the California Public Records Act, requires state
and local agencies to make public records available for inspection,
subject to certain exceptions.
This bill would make the State Bar subject to the Bagley-Keene
Open Meeting Act. By expanding the scope of that crime, the bill
would impose a state-mandated local program. The bill would also make
the State Bar subject to the California Public Records Act. The bill
would make other conforming changes in this regard.
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.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6001 of the Business
and Professions Code is amended to read:
6001. The State Bar of California is a public corporation. It is
hereinafter designated as the State Bar.
The State Bar has perpetual succession and a seal and it may sue
and be sued. It may, for the purpose of carrying into effect and
promoting its objectives:
(a) Make contracts.
(b) Borrow money, contract debts, issue bonds, notes and
debentures and secure the payment or performance of its obligations.
(c) Own, hold, use, manage and deal in and with real and personal
property.
(d) Construct, alter, maintain and repair buildings and other
improvements to real property.
(e) Purchase, lease, obtain options upon, acquire by gift,
bequest, devise or otherwise, any real or personal property or any
interest therein.
(f) Sell, lease, exchange, convey, transfer, assign, encumber,
pledge, dispose of any of its real or personal property or any
interest therein, including without limitation all or any portion of
its income or revenues from membership fees paid or payable by
members.
(g) Do all other acts incidental to the foregoing or necessary or
expedient for the administration of its affairs and the attainment of
its purposes.
Pursuant to those powers enumerated in subdivisions (a) to (g),
inclusive, it is recognized that the State Bar has authority to raise
revenue in addition to that provided for in Section 6140 and other
statutory provisions. The State Bar is empowered to raise that
additional revenue by any lawful means, including, but not limited
to, the creation of foundations or not-for-profit corporations.
The State Bar shall conspicuously publicize to its members in the
annual dues statement and other appropriate communications, including
its Web site and electronic communications, that its members have
the right to limit the sale or disclosure of member information not
reasonably related to regulatory purposes. In those communications
the State Bar shall note the location of the State Bar's privacy
policy, and shall also note the simple procedure by which a member
may exercise his or her right to prohibit or restrict, at the member'
s option, the sale or disclosure of member information not reasonably
related to regulatory purposes. On or before May 1, 2005, the State
Bar shall report to the Assembly and Senate Committees on Judiciary
regarding the procedures that it has in place to ensure that members
can appropriately limit the use of their member information not
reasonably related to regulatory purposes, and the number of members
choosing to utilize these procedures.
No law of this state restricting, or prescribing a mode of
procedure for the exercise of powers of state public bodies or state
agencies, or classes thereof, including, but not by way of
limitation, the provisions contained in Division 3 (commencing with
Section 11000), Division 4 (commencing with Section 16100), and Part
1 (commencing with Section 18000) and Part 2 (commencing with Section
18500) of Division 5, of Title 2 of the Government Code, shall be
applicable to the State Bar, unless the Legislature expressly so
declares. Notwithstanding the foregoing or any other law,
pursuant to Sections 6026.7 and 6026.11, the State Bar is subject to
the California Public Records Act (Chapter 3.5 (commencing
with Section 6250) of Division 7 of Title 1 of the Government Code)
and the Bagley-Keene Open Meeting Act (Article 9 (commencing with
Section 11120) of Chapter 1 of Part 1 of Division 3 of Title 2 of the
Government Code).
SEC. 2. Section 6026.5 of the Business
and Professions Code is amended to read:
6026.5. Every Pursuant to Section 6026.7,
every meeting of the board shall be open to the public except
those meetings, or portions thereof, relating to:
(a) Consultation with counsel concerning pending or prospective
litigation.
(b) Involuntary enrollment of active members as inactive members
due to mental infirmity or illness or addiction to intoxicants or
drugs.
(c) The qualifications of judicial appointees, nominees, or
candidates.
(d) The appointment, employment or dismissal of an employee,
consultant, or officer of the State Bar or to hear complaints or
charges brought against such employee, consultant, or officer unless
such person requests a public hearing.
(e) Disciplinary investigations and proceedings, including
resignations with disciplinary investigations or proceedings pending,
and reinstatement proceedings.
(f) Appeals to the board from decisions of the Board of Legal
Specialization refusing to certify or recertify an applicant or
suspending or revoking a specialist's certificate.
(g) Appointments to or removals from committees, boards, or other
entities.
(h) Joint meetings with agencies provided in Article VI of the
California Constitution.
SEC. 3. Section 6026.7 of the Business
and Professions Code is repealed.
6026.7. The board shall ensure that its open meeting
requirements, as described in Section 6026.5, are consistent with,
and conform to, the Bagley-Keene Open Meeting Act (Article 9
(commencing with Section 11120) of Division 3 of Title 2 of the
Government Code).
SEC. 4. Section 6026.7 is added to the
Business and Professions Code , to read:
6026.7. The State Bar is subject to the Bagley-Keene Open Meeting
Act (Article 9 (commencing with Section 11120) of Chapter 1 of Part
1 of Division 3 of Title 2 of the Government Code) and all meetings
of the State Bar are subject to the Bagley-Keene Open Meeting Act.
SEC. 5. Section 6026.11 is added to the
Business and Professions Code , to read:
6026.11. The State Bar is subject to the California Public
Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7
of Title 1 of the Government Code) and all public records and
writings of the State Bar are subject to the California Public
Records Act.
SEC. 6. Section 6060.2 of the Business
and Professions Code is amended to read:
6060.2. All investigations or proceedings conducted by the State
Bar concerning the moral character of an applicant 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) unless the applicant, in writing,
waives the confidentiality. However, the records of the proceeding
may be subject to lawfully issued subpoenas.
SEC. 7. Section 6086.1 of the Business
and Professions Code is amended to read:
6086.1. (a) (1) Subject to subdivision (b), and except as
otherwise provided by law, hearings and records of original
disciplinary proceedings in the State Bar Court shall be public,
following a notice to show cause.
(2) Subject to subdivision (b), and except as otherwise provided
by law, hearings and records of the following matters shall be
public:
(A) Filings for involuntary inactive enrollment or restriction
under subdivision (a), (c), (d), or (e) of Section 6007.
(B) Petitions for reinstatement under Section 6078.
(C) Proceedings for suspension or disbarment under Section 6101 or
6102.
(D) Payment information from the Client Security Fund pursuant to
Section 6140.5.
(E) Actions to cease a law practice or assume a law practice under
Section 6180 or 6190.
(b) All disciplinary investigations are confidential until the
time that formal charges are filed and all investigations of matters
identified in paragraph (2) of subdivision (a) are confidential until
the formal proceeding identified in paragraph (2) of subdivision (a)
is instituted. These investigations shall not be disclosed
pursuant to any state law, including, but not limited to, the
California Public Records A ct (Chapter 3.5 (commencing
with Section 6250) of Division 7 of Title 1 of the
Government Code). This confidentiality requirement may be
waived under any of the following exceptions:
(1) The member whose conduct is being investigated may waive
confidentiality.
(2) The Chief Trial Counsel or President of the State Bar may
waive confidentiality, but only when warranted for protection of the
public. Under those circumstances, after private notice to the
member, the Chief Trial Counsel or President of the State Bar may
issue, if appropriate, one or more public announcements or make
information public confirming the fact of an investigation or
proceeding, clarifying the procedural aspects and current status, and
defending the right of the member to a fair hearing. If the Chief
Trial Counsel or President of the State Bar for any reason declines
to exercise the authority provided by this paragraph, or disqualifies
himself or herself from acting under this paragraph, he or she shall
designate someone to act in his or her behalf. Conduct of a member
that is being inquired into by the State Bar but that is not the
subject of a formal investigation shall not be disclosed to the
public.
(3) The Chief Trial Counsel or his or her designee may waive
confidentiality pursuant to Section 6044.5.
(c) Notwithstanding the confidentiality of investigations, the
State Bar shall disclose to any member of the public so inquiring,
any information reasonably available to it pursuant to subdivision
(o) of Section 6068, and to Sections 6086.7, 6086.8, and 6101,
concerning a member of the State Bar which is otherwise a matter of
public record, including civil or criminal filings and dispositions.
SECTION 1. SEC. 8. Section 6086.15
of the Business and Professions Code is amended to read:
6086.15. (a) The State Bar shall issue an Annual Discipline
Report by April 30 of each year describing the performance and
condition of the State Bar discipline system, including all matters
that affect public protection. The report shall cover the previous
calendar year and shall include accurate and complete descriptions of
all of the following:
(1) The existing backlog of cases within the discipline system,
including the number of complaints as of December 31 of the preceding
year that were pending beyond six months after receipt without
dismissal, admonition, or the filing of a notice of disciplinary
charges. In addition to written complaints received by the State Bar,
the backlog of cases shall include other matters opened in the
Office of the Chief Trial Counsel and pending beyond six
months after receipt without the filing of notices of disciplinary
charges, or the initiation of other disciplinary proceedings in the
State Bar Court for the purpose of seeking the imposition of
discipline against a member of the State Bar, and tables showing time
periods beyond six months and the number in each category and a
discussion of the reason for the extended periods.
(2) The number of inquiries and complaints and their disposition.
(3) The number, average pending times, and types of matters
self-reported by members of the State Bar pursuant to subdivision (o)
of Section 6068 and subdivision (c) of Section 6086.8.
(4) The number, average pending times, and types of matters
reported by other sources pursuant to Sections 6086.7, 6086.8,
6091.1, subdivision (b) of Section 6101, and Section 6175.6.
(5) The speed of complaint handling and dispositions by type,
measured by the median and the average processing times.
(6) The number, average pending times, and types of filed notices
of disciplinary charges and formal disciplinary outcomes.
(7) The number, average pending times, and types of other matters,
including petitions to terminate practice pursuant to Section 6180
or 6190, interim suspensions and license restrictions pursuant to
Section 6007, motions to enforce a binding arbitration award,
judgment, or agreement pursuant to subdivision (d) of Section 6203,
motions to revoke probation, letters of warning, private reprovals,
admonitions, and agreements in lieu of discipline.
(8) The number, average pending times, and outcomes of complaints
involving a State Bar member who has been disbarred or who has
resigned, and is engaged in the unauthorized practice of law,
including referrals to district attorneys, city attorneys, or other
prosecuting authorities, or petitions to terminate practice pursuant
to Section 6180.
(9) The number, average pending times, and outcomes of complaints
against nonattorneys engaged in the unauthorized practice of law,
including referrals to district attorneys, city attorneys, or other
prosecuting authorities; petitions to terminate practice pursuant to
Section 6126.3; or referrals to prosecuting authorities or actions by
the State Bar pursuant to Section 6126.7.
(10) A description of the condition of the Client Security Fund,
including an accounting of payouts.
(11) An accounting of the cost of the discipline system by
function.
(b) The Annual Discipline Report shall include statistical
information presented in a consistent manner for year-to-year
comparison and shall compare the information required under
subdivision (a) to similar information for the previous three years.
(c) The Annual Discipline Report shall be presented to the Chief
Justice of California, to the Governor, to the Speaker of the
Assembly, to the President pro Tempore of the Senate, and to the
Assembly and Senate Judiciary Committees, for their consideration and
shall be considered a public document.
SEC. 9. Section 6090.6 of the Business
and Professions Code is amended to read:
6090.6. In a disciplinary proceeding, the State Bar shall have
access, on an ex parte basis, to all nonpublic court records relevant
to the competence or performance of its members ,
members, provided that these records shall remain
confidential. 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 access, for investigation and enforcement purposes,
shall not be limited by any court order sealing those records,
except a court order authorized by Section 851.6, 851.7, 851.8, or
851.85 of the Penal Code. The State Bar may disclose publicly the
nature and content of those records, including sealed records other
than those specified immediately above in this section, after notice
of intention to disclose all or a part of the records has been given
to the parties in the underlying action. A party to the underlying
action who would be adversely affected by the disclosure may serve
notice on the State Bar within 10 days of receipt of the notice of
intention to disclose the records that it opposes the disclosure and
will seek a hearing in the court of competent jurisdiction on an
expedited basis.
SEC. 2. SEC. 10. Section 6140 of the
Business and Professions Code, as amended by Section 3 of Chapter
429 of the Statutes of 2014, is amended to read:
6140. (a) The board shall fix the annual membership fee for
active members for 2016 at a sum not exceeding three hundred fifteen
dollars ($315).
(b) The annual membership fee for active members is payable on or
before the first day of February of each year. If the board finds it
appropriate and feasible, it may provide by rule for payment of fees
on an installment basis with interest, by credit card, or other
means, and may charge members choosing any alternative method of
payment an additional fee to defray costs incurred by that election.
(c) This section shall remain in effect only until January 1,
2017, and, as of that date, is repealed, unless a later enacted
statute, that is enacted before January 1, 2017, deletes or extends
that date.
SEC. 3. SEC. 11. Section 6140.16 of
the Business and Professions Code is repealed.
SEC. 4. SEC. 12. Section 6140.16 is
added to the Business and Professions Code, to read:
6140.16. (a) To align its staffing with its mission to protect
the public as provided in Section 6001.1 and to provide guidance to
the State Bar and the Legislature in allocating resources, the State
Bar shall develop and implement a workforce plan for its discipline
system and conduct a public sector compensation and benefits study.
The workforce plan and compensation study shall be used to reassess
the numbers and classifications of staff required to conduct the
activities of the State Bar's disciplinary activities.
(b) The workforce planning shall include the development and
recommendation of an appropriate backlog goal, an assessment of the
staffing needed to achieve that goal while ensuring that the
discipline process is not compromised, and the creation of policies
and procedures sufficient to provide adequate guidance to the staff
of each unit within the discipline system.
(c) In addition to the requirements in subdivisions (a) and (b),
the State Bar shall conduct a thorough analysis of its priorities and
necessary operating costs and develop a spending plan, which
includes its fund balances, to determine a reasonable amount for the
annual membership fee that reflects its actual or known costs and
those to implement its workforce plan.
(d) The State Bar shall submit a report on its workforce plan and
spending plan to the Legislature by May 15, 2016, so that the plans
can be reviewed in conjunction with the bill that would authorize the
imposition of the State Bar's membership fee. The report shall be
submitted in compliance with Section 9795 of the Government Code. The
State Bar shall complete and implement its workforce plan by
December 31, 2016.
SEC. 5. SEC. 13. Section 6145 of the
Business and Professions Code is amended to read:
6145. (a) The board shall engage the services of an independent
national or regional public accounting firm with at least five years
of experience in governmental auditing for an audit of its financial
statement for each fiscal year. The financial statement shall be
promptly certified under oath by the Treasurer of the State Bar, and
a copy of the audit and financial statement shall be submitted within
120 days of the close of the fiscal year to the board, to the Chief
Justice of the Supreme Court, and to the Assembly and Senate
Committees on Judiciary.
The audit shall examine the receipts and expenditures of the State
Bar and the State Bar sections to ensure that the receipts of the
sections are being applied, and their expenditures are being made, in
compliance with subdivision (a) of Section 6031.5, and that the
receipts of the sections are applied only to the work of the
sections.
The audit also shall examine the receipts and expenditures of the
State Bar to ensure that the funds collected on behalf of the
Conference of Delegates of California Bar Associations as the
independent successor entity to the former Conference of Delegates of
the State Bar are conveyed to that entity, that the State Bar has
been paid or reimbursed for the full cost of any administrative and
support services provided to the successor entity, including the
collection of fees or donations on its behalf, and that no mandatory
dues are being used to fund the activities of the successor entity.
In selecting the accounting firm, the board shall consider the
value of continuity, along with the risk that continued long-term
engagements of an accounting firm may affect the independence of that
firm.
(b) The board shall contract with the California State Auditor's
Office to conduct a performance audit of the State Bar's operations
from July 1, 2000, to December 31, 2000, inclusive. A copy of the
performance audit shall be submitted by May 1, 2001, to the board, to
the Chief Justice of the Supreme Court, and to the Assembly and
Senate Committees on Judiciary.
Every two years thereafter, the board shall contract with the
California State Auditor's Office to conduct a performance audit of
the State Bar's operations for the respective fiscal year, commencing
with January 1, 2002, to December 31, 2002, inclusive. A copy of the
performance audit shall be submitted within 120 days of the close of
the fiscal year for which the audit was performed to the board, to
the Chief Justice of the Supreme Court, and to the Assembly and
Senate Committees on Judiciary.
For the purposes of this subdivision, the California State Auditor'
s Office may contract with a third party to conduct the performance
audit. This subdivision is not intended to reduce the number of
audits the California State Auditor's Office may otherwise be able to
conduct.
(c) Effective January 1, 2016, the board shall contract with the
California State Auditor's Office to conduct an in-depth financial
audit of the State Bar, including an audit of its financial
statement, internal controls, and relevant management practices. The
contract shall include reimbursement for the California State Auditor'
s Office for the costs of conducting the audit. The audit shall, at a
minimum, examine the revenues, expenditures, and reserves of the
State Bar, including all fund transfers. The California State Auditor'
s Office shall commence the audit no later than January 1, 2016, and
a copy of the audit shall be submitted by May 15, 2016, to the board,
the Chief Justice of the Supreme Court, and to the Assembly and
Senate Committees on Judiciary. The audit shall be submitted in
compliance with Section 9795 of the Government Code. This subdivision
shall cease to be operative January 1, 2017.
SEC. 14. Section 6168 of the Business
and Professions Code is amended to read:
6168. The State Bar may conduct an investigation of the conduct
of the business of a law corporation.
Upon such investigation, the Board of Trustees, or a committee
authorized by it, shall have power to issue subpoenas, administer
oaths, examine witnesses, and compel the production of records, in
the same manner as upon an investigation or formal hearing in a
disciplinary matter under the State Bar Act. Such investigation shall
be private and confidential, 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), except to the extent that disclosure of
facts and information may be required if a cease and desist order is
thereafter issued and subsequent proceedings are had.
SEC. 15. Section 6200 of the Business
and Professions Code is amended to read:
6200. (a) The board of trustees shall, by rule, establish,
maintain, and administer a system and procedure for the arbitration,
and may establish, maintain, and administer a system and procedure
for mediation of disputes concerning fees, costs, or both, charged
for professional services by members of the State Bar or by members
of the bar of other jurisdictions. The rules may include provision
for a filing fee in the amount as the board may, from time to time,
determine.
(b) This article shall not apply to any of the following:
(1) Disputes where a member of the State Bar of California is also
admitted to practice in another jurisdiction or where an attorney is
only admitted to practice in another jurisdiction, and he or she
maintains no office in the State of California, and no material
portion of the services were rendered in the State of California.
(2) Claims for affirmative relief against the attorney for damages
or otherwise based upon alleged malpractice or professional
misconduct, except as provided in subdivision (a) of Section 6203.
(3) Disputes where the fee or cost to be paid by the client or on
his or her behalf has been determined pursuant to statute or court
order.
(c) Unless the client has agreed in writing to arbitration under
this article of all disputes concerning fees, costs, or both,
arbitration under this article shall be voluntary for a client and
shall be mandatory for an attorney if commenced by a client.
Mediation under this article shall be voluntary for an attorney and a
client.
(d) The board of trustees shall adopt rules to allow arbitration
and mediation of attorney fee and cost disputes under this article to
proceed under arbitration and mediation systems sponsored by local
bar associations in this state. Rules of procedure promulgated by
local bar associations are subject to review by the board or a
committee designated by the board to ensure that they provide for a
fair, impartial, and speedy hearing and award.
(e) In adopting or reviewing rules of arbitration under this
section, the board shall provide that the panel shall include one
attorney member whose area of practice is either, at the option of
the client, civil law, if the attorney's representation involved
civil law, or criminal law, if the attorney's representation involved
criminal law, as follows:
(1) If the panel is composed of three members the panel shall
include one attorney member whose area of practice is either, at the
option of the client, civil or criminal law, and shall include one
lay member.
(2) If the panel is composed of one member, that member shall be
an attorney whose area of practice is either, at the option of the
client, civil or criminal law.
(f) In any arbitration or mediation conducted pursuant to this
article by the State Bar or by a local bar association, pursuant to
rules of procedure approved by the board of trustees, an arbitrator
or mediator, as well as the arbitrating association and its
directors, officers, and employees, shall have the same immunity
which attaches in judicial proceedings.
(g) In the conduct of arbitrations under this article the
arbitrator or arbitrators may do all of the following:
(1) Take and hear evidence pertaining to the proceeding.
(2) Administer oaths and affirmations.
(3) Issue subpoenas for the attendance of witnesses and the
production of books, papers, and documents pertaining to the
proceeding.
(h) Participation in mediation is a voluntary consensual process,
based on direct negotiations between the attorney and his or her
client, and is an extension of the negotiated settlement process. All
discussions and offers of settlement are 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),
and may not be disclosed in any subsequent arbitration or other
proceedings.
SEC. 16. Section 6232 of the Business
and Professions Code is amended to read:
6232. (a) The committee shall establish practices and procedures
for the acceptance, denial, completion, or termination of attorneys
in the Attorney Diversion and Assistance Program, and may recommend
rehabilitative criteria for adoption by the board for acceptance,
denial, completion of, or termination from, the program.
(b) An attorney currently under investigation by the State Bar may
enter the program in the following ways:
(1) By referral of the Office of the Chief Trial Counsel.
(2) By referral of the State Bar Court following the initiation of
a disciplinary proceeding.
(3) Voluntarily, and in accordance with terms and conditions
agreed upon by the attorney participant with the Office of the Chief
Trial Counsel or upon approval by the State Bar Court, as long as the
investigation is based primarily on the self-administration of drugs
or alcohol or the illegal possession, prescription, or nonviolent
procurement of drugs for self-administration, or on mental illness,
and does not involve actual harm to the public or his or her clients.
An attorney seeking entry under this paragraph may be required to
execute an agreement that violations of this chapter, or other
statutes that would otherwise be the basis for discipline, may
nevertheless be prosecuted if the attorney is terminated from the
program for failure to comply with program requirements.
(c) Neither acceptance into nor participation in the Attorney
Diversion and Assistance Program shall relieve the attorney of any
lawful duties and obligations otherwise required by any agreements or
stipulations with the Office of the Chief Trial Counsel, court
orders, or applicable statutes relating to attorney discipline.
(d) An attorney who is not the subject of a current investigation
may voluntarily enter, whether by self-referral or referral by a
third party, the diversion and assistance program on a confidential
basis. basis and such information 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).
Confidentiality pursuant to this subdivision shall be absolute
unless waived by the attorney.
SEC. 17. Section 6234 of the Business
and Professions Code is amended to read:
6234. Any information provided to or obtained by the Attorney
Diversion and Assistance Program, or any subcommittee or agent
thereof, shall be as follows:
(a) Confidential and this 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
confidentiality shall be absolute unless waived by the
attorney.
(b) Exempt from the provisions of Section 6086.1.
(c) Not discoverable or admissible in any civil proceeding without
the written consent of the attorney to whom the information
pertains.
(d) Not discoverable or admissible in any disciplinary proceeding
without the written consent of the attorney to whom the information
pertains.
(e) Except with respect to the provisions of subdivision (d) of
Section 6232, the limitations on the disclosure and admissibility of
information in this section shall not apply to information relating
to an attorney's noncooperation with, or unsuccessful completion of,
the Attorney Diversion and Assistance Program, or any subcommittee or
agent thereof, or to information otherwise obtained by the Office of
the Chief Trial Counsel, by independent means, or from any other
lawful source.
SEC. 18. Section 6252 of the Government
Code is amended to read:
6252. As used in this chapter:
(a) "Local agency" includes a county; city, whether general law or
chartered; city and county; school district; municipal corporation;
district; political subdivision; or any board, commission or agency
thereof; other local public agency; or entities that are legislative
bodies of a local agency pursuant to subdivisions (c) and (d) of
Section 54952.
(b) "Member of the public" means any person, except a member,
agent, officer, or employee of a federal, state, or local agency
acting within the scope of his or her membership, agency, office, or
employment.
(c) "Person" includes any natural person, corporation,
partnership, limited liability company, firm, or association.
(d) "Public agency" means any state or local agency.
(e) "Public records" includes any writing containing information
relating to the conduct of the public's business prepared, owned,
used, or retained by any state or local agency regardless of physical
form or characteristics. "Public records" in the custody of, or
maintained by, the Governor's office means any writing prepared on or
after January 6, 1975.
(f) (1) "State agency" means every state
office, officer, department, division, bureau, board, and commission
or other state body or agency, except those agencies provided for in
Article IV (except Section 20 thereof) or Article VI of the
California Constitution.
(2) Notwithstanding paragraph (1) or any other law, "state agency"
shall also mean the State Bar of California, as described in Section
6001 of the Business and Professions Code.
(g) "Writing" means any handwriting, typewriting, printing,
photostating, photographing, photocopying, transmitting by electronic
mail or facsimile, and every other means of recording upon any
tangible thing any form of communication or representation, including
letters, words, pictures, sounds, or symbols, or combinations
thereof, and any record thereby created, regardless of the manner in
which the record has been stored.
SEC. 19. Section 11121 of the
Government Code is amended to read:
11121. As used in this article, "state body" means each of the
following:
(a) Every state board, or commission, or similar multimember body
of the state that is created by statute or required by law to conduct
official meetings and every commission created by executive order.
(b) A board, commission, committee, or similar multimember body
that exercises any authority of a state body delegated to it by that
state body.
(c) An advisory board, advisory commission, advisory committee,
advisory subcommittee, or similar multimember advisory body of a
state body, if created by formal action of the state body or of any
member of the state body, and if the advisory body so created
consists of three or more persons.
(d) A board, commission, committee, or similar multimember body on
which a member of a body that is a state body pursuant to this
section serves in his or her official capacity as a representative of
that state body and that is supported, in whole or in part, by funds
provided by the state body, whether the multimember body is
organized and operated by the state body or by a private corporation.
(e) Notwithstanding subdivision (a) of Section 11121.1, the State
Bar of California, as described in Section 6001 of the Business and
Professions Code.
SEC. 20. Section 11121.1 of the
Government Code is amended to read:
11121.1. As used in this article, "state body" does not include
any of the following:
(a) State Except as provided in
subdivision (e) of Section 11121, state agencies provided for
in Article VI of the California Constitution.
(b) Districts or other local agencies whose meetings are required
to be open to the public pursuant to the Ralph M. Brown Act (Chapter
9 (commencing with Section 54950) of Part 1 of Division 2 of Title
5).
(c) State agencies provided for in Article IV of the California
Constitution whose meetings are required to be open to the public
pursuant to the Grunsky-Burton Open Meeting Act (Article 2.2
(commencing with Section 9027) of Chapter 1.5 of Part 1 of Division 2
of Title 2).
(d) State agencies when they are conducting proceedings pursuant
to Section 3596.
(e) State agencies provided for in Section 109260 of the Health
and Safety Code, except as provided in Section 109390 of the Health
and Safety Code.
(f) The Credit Union Advisory Committee established pursuant to
Section 14380 of the Financial Code.
SEC. 21. The Legislature finds and declares that
Sections 6, 7, 9, 14, 15, 16, and 17 of this act impose 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 allow the State Bar of California to fully accomplish
its objectives, including, but not limited to, its licensing,
regulatory, and disciplinary functions, it is imperative to protect
the privacy interests of those persons submitting information to the
State Bar, those applicants, members, and law corporations subject to
investigation and discipline by the State Bar, and those persons
participating in discussions and offers of settlement pursuant to
arbitration or mediation in order to ensure that any personal or
sensitive information is protected as confidential information.
SEC. 22. 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.