Untitled California Attorney General Opinion ( 2023 )

TO BE PUBLISHED IN THE OFFICIAL REPORTS
OFFICE OF THE ATTORNEY GENERAL
State of California
ROB BONTA
Attorney General
_______________
:
OPINION :
: No. 22-602
of :
: May 25, 2023
ROB BONTA :
Attorney General :
:
KARIM J. KENTFIELD :
Deputy Attorney General :
The HONORABLE PHILLIP CHEN, MEMBER OF THE CALIFORNIA
ASSEMBLY, has requested an opinion on a question relating to the State Bar of
California and the regulation of legal document assistants.
QUESTION PRESENTED AND CONCLUSION
May the Legislature enact a statute authorizing the State Bar of California to
regulate non-attorney legal document assistants?
Yes. The Legislature may enact a statute authorizing the State Bar to regulate
legal document assistants.
BACKGROUND
California law authorizes non-attorney professionals known as legal document
assistants to provide certain services to individuals who are representing themselves in
legal matters. 1 Under Business and Professions Code section 6400 et seq., legal
1
Bus. & Prof. Code, § 6400, subd. (c)(1); see generally 1 Witkin, California Procedure
(6th ed. 2023) Attorneys, § 406 (Legal Document Assistants). The chapter of the
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document assistants may “[c]omplet[e] legal documents” for a self-represented person
“by typing or otherwise completing the documents at the person’s specific direction.” 2
Legal document assistants may also file and “serv[e] legal forms and documents at the
[client’s] specific direction”; make available “published legal documents”; and provide
“general published factual information that has been written or approved by an attorney,
pertaining to legal procedures, rights, or obligations.” 3 Legal document assistants may
perform these services without affiliating with an attorney. 4 But they may not “[e]ngage
in the unauthorized practice of law”: they are prohibited from “giving any kind of
advice, explanation, opinion, or recommendation to a consumer about possible legal
rights, remedies, defenses, options, selection of forms, or strategies.” 5
Legal document assistants must register with the “county clerk in the county in
which their principal place of business is located, and in which they maintain a branch
office.” 6 To register as a legal document assistant, an individual must satisfy several
eligibility requirements, pay an application fee, and either post a liability bond or deposit
the cash equivalent. 7 If the county clerk denies registration, the applicant may appeal the
decision to the Director of the state Department of Consumer Affairs. 8 After registering,
legal document assistants must comply with other statutory mandates—including
completion of continuing legal education requirements, use of a standardized written
contract with clients, and periodic registration renewal. 9 The relevant statutes direct the
Department of Consumer Affairs to implement some of these requirements. 10
Business and Professions Code regulating the activities of legal document assistants is
scheduled to be repealed on January 1, 2024. (Bus. & Prof. Code, § 6401.7.)
2
Bus. & Prof. Code, § 6400, subds. (c)(1), (d)(1).
3
Bus. & Prof. Code, § 6400, subd. (d)(2)-(4).
4
Compare Bus. & Prof. Code, § 6450, subd. (a) (paralegals “work under the direction
and supervision of an” attorney).
5
Bus. & Prof. Code, § 6411, subd. (e); see also id., §§ 6401.6, 6400, subd. (g).
6
Bus. & Prof. Code, § 6402.
7
Bus. & Prof. Code, §§ 6402.1, 6404, 6405.
8
See Bus. & Prof. Code, §§ 6406, subds. (d)-(f), 23.5, 150; Cal. Code Regs., tit. 16,
§§ 3910, subd. (d), 3920, 3930, 3940.
9
See Bus. & Prof. Code, §§ 6402.2, 6406, subd. (a), 6410.
10
See Bus. & Prof. Code, § 6402 (registration application); id., § 6410 (standardized
written contract); see Cal. Code Regs., tit. 16, §§ 3900, 3950 (Department of Consumer
Affairs regulations implementing these requirements).
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The State Bar of California is a public corporation within the judicial branch
whose mission is to protect the public by regulating the legal profession. 11 Attorneys
practicing law in California must generally be members of the Bar, known as “licensees.”
In “matters of admission and discipline of attorneys,” the Bar serves “as an administrative
arm of” the California Supreme Court, providing recommendations subject to final
judicial approval. 12 In addition to regulating licensees, the Bar regulates the authorized
practice of law in the State by non-licensees—such as law students, law corporations, and
attorneys licensed in other states. 13 It also plays an important role in investigating and
policing the unauthorized practice of law by non-licensees. 14
The Bar oversees certain other activities related to the legal system as well.
Relevant here, the Bar regulates non-attorney service providers who refer potential clients
to attorneys. 15 Like legal document assistants, these lawyer-referral services do not
practice law; their activities are related to legal practice, as they direct members of the
public to specific legal service providers. The Business and Professions Code requires
lawyer-referral services to register with the State Bar and satisfy statutory requirements
regarding cost of services and ownership, among others. 16 It also directs the Bar to
formulate and enforce regulations to implement the statutory requirements. 17
Under current law, the Bar does not have express statutory authority to register,
supervise, or otherwise regulate legal document assistants (except with respect to legal
document assistants who engage in the unauthorized practice of law). This opinion
request questions whether the Legislature has the power to enact legislation granting the
11
See The State Bar of California, Our Mission: What We Do,
https://www.calbar.ca.gov/About-Us/Our-Mission (as of May 22, 2023); Cal. Const., art.
VI, § 9; Bus. & Prof. Code, § 6001.
12
Saleeby v. State Bar (1985) 39 Cal.3d 547, 557, internal quotation marks omitted.
13
See Bus. & Prof. Code, §§ 6160-6172; Cal. Rules of Court, rules 9.40-9.49.1; Rules of
State Bar, rules 3.1-3.10, 3.150-3.161, 3.350-3.411.
14
The Bar’s Chief Trial Counsel “may initiate and conduct investigations” of unlicensed
attorneys practicing law in the State. (Bus. & Prof. Code, §§ 6044, subd. (b), 6125.) The
Bar may also move the superior court to assume jurisdiction over unauthorized law
practices. (Bus. & Prof. Code, § 6126.3, subd. (b).)
15
See Bus. & Prof. Code, §§ 6155-6156.
16
See Bus. & Prof. Code, § 6155, subds. (a), (b).
17
See Bus. & Prof. Code, § 6155, subd. (f). The Bar has promulgated regulations in
these areas, which have been approved by the California Supreme Court. (See Rules of
State Bar, rules 3.800-3.829.)
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Bar such authority. For its part, the State Bar has submitted a comment letter explaining
its position that the Legislature does possess that power. 18
ANALYSIS
To determine whether the Legislature may validly authorize the Bar to regulate
legal document assistants, we begin by considering the scope of legislative power in
California. “Unlike the federal Constitution, which is a grant of power to Congress, the
California Constitution is a limitation or restriction on the powers of the Legislature.” 19
As a result, “the California Legislature possesses plenary legislative authority except as
specifically limited by the California Constitution.” 20 In other words, “‘we do not look to
the Constitution to determine whether the Legislature is authorized to do an act, but only
to see if it is prohibited.’” 21 Unless the state Constitution “positively and certainly” limits
legislative power in this area, the Legislature may validly vest the Bar with authority to
regulate legal document assistants. 22
In examining whether any such limitation exists, we first consider the
constitutional provision most specifically on point. Although the Bar was first created by
statute in 1927, the voters amended the judicial article of the California Constitution in
1960 to “declare the State Bar a constitutional body.” 23 Article VI, section 9, provides
that: “The State Bar of California is a public corporation. Every person admitted and
licensed to practice law in this State is and shall be a member of the State Bar except
while holding office as a judge of a court of record.”
We see nothing in the text of article VI, section 9 that would prevent the
Legislature from granting the Bar authority to regulate legal document assistants.
18
See The State Bar of California, letter to Deputy Attorney General Karim J. Kentfield,
Jan. 10, 2023 (State Bar Comment).
19
Methodist Hosp. of Sacramento v. Saylor (1971) 5 Cal.3d 685, 691.
20
Marine Forests Soc’y v. California Coastal Com. (2005) 36 Cal.4th 1, 31, original
italics; see, e.g., 76 Ops.Cal.Atty.Gen. 145, 147 (1993) (given its plenary authority, the
Legislature has the power to create “a regional public agency comprised of appointed
commissioners with the duty to make land use decisions”).
21
Methodist Hosp. of Sacramento v. Saylor, supra, 5 Cal.3d at p. 691.
22
Howard Jarvis Taxpayers Assn. v. Padilla (2016) 62 Cal.4th 486, 520; see id. at p. 521
(“[A]ll intendments favor the exercise of the Legislature’s plenary authority: If there is
any doubt as to the Legislature’s power to act in any given case, the doubt should be
resolved in favor of the Legislature’s action”), internal quotation marks omitted.
23
In re Att’y Discipline Sys. (1998) 19 Cal.4th 582, 590, 598.
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Although section 9 requires licensed attorneys to be members of the Bar, it does not state
that regulating licensed attorneys is the Bar’s sole function. Nor would such a restrictive
reading be consistent with the Bar’s longstanding authority: as described above, the Bar
already regulates other entities that do not practice law—specifically, entities providing
lawyer-referral services. 24
The enactment history of article VI, section 9 likewise reveals no intention to limit
the Bar’s jurisdiction. The provision was added as part of a broader constitutional
revision that authorized the Bar to appoint members to two entities: the Judicial Council
and the Commission on Judicial Qualifications. 25 Both entities were “created by the
State Constitution.” 26 Given the Bar’s new role in appointing members to these
constitutional bodies, the ballot materials for section 9 stated that it was “advisable” to
“giv[e] the State Bar, which is now a statutory entity, the status of a constitutional body
too.” 27 But nothing in the ballot materials suggested that elevating the Bar to
constitutional status was intended to limit the Bar’s jurisdiction or prevent the Legislature
from vesting it with additional regulatory authority. To the contrary, the ballot materials
emphasized that the Legislature would “continue to have power to regulate the
administration of the State Bar by statute as it now does.” 28
24
Cf. Davis v. City of Berkeley (1990) 51 Cal.3d 227, 239 (“practices uniformly followed
by public entities over many years” entitled to deference in constitutional analysis).
25
In re Att’y Discipline Sys., supra, 19 Cal.4th at p. 598. The Judicial Council “is the
policymaking body of the California courts.” (California Courts, Judicial Council,
https://www.courts.ca.gov/policyadmin-jc.htm (as of May 22, 2023); see Cal. Const., art.
VI, § 6.) The Commission on Judicial Qualifications, now called the Commission on
Judicial Performance, “is the independent state agency responsible for investigating
complaints of judicial misconduct and judicial incapacity and for disciplining judges.”
(State of California Commission On Judicial Performance, https://cjp.ca.gov (as of May
22, 2023); see Cal. Const., art. VI, § 8.)
26
In re Att’y Discipline Sys., supra, 19 Cal.4th at p. 598.
27
Ibid. (considering ballot materials in construing article VI, section 9).
28
Ibid. We similarly find a subsequent constitutional amendment to be of no relevance
here. As originally enacted in 1960, article VI, section 9 began: “The State Bar of
California is a public corporation with perpetual existence and succession.” (Cal. Const.,
art. VI, § 9 (1960), italics added.) In 1966, the voters excised the italicized words, which
were believed to be unnecessary because “all constitutional bodies exist until the
Constitution is amended.” (Cal. Const. Revision Com., Proposed Revision (1966) p. 89;
see Mosk v. Superior Ct. (1979) 25 Cal.3d 474, 481 [“The 1966 revision was part of an
overall policy of the Constitution Revision Commission to eliminate unnecessary
language and to state the substance of existing sections more concisely and in modern
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Looking beyond article VI, section 9, we have not identified any other
constitutional provision or principle that would prevent the Legislature from vesting the
State Bar with regulatory oversight of legal document assistants. We first consider
constitutional limitations on the Legislature’s ability to delegate power to an agency. 29
“An unconstitutional delegation of authority occurs only when a legislative body
(1) leaves the resolution of fundamental policy issues to others or (2) fails to provide
adequate direction for the implementation of that policy.” 30 The “purpose of the doctrine
. . . is to assure that truly fundamental issues [will] be resolved by the Legislature and that
a grant of authority” is “accompanied by safeguards adequate to prevent its abuse.” 31
We see no reason why the legislation posited by this request would necessarily
exceed the limitations on the Legislature’s power to delegate. As described above,
existing statutes that govern legal document assistants detail a number of regulatory
requirements, then delegate further implementation authority to the Department of
Consumer Affairs. If the Legislature chose to move oversight authority to the State Bar,
it could similarly resolve fundamental issues—such as eligibility requirements for legal
document assistants—in the statute itself, then authorize the Bar to implement those
requirements. Indeed, that is the very approach the Legislature has taken for lawyer-
referral services. 32
We also see no reason why vesting the State Bar with authority to regulate legal
document assistants would violate the constitutional principle of separation of powers.
The California Constitution provides that the “powers of state government are legislative,
executive, and judicial. Persons charged with the exercise of one power may not exercise
either of the others except as permitted by this Constitution.” 33 The “primary purpose” of
the separation-of-powers doctrine “is to prevent the combination” of the “fundamental
powers of government” “in the hands of a single person or group.” 34
terms”].)
29
See State Bar Comment, at p. 4 (arguing that the non-delegation doctrine would not
prevent the Legislature from delegating regulatory authority to the Bar here).
30
Kasler v. Lockyer (2000) 23 Cal.4th 472, 491-492; see also Carson Mobilehome Park
Owners’ Assn. v. City of Carson (1983) 35 Cal.3d 184, 190; 76 Ops.Cal.Atty.Gen, supra,
at pp. 151-152.
31
Kugler v. Yocum (1968) 69 Cal.2d 371, 376, internal quotation marks omitted.
32
See Bus. & Prof. Code, § 6155, subd. (f); Rules of State Bar, rules 3.800-3.829.
33
Cal. Const., art. III, § 3.
34
Davis v. Mun. Ct. (1988) 46 Cal.3d 64, 76; see 86 Ops.Cal.Atty.Gen. 146, 148 (2003).
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California courts have not interpreted the separation-of-powers doctrine to require
“the rigid classification of all the incidental activities of government, with the result that
once a technique or method of procedure is associated with a particular branch of the
government, it can never be used thereafter by another.” 35 Rather, although “the powers
of the three branches are to be kept largely separate,” the Constitution “also comprehends
the existence of common boundaries between the legislative, judicial, and executive
zones of power.” 36 So, for example, “both executive and judicial officials routinely
exercise quasi-legislative authority in . . . promulgating general rules for the governing of
affairs within their respective spheres.” 37 And executive agencies may “exercise . . .
quasi-judicial” power in performing adjudicative functions. 38
The California Supreme Court has previously addressed claims that the
Legislature violated the separation of powers by regulating the State Bar and the practice
of law. In those cases, the Court has held that the Legislature may not encroach on the
judiciary’s “inherent authority over the practice of law,” including attorney admission
and discipline, but it may “impose reasonable regulations” on legal practice. 39 Applying
these principles, the Court has upheld statutes that regulated the Bar’s role in admitting
and disciplining attorneys by concluding that, in those areas, the Bar serves as “an
administrative assistant to” the Court—empowered only to make recommendations
35
Davis v. Mun. Ct., supra, 46 Cal.3d at p. 76, italics omitted; see also In re Att’y
Discipline Sys., supra, 19 Cal.4th at p. 602 (separation-of-powers jurisprudence is
“pragmatic” and “does not command a hermetic sealing off of the three branches of
Government from one another”), internal quotation marks omitted.
36
Hustedt v. Workers’ Comp. Appeals Bd. (1981) 30 Cal.3d 329, 338.
37
Davis v. Mun. Ct., supra, 46 Cal.3d at p. 76.
38
McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 361, internal
quotation marks omitted; see also Davis v. Mun. Ct., supra, 46 Cal.3d at p. 76 (“‘From
the beginning, each branch has exercised all three kinds of powers’”).
39
In re Att’y Discipline Sys., supra, 19 Cal.4th at pp. 598-599, 602; see id. at p. 602 (“‘In
the field of attorney-client conduct, . . . the judiciary and the Legislature are in some
sense partners in regulation’”); Brydonjack v. State Bar of Cal. (1929) 208 Cal. 439, 443.
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subject to final judicial approval. 40 In contrast, the Court has invalidated legislation that
stripped the courts of final authority over attorney admission or discipline decisions. 41
In our view, the separation-of-powers concern identified in these authorities—
legislative intrusion into core functions of the judiciary—is not implicated here.
Although legal document assistants provide services to individuals representing
themselves in legal matters, they do not themselves practice law. 42 Unlike attorneys, they
are not “officer[s] of the court” subject to a centuries-long tradition of judicial
supervision. 43 We are aware of no authority suggesting that regulation of legal document
assistants would encroach on any inherent power of the article VI courts. 44
40
Saleeby v. State Bar, supra, 39 Cal.3d at p. 557; see, e.g., In re Rose (2000) 22 Cal.4th
430, 441-442 (Legislature did not violate separation of powers by authorizing State Bar
Court to conduct attorney disciplinary proceedings and issue recommendations because
the Supreme Court retained ultimate decision-making authority); see also In re Att’y
Discipline Sys., supra, 19 Cal.4th at p. 602 (Legislature may promulgate qualification
standards for the Bar to apply in attorney admissions only if the Supreme Court retains
ultimate authority to augment or override those standards).
41
See, e.g., Hustedt v. Workers’ Comp. Appeals Bd., supra, 30 Cal.3d at pp. 339-340
(Legislature violated separation of powers by authorizing the Workers’ Compensation
Appeals Board to discipline attorneys practicing before the Board with only a limited
avenue for judicial review); In re Lavine (1935) 2 Cal.2d 324, 329 (Legislature violated
separation of powers by requiring readmission of attorneys who were pardoned after
disbarment for felony convictions).
42
See Bus. & Prof. Code, § 6411, subd. (e).
43
In re Att’y Discipline Sys., supra, 19 Cal.4th at pp. 592-593; see id. at p. 593 (“‘The
important difference between regulation of the legal profession and regulation of other
professions is this: Admission to the bar is a judicial function, and members of the bar
are officers of the court . . . . Hence, . . . the court has inherent and primary regulatory
power’”), italics omitted.
44
For attorney-referral services, the Legislature has required that any regulations issued
by the Bar be approved by the Supreme Court. (See Bus. & Prof. Code, § 6155, subd. (f)
[directing the Bar to “formulate and enforce rules and regulations” concerning attorney-
referral services, but only “[w]ith the approval of the Supreme Court”].) The State Bar
suggests that the Legislature could similarly require Supreme Court approval of Bar
regulations concerning legal document assistants. (See State Bar Comment, at p. 4.)
Although we are not aware of any authority requiring this approach, providing for
Supreme Court review would further minimize any separation-of-powers concerns.
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Nor are legal document assistants so far removed from the practice of law and the
judicial system that it would be improper for the Legislature to require the Bar—located
within the judicial branch—to regulate them. 45 The California Supreme Court has
considered analogous concerns in other contexts. For example, the Court has held that
legislation requiring judges to draft titles for initiative measures was unconstitutional
because it “purport[ed] to confer nonjudicial duties on . . . appellate justices.” 46 By
contrast, in Kasler v. Lockyer, the Court rejected a separation-of-powers challenge to
legislation requiring superior court judges to determine, outside of ordinary litigation,
whether a specified firearm should be classified as an assault weapon. 47 The Court
explained that the Legislature “may delegate to the Judicial Branch nonadjudicatory
functions that do not trench upon the prerogatives of another Branch and that are
appropriate to the central mission of the Judiciary.” 48
The reasoning of Kasler is instructive here. We do not see why the Bar’s
regulation of legal document assistants would “trench upon the prerogatives of another
Branch” of California Government—assuming, as discussed above, that the Legislature
resolves the “fundamental” issues of regulatory policy and provides the Bar “adequate
direction for the implementation of that policy.” 49 Regulating legal document assistants
45
See In re Rose, supra, 22 Cal.4th at p. 438 (the State Bar is “placed within the judicial
article of the California Constitution” and is “expressly acknowledged as an integral part
of the judicial function”).
46
Epperson v. Jordan (1938) 12 Cal.2d 61, 64; see also Abbott v. McNutt (1933) 218 Cal.
225 (invalidating county charter provision requiring local superior court judges to serve
on a “qualification board” that recruited and nominated candidates for a county executive
position). In both Epperson and Abbott, the Court rested its decision on article VI,
former section 18 (now section 17), which prohibits California judges from holding any
other public office or employment during their judicial tenure. (See Kasler v. Lockyer,
supra, 23 Cal.4th at pp. 495-496 [describing the separation-of-powers concerns
underlying article VI, section 17].)
47
Kasler v. Lockyer, supra, 23 Cal.4th at pp. 491-498. The statute authorized the
Attorney General to file a petition with the superior court requesting a declaration that a
specific firearm was an assault weapon due to its similarity to other firearms.
48
Id. at p. 493, quoting Mistretta v. United States (1989) 488 U.S. 361, 388. In Mistretta,
the United States Supreme Court rejected a separation-of-powers challenge to the
involvement of federal judges in the promulgation of the federal sentencing guidelines by
the U.S. Sentencing Commission, an agency within the judicial branch of the federal
government.
49
Kasler v. Lockyer, supra, 23 Cal.4th at pp. 491-493.
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could also be “appropriate to the central mission of the Judiciary.” 50 Although legal
document assistants may not practice law, they perform some of the same activities as
attorneys, such as completing legal documents and filing them in court. 51 And oversight
of legal document assistants may involve regulating the boundary between their
permissible activities and the impermissible practice of law—a boundary that the
Legislature has already granted the Bar a role in supervising. 52
Finally, the comment letter submitted by the Bar suggests that there may be a
narrow separation-of-powers concern related to the decision to grant or deny registration
to legal document assistants, but it notes that any such concern could be addressed by
providing for judicial review of registration decisions. 53 In support, the Bar points to the
California Supreme Court’s decision in McHugh v. Santa Monica Rent Control Board. 54
There, the Court noted that the State’s decision to grant or revoke a professional license
can sometimes qualify as “judicial” or “quasi-judicial” in nature. 55 An agency may
nevertheless make individual licensing decisions without exercising judicial power, the
Court explained, “so long as appropriate judicial review [is] available.” 56 To the extent
the Bar’s registration decisions under the statute contemplated here would implicate this
line of authority, we agree with the Bar that the Legislature could avoid any separation-
of-powers concern by providing an appropriate avenue for judicial review. 57
For these reasons, we conclude that the Legislature may validly provide statutory
authorization for the Bar to regulate legal document assistants.
50
Id. at p. 493.
51
See Bus. & Prof. Code, § 6400, subd. (d)(1), (4).
52
See Bus. & Prof. Code, §§ 6044, subd. (b), 6125, 6126.3, subd. (b); see also Baron v.
City of Los Angeles (1970) 2 Cal.3d 535, 543 (“ascertaining whether a particular activity”
constitutes the practice of law “may be a formidable endeavor”).
53
See State Bar Comment, at p. 4.
54
McHugh v. Santa Monica Rent Control Bd., supra, 49 Cal.3d at p. 361.
55
Ibid., internal quotation marks omitted.
56
Ibid.; see, e.g., Laisne v. State Bd. of Optometry (1942) 19 Cal.2d 831, 840; Drummey
v. State Bd. of Funeral Directors & Embalmers (1939) 13 Cal.2d 75, 84-85.
57
Of course, any separation-of-powers concern under McHugh is not specific to the Bar,
but would apply equally to any agency tasked with adjudicating legal document assistant
registration applications.
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