Proposed Amendments to the State Bar Rules, Divisions 1 and 3, Individuals not Members of State Bar.
State Bar programs for the practical training of law students, out-of-state arbitration attorneys, foreign legal consultants, registered legal services attorneys, and registered in-house counsel implement Rules of Court in Title 9, Division 4 that apply to appearances and practice by individuals who are not members of The State Bar of California. In 2006 the State Bar undertook a rules revision project to integrate the organization's more than two dozen sets of rules into a comprehensive structure of seven titles and to make the rules simpler, clearer, and more uniform. This package of proposed rules revisions continues with that effort.
Rules Governing the Practical Training of Law Students (PTLS) were adopted in 1970 and revised in 1997. The Out-of-State Attorney Arbitration Counsel (OSAAC) Program Rules were adopted in 1995 and revised in 1997. The Registered Foreign Legal Consultants Rules and Regulations were adopted in 1987 and repealed in 1993, when a new Rule of Court and new State Bar rules were adopted. Since 1993, the State Bar Rules for foreign legal consultants have been revised in 1996, 1997, and 2006. The Multijurisdictional ["MJP"] Practice Program Rules, which apply to Registered Legal Services Attorneys and Registered In-House Counsel, were adopted in 2004 and have not been revised.
Footnotes in the revised rules are citations or cross-references to other rules and are intended to be part of a Board-adopted version.
Global changes are those characteristic of all or nearly all the rules proposed for programs governing appearances and practice by nonmembers.
Economy and Sharpened Focus
Rule 1.4 states that State Bar rules do not include Rules of the Supreme Court of California or California Rules of Court that apply to the State Bar, its members, services, or programs; statutes or case law applicable to the State Bar, its members, services, or programs; or policies and procedures that relate to the internal management or operations of the State Bar. These exclusions are intended to preclude restatements that introduce potentially problematic variations and to focus on information essential to compliance with a rule. A prevalent problem is that State Bar rules that complement Rules of Court too often reiterate those rules but with variations. Rule of Court 9.42 and its companion State Bar rule illustrate this problem.
Rule of Court 9.42(d) lists in detail permissible activities of a law student who is "certified"-that is, a participant in the State Bar's program for Practical Training of Law Students. Because current rule 5 of the State Bar's program rules restates what the Rule of Court says, the proposed rule on this topic simply refers to the Rule of Court: "A certified law student may engage only in the activities permitted by Rule of Court 9.42(d) under the conditions prescribed by that rule." The proposed language is about 500 words shorter than that currently in effect.
Rule of Court 9.46(d)(2) and the complementary State Bar rule also illustrate the problem. The identical words in each rule are highlighted below.
Rule of Court 9.46(d)(2) requires an attorney applying for the Registered In-house Counsel program to "Submit to the State Bar of California a declaration signed by the attorney agreeing that he or she will be subject to the disciplinary authority of the Supreme Court of California and the State Bar of California and attesting that he or she will not practice law in California other than on behalf of the qualifying institution during the time he or she is registered in-house counsel in California, except that if so qualified, the attorney may, while practicing under this rule, simultaneously practice law as a registered legal services attorney."
Current State Bar rule 4 for registered in-house counsel requires the applicant to submit "A declaration signed by the attorney agreeing that he or she will be subject to the disciplinary authority of the Supreme Court of California and the State Bar of California and attesting that he or she will only practice law in California for a single Qualifying Institution during the time he or she practices law as Registered In-House Counsel, except that if so qualified, the attorney may, while practicing under this rule, simultaneously practice law as a Registered Legal Services Attorney.
As the highlighted text indicates, these provisions are practically identical. Proposed rule 3.371(A)(2), which would replace current rule 4, simply states that an applicant must "submit an Application for Registered In-House Counsel with the fee set forth in the Schedule of Charges and Deadlines," and a footnote references Rule of Court 9.46(d). State Bar Rule 1.24 provides that such a form and its instructions are obligatory: "When a rule refers to a form, the State Bar reserves the right to reject a form that is altered in language or structure or that is not completed and submitted according to instructions." By eliminating repetition and offloading application details to a form and its instructions, the proposed rule is reduced to half the length of the current one. Eliminating the redundancy also forecloses the possibility of arguing that the variations introduce significant inconsistencies with the Rules of Court. Changes such as these have shortened all the proposed rules.
State Bar Rule 4.16(A) provides that an Application for Admission consists of an Application for Registration, an Application for Determination of Moral Character, and an application for any required examination. As the threshold requirement of a candidate for admission, the Application for Registration establishes a record for the applicant in the Admissions system. Currently the Application for Registration is required only of candidates for admission. This requirement is proposed as an addition to the rules for certified law students, foreign legal consultants, registered legal services attorneys, and registered in-house counsel in order to create a basic Admissions record for participants in these programs, as many of those in those programs seek admission to the practice of law. For example, the Application for Registration would be required by proposed rules 3.361 for Registered Legal Services Attorney and 3.371 for Registered In-House Counsel.
The proposed rules require maintenance of a current e-mail address by certified law students [proposed rule 3.5(C)]; Foreign Legal Consultants [3.402(G)]; Registered Legal Services Attorneys [3.362(G)]; and Registered In-House Counsel [3.372(E)]. Rule of Court 9.7 and State Bar Rule 2.3(A) impose a similar requirement on members.
The proposed rules for foreign legal consultants [at rule 3.409(C)], Registered Legal Services Attorneys [at 3.365(C)], and Registered In-House Counsel [at 3.375(C)] terminate program participation upon admission to the State Bar. Although current rules contain no such provisions, the proposed changes follow past administrative practice: a member cannot participate in a program designed for non-members.
Proposed rule 3.381(H) would terminate the certificate of an out-of-state attorney temporarily permitted to act as counsel in arbitration upon the request of the attorney. Current rules do not include this possibility.
State Bar records would be public to the same extent as member records under new provisions in the proposed rules for out-of-state arbitration attorneys [rule 3.382], foreign legal consultants [rule 3.411], Registered Legal Services Attorneys [3.367], and Registered In-House Counsel [3.377].
Proposed rule 3.2(B) excludes from eligibility a person licensed to practice law in any jurisdiction. Current rules do not mention this exclusion, but it has been administrative practice. Current rule 8.5 makes failure to take the first California Bar Examination for which he or she is eligible a triggering event for termination of certification. Proposed rule 3.2(B) also makes such a failure grounds for ineligibility.
A certified law student who takes the first California Bar Examination for which he or she is eligible may ask to continue in the program until the release of examination results, even if the Notice of Certification indicates an earlier date. Proposed rule 3.8(B) eliminates the need for a request: "A student who graduates from law school during the period stated in the Notice of Law Student Certification and then takes the first California Bar Examination for which he or she is eligible may participate in the program until he or she has passed the examination and been enrolled as an active member of the State Bar."
Rule of Court 9.42(c)(2) states that the State Bar can certify those who "have graduated from law school, subject to the time period limitations specified in the rules adopted by the Board of Governors." Current rules 3.2 and 8.0 implement this provision, 8.6 providing for such graduates obliquely in allowing participation until "the July 31 following the first General Bar Examination for which the Certified Student is eligible if the exam occurs in winter, or the Dec. 31 following the first General Bar Examination for which the Certified Student is eligible if the exam occurs in summer." Proposed rule 3.2(A)(2) considers an applicant eligible for the program if he or she has graduated from law school within six months of applying and has registered for the next California Bar Examination.
There are two new requirements in the proposed rules. Proposed 3.5(E) provides that a certified law student may not claim to be a member of the State Bar, a requirement also imposed on nonmember attorneys who may practice under limited circumstances. And proposed 3.3(A)(2)(b) and 3.5(C) require that an applicant submit a current e-mail address and then maintain it. This requirement provides staff an alternative means of reaching participants, who have changed mailing addresses with relative frequency.
The reporting requirements for Registered Legal Services Attorneys and Registered In-House Counsel have been broadened to require a participant to provide not only the reports required of a member by the State Bar Act but by "any legal authority" Current rules require an MJP attorney to comply with reporting requirements "imposed upon members of the State Bar of California under the State Bar Act, including, but not limited to, those required under California Business and Professions Code, sections 6068(o) and 6086.8(c)." The proposed rules require a participant to report "any information required by the State Bar Act, such as that required by sections 6068(o) and 6086.8(c) of the California Business and Professions Code, or by other legal authority."
Rules of Court 9.45(c)(2) and 9.46(c)(2) require that those applying to be Registered Legal Services Attorneys and Registered In-House Counsel "Register with the State Bar of California and file an Application for Determination of Moral Character." The State Bar's current companion rule states that "The moral character review will be conducted by the Committee of Bar Examiners pursuant to the provisions of Rule X of the Rules Regulating Admission to Practice Law in California." Because Rule X has been repealed and superseded by a revised State Bar rule, the proposed rules simply state that an applicant must "meet State Bar requirements for acceptable moral character."
Rules of Court 9.45(f) and 9.46(g) provide that the State Bar may set initial and annual registration fees for Registered Legal Services Attorneys and Registered In-House Counsel. Current rule 11 for each State Bar program provides that registration is revoked and reinstatement not permitted upon failure to submit an annual report and renewal fee. Proposed 3.364(B) for Registered Legal Services Attorneys and 3.374(B) for Registered In-House Counsel suspend registration for noncompliance but allow reinstatement upon compliance. This provision also allows Registered In-House Counsel suspended for failure to meet an annual MCLE requirement to be reinstated upon compliance. (Registered Legal Services Attorneys do not have an annual MCLE requirement. Rule of Court 9.45(e) permits them to practice no more than three years, and 9.45(c)(8) requires that they satisfy an MCLE requirement in their first year in the program.)
Appeal of Suspension
The proposed rules for Registered Legal Services Attorneys and Registered In-House Counsel provide that "Appeal of a suspension is subject to the disciplinary procedures of the State Bar." Current rules do not include a provision for appeal.
Proposed 3.403(C) provides that evidence of security for claims arising from errors or omissions "may be a certificate of insurance, a letter of credit, a written guarantee, or a written agreement executed by the applicant." Although current 4.2 allows for a self-guarantee as part of the application, current 6.0 fails to include the self-guarantee as one of the means of proving security. The proposals clarify that a self-guarantee, "a written agreement executed by the applicant," is an acceptable way to provide evidence of security.
To adopt amendments to the State Bar Rules, Divisions 1 and 3, Individuals not Members of State Bar.
Board Committee on Regulation and Admission
January 10, 2010
The State Bar of California
180 Howard Street
San Francisco, CA 94105