The State Bar seeks public comment regarding a proposed rule regarding a fingerprinting requirement for active licensed attorneys under the recent amendments to Business and Professions Code section 6054, effective Jan. 1, 2018. Before implementation, the rule would be submitted to the California Supreme Court for approval.
Deadline: 5 p.m. Dec. 26, 2017
Proposed California Rule of Court Regarding Fingerprinting of Attorneys
On Oct. 20, 2017, Tani G. Cantil-Sakauye, Chief Justice of California, sent a letter to State Bar President Michael Colantuono and Executive Director Leah Wilson, regarding Senate Bill (“SB”) No. 36’s recent amendment to section 6054 authorizing the State Bar to require attorneys to submit or resubmit fingerprint records to the California Department of Justice (“DOJ”) in order to receive subsequent arrest notification for these individuals. The full text of section 6054, as amended by SB 36, is as follows:
(a) State and local law enforcement and licensing bodies and departments, officers and employees thereof, and officials and attachés of the courts of this state shall cooperate with and give reasonable assistance and information, including the providing of state summary criminal history information and local summary criminal history information, to the State Bar of California or any authorized representative thereof, in connection with any investigation or proceeding within the jurisdiction of the State Bar of California, regarding the admission to the practice of law or discipline of attorneys or their reinstatement to the practice of law.
(b) The State Bar of California shall require that an applicant for admission or reinstatement to the practice of law in California, or may require a member to submit or resubmit fingerprints to the Department of Justice in order to establish the identity of the applicant and in order to determine whether the applicant or member has a record of criminal conviction in this state or in other states. The information obtained as a result of the fingerprinting of an applicant or member shall be limited to the official use of the State Bar in establishing the identity of the applicant and in determining the character and fitness of the applicant for admission or reinstatement, and in discovering prior and subsequent criminal arrests of an applicant, member, or applicant for reinstatement. The State Bar shall notify the Department of Justice about individuals who are no longer members and applicants who are denied admission to the State Bar within 30 days of any change in status of a member or denial of admission. All fingerprint records of applicants admitted or members reinstated, or provided by a member, shall be retained thereafter by the Department of Justice for the limited purpose of criminal arrest notification to the State Bar.
(c) The State Bar shall request from the Department of Justice subsequent arrest notification service, as provided pursuant to Section 11105.2 of the Penal Code, for applicants to, and members of, the State Bar.
(d) If required to be fingerprinted pursuant to this section, a member of the State Bar who fails to be fingerprinted may be enrolled as an inactive member pursuant to rules adopted by the board of trustees.
(e) The State Bar shall report to the Supreme Court and the Legislature by March 15, 2018, regarding its compliance with the requirements of this section.
While section 6054 authorizes the State Bar to require submission or resubmission of attorney fingerprints to the DOJ, it does not obligate the State Bar to do so. The statute is also silent in regard to how the State Bar may implement attorney fingerprinting requirements, including with respect to a compliance timeframe and who should bear the costs associated with the processing and furnishing of these submissions. The statute also removes language mandating that the State Bar bear costs associated with the processing of applicant fingerprints.
The Supreme Court’s Oct. 20, 2017, letter obligates the State Bar to require attorney submission of fingerprints to the DOJ. It states: “requiring fingerprints of all applicants and active members is a critical component of public protection and strengthens the State Bar’s discipline system.” In its letter, the Court directs the State Bar "to consider and present to the [C]ourt any proposed court rules that may be appropriate to facilitate implementation of the fingerprinting requirement for all State Bar applicants and all active attorney members."
Pursuant to the Supreme Court’s direction, State Bar staff drafted a proposed court rule requiring all active licensed attorneys to submit or resubmit fingerprints to the DOJ. The proposed rule also includes a timeframe for compliance with this requirement and a requirement that licensed attorneys bear all costs associated with fingerprint submission.
For an in-depth discussion of the proposed rule and the State Bar’s analysis of its anticipated operational impact, please refer to the Board of Trustees’ Nov. 3, 2017, meeting agenda item and attachments.
On Nov. 3, 2017, the Board of Trustees approved staff’s recommendation to authorize a 45 day public comment period for a proposed court rule to implement a fingerprinting requirement for active licensed attorneys
Following the public comment period, the proposed rule and any comments received will be reviewed by the Board of Trustees during its Jan. 25-28, 2018 meeting. Upon recommendation from the Board of Trustees, the proposed rule would then be forwarded to the California Supreme Court.
The proposed rule states:
1. Licensed Attorney Fingerprinting
Each active licensed attorney of the State Bar for whom the State Bar does not currently have fingerprint images shall, pursuant to the procedure identified by the State Bar, submit fingerprint images to the Department of Justice for the purpose of obtaining criminal offender record information regarding state and federal level convictions and arrests. Inactive licensed attorneys for whom the State Bar does not have fingerprint images must submit fingerprint images to the Department of Justice prior to seeking active status.
The State Bar shall request from the Department of Justice subsequent arrest notification service for its active licensed attorneys, pursuant to Business and Professions Code section 6054.
2. Implementation Schedule
The Board of Trustees of the State Bar must develop a schedule for implementation of subsection (a) that requires all active licensed attorneys for whom the State Bar does not have fingerprint images to submit fingerprints to the Department of Justice by Dec. 1, 2019.
3. Fingerprint Submission and Processing Costs
All costs of providing criminal history information to and the processing of fingerprints for, the State Bar, including print furnishing and encoding, as required by section 6054, shall be borne by the licensed attorney.
The State Bar will cover the DOJ and FBI processing costs for licensed attorneys who have been granted a fee scaling or fee waiver for annual membership fees pursuant to State Bar Rule 2.15(A) or 2.16(C)(3)(c). These attorneys will pay for all third party print furnishing costs.
See the Board of Trustees’ Nov. 3, 2017, meeting agenda item.
Attachments 1 through 5
Board of Trustees
5 p.m. Dec. 26, 2017
To submit your comments, please use the online public comment form.
Alternatively, written comments may be sent to:
Fingerprinting Rule Public Comment
Office of General Counsel
180 Howard St.
San Francisco, CA 94105