Proposed California Rule of Court Regarding Fingerprinting Licensed Attorneys

The State Bar seeks public comment regarding a proposed California Supreme Court rule implementing a fingerprinting requirement for licensed attorneys pursuant to the recent amendments to Business and Professions Code section 6054, effective Jan. 1, 2018.

Deadline: 5 p.m. March 3, 2018

Background

The State Bar circulated a proposed rule for public comment from Nov. 9, 2017 through Dec. 26, 2017. Over 2,600 public comments were received.

The State Bar has amended the proposed rule and is circulating the amended proposal for a 30-day public comment period.

Discussion

On Nov. 3, 2017, the Board of Trustees authorized a 45-day public comment period for a proposed California Supreme Court rule implementing a fingerprinting requirement for active licensed attorneys pursuant to recent amendments to Bus. & Prof. Code § 6054, effective Jan. 1, 2018. Over 2,600 public comments were received. The full text of the public comments is available online.

For an in-depth discussion of the public comments and the State Bar’s responses, please refer to the Board of Trustees’ Jan. 27 meeting agenda item and attachments.

Upon review of the public comments, as well as further internal analysis, staff made changes to the proposed rule. The proposed changes to the rule do not impact the purpose of the rule, which is to require licensed attorneys to be fingerprinted and to pay the fingerprint processing and furnishing costs in connection therewith.

Proposal

On Jan. 27, 2018, the Board of Trustees approved staff’s recommendation to authorize an additional 30-day public comment period for a proposed court rule to implement a fingerprinting requirement for licensed attorneys.

The Board of Trustees also delegated authority to staff to add language requiring re-fingerprinting for certain attorneys admitted to practice law in California pursuant to California Rule of Court Rule 9.44 (registered foreign legal consultant); Rule 9.45 (registered legal services attorney) and Rule 9.46 (registered in-house counsel). Attorneys admitted pursuant to these Rules must pass a State Bar moral character determination and either agree to abide by all of the laws and rules that govern attorneys of the State Bar (Rules 9.45-9.46) or agree to be subject to the disciplinary jurisdiction of the State Bar (Rule 9.44).

Following the public comment period, the amended proposed rule and any comments received will be reviewed by the Board of Trustees during its March 8-9, 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

  1.  Subsequent Arrest Notification: The State Bar shall enter into a contract with the California Department of Justice for Subsequent Arrest Notification services for licensed active California attorneys and attorneys permitted to practice in the State of California pursuant to California Rule of Court Rules 9.44, 9.45 and 9.46.

    (i) The State Bar is already receiving Subsequent Arrest Notification services for some attorneys. The State Bar will consider these attorneys as having already satisfied the fingerprinting requirement of this rule and are thereby exempt. The State Bar shall notify all attorneys to check their My State Bar Profile for information as to whether they have been deemed to have already satisfied the requirement.

  2. Active Licensed Attorneys: Each active licensed attorney, with the exception of those attorneys specifically exempt under subsection 1(a)(i), shall, pursuant to the procedure identified by the State Bar, be fingerprinted for the purpose of obtaining criminal offender record information regarding state and federal level convictions and arrests.

  3. Inactive Licensed Attorneys: Inactive licensed attorneys, with the exception of those attorneys specifically exempt under subsection 1(a)(i), shall, pursuant to the procedure identified by the State Bar, be fingerprinted prior to being placed on active status.

  4. Active Licensed Attorneys in Foreign Countries: Active licensed attorneys who are residing outside the United States and required to submit fingerprints under this Rule should have their fingerprints taken by a licensed fingerprinting service agency and submit the hard copy fingerprint card to the State Bar. If fingerprinting services are not provided in the jurisdiction that the attorney is physically located, the attorney must notify the State Bar using a form available through the attorney’s My State Bar Profile. Such attorney will be exempt from providing fingerprints until he or she returns to the United States, provided, that within 60 days of returning (even temporarily) to the United States, such attorney shall be fingerprinted.

2. Implementation Schedule

The Board of Trustees of the State Bar must develop a schedule for implementation that requires all attorneys required to be fingerprinted under section 1(b) to be fingerprinted by December 1, 2019.

The State Bar has ongoing authority to require re-fingerprinting after December 1, 2019 for attorneys for whom it is not receiving subsequent arrest notification services and for attorneys transferring to inactive status. Failure to be re-fingerprinted if required may result in involuntary inactive enrollment pursuant to Business and Professions Code section 6054(d).

The State Bar has authority to require re-fingerprinting after December 1, 2019, for attorneys permitted to practice in the State of California pursuant to California Rule of Court Rules 9.44, 9.44, and 9.46 for whom it is not receiving subsequent arrest notification services. Failure to be re-fingerprinted if required may result in a State Bar determination that the attorney cease providing legal services in California.

3. Information Obtained by Subsequent Arrest Notification; Limitations on Disclosure

Any information obtained by the State Bar through the Subsequent Arrest Notification System shall be confidential and shall be used solely for State Bar licensing and regulatory purposes.

4. Fingerprint Submission and Processing Costs

Except as described in 4(a), 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.

  1. The Board of Trustees of the State Bar must develop procedures for granting waivers of the processing costs of running DOJ and FBI background checks for licensed attorneys with demonstrable financial hardship.

5. Attorneys Who are Physically Unable to be Fingerprinted

  1. If the DOJ makes a determination pursuant to California Penal Code section 11105.7 that the attorney is presently unable to provide legible fingerprints, the attorney will have been deemed to have complied with the requirement of Section 1.

  2. Attorneys may also submit notification to the State Bar directly through their My State Bar Profile that they are unable to submit fingerprints due to disability, illness, accident, or other circumstances beyond their control. The State Bar will evaluate the notification and may require additional evidence. If the State Bar determines that the attorney is unable to submit fingerprints based on the information provided, the attorney will have been deemed to have complied with the requirement of section 1(b).

  3. This section shall only apply to those persons who are unable to supply legible fingerprints due to disability, illness, accident, or other circumstances beyond their control and does not apply to persons who are unable to provide fingerprints because of actions they have taken to avoid submitting their fingerprints.

Any known fiscal/personnel impact

See Attachment A: Jan. 28, 2017 Board of Trustees Agenda Item, Number 704

Attachments

Source

Board of Trustees

Deadline

5 p.m. March 3, 2018

Direct comments to

To submit your comments, please use the online public comment form. [Link removed; this comment process is archived.]  Alternatively, written comments may be sent to:

Office of General Counsel
180 Howard St.
San Francisco, CA 94105
FP.Public.Comment@calbar.ca.gov