HB4686 94TH GENERAL ASSEMBLY

LRB094 16708 LCT 51978 b

94TH GENERAL ASSEMBLY
State of Illinois
2005 and 2006
HB4686

Introduced 1/12/2006, by Rep. Marlow H. Colvin

SYNOPSIS AS INTRODUCED:

New Act
30 ILCS 105/5.663 new

Creates the Legal Document Preparer Act. Establishes the Board of Legal Document Preparers and outlines its duties and powers. Sets out the services that may be provided by a legal document preparer. Provides for disciplinary actions. Provides for a code of conduct for legal document preparers. Creates the Legal Document Preparer Fund as a special fund in the State treasury and provides that, subject to appropriation, all moneys in the Fund shall be used to further the objectives of the Act. Amends the State Finance Act to list the Fund as a special fund. Effective immediately.

FISCAL NOTE ACT MAY APPLY

A BILL FOR

An ACT concerning legal document preparers.

Be it enacted by the People of the State of Illinois, represented in the General Assembly:

Section 1. Short title. This Act may be cited as the Legal Document Preparer Act.

Section 5. Purpose. The Illinois Supreme Court has inherent regulatory power over all persons providing legal services to the public regardless of whether they are lawyers or nonlawyers. The Court recognizes, however, that the need to protect the public from possible harm caused by nonlawyers providing legal services must be balanced against the public's need for access to legal services. Accordingly, this Act is intended to: (i) protect the public through the use of legal document preparers to ensure conformance to the highest ethical standards and performance of responsibilities in a professional and competent manner, in accordance with all applicable statutes and court rules; and (ii) result in the effective administration of the Legal Document Preparer Program.

Section 10. Definitions. As used in this Act:

"Board" means the Board of Legal Document Preparers appointed by the Chief Justice of the Supreme Court.

"Day" means any calendar day except Saturday, Sunday, or a federal or State holiday.

"Director" means the Director of the Administrative Office of the Illinois Courts (AOIC).

"Formal charges" means the document setting forth specific acts of misconduct by a legal document preparer or violations of this Act, including any amendments, authorized by the Board upon a determination of probable cause.

"Formal disciplinary proceedings" means filing of formal charges specifying misconduct by a legal document preparer.

"Hearing officer" means an individual appointed pursuant to this Act to preside over an administrative hearing regarding a complaint regarding alleged misconduct of a certificate holder.

"Informal disciplinary proceedings" means resolution of a complaint prior to the filing of formal charges.

"Legal document preparer" means an individual who prepares or provides legal documents, without the supervision of an attorney, for an entity or a member of the public who is engaging in self-representation in any legal matter. An individual whose assistance consists merely of secretarial or receptionist services is not a legal document preparer.

"Letter of concern" means a communication from the Board notifying the legal document preparer of the Board's determination the concerning whether the legal document preparer has violated a provision of this Act and that informal discipline is appropriate. A letter of concern is not appealable.

"Program Coordinator" means the staff appointed by the Director to administer the program.

Section 15. Responsibilities of the Supreme Court. The Supreme Court shall:

(1) Adopt rules for the implementation and administration of the program. At a minimum, the rules shall include a code of conduct and minimum qualifications.

(2) Establish and collect fees, costs, and fines necessary for the implementation and enforcement of the program.

(3) Establish a Legal Document Preparer Fund consisting of monies received for fees, costs, and fines.

Section 20. Responsibilities of the Program Coordinator. The Program Coordinator, designated by the Director, shall:

(1) Forward all fees, costs, and fines imposed and received pursuant to this Act to the State Treasurer for deposit into the Legal Document Preparer Fund.

(2) Provide updates to the Board and make recommendations regarding matters pertaining to complaints, investigations, and all other matters relevant to legal document preparers.

(3) Maintain a list of legal document preparers. The Program Coordinator shall distribute the list to the Supreme Court and make it available to the public.

The Program Coordinator may charge for the costs of providing copies of the list or any other public records of the program pursuant to the Rules of the Supreme Court.

Section 25. Board of Legal Document Preparers.

(a) The Board of Legal Document Preparers shall be established and shall consist of the following 11 members:

(1) five legal document preparers who have each worked as a legal document preparer for at least 5 years;

(2) the Director or the Director's designee;

(3) one judge or court administrator;

(4) one clerk of the circuit court or his or her designee;

(5) one attorney; and

(6) two public members not affiliated with any lawyer, judge, legal document preparer, or court system.

(b) The Chief Justice of the Supreme Court shall appoint Board members to initial terms of one, 2, and 3 years. Thereafter, all terms shall be 3 years. If a vacancy occurs in a Board member position, the Chief Justice shall fill the vacancy expeditiously in the manner provided for in the original appointment.

(c) The Board shall:

(1) make recommendations to the Supreme Court regarding rules, policies, and procedures to implement and enforce the requirements regarding legal document preparers, including administrative fees, a code of conduct, continuing education, and any other matter pertaining to legal document preparers;

(2) direct the Program Coordinator to conduct investigations into alleged violations of this Act by legal document preparers; and

(3) adjudicate and make all final decisions regarding alleged violations by legal document preparers pursuant to Section 55 of this Act.

Section 30. Authorized services. A legal document preparer may:

(1) prepare or provide legal documents, without the supervision of an attorney, for an entity or a member of the public in any legal matter when that entity or person is not represented by an attorney;

(2) provide general legal information, but may not provide any kind of specific advice, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, or strategies;

(3) provide general factual information pertaining to legal rights, procedures, or options available to a person in a legal matter when that person is not represented by an attorney;

(4) make legal forms and documents available to a person who is not represented by an attorney; and

(5) file and arrange for service of legal forms and documents for a person in a legal matter when that person is not represented by an attorney.

Section 35. Designated business principal. The designated principal of a business entity shall:

(1) prepare and submit, with the initial business application, a list of all legal document preparers acting for or on behalf of the business entity;

(2) file with the Program Coordinator, by June 30 of each year, a list of all legal document preparers acting for or on behalf of the business entity as of June 1 of that year;

(3) actively and directly supervise all other legal document preparers and staff working for the business entity; and

(4) represent the business entity, at the discretion of the entity, in any proceeding under this Act.

Section 40. Code of conduct. Each legal document preparer shall adhere to the code of conduct provided for in Section 95 of this Act and any code of conduct set forth in Supreme Court Rules.

Section 45. Identification. Beginning July 1, 2007, a legal document preparer shall include the legal document preparer's name and the title "Illinois Legal Document Preparer" or the abbreviation "ILLDP" on all documents prepared by the legal document preparer that are filed in any Illinois court.

Section 50. Notification of changes. A legal document preparer shall inform the Program Coordinator, in writing, of any change in name, address, employment, or phone number within 30 days after the change occurs.

Section 55. Grounds for discipline. A legal document preparer is subject to disciplinary action if the Board finds that the legal document preparer has:

(1) willfully violated or willfully failed to comply with applicable laws, court orders, orders of the Board, or provisions of the Illinois Supreme Court Rules or with this Act;

(2) violated or failed to discharge any obligation required by this Act;

(3) exhibited gross negligence or incompetence in the performance of his or her duties as a legal document preparer;

(4) engaged in fraud, dishonesty, or corruption;

(5) aided or assisted another person to engage in independent preparation of legal documents if the other person is not a legal document preparer;

(6) been convicted by final judgment of a felony offense or any other offense involving moral turpitude; or

(7) been the subject of court-ordered treatment pursuant to the Mental Health and Developmental Disabilities Code or been found to be incapacitated pursuant to the Probate Act of 1975.

Section 60. Cease and desist order. A hearing officer or a circuit court judge, upon petition by the Board, may enter an order for an individual to immediately cease and desist from conduct that constitutes engaging in the practice of legal document preparation.

Section 65. Subpoenas; oaths; evidence.

(a) For the purposes of investigations or hearings under this Act, the Board or a hearing officer may administer oaths and affirmations, subpoena witnesses, take evidence, and require the production of documents, records, or information, whether kept in original form or electronically stored or recorded, or other items relevant or material to the inquiry.

(b) If a person fails to obey a subpoena issued pursuant to this Section, the Board or a hearing officer may request that the circuit court issue an order that requires the appearance by a person or the production of documents or other items, or both to the same extent as provided in the subpoena. The court may treat the failure to obey the order as contempt of court and may punish the contempt.

(c) Subpoenas shall be issued in the same manner and served as provided by the Code of Civil Procedure.

Section 70. Immunity. Persons appointed by the Supreme Court to serve in an advisory capacity to the Legal Document Preparer Program, staff of the Legal Document Preparer Program, hearing officers, and employees of the Administrative Office of the Illinois Courts who participate in the Legal Document Preparer Program are immune from civil liability for good faith conduct that relates to the performance of their official duties under the program.

Section 75. Confidentiality. The Board, program staff, and court employees shall keep information or documents obtained or generated by the Board, program staff, or court employees in the course of an open investigation under this Act or received in an initial report of misconduct under this Act confidential except as mandated by public record rules adopted by the Supreme Court or adopted pursuant to this Act. Upon determination by the Board, if the alleged violations are sufficiently serious to warrant the filing of formal charges, then the complaint and all records of proceedings and actions by the Board pertaining to the complaint shall be open to public inspection. Documents relating to other actions shall be open to public inspection upon final disposition of the action by the Board.

Section 80. Service. The Board shall serve notice of formal proceedings by personal service upon the legal document preparer or the legal document preparer's counsel or by certified mail, return receipt requested, to the legal document preparer's address of record with the Board. Service by mail is complete upon deposit in the United States mail. Proof of service shall be made by filing with the hearing officer a verified statement that service was made. Delivery of all other papers or notices, including a request for a response to a complaint, shall be made by first class mail unless otherwise ordered by the Board.

Section 85. Complaint.

(a) All judicial officers or their designees and all legal document preparers shall, and any other person may, notify the Program Coordinator if they have personal knowledge that a legal document preparer has violated this Act. A complainant shall make the complaint in writing with sufficient specificity to warrant further investigation. The complaint shall include the name and telephone number of the complainant.

(b) On receipt of a complaint, the Program Coordinator and program staff shall investigate and prosecute, and the Board shall adjudicate, alleged violations of this Act as necessary for the enforcement of this Act. The Board may initiate a complaint on its own motion.

Section 90. Judicial review. All final administrative decisions of the Board pursuant are subject to judicial review under Article III of the Code of Civil Procedure and its rules. The term "administrative decision" is defined as in Section 3-101 of the Code of Civil Procedure. Proceedings for judicial review shall be commenced in the circuit court of any county permitted by Section 3-104 of the Code of Civil Procedure.

Section 95. Code of conduct.

(a) Preamble. This code of conduct shall apply to all legal document preparers in this State. The purpose of this code is to establish minimum standards for performance by legal document preparers.

(b) Ethics.

(1) A legal document preparer shall avoid impropriety and the appearance of impropriety in all activities, shall respect and comply with the laws, and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the legal and judicial systems.

(2) A legal document preparer shall be alert to situations that are conflicts of interest or that may give the appearance of a conflict of interest.

(3) A legal document preparer shall promptly make full disclosure to a consumer of any relationships that may give the appearance of a conflict of interest.

(4) A legal document preparer shall refrain from knowingly making misleading, deceptive, untrue, or fraudulent representations while assisting a consumer in the preparation of legal documents. A legal document preparer shall not engage in unethical or unprofessional conduct in any professional dealings that are harmful or detrimental to the public.

(c) Professionalism.

(1) A legal document preparer shall treat information received from the consumer as confidential, yet recognize and acknowledge that the privilege of confidential communications is not extended to legal document preparers.

(2) A legal document preparer shall be truthful and accurate when advertising or representing the legal document preparer's qualifications, skills, or abilities or the services provided, and shall refrain from denigrating or otherwise calling into disrepute the products or services offered by any other legal document preparer or attorney.

(3) A legal document preparer shall maintain and observe the highest standards of integrity and truthfulness in all professional dealings.

(4) A legal document preparer shall keep abreast of current developments in the law as it relates to legal document preparation and shall fulfill ongoing training requirements to maintain professionalism and the skills necessary to perform his or her duties competently.

(d) Fees and services.

(1) A legal document preparer shall, upon request of a consumer at any time, disclose in writing an itemization of all rates and charges to that consumer.

(2) A legal document preparer shall determine fees independently, except when otherwise established by law, entering into no unlawful agreements with other legal document preparers on the fees to any consumer.

(3) A legal document preparer shall at all times be aware of and avoid impropriety or the appearance of impropriety, which may include, but is not limited to:

(A) establishing contingent fees as a basis of compensation;

(B) directly or indirectly receiving any gift, incentive, reward, or anything of value as a condition of the performance of professional services; or

(C) directly or indirectly offering to pay any commission or other consideration in order to secure professional assignments.

(4) A legal document preparer may consult with, associate with, collaborate with, and involve other professionals in order to assist the consumer.

(e) Skills and practice.

(1) A legal document preparer shall provide completed documents to a consumer in a timely manner. The legal document preparer shall make a good faith effort to meet promised delivery dates and make timely delivery of documents when no date is specified. A legal document preparer shall meet document preparation deadlines in accordance with rules, statutes, court orders, or agreements with the parties. A legal document preparer shall provide immediate notification of delays.

(2) A legal document preparer shall accept only those assignments for which the legal document preparer's level of competence will result in the preparation of an accurate document. The legal document preparer shall decline an assignment when the legal document preparer's abilities are inadequate.

(f) Performance in accordance with law.

(1) A legal document preparer shall perform all duties and discharge all obligations in accordance with applicable laws, rules, or court orders.

(2) A legal document preparer shall not represent that he or she is authorized to practice law in this State, nor shall the legal document preparer provide legal advice or services to another by expressing opinions, either verbal or written, or by representing another in a judicial, quasi-judicial, or administrative proceeding, or other formal dispute resolution process, except as directed by the Supreme Court Rules or this Act. A legal document preparer shall not attend court with a consumer for the purpose of assisting the consumer in the court proceeding, unless otherwise ordered by the court.

(3) A legal document preparer shall not provide any kind of advice, opinion, or recommendation to a consumer about possible legal rights, remedies, defenses, options, or strategies. This shall not, however, preclude a legal document preparer from providing the types of information permitted in Section 30 of this Act. A legal document preparer shall inform the consumer in writing that a legal document preparer is not a lawyer, is not employed by a lawyer, and cannot give legal advice and that communications with a legal document preparer are not privileged. A legal document preparer shall not use the designations "lawyer", "attorney at law", "counselor at law", "law office", "J.D.", "Esq.", or other equivalent words, the use of which is reasonably likely to induce others to believe the legal document preparer is authorized to engage in the practice of law in this State.

Section 100. Fund. The Legal Document Preparer Fund is created as a special fund in the State treasury. Subject to appropriation by the General Assembly, all moneys in the Legal Document Preparer Fund shall be used to further the objectives of this Act.

Section 900. The State Finance Act is amended by adding Section 5.663 as follows:

(30 ILCS 105/5.663 new)

Sec. 5.663. The Legal Document Preparer Fund.

Section 999. Effective date. This Act takes effect upon becoming law.