Commercial Litigation and Arbitration

The Virtual Practice of Law — California Plaintiff May Recover Fees for Work of Out-of-State Lawyer Engaged by California Counsel — Everyone Practices Everywhere vs. Birbrower

From Winterrrowd v. Am. Gen. Annuity Ins. Co., 2009 U.S. App. LEXIS 2899 (9th Cir. Feb. 17, 2009):

Even at a time when the largest law firms in the United States were composed of not many more than one hundred lawyers, Judge Friendly observed that we live in an "age of increased specialization and high mobility of the bar." Spanos v. Skouras, 364 F.2d 161, 170 (2d Cir. 1966). But in 1966, there were no personal computers, no Internet, no Blackberries, no teleconferencing, no emails, and the only person who had a two-way wrist radio was cartoon character Dick Tracy. Today, largely because of the benefits of modern technology, hundreds of U.S.-based law firms are composed of many hundreds, or even thousands, of lawyers and support personnel contemporaneously doing business in many states and throughout the world. Lawyers throughout the United States regularly participate in teleconferences and group email sessions with other lawyers in other states, and lawyers and paralegals from one or more firms participate in massive discovery projects arising out of a single case concerning papers and data located in several states. In many such instances, only a small fraction of the lawyers involved in a case are members of the bar of the state where the presiding court sits. Current law does not compel us to be judicial Luddites, and we may properly accommodate many of the realities of modern law practice, while still securing to federal courts the ability to control and discipline those who practice before them.

The district court's order, dated October 21, 2004, determined that the Winterrowd plaintiffs were entitled to reasonable attorneys fee's under Cal. Lab Code § 218.5 as a matter of law. However, based on its reading of Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Ct. of Santa Clara County, 17 Cal. 4th 119, 70 Cal. Rptr. 2d 304, 949 P.2d 1 (1998), the court held that the Winterrowd plaintiffs could not recover fees for the work of attorney Wheatley, Sr., due to his alleged violation of the "State Bar Act or the Central District Local Rules."

Admissions rules and procedure for federal court are independent of those that govern admission to practice in state courts. In re Poole, 222 F. 3d 618, 620-22 (9th Cir. 2000) ("[A]s nearly a century of Supreme Court precedent makes clear, practice before federal courts is not governed by state court rules."); see also Birbrower, 17 Cal. 4th at 130 ("The [State Bar] Act does not regulate practice before United States courts."). This is true even "when admission to a federal court is predicated upon admission to the bar of the state court of last resort." In re Poole, 222 F.3d at 620.

***Since all litigation in this case took place in federal court, Birbrower is inapposite. ***The present case is clearly distinguishable from Birbrower. The activities of the Birbrower firm constituted the practice of law in California because it entered into a retainer agreement with a client in California to provide legal services there and its attorneys came to California for that purpose. By contrast, Wheatley, Sr. did not enter into a retainer agreement with the Winterrowd plaintiffs. Instead, the member of the California State Bar whom they retained entered into an agreement with Wheatley, Sr. to provide him with assistance in prosecuting an action against the defendants, who, as it happens, asserted a meritless defense under federal law, namely, ERISA preemption. Thus, the case turned more on that issue than any issue regarding California law. Moreover, the services at issue here were performed entirely in Oregon.

Perhaps of even more significance is that the arrangement between Wheatley, Sr. and the California lawyer who retained him is closely analogous to a partnership. Indeed, it was for all practical purposes a partnership for the purpose of prosecuting the case against AGAIC. Birbrower suggested that fees would have been awarded for the practice of law engaged in California by the out-of-state members of the firm if a "firm attorney engaged in that practice was an active member of the California State Bar." Id. at 131. *** While we discuss the considerations of policy that would have justified a different outcome in Birbrower, if one of the members of the firm was admitted in California, we think it clear that Wheatley, Sr. would be entitled to be compensated under California Labor Code § 218.5.

***Here, the record shows that Wheatley, Sr. is a member in good standing of the Oregon State Bar, has forty-five years of civil trial and appellate experience, served as President of the Oregon State Bar in 1993-94, is a fellow of the American College of Trial Lawyers, and has been listed in The Best Lawyers in America since 1977. As in Spanos, there has been "no suggestion of any unlawyerlike conduct on his part." 364 F.2d at 168. Nor do Defendants-Appellees offer any reasons why Wheatley, Sr. would not have been admitted pro hac vice. ***

The Winterrowd plaintiffs can still recover fees for Wheatley, Sr.'s work, however, because his conduct did not rise to the level of "appearing" before the district court. This court has permitted fee recovery for the work of paralegals, database managers, legal support, summer associates, and even attorneys who have yet to pass the bar. Nat'l Res. Def. Council, Inc. v. Winter, 543 F.3d 1152 (9th Cir. 2008). These participants in the legal process do not "appear" before the district court, as they do not argue cases or sign briefs. They are nevertheless an integral part of the litigation process.

Wheatley, Sr.'s role was similar to such litigation support or consultants, and distinguishable from an "appearance."

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