Winterrowd v. American General Annuity Insurance

Winterrowd; management. Yurkus; Giv- Neil report rant a to senior Kevin evidence, Gregory Stopp, en that I would hold that a rea- Plaintiffs- Appellees, jury only could have concluded sonable jour- that Fuller would have learned of the v. nal, investigation instigated Scott Annuity American General Insurance and reached the same conclusion even Co., Corporation; a Texas Patrick Brown, prompting without and there- Grady; Corpo- The Western National fore Scott’s termination would have oc- Security Plan, ration Job Defendants- protect- curred “even in the absence of the Appellants. Gilbrook, ed conduct.” See 177 F.3d at 07-56541, Nos. 07-56711. 855. Appeals, United States Court of sum, I jury’s would reverse the ver- Ninth Circuit. two, one, part part dict under Healthy burden-shifting Mt. framework on Argued and Submitted Nov. 2008. that, grounds pre- on the facts based Filed Feb. sented, investigation Fuller’s hence —and Scott’s termination —was inevitable. Such holding acknowledges the deference we

must afford to a reasonable decision

jury, placing great avoids too evi-

dentiary on a plaintiff seeking burden

vindicate her First rights. Amendment reasons,

For all I concur in these

judgment, majority opinion. but not in the WINTERROWD; Yurkus;

Neil Kevin

Gregory Stopp, Plaintiffs-

Appellants,

AMERICAN GENERAL ANNUITY IN CO., Corporation;

SURANCE a Texas Grady; does, inclusive;

Patrick 1-10 Corporation

The Western National Security Plan, Defendants-Appel

Job

lees.

Before: PAMELA ANN RYMER and SMITH, JR., MILAN D. Judges, Circuit KORMAN,* and EDWARD R. District Judge. SMITH, JR.,

MILAN D. Circuit Judge: We appeal consider this whether the Plaintiffs can attorney’s recover gen- erated distinguished member of the Oregon Bar who assists a member of the California Bar in litigating a case before the federal district court in the Central of, (Central. District), District (a) but who is not a member of the Califor- (b) Bar, nia not physically does appear (c) District, before the Central does not sign pleadings the case before the Cen- (d) District, tral has minimal contact with clients, his and no direct op- contact with (e) case, posing counsel in the super- Jr., by Wheatley, vised an attorney who is licensed to practice law in California and is person responsible who alone remained (f) Plaintiffs, to the and is not admitted hac vice in connection with the case before District, the Central but no evidence in the record shows that he would not have rou- tinely been so admitted applied. had he Wheatley, Jr., William G. Law Offices of We hold that can Plaintiffs recover CA, Wheatley, Jr., Mar, G. Del William respect issue, such fees. With to this we (argued), Jaqua William G. remand, reverse and respect with OR, Wheatley, Eugene, & plaintiffs- the other issues addressed in opinion, appellants. we affirm in part, and in part. remand Conway, Catherine A. Rex S. Heinke Background Factual and Procedural Weisel, (argued), Gump Jessica M. Akin This is the third time this court has LLP, Angeles, Strauss Hauer & Feld Los appeal heard an related to this matter in CA, defendants-appellees. years litigation. almost nine Appellants Winterrowd, Yurkus,

Neil Kevin Greg- (Winterrowd ory Stopp plaintiffs) filed their complaints initial amended early asserting claims for breach of a severance contract. American General Korman, York, sitting by designation. *The Honorable Edward R. Senior District of New Judge United States District for the Eastern (AGAIC) agreed also “to plaintiffs The Winterrowd Co., al. et Annuity Insurance prejudice prepare dismissal that the Winterrowd answer in its asserted it to Defendants’ provide action and preempted entire claims were contract plaintiffs’ not to file the agree counsel. Defendants Income Retirement Employment by the the Court’s receipt their (ERISA), Dismissal until 29 U.S.C. Security Act of final decision on issue seq. et § fees.” mo- granted AGAIC’s The district next filed a plaintiffs The Winterrowd holding summary judgment,

tion for pursuant attorney’s fees motion for to the Win- issued contract severance Code, as Labor § 218.5 of the California employee benefit terrowd against for sanctions well as motion The ERISA. Winter- under covered plan an dated Octo- order AGAIC’s counsel. and on March appealed, plaintiffs rowd 20, 2004, held the district that ber court the district reversed this owed attor- plaintiffs were find- the Winterrowd summary judgment, of grant court’s light matter of law of ney’s “[i]n fees as a and re- apply, did not ing that ERISA plaintiffs’ that decision the Ninth Circuit’s further consideration for the case manded preempted by original of con- claim breach plaintiffs’ of the Winterrowd ulti- that defendant and the fact ERISA tract claims. hun- pay plaintiffs one mately agreed to plaintiffs remand, the Winterrowd After their claims.” percent dred of contract entry an of court for moved the district to applied California law The district court of con- on their breach summary judgment hourly rate the determine reasonable court denied The district claims. tract attorneys, finding plaintiffs’ Winterrowd that a materi- it found motion because that rate appropriate hour was an per that $300 respecting fact remained of dispute al record, of Wheat- for their counsel William de- mistake affirmative unilateral AGAIC’s Jr., Wheatley. The ley and for Robert later, parties en- Ten months fense. granted court also district under agreement into a settlement tered unsuccessful plaintiffs’ three Winterrowd entire pay to agreed which AGAIC summary judgment. The dis- motions for plain- by the Winterrowd claimed amount plain- the Winterrowd trict court denied $288,240.56. interest, tiffs, totaling plus against AGA- request for sanctions tiffs’ for the provided agreement The settlement IC’s counsel. in- except for those costs payment all appeal. curred in connection The court determined Wil- fees, the settle- regard Sr., to With liam admitted stated: agreement ment Oregon Bar but not Bar, attorney’s fees for could not recover the issue agree preserve parties The was before the work he did while the case fees, any, for a noticed if attorneys’ found The court Court the district court. District motion to decided be on this case Wheatley, Sr.’s “work The Court Snyder.... Judge Christine law for a with matters of California attorney’s fees dealt shall the issue decide Central Dis- claim the submitted California client’s evidence based on the he is not entitled (with reserving trict of party either affidavits that were rendered in recover for fees object) and the submitted right or the Cen- Bar Act right to violation State retains party briefs. Each Sr., attorneys’ tral District Local Rules.” or denial appeal the award was, however, to the Ninth Cir- admitted fees. Bar, granted euit and the court appeals Win- While these were pending, the plaintiffs terrowd fees for the time Wheat- district court issued a minute order on ley, spent appeal denying on the 2002-03 before November the Winterrowd plaintiffs’ motion for this court. fees for work on this case between March 2005 and October 22, 2005, February On the district court prejudice 2007 “without to its being granted plaintiffs’ the Winterrowd motion renewed after Ninth Circuit renders a entry judgment, “dismissing for an this 3, 2007, decision.” On December the Win- action, pursuant to the terms the settle- terrowd amended their notice of agreement, entering judgment ment appeal to include an appeal from this most awarding plaintiffs attorney’s fees in the recent minute order. prior amount” established in the order. plaintiffs timely appealed JURISDICTION AND STANDARD judgment on the issues of attor- OF REVIEW ney’s fees and sanctions. AGAIC cross- jurisdiction This court has under appealed. appeal pending, While that § 28 U.S.C. and reviews the amount 4, 2005, April the district court denied a by fees awarded the district 8, March 2005 motion for unclaimed attor- court for abuse of discretion. Nat’l Res. ney’s (seeking attorney’s fees from Council, Winter, Inc. v. 543 F.3d Def. 27, 2004, August original date that the 1152, (9th Cir.2008). Nevertheless 2005) filed, 7, fees motion was until March “any of legal analysis elements and statu that it stating “finds that it does not have tory interpretation figure in the dis jurisdiction any to award further attor- trict court’s decision are reviewable de neys’ plaintiffs by fees to reason of the (citation novo.” Id. quotation and internal appeal.” omitted). marks “We review for an abuse of discretion the district court’s denial of a 22, 2007, January On the Ninth Circuit motion for sanctions.” Avery Dennison Clerk’s Office remanded the case to the Co., v. Corp. Allendale Mut. Ins. 310 F.3d district court “the district court 1114, 1117(9th Cir.2002). has neither entered a final judgment dis- posing plaintiffs’ claims, underlying nor DISCUSSION attorneys certified the fee issue for inter- Attorney’s Fees for locutory pursuant review to 28 U.S.C. 1292(b) 54(b).”

§ or Fed.R.Civ.P. On Jan- largest Even a time when the 25, 2007, uary the district court issued an law firms the United States were com certifying pursu- order the case for appeal posed many of not more than one hundred 1292(b). § 12, ant to 28 April U.S.C. On lawyers, Judge Friendly observed we 2007, denied the Winterrowd live in an “age specialization of increased plaintiffs’ petition for permission appeal high mobility and Spanos bar.” 1292(b). § pursuant to 28 U.S.C. In re- Skouras, (2d Cir.1966). 364 F.2d sponse to the dismissal our But in personal there were no com district court dismissed the Winterrowd Internet, puters, Blackberries, no no no plaintiffs’ underlying against claims AGA- emails, teleconferencing, only no and the prejudice September IC with 2007. person two-way who had a wrist radio was more, Once the Winterrowd time- Tracy. Today, cartoon character Dick ly appealed and timely cross-ap- largely AGAIC because of the benefits of modern pealed. technology, hundreds of U.S.-based law hundreds, in state many govern

firms admission composed of are Poole, In re 620-22 thousands, lawyers support and courts. even Cir.2000) (“[A]s century of nearly a doing busi- contemporaneously personnel clear, precedent makes throughout Supreme Court and many states ness gov practice before federal courts is throughout the United Lawyers world. rules.”); erned state court see also participate in teleconfer- regularly States 17 Cal.4th at 70 Cal. email sessions with other group and ences (“The states, lawyers Rptr.2d Bar] 949 P.2d 1 [State lawyers in other regulate partici- more firms Act does not before Unit from one or paralegals courts.”). This is true even discovery projects arising ed States in massive pate pred admission to a federal court is concerning papers and “when single of a out many upon admission to the bar of the states. icated located several data Poole, instances, court of last resort.” In re only a small fraction of state such F.3d at 620.1 in a case are members lawyers involved presiding where the of the state the bar ad- predicated The Central District has compel does not Current law court sits. to the mission to its bar on admission Luddites, judicial and we us to be California, except State Bar of for those many of the reali- properly accommodate permitted appear pro hac vice. C.D. practice, while still ties of modern 83-2.2, already not- Cal. L.R. 93-2.3.1. As ability courts the securing to federal ed, however, In re makes clear that Poole who discipline those control local rule does not the Central District’s before them. state court rules in mean order, dated October The district court’s any way govern practice in the federal 21, 2004, Poole, determined Winterrowd court. In re 222 F.3d at 620. Since entitled to reasonable attor plaintiffs were in in litigation place all this case took § as neys under Cal. Lab Code 218.5 fee’s inapposite. federal Birbrower is However, based on its a matter of law. “inappropriately] Montalbano, Birbrower, Con reading of authority impose on state to feder- reli[ed] Frank, Superior Ct. San don & P.C. Poole, discipline” Wheatley, al on Sr. In re 119, County, 17 70 Cal. ta Clara Cal.4th 222 F.3d at 622.2 (1998), 304, P.2d 1 the court Rptr.2d Moreover, we do not read Birbrower as could plaintiffs held that the Winterrowd precluding work of not recover fees for the obtaining an award of fees for the services Sr., alleged violation due to his case, firm in that a Sr. The law Dis of the “State Bar Act or Central partnership, York we refer New whom trict Local Rules.” Birbrower, agreement as entered into an provide legal with a client California to procedure

Admissions rules and dispute of those that services in connection with a there independent federal court are Birbrower, reading contrary argue 1. Birbrower and is to this Defendants that because California subsequent notes that the Central District of court's decision in In re Poole. conditions admission to their bar on active good standing membership in the Califor Defendant’s, dissent’s, 2. and the reliance on Bar, 130, at 70 Cal. nia State 17 Cal.4th District, Z.A. v. San Bruno Park School 1, Rptr.2d 949 P.2d the California Su (9th Cir.1999) is also mis- preme implied Court that the State Bar Act placed, as Z.A. involved fees that were in- applied attorneys practicing within the proceeding. in a administrative curred state overly expansive This is an Central District. by “[p]hysical presence terms was here one a contract which its factor over deciding we consider in whether every respect by the “internal governed lawyer unlicensed has violated section Birbrow- laws of the State California.” by it er, but no means exclusive.” Id. Cal.Rptr.2d at 17 Cal.4th provide It then went on to following attorneys made 949 P.2d Birbrower example: they where repeated trips to California legal to the dis- relating

discussed matters may practice law in the state in [O]ne advice, pute, provided legal and made although violation of section 6125 not strategy physically present recommendations. Birbrower at- advising here torneys trips also made to California to California client on law in California con legal dispute the client and its accountants nection with a California meet with fax, assisting by telephone, computer, in settlement or other purpose for the technological modern means. dispute. of the Converse ly, although we decline to provide com Supreme While the Court prehensive list what activities consti conduct foregoing held that the constituted state, tute sufficient contact with the we of law even reject person do the notion that a auto though the matter for which Birbrower matically practices law “in California” proceeded litigation, retained never was person whenever that practices Califor it of first went on to address issue anywhere, “virtually” nia law enters namely, meaning of the impression, fax, e-mail, telephone, state “in phrase practice of law California” satellite. § proscribed by 6125 of the 128-29, Id. 949 P.2d and Professional California Business Code. (emphasis original). In it doing, so observed: Applying guidelines these to the view, facts “in In our of law Supreme Court of Califor- California” entails sufficient contact with nia held that Birbrower entitled the California client to render the nature “engaged counsel fees because it in unau- legal repre- service a clear thorized law quantitative sentation. addition to a California basis, more than a limited and no firm analysis, we must consider the nature of in an attorney engaged practice that was in lawyer’s the unlicensed activities active member of the California State state. Mere fortuitous or attenuated 131, 304, Cal.Rptr.2d Bar.” at 70 Id. 949 will not a that finding contacts sustain (emphasis original). P.2d 1 in Neverthe- lawyer practiced law “in the unlicensed less, fees legal while Birbrower was denied primary inquiry The California.” California, it in it for the work did was lawyer engaged whether the unlicensed permitted per- to recover for services state, in in sufficient activities 135-36, formed in New York. Id. at 70 continuing relationship a with created 304, Cal.Rptr.2d 949 P.2d the California client that included obligations. duties and clearly distinguish- present 128, at from Birbrower. The activities of the Cal.4th Cal. able firm Rptr.2d 949 P.2d 1. The Birbrower Birbrower constituted the explain on to that its law in because it entered into a Court then went California necessarily depend agreement definition “does not on retainer with a client Califor- lawyer’s physical provide legal nia to services there and its require the unlicensed Instead, presence attorneys pur- in the state.” Id. it held came to California for that 48-49, 129 P.3d 408 contrast, Cal.Rptr.3d at Wheatley, Sr. did not By pose. we discuss (emphasis original). While with the agreement into a retainer enter policy that would Instead, the considerations the mem- plaintiffs. Winterrowd justified a different outcome Bir- have they Bar whom State ber of the California brower, firm if one of the members of the agreement with into entered retained we think it was admitted him assis- provide Wheatley, to Sr. Wheatley, Sr. would be entitled clear against an action prosecuting tance in under Labor compensated to be a defendants, who, happens, it asserted as § 218.5. Code law, name- under federal defense meritless Thus, the case preemption. ly, ERISA Nevertheless, even if our view of Cali- any than issue turned more on issue incorrect, Bar Act the State fornia law is Moreover, the law. regarding California Instead, not control.3 and Birbrower do performed en- here were services issue to the Central District’s rules as we look tirely Oregon. case law to determine well as federal Wheatley, engaged in the whether significance is even more Perhaps of practice of law and whether unauthorized Wheatley, arrangement between at- recover lawyer who retained Sr. and the California torney’s fees for Sr’s work. analogous partnership. to a closely him is requires any person The Central District Indeed, purposes a practical it for all of, good standing “who is a member of purpose prosecuting partnership for before, any eligible the bar sug AGAIC. Birbrower against the case Court, highest or of the United States awarded would have been gested that fees ... any court of State and who has been engaged law Califor for the Court, appear may, retained to before this members of the by the out-of-state nia application and in the discre- upon written in that attorney engaged firm if a “firm Court, permitted appear be tion of an active member Cali practice was pro particular hac vice in a participate Id. at 70 Cal. fornia State Bar.” L.R. case.” C.D. Cal. 83-2.3.1. recently, 1. More Rptr.2d 949 P.2d Clinic, Inc., Housing Frye v. Tenderloin ways in suggests Case two P.3d 38 Cal.4th plaintiffs could able to the Winterrowd be (2006), Supreme Court of Califor work. recover Sr.’s Birbrower, “we concluded nia said that in The first is if the at issue would firm was not enti that an out-of-state law certainly permitted appear have been enforcing its client’s judgment tled he hac vice as matter of course had agreement leading a fee The circuit court obligations applied. under or she Skouras, issue, Spanos in v. services rendered case on this (2d Cir.1966) (en banc), lawyers per- were au neither firm nor its attorney an out-of-state to receive law in California.” Id. mitted thorized to regulate practice Act does not before United 3. that because California The dissent believes at applies regarding the method States Courts.” 17 Cal.4th substantive law Thus, themself, P.2d if calculating 1. of of fees California attorney apply to out-of-state services rendered an out-of-state State Bar Act should practice of as that attorneys court. Dis- do not constitute the practicing in federal sent, leap applicable under federal cognitive is not term is construed at 828-30. This Indeed, rule, he is entitled to recover his fees. supported by caselaw. then infra, page Id. We discuss this issue 823-24. [Bar] the rule that “the Birbrower reaffirmed fees for work to a in related federal his part.” 364 F.2d at 168. Nor do De- when it was court certain he would have fendants-Appellees any offer reasons why pro been admitted hac vice as a matter of Wheatley, Sr. would not have been admit- Spanos, attorney pro course. a California ted hac vice. Although this informa- (Spanos) in worked the Southern tion District leads us believe he would have most York, conjunction likely vice, New been admitted pro local hac the Cen- lawyers, on an tral antitrust matter District has arising noted situations which under federal law. disqualify qualified Id. at otherwise 167-68. Spanos attorneys spent years pro admission, several hac vice working case, on the such as when “(a) an attorney but ultimately California; his client Resides in discharged him or (b) Is pay regularly employed California; and refused to him a contractually or (c) Is regularly engaged agreed-upon business, contingency pro- fee when the an fessional, or other dispute similar titrust settled. Id. at activities in 163. Cali- Spanos fornia.” C.D. Cal. L.R. sued for fee 83-2.3.2 payment in Because the district court. the record has not been developed On banc, reconsideration as to en Second facts, these we decline to rest our Circuit held that reason- Spanos while not had ing upon Spanos.4, sought admission to practice hac vice District, the Southern “it ‘cannot be can still re- seriously any doubted time on mo cover for Wheatley, work, Sr.’s how- tion, the admission Spanos pro hac vice ever, because his conduct did not rise to ” would have been authorized’ dis the level of “appearing” before trict court. Id. at (noting that Spanos court. This court has permitted fee recov- was well trained in good and member ery for the work of paralegals, database Bar). standing of the California California managers, legal support, summer associ- state courts have similarly. held See Cow ates, even attorneys yet who have Calabrese, en v. 870, 872, 230 Cal.App.2d pass the bar. Council, Nat’l Res. Inc. Def. (1964) 41 Cal.Rptr. 441 (indicating an Winter, v. Cir.2008). 543 F.3d 1152 Illinois was able to collect fees These participants in the legal process do it “appear[ed] when certain” that the law not “appear” court, before the district as yer have would been admitted to they do argue sign cases briefs. before the federal “as a matter They are nevertheless integral part comity”). litigation process. Here, the record shows that Wheatley, Wheatley, Sr.’s role similar to such ais member in good standing litigation support consultants, and dis- Oregon Bar, State forty-five years has tinguishable from an “appearance.” See civil and appellate trial experience, Wunsch, served United States as President of Oregon (9th Cir.1996) State inBar (holding that an attor- 1993-94, is a fellow the American ney Col- “appeared” had when he identified lege of Lawyers, Trial and has been listed himself as counsel appear- court’s Lawyers The Best form, America since ance physically came into Spanos, As in there signed has “no pleadings, been and identified himself as suggestion any unlawyerlike of counsel). conduct on opposing counsel to note, however, 4. We do if the inquiry record could our end and here refuse to a why Wheatley, indicated reason Sr. would allow the Winterrowd to collect fees not have been admitted (such hac vice a for his work. suspension unlawyerlike conduct), bar we is filtered attorney’s work unlicensed front of argued in appeared Sr. never attorney, who is in-state a licensed through sign he briefs. nor did the district subject to and the court admitted to local his son and advising of the role He had as the case here Id. This is discipline. did with its which he pleadings, reviewing all work was at well, Wheatley, Sr.’s where with the contact minimal, nonexclusive Jr., who through filtered opposing times with no communication and client and the District Central not was admitted Moreover, Wheatley, Sr. did counsel. discipline. subject to its of Califor- the State enter physically even of prosecution the with nia in connection compelling to avoid In an effort case. this Dietrich, our dis- holding in of the force in- that “Dietrich Corp. colleague argues Dietrich reasoning senting of findWe law, of and rules Resources, Co., of practice 596 F.2d volved King Colorado,” In Cir.1979) point. responsibility, this professional persuasive posed not licensed “the Tenth Circuit Dietrich, and that who an answer, respect large in a with gave its question a consultant acted as in Colorado determining Dis- of law in Colorado.” practice to the litigation case. securities sent, not read Dietrich able to collect at 833. We do be he should whether the attor- a While work, reasoned: so restrictive manner. the court for his prac- admitted to ney seeking fees not in the did, services providing he Is what Colorado, not Tenth Circuit did tice through to or legal expertise field of his any rule of case or single cite a Colorado firms, ap- court with no law established specific to responsibility Colo- professional attorney, practice anas pearances Judge it did cite was only rado. The and ethics cases The law Colorado? for the Second Circuit Friendly’s opinion involved either we have seen opinions Dietrich, at 426. Spanos. private as counsel appearances court legal services rendering of or the clients it Moreover, rule which the ethical found Law firms have directly to a client.... of the ABA opinion was an persuasive student unlicensed always hired Ethics, obvi- on Professional Committee who have clerks, persons paralegals The Id. ously to Colorado. not limited legal education but their completed practice of the opinion addressed the issue bar.... to the awaiting are admission not all law- when partnerships of law activity as has treated No one in the yers practice were same admitted unauthorized rule of the ethical portion In a state. re- attorneys alone remain the licensed particularly found which the Tenth Circuit clients, are no there to the sponsible relevant, ABA observed Committee and no attorney, as appearances court to car- ethical barriers that “there are no as person of the unlicensed holding out by such firm rying on the advice. giver Independent person long particular as the each state so who, person is the that state admitted Spanos, 364 (citing at 426 Id. firm, vouched work 169). on behalf that the out-of-state held The court and, the client and lawyer all the others as be “treated attorney should courts, legal acts did the did not in the instant case in the services whose defined The law.... that state as the practice of the unauthorized constitute respect in this requirement important Id. recover fees. law,” that he could man must be admit- simply that the holding local its emphasized ability must have ted in the state and where the limited to instances should be make, responsible to and be making, Court of Appeals held that he was entitled for (cit- lawyer group." decisions the Id. legal to fees. Id. This is precisely the Comm, ing ABA Opinions, Profl Ethics issue we address in this case. (1967)) (emphasis original). No. 316 in We hold that Wheatley, Sr., Dietrich did not arise in While the con- Bar, non-member of the California did not text of a firm partnership, the Tenth Cir- physically appear before the Central Dis- trict, cuit concluded that applied its rationale did not sign in pleadings the case equally attorney to the seeking fees there District, the minimal, before Central had because, as was the case in Spanos both nonexclusive contacts with the Winterrowd the Opinion, ABA “an individual plaintiffs, Jr., that Wheatley, who was li- trained in the law as a act[ed] filter be- practice California, censed to law the person tween unlicensed ... person and the who alone remained responsible client, lay adding and exercising indepen- plaintiffs, to and that Wheatley, Sr. did and, professional judgment, dent impor- not render services directly to the tantly, is an officer of local court sub- plaintiffs, the ject to its discipline.” This holding, Id. as attorney’s recover fees for his work in the earlier, we observed is prosecuted consistent Cal- before the district court in ifornia law. See 17 Cal.4th at the Central District.5 131, 1; 70 Cal.Rptr.2d Frye, P.2d holding Our does not adversely impact 38 Cal.4th Cal.Rptr.3d 129 P.3d very important pro role hac vice ad- 408. play missions in our system. federal court dissenting opinion suggests also An out of attorney state must still apply that persuasive Dietrich is not because it pro hac vice admission if attorney splitting agreement, “involved fee not a appears signs pleadings, or is the fee-shifting statute which is at issue our exclusive contact in a case with the client Dissent, case.” at 833. “Whilewe are not opposing Moreover, counsel. an attor- certain which way cuts, this ney distinction see may not receive fees under 38 Cal.4th at Frye, holding this case if there is evidence 129 P.3d it ignores the fact that the did he not meet the legal qualifications to central issue Dietrich turned on what admitted hac be vice to the bar of the practice Dietrich, constituted the of law. thus, relevant court had applied; he dis- 596 F.2d at barred, it Because concluded suspended unquali- or otherwise that the conduct of the attorney there attorneys may did fied not be the beneficiaries not constitute the holding in this Although case. we 5. There is evidence that quest, the California state deciding assist the client in wheth- way. courts would view the case 2004, (3) this attorney; er to retain the Indicate on (which California Rule of Court has any Web site or other advertisement that is 9.47) enacted, since been renumbered as accessible in California either that the attor- permits attorneys out of prac- state ney is not a member of the State Bar of law they: tice in California when attorney California or that the is admitted listed; only (1) states Maintain an office ain United States (4) good Be an active standing member in jurisdiction other California and than state, jurisdic- of the bar of a attorney United States which the is licensed to tion, law; (2) possession, Already territory, dependency. be retained a client in Although completely analogous the matter provid- for which the is case, ing legal except services in it indication state court attorney may provide legal system moving being advice ato towards more amena- client, potential potential multi-jurisdictional practice. client’s re- ble to a

826 authority.” A the court’s “inherent a under that “there is dissent with the

agree rule, matter of law not as a vice we court does pro hac district the reason behind” denying by summarily rule in a draconian discretion the abuse its apply need not “ap- not making has without the for sanctions request when fashion court, denying the thus Separation, Air findings in front of facts. specific peared” statutory their plaintiffs London, 291 45 F.3d Lloyd’s the Winterrowd v. Inc. fees. Cir.1995). to recover right sum- The district court’s neces- motion mary of the sanctions denial for Sanctions Request Plaintiffs’ faith, it no bad sarily implies that found claim plaintiffs The Winterrowd finding. we affirm this and abused its discretion court district with findings fact to make failing sponte request for sua Hourly their to respect of a Reasonable Calculation 56(g), Rule Rule under sanctions Rate authority” “inherent court’s

the district plaintiffs argue for the Win- The basis sanctions. impose calcula court in its that district erred for sanctions requests plaintiffs’ terrowd hourly rate for the reasonable tion of theo of various ERISA pursuit AGAIC’s argue Wheatley, Jr. Winterrowd and the litigation, at the outset ries hourly rate that under and de a declaration between discrepancy according must be made determination testimony, they believe position typically rate the “market rate”—the faith conduct. of bad evidence attorneys the com charged by “private plaintiffs’ request The Winterrowd non-contingent litiga munity conducting defec- procedurally Rule 11 sanctions type”—and the tion of the same must 11 motion for sanctions A Rule tive. pre evidence by ignoring the court erred twenty-one counsel opposing be served rate and market respect with sented the motion filing days before considering evidence improperly instead counsel a opposing providing “customary rate” related to the offending give ... harbor “safe clients. ordinarily charges Wheatley, Jr. ... to withdraw opportunity party the thereby escape offending pleading has re Supreme Court The California Miller, Barber v. 146 sanctions.” of the confirmed the peatedly discretion (9th Cir.1998); also Fed. see 710 appropriate fee determining trial 11(c)(2). provide Failure to R.Civ.P. judge is ‘experienced trial awards: “The of Rule precludes award required notice judge professional of the value best motion. upon 11 Wintterrowd’s sanctions court, and while rendered in his services Barber, (holding “[a]n at 710 subject to re judgment is of his course be sanctions cannot 11] [Rule award of view, unless the will not be disturbed it seeking did party sanctions upheld” where that it is clear court is convinced appellate day twenty-one period). notice provide not that it abused its dis ly wrong’—meaning aas court was correct Thus the district Drexler, 22 v. Grp. PLCM cretion.” there was “no law that basis” matter of 1084, Cal.Rptr.2d 997 P.2d 95 Cal.4th 11 sanctions. awarding Rule Priest, (2000) 20 (citing Serrano 25, 49, 569 P.2d Cal.Rptr. Cal.3d court also did The district (1977); Corp. v. Pell En Fed-Mart make by failing to abuse its discretion 215, 228, ter., Inc., Cal.App.3d support its denial findings to specific (1980)). Cal.Rptr. 56(g) Rule under request for sanctions setting Wheatley, The district court’s would be a reasonable fee for such ser- ” hourly rate at Denevi, Jr.’s reasonable was vices.’ Martino v. Cal.App.3d $300 182 by 553, 558, well-supported produced (1986) (cita- the evidence Cal.Rptr. 227 354 omitted). on market rates. The plain- Winterrowd tions While “[s]ome federal expert tiffs’ own indicated that range require courts that an attorney maintain for associate of comparable experi- salaries ‘contemporaneous, submit complete Wheatley, ence to per Jr. was ...., standardized time $200-$435 records’ [i]n hour. The district court’s hour per an attorney $300 need not submit range rate is in line with the suggested by contemporaneous time records in order to declarations, and therefore the district attorney recover fees.” Id. at court did not abuse its discretion in mak- CaLRptr. 354. “Testimony attorney of an ing the factual determination of as to the number of hours worked on a Jr.’s reasonable rate. particular case is sufficient evidence to support fees, an award of attorney even in Request Post-Judgment Attorney’s for the absence of detailed time records.” Id. Fees As Jr. and Wheatley Robert plaintiffs The argue Winterrowd met the requirements under California law district court erred in dismissing their “evidence, of showing documentary and Rule 54 motion for “post-judgment” fees in oral, of the actually performed,” services April 2005 and November the district court did not abuse its discre- orders, orders. On review of these it is tion finding that the evidence the Win- clear that yet the district court has to rule terrowd plaintiffs submitted was sufficient on the post-judgment issue of fees. Re- for the court to plaintiffs’ determine the what, mand is appropriate on the issue of reasonable fees. any, if fees should be awarded for the period August between 2004 to October Reasonableness of Fees for Failed Mo- 11, 2007. tions Insufficiently Documented Fee Claims argues AGAIC on cross-appeal that the district court erred failing argues cross-appeal

AGAIC its require the that the district court to show abused its discretion reasonableness of three failing to strike failed motions by Wheatley, fee claims summary judgment before awarding Jr. and Robert Wheatley that “vague were spent fees for time on those insufficiently motions. documented.” required State establishes the law, Under California only “[i]t showing attorney’s fees in an action in plaintiff when a has achieved limited suc diversity. See Kern Oil & Refining Co. v. cess or has failed with respect to distinct Co., Tenneco claims, Oil 1388-89 and unrelated that a reduction (9th 1986) (applying Cir. standards under from the appropriate.” lodestar is Hogar award). Texas setting law for fee Escondido, Under v. Community Dev. Com. of enable 1358, 1369, “[t]o the trial court 157 Cal.App.4th (2007) (citation omitted). determine whether fees should “However, amount, be awarded and in what an attor claims, where lawsuit consists of related ‘(1) ney evidence, present should documen a plaintiff who has won substantial relief oral, tary and actually the services per should not have his [or her] fee formed; (2) expert opinion, by simply [the reduced because the [trial] court applicant] and other lawyers, as to what adopt did not each contention raised.” Id. Cir.2004). Further, it is clear omitted).

(citations party seeking on its cross- arguments reason- us AGAIC’s to show the required fees is appeal “An merit sanctions. appeal do not claim. every failed ableness when the result is considered frivolous sup- adequate provides Here, record arguments of appellant’s obvious or conclusion that court’s for the port wholly Operat. merit.” error are without reasonable and were motions the failed Svc., v. Backhoe Eng. Pension Trust Cecil summary judg- The first compensable. (citation (9th Cir.1986) 1501, 1508 795 F.2d recovery breach for of sought motion ment omitted). re- plaintiffs’ The Winterrowd the ERISA on was denied contract but preju- for sanctions is denied quest overruled theory a grounds, preemption dice. Likewise, the motion appeal. court on this also denied on was for reconsideration Conclusion After our preemption. of ERISA grounds 20, 2004 order AFFIRM the October We issue, the ERISA on and remand reversal except respects court in all of the district entry judgment of an motion for the Wheatley, Sr.’s for for the denial fees had ad- the district court time the first and REMAND this work. REVERSE We on contract issue the dressed the breach determination to the court for district merits. to the of the amount due the contest district does not AGAIC work on for Sr.’s the plaintiffs plain- the finding that Winterrowd court’s case, and portion court of this we district per- one-hundred “ultimately attained tiffs a to the court for deter- REMAND they sought, despite recovery cent what, if in first instance of mination every stage.” opposition defendant’s any, attorney’s are owed to the Win- fees recovery Moreover, precise this from Au- plaintiffs period terrowd for the con- sought through that Winterrowd 2007. gust 2004 to October in three mo- advanced claims he tract party shall bear its own costs on Each appear reason- failed motions tions. appeal. victory, ultimate to the ably related abuse its discre- did not the district PART, RE- AND AFFIRMED IN prove requiring tion not IN PART. AND REMANDED VERSED allowing fees for nor

reasonableness motions. these RYMER, Judge, concurring Circuit part: part, dissenting FRAP 38 under Request for Sanctions agree I cannot part company I address the Winter- because Finally, we must why experi- on an majority’s take request for sanctions with plaintiffs’ rowd attorney Ap- enced such as William Federal Rule against AGAIC under Sr., provided who advice AGAIC contends substantial pellate Procedure 38. action in in aid of Winterrowd’s California defective request procedurally this in the yet is not admitted to State separate mo- requires Rule 38 District of the Central request made California tion fees. “A California, entitled to attor- is nevertheless satisfy Rule 38” appellate brief does § ney’s under 218.5 of the California fees Higgins See Vor- and must be denied. any authori- Inc., am Labor Code.11 unaware Systems, Fishing tex attorney's award reasonable provides § the court shall 218.5 Labor Code California prevailing party if wages and costs to non-payment of fees any ... action for "[i]n § ty construing recovery 218.5 to allow recognizes exceptions,2 including that attorney’s fees for the work of a non- regulate practice state cannot before a fed- admitted “consultant” —in case, court —in eral this the United States —or circumstances. these District Court for the Central District of California.3 But Wheatley, Sr. never ful- California substantive law determines filled the requirements before availability and amount of District, the Central Only either. attor- case. Mangold v. diversity neys who are active in good members Comm’n, Pub. Util. California standing of the State Bar of Cir.1995). permitted those who are Montalbano, pro hac appear Condon, Superior Frank v. & vice, may appear and participate par- Court leading authority is the in ticular case District of non-admitted, Central Cali- whether out-of-state attor fornia.4 An attorney such as ney may recover fees for work Sr., who is not practice admitted to in legal on California 17 matters. Cal.4th California (1998). but is a member of the Cal.Rptr.2d 70 949 1 bar of P.2d Supreme Court of general Oregon, may rule may is that one submit “[n]o application a written compensation permission recover for for to ap- services as an vice, and hac attorney pear participate at law in this state pro unless[the which granted be in person] was the time the services were the court’s discretion. of C.D. Cal. R. performed attorney member The State Bar.” 83-2.3.1. An is dis- Hardy Id. v. San (quoting qualified at 5 Fernando permission from practice to Comm., Valley Cham. hac vice if he resides in Cal.App.2d California, regu- 572, 576, (1950)). 222 P.2d 314 Birbrower larly employed in regular- or is party to the requests attorney’s action 4.The Central District's Local Rule 83-2.3 upon and costs governs pro initiation of the action.” appearance. hac vice Section provides: 83-2.3.1 brief, recognized 2. The exceptions are con- Appear Permission to Any Pro Hac Vice. appearances sensual before a state court or person eligible who is not otherwise for tribunal, vice, permission appear pro to hac Court, practice admission to before this but courts, practice before the United States cer- of, standing who is a member in good and allowing foreign legal tificates consultants to before, eligible to any the bar of foreign jurisdiction advise on the law of the Court, United highest States or of court admitted, they are representing where and State, any Territory or Insular Possession parties in arbitration or conciliation of cer- States, good of the United who is of moral disputes. tain international Id. commercial character, and who been retained has to at 6-7. Court, appear may, upon before this written application and in the discretion of the 949 P.2d at Court, permitted be appear partici- to 6; Calabrese, Cowen v. Cal.App.2d pate pro hac vice in a particular case. (1964). Boole, Cal.Rptr. In re provides: Section 83-2.3.2 relies, upon which the majority is to the same Disqualification Ap- Pro Hac Vice effect. It holds that "[a]dmission to pearance. by Unless authorized the Con- law before a state's courts admission to stitution United States or Acts of practice before the courts in that federal state Congress, applicant eligible is not for separate, independent are privileges.” 222 permission practice pro hac vice if the (9th Cir.2000). However, Poole applicant: case, speak question does not (a) California; in this Resides in or (b) is whether an California; out-of-state who regularly employed Is in or (c) is not admitted business, either the state or regularly engaged profes- Is sional, federal district court is entitled to fees under or other activities in similar Califor- fee-shifting a California statute. nia. stipulating agreement a fee client under business, professional, engaged

ly mat- govern all law would Id., that California R. 83- in California. activities similar The California representation. ters 2.3.2. agree- the fee invalidated Court Supreme that Wheat- to surmise us It is not payment it authorized to the extent ment permis- granted been have ley, Sr. would by the firm’s performed for the services vice pro hac participate appear sion practicing lawyers in because California he never did. applied, he had a license violated law without for dis- even not automatic Permission 6125,5 § Code Professions Business and means it is no And lawyers. tinguished were earned extent fees not to the but Sr., although other- that clear Defining in New York. performed services of his admission by virtue qualified wise “in California” of law what the as Oregon highest the bar primary means, “[t]he court held Appeals Court bar as to the well lawyer the unlicensed is whether inquiry Circuit, not be dis- would for the Ninth state, in the activities engaged sufficient engaging regularly on account qualified relationship with continuing created a activities California. professional included client the California admitted was neither Wheatley, Sr. As Birbrower, 949 obligations.” duties and Bar, nor State the California practice by attorney an It concluded that P.2d at 5. California, I do District Central by the being “in without may practice California” an award he is entitled that not believe court, present, appearing or physically Therefore, I af- would attorney’s fees. (noting that at in the state. Id. firm. is one factor in the state physical presence not exclu- but is that be considered

I to the sive; exception rejecting and major outset, disagree attorney is barred I that an general rule At the and for services compensation are irrelevant recovering rules ity that California involving Maj. op. at in another state inapposite. rendered that Birbrower view, Rather, my appearance). Califor 820-21, courtroom 822. Mangold, 67 applies. law nia substantive activity in this California Wheatley, Sr.’s Park Bruno 1478; Z.A. v. San F.3d at 140 hours He gave case was substantial. Dist., Cir. F.3d

Sch. counsel, billing at the and of advice worth Z.A., 1995). Birbrow “[t]he said As we ran activities per hour. His rate of $550 of law practice er decision defined complaint, considering the gamut meaning of Cal. Bus. within on working dis- amending pleadings, excep § and described & Prof.Code judgment, summary covery, assisting of law the practice where §to tions that various issues reviewing attorneys not admitted by in California proceed- during the course up came is allowed.” bar the California Birbrow- application To avoid the ing. er, relies on primarily which, cov- argues, exception” he firm “federal York law New involved Birbrower attorney does any an out-of-state in ers work law practice licensed that was not States United pending a matter before a ser- performed legal firm The California. that court, of whether regardless for a California-based vices in California Act, person is an active unless Bar in California part State of the 5. Section 6125 State Bar.” member of the practice law person provides: "No shall satisfy is admitted or could the conditions to federal court and that this certainty practice for admission to in that court. suffices in authorization, lieu of actual see However, support there is no for constru- Spanos v. Skouras Theatres Corp., 364 ing exception broadly. I so As read (2d Cir.1966) (en banc); 168-69 Birbrower, attorney’s may only be Cowen, 230 Cal.App.2d at 41 Cal.Rptr. awarded for the law Califor- 441, there is no saying basis for so here. permission nia with legislature or Unlike the Local Rules of the Southern with consent of a state or federal. District of New York at issue in Spanos, Wheatley, Sr. had no leave. such permitted “[a] member in good majority’s 'attempts to distinguish standing of any the bar of state” to be Birbrower also fall short. To the extent vice, admitted hoc the Local Rules of majority suggests Wheatley, the Central District make authorization Sr. and his son were in a legal partner- discretionary both conditional. (A ship partnership. was no for- Wheatley, applied —there Sr. neither for authori- mal partnership would have made this a zation nor any submitted evidence from case.) very different The relevant firm court, we, which the district can be sure Wheatley, firm, Oregon Sr.’s and the that he is not disqualified.6 only attorney from that firm who worked it, As I see Sr. either was or Sr., on this case was who is not wasn’t authorized to in California. admitted to the California bar. And while He was not authorized to preemption may ERISA have once been the State of the Central case, an issue in the issue fell out me, District. To it follows that there is no opinion after our 2003. Winterrowd has permissible upon basis which Wheatley, always maintained presented that the case give Sr. could legal advice relating to Win- a dispute contract arising under California terrowd’s action in the District Court for law; the were California resi- the Central District of California for which dents; underlying contract was to be attorney’s fees are recoverable California; under Cali- performed in and the matter fornia law. litigated in a federal court in Califor- nia exercising diversity jurisdiction. its

Furthermore, explicitly Birbrower fore- II argument that, closes the because Wheat- ley, Sr. did his in Oregon, work he could I am persuaded not otherwise practicing be law “in California.” majority’s view that there are alternate Rather, Wheatley, Sr.’s work on this case grounds upon which Winterrowd can re- appears to be practice of law “in Cali- cover fees Wheatley, Sr.’s work. The fornia” under fact-specific Birbrower’s majority suggests first that Wheatley, Sr.’s test. conduct did not “ap- rise to the level of

While it be that pearing” courts are some- in court. It reasons that say times able to that an out-of-state permitted recovery attor- court has fee for the ney “certainly” would have been admitted “paralegals, work of managers, database contrary, Wheatley, 6. To the against Sr.’s declaration Southern California Edison." This support request of Winterrowd’s for fees question Wheatley, raises a about whether Sr. implicates C.D. Cal. R. 83-2.3.2. He states: "I California,” "regularly employed or is [Wheatley, have worked with Jr.] on other business, "regularly engaged professional, cases, including one California case in which or other similar activities in California.” judgment a multimillion dollar was obtained associates, request comparable and even for his fee is based legal support, summer yet pass billing partners have the bar.” rates for senior Los attorneys who have, Certainly we but Maj. at 823. op. Angeles firms. applicable. The only -whenfederal Next, majority that supposes Wheat- relies, majority Nati upon ley, “litigation sup role is similar to Sr.’s Council, (NRDC), Inc. v. Winter

Res. Def. consultants, port distinguishable graduate for a law school allowed fees ” Maj. op. at ‘appearance.’ from an 823-24. for NRDC under the a consultant acting as agree Wheatley, I that Sr. did not While Act, to Justice 28 U.S.C. Equal Access by signing in the “appear” (9th Cir.2008). § 2412. 543 F.3d (as arguing he did in our court papers However, light no on the NRDC sheds appeal), disagree on this I this an Wheatley, attorney’s fees for availability right question. question swers law.7 under Sr.’s work he did—not what he didn’t whether what done I see how the work Nor do of law in do—constitutes Cali Sr., requests, that he Wheatley, or the fees him preclude fornia such as to from recov analogized to the work reasonably can be ering statutory fees. Under California done, by paralegals, charged, or the fees a non-admitted can legal support, summer managers, database appearing signing law without court or associates, graduates or law school who papers. See Wheatley, yet pass have the bar.8 Sr. 5, 10. 304, 949 P.2d at benefit of 140 gave case the Winterrowd’s assuming Wheatley, role Even Sr.’s judgment, professional hours of his “consultant,” majority was similar to a per at the rate of which he billed $550 points support to no California law for wrong, am but I don’t Perhaps I hour. proposition doing that “consultants” (yet) com- think even a summer associate Rather, the kind of work for which hour. per mands $550 statutory billed would be entitled to fees. one the sort of services would Sr. rendered thought, As the district court this would lawyer, at a rate one expect practicing lawyer to circumvent the rules of as set out expect practicing would fact, justification expert Birbrower.9 charge. court, practice held that of law” in federal "then he is 7. California courts have parale- Maj. op. available for the services entitled to recover fees.” at 822 n. fees are believe, however, gals fully compensate attorney. the I two order 3. this conflates Dotson, See, Cal.App.4th e.g., Wheatley’s Guinn v. issues. Even if work were not (1994). law, Cal.Rptr.2d 409 Aside from the unauthorized under federal there would Wheatley, implausibility putting separate question Sr. in the remain the of whether paralegal, Wheatley, no evidence that statutory ranks of a there is Sr. is state law entitled to "consultant,” any bearing in this question the same rationale has as a and this law, nothing suggests in this record case for would be resolved under California Wheatley, pay father policies Jr. would have to his if which would take into account the compensated Wheatley, under Sr. were embodied in Birbrower. the fees statute. most, majority suggests At the that Califor- might differently nia courts now see this obviously Wheatley,

8. Sr. did not think of his light supervening California Rule of Court way, included own services this as his bill 966), (formerly 9.47 California Rule of Court charges at the for the work of a "law clerk” permits practitioners out-of-state per $100 rate of hour. practice law in California under limited cir- However, Maj. op. at majority 9. The that if Sr.’s cumstances. n.5. insists only applies the unauthorized Rule 9.47 to out-of-state attor- work not constitute "do[es] Finally, majority posed question, finds Dietrich the gave answer, its Resources, Co., Corp. King respect to “the practice of law in (10th Cir.1979), not, I persuasive. do be- added). So, Colorado.” Id. (emphasis re- law, cause Dietrich involved the practice gardless of how sensible commentary professional responsibility, and rules of majority which the may appear, recites Colorado. Dietrich also involved a fee Maj. 823-24, op. at it speak doesn’t to what splitting agreement, fee-shifting not a stat- constitutes the practice of law in Califor- at ute which is issue our case. As the nia.10 noted, Tenth Circuit “each state itself de- question The ultimate for us is whether termines what is the of law and services provided may practice who law.” Id. 426. The to or through his son’s firm constituted the problem there was whether Colorado coun- practice of law in such as to bar ethically sel could share fees on a contin- recovery statutory attorney’s fees. The gency pursuant agreement basis to a fee answer must by be informed the substan- professor with a law who expert tive including the rules of legal accounting, employed as a con- Having California. held that the rules of sultant lead counsel actions pending court in California are irrelevant and Bir- in the United District States Court for the brower inapposite, the majority neces- Colorado, District of and was not admitted sarily gets both the question, and an- Colorado when the services swer, off track.

were rendered. Id. at 424-26. The Tenth Circuit held that professor should be requirements Admission important. are lawyer treated as a for purposes Perhaps they “draconian,” appear as the canons. Id. at 426. It majority it, concluded that his puts when applied preclude services did not constitute the unautho- experienced attorney fees for an of Wheat- rized of law under ley, the cases and Sr.’s stature. But there is reason for studied, opinions given ethics it requirements admit- admission that extends be- ted counsel acted as a filter yond any between the individual attorney.11 There is client, professor, unlicensed distinguished lawyer, and the no or draconian re- However, sult, court. Id. exception. Tenth Circuit requirements Admissions neys already who are retained practice, disqualifying City client or entire Attor- providing potential are advice to a client to ney’s prosecuting department office from deciding assist client in client); whether to retain Compensation head’s former State attorney. Wheatley, Sr.’s fit WAS, services nei- Inc., Cal.App.4th Ins. Fund v. category. ther 655-56, (1999) ("[T]he ABA Model ... Rules do not establish the question support majori- I also they ethical standards in as have ty opinion finds in the ABA ethical adopted not been in California and have no Tenth Circuit discussed Dietrich. Neither own.”). Moreover, legal of force their Diet- party applicability has raised the of ABA au- opinion rich considered the ABA in the con- thority Wheatley, to Sr.'s case and there is no text of the Model Code of Professional Re- indication that the relevant ABA rules are sponsibility, superceded which has since been California, part landscape of the by the Model Rules. adopted which has not the ABA Model Rules City County of Professional Conduct. See 812, (9th Solutions, Hug, 11. See Russell v. 275 F.3d 820 San Francisco v. Cobra of Cir.2002) 839, 771, 20, (noting that Cal.4th California Bar mem- 135 P.3d (2006) (rejecting bership requirements "help approach 28-30 ABA to ensure a mini- of lim- screening” government acceptable ited competence “ethical of mum level of attor- for law- neys ”). private yers from matters related to former on whole majority Even were the cor ensuring tral District. interest of legitimate “the serve District rule practicing before the rect about how Central attorneys that all read, eligible get fees required’ ought to who is to the standard courts ‘clear bar associations.” Gallo Code is an state under the California Labor respective Ct., Dist. law. v. U.S. issue of state Cir.2003). from state to differ Standards majority’s thing preface more. The One decision state, District’s hence the Central the need to accommodate realities talks of in the membership rely primarily to upon takes practice, of modern For mem significant.12 Bar is California doing so to responsibility this court the bars, the federal court other state bers of Maj. at being judicial op. Luddites. avoid whether should determine that it believes way. I don’t see it this This 819-20. attorney may participate an out-of-state tech- involving no issue modern presents of its through application litigation pending question is no here about nology-—there just This is as reason vice rules. pro hac the Inter- age personal computers, courts to the California able as it is for emails, net, Blackberries, teleconferencing, requirements.13 Cre pro hac vice impose two-way wrist radios. Nor of not even to receive way for ating a firms, discovery or massive multinational to either fo being admitted fees without projects papers and data located well-considered this rum undermines cannot, opinion Thus the several states. structure. not, speak any to of these “reali- and does took himself out of the Wheatley, Sr. us, nothing ties.” Because else is before apply pro for admission by failing to loop pro its views about the Central District’s Having applied, never he is hac vice.14 necessarily limited to hac vice rules are complain about how Rule hard to pressed recovery when the fees For this written construed. 83-2.3.1 is himself, acting, by unadmitted reason, entitlement to statuto and because help to his son. the substantive law of ry turns on Even if this case were about accommo- is no occasion for us to dating of the realities hac vice rules Cen rewrite the Russell, distinguishes Wheatley, (holding Sr.'s situation 275 F.3d at 819 14. This 12. See may rely on the infrastructure sought courts Spanos, where the client who meeting provided by associations in state bar attorney's defend the action for fees on monitoring attorney ad their own needs for ground illegality was himself at fault be courts); federal mission agent, attorney, the client's his in-state cause Real, (9th Cir. 911 F.2d Giannini v. lawyer appear leave for the failed to obtain 1990) ap (outlining requiring bar reasons pro hac vice in federal court. 364 F.2d plicants district court in Califor to a federal Cir 169. In those circumstances the Second good standing nia to be a member the client should not be allowed cuit believed Bar). Id.; escape pay from contract to fees. George, Flynt, v. 13. See Paciulan 439 U.S. 442 n. 99 S.Ct. Leis (9th Cir.2000) (rejecting challenge (1979) 1228-29 (noting L.Ed.2d 717 that "the rules, pro hac vice and remark- to California's holding Spanos quite nar precise [in ] was them, ing California resident "[a] that without here, row.”). By sought contrast fees are not wishing practice law in California but opponent under a from the client but from the wanting bar to avoid the difficult California statute, fee-shifting lawyer and the who seeks a member of the bar with exam could become apply the one who failed to the fees is requirements, the least admissions restrictive hac vice admission. bar then demand admission to the California right.”). as a matter of isn’t, a which it task for state District. The answer turns on whether his appellate federal courts. legislatures, not services constitute the law Supreme emphasized, Court has As California under the law of I California. founding Republic, do, “[s]ince they think as it seems to me that regulation lawyers has licensing extensive advice a prolonged period over exclusively been left to the States and the time with to California law for respect within respec- District of Columbia their Californian litigation involved in in a Cali- Leis, jurisdictions.” tive U.S. fornia forum meets the Birbrower test. reason, good 99 S.Ct. 698. Our This means that Sr. is barred crafting exceptions has refrained to from recovering statutory fees. But even admission, they bar are matters this, if I am wrong about I would not be on Z.A., legislature. for the state 165 F.3d at opinion board the because the majority does not consider the answer ques- to this “controlling.” tion sum, it, as I see this case involves statutory governed by fee request the sub- issue; Accordingly, I dissent on this oth- stantive law of State of California. erwise, I concur. question Oregon lawyer is whether an who is not admitted to either

the California State Bar or the Central

District of California recover attor-

ney’s fees for services rendered in litigant

aid of a California on California pending an action the Central

Case Details

Case Name: Winterrowd v. American General Annuity Insurance

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Feb 17, 2009

Citation: 556 F.3d 815

Docket Number: 07-56541, 07-56711

Court Abbreviation: 9th Cir.