What Can Non-Admitted Attorneys Do in California without Violating the State Bar Act?
LACBA Update, Issue Month/Year Goes Here
By Joan Mack, member and former chair, LACBA Professional Responsibility and Ethics Committee, and a shareholder at Caldwell Leslie & Proctor, PC, email@example.com. The opinions expressed are her own.
“No person shall practice law in California unless the person is an active member of the State Bar”—California Business and Professions Code Section 6125.
“The California Legislature enacted section 6125 in 1927 as part of the State Bar Act (the Act), a comprehensive scheme regulating the practice of law in the state. Since the Act's passage, the general rule has been that, although persons may represent themselves and their own interests regardless of State Bar membership, no one but an active member of the State Bar may practice law for another person in California.”1
The State Bar Act, however, does not define the term “practice law” nor does it define the phrase “in California.” As the California Supreme Court noted in Birbrower, case law has defined the term “practice law” as "'the doing and performing services in a court of justice in any matter depending therein throughout its various stages and in conformity with the adopted rules of procedure.' (People v. Merchants Protective Corp. (1922) 189 Cal. 531, 535….) Merchants included in its definition legal advice and legal instrument and contract preparation, whether or not these subjects were rendered in the course of litigation. (Ibid.; see People v. Ring (1937) 26 Cal. App.2d. Supp. 768, 772-73… [holding that single incident of practicing law in state without a license violates §6125]; see also Mickel v. Murphy (1957) 147 Cal. App. 2d 718, 721 [giving of legal advice on matter not pending before state court violates §6125], disapproved on other grounds in Biakanja v. Irving (1958) 49 Cal. 2d 647, 651.)”2
In addition to this broad definition of what it means to “practice law” in California, the State Bar Act prohibits a non-admitted attorney from holding himself or herself out as being entitled to practice law in California. Violation of either provision carries serious consequences.3 Not only does the lawyer and his or her firm risk discipline and nonpayment of any fees charged for the unauthorized practice of law, but Section 6126(a) also provides potential criminal exposure for violations.4
So what does this mean for the new lawyer who is not yet admitted to the California State Bar or the out-of-state lawyer who has moved to California and has yet to pass the California Bar? For a new lawyer who is not admitted to practice in California, the following guidelines should be observed:
Any written designation of the non-admitted lawyer should indicate that the lawyer is not admitted to practice law in California. This includes Web sites, hiring announcements, letterhead, business cards, and signature blocks. Such disclosure is necessary to ensure that a law firm is not holding the non-admitted lawyer out as entitled to practice law in violation of Business and Professions Code Section 6126(a).
The non-admitted lawyer’s name should not appear on the caption of a pleading.
The non-admitted lawyer should not make an appearance in court or at a deposition.
If the non-admitted lawyer meets with clients in person or by telephone, the clients should be told that the lawyer is not admitted and is not entitled to practice law. Even with this disclosure, the non-admitted lawyer cannot provide the client with legal advice.
All legal work performed by the non-admitted attorney must be supervised by a licensed attorney.5 Further, “the work must become or be merged into the work of the attorney, so that it becomes the attorney's work product.”6
What about the out-of-state lawyer who has moved to California and has yet to pass the California Bar but who is admitted in another state or another country? Essentially, the above guidelines apply despite the fact that the lawyer is licensed in another jurisdiction.7 An out-of-state attorney who wishes to practice law in California must be admitted pro hac vice, and California residents are not allowed pro hac vice admission to California courts.8 Accordingly, an attorney admitted in another state but residing in California cannot hold himself or herself out as being entitled to practice law in California. He or she cannot give legal advice even on matters involving non-California law.9
What about the out-of-state lawyer who wants to assist a client in California? For that lawyer, what does it mean to practice law “in California” as that term is used in Section 6125? The court addressed this as a matter of first impression in Birbrower and, in so doing, observed:
In our view, the practice of law “in California” entails sufficient contact with the California client to render the nature of the legal service a clear legal representation. In addition to a quantitative analysis, we must consider the nature of the unlicensed lawyer's activities in the state. Mere fortuitous or attenuated contacts will not sustain a finding that the unlicensed lawyer practiced law “in California.” The primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations.10
The court went on to explain that its definition does not necessarily depend on or require the unlicensed lawyer’s physical presence in the state. “Physical presence here is one factor we may consider in deciding whether the unlicensed lawyer has violated section 6125, but it is by no means exclusive. For example, one may practice law in the state in violation of section 6125 although not physically present here by advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means.”11
The facts in Birbrower are instructive. There, two attorneys from a New York professional law corporation with its principal place of business in New York (the Birbrower law firm), neither of whom were admitted in California, entered into an agreement with a client in California to provide legal services in connection with a dispute over a contract which by its terms was governed by the internal laws of the State of California.12 The Birbrower attorneys made repeated trips to California where they met with their client, provided legal advice, and made strategy recommendations.13 The case settled prior to the commencement of arbitration.14 Applying the guidelines articulated above to these facts, the California Supreme Court held that the Birbrower law firm was not entitled to fees for the work performed in California because that work violated Section 6125, although the court permitted recovery of fees for services performed in New York.15
In summary, any attorney who is not a member of the California State Bar should familiarize himself or herself with the State Bar Act and related case law before doing any legal work in California or for a client in California.
1 Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal. 4th 119, 127 (1998) (internal citations omitted). Exceptions to §6125 do exist including that the State Bar Act does not regulate practice before the United States courts. Birbrower, 17 Cal. 4th at 130; see also Winterrowd v. Am. Gen. Annuity Ins. Co., 556 F. 3d 815 (9th Cir. 2009).
2 Birbrower, 17 Cal. 4th at 128.
3 See Cal. Bus. & Prof. Code §6126.
4 Any person advertising or holding himself or herself out as practicing or entitled to practice law or otherwise practicing law who is not an active member of the State Bar, or otherwise authorized pursuant to statute or court rule to practice law in this state at the time of doing so, is guilty of a misdemeanor punishable by up to one year in a county jail or by a fine of up to one thousand dollars ($1,000), or by both that fine and imprisonment. Upon a second or subsequent conviction, the person shall be confined in a county jail for not less than 90 days, except in an unusual case where the interests of justice would be served by imposition of a lesser sentence or a fine. If the court imposes only a fine or a sentence of less than 90 days for a second or subsequent conviction under this subdivision, the court shall state the reasons for its sentencing choice on the record. Cal. Bus. & Prof. Code §6126(a).
5 In re Carlos, 227 B.R. 535, 539 (Bankr. C.D. Cal. 1998).
7 See Birbrower, 17 Cal. 4th at 131 (“The statute does not differentiate between attorneys or nonattorneys, nor does it excuse a person who is a member of another state bar.”).
8 See Cal. R. of Ct. 9.40; see also C.D. Cal. Local R. 83-2.3.2.
9 See Bluestein v. State Bar, 13 Cal. 3d 162, 173-74 (1974).
10 Birbrower, 17 Cal. 4th at 128.
11 Id. at 128-29.
12 Id. at 124-25.
13 Id. at 125.
14 California Code of Civil Procedure Section 1282.4, enacted after Birbrower, allows an attorney licensed in another state to represent a party to an arbitration proceeding in California upon approval of the arbitrator and notice to the State Bar.
15 Birbrower, 17, Cal. 4th at 135-36.
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