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Birbrower Montalbano, Condon and Frank v. Superior Court

Published online by Cambridge University Press:  27 February 2017

Richard A. Eastman
Richard A. Eastman*
Affiliation:
Whitman Breed Abbott and Morgan LLP
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Type
International Decisions
Information
American Journal of International Law , Volume 94 , Issue 2 , April 2000 , pp. 400 - 405
Copyright
Copyright © American Society of International Law 2000

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References

1 17 Cal. 4th 119 (1998), cert. denied, 525 U.S. 920 (1998).

2 49 Cal. App. 4th 801 (1996).

3 Business and Professions Code §6125 provides: “No person shall practice law in California unless the person is an active member of the State Bar.” Violation of this section is a misdemeanor. Cal. Bus. & Prof. Code §6126 (West 1990). Further, “No one may recover compensation for services as an attorney in this state unless [the person] was at the time the services were performed a member of the State Bar.” Hardy v. San Fernando Valley Chamber of Commerce, 99 Cal. App. 2d 572, 576 (1950). See Birbrower, 17 Cal. 4th at 127.

4 17 Cal. 4th at 128–29 (footnotes omitted).

5 The court mentions arbitration only at the end of this portion of its opinion, referring to exceptions for international conciliations (see discussion infra note 32 and associated text) and for labor negotiations and arbitrations. See id. at 130–31.

6 See id. at 133.

7 537 F.Supp. 613, 616 (S.D.N.Y. 1982).

8 Birbrower, 17 Cal. 4th at 133. The same point is also made in a footnote; see id. at 134 n.4.

9 See id. at 133 (citing Comm. Rep., Labor Arbitration and the Unauthorized Practice of Law 30 Rec. Ass’n Bar City N.Y. (May/June 1975)).

10 See id. at 133–34. Since the court had already distinguished the case before it as not involving any time spent in arbitration, this statement is arguably dictum. The opinion also implies, however, that representation in arbitration is the practice of law by citing Moore v. Conliffe, 7 Cal. 4th 634, 637–38, 29 Cal. Rptr. 2d 152 (1994), for the holding that “private AAA arbitration [is] functionally equivalent tojudicial proceedings to which the litigation privilege applies.” Id. at 133.

11 9 U.S.C.A. §§1–16

12 17 Cal. 4th at 134–35.

13 489 U.S. 468, 477 (1989).

14 Birbrower, 17 Cal. 4th at 134–35 (citing and quoting Volt Information Sciences, supra note 13). In that case, the United States Supreme Court upheld a California statute (CCP §1281.2(2)) that allows a party to an arbitration agreement to avoid the effect of the agreement and to litigate in court, where an indispensable third party cannot bejoined in the arbitration. The United States Supreme Court reasoned that such a rule did not conflict with the Federal Arbitration Act because the parties had agreed to be subject to California law, including the statute in question. See infra note 29 and associated text for further discussion of the relevance of the Federal Arbitration Act to the decision in Birbrower.

15 Id. at 145.

16 AB 2086 (1998), amending §1282.4 of the California Code of Civil Procedure [hereinafter CCP]. Revised CCP §1282.4 came into effect January 1, 1999, and allows representation of parties in arbitration by “an attorney admitted to the bar of any other state.” The provision sets forth detailed procedures that must be followed by the out-of-state lawyer, ones that subject him to the jurisdiction of the California courts and the discipline of the State Bar. Cal. Civ. Proc. Code §282.4 (b) and (d). The arbitrator must approve the participation of the out-of-state lawyer. Cal. Civ. Proc. Code §1282.4 (c). The amended provision will lapse at the end of 2001. Cal. Civ. Proc. Code §1282.4(j).

17 Out-of-State Attorney Arbitration Counsel Program Rules and Regulations (effective January 1, 1999), State Bar of California, Office of Certification, San Francisco CA, Dec. 1998, Attachment 2, available in <>.

18 Cal. Rules of Court Code § Div IV R 983.4 (Deering 1999), effective July 1, 1999 (out-of-state attorney arbitration counsel).

19 See infra note 32 and associated text.

20 See infra notes 28–29 and associated text.

21 Before Birbrower the only reported cases in the United States relating to whether representation in arbitration is the practice of law appear to be the Williamson case, supra note 7, and American Automobile Association v. Merrick, 117 F.2d 23 (D.C. App. 1940), with both finding that such representation was not the practice of law. Until recently, moreover, nonjudicial authorities generally supported a liberal rule. See, e.g., Comm. Rep., Recommendation & Report on the Right of Non-New York Lawyers to Represent Parties in International and Interstate Arbitrations Conducted in New York, 49 Rec. Ass’n Bar City N.Y. 47 (1994) and Gerald Aksen, Arbitration and the Unauthorized Practice of Law , N.Y. L.J., Dec. 11, 1974, at 1.

22 See Fought v. Steel Eng’g & Erection, 87 Haw. 37, 951 P.2d 487 (1998) (where Oregon lawyers assisting Oregon client with appeal proceedings, negotiation, and mediation in Hawaii had associated local counsel, the Hawaiian Supreme Court distinguished Birbrower and held that there had been no unauthorized practice of law); Estate of Condon, 65 Cal. App. 4th 1138, 76 Cal. Rptr. 2d 922 (1st Dist. 1998) (applying Birbrower, Colorado lawyer helping Colorado resident in a probate matter pending in California was not practicing California law because client was not resident of California).

23 See Lawler, Matusky & Selly v. Attorney-General, No. 320 (High Ct 1981) (Barbados) (the court required that local counsel also be associated); Zublin Muhibbah Joint Venture v. Malaysia, 1990-3 MLJ 125 (High Ct. 1989) (Malaysia) (locally qualified lawyers also appeared in the arbitration); The Legal Profession Act, Section 34A, (1992) (Sing.) (Singapore Legal Profession Act amended to exempt from prohibitions of acting “as an advocate or a solicitor” any person acting as such in any arbitration in Singapore, provided that he or she must appear jointly with a locally qualified lawyer where the case involves Singapore law, It appears that either lawyers qualified outside Singapore or persons who are not lawyers at all may act in arbitrations with venue in Singapore.); Special Measures Law Concerning the Handling of Legal Business by Foreign Lawyers, Law No. 66 of 1986, Art. 2(11), as amended by Law No. 65 of 1996 (Japan) (any lawyer admitted anywhere can act as an advocate on behalf of clients in international arbitrations in Japan; there is no requirement for the association of local counsel even when Japanese law applies). For an English translation of the full text of the law as originally enacted in 1986, see Note, Special Measures Law Concerning the Handling of Legal Business by Foreign Lawyers, 21 Law in Japan 193 (1988). The law as amended to date is available in English translation issued by the Japanese Ministry of Justice, but the writer is not aware what, if any, published English versions may exist.

24 See, e.g., Robert Greig, International Commercial Arbitration in Japan—A User’s Report, 6 J. Int’l Arb. 21 (1989); Charles R. Ragan, Arbitration in Japan: Caveat Foreign Drafter and Other Lessons, 7 Arb, Int’l 93, 108, 112 (1991). See also David W. Rivkin, Keeping Lawyers out of International Arbitrations, Int’l Fin. L. Rev., Feb. 1990, at 7; Andreas F. Lowenfeld, Singapore and the Local Bar: Aberration or III Omen, 5 J. Int’l Arb. 71, 73 (1988).

25 See, e.g., Rivkin, supra note 24; Lowenfeld, supra note 24; Steven Nelson, Report of the Section on International Practice of the American Bar Association, 1989 A.B.A. Sec. Int’l Law & Prac., 24 International Lawyer 599 (1989).

26 514 U.S. 52, 115 S. Ct. 1212 (1995).

27 In defense of the California Supreme Court in this connection, it must be said that Mastrobuono seems not to have been cited to the court by any party or amicus (nor was it cited in the briefing of the petition for certiorari).

28 It might be argued that the term “state” in CCP §1282.4 includes foreign states. If only United Statesjurisdictions had been meant, provision should have been made for the District of Columbia and various other United States jurisdictions that are not states of the union (as, curiously, the implementing rule does do). In the nearby CCP provisions concerning international arbitrations and conciliations, the same term “states” clearly includes foreign countries. See Cal. Civ. Proc. Code §§ 1297.11-1297.432. It should be mentioned, however, that the legislative history suggests the intent was to provide an equivalent to Rule 983 of the California Rules of Court (which allows out-of-state lawyers to appear in a California court “pro hac vice,” likewise limited to lawyers qualified in United States jurisdictions). Legislative Analysis of AB 2086 prepared for Assembly Committee on Judiciary, Hearing May 5, 1998 (quoting representations by Morgan Stanley Dean Witter & Co). The summary of this hearing can be found on the Web site “Official California Legislative Information,” <>, under Bill Information, 1997–98, AB 2086 (Keeley).

29 See Cal. Civ. Proc. Code §1297.17 (which expressly supersedes many of the provisions of the Code of Civil Procedure dealing with arbitration, including §1282.4).

30 An exception may exist for registered Foreign Legal Consultants, foreign lawyers who are permitted to provide legal services in the state but, among other limitations, cannot appear in court proceedings or give any advice except on the law of the Jurisdicfions for which they are qualified. Registered Foreign Legal Consultant Rules and Regulations, §9.0. It would seem that any right Foreign Legal Consultants may have to practice law in California by acting for clients in arbitrations is limited to the law of the country of qualification. As of December, 1999, only 14 persons were registered as Foreign Legal Consultants in California. The current list is available through the Web site of the State Bar of Calilfornia, <>.

31 The Birbrower court went out of its way to correct what it described as the trial court’s “implied assumption” that Birbrower might have been in compliance had they associated local counsel. 17 Cal. 4th at 127 n.3. In fact, this point was made unequivocally by the Court of Appeal in Birbrower: “Clearly if the Birbrower firm had associated with locally licensed counsel, its fees would have been recoverable.” 49 Cal. App. 4th at 809.

32 17 Cal. 4th at 133 (CCP §§1297.11-1297.432 “specify that, in an international commercial conciliation or arbitration proceeding, the person representing a party … is not required to be a licensed member of the State Bar” (footnote omitted)). Earlier in the opinion, however, the court correctly states that the exception is only for international conciliations. See id. at 130–31.

33 See supra note 22.

34 17 Cal. at 146.

35 14 ILM 336 (1975), 9 U.S.C.A. §303(b)(1990), Treaty Doc. No. 97-12, 97th Cong., 1st Sess. 3–7 (1981), Jan. 30, 1975, CTIA DOC. No. 1703.

36 Dispute Settlement: Commercial Arbitration (as amended July 1, 1988), available in <>.

37 See id., Art. 4

38 See id.

39 See supra note 35, 9 U.S.C.A. §303(b)(1990).

40 For example, the Treaty of Friendship, Commerce and Navigation between the United States and Japan, Apr. 2, 1953, 4 UST 2063, TIAS No. 2863, 206 UNTS 143, Art. IV(1) assures “national and most-favored-nation treatment with respect to access to the courts of justice and to administrative tribunals and agencies” of the two countries. Applying Moore v. Conliffe, supra note 10, Article IV(1) should extend to arbitral tribunals, but cf. In re application of NBC Inc., 165 F.3d 184 (2d Cir. 1999) and Republic of Kazakhstan v. Biedermann Int’l, 168 F.3d 880 (5th Cir. 1999) (arbitral tribunal not a “tribunal” for purposes of 28 U.S.C.A. §1782).

41 See Lowenfeld, supra note 24. Professor Lowenfeld would limit this right to lawyers only.