Winterrowd v. American General ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NEIL WINTERROWD; KEVIN YURKUS; 
GREGORY STOPP,
Plaintiffs-Appellants,
v. No. 07-56541
AMERICAN GENERAL ANNUITY
INSURANCE CO., a Texas  D.C. No.
CV-00-00677-CAS-
Corporation; PATRICK GRADY; RC
DOES, 1-10 inclusive; THE
WESTERN NATIONAL CORPORATION
JOB SECURITY PLAN,
Defendants-Appellees.

NEIL WINTERROWD; KEVIN YURKUS; 
GREGORY STOPP,
Plaintiffs-Appellees,
v. No. 07-56711
AMERICAN GENERAL ANNUITY  D.C. No.
CV-00-00677-CAS
INSURANCE CO., a Texas
Corporation; PATRICK GRADY; THE OPINION
WESTERN NATIONAL CORPORATION
JOB SECURITY PLAN,
Defendants-Appellants.

Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Argued and Submitted
November 18, 2008—Pasadena, California
1859
1860 WINTERROWD v. AMERICAN GENERAL
Filed February 17, 2009
Before: Pamela Ann Rymer and Milan D. Smith, Jr.,
Circuit Judges, and Edward R. Korman,* District Judge.
Opinion by Judge Milan D. Smith, Jr.
Partial Concurrence and Partial Dissent by Judge Rymer
*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
WINTERROWD v. AMERICAN GENERAL 1863
COUNSEL
William G. Wheatley, Jr., Law Offices of William G. Wheat-
ley, Jr., Del Mar, California, William G. Wheatley, Sr.
(argued), Jaqua & Wheatley, Eugene, Oregon, for the
plaintiffs-appellants.
Catherine A. Conway, Rex S. Heinke (argued), Jessica M.
Weisel, Akin Gump Strauss Hauer & Feld LLP, Los Angeles,
California, for the defendants-appellees.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
We consider in this appeal whether the Plaintiffs can
recover attorney’s fees generated by a 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 Cen-
tral District of California (Central District), but who (a) is not
a member of the California Bar, (b) does not physically
appear before the Central District, (c) does not sign pleadings
in the case before the Central District, (d) has minimal contact
with his clients, and no direct contact with opposing counsel
in the case, (e) is supervised by Wheatley, Jr., an attorney
who is licensed to practice law in California and is the person
who alone remained responsible to the Plaintiffs, and (f) is not
admitted pro hac vice in connection with the case before the
Central District, but no evidence in the record shows that he
would not have routinely been so admitted had he applied.
We hold that the Plaintiffs can recover such fees. With respect
to this issue, we reverse and remand, and with respect to the
other issues addressed in this opinion, we affirm in part, and
remand in part.
Factual and Procedural Background
This is the third time this court has heard an appeal related
to this matter in almost nine years of litigation. Appellants
1864 WINTERROWD v. AMERICAN GENERAL
Neil Winterrowd, Kevin Yurkus, and Gregory Stopp (Winter-
rowd plaintiffs) filed their initial and amended complaints in
early 2000, asserting claims for breach of a severance con-
tract. American General Annuity Insurance Co., et al.
(AGAIC) asserted in its answer that the Winterrowd plain-
tiffs’ contract claims were preempted by the Employment
Retirement Income Security Act of 1974 (ERISA), 29 U.S.C.
§ 1001 et seq.
The district court granted AGAIC’s motion for summary
judgment, holding that the severance contract issued to the
Winterrowd plaintiffs was an employee benefit plan covered
under ERISA. The Winterrowd plaintiffs appealed, and on
March 5, 2003, this court reversed the district court’s grant of
summary judgment, finding that ERISA did not apply, and
remanded the case for further consideration of the Winter-
rowd plaintiffs’ breach of contract claims.
After remand, the Winterrowd plaintiffs moved the district
court for an entry of summary judgment on their breach of
contract claims. The district court denied that motion because
it found that a material dispute of fact remained respecting
AGAIC’s unilateral mistake affirmative defense. Ten months
later, the parties entered into a settlement agreement under
which AGAIC agreed to pay the entire amount claimed by the
Winterrowd plaintiffs, plus interest, totaling $288,240.56. The
settlement agreement provided for the payment of all costs
except for those incurred in connection with the appeal. With
regard to attorney’s fees, the settlement agreement stated:
The parties agree to preserve the issue of attorneys’
fees, if any, for a noticed motion to be decided by
District Court Judge Christine Snyder. . . . The Court
shall decide the issue of attorney’s fees based on the
law, evidence submitted by affidavits (with either
party reserving the right to object) and the submitted
briefs. Each party retains the right to appeal the
award or denial of attorneys’ fees.
WINTERROWD v. AMERICAN GENERAL 1865
The Winterrowd plaintiffs also agreed “to prepare a dismissal
with prejudice of the entire action and provide it to Defen-
dants’ counsel. Defendants agree not to file the Dismissal
until their receipt of the Court’s final decision on the issue of
attorney’s fees.”
The Winterrowd plaintiffs next filed a motion for attorney’s
fees pursuant to § 218.5 of the California Labor Code, as well
as a motion for sanctions against AGAIC’s counsel. In an
order dated October 20, 2004, the district court held that the
Winterrowd plaintiffs were owed attorney’s fees as a matter
of law “[i]n light of the Ninth Circuit’s decision that plain-
tiffs’ original claim was not preempted by ERISA and the fact
that defendant ultimately agreed to pay plaintiffs one hundred
percent of their contract claims.” The district court applied
California law to determine a reasonable hourly rate for the
Winterrowd plaintiffs’ attorneys, finding that $300 per hour
was an appropriate rate for their counsel of record, William
Wheatley Jr., and for Robert Wheatley. The district court also
granted fees for the Winterrowd plaintiffs’ three unsuccessful
motions for summary judgment. The district court denied the
Winterrowd plaintiffs’ request for sanctions against AGAIC’s
counsel.
The district court determined that William Wheatley, Sr.,
an attorney admitted to the Oregon Bar but not the California
Bar, could not recover attorney’s fees for the work he did
while the case was before the district court. The court found
that because Wheatley, Sr.’s “work on this case dealt with
matters of California law for a California client’s claim in the
Central District of California, he is not entitled to recover for
fees that were rendered in violation of the State Bar Act or the
Central District Local Rules.” Wheatley, Sr., was, however,
admitted to the Ninth Circuit Bar, and the court granted the
Winterrowd plaintiffs fees for the time Wheatley, Sr. spent on
the 2002-03 appeal before this court.
On February 22, 2005, the district court granted the Winter-
rowd plaintiffs’ motion for an entry of judgment, “dismissing
1866 WINTERROWD v. AMERICAN GENERAL
this action, pursuant to the terms of the settlement agreement,
and entering judgment awarding plaintiffs attorney’s fees in
the amount” established in the prior order. The Winterrowd
plaintiffs timely appealed from this judgment on the issues of
attorney’s fees and sanctions. AGAIC cross-appealed. While
that appeal was pending, on April 4, 2005, the district court
denied a March 8, 2005 motion for unclaimed attorney’s fees
(seeking attorney’s fees from August 27, 2004, the date that
the original fees motion was filed, until March 7, 2005) stat-
ing that it “finds that it does not have jurisdiction to award
any further attorneys’ fees to plaintiffs by reason of the
appeal.”
On January 22, 2007, the Ninth Circuit Clerk’s Office
remanded the case to the district court because “the district
court has neither entered a final judgment disposing of plain-
tiffs’ underlying claims, nor certified the attorneys fee issue
for interlocutory review pursuant to 28 U.S.C. § 1292(b) or
Fed. R. Civ. P. 54(b).” On January 25, 2007, the district court
issued an order certifying the case for appeal pursuant to 28
U.S.C. § 1292(b). On April 12, 2007, this court denied the
Winterrowd plaintiffs’ petition for permission to appeal pur-
suant to 28 U.S.C. § 1292(b). In response to the dismissal by
our court, the district court dismissed the Winterrowd plain-
tiffs’ underlying claims against AGAIC with prejudice on
September 27, 2007. Once more, the Winterrowd plaintiffs
timely appealed and AGAIC timely cross-appealed.
While these appeals were pending, the district court issued
a minute order on November 7, 2007 denying the Winterrowd
plaintiffs’ motion for fees for work on this case between
March 8, 2005 and October 11, 2007 “without prejudice to its
being renewed after the Ninth Circuit renders a decision.” On
December 3, 2007, the Winterrowd plaintiffs amended their
notice of appeal to include an appeal from this most recent
minute order.
WINTERROWD v. AMERICAN GENERAL 1867
JURISDICTION AND STANDARD OF REVIEW
This court has jurisdiction under 28 U.S.C. § 1291, and
reviews the amount of attorney’s fees awarded by the district
court for abuse of discretion. Nat’l Res. Def. Council, Inc. v.
Winter, 543 F.3d 1152, 1157 (9th Cir. 2008). Nevertheless
“any elements of legal analysis and statutory interpretation
which figure in the district court’s decision are reviewable de
novo.” Id. (citation and internal quotation marks omitted).
“We review for an abuse of discretion the district court’s
denial of a motion for sanctions.” Avery Dennison Corp. v.
Allendale Mut. Ins. Co., 310 F.3d 1114, 1117 (9th Cir. 2002).
DISCUSSION
Attorney’s Fees for Wheatley, Sr.
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 Blackber-
ries, 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 hun-
dreds, 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 ses-
sions with other lawyers in other states, and lawyers and par-
alegals 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 Ludd-
1868 WINTERROWD v. AMERICAN GENERAL
ites, 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, deter-
mined that the Winterrowd plaintiffs were entitled to reason-
able attorneys fee’s under Cal. Lab Code § 218.5 as a matter
of law. However, based on its reading of Birbrower, Montal-
bano, Condon & Frank, P.C. v. Superior Ct. of Santa Clara
County, 17 Cal. 4th 119 (1998), the court held that the Win-
terrowd plaintiffs could not recover fees for the work of attor-
ney Wheatley, Sr., due to his alleged violation of the “State
Bar Act or the Central District Local Rules.”
[1] 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 620.1
The Central District has predicated admission to its bar on
admission to the State Bar of California, except for those per-
mitted to appear pro hac vice. C.D. Cal. L.R. 83-2.2, 93-2.3.1.
As already noted, however, In re Poole makes clear that the
Central District’s local rule does not mean that California
1
Defendants argue that because Birbrower notes that the Central District
of California conditions admission to their bar on active membership in
good standing in the California State Bar, 17 Cal. 4th at 130, the Califor-
nia Supreme Court implied that the State Bar Act applied to attorneys
practicing within the Central District. This is an overly expansive reading
of Birbrower, and is contrary to this court’s subsequent decision in In re
Poole.
WINTERROWD v. AMERICAN GENERAL 1869
state court rules in any way govern practice in the federal
court. In re Poole, 222 F.3d at 620. Since all litigation in this
case took place in federal court, Birbrower is inapposite. The
district court “inappropriate[ly] reli[ed] on state authority to
impose federal discipline” on Wheatley, Sr. In re Poole, 222
F.3d at 622.2
Moreover, we do not read Birbrower as precluding the
Winterrowd plaintiffs from obtaining an award of fees for the
services Wheatley, Sr. The law firm in that case, a New York
partnership, to whom we refer as Birbrower, entered into an
agreement with a client in California to provide legal services
in connection with a dispute there over a contract which by
its terms was governed in every respect by the “internal laws
of the State of California.” Birbrower, 17 Cal. 4th at 125. Bir-
brower attorneys made repeated trips to California where they
discussed matters relating to the legal dispute, provided legal
advice, and made strategy recommendations. Birbrower attor-
neys also made trips to California to meet with the client and
its accountants for the purpose of assisting in settlement of the
dispute.
While the Supreme Court of California held that the fore-
going conduct constituted the practice of law in California,
even though the matter for which Birbrower was retained
never proceeded to litigation, it went on to address an issue
of first impression, namely, the meaning of the phrase prac-
tice of law “in California” which was proscribed by § 6125 of
the California Business and Professional Code. In so doing, it
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
2
Defendant’s, and the dissent’s, reliance on Z.A. v. San Bruno Park
School District, 165 F.3d 1273, 1276 (9th Cir. 1999) is also misplaced, as
Z.A. involved fees that were incurred in a state administrative proceeding.
1870 WINTERROWD v. AMERICAN GENERAL
representation. In addition to a quantitative analysis,
we must consider the nature of the unlicensed law-
yer’s activities in the state. Mere fortuitous or attenu-
ated 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.
Birbrower, 17 Cal. 4th at 128. The Birbrower Court then went
on to explain that its definition “does not necessarily depend
on or require the unlicensed lawyer’s physical presence in the
state.” Id. Instead, it held that “[p]hysical presence here is one
factor we may consider in deciding whether the unlicensed
lawyer has violated section 6125, but it is by no means exclu-
sive.” Id. It then went on to provide the following example:
[O]ne 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 con-
nection with a California legal dispute by telephone,
fax, computer, or other modern technological means.
Conversely, although we decline to provide a com-
prehensive list of what activities constitute sufficient
contact with the state, we do reject the notion that a
person automatically practices law “in California”
whenever that person practices California law any-
where, or “virtually” enters the state by telephone,
fax, e-mail, or satellite.
Id. at 128-29 (emphasis in original).
Applying these guidelines to the facts in Birbrower, the
Supreme Court of California held that Birbrower was not enti-
tled to counsel fees because it “engaged in unauthorized law
practice in California on more than a limited basis, and no
firm attorney engaged in that practice was an active member
WINTERROWD v. AMERICAN GENERAL 1871
of the California State Bar.” Id. at 131 (emphasis in original).
Nevertheless, while Birbrower was denied legal fees for the
work it did in California, it was permitted to recover for ser-
vices performed in New York. Id. at 135-36.
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 pre-
emption. 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 prose-
cuting 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. More recently, in Frye v.
Tenderloin Housing Clinic, Inc., 38 Cal. 4th 23 (2006), the
Supreme Court of California said that in Birbrower, “we con-
cluded that an out-of-state law firm was not entitled to a judg-
ment enforcing its client’s obligations under a fee agreement
for legal services rendered in California, because neither the
firm nor its lawyers were authorized to practice law in Cali-
fornia.” Id. at 48-49 (emphasis in original). While we discuss
the considerations of policy that would have justified a differ-
ent outcome in Birbrower, if one of the members of the firm
1872 WINTERROWD v. AMERICAN GENERAL
was admitted in California, we think it clear that Wheatley,
Sr. would be entitled to be compensated under California
Labor Code § 218.5.
[2] Nevertheless, even if our view of California law is
incorrect, the State Bar Act and Birbrower do not control.3
Instead, we look to the Central District’s rules as well as fed-
eral case law to determine whether Wheatley, Sr. was
engaged in the unauthorized practice of law and whether the
Winterrowd plaintiffs may recover attorney’s fees for Wheat-
ley, Sr’s work. The Central District requires any person “who
is a member of good standing of, and eligible to practice
before, the bar of any United States Court, or of the highest
court of any State . . . and who has been retained to appear
before this Court, may, upon written application and in the
discretion of the Court, be permitted to appear and participate
pro hac vice in a particular case.” C.D. Cal. L. R. 83-2.3.1.
Case law suggests two ways in which the Winterrowd
plaintiffs could be able to recover fees for Wheatley, Sr.’s
work. The first is if the attorney at issue would have certainly
been permitted to appear pro hac vice as a matter of course
had he or she applied. The leading circuit court case on this
issue, Spanos v. Skouras, 364 F.2d 161, 168 (2d Cir. 1966)
(en banc), permitted an out-of-state attorney to receive fees
for work related to a case in federal court when it was certain
he would have been admitted pro hac vice as a matter of
course. In Spanos, a California attorney (Spanos) worked in
3
The dissent believes that because California substantive law applies
regarding the method of calculating of fees themself, the California State
Bar Act should apply to out-of-state attorneys practicing in federal court.
Dissent, at 1883-85. This cognitive leap is not supported by California
caselaw. Indeed, Birbrower reaffirmed the rule that “the [Bar] Act does
not regulate practice before United States Courts.” Birbrower, 17 Cal. 4th
at 130. Thus, if services rendered by an out-of-state attorney do not consti-
tute the practice of law, as that term is construed under the applicable fed-
eral rule, then he is entitled to recover his fees. Id. We discuss this issue
infra, page 1874-75.
WINTERROWD v. AMERICAN GENERAL 1873
the Southern District of New York, in conjunction with local
lawyers, on an antitrust matter arising under federal law. Id.
at 167-68. Spanos spent several years working on the case,
but his client ultimately discharged him and refused to pay
him a contractually agreed-upon contingency fee when the
antitrust dispute settled. Id. at 163. Spanos sued for fee pay-
ment in the district court. On reconsideration en banc, the
Second Circuit held that while Spanos had not sought admis-
sion to practice pro hac vice in the Southern District, “it ‘can-
not be seriously doubted that at any time on motion, the
admission of Spanos pro hac vice would have been autho-
rized’ ” by the district court. Id. at 168 (noting that Spanos
was well trained and a member in good standing of the Cali-
fornia Bar). California state courts have held similarly. See
Cowen v. Calabrese, 230 Cal. App. 2d 870, 872 (1964) (indi-
cating that an Illinois attorney was able to collect fees when
it “appear[ed] certain” that the lawyer would have been
admitted to practice before the federal court “as a matter of
comity”).
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 Col-
lege of Trial Lawyers, and has been listed in The Best Law-
yers 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.
Although this information leads us to believe he would have
most likely been admitted pro hac vice, the Central District
has noted situations which disqualify otherwise qualified
attorneys from pro hac vice admission, such as when an attor-
ney “(a) Resides in California; or (b) Is regularly employed in
California; or (c) Is regularly engaged in business, profes-
sional, or other similar activities in California.” C.D. Cal. L.
1874 WINTERROWD v. AMERICAN GENERAL
R. 83-2.3.2 Because the record has not been developed as to
these facts, we decline to rest our reasoning upon Spanos.4
[3] 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.
[4] Wheatley, Sr.’s role was similar to such litigation sup-
port or consultants, and distinguishable from an “appearance.”
See United States v. Wunsch, 84 F.3d 1110, 1115 (9th Cir.
1996) (holding that an attorney had “appeared” when he iden-
tified himself as counsel in the court’s appearance form, phys-
ically came into court, signed pleadings, and identified
himself as counsel to opposing counsel). Wheatley, Sr. never
appeared or argued in front of the district court, nor did he
sign briefs. He had the role of advising his son and reviewing
pleadings, which he did with minimal, nonexclusive contact
with the client and no communication with opposing counsel.
Moreover, Wheatley, Sr. did not even physically enter the
State of California in connection with the prosecution of this
case.
[5] We find the reasoning of Dietrich Corp. v. King
Resources, Co., 596 F.2d 422 (10th Cir. 1979) persuasive on
this point. In Dietrich, an attorney who was not licensed in
Colorado acted as a consultant in a large securities litigation
4
We do note, however, that if the record indicated a reason why Wheat-
ley, Sr. would not have been admitted pro hac vice (such a bar suspension
or unlawyerlike conduct), we could end our inquiry here and refuse to
allow the Winterrowd plaintiffs to collect fees for his work.
WINTERROWD v. AMERICAN GENERAL 1875
case. In determining whether he should be able to collect fees
for his work, the court reasoned:
Is what he did, providing services in the field of his
legal expertise to or through established law firms,
with no court appearances as an attorney, the prac-
tice of law in Colorado? The cases and ethics opin-
ions we have seen involved either court appearances
as counsel for private clients or the rendering of
legal services directly to a client. . . . Law firms have
always hired unlicensed student law clerks, parale-
gals and persons who have not completed their legal
education but are awaiting admission to the bar. . . .
No one has treated this activity as the unauthorized
practice of law, because the licensed attorneys alone
remain responsible to the clients, there are no court
appearances as attorney, and no holding out of the
unlicensed person as an Independent giver of legal
advice.
Id. at 426 (citing Spanos, 364 F.2d at 169). The court held
that the out-of-state attorney should be “treated as a lawyer
whose services in the instant case did not constitute the unau-
thorized practice of law,” and that he could recover fees. Id.The court emphasized that its holding should be limited to
instances where the unlicensed attorney’s work is filtered
through a licensed in-state attorney, who is admitted to the
local court and subject to its discipline. Id. This is the case
here as well, where Wheatley, Sr.’s work was at all times fil-
tered through Wheatley, Jr., who was admitted to the Central
District and subject to its discipline.
In an effort to avoid the compelling force of the holding in
Dietrich, our dissenting colleague argues that “Dietrich
involved the practice of law, and rules of professional respon-
sibility, in Colorado,” and that “the Tenth Circuit posed the
question and gave its answer, with respect to the practice of
law in Colorado.” Dissent, at 1891. We do not read Dietrich
1876 WINTERROWD v. AMERICAN GENERAL
in so restrictive a manner. While the attorney seeking fees
was not admitted to practice in Colorado, the Tenth Circuit
did not cite a single Colorado case or any rule of professional
responsibility specific to Colorado. The only case it did cite
was Judge Friendly’s opinion for the Second Circuit in
Spanos. Dietrich, 596 F.2d at 426.
Moreover, the ethical rule which it found persuasive was an
opinion of the ABA Committee on Professional Ethics, obvi-
ously not limited to Colorado. Id. The opinion addressed the
issue of the practice of law by partnerships when not all law-
yers were admitted to practice in the same state. In a portion
of the ethical rule which the Tenth Circuit found particularly
relevant, the ABA Committee observed that “there are no eth-
ical barriers to carrying on the practice by such a firm in each
state so long as the particular person admitted in that state is
the person who, on behalf of the firm, vouched for the work
of all of the others and, with the client and in the courts, did
the legal acts defined by that state as the practice of law . . . .
The important requirement in this respect is simply that the
local man must be admitted in the state and must have the
ability to make, and be responsible for making, decisions for
the lawyer group.” Id. (citing ABA Comm. on Prof’l Ethics
Opinions, No. 316 (1967)) (emphasis in original).
While Dietrich did not arise in the context of a firm part-
nership, the Tenth Circuit concluded that its rationale applied
equally to the attorney seeking fees there because, as was the
case in both Spanos and the ABA Opinion, “an individual
trained in the law act[ed] as a filter between the unlicensed
person . . . and the lay client, adding and exercising indepen-
dent professional judgment, and, importantly, is an officer of
the local court subject to its discipline.” Id. This holding, as
we observed earlier, is consistent with California law. See
Birbrower, 17 Cal. 4th at 131; Frye, 38 Cal. 4th 23.
The dissenting opinion also suggests that Dietrich is not
persuasive because it “involved a fee splitting agreement, not
WINTERROWD v. AMERICAN GENERAL 1877
a fee-shifting statute which is at issue in our case.” Dissent,
at 1891. While we are not certain which way this distinction
cuts, see Frye, 38 Cal. 4th at 49, it ignores the fact that the
central issue in Dietrich turned on what constituted the prac-
tice of law. Dietrich, 596 F.2d at 426. Because it concluded
that the conduct of the attorney there did not constitute the
practice of law, the Court of Appeals held that he was entitled
to legal fees. Id. This is precisely the issue we address in this
case.
[6] We hold that because Wheatley, Sr., a non-member of
the California Bar, did not physically appear before the Cen-
tral District, did not sign pleadings in the case before the Cen-
tral District, had minimal, nonexclusive contacts with the
Winterrowd plaintiffs, that Wheatley, Jr., who was licensed to
practice law in California, was the person who alone remained
responsible to the plaintiffs, and that Wheatley, Sr. did not
render legal services directly to the plaintiffs, the Winterrowd
plaintiffs may recover attorney’s fees for his work in the case
prosecuted before the district court in the Central District.5
5
There is evidence that the California state courts would view the case
this way. In 2004, California Rule of Court 966 (which has since been
renumbered as 9.47) was enacted, which permits out of state attorneys to
practice law in California when they:
(1) Maintain an office in a United States jurisdiction other than
California and in which the attorney is licensed to practice law;
(2) Already be retained by a client in the matter for which the
attorney is providing legal services in California, except that the
attorney may provide legal advice to a potential client, at the
potential client’s request, to assist the client in deciding whether
to retain the attorney; (3) Indicate on any Web site or other adver-
tisement that is accessible in California either that the attorney is
not a member of the State Bar of California or that the attorney
is admitted to practice law only in the states listed; and (4) Be an
active member in good standing of the bar of a United States
state, jurisdiction, possession, territory, or dependency.
Although not completely analogous to this case, it is an indication that the
state court system is moving towards being more amenable to a multi-
jurisdictional practice.
1878 WINTERROWD v. AMERICAN GENERAL
Our holding does not adversely impact the very important
role pro hac vice admissions play in our federal court system.
An out of state attorney must still apply for pro hac vice
admission if that attorney appears in court, signs pleadings, or
is the exclusive contact in a case with the client or opposing
counsel. Moreover, an attorney may not receive attorney’s
fees under the holding in this case if there is evidence he did
not meet the legal qualifications to be admitted pro hac vice
to the bar of the relevant court had he applied; thus, disbarred,
suspended or otherwise unqualified attorneys may not be the
beneficiaries of the holding in this case. Although we agree
with the dissent that “there is a reason behind” the pro hac
vice rule, we need not apply the rule in a draconian fashion
when the attorney has not “appeared” in front of the court,
thus denying the Winterrowd plaintiffs their statutory right to
recover fees.
Plaintiffs’ Request for Sanctions
The Winterrowd plaintiffs claim that the district court
abused its discretion by failing to make findings of fact with
respect to their request for sua sponte sanctions under Rule
11, Rule 56(g), and the district court’s “inherent authority” to
impose sanctions. The basis for the Winterrowd plaintiffs’
requests for sanctions is AGAIC’s pursuit of various ERISA
theories at the outset of the litigation, and the discrepancy
between a declaration and deposition testimony, which they
believe is evidence of bad faith conduct.
[7] The Winterrowd plaintiffs’ request for Rule 11 sanc-
tions was procedurally defective. A Rule 11 motion for sanc-
tions must be served on opposing counsel twenty-one days
before filing the motion with the court, providing the oppos-
ing counsel a “safe harbor . . . to give the offending party the
opportunity . . . to withdraw the offending pleading and
thereby escape sanctions.” Barber v. Miller, 146 F.3d 707,
710 (9th Cir. 1998); see also Fed. R. Civ. P. 11(c)(2). Failure
to provide the required notice precludes an award of Rule 11
WINTERROWD v. AMERICAN GENERAL 1879
sanctions upon Wintterrowd’s motion. Barber, 146 F.3d at
710 (holding that “[a]n award of [Rule 11] sanctions cannot
be upheld” where party seeking sanctions did not provide
twenty-one day notice period). Thus the district court was cor-
rect as a matter of law that there was “no basis” for awarding
Rule 11 sanctions.
[8] The district court also did not abuse its discretion by
failing to make specific findings to support its denial of the
request for sanctions under Rule 56(g) and under the court’s
“inherent authority.” A district court does not as a matter of
law abuse its discretion by summarily denying a request for
sanctions without making specific findings of facts. Air Sepa-
ration, Inc. v. Lloyd’s of London, 45 F.3d 288, 291 (9th Cir.
1995). The district court’s summary denial of the sanctions
motion necessarily implies that it found no bad faith, and we
affirm this finding.
Calculation of a Reasonable Hourly Rate
The Winterrowd plaintiffs argue that the district court erred
in its calculation of the reasonable hourly rate for Wheatley,
Jr. Winterrowd paintiffs argue that under California law, the
hourly rate determination must be made according to the
“market rate” — the rate typically charged by “private attor-
neys in the community conducting non-contingent litigation
of the same type” — and the district court erred by ignoring
the evidence presented with respect to the market rate and
instead improperly considering evidence related to the “cus-
tomary rate” that Wheatley, Jr. ordinarily charges clients.
The California Supreme Court has repeatedly confirmed
the discretion of the trial court in determining appropriate fee
awards: “The ‘experienced trial judge is the best judge of the
value of professional services rendered in his court, and while
his judgment is of course subject to review, it will not be dis-
turbed unless the appellate court is convinced that it is clearly
wrong’ — meaning that it abused its discretion.” PLCM Grp.
1880 WINTERROWD v. AMERICAN GENERAL
v. Drexler, 997 P.2d 511, 518 (Cal. 2000) (citing Serrano v.
Priest, 20 Cal 3d. 25, 49 (1977); Fed-Mart Corp. v. Pell
Enter., Inc., 111 Cal. App. 3d 215, 228 (1980)).
[9] The district court’s setting of Wheatley, Jr.’s reasonable
hourly rate at $300 was well-supported by the evidence pro-
duced on market rates. The Winterrowd plaintiffs’ own expert
indicated that the range for associate salaries of comparable
experience to Wheatley, Jr. was $200-$435 per hour. The dis-
trict court’s $300 per hour rate is in line with the range sug-
gested by the declarations, and therefore the district court did
not abuse its discretion in making the factual determination of
Wheatley, Jr.’s reasonable rate.
Request for Post-Judgment Attorney’s Fees
The Winterrowd plaintiffs argue that the district court erred
in dismissing their Rule 54 motion for “post-judgment” fees
in the April 4, 2005 and November 7, 2007 orders. On review
of these orders, it is clear that the district court has yet to rule
on the issue of post-judgment fees. Remand is appropriate on
the issue of what, if any, fees should be awarded for the
period between August 27, 2004 to October 11, 2007.
Insufficiently Documented Fee Claims
AGAIC argues in its cross-appeal that the district court
abused its discretion in failing to strike fee claims by Wheat-
ley, Jr. and Robert Wheatley that were “vague or insuffi-
ciently documented.”
State law establishes the required showing for attorney’s
fees in an action in diversity. See Kern Oil & Refinding Co.
V. Tenneco Oil Co., 792 F.2d 1380, 1388-89 (applying stan-
dards under Texas law for setting fee award). Under Califor-
nia law, “[t]o enable the trial court to determine whether
attorney fees should be awarded and in what amount, an attor-
ney should present ‘(1) evidence, documentary and oral, of
WINTERROWD v. AMERICAN GENERAL 1881
the services actually performed; and (2) expert opinion, by
[the applicant] and other lawyers, as to what would be a rea-
sonable fee for such services.’ ” Martino v. Denevi, 182 Cal.
App. 3d 553, 558 (1986) (citations omitted). While “[s]ome
federal courts require that an attorney maintain and submit
‘contemporaneous, complete and standardized time records’
. . . . , [i]n California, an attorney need not submit contempo-
raneous time records in order to recover attorney fees.” Id. at
559. “Testimony of an attorney as to the number of hours
worked on a particular case is sufficient evidence to support
an award of attorney fees, even in the absence of detailed time
records.” Id.[10] As Wheatley, Jr. and Robert Wheatley met the require-
ments under California law of showing “evidence, documen-
tary and oral, of the services actually performed,” the district
court did not abuse its discretion by finding that the evidence
the Winterrowd plaintiffs submitted was sufficient for the
court to determine the plaintiffs’ reasonable fees.
Reasonableness of Fees for Failed Motions
AGAIC argues on cross-appeal that the district court erred
by failing to require the Winterrowd plaintiffs to show the
reasonableness of three failed motions for summary judgment
before awarding fees for time spent on those motions.
Under California law, “[i]t is only when a plaintiff has
achieved limited success or has failed with respect to distinct
and unrelated claims, that a reduction from the lodestar is
appropriate.” Hogar v. Community Dev. Com. of Escondido,
157 Cal. App. 4th 1358, 1369 (2007) (citation omitted).
“However, where a lawsuit consists of related claims, a plain-
tiff who has won substantial relief should not have his [or her]
attorney’s fee reduced simply because the [trial] court did not
adopt each contention raised.” Id. (citations omitted). The
party seeking fees is not required to show the reasonableness
of every failed claim.
1882 WINTERROWD v. AMERICAN GENERAL
Here, the record provides adequate support for the district
court’s conclusion that the failed motions were reasonable and
compensable. The first summary judgment motion sought
recovery for breach of contract but was denied on the ERISA
preemption grounds, a theory overruled by this court on
appeal. Likewise, the motion for reconsideration was also
denied on grounds of ERISA preemption. After our reversal
and remand on the ERISA issue, the motion for an entry of
judgment was the first time the district court had addressed
the breach of contract issue on the merits.
[11] AGAIC does not contest the district court’s finding
that the Winterrowd plaintiffs “ultimately attained one-
hundred percent of the recovery they sought, despite defen-
dant’s opposition at every stage.” Moreover, this was the pre-
cise recovery that Winterrowd sought through the contract
claims he advanced in the three motions. The failed motions
appear reasonably related to the ultimate victory, and the dis-
trict court did not abuse its discretion by not requiring the
plaintiffs to prove reasonableness nor in allowing fees for
these motions.
Request for Sanctions under FRAP 38
[12] Finally, we must address the Winterrowd plaintiffs’
request for sanctions against AGAIC under Federal Rule of
Appellate Procedure 38. AGAIC contends that this request is
procedurally defective because Rule 38 requires a separate
motion for fees. “A request made in an appellate brief does
not satisfy Rule 38” and must be denied. See Higgins v. Vor-
tex Fishing Systems, Inc., 379 F.3d 701, 709 (9th Cir. 2004).
Further, it is clear to us that AGAIC’s arguments on its cross-
appeal do not merit sanctions. “An appeal is considered frivo-
lous when the result is obvious or the appellant’s arguments
of error are wholly without merit.” Operat. Eng. Pension
Trust v. Cecil Backhoe Svc., 795 F.2d 1501, 1508 (9th Cir.
1986)(citation omitted). The Winterrowd plaintiffs’ request
for sanctions is denied with prejudice.
WINTERROWD v. AMERICAN GENERAL 1883
Conclusion
We AFFIRM the October 20, 2004 order of the district
court in all respects except for the denial of fees for Wheatley,
Sr.’s work. We REVERSE and REMAND this case to the dis-
trict court for determination of the amount due to the Winter-
rowd plaintiffs for Wheatley, Sr.’s work on the district court
portion of this case, and we REMAND to the district court for
a determination in the first instance of what, if any, attorney’s
fees are owed to the Winterrowd plaintiffs for the period from
August 27, 2004 to October 11, 2007.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, AND REVERSED AND
REMANDED IN PART
RYMER, Circuit Judge, concurring in part, dissenting in part:
I part company because I cannot agree with the majority’s
take on why an experienced attorney such as William Wheat-
ley, Sr., who provided substantial legal advice in aid of Win-
terrowd’s action in California yet is not admitted to practice
in the State of California or in the Central District of Califor-
nia, is nevertheless entitled to attorney’s fees under § 218.5 of
the California Labor Code.1 I am unaware of any authority
construing § 218.5 to allow recovery of attorney’s fees for the
work of a non-admitted attorney — or “consultant” — in
these circumstances.
California substantive law determines the availability and
1
California Labor Code § 218.5 provides that “[i]n any action for non-
payment of wages . . . the court shall award reasonable attorney’s fees and
costs to the prevailing party if the party to the action requests attorney’s
fees and costs upon the initiation of the action.”
1884 WINTERROWD v. AMERICAN GENERAL
amount of attorney’s fees in this diversity case. Mangold v.
California Pub. Util. Comm’n, 67 F.3d 1470, 1478 (9th Cir.
1995). Birbrower, Montalbano, Condon, & Frank v. Superior
Court is the leading California authority on whether a non-
admitted, out-of-state attorney may recover attorney’s fees for
work on California legal matters. 949 P.2d 1 (Cal. 1998). The
general rule is that “[n]o one may recover compensation for
services as an attorney at law in this state unless [the person]
was at the time the services were performed a member of The
State Bar.” Id. at 5 (quoting Hardy v. San Fernando Valley
Cham. of Comm., 99 Cal.App.2d 572, 576 (1950)). Birbrower
recognizes exceptions,2 including that the state cannot regu-
late practice before a federal court — in this case, the United
States District Court for the Central District of California.3
But Wheatley, Sr. never fulfilled the requirements for practice
before the Central District, either. Only attorneys who are
active members in good standing of the State Bar of Califor-
nia, or those who are permitted to appear pro hac vice, may
appear and participate in a particular case in the Central Dis-
trict of California.4 An attorney such as Wheatley, Sr., who is
2
The recognized exceptions are brief, consensual appearances before a
state court or tribunal, permission to appear pro hac vice, practice before
the United States courts, certificates allowing foreign legal consultants to
advise on the law of the foreign jurisdiction where they are admitted, and
representing parties in arbitration or conciliation of certain international
commercial disputes. Id. at 6-7.
3
Birbrower, 949 P.2d at 6; Cowen v. Calabrese, 230 Cal.App.2d 870,
872 (1964). In re Poole, upon which the majority relies, is to the same
effect. It holds that “[a]dmission to practice law before a state’s courts and
admission to practice before the federal courts in that state are separate,
independent privileges.” 222 F.3d 618, 620 (9th Cir. 2000). However,
Poole does not speak to the question in this case, which is whether an out-
of-state attorney who is not admitted by either the state or the federal dis-
trict court is entitled to fees under a California fee-shifting statute.
4
The Central District’s Local Rule 83-2.3 governs pro hac vice appear-
ance. Section 83-2.3.1 provides:
Permission to Appear Pro Hac Vice. Any person who is not oth-
erwise eligible for admission to practice before this Court, but
WINTERROWD v. AMERICAN GENERAL 1885
not admitted to practice in California but is a member of the
bar of the Supreme Court of Oregon, may submit a written
application for permission to appear and participate pro hac
vice, which may be granted in the court’s discretion. C.D. Cal.
R. 83-2.3.1. An attorney is disqualified from permission to
practice pro hac vice if he resides in California, is regularly
employed in California, or is regularly engaged in business,
professional, or similar activities in California. Id., R. 83-
2.3.2.
It is not for us to surmise that Wheatley, Sr. would have
been granted permission to appear and participate pro hac
vice had he applied, because he never did. Permission is not
automatic even for distinguished lawyers. And it is by no
means clear that Wheatley, Sr., although otherwise qualified
by virtue of his admission to the bar of the highest court in
Oregon as well as to the bar of the Court of Appeals for the
Ninth Circuit, would not be disqualified on account of regu-
larly engaging in professional activities in California.
who is a member in good standing of, and eligible to practice
before, the bar of any United States Court, or of the highest court
of any State, Territory or Insular Possession of the United States,
who is of good moral character, and who has been retained to
appear before this Court, may, upon written application and in the
discretion of the Court, be permitted to appear and participate pro
hac vice in a particular case.
Section 83-2.3.2 provides:
Disqualification from Pro Hac Vice Appearance. Unless autho-
rized by the Constitution of the United States or Acts of Con-
gress, an applicant is not eligible for permission to practice pro
hac vice if the applicant:
(a) Resides in California; or
(b) Is regularly employed in California; or
(c) Is regularly engaged in business, professional, or other simi-
lar activities in California.
1886 WINTERROWD v. AMERICAN GENERAL
As Wheatley, Sr. was neither admitted to practice by the
California State Bar, nor by the Central District of California,
I do not believe that he is entitled to an award of attorney’s
fees. Therefore, I would affirm.
I
At the outset, I disagree with the majority that California
rules are irrelevant and that Birbrower is inapposite. Maj. op.
at 1869, 1872. Rather, in my view, California substantive law
applies. Mangold, 67 F.3d at 1478; Z.A. v. San Bruno Park
Sch. Dist., 165 F.3d 1273, 1276 (9th Cir. 1995). As we said
in Z.A., “[t]he Birbrower decision defined the practice of law
in California within the meaning of Cal. Bus. & Prof. Code
§ 6125 and described exceptions to § 6125 where the practice
of law in California by attorneys not admitted to the Califor-
nia bar is allowed.” 165 F.3d at 1276.
Birbrower involved a New York law firm that was not
licensed to practice law in California. The firm performed
legal services in California for a California-based client under
a fee agreement stipulating that California law would govern
all matters in the representation. The California Supreme
Court invalidated the fee agreement to the extent it authorized
payment for the services performed by the firm’s lawyers in
California because practicing law without a license violated
California Business and Professions Code § 6125,5 but not to
the extent fees were earned for services performed in New
York. Defining what the practice of law “in California”
means, the court held that “[t]he 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.” Birbrower,
949 P.3d at 5. It concluded that an attorney may practice “in
5
Section 6125 is part of the State Bar Act, and provides: “No person
shall practice law in California unless the person is an active member of
the State Bar.”
WINTERROWD v. AMERICAN GENERAL 1887
California” without being physically present, or appearing in
court, in the state. Id. at 5, 10 (noting that physical presence
in the state is one factor that may be considered but is not
exclusive; and rejecting an exception to the general rule that
an attorney is barred from recovering compensation for ser-
vices rendered in another state not involving courtroom
appearance).
Wheatley, Sr.’s activity in this California case was substan-
tial. He gave 140 hours worth of advice and counsel, billing
at the rate of $550 per hour. His activities ran the gamut of
considering the complaint, amending the pleadings, working
on discovery, assisting on summary judgment, and reviewing
various legal issues that came up during the course of the pro-
ceeding. To avoid the application of Birbrower, Winterrowd
primarily relies on the “federal exception” which, he argues,
covers any work an out-of-state attorney does in a matter
pending before a United States court, regardless of whether
that attorney is admitted or could satisfy the conditions for
admission to practice in that court. However, there is no sup-
port for construing this exception so broadly. As I read Bir-
brower, attorney’s fees may only be awarded for the practice
of law in California with permission of the legislature or with
consent of a court, state or federal. Wheatley, Sr. had no such
leave.
The majority’s attempts to distinguish Birbrower also fall
short. To the extent that the majority suggests that Wheatley,
Sr. and his son were in a legal partnership — there was no
partnership. (A formal partnership would have made this a
very different case.) The relevant firm was Wheatley, Sr.’s
Oregon firm, and the only attorney from that firm who
worked on this case was Wheatley, Sr., who is not admitted
to the California bar. And while ERISA preemption may have
once been an issue in the case, that issue fell out after our
opinion in 2003. Winterrowd has always maintained that the
case presented a contract dispute arising under California law;
the plaintiffs were California residents; the underlying con-
1888 WINTERROWD v. AMERICAN GENERAL
tract was to be performed in California; and the matter was
litigated in a federal court in California exercising its diversity
jurisdiction. Furthermore, Birbrower explicitly forecloses the
argument that, because Wheatley, Sr. did his work in Oregon,
he could not be practicing law “in California.” Rather, Wheat-
ley, Sr.’s work on this case appears to be the practice of law
“in California” under Birbrower’s fact-specific test.
While it may be that courts are sometimes able to say that
an out-of-state attorney would “certainly” have been admitted
to federal court and that this certainty suffices in lieu of actual
authorization, see Spanos v. Skouras Theatres Corp., 364 F.2d
161, 168-69 (2d Cir. 1966) (en banc); Cowen, 230 Cal.App.2d
at 872, there is no basis for saying so here. Unlike the Local
Rules of the Southern District of New York at issue in
Spanos, which permitted “[a] member in good standing of the
bar of any state” to be admitted pro hac vice, the Local Rules
of the Central District make authorization both discretionary
and conditional. Wheatley, Sr. neither applied for authoriza-
tion nor submitted any evidence from which the district court,
or we, can be sure that he is not disqualified.6
As I see it, Wheatley, Sr. either was or wasn’t authorized
to practice in California. He was not authorized to practice
law by the State of California, or by the Central District. To
me, it follows that there is no permissible basis upon which
Wheatley, Sr. could give legal advice relating to Winter-
rowd’s action in the District Court for the Central District of
California for which attorney’s fees are recoverable under
California law.
6
To the contrary, Wheatley, Sr.’s declaration in support of Winter-
rowd’s request for fees implicates C.D. Cal. R. 83-2.3.2. He states: “I have
worked with [Wheatley, Jr.] on other cases, including one California case
in which a multimillion dollar judgment was obtained against Southern
California Edison.” This raises a question about whether Wheatley, Sr. is
“regularly employed in California,” or is “regularly engaged in business,
professional, or other similar activities in California.”
WINTERROWD v. AMERICAN GENERAL 1889
II
I am not persuaded otherwise by the majority’s view that
there are alternate grounds upon which Winterrowd can
recover fees for Wheatley, Sr.’s work. The majority first sug-
gests that Wheatley, Sr.’s conduct did not rise to the level of
“appearing” in court. It reasons that 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.” Maj. op. at 1874. Certainly we have,
but only when federal law was applicable. The case upon
which the majority relies, Nat’l Res. Def. Council, Inc. v. Win-
ter (NRDC), allowed fees for a law school graduate acting as
a consultant for NRDC under the Equal Access to Justice Act,
28 U.S.C. § 2412. 543 F.3d 1152 (9th Cir. 2008). However,
NRDC sheds no light on the availability of attorney’s fees for
Wheatley, Sr.’s work under California law.7
Nor do I see how the work done by Wheatley, Sr., or the
fees that he requests, can reasonably be analogized to the
work done, or the fees charged, by paralegals, database man-
agers, legal support, summer associates, or law school gradu-
ates who have yet to pass the bar.8 Wheatley, Sr. gave
Winterrowd’s case the benefit of 140 hours of his professional
judgment, for which he billed at the rate of $550 per hour.
Perhaps I am wrong, but I don’t think even a summer asso-
ciate (yet) commands $550 per hour. Rather, Wheatley, Sr.
rendered the sort of services one would expect of a practicing
7
California courts have held that attorney’s fees are available for the
services of paralegals in order fully to compensate the attorney. See, e.g.,
Guinn v. Dotson, 23 Cal.App.4th 262 (1994). Aside from the implausibil-
ity of putting Wheatley, Sr. in the ranks of a paralegal, there is no evi-
dence that the same rationale has any bearing in this case for nothing in
this record suggests Wheatley, Jr. would have to pay his father if Wheat-
ley, Sr. were not compensated under the fees statute.
8
Wheatley, Sr. obviously did not think of his own services this way, as
his bill included charges for the work of a “law clerk” at the rate of $100
per hour.
1890 WINTERROWD v. AMERICAN GENERAL
lawyer, at a rate one would expect a practicing lawyer to
charge. In fact, the expert justification for his fee request is
based on comparable billing rates for senior partners in Los
Angeles firms.
Next, the majority supposes that Wheatley, Sr.’s role is
similar to “litigation support or consultants, and distinguish-
able from an ‘appearance.’ ” Maj. op. at 1874. While I agree
that Wheatley, Sr. did not “appear” in the district court by
signing papers or arguing (as he did in our court on this
appeal), I disagree that this answers the right question. The
question is whether what he did — not what he didn’t do —
constitutes the practice of law in California such as to pre-
clude him from recovering statutory fees. Under California
law, a non-admitted attorney can practice law without appear-
ing in court or signing papers. See Birbrower, 949 P.2d at 5,
10.
Even assuming that Wheatley, Sr.’s role was similar to a
“consultant,” the majority points to no support in California
law for the proposition that “consultants” doing the kind of
work for which Wheatley, Sr. billed would be entitled to stat-
utory fees. As the district court thought, this would circum-
vent the rules of practice as set out in Birbrower.9
9
The majority insists that if Wheatley, Sr.’s work “do[es] not constitute
the unauthorized practice of law” in federal court, “then he is entitled to
recover fees.” Maj. op. at 1872 n.3. I believe, however, that this conflates
two issues. Even if Wheatley’s work were not unauthorized under federal
law, there would remain the separate question of whether Wheatley, Sr. is
entitled to state law statutory fees as a “consultant,” and this question
would be resolved under California law, which would take into account
the policies embodied in Birbrower.
At most, the majority suggests that California courts might now see this
differently in light of supervening California Rule of Court 9.47 (formerly
California Rule of Court 966), which permits out-of-state practitioners to
practice law in California under limited circumstances. Maj. op. at 1877,
n.5. However, Rule 9.47 only applies to out-of-state attorneys who are
already retained by a client or are providing advice to a potential client to
assist the client in deciding whether to retain the attorney. Wheatley, Sr.’s
services fit neither category.
WINTERROWD v. AMERICAN GENERAL 1891
Finally, the majority finds Dietrich Corp. v. King
Resources, Co., 596 F.2d 422 (10th Cir. 1979), persuasive. I
do not, because Dietrich involved the practice of law, and
rules of professional responsibility, in Colorado. Dietrich also
involved a fee splitting agreement, not a fee-shifting statute
which is at issue in our case. As the Tenth Circuit noted,
“each state itself determines what is the practice of law and
who may practice law.” Id. at 426. The problem there was
whether Colorado counsel could ethically share fees on a con-
tingency basis pursuant to a fee agreement with a law profes-
sor who was an expert in legal accounting, was employed as
a consultant by lead counsel in actions pending in the United
States District Court for the District of Colorado, and was not
admitted to practice in Colorado when the services were ren-
dered. Id. at 424-26. The Tenth Circuit held that the professor
should be treated as a lawyer for purposes of the canons. Id.
at 426. It concluded that his services did not constitute the
unauthorized practice of law under the cases and ethics opin-
ions it studied, given that admitted counsel acted as a filter
between the unlicensed professor, the client, and the court. Id.However, the Tenth Circuit posed the question, and gave its
answer, with respect to “the practice of law in Colorado.” Id.(emphasis added). So, regardless of how sensible the com-
mentary which the majority recites may appear, Maj. op. at
1874-75, it doesn’t speak to what constitutes the practice of
law in California.10
10
I also question the support that the majority finds in the ABA ethical
opinion that the Tenth Circuit discussed in Dietrich. Neither party has
raised the applicability of ABA authority to Wheatley, Sr.’s case and there
is no indication that the relevant ABA rules are part of the legal landscape
in California, which has not adopted the ABA Model Rules of Profes-
sional Conduct. See City and County of San Francisco v. Cobra Solutions,
135 P.2d 20, 28-30 (Cal. 2006) (rejecting ABA approach of limited “ethi-
cal screening” of government attorneys from matters related to former pri-
vate practice, and disqualifying entire City Attorney’s office from
prosecuting department head’s former client); State Compensation Ins.
Fund v. WPS, Inc., 70 Cal App. 4th 644, 655-56 (1999) (“[T]he ABA
Model Rules . . . do not establish the ethical standards in California, as
they have not been adopted in California and have no legal force of their
own.”). Moreover, Dietrich considered the ABA opinion in the context of
the Model Code of Professional Responsibility, which has since been
superceded by the Model Rules.
1892 WINTERROWD v. AMERICAN GENERAL
The ultimate question for us is whether the legal services
Wheatley, Sr. provided to or through his son’s firm consti-
tuted the practice of law in California such as to bar recovery
of statutory attorney’s fees. The answer must be informed by
the substantive law, including the rules of court, of California.
Having held that the rules of court in California are irrelevant
and Birbower is inapposite, the majority necessarily gets both
the question, and the answer, off track.
Admission requirements are important. Perhaps they appear
“draconian,” as the majority puts it, when applied to preclude
fees for an experienced attorney of Wheatley, Sr.’s stature.
But there is reason for admission requirements that extends
beyond any individual attorney.11 There is no distinguished
lawyer, or draconian result, exception. Admissions require-
ments serve “the legitimate interest of ensuring that all attor-
neys practicing before the courts ‘clear the standard required’
by the respective state bar associations.” Gallo v. U.S. Dist.
Ct., 349 F.3d 1169, 1181 (9th Cir. 2003). Standards differ
from state to state, hence the Central District’s decision to
rely primarily on membership in the California Bar is signifi-
cant.12 For members of other state bars, the federal court
believes that it should determine whether an out-of-state attor-
ney may participate in pending litigation through application
of its pro hac vice rules. This is just as reasonable as it is for
the California courts to impose pro hac vice requirements.13
11
See Russell v. Hug, 275 F.3d 812, 820 (9th Cir. 2002) (noting that Cal-
ifornia Bar membership requirements “help to ensure a minimum level of
acceptable competence for lawyers on the whole”).
12
See Russell, 275 F.3d at 819 (holding that district courts may rely on
the infrastructure provided by state bar associations in meeting their own
needs for monitoring attorney admission and practice in the federal
courts); Giannini v. Real, 911 F.2d 354, 360 (9th Cir. 1990) (outlining rea-
sons for requiring bar applicants to a federal district court in California to
be a member in good standing of the California Bar).
13
See Pacuilan v. George, 229 F.3d 1226, 1228-29 (9th Cir. 2000)
(rejecting a challenge to California’s pro hac vice rules, and remarking
that without them, “[a] California resident wishing to practice law in Cali-
fornia but wanting to avoid the difficult California bar exam could become
a member of the bar with the least restrictive admissions requirements,
then demand admission to the California bar as a matter of right.”).
WINTERROWD v. AMERICAN GENERAL 1893
Creating a way for Wheatley, Sr. to receive fees without being
admitted to either forum undermines this well-considered
structure.
Wheatley, Sr. took himself out of the loop by failing to
apply for admission pro hac vice.14 Having never applied, he
is hard pressed to complain about how Rule 83-2.3.1 is writ-
ten or construed. For this reason, and because entitlement to
statutory fees turns on the substantive law of California, this
is no occasion for us to rewrite the pro hac vice rules of the
Central District. Even were the majority correct about how the
Central District rule ought to read, who is eligible to get fees
under the California Labor Code is an issue of state law.
One thing more. The majority’s preface talks of the need to
accommodate realities of modern law practice, and takes upon
this court the responsibility of doing so to avoid being judicial
Luddites. Maj. op. at 1867-68. I don’t see it this way. This
case presents no issue involving modern technology — there
is no question here about the age of personal computers, the
Internet, Blackberries, teleconferencing, emails, not even two-
way wrist radios. Nor of multinational firms, or massive dis-
covery projects with papers and data located in several states.
Thus the opinion cannot, and does not, speak to any of these
“realities.” Because nothing else is before us, its views about
the Central District’s pro hac vice rules are necessarily lim-
ited to the recovery of attorney’s fees when the unadmitted
attorney is acting, by himself, to help his son.
14
This distinguishes Wheatley, Sr.’s situation from Spanos, where the
client who sought to defend the attorney’s action for fees on the ground
of illegality was himself at fault because the client’s agent, his in-state
attorney, failed to obtain leave for the lawyer to appear pro hac vice in
federal court. 364 F.2d at 169. In those circumstances the Second Circuit
believed the client should not be allowed to escape from a contract to pay
fees. Id.; Leis v. Flynt, 439 U.S. 438, 442 n.4 (1979) (noting that “the pre-
cise holding [in Spanos] was quite narrow.”). By contrast here, fees are
not sought from the client but from the opponent under a fee-shifting stat-
ute, and the lawyer who seeks the fees is the one who failed to apply for
pro hac vice admission.
1894 WINTERROWD v. AMERICAN GENERAL
Even if this case were about accommodating realities of the
practice of law, which it isn’t, that is a task for state legisla-
tures, not federal appellate courts. As the Supreme Court has
emphasized, “[s]ince the founding of the Republic, the licens-
ing and regulation of lawyers has been left exclusively to the
States and the District of Columbia within their respective
jurisdictions.” Leis, 439 U.S. at 442. Our court, with good rea-
son, has refrained from crafting exceptions to bar admission,
because they are matters for the state legislature. Z.A., 165
F.3d at 1276.
In sum, as I see it, this case involves a statutory fee request
governed by the substantive law of the State of California.
The question is whether an Oregon lawyer who is not admit-
ted to practice either by the California State Bar or the Central
District of California may recover attorney’s fees for legal
services rendered in aid of a California litigant on California
law in an action pending in the Central District. The answer
turns on whether his services constitute the practice of law in
California under the law of California. I think they do, as it
seems to me that extensive advice over a prolonged period of
time with respect to California law for a Californian involved
in litigation in a California forum meets the Birbrower test.
This means that Wheatley, Sr. is barred from recovering statu-
tory fees. But even if I am wrong about this, I would not be
on board the opinion because the majority does not consider
the answer to this question “controlling.”
Accordingly, I dissent on this issue; otherwise, I concur.