Birbrower Was Right: Foreign Attorneys Are Entitled to Appear in International Commercial Arbitrations Held in California - Dispute Resolution Journal - Vol. 70, No. 1

Author(s):

Matthew P. Vafidis

Peter R. Jarvis

Allison Martin Rhodes

Nellie Q. Barnard

Page Count:

8 pages

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1 PDF Download

Published:

March, 2015

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I. INTRODUCTION

Birbrower, Montalbano, Condon & Frank, PC v. Superior Court,

17 Cal. 4th 119 (1998) (“Birbrower”) is undoubtedly the most

significant case in California history on the subject of what non-

California lawyers may or may not do “in California” without engaging

in the unauthorized practice of law. Cal. Bus. & Prof. Code § 6125

provides that “No person shall practice law in California unless the

person is an active member of the State Bar” (the “General UPL Law”).

The question before the court involved whether, under then-existing

law, representation of California clients in domestic (i.e., United States)

arbitrations held in California violated Cal. Bus. & Prof. Code § 6125.

The court answered that question in the affirmative.

Here, we focus on a related issue considered briefly by the

Birbrower court. After setting out its central analysis and holding, the

court acknowledged a number of exceptions to its general rule that

domestic arbitrations held in California must involve Californialicensed

lawyers. For example, the court noted that an out-of-state

attorney not licensed in California could appear in a pending action

by the consent of the trial judge or under state rules allowing pro hac

vice appearances. Birbrower, 17 Cal. 4th at 130.

Another exception, and the one central to this discussion, involved

international disputes resolved in California under California rules for

arbitration and conciliation. The court explained that the legislature has

recognized an exception to the General UPL Law for “arbitration and

conciliation of international commercial disputes” under Cal. Civ. Proc.
§§ 1297.11-1297.432. The court went on to explain the exception: