Law School Case Brief
Birbrower, Montalbano, Condon & Frank v. Superior Court - 17 Cal. 4th 119, 70 Cal. Rptr. 2d 304, 949 P.2d 1 (1998)
The general rule is that an attorney is barred from recovering compensation for services rendered in another state where the attorney has not been admitted to the bar.
Birbrower, a professional law corporation incorporated in New York, executed a written fee agreement with ESQ Business Services, Inc. (ESQ) in California. While representing ESQ, lawyers employed by Birbrower traveled to and gave legal advice in California. None of Birbrower’s attorneys were licensed to practice law in California. Thereafter, ESQ filed suit against Birbrower alleging malpractice. The trial court granted ESQ’S motion for summary adjudication of the counterclaim, finding that the parties' fee agreement, which stipulated that California law governed all matters in the representation, was unenforceable, since the firm and its attorneys were not licensed to practice law in California as required by Bus. & Prof. Code, § 6125. The state Court of Appeals denied Birbrower's petition for a writ of mandate, concluding that Birbrower had violated § 6125 and that therefore, as a New York firm, Birbrower was barred from recovering its fees under the agreement for work performed in either California or New York.
Was Birbrower, a professional law firm incorporated in New York, barred from recovering its fees under the agreement for work performed in either California or New York?
Yes, but only for work performed in California.
The Supreme Court of California first noted that Birbrower’s representation in California violated Bus. & Prof. Code, § 6125, and as such, Birbrower was not entitled to recover fees under the fee agreement for its services in California. However, according to the Court, the firm was allowed to severe the illegal portion of the consideration from the rest of the fee agreement. The Court averred that the agreement might be valid to the extent it authorized payment for limited services the firm performed in New York. The Court remanded the case to the district court in order to allow Birbrower to present evidence justifying its recovery of fees for the services it rendered in New York.
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