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October 25, 2018 practice point

California’s Birbrower Decision Is Laid to Rest

By Dixon Q. Dern

The case was the subject of extensive criticism and the legislature amended the impact of the decision by passage of an amendment to the California Code of Civil Procedure (CCP) providing that an attorney admitted to the bar of any other state may represent the parties in the course of, or in connection with, an arbitration proceeding in California, provided that the attorney, if not admitted to the State Bar of California, satisfies all of the following: (i) he or she timely pays a fee and serves a certificate on the arbitrator(s), the other parties and the State Bar stating that he or she is a member in good standing of an out of state Bar, is not a resident of California, and details regarding the case; (ii) The attorney’s appearance is approved in writing on that certificate by the arbitrator(s) or the arbitral forum; (iii) the certificate bearing approval of the attorney’s appearance is filed with the State Bar of California and served on the parties.

Unfortunately, although the international commercial disputes provisions of the California Arbitration Act (see Section 1297.351 of the CCP) allow foreign attorneys to appear for parties in conciliations, the courts, its administrative body (the Judicial Council) had taken the position that “admitted to the bar of another state” barred from appearance any attorneys of a foreign national unless formal pro hac vice procedures are allowed and followed and California counsel is associated. Some arbitrators and attorneys have taken the position that this reasoning applies—or should apply—to international arbitrations as well as conciliations, but in doing so there is a certain risk. For a number of years, there have been attempts to get the California legislature to act on this problem.

Now the problem has been solved, at least as to international commercial disputes. In July 2018, the governor signed Senate Bill 766 which will be incorporated into the California CCP as Section 1297.186(a). The Legislative Counsel’s Digest of the Bill provides as follows: “This bill would permit an individual who is not admitted to practice law in California but who is a member in good standing of a recognized legal profession in the United States or a foreign jurisdiction and is subject to effective regulation and discipline by a duly constituted professional body or public authority to provide legal services in an international commercial arbitration or related proceeding, as specified.”

Attorneys of other states must still follow the procedure outline above—which has worked—for other matters, but this bill will now solve the problem facing many involved in international commercial disputes in California. Thus, the finale of Birbrower—better late than never!

Dixon Q. Dern is an attorney, mediator, and arbitrator in Los Angeles, California.

This article in a longer form first appeared on on August 24, 2018.

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