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 D.C. No.

INSURANCE CO., a Texas 

CV-00-00677-CASCorporation; PATRICK GRADY; RC

DOES, 1-10 inclusive; THE

WESTERN NATIONAL CORPORATION

JOB SECURITY PLAN,

Defendants-Appellees. 

NEIL WINTERROWD; KEVIN YURKUS; 

GREGORY STOPP,

Plaintiffs-Appellees,

No. 07-56711 v.

D.C. No. AMERICAN GENERAL ANNUITY  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
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. 

1860 WINTERROWD v. AMERICAN GENERAL
COUNSEL

William G. Wheatley, Jr., Law Offices of William G. Wheatley, 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 Central 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

WINTERROWD v. AMERICAN GENERAL 1863
Neil Winterrowd, Kevin Yurkus, and Gregory Stopp (Winterrowd plaintiffs) filed their initial and amended complaints in

early 2000, asserting claims for breach of a severance contract. American General Annuity Insurance Co., et al.

(AGAIC) asserted in its answer that the Winterrowd plaintiffs’ 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 Winterrowd 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. 

1864 WINTERROWD v. AMERICAN GENERAL
The Winterrowd plaintiffs also agreed “to prepare a dismissal

with prejudice of the entire action and provide it to Defendants’ 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 plaintiffs’ 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 Winterrowd plaintiffs’ motion for an entry of judgment, “dismissing

WINTERROWD v. AMERICAN GENERAL 1865
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) stating 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 plaintiffs’ 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 pursuant to 28 U.S.C. § 1292(b). In response to the dismissal by

our court, the district court dismissed the Winterrowd plaintiffs’ 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. 

1866 WINTERROWD v. AMERICAN GENERAL
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 Blackberries, 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 hundreds, 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 sessions with other lawyers in other states, and lawyers and paralegals 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 LuddWINTERROWD v. AMERICAN GENERAL 1867
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, determined that the Winterrowd plaintiffs were entitled to reasonable attorneys fee’s under Cal. Lab Code § 218.5 as a matter

of law. However, based on its reading of Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Ct. of Santa Clara

County, 17 Cal. 4th 119 (1998), the court held that the Winterrowd plaintiffs could not recover fees for the work of attorney 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 permitted 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

1Defendants 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 California 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. 

1868 WINTERROWD v. AMERICAN GENERAL
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. Birbrower attorneys made repeated trips to California where they

discussed matters relating to the legal dispute, provided legal

advice, and made strategy recommendations. Birbrower attorneys 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 foregoing 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 practice 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

2Defendant’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.

WINTERROWD v. AMERICAN GENERAL 1869
representation. In addition to a quantitative analysis,

we must consider the nature of the unlicensed lawyer’s activities in the state. Mere fortuitous or attenuated 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 exclusive.” 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 connection with a California legal dispute by telephone,

fax, computer, or other modern technological means.

Conversely, although we decline to provide a comprehensive 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 anywhere, 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 entitled 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

1870 WINTERROWD v. AMERICAN GENERAL
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 services 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 preemption. 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 prosecuting 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 concluded that an out-of-state law firm was not entitled to a judgment 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 California.” Id. at 48-49 (emphasis in original). While we discuss

the considerations of policy that would have justified a different outcome in Birbrower, if one of the members of the firm

WINTERROWD v. AMERICAN GENERAL 1871
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 federal 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 Wheatley, 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

3The 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 constitute the practice of law, as that term is construed under the applicable federal rule, then he is entitled to recover his fees. Id. We discuss this issue

infra, page 1874-75. 

1872 WINTERROWD v. AMERICAN GENERAL
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 payment in the district court. On reconsideration en banc, the

Second Circuit held that while Spanos had not sought admission to practice pro hac vice in the Southern District, “it ‘cannot be seriously doubted that at any time on motion, the

admission of Spanos pro hac vice would have been authorized’ ” by the district court. Id. at 168 (noting that Spanos

was well trained and a member in good standing of the California Bar). California state courts have held similarly. See

Cowen v. Calabrese, 230 Cal. App. 2d 870, 872 (1964) (indicating 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 College of Trial Lawyers, and has been listed in The Best Lawyers 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 attorney “(a) Resides in California; or (b) Is regularly employed in

California; or (c) Is regularly engaged in business, professional, or other similar activities in California.” C.D. Cal. L.

WINTERROWD v. AMERICAN GENERAL 1873
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 support 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 identified himself as counsel in the court’s appearance form, physically 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

4We do note, however, that if the record indicated a reason why Wheatley, 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. 

1874 WINTERROWD v. AMERICAN GENERAL
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 practice of law in Colorado? The cases and ethics opinions 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, paralegals 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 unauthorized 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 filtered 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 responsibility, 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

WINTERROWD v. AMERICAN GENERAL 1875
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, obviously not limited to Colorado. Id. The opinion addressed the

issue of the practice of law by partnerships when not all lawyers 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 ethical 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 partnership, 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 independent 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

1876 WINTERROWD v. AMERICAN GENERAL
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 practice 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 Central District, did not sign pleadings in the case before the Central 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

5There 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 advertisement 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 multijurisdictional practice. 

WINTERROWD v. AMERICAN GENERAL 1877
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 sanctions was procedurally defective. A Rule 11 motion for sanctions must be served on opposing counsel twenty-one days

before filing the motion with the court, providing the opposing 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

1878 WINTERROWD v. AMERICAN GENERAL
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 correct 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 Separation, 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 attorneys 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 “customary 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 disturbed unless the appellate court is convinced that it is clearly

wrong’ — meaning that it abused its discretion.” PLCM Grp.

WINTERROWD v. AMERICAN GENERAL 1879
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 produced 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 district court’s $300 per hour rate is in line with the range suggested 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 Wheatley, Jr. and Robert Wheatley that were “vague or insufficiently 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 standards under Texas law for setting fee award). Under California law, “[t]o enable the trial court to determine whether

attorney fees should be awarded and in what amount, an attorney should present ‘(1) evidence, documentary and oral, of

1880 WINTERROWD v. AMERICAN GENERAL
the services actually performed; and (2) expert opinion, by

[the applicant] and other lawyers, as to what would be a reasonable 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 contemporaneous 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 requirements under California law of showing “evidence, documentary 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 plaintiff 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. 

WINTERROWD v. AMERICAN GENERAL 1881
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 onehundred percent of the recovery they sought, despite defendant’s opposition at every stage.” Moreover, this was the precise 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 district 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. Vortex Fishing Systems, Inc., 379 F.3d 701, 709 (9th Cir. 2004).

Further, it is clear to us that AGAIC’s arguments on its crossappeal do not merit sanctions. “An appeal is considered frivolous 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. 

1882 WINTERROWD v. AMERICAN GENERAL
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 district court for determination of the amount due to the Winterrowd 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 Wheatley, Sr., who provided substantial legal advice in aid of Winterrowd’s action in California yet is not admitted to practice

in the State of California or in the Central District of California, 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

1California Labor Code § 218.5 provides that “[i]n any action for nonpayment 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.” 

WINTERROWD v. AMERICAN GENERAL 1883
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 nonadmitted, 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 regulate 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 California, or those who are permitted to appear pro hac vice, may

appear and participate in a particular case in the Central District of California.4

 An attorney such as Wheatley, Sr., who is

2The 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. 

3Birbrower, 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 outof-state attorney who is not admitted by either the state or the federal district court is entitled to fees under a California fee-shifting statute. 

4The Central District’s Local Rule 83-2.3 governs pro hac vice appearance. Section 83-2.3.1 provides: 

Permission to Appear Pro Hac Vice. Any person who is not otherwise eligible for admission to practice before this Court, but

1884 WINTERROWD v. AMERICAN GENERAL
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 regularly 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 authorized by the Constitution of the United States or Acts of Congress, 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 similar activities in California. 

WINTERROWD v. AMERICAN GENERAL 1885
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 California 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

5Section 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.” 

1886 WINTERROWD v. AMERICAN GENERAL
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 services rendered in another state not involving courtroom

appearance). 

Wheatley, Sr.’s activity in this California case was substantial. 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 proceeding. 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 support for construing this exception so broadly. As I read Birbrower, 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 conWINTERROWD v. AMERICAN GENERAL 1887
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, Wheatley, 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 authorization 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 Winterrowd’s action in the District Court for the Central District of

California for which attorney’s fees are recoverable under

California law. 

6To the contrary, Wheatley, Sr.’s declaration in support of Winterrowd’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.” 

1888 WINTERROWD v. AMERICAN GENERAL
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 suggests 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. Winter (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 managers, legal support, summer associates, or law school graduates 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 associate (yet) commands $550 per hour. Rather, Wheatley, Sr.

rendered the sort of services one would expect of a practicing

7California 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 implausibility of putting Wheatley, Sr. in the ranks of a paralegal, there is no evidence 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 Wheatley, Sr. were not compensated under the fees statute. 

8Wheatley, 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. 

WINTERROWD v. AMERICAN GENERAL 1889
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 distinguishable 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 preclude him from recovering statutory fees. Under California

law, a non-admitted attorney can practice law without appearing 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 statutory fees. As the district court thought, this would circumvent the rules of practice as set out in Birbrower.

9

9The 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. 

1890 WINTERROWD v. AMERICAN GENERAL
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 contingency basis pursuant to a fee agreement with a law professor 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 rendered. 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 opinions 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 commentary 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

10I 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 Professional Conduct. See City and County of San Francisco v. Cobra Solutions,

135 P.2d 20, 28-30 (Cal. 2006) (rejecting ABA approach of limited “ethical screening” of government attorneys from matters related to former private 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. 

WINTERROWD v. AMERICAN GENERAL 1891
The ultimate question for us is whether the legal services

Wheatley, Sr. provided to or through his son’s firm constituted 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 requirements serve “the legitimate interest of ensuring that all attorneys 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 significant.12 For members of other state bars, the federal court

believes that it should determine whether an out-of-state attorney 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

11See Russell v. Hug, 275 F.3d 812, 820 (9th Cir. 2002) (noting that California Bar membership requirements “help to ensure a minimum level of

acceptable competence for lawyers on the whole”). 

12See 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 reasons for requiring bar applicants to a federal district court in California to

be a member in good standing of the California Bar). 

13See 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 California 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.”). 

1892 WINTERROWD v. AMERICAN GENERAL
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 written 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 twoway wrist radios. Nor of multinational firms, or massive discovery 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 limited to the recovery of attorney’s fees when the unadmitted

attorney is acting, by himself, to help his son. 

14This 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 precise holding [in Spanos] was quite narrow.”). By contrast here, fees are

not sought from the client but from the opponent under a fee-shifting statute, and the lawyer who seeks the fees is the one who failed to apply for

pro hac vice admission. 

WINTERROWD v. AMERICAN GENERAL 1893
Even if this case were about accommodating realities of the

practice of law, which it isn’t, that is a task for state legislatures, not federal appellate courts. As the Supreme Court has

emphasized, “[s]ince the founding of the Republic, the licensing 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 reason, 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 admitted 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 statutory 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.

1894 WINTERROWD v. AMERICAN GENERAL