Mind Those Pro Hacs

 Golba v. Dick's Sporting Goods, Inc., No G049611 (D4d3 Jul. 24, 2015)

This case is a consumer class action against a retailer for collecting zip codes. It eventually settled for a crappy coupon settlement. The laboring oar of the plaintiff work had been performed by an out-of-state attorney from Chicago. The local counsel who signed the complaint filed a pro hac vice motion—including a declaration that the Chicago attorney hadn’t been admitted pro hac in California in the last two years. But he failed to pay the required fee and inform the state bar, so the motion was denied. Unfortunately, nobody checked on the status of the motion, and plaintiffs proceeded as if the application were granted.

The case settled. While papering the settlement, the local realized that the pro hac motion had been denied. So he filed a second pro hac application, asking for nunc pro tunc treatment. But in the ensuing year the Chicago lawyer had made twelve pro hac applications in California class actions. The trial court denied it under Rule of Court 9.40(b) for too much pro hac-ery.

When it came to address fees for the settlement, most of the lodestar—all but $11k of $157k total—fell on the out-of-state attorneys for whom pro hac status had been denied or never sought. The trial court—relying on the seminal Birbrower, Montalbano, Condon & Frank v. Superior Court, 17 Cal. 4th 119 (1998)—held that the out of state attorneys who never got admitted pro hac could not recover their fees from the settlement.

As interpreted by Birbrower, the State Bar Act, Bus. & Prof. Code § 6125, prohibits an unadmitted out-of-state attorney from recovering his fees for work that is performed “in California.” Significant advice to a California client on California law usually counts. In particular, litigation-related advice about California ligation is seen as the practice of law here, even if the lawyer never comes to court. (Although the Chicago lawyer here did.) So it’s not very surprising that the not-pro-hac’d plaintiff lawyers are viewed as practicing in California without permission. After all, we have plenty of plaintiff lawyers of our own to keep in business.

That’s basically what the court of appeal holds. It further says that there was no error in refusing to consider the request nunc pro tunc because the original denial was based on a procedural and substantive mistake, not a clerical one. Since the first application was denied on the merits, nunc pro tunc treatment was inappropriate.

The court also rejects the argument that the fact that Plaintiff had a California-admitted local didn’t save the day. Plaintiff tried to argue that, so long as Plaintiff’s “lead lawyer” was locally admitted, work by out of state lawyers was still compensable. Problem is that the billing records made clear that the “lead lawyer” was the Chicago guy. In reaching this result, the court distinguishes, calls dicta on, and disagrees a little with Winterrowd v. American General Annuity Insurance Co., 556 F.3d 815 (9th Cir. 2009), a Ninth Circuit case that suggests that, so long as the lead lawyer from a firm is pro hac’d, work by out-of-state lawyers from the same firm can be compensable, notwithstanding § 6125 and Birbrower.

Affirmed.

Takeaway: If you anticipate recovering fees for a case in California state court, the safe way to go is to pro hac in everyone from the Chicago office who will appear on the bill.