Metropolitan News-Enterprise


Wednesday, February 18, 2009


Page 1


Ninth Circuit Allows Attorney Fees for Oregon Lawyer Not Admitted to District Court


By STEVEN M. ELLIS, Staff Writer


A Ninth U.S. Circuit Court of Appeals panel ruled 2-1 yesterday that a nonmember of the State Bar can recover attorney fees for helping his California-lawyer son litigate a California claim before the U.S. District Court for the Central District, despite never seeking admission to the district court.

Noting that Del Mar attorney William G. Wheatley Jr. supervised the work of his father, Oregon attorney William G. Wheatley Sr., who never appeared in court, signed pleadings, or had more than minimal contact with clients and opposing counsel, Judge Milan D. Smith Jr. wrote that neither the State Bar Act nor the district court’s rules precluded an award of fees.

Judge Pamela Ann Rymer, however, dissented from the majority’s conclusion that Wheatley could recover as a “consultant,” commenting that “[a]dmission requirements are important,” and that “[t]here is no distinguished lawyer, or draconian result, exception.”

Father and Son

William G. Wheatley Jr. retained his father, a former Oregon State Bar president with 45 years of civil trial and appellate experience, to assist him and his brother, Robert Wheatley, in litigating a 2000 state law claim by three employees of American General Annuity Insurance Co. for breach of a severance contract.

The insurer claimed the action was preempted by the federal Employment Retirement Security Act of 1974 and the district court initially agreed, but the Ninth Circuit reversed, and the insurer ultimately agreed to pay over $288,000 under a settlement agreement that left determination of attorney fees to U.S. District Judge Christina A. Snyder.

The plaintiffs moved for an award of fees under Sec. 218.5 of the California Labor Code, but Snyder determined that William Wheatley Sr.—who was admitted before the Ninth Circuit, but never sought admission before the district court—could only recover for work performed before the former.

She reasoned that Wheatley’s work on behalf of California clients before the district court, despite never physically entering California, violated the State Bar Act, as well as local court rules requiring admission to the California State Bar or permission to practice pro hac vice.

But Smith wrote on appeal that the state act did not apply to federal practice and that the California Supreme Court’s 1998 decision in Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Ct. of Santa Clara County 17 Cal.4th 119 that New York attorneys had practiced law when they provided services in California in a pending dispute was distinguishable given the presence of a California attorney supervising Wheatley.

Looking instead to local rules and federal caselaw, Smith pointed out that no evidence suggested Wheatley would not have been admitted temporarily had he applied, and the judge concluded that the plaintiffs could still recover fees for the Oregon attorney’s work because Wheatley’s conduct did not rise to “appearing” before the district court, and was more akin to that of “litigation support or consultants.”

Remanding to the district court to determine the amount due for Wheatley’s work, Smith explained:

 “Current law does not compel us to be judicial Luddites, 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.”

Senior U.S. District Judge Edward R. Korman of the Eastern District of New York, sitting by designation, joined Smith in his opinion.

Dissenting Opinion

However, Rymer wrote that Wheatley’s “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,” adding that, even if she was wrong, she would “not be on board the opinion because the majority does not consider the answer to this question ‘controlling.’”

Counsel for American General, Los Angeles attorney Rex S. Heinke of Akin Gump Strauss Hauer & Feld LLP, had not yet reviewed the opinion when contacted by the MetNews, but William Wheatley Jr. indicated he was happy with the victory, even though he said the case should have concluded at summary judgment almost nine years ago.

Noting the Ninth Circuit’s reversals of the district court, he remarked, “this case has kind of got nine lives,” adding, “I’m hoping the ninth life has expired.”

The case is Winterrowd v. American General Annuity Insurance Co., 07-56541.


Copyright 2009, Metropolitan News Company