The Oklahoma Bar Journal August 2023

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.” 30 To the California Supreme Court, physical presence is not determinative but only one fac tor to be considered. 31 The court observed that an attorney could still practice law in the state in violation of the unauthorized practice of law statute by “advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means.” 32 Though it “decline[d] to provide a com prehensive list of what activities constitute[d] sufficient contact with the state,” the court “reject[ed] the notion that a person automati cally practices law ‘in California’ whenever that person practices California law anywhere, or ‘virtu ally’ enters the state by telephone, fax, e-mail, or satellite” – a finding the court suggested struck a bal ance “between interjurisdictional practice and the need to have a state-regulated bar.” 33 Applying these principles, the court found that its “‘sufficient contact’ definition of ‘practice law in California’ … [did not] excuse [the firm’s] extensive practice in [the] state.” 34 It declined to “craft an arbitration exception” to its unauthorized practice of law statute, as advocated by the firm, finding that was best left to the Legislature. 35 It likewise refused to adopt an exception to the law to address multistate relation ships, for while recognizing the need in certain cases to accom modate the multistate nature of law practice, the facts showed the

The court observed that an attorney could still practice law in the state in violation of the unauthorized practice of law statute by ‘advising a California client on California law in connection with a California legal dispute by telephone, fax, computer, or other modern technological means.’ 32

the San Francisco office of the American Arbitration Association. 26 They later returned to California to meet with ESQ, as well as Tandem attorneys, to discuss settlement and render legal advice to ESQ regarding the terms of the pro posed settlement agreement. 27 The dispute eventually settled, but before it did, the firm modified its original fee arrangement from a contingency fee for one-third of all sums received by ESQ to a fixed fee, requiring ESQ to pay the firm over $1 million. 28 On appeal, the California Supreme Court opined, “The practice of law ‘in California’ entails sufficient contact with the California client to render the nature of the legal service a clear legal representation.” 29 “In addi tion to a quantitative analysis,” the court observed, it “must consider the nature of the unlicensed law yer’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

arbitration. 20 The case came to the court as a dispute over the firm’s fee agreement with its client, ESQ Business Services Inc. (ESQ), which was a California corporation with its principal place of business in Santa Clara County. 21 The firm was engaged to represent it in a dispute against Tandem Computers Inc., a Delaware corporation related to software development and mar keting. 22 The agreement between Tandem and ESQ provided that California law governed. 23 In representing ESQ, the Birbrower attorneys “traveled to California on several occasions” and met with ESQ and its accoun tants there to “discuss[ ] … strat egy for resolving the dispute” and make recommendations and give advice. 24 They also met with Tandem representatives “on four or five occasions” in California, demanding that Tandem pay ESQ millions of dollars. 25 In addi tion, firm attorneys traveled to California to interview potential arbitrators after they had filed a demand for arbitration with

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

AUGUST 2023 | 9

THE OKLAHOMA BAR JOURNAL