Ore. Lawyer Gets Payday in Calif. Federal Case; 9th Cir. Nixes Birbrower Ban
A prominent Oregon lawyer who helped his son litigate a federal insurance coverage case in California is entitled to attorney fees, a divided federal appeals court panel has ruled, even though he wasn’t temporarily admitted to practice there.
The well-known “Birbrower” ban on attorney fees being paid to an unadmitted lawyer didn’t apply, the 9th U.S. Circuit Court of Appeals found. At least in part, that’s because attorney William G. Wheatley Sr. was supervised while working on the case by his son, California attorney William G. Wheatley Jr., reports the Metropolitan News-Enterprise.
The 9th Circuit’s opinion yesterday (PDF) in Winterrowd v. American General Annuity Insurance Co., No. 07-56541, also notes that the senior Wheatley had no courtroom role, didn’t sign pleadings, and had minimal contact with the client and opposing counsel.
The underlying litigation concluded with a $288,000 settlement agreement providing that U.S. District Judge Christina Snyder would decide the attorney fee, and the 9th Circuit has now remanded the attorney fee issue to Snyder to determine the amount to be paid.
In the earlier landmark case, Birbrower, Montalbano, Condon & Frank, P.C. v. Superior Ct. of Santa Clara County, 17 Cal.4th 119, the California Supreme Court ruled in 1998 that New York lawyers weren’t entitled to payment because they had worked in a jurisdiction in which they weren’t admitted to practice.
The senior Wheatley is a former president of the Oregon State Bar, and has 45 years of civil trial and appellate experience.
Additional coverage:
California Appellate Report: “Winterrowd v. American General Annuity Ins. Co. (9th Cir. Feb. 17, 2009)”
California Bar Journal (2003): “Panel urges relaxing practice limits for out-of-state lawyers”
AltLaw: “Winterrowd v. American General Annuity Ins. Co., 321 F.3d 933 (9th Cir. 2003)”