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Birbrower, Montalbano, Condon & Frank, P.C. v. The Superior Court of Santa Clara County

Supreme Court of California
949 P.2d 1 (1998)


Birbrower, Montalbano, Condon & Frank, P.C. (Birbrower) (defendant) was a New York law firm hired by ESQ Business Services, Inc. (ESQ) (plaintiff), a California corporation with its principal place of business in California, to represent ESQ in legal matters against another company. Birbrower and ESQ entered into a fee agreement in New York under which Birbrower agreed to handle all matters related to ESQ’s claims against the other company. None of Birbrower’s attorneys were licensed to practice in California, and the parties later disputed whether ESQ was aware of this fact. Birbrower attorneys Kevin Hobbs and Thomas Condon (defendants) traveled to California on multiple occasions to meet with ESQ, discuss resolution strategies, and provide legal advice. Hobbs and Condon also traveled to California with another Birbrower attorney to demand arbitration on behalf of ESQ and advise ESQ during settlement negotiations. ESQ settled its claims without arbitration. California Business and Professions Code § 6125 prohibited any person from practicing law in California unless the person was licensed to practice. ESQ sued Birbrower in California state court for legal malpractice. Birbrower removed the case to federal district court and filed a counterclaim for attorneys’ fees. The case was remanded to state trial court, and ESQ moved for partial summary judgment on the ground that Birbrower had engaged in the unauthorized practice of law under § 6125, rendering the fee agreement between the parties unenforceable. The trial court granted ESQ’s motion for partial summary judgment, and the court of appeal affirmed. Birbrower appealed to the state supreme court.

Rule of Law


Holding and Reasoning (Chin, J.)

Dissent (Kennard, J.)

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