Cal. Prac. Guide Prof. Resp. Ch.

1-D
California Practice Guide: Professional Responsibility
Paul W. Vapnek, Mark L. Tuft, Ellen R. Peck and Justice Howard B. Wiener (Ret.)
Chapter 1. Law As A Profession
D. Unauthorized Practice Of Law

3. [1:175] Practice of Law in California Defined: The statute prohibiting the unauthorized practice of law in
California (Bus. & Prof.C. 6125) does not define the practice of law or in California. Instead, these definitions
have evolved through case law:
a. [1:175.1] Practice of law: The practice of law is generally understood to mean doing and performing
services in a court of justice in any matter depending therein throughout its various stages and in conformity with the
adopted rules of procedure. This includes giving legal advice and preparing legal instruments and contracts whether
or not in the course of litigation. [Birbrower, Montalbano, Condon & Frank, P.C. v. Sup.Ct. (ESQ Business Services,
Inc.) (1998) 17 C4th 119, 128, 70 CR2d 304, 308 (internal quotes omitted); Benninghoff v. Sup.Ct. (State Bar) (2006)
136 CA4th 61, 68, 38 CR3d 759, 763; see discussion at 1:181 ff.]
Given the complexity and variability of the subject, however, any definition of legal practice is ... incapable of
universal application and can provide only a general guide to whether a particular act or activity is the practice of
law. [People v. Landlords Professional Services (1989) 215 CA3d 1599, 1609, 264 CR 548, 554; see also
Benninghoff v. Sup.Ct. (State Bar), supra, 136 CA4th at 68, 38 CR3d at 763ascertaining whether particular activity
is practice of law may be formidable endeavor]
(1) [1:176] Inside or outside court: It is not necessary that the matter with respect to which the advice was given
be pending before a state court. [People ex rel. Lawyers Institute of San Diego v. Merchants Protective Corp.
(1922) 189 C 531, 535, 209 P 363, 365]
(2) [1:177] Incidental to or independent of other calling: The practice of law need not be an independent
vocation; it may be incidental to another occupation or calling of a nonlegal nature. [See Agran v. Shapiro (1954)
127 CA2d Supp. 807, 813, 273 P2d 619, 623tax accountant giving legal advice incidental to preparation of tax
return]
[1:178] Reserved.
(3) [1:179] Doubtful or difficult issues: In close cases ... the resolution of legal questions for another by advice
and action is practicing law if difficult or doubtful legal questions are involved which, to safeguard the public,
reasonably demand the application of a trained legal mind. [Baron v. City of Los Angeles (1970) 2 C3d 535, 543,
86 CR 673, 678 (emphasis added; internal quotes omitted); see also Agran v. Shapiro, supra, 127 CA2d Supp. at
818, 273 P2d at 626]
What is a difficult or doubtful question of law is not to be measured by the comprehension of a trained legal mind,
but by the understanding thereof which is possessed by a reasonably intelligent layman who is reasonably familiar
with similar transactions. [Agran v. Shapiro, supra, 127 CA2d Supp. at 818, 273 P2d at 626]
[1:179.1179.4] Reserved.
(4) [1:179.5] Operating software or computer programs? It is unsettled whether computer software alone, or

other types of computer programs, might constitute the practice of law. [In re Reynoso (9th Cir. 2007) 477 F3d
1117, 1126, fn. 9; see also 1:234.2b]
b. [1:180] Practicing law in California: Determining whether an attorney has practiced law in California in
violation of Bus. & Prof.C. 6125 turns on whether the ... lawyer engaged in sufficient activities in the state, or
created a continuing relationship with the California client that included legal duties and obligations. [Birbrower,
Montalbano, Condon & Frank, P.C. v. Sup.Ct. (ESQ Business Services, Inc.) (1998) 17 C4th 119, 128129, 70 CR2d
304, 309; Estate of Condon (1998) 65 CA4th 1138, 1145, 76 CR2d 922, 926]
(1) [1:180.1] Physical presence in California not required: A lawyer can practice law in California without
being physically present in the state: (O)ne may practice law in the state in violation of section 6125 although not
physically present here by advising a California client on California law in connection with a California legal
dispute by telephone, fax, computer, or other modern technological means. [Birbrower, Montalbano, Condon &
Frank, P.C. v. Sup.Ct. (ESQ Business Services, Inc.), supra, 17 C4th at 128129, 70 CR2d at 309; Estate of
Condon, supra, 65 CA4th at 1145, 76 CR2d at 926927; Simons v. Steverson (2001) 88 CA4th 693, 713, 106 CR2d
193, 208]
(a) [1:180.2] Not automatic: However, infrequent or occasional contact with California does not automatically
mean a lawyer practices law here: (W)e do reject the notion that a person automatically practices law in
California whenever that person practices California law anywhere, or virtually enters the state by telephone,
fax, e-mail, or satellite ... [Birbrower, Montalbano, Condon & Frank, P.C. v. Sup.Ct. (ESQ Business Services,
Inc.), supra, 17 C4th at 128129, 70 CR2d at 309; Estate of Condon, supra, 65 CA4th at 1145, 76 CR2d at 927]
1) [1:180.3] Comment: The Court in Birbrower refused to create an innocuous or incidental contact
exception to Bus. & Prof.C. 6125. Instead, Birbrower requires a quantitative analysis of the services
rendered and the nature of activities performed in California. This approach seems analogous to the minimum
contacts test for personal jurisdiction.
[1:180.4] Reserved.
(b) [1:180.5] Application: New York Law Firm violated Bus. & Prof.C. 6125 when it performed legal services
(including handling of contract negotiations governed by California law, filing arbitration demand and
interviewing potential arbitrators in California) for a California-based client. [Birbrower, Montalbano, Condon &
Frank, P.C. v. Sup.Ct. (ESQ Business Services, Inc.), supra, 17 C4th at 124, 70 CR2d at 306; but see 1:117 ff.
re post-Birbrower legislation permitting out-of-state attorneys to participate in Calif. arbitrations under specified
conditions]
[1:180.6180.9] Reserved.
(2) [1:180.10] Comparelegal services for nonresident client: One post-Birbrower case concluded that a lawyer
who rendered limited legal services in California for a single nonCalifornia client did not practice law in California:
The purpose of Bus. & Prof.C. 6125 is to protect California residents from incompetent or unscrupulous lawyers,
and hence an out-of-state lawyer does not violate the 6125 prohibition on practicing law in California unless the
attorney renders services to a California clienti.e., a client who either resides in California or has its principal
place of business in California. [T]he state of California has no interest in disciplining an out-of-state attorney
practicing law on behalf of a client residing in the lawyers home state. [Estate of Condon, supra, 65 CA4th at
11451146, 76 CR2d at 927]
(But even this case acknowledges out-of-state lawyers are not at liberty to represent nonresident clients in
California courts. See Estate of Condon, supra, 65 CA4th at 1146, 76 CR2d at 927, fn. 7.)
(a) [1:180.11] Application: Colorado Law Firm hired by a Colorado Client who was coexecutor of a California
decedents estate did not practice law in California in violation of Bus. & Prof.C. 6125 when Law Firm
members entered California physically or virtually to perform legal services on behalf of the estate
(negotiation, settlement and drafting of documents resolving a dispute among heirs of the estate leading to sale of
the estates principal asset, the family business). [Estate of Condon, supra, 65 CA4th at 11461147, 76 CR2d at
927928]
(b) [1:180.12] Comment: Condon, supra, involved limited legal services performed in California that were

incidental to a probate court matter for a single nonCalifornia client whose California counsel performed all court
filings. It is unresolved whether an out-of-state lawyer engages in the unauthorized practice of law when, e.g.,
rendering substantial or continuous legal services in California for a nonCalifornia client or rendering ongoing
legal services for multiple nonCalifornia clients.
[1:180.13180.14] Reserved.
(3) [1:180.15] Compareout-of-state attorney assisting California lawyer litigating case in federal court: An
out-of-state attorney not licensed by the California Bar, who assists a California attorney litigating a federal district
court case in California, does not engage in the unauthorized practice of law ... provided the California lawyer
alone is responsible as counsel of record and the out-of-state attorney (a) does not physically appear before the
federal court; (b) does not sign pleadings; and (c) has minimal nonexclusive contacts with the client. [See
Winterrowd v. American Gen. Annuity Ins. Co. (9th Cir. 2009) 556 F3d 815, 825]
4. [1:181] Activities Constituting Practice of Law: The following are examples of activities held to constitute the
practice of law: