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Author Topic: Can an out of state Attorney represent me in California?  (Read 6694 times)

David Bavineau

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Can an out of state Attorney represent me in California? Or do I have to find an Attorney in California?
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klaviernista

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Re: Can an out of state Attorney represent me in California?
« Reply #1 on: 01-13-10 at 06:59 am »

What type of representation are you looking for?  If you want an attorney to represent you before the U.S. patent office (I inferred this from the fact that this thread is on an IP board), the answer is most likely yes, and is definitely yes if the representation desired relates to patent prosecution and the out of state attorney is registered to practice before the USPTO. 

If you are looking for representation in the state or federal courts located within California, most states allow for so called "pro hac vice" (for this occassion) representation, provided certain requirements are met.  In effect, pro hac vice admission allows an attorney who is licensed in state B but not state A, to represent a client for a particular occassion in state A.  The requirements for pro hac vice admission may differ by state, by jurisdiction within a state, and between state and federal courts.  Often, state pro hac vice rules require the out of state attorney to associate with an attorney licensed to practice in the state in which pro hac vice admission is sought..

I did a little digging on the CA courts website, and it appears that California does allow for pro hac vice representation.  See rule 9.40 of the California Rules of Court, available at: http://www.courtinfo.ca.gov/rules/index.cfm?title=nine&linkid=rule9_40

Good luck.
« Last Edit: 01-13-10 at 07:02 am by klaviernista »
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DogDayPM_Still_Kickin'

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Re: Can an out of state Attorney represent me in California?
« Reply #2 on: 01-13-10 at 07:35 am »

What type of representation are you looking for? 

Hiya Klav, you must have missed some of his other posts.  Seems that literally hundreds of products and ideas were stolen from Mr. Bavineau.  Here's a sample:
http://www.intelproplaw.com/ip_forum/index.php/topic,13492.msg64975.html#msg64975
They tried to Devo my Evo and I want it back. email david_bavineau@yahoo.com I am the owner of Google, Burning Man and Devo. They are all stolen packages. I have all the evidence. Please contact me.
The Nene in Bavinene that is my heritage means enlightenment path. So that proves the Evo is mine on one level. So I am going to win on the Evo, Vevo, Devo which gets all other suits going and nails Burning Man. Give me my money back is the one. I have so much evidence you would not believe it. It's a cake walk to take Burning Man and Devo. Then Google will be ours. Let's get it going.
Bavinican / I can, I Phone, I Pod, I Mac (this ties in the ecstatic piece as a mac is 10. The e in ecstatic is ten.)
Burning Man logo Spells Bavineau = Be a V in an O.
Stong case for Toyota Logo
Ying Yang Twins = I am a Baveno Twin, the original. Check the dictionary for Baveno Twin. They used my music as well.
Many more cases.
Tons of evidence. Lets get me a lawyer please! I really want an attorney. If you are not an attorney but know one please refer my case to them. I really want to move on it.  Thank You David Bavineau / ecstatic

If not can you suggest more forums or lawyer referral companies to go through? Thanks!
 
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I'm doing well as of 11-12-13, 12:11 and regret only not getting that 1000th post. Hope all are doing well indeed! Thanks!

klaviernista

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Re: Can an out of state Attorney represent me in California?
« Reply #3 on: 01-13-10 at 09:04 am »

@DDPM   :o :o :o :o :o :o :o :o :o :o :o :o :o :o :o :o :o

Heh . . ."Devo my Evo"
« Last Edit: 01-13-10 at 11:34 am by klaviernista »
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David Bavineau

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Re: Can an out of state Attorney represent me in California?
« Reply #4 on: 01-13-10 at 04:09 pm »

What type of representation are you looking for?  If you want an attorney to represent you before the U.S. patent office (I inferred this from the fact that this thread is on an IP board), the answer is most likely yes, and is definitely yes if the representation desired relates to patent prosecution and the out of state attorney is registered to practice before the USPTO. 

If you are looking for representation in the state or federal courts located within California, most states allow for so called "pro hac vice" (for this occassion) representation, provided certain requirements are met.  In effect, pro hac vice admission allows an attorney who is licensed in state B but not state A, to represent a client for a particular occassion in state A.  The requirements for pro hac vice admission may differ by state, by jurisdiction within a state, and between state and federal courts.  Often, state pro hac vice rules require the out of state attorney to associate with an attorney licensed to practice in the state in which pro hac vice admission is sought..

I did a little digging on the CA courts website, and it appears that California does allow for pro hac vice representation.  See rule 9.40 of the California Rules of Court, available at: http://www.courtinfo.ca.gov/rules/index.cfm?title=nine&linkid=rule9_40

Good luck.


THANK YOU VERY MUCH FOR YOUR TIME AND EXPERTISE. I REALLY APPRECIATE IT. THE # AND NAME OF THE RULE IS GREAT.
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Isaac

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Re: Can an out of state Attorney represent me in California?
« Reply #5 on: 01-13-10 at 04:58 pm »


If you are looking for representation in the state or federal courts located within California, most states allow for so called "pro hac vice" (for this occassion) representation, provided certain requirements are met.

Quote
Often, state pro hac vice rules require the out of state attorney to associate with an attorney licensed to practice in the state in which pro hac vice admission is sought.

California's pro hac vice rules require associating with a CA licensed attorney.

Some (a minority of) federal courts allow lawyers licensed in any state to represent clients before them.   I have no idea what the rules are in the California federal courts.
« Last Edit: 01-14-10 at 12:34 pm by Isaac »
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Isaac

Yak

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Re: Can an out of state Attorney represent me in California?
« Reply #6 on: 01-14-10 at 12:29 pm »

My question is a little more pointed.  I feel I should know the answer but was hoping for a verification or advice.
Situation:
Registered patent "Attorney" licensed in "State A" represents "Client" who is a resident of "State B" in preparing and prosecuting a patent application.  Now Client asks Attorney to file LLC paperwork so Client can incorporate in State B.  Can Attorney licensed in State A represent Client in State B in setting up a corporate entity within State B?
Thanks in advance,
Yak
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Kaitlin

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Re: Can an out of state Attorney represent me in California?
« Reply #7 on: 01-14-10 at 01:48 pm »

Registered patent "Attorney" licensed in "State A" represents "Client" who is a resident of "State B" in preparing and prosecuting a patent application.  Now Client asks Attorney to file LLC paperwork so Client can incorporate in State B.  Can Attorney licensed in State A represent Client in State B in setting up a corporate entity within State B?

Unless state B's bar is very unusual, the answer is a resounding "No!"  Patent law is federal law.  Law of business organizations is governed by state law. 

Now if the attorney is with a firm in state A which has other attorneys barred in state B, he can bring them in in a supervisory capacity and do the work.  But to do otherwise usually counts as practicing law without a license.

This is one reason solos do well to be part of listserves for their subject area.  E.g., in our local bar's IP practice listserve you often see "off-topic" posts asking group members for referrals to attorneys in other states in other areas of law. 

If your client knows you'll set them up with someone good in their home state, they'll still come to you first knowing you'll do a good job referring them if you can't take the work yourself.
« Last Edit: 01-14-10 at 01:58 pm by Kaitlin »
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Kaitlin

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Re: Can an out of state Attorney represent me in California?
« Reply #8 on: 01-14-10 at 02:07 pm »

By the way, if client is choosing a name for the LLC, you can offer your IP insights on trademark law.  There is a common misperception among business start-ups that when a name is available to register with the state as an entity, that that means it is also available to use as a trademark.  Biiiiig mistake!   

So often have seen people who never gave a thought to checking on trademark rights, thinking that if they got the business name cleared by their state they were safe to use it as a trademark.  Here's where you can shine in helping them choose a name that can double as a strong mark and steer them away from bad choices.  And there are many mistaken perceptions out there about what makes a good mark.  You can offer a great service is helping them choose a good one from the beginning--you can counsel about the value of a trademark search to avoid problems down the road, what makes a strong mark and what a weak one, how to properly use a mark, etc.  If they're on a tight budget they'll be glad to learn from you they can start claiming their trademark rights by just using the name appropriately as a mark followed by the TM symbol; if they've the funds to register, you can handle registering the mark for them; all without being barred in their state.   Of course, this is assuming you ensure you yourself are up to speed on trademark practice or being mentored by someone who is.
« Last Edit: 01-14-10 at 02:16 pm by Kaitlin »
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Yak

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Re: Can an out of state Attorney represent me in California?
« Reply #9 on: 01-14-10 at 02:17 pm »

Thanks, That is what I thought.  And you read the back of my mind regarding the trademark comments.  I also do trademark work. 
So I guess I need to find some list serve or some way to build relationships with out of state attorneys who I can trust to provide incorporation legal services to a client. 
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Kaitlin

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Re: Can an out of state Attorney represent me in California?
« Reply #10 on: 01-14-10 at 02:25 pm »

Using listserves to get to know attorneys in other states is good, too -- in fact better -- but what I was suggesting and what I've seen done so frequently is asking people in your listserve to recommend people they know in other states. 

The former approach you suggest is better, of course, since you yourself can vouch for the person, but until you get that intimate knowledge yourself, relying on a "friend of a friend" (or more properly, "acquaintance of an acquaintance")is better than going at it cold.  (The thing to watch out for is when people pop up and say "oh I can handle that for you!" or "my partner is barred there and is great at that!".  If you don't know the people saying this, it could just be self-serving puffery.) 
« Last Edit: 01-14-10 at 02:29 pm by Kaitlin »
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Kaitlin

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Re: Can an out of state Attorney represent me in California?
« Reply #11 on: 01-14-10 at 02:31 pm »

I have no idea what the rules are in the California federal courts.
When I appeared pro hac in CA federal court back in the late 90's, our firm had to be associated with CA counsel and one of their attorneys had to be with me in the courtroom as I recall (patent litigation motion).
« Last Edit: 01-14-10 at 02:38 pm by Kaitlin »
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Isaac

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Re: Can an out of state Attorney represent me in California?
« Reply #12 on: 01-14-10 at 03:10 pm »

Unless state B's bar is very unusual, the answer is a resounding "No!"  Patent law is federal law.  Law of business organizations is governed by state law.

I agree with your answer regarding advising clients about LLC's, but I'd be careful about distinguishing based on federal law vs. state law.  You can represent clients before the PTO because there is federal law (namely the PTOs rules and regulations backed by federal statute) saying that you can do so.  But you cannot necessarily represent clients in other areas of federal law. 

« Last Edit: 01-14-10 at 03:15 pm by Isaac »
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Kaitlin

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Re: Can an out of state Attorney represent me in California?
« Reply #13 on: 01-14-10 at 03:16 pm »

Good point.  Thanks for the correction/clarification, Isaac.  (I had this niggling feeling that I shouldn't be putting it that way.  Need to pay more attention to those niggling feelings!)  If need to be barred in a state was based solely on whether dealing with state law vs. federal, I wouldn't have had to go in pro hac in CA on a patent motion! 

But more broadly, when it comes to just advising and drafting documents (which I was thinking of), and not appearing in court, I believe that the state law vs. federal law distinction holds.  Setting up an LLC doesn't involve appearing in court.   Nor does trademark registration or copyright registration.  I can advise anyone anywhere on copyright and TM (federal), but can't go into court to enforce TMs or copyrights unless am barred in the relevant jurisdiction. 

Of course, bar rules will probably require you to be barred in the state in which you are located, so the fact that you're doing a federal practice won't help you if you're not barred where you sit, but that's a matter of their being able to ensure attorneys working within the physical jurisdiction are subject to that jurisdiction's bar rules.
« Last Edit: 01-14-10 at 03:34 pm by Kaitlin »
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Kaitlin

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Re: Can an out of state Attorney represent me in California?
« Reply #14 on: 01-14-10 at 03:45 pm »

Actually, come to think of it, it is not uncommon to advise clients about the merits of whether or not to incorporate in this jurisdiction or that jurisdiction, regardless of where one is barred.  How many attorneys advising clients to incorporate in DE are barred there, e.g.? 

And of course anyone doing contract law has probably put in a choice of law clause without necessarily being barred in the state whose law was being chosen.

Anyone dealt with this recently and know where to parse the distinctions?

(My gut reaction was "no way" to the LLC formation, but in view of the above, I'm having second thoughts.) 
« Last Edit: 01-14-10 at 08:07 pm by Kaitlin »
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This post is an off-the-cuff musing and should not be misconstrued as legal advice. THERE IS NO ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. Proper legal advice requires full disclosure of facts-not appropriate to a public forum-and attorney research time and effort which has not been expended here.
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