Estate of Condon

In Estate of Condon (1998) 65 Cal.App.4th 1138, the probate court denied a Colorado attorney statutory fees for services rendered to the co-executor of the decedent's estate on the ground that a provision of the State Bar Act, Business and Professions Code section 6125 (section 6125) prohibits the practice of law in California " 'unless the person is an active member of the State Bar.' " (Condon, at pp. 1141-1142.) The Condon court reversed, finding that the Probate Code authorized the fee award to an out-of-state attorney and that section 6125 did not proscribe it. The California Supreme Court granted review and then remanded the case to the Court of Appeal to reconsider its decision in light of Birbrower, Montalbano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119 (Birbrower). (Condon, supra, 65 Cal.App.4th at p. 1142.) After reconsideration, the Condon court affirmed its prior disposition, finding that (1) the Colorado attorney was not only entitled to statutory compensation pursuant to section 10810 et seq., such compensation was mandatory and (2) the Colorado attorney had not violated section 6125, as that statute was construed in Birbrower, supra, 17 Cal.4th 119. (Condon, supra, 65 Cal.App.4th at pp. 1143-1148.) With regard to its first point, the Condon court noted, among other things, that "the language of the Probate Code is mandatory; it provides 'the attorney for the executor shall receive compensation' , making no exception for out-of-state attorneys, and our Supreme Court has held that the attorney's right to ordinary compensation is absolute ." (Condon, supra, 65 Cal.App.4th at p. 1143.) The court also noted that courts had "approved without question" the payment of statutory fees to out-of-state attorneys retained by a California executor and that "there is nothing in the Probate Code or prior cases to suggest that they are disqualified from receiving statutory compensation." (Id. at pp. 1143-1144.) Under the second prong of its analysis, the Condon court concluded that the Colorado law firm did not practice law in California within the meaning of section 6125 when its members entered California to practice law on behalf of the executor, who was also a Colorado citizen. (65 Cal.App.4th at pp. 1144-1148.)