Arbitrator’s Failure to File Certificate Approving Out of State Attorney Until After Filing of the Favorable Arbitration Award Was Deemed Harmless Error.
For those practitioners that are involved in arbitrations (and most litigators are in this day and age), here is an interesting case about approval of out of state attorneys and their representations of clients in arbitrations.
Code of Civil Procedure section 1282.4 enables out of state attorneys to represent clients in an arbitration if the arbitrator approves his appearance through a certificate that is signed and the certificate is then sent to the California State Bar. The purpose is to ensure that the out of state attorneys are subject to the jurisdiction of California courts, with the certificate also requiring that the client have associated in a California attorney in the process.
In North By Northwest Productions, Inc. v. First Look Studios, Inc., Case No. B219503 (2d Dist., Div. 8 Oct. 18, 2010) (unpublished), out of state attorney did represent a client and reaped a successful arbitration award inclusive of over $9,000 in attorney’s fees (which increased to a little over $43,000 upon the lower court’s post-confirmation blessing of the award). The procedural hang-ups were that the arbitrator did not sign out of state attorney’s section 1282.4 certificate until after the arbitration award was filed and that the certificate was filed with the State Bar almost a month following the award.
Losing party challenged the award as a nullity based on these mishaps.
The appellate court disagreed, finding they were not prejudicial in nature. Usually, the prejudice would occur only to a party who lost an arbitration while being represented by an unlicensed person. Although not condoning what happened, any error was harmless.
As to the amount of the fees award, the appellate court found the award to be proper given that out of state attorney had to travel back and forth for numerous defense-initiated proceedings and that the $225 hourly rate charged was quite reasonable in nature.