The principal question for decision is whether an out-of-state attorney can recover for legal services rendered in an antitrust suit in a New York federal court when he has not been admitted to the bar of New York State or of the federal court.
Defendants, Skouras Theatres and inter-related companies, appeal from a judgment in a diversity suit in the Southern District Court awarding Nick C. Spanos $89,606.29 as additional fees for legal services performed from 1953 to 1958 in connection with an antitrust suit instituted by the defendants in the Southern District Court, and dismissing defendants’ counterclaim for the return of $83,013.49 already paid, plus interest.1
The trial court, after finding that diversity of citizenship existed because Spanos was not a New Yorker, held that plaintiff’s failure to become a member of the New York bar did not preclude his recovering legal fees earned in connection with federal antitrust litigation in New York. We agree with the lower court that diversity jurisdiction existed, but find that his failure to enter a special appearance in the federal court prevents recovery.
*163Because of our disposition the issues on appeal are limited, and the facts, fully set forth in Judge Wyatt’s careful opinion, 235 F.Supp. 1 (S.D.N.Y.1964), can be summarized briefly. Spanos graduated from law school in 1947, having written a research paper about the movie industry and the antitrust laws. After a year in New York working in the motion picture antitrust field, he went to California where on January 4, 1949 he became a member of the California bar and commenced practice.
Spanos’ success in winning a large treble damage award in a suit conducted in California and Missouri federal courts brought him to the attention of George Skouras, the dominant figure in the movie theatre companies which are defendants here. Skouras planned to bring a similar suit (known as the “industry suit”) against the major movie producers for violation of the antitrust laws in the New York metropolitan area. Preparation of that case, which involved three law firms in addition to the companies’ house counsel, had already begun and a draft complaint had been circulated among the proposed defendants, leading to settlement negotiations with one.
Skouras requested that Spanos confer with him in New York City late in 1952 and he persistently sought to bring him into the litigation despite Spanos’ hesitancy. In the spring of 1953 Spanos made four trips to New York to attend settlement conferences and in California he did research work on the suit. Letters in June 1953 from Skouras to Spanos and from Spanos to James M. Landis, one of Skouras’ lawyers, show that Spanos had agreed to work on the industry suit in association with Dean Landis for an undetermined part of Landis’ contingent fee and with a minimum yearly guarantee of $15,000 as long as the industry ease remained pending.2 Spanos agreed to “move my principal place of business and my residence to New York City” by January 4, 1954.
Although Spanos worked extensively oh the industry case, he did not move to New York until 1955. In 1956 Landis’ firm withdrew, leaving Spanos’ status uncertain. The trial judge found that Skouras then renewed the promise of a contingent fee and a $15,000 yearly minimum with the amount of the contingent fee again left open. Spanos’ activities, however, decreased greatly thereafter, and when in August 1958 Skouras’ lawyers negotiated a settlement with two of the defendants in the industry suit Spanos only learned about it through the newspapers in September. When he wrote to Skouras Theatres demanding payment of his contingent fee, Skouras discharged him. Spanos brought this action a year later on October 13, 1959.
I.
Diversity jurisdiction in this case exists unless Spanos was a citizen of New York when the suit was commenced since the defendants are corporations with their principal place of business in New York. We agree with the district court that he was not a New Yorker.
When the suit began Spanos was resident in Missouri, having moved there in the summer of 1959 with his family. However, he declared at trial that his residence was temporary because he intended to return to California.
Domicile, on which citizenship is based, consists of residence in fact, coupled with the purpose to make the place of residence one’s home. State of Texas v. State of Florida, 306 U.S. 398, 59 S.Ct. 563, 83 L.Ed. 817 (1939). An old domicile continues even though a new residence is established until there is the intention to create a new home. Desmare v. United States, 93 U.S. 605, 23 L.Ed. 959 (1877); Restatement of the Law of Conflicts of Law § 23.
*164Appellants contend that Spanos could not have been a California citizen because he had abandoned all residence there in 1955, but by that standard he would not have been a citizen of New York in October 1959 either. Unless his domicile in California was superseded by one in New York, his absence from California would be irrelevant. Thus the district court was called upon to determine whether Spanos intended to make New York his home at any time while he was living there. There is no evidence at all as to where he voted and paid taxes, or about his social contacts, nor any contemporaneous statements as to his intent. Appellants can only point to Spanos’ New York residence — and, after his marriage in 1956, to that of his wife and family — and to the fact that New York was his principal place of business.
On the other hand, Spanos never applied to become a member of the New York bar although he could have applied for admission on motion after six months’ residence in New York.3 His contacts with California continued: he maintained an office in Los Angeles continuously, hired associates there, and made frequent trips to the West Coast. During 1955-1957 he received fees of at least $347,000 for cases conducted outside of New York. The trial judge found that “ [h] is purpose in coming to New York was in connection with the services for which he here sues. It seems fair to infer that his intention was to give up any residence in New York when these services were concluded.” We accept this finding.
II.
Spanos’ right to any recovery presents a more difficult problem. New York implements its strong policy against the practice of law in New York by persons not licensed and admitted to practice by the state, New York Penal Code McKinney’s Consol.Laws, c. 40, § 270, by refusing to permit suit for the recovery of fees for such unlawful practice. Spivak v. Sachs, 16 N.Y.2d 163, 263 N.Y.S.2d 953, 211 N.E.2d 329 (1965).
The district court granted recovery on the ground that Spanos’ admitted legal services were a “solitary incident” rather than a continuing course of conduct, and thus did not constitute the “practice” of law as defined and made unlawful by § 270. Alternatively, it held that New York could not prevent compensation of an attorney concerning a matter dealing solely with federal law in a federal court.
The Spivak case, upon which Judge Wyatt relied to construe the scope of the word “practice” in the New York statute, was overruled on October 21, 1965. Spivak v. Sachs, supra, rev’g, 21 A.D.2d 348, 250 N.Y.S.2d 666 (1st Dept. 1964). In that case, Spivak, a California lawyer, came to New York at the request of a client — who knew that he was not admitted to practice in New York or Connecticut — to give advice on the terms of a property settlement and the handling of a divorce suit already begun in Connecticut. He conferred with the client and her New York lawyers over a period of two weeks. The Court of Appeals rejected the decision of the lower court that these legal services were a “single, isolated incident” rather than the “practice” of law and reversed the judgment awarding compensation. “To say that [Spivak’s activity] falls short of the ‘practice of law’ in New York is to defeat section 270 and the policy it represents,” Chief Judge Desmond declared. “The statute aims to protect our citizens against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions.” 16 N.Y.2d at *165167-168, 263 N.Y.S.2d at 956, 211 N.E.2d at 331. In light of that decision, Spanos’ activities over a six-year time span, even though related to a single case, must now be considered practicing law. ~~
The New York decisions hold that unlawful practice includes counseling as well as court appearances. People v. Alfani, 227 N.Y. 334, 125 N.E. 671 (1919). And it extends to advice involving federal law as well as New York law. In In re Bercu, 273 App.Div. 524, 78 N.Y.S.2d 209 (1st Dept. 1948), aff’d 299 N.Y. 728, 729, 87 N.E.2d 451 (1949) the court restrained an accountant from advising on a matter of federal tax law. Recently the Court of Appeals affirmed an order restraining a Mexican lawyer from giving advice about Mexican divorce law, declaring that “[w]hether a person gives advice as to New York law, Federal law, the law of a sister State, or the law of a foreign country, he is giving legal advice” in violation of the statute. In re Roel, 3 N.Y.2d 224, 229, 165 N.Y.S.2d 31, 35, 144 N.E.2d 24, 26 (1957).
The broad sweep of New York decisions culminating in Spivak makes it clear that virtually no legal services may be rendered in New York by a person not admitted to the state bar except for “customary and innocuous practices” in transactions only “somehow” tied to New York. Spivak v. Sachs, supra, 16 N.Y.2d at 168, 263 N.Y.S.2d at 956. In this regard it is important to note that Spanos was not merely consulting with his clients’ local lawyers, a practice which indeed is common. Spanos, according to the trial judge, “worked directly with the Skouras companies and independently of Landis. Certainly he was not under any supervision of Landis and their association was in name only. Spanos put it in a letter in July 1953 that his hiring was to be ‘full and equal’ with Weisman, Sherpick and Landis.” 235 F.Supp. at 7. “[T]he ‘association’ between Landis and Spanos was only on paper; and from the beginning Spanos had been dealing directly with George [Skouras] and the Skouras companies.” 235 F.Supp. at 8. However broadly the exception for normal inter-state practice may be interpreted, certainly five years of work on an important legal matter for New York plaintiffs in a case involving antitrust violations which occurred in the New York area would be prohibited. The New York courts would refuse to grant recovery to Spanos if it were within their power to do so.
III.
Because the advice Spanos gave was related to federal antitrust law in connection with litigation filed and pending in a federal court,4 Judge Wyatt held that federal law must govern whether Spanos' could recover for his services so that “local policy [could not] obstruct the conduct of business in federal courts.” The question is to what extent the federal government has exercised its power and whether Spanos qualified to receive its benefits.
We agree with Judge Wyatt that it is within the power of the federal government to determine who will be permitted to practice in its courts and that this includes allowing compensation for services rendered in regard to litigation in the federal courts. This was the teaching of Sperry v. State of Florida ex rel. The Florida Bar, 373 U.S. 379, 83 S.Ct. 1322, 10 L.Ed.2d 428 (1963), where the Supreme Court held that the state law against unauthorized practice could not apply to appearances by a layman licensed by the U. S. Patent Office to practice before it. But the court restricted its holding to a very narrow range of permissible activities and recognized the states’ role: “Nor do we doubt that Florida has a substantial interest in regulating the practice of law within the State and that, in the absence of federal legislation, it could validly prohibit non-lawyers from engaging in this circumscribed form of patent practice. But ‘the law of the State, though enacted in the *166exercise of powers not controverted, must yield’ when incompatible with federal legislation.” 373 U.S. at 383-384, 83 S.Ct. at 1325, 10 L.Ed.2d at 431. The basis for federal preemption was found in the long history and implied Congressional approval of patent practice by laymen, including an administrative licensing scheme.
Although the First Congress acted on the premise of federal power and delegated regulation of counsel to the courts in Section 35 of the Judiciary Act of 1789, now 28 U.S.C. § 1654,5 the courts for the most part have been content to leave the regulation of attorney qualifications in the first instance to the state in which each court sits. However, it has been held that lawyers admitted to practice in a federal court are not automatically disbarred when the state has disbarred them. Theard v. United States, 354 U.S. 278, 77 S.Ct. 1274, 1 L.Ed.2d 1342 (1957); Selling v. Radford, 243 U.S. 46, 37 S.Ct. 377, 61 L.Ed. 585 (1917). It is implicit in those decisions that a person not licensed to practice in a state can practice law in the federal courts of that state. See Ginsburg v. Kovrak, 392 Pa. 143, 139 A.2d 889, appeal dismissed for want of a substantial federal question, 358 U.S. 52, 79 S.Ct. 95, 3 L.Ed.2d 46 (1958).
More important, the rules of the federal courts concerning admission of attorneys have long recognized that experts in federal law should be permitted, when appropriate, to conduct litigation in the federal courts regardless of whether they have been admitted to practice in the state in which the court sits. The rules of the federal district courts in New York State do not restrict admission to members in good standing of the New York bar.5 6 All four district courts permit admission pro hac vice of any attorney who is a member of the bar of any state. E. g., Rule 3(c), General Rules, Southern and Eastern Districts of New York.7 These rules express a policy that the New York federal courts, which are open to litigants from all parts of the country and which deal with matters of national interest often unconnected with state law, should not limit the practice before them to attorneys of a single state. Obviously the proper conduct of litigation in our federal courts would be frustrated unless the federal policy were paramount.
Thus Spanos could have applied for leave to appear in the industry suit in the Southern District Court under Rule 3(c). Had he been admitted he would be entitled to reasonable compensation despite the contrary policy in New York.
Unfortunately, however, Spanos did not apply for admission under Rule 3 *167(c).8 Judge Wyatt thought this was of no consequence, declaring that application was a mere formality, that Spanos would have been admitted as a matter of course, and therefore permitted him to recover. We do not think Spanos’ failure to be admitted pro hac vice can be excused in this way. Clearly admission was called for; as Judge Wyatt’s opinion makes clear, Spanos was not operating under the supervision or control of the other attorneys. We cannot presume that application would be a formality in every case because there may be circumstances which might well lead a court to deny admission, a matter which many cases declare to be within “the sound judicial discretion of the trial court.” Atchison, Topeka and Santa Fe Ry. Co. v. Jackson, 235 F.2d 390 (10 Cir. 1956). And we can hardly believe that the admission of lawyers to participate in protracted litigation is a matter to be treated lightly, especially in view of New York’s evident concern to uphold the standards of practice in the state. Therefore it would be inadvisable to lay down a rule which, in many instances, would require other federal or state courts to speculate whether a particular district court would or would not have admitted a particular attorney. Considering that the primary responsibility for the regulation of those who may practice law lies with the state and that an exception from such regulation for persons conducting federal litigation exists only because of the federal statute and rules of the district courts, we feel compelled to limit recovery for services to attorneys who have fully complied with the rules creating the exception of which they seek to take advantage.
Nor do we think it would be proper for the Southern District Court to have admitted Spanos nunc pro tunc after October 13, 1958, even though the industry suit was still pending. Rule 3(c) is to permit attorneys to appear before the court; having been discharged from the case, the only purpose in admitting Spanos would be to legitimatize his earlier activities so that he could recover his fees.
The defendants counterclaimed for the return of the $83,013.49 which they had already paid Spanos for his services, plus interest. The district court denied the-eounterclaim and the defendants have appealed this ruling. The New York rule in such a case is to leave the parties as they are. Spivak v. Sachs, supra, 16 N.Y.2d at 168, 263 N.Y.S.2d at 957, 211 N.E.2d at 331.
The judgment of the district court is reversed insofar as it awarded Spanos $89,606.29 and affirmed insofar as it dismissed the counterclaim of the defendants. The complaint is dismissed.
. No appeal is taken by plaintiff from the dismissal of his first count based on an alleged contract for a 17% percent contingent fee. The trial judge found a contingent fee had been promised but that the amount had not been agreed upon.
. The defendants here agreed to guarantee the fee. For a short time Landis made the monthly payments of the minimum fee to Spanos and was reimbursed by Skouras; after September 1953 the checks came directly from Skouras Theatres.
. Under New York Court of Appeals Rule VII-1, Rules for Admission of Attorneys and Counsellors-at-Law, the Appellate Division may admit without an examination persons who were admitted and had practiced for five years before the highest law court or highest court of original jurisdiction of the state in which they resided, after they had resided in New York six months. Spanos had been a member of the California bar for over six years when he moved to New York in 1955.
. The complaint was filed June 3, 1953. It was dismissed with leave to amend in July 1953 and an amended complaint was filed in September 1953.
. “In all courts of the United States the parties may plead and conduct their own cases personally or by counsel, as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein.”
. Rule 3(a) of the Southern and Eastern District Courts allows admission of “a member in good standing of the bar of a United States district court in New Jersey, Connecticut or Vermont and of the bar of the State in which such district court is located, provided such district court by its rules extends a corresponding privilege to members of the bar of this court.” The rules of the district courts of Connecticut and Vermont do extend corresponding privileges to members of the New York district courts; the New Jersey district court does not.
Rules 2(e) of the Northern and Western District Courts allow admission upon motion by a member of the court to a member of any district court provided he is also admitted to practice in the highest court of the state in which he maintains an office.
At least 20 district courts permit general admission to lawyers not admitted in the state in which the court sits.
. “A member in good standing of the bar of any state, or of any United States district court, may upon motion be permitted to argue or try a particular cause in whole or in part as counsel or advocate. Only an attorney or proctor of this court may enter appearances for parties, sign stipulations or receive payments upon judgments, decrees or orders.”
. Spanos did apply and was admitted to appear specially in the District Court for the Eastern District, but the record does not reveal when this occurred or the nature of the cases.