concurring in part, dissenting in part:
I part company because I cannot agree with the majority’s take on why an experienced attorney such as William Wheatley, Sr., who provided substantial legal advice in aid of Winterrowd’s action in California yet is not admitted to practice in the State of California or in the Central District of California, is nevertheless entitled to attorney’s fees under § 218.5 of the California Labor Code.11 am unaware of any authori*829ty construing § 218.5 to allow recovery of attorney’s fees for the work of a non-admitted attorney — or “consultant” — in these circumstances.
California substantive law determines the availability and amount of attorney’s fees in this diversity case. Mangold v. California Pub. Util. Comm’n, 67 F.3d 1470, 1478 (9th Cir.1995). Birbrower, Montalbano, Condon, & Frank v. Superior Court is the leading California authority on whether a non-admitted, out-of-state attorney may recover attorney’s fees for work on California legal matters. 17 Cal.4th 119, 70 Cal.Rptr.2d 304, 949 P.2d 1 (1998). The general rule is that “[n]o one may recover compensation for services as an attorney at law in this state unless[the person] was at the time the services were performed a member of The State Bar.” Id. at 5 (quoting Hardy v. San Fernando Valley Cham. of Comm., 99 Cal.App.2d 572, 576, 222 P.2d 314 (1950)). Birbrower recognizes exceptions,2 including that the state cannot regulate practice before a federal court — in this case, the United States District Court for the Central District of California.3 But Wheatley, Sr. never fulfilled the requirements for practice before the Central District, either. Only attorneys who are active members in good standing of the State Bar of California, or those who are permitted to appear pro hac vice, may appear and participate in a particular case in the Central District of California.4 An attorney such as Wheatley, Sr., who is not admitted to practice in California but is a member of the bar of the Supreme Court of Oregon, may submit a written application for permission to appear and participate pro hac vice, which may be granted in the court’s discretion. C.D. Cal. R. 83-2.3.1. An attorney is disqualified from permission to practice pro hac vice if he resides in California, is regularly employed in California, or is regular*830ly engaged in business, professional, or similar activities in California. Id., R. 83-2.3.2.
It is not for us to surmise that Wheat-ley, Sr. would have been granted permission to appear and participate pro hac vice had he applied, because he never did. Permission is not automatic even for distinguished lawyers. And it is by no means clear that Wheatley, Sr., although otherwise qualified by virtue of his admission to the bar of the highest court in Oregon as well as to the bar of the Court of Appeals for the Ninth Circuit, would not be disqualified on account of regularly engaging in professional activities in California.
As Wheatley, Sr. was neither admitted to practice by the California State Bar, nor by the Central District of California, I do not believe that he is entitled to an award of attorney’s fees. Therefore, I would affirm.
I
At the outset, I disagree with the majority that California rules are irrelevant and that Birbrower is inapposite. Maj. op. at 820-21, 822. Rather, in my view, California substantive law applies. Mangold, 67 F.3d at 1478; Z.A. v. San Bruno Park Sch. Dist., 165 F.3d 1273, 1276 (9th Cir.1995). As we said in Z.A., “[t]he Birbrower decision defined the practice of law in California within the meaning of Cal. Bus. & Prof.Code § 6125 and described exceptions to § 6125 where the practice of law in California by attorneys not admitted to the California bar is allowed.” 165 F.3d at 1276.
Birbrower involved a New York law firm that was not licensed to practice law in California. The firm performed legal services in California for a California-based client under a fee agreement stipulating that California law would govern all matters in the representation. The California Supreme Court invalidated the fee agreement to the extent it authorized payment for the services performed by the firm’s lawyers in California because practicing law without a license violated California Business and Professions Code § 6125,5 but not to the extent fees were earned for services performed in New York. Defining what the practice of law “in California” means, the court held that “[t]he primary inquiry is whether the unlicensed lawyer engaged in sufficient activities in the state, or created a continuing relationship with the California client that included legal duties and obligations.” Birbrower, 949 P.2d at 5. It concluded that an attorney may practice “in California” without being physically present, or appearing in court, in the state. Id. at 5, 10 (noting that physical presence in the state is one factor that may be considered but is not exclusive; and rejecting an exception to the general rule that an attorney is barred from recovering compensation for services rendered in another state not involving courtroom appearance).
Wheatley, Sr.’s activity in this California case was substantial. He gave 140 hours worth of advice and counsel, billing at the rate of $550 per hour. His activities ran the gamut of considering the complaint, amending the pleadings, working on discovery, assisting on summary judgment, and reviewing various legal issues that came up during the course of the proceeding. To avoid the application of Birbrower, Winterrowd primarily relies on the “federal exception” which, he argues, covers any work an out-of-state attorney does in a matter pending before a United States court, regardless of whether that attorney *831is admitted or could satisfy the conditions for admission to practice in that court. However, there is no support for construing this exception so broadly. As I read Birbrower, attorney’s fees may only be awarded for the practice of law in California with permission of the legislature or with consent of a court, state or federal. Wheatley, Sr. had no such leave.
The majority’s 'attempts to distinguish Birbrower also fall short. To the extent that the majority suggests that Wheatley, Sr. and his son were in a legal partnership — there was no partnership. (A formal partnership would have made this a very different case.) The relevant firm was Wheatley, Sr.’s Oregon firm, and the only attorney from that firm who worked on this case was Wheatley, Sr., who is not admitted to the California bar. And while ERISA preemption may have once been an issue in the case, that issue fell out after our opinion in 2003. Winterrowd has always maintained that the case presented a contract dispute arising under California law; the plaintiffs were California residents; the underlying contract was to be performed in California; and the matter was litigated in a federal court in California exercising its diversity jurisdiction. Furthermore, Birbrower explicitly forecloses the argument that, because Wheat-ley, Sr. did his work in Oregon, he could not be practicing law “in California.” Rather, Wheatley, Sr.’s work on this case appears to be the practice of law “in California” under Birbrower’s fact-specific test.
While it may be that courts are sometimes able to say that an out-of-state attorney would “certainly” have been admitted to federal court and that this certainty suffices in lieu of actual authorization, see Spanos v. Skouras Theatres Corp., 364 F.2d 161, 168-69 (2d Cir.1966) (en banc); Cowen, 230 Cal.App.2d at 872, 41 Cal.Rptr. 441, there is no basis for saying so here. Unlike the Local Rules of the Southern District of New York at issue in Spanos, which permitted “[a] member in good standing of the bar of any state” to be admitted pro hoc vice, the Local Rules of the Central District make authorization both discretionary and conditional. Wheatley, Sr. neither applied for authorization nor submitted any evidence from which the district court, or we, can be sure that he is not disqualified.6
As I see it, Wheatley, Sr. either was or wasn’t authorized to practice in California. He was not authorized to practice law by the State of California, or by the Central District. To me, it follows that there is no permissible basis upon which Wheatley, Sr. could give legal advice relating to Win-terrowd’s action in the District Court for the Central District of California for which attorney’s fees are recoverable under California law.
II
I am not persuaded otherwise by the majority’s view that there are alternate grounds upon which Winterrowd can recover fees for Wheatley, Sr.’s work. The majority first suggests that Wheatley, Sr.’s conduct did not rise to the level of “appearing” in court. It reasons that this court has permitted fee recovery for the work of “paralegals, database managers, *832legal support, summer associates, and even attorneys who have yet to pass the bar.” Maj. op. at 823. Certainly we have, but only -when federal law was applicable. The case upon which the majority relies, Nati Res. Def. Council, Inc. v. Winter (NRDC), allowed fees for a law school graduate acting as a consultant for NRDC under the Equal Access to Justice Act, 28 U.S.C. § 2412. 543 F.3d 1152 (9th Cir.2008). However, NRDC sheds no light on the availability of attorney’s fees for Wheatley, Sr.’s work under California law.7
Nor do I see how the work done by Wheatley, Sr., or the fees that he requests, can reasonably be analogized to the work done, or the fees charged, by paralegals, database managers, legal support, summer associates, or law school graduates who have yet to pass the bar.8 Wheatley, Sr. gave Winterrowd’s case the benefit of 140 hours of his professional judgment, for which he billed at the rate of $550 per hour. Perhaps I am wrong, but I don’t think even a summer associate (yet) commands $550 per hour. Rather, Wheatley, Sr. rendered the sort of services one would expect of a practicing lawyer, at a rate one would expect a practicing lawyer to charge. In fact, the expert justification for his fee request is based on comparable billing rates for senior partners in Los Angeles firms.
Next, the majority supposes that Wheat-ley, Sr.’s role is similar to “litigation support or consultants, and distinguishable from an ‘appearance.’ ” Maj. op. at 823-24. While I agree that Wheatley, Sr. did not “appear” in the district court by signing papers or arguing (as he did in our court on this appeal), I disagree that this answers the right question. The question is whether what he did — not what he didn’t do — constitutes the practice of law in California such as to preclude him from recovering statutory fees. Under California law, a non-admitted attorney can practice law without appearing in court or signing papers. See Birbrower, 70 Cal.Rptr.2d 304, 949 P.2d at 5, 10.
Even assuming that Wheatley, Sr.’s role was similar to a “consultant,” the majority points to no support in California law for the proposition that “consultants” doing the kind of work for which Wheatley, Sr. billed would be entitled to statutory fees. As the district court thought, this would circumvent the rules of practice as set out in Birbrower.9
*833Finally, the majority finds Dietrich Corp. v. King Resources, Co., 596 F.2d 422 (10th Cir.1979), persuasive. I do not, because Dietrich involved the practice of law, and rules of professional responsibility, in Colorado. Dietrich also involved a fee splitting agreement, not a fee-shifting statute which is at issue in our case. As the Tenth Circuit noted, “each state itself determines what is the practice of law and who may practice law.” Id. at 426. The problem there was whether Colorado counsel could ethically share fees on a contingency basis pursuant to a fee agreement with a law professor who was an expert in legal accounting, was employed as a consultant by lead counsel in actions pending in the United States District Court for the District of Colorado, and was not admitted to practice in Colorado when the services were rendered. Id. at 424-26. The Tenth Circuit held that the professor should be treated as a lawyer for purposes of the canons. Id. at 426. It concluded that his services did not constitute the unauthorized practice of law under the cases and ethics opinions it studied, given that admitted counsel acted as a filter between the unlicensed professor, the client, and the court. Id. However, the Tenth Circuit posed the question, and gave its answer, with respect to “the practice of law in Colorado.” Id. (emphasis added). So, regardless of how sensible the commentary which the majority recites may appear, Maj. op. at 823-24, it doesn’t speak to what constitutes the practice of law in California.10
The ultimate question for us is whether the legal services Wheatley, Sr. provided to or through his son’s firm constituted the practice of law in California such as to bar recovery of statutory attorney’s fees. The answer must be informed by the substantive law, including the rules of court, of California. Having held that the rules of court in California are irrelevant and Bir-brower is inapposite, the majority necessarily gets both the question, and the answer, off track.
Admission requirements are important. Perhaps they appear “draconian,” as the majority puts it, when applied to preclude fees for an experienced attorney of Wheat-ley, Sr.’s stature. But there is reason for admission requirements that extends beyond any individual attorney.11 There is no distinguished lawyer, or draconian result, exception. Admissions requirements *834serve “the legitimate interest of ensuring that all attorneys practicing before the courts ‘clear the standard required’ by the respective state bar associations.” Gallo v. U.S. Dist. Ct., 349 F.3d 1169, 1181 (9th Cir.2003). Standards differ from state to state, hence the Central District’s decision to rely primarily on membership in the California Bar is significant.12 For members of other state bars, the federal court believes that it should determine whether an out-of-state attorney may participate in pending litigation through application of its pro hac vice rules. This is just as reasonable as it is for the California courts to impose pro hac vice requirements.13 Creating a way for Wheatley, Sr. to receive fees without being admitted to either forum undermines this well-considered structure.
Wheatley, Sr. took himself out of the loop by failing to apply for admission pro hac vice.14 Having never applied, he is hard pressed to complain about how Rule 83-2.3.1 is written or construed. For this reason, and because entitlement to statutory fees turns on the substantive law of California, this is no occasion for us to rewrite the pro hac vice rules of the Central District. Even were the majority correct about how the Central District rule ought to read, who is eligible to get fees under the California Labor Code is an issue of state law.
One thing more. The majority’s preface talks of the need to accommodate realities of modern law practice, and takes upon this court the responsibility of doing so to avoid being judicial Luddites. Maj. op. at 819-20. I don’t see it this way. This case presents no issue involving modern technology- — there is no question here about the age of personal computers, the Internet, Blackberries, teleconferencing, emails, not even two-way wrist radios. Nor of multinational firms, or massive discovery projects with papers and data located in several states. Thus the opinion cannot, and does not, speak to any of these “realities.” Because nothing else is before us, its views about the Central District’s pro hac vice rules are necessarily limited to the recovery of attorney’s fees when the unadmitted attorney is acting, by himself, to help his son.
Even if this case were about accommodating realities of the practice of law, *835which it isn’t, that is a task for state legislatures, not federal appellate courts. As the Supreme Court has emphasized, “[s]ince the founding of the Republic, the licensing and regulation of lawyers has been left exclusively to the States and the District of Columbia within their respective jurisdictions.” Leis, 439 U.S. at 442, 99 S.Ct. 698. Our court, with good reason, has refrained from crafting exceptions to bar admission, because they are matters for the state legislature. Z.A., 165 F.3d at 1276.
In sum, as I see it, this case involves a statutory fee request governed by the substantive law of the State of California. The question is whether an Oregon lawyer who is not admitted to practice either by the California State Bar or the Central District of California may recover attorney’s fees for legal services rendered in aid of a California litigant on California law in an action pending in the Central District. The answer turns on whether his services constitute the practice of law in California under the law of California. I think they do, as it seems to me that extensive advice over a prolonged period of time with respect to California law for a Californian involved in litigation in a California forum meets the Birbrower test. This means that Wheatley, Sr. is barred from recovering statutory fees. But even if I am wrong about this, I would not be on board the opinion because the majority does not consider the answer to this question “controlling.”
Accordingly, I dissent on this issue; otherwise, I concur.
. California Labor Code § 218.5 provides that "[i]n any action for non-payment of wages ... the court shall award reasonable attorney's fees and costs to the prevailing party if the *829party to the action requests attorney’s fees and costs upon the initiation of the action.”
. The recognized exceptions are brief, consensual appearances before a state court or tribunal, permission to appear pro hac vice, practice before the United States courts, certificates allowing foreign legal consultants to advise on the law of the foreign jurisdiction where they are admitted, and representing parties in arbitration or conciliation of certain international commercial disputes. Id. at 6-7.
. Birbrower, 70 Cal.Rptr.2d 304, 949 P.2d at 6; Cowen v. Calabrese, 230 Cal.App.2d 870, 872, 41 Cal.Rptr. 441 (1964). In re Boole, upon which the majority relies, is to the same effect. It holds that "[a]dmission to practice law before a state's courts and admission to practice before the federal courts in that state are separate, independent privileges.” 222 F.3d 618, 620 (9th Cir.2000). However, Poole does not speak to the question in this case, which is whether an out-of-state attorney who is not admitted by either the state or the federal district court is entitled to fees under a California fee-shifting statute.
.The Central District's Local Rule 83-2.3 governs pro hac vice appearance. Section 83-2.3.1 provides:
Permission to Appear Pro Hac Vice. Any person who is not otherwise eligible for admission to practice before this Court, but who is a member in good standing of, and eligible to practice before, the bar of any United States Court, or of the highest court of any State, Territory or Insular Possession of the United States, who is of good moral character, and who has been retained to appear before this Court, may, upon written application and in the discretion of the Court, be permitted to appear and participate pro hac vice in a particular case.
Section 83-2.3.2 provides:
Disqualification from Pro Hac Vice Appearance. Unless authorized by the Constitution of the United States or Acts of Congress, an applicant is not eligible for permission to practice pro hac vice if the applicant:
(a) Resides in California; or
(b) Is regularly employed in California; or
(c) Is regularly engaged in business, professional, or other similar activities in California.
. Section 6125 is part of the State Bar Act, and provides: "No person shall practice law in California unless the person is an active member of the State Bar.”
. To the contrary, Wheatley, Sr.’s declaration in support of Winterrowd’s request for fees implicates C.D. Cal. R. 83-2.3.2. He states: "I have worked with [Wheatley, Jr.] on other cases, including one California case in which a multimillion dollar judgment was obtained against Southern California Edison." This raises a question about whether Wheatley, Sr. is "regularly employed in California,” or is "regularly engaged in business, professional, or other similar activities in California.”
. California courts have held that attorney’s fees are available for the services of paralegals in order fully to compensate the attorney. See, e.g., Guinn v. Dotson, 23 Cal.App.4th 262, 28 Cal.Rptr.2d 409 (1994). Aside from the implausibility of putting Wheatley, Sr. in the ranks of a paralegal, there is no evidence that the same rationale has any bearing in this case for nothing in this record suggests Wheatley, Jr. would have to pay his father if Wheatley, Sr. were not compensated under the fees statute.
. Wheatley, Sr. obviously did not think of his own services this way, as his bill included charges for the work of a "law clerk” at the rate of $100 per hour.
. The majority insists that if Wheatley, Sr.’s work "do[es] not constitute the unauthorized practice of law” in federal court, "then he is entitled to recover fees.” Maj. op. at 822 n. 3. I believe, however, that this conflates two issues. Even if Wheatley’s work were not unauthorized under federal law, there would remain the separate question of whether Wheatley, Sr. is entitled to state law statutory fees as a "consultant,” and this question would be resolved under California law, which would take into account the policies embodied in Birbrower.
At most, the majority suggests that California courts might now see this differently in light of supervening California Rule of Court 9.47 (formerly California Rule of Court 966), which permits out-of-state practitioners to practice law in California under limited circumstances. Maj. op. at 825, n.5. However, Rule 9.47 only applies to out-of-state attor*833neys who are already retained by a client or are providing advice to a potential client to assist the client in deciding whether to retain the attorney. Wheatley, Sr.’s services fit neither category.
. I also question the support that the majority finds in the ABA ethical opinion that the Tenth Circuit discussed in Dietrich. Neither party has raised the applicability of ABA authority to Wheatley, Sr.'s case and there is no indication that the relevant ABA rules are part of the legal landscape in California, which has not adopted the ABA Model Rules of Professional Conduct. See City and County of San Francisco v. Cobra Solutions, 38 Cal.4th 839, 43 Cal.Rptr.3d 771, 135 P.3d 20, 28-30 (2006) (rejecting ABA approach of limited “ethical screening” of government attorneys from matters related to former private practice, and disqualifying entire City Attorney’s office from prosecuting department head’s former client); State Compensation Ins. Fund v. WAS, Inc., 70 Cal.App.4th 644, 655-56, 82 Cal.Rptr.2d 799 (1999) ("[T]he ABA Model Rules ... do not establish the ethical standards in California, as they have not been adopted in California and have no legal force of their own.”). Moreover, Dietrich considered the ABA opinion in the context of the Model Code of Professional Responsibility, which has since been superceded by the Model Rules.
. See Russell v. Hug, 275 F.3d 812, 820 (9th Cir.2002) (noting that California Bar membership requirements "help to ensure a minimum level of acceptable competence for lawyers on the whole ”).
. See Russell, 275 F.3d at 819 (holding that district courts may rely on the infrastructure provided by state bar associations in meeting their own needs for monitoring attorney admission and practice in the federal courts); Giannini v. Real, 911 F.2d 354, 360 (9th Cir.1990) (outlining reasons for requiring bar applicants to a federal district court in California to be a member in good standing of the California Bar).
. See Paciulan v. George, 229 F.3d 1226, 1228-29 (9th Cir.2000) (rejecting a challenge to California's pro hac vice rules, and remarking that without them, "[a] California resident wishing to practice law in California but wanting to avoid the difficult California bar exam could become a member of the bar with the least restrictive admissions requirements, then demand admission to the California bar as a matter of right.”).
. This distinguishes Wheatley, Sr.'s situation from Spanos, where the client who sought to defend the attorney's action for fees on the ground of illegality was himself at fault because the client's agent, his in-state attorney, failed to obtain leave for the lawyer to appear pro hac vice in federal court. 364 F.2d at 169. In those circumstances the Second Circuit believed the client should not be allowed to escape from a contract to pay fees. Id.; Leis v. Flynt, 439 U.S. 438, 442 n. 4, 99 S.Ct. 698, 58 L.Ed.2d 717 (1979) (noting that "the precise holding [in Spanos ] was quite narrow.”). By contrast here, fees are not sought from the client but from the opponent under a fee-shifting statute, and the lawyer who seeks the fees is the one who failed to apply for pro hac vice admission.