Thursday, April 10, 2014

Must a Lawyer Admitted in New York Have an Office in New York?

Ah, the joy of not having a national bar but admitting lawyers on a state-by-state basis. How much energy is expended every year bickering over where lawyers admitted to the bar, or to multiple bars, can actually practice? What, if any, sort of virtual office is acceptable, and where must it be? Can a lawyer admitted in New Jersey and New York and living in New Jersey still appear before New York courts?


So much may depend on what the meaning of office is. Does it require a physical space of some sort? Does it just mean a service-of-process designee? The U.S. Court of Appeals for the Second Circuit has certified a question to the New York Court of Appeals seeking the following guidance: “Under New York Judiciary Law § 470, which mandates that a nonresident attorney maintain an ‘office for the transaction of law business’ within the state of New York, what are the minimum requirements necessary to satisfy that mandate?” Schoenefeld v. New York, No. 11-4283-cv, slip op. at 12 (2d Cir. Apr. 8, 2014).

In 2011, the U.S. District Court for the Northern District of New York found New York Judiciary Law § 470 to violate the Privileges and Immunities Clause, U.S. Const. Art. IV, § 2, which, as a reminder, provides that citizens of each State “shall be entitled to all Privileges and Immunities of Citizens in the several States.” Schoenefeld v. New York, 907 F. Supp. 2d 252 (N.D.N.Y. 2011).

On appeal, the Second Circuit observed that “whether Section 470 survives constitutional scrutiny depends on the construction of the in-state office requirement imposed on nonresident attorneys” before certifying the question to the New York Court of Appeals about minimum requirements of an office. Schoenefeld v. New York, slip op. at 12.

—Lori Tripoli

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