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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