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

Working with Killers

For the third time, a bar applicant with a felony murder in his past has been denied admission to the New York State Bar. In re Application of Anonymous for Admission as an Attorney and Counselor-at-Law, No. M-1559 (N.Y. App. Div. Feb. 18, 2014). Back in the 1970s, he was in all sorts of trouble, having been arrested for forgery, for cocaine sales, and for the death of an elderly woman whose apartment he had burglarized with a codefendant. After serving five years of a prison sentence, he attended law school and passed the bar exam. The applicant, now 66, first applied for bar admission in 1985, then again in the 1990s, and now most recently in the new millennium. For much of the last 30 years, the applicant has worked as a paralegal.

So the applicant did his time, turned his life around, and has apparently been a very capable paralegal for three decades, but apparently that’s not sufficient character and fitness to be allowed to practice law in New York. The problem? He’s sorry but not sorry enough.

“[W]e take into account the applicant’s seemingly unblemished personal life since his release from incarceration as well as his commendable work ethic, but we remain troubled by either his inability or his unwillingness to retreat from what seems to be a continuing defensive posture in accounting for aspects of his criminal history,” the majority opinion reads.

Dissenting judge Richard Andrias notes that the applicant has spent decades atoning for his misdeeds, has helped senior citizens, and even worked for a Supreme Court Justice in New York County. “As the former Justice who testified on petitioner’s behalf eloquently stated, ‘punishments—all punishments ––– must some day come to an end.’ … Nothing further can be accomplished, other than as an inappropriate punitive measure, by denying his application for admission, which poses no threat to the public,” Andrias writes.

Whether one agrees with the majority or the lone dissenter in this particular case, the character and fitness of all sorts of figures in one’s workplace may well not withstand close scrutiny. Here, someone who has been punished appropriately and is now working productively may well be found in any of our workplaces, in your office, in everyone’s neighborhood; but he apparently just can’t be promoted to attorney. That this particular applicant’s past is known, while the misdeeds of so many others are hidden, makes him, in many ways, admirable. He acted poorly, he was punished for it, and he has changed his life around. How many practicing lawyers can actually admit to that?

—Lori Tripoli