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

If You Were Elizabeth Wurtzel, Would You Have Called David Boies?

When reading about Prozac Nation author Elizabeth Wurtzel’s self-professed one-night stand of a life in New York magazine last week, I wasn’t expecting to encounter law office management material. I was just hoping for a few juicy tidbits about a talented author, not far from my age, who’d had amazing success, a great body, and plenty of publicity. What becomes the aging ingénue? Surely, despite the economy, the publishing industry’s inability to monetize the Internet, and the gloom, this of-the-moment 1990s writer hadn’t suffered the indignity of being offered 16-bucks-a-post blogging gigs or an unpaid regular column on a major website she could do for the exposure. Who knew the paean to psychopharmacology for better living and the author of Bitch had spent some recent quality time at Yale Law School?

Yet it wasn’t the late-in-life major career change that intrigued me so much as the self-proclaimed feminist’s approach to an icky landlord-tenant problem she was experiencing as a renter in Manhattan. What did the author of two bestsellers, the graduate from Yale, the lifelong New Yorker, the woman who didn’t need a secure but undoubtedly hellacious life as a wife to an investment banker, do when her apparently a little-bit-off landlord started calling her out about the trajectory of Wurtzel’s life? Wurtzel called a man.

She didn’t just call any man. She called the man. She called her boss, who happens to be David Boies, of pursuing antitrust charges against Microsoft fame, of loudly losing the Bush v. Gore contest for the 2000 presidential election notoriety, an undoubtedly intimidating litigator even if hasn’t won them all.

Elizabeth Wurtzel, feminist, lawyer, bestselling author, in distress, called a man, her boss, for help with her personal life.

Her claims of independence, her endless self-examination, her brilliant publishing career, and her top-tier education didn’t provide her with the tools she’d need to escape a rental and an intrusive landlord. Wurtzel not only called her boss for help, but, in her words, she let him take over. She got out of the rental, but did she set the rest of us back?

When you’re in personal trouble, don’t call your boss. Hire your own attorney, and deal with the problem professionally. Your law firm is not your personal playground, and managing partners are not your dad. Don’t cry in the office or in late-night phone calls to your peers.

Interestingly, Wurtzel is not listed in Boies, Schiller & Flexner’s attorney directory. Rumor-mongers say she was let go, she that she resigned. I say leave your personal life at home.

—Lori Tripoli

Cranky Clients May Be Shell-Shocked Sandy Victims

Even though a bit of time and a presidential election have separated much of the world from the news event that was Hurricane Sandy, it would be good to remember that it will be a good long while before much of the East Coast affected by the “Frankenstorm” will be back to normal. Even those who escaped relatively unscathed—with homes and offices essentially intact and power restored—are likely to be a bit shell-shocked from the event. They might be okay, but their communities are not. Many are still without power or Internet access. Neighborhoods have changed; people have died. This isn’t an event that people recover from within a short news cycle.  Even though recovery has already begun, it is far from complete. Lawyers and paralegals may do well to remember that their clients may still be traumatized by this event. Kudos to those legal organizations doing something to help.

—Lori Tripoli