Monday, April 21, 2014

Does an out-of-state lawyer have to maintain an "office" in New York to practice here?

The Second Circuit is wondering if a New York State law that requires that nonresident attorneys maintain an "office for the transaction of law business" within New York's borders in order to practice here violates the Constitution. It certifies the issue to the State Court of Appeals for a definitive answer.

The case is Schoenefeld v. State of New York, decided on April 8. Plaintiff lives in Princeton, New Jersey. She is licensed to practice in New York. Under the rules, she cannot practice in New York without an office. She says this rule violates the Privileges and Immunities Clause, the Equal Protection Clause and the Commerce Clause because New York residents are not required to maintain an office for the practice of law business. While New Yorkers who practice law have to be accessible to the legal community and be able to communicate with clients, "a review of those laws yields no specific authority specifically requiring New York residents to maintain any office at all." The Second Circuit (Raggi, Hall and Carney) says, "A New York attorney, therefore, may set up her 'office' on the kitchen table in her studio apartment and not run afoul of New York law."

The Second Circuit cannot decide this case without a definitive ruling on the meaning of "office for the transaction of law business." The normal interpretation of the word "office" sounds like a place where the office has a phone, file cabinets, staff, etc. While the State says this requirement simply means a place where the lawyer can be served legal papers, the Second Circuit does not think State law precedent supports that interpretation. So, the Court says, "as it stands, it appears that Section 470 discriminates against nonresident attorneys with respect to their fundamental right to practice law in the state and, by virtue of that fact, its limitations on non-resident attorneys implicate the Privileges and Immunities Clause." But the Second Circuit's suspicions about the law's constitutionality are premature without a ruling from the State Court of Appeals on this issue. The State court is better suited to resolve this issue, since it lives and breathes state law 24 hours a day, 7 days a week.

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