Court to Non-Resident NY Attorneys: Get an Office Here If you Want to Practice

By Stephen Furnari - April 26, 2016
Court to Non-Resident NY Attorneys: Get an Office Here If you Want to Practice

Federal court rebukes challenge to 19th century NYS law requiring non-resident attorneys to maintain a physical office in New York.

In a two-to-one split decision released on April 22, 2016, the U.S. Court of Appeals for the Second Circuit held that a New York State law requiring non-resident attorneys to have a physical office address in New York did not violate the privileges and immunities clause of the U.S. Constitution.

The case was initially brought by Ekaterina Schoenefeld, a New Jersey resident and solo attorney who is admitted to practice law in New York. Schoenefeld claimed that New York State Judiciary law §470 was unfairly burdensome to non-resident attorneys and violated the Privileges and Immunities Clause.

In disappointing decision, court upholds antiquated attorney office requirement law. Click To Tweet

Schoenefeld won her motion for summary judgment in 2011 and the State appealed that decision. The circuit court certified to the New York Court of Appeals the question of “what are the minimum requirements” necessary to satisfy §470.

Earlier ruling seen to bolster Schoenefeld’s argument

In 2015, the Court of Appeals indicated that §470’s plain language requires non-resident attorneys to maintain a physical office in New York. According to many experts, including Schoenefeld, the Court of Appeals’  strict interpretation of the statute was seen as bolstering Ms. Schoenefeld’s argument.

The circuit court thought otherwise. In the majority opinion, the court found that §470 “was enacted not for a protectionist purpose to favor New York resident attorneys but, rather, to provide a means whereby nonresidents could establish a physical presence in the state akin to that of residents, thereby resolving a service concern while allowing nonresidents to practice law in the state’s courts.” Further, the court held that what Schoenefeld sought was “not to practice law in New York on the same conditions as a resident attorney who by virtue of home (or home and office) maintains a physical presence in the state. Rather, she seeks to practice law on different terms, specifically, without maintaining a physical presence in the state.”

In December 2015, I had the privilege of participating in a NYS Bar Association CLE panel discussion about this issue with Ms. Schoenefeld and other legal ethics experts. The consensus among the panelists was that Ms. Schoenefeld had a very persuasive argument. The unfavorable outcome in Ms. Schoenefeld’s case was clearly unexpected.

Now what? How should non-resident attorneys comply with §470?

Under New York Judiciary Law (“NYJL”) § 470, an out-of-state attorney who is licensed to practice in New York can do so if they maintain an “office for the transaction of law business” within the State of New York. Section 470 differentiates between instate and out-of-state residents, presumably, because an instate resident can use his or her home within New York State as the firm’s law office.

The trouble for non-resident attorneys is that there is no explicit guidance from the Rules of Professional Conduct or the legislature about what constitutes “an office for the transaction of law business”. Attorneys are left to figure it out for themselves.

According to case law, a traditional office or deskspace rental would meet the §470 office requirement. See, for example, Austria v. Shaw, 143 Misc. 2d 970 (1989); Rosenshein v. Ernstoff, 176 AD 2d 686 (App. Div. 1991); and Matter of Scarsella, 195 AD 2d 513 (App. Div 1993).

I also continue to maintain that non-resident attorneys can satisfy the requirements of §470 with an inexpensive and ethically compliant virtual office rental in New York. I have based this position on available case law, formal ethics opinions and policy statements made in the State’s filings in Schoenefeld. This video outlines my analysis.

Based on the lack of cases brought against non-resident practitioners, it would appear that the State doesn’t have an appetite for enforcing Judiciary Law §470. However, it has been used as a tool for litigators to get the pleadings of non-resident adversaries dismissed, creating situations where a client’s case could be prejudiced, and potentially exposing attorneys to malpractice claims or disciplinary actions.

What’s the future for the Judiciary Law §470 office requirement?

The earlier district court rulings in favor of Ms. Schoenefeld resonated with solo attorneys around the country, especially those who have licenses to practice in multiple jurisdictions. This has motivated ethics regulators in many states to re-examine their out-of-date law office requirements. New Jersey is one of the more recent states to do so.

In the case of §470, the lawyer office requirement was originally enacted in 1862 in a predecessor statute. According to the circuit court, it was “a means to ensure that the nonresident attorney establish a physical presence in the state (and therefore place for service).” Something no longer needed in today’s digital economy.

Overall, the regulatory trend is moving away from requiring an office to practice. It’s hard to believe that the State of New York, which touts itself as being business friendly and forward thinking, would not update this law to reflect modern-day practice.

According to the New York Law Journal, the NYS Bar Association has assembled a panel of 12 members to review Judiciary Law §470 and the recent decision in Schoenefeld. Given that roughly one-third of the Bar Association’s members are non-resident attorneys, we expect that a push will be made by them to change the law.

As for Ms. Schoenfeld, she plans to appeal the circuit court’s decision.
An Insider's Guide: How to Rent the Perfect Law Office

About Stephen Furnari

Stephen Furnari is a self-employed corporate attorney and the founder of Law Firm Suites, the operator of coworking spaces for law firms. Through Law Firm Suites, Furnari has helped hundreds of attorneys launch and grow successful law practices. He is the author of several eBooks, including “7 Deadly Mistakes that Prevent Law Practice Success” and “An Insider’s Guide to Renting the Perfect Law Office”. Stephen has been featured in the ABA Journal, Entrepreneur, New York Daily News and Crain’s New York. Connect with Stephen on Twitter (@stephenfurnari).

6 thoughts on “Court to Non-Resident NY Attorneys: Get an Office Here If you Want to Practice

  1. This is rather surprising, Steve. And, disappoining.

    As a practical matter, it seems to perpetuate, even exacerbate, the existing problems associated with doing business in NY as a multi-jurisdictional attorney, while solving nothing.

    Logically, it strikes me as parochial-minded and protectionist – the exact opposite of how a Mecca of International Commerce should appear.

    Thanks for this update. I wish Ms. Schoenfeld well with her appeal.

    • I think that the §470 office requirement served a valid purpose when it was originally enacted in 1862, and probably continued to do so up until the mid-90’s. But with today’s paperless practice, and the ability to “connect” with clients not just in person, but through any variety of secure digital means, it has become functionally irrelevant.

      My sense is that the law is still on the books not because of it having some protectionist effect – any out-of-state lawyer can easily comply with the law largely for free if they know someone who resides in NY that will allow the attorney to use their address – but because there is a lack of enthusiasm to do anything about it in any kind of meaningful, organized way.

      The NYSBA panel is taking a look at this, but from conversations with some of the members, their desire is to appeal to SCOTUS. I think that’s a big mistake. I don’t see any reason why the Bar can’t simply go to the legislature to have the law changed. I don’t see any special interest group who would care enough about this to put up any kind of opposition.

      I think it just needs a minimally organized effort. Maybe a fun project for all the nonresident attorneys at LFS!

  2. Pingback: How To Launch A Virtual Law Firm – LawTova

  3. Efrain Mendez-Morales
    on said:

    I was admitted in August 10, 2016, my major concern was how I will comply with CLE while I reside in Puerto Rico. Actually I request admission to the New York Bar because at that time I was looking for a job as an attorney there, but after several tried without any positive result I made the decision to stay in PR, but I do not want to decline my admission to the NY Bar so I support the no obligation of Non Resident attorneys to maintain an office space in the State of New York as a requisite to be active in the State Bar. They must consider how economical hardship could be to a non resident to maintain an office in the New York area beside his/her expenses in his/her resident state.

  4. Timothy E. Dixon
    on said:

    I have been a member of the State Bar of New York for about one hour, having just received an email from AD3 confirming that my bar admission and registration is now complete. I am admitted in three states in addition to New York. All three of the other states in which I am admitted repealed their residency requirements years ago. The first I heard of New York’s office/residency requirement was in the AD3’s email to me of earlier today. The requirement is odd, given that members of the New York bar are distributed throughout the country and the globe. At my admissions ceremony, attorneys from 34 US states and 24 foreign nations were sworn in. It does not surprise me that the office requirement is used as a cheap shot tactic by sharp practicing attorneys. Likely, a lot of non-resident attorneys have their “office” as a mail drop box at a UPS Store.

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