Bill To Repeal NY Law Office Requirement Advances

By Christian Nolan

Bill To Repeal NY Law Office Requirement Advances

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The State Senate Judiciary Committee voted April 27 to advance NYSBA-backed legislation that would repeal the controversial Judiciary Law Section 470, which requires lawyers admitted to practice in New York – but residing in other states – to maintain a physical law office in New York State.

Nearly 25 percent of NYSBA membership reside or practice outside the state of New York.

The outdated law was enacted in 1909 because the New York State Legislature then believed that a nonresident attorney without an office in New York would not be amenable to service of process.

“The New York State Bar Association enthusiastically supports the repeal of this antiquated law and applauds State Sen. Brad Hoylman and the other members of the Senate Judiciary Committee for advancing this legislation,” said NYSBA President Scott M. Karson. “In our rapidly modernizing legal world, the profession has adapted with electronic filing of documents in the courts, virtual conferences and court proceedings, along with already established standards for perfecting service. Our laws must continue to adapt with the times too.

“Judiciary Law Section 470 places an onerous burden on rural and underserved communities and limits the availability of legal services simply because of where an attorney chooses to call home,” continued Karson. “The association will continue to advocate for its repeal and thanks the legislature for moving the bill one step closer to enactment.”

In January 2019, NYSBA’s House of Delegates approved a resolution calling for the outright repeal of the law and approved the report and recommendations of its Working Group on Judiciary Law Section 470, which was appointed in 2016 to address concerns from members.

In 2009, Ekaterina Schoenefeld, a New Jersey resident who was admitted to practice both in New York and New Jersey, challenged the constitutionality of the law in federal district court.

In Schoenefeld v. State of New York, the U.S. District Court of the Northern District of New York ruled in 2011 that Section 470 violates the Privileges and Immunities Clause of the U.S. Constitution. The state Attorney General appealed and during the appeal process in 2014, the U.S. Court of Appeals for the Second Circuit asked the state Court of Appeals to clarify the meaning of Section 470.

In a 2015 opinion written by then-Chief Judge Jonathan Lippman, the state Court of Appeals replied, “We hold that the statute requires nonresident attorneys to maintain a physical office in New York.”

By 2016, the Second Circuit upheld Section 470, holding that the statute did not violate the Privileges and Immunities Clause. Schoenefeld filed a petition for certiorari to the U.S. Supreme Court, which was denied in 2017.

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