Amid Pandemic, New Bill Seeks to Repeal Law Requiring Physical NY Law Office

By Christian Nolan

New York State Capitol Building, Albany

With more attorneys working remotely than ever before due to the coronavirus pandemic, a bill has been introduced in the state Assembly that would repeal 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.

Assemblyman David Weprin has sponsored the legislation that was introduced in the Assembly’s Judiciary Committee. A similar bill was introduced last year by State Senate Judiciary Committee Chair Brad Hoylman.

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

“In a digital era where attorneys across the street and around the world are just a click away on their computer or smart phone, an antiquated rule from over a century ago requiring a physical office in the state no longer serves any purpose,” said NYSBA President Hank Greenberg. “That is now more clear than ever with so many lawyers working remotely in the midst of the coronavirus pandemic.”

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

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

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.

Greenberg has penned a letter to the editor of the New York Law Journal urging lawmakers to repeal Section 470. Click here to read the letter.

 

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