April 22, 2016: New York State Bar President Miranda Launches Review of Federal Court Decision on Nonresident Attorneys

New York State Bar Association President David P. Miranda has formed an internal working group to review a federal court decision today that upheld a New York state law that requires nonresident attorneys to maintain offices within the state.

In Schoenefeld v. State of New York, the U.S. Court of Appeals for the Second Circuit found that Section 470 of New York Judiciary Law does not violate the Privileges and Immunities Clause of the U.S. Constitution.

The Court concludes “that Section 470 does not violate the Privileges and Immunities Clause because it 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.”

“This decision is of great interest to our members, more than 20,000 of whom reside or practice outside the state of New York,” said Miranda of Albany (Heslin Rothenberg Farley & Mesiti).

Miranda has appointed former State Bar President David M. Schraver of Rochester (Nixon Peabody) to chair a 12-member working group to review the decision .

Link to decision:
http://www.ca2.uscourts.gov/decisions/isysquery/a721e8f2-7e71-4f0d-8a3c-602a2b3c35e2/2/doc/11-4283_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/a721e8f2-7e71-4f0d-8a3c-602a2b3c35e2/2/hilite/

Background

Section 470 of the Judiciary Law mandated that a nonresident attorney maintain an “office for the transaction of business” within the state of New York. In 2008, 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, U.S. District Court Judge Lawrence E. Kahn of the Northern District of New York on Sept. 11, 2011 found that Section 470 violates the Privileges and Immunities Clause of the U.S. Constitution.

During the appeal process, the U.S. Court of Appeals for the Second Circuit on April 8, 2014 asked the state Court of Appeals to clarify the meaning of Section 470. Specifically, it certified this question: “Under New York Judiciary Law Section 470, which mandates a nonresident maintain an ‘office for the transition of law business’ within the state of New York, what are the minimum requirements necessary to satisfy that mandate?”

In a March 31, 2015 opinion written by Chief Judge Jonathan Lippman, the state Court of Appeals replied, “We hold that the statue requires nonresident attorneys to maintain a physical office in New York.”

That narrow interpretation of Section 470 guided today’s decision by the U.S. Court of Appeals, Second Circuit.

The 74,000-New York State Bar Association is the largest voluntary state bar association in the nation. It was founded in 1876.

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Contact: Lise Bang-Jensen
Director of Media Services & Public Affairs
lbang-jensen@nysba.org
518/487-5530