January 22, 2019: State Bar Association Adopts Measures Condemning the Federal Government Shutdown and Opposing Judiciary Law §470, Which Requires NY Lawyers to Maintain an Office in the State

The New York State Bar Association (NYSBA) has unanimously approved a resolution condemning the federal government shutdown and calling for it to end immediately, and also adopted a measure calling for the repeal of Judiciary Law §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.

Both resolutions were approved at NYSBA’s 278-member House of Delegates meeting in New York City Jan. 18 as part of the association’s Annual Meeting.

“The continuing government shutdown has become a Constitutional crisis as federal courts across the country have cut back operations severely and by later this week, will be forced to shut down entirely,” said NYSBA President Michael Miller.

“It is truly a dereliction of duty to have allowed a political fight to escalate to the point that essential parts of our judicial system – under the Constitution, a co-equal branch of government – are unable to serve the American people,” continued Miller. “Furthermore, it is a violation of the oath of office taken by the President and members of Congress to preserve, protect and defend the Constitution of the United States.”

NYSBA will be presenting a similar resolution to the American Bar Association House of Delegates at its meeting on January 28.

Judiciary Law §470
NYSBA also approved the report and recommendations of its Working Group on Judiciary Law §470, which was appointed in 2016 to address concerns from members. Nearly 25 percent of NYSBA membership reside or practice outside the state of New York.

The Working Group has concluded that §470 is outdated and is not required to ensure that a nonresident lawyer can be served with process. The group calls for the outright repeal of the law. 

Initially enacted in 1909, the Legislature then believed a non-resident attorney who did not have an office in New York might not be amenable to service of process. Click here to read the Working Group’s report.

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 §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 §470. 

In a 2015 opinion written by then-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.” By 2016, the Second Circuit upheld §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.

About the New York State Bar Association
The New York State Bar Association is the largest voluntary state bar association in the nation. Since 1876, the Association has helped shape the development of law, educated and informed the legal profession and the public, and championed the rights of New Yorkers through advocacy and guidance in our communities.

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Contact: Christian Nolan
cnolan@nysba.org
518.487-5536