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.
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concluded that §470 is outdated and is not required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
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.
Contact: Christian Nolan