November 04, 2011 Articles

State of New York Appeals Striking of Nonresident Office Requirement

Whether the plaintiff's favorable decision knocking out section 470’s office requirement will survive on appeal or perhaps prompt a legislative response remains to be seen.

By Chad A. Jira and Brian F. Toohey

On October 5th, 2011, New York filed its notice of appeal of District Judge Lawrence Kahn’s recent ruling upholding lawyer Ekaterina Schoenefeld’s challenge to New York’s Judiciary Law section 470. (The Northern District of New York’s docket identifies the following appellants:  all justices of New York Supreme Court, Appellate Division, Third Judicial Department, Committee on Professional Standards of New York Supreme Court, Appellate Division, Third Judicial Dept and its Members, Andrew M. Cuomo, New York Supreme Court, Michael J. Novack, State of New York, John Stevens.) Judge Kahn ruled that section 470’s in-state “office requirement” violates the Privileges and Immunities Clause (Article IV, section 2) of the U.S. Constitution. Schoenefeld v. State of New York, No. 1:09-CV-00504 (LEK/RFT), 2011 U.S. Dist. Lexis 100576, *4 (N.D.N.Y. Sept. 7, 2011).

Ms. Schoenefeld, a resident of New Jersey, admitted to practice in New York, New Jersey, and California, does not have an office in New York. Prior to Judge Kahn’s decision, New York lawyers residing in that state could practice without maintaining a law office, but New York admitted non-resident lawyers could not. (New York never enforced its in-state office provision against Ms. Schoenefeld, but she asserted that section 470 required her to avoid handling cases that would have constituted practice in New York.  Id. at *5–6.  Section 470 has, however, been actively enforced against others.  For example, the defendant’s answer was stricken in Empire Healthchoice Assurance, Inc. v. Walter Lester, D.C., 81 A.D.3d 570 (Sup. Ct. N.Y., A.D., 1st Dept., 2011), for noncompliance with section 470.  Id.) Whether Ms. Schoenefeld’s favorable summary-judgment decision knocking out section 470’s office requirement will survive on appeal or perhaps prompt a legislative response during the pendency of the appeal remains to be seen.

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