July 17, 2014 Articles

An Update on the Schoenefeld Appeal

A non-dispositive opinion by Circuit Judge Peter W. Hall leaves the ultimate question of the appeal unanswered for now.

By Chad Jira

 

[UPDATE: Updated information on this case can be found here.]

On April 8, 2014, The U.S. Court of Appeals for the Second Circuit ended its 18-month silence regarding the constitutionality of New York’s attorney in-state office requirement, New York Judiciary Law Section 470. The Court, though, did not settle the matter. Rather, the non-dispositive opinion by Circuit Judge Peter W. Hall leaves the ultimate question of the appeal unanswered—for now—and instead seeks the guidance of New York’s top court on the question of what would minimally satisfy § 470’s mandate that non-resident attorneys (and only non-resident attorneys) keep an “office for the transaction of law business” within the state. Schoenefeld v. New York, et al., 748 F.3d 464 (2d Cir. 2014). The specific question certified to the New York Court of Appeals on April 8, 2014 is: “Under New York Judiciary Law § 470, which mandates that a nonresident attorney maintain an ‘office for the transaction of law business’ within the state of New York, what are the minimum requirements necessary to satisfy that mandate?” Id. at 471.

Section 470 effectively requires non-resident attorneys to maintain an “office for the transaction of law business” within New York, but imposes no such burden on resident attorneys. Schoenefeld, 748 F.3d at 465. Plaintiff, now Appellee, Ekaterina Schoenefeld is a resident of New Jersey admitted to practice in New York, among other states, but who lacks the requisite New York office. Ms. Schoenefeld challenged the constitutionality of § 470’s in-state office mandate, which she claims has precluded her from handling cases that would have constituted practice in New York. Id. at 466. In 2011, the U.S. District Court for the Northern District of New York agreed with her that the law violated the Privileges and Immunities Clause (Article IV, Section 2) of the U.S. Constitution. Id. at 465-66 (citingSchoenefeld v. New York, 907 F. Supp.2d 252, 266 (N.D.N.Y. 2011)). Shortly thereafter, New York appealed the ruling to the Second Circuit Court of Appeals.

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