THE SECOND CIRCUIT DELIVERS “HOT POTATO” TO THE NEW YORK COURT OF APPEALS

Oakland, CA (originally published, Oct. 15, 2014)  The New York Court of Appeals received a “hot potato” of sorts from the United States Court of Appeals for the Second Circuit in April 2014 regarding a state law that requires attorneys admitted to practice in NY who reside elsewhere to maintain an office in state.  In Schoenefeld v. New York, 748 F.3d 464 (2d Cir. 2014), the Second Circuit certified a question regarding the minimum requirements for such an in state office to New York’s highest court after the Northern District of New York struck down the law.  A NY attorney residing out of state successfully argued at in the trial court that the requirement violates the Privileges and Immunities Clause of the U.S. Constitution.

In certifying the question, the Second Circuit stated that an answer to the question controls the law’s constitutionality.  What makes the New York Court of Appeals’ task challenging is an apparent need to define the minimum requirements for an office in a way that renders the statute constitutional when the statutory text implies and NY appellate decisions have held that non-resident must maintain some sort of physical or “bona fide” office space there and when a resident attorney “may set up her ‘office’ on the kitchen table.”

In my humble view, the NY Court of Appeals should not bother to answer the certified question in a way that supports the statute.  The law dates back to 1866 – that’s right 1866.  Back then buggies from the Bronx or Brooklyn probably took longer to arrive at Manhattan’s famed Centre Street courthouse then it now takes an attorney leaving his house in D.C. to get there for a morning hearing, train or flight notwithstanding.  Back then transportation from Buffalo took substantially longer than a flight from Los Angeles – or even Honolulu – takes today.

While in the past there may have been a need for a non-resident attorney to have a place in state to meet with clients or more importantly to receive legal papers from other attorneys and courts, no such special need for an in state office exists any more.  Electronic court filing, mail, e-mail, overnight delivery, readily available courier services in nearly all parts of the country, and quick flights, render the in state office requirement an anachronism.

The Court of Appeals could in theory answer the certified question by holding that the law only requires the appointment of an agent for service of process before a non-resident NY attorney may practice in New York.  That argument was advanced as a fallback by the State of New York in Schoenenfeld.   While such an appointment of service of process in state is almost certain to pass Constitutional muster, the appointment of any agent for service of process is not what is required by the plain language of the statute.

NY like all other states has an important interest in providing highly effective and affordable legal services both inside and outside its courts.  In my view there is no reason to deny clients their choice of NY-licensed attorneys based on their expertise, their affordability, their familiarity with the specifics of the case or the client, their ethics, or other factors in their discretion.

This writer is of the firm belief that state bars have far more to gain than to lose by opening their ranks to attorneys who reside in and even primarily practice in other jurisdictions.  The crosspollination of attorneys can substantially raise the local bar so to speak.  The benefits of crosspollination should not be downplayed.  Attorneys in some jurisdictions may be more advanced from a technology perspective than their NY counterparts.  Or, the NY attorney based in another jurisdiction may come from a tradition of oral argument that is better than the local level of oral argument.  In other words, allowing easy access to NY courts for qualified attorneys improves local practice.

Moreover, I would think that the average NY attorney loses substantially more from in state office requirements than she gains.  Delaware has an even more draconian in state office requirement than New York does.  For years, many a large New York firm practicing in the Delaware Court of Chancery has had to incur the rather massive costs of maintaining fully-staffed Delaware offices to appear in court there when they are every bit as capable of arguing Delaware cases from their offices in New York.

NY has one of the best and most storied bars in the country.  Its attorneys whether in state or out of state should be forced to compete based on the quality and efficiency of their legal services – not where they reside.

John Claassen practices civil litigation from the offices of Claassen, P.C. in Oakland, California.  For more information about the firm, please click here.  While this blog entry is published for informational purposes, portions of this blog post may constitute "communications" within the meaning of California Rule of Professional Conduct 1-400.  Thus, as a possible "Advertisement" it is not intended to constitute legal advice.  Similarly, no statement made in this blog post is intended as a guarantee, warranty, or promise about the outcome of any litigation matter taken on by the firm.  This Advertisement is not intended for any matter that would require the rendition of legal services outside of the State of California or under the laws of any jurisdiction outside of the State of California. Copyright 2014-15. All rights reserved.