Constitutional Law

2nd Circuit asks top NY court to explain minimum needed to satisfy in-state law office requirement

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In the latest development in a New Jersey attorney’s challenge to a New York law requiring the state’s practitioners to maintain law offices there, a federal appeals court has asked New York state’s top court for input.

Specifically, the New York-based 2nd U.S. Circuit Court of Appeals is asking the New York Court of Appeals to explain the “minimum requirements” needed to satisfy a New York state statute requiring those who practice in New York, but don’t live there, to maintain offices in the state, the Commercial Division Blog reports.

“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?” is the question certified to the state appeals court by the 2nd Circuit in its Tuesday opinion (PDF).

The question stems from a federal constitutional case brought by a lawyer admitted in California, New Jersey and New York who maintains a solo law office in Princeton, N.J., roughly 50 miles from New York City.

Ekaterina Schoenefeld contended, and a federal district judge in Albany, N.Y., agreed, that the in-state-office requirement of the New York statute violates the privileges and immunities clause of the U.S. constitution. Less restrictive means are available to ensure that New York lawyers are available to their clients, the courts and legal process, the district court held in striking the state law, which treats attorneys who live in New York differently than those who live in adjacent states.

However, in response to an appeal of that decision by the state and its judiciary, the 2nd Circuit says it isn’t entirely clear what is needed to satisfy the New York statute.

For example, “the term ‘office,’ by itself, although not exactly pellucid, implies more than just an address or an agent appointed to receive process,” the 2nd Circuit writes. “And the statutory language that modifies ‘office’—‘for the transaction of law business’—may further narrow the scope of permissible constructions. In light of New York’s existing jurisprudence, for a federal court to construe the statute such that the word ‘office’ means either an in-state agent authorized to receive process or simply an address for service of papers will take us far beyond the limits of statutory construction that would comfortably apply here.”

Given the impact the law-office residency statute, and enforcement action over any violation, could have on thousands of attorneys and litigants, the federal appeals court is asking the state appeals court to provide its interpretation of the law.

“If the New York Court of Appeals accepts and answers our certified question(s), that answer, in all likelihood, dictates the outcome of the constitutional privileges and immunities analysis we have commenced and must complete as we decide the appeal before us,” the 2nd Circuit concludes.

Once the state appeals court has responded, the federal court will resolve the case.

See also: “NJ Solo Allowed to Proceed with Claim That NY Discriminates Against Out-of-State Lawyers” “Federal Judge Sides with NJ Solo, Strikes NY Law Requiring In-State Office for Out-of-State Lawyers”

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