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New York Can Require In-State Offices for Nonresident Attorneys

By Casey C. Sullivan, Esq. on April 26, 2016 | Last updated on March 21, 2019

Want to represent New Yorkers while keeping your only law office in Connecticut or New Jersey? Fuhgeddaboutit!

The Second Circuit has upheld New York's law requiring out-of-state attorneys to maintain a physical office in the state, reversing a district court opinion declaring the rule an unconstitutional violation of the Privileges and Immunities Clause. Sorry Empire State moon lighters, it's time to start looking for a lease.

If You Want to Work Here, You Gotta Have an Address Here

New York's hostility to out-of-state attorneys is nothing new. The law, requiring nonresident lawyers to maintain a resident office, dates back to 1862 and requires nonresident lawyers to maintain an "office for the transaction of law business ... within the state" in order to practice within the state courts. (In-state attorneys are free to work out of their home, office-less.)

That requirement irked attorney Ekaterina Schoenefeld, a lawyer licensed in New York, New Jersey, and California, who heard about the restriction when attending a CLE class in NYC. Though she's barred in New York, Schoenefeld's office is in Princeton, New Jersey, and New York office rents are, well, not a minor investment. So, she sued.

Office Means Office

Last year, the District Court for the Northern District of New York found the law to be unconstitutional, by placing requirements on out-of-state residents that the state does not place on its resident attorneys.

The Second Circuit rejected that reasoning last Friday. The ruling does not violate the Privileges and Immunities Clause, the court found. It does not even discriminate against out-of-state attorneys. Rather, it places the same requirement on them as in-state attorneys: the need to have a physical address in New York.

"The fact that a nonresident attorney will have to establish that presence by leasing an office, while a resident attorney can use his home, does not unduly burden the nonresident," according to the Second Circuit.

The Second Circuit's ruling was in line with the interpretation of the New York courts. Before ruling, the Second Circuit certified the question to the New York Court of Appeals, asking it to interpret the meaning of an "office" in the statute.

Sure, an address alone could be enough, if the state were only concerned with having an address upon which to serve attorneys. But the law required more than that, the state found, since it demands an office "for the transaction of law business." The Second Circuit agreed, writing that "the office requirement could not be construed to require only an address for service. The term was properly understood to require a physical premises."

So, start saving for some extra rent, out-of-state lawyers, or maybe consider moving on over to New York. Poughkeepsie is lovely, I hear.

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