Solo Attorney Takes New York's 'Bona Fide Office Rule' to the Supreme Court

Ekaterina Schoenefeld is a one-woman law firm working out of a duplex in New Jersey. She is also a force to be reckoned with, so get used to pronouncing her name.

Admitted to practice in New Jersey, New York and California, Schoenefeld sued in 2008 for a declaration that New York's law requiring out-of-state attorneys to maintain in-state law offices to practice there is unconstitutional. She has pushed the issue to the U.S. Supreme Court, and three bar associations and countless lawyers are following her in support.

Schoenefeld argues that New York's Judiciary Law Section 470 violates the U.S. Constitution's Privileges and Immunities Clause. It does not require in-state practitioners to have physical offices, only out-of-state lawyers. That's not fair, she says.

If you are starting to think she is right, join the club. Here are a few words from her sponsors:

"Protectionist" "Discrimination"

Those are not quotes from Schoenenfeld; those are quotes from a federal appeals court in her case.

"In sum, Section 470 discriminates against nonresidents with respect to the practice of law, a fundamental right long recognized as protected under the Privileges and Immunities Clause," Judge Peter W. Hall wrote.

"It is undisputed that, at the time Section 470 was enacted, it was part of a larger statutory scheme designed to prohibit nonresident attorneys from practicing in New York."

And that's what Schoenefeld said. Unfortunately, it was in a dissenting opinion, prompting her appeal to the U.S. Supreme Court.

Long Uphill Battle

Schoenefeld is joined in her petition by amicus briefs from the Association of Professional Responsibility Lawyers, the Association of Corporate Counsel and the New Jersey Bar Association. She is also carrying the hopes of solo practitioners virtually everywhere.

Carolyn Elefant, a popular solo blogger at My Shingle, has followed Schoenefeld's journey to the Supreme Court. She puts it this way:

"Let's face it: the real reason behind the law is protectionism, pure and simple," she writes. Elefant is not hopeful about the odds in the case, but she knows it is a good fight.

"Somehow, there's got to be a way to simplify the process of bringing bar challenges to outdated or flat-out unconstitutional ethics rules," she says.

Related Resources:

• Certiorari Petition Filed with the Supreme Court for Revision of NY Phyiscal Office Requirement (Crystal)
• 3 Reasons You Shouldn't Cap Hourly Fees (FindLaw's Strategist)
• ABA, Law Firms Speak Out Against Cuts to Legal Aid (FindLaw's Strategist)