The U.S. Supreme Court on Monday denied review to a lawyer’s constitutional challenge to New York’s requirement that nonresident members of the New York bar maintain a physical office for business within the state.
The justices, without comment in Schoenefeld v. Schneiderman, turned away a petition filed by Ekaterina Schoenefeld, a New Jersey resident who is licensed to practice law in New Jersey, New York and California.
Schoenefeld maintains an office in New Jersey, but not in New York. She argued that the New York office requirement violated the Constitution’s privileges and immunities clause.
The U.S. Court of Appeals for the Second Circuit had rejected her claim, finding the state requirement was not enacted for the protectionist purpose of favoring New York residents in their ability to practice law. Instead, the circuit said, the requirement provides “a means whereby nonresidents could establish a physical presence in the state akin to that of residents, thereby resolving a service concern while allowing nonresidents to practice law in the state’s courts.”
Schoenefeld claimed that she had declined occasional requests to represent clients in New York state courts to avoid violating New York Judiciary Law §470, which states: “A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.”
The New Jersey lawyer, who has been fighting the requirement for nine years in New York federal courts, drew support for her petition from the Association of Corporate Counsel and the New Jersey State Bar Association, among others.
Schoenefeld’s motion for summary judgment was granted in September 2011 by Northern District Judge Lawrence Kahn, who ruled §470 violated the privileges and immunities clause for imposing an unreasonable burden on citizens from other states. New York appealed that ruling, and the Second Circuit reversed summary judgment in April 2016, holding that the privileges and immunities clause was not violated.
Judge Reena Raggi, joined by Judge Susan Carney, held that because the law was enacted “not for a protectionist purpose to favor New York resident attorneys but, rather, to provide a means whereby nonresidents could establish a physical presence in the state akin to that of residents, thereby resolving a service concern while allowing nonresidents to practice law in the state’s courts.” In dissent, Judge Peter Hall said Schoenefeld established the law has a protectionist purpose and the state’s explanation of such discrimination fails to survive scrutiny.
“The U.S. Supreme Court today announced that it would not hear an appeal from the decision of the U.S. Court of Appeals for the Second Circuit in Schoenefeld v. State of New York, which upheld the constitutionality of a New York law requiring nonresident attorneys to maintain a physical office in New York in order to practice in the state,” said New York State Bar Association president Claire Gutekunst. “Now that the legal case has been concluded, a working group comprising state bar members who reside both in and outside the state will review the issues involved and consider possible recommendations for changes in New York judiciary law section 470. The working group is chaired by former association president David M. Schraver of Rochester.”
The New York City Bar Association, through Eric Friedman, director of communications, declined to comment on the Supreme Court order. Schoenefeld and the New York Attorney General’s Office did not respond to requests for comment.
Anthony Davis of Hinshaw & Culbertson in New York, whose firm submitted an amicus curiae brief to the Supreme Court on behalf of the Association of Professional Responsibility Lawyers, said he was not surprised by Monday’s decision.
“It’s bad for the profession and the public to have rules governing the legal profession that make no rational sense in 2017,” said Davis, whose practice focuses on laws governing lawyers. “Inconsistent treatment of lawyers who are equally entitled to practice law, based on where they live, is bad for everybody—it reduces client choice.”
After they were denied redress through the courts, advocates of a change are “going to have to get the Legislature to change the statute, which I think is unlikely to happen in isolation, unless and until the Judiciary Law as a whole is next reviewed,” Davis said.
If New York’s barrier to outsiders were eliminated, “the universe of lawyers available for clients to engage would be greater, thereby enlarging access to legal services, which might even reduce the cost of at least some kinds of legal services,” he said.
The New Jersey State Bar Association also submitted an amicus brief to the Supreme Court.
“The NJSBA feels New York’s bona fide office rule is an anachronism in today’s modern world, where technology and sophisticated forms of digital communication are standard throughout the business community, the bar and the public at large,” president Thomas Prol said in a statement. “Indeed, the bona fide office rule, which New Jersey did away with in 2013, seems oblivious to modern attorneys who are increasingly mobile, some of whom may spend no time at the office because they have no need for one, at least not the traditional version contemplated by the rule.”
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