Solos at the Second [Circuit]: The Battle over the Constitutionality of NY Jud. Code Sec. 470 Continues

I’m fast learning that lawyers’ can’t just act as advocates in defending rights or effecting change in the law; sometimes, we’ve got to play the role of litigant. As I’ve posted previously, I’m defending the First Amendment not as an attorney but as a defendant and client. And now, I’m an amicus along with a group of other solo attorneys who are licensed in New York but do not reside in the state, and thus, must maintain an in-state office pursuant to NY Jud. Code Sec. 470. As you may recall, solo Ekaterina Schoenefeld originally challenged the law as a violation of the Privileges and Immunities clause of the constitution, and
prevailed in the federal district court. But the State of New York appealed to the Second Circuit, thus opening the door for amici to participate.

Thanks to the generous efforts of the Georgetown Law School Institute for Public Representation, lead by Leah Nicholls, Brian Wolfman and a team of students, the attached  amicus brief in support of Ekaterina was filed at the Second Circuit yesterday. Although I had contemplated a brief by MyShingle on behalf of solo and small firm lawyers, fortunately, because I’m a non-resident attorney licensed in New York, the office requirement applies to me as well and therefore, I was able to participate as well as provide some “on the ground” insight into the true cost of the additional office requirement. Of course, the impact of the statute of my own practice (which is really more prospective in nature) doesn’t match that of some of my co-amici, one of whom has a presence in New York but is still the subject of a disqualification motion.

The brief takes a two-pronged approach. First, the brief attacks the state for inaccurately portraying the requirements of Section 470. In an effort to avoid invalidation of its law, the state argued that Section 470 really isn’t all that onerous, and can be easily satisfied by an of counsel relationship or even maintaining a resident agent in the state. However, that’s not what the law says – Section 470 plainly requires out of state lawyers require an office for transactions in New York. A resident agent wouldn’t fit the statutory requirement. And while an of counsel relationship might be sufficient, creating an “of counsel” relationship isn’t as easy as finding a random lawyer in New York and slapping on an affiliate label. Bar rules require of counsel relationships to be “continuing and ongoing” in nature and may trigger conflicts or malpractice liability (for forms, ethics opinions and presentations on the of counsel relationship, see here; (if you don’t have the password, register here and it will be sent.) The first part of the brief makes the case that the office requirement is what the statute says, and that claiming otherwise to rescue the statute from invalidation is inaccurate and will only create added uncertainty.

The second part of the brief addresses the constitutional issues, essentially arguing that the law discriminated against New York barred attorneys who live out of state by subjecting them to an in-state office requirement that does not apply to New York barred lawyers who are also residents. There’s some added discussion of the costs of compliance, as well as some reasonable proposals for less onerous means that would satisfy the state’s concerns for effecting service of process on lawyers, while removing barriers to out of state lawyers who choose to maintain an office in a neighboring state or take advantage of their hard-earned New York license while living in another location.

The New York law may be one of the first vestiges of traditional law practice to be challenged. But unless other lawyers similarly impacted by these statutes step up to the plate like Ekaterina Schoenefeld, we won’t see much change. I’m working on ways that MyShingle can support these efforts, so if there are rules that you believe should be challenged, please keep me informed.