Determination of A Bonafide NY Office Requirement Is Next Step To Its Demise

The New York Journal reports on a recent Court of Appeals ruling interpreting NY Judiciary Law §470 as requiring attorneys who are not residents of New York to maintain a physical office in the space to practice. That physical office requirement means a real space – not a kitchen table or a corner in Starbucks. The requirement only applies to non-resident lawyers, New York attorneys who reside in the state aren’t similarly bound.

So how come I’m not criticizing this apparently idiotic ruling as I did five years ago when New Jersey issued a similarly restrictive reading of the bonafide office requirement (which has since been changed)? Because the New York Court of Appeals ruling is the first step towards the long and exceedingly slow journey to its demise.

More than six years ago, New Jersey based shingler Ekaterina Schoenefeld  challenged the constitutionality of New York’s office requirement, arguing that it violated the Privileges and Immunities Clause of the United States Constitution, imposing undue burdens on out-of-state New York attorneys’ ability to use their New York bar license.  

Schoenefeld won at the federal district court level. The New York regulators appealed the district court ruling to the Second Circuit which certified the question of the meaning of the term “office” to the New York Court of Appeals. Now that New York has confirmed the overly restrictive meaning of the term office, the path is clear for the Second Circuit to declare the law unconstitutional.

By now, it’s yesterday’s news that the workplace is changing. Technology is the primary driver of change, and while technology doesn’t necessarily replace ideology, technology changes ideology. Meaning that as we learn what’s possible we change our perceptions of what’s acceptable. Twenty years ago when I started my firm, a baement-dwelling solo like me was viewed as fly-by-night and so I rented an office front to conceal my status and appear more professional. Today, tech lets us accomplish the same tasks as effectively from anywhere, and so gradually, lawyers have come to view the importance of location as secondary. That’s not to say that a traditional office doesn’t confer benefits – for many lawyers, they do. But with technology, the question of whether a lawyer should office or not office is more a matter of personal business choice (just like decisions over whether to hire help or what to wear to court) rather than top-down ethical fiat.  As it should be.