Ekaterina Schoenefeld, who took on the State of New York, and won.
A federal judge has struck down the long-standing rule that out-of-state attorneys licensed in New York must maintain an office here. In a decision dated Wednesday, September 9, Senior Federal Judge Lawrence Kahn, sitting in the Northern District of New York, said that New York Judiciary Law 470 was unconstitutional. The effect of this ruling is that out-of-state lawyers are no longer to hang a shingle here in order to practice here, representing a boon to solo practitioners that work from homes and small offices on shoe-string budgets.
After discussing the long history and changing requirements of New York law over the last 139 years — which started with the requirement that lawyers must actually live in New York in order to practice here — the Court ruled that even with all the changes such that now residency was no longer required, the law could not pass constitutional muster as it violated the Privileges and Immunities Clause of the Constitution. The law, Judge Kahn wrote, provided an extra and discriminatory burden on attorneys that live out of state, and the State did not have a “substantial interest” in having the statute. He wrote that “Section 470’s requirement that nonresident attorneys maintain an office in-state implicates the fundamental right to practice law under the Privileges and Immunities Clause.”
Judiciary Law Rule 470 sets forth:
“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.”
All of the States defenses were found wanting. This included
The action, brought by Ekaterina Schoenefeld by New Jersey. She persuasively argued that “New York resident attorneys may practice law out of their basements,” while “nonresidents are required to rent offices in New York (no matters how few in number their New York clients may be) in addition to maintaining offices and residences in their home states.”
The action is entitled Schoenefeld v. State of New York, with the decision at that link.
The Court’s conclusion:
Defendants have failed to establish either a substantial state interest advanced by Section 470, or a substantial relationship between the statute and that interest, the Court concludes as a matter of law that it infringes on nonresident attorneys’ right to practice law in violation of the Privileges and Immunities Clause.
In February 2010, Carolyn Elefant discussed the case at My Shingle in its earlier phase when the defendants attempted to have the case dismissed: Attorneys Defending Bar Requirements Say that Lawyer Must Violate Them To Bring a Challenge. And she has an update yesterday: A Solo Fought the Law and the Solo Won! NY Jud. Code 470 Found Unconstitutional!