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Media Alerts - Schoenefeld v. State of New York, et al. - Second Circuit
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April 9, 2014
  Schoenefeld v. State of New York, et al. - Second Circuit
Headline: Second Circuit Suggests that New York Law Requiring Nonresident Attorneys to Maintain an Office in New York to Practice in New York Courts Could Violate Privileges and Immunities Clause of U.S. Constitution and Certifies Question to New York Court of Appeals for Resolution of Determinative Issue

Area of Law: Constitutional

Issue(s) Presented: Whether a New York State law requiring attorneys who are admitted to practice in New York but reside out of state to maintain an office for the transaction of law business in New York violates the Privileges and Immunities Clause of the United States Constitution

Brief Summary: Plaintiff-appellee, Ekaterina Schoenefeld, is a lawyer admitted to practice law in both New York and New Jersey and maintains her residence and law office in New Jersey. Schoenefeld brought an action suing the State of New York, among others, challenging the constitutionality of New York Judiciary Law § 470 ("Section 470"). Section 470 requires nonresident attorneys to maintain an "office for the transaction of law business" in New York in order to practice law in New York courts. Schoenefeld argued that this law violates the Privileges and Immunities Clause of the United States Constitution by infringing upon her fundamental right to practice law. The defendants argued that the office requirement in Section 470 might be satisfied with something less than maintenance of a physical office in New York and therefore does not treat New York and out-of-state attorneys differently and, in the alternative, even if it does, it imposes "an incidental burden" that is substantially related to adequate state interests. The United States Court of Appeals for the Second Circuit found that the office requirement appears to implicate the Privileges and Immunities Clause, however, certified to the New York Court of Appeals the question of "what minimum requirements are necessary to satisfy th[e] mandate" in Section 470 that nonresident attorneys keep an "office for the transaction of law business."

To read the full opinion, please visit: http://www.ca2.uscourts.gov/de...2b08e637b2d/2/hilite/

Extended Summary: Plaintiff-appellee, Ekaterina Schoenefeld is a solo practitioner licensed to practice law in New Jersey and maintains her residence and law office in Princeton, New Jersey. She is also licensed to practice law in the State of New York and claims that on occasion prospective clients have requested that she represent them in New York state courts. Schoenefeld, however, has refused these occasional requests because she believes that her representation of clients in New York state courts would violate New York Judiciary Law § 470 ("Section 470").

New York Judiciary Law § 470 ("Section 470") provides that "[a] person, regularly admitted to practice as an attorney and counselor, 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 counselor, although he resides in an adjoining state." In other words, Section 470 appears to prohibit attorneys that do not reside in New York from practicing law in New York state courts unless they also have an "office for the transaction of law business within the state," which Schoenefeld did not have. Schoenefeld brought an action in the Southern District of New York, arguing that Section 470 was unconstitutional under the Privileges and Immunities Clause, the Equal Protection Clause and the Commerce Clause. The case was subsequently transferred to the Northern District of New York, which held that Section 470 violated the Privileges and Immunities Clause and granted Schoenefeld's cross-motion for summary judgment.

The Second Circuit began by discussing the protection afforded under the Privileges and Immunities Clause. Under the clause, citizens in each state are entitled to "all Privileges and Immunities of Citizens in the several States." According to the Second Circuit, the right to practice law is one such privilege protected under the Clause and, therefore, plaintiff could prevail if she could demonstrate that New York has, in fact, discriminated against nonresident attorneys with regard to this privilege that it accords its own citizens. To then defeat this showing, New York has to demonstrate: "a substantial reason for the discrimination, and [] a reasonable relationship between the degree of discrimination exacted and the danger sought to be averted by enactment of the discriminatory statute." In its analysis, the Second Circuit suggested that the Section 470 "office for transacting business within the state" requirement implicates the Privileges and Immunities Clause because there is no New York law requiring in-state attorneys to maintain an office in New York.

The defendants argued that Section 470 can be read in a manner that does not implicate the Privileges and Immunities Clause. According the defendants, the only requirement imposed by Section 470's language "an office for the transaction of law business" is an address for accepting personal service and simply designating an agent for the service of legal papers could satisfy this requirement." The Second Circuit noted, though, that the New York Supreme Court and its Appellate Division courts have never interpreted the Section 470 "office for the transaction of business" requirement to be satisfied by something less than the maintenance of physical office space in New York. Moreover, because the New York Court of Appeals has never before interpreted the Section 470 office requirement, the Second Circuit found it could not predict how the Court of Appeals would resolve the issue. Concluding that this issue is important to the state, would require value judgments and public policy choices, and is determinative of the plaintiff's claim, the Second Circuit chose to certify the question to the New York Court of Appeals. The specific question certified is as follows: "Under New York Judiciary Law § 470, which mandates that a nonresident attorney maintain an "office for the transaction of law business" within the state of New York, what are the minimum requirements necessary to satisfy that mandate?"

To read the full opinion, please visit:
http://www.ca2.uscourts.gov/de...2b08e637b2d/2/hilite/


Panel: Circuit Judges Raggi, Hall and Carney

Argument Date: 10/3/2012

Date of Issued Opinion: 4/8/2014

Docket Number: No. 11-4283-cv

Decided: Certified Question to New York Court of Appeals

Case Alert Author(s): Christopher Roma

Counsel: Ekaterina Schoenefeld, for Plaintiff-Appellee; Laura Etlinger, Assistant Solicitor General, for Defendants-Appellants

Author of Opinion: Circuit Judge Hall

Case Alert Circuit Supervisor: Elyse Diamond Moskowitz

    Posted By: Elyse Diamond @ 04/09/2014 07:55 AM     2nd Circuit  

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