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Media Alerts - Schoenefeld v. Schneiderman
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April 25, 2016
  Schoenefeld v. Schneiderman
Headline: Second Circuit Upholds New York's Requirement That Nonresident Members of the Bar Maintain a Physical Office Within New York State

Area of Law: Constitutional

Issue Presented: Whether a New York law requiring nonresident members of the bar to maintain a New York State office for the "transaction of law business" violates the Privileges and Immunities Clause of the U.S. Constitution.

Brief Summary: Plaintiff-appellee Ekaterina Schoenefeld--a New Jersey resident who is licensed to practice law in New York but lacks a home or physical office in the state--argued that a New York state law requiring nonresident attorneys to maintain a physical office within the state violated the United States Constitution's Privileges and Immunities Clause. She pointed out that attorneys who are residents of New York can satisfy this requirement merely by practicing from their homes, while nonresidents are forced to incur the costs of a New York office. She prevailed in the Northern District of New York, but on appeal, the Second Circuit reversed. The court explained that the requirement did not violate the Privileges and Immunities Clause because it had not been enacted for the protectionist purpose of burdening out-of-state citizens, but instead for the nonprotectionist purpose of ensuring that all licensed New York attorneys had a physical presence in the state to receive process.

To read the full opinion, please visit a3fbe6bf14ce/1/ doc/11-4283_complete_opn.pdf#xml=

Extended Summary: The plaintiff-appellee, Ekaterina Schoenefeld, is a resident of New Jersey and is licensed to practice law in New Jersey, New York, and California. She maintains an office in New Jersey, but not in New York. Schoenefeld has declined requests to represent clients before New York state courts specifically to avoid violating New York Judiciary Law § 470. This statute provides that nonresident members of the New York bar are required to maintain a physical "office for the transaction of law business" within the state. Schoenefeld argued that the office requirement imposed by § 470 on nonresident members of the New York bar violates the Privileges and Immunities Clause of the United States Constitution, which states that "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several states," and is intended to place citizens of each state upon equal footing. Here, Schoenefeld argued, the New York requirement burdens nonresidents' right to practice law in New York, because resident attorneys of the state are not required to have offices distinct from their homes, but nonresident attorneys are.

Schoenefeld prevailed in the Northern District of New York, which declared § 470 unconstitutional. On appeal, New York State Attorney General Eric Schneiderman, on behalf of the defendants, initially argued that there was no Privileges and Immunities Clause concern because § 470's office requirement could be interpreted to only require an address in the state for accepting personal service. The Second Circuit certified the question of how to interpret the statute to the New York Court of Appeals, which held that a physical office was required, and that a mere mailing address was insufficient.

Given that conclusion, the Second Circuit proceeded to analyze whether the physical office requirement was, in fact, unconstitutional. The court explained that under the Supreme Court's most recent decision interpreting the Privileges and Immunities Clause, the key question is whether a challenged state law was enacted for the protectionist purpose of burdening out-of-state citizens. The Second Circuit concluded that § 470 was not enacted for the protectionist purpose of favoring New York residents in their ability to practice law, or, conversely, of burdening nonresident attorneys practicing in the state. Rather, the court explained, § 470 was initially enacted to avoid service of process concerns, by ensuring that all licensed attorneys in the state had a physical presence on which process could be served. The court acknowledged that the "requirement is now largely vestigial as a means for ensuring process," given further developments in New York procedure, but explained that "the fact remains that the law was enacted for [a] nonprotectionist purpose, and Schoenefeld has adduced no evidence of a protectionist intent to afford some economic advantage to resident New York lawyers."

The court added that the law was being applied equally to New Yorkers and non-New Yorkers: every attorney admitted to the New York bar needed a physical presence in the state. Moreover, there was no evidence that significant numbers of New York attorneys were practicing from their homes rather than their offices.

Judge Hall dissented, concluding that the majority had misinterpreted the Supreme Court as requiring evidence of a protectionist intent for purposes of a successful Privileges and Immunities challenge. He asserted that New York "has chosen to discriminate against nonresident attorneys with regard to their right to pursue a common calling, and it has failed to provide a substantial justification for that discrimination."

Panel: Judges Raggi, Hall, and Carney.

Argument: 06/04/2015

Date of Issued Opinion: 04/22/2016

Docket Number: 11¿4283¿cv

Decided: Reversed and Remanded

Case Alert Author: Steven Manganelli

Counsel: Schoenefeld Law Firm, LLC, Princeton, New Jersey, pro se, for the plaintiff-
appellee. Laura Etlinger, Assistant Solicitor General (Barbara D. Underwood, Solicitor General; Andrea Oser, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, Albany, New York, for Defendants¿Appellants. David B. Rubin, Esq., Metuchen, New Jersey, for Amicus Curiae The New Jersey State Bar Association, in support of Plaintiff¿ Appellee. Leah M. Nicholls, Brian Wolfman, Institute for Public Representation, Washington, D.C., for Amici Curiae New York¿ Licensed Nonresident Attorneys, in support of Plaintiff¿Appellee.

Author of Opinion: Judge Raggi (majority); Judge Hall (dissent)

Case Alert Circuit Supervisor: Emily Gold Waldman

    Posted By: Emily Waldman @ 04/25/2016 02:10 PM     2nd Circuit  

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