Non-Resident Attorney Office Requirement Survives Constitutional Challenge

The Second Circuit, acting after receiving guidance from the New York State Court of Appeals, has rejected the assertion of a New Jersey attorney that New York’s “working office” requirement was unconstitutional.  In Schoenfeld v. Schneiderman, et al., 2016 WL 1612845 (2nd Cir. 2016), decided on April 22, 2016, a divided panel upheld the requirement of N.Y. Judiciary Law § 470 that a nonresident member of the state bar could only conduct the business of law in the State of New York if she had a physical office for the transaction of business within the State.  For now, the ruling clarifies the type of office needed to meet this requirement beyond merely having an address at which to receive service.

In Schoenfeld, the plaintiff was a resident and attorney of the State of New Jersey who had passed the New York bar and believed that the working office requirement was a violation of the Privileges and Immunities Clause of Constitution (U.S. Cons., art. IV, § 2) prohibiting discrimination by one State against the citizens of another State.  Plaintiff argued that, insofar as New York residents could fulfill the office requirement with a home office, it was discriminatory against non-resident attorneys who could not similarly practice law out of their homes.  After a judge in the Southern District of New York agreed, the New York Attorney General (“NYAG”) appealed the decision to the Second Circuit.  The NYAG argued that the no constitutional impediment should be found because (1) the office requirement could be met by having an address at which service could be made within the State and, (2) even if non-resident attorneys were treated differently, any burden was insubstantial and substantially related to the oversight of service of papers within the State.  Upon the filing of the appeal, in order to determine if there was a threshold constitutional question, the Second Circuit certified a question for the New York Court of Appeals to answer: what are the minimum requirements necessary to meet the working office requirement of Judiciary Law § 470?  In an opinion that tracked the history of the statute and its predecessors, the New York Court of Appeals determined that, since the original requirement that an office was needed for service of process concerns had been severed from later versions of § 470, the wording of the statute at present could only mean that a physical office located within the State of New York, and not just an address for service of papers, was required. Schoenfeld v. State of New York, et al., 25 N.Y.3d 22 (2015).

Having received the answer to its certified question, the Second Circuit then ruled, based on its interpretation of the U.S. Supreme Court opinion in McBurney v. Young, 133 S. Ct. 1709 (2013).  The Second Circuit held that, in the absence of any “protectionist” intent with respect to the passage of the original version of the statute, the mere fact that citizens of other states may be treated differently did not automatically result in a violation of the Privileges and Immunities Clause.  2016 WL 1612845, at *5.  With specific regard to Judiciary Law § 470, the Second Circuit found that the statute had been enacted to ensure that non-resident attorneys could practice in New York, not to protect New York attorneys from non-resident attorneys.  Thus, no protectionist intent was shown. Id., at *5 – *7.  The Second Circuit further noted that the working office requirement was not a substantial burden on a non-resident attorney’s ability to practice law. Id., at *8.  Indeed, the Second Circuit argued that plaintiff herself was seeking favoritism in light of her request to be freed from a restriction that applied to every member of the New York State Bar wishing to practice law in the State. Id., at *9.

Significantly, in dissent, a member of the panel noted his belief that the majority interpreted McBurney improperly to create a “protectionist intent” requirement not set by the U.S. Supreme Court. Id., at *12. The dissent further noted that the two step analysis of the statute required by law (Supreme Court of N. H. v. Piper, 470 U.S. 271 (1985)), demonstrated that there was no substantial reason for the discrimination, nor a substantial relationship between the statute and the State’s alleged objective. Id., at *14 – *16.  Thus, the dissent argued that N.Y. Judiciary Law § 470’s working office requirement was unconstitutional.

In sum, the issue seems far from settled.  The split in the panel, and the fact that a question of constitutional law is involved, makes the case a reasonable candidate for further review en banc, or possibly by the Supreme Court.  For the moment, however, the office requirement of N.Y. Judiciary Law § 470 has withstood a substantial challenge.