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Schoenefeld v. Schneiderman

By Jeshica Patel posted 03-21-2017 03:57 PM

  

A New York law states “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”[1] The law is very straightforward, and means if you live in a neighboring state, you have to have an office in New York in order to practice here. A New Jersey attorney filed suit against the state in 2009, stating that the law “violates the U.S. Constitution's Privileges and Immunities Clause, which prohibits a state from discriminating against residents of another state.”[2] A federal court in New York, in 2011, struck down the statute, finding that it was overly burdensome on attorneys who practice in multiple states.[3] After the state appealed, the New York Court of Appeals, the highest court, ruled that an attorney must have a physical office in New York in order to practice here.[4] Most recently, last year, the Second Circuit ruled that “the law does not violate the Privileges and Immunities Clause, because the mandate was not enacted to favor New York attorneys over lawyers from other states.”[5] Interestingly, in as strong dissent, Judge Hall states that “The State of 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.”[6]

Schoenefeld has now asked the Supreme Court of the United States to take the case, however the Attorney General of New York’s office has requested that the Court reject the petition for certiorari.[7] The AG’s office claims that the requirement of physical office is not meant to burden those not in the state, but merely happens incidentally.[8] Since many attorneys practice in New York from neighboring states, this should be an interesting case to follow.

[1] N.Y. Judiciary Law § 470 (McKinney 2016).

[2] Matthew Guarnaccia, NY Nonresident Atty Law Not Protectionist, High Court Told, Law360 (Mar. 17, 2017) https://www.law360.com/newyork/articles/903285/ny-nonresident-atty-law-not-protectionist-high-court-told?nl_pk=a59569d4-92c1-4a9d-8224-6d0f96dba04b&utm_source=newsletter&utm_medium=email&utm_campaign=newyork.

[3] Id.

[4] Id.

[5] Id.

[6] Schoenefeld v. Schneiderman, 821 F.3d 273, 296 (2d Cir. 2016).

[7] Id.

[8] Id.

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