United States: Not Just A New York State Of Mind: Nonresident Lawyers Must Have A Physical Office In New York

On Friday, the United States Court of Appeals for the Second Circuit struck a blow to nonresident lawyers looking to practice in New York State. The Second Circuit ruled that Section 470 of New York State's Judiciary Law ("Section 470"), which requires nonresident lawyers to have a physical office in New York, does not violate the United States Constitution. The Second Circuit's decision comes as a surprise to many who were following the constitutional challenge, including us, when we reported on the case in a previous alert and predicted the Second Circuit would find, as the District Court had, that Section 470 violated the Privileges and Immunities Clause.

As it turns out, the reports of Section 470's imminent demise were grossly exaggerated. Here's what actually happened.

Some Background on Section 470

For a variety of reasons, many lawyers seek to practice in New York without having a physical office here. Some lawyers choose to practice "virtually" - conducting their business primarily over the Internet, rather than through a physical office - while other lawyers are simply located in neighboring states but are duly licensed to practice in New York. Whatever the reason, each has had to wrestle with Section 470, which requires all nonresident lawyers who practice in New York to maintain an "office for the transaction of law business" within the state.

Historically, the primary enforcement mechanism for Section 470 has been through motions to dismiss at the trial court level, based on an attorney's failure to maintain a physical office in New York. Until last year, however, New York State's highest court had not ruled on whether a bona fide physical office was required to comply with Section 470, or if something less, such as a post office box or agent for service of process, would satisfy the requirement.

The Constitutional Challenge to Section 470: Schoenefeld v. State of New York

Ekaterina Schoenefeld is a New Jersey resident who is licensed to practice law in both New York and New Jersey. She maintains an office in New Jersey, but not in New York. In April 2009, Ms. Schoenefeld filed an action in federal court challenging the constitutionality of Section 470. She argued that the physical office requirement violated the Privileges and Immunities Clause, which guarantees that the citizens of each state will be placed "upon the same footing with citizens of other States." Ms. Schoenefeld's position is that Section 470 treats out-of-state lawyers differently than resident lawyers, who are not subject to a law office requirement and, thus, can practice out of their homes. The U.S. District Court for the Northern District of New York agreed with Ms. Schoenefeld, and held Section 470 violated the Privileges and Immunities Clause.

On appeal, the Second Circuit concluded that the constitutionality of Section 470 depended on the definition of an "office for the transaction of law business" within the statute. Observing that New York State's highest court had never ruled on that issue, the Second Circuit certified the question to the New York Court of Appeals. Responding to the certified question, the Court of Appeals ruled that Section 470 contained a physical office requirement, not merely an address for service of process. As indicated above, this ruling was viewed as the harbinger of death for Section 470, since it was generally believed that the Second Circuit would strike down a physical law office requirement.

The Second Circuit's Constitutionality Ruling

More than a year after receiving its answer from the Court of Appeals, the Second Circuit issued a 31-page decision, ruling that Section 470 "does not violate the Privileges and Immunities Clause because it was not enacted for the protectionist purpose of favoring New York residents in their ability to practice law." Rather, the Opinion states, Section 470 was enacted to permit nonresident lawyers to practice in the state, by allowing them to establish a physical presence in New York and, thus, a place where they can receive service of process. It is Ms. Schoenefeld, the Court opines, who seeks to be treated differently from New York lawyers who already have a physical presence in New York.

The Opinion was accompanied by a 25-page dissent from Judge Hall, which begins with a blistering attack on the ruling: "The majority holds that a New York state statute that discriminates, on its face, against nonresident attorneys - burdening them with the expense of maintaining an office in New York while exempting resident attorneys from the same requirement - does not offend the Privileges and Immunities Clause . . . because, in the majority's view, the plaintiff has failed to prove that the statute evinces a 'protectionist' intent." (emphasis added). The Dissent observes that the majority's holding improperly shifts the burden away from the state to provide a sufficient justification for laws that discriminate on their face against nonresidents. The Dissent notes that, although New York state's justifications for requiring a physical law office might have made sense in 1862 when the statute was enacted, they are no longer relevant in an age that offers numerous methods for service on nonresident attorneys, including "mail, overnight delivery, fax and (where permitted) email."

Opponents of Section 470 argue that its strict office requirement is inconsistent with the recent trend (both in New York and elsewhere) in favor of multijurisdictional practice. It is also out-of-step with recent ethics opinions from both the New York City and New York State Bar Associations, which conclude that lawyers are permitted under New York's ethics rules to use virtual law offices. Nonetheless, until the New York legislature or the United States Supreme Court say otherwise, nonresident lawyers wishing to practice in New York will first need to physically set up shop in the state.


This alert provides general coverage of its subject area. We provide it with the understanding that Frankfurt Kurnit Klein & Selz is not engaged herein in rendering legal advice, and shall not be liable for any damages resulting from any error, inaccuracy, or omission. Our attorneys practice law only in jurisdictions in which they are properly authorized to do so. We do not seek to represent clients in other jurisdictions.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Similar Articles
Relevancy Powered by MondaqAI
In association with
Related Topics
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions