New York Case

As I was considering opening my own firm, I attended a CLE seminar, entitled Starting Your Own Practice, that was offered by the New York State Bar Association where I learned for the first time about § 470 of the Judiciary Law. According to that statute—although I am a licensed New York attorney in good standing—I cannot practice in the state courts of New York unless I have an office there only because I am not a resident of the State of New York.

That neither made sense nor did it sound right to me. The courts have long held that one’s residency cannot be a prerequisite for an admission to the bar of the state and that federal courts may not require an attorney to maintain an office in the state where a district court is located. (Good news – I can practice in all four U.S. District Courts of New York!)

After I opened my firm in October 2007 and did some research, I decided to challenge the constitutionality of § 470 of the Judiciary Law. On April 1, 2008, I filed a complaint in the Southern District of New York seeking declaratory and injunctive relief on the grounds that Judiciary Law § 470 was unconstitutional under the Privileges and Immunities Clause of the U.S. Constitution. I subsequently amended the complaint to include additional defendants and two more counts – under the Commerce Clause and the Equal Protection Clause.

On October 1, 2008, the defendants moved to dismiss my lawsuit for improper venue or, in the alternative, to transfer it to the Northern District of New York. Despite my opposition and having considered the defendants’ reply, on April 16, 2009, Judge Buchwald issued her Memorandum and Order, granting the defendants’ motion to transfer the case to the Northern District of New York.

On June 16, 2009, the defendants moved to dismiss my complaint for failure to state a claim upon which relief can be granted and on the ripeness grounds. I filed my opposition on August 28, 2009 and the defendants filed their reply on September 23, 2009. On February 8, 2010, Judge Kahn issued his Memorandum-Decision and Order, dismissing some of the defendants and the latter two counts, but allowing me to proceed against the remaining defendants under the Privileges and Immunities Clause.

By not limiting admission to its bar only to the graduates of the ABA-accredited law schools and by providing for admission based on reciprocity, New York is one of the largest bars in the United States, with many New York licensed attorneys residing in other states and foreign countries. And, frequently serving as a forum for cross-border dispute resolution, New York plays a significant role in both the domestic and international legal communities.

Thus, I believe that the lawsuit seeking to stop enforcement of Judiciary Law § 470 is important and affects many attorneys in the United States and in other countries. Indeed, even at this stage, it gained some notoriety in the legal community after Judge Kahn’s decision (e.g., ABA Journal, Law.Com, MyShingle) and I often hear from other attorneys expressing their support and offering their assistance.

On September 7, 2011, the district court issued its Memorandum-Decision and Order, granting my motion for summary judgment. A copy of the parties’ legal briefs can be found here:

• Plaintiff’s Memorandum of Law in Support of Motion for Summary Judgment, defendants’ Memorandum of Law in Opposition, and plaintiff’s Memorandum of Law in Reply
• Defendants’ Memorandum of Law in Support of Motion for Summary Judgment, plaintiff’s Memorandum of Law in Opposition, and defendants’ Memorandum of Law in Reply

On October 5, 2011, the defendants filed a notice of appeal. On January 18, 2012, the defendants-appellants filed their appellate brief. On April 17, 2012, the appellee brief was filed. The defendants filed their reply brief on May 22, 2012.

In addition, two amicus briefs were filed in support of the district court’s decision granting summary judgment in my favor: one amicus brief by the New Jersey State Bar Association and another amicus brief by the Institute for Public Representation – Georgetown University Law Center. The oral argument was held on October 3, 2012.

On April 8, 2014, the U.S. Court of Appeals for the Second Circuit issued a non-dispositive opinion, in which it certified to the New York Court of Appeals the following question:

Under New York Judiciary Law § 470, which mandates that a nonresident attorney maintain and “office for the transaction of law business” within the state of New York, what are the minimum requirements necessary to satisfy that mandate?

On May 6, 2014, the New York Court of Appeals accepted the certified question and set forth a briefing schedule. On September 29, 2014, the defendants-appellants filed their appellate brief. On December 1, 2014, I filed the respondent’s brief. The defendants-appellants’ reply brief was filed on January 12, 2015. Two amicus briefs in support of my position, one by the Institute for Public Representation – Georgetown University Law Center and another one by Ronald B. McGuire, Esq., were submitted as well; defendants-respondents replied on January 30, 2015. The oral argument was held on February 17, 2015. (The webcast of the oral argument can be viewed here.) On March 31, the New York Court of Appeals issued its opinion, agreeing with my arguments that Section 470’s term “office for the transaction of law business” means nothing less than an actual, physical office.

As requested by the Second Circuit, on May 1, 2015, the defendants-appellants and respondent-appellee submitted additional briefs. On June 4, 2015, the supplemental oral argument was held.

On April 22, 2016, the U.S. Court of Appeals for the Second Circuit – in a divided panel opinion – reversed the district court’s decision on the grounds that the plaintiff failed to demonstrate the state’s discriminatory intent in enacting the statute.  Judge Hall dissented in a separate, strongly-worded opinion.

On May 6, 2016, I filed a petition for rehearing en banc.  The Association of Corporate Counsel and the New Jersey State Bar Association filed their respective amicus curiae briefs in support of my petition for rehearing en banc, a copy of which can be found here and here.  On July 28, 2016, my petition was denied by the Second Circuit.

On December 16, 2016, my Petition for a Writ of Certiorari was filed with the U.S. Supreme Court.  On January 17, 2017, the respondents filed their notice of appearance and a waiver of their right to respond.  Three amicus curiae briefs were also filed in support of my Petition for Writ of Certiorari: by the Association of Professional Responsibility Lawyers, the Association of Corporate Counsel, and the New Jersey State Bar Association.

On February 8, 2017, The U.S. Supreme Court requested that the respondents file their opposition by March 10, 2017, which they did (a copy can be found here). On March 22, 2017, I filed my reply brief to the respondents’ brief in opposition.

On April 17, 2017, the U.S. Supreme Court denied my petition for a writ of certiorari.