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What Century Are We Living In? – The Second Circuit Seems To Think It's the Nineteenth

The United States Court of Appeals for the Second Circuit recently held that members of the New York bar residing out-of-state can be constitutionally required to have a physical office within the state, reversing the U.S. District Court for the Northern District of New York's decision finding otherwise. Given the realities of law practice in 2016, how does this make sense?

When Thomas Jefferson became President in 1801, the fastest means of communication on land was on horseback. If the United States Court of Appeals for the Second Circuit (the “Circuit Court”) is to be believed, nothing whatever has changed in the intervening centuries. In this column we consider the Circuit Court’s decision in Schoenefeld v. Schneiderman 11-4283-cv, decided April 22, 2016, and the advisory opinion from the New York Court of Appeals (in Schoenefeld v State of New York, 25 N.Y.3d 22 (2015)), which the Circuit Court had requested – and we contrast the outcome with the reality of law practice in the 21st Century.

The question for the Court was whether a requirement that members of the New York bar residing out-of-state can be constitutionally required to have a physical office within the state when lawyers resident in the state are not subject to that requirement. What is the sense of such a requirement in the era when lawyers – be they solo practitioners like the plaintiff here, or lawyers in giant law firms – connect to their offices, their clients and adversaries, and the rest of the world, remotely, from wherever they may be physically located at any moment in time? The U.S. District Court for the Northern District of New York gave the plaintiff the declaration that she sought, finding that the requirement is indeed unconstitutional, having in mind the realities of law practice in 2016.

Before the Circuit Court decided the appeal, the Court certified, and the New York Court of Appeals (the “Court of Appeals”) accepted the following question: “Under New York Judiciary Law § 470, which mandates that a nonresident attorney maintain an ‘office for the transaction of law business’ within the state of New York, what are the minimum requirements necessary to satisfy that mandate?” Although in its opinion the Court of Appeals was evidently constrained in the way it was able to respond given the way in which the question was framed, it is hard to read the opinion without concluding that the Court of Appeals was expressing a clear plea to the Circuit Court to uphold the decision of the U.S. District Court. Nevertheless, the Circuit Court set aside the decision of the District Court and held the requirement to be constitutional. The closest that the Circuit Court comes to addressing the realities of how law is practiced in the 21st Century is to find that the plaintiff “fails to show that the burden on a nonresident of maintaining an office in New York is greater than the burden on a resident of maintaining a home (and frequently a home and office) in New York. In any event, the Privileges and Immunities Clause ‘does not promise nonresidents that it will be as easy for [them] as for residents to comply with a state’s law (citation omitted).’”

In a spirited, but carefully reasoned dissent, Circuit Judge Hall concludes 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.”

At root, the problem with this decision is not just that it places an undue burden on New York lawyers who choose to live out-of-state, but rather that the decision – and even to some degree, the dissent – are rooted in a failure to recognize the ways in which technology has changed how lawyers today actually practice law. Forgetting the intervening inventions of the railway and the airplane, the advent of the internet has made regulation of lawyers based on the assumption that that the fastest means of communication is still on the back of a horse nothing less than ridiculous.

While in our era of political gridlock obtaining relief from the legislature may be a wish easier to express than to accomplish, perhaps it is more fruitful to look there than to the judiciary to recognize how the world has changed – for lawyers as for everyone else.