A Bill To Repeal Judiciary Law § 470 Introduced in New York State Assembly

NY Judiciary Law §470 has been introduced, which would repeal the law which states:

"Judiciary Law § 470 requires an attorney admitted to practice in New York who is not a New York resident to maintain an office in this state for the practice of law (see Kinder Morgan Energy Partners, LP v Ace Am. Ins. Co., 51 AD3d 580 [2008]; Lichtenstein v Emerson, 251 AD2d 64 [1998]). Failure of counsel to maintain a local office requires striking of a pleading served by such attorney, without prejudice (see Kinder Morgan, 51 AD3d at 580; Neal v Energy Transp. Group, 296 AD2d 339 [2002])."

In a world of internet access and pandemics, it makes sense to look at repealing this law, which may happen in the near future. A bill has been introduced in the State Assembly in May 2020 to do just that.

It's time.

Betsy Combier, 
betsy.combier@gmail.com
Editor, ADVOCATZ.com
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Legislation to Repeal Judiciary Law Section 470 Introduced in State Assembly

by Christian Nolan

A bill introduced this week in the state Assembly would repeal Judiciary Law Section 470, which requires lawyers admitted to practice in New York – but residing in other states – to maintain a physical law office in New York State.

Assemblyman David Weprin has sponsored the legislation that was introduced in the Assembly’s Judiciary Committee. A similar bill was introduced last year by State Senate Judiciary Committee Chair Brad Hoylman.

Nearly 25 percent of NYSBA members reside or practice outside the state of New York.

“In a digital era where attorneys across the street and around the world are just a click away on their computer or smart phone, an antiquated rule from over a century ago requiring a physical office in the state no longer serves any purpose,” said NYSBA President Hank Greenberg. “That is now more clear than ever with so many lawyers working remotely in the midst of the coronavirus pandemic.”

In January 2019, NYSBA’s House of Delegates approved a resolution calling for the outright repeal of the law and the report and recommendations of its Working Group on Judiciary Law §470, which was appointed in 2016 to address concerns from members.

The law was enacted in 1909 because the New York State Legislature believed at the time that a nonresident attorney without an office in New York would not be amenable to service of process.

In 2009, Ekaterina Schoenefeld, a New Jersey resident who was admitted to practice both in New York and New Jersey, challenged the constitutionality of the law in federal district court.

In Schoenefeld v. State of New York, the U.S. District Court of the Northern District of New York ruled in 2011 that Section 470 violates the Privileges and Immunities Clause of the U.S. Constitution. The state Attorney General appealed and during the appeal process in 2014, the U.S. Court of Appeals for the Second Circuit asked the state Court of Appeals to clarify the meaning of Section 470.

In a 2015 opinion written by then-Chief Judge Jonathan Lippman, the state Court of Appeals replied, “We hold that the statute requires nonresident attorneys to maintain a physical office in New York.”

By 2016, the Second Circuit upheld Section 470, holding that the statute did not violate the Privileges and Immunities Clause. Schoenefeld filed a petition for certiorari to the U.S. Supreme Court, which was denied in 2017.

A ruling in the NY Court of Appeals in February 2019 gave a new perspective:

No Office, No Problem: Court of Appeals Holds that Violation of Judiciary Law § 470’s “Physical Office” Requirement Does Not Render Action a Nullity, But Could Subject Attorney to Discipline

In a unanimous decision authored by Judge Michael Garcia, the Court of Appeals today resolved an important issue of first impression implicating multi-state practice in New York—“whether an action, such as filing a complaint, taken by a lawyer duly admitted to the bar of this State but without the required New York office is a nullity.”

In Arrowhead Capital Finance, Ltd. v Cheyne Specialty Finance Fund L.P., the Court held that the failure of a nonresident attorney to comply with the physical office requirement in Judiciary Law § 470 at the time an action is commenced does not render the action a nullity. The opinion resolved a split between the First Department, which has held that any action taken by a nonresident attorney who fails to maintain a physical office in New York as required under Judiciary Law § 470 is a nullity, and the Second and Third Departments, which have permitted nonresident attorneys to cure a Judiciary Law § 470 violation by obtaining an attorney with a New York office or by application for admission pro hac vice by appropriate counsel.

The Court noted that the rule adopted by the Second and Third Departments stems from its prior decision in Dunn v Eickhoff (35 NY2d 698, 699 [1974]) where it held that “[t]he disbarment of a lawyer creates no ‘nullities,’ the person involved simply loses all license to practice law.” The Court held that “given [its] holding in Dunn, it would be incongruous to conclude that, unlike the acts of a disbarred attorney, actions taken by an attorney admitted to the New York bar who has not satisfied Judiciary Law § 470’s office requirement are a nullity.” Thus, the Court adopted the Second and Third Department rule and concluded that “the party can cure the section 470 violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel.”

The Court, however, clarified that a Judiciary Law § 470 violation is not without consequences. The attorney who violates section 470 by practicing in the State without a physical office could face discipline. The court held that “[w]here further relief is warranted, the trial court has discretion to consider any resulting prejudice and fashion an appropriate remedy and the individual attorney may face disciplinary action for failure to comply with the statute.” “This approach,” the court concluded, “ensures that violations are appropriately addressed without disproportionately punishing an unwitting client for an attorney’s failure to comply with section 470.”

Important Practice Tip

Beyond clarifying the effect of a nonresident attorney’s violation of the physical office requirement in Judiciary Law § 470, the Court’s decision in Arrowhead includes a notable practice point that should not be overlooked.

In its motion for leave to appeal, Arrowhead limited its appeal “to the extent that the Appellate Division failed to reverse and remand the Order and Judgment of Supreme Court dismissing [its] Complaint as a ‘nullity’” for the Judiciary Law § 470 violation. The Judiciary Law § 470 dismissal, however, only related to the breach of contract and fiduciary duty claims that survived Defendant’s first motion to dismiss. By limiting its appeal to the distinct Judiciary Law § 470 issue, and not appealing the dismissal of its other claims, Arrowhead precluded the Court from reviewing the propriety of Defendant’s first motion to dismiss (see Quain v Buzzetta Constr. Corp, 69 NY2d 376, 380 [1987]). Thus, the Court granted defendant’s motion to strike the portion of Arrowhead’s brief addressed to defendant’s first motion to dismiss.

It is unclear whether Arrowhead’s decision to limit the appeal was strategic. Certainly, crystalizing an issue of first impression doesn’t hurt a party’s chances of having its motion for leave to appeal granted. But, by limiting the appeal, you give up other issues that could have otherwise been raised. Attorneys should be wary of the Court’s rule in Quain and only limit their appeals if they are willing to relinquish their rights to challenge other issues in the case.

And one more thing. The Court would do well to explain the practical impacts of its decisions to the parties and the bar in general in as plain of terms as possible. Here, the Court’s decretal paragraph reads:



To aid the parties and trial court, adding a clarifying clause to the decretal saying expressly that only the claims dismissed for the Judiciary Law § 470 violation remain to be litigated on remand would go a long way. Although this may appear straightforward in this case, many times the Court’s decisions on jurisdiction and reviewability leave parties scratching their heads about what to do next to fix the issues. The Court should try to help address those issues in its decisions to the best it can.

The Court of Appeals’ opinion can be found here.

 Another Stern Reminder re: Judiciary Law § 470 is Alive and Well

By Farrell Fritz P.C. on March 1, 2018

Posted in Motions

Frequent readers of this blog may recall my post from the end of last year in which I highlighted a decision of the Appellate Division, First Department affirming a decision of New York County Commercial Division Justice Shirley Werner Kornreich, that examined the application of Judiciary Law § 470.  For those needing a refresher, Judiciary Law § 470 provides that an attorney residing in “an adjoining state” may practice New York – without moving for pro hac admission – only if  both (I) admitted in New York and, (ii) more crucially to the Arrowhead Capital decision, maintains a physical law office in New York. In Arrowhead Capital, the Appellate Division affirmed Justice Kornreich’s dismissal of the plaintiff’s complaint due entirely to its non-resident lawyer’s failure, in violation of Judiciary Law § 470, to maintain an office in New York. 

Proving that this is not nearly as esoteric an issue as you might think is Platinum Rapid Funding Group, Ltd. v H D W of Raliegh, Inc., a recent decision out of the Nassau County Supreme Court (Hon. Jerome C. Murphy). While not a Commercial Division decision, Platinum Rapid Funding is valuable to readers of this blog for its additional analysis of Judiciary Law § 470. Before the Court in Platinum Rapid Funding was the plaintiff’s motion brought pursuant to Judiciary Law § 470, seeking disqualification of defendants’ counsel (the firm of Higbee & Associates [“Higbee”] and lawyer Rayminh L. Ngo [“Ngo”]) for failing to maintain an office for the transaction of law in New York, and dismissing the defendants’ counterclaims and affirmative defenses on the same basis. The court’s holding that defendants’ counsel did not maintain a physical office in the State of New York at the time they appeared in the action, relied on the following evidentiary findings:

1. The defendants’ Verified Answer identified the principal office for Higbee as being in Santa Ana, California;
2. Ngo identified himself not as an associate or partner of Higbee, but as the principal of his own law practice based in Salt Lake City, Utah;
3. While Ngo asserted in opposition that he is duly admitted to practice in New York and was serving of counsel to Higbee, which he claimed was a “multijurisdictional law firm based in California” that purportedly leases office space on Wall Street and in Syracuse, neither Ngo nor Higbee asserted that there were attorneys or law firm staff in either location;
4. The lease agreements subsequently submitted by Ngo as proof of the two New York office locations failed to establish that they were maintained by Higbee at the time Ngo and Higbee appeared in the action; and
5. The court “[could not] overlook the fact that the defendants . . . failed to offer any competing evidence against the sworn affidavits of . . . process servers who attest[ed] that they physically went to [the Wall Street and Syracuse] addresses . . . and confirmed that neither Ngo nor Higbee had physical offices at th[ose] locations.”

The court further instructed that disqualification under these circumstances is not permissively left to the court’s discretion, but rather a finding that counsel’s violation of Judiciary Law § 470 mandates immediate disqualification from continued representation in the action.  Platinum Rapid Funding offers another stern reminder to non-resident lawyers attempting to practice in New York State courts: be sure to maintain a physical office in New York at the time you first appear in a given action or else be prepared to be disqualified.

Tags: Disqualification, in-state office, Judiciary Law § 470, out-of-state attorney