Follow Up – New York State Legislature is One Step Closer to Repealing Judiciary Law 470, Which Requires New York Lawyers That Live Out of State to Maintain a Physical Office in New York State

• Posted on: Apr 30 2021

Judiciary Law 470, which, in its present form, was passed in 1909, but has its origins to the time when President Lincoln was in office, provides:

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.

This Blog has addresses Judiciary Law 470 [HERE], [HERE] and [HERE].  Our July 3, 2018, Blog post, “Out Of State Attorneys Admitted In New York, Cannot Rely On New York Virtual Offices If They Intend To Practice In New York,” addressed the need for an attorney admitted to practice law in New York, but who resides outside of the State, to maintain a physical office within the State in order to practice law in the State.  The Blog highlighted case-law holding that the in-state office requirement is not satisfied by maintaining a “virtual” office in New York.  

In our follow-up Blog posted on January 2, 2019, we reported that one of the cases discussed in the July 3 Blog, Arrowhead Capital Finance v. Cheyne Specialty Finance Fund, 154 A.D.3d 523 (1st Dep’t 2017), was scheduled for oral argument before the New York Court of Appeals.  The First Department in Arrowhead, affirmed the dismissal, without prejudice, of the action because it was commenced by a non-resident attorney without an office in New York and “[p]laintiff’s subsequent retention of co-counsel with an in-state office did not cure the violation since the commencement of the action in violation of Judiciary Law § 470 was a nullity.”  The Court of Appeals rendered a decision on February 14, 2019, in which it reversed the harsh rule established by the First Department and held that a “violation of Judiciary Law § 470 does not render the actions taken by the attorney involved a nullity [and, i]nstead, the party may cure the section 470 violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel” (citation omitted).  

Earlier this year, bills were introduced in the New York State Assembly (A. 5895) and Senate (S. 700) to repeal Judiciary Law 470.  On April 27, 2021, the New York State Bar Association issued a press release in which it reported that “[t]he State Senate Judiciary Committee voted this afternoon to advance NYSBA-backed legislation that would repeal the controversial Judiciary Law Section 470….”  Regarding the potential repeal of Judiciary Law Section 470, NYSBA President Scott M. Karson said:

In our rapidly modernizing legal world, the profession has adapted with electronic filing of documents in the courts, virtual conferences and court proceedings, along with already established standards for perfecting service. Our laws must continue to adapt with the times too.

Judiciary Law Section 470 places an onerous burden on rural and underserved communities and limits the availability of legal services simply because of where an attorney chooses to call home….  The association will continue to advocate for its repeal and thanks the legislature for moving the bill one step closer to enactment.

Similarly, the NYSBA’s Memorandum in Support, which refers to the statute as “outdated,” argues that:

The repeal of this requirement first enacted when the horse and buggy was a primary mode of transportation is similarly unsuited to the needs of New Yorkers in rural communities. Rural communities have an imminent crisis as only 4% of New York licensed attorneys serve rural communities with nearly 75% of those practitioners expected to retire in the next 10-30 years. By eliminating this onerous requirement, these New Yorkers will be able to make use of a population of attorneys that would otherwise be available to them but for this antiquated and unnecessary law. 

Lastly, it is important for the State to be prepared for the changes to the practice of law because of the COVID-19 pandemic.  Attorneys who had no issue with maintaining a physical office location are now experiencing disruptions to their practices. The office space they use may no longer available, they have restructured to a remote work environment, or they have relocated out of the State for a variety of professional or personal reasons to meet our rapidly evolving world. Repealing this antiquated law will allow New York licensed attorneys to continue representing New Yorkers without disruption to their practices.

This Blog will continue to follow, and report on, the pending legislation as it progresses through the New York State Legislature.

TAKEAWAY

Advances in technology have made it easier for lawyers to practice law outside of the traditional “brick and mortar” office scenario that has predominated the profession for centuries.  The virtues of remote and/or virtual workspaces has only been highlighted by the dramatic changes to almostt all work environments occasioned by the need for rapid adaptation to the impact of the COVID-19 pandemic.