Section 470 of the Judiciary Law states that “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.” The effect of this “permission” actually is restrictive, because no one admitted to the New York Bar may practice law here without a physical office. The statute was challenged on constitutional grounds in Schoenfeld v. New York (907 F.Supp.2d 252, 266 [N.D.N.Y 2011]).

In Schoenfeld, a New Jersey resident sued on several constitutional theories, and the U.S. District Court for the Northern District of New York initially held Section 470 unconstitutional for violating the privileges and immunities clause of the U.S. Constitution. That clause guarantees citizens of sister states the right to do business in the home state on terms substantially equal to citizens of the home state, and it has been held that the practice of law is a fundamental right within the meaning of that clause. (Good news on that score, see United Building and & Construction Trades Council of Camden County & Vicinity v. Mayor and Council of Camden, 464 U.S. 208, 219 [1984]). Is the Section 470 requirement of a physical office an unnecessary burden that disadvantages nonresident-admitted attorneys without advancing a substantial state interest?

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