In his decision filed on September 7, 2011, Judge Kahn declared unconstitutional New York "office requirement" for out of state attorney - which was clearly anachronistic in our day and age of the Internet, and violated Privileges and Immunities clause of out-of-state attorneys who were licensed to practice in New York.
Let's say it again - New York ISSUES licenses to out of state attorneys, without requiring them to have offices in New York.
New York CHARGES money for those licenses, CHARGES money for continued legal education, but when it comes to actually exercise their rights to practice, it BURDENS out-of-state attorneys with additional requirements - to have a physical office within the state of New York, something the so-called "resident" attorneys are not required to do.
On April 22, 2015, the 2nd Circuit overruled Judge Kahn and claimed that the requirement of a physical office of the out-of-staters, which is not required from the "resident" attorneys is not a violation of Privileges and Immunities Clause, but instead that by asking the court to strike the office requirement targeting ONLY out-of-staters, out-of-staters are trying to create a "privileged situation" for themselves.
Go figure the logic.
The dissenting opinion (that starts on page 32 of the 2nd Circuit's decision made by the majority of just TWO judges who decided to uphold discrimination against 1/3 of New York State attorneys) judge Peter Hall picked up on that warped logic right away:
That's exactly right - Judiciary Law 470's office requirement was meant ONLY for out-of-state attorneys, which meant that the statute was discriminatory - and thus unconstitutional under Privileges and Immunities clause - ON ITS FACE.
Judge Hall further states that the majority acknowledged that the statute had "protectionist aims" that did not survive the required scrutiny, or in other words, that New York State government MEANT to discriminate against the out-of-state attorneys in order to protect the business of in-state attorneys:
Judge Hall recognized that the practice of law is a fundamental right - which means that additional protections and scrutiny are needed before the government can burden such a right:
The majority does not mention that the practice of law is a fundamental right by the way - you can word-search the decision, the words "fundamental right" (according to the U.S. Supreme Court's decision in Supreme Court of N.H. v Piper, 470 U.S. 274 (1985) ) are only contained in the dissent and in majority's footnotes describing the dissent.
As to the so-called "resident attorneys", such attorneys do no have to have an office.
The contrived reason for discrimination is the alleged amenability of in-state attorneys to service on their residential address.
That is simply not true.
Look up New York state attorneys with New York State P.O. Box addresses only - they do not have their residential addresses listed, so service upon their residential addresses is, naturally, not available.
I had an experience with Judiciary Law 470 while it was still deemed unconstitutional and while my license in New York was still not suspended.
I was NOT an "out of state attorney" because my residence remained in New York, even though I visited out of state, and even stayed for some time out of state.
Many New Yorkers have two residences - in Florida, for example, and in New York, and the "residency" requirements are not clearly defined, by the way, in Judiciary Law 470.
NYS AG Kenneth Gellhaus accused me, this past summer, of unauthorized practice of law because he claimed I had to, as a "non-resident attorney", and did not have the "required" physical office in New York to oppose a case he handled against my client.
In opposition, I, first, stated that Judiciary Law 470 at the time was unconstitutional because of Judge Kahn's decision.
Second, that I was at that time a resident attorney in New York, and did not have to have a physical office.
Third, even if an attorney has a P.O. Box outside of the State of New York to receive mail, that may not be used as proof of out-of-state residency, because the U.S. post offices do not have residency requirements to provide those P.O. Boxes anywhere, and my South Carolina P.O. Box was the only "proof" of my "non-residential status" that Mr. Gellhaus had.
And fourth - I asked Mr. Gellhaus to disclose his own personal RESIDENTIAL address, because that is the whole difference that is claimed to justify discrimination of Judiciary Law 470 - that "resident" attorneys may be served at their residential addresses.
I never got that residential address from Mr. Gellhaus, which shows how much worth are the arguments about amenability of "resident" attorneys to personal service in New York - exactly "zero".
Mr. Gellhaus was, by the way, the first person who notified me of suspension of my law license - I guess, he was very much interested in that event to occur and I wonder if he made sure that event would occur.
After all, both the disciplining court and the disciplining attorney grievance committee were both his clients.
So - now any discriminated "out of state" attorney who is licensed in New York can DEMAND to know
RESIDENTIAL ADDRESSES of the so-called "resident" attorneys to be able to serve them at their home, and
DEMAND that New York State must now REQUIRE "resident" attorneys to publish their residential addresses along with their office addresses or P.O. Boxes to make themselves "amenable" to personal service - as a matter of equal protection challenge, because the "resident" attorneys' status as living within the State of New York and amenable to personal service at their homes within the State of New York was the ONLY distinction made by the 2nd Circuit as to why discrimination against attorneys must exist.
So - did the 2nd Circuit's decision really protect the "resident" attorneys in New York?
Did it make them safer?
I don't think so.
The service issue is also a non-issue because by being licensed in New York, attorneys agree to service of process wherever they are.
No comments:
Post a Comment