Is your own LICENSED New York State attorney, or your LICENSED opposing counsel, AUTHORIZED TO PRACTICE LAW in the State of New York?

 A stupid question, right?

Not so fast.

What I say next, I hate to say as a scholar on the issue of constitutionality of ANY attorney regulation, who believes that such regulation is totally and completely constitutional - and who believes that the law I am describing is unconstitutional, too, on many grounds.

What I do say though is that, since the law I am describing here is on the books in the State of New York, and so far has survived constitutional challenges in court and even an attempt to repeal the law through the New York State Legislature, people should be aware of this law to prevent the expense of having their attorney disqualified in the middle of a court proceeding.

It is statutory law in the State of New York, Judiciary Law Section 470, requiring that if an attorney licensed to practice law in the State of New York lives outside of the State of New York, that attorney MUST maintain a PHYSICAL OFFICE within the State of New York, and not a token office, but a real physical office meant for transacting law business.

As recently as in 2015 and 2016, a constitutional challenge to that law by a New Jersey attorney licensed in New York State was rejected by both the New York State Court of Appeals (Schoenefeld v State, 2015), and by the U.S. Court of Appeals for the 2nd Circuit (Schoenefeld v Schneiderman, 2016).

The lobby of the (rich suburban New Jersey) non-resident New York-licensed attorneys has then pushed through the New York State Legislature, through both Assembly and Senate, the repeal of Judiciary Law 470.

Yet, apparently, the lobby of the no less rich resident New York-licensed attorneys have gotten to Governor Hochul, and she has nixed (vetoed) the law that passed both the Assembly and the Senate, to the great indignation of the New York State Bar Association.

So, the bona fide physical office law is on the books, and nonresident attorneys licensed to practice law in the State of New York must abide by it.

Not abiding by it is a crime of misdemeanor in New York, unauthorized practice of law (UPL), punishable for one count of either drafting a document, or a court appearance, or filing something in court on behalf of a client while not being in compliance with the office requirement.

The kickers are though that 

(1) New York State official attorney directory does not list whether the attorney is a resident or a non-resident of the State of New York; and

(2) if you FOIL (file a Freedom of Information request with the NYS Court Administration) for the residential address of the attorney - because the office requirement of Judiciary Law 470 was justified by New York State law, CPLR 2103(b)(4), which allows to serve papers upon an attorney's residential address (home) within the State of New York, so a party to a lawsuit is entitled to know that address of the opposing counsel to be able to serve court papers there - such FOILs are routinely denied on a claim that unless you demonstrate "a particular need" for such an address, such an address is private.

So, short of hiring a private investigator to verify whether the attorney lives, or verifying that address by other legal means, you will certainly not learn from the court administration the deep secret - whether attorneys that the court administration itself LICENSES, but BARS from practicing law nevertheless unless they have a BONA FIDE PHYSICAL OFFICE within the State IF they DO NOT RESIDE in the State of New York, are in violation of that rule or not.

In other words, the New York State Court system deliberately prevents consumers from knowing whether the attorney they are hiring or opposing in court (unless the party knows the attorney locally and knows where he or she lives for certain) does or does not have authority (do not confuse it with a license, under Judiciary Law 470 a LICENSED attorney may not have AUTHORITY to practice law in the State of New York) to practice law.

If you hire such an attorney, he or she may not charge you any legal fee - and you may end up losing such an attorney when his or her lack of authority is revealed in court, because, as per CPLR 321(c ) such a lack of authority constitutes a legal "disability" of the lawyer requiring the court to stay (stop) anything the court is doing in a case and force the party who hired such a lawyer to hire somebody else - and that may be impossible in terms of money or other reasons.

If you oppose such an attorney, in addition to forcing the opposing party to replace that attorney with an attorney who has authority to practice law, you will need to deal with the aftermath of what that attorney has so far done against you in court, with agreement of the judge.

My personal opinion - which I do not impose upon anybody else, and this is certainly not a legal advice of any kind - is to stick to the text of the statutory law, CPLR 321(c ) that states:

"Death, removal or disability of attorney.  If an attorney dies, becomes physically or mentally incapacitated, or is removed, suspended or otherwise becomes disabled at any time before judgment, no further proceeding shall be taken in the action against the party for whom he appeared, without leave of the court, until thirty days after notice to appoint another attorney has been served upon that party either personally or in such manner as the court directs".

Moreover, in 2010, the New York State Court of Appeals has interpreted CPLR 321(c ) in the case Moray v Koven & Krause Esqs in 2010 by stating that 

(1) the stay imposed by disability of an attorney (including the legal disability) is AUTOMATIC and is imposed by operation of law as of the date of onset of the lawyer's disability, which is important, because imposition of an automatic stay does not require the party to engage in any motions and to ask the court for any permissions - the party simply informs the court of the lawyer's disability and the date of its onset, and the court is STOPPED BY LAW from proceeding any further; and

(2) violation of the rule of stay, CPLR 321(c ) is to be addressed by a motion to vacate - so the Court of Appeals has given parties a direct prompt as to what to do if the court does not want to follow the rule of stay, to file, as of right, a motion to vacate for lack of the court's authority to do so, that would be CPLR 5015(a)(4).

So, if I were (and I am) a litigant in a New York court case, I would be vigilant as to whether the opposing counsel does or does not have AUTHORITY (do not confuse, again, with a license) to practice law in the State of New York, and the first thing to do that is to verify, BY LEGAL MEANS, the home address of such an attorney.

There are additional problems with authority to practice if the opposing counsel is a law firm, since lawfully REGISTERED law firms may still lack AUTHORITY to transact any business in New York, including the business they were created to transact, the practice of law, if they have FAILED TO DO SOMETHING REQUIRED OF THEM BY LAW AFTER THE REGISTRATION.

If you are interested in this topic, stay tuned, I will cover it in one of the next blog articles, so, please, stay tuned.

As always, I will be glad for comments of the public on the issues raised in this article.