Virtual Law Practice

Tag: residency requirements

  • NY’s Lawyer Residency Requirements Held Unconstitutional

    A couple weeks ago, I wrote a post for the NC Law Blog entitled “What Contact Information Must a Non-Traditional Law Firm Provide?“. The post discussed how more non-traditional law offices are opening up, many of them delivering legal services online, and how this is raising the question of how to comply with residency requirements, bona fide office rules and providing accessible contact information for a firm that may not have a physical office location in the jurisdiction to which the legal matter pertains. In the past, I’ve written about how residency requirements can be a barrier to entry for a virtual law practice: “Residency Requirements and the Virtual Law Practice.”

    Last week brought good news on this front.  A U.S. District Court Judge in the North District of New York issued an opinion finding that New York’s Judicial Code Section 470 (which creates a residency requirement for members of the NY Bar) infringed on an attorney’s right to practice NY law.  Section 470 was last reenacted in 1945 and hasn’t been changed since then. An overhaul was long overdue.

    In a nutshell, the court found New York’s residency requirement to be unconstitutional.  For a great summary of the opinion read Carolyn Elefant’s post and follow the link out to the full opinion. This decision comes down from the interesting case of Attorney Ekaterina Schoenefeld who filed a lawsuit against the State of New York claiming that by requiring an attorney to maintain a physical law office in the state, New York law discriminates unconstitutionally against attorneys who are out-of-state.

    What I most enjoyed about this opinion was the judge’s willingness to reconsider how we define accessibility in an age when almost all of us are connected online.  As long as the attorney is transparent about where he or she is actually located and working on the client’s legal matter, the question of the need for physical location within the jurisdiction should be based on the needs of the client, the case, and the surrounding circumstances.  As the opinion notes, it would have been more physically convenient for an attorney working in NJ to drive over to courthouse in NY City than it would be for an attorney in Buffalo to drive down. (page 18 of the opinion)

    Even if it is appealed to the Second Circuit, the fact that this issue has been brought to the forefront and reconsidered as a requirement for members of the NY Bar may prompt other states to revisit the effectiveness of their existing residency requirements. As more virtual law offices spring up across the country, it will continue to be a question they will need to address.

     

  • Another Opinion Related to Residency Requirements

    If you are keeping up with developments in the bona fide office rules or residency requirements of state bars that govern the practice of law, you might want to read through this recent opinion: In the Matter of the APPLICATION OF CARLTON, No. 10-mc-160 U.S. District Court D. Maryland (April 26, 2010).  I’ve only got the Westlaw citation for it: 2010 WL 1707722 (D.Md.).  I’ll link to it if it ever makes its way online into the zone of free research. 

    The attorney in this case worked from home in Massachusetts for a law firm based in the District of Columbia. She is licensed in the District of Columbia, but not in Massachusetts. The opinion held that her law practice is in D.C. even though she lives in MA and that she was not in violation of a Maryland local rule regarding “principal law office” location.  The opinion discusses the attorney’s use of technology to provide legal services online and collaborate with her firm in D.C. 

    This is another example of where elawyering is called into question because of outdated rules and regulations that do not take into consideration the methods now available to attorneys to ethically and responsibility provide services online.  At least the outcome is a positive one.  It’s worth a read if you keeping up with new development on this topic.

  • Residency Requirements and the Virtual Law Practice

    I’ve been reading with interest the case of Attorney Ekaterina Schoenefeld who filed a lawsuit against the State of New York claiming that by requiring an attorney to maintain a physical law office in the state, New York law discriminates unconstitutionally against attorneys who are out-of-state.  Schoenefeld is licensed in California, New York and New Jersey and claims she was not aware of NY’s residency requirement before taking and passing the NY Bar Exam.   Law.com has a detailed article on the case and Carolyn Elefant over at MyShingle.com wrote a rousing post in support of this solo attorney’s plight.

    I do not know if in the case of Schoenefeld the attorney was planning on operating a virtual law office, but her intent was clearly to provide legal services pertaining to the law of each of the states for which she obtained a law license. This is a similar situation faced by attorneys wanting to open virtual law offices.  They may choose to reside in a state in which they do not hold a law license or to provide legal services of one state while maintaining an office in another.  The technology allows them the flexibility to deliver legal services online and choose where they live and work.

    In my opinion, residency or physical office requirements, which exist for some state bars, are an example of an out-dated restriction on the legal profession that could use some updating to reflect changes in law practice management.  If you feel like reading up on some examples of residency requirements, see New York’s §470 of Judiciary Law, Missouri State Bar Informal Advisory Opinion Number 970098 regarding Rule 5.5;   Tolchin v. New Jersey Supreme Court, 111 F.3d 1099 (3d Cir. 1997); Lichtenstein v. Emerson, 674 N.Y.S.2d 298 (App. Div. 1998);  Parnell v. West Virginia Supreme Court of Appeals, 110 F.3d 1077 (4th Cir. 1997) or Mich. Comp. Laws Ann. § 600.946 (the attorney must show intent “either to maintain an office in this state for the practice of law, and to practice actively in this state, or to engage in the teaching of law”).

    These residency requirements focus on the attorney “actively practicing law within the state.”  How should this be interpreted if the attorney physically resides in one state and actively practices law from a virtual law office providing the legal services pertaining to the laws of another state?  He or she is actively practicing law, just not physically within the state.  Residency requirements make more sense to me when they are restricted to attorneys who are handling litigation in that state and will be expected to make court appearances.  But if they are drafting state law contracts and handling IP projects for NY clients while living in NJ or CA? 

    Does the attorney need to run a physical law office or reside in the state in which he or she practices law?  It probably depends on the attorney’s practice area and client base.  For those practices in which it does make good business sense, then the residency requirements place a significant burden on the attorney trying to startup a virtual law office that is located out-of-state.  It seems a very geo-centric and out-dated rule in a society that has become increasingly more global and interconnected through technology. 

    I’d love to hear others thoughts on residency requirements whether related to a completely virtual office or a traditional law practice that is integrating a virtual law office to expand into multiple jurisdictions.

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