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.
Margaret A. Keavney
I am also convinced it comes from not keeping up with advances in technology. As many others have pointed out, unless a client lives in the dead center of a large state, a lawyer with an office in a different state may be close and convenient if a physical meeting is needed. But physical meetings may not be needed, or the client may prefer to meet at his home, hospital room, or office. It is arbitrary to use state lines and location of office to determine who is competent to practice law. In Schoenefeld’s case, her office is closer to some New Yorkers than an office in Albany would be, for example.
Nice piece!! I will following this very closely. If I stumble across any insights from the WV Bar, I will definitely let you know.
Some of this originates with the lawyers also. Originally NJ as I understand it adopted the bona fide office rule to keep out of state lawyers from competing with in state lawyers for the same business, thus it goes beyond issues of just technology. The guiding force at the time was competition because certain technologies were non-existant at the time.