Court of Appeals on bona fide office requirement

Nicole Black, The Daily Record Newswire

As the practice of law changes and technology makes it easier than ever to practice law from anywhere, states are being forced to grapple with the issue of virtual lawyers and the bona fide office requirement that exists in many states. This rule requires that lawyers have a physical office in the state in which they would like to practice.

So lawyers with virtual practices who live in, for example, New Jersey, but are registered in New York and would like to represent New York clients, are forbidden from doing so unless they rent or own physical office space in New York.

Many believe that this requirement is antiquated in light of new technologies that change the way that lawyers can deliver legal services. Advocates of the rule contend that it is necessary for a number of reasons - among them to protect legal consumers and to ensure that lawyers registered in New York state can be easily served with judicial process.

New York's bona fide office rule recently came into question in Schoenefeld v. State of New York, 25 N.Y.3d 22. In this case, the United States Court of Appeals for the Second Circuit certified the following question to the New York Court of Appeals: What are the minimum requirements a lawyer must satisfy in order to meet the statutory directive that nonresident attorneys must maintain an office within the state "for the transaction of law business" under Judiciary Law § 470?

The plaintiff in this case asserted that the bona fide office provision could be interpreted to simply "require nonresident attorneys to have some type of physical presence for the receipt of service - either an address or the appointment of an agent within the state."

In reaching its decision, the Court of Appeals considered the legislative history and purpose of the statute along with case precedent. The court explained that contrary to the plaintiff's contention, the rule was not promulgated solely to provide an address for the service of process: "(E)ven if one wanted to interpret the term 'office' loosely to mean someplace that an attorney can receive service, the additional phrase 'for the transaction of law business' makes this interpretation much less plausible. Indeed, the Appellate Division departments have generally interpreted the statute as requiring a nonresident attorney to maintain a physical office space."

Accordingly, the court concluded that the clear language of the statute required "nonresident attorneys to maintain a physical office in New York." The court explained that it was declining to re-write the rule and instead deferred to the legislature to "take any additional action deemed necessary."

I think the court made the right decision given the plain language of the statute, but do hope that the legislature addresses this issue soon. The impact of technology on the practice of law and on the delivery of legal services is undeniable.

The legal landscape is changing and the recent decision in Washington state to allow limited license legal technicians to advise clients on certain areas of the law is just one more example of this. The innovative use of technology to streamline and reduce the costs of legal services is key competing in an increasingly crowded legal marketplace and lawyers failing to do so may very well be left in the dust.

Providing virtual legal services is one obvious way for lawyers to reduce overhead and overall costs. If New York lawyers are prevented by the operation of an antiquated statute from providing low-cost transactional legal services to a population in need of them then many of these potential clients will turn to websites that provide low cost wills and forms directly to the consumer. New York lawyers will be left out of the equation. I'm quite sure that's a result that no one wants. So here's to hoping that the legislature sees the light and revises New York's bona fide office rule.

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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book "Cloud Computing for Lawyers," coauthors the ABA book "Social Media for Lawyers: the Next Frontier," and co-authors "Criminal Law in New York," a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@mycase.com.

Published: Wed, Apr 29, 2015

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