NY Court of Appeals on bona fide office requirement
Wisconsin weighs in on the ethics of cloud computing

New York State Bar on virtual law practices

Stacked3This week's Daily Record column is entitled "New York State Bar on virtual law practices."  My past Daily Record articles can be accessed here.



New York State Bar on virtual law practices  



Last week I discussed Schoenefeld v. State of New York, 25 N.Y.3d 22. In that case, the New York Court of Appeals interpreted the bona fide office rule as it relates to New York lawyers seeking to practice law from a virtual office, where the lawyer is located outside of the state. The court concluded that the clear language of New York’s bona fide office rule required “nonresident attorneys to maintain a physical office in New York.”

Shortly after that decision was handed down, the New York State Bar Association Committee on Professional Ethics examined the ethical obligations of an attorney licensed to practice law in New York but who was seeking to practice law from a virtual law office while residing in Virginia. In Opinion 1054 (April 10, 2015) the committee addressed this issue: “May a lawyer admitted only in New York and Pennsylvania practice in the federal courts in Virginia and before the Administrative Board of Veterans Affairs from a ‘virtual office’ in Virginia?”

The focus of the committee’s analysis revolved around choice of law issues and the circumstances under which the Virginia ethical rules would control the attorney’s conduct as opposed to the New York rules. After reviewing the facts and relevant law, the committee concluded that “the inquirer is deemed ‘licensed to practice’ in Virginia, and the New York disciplinary authorities would ordinarily apply the Virginia Rules of Professional Conduct to his conduct.”

Accordingly, he was permitted to operate a virtual practice in Virginia since “the Virginia State Bar Association ha(d) opined that he may practice from an office address in Virginia, as long as he limits his practice to federal court, and indicates on his letterhead, business cards and website that he is licensed to practice law only in New York and Pennsylvania.”

However, the committee noted that because he was practicing from a location in Virginia, his ability to solicit New York legal clients was necessarily limited by the New York rules regarding virtual practices and the requirement that New York lawyers have a bona fide office within the state. The committee explained that in its prior opinion, 1025 (2014), it concluded that New York courts have long held that Judiciary Law §470 requires attorneys who practice, but do not live, in New York, to have an office here.

The committee then referred to the Schoenefeld case from last month and opined: “Assuming the inquirer is soliciting business from New York residents, the inquirer must comply with various duties imposed by the Rules, see N.Y. State 1025 (2014) (listing duties under various Rules, and noting that there is no “virtual law office exception” to any of the Rules).”

However, the committee noted that after the New York Court of Appeals issued its decision in Schoenefeld, the matter was returned to the Second Circuit Court of Appeals for its determination as to the constitutionality of Judiciary Law §470. Obviously the outcome of that case may affect the status of the bona fide office requirement and the committee’s future conclusions in that regard.

So stay tuned, folks. In due time, the ability of New York-licensed attorneys to operate virtual law practices serving New York clients may change. But for now, an office within New York continues to be required.

Nicole Black is a Rochester, New York attorney and the Legal Technology Evangelist at MyCase, intuitive web-based law practice management software for the modern law firm. She is also the author of the ABA book Cloud Computing for Lawyers, co-authors the ABA book Social Media for Lawyers: the Next Frontier, and co-authors Criminal Law in New York, a West-Thomson treatise. She is the founder of lawtechTalk.com and speaks regularly at conferences regarding the intersection of law and technology. She publishes four legal blogs and can be reached at niki@mycase.com.