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NY’s in-state office requirement is on its last legs

Stacked3Here is a recent Daily Record column. My past Daily Record articles can be accessed here.

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For years now, New York has steadfastly resisted the realities of practicing law in the 21st century by requiring non-resident lawyers to have an office in the state. This despite the fact that rapid technological advancements over the past decade have enabled lawyers to work from any location and access case-related information with the click of the button, at any time, day or night. Lawyers are no longer tethered to their offices and can practice law from just about anywhere using cloud-based tools. As we learned during the pandemic, brick and mortar offices are unnecessary and law firms can function - and even profit - with dispersed workforces operating remotely from their homes.

Nevertheless, lawyers licensed in New York and who reside elsewhere are still required to maintain physical office space in the state in order to practice law here. This mandate is imposed by Section 470 of the Judiciary Law, which has been challenged in court on a number of occasions, but still remains in effect.

Most recently, Section 470 was the focus of a recent ethics opinion issued by the New York State Bar Association: Ethics Opinion 1223. Notably, as you’ll learn below, this may very well be the last ethics opinion to address this law, since it will likely be repealed in the near future.

At issue in this opinion was whether “a New York lawyer (may) rent space to other lawyers as a nonlegal business, and provide them with facilities and equipment to operate their separate law practices…”

The Committee explained that for a lawyers licensed in New York who also reside in New York, having a non-permanent office does not trigger Section 470: “(A) New York lawyer may work out of his or her residence in New York, but not want to meet clients there or use a home address for business…(since) an office that the lawyer does not occupy full-time enables the lawyer, at relatively small expense, to meet both client needs and the lawyer’s own law practice management goals.”

However, according to the Committee, non-resident lawyers with a New York license who seek to take advantage of the office rental situation proposed by the inquiring attorney would need to ensure that the office arrangement meets the requirements of Section 470: “A non-resident attorney who is admitted to practice in New York and who practices New York law must have an office in New York that meets the minimum requirements of Section 470, but we express no opinion as to what Section 470 requires.”

In reaching this conclusion, the Committee highlighted a recent turn of events that indicated that Section 470 may very well be repealed in the near future by the passage of Senate Bill S700. The Committee explained that “(i)n January 2019, the New York State Bar Association adopted a resolution calling for the repeal of Section 470. The President of the Bar Association stated: ‘In a digital era where attorneys across the street and around the world are just a click away on their computer or smart phone, an antiquated rule from over a century ago requiring a physical office in the state no longer serves any purpose.’” 

And then in a footnote, the Committee noted that on the same day that this opinion was published “the New York State Senate adopted S700. The bill has been referred to the Assembly Judiciary and Rules Committees.”

As of the week of June 15th, the bill has been delivered to the Assembly and referred to the Judiciary.

So change is afoot, and at long last there is a very good chance that this antiquated requirement will be no more. Here’s to the steady march of progress, the rapid pace of technological innovation, and the impact of both on the practice of law. Change is often good - especially when it increases the ability of lawyers to practice law on their own terms and utilize technology to do it. I don’t know about you, but in this case I’m all for it.

NY’s in-state office requirement is on its last legs

 

Nicole Black is a Rochester, New York attorney, author, journalist, and the Legal Technology Evangelist at MyCase  law practice management software for small law firms. She is 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 Thomson Reuters treatise. She writes legal technology columns for Above the Law and ABA Journal and speaks regularly at conferences regarding the intersection of law and technology. You can follow her on Twitter at @nikiblack or email her at niki.black@mycase.com.