Solo Practice

Attorneys Defending Bar Requirements Say that Lawyer Must Violate Them To Bring a Challenge

By Carolyn Elefant

Princeton, New Jersey based solo, Ekaterina Schoenefeld did what every good lawyer is supposed to do:  she abided her state bar's ethics rules even though doing so cost her financially.   Though duly licensed in New York, Schoenefeld couldn't practice there.  That's because New York Judiciary Code section 470 requires non-resident, New York barred lawyers like Schoenfeld to maintain a New York office to serve New York clients.  The office requirement applies only to non-resident, New York barred lawyers; those who reside in New York are not subject to the office requirement. 

Lacking a New York office, Schoenefeld dutifully turned down business from prospective New York clients to comply with bar rules.  But because Schoenfeld was paying $350 a year to maintain a bar license that she couldn't use, she challenged New York's law in federal court, arguing that it violated the Privileges and Immunities Clause and Fourteenth Amendment of the United States Constitution.

But no good deed goes unpunished.  Instead of getting praise from the Committee on Professional Responsibility and judiciary for complying with an unfair law, the Committee and Judiciary, represented by the New York States' Attorney, moved to dismiss the case, arguing that it wasn't yet ripe because Schoenefeld hadn't violated the law.  As such, the defendants characterized Schoenfeld's case as a mere "academic exercise."

I realize that in litigation, lawyers need to raise these kinds of procedural arguments for strategic reasons.  Even so, should disciplinary committees adopt a litigation position that attorneys must violate the law as a prerequisite to challenging it --especially when the chance of prevailing on this line of argument is slim to none?

Moreover, let's consider what would have happened had Schoenefeld decided to engage in a little civil disobedience.  According to the New York Law Journal, the state attorney general can bring misdemeanor charges for violations of §470 as well as seeking treble damages, such as triple the fees that an out-of-state lawyer may have charged while practicing law in New York without having an office.  And we all know that once lawyers violate the law, they're vulnerable to ethics charges for unprofessional conduct.  Thus, even if Schoenefeld was prosecuted and successfully challenged§470, her law license might still be in jeopardy for having violated the statute to begin with.

Happily, Northern District Court judge Laurence Kahn concluded that Schoenfeld didn't need to violate Section 470 to challenge it.  Kahn found that Schoenfeld's loss of business and desire to abide by the law gave rise to a real controversy ripe for review by the court.  Meanwhile, Kahn also denied Defendants' motion to dismiss Schoenefeld's privileges and immunities claim, which means that her case will move forward.

Congrats to Ekaterina Schoenefeld for doing the right thing and obeying the law, even if the Disciplinary Committee would have had you do otherwise.  And good luck in the next phase of the case - MyShingle is rooting for you!

Full post as published by My Shingle.com on February 15, 2010 (boomark / email).