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Schoenefeld v. Schneiderman

By Pia Katerina Tempongko

It is easy for attorneys to have their practices not only in their home states, but also in another or several states. In an analysis of the Constitution in Schoenefeld v. Schneiderman, guidance is provided as to how interpret laws that affect non-citizens who wish to engage in trade in a particular state.

The plaintiff, Ekaterina Schoenefeld, is a citizen and resident of Princeton, New Jersey, and licensed to practice law in New Jersey, New York, and California. She maintains an office solely in New Jersey. The plaintiff states that while attending a continuing legal education course entitled "Starting Your Own Practice", she learned that under N.Y. Judiciary Law Section 470, non-citizen attorneys may not practice law in New York without maintaining an office located in that State. (Schoenefeld v. New York 907 F.Supp.2d 252 (2011)). Schoenefeld claims that she has declined representing clients in New York so as not to violate Section 470, which states that: "A person, regularly admitted to practice as an attorney and counselor in the courts of record of this state, whose office for the transaction of law or business is within the state, may practice as such attorney or counselor, although he resides in an adjoining state."

The plaintiff sought a judicial declaration that the office requirement for non-citizens violated the Constitution's Privileges and Immunities Clause by infringing the right to practice law in New York. The district court agreed, and declared Section 470 unconstitutional.

On appeal, the Second District certified the following question to the New York Court of Appeals: "Under New York Judiciary Law Section 470, which mandates that a non-citizen attorney maintain an "office for the transaction of law business" within the state of New York, what are the minimum requirements necessary to satisfy that mandate?"

The Court of Appeals held that Section 470 requires non-citizen attorneys to maintain physical offices in New York. The Court observed that the statute presupposes a residency requirement in order to practice law in New York, with the exception of allowing non-citizen admitted attorneys to practice law if they maintain an office for the transaction of law business in New York. The Court of Appeals also acknowledged legitimate state interest by alleviating logistical difficulties when it comes to service of process.

The Second District reversed the district court, and based its decision based on the principles of the Privileges and Immunities Clause, as discussed in the case of McBurney v. Young (133 S. Ct. 1709, 1715 (2013)). The Privileges and Immunities Clause states that: "the Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States." (U.S. Const. art. IV, SECTION 2, cl.1.)

The Court held that the Constitutional Clause did not demand that a non-citizen enjoy the privileges and immunities he or she has in his or her state of residence to another state. Rather, the Clause demands that the non-citizen be afforded the same privileges and immunities that a citizen enjoys in any state. The purpose of this Clause was to prevent any State from discriminating against citizens of any other States in favor of its own (Baldwin v. Fish & Game Comm'n of Mont. 436 U.S. 371, 382 (1978)).

However, the Privileges and Immunities Clause is not absolute in the sense that it doesn't have to always apply all its laws and services to its citizens and non-citizens equally. For a challenge under this Clause to survive, the plaintiff must demonstrate that the State has burdened non-citizen activity that is sufficiently basic to the livelihood of the U.S. as to fall within the purview of the Privileges and Immunities Clause (Supreme Court of Va. v. Friedman, 487 U.S. at 59, 65 (1988)). Constitutionally protected privileges and immunities are burdened only when challenged laws were enacted for a protectionist purpose (McBurney v. Young). The protectionist purpose, and not disparate effects alone, pertains to the advantage that a State provides to its citizens when passing these laws. The State may defend itself by emphasizing that a substantial reason exists for the discrimination and the degree of discrimination bears a sufficiently close relation to such reason (Supreme Court of Va. v. Friedman).

In this case, the Court ruled that the facial distinction between citizens and non-citizens was not sufficient to admit an inference of protectionist purpose in light of statutory text and legislative history (Circuit Judge Hall in his dissent, however, found the statute discriminatory on its face, and said that therefore no other threshold showing of discriminatory intent was required). The statute originated in 1862 from Chapter 43, a predecessor law. Chapter 43 stated that a non-citizen attorney could practice law in New York as long as he maintained an office in the state as an accepted site for service. Chapter 43 was not enacted for the protectionist purpose of burdening non-citizen attorneys practicing law in New York; rather, it was enacted as a means for non-citizens to establish physical presence in the State (place for service of process) like that of citizen attorneys. Chapter 43 was later on codified as Section 60 of the New York's Code of Civil Procedure, and a later recodification split Section 60 into two - with the service part remaining at Section 60, and the office requirement becoming Section 470. The courts observed that the new section maintained the original purpose and remains a means for ensuring service.

The Court ruled that Schoenefeld did not produce evidence that Section 470 was meant to offer some economic advantage to citizen New York attorneys. Section 470 was meant to place citizen attorneys and non-citizen attorneys on an equal footing. A plaintiff must point to more than a failure to amend or repeal a statute enacted for a nonprotectionist purpose to demonstrate that the law was meant to have a protectionist purpose. Schoenefeld mentioned a ban on non-citizen attorneys that was invalidated in 1979. Her argument failed because she was not burdened by the ban, due to its previous invalidation. Furthermore, Section 470 was meant to be an exception to the ban. The fact that a non-citizen attorney has to establish his or her presence by leasing an office while a citizen attorney can use his or her residence does not unduly burden the non-citizen attorney. The Court pointed out that the expense of leasing a New York office is less than owning a New York home, and Schoenefeld did not offer any evidence that a majority of New York attorneys practiced at home. Schoenefeld also contended that Section 470 was unconstitutional because by applying the statute, she was required to incur costs of a New York office when she was already incurring the costs of an office in New Jersey. The Court ruled that this argument was flawed, because her New Jersey cost was not a product of a New York law. McBurney states that the Privileges and Immunities Clause does not promise non-citizens that it will be as easy for them as for citizens to comply with a state's law, but it promises only that the state laws will not differentiate for the protectionist purpose of favoring citizens at the expense of non-citizens. In essence, the Court observed that the plaintiff sought to practice law on different terms specifically without maintaining a physical presence.

The Court concluded that state laws only violate the Privilege and Immunities Clause when those laws are enacted for the protectionist purpose of burdening non-citizens. Section 470 was not enacted for a protectionist purpose, but as a means for non-citizens to establish presence in New York through service. The Court therefore reversed the district court's judgment invalidating Section 470.

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This page contains a single entry from the blog posted on June 4, 2016 10:36 AM.

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