The Second Circuit was asked a pretty straightforward question: why should an attorney admitted to practice law in New York and New Jersey, but whose primary practice is in the Petroleum State, be required to have a physical office in New York? The claim was that it violated the Privileges and Immunities Clause of the Constitution, art. IV, § 2, which putatively allows residents of one state to enjoy the rights given residents of another state. Because, we’re all Americans, right?

The court held that New York Judiciary Law § 470 was not unconstitutional.  Well, of course not, and for a bunch of good reasons, like the ability to effect personal service on an attorney who just ruined your life because of incompetence, or to retrieve your file when the lawyer took your money then did no work on your case or failed to appear in court. Lots of good reasons. Tons of them. Except those weren’t the reasons upon which the court ruled.

Instead, the basis for the court’s conclusion was:

As this history demonstrates, the in‐state office requirement was not enacted for the protectionist purpose of burdening nonresident attorneys in practicing law in New York.  Rather, it was enacted to ensure that every licensed New York lawyer, whether a state resident or not, could practice in the state by providing a means for the nonresident attorney to establish a physical presence in the state (and therefore place for service) akin to that of a resident attorney.  A statute enacted for such a nonprotectionist purpose is not vulnerable to a Privileges and Immunities challenge.

Huh? Providing a “means”? As in, dear lawyer, you can rent an office! You’re welcome.

Judiciary Law § 470 provides:

A person, regularly admitted to practice as an attorney and counsellor, in the courts of record of this state, whose office for the transaction of law business is within the state, may practice as such attorney or counsellor, although he resides in an adjoining state.

Putting aside the question of dubious taste in that the lawyer resides in an adjoining state, this applies to a lawyer who is admitted to practice law in New York, and is theoretically just as qualified as any New York lawyer. There is no issue of competency involved.

The problem begins with the fact that the law was initially tied to service of process, back when a guy would hop on his horse to deliver papers to the lawyer when his client was sufficiently pissed. But in time, the issue of service was separated, and the law provided that non-resident lawyers designated the clerk of the judicial department to accept service on the lawyer’s behalf. Problem solved! So much for the service issue.

The next level of problem arises from the Supreme Court’s 2013 holding in McBurney v. Young, which limited the scope of the privileges and immunities clause.

 A court necessarily conducts these inquiries in light of the Supreme Court’s recent admonition that constitutionally protected privileges and immunities are burdened “only when [challenged] laws were enacted for [a] protectionist purpose.”

This is a huge limitation on the clause. Essentially, if a state can manufacture a reason to make outsiders jump through needless hoops, other than flagrant protectionism of their own residents at the expense of others, the clause doesn’t apply.* Fabricating an excuse is a fairly easy trick, but more importantly, the notion that we can cross state lines and still enjoy the rights we hold dear as Americans is a pretty fundamental value. It’s not that states shouldn’t be entitled to control their own jurisdictions, but that the burdens ought to have a far more serious basis than mere “not protectionist.”

Even so, the Second Circuit couldn’t manage to eke out a sound justification. It’s not that there aren’t good reasons. There are. But by acknowledging what the good reasons are, it gives rise to finding solutions that would enable a lawyer from an adjoining state to practice law in New York without any risk to their clients.

Ironically, the rationale used by the circuit, that the law provides a means for out-of-state lawyers to practice in New York, is primarily protectionist for New York commercial landlords. Of course, telling lawyers that the answer is rent a friggin office is nonsensical. The law states that they need an in-state office for the transaction of law business, as if that’s the means rather than the conclusion. It’s just silly.

And to the extent this effort by the circuit to come up with something that passes the smell test isn’t bad enough, this is the sort of rationale that gives rise to those clamoring for problematic change, such as virtual offices, to have greater merit.  The days of hopping on your horse are gone. We can send something overnight to pretty much anywhere in America, so effecting service really isn’t a problem anymore. We can reach out to people anywhere, whether by phone or computer, at any time of the day or night. The barriers that existed a couple hundred years ago are gone.

There remains one issue that a local office addresses, which is when a client retains a lawyer who “disappears” on him and can’t be reached. He doesn’t answer the phone. He doesn’t return emails. He’s essentially vanished. Does this happen all the time? Beats me, but it does happen, and clients deserve the ability to physically find their lawyer when they can’t be reached any other way.

Clients need a physical location to go to, whether to demand the return of their file or to stare the lawyer in the eyes and call him mean names.  After all, if the lawyer fails to perform the functions required of him, it’s the client’s rights lost. You can’t blame a client for not wanting his case blown because his licensed attorney turned out to be a scheming mutt. When everything falls to shit, the client needs a means to deal with the incompetent, recalcitrant, disappeared lawyer.

But that’s not the reason the circuit upheld Judiciary Law § 470. Because lawyers couldn’t figure out the “means” of having a physical office without a law telling them so. Right. Totally legit.

*Consider the application to another Privileges and Immunities Clause issue, the ability to carry a licensed firearm into another state. In one state, it’s completely lawful. In the next state, it’s a crime carrying a prison sentence. Same person, same gun, same fundamental constitutional right to possess it. The only thing standing between them is three years in prison. Go figure.