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Posted: February 14, 2019

A Lawyer’s Failure to Have an Office in New York Does Not Doom Cases Filed by That Lawyer

On February 14, 2019, the Court of Appeals issued a decision in Arrowhead Capital Fin., Ltd. v. Cheyne Specialty Fin. Fund L.P., 2019 NY Slip Op. 01124, holding that a lawyer’s failure to have an office in New York does not render void actions filed by that lawyer, explaining:

An attorney who is 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 residing in an adjoining state. This statute, first enacted in 1862, requires that nonresident attorneys maintain a physical office in New York in order to practice law here. Whether an action, such as filing a complaint, taken by a lawyer duly admitted to the bar of this State but without the required New York office, is a nullity is an issue of first impression for this Court. Arrowhead contends that this Court’s holding in Dunn v Eickhoff, that the disbarment of a lawyer creates no nullities,’ the person involved simply loses all license to practice law, is dispositive. If an action of a disbarred lawyer is not a nullity, Arrowhead argues, neither is an action taken by a duly admitted attorney who fails to maintain a physical office in New York. This is essentially the approach taken by the Second and Third Departments, which have expressly rejected the nullity rule. These courts, relying on our holding in Dunn, have extrapolated a general rule, namely, given that representation of a party by a person who was not authorized or admitted to practice law under the Judiciary Law — whether a disbarred attorney or a person practicing law without a license — does not create a nullity or render all prior proceedings void per se, then the same principle should apply when a party is represented by an attorney who, although a member in good standing of the Bar of State of New York, has failed to demonstrate compliance with Judiciary Law § 470. Instead, these courts have held that a party may cure a section 470 violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel.

Defendants counter that Dunn involved plaintiffs’ affirmative use of the disbarment of their own attorney for strategic reasons and should therefore not control the present case. Instead, defendants urge us to adopt the First Department’s approach, which requires that a court dismiss the complaint without prejudice after finding a section 470 violation. Without such a deterrent, defendants argue, Judiciary Law § 470 would itself be a nullity.

We agree with the Second and Third Departments that, given our holding in Dunn, it would be incongruous to conclude that, unlike the acts of a disbarred attorney, actions taken by an attorney duly admitted to the New York bar who has not satisfied Judiciary Law § 470’s office requirement are a nullity. We therefore hold that a violation of Judiciary Law § 470 does not render the actions taken by the attorney involved a nullity. Instead, the party may cure the section 470 violation with the appearance of compliant counsel or an application for admission pro hac vice by appropriate counsel. Where further relief is warranted, the trial court has discretion to consider any resulting prejudice and fashion an appropriate remedy. This approach ensures that violations are appropriately addressed without disproportionately punishing an unwitting client for an attorney’s failure to comply with section 470.

(Internal quotations and citations omitted) (emphasis added).

The practice of law in New York is subject to various regulations, including the rule discussed here, which requires an attorney regularly admitted in New York to maintain an office in New York. The question here is whether a breach of that rule makes a lawsuit filed by a lawyer a nullity. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client have questions regarding the laws governing lawyers in New York.

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