An Overview of NY Judiciary Law 470
For cases that are started in the state courts in NY, if the plaintiff is a resident of New York and he or she retained the New York lawyer to represent him, there’s no need for any qualifications under NY Judiciary Law 470. If you got hurt in New York and the case is being handled by a legal team from the city where the accident happened, you have to get your case referred to a licensed attorney who has secured a certificate of compliance for the out-of-State attorney and prove that the out-of-state lawyer qualifies under Section 470 as a non-New York attorney.
A NY lawsuit accident lawyer who is also a resident of the state must qualify with an attorney from the state where the accident happened OR get a certificate of compliance. There are no exceptions to this rule except for lawyers who are employed by a corporation or government entity and the NY attorney must be deemed to be a resident of the county otherwise compliance with 470 is required. Non-resident attorneys whose names appear on a NY lawsuit or who actually participated as the trial lawyer will be dismissed if they fail to comply with 470.
The New York Judiciary Law 470 requires that an out-of-state attorney who is representing New York clients to either team up with a resident attorney who is "a member of the bar of the court in which action or special proceeding is commenced" OR qualify for each particular New York case by getting a certificate of compliance for every case from the New York lawyer who is a member of the Bar of NY state . The section requires that all complaints have the home address of the resident attorney so the compliance can be verified.
This provision came into effect in 1921 as we witnessed increasing amounts of out-of-staters working with out-of-state attorneys for New York cases. If anybody ever attempts to question the compliance of the NY attorney, Section 470 provides a remedy as it voids all non-complying actions and dismisses them without costs to either party. Petitioners could have their actions transferred to another New York County Court in compliance with lawyers since 1921.
In order to avoid having to deal with compliance requirements, many firms acquire an office in upstate or downstate New York. A non-resident NYC attorney must be a member of the bar of New York state and meet other requirements stipulated in the state rules. Some lawyers who are New York residents don’t draft papers within the city so technically, don’t meet the requirement, making them subject to 470 compliance.
All attorneys must comply with 470 but they are allowed to work with other lawyers who don’t work in the jurisdiction where a case is being investigated and lawyers who are licensed to practice law in New York courts and in other jurisdictions. Section 470 doesn’t apply to the legal firms that were in existence prior to 1962.
In 2009, Civil Practice Law and Rules were amended with the enactment of Chapter 216 regarding Section 470 compliance and gave a lot of discretion to judges when it comes to the dismissal of cases involving non-complying lawyers.
Eligibility to Practice Law Under Judiciary Law 470
Out-of-state attorneys may only practice law in New York under the provision of Judiciary Law § 470 if they have an office in New York where they primarily practice law and where they maintain their official records. The courts have acknowledged that there are various interpretations of this section, and have concluded that a literal interpretation of it places an unnecessary and undue burden upon attorneys residing in other jurisdictions who maintain second homes in New York and who are admitted to practice law in New York or any other jurisdiction. The courts have approved exceptions for such individuals, provided that they maintain a permanent office in New York with regular hours and staff. In addition, no exceptions exists for out-of-state attorneys who conduct trial practice in New York. Such attorneys must maintain an office in the state where they reside. An out-of-state attorney who does not maintain an office in another state cannot claim venue for trial in New York if the attorney represents a party who cannot be personally served.
Impact on Non-NY Lawyers
A major effect of NY J.L. 470 is felt by attorneys who are members of the bar of other states. Such attorneys may not appear as counsel of record in a New York state court action unless they are associated with a New York lawyer. If they appear without an associated New York attorney, the court will issue an order to show cause, returnable in 14 days, ordering the out-of-state attorney to show cause why he should not be disqualified and held in contempt. In response, the attorney may declare his intention to retain New York counsel or that he is appearing pro hac vice, with leave of the court, pursuant to Judiciary Law 478.
On the federal level, however, one district court has refused to enforce Judiciary Law 470 and has declared unconstitutional the provision that out-of-state attorneys are required to associate with New York counsel. New York City Transit v. Lutz, 2008 WL 4934365 (E.D.N.Y., Nov. 17, 2008). There is as yet no Second Circuit ruling on that question.
The Second Circuit has, however, discussed the power of a U.S. district court to require counsel to comply with New York procedural rules, including those governing attorney registration. Hae Sheng Wu v. City of New York, 2008 WL 2917525, *7-8 (2d Cir. July 30, 2008). This is an inherent power of the court, although a federal statute preempts judicially created procedures that conflict with New York state laws. A federal court "may grant a motion seeking to apologize for the mistake" of an out-of-state attorney who has not complied with New York law while being mindful of the need to protect the integrity of the judicial process.
Amendments and Recent Development in Interpretation
Recently, several cases have addressed issues relating to J. Law § 470. In 2011, the Second Department affirmed the dismissal of negligence actions by an attorney who was not admitted to practice in New York and had not continuously maintained an office for the practice of law in New York prior to commencing those actions in 2005. Riegel v Bieganski, 82 AD3d 699 [2d Dept 2011]. In that action, the defendant moved to dismiss the complaint arguing that the attorney lacked the authority to sue before this court, as he was not an attorney at the time he commenced the action. The defendant argued that because J. Law § 470 required resident attorneys to maintain an office for the practice of law in New York state and to conduct a substantial portion of their professional business activities on a regular basis for at least two years immediately prior to undertaking any claim for which counsel’s fees may be awarded in the New York state courts, the plaintiff could not serve as counsel as he was not yet an attorney. The Second Department agreed and held that for J. Law § 470 to be effective, the office be continuously maintained in New York, thus establishing that Riegel’s work as an attorney commenced in New York state, thereby subjecting him to the statute of limitations. Interestingly, the Court also held that the defendants were entitled to attorney’s fees under J. Law § 470, as the plaintiffs had offered no support for their opposition to that request.
In addition to Riegel, the Second Department has recently expanded on J. Law § 470. In Real v Frederick C. Germer, P.L.L.C. , 80 AD3d 790 [2d Dept 2011], the Court of Appeals held that even though a non-resident attorney was disqualified from continued representation of a party on the basis of violating 22 NYCRR 1200.0, Disciplinary rules 5.5 and 1.10, the plaintiff was bound by a retainer agreement with that attorney. As such, the plaintiff was subject to the provision of J. Law § 470 (a)(1), as when a person is represented by an attorney, all subsequent undertakings must be filed by the admitted attorney or a lawyer eligible to commence an action in New York.
Despite its name, J. Law § 470 is not limited to attorneys’ fees for attorney’s client work. The statute provides for the imposition of attorneys’ fees against the losing party, when a plaintiff obtains a judgment against one or more defendants or a defendant obtains a judgment against the plaintiff.
The lesson of the above cases is that a careful plan of action is required throughout every stage of the litigation process. Initially, an attorney must be aware of his residence requirements under 22 NYCRR 520.1 [b] (2). Thereafter, should the attorney move his practice to another state, he should consider the impact on his New York residency status. Finally, once involved in litigation, every party must be cognizant of J. Law § 470 in the event he becomes a prevailing party.
Existing Controversies and Criticism
The application of JL 470 has given rise to a series of controversies. Among the more prominent issues are whether the law applies only when the case is pending in New York State court, and whether it is applicable where an out-of-state lawyer represents a New York litigant. For example, one case held the statute "does not apply" to an action filed in state court by attorney residing out of state, but subsequently removed to federal court. The federal court never cited to or discussed the section. A New York Court has passed on the issue vacating sanctions against an out of state lawyer, saying: "Judiciary Law § 470 imposes a requirement on an attorney "who is admitted to practice in the courts of this state and who is performing services for a party in the action in which such party is a member of the bar of the highest court of another state highly analogous to section 460 of the Judiciary Law" [citations omitted]. This section was intended to equalize "the practice of the New York attorney with that of his brothers practicing in other states" and to remedy the perceived "injustice" to out-of-state lawyers who continued to encounter difficulty "securing admission to the bar on motion" in New York State courts. This statute must be read in conjunction with Esposito v Grisi. In substituting the relevant portion of Judiciary Law § 470 for a portion of Judiciary Law § 460 , the Court appears to have adopted the observation of the Appellate Division, Second Department that subdivisions four through six of this Judiciary Law broadens the classes of cases in which an out-of-state licensed attorney may appear in New York courts as counsel. Judiciary Law § 470 does not expressly restrict the application of its provisions to attorneys who "appear[] solely in New York State courts." Judiciary Law§ 470 is not interpreted so as to permit application to an out-of-state attorney in a personal injury action brought in New York State Court with regard to personal injuries sustained as a result of a New York automobile accident. To do so would be contrary to the legislative intent behind the statute. A contrary ruling would "result in unnecessary delay in the administration of justice" which could have the practical effect of leaving injured New Yorkers without a remedy. To bar an out-of-state lawyer from appearing in the instant mixed contingency/retainer fee case would be to "restrict the role of the New York attorney in his own home state, while at the same time refusing to apply the restrictive rule to out-of-state attorneys appearing in other states." (Anderson & Assoc. v Moog Inc., 8 Misc 3d 243, 247 [Sup Ct, Westchester County 2005] [citations omitted]). Here, petitioner falls squarely within the intent of the statute.
Common Sense Suggestions for Attorneys
Attorneys should be mindful of their obligation to file the certificates of compliance pursuant to NY JL 470 in their new cases. The courts will often issue an order to show case or a dismissal if you do not comply with the remittal. After a short time, your case will be dismissed by the judge. Even worse, the statute of limitations may run on the cause of action. It is best to file the certificate as soon as possible after the remittal from the appellate division. An attorney should make sure that the certificate of compliance has been filed in the underlying case as well. This way you will not be responsible for an attorney’s fees award; and be required to file an order to show cause, in addition to the certificate of compliance.
Closing Thoughts and Future Prospects
In conclusion, despite its challenges and complications, NY Judiciary Law 470 remains a pivotal aspect of the New York legal system. As established in this article, a litigant’s duty to pay their attorney is not unqualified. However, the requirement to retain Pennsylvania counsel does not require that the litigant pay their attorney to represent them outside of Pennsylvania. Relatedly, while a litigant is required to retain counsel in Pennsylvania, the decision of whether to appeal or settle a case remains up to the litigant. Further developments in the substantive nature of NY Judiciary Law 470 will be left for another day.
However, it remains to be seen what effect, if any, NY Judiciary Law 470 will have on the practical, day-to-day resolution of cases between New York and Pennsylvania . There has been a gradual reduction of the absolute necessity to obtain counsel in another jurisdiction. The vast majority, if not all, times a litigant must hire an attorney located in another jurisdiction they are not from; that attorney is likely to be out of their area. With the ability to communicate by phone and video, email, and even relatively cheap and easy to access mail and overnight delivery, the need for the litigant to step foot in the attorney’s office is significantly reduced. In fact, many attorneys will even conduct an entire lawsuit without meeting the Plaintiff in person once.
Whatever its future holds, NY Judiciary Law 470 remains as a staple of the New York civil litigation practice and will continue to have a significant impact on the resolution of cases at all levels. Its future will undoubtedly come with its fair share of developments.