The Court of Appeals begins the new year with one week of oral arguments that features a critical issue effecting multi-state practice of law in New York. On January 9, 2019, the second day of oral arguments, the Court will determine whether the failure of a plaintiff’s nonresident attorney to maintain an in-state office at the time the action was commenced, in violation of Judiciary Law § 470, renders the action a nullity and requires dismissal of the action (the Court’s case summary can be found here).
No. 4 Arrowhead Capital Finance, Ltd. v Cheyne Specialty Finance Fund L.P.
Judiciary Law § 470 provides that “[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.” Upon the certified question from the Second Circuit as to “the minimum requirements necessary to satisfy the statutory directive that nonresident attorneys maintain an office within the State ‘for the transaction of law business under Judiciary Law § 470,” the Court of Appeals held “the statute requires nonresident attorneys to maintain a physical office in New York” (Schoenefeld v State, 25 NY3d 22, 25 ).
Arrowhead Capital Finance, Ltd. v Cheyne Specialty Finance Fund L.P. seeks to answer a question left unanswered by the Court of Appeals in Schoenefeld—what is the effect of a nonresident attorney’s failure to comply with the minimum requirements of Judiciary Law § 470.
Barry Goldin is an attorney licensed to practice law in the State of New York who maintains an office in Allentown, Pennsylvania. In June 2014, Goldin, commenced this action on Arrowhead’s behalf against Cheyne, Arrowhead’s general partner, for breach of two trust agreements. The complaint that Goldin filed listed his Allentown office address with its telephone and fax numbers as well as an address at 240 Madison Avenue in Manhattan.
After Cheyne successfully moved to dismiss all of Arrowhead’s claims except for breach of fiduciary duty and breach of contract, Cheyne sought permission to file a second motion to dismiss the action on the ground that Goldin violated Judiciary Law § 470. Specifically, Cheyne argued that the Madison Avenue address listed on the complaint “is not an actual law office occupied by [Goldin], or, for that matter, anyone else.” In response to the motion, the New York law firm of Wollmuth Maher & Deutsche filed a notice of appearance as co-counsel for Arrowhead in the action. Goldin posited that the second motion to dismiss should be denied because any violation of Judiciary Law § 470 was cured by Wollmuth’s appearance as co-counsel.
The Appellate Division, First Department disagreed, holding that “[p]laintiff’s subsequent retention of cocounsel with an in-state office did not cure the violation, since the commencement of the action in violation of Judiciary Law § 470 was a nullity.” The First Department’s “nullity” rule directly conflicts with precedent from the Second and Third Department which permit a nonresident attorney to cure a Judiciary Law § 470 violation by obtaining a new counsel with a New York office or by filing a pro hac vice application (see, e.g., Elm Mgt. Corp. v Sprung, 33 AD3d 753 [2d Dept 2006]; Stegemann v Rensselaer County Sheriff’s Off., 153 AD3d 1053 [3d Dept 2017]).
The Court of Appeals resolution of this issue with have a great impact on the future of multi-state practice in New York. Certainly, unwitting plaintiffs should not be punished for their attorneys’ violation of Judiciary Law § 470. Conversely, clients should not be able to refute actions taken by their nonresident attorneys on their clients’ behalf merely because the attorney has violated Judiciary Law § 470. However, is judicial economy served by dismissing actions without prejudice for an attorney’s failure to maintain bricks and mortar in New York? After all, the nonresident attorney Goldin in Arrowhead is licensed to practice law in the New York. And isn’t that why New York adopted the Uniform Bar Exam, to make it easier to maintain a multi-state practice?
Interestingly, Goldin is scheduled to present Arrowhead’s oral argument of the appeal before the Court of Appeals, even though doing so is technically a violation of section 470. By allowing that to occur, could the Court be signaling that Goldin’s affiliation with Wollmuth, a New York City firm, was sufficient to cure his violation? We shall see.