The New York state court system has proposed a new rule authorizing out-of-state and foreign attorneys to practice in New York temporarily, the state’s Office of Court Administration has announced.
The proposed rule change — which was successfully opposed for more than a decade by lawyers worried about losing business to neighboring states — would bring New York in line with a national consensus regarding interstate and international law practice: forty-five other states have already adopted a similar rule.
Stephen Gillers, a legal ethics professor at NYU Law School, characterized the state’s longstanding reluctance to open its courts to out-of-staters as a case of “misguided economic protectionism.”
“New York’s failure to adopt a temporary practice rule has not only been bewildering and a great disappointment, it also reveals a failure to recognize that today lawyers routinely cross state lines,” Gillers wrote in an email.
New York’s proposed rule is based on a model rule passed by the American Bar Association in 2002. In the decade after the ABA rule was passed, New York was one of only a handful of states that declined to follow the ABA’s lead.
Gillers added that New York’s reticence prompted a rule in Connecticut barring New York lawyers from temporary practice, since New York doesn’t afford the same benefit to Connecticut lawyers.
Ronald Minkoff, a Manhattan litigator who sits on the State Bar’s Committee on Standards of Attorney Conduct, the group primarily responsible for pushing the rule change through, said the new rule modernizes law practice in New York.
“We’re in the 21st century here,” he said. “People are regularly going to depositions, meetings, et cetera, across state lines. We need to get with the program.”
Another reason for the rule, Minkoff suggested, is that large numbers of lawyers were already practicing across state lines, in violation of the state’s ban.
“I would characterize the rule against unauthorized practice of law as ‘honored in the breach,'” Minkoff said, channeling Shakespeare.
In a 2012 report co-authored by Minkoff, the State Bar explained that “temporary practice in New York is already commonly thought to be permitted under case law construing the existing statutes.”
A new rule authorizing temporary practice, the report suggested, would “clarify rather than contradict current understandings.”
Asked whether the battle over the rule was a fight between lawyers at large law firms in New York City, who regularly do business with out-of-state and international clients, and smaller firms and solo practitioners outside the city, Gillers brushed aside the notion.
“The State Bar through its House of Delegates strongly supported the rule, and it is composed of big and small firm lawyers in all kinds of practices,” Gillers said.
The Office of Court Administration is currently soliciting public comment on the proposed rule. The deadline for comments is November 3.