This opinion is uncorrected and subject to revision before
publication in the New York Reports.
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No. 39
Ekaterina Schoenefeld,
            Respondent,
        v.
State of New York, et al.,
            Defendants,
Eric T. Schneiderman &c., et al.,
            Appellants.




          Laura Etlinger, for appellants.
          Ekaterina Schoenefeld, pro se.
          Michael H. Ansell et al.; Ronald McGuire, amici curiae.




LIPPMAN, Chief Judge:
          In this case, the United States Court of Appeals for
the Second Circuit has asked us to set forth the minimum
requirements necessary to satisfy the statutory directive that

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nonresident attorneys maintain an office within the State "for
the transaction of law business" under Judiciary Law § 470.    We
hold that the statute requires nonresident attorneys to maintain
a physical office in New York.
           Plaintiff Ekaterina Schoenefeld is a New Jersey
resident who was admitted to the practice of law in New York in
2006.   Schoenefeld is also admitted to practice in New Jersey and
maintains her only law office in Princeton.   According to the
complaint, in 2007, Schoenefeld attended a continuing legal
education class entitled Starting Your Own Practice, which was
offered by the New York State Bar Association in New York City.
There, she learned of the statutory requirement that nonresident
attorneys must maintain an office within New York in order to
practice in this State.   Specifically, under Judiciary Law § 470,
"[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."
           Schoenefeld commenced this action in federal district
court in July 2008, alleging that Judiciary Law § 470 was
unconstitutional on its face and as applied to nonresident
attorneys in violation of the Privileges and Immunities Clause of




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the United States Constitution (US Const, art IV, § 2).1     She
alleged that she was unable to practice in the State, despite her
compliance with all admission requirements, because she does not
maintain an office in New York.   She further maintained that
there was no substantial state interest served by the office
requirement, which was not applicable to New York resident
attorneys.
          The district court granted plaintiff's motion for
summary judgment and held that section 470 violated the
Privileges and Immunities Clause (see Schoenefeld v New York, 907
F Supp 2d 252, 266 [ND NY 2011]).   The court determined that the
office requirement implicated nonresident attorneys' fundamental
right to practice law.   The court then rejected the state
interests proffered by defendants as insubstantial and found
that, in any event, the statute did not bear a substantial
relationship to the interests asserted as there were less
restrictive means of accomplishing those interests.
          The Second Circuit determined that the
constitutionality of the statute was dependent upon the
interpretation of law office requirement (see Schoenefeld v New



     1
       This action was initially commenced in the Southern
District of New York. That court granted defendants' motion to
transfer venue to the Northern District. The Northern District
then granted, in part, defendants' motion to dismiss the amended
complaint by dismissing the action as against certain named
defendants and by dismissing plaintiff's Commerce Clause and
Equal Protection claims.

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York, 748 F3d 464, 467 [2d Cir 2014]).   The court observed that
the requirements that must be met by nonresident attorneys in
order to practice law in New York reflect an important state
interest and implicate significant policy issues.   The court
therefore certified the following question for our review: "Under
New York Judiciary Law § 470, which mandates that a nonresident
attorney maintain an 'office for the transaction of law business'
within the state of New York, what are the minimum requirements
necessary to satisfy that mandate?" (Schoenefeld, 748 F3d at
471).   We accepted certification (23 NY3d 941 [2014]) and, as
noted above, we interpret the statute as requiring nonresident
attorneys to maintain a physical law office within the State.
           It is well settled that, where the language of a
statute is clear, it should be construed according to its plain
terms (see Matter of Raritan Dev. Corp. v Silva, 91 NY2d 98, 107
[1997]).   We have also held that "no rule of construction gives
the court discretion to declare the intent of the law when the
words are unequivocal" (Raritan, 91 NY2d at 107 [quotation marks,
citation and emphasis omitted]).
           Here, the statute appears to presuppose a residency
requirement for the practice of law in New York State.   It then
makes an exception, by allowing nonresident attorneys to practice
law if they keep an "office for the transaction of law business"




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in this State.2   By its plain terms, then, the statute requires
nonresident attorneys practicing in New York to maintain a
physical law office here.
           However, recognizing that there may be a constitutional
flaw if the statute is interpreted as written, defendants urge us
to construe the statute narrowly in accordance with the doctrine
of constitutional avoidance (see Overstock.com, Inc. v New York
State Dept. of Taxation & Fin., 20 NY3d 586, 593 [2013] ["courts
must avoid, if possible, interpreting a presumptively valid
statute in a way that will needlessly render it
unconstitutional"]).   In particular, they suggest that the
provision can be read merely to require nonresident attorneys to
have some type of physical presence for the receipt of service --
either an address or the appointment of an agent within the
State.   They maintain that interpreting the statute in this way
would generally fulfill the legislative purpose and would
ultimately withstand constitutional scrutiny.
           The statute itself is silent regarding the issue of
service.   When the statute was initially enacted in 1862,
however, it did contain a service provision.    At that time, it



     2
       The Appellate Division Departments have not limited the
application of the statute to residents of adjoining states, but
have applied it to nonresident attorneys in general (see e.g.
Lichtenstein v Emerson, 251 AD2d 64 [1st Dept 1998]; Matter of
Haas, 237 AD2d 729 [3d Dept 1997]). We accept that
interpretation, which is not contested by the parties, for the
purposes of this certified question.

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essentially required that an attorney who maintained an office in
New York, but lived in an adjoining state, could practice in this
State's courts and that service, which could ordinarily be made
upon a New York attorney at his residence, could be made upon the
nonresident attorney through mail addressed to his office (see
Act of March 22, 1862, ch 42, 1862 NY Laws 139).   Upon the
enactment of the Code of Civil Procedure in 1877, the provision
was codified at section 60 of the Code.    In 1909, the provision
was divided into two parts -- a service provision, which remained
at section 60 of the Code, and a law office requirement, which
became section 470 of the Judiciary Law.   Notably, after we
invalidated a New York residency requirement for attorneys in
Matter of Gordon (48 NY2d 266 [1979]) the legislature amended
several provisions of the Judiciary Law and the CPLR to conform
to that holding (L 1985, ch 226).   Section 470, however, was not
one of the provisions amended and has remained virtually
unchanged since 1909.
          Even assuming the service requirement had not been
expressly severed from the statute, it would be difficult to
interpret the office requirement as defendants suggest.    As the
Second Circuit pointed out, even if one wanted to interpret the
term "office" loosely to mean someplace that an attorney can
receive service, the additional phrase "for the transaction of
law business" makes this interpretation much less plausible.
Indeed, the Appellate Division departments have generally


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interpreted the statute as requiring a nonresident attorney to
maintain a physical office space (see Lichtenstein, 251 AD2d 64;
Haas, 237 AD2d 729; Matter of Larsen, 182 AD2d 149 [2d Dept
1992]).   Defendants' proffered interpretation, on the other hand,
finds no support in the wording of the provision and would
require us to take the impermissible step of rewriting the
statute (see Matter of Wood v Irving, 85 NY2d 238, 245 [1995]).
          The State does have an interest in ensuring that
personal service can be accomplished on nonresident attorneys
admitted to practice here.   However, it is clear that service on
an out-of-state individual presented many more logistical
difficulties in 1862, when the provision was originally enacted.
The CPLR currently authorizes several means of service upon a
nonresident attorney, including mail, overnight delivery, fax and
(where permitted) email (see CPLR 2103 [b]).   Under our own Court
rules, the admission of attorneys who neither reside nor have
full-time employment in the State is conditioned upon designating
the clerk of the Appellate Division in their department of
admission as their agent for the service of process for actions
or proceedings brought against them relating to legal services
offered or rendered (see Rules of the Court of Appeals [22 NYCRR]
§ 520.13 [a]).   Therefore, there would appear to be adequate
measures in place relating to service upon nonresident attorneys
and, of course, the legislature always remains free to take any
additional action deemed necessary.


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          Accordingly, the certified question should be answered
in accordance with this opinion.




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*   *   *   *   *   *    *   *    *      *   *   *   *   *   *   *   *
Following certification of a question by the United States Court
of Appeals for the Second Circuit and acceptance of the question
by this Court pursuant to section 500.27 of this Court's Rules of
Practice, and after hearing argument by counsel for the parties
and consideration of the briefs and record submitted, certified
question answered in accordance with the opinion herein. Opinion
by Chief Judge Lippman. Judges Read, Pigott, Rivera, Abdus-
Salaam and Fahey concur. Judge Stein took no part.

Decided March 31, 2015




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