By Richard Maltz —
This article was originally published May 5, 2023.
I authored an article in October 2020, discussing how remote practitioners will have a problem in getting admitted in New York without taking a Bar Examination because of the outdated concept that a lawyer is only deemed “practicing law” in a jurisdiction by sitting at a desk in that jurisdiction (i.e., “physical presence”). This created a problem for remote practitioners who practiced all or part of their time remotely from their home.
Two years later, my colleague, Tyler Maulsby, explained in a related article that New York finally amended its Court Rules to explicitly allow non-New York admitted attorneys to practice remotely from their New York home. (22 NYCRR § 523.5) For example, a lawyer can permanently live and reside in New York, be admitted in D.C., and can practice “D.C. law” remotely from a New York home as long as the lawyer does not practice New York law or hold themselves out as a “New York lawyer.” This change simply conforms New York law to the practice of law all over the country, which was accelerated by COVID and is now driven by law firm economics. Nonetheless, this should change the landscape for allowing out of state admitted attorneys to be Admitted Without Examination pursuant to reciprocal admission.
Court Rule 22 N.Y.C.R.R § 520.10(a)(2)(i) (“Five-of-Seven Rule”) requires that a lawyer seeking to be admitted in New York without taking a Bar Examination must have “actually practiced” in a state in which they are licensed for five of the last seven years before their application is filed. Currently, the Character & Fitness Committees (“Committees”) have interpreted “practice” as a physical presence in the state of admission. In other words, remote practice from a residence does not qualify. Yet, it is clear that this conflicts with the principle created by New York’s recent remote practice rule for non-New York lawyers. It also conflicts with common sense. The idea that a highly experienced lawyer must take a bar examination to be admitted in our state, who is otherwise highly qualified, simply because the lawyer practiced remotely, is not consistent with the presumed policy of the Five-of-Seven Rule. The Rule obviously attempts to assure that only competent and experienced lawyers are admitted even if not being measured by a Bar Examination. It can hardly be disputed that a narrow reading of the Five-of Seven Rule does not serve that purpose. Moreover, taking a Bar Examination is truly a hardship for lawyers who are extremely busy or older practitioners who have not been subject to strenuous test taking for many years.
It is understandable that the Committees are uncomfortable using any discretion for what has always been a check-the-box approach to this issue. Physical presence has always been the touchstone for where a lawyer is deemed to practice. However, there is now confirmation that this unrealistic notion is obsolete by the enactment of the new court rule. Nonetheless, the Committees’ reluctance to accept this change without direct intervention by the Court of Appeals in an explicit rule continues to necessitate the remote-practicing lawyer to apply to the Court of Appeals for a waiver of strict compliance with the Five-of-Seven Rule. (22 N.Y.C.R.R. §520.14) Unfortunately, the Court of Appeal’s procedure for seeking a waiver does not create public precedent that would eliminate this obvious glitch because the Court’s decisions in these matters are private and rarely include any factual or legal finding.
For the time being, remote practitioners, even if they have substantial experience will still have to apply to the Court of Appeals for a waiver. Hopefully, after a large number of remote practitioners file these waiver applications after the enactment of the new remote practice rule, it will motivate the Court of Appeals to eliminate this gap explicitly in the court rules.