New York Law Review

Tag: Unauthorized Practice of Law

  • People v. Romero, 91 N.Y.2d 750 (1998): Limits on Attorney General’s Power to Criminally Prosecute Unlawful Practice of Law

    People v. Romero, 91 N.Y.2d 750 (1998)

    Judiciary Law § 476-a(1), which authorizes the Attorney General to maintain an “action” against those engaged in the unlawful practice of law, refers only to civil actions, not criminal prosecutions, unless explicitly authorized by statute.

    Summary

    The New York Court of Appeals addressed whether the Attorney General had the authority under Judiciary Law § 476-a(1) to criminally prosecute an individual for the unlawful practice of law and petit larceny. The defendant, an attorney licensed in Honduras, was granted permission to practice law pro hac vice in New York. After this permission expired, he accepted payment from a woman to represent her in a divorce, but he did not actually provide legal representation. The Attorney General secured an indictment and conviction. The Court of Appeals reversed, holding that § 476-a(1) only authorizes civil actions, and the Attorney General lacks general prosecutorial power without explicit statutory authorization.

    Facts

    Defendant, an attorney in Honduras, was admitted to practice law pro hac vice in New York for a specific project. After his pro hac vice admission expired, a woman approached him seeking representation in her divorce. The defendant accepted $750 from the woman and prepared divorce documents, listing her as a “pro se plaintiff.” The woman later discovered that “pro se” meant she was not represented by an attorney, despite paying the defendant for legal services.

    Procedural History

    The Attorney General presented the matter to a Grand Jury, which indicted the defendant for offering a false instrument for filing (later dismissed), unauthorized practice of law, and petit larceny. The trial court denied the defendant’s motion to dismiss, asserting that Judiciary Law § 476-a authorized the prosecution. The jury convicted the defendant of unlawful practice of law and petit larceny. The Appellate Division affirmed the conviction, arguing that Executive Law § 63(3) provided an alternative basis for the Attorney General’s authority. The Court of Appeals granted leave to appeal.

    Issue(s)

    Whether Judiciary Law § 476-a confers prosecutorial authority on the Attorney-General to bring criminal charges against an individual allegedly engaged in the unauthorized practice of law?

    Holding

    No, because the word “action” in Judiciary Law § 476-a(1) refers only to civil actions, and the Attorney General lacks general prosecutorial power without explicit statutory authorization.

    Court’s Reasoning

    The Court of Appeals began by noting that the Appellate Division’s reliance on Executive Law § 63(3) was not properly before the court because it was not ruled upon in the criminal court action. The court emphasized that District Attorneys have plenary prosecutorial power, but the Attorney General only has such power when specifically authorized by statute, citing Della Pietra v. State of New York, 71 N.Y.2d 792, 797. The Attorney General argued that Judiciary Law § 476-a, which allows the Attorney General to “maintain an action” against those unlawfully practicing law, includes criminal prosecution. The court disagreed, stating that the word “action” as used in the statute, only encompasses a civil action.

    The Court reasoned that Judiciary Law § 476-a(2) allows bar associations to maintain “such an action,” and interpreting “action” to include criminal prosecution would give bar associations the power to prosecute crimes, which is traditionally a state power. The Court stated, “To read the word ‘action’ in section 476-a (1) to encompass a criminal action would mean that a Bar association could prosecute crimes, and, as a corollary matter, could also convene Grand Juries and issue subpoenas. Such a conclusion would be contrary to the fundamental principle that the power to prosecute crimes is traditionally a power of the State as sovereign.”

    Furthermore, Judiciary Law § 476-b mandates a civil remedy, an injunction, for successful actions under § 476-a. This injunction is a civil action additional to any criminal sanctions. The legislative history of § 476-a, derived from the Civil Practice Act § 1221-a, supports its civil nature, as there was no need to specify it as civil within the Civil Practice Act. The Court emphasized that several other statutes specifically authorize the Attorney General to prosecute crimes, but Judiciary Law § 476-a lacks such specific authorization. Therefore, the Attorney General was limited to a civil prosecution in this case.

  • New York Criminal and Civil Courts Bar Ass’n v. Jacoby, 61 N.Y.2d 130 (1984): Multistate Law Firm Practice in NY

    New York Criminal and Civil Courts Bar Ass’n v. Jacoby, 61 N.Y.2d 130 (1984)

    A multistate law firm with partners admitted in different states can practice law in New York if at least one active partner is admitted in New York, and the firm can use a firm name consisting of combined surnames, even if none are the surnames of partners licensed in New York.

    Summary

    The New York Criminal and Civil Courts Bar Association sought to enjoin Jacoby & Meyers from practicing law in New York, arguing the firm’s name misrepresented that partners Jacoby and Meyers were licensed in New York. The Court of Appeals held that a multistate law firm can practice in New York if at least one active partner is admitted in the state. Using a firm name comprised of surnames alone does not constitute a misrepresentation that individuals with those surnames are admitted to practice in New York. The firm may use its firm name in advertisements and on letterheads, provided it clearly indicates when individual lawyers listed are not admitted to practice in New York.

    Facts

    Jacoby & Meyers is a national law firm with offices in California and New York. Leonard D. Jacoby and Stephen Z. Meyers are admitted to practice in California but not in New York. Gail J. Koff, a partner resident in New York, is a member of the New York Bar and supervises the firm’s New York offices. The firm uses letterheads listing office locations in New York and identifying partners not licensed in New York. The firm also advertises in New York using only the firm name.

    Procedural History

    The New York Criminal and Civil Courts Bar Association sought permission from the Supreme Court to bring an action against Jacoby & Meyers after first requesting the Attorney General to do so. The Supreme Court denied both the defendants’ motion to dismiss and the plaintiff’s cross-motion for summary judgment. The Appellate Division modified by dismissing the complaint. The Court of Appeals affirmed the Appellate Division’s decision, treating the appeal as cross-motions for summary judgment.

    Issue(s)

    Whether a multistate law firm can practice law in New York State if at least one active partner is admitted to practice in New York, and whether the firm can conduct such practice under a firm name comprised of a combination of surnames, although none of them is the surname of a partner licensed to practice in New York.

    Holding

    Yes, because use of a firm name comprised of surnames, without more, does not constitute any holding out that there are individual partners bearing those surnames who are admitted to practice in New York.

    Court’s Reasoning

    The Court reasoned that section 478 of the Judiciary Law prohibits individuals from practicing law in New York without being admitted to the New York bar. However, the court found that the use of a firm name consisting of surnames, without any further representation, does not imply that individuals bearing those surnames are admitted to practice in New York. The Court drew an analogy to firms using the names of deceased partners, noting that in both situations, the firm name is an “institutional description” and does not represent that individuals with those surnames are currently available to render legal services in New York.

    The Court cited Disciplinary Rule 2-102(D) of the Code of Professional Responsibility, which states that multistate firms must clearly indicate the jurisdictional limitations of members not licensed in all listed jurisdictions but that the same firm name may be used in each jurisdiction. While noting that the Code does not have the force of law, the court found that in this instance, the rule fairly states the application of section 478 to multistate law firms.

    The court emphasized that the policy of New York is to foster the availability of a wide range of professional services by qualified lawyers. However, only individuals admitted to practice in New York may actually practice law in the state. The court concluded that Jacoby & Meyers was entitled to summary judgment because there was no evidence that the firm was violating these rules.

  • Matter of New York County Lawyers’ Association v. Anonymous, 32 N.Y.2d 918 (1973): Limits on Investigatory Powers of Non-Governmental Organizations

    Matter of New York County Lawyers’ Association v. Anonymous, 32 N.Y.2d 918 (1973)

    A non-governmental organization with delegated investigatory powers is not authorized to conduct an unlimited and general inquisition into personal affairs without a basis for the inquiry, and individuals subject to such inquiries may assert a claim of harassment if the inquiry becomes unduly burdensome.

    Summary

    This case addresses the limits on the investigatory powers of a non-governmental organization, specifically the New York County Lawyers’ Association, concerning the unauthorized practice of law. The Court of Appeals held that while the Association has the power to investigate, that power is not unlimited. There must be authority, relevancy, and some basis for the inquisitorial action. The court affirmed the Appellate Division’s order, allowing the investigation to proceed but emphasized that the witness has the right to seek remedy if the inquiry becomes unduly intrusive or burdensome. A bare showing is enough to initiate an inquiry but not enough to harass a witness.

    Facts

    The New York County Lawyers’ Association initiated an investigation into the potential unauthorized practice of law concerning pension and profit-sharing planning. The Association served a subpoena on an individual (Anonymous) to appear and produce documents related to the inquiry. The Association believed that unqualified persons were drafting legal instruments in connection with pension and profit-sharing schemes. The individual moved to quash the subpoena.

    Procedural History

    The individual moved to quash the subpoena. The Appellate Division upheld the subpoena, allowing the investigation to proceed. The Court of Appeals affirmed the Appellate Division’s order, emphasizing limitations on the investigatory power and the rights of the individual being investigated.

    Issue(s)

    Whether a non-governmental organization with delegated powers of inquiry, such as the New York County Lawyers’ Association, can conduct a broad investigation into an individual’s affairs without demonstrating a reasonable basis for believing that illegal practices are occurring.

    Holding

    No, because while the organization has the authority to initiate an inquiry with a bare showing of basis, this does not grant unlimited power. An individual can seek remedy if the inquiry becomes unduly protracted, intrusive, or burdensome.

    Court’s Reasoning

    The court reasoned that all inquiries must have authority, relevancy, and a basis. While a bare showing is enough to initiate, it is not enough to harass. The court emphasized that no agency of government, nor a non-governmental organization with delegated powers, may conduct an unlimited and general inquisition into the affairs of persons within its jurisdiction solely on the prospect of possible violations of law. The court acknowledged the Association’s need to investigate the potential unauthorized practice of law but cautioned against unduly intrusive or burdensome inquiries. The court stated, “If the inquiry is unduly protracted, unduly intrusive into the affairs of the witness without some showing of utility in its further prosecution, or by the breadth or intensity of the inquiry into the books and papers of the witness it has become unduly burdensome, the witness will not be without remedy.” The court also noted that the Association should show reasonable ground to believe that there was illegal practice of law in the area of pension and profit-sharing planning and that unqualified persons were doing the drafting.

  • Spivak v. Sachs, 16 N.Y.2d 163 (1965): Out-of-State Attorney’s Right to Compensation for Legal Services

    Spivak v. Sachs, 16 N.Y.2d 163 (1965)

    An attorney not licensed to practice in New York cannot recover fees for legal services rendered within the state if those services constitute the unauthorized practice of law, even if the attorney is licensed elsewhere.

    Summary

    A California attorney, not admitted to the New York Bar, sued a New York resident for the value of legal services rendered in New York concerning her divorce and separation agreement. The New York Court of Appeals reversed the lower court’s judgment in favor of the attorney, holding that his actions constituted the unauthorized practice of law in New York. The court reasoned that the attorney provided legal advice on New York law, recommended changes in legal strategy, and urged the client to change New York counsel, thus exceeding the scope of permissible out-of-state legal activity and precluding him from recovering compensation for those services.

    Facts

    The defendant, a New York resident, was undergoing divorce proceedings in Connecticut and negotiating a separation agreement. She contacted the plaintiff, a California attorney whom she knew socially, expressing confusion and concern about the proceedings. She asked him to come to New York to advise her. The attorney traveled to New York and spent approximately two weeks advising the defendant. He examined drafts of separation agreements, discussed financial and custody issues, and offered his opinion on the adequacy of her representation, based on his knowledge of New York and California law. He attended meetings with the defendant’s New York attorney and suggested that Connecticut was not the proper jurisdiction for the divorce. He also unsuccessfully attempted to persuade the defendant to change her New York counsel.

    Procedural History

    The trial court awarded the California attorney $3,500 in fees plus expenses. The Appellate Division affirmed. The New York Court of Appeals reversed the order and dismissed the complaint, finding that the attorney had engaged in the unauthorized practice of law.

    Issue(s)

    Whether an attorney, not licensed to practice law in New York, can recover fees for legal services rendered in New York when those services constitute the practice of law within the state.

    Holding

    No, because the attorney’s actions in advising a New York resident on matters of New York law, recommending changes to legal strategy, and attempting to interfere with the client’s relationship with her New York counsel constitute the unauthorized practice of law, barring him from recovering compensation.

    Court’s Reasoning

    The court reasoned that the practice of law, forbidden to non-licensed attorneys under Section 270 of the New York Penal Law, includes legal advice and counsel, not just appearing in court. The court distinguished this case from prior cases such as People v. Alfani and People v. Goldsmith, where the drawing of a single document for a small fee was not considered the practice of law. Here, the California attorney was brought to New York specifically to advise a New York resident on critical marital rights and problems, including the proper jurisdiction for litigation and related alimony and custody issues. The court emphasized that the statute aims to protect New York citizens from unqualified legal advice, whether from laypersons or attorneys from other jurisdictions. The court quoted, “The statute aims to protect our citizens against the dangers of legal representation and advice given by persons not trained, examined and licensed for such work, whether they be laymen or lawyers from other jurisdictions.” While acknowledging that not every instance of an out-of-state attorney engaging in conferences or negotiations related to a New York client would be penalized, the court found that the attorney’s actions in this case clearly constituted the unauthorized practice of law. Because the transaction was illegal, the court refused to aid in its enforcement, leaving the parties where they were, citing McConnell v. Commonwealth Pictures Corp.