Friday, May 10, 2013
In appeal of the denial of admission by motion of an attorney, the Massachusetts Supreme Judicial Court disagreed with the conclusion of the Board of Bar Examiners that the motion be denied.
The applicant graduated from law school in 2004. He was admitted by examination in New Jersey in 2004 and New York in 2009. From July 2005 to November 2008, he was a contract attorney with Sullivan & Cromwell. The board's issue related to his work prior to his New York admission.
In the board's view, the time that Schomer spent practicing law in New
York prior to October 7, 2009, was "illegal" because he only was
licensed and admitted to practice in New Jersey. As such, this time did
not count toward the necessary minimum of five years of active practice
for purposes of admission on motion. Schomer counters that the board
is fundamentally mistaken about the purported illegality of his
temporary practice of law in New York and that, therefore, he has
satisfied this requirement of S.J.C. Rule 3:01, § 6.1.1. We agree that
Schomer has fulfilled this requirement, albeit for a slightly different
reason from the one he has put forth.
We recognize that pursuant to N.Y. Jud. Law § 478 (McKinney 2005), it "shall be unlawful for any natural person to practice or appear as an attorney-at-law ... or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner, ... without having first been duly and regularly licensed and admitted to practice law in the courts of record of this state, and without having taken the constitutional oath." [FN10] The purpose of this statute is "to protect the public in [New York] from '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." El Gemayel v. Seaman, 72 N.Y.2d 701, 705 (1988), quoting Spivak v. Sachs, 16 N.Y.2d 163, 168 (1965). "[T]his prohibition against the practice of law by one who is not a duly licensed New York attorney is ... placed on foreign attorneys ... because the requirements for admission vary in each State in addition to the fact that New York has a greater power to impose sanctions upon its own attorneys who do not keep within the minimum ethical confines New York has established. These factors help ensure that attorneys admitted in New York and practicing law there will practice ethically and with a certain minimum level of expertise." 18 Int'l, Ltd. v. Interstate Express, Inc., 116 Misc.2d 66, 67 (N.Y.Sup.Ct.1982).
It is undisputed that, prior to October 7, 2009, Schomer was engaged in the active practice of law while working at Sullivan & Cromwell and at Newman Ferrara, even though he was not duly licensed and admitted to practice in New York. Nonetheless, we are not prepared to conclude that Schomer was engaged in the "unauthorized" practice of law where the New York bar has seen fit to admit him to practice, thereby determining that his work at Sullivan & Cromwell and at Newman Ferrara did not constitute a violation of N.Y. Jud. Law § 478.
The matter (Schomer v. Board of Bar Examiners) was remanded for consideration on the merits. (Mike Frisch)