Lawyers hate proving the negative, unless of course they’re asking other lawyers to do so. In which case, game on!
For reasons that are not very exciting, I was helping someone research the mandatory CLE (continuing legal education) requirements for lawyers in New York. CT doesn’t have any CLE requirements, so I wasn’t aware of how harrowing it can be for someone who lives in a state that does. Here’s what NY requires if you are a new lawyer:
Now 32 credit hours may not sound like a lot, but I imagine it is, as with all else when it comes to lawyers and hours, deceptive.
Then I got thinking: what if I were admitted to practice in NY. Being a CT lawyer, would I have to earn these CLE credits? The answer is no, but that’s where it gets a little weird. NY provides an exemption for lawyers not practicing in the state (whether that means lawyers practicing in others states or simply lawyers who, regardless of whether they live in NY or not, do not engage in the practice of law there, is another question).
So, if you’re an attorney admitted to the bar in NY, but don’t practice, you should be okay. Just don’t ask the Bar Association [pdf]:
The issue of whether an attorney is practicing law in New York is a question of law that must be determined by the individual attorney. All members of the New York Bar are presumed to be practicing law in New York unless otherwise shown; the burden of proof is on the individual attorney. In determining whether an attorney is practicing law in New York, the attorney should be guided by case law and the Restatement of Law, Third, the Law Governing Lawyers, Chapter 1, §3. Attorneys who determine that they are not practicing law in New York must retain supporting documentation for audit purposes and comply with the requirements of §§1500.12(f) and 1500.22(n) of New York’s CLE Program Rules.
Neither the CLE Board nor its staff shall advise attorneys on the issue of whether their specific activities constitute the practice of law in New York.
So I would be presumed to be practicing in New York, despite my full-time job as a public defender in the State of Connecticut. And if the NY Bar Association comes knocking, the burden is on me to prove that I do not and have not practiced in the Empire State. Assume that I can get some statement from the public defender’s office here stating that I am, and have been, a full-time employee since Eve bit into that legendary apple. What does it prove? It proves that for the most part, I am a practicing lawyer in NY. How can I prove that I did not practice in NY on my days off or in my spare time or provide legal advice to a client in NY on weekends? (Not saying I did…)
And I have the backing of a state agency. What of the solo practitioner or the private law firm? What documentation proves that one did not do something? Documentation is generally generated when someone does something. Who creates a paper trail for something one didn’t do?
Does anyone have a clue how or why this was promulgated and how one deals with it? I’m sure there are non-practicing NY lawyers out there. What do you do? Anyone have any experience with this (and my condolences in advance, if you do)?
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