Petitioner, a disbarred attorney, applied to the Appellate Division for the Second Judicial Department for reinstatement to the bar. The court referred the matter to the Committee on Character and Fitness (the Committee). The Committee prepared a report for submission to the court in conjunction with its investigation to determine whether Petitioner was fit to practice law. Petitioner was never made aware of the fact that the report recommended his reinstatement. Despite this recommendation, the Appellate Division denied the application for reinstatement. Petitioner subsequently filed a second application for reinstatement, furnishing a memorandum of law and additional evidence as to his fitness to practice law. Without holding a hearing, the court denied the second application, even though his reinstatement was unopposed by the Grievance Committee, the Lawyer's Fund for Client Protection, and the Character Committee. Petitioner then formally requested access to all reports prepared by the Character Committee. His request was denied.

Whether an attorney seeking reinstatement to the bar is entitled to review reports prepared by the Committee on Character and Fitness regardless of the recommendations contained therein.

Yes. An attorney seeking reinstatement is entitled to review any reports issued by the Committee on Character and Fitness in order to address the concerns of the Committee and correct any possible misstatements.

State of the Law Before Citrin

Previously, the Second Department applied the same procedure to reinstatement proceedings that it applied to first-time bar applicants. According to this procedure, if the Committee recommends disapproval of the applicant, the report "shall include a statement of the grounds on which [the decision] is based, and a copy of [the decision] shall be served on the applicant." 22 N.Y.C.R.R. § 690.16. The Second Department read the statute narrowly, mandating disclosure of the report to a denied applicant but allowing discretion over disclosing the report to an approved applicant

In one case, the supreme court held that state rules dictating that "papers, records and documents" used in state bar admission or removal proceedings be sealed do not apply to the party at issue in those proceedings. Pasik v. State Bd. of Law Examiners, 451 N.Y.S.2d 570 (NY Sup. Ct. 1982). However, the court did not state whether these rules apply to fitness hearings generally or, more specifically, to deliberations of the Character Committee.

The Court of Appeals stated that procedural due process requirements must be satisfied in hearings denying admission or reinstatement to the bar. Mitchell v. Association of the Bar, 40 N.Y.2d 153 (N.Y. 1976). However, the Court did not elaborate on this point or specifically state the effect of this constitutional requirement on the lower courts' administrative procedures.

Effect of Citrin on Current Law

After Citrin, an applicant for reinstatement to the New York Bar has a right to review any report regarding reinstatement prepared by the Committee on Character and fitness. This is true regardless of the committee's recommendation regarding reinstatement. An applicant must have the opportunity to correct any errors in the Committee's report or to address the Committee's concerns. The ability to respond to the Committee's report is the applicant's only means of satisfying the burden of proof that he or she possesses the requisite character and fitness to resume the practice of law. Before any materials are sent to the applicant, the Committee may redact any confidential information, including Committee deliberations. An applicant does not, however, have the right to review a detailed statement of the Appellate Division's reasons for denying reinstatement.

Unanswered Questions

In Citrin, the Court of Appeals addressed the narrow issue of when an attorney is entitled to receive the report prepared by the Committee on Character and Fitness containing its recommendations on reinstatement. The opinion, however, does not require that the Appellate Division provide an attorney seeking reinstatement with a detailed statement about their decision. The Court does not address the differences between the rights of an attorney to challenge and address concerns of the committee and the rights of an attorney to address concerns of the court. The Court fails to provide guidance to attorneys seeking reinstatement in situations like Citrin where the Character Committee recommends reinstatement but the Appellate Division still denies the application.

Survey of the Law in Other Jurisdictions

After the Board of Examiners certified an applicant fit to practice law, the Supreme Judicial Court of Maine denied a motion for admission to practice. The court held that sufficiently detailed information, on which judgment was reached, must be given to the applicant as well as a reasonable opportunity to rebut or explain such evidence. In Re Feingold, 296 A.2d 492 (Me. 1972).

The state bar rules of Texas require that the Grievance Committee provide an attorney, against whom a complaint is filed, written notice of the complaint and a reasonable opportunity to defend him- or herself. However, if the court dismisses the complaint, the Committee need not notify the attorney of the action or decision. In a disbarment action, the Court of Civil Appeals held that the defendant was not denied due process when the Grievance Committee did not file a written complaint, the defendant was apprised by telephone of the charges against him, was prepared to testify and was afforded an opportunity to present his objections. Galindo v. State, 535 S.W.2d 923 (Tex. Civ. App. 1976).