Lumbard, Mansfield and Mulligan, Circuit Judges. Lumbard, Circuit Judge (concurring).
MANSFIELD, Circuit Judge:
In this action by Martin Erdmann, a New York attorney, against members of the Appellate Division, First Department, State of New York, seeking declaratory and injunctive relief against disciplinary proceedings instituted by them against him on the ground that the proceedings violate his constitutional rights, he appeals from denial of preliminary injunctive relief and dismissal of his complaint. Federal jurisdiction is invoked pursuant to Title 28 U.S.C. §§ 1343 and 2201, et seq., and the federal Civil Rights Act, Title 42 U.S.C. §§ 1983 and 1985. We affirm.
On June 8, 1971 the Justices of the Appellate Division, First Department, State of New York, served upon Erdmann, a practicing member of the New York bar and trial attorney in charge of all criminal matters for the Legal Aid Society before the State Supreme Courts of the five counties of New York City, a petition and order to show cause charging him with violation of several of the precepts of the Code of Professional Responsibility, New York Judiciary Law Appendix (McKinney Supp.1971) and of the Canons of Professional Ethics, New York Judiciary Law Appendix (McKinney 1968). The charges were based upon portions of an article of approximately 10,000 words about Mr. Erdmann entitled "I Have Nothing to Do with Justice," which appeared in the March 12, 1971 issue of Life magazine. Erdmann's alleged unethical conduct was specified to be his assertion to the author of the article that:
"There are so few trial judges who just judge, . . . who rule on questions of law, and leave guilt or innocence to the jury. And Appellate Division judges aren't any better. They're the whores who became madams.
"I would like to [be a judge] just to see if I could be the kind of judge I think a judge should be. But the only way you can get it is to be in politics or buy it -- and I don't even know the going price."
He was also cited for a breach of ethics for characterization of him by the author of the article as follows:
"Erdmann's disrespect for judges . . . is so strong and all-inclusive that it amounts at times to class hatred. . . ."
On September 24, 1971, Erdmann instituted an action in the United States District Court for the Southern District of New York against each of the justices and the clerk of the Appellate Division, First Department. The complaint and accompanying affidavits filed in support of Erdmann's application for preliminary injunctive relief allege upon information and belief that in March 1971 the Justices of the Appellate Division, First Department, filed a grievance with the Committee on Grievances of the Association of the Bar of the City of New York grounded upon the alleged impropriety of the above comments and reported attitude, that the Committee decided that no disciplinary action should be taken and so informed Erdmann on April 30, 1971, and that despite this recommendation the Justices in June 1971 instituted the disciplinary proceedings against Erdmann now pending. Erdmann further alleges that the proceeding was brought by the Justices with the specific purpose of discouraging and preventing his exercise of his First Amendment rights, depriving him of freedom of access to the press, denying him the right to petition for redress of grievances, and in violation of his Fourteenth Amendment rights of equal protection and due process of law. He avers that he is being irreparably injured in that the charges have deterred him and other lawyers from criticizing the judiciary and have prevented him from candidly advising his subordinates as to the realities of state trial practice. His motion for preliminary injunctive relief was supported by affidavits of several lawyers and law professors emphasizing the public interest in permitting full and frank criticism of the judiciary by members of the bar.
In denying appellant's motion for a preliminary injunction and dismissing the complaint for lack of jurisdiction,*fn1 Judge Ryan relied upon the decision of this Circuit in Zuckerman v. Appellate Division, 421 F.2d 625 (2d Cir. 1970), which held that a civil rights action could not be maintained against the Appellate Division as a body, since it is not a "person" within the meaning of 42 U.S.C. § 1983. Where (as here) the Justices and the Clerk of the Appellate Division have been sued as individuals, however, we are persuaded by the reasoning of our brother, Chief Judge Friendly, expressed in Law Students Civil Rights Research Council, Inc. v. Wadmond, 299 F. Supp. 117, 123 (S.D.N.Y.1969) (three-judge court), affd. on other grounds, 401 U.S. 154, 91 S. Ct. 720, 27 L. Ed. 2d 749 (1971), that no sound reason exists for holding that federal courts should not have the power to issue injunctive relief against the commission of acts in violation of a plaintiff's civil rights by state judges acting in their official capacity. Accordingly, we conclude that jurisdiction exists and proceed to the merits.
The principal issue is whether, in view of the policy expressed by the Supreme Court recently in the sextet of cases headed by Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971),*fn2 Erdmann's complaint and supporting papers state facts entitling him to injunctive relief. In Younger the Supreme Court denied federal injunctive relief against a pending state criminal prosecution and held that because of the strong policy in favor of "the notion of 'comity,' that is a proper respect for state functions" and the Constitution's creation of a system in which the sensitivity of both state and federal courts must be recognized and balanced, such intervention should be permitted only under extraordinary circumstances, such as where the state proceedings have been instituted or prosecuted in bad faith or as part of a campaign of harassment which, unless restrained, would cause grave and irreparable injury without providing any reasonable prospect that the state court would respect and satisfactorily resolve the constitutional issues raised. See, e. g., Dombrowski v. Pfister, 380 U.S. 479, 85 S. Ct. 1116, 14 L. Ed. 2d 22 (1965). In thus reaffirming the long-established policy against federal intervention, see Stefanelli v. Minard, 342 U.S. 117, 72 S. Ct. 118, 96 L. Ed. 138 (1951); Cleary v. Bolger, 371 U.S. 392, 83 S. Ct. 385, 9 L. Ed. 2d 390 (1963), it was recognized that unless intervention were severely restricted, alert counsel would resort to federal relief as a readily available means of disrupting or subverting legitimate state prosecutions in which constitutional issues could be resolved by competent state trial and appellate tribunals.
Erdmann seeks to avoid application of the foregoing principles on several grounds. First he argues that the Appellate Division's proceeding against him is administrative rather than judicial in nature. We disagree. Although a state court may perform non-judicial functions, see Roudebush v. Hartke, 405 U.S. 15, 92 S. Ct. 804, 31 L. Ed. 2d 1 (1972), its conduct of disciplinary proceedings with respect to those admitted to practice before it amounts to a judicial inquiry.*fn3 The court alone admits an applicant to practice before it. Thereupon he becomes an officer of the court. The power to discipline, like the power to admit an applicant to membership of the bar, rests exclusively with the court. Theard v. United States, 354 U.S. 278, 77 S. Ct. 1274, 1 L. Ed. 2d 1342 (1957); People ex rel. Karlin v. Culkin, 248 N.Y. 465, 162 N.E. 487 (1928). The nature of the relationship between the court and attorneys admitted to practice before it was summarized by Justice Frankfurter, speaking for a unanimous court in Theard :
"The two judicial systems of courts, the state judicatures and the federal judiciary, have autonomous control over the conduct of their officers, among whom, in the present context, lawyers are included. The court's control over a lawyer's professional life derives from his relation to the responsibilities of a court. The matter was compendiously put by Mr. Justice Cardozo, while Chief Judge of the New York Court of Appeals. '"Membership in the bar is a privilege burdened with conditions" (Matter of Rouss, 221 N.Y. 81, 84, 116 N.E. 782, 783). The appellant was received into that ancient fellowship for something more than private gain. He became an officer of the court, and, like the court itself, an instrument or agency to advance the ends of justice.' People ex rel. Karlin v. Culkin, 248 N.Y. 465, 470-471, 162 N.E. 487, 489." (354 U.S. 278, 281, 77 S. Ct. 1274, 1276, 1 L. Ed. 2d 1342.)
Under § 90(2) of the New York Judiciary Law (McKinney's Consol.Laws, c. 30, 1968)*fn4 the Appellate Division of each judicial department in the state is given the exclusive power to resolve issues as to alleged misconduct of attorneys practicing within its jurisdiction. To implement this power it is vested with authority to hold a hearing to determine the facts of the alleged misconduct and to apply to them the relevant standards of conduct laid down in the Code of Professional Responsibility. Although the court, for practical reasons, invokes the assistance of bar associations and their committees to investigate and conduct hearings with respect to complaints regarding members of the bar, just as a federal court may employ special masters to hear and report, Rule 53, F.R.Civ.P., the disciplinary power continues to rest exclusively with the court. Indeed, in the First Department if the Grievance Committee of the Bar Association of the City of New York recommends disciplinary action, it refers the matter to the Appellate Division, which then holds a trial de novo before any disciplinary action may be taken. See Niles and Kaye, Spevack v. Klein: Milestone or Millstone ...