F. Action Taken by the Character and Fitness Committee.
The Character and Fitness Committee has deferred action on Campbell's application and has determined that a hearing must be held to inquire into a variety of matters. Those matters subject to inquiry include: (1) past and current employment/resignations; (2) financial obligations/debts/payments status; (3) information provided by him in connection with his application for admission to the Pennsylvania Bar;
(4) circumstances of charges/arrests/dispositions in 1990; (5) specific questions about his current behavior/conduct or current impairment of his ability to perform the duties of a lawyer including inquiries into his exercise of responsibility in the handling of funds, history of trustworthiness, integrity and record of compliance with the deadlines, and other aspects of his background affecting the representation of clients. All of these topics of inquiry were noted in the Notice of Action taken by Committee on Character and Fitness and Notice of Hearing dated April 27, 1994. The hearing was initially scheduled for June 7, 1994, but apparently has not yet been held.
Several members of the Character and Fitness Committee have submitted affidavits in opposition to plaintiff's preliminary injunction motion indicating that they wish to question him about certain representations he made in his application relating to his employment and his outstanding student loan, with respect to which there appear to be some inconsistencies. They state, however, that they do not intend to question him with respect to his alleged past mental illness or any treatment he received in connection therewith. In other words, Campbell is welcome to raise the issue of his mental illness during the hearing by way of mitigation or explanation of his conduct, but the Committee members will not initiate discussion of his condition.
In his complaint, Campbell seeks the following relief: a preliminary and permanent injunction barring the further use of Question 18(c) on the Application Admission to the Bar; a preliminary and permanent injunction barring Ms. Vazzana and Mr. Greisberger from conducting a hearing or making other inquiries prior to certifying his admission to the Bar; and damages for pain and suffering in the amount of $ 300,000 against defendants Vazzana and Greisberger; and attorney fees no costs. In his current motion, plaintiff seeks to preliminarily enjoin further use of Question 18(c) and to preliminarily enjoin defendants Greisberger and Vazzana from holding any hearing or conducting any further inquiry before certifying his admission to the bar. For the reasons that follow, Campbell's request for preliminary injunctive relief as stated is denied.
Preliminary Injunction Standard
It is well-settled in this Circuit that a preliminary injunction may be granted where the movant demonstrates: (1) irreparable harm and (2) either (a) a likelihood of success on the merits or (b) the existence of serious question going to the merits of the case to make them a fair ground for litigation and a balance of hardships tipping decidedly in the movant's favor. Jackson Dairy, Inc. v. H.P. Hood and Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979) (per curiam). A higher standard applies, however, where the grant of a preliminary injunction will give the movant essentially all of the relief he seeks. In such an instance, the movant must establish both "a substantial likelihood of success on the merits, rather than merely a likelihood of success", Johnson v. Kay, 860 F.2d 529, 540 (2d Cir. 1988) (citing Abdul Wali v. Coughlin, 754 F.2d 1015, 1025-26 (2d Cir. 1985)) and a strong showing of irreparable harm, Doe v. New York University, 666 F.2d 761, 773 (2d Cir. 1981) (citing Clune Publishers' Association, 214 F. Supp. 520, 531, aff'd, 314 F.2d 343 (2d Cir. 1963); Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 1976)).
Admission to Practice
Membership in the bar of the State of New York "is a privilege burdened with conditions." Matter of Rouss, 221 N.Y. 81, 84, 116 N.E. 782 (1917), cert. denied, 246 U.S. 661, 38 S. Ct. 332, 62 L. Ed. 927 (1918). These conditions, as required by statute, must be satisfied by each proposed new member of the bar prior to admission. Application of Cassidy, 268 A.D. 282, 51 N.Y.S.2d 202, 204 (2d Dep't. 1944), aff'd, 296 N.Y. 926, 73 N.E.2d 41 (1947). Section 90(1)(a) of the New York Judiciary Law provides that an applicant for admission to practice law in the State of New York must provide certification by the State Board of Bar Examiners that the applicant has passed the bar examination and further that the appellate division is satisfied that the "person possesses the character and general fitness requisite for an attorney and counsellor-at-law". In order to evaluate applicants' character and fitness, pursuant to § 9401 of the New York Civil Practice Law and Rules, the appellate division appoints a Character and Fitness Committee whose members are responsible to investigate the character and fitness of each and every applicant for admission to the bar. A necessary prerequiste to admission to practice is the Committee's certification "that it has carefully investigated the character and fitness of the applicant and that, in such respects, he is entitled to admission." N.Y. Civ. Prac. L. & R. § 9404. In performing its responsibilities, the Character and Fitness Committee "functions as an arm of the Court in an advisory capacity." Association for the Preservation of Freedom of Choice, Inc. v. Wadmond, 215 F. Supp. 648, 650 (S.D.N.Y. 1963).
The process through which an application is reviewed by the Character and Fitness Committee is set forth in 22 N.Y.C.R.R. § 1022.34. The Committee may begin its investigation after an applicant has been notified that he has passed the bar examination. The investigation may include an interview of the candidate by a Committee member who may require the candidate "to furnish such additional information or proofs of good character as the committee . . . member . . . may consider pertinent." 22 N.Y.C.R.R. § 1022.34(d). If, following the investigation, the Committee approves the application, the Chairman then certifies to the Appellate Division that the applicant possesses the requisite character and fitness to practice law. 22 N.Y.C.R.R. § 1022.34(e). If the Committee does not approve the candidate's application for admission after its investigation, a hearing is then held. 22 N.Y.C.R.R. § 1022.34(f).
As the United States Supreme Court wrote in Schware v. Board of Bar Examiners of the State of New Mexico, "[a] State can require high standards of qualification, such as good moral character or proficiency in its law, before it admits an applicant to the bar. . .". 353 U.S. 232, 239, 77 S. Ct. 752, 756, 1 L. Ed. 2d 796 (1957). To this end, "state courts have traditionally been allowed wide discretion in the establishment and application of standards of professional conduct and moral character to be observed by their court officers." Erdmann v. Stevens, 458 F.2d 1205, 1210 (2d Cir.), cert. denied, 409 U.S. 889, 93 S. Ct. 126, 34 L. Ed. 2d 147 (1972). This discretion "arises out of a recognition of the special relationship between the attorney and the court which grants him a license to practice before it. . ." Mildner v. Gulotta, 405 F. Supp. 182, 192 (E.D.N.Y. 1975), aff'd, 425 U.S. 901, 96 S. Ct. 1489, 47 L. Ed. 2d 751 (1976); See also Matter of Anonymous, 74 N.Y.2d 938, 550 N.Y.S.2d 270, 549 N.E.2d 472 (1989). As a result, federal courts have been "particularly chary of intrusion into the relationship between the state and those who seek license to practice in its courts." Tang v. Appellate Division of the New York Supreme Court, First Department, 487 F.2d 138, 143 (2d Cir. 1973), cert. denied, 416 U.S. 906, 94 S. Ct. 1611, 40 L. Ed. 2d 111 (1974).
Each of the states, as well as the Commonwealth of Puerto Rico and the District of Columbia, establish moral character qualifications as conditions precedent to admission to the bar and the bar applicant bears the burden of demonstrating his good moral character. Konigsberg v. State Bar of California, 366 U.S. 36, 41 n.4, 81 S. Ct. 997, 1002 n.4, 6 L. Ed. 2d 105 (1961). In New York State, the character review has been defined to "encompass no more than 'dishonorable conduct relevant to the legal profession.'" Law Students Civil Rights Research Council, Inc. v. Wadmond, 401 U.S. 154, 159, 91 S. Ct. 720, 724, 27 L. Ed. 2d 749 (1971). See also In the Matter of Anonymous, 78 N.Y.2d 227, 232, 573 N.Y.S.2d 60, 63, 577 N.E.2d 51 (1991).
In a case analogous to that at bar, the New York Court of Appeals considered a challenge brought by a bar applicant who was denied admission after the Character and Fitness Committee concluded that the applicant lacked "the character necessary to discipline himself to control his standard of living and the amount of his indebtedness, thus showing a lack of financial responsibility necessary for an attorney." In the Matter of Anonymous, 74 N.Y.2d 938, 550 N.Y.S.2d 270, 549 N.E.2d 472 (1989). The applicant contended that the Character and Fitness Committee and the Appellate Division had denied his admission because of his bankruptcy in violation of 11 U.S.C. § 525.
In analyzing the issue, the Court of Appeals wrote
A determination of unfitness must rest not on the fact of bankruptcy, but on conduct reasonably viewed as incompatible with a lawyer's duties and responsibilities as a member of the Bar. To successfully establish a claim that 11 U.S.C. § 525 has been violated, an applicant must establish that insolvency, the filing of bankruptcy or the discharge of debt is the sole reason for denial of the application.