Kimball, Application of

• Court: New York Court of Appeals
• Citation: 301 N.E.2d 436,33 N.Y.2d 586,347 N.Y.S.2d 453
• Parties: , 301 N.E.2d 436 Application of Harris L. KIMBALL, Appellant, for Admission to Practice as an Attorney.
• Decision Date: 03 July 1973

Page 453

347 N.Y.S.2d 453

33 N.Y.2d 586, 301 N.E.2d 436

Application of Harris L. KIMBALL, Appellant, for Admission

to Practice as an Attorney.

Court of Appeals of New York.

July 3, 1973.

Jeremiah S. Gutman, New York City, for appellant.

Louis J. Lefkowitz, Atty. Gen. (Daniel M. Cohen and Samuel A. Hirshowitz, New York City, of counsel), for respondent.

E. Carrington Boggan, New York City, for Gay Activists Alliance, amicus curiae.

PER CURIAM.

There should be a reversal and a remission to the Appellate Division, 40 A.D.2d 252, 339 N.Y.S.2d 302; 41 A.D.2d 780, 342 N.Y.S.2d 373, for a reconsideration of appellant's application for admission to the Bar. While appellant's status and past conduct may be now and has been in the past violative of accepted norms, they are not controlling, albeit relevant, in assessing character bearing on the right to practice law in this State. Notably, the Committee on Character and Fitness found appellant to be of good character and qualified at this time. With respect to the proceedings in the State of Florida, we accept the views expressed in the dissenting opinion at the Appellate Division.

GABRIELLI, Judge (dissenting).

I dissent and vote to affirm the order of the Appellate Division. The Committee on Character and Fitness withheld any recommendation for admission because of certain facts appearing in the application, in the face of and despite their report that the applicant possessed the requisite character and fitness for an attorney at law.

The applicant, admitted to the Bar of the State of Florida on April 24, 1953, was engaged in active practice there until he was disbarred in 1957 by the Supreme Court of Florida (State ex rel. Florida Bar v. Kimball, 96 So.2d 825 (Fla.)). His status there remains unchanged.

While we are not bound to accord full faith and credit to a foreign judgment of disbarment (U.S.Const., art. IV, § 1; 7 Am.Jur.2d, Attorneys at Law, § 20), high respect for a foreign determination will be given, but in the final analysis, the local court will make its own independent determination. That procedure has been followed in this case.

Following an arrest for committing an indecent and lewd act in a public place in the City of Orlando, Florida, the applicant was released on bail. He forfeited bail and charges were thereafter filed by the Florida Bar Grievance Committee. Following a testimonial hearing before a Referee consisting of three complete sessions at which detailed evidence was presented by the applicant, his witnesses, the other participant involved in the alleged act and the police officer, the Referee found that the applicant was committing an act of sodomy when apprehended by the police. Upon the evidence produced, the Supreme Court of Florida entered an order of disbarment. It is important to here note that the Appellate Division held that the findings of fact made below were substantiated by the evidence, all of which was submitted by the parties to the court below.

There is no merit to applicant's argument that the disbarment proceeding in Florida should not be considered against him for the advanced reason that the statute under which he was arrested in 1955, was held unconstitutional by the Supreme Court of Florida in 1971 (Franklin v. State, 257 So.2d 21 (Fla.)). That holding of the court was held to be prospective only and, incidentally, it has been held to have continued misdemeanor effect. In any event, the significant fact remains that at the time he was found by the Referee to have committed sodomy, it constituted a felony both in Florida...